PEOPLE v. BECERRA (FRANK KALIL)

Appellant’s Opening Brief

Cal.January 10, 2007

gyprcue courtcory COPYNo. S$065573 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA - ) PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent, ) ) v. ) Los Angeles County ) (Sup. Ct. No. BA 106878 FRANK KALIL BECERRA, ) SUPREME COURT ) E Po ot D Defendant and Appellant. ) ) JAN 19 2007 _) FredeiicaJ aieti Clerk DEPUTY APPELLANT’S OPENING BRIEF Appeal from the Judgment of the Superior Court of the State of California for the County of Los Angeles HONORABLEJ.D. SMITH, JUDGE MICHAEL J. HERSEK State Public Defender ALISON BERNSTEIN State Bar No. 162920 Deputy State Public Defender 221 Main. Street, 10th Floor San Francisco, California 94105 Telephone: (415) 904-5600 Attorneys for Appellant TABLE OF CONTENTS Page INTRODUCTION ......... 0... cccectene e nes 1 STATEMENT OF APPEALABILITY ............ 0.00 cece eee neces 2 STATEMENT OF THE CASE ............ 02. c eee eee eee eens 3 STATEMENTOF FACTS .......... 0... cece ce cece eens 6 A. Guilt Phase... 0...cece cece neces 6 B. Penalty Phase ............. ccc cece eee eee ee eens 16 I. THE TRIAL COURT ARBITRARILY REVOKED APPELLANT’S SELF-REPRESENTATION FOR IMPERMISSIBLE REASONS AND WITHOUT WARNINGIN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.............---- 002 eee 22 A. Proceedings Below ......... 0... cece cee eet eens 22 B. A Defendant’s Self-Representation May Be Terminated Only For Deliberate, Serious And Obstructionist Misconduct And Only After He Has Been Warned That His Misconduct May Result In Revocation OfHis Pro Se Status ............. 26 C. Appellant’s Conduct Did Not Even Begin To Approach The Type OfMisconduct That Would Justify Terminating His Self-Representation ........... 29 1. The Trial Court Erroneously Terminated Appellant’s Self-Representation on the Unsubstantiated Finding That Appellant Had Been Dilatory in Preparing for the Preliminary Hearing ...............0. eee eee 30 II. TABLE OF CONTENTS Page Even Assuming That Appellant’s Attempts to Enforce Discovery Compliance Did Delay the Case, His Actions Do Not Constitute Obstructionist Misconduct That Would Justify Terminating His Self-Representation ...........5 eee eee eee 34 The Trial Court’s Unsubstantiated Finding That Appellant Was Unable to Defend Himself Adequately Does NotJustify Terminating His Self-Representation ...........-20---e+05- 40 Appellant’s Conduct, Viewedin the Totality ofthe Circumstances, Did Not Subvert the Trial, and Did Not Justify Terminating His Self-Representation Particularly in Light ofthe Trial Court’s Complete Failure to Warn Appellant Prior to Revoking His Pro Se Status ....... 0... c eee eee eee eee 44 Appellant’s Reaction to Termination ofhis Self- Representation Does NotJustify the Trial Court’s Decision ...........-...-.05- 47 Reversal Is Required ........ 0... cece cere eee eee 48 THE TRIAL COURT ERRONEOUSLY FORCED APPELLANT TO WEAR A REACTBELT RESTRAINT DURING THE GUILT PHASEOFHIS CAPITAL TRIAL IN VIOLATION OF STATE LAW AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ...........2 20 cece eect eee tees 50 Proceedings Below ........... 0c cece eee eect eters 51 ii Ill. TABLE OF CONTENTS Page Before A Stun Belt May Be Imposed On A Criminal Defendant, The Trial Court Must Determine That There Is A Manifest Need For Physical Restraints And That A Stun Belt Is Both The Least Restrictive Form OfRestraint And A Safe And Appropriate Device ................. 54 The Trial Court Violated Appellant’s Constitutional Trial Rights By Delegating All Decisions About Physical Restraints To The Sheriff, Failing To Make An Independent Determination OfWhether A Stun Belt Was The Least Restrictive And Medically Appropriate Restraint, And Requiring Him To Wear A Stun Belt Despite His Serious Heart Condition ...... 0... ccc ce eee ee eee e eens 58 The Judgment Must Be Reversed Because Appellant WasPrejudiced By Being Forced To Wear A Stun Belt During The Guilt Phase ...................0005. 64 1. Reversalis RequiredUnder Riggins v. Nevada .... 65 2. Even Assuming the Erroneous Useofa Stun Belt Is Subject to Harmless Error Review, Reversal Is Required Under Both the Chapman and the Watson Standards .................--- 66 THE ERRONEOUS ADMISSION OF THE PROSECUTION'S INCOMPETENT AND IRRELEVANT EXPERT TESTIMONY ABOUT GANGS IMPERMISSIBLY BOLSTERED THE PROSECUTION'S THEORY OF THE CASE AND DENIED APPELLANT A FAIR TRIAL .... 72 Proceedings Below ........... 02. e cece e eee teens 73 iii IV. TABLE OF CONTENTS Page B. The Testimony Of Gang Experts Berry And Valdemar Was Not The Proper Province Of An Expert Witness ..........- 0-0 c cece eee eee ees 80 C. The Testimony OfGang Experts Berry And Valdemar Was Not Relevant To Any Disputed Fact .. 0. ceeccceeee eee e eee e ee neee 85 D. Wilson Berry Was Incompetent To Testify As A Gang Expert ...... 20.0... ccc cee eee tenes 92 E. The Testimony Of Gang Experts Berry And Valdemar Was Cumulative And Far More Prejudicial Than Probative ...... 0... cece ce eee eee tenet e eee eeee 95 F, Reversal Is Required Because The Erroneous Admission OfThe Gang Experts’ Testimony Resulted In Both A Fundamentally Unfair Trial And A Miscarriage of Justice ..............0000000, 101 APPELLANT WASDENIEDHIS RIGHTSTO A FAIR TRIAL AND TO PRESENT A DEFENSE WHEN THE TRIAL COURT ERRONEOUSLY EXCLUDED EVIDENCE OF THIRD PARTY CULPABILITY FOR THE MURDERS OF HARDING AND JACKSON AND EVIDENCE THAT APPELLANT WAS NOT ANGRY AT HARDING BECAUSEOF THE THEFT OF HIS DRUGS .............. 108 A. Proceedings Below .............- 2 ee eee cent eens 109 B. The Trial Court AbusedIts Discretion In Excluding The Relevant Evidence OfDonte Vashaun’s Violent Assault On Donna MeekeyAs Part ofVashaun’s SchemeTo Steal Appellant’s Cocaine From Harding And Thereby Denied Appellant A Fair Trial And iv TABLE OF CONTENTS Page The Right To Present A Defense...................4. 114 The Trial Court AbusedIts Discretion In Excluding Evidence That Appellant Was Angry At Harding For Not Stopping Donte Vashaun’s Assault On Donna Meekey Rather Than For The Theft OfHis Drugs And Thereby Denied Appellant A Fair Trial And The Right To Present A Defense ....... 124 The Trial Court’s Erroneous Exclusion OfRelevant Defense Evidence Impeaching the Prosecution’s Theory OfThe Case WasPrejudicial and Requires Reversal 2.0... 0... cece eee eee teen etee eens 129 1. The Exclusion of Evidence of Third Party Culpability Was Prejudicial .................. 130 The Exclusion of Evidence That Appellant's Anger at Harding Was Not Related to the Theft of His Drugs Was Prejudicial ............ 135 The Exclusion of the Defense Evidence, Considered Singly or Together and Under Any Prejudice Standard, Requires Reversal of the Judgment 1... 0... .. cee eee eee 137 THE COURT ERRED IN ADMITTING SPECULATIVE AND IRRELEVANT EXPERT TESTIMONY THAT UNREADABLEFINGERPRINTS AT THE MURDER SCENE MIGHT POSSIBLY BELONG TO APPELLANT.... 139 A. B. Proceedings Below ..... cece eee ee eee ne ene nnee 139 The Fingerprint Examiner’s Irrelevant Speculation Linking Unreadable Fingerprints Found At The Crime Scene To Appellant Was Inadmissible Under Evidence Code Sections 210 And 801, AndIts Admission Violated The Federal Constitution ......... 140 TABLE OF CONTENTS Page C. The Admission OfThe Fingerprint Examiner’s Speculative And Irrelevant Opinion Was Prejudicial and Requires Reversal .......... 2.00 cece cece eeeee 146 VI. THE TRIAL COURT’S INSTRUCTION TO THE JURY THAT IT COULD DRAW ADVERSE INFERENCES FROM APPELLANT’S FAILURE TO EXPLAIN OR DENY EVIDENCE AGAINST HIM WASPREJUDICIAL ERROR 2... 0.0... ccc cece eee nee e eee ene 149 A. The Trial Court Erred In Instructing The Jury Pursuant To CALJIC No. 2.62 Because Appellant Did Not Fail To Deny Or Explain The Evidence Against Him ..... 0... cece cee tenes 150 B. The Court’s Error In Instructing Pursuant To CALJIC No. 2.62 Requires Reversal .............. 153 C. The ErroneousInstruction Pursuant To CALJIC No. 2.62 Also Resulted In A Prejudicial Due Process Violation By Creating An Irrational Permissive Inference ....... 0... cece eee cette 158 Vil. A SERIES OF GUILT PHASE INSTRUCTIONS UNDERMINED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBTIN VIOLATION OF APPELLANT’S RIGHTS TO DUE PROCESS,A TRIAL BY JURY, AND RELIABLE VERDICTS, AND REQUIRES REVERSAL OF THE JUDGMENT............ 161 A. The Instruction On Circumstantial Evidence Under CALJIC No. 2.02 Undermined The Requirement OfProofBeyond A Reasonable Doubt ..... 0.0... cccce eee eet eens 162 TABLE OF CONTENTS Page B. The Instructions Pursuant To CALJIC Nos. 2.21.2, 2.22, 2.27, 2.51, And 8.20 Also Vitiated The Reasonable Doubt Standard .................... 165 C. The Court Should Reconsiderits Prior Rulings Upholding the Defective Instructions ................ 170 D. Reversal is Required .............. 0.02 e eee eee eee 172 VIII. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION ............. 202 e eee eee 174 A. The Broad Application Of Section 190.3 Subdivision (a) Violated Appellant’s Constitutional Rights 20... . ccc cece cee eee eee en eene 174 B. The Death Penalty Statute And Accompanying Jury Instructions Fail To Set Forth The Appropriate Burden OfProof ............ 00. e eee eee ee eee 176 1. Appellant’s Death Sentence Is Unconstitutional BecauseIt Is Not Premised on Findings Made Beyond a Reasonable Doubt ................. 176 2. Some Burden of Proof Is Required, or the Jury Should Have Been Instructed That There Was No Burden of Proof ................006- 178 3. Appellant’s Death Verdict Was Not Premised on Unanimous Jury Findings ................. 179 a. Aggravating Factors .................. 179 b. Unadjudicated Criminal Activity ........ 180 vil TABLE OF CONTENTS The Instructions Caused the Penalty Determination to Turn on an Impermissibly Vague and Ambiguous Standard ........... TheInstructions Failed to Inform the Jury That the Central Determination Is Whether Death Is the Appropriate Punishment ....... The Instructions Failed to Inform the Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required to Return a Sentence OfLife Withoutthe Possibility ofParole ........... TheInstructions Failed to Inform the Jurors that Even If They Determined That Aggravation Outweighed Mitigation, They Still Could Return a Sentence of Life Withoutthe Possibility ofParole ........... The Instructions Violated the Sixth, Eighth and Fourteenth Amendments ByFailing to Inform the Jury Regarding the Standard of Proof and Lack ofNeed for Unanimity Asto Mitigating Circumstances ............ The Penalty Jury Should Be Instructed on the Presumption of Life ...............0-006. Failing To Require That the Jury Make Written Findings Violates Appellant’s Right To Meaningful Appellate Review ........ 0... cece ene TheInstructions To The Jury On Mitigating And Aggravating Factors Violated Appellant’s Constitutional Rights 0.0... ccceeteen eens viii Page ... 181 ... 182 ... 183 ... 184 ... 185 ... 186 ... 187 ... 188 TABLE OF CONTENTS Page 1. The UseofRestrictive Adjectives in the List of Potential Mitigating Factors ........... 188 2. The Failure to Delete Inapplicable Sentencing Factors 2... eeecent teens 188 3. The Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators ....... 02. cece eee eet eee 189 E. The Prohibition Against Inter-Case Proportionality Review Guarantees Arbitrary And Disproportionate Impositions OfThe Death Penalty .................. 189 F, The California Capital Sentencing Scheme Violates The Equal Protection Clause .................00000. 190 G. California’s Use OfThe Death Penalty As A Regular Form OfPunishment Falls Short Of International Norms .............-0 cee eee eee eee 191 IX. 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 2... 0.cencenee 192 CONCLUSION .... 0...ceceeee ete enn 196 CERTIFICATE OF COUNSEL ........ 0... 0c cece eee ene 197 1X TABLE OF AUTHORITIES Page(s) FEDERAL CASES Adamsv. U.S ex. Rel. McCann (1942) 317 US. 269 2...ceeeenee 26 Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862 2.0... ceceeects 193 Apprendi v. New Jersey (2000) 530 U.S. 466 2...ceeee eee 176, 181 Arizonav. Fulminante (1991) 499 ULS. 21720cen64, 65, 66 Atkins v. Virginia (2002) 536 U.S. 304...ecteen ne neee 146 Badger v. Carwell (9th Cir. 1978) 587 F.2d 968 2...eceee eee 62 Ballew v. Georgia (1978) 435 US. 223 2.cetenn n eens 179 Beck v. Alabama (1980) 447 U.S. 625 2.ccee eens 146, 162, 163 Blakely v. Washington (2004) 542 US. 296...cece teenies 176, 181 Blystone v. Pennsylvania (1990) 494 U.S. 299occcent ees 182, 185 Boydev. California (1990) 494 U.S. 3700.cenees 183, 185 TABLE OF AUTHORITIES Page(s) Bribiesca v. Galaza (9th Cir. 2000) 215 F.3d 1015.0...eeeeee 48 Cage v. Louisiana (1990) 498 US. 39 0.ceete eens 161, 166, 172 Caldwell v. Mississippi (1985) 472 US. 320 2...ceeeee eee eee 195 California v. Trombetta (1984) 467 U.S. 479 20.ceeteen ee neee 119 Carella v. California (1989) 491 US. 263 2...eee ee ee eee 161, 163, 172 Chambersv. Mississippi (1973) 410 USS. 2840.ceeeee eens... 119 Chapmanv. California (1967) 386 US. 18 2.0...ceeee teen eens passim Cooperv. Fitzharris (9th Cir. 1978) 586 F.2d 1325 20...eecee te eens 192 Crane v. Kentucky (1986) 476 ULS. 683 20.ccee eee eee ees 119, 127 Deck v. Missouri (2005) 544 U.S. 622 2...cee ee eee nee 57, 61 Delo v. Lashley (1983) 507 U.S. 272 0.0ceneteenies 187 DePetris v. Kuykendall (9th Cir. 2001) 239 F.3d 1057 2...ceeeee 121, 132 TABLE OF AUTHORITIES Page(s) Donnelly v. DeChristoforo (1974) 416 US. 6372.ceeeee 145, 192, 194 Eddings v. Oklahoma (1982) 455 U.S. 104 2...ceceee nee 122 Estelle v. McGuire (1991) 502 U.S. 62 2.ceeeee 102, 145, 171 Estelle v. Williams (1976) 425 US. 501...eceee eens65,186 Faretta v. California (1975) 422 U.S. 806 2...eeeetree eee passim Francis v. Franklin (1985) 471 U.S. 307 20ceeens 164, 171 Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270 0...eee133 Gill v. Ayers (9th Cir. 2003) 342 F.3d 911 2...eeeeee eee 121 Godinez v. Moran (1993) 509 U.S. 3892.eeeeee eens 40, 41 Gonzalez v. Pliler (9th Cir. 2003) 341 F.3d 897 2... eeeeee eee ees 58 Green y. Georgia (1974) 442 US.952.ceeee teen neces 128 Greene v. Lambert (9th Cir. 2002) 288 F.3d 1081 2.0...eeeeee eee 121 xii TABLE OF AUTHORITIES Page(s) Gregg v. Georgia (1976) 428 U.S. 153 2.0.ccee tee enna 188 Harmelin v. Michigan (1991) 501 U.S. 957cccete eee eee en eeee 180 Harris v. Wood (9th Cir. 1995) 64 F.3d 1432 22...ceeees 194 Hawkins v. Comparet-Cassani (2001) 251 F.3d 1230... 0...eeeeens 60, 62, 63 Hicks v. Oklahoma (1980) 447 U.S. 343 0...cceee ee tenes 178, 184 Hirschfield v. Payne (9th Cir. 2005) 420 F.3d 922 1.0...cete teens 42 Hitchcock v. Dugger (1987) 481 U.S. 393 2.cccee ete eee ene eee 195 Holbrook v. Flynn (1986) 475 U.S. 560 20.cccee ee teen teens 57 Holmes v. South Carolina (2006) 126S.Ct.1727 2...ceceeens 109, 121 Illinois v. Allen (1970) 397 U.S. 3372.eenen ees passim In re Little (1972) 404 U.S. 553 2.ceceete n ene enes 45 In re Winship (1970) 397 U.S. 358 21.eeeeee eens passim Xiil TABLE OF AUTHORITIES Page(s) Jackson v. Virginia (1979) 443 U.S. 307 20.ceeee eee eee 163, 166 Johnson v. Mississippi (1988) 486 U.S. 578 oocenceeeens 181 Kanev. Espitia (2005) U.S., 126 S.Ct. 4072eeeee 48 Kentucky v. Stincer (1987) 482 U.S. 730 2...cecece ete een eee 62 Killian v. Poole (9th Cir. 2002) 282 F.3d 1204 0.0...eee eee 138, 194 Kyles v. Whitley (1995) S14 US. 419 Looceceee teens 134 Langnes v. Green (1931) 282 U.S. 531...eects61 Lockett v. Ohio (1978) 438 U.S. 586 2...eee 122, 146, 185, 188 Martinez v. Court ofAppeal ofCalifornia Fourth Appellate Dist. (2000) 528 U.S. 152 2...ccce eee nee ene nee 41 Maynard v. Cartwright (1988) 486 ULS. 356 20kccce eee eee eee 175, 182 McKaskle v. Wiggins (1984) 465 U.S. 168 20...ceeeeee 1, 27, 48 McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 2.0... eee eee 102, 105, 106, 145 xiv TABLE OF AUTHORITIES Page(s) McKoy vy. North Carolina (1990) 494 US. 4330ceeee eee en eae 179, 186 Mills v. Maryland (1988) 486 U.S. 367 00.cceee eee 185, 186, 188 Mongev. California (1998) 524 US. 721 20ccc cee eee eee ete 180 Mullaney v. Wilbur 1975) 421 U.S. 684 2...ccccee eee teen ences 165 Myersv. YIst (9th Cir. 1990) 897 F.2d 417 2...eeeeee eee 180 Penry v. Lynaugh (1989) 492 U.S. 3020.eecteee eee 146 Peters v. Gunn (9th Cir. 1994) 33 F.3d 1190 2...cent42 Riggins v. Nevada (1992) 504 U.S.127 2.cetene tenes 65 Ring v. Arizona (2002) 536 U.S. 584, 2...eeeeee 176, 179, 181 Rock v. Arkansas (1987) 483 U.S. 44 00ccceee ees 119, 127, 128 Roper v. Simmons (2005) 543 U.S. 551 2.ccceee eee eeaes 191 Sandstrom v. Montana (1979) 442 U.S. 510. 2.ccccence eet e teens 164 XV TABLE OF AUTHORITIES Page(s) Skipper v. South Carolina (1986) 476 U.S. 1...ceeee nee n ene 195 Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732 2.eens 145 Snyder v. Massachusetts (1934) 291 U.S.9722.eeee ene eens 62 Spain v. Rushen (9th Cir. 1989) 883 F.2d 713 2...eceee eee 58 Sullivan v. Louisiana (1993) 508 U.S. 275 2...ccteeens passim Trop v. Dulles (1958) 356 US. 86 0.eceterene 191 Tuilaepa v. California (1994) 512 U.S. 967 2.ccence e eens 175 Tyler v. Cain (2001) 533 U.S. 656 2...eee ee eee teen eens 158 U.S. v. Lopez-Osuna (9th Cir. 2000) 232 F.3d 657 2...eceee nee 36 Ulster County v. Allen (1979) 442 U.S. 140 0cceee eens 158 United States v. Brock (7th Cir. 1998) 59 F.3d 1077 2.2.etenen 46 United States v. Dougherty (D.C.Cir. 1972) 473 F.2d 1113 2...ceeees passim XVi TABLE OF AUTHORITIES Page(s) United States v. Durham (11th Cir. 2002) 287 F.3d 1297 2...eens58 United States v. Ebens (6th Cir. 1986) 800 F.2d 1422 0...ccces 133 United States v. Flewitt (9th Cir. 1989) 874 F.2d 669 .....ceeee eee 35, 45 United States v. Gagnon (1985) 470 U.S. 522 0.cccene e ence eens 62 United States v. Gainey (1965) 380 U.S. 63 2...encete eens 158 United States v. Hall (Sth Cir. 1976) 525 F.2d 1254 20...ceee eee 171 United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104 2...eeeeee 166 United States v. Arlt (9th Cir. 1994) 41 F.3d 516 2.0...ceeee eens 42 United States v. Toney (6th Cir. 1979) 599 F.2d 787 1...cceee eee 133 United States v. Wallace (9th Cir. 1988) 848 F.2d 1464 2.0...eeeeee 192, 194 United States v. Necoechea (9th Cir. 1993) 986 F.2d 1273 2.0...ceeeens 192 Vasquez v. Hillery (1986) 474 U.S. 254 0.ccete e nnn eeaes 174 xvii TABLE OF AUTHORITIES Page(s) Victor v. Nebraska (1994) SITUS. 1eccee ence ene nes 161 Walter v. Maass (9th Cir. 1995) 45 F.3d 1355 22.eeees 102 Wardius v. Oregon - (1973) 412 U.S. 470, 4722.ceeens 128, 184 Washington v. Texas (1967) 388 U.S. 14...eccnr eeees 119, 128 Webb v. Texas | (1972) 409 U.S.95 2...ceeee eee eens 128 Woodson v. North Carolina (1976) 428 U.S. 290 2.ceeeee 179, 182, 185 STATE CASES Brown v. Colm (1974) 11 Cal.3d 639 20.eccece tee ee ene 83 Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374 2...ccees 171 Carey v. Lima, Salmon and Tully Mortuary (1959) 168 Cal.App.2d 42 2.0...eeeeee 82 City ofLong Beach v. Farmers and Merchants Bank ofLong Beach (2000) 81 Cal.App.4th 780 2... ceee eee 61 Commonwealth v. Patterson (Mass. 2005) 840 N.E. 2d 12 0...eccc eens 142 XViii TABLE OF AUTHORITIES Page(s) Eisenmayer v. Leonardt (1906) 148 Cal. 596 2...eeeeee enn nes 143 Hammarley v. Superior Court (1979) 89 Cal.App.3d 388 2.0... cece eee eee eens 126 In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558 22...eeeeens 141 In re Marquez (1992) 1 Cal.4th 584, 605 2...ceeeee ee eee 195 Jennings v. Palomar Pomerado Health Systems (2004) 114 Cal.App.4th 1108 2.0.2.0... 2 eee ee eee ee eee 144 Korsakv. Atlas Hotels (1992) 2 CalApp.4th 1516 2...eeeee 93 Long v. California-Western States Life Insurance Co. Cal. (1955) 43 Cal.2d 871 2...ceceeee eens 143 Miller v. Los Angeles County Flood ControlDistrict (1973) 8 Cal.3d 689 20...cece eee et eee eees 93 Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113 2.0...eecee eee eee ee 144 People v. Anderson (2001) 25 Cal4th 543 2.eeeee eee 176, 177, 181 People v. Archer (2000) 82 Cal.App.4th 1380 0... ee eee ee eee eee 192 People v. Arias (1996) 13 Cal4th92 22.eeeeee 178, 182, 185, 187 XiX TABLE OF AUTHORITIES Page(s) People v. Avila (2006) 38 Cal.4th491...eeeeens 116, 188 People v. Avitia (2005) 127 Cal.App.4th 185 2...eeeee ees passim People v. Ayala (2000) 23 Cal.4th 225 2...eeeee ett eee 98 People v. Babbitt (1988) 45 Cal.3d 660 2.0...cetee eee 115, 117 People v. Bacigalupo (1993) 6 Cal.4th 457 2...eeeet eens 182 People v. Beyea (1974) 38 Cal.App.3d 176 «0.2... eee cece eee tee etenees 96 People v. Bigelow (1985) 37 Cal.3d 731 0...cenceeeee 39 People v. Blair (2005) 36 Cal.4th 686 1.0.2... cece eee eee ee ees 36, 42, 175, 177 People v. Bloom (1989) 48 Cal.3d 1194 2...ceeeen eens 34 People v. Boyette (2002) 29 Cal4th 381 2...eteeee 126 People v. Breaux (1991) 1 Cal4th281...eeeeee 182 People v. Brown (2004) 34 Cal.4th 382 2.0eeeee 175 TABLE OF AUTHORITIES Page(s) People v. Brown (1988) 46 Cal.3d 432 20.ceceences 195 People v. Brown (2004) 33 Cal.4th 892 2...ccee eee eens 86 People v. Brown (1985) 40 Cal.3d 512 2...ccccee eee eens 184 People v. Campbell (1978) 87 Cal.App.3d 678 2.0.0... ccc ccc eee ene eens 153 People v. Cardenas (1982) 31 Cal.3d 897.0...ceeee eee 95, 96, 104, 105 People v. Carson (2005) 35 Cal.4th 1 oo...cccee eee eens passim People v. Carter (2003) 30 Cal.4th 1166 2.1...eeecee es 84, 96, 97 People v. Castillo (1997) 16 Cal.4th 1009 2...ceeeceens 167 People v. Castro (1958) 38 Cal.3d 301 2...eeete eens 158 People v. Champion (1995) 9 Cal.4th 879 20.eceee eee 90, 185 People v. Chapple (2006) 138 Cal.App.4th 540 2...eceee ees 80 People v. Chavez (1985) 39 Cal.3d 823 2...ccccence eens 94 TABLE OF AUTHORITIES Page(s) People v. Clark (1992 )3 Cal-4th41...ceeeee eee 36, 38, 46 People v. Cleveland (2004) 32 Cal.4th 704 2...0.eeeeens 162, 170 People v. Cole (1956) 47 Cal.2d99 2...ceeeens 81, 82 People v. Cook (2006) 39 Cal.4th 566 2.0...188, 191 People v. Cooper (1991) 53 Cal.3d 771 2...ceeee en eens 93 People v. Cox (1991) 53 Cal.3d 618 2...eeeeee eens 60, 97 People v. Crandell (1988) 46 Cal.3d 833 1.0...ceceeee eens 40, 156 People v. Crittenden (1994) 9 Cal.4th 83 0.0... cece cece e eee eee ee ee eee ees 162, 170, 171 People v. Cudjo (1993) 6 Cal.4th 585 2...eeeens 122 People v. Cunningham (2001) 25 Cal.4th 926 2...eecee eee 123, 124, 126 People v. Curry (1977) 75 Cal.App.3d 221 2.0...oeeee38 People v. Daggett (1990) 225 Cal.App.3d 750 . 0.0...eee eee 133, 134,136 TABLE OF AUTHORITIES Page(s) People v. Davenport (1985) 41 Cal.3d 247 2.ccccece eee eee eeas 189 People v. Davis (1987) 189 Cal.App.3d 1177 2.0... ceeceeens 37, 46 People v. De La Plane (1979) 88 Cal.App.3d 223 2...ccccee eee eet eens 117 Peoplev. Dent (2003) 30 Cal.4th 213 2...ccceee eens passim People v. Dewberry (1959) 51 Cal.2d 548 2...eeeee cee eee 167 People v. Duncan (1991) 53 Cal.3d955 2...ceecence 183, 184 People v. Duran (1976) 16 Cal.3d 282 2...eeeeee eens passim People v. Edwards (1992) 8 CalApp.4th 1092 2...ccc eee eee eee 156 People v. Fairbank (1997) 16 Cal.4th 1223 2...cccee cent eee 176 People v. Fauber (1992) 2 Cal.4th 792 22.ccceen eee eens 187 People v. Fierro (1991) 1 Cal.4th 173 20.cneee eens 60, 190 People v. Flood (1998) 18 Cal.4th 470 2.ccceee eee 151, 163 XXiil TABLE OF AUTHORITIES Page(s) People v. Fudge (1994) 7 Cal.4th 1075 2...cee ee eee 123, 124, 129 People v. Gamez (1991) 235 Cal.App.3d 957 0.0... ccc cece eee eee ees 84 People v. Garceau (1993) 6 Cal4th 140 2...eeeeee Ih: 117, 126 People v. Gardeley (1997) 14 Cal.4th 605 2...ceeeee 81, 82, 83 People v. Ghent (1987) 43 Cal.3d 739 2... eeccener eee 191 People v. Gonzales (1990) 51 Cal.3d 1179 20.eeeeee 165 People v. Gonzalez (2006) 38 Cal.4th 932 2...ceeeee eens 83 People v. Gonzalez (2005) 126 Cal.App.4th 1539 2.0...eee eee eee 80, 83, 84 People v. Graham (1969) 71 Cal.2d 303 22...cecette eee 167 People v. Green (1981) 27 Cal.3d 10...ceceeee ene 117 People v. Griffin (2004) 33 Cal.4th 536 2.0...ceeene 177 People v. Guerra (2006) 37 Cal.4th 1067 2...eeenen 80, 81 XXIV TABLE OF AUTHORITIES Page(s) People v. Hall (1986) 41 Cal.3d 826 2...ceeee passim People v. Hamilton (1989) 48 Cal.3d 1142 22.eeeee 189 People v. Hamilton (1963) 60 Cal.2d 105 2...ceeeee 195 People v. Hannon (1977) 19 Cal.3d 588 2...ceceeens 158 People v. Hardy (1992) 2 Cal.4th 86 2...ccceee tee eens 185 People v. Harrington (1871) 42 Cal. 165 2.ccceen nee 54, 57 People v. Harris (2005) 37 Cal.4th 310 2...eeee eee 117, 118 People v. Hawthorne (1992) 4 Cal4th43cecee eee 123, 176 People v. Hayes (1990) 52 Cal.3d 577 oooeees 194 People v. Haynes (1983) 148 Cal.App.3d 1117 2...eeeee 150 People v. Hernandez (2004) 33 Cal.4th 1040 2...ceeee 97 People v. Hernandez (2003) 30 Cal.4th 835 2... eeecece eee 104, 147 TABLE OF AUTHORITIES Page(s) People v. Hightower (1996) 41 Cal.App.4th 1108 22...ceeee eee 42 Peoplev. Hill (1998) 17 Cal.4th 800 22...ceeee eee 59, 192 People v. Hillhouse (2002) 27 Cal.4th 469 2...eeeeee eee 189 People v. Hogan (1982) 31 Cal.3d 815 2...ceeee eens 93 People v. Holt (1984) 37 Cal.3d 436 22...ceeee eee 138, 194 People v. Hopkins (1992) 10 Cal.App.4th 1699 2...eeeeee 61 People v. Humphrey (1996) 13 Cal.4th 1073 2...eeceeee eee 86, 144 People v. Jackson (1996) 13 Cal.4th 1164 20...eeeeee 156, 162 People v. Jennings (1991) 53 Cal.3d 334 2...eeeee ee 170 People v. Jones (1998) 17 Cal.4th 279 2.cece eee 151, 163 People v. Joseph (1983) 34 Cal.3d 936 2.0...eeecette tenes 27,49 People v. Kainzrants (1996) 45 Cal.App.4th 1068 2.0...2.eeeees 171 XXVi TABLE OF AUTHORITIES Page(s) People v. Kelly (1980) 113 Cal.App.3d 1005 22...eeecee eee eee 183 People v. Kennedy (2005) 36 Cal.4th 595 okceeee eee tenes 175 People v. Kondor (1988) 200 Cal.App.3d 52 0.0...eeeeee tenes 151 People v. Kraft (2000) 23 Cal.4th 978 2...cccet ee teenies 117 People v. Lamer (2003) 110 Cal.App.4th 1463 2.0.2...eeeeee teens 151 People v. Lenart (2004) 32 Cal4th 1107 2...eeeee eee 178 People v. Lopez (1977) 71 Cal.App.3d 568 2.0.0.2... cece ec ee eee eee 25, 38 People v. Lucas (1995) 12 Cal4th 415 2.ceeete eens 109 People v. Luparello (1986) 187 Cal.App.3d 410 2.0... cee ee eee eee 101 People v. Maestas (1993) 20 Cal.App.4th 1482 22.eecee eee 95, 105 People v. Manriquez (2005) 37 Cal.4th 547 2...eeeeee eens 190 People v. Mar 2002) 28 Cal.4th 1201 22...ceceeee assim( P XXVil TABLE OF AUTHORITIES Page(s) People v. Marsh (1985) 175 Cal.App.3d 987 2.0... cee cece eens 151, 154 People v. Martinez (1999) 20 Cal4th 225 2.eeeeee eee eee 117 People v. McAlpin (1991) 53 Cal.3d 1289 0...ceeeee eee 81, 82 People v. McDaniels (1980) 107 Cal.App.3d 989 22...ceeeet eens 84 People v. McKenzie (1983) 34 Cal.3d 616 0...ceeetn eee 38 People v. Medina (1995) 11 Cal4th 694, 763 2...eee ee eee 180 People v. Mendez (1924) 193 Cal. 53 2.ceeennteenes 117 People v. Minifie (1996) 13 Cal.4th 1055, 1071 2.0... oe eee eee eee 133, 134, 136 People v. Moore (1954) 43 Cal.2d 517, 526-529 2.0...ceeeens 183 People v. Munoz (1984) 157 Cal_App.3d 999, 1013 2.0...eeeeee 96 People v. Noguera (1992) 4 Cal.4th 599, 633-634 2...ceeeee ens 170 People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 2.0... eee ee ee eee 84, 96 XXVili TABLE OF AUTHORITIES Page(s) People v. Ortiz (1990) 51 Cal.3d 975, 988-989 20...ceeeee 49 People v. Partida (2005) 37 Cal.4th 428, 433-439 .. 0.eee eee ee 102, 103, 146 People v. Perez (1981) 114 CalApp 3d 470 0.ccccc eens 87 People v. Peters (1982) 128 Cal.App.3d 75 2...eceee ene 151 People v. Poplawski (1994) 25 Cal.App.4th 881 2.2...cece eens 42, 49 People v. Prieto (2003) 30 Cal.4th 226 1.2...eceee 177, 179 People v. Purvis (1963) 60 Cal.2d 323 2...ceete teen eee 192 People v. Reeder (1979) 82 Cal.App.3d 543 2...eeeee eee 126 People v. Rice (1976) 59 Cal.App.3d 998 oo.ectee eens 183 People v. Riel (2000) 22 Cal.4th 1153 2.eeeee nee 170 People v. Rivers (1993) 20 Cal.App.4th 1040 2...eececee eens 168 People v. Robinson (2005) 37 Cal.4th 592 0.eceee eee 117 XXX TABLE OF AUTHORITIES Page(s) People v. Roder (1983) 33 Cal.3d 491 2...eeeeee 161, 164, 172 People v. Roehler (1985) 167 CalApp.3d 353 2...eeeeee ees 150 People v. Rudd (1998) 63 CalApp.4th 620 2.0...eeeeeees 37 People v. Saddler | (1979) 24 Cal.3d 671 2...eceeeens passim People v. Salas (1976) 58 Cal.App.3d 460 22... cccece eee eee 167 People v. Salas (1978) 77 Cal.App.3d 600 2.0...cece eee eee 38 People v. Sanders (1990) 51 Cal.3d 471 2.0.ceceree eens 185 People v. Sandoval (1992) 4 Cal4th 155 2.cece cee etree 116 People v. Satchell (1971) 6 Cal.3d 28 2...eeeence eens 150 People v. Schmeck (2005) 37 Cal.4th 240 2...eeeeee eee 162, 174 People v. Sedeno (1974) 10 Cal.3d 703 2...eccece eee ene 177 People v. Sengpadychith (2001) 26 Cal.4th 316, 325 2...ceeeee 190 TABLE OF AUTHORITIES Page(s) People v. Serrato (1973) 9 Cal.3d 753, 766 1...eeeee teens 169 People v. Smith (2005) 35 Cal.4th 334 2...eecceee ene 185 People v. Smith (1992) 9 Cal.App.4th 196 2...ceeeens 151 People v. Snow (2003) 30 Cal.4th 43 0...etete 191 People v. Stewart (1983) 145 CalApp.3d 967 2.0...eeceeens 171 People v. Superior Court (George) (George) (1994) 24 CalApp.4th 350 2...ceeeee 37 People v. Taylor (1990) 52 Cal.3d 719 2...ccceet 179 People v. Teron (1979) 23 Cal.3d 103 2...eeeeenes 38 People v. Terry (1964) 61 Cal.2d 137 2...ceee ee eee nes 122 People v. Torres (1995) 33 CalApp.4th 37 2...eeeeee eee 81, 84 People v. Valdez (2003) 112 Cal.App.4th 925 2.ceeens 85 People v. Varona (1983) 143 Cal.App.3d 566 2.2.0...ceeeens 133 TABLE OF AUTHORITIES Page(s) People v. Ward (2005) 36 Cal.4th 186. 2...eee181 People v. Watson (1956) 46 Cal.2d 818 2...ceeeens passim People v. Wayne (1953) 41 Cal.2d 814 20.2eeeeens 156 People v. Welch (1999) 20 Cal.4th 701 2... eeceee eee 37, 38, 41, 48 People v. Wells (1949) 33 Cal.2d 330 2...ceceeee eens 137 People v. Westlake (1899) 124 Cal. 452 2.cceens 171 People v. Williams (1992) 3 CalApp.4th 130 2...eeeee eens 92 People v. Williams (1969) 71 Cal.2d 614 2...cceee eee 169 People v. Williams (1971) 22 Cal.App.3d 34 2...ceeens 192 People v. Williams (1988) 44 Cal.3d 883 1.0... Lecceene ees 179 People v. Williams (1997) 16 Cal.4th 153 0.eeee eens 103 People v. Windham (1977) 19 Cal.3d 121 2.ceenee 41 XXXii TABLE OF AUTHORITIES Page(s) People v. Woodard (1979) 23 Cal.3d 329 ......eeeee teenies 104 CONSTITUTIONS Cal. Const.art.1, §§ Tic cece cence eee eae 161, 163, 170 |161, 163, 170 16 ccc cece eee eens 161, 163, 170 162, 163, 170 U.S. Const. Amends. Occcece eee tenes 161, 163, 170 rr139, 163, 170, 187 14Leeeee passim STATE STATUTES Cal. Evid. Code, §§ 210.cc ccc ee eee ene passim | 117 5io117 passim oA178 |)80 702, subd.(a) ........- eee eee eee eee eee 93 8002cccee eee eens 80 50passim 801, subd.(b) .............2-0 0008. 80, 141 Health & Saf. Code, § 11350 2... eee ce ee eee ee 16 XXXili Cal. Pen.Code, §§ Veh. Code, § Cal. Rules of Court, CALJIC Nos. TABLE OF AUTHORITIES Page(s) 186.22 0... eee cee eee 83, 84 173,4 190.3, subd.(b) ... 2... eee eee passim 1050 2...eeeee tte 31 1054.5 .o ccc eee eee ene 45 1 eyC:)180 1192.7, subd. (c)(1) .... 2.2 eee eee eee 3,4 1192.7, subd. (c)(23) ... 1... eee ee eee 3,4 1239, subd. (b)(2) 2... eee ee ee eee 3 1259 .ceeeee ees 151, 163 1469 2...eeecee ene 151 12280, subd. (a)(2) ..........-- Joes ee eee 91 105)16 COURT RULES 13 occccete ee teens 3 4.42, subd. (b),(€) .. 0... eee ee ee eee 190 JURY INSTRUCTIONS 2.03 Lo cece eee eee eee eee 155, 156, 159 Q2V Leeee eee 157, 161 2.22 Leeeee 161, 165, 168, 170 2.27 Lic cee ce eee 161, 165, 169, 170 ZL Lees passim 2.62 oc cece ccc cee eee eee ene passim 8.20 Loic eee cee eee eee 161, 165, 169 So174,178,188,189 8.85 factor (d) ..... 2. cece eee eee 188 8.85 factor (g) ..... cece ee eee eee 188 XXXIV TABLE OF AUTHORITIES Page(s) OTHER AUTHORITIES Presumption of Life: A Starting Pointfor Due Process Analysis ofCapital Sentencing (1984) 94 YaleL.J.35 0.0... cece eee eee ee 186 XXXV IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORN Vv. Los Angeles County Superior Court No BA106878-01 ) JA, ) ) Plaintiff and Respondent, ) No. S$065573 ) ) FRANK KALIL BECERRA, ) ) )Defendant and Appellant. _) APPELLANT’S OPENING BRIEF INTRODUCTION “T don’t want to hear from you anymore.” (Hon. David M. Horwitz, Los Angeles Municipal Court, to appellant Frank Becerra, 1 CT Supp.III 87.) Central to the constitutional right of self-representation in a criminal trial is the right of the defendant“to have his voice heard.”' This right stands regardless ofhow confused, annoying or inadequate that voice may be. In this case the trial court properly granted, but then abruptly and arbitrarily revoked, appellant’s self-representation. Its unjustified action " McKaskle v. Wiggins (1984) 465 U.S. 168, 174. 1 rendered meaningless appellant’s Sixth Amendmentright to defend himself in his own voice. After revoking appellant’s self-representation, the trial court’s repeated errors damaged appellant’s ability to fairly present his case to the jury. Ina prosecution that was long on motive and innuendoandshort on other evidence, credibility was critical. Appellant, whom the court knew had a serious heart condition, was forcedto testify while wearing a stun belt, which had a significant and deleterious effect on appellant’s ability to presenthis caseto the jury. Thetrial court precluded appellant from presenting crucial evidence pointing to a third party’s culpability for the charged murders and impeachingthe prosecution’s case against him. And the trial court erroneously allowed the prosecution to paint appellant with the sins of the Mexican Mafia — a gang to which all agreed he did not belong. In ploy to artificially inflate the evidence against appellant, the prosecutor repeatedly introduced speculative, irrelevant and inflammatory expert testimony. Despite these repeated errors, which manifestly impaired appellant’s ability to present his defense, the case against him was not overwhelming. The jury deliberated appellant’s culpability for the two first degree murders over the course of four days before convicting him and announceda deadlock during penalty phase deliberations before returning a death sentence. As shown in this appeal, the trial court’s repeated state law and federal constitutional errors prejudiced appellant and require reversal of the judgment. STATEMENT OF APPEALABILITY This automatic appeal is from a final judgment imposing a verdict of death. (Pen. Code, § 1239, subd. (b),” Cal. Rules of Court, rule 13.) STATEMENT OF THE CASE On December30, 1994, a complaint wasfiled in the Municipal Court of Los Angeles County charging appellant, Frank Kalil Becerra, in Count 1 with the murder (§ 187) ofJames Harding, also known as James Fontaine, on or about December26, 1994; in count 2 with the murder(§ 187) of Herman Jackson on or about the same date, and also with the special circumstance ofmultiple murder (§ 190.2, subd. (a)(3)); and in Count 3, with an assault with a deadly weapon (§ 245, subd. (a)(1)) upon George McPherson on or about December 24, 1994. The complaint further alleged that each of the offenses charged in counts 1, 2 and 3 wasa serious felony (§§ 1192.7, subd. (c)(1) and 1192.7, subd. (c)(23)). (ICT 6-8.) On January 5, 1995, appellant entered pleas ofnot guilty and denied all special allegations, enhancements andpriors. (1 CT Supp III 6.) On May19, 1995, the court granted appellant’s motion to represent himself (1 * All statutory references are to the Penal Code unless otherwise indicated. 3 In this brief appellant abbreviates the citations to the record as follows: “RT”is the reporter’s transcript on appeal; “CT” is the clerk’s transcript on appeal; “Supp CT”refers to the clerk’s supplemental transcripts on appeal. Forall citations, appellant gives the volume number before and the page numberafter the transcript designation, e.g. “I CT 6-7” refers to the first volumeofthe clerk’s transcript at pages 6-7. The clerk’s supplemental transcript on appeal consists of six sets of materials, one of which is contained in two separate volumes; these are referenced by the volume of the supplementaltranscript, followed by the supplemental clerk’s transcript numberand pagecitation, e.g., “1 Supp CT HI 107.” Appellant follows the court reporter’s system of labeling the transcript volumes: roman numerals are used for the volume numbersofthe clerk’s transcript and arabic numerals are used for the volume numbersofthe reporter’s transcript and the volume numbersofthe clerk’s supplemental transcripts. 3 CT SuppIII 38; I CT 13), and on September 28, 1995, the court revoked defendant’s pro perstatus (I CT 16). On February 13, 1996, the preliminary hearing washeld, and appellant was held to answeronall the counts and the special circumstance allegation. (I CT 28-159.) On February 27, 1996, an information was filed in Los Angeles County Superior Court charging appellant as follows: in count 1 with the murder (§ 187). of James Harding on or about December 26, 1994; in count 2 with the murder (§ 187) of Herman Jackson on or about the samedate; in count 3 with first degree residential burglary (§ 459) of the dwelling inhabited by George McPherson on or about December24, 1994, and with personal use of a deadly and dangerous weapon,a hunting knife, in the commission ofthe burglary (§ 12022(b)); and in count 4 with assault with a deadly weapon, a hunting knife, (§ 245(a)(1)) upon George McPherson on or about the same date. The information further alleged that each ofthe offenses charged in counts 1, 2, and 3 wasa serious felony (§§ 1192.7 (c)(1) and 1192.7 (c)(23)) and alleged the multiple-murder special circumstance with regard to counts] and 2. (I CT 280-282.) The same day, appellant was arraigned on this information, entered pleas ofnot guilty and denied the special circumstanceallegation. (IJ CT 311.) On June 30, 1997, the trial began withjury selection (III CT 659), and on July 10, 1997, the jurors and one alternate were selected and sworn to try the case (IX CT 2807). On July 14, 1997, the trial court considered and in part granted a motion by the prosecutor for the admission of the testimony of a gang expert. (X CT 2819.) The sameday,the guilt phase of the trial began with the prosecution’s presentation of its case-in-chief. (X CT 2819.) On July 22, 4 1997, the prosecution rested, and the defense began its case-in-chief. (X CT 2856.) On July 23, 1997, the defense rested, and the prosecution presented a brief rebuttal. (X CT 2858.) On July 24, 1997, both parties presented their arguments to the jury, and the jury was instructed and began its deliberations. (X CT 2863.) The jury continued to deliberate over the course of four days, deliberating for the morningsofFriday, July 25 (K CT 2867), Monday, July 28 (X CT 2868) and the full day on Tuesday, July 29. (X CT 2869.) On the morning of July 30, 1997, the jury rendered its verdicts, finding appellant guilty of two counts offirst degree murder,first degree burglary, and assault with a deadly weapon, and finding the multiple murder special circumstanceto be true. (X CT 3052.) On July 31, 1997, the penalty phase began with the prosecution’s presentation of its case-in-chief. (X CT 3055.) On August 6, 1997, the prosecution rested, and the defense began its case-in-chief. (X CT 3062.) On August 7, 1997, both sides rested without any presentation ofrebuttal evidence;both parties presented their arguments to the jury, and the jury was instructed. (X CT 3063.) On Friday, August 8, the jury began its deliberations. (X CT 3065.) On Monday morning, August 11, the jury sent a note to the court that they were deadlocked. (X CT 3081, 3069.) At the trial court’s direction, the jury continued deliberating, and later that same day returned a verdict of death. (X CT 3081-3082.) On October 31, 1997,the trial court denied the appellant’s motion for a newtrial, denied the automatic motion for modification of the sentence (§190.4, subd. (e)), and entered the judgment of death. (X CT 3092, 3101.) STATEMENT OF FACTS A. Guilt Phase In Decemberof 1994, the Pacific Grand Hotel, with its formerly dignified but now decaying facade, had becomea refuge tothe denizens of downtown — crack users and dealers, whores and hoods. The Pacific Grand provided a twisted community ofsorts, run by drugs, greed andviolence. (6 RT 758, 777; 8 RT 899.) Narcotics ofall kinds were readily sold and used atall hours ofthe day and night. (8 RT 899.) The Pacific Grand was a place of chaos andviolence. On December23, 1994, appellant Frank Becerra registered at the Pacific Grand Hotel. (9 RT 1106.) He cameto the Pacific Grand to rock andsell cocaine (9 RT 1105, 1111) and arrived with over six ounces of cocaine (9 RT 1137).’ At that time, appellant had been using crack cocaine steadily for six weeks. (9 RT 1103.) In the late night hours ofDecember27, 1994, Donte Vashaun came upon the bodies of two men — James Harding, known only as “Fontain”to the Pacific Grand community, and Herman Jackson, known as “JJ.” The men were found in room 416, Harding’s hotel room, bound back to back on chairs that were toppled over. (6 RT 898, 902-904.) The men were both bound with electrical cords wrapped in sheeting and a leather belt. (8 RT 898, 904, 907.) Both men’s pants were pulled down belowtheir waists, and one of the men’s pants was around his knees with his buttocks and genitals exposed. (5 RT 552; 7 RT 886; 16 RT 1963.) Both James Harding and Herman Jackson died of strangulation by ligature. (7 RT 841, 844.) In addition, both men suffered blunt force * To rock cocaineis to turn powder cocaine into rock cocaine which is done by cooking the cocaine with baking powder. (8 RT 971.) 6 injuries from a beating ~ Harding’s to the head and Jackson’sto the chest. (7 RT 842, 845.) Harding’s injury wasin a distinctive rectangular shape, which would have allowedthe police or pathologist to determine what particular blunt object caused the injury. (7 RT 845.) Both men also had cocaine in their systems. (7 RT 842, 847-848.) Both men apparently died at the same time, which was approximately 20 to 30 hours before their bodies were found. (7 RT 860.) Vashaun wasa hotel fixture, “a connection” — someone whosold crack cocaine. (5 RT 627.) Vashaun and Harding were closely connected by their commonpursuit of crack cocaine. According to Vashaun, he and Harding smokedcrack cocaine together every day (6 RT 788), and when he cameto the Pacific Grand, Harding’s room was where he wentto get drugs and party. (6 RT 778.) Vashaun described himself as an omnivore of illegal substances, saying that he and Harding would get high with “heroin, cocaine,pills, alcohol, marijuana. We did everything in that room.” (Jbid.) Others in the Pacific Grand community also identified Vashaun as one of Fontain’s connections for buying crack. (5 RT 627.) Although Jackson wasalso a long timeresident of the hotel and an associate of Fontain’s, Vashaun did not know Jackson. (6 RT 768.) There was conflicting testimony as to how Vashaun discovered the victims — whether he forced the door open or found the door already busted open (6 RT 602, 804, 828), whether he saw appellant leave the room just prior to his own entry (5 RT 602; 6 RT 828), and whether he wasalone or with others (5 RT 602; 6 RT 823, 828). But the evidence is undisputed that upon finding the men, Vashaun did notcall the police. (6 RT 753, 828.) Instead, he went to get two other locals, a security guard named “Terry” and another resident named “Red.” (6 RT 802, 829.) Terry and Red entered the room, examined and movedthe bodies, and decided that both men were 7 dead. (6 RT 829.) Sometimelater, Vashaun called the police. (6 RT 754, 830.) When the Los Angeles Police Department (“LAPD”) arrived at the Pacific Grand, homicide detectives found that the doorjam to room 416 had been broken. (8 RT 900.) They identified “JJ” as Herman Jackson and “Fontain” as James Harding. (8 RT 898.) The crime scene was chaotic with items strewn onthe floor and the room generally disheveled. (8 RT 899.) An interior door connected room: 416, in which the bodies were found, to room 415, so both rooms were considered to be the crime scene. (8 RT 898, 908.) Although the police department requested DNAtesting ofblood found at the crime scene, at the time oftrial no report from the DNAtest wasavailable. (8 RT 951.) Room 415 alone contained over 2,000 items. (8 RT 934.) Detective Russell Long, the lead LAPD detective assigned to the case, decided not to document every item at the crime scene, because it would have been impossible to document so manyitems of evidence. (8 RT 934.) Detective Longalso determined that it was necessary to rearrange the crime scene in order to photograph andcatalogue the evidence (8 RT 903, 912.) A numberofitems in the room were not mentionedin any police investigation reports, nor booked as crime scene evidence. (8 RT 938-939.) The overlooked items included a “dildo” located next to the bodies (7 RT 880; 8 RT 938-939); a pair of sunglasses on the floor less than two feet from the bodies (8 RT 939-940); and a pair of pliers on the table in the room (8 RT 945, 946). Most of these items were not dustedfor prints. (8 RT 955.) Someparts ofrooms 415 and 416at the Pacific Grand were dustedforfingerprints.” Eleven latent prints were recovered. (6 RT 726.) Ofthese prints, some were positive matches to James Harding. Two were positive matches to appellant: a print taken from a lamp ona glasstable, identified as People’s Exhibit 6-A, and a print taken from an empty 12- ounce Pepsi can recovered from the trash, identified as People’s Exhibit 6- B. (6 RT 729-730.) Appellant admitted that he had been in Harding’s room, room 415, for an extended period of time, hanging out, partying and eating. (9 RT 1138-1139) The fingerprint technician also testified she could notrule out three other latent prints from room 416 as belonging to appellant. (6 RT 730-732.) After arriving at the Pacific Grand on December23, appellant sold and used cocaine. (9 RT 1109.) Throughout the early morning hours of December24, appellant smoked crack cocaine with a group ofgirls in his room. (9 RT 1110.) Around 7:00 a.m. appellant asked the girls to leave, and sometimelater he resumed selling whatever drugs remainedafter his three-day binge. (9 RT 1111.) Meanwhile, in the early morning hours ofDecember 24, Darlene Miller was with James Harding. (5 RT 581.) Miller was another Pacific Grandresident (5 RT 580), and she also was a heavy user of crack cocaine (5 RT 580, 613, 637). Miller was known tothe residents of the hotel as “Butt Naked” — a nickname acquired from her habit of taking off her clothes in a drug-induced paranoid delusion that she smelled. (5 RT 580.) In late December 1994, Miller frequently experienced paranoid delusions resulting from her crack cocaine use. As she explained, “it had messed my > The extent of the printing was unclear becausethe fingerprint technician who tookthe prints did nottestify (6 RT 725), and the testifying fingerprint technician had never been to the crime scene, so she did not know whatareas were or were not dusted for prints. (6 RT 738.) 