PEOPLE v. GONZALES (IVAN)Appellant's Opening BriefCal.January 22, 2007No. 8067353 supreecoun uy COIPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Defendant and Appellant. ) PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent, ) ) ' Vv. ) (San Diego County Superior ) Court No. SCD 114421) IVAN JOE GONZALES ) ) ) ) ) APPELLANT’S OPENING BRIEF Appeal from the Judgmentofthe Superior Court of the State of California for the County of San Diego (The Honorable Michael D. Wellington, Superior Court Judge) MICHAEL J. HERSEK State Public Defender ME COURT oFi=ED CRAIG BUCKSER eo Deputy State Public Defender JAN 22 2007 California Bar No. 194613 ick «. uiwion Clerk Frederick i. vii 221 Main Street, 10th Floor DEPUTY | San Francisco, California 94105-1906 Telephone: (415) 904-5600 Attorneys for Appellant od DE"PENALTY. TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....... 0.0... ccc cee eee XVili INTRODUCTION .... 00... 0cecttne teen enees 1 STATEMENT OF APPEALABILITY ...... 0.0.0.0: c cece eee eee 4 STATEMENT OF FACTS ...... 0.0.00 cece eee eee eens 4 I. Genny Rojas’s Arrival At Appellant And Veronica Gonzales’s Apartment .... 0.0... 00... cece eee eee 4 I. Genny Rojas’s Burn To Her Head ................0005. 5 I. Genny Rojas’s Appearance In Early July 1995 ........... 6 IV. The Events Of July 21,1995 ........ 0.ccs 6 A. Interactions with Appellant in the Afternoon and Evening ............. eee ee eee eee 6 B. Alicia Montes Hears Water Running in Appellant and Veronica Gonzales’s Bathroom ..... 7 C. Ivan Gonzales, Jr. Asks for Rubbing Alcohol ...... 8 D. Appellant and Veronica Gonzales Seek Help....... 8 E. Police Officers and Firefighters Arrive .......... 10 V. Appellant And Veronica Gonzales’s Arrests ............ 14 VI. The Police Investigation ......... 0... 0.0 e cece eens 14 VII. Appellant’s Interrogation ....... 0.0.0... 2 eee eee 16 VIII. Ivan Gonzales, Jr.’s Statements And Preliminary Hearing Testimony ..................000- 18 TABLE OF CONTENTS Page IX. Forensic Evidence ...... 2... ccc eee cas 22 X. Appellant And Veronica Gonzales’s Relationship ....... 24 XI. Appellant’s Character 2.0... 0.0... cece ee 30 XII. Discipline In Appellant’s Family Of Origin ............ 31 XIII. Discipline And Violence In Veronica Gonzales’s Family Of Origin .. 0...ceeens 32 XIV. The Impact Of Appellant’s And Veronica’s Backgrounds ......... 0c cece cece ee eee eee 33 XV. Genny Rojas’s Symbolic Meaning To Veronica GonzaleS 1.0... ccc eeeeee tenes 35 XVI Appellant’s Childhood ........0...0 000 0c cece ees 36 XVII. Appellant’s Children’s Love For Appellant ............ 38 XVIII. The Impact Appellant’s Execution Would Have On His Family ... 0.0...cceee 39 XIX. Appellant’s Exemplary Jailhouse Behavior............. 40 THE EXCLUSION OF EVIDENCE SUGGESTING THAT VERONICA GONZALES MASTERMINDED AND SOLELY PERPETRATED THE ABUSEINFLICTED UPON GENNY ROJAS VIOLATED THE EVIDENCE CODE AND APPELLANT’S CONSTITUTIONAL RIGHTS... 42 A. B. Facts And Procedural History ......... Leen eee eeeens 43 Appellant Proffered Relevant, Admissible Evidence ..... 48 il TABLE OF CONTENTS Page The Trial Court Erred When It Ruled That The Evidence Of Excessive Disciplinary Techniques In Veronica Gonzales’s Family Of Origin Constituted Character Evidence Barred By Evidence Code Section L10)ccceee eee eens 49 l. The Proffered Evidence Did Not Violate the Propensity Rule .. 6.0.0.0... eee eee eee 51 2. The Proffered Evidence Did Not Constitute Profile Evidence ... 0.0.0... cc cece eee eee 54 3. The Proffered Evidence Was Admissible Even Assuming Arguendo That the Jury Might Have Made an Improper Character Inference .......... 58 TheTrial Court’s Exclusion Of The Evidence Of Abuse In Veronica Gonzales’s Family Of Origin Violated Appellant’s Constitutional Rights ............. 61 1. The Erroneous Exclusion of the Evidence Violated Appellant’s Constitutional Rights to Present Defense Witnesses and to Present a Compete Defense ....... 0.0... cece cence ees 62 2. Assuming Arguendo That the Exclusion ofthe Evidence WasProper under Evidence Code Section 1101, the Trial Court’s Rulings Nonetheless Violated Appellant’s Constitutional Rights to Present Defense Witnesses and to Present a Compete Defense ................05. 75 3, The Exclusion of the Proffered Evidenceat the Penalty Phase Infringed Appellant’s Rights to Present Relevant Mitigating Evidence, to Rebut Aggravating Evidence, and to Have a Fair and Reliable Capital-Sentencing Hearing ............ 79 iii II ue TABLE OF CONTENTS Page E. The Exclusion Of The Proffered Evidence Was Extraordinarily Prejudicial And Requires That Appellant Be Given A New Trial ..........-.--0 0005) 83 1. The Murder Conviction must Be Vacated ........ 84 2. The Torture-murder Special Circumstance must Be Vacated .... 0... ccc ccc eee tenes 88 3. The Death Sentence must Be Vacated ........... 90 THE EXCLUSION OF EVIDENCE OF VERONICA GONZALES’S ANTIPATHY FOR MARY ROJAS VIOLATED THE EVIDENCE CODE AND APPELLANT'S CONSTITUTIONAL RIGHTS ........ 00. e eee eee 100 A. Facts And Procedural History .......... 000 e se eeeee 100 B. The Proffered Evidence Was Relevant And Erroneously Excluded ........ 0.0.0 cece eee eee 102 C The Exclusion Of The Proffered Evidence Infringed Appellant’s Constitutional Rights ............-...00. 105 D. The Exclusion Of The Proffered Evidence Was Prejudicial 22...iceeee 108 THE EXCLUSION AT THE PENALTY RETRIAL OF VERONICA GONZALES’S ADMISSIONS MADE AT THE CRIME SCENE IN THE MOMENTS FOLLOWING THE POLICE’S ARRIVAL WAS EVIDENTIARY ERROR THAT INFRINGED APPELLANT’S CONSTITUTIONAL RIGHTS 0.0 ccceeeeee ene 113 A. Facts And Procedural History ................0005-113 iv IV TABLE OF CONTENTS Page B. Although Veronica’s Admissions Were Hearsay, They Were Admissible as Spontaneous Statements And Declarations Against Interest Or Under The Catch-All Hearsay Exception ...... 00... cece cece eee eee eee 114 C, The Exclusion Of The Proffered Evidence Infringed Appellant’s Constitutional Rights ................45. 121 D. The Exclusion Of The Proffered Evidence Was Prejudicial 2.1... ccc eee nen eens 124 THE TRIAL COURT’S EXCLUSION OF APPELLANT’S CHILDREN FROM THE COURTROOM WAS ERRONEOUS AND VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS TO PRESENT MITIGATING EVIDENCE AND A PENALTY-PHASE DEFENSE AND TO HAVE A PUBLIC TRIAL .... 0...eee 127 A. Facts And Procedural History ..................005 127 B. The Denial Of Appellant’s Request To ExhibitHis Children To The Jury Was Error .......... 00.20 eee, 129 C. By Preventing The Children From Being Exhibited To Or Seen By The Jury, The Trial Court Violated Appellant’s Sixth, Eighth, And Fourteenth Amendment Rights 0...eeeect ee tne nee 137 D. The Trial Court Lacked The Authority To Bar The Children From The Courtroom; Alternatively, The Court Erred By Ruling That The Children’s Best Interests Required Precluding Appellant’s Children From Watching The Direct Examination Of Their Grandfather At The Penalty Phase .................. 138 VI TABLE OF CONTENTS Page E. By Barring Appellant’s Children From The Courtroom, The Trial Court Violated Appellant’s Sixth Amendment Right To A Public Trial ............--.5 141 F. The Trial Court’s Rulings And Concomitant Violations Of Appellant’s Constitutional Rights Require Vacating The Death Judgment ...... 0.0... 0c eee eee eee 145 THE EXCLUSION OF APPELLANT’S MITIGATING EVIDENCE VIOLATED THE EVIDENCE CODE AND APPELLANT’S CONSTITUTIONAL RIGHTS............- 149 A. Facts And Procedural History .......... 0000 eee eeuee 149 B. The Trial Court’s Rulings Were Erroneous ............ 150 C. The Evidentiary Rulings Infringed Appellant’s Constitutional Rights .... 0.0...cece 153 D. The Errors Were Prejudicial ........ 0.00. ee eee eee ee 154 THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR A NEW TRIAL DUE TO THE JURY’S FAILURE TO DELIBERATE ON AND FIND AN ESSENTIAL ELEMENT OF THE TORTURE- MURDER SPECIAL CIRCUMSTANCE ......... 00.0 e eee 156 A. Facts And Procedural History ...........0. 0.00 eaee 156 B. The Trial Court Erred In Denying Appellant’s Motion For A New Trial... ...... 0.2 eee eee eee eee 159 vi TABLE OF CONTENTS Page 1. Evidence Code Section 1150 Did Not Bar Consideration of Statements in Jurors’ Declarations That the Jury Did Not Deliberate on or Find the Intent-to-Kill Element of the Torture-Murder Special Circumstance, or of Jurors’ Statements to the Trial Court That the Jury Determined That Appellant Had Not Intended to Kill Genny ............-.-. 00000. 160 2. Even If This Court Construes the Jurors’ Statements to Concern Their Subjective Thought Processes, Evidence Code Section 1150 Should Not Render the Jurors’ Statements to the Court or the Subsequently Obtained Juror Declarations Inadmissible.................... 164 3. The Exclusion of Jurors’ Statements Regarding the Jury Finding, or Lack Thereof, of the Intent- to-Kill Element of the Torture-Murder Special Circumstance under Evidence Code Section 1150 Violated Appellant’s Constitutional Rights .. 170 4. The Jury’s Failure to Deliberate on or Find the Intent-to-Kill Element of the Torture-Murder Special Circumstance Demands that Appellant Be Given a New Trial .............-...-0000- 174 The Error Was Prejudicial .................-.-0000- 180 Alternatively, This Court Should Remand This Case For A New Determination Of The Motion For A New 0-)182 Vii Vil VI IX TABLE OF CONTENTS Page THE ERRONEOUS REMOVAL OF PROSPECTIVE JUROR NO. 504 FOR CAUSE AT THE PENALTY RETRIAL VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY AND REQUIRES REVERSAL OF APPELLANT’S DEATH SENTENCE 2.0... ceceeee teen ete 183 A. B. C. Facts And Procedural History ........... 00 e eee eeee 183 Prospective Juror No. 504 Was Death-Qualified; Therefore, The Trial Court’s Dismissal Of Her For Cause Infringed Appellant’s Rights To An Impartial JULYoo e eens 185 The Death Judgment Must Be Vacated ...........-.+.- 190 APPELLANT DID NOT VALIDLY WAIVE HIS RIGHT TO BE PRESENTAT EITHER THE INTRODUCTORY PROCEEDINGS WITH THE JURY VENIRES AT THE FIRST TRIAL AND THE PENALTY RETRIAL OR THE HARDSHIP VOIR DIRE AT THE FIRST TRIAL ........... 191 A. B. D. Facts And Procedural History .......... 000.0 e ee euee 191 Appellant’s Purported Waivers OfHis Presence At The Proceedings In The Jury Lounge Were Invalid ..... 193 Appellant Did Not Waive His Presence At The Hardship Voir Dire For The First Trial ............... 196 Appellant’s Absences Were Prejudicial .............. 197 THE TRIAL COURT’S ADMISSION OF VIDEOTAPES OF IVAN GONZALES,JR.’S PRELIMINARY HEARING TESTIMONY AT APPELLANT’S TRIAL WAS ERRONEOUS AND INFRINGED APPELLANT’S CONFRONTATION-CLAUSE RIGHTS ..........0000 205 199 Vill TABLE OF CONTENTS Page Facts And Procedural History .................2000- 199 The Trial Court Erred By Admitting Ivan Jr.’s Preliminary Hearing Testimony Into Evidence ......... 202 l, Evidence Code Section 1291 Barred the Admission of Ivan Jr.’s Preliminary Hearing Testimony .... 0... cece ccc eee eens 203 2. The Trial Court Erred in Using Its Purported Inherent Authority to Protect Children from Imminent Harm to Quash the Subpoena of Ivan Jr. and Not Using That Authority to Exclude the Videotapes ofIvan Jr.’s Preliminary Hearing Testimony ..... 0... cece ee ene ees 208 3. The Trial Court Erred in Ruling that IvanJr. Was Competentto Testify at the Preliminary Hearing .. 0...eceeeee 210 The Admission Of Ivan Jr.’s Preliminary Hearing Testimony Violated Appellant’s Confrontation-Clause Rights 20...ecee eee eee teens 214 Due To The Admission Of Ivan Jr.’s Preliminary Hearing Testimony, The Municipal Court’s Errors At The Preliminary Hearing Infected Appellant’s Trial ..... 218 1. The Court-Ordered Seating Arrangement Employed for Ivan Jr.’s Preliminary Hearing Testimony Violated Appellant’s Right to Face- to-Face Confrontation .............0.0 eens 218 ix XI TABLE OF CONTENTS 2. Barring Defense Counsel from Asking IvanJr. about His Understanding of the Consequences of Lying During His Preliminary Hearing Testimony Violated Appellant’s Right to Effective Cross-Examination .............06. 3. The Municipal Court’s Errors Impacted Appellant’s Trial... 0...eee E. The Admission OfIvan Jr.’s Preliminary Hearing Testimony Also Violated Appellant’s Constitutional Rights To A Fair Trial And To A Fair, Accurate, And Reliable Capital Sentencing Determination........... F, The Admission OfIvan Jr.’s Preliminary Hearing Testimony Requires Reversal Of Appellant’s Conviction, The Special-Circumstance Finding, And The Death Judgment .......... 00... eee eee ee eee THE ADMISSION OF VERONICA GONZALES’S HEARSAY STATEMENTS TO HER BROTHER-IN-LAW WAS ERROR THAT INFRINGED APPELLANT'S CONFRONTATION RIGHTS ....... 0.000 cece cee A. Facts And Procedural History .............. 000 e eee B. The Trial Court’s Ruling Was Erroneous ............ C. The Admission Of The Evidence Infringed Appellant's Constitutional Rights To Confront Adverse Witnesses . THE ADMISSION OF THE VIDEOTAPE OF THE POLICE OFFICERS’ CUSTODIAL INTERROGATION OF APPELLANT VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS 2.0... cece eee A. Facts And Procedural History .................005- Page . 227 . 230 . 230 . 231 . 237 . 237 . 238 . 239 . 243 . 243 XII XII TABLE OF CONTENTS Page Appellant Did Not Validly Waive His Privilege Against Self-Incrimination And His Right To Counsel .. 244 The Conviction, Torture-Murder Special Circumstance, And Death Judgment Must Be Vacated . . . 246 THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE PHOTOGRAPHS AND A MANNEQUIN OF GENNY ROJAS, AND THE TRIAL COURT’S RULING INFRINGED APPELLANT’S CONSTITUTIONAL RIGHTS 2...eeteens 248 A. Facts And Procedural History .......... 0.0.00 cee uee 248 B. The Admission Of The Photographs Was Error ........ 249 C. The Admission Of The Mannequin Was Error ......... 251 D. The Court’s Rulings Violated Appellant’s Constitutional Rights ........ 2.0... cece eee eee 252 The Conviction, Torture-Murder Special Circumstance, And Death Judgment Must Be Vacated... 253 APPELLANT’S CONVICTION AND THE SPECIAL- CIRCUMSTANCE FINDING WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE ......... 0.00.02 e eee eee 255 A. The Evidence That Appellant Perpetrated The Offense WasInsufficient... 2... eeeeeee 255 The Evidence That Appellant Intended To Torture Was Insufficient... 0...eects256 The Evidence That Appellant Intended To Kill Was Insufficient... 0...eee257 xi TABLE OF CONTENTS Page D. The Conviction, Special-Circumstance Finding, And Death Sentence Must Be Reversed .............00005 259 XIV THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT DURINGHIS GUILT-PHASE CLOSING AND REBUTTAL ARGUMENTS..........00 00 cece eee 260 A. Facts And Procedural History ...........05.0 eee eeee 260 B. The Prosecutor Committed Misconduct .............. 261 C. The Prosecutorial Misconduct Infringed Appellant’s Due Process And Confrontation Rights ............... 262 D. The Prosecutorial Misconduct Was Prejudicial......... 264 XV THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT AT THE PENALTY RETRIAL ............ 265 A. The Prosecutor Committed Misconduct .............. 265 1. Epithets 20...eetee eee 265 2. Opening Statement ......... 0.0.0 cece eee 265 3. Reserved Chair .......-. 0. 0c cece eee eens 266 4. Questions About Appellant’s Clothing and Grooming .. 6...tees 267 5. Closing Argument .... 0.0... cece eee 268 6. The Trial Court Erred in Overruling Objections to Misconduct and Denying the Related Portion of the Motion for a New Trial ................ 270 xii TABLE OF CONTENTS Page B. The Prosecutorial MisconductInfringed Appellant’s Rights To Due Process Of Law, To A Fair And Reliable Capital Sentencing Determination, To Counsel, And To Confront Adverse Witnesses ......... 271 C. The Prosecutorial Misconduct WasPrejudicial ......... 272 XVI THE TRIAL COURT’S DENIAL OF APPELLANT’S PRETRIAL MOTIONS WAS ERROR ..........-. 00-0005 274 A. Motion For Sequestered Voir Dire .................. 274 B. Motion ForInstruction Defining Life Without Parole ... 275 C. Motion To Set Aside The Indictment ................ 276 1. Failure to Delete Inapplicable Aggravating Factors 1.2...eectees 276 2. Failure to Designate Sentencing Factors as Aggravating or Mitigating ................... 276 3, Absence of Written Findings ................. 277 4. Absence of a Beyond-a-Reasonable-Doubt Burden of Proof ........... 0c eee eee eee 277 5. Absence of Proportionality Review ............ 277 6. Restrictive Adjectives in Mitigating Factors ..... 278 7. Vagueness of Aggravating and Mitigating FactOrs oo.eeeeee eens 278 8. Prosecutors’ Unbridled Discretion to Seek Death... 2... 00eeeee eee 279 xili XVII TABLE OF CONTENTS Page D. Motions For Procedural Protections .............-4-- 279 E. Motion To Declare Penal Code Section 190.3 Unconstitutional... 6... eeee 279 F, Motions To Strike The Special Circumstance Due To Constitutional Defects ....... 0... cece eee 280 G. Motion For A South Bay Jury Venire .............4-. 282 H. Motion To Quash The Jury Venire ..............50-, 283 I. Motions Challenging Discriminatory Prosecution ...... 283 J. Appellant Is Entitled To A New Trial .............--. 285 THE TRIAL COURT COMMITTED SEVERAL PREJUDICIAL INSTRUCTIONAL ERRORS AT THE _ GUILT PHASE .... 0... ccc ccc eee eee tenets 287 A. The Court Erred WhenIt Refused To Instruct The Jury That Failing To Stop Somebody From Committing Murder Is Not A Crime ...... 0... 0c cece eee 287 B. The Court Erred WhenIt Refused To Instruct The Jury With Respect To Veronica Gonzales’s Consciousness OfGuilt...eeeete eens 290 C. The Court Erred By Giving CALJIC No. 2.04 ......... 292 D. The Court Erred In Giving CALJIC No. 8.81.18 Because TheInstruction Required No Nexus Between _ The Alleged Torture Or Intent To Torture And The “Homicide 0.0.0...eeenena 294 XiV F, TABLE OF CONTENTS Page A Series Of Guilt-Phase Instructions Undermined The Requirement OfProof Beyond A Reasonable DoubtIn Violation Of Appellant’s Rights To Due Process, A Trial By Jury, And Reliable Verdicts ................ 296 1. The Instruction on Circumstantial Evidence under CALJIC No. 2.02 Underminedthe Requirement of Proof Beyond a Reasonable Doubt .... 0... ccc ccc cee eens 297 2. The Instructions Pursuant to CALJIC Nos. 2.21.2, 2.22, and 2.51 Also Vitiated the Reasonable-Doubt Standard .................. 300 3. This Court Should Reconsiderits Prior Rulings Upholding the Defective Instructions ........... 304 Appellant Is Entitled To A New Trial ................ 305 XVHI THE TRIAL COURT COMMITTED SEVERAL PREJUDICIAL PENALTY-PHASE INSTRUCTIONAL ERRORS 2.0...eeeene aes 311 A. The Court Erred WhenIt Refused To Instruct The Jury Which Capital-Sentencing Factors Could Be Either Aggravating Or Mitigating And Which Factors Could Only Be Mitigating 20.0.0... . eee ee ees 311 The Court Erred When It Refused Appellant’s Modified Instructions Pertaining To The Catch-All Mitigating Factor ... 2.0... cee eee teens 312 The Court Erred When It Refused To Instruct The Jury That It Should Not Limit Its Consideration Of Mitigating Evidence to The Delineated Factors ........ 315 XV TABLE OF CONTENTS Page The Court Erred When It Refused To Instruct The Jury That It May Return A Life Sentence For Any Reason ... 316 The Court Erred WhenIt Instructed The Jury ThatIt Need Not Be UnanimousIn Finding Aggravating Factors 0.0...teeete eens 317 The Court Erred WhenIt Refused To Give A Lingering-DoubtInstruction At The Penalty Retrial ..... 319 The Court Erred When It Amended CALJIC No.8.88 To Instruct The Jury That It Must Return A Death Verdict If Aggravation So Substantially Outweighs Mitigation That Death Is Warranted .............-44. 320 The Court Erred When It Gave CALJIC Nos. 8.85 And 8.88 Despite Their Fundamental Flaws .............-. 322 1. The Breadth of Factor (a) Violated Appellant’s Constitutional Rights ..... 0.0.0.0... eee eae 322 2. The Instructions Failed to Impose a Burden of Proof on the Prosecution or Inform the Jury That There Was No Burden of Proof ........... 324 3. The Penalty Retrial Jury Should Have Been Instructed on the Presumption of Life .......... 325 4. TheInstructions Caused the Penalty Determination to Turn on an Impermissibly Vague and Ambiguous Standard .............. 326 5. The Instructions Failed to Inform the Jury That the Central Determination Is Whether Death Is the Appropriate Punishment .................. 327 Xvi TABLE OF CONTENTS Page 6. The Instructions Violated the Equal Protection Clause 2... ee eeeeeeee 327 I. Appellant Is Entitled To A New Trial ................ 328 XIX THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTIONS TO MODIFY THE DEATH SENTENCE 1.0... 0. cee cece eee tenn nen es 330 A. The Court Erred In Denying The Automatic Motion To Modify The Death Sentence ........... 0.00... e eee 330 B. The Court Erred In Denying The Dillon Motion to Modify ... 0.0... cece eect tee e nena 330 C. The Denial Of The Dillon Motion Violated Appellant’s Constitutional Rights ... 2... 0... eee eee eee 331 D. The Death Sentence Must Be Reversed............... 331 XX 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....... 0. cece teen e eee n eens 332 XXI CALIFORNIA’S USE OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMS.......... 0.0000 eee eee eee 336 CONCLUSION ...... 00. c ccctee t ene t enna 337 XVii TABLE OF AUTHORITIES Page(s) FEDERAL CASES Adamsv. Texas (1980) 448 U.S. 38.....cucu eee cece eee e eer e tees etnenes 189, 240 Alicea v. Gagnon (7th Cir. 1982) 675 F.2d913oo.76 Apprendi v. New Jersey (2000) 530 US. 466 0...eeeteens 175, 318 Arizona v. Fulminante (1991) 499 U.S. 279 2...ceeeens 247 Ballew v. Georgia (1978) 435 U.S. 223 2...eens318 Beck v. Alabama (1980) 447 U.S. 625 .......... eee e eee erence teen ener enee 297 Blystone v. Pennsylvania (1990) 494 U.S. 2990.eeetenes 322, 327 Boydev. California (1990) 494 U.S. 370 0...ceteees 316 Brady v. Maryland (1963) 363 ULS. 83oteeee ens 207 Brownv. Lambert (9th Cir. 2005) 451 F.3d 946 0... 6.eeeeens 187 Buchanan v. Angelone (1998) 522 U.S. 269 6...cccee eee ees 176, 195 Cage v. Louisiana (1990) 498 USS. 263 2...ceeee es 296, 301, 310 XViil TABLE OF AUTHORITIES Page(s) Caldwell v. Mississippi (1985) 472 U.S. 320 0.cettenen e ens 83 California v. Ramos (1983) 463 U.S. 992 2.cnntte e nents 83 California v. Trombetta (1984) 467 U.S. 4790cecenen nee 62, 63 Carella v. California (1989) 491 ULS. 263 2.eect eee eee enes 296, 298, 309 Carson v. Fischer (2nd Cir. 2005) 421 F.2d 83 0...cence 144 Carsonv.Polley (Sth Cir. 1982) 689 F.2d 562 0...ccteens 169 Chambers v. Mississippi (1973) 410 U.S. 284 0.ccce ees 62-64, 72, 75, 171 Chapman v. California (1967) 386 U.S. 18 0.ceene e tenn eens passim Cooter & Gell v. Hartmarx Corp. (1990) 496 US. 3840cece eee ene ne tenes 50 County Court of Ulster County v. Allen (1979) 442 US. 1402cccccc n teen en ene 294 Coy v. Iowa (1988) 487 U.S. 1012 ........ete ete n ee ee eee eens 219-223, 234 Crane v. Kentucky (1986) 476 U.S. 683 21cereteenies 62-64, 73 xix TABLE OF AUTHORITIES Page(s) Crawford v. Washington (2004) 541 U.S. 36 2...ceeee 214-216, 222, 234, 239 Dallago v. United States (D.C. Cir. 1969) 427 F.2d 5460.nes87 Darden v. Wainwright (1986) 477 US.168eeeens 262, 271 Davis v. Alaska (1974) 415 U.S. 308 oo.eeeee 64, 75, 222 Davis v. Washington (2006) U.S. __, 126 S. Ct. 2266 2... eee eeeeens 239 Deck v. Missouri (2005) 522 U.S. 622 0... ccceeetne 195 Delaware v. Van Arsdall (1986) 475 U.S. 673 2...ees229 Delo v. Lashley . (1993) S07 U.S. 272 .eee325 Demjanjuk v. Petrovsky (6th Cir. 1993) 10 F.3d 338 0...ceceeens 266 Donnelly v. DeChristoforo (1974) 416 U.S. 637 0.6eee262, 263, 271, 272 Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734 2... ccc ccceeeees 307 Eddings v. Oklahoma (1982) 455 US.104eee223, 226 XX TABLE OF AUTHORITIES Page(s) Ellis v. United States (Ist Cir. 2002) 313 F.3d 636 2.0...eccee eee 223, 226 Enmundv.Florida (1982) 458 US. 782 ccence ete e teen neces 92 Estelle v. Williams (1976) 425 US. SOLcccce ete teen een eens 325 Francis v. Franklin (1985) 471 US. 307 oocc cece teen ene 299, 305 Frazier v. Cupp (1969) 394 U.S. 731 00.etetee tenn een eens 246 Gardnerv. Florida (1977) 430 U.S. 349 00ceceeee 82, 108, 124, 253 Gibson v. Clanon (9th Cir. 1980) 633 F.2d 851 2...cccee eas 87 Governmentof Virgin Islands v. Mills (3rd Cir, 1992) 956 F.2d 443 2...cecen neces 63 Gray v. Mississippi (1987) 481 U.S. 648 0.ccc eect tence ene eee 190 Green v. Georgia (1979) 442 US.95oieteen e een eens passim Harmelin v. Michigan (1991) 501 U.S. 957 2.cccee tect eee enn enes 318 Harrington v. California (1969) 395 U.S. 2500.cece tence en eeeas passim XX1 TABLE OF AUTHORITIES Page(s) Hicks v. Oklahoma (1980) 447 U.S. 3432eeeeee 196, 298, 322, 324 Hill v. Turpin (11th Cir. 1998) 135 F.3d 1411 2...eee263 Hitchcock v. Dugger (1987) 481 U.S. 3932eens253 Holmesv. South Carolina (2006) U.S. __, 126 S.Ct. 1727oeeee passim HomeTeleph. & Teleg. Co. v. Los Angeles . (1913) 227 U.S.278 oecceeeteenies 74 Howard v. Walker (2nd Cir. 2005) 406 F.3d 114.0... 0...eeeeee es 194 In re Oliver (1948) 333 U.S. 257cents141 In re Winship (1970) 397 U.S. 3582.eeetenet nee passim Jackson v. Virginia (1979) 443 U.S. 3070.eeeens 299, 303 Johnson v. Texas (1993) 509 U.S. 350okeeetees 316 Johnson v. United States (1997) 520 U.S. 461 2.0.0.0... eeeee ete eee ene eee e nena 148 Johnson v. Zerbst (1938) 304 U.S. 458 2.eeetenes 196 XXil TABLE OF AUTHORITIES Page(s) Jones v. United States (1999) 527 U.S.373 2...eeeteen eens 173, 176 Kentucky v. Stincer (1987) 482 U.S. 730 2...ceceeen eee nas 194, 215 Koonv. United States (1996) SIB US. 81cettetenet e teenies 50 Korematsu v. United States (N.D. Cal. 1984) 584 F.Supp. 1406 .... 0...eee 266 Kyles v. Whitley (1995) 514 US. 4192ceeetenes 98, 332 Lankford v. Idaho (1991) 500 US. L10cceee eens 83, 176 Lilly v. Virginia (1999) 527 U.S. T16occte ene en ee nes 240 Lisenba v. California (1941) 314 US. 2192ccccnt n tenn eeans 252 Lockett v. Ohio (1978) 438 U.S. 586 2...eeee en ennes passim Lockhart v. McCree (1986) 476 U.S. 162 0...cettetenn enes 187 Martin v. Parker (6th Cir. 1993) 11 F.3d 613 2...ccene 263, 264 Marylandv. Craig (1990) 497 U.S. 836 0...ceeeens 222-224, 227, 233 XXili TABLE OF AUTHORITIES Page(s) Mayberry v. Pennsylvania (1971) 400 U.S. 4550.eeeee teens 123 Maynard v. Cartwright (1988) 486 U.S. 3562.2eee323, 326 McCleskey v. Kemp (1987) 481 U.S.2792.eens189 McCoyv. North Carolina (1990) 494 USS. 433 0.ceeeee 129, 318 McDonaldv. Pless (1915) 238 U.S. 264 2.2ceceeee 165, 167, 171 McGauthav. California (1971) 402 U.S. 183Loene193 McNeil v. Middleton (9th Cir. 2003) 344 F.3d 988 00...eeeens 290 Michelson v. United States (1948) 335 U.S. 469 2... ctenn ee 53 Michigan v. Lucas (1991) 500 U.S. 1452.eeeeens 65 Miller v. Angliker (2nd Cir. 1988) 848 F.2d 1312...eeeeee 63 Miranda v. Arizona (1966) 384 ULS. 4362.ete245 Mongev.California (1998) 524 U.S. 721oceeeee 318 XXIV TABLE OF AUTHORITIES Page(s) Moore v. Morton (3rd Cir. 2001) 255 F.3d 95 1...ceeee 263 Myersv. Ylst (9th Cir. 1990) 897 F.2d 417 1...teeeee 318 North Carolina v. Butler (1979) 441 U.S. 369 2.cceeeeens 244 Ohio v. Roberts (1980) 448 U.S. 56 2...eeeeee ees 240 Old Chief v. United States (1997) 519 U.S.172 2.ceeeens 53, 134 Oregon v. Guzek (2006) U.S. , 1268. Ct. 1226 ...eee320 Oyler v. Boles (1962) 368 U.S. 448 0.eeeee eens 284 Parker v. Gladden (1966) 385 U.S. 363 2...ceeeee eee nes 86 Payne v. Tennessee (1991) 501 U.S. 808 0...cceee eens 252 Pennsylvania v. Ritchie (1987) 480 U.S. 39 21eett ene nes 216, 228 Penry v. Johnson (2001) 532 U.S. 782 2...tenteens 317 Penry v. Lynaugh (1989) 492 U.S. 302 2...eens 152, 315, 320 XXV TABLE OF AUTHORITIES Page(s) Pettijohn v. Hall (Ast Cir. 1979) 599 F.2d 479 oo. c eeees 63, 76 Ringv. Arizona (2002) 536 U.S. 584 2.eeeeee 175, 176, 181, 295 Rock v. Arkansas (1987) 483 U.S. 44ooeeeee eee passim Rodriguez v. Miller (2nd Cir. 2006) 439 F.3d 68.0.0...eee 144, 145 Rogers v. United States (1975) 422 U.'S.35 . 0... cece ee cece eee eee nee eee e eens 194 Rose v. Clark (1986) 478 U.S.570 .teeeens 307 Saffle v. Parks (1990) 494 ULS. 484ookete eee 83, 108, 124, 272 Sandstrom v. Montana (1979) 442 US. 5102.cettees 299 Satterwhite v. Texas (1988) 486 U.S. 2492.eespassim Saunders v. Shaw (1917) 244 U.S. 3172eens73 Simmonsv. United States (1968) 390 US. 377occeeeee 193 Skipper v. South Carolina (1986) 476 US.Loeeeeens passim XXVvi TABLE OF AUTHORITIES Page(s) Smith v. Texas (2004) 543 U.S.37 2...eeeeee eee ene 314 Sochorv. Florida (1992) 504 U.S. 527 oocccnent ners 98 Solem v. Helm (1983) 463 U.S.277 0.ccceeeen enn e eens 331 Spain v. Rushen (9th Cir. 1989) 883 F.2d 712 2...eetee 195 Sullivan v. Louisiana (1993) 508 U.S. 275 2.cceee ees passim Swindell v. Lewis (9th Cir. 2001) 1 Fed. Appx. 744 2... 0. eee ee eee ee 290, 292 Tannerv. United States (1987) 483 US. 107 2.eeerenee nee 165 Taylorv. Illinois (1988) 484 U.S. 400...eee eee 62, 64, 65, 70, 222 Tennard v. Dretke (2004) 542 U.S. 2740.teeeee passim Thomas v. Hubbard (9th Cir. 2001) 273 F.3d 1164 2...eeeee 63 Trop v. Dulles (1958) 356 US. 86 2...eteeens 336 Tuilaepa v. California (1994) 512 U.S, 9670.eeeeen e nee 323 XXVi TABLE OF AUTHORITIES Page(s) United States v. Amlani (9th Cir. 1997) LIL F.3d 705 2...eee272 United States v. Anderson (9th Cir. 1975) 561 F.2d 1301 2...eeeee 179 United States v. Bagley (1985) 473 U.S. 667 2...ete207 United States v. Brodwin (S.D.N.Y. 2003) 292 F.Supp.2d 484.6... ceceeees 87 United States v. Frederick (9th Cir. 1996) 78 F.3d 1370 0...eens-.... 332 United States v. Gaudin (1995) 515 U.S. 506 06.eee162, 175 United States v. Gordon (D.C. Cir. 1987) 829 F.2d 119.00... 2 ee eee Cece e nee e een 196 United States v. Hall (Sth Cir. 1976) 525 F.2d 1254...eens305 United States v. Mason (9th Cir. 1990) 902 F.2d 1434 20...ceeeens 290 United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104 2...eeeee 303 United States v. Owens (1988) 484 U.S. 5540.eee214, 215 United States v. Rosales-Rodriguez (9th Cir. 2002) 289 F.3d 1106 20...eeeeee 194 XXVili TABLE OF AUTHORITIES Page(s) United States v. Scheffer (1998) 523 U.S. 303 2... etees 64, 65, 76, 77 United States v. Scott (11th Cir. 1990) 909 F.2d 488 2...eeeee ee 194 United States v. Thomas (7th Cir. 2006) 453 F.3d 838 2.0...ceeeee eens 240 United States v. Valenzuela-Bernal (1982) 458 U.S. 8582.etetenes 64 United States v. Wallace (9th Cir. 1988) 848 F.2d 1464 20...eeees 332 Vasquez v. Hillery (1986) 474 ULS. 254occette een ees 285 Victor v. Nebraska (1994) SLI ULS.Lcceceeee eee ene 296 Vidal v. Williams (2nd Cir. 1994) 31 F.3d67. 0... cccete ene nee 145 Village of Willowbrook v. Olech (2000) 528 U.S. 562 2...eccet teen nen eee 74 Wadev. United States (D.C. Cir. 1971) 441 F.2d 1046 2...cence 198 Wainwright v. Witt (1985) 469 U.S. 412 ccc ee eens 186, 188 Waller v. Georgia (1984) 467 U.S. 39 0...ceeee ees 142, 144, 148 XXX TABLE OF AUTHORITIES Page(s) Wardius v. Oregon (1973) 412 U.S.470 2.6eneennnee 292 Washington v. Texas (1967) 388 U.S.14eeeees 62, 72, 75 White v.Illinois (1992) 502 U.S. 346 2...eens... 240 Wiggins v. Smith (2003) 539 U.S.S10.eeeee 152 Witherspoonv.Illinois (1968) 391 U.S. 510.eeeeens 186 Woodson v. North Carolina (1976) 428 U.S. 280 2.nee83, 253, 327 Yick Wov. Hopkins (1886) 118 U.S.356.eeees 73 Zant v. Stephens (1983) 462 U.S. 862 6...eeeeee 175, 176, 295 STATE CASES Alvarado v. Superior Court (2000) 23 Cal.4th 1121 2...eeeeee eee 206 Atkinsonv. State (Del. 2001) 778 A.2d 1058 2...ene207 Barnesv. State (Ga. 1998) 496 S.E.2d 674...eee 130, 146 XXX TABLE OF AUTHORITIES Page(s) Blair v. Commonwealth (Ky. 2004) 144 S.W.3d 801 2...ceeens 63 Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374 oo.eeeeee ene 305 City of Long Beach v. Mansell (1970) 3 Cal.3d 462 2...cccene eeneee 123 Commonwealth v. Amirault (Mass. 1997) 677 N.E.2d 652 2...eee eee 221, 224 Commonwealth v. Day (Mass. 1991) 569 N.E.2d 397...eens54 Commonwealth v. Johnson (Mass. 1994) 631 N.E.2d 1002 ... 0...eee220, 227 Companv. People (Colo. 2005) 121 P.3d 876 0...ceceeee eens 240 Curry v. Superior Court (1970) 2 Cal.3d 707 2... eeceenn nes 228 Ex Parte Griffin (Ala. 2000) 790 So.2d 351...oeeeeens 63 Griffin v. Municipal Court (1977) 20 Cal.3d 300 2...eeetenes 284 Herbert v. Superior Court (1981) 117 Cal.App.3d 661 2.0...eee227 Hochheiser v. Superior Court (1984) 161 Cal.App.3d 777 2... 0ccee enn 224, 225 XXXi TABLE OF AUTHORITIES Page(s) Hoveyv. Superior Court (1980) 28 Cal.3d 1 oo cceeeens 274 In re Basilio T. (1992) 4 Cal.App.4th 155 2.0... eee eeeeedee aeee 212, 213 In re Carmaleta B. | (1978) 21 Cal.3d 482 2...etees 50 In re ChantalS. (1996) 13 Cal.4th 196 2...neeee es 139 In re Cheryl H. (1984) 153 Cal.App.3d 1098 0.0...ceceeens 238 In re Cindy L. (1997) 17 Cal.4th 15 oceeeee es 212 In re Laura F. (1983) 33 Cal.3d 826 2.0...eettenes 139 In re Malone (1996) 12 Cal.4th 935 2.eeeeee 59, 189 In re Marriage ofLaMusga (2004) 32 Cal.4th 1072 2...ecene nes 50, 133 In re Nemis M. (1996) 50 Cal.App.4th 1344 2... 0 ceeeee 212, 213 In re Sakarias (2005) 35 Cal.4th 140 2...eee87, 92, 123 In re Stankewitz . (1985) 40 Cal.3d 391 .............cece eee een e eee eueeees 160, 161 XXXIi TABLE OF AUTHORITIES Page(s) In re V.B. (2006) 141 Cal.App.4th 899 00...ceeens 123 Jimenez v. State (Nev. 1996) 918 P.2d 687 2.2...ceteens 207 Kollert v. Cundiff (1958) 50 Cal.2d 768 10...ccc eeetna 165 Manleyv.State (Del. 1998) 709 A.2d 643 2... ccceteeee 130 Moorev.Conliffe (1994) 7 Cal.4th 634 2.0...ecce eee eens 206 Murgia v. Municipal Court (1975) 15 Cal.3d 286 0...teens284 Newmanv. United States (D.C. 1997) 705 A.2d 246 . 0...ceetnt e ees 63 O’Hare v. Superior Court (1987) 43 Cal.3d 86 0.0... cecetee eee e teenies 283 Paternov. State (1999) 74 CalApp.4th 68 2.0...ceeee 50 People v. Arias (1996) 13 Cal4th 92 oo.eeeeee 117, 325, 327 People v. Ashmus (1991) 54 Cal.3d 932 0...eeeenna 190, 285 People v. Ayala (2000) 23 Cal.4th 225 2.teens 65 XXXili TABLE OF AUTHORITIES Page(s) People v. Bacigalupo (1993) 6 Cal.4th 457 occeeeteens 327 People v. Barnes (2004) 122 Cal.App.4th 858 2.0... ceeeeens 55 People v. Barnett (1998) 17 Cal.4th 1044 2...eeees 308 People v. Bemore (2000) 22 Cal.4th 809 20... ceceeee ees 281, 295, 308 People v. Benavides (2005) 35 Cal.4th 69 occcceeeens 102 People v. Blair (2005) 36 Cal.4th 686 21...ccteens 291, 323 People v.Bolden (2002) 29 Cal.4th 515 2...eeee eens 288 People v. Bolton (1979) 23 Cal.3d 208 22... cccteenee es 269 People v. Braxton (2004) 34 Cal.4th 798 0.ees182 People v. Breaux (1991) 1 Cal.4th 281 2...eeeens 326 People v. Brock (1985) 38 Cal.3d 180 2...eceeeeeeee 203, 208 People v. Brown (1985) 40 Cal.3d 512 2...eeeteens 321 XXXiV TABLE OF AUTHORITIES Page(s) People v. Brown (1988) 46 Cal.3d 432 2...eens passim People v. Brown (2003) 31 Cal-4th 518 20.eee passim People v. Brown (2004) 34 Cal.4th 382 2...eeeee 324 People v. Cain (1995) 10 Cal.4th 1 ooo.ccceee eae 291 People v. Cardenas (1982) 31 Cal.3d 897 2...eccette eens 87 People v. Caro (1988) 46 Cal.3d 1035 2...ccctee etna 278 People v. Carpenter (1999) 21 Cal.4th 1016 0...eee229 People v. Cash (2002) 28 Cal.4th 703 2.0...eee 68, 102, 270 People v. Castaneda (1997) 55 Cal.App.4th 1067... .eeeeee 55 People v. Catlin (2001) 26 Cal.4th 81 0...eeeeee eee eee 60 People v. Cervantes (2001) 26 Cal.4th 860 2.0...eeetenes 258, 261 People v. Champion (1995) 9 Cal.4th 879 oo.ceceeee eee tenes 122 XXXV TABLE OF AUTHORITIES Page(s) People v. Cleveland (2001) 25 Cal.4th 466 2...eceee eens 178 People v. Cleveland (2004) 32 Cal.4th 704 2...eneee 297, 304 People v. Cloyd (1997) 54 Cal.App.4th 1402 2...eee203 People v. Coffman (2004) 34 Cal.4th bo...ceeeee 159, 293 People v. Cole (2004) 33 Cal.4th 1158 2...eee50, 88, 131, 256 People v. Cook (2006) 39 Cal.4th 566 22...eeeeee 336 People v. Corella (2004) 122 Cal.App.4th 461 2...eee240 People v. Cox (1991) 53 Cal.3d 618 20...eeeeee Decne eee eens 195 People v. Cox (2003) 30 Cal.4th 916 2...eeeeee 321 People v. Crittenden (1994) 9 Cal.4th 83 0...eee297, 304, 305 People v. Cudjo (1993) 6 Cal.4th 585 2.eeeeee 72, 104 People v. Dagnino (1978) 80 Cal.App.3d 981 2...ceeene 194 XXXVI TABLE OF AUTHORITIES Page(s) People v. Davenport (1985) 41 Cal.3d 247 2...eeeeens 256 People v. Davenport (1995) 11 Cal.4th 1171 2.eeeeee 277 People v. Davis (2005) 36 Cal.4th 510...eecteen nee 196 People v. Demetrulias (2006) 39 Cal4th bo...erent 120 People v. Dennis (1998) 17 Cal.4th 468 0...ceenee 266 People v. Derello (1989) 211 Cal.App.3d 414 0.0...eeeees 55 People v. Dillon (1983) 34 Cal.3d 441...eeeteena 330 People v. Duarte (2000) 24 Cal.4th 603 2.0...eeeeens 119 People v. Duran (1976) 16 Cal.3d 282 2...eeeene eee 195 People v. Edelbacher (1989) 47 Cal.3d 983 2...eeee eens 105, 130 People v. Eli (1967) 66 Cal.2d 63 2.0...ceceteens 228 People v. Engelman (2002) 28 Cal.4th 436 2...ceceee eens 178 XXXVil TABLE OF AUTHORITIES Page(s) People v. Eubanks (1996) 14 Cal.4th 580 ....... beeen eee eee Seen ene 50 People v. Falsetta (1999) 21 Cal.4th 903 oo.eeeete 53 People v. Farmer (1989) 47 Cal.3d 888 2.0...cette 117, 163 People v. Farnam (2002) 28 Cal.4th 107...cetteeee 291 People v. Flood (1998) 18 Cal.4th 470 oonenena 298 People v. Fosselman (1983) 33 Cal.3d 572 2.0... ec eee cence eee eee ees 174, 262, 267 People v. Frye (1998) 18 Cal.4th 894 oceens 194, 261 People v. Gainer (1977) 19 Cal.3d 835 2.cceeeeee 178 People v. Garceau (1993) 6 Cal.4th 140 2...eeeee passim People v. Garcia (App. 2000) 710 N.Y.S.2d 345oetenes 144 People v. Garcia (N.Y. 2000) 750 N.E.2d 1049 2...eeees 145 People v. Ghent (1987) 43 Cal.3d 739 2...cecee ete 186, 336 XXXViil TABLE OF AUTHORITIES Page(s) People v. Gonzales (1990) 51 Cal.3d 1179 2...teteens 300 People v. Gordon (1990) 50 Cal.3d 1223 2...ceeee eee 119 People v. Griffin (2004) 33 Cal4th 536 2...ecee eee 55, 56, 60, 69 People v. Guerrero (1976) 16 Cal.3d 719 2...cceee eens 51 People v. Gurule (2002) 28 Cal.4th 557 2... eeeeeete een eee 204 People v. Gutierez (N.Y. 1995) 657 N.E.2d 491 2.eens145 Peoplev. Hall (1986) 41 Cal.3d 826 2...eeeeee 44, 104, 291 People v. Hannon (1977) 19 Cal.3d 588 2.0...ceee tee eee eens 293 People v. Harrington (1871) 42 Cal. 165 2.ceeeee nes 195 People v. Harris (1989) 47 Cal.3d 1047 2...eeene 263, 272 People v. Harris (2005) 37 Cal4th 310 2...eceens 251 People v. Harrison (2005) 35 Cal.4th 208 2...ceeeens 214 XXX1X TABLE OF AUTHORITIES Page(s) People v. Harvey (1991) 233 Cal.App.3d 1206 2.0...ceetenes 55 People v. Haskett (1982) 30 Cal.3d 841 2...ccceeeens 267 People v. Hayes (1999) 21 Cal.4th 1211 2.eens186 People v. Heard (2003) 31 Cal.4th 946 2... ccceee eee ees 103, 131, 188 People v. Hernandez (2003) 30 Cal.4th 1...eeene 178 People v. Hill (1967) 66 Cal.3d 536 0...cccteeen ees 59 People v. Hill (1998) 17 Cal.4th 800 2... cece eee eee 270, 281, 332 People v. Humphrey (1996) 13 Cal.4th 1073 2...eeeeeee 87, 109 People v. Hutchinson (1969) 71 Cal.2d 342 2.eee172 People v. Jackson (1963) 59 Cal.2d 375 2...eeeeee eee 270 People v. Jackson (1980) 28 Cal.3d 264 20... ccceeeeens 280 People v. Jackson (1996) 13 Cal.4th 1164 20.eens297 xl TABLE OF AUTHORITIES Page(s) People v. Jackson (1998) 17 Cal.4th 148 20.cetteees 50 People v. Jenkins (2000) 22 Cal.4th 900 2...ceeee 159, 179 People v. Jennings (1991) 53 Cal.3d 334 0... eeceeee nnn 304 People v. Johnson (2004) 115 Cal.App.4th 1169 2.2...eens 194 People v. Jones (1997) 15 Cal.4th 119 2...eeeeens 275 People v. Jones (1998) 17 Cal.4th 279 2.ceeences 71, 298 People v. Jones (2003) 30 Cal.4th 1084 2...eceens 276 People v. Jones (1970) 7 Cal.App.3d 358 0... eeeeeeene 262, 267 People v. Kainzrants (1996) 45 Cal.App.4th 1068 2...eens305 People v. Karis (1988) 46 Cal.3d 612 00...eenett n ene 283 People v. Kaurish (1990) 52 Cal.3d 648 2...eeetree nes 188 People v. Keenan (1998) 46 Cal.3d 478 20.ceeteen nnes 279 xli TABLE OF AUTHORITIES Page(s) People v. Kelly (1990) 51 Cal.3d 931oeeee55 People v. Kennedy (2005) 36 Cal.4th 595 2.eeeens 270, 323 People v. Kraft (2000) 23 Cal4th 978... ccceeeteen teens 63 People v. Lang (1989) 49 Cal.3d 991 oo.eeeeee 331 People v. Leach (1975) 15 Cal.3d 4192.eeence eee ae 119 People v. Ledezma (2006) 39 Cal.4th 641 2...eeeete 317 People v. Lenart (2004) 32 Cal.4th 1107 2...eeeee 324 People v. Lewis (2001) 36 Cal.4th 334 2.eeeeee 213 People v. Lewis (2006) 39 Cal.4th 970 2...eeeeens 256 People v. Lofton (Ill. 2000) 740 N.E.2d 782 2...eeeee 220 People v. Lord (1994) 30 Cal.App.4th 1718 2...eee226 People v. Lucas (1995) 12 Cal.4th 415 2.ceeeee 78, 118 xii TABLE OF AUTHORITIES Page(s) People v. Mackey (1985) 176 Cal.App.3d 177 0...ecteee 207 People v. Manriquez (2005) 37 Cal.4th 547 2...ceeeee 277, 328 People v. Marks (2003) 31 Cal.4th 197 2...ceceeens 131 People v. Marsh (1984) 36 Cal.3d 134 2...ceeetna 152 People v. Martinez (1991) 10 Cal.App.4th 1001 0...eeeee 55 People v. Mayfield (1997) 14 Cal.4th 668 2...cecttees 268 People v. Mayorga (1985) 171 Cal.App.3d 929 .... 0. ee eeere 174 People v. McClellan (1969) 71 Cal.2d 793 0...keetee eee eens 130 People v. McDermott (2002) 28 Cal.4th 946 2...eee261 People v. McPeters (1992) 2 Cal.4th 1148 2...eeeeee 285 People v. Medina (1995) 11 Cal.4th 694 0...ceeee ees 132, 319 People v. Mickey (1991) 54 Cal.3d 612 2...ccceee80 xliii TABLE OF AUTHORITIES Page(s) People v. Millwee (1998) 18 Cal.4th 96 2.eeenes 331 People v. Moore (1954) 43 Cal.3d 517 2.cetteeee 292 People v. Morrison (2004) 34 Cal.4th 698 2...eee eee eee 65, 116, 122, 238 People v. Murphy (2003) 107 Cal.App.4th 1150 2...ceceeee 224, 225 People v. Musselwhite (1988) 17 Cal.4th 1216 2...ceeres 288 People v. Navarette (2003) 30 Cal.4th 458 2...teens 159 People v. Nieves (N.Y. 1997) 683 N.E.2d 764 0...eee145 People v. Nitschmann (1995) 35 Cal.App.4th 677 2.0...cece eee eee 246 People v. Noguera (1992) 4 Cal.4th 599 2.eee304 People v. Ochoa (1998) 19 Cal.4th 353 okceeeens 129 People v. Panah (2005) 35 Cal.4th 395oeneces 287 People v. Poggi (1988) 45 Cal.3d 306 2...ceceeee ene 116, 238 xliv TABLE OF AUTHORITIES Page(s) People v. Price (1991) 1 Cal.4th 324 Jo.ccccee nee eens 131 Peoplev. Pride (1992) 3 Cal4th 195 2.ceeeee ees 131, 189 People v. Prieto (2003) 30 Cal.4th 226 2...eeeeee 278, 308 People v. Raley (1992) 2 Cal.4th 870 oecece nee ene ete ens 238 People v. Ramirez (1990) 50 Cal.3d 1158 2.teens 153 People v. Ramirez (2006) 39 Cal.4th 398 2...ccccee teens 249, 312 People v. Ramirez (2006) 143 CalApp.4th 1512 2.eens238 People v. Ramos (2004) 34 Cal.4th 494 ooeee80, 161 People v. Richardson (1911) 161 Cal. 552 2.cecece neces 132 People v. Riel (2000) 22 Cal-4th 1153 0.cece 132, 304 People v. Rivers (1993) 20 Cal.App.4th 1040 2...ceeee nee 301 People v. Robbie (2001) 92 Cal.App.4th 1075 2...eeeee 54, 55, 58 xlv TABLE OF AUTHORITIES Page(s) People v. Roder (1983) 33 Cal.3d 491...cee296, 299, 310 People v. Rodriguez (1986) 42 Cal.3d 730 0... .eceee eens 182 People v. Roldan (2005) 35 Cal.4th 646 2...eee eee 114, 152, 287 People v. Romero (1982) 31 Cal.3d 685 2...eee 162, 169 People v. Ross (1979) 92 Cal.App.3d 391 2...eens 89, 110 People v. Roybal (1998) 19 Cal.4th 481 2...eens 115 People v. Russel (1968) 69 Cal.2d 187 2...eeeeens 50, 134 People v. San Nicolas (2004) 34 Cal.4th 614 22.eeeee 131, 274 People v. Sanchez (1995) 12 Cal4th bo...ceeens 320 People v. Schmeck (2005) 37 Cal.4th 240 2...cece ee eee passim People v. Sears (1970) 2 Cal.3d 180 2...eeeeee 287 People v. Sengpadychith (2001) 26 Cal.4th 316 2...eeccceee eee 328 xlvi TABLE OF AUTHORITIES Page(s) People v. Sharp (1994) 29 Cal.App.4th 1772 2...eeeee 223, 226 People v. Shirley (1982) 31 Cal.3d 18 2...ceeee eens 213, 217 People v. Singh (1995) 37 Cal.App.4th 1343 2...ceeee 55 People v. Smallwood (1986) 42 Cal.3d 415 2...cee eeeeee eens 53 People v. Smith (2005) 35 Cal.4th 334 2... eeeeee 55, 58, 129, 150 People v. Snow (2003) 30 Cal.4th 43 oo.ceeteen nas 336 People v. Stanley (1995) 10 Cal.4th 764 2...ecceeenna 312 People v. Stansbury (1993) 4 Cal4th 1017 21.eeeens 278 People v. Steele (2002) 27 Cal.4th 1230 2... 2 eeeeee 160, 162, 164, 330 People v. Stewart (1976) 16 Cal.3d 133 2...ceeee tenes 287 People v. Stewart (2004) 33 Cal.4th 425...eeeeens 188 People v. Stewart (1983) 145 CalApp.3d 967 0.0...eeeee eee 305 xvii TABLE OF AUTHORITIES Page(s) People v. Stoll (1989) 49 Cal.3d 1139 20.eee55 People v. Sully (1991) 53 Cal.3d 1195 2...eens 116, 117 People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 2...eens50 People v. Taylor (1990) 52 Cal.3d 719 2.teennee 318 People v. Terry (1964) 61 Cal.2d 137 2...eeeeee ees 320 People v. Tuck (N.Y. 1989) 551 N.E.2d 578 0...eee 223, 227 People v. Turner (2004) 34 Cal.4th 406 0...ceeeee 261 People v. Villa (1957) 156 Cal.App.2d 128 2... ccceetenes 288 People v. Waidla (2000) 22 Cal.4th 690 2.0... eee eee Leen eee 274, 281 People v. Walkey (1986) 177 Cal.App.3d 268 2.0...ceeeee 46, 54, 57 People v. Watson (1956) 46 Cal.2d 818 2...eeeee eee passim People v. Whitson (1998) 17 Cal.4th 229 2...eens245 xviii TABLE OF AUTHORITIES Page(s) People v. Wilkins (1990) 225 Cal.App.3d 299 00... cece ee eee eens 193 People v. Williams (1988) 44 Cal.3d 883 20...ceee tee eens 325 People v. Williams (1997) 16 Cal.4th 153 2.ccceens 277 People v. Williams (2001) 25 Cal.4th 441 occce ee eee eae 177 People v. Williams (1971) 22 Cal.App.3d 34 2.0... eeeee eee eee 332 People v. Wisely (1990) 224 Cal.App.3d 939 0.0...eeetees 159 People v. Woodard (1979) 23 Cal.3d 329 oo.eeeeee eee tenes 87 Pitchess v. Superior Court (1974) 11 Cal.3d 531 2...eettees 206 Roberts v. State (Nev. 1994) 881 P.2d 1 .. 0...eeeeee 207 Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460 2...ceeeee 116, 117 Smith v. State (Nev. 1995) 894 P.2d 974 2...ccceee eens 221 State ex rel. Simmonsv. Roper (Mo. 2003) 112 S.W.3d 397 oo...eeeeee eens 223 xlix TABLE OF AUTHORITIES Page(s) State v. Barden (N.C. 2002) 572 S.E.2d 108 2...ceees 133, 143 State v. Blob (Minn. 2004) 682 N.W.2d 578 0...eeeeens 68 State v. Burke (R.[L. 1990) 574 A.2d 12172.ete207 State v. Clark (N.M.1999) 990 P.2d 793 0...eens 130 State v. Frost (N.J. 1999) 727 A.2d1ceeeeee 263 State v. Gonzales (Mich. 1982) 329 N.W.2d 743 00...ccteens 217 State v. Greene (Ariz. 1998) 967 P.2d 106 0...eeeeee 129 State v. Jimenez (N.J. 2003) 815 A.2d 976...eeeee ee 63 State v. Jones (Minn. 2004) 678 N.W.2d 1...tenes 63 State v. Kleypas (Kan. 2001) 40 P.3d 139 2...eeeeens 95 State v. Koedatich (N.J. 1988) 548 A.2d939...teens 68 State v. Lewis (Conn. 1998) 717 A.2d 1140 2...ees63 TABLE OF AUTHORITIES Page(s) State v. Lipka (Vt. 2002) 817 A.2d27 2.cenee 223, 226, 227 State v. Lugo (Fla. 2003) 845 S0.2d 74 0...ccceee e eens 130 State v. Mack (Minn. 1980) 292 N.W.2d 764 2... eceee213,217 State v. Moore (N.J. 2006) 902 A.2d 1212.0...ceeee 213, 217 State v. Pennington (N.J. 1990) 575 A.2d 816.0...ccceect nen ens 261 State v. Stevens (Ore. 1994) 879 P.2d 162.0...eeeeens 130 State v. Walters (N.C. 2003) 588 S.E.2d 344 0...eeeeens 261 Tapia v. Barker (1984) 160 Cal.App.3d 761.0...eee 168 Vomaskav. City of San Diego (1997) 55 Cal.App.4th 905 oo...eeee ee 179, 180 Walkerv. State (Md.App. 1999) 723 A.2d 922...ceeenn ees 145 CONSTITUTIONS Cal. Const., art. I, §§ Tice cece eee een eee nees passim Lacece tees passim LOeeeees passim passim li U.S. Const., Amends. U.S. Const., Art. I, § Ev. Code, §§ Pen. Code, §§ Welf. & Inst. Code, §§ TABLE OF AUTHORITIES Page(s) Geceeee eens passim Beeneeee passim V4 Locceeeee passim OQ, CL 3 Lecce ete eee 73 STATUTES 140 Loceens 132 QOccceee tenes 48 os) 102 B51ceceete eas A8 A324 1101, subd. (a)... 2... ee eee eee 51 1101, subd. (b) 2...eeeee 59 L150...ccceee tenes 161 1200, Commentofthe Sen. Judiciary Committee 20... 0.2eee 120 1230 . occ ceeeee ee 118 1240 ooccee ees 115, 238 1291, subd. (a)(2) 2... eee eee 203 190.2 (a)(18).oe281, 294 |S c47 190.3, subd. (a) ........... 80, 83, 104, 121 190.3, subd. (g) .. 0... ee eee ee 152 190.3, subd. (J)... eee passim 190.3, subd. (kK) 2.0...eee 152 OS195 977, subd. (bB)(1) oeeeee 196 1239, subd. (b) . 0...eeeeee 4 202, subd. (d) ..... ce eee eee 139 A139, 215 lit TABLE OF AUTHORITIES Page(s) COURT RULES Cal. Rules of Court, rule 4.42, subd. (b) .. 0.2... eee eee 328 4.42, subd. (€) 2.0... cece ees 328 JURY INSTRUCTIONS CALJIC, No. 8.88, use note...eees 321 OTHER AUTHORITIES 2 Jefferson’s California Evidence Benchbook (Bded.) § 33.1...ccccece eee ete e teens 51 2 N. Webster, An American Dictionary ofthe English Language (1828)2.eeeeect teen e nt n enna 239 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, §45 0.0... 0.0.0... c cee eee 86-87 31 Cal.Jur.3d Evidence, § 438 0.0.0... 0... eee eee eae 132 ABAStandards Relating to Discovery and Procedure Before Trial (1974) § 1.2 .occee teen e eet eee ne teens 207 Alison,et al., The Personality Paradox in Offender Profiling (2002) 8 Psychol. Pub. Po’y &L. 11S oo.eeeee 56 American Psychiatric Association, Diagnostic andStatistical Manual ofMental Disorders (4th ed. Test Revision 2000) 1... 0... 0. . ceceeens 204 Broeder, Voir Dire Examination: An Empirical Study (1965) 38 S. Cal. L. Rev. 503 0...eceee eens 274 liti TABLE OF AUTHORITIES Page(s) Carter, Harmless Error in the Penalty Phase ofa Capital Case: A Doctrine Misunderstood and Misapplied (1993) 28 Ga. L.Rev. 125 1...ene95, 96 Douglaset al., The Impact ofGraphic Photographic Evidence on Mock Jurors’ Decisions in a Murder Trial: Probative or Prejudicial? (1997) 21 Law & Hum. Behav. 485.1... eee eee.. 250 Haney, Commonsense, Justice and Capital Punishment (1997) 3 Psychol. Pub. Pol’y & L., 303 «0.0... eee ee eee 136 Haney, On the Selection ofCapital Juries: The Biasing Effects ofthe Death Qualification Process (1984) 8 Law & Hum. Beh. 121 1...eeeees 274 Kamin, Harmless Error and the Rights/Remedies Split (2002) 88 Va.L.Rev. 1, 7072 2... cece cs97 Kelley, Addressing Juror Stress: A Trial Judge’s Perspective (1994) 43 Drake L.Rev.97 2... ccceens250 Kessler, Death and Harmlessness: Application ofthe Harmless Error Rule by the Bird and Lucas Courts in Death Penalty Cases - A Comparison & Critique (1991) 26 U.S.F. L.Rev. 41 oo.nee95, 98 King & Norgard, What About Our Families? Using the Impact on Death Row Defendants’ Family Members as a Mitigating Factorin Death Penalty Sentencing Hearings (1999) 26 Fla. St. U. L-Rev. 1119 20...eeeeee 154 Lakamp, Deliberating Juror Predeliberation Discussions: Should California Follow the Arizona Model? (1998) 45 UCLA L.Rev. 845 2.0...eens 197 liv TABLE OF AUTHORITIES Page(s) Larsen, OfPropensity, Prejudice, and Plain Meaning: the Accused’s Use ofExculpatory Specific Acts Evidence and the Need to Amend Rule 404(b) (1993) 87 Nw. U. L.Rev. 651 2...ceeences 77, 78 Logan, When Balance and Fairness Collide: An Argumentfor Execution Impact Evidence in Capital Trials (1999-2000) 33 U. Mich. J.L. Reform 1... 0.0.0... cece eee 154 McCord, “But Perry Mason Made It Look So Easy!”: The Admissibility ofEvidence Offered by a Criminal Defendant to Suggest that Someone Else Is Guilty (1996) 63 Tenn.L.Rev. 917 2...ccceee eens 78 McCord, fs Death “Different”for Purposes ofHarmless Error Analysis? Should it Be?: An Assessment of United States and Louisiana Supreme Court Case Law (1999) 59 La. L.Rev. 1105 2...ccc ce eee enna 96 Miller & Mauet, The Psychology ofJury Persuasion (1999) 22 Am. J. Trial Advoc. 549 oo...ceeees 250 Oberer, The Deadly Weapon Doctrine—Common Law Origin (1962) 75 Harv. L. Rev. 1565 2...cnet ee 258 Orenstein, No Bad Men!: A Feminist Analysis ofCharacter Evidence in RapeTrials (1998) 49 Hastings L.J. 663 20.0.0... ccc eens 52 Pokorak, Dead Man Talking: Competing Narratives and Effective Representation in Capital Cases (1999) 30 St. Mary’sL.J. 421 2.ceeees 136, 147 Rubenstein, A Picture Is Worth a Thousand Words — The Use ofGraphic Photographs as Evidence in Massachusetts Murder Trials (2001) 6 Suffolk J. Trial & Appellate Advoc. 197 ..............00. 250 Iv TABLE OF AUTHORITIES Page(s) Sarat, Narrative Strategy and Death Penalty Advocacy (1996) 31 Harv. C.R.-C.L. L. Rev. 353 6.6... eee eee eee 136 Scoville, Deadly Mistakes: Harmless Error in Capital Sentencing (1987) 54 U. Chi. L-Rev. 740 2... ccc eee eee eens 95, 96 Steiner et al., Folk Knowledge as Legal Action: Death Penalty Judgments and the TenetofEarly Release in a Culture ofMistrust and Punitiveness (1999) 33 Law & Soc’y Rev. 461.6...ceceeee 275 Sundby, The Capital Jury and Absolution: The Intersection ofTrial Strategy, Remorse, and the Death Penalty (1998) 83 Cornell L-.Rev. 1557 20... ccceens 92 Traynor, The Riddle ofHarmless Error 0591010)97 lvi APPELLANT’S OPENING BRIEF INTRODUCTION While in the care of her aunt and uncle, Veronica Gonzales and appellant, Genny Rojas was brutally abused and killed. She died from thermal burnsto the lowerhalf of her body. Prior to her death, Genny suffered numerousinjuries from being bound, beaten, and burned. There wasno dispute at either of appellant’s trials that Genny had been grievously victimized. But, there was a dearth of evidence regarding whohadinflicted Genny’s injuries. Appellant’s first trial and the penalty retrial revolved around whether appellant, Veronica, or both of them had abused and killed Genny. To support his defense that Veronica solely or primarily perpetrated the offense, appellant proffered evidence of the bizarre abuse Veronica and her sisters had suffered during their childhood. Veronica’s mother, Utilia Ortiz, burned, beat, confined, and pulled the hair of her daughters. Genny was burned, beaten, and confined, and had herhair pulled. The evidence would have shownthat Veronica experienced or observed her mother’s excessive disciplinary techniques, learned how to use those techniques, modeled her behavior after her mother’s, and applied those techniques against Genny. Althoughthis indisputably relevant evidence formed the linchpin of appellant’s defense at the guilt and penalty phases,the trial court barred it. (See post, Claim I.) In addition, at bothtrials thetrial court excluded evidence of Veronica’s antipathy for her sister Mary, who was Genny’s mother, that appellant had proffered to show Veronica had a motive to perpetrate the offense. (See post, Claim II.) At the penalty retrial, the court excluded defense-proffered evidence of Veronica’s admissionsto police that suggested she had acted alone. (See post, Claim -l- III.) The court’s exclusion of this evidence was erroneous and prevented appellant from establishing a defense at the guilt phase and penalty retrial. Thejuries that convicted appellant, found the special circumstance, and sentenced him to death reached those decisions while being denied crucial information that pertained to appellant’s and Veronica’s relativeroles: evidence that would have buttressed appellant’s defense that Veronica was the sole, or alternatively the primary, perpetrator of the offense. Moreover, immediately following the first trial, two jurors told the trial court that the jury did not find that appellant had intendedto kill Genny. Intentto kill was an essential element of the torture-murder special circumstance, which wasthe only basis for appellant’s death-eligibility. Thetrial court erroneously ruled that jurors’ statements regarding whether the jury found the intent-to-kill element were inadmissible and denied appellant’s motion for a new special circumstance trial for that reason. (See post, Claim VI.) Dueto these and othererrors, appellant’s trial was fundamentally unfair. This Court should vacate the conviction, special circumstance, and death judgment. STATEMENT OF THE CASE On December11, 1995, an information wasfiled against appellant and Veronica Gonzales, appellant’s wife,’ in San Diego County Superior Court. The one-count information alleged the murder of Genny Rojas (Pen. ' Appellant and Veronica Gonzales divorced during the pendency of this appeal. (See Gonzales v. Gonzales (Super. Ct. San Diego County, 1997, No. D440378).) Although they are no longer married, appellant refers to Veronica as his wife throughoutthis brief to reflect their marital status at the time of the incident underlying this appeal. -2- Code, § 187, subd. (a)) and the torture-murder special circumstance (Pen. Code, § 190.2, subd. (a)(18)). (CT 1:39-40.)? On February 27, 1997, the trial court granted appellant’s and Veronica Gonzales’s severance motions. (CT 13:2905.) On March 21, 1997, jury selection commenced for appellant’s trial. (CT 13:2924.) The seated and alternate jurors were sworn on April 14, 1997. (CT 13:2953.) The case was submitted to the jury for guilt-phase deliberations on May 7, 1997. (CT 13:2998.) Nine dayslater, the jury convicted appellant of first degree murder and foundtrue the torture-murder special circumstance. (CT 9:2120-2121; CT 13:3009.) The penalty phase commenced on May 22, 1997, and the jury began deliberating on May 28, 1997. (CT 13:3014, 3023.) On June 5, 1997,after seven daysof deliberations, the court found the jury hopelessly deadlocked and declared a mistrial. (CT 13:3037.) The prosecution opted to retry appellant, and jury selection for the penalty retrial commenced on October 10, 1997. (CT 13:3038, 3059.) The seated andalternate jurors were sworn on October 28, 1997. (CT 13:3075.) Sixteen dayslater, the case was submitted to the jury. (CT 13:3100.) On November 14, 1997, the jury returned a death verdict. (CT 12:2677; CT 13:3102.) On January 13, 1998, the court denied appellant’s motions for a new trial, to modify the sentence, and to reduce the sentence. (CT 12:2812- 2814; CT 13:3110-3111.) The court sentenced appellant to death and * Throughoutthis brief, the record citations list the volume number, followed by a colon andthe pertinent page citation. “CT”refers to the Clerk’s Transcript, “PX”refers to the separately paginated preliminary hearing transcript, and “RT”refers to the Reporter’s Transcript. -3- entered a death judgment. (CT 12:2815-2817; CT 13:3111-3112.) STATEMENT OF APPEALABILITY This automatic appeal is from a final judgment imposing a verdict of death. (Pen. Code, §1239, subd. (b).) STATEMENT OF FACTS IL Genny Rojas’s Arrival At Appellant And Veronica Gonzales’s Apartment Genny Rojas was the youngest child of Veronica Gonzales’s sister and brother-in-law, Mary and Pete Rojas. (RT 51:6143, 6174.) Veronica’s mother, Utilia Ortiz (“Tillie”), acquired custody of Genny because Mary and Pete were found to be unfit parents. (CT 8:1758; RT 51:6143-6144, 6150, 6175, 6186.) In addition to being abusive and neglectful, Mary was in a drug rehabilitation program, and Pete was incarcerated for molesting another daughter. (CT 8:1758; RT 50:5977; RT 51:6172.) » For four months while Tillie was supposedto be caring for her, Gennylived with her aunt and uncle Anita and Victor Negrette. (RT 60:7735-7736.) Tillie had asked her oldest daughter, Anita, to take care of Genny becauseTillie’s poor health hindered her ability to care for Genny. (RT 60:7736.) Genny wastroubled andterrified; she was difficult to calm down, care for, and handle. (RT 60:7736-7738.) Consequently, Anita and Victor returned Gennyto Tillie. (RT 60:7739.) Shortly thereafter, Tillie asked Veronica, who washer youngest daughter and appellant’s wife, if she could take care of Genny, and Veronica assented. (CT 8:1758-1759; RT 60:7739.) In February 1995, Genny, who wasfour years old, beganto live with appellant and Veronica andtheir six children in their small two-bedroom apartment, which was located at 1430 Hilltop Drive, Apartment 7 in Chula Vista. (CT 8:1759; RT 4. 50:5898; RT 52:6393; RT 92:11511; RT 95:12073-12075.) In addition to having behavioraldifficulties, Genny was incontinent. (CT 8:1760, 1787- 1788, 1883-1884; RT 95:12078, 12091.) II. Genny Rojas’s Burn To Her Head In June 1995, Genny sustained a serious burn to her head. (RT 56:7066, 7069, 7072; RT 95:12075-12076.) Appellant asked his mother, Belia Gonzales, for an ointmentto treat the burn. (RT 56:7072; RT 95:12076.) Appellant also said that he and Veronica weretrying to obtain Genny’s Medi-Cal card from Tillie, so they could take Genny to thedoctor. (CT 8:177; RT 98:12597.) A few daysafter July 4, 1995, appellant’s sister Guadalupe Baltazar visited appellant and Veronica’s apartment to drop off food Belia had obtained and clothing that Guadalupe’s children had outgrown. (RT 56:7066-7067; RT 57:7192; RT 95:12073.) Guadalupe observed that Gennyhada tightly wrapped towel draped over her head. (RT 56:7068- 7069; RT 95:12074.) Appellant explained that the towel was covering up Genny’s burn. (RT 56:7069.) At Guadalupe’s request, Veronica removed the towel, and Guadalupe saw that the burn, which was onthe back of Genny’s head and shoulders and the left side of her head, appeared to be healing and that a scab had formed. (RT 56:7072-7073; RT 57:7194; RT 95:12076-12078, 12089.) Due to the burn, hair was missing from the back of Genny’s head. (RT 57:7193.) The wound wastroublesome, however, because the scab was extraordinarily itchy. (RT 53:6519; RT 93:11647.) Consequently, Genny repeatedly picked at the scab with her handsor rubbedher head against the wall. (PX 2:241, 282-283, CT 8:1767, 1771, 1780, 1783-1784, 1880-1884, 1889; CT 9:1913, 1915-1918, 1920-1921, 1936-1937, 1948.) 5. Ill. Genny Rojas’s Appearance In Early July 1995 During herearly July visit to appellant and Veronica’s apartment, Guadalupe could see most of Genny’s body because Genny was wearing a short tank top and shorts. (RT 56:7074-7075; RT 95:12078-12079.) Guadalupedid not see any injuries besides the burn to Genny’s head and shoulders. (RT 56:7075; RT 57:7195-7196; RT 95:12079, 12092-12093.) Hadshe seen any signs of abuse, Guadalupe would havealerted the authorities. (RT 95:12093.) IV. The Events Of July 21, 1995 A. Interactions with Appellant in the Afternoon and Evening Between 3:00 and 3:30 p.m. on July 21, 1995, appellant went into a grocery andliquorstore called Hilltop Liquor that was located near appellant and Veronica’s apartment in Chula Vista. Appellant purchased cereal, milk, and soda on credit. (RT 52:6242.) In the late afternoon, Juan Manuel Banuelos wentto appellant and Veronica’s apartment to speak to appellant. (RT 51:6130.) Banuelos workedat the Hilltop Calimax Market, where appellant also regularly purchasedgroceries on credit. (RT 51:6139; RT 56:7051; RT 96:12125.) Banuelos spoketo appellant outside the apartmentfor five to ten minutes about appellant’s credit account, to which appellant was uncharacteristically late making a payment. (RT 51:6135, 6140.) Between 7:30 and 8:00 that evening, Marisa Lozano and Christina Robles, wholived in the apartment complex, were mingling with their cousins and friends in the courtyard near appellant and Veronica’s apartment. (RT 52:6264; RT 53:6531; RT 94:11824, 11827.) They heard a banging, thumping, or pounding sound coming from a wall in the -6- apartment. (RT 52:6265, 6281, 6288; RT 53:6534; RT 57:7181; RT 94:11825, 11833; RT 95:12034.) Secondslater, they heard a baby crying.’ (RT 52:6266; RT 94:11825.) Appellant subsequently looked out a window facing the courtyard and shut the window. (RT 52:6267, 6282; RT 94:11825.) Immediately thereafter, he walked out of the apartment, slammedthe front door, and went toward Hilltop Drive. (RT 52:6270; RT 53:6536; RT 94:11826-11828.) Appellant appeared angry. (RT 52:6286- 6287; RT 94:11829.) Marisa testified that this occurred while it was starting to get dark. (RT 52:6262, 6278; RT 94:11824.) Sunset occurred at 7:55 p.m.that day. (RT 54:6701-6703; RT 94:11856; RT 96:12224-12225.) Nolater than 8:45 p.m., appellant went into Hilltop Liquor. (RT 52:6242, 6260, 6353, 6358; RT 96:12180-12181, 12184.) Bassan Kalasho, a store manager, carefully noted and remembered the time because he neededto go to his brother’s store in National City by 9:15 p.m. (RT 52:6243.) Appellant purchased, on credit, milk, cereal, and other groceries, but no alcoholic beverages. (RT 52:6244, 6353; RT 96:12183.) Heleft the store at approximately 9:00 p.m. (RT 52:6244-6245, 6260, 6353; RT 96:12181, 12184.) B. __.Alicia Montes Hears Water Running in Appellant and Veronica Gonzales’s Bathroom Alicia Montes lived in the apartment directly above appellant and Veronica’s apartment. (RT 57:7085-7086; RT 95:11927.) Between 8:00 > Atboth trials, Marisa testified that the crying followed the noise. (RT 52:6266, 6281; RT 94:11825, 11838.) Priorto thefirst trial, she told appellant’s investigator that she wascertain the crying precededthe noise. (RT 52:6279-6280; RT 94:11835-11836, 11839.) Christina testified that she heard a child screamingoryelling after hearing the noise. (RT 53:6534-6535.) -7- and 8:10 p.m., she sat down to watch Si Dios Me Quita La Vida, a telenovela that she watched regularly. (RT 57:7087-7088; RT 95:11929.) However, the sound of water running in appellant and Veronica’s bathroom prevented her from hearing her television. (RT 57:7087 ; RT 95:11928- 11930.) She heard the water running between 8:00 and 9:00 p.m. (RT 57:7088, 7099; RT 95:11929.) The water was not running whenshe heard the police cars that responded to the incident. (RT 57:7088.) C. Ivan Gonzales, Jr. Asks for Rubbing Alcohol Sometimethat evening, appellant and Veronica’s oldest son, Ivan Jr., asked Patricia Espinoza, a neighbor, if Veronica could borrow rubbing alcohol. (RT 51:6196; RT 92:11444, 11458.) Ivan Jr. had a blank expression on his face. (RT 51:6196; RT 92:11445.) Dayslater, Patricia Espinoza told Officer Susan Rodriguez that Ivan Jr. asked to borrow the alcohol an hourbefore the authorities arrived at 9:22 p.m. (RT 50:5889; RT 95:12032; RT 98:12627.) Her sister Noemi Espinozatestified that Ivan Jr. asked for the alcohol between 6:00 and 7:00 p.m. (RT 51:6195; RT 92:11444.) Patricia Espinozatestified that she did not remember when Ivan Jr. cameover to her apartment. (RT 92:11486.) Eighteen monthsafter the incident, she told an investigator from the District Attorney’s Office that she recalled that Ivan Jr. asked for the rubbing alcohol between 6:00 and 6:30 because she wasgetting ready to watch The Simpsons, which began at 7:00. (RT 96:12217; RT 98:12629.) D. Appellant and Veronica Gonzales Seek Help Several minutes after 9:00 p.m., Veronica screamed for the attention of Patricia Espinoza, wholived at 1428 Hilltop Drive, Apartment 1, which waslocated directly across a courtyard from appellant and Veronica’s apartment. (RT 51:6204-6205; RT 92:11468-11469.) Veronica said that -8- she needed help because herniece had burnedin the bathtub. (RT 51:6205- 6206.) Patricia asked Veronica how someone could get burned in the bathtub, and Veronica told Patricia to come with her and cautioned Patricia not to call the police. (RT 51:6206; RT 92:11482.) Patricia followed Veronica into Apartment 7, in which appellant and Veronica lived. (RT 51:6206; RT 92:11470.) Genny was lying motionless on the bedroom floor and appellant wasat her side. (RT 51:6206-6207; RT 92:11471, 11487.) 3 Patricia said to appellant and Veronica that she could not do CPR,but that her sister Noemi could. (RT 51:6207; RT 92:11474.) Patricia told appellant and Veronica to call the police, but Veronica, who appeared nervous,insisted that the police not be called. (RT 51:6207-6208; RT 92:11482, 11484, 11498; RT 95:12031.) Noemi Espinoza’s nephew’s girlfriend, Denise Onate, told Noemi to come downstairs to assist a child who wasnot breathing. (RT 51:6191; RT 92:11446.) Noemi was a nurse’s assistant and knew how to perform first aid and CPR. (RT 51:6192; RT 92:11446.) She went toward appellant and Veronica’s apartment and saw appellant carrying Genny. (RT 51:6192; RT 92:11447.) Appellant said that Genny did not know howto regulate the water in the bath and had burnedherself. (RT 51:6193; RT 92:11449.) Noemitold appellant to bring Genny to Apartment 1, which wasbetterlit than the courtyard between Apartments 1 and 7. (RT 51:6193, 6200; RT 92:11449.) Appellant quickly brought Genny to Apartment 1, where Patricia lived, and laid Genny down on the rug. (RT 51:6193; RT 92:11449-11450, 11460.) Veronica, whostill appeared nervous, told appellant notto call the police because she was concernedthatthe police would blame them for what had happened. (RT 52:6273-6274.) Noemidetermined that Genny was dead; she was not breathing, had -9- no pulse, and wascold to the touch. (RT 51:6194; RT 92:11450-11451.) She touched Genny’s hand, which wasnotstiff. (RT 92:11451.) Noemi noticed a bald spot on the right side of Genny’s head, injuries to her neck and arm, and saw that Genny’s legs were red. (RT 51:6194; RT 92:11451.) Noemi and her nineteen-year-old nephew, Juan Lozano, performed CPR on Genny.’ (RT 51:6194, 6201-6202; RT 56:7021-7023, 7029; RT 92:11451- 11453, 11462-11463; RT 95:11937-11939, 11943-11944.) Juan attempted CPRfirst. (RT 56:7023; RT 95:11938-11939.) After finding no pulse or respiration, he cleared Genny’s airway and had nodifficulty opening her jaw. (RT 56:7022; RT 95:11938-11939.) When Noemi attempted CPR, Genny’s jaw wassufficiently open for her to blow into Genny’s airway. (RT 51:6202; RT 92:11452.) She performed two rounds of CPR,but she could not resuscitate Genny. (RT 51:6194; RT 92:11452-11453.) After one minute, Noemi stopped attempting CPR because she knew it was fruitless. (RT 92:11453.) AsJuan and Noemiwere attending to Genny, appellant showed little emotion, but seemed shocked. (RT 52:6271; RT 56:7027, 7033; RT 95:11948-11949.) Veronica appeared nervousand frightened. (RT 51:6197; RT 52:6272-6274; RT 56:7023; RT 95:11941.) She repeatedly asked, “What am I going to do?” (RT 56:7023; RT 95:11941.) E. Police Officers and Firefighters Arrive Aroundthe time Noemistoppedtrying to perform CPR on Genny, * Except for practicing on mannequins, this wasthefirst time either Noemi or Juan performed CPR. (RT 56:7030; RT 92:11446; RT 95:11944.) -10- the police arrived.” (RT 92:11453, 11463.) Despite Veronica’s insistence that the police not be called, at 9:20 p.m. Denise Onate called 9-1-1 at Patricia Espinoza’s direction. (RT 56:7020; RT 92:11484; RT 95:11936, 12626.) At 9:22 p.m., Sergeant Barry Bennett and Officer William Moe of the Chula Vista Police Department arrived at 1428 Hilltop Drive, Apartment 1, after learning that a young child who wasnot breathing was in that apartment. (RT 50:5889; RT 91:11293, 12627.) Veronica motioned for them to comeinto the apartmentandtold them that she had pulled Genny from the bathtub after discovering that she was not breathing. (RT 50:5890, 5908, 5933; RT 91:11295.) They cameinside the apartment and saw Genny lying on her back in the living room. (RT 50:5891, 5933; RT 91:11294.) They approached her, and, when checkingfor vital signs, discovered that Genny wascold andstiff. (RT 50:5895, 5934; RT 91:11299-11301.) Because they determined that Genny waslifeless, they did not attempt CPR. (RT 50:5894-5895, 5935; RT 91:11299.) Shortly afterward, firefighters arrived at the apartment. (RT 50:5835-5836, 5989; RT 93:11760; RT 98:12627.) John Miller, a fireman and an emergency medical technician, saw Genny on the floor and approached her. (RT 50:5990-5991; RT 93:11760.) Miller, who did not write a contemporaneousincident report and wastestifying solely from memory, recalled that he Genny had no pulse and wascold. (RT 50:5991, 6008; RT 93:11760, 11763.) He testified that he did not attempt CPR because he believed that rigor mortis had set in Genny’s jaw, which made > Juan erroneouslyrecalled that firefighters, one ofwhom used a flashlight, had arrived before police officers. (RT 95:11949-11952.) -11- her jaw hard to spread to facilitate CPR and suggested that she had not had a pulse and had not been breathing for too long to be resuscitated. (RT 50:5991-5994; RT 93:11762-11764, 11766.) Veronica said to Sergeant Bennett that she ran a bath for Genny and put her into the bathtub. Veronica added that she wentinto the kitchen to cook dinner and, when she returned twenty minuteslater, found Genny submerged under the water. Veronica said that she subsequently picked Genny up and ran to Apartment1 to call the police. (RT 50:5895.) Sergeant Bennett recognized the inconsistencies between Veronica’s story and Genny’s injuries. (RT 50:5898.) He observedthat Genny had been burned and had suffered other injuries. (RT 50:5899.) Consequently, he requested the assistance of homicide and child-abuse detectives. Having learned that Apartment 7 was the primary crime scene, he also asked for additional officers to assist with the investigation. (RT 50:5898.) Sergeant Bennett and Officer Moe then went to Apartment 7, where they found appellant and Veronica’s children watching television in the living room. (RT 50:5902, 5921, 5941; RT 91:11302-11305.) The children did not appear harmedorfearful. (RT 50:5921; RT 91:11315.) The police officers peeked into the bathroom and noted that the bathtub appeared to be dry. (RT 50:5904, 5941; RT 91:11306.) They took the children to the next- ® Although Veronica’s statements to Sergeant Bennett were admitted at the guilt phase of appellant’s first trial, the trial court ruled that they were inadmissible at the penalty retrial. (RT 90:11179-11187; see post, Claim Ii.) -12- door neighbor’s apartment.’ (RT 50:5924, 5941.) After Sergeant Bennett and Officer Moe left for Apartment 7, Officer Philip Collum,the third police officer to arrive at the apartment complex, stayed in Apartment | to watch appellant and Veronica. (RT 50:5906, 5910-5913, 5955, 5967; RT 91:11309; RT 95:11957.) Veronica said to Officer Collum that she drew a bath of lukewarm water for Genny and checked on her periodically while preparing dinner. Veronica stated that she found Genny submerged under the water, which had cooled, ten minutes after Veronica hadlast left the bathroom. (RT 50:5965.) Shesaid that she grabbed Genny and sought help.2 (RT 50:5978.) In his police report and previous testimony, Officer Collum stated that appellant and Veronica werecrying heavily and visibly upset. (RT 50:5969-5970, 5975; RT 95:11964-11965, 11969-11970.) Officer Collum testified at trial that appellant attempted to console Veronica. (RT 50:5960, - 5973-5974, 5978; RT 95:11961-11963, 11975-11976.) Appellant was emotional, anxious, and disturbed by what had happened. (RT 50:5968, 5978; RT 95:11976.)° ” Later that night, the children were taken to the police station, where they were examined and found to be uninjured, aside from age- appropriate, benign bumps and bruises. (RT 54:6639, 6641; RT 93:11741.) ’ Like Veronica’s statements to Sergeant Bennett, these statements to Officer Collum were admitted at the first trial, but were excluded at the penalty retrial. (RT 90:11179-11187; see post, Claim III.) ° Sergeant Bennett, who wrote nothing about appellant’s demeanor in his contemporaneouspolice report, testified that appellant was nonchalant and that Veronica’s demeanor wascalm and inconsistent with an aunt and guardian losing her niece. (RT 60:5896-5897, 5927-5928; RT 91:11297, 11311.) Officer Moe, whoalso neglected to write about appellant’s demeanorin thepolice report, testified that appellant appeared -13- Vv. Appellant And Veronica Gonzales’s Arrests Officer William Reber drove appellant to the police station for questioning. (RT 56:7041-7042; RT 95:11980.) Although he did not place appellant in handcuffs, appellant was calm, quiet, and very cooperative. (RT 56:7043; RT 95:11981-11984.) At the police station, appellant remained cooperative. (RT 56:7044; RT 95:11984.) Ten or fifteen minutes after appellant’s arrival at the station, Officer Reber placed appellant under arrest and handcuffed him. (RT 56:7044.) He also covered appellant’s hands, which had not been washedsince Officer Reberarrived at the apartment complex between 9:30 and 9:35 p.m., in paper bags. (RT 56:7041, 7044-7045; RT 95:11984-11985.) Appellant’s hands did not appear to have been burned. (RT 50:5982; RT 53:6608; RT 56:7045.) Officer Collum drove Veronicato the police station. (RT 50:5966; RT 95:11972.) After arriving at the police station, Veronica used the bathroom. (RT 50:5979; RT 95:11972.) While she was in the bathroom, Officer Collum wasinstructed not to permit Veronica to wash her hands; however, she washed her hands in the bathroom. (RT 50:5979; RT 95:11972-11973.) Officer Collum nonetheless bagged her hands, which did not appear burned, when heplaced her underarrest. (RT 50:5981; RT 95:11793.) VI. ThePolice Investigation After reentering Apartment 7 following the issuance of a warrant (RT 52:6387), detectives examined, photographed, and filmed the apartmentand seized scores of items. A blow dryer, a curling iron, a pair of indifferent. (RT 50:5938, 5950.) John Miller, who made no contemporaneousreport, testified that appellant displayed no emotion. (RT 50:5997; RT 93:11765-11766.) -14- handcuffs stored in a woman’s booties, and skin and toenail debris found in the bathtub were amongthe itemsseized.'