PEOPLE v. VALDEZ (RICHARD)

Appellant's Opening Brief

Cal.June 27, 2007

SUPREME COURT COPY (18 RT 2356-2357.) . _ Higashi examinedthefive .45 caliber casings recovered from the crime scene and formed the opinion that they wereall fired from the same semi-automatic pistol. (19 RT 2441.) Higashi alsocompared the .45 caliber bullets recovered from the autopsy of Maria Morenowith the .45 caliber ballistics evidence recovered from the crime scene and concluded *° On cross-examination, Viewacknowledged that when he served the search warrant, appellant’s brother, Alex Valdez, was sleeping in the ‘master bedroom and that Alex Valdez told him that it was his closet in which the bullets were found. (18 RT 2368.) 29 that the .45 caliber bullets from the crime scene and the autopsy wereall fired from the same gun. (19 RT 2442.) Higashi compared the .38/.357 bullet recovered from the autopsy of Aguirre and the .38/.357 Magnumbullet recovered from the bathroom wall of the Maxson Roadresidence with the .38 caliber bullet recovered from the living room wall of the residence at 2659 Greenleaf Drive. (19 RT 2429- 2431.) Higashi testified that all three of the .38/.357 bullets had the same generalrifling characteristics and that they wereall fired from a revolver. (19 RT 2430.) However, Higashi could not determine whetherall three bullets were fired from the samefirearm because the “generalrifling characteristics” commonto the three bullets were consistent with revolvers made by four different gun manufacturers. (19 RT 2451.) . Higashi also examined the bag of ammunition recovered by, Sergeant View at 1359 Peppertree Circle. The bag containedlive rounds of .45 caliber automatic ammunition, and .9 millimeter and .22 caliber longrifle ammunition. (19 RT 2444.) Higashi did not perform any analysis on the .22 caliber or .9 millimeter ammunition, but he did compare the .45 caliber ammunition with the five expended .45 automatic cartridge cases recovered from the crime scene. (19 RT 2445.) Higashi concludedthat the live ammunition and casings had at some point been chamberedin the same firearm. (19 RT 2445-2446.) BF Gang Expert Testimony Attrial, the prosecution presented extensive testimony from two law enforcement officers, Richard Valdemar and Dan Rosenberg, about the Mexican Mafia and Hispanicstreet gangs. Sergeant Valdemar testified about the Mexican Mafiaandits relationship with Hispanic street gangs. (18 RT 2236-2351.) Hetestified 30 that the Mexican Mafia was formed in 1957 by Hispanic inmates in Tracy Prison, Deuel Prison Institute, at the invitation of the Sicilian Mafia. (18 RT 2251.) According to Valdemar, the Mexican Mafia originally was formed in defense against other groupsin the prison system but “soon moved from prey to predator” and began preying on other Hispanic inmates who werenotpart of their gang. (18 RT 2252.) A rival gang, the Nuestra Familia, eventually formed to contest control of criminal activity within the prison system. (18 RT 2251.) By 1977, the Mexican Mafia had generally prevailed and “had control” of mostof the prisons. (18 RT 2251.) In 1993, the gang resurfaced on “the street” when a gang member ‘named “Sana Ojada,” whose real name was Peter Ojada, began conducting meetings in Orange County with representatives of the various Hispanic street gangs. (18 RT 2253.) Ojada instructed the gang membersto stop engaging in drive-by shootings because they generated “a lot of negative publicity,” but also encouraged them “to attack other races.” (18RT 2253.) Ojadainstructed the gang membersthat if they had problems with each other they should resolve them through “face-to-face confrontation” or through mediation by the Mexican Mafia. (18 RT 2253.) He also instructed them to “tax” the drug dealers in the neighborhood,particularly the “Mexican alien” dealers, as a fee for mediating gang disputes. (18 RT 2253.) As a result, the Mexican Mafia “gained control of the whole Orange County area.” (18 RT 2253.) Valdemar testified that “doing time” did not mean anything to Mexican Mafia gang membersandassociates. (18 RT 2254.) Many of them were already serving sentencesoflife without possibility of parole and 92 6“vendetta is part oftheir lifestyle,” “[s]o waiting 10 years or 15 years to kill someoneis nothing to them.” (18 RT 2254.) For example, Valdemar 31 testified that he had learned during his involvement in the RICO investigation that the Mexican Mafia was “actively seeking” to murder an informant whohad provided information in the 1977 “Delia murdercase,” 19 years later. (18 RT 2254-2255.) Valdemar testified that, “like the Sicilian Mafia,” the Mexican Mafia requires membersto take a “blood oath” swearing allegiance to the gang and does notallow them to leave — “death is the only way out.” (18 RT 2255.) A gang member who wantsto leave the gang — a “drop-out” — must immediately seek protective custody.from law enforcement, particularly if he is in the prison system. (18 RT 2255.) He then goes through a lengthy processof “debriefing” and is required to provide information about the Mexican Mafia and any street gangs with which he wasaffiliated. (18 RT 2256.) The information is then cross-checked against information received from other sources forreliability, because some gang membersclaim to be drop-outs in order to be movedto an area of the prison where they can kill: other informants. (18 RT 2256.) Valdemar estimated that while the Mexican Mafia only had about 250 to 300 members,it had “numerousassociates.” (18 RT 2264, 2278.) The Mexican Mafia exerted influence over“all of the Hispanic gangs in Southern California” (18 RT 2272-2273) and “basically every Hispanic gang memberin Southern California falls under their control.” (18 RT 2278.) The 250-member Mexican Mafiais able to “control” a prison system with 100,000 prisoners because its membersare “ruthless.” (18 RT 2265.) Membersofthe gangare recruited from the “holes” and segregated housing units of the prison system — where the mostincorrigible inmatesare . found. (18 RT 2265.) If anyone violates any of its regulations the Mexican 32 Mafia “discipline[s]” him once he comesinto custody, which usually “means the person is killed.” (18 RT 2265.) Valdemar was awarethat five people were killed in El Monte on April 22, 1995. (18 RT 2268.) An investigator on the case asked him to find out what he could about Anthony “Dido” Moreno. (18 RT 2268.) Valdemar determined that “Dido” had been a memberof the Mexican Mafia, but dropped out in 1988. (18 RT 2268.) Valdemar testified that some of Palma’s tattoos — specifically, the letters “SUR”on the outer portion of his right hand andhis left arm, and the word “surreno” on his body — indicated “his alliance and allegiance to the Mexican Mafia,” because the word “surreno” means “‘southerner,” and the Mexican Mafia originated in Southern California. (18 RT 2276-2280.) Valdemar testified that a Sangra gang member whotestified against another Sangra member would be in trouble. (18 RT 2284.) The Mexican Mafia and other gangs have “cardinal rules” against their members becoming informers or cooperating with law enforcement. (18 RT 2284- 2285.) The police report or court transcript of the member’s testimony reflecting his cooperation — the so-called “paperwork”— is the proof the gang needs“to issue a hit contract.” (18 RT 2285.) Valdemar opined that if Dido wasa “drop-out” he wassubject to being killed by the Mexican Mafia, even 10 or 15 years afterwards. (18 RT 2271.) Valdemar also opined that if anyone robbed someonepaying “taxes” to the Mexican Mafia for protection the Mexican Mafia “would have to retaliate” andkill the robber“to maintain their power.” (18 RT 2272.) Finally, Valdemar testified that, in his expert opinion, the murdersof a mother and her two children could not have been carried out unless they 33 were “sanctioned or ordered” by the Mexican Mafia.”° (18 RT 2273, 2336, 2341.) On cross-examination, Valdemar testified that the Mexican Mafia . has a “code of conduct” which forbids drive-by shootings and includes a “protocol”against killing children. (18 RT 2316, 2319.) Valdemar could not think of any situation in which the Mexican Mafia would authorize the murder of children. (18 RT 2316.) He explained that in Mexican Mafia terminology,a “clean killing” would be a “hit” that was within Mexican Mafia policy, while a “dirty killing” is not. (18 RT 2320.) He agreed that a “hit” involving children would be considered “dirty.” (18 RT 2320.) Sergeant Dan Rosenberg, a Los Angeles County Sheriffs deputy and Gang Unit supervisor, testified as an expert about the Sangra street gang. (19RT 2505-2506.) Hetestified that Sangra wasa “terrorist street gang,” and had beenclassified as such by the Los Angeles Superior Court in March 1990. (19 RT 2506.) In support of that opinion, Rosenberg produced a copyofa court order that was markedforidentification as Exhibit 71. (19 RT 2507.) Hetestified that, in his expert opinion, the Sangrastreet gang had a “common name” and a “commonidentifying sign or symbol,” and that Sangra members“throw” gang signs uniqueto their gang. (19 RT 2508.) Rosenberg had “no doubt”that a primary activity of the Sangra street gang was the commission of various criminal offenses (19 RT 2507), and opined thatit would enhance the gang’s reputationto 6 Valdemar explainedthat the basis for this opinion wasthatif the crimes were sanctioned by the Mexican Mafia, the perpetrators would be able to “conduct normal business in the custody environment.” Otherwise, if the crimes were not sanctioned by the Mexican Mafia, the suspects would have to “seek protective custody and lock up for fear that the Mexican Mafia” would seek to punish them. (18 RT 2274.) 34 commit a crimeat the direction of or in association with the Mexican Mafia. (19 RT 2510.) On cross-examination, Rosenberg acknowledgedthat although he been in charge of the Gang Unit since 1992 and was familiar with “quite a few” ofthe Sangra gang members, he had never had any contact with - appellant beforethis trial. (19 RT 2519-2521.) II. The Defense Case The defense denied that appellant was involved in any wayin the murders of the five victims on Maxson Road in E] Monte. (13 RT 1655- 1657.) The defense maintained that while appellant had been a memberof ‘the Sangra gang at one time, he had disassociated himself from the gang and was no longer an active memberat the time of the murders. (13 RT 1655.) The defense elicited testimony from Victor Jimenez that appellant did not appear to be an active member of Sangra when Jimenez returned to San Gabriel from the Marine Corps; that appellant was working at an auto paint and body shopat the time; andthat appellant moved away from the neighborhood, which wasa “major step” that an inactive member would take to separate himself from the gang. (14 RT 1826-1832.) Similarly, Veronica Lopeztestified that appellant was employed, that he workeda lot, and that she had never seen him with any gang members. (13 RT 1680- 1681.) The defense also elicited testimony from Witness No. 15 that Tito Aguirre may have provoked a gang called the “Border Brothers” by robbing drug “connections” associated with the gang. (15 RT 2044.) Witness No. 15 explained that the Border Brothers were from Mexico and otherLatin American countries and wereselling drugsin the United States. (15 RT 2042.) The Border Brothers didn’t “listen to” the Mexican Mafia, which — 35 had issued an “edict” during this period that gang membersnot kill each other. (15 RT 2048.) Witness No.15 testified that there was a “split” in the drug business between dealers from Mexico and other Latin American countries, and the local “homeboys.” (15 RT 2043.) He acknowledgedthat Tito and Tony Cruz sometimes robbed dealers associated with the Border Brothers, as well as those associated with the Mexican Mafia. (15 RT 2044.) Like the Mexican Mafia, the Border Brothers objected to such robberies and would protect their business with violence. (15 RT 2045.) Witness No.15 testified that the Border Brothers killed people whostole “dope” from them and could be “pretty vicious” in protecting their interests. (15 RT 2045, 2048.) In additionto eliciting this evidence from prosecution witnesses, each defendantcalled additional witnesses in his own defense. A. Co-DefendantPalma’s Defense Case Palma called David Hooker, a state prison inmate,to testify about statements made by Witness No. 14 to Hooker while they were incarcerated at Delano State Prison. (23 RT 3103-3118.) Hookertestified that sometime around May 19, 1996, Witness No. 14 said that he wasin protective custody because the Mexican Mafia had a “green light” on him because he had been “involved in a thing where some kids got killed during a murder.” (23 RT 3105.) ' According to Hooker, Witness No. 14 said that he had been dealing drugs in partnership with a Mexican Mafia member. (23 RT 3106.) When a customerhe described as a guy from 18th Street”’ got behind in paying for *7 During the prosecution’s case-in-chief, Witness No.15 testified that Tito Aguirre was knownas“Tito from 18th Street.” (15 RT 1991.) 36 drugs, Witness No. 14 threatened him on the day of the murders. (23 RT 3106.) Hookertestified that, according to Witness No. 14, when the customerstill did not pay his debt Witness No. 14 went to the Mexican Mafia and “arranged to get some vatos from San Gabriel to take the puto out.” (23 RT 3106.) Hookertestified that after Witness No. 14 made these statements to him, he wrote a letter to Detective Frank Gonzalez of the Los Angeles County Sheriff’s Department. (23 RT 3106-3107.) The reason he wrote to Detective Gonzalez was that Witness No. 14 had told him he was involved in the murderof five people.”® (23 RT 3106.) B. Appellant’s Defense Case Appellant called three witnesses in his defense: Richard Valdemar, Ravi Chavers, and Trent Hampton. Prior to Valdemar’s testimony, but while he was on the witness . stand, appellant played a portion of the videotape of the January 1995, Mexican Mafia meeting for the jury. (23 RT 3119-3120.) Valdemar then testified that that was thefirst time that he had heard the videotape clearly.” (23 RT 3120.) Valdemar identified Shyrock’s voice as the one on the videotape talking about “Dido,” and testified that Shyrock said that “he *8 Palmaalso relied on stipulation that Elizabeth Torrestestified before the grand jury on September11, 1995 that she did not recognize anybodyin the photographic lineup contained in Exhibit 10, and that the man with the tattoo on his neck who cameto her house on April 22, 1995 wasnotin that photographic lineup. (23 RT 3118.) 29 After Valdemar testified in the prosecution’s case-in-chief, the defense obtained a copy of the videotape of the January 1995 Mexican Mafia meeting and submitted it to an expert to improvethe quality of the audio on the videotape. (19 RT 2393-2407; 19 RT 2476-2477; 19 RT 2557- 2564; 22 RT 2982; 23 RT 2990-2991.) The copy of the videotape that the defense played for the jury was one on whichthe audio had been enhanced. 37 wanted to kill the vato” but “not the kids.” (23 RT 3120.) Valdemar acknowledgedthat after listening to the videotape several times he had changed his opinion that the Mexican Mafia intended for the children to be killed, and he was nowofthe opinion that Shyrock did not order or intend for the children to be killed. (23 RT 3120-3122, 3130.) Valdemar also acknowledgedthat he did notrecall any mention of the Sangra gang during the videotaped Mexican Mafia meetings. (23 RT 3130.) Ravi Chavers, who had known appellant approximately seven or eight years, visited appellant frequently at his homes on Greenleaf Drive and Peppertree Circle. Chavers saw appellant about four days a week, and used to take him to his job sanding and primingcars in Paramount. (23 RT 3136.) According to Chavers, appellant lived with his brothers andhis grandfatherat the Greenleaf residence. (23 RT 3134.) Whenhis grandfather died, appellant moved to the apartment on Peppertree, where he lived with his brother Alex and a girl named Rachel. (23 RT 3154.) After appellant left Peppertree, he moved to Utah. (23 RT 3153.) Chavers never observed a gun in appellant’s room orin his possession when helived on Greenleaf Drive or on Peppertree Circle. (23 RT 3133, 3137.) Chavers never saw any bullet holes at the house on Greenleaf Drive. (23 RT 3155-3156.) The only time Chavers saw appellant shoot a gun wasat a public shooting range called Pigeon Ridge in Azusa Canyonsin 1993. (23 RT 3138.) On that occasion, appellant fired Chavers’s gun, a “Mac 90.” (23 RT 3137-3138.) Appellant’s brother and possibly also Chavers’s brother were with them at the time. (23 RT 3139.) Chaverstestified that as they left the shooting range they picked up 20or 30 “shells” of different kinds, mostly empty cartridges but also possibly somefull bullets. (23 RT 3140.) 38 Trent Hampton, appellant’s stepfather, testified that appellant moved into his home in Utah in April 1995, (24 RT 3174-3175.) Hampton and | appellant’s mother picked appellant up at the airport on April 30, 1995. (24 RT 3174.) Appellant was at their house between April 30 and June 1, 1995, and neverleft or slept anywhere else overnight. (24 RT 3175, 3177.) While living in Utah appellant began workingat a grocery store called Harmon’s. (24 RT 3177, 3182.) Appellant introduced into evidence an airline ticket issued to passenger Richard Valdez for a flight from Ontario, California to Salt Lake City on April 30, 1995. (26 RT 3331-3332; Exh. 100; 1 SuppCT IV 177-- 179.) In addition, the parties stipulated that “a Richard Valdez flew on Southwest Airline [sic] from Ontario to Salt Lake City” on April 30, 1995. (26 RT 3331-3332.) *° The testimony of Trent Hampton,theairlineticket for the April 30, 1995 flight to Salt Lake City, and the stipulation that “a Richard Valdez” flew on Southwest Airlines that day were introducedby the defense primarily to rebut testimony by prosecution witness Russell Sprague, a sergeant with the Los Angeles County Sheriff's Department. Sprague testified that on May 2, 1995, he participated in surveillance of co- defendant Palma’s residence andthat he observed co-defendant Daniel Loganarrive at the Palma residencein his Nissan Sentra at 11:28 a.m.that day. (22 RT 2898.) Spraguetestified that he believed the passengerin the vehicle was appellant. (22 RT 2899.) 39 PENALTY PHASE I. Circumstances in Aggravation The prosecution presented no additional evidence in aggravation against appellant in its case-in-chief at the penalty phase. II. Circumstances in Mitigation Migel Valdez, appellant’s father, testified about various aspects of appellant’s upbringing, including his family history and his educational background. (39 RT 4044-4076, 4084-4089.) | Appellant was born in 1973 in Hayward. (39 RT 4044.) Hehas an older sister, Melissa, and two youngerbrothers, Alex and Matthew. (39 RT 4045-4046.) When the family lived in Hayward, appellant’s father worked for Mack Trucks and his mother was a homemaker. (39 RT 4090.) | Appellant was raised and educated in the Catholic religion. (39 RT 4051.) He was baptized at San Gabriel Mission on December 28, 1973. (39 RT 4051; Exh. 101; 1 SuppCT IV190-191.) He received religious education at St. Theresita School and received the sacraments of reconciliation and holy communion. (39 RT 4052; Exh. 103; 1 SuppCT IV 232-233.) In 1978, when appellant was four years old andthe family wasliving in Tracy, his parents divorced. (39 RT 4048, 4090.) Appellant’s mother then took appellant and his brotherandsister to live with her in the Los Angeles area — first in Alhambra,and later in Baldwin Park — while appellant’s father remained in Tracy. (39 RT 4048, 4061.) In Alhambra, appellant played Pop Warnerfootball and Little League baseball with both of his brothers and his sister. (39 RT 4047-4049, 4100; Exh. 102; 1 SuppCT IV 192, 215.) While living with his mother in Alhambra and Baldwin Park, Appellant attended Granada Elementary School and Charles 40 D. Jones Junior High School, and attended his freshman year at Baldwin - Park High School. (39 RT 4050, 4056.) David Casper, an electronics teacher at Baldwin Park High School for 33 years, testified that appellant wasin his basic electricity and electronics classes when he wasin the ninth grade in 1988. (40 RT 4240- 4242.) Appellant received a “B-O”gradein his first semester and an “A-O” grade in the second semester, with the “O”indicating “outstanding citizenship.” (40 RT 4241.) Casper described appellant as a “very _ responsible,” hard-working student. (40 RT 4241.) On cross-examination, Casper agreedthat appellant was above averageintellectually, knew how to be responsible, and was oneofhis better students. (40 RT 4243.) He did not know appellant to be a memberof a gang, or to have any kind of drug or narcotics problems or mental disability. (40 RT 4244.) In 1998, when appellant was 15, he moved to West Covina to live with his father. (39 RT 4094, 4096.) Appellant attended tenth and eleventh grades at West Covina High School. (39 RT 4056: Exhs. 105, 107-113; 1 SuppCT IV 236-237, 240-255.) He also joined the Navy Reserves while living with his father. (39 RT 4068.) Appellant and his father were in “constant conflict” when they lived together. (39 RT 4059, 4067-4068,4086-4087.) In addition, appellant started getting involved with street gang membersin San Gabriel through friends or school contacts, and his father disapproved of him associating with gangs. (39 RT 4060.) Appellant and his father attended counseling sessions to resolve their problems, but without success. (39 RT 4086.) During his junior year in high school, appellantmoved in with his grandparents who lived between Alhambra and West Covina in a house on Greenleaf Drive. (39 RT 4068.) Appellant transferred to San Gabriel High 41 School, and later to Century High School, after moving in with his grandparents. (39 RT 4056; Exh. 106; 1 SuppCT IV 238-239.) After high school, appellant continuedto live with his grandfather at his house on Greenleaf Drive. (39 RT 4073.) Appellant’s grandfather becameless able to care for himself, so appellant took it upon himself to care for his grandfather and to makesure thatthe bills were paid, and that there were food and clothes. (39 RT 4074-4075.) At that time, appellant worked foran auto body shop in Paramountandat a print shop in Baldwin Park. (39 RT 4073.) In addition, appellant helped support his younger brother Alex, who washeavily into drugs. (39 RT 4073.) Appellant, who was 18 or 19 at the time, took Alex in and provided him with food and clothes. (39 RT 4073.) . Appellant’s grandfather died in December 1994, and appellant and Alex moved to a residence in West Covina. (39 RT 4075.) Appellant did not ask his father for any financial assistance at that time, or at any time after he left his father’s house. (39 RT 4076.) Gary Timbs, director of education at ITT Technical Institute inWest Covina,testified that appellant enrolled for classes beginning in September 1992. (39 RT 4033.) The ITTInstitute is a “proprietary technical institute” whichtrains students for a career in electronics. (39 RT 4037.) Appellant achieved high scores on the entrance exam,correctly answering 90 percent of the reading comprehension questions and 85 percent of the math questions. (39 RT 4034, 4040.) However, he earned a “high C grade average”in his classes and wasterminated from the program in January 1993, due to absenteeism andfailure to provide proof of high school graduation. (39 RT 4036.) 42 Dr. Ronald Fairbanks, a licensed educational psychologist, testified about appellant’s intellectual ability and his potential to be productive in prison if sentencedto life imprisonment. (39 RT 4103-4105, 4107-4110.) Dr. Fairbankstestified that he interviewed appellant on October 9 and 18, 1996. (39 RT 4103.) Dr. Fairbanks noted appellant’s “use of vocabulary” and his “quick insight,” and developed a “clinical impression”’ that appellant waslikely “above average”in his intellectual abilities. (39 RT 4104, 4105.) Appellant’s scores on the reading and math portions of the ITT tests were consistent with this clinical impression. (39 RT 4109-4110.) Dr. Fairbanks opined that appellant could be productive within the prison system if given opportunities to work orassist others with reading or obtaining library materials. (39 RT 4109.) In addition, Dr. Fairbanks reviewed a report that Barbara Ellen Kopp,a licensed Marriage, Family and Child Counselor, prepared in 1978, inconnection with legal proceedingsrelated to the dissolution of appellant’s parents’ marriage. (39 RT 4121.) Kopp recommendedthat the court give legal custody of the then four-year-old appellantto his mother, and advocatedfor restrictions on visitation rights by appellant’s father. (1 SuppCT IV 258.) Kopp’s report indicated that appellant had already experienced substantial “emotional traumaat the hands of his father”: I first became awareofthis situation in January, 1978 . when I worked as a consultant to Alhambra Day Nursery. The staff there was experiencinga great deal of difficulty with [appellant]. They were aware that [appellant] had seen his father for the first time in many months. [Appellant] was acting outin class; soiling his pants, picking fights, yelling, screaming and generally creating chaos. His behavior was much more severe than would normally be indicated from a child in a more typical broken home.... 43 [SI] It is my strong belief that [appellant] has suffered emotional traumaat the handsofhis father and that it would be detrimental to his psychological health to have any close contact with his fatherat this time (Exh. 115; 1 SuppCT IV 258.) Koppalso prepared a “child study,” which Dr. Fairbanks reviewed before testifying. That report provided a more detailed picture of appellant at four years of age: Fantasies of Daddy living at home were another form of [appellant] relieving anxieties. For weeks he would talk about Daddyliving with them because he didn’t have a job. [Appellant] had not seen his father for several monthsprior to this. When hefinally did see him on a weekendvisit, his following school days werefilled with turmoil. He was extremely anxious and angry, and his emotional development and sense of well being had regressed six months. Visiting his father stirs up many negative feelings of the past. [T] . . . [0] [Appellant’s] days of feeling happy do occur, but rarely. When hefeels goodinsideitis illustrated by him being helpful, co-operative and having fun with the other children. To help adults is a big ego booster. The majority of [appellant’s] days are troubled. Many times he wears a frown and seemsto be feeling turmoil inside. The slightest incident may set him off for no apparent reason. I feel the homesituation prior to his parents’ separation has left a big scar on his life which still needs to be worked out psychologically through counseling. (Exh. 115; 1 SuppCT IV 260-261.) Dr. Fairbankstestified that Kopp observed “some significant symptomsfor a four year old,” including “soiling his pants and acting out in a very significant way.” (39 RT 4122.) During his interview with Dr. Fairbanks, appellant was “negative” about his childhood andsaid that his “father drank some,” but he did 44 notmake “anybody outin particular of being particularly bad.” (39 RT 4126.) Appellant talked to Dr. Fairbanks about his education “very brief[ly].” (39 RT 4123.) Appellant said he had used drugs and had experienced hallucinations. (39 RT 4125.) Dr. Fairbanks concluded those hallucinations were associated with the use of drugs and notpsychiatric in nature. (39 RT 4125.) Appellant also alluded to four previous suicide attempts. (39 RT 4120.) The original draft of Dr. Fairbanks’s report, dated November18, 1996, indicated that appellant had already been convicted of a multiple- victim crime of murder, even though the verdict was not returned until after that date. (39 RT 4118-4119.) Dr. Fairbankstestified that he was not sure whether he obtained that information directly from appellant, but he “concluded from his statementsthat that’s what [appellant] meant.” (39 RT 4119.) Dr. Fairbankstestified that appellant’s statements to the effect that he had already been convicted of murder were consistent with someof the results of the personality tests and “consistent with virtually sabotaging the psychological evaluation, which I would describe him as doing.” (39 RT 4119.) | Dr. Fairbankstestified that he performed abattery of “psychodiagnostic” tests upon which he reached conclusions about appellant’s personality. (39 RT 4118.) Two ofthe three psychological tests hegave to appellant had scales that indicated whether a person was malingering or lying to distort the results. (39 RT 4120.) Dr. Fairbanks testified that these scales indicated that appellant “had destroyed so much of {the results] that virtually the net results wasthat it was not worthy of anything,” but when he reviewedthetest results in greater depth he concluded“that [appellant’s] destruction of the results was consistent with 45 other trends that I was seeing in the interview, for example,his suicidal tendenciesin the past.” (39 RT 4120.) Even given appellant’s suicidal tendencies, Dr. Fairbanks opined that appellant “has the intelligence [to] be productive” in the prison system if provided with the opportunity. (39 RT 4129, 4172.) Finally, Jesus Avila, an inmate on appellant’s tier at the Los Angeles County Jail, testified that appellant had helped him with his writing, spelling, and drawing. (40 RT 4196.) Avila testified he had limited facility with English, andthat appellant explained to him whatcertain unfamiliar words meant and howto spell them. (40 RT 4197-4198.) Appellant helped Avila write to his family. (40 RT 4198.) Avila testified that appellant was friendly with other prisoners, but spent most of his time reading, drawing, and watching television by himself. (40 RT 4199-4200.) III. Rebuttal In rebuttal, the prosecution presented testimony from a single witness, Tony France, about an incident that occurred on December18, 1991, when appellant was a student at San Gabriel High School. The incident allegedly arose after France, a “campus supervisor” at San Gabriel High School, broke up a fight in which appellant and “a numberof[other] people” were involved. (40 RT 5253-4254.) After France broke up the fight and detained appellant, he overheard appellanttell another supervisor that he was “going to kick his ass” and that the other supervisor was “his bitch.” (40 RT 4255.) When France then took appellant to wait for the arrival of the police, appellant threatenedto put a bullet in France’s head. (40 RT 4255.) On cross-examination, Francetestified that appellant was “very upset” and “agitated” when he madethe statements,andthat he did nottake 46 those threatening statements “seriously.” (40 RT 4256-4257.) France acknowledgedthat, in his experience, it was “standard”for students to makesimilar kinds of statements and threats when security officers broke up fights in which students were involved. (40 RT 4256.) Finally, France testified that he never saw appellant after this incident and was never threatened by appellant again. (40 RT 4257.) HI H 47 ARGUMENTS1 AND 2 PAGES49 - 116 FILED UNDER SEAL 48 3 THE TRIAL COURT ERRONEOUSLY PERMITTED THE PROSECUTION TO PRESENT NUMEROUS PHOTOGRAPHS OF SANGRA GANG MEMBERS, GANG GRAFFITI, AND OTHER GANG EVIDENCE THAT WAS IRRELEVANT, CUMULATIVE, AND HIGHLY INFLAMMATORY Overdefense objection, the trial court allowed the prosecution to introduce extensive evidencethat wasnot probative of any disputed issue at trial, including (1) numerous photographs of various membersof the Sangra gang, some of which did not depict either of the defendants on trial; (2) photographsof the defendants’ tattoos; (3) photographs of gang graffiti; and (4) a drawing that was recovered from the search of the residence of a Sangra gang member who wasnot ontrial. Because appellant and co- defendant Palma offeredto stipulate to the “exact” language of the gang- enhancementallegation the facts that the defendants were membersof the Sangra gang, and that the offenses were gang-related, were not materially in dispute. Moreover, the numerous photographsof the defendants’ tattoos, of gang graffiti, and of armed gang members — most of whom had nothing to do with the case — surely overshadowedthe evidence that wasactually relevantto the jury’s determination ofguilt. The emotionally-charged gang evidence presented by the prosecution wasinflammatory, cumulative, irrelevant, and far more prejudicial than probative. (Evid. Code, § 352.) The trial court’s erroneousruling in admitting the inflammatory andirrelevant photographsat issue here deprived appellant of his federal constitutional rights to due process, a fair trial, and to reliable determinationsas to guilt and penalty. (U.S. Const., 6th, 8th & 14th Amends.; see Spears v. Mullin (10th Cir. 2003) 343 F.3d 1215, 1225-1230.) 117 A. Proceedings Below Priorto trial, the prosecution sought permission to admit “gang- related” evidence for a numberof purposesat trial, including to establish that appellant and co-defendant Palma were membersofthe Sangrastreet gang. (VICT 1548.) Ata pretrial hearing,the trial court entered a “3 The other purposes for which the prosecution sought permission to introduce gang evidence were, for the most part, concerned with establishing facts related to the Mexican Mafia gang — of which neither appellant nor co-defendant wasalleged to be a member. Specifically, the prosecution sought to offer evidence to show that: “2. [...] RAYMOND SHYROCKand defendant LUIS MACIELare membersof the Mexican Mafia prison gang and that MACIELis a member of the EL MONTE FLORESstreet gang; 3. [.. .] victim ANTHONY “Dido” MORENO was a Mexican Mafia prison gang ‘dropout’; 4.[...] victim VICTOR[sic] AGUIRREhad robbed a drug dealer who was ‘protected’ in the Mexican Mafia; 5. [...] [a] relationship [existed] between the Mexican Mafia prison gang and Hispanic street gangs in Los Angeles County including the SANGRAstreet gang; 6. [. . .] the defendants TORRES and ORTIZ attended certain Mexico [sic] Mafia meetings on behalf of the SANGRAstreet gang.” (VI CT 1548.) Attrial, the prosecution presented testimony from Witness No. 15 that (1) Shyrock and Maciel were members of the Mexican Mafia (15 RT 1994, 1998), (2) Anthony “Dido” Moreno was a Mexican Mafia prison gang “dropout” (15 RT 2001), and (3) Gustavo “Tito” Aguirre had robbed a drug dealer who was“protected” by the Mexican Mafia. (15 RT 2019- (continued...) 118 preliminary ruling granting the prosecution’s motion to admit gang-related evidence. As a general matter, the court ruled that “[e]vidence of relationship of gang is admissible for identification,” and that “as long as there’s been sufficient foundation laid for it, that type of evidence would be admissible.” (2B RT 444.) However, the court also indicated that the motion was “better handled”at the timeoftrial, as the trial judge would be in a better position to determine the extent to which such matters “appear to be an issue at trial” and can thus “make an appropriate ruling” atthat time. (2B RT 443-444.) Before trial began,the trial court directed each party to disclose to the other side any exhibits it intended to use the following day in court. (10 RT 1474-1475.) Prior to opening statements, the defense movedin limine to exclude certain photographs the prosecution intendedto introduce, including photographs showing various members of the Sangra gang “throwing gang signs,” holding firearms, or standing in front of the “Sangra . wall.” (11 RT 1479-1480; 12 RT 1521-1528.) Amongthe photographs that the prosecution proposed to usein its opening statement were the following: (1) a photograph of appellant showing tattoos of the word “Sangra,” a shotgun barrel, and what the prosecutor called a “death skull” on his back (12 RT 1521); . an * (...continued) 2020.) The prosecution also presented testimony from Sgt. Richard Valdemar to establish that Shyrock and Maciel were membersof.the Mexican Mafia (18 RT 2259-2262) and that “Dido” Moreno was a Mexican Mafia “dropout” (18 RT 2268), and to describe the relationship between the Mexican Mafia and Hispanic street gangs. (18 RT 2253, 2265, 2272.) No > evidence whatsoever waspresentedto establish that Torres or Ortiz had attended any Mexican Mafia meetings. 119 (2) a photograph showing a numberof people, including appellant, in front of the “Sangra wall,” some of whom, according to the prosecutor, were “throwing Sangra gang signs” (11 RT 1479); (3) a photograph showinga total of six people, in which appellantis allegedly “throwing Sangra gang signs” while some of the other individuals hold firearms (11 RT 1479; 12 RT 1525); (4) a photograph “with Sangra gang writing on it” showinga total of seven individuals, several holding firearms, including co-defendant Torres“ but not appellant or co-defendant Palma (11 RT 1479; 12 RT 1526); (5) a photograph of four individuals holding firearms, including a shotgun, and wearing bandanasthat obscure their faces (11 RT 1479)*; (6) a photograph of a numberofindividuals — not including appellant, co-defendant Palma,or any other charged defendant* — at the Sangra wall throwing gang signs, one of whom has “187” written across his chest, and with “Sangra gang kills” written over it (11 RT 1480; 12 RT 1526); (7) a photograph of a numberof Sangra gang members seated on a stairway — including a witness in this case whoseface has been “4 At the time of this pretrial proceeding,the trial court had already severed Torres’s case from that of appellant and Palma. (VI CT 1569.) ‘5 Although the prosecutor acknowledgedthat the individuals’ faces could not be seen and that he had “noreasonto believe they’re any of the defendants,” he maintained that this photograph was admissible to establish the gang enhancement. (11 RT 1479.) ‘© As the prosecutor explainedto the trial court: “[NJone of the charged defendants are in this photograph but the relevanceis these people are membersof the Sangra gang. They are throwing the Sangra sign and up top somebody’s written “‘Sangra Gang Kills’ and oneofthe individuals in the photograph has ‘187’ [written] across his chest.” (12 RT 1526.) 120 scratched out, and who has “187”written across his chest (11 RT 1480; 12 RT 1526); (8) a photograph on which “someone”wrote “Sangra, touch this and you die” (12 RT 1525); (9) a photograph of appellant with a group of gang members,in which appellantis allegedly “throwing gang signs,” and other gang membersare either holding guns or have gunsin their waistbands (12 RT 1525); - (10) a photograph of various Sangra gang membersat the “Sangra wall” (12 RT 1526); (11) another photograph of various Sangra gang members, some holding guns (12 RT 1526); (12) a photograph of various Sangra gang members throwing gang signs (12 RT 1526); (13) a photograph showing co-defendant Luis Maciel and Raymond Shyrock,“a long-time Mexican Mafia memberwhois in federal custodyright now,at a location in El Monte walking together. . . .” (12 RT 1527.) . The prosecutor acknowledged that neither appellant nor co- defendant Palma was shownin many of these photographs. (11 RT 1479.) . However, the prosecutor maintainedthat all the photographs were relevant and necessary to establishthe gang enhancement.”” (11 RT 1479-1480; 12 RT 1522-1528.) 47 As to each countofthe indictment, the People alleged, pursuantto sections 186.22, subdivisions (b)(1) and (b)(2), that the offense was “committed for the benefit of, at the direction of, and in association with a criminalstreet gang with the specific intent to promote, further and assist in criminal conduct by gang members.” (IV CT 1142-1146.) 121 Counsel for appellant and co-defendant Palma objected that the photographs were cumulative of other evidence and offered simply for the purpose of prejudicing the jury against the defendants. (12 RT 1529.) They objected to admission of any photograph of Sangra gang members other than the defendants as irrelevant. (11 RT 1480-1481.) Counsel for appellant pointed out thatit could not even be established that any Sangra gang members were in some of the photographs. (11 RT 1480; 12 RT 1529, 1539.) — Appellant also objected to photographs of gang graffiti, specifically graffiti including the word “Primo,” on relevancy grounds because he asserted that there was more than one “Primo” in the Sangra gang.* (12 RT 1535.) The defense offered to stipulate not only that the defendants were members of the Sangra gang,butalso that the Sangra street gang was a “violent street gang” for the purpose of the gang enhancement. (12 RT 1522, 1528, 1541.) After the prosecutor argued that the proposed stipulation didn’t “go far enough to take away from us the burden of proof as to that gang enhancement,” both defense counseloffered to stipulate to the “exact” language of the gang enhancementallegation as set forth in the indictment, thereby offering to “relieve[] the burden of the People of proving that allegation.” (12 RT 1528.) Nonetheless, the prosecutor rejected the defense offer to stipulate to .the gang enhancement. Hearguedthat even if the defense was willing to stipulate to everything that the People believed they were required to prove _ “* The prosecutor responded that he was not aware of any other person in the Sangra gang other than appellant with the moniker “Primo.” (12 RT 1536.) 122 to establish the gang enhancement — that Sangra “is an association or group of three or more persons having as one ofits primary activities the commission of assault and battery, robbery, and/or murder” — the photograph with the witness who was granted immunity and whose face wasscratched out and had “187”written across his chest would still be admissible. (12 RT 1527.) The trial court overruled all of the defense objections to the proffered photographs except one. Thetrial court allowed the prosecution to introduce photographs of Palma’s and appellant’s tattoos, reasoning that they “show a greater degreeofaffiliation” with the gang than someonein the gang who did not havetattoos. (12 RT 1528.) Thetrial court sustained the defense objectionsto a single photograph of gang membersholding guns where the defense objected that the prosecution could notestablish that any of the individuals shown were Sangra gang members,but reserved the right to revisit the issue during trial. (12 RT 1532.) Thetrial court overruled the objectionsto all of the. other photographs. (12 RT 1533-1535, 1542.) During his opening statementat trial, the prosecutor provided the jury with a lengthy introduction to the photographic evidencethat the prosecution would useattrial: Now,ladies and gentlemen, we will have to show as part of the gang enhancement,that the defendants are members of the Sangra street gang and that that particular gang hasas one of its major purposes the commission of certain felony offenses, and you’ll hear more aboutthat later on. But what we will show,ladies and gentlemen, is you will see one photograph of [appellant], and this is [appellant]. I know you can’t see his face and that will be explained to you 123 later, where he has Sangra tattooed on his back alone with a — the barrels of a double-barreled shotgun and a death head.... So wewill prove in part through the use ofthe photographsin part through the use of expert testimony that these two gentlemen are members of the Sangrastreet gang. Asfar as the criminal purpose of the Sangrastreet gang, you will see various exhibits along with testimony. You will see — here is a photograph of a numberof Sangra gang membersholding firearms together. One of these individuals, this is Mr. Torres who’s holding a gun, who’s one of the defendants in this case, although he will not be before you in court. Also, there will be a photograph of various membersof the Sangra gang, and you maynotgetto see these now but you will see theselater in front of the Sangra wall, and [appellant] is one of the individuals in that photograph. There’s a photograph here of six members of the Sangra gang, one’s holding a handgun, one’s holding what appears to be sometype ofrifle, one has a gunin his waistband, and you can see [appellant] with his arms around two of the individuals and heis actually flashing gang signs, - the Sangra gang signs claiming Sangra. Again, ladies and gentlemen,on the issue of Sangra and what someofits objectives are, here is a picture of Sangra gang members, and while none of the defendants are in this picture, it clearly indicates on the top someonehas written in handwriting, “Sangra gang kills.” And one of the individuals they’ ve written “187,” which is the California Penal Code for murder. In addition, ladies and gentlemen, you’ll see a picture that says “Sangra 1.” It shows a number of Sangra gang members with their monikers off to one side. You can see the one individual’s face has been crossed out. Now,thisis a 124 picture of the picture but you can see his face has been crossed out and someone’s written “187” across him. Thisis the individual that I referred to during jury selection who has been given immunity and will testify in this case as a People’s witness and will testify that if he testifies honestly he cannot be prosecuted. (12 RT 1606-1608.) At trial, the prosecution proffered a large volumeof evidence whose relevance was limited to establishing that the Sangra gang was a “criminal ' street gang” within the meaning of the gang enhancement. This evidence consisted of numerous photographsof various Sangra members, some brandishing weapons and “throwing” gang signs.” In several of these photographs neither appellant nor co-defendant Palma waspictured; in one of them, Palma but not appellant was pictured.” In addition, the prosecution introduced a photograph of the tattoos on appellant’s back;*! “seven photographsof various tattoos on Palma’s neck,chest, arms, hands, back, and legs;*? two photographsof urban gang graffiti;and two pieces ” Exh. 3 (13 RT 1673, 1743); Exh. 7 (13 RT 1740); Exh. 8 (13 RT 1746; 20 RT 2734); Exh. 12-A (14 RT 1846); Exh. 58 (20 RT 2720); Exh. 78 (21 RT 2754-2755); Exh. 79 (21 RT 2754-2755); Exh. 93 (23 RT 3029). Exhibit 12-A consists of four photographs that were taken from the scrapbookthat was marked for identification as Exhibit 12. (29 RT 3678- 3679; 1 SuppCT IV 71-72.) °° Exh. 7 (13 RT 1740; 1 SuppCT IV 63-64); Exh. 58 (20 RT 2720; 1 SuppCT IV 124-125). . Palma, but not appellant, was identified in Exhibit 78. (21 RT 2754- 2755; 1 SuppCT IV 145-146.) >! Exh. 57 (18 RT 2275; 19 RT 2523; 1 SuppCT IV 122-123). °* Exh. 50 (18 RT 2275; 1 SuppCT IV 108-109); Exh. 51 (18 RT 2275; 1 SuppCT IV 110-111); Exh. 52 (18 RT 2275; 1 SuppCT IV 112- (continued...) 125 of paper with the word “Sangra”written in calligraphic letters, one of which also had the handwritten notation “touch this and you die.”Finally, the prosecution elicited testimony, also ostensibly for the purpose of proving the gang enhancement, about two exhibits that were marked for identification but were not ultimately introduced into evidence.*> These _ exhibits consisted of a documentfromthe Los Angeles County District Attorney’s Office, dated March 8, 1990,titled “Notice of Determination that the Sangra Gang is a Criminal Within the Meaning of Penal Code Section 186.22 (marked for identification as Exhibit 71) and a hand-drawn drawing of a drive-by shooting recovered during a search of Jose “Pepe” Ortiz’s residence (marked for identification as Exhibit 91).°° All that 2 (...continued) 113); Exh. 53 (18 RT 2275, 2277; 1 SuppCT IV 114-115); Exh. 54 (18 RT 2275, 2280; 1 SuppCT IV 116-117); Exh. 55 (18 RT 2275; 1 SuppCT IV 118-119); Exh. 56 (18 RT 2275, 2280; 1 SuppCT IV 120-121). 3 Exh. 72 (19 RT 2526; 1 SuppCT IV 137-138); Exh. 73 (19 RT 2526; 1 SuppCT IV 139-140). “Exh. 60 (18 RT 2359; 1 SuppCT IV 126-127); Exh. 92 (23 RT 3028-3029; 1 SuppCT IV 165-166). °° Exh. 71 (19 RT 2507; 1 SuppCT IV 53); Exh. 91 (23 RT 3028- 3029; 1 SuppCT IV 54). °° The prosecutor withdrew Exhibit 71 (26 RT 3291), but only after using it to examine gang expert Dan Rosenberg aboutthe basis forhis expert opinion that Sangra was a criminalstreet gang. (19 RT 2507.) Appellant objected to the admission of Exhibit 91, the drawing recovered from Ortiz’s residence, on hearsay and relevance grounds; thetrial court sustained the objection. (25 RT 3274-3275.) The prosecution, however, elicited testimony about this extremely inflammatory and utterly irrelevant drawing during the examinationofits final witness, Los Angeles County Sheriff’s Investigator Stephen Davis. (23 RT 3028-3029.) 126 evidence wasused by the prosecution for the ostensible purpose of proving the gang enhancementallegation. B. Applicable Legal Standards Evidence Code section 1101, subdivision (a), prohibits the admission of evidence of a person’s character, including specific instances of conduct, to prove his or her conduct on a specific occasion. Section 1101, subdivision (b), provides an exception to this rule for evidence whichis relevant to establish some fact other than the person’s character or disposition. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Under section 1101, subdivision (b), character evidence is admissible only when “relevant to prove somefact (such as motive, opportunity, intent . . .) other than his or her disposition to commit such an act.” (People v. Catlin (2001) 26 Cal.4th 81, 145-146.) The rule excluding evidence of criminal propensity derives from early English law andis currently in force in all Americanjurisdictions. (See People v. Ewoldt, supra, 7 Cal.4th at p. 392; People v. Alcala (1984) 36 Cal.3d 604, 630-631.) Such evidence is impermissible to “establish a probability of guilt.” As the United States Supreme Court stated in Michelson v. United States (1948) 335 U.S. 469: The State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. [footnote] The inquiry is not rejected because characteris irrelevant; [footnote] on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence,despite its admitted probative value,is the practical experiencethat its 127 disallowance tends to prevent confusion of issues, unfair surprise and undueprejudice. (Id. at pp. 475-476.) The admissibility of bad-character evidence depends upon the materiality of the fact to be proved or disproved, and the tendencyofthe _proffered evidence to prove or disprove it. (People v. Catlin, supra, 26 Cal.4th at pp. 145-146.) There must be a strong foundational showingthat the evidenceis sufficiently relevant and probative of the legitimate issue for whichit is offered to outweigh the potential, inherent prejudice of such evidence. (See People v. Poulin (1972) 27 Cal.App.3d 54, 65.) Because | such evidence can be highly inflammatory and prejudicial, its admissibility must be “scrutinized with great care.” (People v. Thompson (1980) 27 Cal.3d 303, 315, disapproved on another grounds, People v. Williams (1988) 44 Cal.3d 883, 907, n. 7.) Gang-related evidence, like other bad character evidence,is not ‘admissible when introduced only to “show a defendant’s criminal disposition or bad character as a meansof creating an inference the defendant committed the charged offense.” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) Such evidence is admissible if it is relevant to issues in the case, is not more prejudicial than probative, and is not cumulative. (See People v. Ruiz (1998) 62 Cal.App.4th 234, 240.) In addition, this Court has cautioned that even if gang-related evidenceis relevant, it may have a highly inflammatory impact on the jury, and therefore, “trial courts should carefully scrutinize such evidence before admitting it.” (People v. Williams (1997) 16 Cal.4th 153, 193; People v. Gurule (2002) 28 Cal.4th 557, 653, quoting People v. Champion (1995) 9 Cal.4th 879, 922.) 128 Under Evidence Code section 352, a trial court must exclude evidenceif its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Smithey (1999) 20 Cal.4th 936, 973.) Evidence should be excluded undersection 352 ifit uniquely tends to evoke an emotionalbias against the defendant as an individual, and yet hasvery little effect on the issues.. (People v. Coddington (2000) 23 Cal.4th 529, 588, overruled on other grounds, Price v. Superior Court (2001) 25 Cal.4th 1046.) Evidence is substantially more prejudicial than probative under section 352 if it poses an intolerable “risk to the fairness of the proceedingsorthe reliability of the outcome.” (People v. Alvarez (1996) 14 Cal.4th 155, 204, fn. 14.) In doubtful cases, the exercise of discretion to admit or exclude evidence pursuant to Evidence Codesection 352 should favor the defendant, because in comparing prejudicial: impact with probative value, the balance “is particularly delicate and critical where whatis at stake is a criminal defendant’s liberty.” (People v. Lavergne (1971) 4 Cal.3d 735, 744; People v. Murphy (1963) 59 Cal.2d 818, 829.) C. Because Appellant and Co-Defendant Palma Offered to Stipulate to the “Exact Language”of the Gang Enhancement, the Gang Enhancement WasNot “Actually In Dispute” and the Proffered Gang Evidence was Irrelevant Any ultimate fact the prosecution seeks to establish with bad- eee 999character evidence mustbe both “material” and “actually in dispute. (People v. Thompson, supra, 27 Cal.3d at p. 315, quoting People v. Thomas (1978) 20 Cal.3d 457, 467; see also People v. Williams, supra, 44 Cal.3d at p. 905; People v. Hall (1980) 28 Cal.3d 143, 152, overruled on other ground 129 in People v. Newman (1999) 21 Cal.4th 413, 419-420 [“If a fact is not genuinely disputed, evidence offered to prove that factis irrelevant and inadmissible”].) ‘“Materiality concernsthe fit between the evidence and the case. ... If [] evidence is offered to help prove a proposition that is not a matter in issue, the evidence is immaterial.” (1 McCormick, Evidence (6" ed. 2006) Relevance, § 185, p. 729.) Here, whether or not the gang enhancement wastrue wasnotactually in dispute, because both appellant and his co-defendantoffered to stipulate to the “exact” language of the gang-enhancementallegations. (12 RT 1528.) “A stipulation is ‘a[n] agreement between opposing counsel’ [citation] . . . [that] serves ‘to obviate the need for proof and narrow the range of litigable issues’ [citation] . . . [and] ‘may lawfully include or limit 999issues or defensesto betried [citations]’” (County ofSacramentov. Worker’s Compensation Appeals Board (2000) 77 Cal.App.4th 1114, 1118), andis “conclusive with respect to the matters stated init.” (Harris y. Spinali Auto Sales (1966) 240 Cal.App.2d 447, 452.) While this Court has recognized that the prosecution is not required to accept a stipulation as a general matter, it has consistently recognized an exceptionto that rule when the stipulation “constitute[s] an offer to admit completely an elementof the charged crime.” (People v. Sakarias (2000) 22 Cal.4th 596, 629.) Thus, “if the defendantoffers to admit the existence of an elementof the crime,the prosecutor must acceptthat offer, and refrain from introducing evidence to prove that element.” (People v. Hall, supra, 28 Cal.3d at p. 152; accord, People v. Bonin (1989) 47 Cal.3d 808, 849 [because the defense offered to stipulate to an element, “the court should have compelled the prosecution to accept the defendant’s offer and barredit from eliciting testimony on the facts covered by the proposedstipulation”]; compare People v. Roldan 130 (2005) 35 Cal.4th 646, 706-707, fn. 24 [where defendant declined to stipulate to an element, his not-guilty plea placed all elements in issue for purposes of section 1101].) Here, defense counsel offered to stipulate not only to the defendants’ membership in the Sangra gang (12 RT 1522, 1528, 1541), but also to the “exact” language of the gang-enhancementallegation as set forth in the indictment. (12 RT 1528.) Therefore, as defense counsel argued; the proposedstipulation would have “relieve[d] the burden of the People of proving that allegation.” (12 RT 1528.) Thus, that stipulation would have relieved the prosecution of any burden to prove the gang enhancement. (See, e.g., Harris v. Spinali Auto Sales, supra, 240 Cal.App.2d at p. 452.) Accordingly, this case is distinguishable from People v. Arias (1996) 13 Cal.4th 92, where the defendant, after “los[ing] his bid” to sever rape and robbery charges based on oneincident from robbery and murder charges based on a subsequentincident, offered to “stipulate to his commission of [the rape and robbery] in order to keep [evidence of those crimes] from the jury considering his guilt” on the robbery and murder charges. (/d. at pp. 130-131.) This Court held that the proposed stipulation “was not an adequate substitute” for evidence about the other crimes because: (1) the defendant refused to admit the two material issues the prosecutor soughtto prove with the other-crimes evidence; and (2) “the People would havelost material circumstantial evidence on [those] issues” if forced to acceptthe stipulation. (/d. at p. 131.) Here, accepting the proposed stipulation would have cost the | prosecutor nothing legitimate. It would only have cost him the improper windfall benefit of introducing a raft of extremely prejudicial, and minimally probative, evidence, the admission of which madeit almost 131 certain that the jurors would decide the case based upon inappropriate considerations. The fact that the prosecutor rejected appellant’s offer to stipulate to the “exact” language of the gang enhancementsuggests thathis real aim wasto introduce the gang evidence precisely because it would be so prejudicial, and because the jurors would probably draw the forbidden inference from it that appellant “had a propensity to commit[such] crimes,” and would treat that inference as “circumstantial evidencethat [appellant] committed the charged offense.” (People v. Karis (1988) 46 Cal.3d-612, 636.) D. ‘The Prejudicial Effect of the Evidence Far Outweighed Any Minimal Probative Value In this case, the only purported probative value of the challenged _ gang evidence wasto establish that appellant and co-defendant Palma were membersofthe Sangra street gang, and circumstantially that the Sangra gang was a “criminal street gang” within the meaningof the gang enhancement. However, neither of those propositions wasin dispute. There was nodispute thatthe defendants were membersof the Sangrastreet gang. Indeed, both defendants had prominent “Sangra” tattoos — Palma on his neck and appellant on his back. (Exhs. 50-57; 1 Supp IV 108-123.) Prosecution witnesses Veronica Lopez, Victor Jimenez, Renee Chavez, and Witness No. 16 all testified, without objection from the defense, that they knewthat appellant was a memberof the Sangra gang.