PEOPLE v. CASEAppellant’s Opening BriefCal.April 11, 2011 mene es meniieideunininanniian PA ee CUP Y SUPE:COURT COPY : IN THE SUPREME COURTOF THE STATE OF CALIFORNIA SUPREME COURT FILED APR 11 2011 Fredetigk K. Ohiirioh Clerk V. (Sacramento Superior Court No. @puiy CHARLES EDWARD CASE, | 93F05175) No. 8057156 PEOPLE OF THESTATE OF CALIFORNIA, Plaintiff and Respondent, Defendant and Appellant. © “APPELLANT’S OPENING BRIEF Appeal from the Judgmentofthe Superior Court | ofthe State of California for the County of Sacramento HONORABLE JACK SAPUNOR . MICHAELJ. HERSEK State Public Defender ROBIN KALLMAN State Bar No. 118639 Senior Deputy State Public Defender MARIA MORGA State Bar No. 197218 Deputy State Public Defender 221 Main Street, 10th Floor San Francisco, California 94105 Telephone: (415) 904-5600 Attorneys for Appellant DEATH PENALIY TABLE OF CONTENTS Page STATEMENT OF APPEALABILITY ............ 0.000: e eee 1 STATEMENT OF CASE 2.2.0... cece ee nen eens 1 STATEMENT OF FACTS ....... 0... c eee eee tenet e et neee 4 A. Guilt Phase... 0.2...ccceee eens 4 1. On the Day of the Murders, Appellant Went to The Office Bar with Sue Burlingame ................ 6 A Neighbor Heard Gunshots, and the Bodies Were Discovered ........ 00 cece cee eee eee eens 10 Appellant Came to the Home of Mary Webster, Who WasStill in Love with Him Even Though He Had Left Her for Another Woman .............. 12 The Day after the Murders, Webster Turned Appellant In .......... 0.2 eee eee eee 17 The Crime Scene, Physical and Forensic Evidence . 21 a. Manuel and Tudor Were Killed by Close- Range Gunshot Wounds to the Head....... 21 Expended Slugs, Shell Casings and Blood Were on the Restroom Floor, and a Divot Wasin the Floor Behind the Bar .......... 22 Unidentified Human Blood Was Found on the Shirt, but Could Not Have Resulted from the Shooting Alone .................... 22 Unidentified Human Blood Was Found Distributed on the Boots in a Pattern That Could Not Be Explained by the Shooting ... 23 TABLE OF CONTENTS Page e, Only a Small Amount ofHuman Blood Was Found in the Ford Probe on the Gear Shift Knob and Steering Wheel ............... 24 f. Appellant’s Fingerprints Were Not Found at the Crime Scene or on the Murder Weapon ...... eee eee eee eee 24 g. The Gun Seized from Webster’s House Was identified as the Murder Weapon and as Appellant’s Gun, but it Did Not Match the Descriptions of the Gun in Appellant’s Possession Before the Murders ........... 25 6. MonthsLater, Jerri Baker Revealed Statements Appellant Had Made Shortly After the Murders ... 27 7. Appellant Had Moneyat the Time ofthe Murders . . 32 8. Before the Murders, Appellant Had Made Various Statements About Hypothetical Robberies and His Prior Crimes ..... 0.0.0... cece eee eee eens 32 9. Appellant Had Been Violent Before............. 36 10. Appellant Made Incriminating Statements When Interrogated ........ 0.2... eee eee... 37 B. Penalty Phase ..... 0... eee eeeee eee 37 1. Evidence in Aggravation .................000- 37 a. Victim Impact Evidence ................ 37 b. Prior Felony Convictions and the Underlying Circumstances ...............00e eee eee 39 il TABLE OF CONTENTS Page 2. Evidence in Mitigation ...................000- 42 a. Appellant’s Family of Origin and Childhood ........... 0.0.2. c eee eee 42 b. Appellant’s Institutionalization ........... 45 c. Appellant’s Life in Indiana When Not in Prison ..... 2.2.2... eee eee eee 47 d. Expert’s Conclusions Regarding Appellant’s Psychological Development ....... wees 49 €. Institutional Adjustment ................ 50 ARGUMENTS......0. 0...ceceee nee en eees 52 I. THE ADMISSION OF APPELLANT’S MIRANDA-VIOLATIVE AND INVOLUNTARY STATEMENT, OBTAINED BY DELIBERATE DISREGARD OF HIS INVOCATIONOF HIS RIGHT TO SILENCE, AS WELL AS THE ADMISSION OF EVIDENCE DISCOVERED AS A RESULT OF APPELLANT’S UNLAWFUL INTERROGATION, REQUIRE REVERSAL 2.0.0... ccc cece cette nee nee 52 A. The Trial Court Ruled That Appellant Had Invoked His Right To Remain Silent as to the Subject of the Robbery- Murder, But That His Statement Was Nevertheless Admissible For All Purposes ......... 0.000000 02 cease 55 B. The Officers Violated Miranda When TheyPersisted in Interrogating Appellant after He Had Invoked His Right to Remain Silent and Plainly Stated That He Did Not Wantto Talk about the Sole Subject of the Interrogation — the Robbery-Murder ........ 0.0... 0c eee cece eee eee 66 ili TABLE OF CONTENTS Page Appellant’s Statement Was the Product of Psychological Coercion and Was Involuntary .................0000- 79 The Testimony of Greg Billingsley, Stacey Billingsley, and Sue Burlingame Was Also Inadmissible............ 83 1, The Evidence Was Obtained as a Result of Appellant’s Involuntary Statement and Was Therefore Inadmissible .....................-. 84 The Evidence Should Have Been Suppressed Because it Was Derivative of an Interrogation Strategy of Deliberately Ignoring Appellant’s Invocation of His Rights in Order to Circumvent Miranda ... 0...cts84 The Evidence Would NotInevitably Have Been Discovered ....... 0... 0s cece eee eee ene 92 The Unconstitutional Admission of Appellant’s Statement Was Prejudicial .... 0...eeeee eee 96 1, There Was Room for Doubt That Appellant Was Wearing the BloodstainedShirt and Boots on the Night of the Murders ....................-0-- 98 Apart from Appellant’s Statement, There Was Room for Doubt That Appellant Was at The Office Near the Time of the Murders ................ 102 There Was Room for Doubt That the Gun Was Appellant’s and Was in His Possession on the Night of the Murders .................-0..05. 105 The Physical Evidence Did Not Match the Prosecutor’s Theory of the Crime.............. 110 iv II. TABLEOF CONTENTS Page 5. The Evidence of Motive Pointed as Strongly Toward Webster as it Did Toward Appellant ..... 115 6. Mary Webster and Jerri Baker Lacked Credibility . 117 THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING MINIMALLY PROBATIVE BUT EXTREMELY PREJUDICIAL EVIDENCE OF APPELLANT’S BAD CHARACTER AND MARY WEBSTER’S TAPED INTERVIEW FOR THE SOLE PURPOSE OF SUPPORTING WEBSTER’S CREDIBILITY .................00....000. 121 A. The Trial Court Admitted Evidence That Appellant Told Webster He Had Committed Robberies, Assaults and Homicides in the Past, That Appellant had Assaulted - Webster’s Son and Former Roommate and That the Detectives Told Webster Appellant was a Liar Who Had Committed the Charged Murders and was a Dangerto Webster’s Safety, As Relevant to Webster’s Credibility . 122 1. Evidence ofAppellant’s Altercations with Greg Nivens and Randy Hobson .............. 125 2. Evidence That Appellant Told Webster He Was an Ex-Convict and a Bank Robber and That He Had Committed Robberies in the Past .............. 132 3. Evidence That Appellant Told Webster He Had Hurt and Killed People in the Past ............. 137 4. The Tape of Webster’s Interview with Detectives on June 21,1993... 0...eee 141 B. The Trial Court Abusedits Discretion Pursuant to EvidenceCode Section 352 in Admitting Evidence of Appellant’s Other Crimes and Webster’s Taped Interview with Law Enforcement ............ 0.000 c eee enue 148 TABLE OF CONTENTS Page The Evidence of Appellant’s Altercations with Greg Nivens and Randy Hobson WasFar More Prejudicial than Probative.................... 150 a. The Evidence Had Minimal Probative Value 2...cee ee eee ees 151 1. Appellant Did Not Dispute Webster’s Feelings Regarding Appellant or the Nature of Their Relationship ...... 153 2. The Evidence Failed to Establish That the Altercations Caused . Webster’s Fear ................. 157 3. Webster’s Feelings Regarding Appellant Were Established by Other Evidence ................. 158 The Evidence of Appellant’s Assaultiveness Was Inflammatory, and the Likelihood That it Would Have a Prejudicial Effect Was Heightened Because Appellant Had Not Been Prosecuted ...............0.00. . 161 The Limiting Instruction Was Not a Sufficient Safeguard Against the High Risk of Prejudice ... 2.2... eee eee eee 164 The Evidence That Appellant Told Webster He Was an Ex-Convict and aBank Robber and Had Committed Robberies in the Past Using Nu-Skin and Disguises Was Minimally Probative but Extremely Prejudicial ...................04.. 167 a. The Probative Value of the Evidence Was Scant ........-... 0c eee ee eens 167 vi TABLE OF CONTENTS Page b. The Evidence Was Highly Inflammatory and Likely to Have a Prejudicial Effect ... 171 C. Tt Was Unlikely That the Jury Would Be Able to Comply with the Limiting Instruction ....... 0... eee eee ene 172 Appellant’s References to Having Hurt and Killed People in thePast Were of Little Probative Value but Were Extremely Likely to Have a Prejudicial Effect ......... 20.0... cece ee eee 173 a. The Probative Value of the Evidence Was Low ..... 0.2... cee eee es 174 b. The Evidence Was Extremely Inflammatory, and Prejudicial Effect Was a Virtual Certainty ................000. 176 c. Despite the Limiting Instruction, There Was an Overwhelming Probability That the Jury Would Consider the Evidence as an Indication That Appellant Had a Propensity for Violence ........ 0.06.0. c eee eee eee 177 The Challenged Portions of Webster’s Interview with Detectives Were More Prejudicial than Probative ....... 0... cece eens 178 a. Webster’s Resistance to Believing Appellant Might Be Guilty Was Shownby Other Evidence ..................00-5 179 b. The Officers’ Statements to Webster Were Inflammatory and Highly Prejudicial ..... 181 C. The Limiting Instruction Was Ineffectual . . 183 Vii IT. IV. TABLE OF CONTENTS Page The Erroneous Admission of the Evidence Resulted in a Miscarriage of Justice That Requires Reversal of Appellant’s Convictions and Death Sentence .......... 184 The Erroneous Admission of the Evidence Rendered the Trial Fundamentally Unfair In Violation of the Due Process Clause of the Fourteenth Amendment ......... 190 THE TRIAL COURT ERRED IN ADMITTING EVIDENCE THAT APPELLANT HAD SOLICITED GREG BILLINGSLEY AND BILLY JOE GENTRY TO COMMIT OTHER CRIMES. 196 A. The Trial Court Admitted Evidence That Appellant Had Invited Greg Billingsley and Billy Joe Gentry to Participate in Robberies Which Had No Connection to the Charged Crime .............. 0.20 cece eee eee 196 Evidence of the Solicitations Was Inadmissible to Show Design or Plan... 1.0...eeeeee eens 201 The Erroneous Admission of the Solicitations Resulted in a Miscarriage of Justice That Requires Reversal of Appellant’s Convictions and Death Sentence .......... 212 The Error Rendered Appellant’s Trial Fundamentally Unfair in Violation of the Due Process Clause of the Fourteenth Amendment ........... 0... ccc e cece ees 213 THE TRIAL COURT ERRED IN ADMITTING APPELLANT’S STATEMENTS AS A GUEST SPEAKER AT THE MEETINGS OF ROBBERY INVESTIGATORS.................000005 216 A. The Trial Court Admitted Evidence of Appellant’s Statements to Two Groupsof Investigators Regarding His Past Experience As a Robber ................0- 216 Vili Hh iianeamshedSernenDEORE OH TABLE OF CONTENTS Page Appellant’s Statements to Robbery Investigators Were Irrelevant to Any Material Disputed Fact ............. 223 The Evidence of Appellant’s Statements to the Robbery Investigators Was More Prejudicial than Probative ..... 232 The Admission into Evidence of Appellant’s Statements to Robbery Investigators Resulted in a Miscarriage of Justice ....... 2.0.2... cee eee eee 235 The Error Rendered Appellant’s Trial Fundamentally Unfair In Violation of the Due Process Clause of the Fourteenth Amendment .............. 0.0.0.0 eee eeee 237 THE TRIAL COURT ERRONEOUSLY EXCLUDED RELEVANT EVIDENCE OF DETECTIVE REED’S INCOMPLETE INVESTIGATION ...............020000-. 239 A. The Trial Court Cut Off Appellant’s Attempt to Examine Investigating Officer Reed about His Knowledge of Inconsistent Witness Statements Regarding the Murder Weapon and Bloody Clothing ...................00- 239 The Trial Court Erroneously Precluded Appellant from Eliciting Evidence of Investigating Officer Reed’s Knowledge about the Murder Weapon and Bloody Clothing, Even Though the Evidence Was Relevant to Impeach Reed’s Credibility and Raise Doubt about the Prosecution’s Case by Showing That the Police Investigation Was Inadequate and Incomplete ......... 242 The Trial Court’s Error in Precluding Relevant Examination of Investigating Officer Reed about the Murder Weaponand the Bloody Clothing Violated Appellant’s State and Federal Constitutional Rights to Present a Defense and to a Fair Trial................. 247 ix VIL. TABLE OF CONTENTS Page The Trial Court’s Error in Restricting Appellant’s Examination of Investigating Officer Reed about the Murder Weapon and Bloody Clothing Requires Reversal of Appellant’s Convictions .............. 0... ee eee 249 THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED DUE PROCESS BY PERMITTING THE PROSECUTION TO PRESENT APPELLANT’S STATEMENT ON REBUTTAL RATHER THANIN ITS CASE-IN-CHIEF .. 252 A. C. After the Prosecutor Had Chosen Notto Present Evidence of Appellant’s Interrogation Statement in His Case-in- Chief, the Trial Court Nevertheless Permitted Him to Present Such Evidence as Part ofHis Case in Rebuttal .. 253 Evidence ofAppellant’s Statement Was Improper Rebuttal 20...eeeeens 254 1. Appellant’s Statement That He Had Seen Coverage | of the Killings on the Television News ......... 257 2. Appellant’s Statement That He Was At The Office On The Night of the Crime ................... 258 3. Appellant’s Statement That He Was Driving Jerri Baker’s Ford Probe on the Night of the Murders . . 263 4. Appellant’s Statement Regarding the Clothes and the Blood on the Clothes .................24. 266 Reversal Is Required ......... 0.0... cee eee eee eee 270 THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO TRIAL BY AN IMPARTIAL JURY BY RESTRICTING DEFENSE COUNSEL’S VOIR DIRE ABOUT SPECIFIC MITIGATING FACTORS ........ 00.0... cece ee ee eee 271 VII. TABLE OF CONTENTS Page The Trial Court Precluded Defense Counsel from Conducting Voir Dire on Specific Mitigating Factors Even Though Counsel Had Been Asking Such Questions ThroughoutJury Selection ................ 272 The Trial Court Improperly Restricted Defense Counsel’s Voir Dire on Mitigation, Resulting in Inadequate Voir Dire and a Potentially Biased Jury ................... 279 The Trial Court’s Error in Restricting Voir Dire On Specific Mitigating Factors Requires Reversal ......... 292 CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION ..... 0.0.0... eeeeeeee 296 A. Penal Code Section 190.2 Is Impermissibly Broad ...... 296 B. The Broad Application of Section 190.3(a) Violated Appellant’s Constitutional Rights ................... 297 The Death Penalty Statute and Accompanying Jury Instructions Fail to Set Forth the Appropriate Burden of Proof ....... 0.0.0... eee eee ee eee 299 1. Appellant’s Death Sentence Is Unconstitutional Because it Is Not Premised on Findings Made Beyond a Reasonable Doubt.................. 299 2. Some Burden of Proof Is Required, or the Jury Should Have Been Instructed That There Was No Burden of Proof .......... 0.00 cece ee ecueues 301 3. Appellant’s Death Verdict Was Not Premised on Unanimous Jury Findings .................... 302 Xi TABLE OF CONTENTS Page a. Aggravating Factors ................4. 302 b. Unadjudicated Criminal Activity......... 303 The Instructions Caused the Penalty Determination to Turn on an Impermissibly Vague and Ambiguous Standard ............. 0.000000 ee 305 The Instructions Failed to Inform the Jury That the Central Determination Is Whether Death Is the Appropriate Punishment ..................... 305 The Instructions Failed to Inform the Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required to Return a Sentence of Life Without the Possibility of Parole 20...eeecee 306 The Instructions Violated the Sixth, Eighth and Fourteenth Amendments by Failing to Inform the Jury Regarding the Standard of Proof and Lack ofNeed for Unanimity as to Mitigating Circumstances ..... 2.2... cece eee eee 307 The Penalty Jury Should Be Instructed on the Presumption of Life ...................0000. 308 Failing to Require That the Jury Make Written Findings Violates Appellant’s Right to Meaningful Appellate Review... 06... cee eee eee 309 TheInstructions to the Jury on Mitigating and Aggravating Factors Violated Appellant’s Constitutional Rights ..... 2... 0... ee eee eee eee 310 The Use of Restrictive Adjectives in the List of Potential Mitigating Factors .................. 310 Xi TABLE OF CONTENTS Page 2. TheFailure to Delete Inapplicable Sentencing Factors 2.0.0...ceeeee eee 310 3. The Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators .................-.-0005- 311 F, The Prohibition Against Inter-case Proportionality Review Guarantees Arbitrary and Disproportionate Imposition of the Death Penalty .............6...04. hace cee eees 312 G. The California Capital Sentencing Scheme Violates the Equal Protection Clause. ....... 0.0... c eee eee ee 312 H. California’s Use of the Death Penalty as a Regular Form of Punishment Falls Short of International Norms ...... 313 IX. REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF THE ERRORS.......... 0.0.00... ee eee eee 314 X. THE RESTITUTIONFINE IS UNLAWFUL BECAUSE THERE WAS INSUFFICIENT EVIDENCE OF ABILITY TO PAY AND BECAUSE THE COURT FAILED TO OFFSET THE FINE WITH THE AMOUNTOF DIRECT VICTIM RESTITUTION ORDERED................00 020 eee 317 A. The Restitution Fine Must Be Vacated Dueto Insufficient Evidence of Appellant’s Inability to Pay .............. 318 B. Even If the Restitution Fine Is Not Vacated, it Must Be Reduced by the Amountofthe Victim Restitution Order . 323 C. The Restitution Fine May Not Stand ................. 325 CONCLUSION 1.22.0...eecteens 327 CERTIFICATE OF COUNSEL ............. 00 c cece eee ees 328 Xill TABLE OF AUTHORITIES Page(s) FEDERAL CASES Aldridge v. United States (1931) 283 U.S. 308 2.ccccnet e teens 291 Anderson v. Terhune (9th Cir. 2008) 516 F.3d 781 2...ceeee 67, 68 Apprendi v. New Jersey (2000) 530 U.S. 466.0... ee eee ee cece neces 299, 304 Arizona v. Fulminante (1991) 499 U.S. 2792ccceens wena 96 Arnold v. Runnels (9th Cir. 2005) 421 F.3d 859 2...eee eee 67, 68 Ballew v. Georgia (1978) 435 U.S. 223 2.ceeee eee eens 302 Berghuis v. Thompkins (2010) 560 U.S.130 S.Ct. 22502ee67 Blakely v. Washington (2004) 542 U.S. 296... 0.0.0 0..04..Lecce eect ene eee 299, 304 Blystone v. Pennsylvania (1990) 494 ULS. 299 20cenceeens 306 Bowen v. Maryland (10th Cir. 1986) 799 F.20S93 0.eeeene 244 Boyde v. California (1990) 494 U.S. 370 2.eeeeee eee 306, 307 Bram v. United States (1897) 168 U.S. 532 2.ceene eee nee eee 81 XIV TABLE OF AUTHORITIES Page(s) Brewer v. Quarterman (2007) 550 U.S. 286 0...ceceeee eens 307 Caldwell v. Mississippi (1985) 472 U.S. 320...ceeeens 316 Carter v. Kentucky | (1981) 450 U.S. 288 20.cceee300 Chambers v. Mississippi (1973) 410 U.S. 2842.cenceeens 248 Chapmanv. California (1967) 386 U.S.18 20.2eecteen e ae Passim Chavez v. Martinez (2003) 538 U.S. 760 2...cetent e eens 84 Collazo v. Estelle (9th Cir. 1991) 940 F.2d 411. 2...eeee eee 80 Colorado v. Connelly (1986) 479 U.S. 157 20.cent nt e nee nenes 79 Cooperv. Fitzharris (9th Cir. 1987) 586 F.2d 1325 2...kenee 314 Crane v. Kentucky (1986) 476 U.S. 68320cmenee 248 Cunningham v. California (2007) 549 US.2 0.cccteen eee ene 304 Darden v. Wainwright (1986) 477 U.S. 168 20ceceteen eens 191 XV TABLE OF AUTHORITIES Page(s) Davis v. United States (1994) 512 US. 452 0eeneee nnn 67 Delo v. Lashley (1983) 507 U.S. 272. eeeeens 309 Dickerson v. United States (2000) 530 U.S. 428 20.ceceence eens 89 Donnelly v. DeChristoforo (1974) 416 ULS. 637 22.ccna 191, 314, 315 Duncan v. Henry (1995) 513 U.S. 364 00.cctte tne eneas 192 Eddings v. Oklahoma (1982) 455 U.S. 104 occtenes2... 280, 281 Estelle v. McGuire (1991) 502 U.S. 62 2.kceet eens 191, 256 Estelle v. Williams (1976) 425 U.S. 501 2...eceee nees 308 Fahy v. Connecticut (1963) 375 ULS. 852.encetenes 96, 120 Furman v. Georgia (1972) 408 U.S. 238 20.eenteen nene 296 Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 2.0...eeeeee 192 Gomez v. United States (1989) 490 USS. 858 00.eeeeens 293 TABLE OF AUTHORITIES Page(s) Gray v. Mississippi (1987) 481 U.S. 648 20.ceceeee tenes 293 Gregg v. Georgia (1976) 428 U.S. 153 0.ceeee e ent eeees 310 Harmelin v. Michigan (1991) 501 U.S. 957 2... eeeeee eee eee eee tees 303 Harris v. New York (1971) 401 U.S. 222 2...ccene veces 52, 78, 90 Harris v. Wood (9th Cir. 1995) 64 F.3d 1432 2.ceeene 315 Hitchcock v. Dugger (1987) 481 U.S. 393 26.cccent nen te en eens 316 Hicks v.Oklahoma (1980) 447 U.S.343ccceee eens 301, 306 Hutto v. Ross (1976) 429 US. 28 ceens 81 Jackson v. Denno a (1964) 378 U.S. 368 2... .......00.. Lee eee cece ee ee eesar 164 Jamesv. Illinois (1990) 493 U.S. 307 2...ccceect eens 77, 78 Johnsonv. Mississippi (1988) 486 U.S.578 2...eeecece n eens 304 Kansas v. Marsh (2006) 548 U.S. 163 2...cccee eee nee e ene 281 TABLE OF AUTHORITIES Page(s) Killian v. Poole (9th Cir. 2002) 282 F.3d 1204 2.0...ceeeee 315 Krulewitch v. United States (1949) 336 US. 440 ceeeee eens 164 Kyles v. Whitley (1995) 514 U.S. 41920ceceeens 243, 244 Lego v. Twomey . (1972) 404 U.S.477 000cnet e een ene 79 Lockett v. Ohio (1978) 438 U.S. 586 2...ceenee 280, 307, 310 Malloy v. Hogan (1964) 378 US. 1occcece e een eee 79, 81 Maynard v. Cartwright (1988) 486 U.S. 356 2...eeeeee eee 298, 305 McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 2.2... eeeee eee .. Passim McKoy v. North Carolina (1990) 494 U.S. 433 0...cetes 302, 308 Michigan v. Mosley (1975) 423 U.S.96 0...cteee neee 52, 71, 72 Michigan v. Tucker (1974) 417 US. 433 20ccceens 87, 89 Mills v. Maryland (1988) 486 ULS. 367 0.ceeeee eee 307, 308, 310 XVill TABLE OF AUTHORITIES Page(s) Mincey y. Arizona (1978) 437 U.S. 385 00cetene eesee 79 Miranda v. Arizona (1966) 384 U.S. 436 2...ceeens Passim Missouri v. Seibert (2004) 542 U.S. 600 2...ectenes 54, 84, 88, 89 Monge vy. California (1998) 524 U.S. 721 2.cccetn ences 303 Morgan v.Illinois (1992) 504 ULS. 719 2.ceceeens eee ee Passim Myers v. YIst (9th Cir. 1990) 897 F.2d 417 eect cette eee ee eee ee ee 303 Nix v. Williams . (1984) 467 U.S. 4312ccnet n ene enes 92 Oregon v. Elstad (1985) 470 U.S. 298 00.teeneens Passim Oregon v. Hass . (1975) 420 ULS. 714ooenenee 78, 90 Ring v. Arizona (2002) 530 U.S. 584 0.ccctees 299, 302, 304 Riverav. Illinois (2009) US. ,129S.Ct. 144920eee293 Romano v. Oklahoma (1994) SIZUS.1ccee nee beeen eee 191 xix TABLE OF AUTHORITIES Page(s) Roper v. Simmons (2005) 543 U.S. 551,554 2...ceeteens 313 Rosales-Lopez v. United States (1981) 451 U.S. 182 0ccna280, 291 Skipper v. South Carolina (1986) 476 US.1.teeneens 316 Spencer v. Texas _ (1967) 385 U.S. 55400eeen eens 164 Soria v. Johnson (Sth Cir. 2000) 207 F.3d 232 2.0...eeeeens 287 Stringer v. Black (1992) 503 US. 222 2eeetenes 311 Sullivan v. Louisiana (1993) 508 U.S. 275 0...cence 97, 119, 120 Tennard v. Dretke (2004) 542 U.S. 274 20ceeeee eens 289 Trop v: Dulles (1958) 356 US. 86 2...cecece eee eens 313 Tuilaepa v. California (1994) 512 U.S. 9672.eneeen ene 298 Turner v. Louisiana (1965) 379 U.S. 466 00.eeneens 279 United States v. Havens (1980) 446 U.S. 620 20.ceecece nee nes 77 TABLE OF AUTHORITIES Page(s) United States v. Johnson . (9th Cir. 2001) 256 F.3d 895 22...ceeeee eens 71 United States v. Lopez-Diaz (9th Cir. 1980) 630 F.2d 661 ©...eens71 United States v. Patane (2004) 542 U.S. 630 2...ceeeens 80, 84, 87, 89 United States v Ramirez-Sandoval (9th Cir. 1989) 872 F.2d 1392 1.0...cee12. 9 United States v. Sager (9th Cir. 2000) 227 F.3d 1138 2.0...ceeee ees 244 United States v. Scheffer (1998) 523 U.S. 303 2...eectnen enes 248 United States v. Soliz (9th Cir. 1997) 129 F.3d 499 2...ccs71 United States v. Thierman (9th Cir. 1982) 678 F.2d 1331 20.ceecee nes 72 United States v. Wallace (9th Cir. 1988) 848 F.2d 1464...ceeeee 315 Vasquez v. Hillery (1986) 474 ULS. 2542cecenee nees 296 Wainwright v. Witt (1985) 469 U.S. 412 0eteene nes 280 Walter v. Maass (9th Cir. 1995) 45 F.3d1355 2...eens257 XXi TABLE OF AUTHORITIES Page(s) Wardius v. Oregon (1973) 412 US. 47020eneeenes 307 Washington v. Texas (1967) 388 U.S. 14 0...cccenn tne e eee nee 248 Wiggins v. Smith (2003) 539 U.S. 510 12.0... eee,feet eee ee 281 Withrow v. Williams (1993) 507 U.S. 680 2...ceeteens 79 Woodford v. Garceau (2003) 538 U.S. 202 2...eeetence ence 192 Woodson v. North Carolina (1976) 428 U.S. 290 2.eeenes 302, 305, 307 Zant v. Stephens (1983) 462 U.S. 862. 20.ceeeens 297, 306 STATE CASES In re Gilbert E. (1995) 32 Cal.App.4th 1598 ..........0...2000. Deeb cece eee eee 53 In re Lucas (2004) 33 Cal.4th 682 2... 0.cccen eens 281 In re Marquez (1992) 1 Cal.4th 584 0.ccccee eens 316 In re Romeo C. (1995) 33 Cal.App.4th 1838 0.0...eee 156 People v. Alcala (1984) 36 Cal.3d 604 2...eeeee nnn 149 XXxli TABLE OF AUTHORITIES Page(s) People v. Alvarez (1996) 14 Cal.4th 155 2...ceeene eee 149 People v. Anderson (2001) 25 Cal.4th 543 0...eeeee 299, 300, 304 People v. Antick (1975) 15 Cal.3d 79,98 2...cceee 164 People v. Arias (1996) 13 Cal.4th 92 2.2...eeeeee 301, 306, 309 People v. Ashmus (1991) 54 Cal.3d 932 00.ceeene nes Passim People v. Avila (2006) 38 Cal.4th 491 2...ceeences 310 People v. Avila (2009) 46 Cal.4th 680 2.0.0...eeeeee 322, 323 People v. Bacigalupo (1993) 6 Cal.4th 457 2.0.ceceeee 306 People v. Babbitt (1988) 45 Cal.3d 660 2.0.0...eeeee es 223 People v. Balcom (1994) 7 Cal.4th 414 2...eeeene Passim People v. Balderas (1985) 41 Cal.3d 144 22.eens285 People v. Bey (1993) 21 Cal.App.4th 1623 2...ccccee 53 XXili TABLE OF AUTHORITIES Page(s) People v. Blair (2005) 36 Cal.4th 686 2...eceee 298, 300 People v. Bowers (2002) 87 Cal.App.4th 722, 2...oecece ees 190 People v. Boyer (1989) 48 Cal.3d 247 00...ceeeee 92, 94, 95 People v. Boyer (2006) 38 Cal.4th 412 20.eeeeens 78 People v. Bradford (1997) 14 Cal4th 1005 2...eeeee eee 53, 80, 86 People v. Branch (2001) 91 Cal.App.4th 274 22... eeecece eee eee 162 People v. Breaux (1991) 1 Cal.4th 281 2...eccee eee 305 People v. Brown (1981) 116 Cal.App.3d 820 20...ceceee 182 People v. Brown (1988) 46 Cal.3d 432 2...cece 190, 316 People v. Brown (1993) 17 Cal.App.4th 1389 2.0.2.0... 00. eee ee eee eee 162, 176, 187 People v. Brown (2004) 34 Cal.4th 382 22...ectenes 298 People v. Burgener . (2003) 29 Cal.4th 833 2...eceee eens 153 XXIV TABLE OF AUTHORITIES Page(s) People v. Butler (2003) 31 Cal4th 1119 2.0... eeeeee eee 320, 321, 322 People v. Cahill (1993) 5 Cal.4th 4782.096 People v. Carasi (2008) 44 Cal.4th 1263 2.0...eceee teee 282 People v. Carpenter (1999) 21 Cal-4th 1016 2...cence95 People v. Cash (2002) 28 Cal.4th 703 2.0... eeeeee ee Passim People v. Catlin (2001) 26 Cal-4th 81 2...cccee eee eens 207 People v Clark (1992) 3 Cal4th 41 oo...ceeeee 72, 73, 74, 75 People v. Clay (1964) 227 Cal.App.2d 87 20...eccece tees 182 People v. Coddington (2000).23 Cal.4th 529 20...ecccc ce eee eee eee eees 148 People v. Cole (2004) 33 Cal.4th 1158 20...ceeene 213 People v. Cook (2006) 39 Cal.4th 566 2... eeeeee ee 310, 311, 313 People v. Cooper (1991) 53 Cal.3d 771...cette eens 293 TABLE OF AUTHORITIES Page(s) People v. Cotter (1992) 6 Cal.App.4th 1671 2...eenes 325 People v. Cowan (2010) 50 Cal4th 401 2...eeeeens 135 People v. Crew (2003) 31 Cal.4th 822 2...ceeeee 256, 262 People v. Cunningham (2001) 25 Cal.4th 926 2...ceeee eens 294 People v. Daniels (1991) 52 Cal.3d 815 2...eeeeee 255, 256, 262 People v. Davenport (1985) 41 Cal.3d 247 2...ceceeee eee 311 People v. Davis (2009) 46 Cal.4th 539...ccceee e nee 85, 86 People v. Demetrulias (2006) 39 Cal4thbo...53 People v. DePriest (2007) 42 Cal4th) oo.cccnee eees 53 People v. Doolin (2009) 45 Cal.4th 390.22 2...tenes291 People v. Duncan (1991) 53 Cal.3d 955 2...eeeeens 307 People v. Easley (1983) 34 Cal.3d 858 2...ceeeee nee 288, 289 XXVi TABLE OF AUTHORITIES Page(s) People v. Edelbacher (1989) 47 Cal.3d 983 2...ceeens 296 People v. Edwards (1991) 54 Cal.3d 787 20...cee eee teen eens 288 People v. Ervin (2000) 22 Cal.4th 48 20.ceeete eee 290 - People v. Ewoldt (1994) 7 Cal.4th 380 2...cccee ences Passim People v. Fairbank (1997) 16 Cal.4th 1223 2.ceceeens 299 People v. Falsetta (1999) 21 Cal.4th 903...eeeeee eee 163, 177 People v. Farnam (2002) 28 Cal4th 107 2...ceeeee eens 182 People v. Fauber (1992) 2 Cal.4th 792 2.cccence teens 309 People v. Fierro (1991) 1 Cal.4th 173, 253 0...cee312 People v. Fletcher (1996) 13 Cal.4th 451,471 22.20... 0.0...cette eens 172, 188 People v. Friend (2009) 47 Cal.4th 1,40 2...cceee nes 262 People v. Fritz (2007) 153 Cal.App.4th 949, 962 2.0... ccc cee es 165 XXVii TABLE OF AUTHORITIES Page(s) People v. Frye (1994) 21 Cal.App.4th 1483 2...eee319, 320 People v. Gamache (2010) 48 Cal.4th 347 200eens322, 323 People v. Ghent (1987) 43 Cal.3d 739 2.0...cececent e ee e en eee 313 People v. Gibson (1976) 56 Cal.App.3d 119 2...eccee eee 165 People v. Gibson (1994) 27 Cal.App.4th 1466 2.0...eeeee ees 321 People v. Gonzalez (2005) 34 Cal.4th 1111 2...cccee ne ete eens 67 People v. Gonzalez (2006) 38 Cal.4th 932 2.0... 0... eee eee Lecce te tee eee e eee 153 People v. Gray (2005) 37 Cal.4th 168 20... ccc cee eee ene 151 People v. Green (1980) 27 Cal.3d 1.0.0... 0... eee eee eeeeck e eee eee ates 184 People v. Griffin (2004) 33 Cal.4th 53 20...ectte 245, 300 People v. Guerra (2006) 37 Cal.4th 1067 0.0.02eeccceen eae 79 People v. Guiton (1993) 4 Cal.4th 1116 2.0...ceceeee eee 187 XXVill TABLE OF AUTHORITIES Page(s) People v. Hamilton (1961) 55 Cal.2d 881 0...eeeeee 166 People y. Hamilton (1963) 60 Cal.2d 105 2...ceeeee 316 People v. Hamilton (1989) 48 Cal.3d 1142 2...eeeeee 311 People v. Harris . (2008) 43 Cal.4th 1269 2.0...eeeeeeens 153 People v. Hawthorne (1992) 4 Cal.4th 432eeeeee eee 299 People v. Hayes (1990) 52 Cal.3d 577 0...cece e eens 316 People v. Hennessey (1995) 37 Cal.App.4th 1830 22...eeeeee ees 320 People v. Hillhouse (2002) 27 Cal.4th 469 2...eeeeens 311 People v. Holloway (2004) 33 Cal4th 96 2...eeeene ee 82, 83 People v. Holt (1984) 37 Cal.3d 436 2...cccences 315 People v. Hughes (2002) 27 Cal.4th 287 2...eeteeeeenes 268 People v. Hughston (2008) 168 Cal-App.4th 1062 2.0.0.2...eeeee 92 XXIX TABLE OF AUTHORITIES Page(s) People v. Jablonski (2006) 37 Cal.4th 774 20.cecece nee eee 53 People v. Jackson (1980) 28 Cal.3d 264,333 ........ 0000.Lecce eee eee e ee eees 254 People v. Jenkins (2000) 22 Cal.4th 900, 990. 2...eeeeee eee 281, 287 People v. Jennings (1988) 46 Cal.3d 963 00.eeecee teenies 77 People v. Johnson (1993) 6 Cal4th 1 oo.cceeeee e ee ee 77 People v. Jones (1954) 42 Cal.2d 219, 222 2...cece223 People v. Karis (1988) 46 Cal.3d 612 2...ceeens Passim People v. Kelly (1980) 113 Cal.App.3d 1005 2.0...eeecece ee eee 307 People v. Kennedy (2005) 36 Cal.4th 595 2.eens298 People v. Kimble (1988) 44 Cal.3d 480, 496; 20...ceeeee 268 eople v. Kipp (1998) 18 Cal.4th 349 2...cceenes 206 People v. Kwolek (1995) 40 CalApp.4th 1521 2...eeeee ee 325 TABLE OF AUTHORITIES Page(s) People v. Lang (1989) 49 Cal.3d 991 oooeeeeee 228, 229, 232 People v. Laymen (1931) 117 Cal.App. 476 2.0.0...cccnee nee 245 People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137. 2...0.eeeee 301 People v. Lew (1968) 68 Cal.2d 774 ..... 0.00.00...ee226 People v. Lewis (2001) 25 Cal.4th 610, 637, ... 2.eeeee eee 149, 202 People v. Lewis (2008) 43 Cal.4th 415,529. 2...eeeee 225 People v. Livaditis (1992) 2 Cal.4th 759 2.eeeene 290 People v. Manriquez (2005) 37 Cal.4th 547 20.cecetenn eee 313 People v. Marshall (1996) 13 Cal.4th 799 2.ceene eens 248 People v. Martinez (2009) 47 Cal.4th 399, 425 20.cceens 280 People v. Martinez (2010) 47 Cal-4th 911 0...cceens 76 People v. Medina (1995) 11 Cal.4th 694 ........ 0... eee, beeen e neces 303 TABLE OF AUTHORITIES Page(s) People v. Montano (1991) 226 Cal.App.3d 914 2...eeeee 53 People v. Moore (1954) 43 Cal.2d 517 20.cectete nee 307 People v. Neal (2003) 31 Cal.4th 63 2...eeeee eee ee Passim People v. Noguera (1992) 4 Cal.4th 599 2...ceeens 289, 290 People v. Northrop (1982) 132 Cal.App.3d 1027 2.0...eeeeee 248 People v. Ortiz (1995) 38 CalApp.4th 377. 2...eeeee ee 165, 166 People v. Osslo (1958) 50 Cal.2d 75 2...Lecceences 269 People vy. Ozuna (1963) 213 Cal.App.2d 338. 20...cece eee 172 People v. Page (2008) 44 Cal.4th 1] 2.eeeeee 246, 247 People v. Partida (2005) 37 Cal.4th 428 2...eee 190, 213, 237 People v. Peevy (1998) 17 Cal.4th 1184 2...eceee 53, 89, 90 People v. Pinholster (1992) 1 Cal.4th 865 2...eeeeee 290 XXXli TABLE OF AUTHORITIES Page(s) People v. Prieto (2003) 30 Cal.4th 226 2...cceeees 300, 302 People v. Prince (2007) 40 Cal.4th 1179 2.ceceees 206, 207 People v. Randall (1970) 1 Cal.3d 948 0...cceen e eens 67 _ People v. Rice (1976) 59 Cal.App.3d 998 2.0.0... ee eee eeeeee eee eee eees 307 People v. Robinson (1960) 179 Cal.App.2d 624 0...eeeeee 256, 262 People v. Robles (2000) 23 Cal.4th 789 2...eenn eee nes 92 People v. Rodriguez (1986) 42 Cal.3d 730. ...........eee nee e eee eee Passim People v. Rundle (2008) 43 Cal.4th 76 21...ceeeens 76 People v. San Nicolas (2004) 34 Cal.4th 614 20.0eeee 86 People v. Scalzi (1981) 126 Cal.App.3d 901 2...ceceeee eee 245 People v. Schmeck . (2005) 37 Cal.4th 240 0...cceee eens 296 People v. Scott (1994) 9 Cal4th 331 0.cceee e ee eee 325 XXXili TABLE OF AUTHORITIES Page(s) People v. Sedeno (1974) 10 Cal.3d 703 0...ceeen enes 300 People v. Sengpadychith (2001) 26 Cal.4th 316 2...eeeteens 312 People v. Silva (1988) 45 Cal.3d 604 2...ceceees 73,74 People v. Smith (1984) 35 Cal.3d 798 2...cecenee en enes 248 People v. Snow (2003) 30 Cal.4th 43 2...ceceee ees 313 People v. Stanley (1967) 67 Cal.2d 812 2...eeeeens 243 People v. Stanley (1995) 10 Cal.4th 764 2...ccceee eens 297 People v. Stansbury (1995) 9 Cal.4th 824 20.ceeeens 92 People v. Stitely (2005) 35 Cal4th 514 2.ceeee eens 76 People v. Storm (2002) 28 Cal.4th 1007 2.0.2... eeeeee ee 81, 85, 86, 91 People v. Superior Court (1978) 80 Cal.App.3d 665 2.0...eceee eee 92 People v. Taylor (1990) 52 Cal.3d 719 0.0ceeee eee 302 XXXIV TABLE OF AUTHORITIES Page(s) People v. Thompson (1980) 27 Cal.3d 303 2... 2.ceeeee 149, 169, 255 People v. Thompson (1988) 45 Cal.3d 86 0... cececeetn n eee 228 People v. Torres (1995) 33 Cal.App.4th 37 oo.ecteens 182 People v. Turner (1994) 8 Cal:4th 137 2...ceeence een eee 245 People v. Valdez (2004) 32 Cal.4th 73 2...eeeeens 151, 246 People v. Wallace (2008) 44 Cal.4th 1032 2...eeeene 254 . People v. Ward (2005) 36 Cal.4th 186 2...cccee een eens 304 People v. Watson (1956) 46 Cal.2d 818 2...cceee eens Passim People v. Welch (1993) 5 Cal.4th 228. 20.ceeeen eee 142, 169 People v. Williams (1981) 29 Cal.3d 392 2...ccccc nes 284 People v. Williams (1988) 44 Cal.3d 883 20...cetteeens 302 People v. Williams (1997) 16 Cal.4th 634 2...ccccnn ence eee 79 XXXV TABLE OF AUTHORITIES Page(s) People v. Williams (1971) 22 Cal.App.3d 34 2.0... cence cnn ees 314 People v. Wilson (1969) 1 Cal.3d 431 0...eects 166 People v. Wilt (1916) 173 Cal. 477 20.0eeens 230 People v. Yu (1983) 143 Cal.App.3d 358 2.2...eceee ees 233 People v. Zambrano (2007) 41 Cal4th 1082 2...eeeens 291 People v. Zito (1992) 8 Cal.App.4th 736 2.0...eeeee 324, 325 Price v. Superior Court (2001) 25 Cal.4th 1046 2...eee148 State v. Hartley (1986) 103 NJ. 252 2oeete eees 91 STATUTES Evid. Code §§ 52cececnet e eens 301 B80eectnen e eens 182 210 Loe eeeeect 156, 224, 242 i)O 156, 223, 258, 263 B51eeeeens 242 aPassim 520 Lecce cece eee ene eee 301 01)Oa243 D858eteens 243 800 2ceeeen eens 182 182 XXXVI Gov’t. Code §§ Pen. Code §§ U.S. Const., Amend. Cal. Const., art. I §§ TABLE OF AUTHORITIES Page(s) 1101...eeeee eee Passim 1200 Loo. eeeee eee tees 245 1220 Loicee eee 219, 223, 225 1250 Lolcee eee eee 220, 223, 225 13967 Looeeee ees Passim 13967.2 0ccece eee eee 317, 324 187ceceeee ees 1 211L cece eee eens 1 190.2 .oeects 2, 296, 297 190.3 Looe ccee eee 297, 304, 306, 310 O53feeeeee eee eeee 199 1 2 1093 Loccee eee eee 254 1158a. ooeeeeebeens 303 1202. cccc eee eee 320 1202.1. Loocece eee++. 320 1203.03. ..... eee eee eeer 324 1203.06. ..........0..ne324 1202.4 20.eeences 319 1203.04. 2...ceeeee 317, 323 1239 Llcee cence eens 1 12022.5. Locce ec eee eee eens 2 2085.5 2.eee eee eee 317, 324 CONSTITUTIONS Occece cece teen eens 271 Boeeeete eee nee 309 14 Loc eee eee Passim Tccece nee eee ee eees 121, 216 ld Locceeeee Passim 16 occcee eee ees 271, 280 |121, 216 XXXVil TABLE OF AUTHORITIES . Page(s) JURY INSTRUCTIONS CALJIC Nos. 2.09 Loic ccc ce eens 131, 137 Passim 8.86eeeeee 299 8.87eee 190, 299, 304 8.88 eeee Passim COURT RULES Cal. Rules of Court, rule 4.421 0.0.00... cccccececeeceveeeeees 312 A423 Lleeteeeeee 312 TEXT AND OTHER AUTHORITIES 1 Wigmore, Evidence, § 194.......... 149 1A Wigmore, Evidence (Tillers rev. ed. 1983), §§ 58.2 ..... 178, 214 102...... 203, 225 103 .......... 225 2 Wigmore, Evidence (Chadbourn rev. ed. 1978),§ 304.......... 205 7 Wigmore; Evidence (Chadbourn rev. ed. 1978), § 1873 ......... 255 Black’s Law Dictionary (9% Ed. 2009) ...... 2.0... cece 70 The Presumption ofLife: A Starting Pointfor Due Process Analysis ofCapital Sentencing (1984) 94 YaleL.J.351 ....... 309 XXXVIli No. $057156 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, (Sacramento County V. Superior Court No. 93F05175) CHARLES EDWARD CASE, Defendant and Appellant. APPELLANT’S OPENING BRIEF STATEMENT OF APPEALABILITY This is an automatic appeal from a judgmentof death. (Pen. Code § 1239, sub. (b).)’ STATEMENT OF CASE On June 23, 1993, Sacramento County District Attorney filed a three-count complaint against appellant, Charles Edward Case. Count I charged the murder of Val Lorraine Manuel. (Pen. Code § 187, subd.(a).) Count II charged the murder of Gary Duane Tudor. (/bid.) CountIII charged the robbery of both Manuel and Tudor. (Pen. Code § 211.) In connection with the two murder counts, two special circumstances were ' All statutory references are to the California Penal Code unless otherwise indicated. alleged: multiple murder within the meaning of section 190.2, subdivision (a)(3), and robbery-murder within the meaning of section 190.2, subdivision (a)(17)G). The murder counts were each alleged to be serious felonies within the meaning of section 1192.7, subdivision (c)(1), and committed with a firearm within the meaning of section 12022.5, subdivision (a). CountIII wasalleged to be a serious felony per section 1192.7, subdivision (c)(19). (1 CT 16-18.) Also on June 23, 1993, appellant was arraigned on the complaint, and thecourt appointed the Indigent Criminal Defender Program to represent him; that agency assigned attorney Stacy Bogh to appellant’s case. (1 CT 1; 1 RT 1-5.) Appellant entered a plea of not guilty on August 19, 1993. (1 RT 13.) A preliminary hearing was held on October 26, 1993 (1 CT 24-132), and appellant was held to answer on all charges and allegations (1 CT 23). On that same date, the complaint was deemed an information, and appellant entered a plea ofnot guilty to all charges and deniedall allegations. (1 CT 127-129.) On December 1, 1993, attorney Hayes Gable was appointed as co- counsel for appellant. (1 CT 4.) Appellant’s trial began on March 11, 1996, with in limine motions. (1 CT 195.) On March 25 and 26, 1996, a hearing was held on appellant’s motion to excludehis post-arrest statement. (2 CT 421-422.) Jury selection began on March 26, 1996. (2 CT 433.) On May8, 1996, the jury and six * Citations to the record are abbreviated as follows: “CT”is used to refer to the clerk’s transcript on appeal, “Aug CT”is used to refer to the augmented clerk’s transcript and “RT”is used to refer to the reporter’s transcript. alternates were sworn to try the case. (2 CT 457.) On May 9, 1996, the court ruled that appellant’s post-arrest statement to law enforcement was admissible for all purposes. (2 CT 459.) On May 13, 1996, the court denied appellant’s motion to exclude certain testimony of Mary Webster. (2 CT 462.) On June 5, 1996, the court denied appellant’s motion to exclude evidence that appellant had solicited Greg Billingsley and Billy Joe Gentry to participate in other robberies, as well as appellant’s motion to exclude the testimony of Ted Voudouris and Brian Lee Curley regarding appellant’s pre-offense statements to robbery investigators. (2 CT 485.) On May 14, 1996, the guilt phase began with opening statements and the prosecution’s presentation ofits case-in-chief. (2 CT 464.) On June 18, 1996, the prosecution rested. (2 CT 493.) On June 27, 1996, the defense rested and the prosecution presented its case in rebuttal. (2 CT 499.) On July 2, 1996, the information was amended to add an allegation that count IJ, the robbery charge, was committed with the personal use ofa firearm within the meaning of section 12022.5, subdivision (a). (2 CT 501.) On July 2, 3 and 8, 1996, the parties presented closing arguments. (2 CT 501- 502.) On July 8, 1996, the jury was instructed and began deliberations; shortly thereafter, the jury asked to see Exhibit 55, the handgun, and that request was granted. (2 CT 572-573.) On July 9, 1996, the jury reached a verdict, finding appellant guilty of all counts and finding all special circumstance and enhancementallegations true. (2 CT 574-579.) The penalty phase began on July 30, 1996, with in limine motions. (2 CT 580.) On July 31, 1996, the prosecution presented its case in aggravation, and one defense witness testified by telephone. (2 CT 581.) On August 6, 1996, appellant began presenting the remainderofhis case in mitigation. (2 CT 585.) On August 8, 1996, the defense rested. (2 CT 587.) On August 12, 1996, the parties presented closing arguments, the jury wasinstructed and deliberations began. (3 CT 719.) On August 13, 1996, the jury returned a verdict of death. (3 CT 720.) On October 25, 1996, the court denied appellant’s motion to modify the verdict and sentenced appellant to death. With respect to Counts I and II, the murder counts, the court also imposed two consecutive five-year enhancements pursuant to section 12022.5. As to Count III, the court imposed a sentence of three years, plus a four year enhancement pursuant to section 12022.5, all of which were stayed pursuant to section 654. (3 CT 772-773, 785.) The court also imposeda restitution fine of $10,000 and direct victim restitution of $4,000. (3 CT 772-773, 785.) A notice of automatic appeal was filed on November4, 1996. (3 CT 786.) STATEMENT OF FACTS A. Guilt Phase At around 9:20 p.m. on Sunday, June 20, 1993, Father’s Day, the bodies of Val Manuel and Gary Tudor were found in the women’s restroom at a bar called The Office, in the East Sacramento community of Rancho Cordova. (12 RT 4301-4307, 4319.) Val Manuel had been a bartenderat The Office; Gary Tudor was a patron who sometimes helped Manuelclose the bar and occasionally tended bar himself. (12 RT 4295; 13 4769-4770.) Each had been shot twice in the head at close range. (12 RT 4407, 4411- 4413, 4438-4443.) Neither Tudor nor Manuel had any defensive wounds. (12 RT 4408, 4438.) The front door of the bar was locked, a side door had been propped open with a rock, the lights were on, the television was playing, and the cash register was standing open and contained only pennies. (12 RT 4318, 4355, 4357-4358.) According to the bar’s owner, $320 in bills and coins was missing. (13 RT 4774.) There were no eyewitnesses to the crime. The day after the murders, appellant’s ex-girlfriend, Mary Webster, contacted law enforcement, gave them a blood-stained shirt and boots and said that appellant had come to her residence the previous night wearing those clothes; she also turned in one hundred dollars, which she said appellant had given herat that time. (15 RT 5228; 18 6338, 6344.) She reported that appellant told her that he had shot two black men over a poker gamein the Del Paso Heights area of Sacramento. (14 RT 5069-5072.) She provided law enforcement with | - identifying information regarding appellant (15 RT 5232; 23 Aug CT 6624), who had multiple prior felony convictions for robbery and other crimes (23 RT 7719-7726).’ Shortly thereafter, sheriff's deputies arrested appellant at Webster’s residence and seized a gun which they found in a closet inside the home. (18 RT 6336.) They brought appellant to the station and interrogated him. During the courseofthe interrogation, appellant made various admissions, including that he was at The Office on the night of the murders until 8:55 p.m. (21 RT 7254), that the bloodstained clothes were his (21 RT 7256) and that the blood was from a shaving accident (21 RT 7256). He stated that the two people were alive when he left the bar. (21 RT 7256.) The prosecution’s case-in-chiefat the guilt phase relied heavily on the testimony of Webster, Jerri Baker and Sue Burlingame,all ofwhom were romantically involved with appellant at the time of the crime. Webster and appellant had previously lived together as boyfriend and girlfriend, but > Evidenceof appellant’s prior convictions was not presented to the jury at the guilt phase. approximately three months before the murders, appellant left her for Jerri Baker, his supervisor at McKenry’s, the drapery service and dry cleaners where he worked. (14 RT 4988-4989; 18 RT 6074-6075.) Webster was angry and hurt that appellant had left her for another woman, but wasstill in love with him and continued to see him whenever he and Baker were fighting. (14 RT 4989-4992; 15 5267-5268.) Appellant lived with Bakerat the time ofthe crime. (18 RT 6075, 6093, 6233.) Sue Burlingame had become romantically involved with appellant one week before the crime. (13 RT 4678-4679, 4749.) Also central to the prosecution’s case-in-chief were various statements purportedly made by appellant before the murders and evidence that he had committed acts of violence in the past. (14 RT 4971-4972, 4973-4975, 4981-4986, 4992-4993, 5032, 5044; 15 RT 5273- 5315, 5325-5327; 17 RT 5812, 5825-5861, 5868, 5974-5975; 18 RT 6103- 6014, 6019-6066.) The defense contended that Webster was a woman scorned and that she and her brother, Stephen Langford, had framed appellant for the murders. (16 RT 5636-5637; 22 RT 7404.) 1. On the Day of the Murders, Appellant Went to The Office Bar with Sue Burlingame On June 20, 1993, the day of the murders, Sue Burlingame was living with her daughter, Stacey Billingsley, and son-in-law, Greg Billingsley, both ofwhom worked at McKenry’s, where appellant worked. (12 RT 4504; 13 RT 4641-4642, 4661, 4669.)* On the weekendbefore, appellant stayed at the Billingsleys’ house for a few nights, as he had been had been fighting with his girlfriend, Jerri Baker. (12 RT 4505-4506; 13 * To avoid confusion, Stacey and Greg Billingsley are referred to by their first names. RT 4672, 4678-4679.) During appellant’s stay, he and Burlingame became romantically involved. The Sunday before the murders, they had coffee together in the morning and ended up talking with each otherall day long. (13 RT 4667.) They talked about playing pool and challenged each other to amatch. (13 RT 4679.) That evening, appellant took Burlingame to The Office. (13 RT 4679, 4681.) Appellant said that his ex-wife used to compete in pool tournaments there and he wantedto look for her. (13 RT 4680-4681.) He did not rememberthe nameofthe bar, and it took him 45 minutes and several wrong turns before he wasable to find it. (13 RT 4681, 4694.) Appellant and Burlingame played poolthere until about 1:00 a.m. (13 RT 4681.) The bartender told them that on Sundays, she made cabbage rolls and sold them at the bar. (13 RT 4721.) That night and the next night, appellant spent the night with Burlingame in her room. (13 RT 4678-4679, 4749.) On the day of the murders, appellant and Burlingame went to The Office together again. (13 RT 4641.) Appellant wanted to get some ofthe homemade cabbagerolls. that the bartender had said she brought on Sundays. (13 RT 4647.) Appellant picked Burlingameupat about 4:00 p.m. (13 RT 4642.) He was driving Jerri Baker’s Ford Probe. (12 RT 4517-4518; 13 RT 4643.) Burlingamegaveconflicting statements about what appellant was wearing that day. (13 RT 4647-4648, 4730, 4734, 4748; 21 RT 7013.)° At The Office, appellant and Burlingameplayed seven or ° Greg Billingsley thought appellant said he hadgotten in a fight with Webster, not with Baker. (RT 4570, 4576.) ° Attrial, she testified that he was wearing cowboyboots, Levi’s and a buttoned up short-sleeved shirt with a collar; the boots and shirt looked (continued...) eight games ofpool. (13 RT 4650.) There was a football game on television, and the other people in the bar were watching and cheering. (13 RT 4645.) Burlingame had a soda and appellant had a bottle of beer. (13 RT 4650.) They joked around; he kept saying she hadto pay for the next game, but then would not let her do so. (13 RT 4651.) Eventually, Burlingame paid for one game because appellant had only a twenty dollar bill, and the bartender could not make that much change. (13 RT 4732.) The bartender had not brought cabbagerolls after all. (13 RT 4655.) At about 6:30 p.m., Burlingame was getting hungry, so she and appellantleft the bar. (13 RT 4655.) After leaving The Office, Burlingame told appellant that she did not want to continue seeing him because he had gotten back together with his girlfriend, Jerri Baker. (13 RT 4656.) Crying, Burlingametold appellant that she did not want him to comebackto the Billingsleys’ house with her and did not wantto sit across the table from him and eat. (13 RT 4656- 4657.) At Burlingame’s request, appellant dropped heroff at the Dairy Queen, a block and a half from the Billingsleys’ house. (13 RT 4656.) She got back to the house at about 7:45 or 8:00 p.m. (13 RT 4658.) Tracy Grimes, a truck driver and long-time patron of The Office, wasat the bar on the night of the murders from about 8:30 to 8:40 p.m. (11 RT 4164-4167, 4171.) He wentthere to pick up some greenchili ° (...continued) like the ones in evidence, except that the boots did not have a stain. (13 RT 4647-4648.) Earlier, she had said that he was wearing a tan, brown and blue western style shirt. (13 RT 4730.) On another occasion, she had said he was wearing a maroon shirt with black and gray stripes. (13 RT 4734; 21 RT 7013.) On yet another occasion, she said he was wearing a bright maroon and grey striped short-sleeved button-front shirt. (13 RT 4748.) 8 enchiladas that Val Manuel had made. (11 RT 4171.) Manuel was tending bar; Tudor wassitting at the bar. (11 RT 4170.) Both were drinking beer. (11 RT 4172-4173.) Manuel seemed to have had quite a bit to drink. (11 RT 4178.) Grimesidentified appellant as one of the people whom he saw there that night. (11 RT 4171.) He had seen appellant there a couple of times in the previous week or two, always by himself. (11 RT 4170-4171, 4206.) Grimes had told appellant’s investigator that he had seen appellant in the bar six or eight times before the murders. (20 RT 6906.) Grimes’s description of the shirt and shoes that appellant was wearing onthe night of the murders varied. (11 RT 4176-4178 [a sport shirt and “roughed up” grayish-brown cowboyboots], 6896 [a pale solid colored shirt in Levi’s material and gray cowboyboots], 6920 [gray cowboy boots,no description of shirt].) According to Grimes, appellant went back and forth between the bar and the pooltable, where he played pool by himself. (11 RT 4170- 4171, 4173.) He seemedto be listening to-Grimes’s conversations with others; appellant smiled and laughed when they laughed. (11 RT 4191- | 4192, 4194.) He sometimesshot the cue ball back and forth without breaking the balls. (11 RT 4176-4177.) When he bent downto re-rack the balls, he did so in a peculiar fashion, with one leg off to the side. (11 RT 4177.) Law enforcement never showed Grimesany photosofpossible suspects. (11 RT 4208; 20 RT 6920.) Grimes admitted that between the time ofhis initial statement and the timeoftrial, he had seen appellant’s photograph in the Sacramento Bee, where he was identified as the suspect in the charged murders. (11 RT 4181, 4208; 24 CT 7129 [Exhibit 39].) Grimesalso told appellant’s investigator that he knew appellant was the killer because he had learnedthat they found blood on appellant’s hands, clothes and boots. (20 RT 6904.) 2. A Neighbor Heard Gunshots, and the Bodies Were Discovered Anita Dickinson and her fiancé, Randy Pickens, lived in a trailer behind The Office. (11 RT 4233-4234.) On June 20, 1993, Dickinson spent the evening doing laundry, going back and forth betweenthetrailer and the laundry room, which wasin the building that contained the bar. (11 RT 4236-4238.) Sometime between 7:30 and 8:45 p.m., she went into the parking lot behind The Office in order to move Pickens’s car into the garage. (11 RT 4240.) It was dusk. (12 RT 4265.) As she was approaching Pickens’s car, she heard what soundedlike a single gunshot. (11 RT 4240, 4246.) She ducked downin front of her own car, waited for a while, and then hurried back towardthetrailer. (11 RT 4246.) As she was struggling to get the gate open betweenthe building andthetrailer, she turned around and lookedat the cars in the lot. (12 RT 4267.) She saw several vehicles that she recognized, and one small compact two-door car that she had never seen before, parked next to a white Camarothat Pickens’s brother had left them. (11 RT 4240-4243, 4263-4264; 12 RT 4270-4271.) While Dickinson wastrying to get the gate open, she heard two moreshots in close succession. (11 RT 4247-4249.) She opened the gate, ran back into the trailer and told Pickens that she thought someone wasshooting in the bar. (11 RT 4249-4250.) Pickens, who was folding laundry inside the trailer, heard no shots. (20 RT 4278-4279.) After Dickinson told him what she had heard, he went outside and upto the bar’s fire exit, and listened through the door for 10-20 seconds; he heard nothing. (20 RT 4281.) He did not hear a car leave. (20 RT 42872.) 10 At trial, Dickinson described the compact car that she had seen in the parking lot that night as silverish-bluish, a light color, and about half the size of, and lower than, the Camaro. (RT 4268.) It lookedlike it could seat only two people. (12 RT 4271.) It was small, like a Honda or a Hyundai. (12 RT 4269.) Defense investigator Tony Ganetestified that Jerri Baker’s Ford Probe wasslightly taller than a Camaro. (20 RT 6832.) The Camaro was approximately 20 inches longer and 10 inches wider than the Probe. (20 RT 6823-6824.) Later that night, after the bodies had been discovered, Dickinson told one ofthe officers at the scene that she had not noticed any vehiclesin the parking lot other than the bartenders’ cars and the Camaro. (21 RT 7140- 7141.) Pickenstold officers that, in addition to the bartenders’ cars, he had seen a gray mid-size or compactcar in the parking lot that day, andthatit left the lot at about 8:00 or 8:30 p.m. (21 RT 7143.) A few days before Dickinson and Pickenstestified at appellant’s trial, the prosecutor showed them photographs.-of a car. (11 RT 4260; 11 RT 4292.) Dickinsontestified that the car in the photographs lookedlike the one that she had seen on the night in question, but she was not sure that it was the same one. (11 RT 4244-4245.) Pickenstestified that he had never seen the car in the photographs before the prosecutor had shown them to him. (11 RT 4292-4293.) At around 9:20 p.m. on the night of the murders, Leslie and Joe Lorman, regular patrons.of The Office ard close friends of Gary Tudor, stoppedat the bar so that Leslie could use the bathroom. (12 RT 4295- 4299, 4314-4315, 4320.) The lights were on but the front door was locked. | (12 RT 4301, 4316.) They entered through the side door, which had been propped open with a rock. (12 RT 4302, 4318.) Leslie Lorman wentto the | il women’s restroom and there discovered the bodies of Manuel and Tudor. (12 RT 4306-4307.) The Lormansdashed acrossthe street to a pay phone and called 911. (12 RT 4309-4310, 4321.) | 3. Appellant Cameto the Home of Mary Webster, Who WasStill in Love with Him Even Though He Had Left Her for Another Woman Mary Webster had met appellant one year before the murders, when appellant respondedto her ad in the “singles” section of the Sacramento Bee. (14 RT 4959-4961.) About two weeksafter appellant and Webster met, Webster invited appellant to move in with her, and he did so. (14 RT 4969.) Webster fell in love with appellant. (14 RT 4985, 4989.) Appellant took Webster to The Office on two occasions, both within the first couple of weeks after they met. (14 RT 4965, 4969.) He told her that his ex-wife used to play pool there and that he used to go to there to watch her. (14 RT 4966-4967.) During the time that appellant and Webster lived together, she lent him money to buy a gun, introduced him to a person whocould help him get ene and drove him to the place where he made the purchase. (14 RT 4994-4995.) She also helped him buy ammunition. (14 RT 4997; 17 RT 5909.) Any time that appellant was not working, he drank or was drunk. (16 RT 5658.) Several times, parole officers came to Webster’s house and poured out appellant’s alcohol, but they never arrested him. (16 RT 5661.) In January of 1993, appellant told Webster that he wanted to move out and date other women. (14 RT 4987.) In March of 1993, appellant moved out of Webster’s house and in with Jerri Baker. (14 RT 4988.) Webster continued to see appellant as often as every day, whenever he and Bakerwerefighting. (14 RT 4990.) Appellant and Webster went on dates 12 and were sexually intimate. (14 RT 4990-4991.) Webster wasstill in love with appellant. (14 RT 4992.) On June 20, 1993, the day of the murders, appellant called Webster at about 4:00 or 4:30 p.m.in the afternoon and said that he was going to comebylater. (14 RT 5000-5001; 15 RT 5170.) They had plannedto get together that day so that appellant could help her prepare for a meeting she wasto have the following day with the Social Security office. (14 RT 5001.) She had cashed two checks for Social Security benefits that she was not entitled to; she wanted appellant to help her get out of paying them back. (14 RT 5156.) Also, for three years, she had been getting paid about $350 a week and had notreported any of it as income. (14 RT 5157.) On the night of the murders, appellant arrived at Webster’s duplex at about 10:00 p.m. (14 RT 5002.) He camein without knocking and gave her a kiss. (14 RT 5003; 15 RT 5171.) Webster’s brother, Stephen Langford, wasasleep or trying to sleep on the livingroom couch. (14 RT 5003; 15 RT 5168.) Appellant went into Webster’s bedroom. (14 RT 5004.) Webster then noticed blood on appellant’s shirt and boots. (14 RT 5006; 15 RT 5173.) Appellant took offhis shirt and droppedit on the floor. (15 RT 5173.) He went toward the bathroom and took off his boots. (14 RT 5004; 15 RT 5174.) Appellant’s arms were “saturated” (14 RT 5008)or “layered” (15 RT 5178) with blood. There was no bloodon his blue jeans. (14 RT 5014.) Webster did not ask appellant about the blood because she felt it was none of her business. (14 RT 5008.) She started trying to clean the blood off of the boots with a brush. (14 RT 5006; 15 RT 5175-5176.) Appellant told her it would not comeoff, so she stopped. (15 RT 5177.) Appellant washed his armsin the bathroom sink. (14 RT 5008.) While he 13 was washinghis arms, he askedherto get rid of the shirt and the boots. (14 RT 5008, 5015; 15 RT 5209.) Webstertestified that appellant had a wad of moneysticking out of his pants pocket. (14 RT 5004; 15 RT 5181.) Either before or after he took off his boots, he took the wad out of his pocket, peeled off $125 and gaveit to Webster. (14 RT 5004; 15 RT 5179.) He owed her approximately $200 because ofa bet that they had made a couple ofweeksearlier. (14 RT 5004-5005.) Webster was inconsistent about the amount ofmoney appellant gave her (see 14 RT 5037; 16 RT 5673; 18 RT 6338; 19 RT 6345; 1 CT 85-86; 23 Aug CT 6615) and the denominations of currency in the wad (17 RT 5903 [ones, fives, tens and twenties]; 1 CT 86 [ones, fives and tens]; 23 Aug CT 6615 [ones andfives]). Afterappellant gave Webster the money, she went into the kitchen, while appellant stayed in the bathroom and washed up. (14 RT 5009; 15 RT 5177-5178, 5183.) When appellant came out of the bedroom,he was wearing a t-shirt and jeans and wasin his stocking feet. (14 RT 5015- 5016.) He asked Webster to go to the store for whiskey, Coke and cigarettes, and gave her some more moneyfrom the wad in his pocket. (14 RT 5009; 15 RT 5185.) Webster did as appellant requested. (14 RT 5009.) Whensheleft for the store, she saw Jerri Baker’s car parked in front of her house. (14 RT 5010.) After Webster returned from the store, appellant told her that he been in Del Paso Heights, playing cards with some other men. (14 RT 5012.)’ Hesaid he had won a hand, but two black men would notlet him have the 7 Webster made inconsistent statements about the numberofother men involved in the card game. (See 14 RT 5011 [seven]; 23 Aug CT 6617 [five].) 14 pot, so he pulled out his gun,fired one roundinto the table, and then shot the two men twice each. (14 RT 5012; 16 RT 5667.)® Webster asked appellant if the men were moving whenheleft, and he said no. (14 RT 5012.) Webster then asked appellant what he had donefor Father’s Day. (14 RT 5015.) Appellant told her that Baker had bought him a pair of shorts and that she wanted to go to Reno and get married. (14 RT 5016.) Appellant asked Webster to get his gun out of Baker’s car. (14 RT 5017; 15 RT 5190.) He gaveher the car keys, and she retrieved the gun, which wasin a closed box on the front seat on the passenger’sside of the car. (14 RT 5017; 15 RT 5192.) The car was cluttered with Coke cans. (14 RT 5018; 15 RT 5194.) Webster did not see any blood in the car. (15 RT 5194; 21 RT 7104.) She went back into her house and handed appellant the box with the gun. (15 RT 5195.) Her brother, Stephen Langford, sat up on the couch and said he wantedto look at the gun, but appellant said no. (14 RT 5018; 15 RT 5195-5196; 16 RT 5675.) Appellant took the gun out of the box and unloaded four bullets from it. (14 RT 5018-5019; 17 RT 5912 .) He put the gun and the ammunition back in the box and told Webster to keep it. (14 RT 5019; 17 RT 5910.) Webster put the gun in her closet. (14 RT 5020.) Webstertestified that appellant borrowed a thermal shirt from her, kissed her goodbyeandleft in his stocking feet at around 11:00 p.m. (14 RT 5016, 5020; 15 RT 5207-5208.) As he was leaving, he whispered in her ear that he would probably get caught because he hadleft fingerprints, and . that she should keep the gun and giveit to Bill Williams, a friend who 8 She had told detectives that appellant said he had fired seven to nine shots. (20 RT 6979.) 15 would be getting out ofjail in September. (14 RT 5017.) After appellant left, Webster put the bloodstained shirt and boots in a paper bag and tossed it in a dumpster at a nearby apartment building. (14 RT 5021; 15 RT 5209.) She then went back home and went to bed. (14 RT 5021; 15 RT 5209.) Langford contradicted Webster in several respects. He confirmed that.he was at Webster’s house on the night of the murders when appellant arrived, but testified that at that time, appellant was wearing ligh-colored pants, a light shirt and cowboy boots. (20 RT 6699.)? Twodays after the murders, Langford told detectives that he did not see any blood on appellant or his clothes that night. (20 RT 6953.) At trial, he testified that he saw something plastered all over appellant’s clothes, but it did not look like blood; he found outlater that it was. (20 RT 6699.) Langford confirmed his sister’s testimony that appellant told them he had gotten into a fight over a card gamein Del Paso Heights and had shot two black men. (20 RT 6701.) Langford had previously told detectives that appellant said the card game wasin North Highlands. (20 RT 6956.) Langford said he did not see any money in appellant’s possession that night. (20 RT 6957.) Langford _made conflicting statements about who brought the gun into the house from the car (20 RT 6704-6705 [Webster], 6955 [appellant]; 21 RT 7043, 7086 [Langford]) and whether he had seen the gun before (20 RT 6703-6704, 6720, 6728, 6959; 21 RT 7046). He testified that when the gun was retrieved from the car, its barrel was still warm. (20 RT 6704.) Defense criminalist Peter Barnett tested the gun to determine the rate at whichits barrel cooled off, and found that the barrel returned to room temperature ° In another statement, Langford had said appellant was wearing white pants and a gray and yellow shirt. (21 RT 7086.) 16 within 15 to 20 minutes after the gun was fired. (19 RT 6414.) Langford admitted that Webster had written two or three pages of notes regarding what had happenedonthe night of the murders, that he had read that document before testifying and that he had changedhis version of events after reading it. (20 RT 6740-6743.) 4, The Dayafter the Murders, Webster Turned Appellant In Webstertestified that she got up the next morning, June 21, 1993, at her usual time and headed:for work, but on the way there, she stopped and called Detective David Ford. (14 RT 5021, 5023; 15 RT 5213-5214.) Webster knew Ford because he had investigated her for bilking thousands of dollars from a 78-year-old man named Clyde Miller. (14 RT 5069- 5072.) Webster had been Miller’s caregiver, and ultimately admitted to Ford that she and two other individuals, Dale Michels and Jane Perry, had ‘concocted stories to persuade Miller, a lonely widower, to write them checks or otherwise provide them with large sums of money. (14 RT 5080- 5096.) According to Ford, Webster obtained from Miller a gun, $3,500 for a house, $2,000 to pay off a loan, a $13,000 car and three rings, one of which was valued at $8,000. (14 RT 5079-5083, 5094, 5097, 5102, 5104.) -Over a two-year period, Webster and Miller made withdrawals on Miller’s bank accountat least 100 times, often several times a week, until the bank referred the matter to the county conservator. (20 RT 6773-6774, 6790- 6792.) A conservatorship was established for Miller’s financialaffairs, after which Webster attempted to deposit two checks from Miller totaling $8,580. (14 RT 5083.) When she wastold that the checks were no longer valid because of the conservatorship, she became verbally abusive toward the deputy public guardian. (20 RT 6772-6777, 6790-6796.) Webster was 17 never prosecuted. (14 RT 5071.) Webster gave some ofthe jewelry to Ford and helped him apprehend Michels and Perry. (14 RT 5102, 5113, 5122, 5125-5126.) On the morning of June 21, 1993, at 7:57 a.m.,Webster called Ford and told him that she had some bloody clothes and boots and a gun. (14 RT 5073-5074, 5110.) She said that her boyfriend, whom sheidentified as “Charles Casey,” had come homethe night before wearing the bloody clothes and boots, told her he had shot two people in Del Paso Heights, gave her the gun and told her to keep it, and gave her the bloody clothes and told her to get rid of them. (14 RT 5074-5075, 5108-5110.) She told Ford she had thrown awaythe bloody clothes, which she identified as a pair of Levi’s and a shirt. (14 RT 5076, 5110-5111.) She said she had the gun, whichshe describedas a silver-colored .45 caliber semi-automatic. (14 RT 5073, 5108.) Ford told her to bring everything to him. (14 RT 5075.) Webstertestified that after talking with Ford, she went back to the dumpster, retrieved the clothes and boots and set out for the sheriff's department. (14 RT 5025.) Along the way, she stopped and called her friend, Arlene Eshelman, and told her the same story that she had told Ford. (15 RT 5249.) Eshelman told Webster to turn everything including appellant in to the police. (15 RT 5250.) Webster called Eshelman two or three moretimesover the course of less than 45 minutes. (15 RT 5246- $247, 5262.) Webster also called Randy Hobson, her former roommate, and told him the story. (15 RT 5273, 5285, 5287.) Hobson advised herto surrenderthe evidenceto the first police officer that she could find. (15 RT 5288.) At 9:47 a.m., Webster waved down Sacramento Police Officer Dennis Biederman as he drove by herin his patrol car; she asked him if 18 there had been any shootings in the Del Paso Heights area the night before. (15 RT 5226-5227.) He asked why she wanted to know; she responded that the night before, her boyfriend had cometo her house covered in blood and said he had shot and killed two men during a card game in Del Paso Heights. (15 RT 5227, 5231.) She said that he had a .45caliber revolver with him and the revolver had four empty shells in it. (15 RT 5229-5230, 5237.) She said that her boyfriend had given her the gun, the boots and the shirt and told her to get rid of them, and that she hadthe shirt and the boots with her. (15 RT 5231, 5234.) Biederman radioed hisoffice and wastold that there had been no report of any shooting in Del Paso Heights, but there had been a double homicide in Rancho Cordova. (15 RT 5228.) Biederman and his sergeant escorted Webster to the Sheriff's Department, where they gave detectives Reed and Edwardsthe shirt and boots that Webster had turned over to them. (14 RT 5028-5030.) Webster was interviewed by detectives Reed and Edwards. (18 RT 6335.) The interview was tape recorded, and a redacted version of the tape was played for appellant’s jury. (18 RT 6341; 23 Aug CT 6611-6649 [Exhibit 94-A (transcript ofExhibit 94)].) During the interview, Reed and Edwards told Webster repeatedly that appellant was lying when hetold her he had shot two menin Del Paso Heights. (See, e.g., 23 Aug CT 6631, 6639.) They told her that there had been a double homicide in Rancho Cordova and that appellant committed it. (23 Aug CT 6629, 6636, 6644.) They urged her to give them the gun that appellant had broughtto her house. (23 Aug CT 6627, 6628, 6636, 6642.) Webster wasresistant to believing that appellant had committed the killings at The Office and to handing over the gun (see, e.g., 23 CT 6620, 6629, 6632-6635), but ultimately she relented (20 RT 6694; 23 CT 6648). She said she would not 19 testify against appellant, as she wasafraid ofretaliation. (14 RT 5044.) She called her house to see who was home,expecting it to be her brother or her son. (14 RT 5037-5038.) Appellant answered the phone. (14 RT 5038.) The officers turned on a tape recorder and recordedpart of the conversation:, appellant asked Webster if she had gotten rid of the “stuff,” and Webster respondedthat she had. (14 RT 5038.) Appellant asked herif she had putit all in one place, and Webster said she had not. (14 RT 5039.)'° Websterdid nottell appellant that she had retrieved the items or that she wasat the sheriffs office. (14 RT 5039.) After the phone conversation, Reed and Edwards went to Webster’s house and arrested appellant, who did notresist. (14 RT 5040; 18 RT 6346.) In a bedroom closet, officers found a large box containing a smaller box which,in turn, contained a gun, the magazine from the gun, a box of ammunition and someindividual loose rounds. (17 RT 6001-6006; 18 RT 6337.) On the day that appellant was arrested, Webster found out that appellant had been seeing Baker when Webster and appellant were living together. (16 RT 5637.) One of the deputy sheriffs told Webster that appellant and Baker were fooling aroundat the cleaners on Saturdays, after Webster dropped him off, and that on Sundays when appellant took Webster’s car, he used to pick Baker up and take her on dates. (16 RT 5639.) Webster found out that there were other womenalso. (16 RT 5639.) Onthe day of appellant’s arrest, his picture appeared on television. (16 RT 5640.) Webster was told that numerous womencalled the sheriff's 10 At trial, Webster denied that when appellant asked if she had gotten rid of the “stuff,” he was referring to drugs. (17 RT 5927-5928.) 20 department, expressing concern and saying that they could not believeit was him. (16 RT 5640-5641.) Websterfelt like she had been used. (16 RT 5641.) She was very angry. (21 RT 6982.) The day after appellant’s arrest, she told detectives that she was going to get even with appellant for lying to her. (21 RT 6982, 6994.) 5. The Crime Scene, Physical and Forensic Evidence a. Manuel and Tudor Were Killed by Close-Range Gunshot Woundsto the Head The bodies of Manuel and Tudor were found onthe floor of the women’s restroom at The Office. (12 RT 4343.) Forensic pathologist Gregory Reiber performed autopsies on the bodies. (12 RT 4405.) Tudor had two perforating gunshot woundsto the head. (12 RT 4407, 4409.) One was a contact wound,in which the endofthe barrel of the weapon was actually touching the skin. (12 RT 4411.) The other appeared to have been fired with the gun barrel one to six inches from the skin. (12 RT 4413.) Reiber opined that Tudor was either crouched or kneeling when shot. (12 RT 4431.) Manuel also had been shot in the head twice. (12 RT 4438- 4439.) One shot wasfired at a range of two to four inches; the other at a range of between six inches and twoto three feet. (12 RT 4442-4443.) Manuel could have been standing, crouched or kneeling when shot. (RT 4448.) Reiber could not determine the order in whichthe shots had been fired or whom hadbeenshotfirst. (RT 4410, 4441, 4480.) Neither Tudor nor Manuel had any defensive wounds. (12 RT 4408, 4438.) 21 b. ExpendedSlugs, Shell Casings and Blood Wereon the Restroom Floor, and a Divot Wasin the Floor Behind the Bar Four expendedslugs and shell casings and a large amount of blood were found on the floor of the women’s restroom. (12 RT 4343-4346, 4852; 14 RT 4890-4896; 15 RT 5381.) One expended casing_and three small slug fragments. were found on the floor behind the bar, near a divot in the floor. (14 RT 4901-4903, 4928.) Trainee crime scene investigator Darryl Meadowsopined that the divot was fresh and that a round had been fired into the floor. (14 RT 4903-4904.) c. Unidentified Human Blood Was Foundon the Shirt, but Could Not Have Resulted from the Shooting Alone Theshirt that Webster turned in to police was entered into evidence as Exhibit 54-A. (14 RT 5007.) It had short sleeves, was red and black striped and hadbloodstains on the left front, the left sleeve and theleft side of the back, as well as a small amount on the right front. (19 RT 6407, 6488.) Seven samples from the shirt tested positive for human blood. (16 RT 5483-5484.) ABOtyping indicated that samples-taken from stains on the left front and on the-back could have been Manuel’s blood, but could not have been appellant’s or Tudor’s; samples of the stains on the right front could have been Manuel’s or Manuel’s and Tudor’s blood combined, but not appellant’s. (16 RT 5485-5486.) No DNAtesting was done. (16 RT 5465.) Reiber opined that, even if the shooterfired the gun with hisleft hand, the blowback would not account for the amount of blood on theleft arm andside ofthe bloody shirt entered into evidence. (13 RT 4434-4435.) 22 In the opinion of defense criminalist Peter Barnett, the blood on the shirt could not have resulted from the shooting alone. (19 RT 6485-6493.) Someofthe stains were transfer stains and some were low or medium velocity, not the kind of stains produced by a gunshot. (19 RT 6493.) A person would not have been layered in blood from his elbowsto his hands from conducting the shooting in this case. (19 RT 6515.) d. Unidentified Human Blood Was FoundDistributed on the Boots in a Pattern That Could Not Be Explained by the Shooting The boots that Webster turned in to police were entered into evidence as Exhibit 46. (14 RT 5000.) Criminalist Mary Hansen found human bloodstains in five areas on the right boot. (16 RT 5480-5481.) Defense criminalist Barnett observed a large smeared blood stain on the right toe and some smaller spatter on the instep area and on the front edge of the right heel block. (19 RT 6494-6495.) Hetestified that the stains on the right boot could not be explained by the shooting. (19 RT 6494-6501.) On the left boot, Hansen found small stains whichtested presumptively positive for blood. (16 RT 5483.) Barnett noted spatter along the vertical front edge of the left heel and a few medium velocity spatters from the middle to the outer edge ofthe left toe. (19 RT 6497.) Barnett found it perplexing that there was a great deal of blood on theright shoe and very little on the left. (19 RT 6500.) In Barnett’s opinion, it was possible that someone took the shirt and boots and deliberately put blood on them from the scene. (19 RT 6507.) 