PEOPLE v. CASEAppellant’s Reply BriefCal.June 14, 2013SUPREME COURT ED 1 No. $057156 nm " | COPYJUN 14 2013 Franka. MoGuie Glee SUPREME COURT COPY Deputy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. (Sacramento County Superior Court No. CHARLES EDWARD CASE, 93F05175) Defendant and Appellant. APPELLANT’S REPLY BRIEF Appeal from the Judgmentof the Superior Court of the State of California for the County of Sacramento HONORABLE JACK SAPUNOR, JUDGE MICHAEL J. HERSEK State Public Defender ROBIN KALLMAN State Bar No. 118639 Senior Deputy State Public Defender 1111 Broadway, Suite 1000 Oakland, California 94607 Telephone:(510) 267-3300 Attorneys for Appellant TABLE OF CONTENTS page APPELLANT'S REPLY BRIEF ...............,bbc e eee, 1 INTRODUCTION00cence e een, 1 I APPELLANT’S STATEMENT WAS MIRANDA- VIOLATIVE, INVOLUNTARY, AND OBTAINED BY DELIBERATELY IGNORING APPELLANT’S INVOCATION OF THE RIGHT TO REMAIN SILENT, AND THE ADMISSION INTO EVIDENCE OF THE STATEMENT AND THE EVIDENCE ACQUIREDAS A RESULT OF THE STATEMENT WAS PREJUDICIAL ERROR 2.0...etenett en eees 3 A. Introduction 2... 0...cceee e eee eee eee 3 B. Whether Appellant’s Invocation of the Right to Remain Silent Is Viewed as Complete or Partial, the Officers Failed to HonorIt, and Appellant Did Not Implicitly or Expressly Waive His Rights ...............000..0000. 5 1. No reasonable officer would have understood appellant’s refusal to talk about the crime under investigation as anything other than an unequivocal invocation of the right to remain silent ..........eect eee eens 6 a. Any reasonable officer would have understood appellant’s statement, “No. Not about a robbery murder. Jesus Christ,” as a blanket refusal to talk about anything having to do with that crime ....... 7 b. Even if viewed as a partial invocation, the plain meaning of appellant’s refusal to talk about the robbery-murder included the very topics that the officers continued to probe ............. 0c. seen, 8 as TABLE OF CONTENTS page c, The cases on which respondentrelies do not support its position .......-.. 5. eee 11 d. Respondent’s reliance on appellant’s statements after the invocation is IMproper ...... eees 13 2. Appellant neither expressly nor implicitly waived his right to remain silent............-.-- 15 C. Appellant’s Statement Was Involuntary .........-...-: 17 D. The Evidence Obtained As a Result of Appellant’s Statement Was Inadmissible ...........-+ 0 eee eee eee 21 l. The evidence derivative of appellant’s statement is inadmissible because appellant’s statement was involuntary... 2...eeeee 22 2. The evidence derivative of appellant’s statement should have been suppressed because the officers deliberately ignored appellant’s invocation of the right to remain silent........... 23 3. The testimony of Burlingame and the -Billingsleys would not inevitably have been discovered .... 0... ceceeee eee 29 E. The Erroneous Admission Into Evidence of | Appellant’s Unlawfully Obtained Statement Was Prejudicial 2.0...eeeeee 31 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ADMITTING EVIDENCE OF APPELLANT’S PRIOR CRIMINALITY AND THE DETECTIVES’ STATEMENTS TO MARY WEBSTER FOR THE PURPOSE OF BOLSTERING HER CREDIBILITY ..............Leen een eens 38 ul UI TABLE OF CONTENTS page Respondent Does Not Refute Appellant’ s Showing that the Evidence of Appellant’s Prior Criminality Was Minimally Probative of Any Disputed Fact...eeeeee 39 l. Respondent does notrefute appellant’s showing that Webster’s fear of appellant was not in dispute . 40 2, Respondent does notrefute appellant’s showing that the altercations with Nivens and Hobson were minimally probative of Webster’s fear and cumulative of other evidence .................. 42 3. Respondent does not refute appellant’s showing that appellant’s statements regarding prior robberies were of scant probative value for any permissible purpose .......... 0.000.000 cece 43 The Prejudicial Effect of the Evidence, IncludingIts Inflammatory Nature, Outweighed Its Minimal Probative Value oo.cece cece e neces 44 The Limiting Instructions Did Not Cure the Prejudicial Effect of the Evidence ...... 000.00. eee eee 46 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ADMITTED EVIDENCE THAT APPELLANT HAD SOLICITED BILLINGSLEY AND GENTRY TO COMMIT OTHER CRIMES 1.0... cece ence eeey 48 A. The Solicitations Were Inadmissible as Evidence of Comimon Design or Plan... 0.2... ee eee eee ee 49 Whetherthe Solicitations Could Have Been Admitted for Another Purpose Is Irrelevant Because the Jury Was Instructed That They Could Be Considered Only on the Issue of Common Design or Plan ............... 52 ili IV E. TABLE OF CONTENTS The Solicitations were Inadmissible to Show Intent 2... s53 The Solicitations were Inadmissible on the Issue of Motive ..... 0...eee2. 55 Conclusion 2...eeeee 58 THE TRIAL COURT ERRED IN ADMITTING APPELLANT’S STATEMENTS AS A GUEST SPEAKER AT THE MEETINGS OF ROBBERY INVESTIGATORS...... 60 A. Appellant’s Answersto the Investigators’ Questions Were Not Admissible as Generic Threats Because They Related to Past, Not Future, Events and to A Hypothetical Class of Victims that Did Not Include the Victims in this Case...2.tes62 1. Appellant’s statements. were not probative of his mental state at the time of the charged crimes ..... 62 2. The Victims in this Case Did Not Fall Within the Category of Individuals Which Was the Subject of the Hypothetical Threats .........-... 68 3... Because Appellant’s Statements Were Limited to Hypothetical Questions Related to Remote Prior Crimes, They Did Not Establish a Present Mental State .......eee eee ees . 69 The Evidence of Appellant’s Statements Was More Prejudicial than Probative ........-. 0s eee eee eens 72 The Admission of Appellant’s Statements Resultedin a Miscarriage of Justice and Rendered Appellant's Trial Fundamentally Unfair .. 0.2... 6.02. e eee ee eee 73 iv VI VI TABLE OF CONTENTS page THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS TO A FAIR TRIAL AND TO PRESENT A DEFENSE BY EXCLUDING EVIDENCE THAT LAW ENFORCEMENT’S INVESTIGATION WAS INCOMPLETE ... 2...ecree eeey 75 THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED DUE PROCESS BY PERMITTING THE PROSECUTION TO PRESENT APPELLANT’S STATEMENT ON REBUTTAL BECAUSE IT WAS NEITHER RESPONSIVE TO, NOR MADE NECESSARY BY, APPELLANT’S DEFENSE .. 0...cece cece nee eeee, 79 A. The Evidence of Appellant’s Statement Was Improper Rebuttal 2.0ceceeee, 79 1. Appellant’s statement that he had seen news coverage ofthe killings at The Office ........... 80 2. Appellant’s statement that he was at The Office on the night ofthe crime ...................... 81 Appellant’s statement that he was driving Jerri Baker’s Ford Probe on the night of the murders ... 84 G o 4. Appellant’s statement regarding the clothes and the blood on the clothes ...........000000.00.. 85 B. Reversal Is Required ....... 0000.00. 88 THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO TRIAL BY AN IMPARTIAL JURY BY RESTRICTING DEFENSE COUNSEL’S VOIR DIRE ABOUT SPECIFIC MITIGATING FACTORS ........0.000 0000 ccc cece eee, 90 TABLE OF CONTENTS © page A. The Trial Court Improperly Restricted Defense Counsel’s Voir Dire on Mitigation, Resulting in Inadequate Voir Dire and a Potentially Biased Jury ...... 91 1. Thetrial court mistakenly found that defense counsel’s voir dire questions aboutspecific mitigating factors did not reveal hidden bias ...... 91. 2. The trial court mistakenly found that defense counsel’s voir dire questions about poverty and abuse were misleading and asked prospective jurors to prejudge the facts ....-..--- ee ee ee eees 95 3, Respondentdoes noteffectively distinguish the cases on which appellantrelies or effectively counter his arguments .......--.-.+4+6- ewe 97 B. The Trial Court’s Error in Restricting Voir Dire On Specific Mitigating Factors Requires Reversal ......... 101 x THE RESTITUTION FINE MUSTBESET ASIDE BECAUSE OF INSUFFICIENT EVIDENCE OF APPELLANT’S ABILITY TO PAY ........--0 eee eens 103 A. Appellant’s Claim Is Properly Before this Court Because No Trial Objection Is Required for a Claim That the Evidence WasInsufficient to EstablishHis Ability to Pay 2... 6... te 103 B. The Evidence Was Insufficient to Support the Trial Court’s Implied Finding of Ability to Pay ..........--. 110 C, Conclusion ........ 2... ee eee eeeeee eee 112 CONCLUSION 2.0.0. c ccceeetne eens 113 CERTIFICATE OF COUNSEL ....... 0.50. e bebe eee 114 vi TABLE OF AUTHORITIES page(s) FEDERAL CASES Anderson v. Smith (1984) 751 F.2d atp.105 20.ccccece cece, 10 Anderson v. Terhune (9" Cir. 2008) 516 F.3d 781...ccc cece eee ee. 10 Arnold v. Runnels (9Cir. 2005) 421 F.3d 8592.cece eee cee. 14 Berghuis v. Thompkins (2010) 560 U.S. 37020ccc ccc cece eee. 5, 15, 16 Bram v. United States (1987) 168 U.S. 532.ccccece cece cece, 21 Brown v. Mississippi (1936) 297 U.S. 278 2.cccccc eee cc ccc eee. 18 California Attorneysfor Criminal Justice v. Butts (9" Cir. 1999) 195 F.3d 1039 20.ccc cee cece en. 27 Chapman vy. California (1967) 367 US. 182.eeee eee ee ess. 31, 37, 101 Connecticut v. Barrett (1987) 479 U.S. 5230cccccc cece e cece eee. 9 Cooper v. Dupnik (9" Cir. 1992) 963 F.2d 1220... 0.ccc cece cece ee. 27 Davis v. United States (1994) 512 US. 4520.ccccece cece eee. 7,9 Dickerson v. United States (2000) 530 U.S. 428 000eee:eee eee eee eae 18 vil TABLE OF AUTHORITIES page(s) Eddings v. Oklahoma (1982) 455 U.S. 104 0...ene94 Fahy v. Connecticut (1963) 375 US. 85 00.cccete35, 36 Henry v. Kernan (9" Cir. 1999) 197 F.3d 1021 2... eeeeens 27 Michigan v. Harvey (1990) 494 US. 344.12. o oo one eeeere ener ener eens beens 17 Michigan v. Mosley (1975) 423 US. 96 0...eeetne 6, 15,17 Michigan v. Tucker (1974) 417 ULS. 433 2.0eetees 27, 29 Miranda v. Arizona (1966) 384 U.S. 436...eeeeee passim Missouri v. Seibert (2004) 542 U.S. 600 20...eeeees 18, 27, 28, 29 Moran v. Burbine (1986) 475 U.S. 412 2...eeetenes 16 Nix v. Williams (1984) 467 U.S. 431 0... c ettenes 31 North Carolina v. Butler (1979) 441 U.S. 369 0...etene 15,17 Oregon v. Elstad (1985) 470 U.S. 298 0.0.eeete29 vill TABLE OF AUTHORITIES page(s) Schneckloth v. Bustamante (1973) 412 U.S.218ccc ccc ccc cece eee, 18 Smith v. Illinois (1984) 469 U.S.91cece cece eee. 6, 13, 14 Sullivan v. Louisiana (1993) 508 U.S. 275 20ccc cece cece ee ee. 37, 43 Terrovona v. Kincheloe (9" Cir. 1990) 912 F.2d.11762.ccc cece cee. 14 United States v. Lopez-Diaz (9" Cir. 1980) 630 F.2d 661... 00.00ccc eee. 10, 16 United States v. Patane (2004) 542 U.S. 630 20ccccece cece cece. 19, 29 United States v. Ramirez-Sandoval (9" Cir. 1989) 872 F.2d 1392 20.ccc cece cee. 31 Whren v. United States (1996) 517 ULS. 806 0ccccece eee eee. 27 STATE CASES Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 20cece cc cece ee. 107 Creutz v. Superior Court (1996) 49 Cal.App.4th 822 20ccc cece cece ee. 61 In re Cox (2003) 30 Cal.4th 97400ccc cece cece. 83-84 In re Gregory A. (2005) 126 Cal.App.4th 1554 20cecece cee ee. 107 ix TABLE OF AUTHORITIES page(s) Inve KF. (2009) 173 Cal.App.4th 655 2.6...eeeees 107 In re Lucas (2004) 33 Cal.4th 682 2.0... cc cece eee eee tee teens 94 In re Sassounian (1995) 9 Cab.4th 535 0.eeeeete tenes 84 People v. Ashmus (1991) 54 Cal.3d 932 ........Leeeee eee eee 11 People v. Balcom (1994) 7 Cal.4th 414 20...eeeee passim People v. Barnett (1998) 17 Cal.4th 1044 20...eeene 109 People v. Bean (1988) 46 Cal.3d 919 2... ceceeee45 People v. Bey (1993) 21 Cal.App.4th 1623 2.0... eee etenes 19 People v. Bigelow (1984) 37 Cal.3d 731...eceens56 People v. Bradford (2008) 169 Cal.App.4th 843 2.0... ceenee84 People v. Butler (2003) 31 Cal.4th 1119 ....... Loc cece eee nee eee 104, 106, 107 People v. Butler (2009) 46 Cal.4th 847 2.0... ceceeetees 97 TABLE OF AUTHORITIES page(s) People v. Carter (1957) 48 Cal.2d 737 2...ccc cece cece eeee passim People v. Cash (2002) 28 Cal.4th 703 22... passim People v. Catlin (2001) 26 Cal.4th 81 0.cececece eeey 35 People v. Christiana (2010) 190 Cal-App.4th 1040 2.00.eee 107 People v. Clark (1992) 3 Cal.4th 41 occeee 11,12 People v. Coffman (2004) 34 Cal4thoo.eae,20, 80, 88 People v. Crew (2003) 31 Cal.4th 822 20ccceee 88 People v. Crittle (2007) 154 CalApp.4th 368 20.eerence 108 People v. Cruz (2008) 44 Cal.4th 636 20002cece cee eecenes 64, 65 People v. Cunningham (2001) 25 Cal.4th 926 2...ccccece es 101, 102 People v. Daniels (1991) 52 Cal.3d 815 2.0.eee55, 81 People v. Davis (1981) 29 Cal.3d 8142cececee c cece 1] Xl TABLE OF AUTHORITIES page(s) People v. Davis (2009) 46 Cal.4th 539 22...eeeettes 71 People v. De La Plane . (1979) 88 Cal.App.3d 223 ......eneeee eens 55 People v. Ervin (2000) 22 Cal4th 48 0...eeeeee tees 99 People v. Ewoldt (1994) 7 Cal.4th 380 2...eeetees passim People v. Frye . (1994) 21 Cal.App.4th 1483 2.0.0... eee eee eeeee 103 People v. Gamache (2009) 46 Cal.4th 680 ......... 0. eee eee eeere 108 People v. Gibson (1994) 27 Cal.App.4th 1466 ..... 2... ee eee eee eee 105, 106, 108 People v. Guerra. (2006) 37 Cal.4th 1067 20.6... eee eeeteteee 19, 20 People v. Hennessey (1995) 37 Cal.App.4th 1830 ©... 6.6eeeeee tees 108 People v. Hill (1992) 3 Cal.4th 959 2.eee1 People v. Jablonski (2006) 37 Cal.4th 774 2.0... ceceteen e tenes 20 People v. Karis (1988) 46 Cal.3d 612 20.0... eeeeteees passim xil TABLE OF AUTHORITIES page(s) People v. Lang (1989) 49 Cal.3d991 20cee61, 65, 66, 67 People v. Lee (2011) 51 Cal.4th 620 20.cccccc cece ee. 35 People v. Lew (1968) 68 Cal.2d 77420cccc cc cece eee 68 People v. Livaditis (1992) 2 Cal.4th 759occcece cece. 99 People v. Lopez (2005) 129 Cal.App.4th 1508 2...cece cece. 107 People v. Martinez 47 Cal.4th 911occcece cece, 8, 12 People v. Maury (2003) 30 Cal.4th 342 00ccccence eee. 35 People v. McCullough (2013) 56 Cal.4th 589 222.eee enna ee 104, 105 People v. McGhee (1988) 197 Cal.App.3d 710 20...ccc cee cece. 109 People v. Montano (1991) 226 Cal.App.3d 914 20...cece cece eee. 19 People v. Morrison (2004) 34 Cal.4th 698 20ccceee eee. 62 People v. Mosher (1969) 1 Cal.3d 379occcece cece cee ee. 81 Xiil sop w e f L E S Bt V e O T R a I! oe o e 2 TABLE OF AUTHORITIES page(s) People v. Neal (2003) 31 Cal.4th 63 2.0... cee eeeeee ees 19, 27 People v. Nelson (2011) 51 Cal.4th 198 0...eeeeens 109 People v. Nelson (2012) 53 Cal.4th 367 ©... 6. eee eee ee eee eee eens 7 People v. Noguera (1992) 4 Cal.4th 599 6... eeeeeeees 97, 98 People v. Page (2008) 44 Cal.4th 1.0...eteentrees 33 People v. Peracchi . (2001) 86 CalApp.4th 353 2.6... eee eee eee eee ee 8, 10, 12 People v. Pinholster (1992) 1 Cal.4th 865 2.0...eteene 99 People v. Robinson (1960) 179 Cal.App.2d 624 «2.00... cece eeeeens 83 People v. Rodriguez (1986) 42 Cal.3d 730 2.2... cece ee eee eens - passim People v. Scheer (1998) 58 Cal.App.4th 1009 2.0... eeeeeeeee 55 People v. Scott (1978) 21 Cal.3d 284.0... cece eeeeee ees-. 107, 108 People v. Silva (1988) 45 Cal.3d 604 2.0... e eeteens 1] XIV TABLE OF AUTHORITIES page(s) People v. Smith (1987) 188 Cal.App.3d 1495 200.cece cece. 33 People v. Spector (2011) 194 Cal.App.4th 1335 20.ecece eee. 70 People v. Tate (2010) 49 Cal. 4"635cece ccc cee ee ee 96, 98 People v. Thompson (1980) 27 Cal.3d 303 2.ccccee. 45, 54 People v. Thompson (1988) 45 Cal.3d 109 00eeeeee. 47, 61, 65, 66 People v. Valtakis (2003) 105 Cal.App.4th 1066 20...ccc cece eee 108 People v. Viray (2005) 134 Cal.App.4th 1186 20...ccc cece eee 107 People v. Williams (2010) 49 Cal.4th 405 ooee. 12, 15-16, 20 People v. Woodell (1998) 17 Cal.4th 448 |...eee ee eeeeee tee eens 62 People v. Young (2005) 34 Cal.4th 11492ccece ee, 87, 88 CONSTITUTIONS U.S. Const. amends. 2 6...ccc cece cece eee, 90 14ceeeen 90 Cal. Const., art. I, §§ Lscece eee eee 90 16o ee 90 XV TABLE OF AUTHORITIES page(s) STATUTUES Evid. Code §§ LOLoceee eee 59 1101, subd. (b) oo... eee ee eee eee 71,72 L108 oo.ceeee eee 71 1220 .iceeens 61, 62 1250.eceee 61, 62, 71 Gov. Code §§ 13967ooee 103, 105 68662 .ocette 107 Pen. Code §§ 2933.2 Liceteens lil 1202.1. ccceee ees 104 1202.4... ceceeee 105, 109 190.3, factor (a)...eee eee 97 190.3, factor (kK)... . 0. ee ce eee 90, 94 JURY INSTRUCTIONS CALJIC Nos. B20 Loeeee eee ees 53 BBQeee93, 94 TEXT AND OTHER AUTHORITIES O’Neill, California Confessions Law 2012-2013, § 1.43, p.60......cece eee ene teen eee eee 18 Stats. 1994, c. 1106 (A.B. 3169) § 3, eff. Sept. 29,1994 2.6... eee eee eee eens 109 Weisselberg, Saving Miranda 84 Cornell L. Rev. 109 00...eeee eee 27 Weisselberg, In the Stationhouse After Dickerson (2001) 99 Mich. LRev. 1121.0... 00 ccc eee ee eee eee 27 Xvi TABLE OF AUTHORITIES page(s) TEXT AND OTHER AUTHORITIES CONT’D LA Wigmore, Evidence (Tillers rev. ed. 1983) § 102, p. 1666 0...ceceeee ee 49 2 Wigmore, Evidence (Chadbourn rev. ed. 1979) § 302, p.24] 2...ceceeee 53 http://sojo.net/magazine/20 12/09/ending-death-penalty [“Death row prisonersare generally not allowed to work”] ..... 11] http://www.californiapeopleoffaith.org/woodford-interview.html [“death row inmatesare not allowed to work in prison”]........ 111 XV1i No. 057156 IN THE SUPREMECOURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. (Sacramento County Superior Court No. CHARLES EDWARD CASE, 93F05175) Defendant and Appellant. APPELLANT’S REPLY BRIEF INTRODUCTION In this reply to respondent’s brief on direct appeal, appellant replies to contentions by respondent that necessitate an answerin order to present the issues fully to this Court. Appellant does not reply to arguments that are adequately addressed in his opening brief. In particular, appellant does not present a reply to Arguments VIII and IX. The absenceof a reply to any particular argument, sub-argumentor allegation madeby respondent, or of a reassertion of any particular point madein the openingbrief, does not constitute a concession, abandonmentor waiver of the point by appellant (see People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3), but reflects his view that the issue has been adequately presented and the positions of the parties fully joined. The arguments in this reply are numbered to correspondto the argument numbers in Appellant’s Opening Brief.' / /I // ' All statutory references are to the Penal Code unlessstated - otherwise. The following abbreviations are used herein: “AOB”refers to appellant’s openingbrief; “RB”refers to respondent’s brief. As in the openingbrief, citations to the record are abbreviated as follows: “CT”is used to refer to the clerk’s transcript on appeal, “Aug CT”is usedto refer to the augmented clerk’s transcript and “RT”is used to refer to the reporter’s | transcript. “Exh.”is used to refer to exhibits introducedat trial. For each citation, the volume numberprecedes, and the page numberfollows, the transcript designation, e.g. 1 CT 1-3, is the first volumeto the clerk’s transcript at pages 1-3. I APPELLANT’S STATEMENT WAS MIRANDA-VIOLATIVE, INVOLUNTARY, AND OBTAINED BY DELIBERATELY IGNORING APPELLANT’S INVOCATIONOF THE RIGHT TO REMAINSILENT, AND THE ADMISSION INTO EVIDENCE OF THE STATEMENT AND THE EVIDENCE ACQUIRED AS A RESULT OF THE STATEMENT WAS PREJUDICIAL ERROR A. Introduction Appellant had just been arrested and transportedto the police station when he wasinterrogated by homicide detectives Reed and Edwards. The essential facts of the interrogation are these: detective Reed told appellant that he and Edwards were investigating the double robbery-murder that had occurred the previous night, that a lady had given them some bloody clothes and told them where she had gotten them,andthat as a result, they had cometo talk to appellant. Reed advised appellant of his rights pursuantto Mirandav. Arizona (1966) 384 U.S. 436 and then asked, “having those rights in mind, will you talk to me now?” Appellant responded, “No, not about a robbery-murder. Jesus Christ.” (Exh. 5 [videotape of interrogation]; Aug CT of 11/10/09 Appendix A, pp. 1-2 [transcription of videotape].") Nevertheless, the officers continued with the interrogation, initially asking several pretextual questions regarding appellant’s living situation, but quickly turning to questions concerning appellant’s whereabouts andactions on the night of the robbery murder. As a result of 2 As stated in the openingbrief, the transcription in the record indicates that appellant’s answer was “(Unintelligible) robbery-murder. Jesus Christ” (Aug CT of 11/10/09 Appendix A, pp. 1-2), but on the videotapeofthe interrogation (Exh. 5), appellant’s answer is easily heard, and Detective Reed, the trial court and the prosecutorall recognized that it was as stated here. (1 RT 1155 [prosecutor], 1226-1227 [Detective Reed], 1232 [prosecutor]; 11 RT 4067[trial court]; see AOB 56-57, fn. 15.) 3 Reed’s persistent questioning after appellant clearly stated he did not want to talk about a robbery-murder, appellant made admissions that were introduced against him as alleged rebuttal evidence, and police discovered Sue Burlingame, Stacey Billingsley and Greg Billingsley, whotestified against appellant attrial. Asset forth in the opening brief, appellant’s statement was inadmissible because it was obtained in violation ofMiranda (AOB 66-79) and wasthe product of psychological coercion and thus involuntary (AOB 79-83); the testimony of Burlingameandthe Billingsleys should have been suppressed because it was derived from a policestrategy of deliberately ignoring appellant’s invocation ofhis right toremain silentin order to circumvent Miranda (AOB 68-70, 84-92) and would not have inevitably been discovered (AOB 92-96); and the unconstitutional admission of appellant’s statement was not harmless beyond a reasonable doubt (AOB 96-120). Respondentagreesthat appellant invokedhis right to remain silent under Miranda, but contendsthat the continuedpolice questioning was outside the scope of appellant’s invocation. (RB 59-63.) Respondentalso implies, but does not directly argue, that appellant waived his rightto remainsilent (RB 62), andasserts that appellant’s statement was voluntary (RB 64-67). In addition, while disputingthat the testimony of Burlingame andthe Billingsleys should have been suppressed, respondentcontendsthat the officers did not deliberately violate appellant’s invocation ofhis right to remain silent (RB 68-71), and that the evidence would have been inevitably discovered (RB 71-73). Notably, other than asserting there was no deliberate Miranda violation, respondent offers no answerto appellant’s claim that this Court should craft a remedy excluding from a suspect’s trial 4 evidencethat is derived from a calculated and deliberate police strategy of ignoring the suspect’s invocation ofhis Miranda rights. (See RB 71, fn. 60.) Finally, respondent contendsthat admission of appellant’s statement was not prejudicial. (RB 73-78.) As shown below, none of respondent’ s contentions has merit, and they all should be rejected. B. Whether Appellant’s Invocation of the Right to Remain Silent Is Viewed as Complete or Partial, the Officers Failed to HonorIt, and Appellant Did Not Implicitly or Expressly Waive His Rights The basic legal principles governing appellant’s Mirandaclaim are set forth in the opening brief. (AOB 66-68.) It bears repeating, however, that a fundamental aspect of Miranda’s protections against coercive interrogationsis the right to cut off questioning. (Miranda v. Arizona, supra, 384 U.S. at p. 474.) A suspect who has been advised of his Miranda rights need only make a “simple, unambiguous statement[]” that he wants to remain silent or does not wantto talk with the police to invokehisrightto remain silent and the “‘“right to cut off questioning.””” (Berghuisv. Thompkins (2010) 560 U.S. 370, 130 S.Ct. 2250, 2260, citations omitted.) Whenthesuspect invokesthe right to remainsilent, “further interrogation must cease.” (id. at pp. 2263-2264.) Even in the absenceof an effective invocation ofrights, “the accused’s statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused ‘in fact knowingly and voluntarily waived [Miranda]rights’ when making the statement.” (Berghuis v. Thompkins, supra, 130 8.Ct.at p. 2260, citation omitted.) The governmentbears the “heavy burden” of demonstrating waiver. (/d. at p. 2261, citation omitted.) Respondent discusses whether a suspect has invoked his Miranda rights and whether he has waived them as if they were one question. (See RB 57-62.) “Invocation and waiverare entirely distinct inquiries, and the two must notbe blurred by merging them together.” (Smith v. Illinois (1984) 469 U.S. 91, 98.) Appellant will examine the two issues separately. Appellant’s emphatic refusal to answer the interrogating officers’ questions was an unambiguous, unequivocal and unconditioned invocation of the right to remain silent, and no reasonable officer would have understoodit to permit continued questioning, particularly on the subject of appellant’s actions on the nightof the charged crime. In interrogating appellant, the officers failed to “scrupulously honor” appellant’s invocation, and his statementis therefore inadmissible. (Michigan v. Mosley (1975) 423 U.S. 96, 104.) Further, the evidence showsthat appellant neither expressly nor implicitly waived his rights. His statement was obtained in violation of Miranda and wasinadmissible. 