>’ Similarly, Jimenez, Witness No. 16, and Richard Valdemar provided testimonyestablishing that Palma was a memberof the gang, again without 57 See 13 RT 1662-1663 (Veronica Lopez); 13 RT 1734 (Victor Jimenez); 14 RT 1949 (Renee Chavez); 20 RT 2677 (Witness No. 16). 132 defense objection.** Moreover, several witnessestestified that Torres, Logan, and Ortiz were membersof the Sangra gang, and Victor Jimenez and Witness No. 16 acknowledged that they were themselves members.” Clearly, whether the defendants were membersof the Sangra gang wasnot in dispute. ~ Moreover, the prosecution did not need the challenged gang evidenceto establish that Sangra was a “criminalstreet gang” within the meaningofthe alleged gang enhancement; it had ample expert testimony and documentary evidence to establish that proposition. Dan Rosenberg, a sergeant assigned to the gang unit of the Los Angeles County Sheriff’s Department, offered his expert opinion that the Sangra gang was an “ongoing organization, association, or group of three or more members.” (19 RT 2506.) Rosenberg further testified that-it was his expert opinionthat there was “no doubt”that one of the primary activities of the Sangra street gang was the commission of various felony offenses, that Sangra has a “common name”and “acommonidentifying sign or symbol,” and that its members“throw particular gang signs exclusive to Sangra.” (19 RT 2508.) Rosenbergtestified that Sangra wasa “terrorist street gang” andthatit had been classified as such in March 1990 by the Los Angeles Superior Court. (19 RT 2506.) Without defense objection, the court order was marked as 8 See 13 RT 1734 (Victor Jimenez); 18 RT 2278 (Richard Valdemar); 20 RT 2678 (Witness No. 16). ° See 13 RT 1736(Victor Jimenez about Torres); 14 RT 1913 (Elizabeth Torres about Torres); 14 RT 1950 (Renee Chavez aboutTorres); 19 RT 2542 (Jill Steele about Torres); 1 SuppCT IV 47 (Witness No.13 tape-recorded statement about Torres); 14 RT 1948 (Renee Chavez about Logan); 14 RT 1969 (Renee Chavez about Ortiz); 13 RT 1734 (Victor Jimenez about himself); 20 RT 2677 (Witness No. 16 about himself). 133 Exhibit 71 and shownto Rosenberg to support his opinion that Sangra was a terrorist gang. (19 RT 2507.) Althoughthe prosecution did not bother to properly authenticate the court order, had it done so the court order alone would have conclusively established that Sangra wasa “criminalstreet gang” within the terms of the gang enhancement, obviating the need for the prosecutionto introduceall of the inflammatory gang-related evidence challenged here. What wasin dispute was not appellant’s association with the Sangra gang,but, specifically, whether or not appellant was involvedin the shootings at the Maxson Roadresidence. The prosecution’s evidence in this regard was based primarily on the testimony of a fellow gang member, Witness No. 16, whotestified under a grant of immunity and whose credibility was suspect. Consequently, the prosecution soughtto bolsterits case by introducing a raft of gang-related evidence, much of which had absolutely nothing to do with appellant, in order to frighten the jury and to insinuate that appellant was guilty by virtue of his association with the Sangra gang. . This evidence should not have been admitted under Evidence Code sections 352 and 1101. The admission of this evidence was extremely prejudicial to appellant, while its probative value wasslight. Evenif the evidence had somerelevance to motive and intent, there was no connection between these photographs, drawings, and gang graffiti and the circumstancesleading to the shootings in this particular case. | Moreover, there was a high degree of dangerthat the admission of the challenged gang-related evidence would confuse and prejudice the jury. 8 The prosecution subsequently withdrew Exhibit 71 because it was a hearsay document. (26 RT 3291.) 134 Most significantly, this evidence had no probative valueasto thecritical disputed question of whether appellant had any involvementin the charged | offenses.. However, because the evidence linked appellant to other Sangra gang members,it likely led the jury to believe that appellant had the propensity to commit the kind of crimes for which he wasontrial because of his association with the gang. Finally, the cumulative impact of this evidence shifted the focus from the properly-admitted testimony and turnedthetrial into what was essentially an exercise in character assassination and guilt by association. In light of its misleading and inflammatory nature, andits negligible probative value, the challenged gang-related evidence should not have been admitted. E. The Admissionof the Challenged Gang Evidence Violated Appellant’s Constitutional Rights The admission of this evidence violated appellant’s right to due process under the Fourteenth Amendment, which “protects the accused against conviction except upon proof [by the State] beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (Un re Winship (1970) 397 U.S. 358, 364.) Thetrial court’s erroneous admission of the evidence lightened the prosecution’s burden of proof, improperly bolstering the credibility of witnesses and permitting the jury to find appellant guilty in large part because of his criminal propensity. (See, e.g., Sandstrom v. Montana (1979) 442 U.S. 510, 520-524.) Moreover, the introduction of the evidence so infected the trial as to render appellant’s convictions fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 67; see also McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 135 1385-1386 [admission of irrelevant propensity evidence renderedtrial fundamentally unfair].) In addition, the admission of this evidence violated appellant’s due processrights by arbitrarily depriving himofa liberty interest created by Evidence Code sections 352 and 1101 notto havehis guilt determined by inflammatory propensity evidence. By ignoring well-established state law whichprevents the state from using evidence admitted for a limited purpose as general propensity evidence and which excludes the use of unduly ~ prejudicial evidence, the state court arbitrarily deprived appellantof a state- created liberty interest. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346-347.) Appellant wasalso deprived of hisrightto a reliable adjudication at all stages of a death penalty case. (See Penry v. Lynaugh (1989) 492 U.S. 302, 328, abrogated on other grounds, Atkins v. Virginia (2002) 536 U.S. 304; Lockett v. Ohio (1978) 438 U.S. 586, 603-605; Beck v. Alabama (1980) 447 U.S. 625, 638.) F. The Use of the Challenged Gang Evidence Was Not Harmless Asdiscussed above, the prosecution’s case against appellant was far from overwhelming,and relied on witnesses of dubiouscredibility to establish the key facts that connected appellantto the shootings. To persuadethe jury that appellant was guilty, the prosecutor sought to significantly bolster its case through innuendo,character assassination, and guilt by association by introducing extremely inflammatory evidencethat impermissibly portrayed appellant as a person with a criminal propensity. Noneof this evidence had any relevance to the murders, butit had a strong likelihood to inflame the jury and mislead it with regard to appellant’s guilt. 136 ‘Moreover, the jury was neverinstructed that this evidence could not be used as evidence of appellant’s bad character or criminal propensity. (See, e.g., CALJIC No. 2.50.) The lack of instructions to guide the jury permitted the unrestricted use of the objectionable evidence. While there is no duty to give limiting instructions sua sponte (People v. Collie (1981) 30 Cal.3d 43, 63-64), their absence from a case where highly inflammatory character evidenceis introduced heightensthe prejudicial effect of the error. Logically, the absence of limiting instructions enhancesthe likelihood that the jury will “misuse [the evidence] as charactertrait or propensity evidence” and “use such evidence to punish a defendant because heis a person of bad character, rather than focusing upon the question of what happened on the occasion of the charged offense.” (People v. Gibson (1976) 56 Cal.App.3d 119, 128-129.) Finally, the fact that the jury deliberated at the guilt phase for more than 16 hours, over the course of six days, without reaching a verdict demonstrates that this was a close case. (See Argmt. 11, infra.) This Court has recognized that lengthy deliberations indicate that the case was close. (See, e.g., People v. Cardenas (1982) 31 Cal.3d 897, 907 [12 hours of deliberation showsclose clase]; People v. Woodard (1979) 23 Cal.3d 329, 341 [6 hours]; accord Lawson v. Borg (1995) 60 F.3d 608, 612 [9 hours].) During those eight days of deliberation, the jurors communicated with the trial court frequently, requesting readback of numerous witnesses andre- playing of videotapes. These facts were also indicative of a close case. (See People v. Pearch (1991) 229 Cal.App.3d 1282, 1295.) Given the weakness in the prosecution’s case, its reliance on this inflammatory evidence, particularly when considered in combination with the other gang-related evidence (see Aremt. 4, infra), was extremely 137 prejudicial especially in the absence of an adequatelimiting instruction. Reversal is required because the People cannotestablish that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 USS. 18, 24.) \\ \\ 138 4 ’ THE TRIAL COURT IMPROPERLY ADMITTED HIGHLY PREJUDICIAL AND IRRELEVANT TESTIMONY FROM THREE WITNESSES ABOUT THREATENING INCIDENTS, NONE OF WHICH WAS SHOWNTO BE RELATED TO APPELLANT,IN VIOLATION OF APPELLANT’S RIGHTSTO A FAIR TRIAL AND RELIABLE JURY VERDICTS UNDER THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS Over appellant’s repeated objections, thetrial court improperly permitted the prosecutorto elicit speculative, irrelevant and highly | prejudicial testimony from three witnesses — David Sandate, Witness No. 16, and Witness No. 13 — about threatening incidents and abouttheir fear of testifying in this case. The prejudicial impact of admitting that testimony was compoundedby the prosecutor’s references during closing argumentto these incidents. The admission of this evidence fatally infected thetrial with unfairness and violated appellant’s rights to due process anda fair trial, an impartial jury, and a reliable penalty determination. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16 & 17.) A. Factual Background 1. Testimony of Witness No. 13 Asdetailed in the Statement of Facts, supra, Witness No. 13, Anthony Torres’s sister, testified that sometime between 7:30 and 9:00 p-m., approximately six to eight men, some of whom she recognized as her brother’s friends, came to her mother’s house and wentinto her brother’s - bedroom. (15 RT 2082, 2086, 2096.) From photographic lineups, Witness No. 13 identified her brother, appellant, and Daniel Loganasthree of the men that she saw at her mother’s housethat night. (15 RT 2088-2092; Exhs. 15, 16, and 17.) After reviewing a fourth photographic lineup 139 containing a photograph of co-defendant Palma, Witness No.13 testified that the person in photograph 3 looked “similar” to the man who had identified himself as “Jimmy” when he had cometo her mother’s house earlier that evening, but she could not be certain on the basis of the photographin the lineup. (15 RT 2093-2094.) The prosecutor then asked Witness No. 13 if she had been “scared” whenher brother’s friends cameto the house, and she respondedthat she had not. (15 RT 2096-2097.) Despite Witness No. 13’s responsethat there was nothing aboutthe fact that the men wentinto her brother’s room that scared her, the prosecutor then asked her whetherthe real reason sheleft her mother’s house wasthat she was “scared.” (15 RT 2097.) In response, Witness No. 13 acknowledged that the “traffic coming in and out”of her mother’s house had madeher “uncomfortable,” so she left. (15 RT 2097.) The prosecutor then asked Witness No. 13 whether she was “concerned”at the time — and was“still concerned”at the time of her testimony — that the men hadseen her and her twochildren at her mother’s house. (15 RT 2097.) She acknowledged that she was. (15 RT 2097.) Theprosecutor then read from the transcript of Witness No. 13’s May1, 1995, interview with Investigator Davis, and asked whether she recalled what she told Davis. (15 RT 2097-2098.) WhenWitness No. 13 respondedthat she did not remember whatshe told Investigator Davis, the prosecutoragaintriedto elicit that Witness No. 13 was “scared.” However, Witness No. 13 maintained that there was no “particular reason” why she wasunableto recall certain details of what she hadtold Investigator Davis: Q. Do you remember what you said [when Investigator Davis asked you whatthe “guys” who cameto the house looked like]? : A. No, I don’t. 140 © O P O > Is there a particular reason that you are unable to remember whatyou said? No. No reasonat all? No. Are you afraid to testify? MR. BESTARD:Objection as leading. No foundation. THE COURT:Overruled. THE WITNESS:Yes. (15 RT 2097-2098.) Over defense objection, the prosecutor then asked Witness No. 13 if she believed she and her children would be killed because of her testimony: Q. A. Q. Do you think you’re going to be killed? Yes. Do you think your two children are going to be killed? MR. UHALLEY:Your Honor, I am going to object. Improper, calling for a conclusion. THE COURT:Overruled. Goes to her state of mind asit affects credibility. BY MR. MONAGHAN: Q. A. Q. A. Q. A. Do youthink your children are going to be killed? Yes. I don’t meantoput you on the spot, ma’am. Do you remember whatyou told the police? I don’t rememberall ofit. Do you remember more than you’re admitting to me right now? . No. (15 RT 2098-2099.) 141 The prosecutor then asked Witness No.13 to identify co-defendant Palma as the man who had comeby her mother’s houseearlier in the evening and identified himself as “Jimmy.” (15 RT 2100.) Witness No. 13 respondedthat while Palma looked “similar,” she could not identify him with certainty. (15 RT 2100-2101.) | In response, the prosecutor asked Witness No. 13 about two “drive- by shootings” that apparently had occurred at her former workplace: Q. Now,youstill work;is that correct? Yes. But at a different location than you usedto; is that correct? Yes. O P O The place that you work at now — MR. BESTARD:Objection asirrelevant. THE COURT:Overruled. BY MR. MONAGHAN: Q. Since you started working atthat location, have there been two drive-by shootings in the middle of the night? A. Yes. MR. UHALLEY:Your Honor,objection. THE COURT:Objection’s overruled. Again,it goes to her state of mindasit affects her credibility. BY MR. MONAGHAN: Q. What shift do you workat that location? A. Anywherebetween 7:00 a.m. and 10:00 p.m.at night. Q. And twice since you’ ve been there that location’s had the front glass windowsshotout? A. Yes. 142 Q. Doesthat scare you? A. Yes. (15 RT 2103.)* The prosecutor concluded his examination of Witness No. 13 by asking this question: Q. If you had to do this over and you hadthe information that you had, and I am not going to ask you whatyour brother told ®! At the conclusion of his direct examination of Witness No. 13, the prosecutor returned to the subject of her fear, asking a series of questions aboutherinitial reluctance to come forward. He elicited from Witness No. 13 that: (1) when she first came forward she did not want anyone to know that she had done so (15 RT 2110); (2) she told Detective Pennyat that time that she didn’t want anyone to know what she wasdoing (15 RT 2110); and (3) she told Investigator Davis on April 27, 1995, that she did not wantto ever come forward. (15 RT 2110.) Shetestified that she did not wantto come forward because she wasafraid (15 RT 2110) and that she nevertold her mother, brother or husband what she was doing. (15 RT 2111.) She acknowledged that “at some point” later the prosecutor and another investigator told her that they would relocate her so she would not be harmed. (15 RT 2111.) She testified that she had in fact moved from the house where she had beenliving at the time of the murders, and worked at a different location. (15 RT 2111.) Finally, she testified that at some point after she testified before the grand jury, she had a meeting with the prosecutor in which hetold her that her name would be redacted, thoughit would be clear from the transcripts that she was AnthonyTorres’s sister. (15 RT 2112.) While the defense did not object to the elicitation of this testimony, since the trial court had repeatedly overruled defense objectionsto similar testimony throughout Witness No. 13’s direct examination, any such objection by the defense would have clearly been futile, and thus was. unnecessary. (People v. Antick (1975) 15 Cal.3d 79, 95; Green v. Southern Pac. Co. (1898) 122 Cal. 563, 565. [“Where a party has once formally taken exception to a certain line or character of evidence, he is not required to renew the objection at each recurrencethereafter of the objectionable matter arising in the examination of other witnesses; and his silence will not debar him from having the exception reviewed.”].) 143 you, if you hadthat informationall over again knowing what you know now,would you have come forward with it? A. No. Q. Why? A. It’s too scary. I’m afraid. (15 RT 2113-2114.) 2. Testimony of David Sandate David Sandate, the former custodian of records of Expo Electronics, the companythat provided pagerservice to Luis Macielat the time of the Maxson Street murders, © wascalled by the prosecution for the ostensible purpose of authenticating a copy of a contract between Expo Electronics and Maciel for pager service. (20 RT 2573-2575.) Without hesitation or difficulty, Sandate authenticated the document, andtestified that the contract indicated that Maciel had pager service with the company on April 22, 1995, and that Maciel’s pager number was (818) 710-4921. (20 RT 2573.) . After eliciting this perfunctory and uncontroversial testimony, the prosecutor asked Sandate if he had previouslytestified before the grand jury in this case, and if he had identified Maciel from a photographat that time. - (20 RT 2575.) Sandate acknowledgedthat he had. (20 RT 2575.) Using leading questions, the prosecutor then asked Sandate about a vaguely intimidating incident in which an unknown “individual” confronted him and asked him why hewastestifying against Maciel: ® Sandate no longer worked for Expo Electronics by the time of appellant’s trial, and the record is not clear when he was employed by the company. Hetestified that he used to be employed by ExpoElectronics and had then been the custodian of records, but the prosecutor did not establish whenthat was. (20 RT 2574.) | 144 Q. Were you approachedat your businessbyanindividual? A. Yes. Q. And were you asked what you were doingtestifying against Mr. Maciel? A. Yes. Q. And did you subsequently leave Expo Communications? A. No, I did not leave the company becauseofthat reason. (20 RT 2575.) Defense counsel objected that this testimony wasirrelevant, but the trial court overruled the objection. (20 RT 2575.) 3. Testimony of Witness No. 16 Asdetailed in the Statement of Facts, supra, Witness No. 16 providedcritical testimony implicating appellant and other Sangra members in the offenses. At no time during his testimony did Witness No. 16 indicate that he had anydifficulty recalling events. Even so, over defense objections the prosecutorelicited from Witness No. 16 on direct examination that he initially refused to answer questions whencalled before the grand jury because he wasscared for his safety and believedthat his family would be killed: | . Q. What did you believe would happen if you got on the stand on December6 with your familystill living in San Gabriel and told the truth about what Jimmy Palmaand [appellant] and others did that night? - A. They’d be killed. MR. UHALLEY:Object, your Honor,irrelevant. MR. BESTARD:Join. THE COURT:Objection’s overruled. MR. BESTARD:Your Honor, no foundation as to what made him believe. 145 THE COURT:Goesto his state of mind. Overruled. (20 RT 2719.) The prosecutor then showed Witness No. 16 a photograph of himself together with other membersof the Sangra gang in which Witness No. 16’s face had been scratched out of the photograph and the number“187” scratched onto his chest. (20 RT 2720; Exh. 58; 1 SuppCT IV 124-125.) The questioning proceeded as follows: BY MR. MONAGHAN: Q. QO P O > O > O a P O P O P > O > Sir, regarding whether or not you believe that your family would have beenkilled [] in good faith or not, I want to show you Exhibit Number58 for identification. HaveI ever shownyouthat picture before? No. Todayat lunchtimedid tell you that the picture existed? Yes. | | Up until today had I even told you that I knew aboutthe picture? No. Are you in that picture? Yes. With other membersof the Sangra street gang?. Yes. - And in whatposition are you,sir? I am in the middle on the bottom. Has something been doneto your face? Yes. What’s been donetoit? It’s been scratchedout. 146 Has something been written on your chest? Yes. What’s that? 187. Do you know whatPenal Code 187 is? Yes. What? Murder. O D P O P O F O P o The person I’m pointing to right now in the exhibit, is that you? Yes.> Q. Does this Exhibit 58 for identification concern you? A. Yes. (20 RT 2720-2721.) B. Applicable Legal Standards- Evidence of third-party efforts to intimidate or dissuade a witness ‘from testifying may be relevant and admissible for two purposes. First, where there is evidencethat the threats were authorized by the defendant, the evidence may be admissible to show the defendant’s consciousnessof guilt. (See, e.g., People v. Hannon (1977) 19 Cal.3d 588, 589; People v. Terry (1962) 57 Cal.2d 538, 565-566.) While authorization maybe proved bycircumstantial evidence,it is well-settled that proof of mererelationship between the defendantandthe third party is, as a matter of law, “no proof of authorization.” (Terry, at p. 567; People v. Perez (1959) 169 Cal.App.2d 473, 478.) Similarly, “proof of a criminal defendant’s ‘mere opportunity’ to authorize a third person to attempt to influence a witness ‘has no value as circumstantial evidence’ that the 147 defendant did so.” (People v. Williams, supra, 16 Cal4th at p. 200, citing People v. Terry, supra, 57 Cal.2d at p. 566.) Threat evidence cannot be probative of the defendant’s consciousnessof guilt if the defendantdid not make, authorize or even know ofthe threat. (People v. Hannon, supra, 19 Cal.3d at p. 589.) Hence, absent proof of authorization, the evidenceis irrelevant and inadmissible against the defendant. (Terry, at pp. 565-566; People v. Weiss (1958) 50 Cal.2d 535, 554; People v. Pitts (1990) 223 Cal.App.3d 606, 778-781; People v. Perez, supra, 169 Cal.App.2d atp. 478.) | Moreover, this Court has warned that “evidence of an anonymous threat not connected with the defendant ‘should at once besuspect as...an endeavorto prejudice the defendant before the jury in a way which he cannot possibly rebut satisfactorily because he does not knowthe true identity of the pretender.’ ” (People v. Mason (1991) 52 Cal.3d 909, 946, quoting People v. Weiss, supra, 50 Cal.2d at p. 554.) Thus, evidence concerning the credibility of a witness should be excludedif the alleged motive or bias is speculative, conjectural or based on mere possibilities. (See People v. Johnson (1984) 159 Cal.App.3d 163, 168; People v. Alfaro (1976) 61 Cal.App.3d 414, 424; People v. Avelar (1961) 193 Cal.App.2d 631, 634-635.) Second, such evidence may be admissible on theissue of the threatened witness’s credibility. Thus, such evidence can, upon proper foundation, be admitted to explain how a witness’s testimony changed to the detriment of the prosecution or why a witness washesitantto identify a person. (See People v. Malone (1988) 47 Cal.3d 1, 30 [fear of retribution by gang membersrequired showingthat retaliation was part of gang practice]; People v. Warren (1988) 45 Cal.3d 471, 484-486 [evidence that 148 witnesses wanted nothing to do with the case relevantafter they refused to identify defendant]; People v. Chacon (1968) 69 Cal.2d 765, 779 [prosecution witness evasive and uncooperative]; People v. Yeats (1984) 150 Cal.App.3d 983, 987 [evidence tending to show that witness was fearful provided a motive for him notto tell the truth].) In such cases, the prosecutor should establish the relevance of the witness’s state of mind by demonstrating that the testimony is inconsistent or otherwise suspect. (People v. Yeats, supra, 150 Cal.App.3dat p. 986.) If “the prosecution .. . first establish[es] the relevance of the witness’s state of mind by demonstrating that the witness’s testimonyis inconsistent or otherwise suspect,” third-party threats may be admissible to impeach a witness on the theory that it showsa “bias, interest, or other motive” not to tell the truth. (/bid.; accord, People v. Burgener (2003) 29 Cal.4th 833, 868; People v. Brooks (1979) 88 Cal.App.3d 180, 187.) C. The Trial Court Erroneously Admitted the Threat Evidence In this case, there was no evidencethat any of the threatening incidents were authorized byorattributable to appellant in any way. Therefore, none of the evidence of threats or offear of testifying was admissible as direct evidenceofguilt. Overdefense objection, the prosecutor elicited from Sandate that he was approachedat his place of business by “an individual” who asked him whathe was doingtestifying against Luis Maciel. (20 RT 2575.) The fact that Maciel was charged as a co-defendantin this case was no evidencethat appellant or the other co-defendants had authorized or had anything to do 149 with the threat at all. (People v. Terry, supra, 57 Cal.2d at p. 567; People v. Perez, supra,169 Cal.App.2d at p. 478.) Hence, evidence of the incident was inadmissible unless it was relevant to Sandate’s credibility or state of mind. | However, Sandate’s credibility and state of mind were plainly not in issue. His perfunctory testimony authenticating a contract for Maciel’s pagerservice provided nobasis for admission of evidence of a threat by an anonymousthird party. Consequently, it was improper to ask Sandate about the incident, since it wasutterly irrelevant to this case. Similarly, the prosecutor failed to establish a proper foundation to introducethe photograph on which “187” had been scratched onto Witness No. 16’s image. As the prosecutor was well aware, Witness No. 16 had neverseen the photograph until the prosecutor showedit to him while he wason the witness stand. (20 RT 2720-2721.) Since Witness No. 16 was not awareof the existence of the photograph at the time ofhis testimony,it could not conceivably have had any bearing onhis state of mind, or account for any supposed evasivenessor inconsistency in his testimony. In any case, the prosecutor never demonstrated that Witness No. 16’s testmony was“inconsistent or otherwise suspect.” (People v. Yeats, supra, 150 Cal.App.3d at p. 986.) Therefore, the prosecutor failed to establish that the evidence was relevant to Witness No. 16’s state of mind. 3 Moreover, the prosecutor’s elicitation of testimony aboutthis incident wasparticularly prejudicial to appellant because he had no way to rebut it without knowing the identity of the “individual” who approached Sandate. (People v. Weiss, supra, 50 Cal.2d at p. 554 [prosecutor’s introduction of anonymousthreats should “at once be suspect as .. . an endeavorto prejudice the defendant before the jury in a way which he cannotpossibly rebut satisfactorily because he does not know thetrue identity of the pretender’’].) 150 With respect to the incidents at Witness No. 13’s workplace, the prosecutor notonly failed to establish that they were authorized by or attributable to the defendants in this case; as he acknowledgedat pretrial hearing, he could not prove that the incidents wererelated to this caseatall. (3 RT 668.) As the prosecutor told the court at that hearing: “We’ ve had another witness, although we can’t pinpoint this happeningto that witness because of this case, that witness worksat a particular business, a supermarket, in a town that has no violence per se.... All ofa sudden on two separate occasionssince that witness has workedat that location the place has been shot up in the early morning hours when only several people would be there; [but] again, we can’t sayfor certain that’s tied to this case ....” (3 RT 668,italics added.) Because the prosecution could not establish that these incidents were evenrelated to this case, this evidence also was not admissible as direct evidence of guilt. Unlike Sandate and Witness No. 16, Witness No. 13 was unable to recall some details of the events about which she hadpreviously told investigating officers. Thus,-at trial she did not remember whether: (1) she had seen a Nissan Maximaatthe house (15 RT 2085); (2) the men at the house had been paged ontheir pagers (15 RT 2086-87); (3) she had indicated that she knew appellant as “Primo” when she identified him from a photographic lineup on May 1, 1995 (15 RT 2089-90); (4) she had been able to identify Palma from a photographic lineup on May1, 1995 (15 RT 2093-94); and (5) there were two guys with “Tricky” when hearrived at the house (15 RT 2095). On each occasion, however, Witness No. 13 affirmedher prior statements to investigators and her preliminaryhearing testimony when the prosecutor refreshed her recollection by reading them to her. (15 RT 2086, 151 2087, 2093, 2094, 2096.) Because Witness No. 13 nevertestified inconsistently with her prior statementsor testimony, the testimony concerning the shooting incidents at her workplace werenot relevant to her credibility. People v. Brooks (1979) 88 Cal.App.3d 180,is instructive. In Brooks, two bakery employees, Shirley Mitchell and Audrey Blount, were in the bakery whenit was robbed. (/d. at pp. 183-184.) During the police investigation of the robbery, both Mitchell and Blountidentified the defendantas the robber. (/d. at p. 184.) Nadine Harris,a friend of the defendant, was seen speaking to him outside the bakery prior to the robbery. (Ibid.) Attrial, Mitchell steadfastly maintained heridentification of the defendant but Blountfailed to identify him as the robber and retracted her pretrial identification. (/bid.) The prosecutor attemptedto elicit from Blount that the changein her testimony wasattributable to an incident in which the defendant’s mother cameto the bakery and attempted to persuade the employees to change their minds abouttheir identifications of the defendant. (Id. at p. 185.) In addition, the prosecutorelicited from Harris that she was “uneasy” because she had been “threatened.” (/bid.) The Court of Appeal held that the evidence of threats with respect to Blount was admissible, because whensheretracted herpretrial identification of the defendant it presented a credibility issue on which the jury wasentitled to hear evidence of the threatening incidentin order to understandthe possible reasons for her contradiction. (People v. Brooks, supra, 88 Cal.App.3d at p. 187.) However, with respect to the evidencethat Harris was threatened, the court held that because there had been no inconsistent testimony prior to the prosecutor’s questioning of Harris, there was no issue of credibility. (Ibid.) Accordingly, the threat evidence was 152 immaterial to any issue and irrelevant to the case. (/bid.) The fact that the prosecutoranticipated thata credibility issue might develop did not make the evidence admissible. The court reversed the defendant’s conviction, finding that: (1) the evidence was erroneously admitted; (2) the cautionary instruction did not cure the error; and (3) the evidence was “extremely prejudicial” to the defendant’s case. (/d. at pp. 187-188.) In this case, while Witness Number 13 had difficulty recalling certain details about what happened at her mother’s house on April 22, 1995, she consistently reaffirmed her prior statements to investigators when the prosecutor broughtthem to her attention. Nothing about Witness ‘Number 13’s testimony suggests that her inability to rememberdetails of the events or the prior statements that she made concerning them was anything other than a simple loss of memory of events that took place more than a year-and-a-half earlier. As in Brooks, because no inconsistent testimony from Witness Number13 precededthe prosecutor’s questioning abouther fear of retaliation, no issue was presented as to her credibility that . warranted admissionof the testimony aboutherfear of testifying and the threatening incidents. As a result, the trial court erred in permitting the prosecution to repeatedly elicit this extremely prejudicial and inherently speculative testimony. D. The Evidence Should Have Been Excluded Under Evidence Code Section 352 Even assuming, arguendo,that the threat evidence possessed some probative value, the trial court abused its discretion under Evidence Code section 352 in admitting it. Evidence of third-party threats or witness intimidation should be excludedifits probative value is substantially outweighedbyits danger of prejudice. (Evid. Code, § 352.) 153 Witness-intimidation evidencecarries far less probative value when offered to bolster a witness’s credibility rather than to impeach a recanting witness or to otherwise explain witness conduct that could damagethe proponent’s case. (United States v. Thomas (7th Cir. 1996) 86 F.3d 647, 654, and authorities cited therein.) Where evidence carries a substantial dangerof prejudicing the jury and either has minimal probative value oris cumulative of other evidence on the same issue, any doubt should be resolved in favor of its exclusion undersection 352. (See, e.g., People v. Balcom (1994) 7 Cal.4th 414, 423 [other crimes]; People v. Ewoldt, supra, 7 Cal.4th at p. 406 [same]; People v. Thompson, supra, 27 Cal.3dat p. 318 [same]; People v. Cardenas, supra, 31 Cal.3d at pp. 904-905 [gang membership]; People v. Avitia (2005) 127 Cal.App.4th 185, 193-194 [gang membership].) As shownabove,the threat evidence with respect to Sandate and Witness No. 16 was irrelevant because the prosecutor failed to establish how their state of mind was in issue. (See Dudley v. Duckworth (7th Cir. 1988) 854 F.2d 967, 970-972 [due process violation to admitthreat evidence purportedly to explain witness’s “nervousness” where no record of such nervousnessapart from that caused by the prosecutorherself].) Because the threat evidence as to Sandate and Witness No. 16 was not admissible for any purpose,it had no probative value whatsoever. Further, it has long been recognized that evidence of unauthorized third-party threats to witnesses carries a substantial risk of unfair prejudice because of the likelihood that the jury will attribute the third party’s conduct to the defendant, and infer from it that he is a bad man whois morelikely than not guilty of the charged crime. (People v. Terry, supra, 57 Cal.2d at pp. 565-566 [admission of unauthorized third-party threats evidence 154 prejudicial error]; People v. Perez, supra, 169 Cal.App.2d at pp. 477-478 [same]; see also People v. Brooks, supra, 88 Cal.App.3d at p. 187 [evidence regarding threats to witnessesis “extremely prejudicial to defendant’); United States v. Thomas, supra, 86 F.3d at p. 654 [“evidence of threats on _ witnesses can be highly prejudicial”]; Ortiz-Sandoval v. Gomez (9th Cir. 1996) 81 F.3d 891, 897 [“‘the potential of unfair prejudice from the introduction of threats is ‘severe’”]; United States v. Guerrero (3rd Cir. 1986) 803 F.2d 783, 785-786 [threats evidence “appeals to the jury’s sympathies, arousesits sense of horror, provokesits instinct to punish, or otherwise may causea jury to base its decision on something other than the established portions of the case”].) Such evidence “can amountto an ‘evidential harpoon’” which “‘becomesso prejudicial to a defendantthat no jury could be expected to applyit solely to the question of the credibility of the witness before it and notto the substantial prejudice of the defendant.’” ~ (Dudley v. Duckworth, supra, 854 F.2d at p. 970,citations omitted.) Indeed, the evidenceis so prejudicial that its admission may deprive the defendantofa fair trial. (Ibid.) E. The Trial Court Committed Prejudicial Error by Failing to Give Appropriate Admonitions and Instructions Limiting the Jury’s Consideration of Evidence of Threats to Witnesses, and Witnesses’ Fearsof Retaliation, to Assessing Credibility _Even assuming, arguendo,that any of the threat evidence was admissible as bearing on the witnesses’ credibility, none of the evidence of fear or threats was admissible as direct evidence of appellant’s guilt. Threats byunidentified persons do not show a defendant’s consciousness of guilt without some evidence — other than mere speculation and accusations by witnesses — that the defendant was responsible for the threats. (See, e.g., 155 United States v. Young (4th Cir. 2001) 248 F.3d 260, 272.) Since there was no evidencethat any of the threats wasattributable to appellant in any way, it is clear that the evidence of these threats was admissible, if at all, solely on the issue of the witnesses’ credibility. Although this Court has held that a trial court generally has no sua sponte duty to instruct on the limited uses of evidence (People v. Hernandez (2004) 33 Cal.4th 1040, 1051), an exception to that rules applies when such evidence: (1) plays a dominantrole in the prosecutor’s case against the accused; (2) is highly prejudicial; and (3) is minimally relevant for any other legitimate purpose. (People v. Milner (1988) 45 Cal.3d 227, 251-252; People v. Collie, supra, 30 Cal.3d at pp. 63-64.) That exception applies to the evidence of fear and threats presented here, because the dominant theme of the prosecutor’s case against appellant was the dangers and threats posed by street gangs. . During his closing argumentat the guilt phase, the prosecutor made extensive reference to the testimony of Witness No. 13 and Witness No. 16 | about the alleged threats. In doing so, the prosecutor went beyond arguing that the evidence wasrelevantto the witnesses’ state of mind, and suggested that the witnesses would haveto “look over[their] shoulders” andlivein fear ofretaliation from the defendantsfortherestoftheir lives: Whatdid [Witness No.13] tell you? [She] told you that she was going to be killed because she came forward and that her children would be killed. Whenshefirst testified to that, let me ask you something, did anybody think, well, maybe she’s overreacting a little bit? Did anybody think that might be the case? Well, you know,sure it’s not going to be pleasant but does shereally believe, really believe that she’s going to be killed because of this and that her children would? 156 And then what happenedafter she testified? A couple days later we put on Witness No. 16. Somebody took a razor blade and scratched outhis face and wrote “187” for murder across his chest. What do you think they’d do to Witness No. 13 and her children? Can you blame herfor notin this courtroom wantingto lay out everysingle thing she knew? Is she a degenerate? That’s what she wascalled yesterday, ladies and gentlemen,a degenerate. A motherthat works, the location where she works she testified to you, uncontradicted testimony, has been shot up _ twice recently, and that scares her. Wouldn’tit scare you if you were her? Witness No. 16 has got a greatlife now, doesn’t he? He hasto be relocated buttestified that his mother sold their. ~ house and at a loss. This is not the federal witness program, ladies and gentlemen. The County of Los Angeles does the best it can. Witness No. 16 hasto look over his shoulders every dayfor the rest of his life. What do you think? Do you think thathis life is a bow] of cherries, ladies and gentlemen? (29 RT 3611-3612.) By suggesting that the witnesses would haveto “look over[their] shoulders” andlive in fear of retaliation from the defendantsforthe rest of " their lives, the prosecutor insinuated that there was a connection between the defendants andthe threats, and encouraged the jury to speculate that the defendants would make good onthethreats in the future. Thus,the threat evidence — which poseda seriousrisk of prejudice even when unconnected to the defendant (see, e.g., People v. Weiss, supra, 50 Cal.2d at p. 554) — wasin fact prejudicial here becauseit was presented in a waythat“left the jury free to find that the defendant was connectedto the threats.” (Peoplev. Brooks, supra, 88 Cal.App.3d at p. 187.) Thus, in terms of the prosecutor’s argument, this case could hardly be more different than that of People v. Mason, supra, wherethe prosecutor “made diligent efforts to ensure that no 157 prejudicial inference arose.” (52 Cal.3d at p. 947.) Here, the prosecutor urged the jury to draw prejudicial, speculative, and improper inferences from the evidence, inferences that had absolutely nothing to do with the limited purpose for which that evidence wasostensibly admitted. Nothing the trial court said to the jurors could have deterred them from treating this evidence of fear and threats as substantive evidence of appellant’s guilt. Thus, while a general instruction on the consideration of evidence admitted for a limited purpose was givenin the guilt phase,that instruction only directed jurors to follow any admonitions previously given regarding the limited purposes for which evidence was received. (CALJIC No.2.09; VI CT 1769; 29 RT 3685-3686.) Moreover, while the guilt phase instructions also gave the jury guidance on howto evaluate the believability of witnesses, that general instruction did nottell the jurors that fear or threats were only relevant to the issue of witness credibility. (CALJIC No. 2.20 (1993 Rev.); VICT 1772; 29 RT 3687-3688.) Because the threat posed by gangs wassuch a dominantpartof the prosecution’s evidence of guilt, the court hada sua sponte dutyto give a limiting instruction at both phasesofthetrial. (Cf. People v. Stewart (2004) 33 Cal.4th 425, 493-494.) The failure to do so waserror. . F. Reversal of the Entire Judgment is Required In sum, the threat evidence was inadmissible under California law or, if admissible, was not properly limited to its admissible purpose. The admission of evidence of threats to witnesses, which the jury was permitted to consider for the truth of the matters asserted, deprived appellant of his right to assert credible defensesat either phase of the trial “free from ‘evidential harpoons.”” (Dudley v. Duckworth, supra, 854 F.2d at p. 972.) The erroneous admission of the evidence, without a limiting instruction, 158 denied appellant his constitutional rights to due processandto fair trial by jury (U.S. Const., 6th & 14th Amends.), and arbitrarily deprived him of his state-created liberty interest in not being convicted onirrelevant, speculative and statutorily-prohibited evidence, also a due processviolation. (U.S. Const., 14th Amend; see, e.g., Hicks v. Oklahoma (1980) 447 U.S. 343, 346.) In addition, since this inherently and highly prejudicial threat evidence wasalso improperly considered by the jury at the penalty phase, its admission violated appellant’s constitutional right to a reliable penalty verdict (U.S. Const., 8th & 14th Amends.), andit is at least reasonably possible that it skewed the essentially “normative” penalty determination against him. (See People v. Brown (1988) 46 Cal.3d 432, 447-448.) The entire judgment musttherefore be reversed. // I 159 5 THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO INTRODUCE THE HEARSAY STATEMENTS OF RAYMOND SHYROCKAS “DECLARATIONS AGAINST INTEREST” UNDER EVIDENCE CODE SECTION 1230 Thetrial court erroneously allowed the prosecution to introduce out- of-court statements by a memberof the Mexican Mafia underthe hearsay exception for “declarations against interest” in Evidence Code section 1230. Those statements were inadmissible as declarations against interest because they failed to satisfy the requisite criteria under that hearsay exception. Moreover, the prosecution failed to meet its burden to show thatthe declarant was unavailable to testify at trial. The admission of this evidence - also violated appellant’s rights guaranteed by the confrontation clauses of the United States Constitution and the California Constitution. Because the state cannot prove the admission of this evidence was not harmless beyond a reasonable doubt, reversal of the entire judgmentis required. (Chapman v. California (1967) 386 U.S. 18.) A. Proceedings Below 1. Pretrial Proceedings Prior to trial, the prosecution filed a motion and points and authorities in support of the admission of certain out-of-court statements made by non-testifying witnesses. (VI CT 1530-1546.) Among the statements the prosecution sought to present were statements by Raymond Shyrock, an alleged memberof the Mexican Mafia prison gang. (VI CT 1531.) The prosecution intended to introduce Shyrock’s statements through the testimony of Los Angeles County Sheriff Sergeant Richard Valdemar, who had monitored what the prosecution maintained was a meeting of 160 membersof the Mexican Mafia that was held in an unidentified hotel room in January 1995. (VI CT 1531.) Valdemar testified that during that meeting Shyrock make the following statement: I don’t know if you ever heard of this brother Dido. Droppedout a long time ago. He’s in an apartment where I wasliving. The motherfucker wasliving right downstairs. Never showedhis face. All kinds of people in the pad. Bunchofsisters and kids,all kinds of shit. So I am trying to figure how to —I need silenceris what I need. (VI CT 1539.) At a pretrial hearing on the prosecution’s motion, the prosecutor argued that while Shyrock’s out-of-court statement was hearsay, it was admissible as a “declaration against interest” under Evidence Code section 1230.% (2B RT 506-510.) Hesaid the statement would be offered to show “the identity at least of who would be involved in the conspiracy,that is, the Mexican Mafia, and why they wanted... these people killed.” (2B RT 506.) As the prosecutor explained tothe trial court: The reasonable interpretation or a reasonable interpretation of that statement is that Raymond Shyrockas an active memberof the Mexican Mafia was going to make an “ Evidence Codesection 1230 provides: Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsayrule 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 therisk of civil or criminalliability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an objectof hatred, ridicule, or social disgrace in the community,that a reasonable. man in his position would not have made the statement unless he believedit to be true. 161 effort to have that dropout killed, that he was awarethat there were a numberof people in the apartment. He found out. He knew where he wasliving andthat in order to ~ to carry out the murder in such a way that he or whoeverhe had do it was not caught he talked aboutthe fact that he neededa silencer. (2B RT 508.) Whenthetrial court asked whether Shyrock wasavailable to testify the prosecutor asked the court to assume,“for the purposeofthis proceeding,”that “he’s unavailable.” (2B RT 508.) Hetold the court that Shyrock wasin custody at the Metropolitan Detention Center, was a defendant in a RICO prosecution that was scheduled to goto trial in October, and had a Fifth Amendmentprivilege notto testify. (2B RT 508.) In order to establish that Shyrock would be “unavailable”at trial, the prosecutortold the court that he would “havehis attorney fill out a documentindicating that if he wascalled to testify he would take the Fifth.” (2B RT 509.) The prosecutor addedthat the federal prosecutors had advised him that they would “oppose any motion to bring [Shyrock] over here either as a witness or a defendant.” (2B RT 509.) The prosecutor argued that Shyrock’s out-of-court statements were sufficiently “reliable” because they were made “to other membersof the Mexican Mafia.” (2B RT 506.) As the prosecutor explained: “Clearly, that’s the kind of time where he’s going to be honest, above board. He’s not going to believe that what he says is going to be repeated.” (2B RT 506-507.) Over defense objection, the court found that Shyrock’s out-of-court statement (1) satisfied the requirements for admission as a declaration against interest, and (2) was more probative than prejudicial. (2B RT 510- 517.) 162 2. Evidence Presented at Trial During the guilt phase oftrial, the prosecution called Sgt. Richard Valdemar to testify that, pursuant to a federal court order, he monitored a meeting of the Mexican Mafia in January 1995, at which Raymond Shyrock waspresent. (18 RT 2280-2281.) Q. A. A. In January of 1995 did you monitor pursuantto the federal judge’s order a particular meeting? Yes,sir, I did. And at that meeting did you overhear — and if you need to refer to something let me know and I will give you your notebook. Did you overhear Raymond Shyrockrefer to a man Dido? Yes, sir, I did. And can youtell us exactly what he said? Or if you need to refer — [...] During the meeting he mentioned, Raymond Shyrock,thatis, mentioned — “I don’t know if you have everheard ofthis brother Dido. He dropped out a long time ago. He’s in an apartment where I wasliving. The mother fuckerwasliving right downstairs but never showed his face. All kinds of people in the pad, bunch of youngsisters and kids,all kinds of shit. So ’m trying to figure out how to — I need a silenceris whatI need.” (18 RT 2280-2281.) B. Applicable Legal Principles 1, The General Rule Against Hearsay Evidenceof a statement offered to prove the truth of the matter asserted is inadmissible unless it comes within one of the established exceptions to the hearsay rule (Evid. Code, § 1200; People v. Noguera (1992) 4 Cal.4th 599, 620-621), and is not “inadmissible against the 163 defendant under the Constitution of the United States or the State of California” (Evid. Code, § 1204). “The chief reasons for the general rule of inadmissibility [of hearsay] are that the statements are not made underoath, the adverse party has no opportunity to cross-examinethe declarant, and the jury cannot observethe declarant's demeanor while makingthe statements. [Citations.]” (Peoplev. Duarte (2000) 24 Cal.4th 603, 610; see also Williamson v. United States (1994) 512 U.S. 594, 598-599 [discussing similar rationale underlying federal hearsay rule].)® The “lack of any opportunity for the adversary to . cross-examinethe absent declarant whose out-of-court statementis reported is today accepted as the main justification for the exclusion of hearsay.” (2 McCormick, Evidence (5th ed. 1999) Hearsay, § 245, p. 94.) Thus, as this Court has observed, the hearsay ruleis “related”to the constitutional right of confrontation: The general rule that hearsay is inadmissible . . . has a recognized constitutional dimension,at least in the criminal context, becauseit is related to the confrontation clause of the SixthAmendmentto the United States Constitution. (See Idaho v. Wright (1990) 497 U.S. 805[. . .].) (In re Cindy L. v. Edgar L. (1997) 17 Cal.4th 15, 27.) 6 “The exclusion of [hearsay], in other cases, stands upon the general consideration that it is not upon oath; that the party affected by it has no opportunity of cross-examination;that it often supposes better evidence behind;that it is peculiarly liable to be obtained by fraudulent contrivances; and aboveall,that it is exceedingly infirm, unsatisfactory and intrinsically weak in its very nature and character.” (Ellicott and Meredith v. Pearl (1836) 35 U.S. (Mem.) 412, 436.) 164 2. The Confrontation Clause The confrontation clause of the Sixth Amendment, extended to the states by the Fourteenth Amendment, guaranteestheright of a criminal defendant“to be confronted with the witnesses against him.” (See Pointer v. Texas (1965) 380 U.S. 400, 406.) The confrontation clause “reflects a preference for face-to-face confrontation attrial” accomplished through cross-examination of witnesses. (Ohio v. Roberts (1980) 448 U.S. 56, 62- 63.) In short, the Clause envisions “a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the consciencesof the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanoruponthe stand and the manner in which hegiveshis testimony whether he is worthy of belief.” . (Id. at pp. 63-64, quoting Mattox v. United States (1895) 156 US. 237, 242- 43.) The right of confrontation is essentialto a fair trial in that it promotesreliability in criminal trials and ensures that convictions will not result from the testimony of individuals whose credibility has not been “test[ed] in the crucible of cross-examination.” (Crawford v. Washington (2004) 541 U.S. 36, 61.) When the prosecution seeksto offer a declarant’s out-of-court statements against the accused, the court must decide whether the confrontation clause permits the governmentto deny the accusedhis usual right to force the declarant “to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth.’” (California 165 v. Green (1970) 399 U.S. 149, 158, footnote and citation omitted; accord, Lilly v. Virginia (1999) 527 U.S. 116, 123-124.) For nearly 25 years, the question of whether an unavailable witness’s. prior statements could be used against a criminal defendantat trial was governed by Ohio v. Roberts, supra, 448 U.S. 56, which provides: [W]hen a hearsay declarant is not present for cross- examinationattrial, the Confrontation Clause normally requires a showingthat he is unavailable. Even then,his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case ’ where the evidencefalls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. (Id. at p. 66.) | However,the Court recently held that “testimonial” hearsay evidence can be admitted consistent with the confrontation clause only if the witness was unavailable and the defendant had a prior opportunity for cross-examination. (Crawford v. Washington, supra, 541 U.S. 36.) The Court ruled that “[w]here testimonial statements are at issue, the only indicium ofreliability sufficient to satisfy constitutional demandsis the one the Constitution actually prescribes: confrontation.” (/d. at p. 68-69.) The Court did not attemptto define all types of statements that might be deemed 6 The hearsayrule has beenlinked to goals that go beyond the concessions that might be obtained on cross-examination. Theoathis believed to impress witnesses with the importanceoftestifying truthfully, and having witnessestestify before the factfinders enables them to take the witnesses’ demeanorinto accountin assessing their credibility. Subjecting witnesses to a searching cross-examination also helps the opposing party expose inadvertent as well as conscious inaccuracies in perception, recollection and narration. (See Fed. Rules Evid., art. VIII Advisory Committee’s Note.) 166 “testimonial,” but held that “testimonial” statements include, at a minimum, “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and [statements madein response] to police interrogations.” (Jd.at p. 68.) C. The Trial Court Erred in Admitting Evidence of the Out- Of-Court Statements, Because That Evidence Did Not Satisfy the Requirements of Evidence Code Section 1230 Evidenceof a statementthat is offered to prove the truth of the matter asserted therein is inadmissible unlessit (1) comes within one ofthe established exceptions to the hearsay rule (Evid. Code, § 1200; People v. Noguera, supra, 4 Cal.4th at pp. 620-621), and (2)is not “inadmissible against the defendant under the Constitution of the United States or the Stateof California” (Evid. Code, § 1204). | Here, the prosecution offered Shyrock’s out-of-court statements to provethe truth of the facts asserted therein — specifically, that Shyrock soughtto have “Dido”killed because he wasa drop-out from the Mexican Mafia. As such, Shyrock’s statements were hearsay (Evid. Code, § 1200, subd. (a)), and were admissible only if they fell within a recognized exception to the hearsay rule (Evid. Code, § 1200, subd. (b)), and were relevant to the charges or issues involved in the case (Evid. Code, § 350). Asthe proponentof Shyrock’s statements, the prosecution had the burden to establish that they came within an exception to the hearsay rule. (People v. Ramos (1997) 15 Cal.4th 1133, 1177; People v. Livaditis (1992) 2 | Cal.4th 759, 779.) | The prosecution urged that Shyrock’s out-of-court statements were admissible under Evidence Code section 1230. However, it was error to admit evidence of those out-of-court statements under section 1230 because 167 they did notsatisfy the requirements of that section or any other exception to the hearsayrule. 