° (RT 52:6313, 6318, 6378-6381, 6402-6406, 6414; RT 92:11517-11518, 11543-11544, 11568-11570.) Behind the northeast bedroom door, a small area was demarcated with the door, a nightstand, and a cord tying the inside doorknobto the ‘nightstand. (RT 52:6335-6336; RT 92:11522-11523.) A hole and blood stains were on the wall in this area. (RT 52:6337-6339, 6364-6366; RT 92:11524-11529.) In the northeast bedroom closet, a hook was attached with a cloth to the clothes rod. (RT 52:6325, 6327; RT 92:11530, 11538- 11540.) The hook wasvisible through a hole in the closet door. (RT 52:6326-6327; RT 92:11685.) A wooden box with blood and fecal stains was located underneath the hook, and there were blood stains on the back wall. (RT 52:6325, 6328-6329, 6333-6335, 6359; RT 92:11530, 11532- 11536, 11540-11541.) A bloodstained section of a pants leg, tied together with a woman’s scrunchy containing strands of hair, was found in or in front of the closet. (RT 53:6610-6612; RT 92:11533; RT 93:11692.) Other pieces of cut cloth were found nearby. (RT 53:6613-6614, 6631-6635; RT 93:11691, 11693-11696.) The doorto the northwest bedroom, which was used as the children’s bedroom, had no doorknob and had a lock accessible only from the outside; the bathroom wasvisible through the doorknob hole. (RT 51:6220-6223; RT 92:11518-11520, 11566.) Rodrigo Viesca, an evidence technician with the Chula Vista Police Department, performed temperature tests on the bathtub, blow dryer, and curling iron. (RT 52:6407-6409, 6415-6416; RT 53:6562-6564; RT 10 The evidence technicians did not find and seize the skin debris until four days after Genny’s death. (RT 52:6318; RT 92:11543-11544.) -15- 92:11557-11559, 11561-11565, 11571-11572.) The water in the bathtub was 148 degreesat the faucet and 140 degrees in the tub throughoutthe fifteen minutes it took to fill the bathtub 8% inches high. (RT 53:6562- 6564; RT 92:11557-11559, 11561.) The blow dryer reached 181 degreesat contact when on the high setting. (RT 52:6408; RT 92:11563.) The curling iron, on its high setting, reached temperatures of 134 degrees externally and 216 degreesinside the alligator clip. (RT 52:6415; RT 92:11571-11572.) VII. Appellant’s Interrogation After interrogating Veronica, Detectives Richard Powers and Larry Davis interrogated appellant for two-and-a-half hours, beginning at 9:43 the | morning after Genny’s death. (RT 55:6781, 6783, 6785, 6789; RT 94:11780-11781.) Throughoutthe interrogation, appellant unwaveringly said that he did not injure Genny. (CT 8:1752-1843.) According to appellant, he began running warm water for a bath and checked the water temperature. (CT 8:1761, 1774, 1796, 1800-1801, 1824.) The water was warm enoughfor the mirror to collect condensation, but steam did not rise from the water. (CT 8:1803, 1823.) He and Veronica then put Gennyin the bathtub. (CT 8:1761-1762, 1796, 1841.) Appellant quickly usedthe toilet, and he and Veronicaleft the bathroom. (CT 8:1841.) Appellant returned to the bathroom to turn off the water and told Gennyto stay in the bath. (CT 8:1775, 1801, 1815, 1841.) He went to the living room andlater to the store, and he forgot to check on Genny before leaving for the store. (CT 8:1817.) Approximately ten minutes after he returned from the store, Veronica pulled Genny, who was unconscious, from the bathtub. (CT 8:1764, 1776, 1824.) Appellant and Veronica tried performing CPR and then sought help from their neighbor, Patricia Espinoza. (CT 8:1778, 1829-1832.) Appellant said that the water being hot -16- wasan accident and that he andVeronica did not hold Gennyin the water. (CT 8:1801, 1834, 1838.) He regretted not checking Gennyin the bath more often. (CT 8:1835.) According to appellant, Genny burned her head when she knocked over a pot of boiling water onto herself while Veronica was cooking. (CT 8:1770.) Appellant would sometimesscold her or slap her handsto prevent her from reopening her scabs from that burn. (CT 8:1784-1786.) He and Veronica spanked Genny, but not hard enough to hurt her. (CT 8:1834.) Veronica tied Genny’s hands with cloth so Genny would notpick at her scabs. (CT 8:1787, 1819-1821.) Veronica once tied Genny’s hands behind her back, but appellant never did that. (CT 8:1819-1820.) Gennyslept in the bedroom closet three or four timesas discipline for picking at her scabs and rubbing heritchy head against the wall. (CT 8:1782-1783.) Genny also slept behind the bedroom door. (CT 8:1821.) He and Veronica put Genny in a wooden box for a few hours to scare her; the purpose wasto get her to stop picking at her scabs. (CT 8:1804-1805, 1810.) A couple of times, Genny, whodid notlike baths, was placed in the bathtub to scare her. (CT 8:1788-1789.) Also to scare Genny, he put up a hookin the closet and told Genny that her mother was coming. (CT 8:1807-1809.) Appellant stated that most of the time Veronica was the person who disciplined Genny. (CT 8:1805, 1836.) Hesaid that he did not inflict any intentional injuries. (CT 8:1838.) Appellant explained that, when Veronica did things to Genny with which he did not agree, he would tap on the wall to makeher think that someone was knocking at the front door. (CT 8:1839.) When Detective Davis asked appellant why Genny hadto die, appellant respondedthat he has been asking the same question. (CT 8:1837.) -17- VIII. Ivan Gonzales, Jr.’s Statements And Preliminary Hearing Testimony Detective Larry Davis interviewed appellant and Veronica’s oldest son, Ivan Gonzales,Jr., on July 22, 23, and 26 and October 25, 1995, when Ivan Jr. was eight years old. (RT 55:6855; RT 58:7305.) In addition, Ivan Jr. testified at the preliminary hearing on November8, 1995.’’ (PX 2:223- 312.) Duringthefirst three interviews, Ivan Jr. never suggested that anybody burned Gennyin the bath. He said that Genny took two baths on July 21, 1995, and, with one exception, said that Veronicaran the latter bath. (CT 8:1853, 1885-1886; CT 9:1901, 1903.) He said that he saw Gennyplayingin the bath that evening and saw heralonein the bathtub. (CT 8:1857; CT 9:1897, 1905.) He heard her say “ow”several times and believed thatshe had caused the burn by turning up the hot water. (CT 8:1851, 1853; CT 9:1902, 1904.) In July 1995, Ivan Jr. never indicated that Veronica or appellant had singled out Genny for abuse. Hesaid that his parents punishedherlike they did their own children. (CT 9:1914.) Although he was aware that Genny often ate andslept in the master bedroom,he did not discern anything sinister; rather, Ivan Jr. believed that Genny liked being in that bedroom. (CT 9:1900, 1914.) He said that he never saw the hook or box in the master bedroom closet and never observed Gennyrestrained by handcuffs. (CT ‘Due to the trauma that would have resulted from testifying against their parents at their capitaltrials, the trial court declared that Ivan Jr. and Michael Gonzales, appellant and Veronica’s second-oldest child, were unavailable to testify at trial. (RT 25:2591.) Nonetheless, the court ruled that Ivan Jr.’s preliminary hearing testimony was admissible at trial. (RT 29:3213-3214, 3246-3252; CT 13:2903.) -18- 9:1915, 1918.) He stated that Gennyslept in the bathtub when she dozed off during a bath. (CT 9:1915.) Healso said that a bruise to her head was self-inflicted. (CT 9:1922.) Ivan Jr. believed that the burn to Genny’s head wasself-inflicted and said that she lost her hair by repeatedly scratching the top of her head. (CT 9:1917-1918.) He recalled that Genny would get disciplined for picking her scabsor soiling herself. (CT 8:1882-1883; CT 9:1913-1917.) He said that she would get spanked or told to take naps. (CT 8:1882-1883; CT 9:1913.) Ivan Jr. said that, about three dozen times, Veronica used clothing to tie Genny’s hands so she would notpick at her scabs. (CT 9:1915-1916.) He said that his parents told him notto talk to strangers and neversaid he should nottalk to the police or anyone about what happened to Genny. (CT 9:1923-1924.) Through the middle of August 1995, Ivan Jr. consistently indicated to Karen Oetken, a social worker assigned to appellant and Veronica’s children, that he had not seen Genny being abused. (RT 58:7404-7406.) In late August, Ivan Jr. was placed in a different foster home, where helived with teenagers whom the probation departmentalso placed at the home. (RT 58:7402, 7407.) Ivan Jr. talked about Genny with the foster motherat this home.’? (RT 58:7408.) The substance of Ivan Jr.’s October 25, 1995 interview borelittle resemblance to the interviews conducted during July. Ivan Jr. said that on the night Genny died, appellant and Veronica both put Genny in a bathtub filled with hot water, closed the door, and later lied that Genny had '2 The court excluded evidence that the foster mother was believed to have improperly initiated conversations with Ivan Jr. or Michael about what had happened to Genny. (RT 58:7351, 7366-7367; RT 60:7570-7576, 7775-7777.) -19- drowned; he claimed that he knew Genny had not drowned because appellant and Veronica weretrying to torture andkill her. (CT 9:1938- 1939, 1941.) He declared that he knew that the bath water was hot because Genny always took hot baths. (CT 9:1939.) He stated that Genny kicked the water when she wasputinto the bath. (CT 9:1940.) Hesaid that he did not see both parents put Gennyin the bath because the door wasclosed, but said that they always put her in the bath together. (CT 9:1941.) He said that he obtained the rubbing alcohol from a neighbor before that bath. (CT 9:1945.) In the October 25, 1995 interview, Ivan Jr. said that his parents twice made Gennyeat her feces. (CT 9:1932-1933.) He believed that his parents were trying to get rid of one of the kids because they had too many children. (CT 9:1934.) Ivan Jr. said that they were trying to eliminate Gennyfirst and had stated they wanted togetrid of her, that they were torturing her, andthat he believed that Genny would die, which she did. (CT 9:1934-1935.) He stated that appellant and Veronica would use a knife to cut off Genny’s skin, rip her hair out, and hit and punch Genny. (CT 9:1935, 1937-1938, 1940.) Hesaid that one night, Genny went to bed with no scars, but his parents let her sleep for only two minutesand, in the morning, Genny hadall of her scars and hardly any hair. (CT 9:1945.) He stated that he saw his parents hang Genny, while her arms weretied behind her back, from a red hookin the closet. (CT 9:1946-1947.) Hesaid that Genny’s arms would bleed from the ligature. (CT 9:1948.) Hestated that his parents madeIvan Jr. andhis siblings throw a hard ball at Genny. (CT 9:1949-1950.) He claimed that when Gennyfirst cameto live with his family, his parents told him andhis siblings to be mean to Genny, throw her to the ground, and hit her. (CT 9:1953.) Hesaid that his parents would -20- either give Genny no food or give her food with so much hotsaucethatit wasinedible. (CT 9:1954.) Ivan Jr. declared that when his parents were asleep, he andhis siblings would make sandwiches for Genny, thoughtheir parents would punish them whenthey found out that Genny wasbeing given food. (CT 9:1954-1956.) He said that his parents told him nottotell people about what they were doing to Genny, that they covered up herscars whenthey hadvisitors, and that they kept the windowsclosed so neighbors would not hear Genny scream. (CT 9:1941-1942, 1951-1952.) At the preliminary hearing, Ivan Jr. testified on direct examination that he last saw Genny while both of his parents were bathing her andlast heard her when she was screaming and crying. (PX 2:236.) Healso testified that he and his siblings were lockedin their bedroom duringthis bath. (PX 2:235-237, 268-269.) He further testified that he did not see anybody put rubbing alcohol on Gennythe night she died. (PX 2:311.) During cross-examination by Veronica’s trial counsel, Ivan Jr. testified that the one time he saw Gennyin the bathroom that night, she wassitting in an empty bathtub and wasalonein the bathroom. (PX 2:275, 293.) Ivan Jr. also testified that he was sure he did not see appellant put Gennyin the bathtub that night. (PX 2:293.) In addition, Ivan Jr. testified that Genny would sleep in the bathtub or on the floor in his parents’ bedroom closet or behind the doorto that room. (PX 2:228-229.) He added thathe once saw Genny sleeping ina wooden box and another time he saw her hangingin the closet. (PX 2:249- 252, 292-293.) He said that several times he saw Genny with her hands or feet bound with clothing. (PX 2:243, 247-248.) Hetestified that Genny had all of her hair and no marksor bruises on her face when she cameto live with him and his family. (PX 2:240.) Herecalled that she lost her hair -21- whenhis parents burnedherand pulled her hair out. (PX 2:240, 302.) He said that never saw his parents burn her, but he saw them both pull her hair. (PX 2:240, 302-303.) He said that her head had been burned a numberof times with hot water from the bathtub faucet. (PX 2:283-286.) He stated that his parents made him andhis siblings throw hard balls at Genny and that his parents would hit them if they didn’t comply. (PX 2:244-246, 277- 282.) Ivan Jr. testified that Genny did not eat with him andhis siblings at the kitchen table and that Ivan Jr. and his siblings would get in trouble for giving her food. (PX 2:242-243.) IX. Forensic Evidence Dr. John Eisele, the deputy medical examiner who performed the autopsy on Genny, opined that Genny died of an immersion burn to the lowerhalf of her body that was consistent with Genny beingset into the water and held motionless. (RT 51:6070, 6084; RT 91 :11375.) In 140- degree water, Genny would have sustained those burns in one second. (RT 51:6099, 6111.) Dr. Kenneth Feldman,a child-burn expert, concludedthat it was a third-degree burn caused by an immersionin a hot liquid of between 140 and 150 degrees for no more than ten seconds. (RT 53:6479- 6481, 6486, 6489, 6523; RT 93:11605-11607, 11610-11611, 11649-11651.) Dr. Eisele estimated that Genny probably died between oneto three hours after being burned, but could have died within half an hour. (RT 51 6122, 6126; RT 91:11376.) Death was preceded by shock, which caused her body to be cold to the touch. (RT 51:6117, 6119; RT 91:11375; RT 92:11406.) Dr. Feldmantestified that Genny went into shock between one and four hours after the burn andthat death could have occurred minutes afterward. (RT 53:6495, 6524; RT 93:11618, 11620, 11651-11652.) According to Dr. Eisele, the burn on Genny’s head, shoulders, and -22- ear was caused byhotliquid at least a week before her death and had becomeinfected. (RT 51:6039-6043; RT 91:11332-11333.) Dr. Feldman opinedthat it was partly a third-degree burn caused by a flowing hot liquid and likely not accidental. (RT 53:6497-6503; RT 93:11623-11628.) In addition to those burns, Genny had abrasionsto herear, eyebrows, nose, lip, chin, neck, shoulders, forearm, and wrist, bruising underher eyes, and a torn gum; manyofthese injuries appeared to have been causedby ligatures. (RT 51:6045-6049, 6052-6056, 6061, 6064-6067, 6088-6089; RT 91:11333-11335, 11341-11346, 11349-11356, 11360, | 11378-11380.) She had grid-like injuries on her arms and cheeks, which wereinflicted with a blow dryer within hours of her death, and parallel marks of ulceration, which were caused by handcuffs.’ (RT 51:6047, 6057-6060, 6063, 6065, 6114; RT 55:6806, 6814-6815, 6832-6848; RT 91:11336, 11355-11364; RT 92:11418, 11423-11425, 11428-11435.) Gennyhadtriangular injuries on her shoulder that could have been burns caused by a hot curling iron. (RT 53:6513-6514; RT 93:11638-11639.) She also had many small abrasions on her upper cheek and lowernose that may have been caused bya hair brush several days before her death. (RT 51:6048, 6050; RT 91:11348.) Onboth thighs, Genny had a series of small bruises caused by fingertips of a person grabbing her from behind. (RT 51:6073-6075; RT 91:11365-11366.) She had a subdural hematoma, whichis an accumulation of blood between the brain and skull lining, that could have resulted from ‘3 Dr. Norman Sperber, a forensic odontologist, compared these injuries to the blow dryer and handcuffs found in appellant and Veronica’s apartmentand concluded that those items caused the injuries. (RT 55:6835- 6848; RT 92:11428-11435.) -23- being violently shaken within a day of her death. (RT 51:6076-6081; RT 53:6503-6506; RT 91:11371-11372; RT 93:11634.) Gennyalso had an old subanachroid bleed that could have occurred at any time since birth. (RT 51:6079-6080; RT 91:11372-11373.) She had petechial hemorrhaging in her right eye, which could have come from having her neck squeezed. (RT 51:6082; RT 91:11373-11374.) DNAanalysis revealed that Genny wasa possible source of the bloodstains in and around the northeast bedroom closet and the area behind the northeast bedroom door, as well as the bloodstains on the blow dryer. Furthermore, she wasa possible source of the skin and toenail debris. Appellant and Veronica were excluded as sources of the biological material. (RT 56:7005-7010; RT 95:11871-11872.) Brian Kennedy, who was qualified as an expert in crime-scene reconstruction, opined that the bloodstains around the hooktied to the clothes rod and bloody footprint stains located on the wall and wooden box beneath the hook were consistent with a 38-inch-tall child hanging from the hook while bleeding and pushing herself against the wooden boxor wall for leverage. (RT 54:6664, 6685-6687; RT 93:11569, 11675-11676.) Genny was adequately nourished, though small for her age. (RT 51:6037; RT 92:11400-11401.) Genny had an usually small thymus gland, which Dr. Eisele inferred was the result of chronic stress. (RT 51:6082- 6084; RT 91:11391-11393.) Dr. Eisele opined that Genny was chronically and repeatedly abused. (RT 51:6085, 6095.) Dr. Feldman concludedthat an adult of average strength could have inflicted herinjuries. (RT 53:6526; RT 93:11653.) X. Appellant And Veronica Gonzales’s Relationship Appellant’s cousin Rosa Maria Rangel introduced appellant to her -24- friend Veronica when appellant wasin his late teenage years. (RT 57:7240- 7241; RT 70:8922; RT 95:11994; RT 96:12302; RT 97:12366; RT 98:12563.) Veronica was appellant’s first girlfriend. (RT 70:8923; RT 97:12366.) Not long after they met, appellant moved to Corona. (RT 57:7241; RT 95:11994.) Against the advice of appellant’s parents, they married shortly thereafter. (RT 70:8923; RT 96:12302-12303; RT 98:12567-12568.) During their marriage, Veronica gavebirth to six children, whom appellant and Veronica raised until Genny Rojas’s death. (RT 54:6639; RT 56:7075; RT 68:8781; RT 93:11733; RT 95:12070.) In the early years of their marriage, appellant and Veronica often moved between Corona, where Veronica wasraised and her family lived, and Chula Vista, where appellant wasraised and his family lived. (RT 57:7241; RT 60:7710, 7744; RT 95:11995; RT 98:12568.) They ultimately settled down in Chula Vista. (RT 60:7745; RT 91:12378; RT 92:12569.) Although there were occasional moments in which appellant and Veronica appeared to be affectionate toward and in love with each other (RT 57:7168, 7203, 7222-7223, 7272; RT 95:12060, 12064; RT 97:12396, 12399), Veronica’s abusiveness, infidelity, and dominance marred their marriage. (RT 56:7078-7079; RT 57:7105-7107, 7133-7135, 7148-7150, 7200-7202, 7213-7218, 7243, 7247-7249, 7261-7277; RT 68:8747-8748; RT 70:8924-8925; RT 92:11491-11495; RT 95:11997-11998, 12046-12052, 12056, 12083-12085; RT 96:12111-12122, 12127-12129, 12137-12142, 12152-12157, 12164-12166, 12312; RT 97:12367-12373, 12383, 12476; RT 98:12577.) Mere monthsafter the wedding, Veronica began displaying her abusive behaviorin the presence of appellant’s family. Thefirst time -25- appellant and Veronica moved together to Chula Vista, they resided with appellant’s sister and brother-in-law Patricia and George Andrade. (RT 57:7261; RT 97:12367.) Patricia observed several altercations during the latter part of the approximately six months in which appellant and Veronica lived with the Andrades. (RT 57:7267; RT 97:12367-12368.) These incidents would begin with Veronica hurling profanities and epithets toward appellant, to which appellant would not respond. (RT 57:7261-7262; RT 97:12368-12369.) Whenthe altercations ended, appellantleft his and Veronica’s bedroom with his shirt stretched out, scratches on his face and arms, and, sometimes, bruises or a swollen lip; Veronica emerged unscathed, but her face was red and tense. (RT 57:7266; RT 97:12371- 12373, 12396.) After these fights, appellant would walk away and return 30 to 90 minutes later. (RT 57:7277; RT 97:12372.) When appellant and Veronica lived in Chula Vista during the following year, they lived with appellant’s parents, sister Guadalupe Baltazar, and brother-in-law Santiago Baltazar. (RT 56:7077; RT 95:12082.) During that time, Guadalupe never saw appellant be verbally or physically abusive toward Veronica; however, she observed Veronica hurl objects at and assault appellant. (RT 56:7078; RT 95:12083.) On one occasion, Veronica droppedthe large hoodoftheir car on appellant’s head while appellant was repairing the vehicle. Appellant did notretaliate. (RT 56:7079; RT 57:7200-7202; RT 95:12083-12085; RT 96:12111-12112.) A yearlater, appellant and Veronica lived with their friends Frank and Lorena Peevier for approximately three months. (RT 57:7212, 7230, 7242; RT 95:11995-11996, 12045-12046.) During this time Lorena, who had a close relationship with Veronica, spent a lot of time with appellant and Veronica throughout each day. (RT 57:7213; RT 95:12045-12046.) -26- She observed appellant and Veronica argue two or three times per week. (RT 57:7213; RT 95:12065.) During these spats, Veronica would scream at andtry to provoke appellant, who would remain calm and plead with Veronica to quiet down. (RT 57:7213-7215; RT 95:12046-12048.) Veronica routinely would threaten to leave appellant and take their children with her. (RT 57:7214; RT 95:12047.) In several of these altercations, Veronica resorted to physical violence. (RT 57:7215; RT 95:12049, 12065.) In these instances, she would punch andscratch appellant, who would neverretaliate and instead would merely attempt to protect himself. (RT 57:7215-7216; RT 95:12049-12052.) Afterward, to calm himself down,appellant would run or walk away andreturn 30 to 60 minuteslater. (RT 57:7217; RT 95:12052.) Following a particularly intense altercation, in which Veronica amplified her threat to leave and take the children by punching and scratching appellant so he wouldlet go of the child whom he washolding, appellant ran away and climbedup a utility pole. (RT 57:7223-7226, 7232-7234; RT 95:12052-12054.) Frank wentto the utility pole and convinced appellant to come down.'* (RT 95:12002.) The following year, while appellant and Veronica wereliving in Corona, Veronica’s cousin Eugene Luna, Sr. saw Veronica punch appellant in the mouth. (RT 57:7105, 7114; RT 96:12137.) Rather than respond physically or confront Veronica verbally, appellant just stood there. (RT 57:7106; RT 96:12138.) That evening, Eugene Luna,Jr. saw Veronica '* Frank Peevlertestified that appellant told the police officers to shut up and leave him alone and uttered profanities at the officers, but that appellant did not spit at the police officers. (RT 95:12001-12002.) Lorena Peevlertestified that Frank hadtold her that appellant hadspit at the police officers. (RT 95:12063.) -27- throw a plate at appellant that hit appellant in the mouth and cut him. (RT 57:7135, 7154; RT 96:12154-12156.) Again, appellant did notretaliate. (RT 57:7135; RT 96:12156-12157.) He merely asked Veronica what he had done wrongandlater exclaimed to Eugene Sr. and EugeneJr. that he had done nothing wrong. (RT 57:7155; RT 96:12156.) On another occasion aroundthis time, Veronica’s drunken outburst directed toward appellant at a McDonald’s parking lot, during which appellanttried in vain to convince Veronica to calm down,resultedin police intervention. (RT 57:7155-7162, 7168-7177.) Neither Eugene Jr. nor EugeneSr. ever observed appellanthit, strike, or physically abuse Veronica.” (RT 96:12136, 12153.) In addition to abusing appellant, Veronica bore a child sired in an adulterous affair. For several months in 1989 and 1990, Veronica and EugeneJr., who at the time was her sixteen- and seventeen-year-old cousin, had a sexual relationship. (RT 57:7133-7134; RT 96:12152-12153.) They would have sex in appellant and Veronica’s apartment while appellant was at work. (RT 57:7134; RT 96:12152-12153.) Appellant received his first hint ofthe affair after Ivan Jr. said that he had seen Veronica and EugeneJr. kiss. (RT 57:7111, 7121.) At appellant’s request, Eugene Sr. asked Eugene Jr. whether he was having an affair with Veronica; EugeneJr. denied the allegations. (RT 57:7111, 7137; RT 96:12140-12141, 12158.) Approximately one month later, appellant again approached EugeneJr. about his suspicions, which EugeneJr. stopped denying. (RT 57:7136; RT 15 Yn rebuttal, Veronica’s brother-in-law Victor Negrette testified that Veronica once said to him that appellant had hit her. (RT 60:7718.) Martha Halog, a neighbor,testified that Veronica told her that appellant had pulled a telephone outofthe wall. (RT 60:7614; RT 98:12615.) -28- 96:12160.) Hurt because EugeneJr. had the affair and lied aboutit, appellant tried to punch EugeneJr. but landed only a glancing blow. (RT 57:7136, 7138; RT 96:12159, 12170-12171.) EugeneJr. then knocked down appellant with a punch and helped appellant back to his feet. (RT 57:7136; RT 96:12159.) Appellant made no more efforts to express his displeasure to Eugene Jr. (RT 57:7137; RT 96:12160-12161.) Eugene Jr. accompanied Veronicato a health clinic where Veronica took a pregnancytest, which revealed that she was pregnant. (RT 57:7148; RT 96:12164.) On the ride home, Veronica told EugeneJr. that she believed he wasthe father. (RT 57:7149; RT 96:12165.) Shortly afterward, while appellant was in earshot, Veronica again told Eugene Jr. that she thoughtthat he had fathered the child. (RT 57:7150; RT 96:12165-12166.) Indeed, Anthony Gonzales, the child to whom Veronica gavebirth several monthslater, bears a strong physical resemblance to Eugene Jr. (RT 57:7112; RT 96:12142.) After learning that Veronica’s affair with her teenage cousin resulted in her pregnancy, appellant traveled from Corona to Chula Vista to speak to Frank and Lorena Peevler. (RT 57:7219, 7244; RT 95:12005, 12057.) Ina rare display of emotion, appellant had tears in his eyes as he told them aboutthe affair and pregnancy. (RT 57:7219; RT 95:12006, 12057, 12059.) They advised appellant that he would have to decide how to handle his predicament. (RT 57:7219; RT 95:12057, 12060.) Appellant returned to Coronato live with Veronica and their children. (RT 57:7220; RT95: 12058, 12060.) After Anthony was born, appellant raised him as if he were appellant’s biological son. (RT 57:7268; RT 95:12082.) It was clear to everyone whoobservedtheir marital relationship that Veronica dominated appellant. (RT 57:7106-7107, 7218, 7243, 7247; RT -29. 95:11997, 12056; RT 96:12128.) She often screamed at him.'® (RT 57:7213, 7261-7264; RT 92:11491-11495; RT 95:12046-12047; RT 96:12137-12140, 12312.) When Veronica waspresent, appellant wasless comfortable and spoke muchless freely than when she was not. (RT _57:7249; RT 68:8747-8748; RT 70:8925; RT 97:12383.) When appellant visited his parents, he would be open and affectionate only when Veronica was not with him. (RT 70:8924; RT 97:12476; RT 98:12577.) When appellant lived with Frank and Lorena Peevler, appellant would ask Veronica for permission to go with Frank to the store. When shesaid no, appellant meekly accepted his fate. (RT 57:7243; RT 95:11998.) Veronica’s dominance was even apparent when she joined appellant at the grocery store: Appellant would cower behind her as she did all the talking and handledthe transaction. (RT 56:7055, 7063; RT 96:12127-12129.) XI. Appellant’s Character People consistently described appellant as being passive, meek, timid, nonviolent, quiet, shy, mild-mannered,polite, and respectful. (RT 51:6140; RT 52:6253, 6356; RT 56:7050; RT 57:7129, 7138, 7210, 7240, 7272; RT 60:7705; RT 67:8535, 8544-8546, 8564, 8571-8573, 8591, 8601- 8604, 8612; RT 68:8649-8650, 8658, 8747; RT 70:8897-8898, 9010; RT 92:11491; RT 95:11993-11994, 12018-12020, 12042-12044; RT 96:12123, 12162, 12179, 12232-12233, 12238, 12243-12244, 12249-12250, 12277- 12279, 12288, 12303; RT 97:12343, 12357, 12360, 12365-12366, 12414- 16 In rebuttal, Victor Negrette testified that he heard appellantyell at Veronica. (RT 60:7723-7724.) Martha Halog heard them scream at each other. (RT 60:7609; RT 98:12606-12609.) Patricia Espinoza often heard them yell at each other, but she heard Veronica more often than she heard appellant. (RT 92:11495-11496.) -30- 12415, 12472-12473, 12480-12481.) He was a follower, not a-leader. (RT 96:12232, 12243-12244, 12278.) As a teenager, appellant would hide behind things or people and rarely talk. (RT 57:7211; RT 95:12042.) Fora significant period of time, instead of talking directly to Lorena Peevler, who then was Frank’s girlfriend, appellant would conduct conversations with her through Frank. (RT 57:7211; RT 95:12043.) Eduardo Gutierrez, a friend from junior high and high school, told appellant that he should stand up for himself when he got teased; appellant laughed off the advice. (RT 67:8602; RT 96:12278.) | People who managedthe grocery stores where appellant shopped easily discerned these character traits. When shopping, appellant consistently looked down and appeared quiet, embarrassed, and submissive. (RT 52:6253, 6356; RT 56:7050, 7063; RT 96:12124, 12179.) Althoughit was well-established at two stores near his apartment that he wasentitled to purchase items on credit during the course of a month and pay the accumulated bill at the beginning of the following month, appellant would ask to receive credit every time he wentinto each ofthose stores, which he did once or twice per day. (RT 51:6139; RT 52:6244, 6252, 6254; RT 56:7052; RT 96:12124-12125.) XII. Discipline In Appellant’s Family Of Origin Appellant’s parents did not discipline appellant or his siblings excessively. Appellant’s mother, Belia Gonzales, primarily disciplined appellant and his siblings. (RT 57:7238; RT 68:8773; RT 95:11990; RT 96:12301.) When she meted out punishment, she typically forbade her children from playing outside with their siblings or barred them from watching television. (RT 68:8731; RT 96:12309; RT 97:12352.) She rarely resorted to physical discipline; when she did so, she spanked them with a -31- hand or belt. (RT 68:8732; RT 97:12352.) She was neverphysically abusive. (RT 57:7238; RT 95:11991; RT 97:12353.) Occasionally, Belia would delegate the disciplining to appellant’s father, Armand Gonzales andtell the children to wait until their father came home. (RT 96:12199, 12297, 12309.) When Armandarrived, he would speak sternly to the children. (RT 68:8773; RT 91:12309.) He never disciplined the children physically. (RT 57:7239; RT 68:8773; RT —95:11991.) XIII. Discipline And Violence In Veronica Gonzales’s Family Of Origin" Veronica was reared in a home in which her mother, Tillie, excessively disciplined her and hersisters. Tillie’s abuse of her children, Anita, Mary, and Veronica, cameto the attention of the Riverside County Departmentof Social Services in August 1980, when personnel in the Sheriff Satellite Unit observed scratches and bruises over most of Mary’s body and two quarter-sized knots on her head. Mary explainedthat Tillie inflicted those injuries by beating her regularly with sticks and boards to punish misbehavior. Shealso said that she had suffered significantly more severe injuries on other occasions. (CT 7:1528.) Alexandra Krahelski, a Social Service Practitioner, investigated the household and concludedthat Tillie inflicted “unbelievable physical abuse” on Mary. (CT 7:1529-1530.) Veronica Gonzales’s cousin Beverly Ward told Krahelski that she '” The trial court excluded this evidence of violence, discipline, and abuse in Veronica Gonzales’s family of origin. (RT 21:1845-1848; RT 28:3096-3103; RT 48:5763; RT 49:5807-5813; RT 56:6944-6945; RT 58:7454; RT 60:7684-7685; RT 65:8282-8283; RT 103:12940; see post, Claim I.) -32- observed Tillie hit Mary several times with a broomstick and burn herfeet with newspapersthat Tillie had ignited. Ward also saw Tillie pulling Anita, Mary, and Veronica by their hair. (CT 7:1532.) She explainedthat Tillie, whenintoxicated, was frightening and violent. (CT 7:1532-1533.) She feared for Anita, Mary, and Veronica’s lives. (CT 7:1533.) Shirley Leon, Veronica’s friend, heard a conversation between Mary and Veronica regarding how Tillie used to abuse them. (CT 7:1534.) They discussed how Tillie would punish them by tying them together back- to-back andsetting their legs on fire. (CT 7:1534-1535.) Veronica Gonzales’s uncle Paul Becerra said that Veronica wasthe favorite stepdaughter of Isaias Ortiz (“Chine”) and that he and Tillie treated her better than Mary and Anita. Tillie would scream at her daughters and call them “pinche pendeja cabronas,” which means“fucking ass bitches.” Mary showed Becerra the burns on her bodythat Tillie had inflicted. (CT 7:1533.) Tillie would start fights while she was intoxicated. On one of those occasions, she tried to punch Becerra’s stepdaughter Rachel and attempted to attack Becerra when he interceded. (CT 7:1534.) Ward recalled that Tilliewouldinitiate verbal altercations and shoving matches with and throw objects at Chine. (CT 7:1531.) Becerra saw Tillie hit Chine, but never observed the converse. When Becerratried to intervene in onealtercation, Tillie hit Becerra. (CT 7:1534.) XIV. The Impact Of Appellant’s And Veronica’s Backgrounds® Dr. Patricia Perez-Arce, a neuropsychologist who has studied how '8 Thetrial court excluded Dr. Perez-Arce’s testimony regarding Veronica Gonzales. (RT 47:5600-5601; RT 48:5763; see post, Claim I.) In light of that ruling, Dr. Perez-Arce did nottestify at eithertrial. -33- Latino culture impacts family relationships and mental health, explained that children identify with their parents and model their behavior after their parents’ behavior. (RT 47:5518-5520.) That is a fundamentaltenet of social learning theory. (RT 47:5521.) Dr. Perez-Arce noted the abuse and lack of nurturing in Veronica’s family of origin. (RT 47:5536.) Tillie was an alcoholic who wasabusive toward Chine and her children. (RT 47:5534.) She exhibited impulsive or reactive behaviors and responded threateningly or violently toward stressful situations. (RT 47:5536.) Tillie hit Mary with sticks all over her body, thereby creating visible bruises. She would pull Veronica or Mary’s hair, burn their legs or feet, or tie their hands behind them. Veronica and her siblings learned and were influenced by Tillie’s coping mechanisms. (RT 47:5537.) Dr. Perez-Arce opined that, according to social learning theory, one would expect Veronicato have difficulty coping with frustrations and to behave in a threatening or hurtful manner when faced with stress. (RT 47:5538.) In Dr. Perez-Arce’s opinion, Veronica would be expected to function normally so long as her frustration-tolerance level was not reached. (RT 47:5539.) If that level were exceeded, Veronica would experience heightenedlevels of stress, to which she would be expected to respond by resorting to the extreme physical abuse she learned from her mother. (RT 47:5540). Dr. Perez-Arce opinedthat child-rearing practices to which appellant was exposedas a child would have greatly influenced the manner in which he reared children. She would not expect him to exercise severe physical discipline or abuse on his own children or children visiting his home. She concludedthat nothingin appellant’s history suggested that he -34- had a low frustration tolerance or was impulsive. (RT 47:5532.) She noted that appellant’s behavior was not threatening or assaultive and that appellant’s parents did not fight with each other. (RT 47:5533.) XV. Genny Rojas’s Symbolic Meaning To Veronica Gonzales!” Veronica harboredill will toward her sister Mary, who was Genny’s mother. While she was interrogated mere hours after Genny’s death, Veronica made these feelings clear. Detective Larry Davis asked Veronica why Mary wasin a rehabilitation facility. Veronica responded, “Cause she’s little bitch.” (CT 2:383.) When Detective Davis asked her why Genny didn’t scream, Veronica said, “She does not talk. Her damn mother. ... I’m saying her damn mother gets her so goddamn freaked out (unintelligible).” (CT 2:454.) . Mary hadlied to Veronica and said that she and appellant had an affair. (CT 8:1840.) Veronica believed that Mary hadan affair with appellant and accused appellant of fathering Genny. (RT 47:5543.) Dr. Perez-Arce opined that Genny had many symbolic meanings for Veronica that related to her childhood and herrelatives who abandonedor abused her. (RT 47:5544.) Veronica harbored tremendous resentment toward Tillie and Mary and presumably blamed both ofthem for foisting Genny upon her. Moreover, she erroneously believed that appellant may have been Genny’s biological father. (RT 47:5543.) The trial court excluded the evidence of Veronica’s rancor toward Mary Rojas, as well as Dr. Perez-Arce’s expert testimony on this topic. (RT 21:1860-1861; RT 28:3090-3091; RT 47:5600-5601; RT 48:5763;RT 65:8291; RT 103:12940; see post, Claim II.) -35- XVI. Appellant’s Childhood Appellant, the youngest ofArmand and Belia Gonzales’s four children, was born in San Diego on July 23, 1966. (RT 70:8904; RT 98:12514.) Appellant lived in Chula Vista and often traveled with the family on weekendstovisit relatives in Corona, Tijuana, and Mexicali. (RT 68:8660-8661, 8675, 8776, 8786; RT70:8917; RT 97:12354-12355.) Appellant was a well-behaved, affectionate boy who had an usually strong bond with his mother. (RT 68:8665; RT 70:8905-8906; RT 98:12517- 12518.) He was raised Roman Catholic and participated in the major religious rites of passages, including baptism, confirmation, andfirst communion. (RT 67:8608; RT 68:8676, 8774-8775; RT 70:8917, 8920; RT 96:12287-12288, 12297-12298;RT 97:12496-12407; RT 98:12531-12533.) Whenhewasa little boy, appellant played a lot with his older siblings. (RT 68:8661.) Appellant wouldassist his father with gardening, watch him makerepairs around the home, and accompany him ontrips to the garbage dump. (RT 68:8770-8772, 8779.) When he wassix or seven years old, appellant played the drums,albeit with little skill. (RT 68:8663; RT 97:12413; RT 98:12526-12527.) Later in his elementary school years, appellant learned to play the guitar. (RT 67:8543-8544; RT 68:8663; RT 96:12228-12230, 12237, 12298-12299.) In contrast to his experience with the drums, appellant became an accomplished guitar player. (RT 67:8543; RT 68:8664; RT 96:12230, 12237.) Appellant often played guitar with Mario Ortiz, who was appellant’s best friend at the time. (RT 68:8675, 8771-8772; RT 96:12238-12241; RT 97:12411; RT 98:12524-12525.) Appellant lost touch with Mario after they began attending different junior high schools. (RT 96:12244.) Appellant thereafter developed a close -36- friendship with Frank Peevler; they were like brothers. (RT 57:7235-7236; RT 95:11989.) They spent a lot oftime at each other’s homes, and they regularly slept over one another’s homes. (RT 57:7236-7237; RT 95:11989-11990, 12017-12019; RT 96:12247-12249.) When appellant was a teenager, he was shy aroundgirls. (RT 57:7240; RT 95:11993.) Frank tried to prod appellant to become more assertive aroundgirls, but that endeavor wasfruitless. (RT 57:7240; RT 95:11994.) Appellant had strong relationships with his sisters.”” Appellant remainedcloseto his sister Patricia Andrade, whois one year older than appellant, while she lived with appellant at their parents’ home. (RT 68:8662, 8728-8729; RT 97:12351.) They used to walk to and from school, ride bicycles, and climb trees together. (RT 68:8736; RT 97:12357.) Appellant’s oldest sibling, Guadalupe Baltazar, and appellant provided each other with emotional support. (RT 68:8662, 8669.) Before Guadalupe got married, appellant chaperoned her dates with Santiago. (RT. 68:8666-8667; RT 97:12420.) Appellant and Guadalupe have continued to conclude their telephone conversations by saying that they love each other. (RT 68:8676.) While Guadalupe’s newborn son, Santiago Jr., was hospitalized for three months, appellant wassupportive and prayed for him. (RT 68:8685-8686; RT 97:12422-12424.) Appellantregularly helped his elderly aunt and neighbors with yard work and other matters. (RT 68:8671-8672; RT 97:12416-12417.) He also would changehissisters’ babies’ diapers. (RT 68:8668.) °° Evidenceof appellant’s relationship with his older brother wasnot elicitedattrial. -37- Appellant was the second person in his immediate family to graduate from high school, and this accomplishment wasthe source of great pride for appellant and his family. (RT 67:8612; RT 68:8673-8674, 8780; RT 70:8913-8914; RT 96:12300-12301; RT 97:12417-12419; RT 98:12535-12536.) After graduating from high school, appellant received vocationaltraining in electronics and earned a certificate. (RT 68:8779- 8780; RT 70:8921-8922; RT 98:12561-12562.) While studying for his electronics certificate, appellant worked at a job in which he filled vending machines. (RT 98:12563.) XVII. Appellant’s Children’s Love For Appellant Appellant and Veronica’s six children regularly expressed their love for appellant and discussed how they miss him.”’ (RT 67:8583-8584; RT 68:8708-8710, 8723; RT 70:8927-8930; RT 97:12459-12461; RT 98:12579.) Wheneverthey visited their paternal grandparents, Ivan Jr. and Michael, who wereliving in a foster home, asked Armandand Belia about how appellant was doing and requested that appellant be told that they love him very much. (RT 70:8929-8930; RT 97:12462; RT 98:12581-12582.) The youngest four children were living with Armand and Belia and often spoke abouttheir feelings for appellant. (RT 68:8708; RT 70:8927; RT 97:12461-12462; RT 98:12579.) Vanessa and especially Anthony often said that they missed appellant, loved him, and wished he werehome. They regularly asked when appellant will come home. (RT 68:8708; RT 21 Due to the trial court’s ruling that evidence of appellant’s love or good fathering of his children would open the door to rebuttal evidence of negative aspects of his fathering, appellant did not present evidence of his love for, or loving and fatherly acts toward, his children. (RT 65:8235- 8236, 8239-8240, 8331-8333, 8350.) . -38- 97:12461-12462; RT 98:12579-12580.) Anthony routinely blew kisses toward a photo of appellant. (RT 70:8928.) Valerie, the youngest daughter, stated to her family that she missed and loved appellant, but said so less frequently than Vanessa and Anthony. (RT 68:8708; RT 97:12462; RT 98:12580.) In addition, she talked to her preschool teacher about her love for appellant. (RT 67:8584; RT 97:12485-12486.) Alex also said that he loved and missed appellant and would ask appellant when he was coming home. (RT 68:8709; RT 98:12580.) When Armandand Belia visited appellant, they brought one ofthe four youngest children with them. (RT 67:8583; RT 68:8709-8710, 8789- 8791; RT 70:8929; RT 97:12459.) The children were always happyto see appellant when they visited and asked if they could stay with him. (RT 68:8709; RT 70:8929; RT 97:12460; RT 98:12580.) Appellant could not have contact visits with them, so the children would blow kisses at appellant and place their hands up to the glass to get as close as possible to touching appellant. (RT 67:8583; RT 68:8710, 8790; RT 97:12459-12460.) Appellant called his parents every day, and his children always wanted to speak to him. (RT 70:8928; RT 97:12459; RT 98:12581.) When appellant called, Alex would sing appellant the songs that he learned in school. (RT 70:8929.) The children got very excited wheneverthe phone rang because they hoped it was appellant who wascalling. (RT 70:8928- 8929; RT 97:12459.) XVIII. The Impact Appellant’s Execution Would Have On His Family Appellant’s children would be utterly devastated if appellant were executed. (RT 68:8724; RT 97:12495-12496; RT 98:12584.) Because they are older than the other children and have special bonds with appellant, the -39- impact on Ivan Jr. and Michael would be especially damaging. (RT 68:8724; RT 97:12496-12497.) Appellant’s sisters, Guadalupe Baltazar and Patricia Andrade, articulated that appellant is a part of them and that executing him would be killing a part of them. (RT 68:8698, 8753-8754; RT 97:12390, 12464.) Their children, particularly their oldest daughters, Jacqueline Baltazar and Sandra Andrade, also would be devastated. (RT 97:12390-12391, 12464.) Appellant’s uncle and godfather, Alexander Gonzales, the person for whom appellant’s youngest child was named, said that it would be deeply hurtfulif ‘appellant were executed because he loves appellant very much and because the execution would hurt appellant’s parents, siblings, and children. (RT 67:8613; RT 96:12290.) Appellant’s father, Armand Gonzales, expressed that a piece of his heart would be pulled out if appellant were executed. (RT 68:8792; RT 96:12305.) Appellant’s mother, Belia Gonzales, testified poignantly that appellant means the world to her and Armand,that they love appellant very much,and that they need him. (RT 70:8930-8931.) She and Armand had beenill. (RT 68:8792; RT 70:8930; RT 98:12584.) She articulated that she could not go on without appellant if he were executed. (RT 70:8930; RT 98:12584.) XIX. Appellant’s Exemplary Jailhouse Behavior Appellant behaved flawlessly while incarcerated at the Central Detention Facility and George Bailey Detention facility. Appellant did not receive a single rules violation report and never created problemsortrouble for the corrections officers. (RT 67:8536; RT 68:8648-8649, 8657-8658; RT 97:12343-12344, 12348.) Appellant was quiet and usually kept to himself. (RT 67:8535; RT 68:8649, 8658; RT 97:12343, 12349.) He -40- treated inmates and corrections officers with respect, and he always ~ followed instructions andtheinstitutional program. (RT 67:8535; RT 68:8650, 8658; RT 97:12349-12350.) He wasa tank captain. (RT 67:8498, 8537; RT 95:11897; RT 97:12344.) While incarcerated, appellant took bible-study courses to further his Christian faith, and regularly prayed with a chaplain. (RT 67:8534; RT 96:12256.) Reverend James Budlove, a chaplain, believed that appellant’s faith was sincere. (RT 96:12258.) Appellant was anxious to receive spiritual help and encouraged other inmates to join him in bible study. (RT 96:12256-12257, 12259-12260.) James Park, a prison consultant who usedto classify prisoners for the Department of Corrections, concluded that appellant would unquestionably be a useful and conforming prisoner and would not be a dangerto corrections officers or other inmates.” (RT 67:8498; RT 95:11901.) He basedthat opinion on appellant’s age, willingness to do work, respectable work history, high-school diploma, electronics certificate, bible study, tank captaincy, and conforming behaviorin jail. (RT 67:8497- 8499; RT 95:11891, 11896-11898.) 2 James Park alsotestified to the prison conditions appellant would face if he were sentencedto life imprisonment without the possibility of parole. (RT 67:8478-8528; RT 95:11876-11924.) Despite thetrial court’s reservations about the admissibility of prison-condition evidence, the prosecutor did not object to this evidence. (RT 67:8466-8469.) -4]- CLAIMS OF ERROR I THE EXCLUSION OF EVIDENCE SUGGESTING THAT VERONICA GONZALES MASTERMINDED AND SOLELY PERPETRATED THE ABUSE INFLICTED UPON GENNY ROJAS VIOLATED THE EVIDENCE CODE AND APPELLANT’S CONSTITUTIONAL RIGHTS Throughout the proceedingsbefore the trial court, appellant sought to present evidence that Veronica Gonzales witnessed, and was sometimes victimized by, physical abuse that wasstrikingly similar to the abusive acts perpetrated on Genny Rojas. This was circumstantial evidence ofthird- party culpability. Contrary to the prosecutor’s assertions, appellant did not attempt to use the evidence of Veronica’s background to showherguilt through the inferences forbidden by Evidence Code section 1101, subdivision (a). Indeed, appellant did not endeavor to prove that Veronica had the proclivity to abuse children or that she acted in accordance with such a disposition. Rather, appellant strove to show that Veronica learned excessive disciplinary techniques from her mother, modeled her behavior after her mother’s, and applied those techniques against Genny. This evidence wascrucial to appellant’s guilt-phase defense that Veronica was the sole perpetrator and his principal penalty-phase defense that appellant was a minor participant. Erroneously concluding that the proffered evidence constituted character evidence lacking a valid evidentiary purpose, the trial court improperly excluded the evidence. By barring this evidence, the trial court ran afoul of the rules of evidence and violated appellant’s constitutional rights to present a complete defense, to call witnesses in his defense, to present mitigating evidence, to rebut aggravating evidence, and to have a fair and reliable capital-sentencing determination. This grave -42- error requires vacating the conviction, special circumstance, and death sentence. A. Facts And Procedural History Atboth the guilt phase and the penalty phase, appellant attempted to introduce evidence of physical abuse in Veronica’s family of origin as well as expert testimony that Veronica, when faced with a stressful situation, would be expectedto utilize the excessive disciplinary techniques she learned from her mother. (See ante, at pp. 32-35.) Thetrial court excluded this evidence. As a result, neither the jury that convicted appellant and found the special circumstance nor the jury that sentenced appellant to death was awareofthis critical exculpatory evidence. The abuse inflicted on Gennyparalleled the physical abuse that Veronica had observed and occasionally experienced. The four methods of abuse directed at Genny — burning,beating, confining, and hair pulling — were techniques used by Veronica’s mother Utilia Ortiz (“Tillie”) against her daughters, Mary Rojas, Anita Negrette, and Veronica Gonzales. Genny’s death was caused by an immersion burn to the lowerhalf of her body; in addition, she suffered a burn from a hot liquid on her head and neck and had numerousother burnsinflicted with a blow dryer and curling iron. (RT 51:6039-6043, 6084; RT 53:6513-6514; RT 55:6832-6833.) Tillie burned her daughters’ legs and feet. (CT 7:1532-1535.) Genny had numerousfacial injuries, bruising on her thighs, and a recently inflicted subdural hematomathat suggested she had been beaten. (RT 51:6045-6050, 6073-6081.) Tillie beat Mary with sticks, including a broomstick, and boards. (CT 7:1528, 1532.) Genny was confined by having her hands bound or handcuffed, having a ligature placed around herhead, being hanged from a hook,and being placed in a wooden box or a small area -43- behind the master bedroom door. (RT 51:6052-6067; RT 52:6325-6339; RT 54:6669-6690.) Tillie bound Mary and Veronica’s legs together before burning them. (CT 7:1534-1535.) Genny was missing hair on areas ofher head that had not been burned, and evidence suggested that her hair had been pulled out. (PX 2:240, RT 51:6041.) Tillie pulled her daughters’ hair. (CT 7:1532.) Numeroustimes, appellant soughtto introduce evidence of excessive discipline in Veronica’s family of origin and expert testimonythat disciplinary techniques are passed from one generation to the next. Appellantfiled a motion in limine to admit this evidence to show that Veronica wasraised in a homein which discipline was excessive and abusive, learned those techniques, and applied them by excessively disciplining Genny. (CT 6:1324-1331.). The court initially ruled that the evidence was inadmissible as irrelevant third-party culpability evidence and reasoned that evidence tending to prove Veronica’s culpability did not negate appellant’s culpability. (RT 21:1845-1848.) Appellant filed a timely motion for reconsideration.” (CT 6:1409- 1423.) After hearing argument on the motion for reconsideration, thetrial court concludedthat the proffered evidence was capable ofraising a reasonable doubt and, thus, not barred under People v. Hall (1986) 41 Cal.3d 826 [refining standards for admitting third-party culpability evidence]. (RT 28:3096-3097.) The court, however, expressed doubts that the evidence would be admissible under Evidence Codesection 1101. (RT 23 In addition to noting the similarities between the abuse that Tillie meted out to her daughters and what was done to Genny, appellant pointed out the parallels in Tillie’s violent acts toward her husband and Veronica’s abusive behavior toward appellant. (CT 6:1410-1413.) -44. 28:3068.) The court requested the defenseto file an offer ofproof so the court could determine whether the proffered evidence was inadmissible character evidence. (RT 28:3100-3103.) The prosecution filed a supplemental points and authorities contending that the proffered evidence should be excluded as inadmissible propensity evidence. (CT 7:1523-1525.) Appellant filed the offer ofproof that the trial court had requested. (CT 7:1526-1536.) The court held a hearing pursuant to Evidence Code section 402 to determine the admissibility of Dr. Patricia Perez-Arce’s proffered expert testimony that Veronica and appellant would be expected to modeltheir behaviorafter their parents’ behavior, including the disciplinary methods - that their parents used. (RT 47:5517-5582.) After Dr. Perez-Arcetestified at the hearing, the court stated that her opinions regarding the relationship between the excessive discipline in Veronica’s family of origin and Veronica’s acts directed toward Genny appearedto be character evidence excluded by Evidence Code section 1101. (RT 47:5585.) The court barred her from testifying about how Veronica would have been expected to have acted orherlikelihood to be an abuser.2* (RT 47:5600; RT 48:5763.) The court also expressedits belief that the testimony about abuse that Veronica had observed and experienced during her childhood would also be inadmissible under Evidence Codesection 1101. (RT 48:5763.) Priorto ruling formally on the admissibility of the evidence of excessive discipline in Veronica’s family of origin, the court sharedits 4 Thecourt permitted Dr. Perez-Arce to testify generally to child behavioral development and Latino culture. (RT 47:5612.) It also permitted herto testify, pursuant to Evidence Code section 1102, about appellant’s nonviolent character. (RT 48:5762.) -45- tentative view that the proffered evidence wasindistinguishable from the battering-parent-syndrome-profile evidence the Court of Appeal held was inadmissible in People v. Walkey (1986) 177 Cal.App.3d 268. (RT 49:5774-5775.) Defense counsel argued that the proffered evidence did not constitute character evidence, had legitimate non-character purposes, and had to be admitted into evidence in order to protect appellant’s constitutional rights. (RT 49:5775-5799, 5804-5806.) Reasoning that the proffered evidence in this case wasanalytically identical to the profile evidence found inadmissible in Walkey, the court ruled that the evidence was inadmissible under Evidence Codesection 1101, subdivision (a). (RT 49:5808-5809.) Explaining that the proffered evidence suffered from the weaknessesinherent in character evidence, the court also ruled that appellant’s constitutional rights did not compel the admission of the evidence.”> (RT 49:5810-5813.) Believing that the prosecution could not admit the proffered evidence against Veronicaat hertrial, the court stated that it would be unfair to the prosecution for appellant to be exonerated with third-party-culpability evidence that the prosecution could not use when trying the alleged alternative perpetrator. (RT 49:5812.) The court also barred the defense from presenting evidence that Tillie, when applying to become the permanent guardian for Genny and her siblings, failed to disclose that she had abused Mary. (RT 51:6184-6185.) The court likewise excluded evidence of Veronica’s relationship with Tillie. (RT 56:6946-6953.) In addition, the court excluded evidencethat Tillie *° The prosecutor questionedthereliability of the allegations of abuse. (RT 49:5800.) The court stated that assuming that Tillie had abused Veronica would not impactits ruling excluding the evidence. (RT 49:5817.) -46- burned her granddaughter Utilia’s face. (RT 60:7676.) Towardthe close of the prosecution’s guilt phase case-in-chief, appellant renewed his motion to admit the evidence of the techniquesTillie used to abuse her daughters. (RT 56:6941-6943.) Adheringto its conclusion that it was inadmissible character evidence, the court continued to exclude it. (RT 56:6944-6945.) The court later denied a motion to reconsider the exclusion of this evidence. (RT 58:7453-7454.) When the prosecution announcedits intent to call Veronica’s sister Anita as a guilt- phase rebuttal witness, the defense sought to present the proffered evidence to show that Anita felt protective of Veronica and was therefore a biased witness. (RT 60:7677-7680.) The court permitted evidence that Anitafelt protective of Veronica because they wereraised in a troubled home, but barred evidence of specific acts of abuse or defense counsel’s using the word “abuse” when questioning Anita or her husband, Victor Negrette. (RT 60:7684-7685.) Prior to the commencementofthe penalty phase ofthefirsttrial, appellant sought again to admit this evidence. (RT 65:8268-8281.) Defense counsel arguedthat the proffered evidence pertained to mitigating factors (g) (extreme duress or domination) and (j) (minor participation), was not barred by Evidence Code section 1101, subdivision (a), and, assuming arguendothat it was character evidence, was admissible under Evidence Code section 1101, subdivision (b). (RT 65:8269-8271, 8276-8278; see also Pen. Code, § 190.3.) Articulating that the proffered evidence showed Veronica to be the major participant, defense counsel arguedthat barring appellant from presenting this mitigating evidence would violate his constitutional rights. (RT 50:8271 -8281 .) Concluding that the right to present a defense or mitigating evidence did not abrogate Evidence Code -47- section 1101, the trial court excluded the proffered evidence at the penalty phase. (RT 65:8282-8283.) This ruling remainedin effect at the penalty retrial. (RT 75:9383; RT 81:9551.) After the penalty retrial, appellant moved for a newtrial, in part based on the exclusion of this evidence. (CT 12:2702-2706.) The court ruled that it had correctly excluded the evidence and denied the motion for a new trial. (RT 103:12940-12941.) B. Appellant Proffered Relevant, Admissible Evidence The evidence of the disciplinary techniques used in Veronica’s family of origin was relevant and, thus, presumptively admissible. (See Evid. Code, § 351.) Evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequenceto the determinationofthe action” constitutes relevant evidence. (Evid. Code, § 210, quoted in People v. Carter (2005) 36 Cal.4th 1114, 1166.) It was undisputedattrial that the proffered evidence was relevant. The evidence tended to provethat it was Veronica who abused and killed Genny. The evidence would have revealed the striking similarity between the abusive techniquesthat Tillie employed against Veronica, Mary, and Anita and the methods used against Genny. Like her mother and maternal aunts, Genny had been burned, beaten, and confined and had her hair pulled. (See ante, at pp. 43-44.) When supplemented with Dr. Perez- Arce’s testimony that children model their behavior after their parents’ conduct, the proffered evidence would have shownthat Veronica | experienced or observedTillie’s excessive disciplinary techniques, learned how to use those techniques, modeled her behavior after her mother’s, and applied those techniques against Genny. -48- The evidence wasrelevant for reasons far beyond the mere fact that Veronica had been abused. The abusive techniques used by Tillie and perpetrated against Genny were both similar and bizarre. For instance, muchofthe escalating abuse began as a misguided attempt to prevent Genny from picking at her scabs and impeding a burn to her head from healing. Tying Genny’s hands and wrappinga cloth around her head so tightly that it created ligature marks were peculiar responses to Genny’s behavior. Evidence that Tillie would tie her daughters up would have explained the unusual method usedto attempt to prevent Genny from picking at her scabs. The proffered evidence would have created the inference that Veronica resorted to a disciplinary technique that she had learned from her mother andthus perpetrated the abuse against Genny. The evidence was unquestionably material. Attrial, no one disputed defense counsel’s assertion that the proffered evidence was the keystone to appellant’s defense. In view ofthe dearth of evidence ofwho had inflicted Genny’s injuries, the principal issue at the guilt phase was whether appellant, Veronica, or both abused and killed Genny. Evidence suggesting that Veronica had masterminded or committed the offense was critical to that determination. Likewise, the evidence was crucial for assessing appellant’s degree of participation, which formed the fundamental controversy at the penalty retrial. C. The Trial Court Erred When It Ruled That The Evidence Of Excessive Disciplinary Techniques In Veronica Gonzales’s Family Of Origin Constituted Character Evidence Barred By Evidence Code Section 1101 The trial court’s exclusion of the proffered evidence was error. The erroneousruling resulted from the court’s misconception of Evidence Code -49- section 1101. The inferences appellant sought to make from the excluded evidence were not forbidden by the rule barring the use of character evidence to show action conformingto that character. Thus, Evidence Code section 1101, subdivision (a) presented no impedimentto introducing this evidence. Thetrial court’s ruling excluding this defense evidence pursuant to Evidence Codesection 1101 is not entitled to this Court’s deference. Although rulings under Evidence Code section 1101 are reviewed for abuse of discretion (e.g., People v. Cole (2004) 33 Cal.4th 1158, 1195), the trial court lacked the discretion to use an inapplicable section of the Evidence Code to exclude evidence. “Thediscretion ofa trial court is, of course, ‘subject to the limitations of legal principles governing the subject ofits action.’”” (People v. Eubanks (1996) 14 Cal.4th 580, 595, quoting Westside Communityfor Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355; see also, People v. Jackson (1998) 17 Cal.4th 148, 162; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977; In re Carmaleta B. (1978) 21 Cal.3d 482, 496.) Because “all exercises of legal discretion must be groundedin reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue” (Peoplev. Russel (1968) 69 Cal.2d 187, 195), a trial court’s legal error is an abuse of discretion per se. (Koon v. United States (1996) 518 U.S. 81, 99; Cooter & Gell v. Hartmarx Corp. (1990) 496 U.S. 384, 405; In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1105 (dis. opn. of Kennard., J.); Paterno v. State 1999) 74 Cal.App.4th 68, 85.) In this case, the trial court committed legal error by concluding that the proffered evidence constituted character evidence lacking a valid evidentiary purpose and thereby excluding the evidence. -50- Evidence Code section 1101 provides that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) “A person’s character or charactertrait is an emotional, mental, or personality fact constituting a disposition or propensity to engage in a certain type of conduct.” (2 Jefferson Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 1997) Evid. of Character, Habit, & Custom § 33.1, p. 697.) Accordingly, Evidence Code section 1101 forbids a party from inferring that a person acted in a certain way on a specified occasion by showingthat he or she hasa disposition to act in that manner. For instance, the prosecution in a theft case cannot elicit evidence that the defendantis a thief to infer guilt. Appellant did not seek to make any inferences forbidden by Evidence Code section 1101. An analysis of the categories of evidence implicated by Evidence Code section 1101, subdivision (a) illustrates that the proffered evidence was not character evidence and, thus, was admissible. 1. The Proffered Evidence Did Not Violate the Propensity Rule The propensity rule lies at the heart of Evidence Code section 1101, subdivision (a). The propensity rule bars the use of past acts to prove a person’s disposition to act in that manner and further prove that he acted accordingly on a specified occasion. For example, in the previously described theft example, the prosecution cannotelicit evidence of prior thefts for the purpose of showingthat the defendantis a thief and inferring guilt from that propensity. (See People v. Guerrero (1976) 16 Cal.3d 719, -51- 724 [“It is well established that evidence of other crimesis inadmissible to prove the accused hadthe propensity or disposition to commit the crime charged”].) That chain of logic — hestole before, he is a thief, and thus he stole the items in this case — comprises the forbidden inference. (See People v. Garceau (1993) 6 Cal.4th 140, 186 [noting propensity “evidence invites the jury to be swayed by speculation that, because the defendant previously has murdered, he or she also committed the charged murder”]; Orenstein, No Bad Men!: A Feminist Analysis ofCharacter Evidence in RapeTrials (1998) 49 Hastings L.J. 663, 669.) The propensity rule was entirely inapplicable to the proffered evidencein this case. Appellant did not attemptto elicit evidence that Veronica had previously abused children. Consequently, there was no prior-act evidence from which Veronica’s purported propensity to abuse children could be inferred. Indeed, appellant never sought to show that Veronica had a propensity to abuse children. Rather, appellant attempted to introduce evidence of excessive disciplinary techniques in Veronica’s family of origin to show that Veronica experienced or observed such acts, learned how to use those techniques, modeled her behavior after her mother’s, and applied thosetechniques against Genny. Veronica’s purported propensity to abuse children is not part of that logical chain; appellant never sought to make the forbidden inference with this circumstantial evidence of third-party culpability. Only the prosecutor, when arguing that the court should exclude the proffered evidence under ‘Evidence Code section 1101, mentioned or made references to Veronica’s purported propensity to abuse children. Therationales undergirding the propensity rule further demonstrate the inapplicability of the propensity rule to the proffered evidence. The -52- principal purposeofthe rule is to prevent the factfinder from placing inordinate weight on the defendant’s commission ofprior acts when determining the defendant’s guilt. (See Michelson v. United States (1948) 335 U.S. 469, 475-476; People v. Smallwood (1986) 42 Cal.3d 415, 428; 1 Wigmore, Evidence (3d ed. 1940) p. 646.) A secondary purposeis to prevent the factfinder from convicting the defendant becauseheis a bad person or to punish him for his unchargedprior crimes, irrespective of whether he committed the charged offense. (See Old Chiefv. United States (1997) 519 U.S. 172, 181; People v. Falsetta (1999) 21 Cal.4th 903, 916; Wigmore, at p. 646.) Another purposeis to relieve the defendant of the burden of defending against the other acts. (See People v. Falsetta, at p. 415.) For two reasons, none ofthese rationales for the propensity rule support excluding the proffered evidence in this case. First, there is no evidence of misconduct by Veronica. Evidence of Veronica being victimized by and observing Tillie’s abusive actions would notlead a jury to believe that Veronica was a bad person: She did not committhe prior bad acts, and the evidence would have earned her sympathy,notire. Second,the trial court severed Veronica’s trial from appellant’s; because Veronica wasnota party at appellant’s trial, she could not have been prejudiced by any evidence admitted at appellant’s trial. Furthermore, this Court has underminedthe only rationale for the propensity rule this Court has cited that could in part pertain to the proffered evidence: “promot[ing] judicial efficiency by avoiding protracted ‘mini-trials’ to determine the truth or falsity of the prior charge.” (People v. Falsetta, supra, 21 Cal.4th at pp. 415-416.). This Court has concludedthat Evidence Code section 352, which grants discretion to trial courts to exclude evidence that requires an undue consumption oftime, sufficiently -53- promotesjudicial efficiency with respect to propensity evidence admissible pursuant to Evidence Code section 1108. (/d. at p. 416.) Accordingly, interests in judicial efficiency provide no basis for excluding the proffered evidence under Evidence Codesection 1101. Moreover,the trial court did not express any concerns about the length of time it would have taken to elicit the proffered evidence. 2. The Proffered Evidence Did Not Constitute Profile Evidence Recognizing that appellant did not seek to elicit evidence of Veronica’s prior badacts, the trial court considered the proffered evidence to be analytically identical to the battering-parent-profile-syndrome evidence the Court of Appeal held was inadmissible in People v. Walkey, supra, and excluded the evidence on that basis. The court’s conclusion was erroneous, because the evidence that appellant proffered wasnotprofile evidence. “A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime.” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) Profile evidence has multiple components. “Testimony regarding a criminalprofile is . . . an expert’s opinion asto certain characteristics which are common to some or mostofthe individuals who commit particular crimes.” (Commonwealth v. Day (Mass. 1991) 569 N.E.2d 397, 399.) Evidence ofthe profile then gets supplemented with evidence that a specific person fits the profile. (See People v. Walkey, supra, 177 Cal.App.3d at p. 277.) Evidence that a person matchesa profile implies that person’s disposition. Accordingly, evidence that a personfits a criminal profile to show that he acted in accordance with that profile might constitute character evidence inadmissible under Evidence Code section -54- 1101, subdivision (a).7° In this case, the proffered evidence did not constitute profile evidence. The chain oflogic for the proffered evidence did not include any allegations or inferences that Veronica had a disposition to abuse children. Appellant soughtto elicit evidence of abusive methods of discipline in Veronica’s family of origin to prove that Veronica experienced or observed her motherutilize those methods, learned those techniques, and employed them against Genny. Any disposition that Veronica may have had does not form part ofthis logical chain. Acquiring knowledge and applying that knowledge need notentail a disposition to apply that knowledge. A recent case decided by this Court exemplifies how disposition is not part of the inferential chain at issue in this case. In People v. Griffin (2004) 33 Cal.4th 536, 582-583, this Court 6 This Court has not determined whetherprofile evidence, when introduced by the prosecution to prove guilt, is barred by Evidence Code section 1101 (see People v. Smith (2005) 35 Cal.4th 334, 357-358 [suggesting, but not deciding, that Section 1101 does not bar probative profile evidence]; People v. Kelly (1990) 51 Cal.3d 931, 961-962 [assuming error in prosecutor’s cross-examining defense expert whether defendantfit sex-offenderprofile]; People v. Stoll (1989) 49 Cal.3d 1139, 1152-1163 [considering evidence that defendant was not a sexual deviate to constitute character evidence admissible under Evidence Code section 1102]), and the Court of Appeal has provided inconsistent answersto that question (compare People v. Robbie, supra, 92 Cal.App.4th at pp. 1083-1088 [holdingtrial court erred in admitting profile evidence]; Peoplev. Castaneda (1997) 55 Cal.App.4th 1067, 1072 [same]; People v. Martinez (1991) 10 Cal.App.4th 1001, 1004-1008 [same]; People v. Derello (1989) 211 Cal.App.3d 414, 425-426 [same]; People v. Walkey, supra, 177 Cal.App.3d at pp. 276-279 [same] with People v. Barnes (2004) 122 Cal.App.4th 858, 868-873 [upholdingtrial court’s admission ofprofile evidence]; People v. Singh (1995) 37 Cal.App.4th 1343, 1378-1380 [same]; People v. Harvey (1991) 233 Cal.App.3d 1206, 1226-1229 [same]). -55- upheld the admission of evidence that the defendant had workedin a slaughterhouse and observed sheep get slaughtered, as wellas testimony detailing the technique utilized to slaughter sheep. In that case, the prosecutor argued that the victim was slaughtered like an animal. (/d.at p. 582.) There was no argumentthat the defendant wasa slaughterer; it was not a part of the logical chain that the defendant worked in a slaughterhouse, observed animals get slaughtered, learned slaughtering techniques, and applied that knowledge against the victim. Likewise, in this case, disposition played no part of the logical chain defense counsel articulated when proffering the excluded evidence. Veronica did not need to have the disposition of a child abuser to apply against Genny the disciplinary techniques she had learned from her mother. Moreover, people often do not act consistently with their dispositions. (E.g., Alison, et al., The Personality Paradox in Offender Profiling (2002) 8 Psychol. Pub. Pol’y & L. 115, 120-121 [noting low degree of consistency in people’s behavior across different situations].) Accordingly, employing one’s knowledge maybe consistent or may be inconsistent with one’s disposition. Because Veronica may not have been acting consistently with her disposition when she implementedthe excessive disciplinary techniques she had learned from her mother, her disposition was notpart of the logical chain linking the evidence of abuse in Veronica’s family of origin to the abuse inflicted on Genny. In addition to lacking inferences pertaining to Veronica’s dispositions, the proffered evidence differed from profile evidence in two othercritical respects. First, appellant did not seek to elicit evidence of a battering-parentprofile. In People v. Walkey, supra, 177 Cal.App.3d at p. 277, the prosecution elicited expert testimony delineating the components -56- of a battering-parent profile. Second, appellant did not attempt to present evidence that Veronica fit the battering-parent profile. Without evidence listing the factors comprising the profile, the proffered evidencethat Tillie had abused Anita, Mary, and Veronica did not imply that Veronica fit the profile; the jury had no evidentiary basis to conclude that Veronica, because she and hersisters had been physically abused, was a child abuser or was predisposedto abuse children. In contrast, in People v. Walkey, supra, the evidence that the defendant had been abusedas a child matched what the prosecution’s expert had said was the most important factor in the child- batterer profile. For these reasons, appellant’s proffered evidence differed greatly from the profile evidence that the Court of Appeal held was admitted erroneously in Walkey. Therationales supporting a bar on profile evidence also fail to justify the exclusion ofthe proffered evidence in this case. In concluding that the trial court erred in admitting the prosecution’s child-batterer-profile evidence, the Walkey court explained: “Such evidence invites a jury to conclude that because the defendant has been identified by an expert with experience in child abuse cases as a memberofa group having a higher incidence of child .. . abuse, it is more likely the defendant committed the crime.” [Citation.] Thus, the nature and extent of the potential prejudice to a defendant generated by character evidencerendersit inadmissible. (People v. Walkey, supra, 177 Cal.App.3d at p, 278, quoting State v. Maule (Wash.App. 1983) 667 P.2d 96, 99.) In this case, no witness would have testified that Veronica belonged to a group that had an increased incidence of child abuse. As a result, the proffered evidence would not have induced the jury to infer from her disposition a greater likelihood that Veronica committed the crime. Moreover, because Veronica wastried separately -57- from appellant, the proffered evidence couldnot have prejudiced her. The Court of Appeal’s rationale for holding profile evidence in People v. Robbie, supra, inadmissible likewise cannotjustify the trial court’s exclusion of the proffered evidence in this case: [P]rofile evidence is inherently prejudicial because it requires the jury to accept an erroneous starting pointin its consideration of the evidence. We illustrate the problem by examining the syllogism underlying profile evidence: criminals act in a certain way; the defendant acted that way; therefore, the defendantis a criminal. Guilt flows ineluctably from the major premise through the minor oneto the conclusion. The problem is the major premiseis faulty. It implies that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent andillegal behavior, as the People’s expert conceded here. (People v. Robbie, supra, 92 Cal.App.4th at p. 1085.) Unlike the evidence in Robbie, the proffered evidence in this case did notallege that criminals act in a certain way, that Veronica acted in a certain way, or that Veronica was a criminal. Again, it could not have prejudiced Veronica. Even if this Court determines that the proffered evidence constituted profile evidence,the trial court erred by excluding it. This Court has stated that profile evidence should be barred “only ifit is either irrelevant, lacks a foundation, or is more prejudicial than probative.” (People v. Smith (2005) 35 Cal.4th 344, 357.) None of those three basesfor exclusion were met; accordingly, the trial court erred by excluding the evidence merely because the court deemedit to be profile evidence. 3. The Proffered Evidence Was Admissible Even Assuming Arguendo Thatthe Jury Might Have Made an Improper Character Inference As explained above, the proffered evidence provided nobasis for -58- concluding that Veronica had a proclivity to abuse children. The only possible way in which the jury could have concluded from the proffered evidence that Veronica was predisposed to abuse children would beifjurors had and used knowledge gained outside the courtroom that child abuse tends to be intergenerational. This remote possibility fails to support the exclusion of the proffered evidence. Jurors would have committed misconduct if they had injected specialized knowledge obtained from outside sources into the deliberations to make forbidden inferences regarding the proffered evidence. Although jurors’ views of the evidence may be shaped by their educational and professional experiences, jurors may not discuss specialized opinions acquired from outside sources. (See Jn re Malone (1996) 12 Cal.4th 935, 963.) Accordingly, it would have been improperfor jurors during deliberations, based on their specialized knowledge, to say that Veronica had the proclivity to abuse children because she had been a child-abuse victim, or generally that child-abuse victims are more likely than other people to be child abusers. To the extent that some jurors could have silently made an improper character inference without committing misconduct, the court erred by excluding the proffered evidence of excessive disciplinary techniques in Veronica’s family of origin. Evidence that could be character evidenceis _ generally admissible if it has legitimate, noncharacter purposes. (E.g., People v. Hill (1967) 66 Cal.2d 536, 557.) Evidence Code section 1101, subdivision (b) states that section 1101, subdivision (a) does not prohibit the admission of evidence of prior “acts when relevant to prove somefact... other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) Section 1101, subdivision (b)’s list of permissible -59- evidentiary purposes is not exhaustive. (People v. Catlin (2001) 26 Cal.4th 81, 146.) In this case, the evidence of excessive discipline in Veronica’s family of origin had admissible, noncharacter purposes. As explained above, the evidence was offered to show that Veronica experienced and observedthose abusiveacts, learned how to perform those acts, and implemented her knowledge by perpetrating similar abusive acts against Genny. Appellant did not seek to use the evidence to show Veronica’s propensity or disposition to abuse children, and neither propensity nor disposition formeda link in the logical chain that appellant sought to make with the proffered evidence. Recently, in People v. Griffin, supra, 33 Cal.4th at pp. 582-583, this Court held that the logical chain put forth by appellant here was indeed valid. Accordingly, the proffered evidence in this case was admissible for a legitimate purpose, andthetrial court erred in concluding that the proffered evidence lacked a valid purpose. Moreover,as trial counsel had argued, the proffered evidence had permissible purposesthat are delineated in Evidence Code section 1101, subdivision (b). The evidence pertained to Veronica’s disciplinary motive for her acts against Genny. By observing her mother, Veronica learned excessive disciplinary techniques. As Tillie had done to Veronica, and to Anita and Mary in Veronica’s presence, Veronica disciplined Genny excessively and abusively. Also, the proffered evidence wasprobative toward identity. The evidence tended to show that Veronica wasthesole, or alternatively the primary, perpetrator of the acts against Genny. Contrary to the trial court’s conclusion, appellant did not seek to show identity through Veronica’s character. Again, Veronica’s propensity or disposition wasnotpart of the logical chain that accompaniedthe proffered evidence. -60- From the evidence of excessive disciplinary techniques in Veronica’s family of origin, appellant sought to infer that Veronica observed her mother use those techniques, learned them, modeled her behaviorafter her mother’s, applied those disciplinary techniques, and, therefore, Veronica _ perpetrated the abuse against Genny andkilled her. Forthese reasons, assuming arguendothat the proffered evidence was susceptible to improper character inferences, the evidence was nonetheless admissible for a limited purpose under Evidence Codesection 1101, subdivision (b). Moreover, as a matter of policy, Evidence Code section 1101, subsection (a) should not have barred the proffered evidence. As explicated above, the purposes ofthe propensity rule and the possible bar on profile evidence did not support the exclusion ofthird-party-culpability evidence against a separately tried codefendant. The proffered evidence wascritical to appellant’s defense (see post, at pp. 65-68), andthetrial court determined that the evidence was capable of raising a reasonable doubt (RT 28:3096-3097). Under these circumstances, appellant’s third- party-culpability evidence should not have been excluded under Evidence Code section 1101. D. The Trial Court’s Exclusion Of The Evidence Of Abuse In Veronica Gonzales’s Family Of Origin Violated Appellant’s Constitutional Rights Thetrial court’s erroneousexclusion ofthe proffered evidence eradicated the heart of appellant’s defense that Veronica, not he, perpetrated the acts against Genny. This was not mere state-law evidentiary error. The court’s rulings infringed appellant’s constitutional rights to offer testimony and present a complete defense. The continued exclusion of the evidence at the penalty phase further violated appellant’s constitutional rights to present relevant mitigating evidence and rebut aggravating evidence, andto fair -61- and reliable capital-sentencing determination. 