PEOPLE v. McCURDYAppellant’s Opening Brief Argument VIIICal.July 13, 2006 S061026 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SUPREME COURT PEOPLE OF THE STATE OF CALIFORNIA, JUL 13 2006 Plaintiff and Respondent, Kings Co. Frederick K. Ohirich Clerk Sup.Ct. ——BEBUTY — Vv. No. 95CM5316 GENE ESTEL McCURDY, Defendant and Appellant. N e t e e N e e e e N e e e a e e e e e APPELLANT’S OPENING BRIEF On Automatic Appeal from a Judgment of Death Renderedin the State of California , Kings County ARGUMENT Vil (Pages 221-253) (HONORABLE PETER M. SCHULTZ, JUDGE,of the Superior Court) MICHAEL J. HERSEK State Public Defender GARY D. GARCIA Deputy State Public Defender Cal. State Bar 157612 221 Main Street, Tenth Floor San Francisco, CA 94105 Telephone: (415) 904-5600 Attorneys for Appellant DEATH PENALTY — S061026 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Kings Co. Sup.Ct. No. 95CM5316 Plaintiff and Respondent, ve GENE ESTEL McCURDY, Defendant and Appellant. APPELLANT’S OPENING BRIEF On Automatic Appeal from a Judgment of Death Renderedin the State of California , Kings County ARGUMENT Vil (Pages 221-253) (HONORABLEPETER M. SCHULTZ, JUDGE,ofthe Superior Court) MICHAEL J. HERSEK State Public Defender GARY D. GARCIA Deputy State Public Defender Cal. State Bar 157612 221 Main Street, Tenth Floor San Francisco, CA 94105 Telephone: (415) 904-5600 Attorneys for Appellant TABLE OF CONTENTS Page ~ ARGUMENT..2.0.ecence eet t eet eee ees 221° VU THE TRIAL COURT VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS BY DENYING A NEW TRIAL ON GUILT WHEN PRESENTED WITH NEWLY-DISCOVERED EVIDENCE THAT A THIRD PARTY CONFESSED TO ABDUCTING AND KILLING MARIA PICENO AND BY EXCLUDING THE CONFESSION AS MITIGATING EVIDENCE AT THE PENALTY PHASE.............00 000 ccc cece eeeees 221 A. Factual Background ............ 00202 c eee eee eeeee 221 B. | The Trial Court Committed Reversible Error By Denying Appellant A New Trial ................. 227 1. Applicable Legal Standard For New Trial ....... 227 2. Bales’s Confessions Were Admissible As Declarations Against Interest (Evid. Code, § 1230) ......... Dee c eee ene teen eee eas 228 3. The Trial’s Denial OfA New Guilt Trial Constituted Reversible Error UnderState And The Federal Constitution ................ 232 - C. Even IfA New Trial On Guilt Was Not Required, The Trial Court Prejudicially Erred In Excluding Bales’s Confession As Mitigating Evidence At The Penalty Phase .......... 0.00.00 cece cece cee eee 237 1. The Trial Court Disregarded Well-Settled California Law Permitting A Defendant To Present Evidence In Support OfA “Lingering Doubt” Theory ........... 0.000.000 cee eae 238 TABLE OF CONTENTS Page In Re Gay, Decided After TheTrial In This Case, Does Not Require A Different Result ......... 240 Evidence of Bales’s Confessions Was Relevant Under Both Factor(a) and Factor (k) OfPenal Code Section 190.3 ............ 244 Exclusion Of Bales’s Confessions Violated Appellant’s State And Federal Constitutional Rights 0.0... 0 eeeeee teeta 246 Because The Trial Court’s Error Was Prejudicial, Appellant’s Death Sentence Must Be Reversed ..........2. 0 cee eee ee eee eeeee 252 1 TABLE OF AUTHORITIES il Pages FEDERAL CASES Agostiniv. Felton (1997) 521 US. 20320ccceee eee eees 241 Atkins v. Virginia (2002) 536 US. 204 occec ccc cece eee e eee 246 Caldwell v. Mississippi . (1985) 472 U.S. 320..........ccceee e eee e eens 251 California v. Ramos (1983) 463 US. 992 ccece cece eee eees 251 Chambers v. Mississippi (1973) 410 US. 28420.235, 249, 250, 252 Chapman vy.California (1967) 386 U.S. 182.0.been eeee 253 Chia v. Cambra (9th Cir. 2004) 360 F.3d 997 236 Crane v. Kentucky (1986) 476 ULS. 683220s234, 235, 236 | Franklin v. Lynaugh (1988) 487 U.S. 164.....Me ee ee eee etree a neta enews +. 242 Gardnerv. Florida (1977) 430 U.S.349cececece . . 246, 249 Green v. Georgia (1979) 442 US.95occe ee 246, 249, 250 TABLE OF AUTHORITIES Pages Hicks v. Oklahoma (1980) 447 U.S. 343 200.eetee eee 237 Johnsonv. Mississippi (1987) 486 U.S.578 2.0etenee 246, 250 Lankford v. Idaho (1991) SOO U.S. T10cnet251 Lockett v. Ohio (1978) 438 U.S. 586 2...tenes passim Oregon v. Guzek (2006) U.S.__, 126 S.Ct. 1226.00.20... .0 0.22 eee. 243, 247 Penry v. Lynaugh (1989) 492 U.S. 302 .ccet eee 246, 250 Saffle v. Parks (1990) 494 US. 48420cccnn eens 250 Skipper v. South Carolina (1986) 476 U.S. 1 cctenes 246, 252 Tennard v. Dretke . (2004) 542 U.S. 274 2.cccece e nee 246 United States v. Cronic (1984) 466 U.S. 64820eceee ees 236 Woodson v. North Carolina (1976) 428 U.S. 280 2...ectte251 iv TABLE OF AUTHORITIES Pages STATE CASES Brownv. Kelly Broadcasting Co. (1989) 48 Cal.3d 711 00.cece cence cence, , 24] Ginns v. Savage (1964) 61 Cal.2d 520 2.0eeee eens 241 , Inre Clyde K. (1987) 192 Cal.App.3d 710 2.0.0... cece cece cece eee eee 231 In re Gay (1998) 19 Cal.4th 771 2...weet e cece ete ee en eee 240, 251 In re Kelly (1983) 33 Cal.3d 267 2.0...ecece ees 236 People v. Alcala (1992) 4 Cal.4th 742 2.ccceee eeeee passim People v. Anderson (1987) 43 Cal.3d 1104 22...ates 239. People v. Badgett (1995) 10 Cal.4th 330 20...ecece ees 231. People v. Blakely (2000) 23 Cal.4th 82 200.ceceees ... 238 People v. Brown (1988) 46 Cal.3d 432 200ccc cece cee eee neces 253 People v. Cole (1979) 94 Cal.App.3d 854 20.cece cece cece eee 236 TABLE OF AUTHORITIES Pages . People v. Cox (1991) 53 Cal.3d 618 2...ceceeee 242, 246 People v. Davenport (1985) 41 Cal.3d 247 2.0.cece239, 241 People v. Davenport (1995) 11 Cal.4th 1171 20.eeeee 239, 243, 246 People v. Davis (1995) 10 Cal.4th 463 20.eeeteens 228 People v. Douglas (1990) 50 Cal.3d 468 22...cette eee 231 People v. Dyer (1988) 45 Cal.3d 26 20.0.ete228 People v. Easley (1983) 34 Cal.3d 858 0...ene239 People v. Easley (1988) 46 Cal.3d 712 2...eeeee nee 239 Peoplev. Edwards (1991) 15 Cal.3d 787 0...eee244, 245 People v. Evers . (1992) 10 Cal.App.4th 588 oo ccc eveeeeeeeeeeeeeeeeeee. 233 Peoplev. Fierro (1991) 1 Cal4th 173 20cnet239 People v. Flores (1983) 144 Cal.App.3d 459 2.00.ceene eee 230 vi TABLE OF AUTHORITIES Pages People v. Griffin (2004) 33 Cal.4th 536 239 People v. Hall (1986) 41 Cal.3d 826.00...eee 233, 23 People v. Harris (2005) 37 Cal.4th 310 20.ccccence cece ee, 249 People v. Hawkins (1995) 10 Cal.4th920 ©... 0000002.eee eee eee 238, 241, 243, 246 People v. Hill- (1967) 66 Cal.2d 536 2.0.eeee c eee e ee ees 230 People v. Horton (1995) 11 Cal4th 1068 2.0...eeeeee 246, 250 People v. Kaurish (1990) 52 Cal.3d 648 .......... See eee cece eens 249, 250 People v. Laino a ; _ ne (2004) 32 Cal.4th 878 2000.ccence, 238 People v. Lasko (2000) 23 Cal4th 101 2...ceecee eee nes, 238 People v. Lohbauer . (1981) 29 Cal.3d 364 22ceceence eee ee 236 People v. Lucas (1995) 12 Cal.4th 415 occeee eee ee 229 People v. Lucero (2000) 23 Cal.4th 692 200.cece cence eens 245 vil TABLE OF AUTHORITIES Pages People v. Martinez (2000) 22 Cal.4th 106 2.0...eeeeee 241 People v. Martinez (1984) 36 Cal.3d 816 2...eeeens 235 People v. McGarry (1954) 42 Cal.2d 429 000cee228, 232 People v. Memro (1995) 11 Cal.4th 786 .............0.04.Lecce ence rece ee eee 242 People v. Minnick (1989) 214 CalApp.3d 1478 0.0.0.eens 235 People v. Nicolaus (1991) 54 Cal.3d 551 ..... Leb eee e eee ence e et neeeeees 245 People v. Partida (2005) 37 Cal.4th 428 .........See 235-237, 251 People v. Randle (1982) 130 Cal.App.3d 286 2.0.0.0... 0.2 e eee eeecece eee eee 235 People v. Rincon-Pineda (1975) 14 Cal.3d 864 2.0.eeeeens 244 People v. Smith (2005) 35 Cal.4th 334 2...cceee 244, 245 People v. Terry (1964) 61 Cal.2d 137 2...ene_ passim People v. Wade (1995) 39 CalApp.4th 1487 2.0...ecnee 232 Vili TABLE OF AUTHORITIES Pages . People v. Wader (1993) 5 Cal4th 610 202.eee 241, 246 People v. Wells (1996) 12 Cal4th 979oeee cece cee ee, 241 People v. Williams (1962) 57 Cal.2d 263 2...ceceees 228, 232, 235 People v. Williams (1968) 265 Cal.App.2d 888 2.00.0ee,229 People v. Zapien | (1993) 4 Cal.4th 929 oocece cece eee ees 240 Trope v. Katz (1995) 11 Cal.4th 2742ccece eee c cece, 241 STATUTES Evid. Code, §§ 225 Lk eeebee ce eee ee eee e eee 228 240o 229 402cccccc ence eaes 223 1200 occeee cence eens 228 1230 olecee eee ences passim - Pen. Code, §§ 190.3 2.cececee eee passim 288ccccece eens ...222 118) Le ee 227, 237 CONSTITUTIONS Cal. Const., art. I, §§ Tic ccc cece cence eee e ce eeeecas 235 LSccc cee cece eens 235 a235 1X TABLE OF AUTHORITIES Pages ~ Cal. Const., art. VI § 13 oo. cceccceeceec ec ec eee ee ence ences 235 U.S. Const., Amends. 