23 e. Only a Small Amount of Human Blood WasFoundin the Ford Probe on the Gear Shift Knob and Steering Wheel Mary Hansen,criminalist with the Sacramento County crime lab, examined Jerri Baker’s Ford Probe and took samples of suspected bloodstains to the laboratory for analysis. Her test results indicated that there was a small amount of human blood on the gear shift knob and on the lowerleft portion of the steering wheel. (15 RT 5451-5457; 16 RT 5516.) She found no blood on the driver’s side seat, the seat belt, the seat adjustment handle, the gas peddle, the exterior door handle, the rear view mirror, the floor area, the hand break or any of the knobs associated with the dashboard, the door and the glove box; she examined the passenger’s side as well. (15 RT 5458-5459.) Stains on the interior driver’s side door handle, the floor on the driver’s side and the passenger’s side floor were tested for the presence of blood, and none was found. (15 RT 5460-5461.) Hansen wasofthe opinion that if a person had gotten in the car wearing the shirt in evidence and the blood on that shirt had been wet, the blood would havetransferred to the front seat. (16 RT 5509.) f. Appellant’s Fingerprints Were Not Found at the Crime Scene or on the Murder Weapon Officers processed the bar area and the women’s restroom forlatent fingerprints. (15 RT 5328-5329.) They recovered 16 usable latent prints that were later compared to the knownfingerprints of appellant, Webster, Manuel and Tudor. (15 RT 5379, 5397-5398, 5413.3} Only one match was found: a latent from the inside of the cash register matched the known prints of Manuel. (15 RT 5397-5398.) Several latent fingerprints were found on andin the boxthat 24 orks SpatetseantSoatineetslaysoRRtie contained the gun. (15 RT 5338-5348.) None matched appellant’s known prints; four matched Webster’s. (15 RT 5376-5380.) Appellant’s prints were not on the gun. (15 RT 5411.) g. The Gun Seized from Webster’s House WasIdentified as the Murder Weapon and as Appellant’s Gun, but it Did Not Match the Descriptions of the Gun in Appellant’s Possession Before the Murders- Firearms expert Gerald Arase examined andtest-fired Exhibit 55, the gun seized from Mary Webster’s house. Based on a comparisonofrifling characteristics, he opined that the gun was the murder weapon. (16 RT 5554-5559.) Arase found that the magazine held a maximum ofseven rounds andthat the gun could therefore hold a maximum ofeight rounds. (16 RT 5538-5610.) Four areas of the gun tested positive for human blood, but the amounts were too small to permit typing. (16 RT 5477-5479.) Identification technician Claire Jole cut up Exhibit 76, the cardboard box in which the gun was found, and obtainedeight latent prints from it. (15 RT 5358.) Jole saw no blood smearsor prints on or inside the box. (15 | RT 5358.) Fingerprint examiner Tim Cantrell found that noneofthe latent prints from the box matched appellant’s knownfingerprints, but several matched Webster’s. (15 RT 5377-5380.) Defense criminalist Peter Barnett testified that if a person’s whose hands were bloody enoughto transfer blood to the steering wheel and gear shift knob of a car also placed the gun in the cardboard box, there would be blood on the box as well. (20 RT 6669.) | Several witnesses identified Exhibit 55, the gun seized from Webster’s house, as appellant’s gun. (13 RT 4566-4567; 17 RT 5854; 18 25 RT 6080.) Jerri Bakertestified that appellant kept his gun in the brown Columbia House box in which it was found, and that he generally had it with him when he was homeorin the car, but not when he was at work. (18 RT 6081-6082, 6250.) Billy Joe Gentry, who had been convicted of welfare fraud and giving false information to law enforcement and who was an admitted alcoholic who drank both on and off the job (17 RT 5840, 5843-5844), testified that appellant had the gun approximately nine months before the murders, and at that time, it was in a shoe box. (17 RT 5830.) Gentry had been drinking at the time. (17 RT 5844.) Eight to ten weeks before the murders, Greg Billingsley, also a convicted felon (13 RT 4579), borrowed a gun from appellant to take on a campingtrip. (12 RT 4512; 13 RT 4566.) Both Greg and Stacey Billingsley testified that the gun they borrowed from appellant appeared to be the same as Exhibit 55, and that at the time they borrowedit, it was in the same box as that in which Exhibit 55 was found. (12 RT 4512-4514, 4541, 4543; 13 RT 4567, 4588, 4687.) Asnoted above, on the weekendprior to the killings, appellant stayed with Sue Burlingame andthe Billingsleys for several nights. Sometime that weekend, Burlingame was cleaning under the couch and found a cardboard box with “Columbia House”printed on the outside in blue lettering; in the box was a gun and a box ofcartridges. (12 RT 4510, 4536; 13 RT 4664, 4686, 4723, 4745.)'' Greg Billingsley testified that he took the gun to work and gave it back to appellant there. (13 RT 4573- — '! Burlingametestified first that she gave the box to her daughter, Stacey (13 RT 4664, 4687, 4725) and later that she gave it to her son-in- law, Greg (13 RT 4726). 26 4574.)'? He asked appellant why he had broughtthe gun to their house. Appellant said it was because he did notlike leaving the gun around. (13 RT 4575.) Burlingame and Gregtestified that the gun Burlingame found underthe couch looked like Exhibit 55, the gun seized from Webster’s house. (13 RT 4588, 4702.) However, Burlingame told law enforcement that the gun she found under the couch wassilver (17 RT 5877), and told appellant’s investigator that it was shiny chrome (20 RT 6913; 21 RT 7022). Greg also told police that the gun found under the couch wassilver in color. (21 RT 7061.) Except for some spots where the color was worn down to the metal, Exhibit 55 was black in color. (13 RT 4589; RT 5568, 5854.) Burlingame told law enforcement that the gun she found underthe couch hada triangle on the grip (13 RT 4704; 17 RT 5877); the one in evidence did not (13 RT 4703). Burlingamealso contradicted herself as to whetherthe box that she found wasthe same as the one seized from Webster’s house. (See 19 RT 6665; 20 RT 6914; 21 RT 7023.) 6. Months Later, Jerri Baker Revealed Statements Appellant Had Made Shortly After the Murders Jerri Bakertestified that from March, 1993, until appellant’s arrest, she and appellant were living together as boyfriend andgirlfriend. (18 RT 6074.) She let him drive her car, the grey Ford Probe which appearedin the photographs designated as Exhibits 85-A through F. (15 RT 5449-5450; 18 RT 6078-6079.) Appellant worked under Baker’s supervision at McKenry’s Cleaners. (18 RT 6075.) She was completely in love with him ? Burlingame contradicted this testimony, stating that she saw Greg get the box downfrom therafters in the garage and handit to appellant at the house. (13 RT 4665, 4688.) 27 (18 RT 6093, 6233) and was opposedto him being in contact with Webster (18 RT 6141). Baker identified Exhibit 55, the gun that had been found at Webster’s house, as appellant’s gun, and stated that he carried it around in the Columbia Housebox in which Exhibit 55 was found. (18 RT 6080- 6082.) Bakertestified that on the afternoon of the murders, she went shopping with hersister. (18 RT 6086.) When Bakerreturned, appellant was at the house and wasin a hurry to go play pool. (18 RT 6088.) Heleft at 3:00 or 4:00 p.m. in Baker’s car. (18 RT 6089.) He had his gun with him and was wearing jeans, boots, and the shirt which was in evidence — the shirt which Websterhadgiven to the police. (18 RT 6088, 6107, 6252.) Baker had boughtthat shirt for appellant. (18 RT 6088.) Appellant came back to Baker’s house at 11:30 p.m. with alcohol on his breath. (18 RT 6090.) He told Baker that he had killed two black men over a poker gamein Del Paso Heights (18 RT 6092) and had “deep-sixed” the gun and any other items that he may have had (18 RT 6084, 6107). After appellant went to sleep, Baker went through his pants and found $34. (18 RT 6211-6212.) The next morning, appellant told Baker that he was going to help Webster with her Social Security problems, and that Baker shouldtell people at work that appellant’s mother had fallen ill and he had gone back to Indiana. (18 RT 6094.) He told her he had taken care of his pants. (18 RT 6107.) Webster also called Baker on the phonethat day and said she had turned appellant in; Webster told Baker to read the newspaperand said something like, “see what your lover boy is doing now.” (18 RT 6097.) After the murders, Baker talked to law enforcementseveral times. She visited appellant in the jail twice a week for three or four months and 28 read the police reports concerning the crimes charged against him. (18 RT 6142-6145, 6209, 6229, 6232.) Eventually, she met someoneelse and stopped visiting appellant. (18 RT 6299.) Until March of 1994, nine monthsafter the crime, she told law enforcementthat on the day of the murders, appellant had been homeuntil 3:30 or 4:00, when he borrowedher car andleft in a hurry to go shopping. (18 RT 6196; 20 RT 6929.) She said that he came homeat around 10:30 or 11:00 p.m. (18 RT 6197; 20 RT 6929.) She said she did not remember what color shirt or what shoes or boots he had on that day. (18 RT 6199; 20 RT 6930.) She denied having — ever seen him with a gun. (18 RT 6200; 20 RT 6931.) She said that he told her his mother was dying and that he was going back to Indianato see her. (18 RT 6200;:20 RT 6932.) She did nottell them that appellant had said anything about shooting anyone or about a poker game in Del Paso Heights. (18 RT 6099.) She said she had not noticed any stains in her car. (18 RT 6203; 20 RT 6933.) She gave the detectives two wigs and said Webster had given them to appellant after he had moved in- with her. (18 RT 6109, 6205; 20 RT 6937.) She said appellant had told her that Websterhad bought the wigs for him as a disguise for committing robberies and that Webster had asked him to start doing robberies because she needed money. (18 RT 6110, 6205, 6318.) She said that at the time of the murders, appellant had money,as he had just been paid $500 two days before. (18 RT 6268; 20 RT 6939, 6968.) In March of 1994,.after Baker broke off her relationship with appellant, her version of events changed. She contacted law enforcement and told them she could corroborate everything that Webster had said (18 RT 6209; 20 RT 6963.) She told them that on the night of the murders, appellant came homelater than she had previous indicated and made the 29 statements to which shelater testified — i.e., that he had shot two men over a poker game in Del Paso Heights. (18 RT 6209-6210; 20 RT 6941, 6944, 6963.) She told them that after appellant went to sleep that night, she went through his pants pockets and found $40 in bills. (18 RT 6210-6213; 21 RT 6944, 6963.) She also stated that when appellant lived with her, he had a 45 caliber gun that he carried it in a brown cardboard box. (18 RT 6215; 20 RT 6947, 6965.) In December of 1994, a year and a half after the murders, Bakerfirst told law enforcement that on the morningafter the killings at The Office, appellant asked her to wipe down hercar, particularly the exterior, the steering wheel, the door panels, the brake, and the console area. (18 RT 6099-6100, 6230-6231.)'* She also indicated that before she gotin the car that day, she cleaned off a “glob” of flesh or brain matter that was on the driver’s side door. (18 RT 6096, 6268.) Attrial, she said it was at “eye level” on the door panel. (18 RT 6262.) Defense criminalist Peter Barnett testified that he would not expect tissue to transfer to the shooter from a shooting like that which occurredin this case. (29 RT 6535-6536.) Bakeralsotestified that after she drove to work that day, she wiped out the inside of her car with a solution of ammonia, water and a “prespotting agent.” (18 RT 6095, 6265.) She did not wipeoffthe seat or the seat cushion. (18 RT 6266.) After she wiped the car down,the rag that she was using turned partially green. (18 RT 6096.) She testified that blood turns green in ammonia. (18 RT 6096.) Defense criminalist Peter Barnett testified that blood does not turn green in ammonia. (19 RT 6511- 13 At trial, Bakertestified that this conversation occurred on the night of the murders and that appellant told her to clean around the driver’s seat, door handles, foot pedals and steering wheel. (18 RT 6095, 6261.) 30 6512.) He experimented by using ammonia to clean someglass plates onto which he had dried some humanblood, andthe result was a reddish-brown, not a green, solution. (19 RT 6511-6512.) On rebuttal, Bakertestified that, at the prosecutor’s request, she conducted an experiment in which she put someofher own blood onto a porcelain cigarette lighter and allowedit to dry, and then wiped it up with a rag onto which she had squirted a solution similar to the one that she used on June 21, 1993. (21 RT 7163-7169.) Afterwards, the rag had turned green. (21 RT 7169.) While on the witness stand, she demonstrated this experiment for the jury andtestified that the rag turned an olive drab green. (21 RT 7171-7172.) On cross-examination, she admitted that she had not washed the cigarette lighter before putting blood on it. (21 RT 7169.) She also admitted that she had boughther car from a used car lot and that her brother-in-law had worked on the car. (21 RT 7173-7174.) The evidence showedthat several other people, including Laureen Gilmore (Baker’s sister), William Riley Gilmore (Baker’s brother-in-law), and Brian Gilmore (Baker’s nephew), had access to Baker’s car and may have drivenit in April, May and June, 1993. (21 RT 7146, 7150.) Baker’s dogs also rode in the car. (18 RT 6225.) In February of 1996, over two and half years after the murders, Bakertold law enforcementthat on the Friday before the murders, appellant had tried to cash his pay check and close out his bank account, but the bank told him that he had to wait 48 hours to get his money. (18 RT-6247.) This testimony was contradicted by Todd Bonner, an employee of appellant’s credit union, whotestified that appellant cashed his paycheck on Friday, June 18. (20 RT 6785, 6788-6789.) Attrial, Baker testified that she had previously lied to police because 31 vagrant legReceanntemasaaipirramtN27, she did not want to be involved and because she loved appellant and did not want to turn him in. (18 RT 6297-6298.) She also admitted that before she changed her version of events, she had read the police reports concerning the killings and had learned that, when appellant was living with her, he had been seeing other women, including Webster and Burlingame. (18 RT 6144-6209.) 7. Appellant Had Moneyat the Timeof the Murders At the time of the murders, appellant had a full-time job as a presser at McKenry’s dry cleaners, making about $1300 per month. (12 RT 4527; 18 RT 6148.) He got paid on the 5" and the 20" of every month. (18 RT 6148.) Although the evidence indicated that shortly before the murders, appellant said he was annoyed becausethe credit union had taken some of his money (12 RT 4524-4525, 4666), the evidence also showed that the credit union cashed his paycheck of $428.53 on June 18, 1993, two days before the crime. (20 RT 6785, 6788-6789.) Burlingame indicated that on the night of the murders, appellant had money and paid for almost everything. (13 RT 4729.) Furthermore, because appellant sometimes worked on Saturdays, he had a key to the cleaners and the combination to the safe, which on a Saturday normally contained about $100 and sometimes as much as $250. (18 RT 6228-6229; 20 RT 6757-6760, 6765, 6768; 21 RT 7260.) 8. Before the Murders, Appellant Had Made Various Statements About Hypothetical Robberies and His Prior Crimes Over appellant’s objection, the trial court admitted evidence of a number of statements that appellant was purported to have madeat various 32 times before the murders. Jerri Bakertestified that in March or April of 1993, appellant was in her backyard,sitting on the fence, looking depressed. (18 RT 6101-6102, 6220-6221.) Baker asked what was wrong. Atfirst, appellant said nothing, but eventually told her that he wanted to commit robberies, but could not do so because he would goto jail forever it he got caught. (18 RT 6103.) He said if he did commit a robbery, he would have to kill any witness so that he would notgoto jail. (18 RT 6104.) According to Baker, it was as if he hadan irresistible impulse to commit robberies. (18 RT 6121, 6260, 6292.) Bakeralso testified that appellant had offered to kill her ex-husband, whohadbeen puncturinghertires, breaking windows and making threatening phonecalls; she reportedly told appellant just to break his kneecaps. (18 RT 6216-6218; 20 RT 6948.) Appellant did not do anything to him. (20 RT 6949.) In early 1993, appellant was an invited speaker at two gatherings of robbery investigators. According to Deputy Sheriff Theodore Voudouris, appellant agreed “to be interviewed relative to what he had donein the past” (16 RT 5687), to answer questions regarding the robberies for which | he had goneto prison in 1979 (16 RT 5698). At one of the gatherings, appellantwas asked what he would do if he met resistance during a robbery. (17 RT 5812, 5819.) Appellant answered that he “would take somebody out.” (17 RT 5812.) Voudouristestified that appellant was talking about what he would have donein the past. (17 RT 5819.) Accordingto Brian, at the second gathering, appellant was asked “if in the course of a robbery, someoneresisted you, what would you have done?” (17 RT 5868.) Appellant answered“that he would blow the person away.” (17 RT 5864.) Curley also testified that appellant was talking about what he would have 33 donein the past. (16 RT 5720.) Greg Billingsley testified that one to two monthsprior tothe killings at The Office, appellant asked him twice if he wanted to participate in stealing the bank deposit from the Crestview bowling alley, where the two men often bowled together. (17 RT 6020-6021.) In one conversation, appellant asked Billingsley if he wanted to be the driver while he stole the bank deposit from the lady who deposited the money from the bowling alley. (17 RT 6023.) Appellant used the word “job,” and may not have use the word “rob,” but it was clear to Billingsley that he was asking him if he wantedto assist in a robbery. (17 RT 6023-6024, 6037, 6054-6055.) He did not state a particular date, but indicated it would be a Sunday morning, as that was whenthe bank deposits were made. (17 RT 6055-6057; 18 RT 6067.) About four or five weekslater, appellant and Billingsley were driving around, looking for Jerri Baker’s estranged husband whom they planned to confront. (17 RT 6041, 6049.) Appellant asked Billingsley if he wassure that he did not want to do a job together, and said that all Billingsley had to do was to drive. (17 RT 6025, 6050.) Both conversations occurred after the two men had been drinking. (17 RT 6036- 6037; 18 RT 6067.) On Halloween, 1992, Billy Joe Gentry and his family wentto visit appellant and Mary Webster. (17 RT 5833.) Within five or ten minutes of their arrival, Gentry and appellant walked to the store together to buy alcohol. (17 RT 5847.) On the way, appellant asked Gentry if he wanted to earn some extra moneyby beingthe driver in a holdup. (17 RT 5834, 5836, 5847.) Gentry declined, and appellant told him notto tell anyone aboutit. (17 RT 5836.) Gentry admitted that both he and appellant were drinking at the time of this conversation. (17 RT 5834.) Gentry had consumed two40- ounce bottles of beer before he had even gotten to appellant and Webster’s house. (17 RT 5846.) Gentry was alwaysdrinkingat that time. (17 RT 5834.) By the time Gentry and his family went homethat night, he was so drunk that he rode in the back of the pickup. (17 RT 5848.) According to Mary Webster, appellant made numerousstatements to her about past crimes. He told her that her was a bank robber and an ex- convict. (14 RT 4971, 4992.) He told herstories nightly about crimes he had committed in the past. (14 RT 4973, 4985.) He mentioned that he had “bumped a couple people off’ (14 RT 5021), that he had “knocked people off, old people, slapped right ~” (14 RT 5032) and that he had gotten rid of a former crime partner who had “snitched him off’ (14 RT 5044). Hetold her that he could thwart identification during bank robberies by wearing fake tattoos, wigs, facial hair and extra clothes. (14 RT 4972-4976.) He bought some of those items and demonstrated to her how to use them. (14 RT 4973-4974, 4976-4978, 5647-5648.) He said he had “layered his clothes”in the past to disguise himself while committing a crime. (16 RT 5648.) He subscribed to a couple of magazines about committing crimes, buying or concealing guns, and doing robberies. (14 RT 4977, 4980; 16 RT 5652.) Around Halloween, 1992, appellant reportedly bought a wig and a moustache andsaid they were for committing robberies. (14 RT 4976- 4979.) He had a couple of other wigs, including a woman’s wig with shoulder-length reddish-blond hair that had been Webster’s (15 RT 5649; 17 RT 5906-5907), and another wig that he bought (17 RT 5941). According to Webster, appellant boughta first-aid product called “‘Nu-skin” andtold her that he could put it on his fingertips so there would be no fingerprints. (14 RT 4972; 16 RT 5645.) He claimed to have usedit before successfully. (14 RT 4972.) However, defense expert Peter Barnett 35 experimented with Nu-skin and determined that even with five layers of that product on his fingers, which resulted in a thick gooey mess,his fingerprints still had sufficient ridge detail to be identifiable. (19 RT 6420- 6424.) Further, he found that Nu-skin was difficult to remove, and that it remained on the skin for several hours. (19 RT 6430-6431.) Right after appellant moved in with Webster, he told her that he wanted to buy a gun and wanted to rob some stores and/or banks. (14 RT 4992, 4997.) 9. Appellant Had Been Violent Before In addition to evidence that appellant had admitted committing various prior acts of violence, the jury heard percipient witness testimony that appellant had become physically violent with Greg Nivens, Mary Webster’s adult learning-disabled son (17 RT 5982-5983), and Randy Hobson, Webster’s roommate at the time (14 RT 4982). The incident with Nivens occurred one week after appellant moved in with Webster. (14 RT 4981, 4984.) Nivens was partying with his friends and refused to turn down his music. (17 RT 5974-5975; 17 RT 5985-5987.) Nivens had a baseball bat in his handsat the time, and Webster thoughthe had threatened her with it. (17 RT 5994; 21 RT 7055.) Appellant hit Nivens on the mouth. (14 RT 4981; 17 RT 5974-5975.) A week after the incident with Nivens, appellant had an altercation with Randy Hobson. (14 RT 4983-4984.) Hobson asked Webster for some moneythat he believed she owed him. (15 RT 5277-5278.) Appellant hit Hobsonin the leg with the side of a fireplace poker, and the two men fought. (15 RT 5278-5279; 17 RT 5958-5959.) 36 10. Appellant Made Incriminating Statements WhenInterrogated Aspart of the prosecution’s case in rebuttal, Detective Reedtestified that when appellant was interrogated on the day ofhis arrest, he made the following statements: he knew of the murders at The Office from having watched the newsontelevision that morning (21 RT 7252); on the day of the murders, he was at The Office with a girlfriend named Sue, he took her homeat 6:00 or 7:00 p.m. and went back by himself at about 7:30 or 8:00 p.m. (21 RT 7253); he left The Office at about 8:55 p.m., just before the barmaid closed the bar (21 RT 7254); he had driven to The Office in Jerri — Baker’s Ford Probe, which he parkedin the parkinglot, in front of a trailer (21 RT 7255); the clothes that the police obtained from Webster werehis, and he had gotten blood on them from shaving (21 RT 7256); the reason that he had no marks from shaving wasthat he healed fast (21 RT 7256). B. Penalty Phase 1. Evidence in Aggravation The prosecution’s case in aggravation consisted of evidence of the impact that the deaths of Manuel and Tudorhad ontheir families, appellant’s felony convictions, the facts and circumstances underlying some of those felony convictions and the impact that those crimes had on their victims. a. Victim Impact Evidence Lulu Manuel and Elizabeth Tudortestified to the impact that the deaths ofManuel and Tudor had had on their families. Lulu Manuel was married to Ronald Manuel, the oldest of Val Manuel’s four sons. (23 RT 7728.) Although he was 50 years old at the time, Ronald becamechildlike 37 at the news of his mother’s death. (23 RT 7728.) He went inside himself. (23 RT 7732.) He suffered a deep loss that he did notlike to talk about. (23 RT 7732.) Lulu and Ronald had to take care ofall of the arrangements after Val Manuel died. (23 RT 7731.) They met with detectives and obtained her property. (23 RT 7731.) They went to The Office and picked up her car. (23 RT 7731.) Lulu removed the crime scene tape which had been wrapped around the building and the car. (23 RT 7731.) She looked in the building and saw the plate of food that Val had prepared for Gary Tudor. (23 RT 7731.) In the trunk of Val’s car, Ronald found the dishes that she had used to make the enchiladas. (23 RT 7732.) Ronald’s younger brother, Steven, lived with Val Manuelat the time of her death. Steven was drug dependent and unhealthy. (23 RT 7729.) When Val Manuel died, Steven moved in with Lulu and Ronald and became dependent on them. (23 RT 7732.) After Val’s death, Lulu had to attempt to fill Val’s boots, which were very deep, and becomea motherfigure to Steven, which was a big burden for her. (23 RT 7732.) Lulu testified that two of her husband’s brothers were outspoken about what they would like to see done with appellant, but she did not specify what that was. (23 RT 7733.) Elizabeth Tudor, Gary Tudor’s mother, testified that at the time of his death, Gary was living at home with his parents. (24 RT 7894-7895.) Gary andhis parents were very close friends. (24 RT 7895.) Gary had been divorced for about a year. (24 RT 7895.) He had three children. (24 RT 7896.) His death was devastating for both his children andhisparents. (24 RT 7896-7897.) At the time oftrial, the children wereall still in counseling. (24 RT 7896.) As a result of Gary’s death, his oldest child, David, 15 years old at the timeoftrial, was getting an attitude. (24 RT 38 7897.) b. Prior Felony Convictions and the Underlying Circumstances The prosecution presented evidence that appellant had been convicted of the following felony convictions: In 1958, at the age of 17, appellant was sent to the Indiana State Reformatory for second-degree burglary. (23 RT 7723.) In 1963, he was convicted of burglary inIllinois; in 1965, he was convicted of escapein Illinois; and in 1967, he was convicted of second degree burglary in Indiana. (23 RT 7723; 23 Aug CT 6743.) He was incarcerated for each ofthose crimes. (23 RT 7723.) In 1975, appellant was convicted offirst degree robbery in Sacramento County and was again sentenced to prison. (23 RT 7719-7720) He wasreleased in 1978 and was out of custody for approximately six months before being arrested for multiple crimes which resulted in his 1979 conviction of 27 counts, including robbery, assault with a deadly weapon,oral copulation, rape and attempted rape. (23 RT 7720-7721.) For those crimes, he. was sentenced to 33 2/3 years in prison. (23 RT 7721.) He wasparoled to Sacramento in 1991 and discharged from parole in April of 1993. (23 RT 7726.) Dolores Ogburn (a.k.a. Dolores Klein) was a victim of the robbery of which appellant was convicted in 1975. (23 RT 7802; 23 Aug CT 6741.) On August 15, 1974, Ogburn was working as a waitress and cashieratLittle Joe’s steakhouse in Sacramento when appellant-robbed her. (23 RT 7802.) At 4:20 a.m. on that date, appellant threatened Ogburn with a steak knife from the restaurant. (23 RT 7804-7805.) Shetried to get away, but he cut her left arm and wrist and hit her in the head with his fist, knocking her to the floor. (23 RT 7805.) He took the money out of the cash drawer. (23 39 RT 7805-7806.) The cook, Mildred Patterson, came out from the back of the restaurant and told appellant to leave Ogburn alone; appellant threw Patterson against a table, breaking her ribs. (23 RT 7806-7807.) Sally Ann Strong (a.k.a. Rose Gomez), Bettie Hershey, Virginia Parker, Tennye Pettinato and Patricia Jones were victims of the crimes of which appellant was convicted in 1979. (23 RT 7734; 23 Aug CT 6741- 6742.) On August 7, 1978, appellant robbed Strong and DoloresJean Cook inside Stockmen’s, a western store in Sacramento where both Strong and Cook worked. Appellant hit Strong above the eye with a gun, kicked her, forced her to orally copulate him and attempted to rape her. (23 RT 7739- 7740, 7745.) He held Cook at gunpoint andmade her give him the money in the cash register. (23 RT 7755.) He threatened to come back andkill both womenifthey identified him. (23 RT 7746.) At the time of the crime, appellant’s breath smelled strongly of alcohol. (23 RT 7763.) When law enforcementarrived, Strong was vomiting and shaking. (23 RT 7762.) As a result of the incident, she became unable to be by herself and her marriage fell apart. (23 RT 7749.) For about six monthsafter the incident, Cook could not take a shower when she was home alone. (23 RT 7760.) Bettie Hershey was working at Groth’s shoe store in Sacramento on August 15, 1978, when appellant came into the store and robbed herat gunpoint. (23 RT 7768, 7770.) He raped her and forced herto orally copulate him. (23 RT 7770-7771.) He taped her hands, ankles and mouth and stemped on her face with his boot. (23 RT 7773.) He took her wallet and keys and threatened to kill her children if she called the police. (23 RT 7773.) As aresult of this incident, Hershey lost her job, experienced anxiety attacks and claustrophobia, required therapy and for aboutfive years, was unable to work with the public. (23 RT 7775.) 40 On August 22, 1978, appellant robbed Virginia Parkerat her Sacramento flower shop, Morebeck’s. (23 RT 7790.) Appellant taped her hands, ankles and mouth. (23 RT 7794.) He hit her in the face and threw her across the room. (23 RT 7794-7795.) He took her rings and her watch. (23 RT 7796.) He touched her under her underpants and threatened to rape her or makeherorally copulate him, but did not do so. (23 RT 7796-7797.) He took the money in the cash register. (23 RT 7797.) He threatenedto kill her if she screamed. (23 RT 7797.) After the incident, Parker never went - to the front of her store without a knife in her hands; she learned to shoot a gun andslept with it under her pillow. (23 RT 7799-7800.) On August 30, 1978, appellant robbed Tennye Pettinato at gunpoint at her dress shop, Andrea’s Casuals, in Sacramento. (24 RT 7884-7888.) He tied her hands and feet with a rope and used a scarf to gag her. (24 RT 7888-7889.) He took her two diamondrings and the cash in the cash. drawer. (24 RT 7889-7890.) As a result of the incident, Pettinato neversat in her store with her back to the door again, no longer enjoyed being there and distrusted any man who came in. (24 RT 7892.) She also developed shingles. (24 RT 7893.) On September6, 1978, Patricia Jones was working at a dress shop -called the Willow Tree in Sacramento when appellant robbed herat gunpoint. (23 RT 7808.) Appellant put a gun in the back ofher head, tied her hands and feet, made her orally copulate him and hit both sides of her face with his hands, causing herto hit her head on the door. (23 RT 7812- 7814.) He took her wallet and jewelry and the moneyin the cash drawer. (23 RT 7816.) As a result of the incident, Jones had nightmares and lost trust in strangers. (23 RT 7818.) 4] 2. Evidencein Mitigation In mitigation, appellant presented evidence that he had an extensive history of being institutionalized and had suffered emotional, physical and sexual abuse at the hands of various family members, caretakers and fellow inmates. He presented evidenceofthe typical living conditions ofthose serving life in prison without possibility of parole and evidence that he would adjust well and be an asset to the prison if he received that sentence. Testifying on his behalf were: Jerry Stokes and Dode Hall, two of appellant’s friends from Indiana; Gretchen White, clinical psychologist; Dennis Barnes and William Mayfield, prisoners with appellant at Folsom State Prison; Eldred Lewis, former prison guard at Folsom State Prison; AmosGriffith, former maintenance man at Folsom State Prison; Challough Randall, formerly a civilian employee at Folsom State Prison; and James Park, prison expert. a. Appellant’s Family of Origin and Childhood Appellant was born on July 19, 1940, in Evansville; Indiana, and grew up in Vincennes, Indiana. (24 RT 8092; 23 Aug CT 6761.) Appellant wasthe sixth of nine children. (24 RT 8093.) His mother had a third-grade education and hadherfirst child at 17. (24 RT 8092-8093.) His father had | a fifth grade education and was a farmer who becamea truck driver. (24 RT 8092.) Appellant and five ofhis siblings were institutionalized as children. (24 RT 8092.) Although both parents werestill living, appellant was sent to a local orphanage at age 12. (24 RT 8119.) Thomas (known as “Wayne”) was deaf and wasinstitutionalized at age five. (24 RT 8094.) Richard (known as “Dick”), Virginia (known as “Jennie” or “Ruth’”) and William 42 (“Bill”) had severe seizure disorders; Bill and Dick were sent to an epileptic colony, Dick at age three and Bill at age seven. (24 RT 8095-8096.) Dick, Bill and David had other severe mental health problems including organic brain disorder and psychosis. (24 RT 8095-8096.) David wassent to a state hospital twice before age 11 and then to the same orphanage as appellant. Like appellant, Philip (known as “Joe’”’) was sent to the orphanage at age 12 or 13, then to boys school, then to the reformatory at Pendleton and ultimately to prison. (24 RT 8096.) Appellant’s family was poor. (24 RT 7935.) Appellant’smother worked two jobs: during the week, she cared for elderly institutionalized people; on the weekends, she cleaned houses. (24 RT 8098, 8103.) Appellant’s father did not support the family financially. (24 RT 8102.) Appellant’s parents did not get along. His mother was a Jehovah’s witness and very religious; his father was an atheist. (23 RT 7833; 24 RT 8099.) When appellant’s father was home, he was often drunk. (24 RT 8099.) Appellant’s father was a womanizer, which resulted in tremendous physical] fights with appellant’s mother. (24 RT 8099.) When they fought, appellant’s mother bloodied appellant’s father’s head with a skillet or otherwise drew blood. (24 RT 8100.) The youngest child, David, was reportedly the product of marital rape. (24 RT 8093, 8096.) Appellant’s ' parents divorced when appellant was about 16 years old. (23 Aug CT 6761.) Appellant’s father was inattentive to appellant andall of his siblings except for George Robert (known as “Bob”), who wasthe oldest and his father’s favorite. (24 RT 8102, 8109.) When appellant wasfive, his father started working as a truck driver and was away from homevirtually all of the time. (23 RT 7834; 24 RT 8099.) When he was home,he administered 43 severe beatings to appellant and his siblings. (25 RT 8180.) He wasalso reportedly sexually abusive. Jerry Stokes, who knew appellant both when they were children and adults, once looked inside appellant’s father’s truck which was parked near appellant’s house and saw appellant touching his father’s penis. (23 RT 7835.) Appellant idolized his father but tried to avoid him: often when his father was home,appellant ran away. (24 RT 8100-8102.) According to Jerry Stokes, appellant wantedto be truck driverlike his father. At age | 13, appellant knew everything about trucks. (23 RT 7834.) However, as Gretchen White explained, appellant’s father was a disastrous role model. (24 RT 8109.) At times, appellant and his father werein jail at the same time. On one occasion, police came in contact with appellant’s father while looking for appellant. (24 RT 8110.) The father was intoxicated, and when the police told him to go into his house, he replied, “fuck you. I don’t have to go anywhere for you bastards.” (24 RT 8111.) They arrested him, and he had to be physically forced into the police car. (24 RT 8111.) Working two jobs, appellant’s mother was absent from the home muchofthe time. (24 RT 8103.) Even when at home, she imposed no rules. (24 RT 8106.) The children came and wentas they liked and frequently fought violently amongst themselves. (24 RT 8104, 8106.) Virginia, the oldest girl, was often left in charge of the younger children but wasutterly unable to control them. (24 RT 8104.) Bob,the oldest, picked on and pummeled appellant. (24 RT 8104.) Bill was very violent. (25 RT 8181.) Appellant and Joe once got in a serious fight with Bill, and either Joe or appellant hit Bill in the head with a tire iron. (25 RT 8181.) Appellant’s mother used the legal system to control her children’s behavior. When they mouthed off at her, she called the police. (24 RT 44 8106.) When things got more out of control, she had them institutionalized. When appellant was about five, Wayne wassent to a homefor the deaf. (24 RT 8105.) Two years later, Bill and Dick were sent to the epilepsy colony. (24 RT 8105.) As White observed, this dynamic eroded any sense of attachment, belonging, stability or cohesion in the family. (24 RT 8105.) The household was chaotic with nobody parenting the children and nobody attaching to them emotionally. (24 RT 8105, 8107.) b. Appellant’s Institutionalization At age 12, appellant was brought before a juvenile court judge, after he had stayed out all night, climbed.a tree and refused to come down. (24 RT 8119, 8162.) Appellant admitted that he had broken into a home and stolen some costume jewelry, watches and soda pop, and was committed to the Knox County Children’s Home,the local orphanage. (24 RT 8162.) The Knox County Children’s Home wasrun by a couple named Summers. (23 RT 7829-7830; 24 RT 8117.) Jerry Stokes, wholived in the same dormitory as appellant, testified that children were beaten, whipped, throwninto scalding hot water and scrubbed with a leather strap for transgressions as minoras not eating everything on their plate. (24 RT 8117.) Other forms-of punishment included hair pulling, being madeto eat without their clothes on, being_pushedinto sheets soaked with another child’s urine and being madeto drink Epsonsalts. (24 RT 8118.) Appellant’s brother Joe saw Mrs. Summersslap appellant in the face and saw bruises on appellant’s face. (24 RT 8117.) White found that the orphanage was a psychologically damaging place that failed to provide appellant with the attachment, trust, warmth and mutualrespect that was missing in his family. (24 RT 8118.) The Summers’ son, Billy Jack, was about 30 or 31 years old at the 45 time that appellant and Stokes were at the orphanage. (23 RT 7830.) According to Stokes, Billy Jack used to comeinto the dorm after the kids were in bed and sodomize appellant or make him orally copulate him. (23 RT 7830.) One time, Billy Jack choked appellant while he was sodomizing him. (23 RT 7831.)'* Billy Jack used to take appellant with him during the day, saying that they were going to pick corn. (23 RT 7870.) Appellant did not want to go. (23 RT 7870.) Appellant told White that he was not molested at the orphanage. Whitetestified that it was possible that appellant was molested but did not want to say so because it was a deeply humiliating experience. (24 RT 8167-8168, 8170; 25 RT 8206.) Stokestestified that he and appellant ran away from the orphanage several times. (23 RT 7828.) Records confirm that appellant was charged with running away from the orphanage six times; once, he was also accused of putting his finger in the vagina of a five-year old girl at the orphanage. (25 RT 8172-8173.) Appellant left the orphanage in 1955 at age 16. (24 RT 8173.) From there, he wassentfirst to a foster home and then to the Indiana School for Boys. (24 RT 8127, 8173.) He was released in 1956, but three months later, was sent back for auto theft and auto burglary. (24 RT 8173.) He was released from the School for Boys in 1957, but later that year was found to '4 Whenappellant’s investigator first talked to Stokes, he did not mention the sexual abuse by Billy Jack or appellant’s father. (23 RT 7872- 24 RT 7874.) The reason wasthat Stokesstill had bad feelings about appellant for “turning state’s evidence” against him,as set forth below. (23 RT 7841, 7847; 23 7872-24 RT 7874.) It was only after a lot of thought and talking with his wife that Stokes decided to reveal the truth. (23 RT 7873; 24 RT 7876.) 46 have committed petty theft and wassent to the Indiana State Farm for 60 days. (25 RT 8173-8174.) In 1958, when appellant was 17, he wassent to the Indiana State Reformatory at Pendleton for second degree burglary. (24 RT 8122; 25 RT 8174-8175.) Pendleton was a very dangerousplace with all the difficulties of a prison. (24 RT 8122-8123.) White found that at Pendleton, appellant’s identity as an outlaw and a felon became consolidated. (24 RT 8123, 8144.) Jerry Stokes was sent to Pendleton in 1961 for stealing gas. (23 RT 7839.) Stokes testified that at Pendleton, appellant was again a victim of rape. (23 RT 7841.) Dode Hall, who was committed to Pendleton in 1960, confirmed that any white inmate at Pendleton either fought or got anally raped. (24 RT 7928, 7930.) Appellant was released from Pendleton in 1963. (25 RT 8175.) Three months later, he was sent to the Indiana State Farm for three months. (25 RT 8175.) After that, he was out of custody for one month before being sent to the Illinois State Penitentiary at Menard for burglary of a gas station. (25 RT 8175.) In 1965, he escaped, but was returned to prison and remained there until 1967. (23 Aug CT 6743.). In-Octoberofthat year, he wassentenced to the Illinois State Reformatory for second degree burglary and wasnot released until November, 1971. (23 RT 7723; 23-Aug CT 6788-6789.) In 1974, he came to California. (24 RT 7933, 7939.) c. Appellant’s Life in Indiana When Not inPrison Until 1974, appellant returned to his home town of Vincennes wheneverhe wasnotin prison,as did Jerry Stokes. (23 RT 7844-7845.) Appellant and Stokes committed burglaries and theft crimes together, but not violent crimes. (23 RT 7846, 7859.) Stokes did not know ofappellant 47 ever robbing a bank. (23 RT 7846.) They were petty thieves. (23 RT 7859.) Appellant gave the moneyhestole to his family. (23 RT 7856, 7859.) Stokes believed that appellant stole in order to return to prison. (23 RT 7838.) White found that appellant functioned better in prison, and may have been unconsciously motivated by a need for the structure that prison provided. (24 RT 8126-8128, 8135-8136.) Although appellant and Stokes did not commit violent crimes together, Stokes knew appellant to be capable of violence when he had been drinking. (23 RT 7836.) White testified that appellant, like his father and brother Joe, was an alcoholic. (24 RT 8129-8130.) Stokes stated that when appellant was sober, he was not violent, but when he drank, he became mean. (23 RT 7836-7838, 7847.) Dode Hall confirmed that appellant drank heavily and that when he had been drinking, he became obnoxious and got into many barroom brawls. 24 RT 7936-7937, 7954.) Whenappellant and Stokes were in their 20’s, appellant fell in love with an older lady with whom Stokes was having sex for money. (23 RT 7838-7839, 7863.) When Stokes stole the old lady’s dog, appellant searched.all the farmhouses until he found the dog and gaveit back to her. (23 RT 7839, 7852.) Sometimeafter the incident with the dog, appellant got arrested for a safe burglary that he, his brother Joe and Stokes had committed together. (23 RT 7849-7850.) In 1972, appellant “turned state’s evidence” and told the authorities that his brother and Stokes had participated in the crime; appellant also reported that Stokes and Joe had committed another robbery without him and that Stokes had committed a residential burglary by himself. (23 RT 7841, 7846-7851, 7861.) Stokes was sent to prison and never saw appellant again. (23 RT 7841, 7847.) 48 In 1974, appellant married a woman named Diane,also from Vincennes, but the marriage did not last. (24 RT 7937-7938; 3 CT 741.) _ That same year, Dode Hall drove the getaway car for appellant in the armed robbery of a gas station. (24 RT 7932, 7951.) Appellant was apprehended; the authorities gave him the option of leaving the state of Indiana, and so he came to California. (24 RT 7932, 7939-7940.) d. Expert’s Conclusions Regarding Appellant’s Psychological Development Psychologist Gretchen White identified various factors that shaped appellant’s psychological development. (24 RT 8083, 8086.) Two major forces resulted in his inability to function outside of an institution: the problemsin his family and his institutionalization. (24 RT 8091-8092.) Raised without adequate adult supervision, he never developedthe internal controls needed to curb his own impulses. (24 RT 8128.) Outside of an institutional setting, he moved from impulse to impulse. (24 RT 8128.) His alcoholism exacerbated his impulsiveness and poor judgment. (24 RT 8130, 8139.) White found that the dearth of acceptance, affection and understanding in appellant’s childhood resulted in feelings of rejection, helplessness and inferiority, which in turn produced hostility, aggression and antisocial behavior. (24 RT 8115-81 16.) Appellant’s anger and resentment were both self-destructive and directed towards others. (24 RT 8129.) Appellant was unable to identify with any authority figure or form close relationships. (24 RT 8115.) He had strong dependency needs and no idea how to maintain himself legitimately in free society. (24 RT 8116.) 49 e. Institutional Adjustment Appellant introduced lay and expert testimony that he waslikely to behave well and be productive in prison. Several witnessestestified to appellant’s behavior at Folsom State Prison in the 1980’s, then a violent place with frequent stabbings, killings and conflicts between black and white inmates (24 RT 8053, 8074.) Two of appellant’s fellow-inmates testified that appellant was neverin any fight or incident. (24 RT 8060, 8064, 8079.) He workedin the laundry, got along well with others and lived by the rules. (24 RT 8053-8054.) He was not a memberofanyracial organization or prison gang. (24 RT 8062, 8064.) He went out of his way to help first-timers learn how not to step on toes, break rules or causeriots. (24 RT 8054-8055, 8065, 8076-8077.) According to both prison staff and civilian employees, appellant was a good workerin the laundry at Old Folsom, where he wasa clerk; he got along with others, never caused problems and never was involved in any incidents. (25 RT 8224-8225, 8231, 8234, 8242, 8244, 8246.) Appellant _ warned Challough Randall, the civilian supervisor of the laundry,if something bad was about to occur. (25 RT 8241.) In 1986, Randall becamean instructor in the vocational dry cleaning program at New Folsom Prison and had appellant transferred there because appellant wanted to learn a trade. (25 RT 8242-8243.) James Park, prison expert and former associate warden at San Quentin State Prison, testified regarding conditions of confinement for those sentencedto life -without the possibility of parole (LWOPP). (RT 8261-8281.) Park noted that studies have shownthe best predictors of future behavior in prison to be age and prior behavior while incarcerated. 50 (25 RT 8268, 8279.) At the time oftrial, Appellant was in his 50’s, and for that reason,likely to be a good prisoner. (25 RT 8279.) His prison records indicated that he had been an outstanding prisonerin the past. (25 RT 8299.) He got along well with staff and inmates, was helpful with new inmates, was an outstanding worker and was of much more than average usefulness. (25 RT 8287.) In the years he had spent in the California Department of Corrections, he had received only oneseriousrule violation, when marijuana wasfoundin the cell that he shared with another inmate. © (25 RT 8288.) He was never involved in any serious fights and had never possessed a weapon. (25 RT 8289.) He was neveraffiliated with any gang and other than the one write-up for possession of marijuana, had never been involved in drugs. (25 RT 8336.) The fact that he was willing to transfer from Old Folsom to New Folsom, a highersecurity institution, in order to learn a trade, and the fact that his supervisor requested the transfer, showed that he was an asset. (25 RT 8322-8323.) Park acknowledged that appellant had never been a good citizen outside prison. (25 RT 8332.) Park, like White, noted that people like appellant can do horrible things on the outside, but nevertheless be model prisoners, because they need the external controls that the prison environment provides. (25 RT 8281.) Park expressed a high degree of confidence that appellant would be a good prisoner and workerif sentenced to LWOPP. (25 RT 8289.) 51 bamcepa? ARGUMENTS I THE ADMISSION OF APPELLANT’S MIRANDA-VIOLATIVE AND INVOLUNTARY STATEMENT, OBTAINED BY DELIBERATE DISREGARD OF HIS INVOCATION OF HIS RIGHT TO SILENCE, AS WELL AS THE ADMISSION OF EVIDENCE DISCOVEREDAS A RESULT OF APPELLANT’S UNLAWFUL INTERROGATION, REQUIRE REVERSAL Miranda v. Arizona (1966) 384 U.S. 436 established what are now universally familiar procedural safeguards designed to protect suspects from coercion in the context of custodial interrogations. To ensure that statements madein that setting are a product of a person’s free will and to protect the Fifth Amendmentright against self-incrimination, warnings must be given before questioning begins; once warnings are given, “[i]f the individual indicates in any manner, at any timeprior to or during questioning, that he wishes to remain silent, the interrogation must cease.” (Id. at pp. 473-474.) Further, “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whetherhis ‘right to cut off questioning’ was ‘scrupulously honored.’” (Michigan v. Mosley (1975) 423 U.S. 96, 104, fn. omitted.) Althoughthe dictates of the Miranda decision are clear, this Court and lower California courts have repeatedly been confronted with evidence of questioning “outside Miranda,” where interrogating officers deliberately ignore a suspect’s invocation ofhis rights, often with the admitted purpose of obtaining statements that they suspect will be excluded from the prosecution’s case-in-chief under Miranda, but that they know will nevertheless be admissible to impeach the defendant’s trial testimony pursuant to Harris v. New York (1971) 401 U.S. 222, 225-226. (See 52 People v. Peevy (1998) 17 Cal.4th 1184, 1213; see also, e.g., People v. Jablonski (2006) 37 Cal.4th 774, 816; People v. DePriest (2007) 42 Cal.4th 1, 29-31; People v. Demetrulias (2006) 39 Cal.4th 1, 29-30; People v. Neal (2003) 31 Cal.4th 63, 80-81; People v. Bradford (1997) 14 Cal.4th 1005, 1042; In re Gilbert E. (1995) 32 Cal.App.4th 1598, 1602; People v. Bey (1993) 21 Cal.App.4th 1623, 1628; People v. Montano (1991) 226 Cal.App.3d 914, 932.) This Court has repeatedly stated that “[such] misconduct . . . is ‘unethical’ and must be ‘strongly disapproved.’” (People v. Neal, supra, 31 Cal.4th at p. 81, citations omitted; see also, e.g., People v. Jablonski, supra, 37 Cal.4th at p. 816; People v. Bradford, supra, 14 Cal.4th at p. 1042.) It has observed that “[t]his type of police misconductis not only nonproductive, . . . but can be counterproductive because in the appropriate case it would compel us to reverse a conviction.” (People v. Jablonski, supra, at p. 816.) Appellant’s is that case. At the beginning of appellant’s interrogation, the interrogating officers told appellant that they wanted to talk to him about the double robbery-murder that had occurred the previous night. They informed him of his Miranda rights and asked him if he would talk to them. Appellant responded, ““No, not about a robbery-murder. Jesus Christ.” (1 RT 1232; 11 RT 4067: Exhibit 5 [videotape of interrogation].) Without so much as a pause, the officers continued with the interrogation, initially asking a few drversionary questions, but then returning to the subject of the double robbery-murder. Overthe following three hours, they questioned appellant solely on that subject. Appellant ultimately made a number of admissions and provided information which led the detectives to three individuals whomthe prosecutor called as witnesses at appellant’s trial. (1 RT 1221; 2 RT 1262-1263; Exhibit 5 [Videotape].) 53 At the hearing on appellant’s motion to suppresshis statement and the testimony of the three witnesses, the lead interrogating officer admitted that in the interrogation, appellant “made it clear that he did not wantto talk about the robbery-homicide.” (2 RT 1256.) The officer admitted that the robbery-murder wasthe sole subject of the interrogation (1 RT 1250) and that it was his habit in general to continue questioning suspects who invokedtheir right to remain silent, in order to obtain admissions that could later be used to impeach them (2 RT 1254). Nevertheless, the trial court ruled that appellant’s statement was admissible for all purposes and allowed the prosecution to call the three witnesses whose testimony appellant argued wasfruit of the poisonoustree. (11 RT 4067-4068.) Appellant’s case presents not only a blatant violation of appellant’s right to remainsilent, but yet another example of deliberate questioning outside Miranda, a police practice whichstrikes at the very core of the Miranda decision’s purpose and one which the United States Supreme Court has recognized is a “growing trend.” (Missouri v. Seibert (2004) 542 U.S. 600, 610, fn. 2.) In light of the deterrent value of the fruit of the poisonoustree doctrine, the evidence derivative of law enforcement’s deliberate disregard of appellant’s Miranda rights should have been suppressed. Thetrial court’s admission into evidence of appellant’s statement and the testimony of the three witnesses whose identity was learned during appellant’s interrogation violated his rights pursuant to the Fifth and Fourteenth Amendments of the United States Constitution. Reversal is required. 54 A. The Trial Court Ruled That Appellant Had Invoked His Right To Remain Silent as to the Subject of the Robbery-Murder, But That His Statement Was Nevertheless Admissible For All Purposes “Priorto trial, appellant’s counsel moved to exclude appellant’s statement to law enforcement on June 21, 1993, the day ofhis arrest, as well as the statements and testimony of Susan Burlingame, Stacey Billingsley and Greg Billingsley, whose identities were revealed by appellant during the interrogation. Appellant argued that his arrest was made without probable cause, that his statement was both Miranda-violative and involuntary and that the identities of Burlingame and the two Billingsleys werefruit of the poisonous tree. (2 CT 377-391.) Thetrial court held a hearing on appellant’s suppression motion. (1 RT 1159-2 RT 1304.) The evidence presented at the suppression hearing established the following facts. On the day after the killings at The Office, appellant was arrested and transported to the Sacramento County Sheriff's Department. There, he wasplaced in an interview room containing a hidden video camera and | microphone, handcuffed to the table and interrogated over aperiod of approximately three hours. (1 RT 1225-1226, 1228-1230.) Detective Stan Reed was theprimary interrogator. (1 RT 1226.) At the outset, Reed told appellant that he wanted to talk to him about the - double robbery-murder that had occurred the night before. Reed: Sorry we had to meet under such rude circumstanceslike that but I’m sure you’ll understand why. Ah, we’re investigating a homicide that occurred out on Jackson Highway and Bradshaw Road. Occurred last night. You may have seen it on the news. 55 Appellant: Yeah. Reed: Okay. It’s arobbery-murder. Two people were killed out there. In the process this morning of investigating this, we ran into a lady who had some clothing in her possession that had blood on it. And, ah, in the process of asking whereit came from, ultimately she told us, reluctantly, but she told us. So that’s why we cameout to have a talk with you. Ah, we’d liketo talk to you aboutit, but because of the circumstances of the robbery and the murderout there and the bloody clothing andall that, ah, I’m going to have to advise you ofrights first. Okay? So you havea right to remain silent. Anything you say can and will be used against you in a court of law. Havethe right to an attorney, have him present with you while you’re being questioned, if you wish. If you cannotafford to hire an attorney, one will be appointed to represent you before any questioning. Do you fairly understand each ofthese rights? Appellant: Yeah. Reed: Having those rights in mind, will you talk to me now? Appellant: No, not about a robbery-murder. Jesus Christ. (Aug CT of 11/10/09 Appendix A,’° pp. 1-2; 1 RT 1226; 21 RT 7260-7261; 'S An unredacted transcription of the interrogation was provided to the trial court by defense counselattrial, but was not admitted into evidence or made an exhibit. (21 RT 7199-7103A) On November 10, 2009,after the record on appeal had beencertified, this Court granted appellant’s motion to augment the record with that transcription, which appellant attachedto his motion as Appendix A. Thetranscription is therefore cited herein as “Aug CT of 11/10/09 Appendix A.” The transcription indicates that when Reed asked appellant if he would talk, appellant answered, “(Unintelligible) robbery-murder. Jesus (continued...) 56 Exhibit 5 [videotape of interrogation].) Immediately after appellant’s refusal to talk about the crime under _ investigation, Detective Reed stated that he would ask appellant for information neededto identify him. (1 RT 1250.) Reed proceeded to ask appellant a handful of general questions about himself: his full name, date of birth, address, phone number, with whom he lived, where he was employed and whether he owned a vehicle; appellant answered the questions posed. (2 RT 1251; Aug CT of 11/10/09 Appendix A,pp. 2-4.) Reed then asked appellant whether he owned any guns; appellant said he did not. (Aug CT of 11/10/09 Appendix A, p. 4.) Reed asked appellant where he had been on the previous night. Appellant said that he had been at The Office bar with his girlfriend until about 9:00 p.m.; the girlfriend’s name was Sue; Sue was the mother of Stacey and Gary, and Stacey and Gary worked with appellant at McKenry’s dry cleaners. (Aug CT of 11/10/09 Appendix A, p. 4.) Appellant said he knew there had been a homicide at The Office because he had seen it on television that morning. (Aug CT of 11/10/09 Appendix A, p. 5.) Appellant said that he and Sue had gotten to The Office at about 4:00 p.m., that he took her home at around 6:00 or 7:00 p.m. and that he then returned to The Office by himself, arriving at around 7:30 or 8:00 p.m. He played pool until about 8:55 p.m. and then left. (Aug CT of 11/10/09 Appendix A,p.5.) 'S (...continued) Christ.” (Aug CT of 11/10/09 Appendix A, p. 2.) However, on the videotape of the interrogation, appellant’s answeris easily heard to be, “No, not about a robbery-murder. Jesus Christ.” (Exhibit 5 [videotape of interrogation].) The prosecutor repeatedly represented tothe trial court that these were appellant’s words (1 RT 1155, 1232), and thetrial court so found (11 RT 4067). 57 Reed asked appellant what had happenedat The Office while he was there, who waspresent, where appellant went after leaving, what kind of cigarettes he smoked, and how muchappellant had had to drink. (Aug CT of 11/10/09 Appendix A, pp. 5-10.) He then began ratcheting up the pressure: Reed: How can weexplain the clothingthat Mary got from you? Appellant: I guess you’ll have to talk to Mary aboutthat. Reed: You have no idea what she’s talking about? Appellant: No. Reed: Clothing, and a pair of boots with the blood on ‘em? Is that blood going to match the people overthere in the Office bar? Appellant: I have noidea. Reed: Whatabout the gun at Mary’s house? Is that your gun? Appellant: No Reed: Is there any guns at Mary’s that should have your fingerprints on ‘em? Appellant: Probably not. Reed: Probably not? That’s kind oflike taking lie detector test and I’1l probably passit... . (Aug CT of 11/10/09 Appendix A, pp. 11-12.) Reed asked appellantifthey would find his fingerprints on the cash register at The Office; appellant answered “no.” (Aug CT of 11/10/09 Appendix A, pp. 12-13.) Reed asked if they would find his fingerprints in the women’s restroom; appellant answered“I don’t think so.” (Aug CT of 11/10/09 Appendix A,p. 13.) Reed responded, “Here comes that magic word again. I don’t think so.” (Aug CT of 11/10/09 Appendix A, p. 13.) Appellant indicated that he had 58 not been so intoxicated the previous night that he could not remember what had happened,and Reedstated, “If you killed somebody, you’d remember.” (Aug CT of 11/10/09 Appendix A,p. 15.) After a brief discussion about appellant’s years in prison (Aug CT of 11/10/09 Appendix A, p. 16), Reed directly confronted appellant with his belief that appellant was the shooter. Reedsaid, ‘“The fact of the matteris, is — is that everything at this point pretty well, you know,points that you did this.” (Aug CT of 11/10/09 Appendix A, p. 17.) Reed then threatened appellant with the death penalty: “It’s a robbery-murder. Pretty serious stuff. Could be a capitol [sic] case.” (Aug CT of 11/10/09 Appendix A,p. 17.) He told appellant that he was convinced the blood on the clothing that Webster had given them would turn out to be the victims’, that the “circumstances” pointing to appellant were “just overwhelming,” that they had found a .45 automatic “hidden” at Webster’s house, that he believedit would test out to be the murder weapon and that appellant’s prints would be on it. (Aug CT of 11/10/09 Appendix A, p. 17.) He told appellant that “it’s kind of like a snowball in hell theory,” and “you’re screwed.” (Aug CT of 11/10/09 Appendix A, p. 17) He said he had done over 400 murder investigations and to him,it appeared to have been “an execution.” (Aug CT of 11/10/09 Appendix A, p. 17.) He remarked that juries have “no mercy” where there has been an execution. (Aug CT of 11/10/09 Appendix A, p. 17.) He asked appellant to give him an explanation that would show that he did not just “march a seventy year old woman andthis forty year old man back to a booth and blow their ass away just for grins, and no real reason.” (Aug CT of 11/10/09 Appendix A, p. 18.) Appellant responded, “T didn’t do it.” (Aug CT of 11/10/09 Appendix A,p. 18.) Reed said, “Well, doesn’t look good for you, Casey.” (Aug CT of 59 11/10/09 Appendix A, p. 18.) He stated that an explanation “could be important,” and said he would be “real disappointed”ifhe did not get one. (Aug CT of 11/10/09 Appendix A, p. 18.) Appellant then stated, “Well, the clothes are mine. I got the blood on ‘em from shaving. And the people were alive whenI left the bar.” (Aug CT of 11/10/09 Appendix A,p. 18.) Detective Edwardsstated that he did not see any marks on appellant’s face from shaving, and appellant responded “I heal fast.” (Aug CT of 11/10/09 Appendix A, p. 19.) Reed and Edwards questioned appellant about the robbery-murder for several minutes more, and appellant continued to deny being involved. (Aug CT of 11/10/09 Appendix A, pp. 18-21) At 2:08 p.m., approximately 25 minutes after the interrogation had begun,the officers left the room, instructing appellant to “give it some thought” and saying that they wanted to “hear the real story.” (Aug CT of 11/10/09 Appendix A, p. 21; 2 RT 1257.) | Appellant was left alone in the interrogation room for approximately 45 minutes. (2 RT 1257-1258.) The same twoofficers returned and resumedthe interrogation,initially asking appellant, “Well, have you-had some timeto think about it? Is there anything you couldtell us?” (1 RT 1237; Aug CT of 11/10/09 Appendix A, p. 22.) Appellant again denied killing or robbing anyone and explained why he had gone to Webster’s house the previous night and earlier that day. (Aug CT of 11/10/09 Appendix A, pp. 22-23.) The following exchange ensued: Reed: Let me see if I understand something. When I advised you of yourrights, you just didn’t want to talk about the murder and the robbery, but you wanted to talk about your alibi and that sort of thing; is that correct? 60 Appellant: I don’t know if I’ve got an alibi. Reed: Well, I mean you were — you wantedto talk about other things. What you meant by not wanting to talk, was you didn’t wantto talk about a robbery-murder? Appellant: Well, that’s whatit is, ain’t it? Reed: Exactly. But you wanted to explain about Mary and this other stuff; is that correct? Appellant: Well, I’ve beensitting here thinking about it. I know damn goodand well them people werealive whenI left there last night, and I ain’t robbed nobody. (Aug CT of 11/10/09 Appendix A, p. 23.) For several minutes thereafter, Reed and Edwards asked additional questions about the events of the previous night, after which they stated that they were booking appellant into custody. (Aug CT of 11/10/09 Appendix A, p. 27) They inventoried the contents ofappellant’s wallet and left the room. (Aug CT of 11/10/09 Appendix A, pp. 28-29.) Officer Ted Voudouris came into the room and began questioning appellant. (Aug CT of 11/10/09 Appendix A.p. 29.) Voudouris, whom appellant already knew, confirmedthat the situation was looking bad for appellant. Referring to the robbery-murder at The Office, Voudouris said that he thought appellant “did it” and urged appellant to’ admit as much and say what had happened. (Aug CT of 11/10/09 Appendix A, pp. 29-38.) After 12 minutes of interrogation, Officer Voudouris left the room and cameback in a few minutes later with Officer Reed. (1 RT 1239; Aug CT of 11/10/09 Appendix A,p. 38.) Officer Reed revealed to appellant that earlier that same day, he had tape-recorded appellant’s telephone conversation with Mary Webster, in which appellant asked Websterif she had gotten rid of “that stuff’ and 61 whether she had “putit all in one place.” (Aug CT of 11/10/09 Appendix A. pp. 40-41 .) Both Reed and Voudouris indicated repeatedly that they believed appellant had committed the crime. (Aug CT of 11/10/09 Appendix A, pp. 41-42.) Appellant eventually said, “I’m not goingtotell you nothing.” (Aug CT of 11/10/09 Appendix A, p. 42.) Shortly thereafter, more than three hours after the interrogation had begun,the officers arrested appellant for homicide and endedthe interrogation. (Aug CT of 11/10/09 Appendix A, pp. 44-46.) At no time were Miranda warnings repeated. At the suppression hearing, Detective Reed testified that he had gone to talk to appellant about the robbery-homicide and no other subject. (1 RT 1249-1250.) Reed admitted that appellant indicated at the very beginning of the interrogation that he did not wantto talk about the robbery-homicide, but Reed continued the interrogation anyway. (1 RT 1249-1250.) Reed admitted that although he told appellant he needed to get some information necessary to identify him, law enforcement had already identified appellant through information obtained from Mary Webster. (1 RT 1250-2 RT 1251.) Reedtestified that when he asked appellant whether he owned any guns, that question had nothing to do with identifying him;it had to do with the robbery-murder. (2 RT 1251.) Detective Reed’s stated purpose in conducting the interrogation was “to get admissions that would be held against [appellant] at a later time.” (2 RT 1252.) He admitted being aware that a statement found to have been taken in violation ofMiranda may nevertheless be used for impeachment purposes. (2 RT 1254.) He admittedthat, in general, it was his habit to continue questioning individuals who invokedtheir right to remain silent in order to obtain admissions that could later be used to impeach them. (2 RT 62 1254.) He admitted that appellant “madeit clear that he did not wantto talk about the robbery-homicide.” (2 RT 1256.) Although Reed admitted that the robbery-homicide wasthe sole subject of the interrogation, he nevertheless took the position that appellant’s refusal to speak on that subject did not constitute an invocation: [H]e didn’t invokehis right to an attorney. He didn’t invoke his right not to talk to me. He just didn’t wantto talk about a robbery/homicide which, in my experience, that’s the case with all these people. That’s why they call it an interrogation. In my opinion, we got past that without a problem. (2 RT 1254-1255.) When asked to confirm that, apart from the pretextual identification questions asked immediately after appellant’s invocation, the focus of the entire interrogation was on the double murderat The Office, Reed stated, “I’d say the line of questioning paralleled that, yes.” (2 RT 1252.) Reed acknowledged that over an hour into the interrogation, he brought up the subject of appellant’s refusal to talk and suggested that appellant had meantto say that he was willing to talk about his “alibi.” (2 RT 1258.) Reed acknowledged that appellant had not, in fact, said that he wantedto talk about his alibi. (2 RT 1258-1259.) Indeed, in response to Reed’s questioning, appellant had not provided anyalibi, but admitted that he was at The Office on the previous night. (Aug CT of 11/30/09 Appendix A, pp. 4-5.) At the suppression hearing, Reed admitted that he attempted to characterize appellant’s answers to his questions as a willingnessto talk abouthis “alibi” because he knew that he wouldlater be “sitting here on this stand at this hearing.” (2 RT 1259.) Reed suggested that a suspect’s refusal to answer questions abouta particular crime should not foreclose questioning abouthis alibi for that crime. (2 RT 1257.) Reed alsotestified that prior to the interrogation, he had been 63 unawareofthe existence ofStacey Billingsley, Greg Billingsley and Sue Burlingame. (2 RT 1262-1263.) The parties stipulated that the identities of Stacey and Greg Billingsley were first learned from appellant’s interrogation. (1 RT 1221.) Thetrial court denied appellant’s suppression motion,finding that law enforcementhad probable cause for appellant’s arrest and that the Statement was not coerced. (11 RT 4066-4067.) The court did not articulate any reasoning for either conclusion. The court ruled that appellant’s statement was not taken in violation ofMiranda,stating as follows: As I recall the evidence, when he was asked if he wanted to discuss the matter with the sheriff’s detectives, he said no, not about a robbery-murder, Jesus Christ. [{] The Court has reviewed the cases that have been cited by both the People and the defense and finds that Clark and Silva are on point here. [{] Clark holding that a defendant may indicate an unwillingness to discuss certain subjects without manifesting a desire to terminate an interrogation already in progress. [{] In the Silva case, he said I really don’t wantto talk aboutthat. And that was found not to be an invocation. [{] Here Mr. Case didn’t invokehis right to all subjects, only as to one. The scenario here is similar to the scenario in People vs. Ashmus, ASHMUS, 1991, 54 Cal.3d, 932.... In that case, the defendant evidently sought to alter the course of questioning but didn’t attemptto stop it altogether. And that appears to be whatthe situation was, absent an invocation of the right to remain silent, law enforcement officers may continue interrogation. The Court finds that they did so and they did so in a mannerthat was acceptable and not in violation of Mr. Case’s Mirandarights. (11 RT 4067-4068.) Appellant asked forclarification as to thetrial court’s view ofthe portion of the statement which appellant madeafter the initial interrogators left the room and anotherinterrogator(i.e., Voudouris) 64 entered. The court stated: Actually, the Court’s ruling will stand that it was not — none of these statements were taken in violation of his Miranda rights since Mr. Case did not effectively invoke them. (11 RT 4069.) Because the court found no Miranda violation, it declined to reach the fruit of the poisonoustree issue. (11 RT 4068.) Although the court admitted appellant’s statementforall purposes, the prosecutor did not present evidence ofit during his case-in-chief, but waited until after the close of appellant’s case and after all other rebuttal evidence had been presented. Over appellant’s objection that the evidence was improperrebuttal (21 RT 7204-7209; see Argument VI,infra), detective Reed thentestified that appellant had made the following statements during the interrogation: that he knew about the homicide at The Office because he had seen it on the news that morning (21 RT 7252); that on the previous night (the night of the robbery-murder), he was at The Office with his girlfriend Sue, took Sue homeat around 6:00 or 7:00 p.m., went back to The Office at about 7:30 or 8:00 p.m. and stayed there playing pool by himself until about 8:55 p.m. (21 RT 7252-7254); that he drove to The Office in Jerri Baker’s Ford Probe (21 RT 7255); that when Reed asked him if he could explain the bloody clothing that Webster said she had gotten from him, appellant said, “I guess you’ll have to talk to Mary aboutthat;” that he had no idea what Webster wastalking about or whether the blood on the clothes would match the people’s in The Office (21 RT 7256); that the clothes were his (21 RT 7256); that he had gotten the blood on them from shaving (21 RT 7256); that the people were alive when heleft the bar (21 RT 7256); and that the reason that he did not have any marks on his face from shaving wasthat he “healed fast” (21 RT 7256). This wasthe last 65 evidencethe jury heard before it began deliberations. B. The Officers Violated Miranda When They | Persisted in Interrogating Appellant after He Had Invoked His Right to Remain Silent and Plainly Stated That He Did Not Want to Talk about the Sole Subject of the Interrogation — the Robbery- Murder The facts of this case establish a Miranda violation. Appellant’s interrogators stated clearly at the beginning ofthe interrogation that they wanted to question appellant about the double robbery-murder that had occurred the previous night. (Aug CT Appendix A,pp. 1-2.) The robbery- murder was the only subject that they presented to him. (1 RT 1249-1250.) Having been read his rights and asked if he wouldtalk to the officers about the robbery-murder, appellant answered,“No, not about a robbery-murder. Jesus Christ.” (1 RT 1155, 1232; 11 RT 4067; Aug CT of 11/10/09 Appendix A, p. 2; Exhibit 5.) At that point, the police questioning should have stopped. Appellant unambiguously and unequivocally invoked his Fifth and Fourteenth Amendmentright to remainsilent as to the sole subject presented to him. Although Detective Reed recognized that appellant did not want to talk about the robbery-murder (2 RT 1255), he nevertheless continued to question him about it. That questioning was prohibited by Miranda. It is axiomatic that a criminal suspect in custody has a Fifth Amendmentright to remain silent, and one of the most important safeguards of that rightis the right to cut off questioning. (Miranda v. Arizona, supra, 384 U.S. at p. 474.) After a suspect has been advised ofhis Mirandarights, [if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the 66 interrogation must cease. At this point he has shownthat he intends to exercise his Fifth Amendmentprivilege; any statement taken after the person invokeshis privilege cannot be other than the product of compulsion, subtle or otherwise. Withoutthe right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. (Id. at pp. 473-474.) The United States Supreme Court recently reaffirmed that where a suspect makes a “simple, unambiguous statement[]” that he warits to remain silent or does not wantto talk with the police, he invokes eccce 99999his right to remain silent and the “‘“right to cut off questioning. (Berghuis v. Thompkins (2010) 560 U.S.__, 130 S.Ct. 2250, 2260, citations omitted.) Where an officer is faced with such an unequivocal and unambiguous invocation of the right to remainsilent, “further interrogation must cease.” (/d. at pp. 2263-2264.) This Court has long held that “‘no particular form of words or conduct is necessary on the part of a suspect in order to invokehis or her right to remain silent.’” (People v. Randall (1970) 1 Cal.3d 948, 955.) A suspect seeking to invokehis right to silence need not “provide any statement more explicit or more technically-worded than ‘I have nothing to say’” (Arnold v. Runnels (9 Cir. 2005) 421 F.3d 859, 865) or “I plead the Fifth” (Anderson v. Terhune (9 Cir. 2008) 516 F.3d 781, 787 (en banc), cert. denied 129 S.Ct. 344). The inquiry into whether a defendant has invoked Miranda rights is an objective one, which asks what“a reasonable officer in light of the circumstances would have understood.” (Davisv. United States (1994) 512 U.S. 452, 458-459.) On review, this Court reviews independently the trial court’s determination of whetherthe defendant invoked his Miranda rights. (People v. Gonzalez (2005) 34 67 Cal.4th 1111, 1125.) Appellant’s invocation of his right to silence ~ “No, not about a robbery-murder. Jesus Christ.” — could hardly have been clearer. As in Anderson v. Terhune, “this is not a case wherethe officers or the court were left scratching their heads as to what [appellant] meant.” (Anderson v. Terhune, supra, 516 F.3d at p. 787.) The officers told appellant what they wanted to talk to him about, and appellant said, “no.” His refusal was stated at the beginning ofthe interrogation, immediately after he was advised of his rights. He used no bywordsof equivocation such as “maybe” or “might” or “I think.” (See Arnold v. Runnels, supra, 421 F.3d at pp. 865- 866 [distinguishing cases in which the invocation was found ambiguous from cases in which the invocation was found unambiguous].) Appellant had not previously indicated any willingness to talk, nor had he signed any written waiver. By answering as he did, appellant madeit crystal clear at the outset that he did not wantto talk to the officers about the only subject which they wanted to discuss. As stated by the federal court in Arnold, “it is difficult to imagine how much moreclearly a layperson like appellant could have expressed his desire to remain silent.” 