1. The Erroneous Exclusion of the Evidence Violated Appellant’s Constitutional Rights to Present Defense Witnesses and to Present a Compete Defense The compulsory process clause of the Sixth Amendmentandarticle I, section 15 of the California Constitution, and the due process clause of the Fourteenth Amendmentandarticle I, sections 7 and 15 of the California Constitution provided appellant with the rights to produce witnesses on his behalf and to present a complete defense. (See Holmes v. South Carolina (2006) _U.S.__, 1268S. Ct. 1727, 1731; Taylorv. Illinois (1988) 484 U.S. 400, 409; Crane v. Kentucky (1986) 476 U.S. 683, 690; California v. Trombetta (1984) 467 U.S. 479, 485; Chambers v. Mississippi (1973) 410 U.S. 284, 294; Washington v. Texas (1967) 388 U.S. 14, 22-23.) “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” (Chambers v. Mississippi, supra, at p. 302.) Furthermore, notions of fundamental fairness inherent in the due process clause require “that criminal defendants be afforded a meaningful opportunity to present a complete defense.” (California v. Trombetta, supra, at p. 485, quoted in Crane, supra, at p. 690.) The exclusion of third- party-culpability evidence is the paradigmatic evidentiary ruling that violates a defendant’s rights to a defense.”” (See Holmes v. South Carolina, *7 Although therights to elicit testimony from defense witnesses and to present a complete defense have separate constitutional sources, courts have analyzed claimsarising under each ofthose rights similarly. (See Holmes v. South Carolina, supra, 126 8. Ct. at p. 1731 [‘‘ Whether rooted directly in the Due Process Clause of the Fourteenth Amendment,or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to -62- supra, 126 §. Ct. at p. 1731-1735; Green v. Georgia (1979) 442 U.S. 95, 97; Chambers v. Mississippi, supra, 410 U.S.at pp. 302-303; Pettijohn v. Hail(Ast Cir. 1979) 599 F.2d 479, 480-483; Miller v. Angliker (2nd Cir. 1988) 848 F.2d 1312, 1323-1324; Governmentof Virgin Islands v. Mills (3rd Cir. 1992) 956 F.2d 443, 448; Thomas v. Hubbard (9th Cir. 2001) 273 F.3d 1164, 1177-1179, overruled on other grounds in Payton v. Woodford (2003) 346 F.3d 1204, 1217, fn. 18; Ex Parte Griffin (Ala. 2000) 790 So.2d 351, 355; State v. Lewis (Conn. 1998) 717 A.2d 1140, 1152; Newman v. United States (D.C. 1997) 705 A.2d 246, 254-258; Blair v. Commonwealth (Ky. 2004) 144 S.W.3d 801, 809-810; State v. Jones (Minn. 2004) 678 N.W.2d 1, 19; State v. Jimenez (N.J. 2003) 815 A.2d 976, 982.) The exclusion of evidence of excessive disciplinary techniquesin Veronica’s family of origin violated appellant’s constitutionalrights to present witnesses and a complete defense. Althougha trial court’s evidentiary rulings do not ordinarily implicate a defendant’s constitutional rights (see People v. Kraft (2000) 23 Cal.4th 978, 1035), the Constitution does not tolerate bars on defense evidenceifthe evidentiary bar infringes a defendant’s weighty interest and _ is arbitrary or disproportionate to the purposes the evidentiary bar was designed to serve. (Holmes v. South Carolina, supra, 126 S. Ct. at p. 1731.) present a complete defense.”””], quoting Crane v. Kentucky, supra, 476 US.at p. 690 and California v. Trombetta, supra, 467 U.S.at p. 485.) Whenproffered defense testimony is excluded from the defense case-in- chief, the rights to present defense witnesses and to present a complete defense are coextensive. In this brief, where appellant refers explicitly only to the violation ofhis rights to present a defense, he alleges violations of both his rights to present defense witnesses and to present a complete defense. -63- United States Supreme Court precedents indicate that exclusions of defense evidence violate a defendant’s rights to present a defense if the evidence is exculpatory andcritical to the defense, so long as the state lacks an overriding interest in maintaining the integrity of the adversarial process by excluding the evidence. To ensure that the exclusion of evidence prejudiced a defendant, the excluded evidence must be favorableto the defense. (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867.) The primary mechanism for differentiating between ordinary state-law evidentiary error and a constitutional violation is the requirementfor a rights-to-a-defense claim that the excluded evidence be crucial to the defense. In mostcases finding violation oftherights to a defense,the United States Supreme Court has emphasized the centrality of the excluded evidenceto the defense. (See Rock v. Arkansas (1987) 483 US. 44, 57; Crane v. Kentucky, supra, 476 U.S. at p. 690; Green v. Georgia (1979) 442 U.S. 95, 97; Davis v. Alaska (1974) 415 U.S. 308, 317-318; Chambersv. Mississippi, supra, 410 USS.at p. 302.) Lastly, recognizing that “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials” (United States v. Scheffer (1998) 523 U.S. 303, 308, quoted in Holmes v. South Carolina, supra, 126 S. Ct. at p. 1731), the United States Supreme Court has concluded the exclusion of crucial exculpatory evidence would not violate a defendant’s constitutional rights if the exclusion advancesstate interests in maintaining the integrity of the adversarial process sufficiently to outweigh the defendant’s interest in presenting crucial exculpatory evidence. (See Taylorv. Illinois, supra, 484 U.S.at pp. 414-415; Rock v. Arkansas, supra, 483 U.S.at p. 56.) Accordingly, a defendant’s Sixth and Fourteenth Amendmentrights are not -64- violated by the exclusion of unreliable scientific evidence (see United States v. Scheffer, supra, at pp. 308-317), or untrustworthy hearsay(see,e.g., People v. Morrison (2004) 34 Cal.4th 698, 724-725; People v. Ayala (2000) 23 Cal.4th 225, 269), or the exclusion of evidenceas a sanction for failure to give timely notice of a witness or evidence (see Michigan v. Lucas (1991) 500 U.S. 145, 149-153; Taylor v. Illinois, supra, at p. 415). Thetrial court’s exclusion of the proffered evidence infringed appellant’s constitutional rights. As demonstrated below, the evidence of excessive disciplinary techniques in Veronica’s family of origin was both favorable and central to appellant’s defense. Atthe guilt phase, appellant’s principal defense was that Veronica wasthe sole perpetrator and that he was guilty only of child endangerment resulting in death, a lesser-related offense. At her guilt phase summation, defense counselasserted that appellant did not participate in the homicide and that appellant’s failure to protect Genny constituted child endangerment, but not murder. (RT 63:8151-8156.) Appellant relied on evidence suggesting that Genny was burned in the bathtub and not given prompt medical attention while appellant was out of the apartment. (RT 52:6242-6245, 6261-6271, 6353; RT 53:6533-6536; RT 57:7085-7088.) To assert that Veronica alone burned Gennyin the bathtub, appellant also used evidence that Veronica, when seeking help, said that she had run Genny’s bath and put Gennyin the bath, and otherwise spokein the first-person singular whentrying to explain what happened to Genny.” (RT 50:5895, 5908-5909, 5965.) Evidence that the devices used to abuse Genny were *8 Atthe penalty retrial, the trial court barred evidence that Veronica at the apartment complex told police officers that she alone drew the bath and placed Genny in the water. (RT 90:11179-11187; see post, Claim III.) -65- used by, belonged to, or were stored in items belonging to Veronica further supported the third-party-culpability defense. (RT 51:6088-6089; RT 52:6325, 6378-6381; RT 53:6513-6514, 6610-6614; RT 55:6832-6833.) In further support of his defense, appellant presented evidence that ~ he treated Anthonylike his other children though appellant was aware that Anthony wasan illegitimate child who was the product of an affair between Veronica and her teenage cousin. (RT 57:7112, 7150, 7268.) That evidence was used to show that appellant would not single out a child for maltreatment and suggest that it was Veronica, not appellant, who singled out Genny for abuse. To buttress the third-party-culpability defense and explain why appellant did not intervene to protect Genny, the defense introduced evidence that Veronica was the dominant and abusive partnerin her relationship with appellant. (RT 57:7105-7107, 7135, 7213-7218, 7243, 7247, 7261-7267.) The defense also elicited evidence that appellant was meek, passive, and peaceful. (RT 56:7050; RT 57:7105-7106, 7240.) The prosecution presented evidence that partly rebutted appellant’s defense. An emergency medical technician testified that rigor mortis had set in Genny before he attempted CPR, which suggested that Genny had been burnedearlier than the defense theorized. (RT 50:5990-5994.) Appellant made statements during his interrogation that he had run the water for a bath and that both he and Veronica had placed Gennyin the bathtub. (CT 8:1761-1762.) Appellant also stated that he had put up the hook in the bedroom closet and sometimes had placed Genny in a wooden box or the bathtub to scare her. (CT 8:1788-1789, 1804-1810.) In view ofthis conflicting evidence admitted at the guilt phase, the excluded evidence would have provided powerful evidence that Veronica masterminded and solely perpetrated the abuse and homicide of Genny. -66- Theproffered evidence would have demonstrated that Veronica and her sisters had been abused in a mannersimilar to how Genny wasabused. Coupled with Dr. Perez-Arce’s testimony that children model their behavior after their parents’ conduct, the proffered evidence would also have shown that Veronica learned the excessive disciplinary techniques from Tillie and suggested that she was the person who used those methodsagainst Genny. The similarities in abusive techniques were especially probative of Veronica’s culpability in this case because ofthe bizarreness of the acts against Genny. (See ante, at p. 49.) Had the evidenceofthe similarity in abusive techniques used by Tillie and employed against Genny been limited to common methods, such as beating, the evidence of abuse that Veronica experienced and observed would have been somewhatprobative. The unusualnature of the excessive disciplinary techniques utilized by Tillie and perpetrated against Genny greatly enhancesthe probity of the evidence of excessive discipline in Veronica’s family oforigin. If the trial court had admitted the excluded evidence, appellant’s third-party-culpability defense would have been far more convincing than it wasin the absence ofthe proffered evidence. The evidence that was admitted in appellant’s defense was circumstantial and partly contradicted by prosecution evidence. Potential assumptions that the only man and only non-blood-relative of Genny in the household would bethe likely perpetrator further undercut appellant’s defense. The proffered evidence washighly probative of Veronica’s guilt and, thus, would have fortified appellant’s third-party-culpability defense. Throughout the proceedings below, defense counsel asserted, without the prosecutor’s disagreement, that the proffered evidence wascritical to the defense. (RT 28:3061-3062; RT 49:5786-5794; RT 56:6943; RT 65:8280; CT 12:2706.) Thetrial court -67- agreed. (RT 28:3103.) Therefore, the excluded evidence was both exculpatory andcritical to appellant’s defense. Although the evidence, which strongly suggested that Veronica mastermindedthe offense, did not foreclose the possibility that appellant was culpable as an accomplice, the proffered evidence need not have definitely proven appellant’s innocencein order to be crucial to his third- party-culpability defense. (See People v. Cash (2002) 28 Cal.4th 703, 727 [“Evidencethat falls short of exonerating a defendant maystill be critical to a defense.”}.) The proffered evidence need only have tended to establish his innocence. (See State v. Blob (Minn. 2004) 682 N.W.2d 578, 621 [stating constitutional right to present witnesses in one’s defense “includes evidence tending to show that an alternate person committed the crime” whenidentity is at issue]; State v. Koedatich (N.J. 1988) 548 A.2d 939, 976 [“‘the Supreme Court recognized that an accused hasa constitutional right underthe due process clause of the fourteenth amendmentto offer probative evidence tending to showthat a third party committed the crime charged”’].) Byindicating that Veronica, rather than appellant, masterminded the offense,the proffered evidence tended to show that Veronica, rather than appellant, was the primary perpetrator and weakened the prosecution’s case that appellant was guilty of homicide as a primary perpetrator or an aider and abettor. Moreover, the proffered evidence tended to prove that appellant lacked the intent to kill Genny, an essential elementofthe torture- murder special circumstance,or the intent to torture her, an element of both murderby torture and the torture-murderspecial circumstance. The evidence suggested that the primary perpetrator had only the intent to discipline, rather than the intentto kill, and that appellant was neither a primary perpetrator nor an accompliceor, at the very least, that appellant -68- was a minorparticipant who hada less culpable mensrea than the primary perpetrator. Thus, the excluded evidence wascritical to appellant’s defense, with respect to the murder charge and the torture-murder special circumstance. Thetrial court’s conclusion that excluding the proffered evidence did not violate appellant’s right to a defense because it lacked sufficient probity was erroneous. First, it is the centrality of evidence to the defense —~ not probity — that factors into determining whether the exclusion of defense evidence would violate a defendant’s constitutional rights. (See Rockv. Arkansas, supra, 483 U.S. at pp. 61-62 [holdingper se exclusion of defendant’s posthypnosis testimony under state evidence law infringed defendant’s constitutional rights to testify despite questions regarding accuracy of testimony].) Second, the court based its determination that the proffered evidence was weak and speculative in a mannerinherent in character evidence on the erroneous premisethat the proffered evidence was probative only as character evidence. The proffered evidence was powerful because the unusual excessive disciplinary techniques that Tillie employed paralleled the methods used to injure Genny. The evidence and the inferences that Veronica observed and experienced Tillie use the techniques, learned them, and applied them, is not weak and speculative. (See People v. Griffin, supra, 33 Cal.4th at pp. 582-583 [finding probative the evidence of defendant’s employment in slaughterhouse to show that defendant observed animals get slaughtered, learned slaughtering techniques, and applied those techniques to slaughter victim like an animal].) | The exclusion ofthe proffered evidence failed to advance legitimate state interests, which are defined as interests in maintaining the integrity of -69- the adversarial process. Appellant did not seek to admit untrustworthy hearsay or unreliable scientific evidence. The proffered evidence did not impedethe fair and efficient administration ofjustice or prejudice the truth- determining function ofthe trial process. (See Taylorv. Illinois, supra, 484 U.S. at pp. 414-415.) Rather, the exclusion of the evidence impeded the integrity of the adversarial process by preventing the jury from considering reliable and potent evidence that was central to appellant’s defense. The prosecution’s purported rightto a fair trial provided no bona fide basis for denying appellant’s constitutional claims regarding the proffered evidence. In rejecting appellant’s argumentthat his constitutional rights to a defense demanded the admission of the proffered evidence, the court expressed a concern with the ramifications of admitting evidence of Tillie’s excessive disciplinary techniques at appellant’s trial and subsequently excluding the same evidence at Veronica’s trial. The court believed that admitting the evidence in appellant’s trial, but not Veronica’s trial, would infringe the prosecution’s interest in a fair trial. The court explained: I don’t believe that constitutional rights to a fair trial would be served by allowing one defendant to escape justice, if indeed he’s guilty, to escape justice on the basis of evidence that someone else committed that crime, whenthat evidenceis simply unavailable to seek justice as to that other person. (RT 49:5812.) Thetrial court’s reasoning is flawed in several respects. The state’s interest should be measured only byits stake in maintaining the evidentiary rule used as a basis for excluding the defense evidence — not by whether the constitutionally compelled admission of the evidence would decrease -70- the likelihood of a conviction. (Rock v. Arkansas (1987) 483 U.S.at p. 56 [“In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify’’].) In addition, this Court has concludedthat when a defendant seeks to introduce third-party-culpability evidence, the admissibility of that evidence in the alleged alternative perpetrator’s trial is immaterial. (See People v. Jones (1998) 17 Cal.4th 279, 305 [“Defendant also asserts in effect that the trial court applied a double standard to the foregoing offers ofproof by permitting the prosecution to admit similar testimony in proceedings against [the codefendantin his separate trial]. But what happened in those proceedings has no bearing on the propriety of the ruling in this case.”].) The purpose of severing appellant’s and Veronica’s trials was to permit the parties at one trial to elicit evidence that would be inadmissible at the other trial. The admissibility of evidence at Veronica’s trial should have no bearing on the admissibility of that evidence at appellant’s trial.”° Likewise, the admissibility of evidence at Veronica’s trial should not impact the analysis of whether the exclusion of the proffered evidence infringed appellant’s constitutional rights to a defense. For these reasons, the supposed inadmissibility of the proffered evidence at Veronica’s separatetrial did not constitute a legitimate state interest that could outweigh appellant’s interest in presenting a defense. ° Assuming arguendothat the trial court correctly concludedthat the admissibility of the evidence at Veronica’s trial was relevant to the determination at appellant’s trial, the court should have expected that Veronica would present the evidence that Tillie abused her andhersisters as mitigating evidence, which the prosecutor would have been able to exploit. Thus, the court’s concerns that the prosecution could not have used the proffered evidence against Veronica were unsound. -71- Becausethe proffered evidence was exculpatory and central to the defense, andthestate lacked a valid countervailing interest in excluding the evidence,thetrial court’s exclusion of evidence of excessive disciplinary techniques in Veronica’s family of origin violated appellant’s constitutional rights to elicit testimony from defense witnesses and present a complete defense. This Court’s pronouncementin People v. Cudjo (1993) 6 Cal.4th 585, 611, that the rights to present a defense can be infringed only by general rules of evidence, and nota trial court’s misapplication of the evidentiary rules, finds no support in United States Supreme Court precedent,the principles of constitutional law, or logic. In Cudjo, this Court rested its conclusion that the trial court’s erroneous exclusion of an alleged alternative perpetrator’s jailhouse confession, which was admissible under the declaration-against-interest exception to the hearsayrule, did not violate the defendant’s constitutional rights to present a defense on the premisethata trial court’s misapplication of the rules of evidence to exclude crucial defense evidence does not implicate those constitutional rights. (Id. at pp. 604-612.) That premise is fundamentally flawed. The United States Supreme Court has neverrestricted the rights to present a defenseto cases in which an evidentiary rule, rather than trial court’s application of the rule, was the source of the exclusion ofcrucial defense evidence. Although in several cases in which the United States SupremeCourt has found infringements ofthe rights to a defense, an _ applicable evidentiary rule facially foreclosed the admission of defense evidence (see Rock v. Arkansas, supra, 483 U.S. at pp. 61-62; Green v. Georgia, supra, 442 U.S.at p. 97; Chambers v. Mississippi, supra, 410 U.S. at pp. 302-303; Washington v. Texas, supra, 388 U.S.at pp. 22-23), the -72- United States Supreme Court has found such constitutional violations where the exclusion of defense evidence was not foreordained by a codified evidentiary rule. (See Holmes v. South Carolina, supra, 126 S. Ct. at pp. 1733-135; Crane v. Kentucky, supra, 476 U.S. at pp. 689-691.) The United States Supreme Court has never hinted,let alone held, that the exclusion of crucial, exculpatory defense evidenceis constitutionally permissible wheneverit is due to thetrial court’s application or misapplication of an evidentiary rule. To the contrary, the United States Supreme Court has concludedthat it is immaterial whethera trial court’s exclusion of defense evidence was consistent with state law, becausethe trial court’s ruling had the effect of a state-law rule precluding the defendant from introducing evidence. (See Skipper v. South Carolina (1986) 476 U.S.1, 7.) | Furthermore, this Court’s distinction between whetherthe rules of evidenceor trial court’s misapplication ofthe rules of evidenceis the source of the exclusion of defense evidence lacks support in the principles of constitutional law. The identity of the state actor infringing somebody’s constitutional rights is not material.*° (See Yick Wo v. Hopkins (1886) 118 US. 356, 373-374 [holding discriminatory application of a law, in addition to law that discriminates on its face, may violate equal protection clause].) The United States Supreme Court has long heldthat a state officer, as well as a Statute, may violate a person’s rights under the due process clause of the Fourteenth Amendment. (See Saunders v. Shaw (1917) 244 U.S. 317, 3° An exception to this precept exists for rights that are limited by their terms to a specific branch of government. For example, the proscription on bills of attainder does not apply to the judiciary. (U.S. Const., art. I, § 9, cl. 3.) The rights to present a defense do notfall within this limited exception. -73- 320; Home Teleph. & Teleg. Co. v. Los Angeles (1913) 227 U. S. 278, 287- 288.) In the context of an equal protection claim, the United States Supreme Court recently reiterated that a person’s constitutional rights are violated regardless of whether the express terms of a statute or improper execution of a law caused the discrimination. (See Village ofWillowbrook v. Olech (2000) 528 U.S. 562, 564.) As stated above, the United States Supreme Court has explained that a state court’s evidentiary ruling, even if idiosyncratic or inconsistent with state law, has the effect of a state-law tule. (See Skipper v. South Carolina, supra, 476 U.S.at p. 7.) It matters little to appellantthat the trial court, rather than the framers ofthe Evidence Code, was responsible for barring powerful exculpatory evidencecentral to his defense. Regardless ofwhether the Legislature or the trial court primarily caused the exclusion of evidence, appellant was hamstrung from presenting his defense. Furthermore, insulating a trial court’s erroneous evidentiary rulings, but not a trial court’s rulings correctly made under the Evidence Code, from constitutional scrutiny makes little sense. A state has a far greater interest in maintainingthe vitality of its evidentiary rules than in immunizing trial court’s erroneousruling from being deemed federal constitutional error. Principles of federalism require that greater deference be given to a law enacted by a state legislature than to a state trial court’s ruling that violates state law. This Court’s rationale in People v. Cudjo, supra, 6 Cal.4th atp. 611, was not premised on a distinction without a difference; it was based on a distinction for which the difference undercut the distinction. Accordingly, this Court should reject its pronouncement in Cudjo and hold thatthetrial court’s rulings excluding the proffered evidence infringed appellant’s Sixth and Fourteenth Amendmentandarticle I, section 7 and 15 rights toelicit -74. testimony from defense witnesses and to present a complete defense. 2. Assuming Arguendo Thatthe Exclusion of the Evidence Was Proper under Evidence Code Section 1101, the Trial Court’s Rulings Nonetheless Violated Appellant’s Constitutional Rights to Present Defense Witnesses and to Present a Compete Defense Even ifthe trial court did not commit state-law error by barring the proffered evidence, appellant’s constitutional rights compelled the admission of the evidence. The constitutional rights to present a defense may supersedestate law. (See Rock v. Arkansas, supra, 483 U.S.at pp. 61- 62; Green v. Georgia, supra, 442 U.S. at p. 97; Davis v. Alaska, supra, 415 USS.at pp. 315-320; Chambers v. Mississippi, supra, 410 U.S.at pp. 302- 303; Washington v. Texas, supra, 388 U.S. at pp. 22-23.) In this case,if Evidence Code section 1101 barred the evidence, the evidentiary provision had to yield to appellant’s constitutional rights to present a defense. Asstated in the previous subsection, a defendant’s rights to a defense are violated if evidence that is exculpatory and centralto the defense is not admitted attrial and the state lacks interests in maintaining the integrity of the adversarial process that outweigh the defendant’s interests in presenting a defense. (See ante, at pp. 64-65.) As also discussed in the previous subsection, the proffered evidence ofTillie’s excessive disciplinary techniques was undoubtedly both favorable and central to the defense. (See ante, at pp. 65-68.) The exclusion of the evidence “significantly undermined fundamental elements of [appellant’s] defense.” (United States v. Scheffer, supra, 528 U.S. at p. 315.) The assumption that the proffered evidence was barred by Evidence Code section 1101 changes the analysis of the countervailing state interests supporting the exclusion of the evidence. Nevertheless, exclusion of the -75- evidence violated appellant’s constitutional rights. Thestate’s interest in maintaining Evidence Code section 1101’s exclusion of the proffered evidence does not suffice to justify the bar on appellant’s efforts to present his defense. “Once a sixth amendmentrightis implicated, the state must offer a sufficiently compelling purposetojustify the practice. Various state evidentiary rules which advancedlegitimate state interests have bowedto the defendant’s rightto let the jury hear relevant evidence.” (Pettijohn v. Hall, supra, 599 F.2d at p. 481; accord, Alicea v. Gagnon (7th Cir. 1982) 675 F.2d 913, 923.) The application of an evidentiary rule to bar crucial, exculpatory defense evidence cannot withstand constitutional scrutiny if the rule is arbitrary or disproportionate to its purposes. (See Holmes v. South Carolina, supra, 126 S. Ct. at p. 1731; United States v. Scheffer, supra, 523 U.S.at p. 308; Rockv. Arkansas, supra, 483 U.S.at p. 56.) Thetrial court arbitrarily used Evidence Code section 1101 to bar the proffered evidence. As explained above, appellant never soughtto use the evidence to prove Veronica’s propensity or disposition to abuse children, and appellant never intendedto infer from it a propensity or disposition that Veronica perpetrated the acts against Genny. (See ante, at pp. 52, 55.) Because appellant did not seek to make anyofthe inferences forbidden by Evidence Codesection 1101, the use of that provision ofthe Evidence Code to exclude appellant’s proffered evidence wasarbitrary. Moreover, excluding the proffered evidence under Evidence Code section 1101 was disproportionate to the purposes the evidentiary provision was designed to serve. As stated above, the exclusion of the evidence did not support the purposesofeither the propensity rule or a bar on profile evidence. (See ante, at pp. 52-54, 57-58.) Appellant did not seek to admit -76- evidence of Veronica’sprior bad acts, from whichthe jury could infer a propensity to commit such acts. Likewise, appellant did not seek to admit evidence ofa battering-parent profile, from which the jury could infer that Veronicafit the profile and thus has the disposition to abuse children in her care. Additionally, Veronica could not have been prejudiced by the proffered evidence at appellant’s trial becausehertrial had been severed from appellant’s. The exclusion of the proffered evidence failed to serve the original purposeof the evidentiary rule under which it was excluded. Evidence Codesection 1101 originated as the propensity rule in England about three hundred years ago. The propensity rule’s purpose wasto protect criminal defendants from prejudicial other-acts evidence. The common-law rule was neverused to prevent defendants from presenting exculpatory evidence. (Larsen, OfPropensity, Prejudice, and Plain Meaning: The Accused’s Use ofExculpatory Specific Acts Evidence and the Need to Amend Rule 404(b) (1993) 87 Nw. U. L.Rev. 651, 666-670 (hereafter Larsen).) Therefore, the exclusion of appellant’s proffered third-party- culpability evidence that did not implicate Veronica’s purported propensity or disposition to abuse children under Evidence Codesection 1101 did not advancethe evidentiary provision’s current or historical purposes. The application of Evidence Code section 1101 to bar evidence of Tillie’s excessive disciplinary techniques was indeed “disproportionate to the purposes[the evidentiary rule was] designed to serve.” (Rock v. Arkansas, supra, 483 U.S. at p. 56, quoted in Scheffer v. United States, supra, 523 US.at p. 308.) Furthermore, applying Evidence Code section 1101 to exclude the proffered evidence was peculiar and barring third-party-culpability evidence -77- underthat section has been subject to scholarly criticism. (See Peoplev. Lucas (1995) 12 Cal.4th 415, 464-465 [holding exclusion of defense hearsay evidence did notviolate rights to present defense because defendant neither showed hearsay statements were trustworthy nor pointedto rule of evidence that was peculiar, archaic, or subject to scholarly criticism].) Excluding the proffered evidence as character evidence, though the prior acts were not committed by Veronica and appellant did not attemptto elicit evidence of a profile, was unprecedented. As well, scholars havecriticized the exclusion of third-party-culpability evidence underrules barring the use of character evidence. (See McCord, “But Perry Mason Made It Look So Easy!”: The Admissibility ofEvidence Offered by a Criminal Defendantto Suggest that Someone Else Is Guilty (1996) 63 Tenn.L.Rev. 917, 985-986; Larsen, supra, 87 Nw. U. L.Rev. 651.) Professor Larsen articulated why character-evidence rules should apply differently when evidencerelates to an alleged alternative perpetrator, as opposed to a defendant: [The] concerns ofprejudice [underlying the propensity rule] are not present when the accused seeksto introduce exculpatory specific acts evidence. The accused does not bear the burden ofproving his innocenceattrial and, therefore, uses evidence ofa third party’s prior misconduct merely to raise a reasonable doubtas to his culpability for the charged crime. [Footnote] Becausethis third party is not ontrial, there is no basis for Wigmore’s fear that the jury will convict an innocent person due to “the overstrong tendency to believe the accused guilty of the charge merely because heis a likely person to do such acts” [footnote] or to “condemn not because the accusedis believed guilty of the present charge but because he has escaped unpunished from other offenses.” [Footnote] (Id. at pp. 659-660.) Accordingly, the peculiarity of applying Evidence Code section 1101 to the proffered evidence and the scholarly criticism of -78- using character-evidencerulesto bar third-party-culpability evidence further demonstrate that appellant’s rights to a defense override Evidence Code section 1101’s bar on appellant’s proffered evidence. 3. The Exclusion of the Proffered Evidence at the Penalty Phase Infringed Appellant’s Rights to Present Relevant Mitigating Evidence, to Rebut Aggravating Evidence, and to Have a Fair and Reliable Capital- Sentencing Hearing Thetrial court’s exclusion of the proffered evidence contravened appellant’s Eighth and Fourteenth Amendmentrights, plus his rights under article I, sections 7, 15, and 17 of the California Constitution, to present mitigating evidence, to rebut aggravating evidence, and to havea fair, accurate, and reliable capital-sentencing determination. The continued exclusion at the penalty phase of the proffered evidence further violated appellant’s Sixth and Fourteenth Amendmentrights, as well as his rights underarticle IJ, sections 7 and 15 of the California Constitution, to present a defense. In the penalty phase of a capital case, a defendant has the constitutional right, pursuant to the Eighth and Fourteenth Amendments and article I, section 17, to present relevant mitigating evidence. (Skipperv. South Carolina, supra, 476 U.S.at p. 7; see also, Eddings v. Oklahoma (1982) 455 U.S. 104, 112-115 [holding sentencer’s failure to consider defendant’s violent family history as mitigating evidence violated defendant’s Eighth Amendmentrights]; Green v. Georgia, supra, 442 U.S. at p. 97 [holding penalty-phase exclusion understate-law hearsay rule of codefendant’s admission violated defendant’s due process rights]; Lockett v. Ohio (1978) 438 U.S. 586, 614-616 [holding statutory limitations on mitigation violated defendant’s Eighth and Fourteenth Amendmentrights].) -79- “(When any barrier, whether statutory, instructional, evidentiary, or otherwise [citation], precludes a jury or any of its members [citation] from considering relevant mitigating evidence, there occurs federal constitutional 399error, which is commonly referred to as ‘Skipper error.’” (People v. Mickey (1991) 54 Cal.3d 612, 693.) The exclusion of the proffered evidence, which wasboth relevant and mitigating, at the penalty phase constituted a per se violation of appellant’s right to present mitigating evidence. (See Tennardv. Dretke (2004) 542 U.S. 274 , 284-285 [explaining evidence tending to prove fact or circumstance factfinder could reasonably find mitigating is relevant mitigating evidence that factfinder must be able to consider].) In People v. Brown (2003) 31 Cal.4th 5 18, 577-578, this Court applied a rule that the exclusion of relevant mitigating evidence wasper se Skipper error. Asdiscussed throughoutthis claim of error, evidence of excessive disciplinary techniques used in Veronica’s family oforigin suggested that it was Veronica whoprimarily perpetrated similar acts upon Genny. The proffered evidence thus was probative toward factor (a) (circumstances of the offense) and factor (j) (minorparticipant) (see Pen. Code, § 190.3, factors (a), (j)), and the trial court’s exclusion of the relevant mitigating evidence was a per se Skippererror. . Evenifthis Court does not use a per se standard for Skippererror, the trial court nonetheless violated appellant’s right to present mitigating evidence. Viewed most narrowly, the right to present mitigating evidenceis coextensive to the rights to present a defense. (See People v. Ramos (2004) 34 Cal.4th 494, 528 [seemingly equating right to present mitigating evidenceto rights to present a defense].) Underthat stringent standard,it is apparentthat the exclusion of the proffered evidence violated appellant’ s -80- constitutional rights to present mitigating evidence. The profferedevidence wascentral to appellant’s case in mitigation, and the state lacked a sufficient interest to justify excluding the evidence. The primary thrust of appellant’s mitigation case focused on the degree of appellant’s participation in the acts committed against Genny. Appellant arguedthat his participation, if any, was minor. As explained above, evidence of excessive discipline in Veronica’s family of origin suggested that Veronica was the mastermind of and major participant in the offense. (See ante, at pp. 48-49.) At the guilt phase, evidence that Veronica wasthe primary perpetrator was probative of appellant’s innocence, butit did not conclusively prove that appellant was neither the primary perpetrator nor an accomplice. In contrast, at the penalty phase, evidence that Veronica was the lead participant was, in and ofitself, a mitigating factor. (See Pen. Code, § 190.3, factor (j).) The excluded evidence wasthe linchpin to appellant’s penalty-phase defense that he was, at most, a minorparticipant. The state did not have a sufficient countervailing interest in excluding the proffered evidence, irrespective of whether Evidence Code section 1101 barred the evidence. Thestate’s interest in maintaining the evidentiary rule was weakerat the penalty phase than at the guilt phase, because the state is required to conduct capital-sentencing proceedings with heightenedreliability. (See Lockett v. Ohio, supra, 438 U.S.at p. 604.) Accordingly, the state’s interest in maintaining the rule of evidenceis counterbalanced by the state’s interest in holding a reliable penalty phase. Becausethe state’s interest in maintaining the evidentiary rule was insufficient to outweigh appellant’s interest in presenting crucial exculpatory evidenceat the guilt phase (see ante, at pp. 69-70.), it follows a fortiori that the state’s interest was insufficient at the penalty phase. Thus, -81- under the standard used for rights-to-present-a-defense claims,thetrial court violated appellant’s constitutional rights to present relevant mitigating evidence. By definition, the trial court also violated appellant’s constitutional rights to present a defense at the penalty phase. Thetrial court’s refusal to admit the evidence of excessive discipline in Veronica’s family of origin also violated appellant’s Eighth and Fourteenth Amendmentandarticle I, section 17 rights to rebut aggravating evidence. (See Gardner v. Florida (1977) 430 U.S. 349, 362 [holding defendant’s due process rights were violated by sentencer’s consideration ofprosecution evidence that defendant did not have opportunity to deny or explain].) Because appellant had no history of violentacts or crimes, circumstancesofthe offense comprised the lone aggravating factor against appellant. The prosecution presented extensive evidence of the abusive acts perpetrated on Genny. With respect to appellant’s deathworthiness, the aggravating nature of the prosecution evidence would have been blunted by the proffered evidence, which would have suggested that Veronica was the mastermind and primary perpetrator of the acts against Genny, including the immersion burn that caused Genny’s death. Thetrial court’s ruling that the evidenceofTillie’s excessive disciplinary techniques was inadmissible denied appellant an opportunity to explain the aggravating evidence andviolated his constitutional right to rebut aggravating evidence.;! Furthermore, the exclusion of the proffered evidence infringed 3! As with appellant’s right-to-present-relevant-mitigating-evidence claim, appellant’s right to rebut aggravating evidence wasinfringed regardless ofwhether a per se standard is used to evaluate this claim. The analysis of the former claim coincides with the analysis of this claim. -82- appellant’s Eighth and Fourteenth Amendmentandarticle I, section 17 rights to a fair, accurate, and reliable capital-sentencing determination. The United States Supreme Court has declared that “capital sentencing must be reliable, accurate, and nonarbitrary” and explained that, because death is qualitatively different from other punishment, a capital-sentencing determination requires a heightened degree ofreliability. (Saffle v. Parks (1990) 494 U.S. 484, 493; see also, Lankford v. Idaho (1991) 500 U.S. 110, 125, fn. 21; Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329; California v. Ramos (1983) 463 U.S. 992, 998-999; Lockett v. Ohio, supra, 438 U.S. at p. 604; Woodson v. North Carolina (1976) 428 U.S. 280, 305 (lead opn. of Stewart, Powell, and Stevens, JJ.).) The proffered evidence was crucialto the defense’s case in mitigation; appellant’s contention that he was, at most, a minor participant in the crimes against Gennyrelied heavily on the excluded evidence. Thetrial court’s exclusion of the evidence prevented the jury from basing its capital-sentencing determination on the full complementof salient facts. A death verdict issued at a trial in whichcritical defense evidence pertaining to the minor- participation mitigating factor and the circumstances-of-the-offense factor was excluded could not be fair, accurate, or reliable. (See Pen. Code, § 190.3, factors (a), (j).) E. The Exclusion Of The Proffered Evidence Was Extraordinarily Prejudicial And Requires That Appellant Be Given A New Trial Thetrial court, by refusing to admit the evidence ofTillie’s excessive disciplinary techniques, infringed the Evidence Code and violated appellant’s constitutional rights. These errors were highly prejudicialatall phases of appellant’s trial; consequently, the murder conviction, the torture- murder special circumstance, and the death sentence cannotstand. -83- 1. The Murder Conviction Must Be Vacated The evidentiary and constitutional errors impacted the first degree murder conviction. Under the standard for state-law evidentiary error or federal constitutional error, the exclusion of the evidence prejudiced appellant. Reversal is the remedy for state-law error excluding evidenceif “it is reasonably probable that a result more favorable to the appealing party would have been reachedin the absence ofthe error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) That standard is metin this case. If the trial court had admitted the proffered evidence,it is reasonably probable that appellant would not have been convicted offirst degree murder. The excluded evidence wascritical to the defense that Veronica solely perpetrated the offense. (See ante, at pp. 65-68.) The evidence strongly suggested that Veronica used against Genny the excessive disciplinary techniques that Veronica had learned from her mother. Evidence that Veronica was the mastermind implied that appellant did not participate at all in the offense and wasthus not guilty of murder. Hadthetrial court admitted the excluded evidence, the jury would likely have found that appellant was neither a primary perpetrator nor an aider and abettor. The similarities between the abuse Veronica observed and experienced and the abuse foisted upon Genny indicated that Veronica conceived of and performedthe acts perpetrated against Genny. Given the bizarreness of the excessive disciplinary techniques used against Genny,it is improbable that the jury would have concluded that appellant conceived ofthe methods used to abuse Genny. Because the jury presumably would have concluded that Veronica devised the methods of abuse, the jury also wouldlikely have inferred that Veronica, rather than appellant, personally -84- perpetrated the abuse. The conclusion that Veronica masterminded and committed the abusiveacts also casts significant doubt on appellant’s culpability as an aider and abettor. Because the abusive acts toward Genny appear to have been Veronica’s handiwork,the jury could have concluded that Veronica wasthe sole perpetrator. Alternatively, the jury could have concluded that appellant engaged in an occasionalact that facilitated Veronica’s actions, but that appellant lacked the intent to torture, lacked the knowledge ofVeronica’s intent to torture, or lacked the intent to commit or assist Veronica’s commission of the crime. For instance, the jury could have concludedthat appellant installed the hook in the closet, yet determinedthat he wasnot an aider and abettor because he merely intended to scare Genny. Evidence that appellant perpetrated, as a primary perpetrator or an aider and abetter, the offense was thin. (See ante, at pp. 65-66.) At his guilt-phase closing argument and rebuttal, the prosecutor argued that appellant’s admissions and Ivan Jr.’s statements and testimony demonstrated appellant’s culpability. (RT 63:8056-8065, 8097-8103, 8163- 8164, 8168.) Those arguments, however, required that several inferences be made. Appellant’s statements that he would, as a disciplinary tactic, try to scare Gennydid not constitute admissions that he had abused Gennyor intended for Veronica to abuse her. Appellant’s remarks that he and Veronica put Gennyin a bathtub with appropriately warm water that he had drawn for the bath were not admissionsthathe had scalded Genny in 140- degree water. Moreover, significant evidence undercut the prosecutor’s arguments. Veronicasaid to police officers at the apartment complex that she alone drew the bath and placed Gennyin the water. (RT 50:5894-5895, 5955, 5965.) Alicia Montes, the neighbor wholived upstairs, heard water -85- running in the bathroom after appellant had left the apartment; this testimony supported appellant’s defense theory that Veronica alone burned Genny. (RT 57:7087-7088.) At the preliminary hearing, Ivan Jr., in response to open-ended questioning from Veronica’s counsel,testified that he wassure that he did not see appellant put Genny in the bathtub on the night that she died. (PX 2:293.) The excluded evidence would have further undermined the prosecutor’s argument. Though circumstantial, the excluded evidence would have reducedthe likelihood that the jury would have madethe adverse inferences against appellant and adopted the prosecutor’s theory ofthe case. Based on the evidence that was admittedat trial, the jury had difficulty determining whether appellant was guilty of murder. The guilt- phase deliberations lasted for seven days. (CT 13:2997-3009.) The duration of deliberations was remarkable, considering that appellant was charged with only one offense. Based on jurors’ statements to the court and declarations, the jury did not discuss whether appellant intended to kill Genny. (See post, Claim VI.) Whether appellant was culpable for the murder comprised the lone remaining significant contested issue for the jury to resolve during its deliberations. The length of deliberations showsthat this was a close case.*” (See Parker v. Gladden 1966) 385 U.S. 363, 365 32 Witkin and Epstein have explained the significance of a close case in the determination of whetheran error is prejudical: Therule is occasionally declared that, in a “close case,”i.e., one in which the evidenceis “evenly balanced”or “sharply conflicting,” a lesser showing oferror will justify reversal than where the evidence strongly preponderates against the defendant. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § -86- [“the jurors deliberated for 26 hours, indicating a difference among them”]; In re Sakarias (2005) 35 Cal.4th 140, 167 [concluding ten-hour deliberations showedcloseness of case]; People v. Cardenas 1982) 31 Cal.3d 897, 907 [twelve hours]; People v. Woodard (1979) 23 Cal.3d 329, 341 [six hours]; Gibson v. Clanon (9th Cir. 1980) 633 F.2d 851, 855, fn. 8 [nine hours]; Dallago v. United States (D.C. Cir. 1969) 427 F.2d 546, 559[five days]; United States v. Brodwin (S.D.N.Y. 2003) 292 F.Supp.2d 484, 497 [“the jury foundthis a close case, as reflected by their five and a half days of deliberations before returning their verdict”].) Given that it took seven days ofdeliberations for the jury to conclude, based on the evidencethe trial court admitted, that appellant was guilty of murder, the admission of the excluded evidence, which wascritical to appellant’s defense, likely would have tipped the scale toward acquittal of the charged offense. Hence,it is reasonably probable that appellant would have been acquitted of first degree murder if the court had not erroneously excluded the evidence. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1089-1090 [finding prejudice under Watson standard for erroneousrestriction of defense testimony]; People v. Watson, supra, 46 Cal.2d at p. 836.) The conviction must be vacated. Assuming arguendothat the Watson standardis not met, reversalis nonetheless required. Becausethe evidentiary error violated appellant’s constitutional rights to a defense, respondent has the burden of showing beyond a reasonable doubt that the error was harmless. (See Chapmanv. California (1967) 386 U.S. 18, 24.) Respondent cannot meetthat burden. 45, pp. 506-507.) -87- As explained above, evidence that appellant was personally culpable for murder was far from overwhelming.*® (See Harrington v. California (1969) 395 U.S. 250, 254 [finding constitutional error harmless in part because of overwhelming admissible evidence of guilt].) In addition, the error had an effect on the verdict. (See Chapman, 386 U.S.at p. 24.) The excluded evidence wascrucial to appellant’s third-party-culpability defense. Even if this Court rules that it is not reasonably probable that the excluded evidence would have tipped the scale in appellant’s favor, it cannot conclude that the exclusion ofpowerful evidencethatcut to the heart of appellant’s defense could not have tipped the scale toward acquittal, especially in view ofthe lengthy deliberations regarding whether appellant was guilty of murder rather than child endangerment. The conviction for first degree murder must be vacated. 2. The Torture-MurderSpecial Circumstance Must Be Vacated Even if appellant’s murder conviction is upheld, the torture-murder special circumstance should be reversed. Unlike the murder-by-torture theory of first degree murder, specific intent to kill is an element ofthe torture-murder special circumstance. (See People v. Cole (2004) 33 Cal.4th 1158, 1226.) In the trial court’s opinion,intent to kill was the weakest link ofthe prosecution’s case. (RT 20:1747; RT 56:6903, 6912.) The proffered evidence, if admitted, would have negated the intent- 33 When conducting the overwhelming-evidencetest, this Court should not evaluate the strength of the prosecution evidence independently from the defense evidence. (See Holmes v. South Carolina, supra, 126 S. Ct. at p. 1735 [“by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt”].) -88- to-kill element. There was no direct evidence that appellant intendedto kill Genny; the prosecution could showintent to kill only by inferring it from appellant’s conduct. The excluded evidence suggested that Veronica was the mastermind andthe primary, if not sole, perpetrator of the acts against Genny. The exclusion of the evidence inflated the jury’s perception of appellant’s participation in the offense. The finding of intent to kill was founded on that inaccurate impression of appellant’s participation.* If the trial court had admitted the excluded evidence,it is reasonably probable that the jury would have concluded that the prosecution had not metits burden to prove, beyond a reasonable doubt, that appellant intendedto kill Genny.*° (Cf. People v. Ross (1979) 92 Cal.App.3d 391, 404 [affirming murder-by- torture conviction, but reversing torture-murder finding dueto insufficient evidence ofpersonal participation and intentto kill].) Accordingly,it is reasonably probablethat, absent the evidentiary error, the jury would not have found the torture-murder special circumstance. (See Peoplev. Watson, supra, 46 Cal.2d at p. 836.) The torture-murder special circumstance must be vacated. Assuming arguendothat the state-law evidentiary error does not mandate reversal of the special circumstance, the violation of appellant’s constitutionalrights to a defense requires a new special circumstancetrial. Evidence that appellant had the intent to kill was questionable. (See Harrington v. California, supra, 395 U.S. at p. 254.) Thetrial court repeatedly remarked on the weaknesses of the prosecution’s case of ** For the purposes of this argument, appellant assumes arguendo that the jury found intent to kill. (But see post, Claim VI.) 35 As with the murder conviction, the exclusion of the evidence was prejudicial with respect to the intent-to-torture element. -89- appellant’s alleged intent to kill. (RT 20:1747; RT 56:6903, 6912.) If admitted, evidence that Veronica likely mastermindedandprincipally perpetrated the offense would have shownthat appellant was, at most, an aider and abetter to the offense who may not have intendedto torture and kill Genny even if Veronica had intended totorture and kill her. Accordingly, the error had an effect on the verdict. (See Chapmanv. California, supra, 386 U.S. at p. 24.) Thus, under either the overwhelming- evidencetest or the effect-on-the-verdicttest, the exclusion of the proffered evidence cannot be deemed harmless, and this Court must vacate the torture-murder special circumstance. 3. The Death Sentence Must Be Vacated Evenifthis Court affirms the conviction and torture-murderspecial circumstance, it should vacate the death sentence. The evidence ofthe excessive disciplinary techniques Tillie used against her daughters, juxtaposed against evidence that similar methods were employedagainst Genny, wasthe linchpin of appellant’s penalty-phase defense that he was, at most, a minorparticipant in the offense. The continued exclusion of the proffered evidence at the penalty phase undermined appellant’s ability to establish the minor-participation mitigating factor, or present mitigating circumstancesofthe offense. This error cannot be considered harmless under state-law or federal-constitutionalstandards. Asa result, appellant must be granted a new penalty trial. If the trial court had not erroneously excludedthe evidence,there is, at a minimum, a reasonable possibility that the jury would not have returned a death verdict. For state-law errors impacting the penalty phase of a capital case, this Court has refined the Watson test: A penalty phaseerroris reversible if there exists a reasonable possibility the defendant would not -90- have been sentenced to death if the trial court had not erred. (Peoplev. Brown (1988) 46 Cal.3d 432, 448.) That standard is met in this case. Appellant’s minorparticipation constituted his primary defense at the penalty retrial. Among other things, appellant elicited evidence that he had stormed out of the apartment before Genny wasseverely burnedin the bath, and the items used toinflict abuse belonged to Veronica. This evidence, however, paled in comparison to the excluded evidence, which would have shownthat Veronica observed and experienced her mother use unusual disciplinary techniques, learned those techniques, and then employed them against Genny. It was substantially more probative of Veronica being the mastermind and primary perpetrator than the evidence admitted at trial. Accordingly, the admission ofthe excluded evidence would havegreatly strengthened appellant’s mitigation case that he wasat most a minorparticipantin the offense. The exclusion of the proffered evidence was moreprejudicial at the penalty retrial than at the guilt phase. At the guilt phase, the evidence strongly suggesting that appellant was a minorparticipant did not conclusively prove that appellant was notan aider and abettorto the homicideor lacked an intent to torture or kill; a further inference was necessary for appellant to have a favorable outcome on the guilt or special- circumstance determination. At the penalty retrial, however, appellant being a minorparticipant wasitself a mitigating factor. (See Pen. Code, § 190.3, factor (j).) The exclusion of evidence pertaining to the minor- | participation mitigating factor necessarily impacted the jury’s weighing process. Moreover, Veronica masterminding and primarily perpetrating the offense were mitigating circumstances of the offense that would have affected the weighing process. -9]- Evidence of a capital defendant’s minor culpability is particularly persuasive evidence in a jury’s determination of deathworthiness. (Sundby, The Capital Jury and Absolution: The Intersection ofTrial Strategy, Remorse, and the Death Penalty (1998) 83 Cornell L.Rev. 1557, 1577-1583 [reporting California study finding jurors’ concern aboutthe extent ofthe defendant’s involvement, rather than their doubts as to whether he was involvedat all, was mostlikely to persuade jurors to return life-without- parole verdict].) The United States Supreme Court has recognized the importanceofrelative culpability with respect to the capital-sentencing decision. (See Enmundy. Florida (1982) 458 U.S. 782, 798-801.) In addition, this Court recently concluded that the inaccurate overstatement of a capital defendant’s relative culpability constituted prejudicial penalty phaseerror. (See In re Sakarias, supra, 35 Cal.4th at pp. 165-167.) Because the excluded evidencein this case would havestrongly suggested that appellant was, at most, a minor participant in the commission ofthe offense, the jury likely would have accordedsignificant weight to the proffered evidenceifthe trial court had found it admissible. The proffered evidence would also have blunted the aggravating evidence. Although the victimization of Genny was an aggravating circumstance ofthe offense, the extent to which it aggravated appellant’s deathworthiness was proportional to the degree of appellant’s participation. The jury foundedits determination of appellant’s deathworthiness on an inaccurately inflated perception of appellant’s participation. If the trial court had admitted the proffered evidence, the jury likely would have given less aggravating weight to the prosecution evidence. If the trial court had admitted the excluded evidence,it is, at the very least, reasonably possible that appellant would not have been -92.- sentenced to death. The proffered evidence would have weakenedthe strength of the aggravating evidence and added great force to the minor- participation mitigating factor. The jury would have considered the powerful minor-participant evidence along with his other mitigating evidence: Appellant had never before committed a crime orviolent act;** Veronica was the dominantpartner in the relationship; appellant was an affectionate, helpful, polite, and respectful child who played the guitar and nevercreated trouble; appellant was the second person in his family to graduate from high school; he received an electronics certificate and workedbefore and for the first few years after marrying Veronica; and appellant’s family, including his six children, loved him and would be devastated by his execution. (RT 52:6253; RT 57:7102-7104; RT 67:8546, 8612; RT 68:8665, 8671-8672, 8675, 8698, 8724, 8739; RT 70:8930-8931; RT 95:11997; RT 98:12561-12563.) Based on the evidence,it is not far- fetched that appellant would not have been sentenced to death ifthetrial court had not erroneously excluded the proffered evidence. Even with thetrial court’s exclusion of the evidence, this was undoubtedlya close case at the penalty phase. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 45, pp. 506-507 [noting threshold for reversal is lowered in close cases].) At thefirsttrial, the jury was hopelessly deadlocked after seven days of deliberations. (CT 13:3022-3037.) The aggravating evidenceat the penalty retrial was virtually identical to the aggravating evidence presented at thefirsttrial. © At the guilt phaseofthefirst trial, Veronica’s brother-in-law Victor Negrette testified that Veronica told him that on one occasion appellant had hit her during an argument. (RT 60:7718.) The prosecution did not present his testimonyat the penalty retrial. -93- Thus, the hung jury makesclear that a death sentence in this case was not preordained. Moreover, the capital-sentencing determination was a subjective moral judgment for which the jury had discretion. (See Peoplev. Brown, supra, 46 Cal.3d at pp. 447-448.) The admission of the evidence could have altered the outcome. Therefore, there is a reasonable possibility that appellant would not have been sentencedto death if the trial court did not erroneously find the proffered evidence inadmissible. Appellant’s death sentence must be vacated due to the erroneous continued exclusion of the proffered evidence under Evidence Code section 1101. For the reasons explicated above, the violation of appellant’s constitutional rights stemming from the exclusion of the evidence also requires reversal of the death sentence. Reversal must follow federal constitutional error at the penalty phase ofa capital case, unless thestate demonstrates beyond a reasonable doubtthat the error did not contribute to the death verdict. (Satterwhite v. Texas (1988) 486 U.S. 249, 258-259.) In this case, respondent cannot meet that burden.*” It is far more difficult to show harmlessness under Chapmanv. California, supra, at the penalty phase than at the guilt phase. When a jury makesa guilt determination, it must mechanistically determine whether the prosecution has proven every element of a crime. The jury’s penalty phase determination is quite different; the jury has discretion to make a subjective moral judgment. [T]he nature of the penalty phase necessarily endowsajury 37 Evenifthis Court finds the error harmless under People v. Brown, supra, this Court should reverse appellant’s death sentence becausethe state cannot prove harmlessness beyond a reasonable doubt. -94- with greater discretion than does the guilt phase. Guilt phase jurors are expected to make findings of fact and apply the law to the facts without injecting their personal feelings or sense ofjustice. [Footnote.] Penalty phase jurors, by contrast, are expected to bring their own values into play. ... Since the jury cannotbe instructed regarding the proper expression of these values, the death penalty decision necessarily involves subjective and discretionary elements not present when a jury decides the question of guilt. (Kessler, Death and Harmlessness: Application ofthe Harmless Error Rule by the Bird andLucas Courts in Death Penalty Cases - A Comparison & Critique (1991) 26 U.S.F. L.Rev. 41, 52-53 (hereafter Kessler); accord, | Scoville, Deadly Mistakes: Harmless Error in Capital Sentencing (1987) 54 U. Chi. L.Rev. 740, 755 (hereafter Scoville) [“[T]he statutory definitions of aggravating circumstancesactas only a partial constraint on the decision of the sentencer in a capital case: the sentencer may find some aggravating circumstancesandyetstill choose not to impose a death sentence. In noncapital cases or in the guilt phase of a capital case, on the other hand, the tribunal’s choice is constrained as soonasit finds that the statutorily defined elementsof a crime are present.”].) Harmless-error analysis at the penalty phase musttake this distinction into account. (See Satterwhitev. Texas, supra, 486 U.S.at p. 258 [“the evaluation of the consequencesofan error in the sentencing phase of a capital case may be moredifficult because of the discretion that is given to the sentencer”]; State v. Kleypas (Kan. 2001) 40 P.3d 139, 271-273 [recognizing how harmless-error analysis differs at penalty phase]; Carter, Harmless Error in the Penalty Phase ofa Capital Case: A Doctrine Misunderstood and Misapplied (1993) 28 Ga. L.Rev. 125, 150 (hereafter Carter) [“The individual choices jurors make about the existence of mitigating circumstances coupled with the unique -95- weighing offactors creates a proceeding fundamentally different from a guilt trial. [{] An analysis of harmlesserror in the penalty phase should be refined to take into account the unique characteristics of the decision”].) The nature of the discretionary, moral judgmentinherent in a capital-sentencing determination substantially raises the burden onthestate to show that an evidentiary error that violates a defendant’s constitutional rights is harmless. [G]iven the highly subjective nature of a death penalty decision, it can never be clear what might have turned the verdict in the opposite direction had the jury heard — or not heard — [the evidence]. It might be something that, in retrospect, seems inconsequential in light of the “more important’ things that were presented at the penalty phase. (McCord, Is Death “Different”for Purposes ofHarmless Error Analysis? Should it Be?: An Assessment of United States and Louisiana Supreme Court Case Law (1999) 59 La. L.Rev. 1105, 1144 (hereafter Js Death “Different”for Purposes ofHarmless Error Analysis); see also, Carter, supra, 28 Ga. L.Rev.at p. 153 [“Unlike the assessment whethera piece of evidence has affected a decision that an element of a crime exists, where one can be more confidentofthe likely use of the evidence, the use of evidence in the penalty phase is unpredictable”].) “Furthermore, where mitigating evidence has been erroneously withheld, the reviewing court cannot determine what the outcome would havebeenif the sentencer had heard this evidence. The sentencer had discretion to impose mercyif it so chose.” (Scoville, supra, 54 U. Chi. L.Rev. at p. 755.) For these reasons, the exclusion of relevant mitigating evidence should rarely be held harmless. (See Js Death “Different”for Purposes ofHarmless Error Analysis?, supra, 59 La. L.Rev.at p. 1144.) -96- Using an overwhelming-evidencetest to conduct harmless-error analysis of a penalty phaseerror is not appropriate, despite this Court’s practice of finding penalty phase errors harmless due to the presence of overwhelming aggravating evidence. The overwhelming-evidencetestis unduly deferential.** Even overwhelming evidence in support of a verdict does not necessarily dispel the risk that an error may have played a substantial part in the deliberation of the jury and thus contributed to the actual verdict reached, for the jury may have reachedits verdict because of the error without | considering other reasons untainted by error that would have supported the sameresult. (Traynor, The Riddle ofHarmless Error (1970) p. 22.) It is particularly ill- suited for penalty phaseerrors. [S]ince capital punishmentis reserved for those who have committed only the most heinous crimes,if error is held harmless wheneverthe aggravating evidence is overwhelming, penalty phaseerror will rarely be prejudicial. In addition, the “overwhelming evidence”test is particularly inappropriate in death penalty cases since the evidence presented and evaluated is of a moral rather than a factual nature. 38 Indeed, this Court has found a remarkably high percentage of penalty phase errors to be harmless. (See Kamin, Harmless Error and the Rights/Remedies Split (2002) 88 Va.L.Rev. 1, 70-72 [reporting Lucas Court found 85% ofpenalty phase errors harmless].) Aside from errors for which reversal is automatic, this Court has rarely found a penalty-phase error prejudicial in recent years. Furthermore, in finding penalty-phase errors harmless, this Court focuses on the aggravating evidence andpayslittle heed to the quality and quantity of the mitigating evidence presented. The United States Supreme Court hascriticized the one-sided process of evaluating the strength of prosecution evidence without considering the defense evidence. (See Holmes v. South Carolina, supra, 126 S. Ct.at p. 1735.) -97- (Kessler, supra, 26 U.S.F. L.Rev.at p. 88.) Accordingly, the application of the overwhelming-evidencetest to penalty-phase errors improperly transforms harmlessness analysis into something akin to a sufficiency-of- the-evidencetest. (Cf. Kyles v. Whitley (1995) 514 U.S. 419, 434-435 & fn. 8 [contrasting sufficiency test from materiality prong ofBrady claim].) These factors presumably explain why the United States Supreme Court used the contribute-to-the-verdict test articulated in Chapmanv. California, supra, 386 U.S.at p. 24, in upholding the use of harmless-error analysis for penalty-phaseerrors, and has not endorsed the application of the overwhelming-evidencetest used in Harrington v. California (1969) 395 U.S. 250, 254 for penalty-phase errors? (See Sochorv. Florida (1992) 504 U.S. 527, 540; Satterwhite v. Texas, supra, 486 U.S.at p. 258.) In this case, because respondent cannot show beyond a reasonable doubt that the exclusion of evidencethat cut to the heart of appellant’s primary penalty-phase defense did not contribute to the death verdict, the 3° Application of the overwhelming-evidencetest in this case would nevertheless result in reversal. Despite the nature of the acts inflicted on Genny, evidence that appellant was a majorparticipant in the offense was hotly contested. In addition to evidence that he was at most a minor participant, appellant’s mitigation case included evidence that he had no prior criminal record, no acts of violence, and that his six children and the rest of his family loved him and would be devastated by his execution. (See ante, at pp. 38-40, 85-86.) Accordingly, the aggravating evidence did not outweigh the mitigating evidence so heavily that the error must have been harmless. -98- constitutional errors could not have been harmless. (See Satterwhite v. Texas, supra, 486 U.S. at p. 258.) The judgment of death must be vacated.” “° For the reasons described throughoutthis claim oferror, thetrial court further erred and violated appellant’s constitutional rights by denying appellant’s new-trial motion, which asserted that appellant should receive a newtrial due to the exclusion of the evidence. -99- I THE EXCLUSION OF EVIDENCE OF VERONICA GONZALES’S ANTIPATHY FOR MARY ROJAS VIOLATED THE EVIDENCE CODE AND APPELLANT’S CONSTITUTIONAL RIGHTS Evidence of Veronica Gonzales’s motive for abusing Genny was kept from the jury. Thetrial court excluded evidence of Veronica’s hostility and resentment toward her sister Mary Rojas, who was Genny’s mother. Veronica’s feelings toward Mary constituted evidence of Veronica’s motive for her maltreatment of Genny. The court, however, concludedthat the evidence wasirrelevant. The court’s ruling was an evidentiary errorthat also infringed appellant’s constitutional rights to present a defense, present mitigating evidence, rebut aggravating evidence, and have a fair andreliable capital-sentencing determination. A. Facts And Procedural History At 6:35 a.m. on July 22, 1995, mere hours after Genny’s death, the police began interrogating Veronica. (CT 2:373-483.) Early in the interrogation, Detective Larry Davis sought background information. He asked Veronica wherehersister Mary wasliving. (CT 2:382.) After Veronica answered that Mary wasresiding in a drug-rehabilitation home, Detective Davis asked, “[WJhy is she there?” Veronica responded, “Cause she’s little bitch.” (CT 2:383.) Later in the interrogation, Veronica said that Genny never screamed. (CT 2:451.) In response to Detective Davis challenging that assertion, Veronica said, “She does not talk. Her damn mother. I’m not saying (unintelligible) no I’m not saying. I’m saying her damn mothergets her so goddamn freaked out (unintelligible).” (CT 2:454.) Appellantsought to admit these statements that show Veronica’s -100- enmity toward Mary. Priorto trial, he filed an in limine motion requesting the statements’ admission. (CT 6:1316-1319.) The court recognized that Veronica’s animosity toward Mary could be inferred from Veronica’s remarks andthat the statements did not constitute hearsay. (RT 21:1853.) The court, however, expressed skepticism that Veronica’s feelings toward Mary had any bearing on whether appellant committed culpable acts and ruled that the statements were irrelevant and inadmissible. (RT 21:1854, 1860.) The court subsequently explained that appellant’s theory that Veronica’s antipathy toward Mary motivated Veronica to harm Genny was too speculative to be relevant. (RT 28:3091.) At a hearing held pursuant to Evidence Code section 402, Dr. Patricia Perez-Arce, a neuropsychologist at the University of California at San Francisco whohad publishedarticles on the impact of Latino culture on mental health and family relationships, testified that Genny had several symbolic meanings for Veronica. (RT 47:5518-5519, 5544.) She explained that Veronica and Mary had a rancorousrelationship and that Veronica resented Mary because Veronica had to care for Genny. Dr. Perez-Arce added that Veronica believed that appellant and Mary had engaged in extramarital relations and accused appellant of being Genny’s father.