1. The Prosecution Failed to Meet its Burden to Show | That Shyrock Was Unavailable “A party who maintains that an out-of-court statement is admissible underthis exception as a declaration against penal interest must show that the declarantis unavailable. ...” (People v. Cudjo (1993) 6 Cal.4th 585, 606, italics omitted.) Under Evidence Code section 240, subdivision (a)(5), a witness is “unavailable” if he or she is “[a]bsent from the hearing and the proponentof his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” (Evid. Code, § 240, subd. (a)(5).) The proponentof the admissibility of the out-of- court statement has the burden of proof on the question of unavailability. (People v. Price (1991) 1 Cal.4th 324, 424; People v. Enriquez (1977) 19 Cal.3d 221, 235.) “As with other evidentiary proponents, the prosecution bears the burden of establishing this predicate.” (Ohio v. Roberts, supra, 448 U.S. at pp. 74-75.) California courts have interpreted the requirementof “reasonable diligence” as requiring the proponentof the evidence to demonstratethatit exercised “due diligence” in attempting to obtain the in personam testimony of the witness. (People v. Cromer (2001) 24 Cal.4th 889, 892; People v. Sanders (1995) 11 Cal.4th 475, 523; People v. Linder (1971) 5 Cal.3d 342, 346-347.) “What constitutes due diligence to secure the presence of a witness depends uponthefacts of the individual case... . Thetotality of efforts of the proponentto achieve [the] presence of the witness must be considered by the court.” (Linder, at pp. 346-347.) The concept “connotes persevering application, untiring efforts in good earnest, [and] efforts of a 168 substantial character.” (People v. Sanders, supra, 11 Cal.4th at pp. 523- 525.) The bare fact that the witness did not appear in court or refused to testify does notsatisfy that burden. Rather, the prosecution must demonstrate that, in good faith, it used all the resourcesat its command to compel the attendanceofthe witness. “[A] witness is not ‘unavailable’ for purposesof the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presenceattrial.” (Barber v. Page (1968) 390 U.S. 719, 724-725; People v. Cromer, supra, 24 Cal.4th at p. 892.) In People v. Sandoval (2001) 87 Cal.App.4th 1425, the court observed that both Barber v. Page, supra, and Ohio v. Roberts, supra, place theburden on the prosecution to employ any reasonable method to obtain the presence and testimony of the witnessattrial. Noting that while the law “does not require the doing of a futile act,” the Sandoval court reasoned that before a prosecution witness could be deemed “unavailable,” the prosecutor was undera constitutional imperative to try any authorized meansof | | compelling the witness’s presence. “[{I]f there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demandtheir effectuation.” (Sandoval, at p. 1438.) Here, the prosecution failed to establish that Shyrock was unavailable anddid not show that it made any efforts whatsoever to procure his attendance and testimony. At the time the prosecutor soughta pretrial ruling on the admissibility of Shyrock’s out-of-court statements, the prosecutor asked the court, for the purposes of that proceeding,to “assume” that Shyrock would be unavailable, and pledgedto obtain a declaration from Shyrock’s attorney indicating that he would “take the Fifth”if called 169 to testify. (2B RT 509.) However, the prosecutor never subsequently mentioned any effort to procure Shyrock’s presence and testimonyattrial, and no documentindicating that Shyrock would assert his right notto testify was ever madea part of the record. Moreover,neither of the reasons that the prosecutor suggested at the pretrial hearing why Shyrock might be unavailable wassufficient, in and of itself, to satisfy the prosecution’s burden to show that he was unavailable to testify at trial. The fact that a witnessis out of state, and beyond the ordinary subpoena powersofthe court in which the case is being tried,is not, in and ofitself, sufficient to satisfy the prosecution’s burden of demonstrating unavailability. (Barber v. Page, supra, 390 U.S.at p. 724.) By the same reasoning, the fact that Shyrock wasin federal custodyat the time of appellant’s trial was insufficient to establish his unavailability. Moreover,it is axiomatic that anyone who seeks the protections of the privilege against self-incrimination mustaffirmatively assert that privilege. (Minnesota v. Murphy (1976) 465 U.S. 420, 429; People v. Miller (1989) 208 Cal.App.3d 1311, 1315; United States. v. Jenkins (9th Cir. 1986) 785 F.2d 1387, 1393.) Here, Shyrock never asserted the privilege, either in . court or in writing. Becausethe prosecutionfailed to establish that Shyrock was unavailable, and did not show that it made anyefforts to procure his atténdanceand testimony, the prerequisites for admission of Shyrock’s statements under Evidence Code section 1230 were notsatisfied and the statements should not have been admitted. 170 2. Shyrock’s Statements Were Not Against His Penal Interest When He Made Them To be admissible under Evidence Code section 1230 in a separate trial, an unjoined accomplice’s “declarations against penalinterest” mustbe (1) relevant to someissue in controversy, (2) against the speaker’s penal interest when made, and (3) sufficiently reliable to withstand scrutiny under the confrontation clause of the Constitution. (Lilly v. Virginia, supra, 527 U.S. at pp. 130-139; People v. Lawley (2002) 27 Cal.4th 102, 152-153; - . People v. Duarte, supra, 24 Cal.4th at pp. 610-611.) Shyrock’s statements met noneofthesecriteria. “The trustworthiness of a statement against penalinterest lies in the assumption that the declaration is so contrary to the declarant’s penal interest that the statement would not be made by a reasonable person unless true. [Citation.]” (People v. Hayes (1999) 21 Cal.4th 1211, 1257, fn. 8.) Moreoever, only those portions of a declarant’s statementthat are specifically disserving to the declarant’s penal interest are admissible under Evidence Code section 1230. (People v. Lawley, supra, 27 Cal.4th at p. 153; People v. Duarte, supra, 24 Cal.4th at p. 612; People v. Leach (1975) 15 Cal.3d 419, 438-442.) Here, the court admitted all of the following statements by Shyrock as declarations against his penalinterest: I don’t know if you haveever heard of this brother Dido. He dropped out a long time ago. He’s in an apartment where I wasliving. The motherfucker wasliving right downstairs but never showedhis face. All kinds of people in the pad, bunch of youngsisters and kids, all kinds of shit. So I’m trying to figure out how to —I need a silencer is whatI need. 171 (18 RT 2281.) Other than the ambiguousstatement“I needa silencer,” noneof these statements was “specifically disserving” to Shyrock’s penal interest. Moreover, the circumstances surrounding Shyrock’s statements do not support the proposition that they were against his penal interest when made. Because the conspiracy had not yet been conceived and the crimes had thus not been committed when Shyrock made the statements, the statements had no tendencyto subject him to criminal prosecution at that _ time. Further, there would have been no reason for Shyrock to believe that statements he made to fellow gang membersin a private hotel room would potentially expose him to criminal prosecution. (See, e.g., United States v. Seabolt (8th Cir. 1992) 958 F.2d 231, 233 [A statement by onecriminal to another criminal . . . about a heistthe first criminal allegedly pulled off is more apt to be jailhouse braggadocio than a statementagainst his criminal interest.”’].) In sum, Shyrock’s statements were not, for the most part, “specifically disserving” to him and, in any event, were not against his . penal interest when made. Consequently, they were not admissible under the hearsay exception for statements against penal interest. 3. Shyrock’s Statements Lacked Sufficient Indicia of Reliability Even when a hearsay statementruns generally against the declarant’s penalinterest, the statement may,in light of the circumstances, lack sufficient indicia of trustworthiness to qualify for admission. (See People v. Shipe (1975) 49 Cal.App.3d 343, 354 [to satisfy the requirements of Evidence Code section 1230, a declaration must be both against the declarant’s penal interest and must “be clothed with indicia of reliability’”’].) To determine whethera particular declaration against penal interest passes 172 section 1230’s required threshold of trustworthiness, a trial court “may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.” (People v. Cudjo, supra, 6 Cal.4th at p. 607, internal citation omitted.) In this context, assessing trustworthiness “requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways humanbeingsactually conduct themselves in the circumstances material under the exception.’” (People v. Frierson (1991) 53 Cal.3d.730, 745, quoting People v. Gordon (1990) 50 Cal.3d 1223, 1251.) As a whole, Shyrock’s statements lacked sufficient indicia of reliability for admission. (Lilly v. Virginia, supra, 527 U'S. at p. 130.) Indeed, other than the reference to “Dido,” the statements containlittle specific information from whichit is possible to reliably concludethat they have anythingto do with thiscaseatall. Moreover, as argued above,the statements were not made under circumstances which suggestthat the statements were sufficiently reliable for admission. D. The Admission of Shyrock’s Out-Of-Court Statements Violated Appellant’s Constitutional Rights to Due Process and a Fair Trial, Confrontation, and Reliable Guilt and Penalty Determinations The introduction of Shyrock’s unreliable hearsay statements violated not only the state hearsay rule but also appellant’s due processrights under the Fifth and Fourteenth Amendments,his right to confrontation under the Sixth and Fourteenth Amendments, and his right to a reliable guilt and penalty determination under the Eighth and Fourteenth Amendments. 173 Appellant does not contend that Shyrock’s statements were testimonial in the manner suggested by the Courtin Crawford.” However, under Ohio v. Roberts, hearsay statements are admissible only if the declarant is unavailable and his statementfalls within a firmly rooted hearsay exception or bears particularized guarantees of trustworthiness. Thetrial court ruled that Shyrock’s hearsay statements were statements against Shyrock’s interest and fell within the hearsay exception of Evidence Codesection 1230. (2B RT 510-517.) However, as applied to circumstancessuch as thoseofthis case, that exception is not “firmly rooted,” and Shyrock’s statements are unreliable under any conceivable standard. In Lilly v. Virginia, supra, 527 U.S. at p. 134 (plur. opn. of Stevens, J.), four justices of the Supreme Court opinedthat ‘accomplices’ | confessionsthat inculpate a criminal defendantare not within a firmly rooted exception to the hearsay rule as that concept has. been defined in our Confrontation Clause jurisprudence.” The samejustices also held that the accomplice’s statements did not contain the particularized guarantees of trustworthiness necessaryto satisfy the concerns of the confrontation clause. (/d. at pp. 137-139.) _ * The Supreme Courtdid not define testimonial, but noted three formulations of “core” testimonial evidence: (1) “ex parte in-court testimonyor its functional equivalent,” such as affidavits, custodial examinations, prior testimony not subject to cross-examination, or “similar pretrial statements that declarants would reasonably expect to be used prosecutorially”; (2) “extrajudicial statements” of the same nature “contained in formalized testimonial materials”; and (3) “statements that were made under circumstances which would lead an objective witness reasonablyto believe that the statement would be available for use at a later trial.” (Crawford v. Washington, supra, 541 U.S.at pp. 51-52.) 174 The plurality explained that statements against penalinterest are offered into evidencein three principal situations: “(1) as voluntary admissions against the declarant; (2) as exculpatory evidence offered by a defendant who claimsthat the declarant committed, or was involved in, the offense; and (3) as evidence offered by the prosecutionto establish the guilt of an alleged accomplice of the declarant.” (Lilly v. Virginia, supra, 527 USS. at p. 127 (plur.opn. of Stevens,J.).) The plurality also observed that “statementsin the first category — voluntary admissions ofthe declarant — are routinely offered into evidence against the makerof the statement and carry a distinguished heritage confirming their admissibility when so used.” (Ibid.) Asthe Lilly plurality explained, if the declarant was a codefendantin a joint trial “even the use of his confession to prove his guilt might have an adverse impacton the rights of his accomplices. When dealing with admissions against penal interest, we have taken great care to separate using admissions against the declarant(the first category above) from using them against other criminal defendants (the third category).” (/bid.) In the years since Bruton was decided, we have reviewed a numberof cases in which one defendant’s confession has been introduced into evidencein a jointtrial pursuantto instructionsthat it could be used against him but not against his codefendant. Despite frequent disagreement over matters such as the adequacyofthetrial judge’s instructions, or the sufficiency of the redaction of ambiguous references to the declarant’s accomplice, we haveconsistently either stated or assumed that the mere fact that one accomplice’s confession qualified as a statement againsthis penalinterest did not justify its use as evidence against anotherperson. [Citations.] (Id. at pp. 127-128.) 175 The third category of statements against interest includes statements like the oneat issue in Lilly: a statement by an accomplice that incriminates the defendant. In Lilly, the plurality explicitly stated: “The practice of admitting statementsin this category underan exception to the hearsay rule — to the extent that such a practice exists in certain jurisdictions — is, unlike the first category or even the second, of quite recent vintage. This category also typically includes statements that, when offered in the absence of the declarant, function similarly to those used in the ancient ex parte affidavit system.” (Lilly v. Virginia, supra, 527 U.S.at pp. 130-131, italics added; see also Leev.Illinois (1986) 476 U.S. 530, 546 [insufficient indicia of reliability “to overcome the weighty presumption against the admission of” a codefendant’s confession inculpating the accused].) If Shyrock’s hearsay statements are not admissible under the “firmly rooted hearsay exception” prong of the Roberts analysis, they must bear particularized guaranteesofreliability to meet the second prong. As previously demonstrated, no such. guarantees exist. Because Shyrock’s out- . of-court statements contained no particularized guarantees of trustworthiness necessary to satisfy the concerns of the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, they should not have been admitted. If nothing else, the trial court should have excluded Shyrock’s hearsay statements under Evidence Code section 352. Where the probative value of the statementis slight, and its admission might confuse the jury, discretionary exclusion undersection 352 is proper. (People v. Chapman (1975) 50 Cal.App.3d 872, 880.) Even assuming, arguendo, that Shyrock’s statementssatisfied the requirements for admissibility, they should have been excluded because they were “‘so ripe with condemningfacts against 176 the defendantthat they are devastating or crucial to his case.” (People v. Rios (1985) 163 Cal.App.3d 852, 867.) At the same time, the statement was highly untrustworthy. Under such circumstances, the court should have exercisedits discretion to exclude the hearsay statements.Its failure to do so denied appellant his right to due process, a fair trial and a reliable guilt and penalty determination. E. Reversal of the Entire Judgment Is Required Under California law, this Court mustreverseif it is reasonably probable that the error contributed to the verdict. (People v. Watson (1956) 46 Cal.2d 818.) Underfederal constitutional law, the State has the burden to prove beyond a reasonable doubtthat the error did not contribute to the verdict obtained. (Chapman v. California, supra, 386 U.S. at p. 24; Delaware v. Van Arsdall (1986) 475 U.S. 673, 680-681; People v. Brown (2003) 31 Cal.4th 518, 538.) “The inquiry, in other words, is not whether,in trial that occurred withoutthe error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually renderedin this trial was surely unattributable to the error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Undereither the state or federal standard, there can be no question that appellant was prejudiced by the admission of Raymond Shyrock’s out- of-court statements. Shyrock’s statements were essential evidence for the prosecution’s theory that the murders of the five victims were carried out by Sangra gang membersat the behest of the Mexican Mafia. Indeed, Shyrock’s statements were the only evidencethat the prosecution presented that linked the Mexican Mafia to these crimes. Yet once Shyrock’s 177 statements were admitted, this evidence served as the bridge to the prosecution’s introduction of a raft of evidence about the Mexican Mafia, including the extensive testimony by Sergeant Valdemar about the Mexican Mafia’s history and practices, that could not have been admitted otherwise. Further, the admission of evidence of Shyrock’s out-of-court statements, without providing appellant with an opportunity to confront Shyrock and cross-examine him,violated the Sixth and Fourteenth Amendments of the United States Constitution. The right to confront and cross-examine witnesses is more than a desirable rule of trial procedure — it is ‘‘an essential and fundamental requirementfor the kind of fair trial which is this country’s constitutional goal.” (Chambers v. Mississippi (1973) 410 U.S. 284, 295.) The constitutional error was not harmless beyond a reasonable doubt because it supplied highly prejudicial evidence underlying appellant’s conviction and profoundly underminedthe basic fairness of appellant’s trial. Thus appellant’s conviction and death sentence must be reversed. // // 178 6 THE TRIAL COURT ERRED BY REFUSING TO INSTRUCT THE JURY THAT WITNESSNO. 16 WAS AN ACCOMPLICEAS A MATTER OF LAW A. Introduction The testimony of Witness No. 16 was the cornerstone of the prosecution’s case against appellant. Witness No. 16 was.the only witness whoimplicated appellant as one of the Sangra gang members whodroveto the victims’ residence in E] Monte on April 22, 1995, and the only witness. whospecifically implicated appellant as the shooter of Dido Moreno and Tito Aguirre. While Elizabeth Torres and Witness No. 13 identified appellant as one of the men who were at the Torres houseearlier in the evening on April 22, 1995, both witnesses left the house before Anthony Torres and his friends left, and therefore their testimony cannotestablish that appellant left together with the other Sangra membersand wentto El Monte, muchless that he played any role in the crimes. Witness No. 16’s testimony wasthusessential to the prosecution’s case. | Witness No. 16’s testimony established that he was an accomplice to the offenses.* Witness No. 16 repeatedly acknowledged duringhis testimony that when he and the other Sangra gang membersleft Torres’s house to go to El Monte, he believed that the men were going there for the purpose of committing assault or murder. Asa result, Witness No. 16 had reason to minimize his own involvementin the crimes and to shift blame to appellant. 8 While appellant sets forth Witness No. 16’s testimonyfor the purpose of establishing that Witness No. 16 was an accomplice as a matter of law, he does not concede that Witness No. 16’s testimony,at least insofar as it implicated appellant in the offenses, wastruthful. 179 Because Witness No. 16’s testimony established that he was “liable to prosecutionfor the identical offense charged against the defendant,”the | defense requested thatthetrial court instruct the jury that Witness No. 16 was an accomplice as a matter of law, andthat it was required to acquit appellant unless there was other evidence, independentof all accomplice testimony, connecting appellant with the commission of the offense. (§ 1111.) Thetrial court refused to do so. Thetrial court’s failure to instruct the jury that Witness No. 16 was an accomplice as a matter of law allowedthe jury to return convictions and death sentences against appellant based upon the unreliable and uncorroborated testimony of Witness No. 16 alone. B. Proceedings Below 1. Witness No. 16’s Testimony: Asdetailed in the Statement of Facts, supra, and incorporated by reference herein, Witness No. 16 testified that he drove Jose “Pepe” Ortiz — the Sangra gang member who appearedto be “in charge”of carrying out the crimes in El Monte — to a location about a block away from wherethe murders occurred, where Ortiz could monitor the commission of the crimes and serve as a lookout. - According to Witness No. 16’s testimony, on the afternoon of April 22, 1995, Jimmy Palmaasked him for a ride to Anthony Torres’s house because “the brothers wanted him” and “they had to take care of something.” (20 RT 2681, 2683.) Witness No. 16 understood Palmato be referring to the Mexican Mafia whenhesaid “the brothers.” (20 RT 2683.) A few hourslater, Witness No. 16 drove Palma to Torres’s house. (20 RT 2681; 21 RT 2763-2765.) Witness No. 16 went into the house with Palma, and went to Torres’s room. (20 RT 2684.) A numberof other Sangra 180 members werealready gathered in Torres’s room,including Torres, “Pepe,” “Tricky,” “Primo,” and “Creepy.” (20 RT 2684.) Witness No. 16 saw a shotgun by the foot of the bed in Torres’s room. (20 RT 2685.) According to Witness No.16, “Pepe” Ortiz seemed to be in charge of what was going to take place that evening. (21 RT 2767, 2801.) Ortiz announcedto the group that they had to “go to El Monte to take care of something.” (20 RT 2687.) Witness No. 16 understoodthis to mean that they neededto go to El Monteto kill someone: Q. And what did you take it to mean when Pepein front of everybody in Mr. Torres’s room said, “We haveto go take care of something’’? A. That somebody mightget killed. Q. Mightgetkilled or would get killed? A. Would get killed. (20 RT 2687.) The menwereat Torres’s house for 40 minutes before theyleft for El Monte. (20 RT 2685.) When Witness No. 16 left Torres’s house, he believed that the men were going to E] Monte to commit murder: Q. Sir, when you left at some point you left and wentto El Monte;is that correct? A. That’s correct. Q. I need to know yourstate of mind. Explain to the ladies and gentlemenof the jurywhat your state of mind was when you left Scar’s house on Third Street and went to E] Monte. Did you believe murder wasgoingto take place? A. Yes. (20 RT 2694.) Witness No. 16 drove Ortiz and Witness No. 12 (“Creepy”) to El Montein his Thunderbird, while Logan (“Tricky”) led the wayin his 181 Maxima. (20 RT 2697-2698; 21 RT 2775, 2801.) En route, Witness No. 16 followed the Maximato gasstation. (20 RT 2700; 21 RT 2779.) Both cars stopped and someonegotout of the Maximato pump gas. (20 RT 2700.) Whenthe twocars left the gas station, Witness No. 16 followed the Maximato El Monte. (20 RT 2701-2703.) When the Maximapulled into a driveway on Maxson Road, Witness No. 16 continued driving the Thunderbird a few blocks farther downthestreet, where Witness No. 16 turned off the car and the headlights. (20 RT 2703.) Ortiz got out of the car and wentto the corner of the street, facing towards Maxson Road. (20 RT 2705.) Witness No. 16 observed Ortiz “looking up and downthestreet.” (20 RT 2705.) When Ortiz returned to the vehicle, he said the police were . behind them andsaid “‘Let’s get out of here.” (20 RT 2706.) Witness No. 16 then drove Ortiz and Witness No. LD to an apartment in West Covina, and eventually back to Torres’s house in Alhambra where they regrouped with the other Sangra gang members. (20 RT 2707-2709, 2785-2787.) On cross-examination, Witness No. 16was questioned further by counsel for co-defendant Palma about what he believed was going to take place when he andthe other Sangra membersleft Torres’s house. Witness No.16 again reaffirmed several times that he believed that they were going to E] Monte to commit murder: Q. Whenyouleft the house, Mr. Torres’s house, on the evening of the 22nd of April, it was your belief, your mental state, was that there was going to be a murderin E] Monte,correct? A. Correct. Q. Or that there was going to be murders. Do you remember how many murders there were going to be? A. No, I don’t. 182 Q. Do you believe that when you wentthere that there was going to be a murder committed, right? A. That there was goingto be a possibility ofthat. (21 RT 2776-2777.) Q. Now,you’vetestified here in court on Thursdaythat it was your impression or yourstate of mind was that you were going to go to El Monte and that somebody wasgoingto get killed that night? A. That’s correct. (21 RT 2780-2781.) In responseto this testimony, counsel for co-defendant Palma - attempted to impeach Witness No. 16 with prior statements he madeto the prosecutor and to Officers Davis and Laurie that he “had no idea” what Ortiz meant whenhesaid that “they had to take care of something in El Monte.” (21 RT 2781.) Witness No. 16 acknowledged that he had nottold Davis and Laurie that he knew there was going to be a murder, but he maintained that what he meant wasthat he “wasn’t sure who or how many people would be killed.” (21 RT 2782.) The cross-examination proceeded as follows: | Q. So that when you were interviewed bythe police at that time you were lying, correct? A. Well, we had to take care of something. Whatthat was,I "wasn’t sure who or how many people would have beenkilled. Q. Well, you didn’t say anything during that interview about a killing, correct? A. Correct. Q. Now,you were — youtestified here last week that your idea was or yourstate of mind wasis[sic] that there was going to be a killing, correct? A. Correct. 183 Q. Wereyoutelling us the truth then? A. Yes. Q. Were youtelling the truth back when you were interviewed by the police? A. Yes. (21 RT 2782.) Later in his cross-examination, counsel for co-defendant Palma again attempted to impeach Witness No.16 with prior statements he made during an interview with the prosecutor and Officers Davis and Laurie. (21 RT 2797.) During that interview, Witness No. 16 denied that he thought the Sangra gang members were goingto kill people when they wentto El Monte;instead, he said he thought they were going to “box, get some money. I don’t know what they were going to do.” (21 RT 2797.) When questioned aboutthese prior statements by counsel for co-defendant Palma, WitnessNo. 16 acknowledged making the statements during the interview and maintained that he wastelling the truth at the time. (21 RT 2797.) Counsel for appellant further cross-examined Witness No. 16 about his prior statements about what he thought would happen when they wentto El Monte. (21 RT 2802-2806.) The cross-examination proceeded as follows: Q. And that first time when Mr. Uhalley was questioning you just a momentago he asked you, Well, didn’t youtell the police officers that you didn’t know what they were going to do? You said they were going to box or get some money from somepeople in El Monte;is that correct? A. I said I wasn’t sure what they were going to do,if they were going to do that or kill somebody. Q. You indicated you told the officers the first time you talked to them that they were going to kill somebody? 184 A. I didn’t say that exactly. Q. But you did say as recorded in the same page that wasreferred to by Mr. Uhalley in the discovery that you stated you were going to box and get some moneyand you didn’t go any further than that, if you recall? . A. Yes. Q. Can you tell us your thought process where you went from getting moneyto killing[?] | A. I said killing, too. I said anything could have happenedthat night. (21 RT 2802-2804.) 2. Defense Request for Instruction That Witness No. 16 Was an Accomplice as a Matterof Law . In a motion joined by counselfor appellant,counsel for co- defendant Palmaasked thetrial court to instruct the jury with CALJIC No. 3.16.7 (25 RT 3246.) The defendants argued that Witness No. 16 was an accomplice as a matter of law because he wasan aider and abettor and/or a ‘co-conspirator to the murders, and thusliable for the same offenses charged : ® At the beginning of the jury instruction conference, appellant’s counselindicated that counsel for co-defendant Palma would argue defense objections for both defendants. (25 RT 3231.) Appellant’s counsel subsequently joined counsel for co-defendant Palma’s arguments. (25 RT 3257.) . ” CALJIC No. 3.16 (Witness Accomplice as a Matter of Law) would haveinstructed the jury as follows: . If the crime of was committed by anyone,the witness was an accomplice as a matter of law andhis testimonyis subject to the rule requiring corroboration. (CALJIC No. 3.16.) 185 against the defendantsat trial, based on evidence establishing that: (1) he was presentat Torres’s house, together with other Sangra gang members, whenOrtiz said they “hadto take care of something” in El Monte;(2)at the time he left Torres’s house with the other Sangra gang members,he believed they were going to E] Monteto kill someone;and (3) he drove the car which transported Jose “Pepe” Ortiz — whom he described asthe leader of the conspiracy — to El Monte for the purpose of being a lookout whenthe © murders were committed. (25 RT 3247.) In response, the prosecutor argued that Witness No. 16 was not an accomplice as a matter of law, and that it was within the jury’s discretion to find that Witness No. 16 was an accomplice or not. (25 RT 3247.) The prosecutor argued that he had asked the grand jury to indict Witness No. 16 but the grand jury declined to charge him in the case, and claimedhe had no evidence implicating Witness No. 16 other than his own testimony and statements.”! (25 RT 3247, 3254.) The prosecutor argued that even if Witness No. 16 knew people were going to be killed, he still had not done anything “morally” that he had “to answer for,” and that if Witness No. 16 was one of the defendants ontrial the court would have to grant a motion for judgment of acquittal on the basis of the evidence presentedattrial. (25 RT 3249.) The prosecutor argued that the only thing Witness No. 16 did "In fact, the prosecution possessed other evidence of Witness No. 16’s involvement. In his testimony during the grand jury proceedings, Sergeant John Laurie of the Los Angeles County Sheriffs Department testified that Elizabeth Torres had identified Witness No. 16 as one of the three individuals who wereat her house on the evening of April 22, 1995. (III CT 620, 624.) In addition, Laurie testified that Anthony Torrestold him that Witness No. 16, Pepe Ortiz, and Witness No. 12 were parked down the street as “backup.” (III CT 657.) 186 wasdrive the car, and that it could not be inferred from that act alone that Witness No. 16 knew someonewas going to be killed. (25 RT 3249.) The prosecutor also argued that when defense counsel cross- examined Witness No. 16 abouthis statements, the defense elicited that Witness No. 16 said he thought they were going to El Monte tofight or box, and that he did not know that people were going to be killed until afterwards. (25 RT 3250.) The prosecutor argued that while the jury would | be within its discretion to find that Witness No. 16 was an accomplice, the defense had not metits burden to show that he was an accomplice as a matter of law. (25 RT 3250.) Counsel for co-defendant Palma,joined by counsel for appellant (25 RT 3257), responded that the grand jury proceedings were irrelevant, and that the evidencepresentedat trial established that Witness No. 16 was an accomplice as a matter of law. (25 RT 3247, 3256.) The defendants argued that the only reason Witness No. 16 was not ontrial was because he was granted immunity by the prosecution. (25 RT 3251.) With respect to Witness No. 16’s state of mind, the defendants argued that Witness No. 16 repeatedly testified that he knew a murder was going to be committed when he drove Ortiz, the apparent leader of the group, to El Monte. (25 RT 3251.) In conclusion, counsel for co-defendant Palma summarizedthetrial evidence supporting the theory that Witness No. 16 was an accomplice: Clearly, I think there is sufficient evidence. One,he wasthere when the conspiracy was going on, he participated in the discussions, he knew whenheleft there that a murder was goingto take place, he took the leader of the conspiracy in his car, provided the transportation, the leader wasthere, as [the prosecutor] indicated, to make sure that the carpool went and the murders took place and he provided transportation for that leader to see, to ensure that the actions had taken place. 187 That should be sufficient for the court to find him an accomplice. (25 RT 3257.) _ Thetrial court agreed with the defendants that the determination of whether Witness No. 16 was an accomplice as a matter of law was based on the evidenceattrial, and that the grand jury’s decision not to indict him was irrelevant to that determination. (25 RT 3260.) However, the trial court agreed with the prosecutor that there was not proof beyond a reasonable doubt that Witness No. 16 was an accomplice. (25 RT 3260.) Thetrial court stated that counsel for co-defendant Palma undermined Witness No. 16’s testimony that he knew murders were going tobe committed when they went to El] Monte. (25 RT 3260.) Thetrial court agreed with the prosecutor that mere presenceat the sceneor prior knowledgeofthe crime wasnot sufficient. (25 RT 3261.) Thetrial court stated that Witness No. 16 testified that he did not know why he wentalong,andthatit wasthetrial court’s impression that Witness No. 16 was“just a tagalong.” (25 RT 3261.) Asa result, the trial court denied the defense request for an instruction that Witness No. 16 was an accomplice as a matter of law. (25 RT 3261.) At the close of the guilt phase, the jury was instructed as to the law regarding accomplice testimony as follows: An accomplice is a person whowasoris subject to prosecution for the identical offense charged in Counts 2 through 6 against the defendants on trial by reason of aiding and abetting or being a memberof a criminal conspiracy. (CALJIC No. 3.10; VI CT 1714; 27 RT 3353.) 188 You must in this case determine whether Witness No. 16 and Witness No. 14 are accomplices as I have defined that term. The defendants have the burden of proving by a preponderance of the evidence that these witnesses are accomplices in the crimes charged against these defendants. (CALJIC No. 3.19; VI CT 1720; 27 RT 3356.) In regard to the meaning of “aiding and abetting,” the jury was instructed using thelanguage of CALJIC Nos. 3.00 and 3.01.” Finally, the jury wasinstructed on the use that may be madeofthe ” The jury wasinstructed as follows: The persons concerned in the commission or attempted commission of a crime whoare regardedbylaw asprincipals in the crime thus committed and equally guilty thereof include: 1. Those whodirectly and actively commit or attempt to commit the act constituting the crime, or 2. Those whoaid and abet the commission or attempted commission of the crime. (CALJIC No. 3.00; VI CT 1712; 27 RT 3351-3352.) A person aids and abets the commission of a crime when he or she, (1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, encouraging,or facilitating the commission of the crime, by act or advice aids, promotes, encouragesor instigates the commission of the crime. A person whoaids and abets the commission of a crime need not be personally present at the scene of the crime. Merepresenceat the scene of a crime which doesnotitself assist the commission of the crime does not amountto aiding and © abetting. Mere knowledgethat a crime is being committed and the failure to prevent it does not amountto aiding and abetting. (CALJIC No. 3.01; VI CT 1713; 27 RT 3352-3353.) 189 testimony of a single witness. Using CALJIC No.2.27 (1991 Rev.), the jury wasinstructed: You should give the uncorroborated testimony of a single witness whatever weight you think it deserves. However,testimony by one witness which you believe concerning any fact whose testimony aboutthat fact does not require corroboration is sufficient for the proof of thatfact. You should carefully review all the evidence upon which the proof of such fact depends. (VI CT 1777; 29 RT 3690-3691.) 3. The Prosecutor’s Closing Argument In his closing argumentto the jury at the guilt phase, the prosecutor argued that Witness No. 16 was not an accomplice because, if Witness No. 16 were ontrial, the jury would not have had sufficient evidence upon which to convict him, because, apart from Witness No. 16’s testimony, there was not sufficient evidence implicating him in the crimes. The argument wentas follows: _ Thedefense will tell you that Witness No. 16 is an accomplice. They will tell you that he was involved in these crimes. | I want to ask you a question, ladies and gentlemen. And I am notsaying that Witness No. 16 does not haveto answerto a higher authority for what he did, knew aboutthat night. Iam not saying that what Witness No. 16 did is morally right. But I ask you this, ladies and gentlemen{:] If Witness No. 16 washere as a defendant, would you convict him? Because without giving immunity, we wouldn’t have had his testimony so we wouldn’t know whatto say. Do you know what evidence we had,ladies and gentlemen? The fact that Elizabeth Torres on Maythe 16th picked him out as having beenat her son’s housebutshe did not pick him out before you orat the grand jury. We have no other evidence of his involvement. 190 Would you have convicted him? I am not asking you if you like him. I am asking you as fair members of our community would you have convicted him for these murders? There’s no phone evidencethatties him in. Think aboutit. I think you may haveto be honest with yourselves and may well say, “I wouldn’t have convicted him.” (27 RT 3450-3451.) The prosecutor continued by arguing that even if the jury found that there were “many things that [Witness No. 16] did to help,” it couldstill find that that was not “enough . . . to have convicted that man offive counts of murder”: But let me ask you something. Let’s assumethat Witness No. 16 knew that there were going to be murdersthat night. What did he do to aid and abet? Rememberthe judge told you that mere presence alone is not enough and mere knowledge that a crime is going to be committed without doing something to help it is not enough. Whatdid Witness No. 16 do to help? And you may find manythings that he reasonably did to help but you also may decide there would not have been enough for me to have convicted that man of five counts of murder. (27 RT 3452.) Finally, the prosecutor argued that in order for the defenseto satisfy its burden to show that Witness No. 16 was an accomplice, the defense had to prove to the jury that the crime could not have happened withouthis involvement: Again, I am not saying that Witness No. 16 was morally correct in what he did that night or that he does not have to answerto a higher being for what his involvement was. But what did he do that assisted that crime? If Witness: No. 16 did not drive [Pepe Ortiz and ““Creepy”’] there [. . . ], 191 do you think this crime would not have happened? Think aboutit. All I ask you to do, ladies and gentlemen,is use your good commonsenseand evaluate the testimony. Evaluate what Witness No. 16 had to say andtake[--] listen carefully to what the defense tells you because, to be honest with you,I am very interested in possible things that one could argue that Witness No. 16 assisted in the commissionof this crime. If he didn’t drive him, somebody else would have. And I ask you, when you go backthere, the defense has the burden of proving both he and Witness No. 14 were - accomplices or accessories. The burden is on them. I don’t have to prove a thing on that one. And when youclearly review the evidence, you'll find they haven’t mettheir burden. (27 RT 3457.) - C. Applicable Legal Principles “A conviction cannot be had uponthe testimony of an accomplice unless it be corroborated by such other evidenceas shall tend to connectthe defendant with the commission of the offense; and the corroboration is not sufficientif it merely shows the commission of the offense or the circumstances thereof... .” (§ 1111; see also CALJIC No. 3.11; People v. Zapien (1993) 4 Cal.4th 929, 982.) Penal Code section 1111 defines an accomplice as a person “whois liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111; People v. Brown, supra, 31 Cal.4th at p. 555.) This definition encompassesall principals to the crime (People v. Tewksbury (1976) 15 Cal.3d 953, 960), including aiders and abettors and coconspirators. (People v. Stankewitz (1990) 51 Cal.3d 72, 90; People v. Gordon (1973) 10 Cal.3d 460, 468.) 192 To qualify as an aider and abettor, a person must act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing the offense or of encouragingorfacilitating the commission ofthe offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.) Thus, to be guilty of murder as an aider and abettor, a person mustgive aid or encouragementwith knowledgeof the direct perpetrator’s intentto kill and with the purposeoffacilitating the direct perpetrator’s accomplishment of the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 624.) Furthermore, an aider and abettor is not only guilty of the offense he intendsto assist, but also of any offense that is a natural, foreseeable, and probable consequenceof that offense. (People v. Prettyman (1996) 14 Cal.4th 248, 260; People v. Durham (1969) 70 Cal.2d 171, 181.) Under the natural and probable consequencesdoctrine,it is not necessary to establish theaider and abettor’s intentto kill for a conviction of murder or attempted murder. Instead, under that doctrine it is necessary to prove “that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouragedorinstigated the commission of the target crime. ... [T]he trier of fact mustalso find that (4) the defendant’s confederate committed an offense other than the target crime; and (5) the offense committed by the confederate wasa natural and probable consequenceofthe target crime that the defendant aided and abetted.” (Prettyman,at p. 262.) | “Thus, for example, if a person aids and abets only an intended assault, but a murderresults, that person may be guilty of murder, even if 193 unintended, if it is a natural and probable consequence of the intended assault. [Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) Wherethere is no dispute as to either the facts or the inferences to be drawn therefrom that the witness was an accomplice, the witness is an accomplice as a matter of law and the jury mustbe instructed that the witness’s testimony must be viewed with distrust and corroborated by other evidence that tends to connect the defendant with the commission of the offense. (People v. Zapien, supra, 4 Cal.4th at p. 982; People v. Fauber (1992) 2 Cal.4th 792, 833-834; People v. Robinson (1964) 61 Cal.2d 373, 394; People v. Valerio (1970) 13 Cal.App.3d 912, 924.) The burden is on the defendant to prove by a preponderanceof the evidence that a witness is an accomplice. (People v. Fauber, supra, 2 Cal.4th at p. 834; People v. Tewksbury, supra, 15 Cal.3d at p. 963.) Distrust of accomplice testimony is an important componentof a defendant’s right to a fair trial and to a reliable jury verdict. (People v. Guiuan (1998) 18 Cal.4th 558, 564-569.) The dueprocessroots for safeguards in the use of accomplice testimony are deep and well documented. (Jd. at pp. 565-567.) As Justice Kennard explained in her concurring opinion in Guiuan: A skeptical approach to accomplice testimonyis a mark of the fair administration of justice. From Crown political prosecutions, and before, to recent prison camp inquisitions, a long history of humanfrailty and governmental overreaching for conviction justifies distrust in accomplice testimony. . (Guiuan, at p. 570 (conc. opn. of Kennard, J.), quoting Phelps v. United States (5th Cir. 1958) 252 F.2d 49, 52.) 194 D. The Record Demonstrates That Witness No. 16 Was an Accomplice As a Matter of Law The record in this case demonstrates that Witness No. 16 was an accomplice as a matter of law because, according to his testimony, he acted with knowledge of the criminal purposeofthe alleged perpetrators and with the intent or purpose of encouraging or facilitating the commission of the offense. (People v. Beeman, supra, 35 Cal.3d at p. 560.) Witness No.16 testified to sufficient facts that collectively establishedhis role as a principal to murder as an aider and abettor. Thus, Witness No. 16 testified that earlier that day Palma told him that “the brothers” — which Witness No. 16 understood to be a reference to the Mexican Mafia — wanted Palma to do something, and that Palma needed Witness No. 16 to drive him to Torres’s house after Palmareceived a page. (20 RT 2681, 2683.) When Palmareceived the page, Witness No. 16 dutifully drove Palma to Torres’s house as requested. (20 RT 2681; 21 RT 2763-2765.) Witness No. 16 went into Torres’s house with Palma, where he observed as manyas six other Sangra gang members,as well as a shotgunat the foot of Torres’s bed. (20 RT 2684-2685.) Witness No. 16 | heard Ortiz tell the group that they had to “go to El Monteto take care of something,” which Witness No. 16 understood to mean that somebody “would get killed.” (20 RT 2687.) . As Witness No. 16 repeatedly affirmed in his testimony, he believed that the Sangra gang members were going to commit murder whentheyleft Torres’s house to go to El Monte. (20 RT 2687, 2694; 21 RT 2776, 2781, 2782, 2784.) At the sametimethat he was aware of the group’s criminal purpose, he facilitated the crimes by willfully agreeing to play the role that wasassigned to him, by driving the back-up car that transported two gang 195 members, including “Pepe” Ortiz — the person who,according to Witness No. 16’s testimony, “seemed to be in charge” (21 RT 2767) — to a location a short distance away from the residence on Maxson Road where Ortiz could monitor and supervise the carrying out of the offenses, and serve as a lookout. Then,after the offenses had been committed, Witness No. 16 drove Ortiz and Witness Number12 back to Torres’s house, where they reunited with the others involvedin the offenses. By driving the “backup car” to the crime scene with knowledge of the criminal purpose of the Sangra gang members, Witness No. 16 was an aider and abettor to the murders. “‘By intentionally acting to further the criminal actions of another, the [accomplice] voluntarily identifies himself with the principal party.’ [Citation]}.” (People v. Luparello (1986) 187 Cal.App.3d 410, 439.) In order for Witness No. 16 to be an accomplice as a matter of law, it need not be proven that he actually had the specific intent to commit murder. “‘[T]he intent requirementis satisfied if [the accomplice], prior to its commission, realized that [murder] was being planned andthat[Jhe wasfacilitating its commission.” (Peoplev. Tewksbury, supra, 15 Cal.3d at p. 960.) Moreover, “an act which has the effect of giving aid and encouragement, and which is done with knowledge of the criminal purpose of the person aided, may indicate that the actor intendedto assist in fulfillment of the known criminal purpose.” (People v. | Beeman, supra, 35 Cal.3d at pp. 558-559.) Further, under the natural and probable consequencesdoctrine,it is not necessary that Witness No. 16 intended or personally foresaw that the murders might be committed. It is sufficient that, objectively, it was reasonably foreseeable from the crimethat he did intendto assist that the murders occurred. (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [the aider 196 and abetter must have “knowledge that an act which is criminal was intended, and . . . action taken with the intent that the act be encouraged or facilitated’’].) Thus, even if Witness No. 16 only intendedto facilitate a robbery or an assault in E] Monte — and did notintend or foresee that the murders would be committed — he wouldstill be liable for the offenses actually committed. (See People v. Montano (1979) 96 Cal.App.3d 221, 227 [{“The frequency with which such gangattacks result in homicide fully justified the trial court in finding that homicide was a ‘reasonable and natural consequence’ to be expected in any such attack’’].) The facts of this case are similar to People v. Solis (1993) 20 Cal.App.4th 264. In Solis, the defendant, a gang member, went driving around the areawhere an earlier confrontation with rival gang members had occurred. (Jd. at p. 268.) As the defendant and his fellow gang members drove past some youths, the defendant’s accomplice, whom the defendant knew was armed, leaned out the window andfired three shots, killing one person. (Ibid.) The Court of Appeal found that the defendant was properly convicted of second degree murderbased on a theory of aiding and abetting, where he admitted knowingthat the shooter had a gun, even thoughthe defendant denied knowing or expecting that the shooter would use it for any purpose other than to shoot in the air to scare the opposing gang. (/d. at pp. 269-275.) As the Court of Appeal explained: Whetherthere is a nexus of foreseeability between the predicate and the perpetrated offenses depends not on crime definitions but on the specific facts of each offense. In this case, for instance, the jury was obliged to consider whether a plan to drive bythe Linda Vista youths with a passenger equipped with a firearm, who could be expected to either brandish orfire the gun intothe air, should objectively have raised in the mind ofthe aider the expectation of a possible homicide (including in this consideration the background of 197 animosity that existed between the two groups). It makes no difference to this deliberation whether the drive-by and use of the gun be deemed misdemeanorbrandishing, assault with a deadly weapon,or any otherpossible definitional crime. So long as it is understood that the activity is in fact im some way criminal (which is not disputed) there is no need to focus on the legal definition of the elements of the predicate crime. (Id. at pp. 273-274,italics in original.) Although Witness No.16 said in an earlier statementto investigators that he also thought it was possible that the Sangra gang members were only going to assault or rob someonein El Monte, underthe natural and probable consequencesdoctrine it makes no difference what “predicate crime” Witness No. 16 thought they were going to commit “[s]o long asitis understoodthat the activity is in fact in some way criminal.” (Peoplev. Solis, supra, 20 Cal.App.4th at p. 274.) Here, a “nexus of foreseeability between the predicate and the perpetrated offenses” exists because the Sangra gang’s plan to drive to El Monte to commit assault, robbery, and/or murder “should objectively have raised in the mind of’ Witness No. 16 “‘the expectation of a possible homicide.” ([bid.) Indeed, as Witness No. 16 acknowledged repeatedly in his testimony, that was precisely whathe believed was going to happen. (20 RT 2687, 2694; 21 RT 2776, 2781, 2782, 2784.) Thus, even if Witness No. 16 only believed that the Sangra members were going to commit robbery or assault in El Monte, he wasstill an aider and abettor to the murders because those crimes werethe “natural, foreseeable, and probable consequences”of the offenses that Witness No. 16 anticipated. Because there wasnodispute as to either these facts or the inferences to be drawn therefrom, Witness No. 16 was an accomplice as a matter of law. (People v. Zapien, supra, 4 Cal.4th at p. 982; People v. 198 Fauber, supra, 2 Cal.4th at pp. 833-834; People v. Robinson, supra, 61 Cal.2d at p. 394; People v. Valerio, supra, 13 Cal.App.3d at p. 924.) Finally, Witness No. 16’s self-serving claim that he was“told to” go along to El] Monte, andthat (in the prosecutor’s words) he “felt compelled” to go (21 RT 2775), did not relieve him of criminal liability for the multiple murders. Not even the threat of future dangerof loss oflife is a defense (People v. Lewis (1963) 222 Cal.App.2d 136, 141; People v. Otis (1959) 174 Cal.App.2d 119, 125-126), and the defense of coercionis not available | at all when the charged offense is punishable by death (People v. Petro (1936) 13 Cal.App.2d 245, 248). E. The Trial Court’s Error In Refusing to Find That Witness No. 16 Was an Accomplice As a Matter of Law and in Failing to So Instruct the Jury Was Prejudicial The People must prove the error harmless beyond a reasonable doubt. (See Chapman vy. California (1967) 386 US. 18, 24; Peoplev. Ashmus (1991) 54 Cal.3d 932, 965.) Thefailure to instruct that Witness No. 16 was an accomplice as a matter of law is only harmlessif there is sufficient corroborating evidence in the record. (People v. Hayes, supra, 21 Cal.4th at p. 1271; People v. Miranda (1987) 44 Cal.3d 57, 100.) The People cannot meet that burden here because there wasinsufficient evidence corroborating Witness No. 16’s testimonyimplicating appellant in the charged offenses. This Court has observed thata trial court’s error in failing to instruct the jury with CALJIC No.3.16 that a witness was an accomplice as matter of law is harmlessif there is adequate corroboration of the witness. (People v. Brown, supra, 31 Cal.4th at pp. 556, 557.) The corroborating evidence “may be slight, may be entirely circumstantial, and need notbe sufficient to establish every elementof the charged offense.” (/d. at p. 556,citations 199 omitted.) Corroborating evidence will be sufficient “if it tends to connect the defendant with the crime in such a wayasto satisfy the jury that the accompliceis telling the truth.” (Zbid.) 1. The Testimony of an Accomplice Must Be Corroborated To prevent convictions from being based solely upon evidence from the inherently untrustworthy source of an accomplice, the Legislature enacted section 1111 to require corroboration whenever an accomplice provided the evidence upon which a conviction is sought. (People v. Belton (1979) 23 Cal.3d 516, 525.) It places upon the prosecution the burden of producing independent evidenceto corroborate the testimony of an accomplice. (People v. Cooks (1983) 141 Cal.App.3d 224, 258.) To corroborate the testimony of an accomplice, the prosecution must produce independent evidence that, without aid or assistance from the testimony of the accomplice, tends to connect the defendantwith the crime charged. (People v. Bunyard (1988) 45 Cal.3d 1189, 1206.) In this regard, the evidence must connect the defendant with the crime, not simply with its perpetrators. (People v. Robinson, supra, 61 Cal.2d at p. 400; People v. Falconer (1988) 201 Cal.App.3d 1540, 1543; In re Ricky B. (1978) 82 Cal.App.3d 106, 111.) If the corroboration merely raises a suspicion of guilt, however grave,it is insufficient. (People v. Szeto (1981) 29 Cal.3d 20, 27; Robinson, at p. 399; 3 Witkin, Cal. Evidence (4th ed. 2000), § 103, p. 140.) Likewise, it is insufficient to show mere suspicious circumstances. (People v. Robbins (1915) 171 Cal. 466, 476.) The requirement that the corroborating evidencetie the defendantto some elementof the crime is both explicit and purposeful. “We determined that the Legislature’s purpose in enacting section 1111 was to prevent 200 convictions based solely on evidence provided by such inherently untrustworthy sources as accomplices. [Citations.]” (People v. Andrews (1989) 49 Cal.3d 200, 214, overruled on other grounds in People v. Trevino (2001) 26 Cal.4th 237.) The tendency of accomplices to falsely implicate others in order to deflect their own responsibility, curry favor with prosecutors, or fulfill contingent plea agreements is a matter of both past and present concern. (See, e.g., Scheck, Closing Remarks: Symposium (2002) 23 Cardozo L.Rev. 899, 900-901.) The rationale for treating accomplice testimony with special care is that the accomplice is exposed to criminalliability for the offense about which hetestifies. The underlying concern is that he might be motivated to shade his testimonyin order to gain leniency from the prosecution or to minimize his own culpability for the offense. (People v. Tobias (2001) 25 Cal.4th 327, 331; People v. Guiuan, supra, 18 Cal.4th at pp. 567-568; People v. Gordon, supra, 10 Cal.3datp. 469; People vy. Wallin (1948) 32 Cal.2d 803, 808.) An accomplice cannot corroborate himself (People v. Andrews, supra, 49 Cal.3d at p. 214), nor can the testimony of one accomplice corroborate another accomplice (People v. Clapp (1944) 24 Cal.2d 835, 837; People v. Dailey (1960) 179 Cal.App.2d 482, 486; CALJIC No. 3.13.) To determineif sufficient corroboration exists, the accomplice’s testimony must be eliminated from the case. The evidenceof other witnesses must then be examinedto determineifthere is any inculpatory _ evidence tending to connect appellant with the offense. (People v. Shaw _ (1941) 17 Cal.2d 778, 803-804; People v. Falconer, supra, 201,Cal.App.3d at p. 1543.) 201 2. Apart from Witness No. 16’s Testimony,the Evidence That Appellant Participated in the Homicides WasInsufficient As a Matter of Law In the instant case, once Witness No. 16’s testimonyis eliminated from the case, there is insufficient evidence that appellantparticipated in the homicidesor that he aided or abetted their commission. Because there wasinsufficient corroboration of Witness No. 16’s testimony,the trial court’s error in failing to instruct that Witness No. 16 was an accomplice as a matter of law, and in refusing appellant’s requestforthat instruction, cannot be deemed harmless. Accordingly, appellant’s convictions and death sentences mustbe reversed. | Noneofthe witnesses whotestified about the events at Maxson Roadonthe afternoon of the murders identified appellant, described seeing someone who resembled him, or implicated himin the crimesin any way. Witness No. 15 — the brother of Anthony and Maria Moreno testified that Luis Maciel and two younger men cameto the victims’ house on Maxson Road onthe afternoon of April 22, 1995, and Maciel gave Anthony Moreno a free sample of heroin. (15 RT 1997, 2008.) However, Witness No. 15 said that one of the younger menhadthe letters “EMF” — the acronym of the El Monte Floresstreet gang, a rival of the Sangra gang — tattooed onhis arm. (15 RT 2027-2028.) Witness No. 15 also said that one of the two men had “short dirty blonde hair,” which is not consistent with appellant’s appearance. (15 RT 2054.) In anycase, as the prosecutor acknowledged in his closing argument, Witness No. 15 did not identify appellant as one of the men he had seen that day. (27 RT 3408.) Similarly, two of the victims’ neighbors (Witnesses Nos. 8 and 9) observed several men cometo the victims’ houseon the afternoonofthe murders (13 RT 1697, 1723), but, again as the prosecutor acknowledgedin his closing argument,neither of 202 them could “identify anybody.” (27RT 3407.) Consequently, noneofthis testimony had any tendency to connect the defendant with the crime charged, and thus fails to provide the necessary corroboration of Witness No.16’s testimony. With respect to the eventslater that day at the Torres house, Elizabeth Torres and Witness No.13 identified appellant as one of the men who cameto the house on the evening of April 22, 1995, but neither of them claimed to have seen appellant leave the house together with Torres and the other men.”