1. No reasonableofficer would have understood appellant’s refusal to talk about the crime underinvestigation as anything other than an unequivocal invocation of the right to remain silent Whenadvised ofhis rights and asked if he would waive them, appellant’s answer, “No, not about a robbery-murder. Jesus Christ,” was a clear invocation ofhis right not to speak with the interrogating officers. Respondent concedesthat appellant unambiguously and unequivocally invoked his right to remain silent. (RB 59.) The point of contention is the scope of his invocation. In appellant’s view, whetherconsidered a complete or partial invocation, at the very outset of the interrogation, he asserted his right to remain silent as to the sole subject of the interrogation ~ the robbery-murder ofthe previous night. (AOB 68-73.) In respondent’s view,appellant’s refusal to discuss the robbery-murders “ampunted toa limited invocation of his right to remain silent as to the details of the crime” (RB 59) which, when considered with his statements after his invocation, did not preclude continued questioning of appellant about his whereabouts and actions on the night ofthat crime (RB 62-63). Respondent’s position is untenable. a. Any reasonable officer would have understood appellant’s statement, “No. Not about a robbery murder. Jesus Christ,” as a blanket refusal to talk about anything having to do with that crime Respondentoffers no reasonable, credible explanation of how detective Reed misunderstood the plain meaning of appellant’s statement to his invitation to waive his Miranda rights. The standard for judging a suspect’s invocation of his Mirandarights is an objective one, which looks to what “a reasonableofficer in light of the circumstances would have understood.” (Davis v. United States (1994) 512 U.S. 452, 458-459 [discussing the standard for an invocation ofthe right to counsel]; People v. Nelson (2012) 53 Cal.4th 367, 379 [applying the Davis standard to an invocation of the right to remain silent].) Appellant’s adamant declaration was made at the very beginningofthe interrogation, before the officers had begun asking questions. It was his answer to detective Reed’s question, asked immediately after reciting the Miranda admonitions, “having those rights in mind, will you talk to me now?” (1 RT 1226-1227; Exh.5.) Appellant had never previously agreedto talk, and therefore his answer could not be construedas a refusal to discuss a subset of the possible topics of interrogation. Nor did his answeritself imply any willingness to waive his right to remain silent on subjects other than the robbery-murderor to 7 discuss his whereabouts and actions on the night of the crime. Rather, the officers’ continued questioning wasa failure to heed appellant’s unequivocal and unambiguousrefusal to waive his right to silence. (See People v. Martinez 47 Cal.4th 911, 952 [finding that in People v. Peracchi (2001) 86 Cal.App.4th 353, officers failed to heed suspect’s “clear refusal to waive his rightto silence” by continuing to interrogate after suspect said “I don’t want to discussit right now’” immediately after a Miranda advisement].) No reasonable officer would have viewed appellant’s statement as anything other than a clear refusal to waive the right to remain silent and a full invocation of that right. Detective Reed’s admitted general practice of ignoring Miranda invocations in orderto obtain incriminating statements (see 2 RT 1254) further undercuts any suggestion that it was objectively reasonable for him to believe that appellant’s statement nevertheless permitted him to continue with the interrogation. b. Even if viewed as a partialinvocation, the plain meaning of appellant’s refusal to talk about the robbery- murderincluded the very topics that the officers continued to probe As shown in the openingbrief, even if appellant’s refusal to waive his rightsis viewed asa selective invocation ofhis right to remain silent, the interrogation was unlawful because the officers’ questions concerned the very subject that appellant had refused to discuss, namely, the robbery- murders. (AOB 71-73.) Respondent contendsthat appellant construes the term “robbery-murder” too broadly. (RB 63.) According to respondent, asking appellant about his whereabouts on the night of the robbery-murder “is not the same as discussing the actual details of the crimes,” and, because an alibi consists of evidence that the defendant was not at the scene of the crime, asking aboutalibi is not asking about the crime itself. (RB 63 .) Respondent’s argument defies commonsense. | Appellant’s wordsare to be “understoodas ordinary people would understand them.” (Connecticut v. Barrett (1987) 479 U.S. 523, 529.) Ordinary people do not parse words in the fashion that respondent proposes. Ordinary people would understand a suspect's refusal to discuss a particular crime as a refusal to discuss anythingrelated to that crime, including whetheror not the suspect had any defensesto that crime such asalibi. Respondent’s approach would require an exceedingly precise and multifacetedinvocation in order to effectively cut off questioning regardi ng all subjects related to a particular crime. Respondent points to no support for such an approach,andin fact, the high court has made clear that no su ch precision is required, stating that a suspect need not “speak with the discrimination of an Oxford Don”to invokehis rights. (Davis v. United States, supra, 512 U.S. at p. 459.) | Detective Reed asked appellant not only where he had been on the night of the robbery-murder,but also numerous other questions about appellant’s actions that night, including whom he was with, whether he w as aware that the crime had occurred, whattime he arrived at The Offi ce, what time he left, who else was there, whether the bartender had rung ou t the till, whether he knew the bartender, which door he went through whenhe left, where he was parked, what kind of car he was driving, whether appellant’s fingerprints would be on the cash register or in the women’s bathroom, how much hehad to drink, whether he would remember if he killed som eone, where he went after leaving The Office, whether he went to Mary Webster’s house, whether he could explain the bloody clothes and boots that Webster had turned in and whether the gun at Webster’s house was his. 9 (Aug CT of 11/10/09 Appendix A, pp. 4-15.) Reed then accused appellant of being the killer. (/d. at p. 17.) No ordinary person would doubtthat appellant’s refusal to discuss a robbery-murder includeda refusalto discuss these subjects, and no reasonable police officer would believe that these questions were outside the scope of appellant's invocation. Further, as discussedin the opening brief (AOB 71-73), the officers’ questions were clearly “aimedateliciting incriminating statements concerning the very subject on which [he had] invoked his right.” (United States v. Lopez-Diaz (9" Cir. 1980) 630 F.2d 661, 665 [question was reasonablylikely to elicit an incriminating response on subject defendant had refused to discuss and therefore wasa failure to honor the partial invocation]; see also Anderson v. Terhune (9* Cir. 2008) 516 F.3d 781, 789 [asking defendant what he meantby “I plead the Fifth” was reasonably likely to elicit an incriminating response and therefore was a failure to honorselective invocation].) Indeed, at the in limine hearing regarding the interrogation, Reed repeatedly admitted that the purposeofthe interrogation was to elicit incriminating statements about the robbery-murder. (See, e.g., 1 RT 1247; 2 RT 1251.) “An interrogator would only want to probe beyond the suspect’s presumed desire to avoid self-incrimination if he expected either to evoke an incriminating response orto get a clue as to how the suspect might be persuaded to abandonhisrights.” (People v. Peracchi, supra, 86 Cal.App.4th at p. 363, quoting Anderson v. Smith (1984) 751 F.2d at p. 105.) Evenif consideredasa partial invocation under Miranda,the detectives failed to honor — and instead charged right passed — appellant’s clear refusal to talk about the robbery-murders. 10 c. The cases on which respondentrelies do not support its position Respondent’s extensive discussion of People v. Silva (1988) 45 Cal.3d 604, People v. Ashmus (1991) 54 Cal.3d 932 and People v. Clark (1992) 3 Cal.4th 41, which thetrial court found to be controlling, does not answer appellant’s argument. As set forth in appellant’s opening brief, _ those three decisions are inapposite because the defendant in each case had expressly waived his Miranda rights and willingly answered questions about the crime underinvestigation andlater refused to answera particular question posed during the course of the interrogation. (AOB 73-76.) Respondent’s reliance on People v. Davis (1981) 29 Cal.3d 814 (RB 61) is misplaced for much the same reason. The defendant in Davis expressly waived his Miranda rights and answered the officers’ questions for an hour before the events that this Court found constituted a refusal to take a polygraph examination, but not an assertion of the right to remainsilent. (Id. at pp. 823-825.) The defendant had not expressed any unwillingness to answer questionsprior to his resistance to the polygraph procedure. Because in Silva, Clark, Ashmus and Davis, each defendant had agreed to talk and answered questions about the respective crimes under investigation prior to the potential invocation, this Court could reasonably conclude that he wasrefusing to answer questions only on a particular topic or, as in Davis, from a particular questioner, but he was not refusing to continue answering all questions. The continued questioning on other topics (or as in Davis, by a different interrogator) was therefore not a failure to honor a suspect’s invocation of the right to remainsilent. By contrast, appellant had not previously agreedto talk to the officers, waived his rights or answered | any questions prior to his invocation, and therefore, the continuing 11 interrogation by the detectives violated appellant’s Miranda rights. (AOB 76.) Respondentasserts that appellant’s analysis presents a “distinction without a difference” (RB 62), but offers no explanation to support that assertion.’ As this Court has observed, the distinction makes a significant difference. In People v. Martinez, supra, 47 Cal.4th 911, the Court made precisely this point — that the question of whethera suspect has waivedhis rights before the commencementofan interrogationis to be distinguished from whetherhe invokedhis rights after a valid waiver. (id. at p. 951.) In Martinez, in the middleofa series of interrogation sessions, the defendant stated, “I don’t want to talk anymore right now.” On appeal, he argued that this statement was an invocation ofthe right to remainsilent, pointing to People v. Peracchi, supra, 86 Cal.App.4th 353, at p. 361, in which the court of appeal found the statement “I don’t wantto discussit right now”to constitute an invocation. The Martinez Court distinguished Peracchi because the defendantin the latter case had madethe statementat the outset of the interrogation, in response to a Miranda advisement, thereby “making clear he did not wish to waive hisrightto silence at that time.” (People v. Martinez, supra, 47 Cal.4th at p. 951.) The statementatissue in Martinez, by contrast, was made in the middle of the interrogation. The Martinez Court found that further questioningtherefore did not “amountto a failure ‘to heed a suspect’s clear refusal to waivehis right to silence.” ([bid.; see also People v. Williams (2010) 49 Cal.4th 405, 427 [because suspect had expressly waivedright to remainsilent, subsequent remarks when askedif > Respondent summarizes a discussion in People v. Clark, supra, 3 Cal.4th at pp. 629-630 thatis oflittle or no relevanceto the issue at hand, and fails to summarize the holding on whichthetrial court relied. (RB 60.) 12 he would give up the right to an attorney were not a clear invocation of the right to counsel].) The same cannotbe said here, where appellant’ s invocation was stated before the interrogation began, in answerto th e question whether he would waivehis Miranda rights, and he emphatic ally said “no.” | d. Respondent’s reliance on appellant’s statements after the invocationis improper Respondent appearsto rely on appellant’s answersto questions posed after his invocation as showing that the invocation waspartial r ather than complete. Respondent asserts that “appellant neither gave any indication that he wanted the detectives to cease their questioning nortol d detectives that he no longer wished to speak to them.” (RB 62.) Respondent’s assertion is based on an improper andirrelevant consideration. Whether a defendant’s statement constitutes an invocation is judged at the time the statement is made. “An accused’s postrequest responsest o further interrogation may not be usedto cast retrospective doubt on the clarity of the initial request itself.” (Smith v. Illinois, supra, 469 U.S. at p. 100 [it is impermissible to find ambiguity in an invocation by looking to defendant’s subsequent responsesto continued police questioning].) Th e interrogator cannot proceed “‘on his own terms and asif the defendant h ad ‘requested nothing, in the hope that the defendant might be induced to s aying something casting retrospective doubt on the clarity ofhis initial statem ent.” (Id. at p. 99.) Furthermore, as a matter oflogic, the fact that appellant answered the questions posed after he had invoked his rights does not lead to the inference that he was willing to talk. On the contrary, the officers’ 13 persistent questioningafter his definitive “No, not about a robbery-murder. Jesus Christ” response could well haveindicated to appellant that he had no choice but to answerthe officers’ questions. (See Arnold v. Runnels (9% Cir. 2005) 421 F.3d 859, 867 [whereofficers tape-recorded defendant’s interrogation in spite of his refusal to be tape-recorded, the officers’ action implied that he had norightto refuseto talk on tape].) Appellant’s answers to the improperly continued questioning cannot be used to cast doubt on the clarity of his invocation, and nothing about appellant’s invocation or the events leading up to it indicate that appellant’s refusal to talk was anything other than absolute. Respondent’s citation to Terrovona v. Kincheloe (9" Cir. 1990) 912 F.2d 1176, does not advance its argument. (See RB 62.) Terrovona is inapposite, as there was absolutely noindication there of any invocation, partial or otherwise. After being advised of his Miranda rights, the defendant answeredtheofficers’ questions regarding his whereabouts on the previous night. The court found an implicit waiverofthe right to remain silent. However, “Terrovona gavethe detectives no indication that he wished to remainsilent.” (Terrovona v. Kincheloe, supra, 912 F.2d at p. 1180.) Although it may be permissible to infer waiver where the defendant says nothingafter being advised ofhis rights and proceeds to answerthe interrogating officers’ questions, no such inference can be drawn here, where appellant unambiguously replied “no” when asked if he would waive his rights. Under Smith v. Illinois, supra, 469 U.S. at p. 99,the fact that appellant subsequently answered the officers’ questions does not diminish the clarity of his invocation. In sum, respondentfails to show that appellant’s refusal to talk about the robbery-murders, the only crimes being investigated, was anything other 14 than unequivocal, unambiguous, unconditional and unqualified. The authorities on which respondentrelies are inapposite, and respondent’s proposed analysis is contrary to well-established Supreme Court precedent. Respondentpoints to nothing aboutappellant's refusal to talk that suggests there were subjects other than the robbery-murderthat he was willing to discuss. He clearly intended to refuse to waive his rights and invokehis right to remain silent, and any reasonable officer would have recognized that. The critical safeguard of Miranda is that interrogation immediately cease upon invocation, and the admissibility of statements obtained thereafter depends on whether the “right to cut off questioning” has been “scrupulously honored.” (Michigan v. Mosley, supra, 423 U.S. at p. 104.) Here, the detectives did not honorthe invocation at all. 2. Appellant neither expressly norimplicitly waived his right to remain silent Even assuming arguendothatthe Court finds no effective invocation or no failure to honor a partial invocation, appellant’s statement was nevertheless taken in violation of Miranda because the prosecution cannot show that appellant waived the right to remainsilent. As the high court has repeatedly held, “[t]he accused’s statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused ‘in fact knowingly and voluntarily waived [Miranda] rights’ when making the statement.” (Berghuis v. Thompkins, supra, 130 S.Ct. at p. 2260, quoting North Carolina v. Butler (1979) 441 U.S. 369, 373.) There is a threshold presumption against finding a waiver of Miranda rights, and the burdenis on the prosecution to establish that waiver in fact occurred. (Miranda v. Arizona, supra, 384 U.S. at p. 475; People v. Williams, supra, 49 Cal.4th at p. 425.) Whether there has been a waiver of rights is viewed 15 subjectively, from “the state of mind of the personundergoing interrogation, rather than thestate of mind ofthe interrogator.” (Moranv. Burbine (1986) 475 U.S. 412, 421-422.) Appellant never waived his Miranda rights expressly. In asking appellant, “[hJaving those rights in mind, will you talk to me now?” (Aug CT of 11/10/09 Appendix A, pp. 1-2; 1 RT 1226: 21 RT 7260-7261; Exh. 5 [videotape of interrogation]), detective Reed was asking appellant if he would waivehis rights. Appellant’s answer, “No, not about a robbery murder. Jesus Christ,” was an affirmative refusal to waive. Appellant had not previously waived his rights, answered any questions or expressed any willingnessto talk to the detectives. Theofficers had not indicatedthat they had any othersubject to discuss. There was nothing about appellant’s wordsthat indicated a willingness to discuss other subjects. (Cf., e.g., United States v. Lopez-Diaz, supra, 630 F.2d at pp. 663-665 [defendant refusedto talk about the drugs in the van, but agreed to talk about other illegal activity].) Like his exclamation, “Jesus Christ,” his reference to the robbery-murder wasplainly for emphasis. There can be no doubtthat appellant’s subjective intent was to refuse to waivehis right to remain silent, and no reasonablepolice officer could have understood appellant’s statement as anything other than an unqualified refusalto talk. Respondent seemsto suggest, but never plainly asserts, that appellant implicitly waived his rights by answering the officers’ questionsafter his refusal to talk. (RB 62.) Any such argument is without merit. The high court has held that waiver “may be implied through ‘the defendant’s silence, coupled with an understandingofhis rights and a course of conduct indicating waiver.’” (Berghuis v. Thompkins, supra, 130 S.Ct. at p. 2261, quoting North Carolina v. Butler, supra, 441 US.at p. 373.) However, that 16 principle clearly does not apply where the defendant expressly states that he does not wantto talk. This is the essential teaching of Michigan v. Mosley, supra, 423 U.S. at pp. 103-106, which requires that questioning cease immediately when a suspect expressesa desire to remain silent and that it may not be resumeduntil the passage ofa significant period of time. This requirementis premised on the understanding that additional questioning immediately after an invocation is coercive (Miranda v. Arizona, supra, 384 US. at pp. 473-474), and prevents “police from badgering a defendant into waiving his previously asserted Miranda rights” (Michigan y Harvey (1990) 494 U.S. 344, 350). Indeed, in Mosley, the high court, finding that police honored the suspect’s right to cut off questioning, noted that when the suspect refusedto talk, the police there, unlike detectives Reed and Edwardsin this case, did not refuse to discontinue the interrogation or attempt to wear downthe suspect’s resistance and make him change his mind. (/d. at pp. 105-106.) If waiver could be inferred from the mere fact that appellant answered questions asked unlawfully after he had refused to speak and refused to waivehis right to remain silent, Miranda would be rendered a deadletter. Respondenthas not metits heavy burden ofproving waiver. | Cc. Appellant’s Statement WasInvoluntary In the openingbrief, appellant showedthat by ignoring appellant's invocation ofthe right to remain silent, implicitly threatening him with the death penalty if he did not provide an explanation for the murders and indicating that providing such an explanation would result in greater leniency, the interrogating officers succeeded in getting appellant to talk in spite of his emphatically stated desire not to do so. The detectives’ interrogation tactics were psychologically coercive, and appellant’s “will 17 was overborne’” (Dickerson v. United States (2000) 530 U.S. 428, 434, quoting Schneckloth v. Bustamante (1973) 412 U.S. 218, 216), and his statement was involuntary, in violation of the Fourteenth Amendment right to due process (Brown v. Mississippi (1936) 297 U.S. 278, 285-286). (AOB 79-83.) Respondent doesnot dispute that a violation ofMirandaraises a presumption of coercion,that deliberately continuing an interrogation after the suspect invokes his Miranda rights is a factor that weighs heavily in favor ofa finding of involuntariness, or that members ofthis Court have suggested that a deliberate Miranda violation may well be inherently coercive. (See authorities cited at AOB 80-81 andfn. 16; see also O’Neill, California Confessions Law, 2012-2013, § 1.43, p. 60 [after Missouri v. Seibert (2004) 542 U.S. 600, in which the high court condemned a deliberate “question first” practice designed to thwart Miranda’s protections, decisions holding that deliberate Miranda violations are not inherently coercive may no longer be valid.].) However, in respondent’s view, because appellant’s invocation was only partial and the ensuing interrogation was lawful, the only factor weighingin favorof a finding of involuntarinessis the officers’ thinly-veiled threat of the death penalty, which, respondent contends,is not enough to show involuntariness. (RB 66-67.) Respondent’s analysis is flawed and should be rejected. Of course, if respondent were correct that there was no Miranda violation, there would be no coercion associated with the detectives’ decision to ignore appellant’s “No, not a robbery-murder. Jesus Christ” response and forge ahead with the interrogation. But, as shown above, the continued questioning was Miranda-violative which, as a matter of law, raises a presumption of coercion. (United States v. Patane (2004) 542 U.S. 18 630, 639.) Further, as set forth in the opening brief (AOB 68-70, 91-92) and in subsection D.2., below, the detectives’ decision to continue the interrogation despite appellant’s invocation wasa tactic deliberately designed to thwart Miranda’ s protections. The deliberate violation of appellant’s Miranda rights arguably establishes perse coercion, and, at a minimum,is a factor weighing heavily in favor of a finding of involuntariness. (People v. Neal (2003) 31 Cal.4th 63, 81-82; see also People v. Montano (1991) 226 Cal.App.3d 914, 932; People v. Bey (1993) 21 Cal.App.4th 1623, 1628.) Respondentspeculates that appellant’s will was not overborne because he “wasno strangerto the interrogation process and attempted to use it to his advantage.” (RB 67.) Although respondenthad a criminal record, there is no evidence in the record that appellant had ever been interrogated in the past or that he was familiar with the interrogation process. Further, there is no indication that appellant was trying to use the interrogation to his advantage. Respondent’s citation to People v. Guerra (2006) 37 Cal.4th 1067 on this point is misguided because that decisionis not analogousto this case. (See RB 67.) In Guerra, the defendant voluntarily accompanied the detectives to the police station, expressly waived his rights and repeatedly expressed a willingness to cooperate before requesting an attorney. (Jd. at p. 1095.) When he requested counsel, the detective said he would haveto arrest him for murder and stop questioning him until counsel could be provided. The defendant responded that if that wasthe case, he did not want an attorney and wanted to continue speaking with the detectives. (/d. at pp. 1089-1090.) The Court found that the detective’s threat to arrest the defendant did not coerce his statement because the evidence showedthat the defendant wanted to be interviewed 19 so that he could clear himself of suspicion, and claimed he did not need an attorney because hedid not have “‘a problem.” (Id.at pp. 1096-1097.) By contrast, in this case, sheriff's department personnel ordered appellant out of Webster’s house, arrested him, put him in a car, transported him to the sheriff's department, put him in an interrogation room and handcuffed him to the table. (1 RT 1228, 1242-1244.) At the outset, appellant refused to talk to the officers; he never expressed any desire to be _ interviewed for any purpose, including to clear his name. Appellant was a parolee, and therefore he had virtually no chanceofbeingreleased from custody based on his own word. Thereis no indication that appellant had any hope or expectation of being able to talk his way out ofthe situation, Respondent’s assertion that appellant thought he could use the interrogation to his advantage is a general hypothesis potentially applicable to any suspect being interrogated but, as to appellant, is sheer speculation unsupported by the record. Respondent’s reliance on People v. Williams, supra, 49 Cal.4th 405 (RB 66-67) is misplaced, as there, the Court found that the defendant had voluntarily waived, and had not subsequently invoked, his Miranda rights. (Id. at p. 422.) Here, by contrast, the Miranda violation is clear, and the officers’ disregard of appellant’s clear and emphatic refusal to talk was coercive. People v. Jablonski (2006) 37 Cal.4th 774, and People v. Coffman (2004) 34 Cal.4th 1, on which respondentrelies, are also distinguishable because, unlike appellant’s case, neither involved any implied assurance of leniency. (People v. Jablonski, supra, at pp. 814-816; People v. Coffman, supra,at p. 59.) Respondentdisputes that the detective’s statementto appellantthat the case could be capital and that appellant would benefit from providing an 20 explanation were “impermissible threats of punishmentor promises of leniency.” (RB 67.) Respondent does not provideany basis for its suggestion that some threats of punishment and promises of leniency are permissible. As shown bytheauthorities cited in appellant’s openingbrief, it has long been held thatit is unlawful for officials to extract a statement “by any direct or implied promises, howeverslight.” (Bram v. United States (1987) 168 U.S. 532, 542-543; AOB 81-82.) The record showsthat at the very outset, appellant unequivocally and unambiguously refused to talk about the sole subject of the interrogation. The ensuing questioning caused him to do what hedid not want to do: makestatements about the robbery-murder that could later be used against him. Byvirtue of the detectives’ refusal to take “no” for an answer and their insistence on asking appellant questions aboutthe very thing that he had refusedto discuss, their implicit threat that appellant could be subject to the death penalty and their indication that appellant would benefit from admitting and explaining the crime, appellant’s will to remain silent about the robbery-murders was overborne. Appellant’s statement was involuntary and therefore inadmissible underthe Fifth and Fourteenth Amendments. D. The Evidence Obtained As a Result of Appellant’s Statement Was Inadmissible During his interrogation, appellant providedthe officers with the names of Sue Burlingame, Stacey Billingsley and Greg Billingsley, whose identities and relevance to the present case was previously unknown to law enforcement. (1 RT 1221; 2 RT 1262-1263.) In the openingbrief, appellant argued that: (1) the testimony ofthose three witnesses should have been excluded because appellant’s statement was involuntary; (2) his statement was obtained throughthe use of a strategy deliberately designed 2) to circumvent the protections that Miranda decision was intended to provide, and (3) the witnesses’ testimony would not have been discovered without the information provided in appellant’s unlawfully obtained statement. (AOB 83-96.) Respondent counters that detective Reed did not engage in deliberate misconduct, that this Court should not “expand the Miranda rule”because the United States Supreme Court has declinedto apply the fruit of the poisonoustree doctrine to non-deliberate failures to provide Miranda warnings, and that law enforcement inevitably would have interviewed Burlingameandthe two Billingsleys even without the information that appellant provided. (RB 68-73.) As demonstrated below, respondent’s arguments are far from persuasive. 