*' (RT 47:5543.) At the conclusionofthe hearing,the trial court barred Dr. Perez- Arce from testifying about Veronica. (RT 47:5600-5601; RT 48:5763.) Prior to the commencementofthefirst trial’s penalty phase, the court again ruled that Veronica’s statements about Mary were inadmissible. The court reasoned that it would be too large a leap to conclude that *! During his interrogation, appellant alluded to Veronica’s mistaken belief that there had been an affair between appellant and Mary. (CT 8:1840.) -101- Veronica’s animus toward Mary provided a motiveto torture and kill Genny. (RT 65:8291; CT 13:3010-3011.) This ruling remained in effectat the penalty retrial. (RT 75:9383; RT 81:9551.) The exclusion of Veronica’s statements wasoneofthe issues appellant raised in his new-trial motion filed after the penalty retrial. (CT 12:2704-2706.) Concluding that it had not erred in excluding the evidence, the court denied the motion. (RT 103:12940-12941.) B. The Proffered Evidence Was Relevant And Erroneously Excluded Thetrial court erred by excluding as irrelevant evidence of Veronica’s enmity toward Mary, who was Veronica’s sister and Genny’s - mother.” Although irrelevant evidence is undoubtedly inadmissible (Evid. Code, § 350), the excluded evidence was both relevant and admissible. Veronica’s venomous remarks about Mary and Dr. Perez-Arce’s expert testimony explaining their significance were relevant to show Veronica’s motive for her maltreatment of Genny. “Relevant evidence includes evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination ofthe action.’” (People v. Cash (2002) 28 Cal.4th 703, 729, quoting Evid. Code, § 210.) Evidenceis relevant if it “tends ‘logically, naturally, and by reasonable inference’ to establish material facts.” (People v. Garceau (1993) 6 Cal.4th 140, 177, quoting People v. Daniels (1991) 52 Cal.3d 815, 856 and quoted in People v. Benavides (2005) 35 Cal.4th 69, 90.) Veronica’s ill will * Thetrial court’s relevancy determinations are reviewed for an abuseofdiscretion; nevertheless, the exclusion of relevant evidence on irrelevancy groundsnecessarily constitutes an abuse ofdiscretion. (See ante, at pp. 136-137.) -102- toward Mary tended to prove that she, rather than appellant, was the lone or primary perpetrator. Twolinks in the chain of logical relevancy for the proffered evidence were indisputably present. The court quickly concluded that Veronica’s statements were probative of her animus toward Mary. (RT 21:1853.) After the court recognized that evidence of Veronica’s guilt constituted exculpatory evidence for appellant (RT 28:3096-3097), there was no doubt that evidence ofVeronica’s motive tended to exculpate appellant. (See, e.g., People v. Heard (2003) 31 Cal.4th 946, 973 [stating evidencetending to prove perpetrator’s motive is relevant].) The court, however, concludedthat the inference that Veronica’s animosity toward Mary created a motive to harm Genny was speculative and rendered the evidence irrelevant. That waserror. Veronica’s rancor toward Mary tended to prove that she had a motive to mistreat Genny. Before Genny cameto live in Chula Vista, appellant and Veronica had their handsfull taking care of six children, none older than eight years old, in a small two-bedroom apartment. (RT 52:6391-6398.) In addition, they lived in poverty. (RT 52:6356; RT 57:7192-7193.) The crowded,stressful living situation worsened when Genny movedinto the apartment. Genny wasa troubled child who was difficult to handle and incontinent. (RT 60:7736-7738; RT 95:12078, 12091; CT 8:1760, 1787-1788, 1883-1884.) Because she had to care for Genny, Veronica resented Mary. (RT 47:5543.) Moreover, Dr. Perez- Arce’s testimony explained that Veronica’s resentment toward Mary in part resulted in Genny having symbolic meanings for Veronica. (RT 47:5544.) Based on these facts, it would have been logical and reasonable for a factfinder to infer that Veronica’s anger and resentment toward Mary -103- manifested themselves in Veronica’s violent acts toward Genny. Accordingly, the proffered evidence did not logically require a speculative inference; rather, all inferences comprising the logical chain of relevancy were reasonable. This evidence was material to the circumstances-of-the- offense and the minor-participation sentencing factors. (See Pen. Code, § 190.3, factors (a), (j).) Thus, the proffered evidence was relevant and erroneously excluded under Evidence Codesection 350. The proffered evidence was not otherwise inadmissible. Because Veronica’s statements were not offered to prove the truth of the matter asserted, they were not hearsay. Further, the statements were admissible under Evidence Code section 352. Third-party culpability evidence that is capable ofraising a reasonable doubt of a defendant’s guilt cannot be excluded underthat evidentiary provision. (People v. Cudjo (1994) 6 _ Cal.4th 585, 609; People v. Hall (1986) 41 Cal.3d 826, 831-834.) The inquiry ofwhether proffered third-party culpability evidence canraise a reasonable doubt must considerall ofthe available evidence; the proffered evidence should not be evaluated in isolation. (See Cudjo, 6 Cal.4th at pp. 609-610 [considering third-party culpability evidence in conjunction with other evidence to determine admissibility of third-party culpability evidence].) In addition to having the motive to abuse Genny, evidence of Veronica’s opportunity could not have been stronger: Gennylived with Veronica, and there was no evidence that Veronica had left her apartment on the day Genny died. Further, Veronica made several comments suggesting that she alone perpetrated the acts that caused Genny’s death.” ‘3 At the penalty retrial, the trial court barred evidence of Veronica’s inculpatory statements. (RT 90:11179-11187; see post, Claim III.) -104- (RT 50:5895; RT 5908-5909, 5965.) Appellant presented additional evidencethat inculpated Veronica. (See ante, at pp. 65-66.) Moreover, the trial court erroneously excludeda cluster ofcritical exculpatory evidence. (See ante, Claim I.) When considered with other third-party-culpability evidence, the evidence of Veronica’s animosity toward Mary was capable of raising a reasonable doubt; thus, Evidence Code section 352 could not have barred its admission. (Compare People v. Edelbacher (1989) 47 Cal.3d 983, 1017-1018 [holding evidenceofalleged alternative perpetrator’s possible motive was inadmissible because no otherthird- party-culpability evidence was presented].) C. The Exclusion Of The Proffered Evidence _Infringed Appellant’s Constitutional Rights Beyondbeing evidentiary error, the trial court’s exclusion of Veronica’s statements about Mary violated appellant’s constitutional rights to present a defense, to present relevant mitigating evidence, to rebut aggravating evidence, and to havea fair andreliable capital-sentencing proceeding, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, and 17 of the California Constitution. | Barring the proffered evidenceat the guilt phase infringed appellant’s rights to present witnesses in his defense and to present a complete defense. As detailed in Claim I, the exclusion of defense evidence infringes the rights to present a defense if the evidenceis exculpatory andcritical to the defense, unless the state has a countervailing interest in maintaining the integrity of the adversarial process that warrants excluding the evidence. (See ante, at pp. 64-65.) Because the proffered evidence was exculpatory and crucial and the state lacked an overriding -105- interest in excludingit, the trial court’s ruling violated appellant’s rights to present a defense. | Evidence ofVeronica’s motive was exculpatory. At the guilt phase, appellant presented a third-party culpability defense. Evidence that Veronica, the alleged alternative perpetrator, had a motive to harm Genny supported the defense. As explained in the previous subsection, Veronica’s motive can be reasonably inferred from her statements regarding Mary. | The motive evidence wascentral to appellant’s defense. Appellant’s guilt-phase defense was that Veronica, not appellant, had perpetrated the offense. Evidence that Veronica had a motive to hurt Genny formed a crucial componentofthat defense. Juxtaposed against the absence of evidence that appellant had a motive to mistreat Genny, the proffered evidence washighly probative. Because the identity of the perpetrator could not be discerned from the physical evidence (RT 53:6526), evidence of Veronica’s motive was especially consequential. (See People v. Garceau, supra, 6 Cal.4th at p. 177 [explaining “the presence of a motive was particularly significant” in case where no physical evidence implicated defendant].) Furthermore, the motive evidence was critical to overcome the assumption that appellant, as the only man and only person notrelated to Genny by blood wholived in the apartment, had perpetrated the offense. Thestate did not have a countervailing interest in maintaining the integrity of the adversarial process that could have justified excluding the critical exculpatory evidence. The minute excerpts from Veronica’s first interrogation would not have caused undue delay or confusion of the issues. Further, the large quantum of evidence of Veronica’s guilt, as well as the significant evidence of appellant’s innocence, would have ensured that the -106- jury would not haveirrationally acquitted appellant due to a minuscule doubt in appellant’s guilt. The proffered evidence wasnot a red herring designed to mislead the jury. Rather, it was a principal componentof a mass of evidence suggesting that Veronica wasthe sole perpetrator of the offense.“ | | Similarly, the court ruling that Veronica’s statements were inadmissible at the penalty phase further violated appellant’s constitutional rights to present a defense. The excluded evidence was mitigating and central to appellant’s primary penalty-phase defense that Veronica’s culpability transcended his. At the penalty phase, the state continued to have no adversarial-process interest in barring the evidence. Likewise, excluding the evidence infringed appellant’s right to present relevant mitigating evidence. Evidence tending to prove a fact or circumstance that a factfinder could reasonably find mitigating is relevant mitigating evidence. (Tennard v. Dretke (2004) 542 U.S. 274, 284-285.) Asexplained above, the evidence was relevant. (See ante, at pp. 102-104.) Thus, the evidentiary bar constituted per se Skipper error. (See Skipperv. South Carolina (1986) 476 U.S. 1, 7; People v. Brown (2003) 31 Cal.4th 518, 577-578.) If this Court does not apply a per se standard to Skippererror, this Court must nonetheless find a constitutional violation. The moststringent standard for showing Skipper error is co-extensive with the rights-to-a-defense standard. Because the court’s rulings violated appellant’s rights to a defense, the court necessarily infringed the right to ““ Contrary to this Court’s statement in People v. Cudjo, supra, 6 Cal.4th at p. 611, a trial court’s misapplication of an evidentiary rule can violate a defendant’s constitutional rights to a defense. (See ante, at pp. 72- 75.) -107- present relevant mitigating evidence. | Furthermore, the bar on evidence of Veronica’s motive infringed appellant’s constitutional rights to rebut aggravating evidence. (See Gardnerv. Florida (1977) 430 U.S. 349, 362 [holding that sentencer’s consideration ofprosecution evidence that defendant did not have opportunity to deny or explain violated defendant’s due processrights].) As explained in Claim I, evidence in support of appellant’s relative-culpability defense would have blunted the aggravating evidence presented against appellant. (See ante, at p. 82.) Becauseall ofthe aggravating evidence concernedtheacts inflicted upon Genny, evidence that only Veronica had a motive to harm Genny would have suggested that she wasthe sole or | primary perpetrator and thus diminished the powerofthe aggravation against appellant. Lastly, the exclusion of Veronica’s statements violated appellant’s constitutional rights to a fair, accurate, and reliable capital-sentencing determination. (See Saffle v. Parks (1990) 494 U.S. 484, 493.) Appellant’s key penalty-phase defense centered around the minor-participation mitigating factor. (See Pen. Code, § 190.3, factor (j).) Evidence of Veronica’s motive to harm Genny formedoneofthe pillars of this penalty- phase defense. In view of the absence of evidence that appellant had a motive to mistreat Genny, the excluded evidence wasparticularly significant. The exclusion of the evidence gave the jury an inflated, inaccurate sense of appellant’s relative culpability and thus precludeda fair, accurate, and reliable capital-sentencing decision. D. The Exclusion Of The Proffered Evidence Was Prejudicial Thetrial court’s ruling that Veronica’s statements revealing her -108- hostility toward Mary were inadmissible constituted evidentiary and constitutional error. Because these errors were prejudicial, this Court should vacate the conviction, special circumstance, and death judgment. The murder conviction cannot be upheld. It is reasonably probable that appellant wouldnot have been convicted absent the erroneous exclusion of Veronica’s statements under Evidence Code section 350. (See People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence wascritical to | appellant’s third-party-culpability defense. (See ante, at pp. 65-68.) The statements would have revealed that Veronica had a motive to harm Genny. Whencontrasted from the absence of a motive for appellant, the excluded evidence wasespecially probative. In addition, the proffered evidence suggested that Veronica, but not appellant, intended to torture Genny. The exclusion of the evidence permitted the jury to conclude inaccurately that appellant had the requisite intent to torture and, thus, that he was guilty of murder by torture. Further, evidence of appellant’s personal culpability was meager and hotly contested, and the jury’s seven-day guilt-phase deliberations reveal this to have been a close case. (See ante, at pp. 85-87.) The admission of Veronica’s remarks about Mary would have tipped the scales toward acquittal. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1089-1090 [finding prejudice under Watson standard for exclusion of defense evidence].) Forthese reasons, the violation of appellant’s constitutional rights to present a defense cannot be deemed harmless. Respondent cannot show that the exclusion of evidence suggesting that Veronica had a motive to harm Genny would have had noeffect on the verdict. (See Chapmanv. California (1967) 386 U.S. 18, 24.) Moreover, the evidence of appellant’s culpability was not remotely overwhelming. (See Harrington v. California -109- | (1969) 395 U.S. 250, 254.) The conviction must be vacated. If appellant’s conviction is affirmed, the torture-murder special circumstance should nevertheless be vacated. As discussed above, the excluded evidence suggested that appellant, unlike Veronica, lacked the intent to torture. Also, the excluded third-party culpability evidence related to the intent-to-kill element of the special circumstance. (See ante, at pp. 88-89.) Asthetrial court recognized, evidence of intent to kill was the weakestfacet ofthe prosecution’s case. (RT 20:1747; RT 56:6903, 6912.) Veronica’s statements were probative toward showingthat she had a motive to hurt Genny and was,at the very least, the primary perpetrator. Even if Veronica’s intent to kill could be inferred from her conduct, it is reasonably probable that the jury would not have found that appellant intended to kill if the evidentiary error had not improperly inflated the perception of appellant’s participation.*° (See People v. Watson, supra, 46 Cal.2d atp. 836; cf. People v. Ross (1979) 92 Cal.App.3d 391, 404 [upholding murder- by-torture conviction, but reversing torture-murderfinding because of insufficient evidence of personalparticipation andintentto kill].) The constitutional violations of appellant’s rights to a defense further require vacating the special circumstance. For the reasonsdiscussed above, the exclusion of Veronica’s statements that revealed her motive impacted the special-circumstance verdict. (See Chapman v. California, supra, 386 U.S.at p. 24.) Given the weakness of evidence of appellant’s intent to torture and, especially, intent to kill (RT 20:1747; RT 56:6903, 6912), the error cannot be deemed harmless under the overwhelming- * For the purposesofthis argument, appellant assumes arguendo that the jury found intent to kill. (But see ante, Claim VI.) -110- evidence test. (See Harrington v. California, supra, 395 U.S. at p. 254.) Even if this Court affirms the conviction and special circumstance, it should vacate the death judgment. If the trial court had not erroneously excluded Veronica’s statements articulating her animosity toward Mary, it is reasonably possible that the jury would not have sentenced appellant to death. (See People v. Brown (1988) 46 Cal.3d 432, 448.) Veronica’s statements that suggested she had a motive to harm Genny werehighly probative toward appellant’s minor participation, which constituted the linchpin of appellant’s penalty-phase defense. Evidence that Veronica had a motive to hurt Genny suggested that Veronica wasthe primary,if not the only, perpetrator and that she had masterminded the offense. Thus, the evidence would have buttressed appellant’s mitigation case and would have rebutted the aggravating evidence. The exclusion of appellant’s third-party- culpability evidence was more prejudicial at the penalty phase than the guilt phase, especially because minor-culpability evidenceis particularly powerful penalty-phase evidence. (See ante, at p. 92.) Moreover, a review ofthe penalty-phase evidence, as well as the original jury’s deadlock at the penalty phase, reveals this to be a close case. (See ante, at pp. 93-94.) Therefore, the admission of Veronica’s statements may well have shifted this case from equipoiseto life verdict. The federal constitutional errors related to the exclusion of Veronica’s statements further require reversing the death sentence. Due to the importance of the evidence at mitigation and rebuttal to aggravation and the subjective nature of the capital-sentencing determination, respondent cannot demonstrate beyond a reasonable doubt that the error did not -111- contribute to the verdict.*° (See Satterwhite v. Texas (1988) 486 U.S. 249, 258-259.) The overwhelming-evidencetest is an inappropriate harmlessness analysis for penalty phase errors. (See ante, at pp. 96-98.) In any event, the closeness of this case demonstrates that the aggravating evidence, when balancedagainst the mitigating evidence, was hardly overwhelming. Accordingly, the violations of appellant’s constitutional rights to present a defense and relevant mitigating evidence, rebut ageravating evidence, and havea fair, accurate, and reliable capital- sentencing determination were not harmless. “6 Dueto the discretionary nature of the capital-sentencing determination, respondent has a high burden of showingthat a penalty phaseerror is harmless. (See ante, at pp. 94-96.) -112- Il THE EXCLUSION AT THE PENALTY RETRIAL OF VERONICA GONZALES’S ADMISSIONS MADE AT THE CRIME SCENE IN THE MOMENTS FOLLOWING THE POLICE’S ARRIVAL WAS EVIDENTIARY ERROR THAT INFRINGED APPELLANT’S CONSTITUTIONAL RIGHTS Thetrial court barred appellant from presenting mitigating evidence at the penalty retrial that Veronica Gonzales told two police officers that she had put Genny Rojas in the bathtub. The court’s ruling that the statements were inadmissible hearsay was erroneous. The exclusion of the evidence undercut appellant’s relative-culpability defense and thus infringed appellant’s constitutional rights to present mitigating evidence, havea fair trial and a fair, accurate, and reliable capital-sentencing proceeding, and rebut aggravating evidence. A. Facts And Procedural History Minutes after Veronica screamed for help after pulling Genny from the bathtub, Sergeant Barry Bennett and Officer William Moearrived at appellant and Veronica’s apartment complex. (RT 50:5889; RT 51:6191, 6205.) After the officers quickly determined that Genny could not be revived, Veronica told Sergeant Bennett that she had put Genny in the bathtub and ran the water. (RT 50:5894-5895.) Veronica also said that she wentto the kitchen to cook dinner and, upon returning to the bathroom twenty minuteslater, found Genny submerged underthe water. (RT 50:5895.) Shortly afterward, she made similar statements to Officer Phillip Collum, who wasthe third police officer to arrive at the apartment complex. (RT 50:5955, 5965.) Throughout this time, Veronica wasvisibly upset, crying, and rambling. (RT 50:5960, 5966, 5969-5971, 5975; RT 52:6274; RT 56:7026, 7047.) -113- Atthe first trial, Veronica’s statements were admitted in the prosecution’s guilt phasecase-in-chief. (RT 27:2940-2942; RT 50:5895, 5965.) At the penalty retrial, the prosecution movedin limine to barthe statements. (RT 88:10993-10994; RT 90:11164-11187.) Thetrial court concludedthat appellant sought to use Veronica’s statements for a hearsay purpose. (RT 90:11179.) The court ruled that the spontaneous-statement exception did not apply because, based on Veronica’s story, she was excited about finding Genny submergedin the bathtub, not by placing Gennyin the bathtub. (RT 90:11180.) The court stated that the rationale for the exception wasalso inapplicable because Veronica had the opportunity to and did fabricate her statements. (RT 90:11180-11181.) In addition, the court ruled that the statement-against-interest hearsay exception was inapplicable because Veronica’s statements denied responsibility and,thus, werenot against her interest. (RT 90:11186-11187.) The trial court also ruled that the statements were not admissible through the catch-all exception to the hearsay rule. (RT 90:11181.) Accordingly, the court barred appellant from presenting evidence of Veronica’s statements. Furthermore,the trial court concluded that appellant’s constitutional rights did not compel admission of Veronica’s statements. (RT 90:11185.) B. Although Veronica’s Admissions Were Hearsay, They Were Admissible as Spontaneous Statements And Declarations Against Interest Or Under The Catch-All Hearsay Exception Veronica’s admissions to Sergeant Bennett and Officer Collum were admissible under three hearsay exceptions. The trial court abused its discretion by ruling that no exception was implicated and excluding the evidence. (See People v. Roldan (2005) 35 Cal.4th 646, 714 [stating standard of review for spontaneous-statement exception]; Peoplev. -114- Brown (2003) 31 Cal.4th 518, 536 [stating standard of review for declaration-against-interest exception].) Veronica’s admissions constituted spontaneous statements. “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [{] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [{] (b) Was made spontaneously while the declarant was underthe stress of excitement caused by such perception.” (Evid. Code, § 1240.) Veronica told the police officers that she ran the bath and put Genny in the water. Thus, her statements purported to narrate acts that she both saw and committed. The forensic evidence presentedat trial showed that Genny washeld in scalding-hot water for one to ten seconds anddied thereafter from the burns she had sustained. After Genny died, Veronica screamed for help and wasvisibly upset while neighbors and police officers went to assist Genny. These facts demonstrate that Veronica was underthe stress of the excitement created by lethally burning Genny in the bathtub when she madethe statements. Accordingly, Veronica’s admissions met the requirementsfor the spontaneous-statement exception to the hearsay rule. This Court has explained that the declarant’s mental state constitutes the crucial element for determining whether the spontaneous- statement exception is implicated. (People v. Roybal (1998) 19 Cal.4th 481, 516, quoting People v. Farmer (1989) 47 Cal.3d 888, 903-904.) In this case, the record is replete with evidence that Veronica was agitated from the moment she screamed for help through when she spoke to Sergeant Bennett and Officer Collum at the apartment complex. Several witnesses said that she was rambling, crying, and demonstrably upset. Burning Gennyin the bathtub created Veronica’s nervous excitement that -115- was “supposedstill to dominate” at the time she madethe statements to police officers. (Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468, quoted in People v. Poggi (1988) 45 Cal.3d 306, 318.) Further, her admission that she drew the bath and placed Gennyin the bathtub related to the event that created Veronica’s nervous excitement. (See People v. Poggi, supra, 45 Cal.3dat p. 318.) For these reasons, Veronica’s admissions were admissible under the spontaneous-statement exception to the hearsay rule. Because Veronica remained underthe stress of excitement, the likelihood that over an hour had elapsed between the incident and the utterances was immaterial. (See People v. Brown (2003) 31 Cal.4th 518, 540-541 [holding statements made two and one-half hours after startling occurrence were admissible under spontaneous-statement exception].) Likewise, Veronica’s admissions were spontaneousstatements despite her involvementin the crime. (See People v. Sully (1991) 53 Cal.3d 1195, 1229 [holding co-perpetrator’s statements about crime were admissible under spontaneous-statement exception].) Moreover, her statements were spontaneous although she made them to police officers. (See People v. Morrison (2004) 34 Cal.4th 698, 719 [holding statements to police officer may be spontaneous, evenif in responseto officer’s brief inquiry].) Thetrial court considered improper factors to determine that Veronica’s admissions did not implicate the spontaneous-statement exception. It was irrelevant that Veronica’s story suggested thatshe got excited from finding Genny submerged under water in the bathtub,rather than from drawing the bath and placing Genny in the tub. The key factors for whether a statement is admissible under the spontaneous-statement exception are the declarant’s mentalstate at the time of the statement and -116- the antecedent for that mental state. The undisputed evidence supported appellant’s position that the “occurrencestartling enough to produce [Veronica’s] nervous excitement” was the placement of Genny into a bathtub containing water hot enoughto fatally scald Genny in mere seconds. (Showalter v. Western Pacific R.R. Co., supra, 16 Cal.2dat p. 468.) Besides, it was not contested that Veronica remained underthe stress of excitement when she madethe admissions. For these reasons, the admissions met the requirements of the hearsay exception. Veronica’s suggestion that the startling event was herfinding that Genny had drowned in the bathtub wasnot material to the proper analysis of the exception’s applicability. Moreover, asthe trial court recognized, no evidence supported Veronica’s contention. (RT 90:11180-11181.) Accordingly, no substantial evidence supportedthetrial court’s ruling. (People v. Brown, supra, 31 Cal.4th 518, 541 [reviewingtrial court’s findings for substantial evidence].) Thetrial court conducted an inappropriate analysis of extrinsic evidence to conclude that Veronica’s statements as a whole were unreliable and that their admission would notfulfill the purposes of the spontaneous- statement hearsay exception. This Court on multiple occasions has concluded that external evidence of unreliability is immaterial. (See People v. Arias (1996) 13 Cal.4th 92, 150 [holding declarant’s inability to confirm hearsay statement on later or calmer occasions does not render spontaneous statement inadmissible]; People v. Sully, supra, 53 Cal.3d at p. 1229 [concluding that apparently unreliable statement by accomplice-declarantis admissible if standards for admission of spontaneous statements are otherwise met]; People v. Farmer, supra, 47 Cal.3d at p. 906 [explaining that where standards for admission of spontaneous statements are met, -117- statements are deemedreliable irrespective of contention that statements in specific case lack indiciaofreliability].) Thus, Veronica’s remarks were admissible spontaneous statements though a portion of her statements, which appellant did not seek to admit for a hearsay purpose, appeared to be untrue. | Veronica’s admissions werealso declarations against her penal interest. “The proponent of such evidence must show ‘that the declarantis unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.’” (People v. Lucas (1995) 12 Cal.4th 415, 462, quoting People v. Cudjo (1993) 6 Cal.4th 585, 607; see also, Evid. — Code, § 1230.) Veronica’s invocation of her Fifth Amendmentprivilege against self-incrimination rendered her unavailable. (RT 52:6229; see People v. Cudjo, supra, 6 Cal.4th at p. 607.) Veronica’s statements that she drew the bath and put Genny in the bathtub were against her penalinterest; when coupled with the evidence that Genny was held in 140-degree water until she sustained third-degree burns to half of her body, the statements undoubtedly incriminated Veronica. Moreover, the statements were sufficiently reliable to warrant admission into evidence. Veronica’s admissions that she drew the bath and put Gennyin the tub — the portion ofVeronica’s statements that appellant sought to admit to provethe truth of the matter asserted — were reliable. Those remarks, which Veronica made while she was well aware that Genny suffered fatal burns in the bathtub, were incriminating; accordingly, “a reasonable [person] in [her] position would not have made the statement[s] unless[s]he believed [them] to be true.” (Evid. Code, § 1230.) Admittedly, the exculpatory portions of Veronica’s statements were self-serving and not -118- covered by the hearsay exception. (See People v. Leach (1975) 15 Cal.3d 419, 441.) However,the trial court could have, and should have, redacted Veronica’s statements to remove the exculpatory portions. (See People v. Duarte (2000) 24 Cal.4th 603, 614.) Although a court, when considering the admissibility of a hearsay statementthat is partly inculpatory and partly exculpatory, typically examines the entire statement to determineif it is sufficiently trustworthy to warrant admissibility (see People v. Duarte, supra, 24 Cal.4th at p. 614), that analysis was not appropriate for this case. Appellant neither attempted to introduce the exculpatory parts of the statements for a hearsay purpose nor asserted that they were true. Even viewing all of Veronica’s statements, her admissions were trustworthy. Although her story maintained that her acts were innocuous, it seems unlikely that she would admit to committing an act that she should have knownthe police would consider incriminating, unless she was the person who had drawn the bath and put Gennyin the water. Thus, her statements were, on balance, inculpatory. Consequently, her statements’ exculpatory aspects did not render untrustworthy the portion of Veronica’s statements that appellant intended to use for a hearsay purpose. Moreover, Veronica’s statements as a whole were trustworthy though they contained someself-serving statements. Significantly, this was “not a case in which [the declarant] admitted to some culpability in order to shift the bulk of the blame to another.” (People v. Brown, supra, 31 Cal.4th at p. 537.) The totality of her statements were more incriminating than hearsay statements from a person whoprovided medical care to perpetrators of a robbery-murderthat this Court found to be properly admitted as declarations against interest in People v. Gordon (1990) 50 Cal.3d 1223, -119- 1251-1253. Also, the inconsistency between some of Veronica’s statements and the physical evidence does not render her statements untrustworthy. (See People v. Cudjo, supra, 6 Cal.4th at pp. 607-609.) Finally, Veronica’s admissions were noless trustworthy than appellant’s admissions made during his interrogation that were admitted into evidenceat both trials and formedthe linchpin of the prosecution’s case that appellant was personally culpable for Genny’s death. Like Veronica’s crime-scene statements to the police officers, appellant made admissions along with exculpatory statements. Yet, the court, ruling that Veronica’s admissions were not declarations against interest, excluded Veronica’s statements and admitted appellant’s statements. In addition, the portions of the statements appellant sought to use for a hearsay purpose were admissible under the nonstatutory catch-all exception to the hearsay rule. (See People v. Demetrulias (2006) 39 Cal.4th 1, 27; Evid. Code, § 1200, Commentofthe Senate Judiciary Committee.) Asstated above, those portions of Veronica’s statementswere both reliable and critical to appellant’s penalty-phase defense. Besides, the statements had a nonhearsay purpose. Veronica’s statements, particularly the untruthful portions, demonstrated her consciousness of guilt, which was probative toward her degree of participation, as comparedto appellant’s.*” Accordingly, the court erred by not admitting Veronica’s statements, irrespective of whether the statements fell within the ambit of any hearsay exceptions. ‘7 At the guilt phase, the trial court refused appellant’s request to instruct the jury that Veronica’s false statements may tend to prove her consciousnessofguilt. (RT 62:8011-8012; see post, Claim XVII.) -120- C. The Exclusion Of The Proffered Evidence Infringed Appellant’s Constitutional Rights Aside from constituting evidentiary error, the trial court’s exclusion of Veronica’s admissions violated appellant’s constitutional rights to present relevant mitigating evidence and a penalty-phase defense, have a fair trial and a fair and reliable capital-sentencing determination, and rebut aggravating evidence, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution andarticle I, sections 7, 15, and 17 of the California Constitution. Thetrial court’s exclusion of Veronica’s admissions infringed appellant’s right to present relevant mitigating evidence. Evidence tending to prove a fact or circumstancethat a factfinder could reasonably find mitigating is relevant mitigating evidence. (Tennard v. Dretke (2004) 542 U.S. 274, 284-285.) Veronica’s admissionsthat it was she who drew the bath and put Genny in the water were undoubtedly relevant: The evidence tended to prove that Veronica was, at a minimum,the primary perpetrator and wasthereby probative toward the circumstances-of-the-offense and minor-participation mitigating factors. (See Pen. Code, § 190.3, factors (a), (j).) Thus, the court’s refusal to admit the evidence was Skipper error per se. (See Skipper v. South Carolina (1986) 476 U.S. 1, 7; People v. Brown, supra, 31 Cal.4th at pp. 577-578 [enunciating per se standard for Skipper error].) If this Court abandonsits per se standard, the exclusion of the evidence nevertheless violated appellant’s constitutional right to present relevant mitigating evidence. The exclusion of the evidence violated appellant’s rights to present a defense at the penalty retrial. The exclusion of defense evidence at the penalty phase infringes the rights to present a defense if the evidence is -121- mitigating andcritical to the defense, unless the state has a countervailing interest in maintaining the integrity of the adversarial process that warrants excluding the evidence. (See ante, at pp. 64-65.) Veronica’s admissions were mitigating, particularly with respect to factor (j) (minorparticipation). Moreover, the admissions were central to appellant’s principal penalty- phase defense that Veronica was the primary, if not the only, perpetrator of the offense. Additionally, excluding the admissions did not advance the state’s interest in maintaining the integrity of the adversarial process. This Court has recognizedthat a capital defendant’s due processrights require the admission of ordinarily inadmissible hearsay where the excluded evidenceis highly relevant and substantial reasons exist to assume the hearsay statement’s reliability. (See People v. Champion (1995) 9 Cal.4th 879, 938.) As explained above, Veronica’s admissions were trustworthy. Even if this Court deems Veronica’s admissions unreliable, on the facts of this case the state lacked a sufficient interest in the adversarial process to permit the exclusion of the evidence. To be sure, this Court has ruled that a capital defendant’s constitutional rights do not ordinarily compel the admission of unreliable hearsay. (See People v. Morrison (2004) 34 Cal.4th 698, 724-725.) However, in this case the prosecution admitted and heavily relied upon admissions appellant made during his interrogation, in which he made both inculpatory and exculpatory statements. Admitting appellant’s statements, but excluding Veronica’s statements, fails to advance the integrity of the adversarial process. Rather, the exclusion of Veronica’s admissions created an imbalancein the adversarial process to appellant’s detriment. Consequently, appellant’s rights to present a defense at the penalty retrial precluded the exclusion of Veronica’s admissions. -122- The imbalance of admitting appellant’s, but excluding Veronica’s, statements violated appellant’s due processrightto a fair trial, as guaranteed by the Fourteenth Amendmentandarticle I, sections 7 and 15. The disparate treatment of the statements despite their similar reliability was fundamentally unfair. (See Mayberry v. Pennsylvania (1971) 400 U.S. 455, 469 (conc. opn. by Harlan, J.) [evenhandedjustice . . . is at the core of due process” ].) Moreover, admitting Veronica’s admissionsas prosecution evidence duringthefirst trial, but excluding them when appellant proffered them as mitigating evidenceat the penalty retrial was fundamentally unfair. If the evidence wassufficiently reliable and probative for whichto base, in part, appellant’s guilt and death-eligibility, it was sufficiently reliable and probative for appellant to use as mitigation. Ths fundamental unfairness constituted another due processviolation. Also, the prosecutor’s introduction of Veronica’s statements at the first trial and use ofthose statements to argue that appellant had a consciousnessof guilt (RT 63 :8093-8094), followed by the prosecutor’s opposition to appellant’s introduction of the evidenceat the penalty retrial to show Veronica’s consciousnessof guilt (RT 90:11166, 11170-11171), wasinconsistent and impermissible. (See Jn re Sakarias (2005) 35 Cal.4th 140, 164.) The prosecutor should have been estopped from opposing appellant’s introduction of Veronica’s statements. (See City ofLong Beach v. Mansell (1970) 3 Cal.3d 462, 493 [applying doctrine of equitable estoppel against government]; Jn re V.B. (2006) 141 Cal.App.4th 899, 907 [recognizing that prosecutors may not be immunefrom judicial estoppel].) Thetrial court permitting him to take inconsistent positions and excluding the statements at the penalty phase violated appellant’s Fourteenth Amendmentandarticle I, sections 7 and 15 rights to due process. -123- Likewise, the exclusion of the evidence deprived appellant of his right to a fair, accurate, andreliable capital-sentencing hearing. (See Saffle v. Parks (1990) 494 U.S. 484, 493.) Appellant’s chief penalty-phase defense was his minorparticipation in the offense. Veronica’s admissions to drawing the bath and placing Gennyin the bath provided strong support for that defense. The exclusion of Veronica’s admissions coupled with the presentation of and emphasis on appellant’s admissions provided the jury with an exaggerated impression of appellant’s relative culpability and thus precluded fair, accurate, and reliable capital-sentencing decision. Furthermore, the exclusion of Veronica’s admissionsinfringed appellant’s right to rebut aggravating evidence. (See Gardner v. Florida (1977) 430 U.S. 349, 362 [holding that sentencer’s consideration of prosecution evidence that defendant did not have opportunity to deny or explain violated defendant’s due process rights].) The prosecution,relying primarily on appellant’s admissions at his interrogation, asserted that appellant drew the waterfor the bath andparticipated in placing Genny in the bathtub. (RT 99:12787, 12817-12820.) Veronica’s admissions constituted appellant’s most direct defense to those accusations. By ruling that Veronica’s admissions were inadmissible, the trial court hamstrung appellant’s ability to rebut the aggravating evidence regarding appellant’s participation in Genny’s death. D. The Exclusion Of The Proffered Evidence Was Prejudicial . Thetrial court’s ruling that Veronica’s admissions were inadmissible at the penalty retrial requires reversal of appellant’s death sentence. If appellant had been permitted to present evidence of Veronica’s admissionsat the penalty retrial, there is a reasonable possibility that -124- appellant would not have been sentenced to death. (See People v. Brown (1988) 46 Cal.3d 432, 448.) Evidence of appellant’s personal culpability was scant and sharply disputed. (See ante, at pp. 85-86.) At the penalty retrial, evidence of appellant’s culpability was limited to the physical evidence, which could not reveal who had perpetrated the offense, and appellant’s admissions. Notably, appellant said during his interrogation that he ran the water for the bath and that both he and Veronica placed Genny in the bathtub. (CT 8:1761-1762.) The prosecutor, at his penalty-retrial closing argument, placed tremendous emphasis on those statements, which were highlighted in the tape of interrogation excerpts that the prosecutor played during his summation. (RT 99:12760, 12785-12803, 12814; Peo. Exh. 111.) Veronica’s admissions werecritical evidence that would have rebutted the inferences the prosecutor sought to make from appellant’s admissions. After hearing evidence of Veronica’s admissions, jurors could reasonably have concluded that Genny wasplacedin the bathtub twice on July 21, 1995: Appellant and Veronica innocuously placed Gennyin the waterfor the first bath, and Veronica burned Gennyin the bathtub after appellant had left the apartment and when Alicia Montes, the upstairs neighbor, heard water running in appellant and Veronica’s bathroom. Alternatively, jurors could reasonably have concluded that appellant’s admissions were untrue statements designed to protect Veronica. In addition to rebutting the aggravating evidence, Veronica’s admissions were a crucial component of appellant’s relative-culpability defense. When combined with the physical evidence of Genny’s burn to the lowerhalf of her body, Veronica’s statements showed that she alone inflicted Genny’s fatal injuries. The exclusion of Veronica’s statements, -125- however, neutered appellant’s defense that his participation in the crime was, at most, minor. Furthermore, this was a close case. (See ante, at pp. 93-94.) One significant difference in the evidence presented at the first trial and the penalty retrial was the exclusion of Veronica’s admissions. Thetrial court’s deeming the statements to be inadmissible hearsay may well account for the. twotrials’ disparate results. Because there is a reasonable possibility that appellant would not have been sentencedto death absent the erroneous exclusion of Veronica’s admissions, state law requires reversal of appellant’s death sentence. The federal constitutional errors compel a similar result. For the reasons described above, respondent cannot demonstrate that the exclusion of Veronica’s admissions were harmless beyond a reasonable doubt.** (See Chapmanv. California (1967) 386 U.S.18, 24.) Thus, this Court should vacate the death judgment.” ‘8 Due to the discretionary nature ofthe capital-sentencing determination, respondent has a high burden of showing that a penalty phase error is harmless. (See ante, at pp. 94-96.) . “? The overwhelming-evidencetest is not an appropriate harmless- error analysis for a penalty phase error. In any event, the aggravating evidence, when weighed againstall of the mitigating evidence, was not overwhelming. (See ante, at pp. 96-98.) -126- IV THE TRIAL COURT’S EXCLUSION OF APPELLANT’S CHILDREN FROM THE COURTROOM WAS ERRONEOUS AND VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS TO PRESENT MITIGATING EVIDENCE AND A PENALTY-PHASE DEFENSE AND TO HAVE A PUBLIC TRIAL Thetrial court denied appellant’s request to exhibit his children to the jury during the penalty phase. (RT 67:8555-8558.) Thetrial court thereby erroneously excluded relevant, admissible evidence and violated appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights to present relevant mitigating evidence and a penalty-phase defense. The court further barred appellant’s four youngest children from briefly attending the trial during a portion of the direct examination of appellant’s father. (RT 68:86210.) That ruling infringed appellant’s Sixth Amendmentandarticle I, section 15 right to a publictrial. A. Facts And Procedural History During his penalty-phase case-in-chief, appellant’s counsel informed the court and the prosecutor that the defense intended to bring appellant’s four youngest children into the courtroom sothat the jury could see them. (RT 67:8548.) He asked that the children be formally exhibited in the mannerthat Veronica Gonzales had been.*° (RT 67:8549.) To avoid traumatizing the children by exposing them to graphic testimony, defense counsel suggested bringing the children into the courtroom during the direct testimony oftheir grandparents, aunt, or attorney. (RT 67:8548-8549.) _ Thetrial court ruled that appellant’s children could not be exhibited °° Duringits rebuttal at the guilt phase andthe penalty retrial, the prosecution exhibited Veronicato the jury. (RT 60:7578; RT 98:12604.) -127- to the jury. The court did not want the children involvedin the case. (RT 67:8555.) The court stated that the children’s physical presence was irrelevant and explained that the children’s presence did not add anything to the factual issues before the jury and that the jury could be informedthat appellant’s children were “real kids” by other means. (RT 67:8555, 8557- 8558.) The day after the court precluded the exhibition of the children, appellant’s parents brought appellant’s four youngest children, Vanessa, Anthony, Valerie, and Alex Gonzales, to the courthouse. (RT 68:8621A- 8621B.) Appellant’s parents, who had custody of those children, brought the children to court due to a lack of child-care alternatives on a day during which they were expecting to testify. (RT 67:8549; RT 68:8621B.) The court expressed concernsthat the defense was seeking to circumventits ruling, but the trial court held no hearing to determine whetherappellant’s parents were acting in good faith. (RT 68:8621A- 8621Q.) In addition, the court stated that it was deeply offended by appellant’s family having brought the children to court to watch their father’s capital trial. (RT 68:8621G.) The court said that the presence of the children in the courtroom would “blackmail” the jury. (RT 68:86211.) The court stated that the children’s involvementin the case, including merely watching thetrial, could result in the children taking personal responsibility for the outcomeif appellant were to be sentencedto death. (RT 68:86211-8621J.) Invoking its authority as a superior court judge cross-designated as a juvenile court judge, the court concludedthat excluding the children would be in their best interests and barred them from the courtroom. The court rejected defense counsel’s requests to permit the children to stay in the courtroom during the direct examination of -128- appellant’s father and refusedto solicit the opinion of Roland Simoncini, the children’s attorney, regarding whether it would be in their best interests to be excluded entirely from the courtroom. (RT 68:86210-8621P.) The exclusion ofthe children, as evidence or as spectators, remained in effect for the penalty retrial. (RT 75:9383; RT 81:9551.) Indeed, the court extendedits ruling and barred the children from the courthouse during the retrial. (RT 81:9602-9603.) B. The Denial Of Appellant’s Request To Exhibit His Children To The Jury Was Error Thetrial court abused its discretion by barring appellant from exhibiting his children to the jury during the penalty phase ofhis capital case. Asthetrial court recognized, the effect appellant’s execution would haveon his children was relevant mitigating evidence of appellant’s character. Consequently, appellant was entitled to present demonstrative evidence of that impact. Asillustrative evidence that appellant’s children would be devastated by appellant’s execution, the exhibition of appellant’s children to the jury was relevant, admissible evidence. At the penalty phase of a capital case, a defendant may present evidence of any aspect of his character offered as a basis for a life sentence. (Lockett v. Ohio (1978) 438 U.S. 586, 604.) Evidence that tends to prove a fact or circumstance that a factfinder could reasonably deem mitigating constitutes relevant mitigating evidence. (Tennard v. Dretke (2004) 542 U.S. 274, 284-285; McCoy v. North Carolina (1990) 494 U.S. 433, 440- 440.) Becauseit related to appellant’s character, evidence of the impact appellant’s execution would have on his children was relevant mitigating evidence. (See People v. Smith (2005) 35 Cal.4th 334, 367; Peoplev. Ochoa (1998) 19 Cal.4th 353, 456; State v. Greene (Ariz. 1998) 967 P.2d -129- 106, 118; Manley v. State (Del. 1998) 709 A.2d 643, 659-660; State v. Lugo (Fla. 2003) 845 So.2d 74, 115; Barnes v. State (Ga. 1998) 496 S.E.2d 674, 687-89; State v. Clark (N.M. 1999) 990 P.2d 793, 819; State v. Stevens | (Ore. 1994) 879 P.2d 162, 167-168.) The impact of appellant’s execution waspositively correlated to the intensity of the children’s love for appellant, which waspartly a product of appellant’s positive qualities. The trial court correctly concluded that execution-impact evidence was both relevant and admissible. (RT 65:8325-8326.) The trial court, however, erredin its conclusion that the presentation of the children to the jury wasirrelevant | and, thus, inadmissible. A party seeking to admit relevant evidence may present that evidence persuasively and forcefully. Whenever there are multiple ways for logically proving a material fact, the proponent of the evidence need not offer only the most antiseptic evidence that could establish the fact. (People v. McClellan (1969) 71 Cal.2d 793, 802.) It is well-established that a prosecutoris free to reject a defense stipulation, though the proffered stipulation would logically establish the facts the prosecutor seeks to prove through evidence, becausethestipulation would “deprive the state’s case of its persuasiveness and forcefulness.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1007.) Similarly, a capital-defendant cannot be forced to present his evidence in its most sanitized form, so long as the more vivid forms of evidence are not barred for reasons other than relevance. For this reason, the trial court erred in precluding the defense, on relevance grounds, from exhibiting appellant’s children to the jury because “we can get the messageto the jury that they’re real kids in other ways.” (RT 67:8558.) Evidence that appellant’s children would be devastated by appellant’s execution was relevant, and the exhibition of the children to the -130- jury — which would have ensuredthat the children were not perceived as mere abstractions — was one way of showing that. This Court has recognized that a party’s ability to use alternative evidence to prove the same point as the proffered evidence has no bearing on whether the proffered evidenceis relevant. (People v. Heard (2003) 31 Cal.4th 946, 975.) Thetrial court’s ruling violated that principle. Courts routinely admit demonstrative evidenceattrials, irrespective ofwhether the same facts can be established by other means. Examples of illustrative evidence include photographs, mannequins, and people. The trial court admitted all three types of evidence, when offered by the prosecutionin this case. Photographs have becomeindispensable itemsofillustrative evidence. This Court has repeatedly upheld trial courts that overruled cumulativeness objections to the admission of photos. Forinstance, this Court has stated: “We have often rejected the argument that photographs of a murder victim should be excluded as cumulativeifthe facts for which the photographsare offered have been established by testimony.” (Peoplev. Price (1991) 1 Cal.4th 324, 441, quoted in People v. San Nicolas (2004) 34 Cal.4th 614, 665; accord, People v. Cole (2004) 33 Cal.4th 1158, 1199.) This Court has also concluded that the ability to prove a photograph’s contents by other means is immaterial to the analysis of the photo’s relevance. (People v. Heard, supra, 31 Cal.4th at p. 975.) Likewise,this Court has also rejected the notion that the prosecution could be forced to accept “antiseptic stipulations in lieu of photographic evidence.” (People v. Pride (1992) 3 Cal.4th 195, 243, quoted in People v. Marks (2003) 31 Cal.4th 197, 226.) In this case, the trial Court admitted myriad autopsy and crime-scene photos, although many ofthe photographs proved the same -131- matters that had been proven by testimony and diagrams. (RT 34:3507- 3508, 3562-3563, 3574-3577; RT 35:3654-3655, 3665-3667, 3677; RT 51:6019). Mannequinsare another example of demonstrative evidence. Mannequinsoffered into evidence have also been repeatedly found to be admissible. (See, e.g., People v. Riel (2000) 22 Cal.4th 1153, 1195; People v. Medina (1995) 11 Cal.4th 694, 754.) Like photographs, the logical points the proponentofthe evidence intends to establish with mannequins can be shown throughless graphic means, such as testimony or a two- dimensional diagram. Nonetheless, mannequins are admissible to permit their proponents to prove their propositions vividly. In this case, the prosecution introduceda life-sized mannequin of Genny, which the court ruled was admissible demonstrative evidence. (RT 51:6075, 6093; RT 91:11367.) People also have been usedas illustrative evidence. The exhibition of a person to the jury constitutes evidence. (Evid. Code, § 140, Law Revision Com. com. (1995 ed.); 31 Cal.Jur.3d (1976) Evidence, § 438.) This Court has long permitted the use ofpeople as demonstrative evidence despite the capacity of other evidence to prove the same points. (See People v. Richardson (1911) 161 Cal. 552, 561-562 [upholding exhibition of five-month-old child to show that child defendant allegedly sought to abort was born “fully matured and perfect” and that child resembled defendant].)*! The North Carolina Supreme Court recently endorsed an >! Atleast onetrial court in this state has permitted the prosecution at the penalty phase to exhibit, as victim-impact evidence, a child fathered by the victim but born after the victim’s death. (See People v. McKinnon (S077166, app. pending).) In another case for which the automatic appeal -132- analogoususe of a young child as evidence. The court upheld the identification of a murder victim’s seven-year-old daughter, who wasseated in the courtroom, as victim-impact evidence. (State v. Barden (N.C. 2002) 572 S.E.2d 108, 131.) The matters the prosecution in that case presumably sought to prove by havingits witness identify the daughter — that the victim fathered and raised her and that she suffered from her father’s death —- mirror what appellant sought to show through the exhibition ofhis children to the jury. Moreover, in this case, the trial court permitted the prosecution to exhibit Veronica Gonzalesin its rebuttals at the guilt phase ofthe first trial and at the penalty retrial. (RT 60:7579; RT 98:12604.) The routine admission ofphotographs, mannequins, and people into evidence, including the introduction of those itemsin this case, further demonstrates the erroneousness of the court’s ruling that the exhibition of appellant’s children wasirrelevant. The question the trial court had to answerin its analysis under Evidence Code section 350 was whether the exhibition of the children was relevant — not whether presenting the children to the jury would have been uniquely relevant. Appellant’s ability to prove the samepoints without having the children exhibited to the jury has no bearing on the relevance of the proffered evidence. (See People v. Heard, supra, 31 Cal.4th at p. 975.) The court’s denial of appellant’s request to exhibit the children to the jury on the basis of a relative-relevance analysis constituted legal error and was thus an abuse ofdiscretion. (See Jn re Marriage ofLaMusga (2004) 32 Cal.4th 1072, 1105 (dis. opn. of Kennard, J.) [‘Thus, a trial court abuses its discretion wheneverit applies is pending, the decedent’s child who was two monthsoldat the time of the capital offense was exhibited to the jury. (See People v. Garcia (S045696, app. pending).) -133- the wrong legal standard to the issue at hand.”]; People v. Russel (1968) 69 Cal.2d 187, 195 [explainingtrial court’s discretion must be exercised using applicable legal principles].) In addition to being logically relevant, the presentation of the children to the jury had narrative relevance. Beyondproving points, evidencetells a story. Exhibiting appellant’s children to the jury would have fulfilled both of these evidentiary functions. In Old Chiefv. United States (1997) 519 U.S. 172, the United States Supreme Court explained the importance ofthe narrative role that evidence presented attrial plays: Evidence . . . has force beyond any linear scheme of reasoning, and as its pieces come togethera narrative gains momentum, with powernot only to support conclusions but to sustain the willingness ofjurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. This persuasive powerofthe concrete andparticular is often essential to the capacity ofjurors to satisfy the obligations that the law places on them. (Id. at p. 187.) In the context of the prosecution presenting evidence of a defendant’s guilt, the Court contrasted vivid evidence from abstract statements: [T]he evidentiary account ofwhat a defendant has thought and done can accomplish whatnoset of abstract statements ever could, not just to prove a fact but to establish its human significance, and so to implicate the law’s moral underpinnings and a juror’s obligation to sit in judgment. Thus, the prosecution may fairly seek to place its evidence before the jurors, as muchto tell a story of guiltiness as to support an inference of guilt, to convince the jurors that a guilty verdict would be morally reasonable as muchas to point to the discrete elements of a defendant’s legal fault. (Id. at pp. 187-188.) Furthermore, a jury’s decisions tend to be based on the selection of a party’s competing story presentedat trial. (Pardo, Juridical -134- Proof, Evidence, and Pragmatic Meaning: Toward Evidentiary Holism (2000) Nw.U.L.Rev. 399, 402-409 [explaining that story model of jury decision making is supported by empirical evidence, embracedbytrial advocacy scholars, and endorsed by courts].) For these reasons,thetrial court’s relevance determination should have considered the proffered evidence’s narrative, as well as the logical, relevance. The exhibition of appellant’s children to the jury would have - transformed them from apparent abstractions to actual children. If the jury had seen appellant’s children in their flesh and blood, rather than merely hear aboutthem in adult witnesses’ testimony and see them instill photographs, the evidence that appellant’s execution would devastate the children would have been more powerful. In contrast to the sterilized evidence to whichthetrial court limited appellant, presenting the children to the jury would have enabled appellantto tell a convincing story of the impact appellant’s execution would have on his young children. More fundamentally, showing the jury appellant’s children would have enabled appellant to present a superior narrative ofwhy he should receive a life sentence. The previously discussed impact of appellant’s execution on his children formed part of this narrative. In addition, creating and raising the children comprised a central component of appellant’s adult life. Presenting his children as evidence would have enlivened the story of appellant’s background. The jury would have seen the most positive products of appellant’s adult life; in the years preceding Genny’s death, appellant was a stay-at-home father. Evidence that appellant raised these children, including Anthony, whom appellant believed wasnothis biological son, would have been far morevividif the trial court had permitted appellant to exhibit the children to the jury. -135- The effective presentation of a defense narrative in the penalty phase ofa capital case is a crucial determinant of whether the defendant will receive a life sentence. (See Pokorak, Dead Man Talking: Competing Narratives and Effective Representation in Capital Cases (1999) 30 St. Mary’s L.J. 421, 446.) Austin Sarat has explained the goals of a capital defendant’s penalty phase narrative: [T]he overriding strategic goal in the narratives constructed by all death penalty lawyers is to humanizetheclient. [Footnote.] The strategy c* sing narrative to humanize the client is a response to the widely held belief that jurors and judges will only condemn those whom they see as fundamentally “other,” as inhuman, and as outside the reach of the community of compassionate beings. (Sarat, Narrative Strategy and Death Penalty Advocacy (1996) 31 Harv. C.R.-C.L. L. Rev. 353, 370-371.) When a capital defendant effectively presents extensive mitigating evidence, jurors tend to embrace the defendant’s narrative and put themselves in his shoes. (Haney, Commonsense, Justice and Capital Punishment (1997) 3 Psychol. Pub. Pol’y & L., 303, 329.) Thus, by hamstringing appellant’s ability to present a compelling narrative to the jury, the trial court’s denial of appellant’s request to exhibit his children to the jury undermined appellant’s case in mitigation. In view of the importance ofpresenting the children to the jury to buttress appellant’s mitigation narrative, the proffered evidence was relevant. The court abusedits discretion by excluding this evidence as irrelevant.Trial courts lack the discretion to admit irrelevant evidence. °2 Although the trial court expressed concernsthat appellant’s children would be harmedifthey were exhibited to the jury, the court excluded the evidence because it deemed the exhibition irrelevant. (RT -136- (People v. Heard, supra, 31 Cal.4th at p. 973.) Likewise, trial courts have no discretion to bar relevant evidence on irrelevancy grounds. C. By Preventing The Children From Being Exhibited To Or Seen By The Jury, The Trial Court Violated Appellant’s Sixth, Eighth, And Fourteenth AmendmentRights Thetrial court’s refusal to permit appellant to exhibit his children to the jury constituted more than mere evidentiary error. The ruling violated appellant’s constitutional right to present evidence in mitigation andin his defense, as well as his right to present a complete penalty-phase defense. The contours of these constitutional rights are discussed in Claim I. (See ante, at pp. 79-80.) The court’s ruling formeda perse violation of appellant’s Eighth Amendmentright, and hisarticle I, section 17 right, to present relevant mitigating evidence. (See Tennard v. Dretke (2004) 542 U.S. 274, 284-285; Skipper v. South Carolina (1986) 476 U.S. 1, 4-8; People v. Brown (2003) 31 Cal.4th 518, 577-578; see also, ante at p. 80.) As explained in the preceding subsection, the exhibition of appellant’s children to the jury was relevant mitigating evidence. Therefore, the court’s denial of appellant’s request to presenthis children to the jury amountedto per se Skippererror. By precluding appellant from showing his children to the jury, the trial court also violated appellant’s rights to present a defense. (See Green v. Georgia (1979) 442 U.S. 95, 97.) The exclusion of defense evidenceat the penalty phase violates a defendant’s Sixth and Fourteenth Amendment 67:8557.) The erroneousness of the court’s subsequent conclusion that the children would be harmedifthey appeared in the courtroom during appellant’s presentation of mitigating evidence is discussed below. (See post, at pp. 139-141.) -137- andarticle I, section 7 and 15 rights to present a defense if the evidence was mitigating, the state lacked an overriding interest in maintaining the integrity of the adversarial process by excluding the evidence, and the evidence wascritical to the defense. (See ante, at pp. 64-65.) The proffered evidence was mitigating. Because it was relevant and erroneously excluded on relevance grounds,the state lacked an overriding adversarial- processinterest in barring appellant from exhibiting his children to the jury. Presenting appellant’s children to the jury wasalsocritical to appellant’s case in mitigation. In addition to relative culpability, appellant’s mitigation centered around how appellant’s background and character demonstrated that his life should not be extinguished at the handsofthe state. Fathering and raising his children comprised a significant aspect of appellant’s background. The devastation appellant’s children would face if appellant were to be executed reflected on appellant’s character. The forceofthis mitigating evidence hinged on appellant’s ability to present a convincing narrative. Thetrial court’s ruling prevented appellant from advancing a compelling narrative of his background and character to the jury and, thus, increased the likelihood that the jury would return a death verdict. Consequently, exhibiting appellant’s children was crucial to appellant’s penalty-phase defense. D. The Trial Court Lacked The Authority To Bar The Children From The Courtroom; Alternatively, The Court Erred By Ruling That The Children’s Best Interests Required Precluding Appellant’s Children From Watching The Direct Examination Of Their Grandfather At The Penalty Phase Thetrial court had no authority to act in appellant’s children’s purported best interests and forbid them from attending any portion of appellant’s trial. Although the children were dependents ofthe juvenile -138- court, the trial court was serving in the criminal division. Thetrial court’s cross-designation as a juvenile court judge, a status held by all San Diego Superior Court judges (RT 68:86210), was immaterial; the trial court was presiding over appellant’s criminal case. That the trial court did not follow the formalities of a juvenile court, such as confidentiality, is further proof that the trial court was not acting as a juvenile court. (See Welf. & Inst. Code, § 827.) Basing rulings on determinations of a child’s best interestis appropriate only for a juvenile or family court. (See Jn re Chantal S. (1996) 13 Cal.4th 196, 201; Welf. & Inst. Code, § 202, subd. (d).) Furthermore, application of the best-interests standard to preclude defense evidence or bar a defendant’s children from attending his trial was improper and unprecedented. In a criminalcase, the trial court must safeguard the defendant’s constitutional rights, includingthe rights to present a defense and mitigating evidence and the right to a public trial. The court had no authority to bar the children from the courtroom though it had the capacity, which it used, to declare Ivan Jr. and Michael unavailable to testify at trial. Evidence Code section 240 vested thetrial court with the powerto declare the child witnesses unavailable. But, no section of the Evidence Code conferred the court with the powerto exclude appellant’s children from the courtroom audience during appellant’s trial. Even if the trial court had the authority to bar appellant’s children from the courtroom and the courthouse,the trial court’s ruling that the exclusion of the children would bein their best interests was devoid of evidentiary support and, thus, in error. A trial court’s best-interests determination must be supported by sufficient evidence. (See, e.g., In re Laura F. (1983) 33 Cal.3d 826, 831-838.) The court’s ruling here wasnot. Thetrial court heard no evidence regarding whether appellant’s -139- children would be harmedifthey were present in the courtroom during a portion of appellant’s penalty-phase case-in-chief.*? Rather, without receiving any input from mental health experts or therapists who had treated appellant’s children, the court surmised that viewing any part ofthe trial would be detrimental to them. In contrast, prior to declaring Ivan Jr. and Michael unavailableto testify at trial, the trial court heard extensive testimony on the expected impact of their testifying for the prosecution in their parents’ capital trials. (RT 23:2101-RT 24:2453.) Thetrial court’s supposition that Vanessa, Alex, Valerie, and Anthony would be harmed by briefly appearing in the courtroom during their paternal grandfather’s testimony about appellant cannot be extrapolated from the testimony pertaining to the harm twodifferent children, Ivan Jr. and Michael, would have been expected to suffer if they had testified against their parents. Furthermore, a gargantuan difference existed between appellant’s four youngest children attending a portion of appellant’s trial in order to support appellant and enhance his mitigating evidence, and appellant’s two oldest children testifying as prosecution witnesses and potentially contributing to death verdicts against their parents. Moreover,the trial court’s consideration of appellant’s four youngest children’s purported best interests was one-sided. The court expressed concerns that the youngest children wouldirrationally ascribe responsibility to themselves if appellant were to be sentenced to death if they attended a portion of appellant’s trial. (RT 68:86211.) The court never considered the regret and powerlessness the children would feel if they 3 The court denied appellant’s request to seek the opinion of Roland Simoncini, the children’s attorney, on whetherit was in the children’s best interest to be excluded from the courtroom. (RT 68:8621P.) -140- were denied the opportunity to appear in court and show support fortheir father while he wasontrial for his life. Nor did the court consider the impact on the youngest children upontheir realization that the trial court barred them from breathinglife into appellant’s mitigating narrative. Additionally, the trial court exercised its purported powerto protect appellant’s children’s best interests inconsistently. When admitting the videotapes of Ivan Jr.’s preliminary hearing testimony,thetrial court concluded that the Ivan Jr.’s interest not to have his testimony used against his parents hadto yield to the prosecution’s need to makeits case. (RT 29:3252; RT 55:6885, 6891-6892.) In contrast, when appellant sought the participation of his youngest children,the trial court’s best-interests determination was paramount, despite the deleterious effect on appellant’s case in mitigation andhis right to a public trial. E. By Barring Appellant’s Children From The Courtroom, The Trial Court Violated Appellant’s Sixth Amendment Right To A Public Trial Thetrial court’s exclusion of appellant’s four youngest children from the courtroom infringed appellant’s Sixth Amendmentright to a public trial, as well as his rights to a public trial pursuantto article I, section 15 of the California Constitution and Penal Codesection 686. In addition to ensuring that people with noaffiliation to the parties can attend trial, the right to a public trial encompasses a defendant’s right to have his family attend his criminal trial. When discussing the right to a public trial, the United States Supreme Court wrote: “[A]n accusedis at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged.” (Un re Oliver (1948) 333 U.S. 257, 272.) The court, by banning appellant’s youngest children from appearing in the courtroom, and ultimately the courthouse, contravenedthisright. -141- Althoughthe right to a publictrial is not absolute, the rare circumstancesin which the public-trial right could yield to an overriding state interest were not present in this case. The United States Supreme Court detailed the high burden that must be reached before a defendant’s public-trial right could be nullified: [T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, theclosure must be no broaderthan necessary to protect thatinterest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. (Waller v. Georgia (1984) 467 U.S. 39, 48.) For several reasons, appellant’s right to a public trial remained in full force in this case. First, the state did not have an overriding interest in excluding appellant’s children from the courtroom. Though protecting dependents of the juvenile court from harm is a worthy goal, it is unlikely that appellant’s four youngest children would have been harmedbyattending the portions of the penalty phase in which appellant’s relatives testified about appellant’s background and character. As explained in the previous subsection, the court had no evidentiary support for its supposition that any appearance in the courtroom duringthe trial would harm the children. Nor did the prosecution present evidence that harm would likely ensue from the children’s attendanceat any portion ofthe trial. Moreover, the state had no overriding interest in barring the children to protect the jury from what the court called blackmail. If a defendant’s relatives could lawfully be barred from the courtroom because ofa fear of “blackmail” or sympathy, then a defendant’s right to a public trial, which includes the right to have family membersattend his trial, would be neutered. Also, the presence of the -142- children would have been admissible mitigating evidence. (See ante, at pp. 129-130.) Additionally, it is incongruous to consider the presence of | appellant’s children as “blackmail” of the jury where the prosecution in a capital case may present photographs of the decedent before her death, as was donein this case (RT 51:6145), and introduce victim-impact evidence. Indeed,it is hardly uncommonfor the prosecution to introduce the presence of a murder victim’s child in the courtroom as victim-impact evidence. (See People v. McKinnon (S077166, app. pending); People v. Garcia (S045696, app. pending); State v. Barden, supra, 572 S.E.2d at p. 131.) The only thing remotely approaching an overriding state interest was the protection of appellant’s children from harm, which was unlikely to result from appellant’s proposal to have them attend brief portions of his penalty- phase case-in-chief. Second, the court’s complete bar on appellant’s four youngest children attending the trial was overbroad. Evenifthe children would have been harmed if they had observed testimony and exhibits of Genny’s injuries or the acts believed to have been inflicted upon her, excluding the children from the entire trial constituted an unduly broad remedy. Hearing their paternal grandfathertestify about how appellant wasraisedin a tight- knit family, used to play the guitar, and was the second personin the family to graduate from high school could not have been more different from evidence regarding how their cousin died. The court’s exclusion order — a blanket ruling barring appellant’s children from attending anypart ofthe trial — was broader than necessary to protect the interest of saving the children from harm. Third, the court gave insufficient consideration to narrowly tailored alternatives to the complete bar to appellant’s four youngest children -143- attending the trial. The court rejected out ofhand defense counsel’s suggestion that the children attend most of their paternal grandfather’s direct examination but leave the courtroom before defense counsel asked what appellant’s life meant to him. (RT 68:86210.) In addition, the court refused to receive input from Roland Simoncini, the children’s attorney. (RT 68:8621P.) The court also neglected to consider having the children present only for the portions of their paternal grandfather or aunt’s testimony about them. Fourth, the trial court’s findings were notsufficient to support closing the courtroom to appellant’s four youngestchildren. As discussed above, the court had no evidence to support its premise that the youngest children would be harmedbyattending any part of appellant’s trial. (See People v. Garcia (App. 2000) 710 N.Y.S.2d 345, 348 [“Moreover, when the exclusion applies to an identified family member,the trial court’s reasons must be ‘demonstrated and documented’in the record [citations] by specific findings adequate to permit appellate review ofthe order.”], aff'd (N.Y. 2000) 750 N.E.2d 1049.) Neither speculation nor a naked assertion can suffice to exclude appellant’s children from the courtroom,let alone the | courthouse. (See Rodriguez v. Miller (2nd Cir. 2006) 439 F.3d 68, 74-76.) Rather, the court, by failing to conduct a particularized inquiry at which it was demonstrated that excluding the children was necessary to advance an overriding state interest, could not constitutionally bar the children from the courtroom. (See Carson v. Fischer (2nd Cir. 2005) 421 F.2d 83, 91-92.) Accordingly, under the factors the United States Supreme Court delineated in Waller v. Georgia, supra, 467 U.S.at p. 48, appellant’s Sixth Amendmentright to a public trial could not give way to an overriding state interest. Besides flouting United States Supreme Court precedent,thetrial -144- court’s closing thetrial to appellant’s children conflicted with rulings from otherjurisdictions holding that barring defendants’relatives from the courtroom infringed the defendants’ public-trial rights. (See Rodriguez v. Miller, supra, 439 F.3d at pp. 73-76; Vidal v. Williams (2nd Cir. 1994) 31 F.3d 67, 69; Walker v. State (Md.App. 1999) 723 A.2d 922, 931-936; People v. Garcia (N.Y. 2000) 750 N.E.2d 1049; People v. Nieves (N.Y. 1997) 683 N.E.2d 764, 767; People v. Gutierez (N.Y. 1995) 657 N.E.2d 491.) Thus, the bar on appellant’s four youngest children from attending any part of appellant’s trial violated appellant’s right to a publictrial. F. The Trial Court’s Rulings And Concomitant Violations Of Appellant’s Constitutional Rights Require Vacating The Death Judgment Dueto the exclusion of appellant’s children from evidence and from the courtroom, appellant’s death sentence must be reversed. It is reasonably possible that appellant would not have been sentenced to deathif thetrial court did not violate state law by barring appellant’s children from being presented to, or seen by, the jury. In addition, respondent cannot show that the denial of appellant’s constitutional rights to present a defense and introduce relevant mitigating evidence was harmless beyonda reasonable doubt. Furthermore, the denial of appellant’s constitutional right to a public _ trial constitutes structural error that requires the automatic reversal of appellant’s death sentence. Thetrial court’s state-law errors were prejudicial. Errors made understate law at the penalty phase mustresult in reversal of a death judgmentif there is a reasonable possibility that the defendant would not have been sentenced to death absent the error. (People v. Brown (1988) 46 Cal.3d 432, 448.) Precluding appellant from introducing his children to the jury or having the jury observe the children hamstrung appellant’s effort to -145- present a compelling narrative of his background andhis character. (See ante, at pp. 134-136.) The court’s erroneous rulingsreduced appellant’s children, as well as the effect appellant’s execution would have on them and appellant’s efforts to raise the children, to mere abstractions. Because the quality of the defense presentation of its mitigating evidence playsa critical role in a jury’s death-sentencing determination,it is reasonably possible that appellant would not have been sentenced to death if the court had not erroneously forbidden appellant from exhibiting his children to the jury and excluded them from court. In Barnes v. State, supra, 496 S.E.2d at pp. 687-689, the Georgia Supreme Court found a similar error to be prejudicial. The defendantin that case sought to admit photographs of his daughter, stepchildren, and nephew to “make morereal and apparentto the jury” that a death sentence would adversely impact the children. (/d. at p. 687.) Concluding that the photos engendered sympathy,the trial court excluded the photos. On appeal, the state argued that the photographswereirrelevant and thus properly barred andthat any error in their exclusion was harmless because eleven witnessestestified to what the photographs showed. (/bid.) The Georgia Supreme Court, explaining that “the photographsofhis child and stepchildren show that heis a father in a way that no amountoftestimony could duplicate,” rejected those arguments. (/d. at p. 689.) In this case, exhibiting appellant’s children to the jury would likewise have shown more effectively than testimony that appellant is a father, that he raised the children, and that the children would be devastated by his execution. Photographs, which the trial admitted in this case, were a superior form of evidence than testimony; however, presenting the children to the jury would have more compellingly told appellant’s narrative than the combination of -146- testimony andstill photographsthat the court admitted into evidence. Accordingly, the trial court’s refusal to permit appellant to exhibit his children to the jury and its ban on havingthe children attend even a small portion ofthe trial was prejudicial. In addition, this was a close case. (See ante, at pp. 93-94.) Because there was a reasonablepossibility that appellant would not have been sentenced to death absentthe trial court’s errors, the state-law errors require that this Court vacate the death judgment. Moreover,the infringement of appellant’s constitutional rights to present a defense and relevant mitigating evidence also should result in reversal of appellant’s death sentence. For the reasons elucidated above, respondent cannot show beyonda reasonable doubtthat the denial of these rights had no impact on the death verdict. (See Satterwhite v. Texas (1988) 486 U.S. 249, 258-259; Chapman v. California (1967) 386 U.S. 18, 24.) Dueto the discretionary and subjective nature of the capital-sentencing determination, respondent bears a high burden of showing that a penalty phaseerror is harmless. (See ante, at pp. 94-96.) The trial court, by denying appellant’s constitutionalrights to present a defense and mitigating evidence, diluted appellant’s mitigating narrative, which likely, or at least possibly, contributed to the death verdict. (See Pokorak, supra, 30 St. Mary’s L.J. at p. 446 [explaining that presenting effective narrative of capital defendant’s life is only way to obtain life verdict].) As stated above, this was a close case. Respondent’s inability to demonstrate that the constitutional errors had no impact on the death verdict precludes this Court from deeming the errors harmless. The overwhelming-evidencetestis inappropriate for penalty phase errors. In any event, the aggravating evidence, when comparedto the mitigating evidence, was not -147- overwhelming. (See ante, at pp. 96-98.) The infringement of appellant’s right to a public trial requires the automatic reversal of appellant’s death sentence. Thetrial court, by banning appellant’s children from all parts of appellant’s penalty retrial, committed a structuralerror. (See Johnson v. United States (1997) 520 U.S. 461, 468-469.) Thus, prejudice is conclusively presumed. (Wallerv. Georgia, supra, 467 U.S. at pp. 49-50.) -148- Vv THE