PEOPLE v. GONZALES (IVAN)Appellant's Reply BriefCal.November 19, 2009 PEOPLE OF THE STATE OF CALIFORNIA Phintlll and Respondent, IVAN JOEGONZALES Defendent and Appellant. APPELLANT'S REPLY BRIEF Case Pia. SOG7353 San Diego County superior Caurt Ne, mETSL ES2} Appeal from the Judgment of the Superior Court of the State of California for the County of San Diegs The Honorable Judge Michael D. Wellington MICHAEL #. HERSER State Public Prefender CRALG BICRSER Deputy State Public Defender (lal, State Bur ha. TU46ES 801K Street, Sele 1106 Sacrumonte, (A GS14.3578 Velephone (916) 322-2678 Aiterneys for Aprnellant TABLE OF CONTENTS PAGE APPELLANT’S REPLY BRIEF ............ ccc cece cee eee eees 1 I. THE EXCLUSION OF APPELLANT’S PROFFERED EVIDENCE OF THE UNUSUAL DISCIPLINARY TECHNIQUES USED IN VERONICA GONZALES’S FAMILY OF ORIGIN WAS GRAVELY ERRONEOUS AND VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS..................... 1 A. Evidence Codesection 1101 Did Not Bar the Proffered Evidence ..........cccccccecccccces 1 1. Appellant Did Not Seek To Introduce Character Evidence ................000. 1 2. Even If It Is Deemed Profile Evidence, the Trial Court Erred by Excluding the Proffered Evidence ................ 15 B. The Exclusion of the Proffered Evidence Violated Appellant’s Constitutional Rights ..... 17 1. The Exclusion of the Proffered Evidence Violated Appellant’s Constitutional Rights .................. 17 2. The Continued Exclusion of the Proffered Evidence at the Penalty Retrial Violated Appellant’s Sixth, Eighth, and Fourteenth Amendment Rights 2... ... 0 cee cece cece eee eens 25 Cc. The Exclusion of the Proffered Evidence Was Reversible Error ............cccceeccecs 26 Il. Il. IV. TABLE OF CONTENTS PAGE THE EXCLUSION OF EVIDENCE OF VERONICA GONZALES’S ANTIPATHY TOWARD MARY ROJAS VIOLATED THE EVIDENCE CODE AND APPELLANT’S CONSTITUTIONAL RIGHTS ..ccccccccccccccccccccecceeesseeteeeees 38 A. The Excluded Evidence Was Admissible ....... 38 B. The Exclusion of the Evidence Infringed Appellant’s Constitutional Rights ............. 42 C. The Exclusion of the Evidence Was Reversible Error .......cccscccccccecccecees 43 THE EXCLUSION OF VERONICA GONZALES’S CONTEMPORANEOUS INCULPATORY REMARKS WAS ERRONEOUS AND UNCONSTITUTIONAL... 2. ce eee eee e eee eee eeee 46 A. | The Excluded Evidence Was Admissible ....... 46 B. The Exclusion of the Evidence Violated Appellant’s Constitutional Rights ............. 54 C. The Death Sentence Must Be Vacated ......... 56 THE EXCLUSION OF APPELLANT’S CHILDREN FROM THE COURTROOM WAS ERRONEOUS AND A VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHTS ........ cece eee cece 59 A. The Court Erred by Excluding the Evidence ..... 0c ccc cee cece cece eee e sconces 59 B. The Court’s Ruling Infringed Appellant’s Constitutional Rights ............eeeseeeeeee 62 il VI. TABLE OF CONTENTS PAGE C. The Court Had Neither the Authority Nor Substantial Evidence To Support the Exclusion of Appellant’s Children from the Courtroom ......... cece eee eee 63 D. Excluding Appellant’s Children from the Courtroom Violated Appellant’s Constitutional Right to a Public Trial ......... 