1. The evidence derivative of appellant’s statementis inadmissible because appellant’s statement was involuntary Theparties’ conflicting views on whether appellant’s interrogation statements were voluntary or involuntary have been briefed. (AOB 79-83, RB 64-68.) Appellant arguedin the openingbriefthat the testimony of Burlingameandthe Billingsleys should have been excluded becausethat evidence was obtained asa result of appellant’s statement, which was involuntary. (AOB 84.) Respondent disagrees. (RB 68.) As set forth above, respondent’s argumentregarding voluntariness should be rejected. (See ArgumentI. C., supra.) Because appellant’s statement was involuntary,thetrial court erred in denying appellant’s motion to suppress the evidence derivative of that statement. // HI / 22 2. Theevidence derivative of appellant’s statement should have been suppressed because the officers deliberately ignored appellant’s invocation of the right to remain silent Whether appellant’s emphatic refusal to talk is viewed as a complete invocation ofthe right to remain silent, a partial invocation or a refusal to waivethatright, the officers’ continued questioning waspart of a deliberate strategy designed to thwart Miranda’s protections. (AOB 68-70, 91 ) Reed’s attempt to characterize his questions concerning appellant’s whereabouts and actions on the night of the robbery-murdersas outside the scope of appellant’s invocation should be recognized as a post hoc attempt to justify what at the time was an intentional decision not to honor the invocation. Because the Miranda violation was deliberate, all evidence derivative of that misconduct should be suppressed. (AOB 84-92.) Respondent acknowledgesthat detective Reed admitted a practice of continuing to question suspects after they had invoked their right to remain . silent in order to obtain statements from them that could be used for impeachment purposes. (RB 69; 2 RT 1256.) However, respondent contends that Reed subsequently “clarified” that this was his practice only where the invocation waslimited or partial. According to respondent, wherethere had been a limited invocation, Reed’s practice was to continue the interrogation, but to discuss topics other than that which the suspect had refused to discuss, hoping that the suspect would ultimately beginto talk about it nevertheless. (RB 69-70.) In short, respondent contends that appellant misinterprets Reed’s testimony (RB 68-69), that the failure to honor appellant’s invocation wasnot deliberate (RB 64, 68-70) and that Reed’s subjective state of mindis irrelevant to appellant’s claim (RB 70). Respondentis wrong onall three points. The record does not show that Reedclarified his interrogation practice as respondent claims. Rather, the only fair readingofthe in limine hearing is that Reed deliberately questioned past assertions of Miranda rights, whetherfull or partial, in the hopesof obtaining incriminating statements. On questioning by defense counsel, Reed admitted thatit was his general practice to continue questioning a suspect who invoked the right to remain silent: Q. Andis it your habit in questioning individuals whoinvoketheir rightto remain silent to continue to question them after they have invokedtheir right to remain silent in orderto obtain those sorts of admissions that might be used if a person were to take the stand for purposes of impeachingthat person? A. Is your question in this particular caseor in general? Q. In general. A. In general, yes. (2 RT 1254.) In asking defense counselif the focus ofhis question was ‘in general’ or appellant’s case in particular, Reed made clear that he intended to confirm that it was his generalpractice to disregard invocations. However, Reedtestified that appellant had not invokedhis right notto talk to him; hehad only refused to discuss the robbery-murder. (2 RT 1255.) Reed went on to explain that a refusal to discuss a particular subject was not, in his view, an invocation ofthe right to remainsilent, andif “as the interrogation continued, they for whatever reason began to talk about it,” those statements were nevertheless admissible. (2 RT 1256.) Although Reed’s view wasthat he hadnot disregarded an invocation in appellant’s case, he never repudiated his testimonythat it was his habit in 24 general to continue questioning suspects who invoked their right not to speak to him. Further, Reed did not say that when a suspect refused to discuss one particular topic, he ceased questioning on that topic and asked questions only on unrelated matters, as respondent repeatedly contends. (See RB 64, 69, 70.) Reed’s testimony reflects no intention of honoring any refusal to talk, whether it was on all topics or only one, whether he was willing to call it an “invocation” or not. Given Reed’s admission that he routinely ignored Miranda invocations and that he continued to question suspects whorefused to talk about a particular topic without any . qualification as to subject matter,it is unreasonable to contend, as respondentdoes, that his practice was to abide carefully by a suspect’s partial invocation as he continued the interrogation. (RB 69-70.) Theplain fact is that Reed’s testimony described a general practice of deliberately ignoring invocationsofthe right to remain silent, whetherfull or partial. This case provesthat Reeddid not, in fact, honor what he considered to be appellant’s partial invocation. Reed did not question appellant only about “other topics” (RB 69) until appellant “for whatever the reason began to talk about” the robbery-murders(2 RT 1256). Rather, after asking a few questions about appellant’s identity and where he wasliving, Reed began grilling appellant about matters directly related to that crime. He asked whether appellant owned any guns (Aug CT of 11/10/09 Appendix A,p.4), a question which Reed admitted related to the robbery murder. (2 RT 1251.) He asked, “care to tell us where you were atlast night?” (2 RT 1252; Aug CT of 11/10/09 Appendix A,p. 4), a question directly related to the robbery-murder. Virtually all of the ensuing questions, summarized above (see ArgumentI. B., supra), concerned what appellant had done the previous night — the night of the charged crimes — and culminatedin Reed 25 directly accusing appellant of committing the murders. (Aug CT of 11/10/09 Appendix A, pp. 4-17.) In sum, Reed made no attempt to avoid asking appellant about the robbery-murder, and he admitted thathis questions were intendedtoelicit statements that incriminated appellant in that crime. (2 RT 1252.) Other evidence supports the conclusion that Reed deliberately ignored appellant’s assertion of his right to remain silent. First, when appellant said, “No. Not about a robbery-murder. Jesus Christ,” Reed did ‘not ask appellant what he was willing to discuss. Second, an hour into appellant’s interrogation, after Reed had questioned appellant extensively about the night of the crime, accused him of being the killer, left the interrogation room for someperiod oftime and then returned, Reed asked appellant whether in refusing to talk about the robbery-murder, he meant that he wanted to talk abouthis “alibi.” (Aug CT of 11/10/09 Appendix A, p. 23.) Appellant had not mentioned “alibi” previously, nor had he stated he waswilling to talk about any subject. Reed’s post hoc attemptto re- characterize appellant’s clear refusal to talk about the robbery-murder as a statement of willingness to discuss the subject ofalibi strongly suggests that Reedknew he wasdisregarding appellant’s invocation, and only later realized that he might be able to make it appear that he had in fact intended to comply with Mirandaall along. This inference is supportedby his response when defense counsel asked him why hehad asked appellantif his refusal to talk about the robbery murder was in fact a statement of | willingness to talk about his alibi, Reed answeredthat he “knew [he]’d be sitting here on this stand at this hearing... .” (2 RT 1258-1259.) Reed’s practice was not unique. In the 1990s, many law enforcement officers in California were trained to continue questioning a 26 suspect who invokedhisright to counselor right to remainsilent, i.e., to question “outside” Miranda. (Weisselberg, Saving Miranda, (1998) 84 Cornell L. Rev. 109, 132-137; Missouri v. Seibert, supra, 542 U.S. at 611, fn. 2.) The many decisions on the subject reflect that the practice became widespread. (See authorities cited at AOB 52-53; see also, e.g., Henry v. Kernan (9" Cir. 1999) 197 F.3d 1021, 1026 [involving detectives in the Sacramento County Sheriff’s Department, as does appellant’s case}; California Attorneysfor Criminal Justice v. Butts (9 Cir., 1999) 195 F.3d 1039, 1042-1044; Cooper v. Dupnik (9" Cir. 1992) 963 F.2d 1220.) Further, this Court recognized that training in techniques to avoid Miranda “Thad] not been without widespread official encouragement.” (Peoplev. Neal, supra, 31 Cal.4th at p. 81, fn. 5, quoting Weisselberg, Jn the Stationhouse After Dickerson (2001) 99 Mich. L.Rev. 1121, 1136-38.) Forall the foregoing reasons, respondent’s contention that Reed’s failure to honor appellant’s invocation of the right to remain silent was not _ deliberate is wholly unpersuasive. Equally unpersuasive is respondent’s claim that Reed’s state of mind is irrelevant. (RB 70.) Respondent relies on Whren v. United States (1996) 517 U.S. 806, 813, a Fourth Amendmentdecision holding that the relevance of the officer’s state of mindis not relevant to determining the lawfulness of a traffic stop. By contrast, the officer’s state of mindis relevantto the question of what remedy is appropriate for conducting an unlawful interrogation. As set forth in the opening brief, one of the tworationales for suppression of derivative evidence is the need for deterrence, which depends heavily on whetherthe officer’s violation of Miranda was “willful, or at the very least negligent.” (Michigan v. Tucker (1974) 417 U.S. 433, 447: see AOB 87-89.) Where the high court found that the officers were 27 “strategists dedicated to draining the substance out ofMiranda,” suppression ofthe evidence obtained as a result was warranted. (Missouri v. Seibert, supra, 542 U.S.at p. 616 (maj. opn. of Souter, J.); see also id. at p. 622 (cone. opn. of Kennedy,J. [favoring suppression only where“the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.”].) Asstated above andin the opening brief, no reasonable police officer who intended to abide by Miranda andsubjectively believedthat appellant had refused only to talk about the robbery-murder would have considered it permissible to ask the questions that Reed asked appellant. Reed’s approach to appellant’s invocation was not a good faith interpretation of Miranda; it was a deliberate strategy for thwarting Miranda’s purpose. (AOB 67-70, 72, 91; ArgumentI. B., supra.) Finally, respondentoffers scant opposition to appellant’s argument that suppression of derivative evidence is warranted where police deliberately violate Miranda by purposefully ignoring an invocation of rights. (AOB 83-92.) Respondentfirst asserts what appellant already has addressed — that the high court has declined to apply the fruit of the poisonoustree doctrine in cases involving non-deliberate failures to provide Miranda warnings. (AOB 87; RB 70.) Respondent’s only other answeris a footnote attempting to distinguish Missouri v. Seibert, supra, 542 U.S. 600 on the groundthat it “did not involve an application of the ‘fruit of the poisonoustree’ doctrine.” (RB 71, fn. 60.) Appellant had not argued otherwise, and respondent’s observation neither diminishes the importance of Seibert to the question before this Court nor counters the rationale underlying the rule appellant urges. Appellant points to Seibert not as an application ofthe fruit of the poisonoustree doctrineper se, but becauseit 28 demonstrates that the high court views evidence obtained by use of an interrogation strategy “adapted to underminethe Miranda warnings” (Missouri v. Seibert, supra, 542 U.S. at p. 616, fn. omitted (opn. of Souter, J.)) very differently from evidence derived from a non-deliberate failure to provide such warnings, as in United States v. Patane (2004) 542 U.S. 630, Oregon v. Elstad (1985) 470 U.S. 298, and Michigan v. Tucker (1974) 417 U.S. 433. Where,as here,“[t]he interrogation technique usedin [the] case is designed to circumvent Miranda,” (Missouri v. Seibert, supra, 542 U.S. at p. 618 (conc. opn. of Kennedy,J.), the evidence obtainedas a result of such a deliberate strategy should be suppressed. Respondentoffers no serious answerto thesignificant legal question posed by appellant’s claim. Because detective Reed interrogated appellant pursuant to a strategy of deliberately ignoring any invocation ofMiranda rights, the evidence derivative of appellant’s statement should have been suppressed. 3. The testimony of Burlingame and the Billingsleys would not inevitably have been discovered In the opening brief, appellant showed that the testimony of Sue Burlingame and Stacey and Greg Billingsley was obtained as a result of information provided by appellant in response to the unlawfulinterrogation. Whether appellant’s statement was involuntary or voluntary and Miranda- violative, the testimony of Burlingame and the Billingsleys was inadmissible unless the prosecution could prove by a preponderanceofthe evidence that it would inevitably have been discovered through other means. Appellant has demonstrated that the prosecution did not meetthis burden in his case. (AOB 92-96.) Respondentdisagrees, citing Detective Edwards’s testimony that during the normal course of investigation, he would have contacted appellant’s place of employment “to gain appellant's 29 ‘background [information] andhis activities,” and would have attempted to contact other employees who workedthere for the same purpose. (RB 71- 73, citing 1 RT 1219-1220.) Respondent’s argumentis belied by the record. Edwards’s claim that he would have contacted appellant’s employer is contradicted by the fact that Edwards did participatein the investigation, and there is no evidencethat he or any other representative of law enforcementactually went to appellant’s workplace, McKenry’s Cleaners, or attempted to identify and contact any of his coworkers other than those mentioned by appellant. Although detective Reed called Chuck McKenry, appellant’s employer, on the phone,there is no evidence that McKenry, who had 25 employees, provided information about any of appellant’s coworkers or associates or that Reed asked him for such information. (2 RT 1271- 1272, 1303.) As Detective Reed admitted, it was speculative that without appellant’s statement about Burlingame and the Billingsleys, they would have gone to the McKenry’s Cleaners and would have become aware of other employees who knew appellant. (2 RT 1273.) Nor would the detectives have become awareofthe Billingsleys through Jerri Baker. Edwards and Reeddid, in fact, contact Baker and asked her about appellant’s backgroundandactivities, but she did not give them any information aboutthe Billingsleys. (18 RT 6193-6207; see AOB 93-94.) Baker would certainly not have led them to Burlingame, who did not work at McKenry’s and who had metappellant only once before she and appellant became romantically involved, a week beforethe crime. (13 RT 4660, 4678.) Baker did not know that appellant was seeing Burlingame or that he was with heron the day of the crime until she learnedofthat information by reading the police reports. (18 RT 6146.) Evidence would not inevitably have been discovered whereit is 30 “equally plausible” that law enforcement would not have discoveredit absent the illegality. (United States v. Ramirez-Sandoval (9th Cir. 1989) 872 F.2d 1392, 1400.) The admission ofthe tainted evidence put the prosecution in a significantly better position than it deserved to be. (Nix v. Williams (1984) 467 U.S. 431, 443.) The testimony of Sue Burlingame and Stacey and Greg Billingsley should have been suppressed. E. The Erroneous Admission Into Evidence of Appellant’s Unlawfully Obtained Statement Was Prejudicial In the openingbrief, appellant showed that reversalis required under Chapmanv. California (1967) 367 U.S. 18, 24. (AOB 96-120.) The evidence connecting appellantto the crimes charged was marked by significant gaps and inconsistencies, and witnesses with significant credibility problems. (AOBat 96-120.) Thus, there was a reasonable basis for doubting that appellant was the killer. The prosecutor succeeded in obscuring the weaknessesin its case by putting before the jury extensive evidenceof appellant’s criminal history and bad character, much of which was inadmissible. (See e.g., AOB ArgumentII.) The prosecutor’s coup de grace was the evidence of appellant’s unlawfully-obtained statement, which functioned to eliminate the doubts that the jury otherwiselikely hadasto his guilt. Respondentasserts that the evidence of appellant’s guilt was overwhelming (RB 73), arguing that appellant hadthe desire and intent to commit a robbery (RB 73-74) and the opportunity and means to commit the charged crimes (RB 74-75), and that the physical and other evidence pointed to appellant (RB 75-78). However, respondentfails to counter the showing of prejudice set out in the openingbrief. Although, as respondent contends, the jury heard a variety of 31 evidence from whichit could reasonably infer that appellant had theintent to commit robbery (RB 73-74),* the issue of intent was not disputed. Such evidenceshed nolight on identity, the central issue in dispute, other than by encouraging an impermissible inferencethat appellant had a disposition to commit robbery and therefore was the likely killer. In contending that appellant “cased” The Office (RB 74), respondent ignores evidence of the reason appellant wentthere that was consistent with his innocence: his ex-wife had participated in pool tournaments there, and, as he told both Burlingame and Webster, a year earlier, he went there because he hopedto see her. (13 RT 4680; 14 RT 4966.) The rules regarding circumstantial evidence prohibited the jury from drawing the inference that respondentasserts. (See CALJIC 2.0, 2 CT 509 [where circumstantial evidenceis reasonably susceptible of multiple inferences, the jury mustchose the one pointing towards innocence].) In contending that physical and other evidence pointedto appellant’s guilt (RB 75-78), respondentfails to refute the following the points, made in appellant’s opening brief, which show that the evidence provided ample basis for reasonable doubt. 1. The evidence was conflicting as to whether, on the night of the murders, appellant was wearing the shirt and boots that Webster later turnedin to the police, stained with blood. (AOB 98-101.) * Appellant has demonstrated that muchofthe evidencecited by respondentas evidenceofdesire and intent was inadmissible, to wit: appellant’s purported solicitations of Gentry andBillingsley (AOBat 196- 215), his alleged statements to the robbery investigators (AOB 216-23 8), and his purported statements about having used disguises to commit crimes in the past (AOB 132-137). In light of thoseerrors, the prejudice resulting from the admission of appellant’s unlawful interrogation is even clearer. 32 Respondent does not even acknowledge, much less address, appellant’s detailed showing that other evidence conflicted with Baker’s and Webster’s descriptions of the clothes appellant was wearing on the night in question (see AOB 98-101), and blithely asserts that appellant wore the shirt and boots that were “covered with” Tudor’s and Manuel’s blood.’ (RB 75.) 2. The evidence did not establish that appellant was at The Office at the time of the murders. (AOB 102-104.) Asset forth in the openingbrief, Tracy Grimes wasthe sole witness to testify that appellant was at The Office on the night of the murders,after he had dropped Burlingame off. (See AOB at 102.) Respondentasserts that Grimes established that appellant was at The Office until it closed andthat gunfire was heard “just minuteslater.” (RB 75.) Respondent misstates the evidence. | Grimestestified that he left The Office at around 8:40 p.m. on the night of the murders. (11 RT 4167, 4171, 4180.) Leslie and Joe Lorman discovered the bodies of Manuel and Tudor at approximately 9:20 pm. (12 RT 4319.) Anita Dickinsontestified that she heard shots sometime before 9:00 p.m. (11 RT 4262), but on the night of the murders, she told law 5 Respondent also overstates the record. The evidence showed that based on ABO and PGMbloodtyping, the blood on the shirt and boots could have come from Manuel alone, who was ABO type A and PGM type 2-1+, or Manuel and Tudor combined (16 RT 5481-5486), but it is an overstatementto assert that it was provento be theirs. (See, e.g., Peoplev. Page (2008) 44 Cal.4th 1, 16 [approximately 30% of the population is ABO type A]; People v. Smith (1987) 188 Cal.App.3d 1495, 1504 [approximately 35% of the population is PGM type 2-1+].) Regarding the quantity of blood, there were several bloodstains on the right boot and several on the shirt, mainly on the left side; on the left boot, there were some spots so small that they could not be confirmed as blood. (16 RT 5480-5484.) None of these items was “covered” with blood, as respondentasserts. (RB 75.) 22 oe) enforcementthat she heard gunshots between 9:15 and 9:30 p.m. (21 RT 7139.) Her testimony suggesting that Baker’s car was in the parking lot behind The Office at the timeof the shootings (12 RT 4266) was contradicted by her own prior statement and by her husband’s testimony (21 RT 7141, 7143; AOB 103). Thus, the evidence showsthat as muchas 40 minutes could have elapsed betweenthe time that Grimes last saw appellant at The Office and the time of the murders. Respondentfails to counter appellant’s showing that without appellant’s interrogation statement, there wasa Significant gap in the prosecution’s timeline. 3. The evidence wasconflicting as to whether the murder weapon wasappellant’s gun and wasin his possession on the night of the crimes. (AOB 105-110.) Contrary to respondent’s contention (RB 76), in raising this point, appellant is not improperly requesting this Court to reweighthe evidence and Webster’s credibility. Rather, appellant simply points out the inconsistencies in the testimony to demonstrate the inferences that a juror could have reasonably drawn against the prosecution’s case. 4. The absence of blood on the seats of Baker’s car was inconsistent with the prosecution’s theory of the case that appellant committed the murders and then drove to Webster’s house, wearing the blood-stained shirt. (16 RT 5458-5459, 5509; 19 RT 6512-6513; AOB 111-113.) Respondent attempts to counter appellant’s argument by pointing to the evidence that Baker cleaned her car with professional cleaning agents. (RB 76.) Although Bakersotestified (18 RT 6263-6267), she also stated that she did not clean the seats or cushions (18 RT 6266; AOB 111). Further, the evidence was conflicting as to whether or not Baker had cleanedthe car before orafter it was examined by law enforcement. (18 RT 6204, 6263; AOB 112.) Respondentfails to address 34 either argument. 5. Both Mary Webster and Jerri Baker lacked credibility. (AOB 117-119.) Respondent contendsthat a reviewing court may not reassess witnesscredibility, citing People v. Catlin (2001) 26 Cal.4th 81, 139, People v. Lee (2011) 51 Cal.4th 620, 632, and People v. Maury (2003) 30 Cal.4th 342, 403. (RB 77.) All those cases are inapposite, as they address claims ofinsufficiency of the evidence, a claim that appellant has not made. As set forth in the opening brief (AOB 96), the question in assessing prejudice under Chapmanis “not whetherthere wassufficient evidence on whichthepetitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable probability that the evidence complained of might have contributed to the conviction.” (Fahy v. Connecticut (1963) 375 U.S. 85, 87.) As stated above, appellant does not arguethat this Court should reassessthe witnesses’ credibility, but that it should recognize that as a result of the witnesses’ credibility problems, there is a reasonablepossibility that the jury’s assessment of those witnesses’ credibility, like its assessmentofall the prosecution’s evidence, might have been affected by the introduction of the unlawfully obtained evidence. 6. Webster had more of a motive to commit the crimes charged than appellant. (AOBat 115-117.) Respondentasserts that there was no evidence linking Websterto the charged crimes. (RB 77.) This, of course, does not address her motive. In any event, respondentis mistaken. The day after the murders, Webster was in possession of someofthe money, the murder weapon and the bloody clothes and boots. (15 RT 5228; 16 RT 5671.) Webster’s fingerprint, not appellant’s, was found on the box containing the murder weapon. (15 RT 5377.) 