9 brain up becauseI had been onit so long. It just makes me leery and paranoid.” (5 RT 636.) Early on December24, Miller and Harding went through the Pacific Grandtrying to find someoneto sell them somecrack cocaine. (5 RT 581.) They unsuccessfully tried numerousdealersin the hotel, including Tony the security guard. (5 RT 582, 584.) While they were waiting to talk to Tony, Darlene and Harding saw black plastic bag, which lookedlike the bag they had seen appellant using to sell his drugs, on the floor under Tony’s table. (5 RT 585.) Harding and Miller picked up the bag and immediately returned to Harding’s room, where they began smoking and dividing up the large quantity of cocaine they had taken. (5 RT 588.) Sometime during the morning ofDecember 24, appellant spoke with Wilson Berry, who helped appellant rock his cocaine at the Pacific Grand. (8 RT 973; 9 RT 1135.) Duringthis conversation, appellant realized that he had lost his remaining six ounces of crack cocaine while on his way from the elevator to Berry’s room. (8 RT 974; 9 RT 1115, 1136-1137.) At this point, appellant was already nine hoursinto a crack cocaine binge. (9 RT 1109-1116.) He began searching everywhere for the missing drugs. (9 RT 1116.) Appellant rememberedthat he briefly had been with Miller and Harding and went to room 421, where he believed Miller lived, to search for his drugs. (9 RT 1129.) Appellant was with two friends, one ofwhom wasidentified as “Lefty.” (9 RT 1129.) George McPherson, Darlene Miller’s “husband,” was in room 421 when he heard a knock on the door. (5 RT 558.) Earlier that morning, McPherson had smoked somecrack that Miller had given him. (5 RT 568.) When McPherson openedthe door, appellant and his two friends entered his room. (5 RT 558.) Immediately upon entering, appellant pushed McPhersonagainst the wall, held a knife against his neck, and demandedto 10 know wherehis missing drugs were. (9 RT 1130.) During this encounter, appellant threatened to kill McPherson. (5 RT 563; 9 RT 1158.) Appellant and the two other men began to ransack the room. (5 RT 561.) The three men told McPhersonto lie on the floor. (5 RT 561.) When McPherson attempted to get up, one ofthe men kicked him in the chest and threatened to kill him. (5 RT 561, 563.) According to McPherson,after the initial assault, appellant had no further physical contact with McPherson, and did notstrike or tie him up, despite Vashaun’s and Miller’s testimony to the contrary. (5 RT 566.) McPherson did not require medical attention as a result of this assault. bid.) After about five minutes, one of the men found a black bag which they believed had held appellant’s crack. (5 RT 569). Shortly after finding the black bag, the three men left McPherson’s room. (lbid.) After leaving McPherson’s room, appellant went to room 302, where, based on information from McPherson,he believed he might find Miller. (11 RT 1133.) Appellant and the other two men began to search that room. A man, who may have been Herman Jackson, was in room 302 during the search. (Jbid.) Neither appellant nor the other two men made any physical contact with him. (11 RT 1134.) Finding no drugs in room 302, the three menleft. (/bid.) After searching rooms 421 and 302, appellant returned to Wilson Berry’s room. (8 RT 973; 9 RT 1136.) Berry agreed that, in exchange for some drugs, he would help appellant recover his crack cocaine. (8 RT 975; 9 RT 1136.) Berry called Harding on the phone. (8 RT 974; 9 RT 1136.) Harding and appellant spoke, and Harding agreedto bring appellant the remaining drugs. (8 RT 976.) Harding returned between one anda half and three ounces of crack, about half of what had been taken. (8 RT 976; 9 RT 1136.) 11 Donna Mecekeywasa visitor at the Pacific Grand on December 23 and December 24. Meekey was known bythe nickname, “Soul Train,” because she had once danced on the popular TV show. (5 RT 658.) On the night of December23, she stayed with Harding. (5S RT 659.) On December 24, Harding showed Meekeya large quantity of drugs that Harding said he had found. (5 RT 661.) Harding told Meekey he wasgoingtosell the drugs and makea lot ofmoney. (5 RT 663.) But, later that evening, Tony, the security guard, and an unidentified man told Harding that he hadto return the cocaine to its owner. (5 RT 666.) Apparently convincedbythis advice, Harding left room 416 with the drugs he had taken. (5 RT 667.) WhenHarding returnedlater, appellant accompanied him. (Jbid.) Appellant, Harding and Meekey then began to hang out in Harding’s room (room 416), playing cards, drinking and smoking crack cocaine. (5 RT 669; 9 RT 1139.) At this point, appellantstill had not found Miller, who according to Harding, hadthe other half of appellant’s drugs. (9 RT 1139.) Appellant told Harding that he would have to repay appellant for the drugs that were missing, and Hardingleft the room and began selling drugs for appellant to make up the moneythat he owed. (5 RT 669; 9 RT 1139.) Meekeyandappellant remained in rooms 415 and 416, smoking crack, drinking and playing cards. At some point Vashaun,as well as other residents and guestsat the hotel, joined them. Everyone in the room was smoking crack cocaine. (9 RT 1141.) Meekeyspenta portion of the night ofDecember 24 with appellant smoking crack. (6 RT 684-685.) According to Meekey, appellantinitially seemed to be happy with the return of his cocaine. (5 RT 669.) But at times appellant became angry with Harding. (6 RT 694.) Appellant’s interactions with Harding that day varied from joking around to speaking angrily to and repeatedly threatening Harding. (6 RT 698, 703.) Meekey 12 never saw appellant physically attempt to intimidate or abuse Harding. (6 RT 698.) In the early morning hours ofDecember 25, appellant and Meekey wentto appellant’s hotel room. (5 RT 670.) Meekey wasexplicit with appellant that she wasnotinterested in being sexual with him, and appellant abided by her wishes. (5 RT 668, 671). While in appellant’s room, appellant showed Meekey a knife he kept for protection. (6 RT 707.) According to Meekey, appellant said that his drugs were from a big organization that was “mafia associated.” (5 RT 672.) However, nothing about appellant’s links to gangs or the mafia was mentioned in Meekey’s statement to the police. (6 RT 720-721.) Appellant denied talking with Meekeyabout where he got his drugs, and denied ever mentioning the Mexican Mafia in his conversations with Meekey. (9 RT 1157.) Eventually both Meekeyand appellant fell asleep. (5 RT 673.) Whenthey awoke on December25, appellant again becameangry at Harding. (5 RT 674.) Meekey and appellant went downstairs so that Mecekeycould say goodby to Harding. (Jbid.) Appellant then walked Mecekeyto the bus stop, and she returned to her mother’s house. (5 RT 675.) Meanwhile, Vashaun helped Darlene Miller broker the return of the drugs that she had taken from appellant. (6 RT 791.) At some point on December24, Miller called Fontain’s room at the Pacific Grand, where Vashaun wasstaying, and asked him what to do with the stolen drugs. (6 RT 810; 9 RT 1142.) Vashaun told her she should return whatever of appellant’s crack she had in her possession. (9 RT 1142, 1156.) Miller arranged to meet appellant on the night of December 24,to return the remaining crack to appellant. (5 RT 599.) Appellant met Miller outside the Pacific Grand. (/bid.) Two other men, one ofwhom had “18th 13 Street” tattooed on his arm, were with him. (5 RT 599.) Appellant was neither threatening nor angry with Miller when she returned the crack, and heinvited her to his room to party. (5 RT 595, 600.) Miller gave varying accounts ofhaving seen appellant after she returned his drugs. First, she testified that she saw appellant the following day, i.e., December25, and that he had threatened thathis gang, 18th Street, would “fuck her up” if she did not return all his dope. (5 RT 598.) She respondedthatshe did not have anymore of his dope andthat if she did, she would be high on it. (Jbid.) Later, Miller testified that after she returned the crack to appellant and left him at the Pacific Grand, she did not see him until the following day, December 25, when she wasin her room with Vashaun. (5 RT 601.) In this version, Miller did not speak to appellant, but only observed him walkingin and out of Fontain’s room. (5 RT 601-602.) In her final version, Miller testified that she saw appellant in the lobby of the Pacific Grand the night the bodies were found. (5 RT 608.) When the police arrived, appellant briskly walked away from the hotel. (5 RT 609.) Oneofthe officers asked Miller to assist them in locating appellant. (Jbid.) Miller rode around with the officers until they found and apprehended appellant. (Jbid.) No police report was written, nor did any officertestify, regarding these facts. Other than Miller’s conflicting accounts, after the morning ofDecember 25, no one saw appellant, Jackson or Harding again at the Pacific Grand until the first hours ofDecember28, 1994. In December 1994, appellant workedasa glassinstaller for his cousin, Sal Kalil, in his business, Sal’s Screen and Glass. (9 RT 1050- 1051.) The tools appellant used as a glass installer included snips, which could be used to cut wires. (9 RT 1060.) Appellant may have worked on installing a fire release escape, which requires that a wire be cut at the end ofthe job. (9 RT 1069-1070.) Each employee wasprovided his own tools 14 in a tool box, and although against companyrules, an employee could take homea pair of snips from the toolbox, and return it the following day. (9 RT 1062, 1067.) Twoexperts testified for the prosecution. Wilson Berry, the Pacific Grandresident and drug dealer (8 RT 969, 985), was allowed to testify as an expert, although the area of his purported expertise was not defined. (8 RT 986.) Berry opined that if a drug dealer has drugs taken from him,he is almost “duty bound”to “do something physical” to whoever took the drugs. (8 RT 975, 986.) Berry further claimed that if someonehas received drugs from a gang and the drugs go missing, the gang will wanteither to see the person whois suspected of taking the dope punishedor to punish the person whoallowed the dope to be stolen. (8 RT 987.) Sergeant Richard Valdemar, a memberofthe Los Angeles County Sheriff's Departmenttestified as a gang expert. (8 RT 1001.) Accordingto Valdemar, if a gang memberwhowasselling drugslost or had stolen from him a kilo or a half a kilo of drugs, the seller would haveto retaliate to save face. Saving face primarily would mean killing someone. (8 RT 1009, 1010.) Moreover, the mannerin which the person was killed would be significant. The seller would want to kill the person in a heinous fashion in orderto terrorize other street gang membersand to appease the other members of his own gang. (8 RT 1011, 1021.) In Valdemar’s opinion, strangulation and exposing the victims’ buttocks would be consistent with the type of gruesomekilling that would likely satisfy the members of the gang. (8 RT 1022.) Valdemar knew appellant to be a memberofthe 18th Street gang based on appellant’s own statements andhis tattoos. (8 RT 1015.) According to Valdemar, the “SUR”tattoo on appellant’s right leg showed his affiliation and alliance with the Mexican Mafia, which he described as a 15 very violent gang. (8 RT 1017-1019.) For an affiliate to lose drugsthat belonged to the Mexican Mafia wouldbe a sign of disrespect and a potential death sentence. (8 RT 1018.) In Valdemar’s opinion,retribution by a gang,especially the Mexican Mafia, often has a sexualized aspect, as exemplified in the movie American Me. (8 RT 1019.) Appellant testified on his own behalf. He admitted being a member of the 18th Street gang (9 RT 1099), stealing between a quarter anda half of a kilo of cocaine from his drug “connection” (9 RT 1102), selling those drugs in the Pacific Grand Hotel (9 RT 1111), losing between five and six ouncesofthose drugs (9 RT 1128), threatening and assaulting George McPherson (9 RT 1130), and threatening Harding and Miller when he realized they had taken his drugs (9 RT 1173). However, appellant unequivocally denied having anything to do with the murders ofHarding and Jackson. (9 RT 1175.) B. Penalty Phase The prosecution’s case in aggravation consisted of appellant’s two prior convictions, 30 incidents of alleged unadjudicated offenses and victim impact evidence. The prosecution introduced the records oftwo prior felony convictions, one for violation ofVehicle Code section 10851 (unlawful driving or taking of a vehicle) and the other for violation of Health and Safety Code section 11350 (possession of controlled substance). (14 RT 1636.) These convictions resulted in a state prison sentence. (14 RT 1638.) Noneofthe unadjudicated incidents introduced by the prosecution resulted in criminal charges, but in each appellant allegedly committed a criminal offense involving the use or threat of force or violence. (§ 190.3, subd. (b).) The following offenses were introduced: ° On April 22, 1990, appellant with a group offifteen others 16 assaulted Scott Knapp. (12 RT 1500-1501.) Knapp suffered a welt on his neck and a small laceration on his head. (12 RT 1504.) On August 1, 1992, appellant chased fellow Los Angeles County Jail Inmate Darryl Starks down a hall and struck him with the handle of a broom. (14 RT 1677.) During a scuffle that followed, appellant bit Starks on his back. (14 RT 1678.) On October 11, 1992, during a detention by two Los Angeles Police Departmentofficers, appellant was involved in a physical altercation with the officers. (14 RT 1653.) On January 19, 1993, Los Angeles County Sheriff's deputies searched appellant’s cell and found five pieces of unsharpened metal, which could have been turned into shanks. (12 RT 1511, 1512.) On April 14, 1993, appellant had a fist fight with inmate Mora at the Mule Creek State Prison. (13 RT 1574.) On June 26, 1993, appellant wasin a large fight involving fifty inmates at Mule Creek State Prison. (13 RT 1586.) In June, 1993, during his disciplinary hearing on the rule violation for his participation in the June 26, 1993, prison fight at Mule Creek State Prison, appellant told the hearing officer that he was not going to comply with the rules and regulations of the departmentandtheinstitution. (13 RT 1606.) On July 7, 1993, appellant had a fight with inmate Bermudez, his cell mate at Mule Creek State Prison. (13 RT 1617.) On July 25, 1993, appellant threw urine underneath the door ofhis prison cell at Mule Creek State Prison, dirtying the 17 pants, shoes and socks of Correctional Officer Merritt. (13 RT 1622.) Sometimelater, appellant shouted to Merritt that he had AIDSandhoped that Merritt would die and giveit to his wife and kids. (13 RT 1624.) On August 19, 1993, appellant had a fight with inmate Romero at Mule Creek State Prison. (13 RT 1630.) On August 20, 1993, appellant threw urine underneath the doorofhis prison cell at Mule Creek Sate Prison, dirtying the shoes and jumpsuit of Correctional Officer Ximenez. (13 RT 1632.) OnJuly 22, 1994, appellant had a fight with inmate Vargasat Pelican Bay State Prison. (15 RT 1772.) On August 27, 1994, appellant had a fight with inmate Esperanza at Pelican Bay State Prison. (15 RT 1781.) On January 10, 1995, Los Angeles County Sheriff's deputies searched appellant’s cell and found a metal jailhouse shank. (14 RT 1660, 1661.) On March2, 1995, appellant threw a mixture ofurine and bleach at a deputy sheriff in the Los Angeles County Jail. (12 RT 1520.) On April 20, 1995, Los Angeles County Sheriff's deputies searched appellant’s cell and found excess linen, excess clothing, 20 capsules of aspirin and a container of bleach. (14 RT 1666.) | On July 23, 1995, appellant threatened to assault Los Angeles County Deputy Sheriff Dombrowski and threatened to put the deputy in a body bag. (14 RT 1672.) Although appellant did not, in fact, physically assault Deputy Dombrowski during 18 any of their numerous subsequent contacts (14 RT 1673), Dombrowski took the threats seriously because of appellant’s history and background. (14 RT 1674.) On September 28, 1995, in open court, appellant yelled at the Judge “ifyou fuck with meI will fuck with you.” Appellant then threw a bundle of pencils that were sharpened at one end at his public defender. (14 RT 1684.) On November25, 1995, appellant told Los Angeles County Deputy Sheriff Mendoza that he was going to assault his public defenderat his next court date, and that he would “take out who he had to.” (14 RT 1689, 1693.) On January 26, 1996, appellant received three pieces of metal from another inmate which he then attempted to break into smaller pieces. (12 RT 1523.) Appellant then returned the pieces ofmetal to the other inmate. (12 RT 1525.) On February 16, 1996, Los Angeles County Sheriff's deputies searched appellant while en route to the shower and found a razor blade. (12 RT 1533.) On October 28, 1996, Los Angeles County Sheriff's deputies searched appellant’s cell and found a “jail club” made of paper and a razor blade. (14 RT 1642, 1645.) On December5, 1996, appellant pushed the door of an isolation room at the Los Angeles County Jail against Los Angeles County Sheriff Sergeant Steele as he attempted to lock the door, catching Steele on the right side of his cheek. (15 RT 1756.) On January 2, 1997, Los Angeles County Sheriff deputies searched appellant’s cell and found a jail made handcuffkey. 19 (14 RT 1729.) ° On February 5, 1997, as Los Angeles County Sheriffs Deputy Crane walked by appellant’s jail cell, he was stabbed in his right side. (14 RT 1713.) Deputy Crane wasnot hurt by the stabbing. (14 RT 1722.) ° In February, 1997, appellant reached through the barsofhis cell at the Los Angeles County Jail and cut the arm of fellow inmate Derek Brownwith a razor blade. (15 RT 1738-1739.) ° In February, 1997, appellant repeatedly threw human excrementinto the cell of fellow Los Angeles County Jail inmate Derek Brown. (15 RT 1741.) Appellant also made threats against inmate Brown and his family. (15 RT 1744.) . On May 12, 1997, appellant, upset over a property dispute, broke the plexiglass in frontofhis cell at the Los Angeles County Jail. (12 RT 1538.) ° On May12, 1997, appellant broke off his handcuffs andhis leg cuffs by rubbing them againsta steel table while alone in a jail cell at the Los Angeles County Jail. (12 RT 1542.) After appellant was re-handcuffed, he attempted to punch a deputy sheriff through the bars of his cell. (12 RT 1545, 1549.) ° On May13, 1997, appellant beat on thelight fixturein his . Los Angeles County Jail cell until he broke the light bulb. (12 RT 1561.) Later, a deputy sheriff observed thatthetoilet in appellant’s cell has been ripped from the wall. (2 RT 1562.) Finally, the prosecution introduced the victim impact testimony of three ofHarding’s relatives — his mother, his brother and his aunt. Although the witnesses had not seen Harding in a numberofyears,they still 20 felt a great sense of loss at Harding’s death. (15 RT 1789, 1796, 1799, 1803, 1807, 1809.) In mitigation the defense presented evidence of appellant’s abusive early childhood, primarily from when he wasthree to five years old. Three neighborstestified to the violence they witnessed being perpetrated against appellant, his brother, and his mother by appellant’s father. The Gamboas, mother and son, would hear screams from appellant’s household. (15 RT 1815, 1829.) They also saw appellant’s father beat him andhis brother, both with his hands and with objects. (15 RT 1828, 1816.) The Gamboas further testified that appellant’s father made appellant and his brother dig a deep pit and then would put the boys into the pit to punish them. (15 RT 1816, 1828.) Another neighbor, Rosanna Yniguez,testified to hearing screams from the house, witnessing neglect and cruel treatment from the father, and seeing the boys being put into the pit in the backyard and then hearing them scream and cry to be let out. (15 RT 1833-1835). Appellant’s motheralso testified to the violence perpetrated by appellant’s father against appellant and his brother as well as herself. (16 RT 1852-1858.) The defense also introduced appellant’s file from the Los Angeles Department of Children and Family Services (DCFS) through the custodian of records, Vicky Turner-Ezell. (16 RT 1843). Turner-Ezell explained that DCFSworks with families where there is child abuse. (16 RT 1842.) There wasno testimonyin specific regarding appellant’s records; however, Turner-Ezell did testify that generally the DCFSfile would contain placementrecords, notes, and interviews conducted bythe assigned caseworkers. (16 RT 1844-1845.) The defense also introduced appellant’s records from a psychiatric institution, Gateways Hospital, where appellant was committed from February 5, 1987 through July 6, 1987. (16 RT 1847.) There wasno testimonyreceived by the jury regarding the contents of these records. I THE TRIAL COURT ARBITRARILY REVOKED APPELLANT’S SELF-REPRESENTATION FOR IMPERMISSIBLE REASONS AND WITHOUT WARNINGIN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS The Sixth Amendmentguarantees a criminal defendantthe right to represent himself. (Faretta v. California (1975) 422 U.S. 806, 834.) Frustrated by what it perceived to be appellant’s delay and less-than- adequate lawyering in a capital case,the trial court revoked appellant’s self-representation. Thetrial court’s frustration, however, cannot trump appellant’s constitutional right to speak for himself. Appellant did not deliberately engage in obstructionist misconduct which threatened to subvert the core conceptofthe trial — the only permissible grounds for | withdrawing a defendant’s self-representation. Nevertheless,the trial court abruptly terminated appellant’s pro se status without any warning whatsoever. As shown below,the trial court erroneously revoked appellant’s self-representation in violation of the Sixth and Fourteenth Amendments to the federal Constitution. Reversal of the judgmentis required. A. Proceedings Below On May17, 1995, approximately four and a half monthsafter arraignment, appellant sought to exercise his Sixth Amendment right to self-representation. (1 CT Supp III 26.) Thetrial court initially was unwilling to even considera grant ofpro se status because this was a special circumstances case. (Jbid.) After being reminded by the public defender of the appellant’s constitutional right to self-representation, the court relented and agreed to consider his request. (1 CT Supp III 29-30). On May 19, 1995, after appellant complied with the trial court’s 22 requests that he complete a Faretta waiver form and submit an ex-parte letter describing how he would proceed werepro se status granted, the court granted appellant’s motion to represent himself. (1 CT Supp III 38). The court also granted appellant’s motion for appointment of John Jensen as an investigator. (1 CT SuppIII 39-40.) In addition, the court set a hearing on June 2, 1995, for the discovery motion that appellant had just filed. (1 CT SuppIII 42; see I CT 174-195 [appellant’s discovery motion].) To accommodatethat hearing, appellant waivedhis right to a speedy preliminary hearing. (1 CT SuppIII 42.) At the June 2 hearing, the prosecutor, Assistant District Attorney Allan Walsh (“ADA Walsh”) acknowledgedthat the prosecution had not yet produced 10 items the defense had requested in discovery. (1 CT Supp III 48-51, 56-57, 62, 64.) At appellant’s request, the matter was set over until July 10, 1995, for discovery compliance and setting. (1 CT Supp III 65.) At the suggestion ofADA Walsh,the court agreed that this date would begin a new 30- day period for setting of the preliminary hearing. (1 CT SuppIII 65.) At the July 10 hearing, appellant filed a motion for discovery compliance, which identified all the discovery that wasstill outstanding. (I CT 235-256.) At the hearing, appellant explained that in addition to the items identified at the June 2 hearing, numerousother items were missing from the discovery initially provided. (1 CT Supp I70.) The court ordered that appellant meet with investigator Jensen about the missing discovery and that Jensen then communicate with ADA Walsh about“all the matters” that appellant requested. (1 CT Supp III 71.) The court stated that if the district attorney was not willing to turn over the requested items, the court would set another discovery hearing. (/bid.) The court urged the parties to “work together to try and get all these items to Mr. Becerra so that 23 on August 30th I can ask Mr. Becerra if he’s ready for prelim, and he will indicate in the affirmative.” (1 CT Supp III 72.) The court continued the informal discovery compliance to August 30, 1995. (1 CT Supp III 75.) At the August 30 hearing, ADA Walsh explained that he had provided the defense with some ofthe missing documents (1 CT SuppIII 79), but had not yet been able to fully comply with the prior discovery order, because his office was waiting for the production of some items. (1 CT SuppIII 79-80.) Appellant identified additional items of discovery that werestill outstanding. (1 CT SuppIII 82-83.) Thetrial court agreedthat appellant neededto havethis additional discovery before proceeding to the preliminary hearing. (1 CT Supp III 83.) The court set September28, 1995, for another discovery hearing and for setting a date for the preliminary hearing. (1 CT SuppII 83-84.) Appellant had issued numerous subpoena duces tecum to be returned to court for the August 30 hearing. The court refused appellant’s request to issue body attachmentfor those parties who had not complied with these subpoenas, and instead asked appellant to serve the subpoenas again for September28 hearing. (1 CT SuppIII 82.) At the August 30 hearing, appellant asked to addressthe trial court ex parte on a motion for advisory counselthat hefiled that same day. (1 CT Supp III 84; see Sealed CT 284-298.) The court stated that it would hear the motion on September 28. (1 CT Supp III 84). Appellant requested advisory counsel because he wasprovided only two hours a day for both telephone andlaw library access and, therefore, was unable to adequately prepare his defense. (Sealed CT 284, 287-288.) Appellant explicitly sought the appointment of advisory counsel to allow him the necessary access to legal information to present his defense both at the guilt and penalty phases of the trial. (Sealed CT 289-293.) 24 On September28, 1995,the trial court “relieved” appellant. (1 CT Supp III 87.) The hearing began as follows: THE COURT:All right. Mr. Becerra, the court is going to make the following finding: I gave you pro perprivileges a little over four months ago and you continuedthis case onat least six occasions. The court finds that everything you’ve doneis dilatory; that this case is never going to get off the ground;that the prelim will never occur; and that all you’re doing is stalling. Eventually it’s going to have to happen. I don’t want to hear from you anymore. THE DEFENDANT:Your Honor? THE COURT: I’mtelling you to be quiet. I’m releaving [sic] you I’m reappointing the public defender’soffice. .. (1 CT Supp III 87.) The court permitted appellant to lodge his objection to the ruling on the record. (1 CT Supp III 87-89.) Thetrial court cited no legal authority in support ofits ruling. After the trial court revoked appellant’s pro se status, appellant expressed his upset with the court’s ruling. Deputy District Attorney Lentz, described what occurred: “at the conclusion of the hearing, as Mr. Becerra stood near the door, adjacent to the bailiff, he took a packet of what appeared to meto be four orfive sharpened pencils and, in a fit of rage, threw them some 35 feet across the courtroom, nearly missing [deputy public defender] Mr. Fisher.” (1 CT Supp III 89-90.) On November9, 1995, appellant renewed his motion to represent himself. (1 CT Supp III 93-97.) The court denied appellant’s motion for reinstatement of self-representation status. In doing so, the court explained its revocation of appellant’s pro se status, finding that because “the case wasput over an incredible amountoftimes[,]” appellant was “dilatory.” (1 CT Supp III 97.) Relying on People v. Lopez, (1977) 71 Cal.App.3d 568, and its progeny ( 1 CT Supp III 97-98), the trial court reasonedthatits 25 decision to revoke appellant’s pro se status was proper because “after grantingproperstatus, that status can be revoked becausethe defendantis ‘entitled to and will receive no special indulgence by the court, and the defendant must follow all the technical rules of substantive law, criminal procedure and evidencein the making ofmotions and objections, the presentation of evidence, voir dire and argument.” (1 CT Supp III 97-98.) Thetrial court went on to quote Faretta v. California, supra, 422 USS.at p. 834, fn. 46, asserting that “‘the trial judge may terminate self- | representation by a defendant whodeliberately engages in serious and obstructionist misconduct.’” (1 CT Supp II 99.) The trial court reiterated — its prior finding that its revocation of appellant’s pro se status was based on the finding that“this case hasn’t even gotten to prelim, because it has been put over and over and over and over by you andthis court, if it was reviewing your quality of representation by you, would findthat the quality of representation was not adequate. Forthat reason, the court’s ruling will stand.” (1 CT SuppIII 99.) Thetrial court also denied appellant’s request for appointment of advisory counsel. (1 CT SuppIII 98.) B. _A Defendant’s Self-Representation May Be Terminated Only For Deliberate, Serious And Obstructionist Misconduct And Only After He Has Been Warned That His Misconduct May Result In Revocation Of His Pro Se Status Thirty years ago the Supreme Court established that “[t]he Sixth Amendmentgrants to the accused personally the right to make his own defense.” (Faretta v. California, supra, 422 U.S. 806, 819.) The Sixth Amendment“right to dispense with a lawyer’s help”is not a legal formalism].” (Adams v. U.S ex. Rel. McCann (1942) 317 U.S. 269, 279.) On the contrary, the right to self-representation is the very personalrightto control one’s own fate. “The right to appear pro se exists to affirm the 26 dignity and autonomyofthe accused...” (McKaskle v. Wiggins (1984) 465 U.S. 168, 178.) “The primary motivation for the Faretta rule is respect for the accused’s freedom of choice personally to conduct his own defense.” (People v. Joseph (1983) 34 Cal.3d 936, 946.) Consistent with the reason for the Faretta right, the permissible bases for revocation or termination ofthe fundamental right to self- representation are narrowly drawn. From theoutset, the United States Supreme Court recognized that this “unconditional right”to self representation could be subject to termination in only a limited set of circumstances. (Faretta v. California, supra, 422 U.S. at p. 820.) In Faretta, the Court stated that “a trial judge may terminate self- representation by a defendant who deliberately engages in serious and obstructionist misconduct.” (/d. at p. 834, fn. 46.) Faretta makesclear that only extreme misconduct can justify revocation of a defendant’s right to represent himself. In setting forth the deliberate, serious and obstructionist misconduct standard, the High Court cited Illinois v. Allen (1970) 397 U.S. 337, in which a pro se defendant was properly removed from the courtroom, and United States v. Dougherty, (D.C. Cir. 1972) 473 F.2d 1113, in which defendants were improperly denied their statutory right to represent themselves. (Faretta v. California, supra, 422 U.S. at p. 834, fn. 46.) These cases give definition to Faretta’s revocation standard. In Allen, the defendant deliberately engaged in serious and obstructionist misconduct. He displayed a pattern of disrespectful, abusive and disruptive behavior which included threatening to kill the trial judge and declaring his intent to prevent the trial from occurring, even after repeated warnings that such conduct could result in termination of his pro se status and removal from the courtroom. (//linois v. Allen, supra, 397 U.S. 27 | at pp. 339-340.) The Supreme Court resolved that a Sixth Amendmentright may only be terminated becauseofthe defendant’s misconductif, after a warning by the court, the defendant continues to engage in conductthatis “so disorderly, disruptive or disrespectful of this court that his trial cannot be carried in the courtroom.” (/bid.) In Dougherty, a highly-publicized trial relating to Vietnam War protests, the Court ofAppealruled that only misconduct which subverts the core concept ofa trial will justify termination andthat the risk ofpossible disruption wasinsufficientto sustain the denial of a timely request for self-representation. (United States v. Dougherty, supra, 473 F.2d at pp. 1125-1126.) As Faretta’s footnote 46 teaches,the right to self-representation mayonly be revokedifthe defendant engages in conduct whichis intendedto, and in fact does, threaten to underminethe ability of the court to conductthetrial. This Court has emphasizedthestrictness ofthe Faretta standard that must govern a trial court’s exercise in the termination of prose status. In People v. Carson (2005) 35 Cal.4th 1, the Court asserted that “[t]ermination ofthe right of self-representation is a severe sanction and mustnot be imposedlightly.” (/d. at p. 7.) The Court acknowledgedthat Faretta’s footnote 46 “intended to embrace Dougherty’s standard for termination of the right to self-representation: does the defendant’s misconductseriously threaten the core integrity of the trial.” (/bid.) As Carson explains, the totality of the circumstances must inform the trial court’s exercise ofits discretion. (/d. at p. 12.) However, in evaluating the impact of misconduct “Tulltimately the relevance inheres in the effect of the misconduct on the trial proceedings, not the defendant’s purpose.” (/d. at p. 11). Moreover, consistent with the respect for a defendant’s dignity and autonomy that underlies the Faretta right, a trial court, wheneverpossible, must warn a pro se defendant that his misconduct mayresult in the 28 revocation of his right of self-representation. (J/linois v. Allen, supra, 397 USS.at p. 343 [the trial court must first provide some warning before a defendant’s conduct can be taken by the court as an implied waiverofa Sixth Amendmentright]; United States v. Dougherty, supra, 473 F.3d at p. 1125 [a pro se defendant should be forewarned of conduct that may operate as a waiverofhis pro se right].) This Court similarly requires that a pro se defendant must be warnedbeforehis self-representation is terminated due to his misbehavior. (People v. Carson, supra, 35 Cal.4th at p. 10 [atrial court must consider “whether the defendant has been warnedthat particular misconductwill result in termination of in propria persona”status].) Finally, this Court reviews the revocation of a Faretta right for an abuse ofdiscretion. A trial court’s assessmentofthe defendant's motives and sincerity as well as the nature and context of his misconductandits impact on the integrity of the trial are accorded deference. (People v. Carson, supra, 35 Cal.4th at p. 12.) However, no such deference is required whenthetrial court’s denial of the rightto self-representation is based on an erroneous understanding of the applicable law. (People v. Dent (2003) 30 Cal.4th 213, 222.) C. Appellant’s Conduct Did Not Even Begin To Approach The Type Of Misconduct That Would Justify Terminating His Self-Representation Thetrial court terminated appellant’s self-representation based onits findings that appellant was delaying the proceedings throughhisself- representation, was not conducting himself in the manner in which an attorney would conduct himself, and was not adequately representing himself. (1 CT Supp III 97- 99.) The revocation was erroneous. As a preliminary matter, the finding that appellant engaged in dilatory conductis unsupported by the record. But even if deliberate delay were proven,it 29 would not provide a constitutionally permissible basis for terminating appellant’s self-representation. Similarly, the alleged — but unproven — inadequacy ofappellant’s self-representation was not grounds for revoking his pro se status. Althoughthetrial court noted the governing misconduct standard from Faretta (1 CT SuppIII 98-99), it never found that appellant’s conduct met that standard.° Nor could it. Appellant’s conduct did not compromisethe ability of the trial court to conductthe trial, and did not justify the terminationofhis pro se status. (People v. Carson, supra, 35 Cal.4th at p.10.) In addition,thetrial court did not, as required, warn appellant that his conduct risked termination ofhis self-representation. Moreover, appellant’s conduct in response to the improper revocation, which wasnotrelied upon bythetrial court in explaining his decision, cannot be used on appealto justify the termination of appellant’s pro se status. Viewedin the totality of the circumstances,the trial court’s revocation deprived appellant of his right to represent himself in violation ofthe Sixth and Fourteenth Amendments. 1. The Trial Court Erroneously Terminated Appellant’s Self-Representation on the Unsubstantiated Finding That Appellant Had Been Dilatory in Preparing for the Preliminary Hearing In terminating appellant’s Faretta right, the trial court found that appellant was dilatory in representing himself. (1 CT Supp It 87.) The trial court stated that appellant had continued the case “on at least six ® Indeed,it appears that the trial court may have been confused about the governing standard for revocation ofpro se status. Although the trial court correctly cited footnote 46 ofthe Faretta decision limiting termination ofpro se status to a defendant who deliberately engages in serious and obstructionist misconduct,it incorrectly attributed this language to the dissent. (1 CT SuppIII 98-99.) 30 occasions.” (1 CT Supp.III 87.)’ The record proves otherwise. There were four hearings — May 19, June 2, July 10, and August30, 1995 — between the grant and revocation of appellant’s self-representation. (1 CT SuppIII 36, 45, 69, 77.) After being granted prose status, appellant did not once seek a continuance pursuant to Penal Code section 1050, or even informally request that a date be postponed. At each hearing, the trial court — not appellant — suggested a new hearing date after appellant showedthat the district attorney had failed to comply with his obligation to produce discovery. (1 CT SuppIII 39 [court states it will set a date for appellant and ADAWalshto discuss discovery]; 1 CT SuppIII 65 [clerk suggests the matter be put over for discovery compliance and appellant requests a setting date]; 1 CT Supp III 72 [court puts the matter over as zero of ten andtells the parties to work together to get necessary discovery to appellant]; 1 CT Supp III 84 [court sets the next date as zero of thirty court days for setting ofpreliminary hearing and wants to makesure appellant hasall discovery before proceeding to preliminary hearing].)® ’ Thetrial court madenoclear finding that appellant’s conduct was intended to delay the proceedings. Inits initial statement revoking pro se status thetrial court used the word “dilatory” to describe appellant’s conduct, and found that “‘all you are doingis stalling.” (1 CT Supp.II 87.) In the court’s longer, and more reasoned statement in responseto appellant’s motion for reconsideration, the court did not reiterate the term “dilatory,” but found that appellant had put the case “over and over and over” andthat his quality of representation was not adequate. (1 CT Supp. III 99). This record does not support that the trial court found that appellant intended to delay the proceedings by his conduct. ’ Throughoutthe pre-preliminary hearing proceedings,the court used the terms “zero often” and “zero ofthirty.” Where, as here, the defendantat a pre-preliminary hearing gives a specific rather than general time waiver, the statutory period for hearing the preliminary hearing is (continued...) 31 ADA Walsh repeatedly admitted he had not fully complied with discovery orders. (1 CT SuppIII 48-51, 56-57, 62, 64 [June 2 hearing]; 1 CT Supp III 79-80 [August 30 hearing].) He never suggested that appellant’s requests were unfounded, unnecessary or made for the purpose of delay, and he never opposed or complainedthat the matter had not yet beenset for preliminary hearing.’ Furthermore,thetrial court recognized the legitimacy of appellant’s discovery requests. At the July 10 hearing, he ordered the district attorney to comply with the discovery requests. (1 CT Supp II 71, 72, 75.) And as late as the August 30 hearing, the trial court explicitly stated that appellant needed the outstanding discovery before the preliminary hearing could be held. (1 CT SuppIII 83.) In this way, appellant conscientiously litigated §(...continued) waived only until the next court date. The designation of “zero of ten”or “zero of thirty” is essentially an agreementthat if the defendant does not waivetime at the next hearing, the preliminary hearing will occur within either ten or thirty days. By selecting the period of “zero ofthirty” at the August 30, 1995 date, rather than “zero often” as he had at the prior court date, the trial court unilaterally chose to allow for the possibility of further delay before proceeding to preliminary hearing. ° The discovery problemsalso plagued Deputy Public Defender Fisher, who represented appellant before he asserted his Faretta rights. There were 132 days between the date that Deputy Public Defender Fisher first appeared as counselin appellant’s case and the date that appellant first announcedhis desire to proceed pro se. (1 CT SuppIII 1, 38.) There were also 132 days between the date that appellant was appointed to represent himself and the date that the court relieved him. (1 CT SuppIII 38, 87.) The matter was neverset for preliminary hearing during Mr. Fisher’s preliminary representation because ofproblems with obtaining discovery from the district attorney (1 CT SuppIII 6, 14, 22), the very same problems that appellant encountered proceedingpro se and that promptedthetrial court’s revocation decision. These facts also negate any suggestion that appellant deliberately engaged in unnecessary delay. 32 compliance with thetrial court’s discovery orders, whichthetrial court explicitly and the prosecutor tacitly had acknowledged were appropriate. Thetrial court’s ultimate findings on September 28, 1995, that appellant was dilatory and that the “prelim will never occur” thus are surprising and unsupported. Appellant was diligent, not dilatory. Appellant’s conduct throughouthis period of self-representation establishes his strong interest in attacking the case against him. His persistent attempts to obtain discovery show hisintent to investigate the case and provethat someoneelse was responsible for the crime, not an intent to postpone or obstructthe trial. Appellant filed several motions with the court, including two discovery motionsthat detailed outstanding discovery items (I CT 174, 235), issued numerous subpoenas duces tecum for the production of potentially exculpatory information in the possession of third parties (1 CT Supp III 82), met regularly with his investigator (1 CT SuppIII 73), immediately identified a new investigator upon learning of the impending retirementofhis original investigator (1 CT Supp III 78), and wasfully | prepared for every court appearance. Appellant also filed a motion for appointment of advisory counsel in which he emphasized he was having difficulty preparing both his guilt and penalty defense because ofthe limitation of the jail resources. (I CT 286-287.) Nothing in appellant’s conductreflects a desire to do anything other than defend himself against the charges. He engaged in aggressivelitigation, not stalling tactics. In sum,the trial court’s finding that appellant was using his pro se status to stall and delay the proceedings is wholly unsupported by the record and cannotjustify the termination ofhis self-representation. 33 2. Even Assuming That Appellant’s Attempts to Enforce Discovery Compliance Did Delay the Case, His Actions Do Not Constitute Obstructionist Misconduct That Would Justify Terminating His Self-Representation Even assuming, arguendo,that the record supported the trial court’s finding that appellant did delay the proceedings, this conduct would not constitute “serious and obstructionist misconduct” that would threaten the core concept ofthe trial and thus would justify revocation of self- representation. (Faretta v. California, supra, 422 U.S.at p. 834,fn. 46, citing United States v. Dougherty, supra, 473 F.2d at p. 1125.) Simplyput, delay byitself is insufficient grounds for terminating a defendant’s pro se status.!° Appellant is not aware of a single case that approves revoking self- representation for the ordinary delay necessary for pretrial preparation. Such a rule would be inconsistent with Faretta’s clear direction that self- representation may be denied only for serious misconductthat interferes with the court’s ability to conductthe trial. This pointis at the heart of United States v. Dougherty, supra, 473 F.2d 1113, which, as previously noted, the High Court cites approvingly in Faretta, supra, 422 U.S.at p. 817, and on which this Court relies approvingly in People v. Carson, supra, 35 Cal.4th at pp. 7-10. In Dougherty, the federal court of appeals recognized that “a measure of unorthodoxy, confusion, and delay is likely, perhaps inevitable, in pro se cases.” (/d. at p. 1124.) The court explicitly rejected the government’s argumentthat a risk of “possible disruption” justified the denial of the © Delay in asserting the right to self-representation may, however, provide a basis to deny the request. (People v. Bloom (1989) 48 Cal.3d 1194, 1219-1220.) However,that is not an issue here, where appellant timely asserted and thetrial court granted the right to proceed prose. 34 defendants’ request to represent themselves. (/d. at pp. 1124-1125.) In discussing the conduct that could constitute a waiver of the statutory pro se right at issue in Dougherty, the court identified “deliberate dilatory or obstructive behavior”that results in “subversion of the core concept of a trial.” (/d. at p. 1125.) Thus, as Dougherty recognizes,to justify terminating self-representation, the defendant’s deliberate delay must not simply postpone the proceedings but must, in some way, obstruct or subvert them. The Ninth Circuit Court ofAppeals reached a similar conclusion in United States v. Flewitt, (9th Cir. 1989) 874 F.2d 669. There,the district court terminated the defendants’self-representation because they had not progressed in preparing their defense, had not availed themselves of discovery procedures, and had not properly utilized advisory counsel. (/d. at p. 675.) Similar to the trial court’s finding in this case, the judge in Flewitt told the defendants, “for reasons knownbest to yourselves, you are not ready fortrial and you will not get ready for trial nor will you do the necessary preparation in orderto be ready fortrial. ... I am goingto find that you are incapable of effectively representing yourselves.” (/bid.) Although the defendants in FJewitt, who hadrejected the prosecution compromise offer for reviewing discovery, were far less diligent than appellant here, the majority squarely rejected the position, taken by the dissenting judge, that the revocation was proper because the defendants usedtheir self-representation as a tactic to delay the trial. (/d. at p. 674.) The court reasoned that “[p]retrial activity is relevant only ifit affords a strong indication that the defendants will disrupt the proceedings in the courtroom.” (United States v. Flewitt, supra, 874 F.2d at p. 674.) Addressing Faretta’s footnote 46, the court explained, “[w]e do not construe the footnote to mean that a defendant’s Sixth Amendmentright to 35 self-representation — so vigorously upheld by the Supreme Court in Faretta — may be extinguished, as it was in this case, due to the defendant's lack of preparationpriorto trial.” (/bid.) The court found that anyfailure to prepare diligently fortrial — necessarily including any delay caused by such failure — did not establish that the defendants would obstruct or disrupt the trial. (/bid.) Therefore, the court concluded that there were no grounds for retracting the defendants’ pro se status: “The Supreme Court never suggested that the defendant’s right to self-representation could be terminated for failure to prepare properly fortrial.” (/bid.) The Flewitt rationale applies with even moreforce to this case where the delay cannot in any waybeattributed to appellant who, in contrast to the defendants in Flewitt, used all available discovery procedures and unsuccessfully sought the assistance of advisory counsel to prepare fortrial." This Court never has uphelda denial or revocation ofthe right of self-representation on the basis of ordinary delay alone. Rather,it fully recognizes that the right to self-representation may impede, but takes precedenceover, the interest in judicial efficiency. (People v. Blair (2005) 36 Cal.4th 686, 740.) Thus, the Court’s decisions withholding or withdrawingprose status have involved conduct that obstructed or disrupted the proceedings rather than delayed them. (See, e.g. People v. Clark (1992) 3 Cal.4th at pp. 115-116 [revocation ofpro se status upheld where defendant’s threats to stand mute, viewedin the totality of the circumstances, were a deliberate course ofmisconduct designed to disrupt | The Ninth Circuit more recently has reaffirmed this basic point. In U.S. v. Lopez-Osuna (9th Cir. 2000) 232 F.3d 657, 665, the court held that granting pro se status to defendant who wentto trial under the misguided belief that in doing so he could address his potential punishment was not impropersince he did not exhibit obstructionist courtroom behavior that substantially disrupted the proceedings. 