EXCLUSION OF APPELLANT’S MITIGATING EVIDENCE VIOLATED THE EVIDENCE CODE AND APPELLANT’S CONSTITUTIONAL RIGHTS In addition to excluding defense evidence described in ClaimsI through IV,thetrial court prohibited appellant from presenting evidence that Ivan Gonzales, Jr. would be especially damaged by appellant’s execution because Ivan Jr. had been a prosecution witness, and hindered appellant’s presentation of evidence of his family background. The court’s rulings were evidentiary errors that also infringed appellant’s constitutional rights to present mitigating evidence, rebut aggravating evidence, and have afair and reliable capital-sentencing proceeding. A. Facts And Procedural History Ivan Jr. testified for the prosecution at the preliminary hearing, and the prosecution introduced his videotaped testimonyat its guilt-phase case- in-chief. (See post, at pp. 201-202.) At the penalty phaseofthefirst trial, the trial court barred appellant from eliciting evidence regarding the impact appellant’s execution would have on Ivan Jr. based on his having been a prosecution witness. (RT 66:8419; RT 68:8724.) At the penalty retrial, at which neither party introduced Ivan Jr.’s preliminary hearing testimony or earlier statements, the court precluded appellant, primarily on relevance groundsand, secondarily, under Evidence Code section 352, from informing the jury that the prosecution used Ivan Jr.’s testimonyat the first trial. (RT 82:9698-9701.) In addition, the court excluded as irrelevant mitigating evidence of appellant’s father’s and uncle’s backgrounds (RT 67:8611; RT 68:8626- 8628, 8760-8761; RT 96:12286, 12293-12294), appellant’s parents meeting each other and courting (RT 68:8761; RT 96:12294; RT 98:12512), -149- appellant’s mother’s feelings when she brought appellant home from the hospital after his birth (RT 97:12472), and the details of and explanations for appellant’s mother’s disapproval of appellant’s relationship with Veronica (RT 98:12564-12568, 12574). Thetrial court also ruled thatthe introduction of defense evidence that appellant was particularly supportive of Anthony, whom appellant and others believed was the product of Veronica’s affair with her teenage cousin, would open the door to prosecution evidence that appellant was a bad parent who used drugs and kept a dirty house. (RT 82:9709-9710.) In light of that ruling, appellant did not present the evidence. B. The Trial Court’s Rulings Were Erroneous Thetrial court erred in ruling that appellant’s proffered evidence regarding Ivan Jr.’s guilt-phase testimony and appellant’s family background wasirrelevant and thus inadmissible. The United States Supreme Court hasarticulated a broad standard of relevance for mitigating evidence. Evidence that tends to prove a fact or circumstancethat a factfinder could reasonably deem mitigating constitutes relevant mitigating evidence. (Tennard v. Dretke (2004) 542 U.S. 274, 284-285.) Each componentof evidencethat the trial court excluded metthis “low _ threshold”ofrelevance. (Jbid.) Ivan Jr. testifying as a prosecution witnessat the preliminary hearing and, via the preliminary hearing videotape, at the guilt phase, was relevant mitigation. The impact appellant’s execution would have on Ivan Jr. was relevant mitigating evidence becauseit pertained to appellant’s character, a quintessential category of mitigating evidence. (See, e.g., Lockett v. Ohio (1978) 438 U.S. 586, 604; People v. Smith (2005) 35 Cal.4th 334, 367.) The prosecution’s use of Ivan Jr.’s preliminary hearing -150- testimony to obtain a jury verdict that rendered appellanteligible for the death penalty was probative of the impact that appellant’s execution would have on Ivan Jr.: Because Ivan Jr.’s testimony would have helped bring about the result, the testimony could fairly be expected to intensify the impact the execution would have on Ivan Jr. (RT 22:1954, 1974, 2030- 2031; RT 23:2263; RT 24:2297-2298, 2318, 2334, 2351.) Furthermore, appellant’s character would partly determine the extent of the execution impact’s increased intensity: the better appellant’s character, the more devastating it would be for Ivan Jr. that he played a role in his father’s execution. Accordingly, the fact that Ivan Jr. testified for the prosecution at the preliminary hearing and the prosecution introducedhis testimonyat the guilt phase wasrelevant-at the penalty retrial. The trial court abused its discretion by barring the evidence. Furthermore,thetrial court’s alternative holding that Evidence Code section 352 barred the evidence was error. Thetrial court’s belief that the evidence lacked probative value tainted thetrial court’s weighing under section 352. Moreover,the trial court’s concerns about the jury being confused or deceived by being informedthat Ivan Jr. testified as a prosecution witness were overblown. There would have been nothing misleading about informing the jury at the penalty retrial that Ivan Jr. had been a prosecution witness. The prosecution called Ivan Jr. as a witness at the preliminary hearing and introduced his videotaped testimonyat the guilt phase. Moreover, at the guilt phase, the prosecution relied heavily on Ivan Jr.’s videotaped preliminary hearing testimony. (See post, at pp. 231-232.) Although IvanJr.’s statements made in the days following Genny’s death inculpated Veronica far more than appellant, Ivan Jr.’s testimony and prior statements as a whole formed a major componentofthe prosecution’s case -151- against appellant at the guilt phase. Consequently, the penalty-retrial jury would not have been confused or deceived if it had been told that Ivan Jr. wasa prosecution witness at the preliminary hearing and guilt phase. The evidence regarding appellant’s family was likewise relevant. Evidence of a capital defendant’s background constitutes relevant mitigating evidence. (Penry v. Lynaugh (1989) 492 U.S. 302, 318-319; People v. Roldan (2005) 35 Cal.4th 646, 739.) A capital defendant’s family history comprises part of his background and,therefore, constitutes relevant mitigating evidence. (Wiggins v. Smith (2003) 539 U.S. 510, 523-525; Eddings v. Oklahoma (1982) 455 U.S. 104, 115; People v. Marsh (1984) 36 Cal.3d 134, 144, fn. 8.) Accordingly, the trial court abusedits discretion by sustaining the prosecution’s relevance objections to appellant’s evidence of . his family background. In addition, Belia Gonzales’s disapproval of appellant’s relationship with Veronica and the reasons for her disapproval werealso relevant. Appellant’s relationship with Veronica, his wife and the alleged alternative perpetrator, pertained to appellant’s background, as well as the minor- participation and substantial-domination mitigating factors. (See Pen. Code, § 190.3, factors (g), (j), and (k).) Thetrial court also abusedits discretion by ruling that evidence of appellant being supportive of Anthony, whom heraisedas his son despite not being the biological father ofthe illegitimate child, would open the door to drug-use and dirty-house evidence. Appellant soughtto introduce the evidence to show that because appellant did not single out Anthony for abuse or mistreatment, despite having a reason for doing so, he wasnot the person who singled out Genny for maltreatment. He did not seek to use the evidence to prove that he was a good father. The scopeofproperrebuttal -152- waslimited to rebutting the “character trait [appellant offered] in his own behalf.” (People v. Ramirez (1990) 50 Cal.3d 1158, 1193.) Because appellant did not attempt to prove that he was a goodfather, the court erred in ruling that the prosecution would have been entitled to use drug-use and dirty-house evidence to rebut an assertion that appellant did not try to make. C. The Evidentiary Rulings Infringed Appellant’s Constitutional Rights Beyond being evidentiary errors, the trial court’s rulings violated appellant’s right to present relevant mitigating evidence provided by the Eighth and Fourteenth Amendments to the United States Constitution and article I, section 17 of the California Constitution. As explained above, the evidence proffered at the penalty retrial was relevant. Because the “low threshold for relevance [was] met, the ‘Eighth Amendmentrequires that the jury be able to consider and give effect to’ a capital defendant’s mitigating evidence.” (Tennard v. Dretke, supra, 124 S. Ct. at p. 2570, quoting Boyde v. California (1990) 494 U.S. 370, 377-378.) Therefore, the trial court’s exclusion of the relevant mitigating evidence discussed above was Skipper error per se. (See Skipper v. South Carolina (1986) 476 U.S.1, 7; People v. Brown, supra, 31 Cal.4th at pp. 577-578 [articulating per se standard for Skipper error].) The trial court’s ruling that the evidence of appellant’s relationship with Anthony would open the door to drug-use and dirty-house evidencealso violated appellant’s right to present mitigating evidence because, as the court was aware, the ruling impelled appellant not to present the evidence and wasthusthe functional equivalent of barring the evidence. Additionally, the court’s exclusion of the execution-impact evidence pertaining to Ivan Jr.’s preliminary hearing testimony violated appellant’s -153- due processrights, as guaranteed by the Fourteenth Amendmentandarticle I, sections 7 and 15, and appellant’s right to a fair, accurate, and reliable sentencing hearing as guaranteed by the Eighth and Fourteenth Amendments andarticle I, section 17. Because this Court has interpreted factor (a) broadly to permit the generous introduction of victim-impact evidence, constitutional guarantees of fundamental fairness dictate that appellant be permitted to present execution-impact evidence. (See Logan, | When Balance and Fairness Collide: An Argumentfor Execution Impact Evidence in Capital Trials (1999-2000) 33 U. Mich. J. L. Reform 1, 41-46; King & Norgard, What About Our Families? Using the Impact on Death Row Defendants’ Family Members as a Mitigating Factor in Death Penalty Sentencing Hearings (1999) 26 Fla. St. U. L.Rev. 1119, 1160-1161.) The trial court’s refusal to permit the jury to be informedthat the prosecution used Ivan Jr.’s preliminary hearing testimony to convict appellant and establish his death-eligibility denied appellant impact-evidenceparity. D. The Errors Were Prejudicial This Court should reverse appellant’s death sentence. If appellant had been permitted to inform the jury that Ivan Jr. testified as a prosecution witnessat the preliminary hearing and guilt phase, present the excluded evidence of his family background, andelicit evidence ofhis relationship with Anthony without opening the door to drug-use and dirty-house evidence, there is a reasonable possibility that appellant would not have been sentenced to death. (See People v. Brown (1988) 46 Cal.3d 432, 448.) Because evidence of appellant’s personal culpability was questionable and this wasa close case (see ante, at pp. 85-87), the information withheld from the jury could well have tipped the scales away from death. The added impact appellant’s execution would have on Ivan -154- Jr., which related to appellant’s character, could have played a significant role in the jury’s weighing process. The jury atthefirst trial, which was aware ofIvan Jr.’s role in the prosecution securing a conviction and special- circumstance finding, hungat the penalty phase, and the jury at the penalty retrial, which did not have that information, returned a death verdict. It was reasonably probable that the exclusion of the evidenceat the retrial caused the disparate results. Likewise, the evidence about appellant’s family that the court’s rulings prevented the jury from hearing at the penalty retrial also could have hadsignificant weight;the evidence that appellant came from an upstanding family and that his father and uncle served their county’s armed forces would have underscored appellant’s penalty-phase defenses that he was, at most, a minorparticipant in the offense and that appellant’s character had redeeming value. Belia Gonzales’s testimony regarding her disapproval of her son’s relationship with Veronica would have buttressed the substantial-domination defense. Appellant’s relationship with Anthony cast doubt on the degree of appellant’s participation in the offense and shed positive light on appellant’s character. At the very least, respondent cannot demonstrate that the errors were harmless beyond a reasonable doubt. (See Chapmanv. California (1967) 386 U.S. 18, 24.) Thus, this Court should vacate the death judgment.* ** Dueto the discretionary nature of the capital-sentencing determination, respondent has a high burden of showingthat a penalty- phaseerror is harmless. (See ante, at pp. 94-96.) °° ‘The overwhelming-evidencetest is not an appropriate harmless- error analysis for a penalty-phase error. In any event, the aggravating evidence, when weighed against all of the mitigating evidence, was not overwhelming. (See ante, at pp. 96-98.) -155- VI THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR A NEW TRIAL DUE TO THE JURY’S FAILURE TO DELIBERATE ON AND FIND AN ESSENTIAL ELEMENT OF THE TORTURE-MURDERSPECIAL CIRCUMSTANCE The torture-murder special circumstance wasthe sole basis for appellant’s death-eligibility. Although the jury signed a verdict form signifying that it had found true the lone special circumstance the prosecution had alleged, immediately after the conclusion ofthefirsttrial two jurors revealed to the trial court that the jury did not find that appellant had intended to kill Genny, an essential element of the torture-murder special circumstance. In separate conversations with thetrial court, the jurors said that the jury believed that appellant had lacked the intentto kill. A subsequentinvestigation uncovered that the jury failed to deliberate on the intent-to-kill element. Despite these fatal flaws with the special- circumstanceverdict, the trial court denied appellant’s motion for a new trial on the special-circumstance finding. Consequently, appellant sits on death row althoughthe jury never deliberated on or found an element necessary to establish his eligibility for the death penalty. A. Facts And Procedural History After declaring a mistrial at the penalty phase ofthe first trial, at which the jury was deadlocked, thetrial court invited the jurors to speak to counselor the court about the case. (RT 73:9325-9326.) The court cautioned the jurors that what they said to counsel may be revealed in court. (RT 73:9526.) The court held separate conversations with two jurors, Numbers 6.and 12, who each in responseto the court asking how the jury had analyzed the intent-to-kill issue, indicated that the jury’s consensus was -156- that appellant had not intended to kill Genny. Oneofthe jurors explained that the jury believed that Genny’s death was unintentional. (RT 74:9330- 9331; CT 13:3038.) After learning about the jurors’ statementsto thetrial court,°*° defense counsel spoketo nine of the jurors who had participated in the guilt-phase deliberations. (CT 11:2415.) Five of the jurors signed declarations, and four declined the defense request to sign declarations. (CT 11:2519.) In all five juror declarations, the jurors stated that the jury found the torture-murderspecial circumstance solely on the presence of torture. Four of the jurors declared that the jury did not find that appellant had intendedto kill Genny. Three stated that the jury did not separately analyze whether he had intendedto kill, and a fourth wrote that the jury did “not really” discuss or emphasize the issue. In addition, three of the jurors expressed their belief that appellant had not intended to kill, and another opined that he may not have intendedto kill. (CT 11:2436-2440.) Besides the five jurors whostated in declarations that the jury did not discussor find true the intent-to-kill element, a sixth juror made similar statements to | defense counsel but did not sign a declaration, and a seventh juror made similar statementsto the trial court but did not speak to defense counsel. (CT 11:2416-2418, 2436-2440.) After the defense conducted its investigation, the prosecutor spoke to and obtained declarations from eight jurors. In those declarations, the jurors stated that the foreperson read the jury instructions multiple times and wrote out and posted the elements of the special circumstance. Four jurors 56 The court disclosedthis information to counsel and appellant during the first on-the-record proceeding following the court’s declaration of a mistrial. (RT 74:9331.) -157- stated that they discussed the facts in relation to whether appellant had intended to kill. One said that he discussed with another juror whether appellant had intendedto kill. Additionally, seven jurors expressed a personalbelief that appellant had possessed anintent to kill, though some of them hadpreviously articulated a contrary view to the court or defense counsel. (CT 11:2467-2469, 2472-2483.) Prior to the penalty retrial, appellant moved for a newtrial on the special-circumstance finding. (CT 11:2409-2440.) In the motion, appellant argued that jurors’ statements that the jury did not deliberate on or find that appellant intended to kill constituted statements of objective facts that were not barred by Evidence Codesection 1150. (CT 11:2419-2426.) He also asserted that the exclusion of the juror declarations would violate appellant’s Fifth, Eighth, and Fourteenth Amendmentrights. (CT 11:2426- 2429.) Lastly, he argued that the jury’s failure to deliberate on or find an essential element of the torture-murder special circumstance required a new trial, either on nonstatutory grounds or due to jury misconduct. (CT 11:2429-2434.) Arguing that Evidence Codesection 1150 barred considerationof the evidence upon which appellant relied and that the jury committed no misconduct, the prosecution opposed the motion for a new trial. (CT 11:2455-2483.) The trial court held argument on the new-trial motion. (RT 81:9502- 9549.) In a written ruling, the trial court denied the motion for a newtrial. Deemingthe absence of discussion or a jury finding not to be objectively verifiable events subject to corroboration, the court ruled that Evidence Codesection 1150 barred the admission ofthe declarations proffered in support of appellant’s new-trial motion. The court also determined that -158- appellant’s rights to due process anda fair trial did not require a constitutional override to Evidence Codesection 1150’s bar.*’ Because the ~ court ruled that the declarations were inadmissible, the court found no issue of fact necessitating an evidentiary hearing and thereby denied the motion for new trial. (CT 11:2510-2513.) B. The Trial Court Erred In Denying Appellant’s Motion For A New Trial The denial of appellant’s motion for a new special circumstance trial was error. Although this Court typically reviews a ruling on a new-trial motion for an abuse of discretion (People v. Coffman (2004) 34 Cal.4th 1, 128; People v. Navarette (2003) 30 Cal.4th 458, 526), the denial of a new- trial motion based on a jury’s dereliction of its duties is reviewed de novo. (See People v. Wisely (1990) 224 Cal.App.3d 939, 947.) Basing its denial of appellant’s new-trial motion on an erroneousruling that appellant lacked competent evidence in support of the motion,”thetrial court erred by denying the motion.” °7 The court based its conclusion on the shortcomingsit perceived in the declarations. The court, however, did not consider appellant’s right to present evidenceofthe jurors’ statementsto the trial court that the jury concludedthat appellant did not intend to kill Genny, though that evidence presented noneofthe flaws that the court perceived in the declarations. (CT 11:2510-2513.) °8 Of course, the party moving for a new trial must present admissible evidence to support the motion. (People v. Jenkins (2000) 22 Cal.4th 900, 1046.) °° Tf this Court does not review de novothe denial of the motion for a newtrial, this Court should find that the trial court abused its discretion. (See ante, at p. 50 [trial court lacked discretion to commit legal error].) -159- 1. Evidence Code Section 1150 Did Not Bar Consideration of Statements in Jurors’ Declarations That the Jury Did Not Deliberate on or Find the Intent-to-Kill Elementof the Torture-Murder Special Circumstance, or of Jurors’ Statements to the Trial Court That the Jury Determined That Appellant Had Not Intendedto Kill Genny Thetrial court erred in ruling that Section 1150 rendered inadmissible the pertinent portions of the juror declarations appellant submitted in support of his motion for a new trial. Jurors’ statements regarding whetherthe jury analyzed or found whether appellant had intendedto kill Genny, an essential element of the torture-murder special circumstance, described objectively ascertainable events that were subject to corroboration. The statements were therefore admissible under Evidence Codesection 1150. Evidence Codesection 1150 creates a dichotomy between objectively ascertainable overt acts and individual jurors’ subjective reasoning processes. (People v. Steele (2002) 27 Cal.4th 1230, 1260-1261.) “{JJurors maytestify to ‘overt acts’ — that is, such statements, conduct, conditions, or events as are ‘open to sight, hearing, and the other senses and thus subject to corroboration’ — but may nottestify to ‘the subjective reasoning processesofthe individual juror....”” (In re Stankewitz (1985) 40 Cal.3d 391, 398, quoting People v. Hutchinson (1969) 71 Cal.2d 342, 349- 350.) The absence of deliberations on the intent-to-kill element was an 6° Appellant does not contend that the declarations were admissible in their entirety. -160- objectively ascertainable overt act subject to corroboration. The jurors were able to verify whether the jury discussed or analyzed whether appellant had intendedto kill Genny. Statements made by jurors during deliberations are admissible under Evidence Code section 1150. Un re Stankewitz, supra, 40 Cal.3d at p. 398.) Likewise, statements not made and topics not discussed are similarly verifiable. Whether the jury engaged in deliberations on an essential element of a special circumstanceis not an individual juror’s subjective reasoning process that Evidence Code section 1150 bars. For these reasons in People v. Ramos (2004) 34 Cal.4th 494, 518, fn. 7, this Court held that the absence of discussion during jury deliberations is indeed admissible under Evidence Code section 1150. This Court thereby rejected the proposition that the absence of an event was inadmissible under section 1150; that premise undergirdedthetrial court’s exclusion of the contents of the juror declarations that appellant submitted in support of his motion for a newtrial. This Court’s holding in Ramos requires the admission ofjurors’ statements that the jury did not deliberate on or separately analyze whether appellanthad intendedto kill Genny.” Likewise, evidence that jurors failed to separately find whether appellant had intended to kill Genny, and thereby violated the trial court’s instructions that it could not find true the special circumstance without 6! Tt is immaterial that appellant soughtto use the absence of discussion to impeach a verdict and the prosecution in Ramos used the absence of discussion to rehabilitate a verdict. The text of Evidence Code section 1150 provides for a single standard for any “inquiry asto the validity of a verdict” regardless of whether the party proffering the evidence seeks to impeach or rehabilitate a verdict. (Evid. Code, § 1150.) This Court has applied the evidentiary provision to bar evidence seeking to rehabilitate a verdict through evidence ofjurors’ subjective thought processes. (See Jn re Stankewitz, supra, 40 Cal.3d at pp. 402-403.) -161- unanimously finding that each elementofthe special circumstance had been proven beyond a reasonable doubt, was admissible under Evidence Code section 1150. The finding of an essential element of the torture-murder special circumstanceis an overt act subject to corroboration, and the failure to make sucha findingis similarly verifiable. Because the jury must determine whether the prosecution has proven every essential element beyond a reasonable doubt (United States v. Gaudin (1995) 515 U.S. 506, 510), the finding of whether an essential element has been provenis an overt act subject to corroboration. It is something to whichall twelve deliberating jurors must agree. The determination of such an agreement constitutes an overt act distinct from the subjective thought processes of individualjurors that Evidence Code section 1150 renders inadmissible. Section 1150 bars evidence of a juror’s subjective thoughts, such as a juror’s interpretation of instructions or the effect that an item of evidence had on a juror’s views of a case. (People v. Steele, supra, 27 Cal.4th at p. 1261.) A juror’s thought processes are internal and cannot be corroborated or verified. The jury as a whole making finding that it was required to make, on the other hand, is an explicit act. Determining whether the jury has made such a finding does not require discerning an individualjuror’s thoughts; rather, it requires reviewing the statements and votes — both overt acts — made by the jury during deliberations. Whetherthe jury has found an element of an offense is something ® This Court in People v. Romero (1982) 31 Cal.3d 685 did not consider whetherjury findings on elements of crimes constitute overt acts. Rather, the Court narrowed the admissibility ofjurors’ statements under Evidence Code section 1150 to evidence of improperinfluenceson the jury. (Id. at p. 690.) In People v. Stankewitz, supra, 49 Cal.3d at pp. 397-398, this Court eliminated that limit on admissibility. -162- that can be, and often is, recorded as a special finding on a hybrid verdict form. (See, e.g., People v. Farmer (1989) 47 Cal.3d 888, 919-920.) A jury finding of an essential element can be reducedto a special finding because it is an overt fact subject to corroboration. In contrast, a juror’s thought processes, such as how convincing he or she found an expert witness’s testimony or the impact arguably cumulative evidence had on his or her determination of the perpetrator’s identity, typically cannot be recorded as a special finding. Even where a juror’s subjective thought processes can be reducedto a yes or no question, such as whether the juror believed a specific witness was credible, placing that information on a verdict form would be inappropriate and unduly interfere with the jury’s deliberative process. If an item in a juror declaration can sensibly be madeinto a special finding on a hybrid verdict form, it should be admissible under Evidence Codesection 1150. An appropriate subject for a special finding would constitute an admissible overt act, rather than an inadmissible subjective thought process. That whether the jury found the intent-to-kill element of the torture-murder special circumstance could have properly been made a special finding accompanyingthe special-circumstance verdict demonstrates that statements in jurors’ declarations regarding whether such a finding was madedescribed an overt act. Thus,jurors’ statements that the jury did not find, or did not separately find, whether appellant had intended to kill Genny were admissible under Evidence Code section 1150. Thetrial court erred in ruling that every aspect of the juror declarations was inadmissible. The jurors’ statements in the declarations that the jury found the torture-murder special circumstance on the presence oftorture alone were -163- admissible for a limited purpose. The statements could not have been used to show that the jurors misunderstood the instructions, becausethat inference would have implicated the jurors’ subjective thought processes. (See People v. Steele, supra, 27 Cal.4th at p. 1261.) Nevertheless,the statements could have been used to show that the jury did not find the intent-to-kill element. For the reasons described above, statements that the jury found fewerthan all of the essential elements concerned overt acts that were admissible pursuant to Evidence Code section 1150. Likewise, two jurors’ statements to the trial court, made immediately after the trial’s conclusion, that the jury did not believe that appellant had possessed an intent to kill, were admissible under Evidence Code section 1150. Their statements constituted evidenceofajury finding that appellant had not intended to kill Genny. The statements also showed that the jury did not find that appellant had intended to kill her. Because jury findings on an essential elementare overt acts admissible under Evidence Code section 1150, the evidentiary provision did not render the jurors’ statements to the trial court inadmissible. | Accordingly, the jurors’ statements regarding the jury’s failure to deliberate or find the intent-to-kill element were not barred by Evidence Code section 1150. Thetrial court erred in ruling that appellant did not present admissible evidence to support his motion for a new trial and thereby denying appellant’s motion on that basis. 2. Even If This Court Construes the Jurors’ Statements to Concern Their Subjective Thought Processes, Evidence Code Section 1150 Should Not Renderthe Jurors’ Statements to the Court or the Subsequently Obtained Juror Declarations Inadmissible Assuming arguendothat this Court concludesthat the jurors’ -164- statements pertain to their subjective thought processes, this Court should nevertheless determine that the statements were admissible. The policies underlying the evidentiary provision would not be advanced by excluding the evidence, and countervailing policies militate that the evidence be admissible. This Court haslisted three rationales for Evidence Code section 1150 and its common-law predecessor: to “prevent instability of verdicts, fraud, and harassmentofjurors.” (Kollert v. Cundiff(1958) 50 Cal.2d 768, 773, overruled on other grounds by People v. Hutchinson, supra, 71 Cal.2d 342.) The United Supreme Court hasarticulated similar rationales. (See McDonald v. Pless (1915) 238 U.S. 264, 267-268, quoted in Tannerv. United States (1987) 483 U.S. 107, 119-120.) These rationales do not justify the exclusionof the jurors’ statements in this case. Barring the admission into evidence of the two jurors’ statements to the trial court regarding the jury finding that appellant had not intended to kill Genny would not prevent juror harassment or fraud. In responseto the court’s invitation to jurors that they could speak with the court or counsel immediately after the trial, Seated Juror Numbers 6 and 12 voluntarily met with the trial court on their own initiative. Moments earlier, the court had warned them that the statements they make to counsel could wind up being presented in court. The court asked them individually how the jury had analyzed whether appellant had intended to kill Genny. Each juror’s responsethat the jury concludedthat appellant had lacked that intent came in response to the court’s open-ended question. The court did not ask a question that could have confusedor tricked the jurors. Nor did the court pose a question that was designedto elicit a response that would have undermined the special-circumstance verdict. Rather, a neutral arbiter -165- asked a neutral question. Thepossibility of fraud is further nullified because the statements regarding whetherthe jury found that appellant had possessedthe intent to kill can be corroborated or refuted by the jurors themselves. Moreover, under these circumstances, the statements to the trial court appearreliable and trustworthy. Deemingthe jurors’ responses inadmissible under a mechanical application of Evidence Code section 1150 _ would not prevent juror harassmentor fraud. Furthermore, excluding the jurors’ statementsto thetrial court does not sufficiently support the policy ofpreserving the stability ofjury verdicts. The court’s conversations with the jurors occurred immediately after the trial ended. Those conversations could hardly be more dissimilar to a situation in which counsel speaks to jurors, whose memories have faded, years or decadesafter the trial. The nearnessin timeto the jury deliberations, the open-endednessofthe trial court’s question, and the identity of the questioner negated the possibility that an advocate would try to fill in the gaps in jurors’ memories by spurring jurors to “recall” events in a manner consistent with his or her client’s interests. Moreover,ifthe trial court had admitted the statements and granted the motion for a new special- circumstancetrial, the trial witnesses’ memories would not have grown stale and a retrial would have been feasible, especially given the necessity for a penalty retrial following the jury deadlock at the penalty phase. Similarly, exclusion of the jurors’ statements in the declarations appellant appended to his new-trial motion that the jury did not discuss or find whether appellant had intended to kill Genny would notsufficiently advance the purposes of Evidence Codesection 1150. Barring the statements would not prevent fraud; appellant merely spoketo jurors to corroborate Seated Juror Numbers 6 and 12’s statements to the court. -166- Appellant did not invent allegations that the jury failed to find theintent-to- kill element; that information had already cometo light. In addition, under the unusual circumstancesofthis case, disregarding the jurors’ statements in the declarations would havelittle impact in preventing juror harassment. Defense counsel did not contact the jurors to embark on a fishing expedition “in the hope of discovering something which might invalidate the finding.” (McDonaldv. Pless, supra, 238 U.S.at pp. 267-268, quoted in Tanner v. United States, supra, 483 U.S. at pp. 119-120.) Rather, defense counsel contacted the jurors in response tothe trial court revealing that two jurors had told him that the jury concluded that appellant had not intendedto kill Genny. Consequently, the defense investigation of the jury in this case differs markedly from an investigation that takes place where the trial court provides no indication that the jury failed to find an essential elementof a death-eligibility factor. | Likewise, excluding the statements in the declarations under Evidence Codesection 1150 would not sufficiently advance the state’s interest in preserving the stability ofjury verdicts. As with the statements madeto the trial court, the statements in the juror declarations were made close in timeto the trial. Significantly, appellant obtained the juror declarations shortly after learning about Seated Juror Numbers 6 and 12’s statements to the court and in order to corroborate those statements. Moreover,the stability of few verdicts would be affected by the admission of the jurors’ statements in this case. It is unusual for jurors to inform the court immediately after a trial that they had not found an essential element of the lone special circumstance upon which a defendant’s death-eligibility is based. In addition to the purposes of Evidence Code section 1150 not being -167- met by the exclusion of the evidence, countervailing policy considerations further mandate the admissibility of the jurors’ statements and declarations. Thestate has an interest in ensuring that a special circumstance not be found unless the jury finds each ofits essential elements to be proven beyond a reasonable doubt. As a matter of state law and policy, the torture- murderspecial circumstance should not be found unless the jury has found that the prosecution has proven both a defendant’s intent to kill and intent to torture. This policy is most important and fundamental whenthetorture- murderspecial circumstanceis the lone basis for a defendant’s death- eligibility. In order for the capital sentencing scheme to function properly, a person cannot be found to be death-eligible unless the jury has concluded that all the elements of at least one special circumstance have been proven beyond a reasonable doubt. Just as the state has a policy interest in avoiding wrongful convictions (see Sen. Res. No. 44 (2003-2004 Reg. Sess.) [creating the California Commission on the Fair Administration of Justice]), thestate has a policy interest in not having people sit on death row,andin not executing people, if they are not eligible for a death sentence. There are circumstances in which compelling, competing policies require that the evidentiary bar in Evidence Code section 1150 and similar evidentiary provisions in other jurisdictions give way in order to advance the other policies that would be thwarted by a mechanical application of the evidentiary bar. When a jury bases a verdict on racial or ethnic prejudice, the evidentiary bar on jurors’ deliberative processes cannot shield the illegitimate verdict from scrutiny. (Tapia v. Barker (1984) 160 Cal.App.3d 761, 766-767 [admitting juror declaration regarding another juror’s anti- Mexican prejudice and using that prejudice as primary basis for finding jury -168- misconduct]; Carson v. Polley (Sth Cir. 1982) 689 F.2d 562, 581-582.) A juror’s racial bias, and the impact ofthat bias on the way in whichthe juror perceives the evidence,is a subjective reasoning process of an individual juror that the terms of Evidence Code section 1150 would ordinarily prohibit. (See Gold, Juror Competency to Testify That a Verdict Was the ProductofRacial Bias (1993) 9 St. John’s J. Legal Comment 125, 127- 128.) Yet, the evidence is admissible in this jurisdiction. As with evidence of a juror’s racial prejudice, evidence that the jury did not deliberate on or find an essential elementofthe lone special circumstance that renders a capital defendant death-eligible should also be admissible even if this Court considers the evidenceto entail only ordinarily inadmissible subjective reasoning processes. Significantly, there were no substantial countervailing policy interests demanding the admissibility ofjuror declarations in People v. Romero (1982) 21 Cal.3d 685, 695, the principal precedent on which the trial court relied in this case to exclude the jurors’ statements and declarations. In that case, in which the defendant was charged with two counts of burglary, the jury’s alleged error caused the defendant to be convicted of count two and acquitted of count one, rather than convicted of count one and acquitted of count two. As this Court observed, erroneously convicting a defendant of the wrong second-degree burglary count created no miscarriage ofjustice. (/d. at p. 696.) Getting sentenced to death, and ultimately executed, though the jury found only one of two elements of the lone special circumstance, is an infinitely larger injustice than the one that occurred in Romero. Accordingly, Romero presents no obstacle to not applying Evidence Codesection 1150, as a matter of state law andpolicy, to the jurors’ statements in this case. -169- A policy-based exception to applying Evidence Code section 1150 to the jurors’ statements and declarations regarding the failure to find or deliberate on the intent-to-kill element need not be a per se rule of admissibility with broad application. The balanceof interests betweenthe policies underlying Evidence Code section 1150 and the policies behind ensuring that people are not improperly found to be death-eligible would be markedly different in a run-of-the-mill state habeas petition alleging jury misconduct that was discovered by the defendant over a dozen years following the trial. The trial judge’s role as the person who uncoveredthe jury’s failure in this case to find the intent-to-kill elementis critical to the analysis of this claim. Thetrial court was a neutral arbiter who had no interest in undermining the verdict over which it had presided. Additionally, it was illogical for the court to inquire, sua sponte, into a seemingly proper jury deliberation and then refuse to considerthe results of the inquiry after discovering that the verdict was apparently invalid. For these reasons, this Court could narrowly shape the exception to applying Evidence Code section 1150 to the unusualfacts of this case. 3. The Exclusion of Jurors’ Statements Regarding the Jury Finding, or Lack Thereof, of the Intent-to-Kill Element of the Torture-Murder Special Circumstance under Evidence Code Section 1150 Violated Appellant’s Constitutional Rights Thetrial court’s ruling that jurors’ statements regarding whether the jury deliberated on or found the intent-to-kill element could not be considered in passing upon his motion for a newtrial violated appellant’s Eighth and Fourteenth Amendmentrights, as well as his rights underarticle I, sections 7, 15, and 17 of the state constitution, to a fair trial, due process of law, and a fair andreliable capital-sentencing determination. The United -170- States Supreme Court has recognizedthat “there might be instances in which [the] testimony of the juror could not be excluded without ‘violating the plainest principles ofjustice’ in the gravest and most important cases.” (McDonald v. Pless (1915) 238 U.S. 264, 268-269.) This is such a case. The due process clause of the Fourteenth Amendmentplaceslimits on a state’s power to fashion evidentiary rules. (See Chambersv. Mississippi (1973) 410 U.S. 284, 294.) The exclusion of defense evidence violates a defendant’s constitutional rights if the evidence is favorable and critical to the defense, so long as the state lacks an overriding interest in maintaining the integrity of the adversarial process by excluding the evidence. (See ante, at pp. 64-65.) The jurors’ statements regarding the intent-to-kill element of the torture-murder special circumstance were both favorable and crucial to appellant’s new-trial motion. The jury’s failure to find an essential element was favorable to the defense: It requires granting appellant a newtrial. (See post, at pp. 174-180.) The jurors’ statements werecritical to the defense: Without the statements, appellant lacked competent evidence in support of his motion for a newtrial. The state had no countervailing interest in excluding the evidence. Becausethe jurors’ statements described overt acts that were admissible under Evidence Code section 1150, the state’s interest in maintaining the | evidentiary rule could not have supported the exclusion of the evidence. Moreover, the evidentiary bar did not advancethe state’s interest in preservingthe integrity of the jury system;the Legislature has decided that admitting into evidence jurors’ statements about overt acts protects the jury -171- system.(People v. Hutchinson, supra, 71 Cal.2d at pp. 349-350.) Even if Evidence Code section 1150 renders the jurors’ statements inadmissible, the state’s interest in enforcing the evidentiary bar failed to outweigh appellant’s interest in presenting evidencethat the jury failed to find anessential element ofthe lone death-eligibility factor that the prosecution alleged. Excluding the evidence under Evidence Codesection 1150 did not advancethe state’s interests in applying the evidentiary rule to this case. As explained above(see ante, at pp. 165-167), exclusion of the evidence did not support the purposes of the rule, which are to prevent harassment and fraud and preservethestability ofjury verdicts. In addition, the state’s interest in ensuring the reliability of the capital-sentencing determination coincided with appellant’s interest in the admission ofthe jurors’ statements to the court and juror declarations that corroborated those statements. The capital-sentencing determination cannot be fair and reliable if the jury has not found beyond a reasonable doubt all of the elements of any special circumstance. (See post, at pp. 175-176.) Thestate’s interest in preserving the stability of a jury verdict was limited by the Eighth and Fourteenth Amendments’ requirement that the capital- sentencing verdict be fair, accurate, and reliable; the state had no legitimate interest in upholding a death judgment for which the very basis of appellant’s death-eligibility was not properly and unanimously found by the jury. Moreover, the Eighth and Fourteenth AmendmentandarticleI, 63 Contrary to this Court’s statement in People v. Cudjo, supra, 6 Cal.4that p. 611, a trial court’s misapplication of an evidentiary rule can violate a defendant’s constitutional rights to a defense. (See ante, at pp. 72- 75.) -172- section 17 rightto a fair, accurate, and reliable capital-sentencing determination provided a separate basis for admitting the jurors’ statements to the court and the jurors’ declarations despite the evidentiary bar. (See Jones v. United States (1999) 527 U.S. 373, 416, fn. 19 (dis. opn. by Ginsburg,J.).) For the reasons discussed in the due process analysis, when a jury had not found all of the essential elements of the lone death-eligibility factor, using Evidence Codesection 1150 to let the fundamentally flawed verdict evadescrutiny infringed appellant’s right to a fair, accurate, and reliable capital-sentencing determination. The circumstancesofthis case are rare; jurors rarely inform thetrial judge immediately afterthe trial that they did not make the requisite finding underlying the special-circumstance verdict. Holdingthat appellant’s Eighth and Fourteenth Amendmentrights required the admissibility of the jurors’ statements regarding not finding the intent-to-kill element would not eviscerate Evidence Code section 1150. The constitutional right to the admission ofjuror declarations would apply only to cases in which jurors reveal to the judge immediately after the trial that an essential element underlying the defendant’s death-eligibility was never found proven. The United States Supreme Court decision in Tanner v. United States, supra, 483 U.S.at pp. 126-127, that the Sixth Amendmentdoes not require admission ofjuror affidavits, does not control this case. Appellant’s claim that Evidence Code section 1150 mustyield to his constitutional rights does not arise under the Sixth Amendment. In addition, the Supreme Court based its decision on the availability of other mechanisms for ensuring the defendant’s right to a competent jury. (/d. at p. 127.) Where, as here, the issue is whether the jury found an essential element of a special circumstance,the jurors’ statements to the trial judge and in the declarations -173- comprise the only means for ascertaining whether the jury properly found appellant to be death-eligible. Also, the Supreme Court in Tanner expressed an overriding concern with protecting “jury deliberations from intrusive inquiry.” (/bid.) In this case, however, it was jurors themselves whoapproachedthetrial court after the trial and, on their own accord, | revealed that the jury concluded that appellant lacked the requisite intent to kill. Defense counsel commencedthe investigation in responseto the court stating on the record the contents ofthose conversations. In sum,the state’s interest in enforcing Evidence Code section 1150 must yield to appellant’s rights to due process, a fair trial, and a reliable capital-sentencing determination. The ruling that the jurors’ statements regarding the intent-to-kill finding were inadmissible under Evidence Code section 1150 violated those rights. 4. The Jury’s Failure to Deliberate on or Find the Intent-to-Kill Element of the Torture- MurderSpecial Circumstance Demandsthat Appellant Be Given a New Trial There was competent evidencein the trial record that the jury did not deliberate on or find an essential element ofthe lone special circumstance that rendered appellant eligible for the death penalty. That evidence, if credited, provided groundsfor the trial court to have granted — appellant’s motion for a newtrial. This Court established in People v. Fosselman (1983) 33 Cal.3d 572, 582, that a trial court may grant a motion for a newtrial that is not | based on the grounds enumerated in Penal Code section 1181 if the defendant was deniedhis right to due process of law during thetrial proceedings. (See also People v. Mayorga (1985) 171 Cal.App.3d 929, 940 [“new trials may be ordered for nonstatutory reasons when an error has -174- occurred resulting in the denial of defendant’s right to a fair trial, and the defendant has had noearlier opportunity to raise the issue”].) The jury’s failure to deliberate on or find the intent-to-kill element violated appellant’s due processrights, among other constitutional rights, and entitled appellant to a newtrial on nonstatutory grounds.“ The due process clause of the Fourteenth Amendment andthe jury trial guarantee of the Sixth Amendment“require criminal convictionsto rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” (United States v. Gaudin, supra, 515 U.S. at p. 510, quoted in United Statesv. Booker (2005) _ U.S.__, __, 125 S. Ct. 738, 747, and Apprendi v. New Jersey (2000) 530 U.S. 466, 476-477.) This requirement applies equally to criminal offenses and special circumstances. (See Ring v. Arizona (2002) 536 U.S. 584, 609.) The Eighth Amendmentalso demandsthat every essential element of a special circumstance be found beyond a reasonable doubt. Underthe California capital-sentencing scheme, special circumstances “play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty.” (Zant v. Stephens (1983) 462 U.S. 862, 878.) Under the Eighth Amendment, there is greater constitutional scrutiny of the death-eligibility determination 4 The trial court did not question that a motion for a new trial was a propervehicle for appellant to seek vindication ofhis rights. Especially given the fact that appellant was already facing a penalty retrial, it was vastly more efficient for appellant to seek relief in a new-trial motion than, for the first time, on appeal. (See People v. Fosselman, supra, 33 Cal.3d at p. 582 [explaining justice would be expedited by havingtrial court consider nonstatutory bases for newtrial].) -175- than the assessment of a capital defendant’s deathworthiness. (See Jones v. - United States (1999) 527 U.S. 373, 381 [selection phase requires only “broad inquiry’ into all ‘constitutionally relevant mitigating evidence’”]; Buchanan v. Angelone (1998) 522 U.S. 269, 275-276 [noting different constitutional treatment accordedto eligibility phase as opposed to selection phase].) “It is in regard to the eligibility phase that we have stressed the need for channeling andlimiting the jury’s discretion to ensure that the death penalty is a proportionate punishmentandtherefore not arbitrary or capriciousin its imposition.” (/d. at pp. 275-276.) In orderfor a special circumstance to channel andlimit a jury’s discretion, theEighth Amendment, as well as the Sixth Amendment, demandsthatthe jury find every essential element of that special circumstance. (See Ring v. Arizona, supra, 536 U.S.at p. 609; Zant v. Stephens, supra, 462 U.S.at p. 878.) The Eighth Amendment’s requirement for heightened reliabilityof a capital- sentencing determination further necessitates that every element be proven beyond a reasonable doubt. (See Lankford v. Idaho (1991) 500 U.S. 110, 125, fn. 21 [noting death is different and requires heightenedreliability].) The jury’s failure to find that appellant intended to kill Genny compels that appellant receive a new trial. Because the Sixth, Eighth, and Fourteenth Amendments andarticle I, sections 7, 15, 16, and 17 of the California Constitution require that the jury find beyond a reasonable doubt every elementofthe torture-murderspecial circumstance (see Ringv. Arizona, supra, 536 U.S.at p. 609; Zant v. Stephens, supra, 462 U.S.at p. 878; In re Winship (1970) 397 U.S. 358, 364), merely finding the special circumstancetrue is insufficient; the special-circumstance verdict must be based on a finding that every element has been proven. Moreover,thetrial court instructed the jury that it could not find the torture-murder special -176- circumstancetrue unless it foundall of the elements proven beyond a reasonable doubt. (CT 10:2283; RT 63:8201-8202.) By returning a true verdict on the special circumstance withoutfinding all of the elements proven beyond a reasonable doubt, the jury failed to follow the court’s instructions. Consequently, the verdict is contrary to law and must be vacated. (See People v. Williams (2001) 25 Cal.4th 441, 451, fn. 6.) Letting the verdict stand would render impotent appellant’s right to have the jury find every elementofthe special circumstance and would deprive appellant of a remedy. The record contains uncontradicted evidence, in the two jurors’ post-trial statements to the trial court and declarations submitted in support of appellant’s motion for a newtrial, that the jury did not find beyond a reasonable doubt that appellant intended to kill Genny. That evidence undermines the presumption that the special-circumstance verdict is valid. Although the jury wasinstructed to find the torture-murder special circumstancetrue only if it found every element proven, the jury was instructed that intent to kill was an element of the special circumstance, and the special-circumstance verdict form mentioned the intentional-murder requirement (CT 9:2121; CT 10:2283; RT 63:8201-8202),° the jurors themselves said immediately following andshortly after the trial that the jury did not find that appellant had intended to kill Genny. Consequently, _ the direct evidence from the jurors that the jury failed to makethe intent-to- kill finding precludes an inference from theinstructions, the verdict form,. or the verdict that the jury did find that appellant had harbored an intent to °° Significantly, the verdict form did not specify that appellant himself, rather than Veronica, needed to have had anintent to kill. (CT 9:2121.) -177- kill. The jury declarations the prosecution attachedto its points and authorities opposing appellant’s motion for a newtrial did not state that the jury found the intent-to-kill element. Though several jurors expressed a personalbelief that appellant had intended to kill Genny,”the declarations provided noindication that the jury, acting collectively and unanimously, | found that appellant’s alleged intent to kill had been proven beyond a reasonable doubt. Based on the uncontradicted evidence that the jury failed to find the intent-to-kill element, this Court should, based on the appellate record, reverse the denial of the new-trial motion and vacate the special circumstance and death verdicts. Furthermore, to have complied with appellant’s Sixth, Eighth, and Fourteenth Amendmentrights, plus his rights pursuantto article I, sections 7, 15, 16, and 17 of the California Constitution, the jury must have deliberated on every elementofthe torture-murderspecial circumstance. The requirementthat the jury deliberate on each element flowsdirectly from the rights that each element of the special circumstance be foundto have been proven beyonda reasonable doubt. Deliberations are a necessary precondition for reaching a finding. Before reaching a verdict, the jury has a duty to deliberate. (See People v. Gainer (1977) 19 Cal.3d 835, 856 [endorsing use of CALJIC No. 17.40, which instructs jurors of their duty to deliberate].) Indeed, a juror’s failure to deliberate constitutes misconduct. (People v. Hernandez (2003) 30 Cal.4th 1, 11; People v. Engelman (2002) 28 Cal.4th 436, 442; People v. Cleveland (2001) 25 Cal.4th 466, 485.) This 6° As the prosecutor conceded (RT 81:9532), Evidence Code section 1150 renders inadmissible evidence ofjurors’ personal thoughts regarding whether appellant intended to kill Genny. -178- Court has assumedthat one juror’s failure to deliberate creates a basis for a trial court to grant a new trial. (People v. Jenkins (2000) 22 Cal.4th 900, 1046.) Whenever all twelve jurors do not deliberate on an essential element of the only alleged special circumstance, the jury has abdicatedits duty. A newtrial, before a jury that fulfills its duty to deliberate, constitutes the remedy. Although a jury need notdeliberate for a set period of time to comply with its duty (see United States v. Anderson (9th Cir. 1975) 561 F.2d 1301, 1303), in this case there was an absenceof deliberations regarding the intent-to-kill element. Undoubtedly, not every element of a charged offense or death-eligibility factor must be discussed at length. For example, in a homicide case in which law enforcement officers recovered a dead body,the jury can deliberate in an instant on whether the victim was dead. But, the jury must engage in meaningful deliberations on a contested elementof a death-eligibility factor. The trial court recognized that whether appellant had possessed the intent to kill was the weakest component ofthe prosecution’s caseat the guilt phase. (RT 20:1747; RT 56:6903, 6912.) In order for the jury to find whether the prosecution had proven the intent-to- kill element beyond a reasonable doubt, the jury needed to engage in some discussion of this element. Appellant presented evidence that no such discussion took place. The special-circumstance finding in a capital case must be distinguished from a civil case, for which the Court of Appeal has held that a jury mayretire, immediately vote, and return a verdict without discussing whether the elements of the causes of action have been met. (See Vomaska v. City ofSan Diego (1997) 55 Cal.App.4th 905, 910-913.) In civil case, litigants merely have a state constitutional right to a jury trial. (See Cal. -179- Const. art. I, § 16.) In this capital case, appellant had rights underthe Sixth, Eighth, and Fourteenth Amendmentsfor a jury determination that every essential element of the special circumstance had been proven beyond a reasonable doubt, as well as an Eighth Amendmentrightto a reliable capital-sentencing determination. Because appellant had rights with which civil litigants are not vested, the possible ability of a civil jury to return a verdict without discussion does not permit capital juries to find a defendant death-eligible without discussing whetherall contested elements of a special circumstance have been proven. In addition, the Court of Appeal in Vomaska based the holding that the jury in a civil case need not engage in ~ any discussions on Codeof Civil Procedure section 613, which gives civil juries the option of rendering a verdict in court withoutretiring for deliberations. (See Vomaska v. City ofSan Diego, supra, at p. 910-911.) Ofcourse, if a civil jury need not deliberate at all, logic dictates that it may retire for deliberations and immediately vote and reach a verdict. Though Penal Code section 1128 contains a similar provision, a jury verdict in a capital case rendered without the jury retiring for deliberations would violate a defendant’s constitutional rights, for the reasons discussed above. Accordingly, unlike in Vomaska, the jury deliberations in this case cannot be found permissible under a greater-includes-the-lesser theory. C. The Error WasPrejudicial The jury finding true the torture-murder special circumstance despite not finding, or not deliberating on, the intent-to-kill element cannot be deemed harmless error. Because appellant argues that the jury verdict itself was error, not that an error impacted the jury verdict, harmless-error analysis is not appropriate. A jury verdict not supported by a findingthat all elements have been proven beyonda reasonable doubtis a structural -180- error. Like the erroneous reasonable doubt instruction in Sullivanv. Louisiana (1993) 508 U.S. 275, 279-282, harmless-error analysis cannot be used to hypothesize a special circumstance “verdict that was neverin fact rendered”; thus, the premise of harmlessness analysis is absent. Harmless- error analysis determines whether the jury would have issued the same verdict absent theerror; in this case, the jury never reached a verdict based on a finding that the prosecution had proven every element ofthe torture- murderspecial circumstance beyond a reasonable doubt. (See id. at p. 280.) Moreover, upholding appellant’s death sentence despite the jury’s failure to find the intent-to-kill element would violate appellant’s constitutional right under Ring v. Arizona, supra, 536 U.S.at p. 609, to have the jury, rather than a court, find all the essential elements of a death-eligibility factor. Besides, respondent cannot show that theerror was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) By notfinding the intent-to-kill element to be proven beyond a reasonable doubt, the jury was obliged to return a not-true verdict on the torture-murder special circumstance. Because that was the lone special circumstance alleged, appellant would not have been eligible for the death penalty. Additionally, using the overwhelming-evidencetest the United States Supreme Court articulated in Harrington v. California (1969) 395 U.S. 250, 254, would yield similar results. Several times, the court noted the weaknesses of the prosecution’s case that appellant had possessed an intent to kill. (RT 20:1747; RT 56:6903, 6912.) Appellant’s intent could be inferred only from his conduct, and the evidence that appellant was a major participant in the offense was hotly contested and questionable. Thus, evidence that appellant had intended to kill Genny was not overwhelming. At a minimum,hadthe jury not improperly found the torture-murderspecial -181- circumstance without unanimously finding the intent-to-kill element to have been proven beyond a reasonable doubt, the jury would have hung; the record establishes without contradiction or ambiguity that Jurors Numbers 4, 10, and 12 did not find that appellant had intended to kill Genny. (RT 74:9330-9331; CT 11:2437-2438; CT 13:3038.) In conclusion,the jury’s failure to deliberate on or find the intent-to-kill element of the torture- murder special circumstance was indeedprejudicial. D. Alternatively, This Court Should Remand This Case For A New Determination Of The Motion | For A New Trial If this Court does not vacate the special-circumstance verdict, this Court should, at the very least, vacate the denial of appellant’s motion for a new trial and remandthis case for a new determination of the motion. The trial court based its denial of the motion onits ruling that appellant failed to present admissible evidence in support of the motion. As discussed above, the record on appeal contains evidence that warrants granting appellant a new trial on the torture-murder special circumstance. Although appellant urges this Court to vacate the special circumstance and death verdicts based on this record, appellant alternatively requests a remand. (See Peoplev. Braxton (2004) 34 Cal.4th 798, 818-819 [remanding for determination of new trial motion]; People v. Rodriguez (1986) 42 Cal.3d 730, 794 [same]; People v. Fosselman, supra, 33 Cal.3d at p. 577 [same].) If this Court concludesthat there are unresolved issues of fact regarding whether the jury » failed to deliberate on or find the intent-to-kill element, then this Court should remandthe matter to the superior court for an evidentiary hearing. -182- vil THE ERRONEOUS REMOVALOF PROSPECTIVE JUROR NO. 504 FOR CAUSE AT THE PENALTY RETRIAL VIOLATED APPELLANT’S . CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY AND REQUIRES REVERSAL OF APPELLANT’S DEATH SENTENCE Despite expressing an abstract opposition to capital punishment, Prospective Juror No. 504 consistently affirmed that she was open-minded regarding how appellant should be sentenced, would consider both sentencing options, and would be able to vote for a death verdict. Her willingness to abide by her oath and follow the trial court’s instructions precluded the prosecution from demonstrating that she was not qualified to serve on appellant’s capital jury. The trial court thereby erred by dismissing her for cause from the penalty retrial jury venire; accordingly, appellant’s death sentence must be reversed. A. Facts And Procedural History In her questionnaire, Prospective Juror No. 504, the daughter of a police captain, stated that she was glad that appellant had been convictedat the first trial and expressed her repugnance toward child abuse. (CT 45:10209, 10218-10219.) She wrote that she formerly supported capital punishment, but believed that it should be abolished. She opinedthat the death penalty was not an appropriate punishment becauseit spared perpetrators from havingto reflect on the crimes that they had committed and thatlife imprisonment was the more severe penalty. (CT 45:10222- 10223.) She indicated that she nevertheless would not always vote against the death penalty, would beableto listen to the evidence andinstructions and give honest consideration to both sentencing options, and was open- minded about which sentence appellant should receive. She wrote that -183- sometimesdeath is the lone appropriate punishment. (CT 45:10224.) During the voir dire conducted by the trial court, Prospective Juror No. 504 articulated her mixed feelings about capital punishment: She believed that people who commit horrible crimes deserveto die, but it would not serve society for them to escape having to contemplate their crimes. In addition, she expressed concerns aboutthe irreversibility of death sentences andsaid that her uncle’s murder conviction in the Virgin Islands, which she believes was wrongful, would probably affect her. (RT 87:10646-10648, 10650.) Despite holding these opinions, she affirmedthat she could be objective and would open-mindedly consider both sentencing options. She further explained that, although it would be very unlikely that she would vote for a death verdict, there was a real possibility that she would vote to impose death. (RT 87:10649-10650.) Whenquestioned by defense counsel, Prospective Juror No. 504 avowedthat she was not adamantly opposed to capital punishment despite her uncle’s experience with the criminal justice system. She said that there were somecrimes for which she believed death was an appropriate penalty, there were situations in which she could imposea death sentence, she could be open-minded regarding the appropriate penalty in this case, and she could give honest consideration to both sentencing options. (RT 87:10701- | 10702.) In responseto the prosecutor asking herif there would be capital punishmentif she were governing the state, Prospective Juror No. 504 said that she would subject criminals to medical research. (RT 87:10718.) She also opined that at times death was not an appropriate punishmentfor murderbecause the perpetrators would not suffer thinking about the crimes they had committed, but that some people like Jeffrey Dahmer deserved to -184- die. (RT 87:10719.) She averred that a torture-murder wasthe type of case for which she could vote for a death sentence and that she could compartmentalize her moral opposition to capital punishment from her evaluation of this case. When asked if she could override her moral objection to capital punishment when making a moraldecision regarding whether appellant should live or die, she requested additional information. (RT 87:10720.) She said that she believed that her moral views on drunk driving could preclude her from being objective in a driving under the influence trial, but that she could be objective in this capital case because her loathing of child abuse challenged her moral opposition to the death penalty. (RT 87:10722-10723.) Theprosecutor challenged Prospective Juror No. 504 for cause, and defense counsel vehemently objected. (RT 87:10737.) Thetrial court said that it was struck by the prospective juror’s opposition to the death penalty and belief that criminals should be made subjects in medical experiments. The court ruled that her views substantially impaired her ability to perform her duties as a juror and granted the challenge for cause. (RT 87:10740.) B. Prospective Juror No. 504 Was Death-Qualified; Therefore, The Trial Court’s Dismissal Of Her For Cause Infringed Appellant’s Rights To An Impartial Jury Prospective Juror No. 504 was qualified to serve on appellant’s capital jury at the penalty retrial. Her abstract views on capital punishment and criminal justice would not have precluded her from abiding by her oath or following thetrial court’s instructions. Because the prospective juror said that she was open-minded regarding the sentence appellant should receive, she would fairly consider both sentencing options, and that there wasa real possibility she would vote for a death verdict, the prosecution did -185- not demonstrate that Prospective Juror No. 504 could not be impartial. Consequently, the trial court violated appellant’s rights, under the Sixth and Fourteenth Amendments to the United States Constitutionandarticle I, section 7, 15, 16, and 17 of the California Constitution, to an impartial jury by dismissing her. Thelegal standard for dismissing prospective jurors due to their views on capital punishmentis well settled. “The state may not, in a capital trial, excuseall jurors who express conscientious objections to capital . punishment. Doing so violates the defendant’s Sixth Amendment-based right to an impartial jury and subjects the defendanttotrial by a jury ‘uncommonly willing to condemn a man to die.’” (People v. Hayes (1999) 21 Cal.4th 1211, 1285, quoting Witherspoon v. Illinois (1968) 391 U.S. 510, 521.) “[T]he proper standard for determining when a prospective juror may be excluded for cause because ofhis or her views on capital punishment. . . is whether the juror’s views would ‘prevent or substantially impair the performance ofhis duties as a juror in accordance with his instructions and his oath.’” (Wainwright v. Witt (1985) 469 U.S. 412, 424, quoting Adams v. Texas (1980) 448 U.S. 38, 45; accord, People v. Ghent (1987) 43 Cal.3d 739, 767.) In other words, a prospective juror may not be removed merely because she believes that the death penalty should be abolished; rather, the court can lawfully dismiss her for cause only if her personal opinions on capital punishment would preclude her from abiding by her oath or followingthe trial court’s instructions. The party challenging the prospective juror for cause bears the burden of demonstrating that she is not death-qualified. (See Wainwright v. Witt, supra, 469 U.S. at p. 424.) The | trial court’s dismissal of a prospective juror should be upheld if supported by substantial evidence. (See People v. Schmeck (2005) 37 Cal.4th 240, -186- 261-262.) The prosecution did not meet that burden in this case. To be sure, Prospective Juror No. 504 repeatedly expressed that she believed capital punishment should be abolished. Nevertheless, she consistently asseverated that she was open-minded regarding whether appellant should receivea life or death sentence, would fairly consider both sentencing options, and could return a death verdict. (CT 45:10224; RT 87:10649-10650, 10701-10702, 10720, 10722-10723.) She even told the prosecutor that she could compartmentalize her moral viewsfrom her evaluation ofthis case. (RT 87:10720.) In Lockhart v. McCree (1986) 476 U.S. 162, 174, the United States Supreme Court explained: “It is important to rememberthat notall whoopposethe death penalty are subject to removal for cause in capital cases; those whofirmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as theystate clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” By being willing to follow the trial court’s instructions to weigh the aggravating factors against the mitigating factors and fairly consider both sentencing options, Prospective Juror No. 504 wasable to subvert her views on the death penalty to the rule of law. (See Brownv. Lambert (9th Cir. 2005) 451 F.3d 946, 950 [“excusing a juror for cause in a capital case is unconstitutional, absent evidence that the juror would not follow the law”].) Accordingly, she was death-qualified. Prospective Juror No. 504 wasnot disqualified from serving on appellant’s jury though shestated that it was very unlikely that she would return a death verdict. A high threshold for imposing the death penalty does not provide grounds for challenging a prospective juror for cause so long as those views do not prevent her “from engaging in the weighing process and -187- returning a capital verdict.” (People v. Kaurish (1990) 52 Cal.3d 648, 699.) As explained above, Prospective Juror No. 504 said that she could impose a death sentence, she was open minded regarding the penalty appellant should receive, and there wasa real possibility she could return a death verdict. This Court recently explained that a venireperson like Prospective Juror No. 504 is death-qualified: Kaurish, supra, 52 Cal.3d 648, recognizes that a prospective juror may not be excluded for cause simply becausehis or her conscientious viewsrelating to the death penalty would lead the juror to imposea higher threshold before concluding that the death penalty is appropriate or because such views would makeit very difficult for the juror ever to impose the death penalty. Because the California death penalty sentencing process contemplates that jurors will take into account their own values in determining whether ageravating factors outweigh mitigating factors such that the death penalty is warranted, the circumstance that a juror’s conscientious opinionsor beliefs concerning the death penalty would makeit very difficult for the juror ever to impose the death penalty is not equivalent to a determination that such beliefs will “substantially impair the performanceofhis [or her] duties as a juror” under Witt, supra, 469 U.S. 412.... A juror mightfind it very difficult to vote to impose the death penalty, and yet such a juror’s performancestill would not be substantially impaired under Witt, unless he or she were unwilling or unable to follow the trial court’s instructions by weighing the aggravating and mitigating circumstances of the case and determining whether death is the appropriate penalty under the law. (People v. Stewart (2004) 33 Cal.4th 425, 447[emphasis andalteration in original]; see also, People v. Heard (2003) 31 Cal.4th 946, 959-966 [finding prospective juror was death-qualified although he stated that he probably would vote for life imprisonment in case with mental health mitigation].) Therefore, Prospective Juror No. 504’s statement that it was very unlikely -188- that she would return a death verdict did not substantially impair her from performing her dutiesas a juror. Likewise, Prospective Juror No. 504 was qualified to serve on appellant’s jury although she thought she would probably be affected by the irreversibility of a death sentence and whatshe perceived to be her uncle’s wrongful conviction for murder. The possibility of an irreversible death penalty affecting her penalty retrial deliberations did not render the prospective juror removable for cause. (See Adams v. Texas, supra, 448 US. at pp. 49-51.) The United States Supreme Court explained that “to exclude all jurors who would bein the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to whichheor sheis entitled under the law” because being affected by the possibility that the defendant could be executed is not “equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty.” (d. at p. 50.) In addition, Prospective Juror No. 504 saying she would probably be affected by what she believes was her uncle’s wrongful murder conviction did not substantially impair her from performing her duties as a juror. “Jurors’ views of the evidence . . . are necessarily informedby theirlife experiences.” (Jn re Malone (1996) 12 Cal.4th 935, 963.) “Indeed, lay jurors are expected to bring their individual backgrounds and experiences to bear on the deliberative process.” (People v. Pride (1992) 3 Cal.4th 195, 268; accord, McCleskey v. Kemp (1987) 481 U.S. 279, 311.) Thus, Prospective Juror No. 504’s belief that her uncle’s experiences with the criminal justice system would probably affect her did not substantially impair her from following her oath and thetrial court’s instructions. -189- Lastly, Prospective Juror No. 504’s belief that convicted criminals should become subjects for medical experiments did not hinder her from performing her duties as a juror. There is no indication in the record that this abstract belief would have had any impact whatsoever on her deliberative process. Witherspoon and its progeny makeclear that a prospective juror’s personal beliefs do not disqualify her from serving on a capital case unless those views would prevent or substantially impair her from abiding by her oath and following her instructions. The record lacked evidence suggesting that Prospective Juror No. 504’sbelief that criminals should be subjects for medical experiments was anything more than an isolated abstract opinion. For these reasons,thetrial court’s removal of Prospective Juror No. 504 was not supported by substantial evidence. Therefore, the trial court violated appellant’s constitutional rights to an impartial jury. C. The Death Judgment Must Be Vacated The erroneous removalofa life-leaning prospective juror whom the prosecution had challenged for cause under Witherspoon-Witt cannot be harmless. (See Gray v. Mississippi (1987) 481 U.S. 648, 668; People v. Ashmus (1991) 54 Cal.3d 932, 962.) Becausethetrial court erroneously ruled that Prospective Juror No. 504 was not death-qualified and dismissed her for cause, appellant’s death sentence must be reversed. -190- Vill APPELLANT DID NOT VALIDLY WAIVE HIS RIGHT TO BE PRESENTAT EITHER THE INTRODUCTORY PROCEEDINGS WITH THE JURY VENIRES AT THE FIRST TRIAL AND THE PENALTY RETRIAL OR THE HARDSHIP VOIR DIRE AT THE FIRST TRIAL At the outset of both trials, the court forced appellant to make an untenable choice: Appellant had to either forgo his right to be presentat a portion ofhis trial, or he would be shackled in full view ofall of the prospective jurors. Becausethe trial court forcedappellantto relinquish one ofhis constitutional rights, appellant’s purported waivers of his Sixth and Fourteenth Amendmentrights to be present was invalid. Moreover, the purported waivers were not written and thus violated Penal Code section 977, subdivision (b)(1). Furthermore, appellant made no personal waiver, of any sort, of his right to be presentat the first trial’s hardship voir dire; that further violated his constitutional and state-law rights. A. Facts And Procedural History Whenboth trials commenced, the initial proceedings took place in the jury lounge because the courtroom could not accommodate all of the prospective jurors who had been summonedto comprise the jury venire. Though one or two extra marshals would be present in the jury lounge, the court required that appellant be shackled if he were to appearat the proceedingsin the jury lounge. Prior to thefirst trial, the court stated that most defendants relinquish their presence right so the prospective jurors do not see them in handcuffs and waist chains. (RT 35:3723-3725.) Before both trials, appellant surrendered his right to be present at those proceedings,rather than haveall of the prospective jurors see him shackled. (RT 35:3724-3725; RT 83:983 1-9832.) At those proceedings, the court and -191- counsel introduced themselvesto the prospective jurors, and hardship and substantive questionnaires were disseminated. The court made introductory remarks. (RT 38:4011-4043; RT 84:9834-9860.) At the first trial, those remarksincluded an orientation to the case; an explanation ofthetrial process; directions forfilling out the jury questionnaire; and instructions on matters including reading the murder charge and special circumstance alleged in the information, explaining that the prosecution bears the burden of proof, defining reasonable doubt, stating that the charges themselves do not constitute evidence, and admonishing the prospective jurors with respect to their conduct.’ (RT 38:4011-4043.) The court made analogous remarksat the outset of the penalty retrial that weretailored to that proceeding: The court instructed the prospective jurors about their duties and told them that at a previous trial appellant had been convicted of first degree murderandthat the torture-murder special circumstance had been found. (RT 84:9834-9860.) Prior to the first trial, at defense counsel’s request, the court did not order that appellant be brought from the jail to the courthouse until the first day of substantive voir dire. (RT 37:4009.) Accordingly, appellant was absent from both sessions of hardship voir dire for the first trial, which took place in the courtroom.® (RT 38:4044-RT 39:4156.) Appellant was also absent from the court’s introductory remarks to the prospective jurors who 67 Atthefirst trial, the court said that appellant was not present for these proceedings, but would be presentat future hearings. The court gave no explanation for appellant’s absence. (RT 38:4025.) The court did not mention appellant’s absenceat the penalty retrial. (RT 84:9834-9860.) 68 Appellant was present for the hardship voir dire at the penalty retrial. (RT 84:9864-9919.) -192- requested, but did not receive, hardship exemptionsforthefirst trial.” (RT 39:4157-4179.) Oneofthe seated jurors unsuccessfully sought a hardship dismissal and waspresent for these proceedings. (RT 38:4124-4128.) No personal waiver was soughtor received from appellant regarding these proceedings that took place in the courtroom. B. Appellant’s Purported Waivers Of His Presence At The Proceedings In The Jury Lounge Were Invalid Appellant did not validly waive his right to be present at the proceedingsat the outset of bothtrials that occurred in the jury lounge because the purported waivers were the product of an unlawful choice that the court mandated appellant to make. The court required appellantto relinquish either his right to be present or his right not to be shackled. The byproductofthat constitutional error is that appellant’s purported waiver of his presence wasnotvalid. A criminal defendant cannot be forced to choose between two distinct constitutional rights. (Simmons v. United States (1968) 390 U.S. 377, 394; People v. Wilkins (1990) 225 Cal.App.3d 299, 307-308.) A defendant may have to choose between constitutional rights that are inherently interrelated and cannot be exercised simultaneously. (MeGautha v. California (1971) 402 U.S. 183, 213.) For example, a defendant must choose whetherto invokehis right to testify or retain the privilege against self-incrimination, or whether to exercise either his right to counselor his right to self-representation. In contrast, the right to be present and the right not to be shackled are not the converse of one another; consequently, the trial court could not require appellant to choose between those rights. (See, °° These remarks were similar to those given to the jurors who did not request hardship dismissals. (RT 38:4022-4043; RT 39:4157-4179.) -193- e.g., Howard v. Walker (2nd Cir. 2005) 406 F.3d 114, 129-130 [defendant cannot be forced to choose between right to cross-examine witness and right to exclude co-conspirator’s unreliable hearsay confession]; United States v. Scott (11th Cir. 1990) 909 F.2d 488, 492-494 [defendant cannot be forced to choose between right to counsel andrightto testify].) Asthe trial court acknowledged, the Sixth and Fourteenth Amendments andarticle I, sections 7 and 15 vested appellant with the right to be present at the proceedings that took place at the jury lounge. (RT 35:3724-3725; see Kentucky v. Stincer (1987) 482 U.S. 730, 745.) The initial proceedings constituted a critical stage of bothtrials. The trial court instructed the jury at both proceedings. Though given to prospective jurors during the jury-selection process, these were jury instructions. (See People v. Frye (1998) 18 Cal.4th 894, 957; People v. Johnson (2004) 115 Cal.App.4th 1169, 1172.) When a court instructs a jury,it is a critical stage of the trial at which the defendant has a right to be present. (Peoplev. Dagnino (1978) 80 Cal.App.3d 981, 985-988; United States v. Rosales- Rodriguez (9th Cir. 2002) 289 F.3d 1106, 1110.) Furthermore, the proceedingsin the jury lounge werea critical stage because the court communicated extensively with the jury. (See Rogers v. United States (1975) 422 U.S. 35, 39 [explaining defendant hadright to be present when court communicated with jury], citing Shields v. United States (1927) 273 U.S. 583, 588-589.) Moreover, the commencementofboth trials was a. critical stage becausethetrial judge andtrial attorneys introduced themselves and this case to the jury. At these proceedings, the prospective jurors comprising each jury venire formedtheir first impressions of the case and the people involved with the trial. Appellant’s absence, which was unexplained and juxtaposed against the serious charges he faced,likely -194- impacted the jury’s view of him. Appellant also had a due process right, guaranteed by the Fourteenth Amendmentandarticle I, sections 7 and 15, not to be shackled. | (See Deck v. Missouri (2005) 522 U.S. 622, 626-633 [right not to be shackled]; see also, Spain v. Rushen (9th Cir. 1989) 883 F.2d 712, 720-721 [discussing pernicious impact of shackling].) Although shacklingis constitutionally permitted upon a showing of case-specific special circumstances “related to the defendant ontrial” (Deck v. Missouri, supra, 522 U.S.at p. 633), the prerequisite for permissible shackling did not exist in this case. As the court acknowledged, there was no reasonto believe that appellant, a model prisoner, posed a security risk. (RT 35:3725.) A general concern about security comprised the lone basis for the court’s generic requirementthat appellant be shackled for the initial proceedings at each trial. Appellant’s due processrights thus forbade the court from shackling appellant to compensate for the jury room’s inferior security. Moreover, this Court has long concludedthat shackling is permissible only if the defendant’s actions — not the venue’s characteristics — create a “manifest need” for using restraints and thetrial court makes an on-the-record determination that the defendant’s nonconforming behavior necessitates shackling. (People v. Duran (1976) 16 Cal.3d 282, 290-291; see also, People v. Cox (1991) 53 Cal.3d 618, 651 [explaining what constitutes “manifest need”); People v. Harrington (1871) 42 Cal. 165, 168- 169; Pen. Code, § 688.) In this case, there was neither a manifest need for shackling nor an on-the-record determination that appellant’s actions required restraining him. Accordingly, appellant had a state-law entitlement not to be shackled. The violation of appellant’s state-law guarantee to be free from shackling also infringed appellant’s due process rights under the -195- Fourteenth Amendmentandarticle I, sections 7 and 15. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346.) Thus, appellant had constitutional rights to be present and not to be shackled at the proceedingsin the jury lounge. Thetrial court violated appellant’s constitutional rights by requiring him to choose between those rights. There wasno valid basis for forcing appellant to cede one ofthem. As a result, appellant’s purported waiversofhis right to be present were invalid. In addition, the purported waivers violated Penal Code section 977. Appellant had a statutory right to be present that could be waived only in writing. (See Pen. Code, § 977, subd. (b)(1).) Appellant’s purported oral waivers failed to meet the written-waiverrequirement. C. Appellant Did Not Waive His Presence At The Hardship Voir Dire For TheFirst Trial The constitutional and statutory right to be present cannot be waived by proxy. Rather, a valid waiver of that right must be personal, knowing, intelligent, and voluntary. (Johnson v. Zerbst (1938) 304 U.S. 458, 464; People v. Davis (2005) 36 Cal.4th 510, 531-532; United States v. Gordon (D.C. Cir. 1987) 829 F.2d 119, 125-126.) There is no indication on the record that appellant understood that he was waiving his right to be present at the hardship voir dire, which took place in the courtroom, where appellant would not be shackled if present. Nor wasthere any indication that appellant understood the consequencesof a presence waiverfor those proceedings. Further, there was no statutorily required written waiver. Therefore, the court violated appellant’s presence right by conducting hardship voir dire in appellant’s absence. -196- D. Appellant’s Absences Were Prejudicial The state-law and federal-constitutional errors flowing from appellant’s absence at his capital trials were not harmless. During the hardship voir dire proceedingsatthefirst trial, held in appellant’s absence, the trial court excused 24 prospective jurors. Furthermore, at bothtrials appellant was missing from the proceedings at which the prospective jurors were introduced to the case, the judge, andtrial attorneys. Appellant’s absence was unexplained and, at the penalty retrial, unmentioned. At the first trial, the jury learned that the state charged appellant with first degree murder and alleged the torture-murder special circumstance. At the penalty trial, the jury learned that appellant had been convicted of that offense and that the special circumstance had been found. Appellant’s absence wasthus coupled with the severity of the allegations, conviction, and special- circumstance finding. The prospective jurors inevitably came away from the opening proceedings with the impression that appellant was accused of doing, or had done,horrible things and that appellant callously did not bother to show upat his owncapital trial. Although appellant’s presenceat subsequent proceedings mitigated this misperception, the prospective jurors’ first impressions of appellant remained important. (See Lakamp, Deliberating Juror Predeliberation Discussions: Should California Follow the Arizona Model? (1998) 45 UCLA L.Rev. 845, 866, fn. 82 [explaining primacy effect and its impact on jurors]; Kassin & Wrightsman, The American Jury on Trial: Psychological Perspectives (1988) pp. 132-135.) For these reasons, it is reasonably probable that the jury would not have convicted appellant of first degree murder or found the torture-murder special circumstance if appellant had been present, without shackles, throughoutthefirst trial. (See People v. Watson (1956) 46 Cal.2d 818, -197- 836.) This was a close case, and the evidence against appellant was not overwhelming. (See ante, at pp. 85-88.) Likewise, it is reasonably possible that the jury at the penalty retrial would not have sentenced appellant to death if appellant had attended all of the proceedings. (See Peoplev. Brown (1988) 46 Cal.3d 432, 448.) At a minimum,respondent cannot demonstrate that the errors were harmless beyonda reasonable doubt. (See Chapmanv. California (1967) 386 U.S. 18, 24.) It would be speculative for this Court to conclude that the jurors who sat on appellant’s trials would not have perceived appellant differently if he had been presentat the proceedings at the commencementofboth trials. (See Wade v. United States (D.C. Cir. 1971) 441 F.2d 1046, 1050-1051 [reversing convictions for violation of defendant’s right to be present during rereading of certain jury instructions and during reading ofAllen charge because holding “his absence harmless would be too speculative”].) Accordingly, the conviction, special circumstance, and death sentence must be vacated. -198- IX THE TRIAL COURT’S ADMISSION OF VIDEOTAPESOF IVAN GONZALES,JR.’S PRELIMINARY HEARING TESTIMONY AT APPELLANT’S TRIAL WAS ERRONEOUS AND INFRINGED APPELLANT’S CONFRONTATION- CLAUSE RIGHTS Three-and-a-half months after Genny’s death, appellant’s oldest child, Ivan Gonzales,Jr., testified at the preliminary hearing. Ivan Jr., who waseight years old, was living in a confidential foster home. Defense counsel lacked access to Ivan Jr., did not know where or with whom he was living, and was unaware that he was experiencing hallucinations, that Ivan Jr.’s recollection and testimony had been improperly influenced, or that his foster mother was concerned abouthis penchantfor lying. Lacking crucial information, appellant had no opportunity to cross-examine IvanJr. effectively at the preliminary hearing. Priorto trial, the trial court declared Ivan Jr. unavailable to testify, due to the trauma that he would experience from testifying against his parents at their capital trials. Nonetheless, the trial court admitted into evidence,at the guilt phase of appellant’s trial, the videotapesofIvan Jr.’s preliminary hearing testimony. Basedin part on his oldest child’s preliminary hearing testimony, appellant was convicted of first degree murder, and the jury found the torture-murderspecial circumstance. The admission of the videotaped testimony violated state law, appellant’s confrontation-clause rights, and appellant’s rights to a fair trial anda fair, accurate, and reliable capital-sentencing determination, and requires vacating the conviction, special circumstance, and death judgment. A. Facts And Procedural History On July 22, 1995, the morning after Genny’s death, the police brought appellant’s children to the Polinsky Center, a receiving homefor -199- children whoare placed into protective custody.. (RT 56:6980-6983; RT 58:7306.) Between that time and the preliminary hearing, Ivan Jr. was placed in two separate foster homes. (RT 58:7306-7311.) The foster home placements were confidential, and appellant and his counsel had no access to Ivan Jr. or the people living in Ivan Jr.’s foster homes duringthis time. (RT 17:1498; RT 48:5753.) In August 1995, Ivan Jr. began attending weekly therapy sessions. (RT 22:2034.) His therapist, Edna Lyons, concludedthat he suffered from depression and post-traumatic stress disorder. (RT 22:2018.) In October 1995, Ivan Jr.’s foster mother discussed with Lyons her concerns about Ivan Jr.’s proclivity to lie. (CT 6:1446.) On November7, 1995, the day before Ivan Jr. testified at the preliminary hearing, Ivan Jr. said to Lyonsthat he © saw double and believed that he had seen his soul. (CT 6:1447.) Roland Simoncini, appellant’s children’s attorney, concluded that Ivan Jr.’s foster mother was inappropriately asking Ivan Jr. questions about this case, in violation of a court order. Believing that the foster mother violated a court order barring her from asking Ivan Jr. those questions, the judge assignedto the children’s dependency case again ordered the foster mothernot to ask Ivan Jr. questions. (RT 58:7342-7351; RT 60:7570-7576, 7763-7767.) Appellant and his counsel had no accessto this information at the time of the preliminary hearing. After extensive litigation, between July 1996 and February 1997 appellant gained piecemeal access to Ivan Jr.’s therapy records. (CT 5:1197; CT 6:1402-1407; CT 12:2840-2842, 2858; CT 13:2872, 2879-2881; RT 7:737; RT 22:1993, 2087-2089.) The municipal court presided overthe preliminary hearing on November7 and 8, 1995. Expressing generalized concerns about the -200- intimidation of child witnesses, the municipal court granted the prosecution’s motion for a protective seating arrangement. Asa result of this order, when Ivan Jr. testified, he was seated so that he faced away from appellant and Veronica. (PX 1:9-10.) After Ivan Jr. testified at the preliminary hearing, he continued to report to his therapist that he was experiencing hallucinations, illusions, or lapses in memory. On January 4, 1996,Ivan Jr. told his therapist that he saw double one to two times per day. In addition, he expressed concerns over the adequacy of his memory andsaid that sometimes he could not remember what had happened on the previous day. (CT 6:1448.) In April 1996, he informedhis therapist that on two occasions he saw a bright orange light surrounded by white and believedthat this light was Genny. (CT 6:1386.) Dr. Charles Marsh evaluated Ivan Jr. on August 2, 1996 and determined that Ivan Jr. had post-traumatic stress disorder. (CT 6:1390; RT 22:1896.) In a subsequent evaluation, Dr. Marsh determinedthat Ivan Jr. had manifestations ofclinical depression. (RT 22:1923.) For several months, appellant and Veronica Gonzales moved in the dependencycourt for access to Ivan Jr. in order to interview him. (CT 1:64- 66, 100-104; RT 20:1620.) The dependency court conditioned access to Ivan Jr. on those interviews not being detrimentalto Ivan Jr.’s health. (CT 1:64-66, 100-104.) After finding that interviews would harm IvanJr., the dependencycourt barred the prosecutor, appellant, and Veronica from contacting Ivan Jr. (CT 6:1437; RT 20:1620.) The prosecution subpoenaedIvan Jr. and Michael Gonzales, -201- Veronica and appellant’s second-oldestchild, to testify at trial.” The children moved to quash the subpoenas. (CT 6:1370-1401.) After holding extensive hearings on the motion,thetrial court, pursuant to Evidence Code section 240 and the court’s purported inherent authority to protect children from clear and imminent harm, quashed the subpoenasanddeclared Ivan Jr. and Michael unavailable to testify at trial. (RT 25:2582-2591.) The prosecution movedto introduceattrial the videotapes of Ivan Jr.’s preliminary hearing testimony. (CT 6:1251-1263.) Appellant objected to the admission of the preliminary hearing testimony onthe basisthat appellant did not have a meaningful opportunity for an effective cross- examination at the preliminary hearing, that the court’s inherent authority to protect minors should bar admission ofthe prior testimony, and that Ivan Jr. was not competentto testify at the preliminary hearing. (CT 6:1428-1455.) Thetrial court rejected those contentions and ruled that the preliminary hearing testimony was admissible. (RT 29:3247-3253; RT 48:5760.) During the guilt phase of appellant’s trial, the videotapes of Ivan Jr.’s preliminary hearing testimony were played anda transcript was provided to the jury.” (RT 55:6885, 6891-6892.) The court also admitted prior law enforcementinterviews of Ivan Jr., which contained prior consistent and prior inconsistent statements. (RT 55:8655-6865; RT 56:6878-6879, 6884- 6885.) B. The Trial Court Erred By Admitting Ivan Jr.’s Preliminary Hearing Testimony Into Evidence Thetrial court’s admission of Ivan Jr.’s videotaped preliminary 7° Michael wasnotcalled to testify at the preliminary hearing. 7| The videotape wasnot introduced at the penalty retrial. (RT 90:11204.) -202- hearing testimony waserroneousin several respects. First, because appellant never had a meaningful opportunity to cross-examine Ivan Jr. effectively, the testimony was inadmissible under Evidence Code section 1291. Second,the trial court erred in using its asserted inherent authority to protect children from harm to quash Ivan Jr.’s subpoena but permit his preliminary hearing testimony to be introduced at appellant’s trial. Third, the trial court erroneously concluded that Ivan Jr. was competentto testify at the preliminary hearing. 1. Evidence Code Section 1291 Barred the Admission of Ivan Jr.’s Preliminary Hearing Testimony Ivan Jr.’s preliminary hearing testimony was inadmissible under Evidence Codesection 1291. That evidentiary rule permits the admission of former testimonyattrial if the witness is unavailable at trial and the former testimony is offered against a party that had a meaningful opportunity for effective cross-examination at the prior proceeding. | (People v. Brock (1985) 38 Cal.3d 180, 190; People v. Cloyd (1997) 54 Cal.App.4th 1402, 1409; Evid. Code, § 1291, subd. (a)(2).) Accordingly, whenthe party against whom the former testimony is offered had a similar interest and motive to challenge the witness’s credibility at the prior proceeding, the former testimony would be admissible only if there was a meaningful opportunity to cross-examine the witness effectively at the prior proceeding. Appellant lacked such an opportunity during Ivan Jr.’s preliminary hearing testimonyin this case. Appellant’s inability to access Ivan Jr. or information about IvanJr. between the night of Genny’s death and the preliminary hearing prevented appellant from having a meaningful opportunity to cross-examineIvanJr. effectively at the preliminary hearing. Ivan Jr. had been placed in -203- confidential foster homes; consequently, appellant’s counsel lacked access to him, the people with whom hehadlived, and the people in whom he had confided. As a result of the confidentiality in the dependency system, appellant was unable to get information that would have beencritical to the cross-examination of Ivan Jr.: symptomsleading to the diagnosis that Ivan Jr. suffered from post-traumatic stress disorder, the hallucination or illusion that Ivan Jr. reported seeing, improper influences on Ivan Jr.’s recollection and testimony, and Ivan Jr.’s foster mother’s expression of concern over Ivan Jr.’s proclivity to lie. Ivan Jr.’s report that he had seen double and belief that he had seen his soul would have been fertile ground for cross-examination if appellant had access to this information. (See People v. Gurule (2002) 28 Cal.4th 557, 592 [“Of course, the mentalillness or emotionalinstability of a witness can be relevant on the issue of credibility, and a witness may be cross-examined on that subject, if such illness affects the witness’s ability to perceive, recall or describe the events in question”].) Appellant’s counsel could have asked Ivan Jr. if he had seen double or seen his soul. Flashbacks, nightmares, illusions, and hallucinations are among the symptomsfor post-traumatic stress disorder. (RT 22:1896; see generally, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text Revision 2000), pp. 463-468.) Ivan Jr. seeing double and believing that he was lookingathis soul constitutes an illusion or hallucination. That was not an isolated incident. After the preliminary hearing, Ivan Jr. told his therapist that he saw double once or twice per day and on two occasions saw an orange and white light that he believed was Genny. Hadappellant’s counsel been privy to its existence, symptoms -204- related to Ivan Jr.’s post-traumatic stress disorder would have undermined the credibility of Ivan Jr.’s testimonyat the preliminary hearing. Ivan Jr.’s mental condition would have suggested that the wholesale changes in Ivan Jr.’s story between his interviews in the days following Genny’s death and his preliminary hearing testimony were the product of Ivan Jr. having nightmaresor hallucinations that became the source of his memory ofthe incident. Even if Ivan Jr.’s memory of the events to whichhetestified had not changed overtime, Ivan Jr.’s illusions or hallucinations would have cast doubt on the validity of his perceptions. For these reasons, appellant’s counsel would have cross-examined Ivan Jr. at the preliminary hearing abouthis flashbacks, nightmares, illusions, or hallucinations. Ivan Jr.’s answers to those questions would have provided additional reasons to doubt whetherIvan Jr.’s memory wasaccurate and whetherhis perceptions reflectedreality. In addition, awareness that Ivan Jr.’s foster mother had violated a court order and questioned Ivan Jr. about the case would have permitted appellant to cross-examine Ivan Jr. about improper influences on his recollection and testimony.” Appellant’s counsel could have asked Ivan Jr. whether he had conversations with his foster mother about what had happened to Genny and whetherthe foster mother hadinitiated those conversations. In addition, counsel could have cross-examinedIvan Jr. about the content of those conversations. Evidence suggesting that Ivan Jr.’s preliminary hearing testimony was contaminated would have undercut the credibility of the allegations Ivan Jr. made against appellant. ® The court excluded appellant’s proffered collateral evidence that Ivan Jr.’s preliminary hearing testimony had been contaminated. (RT 58:7342-7351, 7366-7367; RT 60:7570-7576, 7760-7777.) -205- Knowledgeof Ivan Jr.’s foster mother’s allegations that Ivan Jr. lied perpetually would have further enhanced the cross-examination of IvanJr. Questions asking Ivan Jr. whether he could distinguish between truth and falsehood and whetherhis preliminary hearing testimony wastruthful _ comprised a significant portion of Veronica’s and appellant’s cross- examination of Ivan Jr. He answered those questions affirmatively. (PX 2:259-261, 295-298.) Ivan Jr. initially claimed that he did nottell lies, but then concededthat he had lied when he was younger. (PX 2:260.) Because appellant was unaware of a contemporaneous report that Ivan Jr. was repeatedly lying, Ivan Jr.’s assertions went unchallenged. If appellantat the time of the preliminary hearing had known aboutIvan Jr.’s foster mother’s report, appellant could have questioned Ivan Jr. about it and impeached Ivan Jr.’s contentions regarding his truth-telling. Appellant’s lack of access to Ivan Jr. and this highly probative information precluded him from having a meaningful opportunity for effective cross-examination at the preliminary hearing. The ability to cross- examine a witness effectively depends on having access to information with which the witness can be impeached, (See Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1146 [explaining information on crucial prosecution witnesses was “essential to the defendant’s ability to conduct an effective cross-examination”].) Pretrial discovery is founded onthis premise. (See Moore v. Conliffe (1994) 7 Cal.4th 634, 663 (dis. opn. of Baxter, J.) [““The ability to discover the evidence upon which the opponent’s case rests enables the parties to prepare effective cross-examination and to obtain and present impeaching evidence.”]; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537 [holding discovery of sheriff’s investigators’ prior statements was “necessary for effective -206- cross-examination of the deputies at trial”]; People v. Mackey (1985) 176 Cal.App.3d 177, 186-187 [explaining prosecution’s withholding of witness statement prevented effective cross-examination]; ABA Standards Relating to Discovery and Procedure Before Trial (1974) § 1.2 [“In order to... afford opportunity for effective cross-examination, and meet the requirements of due process, discovery priorto trial should be as full and free as possible... .”].) Defense counsel’s lack of access to exculpatory information produces a pronouncedeffect on the opportunity for effective cross- examination. (See Atkinson v. State (Del. 2001) 778 A.2d 1058, 1061-1064 [explaining that suppression of impeachmentevidence undercut opportunity for effective cross-examination]; Jimenez v. State (Nev. 1996) 918 P.2d 687, 694 [explaining that non-disclosure of impeachmentevidence that would have enabled effective cross-examination prevented defendant from receiving fair trial]; State v. Burke (R.I. 1990) 574 A.2d 1217, 1225 [“Effective cross-examination can be impeded by the suppression of material evidence”].) That is why Brady v. Maryland (1963) 363 U.S. 83, 86-87, bars the prosecutorial suppression ofimpeachmentevidence. (See United States v. Bagley (1985) 473 U.S. 667, 676 [holding that Brady forbids suppression of impeachment evidence because“if disclosed and used effectively, it may make the difference between conviction and acquittal”]; Roberts v. State (Nev. 1994) 881 P.2d 1, 8 [“It is well settled that evidence that would enable effective cross-examination and impeachment may be material and that nondisclosure of such evidence may deprive an accusedofa fair trial’’].) In this case, at the time of the preliminary hearing, appellant lacked accessto significant information with which he could have impeached Ivan -207- Jr. Consequently, appellant lacked a meaningful opportunity to cross- examineIvanJr. effectively at the preliminary hearing. Therefore, the trial court erred by admitting Ivan Jr.’s preliminary hearing testimony into evidenceattrial. (See People v. Brock, supra, 38 Cal.3d at p. 198 [holding trial court erred in admitting preliminary hearing testimonyat trial because defendant lacked meaningful opportunity for effective cross-examination].) 2. The Trial Court Erred in Using Its Purported Inherent Authority to Protect Children from Imminent Harm to Quash the Subpoenaof Ivan Jr. and Not Using That Authority to Exclude the Videotapes of Ivan Jr.’s Preliminary Hearing Testimony Thetrial court’s incomplete and uneven use of whatit believed to be its authority to protect children from harm waserroneous. Thetrial court used two groundsto find Ivan Jr. unavailableto testify at trial and quash the subpoenaagainst Ivan Jr.: Evidence Code section 240 and the court’s inherent authority to protect children from imminent harm. The court based its ruling on the extensive psychiatric testimony regarding the harm that Ivan Jr. would have suffered had hetestified against his parentsat their trials. The same testimony also demonstrated that Ivan Jr. would be harmed from the introduction of his preliminary hearing testimonyat his parents’ trials. The court’s use of its inherent authority to protect minors to find Ivan Jr. unavailable, but not to find Ivan Jr.’s preliminary hearing testimony inadmissible, waserror. The mental health testimony on which the court relied to find Ivan Jr. unavailable also articulated the immense harm that Ivan Jr. would suffer from the admission ofthe preliminary hearing testimony. The mental health experts expressed fundamental concerns about the long-term traumathat Ivan Jr. would suffer after he began to appreciate the ramifications of -208- havinghis testimony used by the prosecution to get his parents executed. (RT 22:1938, 1954, 1973-1974; RT 23:2262-2263; RT 24:2318.) Ivan Jr.’s therapist, Edna Lyons,testified that Ivan Jr. would suffer long-term trauma from the admission of his preliminary hearing testimonyattrial, regardless of whetherhetestified at trial. (RT 22:2030-2031.) Dr. Charles Marsh explained that Ivan Jr.’s testimony would cause him profound trauma when Ivan Jr. learned the ramifications of his testimony, because he would feel that his testimony caused his parents to be sentenced to death. (RT 22:1954, 1974.) Although Dr. Marshtestified that playing the preliminary hearing tape would not cause major trauma, he based that opinion on the assumption that the preliminaryhearing has a limited purpose. (RT 22:1978, 1980.) The use of Ivan Jr.’s preliminary hearing testimony in a mannerthat contributed to his parents’ convictions and death verdicts, rather than merely contributing to them being bound over fortrial, would cause great trauma. Dr. Cynthia Jacobs, Edna Lyons’s supervisor, also opined that Ivan ‘Jr. would face significant traumain the future after he became awareofthe ramifications of his testimony playing a role in having his parents put to death. (RT 23:2263; RT 24:2318.) She explained that Ivan Jr. faced a grave risk of blaming himself for his parents’ death sentences andthat the burden on him would be huge if he were the only one of appellant’s childrento testify. (RT 24:2334, 2351.) Although she believed that having his preliminary hearing testimony playedat trial would be a qualitatively different experience from testifying at trial and would cause less short-term trauma, Dr. Jacobs declared that playing the tape of Ivan Jr.’s preliminary hearing testimony would be traumatic to him and that Ivan Jr. would have to come to terms with having delivered testimony that led to his parents’ death -209- sentences. (RT 24:2297-2298.) Thetrial court recognized that Ivan Jr. would endure harm from having the prosecution use his preliminary hearing testimony to secure death sentences against Ivan Jr.’s parents. (RT 29:3252.) Concluding that the prosecution’s interest in presenting the evidence outweighedIvanJr.’s interest in not having long-term trauma from having his testimony contribute to his parents’ executions, the trial court admitted the videotapes of Ivan Jr.’s preliminary hearing testimony into evidence. (RT 29:3252; RT 55:6885, 6891-6892.) Thetrial court’s ruling was erroneous. The potential for harm to Ivan Jr. from the use of his preliminary hearing testimony wasso grave that the prosecution’s interest in admitting the testimony did not outweigh Ivan Jr.’s interest in not being harmed. Having a young child deliver testimony, whetherlive or via videotape of prior testimony, that contributes to his parents getting sentenced to death and executedis far too great a burden to impose on him,evenifprotecting him prevents the prosecution from introducing the child witness’s testimony. This is especially so in this case, in which the prosecutorstated at a dependency court hearing pertainingto this case that he did not need Ivan Jr.’s testimony to prove his case. (CT 6:1442.) The prosecution’s decision not to introduce Ivan Jr.’s preliminary hearing testimony at the penalty retrial further demonstrates that the prosecution’s interest in admitting the testimony at appellant’s trial did not outweigh Ivan Jr.’s interest in not having the testimony introducedat his parents’ capitaltrials. 3. The Trial Court Erred in Ruling that Ivan Jr. Was Competent to Testify at the Preliminary Hearing Thetrial court found Ivan Jr. to be competentat the timehetestified at the preliminary hearing. In view ofthe deficits in Ivan Jr.’s ability to -210- distinguish truth from falsehood and the adequacy of his memory, the court’s ruling was erroneous. Dr. Yanon Volcani, a clinical child psychologist, gave uncontradicted testimony that Ivan Jr.’s recollection at the time of the preliminary hearing wasso tainted that Ivan Jr. lacked the ability to distinguish truth from falsehood and did not have an adequate memory of the events about which hetestified. (RT 48:5733.) Hetestified that children whoare Ivan Jr.’s age at the time of the preliminary hearing are mostlikely to confabulate and layer their own fantasies and associations onto the stored memories of the event, and that children’s memoriesof a trauma could be impacted by adults and the services provided for the child to help him cope with the trauma. (RT 48:5705-5706.) Dr. Volcani concluded that there was a significant probability that Ivan Jr.’s stated memories of events at the preliminary hearing were inaccurate. (RT 48:5715.) Hetestified that chaotic circumstances and Ivan Jr.’s developmental stage would have impacted the encoding of Ivan Jr.’s memory. (RT 48:5717.) He explained that the input Ivan Jr. received from important figuresin his life, including his foster mother, therapist, and the police officers who questioned him, and the fantasy elaborations and associations inherent in his developmental stage tainted the storage of Ivan Jr.’s memory. (RT 48:5717-5728.) Dr. Volcanistated that the changes between July and November 1995 in Ivan Jr.’s portrayal of events showed that Ivan Jr.’s memory had mutated. (RT 48:5724.) He opined that the interview of Ivan Jr. held hours after Genny died, during whichthe police told Ivan Jr. that he was lying, could not have been more conducive to impacting a memory. (RT 48:5727-5728.) Dr. Volcani testified that during the interviews with police, Ivan Jr. got confused and lookedto the police -211- officer for cues, and that Ivan Jr. by late October 1995 began using new terms and further changed his wording when discussing the pertinent events; this suggested that others had taintedIvan Jr.’s memory. (RT 48:5726-5727, 5730-5732.) Dueto his inability to distinguish truth from falsehood andlack of an adequate memory, Ivan Jr. was not competentto testify at the preliminary hearing. To be competent to testify, a witness must have “the ability to differentiate between truth and falsehood, the capacity to observe, sufficient intelligence, adequate memory,the ability to communicate, and an appreciation of the obligation to speak the truth.” (Un re Nemis M. (1996) 50 Cal.App.4th 1344, 1354; accord, In re Basilio T. (1992) 4 Cal.App.4th 155, 167, fn. 7.) Ivan Jr. did not have twoofthese prerequisites. At the time of the preliminary hearing, Ivan Jr. did not possess the ability to distinguish truth from falsehood. This Court has recognized that a child witness’s inability to distinguish between truth and falsity renders him incompetentto testify. (See Jn re Cindy L. (1997) 17 Cal.4th 15, 18, 31- 35.) In Dr. Volcani’s uncontradicted expert opinion, Ivan Jr. could not distinguish between what he saw and what somebodytold him had happened. (RT 48:5733.) The drastic changesin Ivan Jr.’s recollection between the days following Genny’s death and the timeofhis preliminary hearing testimony buttressed Dr. Volcani’s conclusion. Moreover, Dr. Volcani’s concerns about people influencing Ivan Jr.’s recollection was borne out; due to its concerns about Ivan Jr.’s foster mother overstepping her bounds, a dependencycourt judge ordered Ivan Jr.’s foster mother, who cared for Ivan Jr. during the months preceding the preliminary hearing, not to ask Ivan Jr. about the events surrounding Genny’s death. (RT 58:7344- -212- 7345.) In addition, when Ivan Jr. testified, he did not command an adequate memory. Likethe ability to distinguish truth from falsity, an adequate memory is a precondition for competency. Un re Nemis M., supra, 50 Cal.App.4th at p. 1354; In re Basilio T., supra, 4 Cal.App.4th at p. 167, fn. 7.) Without contradiction, Dr. Volcanitestified that Ivan Jr.’s memory waslikely so impaired that Ivan Jr. didn’t know whether he was stating the truth. (RT 48:5733.) The wholesale changes in Ivan Jr.’s recollection, plus evidence that Ivan Jr.’s memory had beentainted by others, support Dr. Volcani’s opinion that Ivan Jr. did not possess an adequate memory. Although defects in a witness’s memory typically do not render him incompetent to testify and merely form a basis for finding the witness incredible (People v. Lewis (2001) 36 Cal.4th 334, 356-358), the adequacyofIvan Jr.’s memory fell below the threshold for competency. When a witness’s memory is so likely impaired that he lacks theability to know whether his memoriesare truthful, the witness is incompetent to testify. Because he cannot distinguish between accurate and confabulated recollections and thus had a false confidencein the truthfulnessofhis testimony, there is no opportunity to cross-examine him effectively. (Cf. People v. Shirley (1982) 31 Cal.3d 18, 66-67 [barring admission of hypnotically aided testimony, in part because cross-examination would be rendered ineffective due to witness’s inaccurate conviction in truth of hypnotically induced recollection]; State v. Mack (Minn. 1980) 292 N.W.2d 764, 769-770 [concluding hypnotically aided testimony of complaining witness prevented defendant from meaningfully cross-examining her because hypnotized witness could not distinguish accurate memory from confabulated memory]; State v. Moore (N.J. 2006) 902 A.2d 1212, 1227- -213- 1229 [holding hypnotically aided testimonyis inadmissible, largely because a witness’s false confidence in the accuracy ofher distorted recollections “subverts effective cross-examination”’].) C. The Admission Of Ivan Jr.’s Preliminary Hearing Testimony Violated Appellant’s Confrontation- Clause Rights By admitting the videotapes of Ivan Jr.’s preliminary hearing testimony,the trial court infringed appellant’s confrontation-clauserights. Appellant never had an opportunity to cross-examine Ivan Jr. effectively. Asa result, the introduction of Ivan Jr.’s prior testimony at appellant’s trial violated appellant’s constitutional right to have the opportunity for effective cross-examination of adverse witnesses. The confrontation clauses of the Sixth Amendmentto the United States Constitution and article I, section 15 of the California Constitution prohibit the introduction of testimonial evidence, including prior testimony, against a defendant unless he has had a meaningful opportunity for effective cross-examination. (People v. Harrison (2005) 35 Cal.4th 208, 239.) Becausethe confrontation clause contains no hearsay exception for the admission of former testimony, “preliminary hearing testimonyis admissible only if the defendant had an adequate opportunity to cross-examine.” (Crawford v. Washington (2004) 541 U.S. 36, 57.) An opportunity to cross-examine the witnessat the prior proceeding doesnot, byitself, satisfy the dictates of the confrontation clause; without an opportunity for effective cross-examination, the admission ofthe prior testimony cannot square with the defendant’s confrontation-clause rights. (United States v. Owens (1988) 484 U.S. 554, 559 [explaining confrontation clause requires opportunity for effective cross-examination].) Appellant never had an adequate opportunity to cross-examine Ivan -214- Jr. effectively. At the preliminary hearing, the lone occasion IvanJr. testified, appellant lacked access to information necessary to conduct an effective cross-examination. Thestate’s confidentiality policies precluded appellant from knowing that Ivan Jr. had been experiencing symptoms associated with post-traumatic stress disorder, had reported seeing a hallucination or illusion, and had been improperly influenced by his foster mother, and that Ivan Jr.’s foster mother had expressed concernsregarding Ivan Jr.’s lying. As explained above, appellant not having accessto this information precluded an effective cross-examination. (See ante, at pp. 203-208.) Appellant’s inability to conduct an effective cross-examination of Ivan Jr. implicates the confrontation clause for two reasons. First, state action prevented appellant from gaining access to the information regarding Ivan Jr. prior to, and for many monthsafter, the preliminary hearing. “The appropriate question is whether there has been any interference with the defendant’s opportunity for effective cross-examination.” (Kentucky v. Stincer (1987) 482 U.S. 730, 745, fn. 17.) The State of California has a policy protecting the confidentiality of foster- home placements and records pertaining to dependent children. (See Welf. & Inst. Code, § 827.) The confidentiality policy that prevented appellant from obtaining evidence crucial to the cross-examination of Ivan Jr. distinguishes this case from a scenario where a witness’s faulty memory hinders cross-examination. (Compare United States v. Owens (1988) 484 U.S. 554, 559-560 [holding that opportunity for effective cross-examination is not denied where witness suffers memory lapse].) Second,thetrial court in this case admitted prior testimony of a witness who did nottestify at trial. The admission of the testimonial hearsay implicates confrontation-clause concerns. (Crawfordv. -215-. Washington, supra, 541 U.S. at p. 57.) Consequently, the confrontation- clause violation in this case does not transform the clause “into a constitutionally compelledrule ofpretrial discovery,” which plurality of the United States Supreme Court wasleery of doing. (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 52 (plurality opn.).) Appellant does not contendthat there was a discovery violation; he asserts that the admission of Ivan Jr.’s preliminary hearing testimony, during which appellant had no meaningful opportunity for effective cross-examination, violated his constitutional rights. The confrontation clause undoubtedly pertains to situations, as here, in which the court admits preliminary hearing testimony of a witness that the defendant never had a meaningful opportunity to cross- examineeffectively. (Crawford, 541 U.S. at p. 57.) Thus, the unconstitutional admission oftestimonial hearsay in this case does not implicatethe concernsofthe Ritchie Court plurality about constitutionalizing discovery violations. | Thetrial court’s ruling that Ivan Jr.’s preliminary hearing testimony was admissible despite the imminent harm that would result, which followed the quashing ofIvan Jr.’s subpoenain large part becauseofthe long-term harm he would face after testifying against his parents in their capital cases, also violated appellant’s confrontation-clause rights. By quashing the subpoena but admitting the preliminary hearing testimony, the court put appellant in an untenable position. Thetrial court admitted the testimony although the state had impeded cross-examination by denying appellantaccess to Ivan Jr., his foster family, and the information that would have undercut Ivan Jr.’s credibility. Had the trial court not quashed Ivan Jr.’s subpoena, appellant could have effectively cross-examined Ivan Jr. at trial, when appellant had access to the information pertaining to Ivan -216- Jr.’s memory and ability to perceive accurately. Thetrial court’s rulings, however, forced appellant to contend with the worst of both worlds: the admission of Ivan Jr.’s testimony without the opportunity to conduct a cross-examination while having accessto crucial information regarding Ivan Jr.’s credibility. That violated appellant’s constitutional right to confront the witnesses against him. Appellant further lacked an adequate opportunity for effective cross-examination because Ivan Jr. was not a competent witness at the time of the preliminary hearing. A witness who is incompetent due to an inability to distinguish truth from falsity or an inadequate memory cannot be cross-examinedeffectively. It is difficult to show during cross-examination that a witness’s testimonyis untrue if the witness himself cannot distinguish between truth and falsity or if he cannot distinguish between accurate and inaccurate memories. It is analogousto a situation in which a witness’s testimony has been hypnotically aided. In that scenario, this Court has held that the testimony should be barred because the cross-examination of the witness would be rendered ineffective due to the witness’s inaccurate conviction in the truth of hypnotically induced recollection. (People v. Shirley, supra, 31 Cal.3d at pp. 66-67.) Other courts have similarly concludedthat there is no meaningful opportunity for effective cross- examination of a witness whose testimony wasaided by hypnosis. (See State v. Gonzales (Mich. 1982) 329 N.W.2d 743, 747-748; State v. Mack, supra, 292 N.W.2d at pp. 769-770 [concluding hypnotically aided testimony of complaining witness prevented defendant from meaningfully cross- examining her because hypnotized witness could not distinguish accurate memory from confabulated memory but had firm belief in veracity of both]; State v. Moore, supra, 902 A.2d at pp. 1227-1229 [same].) Likewise, in -217- this case, Ivan Jr.’s inability to distinguish between truth and falsehood and his inadequate memory precludedthe possibility of an effective cross- examination. The hindrance to cross-examining Ivan Jr. was exacerbated by the state impeding appellant’s access to the information revealing Ivan Jr.’s incompetence to be a witness. D. Due To The Admission Of Ivan Jr.’s Preliminary Hearing Testimony, The Municipal Court’s Errors At The Preliminary Hearing Infected Appellant’s Trial Twosignificant errors that the municipal court madeat the preliminary hearing spilled over into appellant’s trial through the admission of Ivan Jr.’s preliminary hearing testimony. Those errors further infringed appellant’s confrontation-clause rights. 1. The Court-Ordered Seating Arrangement Employedfor Ivan Jr.’s Preliminary Hearing Testimony Violated Appellant’s Right to Face-to-Face Confrontation The municipal court ordered that Ivan Jr. be seated to face away from appellant and Veronica during his testimony, though the court never made a case-specific finding that this seating arrangement was necessary. This ruling violated appellant’s Sixth Amendmentandarticle I, section 15 right to face-to-face confrontation. Prior to the preliminary hearing, the prosecution filed a motion for a protective courtroom seating arrangementfor the child witnesses. (CT 1:24-31.) In the motion, the prosecution claimed that Ivan Jr. and Michael said to the police and prosecution team that they feared fortheir lives and that they had been warnedbytheir parents not to tell anyone about what went on in their home, including what appellant and Veronica allegedly did to Genny. (CT 1:24-25.) The prosecution requested that the municipal -218- court order that Ivan Jr. and Michael be positioned to face away from appellant and Veronica while they testified. (CT 1:25, 31.) Before receiving testimonyat the preliminary hearing, the municipal court granted the prosecution’s request for an alternate seating arrangement for the day Ivan Jr. and Michael were scheduled to testify. The municipal court stated that it did not want the children to face Veronica and appellant. | (PX 1:9.) It added, “I don’t want children of tender age intimidated, and that’s what I’m guarding against.” The court did not raise any case-specific concernsorjustify its ruling on anything other than a generalized notion that children testifying against their parents may be intimidated by them. In response to appellant’s counsel’s confrontation-clause objections, the municipal court judge said that Veronica and appellant’s Sixth Amendment rights would not be violated because they could see and hearthe child witnesses and the witnesses could see them if they chose to look at them. (PX 1:10.) By ordering that Ivan Jr. be seated so that he faced away from appellant, the municipal court impeded a face-to-face confrontation. Because the municipal court failed to make a case-specific finding of necessity regarding the seating arrangement, the municipal court’s order violated appellant’s confrontation-clause rights. It is well-established that “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before thetrier of fact.” (Coy v. Iowa (1988) 487 U.S. 1012, 1016.) Appellant, however, did not meet Ivan Jr. face-to-face during the preliminary hearing. Instead, the court orderedthat Ivan Jr. be seated so that he faced onesideofthe courtroom while appellant was seated at the prosecution table, which was located at the other side of the courtroom. -219- The municipal court’s order that Ivan Jr. testify while facing away from appellant implicated the confrontation clause. Like the screen placed between the defendant and child witness that the United States Supreme Court held had violated the defendant’s confrontation-clause right in Coy v. Iowa, supra, 487 U.S.at p. 1020, the seating arrangement employed during Ivan Jr.’s preliminary hearing testimony constituted a state-created impedimentto face-to-face confrontation. Ivan Jr. and appellant were seated so that appellant was well outside Ivan Jr.’s field ofvision. Consequently, the court-ordered special seating arrangement deterred a face-to-face encounter. | The UnitedStates Supreme Court has recognized that a “face-to-face confrontation between accused and accuser[is] ‘essential to a fair trial in a criminal prosecution.’”” (Coy v. Iowa, supra, 487 U.S.at p. 1017, quoting Pointer v. Texas (1965) 380 U.S. 400, 404.) A face-to-face confrontation facilitates an assessment of a witness’s credibility. (Coy, 487 U.S. at pp. 1018-1020; Commonwealth v. Johnson (Mass. 1994) 631 N.E.2d 1002, 1006.) Furthermore, a defendant, after viewing the witness’s demeanor and mannerisms, can suggest to defense counsel lines of questioning for cross-examination. (People v. Lofton (Ill. 2000) 740 N.E.2d 782, 794.) The defendant would be best able to provide assistance with a witness with whom hehasa close relationship, as appellant had with his son Ivan Jr. For these reasons, the confrontation clause circumscribesthe state’s ability to obstruct a face-to-face encounter. Except possibly underlimited circumstances(see post, at pp. 223-225), barriers used in the courtroom to shield the defendant from the witness, such as a screen (Coy v. Iowa, supra, 487 U.S.at p. 1020), two podiums (People v. Lofton, supra, 740 N.E.2d at -220- p. 794), or a prosecutor’s body (Smith v. State (Nev. 1995) 894 P.2d 974, 976), violate the defendant’s constitutional right to confrontation. A court- ordered seating arrangement in which the witness faces away from the defendant similarly impedes a face-to-face confrontation between the witness and defendant. Althoughit is not impossible for the witness in the alternate seating arrangementto look at the defendant, the state-imposed seating arrangementinformsa child witness that people in authority believe that a face-to-face encounter would not be advisable. The alternate seating arrangementitself and the messagethat it entailed dissuaded the face-to- face confrontation to which the Sixth Amendmentandarticle I, section 15 entitled appellant. It is immaterial that the confrontation clause does not “compel the witness to fix his eyes upon the defendant.” (Coy v. Iowa, supra, 487 U.S. at p. 1019.) Justice Charles Fried explained: [I]t is a non sequitur to argue from the proposition that, because the witness cannot be forced to look at the accused during his face-to-face testimony, that therefore this aspect of the . . . confrontation right is dispensable. The witness whofaces the accused and yet does not look him in the eye whenhe accuses him maythereby cast doubt on the truth of the accusation. (Commonwealth v. Amirault (Mass. 1997) 677 N.E.2d 652, 662.) In addition to negating the possibility of a negative inference when a witness does not look the defendantin the eye, there is a crucial distinction between a witness averting his eyes from the defendant and a witness whois placed by court order so that the defendantis out ofhis field of vision: Thelatter scenario entails state action interfering with the defendant’s confrontation- clause rights. When a witness, rather than the state, frustrates a defendant’s ability to confront an adverse witness, the Sixth Amendmentis not -221- infringed. (See United States v. Owens, supra, 484 U.S.at pp. 559-560 [holding that opportunity for effective cross-examination is not denied if witness suffers memory lapse].) On the other hand, the Sixth Amendment is implicated whenthestate interferes with a defendant’s confrontation interests. (See Coy v. Iowa, supra, 487 U.S. at pp. 1020-1021 [holding use of screen that prevented child witness-accuser from seeing defendant violated defendant’s confrontation-clause rights]; Davis v. Alaska (1974) 415 US. 308, 320 [holding bar on cross-examination ofjuvenile witness’s adjudication for delinquency, which pertained to witness’s bias, denied defendant’s right to effective cross-examination.].) The court-ordered alternate seating arrangementin this case constituted state action. Accordingly, the seating arrangement wasa per se violation of appellant’s face-to-face-confrontation rights. The United States Supreme Court’s ruling in Maryland v. Craig (1990) 497 U.S. 836, 855-857 that a defendant’s face-to-face confrontation right can give wayto the state’s interest to protect child witnesses is no longer viable. Quoting Ohio v. Roberts (1980) 448 U.S. 56, 63, Craig premised its holding on the proposition that the confrontation clause merely reflects a preference for, rather than requires, a face-to-face confrontation. (Maryland v. Craig, supra, 497 U.S. 836, 849.) In Crawford v. Washington, supra, 541 U.S.at pp. 60-68, the United States Supreme Court overruled Ohio v. Roberts and criticized Roberts’s departure from the confrontation clause’s original meaning. Craig was founded on Roberts’s ahistorical denigration of the right to face-to-face confrontation. In light of Crawford, the holding in Craig that the state may, in limited circumstances, override the defendant’s right to face-to-face confrontation cannot be reconciled with Crawford and is not good law. Accordingly, no case-specific showing of necessity can -222- overcome a defendant’s right to confront adverse witnesses face-to-face. Under Coy v. Iowa, supra, the alternate seating arrangementviolated appellant’s confrontation-clause rights irrespective ofwhether the prosecution made a case-specific showing of necessity. In the event that this Court determinesthatit lacks the authority to overturn a United States Supreme Court precedent and deemsthat Maryland v. Craig governs this case (but see State ex rel. Simmons v. Roper (Mo. 2003) 112 S.W.3d 397, 406-407 [reconsidering viability of United States Supreme Court precedent], aff'd (2005) 543 U.S. 551), the seating arrangement nonetheless violated appellant’s confrontation rights. Absent a case-specific showing of necessity, a seating arrangement in which a child witnessis positioned to face away from the defendant violates the defendant’s confrontation-clause rights guaranteed by the Sixth Amendment. (Ellis v. United States (1st Cir. 2002) 313 F.3d 636, 649-650 [requiring case-specific showing of necessity to justify alternate seating arrangement]; State v. Lipka (Vt. 2002) 817 A.2d 27, 33 [same]; see also, People v. Tuck (N.Y. 1989) 551 N.E.2d 578 [holding that alternate seating arrangement violated confrontation clause].) The lone Court of Appeal case that upheld the use of a similar seating arrangementas that employedin this case recognized that the Sixth Amendment, as construed by the United States Supreme Court in Maryland v. Craig, supra, 497 U.S.at pp. 855- 857, required a case-specific showing of necessity to override lawfully a defendant’s right to a face-to-face confrontation. (People v. Sharp (1994) 29 Cal.App.4th 1772, 1783, fn. 4.) Because the municipal court ordered the alternate seating arrangement in the absence of a case-specific showing ofnecessity, the seating arrangement violated appellant’s confrontation-clause rights. In -223- Marylandv. Craig, supra, 497 U.S. at pp. 855-857, the United States Supreme Court permitted a child witness to testify via one-way closed- circuit television, but required a case-specific finding that the interference with the face-to-face confrontation was necessary to protect the particular ‘child witness from trauma. The municipal court’s ruling fell far short of _ this requirement. The Supreme Court explained: “The requisite finding of necessity must, of course, be a case-specific one: the trial court must hear evidence and determine whetheruse of the . . . procedure is necessary to protect the welfare ofthe particular child witness who seeksto testify.” (Marylandv. Craig, supra, 497 U.S.at p. 855.) The proponent of the procedure seeking to curtail the defendant’s face-to-face confrontation rights bears the burden ofproving, through competent evidence, the need to use the procedure. (Hochheiser v. Superior Court (1984) 161 Cal.App.3d 777, 793.) Generalized concerns regarding how child witnesses tend to be intimidated or maybe frightened cannotsatisfy the requirement of a case-specific showing of necessity. (Commonwealth v. Amirault, supra, 677 N.E.2d at p. 664 [concluding expert testimony regarding generalities of child witnesses testifying in sexual abuse cases did not show case-specific necessity].) In addition, a prosecutor’s unsworn assertion that the particular child witness would be traumatized by a face-to-face encounter with the defendant cannot demonstrate a case-specific finding of necessity. (People v. Murphy (2003) 107 Cal.App.4th 1150, 1158.) Moreover, the defendant’s presence must be the source of the trauma. (Craig, 497 U.S.at p. 856.) Expert testimonyis needed to makethat showing. (Hochheiser, 161 Cal.App.3d at pp. 792-794 [reversing trial court’s order for sex abuse child-victims to testify via closed-circuit television, in part because victims’ parents’ testimony -224- regarding their mental health wasinsufficient to establish necessity of procedure].) The prosecution made no showing ofa case-specific necessity in this case. The municipal court granted the prosecution motion for an alternate seating arrangement despite not hearing any evidence in support of the motion. In its motion, the prosecution made unsworn representations that Ivan Jr. and Michael expressed fear of their parents and that they said their parents told them notto tell anyone about what had occurred in their home. Theseallegations were never subject to adversarialtesting. Appellant was further unable to rebut them because only the prosecution had accessto Ivan Jr. and Michael. In granting the motion, the municipal court made nospecific reference to the prosecution’s representations. Rather, the court expressed concerns regarding young witnesses being intimidated. In conjunction with those concerns, the court cited no information specific to this case or these particular witnesses. Thus, the municipal court’s ruling was fundamentally flawed in several respects. When the court ordered the alternate seating arrangement, no competent evidence supported the ruling. The court madeno case- specific finding that the alternate seating arrangement was necessary to protect Ivan Jr. and Michael from suffering trauma that would have resulted from the standard courtroom seating arrangement. The two potential sources for the municipal court’s ruling, general misgivings about child witnessestestifying for the prosecution in the defendants’ presence and the prosecutor’s unsworn allegations, failed to provide a remotely sufficient basis for overriding appellant’s constitutional right to a face-to-face confrontation with prosecution witnesses. (See People v. Murphy, supra, 107 Cal.App.4th at p. 1158; Hochheiser v. Superior Court, supra, 161 .-225- Cal.App.3d at pp. 792-794.) The basis for the municipal court’s ruling was flatly inadequate althoughthe alternate seating arrangement constituted a lesser deprivation of appellant’s face-to-face confrontation rights than a screen or testimony via closed-circuit television. Some courts havearticulated that the minimum showing necessary for a lawful deprivation ofthe right to face-to- face confrontation is correlated to the extent of the deprivation. (See People v. Sharp, supra, 29 Cal.App.4th at p. 1783; Ellis v. United States, supra, 313.F.3d at p. 650; cf. People v. Lord (1994) 30 Cal.App.4th 1718, 1722 [concluding minimal showingis required for permitting support person to join child witness].) Nevertheless, the trial court was obliged to makea case-specific finding of necessity before ordering the alternate seating arrangementin this case. (See Sharp, 29 Cal.App.4th at p. 1783, fn. 4; Ellis v United States, supra, 313 F.3d at pp. 649-650; State v. Lipka, supra, 817 A.2d at p. 33.) Though the required showing of necessity may not have been as difficult to make as that required before a court can order testimony via closed-circuit television, the showing must have been case specific and groundedin evidence received. By basingits ruling on a general reluctance to having child witnesses testify for the prosecution in the defendants’ presence and the prosecutor’s unsworn allegations, the municipal court failed to predicate its order of the alternate seating arrangement on anything approaching a sufficient case-specific showing of necessity. Nothingin the preliminary hearing record, other than the prosecutor’s unsworn assertions made in the moving papers, would have supported a case-specific finding of necessity. In People v. Sharp, supra, 29 Cal.App.4th at pp. 1780-1786, the lone appellate court ruling in this state -226- upholding this sort of seating arrangement, the trial court observed the witness’s fear and distress prior to ordering the alternate seating arrangement. In contrast, in this case the municipal court had novalid basis for an implied or explicit finding of case-specific necessity permitting appellant’s constitutional rights to face-to-face confrontation to be overriden. Prior to the United States Supreme Court’s decision in Marylandv. Craig, supra, the Court of Appeal held that a similar seating arrangement violated the defendant’s Sixth Amendment rights. (See Herbert v. Superior Court (1981) 117 Cal.App.3d 661, 668-671.) Because there was no case- specific finding of necessity in this case, this Court should likewise concludethat the seating arrangementviolated appellant’s confrontation- clause rights. Moreover, courts in other jurisdictions have found similar alternative seating arrangements, coupled with an absence of a case-specific showing ofnecessity, to violate defendants’ Sixth Amendmentrights to face-to-face confrontation. (People v. Tuck, supra, 551 N.E.2d at p. 578; State v. Lipka, supra, 817 A.2d at pp. 32-33; cf. Commonwealth v. Johnson (Mass. 1994) 631 N.E.2d 1002, 1005-1007 [holding seating arrangementin which rape child-victimstestified with their backs toward defendant violated defendant’s state constitutional confrontation rights].) Accordingly, the municipal court erred by ordering the alternate seating arrangementthat the prosecutor had requested. 2. Barring Defense Counsel from Asking Ivan Jr. about His Understandingof the Consequences of Lying During His Preliminary Hearing Testimony Violated Appellant’s Right to Effective Cross- Examination AlthoughIvanJr.’s credibility was the focus of appellant’s -227- counsel’s cross-examination of Ivan Jr. at the preliminary hearing, the municipal court prevented counsel from inquiring about Ivan Jr.’s appreciation of the ramifications of lying during cross-examination. That wasevidentiary and constitutional error. | Shortly after Ivan Jr. testified that “you get in trouble” for telling a lie but testified that he did not know with whom one wouldgetin trouble, defense counsel asked Ivan Jr.: “[I]f I asked you a question and you gave me an answerandI said Ivan, you lied, would you get in trouble with me?” (PX 2:296.) The municipal court sustained the prosecutor’s objection to that question.” The municipal court explainedto IvanJr. that lying under oath is serious and that he would notgetin trouble if he told the truth. Ivan Jr. answered affirmatively when the court asked if he understood those concepts. In response to the court asking if he had told lies during his testimony, Ivan Jr. answered in the negative. (PX 2:297.) The municipal court abusedits discretion by barring defense counsel from asking Ivan Jr. about what he believed the consequences of lying while testifying would be. Although thetrial court has the discretion to control cross-examination (e.g., People v. Eli (1967) 66 Cal.2d 63, 79), “Tc]ross-examinationto test the credibility of a prosecuting witness in a criminal case should be given widelatitude.” (Curry v. Superior Court (1970) 2 Cal.3d 707, 715.) “(T]he right to cross-examineincludes the opportunity to show that a witness is biased, or that the testimonyis exaggerated or unbelievable.” (Pennsylvania v. Ritchie, supra, 480 U.S.at pp. 51-52.) Nonetheless, under state law and the Sixth Amendment,a trial ® Before the prosecutor lodged the objection, Ivan Jr. answered, “Yes.” (PX 2:297.) -228- court may limit cross-examination of a prosecution witnessthat is marginally relevant, repetitive, or prejudicial. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680; People v. Carpenter (1999) 21 Cal.4th 1016, 1051.) The legitimate bases for limiting cross-examination were absent in this case. The question to which the court sustained an objection was highly relevant; Ivan Jr.’s credibility, ability to distinguish truth from falsity, and appreciation of the consequencesofnot testifying truthfully werethe principal subjects of Ivan Jr.’s cross-examination. Because Ivan Jr. was the only purported percipient witnessto the incident, testing Ivan Jr.’s credibility and capacity for telling the truth wascritical. The objected- to question wasnot repetitive. Trial counsel had not previously posed the question, whichtrial counsel asked in response to two answersIvan Jr. gave on the same pageofthe transcript. Lastly, the question was not prejudicial in any regard. Thus,thetrial court erred and violated appellant’s confrontation-clause rights under the Sixth AmendmentandarticleI, section 15 by sustaining the prosecutor’s objection to the question. The municipal court committed further evidentiary and constitutional error by asking Ivan Jr. leading questionsthat inevitably induced Ivan Jr. to testify that he had not lied during his testimony, he would get into trouble if he did lie, and would not get in trouble if he did not lie. The questions impermissibly undercut trial counsel’s cross- examination of Ivan Jr. It is hardly surprising that an eight-year-old child answered leading questions from the Municipal Court judge, an authority figure, in the expected manner. Oncethetrial court asked those questions, which yielded the intended answers, defense counsel had no legitimate opportunity to question Ivan Jr. further on topics related to Ivan Jr.’s -229- credibility. Any such questions would have been objectionable as repetitive. Further, the likelihood that Ivan Jr. would answer a question contrary to the answerhe had given the Municipal Court judge was low. 3. The Municipal Court’s Errors Impacted Appellant’s Trial By admitting Ivan Jr.’s preliminary hearing testimony into evidence, the trial court permitted the municipal court’s evidentiary errors and the related confrontation-clause violations at the preliminary hearing to infect the trial. These errors and infringements of appellant’s constitutional rights provide further basesforrelief. E. The Admission Of Ivan Jr.’s Preliminary Hearing Testimony Also Violated Appellant’s Constitutional Rights To A Fair Trial And To A Fair, Accurate, And Reliable Capital-Sentencing Determination Appellant’s confrontation-clause rights were not the only constitutional rights impacted by the trial court’s admission of Ivan Jr.’s preliminary hearing testimony. Appellant’s rights to a fair trial, guaranteed by the Fourteenth Amendmentto the United States Constitution and article I, sections 7 and 15 of the California Constitution, and rights to a fair, accurate, and reliable capital-sentencing determination, guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and article I, section 17 of the California Constitution, were also violated. The admission of Ivan Jr.’s preliminary hearing testimony, without a meaningful cross-examination or a face-to-face confrontation, rendered appellant’s trial fundamentally unfair. (See post, at pp. 231-235.) Furthermore,the admission ofthe preliminary hearing testimony tainted the finding of the torture-murder special circumstance, which wasthe lone basis for appellant’s death-eligibility, and thus the penalty determination wasnotfair, -230- accurate, or reliable. (See post, at pp. 235-236.) F. The Admission Of Ivan Jr.’s Preliminary Hearing Testimony Requires Reversal Of Appellant’s Conviction, The Special-Circumstance Finding, And The Death Judgment The admission of Ivan Jr.’s preliminary hearing testimony gravely prejudiced appellant. Appellant’s culpability was the principal contested issue in this case. Appellant and Veronica were the potential perpetrators, and there was a dearth of evidence showing which ofthem committed which acts. No percipient witness testified at trial. During appellant’s interrogation, appellant did not admit to committing any criminal acts. The prosecution sought to ameliorate the evidentiary gap by presenting Ivan Jr.’s preliminary hearing testimonyat the trial. Ivan Jr. was the only witness whotestified at any stage of the proceedings who waspresent inside appellant and Veronica’s apartment while acts were perpetrated against Genny. Accordingly, Ivan Jr.’s preliminary hearing testimony was critical to the prosecution’s case. At the guilt phase, the prosecutor relied extensively on Ivan Jr.’s preliminary hearing testimony. In his opening statement, the prosecutor explained that Ivan Jr.’s videotaped prior testimony would constitute one of three ways in which he would prove his case. (RT 50:5851-5852.) He said that Ivan Jr. was an eyewitness and outlined the testimony. (RT 50:5854-5857.) In his closing argument, the prosecutor placed great weight ™ The other two avenues by which the prosecutor said he would provehis case were forensic evidence and appellant’s interrogation. (RT 50:5851-5852.) However, the forensic evidence could not establish whether Veronica or appellant inflicted the injuries (RT 53:6526), and appellant did not admit to inflicting any of Genny’s injuries. -231- on Ivan Jr.’s_ preliminary hearing testimony. (RT 63:8095-8102.) He emphasizedthat Ivan Jr. testified that both appellant and Veronica ran the bath water and placed Gennyinto the bathtub with scalding hot water. (RT 63:8097-8098.) The prosecutor also highlighted the inconsistencies between Ivan Jr.’s preliminary hearing testimony and appellant’s statements during the interrogation and argued that appellant had lied when he denied handcuffing or binding Genny. (RT 63:8098.) The prosecutor credited the preliminary hearing testimony and arguedthat it was corroborated even where the testimony seemed implausible. (RT 63:8096-8102.) The erroneous admission of Ivan Jr.’s preliminary hearing testimony wasespecially prejudicial because of the confrontation-clause violations flowing from the testimony. Appellant’s counsel’s lack of access to information with which to impeach Ivan Jr.’s credibility at the time of the preliminary hearing, Ivan Jr.’s incompetence, the absence of a face-to-face confrontation, and the municipal court’s impermissible restriction of appellant’s cross-examination improperly bolstered the perception of Ivan - Jr.’s credibility. In view of IvanJr.’s role as the lone percipient witness to any of the acts against Genny, the inaccurate impression of Ivan Jr.’s credibility damaged appellant’s defense. The variouserrors relating to the admission of Ivan Jr.’s preliminary hearing testimony had a symbiotically prejudicial effect. The municipal court’s granting the prosecution request for an alternate seating arrangement without requiring the prosecution to make an evidentiary showing of necessity impeded appellant’s effort to test Ivan Jr.’s credibility. As stated above, the seating arrangement permitted Ivan Jr. to avoid looking at appellant without appearing to be averting his eyes from appellant. Although the seating arrangement might have been permissible if supported -232- by a case-specific showing of necessity, the absence of a showing allowed Ivan Jr. to testify without a face-to-face confrontation, yet not have his credibility challenged with the information that would have been revealed if the trial court had properly required the prosecution.to make an evidentiary showing. The showing of necessity required by Marylandv. Craig, supra, 497 U.S. at pp. 855-857, would haveentailed testimony regarding Ivan Jr.’s mental health that would have revealed that Ivan Jr. suffered symptomsthat ultimately led to a diagnosis of post-traumatic stress disorder and reported seeing a hallucination orillusion, and that Ivan Jr.’s foster mother spoke to Ivan Jr.’s therapist about his proclivity to lie. That information may have permitted appellant to have a meaningful opportunity to cross-examine Ivan Jr. effectively. Instead, appellant had neither a meaningful opportunity for effective cross-examination nor a face-to-face confrontation. Hadthetrial court not erroneously admitted Ivan Jr.’s preliminary hearing testimony pursuant to Evidence Code section 1291 or found Ivan Jr. competent, there is a reasonable probability that appellant would not have been convicted offirst degree murder.” (See People v. Watson (1956) 46 Cal.2d 818, 836.) As explained above, Ivan Jr.’s testimony wascritical to the prosecution’s case that appellant was culpable for Genny’s death, and the erroneous admission of the testimony impermissibly bolstered the appearanceofIvan Jr.’s credibility. The testimony of appellant’s alleged personal involvement impacted the jury deliberations in two fundamental ways. First, it exaggerated the jury’s impression of appellant’s personal > The July and October 1995 interviews of Ivan Jr. would not have been admissible if the preliminary hearing testimony had not been admitted at trial. The interviews were admitted as prior consistentand prior inconsistent statements. -233- involvementin the offense. Second, because the only path to finding intent to torture was through appellant’s conduct, Ivan Jr.’s testimony gave the jury an inflated sense of appellant’s alleged intent to torture. Moreover, the jury requested and received a VCRandtelevison during guilt-phase deliberations, and the videotaped testimony waskept in the jury room during the guilt-phase deliberations. (RT 63:8209; CT 9:2113; CT 62:13421-13422; CT 63:13489.1.) The jury likely used the VCRandtelevision to view Ivan Jr.’s preliminary hearing testimony again during the deliberations. That reveals the importance of the preliminary hearing testimony and showsthat the admission of the testimony had a significant impact on the guilt-phase deliberations. In addition, the question of appellant’s guilt was close (see ante, at pp. 85-87), and the admission of Ivan Jr.’s testimony likely tipped the scales in favor of conviction. Absent the erroneous admission of Ivan Jr.’s preliminary hearing testimony, the jury would havehadlittle basis from which to conclude that appellant had perpetrated or aided and abetted any of the violent acts against Genny and that appellant had intendedto torture her; thus, the jury probably would have found appellant not guilty of first degree murder. For these reasons, the prosecution cannot show that the various confrontation-clause violations resulting from the admission of Ivan Jr.’s preliminary hearing testimony were harmless beyond a reasonable doubt with respect to the murder conviction. (See Chapman v. California (1967) 386 U.S. 18, 24.) Exclusion of Ivan Jr.’s preliminary hearing testimony constitutes the remedy for the confrontation-clause violations. (See Crawford v. Washington, supra, 541 U.S.at pp. 68-69; Coy v. lowa, supra, 487 U.S. at pp. 1021-1022.) Because the testimony wascentral to the prosecution’s guilt phase case-in-chief, the prosecution cannot show that -234- the testimony had no effect on the verdict. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [“The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually renderedinthis trial was surely unattributable to the error.”] (emphasisin original).) Moreover, the evidence that appellant was personally culpable for Genny’s death was not overwhelming(see ante, at pp. 85-88); consequently, this error cannot be found harmless under the overwhelming-evidence test. (See Harrington v. California (1969) 395 U.S. 250, 254.) Likewise,it is reasonably probable that the jury would not have found the torture-murder special circumstanceifthe trial court had not erroneously admitted Ivan Jr.’s preliminary hearing testimony or found Ivan Jr. competent. The testimony, which lacked meaningful adversarial testing, insinuated that appellant participated in the abuse and homicide of Genny. Because Ivan Jr.’s preliminary hearing testimony wasthe prosecution’s strongest evidence of appellant’s alleged personal commission of criminal acts, the jury likely inferred appellant’s intent to torture andintent to kill from this fundamentally flawed evidence of appellant’s purported participation.’