35 In addition, respondent concedesthat there is “no explanation” for the following other weaknessesin the prosecution case (RB 76): 7. The prosecution failed to connect the bloody footprints at the crime scene with appellant’s boots (AOB 113-114); 8. The pattern of bloodstains on the shirt that Webster provided to the police was not consistent with the prosecution’s theory of the crime (AOB 113); 9. The absence of fingerprint evidence connecting appellant with the crime scene, the gun, the box containing the gun or the money that Webster turned overto the police was inconsistent with appellant’s guilt (AOB 114); 10. The amount of money that appellant had after the killings wasinconsistent with the prosecution’s theory that he took the money from the bar (AOB 114-115). Needless to say, the absence of such evidence would be explained by the fact that appellant was not the killer. In short, the numerous weaknesses in the prosecution’s evidence left room forat least one juror to have reasonable doubtas to appellant’s guilt. Respondentdoesnot dispute appellant’s showing that the prosecutor relied heavily on appellant’s statements in closing argument. (AOB 97-98.) Respondent concedesthat appellant’s statement was “helpful”to the prosecution’s case, but contends that it was not “crucial.” (RB 73.) The question is not whetherthe erroneously introduced evidence was “crucial” to the prosecution’s case; “the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” (Fahy v. Connecticut, supra, 375 U.S. at pp. 86-87,italics added.) Respondentattempts to diminish the importance of appellant’s 36 statementto the prosecution’s case, contendingthat it was introduced “merely to rebut portionsof the defense case-in-chief. (RB 73.) As set forth in Argument VI, appellant’s statement did not rebut any evidence presented by the defense; and, because it tended to establish that appellant committed the crimes charged, the statement should have been presented in the prosecution’s case-in-chief,ifat all. (AOB 252-270.) The prosecutor’s decision not to present it until rebuttal appears to have been either for dramatic effect, because he did not wantto risk inserting error into the case by introducing evidence that was unlawfully obtained or both. Because appellant’s statement wasthe last piece of evidence that the jury heard beforeretiring to deliberate, it is even morelikely thatit contributed to the verdict than if it had been presented in the prosecution’s case-in-chief. That is, the fact that it was presented in rebuttal increases, rather than diminishes, its prejudicial effect. Respondenthas not proven that the admission of appellant’s statement was harmless beyond a reasonable doubt, as it must under Chapman. (Chapmanv. California, supra, 367 U.S. at p. 18.) The prosecution relied heavily on the statement and madesurethat it was the last thing that the jury heard beforeretiring to deliberate. In light of the totality of the evidence,it cannotbe said that the verdict “was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Reversal is required. II HI | 37 a THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ADMITTING EVIDENCE OF APPELLANT’S PRIOR CRIMINALITY AND THE DETECTIVES’ STATEMENTS TO MARY WEBSTER FOR THE PURPOSE OF BOLSTERING HER CREDIBILITY Thetrial court allowed the prosecution to introduce a raft of evidenceof appellant’s prior criminality, including evidence that appellant was an ex-convict, that he had physically assaulted Webster’s adult son and fought with her former roommate, and that he had admitted robbing banks and killing people in the past, on the theory that such evidence showed Webster’s fear of, and devotion to, appellant and the natureoftheir relationship, which the court found relevant to her credibility. Also to bolster Webster’s credibility, the court allowedthe prosecution to play for the jury a tape-recorded interview of Webster in which the investigating officers repeatedly asserted their belief in appellant’s guilt and their reasons for holdingthat belief. As shown in the opening brief, Webster’s feelings concerning appellant were not disputed and wereestablished by other evidence. By allowing the jury to be exposed to such highly inflammatory and prejudicial evidence of such minimal probative value,thetrial court abused its discretion. To the extent that the court limited the jury’s use of 7 the evidence,its instructions could not have effectively preventedthe jury from being improperly influenced by suchextensive evidenceof appellant’s criminal propensity. The court failed to limit the jury’s use of the evidence that appellant had killed before. The court’s erroneous admission of the evidence wasprejudicial and rendered thetrial fundamentally unfair. (AOB 121-195.) Respondent largely fails to counter appellant’s arguments. Much of 38 respondent’s responseis a recitation of the arguments of counsel and rulings ofthe trial court. (See, e.g., RB 78-98, 110-1 12.) Appellant does not concede any of the arguments madein the opening brief, but addresses below only the few arguments that respondentoffers as justification of the trial court’s rulings. Where respondent’s argumentconsists of merely repeating the trial court’s ruling and asserting its correctness without explanation (see, e.g., RB 110-111, regarding the admission of Webster’s taped interview), appellant does notreply, as the opening brief addresses the trial court rulings in detail. Respondent offers no substantial argument in answerto appellant’s contention that the admission of the challenged evidence was prejudicial and denied appellanta fair trial. (See RB 111- 112.) Asset forth in appellant’s discussion of Argument I above andin the opening brief (AOB 102-120), the weaknessesin the prosecution’s case left room for doubtas to appellant’s guilt. The openingbriefalso fully describes the prejudice resulting specifically from the erroneous admission of the inflammatory and prejudicial character evidence hereat issue. (AOB 184-190) The issues are fully joined. A. Respondent Does Not Refute Appellant’s Showing that the Evidence of Appellant’s Prior Criminality Was Minimally Probative of Any Disputed Fact Asset forth in the opening brief, appellant did nothing attrial to place in dispute the natureofhis relationship with Websteror her feelings for him. (AOB 153-157.) Appellant has also shown that his statements regarding past robberies and the use of disguises hadlittle or no tendency i n reason to show that he was planning to commit the crimes charged. (AOB 167-171.) Respondentattempts to refute these contentions, but fails. 39 1. Respondentdoes not refute appellant’s showing that Webster’s fear of appellant was not in dispute Respondent simultaneously concedesthat Webster’s fear and adoration of appellant were undisputed and asserts that appellant’s argumentto that effect is specious. (RB 101, 102.) In support ofthelatter assertion, respondent contendsthat defense counsel initially maintained that Webster did not fear appellant, and that whenthetrial court pointed outthat she told the detectives she wasafraid, defense counsel shifted theories and disputed the basis of her fear. (RB 102; see also RB 82.) The discussion to which respondent refers occurredat the hearing on the admissibility of the evidenceat issue, outside the jury’s presence. Defense counsel argued: But whatthe district attorney is trying to prove somehowis that well, she didn’t go to the police because she had fear of ' Mr. Case. There is nowherein any of hertestimony that he ever threatened herorsaidto her, look, you throw awaythis clothing, or else I will come and get you or I will have a friend of mine get you. Mary Webster had never been threatened by Mr. Case by any of those associates. The fear is just not there. And I would object to this evidence on the basis that it shows Mary Websteris fearful. (11 RT 4091.) When the court subsequently pointed outthat in her interview by detectives, Webster stated she was afraid, counsel clarified that he did not deny that Webster feared appellant, and would not be challenging the fact that she was fearfulattrial. (11 RT 4092, 4093; see also 11 RT 4098.) Contrary to respondent’s contention, this colloquy confirmsthat appellant did not dispute the fact that Webster feared him, only that fear was the reason that she did not goto the police initially. Respondentalso misinterprets defense counsel’s argumentthat 40 anyone would beafraid if someone cameto their door wearing bloody clothes and said he hadjust killed two people. (1 LRT 4092-4093.)° Respondent infers that appellant disputed the basis for Webster’s fear. In fact, the point of defense counsel’s argument was that admitting evidence of appellant’s bad character to show Webster's fear was notjustified because the fact that she feared appellant and a reasonablebasisfor that fear was established by other evidence. Further, respondent fails to recognize that this colloquy occurred outside the jury’s presence, well before the jury heard any evidence or argument. As set forth in the openingbrief, defense counsel did nothing in front of the jury to dispute that Webster feared appellant. (AOB 153-157.) Without any citations to the record, respondentasserts that the basis of Webster’s fear of appellant, “to wit appellant’s self-portrayal as a dangerous outlaw, was in fact fiercely contested.” (RB 102.) There is a reason that respondent does not cite to any support in the record forthis 6 In responseto the trial court’s statementthat Webster’s indecision about what to do with the bloody clothes and the boots was based on her fear of, and love for, appellant, defense counsel argued: Essentially, that will be coming out that I think anybody that’s reasonable would be afraid of someonethat just came into your houseand said, look, I just killed a couple of people and here’s the bloodall over and that’s pretty good, you know, pretty good evidence that he maybetelling the truth... I don’t think that we have to go back to crimes in 1974 or *78 or the wholelitany of things that Mr. Case has been involved in to provethis fear. Like I say, I don’t plan on challenging the fact that she was fearful. Just the incident itself would cause a normalpersonto be fearful. And I just think that the probative valueof that, of this additional fear is highly outweighedbyits prejudicial effect. 4] assertion: the record does not contain any. Appellant presented no evidence or argumentto the jury to dispute the evidencethat he had fought with Nivens and Hobsonorthat he had madethe statementsattributedto him by Webster and others abouthis criminal history. As shownin the openingbrief, neither Webster’s fear of appellant nor the possible bases of that fear were disputedat trial (AOB 153-15 7), and respondenthas not shown otherwise. Defense counsel argued that Webster was motivated by jealousy and implicitly by a desire to deflect suspicion from herself. (16 RT 5536-5537; 22 RT 7404.) He did not dispute that she feared appellant; he disputed that fear was her motivation for assisting in appellant’s prosecution. Evidence of appellant’s bad character mayhaveestablished that Webster had additional reasons to be afraid of appellant, butit did nothingto resolvethe question whether Webster’s fear was the reason for her testimony. Thus, to the extentthat the evidenceat issue showed that Websterfeared appellant, it was not probative of a disputed fact. 2. Respondent does not refute appellant’s showing that the altercations with Nivens and Hobson were minimally probative of Webster’s fear and cumulative of other evidence In the openingbrief, appellant argued that there was no evidencethat witnessing appellant’s altercations with Nivens and Hobson caused Webster to fear appellant, that Webster’s fear was otherwise established andthat the evidenceof the altercations was cumulative of other evidence. (AOB 157- 161.) Respondent concedesthat “there was plenty of evidence demonstrating [Webster’s] general fear of appellant,” but contendsthat because Webster personally witnessed appellant’s altercations with Nivens 42 and Hobson,evidence of those incidents was particularly significant and not cumulative. (RB 104.) Respondentasserts that witnessing the two altercations “immediately alerted [Webster] that appellant was indeed capable of violence and had a short temper.” (Ibid.) However, the causal connection necessary for respondent’s argumentis missing: there is no evidence that Webster subjectively interpreted those incidents as respondent contends. If those incidents caused Websterto fear appellant, the prosecutor would presumably haveelicited that fact from Webster during her extensive testimony. But he did not. In fact, when the prosecutor asked Webster if it was because she was afraid for her son or her brother that she called Detective Ford and told him that about the bloody clothes and gun, she said “no.” (14 RT 5032.) There is no evidence of how, if at all, the incidents with Hobson and Nivensaffected Webster’s state of mind,let alone evidencethat they caused or contributed to her fear of appellant. Thus, contrary to respondent’s contention, the evidence of those incidents was minimally,if at all, probative of Webster’s fear. 3. Respondentdoesnot refute appellant’s showing that appellant’s statements ' regarding prior robberies were of scant probative value for any permissible purpose Appellant also argued in the openingbrief that there was no evidence of any causal relationship between appellant’s status as an ex-convict or his claimsthat he had committed bank robberies in disguise and Webster's fear. (AOB 168-169.) Respondentasserts that appellant’s “self-portrayal as a highly sophisticated and dangerous ex-convict and bank robber . . . caused Webster fear, which she madeclear to the detectives through her interview.” (RB 106.) Again, respondent providesnocitation to the record to support this statement. In fact, althoughit is true that Webstertold the 45 detectives that she wasafraid of appellant (e.g., CT 6612, 6620), she did not tell them or indicate at any otherpoint that the reason for her fear was either appellant’s status as an ex-convictor his stories about committing bank robberies in disguise. Respondent contendsthat statements by appellant about past robberies in disguise “gave meaning to the other evidence, e.g., purchase of the gun, of his plan to commit a future robbery,” and showedthat he planned to commit a robbery in the future. (RB 107.) Respondent provides no explanationfor this illogical assertion. As appellant pointed outin the opening brief, a statement admitting a past robbery does not imply an intention or plan to commit a future one, except via an impermissible inference that the prior robbery reflects a propensity to commit thatcrime. (AOB 169.) Respondent’s assertion does not counterthat showing in any meaningful way. B. The Prejudicial Effect of the Evidence, Including Its Inflammatory Nature, Outweighed Its Minimal Probative Value Respondent contends that even if the nature of Webster’s relationship with appellant was not in dispute, the prosecution wasentitled to present evidence in support of each element in the case. (RB 103-104.) Respondent implies that the prosecutor had a right to present any evidence that supportedits case, no matter how tangential or minimally probative and even if the fact to which it relates was not disputed. Clearly, that is not the case. Asstated in the openingbrief, the trial court had a duty to exerciseits discretion under Evidence Codesection 352 to exclude evidence the prejudicial effect of which exceedsits probative value, and because this evidence reflected other crimes, to excludeit unless the People established that it has “substantial probative value that clearly outweigh[ed] its inherent 44 prejudicial effect.” (People v. Bean (1988) 46 Cal.3d 919, 938; People v. Ewoldt (1994) 7 Cal.4th at p. 380; AOB 149.) Particularly in light of the fact that Webster’s feelings for appellant and the nature oftheir relationship were established by other evidence and were not disputed, it was an abuse of discretion to give the prosecution carte blancheto put before the jury so much evidence ofappellant’s bad character in the guise of bolstering Webster’s credibility. In the openingbrief, appellant showed that the prejudicial effect of the admitting evidence of appellant’s assaults on Nivens and Hobson and his statements admitting his prior criminality waslikely to far exceed the minimal probative valueofthat evidence. (AOB 161-163, 171-172, 17 6- 177.) Respondent does not dispute that appellant’s statements about having killed before were inflammatory andlikely to have a highly prejudicial effect. Respondent contends, however,that neither appellant’s altercations with Nivens and Hobson,nor appellant’s claim that he was an ex-convict who had committed bank robberies in the past, was inflammatory because those incidents were not as inflammatory as the charged crimes. (RB 105, 107.) Respondent is incorrect. This Court has long recognizedthatprior acts of violence and other crimes have an inherently inflammatory and prejudicial effect. (See, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 404; People v. Thompson (1980) 27 Cal.3d 303, 314.) Althoughthe potential for prejudice may be decreased where an uncharged crimeis less inflammatory than the charge crime (People v. Ewoldt, supra, 7 Cal.4th at p. 405), it is not eliminated. Becau se the central issue in dispute was identity, exposing jurors to evidence of appellant’s past crimes waslikely to cause them to find appellant guilty not because the evidence proved it, but based on a belief that he was the kind of 45 person who would commit the charged crimes. Regardless of whether standing alone, the uncharged crimes were more or less inflammatory than the charged crimes, they involved violent conduct and robbery and therefore, their introduction into evidence was likely to cloud the jury’s dispassionate assessmentof the evidence. Thatis, it was highly likely that the other crimes evidence would be regarded by the Jury, consciously or otherwise, as evidence that appellant had a violent character and a disposition to commit robbery, and that therefore he was guilty. With respect to the evidencethat appellant told Webster he was a bank robber, respondent contendsthat the jury knew appellant had never robbed a bank. (RB 107,citing 14 RT 4971, 4998.) This claim is unsupported. Respondent’s record citations point to Webster’s testimony that appellant “bragged” about being a bank robberand told herstories about bank robberiesevery night (14 RT 4971), and her testimony that appellant did not rob any banks “during the periodoftime that he lived with ther]” (14 RT 4997-4998). The jury would not reasonably have deduced from this testimony that appellant had never robbed a bank. Webster believed him, and noevidence proved her wrong.. _ For the reasonsset forth in the openingbrief, the prejudicial effect of the challenged evidencefar outweighed is probative value. C. The Limiting Instructions Did Not Cure the Prejudicial Effect of the Evidence Respondentcontendsthat thetrial court’s instructions that the jury could consider the evidenceonly for a limited purpose, and not as evidence of criminal propensity, effectively mitigated the prejudicial effect of the evidence. (RB 105-106, 108, 109.) Respondentis incorrect. First, as pointed out in the opening brief, the court gave no 46 instruction limiting the use of the evidence that appellant had bumped a couple people off, knocked people off or slapped people in the past. (AOB 177-178.) Second, respondentfails to refute appellant’s showing that with so much evidence of appellant’s prior criminality, violent disposition and bad character, it was highly unlikely that the jury would be able to follow the limiting instructions that were given. (AOB 164-166, 172, 176-177.) Respondent contends that in the absence of evidenceto the contrary, it must be presumedthat the jury followedits instructions. (RB 105-106.) That may be the general rule. But, as set forth in the opening brief, numerous courts have recognized that uncharged misconduct may be so prejudicial and inflammatory that judges cannot reasonably expectjurors to be able to compartmentalize their thinking and followthe instructions. (AOB 164- 166.) Respondent’s contention fails to counter those authorities or explain why, given the sheer volumeofbad character evidence presented to the jury, they do not support appellant’s argumentthat the limiting instructions were likely to have been ineffective. Even with the limiting instructions,it is likely that the jury improperly considered that bad character evidence as | an indication that appellant was“a dangerous person morelikely than others to have committed the present offense.” (See People v. Thompson (1998) 45 Cal.3d at p. 86, 109.) Asstated above, respondent’s remaining contentions with respect to the instant argument raise no significant issues beyond those addressed in appellant’s openingbrief, and therefore no further reply is required. The issues are fully joined. 47 Ul THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHENIT ADMITTED EVIDENCE THAT APPELLANT HAD SOLICITED BILLINGSLEY AND GENTRY TO COMMIT OTHER CRIMES In his opening brief, appellant argued that thetrial court erred by admitting evidence that appellant had invited Greg Billingsley to help him rob a bowling alley and had asked Bobby Joe Gentry to be a getawaydriver in an unspecified robbery, where both incidents were limited by instruction to showingonly that the charged robbery-murders were part of an ongoing scheme or plan. (AOB 196-215.) Appellant showed that evidence of commondesign or plan is relevant and admissible only wherethe acts involved in the charged offense are undetermined, not wherethoseactsare conceded or assumed, as they werein his case. (People v. Ewoldt, supra, 7 Cal.4th 380, 394, fn. 2.) Appellant also arguedthat even if evidence of common design or plan wastheoretically relevantin this case, the solicitations of Billingsley and Gentry were not similar enoughto the robbery-murders at The Office to be admissible for that purpose. (/d. atp. 402.) Respondent doesnot dispute that the acts involved in the charged offense were assumedor conceded, but misconstruesthe applicable authorities to argue that evidence of plan or scheme was nevertheless admissible. Respondent conflates the two solicitations and exaggerates their similarity to the charged offense. Ignoring the fact that the court instructed the jury that it could consider evidenceofthe solicitations solely as evidence of continuing schemeor plan, respondentarguesthatthe evidence was also admissible to show motive andintent. Lastly, respondent contends that any error was harmless. (RB 112-125.) Respondent’s arguments are without merit and should berejected. 48 A. TheSolicitations Were Inadmissible as Evidence of CommonDesign or Plan . As shownin the opening brief, the probative value of evidence of design or plan is “‘to show that the act [involved in the charged offense] wasin fact done or not done.’” (People v. Ewoldt, supra, 7 Cal.4th at p. 393, quoting 1A Wigmore, Evidence (Tillersrev. ed. 1983) § 102, p. 1666.) Such evidence cannotbe used to prove the defendant’s intentor identity, but only “to prove that the defendant engaged in the conduct alleged to constitute the charged offense.” (Jd. at p. 394.) Where,as here, the acts involvedin the charged offense are assumed or conceded, evidence of commonschemeor planis not relevant to any disputed fact and is therefore inadmissible. (bid.) Respondent does notdispute that defense counsel conceded that the acts involved in the charged offenses had been committed. (17 RT 5774.) Instead, respondentrelies on the discussion in People v. Balcom (1994) 7 Cal.4th 414, 424, about the degree of similarity between the charged and uncharged crimes required for admission of uncharged crimes evidence to prove commondesign or plan. (RB 121.) Respondent misconstrues the Balcom passage it quotes as holding that degree of similarity is the only relevance question that must be answered in determining whether evidence of an uncharged crimes is admissible to show common design or plan. On the contrary, the court must also determine whether the act involved i n the charged crimeis in dispute. In the Balcom opinion itself, before addressing degree of similarity, the Court carefully examined the factual issue to which the uncharged crime evidencerelated. (People v. Balcom, supra, 7 Cal.4th at p. 422.) The defendant had been charged with rape and robbery. Ata previoustrial, the jury had convicted him of robbery but was unable to 49 reach a verdict as to rape. (/d. at p. 418.) At theretrial of the rape count, the defense was consent. (/d. at p. 420.) This Court rejected the prosecution’s argumentthat evidence of an uncharged rape and robbery was admissible on the issue ofintent, finding that “the primary issue for the jury to determine was whether defendant forced the complaining witness to engage in sexual intercourse by placing a gun to her head.” (/d. at p. 422.) Because no reasonable juror could have concludedthat the defendant committed that act but lacked theintent to rape, the Court held thatthe uncharged crimés evidence was cumulative on theissue of intent. (/d. at p. 423.) Because the defendantdisputed that he had committed the act of force involved in the rape, the uncharged crime was admissible as evidence of commondesign or plan. The Court reaffirmed the holding in Ewoldthat ‘evidence of a commondesign or plan is admissible to establish that the defendant committed the act alleged.’” (Ibid., quoting Ewoldt, supra, 7 Cal.4th at p. 394, fn.2, originalitalics.) Respondent’s interpretation ofthe above-quoted languageis clearly incorrect. Whether uncharged crime evidence is admissible to show commondesign and plan depends not only on its similarity to the charged offense, but there must also be a dispute as to whether the act involvedin the charged offense was committed. Appellant did not dispute that a robbery and a double murder had occurred, but only that he was the perpetrator. Other crimes evidence therefore could not be admitted to show commondesign or plan, as there was no need to establish what act had been committed. As appellant showed in the openingbrief, even if design andplan evidence weretheoretically admissible in his case, the two uncharged crimesat issue were notsufficiently similar to the charged offense to be relevant for that purpose. (AOB 204-207.) Respondent argues to the 50 contrary, alleging that the uncharged crimes shared four points of similarity with the charged crimes: (1) appellant alone would commit the actual robbery, (2) he wouldroba business establishment, (3) with which he had somefamiliarity, and (4) “thus allowing him to case the establishment.” (RB 122.) Respondentfails to distinguish the two solicitations from each other and grossly exaggerates their similarity to the charged crimes. Gentry testified that appellant neither identified whom he wanted to rob nor indicated that he had any place “staked out.” (16 RT 5742.) That solicitation did not involve robbery of“a business establishment,”let alone one with which appellant was familiar and which he could therefore “case.” (See RB 122.) Thus, the solicitation of Gentry did not share three of the four so-called points of similarity. Conversely, appellant did not identify either Billingsley’s or his own role in the “job” that he proposed. (13 RT 4603, 4612.) It was therefore not known whetherappellant intended to commit the robbery alone, as respondent contends, or with Billingsley or someone else. Furthermore, respondent’s third and fourth alleged points of similarity are for all practical purposes one andthe same: being familiar with an establishment necessarily allows oneto “case”it for employee routines and one cannot case an establishment without becoming familiar with it. (Cf. RB 122.) For all of these reasons, respondent’s analysis of the similarity between the uncharged offenses and the charged ones is wholly unpersuasive. Asset forth in the openingbrief, the only feature shared by both solicitations and the charged crimeis that all seemed to involve robbery. (AOB 207.) Even if common design or plan evidence had been relevant to a disputed fact, the other crimesat issue were not sufficiently similar to the charged crimesto resolve that dispute. Notably, respondent does not dispute appellant’s 5] distinction of decisions, including Ewoldt and Balcom, where much greater similarity between the uncharged misconduct and the charged crimes supported admission of the evidence to prove commonplan or design. (See AOB 206-207.) Nor does respondent cite any case other than Balcom to support its position. (See RB 121-122.) B. Whetherthe Solicitations Could Have Been Admitted for Another Purpose Is Irrelevant Because the Jury WasInstructed That They Could Be Considered Only on the Issue of Common Design or Plan Respondentcontends that this Court should uphold the admission of the solicitations in this case also becausethe trial court admitted that evidence to show motiveand intent. (RB 122-124.) Respondentfails to acknowledgethat, althoughthetrial court stated out of the jury’s presence that the evidence was admissible for other purposes,it instructed the jury that the sole purpose for whichthe solicitations could be considered was as evidence of ongoing design or plan. (2 CT 514; 23 RT 7615.) Whether the evidence could properly have been admitted on another theory is therefore irrelevant. Indeed, in Ewoldt, this Court rejected a similar argumentthat the other crimes evidence was admissible on a theory other than the onethat had been presentedto the jury: Weneednot, 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 was not admitted for that limited purpose and the jury was notinstructed to consider the evidenceonly as to that charge. (People v. Ewoldt, supra, 7 Cal.4th at pp. 406-407.) In any event,the trial court’s rulings that the evidence was admissible to show motive and intent were both erroneous. 