7d. at p. 866.) Officer Reed recognized that appellant was refusing to answer questions about the crime underinvestigation. At the suppression hearing, Reedtestified that appellant “didn’t invokehis right not to talk to me. He just didn’t want to talk about a robbery homicide.” (2 RT 1255.) Reed’s claim that he did not recognize appellant’s refusal to talk as an invocation is disingenuous at best. As noted above, Reed admitted that the robbery- homicide at The Office was the only subject about which he wanted to interrogate appellant andthat appellant stated he did not wantto discuss that subject. (1 RT 1249-1250.) The only questions which Reedaskedthatdid 68 not concern the robbery-murder were pretextual. Reed admitted that when appellant refused to answer questions about the robbery-murder and Reed continued asking him questions purportedly to identify him, Reed,in fact, had already identified appellant. (1 RT 1250-2 RT 1251.) By Reed’s own admission at the suppression hearing, the questions that he posed after appellant invokedhis right to silence were purely to keep appellant talking so that Reed could eventually bring him back to the subject at hand -- the robbery-murder at The Office — and obtain admissions that could be used against him. (2 RT 1252.) Reedalsotestified that suspects often state that they don’t want to discuss the crime at issue. As Reedsaid, “that’s why they call it an interrogation.” (2 RT 1255.) Reed testified that if he just keeps the interrogation going, they “for whatever reason beganto talk about it.” (2 RT 1256.) Indeed, Reed admitted that it was his habit generally to continue questioning after an invocation because ofthe likelihood that Miranda-violative statements will nevertheless be found admissible for impeachmentpurposes. (2 RT 1254.) Reed’s disingenuousnessis further revealed by his attempt, midway through the interrogation, to recharacterize appellant’s refusal to talk. Reed asked appellant if, when he said he did not want to talk about a robbery- murder, he really meant that he was.willing to discuss his alibi. (Aug CT of 11/10/09 Appendix A, p. 23) At the suppression hearing, Reed admitted that he made that suggestion to appellant because he anticipated having to defend his interrogation conduct in court. (2 RT 1259.) Reed went further and mischaracterized appellant’s response to his inquiry about an alibi, testifying that appellant said, “That’s what I said, isn’t it?” (2 RT 1266.) When confronted with the tape of the interrogation, Reed admitted that appellant said no such thing. (2 RT 1268.) The interrogation exchange was 69 as follows: Reed: Let me see if I understand something. When I advised you ofyour rights, you just didn’t want to talk about the murder and the robbery, but you wantedto talk about youralibi and that sort of thing; is that correct? Appellant: [I don’t know if I’ve got an alibi. Reed: Well, I mean you were — you wantedto talk about other things. What you meantby not wanting to talk, was you didn’t wantto talk about a robbery-murder? Appellant: Well, that’s what it is, ain’t it? (Aug CT of 11/10/09 Appendix A,p. 23.) Reed’s insertion of the topic of “alibi” into the interrogation was simply a ruse to continue questioning appellant about the robbery-murder he had refused to discuss. An “alibi” is “a defense based on the physical impossibility of a defendant’s guilt by placing the defendantin a location other than the scene ofthe crime at the relevant time,”or “the fact or state of having been elsewhere when an offense was committed.” (Black’s Law Dictionary (9" Ed. 2009).) By definition, an alibi exists only in relation to, and thus implicitly concerns, a particular crime. Reed’s attempt to characterize an alibi as a subject separate from the crime to which it refers is nothing short of specious. The fact that he attempted to recharacterize appellant’s invocation in this fashion, both during the interrogation and at the suppression hearing, calls into question Reed’s credibility and suggests that he was well aware of the unlawfulness of his conduct. Appellant had clearly invokedhis right to remain silent as to the robbery-murderand that wasthe sole subject under discussion. All questioning should have immediately ceased at that point in time. 70 Thetrial court found that appellant invokedhis right to remain silent as to only one subject (11 RT 4068), which did not effectively invoke his Mirandarights (11 RT 4069). The trial court erred. As set forth above, appellant’s refusal] from the very outset of the interrogation to discuss the only subject that the officers presented to him was a complete invocation of his rights. Even assumingthatthe trial court was correct in viewing appellant’s invocation as applying only to the subject of the robbery-murder at The Office, that subject was the sole focus ofthe police investigation and the sole subject presented to appellant during the interrogation. Appellant’s subsequent statement was inadmissible because the officers continued questioning him on that subject. Because appellant refused to talk about the only subject presented to him,this is not a selective invocation case. However, even in a selective invocation context, continued interrogation is permissible only to the extent that the suspect’s invocation is “scrupulously honored.” (Michiganv. Mosley (1975) 423 U.S. 96, 103-107 [after defendant stated that he did not wantto discuss two particular robberies, continued interrogation was -permissible in part because it focused only on an unrelated homicide].) Wherea suspect refuses to answer questions as to one or more subjects but notall, questioning must cease in the areas about whichthe suspect has declined to speak. (United States v. Soliz (9" Cir. 1997) 129 F.3d 499, 504 [statements inadmissible when madeafter defendant stated he would make a statement on the subject ofhis citizenship but agent continued to question about matters other than citizenship], overruled on other grounds in United States v. Johnson (9" Cir. 2001) 256 F.3d 895, 913, fn. 4; United States v. Lopez-Diaz (9" Cir. 1980) 630 F.2d 661, 664-665 [statements inadmissible because officer asked questions concerning offenses about which defendant 71 had refused to talk]; compare United States v. Thierman (9" Cir. 1982) 678 F.2d 1331, 1335 [statement admissible because officers abided by limitations which defendant placed on subjects he was willing to discuss].) Indeed, this Court has recognized that in a selective invocation context, it is improper to continue asking questions on the subject about which the defendant has refused to talk. (See, e.g., People v Clark (1992) 3 Cal.4th 4], 122 [where defendant agreed to talk without counsel about one murder but not about another unrelated one, it “may not have been appropriate” for police to ask further questions aboutthelatter].) Appellant unambiguously refused to answer Reed’s questions about a robbery-murder, and the robbery-murder wasthe only subject of the officers’ investigation of appellant. Reed admitted both facts. (1 RT 1249- 1250; 2 RT 1256.) Appellant’s unambiguousrefusal to discuss that subject rendered unlawful all subsequent questionsrelated to that subject. With the exception of the few patently pretextual questions immediately following appellant’s initial refusal to talk, the officers made no attempt to avoid questions pertaining to the robbery-murder. That crime and the events surrounding it were the focus of virtually all of their questions, and detective Reed admitted that his goal was toobtain damaging admissions regarding that crime. (2 RT 1252.) In short,the officers did not ‘scrupulously honor’” appellant’s right to cut off questioning on the robbery-murder. (Michigan v. Mosley, supra, 423 U.S.at p. 104, quoting Miranda v. Arizona, supra, 384 U.S. at p. 479.) They did not honorit atall. Oneofthe main purposes ofMirandais to protect a suspect’s right to silence by giving him the opportunity to cut off questioning and thereby prevent police from badgering him into makingincriminating statements against his will. (See, e.g., Miranda v. Arizona, supra, 384 U.S. at p. 474 72 [“Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”’].) Such badgering is precisely what happened here. Detective Reed continued the interrogation in spite of appellant’s clear refusal to talk about the only crime under investigation. Reed’s testimony at the suppression hearing makes unmistakably clear that in continuing the interrogation, Reed intended to overcome appellant’s express desire to remain silent. (See 2 RT 1255 [Reed explains that the point of an interrogation is to get suspectsto talk about a crime even whenthey have stated they do not wantto discussit].) Reed’s technique was obviously effective. Appellant succumbed to Reed’s persistent questioning and, ultimately, made damaging admissions about the very subject that he saidhe did not want to discuss. Appellant’s statement was obtained in clear violation of the rights that Miranda was designed to protect. In erroneously admitting appellant’s statement, the trial court relied on this Court’s decisions in People v. Silva (1988) 45 Cal.3d 604, Peoplev. Clark, supra, 3 Cal.4th 41, and People v. Ashmus, supra, 54 Cal.3d 932. Those authorities are inapposite. In all three cases, the defendant expressly waived his rights, willingly answered questions about the crime under investigation andonly later in the interrogation expressed an unwillingness to answer a particular question posed or discuss a particular area of inquiry. In Silva, -after being Mirandized and expressly waiving his rights, the defendant admitted staying with the codefendantatthe timeofthe homicide, seeing the victims with theirtrailer, filling his own truck with gas and then pulling off to the side of the road. However, when askedifhe had later driven the victim’s vehicle, the defendant answered, “I really don’t 73 wantto talk about that.” (People v. Silva, supra, 45 Cal.3d at p. 629.) The Court noted that “having obtained the defendant’s consent to the questioning,” the officer was free to interview the defendant until he exercised his privilege against self-incrimination. (/d. at p. 629.) The Court also noted that “[a] defendant may indicate an unwillingnessto discuss certain subjects without manifesting a desire to terminate ‘an interrogation already in progress.’” (Id. at pp. 629-630, citation omitted,italics added.) It explained that when the defendant balked at being asked if he had driven the victim’s vehicle, he “was not even intimating that he wished to terminate the interrogation,” and therefore the continued questioning was permissible. (/d. at p. 630.) The scenario presented in Silva was.totally unlike that presented here, where there was no express waiver, the interview wasnot already in progress, and at the very outset, appellant strongly, clearly and unambiguously refused to discuss the entire subject of the robbery-murder at The Office. In Clark, after expressly waivinghis right to remain silent, the defendanttalked freely about the crime in question. It was only when law enforcement began to question him about an unrelated killing that the defendant said, “I know about that. And I’m not going to ... talk any further about it without an attorney and that—.... That’s a whole different ball game.” (People v. Clark, supra, 3 Cal.4th at p. 122.) The officers did not ask any further questions about the unrelated killing, and noneofthe defendant’s statements in that regard resulted in any charges. (Jbid.) The Court found that the defendant had not completely refused to talk without an attorney, but “he indicated he would nottalk aboutone limited subject- unrelated to the offenses here charged-without an attorney present.” (/bid.) Asin Silva, the Court noted that when “‘an interrogation is already in 74 progress,’” the defendant may indicate an unwillingness to discuss certain subjects. ([bid.) The officers had honored the defendant’s refusal to discuss the other unrelated crime. (/bid.) The Court held that the defendant’s unwillingness to discuss that crime without counsel “did not prevent further questions on subjects about which defendant was willing to talk...... Defendant did not invokethe right as to all subjects, only as to one.” (Ibid.) Appellant’s case is not at all similar to Clark. To be sure, as in - Clark, the trial court found that appellant “did not invokethehisright to all subjects, only as to one.” (11 RT 4067.) However, unlike in Clark, the subject as to which appellant invokedhis rights was the only subject presented. Further, when the defendant in Clark invoked his right to counselas to the unrelated crime, the interrogating officers stopped questioning him on that subject and noneofhis statements regarding that crime were used against him. In stark contrast, appellant’s interrogators asked numerous questions concerning the robbery-murder which appellant already had refused to discuss, and his subsequent statement was used in obtaining the convictions and death sentence. In Ashmus, the defendant expressly waived his rights and answered a number of questions about the scene of the crime. It was only when the interrogating officer told the defendant that someone hadseena little girl standing next to the defendant that the defendant interrupted andsaid, “You’regonnatry to con-, now I ain’t saying no more” and “don’t say no more.” (People v. Ashmus, supra, 54 Cal.3d at p. 968.) The Court found that “within their context,” the defendant’s words indicated that he had only “soughtto alter the course of the questioning,” but “did not attemptto stop it altogether.” (d. at pp. 970-971.) By contrast, appellant never waived his 75 rights, and at the outset, and unlike Ashmus’s defensive, inarticulate and ambiguous resistance to a particular question posed in the middle of the interrogation, appellant manifested a clear, firm, comprehensiverefusal to discuss the entire subject-matter of the interrogation at the very outset. In contrast to Silva, Clark and Ashmus, appellant never waived his rights. He did not simply refuse to discuss only a subset ofthe officers’ questions or a subject matter unrelated to the main focus ofthe interrogation. Rather, immediately after he was read his rights, appellant unambiguously and unequivocally refused to discuss the only subject about whichthe officers sought to question him. Theofficers knew that he did not wantto talk aboutit, but they continued questioning him on that subject. The decisionsrelied on by the trial court lend no support to its ruling that appellant’s invocation ofhisrights with respect to the robbery-murder did not effectively cut off the ensuing questioning which pertained to that very same subject. Nor do this Court’s other decisions rejecting claimed invocations of the right to remain silent support the trial court’s ruling in this case. In other decisions, the defendant expressly waived the right to remainsilent at the outset (See, e.g., People v. Stitely (2005) 35 Cal.4th 514, 534-536 [no invocation where defendant initially waived his rights and answered questions, but when officer suggested that he had fought with victim, said, “T think it's about time for me to stop talking”; People v. Rundle (2008) 43 Cal.4th 76, 116-117 [no invocation where defendant had waived rights and confessed to murder before saying that he wanted to stop the interview because he had a headache]; People v. Martinez (2010) 47 Cal4th 911, 949-952 [no invocation where defendant expressly waived rights and answered questions, was confronted with inconsistencies in his statements 76 and after being told they would take a break, said “I don’t wantto talk any more right now”) or did not clearly and unequivocally invocation of the right to remain silent (see, e.g., People v. Jennings (1988) 46 Cal.3d 963, 977-979 [defendant’s statement that he wasn’t going to say any more indicated only momentary frustration and animosity toward one interrogator whodefendant believed was misconstruing his statements]; People v. Musselwhite (1998) [defendant’s statement, “I don’t want to talk about this,” was a response to being pressed on whether he had beenin the apartment complex where the victim’s body was found on the day of her murder, not a request to terminate the interrogation]; People v. Johnson (1993).6 Cal.4th 1, 26-28 [no invocation where defendantsaid “No tape recorder. I don’t want to incriminate myself,” but was then advised of rights and expressly waived them without qualification]). By contrast, appellant clearly and unequivocally invokedthe right to remain silent as to the robbery-murder, as both thetrial court and the interrogating officer recognized. The continued questioning concerned that very subject, and that subject was the only subject under discussion. Therefore, whether the invocation is viewed as complete or partial, the continued interrogation violated appellant’s Fifth and Fourteenth Amendmentright to remain silent. Finally, the fact that the prosecutor presented appellant’s statement as part of his case in rebuttal rather than in his case-in-chief does not diminish the error. Appellant did not testify. Although a defendant’s unlawfully-obtained statements are admissible to impeach the defendantif and whenhetestifies, the high court has refused to expandthat limited exception to the exclusionary rule, and has expressly held that such evidence may not be used to impeach witnesses other than the defendant. (Jamesv. Illinois (1990) 493 U.S. 307, 319-320; United States v. Havens 77 (1980) 446 U.S. 620, 627-628; Oregon v. Hass (1975) 420 U.S. 714, 723- 724; Harris v. New York, supra, 401 U.S. at p. 226.) This Court has applied the same rule. (See People v. Boyer (2006) 38 Cal.4th 412, 462.) Appellant is aware of no decision that has treated Miranda-violative statements admitted as rebuttal when the defendant has nottestified differently than Miranda-violative statements admitted in the prosecution’s case-in-chief. Moreover, the high court’s reasons for not extending the impeachment exception to defense witnesses other than the defendant apply just as forcefully to the prosecutor’s use of Miranda-violative statements in rebuttal: expanding the exception would chill defendants from presenting witnesses who would otherwise offer probative evidence, would “significantly enhance the expected valueto the prosecution ofillegally obtained evidence” and would encourage police misconduct. (Jamesv. Illinois, supra, 493 U.S. at pp. 314-319.) In summary, appellant’s interrogators told him at the outset that they wanted to discuss the robbery-murderthat had occurred the night before, and that was the only subject of the interrogation. Whenthe officers advised appellant of his Miranda rights and asked him if he wouldtalk to- them, appellant responded, “No, not about a robbery-murder. Jesus Christ.” Appellant’s response wasa clear, unambiguous and unequivocal refusal to talk about the subject which the officers wanted to discuss. The lead interrogating officer recognized andthetrial court foundthat appellant did not wantto talk about that subject. (1 RT 1250; 11-RT 4068.) Appellant’s statement cannot reasonably be construedasa refusal to discuss only a subset of the officers’ questions, as only the robbery-murder was under investigation and that was the subject which appellant refused to discuss. In context, any reasonable police officer would have understood that 78 appellant’s statement constituted an invocation of the right to remain silent. The officers here simply ignored it. Their continued questioning of appellant cannot be justified on any grounds. Appellant’s statement was taken in violation of his Miranda rights under the Fifth and Fourteenth Amendments, and the use of his statement against him at trial was unconstitutional. C. Appellant’s Statement Was the Productof Psychological Coercion and Was Involuntary The Fifth Amendment guarantees a person’s right to remain silent “unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty .. . for such silence.” (Malloy v. Hogan (1964) 378 U.S. 1, 8 [holding the Fifth Amendment applicable to the states through the Fourteenth Amendment].) If a statementis the product of coercive police activity, it is involuntary and subject to exclusion at trial. (Colorado v. Connelly (1986) 479 U.S. 157, 167; Mincey v. Arizona (1978) 437 U.S. 385, 398.) This Court reviews independently a trial court’s determination of voluntariness. (People v. Guerra (2006) 37 Cal.4th 1067, 1093.) Underboth state and federal Constitutions, courts apply a “totality of circumstances” test to determine the voluntariness of a confession. (Withrow v. Williams (1993) 507 U.S. 680, 693-694; People v. Neal, supra, 31 Cal.4th 63, 79.) It is the prosecutor’s burden to prove by a ' preponderanceofthe evidence that statements obtained from the suspect were voluntary. (People v. Williams (1997) 16 Cal.4th 634, 659, citing Lego v. Twomey (1972) 404 U.S. 477, 489.) The prosecutor in appellant’s case failed to meet that burden, andthetrial court erred in ruling to the contrary. (See 11 RT 4067.) Appellant’s statement was the involuntary product of improper police coercion and should have been suppressed. 79 In Miranda, the Supreme Court acknowledged that “inherently compelling pressures” are present whenever a person suspected of a crime is interrogated in custody, pressures which “work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise doso freely.” (Miranda v. Arizona, supra, 384 U.S.at p. 467.) In addition to those inherent pressures, other factors short of brutality may work to compromisethe free will of the accused. Interrogation tactics need not be violent or physical to be coercive. “Psychological coercion is equally likely to result in involuntary statements, and thus is also forbidden.” (Collazo v. Estelle (9" Cir. 1991) 940 F.2d 411, 416 (en banc).) A violation of the procedures required by Miranda, even a simple failure to warn, raises a presumption of coercion. (United States v. Patane (2004) 542 U.S. 630, 639; Oregon v. Elstad (1985) 470 U.S. 298, 306-307 & fn.1.) Although this Court has held that an interrogator’s deliberate disregard of an invocation ofMiranda rights is not per se coercive (People v. Bradford, supra, 14 Cal.4th at pp. 1039-1040), it has also held that where an interrogating officer disregards the defendant’s invocation of Miranda rights and continues the interrogation in spite ofit, that fact weighs heavily against the voluntariness of the defendant’s subsequent statement (Peoplev. Neal, supra, 31 Cal.4th at pp. 81-82 [although defendant was vulnerable, detention conditions were harsh and officers made threats and promises, circumstance weighing “most heavily against the voluntariness” was continuedinterrogation after repeated invocations]).'° Where the police ‘© Some membersofthis Court have suggested that the holding in Bradford should be limited to its facts and that continuing an interrogation after the suspect invokes his rights may in other circumstances be inherently (continued...) 80 continue questioning after the defendant has invokedhis rights, the message is that his rights will not be honored until he provides a “statement of some sort.” (People y Neal, supra, 31 Cal.4th at p. 82.) By not honoring a suspect’s right to cut off questioning, the police take unfair advantage of the “compelling pressures that weigh upon a person in custody, pressures that can break a person’s free will and cause the person to talk involuntarily.” (Miranda, supra, 384 U.S.at p. 467.) Here, appellant clearly and emphatically stated to his interrogators that he did not wantto talk about the robbery-murder at hand. Nevertheless, the officers continued to interrogate him, handcuffed him to the table (1 RT .. 1228-1229), without even a pause or an acknowledgmentthat he had refused to speak to them on that subject. The lead investigating officer recognized that appellant had declined to speak about the crimeat issue. (2 RT 1255.) The officers’ conduct communicated to appellant that they would not take “no”for an answer. A statement is also involuntary whenit has been “extracted by any sort of threats...” (Hutto v. Ross (1976) 429 U.S. 28, 30.) Officials may not extract a confession “by any sort of threats or violence, nor... by any direct or implied promises, howeverslight, nor by the exertion of any improperinfluence.” (Bram v. United States (1897) 168 U.S. 532, 542-43, quoted in Malloy, supra, 378 U.S. at p. 7.) “[I]n carrying outtheir interrogations the police must also avoid threats of punishmentfor the '® (...continued) coercive. (See People v. Storm (2002) 28 Cal.4th 1007, 1045 (dis. opn. of Chin, J., joined by George, C.J.) [“I seriously question Bradford’s suggestion that, following Elstad, continued interrogation after invocation of right to counsel is not ‘inherently’ coercive. [Citation.]’’) 81 suspect’s failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession.” (People v. Holloway (2004) 33 Cal.4th 96, 115.) In an attemptto elicit a confession from appellant, Detective Reed told appellant that he could be subject to the death penalty. (Aug CT of 11/10/09 Appendix A,p. 17 [“Could be a capitol [sic] case.”]) He implied that appellant had no chance of escaping conviction. (Aug CT of 11/10/09 Appendix A, p. 17 [“[I]n my opinion, Casey is — it’s kind of like a snowball in hell theory. You’re — you’re screwed... .”]|) He told appellant that it appeared to him to have been “an execution”and that juries “have no mercy” whenthatis the case (Aug CT of 11/10/09 Appendix A,p. 17), that it “doesn’t look good” (Aug CT of 11/10/09 Appendix A, pp. 18, 38) and “it looks real bad” (Aug CT of 11/10/09 Appendix A, pp, 29, 31). Voudouris told appellant, “I think you’d be a whole hell of a lot betteroffif you just said, hey, and said, ‘Got me.’” (Aug CT of 11/10/09 Appendix A, p. 30.) Reed said, “There’s got to be moreto the story. . . . [T]he jury likes explanations for things. Sometimesit can benefit you in the long run.” (Aug CT of 11/10/09 Appendix A, p. 40.) Later, Reed remarked,“I think that if there’s more to the story than just marching two people into a bathroom and blowing them awaycold bloodily [sic], that it can’t help but benefit you.” (Aug CT of 11/10/09 Appendix A, p. 41.) These statements effectively communicated to appellant that if he did not cooperate, he would be subject to the death penalty, but if he confessed or provided some explanation, he would receive more lenient treatment. Individually, the detectives’ implied promisethat if appellant told what happened he could improvehis prospects and the thinly-veiled threat of the death penalty if he did nottell his side of the story may not, standing 82 alone, have rendered appellant’s statement involuntary. (See People v. Holloway, supra, 33 Cal.4th at p. 115 [confession must result directly from the threat in order for threat to renderit involuntary].) However, together with the officers’ disregard for appellant’s invocation of his right to remain silent, the factors coalesced to a create coercive effect. The officers’ strategy was effective: appellant answered their questions despite his clearly stated desire not to talk to them about the crime that they were investigating. Their tactics succeeded in insidiously overcominghis will andcajoling him into talking about that very-subject. For the foregoing reasons, his statement was involuntary and inadmissible for any purpose. D. The Testimony of Greg Billingsley, Stacey Billingsley, and Sue Burlingame Was Also Inadmissible Because of law enforcement’s misconduct during appellant’s interrogation, not only appellant’s statement, but also the evidence obtained as a result of that statement was inadmissible. A byproduct of appellant’s interrogation was the testimony ofprosecution. witnesses Greg Billingsley, Stacey Billingsley and Sue Burlingame; law enforcement officers had no information about those witnesses until appellant provided it. (1 RT 1221; 2 RT 1262-1263.) Whether this Court should find appellant’s statement involuntary or Miranda-violative but voluntary, the trial court erred in denying appellant’s motion to suppress the testimonyofthose three witnesses. That evidence was derivative of police coercion and ofan interrogation technique deliberately designed to thwart Miranda’s protections, and it would not inevitably have otherwise been discovered. 83 1. The Evidence Was Obtainedas a Result of Appellant’s Involuntary Statement and Was Therefore Inadmissible Asset forth in Section C above, appellant’s statement was obtained through the use of coercion and was involuntary. The Supreme Court oerecently reaffirmed the long-standing principle that “‘those subjected to coercive police interrogations have an automatic protection from the use of their involuntary statements (or evidence derivedfrom their statements) in any subsequentcriminaltrial.’” (United State v. Patane, supra, 542 US.at _p. 650, quoting Chavez v. Martinez (2003) 538 U.S. 760, 769, italics added; cf. Oregon v. Elstad, supra, 470 U.S. at p. 307 [fruits of an involuntary statement must “be discarded as inherently tainted”].) Therefore, both the statementitself and all evidence derived from it were inadmissible for any purpose, andthetrial court’s denial of appellant’s motion to suppress the testimony of Sue Burlingame, Stacey Billingsley and Greg Billingsley was error. 2. The Evidence Should Have Been Suppressed Because it Was Derivative of an Interrogation Strategy of Deliberately Ignoring Appellant’s Invocation of His Rights in Order to Circumvent Miranda This Courtrepeatedly has been confronted with the fact that some law enforcement officers employ a deliberate interrogation tactic of questioning “outside Miranda” and repeatedly has condemnedsuchtactics. (See cases cited at pp. 52-53, ante.) The United States Supreme Court, too, has noted the growingtrend ofpolice training programsthat “advise officers to omit Miranda warnings altogether”or, as occurredin this case, “to continue questioning after the suspect invokeshis rights.” (Missouri v. 84 Seibert, supra, 542 U.S. at p. 610, fn. 2.) Despite judicial disapproval of such misconduct, the deliberate, tactical disregard of Miranda persists. Without a remedy that imposes consequencesfor such police misconduct, it is likely to continue, making Miranda’s right to remain silent “obeyed in name butnot in fact.” (People v. Storm, supra, 28 Cal.4th at p. 1040 (dis. opn. of George, C.J.) This case presents the Court with an opportunity to craft, and this case warrants, that remedy. If appellant’s statement is found to have been voluntary, this Court should hold that derivative evidence, whetherit be physical evidence or the testimony of a witness, is inadmissible whereit is obtained as a result of a custodialinterrogation in which the interrogating officers, for the purpose of evading Miranda’s safeguards, deliberately ignore the suspect’s invocation ofthe right to remain silent. Neither this Court nor the United States Supreme Court has decided this issue. The remedy appellant seeks would further the deterrence rationale underlying the high court’s decisions regarding the application of the fruit of the poisonous tree doctrine in the context ofMiranda violations and would create a much-needed disincentive for law enforcement to employ interrogation techniques designed to thwart Miranda’ s purpose. Because appellant’s interrogators, as an investigative strategy, deliberately ignored appellant’s invocation of the right to remain silent, knowing that Miranda-violative statements would be admissible for impeachmentpurposes, the evidence derived from appellant’s statement should have been suppressed. This Court has discussed, but has not decided, whetherthe fruit of the poisonoustree doctrine applies to nontestimonial evidence derivative of a Miranda violation. In People v. Davis (2009) 46 Cal.4th 539, the Court stated that the doctrine does not apply to physical evidence seized as a result 85 of a “noncoercive” Miranda violation. (/d. at p. 598.) That statement, however, was dictum, as the Court found that Miranda had not been violated. Under the rescue doctrine, police had not violated the defendant’s rights by reinitiating contact after he invoked the right to counsel; the defendant’s subsequent confession also was admissible because it was preceded by additional Miranda warnings and an express waiverofrights. (Id. at pp. 595-597.) Importantly, Davis did not involve interrogation tactics deliberately designed to thwart the purpose of Miranda. Noris the proposed remedy inconsistent with this Court’s decisions rejecting claims that a defendant’s own statement was inadmissible as the tainted product of a previous Miranda-violative but voluntary statement. (See People v. San Nicolas (2004) 34 Cal.4th 614, 637-639 [non-deliberate failure to warn did not taint subsequentinterview initiated by defendant]; People v. Storm, supra, 28 Cal.4th 1007, 1035-1036 [statement taken in disregard of defendant’s request for counsel, where violation was not a deliberate police stratagem, did not taint subsequentinterview conducted after two-day break in custody]; People v. Bradford, supra, 14 Cal.4th 1005, 1038-1040, 1042, 1043 [statement taken in deliberate disregard of defendant’s previous request for counsel-but not “calculated to undermine” the exercise of free will did not taint subsequent interrogation initiated by defendant].) Indeed, in Storm, the Court took pains to note the absence of any indication of “ruse or pretext to avoid the strictures ofMiranda and Edwards”(id. at p. 1013) or evidence of any deliberate police misconduct or subterfuge (id. at pp. 1025-1026, 1027, 1038). Thus, none of these decisions concerns evidence derivative of a deliberate interrogation strategy or practice of ignoring the suspect’s invocation of rights in order to circumvent Miranda. 86 Similarly, the United States Supreme Court has not decidedthis issue. The high court has addressed and declined to apply the fruit of the poisonoustree doctrine in the context ofMiranda violations in three decisions, all involving non-deliberate failures to provide Miranda warnings. (See United States v. Patane (“Patane”’), supra, 542 U.S.at p. 639 [gun located and seized as a result of voluntary statement made without complete Miranda advisement was not inadmissible, where failure to warn was non-deliberate and resulted from defendant interrupting interrogating officer]; Oregon v. Elstad (“Elstad’), supra, 470 US.at p. 307 [brief crime scene questioning without Miranda warnings did not warrant suppression of subsequent confession obtainedat police station after Miranda warnings had been given, where failure to warn was an oversight and no invocation of rights had been ignored]; Michigan v. Tucker (“Tucker”) (1974) 417 U.S. 433, 452 [testimony ofwitness whose identity was revealed by defendantin statement obtained without Miranda advisement was admissible, where interrogation occurred before Miranda decision and failure to warn was in goodfaith, not willful or negligent].) Each of these decisions involved a non-deliberate failure to warn and did not foreclose the view that a deliberate violation, particularly one in which police ignore an invocation, would warrant suppression. In Tucker, the court indicated that if police had violated Miranda willfully, the deterrent purpose of the exclusionary rule might be served by exclusion, as it would instill in interrogating officers “a greater degree of care towardthe rights of an accused.” (Tucker, supra, 417 U.S.at p. 447.) In Elstad, the majority opinion noted that no “deliberate means calculated to break the suspect’s will” (Elstad, 470 U.S. at p. 312) or “deliberately | coercive or impropertactics” (id. at p. 314) were involved, and expressly 87 distinguished cases “concerning suspects whose invocation oftheir rights to remain silent and to have counsel present wereflatly ignored while police subjected them to continued interrogation. [Citations.]” (/d. at p. 313, fn. 3.) In Patane, Justice Thomas questioned whethera deliberate failure to warn should be treated differently (id. at p. 641), but Justice Kennedy, whose opinionset forth the plurality’s ruling, found it unnecessary to decide that question (id. at p. 645 (conc. opn. of Kennedy,J.)), and the four dissenting justices clearly favored suppression of any deliberate Miranda violation (id. at p. 646 (dis. opn. of Souter, J.) [physical evidence derivative of any Miranda violation should be suppressed]; (id. at p. 648 (dis. opn. of Breyer,J.) [evidence derivative of a Miranda violation should be suppressed unless police acted in good faith]). The high court’s concern with tactics deliberately designed to circumventthe protections afforded by Miranda was madeexplicit in Missouri v. Seibert, supra, 542 U.S. 600, where a plurality of the court held that a statement obtained by use of a question-first technique wastainted by the previous deliberate failure to warn and was therefore inadmissible. The lead opinion condemned the techniqueas “a police strategy adapted to undermine the Miranda warnings”(id. at p. 616, fn. omitted). Justice Kennedy’s plurality opinion emphasized that the interrogation technique was “designed to circumvent [Miranda]”(id. at p. 618 (conc. opn. of Kennedy,J.), and involved “an intentional misrepresentation of the protection that Miranda offers .. .” (id. at pp. 621-622), “used ina calculated way to undermine the Miranda warning”(id. at p. 622). The high court’s decisions regarding evidence derivative of Miranda violations consistently turn on the degree to which the need for deterrence and concerns about trustworthiness are implicated. In cases involving 88 inadvertent or good faith Miranda violations, neither goal would be served by excluding derivative evidence. In Tucker, the court noted the deterrent purpose of suppression would be served only if the police misconduct was “willful, or at the very least negligent” (Tucker, 417 U.S. at p. 447) and considered the interest in preventing the presentation of untrustworthy evidence(id. at p. 448). In Elstad, the majority found that “the absence of any coercion or impropertactics undercuts the twin rationales-- trustworthiness and deterrence — for a broaderrule.” (Elstad, 470 US.at p. 308.) In Patane, Justice Thomas found that a blanket suppression rule was “not justified by the interest in deterrence or trustworthiness (Patane, 542 U.S. at pp. 639-640), and Justice Kennedy considered whether suppression could be “justified by a deterrence rationale sensitive to both law enforcementinterests and a suspect’s rights during an in-custody interrogation” (id. at p. 645 (conc. opn. ofKennedy,J.)). Similarly, in Seibert, where the violation was deliberate, the goal of deterring police attempts to evade Miranda informedthe decision. The lead opinion found that the question-first tactic “threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted” (Seibert, supra, 542 U.S. at p. 617) and found that suppression was warrantedso that “(s|trategists dedicated to draining the substance out ofMiranda cannot accomplish by training instructions what [Dickerson v. United States (2000) 530 U.S. 428] held Congress could not do by statute” (Seibert, supra,at p. 617). Although the trustworthinessrationale is not implicated by the use of evidence derived from the Miranda violation in this case, the need for deterrence of police practices deliberately designed to circumvent Miranda is so strong thatit alone justifies the suppression rule proposedhere. The decision in People v. Peevy, supra, 17 Cal.4th 1184, does not 89 preclude the remedy appellant seeks. The Court there refused to sanction a calculated Miranda violation — deliberately ignoring the defendant’s request for counsel ~ by barring use of his statement for impeachment purposes. Peevy relied heavily on Harris v. New York, supra, 401 U.S.at pp. 224, 226, and Oregon v. Hass, supra, 420 U.S. at p. 722, which had permitted impeachment of defendants with Miranda-violative statements. Asthis Court explained, the high court hadto strike “a balance between the need to deter police misconduct and the need to expose defendants who perjure themselvesat trial” (Peevy, supra, at p. 1194), and rejected an exclusionary remedy which, whether for negligent or deliberate Miranda violations, would turn police misconduct into a shield for a defendant’s perjury (id. at pp. 1194-1199). The rule proposed here, by contrast, would not allow for perjurious testimony or otherwise undermine any trustworthiness concerns, and thus the concerns that governed the Court’s decision in Peevy do not apply. Further, the interest served by a rule suppressing witness testimony derived from a deliberate Miranda violation is more compelling than that served by the rule proposed in Peevy because a defendant facing impeachmentwith his Miranda-violative statement can avoid the latter exploitation of the police illegality by choosing notto testify, whereas he is | powerless to prevent the prosecutor’s use of other types of derivative evidence unless it is suppressed. To be sure, the exclusion of evidence derivative of police misconduct, whether the misconductis inadvertent, negligent or deliberate, does not directly implicate the Fifth Amendment's core protection against compelled self-incrimination. However, where law enforcementofficers deliberately devise and employ a strategy for avoiding the procedures designed to safeguard that core protection, and there is no countervailing 90 concern with the defendant presenting unchecked purposeful perjury, the interest in deterring Miranda violations warrants suppression. In appellant’s case, the lead interrogating officer admitted that it was his practice to continue interrogating a suspect who invokedhisrights because the suspect’s desire not to talk is often overborne by continued questioning and that his aim in employingthis strategy was to obtain investigative leads and impeachment material. (2 RT 1254.) Now, more than ten years after Peevy, it is more apparent than ever that this practice of deliberately ignoring a suspect’s invocation ofhis rights and flouting Miranda’s clear requirements are typical of a widespread trend in police interrogation practices. Statements of disapproval, even from the highest courts of the state and nation, have been ineffectual at curbing such practices. Without the imposition of some material, negative consequence for such deliberate misconduct, such techniques for circumventing Miranda will continue. The violation here was no simple failure to abide by Miranda’s prophylactic procedures. It was a calculated violation of appellant’s invocation of his rights. There is a “‘qualitative difference’ between merefailure to give Miranda wamingsandfailure to honor them ~ - once the suspect has attempted to assert them.” (People v. Storm, supra, 28 Cal.4th at p. 1045 (dis. opn. of Chin, J., joned by George, C.J.), quoting State v. Hartley (1986) 103 N.J. 252 [522 A.2d 80, 90-91].) Where evidence obtained as a result of such deliberate misconduct is not suppressed, police officers “have carte blanche” to ignore Miranda and useable evidence to gain by simply ignoring a suspect’s invocation ofhis rights and continuing with the interrogation until they obtain the information that they seek. (See People v. Storm, supra, 28 Cal.4th atp. 1046.) For the foregoing reasons, this Court should hold that evidence 91 derivative of a calculated and deliberate strategy of ignoring a suspect’s invocation of his Miranda rights is inadmissible in the suspect’s ensuing criminaltrial, and that the trial court erred in denying appellant’s motion to suppress the testimony of Greg Billingsley, Stacey Billingsley, and Sue Burlingame. 3. The Evidence Would Not Inevitably Have Been Discovered The “inevitable discovery” exception to the exclusionary rule permits admission ofillegally obtained evidence where “the prosecution can establish by a preponderanceofthe evidencethat the information ultimately or inevitably would have been discovered by lawful means.” (Nix v. Williams (1984) 467 U.S. 431, 444; People v. Robles (2000) 23 Cal.4th 789, 800-801; People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 682.) This exception does not apply to the testimony of Sue Burlingame and Greg and Stacey Billingsley. The burdenis on the prosecution to establish that evidence, although illegally obtained, is nevertheless admissible under the inevitable discovery doctrine. (Nix v. Williams, supra, 467 U.S. at p. 444; People v. Robles, supra, 23 Cal.4th at pp. 800-801.) The showing must be based not on speculation but on “demonstrated historical facts capable of ready verification or impeachment.” (Nix v. Williams, supra, 467 U.S. at 444-45, fn. 5; People v. Hughston (2008) 168 Cal.App.4th 1062.) This Court has held that to establish inevitable discovery, the prosecution must show a reasonable probability that the evidence would have been procured by lawful means. (People v. Boyer (1989) 48 Cal.3d 247, 278, overruled on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) While not controlling, Ninth Circuit law is instructive. Whereas 92 | other circuits require that the evidence would have been obtained through some investigation that had been initiated prior to and independentofthe illegality, the Ninth Circuit has found that the government can meetits burden by establishing that the police would inevitably have uncovered the evidence by following routine procedures. (United States v Ramirez- Sandoval (9" Cir. 1989) 872 F.2d 1392, 1399.) Nevertheless,it is not enough for the government simply to assert that it would have found the evidence; it must present facts, not simply speculation, to support such a claim. (Id. at p. 1400 [evidence wasinsufficient to show that in the absence of the illegal search, the officer would have spoken to the undocumented aliens in the back ofthe itlegallyseized van].) The prosecution did not establish such facts in this case. At the suppression hearing, detective Edwardstestified that Mary Webster had provided the name andlocation of appellant’s employer and had told them that on the evening ofthe killings, appellant had been driving Jerri Baker’s car. (1 RT 1219.) Edwardsstated that, based on that information, in the normal course ofhis investigation as a homicide detective, he would “contact the place of employment and talk with her for a little bit ofbackground andhis activities.” (1 RT 1219.) He alse stated he would attempt to contact other employees who knew the defendant and might know his activities. (1 RT 1220.) This bald assertion is not sufficient to prove inevitable discovery. The evidence presentedat trial showsthat although-Edwards and Reed contacted Baker, she told them nothing that would have led them to the Billingsleys or Sue Burlingame. She told them that she had never seen appellant with a gun (18 RT 6200), she did not remember whatcolor shirt appellant was wearing on the previous day (18 RT 6199) and appellant had 93 told her his mother wasill and he was going tovisit her (18 RT 6201).!” There was noevidencethat the detectives asked Baker for the names of other employees of McKenry’s or asked her to identify anyone there who would have knownof appellant’s activities or background. They did not ask her any question that, if answered, would have led them to Stacey or Greg Billingsley or Sue Burlingame,nor did the evidence indicate that she would have provided them with such information had they asked. The evidence failed to show that any representative of law enforcement ever went to McKenry’s or attempted to speak to any employee of that business other than those whose namesappellant had provided. Reed remembered speaking to the owner, Chuck McKenry, by phone, but did not indicate whatthey had discussed; Reed never went to McKenry’s and did not remember anyoneelse doing so at his direction. (2 RT 1271-1272.) There was no evidence that Mr. McKenry knew anything about appellant’s activities or relationships with other employees.’ McKenry’s had 25 employees. (2 RT 1303.) Reed admitted that he was speculating when he said that if appellant had not provided the information about Burlingame and her daughter, he would have contacted people at McKenry’sto find out '’ This evidence waspresentedattrial, after the trial court had denied appellant’s motion to suppress appellant’s interrogation statement andits fruits. This Court may consider facts in the record in reviewing the question of inevitable discovery. (See, e.g., People v. Boyer, supra, 48 Cal.3d at pp. 277-279 [witness’s trial testimony considered in determining whether evidence would inevitably have been discovered].) '8 Jean McKenry testified for the defense regarding appellant’s access to the safe when he worked on Saturdays and the fact that he had worked on the day before the killings, a Saturday; she made no mention of Greg or Stacey Billingsley, and there is no evidence that she knew that appellant had becomefriends with them. (20 RT 6757-6770.) 94 | more about appellant. (2 RT 1273.) Noris there any evidence to support a finding that Webster or Baker would haveled police to any of those witnesses. There is no indication that either of them knew that appellant socialized with the Billingsleys. Webster did not know of Burlingame until someone from law enforcementtold her. (16 RT 5639-5640.) Baker did not know that appellant had seen Burlingameon the day of the killings and did not know of appellant’s interest in Burlingame until she read the police reports.’ (18 RT 6146.) Further, Baker was generally uncooperative with law enforcement until many monthsafter the killings, when she and appellant ended their relationship. (18 RT 6098-6100, 6234.) Unlike other cases in which this Court has found that unlawfully obtained evidence would inevitably have been discovered, the evidence does not indicate that any of the witnesses otherwise known to law enforcement would have led them to those individuals. (See Peoplev. Boyer, supra, 48 Cal.3d 247, 277-279 [witness would have been discovered because defendant’s girlfriend knew that defendant had been with the witness on the day ofthe killings, and police were pursuing a broad-based investigation of every person who mightpossibly be involved]; People v. '? On the day of the killings, appellant told Baker he was going to play pool, but he did not tell her he was going with anyone. (18 RT 6240.) Although appellant had previously told Baker he had taken Burlingame out to play pool (18 RT 6326), there is no evidence that Baker had reason to believe Burlingame knew of appellant’s activities on the day ofthe killings. Reedtestified that he asked Bakerif she knew Sue Burlingame; she then identified Burlingame as the mother of two people who workedat the cleaners. (18 RT 6934.) However, there is no reason to believe that if she had not beenspecifically asked about Burlingame, she would have given law enforcement information suggesting a reason to contact them. 95 Carpenter (1999) 21 Cal.4th 1016, 1039 [employee of optometrist’s office would have been discovered because officer had previously visited optometrist’s office and had already decided to return for further investigation.].) As detective Reed admitted at the suppression hearing, he was“just speculating” that he would have contacted the owner of McKenry’s Cleaners and would have become aware of other people who knew appellant. (2 RT 1273.) In sum,it is utter speculation that if appellant had not provided law enforcement with information about the Billingsleys and Sue Burlingame, they would nevertheless have identified and interviewed those witnesses. The testimony of Greg Billingsley, Stacey Billingsley and Sue Burlingame was not admissible underthe inevitable discovery doctrine. E. The Unconstitutional Admission of Appellant’s Statement Was Prejudicial The erroneousfailure to suppress a defendant’s confession or admission is reversible error unless the prosecution can show that the admission of the defendant’s statement is harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 306-312; Chapman v. California (1967) 386 U.S. 18, 23; People v. Cahill (1993) 5 Cal.4th 478, 509-510.) Under Chapman,the question is “not whether there was sufficient evidence on whichthe petitioner could have been convicted without the evidence complained of. The question is whetherthere is a reasonable possibility that the evidence complained of-might have contributed to the conviction.” (Fahy v. Connecticut (1963) 375 U.S. 85, 87.) Put another way, the court must look to “the basis on which the jury actually rested its verdict. [Citation.] The inquiry . . . is not whether, in a trial that occurred without the error, a guilty verdict would surely have been 96 rendered, but whether the guilty verdict actually renderedin this trial was surely unattributable to the error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Although the prosecution did not introduce appellant’s statement in its case-in-chief, there can be no doubtthat it contributed to the jury’s verdict, particularly in light ofits last-minute admission. Given that the constitutionality of the statement had been litigated before opening statements, the prosecutor’s decision to save the evidence until rebuttal was unquestionably strategic. Although his reasons for adopting that strategy are unknown,his timing suggests two possibilities: He may have been concerned aboutthe lawfulnessofthe statement and risking reversal on appeal by introducingit, but after hearing the defense case, he may have worried that the jury was entertaining doubts of appellant’s guilt and therefore used it in spite of the risk. Alternatively, he may have planned from thestart of trial to hold the statement until the end of his rebuttal, in order to maximize the statement’s dramatic effect. To appreciate the importance of appellant’s Miranda-violative statements to the prosecution’s ability to secure convictions in this case, one need look no further than the prosecutor’s closing argument, which made repeated references to appellant’s statement that the blood on the shirt came from a shaving injury (see, e.g., 22 RT 7331, 7333-7334, 7376, 7572), appellant’s admission that the clothes in evidence werehis(see, e.g., 22 RT 7331; 23 RT 7572, 7573, 7602) and his admission that he was at The Office at 8:55 p.m. on the nightofthe killings (see, e.g., 22 RT 7308, 7309, 7318- 7319, 7375; 23 RT 7600). Thosethree portions of appellant’s statement wereon thelist of the key pieces of evidence which the prosecutor argued 97 established appellant’s guilt. (22 RT 7318, 7331.)°° Without appellant’s unlawfully obtained post-arrest statement and the testimony obtained as a result of that statement, the evidence of appellant’s guilt was marked by significant gaps and inconsistencies. The prosecution’s star witness, Mary Webster, told a dramatic tale — that on the night of the murders, appellant appeared at her homewith the gun used in those crimes, wearing the bloodstained shirt and boots that were in evidence, and saying that he had shot two men over a poker game. The prosecution presented extensive testimony concerming appellant’s bad character, including evidence that he was a robber who hadstated a willingnessto kill in order to avoid returning to prison. As appellant shows elsewhere in this pleading, much ofthat evidence was inadmissible. (See Arguments II, III and IV, infra.) Further, upon close inspection, the evidence actually connecting appellant to the crimes was,in fact, quite problematic. 1. There Was Room for Doubt That Appellant Was Wearing the Bloodstained Shirt and Boots on the Night of the Murders The central factual issue in dispute in the case wasthe identity of the *° During closing argument, the prosecutor showedthe jury list that was apparently entitled, “How Many Different Ways Can We Provethe Defendant is Guilty?” (22 RT 7318.) That list was not marked or retained by the court as an exhibit, and subsequent attemptsto settle the record on appeal for its content were unsuccessful. (27 RT 8543; 30 Aug CT 8283.) However, many of the items on the list can be gleaned from the reporter’s transcript of the prosecutor’s argument. (See, e.g., 22 RT 7318 [first item wasthat defendant told Reed and Edwards he wasat The Office until 8:55 p.m. on the night of the murders], 7331 [sixth item was defendant’s statementthat the clothes and boots werehis; seventh item was defendant’s falsehood that the blood on the clothes and the boots was from shaving].) 98 killer. One of the most critical questions was whether on the night of the _ killings appellant was wearing the bloodstained shirt and boots that Webster had given to law enforcement the day after the killings.”! The bloodstained shirt was a short-sleeved, buttoned-down, dark-pink-and-black striped shirt with a collar. (See 25 Aug CT 7292-7297 [Exhibits EE-1 through EE-6 (photos of shirt)].) The bloodstained boots were tan suede with a rough textured appearance. (See 25 Aug CT 7253-7256 [Exhibits DD-1 through DD-4(photos of boots).]) The evidence regarding whether appellant was wearing those items on the night of June 20, 1993, was shaky atbest. Although Tracy Grimestestifiedon direct examination that appellant was wearing a sport shirt and “roughed up” grayish-brown cowboy boots resembling those that Webster had turned in to the police (1 1 RT 4167, 4176-4178), before trial, Grimes told defense investigator Tony Gane that appellant was wearing a pale solid-colored Levi’s shirt (20 RT 6896-6897). Hetold both the sheriff's department and Gane that the boots were gray, not grayish-brown,and until trial, mentioned nothing aboutthe boots being “roughed up”or “roughed out.” (20 RT 6896.) Although Sue Burlingametestified that on the afternoon of the killings, appellant was wearing Levi’s, a short-sleeved, buttoned-up shirt that looked like the bloodstained shirt and boots that lookedlike the bloodstained boots (13 RT 4641, 4647-4648), she told investigator Gane that appellant was wearing a tan, brown and blue western-style long-sleeved shirt, black jeans dnd brown cowboyboots that day (21 RT 7015-7016). Although she told officers appellant had been wearing a light maroon, *| Theshirt itself was entered into evidence as Exhibit 54-A,the left boot as Exhibit 46-A and the right boot as Exhibit 46-B. (Exhibit Index,p. 75.) 99 short-sleeved shirt, button-front, blue jeans, tan leather boots with a rough- out style (17 RT 5879), she told Gane she had been confused at the time of that statement. (21 RT 7013.)” Jerri Baker, with whom appellant wasliving at the time of the crime, testified at trial that the blood-stained shirt in evidence wasthe shirt appellant was wearing on the afternoon of the killings.”3 (18 RT 6088- 6089, 6295.) However, priorto trial, she had said she did not know what color shirt appellant was wearing when he left homethat day. (18 RT 6198- 6199.) When confronted at trial with this inconsistency, Baker claimed that she had lied whensheinitially spoke to the detectives. (18 RT 6276.) However,it was at least as likely that her initial statement was more accurate than hertrial testimony, as in the interim, she had found out that appellant had been seeing other women including Sue Burlingame,the women with whom he wentto The Office on the day of the crime. (18 RT 6146.) Of course, Mary Webster claimed that on the night of the killings, appellant came to her house wearing the bloodstained shirt that was in evidence. (14 RT 5007.) That testimony was directly contradicted by Webster’s brother, Stephen Langford, the other person present at Webster’s house that night. Langford testified that when appellant camein, he was wearing a yellow nylon shirt that had “something plastered all over” it. (20 RT 6699.) Langford told investigator Gane that appellant was wearing a yellow shirt, white pants and brown cowboyboots. (21 RT 7042.) 2 At trial, she claimed she had been confused when shetalked with Gane. (13 RT 4730.) 23 When he came homeat around 11:00 or 11:30 p.m.that night, she did not see how he wasdressed. (18 RT 6281.) 100 Moreover, Langford consistently stated that he did not see anything that looked like blood on appellant. (20 RT 6706, 6953.) Addingto the uncertainty of whether appellant was wearing the bloodstained shirt on the night of the killings was evidence that appellant owned more than one pink striped shirt. (13 RT 4742 [discussing Exhibit T]; 18 RT 6279 [discussing Exhibits CC and I].) Further, criminalist Peter Barnett testified that some of the bloodstains on the shirt could not have been attributable to the shooting itself. (19 RT 6487-6493, 6503-6505.) Neitherthe large bloodstain on the back northeone on the sleeve could be explained by the theory that the shooter was wearing the shirt at the time of the killings. (19 RT 6491.) Similarly, the_stain on the right boot would not have resulted from the shooting itself. (19 RT 6495.) Barnett opined that some ofthese stains had to have been contact stains and sometransfer stains. (19 RT 6618, 6645, 6654-6655; 20 RT 6674.) In his opinion,it was possible someone took the shirt and boots and deliberately put blood on them from the scene. (19 RT 6507.) Thus, apart from appellant’s Miranda-violative statement, the evidence concerning whether appellant was wearing the bloodstained shirt and boots in evidence on the night ofthe killings was conflicting at best. Appellant’s obvious facetiousness in stating that the blood had gotten on the shirt when he cut himself shaving, as wellas the follow-up statement that the reason he had no marks on his face wasthat he healed quickly, were in all likelihood viewed by the jury as implied admissionsthat he hadin fact been wearing the shirt on the night in question. Appellant’s statement was undoubtedly viewed as resolving the evidentiary conflict on the critical question ofthe relationship between the bloody clothes andthe killings. 101 2. Apart from Appellant’s Statement, There Was Room for Doubt That Appellant Wasat The Office Near the Time of the Murders Appellant’s unlawfully-obtained statement also filled an evidentiary gap in that it placed him at The Office until 8:55 p.m. on the night of the killings. Apart from appellant’s statement, Tracy Grimes provided the only direct evidence that appellant had gone back to The Office on the night of the crimeafter leaving there with Burlingameearlier in the day. Without appellant’s statement as corroboration, Grimes’s credibility was questionable. Law enforcement had never shown him a lineup or even a single photograph of appellant; the first time Grimes saw appellant’s photograph was whenit appeared on the front page of the newspaper,in an article identifying appellant as the suspectin the killings. (11 RT 4181, 4208; 20 RT 6920.) Grimeshad also been told that blood had been found on appellant’s hands, clothes and boots (20 RT 6904), which Grimesclearly viewedas proof that appellant was the killer. Grimes displayed animosity toward appellant. (20 RT 6898.) He wasso sure appellant was the shooter that he plannedto exact justice himself if appellant were not convicted. (20 RT 6901.) Grimes’s bias was palpable, and his credibility was diminished accordingly. Appellant’s statement that he had been at The Office on the night in question until 8:55 p.m. provided the prosecution with corroboration of Grimes’s testimony. It removed any doubt that appellant had beenat the scene of the crime well into the window of time between Grimes’s departure at 8:40 p.m., when Manuel and Tudorwerealive, and 9:20 p.m., when Leslie Lormandiscovered their dead bodies in the 102 women’s bathroom. (12 RT 4301-4307, 4319.) The admission of appellant’s statement that he was driving Jerri Baker’s car on the night of the killings also bolstered the prosecution’s argument that Anita Dickinson had seen Baker’s Probe behind The Office at the time of the shooting. Dickinson’s description of the car she saw did not match the appearanceof the Probe. Although shetestified that she heard gunshots coming from The Office between 7:30 p.m. and 8:45 p.m. (11 RT 4248, 4258), on the nightof the killings, she told Deputy Sheriff Elizabeth Sawyer that she had heard gunshots at 9:15 p.m or 9:30 p.m. (21 RT 7139.) Dickinsontestified that when she head the shots, she saw a small grey compactcar in the parking lot. (12 RT 4266.) However, on the night of the crime, Dickinson told Sawyer that she did not notice any other cars in the parking lot besides the bartenders’ cars. (21 RT 7141.) Dickinson’s husband, Randy Pickens,also testified that after learning about the gunshots, he did not see any cars in the parking lot except for those of the bartenders. He remembered a grey mid-sized compactcar leaving the parking lot at 8:00 or 8:30 p.m. (21 RT 7143.) Pickens’s statement contradicted his wife’s and suggested that if appellant was driving a car matching the one Pickens described, he left the bar before the shooting. (21 RT 7255.) Appellant’s statement that he was driving Baker’s Ford Probe and that he was at The Office until 8:55 p.m. thusfilled a significant gap in the prosecution’s evidence and undercut the defense theory that Webster ** Moreover, Anita Dickinsontestified that she had heard gunshots coming from The Office between 7:30 p.m. and 8:45 p.m. (11 RT 4248, 4258.) Ifthe jury believed Dickinson wascorrect regarding the timing of the shooting, appellant’s statement that he was there until 8:55 p.m. placed him at the scene of the crimeat the time of the shootings. 103 and/or Langford committed the crime. The testimony of Sue Burlingame, evidence which was derivative of appellant’s unlawful interrogation, also contributed greatly to the prejudice flowing from the illegality. Without Sue Burlingame’s testimony, Grimes wasthe only witness who placed appellant at The Office on the day of the killings. Sue Burlingame’s testimony established both that appellant had gone to The Office with her on the day of the charged offense andthat he had taken her there once before. (13 RT 4641-4645.) Her testimony therefore provided a link between appellant and the crime scene and a basis for the prosecution to argue that when appellant and Burlingameleft The Office on the day of the killings, the bar was empty and appellant saw an opportunity to go back and rob the place. (22 RT 7303.) Further, Burlingametestified that on the afternoon of the killings, appellant was wearing the shirt and boots that, stained with blood, Webster later turned into the police. (13 RT 4647-4648.) Although Jerri Bakeralso stated that appellant was wearing that shirt on the day of the killings-(18 RT 6088- 6089), Burlingame had seen him later in the day than Baker and Baker’s credibility was assailable in a way that Burlingame’s was net. Baker had initially said that she did not know what appellant was wearing that afternoon. (18 RT 6276-6277.) It was only after she had read the police reports which described the shirt that Webster had provided law enforcement and revealed that appellant had been seeing other women (including Webster and Burlingame) that Baker started saying that she knew that appellant had been wearingthat shirt on the day in question. (18 RT 6274-6275.) Baker’s bias, motive and opportunity to lie were evident. 104 3. There Was Room for Doubt That the Gun WasAppellant’s and Wasin His Possession on the Night of the Murders Without the evidence obtained as a result of appellant’s unlawful interrogation, the evidence linking appellant to the gun in evidence was weak. Apart from the testimony of the Billingsleys and Sue Burlingame, the prosecution witnesses whoidentified the gun as appellant’s were of questionable credibility. Jerri Baker did so (18 RT 6080), but she had previously told police she had never seen appellant with a gun. (18 RT 6296.) Although she claimedthat she intentionally lied to the police (18 RT 6296), the jury reasonably could have concluded that she hadtold the truth initially and that the changesin her version of events were fabrications. As stated above, in the interim, she had found out about appellant’s infidelity and the relationship had ended. Billy Joe Gentry also claimed that he was able to identify the gun in evidence as that which appellant had shown him in September of 1992. (17 RT 5832, 5854.) However,his credibility was open to serious question: he purportedly had seen the gun for less than a minute nearly four years before trial and had consumed 80 ouncesofmalt liquor at the time. (17 RT 5834-5836, 5844.) The testimony of Stacey and Greg Billingsley, whose identities appellant revealed during the interrogation, corroborated Burlingame’s testimony, also obtained a result of the interrogation, that appellant had stayed at their house the weekendbefore the killings and that Burlingame had found a gun under the couch after appellant left. (12 RT 4505, 4510; °° Nevertheless, he claimed he was not drunk at that time. (17 RT 5835.) 105 13 RT 4570.) Greg Billingsley identified the gun in evidence as the one Burlingame had found under the couch (13 RT 4572-4573); he testified that the gun was appellant’s and that he had returnedit to appellant a few days later, which was a few days before the robbery-murders. (13 RT 4566- 4567, 23 RT 4575.) Greg Billingsley had seen the gun on multiple occasions, including a few days beforethe killings. His testimony identifying the gun as appellant’s was far more credible than the other witnesses’. In addition to establishing that the gun in evidence wasappellant’s, the testimony of Burlingame and the Billingsleys was crucial becauseit put the gunin appellant’s possession shortly before the killings. The only other witnesses whotestified that the gun in evidence wasin appellant’s possession at the time of the killings were Webster and Langford, who both claimed that appellant brought the gun to Webster’s house on the night of the killings.”’ As set forth more fully below,their testimony was conflicting and their credibility questionable. Burlingame’s and the Billingsleys’ credibility was not comparably assailable. Their testimony, if believed, established not only that the gun was appellant’s, but also that it was in *° At trial, Burlingame lookedat the gun that was in evidence and described it as dark metal with brown grips (13 RT 4739-4740), whereas she had told police that the gun she found under the couch wassilver, with a triangle just below the hammer (17 RT 5877-5878), and she had told investigator Gane that the gun she had found wasshiny and chrome. (21 RT 7022.) ?” Bakertestifiedthat she thought she rememberedseeing the box in the trunk of the car, but she had previously admitted that she did not remember whether it was there that day. (18 RT 6253.) Also, even if the box was there, she did not look in it to see if the gun wasinside. (18 RT 6255.) 106 appellant’s possession a few days before thekillings. ** Apart from appellant’s unlawful statement and the testimony obtained as a result of that statement, the prosecution failed to present reliable evidence that the gun in evidence wasin appellant’s possession on the nightof the killings. The only two witnesses whoclaimedto have seen appellant in possession of a gun on the night in question were Mary Webster and herbrother, Steve Langford.” Webster’s description of the gun that she claimed appellant brought to her house on the night of the killings didnot match the gun in evidence. When Webster called detective Ford on the morning after the killings, she said that the gun appellant had with him when he cameto her housethe previous night was a .45 caliber semi-automatic silver-colored gun. (14 RT 5108, 5128.) The gun seized from Webster’s house was a semi-automatic, but was black with brown grips. (15 RT 5235;16 RT 5568.)*° Webster told Sacramento Police Officer Dennis Biederman that the gun appellant had brought to her house °8 Another highly prejudicial aspect of the evidence derivative of the illegal interrogation was Greg Billingsley’s testimony that appellant had twice asked him if he wanted to help rob the bowling alley. (17 RT 6020- 6025.) As argued below,this evidence also was inadmissible as other crimes evidence, the prejudicial effect ofwhich is widely recognized. (See ArgumentII, infra.) °° As stated above, Bakertestified that she thought the gun wasin the trunk ofher car that afternoon when she went shopping, but she admitted telling the prosecutor that she could not rememberif that was the case. (18 RT 6253.) 3° Prosecution criminalist Gerald Arase indicated that there were spots on the gun that were worn and moresilver in color, but said he would not describe the gun as “chrome”or “silver;” it was black. (16 RT 5568- 5569.) 107 was a .45 caliber revolver, with four empty shells in the chamber. (15 RT 5227, 5229-5230, 5236-5237.)°' The gun in evidence was a semi- automatic, not a revolver, and when a semi-automatic is fired, no shell is left in the clip. (15 RT 5235-5238.) Websteralso testified that on the night ofthe killings, appellant unloaded four bullets from the gun. (17 RT 5912.) Priorto trial, Webster had told District Attorney investigator Larry Carli that four shells were missing from the magazine. (21 RT 7099.)* In either case, Webster’s description could not be reconciled with the theory that the gun she described wasthe one that was in evidence, which prosecution criminalist Gerald Arase testified was the one that was used to kill Manuel and Tudor. (16 RT 5553-5564.) The gun in evidence normally held seven bullets, but it waspossible to load it with eight. (16 RT 5570, 5606.) Five rounds had been fired at The Office: Manuel and Tudor had each been shot twice (12 RT 4409, 4438); one additional slug was found on the floor behind the bar, near the cash register. (10 RT 3888.) If the gun had been loaded nermally and five rounds were then fired from it, there would have been two bullets left in the gun. Even if the gun had been loaded with eight bullets, there would have beenthree, not four, rounds left after the offense. Thus, in addition to being wildly inconsistent with each other, Webster’s >! Webster claimed that she was not familiar with guns, but ultimately admitted that Miller, the elderly mar-whom she had bilked out of several thousand dollars, had bought her a gun. (17 RT 5942.) Webster also admitted that her husband had bought her an automatic. (15 RT 5217.) She claimed that when her husband died, she-gave both gunsto her brother, Steve Langford. (17 RT 5948.) °° She told detectives that appellant said hehad fired sevento nine shots. (20 RT 6979.) 108 descriptions of the gun she claimed appellant broughtto her house on the night of the killings suggest that if appellant, in fact, brought a gun to her house on the night of the killings, it was not the gun used to kill Manuel and Tudor. An alternative explanation and the defense theory was that Webster concocted the story about appellant coming to her house on the night of the killings, and it was really she and/or her brother who committed the robbery-murders. Steven Langford, Webster’s brother, also testified that on the night of the killings, appellant came to Webster’s house with a gun. Langford’s "description of the gun matched the one in evidence moreclosely than Webster’s. (20 RT 6727-6728.) However, Langford’s credibility wasat least as questionable as Webster’s, as he admitted having reviewed notes that his sister had made of her version of the events of that night and altering his version of events to match hers. (20 RT 6738.) Furthermore, he claimed that the gun was warm to the touch. (20 RT 6704.) Given the amount of time that it would have taken to get to Webster’s house from The Office and the events that Webster and Langford claimed happened between the time appellant arrived and the time the gun wasretrieved from the car, that weapon would have cooled well before Langford and Webster saw it. (18 RT 6353; 19 RT 6419.) Langford’s testimony in this regard cast further doubt on the credibility of his testimony as a whole. Thus, without the unlawfully-obtained evidence, the prosecution’s proofthat appellant was in possession of the murder weapononthe night of the crimes wasnotsolid, but rather was open to serious question. The jury reasonably could have believed that it was as least as likely that the gun had been used by Webster or Langford to commit the crimes as by appellant. The gun was found at Webster’s house less than 24 hoursafter the killings. 109 (18 RT 6336.) While Webster readily handed over the bloodstained shirt and boots to law enforcement, she wasreluctant to provide authorities with the gun she claimed appellant used to commit the murders. (21 RT 7000.) Webster’s fingerprints were the only ones found on the gun and on the box wherethe gun was stored. (15 RT 5377, 5379-5380.) Although a number of latent prints were lifted from the gun and the box, none matched appellant’s. (15 RT 5338, 5340, 5358, 5360, 5379-5380.) Thus, even ifthe gun was appellant’s, there was noreliable evidence that he had it on the night of the killings. 