36 the trial proceedings]; People v. Welch, (1999) 20 Cal.4th 701,735 [denial ofpro se status upheld after defendant belligerently denied awarenessof a calendar date that wasset in his presence, turned his back on the trial court when addressingit, interrupted the trial court several times to argue what the court had declared to be a nonmeritorious point, accused the court of misleading him, refused to allow the court to speak and repeatedly refused to follow the court’s admonishments to be quiet].) The sameis true of the decisions of the lower California appellate courts. (See, e.g. People v. Rudd (1998) 63 Cal.App.4th 620, 632-633 [revocation ofpro se status upheld after appellant engages in duplicitious and dishonest conduct by appearingat the first day oftrial without anytrial materials and announcing he wasnot ready to proceed, despite an explicit promise to the court prior to the granting of self-representation that he would be ready]; People v. Davis (1987) 189 Cal.App.3d 1177, 1200 [revocation ofpro se status upheld after defendant continuously disparaged opposing counselandthe court in front of the jury, made accusations in front of the jury that evidence was being manufactured by the government and that the court was prejudiced against the defendant, and continued in this conduct even after being continually warnedto desist]; see also People v. Superior Court (George) (1994) 24 Cal.App.4th 350, 354-355 [reinstating pro se status of appellant who had been deniedself- representation based on finding that he sought self-representation in order to gain privileges to aid in his escape, since: “[t]here is simply no authority to deny a defendantthe right of self-representation because the defendant posesa real or perceived threat or harbors an ulterior motive].) Giventhe well-established law that only serious and deliberate misconductthat disrupts the trial may justify revoking a defendant’sself- representation,it is hardly surprising that none ofthe cases cited bythetrial 37 court supportsits novel position that delay alone can result in a termination of a defendant’s pro se status. People v. Lopez (1977) 71 Cal.App.3d 568, the lead case cited bythe trial court, addresses the advisements required for a valid waiver of counsel when a defendant requests to represent himself under Faretta. It does not discuss the issue before thetrial court in this case,i.e. the circumstances that may justify revocation of that right. Indeed, in dicta, the Lopez court specifically states that revocation of the right of self- representation is limited to those instances in which “there is misbehaviorortrial disruption.” (/d. at p. 575.) Indeed, all of the cases cited by thetrial court in its ruling address whether the Faretta waiver obtained bythetrial court was adequate and thus wereirrelevantto its revocation decision. (1 CT SuppIII 97-98, citing People v. Teron (1979) 23 Cal.3d 103, 113; People v. McKenzie (1983) 34 Cal.3d 616, 628; People v. Clark, supra, 3 Cal.4th 41, 106; People v. Curry (1977) 75 Cal.App.3d 221, 225; People v. Salas (1978) 77 Cal.App.3d 600, 604.) There is no evidence whatsoeverthat appellant’s actions, even if they caused delay, compromisedthe court’s ability to conducta fair trial. Hedid not attempt to manipulate the proceedings, and he broke no promises. Nor wasappellant“disruptive, obstreperous, disobedient, disrespectful or obstructionist.” (People v. Welch (1999) 20 Cal.4th 701, 735.) There is no evidence, or even any suggestion, that appellant’s insistence that the prosecutor comply with the discovery orders was simply a ruse to delay the preliminary hearing. Far from depicting distuption or obstruction, the record portrays a hard-working pro se defendant doing everything he could to prepare for the preliminary hearing. The record establishes that while proceeding pro se appellant consistently conducted himself in a mannerthat evinced his strong interest in advocating his innocence. Prior to being grantedpro se status, appellant 38 filed an ex parte letter with the court outlining his defense strategy. (Sealed CT 3175-3178.) During the four and halfmonths appellant was allowed to represent himself, he fully complied with the defense plan outlined in this letter and tacitly approved bythetrial court. On the day that appellant was granted prose status, he filed motions with the court for pro se funds, appointment of an investigator (with whom he had already met), and an order for discovery compliance. (1 CT Supp III 39-40; Sealed CT 3179- 3185, 3162-3174.) Appellant consistently and persistently attempted to identify and obtain discovery to whichthe district attorney admitted appellant was entitled, and even indexed the documents he had received to help identify the missing discovery. (I CT 235-236, 1 CT SuppIII 70-71, 82-83.) Appellant also sought to gather appropriate information from third parties through the issuance of subpoena duces tecum. (1 CT SuppII 82.) Finally, appellant filed a motion seeking appointmentofadvisory counsel, in which he emphasized that because he was only provided two hours a day for accessto the prison library, typewriter and telephone, he was having difficulty preparing both his guilt phase and penalty phase defenses, and required the assistance of standby courisel. (Sealed CT 284- 298.)"? '2 As noted previously, the court refused to issue body attachments on the returned subpoenas, and instead asked appellant and his investigator to reissue the subpoenas.(1 CT SuppIII 82.) ® Thetrial court’s cursory treatment of appellant’s request for advisory counsel, and the concomitant abuse of discretion, is further indication ofthe trial court’s arbitrary rejection of appellant’s Sixth Amendmentrights. A request for appointment of advisory counsel may only be denied after a court exercisesits judicial discretion in carefully weighing the request. (People v. Bigelow (1985) 37 Cal.3d 731, 744-745.) In this case, the court failed to engage in the necessary analysis exercise of (continued...) 39 Despite diligent, respectful work, appellant was penalized with revocation of self-representation for insisting that he be given discovery to whichhenot only wasentitled but whichthetrial court itself had found he needed before the preliminary hearing. Any delay which may have occurred was benign andinevitable, and certainly not a properbasis for termination. 3. The Trial Court’s Unsubstantiated Finding That Appellant Was Unable to Defend Himself Adequately Does Not Justify Terminating His Self- Representation In revoking appellant’s prose status, the trial court also relied on appellant’s alleged failure to provide adequate representation to himself. This was error. As a preliminary matter, the record does not support the finding that appellant was unable to defend himself. Indeed, as previously discussed, the record suggests otherwise. Appellant vigorously and persistently pressed his case, attempting to obtain the discovery he needed to refute the charges. (See ante pages 30-33.) Moresignificantly, Faretta itself holds a defendant’s alleged inability to defend himself does notjustify denying his right to self- representation. (Faretta v. California, supra, 422 US.at p. 834.) In Godinez v. Moran (1993) 509 U.S. 389, the High Court reiterated Faretta’s ruling that “the defendant’s ‘technical legal knowledge’ is ‘not relevant’ to '3(__ continued) judicial discretion. The trial court did not take into account any ofthe appropriate factors in evaluating appellant’s request, such as the nature of the case, the complications of the issues presented, or appellant’s educational background and sophistication. (People v. Crandell (1988) 46 Cal.3d 833, 863). Instead, the court opined that the public defender’s office would refuse the appointment, and the court itselfwas unwilling to have the county pay the cost. (1 CT SuppIII 98.) 40 the determination whether he is competent to waive his right to counsel” (/d. at p. 400, citations omitted) and “chgose self-representation.” ( Jbid., original italics.) In taking this unequivocalposition, the High Court fully realized that waiving the assistance of counsel almost always has a deleterious effect on the quality of the defense presentedat trial. (See Faretta v. California, supra, 422 U.S.at p. 834 [it is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts”]; Godinez v. Moran, supra, 509 U.S.at p. 399 [“[t]he competencethat is required of a defendant seeking to waive his right to counsel is the competence to waivethe right, not the competenceto represent himself”]; see also Martinez v. Court of AppealofCalifornia, Fourth Appellate Dist. (2000) 528 U.S. 152, 161 [““experience has taught us that a pro se defense is usually a bad defense, particularly compared to a defense provided by an experienced criminal defense attorney”].) Undoubtedly, the Sixth Amendmentright to effective assistance of counsel and the Sixth Amendmentrightto self-representation maybeat odds, but the federal Constitution guarantees a criminal defendant the right to waive the formerin favor ofthe latter. The only limitation with respect to quality ofrepresentation is that a defendant whoelects to represent himselfmay not later complain that he wasineffectively represented. (Faretta v. California, supra, 422 U.S.at p. 834, fn. 46.) In applying Faretta, this Court has held that “the defendant’s ‘technical legal knowledge’is irrelevant to the court’s assessment of the defendant’s knowingexercise ofthe right to defend himself.” (People v. Windham (1977) 19 Cal.3d 121, 128, quoting Faretta v. California, supra 422 U.S.at p. 836; see also People v. Welch, supra, 20 Cal.4th at p. 732 fn. 4 [adequacy ofrepresentation not a valid consideration in determining whether to grant Sixth Amendmentrightto self-representation].) As this 4l Court recently explained, “self-representation more often than notresults in detriment to the defendant,ifnot owtright unfairness. (People v. Blair, supra, 36 Cal.4th at p. 739.) Yet, “irrespective ofhow unwise such a choice might appear to be” (People v. Dent, supra, 30 Cal.4th at p. 218), self-representation cannot be terminated without deliberate misconduct. Other courts agree. (See Hirschfield v. Payne (9th Cir. 2005) 420 F.3d 922, 928 [trial court’s denial of request for self-representation on the groundsthat defendant lacks sufficient legal knowledge is erroneous and directly contrary to Supreme Court precedent]; United States v. Arlt (9th Cir. 1994) 41 F.3d 516, 518 [trial court’s denial ofrequest to proceed pro se based on defendant’s filing of meritless motions without a logical or legal foundation was improper, as there was no evidence defendant was incompetentto standtrial]; Peters v. Gunn (9th Cir. 1994) 33 F.3d 1190, 1192 [trial court’s denial of appellant’s Faretta rights based on findingthat it was guaranteed appellant could not do a competent job in representing himself was improper]; People v. Hightower (1996) 41 Cal.App.4th 1108, 1116 [having found defendant competentto standtrial, it was improper for trial court to deny appellant’s request for self-representation].) The decision in People v. Poplawski (1994) 25 Cal-App.4th 881, is particularly instructive. The Court ofAppeal reversed thetrial court’s decision to revoke the pro se status of a defendant whom thetrial court found had limited English proficiency, did not understand courtroom terminology, and was unable to exactly grasp the proceedings. (/d.at p. 894). The Poplawski court first read the Faretta requirementthat a pro se defendant must “comply with relevant rules ofprocedural and substantive law” (Faretta v. California, supra, 422 U.S.at p. 835, fn. 46) not as identifying a basis for revocationofpro se status but rather as precluding an appellate claim of ineffective assistance of counselat trial. (Poplawski,at 42 p. 895.) The court next reasoned that absent some showingthat a defendant’s poor performance arises from more than mere ignorance, the right of self-representation cannot be denied based onhis or her performance. (Jbid.) The court noted “were weto construe Faretta andits progeny as requiring the denial ofpro se status merely on the basis of an accused’s ignoranceofthe relevant rules ofprocedure, substantive law, and courtroom protocol, few requests for self-representation would ever be granted.” ([bid.) As Papolowski makesclear, inadequacies — even severe deficiencies — in a pro se defendant’s ability to represent himself are not grounds for revokinghis self-representation. As in Poplawski, the only reasonable inference to be drawn from the record in this case is that any inadequacies on appellant’s part arose from his ignorance, not from misconductor attempts to manipulate the proceedings. Appellant filed timely and meritorious discovery motions and wasconsistently polite and respectful in his dealings with the court and opposing counsel during the pendencyofhis self-representation. Moreover, appellant’s request for the appointmentofadvisory counselindicates his awareness of his own limitations andhis desire to utilize the appropriate resource to facilitate his self-representation. In derogation ofthe incontrovertible rule that a defendant’s ability to represent himself is irrelevant to his right to represent himself, the trial court revoked appellant’s self-representation on its finding that “the quality of [his] representation was not adequate.” (1 CT Supp. III 99.) This decision was Sixth Amendmenterror. 43 4. Appellant’s Conduct, Viewedin the Totality of the Circumstances, Did Not Subvert the Trial, and Did Not Justify Terminating His Self-Representation Particularly in Light of the Trial Court’s Complete Failure to Warn Appellant Prior to Revoking His Pro Se Status As this Court noted in Carson,thetotality ofthe circumstances must inform the trial court’s exercise of its discretion in terminating a defendant’s Faretta rights. (People v. Carson, supra, 35 Cal.4th at p. 12.) In evaluating a defendant’s perceived misconduct, “[u]itimately the relevance inheresin the effect of the misconducton the trial proceedings, not the defendant’s purpose.” (/d. at p. 11.) Other significant factors to be consideredare “the availability and suitability of alternative sanctions”(id. at p. 10); “whether the defendant has been warmedthat particular misconduct will result in termination of in propria persona”(ibid.); and the degree to which the alleged misconduct is removed fromtrial, and thus “more subject to rectification or correction.” (Jbid.) Even assuming, arguendo,that in some cases the delay caused by a pro se defendant’s discovery litigation, without a showing of obstructionist misconduct, could justify terminating his self-representation, underthe facts of this case, it cannot. The reasonis threefold: (1) the trial court is at least partially responsible for the delay caused by the discovery problems; (2) the trial court did not consider, let alone attempt, less drastic sanctions; and (3) the trial court gave appellant no warningthat his insistence on obtainingall discovery before the preliminary hearing would jeopardize his pro sestatus. Asa result, the revocation order wasas abrupt as it wasarbitrary. Asthe record clearly shows, this case was bogged down in a discovery dispute. Althoughat the July 10, 1995 hearing the trial court stated that it would set the matter for a formal discovery motionifthe 44 district attorney refused to produce materials (1 CT Supp.III 71), the court never did. The trial court thus failed to perform its supervisory function and take charge of the production of discovery. Any resulting delay is the responsibility of the trial court for failing to exercise its authority to assure that both parties fully complied with their discovery obligations. (Pen. Code, § 1054.5.) If the trial court believed that appellant was unnecessarily delaying the proceedings, the proper recourse wasto set a firm date for the preliminary hearing. (United States y. Flewitt, supra, 874 F.2d at p. 675 [“‘Thus,ifthe district judge determines that the defendant’s requestis part of a pattern of dilatory activity, the court has the discretion to deny the continuance and require the defendant to proceedto trial on the scheduled date”].) That would be the appropriate remedy whena trial court perceives that an attorney is unreasonably delaying the orderly process of a criminal case. Appellant deserved no less. As the High Court has noted, a pro se defendant“is entitled to as muchlatitude in conducting his defense as we haveheld is enjoyed by counsel vigorously espousing a client’s cause.” (Jn re Little (1972) 404 U.S. 553, 555.) The trial court here did not pursue this option. In fact, the trial court did not consider any remedial action short of terminating appellant’s Faretta right for the purported delay problem which it previously had not even bothered to mention. This Court views revocation ofpro se status as a measureoflast resort. In Carson, the Court emphasized that before revokingprosestatus, the trial court must not only warn the defendant but also must consider “the availability and suitability of alternative sanctions.” (People v. Carson, supra, 35 Cal.4th at p. 10.) The Court specifically noted that “[m]isconduct that is more removed from thetrial proceedings, more subject to rectification or correction, or otherwiseless likely to affect the fairness of 45 the trial may not justify complete withdrawal of the defendant's right of self-representation.” (Ibid.) Delay in getting to the preliminary hearing certainly comes within this category. | Thetrial court here utterly failed, as required by Faretta and Carson, to give appellant any warning that his discovery litigation or his inadequate lawyering risked revocation of his pro se status. There were four court hearings in the four-month period in which appellant represented himself before thetrial court issued its revocation order on September 28, 1995. At none ofthose hearings did thetrial court even hint that persisting in attempts to enforce discovery compliance would result in the withdrawalof appellant’s self-representation. To the contrary, the trial court approved of appellant’s discovery requests, agreed that appellant needed the discovery before the preliminary hearing could take place, and on his own motion, repeatedly continued the court hearings to permit the district attorney to producethe outstanding discovery. Given these uniquefacts, the trial court not only failed to give appellant the required warning but his comments and actions effectively, although mostlikely unintentionally, misled appellant into believing that his self-representation was secure and proceeding apace. Thus,thetrial court’s revocation order was completely unexpected."* Viewingthetotality of circumstances,it is evident that whatever 4 This case thus contrasts sharply with cases upholding revocation orders wherethe trial court first warned the defendant that continued misconduct wouldresult in termination. (People v. Clark, supra, 3 Cal.4th 41, 114 [court twice warned appellantnot to abuse his pro perstatusorit would be revoked]; People v. Davis, supra, 189 Cal.App.3d 1177, 1200 [trial court warned appellantthat future statements by counsel during examination would result in termination ofFaretta right]; United States v. Brock (7th Cir. 1998) 59 F.3d 1077, 1079 [trial court repeatedly attempted to secure cooperation of the defendant and twice held him in contemptprior to revoking pro se status].) 46 delay may have occurredas a result of appellant’s self-representation, it was not deliberate, serious misconduct whichthreatened to subvert the core concept of thetrial. (See Faretta v. California, supra, 422 U.S.at p. 834 fn. 46.) As such,thetrial court’s ruling was erroneous,particularly in light of its own failure to take control of the discovery dispute, explore alternative solutions to the delay problem, and give appellant any warning that he mightlose his right to represent himself. 5. Appellant’s Reaction to Termination ofhis Self- Representation Does Not Justify the Trial Court’s Decision The alleged misconduct by the appellant — his throwing pencils — whenthetrial court unexpectedly terminated his self-representation cannot be usedto justify the revocation. Significantly, the trial court repudiated rather than relied on this incidentto justify its decision. In rejecting appellant’s motion to reinstate his pro se status, the trial court was explicit that the basis for the denial was not concern with potential disruptive conduct, but only concern with appellant’s perceived dilatory conduct and ineffective legal representation. (1 CT SuppIII. 98-99.) Appellant’s frustrated outburst was not, as a matter of fact, the reason helost his pro se status.'° Moreover, appellant’s pencil-throwing could not, as a matter of law, justify the revocation order. Courts, with good reason, prohibit such post- hoc rationalizations. In the much-cited United States v. Dougherty, supra, 473 F.2d at p. 1126, the court rejected the government’s argumentthat a '’ Thetrial court’s denial of appellant’s motion for reinstatement of his prose status is not relevant to the issue before this Court. Thetrial court’s erroneous revocation of appellant’s pro se status wasreversible per se, and is inalterable by subsequent proceedings that do not attempt to remedythis error. 47 defendant’s conduct following the denial of the pro se motions could be relied uponto justify the denial. As the Dougherty court noted, “[t]his is like using the fruit of an unreasonable search to provide a cause making the search reasonable.” (/bid.; see People v. Welch (1999) 20 Cal.4th 701, 734- 735 [affirming denial ofFaretta request relying on defendant’s disruptive conduct before,not after, trial court’s ruling].) The Ninth Circuit has taken a similar position. In Bribiesca v. Galaza (9th Cir. 2000) 215 F.3d 1015, 1020, disapproved on other grounds, Kanev. Espitia (2005) __U.S.__, 126 S.Ct. 407, 408,the trial court denied the defendant’s request to represent himself in a murdercase. Immediately after his request was denied, the defendant interrupted the court and protested the court’s ruling. (/bid.) The California appellate court upheld this denial, finding that “Bribiesca had demonstrated such obstructionist conduct that he could not abide by rules of courtroom procedure and protocol.” (dd. at p. 1019.) The Ninth Circuit, reversing on another ground, observed that the subsequent misconduct “could not have been, and wasnotin fact, the reason forthe trial court’s decision... it is clear that the misconduct did not cause the denial; rather, if anything, the denial prompted the misconduct.” (/bid.) As in Dougherty and Bribiesca, appellant’s act of throwing pencils in the courtroom was promptedbythe denialofhis rightto self- representation. This conduct cannot be usedto justify the trial court’s decision to revokehis pro se status because having occurredafter the denial, it could not have been, and wasnot, the reasonthe trial court revoked his prosestatus. D. Reversal Is Required The erroneous denialofthe rightto self-representation is reversible per se. (McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8; People v. 48 Dent, supra, 30 Cal.4th at p. 217). Thus, appellant need not show that he suffered any prejudice from the error. (People v. Joseph, supra, 34 Cal.3d at pp. 946-948; People v. Ortiz (1990) 51 Cal.3d 975, 988-989.) As shown above,the trial court terminated appellant’s pro se status for factually unsupported and constitutionally impermissible reasons. Where,as here, the trial court improperly revokes appellant’s right to self representation and no valid basis exists in the record for the revocation, reversal is required. (People v. Poplawski, supra, 25 Cal.App.4th at p. 896; see Dent, at p. 218 [samerule applied to denial of self-representation].) Accordingly, this Court should reverse the judgment. // // 49 I THE TRIAL COURT ERRONEOUSLY FORCED APPELLANT TO WEAR A REACT BELT RESTRAINT DURING THE GUILT PHASEOF HIS CAPITAL TRIAL IN VIOLATION OF STATE LAW AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT In People v. Mar (2002) 28 Cal.4th 1201, this Court held that the guiding principle ofPeople v. Duran (1976) 16 Cal.3d 282, that there be a showing of manifest necessity before the imposition of a restraint on a defendant in a criminalaction, applies to the use of a stun belt. In discussing the appropriatenessofa trial court’s imposition ofthe stun belt, this Court noted its concern with the “psychological consequences” of requiring a defendantto wear a stun belt and the impactthe use of such a device may have onthe exercise of a defendant’s constitutional rights of defense. (People v. Mar, supra, 28 Cal.4th at pp. 1227-1228.) Recognizing that concern for a defendant’s constitutional rights requires that a court imposethe least restrictive and most reasonable alternative to control and secure the court’s functions, this Court identified factors, above and beyond those outlined in Duran,that a trial court must consider to assure that the stun belt is both safe and appropriate and theleast restrictive type of restraint in the particular case. (/d. at pp. 1205-1206.) In this case appellant was subjected to physicalrestraints throughout the duration of the proceedings. Beforetrial, the court refused to entertain appellant's motions regarding his restraints and delegated all security decisions to the sheriff. Oncethe trial began, however, the court unilaterally and without a proper consideration of the particular facts of this case elected to put a REACTstun belt on appellant. Later, at the start of the penalty phase, when appellant refused to wear the stun belt, the trial court 50 ordered that he be shackled instead. Becausethetrial court knew that appellant suffersed from a serious heart condition and wasthe primary witness on his own behalf, the decision to place him in a stun belt at the guilt phase necessarily impededthe exercise of his Sixth and Fourteenth Amendmentrights and requires reversal. A. Proceedings Below On May 19, 1995, appellant filed a pro se motion objecting to the use ofphysical restraints. (I CT 203.) Appellant argued that the sheriff's use ofphysical restraints, which were handcuffs, waist chain and leg chains, was excessive and improperly impaired his ability to participate effectively in the defense of his case in violation of the Sixth and Fourteenth Amendments. (I CT 205-209.) In seeking to be relieved from the extensive physicalrestraints, appellant argued that their use affected his “ability to concentrate and prepare my defense before, during and after court appearances.” (I CT 206.) Appellant further argued that even if manifest need were shown,the court was required to imposetheleast restrictive form - of restraint. (I CT 210.) On May19, 1995,the trial court ruled that “no order shall be made either allowing or disallowing defendant’s motion” on the groundsthat “security is under the sheriffs jurisdiction and that the matter will have to be resolved between the sheriff's department through the courtroom bailiff and the defendant.” (I CT 13.) Thetrial court explained, “[o]n the restraints, I have ruled. Andthatis up to the sheriff, and I am not going to get involved with that.” (1 CT SuppIII 42.) From the beginning of the proceedings, the trial court andits staff were aware that appellant suffered from a heart condition. On March 14, 1995,the trial court signed an order for appellant to receive a special diet. (I CT 12.) On February 13, 1996, appellant’s newly-appointed counsel 51 informedthetrial court that “based on a medical examination Mr. Becerra wasput on a special, assigned a special diet because he suffers from very severe high blood pressure ... He has been deniedthatdiet.” (I CT 34-35.) Thetrial court agreed to sign a medical order for a low sodium diet, and noted the importanceofthe jail providing appellant an appropriate diet and potentially medication given his medical condition. (I CT 35.) In appellant’s first appearance before the Honorable J.D. Smith, who presided overthe trial, appellant explained that he was on a medical diet for his high blood pressure and wasno longerreceiving the appropriate diet. (1 RT B-3-B-5.) On June 9, 1997, a few weeks before jury selection began, appellant once more discussed his high blood pressure with the court. At this proceeding, the court agreed to assist appellant in his efforts to obtain the previously ordered special diet as well as the previously prescribed medication. (1 RT N-3-N4). At the next proceeding, on June 27, 1997, which wasthefinal court appearanceprior to jury selection, appellant’s counsel once again informedthe court that appellant wasstill having trouble receiving the appropriate diet and medication within the jail. The trial court asked the bailiff to check into this problem and noted “blood pressure is a very serious and dangerous thing.” (1 RT O-19.) Prior to the guilt phase of thetrial, the trial court ordered that appellant wear a REACTstun belt. (12 RT 1488.)'° Appellant testified on his own behalf at the guilt phase. His testimony extended overthe course oftwo days. Appellant’s testimony '© There is no transcript of these proceedings. However, the record establishes that before the beginning ofthe guilt phase,the trial court ordered that appellant wear a stun belt. (12 RT 1488.) During record correction proceedings, the trial court concluded that there was no reporter’s transcript about the decision to use a stun belt. (12/10/03 RT 3 [record correction proceedings].) 52 confirmed muchofthe prosecution’s case, but differed in significant details. Appellanttestified that he had cometo the Pacific Grand with drugsthat he had stolen (9 RT 1102); that sometime on December24, 1994, he lost those drugs (9 RT 1116); that he suspected that Harding and Miller had his drugs (9 RT 1116; 10 RT 1266); that he and two ofhis “homeboys”ransacked Miller’s room and another room searching for his drugs (9 RT 1129-1132); that he threatened both Miller and Harding in orderto get his drugs returned (9 RT 1173); and that over half of what had been taken was ultimately returned by Miller and Harding (9 RT 1144). However, appellant denied that he remained angry overtheloss of his drugs (10 RT 1283), and he testified that he had reached an agreement with Harding and Miller for each to repay him in some wayfor the missing drugs (9 RT 1140; 10 RT 1272, 1282). Appellant also denied ever telling Donna Meekeythat he got the drugs from the Mexican Mafia (11 RT 1157), and denied that his drug sales were in any way involved with gang activity (11 RT 1180). Moreover, appellant denied any involvementin the death of Harding and Jackson. (11 RT 1175.) The jury wasinstructed and began deliberations in the guilt phase on July 24, 1997. (X CT 2863.) After four days of deliberations, the jury reacheda verdict, finding appellant guilty on all counts and the multiple- murder special circumstanceto be true. (X CT 3051.) Immediately after the jury returned its verdict, appellant informed the court, through his counsel, that he wanted to proceed pro se. (12 RT 1469.) The court encouraged appellant to carefully consider his decision andinsisted that appellanttalk to his relatives and attorneys before the court would consider ruling on his motion. (12 RT 1471, 1472, 1473.) Responding to appellant’s request, the court specifically noted that appellant “had not given me any trouble.” (12 RT 1472.) 53 Onthe following morning, appellant agreed to proceed with counsel. (12 RT 1482.) This decision was apparently made without input from his attorneys, as appellant’s lead counsel stated that he was unpreparedin part because he assumed“the defendant was going through with his Faretta motionandasoflast night that was the situation.” (12 RT 1484.) Appellant appeared unshavenandinjail clothes. (12 RT 1486.) Appellant also told the court that he would no longer wear the stun belt, asking instead that he be shackled. (12 RT 1488.) Appellant informedthe court that he soughtthis less restrictive and more appropriate form of restraint because he was concermedaboutthe potential impact of an electrical shock given his heart condition. (bid.) Both the sheriff and the court agreed that given appellant’s medical condition, shackling was a more appropriate form of restraint than the REACTbelt. (bid.) B. Before A Stun Belt May Be Imposed On A Criminal Defendant, The Trial Court Must Determine That There Is A Manifest Need For Physical Restraints And That A Stun Belt Is Both The Least Restrictive Form Of Restraint And A Safe And Appropriate Device This Court long ago recognized that handcuffs, shackles, manacles, leg irons and other physical restraints “abridge and prejudicially affect[a defendant’s] constitutional rights of defense”as well as his ability to testify on his own behalf. (People v. Harrington (1871) 42 Cal. 165, 168.) From its inception the California Penal Code has prohibited a defendant from being subjected to any morerestraint than is necessary to maintain the defendant’s presence in court. (§ 688.) To protect these rights, this Court has required thata trial court satisfy a two-part test before imposing physical restraints upon a defendant. First, there must be a showing of manifest need for restraints. (People v. Duran, supra, 16 Cal.3d at p. 290.) Second,in selecting the particular restraints to be used, the court must 54 “order the physical restraint most suitable for a particular defendantin light ofthe attendant circumstances.” (Jd. at p. 291.) In People v. Mar, supra 28 Cal.4th 1201, this Court held that the use of stun belts was, at a minimum,subject to the principles set forth in People v. Duran, supra, 16 Cal.3d 282. This Court recognized that the imposition of a stun belt raised particular concerns in relation to the second prong of the Durantest — that the restraint imposed be both safe and appropriate and the least restrictive device available. (People v. Mar, supra, 28 Cal.4th at p. 1226.) As this Court explained, stun belts, while less visible than other types ofphysical restraints, raise uniquerisks that require thetrial court to consider additional factors within the Duran rubric. (/d. at pp. 1205-1206.) The REACTstun belt, the device used on appellant, will deliver an eight-second 50,000-volt electric shock if activated by a remote transmitter which is controlled by an attending officer. The shock contains enough amperage to immobilize a person temporarily and cause muscular weakness for approximately 30 to 45 minutes. The weareris generally knockedto the ground by the shock and shakes uncontrollably. Activation may also cause immediate and uncontrolled defecation and urination, and the belt’s metal prongs may leave welts on the wearer’s skin requiring as long as six month to heal. An electrical jolt of this magnitude causes temporary debilitating pain and may cause some wearers to suffer heartbeat irregularities or seizures. (Id. at p. 1215, citations omitted.) This Court emphasized both a stun belt’s risk of accidental activations (id. at pp. 1205, 1219, 1226) andits “special danger whenutilized on persons with particular medical conditions such as serious heart problems”(id. at pp. 1206, 1229). Given the grave physical consequencesofstun belts, this Court in Maradmonishedthat courts “proceed with great caution in approving the use of this device.” (People v. Mar, supra, 28 Cal.4th at p. 1205.) This 35 Court rejected the view that a stun belt should be considered a “less restrictive and presumptively less prejudicial security tool than traditional shackles or chains.” (Jd. at p. 1226.) In reaching this conclusion, the Court addressed the ways in which a stun belt may impair a defendantattrial: Even whenthejury is not aware that the defendant has been compelled to wear a stun belt, the presence ofthe stun belt may preoccupy the defendant’s thoughts, make it more difficult for the defendantto focushis or her entire attention on the substance ofthe court proceedings, and affect his or her demeanorbefore the jury especially while on the witness stand. (Id. at p. 1219; see also id. at p. 1226 [noting that a stun belt may impede “the defendant's ability to think clearly, concentrate on the testimony, communicate with counselat trial, and maintain a positive demeanor before the jury”].) This Court in particular noted its concern that a stun belt may “materially impair and prejudicially affect” a defendant’s “privilege of becoming a competentwitness and testifying in his own behalf.” (/d.p. 1216,citation omitted.) In the courseoflitigation it is not “unusual for a defendant, or any witness, to be nervous whiletestifying, but in view of the nature of a stun belt and the debilitating and humiliating consequencesthat such a belt caninflict, it is reasonable to believe that many if not most persons would experience an increase in anxiety if compelled to wear such a belt while testifyingat trial.” (/bid.) This “increase in anxiety” may impact a defendant’s demeanoronthe stand; this reaction, in turn, may impact a jury’s perception ofthe defendant, thus risking material impairmentof anda prejudicial effect on the defendant’s “privilege of becoming a competentwitnessandtestifying on his own behalf.” (Jd.at p. 1216.) For these reasons, even when unobservedbythe jury, the use of stun belts raises all of the traditional concerns aboutprejudice to the 56 993“constitutional rights of defense’” that attend the imposition of any physical restraints. (/d. at p. 1220, quoting People v. Harrington, supra, 42 Cal. at p. 168.) Given the physical and psychological risks associated with stun belts, the Court expressly concluded “that a trial court before approving the use of such a device, should require assurance that a defendant’s medical status and history has been adequately reviewed and that the defendant has been foundto be free of any medical condition that would render the use of the device unduly dangerous.” (/d. at p. 1206; see also id. at p. 1229.) In short, a stun belt should not be approved whereits risks are “more onerous than necessary to satisfy the court’s security needs.” (/d. at p. 1206.) These concerns are especially pressing where a defendanttestifies in his own behalf. (/d. at p. 1219, 1224-1225.) In addition to the state law limits set forth in Mar, the unnecessary use of any physical restraints on a state criminal defendantviolates his right to due process under the Fourteenth Amendment. (Holbrook v. Flynn (1986) 475 U.S. 560, 569-570.) The United States Supreme Court has explained that because shackling is inherently prejudicial, “it should be permitted only wherejustified by an essential state interest specific to each trial.” (/d. at pp. 568-569.) The High Court recently reaffirmed that shackling a defendant at guilt phase implicates Fifth and Fourteenth Amendmentdue process concerns because it compromises the presumption of innocence, interferes with a defendant’s ability to communicate with his lawyer, impedes a defendant’s ability to testify in his own defense, and undermines the dignity and decorum ofthe courtroom. (Deck v. Missouri (2005) 544 U.S. 622, 125 S.Ct. 2007, 2013.) The lower federal courts, like this Court, have expressed concern aboutthe prejudicial effect of a stun belt on a criminal defendant. 57 (Gonzalez v. Pliler (9th Cir. 2003) 341 F.3d 897, 899-900; United Statesv. Durham (11th Cir. 2002) 287 F.3d 1297, 1305-1306.) They also have cautioned that the device may undermine a defendant’s due process and Sixth Amendmentrights including the presumption of innocence,the right to a fair trial, the right to participate in his defense, and the right to confer with counsel. (Gonzalez v. Pliler, supra 341 F.3d at p. 900; Durham, at pp. 1304-1306.) Forthis reason, “a decision to use a stun belt must be subjected to at least the same ‘close judicial scrutiny’ required for the imposition of other physical restraints.” (Durham,at p. 1306; see also Gonzalez,at p. 900 [before stun belt is used there must be a showing of compelling circumstances of the need for physical restraints and that less restrictive alternatives have been pursued]; accord, Spain v. Rushen (9th Cir. 1989) 883 F.2d 713, 728 [failure to consider and imposelesser restrictive formsofrestraint is violation of due process requiring reversal of conviction.].) C. ‘The Trial Court Violated Appellant’s Constitutional Trial Rights By Delegating All Decisions About Physical Restraints To TheSheriff, Failing To Make An Independent Determination Of Whether A Stun Belt Was The Least Restrictive And Medically Appropriate Restraint, And Requiring Him To WearA Stun Belt Despite His Serious Heart Condition Thetrial court’s imposition of the stun belt on appellant throughout the guilt phase arose from series oferrors bythe trial court, each of which flowed from the prior, and which when considered together, denied appellanthis right to due process and related constitutionaltrial rights. First, the trial court abdicated its responsibility to make an independent determination that some form ofphysical restraint was necessary, allowing this decision to be madesolely by the sheriff. Second, as a consequence of the trial court’s abdication ofjudicial responsibility, there was no 58 independent determination that a stun belt wasthe least restrictive and medically appropriate form ofrestraint. As a result, the court illegally and inappropriately required appellant to wear a stun belt despite his serious heart condition. These cascading failures resulted in a violation of appellant’s state and federal constitutional rightsto a fair trial. Although there may have been manifest necessity for some kind of physical restraintin this case, the trial court abdicated its duty under the second prong of the Duran/Maranalysis to determine that the stun belt was the least restrictive security tool and “was safe and appropriate under the particular circumstances.” (People v. Mar, supra, 28 Cal.4th at p. 1230.) Thetrial court did not “proceed with great caution” as required by Mar, supra, at p. 1205, in deciding that appellant must wear stun belt at the guilt phase, including during the day and a half of his testimony. In fact, the trial court made no determinationat all about whether a stun belt was | the least restrictive form of restraint or was safe and appropriate for appellant. Instead offulfilling its judicial duty under Duran, supra, 16 Cal.3d at p. 291, the trial court flatly refused to rule on appellant’s pro se pretrial motion to removehisrestraints, stating “that is up to the sheriff, and I am not going to get involved with that.” (1 CT Supp III 42.) This absolute delegation plainly violated the trial court’s duty to makeits “own determination of ‘manifest need’ for the use of suchrestraint as a security measurein the particular case.” (People v. Mar, supra, 28 Cal.4th at p.1218, original italics.) The determinations ofboth the manifest necessity for a restraint and the appropriateness ofthe particular restraint based on the particular facts of a case are decisionsthat the trial court must make independently. They are not decisions that may be delegated. (People v. Hill (1998) 17 Cal.4th 800, 841 [trial court must make independent determination ofmanifest necessity and “abusesits discretion 59 if it abdicates this decisionmaking responsibility to security personnel or law enforcement”); People v. Fierro (1991) 1 Cal.4th 173, 219 [failure by trial court to make independent determination ofneed to shackle defendant at preliminary hearing was abuse ofdiscretion]; People v. Cox (1991) 53 Cal.3d 618, 652 [trial court must make determination ofmanifest need based on facts that are present in the record and not on mere rumoror innuendo]; People v. Duran, supra, 16 Cal.3d at p. 293 [trial court must make decision to impose physical restraint on a case-by-case basis and not as a matter of general policy].) In this case, the trial court did not reach an independent determination that a stun belt was needed and“that the defendant ha[d] been found to be free of any medical condition that would render the use of“ the device unduly dangerous.” (People v. Mar, supra, 28 Cal.4th at pp. 1201, 1206.) At somepoint after the trial court’s improper abdication to the sheriff of all decisions regarding the use ofphysical restraints in this case, appellant was required to wear a stun belt. (12 RT 1488.) It is evident that the court did not consider appellant’s medical condition in ordering that he wear stun belt, because had the court doneso, appellant’s heart condition would have precludeduse of the stun belt. (Hawkinsv. Comparet-Cassani (2001) 251 F.3d 1230, 1234 [citing to Los Angeles County Sheriff’s written policy precluding the use of the REACTstun belt on “persons with heart diseases”in civil action to enjoin use ofstun belt in Los Angeles County courtrooms].) Having been categorically informed by the court that it would not hear appellant’s complaints about his physical restraints and that all decisions about such restraints rested with the sheriff, appellant at this juncture was left without judicial recourse. (See People v. Dent(2003) 30 Cal.4th 213, 219 [“[w]e do not require trained counsel to repeatedly makea motion that has been categorically denied; how much 60 more should we require of an untrained defendant seeking self-representation?”]; City ofLong Beach v. Farmers and Merchants Bank ofLong Beach (2000) 81 Cal.App.4th 780, 784 [having raised the issue before the trial court and asked for a ruling, counsel reasonably could believe further action was futile]; People v. Hopkins (1992) 10 Cal.App.4th 1699, 1702 [after trial court overruled mistrial motion, defense counsel could reasonably believe further objection would be fruitless].) Thus, the trial court’s unlawful abdication of his judicial duty to determine both the necessity of restraints and whatrestraints were safe and appropriate rendereduse ofthe stun belt on appellant unlawful. (People v. Mar, supra, 25 Cal.4th at p. 1226.) Thetrial court’s unlawful delegation of his judicial authority to the sheriff not only violated state law, but also infringed upon appellant’s federal due process rights. The due processclauses of the Fifth and Fourteenth Amendments prohibit the use ofphysical restraints “absent a trial court determination in the exercise of its discretion that they are justified by a state interest specific to a particular trial.” (Deck v. Missouri, supra, 125 S.Ct. at p. 2012.) As the Deck court noted, although there is not unanimity about “specific procedural steps a trial court must take”priorto the imposition ofphysical restraints, there is unanimity on “the basic principle” that the court must exercise its discretion. (Jbid.) Whateverelse may be required, at a minimum due process requires that prior to the imposition of a particular form ofphysical restraints, the trial court must “take[ ] account of the circumstancesofthe particular case.” (Deck, supra, 125 S.Ct. at p.1024; see Langnes v. Green (1931) 282 U.S. 531, 541 [describing the exercise of discretion as “a sound discretion,that is to say, a discretion exercised notarbitrarily or willfully, but with regard to whatis right and equitable under the circumstancesand the law, and directed by the 61 reason and conscienceofthe judgeto a just result”].) Additionally, the trial court’s unlawful delegation violated appellant’s rights under both the confrontation clause of the Sixth and Fourteenth Amendments andhis eee federal constitutional right to be present at any proceeding ““wheneverhis presencehasa relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.’” (Kentucky v. Stincer (1987) 482 U.S. 730, 745, quoting Snyder v. Massachusetts (1934) 291 U.S. 97, 105- 106; United States v. Gagnon (1985) 470 U.S. 522, 526; Badger v. Carwell (9th Cir. 1978) 587 F.2d 968, 970 [finding violation of defendant’s right to be present when he wasexcluded uponinsufficient showing that he would not be peaceful].) As a result ofthe trial court’s repeated and significant failures to adhere to the procedural requirements for the use of physicalrestraints, appellant was required to wear the stun belt despite the fact that for him it wasneither a safe nor appropriate restraint. Although informed of appellant’s serious heart condition,the trial court failed to consider the impactthat requiring appellant to wear a stun belt would have on the exercise of his constitutional rights. The trial court was repeatedly made awareof appellant’s heart condition (1 RT B-3, B—4, O-19), and the court itself identified that appellant’s high blood pressure was a “very serious and dangerousthing” (1 RT O-19). The Los Angeles County Sheriffs own policies prohibit the use ofthe stun belt on persons,like appellant, with heart disease. (Hawkins v. Comparet-Cassani, supra, 251 F.3d at p. 1234.) Asthe president of the company that manufactures the REACTbelt has explained, “We don’t recommendthat it be placed on anyone who has a heart condition. The reasonis that, if they have to wear it for eight hours, there’s a tremendous amount of anxiety. The fear will elevate blood pressure as muchasthe shock will.” (Cusac, Life in Prison: Stunning 62 Technology: Corrections Cowboys Get a Charge Out ofTheir New Sci-Fi Weaponry (July 1996) The Progressive, p. 20.) As this Court itself has noted, “use of a stun belt without adequate medical precautionsis clearly unacceptable.” (People v. Mar, supra, 28 Cal.4th at p. 1229.) Despite the court’s awareness of appellant’s medical condition, which rendered him categorically unfit for the use of the stun belt, the trial court chose to proceed with the stun belt, apparently with complete disregard for the protocols of the Los Angeles County Sheriff's Department and, more importantly, appellant’s health and hisrightto a fair trial. (Hawkinsv. Comparet-Cassani, supra, 251 F.3d at p. 1234.) Asthis Court has explained, the imposition of the stun belt does not satisfy the requirement ofDuran when“the security officials who placed the stun belt on defendant made no on-the-record showing of any circumstancesto support the imposition of a stun belt on defendant and the trial court failed to require any such showing.” (People v. Mar, supra, 28 Cal.4th at p. 1220.) This was precisely what happenedin this case. It was not until after the guilt phase, when appellant finally was able to lodge an objection to the use ofthe stun belt, that the trial court actually considered the appropriateness of the device. When appellant himself identified that the device was unsafe becauseofhis heart condition, the court agreed that the REACTbelt was not appropriate and that shackles were more appropriate for appellant. (12 RT 1488.) The record hereis clear that the use of the REACTstun belt was neither appropriate northe leastrestrictive restraint available. Thetrial court abusedits discretion in imposing a stun belt on appellant and thereby violated appellant’s Fourteenth Amendment right to due processandhis related constitutional trial rights. 