52 C. TheSolicitations were Inadmissible to Show Intent Respondent contends that evidenceof the solicitations was admissible on the issue of intent. (RB 124-125.) Respondent ignores the fact that intent was not in dispute. Here, as in Balcom,“if the jury found that defendant committed the act alleged, there could be no reasonable dispute that he harbored the requisite criminal intent.” (People v. Balcom, supra, 7 Cal.4th at p. 422.) Appellant conceded that the killings were intentional (17 RT 5776), and did not dispute that whoever committed the charged crimes intendedto steal the money in the cash register. The prosecutor argued thatthe alleged solicitations were admissible to show “premeditation and deliberation towards doing the robbery.” (RT 5748.) The trial court agreed, finding that the robbery was the result of “a great deal of deliberation.” (16 RT 57 50.) In fact, whether the robbery was premeditated or deliberate was not a question before the jury, which only had to determine whetherthe killings had been premeditated anddeliberate. (CT 541 [CALJIC No. 8.20].) The alleged solicitations were not relevant to that question, as neither Billingsley nor Gentry claimed that appellant had said anything aboutkilling, shooting or even using force. Furthermore,neither of the unchargedacts was sufficiently similar to the charged offenses to be probative on the issue of mental state. Although the least degree ofsimilarity is required in order to establish that a prior unchargedact is admissible to prove intent, the evidence of appellant’s alleged solicitations do not meet even that low threshold. In Ewoldt, the Court explained that the “‘the recurrence of a similar result’” tends to establish that the charged offense is not the result of mistake or self-defense or inadvertence. (People v. Ewoldt, supra, 7 Cal.4th at p. 402, quoting 2 Wigmore, Evidence (Chadbourn rev.ed. 1979) § 302, p. 241.) In Balcom, 53 the Court held that evidence of prior misconductis not admissible to show intent if it shows only somegeneral criminal intention to commit the same class of crime. In order to be admissible on the issue of intent pursuantto Evidence Codesection 1101(b), prior misconduct must be similar enough to the presentcrimethat it shows something about “‘the mental state with which an act is done.’” (People v. Balcom, supra, 7 Cal.4th at p. 412,fh. 2.) This Court explained: For example, evidencethat a defendantcharged with rape had committed rape on another occasion in a mannerdifferent from the charged offense may tendto establish that the defendant had a propensity to commitrape and, therefore, ‘harbored criminal sexual intent toward the current complainant,’ but such evidence is inadmissible under Evidence Code section 1101 as mere evidenceof criminal disposition. (Citation.) ([bid.; see also, e.g., People v. Thompson (1980) 27 Cal.3d 303, 319-321 [intent to steal car keys on one occasion notrelevant to prove intentto steal car keys on a second occasion].) In appellant’s case, the results of the solicitations were entirely unlike the results of the charged crimes. The crimesthat Gentry and Billingsley described involved no action other than talking; appellant did not actually commit either of the robberies that he reportedly discussed with the two men. Even if the criminal conduct for which appellant purportedly solicited each of the two men had been completed, that conduct wouldnot have been similar to the crimes committed at The Office. In both solicitations, appellant suggested robbery, but did notindicate that he would use a weaponorthat he mightshoot or kill anyone. In both solicitations, appellant sought a crimepartner or getaway driver, whereas the crimes committed at The Office were committed by one person acting alone. 54 Giventhat the only similarity was that the same class of crime — robbery — was involved, the solicitations would only have served to establish that appellant had a propensity to commit robbery, which,as set forth above,is inadmissible as evidenceofcriminal disposition. (People v. Balcom, supra, 7 Cal.4th at p. 412, fn. 2.) D. TheSolicitations were Inadmissible on the Issue of Motive Respondent contendsthat appellant put motive in dispute by arguing that Webster was the mastermind behindthe crimes committed at The Office. (RB 123.) Respondent contends that the solicitations were sufficiently similar to the charged crimes to support the inference that appellant harbored the same motive in each instance. (Jbid.) At the time of trial, the prosecutor argued that the solicitations were relevant to motive “[t]o eliminate the witnesses and also in anticipation, what the defendant has said that Mr. Case had plenty of money.” (17 RT 5793.) The court ruled: “It would be admissible to that also.” (17 RT 5793-5794.) In order for prior uncharged crime to be admissible as evidence of motive for committing the charged offense, a nexus between the prior crime and currently charged crimemust be shown. (Peoplev. Scheer (1998) 58 Cal.App.4th 1009, 1018; see, e.g., People v. Daniels (1991) 52 Cal.3d 815, 857 [direct relationship between prior robbery where defendant was renderedparaplegic by police and murderofpolice officers in retribution]; People v. De La Plane (1979) 88 Cal.App.3d 223, 246 [evidence of prior robberies admissible to show motive to murder the witnessesto the robberies].) In this case, such a nexus waslacking. The prosecution tried to create the missing nexus by arguingattrial that the solicitations tended to show that the motive for the murders at The 55 Office was a desire to eliminate witnesses. That contention was entirely baseless andillogical. Neither Gentry nor Billingsley attributed to appellant any statement about possible witnesses or about shooting, killing, or even using a weapon in connection with the crimes which appellant purportedly invited them to commit. Neither appellant’s invitation to Billingsley to help him steal the bank deposit from the bowling alley nor appellant’s invitation to Gentry to assist in an unspecified “hold-up” implied any desire or willingness to eliminate witnesses while committing those or any other crimes. Nor did the solicitations have any other logical connection to the charged crimes. Neitherofthesolicitations involved Manuelor Tudor, or any group of which either of them was a member. Nothing about those uncharged crimes had a nexus with the crimes committed at The Office except insofarasall three crimes involved at most robbery. There was no dispute that the motive for the killings at The Office was to acquire the moneyin thetill. As this Court has observed,“the motive for robbery is generally one of acquiring the victim’s property, and proof that [appellant] previously committed theft or robbery for this purpose addslittle to the case.” (People v. Bigelow (1984) 37 Cal.3d 731, 748 [defendant’s prior thefts and robberies inadmissible to establish that charged robbery-kidnap-murder was committed to obtain victim’s property].) The solicitations were therefore inadmissible to show that the charged crimes were financially motivated because that issue wasnotin dispute. Respondentposits thatthe solicitations were admissible because appellant presented evidence of Webster’s history of financial struggles and “theorized that Webster had the motive and was the mastermind” behind the charged crimes. (RB 123.) Evidenceofthesolicitations did not, however, 56 refute the evidence that Webster was having financial troubles. She had intentionally under-reported her income and had been receiving Social Security benefits to which she was notentitled. (14 RT 5156-51 57.) The Social Security Administration hadtold her that the checks were overpaymentsand that she should not spend the money, but she had already done so. (16 RT 5621.) At the time ofthe killings, Social Security was | demandingthe return of that money. (16 RT 5621.) In fact, Webster had been pressuring appellant to commit robberies because she needed money so badly. (18 RT 6109, 6205, 6318.) Evidence of appellant’s prior solicitations was entirely consistent with, and in no way undermined, the evidence of Webster’s motive. To the extent that appellant suggested that heaffirmatively lacked a motive, evidence ofthe solicitations was of scant probative value. The solicitations occurred weeks or months before the charged crimes. (13 RT 4599, 16 RT 5726-5727.) Just two days before the crimes, appellant withdrew over $420 from his bank account. (20 RT 6788.) In his wallet at the time ofhis arrest was the combinationto his employer’s safe (21 RT 7260), which on weekendsgenerally contained $250 or $300 (18 RT 6228; 20 RT 6765). Appellant could haveeasily taken the moneyin the safe, but did not do so. With this evidence, the evidence that appellant was contemplating committing another robbery weeks before the charged crimes showedlittle or nothing about whetheror not he had a motiveto rob onthe day of the charged crimes. The solicitations evidence was not properly admissible on the issue of motive. In any event, that question is irrelevant because the jury was instructed that it could consider the other crimes evidencesolely for purposesof deciding whether the charged offense had been committed 57 according to a commondesign orplan. Finally, respondent offers no response whatsoever to appellant’s argumentthat, in addition to the inherentlikelihood that other crimes evidence will be viewedas evidence of criminal propensity or disposition, evidenceofthesolicitations was particularly likely to have a prejudicial impact because appellant had never been charged with those crimes. (AOB 211.) E. Conclusion For the foregoing reasons, respondent’s argumentsare not persuasive. Ignoring thetrial court’s limiting instruction, respondent argues from a mistaken premise andasserts theories of admissibility,i.e. intent and motive,that not only are inapplicable, but are factually unsupported. Respondent offers no meaningful response to the argumentthat the only purpose for which the evidence was admitted — as evidence of common design or plan — wasirrelevantto the issues in dispute and, in any event, that the evidenceoftheprior solicitations fell far short of the similarity required for admission under Evidence Codesection 1101, subdivision (b). Further, respondentfails even to address the prejudicial impactthat the evidence waslikely to have. The only real issue for the jury to decide was whether appellant was the perpetrator. Evidence of another crime was therefore admissible only if it met the demanding “signature”test applicable to evidence of identity: that is, “the uncharged misconduct and the charged offenses must share commonfeatures that are sufficiently distinctive so as to support the inference that the same person committed both acts.” (Ewoldt, 7 Cal.4th at p. 403.) Because the act committed was known and neither motive nor intent to rob were contested, the probative value ofthe solicitations 58 evidence wassolely as evidence that appellant had a propensity to rob, which the jury could only have viewed as evidence of identity. As set forth in the opening brief, admitting that evidence was prejudicial violation of appellant’s rights pursuant to Evidence Code section 1101, and, more importantly, appellant’s right to a fundamentally fairtrial. // /I // 59 IV THE TRIAL COURT ERRED IN ADMITTING APPELLANT’S STATEMENTSAS A GUEST SPEAKER AT THE MEETINGS _ OF ROBBERY INVESTIGATORS In the opening brief, appellant argued that the trial court committed reversible error in admitting his statements to robbery investigators concerning his mental disposition in relation to his prior robberies. When asked what he would have donehad a robbery victim resisted or interfered, appellant answered that he would have beenwilling to “take them out”or “blow them away.” (16 RT 5689; 17 RT 5812, 5819.) Appellant argued- that these historical, hypothetical statements were inadmissible because they did not fit within the state of mind exceptionto the hearsay rule, they were irrelevant to any material disputed fact, and they were more prejudicial than probative. (AOB 216-238.) Specifically, appellant challenged the admission of the statements as “generic threats,” the theory on which they wereallowed, because the statements did notreflect a present threat, but rather, described appellant’s inclinations 15 yearsprior to the charged crimes; the victims of the charged crimes did not belong to the hypothetical threatened class; the referenced mental state was remote; and the statements werethus irrelevant. (AOB 224-232.) Respondent disagrees. (RB 125.) Respondent acknowledges, however, that, consistent with all the participants’ understanding,the questions posed at the gatherings and appellant’s responses referenced past events. (See RB 134 & fn. 70, 133.) Further, there is no disagreement betweenthe parties regarding the applicable law and the degree of caution that must be exercised in admitting this type of prejudicial propensity evidence. (RB 132-133.) Appellant submits that, by disregarding the 60 exclusively retrospective focus of the gatherings, the trial court failed to engagein the careful analysis required to distinguish statements of mental propensity from statements of present or future intent. The two maybe,as here, easily confused. Respondent counters that the contested statements were properly admitted under Evidence Code section 1250 as generic threats and were relevant to appellant’s motive and mentalstate at the time of the charged crimes. With good reason, respondent abandonsthe prosecutor’s contention, also rejected by thetrial court, that the statements were admissible as “admissions” under Evidence Code 1220 as relevantto appellant’s “intent, motive, preparation, deliberation towards robbery.”” (17 RT 5748.) An admission is “an acknowledgment of some fact which tends — to prove guilt” of the charged crime. (Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 828.) The evidence was uncontradicted that appellant made nostatements at either gathering of investigators that indicated an intention to commit future robberiés; nor were future robberies the subject of the investigators’ inquiries. (16 RT 5702, 5704, 5717.) The only admissions, if any, that appellant maderelated to past completed crimes, for which he hadalready served his sentence, and even asto these, his 7 As here, in People v. Karis (1988) 46 Cal.3d 612,the prosecutor contended that the defendant’s statements that he would nothesitate to eliminate witnesses was admissible as a party admission under Evidence Code section 1220. (Id. at p. 635.) The Court, however, did not reach the question whether the statements were admissions, upholding their admission solely under Evidence Code section 1250. (Ibid.) All of the cases involving “generic threats” have relied exclusively on Evidence Code section 1250 as the groundfor their admission. (See, e.g., People v. Lang (1989) 49 Cal.3d 991, 1013-1016; People v. Thompson (1988) 45 Cal.3d 86, 109-11.) 61 statements were purely hypothetical. As such, the evidence at the 402 hearing failed to establish the foundational and relevancy requirements for admission pursuant to Evidence Code sections 1220 or 1250. The statements were therefore inadmissible under any theory. Thetrial court’s contrary ruling wasa prejudicial abuseof discretion requiring that the judgmentbesetaside. A. Appellant’s Answersto the Investigators’ Questions Were Not Admissible as Generic Threats Because They Related to Past, Not Future, Events and to A Hypothetical Class of Victims that Did Not Include the Victims in this Case 1. Appellant’s statements were not probative of his mentalstate at the time of the charged crimes A trial court’s determination of the admissibility of a statementas a “generic threat” under Evidence Code section 1250 must be guided by two principles. First, in general, the proponent of the evidence has the burden of establishing its relevance and the foundational requirementsfor its admission under an exception to the hearsayrule. (People v. Morrison (2004) 34 Cal.4th 698, 724; People v. Woodell (1998) 17 Cal.4th 448, 464.) Evidence must be excluded where the proponentfails to make an adequate offer of proof. (See Morrison, supra, 34 Cal.4th at p. 724.) Second, with specific reference to “generic threat” evidence, where the prosecution seeks to introduce a defendant’s statement regarding possible future criminal conduct, “the content of and circumstances in which such statements are made mustbe carefully examined in determining whether the statementsfall within the state-of-mind exception, as circumstantial evidence that defendant acted in accordance with his stated intent, and in assessing P S O E S a g S S whether the probative value of the evidence outweighs[its] potential 62 prejudicial effect.” (People v. Karis, supra, 46 Cal.3d at p. 636.) Neither principle was honoredin thetrial court’s ruling. | In its ruling, the court ignored the circumstances in which the statements were made and mischaracterized the evidence. First, the court failed to consider the mostcritical circumstance affecting both the questioners and appellant’s mindsetin relation to the statements, namely, the shared understanding that the questioning at both meetings where appellant spoke would be confinedto past events.® Sergeant Voudouris’s 402 hearing testimony was unequivocalon this point. (16 RT 5687, 5698 [appellant agreed to be interviewed onlyafter Voudouris and he reached an understanding that he would only be asked questions “relative to his priors”].) Despite a lengthy discussion,the trial court did not once mention this decisive pre-condition to appellant’s willingness to submit to law enforcement questioning. Then, in summarizing the evidence, the court misstated Brian Curley’s hearing testimony. Lumping theearlier and later statements together, the court incorrectly described them all as expressions of present or future willingness to use force. Even respondent has acknowledged that the questions about resistance at the private security luncheonrelated to what appellant would have donein the past. (RB 134, fn. 70.) That was also the only reasonable interpretation of what transpired at the meeting with the sheriff's deputies, in light of the past crimes limitation on questioning, which Voudouris’s trial testimony subsequently 8 Respondentasserts in passing, with no supporting argumentor explanation, that appellant’s understandingthat questionsat the seminar would belimited to past crimes “is of no consequence.” (RB 134.) This assertion is illogical on its face, as it is tantamountto arguingthat appellant’s mentalstate is irrelevant to determining his mentalstate. 63 confirmed. (RB 134; 17 RT 5819.) Respondent’s first contention, therefore, proceeds on the incontestable assumption that appellant’s statements related to actions he would have — but, in fact, had not — taken in the past. (RB 133.) Nevertheless, respondent contends that a conditional statementthat, in the past, appellant would have “blown away”resisting robbery victims is no different in meaning than a statement that, in the future, he would blow them away. (RB 133.) First, the contention is not tenable as a matter of English grammar and usage. (www.e-grammar.org [explaining that “would”has no pasttense, but “would have” followed bya pastparticiple is the perfect conditional tense in English (e.g., 1 would have been or would have done ) which can be used to speculate aboutthe past situations which weretheoretically possible, but did not happen in fact].) Second, respondent’s contention finds no support in the case law. Respondent cites People v. Cruz (2008) 44 Cal.4th 636, without explaining its relevanceto this argument. (RB 133.) In Cruz, the defendant was convicted of killing a sheriff's deputy by shooting him in the back of head. This Court upheld the admission of a statement made by the defendant about three months earlier when,in also resisting arrest, he threatened to kill another sheriff's deputy in exactly the same way. (Id. at pp. 650-651, 671.) The Court held the earlier threat was admissible under the rationale ofPeople v. Rodriguez (1986) 42 Cal.3d 730, 757, that a defendant’s prior threats to kill a police officer may be admitted on the issue of intent when that defendant subsequently doeskill a police officer.® * Unlike the statementin Rodriguez, the statement in Cruz was an individualized, not a generic, threat when it was made. (Compare Peoplev. Rodriguez, supra, 42 Cal.3d at p. 75 [defendant’s statement that he “would 64 (People v. Cruz, supra, 44 Cal.4th at p. 671.) | This case is not remotely analogous to Cruz, which involved an actual, not a hypothetical, threat to kill a sheriff's deputy made under circumstances that werevirtually identical to those present during the subsequent shooting. (People v. Cruz, supra, 44 Cal.4th at pp. 650-651.) Here, by contrast, there was no actual, proximate threat to a potential victim or class of victims. Nor is appellant’s case similar to other cases where generic threats have been found. In such cases, the threats, although conditional, were spontaneous, unambiguous expressions ofa present intent to carry out the threatened actions during the commission of future crimes. (See, e.g., People v. Lang, supra, 49 Cal.3d 991; People v. Karis, supra, 46 Cal.3d at p. 636; People v. Thompson, supra, 45 Cal.3d 86; People v. Rodriguez, supra, 42 Cal.3d 730.) Here, there were only conjectural answers to hypothetical questions regarding prior conduct that had not, in fact, occurred. Without resorting to an impermissible inference of propensity, appellant’s answers regarding hypothetical events during past crimes could not be interpreted as present generic threats to anyone. In Rodriguez, which involved the killing of two highway patrol officers, the defendant had repeatedly expressed to friends, neighbors and kill any officer who attempted to arrest him,”’which was admitted for intent where he subsequently killed two officers] with People v. Cruz, supra, 44 Cal.4th at p. 671 [defendant’s threat to kill Deputy Dikes admitted for intent where he fatally shot Deputy Perrigo during a subsequent arrest].) The Court converted Cruz’s statement from a specific to a generic threat, i.€., that the defendant intended to shootall sheriffs deputies in the back of the head, by engagingin circular reasoning: the later shooting was used to infer that the earlier statement was generic, i.e . directedto all sheriff's deputies, not just Dikes, which then was used to prove the defendant’s intent in the later shooting. 65 others that he hated the police and that he intendedto kill any officer who attempted to arrest him. (People v. Rodriguez, supra, 42 Cal.3dat p. 757.) On one occasion, a woman companion had physically prevented the defendant from reaching for a shotgun whenan officer stopped his car. (Ibid.) In Karis, three days prior to the charged rape and shootings,the defendant had volunteered during a conversation with a friend that he kept a gun for self-defense, had been to prison, and would considerit self-defense to kill anyone who might send him backor, as paraphrased by the Court, he would nothesitate to eliminate witnesses if he committed a crime. (People v. Karis, supra, 46 Cal.3d at pp. 625-626, 634; see also People v. Lang, supra, 49 Cal.3d at pp. 1013-1016 [admitting evidence that when asked bya friend why hehad carried around a handgun,the defendant pointedthe weaponatthe friend and replied that he would waste anyone who screwed with him; the same gun wasused in thecharged killing]; Peoplev. Thompson, supra, 45 Cal.3d at pp. 107-110 [admitting in rebuttal the defendant’s statementto a roommate that he would kill anyone whogotin his way, where other evidence brought this victim within the scope of the defendant’s generic threat].) In all of the foregoing cases, the defendant made an unequivocal, unprompted statement to a friend or acquaintance under circumstances indicating that the defendant had every intention of making good onhis threat. (See, e,g., Karis, supra, 46 Cal.3d at p. 625 [nothingin the record suggestedthat the defendant’s statement made during a social conversation at the homeof a friend wasnot trustworthy].) In some of thesecases, the defendant wasin possession of a weapon when he madethe threatening statement or there was other corroboration, without considering the crime itself, that lent concretenessto the threats. (See, e.g. People v. Rodriguez, 66 supra, 46 Cal.3d at p. 756; People v. Lang, supra, 49 Cal.3d at p. 1013.) Here, by contrast, the circumstances under which appellant’s statements were made wereantithetical to an inferenceofreliability. The statements were not voluntary disclosures to trusted friends. Rather, they wereflip responsesto hypothetical questions posed by persons — robbery investigators — who werecategorically adverse to appellant, in his own words “a robber by trade.” (16 RT 5704.) Appellant had no reason to be truthful with the investigators. In fact, he had a perverse incentive to exaggerate his criminality in order to make himself more valuable as a consultant. (16 RT 5696-5697 [if appellant did well at the free seminars, he might be able to make moneyas a consultant or advisor].) In short, appellant’s untrustworthy speculation aboutpast inclinations failed to meet any of the requirements for admission as generic threats. Alternatively, respondent contends that Sergeant Voudouris’s testimony at the 402 hearing madeclear that the hypotheticals posed were in the present tense. (RB 133-134.) Respondent is incorrect. Whenfirst asked whetherhespecifically recalled any of the questions asked and answers given at the sheriff's seminar, Voudouris answered “generally, yes.” (16 RT 5688.) When prompted bythe prosecutor, Voudouris then described a question about“appellant’s willingness to use force during a crime”and appellant’s answer that he would be “willing to use whatever force it took” if someonetried to stop him. (16 RT 5688-5689.) Voudouris did nottestify that either the question or the answer were reported verbatim. In fact, he restated that he would have to speak in generalities, rather than specifically, about questions on the subject. (16 RT 5689.) When next asked whether he remembered appellant specifically being asked what he would do if he faced resistance during a robbery, Voudouris offered that 67 appellant said “something to the effect” that he would be “willing to take them out.” (16 RT 5689.) He then clarified, in contrast to his other testimony, that to the best of his knowledge “willing to take them out” was a direct quote. (16 RT 5689.) Thus, contrary to respondent’s contention, Voudouris never stated, much less made clear, even at the 402 hearing that appellant’s hypothetical answers were in the future tense. Rather, Voudouristestified that his only verbatim recollection related to the phrase “willing to take them out,” which has no tense. In contrast to Voudouris’s imperfect recollection of what actually was said at the seminars stands his clear memory of agreeing with appellant that the questioning by the investigators would be limited to what had occurredin the past. (16 RT 5687, 5698.) In short, nothingin either Voudouris’s or Curley’s testimonyat the hearing satisfied the prosecutor’s burden to demonstrate that appellant’s statements were reliable indicators of his future intentions, rather than mere conjectures about the past. As such, the statements did not qualify for admission as generic threats and, thus, were not relevant or admissible under Evidence Codesections 1 101, subdivision (b), 1250 or 1252. 