4. The Physical Evidence Did Not Match the Prosecutor’s Theory of the Crime The physical evidencealso left room for doubt about the prosecution’s case in several other respects: no blood was foundin the car where one would expect it to be; several other possible sources were shown for the minuscule amount of blood that was found in the car; and the pattern of bloodstains on the shirt was inconsistent with the prosecution’s theory of the crime. The boots and shirt that Webster had turnedin to police were heavily stained with blood. The stains on the back ofthe shirt ran from the shoulderto the tail. (16 RT 5509-5510.) There wasalso a large stain on the left sleeve. (16 RT 5510.) The right boot had bloodstainsin five areas, including the toe, sole and inner arch. (16 RT 5480, 5519.) Mary Hansen, supervising criminalist of the Sacramento County crime laboratory’s serology unit, admitted that if a car had been driven by a person wearing that shirt when the blood was wet, there would have been a transfer of blood onto the seat. (16 RT 5509.) Hansen thoroughly inspected Baker’s grey Ford Probe, including the driver’s seat, the seat belt, the seat 110 adjustment handle, the gas pedal, the exterior door handle, the rear view mirror, the hand break,all the knobs associated with the dash, door and glove box, the passenger’s side generally and specifically the floor on both the driver’s and passenger’s sides. (15 RT 5448-5449.) All of these areas tested negative for blood. (15 RT 5459.) Hansen did presumptive testing of stains on the interior driver’s side door, the handle of the glove box, and the floor on both the passenger and driver’s side, all of which showed no presence of blood. (15 RT 5461.) Hansen ran a swaboverthe entire surface of the driver’s pedals, and tested it for the presence of blood; again the result was negative. (16 RT 5506.) In conducting presumptive testing for blood, the only positive results that Hansen obtained wereon the gear shift knob and the lowerleft portion ofthe steering wheel. (15 RT 5451, 5457-5458.) She determined that both were human blood, but the quantities were too small to do additional testing, e.g., for ABO or enzyme type. (15 RT 5455, 5458.) There was - enough blood that DNA testing could have been conducted, but Hansen’s lab was not equipped to do so, and the blood wasnotsent to a lab that was. (16 RT 5514, 5519.) Hansen was not able to determine how much blood had been present on the knob, how longit had been there or whose bloodit was; she was able to determine only that it was human. (16 RT 5515.) In this way, the prosecution failed to establish that the small amount of blood found in Baker’s car came from either Manuel or Tudor. The absence of blood on the seat, floor, pedals and driver’s side door wasinconsistent with the theory that the shooter drove Baker’s car immediately after the killings. The minuscule amount of blood on the gear shift knob and steering wheel — blood which could have been on those surfaces for days or weeks before the killings — could as easily have been 111 deposited by one of the many other people who had accessto the car as by appellant on the night of the killings. In addition to Baker herself and appellant, Baker’s sister, brother-in-law and nephew all drove the car. (21 RT 7146.) Moreover, the blood most likely was not deposited by the shooter’s hands, as there was no evidence of blood on any door knobsat The Office or on the door handles ofthe car.*® The evidence conflicted as to whether the car had been cleaned before Hansen examinedit. Bakertestified that between June 20, the night of the killings, and June 23, 1996, when Hansen inspected the car, she had not removed any items or stains from the car. (18 RT 6204.) Later, she contradicted herself and testified that the morning after the charged offense, she drove the car to work and cleaned it. (18 RT 6263.)** Evenifthat were true, she admitted that she had not cleaned the seats or cushions. (18 RT 6266.) She claimed that she had cleaned the area around the driver’s seat with a solution of ammonia and soap,that it was her belief that this solution 3 Bakertestified that she saw what appearedto be flesh or brain matter on the driver’s side door of her car and cleaned it off before she got in the car the day after the killings. (18 RT 6096.) That testimony could only have been fabricated for dramatic affect, as it was contradicted by Webster’s testimony that when appellant arrived at her houseafter the shootings, she got in the driver’s seat of Baker’s car and did not see any blood or anything else out of the ordinary. (15 RT 5194; 16 RT 5668- 5669.) Further, Baker’s first mention of seeing brain matter was in February of 1996, almost three years after the crimes. (18 RT 6268.) Further, defense expert Peter Barnett testified that he would not expect that the shooter would have had tissue on him from the act of shooting in this case, and that he did not see any indication that there was tissue of any kind in the bathroom at the crime scene. (19 RT 6510, 6661.) * Thefirst time that she had ever claimed she had wiped down the car was on December27, 1994, a year and a half after the killings. (18 RT — 6230.) 112 turned green when it came in contact with blood, and that the rag she used to clean the inside of the car turned green. (18 RT 6096.) Defense expert Peter Barnett conducted an experiment in which he wiped up human blood with a rag soaked in household ammonia. Refuting the validity of Baker’s hypothesis, the rag turned reddish-brown, not green. (19 RT 6511-6512.) Thus, even if Baker did wipe downhercaras she claimed, it was entirely unclear what substance she removedin so doing. The prosecution was unable to show that the pattern of blood stains on the shirt was consistent with its theory of the crime. Prosecution pathologist Gregory Reiber admitted that someofthe large bloodstains on the shirt could not have been produced by “blowback” from the gunshots. (12 RT 4435, 4477.) The prosecution presented no other evidenceto explain how the stains could have been deposited on the shirt. Defense expert Peter Barnett agreed that the shooting itself would not have produced. the large stains on the shirt or indeed someofthe stains on the boots; he opined that at least some of them were contact transfer stains, indicating that the shirt had come in contact with a bloody object. (19 RT 6490-6501.) Barnett opined that the bloodstains on the shirt and boots could not have resulted from the shootingitself, but could have been deliberately placed on those items. (19 RT 6506.) Asstated above, the prosecution’s failure to explain this gap in its evidence provided one more groundfor reasonable doubt about its entire theory that appellant committed the murders. Similarly, the prosecution failed to connect the bloody footprints at the scene of the crime (12 RT 4360, 4383) to appellant or his boots. Although Hanseninspected the boots carefully, she found no evidence of blood on the bottom ofthe sole of either boot. (16 RT 5521.) Officers responding to the crime found bloody footprints inside The Office (12 RT 113 Peaechaint 4359-4361), but Joseph Lorman,the civilian witness who found the bodies, did not notice any such prints at the scene, which suggests that the officers or other parties responding to the crime scene may have been responsible for making them. (12 RT 4325.) The absence offingerprint evidence connecting appellant to the crime was also inconsistent with appellant’s guilt. Only one latent fingerprint lifted from the crime scene matched any known fingerprints, and that one matched Manuel’s. (15 RT 5374.) There was no evidence that appellant wore gloves or Nu-skin on his hands onthe nightofthe killings. He reportedly told Webster that he left his fingerprints at the scene. (14 RT 5016.) Appellant’s fingerprints were not found on the gun or the box containing the gun; only Webster’s were. The evidence did not show that any bloodstains had been found in Webster’s or Baker’s home, and there was no evidenceofblood or fingerprints on the money that Webster turned over to the police.*° Furthermore, the money that appellant reportedly had after the killings was inconsistent with the prosecution’s theory that he took the money that was missing from the bar. Webstertestified at the preliminary hearing that when appellant cameto her housethat night, he gave her $100. (14 RT 5037.) At trial, she stated she had lied and that he had actually given her $125. (14 RT 5004.) Shealsotestified that he gave her an additional $18 to buy bourbon, Coca Cola and cigarettes. (15 RT 5185.) 5 Defense expert Barnett testified that latent fingerprints could have been lifted from the money which Webster claimed to have received from appellant on the night of the killings. (19 RT 6507-6508.) The evidence did not indicate whether any attempt had been made to conductthis type of analysis, but certainly, if appellant’s fingerprints had been found, the prosecution would have presented that evidence. 114 She stated that appellant left her house at about 11:00 p.m. (15 RT 5208.) Bakertestified that appellant came homeat around 11:00 or 11:30 p-m., presumably directlyafter leaving Webster’s house, which wasten or 15 minutes away. (18 RT 6089.) Bakertestified that after appellant had gone to bed that night, she went through his pockets and found $40. (20 RT 6944.) She had apparently previously told the prosecutor a few months before trial that appellant had $40 when heleft home that afternoon, and that he “still had the forty bucks” when he got homethat night. (18 RT 6241.) Even if appellant had $40 more when he got homethan he had when he left, and even if he gave Webster $143, the total would have been $183, not even close to the $320 that was missing from the cash register at The Office. (13 RT 4774.) The prosecution did not account for the difference. 5. The Evidence of Motive Pointed as Strongly Toward Webster as it Did Toward Appellant The evidence showed that appellant was gainfully employed and earning approximately $1300 per month. (18 RT 6148.) Bakertestified that appellant would have been paid in cash if he worked on Saturday, the day before the crime. (18 RT 6226-6227.) On June 18", two days before the killings, appellant had withdrawn $420.53 from his account at the Capital Power Federal Credit Union. (20 RT 6779.) Thus, there were reasons consistent with innocence for appellant having cash in hand andhis having cash seriously undercut the theory that appellant committed the robbery-murders because he wasin need of money.*° °° Even if appellant were strapped for money and was inclined to steal, the evidence showed that in his wallet, he had the combinationto his employer’s safe (21 RT 7260), which on weekends generally contained (continued...) 115 The prosecutor argued that appellant’s motive wasthe “thrill,” the “rush,” and the feeling of “power” that the prosecutor claimed appellant got from committing robbery. (22 RT 7374.) This theory was based exclusively on Jerri Baker’s claim that a few monthsbefore the killings, appellant told her he felt an urge to commit robberies. (17 RT 6103.) Adding dramaticflair to this testimony, Baker opined that appellant had an “irresistible impulse” to commit robbery (17 RT 6104) and that committing robberies made appellant feel powerful (17 RT 6306). However, whether appellant actually made the statements that she attributed to him washighly questionable. Indeed, she admitted that she could not rememberexactly whathe had said (11 RT 4000, 4012), and her spin on the precise verbiage used was different each time she repeated it. (See, e.g., 11 RT 3980; 18RT 6103-6104.) Moreover, like several other critical changes in her version of events, the first time she mentioned anything about this purported conversation was after she had read the police reports from the investigation of the homicides and found out that while living with her, appellant had been seeing other women. (17 RT 6242-6147, 6255.) There was substantial basis for the jury to discount Baker’s testimony. There also was evidence of another conversation Baker admitted having with appellant in which he told her that Webster had been pressuring him to commit robberies so Webster could get more money. (17 RT 6318.) Baker gave the detectives two wigs and said Webster had given them to appellant after he had moved in with her and asked him to start committing *° (...continued) $250 or $300. (18 RT 6228; 20 RT 6765.) The fact that appellant could have easily taken the moneyin the safe but did not do so undercutthe prosecution’s theory that he had a financial motive to commit the robbery. 116 robberies because she needed the money. (18 RT 6109, 6205.) Indeed, there was ample evidence that Webster needed and desired money far more than appellant. Unlike appellant, Webster had money problems. She had intentionally under-reported her income and had been receiving Social Security benefits to which she wasnot entitled. (14 RT 5156-5157.) Although she had been told by Social Security that the checks were overpayments, Webster had spent the money anyway. (16 RT 5621.) At the time ofthe killings, Social Security was demandingthe return ofthat money. (16 RT 5621.) Webster had a far stronger motive for committing the crime than appellant. 6. Mary Webster and Jerri Baker Lacked Credibility Mary Webster, one of the prosecution’s most important witnesses, lacked credibility generally. She was a known thief, having extorted thousandsof dollars from Clyde Miller, an elderly man with Alzheimer’s disease. (14 RT 5079-5104; 19 RT 6564.) She was jealous and angry at appellant for having left her. (15 RT 5268.) She idolized appellant for his prowessas a robber and had reportedly encouraged him to commit robberies because she needed money. (18 RT 6205.) By her own admission, she lied to law enforcement about how much moneyappellant had given to her on the night of the charged offense and under oath on the witness stand at the preliminary hearing. (16 RT 5672-5673.) In light of ‘these facts, all of Webster’s testimony was suspect. Furthermore, Webster’s testimony was internally inconsistent and contradicted by other witnesses. For example, despite the amount of blood found on the shirt appellant allegedly wore, Webstertestified at trial that when appellant entered her house on thenight ofthe killings, he probably 117 walked up to her and gave her a kiss and even so, she did not notice anything unusual about his appearance. (14 RT 5004.) It was only after she walked into her bedroom that she noticed blood on his shirt. (14 RT 5172- 5173.) She similarly testified inconsistently about the blood she saw on appellant’s body. At the preliminary hearing, she hadtestified that she noticed blood on appellant’s clothes earlier, when he came through the dining room. (1 CT 103.) Attrial, she claimed that appellant’s arms were “layered with blood” from just below the elbow to the tips of his fingers. (15 RT 5178.) However, although she said that he took some moneyout of his pants and handed her somebills before he washed (15 RT 5179-5181), she also testified that she did not actually see any blood on his arms or hands; she only saw blood around the sink when hefinished washing. (15 RT 5178.) Webstertestified inconsistently about other facts concerning appellant’s visit to her house on the night of the crimes such as: whether appellant knocked before entering her house on the night of the crimes (14 RT 5003; 15 RT 5167), whether he kissed her upon entering (15 RT 5166, 5171), whether appellant was wearing a t-shirt (14 RT 5015-5016; 15 RT 5164), whether appellant left her house in socks or barefoot (14 RT 5015; 1 CT 96 ), and whether appellant left wearing his Levi’s or whether Webster had them (14 RT 5109-5110; 15 RT 5208, 5215-5216). Webster credibility was highly suspect and alsocritical to the prosecution’s case. The inconsistencies in her testimony as well as her history of dishonesty left room for doubt concerning her version of events on the night of the murders and her denial that appellant wasreferring to drugs when he asked her on the day after the murders whether she had gotten rid of the “stuff.” (14 RT 5038.) The evidence was as consistent 118 with appellant’s contention that Webster was a scorned formerlover, bent on revenge (22 RT 7550-7551), as it was with the prosecution’s theory that she was appellant’s fearful “lap dog” (22 RT 7371, 7366). Webster was not the only important prosecution witness whose credibility was lacking. As stated above, Jerri Baker, another key witness for the prosecution, changedherversion of events radicaily after she read the police reports and found out that appellant had been seeing other women. (18 RT 6146.) In March of 1994, she told law enforcement for the first time that she would corroborate virtually everything that Webster had said. (18 RT 6209.) She stated that appellant told heralso that he had shot two black men over a poker gamein Del Paso Heights. (18 RT 6092.) Baker’s statements in 1994 contradicted those that she had made in 1993. Moreover, after Baker gave some new and contradicting statements to detective Reed on March 22, 1994, she provided even more new material on December28, 1994, when she spoketo District Attorney investigator Carli. (18 RT 6314.) Regardless of the reason for the changes, the inconsistencies between her various statements were so stark that at least some of them were necessarily false, and arguably none of them wasreliable. Thus, apart from the erroneously admitted evidence, the prosecution’s case was far from overwhelming and wasreplete with inconsistencies. The prosecutorfilled those gaps with evidence of appellant’s statement to law enforcement and the testimony obtained as a result. Any remaining room for doubt waseffectively obscured by the raft of evidence of appellant’s bad character and other crimes which thetrial court erroneously admitted. (See ArgumentsII, II and IV,infra.) Regardless of this Court’s view of appellant’s other claims oferror, appellant’s unlawfully obtained statement to law enforcement, presented at 119 the last possible moment and to maximum dramatic effect, as well as the testimony of Sue Burlingame, Stacey and Greg Billingsley, “might have contributed to the conviction.” (Fahy v. Connecticut, supra, 375 U.S.at p. 87.) It cannot be said that the verdict “was surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) The error was not harmless beyond a reasonable doubt. Reversal is required. // // 120 Il THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING MINIMALLY PROBATIVE BUT EXTREMELY PREJUDICIAL EVIDENCE OF APPELLANT’S BAD CHARACTER AND MARY WEBSTER’S TAPED INTERVIEW FOR THE SOLE PURPOSE OF SUPPORTING WEBSTER’S CREDIBILITY Recognizing the critical importance ofMary Webster’s testimony to the prosecution’s case, the trial court allowed the prosecution to present a deluge of inflammatory, prejudicial and otherwise inadmissible evidence of appellant’s past crimes and acts of violence, based on a wisp of relevance to Webster’s credibility. Webster’s feelings for appellant were undisputed and established by other evidence, but in the guise of establishing whyshefelt as she did, the court allowed the prosecutor to put before the jury evidence that appellant had assaulted Webster’s son, fought with her roommate, told her he was an ex-convict and a bank robber and admitted killing people in the past, as well as evidence oftheinvestigating officers’ emphatic assertions of appellant’s guilt and dangerousness to Webster’s safety made in order to secure Webster’s cooperation. With no limitation on the use of the evidence that appellant had killed before and ineffective limiting instructions pertaining to the other evidence of appellant’s criminality, the jury certainly considered the evidence as an indication of criminal propensity. The court’s admission of the evidence was an abuse of discretion which tipped the scales toward conviction and rendered thetrial fundamentally unfair. (Evid. Code § 352; Cal. Const., art. I, §§ 7, 15, 17; U.S. Const., 14" Amend.) | 121 A. The Trial Court Admitted Evidence That Appellant Told Webster He Had Committed Robberies, Assaults and Homicidesin the Past, That Appellant had Assaulted Webster’s Son and Former Roommate and That the Detectives Told Webster Appellant was a Liar Who Had Committed the Charged Murders and was a Dangerto Webster’s Safety, As Relevant to Webster’s Credibility Priorto trial, defense counsel indicated to thetrial court that they intended to object to various aspects of Mary Webster’s testimony which revealed her knowledge of appellant’s past crimes. (10 RT 3872.) The prosecutor asked the defense to specify the evidence to which they would object. (10 RT 3876-3878.) Defense counselfiled a two-page motion seeking the exclusion of 24 categories of Webster’s expected testimony. (1 CT 460-461.) Orally, defense counsel stated that their objections were made on the groundthatthe evidenceat issue wasirrelevant and more prejudicial than probative pursuant to Evidence Codesection 352.°”7 (10 RT 3872; 11 RT 4091-4094, 4096-4099.) Thetrial court ruled on appellant’s objections to Webster’s testimony before any evidence had been presentedto the jury.** The prosecutor 37 Appellant had previously been granted an order that any objection based on state statutory grounds would automatically be deemed to be based on state and federal constitutional grounds as well. (2 CT 308-310; 1 RT 1018.) 8 The court had before it Webster’s testimony from the preliminary hearing (1 CT 79-116) and the unredacted tape of her interview with detectives on the day after the killings (23 Aug CT 6690-6740). That tape and a transcript of it had been introduced into evidence at the in limine hearing on the admissibility of appellant’s statement to law enforcement. (See 2 RT 1158, 1170-1171.) At the in limine hearing on appellant’s motion to exclude Webster’s testimony, the prosecutor also made various (continued...) 122 addressed each of appellant’s objections in turn, arguing generally that the evidence was relevant to Webster’s credibility, which appellant was expected to attack, and to establish the relationship between appellant and Webster. (10 RT 3872-3875; 11 RT 4076-4090.) In response to the prosecutor’s comments, defense counsel stated that the evidence was relevant only if the defense madeit relevant, and noted that a central focus of the prosecutor’s argument in favor of admission of the challenged evidence wasthat it was relevant to Webster’s fear of appellant. (11 RT 4091.) Defense counsel stated that they would not dispute that Webster feared appellant, and would not object to Webstertestifying that her fear wasbased onthe things that appellant had said to her about his background and what he had donein the past, in general. (11 RT 4097-4098.) They argued that the fact that Webster was afraid did not open the door to “every possible thing that could put Mr. Case in bad light.” (11 RT 4097.) Defense counsel argued that because appellant was not going to challenge the evidence that Webster wasafraid or the basis of that sentiment, evidence of appellant’s statements regarding past crimes was not admissible for the purpose of establishing Webster’s fear, and the probative value of such evidence was outweighedbyits prejudicial effect. (10 RT 3872; 11 RT 4091-4102, 4097-4098.) AS a preliminary matter, the trial court found that Webster wasafraid of appellant butstill loved him andthat this was relevant to why she did not immediately go to the police after appellant came to her house on the night 38 (...continued) oral representations to the court regarding the testimony that he expected Webster to provideattrial. The nature of his proffer as to each particular item of evidenceis set forth below. 123 of the killings. The testimony,as I recall is, is that well, he comes home and he’s got all of these clothes that are covered with blood and gives them to her to get rid of. And she doesn’t leave immediately or even the following morning whensheis on her way — is driving with this stuff in the back of her car. [{] She doesn’t go to someplace and call the police to tell them she’s -- it appears that she’s undecided about what she’s going to be doing with these clothes. She’s either goingto get rid of them or she’s going to turn them over. She’s not sure what she’s going to do. That’s based on twothings: [%]] Oneis she’s afraid of Mr. Case, and the other one is shestill loves him and doesn’t want to believe that he would do something like this, even when hehasall of these bloody clothes that he’s given her. He’stold her the story about how hekilled two menin the poker gameor the card game. (11 RT 4092.) The court found that Webster was impressed and intrigued with the appellant because of his past, which explained why she was initially willing to do as hesaid: He’s impressing her with what hesaysis his past, . . . whether it’s true or not, he’s telling her this. She’s believing it. She’s impressed by it and intrigued by it. And because of that, she does some ofthese other things. And whenthecritical moment arrives, when he hands her the bloody clothes and tells her to get rid of it and tells her how to dispose of the gun, the gun wasto be — the clothing wasto be disposed ofright away and the gun wasto be hidden and held for somebody else. That’s pretty much the way she was going about doing it. (11 RT 4093-4094.) The court found that appellant’s statements abouthis past also showed why Webster feared him, and her fear explained her indecision. about going to the police. Defense counsel objected that this rationale would lead to the introduction of “every possible thing that could put Mr. Case in a bad light.” (11 RT 4096.) The court responded: 124 Well, that’s the relevance of it. He wants to put himself in a bad light to Mary Webster becausethat’s good for him. And now that we’reat the trial, putting himself in a bad light with Mary Webster can be bad for him. Unfortunately, putting himself in a bad light with Mary Webster is what motivated her to do some ofthe things that she did. And it’s obvious from [the tape of Webster’s interview with law enforcement on June 21, 1993] that’s been admitted in evidenceof a previous in limine motion, she harbors a substantial and significant fear of the defendant in this case. And she was afraid that her own life would definitely be in danger unless she followedhis instructionsto the letter. (11 RT 4097.) After making these general findings, the court addressed each of the particular items of evidence which appellant had moved to suppress. The specific findings relevant to the evidence which appellant challenges here are set forth below. In addition to denying appellant’s pre-trial motion to suppress, during the guilt phaseitself, over appellant’s objection, the court admitted portions of Webster’s taped interview with Reed and Edwards in which the officers repeatedly stated that appellant was responsible for the killingsat The Office and why they knew that to be true. (18 RT, 6167-6191.) Those rulings are also set forth in greater detail below. 1. Evidence of Appellant’s Altercations with Greg Nivens and Randy Hobson : In his written motion, appellant objected to.any referenceto his attemptto kill three unnamed people (2 CT 460-461, item 17) or toa physical assault on Greg Nivens (2 CT 460-461, item 18). The prosecutor made the following representation to the court: Seventeen and eighteen relate, are tied together. Andthat is Mary Webster on one occasion, her son Greg Nivens, was doing something towardsher, not necessarily physical, but smarting off to her verbally or something. And Greg Nivens 125 is an adult who is developmentally disabled. At any rate, Greg Nivensdid or said something towards Mary. [4] The defendant got mad aboutthat and hit him in the face. And there was some- - I don’t know if it was a bloody nose as a result of that. I believe police may have been called, but the defendant did not get arrested at the time. And Mary Webster stood up for him at the time. [{] On another occasion,the defendantgot in a fight with and beat up a roommate who was a person who was a house maid [sic] of Mary Websterat the time, first name of Randy Hobson. [{]] And he, the defendant, hit Mr. Hobson with a fireplace poker in the course of that altercation. | (11 RT 4087-4088.) The prosecutor argued that appellant’s altercations with Nivens and Hobson were admissible to show Webster’s knowledge that appellant was capable of violence, had a short temper and wasable to do harm. (11 RT 4088.) The court ruled as follows: The Court will allow Mary Webster to say that she has seen Mr. Case in two physical altercations. That would be the extent of it. No details about weapons, specifically, the fireplace poker. She has seen him in twophysicalaltercations which would presumably support her belief that he was a man of his words. (11 RT 4114.) The court later revisited its ruling regarding the fireplace poker. During a break in Webster’s direct examination,*° the prosecutor *° Although appellant’s written motion did not name Hobsonas one of the individuals whom appellant had “tried to kill” (2 CT 460-461, item 17), the prosecutor’s comments-indicate that he understood appellant’s objection to encompass evidence of appellant’s altercation with Hobson. “© To accommodate various witnesses’ schedules (RT 5045), both direct and cross-examination of Webster were interrupted with testimony of other witnesses. Webster’s direct examination can be found at 14 RT 4959- 5046 and 14 RT 5134-5150. Cross-examination appears at 14 RT 5151-15 (continued...) 126 noted that although the court had ruled Webster could nottestify about the poker, it had not addressed whether Hobson could do so. (14 RT 5055.) The defense again objected. (14 RT 5056.) The prosecutor contendedthat Hobson’s testimony regarding the fireplace poker was relevant to show the extent to which Webster was under appellant’s control and domination. (14 RT 5056-5058.) Thetrial court reversed its prior ruling regarding the fireplace poker, stating: [T]he defense is going to mount a multifaceted attack to the credibility of Mary Webster. And this relates directly to that issue, which is an important one for the jury to decide. The court finds that the value of this evidence outweighs any potential prejudice and will allow it overdefense’s objection. (14 RT 5059.) The defense requested a limiting instruction that the evidence was not being admitted to show that appellant “has a propensity to commit crime, only to show theeffect that he has on Ms. Webster.” (14 RT 5066.) When Webstertestified before the jury, the prosecutor asked her about appellant’s altercations with Nivens and Hobsonbefore she had mentioned anything about fearing appellant. Webstertestified that one weekafter appellant moved in with her, he and her adult son, Greg Nivens, had an altercation. (14 RT 4981, 4984.) During that incident, appellant hit Nivens, and Nivens called the police. (14 RT 4981.) Whentheofficers arrived, Webster told them something in appellant’s favor,*' and asa result, appellant was not arrested. (14 RT 4982.) “0 (...continued) RT 5218, 16 RT 5613-17 RT 5676 and 17 RT 5893-5947. “| Webster did not indicate what she told the officers or whether her statement to the officers was true orfalse. , 127 According to Webster, approximately a week later, appellant had an altercation with Webster’s then-roommate, Randy Hobson. (14 RT 4983- 4984.) Again law enforcement was called. (14 RT 4983.) When the authorities arrived, Webster told them something untrue that was to appellant’s benefit.” (14 RT 4982-4984.) Immediately after this incident, Hobson moved out of Webster’s home. (14 RT 4984.) On redirect examination, Webster added that during the incident, appellant hit Hobson with a fireplace poker, Hobson called the Sheriff's Departmentand, at appellant’s request, Webster hid the fireplace poker and lied to the Sheriff. _ (17 RT 5958-5959.) Neither the prosecutor nor the defense asked Webster whethereither of these altercations caused her to fear appellant, and she did not testify that they did. The prosecution called Randy Hobson as a witness. (15 RT 5273- 5315, 5325-5327.) Hobsontestified that his altercation with appellant occurred one morning when he, Webster, and appellant were in the kitchen. (15 RT 5277.) Hobson asked Webster for money that she owed him. (15 RT 5277-5278.) Appellant intervened and told Webster not to pay Hobson. (15 RT 5278.) Hobson told appellant that the matter did not involve him. (15 RT 5278.) Appellant struck Hobsonin the leg with the side, not the pointed end or hook,of a three- or four-foot long fireplace poker. (15 RF 5278-5279.) Hobson wrestled with appellant, put his thumbs to appellant’s eyes and threatened to pluck them out. (15 RT 5280.) Hobson eventually released appellant, and Webster called the police.’ (15 RT 5280.) When * Again, Webster did not indicate the content of her statement to officers. 3 As noted above, Webstertestified that it was Hobson whocalled (continued...) 128 the police arrived, Webster said something in appellant’s defense. (15 RT 5281.) According to Hobson,the police officers told him that because they had conflicting reports about the incident, they could do nothing further. (15 RT 5281.) Hobson felt betrayed by Webster and movedoutthat very night. (15 RT 5283.) After Hobson’s testimony, the trial court instructed the jury that it could consider the evidence on the issue of Webster’s credibility and the nature of the relationship between Webster and appellant, but not as evidence of appellant’s propensity for violence or as an indication that he committed the charged crimes.“ * (...continued) the police. (17 RT 5959.) “4 Thetrial court’s instruction was as follows: Ladies and gentlemen, that testimony is admissible for a limited purpose. It’s admissible on certain issues and should not be considered by you for other purposes. For example,it may be considered by you ontheissue of the credibility of Mary Webster. It may be considered by you in assessing the nature of the relationship between Mary Webster and Mr. Case. It should not be considered by you, for example, to say that if Mr. Case committed this act of violence, he, therefore, would commit other acts of violence, to wit, the offenses for which heis charged and, therefore, he’s morelikely to be guilty of those offenses or not because of testimonyofthis act or fight involving a fireplace poker. You can sayit’s admissible on some issues but not admissible on others. . One last comment, courts are often accused of hiding evidence from jurors because jurors fear that it is — the jurors will misuse the evidence. You should not use this evidence to show that Mr. Caseis likely to commit an act of violence but for the purpose for whichit is relevant, that is, the credibility of Mary Webster and the nature ofthe relationship between (continued...) 129 The prosecution also called Nivens, Webster’s son,to testify regarding the altercation that he had had with appellant. (17 RT 5973-5975, 5983.) Nivenstestified that the incident occurred during the time that appellant was living with Webster. (17 RT 5974.) Nivens, approximately 20 years old at the time, six feet, four inchestall and learning disabled, was in the house, partying with somefriends. (17 RT 5973-5974, 5983.) Webster was worried about her belongings and asked appellant to intervene. (17 RT 5974.) Nivens testified that appellant approached Nivens, who was sitting on the grass, and, unprovoked, hit Nivens on the mouth. (17 RT 5974-5975.) During cross-examination, Nivens admitted that Webster had asked him to lower the volume of the music he wasplaying and he had not complied with her request. (17 RT 5985-5987.) Although Nivenstold an investigator from the district attorney’s office that appellant hit him for no reason, he admitted that appellant did have a reason; appellant had later explained to him that he hit him because he had been disrespectful to his mother. (17 RT 5988.) Nivens also admitted that he had a baseball bat in "his handsatthe time appellant hit him. (17 RT 5994.) Tony Gane, appellant’s investigator, testified that Nivens admitted that he had been swinging the bat around and that his mother thought he was threatening her with it. (21 RT 7055.) After Nivens’s testimony,the trial court gave the jury a limiting instruction stating that the evidence could be considered only as evidence of Mary Webster’s character or feelings towards appellant, not as evidence “ (...continued) Mr. Case and Mary Webster. (15 RT 5285-5286.) 130 that appellant had any particular disposition.” Further, at the close of the guilt phase evidence, the court gave a modified version of CALJIC 2.09, instructing the jury that it could consider the evidence of appellant’s altercations with Hobson and Nivensonly as evidenceof “the nature of the relationship” between appellant and Webster and Webster’s state of mind at the time of her statements to detectives and others on the day after the killings. (2 CT 514-515; 23 RT 7616-7617.)* “’ Thetrial court instructed the jury as follows: Ladies and gentlemen, this evidence is admitted for a limited purpose. It is not admitted to prove the defendant, Mr. Case’s, disposition or his tendency to behavein a certain manner, but to establish the evidence as to the character of Mary Webster or her feelings toward Mr. Case. You can consider it for that purpose and for that purposeonly. (17 RT 5975-5976.) “© The relevant portion of the trial court’s limiting instruction provided as follows: The following evidence was admitted to show the nature of the relationship between defendant, Charles Case, and Mary Webster and to show Mary Webster’s state of mind at the time she made those statements. Mary Webster’s testimony about: 1. Defendant’s statements to her that he was a bank robber 2. Mary Webster’s taped statement to detectives Reed and Edwards on June 21, 1993. Testimony about the fight with Randy Hobson. Testimony about the striking of Greg Nivens. 5. Mary Webster’s telephonecalls to Arlene Eschelman [sic], Randy Hobson and David Ford on June 21, 1993. 6. Mary Webster’s statements to Officer Biederman on (continued...) P Y 131 2. Evidence That Appellant Told Webster He Wasan Ex-Convict and a Bank Robber and That He Had Committed Robberies in the Past Appellant movedto excludeall referencesto his status as an ex- convict (2 CT 460-461, item 1), to his criminal record (2 CT 460-461, item 8) and to his having committed robberies in the past (11 RT 4098-4099). In the last category, appellant specifically moved to exclude evidence that he had used “Nu-skin’”’ in prior robberies. (2 CT 460-461, item 13.) In his proffer, the prosecutor stated that Webster wouldtestify that appellant had told her he was a bank robber and an ex-convict and that he had committed robberies in the past. (10 RT 3873; 11 RT 4076.) The prosecutorlinked the relevance of this evidence to other testimony that he “© (...continued) June 21, 1993.... At the time this evidence was admitted you were admonishedthat it could not be considered by you for any purpose other than the limited purpose for which it was admitted. For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. Do not consider such evidence for the purpose except the limited purpose for which it was admitted. (2 CT 515-516; 23 RT 7616-7617.) ‘7 According to Webster, Nu-skin is similar to a liquid bandaid. (16 RT 5645.) At the in limine hearing on appellant’s motion to exclude, defense counselclarified that they did not object to evidence that when with Webster, appellant bought Nu-skin or items for a disguise or to evidence that appellant told Webster how one could use those items; defense counsel objected only to evidence of references by appellant to having used such techniquesin the past. (11 RT 4098.) On appeal, appellant does not challenge the testimony to which appellant did not object below. 132 intendedto elicit from Webster: that is, that appellant had bought Nu-skin and showedit to Webster, that appellant “told [Webster] he could put the Nu-skin on the tips of his fingers and commit robberies and not leave fingerprints,” that appellant told Webster how to use temporary tattoos and wigs as forms of disguise and that appellant had a couple of wigs and wanted to get another one for this purpose. (11 RT 4077-4078.)** The prosecutor argued that Webster’s testimony about disguises and Nu-skin would “‘sit out there in a vacuum”ifthe jury did not also hear that appellant was an ex-convict and that he claimed to be a bank robber (11 RT 4077); that the evidence regarding Nu-skin and disguises “show the defendant’s planning his deliberation and premeditation to ultimately commit robberies” (11 RT 4078); and that appellant’s statements to Webster regarding his _ criminal history were also relevant to the nature of Webster’s relationship with appellant, why she was intrigued by him and whyshehadfallen in love with him. (11 RT 4077-4080.) Asset forth above,the trial court found generally that all of the statements appellant had made to Webster that put him in a badlight were relevant to show why she was impressed and intrigued by him and why. she feared him, and therefore why sheinitially did as he told her with the bloody clothes and why shehesitated to go to the police. (11 RT 4092, 4097.) The court found that evidence of the statements appellant made to her about other offenses were relevant to her subsequent conduct and her motivation for that conduct. (11 RT 4100.) In additien to these findings “8 The prosecutor stated that Webster knew appellant was an ex- convict also because she had methis parole officer. (11 RT 4076.) The trial court excluded evidence that appellant was on parole as unduly prejudicial. (11 RT 4107, 4111.) 133 about the relevance of appellant’s statements generally, the court made the following comments specifically regarding the evidence that appellant told Webster he was an ex-convict and a bank robber, which the court linked to the evidence concerning Nu-skin and disguises: Numberone,reference to being an ex-convict. [{] And Mr. Druliner’s explanation included new skin [sic], buying new skin with her so that he can do robberies, that he had a wig, another way to do robberies and he would provide temporary tattoos to undermine any identifications that were made of him, and making dry runs on robberies.” [§] Regarding the new skin, the wigs and the temporary tattoos, that appearsto the Court to be particularly relevant and the probative value would outweigh any prejudicial effect there. Because at the time he’s talking to Mary Webster, whichis before his relationship with Jerri Baker, his plan is to commit robberies, at least as stated to her, commit robberies and foil identifications by disguising himself. [§]] The evolution of his plans reaches its independent point when he’s talking to Jerri Baker in that conversation in the back yard wherehis complaints have evolved from undermining eyewitness identification to eliminating eyewitness identification by eliminating eye witnesses by killing them during the course of the a robbery. [{] So this is evidence ofpremeditation and deliberation, so far as how this plan with the gun, howit’s formed and how to carry it out. [§] As far as his being an ex- convict is concerned, that’s interwoven with the rest ofthese statements, and the Court is going to admit that with a. limiting instruction. (11 RT 4104-4105.) Later in the hearing, the court added: Then evidence that he’s an ex-conin that that’s what he told her, of course, will be admitted because that’s part and parcel of what hetold her to impressher. (11 RT 4111.} Regarding appellant’s purported statement that he had used “? Thetrial court later excluded Webster’s testimony that appellant did “dry runs.” (11 RT 4106.) 134 Nu-skin in the past, the court stated it would give a limiting instruction - concerning that evidence specifically (11 RT 4112), but never did so.” Early in Webster’s direct examination before the jury, the prosecutor asked her if appellant had told her he was a bank robber andtold her stories about robbing banks, both of which she confirmed. (14 RT 4971.) Webster testified that when appellant lived with her, he told her stories almost ’ nightly about prior crimes that he had committed. (14 RT 4973, 4985.) He. told her that he was the best bank robber, and she believed that he was. (14 RT 4985.) Thefirst reference that the jury heard to appellant’s status as an ex- convict was in the context of Webster’s testimony that appellanthad moved out of her house several monthsbeforethekillings.°! Webstertestified that appellant told her the reason he was moving out was that he wanted to see other women. (14 RT 4986.) The following exchange then occurred: Prosecutor: And when hetold you that [he wanted to move out], did he tell you that in relation to his being an ex-conatall? °° Thecourt stated that it would give a limiting instruction regarding appellant’s statements that he had used Nu-skin in prior robberies (11 RT 4112), but not as to the act of buying Nu-skin (11 RT 4105). Defense counsel did not remind the court to given the instruction that it stated it would give, and therefore appellant does not contend on appealthat the court’s failure to so instruct was error. (See People v. Cowan (2010) 50 Cal.4th 401, 480.) Although notthe basis for a claim of error on appeal, the fact that no limiting instruction was given is nevertheless relevant to assessing the prejudice that resulted from trial court’s error in admitting the evidence. °! Although this wasthe first evidence the jury heard on the subject, the prosecutor had mentioned that appellant was an ex-convict in his ' Opening statement. (11 RT 4137, 4139.) 135 Webster: Prosecutor: Webster: — No Okay. Did he say anything to you with regard to having been an ex-convict and always wanting to just basically party or date lots of women? Neversaidit like that, no. (14 RT 4986.) The first evidence of appellant’s ex-convict status was introduced in response to the prosecutor again raising the subject: Prosecutor: Webster: Prosecutor: Webster: (14 RT 4992-4993.) At that point in time where he wasindicating that he wanted to buy a gun,he already told you that he was an ex-convict? Yes And he’d already introduced himself to you as or described himself to you as you’ve already described to us, as being a bank robber? Yes Upon appellant’s request, the court then gave the following limiting instruction: Here, the answerto the last question is not offered for the truth of the matter asserted, and that is that Mr. Case was, in fact, a bank robber, but to explain that this is what he said and it’s affect on the person whoheard it, Miss Webster. .. . The same with ex-convict; not whether he was, in fact, an ex- convict, but that that is what he said to Ms. Webster and what affect it had on her and how it may explain her subsequent conduct. (14 RT 4993.) Also on direct examination, Webstertestified that appellant told her that he had used the product called “Nu-skin” before and “it worked good.” (14 RT 4972.) Despite the court’s earlier statement that it would give a limiting instruction in this regard, no limiting instruction was given. Websteralso testified that appellant “used to layer his clothes” (14 RT 4974) so that he looked “‘a couple hundred poundsor a hundredandfifty pounds morethan hereally is. Completely disguise himself’ (14 RT 4975). As noted above, when the jury was instructed at the close of the guilt phase, the court gave a modified version of CALJIC No. 2.09,stating that evidence of appellant’s statements to Webster that he was a bank robber had been admitted to show the nature of appellant’s relationship with Webster and Webster’s state of mind at the time of her statements to Eshelman, Hobson, Biederman, Ford, Reed and Edwards on the dayafter the killings 3. Evidence That Appellant Told Webster He Had Hurt and Killed People in the Past In his written motion, appellant moved to exclude Webster’s expected testimony that appellant had referred “to hurting people in prior criminalactivities” (2 CT 460-461, item 8), “to killing people, that he is capable of murder, or that he is going to kill someoneelse” (2 CT 460-461, item 9) and “to how he did something to someone whohad turned him in to the-police” (2 CT 460-461, item 15). The prosecutor stated that appellant told Webster he had committed acts of violence in prison, that appellant * Websteralso testified, without objection, that appellant bought Nu-skin, temporary tattoos, a wig and a moustache (14 RT 4973-4974, 4976-4978) and that he told her he bought the wig and moustache “to go out and do something, rob and stuff’ (14 RT 4978). However, Bakertestified that when appellant lived with her, Webster brought him two wigs (18 RT 6109, 6205; 20 RT 6937), and that appellant had told her that Webster bought the wigs for him and asked him to start doing robberies because she needed money (18 RT 6110, 6205, 6318). 137 madereferences to having “pistol whipped people in the past and bumped people off’ and that he said he had “taken care of” the person who acted as the getaway driver in his 1978 robberies and had turnedstate’s evidence against him. (10 RT 3873; 11 RT 4086.) In addition to the court’s general findings of relevance of appellant’s statements regarding his past bad acts (see pp. 123-125, ante), the court madethe following remarks specifically concerning appellant’s reported reference to hurting people in prior criminalactivities, item 8 of appellant’s motion to exclude: That’s going to be admitted. But again, with a limiting instruction, that Mr. Case’s allegations of his past are offered not for the truth of the matter asserted therein. It is not to showthatthis is, in fact, what he’s done in the past but to explain why Mary Webster was impressed and intrigued with him and whyshe followedhis instructions after he gave her the bloody clothes and the gun. (11 RT 4108.) The court ruled that Webster would not be permitted to mention specific instances of such conduct, but could make general references. With respect to evidencethat appellant referred to having killed people in the past, which was encompassed in item nine of appellant’s motion, the court’s only remark was: “[n]ine, again, that will be admitted with the limiting instruction.” (11 RT 4109.) With respect specifically to ‘the evidence that appellant said he had had something doneto his former crime partner, item 15 of appellant’s motion to exclude, the court ruled: Unfortunately, for the defense, that’s a statement that whether it’s true or not, let’s assumethat it’s not true. Butstill in the context ofall the rest of this and in the context of their relationship explains her actions on the date that she’s driving him around with these bloody clothes in the car because, 138 again, she’s not decided that she’s going to drive directly to the police department or sheriffs department and turn these things in. She’s still turning over in her mind whatsheis going to do with it. [§] Doesn’t make the decision to turn them in until she sees that police officer on H Street. And so, again, it’s not admitted for the truth of the matter asserted. It’s, again, to show the effect on the hearer. And I don’t expect there is going to be — the prosecution will not be permitted to present evidence of someone whowasallegedly killed at Mr. Case’s direction some other time some other place. But, again, this is something that he told her, which the context of their relationship becomes more meaningful when compared with the event that occurred later on. (11 RT 4112-4113.) Attrial, Webster testified that the morning after appellant came to her house with the bloody clothes and the gun, she started to go to work, but on the way there, thought about someofthe things appellant had said in the past and changedher mind: On my way to work I wasrecalling all the things he told me, that he bumped -- bumped a couple people off and, um, then I started to recall maybe the story was true. And I wasn’t about to let him get away with -- maybe he could kill a couple more people, so I started making some phonecalls. I started getting real nervous. (14 RT 5021.) She testified that until then, she had found appellant’s stories about being a bank robberandhis use of disguises intriguing and exciting. (14 RT 5022.) That morning, she started to worry that the story appellant had told her the night before might be true. (14 RT 5022.) She called Detective Ford to ask for advice. (14 RT 5022.) The prosecutor — asked her why she called Detective Ford, and she responded: Well, like I said,all this [sic] stories I heard every single night of what — how helived,his little stories, you know, how he knocked people off, old people, slapped right — you know — 139 (14 RT 5032.) Defense counsel objected, and the objection wassustained. The following exchange then occurred: Prosecutor: What I’m asking you is what caused you in general to call Detective Ford. Webster: Fear of someoneelse’s life Prosecutor: And did that include fear of your son, Greg Nivens’ life or your brother? . . . Webster: No, fear of somebody’s life. ..Somebody. That could be anybody? Prosecutor: Somebodyelse’slife? Webster: Yes Prosecutor: As in fear that it could happen again? Webster: Yes (14 RT 5032-5033.) The court gave no limiting instruction regardingthis evidence.* Websteralso testified that she was reluctant to testify, and that on the day after appellant was arrested, she told the detectives that she was not going to “go in front of” appellant to testify. (14 RT 5043.) Webster then stated that she had been unable to sleep the night before. When the °? Althoughthelimiting instruction given immediately prior to deliberations addressed the evidence of appellant’s statements to Webster that he was a bank robber (2 CT 515-516), it did not address the evidence of appellant’s statements that he had “bumped a couple people off’ (14 RT 5021), “knocked people off’? (14 RT 5032) or slapped people (14 RT 5032). Because defense counsel did not remind the court that it planned to give a limiting instruction regarding this evidence, appellant does not argue on appealthat the failure to so instruct was error. (See fn. 50, ante.) However, the fact that such an instruction was not given is relevant to the assessment ofprejudice resulting from the erroneous admission of the evidence. 140 prosecutor asked her why she had been unable to sleep, she stated that she wasafraid for her life. (14 RT 5044.) The following exchange then occurred: Prosecutor: Webster: Prosecutor: Webster: Prosecutor: Webster: Did Mr. Case say things to you before that caused youto believe that you should be afraid? Yes Now,one specific question. Did Mr. Case ever tell you anything with regard to a former getaway driver that had snitched him off? Yes Whatdid hetell you? He got rid of him. (14 RT 5044.) The court then gave the following limiting instructions: Court: Prosecutor: Again, Ladies and Gentlemen,that’s not offered to prove the truth of the matter in the statement, that is, got rid of the female getawaydriver; just that the statement was made to her and what effect it had on Ms. Webster. J don’t know if it was a female driver. I meant former. (14 RT 5044.) The limiting instruction given at the conclusion of the evidence, the relevant portion of whichis set forth in full above, did not address this evidence. (See 2 CT 515-516; 23:RT 7616-7617;fn. 46, ante.) 4. The Tape of Webster’s Interview with Detectives on June 21, 1993 During a break in the cross-examination of Webster, the prosecutor offered into evidence a redacted tape of Webster’s initial interview with detectives Reed and Edwards on June 21, 1993. (17 RT 5801; see 23 Aug 141 CT 6650-6683 [Exhibit 93-A*“].) Appellant objected to various sections of the tape and requested further redactions. The court overruled appellant’s objections and denied the redaction requests as follows:* First, appellant objected to the following exchange (18 RT 6168- 6169): Webster: Why would hetell me it was Del Paso Heights? Reed: Why would he come andtell you anything? That whole thing was stupid. What we’re telling youis, is that’s what it looks like to us Webster: You — are you serious right now? Reed: Absolutely (23 Aug CT 6668 [p. 19], lines 23-28.) The court overruled the objection * Exhibit 93-A is a transcription of Exhibit 93, the version of the tape that the prosecutorinitially offered into evidence. (18 RT 6167.) Additional redactions were made after the hearing on the issue, and Exhibit 94 is the version of the tape that was played for the jury. (18 RT 6341.) Exhibit 94-A (Aug CT 6611-6649)is a transcription of Exhibit 94. (18 RT 6338.) At the hearing on the issue, the parties referred to the relevant portions of the transcription by reference to the internal pagination ofthat document. Where that transcription is cited here, internal page numbersare included in brackets. °> In stating their objections to the tape, defense counsel frequently, but notinvariably, cited Evidence Codesection 352 or argued that the evidence was moreprejudicial than probative. In several instances where defense counsel did not expressly make sucha reference, thetrial court nevertheless addressed whetherit found the evidence more prejudicial than probative. (See, e.g., 18 RT 6168-6173.) This indicates that the trial court understood the motion to include that objection andthatit exercisedits discretion pursuant to section 352 throughoutthis hearing. Accordingly, whether or not each of defense counsel’s objections made specific reference to Evidence Code section 352, the issue is properly preserved for review, and any further reference by defense counsel to that provision would have been futile. (People v. Welch (1993) 5 Cal.4th 228, 237-238.) 142 without explanation. (18 RT 6171.) Second, the defense objected to Edwards’ statement to Webster that the reason appellant told her he had shot two people in Del Paso Heights wasthat he wanted to boast about having killed somebody, but did not want to give Webster the true facts. (18 RT 6172; 23 Aug CT 6669[p. 20], lines 11-16.) The prosecutor argued that the evidence showed the degree of Webster’s resistance to believing that appellant had committed the crimesat The Office. (18 RT 6173.) Thetrial court ruled: I think it’s admissible for that purpose, and I think the probative value outweighs any possible prejudice. I don’t see that there is that much,if any prejudice from those lines. I will overrule the defense objection to that portion. I think it © definitely showsthe efforts of the detectives to convince Mary Webster to cooperate, and it provides a good look at her state of mind at that time, which was an unwillingness to believe and an unwillingness to cooperate. (18 RT 6173.) Third, appellant objected to the detectives’ answer when Webster asked why they believed appellant was responsible for the killings at The Office. The detectives listed various reasonsfor that belief: “the caliber of the weapon,” presumably meaningthat the caliber of the gun used im the killings at The Office was the sameas the caliber of the gun that Webster ~ said appellant brought to her house the previousnight; “all the blood on his boots,” which Reed said fit the crime scene; the timing ofthe killings at The Office, which Reed said were between 8:30 and 9:30; and appellant’s “boastin’ about doing two people,” when two people were killed at The Office. (18 RT 6174; 23 Aug CT 6670 [p. 21], lines 5-28; 23 Aug CT 6671 [p. 22], lines 1-12.) Webster responded that appellant had told her the people he shot were black. (23 Aug CT 6671 [p. 22].) Reed and Edwards 143 respondedthat appellant was lying. (23 Aug CT 6671 [p. 22].) Defense counsel objected that the evidence was more prejudicial than probative pursuant to Evidence Code section 352. (18 RT 6174-6175.) The prosecutor arguedthat the length of the interview, the amountof information that the detectives provided to Webster and the length of time that she continued to resist were significant. (18 RT 6175-6176.) Thetrial court agreed: I’m going to overrule the defense objection to this section. I believe that it does, as Mr. Druliner points out, shows the resistance that was offered by Mary Webster,that is, her strong desire not to believe that what the officers were saying wastrue and her desire not to cooperate with them. So I think this is a good exampleofthat. (18 RT 6176.) Fourth, appellant objected to another statement by Reed asserting that appellant had lied to Webster. (18 RT 6178; 23 Aug CT 6674[p. 25], lines 14-15.) Defense counsel argued that it was cumulative of statements — madeto her in other portions of-the interview. (18 RT 6178.) Thetrial court ruled that it showed “the efforts they went through and it shows her state of mind as well,” and “it also shows at some point, she begins to come around. And this may be whereit begins.” (18 RT 6178.) Fifth, appellant objected to-statements by the officers. that “all this fits” with the crime scene evidence, that “he lied to you about the circumstances, but it’s cards, ah — kinds of money”and that the motive may have been robbery. (18 RT 6179; 23 Aug CT 6674 [p. 25], lines 27-28; 23 Aug CT 6675[p. 26], lines 1-5.) Defense counsel argued that this conveyed that appellant was guilty and therefore was prejudicial. (18 RT 6181.) The trial court overruled the objection, finding that “the point of this evidence 144 hereis that in the face ofall of the facts that she is given by the detectives, shestill stubbornly refuses to believe that Mr. Case could have any involvement whatsoever in the Rancho Cordova shootings.” (18 RT 6181.) Sixth, appellant objected to detective Edwards’s statementasserting that the reason appellant told Webster that he had committed the shooting in Del Paso Heights was “[p]robably to cover up little bit? Probably hopefully that you wouldn’t put the one out in Rancho Cordova with the one in Del Paso... And he could look like a big man and — throw fear into you, thinking -.” (23 Aug CT 6675 [p. 26], lines 20-27) Defense counsel argued that inter alia, the evidence was more prejudicial than probative. (18 RT 6181-6182.) Thetrial court ruled that.it would admit the evidence with a cautionary instruction, stating: the primary purpose of whatthe officers are saying here is to. get her to cooperate and give them the gun and anyother evidence that she might have. So that’s the purpose of these efforts and whether the things they say turn out to be true or not is really secondary. It does show a continued resistance here. (18 RT6183.) Seventh, appellant objected that additional statements made by the officers asserting that appellant killed two people were cumulative. (8RT 6184; 23 Aug CT 6676,lines 4, 7-8.) The court ruled: At this point though, they are right down to the real issue here. She’s reluctant to give up the gun because she’s afraid and she doesn’t wantto believe it and they are countering with he killed two people. Give us this evidence. It’s the moral dilemma that she faces, really, she has information and evidence which could link her former boyfriend to the death of these two individuals. And yet, she still doesn’t want to give evidence against him. For example,at line seven, Edwardsintrigued her, “Let us look at the gun and prove 145 that.” And her response is explain this to me one moretime. “Ts this for real?” So that will be admitted over defense objection. (18 RT 6184.) Eighth, appellant objected to the officers telling Webster repeatedly that appellant “did it,” arguing that it was just a continued expression ofthe officers’ belief that appellant was the guilty party and wastherefore cumulative. (18 RT 6185; 23 Aug CT 6678 [p. 29], lines 5-7.) The court ruled that the evidence would be admitted, finding “This is an attempt to sway this person to cooperate. The officer’s opinion as to whodidit is irrelevant. It doesn’t matter what he thinks except the jury.” (18 RT 6186.) Ninth, over appellant’s objection, the court admitted Reed’s statement to Websterthat, “[h]e’s not going to come after you because I am convinced that he’s the one that did this.” (18 RT 6187; 23 Aug CT 6684 [p. 35], lines 20-21.) The court found the statement probative andthat “it showsthat she is at this point, she’s beginning to — resistance is beginning to crumble.” (18 RT 6188.) Finally, appellant objected to evidence of Reed’s and Edwards’ Stated opinions: Reed stating that if he were Webster, he would notsleep at night as long as appellant remained on the street (18 RT 6189; 23 Aug CT 6685 [p. 36], lines 8-9); Reed and Edwardstelling Webster that appellant wasresponsible for the killings at The Office (18 RT 6189; 23 Aug CT 6685 [p. 36], lines 11-13); and Reed theorizing that the shootings were done at close range and that appellant was standing in a particular position on the floor so that blood got on his boots (18 RT 6189; 23 Aug CT 6685[p. 36], lines 21-28; 23 Aug CT 6686 [p. 37], lines 1-4). The court found that at the time of this exchange, Webster“still doesn’t believe it” and that the 146 detectives’ statements “confirming with the evidence over and over again” were admissible “to try to get her to cooperate.” (18 RT 6190.) The redacted tape was played for the jury, and a transcription ofit wasdistributed for jurors to read while the tape was playing. (18 RT 6338, 6341.) The defense requested a limiting instruction. (18 RT 6276-6277.) At the time that the tape was played, the court instructed the jury as follows: During the interview, Detective Edwards and Detective Reed will tell Mary Webster certain facts about the investigation. [{] You should keep in mindat all times that the jury determines what the facts are. Andthat at the time thatthis interview was conducted, June 21%, 1993, first, the investigation was nowhere near complete. Second, the purposeofthis interview was to persuade Mary Websterto cooperate with law enforcement. And for that reason, the detectives are permitted to shade the facts, if that is necessary, in their judgment to persuade the individual to whom they are speaking in this case, Mary Webster, to cooperate. [{]] So you should not believe that Detective Reed or Detective Edwardsat that time had any special knowledge of what the truth is in as far as this case was concerned. [{]] Again, you will be the ultimate finders of the facts in this case. [J] And, finally, this tape and the statements of Mary Webster are not offered for the truth of the matter asserted in those statements but to explain and demonstrate for you Mary Webster’s state of mindat the time the interview was conducted. So that you may consider that if you find it relevant in resolving other issues in this trial. (18 RT 6340-6341.) The evidence was also referenced in the limiting instruction given at the close of the evidence, stating that it could be considered only “to show the nature of the relationship between defendant, Charles Case, and Mary Webster and to show Mary Webster’s state ofmind at the time she made those statements.” (2 CT 515-516; 23 RT 7616-7617; fn. 46, ante.) 147 B. The Trial Court Abusedits Discretion Pursuantto Evidence Code Section 352 in Admitting Evidence of Appellant’s Other Crimes and Webster’s Taped Interview with Law Enforcement In the guise of bolstering the credibility of prosecution witness Mary Webster, the trial court erroneously permitted the prosecution to present evidence that: (1) Webster had seen appellant get into two physical altercations, one with her son, Greg Nivens, and the other with her then- roommate, Randy Hobson;(2) appellant told Webster he was an ex-convict and a bank robber and had committed a numberofrobberies; (3) appellant told Webster he had “bumped a couple people off’ before; (4) appellant told Webster that he had gotten rid of a former crime partner whosnitched him off; and (5) detectives told Webster repeatedly and emphatically that they believed appellant was responsible for the murders at The Office and the reasons for that belief, in order to secure her cooperation. Each ofthese items evidence was minimally relevant, but tremendously inflammatory and likely to have a prejudicial effect. Whether considered individually or cumulatively, the trial court’s rulings admitting this evidence were an abuse of discretion. Pursuant to Evidence Code section 352, evidence must be excluded if its probative value is substantially outweighed by the probability thatits admission will create substantial danger of undue prejudice, confusing the issues or misleading the jury. (Evid. Code § 352.) Evidence should be excluded undersection 352 if it uniquely tends to evoke an emotional bias against the defendant as an individual and yet has very little effect on the issues. (People v. Coddington (2000) 23 Cal.4th 529, 588, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069,fn. 13.) Evidence is substantially more prejudicial than probative under section 148 352 if it poses an intolerable “risk to the fairness of the proceedingsor the reliability of the outcome.” (People v. Alvarez (1996) 14 Cal.4th 155, 204, fn. 14). This Court has long recognized the prejudicial effect inherent in evidence that the defendant has committed other crimes: “[t]he admission of any evidence that involves crimes other than those for which a defendant is being tried has a ‘highly inflammatory and prejudicial effect’ on the trier of fact.” (People v. Thompson (1980) 27 Cal.3d 303, 314; accord, People v. Ewoldt (1994) 7 Cal.4th 380, 404.) [Admission of such evidence produces an “over-strong tendency to believe the defendant guilty of the charge merely becauseheis a likely person to do such acts.” (1 Wigmore, Evidence, § 194, p. 650.) It breeds a “tendency to condemn, not becauseheis believed guilty of the present charge, but because he has escaped unpunished from other offenses ....’ (Ibid.) Moreover, “the jury might be unable to identify with a defendant of offensive character, and hence tend to disbelieve the evidencein his favor.” (Citation.) > (People v. Thompson, supra, 27 Cal.3d at p. 317.) Because substantial prejudicial effect is inherent in evidence of uncharged offenses, such evidence is admissible only if it has “substantial probative value.” (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) Evidence of uncharged misconductis so prejudicial that its admission requires “extremely careful analysis.”” (People v. Lewis (2001) 25 Cal.4th 610, 637, quoting Ewoldt, supra, 7 Cal.4th at p. 404.) “[AJll doubts about its connection to the crime charged must be resolved in the accused’s favor. [Citations].” (People v. Alcala (1984) 36 Cal.3d 604, 631, abrogated by statute on other grounds.) In determining whether other crimes evidence is admissible under 149 Evidence Code section 352, the trial court must consider five factors: (1) whether the evidence of uncharged misconductis material, i.e., the tendency ofthe evidence to demonstrate the issue for which it is being offered; (2) the extent to which the source of the evidenceis independent of the evidence of the charged offense; (3) whether the defendant was punished for the uncharged misconduct; (4) whether the uncharged misconduct is more inflammatory than the charged offense; and (5) the remotenessin time of the uncharged misconduct. (People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405.) Pursuantto these governing legal principles,the trial court abusedits discretion in admitting the evidence challengedhere. 1. The Evidence of Appellant’s Altercations with Greg Nivens and Randy Hobson Was Far More Prejudicial than Probative Thetrial court erred in admitting evidence that some monthsprior to the robbery-murders, appellant had gotten into two physical altercations at Mary Webster’s house, one with Greg Nivens, Mary Webster’s son, and the other with Randy Hobson, Mary Webster’s then-roommate. The court admitted the evidence to show Webster’s state of mind and“the natureof the relationship” between Webster and appellant on the day after the killings. (2 CT 515-516; 23 RT 7616-7617.) To the extent that Webster’s state of mind and the nature of her relationship with appellant were relevant, they were not in dispute, and were established by other evidence. Further, the altercations were not probative of Webster’s state ofmind, as there was no evidenceas to the effect that those incidents had on her thinking. For these reasons, the probative value of the evidence wasfar from “substantial.” (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) 150 On the other hand, the likelihood that the evidence would have a prejudicial effect was enormous. The incidents were highly inflammatory, and because appellant had not been arrested or prosecuted for his conduct, the evidence waslikely to lead to confusion of the issues and a desire on the part ofjurors to punish appellant for his prior bad acts. The prejudicial effect of the evidence far outweighed any probative value, and the court’s admission of the evidence was an abuseofits discretion pursuant to Evidence Code section 352. a. The Evidence Had Minimal Probative Value The principal factor in evaluating the probative value of other crimes evidence is whetherit has a “strong” tendency to prove the material factit is offered to prove. (People v. Ewoldt, supra, 7 Cal.4th at p. 404; People v. Balcom (1994) 7 Cal.4th 414, 427; see People v. Gray (2005) 37 Cal.4th 168, 202 [the admissibility of evidence of uncharged offenses “depends on the materiality of the fact to be proved’; People v. Valdez (2004) 32 Cal.4th 73, 109 [evidence with “minimal” probative value properly excluded under section 352].) Generally speaking, evidence bearing on Webster’s credibility was relevant, but not everything that Webster knew about appellant’s past was admissible. Rather, evidence of appellant’s other crimes was admissible to bolster her credibility only if it had a strong tendency to prove the trustworthiness of her testimony. The court admitted evidence of appellant’s altercation with Hobson and his striking ofNivens to show Webster’s “state of mind”and “the nature of the relationship” between Webster and appellant on the day after 151 the killings. (2 CT 515-516; 23 RT 7616-7617.)The court’s rationale was that Webster both feared and loved appellant, and that those feelings explained her hesitation to go to the police and herinitial willingness to do as appellant said with the clothes and the gun. (11 RT 4092.) Asa result of her knowledgeof, or beliefs regarding, appellant’s past, she was “impressed” and “intrigued” with appellant, but also afraid of him. (11 RT 4092, 4093, 4097.) The court found that appellant’s statements putting himself in a bad light established “what motivated her to do some ofthe things that she did.” (11 RT 4097.) The court ruled that “a witness’s fear of a defendantis a basis for admitting evidence ofwhat the defendant has said or even donein order to explain that witness’s subsequent conduct.” (11 RT 4100.) Evidence that Webster feared retaliation from appellant was relevant to her credibility. This Court has also held that it is generally within the trial court’s discretion to admit evidence of the basis for a witness’s fear. °° Thetelevantportion ofthis instruction is set forth above at footnote 46. The court used slightly different verbiage in the limiting instructions given at the time the testimony was presented: When Hobson testified about his altercation with appellant, the court instructed the jury that it-could consider that evidence “on the issue of the credibility of Mary Webster” and “in assessing the nature ofthe relationship between Mary Webster and appellant.” (15 RT 5285-5286.) During Nivens’s testimony, the court instructed thejury that the evidence could be considered “as to the character of Mary Webster or her feelings toward Mr. Case.” (17 RT 5975- 5976.) Webster’s credibility was the only aspect ofher character that was in issue. As set forth below, her feelings toward appellant were the chief componentofthe state ofmind to which the evidence wasrelevant. Therefore, these instructions communicatedto the jury the same principles of relevancy as the court’s final instruction stating that the evidence was relevant to her “state of mind” and “the nature ofthe relationship.” (2 CT 515-516; 23 RT 7616-7617.) 152 (People v. Burgener (2003) 29 Cal.4th 833, 869.) It has found evidence of possible reasons for a witness’s fear admissible even where there was no showing that they were the actual cause of that fear or even that the witness wasactually afraid. (See, e.g., People v. Harris (2008) 43 Cal.4th 1269, 1289 [evidence of threat admissible to show reason for witness to be fearful despite absence of evidence that the witness wasafraid]; People v. Gonzalez (2006) 38 Cal.4th 932, 945-946 [gang expert’s testimony that gang members would intimidate any member whotestified against the gang admissible to show “possible intimidation” of witness].) Pursuantto this authority, the evidence of appellant’s altercations with Nivens and Hobson wasof some relevance, even though there was noindication that those events had caused Webster to be fearful. However, there was noindication ofhow the two incidents had affected Webster’s feelings or thoughts about appellant. Webster’s feelings for appellant were undisputed and were amply established by other evidence. Furthermore, to the extent that evidence of Webster’s response to the incidents — siding with and covering for appellant — reflected her devotion to appellant and hertolerance of (or attraction to) his criminality, the fact that Webster held those feelings and thoughts was undisputed. Under these circumstances, admitting the tremendously inflammatory evidence of appellant’s uncharged acts of violence on such a thin thread ofrelevance wasa clear abuseofdiscretion. 