6 cece eee eee 235, 247, 249, 250 a246, 247, 248, 250 14 occcette eee 235 TEXTS AND OTHER AUTHORITIES Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think? (Oct. 1998) 98 Colum.L. Rev. 1538 ..........22 02.22 e eee eee.. 253 Koosed, Averting Mistaken Executions By Adopting the Model Penal Code’s Exclusion ofDeath in the Presence ofLingering Doubt (2001) 21 N. U1. U.L. Rev. 41 ..............0..0005.eect ee eee 253 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, §§ 91 oo...ees228, 233 Vu THE TRIAL COURT VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS BY DENYING A NEW TRIAL ON GUILT WHEN PRESENTED WITH NEWLY- . DISCOVERED EVIDENCE THAT A THIRD PARTY CONFESSED TO ABDUCTING AND KILLING MARIA PICENO AND BY EXCLUDING THE CONFESSION AS MITIGATING EVIDENCE AT THE PENALTY PHASE A. Factual Background | During the guilt phase ofhis trial, appellant presented evidence that | there were numeroussimilarities between the offenses against Maria Piceno and those against Angelica Ramirez. (14 RT 2406-2412, 2445-2449 2452- 2455.) Amongother things, both Maria and Angelica were Hispanic; the twogirls were ofsimilar age, height and weight; they were both abducted from public places; they were both abducted in the month of March; and both were both found in waterways near Highway 99. (16 RT 2775-2780.) Appellant argued that, in light of those similarities, the fact that he had not committed the offenses against Angelica suggested that he had not committed the offenses against Maria either. (Jbid.) The jury obviously rejected this theory, for it found him guilty of the charged offenses and found the special circumstanceallegation to be true. (12 CT 3412-3413.) However, on February 3, 1997, after the jury had retunedits guilt phaseverdicts but before the penalty phase commenced, the prosecution advisedthetrial court and defense counsel that a suspect, Donald Bales, had confessed to the abduction and murder ofboth Angelica and Maria, although he had subsequently recantedasto the latter. (18A RT 2948- 221 2950.)' The prosecutor stated, “[E]verybody in law enforcement apparently believes for good reasonthat it is the person who did [the Ramirez] killing. - He’s not a crank who has come forward.” (18A RT 2949-2950.) Another prosecutor elaborated, “[Bales] appears to have information that’s never been made public, even in our trial about the murder.” (18A RT 2950.) Defense counsel argued that newly discovered evidence ofactual innocence should be considered by the jury at a new guilt phase, and pointed outthat, at the penalty phase, a defendant is permitted to argue that thereis “lingering doubt”as to his guilt. (18A RT 2950-2952.) . The following day, appellant explained that Bales, who was in custody on an unrelated charge of forcible oral copulation pursuant to Penal Codesection 288, subdivision (c), had confessed to Angelica’s kidnap and murder. Bales had told the police that he met Angelica at a swap meet. He forced herinto his car and droveto a location near Pixley, where her body was later found. There, he removedherclothing from below the waist and raped her. Finally, he strangled her and left her body in the water. (14 RT 2449; 20 RT 2985-2986.) Bales also had told police that he suffered from a sexual compulsion. (20 RT 2986.) During the same interview, Bales was asked whether he had anything to do with the killing ofa little girl from Lemoore(i.e., Maria). ' Becausethetrial court ordered that details relating to the Ramirez investigation were to remain sealed (see 26A RT 3274-3275), Volumes 18A, 20, 24 and 26A ofthe Reporter’s Transcript and Exhibits AA through GG are sealed. Accordingly, appellant has filed a motion requestingthat the instant argumentbefiled underseal; in the alternative, appellant moves that this Court order that the transcripts and exhibits be unsealed andthat appellant be permitted to file this argumentas a regular part of his opening brief. 222 Althoughheinitially denied it, he subsequently pausedfora long time, lowered his head, and admitted having killed her. A few minuteslater, he ' recanted that confession. (20 RT 2987.) Appellant noted, however, that Bales had no firm alibi excluding him as a suspect in Maria’s case. (20 RT 2988.) Appellant then explained that the parties were awaiting further information from law enforcement regarding the accuracyofstatements Bales made regarding Angelica’s jewelry, clothing, and the mannerofher death. (bid.) Appellant requested a continuanceofthe penalty phase in order to permit him to investigate the matter for the purposeofpresenting penalty phase evidence; alternatively, he movedfor a new trial. (20 RT 2989-2994.) The prosecution, however, argued that Bales’s confessions had been coercedand weretherefore inadmissible. (20 RT 2995-2999.) The prosecution also suggested that any newly discovered evidence was “urelevant”to the current proceedings and could be raised solely in a motion for a new trial. (20 RT 3003-3004.) On February 10, 1997, the trial court held a hearing, pursuantto Evidence Code section 402, on appellant’s motion for a newtrialor, in the alternative, admission of Bales’s confessions at the penalty phase. Bales was called as a witness, but asserted his Fifth Amendmentrightnotto testify. (24 RT 3060-3062.) | Detective Jess Gutierrez of the Tulare County Sheriff's Office then testified that he had interviewed Bales several times over the previous two weeks. (24 RT 3064.)’ At an interview which tookplace on January 28, * The following exhibits, all of which recorded interviewswith Bales, were admitted for the purposeofthe 402 hearing: AA [videotape of (continued...) 223 1997, Bales initially implicated anotherindividual, Eddie Unias,in Angelica’s disappearance. (24 RT 3064-3065.) Duringthe interview, however, Bales also told Detective Gutierrez that Angelica had been wearing high-heeled shoes andnecklaces,facts which were not commonly known, and which may have been confidential to law enforcement. Bales also claimed that, when Urias engagedin a sex act with Angelica, she was nude from the waist down andher blouse was pulled up to her chest area. Gutierrez had not told Bales that her clothes had been foundin that very condition. (24 RT 3066-3068.) | | In the nextinterview, Bales stated that he had accompanied Urias from the scene of Angelica’s abduction to the location where she was raped and murdered. Priorto that time, Gutierrez had not told Bales where Angelica’s body had been found, although the location had been publicized. (24 RT 3068-3070.) Bales said that Urias also admitted abducting the girl from Lemoore(i.e., Maria) and leaving her body in a Bakersfield creek. (24 RT 3070-3071.) He also stated that Urias drove a white 1988 Chevy S- 10 pickup truck. (24 RT 3072.) The next day, Bales directed police officers to the location where he *(...continued) Bales with investigators at the scene where he said the Ramirez murder occurred, filmed on January 31, 1997, at approximately 12:50 a.m.]; BB [videotape of February 1, 1997, interview]; CC [videotape of February 2, 1997, interview]; DD [audiotape of January 10, 1997, interview], EE [audiotapeoffirst January 28, 1997, interview]; FF [audiotape of second January 28, 1997, interview]; and, GG [videotape of January 30, 1997, interview]). (20 RT 3020-3021; 21 RT 3027-3028; 23 RT 3044-3048; 24 RT 3101.) > Mychael Jackson testified that Maria’s abductor drove a Chevy S- 10 pickup. (12 RT 1920-1921, 1974-1975, 1979.) 224 claimed Urias had left Angelica’s body. It was the location where in fact she had been found. (24 RT 3073-3074.) Again, a numberofdetails ' provided by Bales matchedtheactual facts developed by the police investigation: his description ofthe position and location of Angelica’s body; his description of the condition ofher clothing; his statement that an orange or orangepeels had beenleft at the scene; and his description of where Unias’s truck was parked, which generally matchedthe location where police found tire tracks. (24 RT 3074-3077.) During an interview held on February 1, 1997, Balesstated that he alone had raped and killed Angelica. Hestated that he took earrings and a necklace from Angelica and gavethe necklace to one Marie Cosper. Bales described the necklace as a cheap-looking, tarnished gold necklace with an eagle on it. (24 RT 3077.) Duringthatinterview, Bales also stated that he himself had killed the Lemooregirl (i.e., Maria). (24 RT 3078.) After recovering the necklace, Gutierrez showedit to Angelica’s mother, whotold him that it looked exactly like the one her daughter always wore. Whenhe askedherto describe the emblem on the necklace, she said it was an eagle. (24 RT 3078, 3084-3086)" Appellant argued that Bales’s confession as to Maria Piceno during the February 1, 1997, interview constituted a declaration against interest. He argued furtherthat the prior interview should be admitted to provide context for that admission. Finally, appellant madean offer of proofthat * Eric Anderson, an investigator with the Kings County District Attorney’s Office, testified that he had interviewed Angelica’s mother a few days earlier. The purpose ofthe interview apparently was to determinethe manner in which Gutierrez showedthe necklace to her. According to Anderson,the interview was “inconclusive.” (24 RT 3081-3083.) 