? The necessary corroborative evidence must connect the defendant with the crimeitself, not simply with its perpetrators. (People v. Robinson, supra, 61 Cal.2d at p. 400; People v. Falconer, supra, 201 Cal.App.3d at p. 1543; In re Ricky B., supra, 82 Cal.App.3d at p. 111.) Thus, even if the jury credited Mrs. Torres and Witness No. 13’s testimony, the jury could not reasonably infer from appellant’s mere presenceat the Torres houseearlier in the evening that he left with the other Sangra gang members and went to El Monte later in the evening, muchless that appellant played anyrole in the offenses. Renee Chavez, Daniel Logan’s girlfriend,testified that she saw Logan, AnthonyTorres, and a third person whom she could notidentify standing near Logan’s blue Nissan Maxima in the driveway of the Torres residence at 10:15 p.m. on the night of the murders. (14 RT 1954-1955.) While Chavez was acquainted with appellant (14 RT 1949, 1951), she did not say that she saw him that night or identify him as the third person she ™ Mrs. Torrestestified that when she left her house to go to her daughter’s homeat about 9:30 p.m., her son andhis friends hadalreadyleft the house. (14 RT 1893.) However, neither Mrs. Torres nor Witness No. 13 testified that they saw any of the men leave the house. 203 saw with Logan and Torres. Thus, Chavez’s testimony did not have any tendency to connect appellant with the crime charged, and alsofails to provide the necessary corroboration of Witness No. 16’s testimony. Witness No. 14’s testimony tended to implicate co-defendant Palma in the crimes, but it had no tendencyto implicate appellant in any way. Witness No.14 testified that on the night of the murders he was with Luis Maciel at Maciel’s house in El Monte when a black Nissan Maximapulled up and a man approached them. (19 RT 2470.) Maciel introduced the man to Witness No. 14 as “Character,” and Character told Maciel that he was “going to take care of business” and that he was “strapping.” (19 RT 2470, 2473.) Maciel then instructed Witness No. 14 to give Character a half-gram of heroin. (19 RT 2473.) Attrial, Witness No. 14 identified Palmaas the man to whom Maciel introduced him that night. (19 RT 2472.) However, the only person Witness No. 14 sawthat night was “Character”; he did not claim to have seen appellant with Palmathat night. Thus, Witness No. 14’s testimony had no tendency to connect appellant with the charged crimes and- failed to provide the necessary corroboration of Witness No. 16’s testimony. The prosecution presented testimony from four witnesses (Witnesses Nos.1, 2, 3, and 8) who werein the vicinity of the victims’ residence on Maxson Road whenthe murders occurred that night. None of these witnesses identified appellant, described seeing someone who resembled him, or implicated him in the crimes in any way. While Witnesses Nos.1, 2, and 3 testified that they saw a vehicle that appeared to be a Nissan Maxima (14 RT 1919-1920, 1930-1931), this testimony only tended to connect Logan, Torres, and Palma to the murders, because — unlike for the these co-defendants — there was no evidence, other than Witness No. 16’s 204 uncorroborated testimony, that tended to connect appellant to a Nissan Maximathat night. The prosecution’s extensive testimony and evidence about the pager and phonecalls similarly failed to connectappellant to the other defendants, muchless to the murders. While that evidence indicates that Maciel was paged numeroustimes from the residences of Ortiz, Torres, and Palma on the night of the murders andthe next day, there was no evidence of any - contact at all between Maciel and appellant. (20 RT 2608-2618.) In his closing argumentat the guilt phase, the prosecutor placed great emphasis on the fact that the telephone records from the Torres residence indicated that someone usedthe telephoneat Torres’s house to page Veronica Lopez five times between 11 p.m. and midnight on April 22, 1995. (27 RT 3449-3450.) Onthe basis of Lopez’s testimony that she and appellant had dated at one time (13 RT 1669), the prosecutor arguedthat these pages were appellant’s “personal hand stamp” and showedthatafter appellant “went out there [to El] Monte], took part in killing these people,” he then “‘callfed] Veronica Lopez for a date.” (27 RT 3450.) This grossly improper argument wasutterly without evidentiary support. In fact, Lopez testified that she did not recall receiving any pages from appellant that night, and that she had not seen him since New Year’s Eve. (13 RT 1666.) It would be pure speculation to concludethat the pages were necessarily placed by appellant simply because appellant and Lopez had dated months earlier. Indeed, as defense counsel suggested, it would be just as plausible to conclude that one of the other Sangra members at Torres’s house was paging Lopez in an attempt to contact appellant. (28 RT 3487.) In any event, even assuming, arguendo,that appellant paged Lopez from the Torres residence in Alhambra, such evidence simply has no logical 205 tendency to connect appellant to the murders that were committed in El Monte. Finally, the ballistics evidence failed to provide sufficient corroboration of Witness No. 16’s testimony. The prosecution presented testimony from ballistics expert Dale Higashi that a comparison of a .38 caliber bullet recovered from the living room wall of the residence at 2659 Greenleaf with a .38/.357 Magnum bullet recovered from the autopsy of Gustavo Aguirre and a .38/.357 Magnum bullet recovered from the crime sceneindicated that all three bullets had the same “general rifling characteristics.” (19 RT 2430.) However, this evidence simply indicated, at most, that the three bullets had been fired from the same kind of firearm; Higashi could not determine whether the three bullets had been fired from the same gun. (19 RT 2451.) In fact, the bullets may not have even been fired from thesamekind of firearm; as Higashi acknowledged, the general rifling characteristics commonto the three bullets were consistent with revolvers made by four different gun manufacturers. (19 RT 2451.) Higashialsotestified that he compared expended .45caliber casings recovered from the crime scene with several .45 caliber bullets that were found in a bag of ammunition that was recovered from a search of _appellant’s former residence at 1359 Peppertree Circle, and he concluded that at some point the bullets and casings had been chambered in the same firéarm. (19 RT 2444-2445.) However, the evidenceattrial established that appellant wasnotliving at the residence at 1359 Peppertree Circle whenthe .45 caliber bullets were recovered on May 15, 1995, and had not been living there for more than two weeks. (24 RT 3174-3177 [testimony of appellant’s stepfather, Trentt Hampton, that appellant wasliving in his homein Utah between April 30 and June 1, 1995]; 26 RT 3331-3332 [one- 206 way SouthwestAirlineticket for passenger Richard Valdez from Ontario, California to Salt Lake City, Utah, dated April 30, 1995].) In fact, at the time the search warrant was executed at 1359 Peppertree Circle, appellant’s brother, Alex Valdez,told law enforcementofficers that the closet in which the bullets were found was his. (18 RT 2368.) Alvina Luparello, the owner of the condominium at 1359 Peppertree Circle, testified that when she went to the apartment sometime in early Mayto collect rent, she did not see appellant at the apartment although shedid see his brother Alex. (21 RT 2875-2876.) In addition, Luparello testified that she believed there were “‘a lot of people living inside” the apartmentat that time, including one “guy [who] didn’t sign the lease,” but she did not know whothey were. (21 RT 2876.) Further, it was clear from the testimony of several other witnesses that numerous Sangra gang members had accessto the apartmentat PeppertreeCircle. Victor Jimeneztestified that there were many people at the apartment whenhevisited it between April 21st and May 15th, including other Sangra gang members. (14 RT 1835-1836.) Similarly, Witness No. 16 testified that he saw several Sangra gang members when he visited the Peppertree Circle apartment, including “Mugsy”and “Listo.” (21 RT 2852-2854.) In short, given all of this evidence, the jury could not reasonably infer that the .45 caliber bullets recovered from the Peppertree Circle apartment more than two weeksafter appellanthadlast lived there wererelated to him atall. - Thus, once Witness No. 16’s testimony is eliminated from the case, there is insufficient evidence corroborating his testimony regarding appellant’s purported involvementin the homicides. 207 F. Appellant’s Convictions and Death Judgment Must Be Reversed The Supreme Court has recognized that where the prosecution’s case in “maystand orfall on the jury’s belief or disbelief of one witness,that witness’s credibility is subject to close scrutiny.” (United States v. Partin (5th Cir. 1974) 493 F.2d 750, 760, citing Gordon v. United States (1953) 344 U.S. 414, 417.) Here, the failure of the trial court to instruct the jury that Witness No. 16 was an accomplice of law allowed the jury to return a verdict on his testimony alone, without giving it the close scrutinyit warranted. | From a review of the entire record and with Witness No. 16’s testimony removed,a rational trier of fact could not have found appellant guilty beyond a reasonable doubt, and,as a result, appellant’s convictions must be reversed. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-578.) Therefore,the trial court’s failure to properly instruct the jury effectively lightened the prosecution’s burden of proof and thereby violated appellant’s rights to a jury trial and to due process. (Carella v. California (1989) 491 U.S. 263; In re Winship, supra, 397 U.S.at p. 361; see also Banks v. Dretke (2004) 540 U.S. 668, 701-702 [defendant denieda fairtrial in part because jury “did not benefit from customary, truth-promoting precautions that generally accompanythe testimony of informants’”’].) Further, because the law regarding accomplice-witnessinstructions ‘is applicable to the penalty phase of a capitaltrial, it is ipso facto a necessary componentof guaranteeing the reliability of the evidence which is presented to a jury makinga life-or-death decision. Since double "jeopardy considerations bar a retrial (Burks v. United States (1978) 437 U.S. 208 1), the trial court should be directed to dismiss these offenses from the accusatory pleading with prejudice. | Finally, because appellant wasentitled understate law to have the jury which was determining his fate properly instructed,thetrial court’s failure to do so violated his right to due process under the Fourteenth Amendment of the United States Constitution. (Hicksv. Oklahoma, supra, 447 U.S.at p. 346; see also Clemons v. Mississippi (1990) 494 U.S. 738, 746 [“[c]apital sentencing proceedings mustof coursesatisfy the dictates of the Due Process Clause”’].) Forall the foregoing reasons, appellant’s convictions and death judgment mustbe reversed. tt Il - 209 7 THE TRIAL COURT PREJUDICIALLY ERRED BY INSTRUCTING THE JURY WITH CALJIC NO.2.11.5 BECAUSE THE JURY MAY HAVE INTERPRETED THE INSTRUCTION AS PRECLUDING IT FROM CONSIDERING WITNESSNO. 16’S IMMUNITY FROM PROSECUTIONIN ASSESSING HIS CREDIBILITY : _At the guilt phase, the trial court instructed the jury pursuantto CALJIC No.2.11.5 (Unjoined Perpetrators of Same Crime)that it should | not “discuss or give any consideration as to why” persons other than the defendant who may have been involved in the crime were notbeing prosecutedin this trial. (CALJIC No. 2.11.5 (1989 Revision); VI CT 1754; 27 RT 3380-3381.) There was evidencethat Witness No. 16 wasdirectly involved as an aider and abettor and/or co-conspirator in the crimes yet had been granted immunity in exchangefor his testimony against appellant and his co-defendants. This Court has repeatedly held thatit is error forthetrial court to instruct the jury with CALJIC No.2.11.5 when a person who might have been prosecuted for the crimehastestified at trial. Because the testimony of Witness No. 16 wascritical to the state’s case against appellant, the trial court prejudicially erred in instructing the jury not to consideror discuss why he wasnot being prosecutedin this trial. Reversal of the entire judgmentis required. A. Proceedings Below The prosecution’s star witness, Witness No. 16, testified against appellant in exchange for immunity from prosecution. (20 RT 2678, 2798.) On the evening of April 22, 1995, Witness No. 16 drove Jimmy Palma to Anthony Torres’s house because Palmatold him “they hadto take care of something” and “the brothers wanted him.” (20 RT 2683.) At Torres’s 210 house, Witness No. 16 and Palma met with a numberof other Sangra gang members, and Pepe Ortiz announcedthatthere was “‘a problem in El Monte”andthat they had to go there “to take care of something.” (20 RT 2687, 2691.) Witness No. 16 understood Ortiz to mean that they were going to assault or kill somebody. (20 RT 2687-2694; 21 RT 2776, 2782, 2802, 2804-2805.) Witness No. 16 saw a shotgunat the foot of the bed in the room. (20 RT 2685.) Witness No. 16 then drove Ortiz andCreepy to El Monte, where Ortiz got out of the car and “look[ed] up and downthestreet” as the murders were committed at the victims’ residence on Maxson Road. (20 RT 2697-2705.) Witness No. 16, Ortiz, and Creepy then drove back to Torres’s house where they regrouped with the other Sangra gang members. (20 RT 2709-2710.) At the guilt phase, the trial court instructed the jury with CALJIC No. 2.11.5 (1989 Revision) (Unjoined Perpetrators of Same Crime). That instruction states: . There may be some evidencein this case indicating that a person or personsother than the defendant was or may have been involved in the crime for which the defendants are now ontrial. There may be many reasons why such personsare not here ontrial; therefore, do not discuss or give any . consideration as to why the other people are not being prosecutedin this trial or whether they have been or will not be prosecuted in the future. Your sole duty is to decide whether the People have provedthe guilt of these defendants ontrial. (VI CT 1754; 27 RT 3380-3381.) Thetrial court also instructed the jury, pursuant to CALJIC No. 3.10 (Accomplice — Defined), that “[a]n accomplice is a person who wasoris 211 subject to prosecution for the identical offenses charged in Counts 2 through 6 against the defendants on trial.” (VI CT 1714; 27 RT 3353.) Further, the trial court instructed the jury, pursuant to CALJIC No. 3.19 (Burden to Prove Corroborating Witness is an Accomplice), that the jury “must determine whether Witness No. 16 and Witness No. 14 are accomplices as I have defined that term.” (27 RT 3356; VI CT 1720.) B. TheTrial Court Prejudicially Erred in Giving CALJIC No. 2.11.5 When There Was Evidence That Witness No. 16 Was Involved in the Crimes and Had Been Granted Immunity from Prosecution in Exchangefor his Testimony This Court has repeatedly held that trial courts should not give CALJIC No. 2.11.5 when a person who might have been prosecuted for the crimehastestified at trial. (People v. Hernandez (2003) 30 Cal.4th 835, 875; People v. Lawley, supra, 27 Cal.4th at p.162; People v. Williams, supra, 16 Cal.4th at pp. 226-227; People v. Cain (1995) 10 Cal.4th 1, 35; People v. Hardy (1992) 2 Cal.4th 86, 190; People v. Price (1991) 1 Cal.4th 324, 446; People v. Cox (1991) 53 Cal.3d 618, 667; People v. Carrera | (1989) 49 Cal.3d 291, 312, fn. 9; People v. Marks (1988) 45 Cal.3d 1335, 1347,italics added [““The Use Note to CALJIC No. 2.11.5 states: “This instruction is not to be used if the other person is a witness for either the prosecution or defense.’”]; see also People v. Rankin (1992) 9 Cal.App.4th 430, 437 [CALJIC No. 2.11.5 should not be given when the non-prosecuted persontestifies “because the jury is entitled to consider the lack of | prosecution in assessing the witness’ credibility’”’].) In this case, the trial court gave CALJIC No. 2.11.5 when there was evidence presented to the jury that Witness No. 16 was involved in the offense and could have been prosecuted for the crimes about which he was 212 testifying. Indeed, the jury was instructed thatit had to determine whether Witness No. 16 was an “accomplice,” which the court defined as “a person who wassubject to prosecution” for the same offenses for which the defendant was ontrial. Had the jurors determined that Witness No. 16 was an accomplice, CALJIC No. 2.11.5 instructed the jurors not to “discuss or give any consideration as to why[they] are not being prosecutedin this trial or whetherthey have been or will not be prosecuted in the future.” As this Court has repeatedly held, that wasclearly error. | Because Witness No. 16 had been granted immunity from prosecution in exchangefor his testimony against appellant — and becauseit would not be an unreasonable construction of the evidence forthe jury to conclude that Witness No. 16 was falsely blaming appellantfor acts that Witness No. 16 committed himself — it was essential for the jury to be able to discuss and consider his grant of immunity in assessing his credibility as a witness. Therefore,the trial court in the instant case erred whenit instructed the jury notto “discuss or give any consideration why other people are not being prosecuted . . . or whether they have beenor will not be prosecuted in the future.” (VI CT 1754; 27 RT 3380-3381; CALJIC No. 2.11.5.) In fact, the jury was entitled to consider the fact that Witness No. 16 wasnot being prosecuted for his role in the offenses in assessing his credibility. (People v. Hernandez, supra, 30 Cal.4th at p. 875; People v. Rankin, supra, 9 Cal.App.4th at p. 437.) The jury wasalso instructed with CALJIC No. 2.20, which permits the jury to consider “‘[t]he existence or nonexistenceofa bias, interest or other motive” in evaluating a witness’s testimony. (VI CT 1772; 29 RT 3688.) However,this instruction regarding a witness’s “bias, interest or other motive”as a general matter did not negate the fact that CALJIC No. 213 2.11.5 specifically and affirmatively precluded the jury from considering an accomplice witness’s immunity from prosecution in assessing his credibility. Thus, the jury may well have understoodthat, while they were permitted to consider a witness’s “bias, interest or other motive” as a general matter, they were specifically forbidden from considering why an accomplice witness was not being prosecuted for the crimes about which he wastestifying. C. The Instruction Deprived Appellantof his Rights to a Fair Trial and to Present a Complete Defense A criminal defendanthasa right to a “meaningful opportunity to present a complete defense.” (Crane v. Kentucky (1986) 476 U.S. 683, 690, quoting California v. Trombetta (1984) 467 U.S. 479, 485; see also Washington v. Texas (1967) 388 U.S. 14, 22.) A complete defense includes the right to present evidence whichtests the credibility of prosecution witnesses through proof of bias, interest or inducementsto lie. (People v. Duran (1976) 16 Cal.3d 382, 294.) Jury instructions which invade the province of the jury to determine the credibility of witnesses deprive the accusedofa fair trial. (United States v. Rockwell (3d Cir. 1986) 781 F.2d 985, 990.) Moreover, the Courthas held that “[w]Jhen the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidenceaffecting credibility” violates due process. (Giglio v. United States (1972) 405 U.S. 150, 154, quoting Napuev.Illinois (1959) 360 U.S. 264, 269.) A jury instruction which directs the jury to disregard evidence bearing on the credibility of a critical witness who may well be determinative of guilt or innocence has exactly the sameeffect. 214 Here, thetrial court’s instructional error improperly assisted the prosecution in overcomingthe credibility problems of Witness No. 16,its star witness. Becausethetrial court’s delivery of CALJIC 2.11.5 undercut the defense effort to persuade the jury not to believe Witness No. 16, the instruction violated appellant’s rights under the Sixth and Fourteenth Amendmentsto fair trial and to present a complete defense. D. Reversal of the Entire Judgment is Required Thetrial court’s error was not harmless. Again, Witness No. 16 was the only witness whose testimony implicated appellant as one of the two shooters in the murders. His testimony was indispensable to the prosecution’s ability to obtain murder convictions against appellant in this case. In order to properly and fully assess his credibility, it was necessary forthe jury to consider the fact that he had been granted immunity from prosecution. (See People v. Hernandez, supra, 30 Cal.4th at pp. 876-877 [instructionalerror related to prosecution witness was prejudicial where jury could have concludedwitness was an accomplice and he wasthe “only witness who saw defendantattack” the victim and who saw them together at the crime scene].) | Moreover, the People cannotestablish that, as to the guilt determination, the federal constitutional error in improperly buttressing the credibility of this critical prosecution witness was harmless beyond a reasonable doubt. Indeed, given the central role Witness No. 16 played in the prosecution's case, the errorin instructing under CALJIC 2.11.5 cannot be deemed harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. 18, 24.) In sum,the trial court committed prejudicial error by preventing the jury from considering, in assessing the credibility of Witness No.16, that he 215 had not been prosecuted and may have had a motiveto lie for the prosecution. Reversal of the entire judgmentis required. Hf I 216 8 APPELLANT’S CONVICTIONS AND THE DEATH JUDGMENT MUSTBE REVERSED BECAUSE LIABILITY CANNOT BE BASED ON AN UNCHARGED CONSPIRACY A. Proceedings Below Priorto trial, the prosecution filed a motion to be allowed to proceed on a conspiracy theory even though a conspiracy wasnotalleged in the indictment. (VI CT 1554-1561.) The court granted the motion,stating: “T think the law is clear. Conspiracy does not have to be charged in order to produce evidence of a conspiracy.” (2B RT 462.) In a subsequentpretrial proceeding before the presiding judge at trial, the prosecutor explained that he filed a motion and points and authorities seeking to be allowed to proceed on a conspiracy theory even though one wasnot chargedin the indictment, and that Judge Sarmiento ruled that he could do that. (3 RT 687.) Judge Trammell agreed: “Conspiracy is a theory ofliability and you don’t have to charge conspiracy.” (3 RT 690.) Atthe close of the guilt phase, thetrial court gave the jury 12 instructionsrelated to the law of conspiracy.” ™ The motionrelied on People v. Rodrigues (1994) 8 Cal.4th 1060, and People v. Balmontes (1988) 45 Cal.3d 744, for authority. (VI CT 1555- 1556.) 75 CALJIC No. 6.10.5 (Conspiracy and Overt Act — Defined — Not Pleaded as a Crime Charged); CALJIC No.6.11 (1991 Revision) (Conspiracy — Joint Responsibility); CALJIC No. 6.12: Conspiracy — Proof of Express Agreement Not Necessary; CALJIC No. 6.13 (Association Alone Does Not Prove Membership in Conspiracy); CALJIC No.6.14 (Acquaintance with All Co-Conspirators Not Necessary); CALJIC No. 6.15 (continued...) 217 B. Failure to Charge Conspiracyin the Information Violates Federal Constitutional Principles It is a fundamental principle of constitutional law that a person may not be convicted of an uncharged offense (other than lesser included offenses), whether or not the evidence establishes the uncharged offense. (Cole v. Arkansas (1948) 333 U.S. 196, 201; People v. Toro (1989) 47 Cal.3d 966, 973; People v. Thomas (1989) 43 Cal.3d 818, 823; People v. West (1970) 3 Cal.3d 595, 612.) “No principle of procedural due process iS more clearly established than that notice of the specific charge, and a chanceto be heardin a trial of the issues raised by that charge, if desired, are amongthe constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” (Cole v. Arkansas, supra, 333 USS. at p. 201.) Itis the accusatory pleading that provides notice that the prosecution will seek to prove the elements of an offense. (West, at p. 612.)"6 * (...continued) (Liability for Independent Acts of Co-Conspirators); CALJIC No. 6.16 (When Conspirators Not Liable for Act of Co-Conspirator); CALJIC No. 6.17 (Conspirators Not Bound by Actor Declaration of Non-Conspirator); CALJIC No. 6.18 (Commission of Act in Furtherance of a Conspiracy Does NotItself Prove Membership in a Conspiracy); CALJIC No. 6.19 (Joining Conspiracy After Its Formation); CALJIC No. 6.22 (Conspiracy — Case Must Be Considered as to Each Defendant); CALJIC No. 6.24 (1995 Revision) (Determination of Admissibility of Co-Conspirator’s Statements). (See VI CT 1722-1733; 27 RT 3357-3364.) 76 In a series of recent cases, the United States Supreme Court has reiterated the due process andjury trial guarantees of notice and jury determination of all elements based on proof beyond a reasonable doubt. (Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey (2000) 530 U.S. 466; Jones v. United (continued...) 218 The accusatory pleading in this case did not charge appellant with conspiracy, yet the prosecutionrelied atleast in part on a theory of derivative liability based on an uncharged conspiracy to obtain convictions on the five murder counts. That is, the prosecution arguedthat the jury could find murderby finding that appellant had engaged ina conspiracy resulting in a murder. (29 RT 3618 [prosecutor argued in closing argument to the jury that there was “[c]lear evidence that these men had to discuss, talk about, and plan what they were going to do’”’].) So while appellant was not technically “convicted” of conspiracy, he was forced to defend against the uncharged conspiracy claim in an attempt to avoid conviction for murder. Allowing the uncharged conspiracyto be used as a theory of criminal liability for murder denied the federal constitutional due process and jury trial guarantees. The resulting murder convictions must be reversed. © 76 (...continued) States (1999) 526 U.S. 227.) As the Court stated in Jones: “[U]nder the Due Process Clause of the Fifth Amendmentand the notice andjurytrial guarantees of the Sixth Amendment, any fact (other than a prior conviction) that increases the maximum penalty for a crime must be chargedin the indictment, submitted to the jury, and proven beyond a reasonable doubt.” (Jones v. United States, supra, 526 U.S.at p. 243, fn. 6, emphasis added.) The Fourteenth Amendment commandsthe same requirementin a state prosecution. (Apprendi v. New Jersey, supra, 530 U.S.at p. 490.) While these recent cases concerned sentencing provisions, the due process and jury trial guarantees relied on in those cases stem from the basic principles long recognized by the Supreme Court as applying to guilt determinations. (See, e.g., Cole v. Arkansas, supra, 333 U.S.at p. 201.) 219 C. An Uncharged Conspiracy Violates the Principle of California Law Requiring That Crimes Be Defined Only By Statute There are no common-law crimesin California. Criminalliability extends only to those who commit offenses defined as crimes by the Legislature. No court-created doctrine may create a new form of criminal liability. (§ 6; In re Brown (1973) 9 Cal.3d 612, 624; People v. Apodaca (1978) 76 Cal.App.3d 479, 491.) Penal Codesection 31 defines the principals that may be held liable for a crime.”” Because the statutory definition of principals does not include conspirators, participation in a conspiracy aloneis not an authorized basis for finding a person guilty of any offense other than conspiracy, a crime also defined by statute. (See § 182.) | The federal rule permits finding a co-conspiratorliable for a substantive offense committed by another co-conspirator in furtherance of the conspiracy. (See Pinkerton v. United States (1946) 328 U.S. 640.)” However, the Pinkerton rule has been the subject of much criticism and has 7” At the time pertinent to this case, Penal Code section 31 provided: WHOAREPRINCIPALS. All persons convicted in the commission of a crime, whetherit be felony or misdemeanor, and whethertheydirectly commit the act constituting the offense, or aid and abet its commission,or, notbeing present, have advised and encouraged its commission,andall persons counseling, advising, or encouraging children underthe age of fourteen years, lunatics or idiots, to commit any crime, or who,by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command,or coercion, compel another to commit any crime, areprincipals in any crime so committed. 8 In Pinkerton, unlike the present case, the defendant was charged with conspiracy as well as the substantive offense. 220 been rejected by moststates. As pointed out by LaFaveand Scott, “the Pinkerton rule never gained broad acceptance,” and has been widely rejected. (LaFave and Scott, Criminal Law (2d ed.), § 6.8, pp. 587-589 and fn. 16.) Moststates, with a very few exceptions, have declined to include conspiracy as a basis or theory for criminalliability for substantive, non- conspiracy offenses. (Ibid.) Asnoted above, section 31 does not provide a definition of principals liable for a crime subject to such a broad interpretation. Althoughliability extends to an aider and abettor, liability is not extended underthe statute to a conspirator. California law does not permitliability for another crime to be based on an uncharged conspiracy. The use of an uncharged conspiracy to support the murder conviction violated California law. This deviation from the authorized state statutory schemealso violated federal dueprocess because appellant had a protected state-created liberty interest in enforcementof that statutory scheme. (See Hicks v. Oklahoma, supra, 447 U.S. at p. 346; Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300.) D. This Court Should Re-examine Its Earlier Decisions Regarding the Concept of Uncharged Conspiracy Appellant recognizes that, in People v. Pulido (1997) 15 Cal.4th 713, 720-725, this Court reaffirmed the notion that participation in an uncharged conspiracy maybea basisfor finding vicariousliability for a substantive offense. The Court noted that the conspirator and the aider and abettor stand in the sameposition. (/d. at pp. 724-725.) While the decision did not address the distinction between co-conspirator liability and aider-and- abettor liability, the Court declined to extend vicariousliability to an aider and abettor for acts committed prior to his becoming an accomplice. If one 221 person,acting alone,kills in preparation of a robbery and anotherthereafter aids and abets the robbery by carrying away and securing the property, the second person is an accomplice to the robbery but not liable for murder under Penal Code section 189 because the killer and accomplice were not jointly engaged in the robbery at the timeofthekilling. (/d. at p. 716.) Similarly, this Court’s dicta approving the use of conspiracy as a theory of aiding and abetting liability in People v. Rodrigues (1994) 8 Cal.4th 1060, 1134, and People v. Belmontes (1988) 45 Cal.3d 744, 788, should not control this issue. In Rodrigues, although the defendant was not charged with conspiracy, defense counsel and the prosecutor agreed that the court should instruct with the law relating to conspiracy and admission of co-conspirators’ statements andset forth in CALJIC Nos. 6.10.5, 6.11, and 6.24. (Rodrigues, supra, 8 Cal.4th at p. 1133.) This Court held that consent of defense counselto theinstructions barred appellate review. (Id.at p. 1134.) Thus, any language in Rodrigues that conspiracy instructions are proper wherethere is evidence of an uncharged conspiracyisdicta. Also, in Belmontes, liability properly was found for aiding and abetting because, even underthe defendant’s theory, he had notnotified the otherparties of his intention to withdraw from the crime nor had he done everything in his power to prevent the crime from being committed. Liability was also proper under the felony-murder doctrine, and,as this Court held, the jury’s verdict reflected that it found liability under both theories. (People v. Belmontes, supra, 45 Cal.3d at p. 790.) Thus, the discussion of the conspiracy theory in the Belmontesdecision was unrelated to any issue raised by appellant and unnecessary to affirming the conviction. (Id. at pp. 788-789.) 222 In People v. Washington (1969) 71 Cal.2d 1170, this Court suggestedthatit is permissible to instruct on conspiracy where only a substantive offense is charged if there is evidence of a conspiracy to commit the substantive crime. (/d. at pp. 1174-1175.) However, this portion of the discussion wasnot necessary to the decision. The jury’s verdictin the Washington case necessarily meant that they rejected the defense that the defendant wasnotat the scene of the crime and did not participate in any way. The prosecution’s evidence established defendant’s liability as an aider and abettor. (Jd. at pp. 1172-1174.) None of the above-cited cases identifies the statute showing that an uncharged conspirator can be held liable for a substantive offense based solely on the conspiracy, nor do they explain how this basis ofliability would be constitutional under California law. This Court should clarify that criminalliability under California law is controlled by statute and that no statutory authority allows an uncharged conspiracy to serve as a basis for liability for another crime- E. An Uncharged Conspiracy As a Theory of Criminal Liability Creates an Impermissible Mandatory Presumption Moreover, an uncharged conspiracyas basis for criminalliability creates a mandatory conclusive presumption that a person who engagesin an uncharged conspiracy to commit a substantive offense is guilty of the substantive offense later committed by others. Once the jury finds a defendantto be a co-conspirator, the instructions make it unnecessary for them to find that he acted as a principal byeitherdirectly committing the crime or aiding and abetting in its commission. This approach to vicarious liability creates a mandatory conclusive presumption becauseit informs the | jury “*‘that it must assumethe existence ofthe ultimate, elemental fact from 223 proof of specific, designated basic facts.’” (People v. Roder (1983) 33 Cal.3d 491, 498, quoting Ulster County Court v. Allen (1979) 442 U.S. 140, 167.) It “removes the presumed element from the case oncethe State has _ provedthe predicate facts giving rise to the presumption.” (Francis v. Franklin (1985) 471 U.S. 307, 314, fn. 2.) Mandatory conclusive presumptions of guilt are prohibited by Sandstrom v. Montana, supra, 442 U.S. at pp. 512-515 and Carella v. California, supra, 491 U.S. at pp. 265-266, where, as here, the defendant could rationally be acquitted of the substantive crime without the improper mandatory conclusive presumption. Anerror of this kind, which lightens the prosecution’s burden of proof, violates the federal constitutional guarantees of due process andthe rightto trial by jury (U.S. Const., 6th & 14th Amends.;” Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 740; see In re Winship (1970) 397 U.S. 358, 364), and requires reversal unless the error “surely” did not contribute to the verdict. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279). Such error requires reversal unless this Court is able to declare it harmless beyond a reasonable doubt. (Rose v. Clark (1986) 478 U.S. 570, 577; People v. Reyes-Martinez (1993) 14 Cal.App.4th 1412, 1416-1419.) F. The Use of an Uncharged Conspiracy as a Basis for Liability for First Degree Murder Prejudiced Appellant The People cannotestablish harmless error in appellant’s case. The jury found appellant guilty of first degree murder on general verdict forms. (VII CT 1800-1804.) Because of the general verdicts, it cannot be ascertained whichtheory or theories the jury relied on in convicting Tt also violates article I, sections 7 and 15 of the California _ Constitution. 224 appellant of five counts of murder. Thus the State cannot show that the jury did not rely on the invalid conspiracy theory in arriving at the murder finding. It is conceivable that the jury relied on a conspiracy theory to convict appellantof all five counts of murder. The only witness who implicated appellant as one of the shooters was Witness No.16, who had been granted immunity from prosecution in exchangefor his testimony and who,byhis own admission, wentto the crime scene with the other gang members on the night of the crimes. The jury may well have concluded that Witness No. _ 16’s testimony implicating appellant as one of the shooters was unreliable, yet also relied on other evidence to conclude that appellant was culpable for the five murders, irrespective of whether he shot any of the victims, on the basis of the uncharged conspiracy theory. Underthe court’s conspiracy instructions, the jury could have found appellant guilty ofall five murders if the jury concludedthat he conspired with the other Sangra membersandif a co-conspirator or co-conspirators committed the murders and they were a natural and probable consequenceofthe target offense. To prevail on this theory, the prosecution would not have had to prove that appellant shared his co-conspirators’ intent with respect to any of the murders. In short, the conspiracy instructions created an additional theory of derivative culpability that, unlike aiding and abetting, did not require a finding that appellant shared the intent of the actual murderers. Consequently, the prosecution’s use of the uncharged conspiracy theory requires thatall five counts of murder be reversed. At a minimum,the prosecution’s reliance on the uncharged conspiracy theory requires that appellant’s convictions for the murders of Maria Moreno, Laura Moreno, and Ambrose Padilla be reversed, because 225 the prosecution urged the jury to convict appellant on the basis of such a theory. The prosecution’s theory at trial was that appellant shot the two adult male victims, Anthony “Dido” Moreno and Gustavo “Tito” Aguirre, while co-defendant Palma shot Maria Morenoand her two children,five- year-old Laura Morenoand six-month-old Ambrose Padilla. (12 RT 1606, 1632; 27 RT 3399, 3459.) Thus, the jury could have found appellant guilty of the murders of Maria Moreno, Laura Moreno, and Ambrose Padillaif the jurors believed appellant participated in an agreement to commit the murder of one of the other victims (e.g., Dido Moreno and/or Tito Aguirre) andif Palma, as a co-conspirator, committed the remaining offenses and they were a natural and probable consequenceofthe target offense. To prevail on this theory, the prosecution would not have hadto prove that appellant shared Palma’s intent with respect to the murders of Maria Moreno, Laura Moreno, and AmbrosePadilla. Since there was no evidence presented to the jury to suggest that appellant had any intent to murder Maria Morenoorher two children,it is likely that the jury’s verdicts convicting appellant of Counts 4 (Maria Moreno), 5 (Laura Moreno), and 6 (Ambrose Padilla) were based on the uncharged conspiracy theory. Further, because the murders of Maria Moreno and her children were indisputably the most highly aggravated, . appellant was prejudiced by the prosecution’s reliance on the uncharged conspiracy theory at the penalty phase as well. Asshown above, giving instructions on the uncharged conspiracy theory violated state law and federal constitutional law. The error relating to reliance on the uncharged conspiracy theory cannot be considered harmless. (Chapman v. California, supra, 386 U.S. at p. 24.) Reversal of appellant’s convictions and death judgmentis required. Hl 226 9 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GIVING INCOMPLETE AND , CONFUSING INSTRUCTIONS ON CONSPIRACY A. Introduction The United States Supreme Courthasstated repeatedly the importanceof ensuring that jurors in criminalcases are instructed adequately on the applicable law. “It is quite simply a hallmark of ourlegal system thatjuries be carefully and adequately guided in their deliberations.” (Gregg v. Georgia (1976) 428 U.S. 153, 193 [opn. of Stewart, Powell, and Stevens, JJ.].) “Discharge of the jury’s responsibility for drawing appropriate conclusions from the testimony depend{s] on discharge of the judge’s responsibility to give the jury the required guidancebya lucid statementof the relevant legal criteria.” (Bollenbach v. United States (1946) 326 U.S. 607, 612.) “Jurors are not experts in legal principles; to function effectively, and justly, they must be accutately instructedin the law.” (Carter v. Kentucky (1981) 450 U.S.288, 302.) This Court has also recognized the necessity of complete instructions on the applicable law. A trial court mustinstruct sua sponte on those generalprinciples of law which are “closely and openly connected with the facts before the court, and which are necessary for a jury’s understanding of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 715.) ' Tn appellant’s case, thetrial court failed to give complete and accurate instructions relating to the law of conspiracy. Assuming arguendo that it is proper to baseliability on an uncharged conspiracyin thefirst place (see Argmt. 8, supra), complete instructions on the law of conspiracy are at least required. Full and fair instructions were necessary because conspiracy servedas oneof the bases for the murder verdicts. The jury’s 227 ability to fairly apply the conspiracy theory ofliability depended on a proper determination of the existence of a conspiracy. That could not happen in appellant’s case where the jury received only partial instructions on the law of conspiracy. | Byfailing to identify any overt acts, failing to identify the object or objects of the conspiracy,failing to require unanimous agreementon the — object or objects and overall finding of conspiracy, and failing to require proof beyonda reasonable doubt,the trial court violated appellant’s federal constitutionalrights under the Sixth, Eighth and Fourteenth Amendments to a fair jury trial, reliable guilt determination and due process. It also violated appellant’s state constitutional and statutory rights as explained below. Theseerrors resulted in a fundamentally unfair trial and unreliable conviction that must be reversed. B. The Jury Instructions Failed to Allege Overt Acts Asnoted previously, the prosecutor used an uncharged conspiracy as one possible basis for finding first degree murder. The jury heard 12 instructions concerning conspiracy,” including CALJIC No.6.10.5, which 8 CALJIC No. 6.10.5 (Conspiracy and Overt Act — Defined — Not Pleaded as a Crime Charged (VI CT 1722; 27 RT 3356-3358); CALJIC No. 6.11 (1991 Revision) (Conspiracy — Joint Responsibility) (VI CT 1723; 27 RT 3358-3360); CALJIC No.6.12 (Conspiracy — Proof of Express Agreement Not Necessary) (VI CT 1724; 27 RT 3360); CALJIC No. 6.13 (Association Alone Does Not Prove Membership in Conspiracy) (VI CT 1725; 27 RT 3360); CALJIC No. 6.14 (Acquaintance With All Co- Conspirators Not Necessary) (VI CT 1726; 27 RT 3360-3361); CALJIC No. 6.15 (Liability for Independent Acts of Co-Conspirators) (VI CT 1727; 27 RT 3361); CALJIC No. 6.16 (WhenConspirators Not Liable for Act of Co- Conspirator) (VI CT 1728; 27 RT 3361-3362); CALJIC No. 6.17 (Conspirators Not Bound by Act or Declaration of Non-Conspirator) (VI CT 1729; 27 RT 3362); CALJIC No. 6.18 (Commission of Act in (continued...) 228 requires that a conspirator must have committed at least one “overt act” in furtherance of the object of the conspiracy. Theinstructionstates: In order to find a defendant to be a memberof a conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one overt act. It is not necessary to such a finding as to any particular defendant that defendant personally committed the overt act, if he was one of the conspirators when such an act was committed. The term “overt act” means any step taken or act committed by one or more of the conspirators which goes beyond mere planning or agreement to commita public offense and whichstep or act is done in furtherance of the: accomplishmentof the object of the conspiracy. To be an “overt act,” the step taken or act committed need not, in and ofitself, constitute the crime or even an attempt to committhe crime whichis the ultimate object of the conspiracy. Noris it required that such step oract, in and of itself, be a criminal or unlawfulact. (VI CT 1722; 27 RT 3357-3358.) This instruction failed toallege any specific overt acts supposedly performed by any conspirators. Since conspiracy was not charged as a crimein this case, the indictment also failed to allege any overt acts. The silence of the indictment and jury instructions concerning any - particular overt actleft the jury with no guidance onthis critical component 80 (_..continued) Furtherance of a Conspiracy Does NotItself Prove Membershipin Conspiracy) (VI CT 1730; 27 RT 3362); CALJIC No. 6.19 (Joining Conspiracy After its Formation) (VI CT 1731; 27 RT 3362-3363); CALJIC No. 6.22 (Conspiracy — Case Must Be Considered as to Each Defendant) (VI CT 1732; 27 RT 3363); CALJIC No. 6.24 (1995 Revision) (Determination of Admissibility of Co-Conspirator’s Statements) (VI CT 1733; 27 RT 3363-3364). 229 of a conspiracy, and left appellant with no reasonable opportunity to defend against the uncharged conspiracy. This error constituted a violation of both state law and federal constitutional law. The crime of conspiracy is defined in Penal Code section 182. The statute specifically mandates that one or more alleged overt acts must be “expressly alleged in the indictmentor information”andatleast one of the alleged overt acts must be proved. (§ 182, subd. (b).) An overt act allegation is also necessary to establish the proper venue. (§ 182, subd.(a);*’ § 184.°) CALJIC No.6.23 also requiresthat the jury be instructed with the specific overt acts alleged. Even where no conspiracy is charged, assuming arguendo that such a procedureis valid,the trial court is still required to instruct on the law of conspiracy whenthe prosecution hingesliability on a theory of conspiracy. . (People v. Ernest (1975) 53 Cal.App.3d 734, 744-745.) To follow the prosecution’s theory that appellantcould be found liable for murder based on his participation in a conspiracy, the jury necessarily first needed to make a valid finding of a conspiracy. No suchvalid finding could be made without complete instructions on conspiracy. The conspiracy instructions were incomplete, in part, because of the failure to allege specific overt acts. The allegation of overt acts serves 81 This subsection provides in relevant part: “All cases of conspiracy may be prosecuted andtried in the superior court of any county in which any overt act tending to effect the conspiracy shall be done.” 8 Section 184 provides: “No agreement amounts to a conspiracy, unless some act, beside such agreement, be done withinthis state to effect the object thereof, by one or more of the parties to such agreement and the trial of cases of conspiracy maybe had in any county in which anysuch act . be done.” 230 important purposesandis necessary to a proper determination of the existence of a conspiracy. “One purposeofthe overt act requirementis to provide a locus penitentiae — an opportunity to repent — so that any ofthe conspirators may reconsider and abandon the agreementbefore taking steps to further it, and thereby avoid punishment for conspiracy.” (Peoplev. Russo (2001) 25 Cal.4th 1124, 1131; People v. Morante (1999) 20 Cal.4th 403, 416, fn. 4; see also Hyde v. United States (1912) 225 U.S. 347, 358.) “Another purposeis ‘to show that an indictable conspiracy exists’ because 999 ‘evil thoughts alone cannotconstitute a criminal offense.’” (People v. Russo, supra, at p. 1131, quoting People v. Olson (1965) 232 Cal.App.480, 489.) Asthe statutory law identified above shows,to establish a conspiracy specific overt acts must be alleged and foundbythe jury. Case law also_ makesclear that allegation and a finding ofat least one overt act is necessary to find a conspiracy. (People v. Russo, supra, 25 Cal.4th atp. 1134; People v. Morante, supra, 20 Cal.4th at p. 416.) In Russo, ten specific overt acts were alleged. (25 Cal.4th at p. 1130.) Althoughthis Court held in Russo that the jury did not have to agree unanimously on which overt acts were committed, the Court recognized that “the requirementof an overt act is an elementof the crime of conspiracyin the sense that the prosecution mustproveit to a unanimousjury’s satisfaction beyond a reasonable doubt. But that elementconsists of an overt act, not a specific overt act.” (Id. at p. 1134, emphasis in original text.) That does not meanthat there is no requirementthat an overt act be alleged, for such an allegation is required by section 182, subdivision (b), which, as recognized in Russo, also requires that at least one overt act be proved. (/d. at p. 1134.) 231 The failure of the prosecution to identify any overt acts allegedly performed by the defendants violated notonlystate law, but also federal constitutional requirements. “The Due Process Clause of the Fourteenth Amendmentdenies States the powerto deprive the accusedofliberty unless the prosecution proves beyond a reasonable doubt every elementof the charged offense. ... Jury instructions relieving States of this burden violate a defendant’s due processrights.” (Carella v. California, supra, 491 US. 263, 265.) Error of this type, which lightens the prosecution’s burden of proof, violates the federal constitutional guarantees of due process and the rightto trial by jury. (U.S. Const., 6th & 14th Amends.; Jn re Winship, supra, 397 US.at p. 364; Conde v. Henry, supra, 198 F.3d at p. 740.) Appellant also had a protected liberty interest in proper application of the California statutory schemefor alleging crimes. (U.S. Const., 14th Amend.; see Hicks v. Oklahoma,supra, 447 U.S.at p. 346.) C. ‘The Jury Instructions Failed to Properly Allege the: Object of the Conspiracy. Adding to the confusion surroundingthe jury’s task of determining whether a conspiracy existed, already made difficult by the failure to allege any overt acts, the prosecution andtrial court failed to provide clear guidance on the alleged object of the conspiracy. Designation of the alleged object is essential because the jury must determine whether the | purported conspirators had the specific intent to agree to commit a criminal offense. (People v. Morante, supra, 20 Cal.4th at p. 416.) In this case,the trial court gave inadequateinstructionsrelating to the alleged object. Pursuant to CALJIC No.6.10.5, thetrial court instructed: “A conspiracy is an agreement between two or more persons with the specific intent to agree, to commit a public offense such as murder, 232 and with the further specific intent to commit such offense... .” (VICT 1722, italics added; 27 RT 3356-3357.) Rather than directly alleging murderas the alleged object of the conspiracy, the version of CALJIC No. 6.10.5 usedat appellant’s trial contained the inexact and confusing phrase, “such as murder.” This imprecise language suggested that murder was an example of offenses that might constitute the object of the conspiracy rather than clearly setting out the alleged target crimes or objects. This instruction failed to provide adequate guidanceto the jury about how to determine the object or crime originally contemplated by the conspiracy. Case law often refers to the “originally contemplated”criminal objective as the “target crime.” This Court has recognized the importance of properly identifying any target crimes. As the Court explained in People v. Prettyman, supra, 14 Cal.4th 248, 267: “[I]n an aiding and abetting case involving application of the ‘natural and probable consequences’ doctrine, identification of the target crimewill facilitate the jury’s task of determining whether the charged crime allegedly committed by the aider | . and abettor’s confederate was indeed a natural and probable consequence of | any uncharged target crime that, the prosecution contends, the defendant knowingly and intentionally aided and abetted.” (Emphasis added.) While the “natural and probable consequence” doctrine in Prettyman involved aiding and abetting, the Court stated that the doctrine applied equally to conspiracy. (/d. at pp. 260-261.) As noted in Prettyman,“a conviction may not be based onthe jury’s generalized belief that the defendant intended to assist and/or encourage unspecified nefarious conduct.” (Id. at p. 268.) This Court concluded that defining the target crime would eliminate the risk that the jury would “rely on such generalized beliefs as a basis for conviction.” (Jbid.) 233 In appellant’s case,the failure to identify the object of the alleged conspiracy permitted such improper “generalized belief” on the part of the jurors. (Cf. People v. Liu (1996) 46 Cal.App.4th 1119, 1134 [instruction specifically referred to allegationsin the information charging conspiracy which identified the target offense].) D. The Jury Instructions Failed to Require Unanimous Agreement on the Object or Objects and Overall Finding of Conspiracy, and Failed to Require Proof Beyond a Reasonable Doubt The failure to require jury findings on the overt act and the objects of the conspiracy led to further error. Thus,thetrial court omitted a paragraph from CALJIC No.6.22 (Conspiracy — Case Must be Considered as to Each - Defendant). The instruction that the trial court gave read as follows: Each defendantin this case is individually entitled to, and must receive, your determination whether he was a memberof the alleged conspiracy. As to each defendant you must determine whether he wasa conspirator by deciding whether he willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy. (VLCT 1732; 27 RT 3363.) The court omitted the following paragraph from the instruction: Before you mayreturn a guilty verdict as to any defendant of the crime of conspiracy, you must unanimously agree and find beyond a reasonable doubt, that (1) there was a conspiracy to commit the crime[s] of , and (2) a defendantwillfully, intentionally and knowingly joined with any other or others in the alleged conspiracy. You must also unanimously agree and find beyond a reasonable doubt,that an overt act was committed by one of the conspirators. You are not required to agree as to who committed an overt act, or which overt act was committed, so long as each of you finds beyond a reasonable doubt, that one of the conspirators committed one of the acts alleged in the [information] [indictment] to be overt acts. 234 (CALJIC No.6.22.) The court also failed to give CALJIC No. 6.25 which provides: Defendant{[s] [is] [are] charged [in Count[s] ] with conspiracy to commit the crime of , in violation of Code, § , and the crime of , in violation of Code,§ . In orderto find the defendant(s] guilty of the crime of conspiracy, you must find beyond a reasonable doubtthat the defendant[s] conspired to commit one or moreof the crimes, and you also must unanimously agree as to which particular crime or crimes [he] [they] conspired to commit. If you find the defendant[s] guilty of conspiracy, you will then include a finding on the question as to which alleged crimes you unanimously agree the defendant conspired to commit. A form will be supplied for that purpose [for each defendant]. Although the omitted paragraph of CALJIC No. 6.22 and CALJIC No.6.25 both refer to a charged conspiracy, these instructions should have been given, notwithstanding the fact that the prosecution did not charge conspiracy in this case, because oneof the theories presented by the prosecution was that appellant was culpable for the murders of Maria Moreno, Laura Moreno, and Ambrose Padilla because he wasa party to a conspiracy to murder Dido Moreno,Tito Aguirre, or both. The prosecution’s decision to present multiple theoriesof liability, including conspiracy, required the jury to makecertain foundational findings. To find murder under the conspiracy theory, the jury first had to properly determine that a conspiracy existed to commit a specific offense and to makethat determination unanimously and based upon proof beyond a reasonable doubt. 