64 E. The Death Judgment Must Be Vacated ........ 69 THE EXCLUSION OF APPELLANT’S MITIGATING EVIDENCE VIOLATED THE EVIDENCE CODE AND APPELLANT’S CONSTITUTIONAL RIGHTS ............0.. eee 71 A. The Court Erred by Excluding the Evidence ....... 0... cece cece cece cece eens 71 B. The Evidentiary Rulings Violated Appellant’s Constitutional Rights ............. 73 C. The Errors Were Prejudicial................. 73 THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR A NEW TRIAL DUE TO THE JURY’S FAILURE TO DELIBERATEON AND FIND AN ESSENTIAL ELEMENT OF THE TORTURE-MURDER SPECIAL CIRCUMSTANCE .......... 0. cece eee 74 A. Respondent’s Interpretation of Juror Statements Is Deficient ..................006, 74 ili TABLE OF CONTENTS PAGE The Trial Court Erred in Denying Appellant’s New-Trial Motion Based on the Jury Not Deliberating on or Finding the Intent-to-Kill Element of the Special Circumstance .......... 77 | 1. The Juror Statements Are Admissible under Evidence Code Section 1150 .........cc ccc cece eer eves 78 a. The Findingof an Individual Element of a Verdict Is an Overt Act Subject to Corroboration ..........ecceeeee 79 b. The Absence of Discussion of a Material ElementIs an Overt Act Subject to Corroboration ........0eeeee eee 81 c. The Juror Statements Were Not Evidence of the Jury’s Subjective Reasoning Process ..........+--- 82 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 .............. 83 a. The Policies Undergirding Section 1150 Were Not Advanced by Excluding the Evidence ...........cce eens 83 iv Vil. TABLE OF CONTENTS PAGE b. Countervailing Policy Considerations Further Mandate the Admissibility of the Jurors’ Statements and Declarations ...........0...008. 86 The Exclusion of the 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 .................. 88 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 .......... cc cece cece eee es 92 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 ......... eee cece eens 95 A. The Trial Court’s Dismissal of the Prospective Juror Was Not Supported By Substantial Evidence ............... 95 The Death Judgment Must Be Vacated .. . 99 TABLE OF CONTENTS PAGE VIII. APPELLANT DID NOT VALIDLY IX. WAIVEHIS RIGHT TO BE PRESENT AT EITHER THE INTRODUCTORY PROCEEDINGS WITH THE JURY VENIRESAT THE FIRST TRIAL AND THE PENALTY RETRIAL OR THE HARDSHIP VOIR DIRE AT THE FIRST TRIAL 2.0... 2. ccc ccc cece cece cece ee eees 100 A. Appellant’s Purported Waivers of His Presence at the Proceedings in the Jury Lounge Were Invalid Because The Court Made Appellant Choose Between Two Constitutional Rights .......... 100 B. Appellant Did Not Waive His Presence at the Hardship Voir Dire That Took Place in the Courtroom ..........eeeeseeeee 105 C. Appellant’s Absences Were Prejudicial ....... 00. c cece cece eee e enn ceees 108 THE TRIAL COURT ERRED AND INFRINGED APPELLANT’S CONFRONTATION-CLAUSE RIGHTS BY ADMITTING VIDEOTAPED PRELIMINARY HEARING TESTIMONY OF IVAN GONZALES,JR. 0... eee cece eee eee 110 A. The Trial Court Erred By Admitting Ivan Jr.’s Preliminary Hearing Testimony into Evidence .........c cece cece cect erecees 110 1. Appellant Lacked a Meaningful Opportunity For Effective Cross- Examination Because He Lacked Crucial Information at the Preliminary Hearing .............