225 Detective Gutierrez would testify regarding the “points of accuracy”in Bales’s account of the Angelica Ramirez abduction. His testimony would ~ be offered to further establish the reliability of the confession. (24 RT 3087.) The prosecution argued that Bales’s statements regarding Angelica wereirrelevant to the instant case. (24 RT 3088.) Further, the prosecution argued that his confession to Maria’s kidnaping and murder had been coerced and wasthe product of improperly leading questions, and that the January 30, 1997, statement constituted inadmissible and unreliable hearsay. (24 RT 3088-3094.) According to the prosecutor, Bales was asked to provide details about those crimes, but could not. Instead, Bales recanted immediately, claiming he had confessed only because he was confused and scared. (24 RT 3089.) The prosecutor also argued that the officers who interviewed Bales engaged in various coercive tactics: promises of lenient treatment, threats that he would receive the death penalty if he failed to show remorse; and statements that they believed Bales suffered from a mental problem, that he was not responsible for his conduct, that Urias was to blame, and that Angelica’s death was accidental. (24 RT 3089-3091.) The prosecution also made an offer ofproof that: (1) an analyst from the DepartmentofJustice would testify that, based upon serological testing, both Bales and Urias had been excluded as Angelica’s murderer; (2) Urias was working on the daysthe girls disappeared; (3) Bales had an IQ in the mid-70's and functioned at barely above a mentally retarded level; and (4) that the details provided by Bales were in fact inaccurate. (24 RT 3092- 3094.) Appellant respondedthat in the four interviews of Bales priorto. 226 February 1, 1997, he was not subjected to any overbearing interrogation. (24 RT 3097.) Although appellant allowed that the police may have engaged in somecoercivetactics during the February | interview,he argued that, for the followingreasons, such tactics did not compromise the confession as to Maria: (1) any implied promises involved in the confession as to Angelica Ramirez were specific to that case; (2) nothing the investigators said suggested that he would receive more lenient treatmentifhe also confessed to the crimes against Maria; and(3) to the extent the issue wasthereliability of Bales’s confessions, it was significant that he had provided details of the crimes that were not knowntothe public. (24 RT 3097-3100.) The trial court denied appellant’s motion for a new trial and excluded the proffered evidence for purposes ofthe penalty phase. The court foundthat Bales’s confessions were involuntary andunreliable. The trial court also ruled that, because the confessions were inherently unreliable, they were not admissible as declarations againstinterest under Evidence Code section 1230. Finally, the trial court sustained the prosecution’s relevanceand hearsay objections. (24 RT 3103-3115.) As shown below,thetrial court abused its discretion by denying appellant’s meritorious new trial motion and excluding the Bales evidence from the penalty phase, depriving him of his state law and federal constitutionalrights. | | | B. The Trial Court Committed Reversible Error By Denying Appellant A New Trial 1. Applicable Legal Standard For New Trial Penal Codesection 1181, subdivision (8), authorizes the trial court to grant a new trial “[w]hen new evidenceis discovered material to the 227 defendant, and which he could not, with reasonable diligence, have discovered and producedatthetrial.” The standard of review for denial of ~ anew trial motion is whetherthetrial court abusedits discretion. (People v. Davis (1995) 10 Cal.4th 463, 524.) In determining whetherthe trial court abusedits discretion in denying a motion for newtrial on the ground of newly discovered evidence, “each case must be judged from its own factual background.” (People v. Dyer (1988) 45 Cal.3d 26, 50.) This Court has held that, in ruling on a motion for a new trial on the ground of newly discovered evidence, it must appear that the evidence presented is: (1) newly discovered and material in nature; (2) not merely cumulative; (3) such that a different verdict would probably result and that the new evidence could not have been producedat the previoustrial; (4) admissible in a court of law; and (5) that these facts have been shownbythe best evidence of which the case admits. (See, e.g., People v. Williams (1962) 57 Cal.2d 263, 270; People v. McGarry (1954) 42 Cal.2d 429, 433; see also 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, §§ 91, 93, pp. 122-126.) 2. Bales’s Confessions Were Admissible As Declarations Against Interest (Evid. Code, § 1230) Evidence Code section 1200 codifies the hearsay rule and provides in relevantpart: (a) “Hearsay evidence”is evidence of a statement that was made other than by a witness while testifying at the hearing - andthatis offered to provethetruth ofthe matterstated. (b) Except as provided by law, hearsay evidenceis inadmissible. (See also Evid. Code, § 225 [defining “Statement” as “(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a 228 substitute for oral or written verbal expression”].) An exception to the hearsay rule is codified in Evidence Code section 1230, which provides: Evidenceof a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, wasso far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk ofcivil or criminal liability, or so far tended to render invalid'a claim by him against another, or created such a risk ofmaking him an objectofhatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have madethe statement unless he believed it to betrue. The proponentof evidence proffered under section 1230 must show “that the declarant is unavailable, that the declaration was against the declarant’s penalinterest, and that the declaration wassufficiently reliable to warrant admission despite its hearsay character. [Citation.]” (Peoplev. Lucas (1995) 12 Cal.4th 415, 462.) A review of the record demonstrates that thecriteria set forth in section 1230 were metin this case. First, Bales was unavailable as a witness because he invoked his privilege againstself-incrimination. (24 RT 3058-3062.) Evidence Code section 240, subdivision (a)(1), provides that a witness whois “[e]xempted or precluded onthe groundofprivilege from testifying” is deemed “unavailable as a witness.” Accordingly, a witness who has invokedthe self-incrimination privilegeis unavailable within the meaning of section 240. (People v. Williams (1968) 265 Cal.App.2d 888, 892-893.) Second,as the trial court apparently conceded (24 RT 31 11), there can be no question that Bales’s confessions were contrary to his penal 229 interest.° Bales’s statements regarding the abduction and murder of two young children, and the sexual molestation of one of them, obviously subjected him to “the risk of . . . criminal liability” and “created . . . a risk of making him an object ofhatred, ridicule, or social disgrace in the community.” (Evid. Code, § 1230.) Finally, Bale’s confessions, particularly his confession to the abduction and murder of Maria, were sufficiently reliable to warrant admission. Althoughthetrial court concludedthat the interviewing officers had madeboth threats and promises to Bales (24 RT 3097-3101, 3111- 31 14), the fact that Bales had provided details about the Ramirez murder which were not knownto the public (24 RT 3066-3068, 3072-3078) demonstrated the reliability of his confessions. Moreover, because the interviewers’ conduct did not induce Bales’s confessions, the authoritycited by the trial court in finding his confessions to be coerced wasinapposite. (24 RT 3106-3111, citing People v. Hill (1967) 66 Cal.2d 536, 549 [a suspect’s statement will not be deemedinvoluntary unless it was induced by police conduct]; People v. Flores (1983) 144 Cal.App.3d 459, 469-470 [same].) Defense counsel pointed out that, on January 10, 28, and 30, 1997, the authorities advised Bales of his Miranda rights, and Bales waived those rights. Further, according to defense counsel, there was no indicia of undue | pressure or coercion in obtaininghis statement at any of those interviews, or at the interview held at the crime scene. (24 RT 3096-3 097.) > To theextent the trial court suggested that Bales would not have recognized that confessing to Maria’s kidnaping and murder exposed him to further prosecution (24 RT 3114-3115), its suggestion defies logic. Indeed, the fact that Bales recanted the confession demonstrates his awareness of the ramifications of his confession. 