© Thus, the special circumstance cannotbe sustained because there is a reasonable probability that the jury would not have found the torture-murder special circumstanceifthe trial court had not erred. (See People v. Watson, supra, 46 Cal.2d at p. 836.) The confrontation-clause violations emanating from Ivan Jr.’s preliminary hearing testimony further require vacating the torture-murder ’® For the purposes of this argument, appellant assumes arguendo that the jury foundintent to kill. (But see ante, Claim VI.) -235- special circumstance. Because Ivan Jr.’s testimony wascrucialto the prosecution’s case, the admission of the preliminary hearing testimony, which infringed appellant’s rights to a meaningful opportunity for effective cross-examination and a face-to-face confrontation, had an effect on the special-circumstance verdict. (See Chapmanv. California, supra, 386 U.S. at p. 24.) Furthermore, the evidence that appellant intended to torture and kill Genny was far from overwhelming. (See ante, at p. 89.) As a result, the error cannot be deemed harmless under the overwhelming-evidencetest. (See Harrington v. California, supra, 395 U.S.at p. 254.) Finally, vacating the murder conviction or the torture-murder special circumstances requires vacating the death judgmentas well. The combinationofthe conviction and special-circumstance finding comprised the lone basis for appellant’s death-eligibility. -236- X THE ADMISSION OF VERONICA GONZALES’S HEARSAY STATEMENTS TO HER BROTHER-IN- LAW WASERROR THAT INFRINGED APPELLANT’S CONFRONTATION RIGHTS At the guilt phase ofthe first trial, the prosecutor presented the testimony of Veronica’s brother-in-law, Victor Negrette, to rebut the extensive evidence that Veronica had abused appellant on many occasions. Over a defense objection, Victor testified that Veronica told him that appellant had hit her on one occasion. The court erred and violated appellant’s confrontation rights by admitting this evidence. A. Facts And Procedural History During the prosecution’s guilt-phase rebuttal, Victor Negrette testified that Veronica, when living with appellant in Chula Vista, phoned Victor and Veronica’s sister Anita, and that in response to the phonecall, they drove from their home in Corona to Chula Vista. (RT 60:7711.) Victor recalled that Veronica was crying during the telephonecall and asked them to pick her up. (RT 60:7711-7712, 7717.) Victortestified that Veronicastated that, earlier in the day, she and appellant had been fighting and that Victor believed Veronica stated that appellant had hit her. (RT 60:7717-7718.) On the drive betweenChula Vista and Corona, Veronica wascrying andsaid that appellant had hit her. (RT 60:7718-7720.) The trial court admitted this testimony pursuant to Evidence Code section 1240 despite numeroushearsay objections.” (RT 60:7716-7720.) Appellant subsequently moved for a mistrial on confrontation-clause grounds, and the court, explaining that it properly admitted the hearsay testimony, denied the ” The prosecution did notelicit this evidence at the penalty retrial. -237- motion. (RT 60:7780-7781.) B. The Trial Court’s Ruling Was Erroneous Thetrial court abused its discretion by admitting Veronica’s hearsay statements. The prosecution did not meet the foundational requirements for the spontaneous-statement hearsay exception. (See People v. Morrison (2004) 34 Cal.4th 698, 724 [proponent of hearsay has burden of establishing foundational requirements of hearsay exception].) A hearsay statement is not admissible under the spontaneous-statement exception unless “the utterance [was made] before there has beentimeto contrive and misrepresent.” (People v. Poggi (1988) 45 Cal.3d 306, 318, quoting Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468; see also, Evid. Code, § 1240.) The record provides no indication that Veronica uttered either of her hearsay statements sufficiently. close in time to her altercation with appellant. Victortestified that Veronica told him that she and appellant had fight earlier on the day that she called him. Over the course of a day, a hearsay declarant has more than enoughtimeto contrive and misrepresent what had occurred; thus, evidence that the hearsay statement was made on the samedayas the occurrence wasinsufficient to meet the foundational requirement for the spontaneous-statement hearsay exception. (See People v. Ramirez (2006) ___Cal.App.4th__, __, 50 Cal.Rptr.3d 110, 116-120; In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1130.) There is no evidence that Veronica’s “reflective powerswerestill in abeyance”orthat her physical condition “inhibit[ed] deliberation” when she madethe hearsay statements. (People v. Raley (1992) 2 Cal.4th 870, 893- 894.) Accordingly, the trial court should not have admitted Veronica’s hearsay statements into evidence. -238- C. The Admission Of The Evidence Infringed Appellant’s Constitutional Rights To Confront Adverse Witnesses Thetrial court’s ruling violated appellant’s confrontation rights, which are protected bythe Sixth and Fourteenth Amendments to the United States Constitution andarticle I, section 15 of the California Constitution. Veronica’s hearsay statements accused appellant of having hit herearlier in the day. As such, she sought to have them conclude that appellant had battered her. Although a “solemn declaration or affirmation made for the purposeof establishing or proving somefact” is the epitome of testimonial hearsay (see 2 N. Webster, An American Dictionary ofthe English Language (1828), quoted in Crawford v. Washington (2004) 541 U.S.36, 51), unsworn statements to police officers not made during an emergency also constitute testimonial hearsay. (See Davis v. Washington (2006) __ U.S. _, 126 S. Ct. 2266, 2278-2279; Crawford, 541 U.S. at pp. 52-53.) Despite the fact that Veronica made the statement to her sister and brother- in-law, rather than the police, it was a testimonial statement that fell within the ambit of the confrontation clause. (See Davis, 126 S. Ct. at p. 2274, fn. 2 [explaining that the universe of testimonial statements maynotbe limited to statements made to law-enforcement officers].) Due to its accusatory nature, Veronica’s hearsay statement wasa far cry from the casual remark to an acquaintance that the United States Supreme Court has deemed the epitome of non-testimonial hearsay. (See Crawford, 541 U.S.at p. 51.) Rather, the hearsay statement was testimonial and, by admitting it into evidence whenappellant had no opportunity to cross-examine Veronica, the court violated appellant’s rights under the confrontation clause. (Seeid.at pp. 53-54.) If this Court deems Veronica’s statements to be nontestimonial, the -239- admission ofthose statements nevertheless violated appellant’s confrontation-clause rights. The confrontation clause forbids the introduction of nontestimonial hearsay evidence, such as Veronica’s statement, against a defendant unless that statementis reliable. (See Ohio v. Roberts (1980) 448 U.S. 56, 66.) Despite the United States Supreme Court’s partial overruling ofRoberts for testimonial hearsay, Roberts continues to govern the confrontation-clause analysis of nontestimonial hearsay. (People v. Corella (2004) 122 Cal.App.4th 461, 467 [holdingthat. the Roberts reliability test continues to govern admission of nontestimonial hearsay]; United States v. Thomas (7th Cir. 2006) 453 F.3d 838, 844 [same]; Compan v. People (Colo. 2005) 121 P.3d 876, 881-882 [explaining that United States Courts of Appeals and state courts oflast resort have universally concluded that Roberts controls confrontation clause analysis of nontestimonial hearsay].) Although spontaneousdeclarationstypically fall “within a firmly rooted hearsay exception” (Roberts, 448 U.S.at p. 66; see also, White v. Illinois (1992) 502 U.S. 346, 357), the record lacked indications that Veronica’s statement was sufficiently close in time to the incident she purported to describe for it to come within the ambit of the traditional excited-utterance hearsay exception. The trial court’s conclusion that Veronica’s remarks were spontaneous statements does not establish underthe confrontation clause that the hearsay declarations fit a firmly rooted hearsay exception. (See Lilly v. Virginia (1999) 527 US. 116, 125.) Moreover, the prosecution made no “showingofparticularized guarantees of trustworthiness” regarding the hearsay statements that would have otherwise permitted the admission of the statements without infringing appellant’s confrontation rights. (Roberts, 448 U.S.at p. 66.) -240- D. The Error Was Prejudicial This Court should reverse the conviction, special-circumstance finding, and death judgment, due to the state-law error and confrontation- clause violation stemming from the admission of Veronica’s hearsay statement. | It is reasonably probable that appellant would not have been convicted and the jury would not have found the torture-murder special circumstanceifthe trial court had excluded the hearsay. (See Peoplev. Watson (1956) 46 Cal.2d 818, 836.) To explain why appellant neither participated in nor stopped the abuse of Genny, appellant presented evidence that he was a battered spouse. The admission of Veronica’s hearsay statements, however, created the appearance that the spousal abuse was a two-waystreet. At the trial, this hearsay comprised the only evidence that appellant had ever used force against Veronica. At the guilt-phase summation and rebuttal, the prosecutor used this evidence to argue that appellant was not a battered spouse andthat appellant and Veronica beat each other. (RT 63:8069, 8073, 8160-8162, 8174.) The improper admission of the hearsay evidence thus weakenedappellant’s arguments that he did not participate in the offense or intend to kill and was thus not guilty of murder and that he lacked the intent to torture or kill required for the special-circumstance finding. Furthermore, respondent cannot show that the error was harmless beyonda reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) The hearsay evidence transformed the jury’s perception of appellant from spousal-abuse victim to spousal-abuse perpetrator. Evidence of appellant’s guilt, participation, and intent to torture and kill was far from overwhelming, and this was a close case. (See ante, at pp. 85-89.) The -241- admission of the hearsay evidence could havetippedthe balance in favor of a conviction or special-circumstance finding. Because the conviction and special circumstance formed the lone basis for finding appellant death-eligible, vacating either the conviction or special-circumstance finding requires vacating the death judgment. -242- XI THE ADMISSION OF THE VIDEOTAPE OF THE POLICE OFFICERS’ CUSTODIAL INTERROGATION OF APPELLANT VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS On the morning after Genny’s death, after appellant had been up inordinately late following his arrest, Detectives Larry Davis and Richard Powerssought to interrogate appellant. Although appellant did not validly waive his privilege against self-incrimination orhis right to counsel, Detectives Davis and Powers interrogated appellant for two-and-a-half hours. In the absence of a valid waiver, appellant’s statements made during the interrogation were inadmissible. Thetrial court’s denial of appellant’s suppression motion infringed appellant’s constitutional rights and constituted reversible error. A. Facts And Procedural History Detectives Davis and Powers began interrogating appellant at 9:43 a.m. on July 22, 1995. (RT 55:6781.) Detective Powers began the interrogation by asking appellant several introductory questions. (CT 8:1753-1755.) He then told appellant that he had already spoken to Veronica and had seen Genny and the apartment. (CT 8:1755-1756.) Detective Powers next said that he wanted to get appellant’s side of the story. Afterward, he read appellant most of the Miranda warnings. (CT 8:1756.) Detective Powers then asked appellant if he wantedtotell his side of the story. When appellant hesitated, Detective Powerssaid that he had already spoken to Veronica and knew what had happened, and he would like to get appellant’s side of the story. He said that in court appellant’s statement would be compared to Veronica’s and asked appellant if he wantedto tell him what happened. Appellant said, “Um, well, I,” but -243- Detective Powers cut him off and, without waiting to see whether appellant would waive his Miranda rights, launched into the interrogation. (RT 8:1757.) Priorto trial, appellant moved to suppress his statements to the police made during the interrogation. (CT 2:338-346.) Thetrial court recognized that appellant did not expressly waive his Miranda rights. (RT 15:1422, 1430.) The court nevertheless concluded that appellant made a conscious decision to answerthe detectives’ questions and impliedly waived his Miranda rights. (RT 15:1431-1432.) The court thus denied the suppression motion. (CT 6:1210.) The prosecution presented the videotape of the interrogation in its case-in-chief at the guilt phase and at the penalty retrial. (RT 54:6761; RT 55:6771-6772; RT 94:11786-11787, 11810; Peo. Exh. 66-68, 111.) B. Appellant Did Not Validly Waive His Privilege Against Self-Incrimination And His Right To Counsel Although “mere silence is not enough”to constitute an implied waiver ofMiranda rights (North Carolina v. Butler (1979) 441 U.S. 369, 373), Detectives Davis and Powers unlawfully equated appellant’s silence with a waiver and improperly interrogated appellant in the absence ofa waiver. Even though a course of conduct mayindicate that a defendant has waived his Mirandarights, the prosecution did not meetits “great” burden of overcoming the presumption against waiver and showing that a waiver should have been “clearly inferred” from appellant’s actions. (/bid.) In North Carolina v. Butler, supra, 441 U.S.at p. 371, the defendant, despite refusing to sign a Miranda waiver form,explicitly expressed a willingnessto talk to the interrogating officers. In that case, the defendant’s stated willingness to talk to the police provided as strong an -244. indication of a knowing, voluntary, and intelligent waiver as an explicit waiver would have. In this case, appellant never articulated any agreement to speak to his interrogators. Appellant answering questions was not sufficient to demonstrate waiver. The United States Supreme Court has explained that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” (Miranda v. Arizona (1966) 384 U.S. 436, 475.) Yet, the trial court found an implied waiver from appellant’s silence and the fact that the police eventually obtained statements from appellant. Although this Court hasfound implied waivers from the mere fact that a suspect answered questions that the police posed during an interrogation (see, e.g., People v. Whitson (1998) 17 Cal.4th 229, 250), this Court should not uphold the trial court’s finding of an implied waiverin this case. By finding an implied waiver ofMiranda rights whenever a suspect makes statements to the police, this Court has lowered the burden of demonstrating an implied knowing, voluntary, and intelligent waiver that the United States Supreme Court established in Miranda and Butler. Indeed, if the absence of an invocation ofMiranda rights plus a statement automatically equate with an implied waiver, then the absence of an explicit waiveris rendered immaterial. | Moreover, Detective Powers misled appellant by telling him that a court would use Veronica’s statements against appellant and imploring appellant to speak to the police so the court would not determine appellant’s fate based on Veronica’s, but not appellant’s, description of events. It would be farfetched to assumethat appellant knew that Veronica’s statements could not lawfully be admitted against him in court. The -245- police’s chicanery, though it does not render appellant’s statements involuntary per se, further demonstrates that appellant did not impliedly waive his Miranda rights. (See Frazier v. Cupp (1969) 394 U.S. 731, 739; People v. Nitschmann (1995) 35 Cal.App.4th 677, 682 [finding implied waiverin part because interrogators did not mislead suspect].) C. The Conviction, Torture-Murder Special Circumstance, And Death Judgment Must Be Vacated The erroneous admission ofthe interrogation prejudiced appellant. At both the guilt phase andthe penalty retrial, the admissions appellant madeduring his interrogation comprised the centerpiece ofthe prosecution’s case that appellant waspersonally culpable of the offense against Genny. Atthe guilt phase, appellant’s admissions and IvanJr.’s preliminary hearing testimony provided the only evidence suggestingthat appellant, rather than only Veronica, was guilty. (RT 63:8033.) The prosecutor devoted twenty-three reporter’s transcript pages of his closing argumentto extrapolating appellant’s guilt from the statements. (RT 63:8043-8044, 8056-8072, 8097-8099, 8103.) At the penalty retrial, the prosecution did not introduce Ivan Jr.’s videotaped preliminary hearing testimony or earlier taped statements; consequently, appellant’s interrogation was the only evidence presented at the penalty retrial intimating that appellant had participated in the offense. The prosecutor focused on the interrogation at the closing argument, during which he played a videotape of excerpts of the interrogation and againallocated twenty-three pages of his argumentto inferring appellant’s participation from those statements. (RT 99:12760, 12774, 12785-12803, 12814, 12848; Peo. Exh. 111.) At both the guilt phase and the penalty retrial, appellant’s guilt and participation were hotly contested, and this was a close case. (See -246- ante, at pp. 85-87, 93-94.) Thus, respondent cannot showthat the admission of the unlawful interrogation was harmless beyond areasonable doubt with respect to the jury verdicts and special-circumstance finding. (See Arizona v. Fulminante (1991) 499 U.S. 279, 312; Satterwhite v. Texas (1988) 486 U.S. 249, 258- 259; Chapmanv. California (1967) 386 U.S. 18, 24.) The conviction, special-circumstancefinding, and death judgment must be vacated. -247- XII THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE PHOTOGRAPHS AND A MANNEQUIN OF GENNY ROJAS, AND THE TRIAL COURT’S RULING INFRINGED APPELLANT’S CONSTITUTIONAL RIGHTS Theprosecution soughtto introduce a slew of autopsy and crime- scene photos, as well as two photos of Genny while she wasalive and life- sized mannequin of her. The trial court admitted the mannequin and virtually all of the photos at the guilt phase of thefirst trial and at the penalty retrial. Because these items of demonstrative evidence were inflammatory and gruesome,thetrial court’s failure to exclude them under Evidence Code section 352 for being unduly prejudicial was error. These erroneous evidentiary rulings deprived appellantofhis rights to a fair trial and fair and reliable capital-sentencing determination. A. Facts And ProceduralHistory Several monthspriorto trial, appellant filed a pretrial motion to limit photographic evidence, which Veronica joined and the prosecution opposed. (CT 2:330-337; CT 5:1079-1103; CT 54:11950-11951.) After initially deferring ruling on the motion until the prosecution selected the photosthat it wished to introduce (CT 6:1209-1212; RT 15:1357), the court heard the motion (RT 34:3497-3631; RT 35:3654-3667). After reviewing the 52 autopsy and crime-scene photosthat the prosecution soughtto presentattrial, the trial judge said that these were the most gruesome photoshe had seen in the 25 years he had practiced criminal law and that they emotionally impacted him. (RT 34:3507, 3576.) Nevertheless, the court ruled that all of the autopsy and crime-scene photos of Genny were admissible, that one live photo of Genny was admissible, and that all but -248- three of the other crime-scene photos were admissible.”* (RT 34:3507- 3508, 3562-3563, 3574-3577, 3623-3630; RT 35:3654-3655, 3667; RT 51:6019.) The court admitted these photosinto evidenceat the guilt phase of the first trial and at the penalty retrial. (CT 10:2332-2338; CT 12:2683- 2687.) After the prosecution surprised the defense by introducinga life- sized mannequin of Genny, appellant movedfor a mistrial; however, the ‘court determined that the mannequin was admissible and denied the motion. (RT 51:6090-6093.) B. The Admission of The Photographs Was Error Thetrial court abusedits discretion by admitting the autopsy and crime-scene photographsintroduced by the prosecution. When photographs’ prejudicial impact clearly outweighs their probative value, a court’s admission ofphotos constitutes an abuse of discretion. (Peoplev. Ramirez (2006) 39 Cal.4th 398, 453-454.) That occurred in this case. The grave prejudicial impact of the autopsy and crime-scene photographs clearly outweighed the photos’ probative value. The photos were remarkably graphic. Thetrial judge, who had extensive experience as a Deputy Attorney General representing respondentin capital cases, remarked that these were the most gruesome photoshe had ever seen and discussed their emotional impact. During voir dire, countless prospective jurors commented on the photographs’ hideousness. Priorto trial, the prosecutor expressed concern that merely showing the photos of Genny to prospective jurors would cause them to shut down emotionally. (RT 37:3995.) 8 Theserulings stayed in effect at the penalty retrial. (RT 75:9383; RT 81:9551.) -249- In addition to the photographs’ unusually severe gruesomeness, the risk of prejudice wasparticularly high because the homicide occurred in appellant’s home, but the evidence that appellant had perpetrated it was questionable. The photos impededthe jury from evaluating dispassionately the evidence pointing toward and against appellant’s guilt of first degree murder. The admission of the photos into evidence permitted the prosecutor to argue that appellant’s participation was inevitable because he could not have seen Veronica torture Genny and not haveparticipated in perpetrating the offense. (RT 99:12783, 12840.) Furthermore, studies have recognized that graphic photographs have the powerto arouse jurors’ emotions. “Juries are comprised of ordinary people whoare likely to be dramatically affected by viewing graphic or gruesomephotographs.” (Rubenstein, A Picture Is Worth a Thousand Words — The Use ofGraphic Photographs as Evidence in Massachusetts MurderTrials (2001) 6 Suffolk J. Trial & Appellate Advoc. 197; see, Douglas et al., The Impact ofGraphic Photographic Evidence on Mock Jurors’ Decisions in a MurderTrial: Probative or Prejudicial? (1997) 21 Law & Hum.Behav.485, 491-492 [documenting jurors’ emotional reactions to viewing graphic photographs of murdervictim]; Kelley, Addressing Juror Stress: A Trial Judge’s Perspective (1994) 43 Drake L.Rev. 97, 104 [recounting juror’s posttraumatic-stress symptoms experienced after viewing graphic photos of murder victim].) Studies also show that graphic photographsinfluence the verdicts that juries return. (Miller & Mauet, The Psychology ofJury Persuasion (1999) 22 Am.J. Trial Advoc. 549, 563 [juries that viewed autopsy photographs during medical examiner’s testimony were morelikely to vote to convict defendant than those not shown photographs]; Douglaset al., supra, 21 Law & Hum. -250- Behav.at p. 492-494 [same].) The prejudicial effect of the autopsy and crime-scene photosclearly outweighed the photos’ probative value. The photos were cumulative to the testimony of Dr. Eisele, the deputy medical examiner, Dr. Feldman,the burn expert, and Dr. Sperber, the forensic odontologist, as well as the testimony of the lay witnesses who saw Gennyat the apartment complex. Although autopsy and crime-scene photographscan illuminate testimony, the photos’ capacity to assist the jury’s understanding of the expert testimony could notrival their power to prejudice the jury. Accordingly, the trial court erred in admitting the autopsy and crime-scene photos. In addition, the trial court abusedits discretion in admitting Exhibit 20, the photo of Genny taken in a Halloween costume in 1994. This Court has repeatedly recognizedthat trial courts should proceed cautiously with the possible admission ofphotos taken of murder victims while they were alive becauseofthe inherent capacity of those photos to arouse sympathy. (E.g., People v. Harris (2005) 37 Cal.4th 310, 331.) Thetrial court said that the Halloween photo, which showed Genny wearing what appeared to be angel wings, was “most dramatic” and showedherto be “a cute little tot.” (RT 34:3535.) Testimony from Paul Gaines, the social worker assigned to Genny while she was in Utilia Ortiz’s custody, would have sufficed to convey to the jury that Genny wasnotvisibly injured when he saw herliving with her maternal grandmother. The prejudicial impact of the sympathy-inducing photo dwarfed the marginal probative value that the © photo addedto the prosecution’scase. C. The Admission Of The Mannequin Was Error Thetrial court also abusedits discretion by admitting the life-sized mannequin into evidence. Unlike a mannequin ofan adult, a 38-inch -251- mannequinof a 41-year-old girl has the powerto arouse jurors’ emotions and sympathy. Thus, the mannequin wasprejudicial. The prejudicial effect clearly outweighedthe probative value stemming from the prosecutor’s use of the mannequin to theorize how one of Genny’s injuries may have been inflicted. D. The Court’s Rulings Violated Appellant’s Constitutional Rights The admission ofthese photographsalso infringed appellant’s Fifth, Eighth, and Fourteenth Amendmentrights, as well as his rights guaranteed by article I, Sections 7, 15, and 17 of the California Constitution, to a fair trial and a reliable capital-sentencing proceeding. Although violations of state evidentiary principles generally do not implicate the federal and state constitutions, in this case the admission of the shocking, gruesome photographs and the mannequin prevented appellant from getting fairtrial and thus violated appellant’s constitutional rights. (See Lisenba v. California (1941) 314 U.S. 219, 228 [recognizing state court’s admission of prosecution evidence thatinfuses trial with unfairness would violate defendant’s right to due process of law].) . “Tn the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause ofthe Fourteenth Amendmentprovides a mechanism forrelief.” (Payne v. Tennessee (1991) 501US. 808, 825.) Admitting photographs as graphic as the onesin this case, whichthetrial judge said were the most gruesomehe hadseenin 25 years of practicing criminal law, renderedthe photographs unduly prejudicial and caused appellant’s trial to be fundamentally unfair. The admission of the mannequin also madethetrial fundamentally unfair. -252- Thetrial court exacerbated the unfairness of the trial by treating the prosecution’s demonstrative evidence disparately from appellant’s demonstrative evidence. The court gave the prosecutor free reign to admit its graphic autopsy and crime-scenephotos, yet barred appellant from presenting his four youngest children to the jury. (See ante, Claim IV.) This disparate treatment was fundamentally unfair and formed a separate violation of appellant’s due processrights. The admission of the gruesome photographs and mannequin at the penalty retrial also violated appellant’s right to a fair and reliable capital- sentencing determination. (See Woodson v. North Carolina (1976) 428 U.S. 280, 305 [requiring heightenedreliability for capital-sentencing determination].) “It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” (Gardner v. Florida (1977) 430 U.S. 349, 358.) The admission of the photographs and mannequin openedthe floodgates for jurors’ emotions, rather than their reason, to guide the penalty-phase deliberations and verdict. As discussed above,there is a great danger that when exposed to photographslike those at issue here, jurors will foreclose consideration of other evidence and rendertheir verdict based upon the emotional impact of the photographs and mannequin. Theresult ofthis is the failure to consider mitigating evidence, which offends Eighth Amendmentprinciples. (See Hitchcockv. Dugger (1987) 481 U.S. 393, 398-399; Skipper v. South Carolina (1986) 476 USS. 1, 4; Eddings v. Oklahoma (1982) 455 U.S. 104, 114.) E. The Conviction, Torture-Murder Special Circumstance, And Death Judgment Must Be Vacated The admission of the photos and mannequin wasreversible error. -253- As explained above, the autopsy and crime-scene photos were highly prejudicial. The nature of the injuries inflicted on Genny wasnotin dispute. However, at both the guilt phase and the penalty retrial, appellant’s involvement in the infliction of the injuries was hotly contested, and this wasa close case, for which the evidence against appellant was not overwhelming. (See ante, at pp. 85-88, 93-94, 98.) Accordingly,it is reasonably probable that the jury would not have convicted appellant or found the torture-murderspecial circumstanceifthe court had not erroneously admitted the photos and mannequin. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Likewise, it is reasonably possible that the jury at the penalty retrial would not have returned a death verdictin the absence ofthe error. (See People v. Brown (1988) 46 Cal.3d 432, 448.) Furthermore, the respondent cannot show that the admission of the photos and mannequin was harmless beyond a reasonable doubt. (See Satterwhite v. Texas (1988) 486 U.S. 249, 258-259; Chapman v. California (1967) 386 U.S. 18, 24.) Accordingly, the conviction, special-circumstance finding, or death judgment cannotbe upheld. -254- XII APPELLANT’S CONVICTION AND THE SPECIAL- CIRCUMSTANCEFINDING WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE The prosecution’s evidencein this case contained a fundamental flaw: No evidence established what had occurred behind the closed doors of appellant and Veronica’s apartment. The prosecution soughtto fill the gaping hole in its proof through conjecture and speculation. Neither can sustain the murder conviction and torture-murder special circumstance. Evidence that appellant participated in the offense or intendedto torture and kill Genny wasinsufficient. At the close of the prosecution’s case-in-chief at the guilt phase, appellant moved for a judgment of acquittal pursuant to Penal Code section 1118. The court denied the motion. (RT 56:6911-6913.) That ruling was error. In addition, the conviction and special-circumstance finding based on insufficient evidence violated appellant’s due process rights and thereby presents a related but separate basis for reversing the conviction and special circumstance, as well as the death sentence. (See Jn re Winship (1970) 397 US. 358, 364.) A. The Evidence That Appellant Perpetrated The Offense WasInsufficient Althoughthe evidenceleft little doubt that Genny had been mistreated and killed in appellant and Veronica’s apartment, it provided few indications ofwho wasculpable. The forensic evidence provided no hint of the perpetrator’s identity (RT 53:6526). Appellant’s admissions gave no sign that he was culpable for unlawful activity. Ivan Jr.’s direct examination testimony that appellant, along with Veronica, had bathed Genny on the day she died was the only evidence from a percipient witness -255- that appellant was culpable for Genny’s death; however, on cross- examination, hetestified that the bath had occurred on the previous day and that he did not see appellant put Gennyin the bathtub on the night of her death. (PX 2:236, 293.) Even viewing the evidence in the light most favorable to the judgment(e.g., People v. Lewis (2006) 39 Cal.4th 970, 1044), the evidence that appellant was either the primary perpetrator or an aider and abettor was not sufficient to support the conviction. Given the dearth of evidence implicating appellant, his guilt could not have been established through reasonable inferences from the evidence. B. The Evidence That Appellant Intended To Torture WasInsufficient Both the torture-murdertheory offirst degree murder and the torture-murder special circumstance require proofof “intent to inflict extreme pain.””? (People v. Cole (2004) 33 Cal.4th 1158, 1197; see also, People v. Davenport (1985) 41 Cal.3d 247, 271.) Evidence that appellant possessed this mens rea was lacking. Although evidence of intentto torture might have been reasonably imputed to the person whoinflicted the majority of abusive acts against Genny, the evidence that appellant personally victimized her was, at best, minimal. Appellant’s admission to intending to scare Genny with nonviolentactions did not provide an adequatebasis for a rational trier of fact to infer reasonably that appellant intendedto inflict extreme pain. Similarly, it would not have been reasonable for the jury to infer an intent to torture from Ivan Jr.’s ” The semantic differences in the intent-to-torture elements of murder by torture and the torture-murder special circumstance do not impactthis claim. -256- implausible allegations, unsupported by the forensic evidence,that appellant and Veronica made Gennyeat her feces, used a knife to rip out her skin, or engaged in other abusive behaviors. Consequently,the evidence that appellant intended to torture Genny wasinsufficient. C. The Evidence That Appellant Intended To Kill WasInsufficient At several points during these proceedings,the trial court stated that whether appellant possessedthe intent to kill was the weakest component of the prosecution’s case at the guilt phase. (RT 20:1747; RT 56:6903, 6912.) The court’s assessment was accurate. The evidence that appellant intended to kill Genny was not sufficient to support the torture-murderspecial circumstance. Asstated above and elsewhere, the evidence that appellant personally perpetrated the offense was weak. Thetrial court instructed the jury on aiding and abetting (CT 10:2256), and the jury may well have convicted appellant on an aiding-and-abetting theory. Accordingly, appellant’s alleged intent to kill cannot be inferred from the conduct against Genny. Even if the person who committed mostorall of the abusive acts against Genny had intendedto kill her, evidence that appellant was that person wasinsufficient. Also, there was a dearth of evidence that appellant, as an aider and an abettor, possessed the requisite intent to kill. Moreover, evidence that the primary perpetrator had intendedto kill Genny wasdeficient. Neither the act that caused the death, nor otheracts, provided a reasonable basis from which to infer an intentto kill. Genny died from being burned for between one to ten seconds by water that had flowed from the bathtub faucet. It is quite unlikely that an unsophisticated person — andthereis no indication in the record that Veronica or appellant -257- were sophisticated — would be awarethat the fleeting exposureto the hot water in the bathtub would befatal. Likewise, the most culpable explanation for Genny’s subdural hematomatoherbrain, that she was thrown hard against a mattress, does not suggest that the person who inflicted the injury harbored an intentto kill. Death seemedlike an extraordinarily unlikely result of those actions. Additionally, despite being bizarre and disturbing, hanging Genny from a hook,from whereshehad the ability to support herself and avoid asphyxia, was unlikely to cause death. This case presents the converse of the deadly weapon doctrine: Unlike a case in which a perpetrator’s intent to kill could be inferred from a use of a deadly weapon in a mannerlikely to have been for a deadly purpose (see Oberer, The Deadly Weapon Doctrine-Common Law Origin (1962) 75 Harv. L. Rev. 1565), in this case the means used to inflict death were so unlikely to cause death that an intentto kill could not be reasonably inferred from the actus reus. Significantly, neither appellant nor Veronica made any remark that hinted that either person had intended to kill Genny. Thus, conductis the only route from whichintent to kill could be inferred. | Furthermore, the jury did not find that the prosecution had proven appellant’s intent to kill beyond a reasonable doubt. (See ante, Claim VI.) Typically, an appellate court determines a sufficiency claim by “[v]iewing the evidence in the light most favorable to the verdict.” (People v. Cervantes (2001) 26 Cal.4th 860, 866.) However, in this case there is no valid verdict to which a reviewing court should defer. Accordingly, finding this claim to be meritorious would not require a conclusion that the jury’s determination was unreasonable orirrational; the jury never determined in the first instance whether appellant possessed an intentto kill. -258- D. The Conviction, Special-Circumstance Finding, And Death Sentence Must Be Reversed Because the evidence supporting the conviction and torture-murder special circumstance wasinsufficient, this Court should reverse the conviction and special-circumstance finding. The reversal of the conviction or the torture-murder special circumstance renders appellant ineligible for the death penalty; therefore, this Court must also reverse the death sentence. -259- XIV THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT DURING HIS GUILT-PHASE CLOSING AND REBUTTAL ARGUMENTS In his exuberance to win a conviction and special-circumstance finding, the prosecutor suggested that he had knowledge of extra-record evidence and demonized appellant. The prosecutor’s arguments constituted misconduct that deprived appellant of a fair trial and infringed his confrontation-clauserights. A. Facts And Procedural History During the defense closing argumentat the guilt phase, appellant’s counsel arguedthat Ivan Jr.’s description of events changed markedly between the days after Genny’s death and the preliminary hearing because he had been influenced by manypeople, including his foster mother, therapist, and teenage probationers whowereliving in his foster home. (RT 63:8145-8150.) In rebuttal, the prosecutor, contending that Ivan Jr.’s testimony had not been coached, asked, “Why not call Bruce Campbell, the guy who’sat the prelim, the man whois sitting next to Ivan, Jr., when he wastestifying? Why not call him?” (RT 63:8165.) After the court overruled a defense objection that the prosecutor was impermissibly placing a burden ofproof on appellant, the prosecutor added, ““Why don’t they call the process servers? Why don’ttheycall Ivan, Jr.’s psychologist? Why don’t they call whatever? Why don’t they do something aboutthat? Because they’re all going to denyit.” (RT 63:8165-8166.) The court sustained the defense objection to the prosecutor referring to purported facts outside the record and admonishedthe jury that it should not consider the speculative argument for which there was no evidence. (RT 63:8166.) In addition, the prosecutor at his guilt-phase closing argument -260- asserted, “[Appellant’s] conduct is so egregious that I have no problem comparing him to a person like Hitler [objection lodged] or the [objection sustained] conduct that was embraced in Bosnia.” (RT 63:8031 .) The court thereafter sustained another defense objection. (/bid.) Shortly afterward, the prosecutor argued, “He’s Ivan the Terrible. He was the camp | commandant[objection lodged and overruled] and this was a campaign of terror.” (RT 63:8032.) B. The Prosecutor Committed Misconduct The prosecutor’s arguments constituted two strands of misconduct. In his rebuttal argument, the prosecutor improperly argued that several people, if they had been witnesses, would havetestified that Ivan Jr.’s preliminary hearing testimony had not been coached. This referenceto purported facts outside the record to bolster a prosecution witness’s credibility was improper. (See People v. Turner (2004)34 Cal.4th 406, 432-433; People v. Frye (1998) 18 Cal.4th 894, 976.) Likewise, the prosecutor’s comparisons of appellant to Adolf Hitler and Slobodan Milosevic were impermissible. (See State v. Pennington (N.J. 1990) 575 A.2d 816, 831-832 [holding prosecutor’s use of epithets constituted misconduct].) Although this Court permits prosecutors to use, in argument, opprobrious terms that have evidentiary support (People v. McDermott (2002) 28 Cal.4th 946, 1002), the prosecutor, by comparing appellant to two infamousarchitects of genocide, exceeded the boundsofpermissible argument. (See State v. Walters (N.C. 2003) 588 S.E.2d 344, 366.) Despite the shared first name, the comparison of appellant to Ivan the Terrible was similarly improper; there was no evidentiary basis upon which to compare appellant to a despot whoordered that all the inhabitants of an entire large city be killed. The camp commandantepithet also was misconduct, -261- particularly because the prosecutor called appellant a camp commandant | shortly after comparing appellant to Hitler. In addition to lacking evidentiary support, all ofprosecutor’s vituperation constituted improper appeals to the jurors’ emotions. (See People v. Fosselman (1983) 33 Cal.3d 572, 580-581; People v. Jones (1970) 7 Cal.App.3d 358, 363.) C. The Prosecutorial Misconduct Infringed Appellant’s Due Process And Confrontation Rights Beyond beingstate-law error, the prosecutorial misconduct deprived appellant of a fair trial and thus violated appellant’s due processrights guaranteed by the Fourteenth Amendmentto the United States Constitution andarticle I, sections 7 and 15 of the California Constitution. (See Darden v. Wainwright (1986) 477 U.S. 168, 181 [prosecutorial misconduct that infects trial with unfairness infringes defendant’s due processrights]; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643 [same].) The two types of misconduct individually and cumulatively renderedthetrial unfair. The prosecutor impermissibly bolstering the credibility of Ivan Jr.’s preliminary hearing testimony prevented appellant from receivinga fair trial because Ivan Jr.’s allegations were crucial to the prosecution’s case and the veracity of those allegations was disputed. The only evidence implicating appellant, rather than solely Veronica, was appellant’s admissions to noncriminal conduct and Ivan Jr.’s allegations. Consequently, the prosecution’s guilt-phase case against appellant relied heavily on the truthfulness of Ivan Jr.’s allegations. Accordingly, casting doubt on Ivan Jr.’s credibility comprised a critical componentof appellant’s defense. By referring to matters outside the record to undercutthis line of defense that would haverebutted crucial prosecution evidence, the prosecutorial misconduct prevented appellant from receiving a fairtrial. -262- The comparisons of appellant to Adolf Hitler and Slobodan Milosevic and the Ivan the Terrible and camp commandantepithets also renderedthetrial unfair. These remarks were highly inflammatory and, thus, prejudicial. (See Martin v. Parker (6th Cir. 1993) 11 F.3d 613, 616- 617 [holding prosecutorial misconduct, particularly comparison of defendant to Hitler, denied defendantright to fairtrial].) Appellantdid not receive a fair trial though thetrial court sustained defense objections to the prosecutor’s witness vouching and comparisons and admonishedthe jury not to consider the prosecutor’s vouching. (See Moore v. Morton (3rd Cir. 2001) 255 F.3d 95, 119-120 [concluding prosecutorial misconduct deprived defendant offair trial despite curative instruction]; Hill v. Turpin (11th Cir. 1998) 135 F.3d 1411, 1419 [same]; State v. Frost (N.J. 1999) 727 A.2d 1, 5-6 [same].) Once the prosecutor madehis improper remarks, the bell could not be unrung. It would be unrealistic to expect that the jury disregarded the prosecutor’s allusions to matters outside the record and comparisonsto Hitler and Milosevic. Moreover,the trial court overruled defense objections to the prosecutor calling appellant Ivan the Terrible and a camp commandant;the court’s ruling informedthe jury that the trial court believed that these epithets constituted fair prosecutorial comment on the evidence. The misconductalso infringed appellant’s confrontation-clause rights, which are guaranteed by the Sixth and Fourteenth Amendmentsto the United States Constitution andarticle I, section 15 of the California Constitution. When the prosecutor referred to extra-record facts, appellant had no opportunity to confront the adverse “witness.” (Donnelly v. DeChristoforo, supra, 416 U.S.at p. 643, fn. 15; People v. Harris (1989) 47 Cal.3d 1047, 1083.) | -263- D. The Prosecutorial Misconduct WasPrejudicial As aresult of the prosecutorial misconduct, this Court should vacate the conviction, special-circumstance finding, and death judgment. If the prosecutorhad actedproperly,it is reasonably probable that appellant would not have been convicted and the jury would not have found the special circumstance. (See People v. Watson (1956) 46 Cal.2d 818, 836.) This was a close case, and the evidence against appellant was not overwhelming. (See ante, at pp. 85-88.) The prosecutor vouching for Ivan Jr.’s credibility prejudiced appellant because the truthfulnessofIvan Jr.’s allegations wascentral to the prosecution’s case. The epithets prejudiced | appellant because the prosecutor compared appellant to someofhistory’s most infamous, homicidal, and genocidal figures. (See Martin v. Parker, supra, 11 F.3d at p. 616 [holding prosecutor’s comparison to defendantto Hitler “create[d] an overwhelming prejudice in the eyes of the jury”].) Furthermore, respondent cannot showthat the violation of appellant’s due process and confrontation rights stemming from the prosecutorial misconduct, which deprived appellantof a fair trial, was harmless beyond a reasonable doubt. (See Chapmanv. California (1967) 386 U.S. 18, 24.) Because the conviction and special circumstance formedthe only basis for . finding appellant death-eligible, vacating either the conviction or special- circumstancefinding requires vacating the death judgment. -264- XV THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT AT THE PENALTY RETRIAL Throughoutthe penalty retrial, the prosecutor crossed the line in several respects in order to win the death verdict he could not obtain at the first trial. The prosecutorial misconduct deprived appellant of a fair and reliable penalty retrial. As a result, appellant should receive a new, misconduct-free penalty trial. A. The Prosecutor Committed Misconduct 1. Epithets Priorto theretrial, appellant movedto limit the prosecutor’s argument. (CT 11:2577-2601.) Appellant specifically requested that the court bar the prosecutor from calling appellant Ivan the Terrible or a camp commandant, as he had doneatthefirst trial. (RT 84:10000-10002.) Believing that those slurs constituted permissible argument, the court overruled the objections. (RT 84:10002; RT 90:11192-11193; RT 91:11253; RT 98:12699.) The prosecutor in his opening statement called appellant a camp commandantandin his closing argumentcalled appellant Ivan the Terrible. (RT 91:11253; RT 99:12745.) Becausethe prosecutor lacked evidentiary support for these epithets, the prosecutor’s arguments constituted misconduct. Moreover,the prosecutor’s invective improperly appealed to jurors’ emotions. (See ante, at p. 262.) 2. Opening Statement In his opening statement, the prosecutor argued that “[t]his case is the reason why wehavecapital punishment.” The court sustained an objection to that remark. (RT 91:11231.) Healso called appellant a camp -265- commandantalthough he had represented to the court that he would not use that epithet during the opening statement and, relying on that representation, the court had not definitively ruled on the propriety of that comment. The court overruled appellant’s objection to that slur. (RT 90:11192-11193; RT 91:11253.) Thetrial court correctly sustained the argumentativeness objection; saying that the death penalty was neededin this case did not prepare the jurors to follow the evidence. (See People v. Dennis (1998) 17 Cal.4th 468, 518.) Further, it was misconduct for the prosecutor to inform the court and appellant’s counsel that he would not call appellant a camp commandant during the opening statement and then make the very argumenthesaid he would not make. The court relied on that representation. It was misconduct to mislead the trial court and defense counsel. (See Demjanjukv. Petrovsky (6th Cir. 1993) 10 F.3d 338, 349-350; Korematsu v. United States (N.D. Cal. 1984) 584 F.Supp. 1406, 1420.) The prosecutor misleading the court and counsel exacerbated the impropriety of the prosecutorcalling appellant a camp commandant. 3. Reserved Chair At his penalty-phase closing argumentatthefirst trial, the prosecutorsaid that he had the bailiff reserve a seat in the courtroom to represent that nobodyin the courtroom cared about, or had shed tear for, Genny. (RT 70:8936.) At appellant’s request, the trial court subsequently barred the prosecutorfrom stating at the penalty retrial that the court staff played a role in reserving the chair. (RT 84:10005-10006; RT 91:11386; RT 98:12705.) The court, however, overruled appellant’s objections to the prosecutor placing a “reserved” sign on a chair for the penalty retrial. (RT 91:11208-11210; RT 92:11383-11386.) Prior to the closing argument, -266- appellant objected to prosecutorial argument regarding the reserved chair, but the court overruled the objection. (RT 98:12698, 12700, 12703-12705.) During his summation, the prosecutor argued that he reserved the seat to show “that somebody cares about Genny and that Genny doesexist in all of our hearts.” (RT 99:12828.) The prosecutor’s actions were improper for several reasons. Whether Gennyexisted in the prosecutor’s and jurors’ hearts wasirrelevant, and the prosecutor’s assertion was not derived from the evidence. (See People v. Haskett (1982) 30 Cal.3d 841, 864.) Indeed, the prosecutor’s antics appeared to be designed to substitute for the absence of victim- impact evidence, which, for strategic reasons, the prosecutordid notelicit.*° Moreover, the prosecutor’s ploy improperly appealed to jurors’ emotions. (See People v. Fosselman (1983) 33 Cal.3d 572, 580-581; People v. Jones (1970) 7 Cal.App.3d 358, 363.) 4. Questions About Appellant’s Clothing and Grooming At the penalty retrial, the prosecutor asked Officer William Reberif appellant on the night of Genny’s death had a goatee or wore a purple cardigan sweater. Reber replied that appellant was not clean-shaven and was not wearing a sweater. (RT 95:11987.) The prosecutor later argued that appellant’s purple cardigan sweater did not make appellant a human being. (RT 99:12822.) The court overruled an objection to the questioning and concluded that the related argument was permissible. (RT 95:11987; %° Potential victim-impact witnesses included Genny’s parents and grandmother, Tillie. Due to the pending capital prosecution against Veronica, they apparently would have been hostile witnesses. (RT 35:3665.) -267- RT 103:12940-12941.) Because appellant’s appearanceat the time of the incident was irrelevant, this line of questioning constituted misconduct. (See People v. Mayfield (1997) 14 Cal.4th 668, 755.) This was not an identification case in which appearance was material to the prosecution’s case in aggravation. Appellant’s clothing and grooming wasthusnot relevant to any aggravating factor and hadnopertinence to the determination of his deathworthiness. Thoughthe prosecutor sought to contrast appellant’s appearanceat the time of the incident to his being well-groomedin the courtroom, appellant’s courtroom appearance wasnot evidence and, accordingly, not an appropriate subject for rebuttal. A defendant being well-dressed in the courtroom provides prosecutors with no justification for asserting or implying that his being unkemptat the time of the crime makes him deathworthy. 5. Closing Argument Thoughthe court had barred the prosecutor from eliciting evidence of the filth and odor in appellant and Veronica’s apartment, during closing argumentat the penalty retrial the prosecutor said that the apartment smelled of feces and urine. (RT 99:12750.) The court determinedthat this argument wasproper. (RT 103:1 2940-12941 .) Furthermore, the prosecutor asserted that the acts against Genny also occurred at concentration camps in Eastern Europe and in Rwanda and Bosnia. The court overruled appellant’s objection to this argument. (RT 99:12744.) In addition, the prosecutor urged the jurors to picture themselves armed with a gun in appellant and Veronica’s apartment and asked the jurors at which point they would intervene. The court overruled appellant’s -268- ensuing objection. (RT 99:12769-12770.) Also, the prosecutor contended appellant was arguing that he either did not injure Gennyorthat, if he did, it was an accident. The prosecutor claimed that the veracity of appellant’s defense was belied by the number of defenses raised. The court overruled appellant’s objection that the prosecutor misstatedhis argument. (RT 99:12819-12820.) Further, the prosecutor argued that it was ridiculous for defense counsel to humanize appellant because appellant, despite dressing well in the courtroom, was no longer a human being. (RT 99:12822.) Thetrial court concludedthat this argument was permissible. (RT 103:12940-12941.) When reviewing the mitigating factors that he asserted did not apply in this case, the prosecutor claimed that appellant was arguing that Genny’s conduct contributed to the homicidal acts. Again, the court overruled appellant’s objection that the prosecutor misstated his argument. (RT 99:12835-12836.) Toward the end of his summation, the prosecutor rhetorically asked, “If [appellant] was such a great father, why did helet his children see this?” (RT 99:12844.) Believing that this was permissible argument based on the evidence, the court overruled appellant’s objection. (RT 99:12845, 12851- 12853.) All of these arguments were improper. The prosecutor disclosing the foul odors in the apartment — after the court had barred him from - eliciting evidence of the stench — constituted egregious misconduct. The prosecutor cannot use closing argument to evade an adverse evidentiary ruling. (See People v. Bolton (1979) 23 Cal.3d 208, 212-213.) The comparison to concentration camps was inflammatory, designed to appeal to jurors’ emotions, lacked evidentiary support, and was an end run around the court having sustainedat thefirst trial an objection to comparisonsto -269- Adolf Hitler and Slobodan Milosevic. (RT 63:8031; see People v. Cash (2002) 28 Cal.4th 703, 732; People v. Fosselman, supra, 33 Cal.3dat pp. 580-581.) Imploring the jurors to picture themselves armed with a gun at the apartment was inflammatory and an inappropriate appeal to jurors’ emotions. (See Fosselman,at pp. 580-581.) This Court has foundthat argumentto be improper. (People v. Jackson (1963) 59 Cal.2d 375, 381.) Moreover,telling the jurors to imagine having a gun that they could use to stop the abuse of Genny improperly implied to the jurors that they should vote for a death verdict because it was the best available alternative to preventing Genny’s death. The misstatement of appellant’s arguments, which permitted the prosecutorto set up and knock downfictional straw men, was also misconduct. (See People v. Kennedy (2005) 36 Cal.4th 595, 627 [suggesting prosecutor’s misstatement of defense arguments can constitute misconduct].) The prosecutor also improperly disparaged defense counsel. (See People v. Hill (1998) 17 Cal.4th 800, 832.) The prosecutor asking why appellant allowed his children to see Genny being abused wasnot permissible because appellant did not elicit evidence or argue that appellant was a good father and the penalty retrial record lacked evidence that the children saw what had happened. Misstating appellant’s argument and making an argument based onfacts not in evidence constituted misconduct. ([bid.; Cash, 28 Cal.4th at p. 732.) 6. The Trial Court Erred in Overruling Objections to Misconduct and Denying the Related Portion of the Motion for a New Trial Aside from sustaining appellant’s argumentativeness objection during the prosecutor’s opening statement, the trial court overruled appellant’s objections to the misconduct delineated above. Those rulings -270- were erroneous. Appellant raised prosecutorial misconductat the penalty retrial closing argumentas one of two grounds in his motion for a new trial. (CT 12:2706-2712.) Finding the prosecutor’s arguments to be proper, the court denied the motion. (RT 103:12940-12941.) That, too, waserror. B. The Prosecutorial Misconduct Infringed Appellant’s Rights To Due Process Of Law, To A Fair And Reliable Capital-Sentencing Determination, To Counsel, And To Confront Adverse Witnesses The prosecutorial misconduct deprived appellant ofa fair trial and thus violated appellant’s due process rights guaranteed by the Fourteenth Amendmentto the United States Constitution andarticle I, sections 7 and 15 of the California Constitution. (See Darden v. Wainwright (1986) 477 U.S. 168, 181 [prosecutorial misconductthat infects trial with unfairness infringes defendant’s due processrights]; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643 [same].) The misconduct steered the jury away from a proper evaluation of the evidence admitted and its relationship to the statutory aggravating and mitigating factors and toward an improper evaluation of appellant’s deathworthiness. The prosecutor’s appeals to jurors’ emotions, inflammatory rhetoric, and references to purported facts that could not be reasonably inferred from the evidence providedthe jury with unlawful bases for returning a death verdict. Research has demonstrated that this sort of misconduct indeed influences juries’ penalty- phase verdicts. (Platania & Moran, Due Process and the Death Penalty: The Role ofProsecutorial Misconduct in Closing Argument in Capital Trials (1999) 23 Law and Hum.Behav. 471, 483-484.) Dueto its impact, the prosecutorial misconduct deprived appellantof a fairtrial. -271- Furthermore, the misconductinfringed appellant’s right to a fair, accurate, and reliable capital-sentencing proceeding guaranteed by the Eighth Amendmentto the United States Constitution and article I, section 17 of the California Constitution. (See Saffle v. Parks (1990) 494 U.S.484, 493.) Misconductthat infringes the rightto a fair trial by definition also precludesa fair and reliable capital-sentencing proceeding. The misconductalso violated appellant’s rights to counsel and rights under the confrontation clause, which are protected by Sixth Amendmentandarticle I, section 15. The prosecutor’s disparagement of counselinfringed the former right, and the reference to extra-record facts transgressed thelatter right. (Donnelly v. DeChristoforo, supra, 416 U.S.at p. 643, fn. 15 [confrontation clause]; United States v. Amlani (9th Cir. 1997) 111 F.3d 705, 712 [right to counsel]; People v. Harris (1989) 47 Cal.3d 1047, 1083 [confrontation clause].) | C. The Prosecutorial Misconduct WasPrejudicial Asaresult of the prosecutorial misconduct, this Court should vacate the death judgment. Ifthe prosecutor had acted properly,it is reasonably possible that appellant would not have been sentenced to death. (See People v. Brown (1988) 46 Cal.3d 432, 448.) As stated above, misconduct at the penalty phase affects jury verdicts. This was a close case, and the evidence against appellant was not overwhelming.*! (See ante, at pp. 93- 94,98.) Furthermore, respondent cannot showthat the violation of 8! The overwhelming-evidencetest should not be used to evaluate the harmlessness ofpenalty phase errors. (See ante, at pp. 96-98.) -272- appellant’s constitutional rights stemming from the prosecutorial misconduct was harmless beyond a reasonable doubt. (See Chapmanv. California (1967) 386 U.S. 18, 24.) -273- XVI THE TRIAL COURT’S DENIAL OF APPELLANT’S PRETRIAL MOTIONS WAS ERROR Several months beforethefirst trial, appellant filed a panoply of pretrial motions. The court erred by denying the motions delineated below. A. Motion For Sequestered Voir Dire Appellant moved for individual and sequestered voir dire. (CT 1:207-218.) Thetrial court denied the motion. (RT 14:1238; CT 6:1210.) The court also declined appellant’s request for an evidentiary hearing to determinethe practicability of individual and sequestered voir dire. The denial of appellant’s request for individual and sequestered voir dire, which this Court had mandated in Hovey v. Superior Court (1980) 28 Cal.3d 1, was erroneous. Although this Court has denied similar claims in previouscases (e.g., People v. Waidla (2000) 22 Cal.4th 690, 714.), appellant urges this Court to reconsider those precedents. (See People v. Schmeck (2005) 37 Cal.4th 240, 304 [articulating requirementsfor fair presentation of appellate claims].) Asappellant explained in his motion, Proposition 115 did not bar Hovey voir dire. (People v. San Nicolas (2004) 34 Cal.4th 614, 633.) It has been demonstrated that group voir dire inhibits prospective jurors from being frank and results in conviction-prone and death-prone jurors. (Haney, Onthe Selection ofCapital Juries: The Biasing Effects ofthe Death Qualification Process (1984) 8 Law & Hum. Beh. 121; Broeder, Voir Dire Examination: An Empirical Study (1965) 38 S. Cal. L. Rev. 503.) Consequently, the group voir dire was not an adequate vehicle for assuring appellant an impartial jury. Moreover, a jury selection processthat increases the risk of a death-prone jury undercuts the reliability of the death -274- judgment. Accordingly, the court, by denying appellant’s motion for individual voir dire, deprived appellant of his Sixth, Eighth, and Fourteenth Amendment andarticle I, sections 7, 15, 16, and 17 rights to an impartial jury and fair and reliable capital-sentencing determination. B. Motion ForInstruction Defining Life Without Parole . Appellant movedforthetrial court to instruct the jury that a sentenceoflife imprisonment without the possibility of parole truly means that the defendant would not be eligible for parole. Appellant further requested that the court explain to the jury that notorious parole-eligible killers such as Charles Manson and Sirhan Sirhan had been sentenced under a different statutory scheme. (CT 2:257-262.) Believing that the requested instruction was redundant and unnecessary,thetrial court denied the motion. (RT 14:1265-1267.) The denial of the requested instruction was error. Althoughthis Court has denied similar claims in previous cases (e.g., People v. Jones (1997) 15 Cal.4th 119, 189-190), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) The requested instruction correctly stated the law. Furthermore, researchers have documented that the overwhelming majority of California capital jurors’ erroneously believe thata life-without-parole sentence does not foreclose the possibility of parole. (Steineret al., Folk Knowledge as Legal Action: Death Penalty Judgments and the Tenet ofEarly Release in a Culture ofMistrust and Punitiveness (1999) 33 Law & Soc’y Rev.461, 499.) Consequently, the requested instruction was necessary to correct jurors” misconceptions. As a result of the denial of appellant’s motion,the death verdict was tainted by the jury’s misperception ofthe alternative -275- sentence to death; that violated appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights to a fair, accurate, and reliable capital-sentencing determination. C. Motion To Set Aside The Indictment Appellant movedto set aside the indictment due to several constitutional defects in the capital-sentencing statutory scheme. (CT 2:283-305.) Noting that the California Supreme Court had concluded that nearlyall of the alleged constitutional defects were permissible, the trial court denied the motion. (RT 15:1335-1336; CT 5:1168; CT 6:1210.) That ruling was erroneous. 1. Failure to Delete Inapplicable Aggravating Factors The failure to delete inapplicableaggravating factors violated appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights to an individualized capital-sentencing determination based on permissible factors and to a fair and reliable capital-sentencing determination. Although this Court has denied similar claims in previous cases (e.g., People v. Jones (2003) 30 Cal.4th 1084, 1129), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) 2. Failure to Designate Sentencing Factors as Aggravating or Mitigating The unitary list of aggravating and mitigating factors, whichfailed to specify which factors were aggravating and which were mitigating, infringed appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights to guide the jury’s penalty-phase discretion and to ensure that mitigating factors not be used as improper aggravation. Although this Court has denied similar claims in previouscases(e.g., -276- People v. Williams (1997) 16 Cal.4th 153, 268-269), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) 3. Absence of Written Findings The failure to require written findings for the aggravating factors that the jury found present violated appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights to meaningful appellate review. Although this Court has denied similar claims in previous cases (e.g., People v. Davenport (1995) 11 Cal.4th 1171, 1232), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) 4. Absence of a Beyond-a-Reasonable-Doubt Burden of Proof The failure to require that all aggravating factors, that the aggravating factors outweigh the mitigating factors, and that death is the appropriate penalty be found beyond a reasonable doubt violated appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights to due process, equal protection, and a fair and reliable capital-sentencing determination. Although this Court has denied similar claims in previous cases (e.g., People v. Manriquez (2005) 37 Cal.4th 547, 589), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) 5. Absence of Proportionality Review The lack of intracase and intercase proportionality review, whichis made available in noncapital cases, infringed appellant’s Fourteenth Amendmentandarticle I, section 7 and 17 right to equal protection and his Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights -277- that the death penalty not be imposed arbitrarily or capriciously. It also violated appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights to meaningful appellate review and fair and reliable capital-sentencing determination. Although this Court has denied similar claims in previouscases (e.g., People v. Caro (1988) 46 Cal.3d 1035, 1068), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) 6. Restrictive Adjectives in Mitigating Factors The adjectives “extreme” and “substantial” in mitigating factors (d) and (g) served as unconstitutional barriers to mitigating factors, rendered the mitigating factors vague, arbitrary, and capricious, and precludeda fair andreliable capital-sentencing determination, in violation of appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights. Although this Court has denied similar claims in previous cases (e.g., People v. Prieto (2003) 30 Cal.4th 226, 276), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) 7. Vagueness of Aggravating and Mitigating Factors The aggravating and mitigating factors delineated in Penal Code section 190.3 were unconstitutionally vague andarbitrary, thereby resulting in having the jury’s discretion insufficiently constrained. That violated appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights. Although this Court has denied similar claims in previous cases(e.g., People v. Stansbury (1993) 4 Cal.4th 1017, 1071, revd. on other grounds (1994) 511 U.S. 318), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) -278- 8. Prosecutors’ Unbridled Discretion to Seek Death The complete discretion entrusted to prosecutors with respect to whether to seek a death sentence unconstitutionally permits arbitrariness, inter-county disparities, and invidious discrimination to enter the death- sentencing process, in violation of appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights. Although this Court has denied similar claims in previous cases (e.g., People v. Keenan (1998) 46 Cal.3d 478, 505), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) D. Motions For Procedural Protections Relatedly, appellant joined Veronica’s motions requesting the following procedural protections: a reasonable-doubt standard on aggravating factors, written findings and unanimity on aggravating factors, and a beyond-a-reasonable-doubt standard for the determination that death is the appropriate punishment. (CT 4:740-753, 837-842.) Following this Court’s precedents,the trial court denied these motions. (RT 16:1453; CT 5:1171-1172; CT 6:1211.) The denial of these motions was erroneous. Although this Court has denied similar claims in previouscases (e.g., People v. Manriquez, supra, 37 Cal.4th at pp. 589-590), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) E. Motion To Declare Penal Code Section 190.3 Unconstitutional Similarly, appellant joined Veronica’s motion to declare the capital- sentencing statute unconstitutional on various grounds. Consideringitself to be boundby precedent, the court denied the motion. (RT 16:1456; CT 5:1172.) -279- The denial of the motion was error. The unitary list of aggravating and mitigating factors, which failedto specify which factors were aggravating and which were mitigating, infringed appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights by injecting arbitrariness and capriciousness in the death-sentencing process. The failure to designate factor (d) (extreme emotional disturbance) as mitigating is particularly problematic because some people may consider mental disturbance to be aggravating. Although this Court has denied similar claims in previous cases(e.g., People v. Jackson (1980) 28 Cal.3d 264, 316), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) F. Motions To Strike The Special Circumstance Due To Constitutional Defects Appellant movedto strike the torture-murder special circumstance becauseit failed to meet constitutional muster in several respects. (CT 2:306-319.) Following this Court’s precedents, the trial court denied the motion. (RT 15:1337-1338; CT 6:1210.) . The denial of the motion was error. As appellant asserted in his moving papers, the torture-murder special circumstance was vague and overbroad,in violation of appellant’s Eighth and Fourteenth Amendment and article I, section 7, 15, and 17 rights to be free from cruel and unusual punishmentandto due process of law. Although this Court has denied similar claims in previous cases(e.g., People v. Davenport (1985) 41 Cal.3d 247, 265-271), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) Moreover, the lack of nexus between the torture and the homicidal act was particularly problematic in this case. This Court has said that the -280- torture-murder special circumstance “requires “some proximity in time [and] space between the murder and torture.’” (People v. Bemore (2000) 22 Cal.4th 809, 843, quoting People v. Barnett (1998) 17 Cal.4th 1044, 1161.) Indeed, the statute mandates that the special circumstance can be found only when “[t]he murder was intentional and involvedthe infliction of torture.” (Pen. Code, § 190.2, subd. (a)(18).) Yet, CALJIC No. 8.81.18 requires no nexus whatsoever betweeneither the torture and the homicide, or the intent to torture and the homicide. Rather, the instruction, which the court gave in this case, requires only an intent to torture and an intent to kill. (CT 10:2283.) Thus, the jury wasinstructed to baseits special-circumstance finding without regard to any connection between the mensrea and actus _reus or between the twodistinct mens reae that comprise the only two elements of the torture-murder special circumstance. Accordingly,the trial court instructed the jury to find the special circumstance so long as the jury concluded that appellant, at some time, intended to torture Genny and, at any other time, intendedto kill her. Underthe facts of this case, the jury may have foundboth intent to kill and intentto torture without there being any proximity in time between the homicide andtorture, the intent to kill and intent to torture, or the homicide andintent to torture.’ Unlike cases in which the infliction of superficial stab woundsallegedly precededthe infliction of fatal wounds by mere minutes (see People v. Bemore, supra, 22 Cal.4th at pp. 843-844; People v. Barnett, supra, 17 Cal.Ath at p. 1162), in this case the prosecutor alleged that appellant and Veronica began torturing Genny several weeks ®° For the purposesofthis argument, appellant assumes arguendo that the jury found the intent-to-kill element. (But see ante, Claim VI.) -281- before her death. (RT 63:8045.) Accordingly,it is entirely possible that the jury concluded that appellant possessed the intent to torture weeks before Genny’s death, but not at the time of Genny’s death. In light of appellant’s admissions that he scared Genny at some unspecified time prior to her death and the evidence presented that appellant was not present in the apartment during the infliction of the fatal injuries, it is indeed likely that the jury found the intent to torture without finding any connection between that intent to torture and Genny’s death. The Eighth and Fourteenth Amendments,article I, section 7, 15, and 17, and the capital-sentencing statute require that there be a nexus between the torture, or at the very least the intent to torture, and the homicide. Becausethe jury was not required to find such a nexus,thetrial court erred by denying the motion to strike the torture-murder special circumstance. G. Motion For A South Bay Jury Venire Appellant movedfor the jury venire to be selected from the South Bay Judicial District, where the offense took place and in which therewas a higher percentage of Latinos and Mexican Americans than a countywide jury venire. (CT 3:652-660.) Concluding that no defendant hastheright to a jury venire from a subdivision of a county, in general or for the purpose of altering the venire’s racial mix, and that the countywide venire did not deny appellant’s right to a jury drawn from the cross-section of his community, the court denied the motion. (RT 15:1418-1419.) The court erred in denying the motion. The utilization of a countywidejury venire infringed appellant’s Sixth and Fourteenth Amendmentandarticle I, section 7, 15, and 16 rights to an impartial jury, equal protection of the laws, and due process of law. The incident occurred in the South Bay Judicial District; as such, the jury venire should have been -282- comprised of residents in that district. Although this Court has ruled that the Sixth Amendmentis not violated whenthetrial court selects jurors from a jury pool that has lower percentages of underrepresented minorities than an alternate jury pool within the county (e.g., O’Hare v. Superior Court (1987) 43 Cal.3d 86, 93-97), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.Ath at p. 304.). Moreover, it was fundamentally unfair and discriminatory that defendants charged with homicides that occurred in the North County Judicial District, which hasrelatively few underrepresented minorities, had juries drawn from that judicial district, and defendants charged with homicides that occurred in the South Bay Judicial District, which has relatively more Latinos than the county as a whole, had juries drawn from the entire county. This disparity was particularly prejudicial for appellant, whois Mexican American. . H. Motion To Quash The Jury Venire Appellant joined Veronica’s motion to quash the jury venire. (CT 4:784-806, 849-850.) Following this Court’s precedents, the trial court denied the motion. (RT 16:1469; CT 5:1173; CT 6:1212.) The exclusion of non-citizen residents and former felons from the jury venire violated appellant’s rights to an impartial jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections 15, 16, and 17 of the California Constitution. Although this Court has denied similar claims in previous cases(e.g., People v. Karis (1988) 46 Cal.3d 612, 631-634), appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) 1. Motions Challenging Discriminatory Prosecution Appellant moved for supplemental discovery of chargingcriteria in -283- capital cases and moved to dismiss the indictment for discriminatory prosecution. (CT 3:661-724.) Calling the discovery request a fishing expedition that would place an enormous burden on the District Attorney and concluding that appellant lacked statutory authority or plausible justification for the request, the trial court denied the discovery motion. Although appellant presented evidence that other child-abuse murdersin San Diego County committed by white people were not prosecuted capitally, the trial court, determining that appellant did not show discriminatory intent and explaining that new capital charging policies of a newly elected District Attorney were not unconstitutional, denied the motion. (RT 17:1567-1573, CT 5:1170-1171, 6:1210.) Thetrial court erred. The Fourteenth Amendmentandarticle I, sections 7 and 15 forbid intentional racial discrimination from playinga role in a prosecutor’s charging decision. (Oyler v. Boles (1962) 368 U.S. 448, 456, cited in McCleskey v. Kemp (1987) 481 U.S. 279, 291 fn. 8.) A defendantis entitled to discovery pertaining to a discriminatory-charging defense upon a prima facie showing of discrimination, which provides the requisite “plausible justification” for discovery. (Griffin v. Municipal Court (1977) 20 Cal.3d 300, 302, 306-307; Murgia v. Municipal Court (1975) 15 Cal.3d 286, 305.) Evidence that similar cases had both differentracial characteristics and disparate results from the instant case provides that prima facie case. (Griffin, 20 Cal.3d at p. 307.) Betweenhis moving papers and the testimony and photographspresented at a hearing, appellant presented evidenceat least as extensive and probative as the declarations this Court in Griffin held sufficient to establish a prima facie case entitling the defendant to discovery. (RT 15:1368-1387, 1411-1416; RT 17:1533- 1546; CT 3:674-680, 682-683, 693-706, 711-724.) Accordingly, thetrial -284- court erred in finding that appellant had not provided a plausible justification to support his discovery motion. Concededly, this Court since Griffin has appeared to haveraised the bar for establishing a prima facie case of discriminatory prosecution. (See People v. McPeters (1992) 2 Cal.4th 1148, 1171; People v. Ashmus (1991) 54 Cal.3d 932, 980.) Underthose cases, it appears that appellant did not provide a plausible justification for his discovery request. Appellant urges this Court to reconsider those precedents. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) Likewise,the trial court erred by denying the motion to dismiss. The denial of the discovery motion prevented appellant from making the showing ofintentional discrimination required by McCleskey v. Kemp. Becausethe denial of the discovery motion inevitably led to the denial of the motion to dismiss, denying the motion to dismiss without ordering the discovery waserror. J. Appellant Is Entitled To A New Trial The erroneous denial of the motion for a South Bay jury venire and the motion to quash the jury venire constituted structural error. (See Vasquez v. Hillery (1986) 474 U.S. 254, 263-264.) Accordingly, the conviction, special-circumstance finding, and death verdict must be vacated. This Court should vacate the death judgmentdueto the denial of the other motions discussed above. The denial of those motions are not subject to harmless-error analysis and must result in automatic reversal of the death sentence. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 279-282.) Alternatively, there is a reasonable possibility that the jury would have returned a life verdict if the court had granted the motions. (See People v. -285- Brown (1988) 46 Cal.3d 432, 448.) The features in the capital-sentencing schemethat appellant challengedin the pretrial motions individually and collectively increased the likelihood of a death verdict. Moreover, this was a close case, and the evidence against appellant was not overwhelming.™ (See ante, at pp. 93-94, 98.) At the very least, respondent cannot show that the erroneousrulings were harmless beyond a reasonable doubt. (See Satterwhite v. Texas (1988) 486 U.S. 249, 258-259.) 83 The overwhelming-evidencetest should not be used to evaluate the harmlessness ofpenalty phase errors. (See ante, at pp. 96-98.) -286- XVII THE TRIAL COURT COMMITTED SEVERAL PREJUDICIAL INSTRUCTIONAL ERRORSAT THE GUILT PHASE The court made several instructionalerrors at the guilt phase. These errors were prejudicial. A. The Court Erred WhenIt Refused To Instruct The | Jury That Failing To Stop Somebody From Committing MurderIs Not A Crime Appellant requested that the trial court instruct the jury as follows: In general, a person whofails to help another person by preventing a crimeis not guilty of a crime. Likewise, a person is not guilty of murder simply because he or she failed to stop someoneelse from committing a murder. However, the law provides that a parent or another adult whohascustody of a child may be guilty of the crime of neglect under certain circumstances. (CT 9:2107.) Believing that the requested instruction was addressed sufficiently in other instructions, the trial court refused to issue this instruction. (RT 62:8007-8010.) This instruction should have been givento the jury. It is well settled that a defendantis entitled to instructions that pinpoint his theory of defense, as long as the instructions are a correct statement of the law and have support in the evidence. (People v. Roldan (2005) 35 Cal.4th 646, 715; People v. Stewart (1976) 16 Cal.3d 133, 141.) California law has long recognized the right to such a pinpointinstruction, provided that the instruction restricts itself to informing the jury about the applicable law and does not discuss the evidenceat issue. (People v. Panah (2005) 35 Cal.4th 395, 486; People v. Sears (1970) 2 Cal.3d 180, 189-190.) The requested instruction pinpointed appellant’s theory of defense. -287- Appellant’s guilt-phase defense was that he wasneither the primary perpetratornor an aider and abettor with respect to the homicide and was thus guilty of the lesser-related offense of child endangerment, but not guilty of murder. The proposed instruction would have spelled out clearly that according to appellant’s factual theory of the case — appellant in no way participated in or assisted Veronica in abusing or killing Genny, but failed to prevent Veronica from doing so — appellant wasnotguilty of murder. Moreover, the instruction presented a correct statement of law. It is axiomatic that a person’s mere presenceat a crime scene doesnot establish his guilt. (People v. Villa (1957) 156 Cal.App.2d 128, 133-134.) In addition,the instruction did not highlight specific evidence and was thus not argumentative. (Compare People v. Musselwhite (1988) 17 Cal.4th 1216, 1269-1270 [holding trial court properly denied requested instruction that highlighted some evidence anddid not illuminate relevant legal standards].) Theinstruction would not have merely duplicated other instructions. (Compare People v. Bolden (2002) 29 Cal.4th 515, 558 [holding trial court mayrefuse to give duplicative instructions].) No other instruction explicitly _informedthe jury that permitting, or failing to prevent, Veronica from abusingorkilling Genny did not make appellant legally culpable for murder. An instruction explicating this lack of legal culpability was particularly important in this case because the jury may well have concluded the failure to intervene rendered appellant morally culpable for Genny’s -288- death. The requested instruction would have made clear — from thetrial judge’s mouth— that this moral culpability translated into a conviction of child endangerment, not homicide. Because the judge, unlike defense - counsel, is a neutral arbiter and uniquely commandsauthority in the courtroom, a pinpoint instruction would have been far more effective than defense counsel’s argument at impressing this legal principle upon thejury. Although the substance of the requested instruction could have been deduced from the otherinstructions, only the pinpoint instruction expressly indicated the legal ramifications of appellant’s theory ofthe case. | Consequently, the requested instruction was not duplicative. Substantial evidence supported the requested instruction. The physical evidence provided no indication whether Veronica or appellant inflicted the injuries. Moreover, Ivan Jr.’s preliminary hearing testimony that appellant and Veronica put Genny in the bathtub wasthe only eyewitness evidence that appellant committed any criminalact, and Ivan Jr. on cross-examinationtestified that he did not see appellant putting Genny in the bath on the night she died. Thus, there was a large gap in the evidence regarding whoinflicted Genny’s injuries. Appellant presented evidence that he was not present in the apartmentat the time Genny was burned in the bathtub. Also, he presented evidence that Veronica abused him, from whichthe jury could have inferred that appellant did not prevent Veronica from killing Genny because he wasafraid of her. In addition to violating state law, the trial court’s refusal to give this instruction violated appellant’s due processright to receive fairtrial, as * Indeed, one juror declared that she voted to convict appellant because he did not prevent Genny’s death. (CT 11:2438.) -289- guaranteed by the Fourteenth Amendment and article I, sections 7 and 15. “A criminal defendantis entitled to adequate instructions on a defense theory ofthe case ‘provided that [the defense theory] is supported by law and has some foundation in the evidence.’” (Swindell v. Lewis (9th Cir. 2001) 1 Fed. Appx. 744, 744-745, quoting United States v. Mason (9th Cir. 1990) 902 F.2d 1434, 1438.) As stated above, the proposed instruction accurately stated the law and had evidentiary support. The court’s ruling had the additional impact of violating appellant’s constitutional rights to present a defense, as guaranteed by the Sixth and Fourteenth Amendmentsandarticle I, section 15. The denial of the instruction impeded appellant from having the jury consider his defense and thus violated his rights to present a defense. (See McNeil v. Middleton (9th Cir. 2003) 344 F.3d 988, 995-996.) B. The Court Erred When It Refused To Instruct The Jury With Respect To Veronica Gonzales’s Consciousness Of Guilt Appellant requestedthat the trial court instruct the jury as follows: Ifyou find that beforethistrial [a] [the] co-defendant Veronica Gonzales made a willfully false or deliberately misleading statement concerning the crime[s] for which [he] [she] is now beingtried, you may consider such statement as a circumstance tending to provide a consciousnessofherguilt. . (CT 9:2108.) Thetrial court stated that the jury could not determine ~ Veronica’s guilt at appellant’s trial and denied the requestto issue the instruction. (RT 62:8011-8012.) The refusal to instruct the jury as requested was erroneous. Appellant’s theory of defense was that Veronica, but not he, perpetrated the offense against Genny. Appellant’s third-party culpability defense relied in part on showing that Veronica, the alleged alternative perpetrator, -290- demonstrated a consciousnessof guilt. Accordingly, the requested instruction pinpointed appellant’s theory of defense. The requested instruction had evidentiary support. Neither party disputed that Veronica was untruthful when she contended that Genny had drowned in the bathtub. Indeed,the trial court excluded Veronica’s statements at the penalty retrial because the drowning story wasfalse. (See ante, Claim III.) Contrary to the trial court’s conclusion, a jury should consider the consciousnessof guilt of an alleged alternative perpetratorirrespective of whethersheis being tried simultaneously with the defendant. So long asit is capable of raising a reasonable doubt, otherwise competent third-party- culpability evidence is admissible. (People v. Hall (1986) 41 Cal.3d 826, 833-834.) The admission of the third-party-culpability evidence placed the correlative duty on thetrial court to give the requested instructions pertaining to third-party culpability. (See People v. Blair (2005) 36 Cal.4th 686, 744.) Althoughthe jury at appellant’s severed trial was responsible for formally determining only appellant’s guilt, appellant’s third-party- culpability defense required the jury to consider Veronica’s guilt as well. Because Veronica’s guilt was material at appellant’s trial, her consciousness of guilt was relevant. (See People v. Farnam (2002) 28 Cal.4th 107, 153.) Veronica’s false statements were probative toward her consciousness of guilt. (See People v. Cain (1995) 10 Cal.4th 1, 33.) Thus, the requested instruction correctly stated the law. Finally, the requested instruction would not have duplicated other instructions. The jury wasinstructed that appellant’s false or misleading statements could be used to show his consciousness of guilt. (RT 63:8197; CT 10:2231.) The jury, however, was not instructed that Veronica’s false -291- statements could be used to find her consciousnessofguilt. In addition to violating appellant’s state-law rights, refusing the instruction violated his federal and state constitutionalrights to a fair trial and to present a defense. Because the requested instruction pertaining to appellant’s theory of defense had support in the law and the evidence, the court’s refusal to give the instruction constituted a due processviolation. (See Swindell v. Lewis, supra, 1 Fed. Appx. at pp. 744-745.) In addition, the denial of the requested instructions created an impermissible imbalance in the instructions. The jury was instructed to consider appellant’s allegedly false or misleading statements for his consciousness ofguilt, but was not given an analogousinstruction for Veronica. It waserrorfor the trial court to give instructions that were slanted in the prosecution’s favor. (See People v. Moore (1954) 43 Cal.3d 517, 526-529.) Moreover, the imbalance constituted a further violation of appellant’s due processrights. (See Wardius v. Oregon (1973) 412 US. 470, 475, fn. 6.) C. The Court Erred By Giving CALJIC No. 2.04 Over appellant’s objection, the trial court granted the prosecutor’s requestto instruct the jury in accordance with CALJIC No. 2.04. The court gavethe instruction despite believing that the prosecutor’s argumentthat appellant sought to coach Ivan Jr.’s testimony was weakerthan the defense counterargument that appellant made no such efforts. (RT 61:7807-7808.) Accordingly, the court instructed the jury as follows: Ifyou find that a defendant attempted to or did persuade a witnessto testify falsely, such conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, such conductis not sufficient by itself to prove guilt and its weight and significance,if any, are -292- matters for your determination. (RT 63:8179; CT 10:2232.) Thetrial court erred in giving CALJIC No. 2.04. This Court has explained that the instruction should not be given unless evidence presented at trial sufficiently supports the inferences sought by the prosecution. (People v. Coffman (2004) 34 Cal.4th 1, 103; People v. Hannon (1977) 19 Cal.3d 588, 597.) In this case, the prosecutor presented insufficient | evidence to support the inference that appellant sought to persuade IvanJr. to testify falsely. There was no evidencethat appellant ever told Ivan Jr. not to talk to the police about what had happened to Genny. After Genny’s death, appellant told Ivan Jr. that Genny had stopped breathing. (CT | 8:1867, 1889; CT 9:1906, 1908-1909, 1919.) That was a true statementthat did notatall insinuate that Ivan Jr. should not speaktruthfully to the authorities. It was Veronica whosaid that Genny had drowned. (CT 8:1889.) After getting arrested, appellant had no contract with Ivan Jr. and could not have made any efforts to coach Ivan Jr.’s testimony. (CT 6:1437.) Ivan Jr. expressing a generalized fear of appellant provided no grounds for concluding that appellant urged Ivan Jr. not to testify or speak to authorities about what was done to Genny. Similarly, appellant and Veronica locking their children in their room as Genny died did not warrant the CALJIC No. 2.04 instruction. There was no evidence that the children were instructed in any mannerregarding whatto say to law enforcementofficers. Indeed, whenspeaking to police late on the night that Genny died, Ivan Jr. said that Genny had been burned. (CT 8:1849.) Moreover, if the children would have been permitted to leave their bedroom, the prosecutor would undoubtedly have argued that appellant maliciously allowed the children to see their cousin die. -293- Furthermore, by giving CALJIC No. 2.04 despite the lack of factual support, the trial court infringed appellant’s due process rights guaranteed by the Fourteenth Amendmentto the United States Constitution and article I, sections 7 and 15 of the California Constitution. Because the instruction had no evidentiary support, the jury could not have rationally madethe “the connection permitted by the inference” invited by the instruction. (County Court of Ulster County v. Allen (1979) 442 US. 140, 157.) In these circumstances, the permissive presumption contained in CALJIC No. 2.04 created the “risk that an explanation of the permissible inferenceto a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneousfactual determination.” (/bid.) D. The Court Erred In Giving CALJIC No.8.81.18 Because TheInstruction Required No Nexus Between The Alleged Torture Or Intent To Torture And The Homicide In accordance with CALJIC No. 8.81.18, the court instructed the jury on the torture-murder special circumstance. (CT 10:2283; RT 63:8201- 8202.) In contrast to the statutory language and this Court’s precedents,the CALJIC instruction required no nexus between the torture or intent to torture and the homicide. For the reasons discussed in Claim XVI,thetrial court erred in giving CALJIC No. 8.81.18 without amending the instruction to require the jury to find a nexus betweenthetorture or intent to torture and the homicide. (See ante, at pp. 280-282.) Furthermore, giving the instruction violated appellant’s due process rights guaranteed by the Fourteenth Amendmentto the United States Constitution andarticle I, sections 7 and 15 of the California Constitution.. Thestatute defines the special circumstance as an intentional murderthat “involved the infliction of torture.” (Pen. Code, § 190.2, subd. (a)(18).) -294- This Court has recognized that the torture-murder special circumstance “requires ‘some proximity in time [and] space between the murder and torture.’” (People v. Bemore (2000) 22 Cal.4th 809, 843, quoting People v. Barnett (1998) 17 Cal.4th 1044, 1161.) Thus, a nexus betweenthe torture and the murderis an element the torture-murder special circumstance. As a result of the failure to instruct the jury on this element, the jury found the special circumstance present without determining whether a nexus between the torture and the homicide had been proven beyond a reasonable doubt. That denied appellant due process of law. (See Jn re Winship (1970) 397 U.S. 358, 370.) Likewise, the omission of the nexus element from the instruction infringed appellant’s constitutional right to trial by jury, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 16 of the California Constitution. (See Ring v. Arizona, supra, 536 U.S.at p. 609.) The omission impermissibly took the question whether there was a nexus between the torture or intent to torture and the homicide out of the jury’s hands. Thus, the failure of the jury to find the nexus element beyond a reasonable doubt violated appellant’s trial-by-jury rights. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 278.) Moreover, the omission of the nexus element from the instruction violated appellant’s Eighth Amendmentandarticle I, section 17 rights to be free from cruel and unusual punishment. The principal constitutional constraint on a state’s capital-sentencing schemeis the requirementthat the class of murderers eligible for the death penalty be genuinely narrowed. (Zant v. Stephens (1983) 462 U.S. 862, 879-880.) The omission of an element from the instruction on a death-eligibility factor impedesthis narrowing function. The omission of the nexus elementis particularly -295- critical in this case because the torture-murderspecial circumstance comprisedthe lone death-eligibility factor alleged. Because the jury never found all of the elements of any special circumstance to have been proven beyond a reasonable doubt, the constitutionally mandated narrowing of death-eligibility did not occurin this case. E. 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 Dueprocess“protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which heis charged.” (In 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 standardis the “bedrock ‘axiomatic and elementary’ principle” (Jn re Winship, supra at p. 363)at the heart ofthe rightto trial by jury. (Sullivan v. Louisiana, supra, 508 U.S.at p. 278.) Jury instructions violate these constitutional requirementsif “there is a reasonable likelihood that the jury understood [them] to allow conviction based on proofinsufficient to meet the Winship standard” of proof beyond 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, and 2.51. (CT 10:2242-2243, 2245, 2259.) These instructions violated the above principles 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). (See Sullivan v. Louisiana (1993) 508 U.S. 275, 278; Carella v. California (1989) 491 U.S. 263, 265.) They also violated the -296- fundamental requirementfor reliability in a capital case by allowing appellant to be convicted without the prosecution having to present the full measureofproof. (See U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, § 17; Beck v. Alabama (1980) 447 U.S. 625, 637-638. ) Because the instructions violated the federal Constitution in a manner that can never be “harmless,” the judgmentin this case must be reversed. (See Sullivan, 508 USS.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 claimsfor federal review if necessary.® 1. The Instruction on Circumstantial Evidence under CALJIC No. 2.02 Undermined the Requirement of Proof Beyond a Reasonable Doubt The jury was instructed 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. (CT 10:2259; RT 63:8190-8191.) In effect, the instruction informed the jurors that if appellant reasonably appeared to have intended to torture and 85 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. -297- kill Genny, they were to find present the torture-murder special circumstance even if they entertained a reasonable doubt as to whether he had intendedto torture and kill her. Similarly, the instruction told the jurors to find appellant guilty of first degree murder by torture despite reasonable doubts regarding appellant’s intent to torture. The defects in this instruction wereparticularly damaging here where the prosecution’s case rested on circumstantial evidence and appellant countered with his own version of what had happened. 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. I, § 16), and a reliable capital trial (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, § 17). (See Sullivan v. Louisiana, supra, 508 US.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 of murder and to find the sole special circumstanceto be true using a standard lower than proof beyond a reasonable doubt. (Cf. In re Winship, supra, 397 U.S.at p. 364.) Theinstruction directed the jury to convict appellant based on the appearance of reasonableness: The jurors were told they “must” accept an incriminatory interpretation of the evidenceif it “appear[ed]”to be “reasonable.” (CT 10:2259.) However, an interpretation that appears 86 Although defense counsel did not object to the giving of CALJIC No. 2.02, the claimed errors are cognizable on appeal. Instructional errors are reviewable even without objection if they affect a defendant’s substantial rights. (Pen. Code, § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7; People v. Jones (1998) 17 Cal.4th 279, 312.) -298- reasonable is not the sameas the “subjective state of near certitude” required for proof beyond 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 not satisfy the Sixth Amendmentto have a jury determinethat the defendantis probably guilty”].) Thus, the instruction improperly required a conviction andtrue finding of the special circumstance, and findingsoffact necessary to support those verdict, on a degree of proof less than the constitutionally 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 unconstitutional if they shift the burden ofproof to the defendant on an elementofthe 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.” (CT 10:2259.) In People v. Roder (1983) 33 Cal.3d 491, 504, this Court invalidated an instruction that 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 ofthe -299- circumstantial evidence unless the defendant produced a reasonable interpretation of that evidence pointing to his innocence. Theinstruction had the effect of reversing, or at least significantly lightening, the burden ofproof, because it required the jury to find appellant guilty of first degree murderand find true the torture-murderspecial circumstance unless he came forward with evidence reasonably explaining the incriminatory evidence put forward by the prosecution. The jury may have found appellant’s defense unreasonablebutstill have harbored serious questions about the sufficiency prosecution’s case. Nevertheless, under the erroneousinstruction the jury was required to convict appellant and find true the special circumstance if he “reasonably appeared” to have intended to torture and kill, even if the jurorsstill entertained a reasonable doubt regarding appellant’s mens reae. Theinstruction 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 ofproof or persuasion, even as to his defenses.” (People v. Gonzales (1990) 51 Cal.3d 1179, 1214-1215, citing In 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-evidenceinstructionsto find appellant guilty offirst degree murder and true finding on the special circumstance on a standard which wasless than the United States Constitution requires. 2. TheInstructions Pursuant to CALJIC Nos. 2.21.2, 2.22, and 2.51 Also Vitiated the Reasonable-Doubt Standard Thetrial court gave three other standard instructions that magnified the harm arising from the erroneous circumstantial-evidence instructions, and individually and collectively diluted the constitutionally mandated -300- reasonable-doubt standard — CALJIC Nos. 2.21.2 (witness wilfully false), 2.22 (weighing conflicting testimony), and 2.51 (motive). (CT 10:2242- 2243, 2245; RT 63:8183-8185.) Each of those instructions, in one way or another, urged the jury to decide material issues by determining which side had presented relatively stronger evidence. Thus, the instructions implicitly replaced the reasonable-doubt standard with the preponderance-of-the- evidencetest, and vitiated the constitutional! prohibition against the conviction of a capital defendant upon any lesser standard of proof. (See Sullivan v. Louisiana, supra, 508 U.S. at p. 278; Cage v. Louisiana, supra, 498 USS.at pp. 39-40; In re Winship, supra, 397 U.S.at p. 364.)*” 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 material part of his or her testimony” unless, “from all the evidence, [they believed] the probability of truth favors his or her testimony in other particulars.” (CT 10:2242; RT 63:8183.) That instruction lightened the prosecution’s burden of proof by allowing the jury to credit prosecution 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 testimony that merely appeals to the jurors as more “reasonable,” or “probably true.” (See 87 Although defense counselfailed to object to these instructions, appellant’s claimsare still reviewable on appeal. (See Pen. Code, § 1259.) -301- Sullivan v. Louisiana, supra, 508 U.S.at p. 278; In re Winship, supra, 397 U.S.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 numberofwitnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which appeals to your mind with more convincing force. You may notdisregard the testimony of the 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 number ofwitnesses who havetestified on the opposing sides. The finaltest is not in the relative numberofwitnesses, but in the convincing force of the evidence. | (CT 10:2243; RT 63:8183-8182.) 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 ofproof beyond a reasonable doubt with one indistinguishable from the lesser preponderance- of-the-evidence standard. As with CALJIC No.2.21.2, the Winship requirement ofproof beyond 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 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.) Thejury wasinstructed with former CALJIC No.2.51 as follows: Motiveis not an element of the crimes charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive maytendto establish guilt. Absence of motive may tend to establish innocence. You will therefore give its presence or -302- absence, as the case may be, the weight to which youfindit to be entitled. (CT 10:2245; RT 63:8184-8185.) 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 of motive 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].) “Tt is critical that the moral force of the criminal law not be diluted by a standardofproof that leaves people in doubt whether innocent men are being condemned.” (Un re Winship, supra, 397 U.S.at p. 364.) Each ofthe 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 many instructions permitting conviction upon a lesser showing, no reasonable juror could have been expected to understand that he or she could not find appellant guilty unless every element of the offense was provenby the prosecution beyond a reasonable doubt. The instructions challenged here violated 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. I, § 16), and a reliable capital trial (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, § 17). -303- 3. This Court Should ReconsiderIts Prior Rulings Upholding the Defective Instructions Although each ofthe challenged instructions violated appellant’s federal constitutional rights by lessening the prosecution’s burden,this Court has repeatedly rejected constitutional challenges to many ofthe 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 No. 2.02]; People v. Jennings (1991) 53 Cal.3d 334, 386 [circumstantial-evidence instructions].) While recognizing the shortcomings of some of those instructions, this Court has consistently concluded that the instructions must be viewed “as a whole,” and that when so viewed the instructions 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. That analysis is flawed. First, what this Court characterizesas the “plain meaning”ofthe instructions is not whatthe instructions say. (See People v. Jennings, supra, 53 Cal.3d at p. 386.) The question is whether there is a reasonable likelihood the jury applied the challenged instructions in a way that violates the Constitution (Estelle v. McGuire, supra, 502 U.S. at p. 72), and there certainly is a reasonable likelihood that the jury applied the challenged instructions according to their express terms. Second, this Court’s essential rationale — that the flawed -304- instructions are “saved”by the language of CALJIC No. 2.90 — requires reconsideration. (See People v. Crittenden, supra, 9 Cal.4th at p. 144.) An instruction that dilutes the beyond-a-reasonable-doubt standard ofproof on a specific point is not cured by a correct general instruction on proof beyond a 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 overcomethe prejudicial effect of a misstatement when the bad instruction is 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-doubtinstruction was qualified or explained by the other instructions that contain their own independent references to reasonable doubt. F. AppellantIsEntitled To A New Trial These errors were not harmless. Rather, the instructional errors individually and cumulatively warrant vacating the conviction, special- circumstance finding, and death judgment. The court’s refusal of appellant’s requested instructions impeded -305- the jury’s consideration of appellant’s defense theory. The lack of culpability of murder for failing to prevent Veronica from abusing and killing Genny formed the legal centerpiece of appellant’s defense. The statements Veronica madeto the police at the apartment complex comprised a major componentof appellant’s evidentiary support for his defense. Accordingly, instructions informing the jury ofthe legal underpinningofhis defense andthe legal significance of Veronica’s false statements were essential. As stated above, the trial court did not relate the substance of the requested instructionsin the jury instructions that were given. Accordingly, the rejected instructions would have impacted the jury’s understanding of the legal concepts governingthiscase. Hadthetrial court given the requested instructions, it is reasonably probable that the jury would not have convicted appellant offirst degree murder. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant presented significant evidence that he perpetrated none of the abusive acts and that he was, at most, merely present for the infliction of some ofthem. At least one juror erroneously found appellant guilty because ofhis failure to prevent Genny’s death. (CT 11:2438.) Moreover, the evidence of appellant’s culpability was hotly contested. The state of the evidence,as well as the jury’s seven-day guilt-phase deliberations, showsthat this was a close case. (See ante, at pp. 85-87.) It is likely that the requested instructions would havetipped the scales, which were virtually in equipoise, toward acquittal. The due process violation stemming from the court’s refusalto issue the requested instructions wasalso prejudicial. The failure to instruct the jury on the defense theory ofthe case is reversible error underthe federal constitution if evidence supports the theory and other instructions do -306- not adequately cover the defense theory. (See Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 743.) As discussed above, the requested instructions had evidentiary support and were not adequately addressed in the instructions that the court issued. Thus, the constitutional error was not harmless beyond a reasonable doubt. (See Chapmanv. California (1967) 386 U.S. 18, 24.) Theerroneousinclusion of the CALJIC No.2.04 instructionin the jury charge impermissibly inflated the jury’s perception of appellant’s consciousnessof guilt. Neither the state-law error nor the due process violation were harmless. Hadthetrial court not erroneously given CALJIC No. 2.04,it is reasonable probable that the jury would not have convicted appellant of murder. The inclusion of the instruction in the jury charge insinuated that the prosecution had evidence that appellant had sought to persuade IvanJr. to lie to law-enforcement authorities. Because this was a close case for determining guilt, this instruction may well have tipped the balancedscales toward a conviction. Respondentcannot show that the due process violation resulting . from the instructional error was harmless beyond a reasonable doubt. (See Rose v. Clark (1986) 478 U.S. 570, 582 [applying harmless-error analysis to evaluate whetherinstructional error required reversal of defendant’s conviction].) The instruction created an impermissible basis upon which the jury could convict appellant of first degree murder. Dueto the possibility that the erroneous instruction may have impacted the jury’s deliberations and contributed to the conviction, the due process violation caused by the instruction’s permissive presumption wasnot harmless. The omission of the nexus element in CALJIC No. 8.81.18 resulted -307- in the jury finding the special circumstance without determining whether a nexus existed betweenthe torture and the homicide. That error was not harmless beyond a reasonable doubt. (See People v. Prieto (2003) 30 Cal.4th 226, 256-257 [explaining that this Court uses Chapman harmless- error standard for omission of element in special-circumstance instruction].) Unlike a case in which the alleged torture immediately preceded the homicide (see People v. Bemore (2000) 22 Cal.4th 809, 843-844; People v. Barnett (1998) 17 Cal.4th 1044, 1162), in this case the prosecutor theorized that the torture occurred for several weeks preceding Genny’s death. (RT 63:8045.) The jury may well have concluded that appellant possessed the intent to torture Genny weeks before her death, but not at the time of Genny’s death. In view of appellant’s admissions to scaring Genny during the weeks before her death and the evidence that appellant had left the apartmentshortly before Genny sustained the fatal burns,the jury likely found the intent to torture without finding any connection betweenthat intent to torture and Genny’s death. The torture-murder special circumstance should be vacated although the jury convicted appellant of murderby torture. The torture-murder theory offirst degree murderrequired that the acts committed with the intent to torture have caused the victim’s death; however, the jury apparently finding the causation elementinthis case does not render the omission of the element in CALJIC No.8.81.18 harmless. Numerous, significant errors impacted the jury verdict on the murder charge. For instance, the trial court’s erroneousrefusal to give appellant’s requested instructions regarding his theory of defense and erroneousinclusion of CALJIC No.2.04 increased the likelihood that the jury would convict appellant. Likewise, the trial court’s exclusion ofcritical defense evidence — -308- also increased the likelihood of a conviction. (See ante, Claims I andII.) Theseerrors impacted the state of the evidence and the mannerin which.the jury perceived the evidence that waspresented at trial. Consequently, the errors underminedthe reliability of the jury verdict, including the implied finding that appellant’s acts (as either a perpetrator or an aider and abettor), committed with the intent to torture, caused Genny’s death. An error should not be found harmless due to the collateral impact of othererrors. Therefore, the special-circumstance finding cannot survive the omitted element in CALJIC No. 8.81.18. Because the erroneouscircumstantial-evidence instruction required conviction on a standard of proof less than proof beyond a reasonable doubt, its delivery was a structural error that is reversible per se. (See Sullivan v. Louisiana, supra, 508 U.S. at pp. 280-282.) At the very least, becauseall ofthe instructions violated appellant’s federal constitutional rights, reversal is required unless the prosecution can showthat the error was harmless beyond a reasonable doubt. (See Carella v. California, supra, 491 USS.at pp. 266-267.) The prosecution cannot make that showing here, becauseits proof of appellant’s guilt and evidence in support of the lone special circumstance was weakfor all of the reasons previously discussed. Given the dearth of direct evidence, the instructions on circumstantial evidence were crucial to the jury’s determination of guilt. By distorting the jury’s consideration and use of circumstantial evidence, and diluting the reasonable-doubt requirement, CALJIC No. 2.02 underminedthereliability of the jury’s findings. CALJIC Nos.2.21.2, 2.22, and 2.51 further subverted the reasonable-doubt requirement. The dilution of the reasonable-doubt -309- requirementby 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, 33 Cal.3d at p. 505.) Because the conviction and special circumstance formed the only basis for finding appellant death-eligible,vacating either the conviction or special-circumstance finding requires vacating the death judgment. -310- XVIII THE TRIAL COURT COMMITTED SEVERAL PREJUDICIAL PENALTY-PHASE INSTRUCTIONAL ERRORS At the penalty phaseofthe first trial, the trial court erroneously rejected several instructions that appellant had proposed. Thoserulings remained in effect at the penalty retrial. The court made additional instructional errors at the penalty retrial. These errors require vacating the death judgment. A. The Court Erred WhenIt Refused To Instruct The Jury Which Capital-Sentencing Factors Could Be Either Aggravating Or Mitigating And Which Factors Could Only Be Mitigating During the penalty phase ofthefirst trial, appellant sought to either replace or supplement CALJIC No. 8.85 with tworelated instructions. Defendant’s Proposed Instruction No. 1 would have instructed the jury that factor (a) (circumstancesofthe offense) could be either aggravating or mitigating and constituted the only factor that could be considered as an aggravating factor. (CT 10:2177.) Defendant’s ProposedInstruction No. 2 would have done the same. (CT 10:2178-2180.) The court denied that request and instead gave CALJIC No.8.85,** which doesnot delineate which ofthe factors can and cannot be aggravating factors. (RT 69:8821; RT 99:12735-12737; CT 12:2661-2663.) Rejecting the proposed instructions and giving CALJIC No. 8.85 waserroneousand violated appellant’s rights under the Eighth and Fourteenth Amendments to the United States Constitution andarticle I, _ §8 The court’s rulings rejecting the proposed instructions remainedin effect for the penalty retrial. (RT 75:9383; RT 81:9551.) -311- sections 7, 15, and 17 of the California Constitution. Appellant’s jury was left free to concludethat a “not” answeras to any of these “whetheror not” | sentencing factors.could establish an aggravating circumstance. Consequently, the jury was invited to aggravate appellant’s sentence based on non-existentor irrational aggravating factors precludingthereliable, individualized, capital-sentencing determination required by the Eighth and Fourteenth Amendments. Although this Court has often rejected this claim (see, e.g., People v. Ramirez (2006) 39 Cal.4th 398, 469), appellant urges this Court to reconsider that ruling. (See People v. Schmeck (2005) 37 Cal.4th 240, 304.) Althoughthefirst two proposedinstructions inaccurately labeled factor(i) as mitigating only (see People v. Stanley (1995) 10 Cal.4th 764, 831), rejecting the instruction in its entirety was not appropriate. Though the court noted that factor (i) could be aggravating,it rejected the instruction becauseit preferred CALJIC No. 8.85, not because of factor(1). Moreover,if the court had rejected the proposed instructions onthat basis, | appellant could have modified the proposed instructions. Instead, appellant had no opportunity to modify the instruction; besides, the modification would have beenfutile. | B. The Court Erred WhenIt Refused Appellant’s Modified Instructions Pertaining To The Catch-All Mitigating Factor Defendant’s ProposedInstruction No.2 would have instructed the jury that factors (b), (c), (d), (e), (£), (g), (h), (i), Gj), and (k), as well as a secondary catch-all factor labeled(1),*’ could be considered only as 8 In pertinentpart, factor (1) reads: Mitigating factors also include any sympathetic, -312- mitigating factors. It also delineated appellant’s nonstatutory mitigating factors. Defendant’s Proposed Instruction No. 12 split factor (k) into factors (k) and(1),” but neitherlisted any nonstatutory mitigating factors nor specified which factors were aggravating and which were mitigating. (CT 10:2193-2194.) The court, however, denied appellant’s requests and instead gave CALJIC No.8.85,"! which does not delineate which of the factors can and cannot be aggravating factors. (RT 69:8821, 8843-8844; RT 99:12735-12737; CT 12:2661-2663.) Rejecting the proposed instructions and giving CALJIC No. 8.85 was erroneous and violated appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights. It was error not to delineate appellant’s nonstatutory mitigating compassionate, merciful or other aspect of the defendant’s background, character, record, or social history that the defendant offers as a basis for a sentence less than death, whetheror not related to the crime for which heis ontrial. (CT 10:2179.) © Factor(k) reads: Any other circumstance which extenuates the gravity of the crime even thoughit is not a legal excuse for the crime. In pertinent part, factor(1) reads: Sympathyor any other aspect of the defendant’s character or record that the defendant offers as a basis for a sentence less than death, whetheror not related to the crime for which he is on trial. (CT 10:2194.) *! The court’s rulings rejecting the proposed instructions remained in effect for the penalty retrial. (RT 75:9383; RT 81:9551.) -313- factors. An instruction containing a list of nonstatutory mitigating factors amountedto a pinpoint instruction. A defendantis entitled to pinpoint instructions so long as the instructions correctly stated the law and had evidentiary support. (See ante, at p. 287.) Because the requested instruction’s list of nonstatutory mitigating factors were indeed mitigating, the instruction correctly stated the law. In addition, the nonstatutory mitigating factors delineated in the instruction, which included whether appellant attempted to avoided arrest or had a goodjail record, wereall supported by the evidence. Moreover, the instruction was not duplicative; CALJIC No. 8.85 generally defined factor (k), and no instruction fleshed out what categories of mitigating evidence could constitute factor (k) mitigation. Accordingly,the trial court erred by refusing the instruction. The denial of the instruction impeded full consideration of appellant’s mitigating evidence; as a result, the error violated appellant’s Eighth and Fourteenth Amendmentrights. (See Smith v. Texas (2004) 543 U.S. 37, 46.) Moreover, the court’s refusal to modify CALJIC No. 8.85 to include a factor(1) catch-all factor was erroneous. Factor(1) in Defendant’s ProposedInstruction No. 2 would have informed the jury that compassion and mercy were permissible mitigating factors; factor (k) in CALJIC No. 8.85 does not makethat clear. Although factor (1) in Defendant’s Proposed Instruction No. 12 merely split factor (k) into two mitigating factors, the instruction eliminated the ambiguity in factor (k) and would have ensured that the jury did not incorrectly believe that mitigating factors had to relate to the crime. The denial of both ofthese proposed modifications to CALJIC No. 8.85 infringed appellant’s Eighth and Fourteenth Amendment rights to have the jury give full consideration to his mitigating evidence. -314- C. The Court Erred When It Refused To Instruct The Jury That It Should Not Limit Its Consideration Of Mitigating Evidence to The Delineated Factors Atthe first trial, appellant requested the court to instruct the jury with Defendant’s Proposed Instruction No. 3, which stated: The mitigating circumstancesthat I have read for your consideration are given to you merely as examples of some ofthe facts that you may take into accountas reasons for deciding not to impose a death sentence in this case. But you should not limit your consideration of mitigating circumstancesto these specific factors. You may also consider any other circumstancerelating to the case or to the defendant as shownby the evidence as reasons for not imposing the death penalty. . Any one ofthe mitigating factors, standing alone, may support a decision that death is not the appropriate punishmentin this case. (CT 10:2181.) Thetrial court, stating that the proposed instruction defined mitigating too broadly, rejected the instruction.” (RT 69:8822-8825.) That, too, waserrorthat violated appellant’s rights under the Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, and 17 of the California Constitution. The proposedinstruction did not define mitigation too broadly. A capital defendanthas the right to present and have the jury consider evidence regarding any aspect of his character, background, or record, as well as the circumstancesof the offense, that could justify a sentence less than death. (See Penry v. Lynaugh (1989) 492 U.S. 302, 318- 320.) The proposedinstruction would haveillustrated to the jury the expanseof appellant’s right to present and have considered mitigating *° The court’s ruling rejecting the proposed instruction remained in effect for the penalty retrial. (RT 75:9383; RT 81:9551.) -315- evidence. Although the United States Supreme Court has deemedthat the factor (k) (catch-all) instruction does not offend Eighth Amendment | principles (see Boyde v. California (1990) 494 U.S. 370, 381-383),” the requestedinstruction better explicated the scope of mitigation than CALJIC No. 8.85, which excluded appellant’s background from the scope of the catch-all mitigating factor. (CT 12:2663.) Because the requested instruction more accurately defined the constitutionally mandated scope of mitigation, the trial court erred by refusingit. D. The Court Erred When It Refused To Instruct The Jury That It May Return A Life Sentence For Any Reason Atthe first trial, appellant sought to have thetrial court give one of two alternative proposed instructions. Defendant’s Proposed Instruction No.7 read: You may spare the defendant’s life for any reason you deem appropriate and satisfactory, or for no reasonat all. If something arouses mercy, sympathy, empathy or compassion suchas to persuade you that death is not the appropriate penalty, you may act in responsethereto. (CT 10:2186.) The court declined the defense request.” By refusing to give this instruction, the court erred and violated appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15 and 17 rights. The Eighth and Fourteenth Amendments require that jury instructions permit a jury to give full consideration and full effect to mitigating evidence. (Johnson v. Texas (1993) 509 U.S. 350, 381 (dis. opn. 3 The Supreme Court’s adjudication pertained to CALJIC No. 8.85’s predecessor, but appears to govern CALJIC No.8.85 as well. * The court’s ruling rejecting the proposed instructions remained in effect for the penalty retrial. (RT 75:9383; RT 81:9551.) -316- by O’Connor, J.), quoted in Penry v. Johnson (2001) 532 U.S. 782, 797.) Neither CALJIC No. 8.85 nor CALJIC No. 8.88 inform the jury that mercy, sympathy, empathy, compassion, or anything else could providea sufficient basis upon whichto return a life verdict. Particularly in a case like this one in which a defendant presents extensive execution-impact evidence and has no criminal record or history of violence, the jury may well have reacted to the mitigating evidence by feeling sympathy, empathy, compassion,or the desire to be merciful. The requested instruction would have given the jury an avenueto give full effect to the mitigating evidence, and thusthetrial court’s rejection of the requestedinstruction violated appellant’s constitutional rights. Although this Court upheld the denial of a similar proposed instruction in People v. Ledezma (2006) 39 Cal.4th 641, 739, appellant urges this Court to reconsider that decision. (See People v. Schmeck (2005) 37 Cal.4th 240, 304.) E. The Court Erred When It Instructed The Jury That It Need Not Be UnanimousIn Finding Aggravating Factors Defendant’s Proposed Instruction Nos. 13 and 14 would have instructed the jury that it may consider in the weighing process mitigating factors that the jury did not find unanimously. (CT 10:2161-2163.) The trial court agreed to modify CALJIC No. 8.88 to include that instruction, but also ruled that the jury should be instructed that non-unanimous ageravating factors may also be considered. (RT 69:8845-8848.) At the penalty retrial, the court instructed the jury in accordance with that ruling. (CT 12:2665-2667.) That waserror. It violates the Sixth, Eighth, and Fourteenth Amendments to impose a death sentence whenthereis no assurance the jury, or even a majority of the jury, ever found a single set of aggravating circumstances that warranted -317- 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 by statute or as a constitutional procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749.) The Court reaffirmed this holding after the decision in Ring v. Arizona, supra, 530 U.S. at p. 604. (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 underthe overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. “Jury unanimity .. . is an accepted,vital mechanism to ensure that real and full deliberation occurs in the jury room, andthat the jury’s ultimate decision will reflect the conscience of the community.” (McKoy v. North Carolina (1990) 494 U.S. 433, 452 (conc. opn. of Kennedy,J.).) Thefailure to require that the jury unanimously find the aggravating factors true also violates the equal protection clause of the federal Constitution. In California, when a criminal defendant has been charged with special allegations that may increase the severity of his sentence, the jury must render a separate, unanimousverdict on the truth of such allegations. (See, e.g., Pen. Code, § 1158a.) Because capital defendants are entitled to more rigorous protections than those afforded noncapital defendants (see Monge v. California (1998) 524 U.S. 721, 732; Harmelinv. Michigan (1991) 501 U.S. 957, 994) — and, because providing more protection 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 -318- the requirement to an enhancementfinding that may carry only a maximum punishmentof one yearin 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 Amendmentandby its irrationality violate both the due process clause of the Fourteenth Amendment andthe cruel and unusual punishmentclause of the Eighth Amendmentto the federal constitution, as well as the Sixth Amendment’s guarantee ofa trial by jury. Appellant asks this Court to reconsider Taylor and Prieto and require jury unanimity as mandated by the federal Constitution. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) F. The Court Erred WhenIt Refused To Give A Lingering-DoubtInstruction At The Penalty Retrial Atthe penalty retrial, appellant requested that CALJIC No.8.85 be modified to instruct the jury that it could, when determining whether appellant should be sentenced to death, consider any doubt about the extent of appellant’s involvementin the offense. The trial court, believing that the lingering-doubt instruction would be one-sided, declined to makethe requested modification. (RT 99:12710-12712.) The court’s ruling was erroneousand infringed appellant’s rights under the Eighth and Fourteenth Amendments andarticle I, sections 7, 15, and 17. The Eighth and Fourteenth Amendmentsto the United States Constitution guarantee appellant the right to have relevant mitigating evidence considered by the penalty jury. (See Skipper v. South Carolina (1986) 476 U.S.1, 4; Lockett v. Ohio (1978) 438 U.S. 586, 604.) This right maybe violated even though he was permitted to introduce that mitigating -319- evidence. (See Penry v. Lynaugh (1989) 492 U.S. 302, 319.) UnderCalifornia law, evidence tending to prove a lingering doubt in the defendant’s guilt for the offense is relevant mitigating evidence. (People v. Sanchez (1995) 12 Cal.4th 1, 77-78; People v. Terry (1964) 61 Cal.2d 137, 145-147.) Because lingering-doubt evidenceis relevant mitigating evidence, as defined by state law, the Eighth and Fourteenth Amendments entitled appellant to the requested lingering-doubtinstruction. Appellant wasentitled to the lingering-doubt instruction notwithstanding the United States Supreme Court’s recent opinion in Oregon v. Guzek (2006) __-: U.S. __, 126 S. Ct. 1226. Guzek concerned a limitation on evidence, not the refusal of an instruction, and did not hold that there is no Eighth Amendmentright to present lingering-doubt evidence. Moresignificantly, appellant’s right to the instruction is derived from his right to present evidence understate law. G. The Court Erred When It Amended CALJIC No. 8.88 To Instruct The Jury That It Must Return A Death Verdict If Aggravation So Substantially Outweighs Mitigation That Death Is Warranted At the penalty retrial, the trial court modified CALJIC No.8.88. With respect to the jury’s ultimate sentencing decision, the court instructed the jury as follows: If you conclude that the aggravating circumstances are so substantial in comparison to the mitigating circumstances that they warrant death instead oflife without parole, you shall return a judgment of death. (CT 12:2666.) This modified instruction, which the court gave over defense counsel’s strenuous objection (RT 99:12712-12716, 12738-12740), was erroneous. Theinstruction ran afoul of state law. The CALJIC instruction, -320- whichstates that each juror “must be persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead oflife without parole” in order to return a death verdict (CALJIC No. 8.88),is lifted directly from this Court’s opinion in People v. Brown (1985) 40 Cal.3d 512, 541 & fn. 13, 544, fn. 17, revd. on other grounds (1987) 497 U.S. 538. The use note proscribesthetrial court’s modified instruction: “The court should never instruct the jury in penalty phase that it ‘shall’ impose a sentence of death.” (CALJIC No. 8.88, use note.) The instruction in this case is unusual because, unlike in other cases with mandatory instructions, the court instructed the jury with the forbidden mandatory language fourteen years after this Court barred such instructions in People v. Brown, supra. \n recent years, this Court has been reluctant to find Brownerror in cases wherethetrial court gave the standard CALJIC instruction before this Court decided Brown and whenthetrial court believed that the mandatory language, which tracks the text of Penal Code section 190.3, was valid under California law. (See, e.g., People v. Cox (2003) 30 Cal.4th 916, 965.) In this case, however, the trial court was well awarethat California law bars such mandatory language. Although the mandatory languagein this case providedfor a higher threshold for reaching a death verdict than CALJIC No.8.84.2 did,thetrial court’s instruction nevertheless impermissibly shifted the jury’s death- sentencing decision from permissive to mandatory. Under Brown,the jury may sentence a defendantto death only if all twelve jurors conclude that the aggravating factors are so substantial in comparison to the mitigating factors that a death sentence is appropriate. In contrast, the trial court’s instruction compelled the jury to sentence appellant to death if those -321- circumstances were met. Moreover, the instruction foreclosed a full consideration of mercy for appellant. Under state law, the jury may render a life verdict as an act of mercy despite concluding that aggravation was so substantial to mitigation that death is warranted. The court’s instruction foreclosed the jury from engaging in such an act of mercy. The court’s modification to the CALJIC No.8.88 instruction violated appellant’s Eighth and Fourteenth Amendmentandarticle I, section 7, 15, and 17 rights. Because state law gave appellanta right to a permissive instruction regarding the jury’s ultimate sentencing decision, the mandatory instruction constituted a due process violation. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346.) Though a mandatory instruction is not a perse violation ofthe Eighth Amendment(Blystonev. Pennsylvania (1990) 494 U.S. 299, 307), the instruction in this case infringed appellant’s Eighth Amendmentrights. Because state law permits a jury to exercise mercy and rendera life verdict despite concluding that aggravation wasso substantial to mitigation that death is warranted, the mandatory instruction prevented the jury from giving full consideration to mercy, as defined by state law. H. The Court Erred When It Gave CALJIC Nos. 8.85 And8.88 Despite Their Fundamental Flaws At the penalty retrial, the trial court instructed the jury with CALJIC Nos. 8.85 and 8.88. In addition to the aspects ofthose instructions that appellantlitigated in pretrial motions (see ante, Claim XVI) and sought to modify (see ante, pp. 311-320), the standard instructions were deeply flawed, andthetrial court erred by giving them. 1. The Breadth of Factor (a) Violated Appellant’s Constitutional Rights Penal Codesection 190.3, factor (a) directs the jury to consider in -322- aggravation the “circumstancesofthe crime.” (CALJIC No. 8.85; CT 12:2661.) In this case, the circumstances of the offense comprised the lone aggravating factor. Prosecutors throughout California have arguedthat the jury could weigh in aggravation almost every conceivable circumstance of the crime, even thosethat, from caseto case, reflect starkly opposite circumstances. Of equal importanceis the use of factor (a) to embracefacts that cover the entire spectrum of circumstances inevitably present in every homicide; facts such as the age ofthe victim,the age of the defendant, the method ofkilling, the motive for the killing, the time ofthe killing, and the location of the killing. This Court has never applied 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].) As a result, the concept of aggravating factors has been applied in such a wanton and freakish mannerthat almostall features of every murder can be and have been characterized by prosecutors as aggravating. As such, California’s capital-sentencing schemeviolates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because it permits the jury to assess death upon nobasis other than that the particular set of circumstances surrounding the instant murder were enough in themselves, without some narrowingprinciple, to warrant the imposition of death. (See Maynardv. Cartwright (1988) 486 U.S. 356, 363; but see Tuilaepa v. California (1994) 512 U.S. 967, 987-988 [factor (a) survived facial challenge at time of decision].) This Court has repeatedly rejected the claim that permitting the jury to consider the “circumstances of the crime” within the meaning of factor (a) in the penalty phase results in the arbitrary and capricious imposition of the death penalty. (See People v. Kennedy (2005) 36 Cal.4th -323- 595, 641; People v. Brown (2004) 34 Cal.4th 382, 401.) Appellant urges this Court to reconsider this holding. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) 2. The Instructions Failed to Impose a Burden of Proof on the Prosecution or Inform the Jury That There Was No BurdenofProof State law provides that the prosecution always bears the burden of proofin a criminal case. (Evid. Code, § 520.) Evidence Code section 520 creates a legitimate state expectation as to the way a criminal prosecution will be decided and appellant is therefore constitutionally entitled under the Fourteenth Amendmentto the burden ofproofprovided for by that statute. (See 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 prosecution 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 presumedthatlife without parole was an appropriate sentence. CALJIC Nos.8.85 and 8.88, the instructions given here (CT 12:2661-2663, 2665-2667), failed to provide the jury with the guidance legally required for administration of the death penalty to meet constitutional minimum standards, in violation of the Sixth, Eighth, and Fourteenth Amendments. This Court has held that capital sentencing is not susceptible to burdens 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.) Appellant urges this Court to reconsiderits ruling. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) Even assuming it were permissible not to have any burden ofproof, -324- the trial court erred prejudicially by failingto articulate that to the jury. (Cf. People v. Williams (1988) 44 Cal.3d 883, 960 [upholdingjury 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 voted for the death penalty because of a misallocation of a nonexistent burdenofproof. 3. The Penalty Retrial Jury Should Have Been 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 innocence. Paradoxically, however, although the stakes are muchhigherat 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 of law (U.S. Const., Amend. 14th), his right to be free from cruel and unusual punishment and to have his sentence determined in 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 (1996) 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 held that “the -325- state may otherwise structure the penalty determinationas it sees fit,” so long as state law otherwise properly limits death-eligibility. (/d. at p. 190.) Appellant urges this Court to reconsiderits decision. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) As the other sections ofthis brief demonstrate, this state’s capital-sentencing scheme is remarkably deficient in the protections neededto insure the consistent and reliable imposition of capital punishment. Therefore, a presumption-of-life instruction is constitutionally required. 4. The Instructions Caused the Penalty Determination to Turn on an Impermissibly Vague and Ambiguous Standard The question ofwhether to impose the death penalty upon appellant hinged on whether the jurors determined that “the aggravating circumstances are so substantial in comparisonto the mitigating circumstances that they warrant death instead oflife without parole.” (CT 12:2666.) The phrase “so substantial”is an impermissibly broad phrase that does not channel or limit the sentencer’s discretion in a mannersufficient to minimizethe risk of arbitrary and capricious sentencing. Consequently,this instruction violated 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. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) -326- 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 case is whether death is the appropriate penalty. (Woodson v. North Carolina, supra, 428 U.S.at p. 305.) Yet, CALJIC No. 8.88 does not makethis clear ~ to jurors; rather it instructs them they can return a death verdictif the aggravating evidence “warrants” death rather than life without parole. These determinations are not the same. To satisfy the Eighth Amendment“requirementof individualized sentencing in capital cases” (Blystone v. Pennsylvania (1990) 494 U.S. 299, 307), thepunishment must fit the offense and the offender, i.e., it must be appropriate. Onthe other hand,jurors find death to be “warranted” when they find the existence of a special circumstance that authorizes death. (See People v. Bacigalupo (1993) 6 Cal.4th 457, 462, 464.) By failing to distinguish between these determinations, the jury instructions violated the Eighth and Fourteenth Amendments to the federal Constitution. This Court previously has rejected this claim (People v. Arias, supra, 13 Cal.4th at p. 171), but appellant urges this Court to reconsider that ruling. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) 6. The Instructions Violated the Equal Protection Clause Asa productofthe flawed instructions described in this claim and in Claim XVI, California’s death-penalty schemeprovidessignificantly 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 -327- non-capital felony defendants, those differences justify more, not fewer, proceduralprotections 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 reasonsjustifying the defendant’s sentence. (People v. Sengpadychith (2001) 26 Cal.4th 316, 325; California Rules of Court, rule 4.42, subds. (b), (€).) In a capital case, there is no burden of proofat all, and the jurors need not agree on what aggravating circumstances apply nor provide any written findings tojustify 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 this Court to reconsider that ruling. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) I. Appellant Is Entitled To A New Trial These errors were not harmless. Rather, the instructional errors individually and cumulatively warrant reversal of appellant’s death sentence. The refusalto inform thejury that only factors (a) and (i) could be aggravating gave the jury the mistaken impression that the absence of mitigation was aggravating or, worseyet, that mitigating evidence could be used as a basis for, rather than against, a death sentence. The court’s refusal to modify the jury instruction with respect to the catch-all mitigating factor reducedtheability and likelihood that the jury would givefulleffect to appellant’s mitigating evidence. The court’s unwillingness to instruct the jury that mitigation was not limited to the delineated factors or that the jury _ could return a life verdict for any reason had a similar impact. Instructing the jury that it need not find aggravating factors unanimously impermissibly -328- increased the weight of the aggravating evidence. Declining the lingering- doubt instruction further restricted the jury’s ability to give full effect to appellant’s mitigating evidence. The court’s mandatory instruction also limited the jury’s consideration of mitigating evidence and, by requiring the jury to render a death verdict under the specified conditions, increased the likelihood that the jury would indeed deliver a death verdict. The other flaws inCALJIC Nos.8.85 and 8.88 also exaggerated the jury’s perception of the strength of the aggravating evidence and derogated the weightofthe mitigating evidence. Viewedin isolation, each of these instructional errors added a thumb on death’sside ofthe scale for the jury’s delicate balancing between ageravating and mitigating factors. Taken together, the errors provided the weight of two hands supporting a death verdict. Given evidence of appellant’s minimal, or lack of, participation in the offense and his nonviolent and noncriminal history and the closenessofthis case (see ante, at pp. 93-94), these errors were not harmless as a matter of state law or federal constitutional error. (See People v. Brown (1988) 46 Cal.3d 432, 448; Satterwhite v. Texas (1988) 486 U.S. 249, 258-259; Chapmanv. California (1967) 386 U.S. 18, 24.) Consequently, appellant’s death sentence must be vacated. -329- XIX THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTIONS TO MODIFY THE DEATH SENTENCE Following the penalty retrial, appellant moved to modify the death sentence under Penal Codesection 1181, subdivision (7). The motion had two strands: an automatic motion to modify governed by Penal Code section 190.4, subdivision (e) and an as-applied constitutional challenge to the death sentence pursuant to People v. Dillon (1983) 34 Cal.3d 441, 480- 481. (CT 12:2730-2780.) Despite the dearth of evidence of appellant’s participation and appellant’s nonviolent and crime-free history, the court denied both aspects of the modification motion. (RT 103:12959-12965, 12968-12970; CT 12:2812-2814.) That was error. Furthermore, the denial of the motion hadthe effect of violating appellant’s Eighth Amendment rights. A. The Court Erred In Denying The Automatic Motion To Modify The Death Sentence Thetrial court erred in denying the automatic motion to modify. On appeal, this Court undertakes an independentreview ofthetrial court’s ruling. (See People v. Steele (2002) 27 Cal.4th 1230, 1267.) The weight of the evidence does not support the death verdict. The dearth of evidence that appellant wasa participant, let alone a major participant, in the offense and appellant’s lack of violent or criminal history demonstrate that the weight of the evidence did not support the death verdict. B. The Court Erred In Denying The Dillon Motion to Modify The court committed a separate error when it denied the motion to modify made pursuant to People v. Dillon, supra, 34 Cal.3d at pp. 480-481. -330- Whena death sentenceis disproportionate to a defendant’s individual culpability, the sentence violates the Eighth Amendmentto the United States Constitution and article I, section 17 of the California Constitution, and should be modified by the trial court. (See People v. Millwee (1998) 18 Cal.4th 96, 168; People v. Lang (1989) 49 Cal.3d 991, 1045-1046.) Based on appellant’s limited, or nonexistent, participation in the offense, the minimal evidence ofhis alleged intent to kill, and his nonviolent, crime-free history, appellant’s death sentence is disproportionate to his culpability. Consequently, the court erred when it denied the Dillon motion to modify. C. The Denial Of The Dillon Motion Violated Appellant’s Constitutional Rights The denial of appellant’s Dillon motion to modify was not merely state-law error. Theruling also infringed appellant’s Eighth Amendment andarticle I, section 17 rights to be free from cruel and unusual punishment. Asstated above, the death sentence is disproportionate to appellant’s culpability. Accordingly, the death sentence, and thetrial court’s denial of the Dillon motion, violated appellant’s Eighth Amendment andarticle I, section 17 rights. (See Solem v. Helm (1983) 463 U.S. 277, 290.) | D. The Death Sentence Must Be Reversed Anyofthe court’s errors in denying the multifaceted motion to modify requires the reversal of appellant’s death sentence. -331- XX REVERSALIS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS THAT UNDERMINED THE FUNDAMENTAL FAIRNESS OF THE TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENT Even where nosingle error when examinedin isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may require reversal. (See Kyles v. Whitney (1995) 514 U.S.419, 436-437 [the cumulative effect of errors, none of which individually are significant, could be collectively significant]; People v. Hill (1998) 17 Cal.4th 800, 844-847 [reversing death sentence due to cumulativeerror]). 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 introducedattrial against the defendant. (United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1476, quoted in United States v. Frederick (9th Cir. 1996) 78 F.3d 1370, 1381.) Reversal is thus required unless the cumulative effect ofall of the errors was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24; People v. Williams (1971) 22 Cal.App.3d 34, 58-59 [applying Chapman standardtototality ofthe errors whenerrors of federal constitutional magnitude combined with other errors].) Theerrors in this case synergistically combined to deprive appellant of a fair trial. If this Court concludes that no individual error is reversible, this Court must vacate the conviction, special-circumstance finding, and death judgment because the cumulative effect of the errors was not harmless. -332- Thetrial court excluded several components of appellant’s evidence proffered to support his guilt-phase and penalty-phase defenses. Throughout the proceedings below, evidence of the abuse Veronica suffered and observed when she wasa child and of Veronica’s antipathy for her sister Mary was excluded. (See ante, Claims I and II.) At the penalty retrial, the trial court barred appellant from presenting evidence of — Veronica’s admissionsto police,eliciting evidence of Ivan Jr.’s role as a prosecution witness and howthat role would contribute to the impact that appellant’s execution would haveon IvanJr., and exhibiting his children to the jury. (See ante, ClaimsII, IV, and V.) Most of the excluded evidence supported appellant’s defense theory that Veronica wasthe sole, or the primary, perpetrator of the offense. Viewed individually, these errors were prejudicial. Considered together, the exclusion of defense evidence prevented appellant from defending himself against the murder charge and the special-circumstanceallegation, and neutered appellant’s penalty-retrial defense. On the otherside ofthe coin, the trial court’s erroneous admission ofprosecution evidence wasindividually and cumulatively harmful. The admission of Ivan Jr.’s preliminary hearing testimonyat the first trial and the admission of appellant’s interrogation at both trials were highly prejudicial (see ante, Claims IX and XJ): Without those videotapes, no evidence provided anybasis for concluding that appellant, rather than Veronica, committed any of the acts against Genny. The prosecutor’s references to extra-record facts improperly enhanced the weight ofthe prosecution evidence. (See ante, Claims XIV and XV.) In addition, admission of the photos and mannequin,and the prosecutorial misconduct at the guilt phase and penalty retrial combined to inflame the jury’s passions -333- and thereby increasedthe likelihood of a conviction, special-circumstance finding, and death verdict. (See ante, Claims XII, XIV, and XV.) Furthermore, the instructional errors at the guilt phase and penalty retrial all served to make a conviction, special-circumstance finding, and death verdict more likely. (See ante, Claims XVII and XVIII.) When these errors are considered with the effect of the other errors, the jury verdicts wereall tainted by error. The panoply of errors affected the court’s evaluation of appellant’s automatic motion to modify the death sentence. In denying the motion,the trial court concluded that the aggravating weight of factor (a) was enormous and that appellant was an active participant (RT 103:12962-12963; CT 12:2812-2813); however, the exclusion of the strongest evidence of appellant’s nonparticipation, or minorparticipation, tainted the trial court’s determinations. (See ante, Claims I, II, and III.) The court also refused to consider evidencethat the guilt-phase jury did not deliberate on or find whether appellant had intendedto kill Genny. (See ante, Claim VI.) Further, the court erroneously admitted Ivan Jr.’s preliminary hearing testimony. (See ante, Claim IX.) In addition, the evidence supporting the conviction and special circumstance wasinsufficient, and the trial court erred in denying the motion for judgment of acquittal. (See ante, Claim XIII.) If this Court deemsthe evidence sufficient, the evidence just barely metthe constitutional threshold for sufficiency. Hadthe trial court _ accurately evaluated the circumstances-of-the-offense factor, the death sentence would have been against the weight ofthe evidence. In addition, the cumulative impact ofthese errors should also be evaluated in conjunction with the jury’s failure to find or deliberate on the intent-to-kill element of the torture-murder special circumstance. (See ante, -334- Claim VI.) Because it cannot be shown beyond a reasonable doubtthat the errors that infected the guilt phase and penalty retrial had noeffect, either individually or collectively, on the conviction, special-circumstance finding, and death verdict, reversal is required.” (See Chapman v. California, supra, 386 U.S.at p. 24; Satterwhite v. Texas (1988) 486 U.S. 249, 258- 259.) °5 Dueto the discretionary nature ofthe capital-sentencing determination, respondent has a high burden of showingthat a penalty- phaseerror is harmless. (See ante, at pp. 94-96.) Moreover, the overwhelming-evidencetest is not appropriate for penalty-phase error. (See ante, at pp. 96-98.) In any event, the evidence supporting the conviction and special-circumstance finding was not overwhelming,so the verdicts cannot be upheld on that basis. (See ante, at pp. 85-89.) -335- XXxI CALIFORNIA’S USE OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMS This Court numeroustimes has rejected the claim that the use of the death penalty atall, or, alternatively, that the regularuse of the death penalty violates internationallaw, the Eighth and Fourteenth Amendments to the federal constitution, or “evolving standards of decency”(Tropv. 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 overwhelmingrejection of the death penalty as a regular form of punishmentand the United States Supreme Court’s recent decisionciting international law to support its decision prohibiting the imposition ofcapital punishmentagainst defendants who committed their crimes as juveniles (Roper v. Simmons(2005) 543 U.S. 551, 554), appellant urges this Court to reconsiderits previous decisions. (See People v. Schmeck, supra, 37 Cal.4th at p. 304.) -336- CONCLUSION For the foregoing reasons, the conviction, special-circumstance finding, and death judgment must be reversed. DATED: January 22, 2007 Respectfully submitted, MICHAEL J. HERSEK State Public Defender Q CRAIG BUCKSER Deputy State Public Defender Attorneys for Appellant -337- CERTIFICATE OF COUNSEL (Cal. Rules of Court, rule 8.630, subd. (b)(1)) I, Craig Buckser, am the Deputy State Public Defender assigned to represent appellant van Joe Gonzales in this automatic appeal. I conducted a word countofthis brief using our office’s computer software. On the basis of that computer-generated word count, I certify that this brief is 90,617 wordsin length. CRAICBUNUCKSER Attorney for Appellant DECLARATIONOF SERVICE Re: People v. Ivan Joe Gonzales CSC No. 8067353 1, Jeffrey McPherson, declare that I am over 18 years of age, and not a party to the within cause; that my business address is 221 Main Street, 10th Floor, San Francisco, California 94105; that on January 22, 2007 I served a true copy of the attached: APPELLANT’S OPENING BRIEF on each ofthe following, by placing same in an envelope addressed respectively as follows: Office of the Attorney General San Diego County District Attorney Attn: Annie Fraser, D.A.G. Attn: Genaro C. Ramirez, D.D.A. P.O. Box 85266 330 West Broadway, Ste. 1220 San Diego, CA 92186-5266 San Diego, CA 92112 Liesbeth van den Bosch Robert Isaacson Office of the Alternate Public Defender P.O. Box 508 765 Third Avenue #210 Solana Beach, CA 92075 Chula Vista, CA 91910 Jose Varela Vicky Hennessy Schiff Marin County Public Defender Office . Death Penalty Appeals Clerk 3501 Civic Center Drive, #139 San Diego Superior Court San Rafael, CA 94903 220 W. Broadway, Room 3005 San Diego, CA 92101 Hon. Michael D. Wellington San Diego Superior Court Ivan Joe Gonzales 220 W. Broadway, Dept. 55 (Appellant) San Diego, CA 92101 Each said envelope was then, on January 22, 2007, sealed and depositedin the United States mail at San Francisco, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoing is true and correct. Executed on January 22, 2007, at San Francisco, California. DECLARANT