+465 110 vi TABLE OF CONTENTS PAGE 2. The Court Erred in Using Its Purported Inherent Authority To Protect Children from Imminent Harm To Quash the Subpoenaof Ivan Jr. But Causing Ivan Jr. Harm by Admitting His Preliminary Hearing Testimony ....... 114 — 3. The Court Erred In Ruling That Ivan Jr. Was Competent To Testify at the Preliminary Hearing Because He Was Incapable OfDistinguishing Between the Truth And a Falsehood ............ 116 B. The Admission of Ivan Jr.’s Preliminary Hearing Testimony Violated Appellant’s Confrontation-Clause Rights ................ 118 C. The Seating Arrangement During Ivan Jr.’s Preliminary Hearing Testimony Also Violated Appellant’s Confrontation-Clause Rights ..... 119 D. The Municipal Court Improperly Truncated the Cross-Examination of Ivan Jr. ........... 121 E. The Admission of Ivan Jr.’s Preliminary Hearing Testimony Violated Additional Constitutional Rights ........... 0c see e eens 123 F, The Admission of Ivan Jr.’s Preliminary Hearing Testimony Prejudiced Appellant ..... 123 THE ADMISSION OF VERONICA GONZALES’S HEARSAY STATEMENTSTO HER BROTHER-IN- LAW WASERROR THAT INFRINGED APPELLANT’S CONFRONTATION RIGHTS..... 125 Vil XI. XII. TABLE OF CONTENTS PAGE The Trial Court Abused Its Discretion When It Found Veronica WasStill under the Stress of Excitement When She Called and Spoke with Her Brother-in-Law ............. 125 The Introduction of Veronica’s Statement to Negrette Violated the Confrontation Clause ... 127 The Error WasPrejudicial Because the Hearsay Evidence Admitted Wasthe Only Evidence Proffered To Show Appellant Ever WasPhysical with Veronica Throughout Their Marriage ...........cceeeeeeeeeeeee. 128 THE ADMISSION OF APPELLANT’S VIDEOTAPED INTERROGATION VIOLATEDHIS CONSTITUTIONAL RIGHTS BECAUSE HE NEVER VALIDLY WAIVED HIS MIRANDA RIGHTS TO COUNSEL...... ce cece c cece eee ene 129 THE TRIAL COURT ABUSEDITS DISCRETION WHENIT ADMITTED THE USE OF A CHILD-SIZED | MANNEQUIN AND GRUESOME PHOTOGRAPHS OF GENNYINTO EVIDENCE OVER DEFENSE OBJECTIONS 2.0... ccc cece eee eect e een re eees 133 A. The Photographs of Genny Were Improperly Admitted Because They Were Gruesome, Cumulative, and Prejudicial, Which Resulted in an Improper Appeal to the Jurors’ Emotions ..........0e sees ees 133 The Trial Court Abused Its Discretion by Permitting the Use of a 34-Inch Mannequin, Which Was an Improper Appealto the Jurors’ Emotions That Created a Substantial Danger of Undue Prejudice ......... 0.0 e cece ee eees 134 vili TABLE OF CONTENTS PAGE The Admission of the Photos and Mannequin Infringed Appellant’s . Constitutional Rights .............. 0. eee 135 The Conviction, Torture-Murder Special Circumstance, and Death Judgment Must Be Vacated Because the Improper Admission of the Photos and Mannequin Resulted in Reversible EFrOr oo... ccc cee cece cere eect tree eeeees 136 XII. THE PROSECUTION FAILED TO PRODUCE SUFFICIENT EVIDENCE TO SUPPORT THE MURDER CONVICTION AND THE SPECIAL- CIRCUMSTANCEFINDING ........ 0. ce cece eee 138 XIV. A. There WasInsufficient Evidence That Appellant Was the Perpetrator ............. 