230 Finally, the confession as to Maria’s murder was insulated from any supposed coerciveness as to theoffenses against Angelica. (24 RT 3099- ~ 3100.) As defense counsel noted, any implied promises involved in the confession as to Angelica Ramirez were specific to that case, and nothing the investigators said suggested that he would receive more lenient treatmentifhe also confessed to the crimes against Maria. (24 RT 3097- 3100.) Therefore, it cannot be inferred that the investigators’ conduct induced the confession as to Maria.° At the very least, then, his confession to the abduction and murder of Maria should have been admitted. . The trial court erroneously relied upon People v. Badgett (1995) 10 Cal.4th 330, People v. Douglas (1990) 50 Cal.3d 468, and In re Clyde K. (1987) 192 Cal.App.3d 710,in ruling that Bales’s confession should be excluded because it was coerced and therefore unreliable. In Peoplev. Badgett, supra, 10 Cal.4th at pp. 343-345, this Court reaffirmedthat a 6defendant’s “relatively limited”right to exclude evidence underthe due process clause on the groundthat it was involuntarily obtained from a third party requires showingthat the third party’s statement was unreliable. (See also Peoplev. Douglas, supra, 50 Cal.3dat pp. 499-502 [same]; Inre Clyde K., supra, 192 Cal.App.3d at p. 718, overruled to the extentit is inconsistent with People v. Badgett, supra, 10 Cal.4th at p. 350.) In so holding,this | Court emphasized that where the statementat issue was madebya third party (as opposedto the defendant), the sole concern is the reliability of the statement. (See People v. Badgett, supra, 10 Cal.4th at pp. 347-348.) It followslogically, then, that wherethe record reveals indicia of the ° The trial court failed to address the reliability of Bales’s statements independently ofthe issue ofpotential coercion. (24 RT 3103-31 15.) 231 reliability of a third party’s statement, such statement must be admitted. Underthese circumstances, Bales’s confessions were admissible “ pursuant to Evidence Code section 1230. 3. The Trial’s Denial OfA New Guilt Trial Constituted Reversible Error Under State Law And The Federal Constitution As noted above, a motion for a new trial made on the ground of | newly discovered evidence should be granted where the evidence presented is: (1) newly discovered and material in nature; (2) not merely cumulative; (3) such that a different verdict would probably result and that the new evidence could not have been producedat the previoustrial; (4) admissible in a court of law; and (5) that these facts have been shown bythe best evidence of which the case admits. (People v. Williams, supra, 57 Cal.2d at p. 270; People v. McGarry, supra, 42 Cal.2d at p. 433.) Applying these criteria to the instant case,it is clear that the trial court abused its discretion in denying appellant’s motion for a newtrial. First, as the trial court acknowledged, Bales’s confessions comprised newly discovered evidencethat was not available to the defense at the guilt _ phase. (24 RT 3104.) Bales did not confess to the murder of Maria Piceno until after the guilt verdicts had been reachedin the instant case. (24 RT 3077-3078.) In fact, from the record it appears the defense wasunaware that Bales had been interviewed by Tulare County authorities until after the guilt phase in appellant’s case had ended. (20 RT 2989-2994.) Therefore, appellant could not have uncoveredthis evidenceearlier. Moreover, the evidence was clearly material, that is, “substantial, essential, relevant, or pertinent.” (People v. Wade (1995) 39 Cal.App.4th 1487, 1496.) Surely, the jury would have understood that Bales’s confession to the kidnap and murder of Maria Piceno was“substantial, 232 essential, relevant, or pertinent”to the issue of appellant’s guilt. The ultimate question for the jury at the guilt phase was whetherthe prosecution had proved beyonda reasonable doubtthat appellant had kidnaped and murdered Maria. Evidence that Bales had confessed to the crimes constituted powerful “direct or circumstantial evidence linking[a] third person to the actual perpetration of the crime[s]” and thus, without question, was material. (People v. Hall (1986) 41 Cal.3d 826, 833.) Moreover, contrary to the prosecution’s position (24 RT 3088), Bale’s confessionsto the offenses against Angelica Ramirezwere also relevant to the instant case. The evidence would havereinforcedthe defense evidence regarding the similarities between the twocases, not only making the defense seem moreplausible, but identifying a specific third party suspect, Undoubtedly, the jury would have viewed evidence that a third party had confessed to the offenses against Maria, andthathis confessions contained details not known to the general public, as “substantial, essential, relevant, or pertinent” to the question of appellant’s guilt. (See, e.g., 6 Witkin & Epstein, Cal. Criminal Law, supra, § 93, p. 125 [“[F]air consideration of competent new evidencetendingto negate guilt is essential to any enlightened system ofcriminaljustice.”].) Second, for the same reasons, Bales’s confessions werenot- cumulative, that is, “repetitive of evidence already before the jury.” (People v. Evers (1992) 10 Cal.App.4th 588, 599, fn. 4.) They far exceeded in detail, scope and probative value the third party culpability evidence presented at guilt phase (ie, examples of similarities between the two cases and evidence that appellant had been excluded as a suspect in the Ramirez case (14 RT 2406-2412, 2445-2449, 2452-2455; 16 RT 2775-2780). Again, the new evidence establishedthata specific individual (Bales) had 233 confessed to the offenses against Maria and Angelica, and even provided details not knownto the public. | Third, it is at least probable that a different verdict would have resulted had the jury heard Bales’s confessions. Such evidence would have been likely to raise a reasonable doubtin at least one juror’s mind, especially given the other problems with the prosecution’s case, which are detailed in ArgumentsII through VII, which appellant incorporates by reference here. Fourth, as noted above, the confessions, particularly the confession as to the offenses against Maria, were admissible as declarations against interest. (Evid. Code, § 1230.) Finally, evidencerelating to Bales’s confessions came primarily from Detective Jess Gutierrez of the Tulare County Sheriff's Office, who had interviewed him and wastherefore present when Bales confessedto the crimes. (24 RT 3062-3078, 3084-3086.) In light of Bales’s invocation of his Fifth Amendmentright notto incriminate himself (24 RT 3058-3062), the testimony of Detective Gutierrez constituted the best evidenceavailable. In this way, appellant satisfied all the criteria for obtaining a new trial based on newly discovered evidence. Nevertheless, the trial court denied appellant’s motion because it deemed Bales’s confessions to be unreliable. (24 RT 3103-3115.) This ruling clearly violated well-established high court precedent. Asthe United States Supreme Court has explained, the credibility of a confessionis for the jury to determine. (Crane v. Kentucky (1986) 476 U.S. 683, 688.) Thus, the jury is to decide the weight and accuracy of a confession. (Ibid.) This is especially true where,as here, the confession is supported by indicia of reliability. (See id. at pp. 690-691.) Therefore, by ruling on thereliability of Bales’s 234 confession,the trial court in this case usurped a factfinding function that should have been carried out by the jury. (24 RT 3103-3115.) Where,as here, the “newly discovered evidence contradicts the strongest evidence introduced against the defendant,” the trial court abuses its discretion in denying a motion for a newtrial. (See People v. Minnick (1989) 214 Cal.App.3d 1478, 1482.) Because the denial of appellant’s | motion constituted a miscarriage ofjustice, the error warrants reversal. (Cal. Const., art. VI, § 13; People v. Martinez (1984) 36 Cal.3d 816, 823 [defendantentitled to newtrial after newly discovered evidence corroborated his exculpatory explanation for the presenceofhis palm print at the crime scene]; People v. Williams (1963) 57 Cal.2d 263, 275 [trial court abusedits discretion in denying motion for new trial where, among other things, the defendant had proffered newly discovered evidence,i.e., affidavits refuting the victim’s story in its entirety]; People v. Randle (1982) 130 Cal._App.3d 286, 293-294 [defendant entitled to new trial where, following conviction on sexual assault, he produced affidavits impugning victim’s credibility].) Moreover,as a result of the trial court’s denial of appellant’s motion for a newtrial, appellant was precluded from presenting critical third party culpability evidenceat the guilt phase, in violation of his federal constitutional rights to a fair trial and to present a defense. (U.S. Const., Amends. VI, XIV; Cal. Const., art. I, §§ 7, 15, 17; Cranev. Kentucky, supra, 476 U.S.at p. 690 [the federal Constitution guarantees criminal. defendants “a meaningful opportunity to present a complete defense,” rooted in both the Due Process clause of the Fourteenth Amendmentand the Compulsory Process or Confrontation clauses of the Sixth Amendment]; Chambers v. Mississippi (1973) 410 U.S. 284, 302-303 [the exclusion of evidence relating to a third party’s confession to crime for which the defendant was being prosecuted violated the defendant’s due process night - toa fairtrial]; Chia v. Cambra (9th Cir. 2004) 360 F.3d 997, 1003-1008, cert. denied (2005) ___—sU.S.