2. The Victims in this Case Did Not Fall Within the Category of IndividualsWhich Wasthe Subject of the Hypothetical Threats In addition to showing that appellant’s statements reliably reflected his present mental state and future intentions, the prosecutor also had the burden, under the generic threats theory, to demonstrate that the victims of the charged crime were brought within the scopeofthe threat. (People v. Karis, supra, 46 Cal.3d at p. 637, citing People v. Lew (1968) 68 Cal.2d 774, 778 [“Such a generic threat is admissible to show homicidalintent whereother evidence brings the actual victim within the scopeofthe threat” 68 (italics added)].) Thus, to establish the admissibility of a purported threat to kill resisting victims, the burden was on the prosecution, not the defense, to demonstrate that the victims in this case resisted or obstructed appellant in the commission of the robbery. Thetrial court demanded, and the prosecutor presented, no proof ofthis foundational fact. Respondent begs the question by offering an irrelevant dictionary definition. (RB 135.) No matter how “resistance” is defined, nothing on the record remotely suggests that Manuel and Tudorresisted the robbery in any way. 3. Because Appellant’s Statements Were Limited to Hypothetical Questions Related to Remote Prior Crimes, They Did Not Establish a Present Mental State Statements are inadmissible underthe generic threats theory where the evidence suggests that the threatening state of mind no longer existed at the time of the charged crime. (People v. Karis, supra, 46 Cal.3d at p. 637.) Because the court ignored the testimony that appellant’s statements were directed to events that could have, but did not, occur 15 years earlier,it failed to address the effect of this lengthy lapse of time. Had the court done so, it would have concludedthat appellant’s retrospective responses did not support an inference concerninghis present or future intentions or plans. Respondent notes that lapse of timeis just one factor in the inquiry whether a statementreflected a transitory or no-longer-existentstate of mind. (RB 135.) This is true, but respondent’s larger argumentfails because nothing in the content of appellant’s statements or the circumstances in which they were made supports the respondent’s reconstruction of appellant’s suppositions regardinghis past inclinations into assertions of present intentions, irrespective of when the statements were made. (RB 135.) 69 Respondent’s contention also fails becauseit is transparently fallacious. Specifically, respondent contends “while there was a lengthy gap betweenthe time period in which he committed his prior crimes [robberies] and when he committed the Office robbery and murder, the removal of his period of incarceration [for robbery] considered with his immediate plans to commit robbery upon his release from prison was an almostcontinuousthread ofhis willingness to eliminate anyone who resisted during the course of the robbery.” (RB 136.) The conclusion does not follow from the premise because, as respondent surely knows,theintent to rob is not remotely similar to the intent or “willingness”to kill; thus, the latter cannotbe inferred from the former. Thecasescited by respondentin support of this argument underscoreits flaws. Respondentrelies on the court of appeal’s decision in People v. Spector (2011) 194 Cal.App.4th 1335, for the proposition that even a lengthy lapse of time between a threatening statement and the timethe threat is carried out does not preclude admission ofthe statementas a generic threat where the statement waspart ofa continuing pattern of threatening and violent behavior toward the class of persons, in Spector’s case, women who werethe subjectofthe threat. (RB 135-136.) In Spector, the prosecutorfilled the 10-year gap between the defendant’s threats to shoot women and the charged shooting of the female victim with abundant other evidence showing a continuing pattern of violent statements andacts towards women. (People v. Spector, supra, 194 Cal.App.4th at pp. 1396- 1397.) Here, by contrast, the record contains no evidence of a long- - standing pattern of conductreflecting appellant’s supposed willingness to “take out” victims whoresisted during a robbery. Respondentidentifies only one instance of an alleged generic threat to witnesses, that reported by 70 Jeri Baker, but then undercuts the probative force of it own argument by acknowledging Baker’s serious credibility problems. (RB 135, 138.) Further, as Mary Webster’s testimony showed, appellant’s strategy for avoiding arrest was notto kill witnesses, but instead, to purchase disguises, put on temporary tattoos, wear bulky clothing and use Nu-Skin to avoid detection. (See 16 RT5S790.) Becausethe “sincerity”of these witnesses, both scorned former girlfriends, was itself in doubt, their testimony was of little or no value in establishing the sincerity of appellant’s statements. (16 RT 5787.) In any event, appellant’s statements were inadmissible not so much because he was being insincere, but rather, because the subject of the statements was prior completed — not future contemplated — crimes. Respondent’s citation to People v. Davis (2009) 46 Cal.4th 539,is equally unhelpfulto its argument. (See RB 136.) In Davis, this Court held that evidence ofprior sexual crimes was admissible under Evidence Code sections 1101, subdivision (b), and 1108 (allowing evidence of predisposition to commit a sexual offense) because the prior crimes were similar to the charged crime and werenot too remote,considering that the defendant had been incarcerated during most of the intervening time. (/d. at pp. 601-602.) Respondent seeks to “remove” appellant’s period of incarceration without meeting the threshold requirement of relevance — namely, that the prior robberies showed appellant’s willingness to “take out”resisting victims. Plainly, these priors were not sufficiently, if at all, “similar” in this critical respect, or the prosecutor would have presented evidence ofthe earlier robberies at the guilt phase, which he did not do. In sum,the relevance of appellant’s statements as other crimes evidence depended entirely on their first meeting the requirements for admission under the generic threats theory of Evidence Code section 1250: 7) that the statements pertained to contemplated future conduct ina hypothetical situation; and that other evidence brought the actual victim within the scope of threat. (People v. Karis, supra, 46 Cal.3d at p. 636; People v. Rodriguez, supra, 42 Cal.3d at p. 757.) Because the statements did not meet either of these requirements, as appellant establishedin his openingbrief, the statements were not relevant to any disputed issue in the case and should have been excluded as impermissible propensity evidence under Evidence Code section 1101, subdivision (b). For this most basic reason, the trial court abused its discretion in admitting this evidence. B. The Evidence of Appellant’s Statements Was More Prejudicial than Probative Appellant maintainsthat the minimal, if any, probative value of appellant’s responsesto the investigators’ questions was substantially outweighed by therisk of prejudice. (AOB 232-234.) Respondent urges the opposite conclusion. First, respondent contends that the statements to the robbery investigators were not cumulative because, even ifnot specifically admissible as a “generic threat,” they bolstered the reliability and accuracy of appellant’s statements to Baker. (RB 138.) The argument is perplexing,at best. | Appellant’s statements were admitted as generic threats, and their relevance derived entirely from this specific theory of admissibility. There is no exception under sections 1250, 1101, subdivision (b) or any other Evidence Codesection that permits the admission of one witness’s extrajudicial statements to bolster another witness’s testimony. Respondent’s next contention, which recognizesthat the statements were admitted as generic threats,is still puzzling because it comprises a lengthy fact-specific quotation from Karis that, onits face, is inapplicable here. 72 (RB 138.) In Karis, the probative value of the threatening language was greatly enhanced by two factors not presentin this case: the threat unambiguously stated the defendant’s present homicidal intention and was madeonly three daysprior the charged crime. Here, in contrast, appellant’s statements related to past, hypothetical dispositions and were made months before The Office robbery. | . Inasmuch asthese are respondent’s only arguments in support of the trial court’s section 352 ruling, no further reply is required. Appellant’s challenges to the ruling are fully detailed in his opening brief. C. The Admission of Appellant’s Statements Resulted in a Miscarriage of Justice and Rendered Appellant’s Trial Fundamentally Unfair Appellant arguesthat the erroneous admission ofhis informational, non-threatening statements to the robbery investigators was prejudicial within the meaning ofboth the state Constitution and the federal Due Process Clause. (AOB 235-238.) Because the statements related to appellant’s hypothetical mindset 15 years earlier, their only probative use wasas evidenceof his predisposition to violence. In his opening brief, appellant fully addressed the weaknesses in the proof of his commission of the murders and the resulting importanceofhis, statementsin filling critical gaps to the prosecution’s evidence. (AOB 96- 120, 235.) Respondent counters that the prosecution presented overwhelming evidence of guilt and therefore any error in the admission of the statements was harmless under both state and federal law. (RB 138- 139.) Respondentdoes not address any of appellant’s specific arguments. - Nor does respondent mention the court’s limiting instruction, and with good reason. The instruction neither cured the error in admitting the statements 73 nor diminishedtheir prejudicial effect. Both Voudouris and Curleytestified that the questions posed by the robbery investigators were in the past (conditional perfect) tense and that appellant’s answers followed suit. (17 RT 5812, 5870.) Nevertheless, the court’s instruction, in a clear misstatement ofthe evidence, changed appellant’s answersto the future tense. (2 RT 7274; 23 RT 7615-7616 [“what defendant would do,”“his reaction to a situation that might occur”(italics added)].) In so doing, the court substituted its own erroneousinterpretation of the statements for the jury’s independent determination of their import based on the evidence actually presented at trial. As such, the court’s limiting instruction contributed to the prejudice and the ultimate unfairness ofthe proceedings. Forthese reasons, the judgment must beset aside. // // // 74 Vv THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS TO A FAIR TRIAL AND TO PRESENT A DEFENSE BY EXCLUDING EVIDENCE THAT LAW ENFORCEMENT’S INVESTIGATION WAS INCOMPLETE In the opening brief, appellant arguedthat the trial court violated state rules of evidence as well as appellant’s state and federal constitutional rights to a fair trial and to present a defense by cutting off appellant’s attempt to elicit Detective Stan Reed’s testimony concerning the thoroughness of law enforcement’s investigation of the murders hereat issue. The trial court sustained the prosecutor’s relevancy objections when defense counsel asked Reed whether he knewpriorto trial of statements made by Steve Langford, Mary Webster’s brother, that were inconsistent with Webster's testimony, regarding who retrieved the gun from the car and what appellant was wearing on the night of the murders. (21 RT 6973- 6974.) These were twocritical aspects of Webster's testimony and therefore of the prosecution’s case. Reed’s lack of awareness priorto trial of Langford’s version of events on these two subjects was relevant to the thoroughnessof law enforcement’s investigation of the crime. Thetrial court’s rulings violated appellant’s right to present a defense. (AOB 239- 251.) Respondent does not dispute that the questions prohibited by thetrial court were relevant orthat the error, if committed, violated appellant’s rights to a fair trial and to present a defense. Respondent’s sole responseis that the evidence that appellant was attempting to elicit was already before the jury. (RB 143-145.) Respondentis incorrect. _-First, defense counsel’s questions asked Detective Reed, the lead investigator of the charged murders, whether he was aware priorto trial that 75 Langford hadstated that he was the one whogotthe gunout ofthe car. (21 RT 6973.) Contrary to respondent’s contention, defense counsel’s questions on this subject had not been “asked and answered,” and Reed’s previous testimony did not show that “Reed was completely unaware of [Langford’s previous] version ofevents at the time ofhis investigation.” (RB 144.) Rather, Reed’s previoustestimony established that he had not heardfrom Langford himselfthat he (Langford) had gotten the gun out of the car that night, but it did not establish whether Reed had learned of Langford’s version of events from the prosecutoror the prosecutor’s investigator or any other personparticipating in the investigation. The prohibited testimony would haveprovided a basis, otherwise lacking, for the argumentthat Reed had notbeen informed by others working on the investigation of evidence that was inconsistent with Webster’s version of events, and that a fortiori, Reed did not investigate information that was inconsistent with the prosecution’s theory of the case. (AOB 243.) Asit was,the limited evidence about Reed knew from Langford’s own statements did not provide a factual basis for that argument. Respondent’s contention is without merit. Second, defense counsel also asked Detective Reed about his awareness of Langford’s statement that appellant changedhis clothesat Webster’s house on the night of the murders. (21 RT 6973-6974.) Respondent contends that Webster’s testimony established that appellant had changedhisclothes, although respondent acknowledgesthat Langford said appellant left Webster’s house wearing tennis shoes, while Webster testified that appellant was wearing only socks, and argues that Webster’s testimony therefore established the facts necessary to challenge the adequacy of the investigation. (RB 145.) Respondent misstates the record 76 and fails to appreciate the import ofthe testimony that counsel sought to elicit. | Webstertestified that when appellant arrived at her house, he was wearing the pink and white striped shirt and the boots that were in evidence, as well as blue jeans, which were not in evidence. (15 RT 5000, 5007.) According to Webster, appellant removedhis shirt and bootsandleft her house wearing a long-sleeved thermalshirt that Webster had loaned him, socks but no shoesandstill wearing his blue jeans. (15 RT 5014-5016, 5020.) Langford testified that appellant came in wearinglight-colored pants, a light-colored shirt and cowboy boots (20RT 6699), and that he changedinto blue jeans,a t-shirt and tennis shoes (20 RT’ 67 1). Contrary to respondent’s contention, Langford’s version of events was significantly different from Webster’s. His description of the shirt that appellant was wearing when hearrived did not match that of the blood-stained shirt in evidence. His description of the pants appellant was wearing did not match Webster’s testimony on that subject. And whether the shooter was appellant or not, Langford’s testimony supported an inference that Webster had been in possession of the pants worn bythe shooter during the murders, which she denied. (17 RT 5960-5961.) Contrary to respondent’s contention, Langford’s testimony was inconsistent with Webster’s testimony in many highly significant respects, and those inconsistencies supported several possible inferences, including that Webster and Langford had committed the charged crime and framed appellant for them, and that Langford was unawarethat, for whatever reason, Webster had not turned given the police the pants worn during the shooting. Further, respondentignores the fact that the import of the question that the court prevented defense counsel from asking wasnot the 77 inconsistency between Langford’s and Webster’s respective versions of events per se, as that had been established by their trial testimony. Counsel’s question went to Reed’s awareness of Langford’s version of eventsprior to trial. If counsel had been permittedto elicit from Reed that he was unawarepriorto trial of Langford’s version of events, appellant would have had a far strongerbasis for arguing that Reed had failed to investigate evidence inconsistent with Webster’s version of events and that the investigation was sloppy and incomplete. Thus, contrary to respondent’s contention, the court’s ruling prevented appellant from eliciting evidence necessary to support his attack on the thoroughness ofthe investigation. Asset forth in the openingbrief, the court’s rulings were erroneous, as appellant’s questions wererelevant to the completeness of law enforcement’s investigation, a principle respondent does notdispute. Contrary to respondent’s contentions,the evidence which appellant sought to present had not been elicited from Reed or any other witness. By foreclosing appellant’s attemptto elicit the testimonyat issue,thetrial court’s error violated appellant’s state and federal constitutional rights to a fair trial and to present a defense and the judgment must be reversed. Tf // // 78 ' VI THE TRIAL COURT ABUSEDITS DISCRETION AND VIOLATED DUE PROCESS BY PERMITTING THE PROSECUTION TO PRESENT APPELLANT’S STATEMENT ON REBUTTAL BECAUSEIT WAS NEITHER RESPONSIVE TO, NOR MADE NECESSARYBY, APPELLANT’S DEFENSE In the openingbrief, appellant arguedthat the trial court abusedits discretion whenit permitted the prosecution to introduce statements that he made during his interrogation in rebuttal rather than as part of its case-in- chief. (AOB 252-270.) Appellant’s statements did not actually rebut any evidence elicited by defenseeither through impeachmentofthe | prosecution’s witnesses or examination of its own witnesses. (AOB 256.) In view ofthe centrality of the statements to the prosecutor’s case,it is reasonable to infer, as appellant has asserted, that the prosecutor’s tactical decision to withhold the evidence until rebuttal had both the purpose and the adverse effect of surprising appellant and unfairly maximizing the statements’ impact on the jury. (AOB 252, 256-257.) Accordingly, the trial court abusedits discretion in permitting the prosecution to present the statements in rebuttal, the error was prejudicial and it violated appellant's due process right to a fundamentally fair trial. Respondent counters that appellant’s statements were properly introduced in rebuttal to the evidence presentedas part of appellant’s case-in-chief, and hence there was no “sandbagging” by the prosecutor. (RB 145-157.) Respondent’s argument is unpersuasive. A. The Evidence of Appellant’s Statement Was Improper Rebuttal Respondent does not dispute appellant’s recitation of the legal principles governing the admissibility of the proffered rebuttal evidence in 79 this case. Rather, its entire contention rests on this Court’s observation in People v. Coffman (2004) 34 Cal.4th 1 that evidence may be admitted in rebuttal if it meets the requirements for impeachment on points the defense has putin dispute. (RB 153, citing Coffman, 34 Cal.4th at p. 68-69 [“Because Coffmantestified that she had nothing to do with what happened in the shower. . . and denied knowing that Marlow had killed Novis in the vineyard, the prosecutor wasentitled to rebut her testimony with prior inconsistent statements and admissions to Long.”].) This observation does not aid respondent nor doesit, to any degree, negate appellant’s argument that the statements at issue did not meetthe threshold requirements for rebuttal evidence. Respondent’s attempt to demonstrate the requisite correspondence between the statements and “points the defense has put in dispute” fails across the board. Appellant’s defense was consistent throughoutthetrial: that(1) three of the prosecution’s critical witnesses had a motiveto fabricate their | testimony(¢.g., 22 RT 7551: “Hell hath no fury like a woman scorned”): (2) the witnesses’ descriptions of appellant’s clothing were inconsistent (22 RT 7409-7411); and (3) the unidentified blood found on the shirt and boots could not be explainedby the shootings, and it was possible that someone had deliberately put blood from the scene on them (19 RT 6494-6507; 22 RT 7390-7391). Appellant’s cross-examination of prosecution witnesses and the testimony of his own witnesses conformedto these three theories of defense. None ofthe proffered statements rebutted these defenses except insofar as they were admissionsof guilt. 1. Appellant’s statement that he had seen news coverageof the killings at The Office In his openingbrief, appellant argued thathis statement that he had 80 seen news coverageofthe shootings on the morningofhis arrest and interrogation was not properrebuttal. (AOB 257-258.) Respondent contends that the statement rebutted the testimony of a defense witness, investigator Tony Gane,that there werenolistings for local news between the hours of 9:00 a.m. and 12:00 p.m.on that day.’ (RB 154.) Respondent is mistaken. Appellant’s statement was not inconsistent with nor made necessary by Ganes’s testimony. (AOB 258.) It was not proper rebuttal. 2. Appellant’s statement that he was at The Office on the nightof the crime Appellant argued in the openingbrief that his statements admitting that he was present at the Office twice on the day of the shootings, once with Sue Burlingameandlater alone, were wrongly allowed in rebuttal. (AOB 258-263.) These statements were “a material part of the case in the prosecution’s possession that tendsto establish the defendant’s crime,” not “evidence made necessary by the defendant’s case.” (People v. Daniels (1991) 52 Cal.3d 815, 859 [where the defendant testified that he had not been present at the murder scene, evidence showing that he had been present at the murder scene was improperrebuttal, “since proofofhis presence was an essential part ofthe prosecution's case-in-chief” 10 In People v. Mosher (1969) 1 Cal.3d 379, cited in Coffman, the Court criticized the prosecutor’s use of a crucial witness in rebuttal concerningthe defense of diminished capacity presented during the defendant’s case-in-chief when the prosecution could not have been surprised by the defense and the witness was available and knownto the prosecution during its case-in-chief. (/d. at p. 399 [“Under such circumstancesthe prosecution cannot persuasively contendthat it should not have introduced the doctor’s testimony as part of its own case.”].) Similarly here, the prosecutor could not credibly maintain as to any of the statements in question that he was unaware of appellant’s defense before it was presented. 81 (emphasis added)].) Respondent makes no attempt to defendthetrial court’s admission of appellant’s statement that he wasat The Office with Sue Burlingame.!! Respondentaddresses only appellant’s statement that he was at The Office until about 8:55 p.m. on the night of the murders. Respondent contendsthat the latter statement was admissibleto rebut the defense evidence attacking Grimes’s description of the clothing appellant worethe night of the murders and the purported inference that Grimes fabricated appellant’s appearance at The Office due to bias. (RB 154.) This contentionis unavailing for several reasons, the most obvious being respondent’s near-concessionthat the defense did not challenge Grimes’s testimony regarding the time of appellant's presenceat the office.'* (RB 154-155; see 11 RT 4186-4187.) Rather, the defense sought to impeach Grimes’s descriptionof appellant’s clothing basedonhis prior differing descriptions, as well as the conflicting descriptionsof the clothing by other witnesses. (11 RT 4198-4201a Respondentnext resorts to speculation that the jury could have interpreted appellant’s targeted attack on Grimes’s testimony as an entirely different defense of deliberate misidentification based on bias. (RB 155.) This is similar to, though not preciselythe sameas,the trial court’s rationale for admitting the statement which was based on speculation '' Becauseofthe absence of any argument by respondent regarding the Burlingamestatement, appellant stands on the argumentin his opening brief. (AOB 263.) ‘* No competent attorney would have attacked Grimes’s testimony regarding the fact or time appellant’s presence at the Office knowingthat appellant had madestatements admitting his presencethere and, pursuantto the court’s ruling, these statements were admissible in the prosecution’s case~in-chief. 