138 There WasInsufficient Evidence To Determine That Appellant Intended To Torture and Kill Genny ......... ccc cece cece eee eee 139 The Conviction, Special-Circumstance Finding, and the Death Sentence Must Be Reversed ......... cece cece ween cee ecece 140 THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT DURING THE GUILT PHASE. .......... 00. cece ee eee eens 141 A. The Prosecutor Committed Misconduct by Referring to Witnesses the Defense Failed To Call and Thereby Diminishing the Presumption of Innocence and Shifting the Burden of Proof ............ ccc cece ees 141 ix TABLE OF CONTENTS PAGE The Closing Argument WasProsecutorial Misconduct Because the Prosecutor’s Arguments Were Unsupported by the Evidence and Unduly Prejudicial ............ 142 The Misconduct Was Prejudicial and Violated Appellant’s Due-Process Rights ...... 143 The Misconduct was Not Harmless and Appellant’s Conviction and Special Circumstance Finding Should Be Reversed .... 143 XV. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT DURING THE PENALTY RETRIAL ....... cece ee eee ene 144 THE TRIAL COURT IMPROPERLY DENIED APPELLANT’S PRETRIAL MOTIONS AND THEREBY VIOLATED HIS CONSTITUTIONAL RIGHTS 2... . ccc cece ce cece ete cence eee eees 151 XVI. A. The Trial Court Improperly Denied Appellant’s Request for Sequestered Voir Dire 2.0... cc ccc cece cece cece n cece eee 151 The Trial Court Improperly Denied Appellant’s Request To Instruct the Jury on the Definition of Life Without Parole ...........eeeeeeeees 152 The Trial Court Should Have Granted Appellant’s Motion To Set Aside the Indictment ......... ccc cc ecw ccc c eee eene 153 Motions for Procedural Protections .......... 153 Motion To Declare Penal Code Section 190.3 Unconstitutional ...... 2... ccc ee ween 154 Motions To Strike the Special Circumstance Due to Constitutional Defects ............64. 154 TABLE OF CONTENTS PAGE G. Motion for a South Bay Jury Venire ......... 156 H. Motion To Quash the Jury Venire ........... 157 I. Motions Challenging Discriminatory Prosecution ...... cc cece eee cere ee ee eens 157 J. Appellant Is Entitled to a New Trial.......... 159 XVH. THE TRIAL COURT COMMITTED SEVERAL PREJUDICIAL INSTRUCTIONAL ERRORS AT THE GUILT PHASE .......... cece eee eens 160 A. The Court Erred WhenIt Refused to Instruct the Jury that Failing To Stop Somebody From Committing Murder Is Not a Crime ... 20... 0... ccc ccc weet cents 160 B. The Court Erred When It Refused to Instruct - the Jury with Respect to Veronica Gonzales’s Consciousness of Guilt ...............0ceeee 161 C. The Court Erred By Giving CALJIC No. 2.04 wo. cece cece ee eee eee 163 D. The Court Erred In Giving CALJIC No. 8.81.18 Becausethe Instruction Required No Nexus Between the Alleged Torture or Intent To Torture and the Homicide .................. 164 E. A Series of Guilt-Phase Instructions Undermined the Requirement of Proof Beyond a Reasonable Doubt in Violation of Appellant’s Rights to Due Process, a Trial by Jury, and Reliable Verdicts .............. 165 F. Appellant Is Entitled to a New Trial.......... 