___, 125 S.Ct. 1637; People v. Hall (1986) 41 Cal.3d 826, 831-833; People v. Cole (1979) 94 Cal.App.3d 854, 860 [ruling on merits of Cole’s claim that trial court’s denial of his motion for a new trial denied his constitutional right to a fair trial], disapproved on other grounds in People v. Lohbauer (1981) 29 Cal.3d 364 and Jn re Kelly (1983) 33 Cal.3d 267.) . Thereis little question that appellant would have attempted to introduce Bales’s confessions had they cometo light just a few daysearlier, during the guilt phase. Moreover,it is likely that the trial court would have admitted the evidence. To be admissible, third party evidence “need only be capable of raising a reasonable doubt of defendant’s guilt.” (Peoplev. Hall, supra, 41 Cal.3d at p. 833.) Further, there must be “direct or circumstantial evidence linking the third personto the actual perpetration of the crime. (Jbid.) As demonstrated above, Bales’s confessions were sufficiently reliable to meet the criteria set forth in Hall. However, due to the mere happenstance that the confessions cameto light just three days after the guilt verdicts were returned (18RT 2937-2938, 18A RT 2948), appellant was denied the opportunity to offer evidence that was “central to [his] claim of innocence,” and thereforehis right to present a complete defense was rendered “an empty one.” (Crane v. Kentucky, supra, 476 U.S. at p. 690.) As a result of the denial of his new trial motion, appellant was deprived “of the basic right to have the prosecutor’s case encounter and ‘survive the crucible of meaningful adversarial testing.’” (/d. at pp. 690-691, quoting United States v. Cronic (1984) 466 U.S. 648, 656.) 236 Thetrial court’s error in denying the motion also had the legal consequenceofviolating his right to due process. (People v. Partida (2005) ' 37 Cal.4th 428, 436.) As this Court recognized, consideration of such a due process argument on appeal “entails no unfairness to the parties,” who had an opportunity to litigate the matter. (/bid.) Here, the trial court had notice of, and an opportunity to consider, appellant’s motion for a newtrial or, in the alternative, admissionofthe evidenceat the penalty phase. (See Section A, supra.) Finally, the trial court’s arbitrary deprivation of appellant’s right to a new trial undersection 1181, subdivision (8), also violated his federal due processrights. (Hicks v. Oklahoma (1983) 447 U.S. 343, 346.) C. Even IfA New Trial On Guilt Was Not Required, The Trial Court Prejudicially Erred In Excluding Bales’s Confession As Mitigating Evidence At The Penalty Phase Evenifthe trial court did not abuse its discretion in denying appellant’s motion for a newtrial, it erred in excluding Bales’s confessions from the penalty phase. As appellant demonstrates below, the confessions were admissible for the following reasons: (1) they were admissible as declarations against interest under Evidence Code section 1230; and, (2) even if the confessions failed to meet the criteria set forth in Evidence Code section 1230, they were sufficiently reliable to warrant admissionat the penalty phase. In either event, Bales’s confessions constituted significant “lingering doubt” evidence. The trial court’s exclusion of that evidence, therefore, violated appellant’s rights under state law and the federal Constitution to present mitigating evidence, to rebut or mitigate the aggravating evidence, andto a reliable penalty verdict. // | /f 237 1. The Trial Court Disregarded Well-Settled California Law Permitting A Defendant To Present Evidence In Support OfA “Lingering Doubt” Theory In excludingevidence of Bales’s confessions at the penalty phase, . the trial court disregarded well-settled California law that a capital defendant who did not have an opportunity at the guilt phase to adduce specific evidence showing his possible innocence maypresent that evidence at the penalty phase. In People v. Terry (1964) 61 Cal.2d 137, 153, overruled on another ground in People v. Laino (2004) 32 Cal.4th 878, 892, this Court held that the trial court should admit “evidence tending to show defendant’s possible innocenceofthe involved crimes”so that the jury may consider any lingering doubts of his guilt as a mitigating factor in the penalty determination. Since Terry, cases have held that “residual doubt about a defendant’s guilt is something that juries may consider at the penalty phase under California law, and trial court errs if it excludes evidence material -to this issue.” (People v. Hawkins (1995) 10 Cal.4th 920, 966-967, overruled on other grounds in People v. Blakely (2000) 23 Cal.4th 82, 89, and People v. Lasko (2000) 23 Cal.4th 101, 110.) In Terry, which involveda retrial of the penalty phase (id. at p. 140), | this Court pointed out, if the same jury determines both guilt and penalty, the introduction of evidence as to defendant’s asserted innocence is unnecessary on the penalty phase becausethe jury will have heard that evidence in the guilt phase. If, however, such evidence is excluded from the penalty phase[retrial], the second jury necessarily will deliberate in someignorance ofthe issue. (People v. Terry, supra, 61 Cal.2d at p. 146.) No case limits lingering doubt evidence to the evidence introducedat the prior guilt trial. Indeed, 238 the opinionsin severalretrial cases reveal that the defendants did introduce additional exonerating evidence,either as to guilt or as to the truth of the special circumstances, at their penalty retrials. (Compare Peoplev. Anderson (2001) 25 Cal.4th 543, 561, with People v. Anderson (1987) 43 Cal.3d 1104, 1117; People v. Davenport (1995) 11 Cal.4th 1171, 1191- | 1192,’ with People v. Davenport (1985) 41 Cal.3d 247, 256-260; Peoplev. Easley (1988) 46 Cal.3d 712, 719, with People v. Easley (1983) 34 Cal.3d 858, 864-867.)° The same latitude to present additionallingering doubt evidenceis even more appropriate where, as here, evidence casting doubt on the conviction arises after a guilt verdict has been rendered. In this case, no trier of fact, whether a court or a jury, heard evidencethat Bales had confessed to the abductionand murder of Maria Piceno. Thatis, appellant’s jury deliberated the penalty phase in complete ignorance ofthe issue. (Cf. People v. Terry, supra, 61 Cal.2dat p. 146.) another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5. * See also People v. Alcala (1992) 4 Cal:4th 742, where both phases of the trial were heard by the same jury. At the penalty phase “defendant testified on his own behalf(not having doneso at the guilt phase)” and denied committing the murder. (/d. at p. 766.) This Court did notindicate any disapproval of that procedure; it held instead that the exclusion of evidence of wrongful convictions in other capital cases “did not prevent defendant from introducing relevantevidence regarding the circumstances of [the victim’s] death, in an attempt to create a lingering doubt. Indeed, defendant’s own testimony atthe penalty phase, denying the commission of any offense against [the victim], attempted to create such a doubt.” (Jd.at p. 807,italics added; see also People v. Fierro (1991) 1 Cal.4th 173, 203 [noting that the defendanttestified at the penalty phase, but not the guilt phase,ofthe trial].) Accordingly,if, as California law unequivocally holds, lingering doubt may be considered as mitigation, then the defense must be permitted “to introduce evidence giving rise to that doubt. 2. In Re Gay, Decided After The Trial In This Case, Does Not Require A Different Result In In re Gay (1998) 19 Cal.4th 771, 814, this Court held that evidence that does not come within the category ofmitigating evidence which must or may be admitted at the penalty phase under either Penal Codesection 190.3 or the Eighth and Fourteenth Amendments to the United States Constitution is not admissible at the penalty phase becauseit is not relevant to the circumstances of the offense or the defendant’s character and record.’ This holding ignored three independent, butrelated, rules of stare decisis. . First, “the language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.” (Trope v. Katz (1995) 11 Cal.4th 274, * The holding in Gay relies exclusively on the holding in Peoplev. Zapien (1993) 4 Cal.4th 929, 989. In Zapien, the evidence that was excludedbythe trial court was that the defendant had been offered prior to trial a plea bargain that included a sentenceoflife without the possibility of parole, and that the prosecutor (Van Camp) committed misconduct in interviewing a potential witness who did nottestify at trial. In upholding. the rulingofthe trial court, the Zapien court held that “the trial court acted within its traditional authority in excluding evidencerelating to Van Camp’s alleged prosecutorial misconductin interviewing a potential witness who was notcalled to testify, and in excluding evidence ofa plea bargain offered by the prosecution but rejected by defendant” because “(t]he proffered evidence did not bear upon defendant’s character, prior record, or the circumstances ofhis offense and, thus, did not constitute mitigating evidence” under Lockett v. Ohio (1978) 438 U.S. 586. (Peoplev. Zapien, supra, 4 Cal.3d at p. 989.) . 240 284,citations and internal quotation marks omitted; accord, Brownv. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 734-735.) Because this Court in Gay was reviewing a case whichdid not involve new evidencethat was unavailable at the time of the guilt phase, its holding regarding the admissibility of lingering doubt evidence does not govern this case. Second, just as the facts of the case before the court must be considered, so too must the statements of law in the opinion be examined. “Cases are not authority for propositions they do notconsider. [Citation.]” _ People v. Martinez (2000) 22 Cal.4th 106, 118; accord, People v. Wells (1996) 12 Cal.4th 979, 984, fn. 4; Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.) Because the decision in Gay says nothing aboutthe admission of lingering doubt evidencein cases in which the penalty jury did not hear the lingering doubt evidence, and that evidence could not have been discovered and presentedas part of the guilt phase defense, it provides no authority for the exclusion of that evidencein this case. Third, overruling by implication is disfavored (Agostini v. Felton (1997) 521 U.S. 203, 237), and aprecedent cannot be overruled in dictum. (Trope v. Katz, supra, 11 Cal.4th at p. 287.) People v. Terry, supra, 61 Cal.2d at pp. 146-147, 153, held ~ without qualification — that a defendant wasentitled to introduce lingering doubtevidence at a penalty retrial, and that same unqualified holding was repeated in subsequentcases. (E.g., People v. Davenport, supra, 11 Cal.4th at p. 1 193: People v. Hawkins, supra, 10 Cal.4th at p. 966-967; see also People v. Wader (1993) 5 Cal.4th 610, 660-661," People v. Alcala (1992) 4 Cal.4th 742, 766, 807," and ° In People v. Wader, supra, 5 Cal.4th 610, 660-661, this Court held: | (continued...) 241 People v. Cox (1991) 53 Cal.3d 618, 677," all of which holdthatlingering doubt evidenceis admissible at the penalty phase ofa capital case.)"* '°(...continued) Eighth Amendment concerns are satisfied when a capital defendantis not deprived of the opportunity to present evidence on lingering doubt and to have the jury weighthis evidence. “The fair opportunity to present relevant[lingering doubt] evidence and to argue forbearance thereon sufficiently preserves the defendant’s interest in having the jury consider fully all germaneaspects of the offense and the offender... .” [Citations.] _ "' In People v. Alcala, supra, 4 Cal.4th 742, the defendant presented evidenceat the penalty phase “regarding the circumstances of [the victim’s] death, in an attempt to create a lingering doubt. Indeed, defendant’s own testimonyat the penalty phase, denying the commission of any offense against [the victim] attempted to create such a doubt. Defendantalso presented testimony which sought to undermine the prosecution’s theory regarding the gold ball earrings found in the Seattle storage locker.” (/d.at pp. 807.) 2 People v. Cox, supra, 53 Cal.3d at pp. 676-677, was the first case to decide the issue of the admissibility of lingering doubt evidenceat the penalty phase ofa capital trial under the 1978 death penalty law, the law under whichpetitioner’s case wastried. In Cox, this Court, after analyzing the decisions of the United States Supreme Court in Lockett v. Ohio, supra, and Franklin v. Lynaugh (1988) 487 U.S. 164, 177-180, held that a defendant in a capital case “may not be precluded from offering [lingering doubt] evidenceor arguingits relevance in mitigation.” '3 See also People v. Memro (1995) 11 Cal.4th 786, 883, where this Court held: Wehaveheldthat neither the federal nor the state Constitution entitles a defendantto an instruction on lingering doubt. [Citation omitted.] But [t]his is not to say that the jury’s consideration of any such doubt is improper; defendant may urgehis possible innocence to the jury as a factor in (continued...) 242 Therefore, the statements in Gay, which did not address admission of evidenceat a penalty retrial, cannot be viewed as changing therule that Terry established. __ For the purposesofthe instant case,it is significant that this Court has recognized:(1) the right of a defendantto present, and argue the significanceof, “lingering doubt” evidence at a penalty retrial, i.e., to a penalty phase jury which has notpreviously heard guilt phase evidence relating to lingering doubt (People v. Terry, supra, 61 Cal.2d at pp. 145- 147; People v. Davenport, supra, 11 Cal.4th at p. 1193; Peoplev. Hawkins, supra, 10 Cal.4that p. 966-967); and (2) that a defendant maypresent “lingering doubt” evidence at penalty phase over and above what he. presented at the guilt phase (People v. Alcala, supra, 4 Cal.4th at p. 807). - Finally, to the extent the Gay opinion precludes a defendant from presenting evidencein support of a “lingering doubt”defense, the opinion violates his rights to present mitigating evidence under the Eighth Amendment and Due Processclause, at least where the jury has not already had an opportunity to hear that evidence. (Cf. Oregon v. Guzek (2006)_ U.S. __, 126 S.Ct. 1226, discussed in Section C.4, infra) Under these circumstances,the trial court was boundto follow People v. Hawkins, supra, 10 Cal.4th at pp. 966-967, People v. Terry, supra, 61 Cal.2d at pp. 146-147, 153, and other opinions permitting the 9(...continued) mitigation. [Citation omitted.] An instruction ofthe type. given here... , derived from factor (k) of section 190.3, adequately supports a defendant’spresentation of evidence or argument that lingering doubt militates against a verdict of death. [Citation omitted.] (Italics added.) 243 introduction of lingering doubt evidence to a jury that did not have a prior opportunity to hear it. Its failure to do so deprived appellant of his nght “to ~ havehistrial conducted in accordance with the law prevailing at the time.” (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 872.) | 3. . Evidence of Bales’s Confessions Was Relevant UnderBoth Factor (a) and Factor (k) Of Penal Code Section 190.3 Penal Codesection 190.3, factor (a), permits the defense, as well as the prosecution, to introduce evidenceof “[t]he circumstances of the crime ofwhich the defendant was convicted in the present proceeding and the presence of any special circumstances found to be true... .” (People v. Smith (2005) 35 Cal.4th 334, 352.) Pursuantto section 190.3, factor (k), the defendant mayoffer in mitigation “[a]ny . . . circumstance [beyond those set forth in factors (d) through (j)] that attenuates the gravity of the crime even thoughit is not a legal excuse for the crime.” The evidence regarding Bales’s confessions, like any evidence that raises a lingering doubt, was relevant under both factors. Not only were the confessions relevant, but, as . noted above, they were admissible as declarations against interest within the meaning of Evidence Code section 1230. This Court has acknowledgedthat it has adopted an expansive interpretation of factor (a), explaining that “[t]he word ‘circumstances’as usedin factor (a) of section 190.3 does not mean merely the immediate . temporal and spatial circumstances of the crime. Rather, it extends to ‘[t]hat which surrounds materially, morally, or logically’ the crime. {Citation.]” (People v. Smith, supra, 15 Cal.3d atp. 352, quoting Peoplev. Edwards (1991) 15 Cal.3d 787, 833.) Onthat basis, this Court has permitted the introduction of a wide array of evidence, including: the testimony of a clinical psychologist that crimes such as those committed by 244 the defendant are generally committed by sexual sadists whoderive sexual pleasure from carrying out a fantasy involving restraint and molestation of a child victim (People v. Smith, supra, 15 Cal.3d at p. 354); victim impact evidence (People v. Edwards, supra, 15 Cal.3d at pp. 834-835); evidence of a massive five-day search for the defendant after the crime was discovered (id. at pp. 831-832); a photograph of the victim whenalive (People v. Lucero (2000) 23 Cal.4th 692, 714-715); and evidenceof the defendant’s hatred ofhis wife’s religion (People v. Nicolaus (1991) 54 Cal.3d 551, 581). a . | Evidence that a third party had confessed to the charged offenses directly concerned the circumstances of the crimes. That is, evidence that appellant had not committed the crimes directly implicatedthe central circumstances of the crime: what happened, and whodidit? | Similarly, it is highly likely that the jury would have found Bales’s confessions to constitute powerful factor (k) evidence. Appellant’s deathworthiness presupposed and was entirely dependent uponhis guilt of the charged crimes.'