63 D. The Judgment Must Be Reversed Because Appellant Was Prejudiced By Being Forced To WearA Stun Belt During The Guilt Phase This Court historically has assessed the erroneous imposition of physical restraints under People v. Watson (1956) 46 Cal.2d 818, 836-837, the standard applicable to ordinary state law error. (People v. Duran, supra, 16 Cal.3d at pp. 288-289, citations omitted.) In Mar, this Court found the improper use of a REACTbelt in that case to be prejudicial under the Watson standard, but specifically left open the question whether the “error in requiring a defendantto testify while wearing a stun belt, without an adequate showing of danger, constituted federal constitutional error that is subject to a more rigorous prejudicial error test.” (People v Mar, supra, 28 Cal.4th at p. 1225, fn. 7; see also Duran, at p. 296, fn. 15 [court did not express an opinion whether the erroneous imposition ofphysical restraints, alone or in combination with othertrial court errors, resulted in the deprivation of a federal constitutional right of sufficient stature to require reversal based the rule of Chapmanv. California (1967) 386 U.S. 18, 24].) However, as noted above, federal courts have long recognized the erroneous imposition ofphysical restraints to be of federal constitutional dimension. Federal precedent establishes that the improper use of a stun belt is not only a federal constitutional violation, but is also structural in nature, and therefore not subject to harmless error analysis. (Arizonav. Fulminante (1991) 499 U.S. 217, 307-309.) At a minimum,the error should be subject to the Chapmanprejudice standard. (Chapmanv. California, supra, 386 U.S.at p. 24.) Underany standard of review,the trial court’s erroneous imposition of a stun belt on appellant during the guilt phase, including during his testimony in his own defense, requires reversal of the judgment. 64 1. Reversal is Required Under Riggins v. Nevada The United States Supreme Court has developed distinct analyses to determine whetheran error of federal constitutional magnitude is subject to or defies harmlesserror analysis. In Arizona v. Fulminante, supra, 499 U.S. at pp. 307-309, the Court differentiated “structural error,” which defies harmlesserror analysis and thus requires automatic reversal, from “trial error,” which is amenable to such analysis and thus requires reversal when the prosecution cannot prove the error harmless beyond a reasonable doubt. (Id. at pp. 307-308.) As this Court noted in Mar, supra, 28 Cal.4th at pp. 1227-1228, the errorin this case is similar to the involuntary administration of antipsychotic medication duringtrial at issue in Riggins v. Nevada (1992) 504 U.S. 127, which the United States Supreme Court found cannot be subject to harmless error analysis. Use of a stun belt, like use of psychotropic medication, may mentally or psychologically impair a criminal defendant’s ability to conduct his defense. (People v. Mar, supra, 28 Cal.4th at pp. 1227-1228.) In Riggins v. Nevada, supra, 504 U.S. 127, the High Court, eschewingthe structural-trial error categorization, reversed Riggins’s robbery and murder convictions because the Nevada courts failed to make sufficient findings to support the forced administration of the drug Mellaril. (Id. at p. 129.) Riggins wasnot required to show how thetrial would have proceededdifferently if he had not been given Mellaril. (/d. at p. 137.) As the High Court explained: Efforts to prove or disprove actual prejudice from the record before us would be futile, and guesses whether the outcome of the trial might have been different if Riggins’ motion had been granted would be purely speculative. . . . Like the consequences of compelling a defendant to wear prison clothing, (Estelle v. Williams, supra, 425 U.S. at pp. 504-505) “or ofbinding and gagging an accused duringtrial,” (//linois 65 vy. Allen, supra, 397 U.S.at p. 344), the precise consequences of forcing antipsychotic medication upon Riggins cannotbe shown from trial transcript. (Ibid.) What the United States Supreme Court would “not ignore,is a strong possibility that Riggins’ defense was impaired due to the administration of Mellaril.” (Jbid.) The High Court held that, even ifthe Nevada Supreme Court wascorrect in holding that expert testimony allowed jurors to assess Riggins’s demeanorfairly, “an unacceptable risk of prejudice remained.” (Jd. at p. 138.) Riggins governsthis case and requires, without an actual prejudice assessment, reversal of appellant’s convictions and death judgment. The precise consequencesofforcing the stun belt restraint upon appellant cannot be shown from trial transcript. There is a strong possibility appellant’s defense was impaired dueto the involuntary stun belt restraint. An unacceptable risk of prejudice remains that, because of the stun belt restraint, jurors were not allowedto assess appellant’s demeanorfairly during the two days hetestified in his own defense. Reversalofthe judgment is required. (/d. at pp. 129, 137-138; Illinois v. Allen (1970) 397 U.S. 337, 344; Arizona v. Fulminante, supra, 499 U.S. 279, pp.[all rejecting harmlesserror doctrine for unjustified use ofphysical restraints].) 2. Even Assumingthe Erroneous Use of a Stun Belt Is Subject to Harmless Error Review, ReversalIs Required Under Both the Chapman and the Watson Standards Assumingthat improperly forcing appellant to wear a stun belt duringtrial does not require a perse reversal, appellant urges this Court to hold that the Chapman standard applies in determining whetherthe erroneous use of a stun belt requires reversal. Under Chapman,the State has the burden to prove beyond a reasonable doubtthat the error did not 66 contribute to the verdict obtained. (Chapman v. California, supra, 386 U.S. at p. 24.) “The inquiry, in other words, is not whether,in a trial that occurred withouttheerror, 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, supra, 508 U.S. at p. 279.) The prosecution should be held to, and cannot meet, this burden here. But even if this Court were to apply the Watson “reasonable probability” standard, reversal still would be necessary. Under the Watson standard, reversal is required whenthere exists “at least such an equal balanceofreasonable probabilities as to leave the court in serious doubt as to whetherthe error affected the result.” (People v. Watson, supra, 46 Cal.2d at pp. 836-837.) Whetherjudged under the Chapman standard or the Watson standard, appellant was indeed prejudiced by being forced to wear a stun belt, because the device both had an impact on his demeanor while testifying and impededhis ability to communicate with his counsel (10 RT 1233, 1260, 1286) and the prosecutor emphasized appellant’s demeanor on the witness stand, calling it evidence of his guilt (11 RT 1404). Appellant’s testimony wascritical to his defense. The prosecution’s case rested primarily on the believability of four admitted drug addicts,all ofwhom had been smoking crack heavily during the time of the events about whichthey testified, and the gang experts. Although the prosecution’s case was heavy on motive and opportunity, the other evidence linking appellant to the crime was far from compelling. The sole physical evidence against appellant were two ofhis fingerprints found at the crime scene (6 RT 728) which were as consistent with appellant’s exculpatory testimony as with the inculpatory theory put forward by the prosecution (9 RT 1138-1140). The other evidencerelied upon by the prosecution was weak and highly circumstantial: appellant’s access to cutting tools and wire 67 through his work as a glass installer (9 RT 1060, 1070; 11 RT 1354), which never were connected to the crime scene, and appellant’s prior ransacking of McPherson’s hotel room (11 RT 1336). Without overwhelming evidence of appellant’s guilt, the jury’s verdict turned on whoit found morecredible — the prosecution’s witnesses or appellant. The prosecutor conceded before the jury that the guilt phase wasa credibility contest: “The defendant’s credibility is absolutely at issue here because ifyou find that the defendant wasevasive, lied to you, was not credible, that goes to the heart of what the defenseis trying to do.” (11 RT 1404). Simply put, if the jury had believed appellant, he would have been acquitted. The pressure that any defendant would feel testifying in such a situation is tremendous — his freedom, and perhapsvery life, depends on convincing twelve strangers from entirely different walks oflife of his truthfulness. For appellant, the pressure was magnified exponentially, as he sat wired with a belt around his midriff, prepared to be shocked with 50,000 volts ofelectricity if his conduct on the stand caused any concern to a sheriff's deputy, or if the belt was accidentally activated for no reason whatsoever. In Mar, this Court acknowledgedthe plain reality of this situation (People v. Mar, supra, 28 Cal.4th at p. 1224), and foundthat“itis reasonable to conclude that defendant’s being required to wear the stun belt had at least some effect on his demeanor whiletestifying.” (People v. Mar, supra, 28 Cal.4th at p. 1225.) Not surprisingly, as a result ofall this pressure appellant,like the defendant in Mar, was extremely nervouswhile testifying. His nervousness is readily apparentin the difficulty he had in responding to manyofthe questionsthat were put to him. Thetrial court repeatedly had to remind appellant to simply answer the questions the prosecutor asked. (9 RT 1213; 10 RT 1230, 1232, 1233, 1252.) As appellant continued totestify and got 68 more and more nervous, the court repeatedly reminded him to calm down and notto interrupt the attorneys. (10 RT 1233, 1260, 1286.) The following exchange,in front of the jury, evinces appellant’s nervousness: Court: You are on the witness stand. They will ask you questions. They will go back to these questions. Your lawyer is here. All right? Answeryes or no and quit adding things. Appellant: I just want to give like an intelligent answer. Court: Would you listen to me. Calm down. I am sure they will get to it. (10 RT 1233.) The prosecutor aggravated the prejudicial effect of the stun belt by relentlessly exploiting its debilitating impact on appellant’s demeanorand, therefore, his credibility. Her comments during appellant’s testimony encouraged the jury to draw a cold, callous interpretation from what was likely understandable nervousreactions, as when she commented on appellant’s smiling by asking him,“is this funny?” (9 RT 1203.) Given that the guilt phase wasa credibility contest between appellant and the prosecution’s drug-addict witnesses, it is unremarkable that the prosecutor’s argument focused on appellant’s demeanorduring his testimony and asserted that his conduct during,as well as the contentof, his testimony showedhim tobe incredible. (11 RT 1337.) In so doing, however, the prosecutor unfairly exploited the effects of the stun belt by encouraging the jury to draw negative inferences from appellant’s demeanor which, unbeknownstto the jury, was adversely affected by the hidden stun belt. The prosecutor was direct and persistent in her attack. For example, in the openingline of her rebuttal argument, the prosecutor informed the jury that she was going to “hit on” appellant’s credibility a lot in her argument. (11 RT 1398.) The prosecutor went on to link appellant’s demeanorandhis credibility and argued that an adverse findingasto either 69 required the jury to reject the defense case. (11 RT 1404.) The prosecutor further exploited the effect of the stun belt when she arguedto the jury that appellant’s nervousness whiletestifying revealed his underlying rage. “You had the opportunity to see this defendant on the stand; and you could see the undercurrent, as Mr. Berry described it, the undercurrent that was going on as this defendant wastestifying.” (11 RT 1337.) The prosecutor returned to this theory later in her argument, this time linking appellant’s demeanor while testifying even moredirectly to his guilt: When you saw the defendanttestify yesterday, after he was getting more and more upset because he couldn’t answer the questions that were asked ofhim, he wanted to explain everything under the sun, other than answering the question that was asked ofhim, you began to see what Wilson Berry wastalking about. There is an undercurrent flowing in this man, and whenheis disrespected he gets very violent. When he got violent in this case, he murdered two people and he did it in a very, very personal and rageous[sic] kind of way. (11 RT 1349.) In Mar, this Court found the unjustified use of a stun belt prejudicial under the Watson standardin light of “the relative closeness of the evidence, the crucial nature of defendant's demeanor whiletestifying, and the likelihood that the stun belt had at least some effect on defendant's demeanorwhiletestifying.” (People v. Mar, supra, 28 Cal.4th at p. 1225.) All those factors and one more — the prosecutor’s persistent focus on appellant’s demeanorandcredibility — are present in this case. Given these circumstances, the State cannotcarry its burden of showingthe guilty verdict was harmless beyond a reasonable doubt, i.e., “surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S.at p. 279.) Similarly, in light of these factors, there is a reasonable probability that — or at least a serious doubt as to whether — the error affected the outcomeof appellant’s 70 trial. (People v. Watson, supra, 46 Cal.2d at 835-837.) Accordingly, appellant’s convictions and sentence of death must be reversed. H Hf 71 Il THE ERRONEOUS ADMISSION OF THE PROSECUTION'S INCOMPETENT AND IRRELEVANT EXPERT TESTIMONY ABOUT GANGS IMPERMISSIBLY BOLSTERED THE PROSECUTION'S THEORY OF THE CASE AND DENIED APPELLANTA FAIR TRIAL The prosecution wasallowedto bolster its case through the testimony oftwo expert witnesses, drug dealer Wilson Berry andpolice sergeant Richard Valdemar. They provided irrelevant and inflammatory testimony about the violent conduct of gang members and appellant’s alleged gang association with the Mexican Mafia. In fact, appellant did not belong to the Mexican Mafia, andhis association with the 18th Street gang was immaterial. The testimony served no legitimate evidentiary purpose but biased the jury against appellant by demonizing him and erroneously allowed the experts to give their seal of approval to the prosecution’s theory of the case. The ostensible purpose of each witness wasto offer the expert opinion that when drugsare stolen from a gang member, hewill retaliate violently against whoeverstole the drugs. This testimony should have been excluded for four reasons: (1) the evidence wasnot the proper province of an expert opinion,as it is a commonly understood fact that gang members and other drug dealers mayretaliate and seek revenge for the theft of drugs; (2) the evidence wasirrelevant, as it did not tend to prove any material fact at issue in the case; (3) Wilson Berry was incompetentto testify as an expert witness; and (4) even if otherwise admissible, the evidence was cumulative and was far more prejudicial than probative. The admission of the expert opinions about gangs violated state evidentiary rules as well as appellant's rights to due process, a fair trial, and 72 a reliable determination of guilt and penalty as guaranteed by the Sixth, Eighth, and Fourteenth Amendments ofthe United States Constitution and article I, sections 15 and 17 ofthe California Constitution. Given the paucity of evidence of appellant’s guilt and the inflammatory nature of the gang evidence,its admission wasprejudicial and requires reversal of appellant's first degree murder convictions, special circumstance finding and death sentence. A. Proceedings Below The prosecution filed a motion in limine for the admission of gang evidence through an expert, arguing that the gang expert testimony would be relevantto: explain the defendant's allegiance to the 18th Street gang and his responsibility as a gang-memberfor the cocaine... An expert wouldtestify that it is common in the gang-drug culture to kill over the loss of narcotics. Further, an expert witness can testify to Becerra's motive for threatening, assaulting, and murdering hotel residents. A gang expert will enlighten the jurors to the consequences the defendant faces for losing the drugs, such as death or severe bodily harm. (X CT 2814.)'” At the hearing on the motion, the prosecutor noted that the jury wascertain to know ofappellant’s gang affiliation, as his admission to the assault on George McPhersonreferred to his gang membership. (5 RT 528.) The defense did not dispute this assertion. Defense counsel objected to the introduction of the gang expert evidence, arguing (1) that the evidence wasnotrelevant; (2) that although appellant was an admitted gang memberofthe 18th Street gang, there was '7 The prosecution’s motionalso proffered that the gang expert’s testimony was “admissible to show the effect of intimidation upon a witness” (X CT 2815-2816); however, no such evidence wasever offered through the expert attrial. 73 no evidence linking gangs to appellant’s possession or sale of narcotics, so that the introduction of the gang experts’ testimony was highly speculative; and (3) that even if the evidence had some minimalrelevance,its introduction would violate Evidence Codesection 352. (5 RT 527, 530.)'8 Defense counsel emphasizedthat proof of the prosecution’s case did not rely on any evidencerelating to gang membership, andthatthe government’s use of gang expert testimony was simply a ploy to bias the jury against appellant. (5 RT 526.) He repeatedly asserted that gang evidence “is not importantfor the people’s case, and the only reason why the people would bebringingit in is for the prejudicial effect that it would have.” (5 RT 527, 531.)” The prosecutor did not dispute that appellant’s alleged motive for the murders existed independent of the gang evidence, but argued that “the connection of the gangs, it makes the motive even strongerthat he has someone to answer to. He’s got the gang to answerto.” (5 RT 528.) The prosecutordisputed that there wasnot sufficient evidence linking gangsto appellant’s drugs, arguing that appellant’s statement to Donna Meekeythat he got his drugs “from the mafia” showed a gang connection. (5 RT 528, 531.) Thetrial court ruled that because appellant was an admitted gang member, gang evidence was admissible: 18 The defense did notfile written opposition to the motion for introduction of gang evidence. 19 Thetrial court echoed the defense view that the gang evidence was not important to the prosecution’s case in comments madeafter the close of the prosecution’s case-in-chief. In overruling a defense objection, the court stated: “I think it goes to the bottom ofthe case. He admitted taking cocaine; cocaineis taken from him; two people are dead.” (10 RT 1228.) 74 I think the gang expert can testify. I think if you belong to a gang, you dress like a gang member,you actlike a gang member, you intimidate like.a gang member, you use homeboyslike gang members,ifyou have tattoos like a gang member,ifyou sell dope like a gang member, youare a gang member. . . It is not a major thing for this court. The appellate court, the Supreme Court, feels the same wayI do. (5 RT 533.) Thetrial court then ruled that the gang experts would be limited to testimony regarding the use ofintimidation to effectuate the return oflost drugs and prohibited the prosecution from introducing evidence regarding gang violence generally. Thetrial court explainedits The testimony can belimited to the fact if someoneis selling dope, how theygetit back. I think they can do that. Whether violence is involved,that is a different thing. Intimidationis certainly circumstantial evidence of gang membership. Ifyou lose dope, to get it back you use muscle. I don't think it is unique, different. Every juror would probably know aboutit. Theyare entitled to a gang expert to talk about that, not gangs killing everybody or drive-by shootings. That will be limited to that. Understand? (5 RT 533-534.) The prosecution offered two gang experts, Wilson Berry and Richard Valdemar. As already discussed, Wilson Berry wasa resident of the Pacific GrandHotel in Decemberof 1994. (8 RT 969.) Hehad been using and selling drugs for a long time, although the extent of his experience as a drug dealer was not established. (8 RT 970.) Nor was there any proffer that Berry ever had belonged to a gang. Over defense objection, the prosecution sought and was allowedto have Berry testify as an expert “on the world of the dope seller, pusher.” (8 RT 985.)”° *0 Although no specific proffer was madeasto the scope of Berry’s (continued...) 75 Berry testified that a drug dealer is disrespected wheneverhe loses his drugs. He explainedthat as a drug dealer, “you have to do something to stay in business. You haveto basically do something to them. You have to influence them, make an example out ofthem or influence them notto doit or influence everyoneelse not to do what they did.” (9 RT 986.) The prosecutorthen shifted her inquiry and asked Berry’s opinion about gang involvementin drugsales: Q: You’ve been around a long time. Ifa dopeseller gets a whole bunch of dope from his gang, how are things handled? A: You know,youeither — you lie to them in order to get it. If you take — ifyou get their dopeto sell and makea profit and you go out and youparty with it, then you lie to them, youlie to your homeys, you just lie, and so that makesit bad. Then ontop ofthat if you loseit, if you lie again and say that someonetookit from you, then they are going to exert pressure on youto either get it back, or, if someonetookit, they want to know whydidn’t you do anything to the person that took if from you. Q: And so what do you haveto do then? A: You haveto basically either do something to the person that took it from you or they're going to do something to you. (8 RT 987.) Sergeant Richard Valdemar testified as the prosecution’s main gang expert witness.” In establishing Sgt. Valdemar’s expertise, the jury heard 20_..continued) expertise, the foundational questions wereall directed at Berry’s experience regarding the way that drugs are bought and sold on the street. The lack of proffer was complicated by the fact that the trial court laid the foundation for Berry to testify as an expert. (8 RT 986-987.) 21 The defense renewedits objection to Valdemar’s testimony prior to its commencement. (8 RT 1001.) 76 of his 27-year tenure with the Los Angeles Sheriff's Department (8 RT 1001); his extensive experience working on gangrelated issues as a young adult growing up in East Los Angeles before he joined the Sheriff's Departmentas well as during his tenure at the Sheriff's Department (8 RT 1002-1003); his current assignmentas the supervisor of the unit which was responsible for disrupting the criminalactivities of the four major prison gangs in the Los Angeles area (8 RT 1001-1002); his extensive experience lecturing to various law enforcement agencies about gangrelated issues (8 RT 1002); and his prior qualification as an expert witness before the grand jury and numerouscourts, including the federal court (8 RT 1005). Finally, Sgt. Valdemar testified that as part of his duties as the supervisor of the Prison Gang Section, he received regular updates from informants as well as law enforcementofficers regarding both street and prison gangs and the relationship between the two. (8 RT 1006.) Sgt. Valdemar testified that he knew appellant to be a memberofthe 18th Street gang based on review ofappellant's statements as recorded on his jail classification card and byhis tattoos. (8 RT 1015, 1016.)” Sgt. Valdemar described the 18th Street gang as a huge, multi-state and multi-national gang that is involved in drug dealing and has narcotics operations linked to the Mexican Mafia. (8 RT 1013.) Sgt. Valdemar opined that appellant himselfwas aligned andaffiliated with the Mexican Mafia, based on the “SUR”tattooed on appellant's leg. (8 RT 1018, 1031.) 2 Appellant’s tattoos were displayedto the jury in photographs. (8 RT 1016.) 3 Set. Valdemar testified that “Sur is the Spanish pronunciation for South.” (8 RT 1016.) 77 Sgt. Valedmar described the Mexican Mafia as “the worst ofthe worst and they are often violent, andretribution is a common factor. And often that retribution and violenceis overkill.” (8 RT 1018.) Sgt. Valdemar testified that the Mexican Mafia is a small gang, with only a few hundred members whoall have one rank. (Jbid.) All of the Mexican Mafia associates, like appellant, are “loyal soldiers” for the gang. (/bid.) “When a person prominently marks themselves with SUR,indicating that they are aligned to the Mexican Mafia, they are in fact identifying with that group and saying, ‘I am a loyal soldier.’” (Jbid.) Throughouthis testimony, Sgt. Valdemar repeatedly discussed the Mexican Mafia's incredibly violent potential. (8 RT 1018, 1019, 1023, 1029, 1036, 1037.) He emphasized the long reach of the Mexican Mafia in exacting revenge andretaliating for perceived acts of disrespect, and he told the jury that the punishing arm ofthe Mexican Mafia could even reach as far as the courtroom proceedings. (8 RT 1029.) In explaining the danger of falsely claiming status as an associate of the Mexican Mafia, Sgt. Valdemar stated: [t]hat would be very dangerousto imply that you have somepart in the Mexican Mafia and that becamepart of a court record and that cameto the attention ofpeople who wereactually part of the Mexican Mafia. That could belethal. (Ibid.) Valdemar opinedthat “disrespecting the Mexican Mafia is normally a death sentence.” (8 RT 1018.) Sgt. Valdemar asserted that violent sexual conduct is often used by the Mexican Mafia as a meansto retaliate. Sgt. Valdemar referred to the movie American Me (Universal Pictures 1992) as accurately depicting the Mexican Mafia's practice ofusing sexual humiliation as a form of retaliation, describing how various characters were raped and, in one instance, how a character was murdered. (8 RT 1019.) Sgt. Valdemar also 78 noted that the Mexican Mafia wasso insulted by their portrayal in the movie that “they put out a hit contract on people who were associated as advisors in that movie, and,in fact, killed three of them.” (/bid.) Sgt. Valdemar testified that all gangs are involved in drug trade and that some, such as the Mexican Mafia, support their organization through their drug sales. (8 RT 1007.) According to Sgt. Valdemar, a gang member might be entrusted to receive a large quantity of drugs from his gangtosell. (8 RT 1008.) However, if a gang memberloses drugs that have been fronted by the gang, that person would be under suspicion and would have to work hard to provethat the drugs in fact had been lost or stolen. (8 RT 1009.) Ifthe gang believed the drugs had beenlost or stolen from the gang member, “that would mean that that person had been foolish and disrespected by the person who took that drug and he, as a gangster, would haveto retaliate or at least make some kind of face saving move to show that he wasnot irresponsible with the drugs.” (8 RT 1009.) Ifa large quantity of drugs had beenstolen, “then the person would have to take some kind of a face-saving action, and in the gang world that primarily means killing someone.” (8 RT 1010.) The prosecutor and Sgt. Valdemar then had the following colloquy: Q: Would the manner in which the person — you’ve got a drug seller who’s lost or some of his dope has been stolen and he believes he knows whodid it. If he wanted to save face by killing the other individual, would the method of killing have an impact on his saving face in front of the gang? A: Yes, Ma’am. Mr. Taylor: I am going to object, your honor, speculation. The Court: Overruled. The Witness: The person would be expected to make an example of a person whodisrespected them in that manner. And by “make an example” I mean that the methodofkilling 79 would be particularly heinousso asto terrorize otherstreet gang members and prevent anything like that happening again. (8 RT 1010-1011.) B. The Testimony Of Gang Experts Berry And Valdemar WasNot The Proper Province OfAn Expert Witness The prosecution sought to introduce testimony from expert witnesses that a gang memberwill exact revenge against someone whotakes their drugs, both to retaliate for the theft and to preserve their reputation. Using violence as a meansto exact revengeis not an aspect of gang culture or practice that is so far removed from commonexperiencethat it requires an expert opinion. Oneneedsnospecialtraining or experience to understand violent revenge.”* The prosecution’s theory of appellant’s actions — an age-old tale of retaliation and revenge — was simply not a matter beyondthe common knowledgeofthe jury which required expert testimonyto renderit “comprehensible and logical.” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.) Because the conclusions to which both Berry and Valdemar testified could have beenreachedjustas intelligently by a lay person as by an expert, the introduction of this improper opinion testimony waserror. Opinion testimony is generally inadmissible at trial (Evid. Code, §§ 702, 800, 801; People v. Chapple (2006) 138 Cal.App.4th 540, 546), and its admission is reviewed for an abuseofdiscretion (People v. Guerra (2006) 37 Cal.4th 1067, 1118). An expert witness may give an opinion on a matter if the expert possesses “special knowledge, skill, experience, [or] training” (Evid. Code, § 801, subd. (b)), andifthe subject matter about 4 Revengefor real or perceived disrespect and wrongs is the major theme in manyofthe significant stories of the Western Canon. The Iliad, Hamlet, Othello, Moby Dick, the Cask ofAmontillado areall stories ultimately about revenge. 80 whichthe expert testifies is one in whichthe trier of fact could not reach the inferences and conclusions testified to by the expert. (People v. Cole (1956) 47 Cal.2d 99, 103 [testimony that woundcould not have beenself- inflicted was proper subject of expert testimony]; People v. McAlpin (1991) 53 Cal.3d 1289, 1299 [expert testimony regarding child abuse accommodation syndrome wasproperly admitted to disabuse jurors of commonly held misconceptions about child sexual abuse and to explain delays in reporting of molestation].) The testimony of an expert regarding the culture and habits of street gangs may meet this criterion in somecases. (People v. Gardeley (1997) 14 Cal.4th 605, 618.) However, testimony by a gang expert may be admitted only when the expert testifies to matters that are beyond the commonexperience ofthe jury. (/bid.; see People v. Torres (1995) 33 Cal.App.4th 37, 47 [opinion testimony of gang expert was inadmissible because it would notassistthetrier of fact].) The testimony of Wilson Berry and Sgt. Valdemar did not meet this essential prerequisite. Berry first testified, over defense objection, that dope dealers generally are “almost duty bound”to do something physical to someone whotakes their dope. (8 RT 974-975.) Hethentestified that if a dope dealer gets his dope from a gang, “you haveto basically either do something to the person that took it from you or they're going to do something to you.” (8 RT 987.) The focus of Sgt. Valdemar's testimony was on the need for a gang membertoretaliate violently when heis disrespected, and the needfor a particularly heinous revenge when a gang memberhas been fronted drugs by the Mexican Mafia which were then stolen. (8 RT 1010.) Noneofthis testimony wassufficiently beyond common knowledge and experience suchthat the opinion of an expert wouldassist the jury. (People v. Guerra (2006) 37 Cal.4th 1067, 1118.) Thetrial court's ruling and Sgt. Valdemar's testimony themselves 81 demonstrate that the expert testimony did not address matters beyond the common knowledgeofthe jury. First, the court itself noted in its initial ruling on the admissibility ofthe gang expert testimony “[i]fyou lose dope, to get it back you use muscle. I don't think it is unique, different. Every juror would probably know aboutit.” (5 RT 533.) Since the trial court found that every juror would know that gangs use intimidation to regain lost or stolen drugs, there was no basis for the admission of Berry's and Valdemar's expert testimony on the subject. (People v. Cole, supra, 47 Cal.2d at p. 103 [expert testimony is prohibited when “the subject of the inquiry is one of such common knowledgethat [people] of ordinary education could reach a conclusionas intelligently as the witness”].) Second, Sgt. Valdemar’sreliance on a popular movie, American Me, confirmsthat his testimony did not address someesoteric subject that the jury could not understand on its own. A fact or phenomenonthatis part of mainstream culture is within the jury’s common knowledge, and an expert’s opinion is not necessary. (Carey v. Lima, Salmon and rully Mortuary (1959) 168 Cal.App.2d 42, 46 [expert testimony properly excluded where jury had sufficient knowledge to reach conclusion on ultimate fact without aid of expert opinion].) As Sgt. Valdemar's own references to American Memakeclear, his expert testimony added nothing to the jury’s “common fund of information” about the propensity of gangs to react violently and to humiliate their victims when they are disrespected, and should have been excluded. (People v. McAlpin, supra, 53 Cal.3d at p. 1299.) Although expert testimony on the culture and habits of criminal street gangs sometimes may bea propersubject for expert testimony (People v. Gardeley, supra, 14 Cal.4th at p. 618), this Court has long held that “[t]he determinative issue in each case must be whether the witness has sufficient skill or experiencein the field so that his testimony would be 82 likely to assist the jury in the search for the truth, and no hard andfast rule can be laid down which would be applicable in every circumstance.” (Brown v. Colm (1974) 11 Cal.3d 639, 645.) Thus, there is no rule of automatic admissibility that permits expert opinions about gangs to be introduced in any case involving a gang member. Instead, the gang expert must be necessary to “make [] comprehensible andlogical that whichis otherwise inexplicable and incredible.” (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1551 [gang expert’s testimony was admissible in attempted murder case to explain intent behind inmate’s unprovokedattack upon nearly naked fellow inmate].) That standard wasnot satisfied here. In cases upholding the admission of expert testimony about gangs, there has been a specific showing ofthe necessity of the expert’s opinion to providecritical information for an inference that was otherwise unfathomableto the jury. For example, in Gardeley, supra, 14 Cal.4th 605, the expert testimony was offered to explain why an assault on an unarmed man who wasurinating in a carport was “gang related activity” under Penal Code section 186.22, former subdivision (c). (/d. at p. 619.) The expert’s testimony explained the economicutility of such assaults to the gang, as they secure the members’ ability to engage in open drug dealing within a certain neighborhood. This information was not commonly known to the jury but rather was the type of specialized knowledge that would help them in deciding the case. The sameholds true for other cases in which expert testimony about gang conducthas been held properly admitted: the expert witnesstestified about someesoteric or generally unknown fact about gangs that was relevant to the case. (See People v. Gonzalez (2006) 38 Cal.4th 932, 945 [expert testimony that a gang wouldretaliate against one of its own members whotestified against a memberofa rival gang was appropriate 83 expert testimony]; People v. Carter (2003) 30 Cal.4th 1166, 1194 [expert testimony was admitted to explain why defendant, as memberofone Crips gang, possessedtheintent to kill a memberofanother Crips gang]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 [expert testimony was admitted to explain the use ofgraffiti by Hispanic gangs to mark territory and that crossing out a rival gang’s graffiti is a sign of encroachment which can result in a violentretaliation]; People v. Gamez (1991) 235 Cal.App.3d 957, 965 [expert testimony was admitted to show that group to which appellant belonged wascriminal street gang engagedin pattern of criminal activity in prosecution under Penal code section 186.22, subdivision (b)]; People v. McDaniels (1980) 107 Cal.App.3d 989, 904 [expert testimony was admitted to explain thatfist fights between rival gang members usually take place at “ mutual”sites such as schools, but if a gang travels to a rival gang’sterritory, more than just a fight would be expected].) Unlike the experts in those cases, Berry’s and Sgt. Valdemar’s opinions — which simply asserted thelikelihood of violent revenge by a gang drug dealer — was not necessary to explain the “inexplicable or incredible.” (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1551.) The motive for the murders offered by the prosecution — that appellant killed Harding and Jacksonin retaliation for the theft of his drugs — waseasily understandable by the jury. The testimony of Berry and Sgt. Valdemar did nothing more than reinforce something the jury already knew — thattheft can lead to revenge and revengecan be violent — and thus amounted to no more than an impermissible assertion of the experts’ opinions that appellant likely committed the crime charged. (See People v. Torres, supra, 35 Cal.App.4th at pp. 47-48 [expert opinions about matters that are not sufficiently beyond commonexperienceare “tantamount to expressing the opinion that defendant was guilty”].) Since the experts’ opinions did not 84 explain the inexplicable and unimaginable, they served no valid evidentiary purpose. Instead, the testimony of Berry and Sgt. Valdemar simply reiterated the prosecution’s theory that appellant killed Harding and Jackson in retaliation for the theft of his drugs — but did so burnishedin the authoritative gloss of expert opinions about gangs. Thetrial court abused its discretion in admitting this evidence. OF The Testimony Of Gang Experts Berry And Valdemar WasNot Relevant To Any Disputed Fact Even assuming, arguendo, the admissibility under Evidence Code section 801 of expert testimony about how a gang member, especially one associated with the Mexican Mafia, wouldretaliate against someone whom he believed hadstolen his drugs, the trial court nonetheless abusedits discretion in admitting the opinions ofBerry and Sgt. Valdemar. Thetrial court failed to determine the relevance of their testimony by “apply[ing] the law to the facts and opinions offered by the witness.” (People y. Killebrew, supra, 103 Cal.App.4th at p. 654.) Instead, the trial court simply reasoned that because appellant was a gang member, a gang expert could testify. (5 RT 533.) Its reasoning was erroneous. Tobe sure, gang expert testimonyis admissible whenit is probative of a material fact about gang habits and practices that is unintelligible to the general population — “concerning territory, retaliation, graffiti, hand signals and dress.” (People v. Valdez (2003) 112 Cal.App.4th 925, 930.) But that does not mean,as thetrial court mistakenly assumed, that a gang expert maytestify in any case involving a gang member. The expert testimonystill must be relevant. In this case it was not. First, the opinions of Berry and Sgt. Valdemar were offered to prove an undisputed fact — that a drug dealer, whether a gang memberor not, mightretaliate violently for the theft of his drugs. Second, there was no competent evidencebefore the jury that the drugs taken from 85 appellant were from a gang, muchless from the Mexican Mafia. Because the expert testimony wasirrelevant, it should have been excluded. To be relevant, a gang expert's testimony, like all evidence, must address some disputed fact. Evidence Code section 210 makesthis requirementclear: “relevant evidence” must have a “tendencyin reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (See People v. Humphrey (1996) 13 Cal.4th 1073, 1076, 1086 [acknowledging that to be admissible expert testimony on battered women’s syndrome mustbe relevant to an issue in the case]; see also People v. Brown (2004) 33 Cal.4th 892 (dis. opn. ofBrown, J.) [expert testimony must meet the requirements of Evidence Code Section 210, and, “unless and until the proponent demonstrates that an expert’s testimony has the requisite relationship to a disputed fact, it is irrelevant and cannotassist the trier of fact.”’].) Berry’s and Sgt. Valdemar’s opinions did notrelate to a disputed fact and, thus, were not relevant. The prosecution's evidencethat a drug dealer, regardless of gangaffiliation, generally will respond violently against someone whosteals his drugs wasnot disputed by the defense. Indeed, appellant admitted as muchin his testimony. (9 RT 1190, 1191; 10 RT 1228, 1265, 1267, 1270.) The defense position was that Harding's taking of appellant's drugs wasnot a typicaltheft from a drug dealer because(1) the drugs were returned (8 RT 1137, 1143); (2) Harding agreedto sell drugs for appellant to make up for those drugs he had used (6 RT 684; 8 RT 1139, 1140, 1158; 10 RT 1285); and (3) appellant himself had stolen the drugs and, thus, was not as concerned abouttheir loss as a drug dealer commonly would be. (10 RT 1245, 1284, 1285.) The general practice of violent retaliation for drug thefts was an unquestioned fact — a non-issue — in this case. Therefore, Berry’s and Sgt. Valdemar’s expert opinions could not be 86 used to prove facts already established by other evidence, including appellant’s own testimony. They did not support any reasonable inference that would provea disputed fact, but rather allowed “unreasonable inferences to be madebythetrier of fact that the defendant was guilty of 299the offense charged on the theory of‘guilt by association.’” (People v. Perez (1981) 114 Cal.App.3d 470, 477 [reversible error to admit expert gang testimony to show that appellant and co-defendant were members of the same gang where appellant had already been identified as one of the perpetrators by an eyewitness].) Because the defense did not dispute the point about retaliation by drug dealers, any reference to gang behavior was irrelevant and should have been excluded. In addition, to be relevant, a gang expert's testimony,like all evidence, must be logically relevantto the factual issues before the jury. (Evid. Code, § 210.) There must be an “evidentiary link” based on the particular facts of the case between the gang evidence andan issueattrial. (People v. Avitia (2005) 127 Cal.App.4th 185, 193 [finding reversible error to admit expert testimony about the gang-related graffiti in the room in which firearms were found where there was no connection between the graffiti and the guns].) This prerequisite for relevance also was missing. Berry’s and Valdemar’s testimony about gangs wasnotlogically probative of the factual issuesat trial. Sgt. Valdemar focused on the violent conduct of the Mexican Mafia andthe likely conduct of a gang member who received his drugs from the Mexican Mafia. (8 RT 1017-1023, 1028-1029, 1036-1037.) Berry's testimony regarding gang practice focused on the likely response of a drug dealer, who had received his drugs from a gang, to the theft of his drugs. (8 RT 986-987.) However, there was no competent evidence before the jury that the Mexican Mafia, or any other gang, had anything to do with the drugsin this case. Without this foundation, the 87 evidence regarding gangs wasentirely irrelevant. The prosecution’s theory was that Donna Meekey provided the proof that appellant got his drugs from the Mexican Mafia. (5 RT 528, 531.) In arguing for the admission of Sgt. Valdemar's testimony, the prosecutor represented that“the defendant specifically tells Donna Meekeythat he gets the drugs from people he knows whoare affiliated with his gang, the Mafia.” (5 RT 531.) However, contrary to the prosecutor's assertions, Meekeydid notclearly testify that appellant got his drugs from the his gang, the Mexican Mafia. Moreover, Meekey’s hedged statements on direct examination attempting to link appellantto a “large organization”are incredible, and clearly the result of the government’s influence on a key witness to provide some connection between the drugs appellant had at the Pacific Grand and his gang membership. According to Meekey, she and appellant were hanging out on Christmas Evein appellant’s hotel room.”” Meekey’s initial description of her interaction with appellant in his room was quite benign: I went to defendant’s room and wekindofsat on the bed and started talking. And again I had reminded him that I’m not sexually active or anything, and he said not to be afraid, that he wasn’t going to hurt me or anything. So he took off his shirt and he had sometattoos on his body. And I asked him what they were. And he said they were some — something to do with a gang or something like that. And wejust started talking. He wastelling me abouthis girlfriends and we were talking about relationships. And basically that’s about — 5 In describing her interaction with appellant while in his room, Meekeytried to include the important factor that she was upset because of the beating she had suffered from Vishaun. This testimony was excluded by the trial court upon the prosecutor’s objection. (5 RT 671.) (See argumentIV,post.) 88 that’s mostofit that evening. (5 RT 671.) Dissatisfied with this completely non-inculpatory response and the sympathetic characterization of appellant contained within it, the prosecutor began prompting Meekey: Q: Now,you knew he had beenin possession ofa lot of drugsright? A: Right. Right. Q: Did you ask him anything aboutthe drugs? A: Yes, well he was smoking an awful lot and he was offering me an awfullot,just givingit, ‘here, you can have this, you can havethat.” And so, you know,I was kind of concemed about, you know, where he wasgettingall the drugs from It was morethan I had ever seen anybody have or smokeor give away. So I was real curious. Andhesaid hegetsa lot of it — he gets quantities and keys and things from a big organization that he is involved with. Q: Okay, and what wasthat organization? A: I don’t recall exactly the name, but he said something about Mafia associated or somethinglikethat. (5 RT 672.) This phrase “mafia associated”is neither clear enough nor sufficient enough to support a reasonable inference that appellant got his drugs from the Mexican Mafia. Moreover, even if this testimony wassufficient to draw a connection between appellant’s drugs and the Mexian Mafia,it is simply not credible. Donna Meekeygave a statement to Inspector Long during the initial investigation of these murders in 1995. (6 RT 680; 8 RT 956, 957.) Nowherein this interview is there any mention of appellant being associated with the Mexican Mafiaorstating that he got his drugs from the Mexican Mafia. (6 RT 721.) It was not until Meekey was questioned by 89 the prosecutor immediately priorto trial that Meeky alleged any “Mafia” references by appellant. (5 RT 531; 6 RT 681.) Appellant denied making any such statement to Meekey. (9 RT 1157.) Inspector Long described Meekeyas a material witness that he personally interviewed and from whom hetook a written statement. (8 RT 956-957.) Meekeyinitially testified that in her 1995 interrogation with Inspector Long she “wasn’t asked that many questions. . . I believeall he asked me mainlyis to identify the victim.” (6 RT 681-682.) In fact, Meekey’soral statement to Inspector Long was memorializedin a three page written statement, in which Meekeydescribed,to the best of her abilities, her interactions and conversations with appellant. (6RT 711.) Although under prompting from the prosecutor Meekeytestified that, in her subsequent conversations with the prosecutor, she was asked many questions not asked by Inspector Long (6 RT 712), she repeatedlytestified that she did not remember what questions Long asked her. (6 RT 710, 721.) Meckey’stestimony simply does notprovide a sufficient evidentiary link to show that the drugs taken from appellant in December 1994 were provided to him by a gang, muchless by the Mexican Mafia. Withoutthis link, the testimony regarding gang custom andpractice when drugsare stolen, particularly the custom and practice of the Mexican Mafia whenits drugsare stolen, wasirrelevant. (Cf. People v. Champion (1995) 9 Cal.4th 879, 921-922 [appellant’s gang membershipis “a significant evidentiary link in the chain ofproof’ andis not irrelevant when substantial evidence was offered to show that members of appellant’s gang were involvedin the charged murders and appellant's gang membership provides meaning to a tape recorded conversation between the co-defendants].) Lacking the properfactual foundation, there was no reasonedinference the jury could draw from the expert gang testimony and thus nobasis for its admission. 