1. Appellant Did Not Dispute Webster’s Feelings Regarding Appellant or the Nature of Their Relationship Certainly, a central question at trial was Webster’s credibility. The prosecutor argued that Webster was a scared former lover who turned appellant over to the authorities out offear (22 RT 7371), while the defense 153 suggested that Webster was a scorned former lover who framed appellant for the crimes because he left her for another woman. (16 RT 5636-5637; 22 RT 7404.) The parties sharply dispute whether she testified truthfully about the events of the night of the robbery-murders and her reasons for implicating appellant. The prosecutor contendedthat the story appellant told Webster on the night of the killings — that he had shot two men over a poker game in Del Paso Heights — wasa lie, that in fact he had committed the double robbery-murder at The Office, that the shirt and boots which he gave to Webster were the ones he was wearing when he killed Manuel and Tudor and that the gun he gave Webster was the weaponhe had used in committing those crimes. (11 RT 4147-4148; 22 RT 7319-7329, 7352.) The prosecutor soughtto establish that fear motivated Webster to turn appellant in, and posited that witnessing the altercations with Nivens and Hobson showed that Webster had reason to be afraid. (11 RT 4088.) The defense contended that Webster was angry at appellant for having left her for another woman andthat she or her brother, Steve Langford, or both had committed the killings and, in revenge, framed appellant for them. (22 RT 7472, 7550-7551.) Appellant disputed Webster’s overall veracity concerning what had happened on the night of the killings and bluntly argued that she wasa liar. (See, e.g., 11 RT 4157- 4158 [defense opening argument]; 22 RT 7394, 7442 [defense closing argument].) However, appellant did-not dispute the prosecution’s evidence regarding her feelings about appellant, the nature of their relationship or her actions on the dayafter the killing. The defense challenged Webster’s credibility in two very specific ways: by presenting evidence of Webster’s own crimenfalsi, and by presenting evidence of Webster’s prior 154 inconsistent statements regarding the events of the night of the killings. Appellant showed that Webster had a history of acts involving dishonesty: she had obtained large sums of money and other items of value — arguably by fraud or theft — from Clyde Miller, an elderly man who had been in her care. (See, e.g., 14 RT 5079-5117; 17 RT 5929-5945; 20 RT 6772-6778; 20 6790-6794, 6876.) She had written bad checks. (See,e.g., 14 RT 5095; 20 RT 6878.) She had intentionally failed to report income to the governmentin order to obtain Social Security benefits. (14 RT 5156- 5157.) She had knowingly spent Social Security benefits to which she was not entitled. (14 RT 5156.) And she hadlied both in talking to law enforcement and in sworn testimony regarding the amount of moneythat appellant had reportedly given her on the night of the killings. (16 RT 5672-5674.) Appellant also showed that Webster had madeprior inconsistent statements regarding the events of the night of the killings, such as her statements concerning when shenoticed the blood on appellant’s shirt (17 RT 5949), how much blood she saw (16 RT 5627; 17 RT 5922-5923), the type of gun that appellant left with her (16 RT 5627-5628), the quantity of ammunition in the gun (16 RT 5627), what appellant said about the number of shots fired (17 RT 5895), whether appellant left his pants with her (RT 5670), whether appellant needed money (17 RT 5900, 5904), what appellant said about the money from the poker game (15 RT 5205; 17 RT 5919), the amount of money that appellant gave her (16 RT 5671-5673) and whether appellant was wearing socks when he went home (17 RT 5923). Appellant presented the testimony and prior statements of Webster’s brother, Steve Langford, which contradicted Webster regarding the events of the night of the killings and revealed that Webster had written a virtual script of the 155 version of events to which shetestified. (20 RT 6692-6714, 6740-6757; 21 RT 7039-7046, 7080-7092.) Although appellant’s defense placed in dispute Webster’s motivations for coming forward, appellant did not dispute the emotionsthat Webster felt for appellant. At the in limine hearing on appellant’s motion to exclude the evidenceat issue, defense counsel expressly stated that they would not challenge or attempt to discredit evidence that Webster feared appellant. (11 RT 4097.) Counsel further indicated that they would not object to testimony from Webster that her fear was based generally on the things appellant had said and done. (11 RT 4098.) Aspredicted, defense counsel did nothingattrial to place in dispute Webster’s fear of appellant or the reasons for those fears, nor did appellant challenge the evidence that Webster loved appellant or the depth of that love. Although the defense disputed whether those feelings were in fact what motivated Webster to go to the police, evidence of the reasons for her feelings did not inform that question. Thus, the evidence was ofminimal probative value to the central dispute concerning Webster’s state of mind: i.e., her motivation for turning appellant in. Further, the court’s statement that the evidence could be considered for the purpose of determining the nature of Webster’s relationship with appellant was arguably improper. Underthis theory of relevance, evidence of anything that appellant or Webster had ever doneor said that might conceivably have affected their relationship would have been admissible. Although“[t]he definition of relevant evidence is manifestly broad” (/n re Romeo C. (1995) 33 Cal.App.4th 1838, 1843), it is not that broad. Evidencestill must be probative of a dispute material fact. (Evid. Code §§ 210, 350.) Framing relevance in these terms effectively invited the jury to 156 consider the evidence of appellant’s bad acts as indicative of appellant’s criminal propensity or disposition, as long as it found that this charactertrait had something to do with the nature of appellant’s relationship with Webster. To the extent that the nature of the relationship was a proper consideration, it was not in dispute. Appellant did not challenge the evidence that Webster was devoted to appellant, that she had “always been there” for him (14 RT 4992), that she helped him obtain a gun and ammunition (14 RT 4994-4996) or that she continued to want his love and companionship even after he had been unfaithful to her and had rejected her. Asfor the admission of the evidence of appellant’s altercation with Nivens to show Webster’s character, the only aspect of Webster’s character that was in issue was her credibility, and the only way in which the evidence | reflect on her credibility was as evidence of her state of mind. Whether framed as evidence of Webster’s character, Webster’s feelings or Webster’s state of mind, the evidence went to establish facts that were not actually disputed: Webster feared appellant, was intrigued by his past criminal activities and adored him. None ofthese facts was disputed. Accordingly, if the evidence had any probative value, it was far from the “substantial” probative value that is required in order to justify admission of evidence of other crimes. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) 2. The Evidence Failed to Establish That the Altercations Caused Webster’s Fear In addition to the fact that neither Webster’s fear nor her adoration of appellant was disputed, the evidencefailed to establish that the incidents 157 involving Nivens and Hobson were causally connected to those feelings. The principal factor in evaluating the probative value of other crimes evidence is whetherit has a “strong” tendency to prove the material fact it is offered to prove. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) Thetrial court ruled that Webster would be allowedto testify that she observed appellant’s altercations with Nivens and Hobsonbecauseit “would presumably support her belief that he was a man of his words.” (11 RT 4114.) The court thus assumed that Webster’s response to those two incidents was to believe that appellant’s stories about other crimes and acts ofviolence were true. However, the evidence failed to show that Webster actually drew that inference herself. In fact, the prosecutor did not present any evidenceat all of what Webster felt or thought as a result of the two Incidents. 3. Webster’s Feelings Regarding Appellant Were Established by Other Evidence To the extent that evidence of the altercations had some relevance to Webster’s state of mind and the nature of her relationship with appellant, it was cumulative of other evidence. (People v. Ewoldt, supra, 7 Cal.4th at pp. 405-406 [“In many cases the prejudicial effect of such evidence would outweigh its probative value, because the evidence would be merely cumulative regarding an issue that was not reasonably subject to dispute”].) Evenif the jury had heard none of the evidence to which appellant objected, there would have been ample evidence of the facts that the evidence was admitted to show. The evidence of Webster’s fear was plentiful. Detective Ford testified that Webster wasafraid that appellant would kill her or someone 158 else. (14 RT 5127-5128, 5032.) Arlene Eshelman testified that Webster worried appellant wouldretaliate if she turned him in. (15 RT 5262.) Webstertestified on direct examination that she “was half-way afraid of” appellant (14 RT 5008), that she called Detective Ford out of “[flear of someoneelse’s life” (14 RT 5032), that she was afraid that “it” could happen again (14 RT 5032-5033), that she did not give the detectives the gun that appellant had left with her because she was afraid appellant would _ shootorkill her if he found the gun missing (14 RT 5034-5035) andthat she hadtold the detectives she would not testify because she wasafraid for her life (14 RT 5043-5044). The jury heard a tape of Webster’s interview with detectives on the day after the killings in which Webster stated “at least 16 times” (22 RT 7371) that she wasafraid of appellant and did not want him to know that she wastalking to them (23 CT 6611-6649 [transcript of Exhibit 94-A (redacted tape)]). All of this evidence was uncontroverted, and noneofit referred to appellant’s past conduct. Even if the reasons for Webster’s fear were of some relevance, defense counsel stated they would not challenge evidence that Webster’s fears were based generally on the things appellant had said anddonein the past. (11 RT 4098.) Over appellant’s objection, Websteralso testified that on the morning after appellant gave her the bloody clothes and boots, she started thinking about things appellant had said in the past about having “bumped a couple people off” (14-RT 5021),“knocked people off’ (14 RT 5032) and “slapped” people (14 RT 5032), and she started getting nervous. Also over objection, shetestified that the reason she wasafraid for herlife if she should testify was because appellant had told her that he “got rid of” a former getaway driver whohad “‘snitched him off.” (14 RT 5043-5044.) 159 Appellant challenges the admission of this testimony. (See section B.3, infra.) However, even if this Court should find that it was not an abuse of discretion to admit someofthe evidence of appellant’s past criminality because ofits relevance to Webster’s fear, admitting all of it was an abuse of discretion. To the extent that the evidence ofthe altercations showed the depth of Webster’s adoration for appellant, that state of mind was also thoroughly established by other evidence. On direct examination, Webstertestified that she invited appellant to move in with her approximately two weeksafter they met. (14 RT 4969.) When he movedout eight monthslater, it was his choice to do so, not hers; he wanted to see other women. (14 RT 4986.) During the time appellant lived with her, she found him to be an “exciting person” (14 RT 4994), she wasvery attracted to him (14 RT 4994) and she fell in love with him (14 RT 4985, 4989). She helped him buy a gun and ammunition for the gun. (14 RT 4994, 4996-4997.) When he movedout, saying that he wanted to wine and dine other women, Webster was hurt and “pissed off,” butstill in love with him. (14 RT 4985, 4989.) Although he moved in with Jerri Baker, Webster continued to love him; she went on dates with him, had sex with him, and was always there for him. (14 RT 4992, 5002.) On the day of the murders and the day after, she still loved him. (14 RT 5042; 17 RT 5903; 21 RT 6983.) Webster’s love for appellant was confirmed by Arlene Eshelman (15 RT 5267) and Randy Hobson (15 RT 5283). Appellant did not challenge any of this testimony. Indeed,it wasdefense counsel whoelicited from Webster that she told detectives she wasstill in love with appellant. (17 RT 5903.) The prosecutor arguedthat the relationship was founded on Webster’s attraction to appellant’s “outlaw mystique.” (RT 4076.) To the 160 extent that the evidence ofthe altercations showed Webster’s tolerance or perhapsattraction to appellant’s criminality, that too was shownby other evidence such as Webster’s willingness to help appellant buy a gun and ammunition (14 RT 4994, 4996-4997) and her willingness to go along with him while he bought Nu-skin and materials for a disguise (14 RT 4973- 4974, 4976-4978). Appellant objected to none of that evidence. To the extent that the evidence proved anything relevant to Webster’s credibility, it was cumulative of other evidence. b. The Evidence of Appellant’s Assaultiveness Was Inflammatory, and. the Likelihood That it Would Have a Prejudicial Effect Was Heightened Because Appellant Had Not Been Prosecuted The risk that evidence of appellant’s altercations with Nivens and Hobson would havea prejudicial effect was high. Evidence that appellant had physically attacked Webster’s son for showing disrespect toward his mother and had wielded a fireplace pokerto resolve a dispute with Webster’s house-mate over money wassure to inflame the jury’s emotions. The evidence of both incidents waslikely to cause jurors to feel revulsion ecgtowards appellant, the kind of evidence that “‘uniquely tends to evoke an emotional bias against a party as an individual.’” (People v. Cowan, supra, 50 Cal.4th at p. 475, citations omitted.) The fact that the trial court initially excluded any reference to the fireplace poker (11 RT 4114)suggests thatit recognized the inflammatory and prejudicial effect of that detail. The risk washighthat the jury would use the evidence of both incidents not solely to show the effect that they had on Webster, but as evidence that appellant was a violent and impulsive individual, the kind of person who would commit 16] the charged crimes. Therisk was great that the jury would infer from it that appellant had a criminal propensity and wastherefore guilty of the charged crimes. (See, e.g., People v. Brown (1993) 17 Cal.App.4th 1389, 1395- 1397 [where evidence of defendant’s other crime was admitted solely to support a witness’s credibility, the risk of prejudice outweighedits probative value].) The circumstances surrounding admission of the twoaltercations strongly suggest that the prejudicial impact of the evidence — showing appellant to be a bad and violent person whom the jury should dislike and want to punish — was precisely the prosecutor’s point. The Nivens and Hobsonassaults were admitted without any obviousrelationship to the charges and without any evidence oftheir effect on Webster. Webster’s testimony regarding these incidents preceded any evidence that she was afraid and lacked any logical connection to her credibility. The effect of presenting the evidence wasto “inflame the emotionsofthe jury, motivating them to use the information, not to logically evaluate the point upon whichit is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such-a circumstance, the evidence is unduly prejudicial because ofthe substantial likelihood the jury will use it for an illegitimate purpose.” (People v. Branch (2001) 91 Cal-App.4th 274, 286, citation omitted.) The prejudicial effect of the evidence was also exacerbated by the fact that the jury knew appellant had not been prosecuted for his violence towards Nivens or Hobson. Webstertestified that when talking with police after each ofthe incidents, she covered for appellant, and as a result, appellant did not get in trouble for them. (14 RT 4982-4984.) The prejudicial effect of other crimes evidenceis heightened when the 162 defendant’s uncharged acts have not resulted in criminal convictions,as it increases the dangerthat the jury will seek to punish the defendant for the uncharged offense. (People v. Ewoldt, supra, 7 Cal.4th at p. 405; see People v. Falsetta (1999) 21 Cal.4th 903, 917.) Such evidence also increases the risk of confusion ofissues in that the jury’s attentionis likely to be diverted to determining the truth or falsity of the allegations of other crimes. (People v. Falsetta, supra, 21 Cal.4th at p. 917.) That risk was particularly high here where not only Webster, but also Hobson and Nivens testified about the altercations. The result was a mini-trial which called upon the jurors to evaluate whether the incidents occurred as alleged, regardless of their connection to thetestimonyattrial or the crimes charged. These two factors — whether the other crime was adjudicated and whether the defendant was punished for it — are relevant to the calculus required pursuantto section 352. (People v. Balcom, supra, 7 Cal.4th at p. 427 [jury’s knowledge that unchargedacts resulted in a criminal conviction and prison term decreased prejudicial impact, as jury’s attention was not diverted to determining whether defendant had committed the uncharged offenses]; People v. Ewoldt, supra, 7 Cal.4th at p. 405 [where uncharged acts did not result in criminal convictions, prejudicial effect was heightened, as lack of conviction increased the likelihood of confusing the issues because the jury had to determine whether the uncharged offenses had occurred].) Because it was clear to the jury that appellant had not been prosecuted for his violent behavior towards Nivens or Hobson,the evidence was even more likely to have a prejudicialeffect. 163 c. The Limiting Instruction Was Not a Sufficient Safeguard Against the High Risk of Prejudice Thetrial court’s instructions that the evidence could be considered only for the limited purpose stated were not a sufficient safeguard against the risk that the jury would consider the evidence as an indication of criminal propensity or disposition. Limiting instructions whichtell the jurors to consider the other crimes evidence for a specific purpose are often deemed sufficient to offset the inherent prejudice of such evidence. (See, e.g., Spencer v. Texas (1967) 385 U.S. 554, 562 [jury is expected to follow instructions limiting evidence to its proper function].) However, the high court has recognized how difficult —- sometimes impossible — it is for jurors to follow a limiting instruction. “The government should not havethe windfall of having the jury be influenced by evidence against the defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.” (Jackson v. Denno (1964) 378 U.S. 368, 388, fn. 15.) At least one justice called “naive” the “assumption that prejudicial effects can be overcomebyinstructionsto the jury, [which] all practicing lawyers know to be unmitigated fiction.” (Krulewitch v. United States (1949) 336 U.S. 440, 453, conc. opn. of Jackson, J., citations omitted.) This Court long ago acknowledgedthat a limiting instruction with respect to a uncharged crime calls for “discrimination so subtle [as to be] a feat beyond the compass of ordinary minds.” (People v. Antick (1975) 15 Cal.3d 79, 98, superceded on other grounds by constitutional amendment.) This Court has recognized that the risk the jury will misuse evidencethat reveals a defendant’s other crimes may beso great that no limiting instruction can sufficiently protect against it and the evidence must be 164 excluded. (See People v. Coleman (1985) 38 Cal.3d at pp. 85-86 [although limiting instruction was given,trial court abused 352 discretion by admitting letters written by murder victim revealing prior violence by appellant].) One lower appellate court bluntly criticized the “sophistry and lack of realism” in thinking that a limiting instruction “can have any realistic effect... .” on the jury’s use of other crimes evidence; noting that “jurors are mere mortals... . We live in a dream world if we believe that jurors are capable of hearing such prejudicial evidence and not applyingit in an improper manner.” (People v. Gibson (1976) 56 Cal.App.3d 119, 130.) More recently, another appellate court described the problem in vivid terms: “A limiting instruction warning jurors they should not think about the elephant in the room is not the same thing as having no elephantin the room.” (People vy. Fritz (2007) 153 Cal.App.4th 949, 962.) Thus, one of the factors which the court must weigh in applying Evidence Code section 352 is “whether the circumstancesofthe statement are such that the jury will be unable to follow the limiting instruction.” (People v. Ortiz (1995) 38 Cal.App.4th 377, 392.) “If the court concludes that the jury will be unable to use the evidence solely within its limitations, the court should exercise its discretion and exclude the evidence.” (/did.) As this Court once said regarding statements by a murdervictim revealing prior uncharged misconduct by the defendant, In a not very subtle wayit told the jury what kind ofman it wasthat was before them ontrial. It will not do to say, as does the attorney general, that the jury wastold that these declarations were not to be considered for their truthfulness but merely as verbalacts casting light upon [the victim’s] state of mind. It is difficult to believe that even the trained mind of a psychoanalyst could thus departmentalizeitself sufficiently to obey the mandate ofthe limiting instruction. 165 Certainly a lay mind could not do so. (People v. Hamilton (1961) 55 Cal.2d 881, 898, overruled on other grounds in People v. Wilson (1969) 1 Cal.3d 431, 440.) Although in other respects, the Hamilton opinion has been abrogated, the concernsarticulated in this passagearestill valid and appropriate considerations in assessing the admissibility pursuant to section 352 of evidence that the defendant | committed or threatened other criminal conduct. (People v. Ortiz, supra, 38 Cal.App.4th at p. 392. ) As shownabove,the evidence of appellant’s altercations with Nivens and Hobson were minimally relevant to the purpose for which that evidence was admitted. Because Webster did not identify the effect of either incident on her thinking, the jury had nowhereto go with the analysis that the instructions permitted. Furthermore, in both incidents, appellant had becomephysically violent under circumstances wherehis physical safety was by no meansthreatened and there had been nosignificant provocation. The evidence thus powerfully suggested that appellant had a propensity for violence. Under the circumstances, the court could not reasonably conclude that the jury would be capable oflimitingits consideration of the evidence to its relevance to Webster’s credibility. For the jury to infer from the evidence of the assaults on Nivens and Hobson that Webster feared appellant without also considering it as evidence as to appellant’s character required “mental gymnastics” that were beyond the powers of any lay juror. (People v. Coleman, supra, 38 Cal.3d at p. 94.) In admitting the evidence,the trial court abusedits discretion. 166 2. The Evidence That Appellant Told Webster He Was an Ex-Convict and a Bank Robber and Had Committed Robberies in the Past Using Nu-Skin and Disguises Was Minimally Probative but Extremely Prejudicial Thetrial court abusedits discretion in denying appellant’s request to exclude the highly prejudicial evidence of his statements to Webster that he was an ex-convict and a bank robberandthat in the past, he had committed robberies using Nu-skin and other methods of disguise. Again, the evidence was of scant probative value, and the likelihood that the evidence had a prejudicial effect was extremely high. Evidence that appellant admitted being a convicted criminal and a professional robber was so inflammatory that the jury could not possibly have followedthe limiting instruction and ignored the natural human response of concluding that appellant had a criminal propensity. a. The Probative Value of the Evidence WasScant Like the evidence of appellant’s altercations with Nivens and Hobson,the probative.value of the evidence that appellant had told Webster he was an ex-convict and a bank robber and told her stories about bank robberies was minimal. First, appellant did not dispute the factual issues to whichit was relevant. Like the evidenceofthe altercations, this evidence was admitted to show the “nature of the relationship” between appellant and Webster and Webster’s state of mind at the time of her statements to law enforcement. (2 CT 515-516; 23 RT 7616-7617; 14 RT 4993.) The court’s rationale was that evidence of appellant’s statements to Webster abouthis prior criminality explained Webster’s feelings and thinking about appellant, particularly her fear of and attraction to him. (11 RT 4092, 4093, 4097, 167 4100.) The court found appellant’s statements relevant to Webster’s state of mind andthe nature of her relationship with appellant. As stated above (see section B.1.a, ante), Webster’s feelings about appellant — both her fear of and devotion to him — and the nature oftheir relationship were not disputed and were otherwise established by evidence to which appellant did not object. To the extent that the reasons for her fear were relevant, appellant indicated he would not challenge evidence that Webster’s fears were based generally on statements appellant had made abouthis background and things he had donein the past. (11 RT 4098.) Evidence of appellant’s statements about being an ex-convict and a bank robber was therefore cumulative of other evidence and of minimalprobative value. Second, like the evidence of appellant’s altercations with Nivens and Hobson, there was no showingthat appellant’s statements about being an ex-convict and a bank robberorhis stories about particular bank robberies actually caused Webster to fear him. As set forth above (see pp. 123-125, ante), the trial court’s rationale for admitting the evidence was based on a finding that appellant’s stories explained Webster’s fear and her fear explained her actions on the day after the killings, i.e., her reasons for not immediately go to the police. However, there was no evidence that appellant’s statements about being an ex-convict and a bank robberor the stories he had told about committing bank robberies in fact caused Webster to fear him. Even if, under the authorities cites above (see pp. 152-153, ante), the statements were relevant as possible reasons for Webster to be fearful, they were of minimal probative value because of the absence of any evidence that they actually caused Webster’s fear. Third,the trial court was incorrect in finding that appellant’s purported statements about having committed robberies using Nu-skin and 168 having “layered his clothes” in the past showed premeditation and deliberation and a “plan to commit robberies . . . and foil identifications by disguising himself.” (11 RT 4104-4105.)°’ Evidence that appellant said he had used Nu-skin or “layered his clothes” during past robberies did not logically indicate that he was planning a robbery in the future. Even if such evidence were probative of a plan to commit a future robbery using those techniques, it was not probative of a plan to commit the crimehereat issue, as there was no indication that Nu-skin or any disguise was used during the offense. Further, the only way in which the evidence of past robbery suggested a plan or intention to commit future robberies was via an inference of propensity: i.e., a theory that because appellant had committed robbery using techniques for thwarting identification in the past, he was likely to do so again. As such,it was barred by the rule that “the inference of a criminal disposition may not be used to establish any link in the chain of logic connecting the uncharged offense with a material fact.” (Peoplev. Thompson, supra, 27 Cal.3d at p. 317.) >’ Asindicated above (fn. 47, ante), defense counsel objected to evidence of appellant’s reported references to past use of Nu-skin, but not to evidence that while with Webster, appellant bought Nu-skin or materials for a disguise or showed Webster how to use these and other techniques for thwarting identification. (11 RT 4098-4099.) Defense counsel asked the trial court to distinguish past use from present or future use, but the court admitted all reported statements regarding Nu-skin and disguises, without distinguishing statements regarding past use from those regarding present or future use. Although defense counsel did not object specifically to evidence that appellant had used disguises in past crimes, such an objection would undoubtedly have been treated similarly to the objection regarding past use of Nu-skin and would therefore have been futile. Accordingly, the issue is not forfeited. (People v. Welch, supra, 5 Cal.A4th at pp. 237-238.) 169 Fourth, the trial court was mistaken in finding the evidencethat appellant said he was an ex-convict and a bank robberto be inextricably interwoven with appellant’s purported statements regarding the use of wigs, fake tattoos, extra clothes and Nu-skin, and his purported statementto Jerri Baker regarding the pressure he wasfeeling to commit a robbery. (11 RT 4104-4105.) As noted above, defense counsel asked the court to exclude statements regarding past use of Nu-skin, but not those regarding present use. (11 RT 4098-4099.) The two types of evidence were independentof each other; evidence of appellant’s statements about past crimes could easily have been excluded without preventing the prosecutor from presenting evidence of present use. Nor were appellant’s statements about his status as an ex-convict or his past robberies inextricably intertwined with evidence of his statement to Baker in her backyard when hestated he wasfeeling “pressured to commit robberies,” but did not want to spend the rest of his life in prison. (11 RT 3980.) Indeed, before the hearing on Webster’s testimony, thetrial court ruled that appellant’s statement to Baker would be admitted, but the part of that statement in which he reportedly mentionedbeing a “three time loser” and having prior convictions would be excluded as moreprejudicial than probative. (11 RT 4042.) Clearly, it was possible to exclude evidence of appellant’s criminal history andstill admit the rest of the statement which Bakerattributed to him,as the trial court itself had done so. Furthermore, the evidence of appellant’s status as ex-convict was not an inextricable feature of Webster’s testimony. Webster referred to appellant’s status as an ex-convict three times, and on each occasion,the prosecutorraised the subject. Thefirst two times occurred in the context of Webster’s testimony that appellant told her he wanted to move out of her 170 house in order to date other women. (14 RT 4986.) When the prosecutor asked if appellant said this had to do with his being an ex-convict, Webster said it did not. (14 RT 4986.) The third reference wasin the context of Webster’s testimony that appellant told her he wanted a gun. (14 RT 4992 [the prosecutor asked, “[w]hen he told you that he wanted to buy a gun, had he already told you that he was an ex-convict?”].) Webster answered inthe affirmative. (14 RT 4992-4993.) Evidence that appellant said he wanted a gun wascertainly relevant to the charges, but evidencethat, at the time of this statement, he was an ex-convict or that Webster knew he was an ex- convict was not. The references to his criminal history could easily have been excised without jeopardizing the clarity of Webster’s testimony about the gun. b. The Evidence Was Highly Inflammatory and Likely to Have a Prejudicial Effect Thelikelihood of prejudice resulting from the evidence that appellant said he was a bank robber and an ex-convict cannot be underestimated. This is exactly the type of evidence which “uniquely tends to evoke an emotionalbias against the defendantasan individual and which has very little effect on the issues” and which is therefore prejudicial within the meaning of Evidence Code section 352. (See People v. Karis (1988) 46 Cal.3d 612, 638.) Given that appellant was charged with a robbery-murder, evidence that he admitted being a bank robber and committing prior robberies was particularly likely to be viewed as evidenceof criminal propensity, and of guilt of the charged crimes. The inflammatory effect of knowingthat appellant was a convicted felon was also patent. Indeed, even the word “ex-convict” waslikely to elicit an emotional response: 171 6ee Exconvict’ is a hateful word and the jurors would havereadit in defendant’s features as he sat before them asclearly as if it had been written there.” (People v. Ozuna (1963) 213 Cal.App.2d 338, 342.) c. It Was Unlikely That the Jury Would Be Able to Comply with the Limiting Instruction Asset forth above, some evidenceis so inflammatory thatit is likely that no juror could comply with an instruction to considerit only for particular purpose. (See section B.1.c, ante.) Here, even the prosecutor was unable to do so. In his opening statement, he indicated that the appellant’s statements to Webster were not being introduced fortheirtruth. (11 RT 4136.) However, he himself treated the statementas true, stating that Baker was aware that appellant was an ex-convict (11 RT 4139) and “the defendant couldn’t buy ammunition becauseofhis status. And, by the way, obviously, he couldn’t buy the gun either.” (11 RT 4138.) These assertions suggestthat the prosecutor himself misunderstood or forgot the limited facts appellant’s statements were admitted to prove. If the “legally- trained prosecutor” was so confused about what the evidence served to provethat he “was unable to limit” his argument about them to the effect that they had on Webster, “we can safely infer” that the “lay jurors” were also confused about how they could use that evidence: (People v. Fletcher (1996) 13 Cal.4th 451, 471.) Similarly, it strains credulity to posit that the jury wasable to ignore the evidence that appellant said he had committed prior robberies or bank robberies, and regard that evidence only forits effect on Webster’s state of mind. Even thoughthe jurors may well have tried diligently to limit their consideration in that manner, human beings simply are not able to compartmentalize their thinking to that degree. 172 Inevitably, they could not help but considerforits truth, as evidence that appellant had committed prior robberies and had beento prison. In sum, evidence that appellant told Webster that he was an ex- convict and a bank robber and that he told her about bank robberies or other robberies that he had committed in the past showedlittle if anything about Webster’s credibility. The probative value was minimalat best, but the likelihood of prejudice was enormous. Putting before the jury evidence that appellant was a convicted felon and an admitted robber, the very crime with which he was charged, made it extremely likely that jurors, even if conscientious, would not be able to limit their consideration of the evidence to its relevance to Webster’s credibility. Rather, it was virtually inevitable that they would consider it as evidence that appellant had a propensity for robbery and that he was therefore morelikely the person who had committed the charged crimes. Admitting the evidence wasa clear abuse of the trial court’s discretion. 3. Appellant’s References to Having Hurt and Killed People in the Past Wereof Little Probative Value but Were Extremely Likely to Have a Prejudicial Effect . Evidence that appellant told Mary Webster he had “bumped a couple people off’ (14 RT 5021), “knocked people off’ (14 RT 5032), “slapped” people (14 RT 5032), and “got[ten] rid of” his former getaway driver who had “snitched him off’ (14 RT 5044), while admittedly of some relevance to Webster’s fears, was not probative enoughto justify its admission. The evidence wasvirtually certain to be considered as evidence that appellant had a propensity for violence and killing. No limiting instruction was capable of counteracting the prejudicial effect of such inflammatory and sensational evidence. Furthermore, no limiting instruction was given 173 concerning the evidencethat he said he had “bumped people off,” “knocked 58 makingit all the morecertain that thepeople off” or “slapped people, evidence would have a prejudicial effect and all the more clear that the admission of the evidence wasan abuseofdiscretion. a. The Probative Valueof the Evidence Was Low Like the evidence of appellant’s his altercations with Nivens and Hobson andhis other statements regardinghis past, the evidence that appellant told Webster he had bumped people offor gotten rid ofpeople was cumulative and of low probative value because it was admitted to show facts that were undisputed and wereestablished by other evidence. The evidence that appellant told Webster he had gotten rid of a former getaway driver was admitted to show “that the statement was madeto her and what effect it had on her.” (14 RT 5044.) The court found that such evidence tended to explain her indecision about turning the bloody clothes in to the police. (11 RT 4112-4113.) The court found Webster’s stories about hurting people relevant “to explain why Mary Webster was impressed and intrigued with [appellant] and why she followedhis instructions after he gave her the bloody clothes and the gun.” (11 RT 4108.) However,it was not appellant’s stories, but the emotions that they produced — Webster’s fear of retaliation if she turned appellantin, her fear that he would kill someone else, her love for him andintrigue with him -- that explained her conduct. As shownabove,appellant did not dispute the evidence that Webster 8 As noted above(see fn. 53, ante), appellant does not argue on appealthat the trial court erred in failing to give a limiting instruction, but the absence of such an instruction is nevertheless relevant to the prejudice that flowed from the court’s error in admitting the evidence. 174 harbored those feelings. (See section B.1.a, ante.) Therefore, the reasons for those feelings were of minimal if any probative value. Admittedly, Webster testified that appellant’s statement about having gotten rid of a former getaway driver had caused her to fear coming forward. (14 RT 5044.) However, as set forth more fully above (see section B.1.a.3, ante), evenif all of the evidence to which appellant objected had been excluded, there would have been ample evidence of Webster’s fear. Indeed, her statement that she had refusedtotestify because she wasafraid to “go in front of [appellant]” (14 RT 5043) and afraid for her life (14 RT 5044) was uncontroverted, as was Arlene Eshelman’s testimony that Webster was afraid appellant would retaliate (15 RT 5262). Evidence of appellant’s statement about the getaway driver was not necessary to explain or substantiate Webster’s fear. Moreover, to the extent the reasons for Webster’s fears were relevant, defense counsel stated they would not object to evidence that her fear was based on statements appellant had made abouthis background, generally. (11 RT 4098.) Thus, to the extent that the specific statements that Websterattributed to appellant about having killed before were relevant to establishing Webster’s fearfulness, they were cumulative of other evidence. Further, because the evidence of appellant’s statements camesolely from Webster’s owntestimony,it was particularly lacking in probative value on the issue of her credibility, both because it was not independentof the evidence of the charges (People v. Ewoldt, supra, 7 Cal.4th at pp. 404- 405 [probative value of other crimes evidence is diminished where witness is aware of the circumstancesofthe current charges, as her account may have been influenced by that knowledge]) and because it wasself-serving (id. at pp. 407-408 [other crimes evidenceis of diminished probative value 175 on the issue of a witness’s credibility when the only evidence ofthe other offenses consists of uncorroborated testimony from the witness]). For the foregoing reasons, the probative value of the evidence was low. | b. The Evidence Was Extremely Inflammatory, and Prejudicial Effect Wasa Virtual Certainty Webster’s testimony that appellant suggested he had committed or arranged murders in the past was exceedingly inflammatory, particularly in light of the fact that this was a murder prosecution. (See People v. Brown, supra, 17 Cal.App.4th 1389, 1396-1397 [evidence of other crimes inadmissible per section 352 when evidence wasrelevant only to a witness’s credibility and involved the sametype of crimes as those charged].) Webster’s testimony suggested that appellant had killed before, and more than once. Moreover, his reported use of language — having “bumped a couple people off,” “knocked people off” and “got[ten] rid of” people — implied a cavalier attitude about having done so. Even without any additional information regarding the nature or circumstances of appellant’s claimedprior crimes, appellant’s reported admissions were so inflammatory that the jury surely remembered and considered that evidence for the remainderofthe trial. Like the evidence of appellant’s assaults on Nivens and Hobson (see section B.1.b, ante), the prejudicial effect of the evidence was heightened by the implication that he had not been convicted of or punished for the other crimes to which he referred. As noted above, that circumstance increases both the dangerthat the jury will punish the defendant for the uncharged offense and “the likelihood of ‘confusing the issues,’” as the jury 176 must determine whether the uncharged offenses occurred. (People v. Ewoldt, supra, 7 Cal.4th at p. 405; see People v. Falsetta, supra, 21 Cal.4th at p. 917.) Regardless of the fact that the evidence did not establish that appellant had actually committed the other offenses as he claimed, the danger was the same: as a result of the evidence, appellant “would be portrayed as a dangerous person morelikely than others to have committed the present offense.” (See People v. Thompson, supra, 45 Cal.3d at p. 109 [prejudicial effect of evidence that the defendant planned other offenses was similar to that of evidence that he had actually committed them].) c. Despite the Limiting Instruction, There Was an Overwhelming Probability That the Jury Would Consider the Evidence as an Indication That Appellant Had a Propensity for Violence Asset forth above, in somecasestherisk that jurors will not be able to follow a limiting instruction are so high and the consequencesofthat inability so unfair to the defendant that such an instruction is an insufficient safeguard againstthe risk ofprejudice. (See section B.1.c, ante.) This is one of those cases. The “mental gymnastics” the limiting instructions required the jurors to undertake — i.e., considering the evidence that appellant said he had gotten rid of his former crime partner only forits effect on Webster and not as proofthat he in fact killed the person or had the person killed — were clearly beyond the powers of most jurors. (People v. Coleman, supra, 38 Cal.3d at p. 92.) In addition to the fact that the statement regarding getting rid of the getaway driver was so inflammatory that the limiting instruction could not 177 have been effective, the evidence that appellant said he had “bumped a couple people off” (14 RT 5021), “knocked people off’ (14 RT 5032) and “slapped people” (14 RT 5032) were subject to no limiting instruction whatsoever. The jury was therefore free to consider that testimony in any way it chose, including as evidence that appellant had a criminal disposition and a propensity to commit murder and therefore as evidence ofhis guilt. Both because the evidenceat issue was so inflammatory that the court’s limiting instruction could not have been effective and because the jury received no limiting instruction with respect to several of appellant’s alleged statements, it was particularly likely that the jury would consider the evidenceat issueforits prohibited purpose:that is, as criminal propensity evidence. Presented with such inflammatory evidence of other crimes, appellant’s jury surely experienced the “over-strong tendencyto believe the defendant guilty of the charge merely becauseheis a likely person to do such acts.” (LA Wigmore, Evidence (Tillers rev. ed. 1983), § 58.2, p. 1215.) Forall of these reasons, thetrial court’s ruling admitting the evidence was an abuse ofdiscretion. 4. ° The Challenged Portions of Webster’s Interview with Detectives Were More Prejudicial than Probative Asset forth above (see section A.4, ante), the trial court admitted segments of the taped interview of Mary Webster in which the officers repeatedly asserted that appellant was responsible for the murders at The Office and that he was a threat to Webster’s safety as long as he remained a free man. (18 RT 6338-6341; 23 Aug CT 6611-6649; Exhibit 94-A [redacted tape played for the jury].) Thetrial court admitted the evidence to show Webster’s state of mind at the time of the interview andthe nature of 178 her relationship with appellant (2 CT 515-516; 23 RT 7616-7617), on the theory that it showed Webster’s resistance to believing that appellant had committed the crimes at The Office. (18 RT 6173, 6176, 6178, 6181, 6183, 6184, 6185, 6187, 6190.) Although of some relevance, Webster’s stated resistance was amply established by other evidence. The officers’ opinions as to appellant’s guilt and future dangerousness were so inflammatory and highly prejudicial that no limiting instruction could have effectively counteracted their prejudicial effect. The admission of the evidence was an abuse of discretion a. Webster’s Resistance to Believing Appellant Might Be Guilty Was Shown by Other Evidence Evidence of Webster’s resistanceto the idea that appellant was responsible for the murders at The Office was relevant to the extentit tended to show that she was not attempting to frame him. However, the portions of the interview to which appellant did not object provided ample evidence of that fact. Had all of segments of the interview to which appellant objected been redacted out, the jury would nevertheless have - heard that after the detectives told Webster about the double homicide in Rancho Cordova (23 Aug CT 6668[p. 19], lines 10-12), Webster asked, “why would hetell methis other story?” (23 Aug CT 6669 [p. 20], line 7) and stated “‘you’re going to find whoeverkilled...” (23 Aug CT 6669 [p. 20], line 21). They would have heard that the detectives told Webster a 70- year old woman waskilled (23 Aug CT 6670 {p. 21], line 3) and money was taken (23 Aug CT 6671, line 14-15), and that Webster then said, “how could it be?” (23 Aug CT 6671 [p. 22], line 22), “I think you’re wrong aboutthis. . . . I don’t think he did this one” (23 Aug CT 6672 [p. 23], lines 179 18-19), “I think you... got the wrong person for this” (23 Aug CT 6673 [p. 24], line 2-3), “Why would he lie?” (23 Aug CT 6673 [p. 24], line 9), ‘““Why would he tell me Del Paso Heights when it was in Rancho Cordova?” (23 Aug CT 6674, lines 10-11) and “Maybe you better check your records. I’m sure you found someonefor these two people” (23 Aug CT 6674,lines 16- 17). Butthis is not all the jury would have heard. The jurors also would have heard that the detectives assured Webster that they had not found anyone else who could have committed the killings at The Office and that they had been “out there”at the crime sceneall night. (23 Aug CT 6674 [p. 25], lines 18, 20, 21, 23-25.) They would have heard that Webster then said, “He don’t need money that bad” (23 Aug CT 6675 [p. 26], line 6), and Edwardssaid, “But, he had money,” and “Suddenly he had money” (23 Aug CT 6675[p. 26], lines 7, 10). They would have heard that Webster said, “I can’t believe this one” (23 Aug CT 6675 [p. 26], line 15), “Wait, wait. Wait. Explain this tome one more time... . is this for real?” (23 Aug CT 6676 [p. 27], lines 9-11) and “But, what’s the reason? ... Fora hundred bucks? ... And he gave it to me? That doesn’t even make sense” (23 Aug CT 6679[p. 30], lines 5-6, 8, 16-17). Further, the jury would have heard that Reed said, “I know you don’t wantto believe it, Mary. First of all, we believe it. We’re trying to convince you. ... Got the blood, the blood on his boots andall that... ,” (23 Aug-CT 6680 [p. 31], lines 19-21, 24-25) and that Edwardssaid that appellant might kill Webster if he thought she might put two and two together (23 Aug CT 6681-6682 [pp. 32-33]). They would have heard that close to the end of the interview, Webster again said, “maybethis is not really for real” (23 Aug CT 6686 [p. 37], line 28), but then agreed to go to 180 her house with the detectives and give them the gun (23 Aug CT 6688-6689 [pp. 39-40]). In addition, Reed testified that Webster wasresistant to believing that appellant had committed the killings at The Office and to handing over the gun (20 RT 6694), and Webster herself testified that even after appellant was arrested, shestill did not believe he wasthe right man (14 RT 5042-5043). Thus, the segments of the tape to which appellant objected were completely unnecessary to establish that during her interview with law enforcement on the day after the killings, Webster displayed resistance to believing that appellant was responsible for the killings at The Office. b.. The Officers’ Statements to Webster Were Inflammatory and Highly Prejudicial The challenged portions of the tape included a numberofprejudicial assertions on the part of the detectives. The officers asserted that appellant waslying whenhe told Webster he had shot two men over a poker game. (23 Aug CT 6671 [p. 22], lines 3-6, 8, 10; 23 Aug CT 6674 [p. 25], lines 14-15.) They told Webster what they believed were the reasons for which appellant told Webster that story. (23 Aug CT 6669 [p. 20], lines 11-16; 23 Aug CT 6675 [p. 25], lines 22-24, 26-27.) They asserted that appellant had committed the killings at The Office (23 Aug CT 6668 [p. 19], lines 24-26, 28; 23 Aug CT 6676,lines 4, 7-8; 23 Aug CT 6678 [p. 29], line 7; 23 Aug CT 6684 [p. 35], lines 19-22; 23 Aug CT 6685[p. 36], lines 11, 12-13) and their reasons for coming to that conclusion (23 Aug CT 6670 [p. 21], lines 5-28; 23 Aug CT 6674 [p. 25], lines 26-28, 23 Aug CT 6675,Lines 1-2, 4- 5; 23 Aug CT 6685 [p. 36], lines 22, 25, 27-28; 23 Aug CT 6686 [p. 37], lines 1-2, 4). Lastly, the evidence to which appellant objected included 181 several other highly inflammatory statements by the detectives, including repeatedly characterizing appellant as wanting to “boast” about having killed (23 Aug CT 6669[p. 20 ], line 11; 23 Aug CT 6670 [p. 21], line 28), stating that appellant wanted to “look like a big man” and make Webster fear him (23 Aug CT 6675 [p. 26], lines 26-27), that he might kill Webster if he remainedat large (23 Aug CT 6681-6682 [pp. 32-33]) and that Webster should be afraid as long as appellant wasnot in custody (23 Aug CT 6685 [p. 36], lines 8-9). Certainly, if the prosecutor had attempted to introduce anyofthese opinions directly through live testimony, they wouldhave been inadmissible. The statements were not admissible as lay or expert opinion testimony. (Evid. Code §§ 800, 801.) The officers’ opinions as to appellant’s guilt were inadmissible as lay opinion testimony because the officers did not witness the crime. (Evid. Code § 800, subd. (a); People v. Farnam (2002) 28 Cal.4th 107, 153.) Even if the officers had been qualified as experts, an expert witness’s opinion concerning the guilt or innocenceofthe defendantis inadmissible. (People v. Torres (1995) 33 Cal.App.4th 37, 46-47; People v. Brown (1981) 116 Cal.App.3d 820, 829; People v. Clay (1964) 227 Cal.App.2d 87, 98-99.) By allowing the prosecutorto play the portions of the tape containing the detectives’ assertions and opinions because oftheir purported relevance to Webster’s credibility, the trial court allowed the prosecutor to make an end runaround established rules of evidence and exposedthe jury to otherwise inadmissible and highly prejudicial evidence. The statements of the investigating officers who,in the eyes of the jury, likely carried an aura of inherent authority and special knowledge, were likely to have a highly prejudicial and inflammatory effect because 182 they went to the central issue in dispute at appellant’s trial: the identity of the killer. The statements werelikely to cause the jury to dislike and fear appellant, whom the officers characterized as not only a murderer, but also a liar who would kill his ex-girlfriend whostill loved him in spite of the fact that he had left her for another woman. Even more problematic, the jury could not_possibly have disregarded the officers’ repeated assertions that appellant had committed the crimes at issue and regarded those statements solely for their effect on Webster’s state of mind. c. The Limiting Instruction Was Ineffectual Althoughthetrial court instructed the jury that the detectives may have shadedthe facts in an effort to persuade Webster to cooperate and that their statements were not being offered for their truth (18 RT 6340-6341),it is nevertheless highly unlikely that the jury was able to disregard the content of the assertions that the officers made to Webster. In part by dint ofpure repetition, but also by virtue ofthe officers’ status and the jury’s likely assumption that the officers had information to which the jury was not privy, the jurors could not have helped but be swayed by the officers’ repeated and emphatic assertions of appellant’s guilt and dangerousness, the theories they provided regarding appellant’s behavior. Under the circumstances, it was unlikely that the jury would follow the instruction to limit its consideration of the tape to Webster’s state of mind and the nature of her relationship with appellant. It was far more likely the jury would consider the officers’ statements as evidence of appellant’s guilt. The likelihood that the jury would not be able to follow the limiting instruction weighed heavily in favor of exclusion. In sum, the probative value of the evidence was scant, as Webster’s 183 state of mindat the time of the interview was of minimalor no relevance. The evidence was cumulative, as ample other evidence showed Webster’s initial resistance to believing that appellant had committed the crimes charged. The jury was unlikely to be able to limit its consideration of the detectives’ statements to the purpose of showing Webster’s state of mind, and the evidence was highly inflammatory. For these reasons, it was an abuse ofdiscretion pursuant to Evidence Code section 352 to admit the evidence. Cc. The Erroneous Admission of the Evidence Resulted in a Miscarriage of Justice That Requires Reversal of Appellant’s Convictions and Death Sentence Understate law, reversal of the guilt verdict is required if there is a reasonable probability that appellant would have achieved a more favorable result in the absence of the erroneously admitted evidence (Peoplev. Watson (1956) 46 Cal.2d 818, 836) or if the admission of the evidence gave rise to a miscarriage ofjustice within the meaning ofarticle VI, section 13, of the California Constitution (People v. Green (1980) 27 Cal.3d 1, 26). _ Reversal of appellant’s conviction and death judgmentis required under either of those standards. At the guilt phase, the central issue for the jury to decide was the identity of the killer. As set forth above, the properly admitted evidence of appellant’s actual connection to the charged crimes was marked by inconsistencies and evidentiary gaps. (See ArgumentI.E, ante.) No eyewitnesses or fingerprints connected appellant to the crime scene or the gun used in the crime. The evidence concerning whether appellant was wearing the blood-stained shirt and boots on the night in question was conflicting. The murder weapon did not match the descriptions of the gun 184 in appellant’s possession shortly before the murders. The location of the blood stains on the shirt and boots in evidence, the absence of bloodstains in Baker’s car and the amounts ofmoney that appellant had before and after the killings were inconsistent with the prosecution’s theory of the crime. Indeed, Webster’s own testimony was internally inconsistent and was contradicted by other witnesses. The prosecution obscured the inconsistencies in its case and filled the evidentiary gaps with inflammatory evidence of appellant’s history of violent and criminal acts and the investigating officers’ certainty that he wasthe killer. The evidence of uncharged crimes “served only to prey on the emotions of the jury, to lead them to mistrust [appellant], and to believe more easily that he was the type... . who would kill . . . without much apparent motive.” (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1385.) Individually and cumulatively, the evidence that appellant told Webster he was a bank robber and an ex-convict, that he regaled her with stories about robberies, thathe had “bumped people off,” (14 RT 5021), “knocked people off’ (14 RT 5032) and slapped people (14 RT 5032), and that he had “got[ten] rid of-a former crime partner (14 RT 5044), as well as the percipient witness testimony that he had physically assaulted Hobson and ~ Nivens (14 RT 4981-4984; 15 RT 5273-5315, 5325-5327; 17 5973-5975, 5985-5994, 5958-5959), could only have been viewed as evidence of appellant’s propensity for violence and criminal disposition. The evidence not only invited the jury to convict based on appellant’s propensity for violence and criminal disposition, but by its inflammatory nature, obscured the inconsistencies in Webster’s statements and testimony and the conflicts between her statements and the other evidence. The evidence of appellant’s statements regarding his criminal 185 past and ofhis altercations with Webster’s roommate and son enabled the prosecutor to paint a picture of Webster as appellant’s “lapdog” (22 RT 7366), a pathetic and hapless victim, while he portrayed appellant as a vicious professional criminal, an unintelligent braggart who captivated, manipulated and dominated her. (See, e.g., 22 RT 7324-7325, 7329, 7353.) By attacking appellant’s character and building sympathy for Webster, the evidence enabled the prosecutor to appeal to the jury’s emotions and disregard the evidence of Webster’s dishonesty and the inconsistencies in her testimony. Whether considered on its own or in combination with the other evidence admitted for the purported purpose of supporting Webster’s credibility, the erroneously admitted portions of Webster’s taped interview with Reed and Webster were also prejudicial. The jury could not have helped but be swayed by Reed’s and Edwards’ repeated and emphatic assertions that appellant was responsible for the killings at The Office. Given that those statements were coming from the law enforcementofficers who had investigated the crimes, the jury could not possibly have regarded them merely as techniques for securing Webster’s cooperation. The jury’s view of appellant was certainly influenced by the detectives’ inadmissible and inflammatory assertions that appellant waslikely to kill again and that Webster was in danger as long as he remained onthestreet. Asset forth above, the limiting instructions whichthetrial court gave were insufficient to protect against the prejudicial effect of the evidence, and the ineffectiveness ofthose instructions is an important factor in assessing whether the admission of the evidence was an abuse of discretion. (See section B.1.c, ante.) The limiting instructions or lack thereofare also a critical aspect of the record to be considered in 186 determining whetherthe erroneousintroduction of inadmissible evidence wasprejudicial. (See, e.g., People v. Guiton (1993) 4 Cal.4th 1116, 1130 [assessment of prejudice under state law requires examination ofentire record, including jury instructions].) With respect to the evidencethat appellant said he had “bumped people off’ or “knocked people off” in the past,the trial court gave the jury no limiting instruction whatsoever. (See 2 CT 515-516; 23 RT 7616-7617.) The jury was therefore free to regardit as evidence of appellant’s propensity for murder and therefore ofhisguilt. Giventhat this was a murder case and the statements concerned prior _ killings, it is extremely likely that the jury did exactly that. On the basis of the erroneous admission of this evidence alone, reversal is required. With respect to the evidence that appellant assaulted Nivens and Hobson,that he said he was an ex-convict and a bank robberandthat he claimed to have gotten rid of a former crime partner who had “snitched”on | him, as well as evidence of the statements made to and by Websterin her interview with Reed and Edwards,limiting instructions were given. (14 RT 4993, 5044; 23 RT 7616-7617; 2 CT 515-516.) However, the instruction that the jury could consider the evidence on the issue of the nature of Webster’s relationship with appellant (2 CT 515-516; 23 RT 7616-7617) was so vague and ambiguousthatit is reasonably probable that the jury interpreted it as permission to consider the evidence as an indication of appellant’s character, as his character was relevant to the relationship. (See People v. Brown, supra, 17 Cal.App.4th 1389, 1397-1398 [ambiguous language in instruction invited jury to consider defendant’s criminal propensity].) Evenasto the limiting instructions that properly instructed the jury to limit its consideration of the evidenceto its effect on Webster’s state of 187 mind and not to consider the statementsastrue,it is likely that the jurors were unable to abide by that limitation. Indeed, the prosecutor himself was confused about the permissible uses of the evidence appellant challenges. In his opening statement, the prosecutor stated as fact that appellant was an ex-convict, even thoughthetrial court already had issuedits in limine ruling that appellant’s statements to Webster concerning his status and past were not being admitted for their truth. (11 RT 4139.) In closing argument, the prosecutor stated that appellant “used to tell [Webster] stuff all the time, almost nightly, when he wasliving with her about his escapades,his criminal background.” (22 RT 7324.) Again, such statements signaled the jury that appellant’s stories were true andthat he did in fact commit “escapades” (14 RT 4973) and have a criminal background. The prosecutor argued that appellant was “a criminal — not goodat it, but just simply a criminal” (22 RT 7552), a “professional criminal” (22 RT 7336) and a “vicious” one at that (22 RT 7325). The prosecutor treated the evidenceat issue as-evidence of appellant’s actual criminal disposition, not as evidence of what Webster thought about appellant’s character. Given that the prosecutor, a trained and experienced legal professional, was confused about the appropriate use of the evidence andthe application of the limiting instruction, the jurors, lay people without any legal training or experience, certainly must have been as well. (People v. Fletcher, supra, 13 Cal.4th at p. 471.) Without Webster’s testimony, the evidence tying appellant to the crimes was at most weak, conflicting and circumstantial. Webster’s testimony and credibility werecritical to the prosecution’s case. If the jury had found that Webster was not credible or found plausible defense counsel’s argument suggestion that Webster set appellant up, it would 188 surely have also found reasonable doubt that appellant was the killer. The trial court recognized the importance of Webster’s testimony, and the prosecution exploited that fact as an opportunity to bolster her less than sterling credibility. Oncethetrial court ruled in limine that evidence of appellant’s criminal history was admissible through Webster, numerous other witnesses were permitted to testify regarding their knowledge of appellant’s criminal background. (See, e.g., 12 RT 4503 [Stacey Billingsley]; 13 RT 4564 [Greg Billingsley]; 13 RT 4751 [Burlingame]; 17 RT 5808 [Voudouris], 5865 [Curley]; 18 RT 6076 [Baker].) Thus, the court’s rulings regarding the evidence offered on the issue of Webster’s credibility resulted in a free-for- all assassination of appellant’s character. Without even an attemptto limit the jury’s use of the evidence that appellant had killed before and with evidence so sensational and inflammatory that the limiting instructions that were actually given were ineffectual, it is inevitable that the jury regarded the evidence as an indication that appellant had a propensity for violence and criminal conduct, particularly robbery. Given the weaknesses and inconsistencies in the prosecution’s case, the evidence of appellant’s other crimes tipped the scales toward conviction and encouragedthe jury to disregard any reasonable doubt. It was only because ofthe highly inflammatory and inadmissible evidence of appellant’s bad character that the prosecution was able to convince the jury that appellant was guilty of the crimes charged and that Webster was not a conniving and vengeful jilted lover who conspired with her brother to frame appellant, but was a subservient, pathetic patsy. Further, the erroneously admitted evidence of appellant’s other crimes undoubtedly affected the jury’s penalty verdict, as the trial court 189 instructed that unadjudicated acts of force or violence or the threat of force or violence could be considered as circumstances in aggravation. (CALJIC No. 8.87; 3 CT 616; 25 RT 8430-8431.) For the foregoing reasons, there is a reasonable probability that in the absence of the erroneously admitted evidence, at least one juror would have had a reasonable doubtas to appellant’s guilt and would have refused to convict. (People v. Bowers (2002) 87 Cal.App.4th 722, 736 [‘“a mistrial[is] a more favorable result for defendant than conviction” under Watson standard].) In the alternative, there is a reasonable possibility that in the absence of the erroneously admitted evidence, at least one juror would not have voted for the death penalty. (People v. Brown (1988) 46 Cal.3d 432, 447-448 [adopting reasonable possibility standard for penalty phaseerror].) Thetrial court’s errors, individually and cumulatively, were prejudicial. Appellant’s convictions and death sentence must be reversed. D. The Erroneous Admission of the Evidence Renderedthe Trial Fundamentally Unfair In Violation of the Due Process Clause ofthe Fourteenth Amendment The erroneous admission of the evidence not only resulted in a miscarriage ofjustice understate law, but also deprived appellant ofhis right to a fair trial under the Due Process Clause ofthe Fourteenth Amendment.” The Supreme Court has recognized that the improper °° Priorto trial, the trial court granted appellant’s request to deem all of his objections understate statute to have been made pursuantto the California and United States Constitutions as well. (1 RT 1018; 2 CT 308- 310.) Thus, appellant preserved the federal constitutional claim raised herein. His trial objections based on section 352 preserved that claim as well. (See People v. Partida (2005) 37 Cal.4th 428, 433-439 [defendant’s (continued...) 190 admission of evidence may violate the constitutional right to a fair trial (See Estelle v. McGuire (1991) 502 U.S. 62, 67.) The question is whether the evidence “‘so infected the trial with unfairness as to makethe resulting conviction a denial of due process.’” (Romano v. Oklahoma (1994) 512 U.S. 1, 12-13, quoting Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) The answer requires an “examination of the entire proceedings in [the] case.” (DeChristoforo, supra, 416 U.S.at p. 643; see Estelle v. McGuire, supra, 502 U.S. at p. 72 [judging challenged instruction in the context of the instructions as a whole and the entire trial record]; Darden v. Wainwright (1986) 477 U.S. 168, 182 [considering prosecutor’s improper argumentin the context of defense counsel’s argument, the trial court’s instructions and the overwhelming evidence of guilt on all charges].) This comprehensive review is necessary because the conclusion that the challenged error renderedthetrial so unfair as to violate due processis a finding of reversible constitutional error. If the error so corruptsthe trial that it is fundamentally unfair, it cannot be deemed harmless. In this way, proof of the due process violation incorporates an assessmentthat the error mattered, i.e., that the error likely affected the verdict. . The unfairness of the evidenceat issue is patent. All the factors discussed in Section C, ante, that made the error a miscarriage ofjustice also madeit a due processviolation. | Appellant did not put his own credibility in issue, and even if he had, evidence of unadjudicated bank robberies, murders and assaults would have been inadmissible for impeachment purposes. However, for the purpose of bolstering the °° (...continued) trial objection under section 352 rendered cognizable on appeal his claim that admission of gang evidence violated his due processrights].) 191 credibility of a prosecution witness, the trial court permitted the prosecutor to put before the jury a raft of evidence of appellant’s other crimes and bad character that served to inflame the jury’s emotions and hinderits ability to carefully and rationally assess the prosecution’s case for guilt. The net result of admitting this evidence wasto relieve the jury of any qualmsit might have had about Webster’s credibility, not because the evidence showedherto be a trustworthy witness, but because it showed appellant to be a violent man with a criminal past, precisely the type of person who would commit a double robbery-murder. The evidence of appellant’s other crimes and acts of violence, as well as the evidence of the investigating officers’ repeated assertions oftheir certitude regarding his guilt, both cumulatively and individually, were “so inflammatory as to prevent a fair trial.” (See Duncan v. Henry (1995) 513 U.S. 364, 366.) In McKinney v. Rees, supra, 993 F.2d 1378, the Ninth Circuit held that the erroneous admission of “other crimes evidence violate[s] due process where: (1) the balance of the prosecution’s case against the defendant was ‘solely circumstantial;’ (2) the other crimes evidence . . . was similar to the [crimes] for which he was ontrial; (3) the prosecutor relied on the other crimes evidence at several points during the trial; and (4) the other crimes evidence was ‘emotionally charged.’” (Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, 775, rev'd other grounds in Woodford v. Garceau (2003) 538 U.S.202, citing McKinney v. Rees, supra, 993 F.2d at p. 1384.) Here, there was no direct evidence of appellant’s guilt, and the prosecution case rested entirely on circumstantial evidence. As shown above(see ArgumentI.E, ante), that evidence was markedby significant gaps and inconsistencies. No fingerprints tied appellant to the crime scene,the murder weapon, the box that it was in or the moneythat appellant 192 reportedly gave Webster on the night of the crime. The amountof cash that appellant had after the crime did not match the amountthat was stolen. The evidence concerning what appellant was wearing on the night of the murders and whether he had on the clothes which Webster later handed over to police was conflicting. The pattern of bloodstains on the shirt and boots and the lack of blood in Jerri Baker’s car were not consistent with the prosecution’s theory of the crime. Regarding the similarity of the other crimes to the charged crimes, Webster’s testimony suggested that appellant had committed other murders and robberies (14 RT 4971, 5021, 5032, 5044), the very crimes for which appellant was prosecuted in this case. The evidence regarding the assaults on Nivens and Hobson (14 RT 4981-4984; 15 RT 5177-5280; 17 RT 5974- 5976), while not involving robbery or murder, obviously involved a readiness to do physical violence to others, as did the charged crimes. Webster’s testimony that appellant told her nightly stories about his past crimes (14 RT 4971, 4985) and that appellant talked about having committed crimes using disguises and other means of thwarting identification (14 RT 4972, 4974-4975) suggested that appellant was a _ professional criminal. The prosecutor relied on the evidence of the assaults on Nivens and Hobson and appellant’s statements regarding his prior crimes as a significant part of his case-in-chief and as a focus of his argumentto the jury. Once he had successfully convinced the court that appellant’s statements regarding his criminal history were admissible through Webster’s testimony, he proceededto elicit testimony regarding appellant’s criminal history from several other witnesses. From Stacey Billingsley, Greg Billingsley and Sue Burlingame,he elicited testimony that appellant 193 said he was a robberor a bank robber. (12 RT 4503, 4564, 4749.) Through the testimony of Brian Curley and Jerri Baker, he presented further evidence that appellant had committed multiple robberies. (17 RT 5865; 18 RT 6076.) From Ted Voudouris and Stacey Billingsley, he elicited additional testimony that appellant said had been to prison or was an ex- convict. (12 RT 4503; 17 RT 5808.) In closing argument, he repeatedly mentioned the assaults on Nivens and Hobson. (22 RT 7326, 7442.) He also repeatedly labeled appellant a professional criminal (22 RT 7252, 7336, 7552) and painted him as “vicious” (22 RT 7325) and determined not to return to prison (22 RT 7297). The evidence of appellant’s other crimes was more emotionally charged than the evidenceat issue in McKinneyitself, which involved the defendant’s possession of two knives. (McKinney v. Rees, supra, 993 F.3d at p. 1382.) Whether considered individually or collectively, the evidence that appellant admitted having killed more than once before and his statement that he had “got[ten] rid of’ a former crime partner, as well as the evidence of his ex-convict status, his assaults on Nivens and Hobson and his statements regarding prior robberies and bank robberies, were extremely inflammatory. Such evidence was far more likely than knife possession to provokein the jury an emotional response such as revulsion, fear, anger, hatred or the urge to punish appellant for crimes which had previously gone °° Beforethetrial court ruled on the admissibility of Webster’s testimony regarding appellant’s criminal history, defense counsel had persuadedthe court to exclude Jerri Baker’s references to appellant’s criminal history. (11 RT 4041-4042.) However, once the court ruled that Webster would be permitted to testify that appellant had told her he was an ex-convict and a bank robber, additional efforts to exclude similar references by other witnesses would have beenfutile. 