169 Xi TABLE OF CONTENTS PAGE XVIII. THE TRIAL COURT COMMITTED SEVERAL A. PREJUDICIAL INSTRUCTIONAL ERRORS AT THE PENALTY PHASE .........0-e eee eees 170 The Court Erred When It Refused To Instruct the Jury Which Capital-Sentencing Factors Could Be Either Aggravating or Mitigating and Which Factors Could Only Be Mitigating .........-.. see ee ee eeees 170 The Court Erred When It Refused Appellant’s Modified Instructions Pertaining to the Catch-All Mitigating Factor ..........+..06-“174 The Court Erred WhenIt Refused To Instruct the Jury That It Should Not Limit Its Consideration of Mitigating Evidence to the Delineated Factors ........c0 cece eceee 175 The Court Erred When It Refused To Instruct the Jury That It May Return a Life Sentence for Any Reason ........ cee cece cence ee cece 176 The Court Erred When It Instructed the Jury That It Need Not Be Unanimousin Finding Aggravating Factors ..............-. 176 The Court Erred WhenIt Refused To Give a Lingering-Doubt Instruction at the Penalty Retrial ....... 0... cece eee cere eeens 177 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 ......... 178 xii TABLE OF CONTENTS PAGE H. The Court Erred When It Gave CALJIC Nos. 8.85 and 8.88 Despite Their Fundamental FIAWS 20. cee cc ccc ee eee cee eee eeees 179 I. Appellant Is Entitled to a New Trial.......... 179 XIX. THE TRIAL COURT IMPROPERLY DENIED APPELLANT’S MOTION TO MODIFY THE DEATH SENTENCE WHEN IT DENIED THE DILLONMOTION TO MODIFY, THEREBY VIOLATING HIS CONSTITUTIONAL RIGHTS AND RESULTING IN REVERSIBLE ERROR.......... 181 XX. CUMULATIVE ERROR DEPRIVED APPELLANT OF A FAIR TRIAL AND A RELIABLE PENALTY RETRIAL................ 182 XXI. CALIFORNIA’S USE OF THE DEATH PENALTY VIOLATES INTERNATIONAL LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTS...........ceccceccccecceeceeas 183 CONCLUSION ......cccccecccccceccccececsceveeveees 184 CERTIFICATE OF COUNSEL .......... 0. cc eee ee enone 186 XH TABLE OF AUTHORITIES CASES PAGE/S Apprendi v. New Jersey (2000) 530 U.S. 4660.eeeee eens 90 Barnes v. State (Ga. 1998) 496 S.E.2d 674 0... 6.eeeee nes 69,70 ~ Barnhart v. Sigmon CoalCo. (2002) 534 U.S.43 2...ccceeees 166 Boggs v. Collins (7th Cir. 2000) 266 F.3d 72 2... cece cece eee eens 112 Bundy v. Sierra Lumber Co. (1906) 149 Cal. 772 2.ceeee eee nes 104 Chambersv. Mississippi (1973) 410 U.S. 2840.eee eee eee net teens 88 Chapmanv. California (1967) 386 U.S. 15 066eeeeee eens passim Commonwealth v. Trowbridge (Mass. 1995) 647 N.E.2d 413 2...ceeeee 126 Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168 2.0.6... ce eeeeee eens 151 Crane v. Kentucky (1986) 476 U.S. 683000eens23 Crawford v. Washington (2004) 541 U.S. 36.0.6cceeetenets 127 Davis v. Washington (2006) 547 U.S. 813...eeeees 127 Drust v. Drust (App.2 Dist. 1980) 113 Cal.App.3d li... ccc eee eee 79, 84 XiV TABLE OF AUTHORITIES CASES PAGE/S Ellis v. United States (Ist Cir. 2002) 313 F.3d 636 0.0... . cece cece ee eens 119 Ferreira v. Quik Stop Markets, Inc. (1983) 141 Cal.App.3d 1023) 2...ceeee 80 - Frazier v. Huffman (6th Cir. 2003) 343 F.3d 780 .... 0... eeee eee eee 145 Gardner v. Florida (1977) 430 U.S. 349oeteen t eee e nes 136 Godfrey v. Georgia (1980), 446 U.S. 420. 