90 The decision in People v. Avitia, supra, 127 Cal.App.4th 185, supports the finding of error here. Avitia was charged with discharging a firearm in a grossly negligent manner (§ 246.3), possession of an assault weapon(§ 12280, subd. (a)(2)), and possession of a firearm by a misdemeanant (§ 12021, subd. (c)(1)). The police arrested Avitia after a neighboridentified him as the person who had been shooting a gun in the backyard. (/d. at p. 187.) Police searched Avitia’s house and discovered firearms and ammunition in his bedroom. (dd.at p. 188.) The weapons found in the room includeda pellet pistol, numerous handguns, a 12-gauge shotgun, and an assault rifle. (/d. at pp. 188-189.) “Chivo” was tatooed on Avitia’s left hand and wasalso written on various items in the room, including a box of ammunition and the butt of an assaultrifle found in the room. (id.at p. 188.) At trial, Avitia testified that he had been firing the pellet gun, which wasnotillegal, rather than the handgun priorto thearrival ofthe police. (/d. at p. 190.) He also admitted to ownership ofthe assault rifle, but testified that he had purchasedit in 1999, when such weapons werelegal, and believed that it was registered at the time he purchasedit. (Ibid.) Over defense objection, the prosecution was allowedto introduce expert testimony that graffiti on the posters in Avitia’s room was gang graffiti, under the theory that this evidence “tendedto link the firearmsto Avitia.” (/d. at pp. 191-192, 193.) The appellate court reasoned that even if the gang evidence did provide somelink between the weapons and Avitia, admission ofthis evidence wasin error because appellant’s ownership of the weapons was not in dispute. (People v. Avitia, supra, 127 Cal.App.4th at p. 193.) Given “the absence of dispute [that] the weapons were Avitia’s, admission ofthe graffiti evidence lacked any probative value.” As in Avitia, the trial court in this case abusedits discretion because the issue was undisputed and the 91 proffered gang expert testimony had no tendency in reason to prove a matter of consequenceto the case. D. Wilson Berry Was Incompetent To Testify As A Gang Expert Even assuming, arguendo,that expert testimony about gangs was properandrelevant, the trial court abused its discretion in admitting Berry's testimony because there was no proofofhis qualifications as a gang expert. Wilson Berry initially was asked by the prosecution to give an opinion on whata drug dealer would do to someone whotook his drugs. Thetrial court reasoned that Berry was a “quasi-expert” and allowed Berry's opinion testimony that a drug dealer “was duty bound to do something physical.” (8 RT 975.) Atthe close of Berry's direct testimony, the prosecutor again attempted to elicit Berry's opinion on “the way things work out on the streets with regard to the way drugs are bought and sold.” (8 RT 985.) After defense counsel objectedto eliciting opinion testimony from the witness regarding the habits and practices of drug sellers and gang members, the trial court proceeded to lay a foundation as to Berry's expertise: The Court: You live on the streets primarily? The Witness: Yeah. The Court: You sell dope, buy dope there? The Witness: Yes. The Court: You knowthe world of the dope seller, pusher, user, what happens — 6 There is no designation of “quasi-expert” testimony under Evidence Code section 801. A witness may only give opinion testimony based on specialized training and/or experienceifthe witness has been qualified as an expert pursuantto the statutory scheme. (People v. Williams (1992) 3 Cal.App.4th 130, 133-135.) 92 The Witness: Yes. The Court: — If you are involved in something? The Witness: Yes. (8 RT 985-986.) Based on this voir dire, the trial court overruled the defense objection to Berry's expert opinion testimony. (8 RT 986.) Its ruling wasin error. Whena party objects to the admission of opinion evidence from a proposed expert witness, the proponentofthe expert testimony must establish that the witness possesses “special knowledge, skill, experience, training or education sufficient to qualify him as an expert.” (Evid. Code, § 720, subd. (a).) The expert witness must be qualified on “the particular subject upon whichheis giving testimony. Qualifications on a related subject matter are insufficient.” (People v. Hogan (1982) 31 Cal.3d 815, 852-853 [criminalist who was qualified to testify about blood typing was not qualified to testify regarding blood spatter evidence where he had no formal training or experiencein the subject and his qualifications were limited to having read one bookyearsearlier, observed one discarded blood spatter exhibit, and seen bloodstains at crime scenes], overruled on other grounds, People v. Cooper (1991) 53 Cal.3d 771.) Noting the “increasingly important” role of expert evidence in modern litigation, one appellate court hasruled that “courts have an obligation to contain expert testimony within the area of proffered expertise, and to require adequate foundation for the opinion.” (Korsak v. Atlas Hotels (1992) 2 Cal.App.4th 1516, 1523; see, Miller v. Los Angeles County Flood Control District (1973) 8 Cal.3d 689, 701 [a mechanical engineer with training in hydraulics, hydrology and in evaluating flooding characteristics in hillside areas was not qualified to testify about the standard of care for the design ofhillside residence].) The prosecutor asked Berry to express an opinion on what a “dope 93 dealer” would doifhe lost drugs that had been given to him by a gang. (9 RT 987.) Berry opinedthat “they are going to exert pressure on you to either get it back, or, if someonetook it, they want to know whydidn't you do anything to the person that tookiffrom you . . . You haveto basically either do something to the person that tookit from you or they’re going to do something to you.” (9 RT 987.) Althoughthe trial court's voir dire arguably established Berry’s expertise to testify to the habits and culture of the “dopeseller, pusher, user,” there was nothing in Berry’s testimony demonstrating that he had any expert qualifications relating to the habits and culture of gang members. Indeed, Berry’s testimony is devoid of any mention of gangs until he is asked to give an opinion on gang practices. (See 8 RT 968-987.) The prosecution completely failed to carry its burden of establishing Berry's qualifications as an expert on the habits and culture of gang members. There is no mention of any knowledge, training, education or even personal experience that might have allowed Berry to give an expert opinion regarding gang practices. The introduction of Berry's expert testimony regarding how gang members behavewasclearly outside the realm of whatever expertise he may have had about drugsales, and there was no additional expertise shown regarding Berry’s knowledge of gangs that would have rendered this opinion admissible. In short, the record presents no factual basis for designating Berry as an expert on any aspect of gangs. (Cf. People v. Chavez (1985) 39 Cal.3d 823, 828-829 [although the questionis “not entirely free from doubt,”trial court’s admission of a pathologist’s expert opinion ontheeffect of alcohol on a person's ability to form requisite intent for robbery was not an abuse ofdiscretion because the witness, a medical doctor, knew the medical literature on alcohol andits effect].) Because there was no showing that Berry possessed even minimal 94 knowledge, let alone expertise, about gang culture andpractices, the trial court abusedits discretion in permitting him to testify as an expert, and his testimony about gangs should have been excluded. E. The Testimony OfGang Experts Berry And Valdemar Was Cumulative And Far More Prejudicial Than Probative Even assuming, arguendo,that the gang testimony of Berry andSgt. Valdemar wasproper and relevant and that Berry was competentto testify as an expert witness, their testimonystill should have been excluded becauseit was cumulative of other, less prejudicial evidence,andits prejudicial impact far outweighedits probative value. The introduction of this cumulative and emotionally-charged evidence permeated the case against appellant, in which the verdict likely reflected the jury’s fear of gang membersrather than an abiding conviction of appellant’s guilt beyond a reasonable doubt. Courts repeatedly have founderrorin the introduction of gang expert testimony that is cumulative of other, less prejudicial evidence. “The prosecution hasno right to present cumulative evidence which creates a substantial danger ofundue prejudice to the defendant.” (People v. Cardenas (1982) 31 Cal.3d 897, 905 [error to admit evidence of gang membership to show possible bias of defense witnesses when a close connection between defendant and witnesses had already been established through other, less prejudicial evidence]; see People v. Avitia, supra, 127 Cal.App.4th at pp. 193-194 [error to admit evidence of gang graffiti in defendant’s room to establish connection between defendant and guns where other evidencealready established that guns belonged to defendant]; People v. Maestas (1993) 20 Cal.App.4th 1482, 1495 [when evidence already established close affinity between defendant and a witness, 95 admitting evidence ofgang membership to establish a relationship between the two wasreversible error]; People v. Munoz (1984) 157 Cal.App.3d 999, 1013 [evidence of gangaffiliation was cumulative, and should not have been admitted].) In this case, the prosecution offered the gang evidenceostensibly to show motive — that appellant killed Harding and Jackson because gang membersreact violently when their drugs are stolen. Gang evidence, however, is only admissible to show motive when such evidenceis not only relevant, but is also necessary. (People v. Beyea (1974) 38 Cal.App.3d 176, 195 [proof of defendant’s membership in the Hell’s Angels was admissible as it was relevant to prove motive and was material and necessary]; People v. Carter (2003) 30 Cal.4th 1166, 1194 [introduction of gang expert testimony to show defendantpossessed an intent to kill was not erroneous as it was not cumulative of evidence introduced to show motive or other intent].) The gang experts were not necessary here. As discussed ante in section C of this argument, the evidence presented attrial established that appellant was a drug dealer, and that drug dealers respondviolently to the theft of their drugs. The expert testimony regarding a gang member'slikely violent responseto the theft of drugs was cumulative of this other, probative andless prejudicial evidence and,therefore, should have been excluded. In addition, the gang expert testimony should have been excluded pursuantto the defense objection under Evidence Code Section 352, because it was “evidenceoflittle evidentiary impact” that “evoke[d] an emotionalbias.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370.) Gang evidence, especially graphic and detailed evidence like that offered by Sgt. Valdemar, exacerbates the jury’s natural fear of gangs. It also risks conviction based solely on the jury’s perception that the defendant has a criminal disposition. (People v. Cardenas, supra, 31 Cal.3d at p. 904; 96 People v. Carter, supra, 30 Cal.4th at p. 1194.) As this Court has plainly stated, “[i]n cases not involving the gang enhancement, we haveheld that evidence of gang membershipis potentially prejudicial and should not be admitted if its probative value is minimal.” (People v. Hernandez, (2004) 33 Cal.4th 1040, 1049.) This Court also has specifically “condemned the introduction of evidence of gang membership if only tangentially relevant, given its highly inflammatory impact.” (People v. Cox (1991) 53 Cal.3d 618, 660.) Thus, gang evidence, even whenrelevant, must be carefully scrutinized before it is admitted. (People v. Avitia, supra, 127 Cal.App.4th at p. 192.) In this case, the gang evidence hadlittle probative value becauseit focused on the conduct ofthe Mexican Mafia — a gang to which it was undisputed that appellant did not belong. (8 RT 1031.) The prosecution’s theory, supported solely by Sgt. Valdemar’s testimony, was that appellant's status as a Sureno made him an associate of the Mexican Mafia; based on this assertion, the trial court allowed extensive evidence about the Mexican Mafia. (8 RT 1032, 1035.) However, there are over 500 Sureno gangs in ~ California alone,”’ and, by Sgt. Valdemar’s ownestimate, the Mexican Mafia is a small gang comprised of about 250-400 members, most ofwhom are in California prisons. (8 RT 1017.) Although there may be some affiliation between the Surenos and the Mexican Mafia, the link established between appellant and the Mexican Mafia was simply too tenuous, and thus oftoo little evidentiary value, to support the admission of Sgt. Valdemar’s 27 See discussion of Sureno gangsat http-//www.streetgangs.com/ hispanic/ 97 prejudicial testimony about the Mexican Mafia.” In effect, the prosecution was permitted to bootstrap appellant’s irrelevant membership in the 18th Street gang, which itselfwas prejudicial, into exceedingly inflammatory expert testimony about the much more powerful and dangerous Mexican Mafia. The introductionofthis highly prejudicial testimony based on this extremely loose connection was an abuse ofdiscretion which allowedthe jury to convict appellant based on speculation abouthis alleged association with the Mexican Mafiaandits reputation for violence rather than on actual proof of appellant’s actions. (See People v. Ayala (2000) 23 Cal.4th 225, 276-277 [noting with approval efforts oftrial court to exclude references to the “Mexican Mafia” from witness’ testimony, given the inflammatory andprejudicial effect of such references].) There can be no question that the gang expert testimony, especially Sgt. Valdemar's opinions about the Mexican Mafia, was extremely prejudicial. Valdemar described appellantas a “loyal soldier” of the Mexican Mafia (8 RT 1017), and went on to describe in vivid detail the extreme violence of the Mexican Mafia as follows: ° People affiliated with the Mexican Mafia “are the worst of the worst and they are very violent, and retribution is a common factor. And often that retribution and violence is overkill” (8 28 Moreover, the link between Surenos and the Mexican Mafiais far more tenuous than presented by Sgt. Valdemar’s testimony. According to the DepartmentofJustice, “hundreds of Hispanic gangs identify with the — Surefio philosophy and use the number13aspart of their gang’ identifiers. The presence of the number 13 does not necessarily indicate affiliation with the Mexican Mafia. Claiming Sureno merely indicates that the gang resides or originated in southern California; in some cases the gang may not be from southern California but simply identifies with the Sureno gangstyle.” http://www. ojp.usdoj.gov/BJA/what/2005_threat_assesment.pdf 98 RT 1018); The Mexican Mafiais driven by a warrior culture of masculinity and machismo(8 RT 1019); Disrespecting the Mexican Mafia is normally a death sentence (8 RT 1018); The Mexican Mafia put out hit contracts and killed three people associated with the making ofthe film American Me because it was disrespectful to the gang (8 RT 1019); “[I]t could belethal” to say something in a court proceeding that the Mexican Mafia found disrespectful (RT 1029); The Mexican Mafia will kill someone within minutes who they perceive to be improperly claiming to be part of the gang (RT 1036-1037); Sexual humiliation and degradation, including anal rape, are retaliatory tools used by the Mexican Mafia (8 RT 1019); The more gruesomea killing is, the morelikely it is to satisfy the Mexican Mafia (8 RT 1022). In a further attempt to focus the jury on the violent nature of the Mexican Mafia, Sgt. Valdemar relied on the representation of the Mexican Mafia in the movie American Me. (RT 1019.) The referenceto this chilling portrayal of the Mexican Mafia servedto divert the jury's attention away from the facts of the case, and gave the imprimatur of authority toa — fictionalized account of the Mexican Mafia which interjected fearful, offensive and wholly extraneous considerations into the determination of whether appellant was guilty or not guilty. Relying on this expert testimony, the prosecution made appellant's gang membership the cornerstone upon whichit built its case against him. In her summation of the evidence, the prosecutor led off with appellant's 99 gang membership (10 RT 1336, 1338) and then quickly movedto his association with the Mexican Mafia, relying on Sgt. Valdemar's expert opinion to describe the Mexian Mafiaas “a big overseer” for gang members' drug sales in downtown Los Angeles. (10 RT 1338.) The prosecutor described the import of Berry's testimonyastelling the jury “what really goes on” and as “the heart of the case.” (10 RT 1339, 1340.) She arguedthat the veracity and weight ofthe gang experts’ testimony was enhancedbecause each corroborated the other. (10 RT 1339, 1341.) In explaining the essence ofher case, the prosecutor highlighted appellant’s gang membership: “whatthis all boils down toin this caseis that this defendant, a long-time gang member,felt disrespected.” (10 RT 1339.) However, as a review ofthe evidence andthe prosecutor's own argument makes manifest, gang membership wasnotfactually critical to the prosecution's case. Both Berry and Vashaun testified that drug dealers will retaliate with violence against someone whosteals their drugs. (6 RT 758-759; see ante section C of this argument.) The prosecutor also argued that drug dealers, regardless of gangaffiliation, react violently to the theft of drugs. Shetold the jury, “As now all of you know . . . when someone's cocaine is taken from them in this mannerthere are repercussions, people are disrespected, and there are results. There are killings that happen.” (10 RT 1340.) She further asserted, “Drug sellers do not just let drugs get lost. There has to be, according to these people, some wayto control that. And the way they controlit is by doing something physical.” (10 RT 1342.) As the prosecutor’s argument itself shows, the prosecution could have presented its case that appellant had a motive to kill Harding without any reference to gangaffiliation or gang conduct. Butit did not. Instead, the prosecutor infused the case with the Mexican Mafia. Sgt. Valdemar testified repeatedly about the violent conduct ofthe Mexican 100 Mafia, and the intensity and rapidity of the Mexican Mafia’sviolence if they perceive they are being disrespected. (8 RT 1018, 1019, 1022, 1028, 1029, 1036.) The relevance of this testimony, if any, was minimal and remote. Nevertheless, the prosecutor pumped her case against appellant with the fear and loathing of the Mexican Mafia, arguing that the killing of Harding and Jackson was fueled by appellant’s anger at being disrespected which, according to her gang experts, arose from a code of conduct and propensity for violence based on his purported but unprovenlink to the Mexican Mafia. As one court noted long ago, “we must recognize that the prejudicial effect of inadmissible gang membership evidencelies in its tendency to suggest that a defendantis the type ofperson predisposed to commit violent acts of the type engagedin by the gang to which he belongs.” (People v. Luparello (1986) 187 Cal.App.3d 410, 426.) That was precisely the message delivered by the gang experts, and underscored by the prosecutor, here. They damnedappellant with the Mexican Mafia’ssins. Because the gang evidence was far moreprejudicial than probative, the trial court abusedits discretion under Evidence Codesection 352 byfailing to exclude the testimony of expert witnesses Berry and Sgt. Valdemar. F. Reversal Is Required Because The Erroneous Admission OfThe Gang Experts’ Testimony Resulted In Both A Fundamentally Unfair Trial And A Miscarriage of Justice Asset forth above, the expert testimony about gangs in general and the Mexican Mafia in particular was inherently prejudicial. The erroneous admission of such inflammatory evidence rendered appellant’s trial fundamentally unfair in violation of the due process clause of the Fourteenth Amendmentto the federal Constitution as well as resulted in a miscarriage ofjustice underarticle VI, section 13 of the state Constitution. The federal courts have recognized that the introduction ofirrelevant but 101 inflammatory evidence may deprive the defendantofhis due processright to a fair trial. (See Estelle v. McGuire (1991) 502 U.S. 62, 67; see also Walter v. Maass (9th Cir. 1995) 45 F.3d 1355, 1357.) In McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, the Ninth Circuit found that the admission of irrelevant “other acts” evidence rendered trial fundamentally unfair in violation of the due process clause where: (1) the challenged evidence was emotionally charged(id. at p. 1385); (2) the challenged evidence pervaded the prosecution’scase (ibid.); and (3) the prosecution’s case againstthe defendant wassolely circumstantial and not weighty (ibid). Like the “other acts” evidenceat issue in McKinney, the gang evidencein this case essentially was “offered to prove character and [gave] rise to a propensity inference, and did not tend to prove a fact of consequence.” (Jd.at pp. 1382-1383.) The court’s conclusion about McKinney’strial applies equally to appellant’s: His wasnotthetrial by peers promised in the Constitution of the United States, conducted in accordance with centuries-old fundamental conceptions ofjustice. It is part of our community’s senseoffair play that people are convicted because ofwhat they have done, not who they are. | (Id. at p. 1386.) The gang evidencein this case encouragedthe jury to convict appellant on the basis ofwho the prosecution purported he was rather than on the basis ofwhat the prosecution proved he did. Asa result, the trial was rendered fundamentally unfair and resulted in a miscarriage of justice.” *? In People v. Partida (2005) 37 Cal.4th 428, 433-439, this Court held that where a defendant’s objection sufficiently alerted the trial court to the nature ofhis federal constitutional claim, he may raise that claim on appeal. Partida argued on appealthat evidence of his gang involvement was inherently prejudicial and, therefore, its erroneous admission rendered (continued...) 102 First, as discussed ante in section E, the gang evidence, especially the focus on the Mexican Mafia, was emotionally-charged and highly inflammatory. The jury heard not only that showing disrespect to the Mexican Mafiais “normally a death sentence” (8 RT 1018) andthat the Mexican Mafia had killed three people involved with the making ofthe film American Mebecause the Mexican Mafia perceived the movie as disrespectful (8 RT 1019); but also that the punishing arm of the Mexican Mafia could even reach participants in court proceedings, exacting revenge against those whom it perceivedtestified in a manner that was disrespectful to the organization. (8 RT 1029.) This compelling evidence of other people’s violence and criminality played on the jury’s fear of gangs, thereby inflaming the jury against appellant. The gang evidence also impermissibly permitted conviction based not simply on appellant’s own alleged criminal disposition arising from his membership in the 18th Street gang but on the criminal disposition of the Mexican Mafia to whom appellant was linked only by Sgt. Valdemar’s opinion that he, as a Sureno, necessarily was a “loyal soldier” for that gang. (8 RT 1017; see People v. Williams (1997) 16 Cal.4th 153, 193 [given highly inflammatory impact of gang evidence on a °(_..continued) his trial fundamentally unfair in violation of the due process clause of the federal constitution. (Ud. at pp. 433, 437.) This Court concludedthat, where the defendant objected at trial that the court erred in admitting certain evidence because it was more prejudicial than probative under Evidence Codesection 352, his claim that the trial court’s error in overruling the objection violated his due process rights could be raised on appeal. (People v. Partida, supra at pp. 436-437.) The same holdstrue here: appellant’s Fourteenth Amendmentdueprocess claim and his Eighth Amendmentreliability claim simply ask the Court to draw alternative legal conclusions from the same objection that he presented to the trial court. (Ud. at p. 436.) 103 jury, “trial courts should carefully scrutinize such evidence before admitting it.”] This risk of conviction based on speculation, association and predisposition was prejudicial. (People v. Cardenas, supra, 31 Cal.3d atp. 904 [admission of gang membership required reversal given the substantial danger that the jury would improperly infer appellant had a criminal disposition].) Second,as set forth ante in section E, the gang expert testimony pervadedthe prosecutor’s case against appellant. A prosecutor’s exploitation of erroneously admitted evidence often is a key factorin finding the error prejudicial. (People v. Hernandez (2003) 30 Cal.4th 835, 877 [prejudice of erroneously admitted evidence amplified by prosecutor’s argument]; People v. Woodard (1979) 23 Cal.3d 329, 341 [prosecutor’s exploitation of erroneously admitted evidence in argumentestablishes prejudice.)] The prosecutor repeatedly emphasizedthat“the heart of her case,” whatit “all boiled down to,” wasthat appellant’s status as a gang member required and demandedofhim thatheretaliate with lethal violence against Hardingfor the theft of his drugs. (10 RT 1339, 1340, 1342, 1343, 1345, 1351, 1353.) The prosecutor’s emphasis on the gang expert testimony allowed her to distract the jury from the evidentiary weaknesses of the case against appellant and instead focus the jury’s attention on the problem, andtheir own fear, of gang violence. Moreover, the prosecutor used the gang evidence to imbueher theory of the case with the imprimatur of authority from witnesses identified by thetrial court as experts. (See e.g., 11 RT 1341 [arguing to the jury that, “as Wilson Berry and Sergeant Valdemar testified,” the way to stop other drug users from taking another dealer’s cocaine is “you kill someone and you make an example out of them.”].) Third, the prosecution’s evidence against appellant was far from 104 overwhelming. Apart from evidence ofmotive based on appellant’s anger over Harding’stheft ofhis drugs, the prosecution’s case consisted of thin and problematic circumstantial evidence including: appellant’s presence at the Pacific Grand Hotel when the murders occurred (9 RT 1106-1109; 11 RT 1354); appellant’s fingerprints at the crime scene, which was a room he had visited (6 RT 728; 11 RT 1400, 1401); appellant’s access to cutting tools and wire through his job (9 RT 1060, 1070; 11 RT 1354); and appellant’s admitted prior assault and ransacking of McPherson’s hotel room twodaysprior to the murders (11 RT 1336). The lack of any direct evidence linking appellant to these crimes and the weaknessofthe circumstantial evidence underscorethe prejudicial effect of the erroneous admission of the gang expert testimony. (McKinney v. Rees, supra, 993 F.2d at p. 1386 [lack of a ‘weighty’ case against [appellant] and pervasiveness of erroneously admitted evidence”evince prejudice oftrial court error]; People v. Cardenas, supra, 31 Cal.3d 897, 907, 910 [given that evidence against appellant was “not overwhelming,” consisting solely of cross-racial eyewitness identification, it was reasonably probable that appellant was convicted based on “status as a heroin addict and gang memberrather than on evidence connecting him to the crimes”]; People v. Maestas, supra, 20 Cal.App.4th at pp. 1498-1499 [erroneous admission of gang evidence was prejudicial because guilt evidence was weak and gang retribution testimony and argument was pervasive].) Fourth, in addition to improperly bolstering the prosecution’scase, the expert gang testimony unfairly undermined the defense case by unjustifiably portraying appellant as a “foot soldier” for a notoriously violent gang. Appellant’s defense consisted primarily of his own testimony. The expert testimony about gangsessentially told the jury that appellant wasa bad person whose wordshould not be trusted. Rather than try to 105 impeach appellant by his own conduct and own statements, the prosecution branded appellant as an associate of the Mexican Mafia which,byitself, wassufficient to make him incredible. After hearing that the Mexican Mafia killed people involved with filming ofAmerican Meandused sexual humiliation as a form ofrevenge, there waslittle chance that the jury would rationally and dispassionately evaluate appellant’s testimony. (People v. Avitia, supra, 127 Cal.App.4th at pp. 194-195 [gang evidence was prejudicial where the government’s case “was not overwhelming” and appellant’s credibility was “key to the success of his defense”}.) In sum, the irrelevant expert gang evidence, which the prosecutor fully exploited in her closing argument, corroded the jury’s verdict by preying on their fear of gangs, influencing them to distrust appellant's testimony, encouraging them to disregard the weaknesses of the prosecution’scase, and ultimately leading them to believe that appellant would rather kill Harding in an act of gang revenge than have him sell drugs for appellant to fully repay for the drugs he had stolen. The highly inflammatory gang evidencefalsely bolstered the prosecution’s case — which was far from overwhelming — and unfairly undercut the defense by sabotaging appellant’s credibility. As a consequence ofthe erroneous admission of Berry’s and Valdemar’s highly prejudicial gang testimony, appellant’s trial was rendered fundamentally unfair in violation of the due process clause of the Fourteenth Amendment. (McKinney v. Rees, supra, 993 F.2d at p. 1385.) Whether judged as federal constitutional error under Chapmanv. California (1967) 386 U.S. 18, 24, which places the burden on the prosecution to prove that the error was harmless beyond a reasonable doubt, or as state error under People v. Watson (1956) 46 Cal.2d 818, 836, which places the burden on appellant to prove there is a reasonable probability that 106 but for the error he would have achieved a more favorable result, the erroneous admission of the gang expert testimony was prejudicial, and the murder convictions, special circumstance finding and death sentence should be reversed. // // 107 IV APPELLANT WASDENIEDHIS RIGHTS TO A FAIR TRIAL AND TO PRESENT A DEFENSE WHEN THE TRIAL COURT ERRONEOUSLY EXCLUDED EVIDENCE OF THIRD PARTY CULPABILITY FOR THE MURDERS OF HARDING AND JACKSON AND EVIDENCE THAT APPELLANT WAS NOT ANGRY AT HARDING BECAUSE OF THE THEFT OF HIS DRUGS Thetrial court erroneously excluded defense evidence that impeachedand contradicted the prosecution’s theory of appellant’s guilt for the two charged capital crimes. Thetrial court erroneously excluded evidenceofthird party culpability for the murders of Harding and Jackson and evidencethat contradicted the prosecution’s theory that appellant’s anger at Harding wasrelatedto the earlier theft of his drugs. Appellant sought to introduce evidencethat in the evening hours of December24, 1994, while Donte Vashaun and Donna Meekeywere alone in room 415, Vashaun ordered Meekey to seduce appellant so that Vashaun could steal the cocaine he believed had been returned to appellant by Miller. (5 RT 536.) When Meekeyrefused, Vashaun stripped off her clothes and began to beat her abouther face and body,ultimately pushing her naked, bruised body into room 416, where she stood crying before appellant. (6 RT 686.) Attrial, appellant sought to introduce evidence ofVashaun’s beating of Donna Meekey for two purposes. First, through cross-examination of Meekey and Vashaun,appellant sought to show Vashaun’s culpability for the murders of Harding and Jackson. Vashaun’s beating ofMeekey occurred in the exact location and very close in time to the beating and murders of Harding and Jackson(i.e., after the theft of appellant’s cocaine but before the murders) and evinced Vashaun’s willingness to use violence to gain access to appellant’s cocaine. Thetrial court erroneously excluded 108 this evidence of third party culpability on its mistaken finding that the proffered evidence was notrelevant. Second, appellant sought to prove, through his own testimony,that he wasangry at Harding not becauseofthe earlier theft of his drugs, but because Harding had allowed Meekeyto be brutally beaten by Vashaun without intervening. This evidence would have contradicted what the prosecutor described as “the heart of the case” (11 RT 1340) — that appellant’s anger toward Harding wasfueled by his sense ofbeing disrespected by Harding for not returning all of appellant’s drugs. The trial court erroneously excludedthis evidence, relying on his prior order excluding testimony from Vashaun and Meekeyaboutthis incident as determinative of the issue and finding that the reason for appellant’s anger was not material to the case. (10 RT 1293-1295.) The United States Constitution guarantees every criminal defendant the right to present a defense: “Whether rooted directly in the Due Process clause of the Fourteenth Amendmentor in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants, ‘a meaningful opportunity to present a defense.’” (Holmes v. South Carolina (2006) 126 S.Ct. 1727, 1731, citations omitted.) The California Constitution provides a similar guarantee. (Cal. Const. art. I, § 15; People v. Lucas (1995) 12 Cal.4th 415, 436.) The exclusion of appellant’s evidence prejudicially denied these state and federal constitutional rights. A. Proceedings Below Appellant repeatedly attempted to introduce evidencethat in the days immediately preceding the murders of Jackson and Harding, Donte Vashaun had severely beaten Donna Meekeyandleft her naked in room 109 416 because she would not cooperate in his schemeto steal cocaine from appellant. (5 RT 536, 671; 6 RT 686, 690, 720, 813.) From the outset ofthe trial the prosecutor sought to exclude evidence ofthe interaction between | Meekey and Vashaun, which she blandly described as evidence that Vashaun had comeinto the hotel room and told Meekeyto take off her clothes. (5 RT 536; 6 RT 687.) In response to the prosecutor’s motion to exclude the evidence, appellant’s initial proffer wasthat: Donte Vashaun, the people’s witness, took [Meekey] into a room, madeher get undressed andtold her he wanted her to go outside and screw — that isn’t the word. The word was a different word, a four letter word — and while she wasin the process of doing that, he was goingto steal the defendant’s drugs; that when she told him she wouldn’t do that, he beat her up andtold her he would dothingsto herif she didn’t go out and do it. The motivation is obvious. The people who had the most to gain from the death ofthe victimsin this case was not Mr. Becerra. (5 RT 535-536.) The court refused to allow this evidence to be presented to the jury, ruling that “third party culpability, it can’t come in. There is no way you can get it in this time.” (5 RT 536.) During his cross-examination ofDonna Meekey, defense counsel asked Meekey about Vashaun threatening her and beating her up when she refused to cooperate with him in stealing appellant’s drugs. (6 RT 686.) The prosecutor again objected, stating that “I don’t see the relevance [of this] to whetheror not the defendant, whoistotally different than Donte Vashaun, whether this defendant killed Fontain and J.J.” (6 RT 688.) Appellant’s counsel again madethe proffer that Meekey wouldtestify that she was beaten by Vashaun after she refused to keep appellant occupied so that Vashaun couldsteal his dope, andthat this evidenceis a “link in the chain of circumstances which will clearly indicate that the people who had 110 the .. . motive for killing Fontain were Donte Vashaun and Jerry Haywood, whois the people’s next witness.” (6 RT 688.) Thetrial court rejected this offer, flatly stating that the proffered evidence wasnot relevant. (6 RT 688.) In rejecting the relevance of Vashaun’s use of brutal violence in an attempt to seize appellant’s drugs, the court first stated that the evidence thus far established that appellant had a motiveto kill Harding and Jackson, because “it is his dope, he has a motive to get it back and kill somebody.” (/bid.) The court then explained that the proffered evidence “that [Vashaun] is going to beat her up so they can steal his dope”did not establish a motive for the murders. (6 RT 689.) The court acknowledged that the proffered evidence wasthird party culpability evidence, but stated “if you want to put on a defense, do it some other way.” (/bid.) Asthetrial progressed, the testimony from Vashaun and others established further foundation for the relevance of the proffered evidence of Vashaun’s attempts to use violence to seize appellant’s drugs. The evidence established that at the time ofHarding’s murder, Vashaun believed that Harding was inpossessionofcloseto halfa kilo of cocaine. (6 RT 784, 792.) Vashaun knewthat Harding and Miller had taken appellant’s drugs (6 RT 786); Vashaun knewthat Miller had returned her portion of appellant’s cocaine (6 RT 792) and that Harding’s portion was muchlarger (6 RT 799); and Vashaun did not know that Harding had returned to appellant the portion of the drugs he had taken (6 RT 800).*° Vashaun’s testimonyalso established that he was not opposedto violence such as that exhibited in these murders. Hetestified, “Fontain broke a law 3° Wilson Berry, not Vashaun, brokered the return of Harding’s drugs. Oncethis was completed, Berry left the hotel. (8 RT 981.) 111 in our world, our world is different from your world . . . in our world people [murder] every day.” (6 RT 758.) Havingestablished these facts, which further underscored the relevance ofVashaun’s assault on Meekey, appellant’s counsel again attempted to introduce the evidenceofthe assault, this time throughhis cross-examination ofVashaun. He asked Vashaun abouthis beating Meekeyin an attempt to force her to cooperate in stealing appellant’s cocaine. (6 RT 813.) Thetrial court, however, refused to consider the additional evidence, ruling that the question was “direct contempt” and that counsel should “‘stay away fromit.” (6 RT 814.) In the defense case, appellant attempted to introduce evidence of Vashaun’s attack on Meekeythrough his own testimony for a new and different purpose — to impeachthe prosecution’s theory that appellant murdered Jackson and Hardingin retaliation for the theft of his drugs. Throughout its case, the prosecution emphasized that appellant was angry at Hardingforthe theft of his drugs, that as a gang memberappellant had to retaliate violently for the theft of his drugs, and that the circumstances of the crimes showedthat they were a gangretaliation killing. The prosecutor mentionedthis theory repeatedly in her opening statements. (5 RT 541, 544, 545.) Indeed, she emphasizedthat the strength of the motive evidence overcame the paucity ofphysical evidence: You are not going to hear from any eyewitnesses. No person can comeinto this courtroom andsay, ‘I saw this man with his two homeboys dothestrangling.’ But what you haveis evidence ofmotive; you have opportunity; you have the reasoning for what was going on in his mind at the time. You havethe narcotics and the motivation behind that and how people are responsible for that quantity of cocaine and howit has to be handled. You will hear ample evidence of that during the course ofthistrial. 