235 A jury verdict in a criminal case must be unanimous. (Peoplev. Russo, supra, 25 Cal.4th at p. 1132; People v. Collins (1976) 17 Cal.3d 687, 693; see Cal. Const., art. I, §16 [expressly stating that in a civil case a verdict may be rendered by agreementof the three-fourths of the jury, which implies a unanimity requirementin criminal cases].) “Additionally, the jury must agree unanimously the defendantis guilty of a specific crime.” (Russo, at p. 1132, original emphasis; accord People v. Diedrich (1982) 31 Cal.3d 263, 281.) The requirement of unanimityas to the criminal act “is intended to eliminate the danger that the defendantwill be convicted even though there is no single offense whichall the jurors agree the defendant committed.” (Russo, at p. 1132, quoting People v. Sutherland (1993) 17 Cal.App.4th 602, 612.) Lowercourts have held that there need not be unanimousjury agreement on a specific object of the conspiracy so long as the jurors agree that the conspiracy had somecrimeasthe object. (See, e.g., People v. Vargas (2001) 91 Cal.App.4th 506, 558.) But this Court has held that while there need not be unanimous agreement on the overt acts, the jurors must agree on a particular crime. (People v. Russo, supra, 25 Cal.4th at p. 1134.) In the context of conspiracy, this meansthat the jurors must agree on the particular object of the conspiracy because a conspiracy to commit burglary is a different crime from a conspiracy to commit murder or conspiracy to falsely imprison. Each ofthese is a separate crime subjectto different punishment. (See § 182 [‘‘When they conspire to commit any otherfelony, they shall be punishable in the same mannerandto the same extentasis provided for the punishmentofthat felony”].) Without a unanimity requirement and instruction, there is a danger that somejurors will think a defendant wasguilty of one conspiracy and others will think he was guilty 236 of a different one. (People v. Russo, supra, 25 Cal.4th at p. 1135.) Such an instruction “is necessary to minimizethe risk that the jury, generally unversed in the intricacies of criminal law, will ‘indulge in unguided speculation’ whenit applies the law to the evidence adducedattrial.” (People v. Prettyman, supra, 14 Cal.4th at p. 267, quoting People v. Failla (1966) 64 Cal.2d 560, 564.) It makes no difference that in this case no crime of conspiracy was charged. This Court has held that “as long as each juror is convinced - beyond a reasonable doubt that defendantis guilty of murderas that offense is defined bystatute, it need not decide unanimously by which theory heis guilty.” (People v. Santamaria (1994) 8 Cal.4th 903, 918.) That holding applied, however, to the issue of whetherthe jury had to decide unanimously whether the defendant was an aider and abettor. (Ibid. (“More specifically, the jury need not decide unanimously whether defendant was | guilty as the aider and abettor or as the direct perpetrator’’].) Aiding and abetting, which is only a theory of culpability and not a discrete and separate offense, differs fundamentally from conspiracy, which iS a Separate crime and not merely a theory of culpability. In appellant’s case, guilt on the murder charges could have been predicated on a theory dependent on appellant’s guilt of a conspiracy. That meansto sustain the murder convictions, the jury should have been required to find appellant guilty of a conspiracy beyond a reasonable doubt and unanimously. The dueprocessclause of the Fourteenth Amendment“protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which heis charged.” (Jn re Winship, supra, 397 U.S. at p. 364.) That requirement applies not only to every “element,”as that term is formally understood, but also to each of the 237 “facts necessary to establish each of those elements.” (Sullivan v. Louisiana, supra, 508 U.S.at p. 278.) Instructional error relating to the reasonable-doubt requirementvitiates “all the jury’s findings” and constitutes structural error. (/d. at p. 281, original emphasis.) Andstate constitutional law requires that any jury findings must be unanimous. (People v. Collins, supra, 17 Cal.3d at p. 693.) Appellant had a protected due processliberty interest in enforcementofthis state law requirement. (See Hicks v. Oklahoma, supra, 447 U.S.at pp. 346-347.) The omission of the paragraph in CALJIC No. 6.22 andthe failure to give CALJIC No. 6.25 resulted in the absence of any instructions specifying that a finding of conspiracy must be unanimousandbased upon proof beyond a reasonable doubt. Thefailure to give complete and accurate instructions on conspiracy could have resulted in an erroneous determination of guilt on all of the murder counts. That instructional error violated appellant’s state and federal constitutional rights. E. Reversal of the Entire Judgment is Required Instructional error occurs if there is a “reasonable likelihood”that the jury has applied any challenged instruction in a waythat violates the United States Constitution. (Boyde v. California (1990) 494 U.S. 370, 380.) Appellanthas established that the incomplete and confusing jury instructions on conspiracy law violated his federal constitutional rights to trial by jury, a reliable guilt determination and due process. Where the prosecution presents alternative theories of guilt and the general verdict leaves the reviewing court unable to determine whetherthe guilty verdict may have hada properbasis, “the unconstitutionality of any of the theories requires that the conviction beset aside.” (/d. at pp. 379-380.) Reversal is required here where appellant’s murder convictions on Counts 4, 5, and 6 238 mayhave been based on unconstitutional application of the instructions on conspiracy. The conspiracy instructions were incomplete, vague and reasonably susceptible to misunderstanding by the jurors. Extensive empirical research has demonstrated that juries often misapprehend jury instructions. (See, e.g., Hans, Jury Decision Making in Handbook of Psychology and Law (Kagehiro & Laufer, eds. 1992) pp. 56, 67 [“TJury researchers are nearly unanimousin the view that jurors have trouble understanding and following the judge’s legal instructions”]; May, “What Do We Do Now?” Helping Juries Apply the Instructions (1995) 28 Loy.L.A.L.Rev. 869, 872 [“Studies literally abound demonstrating the extent to which jurors misapprehend the relevant law”].) The incomplete and conflicting instructions on uncharged conspiracy made it evenlesslikely in this case that the jurors could apply the instructionsfairly and correctly in order to reach valid murder verdicts. Theinstructions were particularly deficient in failing to require proof beyond a reasonable doubt and unanimity. Thefailure to provide adequate instruction on the reasonable-doubt requirementconstitutes structural error requiring reversal. (Sullivan v. Louisiana, supra, 508 U.S.at p. 281; Carella v. California, supra, 491 U.S.at p. 268 (conc. opn. of Scalia, J.); cf. People v. Marshall (1996) 13 Cal.4th 799, 879 (conc. and dis. opn. ofa Kennard,J.) [trial court’s failure to submit special-circumstance allegation to jury violated jury-trial guarantee; error was therefore structural].) Thus, the failure to provide any instruction that a conspiracy finding must be based on proof beyond a reasonable doubtis reversible perse. Evenunder harmlesserror analysis, reversal of appellant’s convictions and the death judgmentare required. An instruction that omits an element of an offense violates a defendant’s due processright to a jury 239 trial and is subject to the Chapmanfederal constitutional standard of harmless error. (Chapman v. California, supra, 386 U.S. at p. 24; Nederv. United States (1999) 527 U.S. 1, 15; People v. Williams (1997) 16 Cal.4th 635; 689; Evanchyk v. Stewart (9th Cir. 2003) 340 F.3d 933, 940.) Incomplete and confusing instructions constitute harmless error under the Chapmantest only if the People can establish beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. ~ The People cannot meet that burden here where the murder convictions may have depended on conspiracy findings withoutthe jury making valid findings as to the overt acts and objects of the conspiracy and without finding proof beyond a reasonable doubt and unanimously. Indeed, these errors were so fundamental and unfair that even underthe state law standard of People v. Watson (1956) 46 Cal.2d 818, 836,it is “reasonably probable”that a different result would have been reached absenttheerrors. Reversal of appellant’s convictions and the death sentencesare required. // i 240 10 THE TRIAL COURT FAILED TO MAINTAIN THE PROPER JUDICIAL DECORUM BY ADDRESSING AND REFERRING TO THE JURORS, COUNSEL, AND COURT PERSONNEL BY MOCK “GANG MONIKERS” THAT RIDICULED THE DEFENDANTS AND UNDERMINED THE SOLEMNITY OF THE PROCEEDINGS, REQUIRING REVERSAL OF THE ENTIRE JUDGMENT A fair and impartial trial is a fundamental aspect oftheright of accused persons not to be deprived oflife or liberty without due process of law. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 7, subd. (a); see e.g., Tumey v. Ohio (1927) 273 U.S. 510, 523; People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266.) There are many componentsto fair and impartial trial, one of which is the mannerin which the judge conducts the trial. The United States Supreme Court has noted that the judge governs the trial for the purpose of assuring its proper conductand,in doing so,the judge has the responsibility to maintain decorum in keeping with the nature of the proceeding. (United States v. Young (1985) 470 U.S.1, 10-11.) Here,the trial judge made remarks during the course ofthetrial that set an improper tone considering the ultimate determination that the jurors would have to make — a decision as to whether appellant wouldlive ordie. Thetrial judge’s failure to maintain proper decorum inthis case deprived appellantofhis rights to a fair trial and a fair determination of penalty, in violation of the Sixth and Fourteenth Amendments. 241 A. Proceedings Below During the guilt-innocence phaseoftrial, at the conclusion of court proceedings on October 29, 1996, Judge Trammellsaid to the jurors: I have ascertained one thing andthat is that apparently one of you has now acquired a moniker. I am notgoingtotell you whatit is but — because if I wereto tell you whatit is you would know whoit was, but maybe by the time we’re through. all 18 of you will have a monikerthat’s assigned to you out here unbeknownst to you. I’m notsure. (18 RT 2391.) The judge provided no further explanation about what he wastalking about. Several days later, however, on the morning of November6, 1996, Judge Trammell commenced proceedings before the jury by announcing that he would open the record “alittle bit differently.” (23 RT 3014.) Then, referring to the jurors and those present in the courtroom,the judge proceededto identify all of the participants by mock gang “monikers”: Therecord in this instance will reflect that Characteris present with his attorney Comet; Primois present with his . attorney Slippers; the District Attorney is present in the person of Windex; the jury in the person of Incognito, Booky, Ill-Bit, Fidler, Coco, Eagle Scout, Sharpy, Rabbit, Curly, Tree, it’s either V or 6, Sleepy [—] I know whothatis [-] Foxy, Sharper [—] who didn’t makeit to Nordstromsthis morning [—] The Suit, Smiley, Snickers, and Dopeyareall present along with Coach, Racer, Bambi, and Flash. (23 RT 3014-3015.) Judge Trammell then turned to a witness whose testimony was about to resume, and asked: “Do you have a moniker?” (23 RT 3015.) The witness — Stephen Davis, a Los Angeles County deputy sheriff — responded: “No, your Honor.” (23 RT 3015.) The judge then addressed the prosecutor, to whom the judge had given the moniker “Windex,”and made 242 the following joke: “Mr. Monaghan,or I should say Windex, I wantto make surethat the record is clear.” (23 RT 3015.) Playing along with the judge, the prosecutor responded: “Yes, we do, your Honor, we want to make sure the recordis clear.” (23 RT 3015.) Judge Trammell explained his remarks to those in the courtroom, including defense counsel and the defendants, as follows: “[Y]Jou guys probablydon’t know why I wasdoingthis, [but] I got this from the jury this morning signed by each of their monikers and then I found out what your monikers are.” (23 RT 3015.) By “this,” the judge referred to a document, which he said would be marked as “Exhibit 14,391.” (23 RT 3015.) However, whatever the document was,it was not madea part of the record. At the conclusion of Investigator Davis’s testimony, the judge again madereferenceto the jurors’ “gang monikers.” For no apparent reason related to the court proceedings, the judge asked the jurors which one of them was “Dopey.” (23 RT 3102.) He thensaid to the jurors: “I was getting to where I was kind of worried becauseforthefirst two weeks I had never seen people who were expressionless and not responsive to anything. I said something to Flash overhere[like] ‘Werethey still breathing?’ and[I was] concerned because you take 18 people whoaretotal strangers and put them in a little room without coffee and you havereal problems, but I am glad to see that you have conqueredall that and really do have a good sense of-his [sic] humor amongthe collective group of you.” (23 RT 3102.) B. Judge Trammell’s Jokes Mocking the Defendants’ “‘Gang Monikers” Violated the Canons and Standards Governing Judicial Conduct The California Code of Judicial Ethics states, “A judge shall require order and decorum in proceedings before the judge.” In 1998, the Commission on Judicial Performance imposeddiscipline or sent advisory 243 letters to judges of this state on 90 occasions. Over 10 percentof these occasions were prompted by a judge’s inappropriate demeanorand decorum,including inappropriate humor. This category of misconducttied for the most commontype of misconduct. (Cal. Com. on Jud. Performance, AnnualReport (1988) at p. 17.) The American Bar Association has promulgated standards for judicial performance which recognize that a fair trial requires that the judge maintain courtroom decorum by exercising control over the proceedings and those participating in them. (1 ABA Standards for Criminal Justice, $§ 6-1.1, 6-2.3, 6-2.4, 6-3.1, 6-3.2, 6-3.3, 6-3.5 (2d ed. 1980).) These standards define the general responsibility of the trial judge, in pertinent part, as follows: Standard 6-1.1. General responsibility of the trial judge Thetrial judge has the responsibility for safeguarding both the rights of the accused andthe interests of the public in the administration of criminal justice. The adversary nature of the proceedings doesnotrelieve the trial judge of the obligationofraising on his orherinitiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination ofthe trial. The only purposeof a criminaltrial is to determine whetherthe prosecution hasestablished the guilt of the accused as required by law,andthetrial judge should not allow the proceedings to be used for any other purpose. a ABAStandards for Criminal Justice, § 6-1.1.) The Commentaryto this Standard provides the following elaboration on the dutyof the trial judge: This standard recognizesthatit is ultimately the authority and responsibility of the trial judge to maintain the atmosphere appropriate for a fair, rational and civilized determination of the issues and to govern the conductofall personsin the courtroom,including the attorneys. All the 244 standards generally recognize that the judge possessesthe powerand authority to maintain order, and that this function is best performedin the interest of the proper administration of criminal justice when judicial powers are used impartially in a firm and dignified manner. (Id. at pp. 6.6-6.7.) The judge also has the duty to “maintain order”: Standard 6-3.3. General responsibility of the trial judge Thetrial judge has the obligation to use his or her judicial powerto preventdistractions from and disruptions of the trial.... (1 ABAStandardsfor CriminalJustice, § 6-3.3.) Here, Judge Trammell clearly had a duty, when presented with the jury’s note reflecting that the jurors had given themselves mock “gang monikers,” to take steps to preserve an appropriately serious atmosphere in the courtroom. Not only did Judge Trammell abdicate this duty, he indulged and encouraged the jurors’ attempt to poke fun at the defendants. Although humorousor sarcastic remarks do not alwaysrise to the level of misconduct (21 Cal.Jur.3d, Criminal Law, § 2938, pp. 526-528), Judge Trammell’s jokes at the defendants’ expense — particularly in a capital case — were grossly improper. (Peoplev. Melton (1989) 44 Cal.3d 713, 753-754.) As this Court has stated, “Obviously, . . . the court should refrain from joking remarks which the jury mightinterpret as denigratinga particular party or his attorney.” (Jbid.) By addressing the jurors and other court personnel by mock “gang monikers,” the judge waseffectively ridiculing the defendants, each of whom was knownbysimilar nicknames. Judge Trammell’s remarks had the effect of conveying to the jury that he believed the defendants were properly objects of ridicule and derision. “It needs no citation to convince an unbiased observerthat a jury 245 has both ears and eyes open for anylittle word oract ofthe trial judge from which they may gather enoughto read his mind andgethis opinion ofthe merits of the issue under review.” (Sanguinetti v. Moore Dry Dock Co. (1951) 36 Cal.2d 812, 823; People v. Frank (1925) 71 Cal.App. 575, 581.). A capital trial is not a joking matter. Because Judge Trammell injected unnecessary and prejudicial levity into a serious proceedingat which the defendant’s life was at stake, and thereby underminedthejury’s responsibility regarding the gravity of its task, appellant’s convictions and death judgments must be reversed. C. Judge Trammell’s Remarks Violated Appellant’s Rights to a Fair Trial and a Fair and Reliable Penalty Determination Appellant was denied his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the federal Constitution to due process and to be free from the determination of guilt and imposition of the death penalty following a trial that was not conducted with due regard for the gravity of the occasion. | The duty to keep order and to maintain an appropriate judicial atmosphere rests squarely with the trial judge, becauseit is the judge’s responsibility to protect the defendant’s right to procedural due process. (Sheppard v. Maxwell (1966) 384 U.S. 333, 357-364.) Thus, where a defendant wasdenieda fair trial due to the “carnival atmosphere”created by the presenceofthe press, the Supreme Court warned: The court must take such steps by rule andregulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for the defense, the accused, witnesses, court staff nor enforcementofficers coming underthe jurisdiction of the court should be permitted to frustrate its function. 246 (Id. at p. 363.) A criminal defendant, especially one facing a death sentence,is entitled to a trial in a solemn andserious judicial atmosphere to minimize any possibility that he will be deprived of his life on the basis of emotional or extraneous considerations, rather than on the facts and evidence. As the SupremeCourtstated in Estes v. Texas (1965) 381 U.S. 532: The Court proceedingsare held for the solemn purpose of endeavoring to ascertain the truth whichis the sine qua non of a fair trial. Over the centuries Anglo-American courts have devised careful safeguards by rule and otherwiseto protect and facilitate the performanceof this high function.... We have alwaysheld that the atmosphereessentialto the preservation of a fair trial — the most fundamentalof all freedoms — must be maintained at all costs. Our approachhas been through rules, contempt proceedings and reversal of convictions obtained under unfair conditions. (Id. at p. 541.) | “{T]he penalty of death is qualitatively different from a sentence of imprisonment, howeverlong.... Becauseof that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishmentin a specific case.” (Woodsonv. North Carolina (1976) 428 U.S. 280, 304-305; Johnsonv. Mississippi (1988) 486 U.S. 578, 584.) A trial judge whorepeatedly injects humoror sarcasm into the proceedings effectively underminesthe proper decorum of a death-penalty case. D. Defense Counsel’s Failure to Object Did Not Waive the Court’s Error The fact that trial counsel did not object to any of these comments does notbar appellate review of this issue. Issues relating to the bias of a trial judge have been found cognizable on appeal notwithstanding the lack 247 of an objection in the trial court. (See Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 244.) As commentators have observed,the rule that an appellate court will not consider points notraised at trial does not apply to “(a] matter involving the public interest or the due administration of justice.” (9 Witkin, Cal.Procedure (3d ed. 1985), Appeal, § 315, p. 326.) This is an issue involving the due administration ofjustice. Further, misconduct can be raised on appeal even absent an objection at trial if the misconductis such that an objection and admonition to the jury to disregard the improper matter would have provedfruitless. (Peoplev. Malone (1988) 47 Cal.3d 1, 36-37.) This case presents an unusually clear illustration of this principle. Because the judge was the source of the objectionable misconduct, there was no oneto object to. Moreover, defense counsel could not reasonably be expected to object where an objection would have only incurred the wrath and antipathy of the jurors, who had chosen their own gang monikers and may have been entertained by Judge Trammell’s levity. | E. Reversal of the Entire Judgment is Required Measuringthe precise impact of remarks and jokes that disparaged the defendant and undermined the solemnity of the proceedingsis a difficult, if not impossible, task. Judicial misconductis of such import that appellate courts have departed from the general rule that an appellant must make an affirmative showing of prejudice when the appearance of unfairness colors the trial record. In such a case, the test is whether the court’s comments would cause a reasonable person to lack confidence in the fairness of the proceedings. (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 461.) 248 Thattest is satisfied in this case. Judge Trammell did not simply make inappropriate humorous remarks; he madejokes that held appellant up to the jury as an object of ridicule and derision. (See People v. Harmon (1992) 7 Cal.App.4th 845, citing 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989), § 2891, p. 3530.) . Similarly, in determining whethera constitutional error is reversible underthe federal constitution, the Supreme Court has distinguished between “trial errors,” which are subject to prejudice analysis, and “structural ’ errors,” which require automatic reversal. (Arizona v. Fulminante (1991) 499 U.S. 279, 306-310.) In Fulminante, supra, the Court describedtrial errors as those that occur “during the presentation ofthe case to the jury, and which maytherefore be quantitatively assessed in the context of other evidencepresented in order to determine whether[the error] was harmless beyonda reasonable doubt.” (/d. at pp. 307-308.) In contrast,“structural errors” are “structural defects in the constitution of the trial mechanism . . . affecting the framework within whichthetrial proceeds, rather than simply anerrorin thetrial process itself.” (Arizona v. Fulminante, supra, 499 U.S.at pp. 309-310.) A paradigmatic example of a “structural error” is a biased judge. (Ibid.) In the absence of such a basic protection, a “‘criminaltrial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no-criminal punishment may be regarded as fundamentally fair.’” (Jd.at p. 310, quoting Rose v. Clark (1986) 478 U.S. 570, 577-578.) Structural eee errors are reversible per se because their effect cannot be “‘quantitatively assessed’ by comparison to other evidence admitted at trial.” (Peoplev. Flood (1998) 18 Cal.4th 470, 510, quoting Arizona v. Fulminante, supra, 499 U.S. at pp. 307-308) (conc.opn. of Werdegar,J.).) 249 Evenif not structural error, reversal of the entire judgmentis required because the People cannot establish that this federal constitutional error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S.at p. 24.) “The courtroom is not a circus;the trial judge owes a duty to see that proper demeanoris maintained.” (People v. Polite (1965) 236 Cal.App.2d 85, 92.) Here, Judge Trammellfailed in this duty; reversal of the entire judgmentis required. // // 250 11 THE TRIAL COURT’S RESPONSE TO THE JURY’S ANNOUNCEMENTTHATIT HAD REACHED AN “IMPASSE”IN ITS GUILT-PHASE DELIBERATIONS VIOLATED APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS A. Introduction Onthe sixth day of guilt-phase deliberations, the jury sent thetrial court a note advising that it was at an “impasse’ > and wasunable to reach a verdict as5 to any count. (33 RT 3789; VI CT 1696, 1698.) In response, the trial court summonedthe foreperson andthe jurors into court and inquired whether any further re-reading of testimonyor“additionaljury instructions” would assist them in reaching a verdict. (33 RT 3793-3794.) The jurors indicated that no additional read back of testimonyorclarification of instructions would assist them in reaching a verdict. (33 RT 3793-3794.) Further, the foreperson informedthe court outside the presenceof the other jurors that he believedall of the jurors had “deliberated in goodfaith.” (33 RT 3795.) Rather than respect the jury’s statement of deadlock, however, the court insisted that the jury continue to deliberate. Thetrial court’s response to the jury’s deadlock violated appellant’s state and federal constitutional rights, including his rights to due process, to a jury trial, to a fair adversarial proceeding, and to an independently determined unanimous verdict. (U.S. Const., 6th, 8th, and 14th Amends.; Cal.Const., art. I, §§ 1, 7, 15, 16.) The court’s responseto the jury’s note also violated appellant’s state constitutional right to a unanimousverdict, which includesthe right to an independent and impartial decision of each juror. (Cal. Const., art. I § 16.) Because the court’s actions andinstruction deprived appellant ofhis state-created liberty interest, appellant’s due 251 processright under the Fourteenth Ameridment wassimilarly violated. (Hicks v. Oklahoma, supra, 447 U.S. at p. 346.) Reversal ofthe entire judgmentis therefore required. B. Proceedings Below The jury began deliberating at 9:15 a.m. on November18, 1996. (VI CT 1685.) The jury deliberated approximately two hours and 10 minutes before breaking for lunch. (VI CT 1685.) The jury requested a readback of Witness Number9’s testimony andof testimony related to telephone records. (VI CT 1683, 1685; 30 RT 3713-3715, 3719-3720, 3723-3724.) A juror was involvedin a traffic accident overthe lunch recess so no further deliberations were conducted that afternoon. (30 RT 3712-3713, 3721- 3722.) Jury deliberations resumed on November19, 1996, at 9:05 a.m. (VI CT 1688.) From 10:10 a.m. to 10:55 a.m., the court reporter read the testimony of Eileen Hilburn’s and Witness Number9 to the jury. (VI CT 1688.) The jury.submitted two notes to the court: a request for a readback of the testimony of Elizabeth Torres (VI CT 1686), and a request to view a videotape of a Mexican Mafia meeting twice. (VI CT 1687.) From 1:55 p.m.until 2:35 p.m., the court reporter read the testimony of Elizabeth Torres to the jury. (31 RT 3755.) The jury then resumed deliberations from 2:50 p.m. to 4:00 p.m., before adjourning for the day. (VI CT 1688.) Jury deliberations resumed on November20, 1996, at 9:00 a.m. (VI CT 1691.) The jury submitted two more notes to the court: a request for a readback of a portion of Dale Higashi’s testimony (VI CT 1689), and a request for readback of the testimony of Witness Number 14 and David Hooker. (VI CT 1690.) At 2:30 p.m., the jury viewed videotape of the Mexican Mafia meeting. (VI CT 1691.) From 3:00 p.m. until 3:40 p.m., 252 the court reporter read backthe testimony of Dale Higashi, Witness Number 14, and Daniel Hooker. (VI CT 1691; 32 RT 3760, 3763.) At 4:00 p.m., the jury was released for the day. (VI CT 1691.) Jury deliberations resumed on November21, 1996, at 9:00 a.m. (VI CT 1693.) The jury requested a readback of a portion of the testimony of Witness Number16 and of Stephen Davis. (VI CT 1692.) At 3:30 p.m., the jury was released for the day. (VI CT 1693.) Jury deliberations resumed on November 22, 1996, at 10:15 a.m. (VI CT 1695.) The jury requested a readback of testimony of Witness Number16 and of Stephen Davis. (VI CT 1694.) The court reporter read back requested testimony three times that day: from 10:52 to 11:35 a.m., from 2:05 to 2:50 p.m., and from 3:00 to 3:30 p.m. (VI CT 1695.) Jury deliberations resumed on November25, 1996 at 9:45 a.m. (VI CT 1698.) The jury deliberated between 9:45 and 10:47 a.m., 11:07 a.m. and 12:00 p.m., and 1:30 and 2:00 p.m. (VICT 1698.) At 2 p.m., the jury sent out a note stating: “We are at an impasse. ... We cannot cometo a unanimousdecision on any count.” (33 RT 3789; VI CT 1696, 1698.) The defense movedfor a mistrial on the groundsthat the jurors had been deliberating for more than five days and had already requested readback of a great dealoftrial testimony. (33 RT 3789-3791.) Thetrial court stated it was“reluctant to do that,” and proposed bringing the jurors into the courtroom to inquire “whetheror not there is anything that can be done by the way of re-read of additional testimony or testimonythat’s already been read once or any additional instructions” and then to inquire specifically of the foreperson, outside the presence of the other jurors, whether “everyone is deliberating .. . in a good faith attempt to reach a verdict.” (33 RT 3790.) Counsel for appellant objected and argued that there was no reasonto “put 253 any of the [jurors] on the spot.” (33 RT 3791.) Counsel for co-defendant Palmaargued further that in the absence of someindication from the jury that there was “any reluctance on [the part of] any memberof the jury to deliberate,” the court’s proposed inquiry would improperly “invad[e] the purview ofthe jury.” (33 RT 3791.) | The court overruled the defense objections,stating: WhatI wantto do is [— ] I don’t think there’s anything wrong with myinquiries,that is, in fact, verifying from the foreperson andthe jury as a wholethat they feel they’re at an impasse, finding out whetheror not there’s anything that can be doneto assist them, and assuming that I get no responses from that, asking the foreperson to remain to inquire with respect to good faith deliberations. (33 RT 3792.) Whenthe jurors were broughtinto the courtroom,the trial court asked the forepersonif “anything can be donethat I can do by a re-reading of any testimony including that which has already been re-read or by any jury instructionsto clarify any legal point if that is necessary?” (33 RT 3793.) The foreperson responded “no.” (33 RT 3793.) The judge then addressed the same question to the remaining eleven jurors. (33 RT 3793- 3794.) No juror responded. (33 RT 3794.) The judge then hadall of the jurors, except the foreperson, leave the courtroom, and asked the forepersonif any of the other 11 jurors were not “deliberating in a good faith attemptto reach a verdict.” (33 RT 3794.) The foreperson responded: “J think we haveall deliberated in good faith.” (33 RT 3795.) After this inquiry, the defense renewed the motion for mistrial. (33 RT 3796.) Thetrial court denied the motion and instead determinedthatit would orderthe jurors to continue deliberating. (33 RT 3796.) The jurors 254 were brought back into the courtroom andthetrial court instructed them as follows: I don’t know how you are divided numerically and... it is not my place atthis pointto be inquiring. I am going to assumeonly becausestatistical probabilities favors [sic] my assumption that you are not deadlocked6-6,that it’s some other numerical division. I am notat this time going to stop this trial or declare a mistrial. I am ordering you to continue with your deliberations. I am not convinced that you have put in enough time, especially when I had been told the amount of time that has been utilized in rereads. And I am not minimizing those rereads. As a matter of fact, in this case I think it’s probably very important. But it would appear we lost a half day last Mondayand I understand there were two substantial days last week, Tuesday and Wednesday,in which most of the day was consumedin read back anda fair portion of this morning. I say this to you: Those of you in the minority, if I am right that it is not just 6-6, I ask that you listen to the arguments of those in the majority, reweigh your positions, and I also ask that you, those of you in the minority, continue to argue the positions that you believe to convince those in the majority. And say the same thing to the majority. I ask that you reweigh yourpositionsin the lightof all the arguments to see whether or not those of you in the majority still feel the way you have voted and, at the same time, ask that you, each of you as a part — the deliberation process is not only listening to others with an open mind toward reevaluation,if you believeit’s appropriate, but it’s also taking an active part in sharing what you feel and how youfeel and perhaps how you arrive at your feelings. And I say to both the majority and the minority that that’s what deliberations are and I ask that both —I don’t wantto call it sides because then all of a suddenit becomes confrontational and it shouldn’t be that way. At the sametime, I would say this to you[:] this is not a labor negotiation. In a labor negotiation we always know when the baseball players go onstrike there’s going to come a 255 time when somebodyis going to have pressure and they’re going to yield, economic pressure. There’s obviously no economic pressure here. You’re all well paid. But I want to emphasize that this is not a matter of compromise. One should not compromisejust for the purpose of reaching a verdict. But, at the sametime, I expect from each oneof you, weall expect that you are going to in good faith be engaging in the deliberation process, sharing your viewsof the evidence, and how yougotthere with the others with a mind toward convincing them of your position and that’s whether you’re in the minority or the majority, and then the opposite that you have an open mind,each of you, whicheverside you’re on, to reevaluating. Atthis time I order that you return to the jury deliberation room, continue your deliberations. If at any time — and I don’t want anybodyto be hesitant about asking even if you hadit read onceto haveit re-read a second time the testimony or any clarification what you feel is necessary to any points of law. If you’ll continue your deliberations.“ (33 RT 3798-3799.) At 2:15 p.m., the court ordered the jury to continueits deliberations. (33 RT 3797-3799; VI CT 1698.) The court denieda second defense | motion for mistrial on the ground that instructing the jury to continue deliberating “invaded the purview ofthe jury.” (33 RT 3800.) Jury deliberations resumed on November 26, 1996, at 9:10 a.m., jury deliberations resumed for the seventh day. (VI CT 1701.) The jury sent out a note asking if a finding of guilt required that the defendantbe an actual shooter as opposed to a conspirator, and asked for an explanation/definition of hearsay and whenit could be considered as evidence. (VI CT 1699, | 1701.) On November27, 1996, the court and counsel reviewed the jury’s . request for explanations that had been sent out the previous day. (34 RT 256 3801-3809; VI CT 1702.) Over defense objections,the trial court responded to the jury’s questions. (34 RT 3809, 3812-3814.) At 9:45 a.m., jury deliberations resumed for the eighth day. (VI CT 1702.) At 10:40 a.m. on November27, 1996, Juror No. 128 sent a note to the court saying that she was “struggling” to decide whether she was “incapable of reaching a rational decision based on myfear of the sentence that I may have to impose,” and that she feared she “may not or could not have beentotally objective” in her “interpretation of the evidence.” (34 RT 3819-3820.) In response,the trial court decided to summon Juror No. 128 and to “go back through the Hovey questions with her” outside the presence of the other jurors. (34 RT 3820.) Juror No. 128 was duly questioned by the trial court. In responseto that questioning, Juror No. 128 indicated that she would not always vote to impose the death penalty, but did not think she “could vote for the death penalty.” (34 RT 3828.) The judge then asked her whetherher reluctance to sentence the defendant to death would causeherto refuse to find him guilty of first degree murder or refuse to find the special circumstance of multiple murdertrue, even if she was convinced beyond a reasonable doubt that he was guilty and/orthat the special circumstance wastrue. (34 RT 3829.) This colloquy between the juror and the court followed: JUROR NO.128: Well, this is where I’m wrestling. THE COURT:That’s why I put it last. JUROR NO.128: Yeah. I honestly amnot sure what’s happening in my mind andI thinkthat it’s preventing me from being able to make my judgment. So I guess my answer would be yes — THE COURT:Allright. JUROR NO. 128: — that it’s preventing me — 257 THE COURT:Let me — so instead of being general, you’re then saying specifically in this case, knowing that if you find someone guilty and the special circumstanceto be true that you’re then going to be facing it that you’re finding, even thoughI tell you you can’t considerit — JURORNO.128: Right. THE COURT: —as a humanbeing you’re finding that it is in your mind and that you feel thatit’s affecting your objectivity on the guilt phase? And I don’t wantto put words in your mouth. JUROR NO. 128: No, that’s exactly right. (34 RT 3829-3830.) Counsel for each of the defendants then questioned Juror No.128. Counsel for co-defendant Palma asked her whether, notwithstanding her professed inability to vote for the death penalty, she could “still go on in the case as a juror deliberating the guilt phase of this case and be honest, be fair, be impartial, and engage yourother jurors in terms of discussion of the evidence of the case?” She responded: “I’vetried[,] and no. That’s why I wrote the letter.” (34 RT 3837.) . Subsequently, counsel for appellant moved for a mistrial on the groundthat Juror No. 128 had been death-qualified priorto trial and that her feelings about her ability to impose the death penalty in this case had changed only becausethe presentation of the evidenceat trial “persuaded [her] to really took at the death penalty, to really look at this case andall the ramifications of what this case means... .” (34 RT 3838-3839.) Thetrial court denied a mistrial; instead, the court made a “formal finding of juror misconduct”and excused Juror No. 128 from the jury. (34 RT 3840-3841.) An alternate juror, Juror No. 125, was selected at random to replaceJuror No. 128. (VI CT 1702.) 258 On December2, 1996,the trial court instructed the jury to begin deliberations anew. (35 RT 3848.) On December4, 1996, after two days of deliberation, the jury returned verdicts finding appellant guilty onall counts, and finding the special circumstance and the other enhancement allegations true. (VI CT 1825-1834.) C. Applicable Legal Principles _ Penal Code section 1140 requiresthe trial court to discharge the jury without reaching a verdict where both parties consent or where “at the expiration of such time as the court may deem proper,it satisfactorily appearsthat there is no reasonable probability that the jury can agree.” The trial court’s authority under this section “is not an absolute, uncontrolled discretionary power. It must be exercised in accordance with established legal rules and a soundlegaldiscretion in the application of such rules to the facts and circumstances of each particular case... .” (Paulson v. . Superior Court (1962) 58 Cal.2d 1, 6, quoting Ex parte McLaughlin (1871) 41 Cal. 211, 216.) This Court has held that before a court discharges a jury because there is no reasonable probability that it can reach a verdict, the trial court should first question the jurors individually as to whether such probability exists. (Paulson v. Superior Court, supra, 58 Cal.2d at 7.) Specifically, the trial court should “obtain from the jurors an expression of their judgment.. . [and], in the exercise of the discretion committedtoit, . . . give such weight to this opinion as the surrounding circumstances seem to demand.” (Jbid.) In the eventthat the trial court decidesto instruct the jury to continue deliberating, the court must be careful to exercise its power “without coercion of the jury, so as to avoid displacing the jury’s independent judgment‘in favor of considerations of compromise and expediency.” 259 (People v. Rodriguez (1986) 42 Cal.3d 730,.775; see also People v. Rojas (1975) 15 Cal.3d 540, 546; People v. Carter (1968) 68 Cal.2d 810, 817.) Jury coercion can exist, even where the messageto the jury is not that it must return a particular verdict, but rather that the trial court expects a verdict, one way or another. (People v. Carter, supra, 68 Cal.2d at 817 (“It is clear .. . that coercion of the jury can occur absent any intimation, express or implied, that the court favors a particular verdict.”’].) “Reversible error may be found in excessive pressure upon the jury ‘to reach a verdict, whateverits nature, rather than no verdictat all.’ ” (People v. Gainer (1977) 19 Cal.3d 835, 848, quoting People v. Carter, supra, 68 Cal.2dat 817.) The relevant inquiry is notas to thetrial judge’s subjective intent in insisting on further deliberations, but rather what a reasonable juror could understand from the judge’s refusal to accept the jurors’ unanimous statementof deadlock. (Francis v. Franklin, supra, 471 U.S. 307. at p. 315; People v. Crossland (1960) 182 Cal.App.2d 117, 119 [although “the able and experiencedtrial judge did not intend such coercion, . . . our concern must be whatthe jury of laymen may have understood him to mean’’].) Coercive supplemental jury instructions to a divided jury are not simply a violation of state law; they mayalso violate the due process clause and the right to a fair trial under the United States Constitution. (See Jiminez v. Myers (9th Cir. 1993) 40 F.3d 976, 979-980 [whether the comments and conductofthe state trial judge infringed defendant's due processright to an impartial jury and fair trial turns upon whether“thetrial judge's inquiry would be likely to coerce certain jurors into relinquishing their views in favor of reaching a unanimousdecision”; see also Lowenfield v. Phelps (1988) 484 U.S. 231, 241 [“[a]ny criminal defendant ... being tried by a jury is entitled to the uncoerced verdict of that body’’].) 260 Aninstruction that obligates the jurors to convince one anotherthat one position is superior to another without reminding them notto relinquish their own beliefs is coercive and unconstitutional in that it deprives the defendantofhis right to the individual determination from each juror. (United States v. Mason (9th Cir. 1981) 658 F.2d 1263, 1268 [“[ilf cases grappling with Allen have a commonthread,it is this: the integrity of individual consciencein the jury deliberation process must not be compromised”].) Such individual judgmentis guaranteed by the Eighth and FourteenthAmendments to the United States Constitution and state law to _ assure a reliable determination of penalty. D. The Trial Court Abused Its Discretion in Refusing to Grant a Mistrial When the Jurors Unanimously Reported That They Were Hopelessly Deadlocked After More Than 16 Hours of Deliberation In this case,the trial court respondedto the jury’s declaration thatit - had reached an impasse by conducting an inquiry to determine whether there was a reasonable probability that the jury could reach a verdict. The clear and resounding “expression of the judgment”ofthe jurors wasthat there was nothing thatthe trial court could do,either by re-reading testimony orbyclarifying any legal instruction,to aid them in reaching a verdict. (33 RT 3793-3794.) Further, the foreperson affirmed that he believedthat all the jurors had been deliberating in good faith. (33 RT 3795.) Evenso, thetrial court disregarded the jurors’ representations and ordered them to continue deliberating. Moreover, the “surrounding circumstances” demandedthatthe trial court give controlling weight to the jurors’ unanimous judgmentthat further deliberations would beeither futile or counterproductive. Whenthe jurors informedthetrial court that they had reached an impasse, they had already 261 deliberated for approximately 16/2 hours over the course of a six-day period of time.** It was clear at that point, after lengthy deliberations and extensive rereading of testimony, that the jurors — who werein the best position to determine whether they had reached the point where further deliberations were not appropriate — had cometo the honest and thoughtful judgmentthat a unanimousverdict could not be reached. The jurors presumably expectedthetrial court to honorthat judgment and to discharge them. Instead, the court disregarded the “expression of the judgment” of _the jurors and ordered them to continue deliberating. Thetrial court’s sole basis for ordering the jury to deliberate further wasthat it did not believe the jury had “put in enough time... .” (33 RT 3796-3797.) That was an improperbasis upon whichto order further deliberations because “[s]tanding alone, the period of deliberationsis not determinative; the judge must makehis assessment of reasonable | probability of the jury reaching a verdict on a numberoffactors, of which the period of deliberation is just one.” (People v. Caradine (1965) 235 83 According to appellant’s calculations, the record indicates that the jurors deliberated for approximately 2 hours and 10 minutes (from 9:15 to 10:30 a.m., and from 10:55 to 11:50 a.m.) on November 18th (VI CT 1685); 3 hours and 20 minutes (from 9:05 to 10:10 a.m., from 10:55 to 11:40 a.m., from 1:30 to 1:55 p.m., and from 2:50 to 4:00 p.m.) on November 19th (VI CT 1688); 4 hours (from 9 to 10:30 a.m., from 10:50 a.m. to 12:00 p.m., from 1:30 to 2:30 p.m., and from 3:40 to 4:00 p.m.) on November20th (VI CT 1691); 4 hours and 40 minutes (from 9:00 to 10:30 a.m., from 10:50 a.m. to 12:00 p.m., and from 1:30 to 3:30 p.m.) on November 21st (VI CT 1693); and 2 hours and 25 minutes (from 9:45 to 10:47 a.m., from 11:07 a.m. to 12:00 p.m., and from 1:30 to 2:00 p.m.) on November 25th (VI CT 1698). The total time spentin deliberations equals 16 hours and 35 minutes. 262 Cal.App.2d 45, 50.) Because thetrial court based its decision entirely upon this one factor, its ruling was an abuseofdiscretion. In sum,this is a case where the record indicates, without any evidenceto the contrary, that (1) the jury had deliberated in good faith on the matter and had extensively reviewed the evidence;(2) the jury had no questions concerningthe applicable law; and(3) there was nothingthetrial court could do to aid the jury in reaching a verdict. (33 RT 3793-3794.) Considering all the circumstances, the unanimousdeclaration of all the jurorsthat they could not reach a verdict andthat further deliberations would befutile or counterproductive were controlling and necessitated a mistrial. (See, e.g., People v. Rojas, supra, 15 Cal.3d at p. 546[trial court properly declared mistrial after five-and-one-half hours of deliberations, where forepersonstated that she did not feel further deliberations would be of value,trial court asked if anybody on the jury thoughtso, and various jury members shook their heads negatively]; People v. Sullivan (1950) 101 Cal.App.2d 322, 327-328 [proper to declare mistrial after five hours of deliberation where 11 jurors said that they did not think they could arrive at a verdict if sent back for further deliberations and foreperson said shefelt to. the contrary].) E. The Trial Court’s Supplemental Instruction to the Jury WasImproper Becauseit Encouraged the Jurors to Consider the Numerical Division In People v. Gainer, supra, 19 Cal.3d 835, this Court held that “it is error fora trial court to give an instruction whicheither (1) encourages jurors to consider the numerical division or preponderance of opinion on the jury in forming or reexamining their views on the issues before them; or (2) states or impliesthat if the jury fails to agree the case will necessarily be retried.” (Jd. at p. 852.) The Court explained that instructing minority 263 | jurors to reconsidertheir position is erroneousfor two reasons.First,it “directs the jurors to include an extraneousfactor in their deliberations,i.e., the position of the majority of jurors at the moment.” (Jd.at p. 848.) Second, it places “excessive pressure on the dissenting jurors to acquiesce in a verdict,” and thereby threatensthe right to jury unanimity. (/d.at p. 850.) Moreover, “[s]ince recognition of the existence of a majority or minority faction on the jury is irrelevantto the issue of guilt, suchreference is erroneous, even if contained in an arguably noncoercive, ‘balanced’ .. . charge which explicitly admonishes the majority as well as the minority to reconsider their views.” (Id. at p. 850, fn. 12.) The Supreme Court has long condemnedthepractice of inquiring of a jury unable to reach a verdict the extent of its numerical division, “evenif a responseindicating the vote in favor of or against conviction wasneither soughtnor obtained.” (See Brasfield v. United States (1926) 272 US. 448, 449, citing and discussing Burton v. United States (1905) 196 U.S. 283, 308.) In Brasfield, the Court said: We deemit essential to the fair and impartial conduct of the trial that the inquiry itselfshould be regarded as groundfor reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a dividedjury will often dépend upon circumstances which cannotproperly be knownto the trialjudge or to the appellate courts and may vary widely in different situations, but in generalits tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence uponthe jury, from whose deliberations every consideration other than that of the evidence and thelaw as expoundedin a propercharge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned. (Ud. at pp. 449-450,italics added.) 264 In this case, although the trial court disclaimed any intent to inquire of the numerical division of the jury, the court advised the jurorsthat it “assume[d]” they were “not deadlocked 6-6, thatit’s some other numerical division.” (33 RT 3798.) Then, after assumingthat the jury wassplit between a “majority” anda “minority,”the trial court addressedits instructions to each side. (33 RT 3798.) If inquiry into numerical division “itself should be regarded as grounds forreversal” — even in circumstances where “a responseindicating the vote in favor or against the conviction was neither sought nor obtained” — then thetrial court’s statement to the jurors here that it ““assume[d]” they were numerically divided into a “majority” and a “minority” had precisely the same effect. Regardless of how the question of “numerical division”is brought up,its effect is to inject “an improper influence” uponthe jury’s deliberations. Moreover, as with an inquiry into the jury’s numerical division,the trial court’s instruction to the jury here “served no useful purpose”that could not be obtained by instructions that madeno reference to how the jury might be divided. Thus,if the trial court’s intent was merely.to encourage the jurors to listen to each other, to reweigh their positionsin light of the views expressed by other jurors, and to continue their deliberations in good faith, the court could have instructed the jury to that effect without making any statements or assumptions about how the possible numerical division of the jury. . Although the People may argue that the charge wasproper because the judge never singled out either the minority or the majority,it is from the position of a minority jurorthat a suspect charge is analyzed. (See United States v. Burgos (4th Cir, 1995) 55 F.3d 933, 940 [“[Minority jurors] ‘always knowtheir minority status, and if fearfully inclined, may presumably 265 suspect a disgruntled judge can find them out.”(citation and internal quotation marks omitted).].) Moreover, the trial court’s instructions addressed to the “minority” and the “majority” were different in a significant way. Thetrial court instructed the jurors “in the minority”to “listen to the arguments of those in the majority” and to “reweigh [their] positions.” (33 RT 3798.) However, with respect to the jurors “in the majority” the judge instructed them only to “reweigh yourpositions in the light of all the arguments to see whetheror not you in the majority still feel the way that you have voted.” (33 RT 3798.) In other words, the “minority” jurors were explicitly instructed to listen to the majority jurors and reweigh their positions in light of the majority jurors’ views; the “majority” jurors were only instructed to reweightheir positions in “light of all the arguments” to confirm whether they would adhereto their positions. F. Reversal of the Entire Judgment is Required Thetrial court’s order to the jury to deliberate further, in the face of the jurors’ unanimousdeclaration of deadlock, simply put undue pressure on the jurors to return a unanimousverdict and undermined“the requirement of independently achieved jury unanimity.” (People v. Gainer, supra, 19 Cal.3d at p. 849.) That pressure was undoubtedly experienced mostdirectly by any “holdout”juror. In light of the nature of the crimes with which appellant was charged, the viewsof the jurors voting for conviction were undoubtedly emotionally charged. Undersuch circumstances, a “holdout”juror is likely to have faced extremepressure, even openhostility, from other jurors. The pressure exerted upon such a juror to change his or her view would likely become unbearable underthe added weightof the trial judge’s order that the jury continue to deliberate despite its declaration that it had reached an impasse after 16 hours of good- 266 faith deliberations. A minority juror “could hardly escape reasoning that the Judge wasnotlikely to believe that [s]he could persuade the opposing eleven to adopt[her] position . . . and that [s]he, individually, was being urged by the judge to reconsider [her] vote.” (United States v. Sae-Chua (9th Cir. 1984) 725 F.2d 530, 532.) Here, after the trial court ordered the jury to continue deliberating, the jury deliberated for an additional day before Juror No. 128 wrote to the trial judge indicating that she was “struggling” with the question of whether she could be “totally objective” in her assessment of the evidence. (34 RT 3819-3820.) Thus,it is apparentthat the trial court’s order directing the jurors to continuetheir deliberations, even though they had reached an impasse after 162 hours of “good faith” deliberations, prompted Juror No. 128 to question her own objectivity. In short, while the court’s order did not have the effect of coercing Juror No. 128 to changehervote,it did effectively compel herto take steps that led to her disqualification as a juror. The practical consequenceto appellant, however, was the sameasif Juror No. 128 had been compelled to change hervote. Thus, reversal of the entire judgmentis required becauseofthe risk that appellant was deprived of “the requirement of independently achieved jury unanimity.” (People v. Gainer, supra, 19 Cal.3d at p. 849.) | H/ . If - 267 12 THE TRIAL COURT COMMITTED REVERSIBLE | ERROR, AND VIOLATED APPELLANT’SSIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS TO A FAIR AND IMPARTIAL JURY, RELIABLE PENALTY DETERMINATION AND DUE PROCESS, BY PROHIBITING ANY MENTION DURING VOIR DIRE OF THE NUMBEROF VICTIMS OR THE FACT THAT THERE WERE CHILD VICTIMS Thetrial court refused to question prospective jurors, or to allow defense counsel to question them, concerning their views aboutthe fact that the case involved multiple victims, two of whom were children, even thoughthe court recognized that these two circumstances of the offense were likely to be the mostsalient and potentially dispositive considerations in the jury’s determination of penalty. By foreclosing the defense from probing into the prospective jurors’ attitudes about whether the age and numberof victims would preventor substantially impair them in performing their duties as jurors, the court violated appellant’s state and federal constitutional rights to a fair and impartial jury, a reliable penalty determination, and dueprocessof law, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, andarticle 1, sections 7, 15, 16, and 17 of the California Constitution. A. Proceedings Below Onseveral occasionsprior to the commencementoftrial, the trial court and the parties discussed whether the prospective jurors would be informedthat the case involved the murderof five victims, including two young children. On each occasion, the trial court made clear thatit disapprovedofletting the jurors know anything aboutthe case other than 268 the fact that it was a capital murder, and involved a special-circumstance allegation of “multiple murder.” Thefirst time the subject arose, the judge advised the attorneys that he disapproved of questioning prospective jurors during the death- qualification process about whether they would or would notbe inclined to impose the death penalty if certain facts were established. Asthe judge explained: [O]ne of the problemsI haveis in trying to death qualify a jury is that the lawyers on both sidesofthe issue wantto try to get a juror to commit themselves that they would or they would not impose the death penalty on a certain set of hypothetical facts. And usually try to bring them to where they have meaning becausethey’re a part of the case and, therefore, you’re getting a prejudging of what a juror would do. I think that’s improper. To that extent, I — my inclination . . . is to not actually other than telling the jury that it is a, quote, murdercase, whateverthat means, andthat the — tell them what the [special] circumstance is, multiple murder, I assume that’s the only one. ... [And] to not get into the specifics at all. I’ve had multiple murders before and oneofthe things, of course, the lawyers wantto see if where — there’s a dividing line at some point where even the most hardened juror whodisfavors the death penalty is going to say there comesa point where. factually they would notvote the death penalty but, otherwise, they wouldn’t. It seems to methat telling the jury that there are five charges when we’re death qualifying really gets them into applying those charges as to whether or not they would in this case. I mean,it’s one thing in my mind to have two murders. It’s another thing to have five. ... 269 Myinclination is to notlet the jury know how many murder charges there are until we actually have a jury picked. And the same being with respect to I think mostjurors would view, shouldn’t, but they would view the killing of an adult a lot differently than they would the killing of a child. Even in this case I think we have a six-month-old or nine- month-old baby... . I don’t think that that’s something the jurors should be told with respect to the factual backgroundin this case. (3 RT 691-693.) At the next pretrial proceeding, appellant’s counsel askedthetrial court to reconsiderits stance against informing theprospective jurors about the numberof victims and the fact that two of the victims were young children. (4 RT 749.) Counselsaid he understood thatthe trial court had previously indicated that it would give the prospective jurors a “seneral factual overview”of the case, but intended to limit its overview to “just that this was a death penalty case.” (4 RT 749.) However, counsel asked the court to also includein its “overview” of the case “a statementin there that the numbers of people whoare dead, the sexes of the people who are dead and also the ages of them becauseI think the jury knowing that would have a substantial impact on how they answerthose three questions.” (4 RT 749.) The judge responded: Oh, absolutely, I agree with you, and that’s why unless the three of you agree, I would not allow that. The special circumstances[sic] here is multiple murder. In the instant case is of [sic] the defendant has been convicted of one count of first degree murder and a second countofeither first or second degree murder. You go any further beyond that you are getting from the jury [--] you’re asking them to prejudge the facts. Absolutely the fact that a six-month-old baby was 270 executed, if that’s what it was, I don’t know. Maybeit got in the way of a bunch of wild shots, but that’s a fact and you’re starting to give them someofthe factors in aggravation. (4 RT 749-750.) Thus,the trial court indicated that it would only grant appellant’s requestif the prosecutor concurredin that request. (4 RT 750-751.) Otherwise, the court said, “the default is it won’t be done. I won’t even read the charges. I [will] merely indicate that it is a charge in a case involving murder charges, period, and that’s it.” (4 RT 751.) At the next court proceeding, the prospective jurors were summoned and hardship questioning commenced. Before Hovey™voir dire began, defense counsel for co-defendant Palmaasked thetrial court to explain to the prospective jurors that the case involved the deaths of children, because “that is substantially going to determine how the [prospective jurors] are going to answerthe three [Hovey death qualification] questions.” (5 RT 867.) Appellant’s counseljoined the request. (5 RT 867.) . | Thetrial court denied the defense request and further ruled thatit would “prohibit counsel from goinginto the facts of the case” when they questioned the prospective jurors. (5 RT 867.) Thetrial court asserted that “the only thing that the jury is supposed to know at the beginning of the case are the charges and, for the purposesof the death penalty, the [special] circumstanceis that in the same proceeding a defendant has been convicted of two or more counts of murder, whetherit be of the first or second degree.” (5 RT 867.) While the trial court indicated that it would inform the prospective jurors that the case involved a special-circumstanceallegation of “multiple 84 Hovey v. Superior Court (1980) 28 Cal.3d 1. 