194 undetected. An assessment of the McKinney factors reinforces what is otherwise obvious: admitting the wide array of damning character evidence which the court permitted in this case inevitably impaired the jury’s ability to properly assess the remaining evidence. The primary issue in dispute at the trial was the identity of the perpetrator. By indicating that appellant was not only capable of killing, robbery and unprovokedacts of violence, but also was a career criminal, seemingly proudof his criminal exploits, the evidence foreclosed any rational assessmentof the actual connection or lack thereof between appellant and the crimes for which he was beingtried. The result wasa trial that was fundamentally unfair. An error which so corrupts thetrial as to render it fundamentally unfair cannot be deemed harmless. In this way, proof of the due process violation incorporates an assessment that the error mattered,i.e., that the errorlikely affected the verdict. Thus, the foregoing showing requires that the entire judgment must be reversed. Appellant need not make any further showing of prejudice. Even if the federal harmless error test applies to this due processviolation, the state cannot show that the error was harmless beyond a reasonable doubt under Chapmanv. California (1967) 386 US. 18, 24. Appellant’s convictions and death sentence must be reversed. i/ // 195 Il THE TRIAL COURT ERREDIN ADMITTING EVIDENCE THAT APPELLANT HAD SOLICITED GREG BILLINGSLEY AND BILLY JOE GENTRY TO COMMIT OTHER CRIMES During the guilt phase, the trial court granted the prosecutor’s request to present testimony from Greg Billingsley that approximately one to two monthspriorto the killings at The Office, appellant asked him if he wantedto steal the bank deposit from the Crestview bowling alley, where the two men often bowled together. The court also allowed the prosecutor to present the testimony of Billy Joe Gentry that on Halloween, 1992, approximately eight months before the killings, appellant asked him if he wantedto be the driver for a hold-up. Admitting this testimony was prejudicial error under state law and the federal Constitution. A. The Trial Court Admitted Evidence That Appellant Had Invited Greg Billingsley and Billy Joe Gentry to Participate in Robberies Which Had No Connection to the Charged Crime Overa lunch break taken during his cross-examination by defense counsel, Greg Billingsley approached the prosecutor and told him for the first time that appellant had asked him if wanted to commit a robbery together. (13 RT 4599-4600.)*' Out of the jury’s presence, a hearing was held on the admissibility of this testimony. Billingsley testified that °! WhenBillingsley talked to the prosecutor duringthe lunch break, he said he was madabout the questions that defense counsel had been asking him on cross-examination. (13 RT 4597-4600.) However, he denied that it was because he wasupset about the cross-examination that he had come forward with the allegation about the solicitation; he said that he was simply abiding by the oath to tell the whole truth. (13 RT 4606.) 196 approximately one to two monthspriorto the killings at The Office, appellant asked him if he wanted to do “ajob” together. (13 RT 4599.) Appellant said he knew of a “good scam,” a way to “make somefast money.” (13 RT 4601.) Although appellant did nottell Billingsley specifically what he had in mind, he said he knew what day of the week and time ofday the lady from the Crestview bowling alley made bank deposits. (13 RT 4601-4602, 4608-4609.) The conversation took place in the parking lot outside the bowling alley. (13 RT 4609.) Both appellant and Billingsley had been drinking. (13 RT 4609.) Billingsley told appellant he was not interested. (13 RT 4601.) Billingsley testified that he and appellant had a second conversation on the subject about two weekslater, in Jerri Baker’s car. (13 RT 4602, 4613.) In the latter conversation, appellant reportedly said that the lady from the bowling alley took the money to the bank on Sunday mornings. (13 RT 4603, 4610-4614.) Appellant did not state that he had decided to steal the money, how he would do so or what role Billingsley would play if he choseto participate. (13 RT 4603, 4612, 4614-4615.) Again, Billingsley declined to participate. (13 RT 4613.) Appellant never used the word. “rob”in either of the two conversations; he used the word “job.” (13 RT 4614.) However, Billingsley understood appellant to be talking about a robbery. (13 RT 4605.) After Billingsley’s testimony out of the jury’s presence, the parties requested an opportunity to research the question of admissibility and provide the court with additional argument. (13 RT 4618, 4620.) Thetrial court indicated that it was inclined to exclude the evidence from the prosecution’s case-in-chief. The court ordered the prosecutorto instruct Billingsley, who was about to resumehis testimony before the jury, not to 197 mention the issue until further notice. (13 RT 4620-4621.) A few daysafter Billingsley testified, the defense received discovery indicating that Billy Joe Gentry had also made a statement about the prospect of doing sometype of robbery. (14 RT 4956.) Shortly thereafter, Gentry testified out of the jury’s presence. (16 RT 5721-5746.) He,like Billingsley, had worked with appellant at McKenry’s Cleaners. (16 RT 5722.) His wife had becomeclose friends with Mary Webster. (16 RT 5745.) Gentry testified that on Halloween (October 31) of 1992, he andhis family stopped by Webster’s house. (16 RT 5726-5727.) Gentry, a convicted felon, had been drinking; he had probably consumedtwo 40- ounce bottles of malt liquor already that day, enough that his wife would not let him drive. (16 RT 5739, 5743.) Gentry and appellant walked from Webster’s house to a liquor store around the corner. (16 RT 5727.) Along the way, appellant asked Gentry if he would like to make some extra money being a driver in a hold-up; appellant said that if Gentry would drive, he would do the rest. (16 RT 5727; 17 RT 5840.) Appellant did not seem to have anything planned; he talked aboutit as if it were something that might or might not happen. (16 RT 5741.) Appellant did not say whom he wanted to rob, when he wanted to commit the crime, whether he was going to use a gun or how much money Gentry could expect to make. (16 RT 5742.) Gentry declined to participate. (16 RT 5727, 5741-5742.) Appellant told Gentry to keep their conversation to himself. (16 RT 5727.) Gentry did not tell anyone about appellant’s offer until the day after the killings at The Office, when Gentry told Greg Billingsley. (16 RT 5727.) When Billingsley told the prosecutor that appellant had invited him to participate in a robbery, he mentioned that Gentry had told him that appellant had asked him the same thing. (16 RT 5738.) It was then that the 198 prosecution contacted Gentry for the first time. (16 RT 5730, 5738.) The prosecutor argued that Gentry’s and Billingsley’s testimony regarding appellant’s invitations to participate in other crimes showed violations of Penal Code section 653f and was admissible pursuant to Evidence Codesection 1101, subsection (b), as evidence of intent, motive, deliberation and premeditation, and common design and plan. (16 RT 5748-5755, 5767.)” Defense counsel argued that the evidence was inadmissible under Evidence Codesection 1101, that there was no dispute that the murders and robbery at The Office were committed by someone and that the real purpose of the evidence wasto show theidentity of the perpetrator, which was improper. (17 RT 5774, 5776, 5778.) The defense also argued that the evidence was moreprejudicial than probative. (17 RT 5776.) Thetrial court ruled that the testimony of both Gentry and Greg Billingsley would be admitted, stating as follows: These statements taken in context with the real state of the evidence, which is going to be admitted and some of which has already been presented to the jury, take on a new and different meaning. For example, the testimony of Mary Webster that while the defendant lived with her, he said he was a robber, purchased disguises, tattoos, would wear bulky clothing in order to thwart an identification, purchased Nu- Skin so that fingerprints would not be left during a robbery. [{ ] The testimony of Jeri [sic] Baker, the defendant said he felt compelled to commit a robbery, would leave no witnesses, all of this tends to prove that the defendant intended to commit a robbery and intended to avoid ° The prosecutor addressed the admissibility of this testimony together with the testimony of Voudouris and Curley. (16 RT 5746-5750; 17 RT 5783-5784.) Appellant addresses the admissibility of the testimony of Voudouris and Curley in ArgumentIV,infra. 199 apprehension when hedid it. [{] This robbery of The Office was apparently not the result of a sudden impulse, but was the result of planning engagedin by the defendant, a great deal of deliberation. And while the target of the robbery, The Office may be something that was decided on the spur of the moment, the idea of doing a robbery, it appears it’s something that was present in Mr. Case’s mind for a long time. Andit wasan idea that finally culminated in the act which took place on the 20" of June 1993. Theyare all admissible to show that this is a design or plan that the defendant had begun to think about early on and had donehis best to put together until he finally succeeded in doing so by this evidence here,if the jury believesit. (17 RT 5789-5790.)® The court stated that the evidence was not admissible to show identity: It is not being offered to show the identity. Reading Ewoldt, the court says that the greatest degree .. . of similarity is required for evidence of uncharged misconductto be relevant to prove identity. ... And soliciting to commit a generic robbery, soliciting to commit a robbery ofa different location with a getaway driver would not be similar to the robbery of The Office bar, insofar as admissible for purposes of showing intent. And so it would not be admissible to show intent to commit that robbery. . . . I am sorry, identity. I misspoke.” (17 RT 5792.) The court found that the evidence was “highly probative” and that its probative value outweighed “any possible prejudice that might be drawn from it.” (17 RT 5791.) Both Billingsley and Gentry testified before the jury regarding the alleged solicitations. (17 RT 5825-5861, 6019-6066; 19 RT 6067-6069.) 3 The court indicated that it would admit the evidence also to show intent and motive. (17 RT 5791, 5793-5794.) However, as set forth below, the court instructed the jury that the evidence could be considered only on the issue of scheme or plan. (23 RT 7615.) Therefore, its admissibility for that purposeis the sole relevance question at issue. (See fn. 65, infra.) 200 No limiting instruction was given at the time of the testimony, but in the final instructions given immediately before guilt phase deliberations, the court instructed as follows: The following evidence was admitted for a limited purpose. Defendant’s statements to Greg Billingsley and Billy Joe Gentry concerning “doing a job” or making some “quick money.” This evidenceis not admitted to establish that defendant has a criminal disposition or bad character, and you are not to considerit for that purpose. You may considerit on the issue of whether the defendant committed the charged offenses pursuant to an evolving or continuing schemeor plan, referred to in his commentsto Billingsley and Gentry relating to those unchargedacts. (2 CT 514; 23 RT 7615.) B. Evidence of the Solicitations Was Inadmissible to Show Design or Plan Thetrial court abusedits discretion in admitting evidence of appellant’s solicitations of Billingsley and Gentry. The evidence was not admissible to show schemeorplan, as there was no question that the acts which formedthebasis ofthe charged offenses had occurred. Identity was the only ultimate factual issue that was actually disputed, andthetrial court correctly ruled that the solicitations were not similar enough to the charged offense to be admissible for that purpose. The evidence was barred by Evidence Code section 1101, and even if not, was far more prejudicial than probative pursuant to Evidence Code section 352. Evidence of uncharged bad acts is generally inadmissible pursuant to the prohibition against character evidence codified in Evidence Code 1101, 201 subdivision (a). Subdivision (b) of that statute provides that evidence of uncharged misconduct is admissible when “relevant to prove some fact (such as motive, opportunity, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than [the person’s] disposition to commit such an act.” However, even if evidence of an uncharged crimeis relevant to one or more of these issues, Evidence Code section 352 requires that it be excludedif it lacks substantial probative value orif its probative G66value is “‘substantially outweighed by the probability that its admission [would] ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”” (People v. Ewoldt (1994) 7 Cal.4th 380, 404, quoting Evid. Code, § 352.) Trial court rulings as to the admissibility of evidence under Evidence Code section 1101, subdivision (b), and under section 352 are reviewed for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637 [Evid. Code § 1101]; People v. Ashmus (1991) 54 Cal.3d 932, 973 [Evid. Code § 352}.) Thetrial court admitted the testimony regarding appellant’s solicitations of Billingsley and Gentry as evidence of“an evolving or continuing schemeor plan.” (2 CT 514; 23 RT 7615.) As this Court made clear in People v. Ewoldt, supra, 7 Cal.4th at p. 393, evidence of a prior uncharged crime may be admitted to show design or plan only where there iS a question as to what acts the defendant committed in the charged 4 Evidence Code section 1101, subdivision (a), provides: Evidence of a person’s characteror trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. 202 offense. “The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.” (1A Wigmore, Evidence (Tillers rev. ed. 1983) § 102, p. 1666, quoted in People v. Ewoldt, supra, 7 Cal.4th at p. 393.) Such evidence “is not used to prove the defendant’s intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense.” (People v. Ewoldt, supra, 7 Cal.4th at p. 393.) The distinction between using uncharged acts as evidence of design or plan and using them as evidenceofidentity or intent is significant: Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed,‘[i]n proving design, the act is still undetermined . .. (Citation.) .... Evidence of identity is admissible where it is conceded or assumedthat the charged offense was committed by someone,in order to prove that the defendant wasthe perpetrator. (Id. at p. 394, fn. 2, italics added.) In appellant’s case, the acts involved in the charged offenses were not undetermined. As defense counsel noted, it was “beyond dispute in this case that these murders were committed by someoneandthat a robbery attended thereto was committed by.someone.” (17 RT 5774.) Appellant did not claim that any of the charged crimes did not occur. (Cf. Peoplev. Ewoldt, supra, 7 Cal.4th at p. 403 [where defendant was charged with molesting his stepdaughter and claimed that the crimes had not occurred, evidence that he had molested another stepdaughter was admissible as evidence of common schemeor plan to show that the charged acts had occurred].) There was no question that force or fear was used. (Cf. People v. Balcom (1994) 7 Cal.4th 414, 424 [where defendant was charged with 203 rape and defense was consent, evidence that the defendant had committed another rape under similar circumstances was admissible as evidence of commonplan or scheme becauseit tended to show that force was used in the charged offense].) On the contrary, the acts involved in the charged offenses were “conceded or assumed” (see People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2), and therefore evidence of plan or scheme was inadmissible. The only ultimate issue that appellant actually disputed was the identity of the perpetrator. Foridentity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. (Citation.) “The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.” (1 McCormick on Evidence (4th ed. 1992) § 190, pp. 801-803.) (Id. at p. 403.) Asthe trial court correctly found, appellant’s solicitations of Gentry and Billingsley were not similar enough to the charged crimesto be admissible to show identity. (17 RT 5792.) Furthermore, evidence of scheme or plan cannot be used to show identity. (People v. Ewoldt, supra, 7 Cal.4th at p. 393.) Evenifthis Court should find that evidence of common schemeor plan wastheoretically relevant to an issue in dispute in this case, the solicitations were not similar enough to the charged crimes to be admissible for that purpose. When evidenceofother crimes is offered to show common schemeorplan, the required degree of similarity is lower than that required for evidence offered to show identity, but higher than that applicable to evidence offered to show intent. (Ud. at p. 402.) To establish a common design or plan, the evidence must 204 eeedemonstrate not merely a similarity in the results, but “‘such a concurrence of commonfeaturesthatthe various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation.]” (People v. Balcom, supra, 7 Cal.4th at pp. 423-424; see also Ewoldt, at 402, quoting 2 Wigmore, Evidence (Chadbourn rev. ed. 1978), § 304, p. 249, italics omitted.) The solicitations reportedby Billingsley and Gentry fall far short of meeting that standard. Neither the testimonyofBillingsley northat of Gentry established that appellant had stolen anything, robbed anyone or even contemplated carrying a weapon,let alone that he had killed anyone. The uncharged crimesbore no “similarity in the results” to the charged crimes, in which two people wereshotto death at close range and money wastaken from the cashregister. Nordid the crimes which appellant reportedly proposed have features in common with the charged crimes, other than that they involved some kindof theft. They were not similar in terms of location, victim, plan or method of perpetration. In proposing the theft of the bowlingalley’s bank deposit, appellant did not mention carrying a weapon, shooting or killing anyone or exerting any other force. (13 RT 4611.) In inviting Gentry to participate in a “hold-up,” appellant did not tell Gentry what person or business he intended to rob and made no mention of being armed or of shooting or killing anyone. (16 RT 5742.) Neither of the proposed offenses involved stealing the cash out of the cash register, robbing a bar or bartender, using a gun, shooting, killing or being prepared to doeither. Both alleged solicitations contemplated crimes in which appellant would have had a crime partner, Billingsley or Gentry, acting as the driver, rather than acting alone, as the prosecution’s evidence indicated about the charged offenses. Neither of the proposed crimes was similar enoughto the charged 205 offenses to show anything about what acts were committed at The Office. The only relevance of the evidence was to show appellant’s propensity to commit robbery. The evidence of uncharged misconduct here bore far less similarity to the charged offenses than that which this Court has previously found admissible as evidence of commonplan or design. For example, in Ewoldt, both the charged crimes and uncharged acts involved molestations of the defendant’s stepdaughters, committed in almost identical fashion, and when discovered, defendant proffered similar excuses. (People v. Ewoldt, supra, 7 Cal.4th at p. 403.) In Balcom, in both the charged and uncharged crimes, the perpetrator was wearingdark clothing and a cap, went to an apartment complex in the early morning, sought out a lone woman, gained control over her at gunpoint, at first claimed it was a robbery, then forcibly removed her clothes, committed a single act of rape, stole the victim’s ATM card and then escaped in the victim’s car. (People v. Balcom, supra, 7 Cal.4th at p. 424.) In People v. Kipp (1998) 18 Cal4th 349, both the charged offense and the uncharged offense were rape murders in which the perpetrator strangled a 19-year-old woman in one location, carried the victim’s body to an enclosed area belonging to the victim and covered the body with bedding; both victims were found with a garment on the upper body, the breasts and genital area were unclothed, the clothes had not been torn, and both victims had been bruised on the legs. (/d. at p. 370.) People v. Prince (2007) 40 Cal.4th 1179, involved an uncharged incident in which the defendant followed the witness home from the store and stared at her from bottom ofstaircase to her apartment; the witness and the victims of the six charged murders wereall of the same age, race and genderas the witness, two ofthe victims lived in her apartment complex and several of 206 them had been stalked and killed in similar fashion. (/d. at pp. 1271-1272.) In People v. Catlin (2001) 26 Cal.4th 81, evidence of the uncharged murder of defendant’s fifth wife was admissible at his trial for murdering his mother and fourth wife, where each victim was a close relative of the defendant, the defendant stood to gain financially from each death, and there was evidence that each victim had died from paraquat poisoning, having been healthy before suffering flu-like symptoms followed by respiratory collapse. (/d. at pp. 111-112.) In appellant’s case, by contrast, the only aspect of the crimes described in the solicitations that was arguably similar to the charged offense was that robbery was contemplated. Noneofthe other circumstances were similar. Even if there had been a dispute as to what acts were committed in the charged offense, the solicitations would have done nothing to resolve it. Assuming arguendothatthe solicitations showed that appellant had been planning to commit a robbery, the evidence nevertheless shed no light on the question of what had occurred at The Office on June 20, 1993, which is the only legitimate purpose ofplan or — design evidence. ‘The only logical inference that the jury could have drawn from the evidence of the uncharged crimesin this case was that appellant had a propensity to commit robbery and that therefore he was morelikely to have been the perpetrator of the charged offenses. That is precisely the use for which evidence prior uncharged misconductis prohibited: i.e., to show the defendant’s criminal disposition. (Evid. Code, §1101, subd. (b).)® °° Becausethe jury was instructed that the evidence could be considered only for the limited purpose of schemeor plan, whetherit could have been admitted for any other purposeis irrelevant. As this Court stated (continued...) 207 Even if this Court should find that the solicitations were relevant, the probative value of the evidence wasat best scant and was far outweighed by its prejudicial effect. As this Court has recognized, evidence of uncharged misconduct ““‘is so prejudicial that its admission requires extremely careful analysis.’” (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) The primary focus of this careful analysis is to determine precisely the actual relevance of the proffered evidence, to ensure that the evidenceis not offered to prove character or propensity and to determine whetherits practical value outweighs the dangerthat the jury will nevertheless use it as evidence of criminal propensity. In conducting this analysis under Evidence Code section 352, the trial court must consider five factors: (1) whether the evidence of uncharged misconductis material, i.e., the tendency of the evidence to demonstrate the issue for whichit is being offered; (2) the extent to which the source of the evidence is independent of the evidence of the charged offense; (3) whether the defendant was punishedfor the uncharged misconduct; (4) whether the uncharged misconduct is more inflammatory than the charged offense; and (5) the remoteness in time of the uncharged misconduct. (People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405.) ® (...continued) in Ewoldt, Weneed not, and do not, consider whether the evidence of defendant’s uncharged misconduct was admissible to establish defendant’s intent as to the single charge of annoying or molesting a child, because the evidence wasnot admitted for that limited purpose and the jury was not instructed to consider the evidence only as to that charge. (People v. Ewoldt, supra, 7 Cal.4th at pp. 406-407.) 208 For the reasons set forth above, the materiality of the evidence was minimalat best. If relevantat all, it was “merely cumulative regarding an issue that was not reasonably subject to dispute.” (Ud. at pp. 405-406) As this Court observed in Ewoldt, in most prosecutions for crimes such as burglary and robbery, it is beyond dispute that the charged offense was committed by someone;the primary issue to be determined is whether the defendant was the perpetrator of that crime. Thus, in such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a commondesign or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidenceis relevantto demonstrate that, assuming the defendant waspresentat the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense,if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value. (id. at p. 406.) This is precisely the situation here. The evidence that the cash was missing from the cash register and that the bartender and her associate had been shottwice in the head at close range was uncontroverted, and defense counsel conceded that both the murders and the robbery were “committed by someone.” (17 RT 5774.) There was no dispute as to what acts had been committed. As defense counsel stated, the only real question for the jury was whether the defendant wasthe perpetrator. (17 RT 5776, 5778.) Thetrial court properly foundthat the solicitations were not sufficiently similar to the charged offense to be admissible for identity. (17 RT 5792.) The solicitations and the charged crimes shared no unusualor distinctive characteristics. (Cf. People v. Balcom, supra, 7 Cal.4th at p. 424 [presence 209 of unusualor distinctive characteristics increases probative value of evidence of common design or plan].) The uncharged misconduct evidence at issue was exactly the kind of evidence that this Court in Ewoldt found would be cumulative and more prejudicial than probative. Nor wasthe source ofthe solicitation evidence independentofthe evidence of the charged offense. In Ewoldt, the Court explained: if a witness to the uncharged offense provided a detailed report of that incident without being aware of the circumstances of the charged offense, the risk that the witness’s account may have been influenced by knowledge of the charged offense would be eliminated and the probative value of the evidence would be enhanced (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) Here, both Billingsley and Gentry knew about the charges against appellant before they reported the alleged solicitations. Billingsley did not report his alleged solicitation to law enforcement until he had testified at appellant’s trial and had become annoyed at defense counsel’s cross-examination. (13 RT 4597-4600.)” Gentry testified that he and Billingsley had discussed the subject, but only after the murders at The Office had occurred. (16 RT 5727.) Like Billingsley, Gentry did not report appellant’s solicitation to law enforcement until the middle of appellant’s trial. (16 RT 5727.) Thus, both Gentry and Billingsley necessarily knew that appellant was being prosecuted for the killings at The Office before they reported the solicitations to anyone in a position of authority. Both menalsotestified 6° Billingsley testified that he had never reported the alleged solicitation to anyone, not even his wife. (13 RT 4605.) He later contradicted himself and stated that, at some time prior to his conversation with the prosecutor on the subject, he and Gentry had told each other about appellant’s alleged solicitations. (17 RT 6059-6060.) 210 regarding other matters directly relevant to the charged killings: Billingsley identified the gun in evidence as one that he had borrowed from appellant for a camping trip (13 RT 4566-4567), corroborated other evidence that appellant had spent the night andleft the gun at the Billingsley’s house the weekend before the killings (13 RT 4570-4573) andtestified that he had returned the gun to appellant a few days before the killings (13 RT 4574- 4575). Gentry identified the gun in evidenceas onethat appellant had acquired in 1992 and had shownhim at that time. (17 RT 5829-5832.) Thus, both Billingsley’s and Gentry’s testimony regarding the solicitations may well have been influenced by their respective beliefs about appellant’s involvementin the charged offenses. The evidenceofthe solicitations was not independentofthe evidence of the charged offenses, andits probative value was accordingly diminished. Further, because appellant had not been charged with or punished for the solicitations, there was a risk that the jury would be inclined to punish him for those uncharged offenses, whether or not it considered him guilty of the charged offenses. There wasalso a likelihood of confusion of issues (Evid. Code, § 352) because the jury had to determine whether the uncharged offenses had occurred. (People v. Ewoldt, supra, 7 Cal.4th at Dp. 405.) Given that the evidence resolved no factual dispute and wasat best cumulative of other evidence, the probative value of the solicitation evidence was far outweighedbyits prejudicial effect. Although the jury wasinstructed that the evidence could be considered only as evidence of schemeorplan, the evidence revealed nothing about the charged crimes except that appellant had a criminal disposition and a propensity to commit robbery. In admitting the evidence,the trial court abused its discretion. 21] (See People v. Ashmus, supra, 54 Cal.3d 932, 973.) C. The Erroneous Admission ofthe Solicitations Resulted in a Miscarriage of Justice That Requires Reversal of Appellant’s Convictions and Death Sentence Asset forth above (see ArgumentI.E, ante), a close look at the record on appeal reveals that the admissible evidence which actually connected appellant to the charged crimes wasnotas strong as might appear at first glance. The prosecution obscured the gaps and inconsistencies in its case by showering the jury with evidence of appellant’s bad character and criminal propensity. Evidence that appellant solicited Billingsley and Gentry to participate in other robberies was relevant to nothing other than appellant’s propensity to commit robbery. Although the prosecutor gavelip service to the prohibition against considering this evidence as an indication of appellant’s bad character (22 RT 7349), it was precisely that inference which the jury must have drawn from it. The effect of the evidence wasto distract the jury from the weaknesses in the prosecution’s case and persuade them that because appellant was, as the prosecutor argued, a “professional criminal” (22 RT 7336), he must have committed the crimes charged. The importance ofthe solicitations to the prosecution’s ability to obtain the convictions in this case is reflected in the fact that the prosecutor made numerousreferences to them in closing argument. (See, e.g., 22 RT 7347-7351, 7560-7562; 23 RT 7592-7595, 7598-7599.) Indeed, the solicitations were two ofthe enumerated reasons for which he argued the jury should find appellant guilty. (22 RT 7347-7351.) Whether considered in isolation or together with the other evidentiary errors which occurredat the guilt phase of appellant’s trial, the erroneous admission of evidence of 212 the solicitations certainly was a contributing cause of the guilt verdicts against appellant. The prosecutoralso relied on the solicitations in arguing for a death verdict at the penalty phase. (25 RT 8380-8381.) Individually and in combination with the other numerous items of improperly admitted evidence that had a similar effect, there is no question that the solicitation evidence contributed to both the verdicts of guilt and penalty. Underthe standard applicable to errors of state law, reversal is required. (Peoplev. Watson (1956) 46 Cal.2d 818, 835-836.) D. The Error Rendered Appellant’s Trial Fundamentally Unfair in Violation of the Due Process Clause of the Fourteenth Amendment The erroneous admission of the evidence of uncharged solicitations to commit robbery also violated appellant’s right to a fair trial under the DueProcess clause of the Fourteenth Amendmentto the United States Constitution.®’ Under the authorities set forth above (see ArgumentII, D, ante), the admission ofirrelevant and inflammatory evidence may so infect the trial with unfairness that due process is violated. The factors which,in McKinney v. Rees (9" Cir. 1993) 993 F.2d 1378, led the Ninth Circuit to °’ Appellant’s federal constitutional claim was preserved below. As set forth above(see fn. 37, ante), the trial court granted appellant’s request to deem all of his objections understate statute to have been made on constitutional grounds as well. (1 RT 1018; 2 CT 308-310.) Moreover, his objections based on Evidence Codesections 352 and 1101 also preserved those claims. (See People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6 [defendant’s trial objection under sections 352 and 1101 preserved both a due process claim and an Eighth Amendmentreliability claim regarding the admission of evidence of prior cohabitant abuse]; People v. Partida (2005) 37 Cal.4th 428, 433-439 [defendant’s trial objection under section 352 rendered cognizable on appealhis claim that admission of gang evidence violated his due processrights].) | 213 find that the admission of other crimes evidence violated due processare also present here. The first McKinney factor — that the prosecution’s case against the defendant wassolely circumstantial ~ is true of appellant’s case. The evidence wasnot only entirely circumstantial, but as shown above(see Argument J.E, ante), the admissible evidence left room for reasonable doubt as to appellant’s guilt. The second McKinney factor — that the uncharged crimes were similar to the charged one — also supports the conclusion that the admission ofthe evidence deprived appellant of a fair trial, as both the uncharged crimes and the charged offenses involved robbery. Asto the third McKinney factor, the prosecutor relied on the evidence of unchargedsolicitations as a significant part of his case-in-chief and as a focus of his argumentto the jury. (See section C, ante.) Asto the fourth McKinney factor, it is likely that the solicitations evidence provoked an emotional response such as the urge to punish appellant for crimes which had previously gone undetected. The effect of admitting it was to impair the jury’s ability to properly assess the relative weaknessof the remaining evidence. The evidencetherefore unfairly bolstered the prosecution’s case. Indeed, it is because other crimes evidence amounts to character or propensity evidence that can lead jurors to convict despite a lack of sufficient proof of guilt — either because they decide that the defendant is the type to commit such crimes, or because they want to punish him for the other crimes — that such evidencehashistorically been held inadmissible in criminaltrials. (See, e.g., 1A Wigmore, Evidence (Tillers rev. ed. 1983) § 58.2, p. 1215.) Furthermore,all of the factors discussed in Section C, ante, that madethe error a miscarriage ofjustice also madeit a due processviolation. 214 Viewedin context, the evidence ofthe solicitations tainted appellant’s trial and rendered it fundamentally unfair. As set forth above (see Argument IL.D, ante), such error cannot be deemed harmless, and appellant need not make any further showing of prejudice. However, even if the federal harmless error test applies to such due processviolations, the state cannot show that the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. Appellant’s convictions and death sentence must be reversed. // H/ IV THE TRIAL COURT ERRED IN ADMITTING APPELLANT’S STATEMENTSAS A GUEST SPEAKER AT THE MEETINGS OF ROBBERY INVESTIGATORS Five or six months before the murders, appellant was an invited speaker at two gatherings of law enforcementinvestigators and private security agents, after he had agreed to be interviewed about his experiences as a robberin the 1978 crimes for which he had beensentto prison in 1979, At both gatherings, he was asked what he would have done or what he would doif, during a robbery, someoneresisted or interfered. At one of the events, appellant responded that he “would be ‘willing to take them out’” (16 RT 5689)or he “would take somebody out” (17 RT 5812, 5819). At the other event, he respondedthat “would blow the person away.” (16 RT 5715; 17 RT 5865.) This highly inflammatory evidence bore no logical relevance to any material fact in dispute at appellant’s trial. Even if of some relevance, its prejudicial effect far outweighed its probative value, which was minimal. The admission of this evidence was an abuseofthe trial court’s discretion which resulted in a miscarriage ofjustice and rendered appellant’s trial fundamentally unfair. (Cal. Const., art. I, §§ 7, 15, 17; U.S. Const., 14" Amend.) A. The Trial Court Admitted Evidence of Appellant’s Statements to Two Groupsof Investigators Regarding His Past Experience As a Robber Prior to trial, defense counsel filed a motion in limine seeking exclusion of the above-described evidence, the general nature of which had been disclosed in pre-trial discovery. (2 CT 431-432.8.) Appellant objected that the evidence was hearsay, irrelevant and more prejudicial than 216 probative pursuant to Evidence Code section 352. (2 CT 431-432.4.) Ata hearing held outside the presence of the jury, Sergeant Voudouris testified that, in the fall of 1992, he took part in a panel interview of appellant and other ex-offenders, facilitated by appellant’s parole officer. (16 RT 5682- 5685.) In the interview, appellant talked about the 1978 robberies and rapes for which he was incarcerated in 1979. (16 RT 5685.) A weekor ten days later, Voudouris, together with appellant’s parole officer, visited appellant at McKenry’s dry cleaners, where appellant worked. (16 RT 5685.) Again they talked about the 1978 crimes for which appellant wassentto prison in 1979. (16 RT 5685-5686.) During that conversation, Voudouris asked . appellant if he would be willing to come talk to a group of investigators about what he had done. (16 RT 5687.) Voudouris told appellant that if he did well and impressed the people in attendance, he might be able to make some money in the future as a consultant or advisor. (16 RT 5696-5697.) Atfirst, appellant said no, but later, he contacted Voudouris and agreed “to be interviewed relative to what he had done in the past” (16 RT 5687); the understanding was that he would be asked questions“relative to his priors.” (16 RT 5698.) Appellant spoke at the seminar for robbery investigators in January or February, 1993. (16 RT 5687-5688, 5699.) On direct examination of Voudouris at the hearing, the prosecutor elicited the following testimony: Prosecutor: Do you rememberspecifically Mr. Case being asked a question about committing robberies and if he faced any resistance or anyone interfered with that, what he would do? Voudouris Yeah. He replied somethingto the effect that he would be “willing to take them out.” 217 (16 RT 5689.) Voudouris did not take notes and did not remember who asked the question, the form ofthe question, or precisely what appellant said in response. (16 RT 5701-5703.) Aboutfour to six weeksafter the seminar, appellant spoke at the luncheon for robbery investigators and private security officers held in a Mexican restaurant. (16 RT 5690, 5713, 5717.) There, appellant gave a presentation about his experiences concerning robberies. (16 RT 5713- _5715.) The prosecutor elicited the following testimony from Brian Curley: Prosecutor: Curley: Prosecutor: Curley: Anddo yourecall the question being asked ofMr. Case concerning, quote, if you were committing a robbery and someoneresisted, what would you do, closed quote? Yes, Ido What did he say? His response back to the question was that he would blow them away. ... That’s almost verbatim, the best I can recall. (16 RT 5715.) On cross-examination, Curley corrected the syntax ofthe question that had been posedto appellant: Defense counsel: Curley: Defense counsel: Curley: Anddo yourecall the actual question that was asked? As I recall, the question wasthat in situations in the course of a robbery,if you encountered someone whoresisted you, what would you have done? Okay. So that was — that was talking about what he would have donein the past; is-that correct? That was the nature of the question,yes. 218 Defense counsel: He wasn’t talking about what he would do in the future, then, was he? Curley: No. That was — the question was what had you done? We weren’t talking about future events. (16 RT 5720.) Curley did not take notes, he did not recall who asked the question and, until he got a jetter from the Sheriff's Department asking about the luncheon, he did not rememberappellant’s name. (16 RT 5718- 5720.) The letter that Curley received from the Sheriff's Department was sent shortly after appellant’s arrest for the murders at The Office; it named appellant, stated that he had been a guest speaker at the luncheon,that he had since been arrested for a double robbery-homicide and that he had made the statement at issue. Theletter stated: It is my understanding from Robbery Investigators from this Department that someone asked Case what he would do if someoneresisted his robbery attempt, and that his reply was that he would “blow them away.” ... We are attempting to find out who asked this question and/or heard his reply well enough to give us a report on his statement. This may help our case by establishing his frame of mind. (24 CT 7135; 16 RT 5719.) The prosecutor argued that appellant’s statements were relevant to his “intent and his motive and his preparation and deliberation towards doing the robbery” (16 RT 5748), that they were admissible as statements of a defendant pursuant to Evidence Code section 1220 and that they indicated appellant’s “present state of mind as to a future act.” (17 RT 5771.) The trial court ruled that the evidence was admissible: First, regarding the statements made to Detective Voudouris and Brian Curley. [§] Specifically, as Detective Voudouris testified, the defendant was asked about his willingness to use force. His response was he would use whateverforceit took. 219 He would be willing to take them out. [] And the statement by Mr. Curley, which accounted Mr. Case’s response to the question of what he would do if during a robbery the victims resisted, the response was he would blow them away. [{] It appearsthat these are statements under 1270 of the — 1250 of the Evidence Code, and they reflect an existing state of mind. It doesn’t appear that these statements were directed to what the defendant did or had donein the past had he encountered the situation where the victims resisted or how much force he wasprepared to use during theprior robberies. [§]] From the testimony, it appears that they were speaking of what he would doif, in a robbery, he encountered resistance. (17 RT 5785.) The-court indicated that if the evidence qualified for admission pursuant to Evidence Code section 1250, it would be relevant to show appellant’s state of mindat a later time. (17 RT 5785.) Quoting extensively from this Court’s decision in People v. Karis (1988) 46 Cal.3d 612 (17 RT 5786), the court admitted appellant’s statements, finding that they constituted “a generic threat which unfortunately cameto pass.” (17 RT 5787.) Thetrial court also found the statements admissible notwithstanding Evidence Code section 352. (17 RT 5788-5791.) The court’s stated rationale for this ruling is interwoven with its discussion of appellant’s purported solicitations of Billy Joe Gentry and Greg Billingsley. Referring to all of these statements, the court stated: These statements taken in context with the real state of the evidence, which is going to be admitted and some of which has already been presented to the jury, take on a new and different meaning. For example, the testimony of Mary Webster that while the defendant lived with her, he said he wasa robber, purchased disguises, tattoos, would wear bulky clothing in order to thwart an identification, purchased Nu- Skin so that fingerprints would not be left during a robbery. [{] The testimony ofJeri [sic] Baker, the defendant said he 220 felt compelled to commit a robbery, would leave no witnesses,all of this tends to prove that the defendant intended to commit a robbery and intended to avoid apprehension whenhedid it. [{] This robbery of The Office was apparently not the result of a sudden impulse, but was the result ofplanning engaged in by the defendant, a great deal of deliberation. And while the target of the robbery, The Office may be something that was decided on the spur of the moment, the idea of doing a robbery,it appears it’s something that was present in Mr. Case’s mind for a long time. And it wasan ideathat finally culminated in the act which took place on the 20" of June 1993. They are also admissible to show that this is a design or plan that the defendant had begun to think about early on and had donehis best to put together until he finally succeeded in doing so by this evidencehere, if the jury believes it. [§] The question under 352,is the evidence ofthe solicitation to Billy Joe Gentry and Greg Billingsley so prejudicial that it should not be admitted andit outweighs the probative value, and the same would hold true for the testimony of Detective Voudouris and Brian Curley. [|] And here, this evidence, the Court finds is highly probative. Andthat the probative value of it outweighs any possible prejudice that might be drawn from it. The Court would therefore allow the evidence to be presented. (17 RT 5789-5791.) When Voudouris testified before the jury, he stated that at the meeting ofinvestigators in downtown Sacramento, appellant.was asked a question “similar to what would you do if you met with resistance during a robbery? And the response was I would take somebodyout.” (17 RT 5812.) On cross-examination, Voudouris stated that the question was not “assuming that you are doing a robbery downthe road here and you ran into resistance what would you do?”; the question concerned “what he would have donein the past had there been resistance.” (17 RT 5819.) On redirect examination, he addedthat he did not recall specifically that either 221 the question or the answer was expressly qualified so that it referred only to the past. (17 RT 5820-5821.) Curley testified before the jury that at the investigators’ luncheon, appellant was asked “During the question and answerperiod, was a question asked, quote, if you were committing a robbery and if somebody resisted, what would you do?” Curley answered that something “very similar” to that was asked. (17 RT 5864.) He stated that appellant’s answer was“that he would blow the person away.” On cross-examination, Curley stated that the question posed of appellant was actually, “if in the course of a robbery, someoneresisted you, what would you have done?” (17 RT 5868.) He made clear that appellant was not talking about what he would do in the future. (17 RT 5869-5870.) No limiting instruction was given at the time of the testimony on this subject, but the instructions given to the jury just prior to guilt phase deliberations included the following: Evidence was also admitted relating to defendant’s statements on two occasions, to law enforcementofficers and private security personnel, regarding what defendant would do, or would havedone,if he met with resistance during a robbery. [{] Reference to his reaction to a certain situation, that might occur during a robbery may be considered by you on the issue of the existence of a specific intent or mental state whichis a necessary elementofthe crimes charged. This evidence would be relevant and admissible regarding defendant’s mental state or intent or premeditation and deliberation. None of the evidence is admissible to show defendant’s bad character or disposition to commit crime... . [{] At the time this evidence was admitted you were admonishedthatit could not be considered by you for any purpose other than the limited purpose for which it was admitted. For the limited purpose for which you may consider such evidence, you must weighit in the same manneras you doall the other evidence 222 in the case. [§]] Do not consider such evidence for any purpose exceptthe limited purpose for which it was admitted. (2 CT 514-516; 23 RT 7615-7617.) B. Appellant’s Statements to Robbery Investigators WereIrrelevant to Any Material Disputed Fact In order to be admissible, evidence must be relevant. (Evid. Code,§ 350.) The general test of relevancy of indirect evidenceis “whetherit tends logically, naturally and by reasonable inference to prove or disprove a material issue.” (People v Jones (1954) 42 Cal.2d 219, 222.) Purely speculative inferences are impermissible. (See People v. Babbitt (1988) 45 Cal.3d 660, 681.) Whether considered as falling within the hearsay exceptions provided by Evidence Code section 1220or 1250,appellant’s 68 Evidence Codesection 1220 provides: Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to whichheis a party in either his individual or representative capacity, regardless of whether the statement was madein his individual or representative.capacity. ° Evidence Code section 1250 provides: (a) Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (includinga statementofintent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: (1) The evidenceis offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time whenitis itself an issue in the action; or (2) The evidenceis offered to prove or explain acts (continued...) 223 statements about what he would have donein a hypothetical robbery in the past were inadmissible because they were not relevant to any disputed fact of consequence. (Evid. Code, § 210.) Thetrial court found that the evidence showed appellant’s state of mind at the time of the statements and constituted a “generic threat.” (17 RT 5787.) Thetrial court’s holding was erroneous because: (1) the statements did not constitute a threat of any kind or reflect even a conditional intention to commit any act in the future; (2) the victims of the shooting at The Office did not come within the scope of the purported “threat;” (3) the statements, reflecting appellant’s state of mind 15 years before the charged crimes, were too stale to constitute a threat or otherwise have probative value; and (4) even if envisioning future conductor reflecting appellant’s state of mind when he spokeat the meetings of robbery investigators, the statements were not relevant to any disputed material fact. This Court has held that in a murder prosecution, evidence that the defendant stated a generic threat is admissible to show “the defendant’s homicidal intent where other evidence brings the actual victim within the scope ofthe threat.” (People v. Rodriguez (1986) 42 Cal.3d 730, 757.) This holding was based on the principle that such a threat “‘[tends] to show a design or intent to kill membersof a class ofpersons undercertain circumstances.” ([bid.) As stated by Wigmore,“the presence of a design or plan to do or not do a given act has probative value to show that the act was °° (...continued) or conduct of the declarant. (b) This section does not make admissible evidence of a statement ofmemory orbelief to prove the fact remembered or believed. 224 in fact done or not done. A plan is not always carried out, but it is more or less likely to be carried out.” (1A Wigmore, Evidence (Tillers ed. 1983), § | 102.) The intention, design or plan to do an act tends to prove that the act was accomplished. (/d. at § 103.)” In People v. Karis, supra, 46 Cal.3d at pp. 636-637, this Court applied the “generic threats” doctrine ofRodriguez to a statement by the defendant which was hypothetical in nature.”" However, the Court recognized that admitting a defendant’s hypothetical statements may violate the prohibition against evidence of propensity to commit criminalacts pursuant toEvidence Code section 1101. (Ud. at p. 636.) Whether analyzed pursuant to section 1220 or 1250, the Court’s admonition aboutproceeding with caution in analyzing a defendant’s non-specific threats applies to the 7° Wigmoredistinguishes the term “intent,” meaning the mentalstate element of a particular crime, from “intention” to do a particular act, which he equates with design or plan. (LA Wigmore, supra, § 103.) Courts often use the term “intent” when the intended meaning is what Wigmore would call “intention,” design or plan. The conceptualdistinction is codified in Evidence Code section 1250(a)(1) (evidence of a state of mind at the time of the declaration, offered to show to a state of mind which “‘is itself an issue in the case,” i.e., “intent”) and 1250(a)(2) (evidence of state of mind at the time of the declaration, “offered to prove or explain acts or conduct of the declarant,” i.e., intention”). "| Tp Karis, the Court found the defendant’s statement admissible pursuant to Evidence Code section 1250, governing statements of the declarant’s existing state of mind. In Rodriguez, the specific hearsay exception under which the evidence was admitted was not discussed. Pursuant to Evidence Code section 1220, evidence of a defendant’s statement, offered into evidence by the prosecution,is not barred by the hearsay rule. However, it must also be relevant to be admissible. (People v. Lewis (2008) 43 Cal.4th 415, 529.) Whether the statementat issue is considered under section 1250 or 1220, the principles of relevancy discussed here apply. 225 question of relevance in this case: Evidence of a defendant’s statement regarding possible future criminal conduct in a hypothetical situation hasat least as great potential for prejudice in suggesting a propensity to commit crime as evidence of other crimes. Therefore, the content of and circumstances in which such statements are made must be carefully examined both in determining whetherthe statements fall within the state-of-mind exception, as circumstantial evidence that defendant acted in accordance with his stated intent, and in assessing whether the probative value of the evidence outweighsthat potential prejudicial effect. (People v. Karis, supra, 46 Cal.3d at p. 636; see also People v. Lew (1968) 68 Cal.2d 774, 779 [where evidenceof threatened violence is involved,“a careful examination of the precise issues to which the threats might be relevant” is required].) First, the trial court erred in finding the evidence to constitute a generic threat. Carefully examining the testimony of Curley and Voudouris, appellant’s statements cannot be fairly characterized as “threats” or statements of an intention to commit future criminal conduct even in a hypothetical situation. At the foundational hearing, Voudouris stated very plainly that when appellant spoke to the investigators, the understanding wasthat he would be interviewed “relative to what he had done m the past” (16 RT 5687) and that he would be asked “questionsrelative to his priors” (16 RT 5698) or “his past record” (16 RT 5702), the crimes that he had committed in 1978 and before. Curley testified that at the robbery luncheon, appellant was presented as a reformed ex-convict, someone who, after a life of incarceration, “had tured the corner and now was wanting to explain what caused him to do that.” (16 RT 5718.) Both Voudouris and Curley clearly stated that appellant gave no indication of an intention to 226 commit any further robberies. (16 RT 5702, 5704, 5717-5718.) However, both at the foundational hearing and before the jury, the prosecutor framed his questions of Voudouris and Curley in the present tense, virtually forcing both witnesses to characterize appellant’s statements as madein the present conditional rather than in the past conditional tense. For example, at the foundational hearing, the prosecutor asked Voudouris, “Do you rememberspecifically Mr. Case being asked a question about committing robberies and if he faced any resistance or anyoneinterfered with that, what he would do?” (16 RT 56839,italics added.) Voudouris responded that he did not rememberprecisely what the question was or what appellant had said in response, and thereby avoidedclarifying the syntax. (16 RT 5702, 5703.) Helater clarified that the focus of the question posed to appellant was what he would have donein the past: Defense counsel: So the question wasn’t, well, Mr. Case, assuming that you are doing a robbery downthe road here and you ran into resistance, what would you do? That wasn’t the question, was it? Voudouris: No. Defense counsel: Mr. Case was relating to what he would have donein the past had there been resistance? Voudouris: Correct. (17RT 5819.) Also at the foundational hearing, the prosecutor asked Curley, “do you recall the question being asked ofMr. Case concerning, quote, if you were committing a robbery and someoneresisted, what would you do, 227 closed quote?” (16 RT 5715.)When appellant’s counsel asked a more open-ended question — i.e., “do you recall the actual question that was asked” — Curley stated unequivocally that the question posed of appellant had been, “if you encountered someone whoresisted you, what wouldyou have done?” (16 RT 5720.) Curley then clarified further that they “weren’t talking about future events,” but were talking about what appellant would have done when committing robberies in the past. (16 RT 5720) Despite the prosecutor’s attempts to adjust the temporal framework of appellant’s purported statements, the testimony of both Curley and Voudouris shows clearly that at both events, appellant was hypothesizing about what he would have donein the past, not what he contemplated doinginthe future. Thetrial court’s finding to the contrary (17 RT 5787) was not supported by substantial evidence. Appellant’s statements did not contemplate any future action, hypothetical or otherwise. As such, they were materially distinct from the kind of evidence which has been held admissible under the rubric of “generic threats.” In Karis, supra, 46 Cal.3d at p. 634, the defendant stated “that he would not hesitate to eliminate witnesses if he committed a crime.” In People v. Lang (1989) 49 Cal.3d 991, 1013-1016, a witnesstestified that he asked the defendant whyhe carried a gun; the defendant pointed the weapon at him andreplied, “‘I’1] waste any mother fucker that screws with me.” In Rodriguez, supra, 42 Cal.3d at p. 756, the defendant had been heard to “express contempt and hatred for police and declare that he would kill any officer who attempted to arrest him.” In People v. Thompson ” The prosecutor was apparently quoting from the letter which detective Edwards had written to those who attended the luncheon. (24 CT 7135.) 228 (1988) 45 Cal.3d 86, 109-110, the defendant said “he would kill anyone whogot in the way ofhis plan.” In each of the above cases, the statement at issue, even if conditional, contemplated some future action on the part of the defendant. The statementsattributed to appellant by Voudouris and Curley did not. Asset forth above, both Curley and Voudouris stated clearly that appellant gave no impression that he intended to commit any further robberies and presented himself as a reformed former criminal. Had the statements at issuebeenstated in termsthat contemplated the possibility that appellant might commit a robbery again, those witnesses would not havesotestified. In the context of talking about crimes committed years earlier, the defendant’s statements cannot fairly be characterized as threats or as “statement[s] regarding possible future criminal conduct in a hypothetical situation.” (People v. Karis, supra, 46 Cal.3d at p. 636.) Second, appellant’s statements were not admissible because the victims in this case, Manuel and Tudor, did not belong to the category of individuals which were the subject of the purported threats. Appellant’s reported statements concerned what he would have done if he had encountered resistance during a robbery. There was no evidencethat Manuelor Tudor had resisted the robbery at The Office. The autopsies revealed no defensive wounds on their bodies. (12 RT 4408, 4438.) Indeed, the prosecutor argued that there was no resistance. (11 RT 4154.) Thus, the evidence did not bring the actual victims within the scope ofthe “threat,” to the extent that any threat was stated, and this case stands in sharp contrast to decisions in which the defendant’s statements were admitted as such. (See, e.g., People v. Lang, supra, 49 Cal.3d at pp. 1013- 1016 [evidence of defendant’s statement, “I’1l waste any mother fuckerthat 229 screws with me” was admissible where defendant had introduced evidence that murder victim made a sexual advance and made gestures toward defendant with a rifle]; People v Rodriguez, supra, 42 Cal.3d at p. 756 [evidence that appellant had expressed contempt and hatred for police and stated that he would kill any officer who attemptedto arrest him found relevantat trial for murder of two highway patrol officers]; People v. Wilt (1916) 173 Cal. 477, 481-483 [evidence that defendant hadsaid, “I will get my revenge on that bunch” found relevant where the victim wasin the presence of a man whohad been a memberof the “bunch” to which the defendant had referred].) Third, because appellant’s statements concernedhis state of mind 15 years earlier, when he committed the crimes for which he wassent to prison in 1979, they were inadmissible on remoteness grounds. Where “the circumstances in which the statements were made, the lapse of time, or other evidence suggests that the state of mind wastransitory and no longer existed at the time of the charged crime,” the statements are inadmissible. (People v. Karis, supra, 46 Cal.3d at p. 637.) As stated above, appellant spoketo the investigators as an ex-offender. In talking at the gatherings of robbery investigators, he was describing his state ofmind at the time of his prior offenses. He gave no indication that he was presently contemplating future criminal conduct or that he continued to harbor the samestate of mind. Lastly, even if appellant’s statements had contemplated some future conductor reflected his present state of mind, they nevertheless were inadmissible because they were not relevant to any material fact in dispute. The prosecutor argued that they were relevant to motive, intent or “preparation and deliberation towards doing the robbery.” (16 RT 5748.) 230 However, the statements do not suggest any motive for robbery. At most, the statements might have been relevant to show that the motivefor killing was to overcome resistance to the robbery. However, that motive was irrelevant for the same reason that the Manuel and Tudor did not come within the scope of the threat: the evidence indicated that they did notresist the robbery. Nor was the evidence relevant to intention, preparation or deliberation to commit robbery. As noted above, both Curley and Voudouris stated appellant said nothing to indicate he was planning to commit another robbery. (17 RT 5823, 5870.) Ifthe statements at issue had reasonably been susceptible of such an inference, Curley and Voudouris would not havesotestified. Appellant’s record as a robber predatedhis arrest in 1978. His retrospective speculation when asked at both the luncheon and the seminar about what he would have doneifhe had faced resistance to a robbery had no bearing on the disputed factual issues in the present case. Appellant’s statements did not contemplate any future action on his part, even conditionally. The statements addressed a hypothetical scenario in which the victimsresisted a robbery, which, as the prosecutor conceded,is not what occurred in this case. The statements concerned appellant’s state of mind 15 years earlier. For thesereasons, the statements were not relevant to any material fact in dispute, and the only use to which the jury could have put them wasas evidence that appellant had a propensity to kill. As such, evidence of the statements was barred by Evidence Codesection 1101, subdivision (a). (See People v. Karis, supra, 46 Cal.3d at p. 636 [if ? Evidence Code section 1101, subdivision (a), provides: (continued...) defendant’s statement regarding possible future criminal conduct does not fit the relevancy criteria for statements of state of mind, its admission violates section 1101]; cf. People v. Lang, supra, 49 Cal.3d at pp. 1015- 1016 [because the defendant’s statement, “I’1l waste any mother fuckerthat screws with me,” wasrelevantto his intent to kill anyone whointerfered with him or thwarted his desires or plans, it was not barred by section 1101]; People v. Rodriguez, supra, 42 Cal.3d at pp. 756-757 [evidence of defendant’s statements did not violate section 1101 because it showed future intent to kill any police officer who arrested him].) In admitting the evidence,the trial court abusedits discretion. C. The Evidence of Appellant’s Statements to the Robbery Investigators Was More Prejudicial than Probative For the reasons that appellant’s purported statements to the robbery investigators were irrelevant, their probative value was weak and was outweighedbytherisk of prejudice. (Evid. Code, § 352.) Even if found to be relevantto intentto kill, the statements were cumulative of other evidence. As defense counsel conceded, the circumstances surrounded the killings themselves established intent to kill. (17 RT 5776.) Furthermore, at the time the court admitted the statementsatissue, it had already found ® (...continued) Except as providedin this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s characteror trait of his or her character (whetherin the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible whenoffered to prove his or her conduct on a specified occasion. 232 admissible appellant’s statement to Baker indicating that if he committed another robbery, he would kill any witnesses. (11 RT 4040-4041.) Therefore, appellant’s statements were of minimalor no probative value in this case. | On the other hand, the prejudicial effect of the evidence was enormous. It is difficult toimagine anything more inflammatory in a prosecution for robbery-murder than evidence that the defendant was invited by a body of law enforcementofficers to address them in the manner of an expert in committing robberies, and then told those officers that when committing a robbery, he would have killed anyone whoresisted. If probative of anything, the evidence wasprobative of a propensity to commit. murder; it suggested that appellant was the type of person who would not hesitate to kill in order to accomplish a robbery. “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which hasvery little effect on the issues.” (People v. Karis, supra, 46 Cal.3d at p. 638, quoting People v. Yu (1983) 143 Cal.App.3d 358, 377.) The evidence here at issue is precisely the type of evidence described: it was extremely likelyto elicit in the jury an emotional response, to cause them to dislike appellant, to fear him, to brand him as a person of bad character and view him as “a dangerousperson, more likely than others to have committed the present offenses.” (Peoplev. Thompson, supra, 45 Cal.3d at p. 109 [stating that this is the risk of admitting evidence that the defendant planned other crimes, even if there’s no evidence that he committed them].) It invited the jury to believe that because appellant committed robberies in the past and would havekilled anyone whoresisted then, he did so in this case. It was impermissible 233 propensity evidence. In finding that the probative value outweighed the prejudicial effect, the trial court found that appellant had been planning to commit a robbery and avoid apprehensionforit, and that in light of that, the statements took on ‘“‘a new and different meaning.” (17 RT 5789-5790.) The court relied on Webster’s testimony that appellant told her how to use disguises and Nu- Skin to thwart identification. (17 RT 5790.) However, there was no evidence that Nu-skin or any disguise was used in the crimes committed at The Office. Thus, if the evidence suggested that appellant was planning a crime, it was not the crime involvedin the present case. Moreover, even if there was other evidence that appellant had been planning a robbery,that evidence did not change the nature of the statements that he reportedly made to the robbery investigators several months before the crimes. The fact remains that Curley and Voudouris stated unequivocally that appellant made no statements suggesting he was even considering committing robbery ever again. Thus, the court’s reasoning fails to withstand scrutiny. The central factual issue in dispute was identity. The prosecution contended that appellant killed Tudor and Manuel, and the defense countered that Webster or her brother, Steve Langford, had done so. Appellant did not dispute intent to kill. Under these circumstances, it was particularly likely that the jury would be unable to follow the limiting instruction limiting use of appellant’s statements to the “specific intent or mental state” required for the crimes charged and would regard his remarks as evidence ofpropensity to rob and kill and therefore ofguilt. Accordingly, the trial court abused discretion in admitting the evidence. 234 D. The Admission into Evidence of Appellant’s Statements to Robbery Investigators Resulted in a Miscarriage of Justice Asindicated above (see ArgumentI.E, ante), the evidence actually connecting appellant to the murders left room for reasonable doubtas to appellant’s guilt. The erroneously admitted evidence of appellant’s statements to the robbery investigators, probative of nothing other than appellant’s propensity for violence, surely helped convincethe jury to convict. The prosecutor’s comments during closing argument demonstrate the importance of this evidence and the effect that it must have had on the jury. The prosecutor argued that, based on the statements that Voudouris and Curley attributed to appellant at the two speaking events, appellant was not reformed, but was the kind ofperson who would kill without even thinking about it. (22 RT 7335.) Obviously referring to the question regarding what appellant would have done if he had met with resistance during a robbery, the prosecutor argued, “A question is asked that really kind of cuts right to the coreof what’s going on andit just kind of flows on out. Easy answer. That’s what happens. Youjust kill ‘em.” (22 RT 7335.) The prosecutor argued that the answer was memorable because it was so “chilling” and “upsetting” to Voudouris and Curley. (22 RT 7335-7336.) “Whatit establishes is that Charles Case is honestly so completely committed to this stuff that he can’t hide it. He just simply can’t hide it. It just flows out of him because that’s what he is.... Heis truly a professional criminal.” (22 RT 7336.) The prosecutor argued that evidence of appellant’s purported statements to Voudouris and Curley “showsthe thought process,the state of mind of the defendant with regard to his willingness to use deadly force when committing a robbery. If he determinesthat it’s appropriate and 235 necessary for whatever reason, he will be the judge of that. And he has no bones about it.” (22 RT 7569.) Thus, the prosecutor invited the jury to use the evidencein precisely the mannerthat it could not properly be used: as evidence that appellant | had a propensity to kill. Encouraged by the prosecutorin this fashion, the jury undoubtedly was unable to determine dispassionately what, if anything, appellant’s statements to the robbery investigators indicated abouthis state of mindat the time of the crimes charged. The emotional force of the evidence, together with the prosecutor’s argument, impaired the jurors’ ability to analyze the relevance of the evidence for themselves and to disregardit if, for example, they found no evidence that Tudor or Manuel resisted the robbery. The prejudice flowing from theerroneous admission of appellant’s statements to the robbery investigators is not undercut by Jerri Baker’s testimony regarding the conversation that she had with appellant in her backyard. Bakertestified that appellant said if he were to commit a robbery, he would haveto kill any witnesses. (18 RT 6104.) The question that he reportedly answeredat the robberyinvestigators’ events had to do with resisters. Baker’s testimony was of questionable credibility in any event. Baker could not rememberexactly what appellant said. More importantly, Baker had not mentioned anything about this purported conversation with appellant until many months after the crime and numerouscontacts with law enforcement, after she had readall the police reports, started seeing someoneelse and stoppedvisiting appellant. (18 RT 6102, 6209, 6298-6299.) Havingread the police reports, she was presumably aware of the report regarding appellant’s statements to the robbery investigators. Because of the possibility that she was motivated by anger toward appellant, her testimony regarding the backyard statement undoubtedly had far less impact than the statements to the robbery investigators, and the admission ofthe latter evidence wasprejudicial notwithstanding Baker’s testimony. Viewed independently or together with the other numerousitems of improperly admitted evidence that had a similar effect, the erroneous admission of appellant’s statements essentially ensured a verdict of capital murder. Thetrial court’s error resulted in a miscarriage ofjustice, and reversal is required. (People v. Watson (1956) 46 Cal.2d 818, 835-836.) E. The Error Rendered Appellant’s Trial Fundamentally Unfair In Violation of the Due Process Clause of the Fourteenth Amendment In addition to violating state law, the erroneous admission of appellant’s statements to the robbery investigators violated appellant’s right to a fair trial under the Due Process clause of the Fourteenth Amendment.” Underthe authorities set forth above (see ArgumentIJ.D, ante), the admission ofirrelevant and inflammatory evidence maysoinfect the trial with unfairness that due processis violated. The factors that made the error a miscarriage ofjustice, as discussed in Section C, ante, also madeit a due processviolation. Furthermore, the factors which, in.McKinney v. Rees (9" Cir. 1993) 993 F.2d 1378, led the Ninth Circuit to find that the admission of ™ As set forth above (fn. 37, ante), the trial court deemed all of appellant’s objections understate statute to have been made on constitutional grounds as well. (1 RT 1018; 2 CT 308-310.) The constitutional error is therefore preserved for appeal. Moreover, appellant’s objection based on Evidence Code section 352 also preserves the claims. (See People v. Partida (2005) 37 Cal.4th 428, 433-439 [defendant’s trial objection under section 352 rendered cognizable on appeal his claim that admission of gang evidenceviolated his due processrights].) 237 other crimes evidence violated due processare also present. The prosecution’s case against the defendant wassolely circumstantial andleft room for doubtas to appellant’s guilt. (See Argument I.E, ante.) The evidence of appellant’s statements to robbery investigators related to appellant’s prior robberies, which involved the very crime charged in the present case. As shownabove,the prosecutorrelied on the evidence of appellant’s statement as a significant part of his case-in-chief and as a focus of his argument to the jury. (See section C, ante.) Finally, the evidence undoubtedly provoked an emotional response such as contempt and angerat appellant. The effect of admitting the evidence was to impair the jury’s ability to properly assess the evidence that actually connected him to the charged crimes. Viewed in the context of the entire trial, the evidence of the statements rendered the trial fundamentally unfair. As set forth above (see ArgumentII.D, ante), such error cannot be deemed harmless. However, even if the federal harmlesserror test applies, reversalis required, as the state cannot show that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) H H 238 Vv THE TRIAL COURT ERRONEOUSLY EXCLUDED RELEVANT EVIDENCE OF DETECTIVE REED’S INCOMPLETE INVESTIGATION Stan Reed, a detective with the Sacramento County Sheriff's Department, was one of two principal investigators regarding the crimes for which appellant is sentenced to death. Reedalsotestified for the prosecutionattrial, corroborating the testimony of Mary Webster. While examining Reed as a defense witness, defense counsel soughtto revealthe gaps and inconsistencies in Reed’s investigation. Thetrial court unfairly foreclosed this examination, finding that any evidence about Reed’s lack of knowledge concerning inconsistent statements made about the gun used in the murders and clothing worn by appellant wasirrelevant. The trial court’s error not only constituted state law evidentiary error, but violated appellant’s rights to present a defense andto fairtrial underarticleI, sections 7 and 15 of the California Constitution and the Sixth and Fourteenth Amendmentsto the federal Constitution. A. The Trial Court Cut Off Appellant’s Attempt to Examine Investigating Officer Reed about His Knowledge of Inconsistent Witness Statements Regarding the Murder Weaponand Bloody Clothing During a meeting with Detectives Reed and Edwardsat the police station, Webster stated that she took the gun used in the murders out of the car. (21 RT 7001.) Webster’s brother, Stephen Langford, however, admitted during his testimony that he told the prosecutor and the prosecution’s investigator that he retrieved the gun from the car. (20 RT 6703.) Langford toldthe prosecution team that he picked up the box in the back seat on the floor area of the car and that there was heat coming off of the barrel of the gun. (20 RT 6705.) Called as a witness for the defense, investigating officer Reed testified that Mr. Druliner, the prosecutor, had told him about Langford’s statement about heat emanating from the gun. (21 RT 6972.) Reed clarified that he did not learn about Langford’s statement about heat coming off of the gun until after Langford had testified at trial. (21 RT 6972.) Reed, however, never heardfrom Langford that he wasthe onethat got the gun out of the car. (21 RT 6973.) Reed testified that knowing who handled the gun would have been important to his investigation. (21 RT 6973.) Defense counsel asked Reed, “And were you ever made aware of this by anyoneprior to court?” (21 RT 6973.) The prosecutor objected to this questioning as irrelevant. (21 RT 6973.) Defense counsel argued that the evidence was relevant to whether the detectives had conducted a complete investigation. Specifically, as defense counsel explained, the evidence wasrelevant to show whether Reed knew that there was another story about whoretrieved the gun. (21 RT 6973.) Thetrial court sustained the prosecutor’s objection. (21 RT 6973.) Defense counsel then asked, “So you never knew that Mr. Langford had made a statement that he had obtained the gun from the car[?]” (21 RT 6973.) The prosecutor objected again, and thetrial court sustained the objection. (21 RT 6973.) Subsequently, based on Langford’s trial testimony that appellant changed his clothes at Webster’s house (20 RT 6699, 6701), defense counsel asked Reed, “Did you know that Mr. Langford also indicated that Mr. Case had changedhis clothes at Mary Webster’s house, changedinto a new set of clothing there?” (21 RT 6973-6974.) The prosecutor again objected on relevancy grounds andthetrial court sustained this objection. 