112 (5 RT 546.) The prosecutor wasclear that explaining why appellant committed the murders,as retaliation for the theft of his drugs, was integral to her case: “At the end ofthis trial you will have in front of you the evidence which showsyou, explains to you exactly whatit is that happened and, most importantly, why it happened.” (5 RT 548.) During the prosecutor’s cross-examination of appellant, she repeatedly elicited testimony that appellant was angry at Harding and that appellant’s anger wasrelated to the theft of his cocaine; indeed, every time that the prosecutor asked appellant about his anger, she immediately followed up with a question or statementrelating to the theft of his cocaine. (9 RT 1191, 1192; 10 RT 1270, 1280, 1283, 1285, 1286.) On redirect examination, defense counsel asked appellant why he was angry at Harding. The prosecutor objected, stating “I believe that the court has already ruled on this area.” (10 RT 1291.) The court upheld the objection, ruling that the reason for appellant’s anger wasirrelevant: The Court: Tell me what you want him to say. Mr. Garber: Well, he is going to discuss he had an argument and whatthe argument wasabout. The Court: Whatis the relevance of that argument and what it is about? Whatis the relevance when I have already ruled the only thing that is relevant here is the fact he was mad? She is trying to show his anger, he has a propensity to get angry. The reason he is angry is not material. Why she keeps going overit is a mystery to me. The fact that you people want to get into somethingin that I already ruled on is not going to change myposition. It is not relevant; it is not coming in. It is offered for one limited purpose. I told you that before. Stay the hell away from it. If you insist on going overthis stuff, both ofyou, you are stuck with it. Mr. Garber: Judge we haven’t gone over anything onthis. The Court: You are not going to. I am not going to change my ruling because you don’t object when she asks a question 113 or you say she openedthe door andit snuck in. You opened the doororiginally; you baited her. Mr. Garber: Judge, she has been opening the door, for example, about the statement — The Court: Mr. Garber, your client opened the door, and he has been well trained. That’s the end of the issue. Let’s get on with it. If I hear one more time how muchdopehetook,I am going to step in. Weare not going to get intothis. I have already ruled. The fact you guys open the door,that is your problem. Youthink she opened the door; you opened the door. You stay away from the door. (10 RT 1293-1295.) Finally, appellant raised the trial court’s error in excluding the evidenceofthird party culpability in his motion for a new trial. (X CT 3111-3126.) In his moving papers,trial counsel asserted that the trial court’s error in excluding the evidence of Donte Vashaun’s attack on Meekey denied appellant “due process of law anda fair trial.” (X CT 3117.) B. The Trial Court AbusedIts Discretion In Excluding The Relevant Evidence Of Donte Vashaun’s Violent Assault On Donna MeekeyAsPart of Vashaun’s Scheme ToSteal Appellant’s Cocaine From Harding And Thereby Denied Appellant A Fair Trial And The Right To Present A Defense Thetrial court abusedits discretion in excluding the evidence of Donte Vashaun’s violent assault on Donna Meekeyin an attempt to get appellant’s cocaine two daysprior to the murders of Harding and Jackson, particularly in light of the evidence that Vashaun believed Harding still had appellant’s cocaine. Thetrial court repeatedly erred in finding this third party culpability evidence “not relevant.” (5 RT 536; 6 RT 688.) Article I, section 28, subdivision (d) of the California Constitution providesthat “relevant evidence shall not be excluded in any criminal 114 proceedings.” Relevant evidenceis defined statutorily as evidence “having any tendency in reason to prove or disprove any disputed factthat is of consequence to the determination of the action.” (Evid. Code, § 210.) As this Court has explained,“[t]he test of relevance is whether the evidence tends ‘logically, naturally and by reasonable inference’ to establish material facts such as identity, intent, or motive.” (People v. Garceau (1993) 6 Cal.4th 140, 177; People v. Babbitt (1988) 45 Cal.3d 660, 681 [to be relevant, proffered evidence must have a tendency in reason to prove the fact for which it is offered].) The essential inquiry does not change because the evidence addresses the potential culpability of another person. Rather, as this Court has held, “courts should simply treat third party culpability evidence like any other evidence: if relevantit is admissible (Evid. Code, § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion (Evid. Code, § 352).” (People v. Hall (1986) 41 Cal.3d 826, 834 [rejecting any previous distinction between the evaluation of evidence of third party culpability and all other evidence].) As shownbelow, appellant’s excluded evidence not only wasrelevant to the motive behind the murders ofHarding and Jackson but circumstantially linked Vashuan to the actual killings, and there was no basis for any concern that the probative value of appellant’s evidence would be outweighedby any ofthe factors set forth in Evidence Codesection 352. Motive wascentral to this case. The prosecution’s theory wasthat appellant killed Harding and Jackson both in retaliation for the theft of his drugs and in an attempt to ward offretaliation against appellant from other gang membersfor having allowed cocaine that belonged to the gang to be stolen. (5 RT 545-546; 11 RT 1339-1341.) The prosecution’s case necessarily focused largely on this motive, as there was no significant 115 physical or other evidence linking appellant to the crime.” The evidence appellant proffered regarding Vashaun’s violence toward Meekey supported an alternative theory that also focused largely on motive: that Vashaun, believing Hardingstill possessed the lion’s share of appellant’s cocaine, wanted the cocaine andresorted to violence to get what he wanted, ultimately killing Harding in pursuit of the stolen drugs. (5 RT 535-536.) Vashaun’sbrutality toward Meekey evinced his willingness to use violence to get his hands on appellant’s cocaine. As appellant’s counsel explained,this evidence was a “link in the chain of circumstances” showing Vashaun’s motive for killing Harding. (6 RT 688.) The relevanceofthe excluded evidenceis readily apparent. First, the evidence provided circumstantial proof of disputed issues ofmotive and opportunity, linking a specific third person, Donte Vashaun, by his own violent act to the commission ofthe murders with which appellant was charged. (People v. Hall, supra, 41 Cal.3d at p. 833 [“there must bedirect or circumstantial evidencelinking the third person to the actual perpetration of the crime”].) This evidence did not simply point to a theoretical motive on the part of others, but identified a particular individual with specific motive to commit the crimes. (See People v. Sandoval (1992) 4 Cal.4th 155, 176 [to be relevant evidence ofthird party culpability must establish actual motivation on the part of another, not just the idea that others might have wantedto kill the victim].) Second, Vashaun’s violent conduct toward Meekey,like the murders ofHarding and Jackson, wasrelated to appellant’s crack cocaine. (Cf. People v. Avila (2006) 38 Cal.4th 491, 578 31 The sole physical evidence linking appellant to the murders were fingerprints in room 415, a room in which appellant testified he had spent a substantial amountoftimein the days preceding the murders. (6 RT 728, 740; 8 RT 964.) 116 [evidence that third party committed an unrelated rape was too speculative to be relevant]; People v. Harris (2005) 37 Cal.4th 310, 340 [evidence that third party was involvedin drug dealing with victim of attempted murder and ultimately murdered that victim wasnotsufficiently linked to the actual perpetration of the crimes charged].) Third, the evidence ofVashaun’s motive and willingness to use violence wasclose in time and physical proximity to the murders: Vashaun’s assault on Meekey occurred just two days before and in the samelocation as the killing of Harding and Jackson. (People v. Mendez (1924) 193 Cal. 53 [third party evidence mayberelevant if it showsthe third parties close to the scene ofthe crime]; Cf. People v. Robinson (2005) 37 Cal.4th 592, 624 [proffered third party evidence was too remote in time and did notlink the third parties to this crime].) Finally, the relevance ofmotive evidenceis “particularly significant” where, as here, there is “an absence ofphysical evidence linking defendantto the .. . killings.” (People v. Garceau, supra, 6 Cal.4th at p. 176.) In excluding appellant’s proffered evidence, the trial court both misinterpreted the law and misperceived the facts. Thetrial court failed to * Because appellant’s proffered third party culpability evidence had a “tendency in reason”to disprove the prosecution’s theory ofmotive and inferentially to disproveits theory that appellant killed Harding and Jackson, the excluded evidencedid not ask the jury to draw “speculative inferences.” (People v. De La Plane (1979) 88 Cal.App.3d 223, 244.) Evidenceis either relevant, or it is irrelevant. If it is relevant, it is presumptively admissible (Evid. Code, § 351; People v. Green (1981) 27 Cal.3d 1, 39, fn. 25, overruled on other grounds, People v. Martinez (1999) 20 Cal.4th 225.) Ifit is irrelevant, it is inadmissible. (Evid. Code, § 350; People v. Babbitt, supra, 45 Cal.3d at p. 681.) Evidence is not rendered “speculative” and thus “irrelevant” simply because it may be subject to various interpretations. As long as one ofthe interpretations has a tendency to prove the fact for which the proponentoffers it, the evidence is relevant. (People v. Kraft (2000) 23 Cal.4th 978, 1034.) 117 grasp that the admissibility of third party culpability evidence does not turn on the strength of this evidence when comparedto the prosecution’s theory, but turns solely on whetheror not the evidence has a tendency in reason to prove the fact for which the defendantoffers it. In People v. Hall, supra, 41 Cal.3d at p. 833, this Court expressly rejected as a requirement for relevance that third party evidence present “substantial proof of a probability” of another’s guilt. Nevertheless, in refusing appellant’s proffered evidence, thetrial court relied only on the prosecution’s theory: “fit is Becerra’s dope, as the evidenceis now. It is his dope,he has a motiveto get it back and kill somebody” (6 RT 688.) Thetrial court failed to consider whether appellant’s third party culpability evidence would tend to disprove this theory. Misapprehending its duty under Hall, the trial court misjudged the probative value of appellant’s evidence. Moreover,asthe trial continued and established further foundation for the relevance ofthe proffered evidence (6 RT 792, 799, 800), the trial court refusedto revisit its ruling. As this Court has stated, it is incumbent upon trial court to reconsider proffered third party evidenceas further testimony is introduced, because evidence which had been speculative and inadmissible may becomerelevant and admissible. (People v. Harris, supra, 37 Cal.4th at p. 339.) In this case, the trial court flatly dismissedthis duty, warningtrial counsel that it was “direct contempt” to question Vashaun abouthis beating of Meekey. (6 RT 814.) This refusal to reconsider the admissibility of the proffered evidence compoundedthetrial court’s abuse ofdiscretion. Had the court admitted the proffered evidence, the jury would have heard ofVashaun’s cocaine-motivated beating ofMeekey two dayspriorto, and in the same room as, the cocaine-motivated beating and murders of Harding and Jackson. This is precisely the kind of circumstantial evidence 118 that is capable of raising a reasonable doubtas to appellant’s guilt because it shows the motive, opportunity and capacity of a third person to have committed the murders of Harding and Jackson. (People v. Hall, supra, 41 Cal.3d at p. 833.) Thetrial court’s ruling that the excluded evidence did not show “any motivation or any relevance” was simply wrong. (6 RT 689.) Thetrial court’s exclusion of appellant’s evidence about Donte Vashaun violated not only state law but the federal Constitution as well. The compulsory process and confrontation clauses of the Sixth Amendment and the due process clause of the Fourteenth Amendmentto the United 666States Constitution guarantee every criminal defendant “‘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.) Few rights are as fundamentalas this one (Rock v. Arkansas (1987) 483 U.S. 44, 51, fn. 8), which is “among the minimum essentials ofa fair trial.” (Chambers v. Mississippi (1973) 410 U.S. 284, 294.) As the Supreme Court explained forty years ago, “The right to present a defense is ... a fundamental element of due process of law.” (Washington v. Texas (1967) 388 U.S. 14, 19.) Recently, the United States Supreme Court reaffirmed the importanceofthe right to a meaningful opportunity to present a complete defensein a capital case, like appellant’s, involving third party culpability evidence. In Holmes v. South Carolina (2006) __— U.S. __, 126 S.Ct. 1727, the Court held that the defendant had been deniedhis right to present a defense whenthetrial court applied a state rule barring admission ofthird party culpability evidence where the state presents strong evidence, especially strong forensic evidence, of the defendant’s guilt. Because forensic evidence implicated the defendant, the trial court excluded defense evidencetending to show that another man had committed the murder. (/d. 119 at pp. 1731-1732.) While finding constitutional error, the High Court made clear that a state court may exclude a defendant’s evidence that someone else committed the crime with which he is chargedifhis evidence “does not sufficiently connectthe other party to the crime or does not tend to prove or disprove a material fact in issue at the defendant’s trial.” (/d. at p. 1733.) However, a state court may not exclude the defendant’s third party culpability evidence because, in its opinion, the proffered defense evidence does not raise a reasonable inference as to the defendant’s innocence in light of the weight ofthe prosecution’s incriminating evidence. (Jd.at p. 1734.) Holmeshighlightsthe violation of appellant’s constitutional right to present a complete defense. Appellant’s evidence about Vashaun suffered from none ofthe defects that Holmes identifies as permissible groundsfor exclusion. As shownabove, the evidence about Vashaun directly and immediately connected him to the motive, location, people, and type of violence involved in the murders. In addition, the evidence tended to prove the defense theory, and to disprove the prosecution’s theory, of the motive for and the perpetrator of the murders and thus focused on central issues in the case. Moreover,thetrial court’s relevanceruling in this case, like the state evidentiary rule at issue in Holmes, erroneously premised the decision to exclude the third party culpability evidence on the strength of the prosecution’s proof. As discussed above, the trial court here began its analysis by noting that the evidenceattrial strongly supported the prosecution’s theory of guilt, i.e. that appellant killed Harding and Jackson because Jackson had stolen appellant’s cocaine. (6 RT 688.) Rather than carefully evaluate the probative value of appellant’s evidence, the trial court madean initial ruling summarily rejecting the evidence and then refused to 120 | reconsiderthe proffer. (6 RT 688, 814.) As Holmesteaches, the strength of the prosecution’s case is irrelevantto the logical connection of the proffered third party culpability evidence to the central issue for which it is offered. (Holmes v. South Carolina, supra, 125 8.Ct. at p. 1734.) The erroneous exclusion of the defense evidence about Donte Vashaun’s assault on Donna Meekeyviolated appellant’s Sixth and Fourteenth Amendmentrights to present a complete defense as well as his Fourteenth Amendmentdueprocessrightto a fair trial. The excluded evidence wasintegral to appellant’s defense, especially sinceit independently corroborated his own testimony, and there was no other means for him to present this evidence. The evidence was highly probative, in that it tended to show that someone other than appellant had committed the murders. In analogouscases, the exclusion of relevant defense evidence has resulted in a denial of the federal constitutional right to present a defense. (Gill v. Ayers (9th Cir. 2003) 342 F.3d 911, 916-921 [trial court’s refusal to allow defendantto testify at sentencing hearing to explain circumstances of prior conviction on groundthat proof ofprior conviction is limited to record of conviction violated defendant’s constitutionally protected right to testify]; Greene v. Lambert (9th Cir. 2002) 288 F.3d 1081, 1089-1092 [trial court’s refusal to allow evidence of defendant’s dissociative identity disorder, which was relevant to his mentalstate, violated his constitutional right to present a defense]; DePetrisv. Kuykendall (9th Cir. 2001) 239 F.3d 1057, 1062 [trial court’s exclusion of husband’s journal and petitioner’s reaction to reading it was constitutional error, not mere evidentiary error, because it would have corroborated defendant’s testimony onthecritical issue ofher state ofmind when she shot her husband].) A similar Sixth and Fourteenth Amendmentviolation occurred here. 121 Thetrial court’s ruling also denied appellant his Eighth Amendment right to a reliable sentencing determination. Even if the jury had convicted appellant of the murders of Harding and Jackson after considering the evidence ofthird party culpability, the jury still could have considered it as lingering doubt evidenceatthe penalty phase. (See People v. Terry (1964) 61 Cal.2d 137, 145-146 [jury may determinethat guilt proven beyond reasonable doubtbutstill demand greater degree ofcertainty for imposition of death penalty].) The failure to permit appellant to introducethis evidence effectively removedhisability to present a potential mitigating factor in violation of the Eighth and Fourteenth Amendments. (See Eddings v. Oklahoma (1982) 455 U.S. 104, 110; Lockett v. Ohio (1978) 438 U.S. 586, 604.) Appellant acknowledgesthat this Court has held that the erroneous exercise of discretion under ordinary state evidentiary rules does not violate the federal Constitution. (People v. Cudjo (1993) 6 Cal.4th 585, 611-612.) In Cudjo, the Court drew a distinction between the exclusion of defense evidence resulting from the application of “general rules of evidence or procedure which preclude material testimony or pertinent cross- examination for arbitrary reasons, such as unwarranted and overbroad assumptions ofuntrustworthiness” and the exclusion of defense evidence resulting from the application ofstate rules that themselves are not unconstitutional. In the Court’s view, the former but notthe latter ruling runs afoul of the federal Constitution. (Jd. at p. 611.) This view is difficult to reconcile with the purpose of constitutional protections. A defendant’s right to present a defenseis noless infringed when judicialerror, as opposed to an undulyrestrictive state statute or evidentiary rule, stymiesthe right. Under the Court’s Cudjo analysis, judicial errors which infringe on fundamental constitutional rights are not violations of the federal 122 Constitution, despite the fact that the infringementis justas seriousasifit were caused by an unconstitutional statute. This result makes no sense. Since Cudjo, this Court has addressed claimsof federal constitutional error arising from the exclusion of defense evidence without applying the distinction used in Cudjo. In People v. Fudge (1994) 7 Cal.4th 1075, the Court held thatthe trial court’s ruling that prevented defense counsel from introducing hearsay testimony on cross-examination did not deny the defendant his due processright to present a defense. As the Court explained: Although completely excluding evidence of an accused’s defense theoretically could rise to this [constitutional error] level, excluding defense evidence on a minoror subsidiary point does not impair an accused’s due processright to present a defense. (People v. Hawthorne (1992) 4 Cal.4th 43, 58.) (Id. at p. 1103.) Thus, the claim was rejected because this Court found that the excluded evidence was unimportant without any reference to whether the exclusion resulted from the operation of an unconstitutional state rule or Statute or from “mere” judicial error. Morerecently, in People v. Cunningham (2001) 25 Cal.4th 926, this Court reaffirmed the holding in Fudge and foundthatthe trial court rulings precluding defense questions were not of constitutional dimension because it did “not appear that, had the trial court permitted the inquiries that defense counsel sought to make, the resulting testimony would have produced evidence ofsignificant probative value to the defense...” (Jd.at p. 999.) Thus, Cunningham also utilized a test that looks at the effect of the ruling rather than whetherthe ruling is based upon “mere”judicial error rather than some form of systemic error. In this case, the trial court’s error did not simply address “a minor or 123 subsidiary point” (People v. Fudge, supra, 7 Cal.4th at p. 1103). Rather, it excluded “evidence of significant probative value” that was essential to appellant’s third party culpability defense. (People v. Cunningham, supra, 25 Cal.4th at p. 999.) As a result, the exclusion of appellant’s evidence violated his due processright to a fair trial under the Fourteenth Amendmentandhis right to present a complete defense under the Sixth and Fourteenth Amendments. C. The Trial Court Abused Its Discretion In Excluding Evidence That Appellant Was Angry At Harding For Not Stopping Donte Vashaun’s Assault On Donna Meekey Rather Than For The Theft Of His Drugs And Thereby Denied Appellant A Fair Trial And The Right To Present A Defense Faced with a paucity offacts linking appellant to the murders of Jackson and Harding, the prosecutor resorted to a theory built on fear and innuendo. Central to this theory wasthe notion that the murders were a revengekilling for the theft of the drugs, and somehow were connected to appellant’s membership in a Sureno gang. Asset forth in Section B ofthis argument, ante at pages 114-123, the prosecutor repeated this sameset of facts over and overin her opening statement (5 RT 541, 544, 545, 546, 548) and her cross examination of appellant (8 RT 1191, 1192; 10 RT 1270, 1280, 1283, 1285, 1286). Indeed, this motive theory was the very reason used to justify admitting the testimony of the prosecution’s gang experts. (See ArgumentIII, ante.) Yet, when,in the course of his own testimony, appellant attempted to offer an alternative explanation for his anger toward Harding which wasnotlinkedto the theft of his drugs, the trial court refused even to consider the offer ofproof and excluded the evidence on the groundsthat the reason for appellant’s anger wasirrelevant. (10 RT 1293- 1295.) As shown below,thetrial court abused its discretion in excluding 124 appellant’s evidence and thereby denied appellant his federal constitutional rights to a fair trial, to present a complete defense, and to present evidence on his own behalf. Relevant evidence is admissible as discussed in Section B ofthis argument, ante at pages 114-116 and incorporated here. Contrary to the trial court’s ruling, the evidence appellant sought to introduce wasrelevant because the prosecution’s case rested not only on the fact that appellant was angry but also on the reason for his anger. Lacking significant physical or other strong evidenceto link appellant to the murders, the prosecution emphasized motive. Andits theory of appellant’s motive focused on why he was angry. The prosecutor directly argued the reason for appellant’s anger to the jury: “[W]hatthis all boils down to in this caseis that this defendant, a long-time gang member,felt disrespected.” (11 RT 1339.) What wascritical to the prosecution’s case was not simply appellant’s anger, but that as a gang member whowasangry aboutthe theft of his drugs and the disrespect that the theft showed, appellant would have had to retaliate with a level of violence suchasthat reflected in the murders of Harding and Jackson. (11 RT 1339, 1340, 1341, 1343, 1349.) The prosecutor’s motive theory informed her closing argument in which she recited the evidence from her gang experts that the particular mannerofthe killings — strangulation with the victims’ pants pulled down — could be consistent with what a gang memberwhohasbeen disrespected would do. (11 RT 1350, 1351.) Giventhis record, the trial court’s analysis that the prosecution was only “trying to show his anger, he has a propensity to get angry” (10 RT 1294) was simply wrong. The reason for appellant’s anger wasclearly central to the prosecution’s case. Appellant’s evidencethat his anger at Harding had nothing to do with the prior theft of his drugs and wasnotrelated to appellant’s gang 125 status would havecalled into question the major thrust of the prosecution’s case. His evidence would have countered the prosecution’s proofon the substantial, disputed issue of motive which, as the prosecutor herself explained, was what the case “all boils down to.” (11 RT 1339.) The exclusion of this relevant and important evidence waserror, especially since no other equivalent evidence waspresented to the jury. (People v. Cunningham (2001) 25 Cal.4th 926, 994 [“Evidence Code section 352 must yield to a defendant’s due processrightto a fair trial andto the right to presentall relevant evidence of significant probative value”]; People v. Boyette (2002) 29 Cal.4th 381, 425 [error to exclude evidence that corroborated defense presented through appellant’s testimony]; Hammarley v. Superior Court (1979) 89 Cal.App.3d 388, 401 [state evidentiary rules may notbe applied in a mannerthat denies the defendantthe right to present “all evidence that can throw light on the issues in the case”]; see, People v. Garceau, supra, 6 Cal.4th 140, 177 [evidence of motive is particularly significant in cases without physical evidence].) Appellant’s proffered testimony that his anger stemmed fromwhat heperceived of as Harding’s failure to protect Meekey would have given the jury a reasonable explanation for appellant’s angerthat did not support the prosecution’s theory of guilt. Appellant’s proffered evidence would have undermined the state’s entire approach to the case, and may well have causedajuror to have a reasonable doubtas to appellant’s guilt. (People v. Reeder (1979) 82 Cal.App.3d 543, 550 [error for trial court to exclude evidence of appellant’s state ofmind from which the jury could have drawn an exculpatory inference]; see X CT 2881 [CALJIC 2.01, instructing jury that if circumstantial evidence permits two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence,the jury must adoptthat interpretation that points to the defendant's innocence, and 126 reject that interpretation that pointsto his guilt].) The exclusion of appellant’s own testimony about the reason for his anger, like the exclusion ofhis third party culpability evidence, violated not only state evidentiary law but the federal Constitution as well. The right to a fair trial under the Fourteenth Amendmentandthe right to present a defense underthe Sixth and Fourteenth Amendments are set forth in section B ante at pages 119-124 andthat discussion is incorporated here. In addition, appellant had the right to testify in his own defense and “to present relevant testimony” under the due process clause of the Fourteenth Amendment, the compulsory process clause of the Sixth Amendment, and the privilege against self-incrimination under the Fifth Amendment. (Rock v. Arkansas, supra, 483 U.S. at pp. 51-53, 55.) Just as the state may not arbitrarily prevent the defendant from testifying (Rock v. Arkansas, supra, at pp. 49, 55), it may notarbitrarily restrict his testimony,as the trial court did here, so as to exclude relevant evidence on a material issue. Asa result of the trial court’s order, the prosecution was permitted to present its theory for appellant’s anger at Harding and to argueits theory as pointing to appellant’s guilt, but appellant was precluded from presenting evidence that would have provided an alternative reason for his anger, pointing to a reasonable doubt abouthis guilt. Simply stated, appellant was entitled to be heard on the question of his anger. (Crane v. Kentucky, supra, 476 U.S. at p. 690 [“an essential component ofprocedural fairness is an opportunity to be heard.”].) Excluding appellant’s evidence deprived him “of the basic right to have the prosecutor’s case encounter and ‘survive the crucible ofmeaningful adversarial testing.’” (/d. at pp. 690-691, citations omitted [a defendantis entitled to present evidence of the circumstances surrounding his confessionif it is used against him at trial].) Moreover,the trial court’s ruling also violated due process by 127 applying state evidentiary standards unevenly in a waythat favored the prosecution over the defendant. (Green v. Georgia (1974) 442 US. 95, 97 [hearsay rule that excluded testimony offered by the defense that would have been exculpatory in sentencing hearing, but allowed the governmentto introduce the same evidencein his co-defendant’s trial was an unjustified and unevenstatute that violated defendant’s due process rights]; Webb v. Texas (1972) 409 U.S.95, 97 [trial court’s conduct in admonishing the sole defense witnessto testify truthfully, without giving similar admonitions to prosecution witnesses, and the subsequentrefusal by the sole defense witnessto testify deprived the defendant of due process]; Washingtonv. Texas, supra, 388 U.S.at p. 23 [rule that prevented an accomplice from testifying on a defendant’s behalf while permitting prosecution to use accomplice’s testimony in codefendant’strial violated due process]; see also Wardius v. Oregon (1973) 412 U.S. 470, 472, 475-476 [statute requiring that defendant give notice of an alibi defense prior to trial without requiring reciprocal discovery from prosecution violated due process].) Althoughthe right to present a defense and related constitutional trial rights under the Sixth and Fourteenth Amendments “‘may, in appropriate cases, bow to accommodateotherlegitimate interests in the criminaltrial process” (Rock v. Arkansas, supra, 483 U.S.at p. 55, citation omitted), there was no valid, countervailing state interest here that justified either the exclusion of appellant’s evidence or the unequaltreatment of the prosecution and the defense evidence regarding the motivation behind appellant’s anger at Harding. Appellant’s evidence was probative and impotantandits arbitrary exclusion violated his federal constitutionaltrial rights. 128 D. The Trial Court’s Erroneous Exclusion Of Relevant Defense Evidence Impeaching the Prosecution’s Theory Of The Case Was Prejudicial and Requires Reversal The impact of the trial court’s evidentiary errors must be assessed in light of the overall strength of the prosecution’s case. (People v. Fudge (1994) 7 Cal.4th 1075, 1103-1104.) Here, the proofwas far from overwhelming. There was no unexplained physical evidence implicating appellant in, and no direct evidence explicitly linking him to, the murders of Harding and Jackson. The prosecution’s case against appellant rested on the circumstantial evidence of his apparent motiveto retaliate against Harding for the theft of his drugs and the argumentthat the mannerofthe murders was consistent with a gangretaliation killing. Except for Sergeant Valdemar, the prosecution’s case rested on witnesses like Vashaun,Berry, Meekey, Miller, and McPherson — admitted felons or drug addicts who had used cocaine throughoutthe time period about whichtheytestified. The jury deliberations confirm that the prosecution’s case was not overwhelming. The jury deliberated appellant’s culpability for the murders ofHarding and Jackson over the course of four days prior to reachingits verdicts. (X CT 2863, 2967, 2868, 2869, 3051.) Yet, the legal issues before the jury were not complex. Appellant had conceded his guilt for the non-homicide charges. (9 RT 1129-1131.) Moreover, the jury was instructed on only one theory offirst degree murder (X CT 3005-3007), and the physical evidence, showing Harding and Jackson bound together and strangled, offered a factual basis for finding premeditation and deliberation without much debate. Clearly, the jury must have had serious questions aboutthe only disputed issue — whether appellant was the killer. Asdiscussed in section B, ante, at pages 115-117, the prosecution’s case wasall about appellant’s motive and opportunity to kill Harding. The 129 prosecutor madethis clear in both her opening statement (5 RT 546) and her closing argument (11 RT 1335-1336). In her own words, motive was “the heart of the case.” (11 RT 1340.) The excluded evidence of Vashaun’s beating ofMeekey — offered both to establish Vashaun’s motive to kill Harding in order to obtain appellant’s cocaine and to show that appellant’s anger at Harding wasnotrelated to Harding’stheft of his cocaine - would have countered the prosecution’s fundamental theory thereby presenting a factual basis for reasonable doubt about appellant’s guilt. Succinctly stated, the trial court’s rulings undermined appellant’s defense. Given that the prosecution’s proof was far from overwhelming, the centrality of the excluded evidence and the prosecutor’s exploitation of each error rendered them prejudicial and requires reversal of the murder convictions, special circumstance finding and death sentence. 1. The Exclusion of Evidence of Third Party Culpability Was Prejudicial The defense theory was that notwithstanding appellant’s anger at Harding, the evidence wasinsufficient to prove beyond a reasonable doubt that appellant was the person who murdered Harding and Jackson. The defense rested on the argumentthat a third party was guilty of the murders. The excluded evidence was keyto the defense. The introduction of evidencethat one day prior to the murders, Donte Vashaun,in the very room wherethe murders occurred, had used brutal violence against Meekey in an attempt to get appellant’s cocaine, would have given the jury cause to evaluate the inculpatory evidence against appellant in a totally different light. Without this evidence, the jury wasleft only with appellant’s word, and his testimony was compromised by the requirement that he wear a stun belt while testifying. (See ArgumentII, ante.) Defense counsel wasleft in the untenable position ofhaving to argue a theory of defense without the 130 available supporting evidence. Defense counsel specifically told the jury that the prosecution’s case rested solely on the appearance of a motive on appellant’s part for the murders, but that this theory was wholly unsupported by the evidence (11 RT 1365, 1372, 1392), and that the evidenceat trial showed that numerous other individuals had a motive to commit these murders in an attemptto take the drugs they believed Harding had. (11 RT 1380, 1381, 1384.) Defense counsel theorized: How about a whatif situation where we havea situation where someoneloses a whole amount of drugs and everybody in the hotel who is a drug user or sell — and you know that from all the witnesses — finds out about it. The drugs are returned to what appearsto be the rightful owner, but unfortunately not everybody in the hotel knowsthat. And whatthey hear is that in this case Mr. Harding or Mr. Fontain has a whole bunchofdrugs . .. Mr. Valdemar wasn’t asked about whetheror not if other individuals knew about the drugs that were found by Mr. Harding and Darlene Miller, whether or not they had any incentive or motive to commit these murders. (11 RT 1380-81.) The prosecutor, who objected to the admission of the defense evidence, exploited the trial court’s erroneous ruling by pointing out the absenceofthird party culpability evidence. Responding to defense counsel’s argument, the prosecutor plainly told the jury: “You have been presented with no credible evidence that anyone other than the defendant had the motive, means or opportunity to committhis crime.” (11 RT 1403.) She highlighted appellant’s failure to present any evidence to support his defense: [T]hey chose to put on a defense, and in choosing to put on a defense, they had better put on a defense... You heard not one shred of corroboration in this case about what the 131 defendant told you. You didn’t hear from a single witness who could have corroborated anything he said. (11 RT 1405-1406.) She wentonto argue that appellant’s anger and prior violence all showedthat he had the motive and means to commit the murders. (11 RT 1410, 1411, 1412.) She concludedthis section ofher argument by underscoring the dearth of contrary evidence from the defense. She asked the jury: Did you hear any credible evidence during the courseofthis wholetrial about anyone else who had a motive? No, you didn’t. Anyoneelse who had the meansto do this? No, you didn’t. Anyoneelse who had put themselves into a place of opportunity to have done this? No. (11 RT 1413.) The evidencerelating to Donte Vashaun supplied the answerto the prosecutor’s questions and clearly supported the defense argument. Testimony from both Donna Meekeyand Vashaun would have shown that Vashaun had both a motiveto kill Harding in order to get the drugs he believed Harding still had and a willingness to use violence to gain access to drugs. Vashaun’s own testimony indisputably established opportunity, as he wasin the hotel at the time the murders occurred. (6 RT 757, 762, 824.) Yet, because ofthe trial court’s error in excluding this evidence, appellant was prevented from competently answering the prosecutor’s questions and assertions. In this “who dunnit” case, the trial court’s rulings left appellant with no independent corroboration of his own testimony. In this way, the exclusionofthe third party culpability evidence that was crucial for proving his defense was prejudicial. (See DePetris v. Kuykendall, supra, 239 F.3d at pp. 1063-1064 [finding exclusion ofhusband’s journal andpetitioner’s reaction to reading it prejudicial because it would have corroborated her testimony onthecritical issue ofher state ofmind when she shother 132 husband]; Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270, 1273 [finding exclusion of evidence that would have impeached the complainant in a sexual molestation case prejudicial in light of importance ofher credibility and weakness ofthe physical evidence].) The importance of the excluded evidence to appellant’s defense, combined with the weaknessesin the prosecution’s case, differentiates this case from those in which this Court foundtrial error in rejecting evidence of third party culpability to be harmless. For example, in People v. Hall, supra, 41 Cal.3d at p. 835, the error was held to be harmless because evidence directly linking the third party to the crime wasplaced before the jury in other ways. Similarly, in People v. Cudjo, supra, 6 Cal.4th at pp. 612-613, the Court concluded that the error was harmless because the defendant was conclusively placed at the crime scene by both prosecution and defense evidence; there was overwhelming evidencethat only one person wasat the crimesceneat the pertinent time; and there was strong evidence impeaching the defense theory. The excluded evidencerelating to third party culpability in this case was far more crucial to the defense than the excluded evidencein Hall or Cudjo. Without this evidence, appellant wasentirely precluded from presenting his defense to the capital murders. Trial counsel clearly viewed this error as crucial at the timeoftrial, as he raised it as a denial of “due process of law anda fair trial” in his motion for a newtrial. (X CT 3117.) Finally, the prosecutor’s ready exploitation ofher own successin excluding appellant’s third party culpability evidenceis a strong indication that the error was prejudicial. (See e.g., People v. Minifie (1996) 13 Cal.4th 1055, 1071; People v. Daggett (1990) 225 Cal.App.3d 750, 757; Peoplev. Varona (1983) 143 Cal.App.3d 566, 570; United States v. Ebens (6th Cir. 1986) 800 F.2d 1422, 1440-1441; United States v. Toney (6th Cir. 1979) 133 599 F.2d 787, 790-791 [all relying on the fact that the prosecutor’s argument took advantageoftheerror to find prejudice]; see also Kyles v. Whitley (1995) 514 U.S. 419, 444 [“Thelikely damage” from an evidentiary omission for which the prosecution is responsible “is best understood by taking the wordofthe prosecutor . . . during closing arguments. . .”].) In People v. Minifie, supra, 13 Cal.4th at p. 1055, this Court held that the trial court erred in excluding evidence offered in support of a claim of self-defense that third parties, whom the defendant arguably associated with the victim, had threatened the defendant. (/d. at pp. 1065+1068.) In argument the prosecutorinsisted that there was “no evidence” that the defendant had been threatened andthat his claim of self-defense was “contrived” because it was “not supported by the evidence.” (dd.at p. 1071.) This Court unanimously concluded that “[t]he jury argumentofthe district attorney tips the scales in favor of prejudice ... .” bid.) As the Court explained: The reason there was ‘no evidence’ and the ‘contrived’ defense was ‘not supported by the evidence’is easily explained. The missing evidence waserroneously excluded. This argument demonstrates that the excluded evidence was not minor, butcritical to the jury’s proper understanding of the case. It is, therefore, reasonably probable [underthe state law test for harmless error] the error affected the verdict adversely to defendant.” (Id. at pp. 1071-1072.) Similarly, in People v. Daggett, supra, 225 Cal.App.3d 751,a child molestation prosecution, the trial court erred in excluding defense evidence that the complaining child witness had previously been molested by third parties, which was relevant to explain how thechild could have acquired knowledge ofmolesting behavior. The appellate court concludedthat the error was prejudicial due in large part to the prosecutor’s closing argument 134 that the child must have acquired the knowledge because the defendant had molested him. (/d. at pp. 757-758.) Asthe court stated, “[t]he prosecutor asked the jurors to draw an inference that they might not have drawn if they had heard the evidence the judge had excluded. He, therefore, unfairly took advantageofthe judge’s ruling” and compoundedthe prejudicial effect thereof, which required reversal. (/d. at p. 758.) Here, as in Minifie and Daggett, the prosecutor highlighted the absenceofthe excluded evidence and encouragedthe jurors to draw inferences adverse to appellant from this lack of proof. The prosecutor repeatedly emphasized that appellant had failed to present a defense and that no evidence had been presented to show anyalternative suspect. As in Minifie and Daggett, the prosecutor’s argument here seriously compounded the damageofthetrial court’s evidentiary error thus making it prejudicial. 2. The Exclusion of Evidence That Appellant's Anger at Harding Was Not Related to the Theft of His Drugs WasPrejudicial Like the exclusion ofthe third party culpability evidence, the exclusion of appellant's testimony explaining the reason he wasangry at Harding wasprejudicial. It, too, was crucial to his defense. The evidence that appellant was angry because Harding failed to protect Meekey from Vashaun would have countered the heart of the prosecution's case — that the murders were a gang retaliation because Harding's theft of appellant's drugs wasan intolerable sign of disrespect. The prosecutor hammeredrelentlessly on this theme. She wove her opening argument around the concept of appellant feeling disrespected, mentioning the term on almost every page ofher statement. (See 11 RT 1339, 1340, 1341, 1342, 1434, 1344, 1345, 1346, 1348, 1349, 1350, 1351, 1352, 1355, 1357.) As noted previously, in her closing argument, she told 135 the jury that “what this all boils down to in this case is that this defendant, a long-time gang member,felt disrespected.” (11 RT 1339.) She emphasized over and overthat as a gang member,appellanthadto kill whoever had taken his drugs in order to maintain his respect on the street. “As nowall of you know . . . when someone's cocaineis taken from them in this manner there are repercussions, people are disrespected,and thereare results. There are killings that happen.” (11 RT 1340.) The prosecutor expoundedthis theme further throughout her argument: -[a]s [appellant] is talking to all of these people he is continually showing off his demeanor, his words, his actions about the disrespect and angerthat he feels and what heis going to do about it. He is going to kill Fontain . . . Drug sellers do not just let drugs get lost. There hasto be, according to these people, some wayto control that. And the way they control it is by doing something physical. (11 RT 1342.) Sheinsisted that the case was about gangretaliation: whenyou disrespect someone, when you disrespect 18th street, an 18th street gang memberand,in this case, the two homeboys with the defendantretaliated. They made an example out of Fontain and out of J.J., and that's what happenedin this case. (11 RT 1343 .) The prosecutor also emphasized that the mannerofkilling proved that the appellant killed Harding and Jackson becausehefelt disrespected. (11 RT 1351.) Asdiscussed already, a prosecutor's use of evidentiary error to her advantage is an unmistakable sign that the error was prejudicial. (See People v. Minifie, supra, 13 Cal.4th at p. 1071; Peoplev. Daggett, supra, 225 Cal.App.3d at p. 757.) The theft-disrespect theory for appellant's anger was, without a doubt, the linchpin of the prosecution's case. Appellant's testimony explaining that he was angry because Harding had abandoned Meekeyto 136 Vashaun would have refuted the claim that thecase wasall about appellant's drug dealing and gang membership. The evidence of appellant's concern for Meekey also would have shown a sympathetic aspect of appellant's character that would have dampenedthe prosecution's attempt to portray appellant as a violent, out-of-control monster. By casting the case in an entirely different light, the excluded evidence would have permitted the jury to entertain a reasonable doubt about whether appellant was the person whokilled Harding and Jackson. Without testimony about the reason he wasangry at Harding, appellant was denied his sole opportunity to support this aspect of his defense, since he was the only witness who could explain his state ofmind. (Cf. People v. Wells (1949) 33 Cal.2d 330, 357 [erroneous exclusion of testimony from psychiatrist that appellant was in ‘state of tension’ was not prejudicial because appellant's own testimony established that he had acted with the requisite mental state].) In short, the exclusion of appellant's testimony about his own anger wasprejudicial for the same reasons that the exclusion ofhis third party culpability evidence wasprejudicial: the excluded evidence, which would have undercut the prosecution essential theory of motive, was crucial to appellant's defense in a case in which the evidenceof appellant's guilt was not overwhelming and in whichthe prosecutor fully exploited the evidentiary error by relying heavily on her unimpeachedtheory of motive to argue appellant's guilt for a double murder. 