271 murders,” the court refused to tell the jurors that there were five victims. (5 RT 867.) Thetrial court reasoned that when “youstart adding in the — numbers then you’re starting to get a prejudgmenton the facts and that’s not right.” (5 RT 867.) Similarly, the trial court refused to advise the prospective jurors that two of the victims were children. While thetrial court acknowledgedthat “certainly, absolutely, children are going to play a big factor”in the jury’s sentencing decision, the court ruled that to question prospective jurors about that would “supply[] to the jurors facts that are part of the factors in aggravation and I don’t think it’s right to do that.” (5 RT 867.) Before the attorneys began to voir dire the prospective jurors for the first time, the trial court reiterated its pretrial ruling prohibiting defense counsel from conducting voir dire in a way that disclosed the specific facts of the case to prospective jurors: “I don’t want indoctrination, I don’t want any prejudgmentof the evidence... .” (8 RT 1115.) During voir dire, the trial court adhered toits pretrial ruling prohibiting defense counsel from asking questions of prospective jurors ‘involving the facts of the case. Thus, during the judge’s “Hovey” questioning of Juror 99, the prospective juror said that she would “tend to lean more .. . towards the death penalty” in a multiple-murder case. (9 RT 1280.) The judge followed up by asking Juror 99 if she would “automatically vote to impose the death penalty where there was more than one murder?” (9 RT 1280,italics added.) Juror 99 responded: “Not automatically but I would lean toward that side.” (9 RT 1280.) The judge then gave Juror 99 a lengthy explanation of California’s law regarding special circumstances (9 RT 1281-1283), and concludedhis explanation with the following question: 272 THE COURT: What I am now asking you is whetheror not in your mind do you view — are you starting off just knowing that this is a multiple — more than one murder, that there’s a possibility coming to a conclusion that a defendanthas committed more than one murderofeither the first or second degreeare youstarting off you’re going to just because two people are dead regardless of how it happened that you’re going to impose the death penalty, automatically? PROSPECTIVE JUROR:No,not necessarily. (9 RT 1284,italics added.) _ When counselfor co-defendant Palma attempted to “follow up” with Juror 99 abouther inclinations in a multiple-murder case, the judge immediately interrupted and cut off further questioning: MR. UHALLEY:[.. . ] Now, Juror 99, you’ ve indicated that you have some concern aboutthe fact of multiple murder and that you would lean more toward the death penaltyas a result of multiple murder. Multiple murderis sort of a generic term. Weare talking about five murders here. Is that going to change on that — THE COURT: That youare asking about prejudgment. A special circumstanceis not five murders. The special circumstance is more than one murder. You’re referring to the facts in this case, that’s improper. MR. UHALLEY: Well, your Honor, may we be heard on that? THE COURT: No. Wehavehashedthis out before we even got into jury selection. You may not derive her opinion with respect to five murders. MR UHALLEY: Your Honor,I respectfully ask the Court to be heard onthis issue. THE COURT: You maynot. I will hear you at recess. You may make yourrecord then. 273 (9 RT 1286-1287.) During the recess and outside the presence of the jurors, Uhalley movedfor a mistrial, arguing that the court had been “overly restrictive in [not] allowing us to voir dire the jury on the issue of multiple murder as well as the ages ofthe childrenor that there were children involvedin this — victimsin this case.” (9 RT 1310.) As Mr. Uhalley argued: I think it was illustrated by the questioning of Juror Number66,®I believe it was, who indicated that a multiple murder would weigh more on her mind and she would be more inclined to administer the death penalty in a case of multiple murder, and I believe thatthat illustrates that not being allowed to voir dire on the number of murders as well as that there were children involved in the case skewsthe jury selection process in terms of the poolthat we are going to get who would morethan likely, I believe, answer the question “Would you always under certain circumstances give the death penalty where there are children involved?” and I just don’t think that we are getting a fair-representation of a jury panel as to that question. , I think that if they were to know the numberof people and the ages of the people that they would answerthat question differently, the majority of them would answerthat question, maybe not the majority but at least some of them would answerthat question differently; and, therefore,I believe under those circumstances those people are being — could be excused for cause and they’re being excluded fromit because they don’t have sufficient information to answerthat question. 8° Mr. Uhalley’s reference to “Juror Number 66”hereis clearly mistaken, because Juror Number 66 had notyet been “Hovey voir dired”at this point in the proceedings. (See 9 RT 1329 [Hovey questioning of Juror Number.66].) Instead, it is clear that Mr. Uhalley is referring to the preceding questioning of Juror Number99,the juror who hadindicated that she would “lean more .. . towards the death penalty” in a multiple-murder case. (9 RT 1280.) 274 I don’t believe that it is a prejudging of the facts in the case by allowing that bit of information, and I would submit it, your Honor. (9 RT 1310-1311.) Thetrial court denied the motion for mistrial. The court reasoned that because there was no special circumstance pertaining to child victims, its preclusion of voir dire on that subject was appropriate: I don’t think you haveto be a rocket scientist to know that if you compare somebodythat kills an adult with somebodythat kills a six-month-old child and say which are you moreinclined, everything being equal, to give the death penalty, it will be with respect to the child. I don’t think it takes a rocket scientist that if somebody personally kills three instead of two that anybody’s goingto lookat that as being — everything else being equal, being worse. And those are factors in aggravation the District Attorney is going to argue I’m sure. There is no special circumstance of murdering six month olds, there is no special circumstance of murdering children, there is no special circumstance of murdering three people. The special circumstance here is more than one murder. Andby going into the number, going into the ages, or the sexes youare starting to go into the facts of the case that in going into factors that the jury can take into consideration to get the jury to prejudge the evidence and that’s just not proper. The special circumstance is more than one and that’s as far as it goes. ' Well, I have done this so many times whereI have had multiple murders that I am totally confidentthatthat’s a valid ruling. You can’t go into the facts ofthe case. I had ruled on that I think twice before we got in here and I now orderall parties to stay awayfrom thatissue. (9 RT 1311-1312,italics added.) 275 B. Applicable Legal Standards In Wainwright v. Witt (1985) 469 U.S. 412, 424, the Supreme Court held that prospective jurors may be excused for cause when their views on capital punishment would preventor substantially impair the performance of their duties as jurors. This qualification standard operates in the same manner whether a prospective juror’s views are for or against the death penalty. (Morganv.Illinois (1992) 504 U.S. 719, 738.) “Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendmentright to an impartial jury will be honored.” (Rosalez-Lopez v. United States (1981) 451 U-S. 182, 188 (plur. opn. of White, J.) In order to determine whether prospective jurors harbor views about the death penalty that would prevent or substantially impair the performanceof their duties as jurors, a criminal defendanthas the right to voir dire examination sufficient to reasonably ensure an impartial jury. (Morganv.Illinois, supra, 504 U.S.at pp. 735-736; Irvin v. Dowd (1961) 366 U.S. 717, 722; Aldridge v. United States (1931) 283 US. 308, 313.) General fairness and “follow the law” questions, without more, are constitutionally inadequate. (Morgan,at pp. 734-36.) In People v. Cash (2002) 28 Cal.4th 703, this Court observed that _ “*tt}he ‘real question’is whetherthe juror’s views about capital punishment would prevent or impair the juror’s ability to return a verdict of life without parole in the case before the juror.’” (Id. at pp. 719-720, quoting Peoplev. Ochoa (2001) 26 Cal.4th 398, 431, quoting People v. Bradford (1997)15 Cal.4th 1229, 1318, quoting People v. Hill (1992) 3 Cal.4th 959, 1003; italics in original.) To ensure a properresolution of this question,“[a] challenge for cause may be based on the juror’s response when informed of facts or circumstanceslikely to be present in the case beingtried.” (/bid.) 276 In Cash, the defendant was charged with capital murder. During individual and sequestered death-qualification voir dire, defense counsel attempted to ask a prospective juror “whether there were ‘any particular crimes’or ‘any facts’ that would cause that juror ‘automatically to vote for the death penalty.’” (People v. Cash, supra, 28 Cal.4th at p. 719.) Thetrial court ruled that the question was improper “because ‘we’rerestricted to this case.’” (Ibid.) Outside the presence of any prospective jurors, defense counsel argued for reconsideration of the ruling, explaining that he wished to inquire whether“prospective jurors could return a verdict oflife without parole for a defendant who hadkilled more than one person.” (Ibid.)*° As evidence of the prior murders wassure to be presentedata penalty phase, defense counsel was concerned whether prospective jurors could return a verdictoflife imprisonment without possibility of parole upon learning that defendant had committed prior murders. Thetrial court did not waver fromits prior ruling, explaining its reasoning as follows: - You cannotask anything aboutthe facts that are not charged in the Information [sic], period. You can’t raise one mitigating factor, nor can [the prosecutor] raise one aggravating [factor] that is not charged in the Information [sic]... . You cannot go past the Information[sic]. (Ibid.) In light of the trial court’s ruling, the defense took another tack. The defensefiled a written motion seeking permission to ask prospective jurors “whether there are any aggravating circumstances which would cause a prospective juror to automatically vote for the death penalty, without *° Cash had previously been tried and committed as a juvenile for the murdersof his elderly grandparents. (People v. Cash, supra, 28 Cal.4th at p. 717.) 277 considering the alternative of life imprisonment withoutpossibility of parole.” The trial court refused to budge, commenting: “I am not permitting you to ask them about any specific acts of mitigation or aggravation, as that would in my opinion have them prejudge the evidence.” (People v. Cash, supra, 28 Cal.4th at p. 719.) That ruling was enforced throughoutall remaining voir dire. ([bid.) This Court reversed the death judgment in Cash, holding that the trial court’s ruling preventing all voir dire on the issue of the aggravating evidence of the two prior murders denied the defendanthis federal and state constitutional rights to an impartial penalty jury. (People v. Cash, supra, 28 Cal.4th at p. 719.) This Court took care to emphasize that even within the specialized realm of death-qualification voir dire,a trial court cannot categorically restrict voir dire to preclude “mention of any general fact or circumstance not expressly pleadedin the information[citations].” (/d. at p. 722.) In recognizing Witt’s holding that prospective jurors may be excused for cause when their views on capital punishment would prevent or substantially impair the performanceof their duties as jurors, this Courtin Cash discerned that the truly relevant question is whether the juror’s views about capital punishment would prevent or impairhis or her ability to return a verdict of death in the case before the juror. (People v. Cash, supra, 28 Cal.4th at pp. 719-720; see also People v. Ochoa, supra, 26 Cal.4th at p. _ 431; People v. Bradford (1997) 15 Cal.4th 1229, 1318; People v. Hill, supra, 3 Cal.4th at p. 1003.) Noting that the death-qualification standard operates in the same fashion regardless of whether the prospective juror favors or opposes the death penalty, this Court observedthat “it is equally true that the ‘real question’ is whether the juror’s views about capital 278 punishmentwould preventor impair the juror’s ability to return a verdict of life without parole in the case before the juror.” (People v. Cash, supra, 28 Cal.4th at p. 720) In Cash, this Court acknowledgedthat a challenge for cause is justifiably based upon a prospective juror’s response upon being informed of the facts or circumstancesthat are likely to be adducedattrial. (/bid.) Thus this Court recognized that it has “endorsed such particularized death- qualifying voir dire in a variety of situations,” including the following: A prosecutor may properly inquire whether a prospective juror could imposethe death penalty on a defendantin a felony-murdercase (People v. Pinholster (1992) 1 Cal.4th 865, 916-917 ... , on a defendant whodid not personally kill the victim (People v. Ochoa,[(2001)] 26 Cal.4th [398,] 431; People v. Ervin (2000) 22 Cal.4th 48, 70-71), on a young defendant or one wholacked a prior murder conviction (People v. Livaditis (1992) 2 Cal.4th 759, 772-773 ..., or only in particularly extreme cases unlike the case beingtried (People v. Bradford, [(1997)] 15 Cal.4th [1229,] 1320). (People v. Cash, supra, 28 Cal.4th at p. 721.)*’ Becausethe fact of the defendant’s guilt for the prior murderofhis grandparents in Cash (1) was a general fact or circumstance presentin the case, and (2) could cause somejurors “invariably to vote for the death 87 The Court has foundthese principles equally applicable to voir dire by defense counsel. (See People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005 [error to restrict defendant’s case-specific voir dire on likely aggravating evidenceas a basis for peremptory challenges only]; People v. Earp (1999) 20 Cal.4th 826, 853 [defense counsel’s question as to whether prospective juror had personal experiences with child molestation, while relevantto death qualification, was adequately addressed bytrial court’s voir dire question whether “‘the charges against defendantrelating to allegations of sexual misconduct involving the death of child’ would have anyeffect on the juror’s sentencing decision”].) 279 penalty, regardless of the strength of the mitigating circumstances”(ibid.), the defense wasentitled to probe the prospective jurors’ attitudes on those circumstances. As the prior murder was“a fact likely to be of great significance” (People v. Cash, supra, 28 Cal.4th at p. 721.; italics added), the restriction of voir dire waserror. Thus, this Court concluded in Cash thatit waserror to preclude questions “specific enough to determineif those jurors harbored bias, as to somefact or circumstance shownbythetrial evidence”that would substantially impair their penalty deliberation. (People v. Cash, supra, 28 Cal.4th. at p. 720) This Court noted thatthe trial court hadto strike a balance between generic voir dire that was incapableofeliciting bias, and _ providing prospective jurors with such a “detailed account ofthe facts” that the jurors “would prejudge the penalty issue based on a summary ofthe aggravating and mitigating evidencelikely to be presented.” (Jd. at pp. 721- 722, citing People v. Jenkins (2000) 22 Cal.4th 900, 990-991.) This Court concluded that whatever discretion reposed in thetrial courts, “[t]hey may not, however,as the trial court did here,strike the balance by precluding mention of any general fact or circumstancesnot expressly pleaded in the information.” (/d. at p. 722.) | C. The Trial Court Erred by Precluding Any Inquiry Into the Prospective Jurors’ Views about the Death Penalty and Their Ability to Consider a Life Sentence in a Case in Which There WereFive Victims, Two of Whom Were Children In this case, thetrial court repeatedly did precisely what this Court emphatically forbade in Cash: “[p]reclud[ed] mention of any general fact or circumstances not expressly pleaded in the information.” (Peoplev. Cash, supra, 28 Cal.4th at p. 722.) Indeed, the trial court asserted that “the 280 only thing that the jury is supposed to knowat the beginning ofthe case are the charges and . . . the [special] circumstance” (5 RT 867) — in other words, the facts and circumstances expressly pleaded in the Information. Thus, in the trial court’s view, the parties were limited to questioning the prospective jurors about their views about the death penalty in cases involving “multiple murder.” The trial court expressly forbade asking the prospective jurors whether they would be able to considera life sentence in a case in which five people were murdered, or in which a child waskilled, becauseneither “the murder of five people” nor “the murder of children” wasalleged as a special circumstance. (9 RT 1311-1312.) Asthetrial court acknowledged, these were the very facts aboutthis case that were likely to weigh most heavily in the jury’s determination of sentence. With respect to the fact that two of the victims were a five-year- old girl and a six-month-old infant, the trial court acknowledgedthat “most jurors would view, shouldn’t, but they would, view the killing of an adult a lot differently than they would the killing of a child” (3 RT 692), and that the fact that there were child victims in this case was.“certainly, absolutely [... ] going to play a big factor”in the jurors’ decision as to whether to imposethe death penalty (5 RT 867). With respect to the number of victims, the judge acknowledged “it’s one thing in my mind to have two murders[,] [iJt’s another thing to have five.” (3 RT 692.) Recently, in People v. Roldan, supra, 35 Cal.4th 646, 694, this Court implicitly recognized that the fact that a capital case presents the murder of child victims is a fact or circumstance “comparable in relevanceto the prior murders in People v. Cash. ...” In rejecting the defendant’s claim that the trial court had improperly restricted voir dire, the Roldan Court contrasted the case with Cash, reasoning that the defendanthadfailed to identify any 281 “fact about his case that is comparable in relevanceto the prior murdersin People v. Cash [citation], facts that could potentially have prejudiced even a reasonable juror. There were in this case no prior murders, no sensational sex crimes, no child victims, no torture.” (Ibid.) Similarly, this Court has observedthat “[m]Jultiple murderfalls into the category of aggravating or mitigating circumstances‘likely to be of great significance to prospective jurors.’” (People v. Vieira (2005) 35 Cal.4th 264, 286, quoting People v. Cash, supra, 28 Cal.4th at p. 721.) Thus, inquiry into these two areas wasentirely proper, and the defense wasentitled to inquire about them — orto have the court do so — in order to ensure that the jury could fairly and impartially determine appellant’s penalty according to law. In People v. Noguera (1992) 4 Cal.4th 599, 646, the defendant complained that the prosecutor was permitted to voir dire jurors whether they would “consider” imposing the death penalty on a defendant who was 18 or 19 years old at the time of the killing of a single victim. This Court held that the prosecutor’s questioning was entirely proper because he “simply inquired whether a jury would consider imposing the death penalty” in a case involving those facts, and “[i]f a juror would not even consider the death penalty in such a case, he or she properly would be subject to challenge for cause.” (Ibid; italics in original.) That reasoning applies with equal force here. Appellant had a right to ask each juror whetherheor she could voteforlife in the face of evidencethat there were five victims, including two young children. There may well have been someprospective jurors who would not have been unable to considera life sentence in a case in which “more than one” person was killed, but would have been unable to consider a life sentence in a case 282 in which five people were murdered. Similarly, there may well have been prospective jurors who would have been unable to do so in a case in which young children, including a six-month-oldbaby, were killed. Because the law governing death-qualification of jurors in capital cases (Wainwrightv. Witt, supra, 469 U.S. 412; Witherspoonv.Illinois (1968) 301 U.S. 510) is equally applicable to challenges to jurors favoring and opposing the death penalty (Morganv.Illinois, supra, 504 U.S. at p. 738), a prospective juror who cannot “even consider”a life sentence in such a case “properly would be subject to challenge for cause” (People v. Noguera, supra, 4 Cal.4th atp. 646). Thetrial court’s restriction of appellant’s voir dire of prospective jurors deprived him ofhis rights to exercise both cause challenges and peremptory challenges, his right to a fair and impartial jury, his due process _ rightto a trial conforming with the rules ofthe jurisdiction in which he was tried, and hisrightto a reliable penalty determination. D. Becausethe Trial Court’s Ruling Was Categorical, the Error Must Be Deemed Prejudicial Per Se Althoughthere are cases in whicherrorin the restriction of death- qualification voir dire doesnot inexorably lead to reversal (see, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 974), this is not such a case. This Court has identified two often interrelated situations in which such error might be deemed harmless. Thefirst is where a defendant was given the opportunity to probe into prospective jurors’ attitudes about case- specific facts during the general voir dire. The second scenario is whereit is possible to determine from the record “that none of the jurors had a view about the circumstances of the case that would disqualify that juror.” ([bid.) In the case at bar, appellant was categorically precluded from exploring, in 283 general voir dire, the prospective jurors’ attitudes aboutthe aggravating circumstances of the charged crime. That categorical denial resulted in a record from whichit is impossible for appellant to point to a particular biased or unbiased juror. -Thus, this case is squarely controlled by People v. Cash, wherethis Court reversed the penalty judgmentfor the identical errorin restricting death-qualification voirdire. Here, as in Cash, the general voir dire of each individual and sequestered prospective juror took place immediately following death-qualification voir dire, and, also as in Cash,therestriction on voir dire was clearly understood byall to extend into general voirdire. (People v. Cash, supra, 28 Cal.4th at p. 722.) Indeed, when the subject arose during individual voir dire, the trial court “ordered” the attorneys to refrain from asking any questions of the prospective jurors that touched on these forbidden subjects. (9 RT 1312.) Asthis Court has observed: A defendant whoestablishesthat “any juror who eventually - served was biased against him”is entitled to reversal. (Citations.) Here, defendant cannotidentify a particular biased juror, but that is because he was denied an adequate voir dire about prior murder, a possibly determinative fact for a juror. By absolutely barring any voir dire beyond facts alleged on the face of the charging document,thetrial court created a risk that a juror who would automatically vote to imposethe death penalty on a defendant who had previously committed murder was empanelled and acted on those views, thereby violating defendant’s due processright to an impartial jury. (Citation.) (People v. Cash, supra, 28 Cal4th at p. 722.) Just as in Cash,thetrial court’s error in precluding any mention of the numberof victims, or the fact that two of the victims were young children, cannot be regarded as harmless here. 284 Reversal of the penalty is required because “the trial court’s error makesit impossible for us to determine from the record whether anyof the individuals who [were] ultimately seated as jurors held the disqualifying view that the death penalty should be imposed invariably and automatically on any defendant who had committed one or more murdersother than the murder chargedin this case.” (People v. Cash, supra, 28 Cal.4th at p. 723.) Consequently, the trial court’s error denied appellant his due process right to an impartial jury and a reliable penalty determination, as guaranteed by the Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. (Morganv.Illinois, supra, 504 U.S. at p. 739.) I I 285 13 THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF THREATS ALLEGEDLY MADE BY APPELLANTAS REBUTTAL AT THE PENALTY PHASE, REQUIRING REVERSAL OF THE DEATH JUDGMENT At the penalty phase,the trial court committed reversible error by admitting improper, irrelevant and highly prejudicial rebuttal testimony by Anthony France, a school counselor at San Gabriel High School, about threats appellant made as an 18-year-old high school student in connection with a fight on school grounds. France’s testimony did notin fact rebut any mitigating evidence offered by the defense, and nothing presented by the defense “‘opened the door”to that evidence. The improper admission ofthis evidence violated appellant’s Sixth, Eighth and Fourteenth Amendment rights and requires reversal of the death judgment. (See Saffle v. Parks (1990) 494 U.S. 484, 493.) A. Proceedings Below | Atthe penalty phase, the defense presented testimony from . appellant’s father, Migel Valdez (“Valdez”), about appellant’s childhood upbringing and educational history. Valdez testified about the various schools that appellant attended and the grades he received at each school. In addition, the defense introduced appellant’s school records from the West Covina Unified School District, reflecting his grades from 9th grade through the first semester of 12th grade. (Exh. Nos. 105,106, 107, 108, 109, 110, 111, 112-A, 112-B, 113; ; 1 SuppCT IV 236-255; 39 RT 4057- 4059, 4064-4067.) . Valdez testified that appellant attended Granada Elementary School, Charles D. Jones Junior High School, and then Baldwin Park High School 286 while living in Baldwin Park. (39 RT 4056.) In 1988, appellant movedin with his father and stepmother in West Covina, and began attending West Covina High School. (39 RT 4056, 4058, 4095.) During his junioryear, appellant moved in with his grandparents in Alhambra, where he attended Century High Schoolin his senior year. (39 RT 4061, 4067.) Valdez said that appellant had “some good grades and some bad grades” at West Covina High School. (39 RT 4057.) Appellant’s report cards generally confirmed that he received “some good grades and some bad grades” throughouthis high school education.* On cross-examination, the prosecutor asked Valdez if he was aware of an incident that occurred when appellant wasin high school. The questioning proceededas follows: © Q. And as I understood your testimony this morning . . . at some point after [appellant] went to or was — went to Century High Schoolit wasat that point in time heleft living with you? A. Yes. Q. Was [appellant] with you or are you aware ofthe situation where hethreatened to shoot a schoolofficial in the head? A. No,I was not awareof that. Q. And where heindicated that a male schoolofficial was his bitch andthat this male school official’s ass was his? 88 Appellant’s report cards indicated that in 9th grade at Baldwin Park High School, he received a B in Elementary Electronics in thefirst semester and an A in that class in the second semester, but received Fsin all of his other classes that year. (1 SuppCT IV 237; 39 RT 4058.) In 10th grade at West Covina High School, he received two Bs, four Cs, and six Ds. (1 SuppCT IV 237.) In his junior year at West Covina High School, he received one A, four Cs, and four Fs. (1 SuppCT IV 237; 39 RT 4059.) In his senior year at Century High School, he received an A in U.S. History, a B in American Government, and “Ps”in all of his other classes. (1 SuppCT IV 237.) 287 A. I was not aware ofthat. Q. Wasthat the reason that [appellant] was expelled from one high school and sent to Century? A. I’m not awareofanyofthis. (39 RT 4096-4097.) The defense also presented testimony from Dr. Ronald Fairbanks, a licensed school psychologist. (39 RT 4104.) Dr. Fairbankstestified that appellant’s intellectual ability was “above average” and that he could be productive in prisonif the institution provided him with the opportunity to workin a library setting. (39 RT 4104, 4109.) Dr. Fairbankstestified about his clinical evaluation of appellant’s personality, based upon battery of psychodiagnostic tests Dr. Fairbanks administered as well as an interview he conducted with appellant. (39 RT 4105, 4107-4108, 4118-4129.) Those test results indicated that appellant had “virtually sabotag[ed]” the psychological evaluation. (39 RT 4119.) Dr. Fairbanks concluded that appellant’s “destruction of the results was consistent with other trends”that he observed from his interview with appellant, such as “his suicidal tendenciesin the past.” (39 RT 4120.) Dr. Fairbankstestified that a person with suicidal tendencies would “have very low self-worth, would try to put himself in dangeroussituations, [would] take risks that other people wouldn’t normally take, [would be] generally depressed.” (39 RT 4123.) Dr, Fairbanks observed that appellant “was negative regarding his childhood,” but he was unable to obtain much information from appellant about it. (39 RT 4126.) Appellant spoke only “verybrief[ly]” abouthis educational background. (39 RT 4123.) Accordingly, Dr. Fairbanks had not previously been aware that appellant had attended several high schools. (39 RT 4123.) Nonetheless, he said that appellant’s sporadic educational 288 history was consistent with his characterization of appellantas a “self- defeating” person. (39 RT 4124, 4128.) After the defenserested, the prosecutor asked for permissionto call Anthony Francein rebuttal, even though he had previously advised defense | counsel that he did not intend to call France as a witnessat the penalty phase. (40 RT 4227.) The prosecutor proffered that France would testify about the incident — about which the prosecutor had questioned Valdez during cross-examination — in which appellant allegedly threatened to shoot a schoolofficial in the head. (40 RT 4233.) The prosecutor contendedthat hefirst learned aboutthe incident whendefense counsel provided him with appellant’s school records — between the guilt and penalty phases of trial. (40 RT 4233.) According to . the prosecutor, those records included a report about an incident that occurred at San Gabriel High School in 1991, in which appellant was detained by schoolofficials for his involvementin “some type of gang fight.” (40 RT 4234.) After he was detained, appellant supposedly “told the security counselor he should quit his job so that [appellant] could kick his ass, that the security counselor was [appellant’s] bitch, . . . and that the security counselor’s ass was [appellant’s].” (40 RT 4234.) The records also indicated that appellant threatened to shoot France. (40 RT 4234.) As a result of the incident, appellant was suspended from San Gabriel High School. (40 RT 4233.) The prosecutor argued that he was “not going to go into it and make a big deal of” the incident; however, because [defense counsel] put on [Dr. Fairbanks], he put on yesterday extensive testimony regarding [appellant’s] background and opportunities that he had to serve our country in the Navy,to go to I.T.T. and becomea productivecitizen, 289 Little League, the fact that his mother was a team mother and so forth and even hadthe doctortestify that [the] reasons for a lot of schools was perhaps moving arounda lot, the parents moving around, [but] there was neverany talk about possible reason is [sic] suspension andso forth. (40 RT 4234-4235.) The prosecutor argued that France’s proffered testimony was proper rebuttal evidence for two reasons. First, because it served to impeach defense witnesses who hadtestified the day before, “particularly [appellant’s] father [who] said he.didn’t know aboutthis.” (40 RT 4236.) Second, because the “defense ha[d} put on a great deal of evidence regarding school records, [and] had [Dr. Fairbanks]testify that reasons for moving — the reasonshe gavedid not include anything that might look the negative fashion [sic] upon [appellant].” (40 RT 4236.) The prosecutor further argued that the proffered evidence was admissible notas rebuttal, but also as “direct evidence” of “factor b, the presenceor absenceof criminal activity.” (40 RT 4237.) He arguedthat under that section the defendant does not need to have been convicted of the crime in whichheis alleged to have used force or violence. (40 RT 4237.) Defense counsel objected that France’s testimony was not properly admitted in rebuttal. (40 RT 4231.) Counsel argued that appellant was not living with his father at the time of the incident and therefore it was improper to ask Valdez whether he knew the circumstances of appellant’s expulsion when he had noreason to know. (40 RT 4232.) Moreover, defense counsel argued that France’s proferred testimony failed to rebut any evidence presented by the defense. (40 RT 4237.) Counsel argued that it did not rebut Dr. Fairbanks’s testimony aboutthe fact that appellant attended several high schools because Dr. Fairbanksdid not 290 profess to know the reasonsfor that. (40 RT 4238.) Counsel argued that the evidence might be admissible if the defense had suggested a contrary reason why appellant moved from one schoolto another, butthat it did not rebut any evidencethat the defense actually presented. (40 RT 4238.) Thetrial court stated that there was no question that the evidence was admissible as aggravation, but questioned whether it was appropriate rebuttal evidence. (40 RT 4239.) Ultimately, the court found that it was appropriate rebuttal, and overruled the defense objection. (40 RT 4239.) Onrebuttal, the prosecutor called France, a campus supervisor at San | Gabriel High School, whotestified that he broke up a fight there on December 18, 1991. (40 RT 4253.) Francetestified that he did not recall the fight, other than that there were a numberof people involved and that he detained appellant afterwards. (40 RT 4254.) Over the defense’s hearsay objection, the prosecutor asked France whether appellant said something to another campussupervisor. (40 RT 4254.) Francetestified that appellant told another supervisor that he was going to kick his ass and that he washis “bitch.” (40 RT 4255.) Francealso testified appellant Jater said that “he was going to put a bullet in my head.” (40 RT 4255.) On cross-examination, France acknowledgedthat he did not take appellant’s threat seriously, that it was notthe first time someone had made that threat to him at the high school, and that such a threat was a “standard phrase”that was said to security officers when they broke up a fight. (40 RT 4256.) Before the prosecutor mentioned France’s testimonyin his closing argument, defense counsel movedtostrike that testimony. (40 RT 4274- 4281.) Counsel arguedthat the testimony “had nothing to do with rebutting the case that [the defense] put forward.” (40 RT 4274.) Counselalso 291 argued that the prosecution failed to “follow through” and establish that the incidentled to appellant’s suspension from schoolor to criminal proceedings. (40 RT 4275.) In response, the prosecutor argued that he had madean offer of proof prior to the court’s ruling andthat, in any event, France’s testimony was“clearly admissible as to the one subsection, the presence or absence.” (40 RT 4275.) Thetrial court responded:“It is factor b.” (40 RT 4275.) Thetrial court agreed that the testimony would have been admissible in the prosecution’s case-in-chief, but asked the prosecutor to respond to the defense argument“that it was not in rebuttal to anything that they putin.” (40 RT 4275.) The prosecutor responded: Well, then, I think the court clearly could in its discretion allow me to re-open and put it in. This is not evidence that I knew aboutuntil nghtat the start of the penalty phase where the defense gave me confidential school . documents that I otherwise would notbe entitled to without showing. ... I did not know ofthis information until right at the start of the penalty phase when [defense counsel] told me about it. So this is certainly not a situation where the prosecution sandbaggedthe defense. This is a situation where whenthe prosecution found out about something atthe last moment, and one might evensay that the defense had been under an obligation long before that to provide this in discovery, but I also understand the constraints under which _ [appellant’s] lawyer has been working;but I think clearly the court can allow it in as direct evidence under re-opening and, in addition, I do believe that in some degreethis testimonyis proper rebuttal because the defense put on a numberof witnessesto testify that [appellant’s] conduct in school, especially from the last witness that the jury heard this morning, was exemplary and clearly that’s not the case. We’re talking about things that happened in the school setting. (40 RT 4275-4276.) 292 Defense counsel respondedthat the evidence was“still not for rebuttal,” and that the prosecution had appellant’s schoolrecordsprior to the beginning of the penalty phase. (40 RT 4278.) The court asked defense counsel how appellant was prejudiced if the evidence was admitted “at the end”of the case instead of in the prosecution’s case-in-chief. (40 RT 4278.) Defense counsel responded: [H]e’s prejudicedin the fact that this doesn’t even indicate criminal activity. .. . [France] said he didn’ttake this [seriously] and there was no demonstration that this is criminal activity. This was a hot-headed studentafter a fight makingidle threats and that’s the most thatit had arisento. Noarrests resulted from that. There was no demonstration of an arrest... resulting [from] that. There was no demonstration of a [prosecution] that resulted from that, and there was no demonstration the victim took it serious[ly] in any manner, shape, or form and hedidthis onlyaspart of his duties as a security guard. (40 RT 4278-4279.) Defense counsel further argued that the prosecutor had the opportunity to introduce France’s testimony as “factor b” evidence in the People’s case-in-chief but failed to do so, and that, as a result, defense counsel intentionally decided not to present testimony in the defense case _ from other Alhambra School District employees, including twowitnesses that the defense had under subpoena. (40 RT 4279-4280.) The court overruled the defense objection, reasoning that the evidence would have been admissible in the prosecution’s case-in-chief and that, accordingly, appellant was not “prejudiced” by its admission in rebuttal. (40 RT 4280-4281.) In his penalty phase closing argument, the prosecutor told the jurors that they would beinstructed that (1) they could “consider, take into account, and be guided by”the factors under section 190.3 in determining 293 the proper penalty; and (2) with respect to factor (b), they could consider “the testimony this morning of France regarding . .. what happenedat the San Gabriel High School.” (40 RT 4285.) The prosecutor argued that France’s testimony showedappellant “in his element, and his elementis an element that he chose willingly and knowingly. It’s an element where he is a memberof a gang and will carry out whatever benefits that gang.” (40 RT 4288.) B. The Testimony Was Improper Rebuttal It was reversible error to admit France’s testimony aboutthe incident at San Gabriel High School becauseit exceeded the proper scope of rebuttal. Admission of this improper rebuttal testimony violated appellant’s rights to have reasonable limits placed on the admission of aggravating evidence (U.S. Const., 6th, 8th and 14th Amends.; Lockett v. Ohio (1978) 438 U.S. 586; Cal. Const., art. I, §§ 7, 15, 27 ), to receive due process and a fair trial (U.S. Const., 6th and 14th Amends.; Hicks v. Oklahoma, supra, 447 US. at p. 346; Cal. Const., art. I, §§ 7, 15]), and to a reliable penalty determination (US. Const., 8th and 14th Amends.; Woodson v. North Carolina (1976) 428 U.S. 280, 305; see also Gardnerv. Florida (1977) 430 US. 349; Cal. Const., art. I, §§ 7, 27). Reversal of the death judgmentis thus required both under California law and the federal andstate constitutions. 1. Rebuttal Evidence Must Relate to an Issue Raised by the Defense Proper prosecution rebuttal evidence “ ‘is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence... .” (People v. Daniels (1991) 52 Cal.3d 815, 859, quoting People v. Carter (1957) 48 Cal.2d 737, 753-754.) “[T]he usual rule [on 294 rebuttal evidence] will exclude all evidence which has not been made necessary by the opponent’s case in reply.” (6 Wigmore, Evidence (Chadbourne ed. 1976) §1873, p. 672,italics in original.) In determining whether evidence falls within the “proper scope of rebuttal,” the relevant question is “whether two statements ‘cannotat the same time be true. ... Thus, it is not a mere difference of statementthat suffices; .. . an inconsistency[] is required.’” (Jamesv. Illinois (1990) 493 U.S. 307, 325, fn.1 (dis. opn. of Kennedy, J.), quoting 3 Wigmore, Evidence (Chadbourne ed. 1970) § 1040.) Thus, in discussing whether previously- excluded evidence should be admitted to rebut a defendant’ s false testimony, Justice Kennedysaidtrial courts should have no difficulty “(djefining the proper scope of rebuttal” because the rule requires a “direct conflict”between the two versions of the facts. (James, at p. 325, fn. 1 (dis. opn. of Kennedy,J.).) With respect to the penalty phase of a capitaltrial, this Court has held that once the defendanthas presented evidence of circumstancesin mitigation, the prosecution may present rebuttal evidence “tending to ‘disprove any disputed fact that is of consequenceto the determination of the action.’ ” (People v. Boyd (1985) 38 Cal.3d 762, 776, quoting Evid. Code, § 210.) However,“[t]he scope of [penalty phase] rebuttal must be specific, and evidence presented or argued as rebuttal mustrelate directly to a particular incident or character trait defendant offers in his own behalf.” (People v. Rodriguez, supra, 42 Cal.3d at p. 792, fn. 24; accord Peoplev. Jones (1998) 17 Cal.4th 279, 307; People v. Carpenter (1997) 15 Cal.4th 312, 408-409.) Accordingly, a defendant whoplaces his character in issue by presenting mitigating evidence opensthe dooronly to “prosecution 295 evidence tending to rebut that ‘specific asserted aspect’ of [his] character.” (People v. Mitcham (1990) 1 Cal.4th 1027, 1072; People v. Hart (1999) 20 Cal.4th 546, 653.) That rule is based on the principle that “[g]enerally, the scope of bad character evidence mustrelate directly to the particular character trait concerning whichthe defendant has presented evidence.” (People v. Mitcham, supra, 1 Cal.4th at p. 1072; People v. Rodriquez, supra, 42 Cal.3d at pp. 791-792; see also In re Jackson (1992) 3 Cal.4th 578, 613, disapproved on.another point by In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6 [penalty phase rebuttal cannot“go beyond the aspects of the defendant’s background on whichthe defendant has introduced evidence”]; United States v. Winston (D.C. Cir 1991) 447 F.2d 1236, 1240 [the “opening the door”rule “is designed to prevent prejudice andis not to be subverted into a rule for the injection of prejudice”].)® 2. France’s Testimony Was Improper Rebuttal Because It Did Not Disprove any Disputed Fact of Consequence to the Action, and Appellant Did Not “Open the Door”to Its Admission France’s testimony aboutthe incident at San Gabriel High School was improperrebuttal becauseit did not “disprove any disputed fact that wasof consequenceto the determination of the action” (People v. Boyd, supra, 38 Cal.3d at p. 776), and wasnot a response to any “particular ® This rule that rebuttal evidence must actually respond to the defendant’s case also applies in prosecutions underthe federal death penalty statute. Thus, United States v. Stitt (4th Cir. 2001) 250 F.3d 878, 896-896, held that it was error to admit victim-impact evidence to rebut evidence about the defendant’s troubled background and good qualities, becauseit wasnot “reasonably tailored” to meet the defendant’s evidence. Stitt points out that there must be a “reasonable nexus between the purported rebuttal evidence and the evidenceit seeks to rebut.” (/d. at p. 897, citing United States v. Curry (4th Cir. 1975) 512 F.2d 1299, 1305.) 296 incident or charactertrait” that appellant offered in mitigation (Peoplev. Mitcham, supra, | Cal.4th at p. 1072). In support of his proffer of the testimony, the prosecutor contended that evidence aboutthe incident at San Gabriel High School wasrelevant as rebuttal on two bases: (1) to “impeach” Valdez’s testimony that he was unawareofthe incident (40 RT 4236); (2) to rebut Dr. Fairbanks’s testimony that the reason appellant attended a numberof different high schools was “perhaps”that his parents were “moving around a lot.” (40 RT 4236). Neither of these reasons provided a basis for admission of the testimony in rebuttal. France’s testimony wasnot admissible to “impeach” Valdez’s testimony. While evidence tending to prove or disprove “the existence or nonexistence of any fact” to which a witnesshastestified is admissible to impeachthat witness’s credibility (Evid. Code, § 780, subd.(i)), France’s testimony did not prove or disprove the existence or nonexistence.of any fact to which Valdez testified. In response to the prosecutor’s questions on cross-examination, Valdez did not deny or dispute that the incident at San Gabriel High School occurred;rather, he testified that he was not aware that | it occurred.” (39 RT 4096-4097.) Thus, the prosecutor could only “impeach” Valdez’s credibility with proof that he was aware that the incident occurred. France’s testimony had no tendencyto establish that Valdez knew,or had any reason to know,that the incident occurred. (40 | RT 4253-4257.) Because Francedid nottestify either that he informed Valdez about the incident or that Valdez made anyprior statement that was In fact, as defense counselpointed out, appellant was notliving with his father when he attended San Gabriel High School, and thus Valdez had no reason to know aboutthe incident. (40 RT 4232.) 297 inconsistent with his testimony that he did not know abouttheincident,his testimony wasinadmissible to “impeach”either Valdez’s testimony or his credibility. Moreover, the admission of France’s testimony to impeach Valdez’s testimony was improper becauseit violated the rule against impeachment on collateral matters, which has been “most positively declared when the cross- examiner soughtto bring in rebuttal witnesses to contradict an answer elicited on cross-examination.” (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation At Trial, § 347, p. 433.) It is improper for a party to cross- examine a witness about a collateral matter for the purpose of contradicting the witness’s testimony aboutit. (People v. Mayfield (1997) 14 Cal.4th 668, 748; People v. Price (1991) 1 Cal.4th 324, 436; People v. Thompson (1988) 45 Cal.3d 86, 110; People v. Lavergne (1971) 4 Cal.3d 735, 744.) It is also well established that the prosecutor cannot manufacture a basis for admitting rebuttal evidencebyfirst eliciting testimony on cross- examination of a defense witness, and then seeking to admit contrary evidencein rebuttal. (People v. Ramirez (1990) 50 Cal.3d 1158, 1192- 1193; People v. Wagner (1975) 13 Cal.3d 612, 619; People v. St. Andrew (1980) 101 Cal.App.3d 450, 461.) In People v. Daniels, supra, this Court explained that “proper rebuttal evidence[] is restricted to evidence made necessary by the defendant’s case in the sensethat [the defendant] has introduced new evidence or madeassertions that were not implicit in his denial of guilt.” (52 Cal.3d at p. 859, italics added). Testimonyelicited by the prosecutor on cross-examination of a defense witness is not evidence “introduced”by the defense, and rebuttal evidence cannot be made “necessary” when the prosecutorelicited the new evidenceor assertions himself. (6 Wigmore, Evidence (Chadbourne ed. 1976), § 1873; People v. 298 Thompson (1980) 27 Cal.3d 303, 330; People v. Mendibles (1988) 199 Cal.App.3d 1277, 1302.) Here, the prosecutor sought to admit France’s testimonyfor the ostensible purpose of rebutting testimony that he himself elicited while cross-examining Valdez. That rebuttal testimony was thus improper becauseit was not “made necessary” by appellant’s case. Further, as stated above, rebuttal evidence is only admissibleif it has | a tendencyto “disprove any disputed fact that [is] of consequenceto the determination of the action.” (People v. Boyd, supra, 38 Cal.3d at p. 776) Because whether Valdez was aware ofthe incident at San Gabriel High School wasnot a material fact “of consequenceto the determination of”this case France’s testimony was not admissible to rebut Valdez’s testimony. (Jamesv. Illinois, supra, 493 U.S. at p. 325, fn. 1 (dis. opn. of Kennedy, J.) [admission of rebuttal evidence requires a “direct conflict” between the two versions of the facts]; Boyd, supra, 38 Cal.3d at p. 776 [rebuttal evidence musttend to “disprove [some] disputed fact that is of consequenceto the .determination of the action’’].) - The prosecutor also argued that France’s testimony was admissible in rebuttal because Dr. Fairbankstestified to the “reasons for moving [and] the reasons he gave did not include anything that might look the negative fashion [sic] upon [appellant].” (40 RT 4236.) But in fact Dr. Fairbanks never professed to know whyappellant attended several high schools. Dr. Fairbankstestified that he did not know whyappellant had changed schools, and did not even know that appellant had attended four different high schools priorto his testimony. (39 RT 4123.) While Dr. Fairbanks observedthat “frequently children go from schoolto school because [their] 299 parents are moving,” he madeit clear that he did not know whetherthat was the situation in this case or not. (39 RT 4124.) In any event, as defense counsel pointed out to the trial court, the prosecutor “didn’t follow through” to show that appellant was suspended because of this incident and thus France’s testimony did not accomplish the ostensible purpose for which it wasoffered: Mr. France’s testimony was [admitted] to show that [appellant] was thrown out of ... one of the high schools. _ [But] [a]ll that was presented wasthat he wasin a fight and he madethese words to Mr. France. It had nothing to do with rebutting the case that I put forward. ... [The prosecutor] didn’t follow through [and show] whetherthis was used in expulsion proceedingsor used in a proceeding[] to arrest him or whetherit was used in any other type of proceeding. ... (40 RT 4275.) The prosecutor’s failure to establish that the incidentled to appellant’s suspension and forced him to change schools demonstrates that his proffered reasons for offering evidence aboutthat incident in rebuttal were mere pretexts, and that his real purpose wasto getthis highly | prejudicial incident before the jury as impermissible aggravating evidence. Finally, the evidence was not admissible to rebut “any particular incidentor charactertrait” that appellant offered in mitigation. (Peoplev. People v. Mitcham, supra, 1 Cal.4th at p. 1072.) This issue is controlled by the general rule that penalty phase rebuttalis restricted to “aspects of the defendant’ s background on which [he or she] introduced evidence.” (People v. Ramirez, supra, 50 Cal.3d at pp. 1191-1193; In re Jackson, supra, 3 Cal.4th at p. 613.) In Ramirez, the trial court permitted the prosecution to introduce evidence of the defendant’s prior misconduct in responseto testimony by the defendant’s mother disclosing the adverse circumstances experienced by the defendantin his early childhood. (/d.at 300 pp. 1191-1192.) This Court held that a defendant does not “open the door” by presenting mitigating evidence relating to a defendant’s background or character, and that the admission of such evidence does notprovide the prosecutor with a broadlicense to presentother evidenceof the defendant's background to give the jury “a more balanced picture of his personality.” (Id. at p. 1192.) “Because the defense had presented no evidence to suggest that defendant had not engaged in any such misconductin his childhood, - this evidence wasnot properrebuttal evidence and went beyond the scope of permissible cross-examination.” (Jd. at p. 1193.) As in Ramirez, the defense presented no evidencein this case to suggest that appellant had not engaged in misconduct in high school. Quite the contrary, in fact. Valdez testified on direct examination that he and appellant “were in constant conflict” while appellant wasin the 10th and 11th grades over his demandsthat appellant get good grades andfollow his father’s rules. (39 RT 4059-4060.) Appellant also began to get involved with street gangs in San Gabriel during that period. (39 RT 4060.) Valdez also testified that appellant moved out of his home during his junior year because “I was unhappy with his performance and he was unhappy with my rules.” (39 RT 4067.) In addition, the defense presented Valdez’s testimony about the gradesthat appellant received while attending West Covina High School. (39 RT 4057-4067.) Appellant’s report cards — which were introducedinto evidence by the defense — included numerous negative comments from appellant’s teachers about his school performance, including the following: “neglects homeworkand/or class work”; “class projects not completed”, 99, 66.“low test scores”; “homework unsatisfactory”; “uses inappropriate language 99, 66 99, 66 99, 66 in class”; “inattentive in class”; “excessive talking in class”; “poor attitude 301 99, 66 99, 66.toward learning”; “disruptive in class/violates rules”; “poor class participation”; and “does not appear to be working to capacity.” (Exh. Nos. 107, 108, 109, 110, 111, 112-A, 112-B, 113; 1 SuppCT IV 241-253.) Clearly, none of this defense evidence about appellant’s behavior and performancein high school opened the door to France’s testimony aboutthe assault at San Gabriel High School. While this Court has on several occasions upheld the admissibility of various types of penalty phase rebuttal evidence, those cases are clearly _ distinguishable from appellant’s, because they all involved evidence that . responded directly to mitigating evidence offered by the defense. Thus, in People v. Carpenter, supra, because the defendant “placed his general character in issue” by offering evidence that he was respectful to women and“good with his children,” it was proper to rebut that testimony with evidencethat he encouraged a 14-year-old girl to engage in prostitution. (15 Cal.4th at pp. 408-409.) By contrast,France’s testimony related to an issue raised by the prosecutor in cross-examining Valdez aboutthe alleged school incident. (39 RT 4096-4097.) People v. Mitcham, supra, | Cal.4th at pp. 1071-1072,is also inapposite, because the rebuttal evidenceat issue in that case directly contradicted proffered mitigation. Thus, evidence about the defendant’s “calculated and purposeful” behavior while committing an uncharged robbery, and abouthis involvementin juvenile misconduct, was admitted to . counter assertions that he “act[ed] out of character and underthe influence of PCP” in committing the charged crimes, and was “general[ly] a well- behaved youth.” (Jd. at pp. 1071-1072.) Carpenter and Mitcham involved reasonable applications of the Ramirez standard, because in those cases the defendants “open[ed] the door 302 - to prosecution evidence tending to rebut” their good character evidence. (Mitcham, supra, | Cal.4th at p. 1072; see People v. Siripongs (1988) 45 Cal.3d 548, 576-578 [proper to rebut evidence of defendant’s truthfulness - and honesty with evidence of prior convictions involving dishonesty].) Because the defense presented no evidence to suggest that appellant had not engagedin any such misconductin high school, France’s testimony was improper rebuttal because it went “beyondthe aspects of [appellant’s] background on which [he] introduced evidence.” (In re Jackson, supra, 3 Cal.4th at p. 613.) C. It Was Prejudicial Error to Admit the Improper Rebuttal Testimony, and Reversal of the Death JudgmentIs _ Required The admission of France’s testimony requires reversal of the death judgment. In his closing argumentat the penalty phase, the prosecutor made extensive reference to that testimony, but did not argue that it rebutted anything presented by the defense, but rather that it was evidence the jury “could consider’as an aggravating factor under section 190.3, factor (b). _ Becausethe prosecution did not present any other evidencerelated to that aggravating factor, the improper admission of France’s testimony necessarily skewed the jury’s consideration of aggravating and mitigating factors in violation of the Eighth Amendment. The significance of France’s testimonyis illustrated by the extensive | reference madetoit by the prosecutor in his penalty phase closing argument: | Asto that particular factor [factor (b)], there was also the testimony this morning of Mr. France regarding [appellant] and what happenedat the San Gabriel High School. 