* The case in aggravation consisted solely of the | circumstances of the crime, since appellant hadnoprior record. Evidence that, in fact, he had not committed the crimes would have changedradically _ the jury’s picture of appellant — i.e., whether he was in fact the person ; reflected by its guilt verdicts — and whether he deservedthe death penalty. Accordingly, the trial court should have admitted this relevant “ Factor(j) of Penal Code section 190.3 provides that the jury may consider as mitigation the defendant’s “relatively minor”participation in the commissionofthe offense; surely, appellant’s jury would have considered as mitigating evidence that he hadplayed no role whatsoeverin the commission of the offense. 245 evidence. 4. Exclusion Of Bales’s Confessions Violated Appellant’s State And Federal Constitutional Rights Thetrial court’s exclusion of Bales’s confessions, particularly his confession as to the offenses against Maria, violated appellant’s constitutional right to present relevant mitigating evidence underboth state law (People v. Davenport, supra, 11 Cal.4th at p. 1193; People v. Hawkins, supra, 10 Cal.4th at p. 966-967; People v. Wader, supra, 5 Cal.4th at pp. 660-661, People v. Alcala, supra, 4 Cal.4th at p. 807, People v. Cox, supra, 53 Cal.3d at p. 677: People v. Terry, supra, 61 Cal.2d at pp. 146-147, 153) and, in light of the unique circumstances present in this case, the federal . Constitution (Tennard v. Dretke (2004) 542 US. 274, 285; Skipper v. South Carolina (1986) 476 U.S. 1, 7; Lockett v. Ohio (1978) 438 U.S. 586, 614- 616). Thetrial court’s exclusion of the confessions also violated appellant’s constitutionalright to fair and reliable capital sentencing (Penry v. Lynaugh (1989) 492 U.S. 302, 328, overruled on other grounds in Atkins v. Virginia (2002) 536 U.S. 204; Johnson v..Mississippi (1987) 486 U.S. 578, 584; People v. Horton (1995) 11 Cal.4th 1068, 1135) and to due process (Green v. Georgia (1979) 442 U.S. 95, 97; Gardner v. Florida (1977) 430 U.S. 349, 362). | Exclusion of Bales’s confessions violated appellant’s Eighth | Amendmentright to present mitigating evidence. Again, evidence that Bales had confessed to the kidnaping and murder of Maria Piceno, which was admissible as a declaration against interest under Evidence Code section 1230, directly implicated the circumstances of the charged offenses and inevitably would have cast appellant’s character and record in a more favorable light. The probative value of the confessions was especially 246 pronounced given the noteworthy similarities between the Piceno and Ramirez cases. (14 RT 2406-2412, 2445-2449, 2452-2455.) In addition, that Urias possessed a white 1988 Chevy S-10 pickup truck (24 RT 3072) wasanotherintriguing fact, given Mychael Jackson’s testimony that Maria’s abductor drove a Chevy S-10 pickup (12 RT 1920-1921, 1974- 1975, 1979). Therefore, Bales’s confession constitutedcritical mitigating evidence within the meaning ofLockett v. Ohio, supra, 438 U.S. at pp. 614- 616,as well as People v. Terry, supra, 61 Cal.3d at p. 153. . Appellant acknowledges that the United States Supreme Court recently held thatneither the Eighth Amendmentnorthe Fourteenth Amendment granta capital murder defendantthe right to present additional alibi evidence at the penalty phase whichis inconsistent with his prior conviction. (Oregon v. Guzek, supra, 126 S.Ct. at pp. 1230-1233.) However,the high court declared that its holding was a “narrow”one, andit rested uponthree circumstances whichare notall present in this case: (1) although sentencing traditionally concerns how, not whether, a defendant committed the crime, the evidence at issue in Guzek(i.e., alibi evidence) _ concerned only whether, not how, he did so; (2) the parties previously litigated the issue to which the evidenceis relevant, i.e., whether the defendant committed the basic crime; and (3) the negative impactofa rule restricting the defendant’s ability to introduce new alibi evidence was minimized bythe fact that Oregon state law gave the defendant the right to present to the sentencing jury all the evidence of innocence from the original trial. Ibid.) In contrast, appellant’s jury never had an opportunity to consider '® Guzek involved a retrial of the sentencing hearing. (/d. at pp. 2-5.) 247 Bales’s confessions, which did not occur until after the guilt phase had ended. Unlike Guzek, who had the opportunity to present evidenceofhis ~ innocence but simply failed to do so, appellant never had an opportunity to present such evidence. Therefore, when appellant’s jury “litigated”the issue of whetherhe had committed the offenses, it did so without having ~ heard this crucial evidence. Moreover, it was through no fault of appellant that his jury did not hear the evidence. As such, it is inconsequential that appellant’s evidenceofthird party culpability concerned whether, not how, he committed the offenses. . Thus, given its admittedly “narrow” holding, the Guzek Court did not rule that the Eighth and Fourteenth Amendments do not confer a right to present“lingering doubt” evidence where, as here, the jury has not had a meaningful opportunity to consider such evidence.'® To deny appellant an opportunity to present newly discovered evidence of his innocence would elevate interest in finality over fundamental fairness. Appellantis entitled to relief in light of the unique circumstancesofhis case — i.e., a third party’s confession following the guilt phase but before the penalty phase. Thetrial court’s refusal to admit the evidence also violated appellant’s due process and Eighth Amendment nights to rebut or mitigate the aggravating evidence and victim impact evidence. (See Gardnerv. Florida (1977) 430 USS. 349, 362 [defendant’s due process rights were violated by sentencer’s consideration of prosecution evidence that he did '6 In any event, the Court noted that a defendant may present lingering doubt evidence where permitted to do so understate law. (/d. at pp. 2-5.) Such is the case in California, as discussed in Section C.1-3, supra. 248 not have an opportunity to deny or explain]; People v. Harris (2005) 37 Cal.4th 310, 374 [defendant may present evidenceto rebut victim impact testimony].) Because appellant had no history of violent acts or crimes, the circumstancesofthe offense and victim impact testimony comprised the only aggravating evidence against him. With respect to appellant’s deathworthiness, the aggravating nature ofthe prosecution evidence would have been blunted,ifnot eliminated altogether, by the proffered evidence, which would have suggested that he was actually innocentof the charged offenses. The trial court’s ruling that Bales’s confessions were inadmissible denied appellant his constitutional right to rebut aggravating evidence. Even if the confessions constituted hearsay, their exclusion also deprived appellantofa fair trial in violation of the due process clause of the Fourteenth Amendment. (See Chambersv. Mississippi, supra, 410 U.S.at pp. 302-303.) Due process requires the admission ofhearsay evidenceat the penalty phaseofa capitaltrial, even thougha state’s evidentiary rules are to the contrary,“if both ofthe following conditionsare present: (1) the excluded testimonyis ‘highly relevantto a critical issue in the punishment phaseoftrial,’ and (2) there are substantial reasons to assumethe reliability of the evidence.” (People v. Kaurish(1990) 52 Cal.3d 648, 704, quoting Green v. Georgia, supra, 442 U.S. at p. 97; see also Chambers v. Mississippi, supra, 410 U.S. at pp. 302-303.) Therefore, even if Bales’s confessions could not have been admitted at the guilt phase, they were relevant and sufficiently reliable to justify their admissionat the penalty phase, and therefore Eighth Amendment and due process considerations demandedtheir admission. (See Green v. Georgia, supra, 442 U.S.at p. 97; Chambers v. Mississippi, supra, 410 U.S.at pp. 302-303; Peoplev. Kaurish, supra, 52 Cal.3d at p. 704.) 