82 regarding appellant’s closing argument, rather than the jury’s interpretation of the evidence. (RB 155; 21 RT 7232.) Neither conjecture is supported by the record. . Defense counsel did not remotely suggest that Grimes had misidentified appellant because he was biased against him. Indeed, when ~ counsellater argued that Grimes wasbiased against appellant by virtue of his friendship with the victims, he did so to explain why Grimes had changedhis description ofthe clothing between his original true statement and his testimony attrial. (22 RT 7428.) Defense counsel affirmatively adopted Grimes’s original description of appellant’s behavior and clothing as evidence negating appellant’s guilt. (22 RT 7423-7228.) Finally, respondent argues that appellant’s statement was not a material part of the prosecution’s case because there was other “sufficient evidence ofappellant’s presence at The Office.” (RB 155.) This argument is not reasonable as a matter of law or fact. Materiality in this contextis not determinedby the strength of the prosecution’s case, but rather, by whether the proffered rebuttal is really integral to the case for guilt. As this Court noted in People v. Carter (1957) 48 Cal.2d 737, proof ofthe defendant’s presenceat the sceneofthe crimeis an essential part of the prosecution’s case-in-chief. (Id. at pp. 753-754; see also People v. Robinson (1960) 179 Cal.App.2d 624, 631 [finding that the defendant’s “qualified confession” was not properly admitted on rebuttal where the “alleged confession was offered to establish facts constituting guilt; the impeachment feature was incidental and comparatively unimportant.”].) Here, the impeachment valueof appellant’s statement wastrivial, while its probative value — admitting not only that he wasat The Office but also howlate he stayed there — was substantial. (Cf. Jn re Cox (2003) 30 83 Cal.4th 974, 1032 [“as the United States Supreme Court has recognized, evidence of a confession has . . . a ‘profound impacton the jury’”]; Jn re Sassounian (1995) 9 Cal.4th 535, 548 [confessions can provide the prosecution with an ‘evidentiary bombshell which shatters the defense’ "1; People v. Bradford (2008) 169 Cal.App.4th 843, 855.) Respondent’s contention is wholly belied, moreover, by the prosecutor’s demonstrable need, as reflected in his closing argument, for appellant’s admission to prove guilt. (22 RT 7318-7319 [“But how manydifferent ways are there that we can actually prove that . . . [appellant] murdered Val Manuel and Gary Tudor? ... The defendant told Reed:and Edwards that he was at The Office at approximately 8:55 in Jerri Baker’s car parked near the white Camaro”].) In basing its admission of the statement on an unfounded conjecture regarding appellant’s argument, while ignoringits predictable misuse by the prosecutor, the trial court abusedits discretion. 3. Appellant’s statement that he was driving Jerri Baker’s Ford Probe on the night of the murders In the openingbrief, appellant argued that his admission that he drove Jerri Baker’s gray Ford Probe to The Office was not admissible on rebuttal because it did not rebut the defense caseas it related to Anita Dickinson’s testimonythat she noticed an unfamiliar car in The Office parking lot on the night of the killings. (AOB 263-266; 11 RT 4240-4245.) When shown a photograph of Baker’s car, Dickinsontestified only thatit looked similar to the one she saw in the parking lot because she “Just got a glimpseof that car.” (11 RT 4244-4245.) Dickinson also could not pinpoint the time she saw the unfamiliar car, only that it was between 7:30 and 8:45 in the evening. (11 RT 4240.) Respondent counters that appellant’s statement properly rebutted the 84 defense evidence “attacking the presence of Baker’s car at The Office on the night of the murders.” (RB 156.) The defense testimony in question, by. investigator Gane, waslimited to an accurate description of the height and length of a Ford Proberelative to a Camaro. (20 RT 6823-6824.) If ' impeachmentat all, Gane’s testimony was a minor corrective to Dickinson’s inexact and varying descriptions of the car. Like appellant’s admission regarding the time he returned to The Office, appellant’s statementregarding the Ford Probe was minimally impeaching, but substantially probative of guilt in establishing appellant’s presenceat the crime scene. (See People v. Carter, supra, 48 Cal.2d at pp. 753-754.) The prosecutor’s closing argument again provesthe point — that the admission was introduced in rebuttal, not for impeachment, but for maximum impact on the jury in deciding guilt. (See, e.g., 22 RT 7319.) 4. Appellant’s statement regarding the clothes and the blood onthe clothes _ Appellant has argued that his interrogation answers regarding the bloodstained clothing was wrongly admitted in rebuttal because the statements did not rebut his defense that the blood could have beenplanted. (AOB 266-269.) Thefirst part of the statement, that the blood came from shaving, was arguably evidence of consciousnessof guilt that, particularly given the prosecution’s advance knowledgeofthe defense (see, e.g., 1] RT 4157-4163), should have been presentedin its case-in-chief. Similarly, the second part of appellant’s statement, that the clothes were his, was a critical admission, so used by the prosecution, that should not have been withheld until rebuttal. Because the prosecutor had advancenotice of the defense and fully appreciated the value of appellant’s statements in proving guilt (22 RT 7331-7334), the only reason to delay introducing the statements was 85 to ensure that this wasthe last evidence the jury heard beforeretiring to deliberate. (People v. Carter, supra, 48 Cal.2d at p. 754 [“Restrictions are imposed onrebuttal evidence . . . to prevent the prosecution from unduly emphasizing the importance ofcertain evidence by introducingit at the end of trial.”) In allowingthe prosecutorto thus gain an unfair advantage by manipulating the order of proof, the trial court abused its discretion. Respondent acknowledgesthat the statements were material to the issue of whether appellant wore the bloodstained clothing on the night of the murders. (RB 156.) Appellant agrees. This is precisely the reason the evidence should have been presentedin the prosecution’s case-in-chief. Nonetheless, respondent, quotingthetrial court, argues that the statements were properly admitted in rebuttal as they “would tend to rebut”the defense that the blood on the clothing had not been produced bythe shootings because, if appellant were wearingthe clothing that night, they “could not have been smeared through the victims’ blood” by someoneelse.” (RB 156-157; 21 RT 7249.) This presumesthat appellant disputed that the clothing was his. He did not. The defense theory that the blood might have been planted rested on criminalist Peter Barnett’s expert opinion that the bloodstains foundon the shirt and boots could not be explained by the two shootings, and that nothing showedthat the shirt and boots had been wom at the same event. (19 RT 6490-6507.) Appellant’s ill-advised and somewhatflippant responsethat the bloodstains on the shirt, which he had not yet been shown, came from a shaving accident, addingthat he healed quickly, hardly rebuts Barnett’s expert analysis based on his examination of all the relevant crime scene evidence. In short, appellant’s statements regarding the clothing had,at best, minimal value asrebuttal, compared to their substantial probative force as admissionsofguilt. 86 Respondentrepeatedly cites to People v. Young (2005) 34 Cal.4th 1149 for the proposition that testimony that reinforces a part of the prosecution’s case that has been impeached may be admitted in rebuttal, but | respondent ignoresthe attendant concerns acknowledged by this Court. (RB 153, 154, 155, 157; Id. at p. 1199.) In Young, this Court upheld the admission of rebuttal testimony to corroborate the testimony of a prosecution witness who had been impeached by the defense in cross- examination and in its own case with a prior inconsistent statement. (/bid.) The witness hadtestified in the prosecution’s case-in-chiefthat the defendant exited the driver’s side of the vehicle. (/d. at p. 1198.) However, in both her oral and written statements to the police, she had placed defendant on the passenger side. (Id. at pp. 1198-1199.) The trial court allowed the prosecution to call another percipient witnessto testify on rebuttal that she also had seen the defendantexit the driver’s side. (/d.at p. 1199.) In holding there was no abuseof discretion, this Court emphasized the trial court’s finding that the rebuttal witness’s testimony did not raise the concerns or warranttherestrictions set forth in People v. Carter. (bid., citing People v. Carter, supra, 48 Cal.2d at pp. 753-754 [restrictions on rebuttal evidence(1) avoid juror confusion; (2) prevent prosecutor from unduly emphasizing impactof certain evidence; and (3) avoid unfair surprise to defendant by confronting him with crucial evidencelate in the trial].) This finding was supportedby the fact that the rebuttal was limited to a single inconsistentstatement by the prosecution’s witness which had been directly contradicted by testimony in the defense case-in-chief.'° '5 In People v. Young andthe other cases cited by respondent, the rebuttal evidence specifically contradicted testimony presented in the defense case. (People v. Young, supra, 34 Cal.4th at p. 1198 [prosecutor 87 Here, by contrast, the rebuttal evidence clearly implicated the concerns discussed in Carter and Young. Mary Webster was not impeached by a prior inconsistent statement regardingthe originsof the clothing. Barnett’s expert opinion did not contradict any statement in Webster’s testimony, but rather, raised otherpossibilities as to the sourceof the blood. Assuch, appellant’s statements did notspecifically rehabilitate Webster or refute Barnett. His statements were corroborative of Webster only because they were, as urged bythe prosecutor, highly damaging admissions of guilt. Any experienced prosecutor would have understoodthat as admissions, the statements should have been presented in his case-in-chief, but then their impact could have been bluntedby the defense case. By withholding the evidence until the end of the case, the prosecutor maximizedits effect on the jury and unfairly surprised appellant who would not have expected that his statements would be admitted in rebuttal, given that he had nottestified. For these reasons,appellant’s statements were not properrebuttal under Carter or even Young. B. Reversal Is Required In freely admitting appellant’s statements without considering the restrictions on the prosecutor’s withholding material evidence of guilt until argued that the proffered testimony wasproperto rebut evidence presented by the defensein its case-in-chiefthat corroboratedits impeachmentofthe prosecution witness]; People v. Coffman, supra, 34 Cal.4th at pp. 68-69 [where defendanttestified that she had nothing to do with what happenedin the shower, prior inconsistent statements and admissions were proper rebuttal]; People v. Crew (2003) 31 Cal.4th 822, 854 [where defendant introduced mitigating evidence of his good conductin prison, testimony about the defendant’s plan to escape from jail was proper rebuttal].) None of the cited cases allowed rebuttal testimony based on defense cross- examination generally challenging a prosecution witness’s veracity. 88 rebuttal, the court abused its discretion. For the reasons set forth above in Argument LE., the error wasprejudicial under both the state and the federal constitutional standards of review. // HI // 89 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 In his opening brief, appellant challenged thetrial court’s ruling, made midway throughjury selection, that defense counsel could no longer ask whetherprospective jurors could considerspecific mitigating factors such as poverty or abuse in determining whetherto impose death orlife imprisonment without the possibility of parole. (AOB 271-295.) This decision to restrict voir dire was an abuseofdiscretion resulting in inadequatevoir dire and a potentially biased jury in violation of appellant’s constitutionalrights to trial by an impartial jury (Cal. Const., art. I, §§ 15, 16; U.S. Const., 6" & 14 Amends.), and it warrants reversal of the death sentence. Respondent contends there wasnoerrorand, if there were error, it does notrequire reversal. (RB 157-167.) Respondent accepts, as it must, that “poverty and abuseare mitigating factors for a juror’s consideration (§ 190.3, subd. (k))....” (RB 164.) Indeed, the prosecutorrealized that the essential question about the Jurors in the penalty phase was “can they consider,listen to, and will they consider, notbe closed to these different forms of [mitigating] evidence.” (6 RT 2548; see AOB 283.) Andthetrial court recognizedthat Jurors who could not consider appellant’s mitigating evidence at the penalty phase would be excluded. (6 RT 2559-2560; see AOB 283.) Nevertheless, respondent disputes that there was state law and federal constitutionalerror whenthetrial court decided to preclude defense counsel from asking questions that already had exposed bias in one prospective juror — the inability to consider evidence of an economically disadvantaged childhood 90 — whichled to that juror’s exclusion for cause. (RB 164, 166; see AOB 272-273.) A. The Trial Court Improperly Restricted Defense Counsel’s Voir Dire on Mitigation, Resulting in Inadequate Voir Dire and a Potentially Biased Jury Theissue, as the parties agree, is whether the trial court struck the correct balance between permitting defense counsel“to ask prospective jurors questionsthat are specific enough to determine if thosejurors harbor bias, as to somefact or circumstance shown by the trial evidence, that would cause them notto follow an instruction directing them to determine a penalty after considering aggravating and mitigating evidence” (People v. Cash (2002) 28 Cal.4th 703, 720-721) and not allowing counsel to ask a question that is “so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and ageravating evidencelikely to be presented”(id. at pp. 721-722). (See AOB 281-282, 287-288; RB 157, 163.) Appellant submits that defense counsel’s questionsfell within the former, permissible category, while respondentasserts they came withinthelatter, impermissible category. As explained in the openingbrief, the trial court’s ruling was based on two erroneous findings (see AOB 285-289), and respondent does not overcome that showing. 1. Thetrial court mistakenly found that defense counsel’s voir dire questions about specific mitigating factors did not reveal hidden bias As appellant demonstrated in his opening brief, thetrial court’s finding that defense counsel’s questions did not reveal hidden bias (see 6 RT 2546) is plainly mistaken given thetrial court’s exclusion of prospective juror Warren for cause based on his answersto the same type of questioning 91 that it later abruptly forbade counsel to ask. (AOB 273-274, 285-286.) In arguing against the prosecutor’s sudden objection to what had been routine voir dire, defense counsel pointed outthat their inquiry “had revealed biases that would never ever have been discovered” without their questions about specific mitigating factors such as poverty and abuse. (6 RT 2545.) Undoubtedly, prospective juror Warren, who had been excluded that same day, wasfresh in counsel’s mind. (6 RT 2438.) Andhis voir dire examination is instructive. Mr. Warren’s bias was not revealed in response to a general question whetherhe could consider appellant’s background, character or any extenuating circumstancesas factors in mitigation. (See 6 RT 2425, 2433, 2436.) Rather, it was in response to questions about such specific mitigating factors that prospective juror Warren stated that he would not consider a defendant’s economically disadvantaged childhood or abuse at an earlier age or alcohol abuse as explanatory or mitigating factors. (6 RT 2429-2430; see AOB 272-273.) Respondentoffers two points in answer to appellant’s strong showing that the voir dire questions defense counsel had been asking some jurors, but was later barred from asking others, were effective in revealing bias. It attempts to discount the reason why Warren was excluded on the groundthat his “responses essentially indicated that he was ‘absolutely closed’ to all mitigating evidence. (5 RT 2433, 2437.)” (RB 164.) This response is curious because the record passages respondentcites do not show Mr. Warrenstating or agreeing that he was“absolutely closed”toall mitigating evidence, nor did thetrial court so find. But even accepting that description as fairly supported by the record,it serves to discredit — not support — thetrial court’s restriction on voir dire. The key fact, as noted above but ignored by respondent, is that Mr. 92° Warrendisclosed his inability to follow the law in response to specific questions about mitigating evidence, but not in response to general ones. After Mr. Warren stated he would not consider particular kinds of mitigating evidence (6 RT 2429-2430), the prosecutor questioned him in general terms about whether he “could listen” to “background evidence on the defendant .. . and whatever aggravating evidence would be .. . and after listening to it, determine what weightto give it.” (6 RT 2433.) Mr. Warren responded, ‘yes, I would be willing to listen to both sides” and further stated there was no reason he could notbe a fair and impartial juror. (6 RT 2433.) On follow-up voir dire, defense counseltried to clarify Mr. Warren’s prior statements that he would not consider some kinds of mitigating evidence. (6 RT 2435-2436.) Using the language of CALJIC No.8.88, the trial court then explained to Mr. Warren that the jury was entitled to consider any “circumstance which extenuatesthe gravity of the crime even though it is not a legal excuse for the crime” and “any sympathizing or other aspect of the defendant’s character or record . .. as a basis for a sentence of less than death.” (6 RT 2436.) The court then asked if Mr. Warren could consider those things, and Mr. Warren responded, “Yes, I could.” (Ubid.) Defense counsel followed with onefurther question, asking whether Mr. Warren could meaningfully consider factors such as a person’s poor upbringing, and Mr. Warrenstated, “I honestly don’t know.” (6 RT 2437.) Almost immediately thereafter, Mr. Warren was excluded for cause on appellant’s challenge with no discussion and no objection by the prosecutor. (6 RT 2437-2438.) Mr. Warren’s voir dire confirms the importance of defense counsel’s questions aboutspecific mitigating factors, questions that the trial court prohibited later the same day. When asked directly if he would consider 93 evidence ofpoverty or abuse, Mr. Warren said he would not. When asked generally about considering extenuating circumstances or background evidence, Mr. Warren’s answerdid not revealhis inability to consider the very types of mitigating evidence that both the trial court and prosecutorat trial, as well as respondent on appeal, have agreed must be considered by a juror at the penalty-phaseofa capitaltrial. (See AOB 280-281 [discussing federal constitutional and state statutory law].) Mr. Warren’s voir dire demonstrates that, contrary to the trial court’s and respondent’s views, questions about a prospectivejuror’s ability to consider mitigating evidence, couched in general the terms of CALJIC No. 8.88, were inadequate to guarantee appellant a penalty trial by 12 impartial jurors. (See AOB 277-278,citing 6 RT 2551.) The terms “extenuating 99circumstances,” “background” and “character” may be sufficient to guide a jury’s weighing of mitigating evidence andits decision-makingafter hearingall the penalty-phase evidence andlistening to closing arguments. But, because these general terms do not convey the types of evidence that may be presented in mitigation, they are inadequateto ferret out beforetrial biases prospective jurors may hold, perhaps unacknowledged even to themselves, that render them unable to follow the law and considerall the mitigating evidence a defendant offers in support of his plea for a sentence less than death. (§ 190.3, factor (k); Eddings v. Oklahoma (1982) 455 USS. 104, 114; In re Lucas (2004) 33 Cal.4th 682, 716, 735; see AOB 280-283.) The trial court was simply incorrectin finding that defense counsel’s questions did not disclose hidden biases. In addition, respondent opinesthat appellant’s observation that prospective jurors understand there is one right answer — “yes” — to general questions about whetherthey will consider mitigating evidenceor the 94 defendant’s background (AOB 284-285) also applies to questions identifying a specific mitigating factor. (RB 164.) This assertion, however, ignores the lesson to be drawn from the voir dire and exclusion of prospective juror Warren, where, as just discussed, general questions did not reveal his disqualification, but specific questionsdid. 2. Thetrial court mistakenly found that defense counsel’s voir dire questions about poverty and abuse were misleading and asked prospective jurors to prejudge the facts There was a second fallacy underlyingthe trial court’s ruling: the trial court mistakenly found that the voir dire questions about considering poverty and abuse “had a tendency to be misleading”and also asked the prospective 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; see AOB 280, 286-289.) Respondentrepeats these refrains (RB 163-164), but does not show them to betrue. Thetrial court and respondent refer to two separate concerns: one about the voir dire questions being misleading and the other about the questions seeking prejudgmentof penalty facts. But they appear to allege a single,inter- related defect, i.e. that the questions were misleading because they asked prospective jurors to prejudge someissues. Respondent contends that the precluded defense voir dire “was misleadingas it asked the potential jurors ‘to determine whether poverty and abusein general, without knowing anything else about these circumstances, could mitigate against a penalty of death for double murder and robbery.” (RB 163-164.) Whether phrasedas a single finding or separate findings,the trial court’s premise was incorrect and, consequently, it erroneously limited appellant’s voir dire in violation of state law and the Sixth and Fourteenth Amendments. 95 As appellant set forth in his opening brief, defense counsel’s questions inquiring whether prospective jurors could carefully consider specific mitigating factors, such as poverty or abuse, did not ask that they indicate how much weight, if any, they would give to such evidence, did not ask how they would assess such evidence compared with the aggravating evidence the prosecution mightpresent, and did not otherwise ask how such evidence might affect their determination of the appropriate penalty. (AOB 288.) The defense voir dire questions soughtto find out whether prospective jurors could consider constitutionally-recognized categories of mitigating evidence, which did not involve prejudging any penalty-phase fact or issue. These questions did not ask whether prospective jurors would credit the evidence as mitigating in fixing punishment, which would involve such prejudgment. (See AOB 276.) Respondent does not addressthis importantdistinction. Onthis prejudgmentpoint, appellant’s case is different than those discussed in his openingbrief, but overlooked by respondent, in which voir dire restrictions about mitigating factors have been upheld (AOB 288), and also is different than more recent decisions ofthis Court upholding voirdire limitations. (See, e.g., People v. Tate (2010) 49 Cal. 4th 635, 655 [no error in precluding defense counsel from usinga detailed, fact-based script to ask prospective jurors “whether, if it were proved beyond reasonable doubtthat (1) the defendant kicked in the victim’s back door and entered her home with intent to rob, (2) he murdered the victim duringthat burglary and robbery, (3) the victim died of multiple stabbing and puncture wounds and multiple blunt instrument blows, (4) the defendant severed the victim’s ring finger and took her weddingrings, and (5) the victim’s adult son discovered her body, the prospective juror would automatically impose either death or 96 life without parole as a penalty”); People v. Butler (2009) 46 Cal.4th 847, 858 [no error in precluding defense counsel from asking whether any juror would automatically vote for death, if he or she knew about an uncharged jail killing, where jurors had been informed that the case involved multiple killings].) Although defending the trial court’s decision to bar voir dire on specific mitigating factors, respondent says nothing aboutthis Court's very different position in allowing voir dire about victim impact evidence, which is an aggravating factor under section 190.3, factor (a). In his opening brief, appellant pointed outthe inconsistency in the trial court’s approachto voir dire about mitigating and aggravating evidence, demonstrated there wasno principled basis for the court’s disparate treatment of voir dire based on the type of evidence counsel soughtto explore, and argued that the order permitting voir dire about victim impact evidence underscoredits error in precluding voir dire about poverty and abuse. (AOB 280, 287-289.) If voir dire about victim impactevidence,a type of factor (a) aggravation,is not misleading and does not seek prejudgment of penalty-phase facts, then neither is voir dire about poverty or abuse, which are types offactor (k) mitigation. Appellant reads respondent’s silence on this pointas a tacit admission that appellant’s argument is correct. 