303 And I am well aware,ladies and gentlemen,that Mr. France is honest with you, as well he has an obligation to be that he didn’t take that seriously. That’s not the point. The point is there’s two sides to [appellant]. The side when he wants to manipulate or get what he wantsto get and the side that is the Sangra gang member whocarries on activities on . behalf of his gang and at the behest of the Mexican Mafia. And when he got involved in this one incident in San Gabriel High School, the true Richard Valdez came out with the language, andI will not repeat the languagethat he used to the one security counselorin telling the other security counselor who’s merely doing his job, breaking up a fight. - That’s all he’s doing, he’s doing his job, “Tl put a bullet in your head.” I know Mr. France didn’t take that seriously but after looking at someofthe things that were done on Maxson Road that night you may realize that when [appellant] makes that kind of statement he meansbusiness. I’m sure the defense will say that that was the actions of a young man that was made becausehe wasina fight. Ladies and gentlemen, I want you to think aboutthis reasonably when you’rein a fight that’s — you may well assumethe result of some type of gang dispute and it’s broken up — MR. BESTARD:Objection, your honor, there’s no testimony that was a gang dispute. THE COURT:Sustained. The jury’s admonished to disregard that remarks. MR. MONAGHAN:I’1l rephrase it. Whenyou’re involvedin a fight, with a man that has death heads on his body during the fight. MR. BESTARD:Objection. No testimony that he had Sangra or death heads on his body duringthefight. THE COURT:Sustained. 304 MR. MONAGHAN:Weknow now[appellant] had tattoos on his back. You saw the tattoo. The death head is holding what appears to be a sawed-off type of shotgun on his back. That’s the real Richard Valdez whotells a security counselor who’s merely doing his job, “You’re mybitch.” That’s the real [appellant], the manipulative [appellant] that wants to intimidate. That statement that day, whether Mr. France took it seriously or not, tells you, ladies and gentlemen,quite a bit about [appellant]. How manytimes have you been in a dispute or a fight even as children where you makethat kind of statement to a security counselor and thentell another security counselor you are going to put a bullet in his head? No,ladies and gentlemen,the actions that day clearly show [appellant]. They show him in his element, and his element is an element that he chose willingly and knowingly. It’s an element where he is a memberof a gang and will carry out whatever benefits that gang. (40 RT 4285-4288.) Thus, the prosecutor’s own argument demonstrates the importanceof this erroneously-admitted evidence to his case. (See Kyles v. Whitley (1995) 514 US. 419, 444.) Admission of this improper rebuttal testimony wascertainly not harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) The jury’s weighing of aggravating and mitigating factors in determining death orlife imprisonmentis subject to Eighth Amendment scrutiny. (See, e.g., Sochor v. Florida (1992) 504 U.S. 527 [Eighth Amendmentviolation occurred where sentencer weighed invalid aggravating factor].) Similarly, jury consideration of “factors that are constitutionally impermissible or totally irrelevant to the sentencing process” (Zant v. Stephens (1983) 462 U.S. 862, 884-885), undermine the heightened needfor reliability in the penalty phase sentencing determination (Johnson v. Mississippi, supra, 486 U.S. at p. 585). Here, because there was no other evidencerelated to aggravating factor(b), the 305 improper admission of France’s testimony allowedthe jury to consider an invalid aggravating factor in its sentencing determination, in violation of the Eighth Amendment. Reversal of the death judgmentis required. i // 306 14. THE TRIAL COURT FAILED TO INSTRUCT THE JURORS WITH CALJIC NO. 8.87 AFTER THE PROSECUTOR URGED THE JURY TO CONSIDER EVIDENCE OF THREATSAS FACTOR(B) EVIDENCE Asset forth in the preceding argument (Argmt. 13, supra), the trial court admitted testimony from Anthony France, a school counselor at San Gabriel High School, about threats appellant made as an 18-year-old high school student in connection with a fight on school grounds. During his closing argumentat the penalty phase, the prosecutor arguedto the jury that it could consider evidence of the incident admitted in rebuttal as an | aggravating factor undersection 190.3, factor (b). This Court has consistently held that jurors mustbe instructed that before prosecution evidence may be considered in aggravation under “factor (b),” they must find beyond a reasonable doubtthat the defendant’s conduct constituted commission of an actual crime, and thatthe trial court mustso instruct the jury sua sponte. Here, notwithstanding the prosecutor’s explicit argumentto the jury that it could use evidence of appellant’s threats against France as a basis to impose death,thetrial court failed to instruct the jury that it could only consider such evidence in aggravation if the jurors found, beyond a reasonable doubt, that the defendant’s conduct constituted commission of a crime involving “the express or implied threat to use force or violence.” Consequently, the jury was allowed to consider evidence of the incident at San Gabriel High Schoolas an aggravating factor, even thoughit did not amountto a violation of any penal statute. Because the prosecution presented no other evidencerelated to “factor (b),” and because the 307 prosecution failed to present proof beyond a reasonable doubtthat the threats appellant allegedly made during the incident at San Gabriel High School amountedto “criminal activity” in violation of a penalstatute, the trial court’s failure to appropriately instruct the jury necessarily skewed the jury’s weighing of aggravating and mitigating factors. Reversalof the death judgmentis required. A. Proceedings Below The procedural backgroundset forth in Argument13, supra,is herein incorporatedin its entirety by reference. During his closing argumentat the penalty phase, the prosecutor told the jurors that the trial court would instruct them that in determining penalty they “shall consider all of the evidence which has been received during any part ofthetrial,” and that they “shall consider, take into account, and be guided by”the factors undersection 190.3, including so-called “factor (b).” (40 RT 4284-4285.) With respectto factor (b), the prosecutor argued that the jury had heard “the testimony this morning of France regarding [appellant] and what happenedat the San Gabriel High School.” (40 RT - 4285.) Thetrial court instructed the jury that in determining which penalty should be imposed,it “shall consider all of the evidence which has been received during any partof thetrial” and “shall consider, take into account, and be guided by the following factors,” including “ the presence or absence of criminal activity by the defendant which involvedthe use or attempted use of force or violence or the express or implied threat to use force or violence.” (41 RT 4346; VII CT 1850; CALJIC No.8.85,italics 308 added.) Thetrial court did not include CALJIC No.8.87 as part of its penalty-phasejury instructions.”! B. Evidence of Appellant’s Threats to School Officials Was Not Admissible as Factor (b) Evidence Because Appellant’s Conduct Did Not Constitute Criminal Activity in Violation of any Penal Statute Atthe penalty phase of a capital case, the jury is directed to consider evidence “of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” (§ 190.3, factor (b).) This Court has consistently held “that evidenceofothercriminal activity” underfactor (b) “mustbe limited to evidence of conduct that demonstrates the commission of an actual crime, specifically, the violation of a penal statute.” (People v. Phillips (1985) 41 Cal.3d 29, 72; accord,e.g., People v. Wright (1990) 52 Cal.3d *! CALJIC No.8.87 (Penalty Trial — Other Criminal Activity — Proof Beyond a Reasonable Doubt) readsas follows: Evidence has been introduced for the purpose of showing that the defendant has committed the following criminal [act[s]] [activity]: which involved [the express or implied use of force or violence] [or] [the threat of force or violence]. Before a jury may consider any criminal [act[s]] [activity] as an aggravating circumstancein this case, a juror mustfirst be satisfied , beyond a reasonable doubtthat the defendant did in fact commit the criminal [act[s]}] [activity]. A juror may not consider any evidence of any criminal[act[s]] [activity] as an aggravating circumstance. It is not necessary for all jurors to agree. If any juroris convinced beyonda reasonable doubtthat the criminal activity occurred, that juror may considerthat activity as a fact in aggravation. If a juror is not so convinced,that juror must not consider that evidence for any purpose. 309 367, 426.) Because of the requirement of reasonable-doubtinstructionsfor proof of uncharged chargesat the penalty phase (see People v. Robertson (1982) 33 Cal.3d 21, 53-55),the trial court may “not permit the penalty jury 66666 to consider an uncharged crimeas an aggravating factor unless a “‘“rational trierof fact could have foundthe essential elements of the crime beyond a reasonable doubt.””” (People v. Boyd, supra, 38 Cal.3d at p. 778, quoting Jacksonv. Virginia, supra, 443 U.S. at pp. 318-319, and People v. Johnson (1980) 26 Cal.3d 557, 576.) Underthese standards, the prosecution’s evidence of appellant’s threats during the incident at San Gabriel High School was not admissible underfactor (b) as a matter of law because appellant’s conduct did not constitute “criminal activity”in violation of} any penal statute. In orderto demonstrate this, it is necessary to consider whether the prosecution’s evidence established that appellant violated one of two Penal Codestatutes: Section 422, penalizing “criminalthreats,” and section 71, penalizing threats against public officers, employees, and schoolofficials. Penal Code section 422 defines the making of “criminal threats” as a crime, and providesin pertinent part: . Any person whowillfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic . communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and underthe circumstancesin whichit is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonablyto be in sustained fear for his or her own safety or for his or her immediate family’s safety, 310 shall be punished by imprisonmentin the county jail not to exceed one year, or by imprisonment in the state prison. (§ 422.) Thus, to sustain a conviction for making a criminal threat pursuant to section 422, the prosecution must establish five elements: (1) [T]hat the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,” (2) that the defendant madethe threat “‘with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out,” (3) that the threat-which may be “madeverbally... [.]” was “on its face and underthe circumstances in whichit [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened,a gravity of purpose and an immediate prospect of execution of the threat,”(4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family’s safety,” and (5) that the threatened person’s fear was “reasonabl[e]” under the circumstances. . (People v. Toledo (2001) 26 Cal.4th 221, 227-228, citing Peoplev. Bolin (1998) 18 Cal.4th 297, 337-340 & fn. 13; see also People v. Butler (2002) 85 Cal.App.4th 745, 753; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536; People v. Garrett (1994) 30 Cal.App.4th 962, 966.) - Section 422 requires the threat be such as to cause a reasonable personto bein “sustained fear” for his or her personal safety or for that of his or her family. “The phrase to ‘cause[ ] that person reasonably to be in sustained fear for his or her own safety’ has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139-1140.) A fear is sustained whenit 311 “extends beyond what is momentary,fleeting, or transitory.” (Peoplev. Allen (1995) 33 Cal.App.4th 1149, 1156.) Section 422 “was not enacted to punish emotionaloutbursts,it targets only those whotry to instill fear in others.” (People v. Felix (2001) 92 Cal.App.4th 905, 913.) In other words, the statute does not punish such conductas “mere angry utterances or ranting soliloquies, howeverviolent.” (People v. Teal (1998) 61 Cal.App.4th 277, 281.) Thecase ofin In re Ricky T., supra, 87 Cal.App.4th at pp. 1135- 1138, is instructive. In that case, the 16-year-old defendantleft his classroom to use the restroom and found the classroom door locked when he returned. (/d. at p. 1135.) The defendant began pounding onthe door. (Ibid.) Whena teacher openedit, the defendant wasstruck by the door. (Ibid.) The defendant becameangry,cursed the teacher, and said “I’m going to get you”or “I’m going to kick yourass.” (/d. at pp. 1135-1136.) The teacher felt physically threatened and sent the student to the school office. (/d. at p. 1135.) The following day, the student was interviewed by the police and admitted speaking angrily and “getting in [the teacher’s] face.” (Ibid.) There was no evidence that the defendanthad previously quarreled with or showed physical violence toward the teacher(id.at p. 1138), or that he did anything to “further the act of aggression.” (Id. at p. 1135.) The student received a five-day suspension for the threat. ([bid.) The Court of Appeal concluded that the record wasinsufficient to support thetrial court’s finding that the defendant’s conductviolated section 422 because, judged in context, the defendant’s threats “lack[ed] credibility as indications of serious, deliberate statements of purpose.” (Jd. at p. 1137.) The Court of Appeal noted that the nature of each threat cannot be “determined only at face value” but must be examined “ ‘on its face and 312 underthe circumstances in which it was made.” (/bid.) With respect to the defendant’s threat against the teacher, the Court of Appeal observed: (1) the threat was madein the context of the student becoming angry after he was struck by the door, and the student’s “intemperate, rude, and insolent remarks hardly suggest any gravity of purpose”(id. at p. 1138); (2) there wasno evidence “that appellant’s angry words were accompanied by any show of physical violence — nothing indicating any pushing or shoving or other close-up physical confrontation”(id. at p. 1138); and (3) the juvenile court acquitted the student of the section 71 (threat against public official) charge,also a specific intent crime proscribing “threats the recipient reasonably believes could be accomplished.” (Jd. at p. 1139.) The Court of Appeal concludedthat the defendant’s statement was no more than a vague threat of retaliation without prospect of actual execution, and thus that there wasinsufficient evidence of a genuine threat punishable under section 4272. (Ibid.) Finally, the Court of Appeal foundthat, notwithstanding the fact that the teacher claimedthat he felt physically threatened, there was insufficient evidencethat the victim wasin “sustained fear.” (/d. at p. 1140.) The Court of Appeal observedthat the police were not called until the following day, and thus any fearthat the teacher felt “[a]pparently . . . did not exist beyond the moments of the encounter.” (/bid.) Here, as in Ricky T., the prosecution presented insufficient evidence to establish that appellant’s statements had “credibility as indications of serious, deliberate statements of purpose.” As in Ricky T., appellant’s statements were madein the heat of the moment, in response to perceived provocation, and were “no more than a vaguethreatof retaliation without prospect of execution.” There was no evidence to suggest that appellant 313 and the school counselors had anyprior history of conflict, and appellant’s angry words were not accompanied by any show ofphysical violence. In addition, as in Ricky T., there was no evidence that appellant did anything subsequently to “further the act of aggression.” Finally, Francetestified that he did not take appellant’s threat seriously (40 RT 4256), and thus there waseven less evidencein this case of the requisite “sustained fear” than waspresent in Ricky T., where the teachertestified that he felt physically threatened. The other Penal Code section that must be considered in this context is section 71, which providesthat certain threats against public officers, employees, and schoolofficials are punishable as misdemeanors. The pertinent parts of that section provide:: Every person who, with intent to cause, attempts to cause, or causes, any officer or employee of any public or private educationalinstitution or any public officer or employeeto do, or refrain from doing, any act in the performanceofhis duties, by meansofa threat, directly communicated to such person,to inflict an unlawful injury upon any person or property, and it reasonably appearsto the recipient of the threat that such threat could be carried out, is guilty of a public offense... . (§ 422.) The elements of a violation of section 71 are as follows: “‘“(1) A threat to inflict an unlawful injury upon any person or property; (2) direct communication of the threat to a public officer or employee; (3) the intent to influence the performanceofthe officer or employee's official duties; and 9 6(4) the apparentability to carry out the threat.” [Citations.]” Un re Ernesto H. (2004) 125 Cal.App.4th 298, 308.) The purpose ofsection71 is to prevent threatening communicationsto public officers or employees 314 designed to extort their action or inaction. (In re Ernesto H., supra, 125 Cal.App.4th at p. 308.) As with section 422, a“true threat” under section ce 671 is one ‘where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violenceto a particular individual or group of individuals .’ ” ( In re Ernesto H., at p. 310, quoting Virginia v. Black (2003) 538 U.S. 343, 359.) Ina series of decisions this Court has found that evidence of verbal threats by the defendant — made under circumstancesindistinguishable from this case — was not properly admitted in aggravation underfactor (b) because the defendant’s conduct did not constitute a violation of section 71. For example, in People v. Wright, supra, 52 Cal.3d at pp. 425-429,this Court held thata series of threats that the defendant made while in prison — including one in which he threateneda correctional officer that the officer’s “body” would be the next one foundin an area where an inmate’s dead body had been found 15 minutes earlier — were inadmissible under People v. Boyd, supra. This Court held that such purported factor (b) evidence, though involving the express or implied threats to use force or violence, “was nevertheless excludable because the violent acts or threats of violence did not amountto ‘criminal activity’ in violation of a penal statute.” (/d. at p. 426.) Similarly, in People v. Rodrigues (1994) 8 Cal.4th 1060, a correctional officer testified that when he sought to have the defendant removed from his food-serving assignment, the defendant verbally abused him and threatened to “kick [his] ass.” (/d. at p. 1169.) This Court did not directly decide the admissibility issue, instead concluding that “any erroneous admission of the evidence was harmless.” (Id. at p. 1170.) Itis revealing, however, that, while not conceding that the threat evidence was 315 inadmissible, “the Attorney General [made] no attempt to argue that the... incident constituted conductproperly falling under section 190.3, factor (b), or that there was substantial evidence in the record of a Penal Code violation.” (lbid.) Finally, in People v. Tuilaepa (1992) 4 Cal.4th 569 — a case involving an incidentthat is factually and legally indistinguishable from the one at bar — the defendant made “several outbursts while in CYA custody,” including “sexual taunts and death threats” against two female prison employees and threats to burn the face of a male employee who had reprimanded him. (/d. at p. 589-590.) This Court held that this evidence had been erroneously admitted because “[t]here was no substantial showing that defendant harbored the requisite intent — interfering with the performanceofofficial duties — or that his statements had the requisite effect — creating a reliable belief the threat would be carried out.” (/d. at p. ~ 590.) In so ruling, this Court noted that the recipients of the threats ‘““ndicated that they did not actually fear for their safety,” that the defendant “had no apparenthistory of attacking or injuring CYAofficials,” and that “this response to [the male employee’s] criticism was obviously intended as an angry retort.” (lbid.) In this case, as in Tuilaepa, the recipient of the threat did not take it seriously. (40 RT 4256.) Moreover, appellant had no history of violence or threats against school security officers (compare People v. Gaut (2002) 95 Cal.App.4th 1425, 1431), and his statements obviously were madein, and the product of, anger. As defense counsel cogently noted, France “‘said he didn’t take this [seriously] and there was no demonstrationthatthis is criminal activity. This was a hot-headed studentafter a fight makingidle threats and that’s the most that it had arisen to.... There was no 316 demonstration of an arrest . . . resulting [from] that. There was no demonstration of a [prosecution] that resulted from that, and there was no demonstration the victim took it serious[{ly] in any manner, shape, or form and he did this only as part of his duties as a security guard.” (40 RT 4278- 4279.) In short, the prosecution seized upon, and was unfairly allowed to use, evidence of conduct that was not admissible under any statutory aggravating factor to obtain a death verdict against appellant. This Court in Boyd, supra, could have been describing the case at bench whenit warned: “Whenthe prosecution is permitted to introduce such evidence the penalty trial can become a spectacle in which witnesses recount numerous trivial incidents of misconductandill temper.” (People v. Boyd, supra, 38 Cal.3d at p. 774.) The jury’s consideration of such non-statutory aggravation violated California law. ([d.at p. 777; People v. Tuilaepa, supra, 4 Cal.4th at p. 590.) Its use arbitrarily deprived appellant ofhis right to have his sentence determined without consideration of such evidence in violation of due process. (U.S. Const., 14th Amend.; see, e.g., Hicks v. Oklahoma,supra, 447 U.S. at p. 346.) Moreover, the jury’s consideration of “factors that are constitutionally impermissible or totally irrelevant to the sentencing process” (Zant v. Stephens, supra, 462 U.S. at p. 885) underminedthe heightened need for reliability in the determination that death is the appropriate penalty ( U.S. Const., 8th & 14th Amends.) and requires reversal of the death judgment(see, e.g., Johnson v. Mississippi, supra, 486 U.S.at p. 585). 317 C. The Trial Court Erroneously Failed to Instruct the Jury with CALJIC No. 8.87 After the Prosecutor Argued That the Jury Could Consider Appellant’s Threats to School Officials as an Aggravating Factor Pursuant to Section 190.3, Factor (b) This Court has consistently held that jurors must be instructed that before prosecution evidenceof other criminal activity involving “the express or implied use of force or violence” may be consideredin aggravation under section 190.3, factor (b), the jurors must first be satisfied beyond a reasonable doubtthat the defendant committed such crimes. (People v. Avena (1996) 13 Cal.4th 394, 429.) Such an instruction is “required by state law.” (People v. Avena, supra, 13 Cal.4th at p. 429.) Consequently, this Court has held that the trial court should so instruct the jury sua sponte. (People v. Robertson, supra, 33 Cal.3d at pp., and fn. 19; People v. Stanworth (1969) 71 Cal.2d 820, 840; People v. Polk (1965) 63 Cal.2d 443, 452; Use Note to CALJIC No. 8.87 [“Thisinstruction must be given sua sponte in all cases where the People claim any criminal activity and especially where CALJIC No.8.85, subparagraph(c), is given.”’].) Here, notwithstanding the fact that the prosecutor urged the jury to consider France’s testimony aboutthe incident at San Gabriel High School as aggravating evidence pursuantto section 190.3, factor (b), the trial court failed to instruct the jury sua sponte that a juror could not consider the evidence of such “criminal activity” unless he or she first concluded beyond a reasonable doubt that the defendant committed such crimes. Thetrial court’sfailure to give this “required” instruction waserror. The record in this case is similar to that in People v. Robertson, supra, 33 Cal.3d 21. In Robertson, the prosecution introduced evidence 318 during the guilt phase from whichthe jury could find that the defendant had committed other violent crimesin the past. (33 Cal.3d at p. 53.) While the prosecution did not introduce any additional “other crimes” evidence at the penalty phase,the trial court instructed the jury that it could consider evidence admitted “at all phases of the trial proceedings” in reachingits penalty determination. (/bid.) In addition, the jury received aninstruction that it should “take into account . . . the presence or absence ofcriminal activity by the defendant whichinvolvedthe use or attempteduseof force or violence or the express or implied threat to use force or violence.” (Ibid.) This Court found that the trial court committed prejudicial error in failing to instruct the jury sua sponte that in determining penalty it could not. properly consider the “other crimes” evidence as aggravating circumstances unless it first found that these crimes had been proven beyond a reasonable doubt. (Ibid.) The Court observed that more than a decadeearlierit had held that “ ‘[i]t is now settled that a defendant during the penalty phase of a trial is entitled to an instruction to the effect that the jury may consider evidence of other crimes only when the commission of such other crimesis 7 99proved beyond a reasonable doubt.’ (/bid., quoting People v. Stanworth, supra, 71 Cal.2d at p. 840.) The Court reaffirmed that “such an instruction is ‘vital to a proper consideration of the evidence, and the court should so instruct sua sponte.’ ” (Ibid., quoting Stanworth,at p. 841.) Asin Robertson, in this case the prosecution did not introduce evidence of other crimesin its case-in-chief at the penalty phase, yet the trial court’s instructions directed the jury to “consider all of the evidence whichhas been received during any part ofthetrial” with respect to the aggravating factors set forth in section 190.3. (41 RT 4346; VII CT 1850; CALJIC No.8.85, italics added.) Moreover,in his closing argumentat the 319 penalty phase, the prosecutor explicitly urged the jury to consider “the testimony this morning of France regarding [appellant] and what happened at the San Gabriel High School”asit related to section 190.3, factor (b). (40 RT 4285.) Robertson makesclear thatit is immaterial that the prosecution did not present France’s testimonyin its case-in-chief at the penalty phase. All that mattersis that the “prosecution introduced evidence from which the jury could find”that appellant had engaged in other | “criminal activity” that involved “the express or implied threat to use force or violence.” (People v. Robertson, supra, 33 Cal.3d at p. 53.) Because such evidence was presentedto the jury, and becausethetrial court instructed the jury that it “shall considerall of the evidence which has been received during any part of thetrial” withrespect to the statutory aggravating factors, the trial court was required to instruct the jury sua sponte that a juror could not properly consider the “other crimes” evidence as an aggravating factor unlessheorshe first found beyond a reasonable doubtthat the defendant’s conduct constituted commission of an actual crime. (/bid.) Consequently, thetrial court’s failure to give the jury this “required” instruction waserror. (People v. Avena, supra, 13 Cal.4th at p. 429.) D. Reversal of the Death Judgment is Required This Court has previously held that a trial court’s failure to instruct the jury about“other crimes” evidence is subject to harmless error analysis (People v. Avena, supra, 13 Cal.4th at pp. 430-432; People v. Pinholster (1992) 1 Cal.4th 865, 965; People v. Hardy, supra, 2 Cal.4th at p. 205), specifically, whetherit is “reasonably possible” the failure to instruct affected the verdict. (People v. Brown (1988) 46 Cal.3d 432, 446-449; 320 People v. Wright, supra, 52 Cal.3d at p. 438 (applying the Brown “reasonable possibility” standard). In People v. Robertson, supra, this Court concludedthat, on the facts of that case, the failure to provide the jury with appropriate instruction as to its consideration of “other crimes” evidence “must be considered prejudicial.” As this Court reasoned: In light of the broad discretion exercised by the jury at the penalty phase of a capital case the difficulty in ascertaining “[t]he precise point which prompts the [death] penalty in the mind of any one juror” (People v. Hines (1964) 61 Cal.2d 164, 169 [. . .]), past decisions establish that “any substantial error occurring during the penalty phase of the trial... must be deemed to have been prejudicial.” (Peoplev. Hamilton (1963) 60 Cal.2d 105, 135-137[. . .]; People v. Hines, supra, 61 Cal.2d at pp. 168-170.) Here,the potential for prejudice wasparticularly serious becausethe error in question significantly affected the jury’s consideration of “other crimes” evidence, a type of evidence whichthis court long ago recognized “may have particularly damaging impact on the jury’s determination whether the defendant should be executed.” (People v. Polk, supra, 63 Cal.2d at p. 450.) (Robertson, supra, 33 Cal.3dat p. 54 [parallel citations omitted].) In contrast, in People v. Avena, supra, this Court found “Robertson error” harmless, but only because the prosecution proved beyond a reasonable doubtthat the defendant committed each of the “other crimes”at issue. Significantly, in Avena, the People urged this Court to find the instructional error harmless becauseatleast one of the incidents “wastrivial when compared to the charged offenses and the other crimes,”butthis Court declined to find the error harmless for that reason. (Avena, supra, 13 Cal.4th at pp. 433-435.) Instead, the Court assessed the strength of the evidence presented by the prosecution to establish each of the other crimes 321 before the jury and concludedthatthe instructional error was harmless because it was “not reasonably possible [that] a properly instructed jury would have entertained a reasonable doubt”that the defendant committed each of the “other crimes” at issue. (Jd. at pp. 434-435.) In this case, there can be no question that a properly instructed jury would have entertained a reasonable doubt that appellant committed any crime because, as demonstrated above, appellant’s conduct during the incident at San Gabriel High Schooldid not constitute a violation of section 422, section 71, or any other penal statute. Moreover, other than France’s testimony aboutthe incident at San Gabriel High School, the prosecution presented no evidence whatsoever that the jury could have deemedrelevant to “factor (b).” Thus, the improperly-considered evidence wasnot cumulative of other properly- admitted factor (b) evidence, andthetrial court’s failure to appropriately instruct the jury necessarily skewed the jury’s weighing of aggravating and mitigating factors. (Compare People v. Tuilaepa, supra, 4 Cal.4th at p. 589 [error in allowing jury to consider threats as factor (b) evidence was . harmless where the evidence was cumulative of other “evidence properly admitted in aggravation”].) Under these circumstances, it is reasonably possible that appellant would have obtained a more favorable result had the jury been properly charged on consideration of evidence of other criminal activity involving “the express or implied threat to use force or violence,” requiring reversal | of the death judgment understate law. (See People v. Brown, supra, 46 Cal.3d at pp. 446-448 [penalty phaseerror is prejudicial where there is a “reasonable possibility” of a more favorable verdict absentthe error].) The trial court’s failure to give the necessary instruction allowedthe jury to 322 consider evidence in aggravation even though appellant’s conduct did not constitute a violation of a penal statute. Further, the evidence was not cumulative of any other properly-admitted factor (b) evidence. Asin Robertson,“the potential for prejudice wasparticularly serious because the error in question significantly affected the jury’s consideration of ‘other crimes’ evidence, a type of evidence which this court long ago recognized ‘may have a particularly damaging impact on the jury’s determination 999whether the defendant should be executed.’” (People v. Robertson, supra, 33 Cal.3d at p. 54.) This Court “cannot gamble life on the possibility that the evidence” had no effect on the jury at the penalty phase. (Peoplev. Robertson, supra, 33 Cal.3d at p. 54.) Reversal of the death judgmentis required. / H 323 15 THE TRIAL COURT VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS AND PREJUDICIALLY ERREDBY FAILING TO SPECIFICALLY REINSTRUCT THE JURY WITH GUILT-PHASE INSTRUCTIONS WHICH WERE RELEVANT TO THE EVALUATION OF THE EVIDENCE AT THE PENALTY PHASE AND BY INSTRUCTING THE JURY THAT THEY COULD APPLY THEIR “COMMON SENSE” TO IDENTIFY OTHER PREVIOUSLY GIVEN INSTRUCTIONS THAT THEY COULD DEEM INAPPLICABLE TO THE PENALTY PHASE A. Introduction A trial court has a sua sponte dutyto instruct on the “general principles relating to the evaluation of evidence.” (People v. Daniels (1991) 52 Cal.3d 815, 885; see also People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884 [credibility of witnesses]; People v. Yrigoyen (1955) ) 45 Cal.2d 46, 49 [circumstantial evidence]; People v. Reeder (1976) 65 Cal.App.3d 235, 241 [expert testimony].)) “An instruction is necessary if it is vital to a proper consideration of the evidence by the jury. [Citations.]” (People v. Putnam (1942) 20 Cal.2d 885, 890.) Adequate instructions are especially important at the penalty phase of a capital case, where a heightened degreeofreliability is required. (Walton v. Arizona (1990) 497 U.S. 639, 653; Mills v. Maryland (1988) 486 U.S. 367, 383-384.) It is essential that capital sentencing “‘bereliable, accurate, and nonarbitrary. [Citations.]” (Saffle v. Parks (1990) 494 U.S. 484, 493.) In this case, the trial court did not reinstruct the jurors with any of the instructions that were previously given at the guilt phase that were neededto insure that the penalty jurors knew howthey should evaluate the 324 evidence before them. Worseyet, the trial court prefaced its reading of the penalty phase jury instructions by telling the jurors that while “generally speaking”all but three of the instructions previously given at the guilt phase were applicable in the penalty phase, “there may be a couple of others that you'll find by just applying commonsense. . . are just not applicable.” (41 RT 4344-4345.) | | Amongthe instructions which should have been — but were not — delivered at the penalty phase were CALJIC No.1.02 (statements of counsel are not evidence); CALJIC No.2.20 (evaluating the credibility of witnesses), CALJIC No. 2.27 (sufficiency of testimony of one witness); and CALJIC No.2.60 (defendantnottestifying — no inference of guilt may be drawn). | . Thetrial court’s failure to re-instruct the jury as to the applicable law at the penalty phase left the jury without essential guidance regarding the standards they should use in evaluating the evidence. Further, the trial court not only abdicated its duty to instruct the jurors but, by informing the jurors that they mayfind that “a couple of other[{]” jury instructions were “just not applicable,” improperly delegated to the jury the responsibility to divine the applicable law. Such a cavalier approach to jury instruction at the penalty phaseofa capital trial cannot be squared with the Eighth Amendment. As a result, appellant was denied his right to an accurate andreliable jury determination of his punishment (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16), his right to a fair and reliable penalty determination (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, § 17), and his right to due process of law (U.S. Const., 14th Amend.; Cal. Const., art. I, § 15). 325 B. Proceedings Below Prior to instructing the jury at the penalty phase,the trial court asked the parties if they agreed thatall of the jury instructions that had been given at the guilt phase were applicable to the penalty phase, with the exception of the instructions that the jury may not consider sympathy toward the defendant,” and may not considerpenalty or punishments.” Asthe court inquired of the parties: Am I correctthat all of the jury instructions givenin thefirst phase would apply to the second phase with two exceptions: one[,] that in the first phase they were instructed that sympathy could not be considered and that is something they may consider now andalso they wereinstructed that in coming to [—] in determining the issues of guilt phase they could not consider penalty or punishmentand that, obviously, is the whole purposeof this phase? Mybeliefis that all of the other instructions [—] to the extent that they apply, there may be somethat don’t, but I don’t thinkit’s confusing to justtell the jury thatall the previous instructions do apply with those two exceptions. (41 RT 4330-4331.) The prosecutor respondedthathe believed the reasonable doubt ‘instruction also did not apply, and that “at least from the defense perspective the circumstantial evidence instruction” did not apply. (41 RT ” At the guilt phase, the jury received CALJIC No. 1.00, which reads in relevant part: “You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” (VI CT 1710; 27 RT 3350.) 3 At the guilt phase, the jury received CALJIC No. 8.83.2, which reads: “In your deliberations the subject of penalty or punishmentis not to be discussed or considered by you. That is a matter which must not in any wayaffect your verdict or affect your finding as to the special circumstancesalleged in this case.” (VI CT 1750; 27 RT 3377.) 326 4331.) He suggested that the court “simplytell[] them that they certainly can now consider sympathy andthey certainly can consider penalty or punishmentandthat they can considerthe restof the instructions that have previously been given as they feel they apply.” (41 RT 4331.) Both defense counsel indicated that they “agree[d] with that.” (41 RT 4331.) For reasonsthat are not apparent from the record,the trial court omitted from the penalty phase jury instructions CALJIC No. 8.84.1, which sets forth general instructions about the law applicable to the penalty phase of the trial and instructs the jury not to be “influenced by bias nor prejudice against the defendant, nor swayed by public opinion or public feeling.”** In addition,the trial court prefaced its reading of the penalty phase jury instructions with the following apparently improvised oral statement to the jury: % CALJIC No. 8.84.1 (Duty of Jury — Penalty Proceeding) reads as follows: ; You will now be instructed asto all of the law that applies to the penalty phaseofthistrial. You must determine whatthe facts are from the evidence received during the entire trial unless you are instructed otherwise. You must accept and follow the law that I shall state to you. Disregardall other instructions given to you in other phasesofthistrial. You must neither be influenced by bias nor prejudice against the defendant, nor swayed by public opinion or public feelings. Both the People and the defendant have a right to expect that you will consider all of the evidence, follow the law, exercise your discretion conscientiously, and reach a just verdict. 327 Generally speaking,all of the instructions I gave you in the first phase you may considerto the extent that they’re applicable in this phase and I am notgoingto re-readall of those instructions. There are several areas that don’t apply. Forinstance,I told you in the first phase that you could not consider sympathy for a defendantin determining guilt. In - this phase you may if you deem it to be appropriate, consider sympathy in selecting your verdict. In the first phase I told you that you could not in determining guilt or innocence of a defendant consideror take in — any way take into consideration punishment. Obviously, that’s the whole focus of your attention in this case. AndI also told you of the standard of proofin the first case was proof beyond a reasonable doubt. That instruction does not apply to this phase. And there may be a couple of others that you’!l find by just applying commonsenseor are just not applicable. (41 RT 4344-4345.) The court did notreinstruct the jury asto any of the instructions that had previously been given at the guilt phase. C. The Trial Court Erred byFailing to Include CALJIC No. 8.84.1 in the Penalty Phase Jury Instructions, By Failing to Expressly Instruct the Jury Which of the Previously Given Instructions Continued to Apply at the Penalty Phase,and By Instructing the Jury That They Were Free - to Use Their “CommonSense”to Identify Other Guilt- Phase Instructions That Were Inapplicable to the Penalty Phase The trial court has a sua sponte duty to instruct on general concepts of law. (People v. Babbitt (1988) 45 Cal.3d 660, 718.) Because the introductory instructions for the guilt phase contain concepts that do not apply to the penalty phase, the court must clarify for the jury which instructions apply to the penalty phase. (People v. Weaver (2001) 26 Cal.4th 876, 982; Babbitt, at p. 718, fn. 26.) 328 In People v. Babbitt, supra, this Court admonishedthat “[t]o avoid _ any possible confusionin future cases,trial courts should expressly inform the jury at the penalty phase whichofthe instructions previously given continue to apply.” (45 Cal.3d at p. 718, fn. 26.) CALJIC No. 8.84.1 was subsequently amended in 1989 to provide that the penalty jury should “[d]isregard all other instructions given to you in other phasesofthistrial.” The Use Note to CALJIC No.8.84.1 states: “[This instruction] should be followed by all appropriate instructions beginning with CALJIC [No.] 1.01, concluding with CALJIC[No.] 8.88. [{] Our recommendedprocedure may be more cumbersomethan the suggestion advancedin footnote number 26 [of Babbitt, supra, 45 Cal.3d at p. 718], but the Committee believesit is less likely to result in confusion to the jury.” (See People v. Weaver, supra, 26 Cal.4th at p. 982; cf. People v. Carter (2003) 30 Cal.4th 1166, 1222 [“we strongly caution trial courts not to dispense with penalty phase evidentiary instructions in the future’’].) Here, the trial court not only failed to include CALJIC No.8.84.1 in | the penalty phasejury instructions butalso failed to “expressly inform the jury at the penalty phase which of the instructions previously given continue to apply.” (Babbitt, supra, 45 Cal.3d at p. 718, fn. 26.) Instead,the trial court advised the jury that “[g]Jenerally speaking, all of the instructions I gave you in the first phase you may considerto the extent that they’re applicable in this phase,” with the specific exceptions of: (1) the “anti- sympathy”instruction; (2) the instruction not to consider penalty; and (3) the instruction concerning proof beyond a reasonable doubt. The court also told the jury that “there may be a couple of other” guilt-phase instructions that the jury would “find by just applying commonsense”that “are just not applicable.” (41 RT 4344-4345.) 329 Thetrial court’s oral instruction clearly violated this Court’s unequivocal admonition in Babbitt to expressly tell the jurors which of the previously-given instructions continue to apply, an omission which this Court has deemed “potentially misleading.” (People v. Weaver, supra, 26 Cal.4th at p. 982.) Here, “the possibility of confusion”(id. at p. 983) becamea reality, to appellant’s substantial detriment. Thetrial court’s statement that“there may be a couple of other[]” guilt-phase jury instructions that were inapplicable to the penalty phaseleft the jurors to their own devices to determine the applicable law at the penalty phase. It cannot reasonably be concludedthat the jurors could or did successfully engagein this inherently judicialtask. Moreover, there were instructions that were givenat the guilt phase that were vital to the penalty determination which the jurors could reasonably have believed did not apply to the penalty phase. (Babbitt, supra, 45 Cal.3d at p. 718). For example, the jurors might reasonably have concluded that CALJIC No. 2.60 (Defendant NotTestifying — No Inference of Guilt May Be Drawn) did not apply to their penalty determination because, while it is commonly understoodto be a rule of law applicable to a determination of guilt, it would not necessarily also be understood to be applicable to a determination of penalty.” In the event that appellant’s °° CALJIC No.2.60, as given to the jury in the guilt phase, read as follows: “A defendantin a criminaltrial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant doesnottestify. Further, you must neither discuss this matter nor permitit to enter into your deliberations in any way.” (continued...) 330 penalty jurors decided that CALJIC No.2.60 did not apply to their penalty determination, they might then havefelt at liberty to impermissibly draw an adverse inference from the fact that appellant did nottestify at the penalty phase — for example, that he declined to testify because he had things to hide. Finally, error was not waived by appellant. A trial court’s obligation to instruct sua sponte on the generalprinciples of law raised by the evidence and governing the case(see, e.g., People v. St. Martin (1970) 1 Cal.3d 524, 531) is not vitiated by defense counsel’s simple failure to request such instructions (see §§ 1259, 1469; People v. Breverman (1998) 19 Cal.4th 142, 154-155; People v. Wickersham (1982) 32 Cal.3d 307, 330-333). This case is similar in this regard to People v. Moon (2005) 37 Cal.4th 1, 36-39. Asin this case, in Moonthetrial court failed to re-instruct the jury generally regarding the consideration and evaluation of-evidenceat - the penalty phase. On appeal, the People arguedthat the defendant invited the error because defense counsel “joined in the prosecutor's request to retrieve the copies of the guilt phase instructions from the jurors and even asked thetrial court to follow up on that suggestion by directing the jurors.” (Id. at pp. 36-37.) This Court rejected that argument, reasoning as follows: Counsel did not, however, request or invite the trial court to omit from the penalty instructions those instructions he now claims were important. Counsel merely joined in the prosecutor's request to retrieve the written copies of the guilt phaseinstructions from the jury. Under the circumstances, counsel may well have believed that the court would — consistent with CALJIC No. 8.84.1 — later reinstruct the jury with those guilt phase instructions that retained their °° (...continued) (VI CT 1760; 27 RT 3384-3385.) 331 applicability in the penalty phase. Because counsel did not specifically ask the trial court to refrain from reinstructing the jury with the applicable guilt phase instructions, counsel’s actions did not absolvethetrial court of its obligation under the law to instruct the jury on the “general principles of law that [were] closely and openly connectedto the facts and that [were] necessary for the jury's understanding ofthe case.” (Moon, supra, 37 Cal.4th at p. 37, quoting People v. Carter, supra, 30 Cal.4th at p. 1219.) | Here, while defense counsel agreed with the trial court that it had correctly identified several specific guilt-phase instructions which were not applicable to the penalty phase, defense counsel did not “request or invite the trial court to omit from the penalty instructions those instructions he now claims were important.” (People v. Moon, supra, 37 Cal.4th at p. 37.) Consequently, counsel’s actions did not absolvethetrial court of its obligation to instruct the jury on the general principles of law applicable to the penalty phase andthe error has not been waivedin this case. In conclusion, there was more than a “reasonable likelihood”that “the jury misunderstood the instructions” (People v. Weaver, supra, 26 Cal.4th at p. 984) becauseofthetrial court’s failure to specify which of the guilt-phase instructions applied at the penalty phase. Thetrial court’s cavalier approachto jury instruction at the penalty phase rendered the death verdict inherently unreliable in violation of the Eighth and Fourteenth Amendments to the United States Constitution. (See, e.g., Woodson v. North Carolina (1976) 428 U.S. 280, 305; Eddings v. Oklahoma (1982) 455 U.S. 104.) The death judgment musttherefore be reversed. (Chapmanv. California (1969) 386 U.S. 18, 24; People v. Brown (1988) 46 Cal.3d 432, 446-448.) | // 332 16 APPELLANT’S STATUTORY AND CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN HIS AUTOMATIC APPLICATION FOR MODIFICATION OF THE JURY’S DEATH VERDICT WAS DENIED BY A JUDGE WHO DID NOT PRESIDE OVER ANY PORTION OF APPELLANT’S TRIAL, AND WHO FAILED TO REVIEW THE GUILT PHASE TRANSCRIPTS AND ONLY PARTIALLY REVIEWED THE PENALTY PHASE TRANSCRIPTS OF THE TRIAL . A. Introduction Section 190.4, subdivision (e), provides that following a death verdict the defendant is deemedto have applied for modification of that verdict. In ruling on the application, the judge is required to “review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstancesreferred to in Section 190.3,” and “make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.” (§ 190.4, subd. (e).) Such an independentevaluation by the trial courtis also required as a matter of federal constitutional law in order to make “rationally reviewable the process for imposing a sentence of death.” (Woodson v. North Carolina (1976) 428U.S. 280, 303.) When the court does not adequately comply with this statutory mandate, a remand for reconsideration of the application is the appropriate remedy. (People v. Rodriguez (1986) 42 Cal.3d 730, 792.) In appellant’s case, Judge William Trammell, the judge who presided over the entirety of the guilt and penalty phases of appellant’s trial, suddenly and unexpectedlyretired shortly after the jury returned its penalty verdict, but before appellant’s application for modification of verdict could 333 be heard. As a result, Judge Robert Armstrong wasassigned to substitute for Judge Trammell and preside over proceedings related to motions for newtrial and for automatic application for modification of the verdict. Despite the fact that Judge Armstrong had not presided over any of the prior proceedings of appellant’s trial, he only reviewed the transcripts of the penalty phase — and, by his own admission, did not even review those “line by line” — before ruling on appellant’s application for modification of the verdict. Appellant submits that if the death judgmentis not otherwise reversed, a remand for resentencing is required because Judge Armstrong’s lack of familiarity with the full trial record rendered him incapable of fulfilling his statutory responsibility of providing an “independent evaluation”of the jury’s verdict. B. Proceedings Below Judge Trammell was the presiding judge during the guilt and penalty phasesof appellant’s trial. After receiving the jury’s penalty verdicts on December13, 1996, Judge Trammell set sentencing proceedings for February 19, 1997. (VII CT 1883-1884; 42 RT 4377.) However, before that hearing could take place, Judge Trammell abruptly retired from the Los Angeles County Superior Court bench. | On June 11, 1997, the parties appeared before Judge Armstrong for motion for new trial and sentencing proceedings, and for consideration of appellant’s automatic motion for modification of the verdict under section 190.4, subdivision (e). (43 RT 4415-4420.) Judge Armstrongfirst addressed the motion for newtrial filed by co- defendant Palma. (43 RT 4403-4415.) Prior to hearing arguments, Judge Armstrong acknowledged that he had only read the reporter’s transcripts 334 related to the penalty phase, though he had not even read those“line by line”: MR. UHALLEY[counsel for co-defendant Palma]: Has the Court read the transcripts in this matter? THE COURT:I have reviewed them. I haven’t read them line by line. I begged counsel since Marchto cite somelines of the transcript to me, becauseit is rather voluminous. But J have read the parts that had to do with penalty, and I have read the parts that had to do with deliberation.. . . (43 RT 4408,italics added.) After he denied Palma’s motion for newtrial, Judge Armstrong turned to the automatic motions to modify the penalty verdicts. (43 RT 4415.) The judge again stated for the record that he had only read the transcripts of the penalty phasein preparation for the hearing on the motion to modify the verdict: “The Court has read the transcript of the proceedings in which the — on the penalty phaseofthetrial, and I’ve also read the material that’s been submitted by Mr. Uhalley.” (43 RT 4416.) Counsel for co-defendant Palma submitted on his moving papers and asked Judge Armstrong to “make an independent judgment and weigh the evidenceasit waspresented in that penalty phase.” (43 RT 4416.) The prosecutor responded by providing Judge Armstrong with a brief summary of what he maintained were the circumstancesof the offense. (43 RT 4416-4417.) He argued that the trial evidence showed that Palma and appellant entered a one-room houseandthat “[a]s they entered that house, [appellant] shot and killed one male adult, then shot another male adult and then literally hunted him down while he was cowering in a corner with no escape.” (43 RT 4416.) The prosecutor stated that Palma then shot a woman twicein front of her four children; stood over a six-month-old baby 335 and shot him through the left eye; and shot a five-year-old girl in the back as she attempted to flee. (43 RT 4417.) With respect to the aggravating evidence presentedat the penalty phase, the prosecutor arguedthat the jury heard evidence that “during a gang fight at a high school [appellant] had used extremely derogatory language toward a counselor,indicated basically he wasgoing to sodomize the counselor and that he was going to get a gun and shootthe counselor in the head and kill him.” (43 RT 4418.) Appellant’s counsel responded by emphasizing that appellant had no prior felony convictions. (43 RT 4419.) Counsel also disputed the prosecutor’s claim that appellant had threatened to sodomize the counselor, arguing that the prosecutor had misconstrued the meaning of appellant’s statements to the counselor. (43 RT 4419.) After hearing the argumentsof counsel, Judge Armstrong deniedthe motion for modification of the verdict. The judge gave the following statement of reasons denying the motion: Theprincipal thrust of Mr. Uhalley’s argument seems to be that because the defendants were membersof the Mexican Mafia, that they were acting underduress. But, of course, that contention would be better supported if there were people there so that if they didn’t carry out this hit that they were supposedto, that they would immediately be executed themselves. And that simply isn’t supported. . They’re obviously — this was a Mexican Mafia situation, but the defendants had free will. And particularly the killing of the baby just seemsto be so outside of the pale of anything, that showed a wantonness,as far as these defendants were concerned, to wipe out a family. The baby 336 and the child were certainly not the objects of the wrath of the Mexican Mafia people. So I think that reviewing all of the evidence that was taken at the hearing,it just seems to the Court that it would be almost impossible for any responsible jury in this situation to cometo any other verdict other than the verdict of death. (43 RT 4419-4420.) The court proceeded to sentence co-defendant Palma and appellant to death. (43 RT 4425-4431.) C. Applicable Legal Standards Section 190.4, subdivision (e), provides that every defendant sentenced to death “shall be deemed to have made” a motion for modification of that sentence, and further providesthat: [iJn rulingon the application the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstancesreferred to in Section 190.3, and shall make a determination as to whether " the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to the law and the evidence presented. The judge shall state on the record the reasonsforhis findings. (§ 190.4, subd.(e).) Thus, to comply with the requirements of section 190.4, subdivision (e), ‘the trial court must independently reweigh the evidence of aggravating and mitigating factors presentedat trial and determine whether,in its independent judgment, the evidence supports the death judgment. The court muststate the reasonsforits ruling on the record.” (People v. Steele (2002) 27 Cal.4th 1230, 1267.) Moreover,“in determining whetherin his or her independent judgment the weight of the evidence supported the verdict, the judge [is] required to assess the credibility of the witnesses, determine the probative force of the testimony, and weigh the evidence.” 