249 Green v. Georgia, supra, 442 U.S. at p. 97 is particularly instructive. There, the defendant attempted to prove, during the penalty phase of his ’ trial, that he had not been present when the murder occurred. Tothat end, he soughtto introducethe testimony of his codefendant’s cellmate, who waspreparedto testify that the codefendant had admitted that he was the sole murderer. Thetrial court excluded the proffered testimony. The high court, however, found substantial indications of the reliability of the cellmate’s testimony: there was significant corroborating evidence,the statement was against the codefendant’s penal interest, and the prosecution itself had relied on the cellmate’s testimony during its case against the codefendant. (Green v. Georgia, supra, 442 U.S.at p. 97; cf. People v. Kaurish, supra, 52 Cal.3d at p. 704-705 [trial court did noterr in denying defendant’s motion to permitthe playing ofhis entire tape-recorded interrogation; there. was no indication that exculpatory statements contained therein were anything but self-serving].) Furthermore, the exclusion of the proffered evidence infringed - appellant’s Eighth and Fourteenth Amendmentrights toa fair, accurate, and reliable capital sentencing determination. The United States Supreme Court has declared that “capital sentencing must be reliable, accurate, and nonarbitrary,” and explained that, because death is qualitatively different from other punishments, a capital sentencing determination requires a heightened degreeofreliability. (Saffle v. Parks (1990) 494 U.S. 484, 493; Penry v. Lynaugh, supra, 492 U.S. at p. 328; Johnson v. Mississippi, supra, 486 U.S.at p. 584; People v. Horton, supra, 11 Cal.4th at p. 1135; see also Lankford v. Idaho (1991) 500 U.S. 110, 125, fn. 21; Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329; California v. Ramos (1983) 463 U.S. 992, 998-999; Lockett v. Ohio, supra, 436 U.S. at p. 604; Woodsonv. 250 North Carolina (1976) 428 U.S. 280, 305 (lead opn. of Stewart, Powell, and Stevens, JJ.).) The proffered evidence was crucial to a reliable assessment ' of appellant’s deathworthiness. The trial court’s exclusion of the evidence prevented the jury from basingits capital sentencing determination onthe full complementofsalient facts. A death verdict renderedata trial in whichthe jury did not hear critical defense evidence pertaining to the circumstancesofthe offense, as well as to appellant’s character and record, could notbe fair, accurate, or reliable. (See In re Gay, supra, 19 Cal.4th at p. 814; § 190.3.) | . Finally, forthe reasons set forth above, the trial court’s error in excluding Bales’s confessions also hadthe legal consequence of violating the federal constitutional rights discussed above,i.e., his due processrights to a fair trial, to present mitigating evidence and to rebut aggravating evidence, and his Eighth Amendment right to a reliable penalty verdict. (People v. Partida, supra, 37 Cal.4th 428, 436.) Again,thetrial court had notice of, and an opportunity to consider, appellant’s motion for a newtrial or, in the alternative, admission of the evidence at the penalty phase. (See Section A, supra.) In appellant’s case, the State’s interest in excluding Bales’s confessions did not outweigh appellant’s interest in a fair and reliable penalty determination, even if (1) the evidence constituted hearsay or (2) could not have been admitted at the guilt phase pursuant to Evidence Code section 1230. Bales’s confessions were not only reliable, they were, without question, highly relevant to appellant’s penalty case: evidencethat appellant did not commit the charged offenses certainly implicated the circumstances of those offenses and would have placed his character and record in a significantly more favorable light, and therefore was relevant. 251 (Lockett v. Ohio, supra, 438 U.S.at p. 604; see also Skipperv. South. Carolina, supra, 476 U.S.at p. 7.) As the trial court acknowledged, Bales’s ~ confessions comprised newly discovered evidence which wasnot available to the defenseat the guilt phase. (24 RT 3104.) Indeed, the third party culpability evidence presented at guilt phase - namely, examples of similarities between the crimes charged and the Ramirez case and evidence that appellant had been excludedas a suspectin the latter (16 RT 2775- 2780; 24 RT 2406-2412, 2445-2449, 2452-2455) — paled in comparison to Bales’s confessionsin terms of detail, scope and probative value. (See Chambers v. Mississippi, supra, 410 U.S.at p. 294 [as a result of state’s evidentiary rules, which unfairly barred evidence ofthird party culpability, defense wasfar less persuasive than it might have been].) Appellant’s deathworthiness presupposed and was entirely dependent uponhis guilt; the jurors would not have sentenced appellant to death if they believed he was imnocent. | Therefore, the trial court abusedits discretion in excluding Bales’s confessions. 5. Because The Trial Court’s Error Was Prejudicial, Appellant’s Death Sentence Must Be Reversed Evidence that someone other than appellant committed the offenses against Maria wasthe heart of his defense at both the guilt and penalty phases. The exclusion of Bales’s confessions undercut this defense at the penalty phase. Notwithstanding the guilt verdicts,it is likely that the jurors would have voted for life imprisonment without possibility of parole had they heard evidencethata third party suspect had confessedto the crimes; this was powerful evidence of actual innocence whichthe jury had not . already considered. (See Koosed, Averting Mistaken Executions By 252 Adopting the Model Penal Code's Exclusion ofDeath in the Presence of Lingering Doubt (2001) 21 N.Ill. U. L. Rev. 41, 54-60 [discussing several studies demonstrating the “primacy”oflingering doubtas the reason for giving a life sentence rather than the death penalty]; Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think? (Oct. 1998) 98 . Colum. L. Rev. 1538, 1563 [study ofjurors whosat in 41 capital murder cases showedthat ““[r]esidual doubt’ over the defendant’s guilt is the most powerful ‘mitigating’ fact’’].) The proffered evidence wouldalso have countered, even arguably eliminated, the force of the aggravating and victim impact evidence. Appellant’s deathworthiness presupposed and was entirely dependent upon his guilt of the charged crimes. If the trial court had admitted evidence that in fact someoneelse committed those crimes,it is likely that the jury would have givenless aggravating weight to the prosecution evidence. Because the State cannot demonstrate beyond a reasonable doubt that the trial court’s error was harmless beyond a reasonable doubt, appellant’s death sentence must be reversed. (Chapman v. California (1967) 386 U.S. 18, 24.) Even if this Court were to apply the lower standard review set forth in People v. Brown (1988) 46 Cal.3d 432, 446- 447, appellant’s death sentence must be reversed, becausethereexists a reasonable possibility the defendant would not have been sentencedto death if the trial court had not erred. Accordingly, under any standard of review, the judgmentofdeath must be vacated. DATED: July 13, 2006 Respectfully submitted, MICHAEL J. HERSEK State Public Defender A), GARY D. GARCIA Deputy State Public Defender Attorneys for Appellant DECLARATION OF SERVICE Re: People V. GENE ESTEL McCURDY No. S061026 . Kings County Sup. Ct. | No. 95CM5316 I, ROSEMARY MENDOZA,declare that I am over 18 years of age, and not a party to the within cause; my business address is 221 Main Street, 10th Floor, San Francisco, California 94105. A true copy ofthe attached: APPELLANT’S OPENING BRIEF ARGUMENT Vil (Pages 221-253) on eachofthe following, by placing samein an envelope (or envelopes) addressed (respectively) as follows: Bill Lockyer Gene Estel McCurdy Attorney General of the State of California San Quentin State Prison Attn.: Catherine Tennant Box K-50300 P.O. Box 94255 San Quentin, CA 94974 Sacramento, CA 94244-2550 Hon.Peter M. Schultz David Lee Kings County Superior Court, Dept.2 ~ . (Trial Counsel) 1426 South Drive 129 3" Street Hanford, CA 93230 Eureka, CA 95501 John Patrick Moore Patrick Hart (Trial Counsel) (Trial Counsel) 1107 “R” Street P.O. Box 714 Fresno, CA 93721 Three Rivers, CA 93271 Eachsaid envelope was then, on July 13, 2006, sealed and deposited in the United States Mail at San Francisco, California, the county in which I am employed, with the postage thereon fully prepaid. I declare underpenalty of perjury that the foregoingis. truend gorrect. j Executed on July 13, 2006, at San Francisco, Californy