3. The Exclusion of the Defense Evidence, Considered Singly or Together and Under AnyPrejudice Standard, Requires Reversal of the Judgment Reversal of the judgmentis required whetherthe errors are judged underthe state law standard in People v. Watson (1956) 46 Cal.2d 818, 836, or the federal constitutional standard in Chapman v. California (1967) 386 137 U.S. 18, 24. And reversal is required whetherthe prejudicial effect of each error is considered separately or cumulatively. (Killian v. Poole (9th Cir. 2002) 282 F.3d 1204, 1211; People v. Holt (1984) 37 Cal.3d 436, 459 [both finding the cumulative effect of errors was prejudicial].) The trial court’s errors severely impeded appellant’s defense. The exclusion ofthe third party culpability evidence, showing that Vashaun had the motive and means to commit these crimes, deprived appellant of any independent evidence in support of his defense that someoneelse was responsible for the murders of Harding and Jackson. (See 11 RT 1403.) Andthe exclusion of evidence about the reason appellant was angry at Hardy completely prevented him from challenging the prosecution’s central theory ofmotive. Asa result of each of these separate errors, appellant was unable to impeach whatthe prosecutor herselfviewed as“the heart of the case” (11 RT 1340), and each separate error prejudiced appellant. The synergistic effect of these errors wasto eviscerate appellant’s defense, precluding him from introducing the very evidence that could have created a reasonable doubt as to his guilt in the minds ofthe jurors. When the combinedeffect ofthese errorsis considered in the context of the evidence introducedattrial against defendant, the prejudice suffered by appellant is plain. The murder convictions, special circumstance finding and death sentence must be reversed. // // 138 Vv THE COURT ERRED IN ADMITTING SPECULATIVE AND IRRELEVANT EXPERT TESTIMONY THAT UNREADABLEFINGERPRINTS AT THE MURDER SCENE MIGHT POSSIBLY BELONG TO APPELLANT Despite the vast amountofevidenceat the crime scene, the only physical evidencethat linked appellant to the charged murders were two innocuousfingerprints recovered from room 416. In an attempt to improperly augment the weight of the scant physical evidence linking appellant to the Harding and Jackson murders, the prosecutor, over defense objection,elicited expert testimony that an additional three more incriminating prints, which did not possess sufficient characteristics to allow an identification to be made, were possibly appellant’s. This testimony was speculative andirrelevant and, thus, was improperexpert testimony. Thetrial court erred in admitting it. The introduction ofthis testimony violated appellant’s federal constitutional rights to fair trial (U.S. Const., 14th Amend.) and a reliable determination of guilt and penalty based on the jury’s consideration of only accurate and relevant evidence (U.S. Const., 8th & 14th Amends). A. Proceedings Below Forensic Print Specialist Sandra Claiborne lifted 11 fingerprints from the crime scene, rooms 415 and 416 ofthe Pacific Grand Hotel. (6 RT 725- 726.) Upon examination, notall 11 of the prints were readable. (6 RT 730.) Wendy Cleveland, a forensic print specialist for the Los Angeles Police Department, identified two ofthe lifted prints as belonging to appellant. (6 RT 728.) The first print was recovered from a lamp which wason a glass table in the room. (/bid.) The second was recovered from an empty Pepsi can which wasrecovered from the trash can. (/bid.) Ofthe remaining nineprints, “a couple” were identified as belong to Harding. (6 139 RT 730.) Clevelandtestified that the remaining prints “were really not clear enough to makea definite decision about whether they would beable to match someone.” (/bid.) However, over defense objection, shetestified that it was “possible” that three of these unreadable latent prints belonged to appellant. (Ibid.) The three unreadable prints were recovered, respectively, from the stem ofthe lamp which wasontheglasstable, the top portion of a fan which waslocated near the bed, and the front door knob. (6 RT 732.) Although Cleveland concededthat she “would neveridentify something without enough characteristics to form an opinion” (6 RT 735), she repeatedly asserted that she was able to give an expert opinion, based on her analysis of the unclear prints, that she could not exclude appellant as the source of the three remaining fingerprints. (6 RT 730, 742.) B. The Fingerprint Examiner’s Irrelevant Speculation Linking Unreadable Fingerprints Found At The Crime Scene To Appellant Was Inadmissible Under Evidence Code Sections 210 And 801, And Its Admission Violated The Federal Constitution Confronted with a case in which the evidence of appellant’s guilt was limited to testimony from drug addicts and a police gang expert as to appellant’s motive and opportunity to commit the crime, the prosecutor seized an opportunity presented by fingerprint expert Cleveland to improperly inflate the physical evidence linking appellant to the crime scene. The prosecutor had Clevelandtestify that in her expert opinionit was “possible”that three unclear and unidentified prints at the crime scene belonged to appellant. (6 RT 730.) Thetrial court abusedits discretion in admitting this undisguised conjecture becauseit failed to meet the prerequisites for expert testimony (Evid. Code, § 801) and for relevant evidence (Evid. Code, § 210). 140 Evidence Code section 801, subdivision (b) creates two distinct requirements for admission of expert testimony: “the matter relied on must provide a reasonablebasis for the particular opinion offered, and ... an expert opinion based on speculation or conjecture is inadmissible. (Jn re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564, citing Cal. Law Revision Com. Com.to § 801(b) “irrelevant or speculative matters are not a properbasis for an expert’s opinion.”].)**> Cleveland’s expert testimonyfails to meet both requirements. Cleveland’s opinion plainly violated Evidence Codesection 801, subdivision (b) in that it was based on precisely the type ofmatter that may not reasonably “be relied upon by an expert in forming an opinion upon the subject to which his testimonyrelates” (Evid. Code, § 801, subd. (b); Jn re Lockheed Litigation Cases, supra, 115 Cal.App.4th at p. 564.) Cleveland herself acknowledged that the quality of the unidentifiable prints precluded her from giving an expert opinion regarding identity. (6 RT 735.) However, Cleveland did not acknowledge that the accepted standards 33 Evidence Codesection 801, in its entirety reads as follows: If a witnessis testifying as an expert, his testimony in the form of an opinion is limited to such an opinionasis: (a) Related to a subject that is sufficiently beyond common experiencethat the opinion of an expert would assist the trier of fact; and (b) Based on matter (including his special knowledge, skill, experience,training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may berelied upon by an expert in forming an opinion upon the subject to which his testimonyrelates, unless an expert is precluded by law from using such matter as a basis for his opinion. 141 within the “forensic identification community” specifically preclude a fingerprintidentification expert from giving an opinion ofprobable or possible identification. The Scientific Working Group onFriction Ridge Analysis, Study and Technology, (hereinafter “SWGFAST”) was established in 1995, beforethetrial in this case, under the sponsorship of the FBI crime laboratory, with a mission to “formalize and document guidelines and standards”for the fingerprint analysis community. (Commonwealth v. Patterson (Mass. 2005) 840 N.E.2d 12, 21, fn. 9.) Pursuantto the published SWGFAST methodologyforlatentprint examiners, a latent print examiner may only give an opinion of identification or exclusion, andis specifically prohibited from testifying as to possible or probable identifications.** Moreover, Cleveland’s opinion 4 The SWGFASTstandards provide in pertinent part: 3.3 Evaluation Evaluation is the formulation of a conclusion based upon analysis and comparison offriction ridge impressions. Conclusions which can be reachedare: 3.3.1 Individualization (Identification) Individualizationis the result of the comparison oftwo friction ridge impressions containing sufficient quality (clarity) and quantity offriction ridge detail in agreement. Individualization occurs whena latent print examiner, trained to competency, determinesthat twofriction ridge impressions originated from the samesource,to the exclusion ofall others. 3.3.2 Exclusion Exclusionis the result of the comparison of twofriction ridge impressions containing sufficient quality (clarity) and quantity of friction ridge detail which is not in agreement. Exclusion occurs whena latent print examiner, trained to competency determines that two friction ridge impressionsoriginated from (continued...) 142 that the unreadable prints could not exclude appellant was rank speculation and therefore was inadmissible under Evidence Codesection 801, subdivision (b). (n re Lockheed Litigation Cases, supra, 15 Cal.App.4th at p. 564 [construing § 801, subd. (b) to prohibit the admission of expert testimony based on speculation or conjecture].) Even absentthis statutory scheme, this Court has long required that an expert’s opinion be based on more than speculation and conjecture. (Eisenmayer v. Leonardt (1906) 148 Cal. 596, 600 [proper to exclude expert opinion whichis “unsubstantial and imaginary ... for which no facts [are] stated - either real or hypothetical- as a basis for an intelligent opinion”]; Long v. California-Western States Life Insurance Co. Cal. (1955) 43 Cal.2d 871, 882 [not proper for expert witnessto testify to matters based uponspeculation or conjecture].) Although expert witness testimony has changed dramatically over the years, courts have consistently held that it is improper for expert witnesses to testify based on speculation and conjecture because such an opinion is ofno assistance to the finderoffact: 4(_.continued) different sources. 3.3.3 Inconclusive Inconclusive evaluation results when a latent print examiner, trained to competency,is unable to individualize or exclude the source of an impression. Inconclusive evaluationresults must not be construed as a statement ofprobability. Probable, possible orlikely individualization (identification) conclusionsare outside the acceptable limits of the friction ridge identification science. (SWGFAST,Friction Ridge Examination Methodology for Latent Print Examiners, (pp. 3-4, http://www.swefast.org/Friction_RidgeExamination_ Methodology_for_Latent_Print_Examiners_1.01.pdf(as of October 21, 2006].) 143 Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is an inherentcorollary to the foundational predicate for admission of expert testimony:will the testimonyassist the trier of fact to evaluate the issues it must decide? [citation.] (Jennings v. Palomar Pomerado Health Systems (2004) 114 Cal.App.4th 1108, 1117; see Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135-1136 [“Where an expert bases his conclusion upon assumptions whichare not supportedby the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value.”] In other words, an expert witness’s out-and-out conjecture is not relevant evidence becauseit does not have “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210; see People v. Humphrey, supra, 13 Cal.4th at pp. 1076, 1086 [acknowledging that expert testimony onbattered women’s syndrome mustberelevantto a disputed issue in the case].) Cleveland’s testimony — that it was possible that three of the unreadable prints were appellant’s — wasirrelevant speculation. Cleveland explainedthat latent prints are processed by “dust[ing] powder over a surface that we think may have been touched. The powderclings to the moisture left behind from having touched an item, and the moisture is in the pattern on the ridges on your fingers or on your palms and evenonthesoles of your feet.” (6 RT 724.) Cleveland explained to the jury her process of latent fingerprint analysis: WhatI do is I examinethe fingerprint on the card with a ten print inked print from a formerarrest from a former time whenMr. Becerra wasfingerprinted to the lift. After I have examined it and looked at the characteristics within the ridges and where theyare in that fingerprint and where they relate to the fingerprint on the inked print and after I have decidedthat 144 they couldn’t have been made byanyother person,that is when I would sign the back ofthe lift with my initials. _ (6RT 728.) Therecord is clear that the three unclear prints did not display a sufficient level of detail for the analyst to be able to determineall the characteristics of the print. A conclusion drawn based on a partial analysis simply requires too much guesswork and conjecture to be admissible testimony. Astrial counsel noted “anythingis possible.” (6 RT 730.) Cleveland’s testimony is exactly the type of speculative, irrelevant testimonythat provides noassistanceto thetrier of fact, and waslikely to mislead and confuse the issues before the jury. Thetrial court’s admission of Cleveland’s testimony about the three unreadable prints was an abuse of discretion, as it was irrelevant, speculative and exceeded the boundaries of Evidence Codesection 801. In addition to violating state evidentiary law,the trial court’s admission of the improper expert fingerprint testimony violated the due process clauses of the Fourteenth Amendmentto the United States Constitution and article I, section 15 of the California Constitution. (See Estelle v. McGuire (1991) 502 U.S. 62, 67; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643.) Thetrial court’s erroneous admission of Cleveland’s irrelevant expert testimony rendered appellant’s trial fundamentally unfair. (Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 738 [admission of expert’s opinion about credibility of child victim of alleged sexual abuse violated due process by makingthetrial fundamentally unfair]; McKinney v. Rees, supra, 993 F.2d at p. 1385 [admission of irrelevant “other acts” evidence renderedtrial fundamentally unfair].) In addition, the improper admission of Cleveland’s speculative testimony deprived appellant of the right to a reliable adjudication at all stages of a 145 death penalty case. (See Lockett v. Ohio, (1978) 438 U.S. 586, 603-605; Beck v. Alabama (1980) 447 U.S. 625, 638; Penry v. Lynaugh, (1989) 492 U.S. 302, 328, abrogated on other grounds, Atkins v. Virginia (2002) 536 U.S. 304.)* C. The Admission OfThe Fingerprint Examiner’s Speculative And Irrelevant Opinion Was Prejudicial and Requires Reversal Despite the plethora ofphysical evidence present at the crime scene and amenableto analysis, there was a paucity ofphysical evidence analysis linking appellant to the murders ofHarding and Jackson. There was a patterned abrasion on the body ofHarding, which Dr. Carpentertestified could be analyzed to identify the weapon usedto beat him. (7 RT 845.) No apparent attempt was madeto identify this weapon. Althoughthe bodies were bound with numerousligatures made from cut or crimpedelectrical cords, no tool, other than appellant’s knife which was precluded, was identified or tested to determineif it could have cut the cords. (8 RT 949.) Although blood was found on the victim’s bindings and throughout the crime scene, no serological evaluation was conducted, and although DNA tests were conducted on evidence at the scene, no DNA evidence was _ introducedat trial. (8 RT 950.) Although the small hotel room in which the bodies were found, measuring only 18 feet by 10 anda half feet (8 RT 945), was littered with objects and materials, Inspector Long believed it was 54s discussed aboveat page 102, footnote 29, appellant’s federal constitutional claims maybe raised on appeal under People v. Partida, supra, 37 Cal.4th at pp. 433-439. Defense counsel’s objection sufficiently advisedthetrial court and the prosecution ofthe basis of appellant’s opposition to fingerprint testimony, and the Fourteenth Amendment due process violation and the Eighth Amendmentreliability violation are the consequencesofthetrial court’s erroneous evidentiary ruling. 146 infeasible to book them all into evidence (8 RT 934). The police investigation led to only one link between appellant and the crime scene — his twofingerprints. Yet, the two fingerprints, one of which was on a soda can in the wastebasket, were not inculpatory. Indeed, the contents of the wastebasket actually underscored the credibility of appellant’s version of events,as it corroborated he hadin fact eaten a meal in Harding’s room. (9 RT 1146.) The testimonyelicited from fingerprint expert Cleveland changed the nature of the fingerprint evidence, linking appellant specifically to the lamp from which oneofthe cords used to bind the victims had been cut. (8 RT 910.) This improper evidence did not just provide further evidence that appellant was in room 416,but tied appellant to the murder weapon. In her closing argument, the prosecutor repeatedly emphasizedthis link, focusing on how the prints which were “possibly” appellant’s tied him to the cut cords which were used to strangle Jackson and Harding: Now,the print that matches Mr. Becerra’s is on the glass portion of the table, on the upper portion. There’s a possible print — it can not be madeorit can not be excluded to Mr. Becerra — on the stem ofthe table. And, lo and behold, the cord is cut So now we’ve got a positive print ofMr. Becerra on the top of the table, a possible print ofMr. Becerra on the bottom ofthe table The prints. We haveprints then on the table right above where the cord wascut and at the base ofthat cord. (11 RT 1400, 1401, italics added.) The prosecutor’s emphasis of the erroneously admitted evidence underscored and compoundedthe prejudice of the trial court’s error. (People v. Hernandez (2003) 30 Cal.4th 835, 877 147 [prejudice of erroneously admitted evidence amplified by prosecutor’s argumentl].) Reversal of the judgmentis required whetherthe errors are judged underthe state law standard in People v. Watson, supra, 46 Cal.2dat p. 836, or the federal constitutional standard in Chapman v. California, supra, 386 USS.at p. 24. The trial court admitted evidence which being bald conjecture wasirrelevant and an impermissible subject of expert opinion, and the prosecutor then relied on this evidence to argue the sole physical link between appellant and the murder weapon. Given the weaknessofthe prosecution’s case, and the way in which the improper admission ofthis evidenceshifted the nature of the physical evidence linking appellant to meansofthe crime, the admission of this evidence wasprejudicial. (See Argument IV D, ante.) The judgment should be reversed. H // 148 VI THE TRIAL COURT’S INSTRUCTION TO THE JURY THAT IT COULD DRAW ADVERSE INFERENCES FROM APPELLANT’S FAILURE TO EXPLAIN OR DENY EVIDENCE AGAINST HIM WAS PREJUDICIAL ERROR Thetrial court instructed the jury in the language of CALJIC No. 2.62 as follows: In this case defendanthastestified to certain matters. _ If you find that defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you maytakethat failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. The failure of a defendant to deny or explain evidence against him doesnot, by itself, warrant an inference ofguilt, nor doesit relieve the prosecution ofits burden ofproving every essential element of the crime andthe guilt of the defendant beyond a reasonable doubt. If a defendant does not have the knowledge that he would need to deny or explain evidence against him, it would be unreasonable to draw an inference unfavorable to him becauseofhis failure to deny or explain such evidence. (11 RT 1432-1433; X CT 2994.) Thetrial court erred in giving the jury this instruction, since there were no facts or evidence presented by the prosecution which were within appellant’s knowledge that he failed to explain or deny. Underthe facts of this case, the instruction erroneously permitted the jury to infer appellant’s consciousness of guilt if it disbelieved or rejected for any reason any portion of his testimony. Further, the misinstruction violated the due process clause of the Fourteenth Amendmentby presenting the jury with an unconstitutional permissive 149 inference that allowed the jury to convict upon proofless than beyond a reasonable doubt. Whether viewedasstate law or federal constitutional error, the erroneousinstruction was prejudicial and requires reversal of the judgment. . A. The Trial Court Erred In Instructing The Jury Pursuant To CALJIC No. 2.62 Because Appellant Did Not Fail To Deny Or Explain The Evidence Against Him As this Court has explained, CALJIC No. 2.62 should only be given if a defendant “‘fail[s] to explain or deny any fact of evidence that was within the scope of relevant cross- examination.” (People v. Saddler (1979) 24 Cal.3d 671, 682; People v. Roehler (1985) 167 Cal.App.3d 353, 392 [instruction may only be given, as a matter of law, if defendant has failed to adequately answer a question posed oncross- examination]; Peoplev. Haynes (1983) 148 Cal.App.3d 1117, 1120 [instruction should only be givenifthere is some “specific and significant defense omission that the prosecution wishesto stress or the defense wishes to mitigate”].) Asthis Court noted in Saddler: [t]he trial court has the duty to instruct on general principles of law relevantto the issues raised by the evidence,[citations omitted] and hasthe correlative duty “to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidencebutalso havethe effect of confusing the jury or relieving it from making findings on relevant issues.” (People v. Satchell (1971) 6 Cal.3d 28,33, fn. 10.) (People v. Saddler, supra, 24 Cal.3d at p. 681.) Where, as here, the defendant’s testimony respondsto and denies the prosecution’s evidence,it is error for the court to give CALJIC No. 2.62. (id.at p. 683.)* 36 Although appellant’s trial counsel did not object to the adverse (continued...) 150 Contradictions between a defendant’s testimony and the prosecution’s witnesses are “nota failure to explain or deny.” (People v. Saddler, supra, 24 Cal.3d at p. 682; see People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) Moreover, “the test for giving the instruction is not whether the defendant’s testimony is believable.” (People v. Kondor (1988) 200 Cal.App.3d 52, 57 [rejecting the Attorney General’s argument that when appellant’s argumentis so improbable it amounts to no explanationat all].) Thus, if the defendant’s testimony fully counters the evidence offered by the prosecution, it is error to give the instruction, regardless of the plausibility of appellant’s version of events. (People v. Marsh (1985) 175 Cal.App.3d 987, 994 [trial court erred in instructing jury pursuant to CALJIC No. 2.62 even though defendant’s explanation was inherently implausible]; People v. Peters (1982) 128 Cal.App.3d 75, 86 [that defendant’s explanation may not have been believed by the jury does not justify giving CALJIC No. 2.62].) In this case, there were no specific questions asked on cross- examination that appellant failed to answer. Nor did appellant fail to explain or deny the evidence against him. Thefocusofthe prosecution’s case wasthat appellant had a motive to kill Harding to retaliate for the prior taking of his drugs. (5 RT 546; 11 RT 1340.) Appellant denied that this *6(,..continued) inference instructions, the claimederrors are cognizable on appeal. Instructional errors are reviewable even without objection if they affect a defendant's substantive rights. (Pen. Code, §§ 1259 & 1469; see People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7; People v. Jones (1998) 17 Cal.4th 279, 312.) Merely acceding to an erroneousinstruction does not constitute invited error; nor must a defendant request modification or amplification whentheerror consists of a breach ofthe trial court's fundamental instructional duty. (People v. Smith (1992) 9 Cal.App.4th 196, 207, fn. 20.) 151 motive existed, testifying that although his drugs had been taken by Harding and Miller, a large portion of his drugs had been returned by both Miller and Harding (9 RT 136, 1143), and Harding hadagreedto sell for him to makeup for the missing portion (9 RT 1140). The prosecution’s theory was that appellant had received his drugs from either the Mexican Mafiaor the 18th Street gang, and that he had committed the murders in angerat being disrespected by the theft of his drugs and outoffear ofretaliation from the gang for the loss of the drugs. (9 RT 1338.) Appellant admitted that he was a long- time memberofthe 18th Street gang (9 RT 1178), buttestified that his gang affiliation had nothing to do with the drugs he hadat the Pacific Grand in December, 1994, and that he had stolen them from his “connection” (9 RT 1206). The prosecutor argued that appellant’s statement to Meckeythat he got his drugs from “the gang” was further evidencethat the lost drugs belongedto either 18th Street or the Mexican Mafia. (11 RT 1408.) Appellant denied making any such statement. (9 RT 1157.) In closing argument, the prosecution focused on testimony regarding appellant’s anger at Harding and Miller as evidence of appellant’s express malice and intent to kill. (11 RT 1336, 1339.) Appellant repeatedly admitted that he had been angry at Harding and Miller for the theft of his drugs and had threatened both ofthem for having taken his drugs and smokinga portion of them, but he denied that he had killed Harding and Jackson. (10 RT 1282, 1286; 9 RT 1176.)*’ The only direct evidence 37 Appellant also attemptedto testify that on the night of December 24 and morning ofDecember25 he was angry at Harding notforthetheft of his drugs but because he believed Harding had allowed Meekeyto be beaten by Donte Vashaun,but thetrial court precluded the introduction of this evidence. (See ArgumentIV,ante.) 152 linking appellant to the crime were twofingerprints found in room 416. (6 RT 728.) However, appellant’s testimony provided an exculpatory explanation for his fingerprints at the crime scene,as hetestified that he had been in room 416 on December24 eating, drinking and partying. (9 RT 1188.) Finally, appellant admitted that much of what hetestifiedto at trial wasnot contained in his written statement to the police, but explained that “a two or three hour interview is not in a three page statement.” (10 RT 1321.) Appellant’s testimony on direct and cross-examination offered a cohesive, consistent explanation of all the facts that the prosecution offered against him, and offered “general and specific denials concerning the evidence presented by the prosecution.” (People v. Campbell (1978) 87 Cal.App.3d 678, 686 [error to give CALJIC No. 2.62 where appellant categorically denies the charges against him].) Because there was nofailure to explain or deny any significant aspect of the prosecution’s case in the course of appellant’s testimony,it waserror to instruct pursuant to CALJIC No.2.62. B. The Court’s Error In Instructing Pursuant To CALJIC No. 2.62 Requires Reversal Thetrial court’s error in instructing pursuant to CAJLIC No.2.62 requires reversal becauseit is reasonably probable the jury would have reached a morefavorable result had the instruction been omitted. (Peoplev. Saddler, supra, 24 Cal.3d at p. 683; see People v. Watson (1956) 46 Cal.2d 818, 836.) Given the whole charge to the jury and the prosecutor’s argument, this misinstruction directed the jury into a two-step analysis that prejudiced appellant. First, the jurors likely applied this instruction to the portions of appellant’s testimony that they disbelieved or rejected, rather than to any failure to explain or deny the evidence against him. Second, the 153 jurorslikely drew the inferencethat their disbelief or rejection of appellant’s statements was evidence of appellant’s consciousnessofguilt. (People v. Saddler, supra, 24 Cal.3d at p. 684 [the full charge to the jury must be considered whenassessing prejudice]; People v. Marsh, supra, 175 Cal.App.3dat p. 994 [the focus of the prosecutor’s argumentis a significant factor in considering the impact of an erroneous chargeto the jury pursuant to CALJIC No. 2.62.].) Such an inference was highly prejudicial. Ashas been discussed in ArgumentIII, ante, pp.104-106, the prosecution’s case against appellant was not overwhelming. There was no physical evidence implicating appellant in, and no direct evidence explicitly linking him to, the murders ofHarding and Jackson. The prosecution’s case against appellant rested on the circumstantial evidence of his apparent motive to retaliate against Hardingfor the theft of his drugs and the argument that the mannerofthe murders purportedly was consistent with a gangretaliation killing. Appellant’s testimony flatly contradicted the prosecution’s theory of guilt and denied all culpability for the murders of Harding and Jackson. Except for Sergeant Valdemar, the prosecution’s case rested on witnesses like Vashaun, Berry, Meekey, Miller, and McPherson — admitted felons or drug addicts who had used cocaine throughoutthe time period about whichthey testified. Appellant’s hope for acquittal rested on the jury putting enoughfaith in his version of events to underminethe prosecution’s ability to prove their case beyond a reasonable doubt. The prosecutor, however, repeatedly argued that appellant had lied to the jury and that his version of events was simply incredible. (11 RT 1340, 1398, 1408, 1413-1415.) The prosecutor told the jury that there were 13 times that appellant had lied to them during his testimony. (11 RT 1404.) Amongthe identified “lies” were which room appellant occupied December 154 24 - 26, i.e. room 720 or room 811 (11 RT 1398, 1409); where in room 416 he rocked cocaine on the night of December 24 (11 RT 1401);that appellant got his cocaine bystealing it from a drug dealer (11 RT 1407, 1414); appellant’s denial of the moniker “Killer Frank” (11 RT 1413, | 1415); appellant’s testimony ofhow cocaine affects his body and mood (11 RT 1414): whether he got to the Pacific Grand on December22 on public busor got a ride from Aida (11 RT 1414); and how Lefty cameto provide backup to appellant on the morning of December 24 (11 RT 1415). Moreover, the prosecutor repeatedly emphasized to the jury that any liesit found appellant had told showed a consciousnessofguilt. (11 RT 1404 [“[w]hen the defendantlies, that shows a consciousnessofguilt. There is no question in this case that this man murdered Mr. Jackson and Mr. Harding”’]; 11 RT 1415 [“[iJt’s lies, it’s lies. When he got on the stand and he lied to you, you musttake that into account when you judge his credibility, because that specifically goes to his consciousnessofguilt”].) In grappling with the import of what the prosecution called appellant’s “lies,” the jury likely turned to CALJIC No.2.62, which wasthe only instruction the jury received regarding the significance of any perceivedlack of credibility by the appellant. (X CT 2874-3041.) Unlike the qualification in CALJIC No. 2.03, this instruction did not require that the jury must find that defendant’s purported failures to explain or deny werewillfully false or deliberately misleading.** Rather, the instruction *8 The jury was not instructed pursuant to CALJIC No. 2.03 which provides: If you find that before this trial [a] [the] defendant made a willfully false or deliberately misleading statement concerning the crime[s] for which [he] [she] is now being tried, you may consider that statement as a circumstance (continued...) 155 permitted anyfailure to explain or denyto be considered as “indicating that amongthe inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.” (12 RT 1432.) The clear import of the prosecution’s argument wasthat the unfavorable inference to the defendant mandatedat the close of thefirst paragraph ofCALJIC No. 2.62 was that any perceived failure to explain or deny the evidence showed appellant’s “consciousness of guilt.” (11 RT 1415.)? However,as this Court has noted with regard to CALJIC No.2.03, a finding of consciousness of guilt must be predicated on “deceptive or evasive behavior on a defendant's part” (People v. Jackson (1996) 13 Cal.4th 1164, 1224), not a mere misstatement. It is the deliberate dishonesty ofthe testifying defendant that allows the jury to draw the inference of the defendant’s “consciousness of some wrongdoing.” (People v. Crandell (1988) 46 Cal.3d 833, 871; accord People v. Wayne (1953) 41 Cal.2d 814, 823 [inference of consciousness ofguilt only permissible “where the false statement or testimony is intentional rather than merely mistaken and wheresuchstatementor testimony suggests that defendant has no true exculpatory explanation”]; People v. Edwards (1992) 8 Cal.App.4th 1092, 1102 [CALJIC No. 2.03 may be given whenthereis evidencethat the defendant prefabricated a story to explain his conduct]; 38(_. continued) tending to prove a consciousness of guilt. However, that conductis not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide. *° In applying CALJIC No.2.62, the jury was instructed to draw two inferences: first, the jury was to infer the truth ofwhatever matter appellant failed to explain or denyor, as applied here, of whatever matter about whichit disbelieved or rejected appellant’s testimony. Second, the jury was to infer an “unfavorable” inference to appellant. 156 see also CALJIC No. 2.21.1 [“innocent misrecollection is not uncommon.”].) In this case, relying on the erroneousinstruction under CALJIC No. 2.62 and the prosecutor’s argument, the jury likely inferred appellant’s consciousnessofguilt from any misstatement — whether inadvertent or honestly mistaken — that appellant madein his testimony. In this case, which turned on appellant’s credibility, such an inference was prejudicial. It is reasonably probable that, as a result of the misinstruction ofCALJIC No.2.62, the jury incorrectly reasoned that its rejection of appellant’s version of events allowed for a finding of consciousnessofguilt. There is a reasonable probability that this erroneous inference made the difference in this case in which the prosecution’s evidence was weak, and the jury’s verdict turned on whoit believed, appellant or the prosecution’s witnesses. The judgment should therefore be reversed. (People v. Watson, supra, 46 Cal.2d at p. 836.) This case is readily distinguished from Saddler, in which the court foundthatthe error in instructing pursuant to CALJIC No. 2.62 did not prejudice appellant. (People v. Saddler, supra, 24 Cal.3d at p. 684.) First, unlike Saddler, in this case there was noidentification evidence linking appellant to the charged crime. (/d. at p. 683 [discussing the positive identification of the appellant by the robbery victim]). Second, in Saddler this Court reasoned that the jury’s rapid return of a guilty verdict underscored the strength of the prosecution’s case and the unlikely prejudice from the instructional error, whereasin the instant case the jury deliberated over the course of four days. (/bid.) Finally, in Saddler, the prejudice the court considered was limited to the giving of the instruction itself; there was no exploitation of the error in prosecutorial argumentas in this case. 157 C. The Erroneous Instruction Pursuant To CALJIC No.2.62 Also Resulted In A Prejudicial Due Process Violation By Creating AnIrrational Permissive Inference. The erroneousinstruction under CALJIC No.2.62 also resulted in a prejudicial violation of the due processclause ofthe Fourteenth Amendment. For the reasons explained above,there is a reasonable likelihood that, given the chargeto the jury and the argumentof counsel, the jury applied the challenged instruction in a mannerthat created an irrational permissive inference ofthe truth of the prosecution’s evidence and appellant’s consciousnessof guilt based solely on its disbelief of any portion of his testimony. (See Tyler v. Cain (2001) 533 U.S. 656, 658-659; In re Winship (1970) 397 U.S. 358.) Thevalidity of a permissive inference must be determined by review of the application ofthe inference to the specific facts of the case. (Ulster County v. Allen (1979) 442 U.S. 140, 162-163.) For a permissive inference to be constitutional and notshift the prosecution’s burden ofproof, there mustbe a rational connection between the facts found by the jury from the evidence andthe facts inferred by the jury pursuant to the instruction. (Jd. at p. 157; United States v. Gainey (1965) 380 U.S. 63, 66-67.) The due processclause ofthe Fourteenth Amendment“demandsthat even inferences — not just presumptions — be based on a rational connection between the facts proved andthefact to be inferred.” (People v. Castro (1958) 38 Cal.3d 301, 313; see also People v. Hannon (1977) 19 Cal.3d 588, 597.) This requisite “rational connection’”” exists only when thefact to be inferred is “‘more likely than not to flow from’” the basicfact. (Ulster County v. Allen, supra, 442 U.S.at p. 165, citations omitted.) In this case, it is reasonably likely that the instruction pursuant to CALJIC No. 2.62, which had no willfulness limitation as in CALJIC No. 158 2.03, created an irrational permissive inference. As explained in Section B, at pp. 153-157, ante, the inapplicable instruction together with the prosecutor’s argument permitted the jury first to conflate any statement by appellant that it disbelieved or rejected with a failure to explain or deny the prosecution’s evidence and then to concludethat appellant’s false statements made moreprobable the inferences unfavorable to appellant — specifically that appellant’s misstatements showed a consciousnessofguilt. Although inculpatory inferences arguably may be rational whenthe jury rejects a defendant’s testimony as willfully or intentionally false or misleading, the same doesnotholdtrue for false statements that result from inadvertent mistake or an honestfailure of recollection. Unintentionally false statements do notrationally increase the probability of the truth of the prosecution’s case and are notlogically connected to a defendant’s guilt. Thus, it cannot be said with “substantial assurance”(Ulster County v. Allen, supra, 442 U.S.at p. 166, fn. 28) that appellant’s consciousnessofguilt flows from his failure to accurately recall how hegotto the Pacific Grand Hotel on December22 or how,exactly, Lefty came to accompany appellant to McPherson’s room on December24. Butthe erroneousinstruction here permitted the jury to reach precisely this conclusion. In this way, the giving of CALJIC No. 2.62 created an irrational permissive inference that violated appellant’s due processrights because“there is no rational way the trier could make the connection permitted by the inference.” (/d. at p. 157.) The decision in People v. Saddler, supra, 24 Cal.3d 671, does not answerappellant’s constitutional claim. In Saddler, this Court rejected the argumentthat CALJIC No. 2.62 “denies a defendant the presumption of 3999innocence andplacesin its stead an ‘inference of guilt’” in violation of due process. (People v. Saddler, supra, 24 Cal.3d at pp. 679-681.) In 159 upholding the constitutionality of CALJIC No. 2.62 as applied to a testifying defendant’s failure to explain or deny the evidence against him, the Court noted that “[n]o inference can be drawn if defendant does not have the knowledge necessary” or cannot “reasonably be expected to explain or deny”the evidence against him. (/d. at p. 680.) The Court also pointed to the instruction’s cautionary directive in the second paragraph regarding the prosecution’s burden of proof. (/bid.) Finally, the Court held that CALJIC No. 2.62 “may be given in an appropriate case.” (dd.atp. 681.) Theinstruction, however, was not appropriate here. Unlike the rational permissive inference from the appropriate application of CALJIC No. 2.62 in Saddler, the permissive inference resulting from the erroneous application of CALJIC No. 2.62 here wasnot rational. Andthe irrationality of the inference is the crux of appellant’s due process claim. The general assertion in CALJIC No. 2.62 that the prosecution must prove appellant’s guilt beyond a reasonable doubt may afford a defendant an additional safeguard whenthe instruction is given correctly. But that directive does not remedy the jury’s useoftheirrational inference, as permitted by the instruction in this case, in finding that the prosecution carried its burden ofproof. This constitutional error is to be judged under the Chapman (Chapmanv. California, supra, 386 U.S.at p. 24) prejudice standard which places the burden on the prosecution to prove the error was harmless beyond a reasonable doubt. For all the reasons given in Section B ofthe argument, the giving of the erroneousinstruction was prejudicial, and the judgmentshould be reversed. 160 Vil A SERIES OF GUILT PHASE INSTRUCTIONS UNDERMINED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBTIN VIOLATION OF APPELLANT’S RIGHTS TO DUE PROCESS, A TRIAL BY JURY, AND RELIABLE VERDICTS, AND REQUIRES REVERSAL OF THE JUDGMENT Dueprocess “protects the accused against conviction except upon proofbeyond a reasonable doubt of every fact necessary to constitute the crime with which heis charged.” (dn re Winship, supra, 397 U.S.at p. 364; accord, Cage v. Louisiana (1990) 498 U.S. 39, 39-40; People v. Roder (1983) 33 Cal.3d 491, 497.) The reasonable doubt standard is the “bedrock ‘axiomatic and elementary’ principle” (Jn re Winship, supra at p. 363)at the heart of the right to trial by jury. (Sullivan v. Louisiana, supra, 508 U.S.at p. 278.) Jury instructions violate these constitutional requirements if “there is a reasonablelikelihoodthat the jury understood [them] to allow conviction based on proofinsufficient to meet the Winship standard” of proofbeyond a reasonable doubt. (Victor v. Nebraska (1994) 511 US.1, 6.) Thetrial court instructed the jury with CALJIC Nos. 2.02, 2.21.2, 2.22, 2.27, 2.51, 2.62 and 8.20. (KX CT 2882, 2889, 2890, 2992, 2993, 2994, 3008.) These instructions violated the aboveprinciples and thereby deprived appellant of his constitutional rights to due process (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 & 15) andtrial by jury (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16). (Sullivan v. Louisiana (1993) 508 U.S. 275, 278; Carella v. California (1989) 491 U.S. 263, 265.) They also violated the fundamental requirementfor reliability in a capital case by allowing appellant to be convicted without the prosecution having to present the full measure of proof. (U.S. Const., 8th & 14th Amends.; 161 Cal. Const., art. I, § 17; Beck v. Alabama (1980) 447 U.S. 625, 637-638.) Becausethe instructionsviolated the federal Constitution in a manner that can never be “harmless,” the judgment in this case must be reversed. (Sullivan v. Louisiana, supra, 508 U.S.at p. 275.) Appellant recognizes that this Court has previously rejected many of these claims. (See, e.g., People v. Cleveland (2004) 32 Cal.4th 704, 750- 751; People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224; People v. Crittenden (1994) 9 Cal.4th 83, 144.) Nevertheless, he raises them here in order for this Court to reconsider those decisions and in order to preserve the claims for federal review if necessary.” A. The Instruction On Circumstantial Evidence Under CALJIC No. 2.02 Undermined The Requirement Of Proof Beyond A Reasonable Doubt The jury wasinstructed with CALJIC No. 2.02 that if one interpretation of the evidence regarding mental state “appears to be reasonable, you must accept[it] and reject the unreasonable”interpretation. (X CT 2882; 11 RT 1426-1427.) In effect, the instruction informedthe jurors that if appellant reasonably appearedto be guilty, they were to find him guilty as chargedoffirst degree premeditated murderevenifthey entertained a reasonable doubt as to whether he had premeditated the killings. The defects in this instruction were particularly damaging here where the prosecution’scase rested almost exclusively on circumstantial evidence and appellant countered with his own version ofwhat happened. © In People v. Schmeck (2005) 37 Cal.4th 240, 303-304, this Court ruled that “routine” challenges to the state’s capital-sentencing statute will be considered “fully presented” for purposes of federal review by a summary description of the claims. This Court has not indicated that repeatedly-rejected challenges to standard guilt phase instructions similarly will be deemed “fairly presented” by an abbreviated presentation. Accordingly, appellant more fully presents the claims in this argument. 162 Theinstruction undermined the reasonable doubt requirement in two separate but related ways, violating appellant’s constitutional rights to due process (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 & 15), trial by jury (U.S. Const., 6th & 14th Amends.; Cal. Const., art. 1, § 16), anda reliable capital trial (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, § 17). (See Sullivan v. Louisiana, supra, 508 U.S.at p. 278; Carella v. California (1989) 491 U.S. 263, 265; Beck v. Alabama, supra, 447 U.S.at 638.)"! First, the instruction compelled the jury to find appellant guilty on both counts of murderandto find the sole special circumstance of multiple murderto be true using a standard lower than proofbeyond a reasonable doubt. (Cf. In re Winship, supra, 397 U.S.at p. 364.) The instruction directed the jury to convict appellant based on the appearance of reasonableness: the jurors were told they “must” accept an incriminatory interpretation of the evidenceifit “appear[ed]” to be “reasonable.” (X CT 2883.) However, an interpretation that appears reasonable is not the same as the “subjective state ofnear certitude” required for proofbeyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 315; see Sullivan v. Louisiana, supra, 508 U.S.at p. 278 [“It would notsatisfy the Sixth Amendmentto have a jury determine that the defendant is probably guilty”].) Thus, the instruction improperly required conviction and a true finding of the special circumstances, and findings of fact necessary to support those verdict, on a degree ofproofless than the constitutionally- “| Although defense counsel did not object to the giving of CALJIC No.2.02, the claimed errors are cognizable on appeal. Instructionalerrors are reviewable even without objection if they affect a defendant’s substantial rights. (Pen. Code, § 1259; see People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7; People v. Jones (1998) 17 Cal.4th 279, 312.) 