240 (21 RT 6974.) Thereafter, defense counsel asked to be heard on the issue outside the presence of the jurors. (21 RT 6974.) With the jurors absent, defense counsel argued that whether a complete investigation was done wasrelevant to the jury’s determination of guilt. (21 RT 6974.) Defense counsel explained that other law enforcement officials knew there were inconsistencies in the statements ofkey witnesses and failed to inform investigating officer Reed; such evidence was relevant to the jury’s decision regarding whether appellant was guilty or not. (21 RT 6974-6975.) Further, defense counsel argued, Reed hadjust testified that this information Langford provided would have been importantto his investigation. (21 RT 6974-6975.) Thetrial court responded: Well, you’re askingthis particular detective what he considers to be important insofar as the investigation is concerned. That’s really irrelevant to what the jury considers important as whatis relevant. This case has to be decided on what was done and what evidence has been presented. If there are inconsistencies in that evidence or there are gapsin that evidence, then that’s the state of the evidence and that’s the facts upon which the jury must rely in reaching their decision. (21 RT 6975.) Defense counsel agreed with the trial court about the evidence containing inconsistencies. However, heasserted that he should not be precluded from asking Reed what facts he knew of during the course of his investigation, which wouldlay a foundation for his argument about what Reed knew or did about inconsistencies in the prosecution’s case. (21 RT 6975.) The prosecutor asserted that defense counsel had madea similar objection to the questioning of a prior witness, but defense counsel pointed out that the defense had raised a hearsay objection. (21 RT 6975.) The prosecutor remarked: “The same objection would land here, then, wouldn’t it?” (21 RT 6975) Thetrial court sustained the objection. (21 RT 6976.) 241 B. The Trial Court Erroneously Precluded Appellant from Eliciting Evidence of Investigating Officer Reed’s Knowledge about the Murder Weapon and Bloody Clothing, Even Though the Evidence Was Relevant to Impeach Reed’s Credibility and Raise Doubt about the Prosecution’s Case by Showing That the Police Investigation Was Inadequate and Incomplete Thetrial court erred in precluding appellant from examining investigating officer Reed about the inconsistent statements prosecution witnesses made about the gun and clothing Mary Webster turned overto police. The record clearly showsthat the prosecutor objected on the grounds of relevance. (21 RT 6973.) “Relevant evidence’ means evidence, including evidence relevantto the credibility ofa witness, having any tendency in reason to prove or disprove any disputed fact that is of consequenceto the determination of the action.” (Evid. Code, § 210, italics added.) All relevant evidence is admissible at trial unless excluded by statute. (Cal. Const., art. I, § 28, subd. (d); Evid. Code, § 351.) Defense counsel’s questions soughtto elicit relevant evidence. Contrary to the trial court’s understanding, defense counsel’s questions did not seek to establish what Reed thought was important to the investigation. (21 RT 6975.) Defense counsel simply notedthis fact, pointing out that Reed already had testified that identifying who hadretrieved the gun from the car was important. (21 RT 6974-6975.) Nor were defense counsel’s questions trying to prove or disprove the gaps and inconsistencies in the prosecution’s evidence. Those too already had been established, as defense counsel acknowledged. (21 RT 6976.) Rather, the excluded examination was relevant because defense counsel’s questions were designed to impeach Reed’s credibility by 242 showing the inadequacyofhis investigative work and thusto establish that the flawed investigation raised a reasonable doubt about appellant’s guilt. (See Evid. Code, §§ 780, subds.(c), (d), (f) and (i).)” By prohibiting defense counsel’s questions, the trial court denied appellant the opportunity to lay the foundation needed to question the quality of the sheriffs investigation. Depending on Reed’s answers to questions about the inconsistencies in the gun evidence and clothing evidence, defense counsel could have argued his characterization of the investigation to the jury —Le., - that Reed’s investigation wasslipshod, either because he deliberately failed to look into evidence that was inconsistent with Webster’s story or because others working on the investigation shielded him from evidencethat contradicted the information he obtained from Webster, his primary source. In this way, Reed’s knowledge of, and actions in responseto, inconsistencies in the evidence law enforcement gathered were probative of his credibility and the sufficiency of the prosecution’s case. Reed, as the lead investigating officer, not only headed up the investigation butalso- testified for the prosecution, corroborating and bolster the credibility of Mary Webster. (18 RT 6335-6343.) To the extent that Reed based his testimony on incomplete information, his credibility and the-credibility of the investigation would have been tarnished. The United States Supreme Court has recognized that substandard police investigation can cast doubt on the prosecution’s case.. (See Kyles v. Whitley (1995) 514 U.S. 419, 446, fn. 15 [”When . . the probative force of evidence-depends on the > Thecredibility of a witness may be attacked or supported by any party, including the party calling the witness. (Evid. Code, §785; see People v. Stanley (1967) 67 Cal.2d 812, 816, fn. 1 [defense can impeach own witness].) 243 circumstances in which it was obtained ... , indications of conscientious police work will enhance probative force and slovenly work will diminish it”]; see also id. at p. 442, fn. 13 [discussing the utility of attacking police investigations as “shoddy”].) So have other courts. (See, e.g., Bowen v. Maryland (10Cir. 1986) 799 F.2d 593, 613 [*A commontrialtactic of defense lawyersis to discredit the caliber of the investigation,” and courts consider such use in assessing Brady error]; United States v. Sager (9th Cir. 2000) 227 F.3d 1138, 1145-1146 [trial court committed plain errorin excludingas irrelevant evidencerelating to police investigation, and in instructing jurors to refrain from “grading” the investigation, which removed from the jury potentially relevant information].) In contrast, the trial court here mistakenly failed to perceive the relevance of defense counsel’s line of questioning. Outside the presence of the jury, the subject of hearsay was raised whenthe prosecutor noted that defense counsel had madea similar objection during the examination of defense investigator Tony Gane. (21 RT 6975.)”° Correcting the prosecutor, defense counsel explained that the defense objection was based on hearsay, not relevance. (21 RT 6975.) The prosecutorreplied, “The same objection would land here, then, wouldn’t it?,” but said nothing more about hearsay. (21 RT 6975.) Thetrial court simply stated that there was no needto relitigate the Gane objection. (21 RT 6976.) Making no mention of hearsay, defense counsel further argued ’® The prosecutor was presumably referring to defense counsel’s objection when the prosecutor asked Gane whether he knewthat appellant had been to The Office more than two times. (20 RT 6907.) Defense counsel objected on hearsay grounds, pointing out that Gane knew only what people had told him. (20 RT 6907.) 244 niceRORgee his position. Without further commentfrom the prosecutor and without addressing the hearsay rule, the trial court sustained the prosecutor’s objection. (21 RT 6975.) Fairly read, the record does not reflect a hearsay objection by the prosecution. He did not expressly object under the hearsay rule. Neither the court nor the parties appears to have understoodthat the exchange between defense counsel and the prosecutor abouta different objection to a different question to a different witness raised a hearsay objection to the questioning ofReed. But even assuming a hearsay objection were adequately raised,it would not have supportedthetrial court’s ruling. The out-of-court statements were not offered for their truth, which would have been barred by the hearsay rule (Evid. Code, § 1200, subd. (a)), but to show whether Reed had knowledge of statements made to other law enforcementofficers. Whether Reed knew about contradictory statements concerning the gun and clothing wasrelevant to disputed issues: the quality of the investigation, Reed’s credibility as the prosecution’s lead investigator and the sufficiency of the prosecution’s case. Thus, the statements were admissible for nonhearsay purposes. (People v. Turner (1994) 8 Cal.4th 137, 189 [“An out-of-court statement is properly admitted if a nonhearsay purpose for admitting the statement is identified, and the nonhearsay purposeis relevant to an issue in dispute.”], abrogated on other grounds in People v. Griffin (2004) 33 Cal.4th 536; see People v. Laymen (1931) 117 Cal.App. 476, 478 [in prosecution for perjury regarding street car accident, train dispatchers’ testimony that they received no report of accident held not hearsay]; see also People v. Scalzi (1981) 126 Cal.App.3d 901, 907 [“‘evidence of a declarant’s statementthat is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such 245 information to be true, acted in conformity with that belief. . . is not hearsay, since it is the hearer’s reaction to the statementthat is the relevant fact sought to be proved, not the truth of the matter asserted in the statement.’”].) Because the evidence appellant soughtto elicit was relevant and was notoffered to prove the truth of the mattered asserted, defense counsel’s proposed examination of Reed about the inconsistencies in the gun and clothing evidence wasnot barred by the hearsayrule. The Court’s decisions in People v. Valdez (2004) 32 Cal.4th 73 and People v. Page (2008) 44 Cal.4th 1, 34, do not require a different result. Both decisions, which affirmed exclusion of evidence of incomplete police work,are distinguishable. In Valdez, a murder case, defense counsel intended to challenge and underminethe police investigation of the murder, specifically the failure to investigate and pinpoint the source of shoe prints discovered at the crime scene. (/d. at p. 108.) The trial court excluded the evidence under Evidence Codesection 352, finding that the evidence would unduly consume time and would create a substantial danger of-confusing the issues and misleading the jury. This Court upheld thetrial court’s ruling, finding that the probative value of the attack on the investigation waslimited andthetrial court’s ruling was proper. (dd. at p. 109.) It also noted that the trial court permitted defense counsel to question the police officer aboutthe investigation of a group of individuals found near the crime scene, including about “whether shoe comparisons were made ofthe group or whether the individuals gave a reason for beingin the alley so late at night,” but defense counsel declined to do so. (Ud. at p. 110.) This Court’s ruling implicitly supports a finding of error in appellant’s case becauseit implicitly recognizes what thetrial court here denied: that the excluded evidence was relevant. Moreover, in appellant’s case, there were 246 no issues regarding undue consumption of time or misleading the jury, and, unlike defense counsel in Valdez, appellant’s attorneys were not offered an alternative line of questioning that might have served a similar evidentiary purpose as the prohibited examination. In Page, defense counsel sought to introduce evidence that police failed to record the name of a witness who saw the victim on the night of her murder and evidence that police focused on the defendant to the exclusion of other suspects. (People v. Page, supra, 44 Cal 4"at p. 34.) This Court upheldthetrial court’s ruling excluding the evidence, finding that the evidence had no tendencyto establish any relevant fact. This Court held that police attempted, but failed, to verify the purported sighting of the victim, and that for valid and objective reasons, the defendant quickly became the prime suspect and the police elected not to investigate other potential suspects more thoroughly. The Court held that the possibility the police may have chosen not to follow up more thoroughly onall leads did not impeach the evidence against the defendant. (Jbid.) In appellant case, by contrast, the evidence of an incomplete investigation went to facts that were central to the prosecution’s case: the originof the bloodstained clothes and the murder weapon. Cc. The Trial Court’s Error in Precluding Relevant Examination of Investigating Officer Reed about the Murder Weaponand the Bloody Clothing Violated Appellant’s State and Federal Constitutional] Rights to Present a Defense and to a Fair Trial In addition to violating state evidentiary law, the trial court’s error in limiting appellant’s examination of investigating officer Reed violated appellant’s state and federal constitutional rights to present a defense and to 247 a fair trial under the Sixth and Fourteenth Amendments to the Federal Constitution, and Article I, sections 7, subdivision (a), and 15 of the - California Constitution.” “[A] criminal defendantis constitutionally entitled to present all relevant evidence ofsignificant probative value in his favor... .” ( People v. Marshall (1996) 13 Cal.4th 799, 836; People v. Northrop (1982) 132 Cal.App.3d 1027, 1042, disapproved on another ground in People v. Smith (1984) 35 Cal.3d 798, 808; accord, United States v. Scheffer.(1998) 523 U.S. 303, 308.) The compulsory process and confrontation clauses ofthe Sixth Amendmentand the due process clause of the Fourteenth Amendment to the United States Constitution guarantee criminal defendants “the right to present a complete defense.” (Crane v. Kentucky (1986) 476 U.S. 683, 690-691.) Few rights are more fundamental than that of the accused to “present his version of the facts as well as the prosecution’s to the jury so it may decide wherethetruth lies.” (Washington v. Texas (1967) 388 US. 14, 19; see also Chambers v. Mississippi (1973) 410 U.S. 284, 294 [the right of an accused to due process of law “‘is, in essence,the right to a fair opportunity to defend against the State’s accusations]”’.) Thetrial court’s exclusion of impeachment evidence pertaining to Reed’s knowledge of other inconsistent witness statements restricted appellant’s ability to present his defense that Webster framed appellant for the crimes. Inconsistent statements made by Langford and Webster should have impacted the investigation of the case. Further, whether Reed knew of those inconsistencies and acted upon them dictated the course of the 77 As noted above(see fn. 37, ante), defense counsel’s federal objections were preserved. (1 CT 308; 1 RT 1018.) 248 investigation. Demonstrating that Reed did not know about the inconsistencies between Langford’s and Webster’s testimony was important to appellant’s defense that Webster framed appellant. Withoutthis evidence, appellant was not able to present fully his version of the facts. D. The Trial Court’s Error in Restricting Appellant’s Examination of Investigating Officer Reed about the Murder Weaponand Bloody Clothing Requires Reversal of Appellant’s Convictions Thetrial court’s error in restricting defense examination ofofficer Reed about his knowledge of inconsistent statements concerning the murder weapon and bloodstained clothing requires reversal. Understate law, reversal of the guilt verdict is required if there is a reasonable probability appellant would have achieved a more favorable result but for the erroneous exclusion of the evidence. (People v. Watson (1956) 46 Cal.2d 818, 836) Underfederal constitutional law, reversal is required unless the State can prove that the error was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24.) Reversal of appellant’s convictionsis required undereither standard. Contradictory information about who had retrieved the gun from the car and the clothing worn by appellant wasdirectly relevant to the question of identity, the primary issue in dispute in the case. Central to appellant’s defense was Langford’s testimony contradicting Webster on the key issues of who had handled the gun and what appellant was wearing on the night of the crimes. Excluding evidenceof that the investigation was incomplete and disorganized effectively bolstered unfairly the credibility of the prosecution’s main witness, Mary Webster, and thus the prosecution’s entire case, which rested heavily on Webster’s credibility. In their opening statement and closing argument, defense counsel pointed out that Webster’s 249 and Langford’s stories were contradictory (11 RT 4159, 22 RT 7523-7527) and explained the importance of these issues (11 RT 4160, 22 RT 7412- 7413), but were unable to show that these contradictions were not investigated. The contradictions that defense counsel hopedto reveal supported the theory that Webster and Langford had framed appellant for the murders. (11 RT 4163.) Defense counsel noted that Langford’s story had changed repeatedly and that Webster had coached him with a written script, but that document was missing. (22 RT 7412-7413.) The person from whom appellant allegedly purchased the gun had not been identified. (22 RT 7414.) The box in which the murder weapon was found had not been tested for the presence of blood. (22 RT 7418.) The moneyin Webster’s possession hadnotbeentested for fingerprints or the presence of blood. (22 RT 7418.) The detectives had not asked Grimes, one ofthe last customers in The Office before the murders, what appellant was wearing when Grimes saw him that night. (22 RT 7428.) Reed’s lack of knowledge of statements made about the gun and clothing would havereflected the detectives’ failure to identify and investigate other possible suspects and would have revealed that the officers had based their entire investigation on the assumption that Webster’s version of events was true, without having investigating it sufficiently. Such evidence would have provided significant additional reason to doubt the prosecution’s theory of the crime. The excluded evidence wasalso critical to the jury’s assessment of Reed’s credibility as a testifying witness, which was also importantto the prosecution’s case. Reed’s testimony outlined the investigation and corroborated Mary Webster, appellant’s main accuser. Had the jurors heard that Reed did not know about Langford’s statements pre-trial, or that other detectives knew about the statements, but did not bring them to Reed’s 250 attention, they would have realized that Reed’s testimony andentire approachto the investigation were based on incomplete information and were inappropriately biased toward believing Webster. In sum, had the evidenceat issue not been excluded, the jurors would have perceived significant additional reason to doubt the prosecution’s case for guilt. On this record, it is reasonably probable that the result of the proceeding would have been different — that at least one juror would have had a reasonable doubtas to appellant’s guilt and would have refused to convict — if the erroneously excluded evidence had been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836.) Similarly, the error was not harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. at p. 24.) Accordingly, appellant’s convictions and death sentence must be reversed. / // 251 VI THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED DUE PROCESS BY PERMITTING THE PROSECUTION TO PRESENT APPELLANT’S STATEMENT ON REBUTTAL RATHER THAN IN ITS CASE-IN-CHIEF Although thetrial court ruled that appellant’s statement to interrogators was admissible for all purposes, the prosecutor waited until the very close of his case in rebuttal before introducing it. The prosecutor’s reasons for withholding the interrogation statement from his case-in-chief and introducing it only after he had heard the defense case are unknown. His timing, however, suggests at least two possibilities. First, he may have had qualms about whether appellant’s statement was lawfully obtained, but after hearing the defense evidence, was concernedthat the likelihood of securing convictions was in jeopardy and decided to use appellant’s statement even if it meant risking reversal on appeal. Second, the prosecutor, for strategic advantage, may have planned from thestart oftrial to hold the statementuntil the end of his rebuttal, when the defense would have difficulty responding to the evidence. Whatever the prosecutor’s motive, it is clear that, over appellant’s objection, the trial court permitted the prosecutor to present appellant’s statement at the last possible moment before the jury retired to deliberate, thereby maximizing the statement’s dramatic effect. This ruling was an abuseofdiscretion and violated appellant’s due processright to fundamental fairness. (Cal. Const., art. I, § 15; U.S. Const., 14" Amend.) 252 A. After the Prosecutor Had Chosen Not to Present Evidence of Appellant’s Interrogation Statement in His Case-in-Chief, the Trial Court Nevertheless Permitted Him to Present Such Evidence as Part of His Case in Rebuttal Before opening statements, the trial court ruled that appellant’s statementto his interrogators was admissible withoutlimitation. (11 RT 4067-4068.) Although the prosecutor had argued in favor of the admissibility of appellant’s statement (11 RT 4060-4066; 2 CT 423-429), he did not present that evidence until the very end ofhis case in rebuttal, after the close of the defense case and the testimony ofthe all other rebuttal witnesses. (21 RT 7197-7203B.) Appellant objected that the evidence was improperrebuttal, and that the prosecutor had forfeited his opportunity to present the evidence by not presenting it in his case-in-chief. (21 RT 7204- 7209.) The trial court overruled the objection and allowed the prosecutor to present appellant’s statements on the following four subjects: (1) that on the morning ofthe interrogation (i.e., June 21, 1993), he had seen the television news about the homicide that had happenedthe night beforeat The Office (21 RT 7217, 7226);”* (2) that on the night of the homicides, he ’® The court admitted two statements in this regard. The first was: Reed: Ah, we’re investigating a homicide that occurred Jackson Highway and Bradshaw Road. Occurredlast night. You may have seen it on the news. Appellant: Yeah (Aug CT of 11/10/09 Appendix A,p. 1: 10-13; see also 21 RT 7252.) Second, when oneofinterrogating detectives stated to appellant that a homicide had occurred at The Office bar the previous night, appellant (continued...) 253 was at The Office with a girlfriend named Sue, that he took Sue homeat around 6:00 or 7:00 p.m., that he went back to The Office, arriving there at around 7:30 or 8:00 p.m. and that he stayed there shooting pool by himself until about 8:55 p.m (21 RT 7230-7232); (3) that when he went to The Office on the night of the homicides, he drove Jerri Baker’s Ford Probe (21 RT 7232-7233); (4) that when askedifhe could explain the bloody clothing that Webster said she had gotten from him, appellant said, “I guess you’ll have to talk to Mary about that,” that he had no idea what she wastalking about and had no idea whether the blood would match the people’s in The Office, that the clothes werehis, that he had gotten the blood on them from shaving, that the people were alive whenheleft the bar and that the reason that he did not have any marks onhis face from shaving wasthat he “healed fast” (21 RT 7248-7250). Detective Reed then testified before the jury, recounting appellant’s statements in these four areas. (21 RT 7252-7258.) B. Evidence of Appellant’s Statement Was Improper Rebuttal The scope of rebuttal evidence is generally within the trial court’s discretion, and on appeal, the question for the-reviewing court is whether that discretion was abused. (Pen. Code, § 1093, subd. (d); Peoplev. Wallace (2008) 44 Cal.4th 1032, 1088.) However, the trial court’s discretion is not unlimited. Rebuttal “is restricted to evidence that is made necessary by the defendant’s case,i.e., is responsive to proof introduced by the defendantthat is net-implicit in his denial of guilt.” (People v. Jackson (1980) 28 Cal.3d 264, 333 [citations omitted]; 7 Wigmore, Evidence 8 (...continued) responded, “I seen it on TV this morning.” (Aug CT of 11/10/09 Appendix A, pp. 4: 28 - 5: 2.) 254 (Chadbourn rev. 1978) § 1873 [‘[T]he usual rule [on rebuttal evidence] will exclude all evidence which has not been made necessary by the opponent’s case in reply.”].) This Court has articulated the purpose ofrestricting what can be presented on rebuttal as follows: The purposeofthe restriction in [then Penal Codesection 1093, subdivision 4, now section 1093, subdivision (d)] is to assure an orderly presentation of evidenceso that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducingit late in thetrial; and to avoid any unfair surprise that may result when a party whothinks he has met his opponent’s case is suddenly confronted at end oftrial with an additional piece of crucial evidence. Thus proper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission ofthe crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt. [Citations.] . (People v. Carter (1957) 48 Cal.2d 737, 753-754.) That is, the main purpose ofthe statute is to prevent gamesmanship and sandbagging. “[T]he governing consideration is fairness.” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 546, pp. 782-783.) Evidence which is “obviously central to the criminal prosecution . . should be proved as part of the prosecution case-in-chief.” (People v. Daniels (1991) 52 Cal.3d 815, 860.) Evidence that the defendant has made admissions regarding the charged crime “tends to establish the defendant’s 999commission of the crime’” and is improperrebuttal; it should be presented, if at all, in the prosecution’s case-in-chief. (People v. Thompson (1980) 27 Cal.3d 303, 330-331, quoting People v. Carter, supra, 48 Cal.2d at p. 753.) 255 This is particularly true where the defendant does nottestify. (See,e.g., People v. Crew (2003) 31 Cal.4th 822, 846 [defendant’s admission that he killed victim was improperrebuttal evidence at the penalty phaseas it did not counter any evidence presented by the defense]; People v. Daniels, supra, 52 Cal.3d at p. 859 [trial court abused its discretion by permitting evidence of the defendant’s admissionsto be introduced in rebuttal where defendant did not testify and statement was an implied admission of guilt]; People v. Robinson (1960) 179 Cal.App.2d 624, 630 [prosecutor had duty to present evidence of confession before resting his case, when the testimony was then available and there was no reason for not offering it in _ the case-in-chief].) Underthese well-settled principles, appellant’s interrogation statement wasnot proper rebuttal. The trial court had ruled prior totrial that the prosecutor could present evidence of appellant’s interrogation in its case-in-chief. Appellant did not testify, and appellant’s statement did not actually rebut any evidence presented by the defense. Regardless of whether the prosecutor intended all along to present the evidence in rebuttal or decided to do so only after he saw the strength the defense case, the tactic of reserving it until after the defense had rested was nothing short of sandbagging. This Court has condemnedsuchtactics: “It is improper for the prosecution to deliberately withhold evidence that is appropriately part of its case-in-chief, in order to offer it after the defense rests its case and thus perhaps surprise the defense or unduly magnify the importanceofthe evidence. (People v. Coffman (2004) 34 Cal.4th 1, 68.) The prosecutor here engaged in unfair gamesmanship. Thetrial court abusedits discretion in condoningthis practice, and as a result, appellant’s trial was fundamentally unfair. (See Estelle v. McGuire (1991) 502 U.S. 62, 67; 256 Walter v. Maass (9" Cir. 1995) 45 F.3d 1355, 1357 [erroneous admission of evidence violates Due Process whenit renders trial fundamentally unfair]; see also People v. Coffman, supra, 34 Cal.4th at p. 59 [assumingthat prosecutor’s use of defendant’s statements was fundamentally unfair, but finding the error harmless in light of abundant evidence of guilt].) 1. Appellant’s Statement That He Had Seen Coverageof the Killings on the Television News Thetrial court allowed the prosecutor to present evidence of the portions of appellant’s statement in which he said that on the morning ofhis arrest and interrogation, he hadseen television news coverage of the shootings at The Office. (Aug CT of 11/10/09 Appendix A,pp. 1, 4.) The trial court ruled: And with regard to the first offer of rebuttal evidence on behalfof the Prosecution relating to the fact that the defendant was watching the news, the Court finds that these assertions in the defense case were not implicit in his denial of guilt and, therefore, this is proper rebuttal and the Court will allow this section to be used. (21 RT 7217.) A few minuteslater, the court added: Court: Notto revisit the last ruling, but, for example, the Defense put on evidence that nobody could have been watching the newsat the time that this witness said they were watching the news..... And the evidencethat rebuts that is your client’s statement that he was watching the news. Defense Counsel: And the fair inference being it could have beenat that time, I guess. Court: Right. (21 RT 7226.) 257 In the prosecution’s case-in-chief, Greg Nivens, Mary Webster’s son, testified that he had arrived at his mother’s house sometime in the morning on June 21, 1993 (the day of appellant’s arrest), and at about 11:00 a.m., appellant was there also, watching the news ontelevision. (17 RT 5977- 5979.) Investigator Tony Ganetestified for the defense that the television schedule for that morning indicated.that there was no local news between 9:00 a.m. and 12:00 p.m. that day. (20 RT 6825-6826.) The prosecutor argued that appellant’s statement that he had seen coverageofthe killings on the television rebutted appellant’s attack on Nivens’s credibility. (21 RT 7210-7217.) In fact, appellant’s statement that he had seen something about the homicide on the television news that morning wasnot inconsistent with the defense evidence. Gane’s testimony addressed only what was on television between 9:00 a.m. and noon. Whenappellant stated that he had watched the news“this morning,” he could have been referring to any time between 12:01 a.m. and 11:59 am. Indeed, appellant could have watched the news on television at his home before he went to Webster’s. That is, both Gane’s testimony and appellant’s statement could have been true. Evidence of appellant’s statement therefore did not contradict, was not inconsistent with, and therefore was not “made necessary by” the evidence presented by the defense. Indeed, evidence that appellant had seen newsofthe charged crimes on television was not relevant to any material issue in dispute, and was arguably inadmissible for all purposes. (Evid. Code, § 350.) Even if marginally relevant, it was certainly improperas rebuttal evidence. 2. Appellant’s Statement That He Was At The Office On The Night of the Crime Thetrial court permitted the prosecutor to present appellant’s 258 statements to the interrogating officers (1) that on the day ofthe killings, he wasat The Office with a girlfriend named Sue (Aug CT of 11/10/09 Appendix A, p. 4); (2) that he took Sue homeat around 6:00 or 7:00 p.m. (id. at p. 5); (3) that he went back to The Office, arriving there at around 7:30 or 8:00 p.m.(id. at p. 5), and (4) that he stayed there playing pool by himself until about 8:55 p.m.(id. at pp. 5, 7). The prosecutor argued that the portion of the statement concerning Sue was admissible to rebut appellant’s attack on the credibility ofprosecution witness Susan Burlingame (21 RT 7200), but later conceded that the defense had not attacked Burlingame’s credibility on the issue of what time she had gotten home (21 RT 7227). The prosecutor argued that the portions of the statement in which appellant said he went back to The Office and stayed until 8:55 p.m. were admissible because appellant had attacked the credibility of prosecution witness Tracy Grimes. (21 RT 7200-7201.) Appellant’s counsel pointed out that the defense had not attacked Grimes’s identification of appellant or his time estimates (21 RT 7228-7231), but the trial court ruled as follows: | Well, let’s just say that itseems like a logical argumentto make. Sure, they chose to make it. And_should they choose to makeit, it would be supported by the evidence that they introduced during their cross-examination and duringtheir case in chief. Because the value or the weight of that identification, the validity of that identification has certainly been challenged implicitly. And I believe that this evidence does go to rebut the assertion that Tracy Grimesis identifying Mr. Case for some other reason than the fact that he actually saw him there, so it will be admitted. (21 RT 7231-7232.) The court admitted the portion of appellant’s statement that related to Burlingame “because it does tend to give more meaning to the testimony of Grimes.” (21 RT 7232.) These rulings were erroneous. 259 Appellant had not created any factual dispute that this portion of his statement tended to resolve. To the extent that appellant’s statementthat he wasat The Office until 8:55 p.m. was, in and ofitself, probative of his guilt, it should have been presented in the prosecution’s case-in-chief.. Appellant’s statementthat earlier that same day, he was at The Office with Sue Burlingame andthat he took her homeat around 6:00 or 7:00 p.m. was not relevant to any material disputed fact, and the court’s justification for allowing it did not fit within the limited role that rebuttal evidence may properly serve. During the prosecution’s case-in-chief, Grimestestified that on the night in question, he arrived at The Office at around 8:30 p.m. and stayed for five to ten minutes; Grimesidentified appellant as one of the patrons there at that time. (11 RT 4171, 4176, 4186.) Neither appellant’s cross- examination of Grimes nor the testimony presented during the defense case placed in dispute Grimes’s testimony that appellant was at The Office when Grimessaid he was there. The thrust of appellant’s cross-examination of Grimes concerned the inconsistency between his testimony on direct examination and his pretrial statements regarding what appellant was wearing at that time. (11 RT 4176-4178 [direct examination: appellant was wearing blue jeans, a sport shirt and roughed-up, grayish-brown cowboy boots resembling the boots in evidence]; 11 RT 4200 [cross-examination: Grimesdid notrecall telling a defense investigator that appellant was wearing a Levi-type shirt that was pale in color ortelling the police that appellant was wearing gray boots].) Appellant’s counsel did not question Grimes regarding how he wasableto identify appellant or at what time he was at The Office on the night in question. During the defense case, appellant called Detective Reed and 260 defense investigator Gane to testify to Grimes’s prior inconsistent statements concerning the clothing that appellant was wearing on the night of the killings. (20 RT 6894-6909, 6916-6925.) Appellant did not present any evidenceofalibi or any eyewitness identification expert. Appellant did not testify. Thus, the defense did not place in dispute Grimes’s identification of appellant or his testimony regarding the timing ofhis stop at The Office on the night in question. The cross-examination of Grimes regarding appellant’s shirt and boots went to what appellant was wearing on the night of the killings, which in turn wasrelevant to the defense theory that the blood had been planted on the clothes and bootsin evidence. Appellant’s cross-examination of Grimes regarding appellant’s clothing wasnot an attack on Grimes’s identification of appellant any more than appellant’s cross-examination ofSue Burlingame regarding appellant’s clothing on the day of the killings was an attack on heridentification of appellant. (See 13 RT 4707-4710, 4729-4731.) Appellant did not dispute that he was at The Office when Grimes said he was. Moreover, contrary to the trial court’s finding, appellant did not assert “that Tracy Grimes [was] identifying Mr. Case for some other reason than the fact that he actually saw him there.” (21 RT 7232.) Although defense counselelicited from the defense investigator that Grimes showed some animosity toward appellant (20 RT 6898), it was the prosecution that elicited from Grimes that he had seen appellant’s photograph onthe front page of the newspaper, that Grimes believed appellant had killed his friends and that if appellant was not convicted, Grimes and his friends would see that justice was done. (20 RT 6901.) The defense did not assert or imply that this bias disproved that appellant was at The Office when Grimes claimed. 261 Appellant’s statement that he had been at The Office until 8:55 p.m. on the night ofthe killings was relevant not to any particular issue that the defense had placed in dispute, but to the central question before the jury — i.e., Whether appellant killed Manuel and Tudor. It was “a material part of the case in the prosecution’s possession that tend[ed] to establish the defendant’s commission of the crime,” and as such, it was not proper rebuttal evidence. (People v. Carter, supra, 48 Cal.2d at p. 753 [evidence that a red cap similar to one worn by the defendant had been found with the murder victim’s wallet in a slough near the defendant’s house was “crucial evidence” of the defendant’s guilt and was therefore improper rebuttal evidence]; see also People v. Crew, supra, 31 Cal.4th at p. 846 [defendant’s statementthat he killed the victim was improperrebuttal evidence, as it did not counter any new evidence presented during the defense case]; People v. Daniels, supra, 52 Cal.3d at p. 860 [defendant’s admission suggesting that he had killed the victims was improperrebuttal evidence]; Peoplev. Robinson, supra, 179-Cal.App.2d at pp. 629-630 [in a prosecution for sale and possession of narcotics, evidence that the defendant had admitted using narcotics and receiving-a shipment of narcotics shortly before his arrest was improper as rebuttal evidence and should have been presented in the prosecution’s case-in-chief]; compare People v. Friend (2009) 47 Cal.4th 1, 40 [evidence that attorney for prosecution witness had not attempted to secure leniency for his client in exchange for his cooperation with the prosecution was not “crucial” or “material” to the prosecution’s case and therefore was not improperrebuttal].) The prosecution should not have been permitted to sandbag the defense by withholding this evidence until the last momentbefore the jury retired to deliberate; if the evidence wasto be presented, it belonged in the prosecution’s case-in-chief. 262 Thetrial court erred also in allowing the prosecution to introduce the portions of appellant’s statement concerning his date with Sue Burlingame on the day of the crime. On direct examination, Burlingametestified that she and appellant had gone to The Office on the day of the killings, they left the bar at about 6:30 p.m. and appellant then droppedheroff at the Dairy Queen near her daughter’s house. (13 RT 4641-4655.) Appellant’s counsel did not challenge that testimony on cross-examination or present any evidence that contradicted it. Indeed, the prosecutor concededthat the defense had not attacked Burlingame’s credibility on these points. (21 RT 7227.) The court found that this aspect of appellant’s statement gave “more meaning”to the testimony of Tracy Grimes. (21 RT 7232.) However, even if appellant’s statement made Grimes’s testimony make moresense, thatis not a_proper basis for permitting it in rebuttal. Evidence that appellant had been at The Office with Burlingameearlier on the day of the killings and had taken her home over an hour before Grimes saw him wasentirely consistent with Grimes’s testimony. Arguably, this portion of appellant’s statement was not relevant to any material issue in dispute. (Evid. Code, § 350.) Certainly, it was not “made necessary” by the defense case. It was therefore was improper rebuttal. (People v. Carter, supra, 48 Cal.2d at pp. 753-754.) 3. Appellant’s Statement That He Was Driving Jerri Baker’s Ford Probe on the Night of the Murders Thetrial court ruled that the prosecution could present as rebuttal evidence appellant’s statement that on the night of the murders, he was driving Jerri Baker’s Ford Probe. (Aug CT of 11/10/09 Appendix A,pp. 7- 8.) The trial court found that this evidence rebutted appellant’s attack on 263 Anita Dickinson’s testimonythat on the night of the killings, she noticed an unfamiliar car in the parking lot behind The Office. (21 RT 7232-7233.) In fact, appellant’s statement that he had driven Baker’s car that night did not rebut the defense challenge to Dickinson’s testimony. Dickinsontestified that in the parking lot on the nightofthe killings, she saw a small two-door compact, the size of a Hyundai or a Honda and abouthalf the size of the Camaro next to which it was parked. (12 RT 4269-4270.) Investigator Tony Ganetestified for the defense that Jerri Baker’s Ford Probe wastaller than the Camaroandonlyslightly less long and wide. (20 RT 6823-6824, 6832, 6833.) The defense also called Deputy Sheriff Elizabeth Sawyer, who had respondedto the crime scene and interviewed Dickinson on the night of the murders. Sawyertestified that Dickinson told her she had seen only the Camaro and the two vehicles that belongedto the two bartenders; she said she had not noticed any other vehicles in the parking lot behind The Office that night. (21 RT 7140- 7141.) Thetrial court ruled as follows: Prosecutor: The defense’s last witness, in fact, was one ofthe attacks on Dickinson’s ability or testimony concerning the car, scene of the car andits location. The other witness was Tony Gane who,I believe, interviewed Anita Dickinson he said three times. Court: Andshe said that the car that she saw was half the size of the Camaro. Prosecutor: Right Court: But the statement offered here is that the defendant wasthere in Jerri’s gray Ford Probe. Prosecutor: Yes 264 Court: Alright. Well, that would seem to directly rebut that. That testimony would be allowed. (21 RT 7232-7233.) Evidence that appellant said he was driving Baker’s car on the night of the killings did not bolster Dickinson’s credibility or rebut the testimony of Sawyer. Baker’s car did not match Dickinson’s description of the unfamiliar vehicle that she saw that night. Whereas Dickinson described the car as a “small compact” (11 RT 4243, 4253), a Honda or a Hyundai(12 RT 4269), and half the size of the Camaro (12 RT 4270), the Probe was an American car and wasactually taller than the Camaro, andonly slightly shorter and narrower (20 RT 6832-6833). The Probe was far bigger than the vehicle Dickinson described. Nor wasthe color of the car Dickinson saw consistent with Baker’s Probe. Dickinson described the car she saw as light in color and silverish or bluish. (12 RT 4268.) Baker’s car was described as darker in color — as brownish (12 RT 4517), greyish-brownish (12 RT 4518; 20 RT 6800), silver-gray (13 RT 4631), gray (Aug CT of 11/10/09 Appendix A, p. 8; 15 RT 5459), silver (13 RT 4643; 20 RT 6929) and dark smokey (14 RT 5010). Nordid appellant’s statement rebut Sawyer’s testimony. Sawyer testified for the defense that on the nightofthe killings, Dickinson denied seeing any vehicles in the parking lot behind The Office other than those belonging to the bartenders. (21 RT 7140-7141.) Although Sawyer’s testimony tended to undermine Dickinson’s credibility regarding when she saw the unfamiliar vehicle that she described in her testimony, appellant’s statement that he was driving Baker’s car did nothing to restore her credibility. The point made by Sawyer’s testimony remained: Dickinson 265 did not tell Sawyer that she had seen any other vehicle in the parkinglot that night. Evidence that appellant was driving Baker’s car that night did not change the impact of Sawyer’s testimony, which wasto call into question whether Dickinson had seen a different car — not Baker’s Probe — in the lot on the night in question. Appellant’s statement was not proper rebuttal because it was not inconsistent with the evidence appellant presented to attack Dickinson’s credibility. 4. Appellant’s Statement Regarding the Clothes and the Blood on the Clothes Thetrial court allowed the prosecution to present rebuttal evidence that, when asked to explain the clothing that Mary Webster said she had gotten from him, appellant responded, “I guess you’ll haveto talk to Mary about that,” and said he had no idea what she wastalking about and that he had no idea whether the blood would match the people’s in The Office. (Aug CT of 11/10/09 Appendix A, p. 11.) The court also allowed evidence that later in the interrogation, appellant said, “Well, the clothes are mine. I got the blood on ‘em from shaving. And the people were alive whenI left the bar” (Aug CT of 11/10/09 Appendix A, p. 18), and when asked why he had no markson his face from shaving, appellant said “I heal fast” (Aug CT of 11/10/09 Appendix A, p. 19; 21 RT 7242-7250). The prosecutor argued that, through the testimony of Peter Barnett, the defense had attacked the prosecution’s theory regarding howthe blood got on the clothes and had suggested that the blood could have been planted. (21 RT 7243, 7247.) The court found that the statement was not being offered for its truth: Butit’s not offered for the truth of the matter asserted, because if one had knicked oneself shaving to the extentthat they would let that much blood on the shirt -- ... Wellit’s 3certainly not a denial or a statement. [ have no idea. .. . It’s 266 an inconsistent explanation,really. (21 RT 7247.) The court went ontostate: Well, what it is is the Prosecution there contends and has _ contended that the blood on the shirt came from the victims and that the shirt was on Mr. Case when he shot them to death. [{] The Defense has seemedto indicatein its case in chief through Mr. Barnett that another possible source of the blood would be someonedipping the shirt in the blood or the boots in the blood. ... So the question, then, is does the defendant’s remark when confronted about the blood on his boots and shirt how it got there when he cut himself shaving, does that tend to rebut the plant defense? (21 RT 7248.) The court found that the statement rebutted the defense theory that the blood had been planted on the shirt and the assertion that appellant was not wearing the clothes on the night in question: Prosecutor: You know,the two subjects that are raised in this is, one the source ofthe blood. .. Barnett’s testimony. And the other is questions by counsel and photographsoffered by counsel asto,I believe, whether clothing wasleft in Mary’s place and wherethis clothing came from. Defense Counsel: Not to mention the testimony of Steve Langford. Court: And then there’s the clothes of mine I got the blood on from shaving. Butthe . clothes are mine. Defense Counsel: I don’t think there’s ever been an allegation those aren’t Mr. Case’s clothing. We’ve got photographs before ofhim wearing this clothing. And I think the only issue is whether he was wearing them on the night in question. Court: Andthis would tend to rebut that, 267 because if he was wearing them on the night in question, they could not have been smeared through the victims’ blood by someoneperpetrating a frame-up. Defense Counsel: And what — andthis is tending to rebut the assertion that he wasn’t wearing them? Prosecutor: Both, and the concept through Peter Barnett that it was planted on the blood — the blood wasplanted on theshirt. Defense Counsel: I don’t see where his acknowledgment — Incidentally, the evidence would show that at the time that he saysthis, they haven’t even shown him these clothes yet. Court: I think it’s admissible for the purposes just stated, so the Court will allow the evidence for that purpose. (21 RT 7249-7250.) Appellant had not disputed that the clothes were his. His statement that he did not know whether the blood on the clothes would match the blood of the people at The Office did not rebut any defense evidence or assertion, as it was entirely consistent with the defense evidence. Appellant’s statement that he had gotten blood on the clothes from shaving was improperrebuttal as well, as it did not in fact rebut the evidence regarding the possible origin of the blood on the clothes. The trial court foundthat this aspect of appellant’s statement was not relevant forits truth (21 RT 7247), implicitly finding the quantity of blood on the clothes wastoo substantial to have come from a shaving accident. A false exculpatory statement is evidence of consciousness of guilt. (People v. Hughes (2002) 27 Cal.4th 287, 335; People v. Kimble (1988) 44 Cal.3d 268 480, 496; People v. Osslo (1958) 50 Cal.2d 75, 93.) Appellant’s statement tended to showthat he had a guilty state of mind at the time of the interrogation, but it was not evidence of the content of the statementitself. It did not rebut the defense evidence that the blood could have been planted except insofar as it was material evidence that tended to establish appellant’s commission of the crimes charged. As such, it should have been presented in the prosecution’s case-in-chief. Althoughthetrial court regarded the statementas false insofarasit purported to address the origin of the blood on the clothes, it viewed the statement as a true admission on appellant’s part that he was wearing the clothes on the night in question. (See 21 RT 7249 [“Andthis would tend to rebut that, because if he was wearing them on the night in question, they could not have been smeared through the victim’s blood by someone perpetrating a frame-up.”].) Appellant’s statement did not indicate, expressly or implicitly, when he had gotten the blood on the clothes from shaving, nor did appellant make any other statement implying that he had been wearing the clothes on the night of the murders. However, even if the statement could properly be construed as an admission that appellant was" wearing the clothes on the night ofthe killings, it was part and parcel of appellant’s patently implausible statement that he had cut himself shaving and was material evidence of appellant’s guilt. Presenting appellant’s statement in rebuttal vastly magnified its dramatic effect. In allowing the prosecutor to present appeilant’s statement at the last possible moment, after the defense had rested and immediately before the jury retired to deliberate, the trial court abused its discretion and deprived appellant of a fair trial. 269 C. Reversal Is Required For the reasons set forth above in ArgumentI.E, ante, which are incorporated by reference here, the erroneous admission of appellant’s statement was prejudicial. Although the prosecution’s case for appellant’s guilt might at first glance appear strong, close and careful examination of the evidence actually connecting appellant to the charged crimes reveals that it was seriously flawed. Key witnesses lacked credibility, the evidence was conflicting in important respects, and the testimony contradicted or failed to support significant aspects of the prosecution’s theory of the crime. Apart from appellant’s statements, there was ample room for reasonable doubtas to his guilt. Under the standard applicable to state law error, there is a reasonable probability that the outcome would have been different had evidence ofthe statement not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.) Under the standard applicable to federal constitutional error, the error was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23.) Reversal is required. H . | // 270 vil THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO TRIAL BY AN IMPARTIAL JURY BY RESTRICTING DEFENSE COUNSEL’S VOIR DIRE ABOUT SPECIFIC MITIGATING FACTORS After defense counsel during thefirst part of voir dire asked prospective jurors if they would consider specific potential mitigating factors about appellant’s background,the trial court ruled that defense counsel could not continue this practice and restricted the inquiry into mitigation to asking whetherajuror could carefully consider appellant’s background. Thetrial court’s order was surprising, given thatit already had granted a defense challenge for cause after this same line of questioning had shownthat a prospective juror could not consider appellant’s economically disadvantaged background and abusive childhood in determining the appropriate penalty. The trial court’s ruling encompassed twodistinct orders: (1) that defense counsel could not ask if a juror could “meaningfully consider,” but could ask if the juror could “carefully consider,” appellant’s mitigating evidence (6 RT 2558-2559), and (2) that even using the “carefully consider” language, defense counsel could not inquireinto a juror’s ability to consider specific mitigating factors, such as poverty or abuse (6 RT 2559-2560). On appeal, appellant does not contest the first ruling, but he does challenge the secondruling, which violated appellant’s constitutional rights to trial by an impartial jury. (Cal. Const., art. I, §§ 15, 16; U.S. Const., 6" & 14" Amends.)” ” Although appellant does not challengethetrial court’s ruling prohibiting use of the phrase “meaningfully consider”andrestricting (continued...) 271 A. The Trial Court Precluded Defense Counsel from Conducting Voir Dire on Specific Mitigating Factors Even Though Counsel Had Been Asking Such Questions Throughout Jury Selection Before trial, defense counsel filed a motion requesting that all voir dire of prospective jurors be sequestered and doneindividually. (1 CT 233.) The parties and trial court agreed to ask all their questions during individualized voir dire, rather than conducting separate general and individualized voir dire. (1 RT 1067-1072.) They later decidedto try to streamline the processby calling five prospective jurors at a time, giving them some introductory instructions, and asking them the information that wason the missing page twoofthe jury questionnaire, and then conducting individualized death-qualification voir dire outside the presence of the other jurors. (2 RT 2390-2392.) From the beginning ofjury voir dire, defense counsel asked prospective jurors if they would considerspecific mitigating factors when deciding whether to impose the death penalty. Defense counsel either asked jurers the question directly or gave examples of specific mitigating factors thatwould be presented and askedifthe juror could consider them. (See, e.g. 4 RT 1917-1919, 1943, 1964-1965, 2040- 2043, 2071, 2108; 5 RT 2215-2216, 2239, 2281, 2327, 2408, 2430; 6 RT 2455, 2478-2480, 2499-2500, 2535-2536.) During this part of voir dire, the following exchange occurred with ” (...continued) counsel to the phrase “carefully consider,” the statement of facts in Section A includes the arguments and ruling on that issue because they are intertwined with the arguments and ruling on the secondissuethat is raised as error on appeal and excising them would create a distorted picture of whattranspired in responseto the prosecutor’s objection. 272 prospective juror Warren: Defense counsel: Warren: Defense counsel: Warren: Defense counsel: Warren: Defense counsel: The defense on the other hand can produce factors in mitigation such as how the person grew up, whether he had a, you know,lack of a good family background, whether there was economic disadvantages, whether there was abuse in the family, whether alcohol played a part in this person’s life. [J] Do you think factors like that I’ve just listed in mitigation would be something that you would at least consider as afactors [sic] in mitigation? Prior convictions, yes, would play a factor. As far as upbringing and such as that, no I don’t figure it would. Okay. So the factor in mitigation such as this person hasa real, you know, economically disadvantaged childhood, that is something that you wouldn’t feel like you would give any weight to or consider it? No I wouldn’t. Whatif a person had a background wherethey were subject to abuse at an earlier age. Would that be a factor that you could consider, or would it not be something that’s important to you? Drawing on my experience, it wouldn’t have any,as far as it wouldn’t have any relation to what weare discussing. And what aboutif the person had abused alcohol during their life time. Would that be a factor that you could consider as possibly some explanation or mitigating factor? 273 Warren: No. Defense counsel: Doyoufeel that if a person did have a substantial prior criminal record, that -- Warren: That would enterintoit, yes. (5 RT 2429-2430). The prosecutor tried to rehabilitate prospective juror Warren, whosaid that, in determining the appropriate penalty, he would have to consider evidence presented in mitigation and “would be willing to listen to both sides.” (5 RT 2433.) However, after further questioning by defense counselandthetrial court (5 RT 2434-2437), Warren ultimately stated, “I honestly don’t know,” when asked whether he could meaningfully consider factors such as a poor upbringing (5 RT 2437). Defense counsel challenged Warren for cause, and the trial court granted the challenge. (5 RT 2438.) Defense counsel questioned four prospective jurors who ultimately sat as jurors about potential mitigating factors in this same manner: Juror No. 1 (4 RT 2108), Juror No. 2 (4 RT 1918-1919), Juror No. 7 (5 RT 2281) and Juror No. 10 (4 RT 2071-2072). It was not until the middle ofjury selection that defense counsel was prohibited from asking questions about specific mitigating factors. Defense counsel Bogh began to ask prospective juror Payne aboutthe factors in aggravation, when the prosecutor objected that defense counsel was asking the juror to prejudge specific types of evidence. (6 RT 2542.) Thetrial court sustained the objection. (6 RT 2542.) Defense counseltried again. After telling the juror that the district attorney would introduce factors in aggravation andthat the defense would introduce factors in mitigation, the juror agreed she would be willing to listen to the factors on both sides. (6 RT 2542.) Defense counsel then asked: 274 Would you be able to consider such factors in mitigation such as: A person’s background, the defendant’s background. Do you think you could meaningfully consider — (6 RT 2543.) The prosecutor again objected: “Your Honor, other than the factors themselves, in the instructions, I would object and ask that Mrs. Payne not prejudge evidence that’s inappropriate.” (6 RT 2543.) Defense counsel explained he wasnot asking the juror “to assign or make any decision. I’m just simply asking her if she could meaningfully consider certain factors in mitigation.” (6 RT 2543.) Thetrial court agreed with the prosecutor that defense counsel was impermissibly asking the juror to prejudge the evidence of specific mitigating factors: [W]e give her specific facts in mitigation and ask herif she could meaningfully consider those. And that’s in effect asking her to prejudge evidence, andalsoit’s incomplete as to what evidence about those factors is going to be. Andit’s impermissible to try the case here at this point. (6 RT 2543; see 6 RT 2549.) In the court’s view, the best approach was to follow the instructions and the general, rather than specific, type of evidence that can be considered and “ask the juror if her mind wouldn’t be completely closed to that type of evidence,orif that type of evidence would be something that she could consider.” (6 RT 2544.) Atthat point, the trial court asked the juror to step out to the hallway, and the parties and the court discussed the objection outside the juror’s presence. (6 RT 2544.) Acknowledging that he had not objected to the same questions previously, the prosecutor focused on defense counsel’s use of the phrase “meaningfully consider.” He asserted that asking jurors whether they could meaningfully consider certain factors in evidence was asking them to prejudge the evidence. (6 RT 2545; see 6 RT 2549-2550, 275 2555.) The prosecutor assumedthat the jurors “[o]bviously . . . will be open minded enoughto consider the types of evidence that are otherwise described in the instructions.” (6 RT 2545.) Defense counsel Gable disagreed. He pointed out that “[t]he proof in the puddingis the tasting” — the careful probing ofthe jury “revealed biases that would never ever have been discovered had it not been for asking them if they could meaningfully consider.” (6 RT 2545; see 6 RT 2561.) He explained the need to ask not only whetherjurors “can listen to the evidence, everybody can do that, but whether they can meaningfully considerit.” (6 RT 2545.) Emphasizing the needforthis particularized inquiry, defense counsel told thetrial court: When you ask someoneifthey could listen to the evidence; well, they have to listen to the evidence. The only way they are not goingto listen to the evidenceis if they physically stick their fingers in their ears. Will they take in and give weightto it and considerit, that’s what the law requires. (6 RT 2545.) Gable repeatedly emphasized that defense counsel was not asking how much weight a juror would give the defendant’s background, but whetherthe juror cou/d considerit in a meaningful manner. (6 RT 2546.) Thetrial court rejected defense counsel’s position,stating: I have to disagree that it revealed hidden biases. The manner in which those questions have been phrased,I think, creates situations in which the answer is almost predetermined. You ask jurors to weigh a multiple murder committed during the commission of a robbery against the mitigating factor that the defendant was impoverished as a child. (6 RT 2546; see 6 RT 2549.) In the court’s view, asking the juror to compare these two factors was asking the juror to assess the penalty without the further evidence necessary to makethat decision. (6 RT 2546-2547.) 276 Defense counsel Gable countered that he was not asking how the juror would vote, but whether the juror could considerthe mitigating evidence that the defense would present. (6 RT 2547.) Defense counsel argued that it would not be helpful to ask a juror in the abstract: “we [are] going to be presenting mitigating evidence, can you consider that?” (6 RT 2547.) As defense counsel pointed out: Of course they will say that they can considerit, but they don’t know whatthey are. [{] The fact of the matter is when you break it down, these are the categories of evidence that are typically presented in these kinds ofcases, is this something that you can listen to, take into consideration and give some meaningto it. (6 RT 2547.) The trial court returned to the phrasing of the question,stating, “I think you can ask that question, but not in the manner whichthislast question has been posed and has been posed from time to time here.” (6 RT 2547-2548.) The prosecutor concurred. Although he objected to asking “would you meaningfully consider this,” he had no objection to defense. counsel asking, “Could you listen to and consider these forms of evidence.” (6 RT 2548.) As he acknowledged,“[t]he question is, simply, can they in the penalty phase . . . consider, listen to, and will they consider, not be closed to these different forms of evidence.” (6 RT 2548.) Defense counsel Gable indicated he was opento using a term other than | “meaningfully consider” (6 RT 2548), but reiterated the need to identify and excuse jurors who would not consider the mitigating evidence (6 RT 2549). Thetrial court ruled that it would permit “questions along the lines of the Instruction CALJIC 8.88,” that mitigating circumstancesis. . . [a]ny fact, condition or event which as such does not constitute a justification or excuse for 277 the crime, but may be considered an extenuating circumstance in determining the appropriateness of the death penalty. (6 RT 2551.) In response to defense counsel’s concern that talking about “extenuating circumstances” would be meaningless to jurors, the court later clarified that ifjurors asked about the term, counsel could explain that “extenuating circumstances” meant “[s]ome aspect of his character of some aspects oflife which maybe [sic] grounds for something less than the death sentence.” (6 RT 2555.) However,in thetrial court’s view, words describing specific mitigating circumstances, such as poverty or abuse, “don’t tell the jurors much of anything,” and without hearing the evidence, jurors “can’t effectively and accurately give an opinion as to how they would evaluate those things.” (6 RT 2555.) Thetrial court ruled that defense counsel could ask jurors “if the background ofthe defendant would be something they would consider” (6 RT 2553) and could ask “if their mindsare absolutely closed to mitigating evidence” (6 RT 2554). Defense counsel Gable later expressed concern that in answering the prosecutor’s questions about whether they would listen to the penalty phase evidence, jurors would simply “parrot a response that they think is socially acceptable.” (6 RT 2557.) In that situation, the trial court would permit efense counsel to question further. (6 RT 2557.) Thetrial court resolved whatit viewed as “a close question of semantics.” (6 RT 2556.) It found that the phrase “meaningful consideration . . . implies other evidence [jurors] receive is not worth the same serious type of consideration.” (6 RT 2556.) In sustaining the prosecutor’s objection, the court ruled that defense counsel could ask about “careful consideration rather than meaningful consideration.” (6 RT 2558.) The prosecutor had no objection to the court’s word choice. (6 RT 2559.) 