3. Respondent does noteffectively distinguish the cases on which appellantrelies or effectively counter his arguments In addressing appellant’s claim oferror, respondent attempts to dismiss his reliance on People v. Noguera (1992) 4 Cal.4th 599 and People v. Cash, supra, 28 Cal.4th 703. (RB 164-166.) Its contentions should be dismissed as unpersuasive. In Noguera, this Court rejected the defendant’s contention that the prosecutor’s inquiry asked the prospective jurors to 97 prejudge the facts when the questions asked whether they wouldbe able to impose a death sentence on a defendant who was 18 or 19 at the time ofthe homicide and in a case where there was a single victim rather than multiple murders. (People v. Noguera, supra, at p. 645; see AOB 289-290.) The Court upheld the voir dire questions as proper because they were relevantto and aided the prosecution’s exercise of a challenge for cause. (Peoplev. Noguera, supra, at p. 646.) Respondent contendsthat, “unlike Noguera, defense counsel’s question weretoo abstract and potentially misleading” and “too general in the sense that there were no accompanying facts to give these factors any meaning.” (RB 165.) This repeats an earlier claim that asking prospectivejurors about poverty and abuse, without more, did not tell them much. (RB 163-164.) But defense counsel’s questionsin this case, asking whether prospective jurors could consider mitigating factors such an upbringing in poverty and childhood abuse, were no moreabstract than those in Noguera, asking whetherprospective jurors could consider imposing a death sentence on a young defendant or one whohad killed only one person. In both cases, the questions struck the right balance between being too abstract and too case-specific. They addressed categories of potentially mitigating evidence — youth and single victim in Noguera and poverty and abusein this case — without delving into the detailed description of the facts of the case to be tried. Had defense counsel here attempted to ask questions aboutthe mitigating factors of poverty and abuse in a more detailed mannertailored to the particular facts of appellant’s mitigation case, respondent undoubtedly would argue they were too specific rather than too general. (See, e.g., People v. Tate, supra, 49 Cal.4th at p. 655.) Respondentseeks to distinguish Cash on two points, both of which 98 appellant addressed in his opening brief. As a preliminary matter, appellant cited Cashfor the legal principle it announced, but did not analogize the disputed voir dire in his case to that in Cash. Instead, he relied on several cases discussed in Cash that, like Noguera, found voir dire about specific mitigating factors appropriate to determine whether prospective jurors hold views aboutthe potential mitigating evidencethat substantially impair their ability to serve on a capital jury. (AOB 289, discussing People v. Ervin (2000) 22 Cal.4th 48, 70-71, People v. Livaditis (1992) 2 Cal.4th 759, 772- 773, People v. Pinholster (1992) 1 Cal.4th 865, 916-917.) Respondent does not attempt to distinguish any of these cases. _ | Respondentfirst notes that Cash, unlike this case, involved a blanket rule restricting voir dire to the facts appearing on the face ofthe charging document. (RB 165.) But in his opening brief, appellant readily acknowledged that the trial court ruling here did not impose an absolute bar on inquiry into the subject of mitigating evidence. (AOB 281-282.) He explained that nonethelessthetrial court’s order limiting inquiry to questions about appellant’s “background”or “extenuating circumstances” and barring all reference to specific mitigating factors severely restricted defense counsel’s ability to detect prospective jurors who could not follow the law on mitigation. (AOB 282.) Respondentalso contends that in Cash, but not in appellant’s case, “the challenged factors involved mitigating circumstances and not a general fact or circumstance that would cause jurors to vote for the death penalty.” (RB 166.) Again, respondent apparently overlooks the argument in the openingbrief where appellant explained that the difference between the questionsin his case and the cases he discusses is not decisive becausein both situations the questions sought to determine the same thing — whether 99 jurors’ views aboutpotential mitigating factors disqualified them from serving on a capital case. (AOB 291.) Asserting a point appellant already has refuted, particularly without responding to his argument, fails to justify the trial court’s sudden decision to restrict appellant’s voir dire. Finally, respondent contends that simplylisting factors such as poverty and abuse “without providing any additional details is tantamount to asking the jurors whetherthey would consider appellant’s ‘background’ and “extenuating circumstances’ in mitigation which is what was done in this case.” (RB 164; see also RB 167 [repeating the same point].) But that is an erroneous equation asthe voir dire and exclusion ofprospective juror Warren, once again, proves. As discussed in section A.1., above, Mr. Warren responded quite differently to questions asking whetherhe could consider appellant’s background and extenuating circumstances (6RT 2433, 2436) and those asking whether he could consider an “economically disadvantaged childhood,”“abuse at an earlier age” or “alcohol abuse” (6 RT’ 2429-2430). His answersto the formerqualified him to serve on appellant’s jury, whereas his answersto thelatter disqualified him. Commonsense suggests that if, as respondentposits, the questions defense counsel wanted to continue asking were equivalent to thosethetrial court permitted him to ask, there would have beenlittle reason for the prosecutor’s mid-jury-selection objection andlittle reason for defense counsel to vigorously opposethetrial court’s order precluding voir dire on the specific mitigating factors of poverty and abuse. Simply stated, the record in this case undermines respondent’s contention that asking whether a prospective juror could consider a defendant’s background as mitigating evidence was the same as asking whetherthe juror could consider a | defendant’s childhood poverty or abuse as mitigating evidence. 100 Thetrial court did notstrike the right balance in prohibiting appellant from asking whetherprospective jurors could consider specific mitigating factors such as poverty and abuse. Asthis Court hasstated, “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 shownbythetrial evidence, that would cause them notto follow an instruction directing them to determine a penalty after considering aggravating and mitigating evidence.” (Peoplev. Cash, supra, 28 Cal.4th at pp. 720-721.) That was whatappellant sought and thetrial court denied. The prosecutor assumed thatthe jurors “will be opened minded-enough to considerthe types of evidence” presented at the penalty phase. (6 RT 2545.) But defense counsel, with good reason, wantedto make sure they would. Defense counsel knew, and the voir dire of prospective juror Warren proved,that general questionsdid not revealbias, while specific questions did. Appellant was entitled to find out if all the jurors who might sentence him could consider his mitigation case. Thetrial court erroneously denied him this right in violation of his state and federal constitutional rights to trial by an impartial jury. B. The Trial Court’s Error in Restricting Voir Dire OnSpecific Mitigating Factors Requires Reversal In his openingbrief, appellant explained thatthe trial court’s error requires reversal of appellant’s death sentence whether the reversal-per-se standard, the Chapman (Chapmanv. California (1967) 367 U.S. atp. 18.) standard, or the state-law standardis applied. (AOB 292-295.) | Respondent, like appellant, notes the two reasonsthis Court has identified for finding an errorin restricting death-qualification voir dire to be harmless. (Compare AOB 293-295 and RB 167 [both discussing People v. 101 Cunningham(2001) 25 Cal.4th 926].) Respondent concedes that one reason does not apply to appellant’s case: the defense wasnot permitted “to use the general voir dire to explore further the prospective jurors’ responses to facts and circumstancesofthe case... .’” (RB 167, quoting People v. Cash, supra, 38 Cal.4th at p. 722, quoting Peoplev. Cunningham (2001) 25 Cal.4th 926, internal quotation marks omitted: see AOB 294.) By its silence, respondent appears to concedethat the other reason for finding this type of error harmlessalso does not apply to appellant’s case. The record here does not establish that “‘noneof the jurors had a view aboutthe circumstances ofthe case that would disqualify that juror.” (RB 167 [quoting Cash, but offering no argument, on this reason]; see AOB 294.) Rather than explain why any error would be harmless, respondent simply restates its position that there wasnoerror. (RB 167 [appellant was allowed to ask whether prospective jurors “would consider appellant’s background, character or extenuating circumstances” which was “tantamount to asking generally about poverty or abuse”... , so “Tb]ecause defense counsel was not completely precluded from asking about mitigating circumstances, any error was harmless”].) In this way, respondent leaves undisturbed appellant’s showing that, especially in light of the exclusion of prospective juror Warren after voir dire about specific mitigating factors, there is real doubtthatall the jurors whodeliberated on appellant’s | punishmentwereable to considerall relevant mitigating evidence and thus were impartial. Becausethetrial court error makes assessment of prejudice impossible, even under the more demanding state-law standard, this Court should reverse appellant’s judgment ofdeath. 102 xX THE RESTITUTION FINE MUST BE SET ASIDE BECAUSE OF INSUFFICIENT EVIDENCE OF APPELLANT’S ABILITY TO PAY In the openingbrief, appellant argued that the trial court’s imposition of a $10,000 restitution fine was unlawful because there was insufficient evidence to support the implied finding that appellant was able to pay such a fine. Appellant also showedthatthe restitution fine should have been offset by the $4,000 that appellant was ordered to pay in direct victim restitution. (AOB 317-328.) Respondent concedesthat the restitution fine must be offset by the $4,000 direct victim restitution order, but contends that appellant has forfeited his challenge to the imposition of a restitution fine based onhis inability to pay, and that even if the issue has not been forfeited, there was sufficient evidence before the trial court to support a finding ofability to pay. (RB 175-181.) Respondent’s position is flawed and should berejected. A. Appellant’s Claim Is Properly Before this Court Because No Trial Objection Is Required for a Claim That the Evidence WasInsufficient to Establish His Ability to Pay Respondent does not dispute that appellant’s restitution fine is governed by the 1993 versions of Government Code section 13967 and Penal Code section 1202.4, or that those two statutes, as harmonized by the Court of Appeal in People v. Frye (1994) 21 Cal.App.4th 1483, conditioned the imposition of even the minimum restitution fine on the defendant's ability to pay. (RB 178-179.)'> Respondent contends that because appellant 16 Respondent incorrectly states that appellant was sentenced in 1993. (RB 178.) Rather, the crimes of which appellant stands convicted 103 did not object to the fine in thetrial court, his claim has beenforfeited. (RB 175-177.) Respondentis incorrect. Because appellant’s argumentis that the imposition of the fine was based on insufficient evidence, no objection below is required. Respondent attemptsto recast appellant’s claim as one “that the statutory procedure wasnot followed.” (RB 176.) Appellant has madeno such claim. Respondent’s contention that petitioner’s claim is forfeited should be rejected. As a preliminary matter, this Court’s recent decision in People vy. MeCullough (2013) 56 Cal.4th 589, 155 Cal.Rptr. 365, does not foreclose review. The defendant in McCullough challengedthe imposition of a booking fee pursuant to Government Codesection 29550.2, subdivision (a), on the groundthat there wasinsufficient evidencein the recordofhis ability to pay, a statutory pre-condition to the imposition ofthefee. Althoughthe defendant had notraised this challenge in thetrial court, he argued that pursuant to People v. Butler (2003) 31 Cal.4th 1119, his claim should not be forfeited. (McCullough, supra, 155 Cal.Rptr. at 371.) This Court held that the determination of the defendant’s ability to pay the bookingfee did not “present a question of law”like the probable cause finding required for a sentencing court to order a defendantto undergo HIV testing pursuant to Penal Code section 1202.1, at issue in Butler, and that therefore, it was forfeited by the failure to object below. (Ibid.) The decision in McCullough is not directly controlling in appellant’s case, as it concerned a different statute. Nor should the rationale of McCullough be applied to appellant’s challengeto the restitution fine in his case. The Court in McCulloughrelied in part on the absenceof guidelines occurred in 1993. He wassentenced in 1996. (3 CT 774-779.) 104 or procedural requirements in the authorizingstatute, which the Court viewed as an indication that the Legislature “considers the financial burden of the booking fee to be de minimis.” (McCullough, supra, at p. 371.) By contrast, Government Code section 13967 set out guidelines for the factors the trial court should consider in imposingtherestitution fine. Moreover, Penal Codesection 1202.4, expressly referenced in section 13967, required that if the court waived the imposition ofthe restitution fine,it hadto state on the recordits reasons for the waiver. Thus, the Legislature did prescribe guidelines and procedural requirements applicable to ability-to-pay determination here at issue. Further, on its face, imposition of a $10,000 restitution fine on a prisoner of any kind, and in particular one sentenced to death, cannot reasonably be considered a “de minimis” financial burden. _ Lastly, the court in McCullough did not address appellant’s contention that judicial economy is not served by defaulting the claim. (See AOB 321- 322.) Respondentrelies on People v. Gibson (1994) 27 Cal-App.4th 1466 in contending that appellant’s claim is forfeited. In Gibson, the court of appeal held that a defendant who did notobject below is precluded from challenginga restitution fine on the ground thatthe trial court failed to considerhis ability to pay. (/d. at p. 1468.) Thatprinciple is inapplicable to appellant’s case, as he doesnot claim thatthe trial court failed to consider his ability to pay; he argues that there was insufficient evidence to support the trial court’s implied finding of ability to pay. In dictum, the Gibson court also stated that “a defendant should not be permitted to contest for the first time on appeal the sufficiency of the record to support his ability to pay the fine.” (/bid.) The court of appeal reasoned that“[a] challenge to the sufficiency of evidence to support the 105 imposition ofa restitution fine to which defendantdid not object is not akin to a challenge to the sufficiency of evidence to support a conviction, to which defendant necessarily objected by entering a plea ofnot guilty and contesting the issue attrial.” (/d. at pp. 1468-1469.) The Gibson court further justified its view on the ground that foreclosing appellate review in the absenceof an objection below promotestheinterest in judicial economy. (/d. at p. 1469.) As noted in appellant’s opening brief (AOB 321, fn. 82), the court of appeal in Gibson did not have the benefit of this Court’s opinion in People v. Butler, supra, which rejected both the view that only convictions are subject to challenge for insufficiency of the evidence and the judicial economy rationale for foreclosing review where no objection was made below. (People v. Butler, supra, 31 Cal.4th at pp. 1126-1128.) As noted above, Butler concerned a challenge to an orderthat the defendant undergo HIV testing pursuant to Penal Codesection 1202.1. The Court held that “becausethe termsofthe statute condition imposition [ofthat order] 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.” (/d. at p. 1127.) The decision in Butler undermines not only the Gibson court’s theory that a challengeto the sufficiency of the evidence can be made only to a convictionitself, but also its judicial economyrationale for finding such claims forfeited by failure to object below. In Butler, this Court foundthat foreclosing appellate review would notfurther the interest in judicial economy, as it would only spur appellant into raising the issue on habeas corpus, in the form of a claim thathis trial attorney’s failure to object was a violation ofthe right to the effective assistance of counsel. (31 Cal.4th at p. 106 1128.) Thatis certainly true ofthe issue presented here,particularly ina capital case such as appellant’s, whereheis statutorily entitled to counsel on habeas counsel. (Gov. Code, § 68662.) In appellant’s case,it is a virtual certainty that if this Court forfeits the claim here,it will be raised again on habeas corpus. . Post-Butler, courts of appeal have permitted challenges on appeal to the sufficiency of the evidence in a number of contexts that were neither challenges to a conviction nor the imposition of an order for HIV testing such as the one before the Court in Butler. (See, e.g., People v. Christiana (2010) 190 Cal.App.4th 1040, 1046-1047 [challenge to order authorizing involuntary administration of antipsychotic medication]; Jn re K.F. (2009) 173 Cal.App.4th 655, 660 [challenge to basis for victim restitution order]; People v. Viray (2005) 134 Cal.App.4th 1186, 1217 [challenge to defendant’s ability to pay attorneys’ fees]; People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 [same]; Jn re Gregory A. (2005) 126 Cal.App.4th 1554, 1561 [challenge to juvenile court’s finding of adoptability].) It goes without saying that the court of appeal’s decision in Gibson is not binding on this Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) For the reasonsset forth above,the dictum in Gibson concerning claimsofinsufficiency of the evidenceis also lacking in persuasive value. For all these reasons, respondent’s reliance on Gibsonis misplaced. The other authorities on which respondentrelies are similarly unavailing. Respondent cites People v. Scott (1978) 21 Cal.3d 284,for the proposition that proceduralerrorsin the trial court are forfeited by failure to object. (RB 175.) Scott concerned the lawfulness ofa pretrial order that the defendant undergotesting for a sexually transmitted disease and the 107 admission into evidenceat trial of the results of such testing. The Court rejected the prosecution’s argumentthat the claim had beenforfeited because the defendant's objection wasnot sufficient. (Id. at p. 291.) Scott does notsupport the proposition for whichitis cited, noris it analogousto appellant’s case in any way. Respondentalso cites People v. Crittle (2007) 154 Cal.App.4th 368, 371, People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072, and People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836. (RB 175-176.) Each of these decisions simply cites People v. Gibson, supra, 27 Cal.App.4th 1466, in finding a challenge to a sentencingorder forfeited by failure to object at the trial level; none contain any analysis of the issue. Because the validity of the relevant dictum in Gibson is undermined by this Court’s opinion in Butler, a fortiori, decisions relying on Gibson, particularly those lacking in any additionalcritical analysis, are of no persuasive valuein assessing appellant’s claim. Further, neither Crittle nor Valtakis concernedrestitution fines or the statute here at issue. (See People v. Crittle, supra, 154 Cal.App.4th at p. 371 [defendant challenged imposition of two $10 fines pursuant to Penal Code section 1202.5]; People v. Valtakis, supra, 105 Cal.App.4th at p. 1069 [defendant challenged $250 probation service fee imposed pursuant to Penal Code section 1203.1b].) Lastly, Valtakis did not even involve a challenge to the sufficiency of the evidence; it concerned a claim thatthetrial court had failed to follow the applicable statutory procedures for determininghis ability to pay. (Id. at pp. 1070-1071.) Respondent’s reliance on People v. Gamache (2009) 46-Cal.4th 680, is similarly unavailing. As explainedin appellant’s openingbrief, the defendant in Gamache arguedthatthetrial court imposedthe restitution fine without considering his ability to pay. (Id. at p. 409.) He did notraise 108 a challengeto the sufficiencyof the evidence. Nor does this Court's decision in People v. Nelson (2011) 51 Cal.4th 198, 227, require a different result. The defendant in Nelson also argued that the trial court had failed to consider his inability to pay, not that the evidence was insufficient. ([bid.) Further, the crime involved in Nelson occurred in 1995 (ibid.), after the 1994 amendmentofthe relevantstatutory provisions as discussed above. Thestatute at issue in Nelson required imposition ofa restitution fine “regardless of the defendant’s ability to pay,” and provided that the court should consider the defendant’s ability to pay only in setting the amountof the fine. (Stats. 1994, c.1106 (A.B. 3169), § 3, eff. Sept. 29, 1994.) Thus, both Nelson and Gamacheare inapposite. Allowing appellant to challengehis restitution fine for sufficiency of the evidence will not unleash a torrent of similar challenges becausethe version ofthe statute here at issue was in existence for only two years. In September of 1992, Government Code section 13967 was amendedto add the language “subject to the defendant’s ability to pay.” (Stats. 1992, c. 682 (S.B. 1444), § 4, eff. Sept. 14, 1992.) As respondent notes, the previous version ofthat statute did not even mention the defendant’s ability to pay. (RB 178,citing People v. McGhee (1988) 197 Cal.App.3d 710, 715.) In 1994,the provisions of Government Code section 13967 pertaining to restitution were shifted to Penal Code section 1202.4. (Stats. 1994, ch. 1106, § 2; People v. Barnett (1998) 17 Cal.4th 1044, 1182,fn. 100.) Neither the 1994 version of Penal Code section 1202.4 norlater versions of that statute condition imposition ofa restitution fine on the defendant’s ability to pay. (Stats. 1994, c. 1106 (A.B. 3169), § 3, eff. Sept. 29, 1994.) Thus, permitting appellant’s challenge would open the appellate door only to those individuals whose crimes occurred between September14, 1992, 109 and September 29, 1994, who were ordered to paya restitution fine and whosechallenge to that order has not already been decided on appeal. That groupis notlikely to belarge. For the foregoing reasons, appellant claim has not been forfeited, and this Court should consider on the merits appellant’s challenge to the restitution fine based on the insufficiency of the evidence ofhis ability to pay. B. The Evidence WasInsufficient to Support the Trial Court’s Implied Finding of Ability to Pay In the opening brief, appellant showed that the record beforethetrial court indicated thatat the timeoftrial, appellant was indigent and that once sentenced to death, he wouldnot be permitted to work. (AOB 322.) Appellant argued that therefore, the evidence before the trial court was insufficient to support the trial court’s implied finding of appellant’s ability to pay a restitution fine. (AOB 322.) Respondent doesnot dispute thatat the time of trial, appellant was indigent. However, respondent contendsthat the evidence before the court showedthat appellant had future earning capacity. (RB 180.) Respondent’s argumentflies in the faceofthe fact that at the time of the order, the court had just sentenced appellant to death. (25 RT 8469-8471.) Respondentrests its argument onthe fact that the evidence introducedattrial indicated that appellant had worked steadily when notin prison and that he had workedin the laundry facility when incarceratedat Folsom State Prison before the convictions and sentence in this case. (RB 180.) However, there was ample evidenceinthetrial record showing that condemned inmates are not permitted to work. (24 RT 83 00.) Respondent points to no evidence to the contrary, and there is none. Evidencethat 110 appellant had worked when notin prison wasirrelevant because the sentence meted out by the court eliminated the possibility that appellant would ever be released. Evidence that he worked when incarcerated under a sentenceof less than death did notindicate that he would be permitted to do so while awaiting his execution. Lastly, the testimony of James Park, former associate warden of San Quentin State Prison and expert in the operations of the California Department of Corrections, affirmatively established that in California, death row inmates are not permitted to work. — (24 RT 8300.) The CaliforniaDepartment of Corrections and Rehabilitation does not allow inmates who are sentenced to death to work. (See http://sojo.net/magazine/20 12/09/ending-death-penalty [Death row prisoners are generally not allowed to work”); http://www.californiapeopleoffaith.org/woodford-interview.html [death row inmatesare not allowed to work in prison”; see also Pen. Code, § 2933.2 (“any person convicted of murder, as defined in Section 187, shall not accrue any [worktime] credit”.) Asset forth morefully in appellant’s openingbrief, the record before the trial court at the time of sentencing established that appellant was indigent. The record provided no evidence that once sentenced to death, appellant would be able to work or earn money in the future. On the contrary, the evidence affirmatively showed that appellant would not be permitted to work, and no evidence to the contrary was proffered or presented. Thetrial court’s restitution fine must beset aside because of insufficient evidence to support the implied finding of appellant’s ability to pay. ill C. Conclusion | For the reasonsset forth here and in appellant’ s opening brief, the restitution fine must be vacatedin its entirety becausethetrial court, having Just sentenced appellant to death, had insufficient evidencebeforeit of appellant’s ability to pay. If, however, this Court should reject appellant’s challenge to therestitution fine as a whole, that fine must, as respondent concedes, be reduced by $4,000, the amountofvictim restitution ordered. // // // 112 CONCLUSION For all of the reasons stated above, as well as for the reasons stated in Appellant's Opening Brief on automatic appeal, the entire judgment of conviction and sentence of death in this case must be reversed. DATED:June 14, 2013 Respectfully submitted, MICHAEL J. HERSEK State Public Defender febl ROBIN KALLMAN Senior Deputy State Public Defender Attorneys for Appellant CERTIFICATE OF COUNSEL (Cal. Rules of Court, rule 8.630(b)(2)) [, Robin Kallman, am the Deputy State Public Defenderassigned to represent appellant Charles Case in this automatic appeal. I conducted a word countofthis brief using our office’s computer software. On thebasis of that computer-generated word count, I certify that this brief is 31,326 wordsin length. Dated: June 14, 2013 he iD ROBIN KALLMAN Attorney for Appellant 114 DECLARATION OF SERVICE Re: People v. Charles Case California Supreme Court No. S057156 I, NEVA WANDERSEE,declare that I am over 18 years of age, and not a party to the within cause; my business address is 111] Broadway, Suite 1000, Oakland, California, 94607. A true copy ofthe attached: APPELLANT’S REPLY BRIEF on eachofthe following, by placing same in an envelope addressed (respectively) as follows: Office of the Attorney General Charles Case Attention: Jennevee H. DeGuzman P.O. Box K28300 1300 I Street San Quentin, CA 94974 P.O. Box 944255 Sacramento, CA 94244-2550 California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105 Each said envelope was then, on June 14, 2013, deposited in the United States Mail at Oakland, California, in the county of Alameda, in which I am employed, with the postage thereonfully prepaid. I declare under penalty ofperjury that foregoing is true and correct. Signed on June 14, 2013, at Oakl DECLARANT