163 mandated one. Second, the circumstantial evidence instruction required the jury to draw an incriminatory inference when such an inference appeared “reasonable.” In this way, the instruction created an impermissible mandatory inference that required the jury to accept any reasonable incriminatory interpretation of the circumstantial evidence unless appellant rebutted it by producing a reasonable exculpatory interpretation. Mandatory presumptions, even onesthat are explicitly rebuttable, are unconstitutionalifthey shift the burden ofproof to the defendant on an element of the crime. (Francis v. Franklin (1985) 471 U.S. 307, 314-318; Sandstrom v. Montana(1979) 442 U.S. 510, 524.) Here,the instruction plainly told the jurors that if only one interpretation of the evidence appeared reasonable, “you must accept the reasonable interpretation and reject the unreasonable.” (X CT 2883.) In People v. Roder (1983) 33 Cal.3d 491, 504, this Court invalidated an instruction which required the jury to presumethe existence of a single elementofthe crime unless the defendant raised a reasonable doubt as to the existence of that element. Accordingly, this Court should invalidate the instructions given in this case, which required the jury to presumeall elements of the crimes supported by a reasonable interpretation of the circumstantial evidence unless the defendant produced a reasonable interpretation of that evidence pointing to his innocence. Theinstruction had the effect ofreversing, orat least significantly lightening, the burden ofproof, since it required the jury to find appellant guilty of first degree murder as charged unless he came forward with evidence reasonably explaining the incriminatory evidence put forward by the prosecution. The jury may have found appellant’s defense unreasonable ~ but still have harbored serious questions about the sufficiency prosecution’s 164 case. Nevertheless, under the erroneousinstruction the jury was required to convict appellant if he “reasonably appeared” guilty ofmurder, even ifthe jurors still entertained a reasonable doubtofhis guilt. The instruction thus impermissibly suggested that appellant was required to present, at the very least, a “reasonable” defense to the prosecution case when,in fact, “[t]he accused has no burden ofproofor persuasion, even as to his defenses.” (People v. Gonzales (1990) 51 Cal.3d 1179, 1214-1215, citing Jn re Winship, supra, 397 U.S.at p. 364, and Mullaney v. Wilbur (1975) 421 U.S. 684.) For these reasons, there is a reasonable likelihood the jury applied the circumstantial evidence instructionsto find appellant guilty ofboth chargesof first degree murder and true finding on the special circumstance on a standard whichwasless than the federal Constitution requires. B. The Instructions Pursuant To CALJIC Nos. 2.21.2, 2.22, 2.27, 2.51, And 8.20 Also Vitiated The Reasonable Doubt Standard Thetrial court gave five other standard instructions which magnified the harm arising from the erroneouscircumstantial evidence instructions, and individually and collectively diluted the constitutionally mandated reasonable doubt standard — CALJIC Nos. 2.21.2 (witness wilfully false), 2.22 (weighing conflicting testimony), 2.27 (sufficiency of testimony of one witness), 2.51 (motive), and 8.20 (deliberate and premeditated murder). (X CT 2889, 2889, 2992, 2993, 3007-3008; 11 RT 1430-1433, 1440-1441.) Each ofthoseinstructions, in one way or another, urged the jury to decide material issues by determining which side had presentedrelatively stronger evidence. Thus, the instructions implicitly replaced the “reasonable doubt” standard with the “preponderance of the evidence” test, and vitiated the 165 constitutional prohibition against the conviction of a capital defendant upon any lesser standard of proof. (Sullivan v. Louisiana, supra, 508 U.S.at p. 278; Cage v. Louisiana, supra, 498 U.S.at pp. 39-40; In re Winship, supra, 397 USS.at p. 364.)” The jury was instructed with former CALJIC No. 2.51 as follows: Motive is not an elementofthe crimes charged and need not be shown. However, you may consider motive or lack of motive as a circumstancein this case. Presence ofmotive maytendto establish guilt. Absence ofmotive maytendto establish innocence. You will therefore give its presence or absence,as the case maybe, the weight to which youfindit to be entitled. (X CT 2993; 11 RT 1432.) This instruction allowed the jury to determine guilt based on the presence of alleged motive alone and shifted the burden ofproof to appellant to show absence ofmotive to establish innocence, thereby lessening the prosecution’s burden of proof. As a matter of law, however, it is beyond question that motive alone, which is speculative,is insufficient to prove guilt. Due process requires substantial evidence of guilt. (Jackson v. Virginia, supra, 443 U.S.at p. 320 [a “mere modicum”of evidenceis not sufficient]; see United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104 , 1108-1109 [motive based on poverty is insufficient to prove theft or robbery].) The motive instruction stood in contrast to CALJIC No. 2.62, which told the jury that appellant’s failure to deny or explain the evidence against him was “notsufficient by itself to prove guilt.” Containing no similar admonition, the motive instruction thus appeared to include an intentional omission allowing the jury to determine guilt based on motive alone. #2 Although defense counsel failed to object to these instructions, appellant claimsarestill reviewable on appeal. (See p. 150, fn. 36, ante, whichis incorporated by reference here.) 166 Indeed, the jurors reasonably could have concluded that if motive were insufficient byitself to establish guilt, the instruction obviously would say so. (See People v. Castillo (1997) 16 Cal.4th 1009, 1020 (conc. opn. of Brown,J.) [deductive reasoning underlying the Latin phrase inclusio unius est exclusio alterius could mislead a reasonable juror as to the scope of an instruction]; People v. Dewberry (1959) 51 Cal.2d 548, 557 [failure to instruct on effect of a reasonable doubt as between any ofthe included offense resulted in erroneous implication that rule requiring finding ofguilt of lesser offense applied only as betweenfirst and second degree murder]; People v. Salas (1976) 58 Cal.App.3d 460, 474 [when a generally applicable instruction is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may beprejudicial error].) Here, the prosecution’s heavy reliance on evidence ofmotive highlighted the omission in CALJIC No.2.51, increasing the likelihood that the jury would have understood that motive alone could establish guilt.” CALJIC No. 2.21.2 lessened the prosecution’s burden ofproof. It authorized the jury to reject the testimony of a witness “willfully false in one materialpart of his or her testimony”unless,“from all the evidence, [they believed] the probability of truth favors his or her testimony in other particulars.” (X CT 2889; 11 RT 1430.) That instruction lightened the prosecution’s burden ofproofby allowing the jury to credit prosecution 3 Although defense counsel requested CALJIC 2.51 (K CT 2860), the invited-error doctrine does not preclude review ofthis claim. Because the prosecution’scase relied on motive evidence, the instruction would have been given even in the absenceofthe defense request. (See 1 Witkin and Epstein, Cal. Criminal Law (2d ed. 1988) § 100.) Thus, the defense request did not cause the error. (People v. Graham (1969) 71 Cal.2d 303, 317-319.) 167 witnesses if their testimony had a “mere probability of truth.” (See People v. Rivers (1993) 20 Cal.App.4th 1040, 1046 [instruction telling the jury that a prosecution witness’ testimony could be accepted based on a “probability” standard is “somewhat suspect”].) The essential mandate of Winship andits progeny — that each specific fact necessary to prove the prosecution’s case must be proven beyond a reasonable doubt — is violated if any fact necessary to any element of an offense can be proven by testimonythat merely appeals to the jurors as more “reasonable,” or “probably true.” (See Sullivan v. Louisiana, supra, 508 US.at p. 278; In re Winship, supra, 397 USS.at p. 364.) Furthermore, CALJIC No. 2.22 provided as follows: You are not bound to decide an issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser numberor other evidence, which appeals to your mind with more convincing force. You maynot disregard the testimony ofthe greater numberofwitnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the numberofwitnesses whohavetestified on the opposing sides. Thefinaltest is not in the relative number of witnesses, but in the convincing force ofthe evidence. (X CT 2890; 11 RT 1430-1431.) The instruction specifically directed the jury to determine each factual issue in the case by deciding which version of the facts was more credible or more convincing. Thus, the instruction replaced the constitutionally-mandated standard of “proofbeyond a reasonable doubt” with one indistinguishable from the lesser “preponderance ofthe evidence standard.” As with CALJIC No.2.21.2, the Winship requirement ofproofbeyond a reasonable doubtis violated by instructing that any fact necessary to any element of an offense could be proven by testimony that merely appealed to the jurors as having somewhat 168 greater “convincing force.” (See Sullivan v. Louisiana, supra, 508 U.S.at pp. 277-278; In re Winship, supra, 397 U.S.at p. 364.) CALJIC No.2.27, regarding the sufficiency of the testimony of a single witness to prove a fact (X CT 2992; 11 RT 143 1), waslikewise flawed. The instruction erroneously suggested that the defense, as well as the prosecution, had the burden ofproving facts. The defendant is only required to raise a reasonable doubt about the prosecution’s case, and cannotbe requiredto establish or prove any “fact.” (People v. Serrato (1973) 9 Cal.3d 753, 766.) Finally, CALJIC No. 8.20, which defines premeditation and deliberation, misled the jury regarding the prosecution’s burden ofproof. Theinstruction told the jury that the necessary deliberation and premeditation “must have been formed uponpre-existing reflection and not under a suddenheat ofpassion or other condition precluding the idea of deliberation. .. .” (X CT 3007-3008, 11 RT 1440-1441 .) In that context, the word “precluding” could be interpreted to require the defendant to absolutely eliminate the possibility ofpremeditation, as opposedto raising a reasonable doubt. (See People v. Williams (1969) 71 Cal.2d 614, 631-632 eee[recognizing that “preclude” can be understood to mean ““‘absolutely prevent’’’].) “Tt is critical that the moral force of the criminal law not be diluted by a standard ofproofthat leaves people in doubt whether innocent men are being condemned.” (/n re Winship, supra, 397 U.S.at p. 364.) Each of the disputed instructions here individually served to contradict and impermissibly dilute the constitutionally- mandated standard under which the prosecution must prove each necessary fact of each element of each offense “beyond a reasonable doubt.” In the face of so manyinstructions permitting conviction upon a lesser showing, no reasonable juror could 169 have been expected to understandthat he or she could notfind appellant guilty unless every element ofthe offenses was proven bythe prosecution beyond a reasonable doubt. Theinstructions challenged here violated appellant’s constitutionalrights to due process (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 & 15), trial by jury (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16), and a reliable capital trial (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, § 17). C. The Court Should Reconsiderits Prior Rulings Upholding the Defective Instructions Although eachofthe challenged instructions violated appellant’s federal constitutional rights by lessening the prosecution’s burden,this Court has repeatedly rejected constitutional challenges to manyofthe instructions discussed here. (See e.g., People v. Cleveland (2004) 32 Cal.4th 704, 750-751 [CALJIC Nos. 2.22 and 2.51]; People v. Riel (2000) 22 Cal.4th 1153, 1200 [false testimony and circumstantial evidence instructions]; People v. Crittenden (1994) 9 Cal.4th 83, 144 [circumstantial evidenceinstructions]; People v. Noguera (1992) 4 Cal.4th 599, 633-634 [CALJIC Nos. 2.01, 2.02, 2.27)]; People v. Jennings (1991) 53 Cal.3d 334, 386 [circumstantial evidenceinstructions].) While recognizing the shortcomings of some ofthose instructions, this Court has consistently concludedthat the instructions must be viewed “as a whole,” and that when so viewedtheinstructions plainly mean that the jury should reject unreasonable interpretations of the evidence and give the defendant the benefit of any reasonable doubt, and that jurors are not misled when they are also instructed with CALJIC No. 2.90 regarding the presumption of innocence. The Court’s analysis is flawed. First, what this Court characterizes as the “plain meaning”ofthe instructions is not what the instructions say. (See People v. Jennings, 170 supra, 53 Cal.3d at p. 386.) The question is whetherthere is a reasonable likelihood the jury applied the challengedinstructions in a way that violates the Constitution (Estelle v. McGuire, supra, 502 U.S.at p. 72), and there certainly is a reasonablelikelihood that the jury applied the challenged instructions according to their express terms. Second, this Court’s essential rationale — that the flawed instructions are “saved” by the language ofCALJIC No. 2.90 — requires reconsideration. (See People v. Crittenden, supra, 9 Cal.4th at p. 144.) An instruction which dilutes the beyond-a-reasonable-doubt standard ofproof on a specific point is not cured by a correct general instruction on proof beyonda reasonable doubt. (United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1256; see generally Francis v. Franklin, (1985) 471 U.S. 307, 322 [“Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity”]; People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1075, citing People v. Westlake (1899) 124 Cal. 452, 457 [if an instruction states an incorrect rule of law, the error cannot be cured by giving a correct instruction elsewhere in the charge]; People v. Stewart (1983) 145 Cal.App.3d 967, 975 [specific jury instructions prevail over general ones].) “It is particularly difficult to overcome the prejudicial effect of a misstatement whenthe badinstructionis specific and the supposedly curative instruction is general.” (Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 395.) Furthermore, nothing in the challenged instructions, as they were given in this case, explicitly told the jurors that those instructions were qualified by the reasonable doubtinstruction. It is just as likely that the jurors concluded that the reasonable doubt instruction was qualified or explained by the other instructions which contain their own independent references to reasonable doubt. 171 D. Reversal is Required Because the erroneouscircumstantial evidence instruction required conviction on a standard ofproofless than proofbeyond a reasonable doubt, its delivery wasa structural error whichis reversible per se. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 280-282.) At the very least, becauseall of the instructions violated appellant’s federal constitutional rights, reversal is required unless the prosecution can show thatthe error was harmless beyond a reasonable doubt. (Carella v. California; supra, 491 US.at pp. 266-267.) The prosecution cannot make that showing here, becauseits proof of appellant’s guilt for the murders was weak for all of the reasons previously discussed. Given the dearth of direct evidence, the instructions on circumstantial evidence werecrucialto the jury’s determination ofguilt. | Becausetheseinstructions distorted the jury’s consideration and use of circumstantial evidence, and diluted the reasonable doubt requirement, the reliability of the jury’s findings is undermined. Further, CALJIC No. 2.51 permitted the prosecution to only establish motive for the jury to conclude that appellant was guilty. The instructional error wasparticularly prejudicial in this case given that the prosecution’s theory of appellant’s guilt for the murders of Harding and Jackson was based on motive. (11 RT 1410-1412.) Theinstruction allowed the jury to convict appellant on the motive evidence alone andthis error, alone or considered in conjunction with all the other instructionalerrors set forth in this brief, requires reversal of appellant’s conviction. The dilution of the reasonable-doubt requirement by the guilt phase instructions must be deemedreversible error no matter what standard of prejudice is applied. (See Sullivan v. Louisiana, supra, 508 U.S.at pp. 278- 282; Cage v. Louisiana, supra, 498 U.S.at p. 41; People v. Roder, supra, 172 33 Cal.3d at p. 505.) Accordingly, appellant’s murder convictions, special circumstancefinding, and death sentence mustbe reversed. / // 173 vill 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 Peoplev. Schmeck (2005) 37 Cal.4th 240, this Court held that what it considered to be “routine” challenges to California’s punishment scheme will be deemed “fairly presented” for purposes of federal review “even when the defendant does no more than (i) identify the claim in the context of the facts, (ii) note that we previously have rejected the sameor a similar claim in a prior decision, and (iii) ask us to reconsiderthat 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 supplemental briefing. A. The Broad Application Of Section 190.3 Subdivision (a) Violated Appellant’s Constitutional Rights Section 190.3 subd. (a) directs the jury to consider in aggravation the “circumstancesofthe crime.” (CALJIC No. 8.85; X CT 3073-3074.) Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstance of the crime, even those that, from case to case, reflect starkly opposite circumstances. Of equal importanceis the use offactor (a) to embrace facts which coverthe entire 174 spectrum of circumstancesinevitably present in every homicide; facts such as the age ofthe victim, the age of the defendant, the methodofkilling, the motive for the killing, the time of the killing, and the location ofthe killing. In the instant case, the prosecutor repeatedly argued that the method of killing (16 RT 1877, 1879, 1886-1888) and appellant’s alleged motivation for the killings (16 RT 1889) were aggravating factors. This Court has neverapplied any limiting construction to factor (a). (People v. Blair (2005) 36 Cal.4th 686, 7494 [“circumstances of crime”not required to have spatial or temporal connection to crime].) Asa result, the conceptof“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 enough in 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 U.S. 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 “circumstances of the crime” within the meaning of section 190.3 in the penalty phaseresults in the arbitrary and capricious imposition of the death penalty. (People v. Kennedy (2005) 36 Cal.4th 595, 641; People v. Brown (2004) 34 Cal.4th 382, 401.) Appellant urges the Court to reconsider this holding. 175 B. The Death Penalty Statute And Accompanying Jury Instructions Fail To Set Forth The Appropriate Burden OfProof 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 (CALJIC Nos. 8.86, 8.87). (People v. Anderson (2001) 25 Cal.4th 543, 590; People v. Fairbank (1997) 16 Cal.4th 1223, 1255; see People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are moral and not “susceptible to a burden-of-proof quantification”].) In conformity with this standard, appellant’s jury was nottold that it had to find beyond a reasonable doubt that aggravating factors in this case outweighed the mitigating factors before determining whether or not to impose a death sentence. (X CT 3073-3074, 3077-3078.) Apprendi v. New Jersey (2000) 530 U.S. 466, 478, Blakely v. Washington (2004) 542 U.S. 296, 303-305, and Ring v. Arizona (2002) 536 U.S. 584, 604, now require any fact that is used to support an increased sentence (other than a prior conviction) be submitted to a 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: the jury had to determine whether any mitigating or aggravating factors were present; the jury had to decide whether the aggravating factors outweighed the mitigating factors; and the jury had to decide whether the aggravating factors were so substantial as to make death an appropriate punishment. (CALJIC No. 8.88; X CT 3077-3078.) Because these additional findings were required before the jury could impose the death sentence, Ring, 176 Apprendi and Blakely require that each of these findings be made beyond a reasonable doubt. The court failed to so instruct the jury and thusfailed to explain the general principles of law “necessary for the jury’s understanding ofthe 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 ofApprendi (People v. Anderson (2001) 25 Cal.4th 543, 589, fn. 14), and does not require factual findings (People v. Griffin (2004) 33 Cal.4th 536, 595). The Court has rejected the argument that Apprendi, Blakely, and Ring imposea reasonable doubt standard on California’s capital penalty phase proceedings. (People v. Prieto (2003) 30 Cal.4th 226, 263.) Appellant urges the Court to reconsider its holding in Prieto so that California’s death penalty scheme will comport with the principles set forth in Apprendi, Ring, and Blakely. Setting aside the applicability of the Sixth Amendmentto California’s penalty phase proceedings, appellant contends that the sentencer of a person facing the death penalty is required by due process and the prohibition against cruel and unusual punishmentto be convinced beyond a reasonable doubt not only that the factual basesfor its 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 doubt that the aggravating factors outweigh the mitigating factors and that death is the appropriate penalty. (People v. Blair (2005) 36 Cal.4th 686, 753.) Appellant requests that the Court reconsiderthis holding. 177 2. Some BurdenofProof Is Required, or the Jury Should Have Been Instructed That There Was No Burden of Proof State law provides that the prosecution alwaysbears the burden of proofin a criminal case. (Evid. Code, § 520.) Evidence Code section 520 creates a legitimate state expectation as to the way a criminal prosecution will be decided and appellant is therefore constitutionally entitled under the Fourteenth Amendmentto the burden ofproofprovided forby thatstatute. (Cf. Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [defendant constitutionally entitled to procedural sentencing protections afforded by state law].) Accordingly, appellant’s jury should have been instructed that the State had the burden ofpersuasion regarding the existence of any factor in aggravation, whether aggravating factors outweighed mitigating factors, and the appropriateness of the death penalty, and that it was presumedthat life without parole was an appropriate sentence. CALJIC Nos. 8.85 and 8.88, the instructions given here (X CT 3973- 3974, 3077-3078), fail to provide the jury with the guidancelegally required for administration of the death penalty to meet constitutional minimum standards,in violation of the Sixth, Eighth, and Fourteenth Amendments. This Court has held that capital sentencing is not susceptible to burdens ofproof or 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 federal Constitution and thus urges the court to reconsider its decisions in Lenart and Arias. Even assuming it were permissible not to have any burden ofproof, | 178 the trial court erred prejudicially by failing to articulate that to the jury. (Cf. People v. Williams (1988) 44 Cal.3d 883, 960 [upholding jury instruction that prosecution had no burden ofproof in penalty phase under 1977 death penalty law ].) Absent such an instruction, there is the possibility that a juror would vote for the death penalty because of a misallocation of a nonexistent burden of proof. 3. Appellant’s Death Verdict Was Not Premised on Unanimous Jury Findings a. Aggravating Factors It violates the Sixth, Eighth, and Fourteenth Amendments to impose a death sentence when there is no assurance the jury, or even a majority of the jury, ever found a single set of aggravating circumstances that warranted the death penalty. (See Ballew v. Georgia (1978) 435 U.S. 223, 232-234; Woodsonv. North Carolina (1976) 428 U.S. 290, 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. (See People v. Prieto, supra, 30 Cal.4th at p. 275.) Appellant asserts that Prieto was incorrectly decided, and application of the Ring reasoning mandates jury unanimity under the overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. “Jury unanimity ... is an accepted, vital mechanism to ensurethat real and full deliberation occurs in the jury room, andthat the jury’s ultimate decision will reflect the conscience of the community.” McKoy v. North Carolina (1990) 494 U.S. 433, 452 (conc. opn. ofKennedy,J.).) Thefailure to require that the jury unanimously find the aggravating factors true also violates the equal protection clause ofthe federal 179 Constitution. In California, when a criminal defendant has been charged with special allegations that may increase the severity of his sentence, the jury must rendera separate, unanimousverdict on the truth of such allegations. (See, e.g., Pen. Code, § 1158a.) Since capital defendants are entitled to more rigorous protections than those afforded noncapital defendants (see Mongev. California (1998) 524 U.S. 721, 732; Harmelin v. Michigan (1991) 501 U.S. 957, 994) — and, since providing moreprotection to a noncapital defendant than a capital defendant would violate the Equal Protection Clause of the Fourteenth Amendment(see e.g., Myers v. YIst (9th Cir. 1990) 897 F.2d 417, 421) — it follows that unanimity with regard to aggravating circumstancesis constitutionally required. To apply the requirement to an enhancementfinding that may carry only a maximum punishmentofone year in prison, but not to a finding that could have “a substantial impact on the jury’s determination whether the defendant should live or die” (People v. Medina (1995) 11 Cal.4th 694, 763-764), would by its inequity violate the equal protection clause of the 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 guarantee of a trial by jury. Appellant asks the Court to reconsider Taylor and Prieto and require jury unanimity as mandated by the federal Constitution. b. Unadjudicated Criminal Activity Appellant’s jury was not instructed that prior criminality had to be found true by a unanimousjury; nor is such an instruction generally provided for under California’s sentencing scheme. Infact, the jury was instructed that unanimity was not required. (CALJIC No. 8.87; X CT 3076.) Consequently, any use of unadjudicated criminal activity by a 180 memberofthe jury as an aggravating factor, as outlined in Penal Code section 190.3 subd. (b), violates due process and the Sixth, Eighth, and Fourteenth Amendmentsto the federal constitution, rendering a death sentence unreliable. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578 [overturning death penalty basedin part on vacated prior conviction].) This Court has routinely rejected this claim. (People v. Anderson (2001) 25 Cal.4th 543, 584-585.) Here, the prosecution presented extensive evidence regarding unadjudicated criminalactivity allegedly committed by appellant (12 RT 1510-1569; 13 RT 1572-1610, 1616-1633; 14 RT 1642-1731) and devoted a considerable portion ofits closing argument to arguing these alleged offenses (16 RT 1879-1885, 1890-1895, 1908-1909). The United States Supreme Court’s recent decisions in Blakely v. Washington, supra, 542 U.S. 296, Ring v. Arizona, supra, 536 U.S. 584, and Apprendi v. New Jersey, supra, 530 U.S. 466, confirm that under the due processclause 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 unanimous jury. In light of these decisions, any unadjudicated criminalactivity must be foundtrue beyond a reasonable doubt by a unanimousjury. Appellant is aware that this Court has rejected this very claim. (People v. Ward (2005) 36 Cal.4th 186, 221-222.) He asks the Court to reconsider its holdings in Anderson and Ward. 4. TheInstructions Caused the Penalty Determination to Turn on an Impermissibly Vague and Ambiguous Standard The question of whether to impose the death penalty upon appellant hinged on whetherthe jurors were “persuadedthat the aggravating circumstancesare so substantial in comparison with the mitigating 181 circumstancesthat it warrants death instead oflife without parole.” (X CT 3078.) The phrase “so substantial” is an impermissibly broad phrase that _ does not channelorlimit the sentencer’s discretion in a mannersufficient to minimize the risk of arbitrary and capricious sentencing. Consequently, this instruction violates the Eighth and Fourteenth Amendments becauseit creates a standard that is vague and directionless. (See Maynardv. Cartwright (1988) 486 U.S. 356, 362.) This Court has found that the use of this phrase does not render the instruction constitutionally deficient. (People v. Breaux (1991) 1 Cal.4th 281, 316, fn. 14.) Appellant asks this Court to reconsider that opinion. 5. TheInstructions Failed to Inform the Jury That the Central Determination Is Whether Death Is the Appropriate Punishment The ultimate question in the penalty phase of 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 them they can return a death verdictifthe aggravating evidence “warrants” death rather than life without parole. These determinations are not the same. To satisfy the Eighth Amendment“requirement of 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. On the other hand,jurors find death to be “warranted” when they find the existence of a special circumstance that authorizes death. (See People v. Bacigalupo (1993) 6 Cal.4th 457, 462, 464.) By failing to distinguish between these determinations, the jury instructions violate the Eighth and Fourteenth Amendments to the federal Constitution. This Court previously has rejected this claim (People v. Arias, supra, 182 13 Cal.4th at p. 171), but appellant urges this Court to reconsider those rulings. 6. The Instructions Failed to Inform the Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required to Return a Sentence OfLife Withoutthe Possibility of Parole Penal Codesection 190.3 directs a jury to imposea 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 address this proposition, but only informs the jury of the circumstances that permit the rendition of a death verdict. By failing to conform to the mandate of Penal Code section 190.3, the instruction violated appellant’s right to due process of law. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) This Court has held that since the instruction tells the jury that death can be imposedonlyifit finds that aggravation outweighs 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 disapproving instructions that emphasize the prosecution theory of the case while ignoring or minimizing the defense theory. (See People v. Moore (1954) 43 Cal.2d 517, 526-529; People v. Kelly (1980) 113 Cal.App.3d 1005, 1013-1014; see also People v. Rice (1976) 59 Cal.App.3d 998, 1004 [instructions required on every aspect of case].) It also conflicts with due processprinciples in that the nonreciprocity involved in explaining how a death verdict may be warranted, but failing to explain when an LWOPverdict is required,tilts the 183 balanceof forces in favor of the accuser and against the accused. (See Wardius v. Oregon (1973) 412 U.S. 470, 473-474.) 7. The Instructions Failed to Inform the Jurors that Even If They Determined That Aggravation Outweighed Mitigation, They Still Could Return a SentenceofLife Withoutthe Possibility of Parole | After the trial court instructed the jury at the penalty phase, appellant’s counsel requested an additional, clarifying instruction. He asked that “the jury be told by the court that although they mayfind that the aggravating circumstancesare substantial in comparison to the mitigating circumstances they can still impose a sentence oflife without the possibility ofparole.” (16 RT 1940.) Ruling that the point wasclear in the instructions, the trial court denied the request. (16 RT 1941.) Pursuant to CALJIC No.8.88, the jury was directed that a death judgmentcannot be returned unless the jury unanimously finds “that the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead oflife without parole.” Althoughthis finding is a prerequisite for a death sentence, it does not preclude a sentenceoflife without possibility ofparole. Under People v. Brown (1985) 40 Cal.3d 512, 541, the jury retains the discretion to return a sentenceoflife without the possibility of parole even when it concludes that the aggravating circumstancesare “so substantial” in comparison with the mitigating circumstances. Indeed, under California law, a jury may return a sentenceoflife withoutthe possibility of parole even in the complete absence of mitigation. (People v. Duncan (1991) 53 Cal.3d 955, 979.) Theinstructionsfailed to inform the jury of this option and thereby arbitrarily deprived appellant of a state-created liberty and life interest in violation of the due process clause of the Fourteenth Amendment. (Hicks v. 184 Oklahoma (1980) 447 U.S. 343, 346). The decisions in Boyde v. California (1990) 494 U.S. 370, 376-377 and Blystone v. Pennsylvania (1990) 494 U.S. 299, 307 do notforeclose this claim. In those cases, the High Court upheld, over Eighth Amendment challenges, capital-sentencing schemes that mandate death upon a finding that the aggravating circumstances outweigh the mitigating circumstances. That, however,is not the 1978 California capital-sentencing standard under which appellant was condemned. Rather, this Court in People v. Brown, supra, 40 Cal.3d at p. 541, held that the ultimate standard in California is the appropriateness of the penalty. After Boyde, this Court has continued to apply, and hasrefusedto 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.) Appellant urges the Court to reconsider these rulings. 8. The Instructions Violated the Sixth, Eighth and Fourteenth Amendments By Failing to Inform the Jury Regarding the Standard of Proof and Lack ofNeed for Unanimity As to Mitigating Circumstances The failure of the jury instructions to set forth a burden ofproof 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 way that prevents the consideration of constitutionally relevant evidence. (Boydev. 185 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 instruction regarding jury unanimity. Appellant’s jury wastold in the guilt phase that unanimity was required in order to acquit appellant of any charge or special circumstance. In the absence of an explicit instruction to the contrary, there is a substantial likelihood that the jurors believed unanimity was also required for finding the existence of mitigating factors. A requirement ofunanimity improperly limits consideration of mitigating evidencein violation of the Eighth Amendmentofthe federal Constitution. (See McKoy v. North Carolina, supra, 494 U.S. at pp. 442-443.) Had the jury been instructed that unanimity was required before mitigating circumstances could be considered, there would be no question that reversal would be required. (/bid.; see also Mills v. Maryland, supra, 486 U.S.at p. 374.) Becausethere is a reasonable likelihood that the jury erroneously believed that unanimity was required, reversal is also required here. In short, the failure to provide the jury with appropriate guidance was prejudicial and requires reversal of appellant’s death sentence since he was deprived ofhis rights to due process, equal protection and reliable capital-sentencing determination, in violation of the Sixth, Eighth, and Fourteenth Amendmentsto the federal Constitution. 9. The Penalty Jury Should Be Instructed on the Presumption of Life The presumption of innocenceis a core constitutional and adjudicative value that is essential to protect the accused in a criminalcase. (See Estelle v. Williams (1976) 425 U.S. 501, 503.) In the penalty phase of a capital case, the presumptionoflife is the correlate of the presumption of 186 innocence. Paradoxically, however, although the stakes are much higherat the penalty phase,there is no statutory requirementthat the jury be instructed as to the presumption oflife. (See Note, The Presumption of Life: A Starting Pointfor Due Process Analysis ofCapital Sentencing (1984) 94 Yale L.J. 351; cf. Delo v. Lashley (1983) 507 U.S. 272.) Thetrial court’s failure to instruct the jury that the law favorslife and presumeslife imprisonment without parole to be the appropriate sentence violated appellant’s right to due process oflaw (U.S. Const., Amend.14th), his right to be free from cruel and unusual punishmentandto havehis sentence determinedin a reliable manner (U.S. Const., Amends. 8th & 14th), and his right to the equal protection of the laws. (U.S. Const., Amend. 14th.) 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 has heldthat “the state may otherwise structure the penalty determinationasit seesfit,” so long as state law otherwise properly limits death eligibility. (Ud. at p. 190.) However, as the other sections of this brief demonstrate, this state’s death penalty law is remarkably deficient in the protections needed to insure the consistent and reliable imposition of capital punishment. Therefore, a presumption oflife instruction is constitutionally required. C. Failing To Require That the Jury Make Written Findings Violates Appellant’s Right To Meaningful Appellate Review Consistent with state law (People v. Fauber (1992) 2 Cal.4th 792, 859), appellant’s jury was not required to make any written findings during the penalty phaseofthe trial. The failure to require written or other specific findings by the jury deprived appellantofhis rights under the Sixth, Eighth, 187 and Fourteenth Amendments to 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.) This Court has rejected these contentions. (People v. Cook (2006) 39 Cal.4th 566, 619.) Appellant urges the Court to reconsiderits decisions on the necessity of written findings. D. TheInstructions To The Jury On Mitigating And Aggravating Factors Violated Appellant’s Constitutional Rights 1. The Useof Restrictive Adjectives in the List of Potential Mitigating Factors Theinclusionin the list ofpotential mitigating factors of such adjectives as “extreme” and “substantial” (see CALJIC No. 8.85, factors (d) and (g); X CT 3073-3074) acted as barriers to the consideration of mitigation in violation of the Sixth, Eighth, and Fourteenth Amendments to the federal constitution. (Mills v. Maryland (1988) 486 U.S. 367, 384; Lockett v. Ohio (1978) 438 U.S. 586, 604.) The Court has rejected this very argument(People v. Avila (2006) 38 Cal.4th 491, 614), but appellant urges reconsideration. 2. The Failure to Delete Inapplicable Sentencing Factors Manyofthe sentencing factors set forth in CALJIC No. 8.85 were inapplicable to appellant’s case. (16 RT 1877 [district attorney notes that factors, d, e, f, g, h, I and j were inapplicable to this case].) The trial court failed to omit those factors from the jury instructions (X CT 3073-3074), likely confusing the jury and preventing the jurors from making anyreliable determination of the appropriate penalty, in violation of defendant’s constitutional rights. Appellant asks the Court to reconsiderits decision in People v. Cook (2006) 36 Cal.4th 566, 618, and hold that the trial court 188 must delete any inapplicable sentencing factors from the jury’s instructions. 3. TheFailure 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 ofthe sentencing factors in CALJIC No. 8.85 were aggravating, which were mitigating, or which couldbe either aggravating or mitigating depending uponthe jury’s appraisal of the . evidence. (X CT 3073-3074.) The Court has upheld this practice. (People v. Hillhouse (2002) 27 Cal.4th 469, 509.) As a matter ofstate law, however, several of the factors set forth in CALJIC No. 8.85 — factors (d), (e), (f), (g), (h), and (j) — were relevant solely as possible mitigators. (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v. Davenport (1985) 41 Cal.3d 247, 288-289). Appellant’s jury, however, wasleft free to concludethat a “not” answeras to any ofthese “whetheror not” sentencing factors could establish an aggravating circumstance. Consequently, the jury wasinvited to aggravate appellant’s sentence based on non-existent or irrational aggravating factors precluding thereliable, 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 Impositions Of The Death Penalty The California capital sentencing scheme does not require that either the trial court or this Court undertake a comparison between this and other similar cases regardingtherelative proportionality of the sentence imposed, 189 i.e., inter-case proportionality review. (See People v. Fierro (1991) 1 Cal.4th 173, 253.) The failure to conduct inter-case proportionality review violates the Sixth, Eighth, and Fourteenth Amendmentprohibitions against proceedings conducted in a constitutionally arbitrary, unreviewable manner or that violate equal protection or due process. For this reason, appellant urges the Court to reconsiderits failure to require inter-case proportionality review in capital cases. | F. The California Capital Sentencing Scheme Violates The EqualProtection Clause California’s death penalty schemeprovides significantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimesin 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 preponderanceofthe evidence, and the sentencer mustset forth written reasons justifying the defendant’s sentence. (People v. Sengpadychith (2001) 26 Cal.4th 316, 325; California Rules of Court, rule 4.42, subds. (b), (e).) In a capital case, there is no burden ofproofat all, and the jurors need not agree on what aggravating circumstances apply nor provide any written findings to 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. 190 G. California’s Use Of The Death Penaty As A Regular Form Of PunishmentFalls Short Of International Norms This Court numeroustimeshas rejected the claim that the use of the death penalty at all, or, alternatively, that 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 (2006) 39 Cal.4th 566, 618-619; 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 punishmentagainst defendants who committed their crimesas juveniles (Roper v. Simmons (2005) 543 U.S. 551, 554), appellant urges the Court to reconsiderits previous decisions. i! HI 191 IX 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 As this Court hasstated, 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 Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [cumulative errors may so infect “thetrial with unfairness as to makethe resulting conviction a denial of due process”); Cooperv. Fitzharris (9th Cir. 1978) 586 F.2d 1325, 1333 (en banc) [“prejudice may result from the cumulative impact ofmultiple deficiencies”].)“* Reversal is required unlessit can be said that the combinedeffect ofall of the errors, constitutional and otherwise, was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 USS.at p. 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 Chapmanstandardto thetotality of the errors whenerrors of federal constitutional magnitude combined with other errors].) Where, “‘the government’s case is weak, a defendantis morelikely to be prejudiced by “ Indeed, where there are a numberoferrorsat trial, “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.) 192 the effect of cumulative errors.’ [Citation].” (Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 883.) This is just such a case. Aside from the erroneous termination of appellant’s self- representation, which requires a per se reversal, the series of guilt phase errors doomed appellant’s ability to fairly present his case to the jury, and denied him his right to a fair trial. Without overwhelming evidence of appellant’s guilt, the jury’s verdict turned on whoit found morecredible — the prosecution’s witnesses or appellant. Thetrial court’s errors had a cascading effect, undermining appellant’s ability to present his defense and improperly bolstering the prosecution’s case. Initially, the trial court’s error in requiring appellant to wear a stun belt materially impaired his ability to testify and adversely affected his credibility with the jury, which was central to his defense. The erroneous admission of gang expert testimony further undermined appellant’scredibility with the jury, encouraging the jury to see him as a violent, dangerous gang member who should not be trusted. The prosecutor seized on appellant’s demeanor whiletestifying, arguing that his nervousness showedhis lack of credibility, and that “the undercurrent” present while he testified evinced his underlying culpability for the capital murder charges. Thetrial court’s error in requiring appellant to wear a stun belt, which allowed the prosecutor to make this argument, was further amplified by thetrial court’s error in instructing pursuant to CALJIC No. 2.62, which, in the context of this case, encouragedthe jury to draw an inference of appellant’s consciousness of guilt from any portion of appellant’s testimonythatit rejected, without finding that appellant’s statements were willfully false or deliberately misleading. The trial court’s error in precluding the introduction of relevant, exculpatory defense evidence wasa further blow to appellant’s already 193 impaired ability to present his defense. The excluded evidence of Vashaun’s beating ofMeekey would havecast the case in an entirely different light, presenting both an alternate theory ofwho wasresponsible for the murders and impeachingthe prosecution’s theory that appellant’s anger at Harding arosefrom the theft of his drugs. The improperly- introduced gang evidencealso servedto bolster the prosecution’s case, imbuing the prosecution’s theory with the imprimatur of authority, while the defense was precluded from presenting any ofthe available evidence that would have impeachedthe prosecution’s theory. Adding further weight to the prosecution’s side of the scale was thetrial court’s erroneous admission ofthe improper and speculative expert testimony of forensic print specialist Wendy Cleveland. 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; Donnelly v. DeChristoforo, supra, 416 U.S.at p. 643.) Appellant’s conviction, therefore, must be reversed. (See Killian v. Poole (9th Cir. 2002) 282 F.3d 1204, 1211 [evenifno 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 deficienciesin trial - counsel’s representation requires habeasrelief as to the conviction]; United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1475-1476 [reversing heroin convictions for cumulative error]; People v. Holt (1984) 37 Cal.3d 436, 459 [reversing capital murder conviction for cumulative error].) In addition, the death judgmentitselfmust 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 194 considers prejudice of guilt phase instructional error in assessing that in penalty phase].) 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; see also People v. Brown (1988) 46 Cal.3d 432, 466 [error occurring at the guilt phase requires reversal of the penalty . determination if there is a reasonable possibility that the jury would have rendereda different verdict absent the error]; Jn re Marquez (1992) 1 Cal.4th 584, 605, 609 [an error may be harmlessat the guilt phase but prejudicial at the penalty phase].) Reversal of the death judgmentis mandated here because it cannot be shownthatthese errors had no effect on the penalty verdict. (See Hitchcock v. Dugger (1987) 481 U.S. 393, 399; Skipper v. South Carolina (1986) 476 U.S. 1, 8; Caldwell v. Mississippi (1985) 472 U.S. 320, 341.) Accordingly, the combined impactofthe variouserrors in this case requires reversal of appellant’s judgment and death sentence. HM H 195 CONCLUSION Forall ofthe reasons stated above, the convictions, special circumstance finding and sentence of death in this case must be reversed. DATED: January 10, 2007 Respectfully submitted, MICHAEL J. HERSEK State Public Defender Jo“BERNSTEIN Deputy State Public Defender Attomeys for Appellant 196 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE8.630(b)(2)) I, Alison Bernstein, am the Deputy State Public Defenderassignedto represent appellant, Frank Kalil Becerra, in this automatic appeal. I directed a memberofour staff to conduct a word countofthis briefusing our office’s computer software. On the basis of that computer-generated word count I certify that this brief is 58,103 words in length, excluding the tables andcertificate. | . Dated: January 10, 2007 Alison Bernstein 197 DECLARATION OF SERVICE Re: People v. Frank Kalil Becerra CA. Supreme Court No. 8065573 I, ROSEMARY MENDOZA,declare that I am over 18 years of age, and not a party to the within cause; my business address is 221 Main Street, 10th Floor, San Francisco, California 94105. I served a true copy ofthe attached: APPELLANT’S OPENING BRIEF on each ofthe following, by placing samein an envelope (or envelopes) addressed (respectively) as follows: Office of the Attorney General Albert Cesar Garber Attn: Susan Kim, D.A.G. Garber & Garber 300 South Spring Street 3550 Wilshire Blvd., #1136 North Tower, Suite 5001 Los Angeles, CA 90010 Los Angeles, CA 90013 Law Office of Chet Taylor Los Angeles County District Attorney 3250 Wilshire Blvd., Ste 1110 Attn: Elizabeth Ratinoff, D.D.A. Los Angeles, CA 90010 210 W. Temple St., #181017 Los Angeles, CA 90012 Addie Lovelace Frank Becerra Death Penalty Coordinator (Appellant) Los Angeles County Superior Court 210 West Temple, Rm. M-3 Los Angeles, CA 90012 Each said envelope was then, on January 10, 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 ofperjury that the foregoingis true and correct. Executed on January 10, 2007, at San Francisco, Califorpi