278 Thetrial court also ruled that defense counsel could not inquire about specific mitigating factors, such as poverty, even with the approved “careful consideration” language. (6 RT 2559.) It found that such questions had “a tendency to be misleading” and also asked the juror “to prejudge the fact: Does poverty outweigh or could it possibly outweigh multiple murder and murder committed during the course of robbery.” (6 RT 2559.) At the sametime,the trial court acknowledged that the jurors must be able to consider the evidence that would be presented at the penalty phase: “if their mind is closedbecause ofthe enormity of the offense, then they shouldn’t be on the jury.” (6 RT 2560.) In conclusion,the trial court ruled that the voir dire should not go into the “specifics on poverty or abuse,” but could go into victim impact evidence, which it acknowledged could be “very, very powerful.” (6 RT 2560.) After the trial court’s ruling, defense counsel asked jurors whether they would consider evidence of the defendant’s background,character or extenuating circumstances. (See, e.g. (7 RT 2797 [voir dire of Juror No. 6]; 6 RT 2578 [voir dire of Juror No. 11]; 6 RT 2668 [voir dire of Juror No. 9]; 7 RT 2833 [voir dire of Juror No. 13]; 9 RT 3553 [voir dire of Juror No. 14.) Underthetrial court’s ruling, defense counsel wasnot able to ask these five jurors who ultimately sat on appellant’s jury whether they could consider evidenceofpoverty or abuseas a factor in mitigation. B. The Trial Court kmproperly Restricted Defense Counsel’s Voir Dire on Mitigation, Resulting in Inadequate Voir Dire and a Potentially Biased Jury The Sixth and Fourteenth Amendmentsto the United States Constitution require the impartiality of the jury in a criminal case. (Turner v. Louisiana (1965) 379 U.S. 466, 472.) The California Constitution also 279 guarantees this right. (Cal. Const., art. I, §§ 15, 16; People v. Martinez (2009) 47 Cal.4th 399, 425 [under the due process clause of both the federal and state Constitutions, a capital defendantis entitled to an impartial jury at the guilt and penalty phasesoftrial].) “Part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors.” (Morganv. Illinois (1992) 504 U.S. 719, 729.) Thus, voir dire must be sufficient to provide a defendant with a jury whose ~ membersall are “table impartially to follow the court’s instructions and evaluate the evidence.” (Rosales-Lopez v. United States (1981) 451 U.S. 182, 188.) To be qualified to serve in a capital case, a juror must be able to follow the law and consider the evidence relevant to the decision to impase or reject a death penalty. (Wainwright v. Witt (1985) 469 U.S. 412, 424 [a prospective juror is unqualified if the juror’s views on capital punishment would prevent or substantially impair the performance of the juror’s duties in accordance with the court’s instructions and the juror’s oath]; People v. Cash (2002) 28 Cal.4th 703, 719-720 [applying Witt standard in reversing death sentence].) This law includes well-settled rules about a defendant’s mitigating evidence. Under the Eighth Amendment, the defendant in a capital case has a right to present mitigating evidence about his background in support ofhis case for a life sentence. (Lockett v. Ohio (1978) 438 U.S. 586, 604-605 [recognizing defendant’s right to present, as a mitigating factor, any aspect of his character or record and any of the circumstances of the offense as a basis for a sentence less than death].) As corollary, the sentencer must be willing to consider giving effect to the defendant’s mitigating evidence. (Eddings v. Oklahoma (1982) 455 U.S. 104, 114 [the sentencer may not refuse to consider, as a matter of law, any relevant mitigating evidence]; id. 280 at p. 115, fn. 10 [noting that “Lockett requires the sentencer to listen” to the defendant’s mitigating evidence which included evidence ofhis violent family history].) More recently, the high court has reiterated that “a sentencer may not categorically refuse to consider any relevant mitigating evidence.” (Kansas v. Marsh (2006) 548 U.S. 163, 174.) There is no question that underboth the federal Constitution and the California death penalty statute, evidence of a defendant’s poverty and abuseas a child is relevant mitigating evidence that the sentencer must consider in deciding the appropriate punishment. (/n re Lucas (2004) 33 Cal.4th 682, 716, 735, citing Wiggins v. Smith (2003) 539 U.S. 510, 535 and Eddings v. Oklahoma, supra, 455 U.S. at pp. 107, 108-113 [“turbulent family background and childhood abuseis of particular relevance to a jury’s consideration of whether to impose the death penalty”]; see CALJIC No.8.85 [defining section 190.3, factor (k) as encompassing “any sympathetic or other aspect of the defendant’s character of record[that the defendant offers] as a basis for a sentence less than death”’].) A juror who will not consider abuse or poverty as potential mitigation is disqualified from service in a capital case, because he or she cannot“consider the evidence of aggravating and mitigating circumstancesas the instructions require.” (Morgan v. Illinois, supra, 504 U.S. at-p. 729.) A trial court’s limitation on voir dire is subject to review for abuse of discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 990.) In this case, the trial court’s abrupt ban on defense questions about specific mitigating factors was an abuseofdiscretion resulting in voir dire inadequate to guarantee that an impartial jury would decide appellant’s sentence. To be sure,the trial court did not absolutely refuse inquiry into the subject of mitigation, nor did it deny defense counselall opportunity to 281 ascertain juror views about mitigating evidence. (See People v. Carasi (2008) 44 Cal.4th 1263, 1286.) Butits orderrestricting inquiry into questions about appellant’s “background”or “extenuating circumstances” and prohibiting mention of specific mitigating factors severely limited defense counsel’s ability to ferret out prospective jurors whoseability to follow the law on mitigation was substantially impaired. In People v. Cash, supra, 28 Cal.4th at pp. 720-721, this Court reaffirmed “the principle that either party is entitled to ask prospective jurors questions that are specific enough to determine if those jurors harborbias, as to some fact or circumstance shown bythetrial evidence, that would cause them not to follow an instruction directing them to determinea penalty after considering aggravating and mitigating evidence.” That was the opportunity appellant requested and thetrial court denied here. While the prosecutor assumed, despite prior voir dire to the contrary, that the jurors “will be opened minded enoughto consider the types of evidence” presented at the penalty phase (6 RT 2545), defense counsel wanted to make sure they would. Appellant was entitled to find out if the jurors who wouldjudge him would consider his mitigation case. Asthe high court has explained, a juror could swear in good conscience to uphold the law, but be unaware that underlying beliefs about the death penalty would prevent him from doing so. (Morganv. Illinois, supra, 504 U.S. at p. 735.) An analogous problem existed here. A juror could swear to consider evidence about appellant’s backgroundat the penalty phase, but be unaware of the scope of mitigating evidence and harbor views about certain factors like poverty or abuse that would impair the juror’s ability to consider such evidence in mitigation. Defense counsel madethis precise point. As he explained, the general voir dire terms 282 approvedbythetrial court would not mean muchto the jurors (6 RT 2555) and would not convey the types of evidence, which include poverty or abuse, that the law required them to consider (6 RT 2547). Defense counsel pinpointed the inadequacyofthe limited inquiry: jurors would say they would consider the mitigating circumstances, but would not know what they were. (6 RT 2547.) Without giving the jurors some sense of the kinds or categories of mitigating evidence, such as poverty, abuse, or alcoholism, there waslittle or no way to determine whether a juror would be able to consider appellant’s penalty-phase defense. The prosecutor recognized that the question was whether the jurors in the penalty phase would “consider, not be closed to these different forms of evidence.” (6 RT 2548.) Andthetrial court was fully aware that jurors who could not consider appellant’s mitigating evidence would be excluded. (6 RT 2560.) But the limited questions about appellant’s “background” and “extenuating circumstances”that the court permitted were sorely insufficient to elicit juror bias with regardto their ability or willingness to consider appellant’s mitigating evidence. To ensure that his fate would be decided by an impartial jury, appellant needed “particularized death- qualifying voir dire” which informed the jurors of basic facts about the mitigating evidence he planned to present. (People v. Cash, supra, 28 Cal.4" at p. 721.) Without this voir dire, appellant was unable “to lay bare the foundation of[a] challenge for cause” against those prospective jurors who would not consider his mitigating evidence, and consequently his right to be sentenced by an impartial jury was rendered “nugatory and meaningless. ...” (Morgan v.Illinois, supra, 504 US.at pp. 733-734.) Thetrial court’s suggestion that defense counsel “can ask them [the jurors] if their minds are absolutely closed to mitigating evidence” (6 RT 283 2554) offered an equally inadequate alternative. During jury selection, the jurors were informed that the prosecutor would present aggravating evidence and appellant would present mitigating evidence at the penalty phase. (See, e.g., 6 RT 2517-2518, 2600-2602; 7 RT 2816-2817; 8 RT 3110-3112; 9 RT 3511-3516.) The trial court did not define “mitigating evidence”to include evidence ofpoverty or abuse, but only described it in amorphoustermsas “evidence designed to persuadethe jury that the appropriate sentencein this case is life in prison without the possibility of parole” (6 RT 2753; see also 8 RT 3111; 9 RT 3513), or “as extenuating circumstances which do not constitute a justification for the crime or an excuse for the crime but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty” (6 RT 2600-2601). Thetrial court’s most specific explanation stated that “these extenuating circumstances ... might include evidence . . . about the defendant; who he is, where he has been, what has happenedto him, and whathe has or has not donein his life.” (9 RT 3513.) After hearing such general descriptions of mitigating evidence, asking whetherjurors were “absolutely closed”to considering appellant’s evidence would notlikely yield admissionsofbias. Asthis Court observed long ago, when a juror’s response to general questions whetherhe or she will follow the law provided by the court “is merely a predictable promise that cannot be expected to reveal some substantial overtly held bias against particular doctrines[,| . . . a reasonable question about the potential juror’s willingness to apply a particular doctrine of law should be permitted when from the nature of the case the judgeis satisfied that the doctrine is likely to be relevantattrial.” (People v. Williams (1981) 29 Cal.3d 392, 410, superseded by statute, Proposition 115.) General questions about whethera juror will consider mitigating 284 factors or the defendant’s background have only one right answer — “yes.” A juror “who wishes to seem fair-minded. . . is unlikely to give a negative response.” (People v. Balderas (1985) 41 Cal.3d 144, 183 [using this line of reasoning where jurors were asked about specific doctrines of law].) Again, defense counsel Gable made this same point. He worried that the limited inquiry permitted by the trial court would lead prospective jurors “to parrot a responsethat they think is socially acceptable.” (6 RT 2557.) Thetrial court’s question asking whether the jurors minds were absolutely closed to mitigating evidence,just like its question asking whether jurors could consider evidence of appellant’s background, was not likely to elicit a response from a juror that would disclose any difficulty the juror might have in considering the categories of evidence appellant planned to introduce. Because the jury was constitutionally required to consider appellant’s mitigating evidence in fixing his punishment, questions about a prospective juror’s ability or inability to consider poverty and abuse as potential mitigation wentto the juror’s willingness to apply the law, and thus were directly relevant to and in aid of an exercise of a challenge for cause. (See People v. Cash, supra, 28 Cal.4th at p. 720 [“A challenge for cause may be based on thejuror’s response when informedoffacts or circumstanceslikely to be present in the case being tried”’].) Thetrial court based its decision to preclude the voir dire questions that defense counsel had been asking throughoutjury selection on two erroneousfindings. First, the court concluded that the questions did not reveal hidden juror bias. (6 RT 2546.) This conclusion is somewhat puzzling and plainly mistaken giventhe trial court’s exclusion of prospective juror Warren for cause after precisely the type of voir dire that it then prohibited. The questioning of prospective juror Warrenillustrates 285 both the effectiveness of defense counsel’s questions in discovering bias and the connection between a juror’s willingness to consider mitigating factors and his being an impartial juror. (See 5 RT 2425-2438.) In response to questions about specific factors relating to appellant’s background, Warren madeclear he would not consider “tan economically disadvantaged childhood”or being subject to “abuse at an early age’”’ as potential mitigation. (5 RT 2429-2430.) Defense counsel’s questions about these mitigating factors revealed that Warren was unable to follow the law and thus was biased. Thetrial court correctly granted defense counsel’s challenge for cause. (5 RT 2438.) In short, the record before the trial court proved the efficacy of the very voir dire it suddenly disallowed. Appellant wasentitled to have twelve unbiased jurors deliberate his fate, but the trial court’s truncation of voir dire precluded him from determining whether any otherjuror, like prospective juror Warren, was categorically closed to certain types of mitigating evidence in his case. Second,the trial court ruled that inquiry about specific mitigating factors would be asking the jurors to prejudge the facts. (6 RT 2559.) This conclusion also was mistaken. Muchofthe focus in the argument on the prosecutor’s objection was on the part of the defense question asking whetherjurors could “meaningfully consider” mitigating factors. (See 6 RT 2543, 2545-2546, 2548, 2556, 2557.) The trial court found that this particular language required the jurors to prejudge the penalty-phase evidence (6 RT 2543, 2546-2547) apparently because, as the prosecutor suggested, the word “meaningfully” connoted weighing those factors (6 RT 2555). Thetrial court observed that the questions, as phrased, asked “jurors to weigh a multiple murder committed during the commission of a robbery against the mitigating factor that the defendant was impoverished as a 286 child.” (6 RT 2546.) Whateverits merit, this concern was resolved when defense counsel accepted, although disagreeing with, the trial court’s order that the questions could be phrased in terms of “carefully” but not “meaningfully” considering the evidence. (6 RT 2558-2559.) Nevertheless, the trial court still viewed asking aboutspecific mitigator factors as requiring the jurors to prejudge the facts. (6 RT 2559.) The court was mistaken, as defense counsel pointed out. (6 RT 2545-2546.) Inquiring whetherajuror could carefully consider specific mitigating factors, such as poverty or abuse, did not ask the juror to indicate how he or she would weigh those factors either independently or in relation to the aggravating evidence. Defense counsel here did not seek to give a detailed account of the evidence to determine whether prospective jurors would impose a death sentence underthosefacts. (See.People v. Jenkins, supra, 22 Cal.4th at pp. 990-991 [no error in refusing to allow such voir dire].) Nor did their questions about the specific mitigating factors “attempt to bind the prospective juror regarding his or her position on the evidence.” (Soria v. Johnson (5" Cir. 2000) 207 F.3d 232, 243-244 [no error in prohibiting question “‘No matter what-the other evidence would show, could you consider [evidence such as youth or voluntary intoxication] as a mitigating factor in setting punishment,’” wherethetrial court allowed defendant to phrase the question as “*Can you consider [for example] the age of the Defendant in deciding on punishment?’”’].) Instead, the questions here simply inquired whetherajuror could consider evidence ofpoverty or abuse, as the Eighth Amendmentrequired. Thefallacy in the trial court’s prohibition of voir dire about specific mitigating factors is seen in its very different stance on voir dire about victim impact evidence, which is admissible as an aggravating factor under 287 section 190.3, factor (a). (People v. Edwards (1991) 54 Cal.3d 787, 833- 836.) In stark contrast to its ban on questions about evidence of abuse and poverty, the trial court expressly permitted voir dire about whetherajuror could consider victim impact evidence. (6 RT 2560.) The court dismissed the likely impact ofpoverty as a mitigating factor, asserting that “multiple murder weighed against the word poverty is probably not goingto affect most of these people to the extent that they will say that poverty excuses multiple murder.” (6 RT 2554.) The court, however, held a different opinion about the likely weight of victim impact evidence: I don’t think you should go into specifics on poverty and abuse evidence. Evidently, you can go into victim impact evidence, that can be very, very powerful, and you have asked before how they might considerthat, and that’s appropriate. (6 RT 2560.) Thereis no principled basis for the court’s distinction between poverty and abuse evidence, on the one hand, and victim impact evidence, on the other. The formeris a subcategory of factor (k) mitigation (see People v. Easley (1983) 34 Cal.3d 858, 877-878), and the latter is a subcategory of factor (a) aggravation (see People v. Edwards, supra, 54 Cal.3d at pp. 833-836). A juror’s inability or unwillingness to consider either a lawful mitigating factor or lawful aggravating factor would disqualify him from jury service, as exemplified by the exclusion of prospective juror Warren. In discussing the prosecutor’s objection, the trial court opined that most jurors would say that “if you have multiple murder during the commission of a robbery and it was committed by somebody who waspoor, then I think that’s probably going to be a death penalty for him.” (6 RT 2547.) The trial court’s divergent opinions about the relative impact of mitigating factors and aggravating factors indicates that in deciding the 288 scope of voir dire, the court improperly prejudged the likely weight of the penalty-phase evidence. This, of course, is the same fault the trial court mistakenly found in defense counsel’s questions about specific mitigating factors. The issue hereis not that the court conceptualized the mitigating factor ofpoverty as having force only if it “excuses” the crime, whichis clearly wrong under both section 190.3 (see CALJIC Nos. 8.85, 8.88; People v. Easley, supra, 34 Cal.3d at pp. 878-879 & fn. 10) and the Eighth Amendment(see Tennard v. Dretke (2004) 542 U.S. 274, 284-285). Noris the question whether, as a general matter, the court correctly or incorrectly anticipated the comparative weight of these aggravating and mitigating factors in this case. The point is that in deciding whether to permit voir dire regarding certain types of penalty-phase evidence, the trial court permitted voir dire only on the factors thatit believed would be “powerful.” The court’s approach waserroneousbecauseajurorat appellant’s penalty phase wasentitled and instructed to give whatever weight he or she deemed appropriate to any aggravating or mitigating factor. (3 CT 628; 7 RT 2896- 2897 [CALJIC No.8.88].) Ifa juror could not consider a category of mitigating evidence appellant presented, the juror would not be impartial | and would be subject to exclusion for cause. Appellant’s claim finds support in decisions of this Court upholding prosecution voir dire about a juror’s views on potential mitigating factors. In People v. Noguera (1992) 4 Cal.4th 599, this Court concluded “‘that the specific questions posed by the prosecutor on voir dire simply inquired whether a juror would consider the death penalty” notwithstanding particular mitigating factors, “and were thus not improper.” (/d.at pp. 645- 646.) In Noguera, thetrial court permitted the prosecutor to ask each prospective juror whetherthe fact that a capital defendant was “18 or 19 at 289 the time of the killing .. . [would] automatically cause you to vote for the lesser punishmentof life imprisonment without possibility ofparole?” Cd. at p. 645.) In addition, the prosecutor was permitted to ask each jurorin the sequestered voir dire whether “you would be able to consider imposing the death penalty .. . if we have one victim as opposed to requiring that the defendant kill two or more people?” (/bid.) The defendant in Noguera challenged the prosecution’s questions on precisely the same grounds asserted by the prosecutor and sustained bythetrial court in appellant’s case: he contended that the questions asked the jurors to prejudge the evidence. Rejecting the defendant’s claim, this Court held that because the disputed voir dire questions were directly relevant to and in aid of the exercise of a challenge for cause, they were proper, both under the standards governing voirdire in effect at the time of trial and the narrower standard later enacted by Proposition 115. (/d. at p. 646.) Moreover, as this Court noted in People v. Cash, supra, 28 Cal.4th at pp. 720-721, prosecutors also have been permitted to ask jurors if they can impose death in cases involving specific, potentially mitigating factors, such as a defendant who did notpersonally kill the victim (People v. Ervin (2000) 22 Cal.4th 48, 70-71), who was young or wholacked a prior murder conviction (People v. Livaditis (1992) 2 Cal.4th 759, 772-773) and who was convicted of felony murder (People v. Pinholster (1992) 1 Cal.4th 865, 916-917). What was true for the prosecutors in those cases and in Noguera is equally true for appellant in this case: voir dire inquiring about specific mitigating factors was necessary to determine whetherjurors harbored views about the mitigating factors that substantially impair their ability “to follow an instruction directing them to determine a penalty after considering aggravating and mitigating evidence.” (People v. Cash, supra, 28 CalAth at 290 p. 721.) To be sure, the prosecutor’s questions in the cases noted above asked whetherthe existence of a specific mitigating factor foreclosed the possibility of the juror returning a death sentence, while defense counsel’s questions here more narrowly sought to determine whetherthe juror could consider constitutionally and statutorily relevant factors that would be part of appellant’s mitigation case. But this difference is not decisive. In both situations, counsel’s questions soughtto elicit whether the juror could follow the law governing the penalty selection. An inability to consider mitigating factors of poverty and abuse,justlike an inability to consider a death sentence for a felony murder, a murderby a teenage defendant, or a murder by a defendant without a prior conviction — all involving potentially mitigating circumstances — would disqualify a juror from serving in a capital case. Although reviewing courts are generally afforded broad discretion in structuring and conducting voir dire (People v. Zambrano (2007) 41 Cal.4th 1082, 1120, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, fn.22), that discretion is not boundless. As the high court has explained,it is constrained by the Sixth Amendmentrightto trial by an impartial jury and the Fourteenth Amendment guarantee of due process: “Voir dire plays a critical function in assuring the criminal defendant that his [constitutional] right to an impartial jury will be honored. Without an adequate voir dire thetrial Judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannotbe fulfilled.” Rosales-Lopezv. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981) (plurality opinion). Hence, “[t]he exercise of [the trial court’s] discretion, and the restriction upon inquiries at the request of counsel, [are] subject to the essential demandsoffairness.” Aldridge v. United States, 283 291 ontsaIBOE U.S. 308, 310, 51 S.Ct. 470, 471-472, 75 L.Ed. 1054 (1931). (Morgan v. Illinois, supra, 504 U.S. at pp. 729-730.) The trial court here did not fulfill its responsibility to ensure appellant an impartial jury. It ignored that injunction that capital cases “demand inquiry into whetherthe views ofprospective jurors on the death penalty would disqualify them from sitting.” (Morganv. Illinois, supra, 504 U.S. at p. 731.) By preventing voir dire about common categories of mitigating evidence that appellant would present and the jury would be required to considerat the penalty phase,the trial court prohibited inquiry that might have demonstrated bias on the part of the jurors and provided grounds for challenges for cause. Certainly, the trial court’s abuse of discretion is made evident by its decision to exclude juror Warren for cause based on exactly the type of questioning that it later halted. Under the circumstanceshere, the trial court’s order prohibiting defense counsel from conducting voir dire on specific mitigating factors, such as poverty and abuse, violated appellant’s Sixth and Fourteenth Amendmentright to an impartialjury. (See Morgan v. Illinois, supra, 504 US. at pp. 728, 729, 739.) C. The Trial Court’s Error in Restricting.Voir-Dire On Specific Mitigating Factors Requires Reversal Appeliant’s death sentence must be reversed because the trial eekcourt’s restriction of voir dire makesit doubtful appellant “‘was sentenced to death by a jury impaneled in compliance with the Fourteenth Amendment.’” (People v. Cash, supra, 28 Cal.4th atp. 723, quoting Morganv. Illinois, supra, 504 U.S. at p. 739.) A federal constitutional error either is reversible per se or subject to the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24. The decision in Morgan reversed the defendant’s death sentence without a discussion of prejudice, 292 which indicates that an error in unconstitutionally restricting death- qualification voir dire is automatically reversible. (Morganv. I/linois, supra, at p. 739.) This result makes sense since the error prevents the parties and trial court from guaranteeing an impartialjury, whichis “Talmongthose basic fairtrial rights that can never be treated as harmless.’” (Rivera v. Illinois (2009) U.S. __, 129 S.Ct. 1449, 1455- 1456, quoting Gomez v. United States (1989) 490 U.S. 858, 876.) And the result is consistent with the per se standard of reversal applied to erroneous exclusions for views about capital punishment which,like an inability or unwillingness to consider a defendant’s mitigating evidence, also underminesthe impartiality of the jury. (Gray v. Mississippi (1987) 481 U.S. 648, 668 [refusing to abandonperse reversal rule ofDavis v. Georgia (1976) 429 U.S. 122 and apply harmless error review to such exclusions]; People v. Cooper (1991) 53 Cal.3d 771, 809.) Under these precedents, the | trial court’s error requires an automatic reversal of appellant’s death » sentence. Even assuming arguendothat the error does not require automatic reversal, appellant’s death sentencestill must be reversed. The State cannot prove the error harmless beyond a reasonable doubt under Chapman. There simply is no way to know whetherany ofthe seated jurors who were selected pursuantto the trial court’s orderrestricting voir dire about mitigating factors were, like prospective juror Warren, unable or unwilling to consider evidence ofpoverty and abuse andthus denied appellanta trial by twelve impartial peers. Furthermore, reversal of appellant’s death sentence is required under this Court’s standard. In Cash, this Court recognized that an “[elrror in restricting death-qualification voir dire does not invariably require reversal 293 of a judgment of death.” (People v. Cash, supra, 28 Cal.4th at p. 722.) Under People v. Cunningham (2001) 25 Cal.4th 926, which is discussed in Cash,errorin restricting death-qualification voir dire may be harmless error if the defense was permitted “to use the general voir dire to explore further the prospective jurors’ responses to the facts and circumstancesofthe case” or if the record otherwise establishes that none of the jurors had a view about the circumstances ofthe case that would disqualify that juror. (/d. at p. 974.) But as in Cash, the record here does not permit those conclusions. In this case, general voir dire at first was folded into the individualized, sequestered voir dire (see 1 RT 1067-1072) and later consisted of a few questions primarily to obtain information missing from the jury questionnaires (see 2 RT 2390-2392). Thus, as in Cash, defense counsel wasnot able to use the general voir dire to compensate for thetrial court’s erroneouslimitation on voir dire on mitigating factors. Moreover, as discussed abovein Section B, permitting defense counsel to ask prospective jurors whether they would consider “defendant’s background”or “extenuating circumstances” in deciding the appropriate penalty was an insufficient substitute for exploring their ability to consider specific mitigating factors. Further, there was no indication from discussions with prospective jurors after the trial court’s ruling that the jurors would be able to follow the law and considerspecific mitigating factors such as poverty and abuse. In short, the circumstances outlined in Cunningham that might render an erroneousrestriction on death-qualification voir dire harmless do not apply to this case. Rather, as in Cash, the trial court’s error here makes an assessment ofprejudice impossible. (People v. Cash, supra, 28 Cal.4th at p. 723.) As in Cash, appellant “cannot identify a particular biased juror, but that is 294 because he was denied an adequate voir dire” on what may have been the disqualifying bias. (/bid.) Moreover, the record here offers a stronger basis for doubt than in Cash thatall jurors who deliberated were impartial. The trial court limited defense counsel’s voir dire on mitigation in questioning Juror Nos. 6 (7 RT 2796-2797), 9 (6 RT 2668) and 11 (6 RT 2578), alternate Juror No. 13, who later became Juror No. 3 (7 RT 2833-2834), and alternate Juror No. 15, who later became Juror No. 4 (Aug RT 3145D- 3145E).® Although appellant cannot identify any of these jurors as biased, the trial court’s exclusion ofprospective juror Warren for causeafter defense questioning about specific mitigating factors disclosed that he was biased should negate any suggestion that the denial of adequate voir dire did not compromise appellant’s right to have twelve impartial jurors decide whetherhe should live or die. If there was one prospective juror who, when specifically asked, candidly admitted he would not consider appellant’s evidence ofpoverty and abuse in assessing the appropriate penalty, there may have been more. Because the trial court’s error makesit impossible to determine from the record whether any of the seated jurors held similar disqualifying views, the error cannot be dismissed as harmless. (See People v. Cash, supra, 28 Cal.4th at p. 723 [reversing death sentence because “the trial court’s error makes it impossible for us to determine from the record whether any ofthe individuals who were ultimately seated as jurors” should have been removed for cause under Morgan].) Accordingly, this Court shouid reverse appellant’s judgment of death. 8° The redacted voir dire of alternate juror no. 15, who was ultimately seated as juror no. 4, was augmented into the record on appeal in October, 2010 (see Aug RT 3145A-3145E), after the court reporter determined that it had previously been inadvertently omitted. 295 VUr CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION Many features of California’s capital sentencing schemeviolate the United States Constitution. This Court, however, has consistently rejected cogently phrased arguments pointing out these deficiencies. In People v. Schmeck (2005) 37 Cal.4th 240, this Court held that what it considered to be “routine” challenges to California’s punishment scheme will be deemed “fairly presented” for purposes of federal review “even when the defendant does no morethan (i) identify the claim in the context of the facts,(ii) note that we previously have rejected the sameor a similar claim in a prior decision, and (iii) ask us to reconsider that decision.” (/d. at pp. 303-304, citing Vasquez v. Hillery (1986) 474 U.S. 254, 257.) In light of this Court’s directive in Schmeck, appellant briefly presents the following challenges in order to urge reconsideration and to preserve these claims for federal review. Should the Court decide to reconsider any of these claims, appellant requests the right to present supplementalbriefing. A. - Penal Code Section 190.2 Is Impermissibly Broad To meet constitutional muster, a death penalty law must provide a meaningfulbasis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not. (People v. Edelbacher (1989) 47 Cal.3d 983, 1023, citing Furman v. Georgia (1972) 408 U.S. 238, 313 [conc. opn. of White, J.].) Meeting this criterion requires a state to genuinely narrow,by rational and objective criteria, the class of murderers 296 eligible for the death penalty. (Zant v. Stephens (1983) 462 U.S. 862, 878.) California’s capital sentencing scheme does not meaningfully narrow the pool of murdererseligible for the death penalty. At the time of the offense charged against appellant, Penal Code section 190.2 contained 19 special circumstances (one ofwhich — murder while engaged in felony under subdivision (a)(17) — contained nine qualifying felonies). Given the large numberof special circumstances, California’s statutory schemefails to identify the few cases in which the death penalty ' might be appropriate, but instead makes almost all first degree murders eligible for the death penalty. This Court routinely rejects challenges to the statute’s lack of any meaningful narrowing. (People v. Stanley (1995) 10 Cal.4th 764, 842-843.) This Court should reconsider Stanley and strike down Penal Code section 190.2 and the current statutory schemeassoall- inclusive as to guarantee the arbitrary imposition of the death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. B. The Broad Application of Section 190.3(a) Violated Appellant’s Constitutional Rights Penal Code Section 190.3, factor (a), directs the jury to consider in aggravation the “circumstancesofthe crime.” (See CALJIC No. 8.85; 3 CT 609; 25 RT 8427-8429.) Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstance of the crime, even those that, from case to case, reflect starkly opposite circumstances. Of equal importanceis the use of factor (a) to embrace facts which cover the entire spectrum of circumstances inevitably present in every homicide; facts such as the age of the victim, the age of the defendant, the method ofkilling, the motive for the killing, the time of the 297 killing, and the location of the killing. In this case, for instance, the prosecutor argued that the murders were aggravated because they were multiple murders, committed in the course of a robbery (25 RT 8376), because appellant fired a warning shotinto the floor (25 RT 8402) and because appellant shot Manuel and Tudor twice each at close range (25 RT 8402-8403). This Court has never applied any limiting construction to factor(a). (People v. Blair (2005) 36 Cal.4th 686, 749 [“circumstances of crime” not required to have spatial or temporal connection to crime].) As a result, the concept of “aggravating factors” has been applied in such a wanton and freakish mannerthat almost all features of every murder can be.and have been characterized by prosecutors as “aggravating.” As such, California’s capital sentencing schemeviolates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because it permits the jury to assess death upon nobasis other than that the particular set of circumstances surrounding the instant murder were enough in themselves, without some narrowingprinciple, to warrant the imposition of death. (See Maynardv. Cartwright (1988) 486 U.S. 356, 363; but see Tuilaepa v. California (1994) 512 U.S. 967, 987-988 [factor (a) survived facial challenge at time of decision].) Appellant is aware that the Court has repeatedly rejected the claim that. permitting the jury to considerthe “circumstances of the crime” within the meaning of section 190.3 in the penalty phase results in the arbitrary and capricious imposition of the death penalty. (People v. Kennedy (2005) 36 Cal.4th 595, 641; People v. Brown (2004) 34 Cal.4th 382, 401.) Appellant urges the Court to reconsiderthis holding. 298 C. The Death Penalty Statute and Accompanying Jury Instructions Fail to Set Forth the Appropriate Burden of Proof 1. Appellant’s Death Sentence Is Unconstitutional! Because it Is Not Premised on Findings Made Beyond a Reasonable Doubt California law does not require that a reasonable doubt standard be used during any part of the penalty phase,except as to proofofprior criminality (CALJIC Nos. 8.86, 8.87). (People v. Anderson (2001) 25 Cal.4th 543, 590; People v. Fairbank (1997) 16 Cal.4th 1223, 1255; see People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are moral and not “susceptible to a burden-of-proof quantification”].) In conformity with this standard, appellant’s jury was nottold thatit had to find beyond a reasonable doubt that aggravating factors in this case outweighed the mitigating factors before determining whetheror not to impose a death sentence. Blakely v. Washington (2004) 542 U.S. 296, 303-305, Ring v. Arizona (2002) 530 U.S. 584, 604, and Apprendi v. New Jersey (2000) 530 U.S. 466, 478, require any fact that is used to support an increased sentence (other than a prior conviction) to be submitted to a jury and provedbeyond a reasonable doubt. In order to impose the death penalty in this case, appellant’s jury hadto first make several factual findings: (1) that aggravating factors were present; (2) that the aggravating factors outweighed the mitigating factors; and (3) that the aggravating factors were so substantial as to make death an appropriate punishment. (CALJIC No. 8.88; 3 CT 628-630; 25 RT 8436-8437.) Because these additional findings were required before the jury could impose the death sentence, Blakely, 299 Ring and Apprendi require that each of these findings be made beyond a reasonable doubt. Thetrial court failed to so instruct the jury and thus failed to explain the general principles of law “necessary for the jury’s understanding of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 715; see Carter v. Kentucky (1981) 450 U.S. 288, 302.) Appellant is mindful that this Court has held that the imposition of the death penalty does not constitute an increased sentence within the meaning ofApprendi (People v. Anderson (2001) 25 Cal.4th 543, 589, fn. 14), and does not require factual findings (People v. Griffin (2004) 33 Cal.4th 536, 595). The Court has rejected the argument that Apprendi, Blakely, and Ring impose a reasonable doubt standard on California’s capital penalty phase proceedings. (People v. Prieto (2003) 30 Cal.4th 226, 263.) Appellant urges the Court to reconsiderits holding in Prietoso that California’s death penalty scheme will comport with the principles set forth in Apprendi, Ring, and Blakely. Setting aside the applicability of the Sixth Amendment to California’s penalty phaseproceedings, appellant contendsthat the sentencer of a person facing the death penalty is required by due process and the prohibition against cruel and unusual punishment to be convinced beyond a reasonable doubt not only that the factual bases for its decision are true, but that death isthe appropriate sentence. This Court has previously rejected appellant’s claim that either the Due Process Clause or the Eighth Amendmentrequires that the jury be instructed that it must decide beyond a reasonable doubtthat the aggravating factors outweigh the mitigating factors and that death is the appropriate penalty. (People v. Blair, supra, 36 Cal.4th at p. 753.) Appellant requests that the Court reconsider this holding. 300 2. Some Burden of Proof Is Required, or the Jury Should Have Been Instructed That There Was No Burden of Proof State law provides that the prosecution always bears the burden of proofin a criminal case. (Evid. Code, § 520.) Evidence Code section 520 creates a legitimate state expectation as to the way a criminal prosecution will be decided and appellant is therefore constitutionally entitled under the Fourteenth Amendmentto the burden ofproofprovided for by that statute. (Cf. Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [defendant constitutionally entitled to procedural protections afforded by state law].) Accordingly, appellant’s jury should have been instructed that the State had the burden ofpersuasion regarding the existence of any factor in aggravation, whether aggravating factors outweighed mitigating factors, and the appropriateness of the death penalty, and that it was presumedthat life without parole was an appropriate sentence. CALJIC Nos. 8.85 and 8.88, the instructions given here (3 CT 609, 628-630; 25 RT 8427-8429, 8436-8437), fail to provide the jury with the guidancelegally required for administration of the death penalty to meet constitutional minimum standards, in violation of the Sixth, Eighth, and Fourteenth Amendments. This Court has held that capital sentencing is not susceptible to burdens of proof or persuasion because the exercise islargely moral and normative, and thus unlike other sentencing. (People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137.) This Court has also rejected any instruction on the presumption oflife. (People v. Arias (1996) 13 Cal.4th 92,190.) Appellant is entitled to jury instructions that comport with the federal Constitution and thus urges the Court to reconsider its decisions in Lenart and Arias. 301 Even presuming it were permissible not to have any burden ofproof, the trial court erred prejudicially by failing to articulate that to the jury. (Cf. People v. Williams (1988) 44 Cal.3d 883, 960 [upholding jury instruction that prosecution had no burden ofproof in penalty phase under 1977 death penalty law].) Absent such an instruction,there is the possibility that a juror would vote for the death penalty because of a misallocation of a nonexistent burden ofproof. 3. Appellant’s Death Verdict Was Not Premised on Unanimous Jury Findings a. Aggravating Factors It violates the Sixth, Eighth, and Fourteenth Amendments to impose a death sentence whenthere is no assurancethe jury, or even a majority of the jury, ever found a single set of aggravating circumstances that warranted the death penalty. (See Ballew v. Georgia (1978) 435 U.S. 223, 232-234; Woodson v. North Carolina (1976) 428 U.S. 290, 305.) Nonetheless, this Court “has held that unanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749) The Court reaffirmed this holding after the decision in Ring v. Arizona, supra. (See People v. Prieto, supra, 30 Cal.4th at p. 275.) Appellant asserts that Prieto was incorrectly decided, and application of the Ring reasoning mandates jury unanimity under the overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. “Jury unanimity ... is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room,and that the jury’s ultimate decision will reflect the conscience of the community.” (McKoy v. North Carolina 302 (1990) 494 U.S. 433, 452 (conc. opn. ofKennedy,J.).) The failure to require that the jury unanimously find the aggravating factors true also violates the equal protection clause of the federal constitution. In California, when a criminal defendant has been charged with special allegations that may increase the severity of his sentence, the jury must render a separate, unanimous verdict on the truth of such allegations. (See, e.g., Pen. Code, § 1158a.) Since capital defendants are entitled to more rigorous protections than those afforded noncapital defendants (see Monge v. California (1998) 524 U.S. 721, 732; Harmelin v. Michigan (1991) 501 U.S. 957, 994), and since providing more protection to a noncapital defendant than a capital defendant violates the equal protection clause of the Fourteenth Amendment(see e.g., Myers v. Y1st (9" Cir. 1990) 897 F.2d 417, 421), it follows that unanimity with regard to aggravating circumstancesis constitutionally required. To apply the requirement to an enhancement finding that may carry only a maximum punishmentof one year in prison, but notto a finding that could have “a substantial impact on the jury’s determination whether the defendant should live or die” (People v. Medina (1995) 11 Cal.4th 694, 763-764), would by its inequity violate the equal protection clause of the federal Constitution and by its irrationality violate both the due process and cruel and unusual punishmentclauses of the federal Constitution, as well as the Sixth Amendment’s guarantee ofa trial by jury. Appellant asks the Court to reconsider Taylor and Prieto and require jury unanimity as mandated by the federal Constitution. b. Unadjudicated Criminal Activity Appellant’s jury was not instructed that prior criminality had to be 303 found true by a unanimousjury; noris such an instruction generally provided for under California’s sentencing scheme. In fact, the jury was instructed that unanimity was not required. (CALJIC No. 8.87; 3 CT 616; 25 RT 8430-8431) Consequently, any use of unadjudicated criminal activity by a memberofthe jury as an aggravating factor, as outlined in Penal Code section 190.3, factor (b), violates due process and the Fifth, Sixth, Eighth, and Fourteenth Amendments, rendering a death sentence unreliable. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578 [overturning death penalty based in part on vacated prior conviction].) This Court has routinely rejected this claim. (People v. Anderson (2001) 25 Cal.4th 543, 584-585.) Here, the prosecution presented extensive evidence regarding unadjudicated criminal activity allegedly committed by appellant (e.g., 14 RT 4972, 4974-4975, 4981, 4983-4984, 4993, 5021, 5044; 15 RT 5277-5280; 17 RT 5825-5861, 5958-5959, 5974-5975, 6019-6066; 19 RT 6067-6069), and argued that such activity supported a sentence of death (See, e.g., 25 RT 8380-8381). The United States Supreme Court’s decisions in Cunninghamv. California (2007) 549 U.S. 270; Blakely v. Washington, supra, 542 U.S. 296, Ring v. Arizona, supra, 536 U.S. 584, and Apprendi v. New Jersey, supra, 530 U.S. 466, confirm that under the due process clause of the Fourteenth Amendmentandthe jury trial guarantee of the Sixth Amendment, all of the findings prerequisite to a sentence of death must be made beyond a reasonable doubt by a unanimousjury. In light of these decisions, any unadjudicated criminal activity must be found true beyond a reasonable doubt by a unanimous jury. Appellant is aware that this Court has rejected this very claim. (People v. Ward (2005) 36 Cal.4th 186, 221-222.) He asks the Court to 304 reconsiderits holdings in Anderson and Ward. 4. The Instructions Caused the Penalty Determination to Turn on an Impermissibly Vague and Ambiguous Standard The question of whether to impose the death penalty upon appellant hinged on whetherthe jurors were “persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole.” (25 RT 8437.) The phrase “so substantial” is an impermissibly broad phrase that does not channelor limit the sentencer’s discretion in a mannersufficient to minimizethe risk of arbitrary and capricious sentencing. Consequently, this instruction violates the Eighth and Fourteenth Amendments becauseit creates a standard that is vague and directionless. (See Maynardv. Cartwright (1988) 486 U.S. 356, 362.) This Court has found that the use of this phrase does not render the instruction constitutionally deficient. (People v. Breaux (1991) 1 Cal.4th 281, 316, fn. 14.) This Court should reconsider that opinion. 5. The Instructions Failed to Inform the Jury That the Central Determination Is Whether Death Is the Appropriate Punishment The ultimate question in the penalty phase ofa capital case is whether death is the appropriate penalty. (Woodson v. North Carolina, supra, 428 U.S. at p. 305.) Yet, CALJIC No. 8.88 does not makethis clear tojurors; rather it instructs them they can return a death verdictif the aggravating evidence “warrants” death rather than life without parole. These determinations are not the same. To satisfy the Eighth Amendment“requirement of individualized 305 sentencing in capital cases” (Blystone v. Pennsylvania (1990) 494 U.S. 299, 307), the punishment mustfit the offense and the offender, i.e., it must be appropriate (see Zant y. Stephens, supra, 462 U.S. at p. 879). On the other hand, jurors find death to be “warranted” when they find the existence of a special circumstance that authorizes death. (See People v. Bacigalupo (1993) 6 Cal.4th 457, 462, 464.) By failing to distinguish between these determinations, the jury instructions violate the Eighth and Fourteenth Amendments to the federal Constitution. The Court has previously rejected this claim. (People v. Arias, supra, 13 Cal.4th at p. 171.) Appellant urges this Court to reconsider that ruling. 6. The Instructions Failed to Inform the Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required to Return a Sentence of Life Without the Possibility of Parole Penal Code section 190.3 directs a jury to impose a sentenceoflife imprisonment without parole when the mitigating circumstances outweigh the aggravating circumstances. This mandatory language is consistent with the individualizedconsideration ofa capital defendant’s circumstances that is required under the Eighth Amendment. (See Boyde v. California (1990) 494 U.S. 370, 377.) Yet, CALJIC No. 8.88 does not addressthis proposition, but only informs the jury of the circumstances that permit the rendition of a death verdict. By failing to conform to the mandate of Penal Code section 190.3, the instruction violated appellant’s right to due process of law. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) This Court has held that since the instruction tells the jury that death can be imposed only ifit finds that aggravation outweighs mitigation,it is 306 unnecessary to instruct on the converse principle. (People v. Duncan (1991) 53 Cal.3d 955, 978.) Appellant submits that this holding conflicts with numerouscases disapproving instructions that emphasize the prosecution theory of the case while ignoring or minimizing the defense theory. (See People v. Moore (1954) 43 Cal.2d 517, 526-529; People v. Kelly (1980) 113 Cal_App.3d 1005, 1013-1014; see also People v. Rice (1976) 59 Cal.App.3d 998, 1004 [instructions required on every aspect of case].) It also conflicts with due process principles in that the nonreciprocity involved in explaining how a death verdict may be warranted, but failing to explain when an LWOPverdict is required, tilts the balance of forces in favor of the accuser and against the accused. (See Wardius v. Oregon (1973) 412 U.S. 470, 473-474.) 7. The Instructions Violated the Sixth, Eighth and Fourteenth Amendments byFailing to Inform the Jury Regarding the Standard of Proof and Lack of Need for Unanimity as to Mitigating Circumstances The failure of the jury instructionsto set forth a burden of proof impermissibly foreclosed the full consideration of mitigating evidence required by the Eighth Amendment. (See Brewer v. Quarterman (2007) 550 U.S. 286, 293-296; Mills v. Maryland (1988) 486 U.S. 367, 374; Lockett v. Ohio (1978) 438 U.S. 586, 604; Woodson v. North Carolina, supra, 428 U.S. at p. 304.) Constitutional error occurs whenthereis a likelihood that a jury has applied aninstruction in a way that prevents the consideration of constitutionally relevant evidence. (Boyde v. California, supra, 494 U.S. at p. 380.) That occurred here because the jury wasleft with the impression that the defendant bore someparticular burden in proving facts in mitigation. 307 A similar problem is presented by the lack of instruction regarding jury unanimity. Appellant’s jury wastold in the guilt phase that unanimity was required in order to acquit appellant of any charge or special circumstance. In the absence of an explicit instruction to the contrary, there is a Substantial likelihood that the jurors believed unanimity was also required for finding the existence of mitigating factors. A requirement of unanimity improperly limits consideration of mitigating evidence in violation ofthe Eighth Amendmentofthe federal Constitution. (See McKoy v. North Carolina, supra, 494 U.S.at pp. 442-443.) Had the jury been instructed that unanimity was required before mitigating circumstances could be considered, there would be no question that reversal would be required. (/bid.; see also Mills v. Maryland, supra, 486 U.S. at p. 374.) Because there is a reasonable likelihood that the jury erroneously believed that unanimity was required, reversal is also required here. In short, the failure to provide the jury with appropriate guidance was prejudicial and requires reversal of appellant’s death sentence since he was deprived ofhis rights to due process, equal protection and a reliable capital-sentencing determination, in violation of the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. 8. The Penalty Jury Should Be Instructed on the Presumption of Life The presumption of innocenceis a core constitutional and adjudicative value that is essential to protect the accused in a criminal case. (See Estelle v. Williams (1976) 425 U.S. 501, 503.) In the penalty phase of a capital case, the presumptionoflife is the correlate of the presumption of innocence. Paradoxically, however, although the stakes are much higherat the penalty phase,there is no statutory requirementthat the jury be 308 instructed as to the presumption oflife. (See Note, The Presumption of Life: A Starting Pointfor Due Process Analysis ofCapital Sentencing (1984) 94 Yale L.J. 351; cf. Delo v. Lashley (1983) 507 U.S. 272.) Thetrial court’s failure to instruct the jury that the law favorslife and presumeslife imprisonment without parole to be the appropriate sentence violated appellant’s right to due process of law (U.S. Const. 14" Amend.), his right to be free from cruel and unusual punishment and to have his sentence determined in a reliable manner (U.S. Const. 8th & 14" Amends.) andhis right to the equal protection of the laws (U.S. Const. 14" Amend.). In People v. Arias, supra, 13 Cal.4th 92, this Court held that an instruction on the presumption of life is not necessary in California capital cases, in part because the United States Supreme Court has held that “the state may otherwise structure the penalty determination asit seesfit,” so long as state law otherwise properly limits death eligibility. Wd. at p. 190.) However,as the other sections of this brief demonstrate, this state’s death penalty law is remarkably deficient in the protections needed to insure the consistent and reliable imposition of capital punishment. Therefore, a presumption oflife instruction is constitutionally required. D. Failing to Require That the Jury Make Written Findings Violates Appellant’s Right to Meaningful Appellate Review Consistent with state law (People v. Fauber (1992) 2 Cal.4th 792, 859), appellant’s jury was not required to make any written findings during the penalty phase of thetrial. The failure to require written or other specific findings by the jury deprived appellant of his rights under the Sixth, Eighth, and Fourteenth Amendmentsto the federal Constitution, as well as his right 309 to meaningful appellate review to ensure that the death penalty was not capriciously imposed. (See Gregg v. Georgia (1976) 428 U.S. 153, 195.) This Court has rejected these contentions. (People v. Cook (2006) 39 Cal.4th 566, 619.) Appellant urges the Court to reconsider its decisions on the necessity of written findings. ‘EK. TheInstructions to the Jury on Mitigating and Agegravating Factors Violated Appellant’s Constitutional Rights 1. The Useof Restrictive Adjectives in the List of Potential Mitigating Factors The inclusion in the list of potential mitigating factors of such adjectives as “extreme” and “substantial” (see CALJIC No. 8.85; Pen. Code, § 190.3, factors (d) and (g); 3 CT 609-611; 25 RT 8427-8429) acted as barriers to the consideration of mitigation in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. (Mills v. Maryland (1988) 486 U.S. 367, 384; Lockett v. Ohio (1978) 438 U.S. 586, 604.) Appellant is aware that the Court has rejected this very argument (People v. Avila (2006) 38 Cal.4th 491, 614), but urges reconsideration. 2. The Failure to Delete Inapplicable Sentencing Factors Many ofthe sentencing factors set forth in CALJIC No.8-85 were inapplicable to appellant’s case. (See, e.g., CALJIC No. 8.85 (e) [victim participation], (f) [moral.justification], (g) [duress or domination], (1) [age of defendant], (j) [minor participation].) Thetrial court failed to omit those factors from the jury instructions (3-CT 609-611; 25 RT 8427-8429),likely confusing the jury and preventing the jurors from makinganyreliable determination of the appropriate penalty, in violation of defendant’s 310 constitutional rights. Appellant asks the Court to reconsiderits decision in People v. Cook, supra, 39 Cal.4th at p. 618, and holdthat the trial court must delete any inapplicable sentencing factors from the jury’s instructions. 3. The Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators In accordance with customary state court practice, nothing in the instructions advised the jury which of the sentencing factors in CALJIC No. 8.85 were aggravating, which were mitigating, or which could be either aggravating or mitigating depending upon the jury’s appraisal of the evidence. (3 CT 609-611; 25 RT 8427-8429.) The Court has upheldthis | practice. (People v. Hillhouse (2002) 27 Cal.4th 469, 509.) As a matter of state law, however, several of the factors set forth in CALJIC No. 8.85 — factors (d), (e), (f), (g), (h), and (j) — were relevant solely as possible mitigators. (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v. Davenport (1985) 41 Cal.3d 247, 288-289.) Appellant’s jury, however, was left free to concludethat a “not” answer as to any of these “whetheror not” sentencing factors could establish an aggravating circumstance. Consequently, the jury was invited to aggravate appellant’s sentence based on non-existent or irrational aggravating factors precludingthereliable, individualized, capital sentencing determination required by the Eighth and Fourteenth Amendments. (See Stringer v. Black (1992) 503 U.S. 222, 230- 236.) As such, appellant asks the Court to reconsider its holding that the trial court need not instruct the jury that certain sentencing factors are only relevant as mitigators. 311 F. The Prohibition Against Inter-case Proportionality Review Guarantees Arbitrary and Disproportionate Imposition of the Death Penalty The California capital sentencing schemedoesnot require that either the trial court or this Court undertake a comparison betweenthis and other similar cases regarding the relative proportionality of the sentence imposed, 1.¢., inter-case proportionality review. (See People v. Fierro (1991) 1 Cal.4th 173, 253.) The failure to conduct inter-case proportionality review violates the Fifth, Sixth, Eighth, and Fourteenth Amendmentprohibitions against proceedings conductedin a constitutionally arbitrary, unreviewable manneror that violate equal protection or due process. For this reason, appellant urges the Court to reconsiderits failure to require inter-case proportionality review in capital cases. G. The California Capital Sentencing Scheme Violates the Equal Protection Clause California’s death penalty schemeprovides significantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes in violation of the Equal Protection Clause. To the extent that there may be differences between capital defendants and non-capital felony defendants, those differences justify more, not fewer, procedural protections for capital defendants. In a non-capital case, any true finding on an enhancementallegation must be unanimous and beyond a reasonable doubt, aggravatingand mitigating factors must be established by a preponderance ofthe evidence, and the sentencer mustset forth written reasonsjustifying the defendant’s. sentence. (People v. Sengpadychith (2001) 26 Cal.4th 316, 325; Cal. Rules of Court, rules 4.421 and 4.423.) In a capital case, there is no burden of 312 proofat all, and the jurors need not agree on what aggravating circumstances apply nor provide any written findingsto justify the defendant’s sentence. Appellant acknowledges that the Court has previously rejected these equal protection arguments (People v. Manriquez (2005) 37 Cal.4th 547, 590), but he asks the Court to reconsider. H. California’s Use of the Death Penalty as a Regular Form of Punishment Falls Short of International Norms This Court has rejected numeroustimesthe claim that the use of the death penalty atall, or, alternatively, that the regular use of the death penalty violates international law, the Eighth and Fourteenth Amendments, or “evolving standards of decency” (Trop v. Dulles (1958) 356 U.S. 86, 101). (People v. Cook , supra, 39 Cal.4th at pp. 618-619; People v. Snow (2003) 30 Cal.4th 43, 127; People v. Ghent (1987) 43 Cal.3d 739, 778-779.) In light ofthe international community’s overwhelmingrejection of the death penalty as a regular form ofpunishment and the U.S. Supreme Court’s decision citing international law to support its decision prohibiting the imposition of capital punishment against defendants who committed their crimes as juveniles (Roper v. Simmons (2005) 543 U.S. 551, 554), appellant urges the Court to reconsiderits previous decisions. // HI 313 1X REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF THE ERRORS Assuming arguendothat none ofthe errors in this case is prejudicial by itself, the cumulative effect of these errors nevertheless undermines the confidence in the integrity of the guilt and penalty phase proceedings and warrants reversal of the judgment of conviction and sentence of death. Even where nosingleerror in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may be so harmful that reversal is required. (See Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [cumulative errors may so infect “the trial with unfairness as to make the resulting conviction a denial of due process”]; Cooperv. Fitzharris (9th Cir. 1987) 586 F.2d 1325, 1333 [“prejudice may result from the cumulative impact of multiple deficiencies”].) Reversal is required unless it can be said that the combinedeffectof all of the errors, constitutional and otherwise, was harmless beyond a reasonable doubt. (People v. Williams (1971) 22 Cal-App.3d 34, 58-59 [applying the Chapman standardto thetotality of the errors when errors of federal constitutional magnitude combined with othererrors].) The trial court’s erroneous failure to suppress appellant’s involuntary and Miranda-violative interrogation statement and the evidence derivative of the interrogating officers’ deliberate misconduct (ArgumentI), together with the unfair advantage which the prosecutor obtained by withholding evidence ofthat statement until rebuttal (Argument VI), made appellant’s conviction a near foregone conclusion. Appellant’s trial was rendered fundamentally unfair and his fate was sealed by the trial court’s erroneous 314 admission into evidence of: his statements to Mary Websterrevealing other crimes, his acts of violence against Greg Nivens and Randy Hobson and the detectives’ statements to Websterasserting his guilt and dangerousness (ArgumentII); his solicitations of Greg Billingsley and Billy Joe Gentry to assist with a robbery (ArgumentIII); and his statements to robbery investigators (Argument IV). The jurors’ ability to determine whetherthe prosecution had proved beyond a reasonable doubt that appellant committed the crimes charged, the only issue actually disputed, was obliterated by the avalancheof inflammatory, irrelevant and prejudicial evidence of appellant’s bad character. Appellant’s conviction was further guaranteed by the erroneous exclusion of evidence that law enforcement’s investigation was incomplete (Argument V). The cumulative effect of these errors so infected appellant’s trial with unfairness as to make the resulting conviction a denial of due process. (Cal. Const., art. I, § 15; U.S. Const. 14" Amend.; Donnelly v. DeChristoforo, supra, 416 U.S. at p. 643.) Appellant’s conviction, therefore, must be reversed. (See Killian v. Poole (9th Cir. 2002) 282 F.3d 1204, 1211 [“even if no single error were prejudicial, where there are several substantial errors, ‘their cumulative effect may nevertheless be so prejudicial as to require reversal’”]; Harris v. Wood (9th Cir. 1995) 64 F.3d 1432, 1438-1439 [holding cumulative effect of the deficiencies in trial counsel’s representation requires habeasrelief as to the conviction]; United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1475-1476 [reversing heroin convictions for cumulative error]; People v. Holt (1984) 37 Cal.3d 436, 459 [reversing capital murder conviction for cumulative error].) In addition, the death judgmentitself must be evaluated in light of the cumulative error occurring at both the guilt and penalty phases of 315 appellant’s trial. (See People v. Hayes (1990) 52 Cal.3d 577, 644.) In this context, this Court has expressly recognized that evidence that may _ otherwise not affect the guilt determination can have a prejudicial impact on the penalty trial. (See People v. Hamilton (1963) 60 Cal.2d 105, 136-137; see also People v. Brown (1988) 46 Cal.3d 432, 466 [error occurring at the guilt phase requires reversal of the penalty determination if thereis a reasonable possibility that the jury would have rendered a different verdict absent the error]; In re Marquez (1992) 1 Cal.4th 584, 605, 609 [an error may be harmlessat the guilt phase but prejudicial at the penalty phase].) Further, the cumulative effect of the errors relating to the penalty phase ofthe trial underminethereliability of the death sentence. During jury selection, the trial court improperly restricted defense counsel’s voir dire of prospective jurors (Argument VII). That error was exacerbated by the other defects in California’s capital-sentencing scheme (Argument VIII). In this way, the errors at the penalty phase — even if individually not found to be prejudicial — precluded the possibility that the jury reached an appropriate verdict in accordance with the state death penalty statute or the federal constitutional requirements of a fundamentally fair, reliable, non- arbitrary and individualized sentencing determination. Reversal of the death judgment is mandated here because it cannot be shown that these penalty errors, individually, collectively, or in combination with the errors that occurred at the guilt phase, had no effect on the penalty verdict. (See Hitchcock v. Dugger (1987) 481 U.S. 393, 39; Skipper v. South Carolina (1986) 476 U.S.1, 8; Caldwell v. Mississippi (1985) 472 U.S. 320, 341.) Accordingly, the combined impactofthe variouserrors in this case requires reversal of appellant’s convictions and death sentence. 316 xX THE RESTITUTION FINE IS UNLAWFUL BECAUSE THERE WASINSUFFICIENT EVIDENCE OF ABILITY TO PAY AND BECAUSE THE COURT FAILED TO OFFSET THE FINE WITH THE AMOUNT OF DIRECT VICTIM RESTITUTION ORDERED After sentencing appellant to death, the trial court imposed both a restitution fine and an orderfor direct victim restitution. (25 RT 8471.) The court’s only comments on the subject were as follows: The Court will be ordering a restitution fine pursuant to Government Code Section 13967 subdivision (a) in the amountoften thousand dollars to be paid forthwith or as provided by Penal Code Section 2085.5 subdivision (a). [] Defendant will make victim restitution in the amount of four thousand dollars pursuant to Penal Code Section 2085.5 subdivision (b), pursuant to Government Code Section 13967.2 and Penal Code Section 1203.04. Defendant will pay restitution to the victim and the standard income deduction to be effective so long as the recordsfor restitution upon which it is based is effective or until further order of the court. (25 RT 8471.)The restitution fine must be vacated, as it was based on insufficient evidence of appellant’s ability to pay, a statutory prerequisite.to the imposition ofthat fine pursuant to the 1993 law applicable to appellant’s case. Evenifthe restitution fine was lawful, appellant was 8! The trial court was presumably relying on the probation officer’s report, which recommended imposition of both the $10,000 restitution fine and the order for $4,000 in victim restitution, citing the same statutory authority to which thetrial court referred in entering these orders. (3 CT 746-7477.) The probation report indicated that Mr. Manuel, the oldest son of Val Manuel, was seekingrestitution in the amount of $4,000 to recover burial expenses. (3 CT 735.) The probation report made no mention of appellant’s ability or inability to pay. 317 entitled to have the amountofthat fine reduced by the amountof direct victim restitution ordered. A. The Restitution Fine Must Be Vacated Dueto Insufficient Evidence of Appellant’s Inability to Pay In imposingthe restitution fine, the trial court relied correctly on Government Codesection 13967, the restitution statute in effect at the time of appellant’s offense in June, 1993. (25 RT 8471.) Atthat time, the pertinent part of that statute provided as follows: (a) Upon a person being convicted of any crime in the State of California, the court shall, in addition to any other penalty provided or imposed underthe law, order the defendantto pay restitution in the form of a penalty assessment in accordance with Section 1464 of the Penal Code andto pay restitution to the victim in accordance with subdivision (c). In addition, if the person is convicted of one or more felony offenses, the court shall impose a separate and additionalrestitution fine of not less than two hundred dollars ($200), subject to the defendant’s ability to pay, and not more than ten thousand dollars ($10,000). In setting the amount of the fine for felony convictions, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstancesofits commission, any economic gain derived by the defendant as a result of the crime, and the extent to which others suffered losses as a result of the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section. This fine shall not be subject to penalty assessments as provided in Section 1464 of the Penal Code. ... (c) In cases in which a victim has suffered economic loss as a result of the defendant’s criminal conduct, and the 318 defendant is denied probation, in lieu ofimposing all or a portion ofthe restitution fine, the court shall orderrestitution to be paid to the victim. (Stats. 1992, ch. 682, § 4, p. 2922,italics added.) The language of subdivision (a) of that statute plainly stated that a restitution fine could be imposedonly to the extent that the defendant had the ability to pay it. At that time, Penal Code section 1202.4, subdivision (a), provided: In any case in which a defendantis convicted of a felony, the court shall order the defendantto paya restitution fine as provided in subdivision (a) of Section 13967 ofthe Government Code. Suchrestitution fine shall.be in addition to any other penalty or fine imposed and shall be ordered regardless ofthe defendant’s present ability to pay. However, ifthe courtfinds that there are compelling and extraordinary reasons, the court may waive imposition ofthefine. When such a waiveris granted, the court shall state on the record all - reasons supporting the waiver. (Stats. 1990, c. 45 (A.B.1893), § 4, italics added.) In People v, Frye (1994) 21 Cal-App.4th 1483, the Court of Appeal harmonizedthe twostatutes, holding that norestitution fine, including one of $200, could be imposed if it was beyond the defendant’s ability to pay. (id. at p. 1486.) The court rejected the prosecution’s argumentthat, read together, the statutes permitted the imposition of a $200 fine without considering ability to pay, and concluded that “even the imposition ofthe $200 minimum fine must be subject to a defendant’s ability to pay.” (/bid.) Thus, in 1993, when the offenses were committed, ability to pay was an absolute prerequisite to imposition of even the minimum restitution fine. (bid.) Asnoted above,the trial court did not address. appellant’s ability to 319 pay. Admittedly, Government Code section 13967 did not require an express finding on that factual question, and absent a showingto the contrary, thetrial court is presumed to have fulfilled its duty to make the requisite determination. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836-1837; People v. Frye, supra, 21 Cal.App.4th at pp. 1485-1486.) Appellant does not contendthat thetrial court failed to make the necessary finding. However, becausethetrial court had before it no evidencethat appellant would be able to pay any amountoffine, and indeed, had ample evidenceto the contrary, the implied finding that he was able to pay fine of $10,000, or indeed any fine at all, wasbased oninsufficient evidence. Becausethetrial court’s statutory authority to order the restitution fine was subject to a finding that appellant was able to pay, that finding must be supported by substantial evidence and appellant may challenge the sufficiency of that evidence for the first tme on appeal. (See Peoplev. Butler (2003) 31 Cal.4th 1119, 1126.) In Butler, this Court held that the defendant’s failure to object to an order for HIV testing in the trial court did not bar his challenge on appealto the sufficiency of the evidence to support the factual prerequisite on which the order depended. The Court observed that “Tgjenerally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not supported by substantial evidence, however,is an obvious exception.” [Citation.] This principle of appellate review is not limited to judgments... . (bid., footnote omitted.) The statute at issue in Butler, Penal Code section 1202.1, required the issuance of an HIV testing order for anyone convicted of certain sex offenses, but only upon a finding ofprobable cause to believe that body 320 fluids had been transmitted from the defendantto the victim. The prerequisite ofprobable cause defined the substantive authority of the court to make the order. (Jbid.) Becausethe termsof the statute condition imposition on the existence of imposition on the existence ofprobable cause, the appellate court can sustain the order only if it finds evidentiary support, which it can do simply from examining the record. (Id. at p. 1127.) The Court held that the defendant’s challenge to the sufficiency of the evidence was not forfeited by the failure to raise it at trial. (Id. at 1128.) The majority implicitly rejected the position of the concurring opinion that the Butlerholding should be limited to HIV testing orders. (People v. Butler, supra, 31 Cal.4th at pp. 1130-1131 (conc. opn. of Baxter, J., joined by Chin,J.).)” The Court in Butler recognized an additional reasonthatthe forfeiture rule should not apply to a claim such as appellant’s: applying that rule would havethe effect of “converting an appellate issue into a habeas corpusclaim ofineffective assistance of counsel for failure to preserve the question by timely objection.” (/d.at p. ® The concurring opinion’s reliance on People v. Gibson (1994) 27 Cal.App.4th 1466, 1470, does not undercut appellant’s claim, notwithstanding the holding in Gibson that a defendant should not be permitted to contest for the first time on appealthe sufficiency of the record to support his ability to pay a restitution fine pursuant to Government Code section 13967, subdivision (a). The Court ofAppeal in Gibson did not have the benefit of the Court’s decision in Butler, recognizing that an exception to the waiver and forfeiture rules must be made where the court’s very authority to enter the order depends upona particular factual predicate, and the Court of Appeal in Gibson also failed to recognize that because the court’s authority to imposea restitution fine pursuant to Government Code section 13967, subdivision (a), was statutorily conditioned on a finding that appellant was able to pay, that finding, whether express or implicit, must be supported by substantial evidence in the record on appeal. 321 1128.) In this capital case, that would certainly be the result, and would therefore defeat what the Butler Court found wasthe principal rationale for the forfeiture doctrine: judicial economy. (See ibid.) The record ofthe trial court proceedings in appellant’s case included no evidence that, once sentenced to death, appellant would be able to pay a fine of any amount, let alone one of $10,000. The trial court appointed counsel for appellant through the Indigent Criminal Defender Program, indicating that appellant was indigent from the outset of the criminal proceedings. (1 RT 4-5.) Indeed,at his first court appearance, appellant stated on the record that he was indigent. (1 RT 4.) Attrial, the prosecution presented evidence that when appellant was arrested, he had only $189 in the bank. (20 RT 6786.) The testimony of James Park established that the California Department of Corrections does not permit death row inmates to work. (25 RT 8300.) Park also testified that it appeared appellant had nobody who would send him moneyin prison. (25 RT 8338.) The evidence before the trial court showed that appellant had no assets and no prospect of earning any money whatsoever. The evidence wastherefore insufficient to satisfy the statutory ability-to-pay prerequisite for imposinga restitution fine. This Court’s recent decisions in People v. Gamache (2010) 48 Cal.4th 347 and People v. Avila (2009) 46 Cal.4th 680 do not require a different result. The defendant in Gamache argued that he wasentitled to application of ameliorative statutory amendments which had occurred while his case was pending appealandthat the trial court had erred by imposing a restitution fine without taking adequate consideration ofhis ability to pay. (People v. Gamache, supra, 48 Cal.4th at p. 409) Appellant makesneither contention. The defendant in Gamache did not argue that there was 322 insufficient evidence ofhis ability to pay, as appellant does here. Further, in Gamache, the Court found no evidence in the record to substantiate the defendant’s claimedinability to pay. (Jbid.) In People v. Avila, supra, 46 Cal.4th at pp. 728-729, the defendant sought the benefit of the version ofthe restitution statute in effect from 1992 to 1994. This Court rejected that claim because neitherthe offense nor sentencing had occurred in that period of time. (/bid.) Here, appellant seeks the benefit of the statute in effect at the time of his offenses. The defendant in Avila also challenged the restitution fine on the groundthatit was unauthorized; unlike appellant, he did not contend that there was insufficient evidence ofhis ability to pay. (Ud. at p. 729.) Thus, both Gamache and Avila are inapposite. The record on appeal contains no substantial evidence that appellant had any present or future ability to pay a restitution fine of any amount, and in fact contains ample evidence to the contrary. The evidence was insufficient to support the restitution fine of $10,000, and that order must be vacated. B. Even If the Restitution Fine Is Not Vacated, it Must Be Reduced by the Amountofthe Victim Restitution Order In addition to imposingthe restitution fine of $10,000, thetrial court entered an orderfor victim restitution in the amount of $4,000. (25 RT 8471.) Thetrial court had the authority to imposea victim restitution order pursuant to the version of Government Code section 13967, subdivision(c), in effect at the time of appellant’s offenses.’ However, that statute 83 Thetrial court cited Government Code section 13967.2 and Penal (continued...) 323 required that the amountofthe restitution fine be offset by the amount of any direct restitution order. Asset forth above, when the offenses were committed, Government Code section 13967, subdivision (a), allowed for imposition of a maximum restitution fine of $10,000." Subdivision (c) ofthat statute provided that wherethe victim suffered economic loss as a result of the offense, the court could order direct victim restitution “in lieu of imposingall or a portion of the restitution fine.” (Stats. 1992, ch. 682, § 4, p. 2922.) In other cases, the Attorney General has conceded, and the Court of Appeal has found, that this language prohibited courts from imposing both a restitution fine and a direct victim restitution order. (See People v. Zito (1992) 8 Cal.App.4th 83 (...continued) Code sections 1203.04 and 2085.5(b) as the authority for the victim restitution order. At the time of appellant’s sentencing in 1996, Government Code section 13967.2 addressed the mechanics by which paymentofa restitution order could be obtained from a defendant’s wages, not the authority for such an order. (Stats. 1990, c. 45 (A.B.1893), § 3.) Section 1203.04 had been repealed in 1995, before appellant was sentenced. (Stats. 1995, c. 313 (A.B. 817), § 8, eff. Aug. 3, 1995.) At the time ofthe offenses in 1993, section 1203.04 provided the authority to order victim restitution as a condition of probation. (Stats. 1992, c. 682 (S.B.1444), § 5, eff. Sept. 14, 1992.) Appellant wasstatutorily ineligible for probation. (Pen. Code § 1203.06(a)(1).) At the time of sentencing, Penal Code section 2085.5 (b) provided the California Department of Corrections with the powerto collect a percentage of an inmate’s wages and trust account deposits in order to satisfy a victim restitution order. (Stats. 1995, c. 876 (S.B. 911), § 4.) Thus, none of the statutes cited by the trial court provided the authority to impose a victim restitution order in the present case. However, such authority was providedby the statutes discussed below. 84 The relevantportionsofthe statute are set forth above at pp. 318- 319. 324 736, 743 [trial court was prohibited from imposing a $10,000 restitution fine whenit had imposed a $300,000 direct restitution order]; People v. Kwolek (1995) 40 Cal.App.4th 1521, 1536 [trial court erred in imposing a $5,000 restitution fine when it also imposed a $19,806 direct restitution order].) Although under the 1993 version of Government Code section 13967, subdivision (c), a trial court could order the defendantto pay direct restitution to the victim in the full, unlimited amountofhis or her losses, the “in lieu of” language of that subdivisionstill limited the maximum restitution fine that could be imposed under subdivision (a). The limit was “not $10,000, but $10,000 less the amountofrestitution to the victim. A credit toward the maximum restitution fine allowable must be given for that amountof direct restitution to be paid to the victim.” (People v. Cotter (1992) 6 Cal.App.4th 1671, 1677 [discussing nearly identical provisions in the 1990 version of the statute].) Thus, appellant was entitled to have his $10,000 restitution fine reduced by the $4,000 direct restitution order. Although appellant did not object to the restitution orders at the time oftrial, the error is not forfeited. Where a sentencing order “could not lawfully be imposed under any circumstancein the particular case,”it is “unauthorized,” and the error need net be preserved by objection below. (People v. Scott (1994) 9 Cal.4th 331, 354.) The trial court ordered restitution in amounts that could not lawfully be imposedin this case under any circumstances. The orders were unauthorized and therefore theerroris not waivedor forfeited by appellant’s failure to object. U/bid.; see,e.g., People v. Zito, supra, 8 Cal.App.4th at p, 743.) 325 tnaenORSNEEBAERAena Panaeptrt ee tet t= C. The Restitution Fine May Not Stand The $10,000 restitution fine must be stricken because the evidence in the record is insufficient to support the trial court’s implied finding that appellant had the ability to pay. Given appellant’s indigency and lack of earning capacity, a remand for reconsideration of appellant’s ability to pay would be pointless. In the event that the court declines to find that the restitution fine is supported by insufficient evidence, it must nevertheless reduce the amount of the restitution fine by $4,000, the amountofthe direct victim restitution ordered. | // // 326 CONCLUSION Forall of the reasons stated above, both the judgmentof conviction and sentence of death in this case must be reversed. DATED:April 11, 2011 Respectfully submitted, MICHAEL J. HERSEK State Public Defender Lgl ROBIN KALLMAN Senior Deputy State Public Defender Attorneys for Appellant 327 CERTIFICATE OF COUNSEL (Cal. Rules of Court, rule 8.630(b)(2)) I, Robin Kallman, am the Deputy State Public Defender assigned to represent appellant Charles Case in this automatic appeal. I conducted a word count of this brief using our office’s computer software. On the basis of that computer-generated word count, I certify that this brief is 96,192 wordsin length. Dated: April 11, 2011 RQp> ROBIN KALLMAN Attorney for Appellant 328 DECLARATION OF SERVICE Re: People v. Charles Case California Supreme Court No. 8057156 I, HIROKO CRUZ,declare that I am over 18 years of age, and not a party to the within cause; my business address is 221 Main Street, 10th Floor, San Francisco, California 94105. I served a true copy of the attached: APPELLANT’S OPENING BRIEF on each ofthe following, by placing samein an envelope addressed (respectively) as follows: Office of the Attorney General Attention: Catherine Chatman 1300 I Street P.O. Box 944255 Sacramento, CA 94244-2550 California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105 Charles Case P.O. Box K28300 San Quentin, CA 94974 Hon. Jack Sapunor Superior Court of California, County of Sacramento 720 9th Street Sacramento, CA 95814 Each said envelope was then, on April 11, 2011, deposited in the United States Mail at San Francisco, California, the county in which J am employed, with the postage thereon fully prepaid. I declare under penalty ofperjury that the foregoing is true and correct. Signed on April 11, 2011, at San Francisco, California. DECLARANT