337 (People v. Lewis (2004) 33 Cal.4th 214, 225 [quoting People v. Rodriguez, supra, 42 Cal.3d at p. 793].) “Obviously, the evidence that he considersis that which was properly presented to the jury [citations] — no more, no less [citation].” (People v. Ashmus (1991) 54 Cal.3d 932, 1006.) In light of the specific responsibilities the trial court must exercise in reachingits “independent judgment”— “assess[ing] the credibility of the witnesses, determin[ing] the probative force of the testimony, and weigh[ing] the evidence” — this Court has said that “wherever possible” the judge whopresidedattrial “personally should consider the modification motion.” (People v. Brown (1988) 45 Cal.3d 1247, 1264, fn. 7.) However, wherethetrial judge dies or becomes unavailable before the section 190.4, subdivision (e) motion can be heard, the modification motion may be heard anddetermined “by any other judge of the same court.” ([bid; see also People v. Lewis (2004) 33 Cal.4th 214, 224 [citing cases].)”° _ © But see People v. Allison (1989) 48 Cal.3d 879, 917-918 (conc. & dis. opn. of Mosk,J.): Onits face, section 190.4(e) plainly gives the determination of an application for modification of the verdict of death to the trial judge andthetrial judge alone — not to any judgeandcertainly not to an appellate justice or an appellate court. The reason forthis is evident: the Constitution imposesa requirementof heightenedreliability for a verdict of death; only the trial judge has had the opportunity to observe the defendant and the demeanorof the witnesses; therefore, it is only that judge who can makea constitutionally adequate determination as to whether the defendant should be sentenced to death in accordance with the verdict. Thus, Justice Mosk argued thatwherethetrial judge is unable to make the determination undersection 190.4, there were “only two valid alternatives” (continued...) 338 In such cases the Court has consistently required that the substitute judgebefully familiar with the transcripts of the guilt and penalty phase proceedings over which he did not personally preside. Thus, this Court has said that “whenthe original trial judge is unavailable, necessity requires the replacementjudge to evaluate the credibility of the witnesses as best he or she can from the written record.” (People v. Lewis, supra, 33 Cal.4th atp. 226.) In Lewis, because the substitute judge had “fully reviewed the transcripts of both the guilt and penalty phases”(ibid., italics added),this Court found no error in the procedure employed by the substitute judge to rule on the application for modification of penalty in that case. Similarly, in People v. Espinoza (1992) 3 Cal.4th 806, a new judge was substituted to preside over the remainder of the guilt phase as well as the penalty phaseafter the original trial judge becameill as a result of chemotherapy treatments in the middle of trial. The replacement judge then ruled on the defendant’s motion for modification of verdict. On appeal, the defendant argued that because theoriginaltrial judge heard (1) critical prosecution evidence about which there were numerous concerns, and (2) had resumed the benchin the intervening period, the matter should be remandedto allow that judgeto rule on defendant’s modification motion. This Court rejected that argument, reasoning that because the substitute judge had “reviewedthe transcripts of the trial proceedings before his substitution and presided over the remainder of the guilt phase and the *6 (,. continued) for the reviewing court: either “to exercise our authority underPenal Code sections 1181, subdivision 7, and 1260, and reduce the sentence from death to life imprisonment withoutpossibility of parole while at the same time affirming the judgmentof guilt,” or “to reverse the judgmentas to penalty and to return the matter for a new penalty trial.” (/d. at p. 918.) 339 entire penalty phase,” he was able to make the necessary independent determination pursuant to section 190.4, subdivision (e). (People v. Espinoza,supra, 3 Cal.4th at p. 830.) Thetrial court is required to “provide a ruling [on the modification motion] adequate ‘to insure thoughtful and effective appellate review.’” (People v. Arias (1996) 13 Cal.4th 92, 191-192, quoting Peoplev. Rodriquez, supra, 42 Cal.3d at p. 794.) As this Court said in Arias, supra, the trial court need not“recount every detail” of the matters it considers mitigating or aggravating, but must “indicate[] its clear understanding of its duty to weigh all the mitigating and aggravating evidence.” (13 Cal.4th at p. 192.) . On appeal, this Court reviewsthe ruling of the trial court on a capital defendant’s motion to modify the death sentence after independently consideringthe record. (People v. Steele (2002) 27 Cal.4th 1230, 1267; People v. Mickey (1991) 54 Cal.3d 612, 704.) When thetrial court has failed to comply with the requirements thatit (1) “make an independent determination whether imposition of the death sentence is properin light of the relevant evidence and applicable law,” and (2) state on the recordits reasons for denying the modification motion, the proper remedyis to remand the matter for anew hearing on that motion. (People v. Burgener (2002) 29 Cal.4th 833, 891 (failure to make independentdetermination]; People v. Sheldon (1989) 48 Cal.3d 935, 962-963 [failure to state reasons].) 340 D. This Matter Must Be Remandedto the Trial Court for a New Hearing on Appellant’s Motion to Modify the Verdict, Because Judge Armstrong Did Not Preside Over AnyPortion of the Trial Proceedings and Did Not Fully Review the Transcripts of Both the Guilt and Penalty Phasesofthe Trial Judge Armstrongerred in ruling on appellant’s motion to modify the verdict, because he did not preside over any portion of appellant’s trial and was unfamiliar with the record of the guilt phase proceedings. By his own admission, Judge Armstrong had only reviewed Palma’s motion for modification of the verdict and the transcripts of the penalty phase in preparation for the hearing, and had not reviewed even those “line by line.” (43 RT 4408, 4416.) Indeed, Judge Armstrong’s unfamiliarity with the complete record in this case is apparent from the few statements that he made during the course of the hearing. For example, Judge Armstrongstated that he understood the “principal thrust of Mr. Uhalley’s argument... to be that becausethe defendants were members of the Mexican Mafia,that they were acting under duress.” (43 RT 4419,italics added.) In fact, neither defendant was a memberof the Mexican Mafia — a basic and undisputed fact aboutthis case that would have been readily apparent to Judge Armstrongif he had 1.77read the guilt phase transcriptsofthe trial.”" But since the only materials 7” See, e.g., 12 RT 1597-1638 (prosecution’s opening statement setting forth People’s theory of the case that the Mexican Mafia put out a contract for the murder of one or moreof the victims and used the Sangra street gang to carry them out); 13 RT 1662-1664 (testimony of Veronica Lopez that appellant was a Sangra member); 13 RT 1734 (testimony of Victor Jimenez that both defendants were Sangra members); 14 RT 1948- 1952 (testimony of Renee Chavez that both defendants as well as others were Sangra members); 15 RT 2080-2084, 2099-2100 (testimony of (continued...) 341 Judge Armstrong had reviewed were Palma’s motion for modification of verdict and someofthe penalty phase transcripts —as the judge acknowledged for the record — it 1s understandable that he misapprehended this fact. Thus, while Palma’s motion for modification of verdict made | repeated references to the Mexican Mafia,it did not mention the defendants’affiliation with the Sangra gang: A gang experttestified that when one receives an order from the Mexican Mafia, they mustcarry out the order or face death. This was an ordered hit. This should be considered a mitigating factor. ... Underthe argumentthat when one receives an order from the Mexican Mafia or face death, this should be considered a mitigating factor... . At the time of this incident, the [facts that the] defendant wasin his early 20's and was underthe substantial domination of the Mexican Mafia should be considered a mitigating factor. (VII CT 1930-1931.) Similarly, in his closing argumentat the penalty phaseofthe trial, Uhalley made repeated references to the Mexican Mafia, but noneto the Sangra gang, in connection with his argumentthat the defendants had “acted under extreme duress or underthe substantial domination of another person” (§ 190.3, factor (g)): Now,the personsthat were involvedin this particular crime, the persons who wentin there and slaughteredthese people, [the] People have proposed two different theories. Onetheoryis that the person or persons who wentin there wentin there because they were to kill the residents in there because Dido had been once a memberof the Mexican Mafia and that this wasa retaliation against him andthatheis — they’re going to get him no matter what happens. And also the second part of the theory that sort of came out wasthat 77 (,..continued) Witness No. 13 about Sangra members). 342 Tito wasselling and ripping off the Mexican Mafia and they were going to teach him a lesson. Well, if you rememberthe testimony of Sergeant Valdemar, that was the Mexican Mafia expert, the guy who was doing undercoversurveillance and was the expert on this. He wasaskeda series of questions concerning about, Well, what if somebody wasordered to do this? Whatif there were people who wereordered to do this, young gang membersor something like that, and these people didn’t do [. . . ] what they were ordered to do to kill these people? What would happen to them? Well, they would be killed. I assumethat [if] the theory that the People are operating underis correct[,] the people that went in there would certainly be [acting under the] substantial duress or domination of another person. Either you’re going to do this or you’re going to bekilled. (40 RT 4316-4317.) In short, Judge Armstrong’s erroneousbelief that the “defendants were members of the Mexican Mafia”apparently reflected the fact that he was only familiar with the penalty phase portionofthetrial record. | Because Judge Armstrong did not review the guilt phase transcripts, he was unfamiliar with some of the most important evidence weighing in favor of a modification of appellant’s penalty verdict. Most importantly, he — was unawarethat after a videotape of the January 1995 Mexican Mafia meeting with enhanced audio wasplayed for the jury, prosecution expert Richard Valdemar changedhis opinion that the Mexican Mafia intended for the children to be killed. As Valdemar acknowledged,the videotape with the enhanced audio madeit clear that during the January 1995 meeting Raymond Shyrock stated that he wanted Dido Morenokilled, but “not the kids.” (23 RT 3120.) Since the prosecution alleged that co-defendant Palma shot Maria Moreno, Laura Moreno, and AmbrosePadilla, Valdemar’s changed opinion suggests that Palma’s acts in killing the two 343 children were notin furtherance of the conspiracy but rather in contraventionofit.” Judge Trammell — who heard Valdemar’s testimony and was familiar with the controversy over what Shyrocksaid during the January 1995 meeting — understood that whether the Mexican Mafia intended that the children be killed made “a big difference” in assessing appellant’s culpability. (19 RT 2404.) In authorizing appellant’s counsel to attempt to enhancethe audio of that videotaped meeting, Judge Trammell reasoned: I think it is critical because I think it makes a big difference with respect to [appellant]. I am not sure with respect to Mr. Palma it makes any difference if the theory of the prosecution is that he is the one that killed the female and children. ... Certainly as to [appellant] I think it makes a big difference. ... I would sayit’s critical. (19 RT 2404.) Judge Armstrong’s lack of familiarity with the trial record when he ruled on appellant’s motion for modification of the verdict requires this Court to “vacate the judgmentof death and remand[the caseto thetrial court] for a new hearing on the application for modification of the verdict.” (People v. Burgener, supra, 29 Cal.4th at p. 891-892.) In Burgener, this Court found thatthe trial judge “failed to exercise his statutory duty to reweigh the evidence,” and to determine whether that evidence “supported *8 “Where a conspirator commits an act or makes a declaration which is neither in furtherance of the object of the conspiracy northe natural and . probable consequence ofan attemptto attain that object, he aloneis responsible for and is bound bythatact, and no responsibility therefor attaches to any of his confederates.” (CALJIC No. 6.16; see People v. Terry (1970) 2 Cal.3d 362, 402, fn. 18.) | 344 the judgmentof death,” because there was no “indication in the record”that the judge understood that duty, and the judge’s statements “betray[edhis] reliance on lesser standard of review.” (/d. at pp. 890-891.) Thus, since the trial judge’s statements did not “indicate that [he] had undertaken an independentreview of the evidenceor balancing of the aggravating and mitigating factors,” this Court remanded the matter to the trial court for a rehearing on the motion. (Ibid; see also People v. Bonillas (1989) 48 Cal.3d 757, 801 [trial court’s reference to incorrect standard of review in ruling on modification motion, and failure to indicate which aggravating or mitigating circumstancesit considered andtherelative weight it gave to them, required remand for rehearing].) | This case involves more compelling evidence than Burgenerthat the trial court failed to complywith its statutory duty to reweigh the evidence. The record here does not merely indicate that the trial judge failed to apply the correct legal standard in ruling on the motion,but ratherthat the judge lacked the necessary familiarity with the basic facts of the case. E. The Trial Court’s Failure to Make an Independent Determination under Section 190.4 Violated Appellant’s Rights Underthe State and Federal Constitutions Thetrial court’s conduct of the modification hearing violated appellant’s rights under the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and the analogousprovisions of the California Constitution (Art. I, §§ 1, 7, 15, 16, 17.) Because the death penaltyis qualitatively different than any other sentence, “there is a corresponding difference in the need forreliability in the determination that death is the appropriate punishmentin a specific case.” (Woodson v. North Carolina, supra, 428 U.S. at p. 305.) The high court said in Gregg v. Georgia (1976) 428 U.S. 153, 204-206, that judicial review of the jury’s findings “serves as 345 a check against the random or arbitrary imposition of the death penalty.” In California, the trial court is charged with the initial judicial review of the verdict. By failing to conductthat judicial review as required bythestatute, the trial court violated appellant’s constitutional rights to be free from the arbitrary and capricious imposition of the death penalty. Both this Court and the United States Supreme Court have consistently recognizedthe critical importance of compliance with the provisions of section 190.4, subdivision(e), “as an additional safeguard against arbitrary and capricious imposition of the death penalty in California.” (People v. Lewis, supra, 33 CalAth at p. 226; see also People v. Frierson (1979) 25 Cal.3d 142, 179 [finding California’s death penalty statute constitutional in part due to automatic modification procedure required undersection 190.4, subd. (e)]; People v. Diaz (1992) 3 Cal.4th 495, 575, {n.34; Pulley v. Harris (1984) 465 U.S. 37, 51-53; Proffitt v. Florida (1976) 428 U.S. 242, 248-250 [Florida statute’s provision requiring trial judge to consider jury’s recommendation, independently weigh | evidence in determining penalty, and provide statement of reasons in support of death judgment, protects against arbitrary and capricious imposition of death in violation of Eighth Amendment].) There was no such strict compliance with the requirements of section 190.4, subdivision (e), in this case. Furthermore,the trial court’s failure to independently reweigh the evidence deprived appellant of his constitutionally protected, legitimate expectation that he would be deprived ofhisliberty or life only by a court following state law in deciding his motion to modify the death sentence. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346 [statute entitling the defendant to have his punishmentfixed by a jury created a 346 constitutionally-protected liberty interest; violation of the statute amounted to an arbitrary deprivation of his right to due process under the Fourteenth Amendment]; Hewitt v. Helms (1983) 459 U.S. 460, 471-472; Vitek v. Jones (1980) 445 U.S. 480, 488-491; Wolff v. McDonnell (1974) 418 U.S. 539, 557.) Thus,thetrial court’s violation of the statutory procedures set outin section 190.4, subdivision (e), also implicated appellant’s federal procedural due processrights. Forinstance, in Walker v. Deeds (9th Cir. 1994) 50 F.3d 670, 672-673, the Ninth Circuit held that a Nevada sentencing statute implicated a defendant’s constitutional rights and created a constitutionally-protected liberty interest. Relying on Hicks v. Oklahoma, supra, 447 U.S. at p. 346, the appellate court found that “when state has provided a specific method | for determining whether a certain sentence shall be imposed,“‘it is not correctto say that the defendant’s interest” in having that method adhered to “is merely a matter of state procedural law.” (/bid.citing Fetterlyv. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300, and Hicks, supra.) Every capital defendantin California has a substantial and legitimate expectation that he or she will not be deprived of life or liberty unless the trial court complies with the requirements of section 190.4, subdivision (e). Thetrial court’s failure to do so hereclearly implicated appellant’ s constitutionally-protected liberty interest. Finally, the trial court’s failure to comply with the requirements of section 190.4, subdivision (e), also implicated the defendant’s rights under the Eighth Amendment. The automatic penalty review provided for under section 190.4 was clearly designed to ensure the reliability of the determination that death is an appropriate penalty. Because death is qualitatively different from any other punishment, the cruel and unusual 347 punishmentclause of the Eighth Amendment, as applied to the states through the Fourteenth Amendment, requires a heightened standard of reliability in the determinations of both guilt and the penalty to be imposed. (Gardnerv. Florida (1977) 430 U.S. 349, 357; Beck v. Alabama (1980) 447 U.S. 625, 637-638; see also People v. Allison (1989) 48 Cal.3d 879, 917-918 (dis. opn. of Mosk, J.); People v. Heishman (1988) 45 Cal.3d 147, 206 (dis. opn. of Mosk,J.).) Because Judge Armstrong did notpreside at any phase of appellant’s trial and was unfamiliar with the full record of the proceedingsin this case, he could not have conducted a “constitutionally adequate determination”as to whether appellant should be sentenced to death in accordance with the jury’s verdict. Accordingly, appellant’s death sentence must be vacated and the case remandedto thetrial court for appropriate proceedings pursuantto Section 190.4, subdivision (e). // // 348 17 CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION Manyfeatures of California’s capital sentencing schemeviolate the United States Constitution. This Court, however, has consistently rejected cogently phrased arguments pointing out these deficiencies. In People v. Schmeck (2005) 37 Cal.4th 240, this Court held that whatit considered to be “routine” challenges to California’s punishment scheme will be deemed “fairly presented” for purposes of federal review “even when the defendant does no morethan (i) identify the claim in the contextof the facts, (ii) note that we previously have rejected the same or a similar claim in a prior decision, and (iii) ask us to reconsider that decision.” (/d. at pp. 303-304, citing Vasquez v. Hillery (1986) 474 U.S. 254, 257.) In light of this Court’s directive in Schmeck, appellant briefly presents the following challenges in order to urge reconsideration and to preserve these claims for federal review. Should the Court decide to reconsider any of these claims, appellant requests the right to present supplementalbriefing. A. The Broad Application of Section 190.3, Subdivision (a), Violated Appellant’s Constitutional Rights Section 190.3, subdivision (a), directs the jury to considerin ageravation the “circumstances of the crime.” (CALJIC No. 8.85; VII CT 1850-1851.) Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstance of the crime, even thosethat, from caseto case, reflect starkly opposite circumstances. Of equal importanceis the use of factor (a) to embrace facts 349 which coverthe entire spectrum of circumstancesinevitably present in every homicide; facts such as the age of the victim, the age of the defendant, the methodofkilling, the motive for the killing, the time of the - killing, and the location of the killing. In the instant case, the prosecutor argued both the nature of the motives to kill Dido Moreno,Tito Aguirre, and Maria Moreno(“‘to teach a lesson to other people that might mess with the Mexican Mafia or to keep [Maria Moreno] from being a witness and identifying the people that went in there” (40 RT 4269)) and the absence of a motiveto kill either Laura Moreno or AmbrosePadilla (“[bJut this little girl, do you think she’d ever be able to identify anybody?” (40 RT 4272)) were aggravating factors. This Court has never applied any limiting construction to factor(a). (People v. Blair (2005) 36 Cal.4th 686, 749 [circumstances of crime” not required to have spatial or temporal connection to crime].) As a result, the concept of “aggravating factors” has been applied in such a wanton and freakish mannerthat almostall features of every murder can be and have been characterized by prosecutors as “aggravating.” As such, California’s capital sentencing schemeviolates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution becauseit permits the jury to assess death upon no basis other than that the particular set of circumstances surrounding the instant murder were enoughin themselves, without some narrowing principle, to warrant the imposition of death. (See Maynardv. Cartwright (1988) 486 U.S. 356, 363; but see Tuilaepa v. California (1994) 512 US. 967, 987-988[factor(a) survived facial challenge at time of decision].) This Court has repeatedly rejected the claim that permitting the jury to consider the “circumstancesof the crime” within the meaning of section 190.3 in the penalty phaseresults in the arbitrary and capricious 350 imposition of the death penalty. (People v. Kennedy (2005) 36 Cal.4th 595, 641; People v. Brown (2004) 34 Cal.4th 382, 401.) Appellant urges the Court to reconsiderthis holding. B. The Death Penalty Statute andAccompanying Jury Instructions Fail to Set Forth the Appropriate Burden of Proof 1. Appellant’s Death Sentence Is Unconstitutional Because It Is Not Premised on Findings Made Beyond a Reasonable Doubt California law does not require that a reasonable doubt standard be used during any part of the penalty phase, except as to proof of prior criminality. (Peoplev. Anderson (2001) 25 Cal.4th 543, 590; People v. . Fairbank (1997) 16 Cal.4th 1223, 1255; see People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are moral and not “susceptible to a burden-of-proof quantification’”].) In conformity with this standard, appellant’s jury was nottold that it had to find beyond a reasonable doubt that the aggravating factors in this case outweighed the mitigating factors before determining whetheror not to impose a death sentence. (CALJIC 8.85; VII CT 1850-1851.) Apprendi v. New Jersey (2000) 530 U.S. 466, 478, Blakely v. Washington (2004) 542 U.S. 296, 303-305, Ring v. Arizona (2002) 530 U.S. 584, 604, and Cunningham v. California (2007) ___ U.S. __, 127 S.Ct. 856, 863-864, now require any fact used to support an increased sentence, other than a prior conviction, to be submitted toa jury and proved beyond a reasonable doubt. In order to impose the death penalty in this case, appellant’s jury had to first make several factual findings: (1) that aggravating factors were present; (2) that the aggravating factors outweighed the mitigating factors; and (3) that the aggravating factors were 351 so substantial as to make death an appropriate punishment. (CALJIC No. 8.88; VII CT 1857-1858.) Because these additional findings were required before the jury could imposethe death sentence, Ring, Apprendi, Blakely and Cunningham require each of them to be made beyond a reasonable doubt. Thetrial court failed to so instruct the jury, and thusfailed to explain the general principles of law “necessary for the jury’s understanding of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 715.) Appellant is mindful that this Court has held that the imposition of the death penalty does not constitute an increased sentence within the meaning of Apprendi (People v. Anderson (2001) 25 Cal.4th 543, 589, fn. 14), and does not require factual findings. (People v. Griffin (2004) 33 Cal.4th 536, 595.) The Court has rejected the argument that Apprendi, Blakely, and Ring impose a reasonable doubt standard on California’s capital penalty phase proceedings. (People v. Prieto (2003) 30 Cal.4th 226, 263.) Appellant urges the Court to reconsiderits holding in Prieto so that California’s death penalty scheme will comport with the principles set forth in Apprendi, Ring, Blakely and Cunningham. Setting aside the applicability of the Sixth Amendmentto | California’s penalty phase proceedings, appellant contendsthatin capital cases the sentenceris required by due process and the prohibition against cruel and unusual punishmentto be convinced beyond a reasonable doubt not only that the factual bases forits decision are true, but that death is the appropriate sentence. This Court has previously rejected the claim that _ either the due process clause or the Eighth Amendmentrequires that the jury be instructed that it must decide beyond a reasonable doubtthatthe aggravating factors outweigh the mitigating factors and that deathis the 352 appropriate penalty. (People v. Blair (2005) 36 Cal.4th 686, 753.) Appellant requests that the Court reconsiderthis holding. 2. Either Some Burden of Proof Is Required, or the Jury Should Be Instructed That No Burden of Proof Applies State law provides that the prosecution always bears the burdenof » proofin a criminal case. (Evid. Code, § 520.) Because Evidence Code section 520 creates a legitimate state expectation as to the waya criminal prosecution will be decided, appellant is constitutionally entitled under the Fourteenth Amendmentto the burden of proof provided for bythat statute. (Cf. Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [defendantentitled under due process clause to procedural sentencing protections affordedby state law].) Accordingly, appellant’s jury should have been instructedthat the State had the burden of persuasion regarding the existence of any factorin aggravation, whether aggravating factors outweighed mitigating factors, and the appropriateness of the death penalty,and that it was presumedthat life without parole was an appropriate sentence. CALJIC Nos. 8.85 and 8.88, both of which were given in this case (VII CT 1850-1851, 1857-1858),fail to provide the jury with the guidance legally required for administration of the death penalty to meet constitutional minimum standards,in violation of the Sixth, Eighth, and Fourteenth Amendments. This Court has held that capital sentencing is not susceptible to burdens of proofor persuasion because the exercise is largely moral and normative, and thus unlike other sentencing. (People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137.) This Court has also rejected any instruction on the presumption oflife. (People v. Arias (1996) 13 Cal.4th 92, 190.) Appellantis entitled to jury instructions that comport with the 353 federal Constitution and thus urges the Court to reconsiderits decisionsin Lenart and Arias. Even assumingit is permissible not to have any burden ofproof, the trial court erred prejudicially by failing to articulate that principleto the jury. (Cf. People v. Williams (1988) 44 Cal.3d 883, 960 [upholding jury instruction that prosecution had no burdenof proof in penalty phase under 1977 death penalty law].) Absent such an instruction, there is the possibility that a juror would vote for the death penalty because of a misallocation of a nonexistent burden of proof. 3. Appellant’s Death Verdict Was Not Premised on Unanimous Jury Findings a. Aggravating Factors It violates the Sixth, Eighth, and Fourteenth Amendmentsto impose a death sentence whenthereis no assurancethe jury, or even a majority of the jury, ever founda single set of aggravating circumstances that warranted the death penalty. (See Ballew v. Georgia (1978) 435 U.S. 223, 232-234; Woodsonv. North Carolina (1976) 428 U.S. 280, 305.) Nonetheless, this Court“has held that unanimity with respect to aggravating factors is not required bystatute or as a constitutional procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749.) The Court reaffirmed this holding after the decision in Ring v. Arizona, supra, 530 U.S. 584. (See People v. Prieto, supra, 30 Cal.4th at p. 275.) Appellant asserts that Prieto was incorrectly decided andthat application of the Ring reasoning mandates jury unanimity underthe overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. “Jury unanimity .. . is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room,andthat the jury’s ultimate 354 decision will reflect the conscienceof the community.” McKoy v. North Carolina (1990) 494 U.S. 433, 452 (conc. opn. of Kennedy, J.).) The failure to require the jury to unanimously find the aggravating factors true also violates the equal protection guaranty of the federal Constitution. In California, when a criminal defendanthas been charged with specialallegations that may increase the severity of his sentence, the jury must render a separate, unanimousverdict on the truth of such allegations. (See, e.g., § 1158a.) Since capital defendants are entitled to more rigorousprotections than those afforded noncapital defendants (see Mongev. California (1998) 524 U.S. 721, 732; Harmelin v. Michigan (1991) 501 U.S. 957, 994), and providing moreprotection to a noncapital defendantthan a capital defendant violates the equal protection clause of the Fourteenth Amendment(see e.g., Myersv. YIst (9th Cir. 1990) 897 F.2d 417, 421), it follows that unanimity with regard to aggravating circumstancesis constitutionally required. To apply that requirement to an enhancementfindingthatcarries only a maximum punishmentof oneyear in prison,butnotto a finding that could have “a substantial impact on the jury’s determination whether the defendantshouldlive or die” (People v. Medina (1995) 11 Cal.4th 694, 763-764), would by its inequity violate the equal protection clause of the Fourteenth Amendmentandbyits irrationality violate both the due process clause of the Fourteenth Amendmentandthe cruel and unusual punishment clause of the Eighth Amendmentto the federal Constitution, as well as the Sixth Amendment’s guaranteeofa trial by jury. Appellant asks the Courtto reconsider Taylor and Prieto and require jury unanimity as mandated by the federal Constitution. 355 | b. Unadjudicated Criminal Activity Appellant’s jury was notinstructed that prior criminality had to be foundtrue by a unanimousjury; nor is such an instruction generally provided for under California’s sentencing scheme. (See Argmt. 14, supra.) Consequently, any use of unadjudicated criminal activity by a memberof the jury as an aggravating factor, as outlined in section 190.3, subdivision (b), violates due process and the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, rendering a death sentence unreliable. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578 [overturning death penalty based in part on vacated prior conviction].) The United States Supreme Court’s recent decisionsin Apprendiv. New Jersey, supra, 530U.S. 466, Blakely v. Washington, supra, 542 U.S. 296, Ring v. Arizona, supra, 536 U.S. 584, and Cunningham v. California, supra, 127 S.Ct. 856, confirm that under the due process clause of the Fourteenth Amendmentandthejury trial guarantee of the Sixth Amendment,all of the findings prerequisite to a sentence of death must be made beyond a reasonable doubt by a unanimousjury. In light of these decisions, any unadjudicated criminal activity must be found true beyond a reasonable doubt by a unanimousjury. Appellant is aware that this Court has rejected this claim (People v. Ward (2005) 36 Cal.4th 186, 221-222; People v. Anderson (2001) 25 Cal.4th 543, 584-585), but asks the Court to reconsiderits holdings in these cases. 4. The Instructions Caused the Penalty Determination to Turn on an Impermissibly _ Vague and AmbiguousStandard The question of whether to impose the death penalty upon appellant hinged on whetherthe jurors were “persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating 356 circumstancesthat it warrants death instead oflife withoutparole.” (CALJIC 8.88; VII CT 1858.) The phrase “so substantial”is an impermissibly broad phrase that does not channelorlimit the sentencer’s discretion in a mannersufficient to minimizetherisk of arbitrary and capricious sentencing. Consequently, this instruction violates the Eighth and Fourteenth Amendments becauseit creates a standard that is vague and directionless. (See Maynard v. Cartwright (1988) 486 U.S. 356, 362.) This Court has found that the use of this phrase does not render the instruction constitutionally deficient (People v. Breaux (1991) 1 Cal.4th 281, 316, fn. 14), but appellant asks the Court to reconsider that opinion. 5. The Instructions Failed to Inform the Jury That the Central Determination Is Whether Death Is the Appropriate Punishment The ultimate question in the penalty phaseof a capital caseis whether death is the appropriate penalty. (Woodson v. North Carolina, supra, 428 U.S.at p. 305.) Yet, CALJIC No. 8.88 does not makethis clear to jurors; rather it instructs that they can return a death verdictif the aggravating evidence “warrants” death rather than life without parole. (VII CT 1858.) These determinationsare not the same. To satisfy the Eighth Amendment“requirementof individualized sentencing in capital cases” (Blystone v. Pennsylvania (1990) 494 U.S. 299, 307), the punishment mustfit the offense and the offender, i.e. it must be appropriate. Onthe other hand, jurors find death to be “warranted” when they find the existence of a special circumstance that authorizes death. (See People v. Bacigalupo (1993) 6 Cal.4th 457, 462, 464.) By failing to distinguish between these determinations, the jury instructionsviolate the Eighth and Fourteenth Amendmentsto the federal Constitution. 357 This Court previously has rejected this claim (People v. Arias, supra, 13 Cal.4th at p. 171), but appellant urges the Court to reconsiderthat ruling. 6. The Instructions Failed to Inform the Jurors That if They Determined That Mitigation Outweighed Aggravation, They Were Required to Return a Sentenceof Life Withoutthe Possibility of Parole Section 190.3 directs a jury to impose a sentenceoflife imprisonment without parole when the mitigating circumstances outweigh the aggravating circumstances. This mandatory languageis consistent with the individualized consideration of a capital defendant’s circumstancesthat is required under the Eighth Amendment. (See Boyde v. California (1990) 494 U.S. 370, 377.) Yet, CALJIC No.8.88 does not addressthis proposition, but only informs the jurors of the circumstances that permit them to render a death verdict. By failing to conform to the mandate of section 190.3,the instruction violated appellant’s right to due process of law. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) This Court has held that since the instruction tells the jury that it can impose death onlyif it finds that the aggravation outweighs the mitigation, it is unnecessary to instruct on the converse principle. (People v. Duncan (1991) 53 Cal.3d 955, 978.) Appellant submits that this holding conflicts with numerouscases disapprovinginstructions that emphasize the prosecution theory of the case while ignoring or minimizing the defense theory. (See People v. Moore (1954) 43 Cal.2d 517, 526-529; Peoplev. Kelly (1980) 113 Cal.App.3d 1005, 1013-1014; see also People v. Rice (1976) 59 Cal.App.3d 998, 1004 [instructions required on every aspect of case].) It also conflicts with due processprinciples in that the nonreciprocity involved in explaining how a death verdict may be 358 warranted, but failing to explain when anlife verdict is required,tilts the balance of forces in favor of the accuser and against the accused. (See Wardius v. Oregon, supra, 412 U.S. at pp. 473-474.) 7. The Instructions Failed to Inform the Jurors That Even if They Determined That Aggravation Outweighed Mitigation, They Still Could Return a Sentence of Life Withoutthe Possibility of Parole Pursuant to CALJIC No. 8.88, the jury was directed that a death judgment cannotbe returned unless the jury unanimouslyfinds “that the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole.” (VII CT 1858.) Although this finding is a prerequisite for a death sentence,it does not preclude a sentence of life without possibility of parole. Under People v. Brown (1985) 40 Cal.3d 512, 541, the jury retains the discretion to return a sentenceoflife withoutthe possibility of parole evenif it concludes that the aggravating circumstancesare “so substantial” in comparison with the mitigating circumstances. Indeed, under California law, a jury mayreturn a sentence oflife without the possibility of parole even in the complete absence of mitigation. (People v. Duncan (1991) 53 Cal.3d 955, 979.) Theinstructions failed to inform the jury of this option and therebyarbitrarily deprived appellantof a state-createdliberty andlife interest in violation of the due process clause of the Fourteenth Amendment. (Hicks v. Oklahoma, supra, 447 US.at p. 346). The decisions in Boyde v. California, supra, 494 U.S. at pp. 376-377, and Blystone v. Pennsylvania, supra, 494 U.S. at p. 307, do not foreclose this claim. In those cases, the high court upheld, over Eighth Amendment challenges, capital sentencing schemes that mandate death upona finding 359 that the aggravating circumstances outweigh the mitigating circumstances. However,that is not the 1978 California capital sentencing standard under whichappellant was condemned. Rather, in People v. Brown, supra, 40 Cal.3d at p. 541, this Courtheld that the ultimate standard in Californiais the appropriateness of the penalty. After Boyde, this Court has continuedto apply, and has refused to revisit, the Brown capital sentencing standard. (See, e.g., People v. Champion (1995) 9 Cal.4th 879, 949, fn. 33; People v. Hardy (1992) 2 Cal.4th 86, 203; People v. Sanders (1990) 51 Cal.3d 471, 524,fn. 21.) | | This Court has repeatedly rejected this claim (see People v. Smith (2005) 35 Cal.4th 334, 370; People v. Arias, supra, 13 Cal.4th at p. 170), but appellant urges the Court to reconsiderthese rulings. 8. The Instructions Failed to Inform the Jury Regarding the Standard of Proof and Lack of Need for Unanimity as to Mitigating Circumstances The failure of the jury instructions to set forth a burden of proof . impermissibly foreclosed the full consideration of mitigating evidence required by the Eighth Amendment. (See Mills v. Maryland (1988) 486 | U.S. 367, 374; Lockett v. Ohio (1978) 438 U.S. 586, 604; Woodson v. North Carolina, supra, 428 U.S.at p. 304.) Constitutional error occurs when there is a likelihood that a jury has applied an instruction in a waythat - prevents the consideration of constitutionally relevant evidence. (Boydev. California, supra, 494 U.S. at p. 380.) That occurred here because the jury _ wasleft with the impression that the defendant bore some particular burden ' in proving facts in mitigation. A similar problem is presented by the lack of an instruction regarding jury unanimity. Appellant’s jury wastold in the guilt phase that 360 unanimity was required in order to acquit appellant of any charge or special circumstance. In the absence of an explicit instruction to the contrary, there is a substantial likelihood that the jurors believed unanimity wasalso required for finding the existence of mitigating factors. A requirement of unanimity improperly limits consideration of mitigating evidence in violation of the Eighth Amendment tothe federal Constitution. (See McKoy v. North Carolina, supra, 494 U.S.at pp. 442-443.) Had the jury beeninstructed that unanimity was required before mitigating circumstances could be considered, there would be no question that reversal would be required. (Ibid.; see also Mills v. Maryland, supra, 486 U.S. at p. 374.) Because there is a reasonable likelihood that the jury erroneously believed that unanimity was required, reversal is required here. In short, the failure to provide the jury with appropriate guidance was prejudicial and requires reversal of appellant’s death sentence since he was deprived ofhis rights to due process, equal protection and reliable capital sentencing determination,in violation of the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. 9. The Penalty Jury Should Be Instructed on the Presumptionof Life The presumption of innocenceis a core constitutional and adjudicative value that is essential to protect the accused in a criminalcase. (See Estelle v. Williams (1976) 425 U.S. 501, 503.) In the penalty phase of a capital case, the presumption oflife is the correlate of the presumptionof. innocence. Paradoxically, however, although the stakes are much higherat the penalty phase,there is no statutory requirementthatthe jury be instructed as to the presumptionoflife. (See Note, The Presumption of 361 Life: A Starting Pointfor Due Process Analysis of Capital Sentencing (1984) 94 Yale L. J. 351; cf. Delo v. Lashley (1983) 507 U.S. 272.) | Thetrial court’s failure to instruct the jury that the law favorslife and presumeslife imprisonment without parole to be the appropriate sentence violated appellant’s right to due process of law (U.S. Const., 14th Amend.), his right to be free from cruel and unusual punishment and to have his sentence determined in a reliable manner (U.S. Const., 8th & 14th Amends.), and his right to the equal protection of the laws. (U.S. Const., 14th. Amend.) In People v. Arias, supra, 13 Cal.4th 92, this Court held that an instruction on the presumptionoflife is not necessary in California capital cases, in part because the United States Supreme Court hasheld that “the state may otherwisestructure the penalty determinationasit sees fit,” so long as state law otherwise properly limits death eligibility. (/d. at p. 190.) However,as the other sections of this argument demonstrate,this state’s death penalty law is remarkably deficient in the protections neededto insure the consistent and reliable imposition of capital punishment. Therefore, a _ presumption. of: life instruction is constitutionally required. C. Failing to Require the Jury to Make Written Findings Violated Appellant’s Right to Meaningful Appellate Review Consistent with state law (People v. Fauber (1992) 2 Cal.4th 792, 859), appellant’s jury was not required to make any written findings during the penalty phaseof the trial. The failure to require written or other specific findings by the jury deprived appellantof his rights under the Sixth, Eighth, and Fourteenth Amendmentsto the federal Constitution, as well as his right to meaningful appellate review to ensure that the death penalty was not capriciously imposed. (See Gregg v. Georgia (1976) 428 U.S. 153, 195.) 362 This Court has rejected these contentions (People v. Cook (2006) 39 Cal.4th 566, 619), but appellant urges the Court to reconsider its decisions on the - necessity of written findings. D. The Instructions to the Jury on Mitigating and Aggravating Factors Violated Appellant’s Constitutional Rights 1. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors The inclusion in the list of potential mitigating factors of such adjectives as “extreme” and “substantial” (see CALJIC No.8.85, factors (d) and (g); VII CT 1850-1851) acted asbarriers to the consideration of mitigation in violation of the Sixth, Eighth, and Fourteenth Amendmentsto the federal Constitution. (Mills v. Maryland (1988) 486 U.S. 367, 384; Lockett v. Ohio (1978) 438 U.S. 586, 604.) The Court haspreviously rejected this argument (People v. Avila (2006) 38 Cal.4th 491, 614), but appellant urges reconsideration. 2. The Failure to Delete Inapplicable Sentencing Factors Someofthe sentencing factors set forth in CALJIC No. 8.85 were inapplicable to appellant’s case. Thetrial court failed to omit those factors from the jury instructions (VII CT 1850), likely confusing the jury and preventing the jurors from making any reliable determination ofthe appropriate penalty, in violation of defendant’s constitutional rights. Appellant asks the Court to reconsider its decision in People v. Cook, supra, 39 Cal.4th at p. 618, and holdthat the trial court must delete any inapplicable sentencing factors from the jury’s instructions. 363 3. The Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators In accordance with customary state court practice, nothing in the instructions advised the jury which of the sentencing factors in CALJIC No. 8.85 were aggravating, which were mitigating, or which could beeither aggravating or mitigating depending uponthe jury’s appraisal of the evidence. (VII CT 1850-1851.) The Court has upheld this practice. (People v. Hillhouse (2002) 27 Cal.4th 469, 509.) As a matter of state law, however, several of the factors set forth in CALJIC No. 8.85 — factors (d), (e), (f), (g), (h), and (j) — were relevant solely as possible mitigators. (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People vy. Davenport (1985) 41 Cal.3d 247, 288-289). Appellant’s jury, however, wasleft free to concludethat a “not” answeras to any of these “whether or not” sentencing factors could establish an aggravating circumstance. Consequently, the jury was invited to aggravate appellant’s sentence based on non-existent or irrational aggravating factors precluding the reliable, individualized,capital sentencing determination required by the Eighth and Fourteenth Amendments. As such, appellant asks the Court to reconsider its holding that the trial court need notinstruct the jury that certain sentencing factors are only relevant as mitigators. E. The Prohibition Against Inter-Case Proportionality Review Guarantees Arbitrary and Disproportionate Imposition of the Death Penalty The California capital sentencing scheme doesnotrequire that either ‘the trial court or this Court undertake a comparison betweenthis and other similar cases regarding the relative proportionality of the sentence imposed, i.e., inter-case proportionality review. (See People v. Fierro (1991) 1 364 Cal.4th 173, 253.) The failure to conduct inter-case proportionality review violates the Sixth, Eighth, and Fourteenth Amendmentprohibitions against proceedingsthat are conductedin a constitutionally arbitrary, unreviewable manner,or that violate equal protection or due process. Forthis reason, appellant urges the Court to reconsiderits failure to require inter-case proportionality review in capital cases. F. The California Capital Sentencing SchemeViolates the Equal Protection Clause California’s death penalty scheme providessignificantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes, in violation of the equal protection clause of the Fourteenth Amendmentto the federal Constitution. To the - extent that there may be differences between capital defendants and non-capital felony defendants, those differences justify more, not fewer, procedural protections for capital defendants. In a non-capital case, any true finding on an enhancementallegation must be unanimous and beyond a reasonable doubt, aggravating and mitigating factors must be established by a preponderanceof the evidence, and the sentencer must set forth written reasons justifying the defendant’s sentence. (People v. Sengpadychith (2001) 26 Cal.4th 316, 325; Cal. Rules of Court, rule 4.42, subds.(b), (e).) In a capital case, there is no burden of proofatall, and the jurors need not agree on which aggravating circumstancesapply nor provide any written findingsto justify the defendant’s sentence. This Court has previously rejected these equal protection arguments (People v. Manriquez (2005) 37 Cal.4th 547, 590), but appellant asks the Court to reconsiderthat ruling. 365 G. California’s Use of the Death Penalty as a Regular Form of PunishmentFalls Short of International Norms On numerousoccasions, this Court has rejected the claim that the use of the death penalty at all, or, alternatively, the regular use of the death penalty, violates international law, the Eighth and Fourteenth Amendments to the federal Constitution, or “evolving standards of decency”(Trop v. Dulles (1958) 356 U.S. 86, 101; People v. Cook, supra, 39 Cal.4th at pp. 619-620; People v. Snow (2003) 30 Cal.4th 43, 127; People v. Ghent (1987) 43 Cal.3d 739, 778-779.) In light of the international community’s overwhelming rejection of the death penalty as a regular form of punishment, and the United States Supreme Court’s recent decision citing international law to support its decision prohibiting the imposition of capital punishment against defendants who committheir crimes as juveniles (Roper v. Simmons (2005) 543 U.S. 551, 554), appellant urges the Court to reconsiderits previous decisions. // // 366 18 REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS THAT UNDERMINED THE FUNDAMENTAL FAIRNESS OF THE TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENT Asthis Court has stated, a series of errors that may individually be harmless may nevertheless “rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844; citing People v. Purvis (1963) 60 Cal.2d 323, 348, 353; see Cooper v. Fitzharris (9th Cir. 1978) 586 F.2d 1325, 1333 (en banc) [“prejudice may result from the .)” Reversalis required unlesscumulative impact of multiple deficiencies”’] it can be said that the combinedeffect ofall of the errors, constitutional and otherwise, was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 US. 18, 24; United States v. Necoechea (9th Cir. 1993) 986 F.2d 1273, 1282 [combinedeffect of errors of federal constitutional magnitude and non-constitutional errors should be reviewed under federal harmless beyond a reasonable doubt standard]; People v. Archer (2000) 82 Cal.App.4th 1380, 1394-1397; People v. Williams (1971) 22 Cal.App.3d 34, 58-59 [applying the Chapman standard to the totality of the errors whenerrors of federal constitutional magnitude combined with eeother errors].) Where “‘the government’s case is weak, a defendant is more likely to be prejudiced by the effect of cumulativeerrors.’ [Citation.]” °° Indeed, where there are a numberoferrorsattrial, “a balkanized, issue-by-issue harmless error review”is far less meaningful than analyzing the overall effect of all the errors in the context of the evidence introduced at trial against the defendant. (United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1476.) 367 (Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 883.) This is just such a case. In this case,the trial court’s failure to afford the defensenotice and an opportunity to participate in proceedings in which the prosecution made | its in camera showingof “good cause”in support of a pretrial protective | order (Argmt. 2) resulted in an overbroad order that deprived the defense of an opportunity to conduct an independentinvestigation of the case and compelled the defense to conductits interviews with prosecution witnesses underthe supervision of the prosecution (Argmt. 1).. These errors denied appellant his rights to due process, to confrontation, to present a defense, and to effective assistance of counsel. During the guilt phaseoftrial, the combination ofthe trial court’s errors in admitting grossly prejudicial and irrelevant gang evidence (Argmt. 3), evidence of threats and intimidation of witnesses unconnected to appellant (Argmt. 4), and inadmissible hearsay statements of Mexican Mafia member Raymond Shyrock (Argmt. 5) denied appellanthis right to a _ fair trial on guilt by infusing the trial with inflammatory and inadmissible evidencerelated to gangs, much of which had nothing to do with appellant. Further, because the prosecution did not present overwhelming evidence of appellant’s guilt of the charged crimes,the jury’s verdict turned on Witness No. 16’s credibility when he implicated appellant in the crimes. Thetrial court’s errors in failing to instruct the jury that Witness No. 16 was an accomplice as a matter of law (Argmt. 6), combined with the court’s error in giving the jury CALJIC No. 2.11.5 (Argmt. 7), allowed the jury to return a guilty verdict based solely on the uncorroborated testimony of Witness No. 16, notwithstanding his substantial credibility problems. Similarly, the trial court’s error in allowing the prosecution to proceed on an uncharged 368 conspiracy theory (Argmt. 8) was compounded by the numerous instructional errors related to the trial court’s jury instructions on conspiracy (Argmt. 9). The cumulative effect of these errors so infected appellant’s trial with unfairness as to makethe resulting conviction a denial of due process. (U.S. Const., 14th Amend.; Cal. Const.art. I, §§ 7 & 15.) Therefore, appellant’s convictions must be reversed. (See Killian v. Poole (9th Cir. 2002) 282 F.3d 1204, 1211 [“even if no single error were prejudicial, where there are several substantial errors, ‘their cumulative effect may nevertheless be so prejudicial as to require reversal’”]; Harris v. Wood (9th Cir. 1995) 64 F.3d 1432, 1438-1439 [holding cumulative effect of the deficiencies in trial counsel’s representation requires habeasrelief as to the conviction]; United States v. Wallace, supra, 848 F.2d at pp. 1475-1476 [reversing heroin convictions for cumulative error]; People v. Holt (1984) 37 Cal.3d 436, 459 [reversing capital murder conviction for cumulative error].) The death judgmentitself must be evaluated in light of the cumulative error occurring at both the guilt and penalty phases of appellant’s trial. (See People v. Hayes (1990) 52 Cal.3d 577, 644 [court considers prejudice of guilt phase instructional error in assessing effect of penalty phaseerrors].) In this context, this Court has expressly recognized that evidence that may otherwise‘not affect the guilt determination can have a prejudicial impact on the penalty trial. (People v. Hamilton (1963) 60 Cal.2d 105, 136-137.) Reversal of the death judgment is mandated here because it cannot be shownthat these errors had no effect on the penalty verdict. (See Hitchcock v. Dugger (1987) 481 U.S. 393, 399; Skipperv. 369 South Carolina (1986) 476 U.S. 1, 8; Caldwell v. Mississippi (1985) 472 U.S. 320, 341.) Moreover, even leaving aside the impactof the guilt phase errors enumerated above, the penalty verdict must be reversed in this case because: (1) thetrial court erroneously precluded the defense from questioning the prospective jurors about their ability to considera life sentencein a case involving the murder of multiple victims, including two young children (Argmt. 12); (2) the trial court erroneously admitted evidence of threats made by appellant as rebuttal evidence (Argmt. 13); (3) the trial courterroneously failed to sua sponte instruct the jurors with CALJIC No.8.87 after the prosecutor urged the jury to consider the improperly admitted rebuttal evidence as factor (b) evidence (Argmt. 14); andthetrial court failed to specifically re-instruct the jury with the applicable guilt-phase instructions, thereby depriving the jury of guidance as to how to consider the penalty phase evidence. (Argmt. 15.) Accordingly, the combined impactof the variouserrors in this case requires reversal of appellant’s judgment and death sentence. It / 370 CONCLUSION Forall of the reasons stated above, both the judgmentof conviction and sentence of death in this case must be reversed. Dated: June 1, 2007. Respectfully submitted, MICHAEL J. HERSEK State Public Defender RAOUL D. SCHONEMANN Deputy State Public Defender Attorneys for Appellant Richard Valdez 371 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE 8.630(b)(2) I, Raoul Schonemann, am the Deputy State Public Defender assigned to represent appellant Richard Valdez-in this automatic appeal. I directed a memberof our staff to conduct a word countofthis brief using our office’s computer software. On the basis of that computer-generated word countI certify that this brief is 85, 900 words in length. RAOUL SCHONEMANN Attorney for Appellant 372 DECLARATION OF SERVICE Re: People v. Richard Valdez California Supreme Ct. No. S062180 I, Neva Wandersee, declare that I am over 18 years of age, and not a party to the within cause; that my business address is 221 Main Street, 10th Floor, San Francisco, California 94105; and that on June 1, 2007, I served a true copy ofthe attached APPELLANT’S OPENINGBRIEF(not including ARGUMENTS1 AND 2, FILED SEPARATELY UNDER SEAL PURSUANT TO COURT ORDER)onthe following, by placing samein an envelope addressed as follows: Office of the Attorney General _ Attn: Michael R. Johnsen, D.A.G. 300 South Spring Street Los Angeles, CA 90013 Addie Lovelace John Monaghan, Deputy District Attorney Death Penalty Los Angeles County District Attorney’s Office 210 West Temple, Room M-3 210 West Temple Street, Room 17-1140 Los Angeles, CA 90012 Los Angeles, CA 90012 Antonio J. Bestard, Esq. Richard Valdez (Appellant) 315 West Mission Boulevard P.O. Box K-56901 Pomona, CA 91766 San Quentin, CA 94974 Each said envelope was then, on June 1, 2007, 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 under penalty of perjury that the foregoingis true and correct. Executed on June 1, 2007, at S DECLARANT