0.ceceence ene eae 172 Green v. Georgia (1979), 442 U.S.95 00.eeee ene e ene ens 88 Hartsfield v. Commonwealth (Ky. 2009) 277 S.W.3d 239 2... ccc cece eee eee 127 Hicks v. Oklahoma (1980) 447 ULS. 34320cenceeens 103 Hitchcock v. Dugger (1987) 481 U.S. 393 2... eeeLee ence eee nee e eens 174 Holmes v. South Carolina (2006) 547 US. 318 2...ccc cece ete ees 18, 23 Hooper v. Mullin (10th Cir. 2002) 314 F.3d 1162 00...eeeeee 145 Hyman vy. Nationwide Mut. Fire Ins. Co. (11th Cir. 2002) 304 F.3d 1179 00...ceeee 166 XV TABLE OF AUTHORITIES CASES PAGE/S In re Charlisse C. (2008) 45 Cal.4th 145...eeeeens 15 In re Horton (1991) 54 Cal.3d 82 2... ccceee eee tee eens 107 © In re Jasmon O. (1994) 8 Cal.4th 398. 2...ceceeee ete 64 In re Oliver (1948) 333 U.S. 2572.eens64, 67 In re Sakarias (2005) 35 Cal.4th 140 2.0... cece eee eee eee eee 33, 44, 56 In re Winship (1970) 397 U.S. 358. 66eeetenes 92, 167 Johnson v. Mississippi (1988) 486 U.S. 578ccceeeeee eens 88 Kelly v. California (2008) 129 S.Ct. 564 2... ieee ee nee eee eens 145 Kollert v. Cundiff (1958) 50 Cal.2d 768 0.0...eeeeee nes 83 Lankford v. Idaho . (1991) S00 US. L110eeeeee eee es 87, 89 Lockett v. Ohio (1978) 438 U.S. 586...eeeeens 58, 70 McConnaughey v. United States (D.C. 2002) 804 A.2d 334 2.0... cece eee eee een eens 68 XVi TABLE OF AUTHORITIES CASES PAGE/S McDonald v. Pless (1915) 238 U.S. 264 2...ceeeen ene nen ens 88 Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040 2...0.eeeee 167 Maryland v. Craig (1990) 497 U.S. 836 0...ceee teen e eee e nee 120 North Carolina v. Butler (1989) 441 U.S. 369 0.ceeee ence ene nens 130 Parker v. Gladden (1966) 385 U.S. 363 0...ceeee e tenet eens 33 Payne v. Tennessee (1991) 501 US. 808 6...ceeete n ees 135 Pennsylvania v. Ritchie (1987) 480 U.S. 39 00.cetenet e teens 118, 119 People v. Abilez (2007) 41 Cal.4th 472 22ceceeae 14, 21 People v. Alcala (1984) 36 Cal.4th 604 2...cceee ee ees 19 People v. Arias (1996) 13 Cal.4th 92 2...cececece ees 52 People v. Ashmus (1991) 54 Cal.3d 932 0...cceeeeee nae 99 People vy. Ault (2004) 33 Cal.4th 1250 2...eeeceee77 XVvii TABLE OF AUTHORITIES CASES PAGE/S People v. Avila (2009) 46 Cal.4th 680 2.0...eeeeens 78 People v. Balcom . (1994) 7 Cal.4th 414oeeeeene 8 People v. Bemore (2000) 22 Cal.4th 809 2.0... cece eeeeeeeens 149 People v. Boyd (1985) 38 Cal.3d 762 2.0... eeeeee teens 170 People v. Brown (1988) 46 Cal.3d 432 0... eee ee ce eens 35, 57, 73, 137 People v. Bryant (Mich. 2009) 768 N.W. 65 0.6... cece cee eee eee eee nees 128 People v. Burnett (1980) L11 Cal.App.3d. 661 2.0.6... cece e eee eee eee eee ees 102 People v. Burney (2009) 47 Cal.3d 203 0.0... cece cence eee eee eens 157 People v. Cage (2007) 40 Cal.4th 965 2.0... cece cee eee eee eee .. 127 People v. Campbell (2001) 25 Cal.App.4th 402 2.0... . 00. eee eee ee eens 138 People v. Cardenas (1982) 31 Cal.3d 897 occen te eens 33 People v. Carter (2005) 36 Cal.4th 1114 2... ceeeeeeee eee ees 77 XViil TABLE OF AUTHORITIES CASES PAGE/S People v. Chatman (2006) 38 Cal.4th 344 2...cccence eens 139 People v. Crittenden ; (1994) 9 Cal.4th 83 oo.eeeteenes 167, 168 People v. Cudjo (1993) 6 Cal.4th 585 2.ceeeens 22, 23 People v. Daniels (1991) 52 Cal.3d 815 20... ceeeeteeters 12 People v. Danks (2004) 32 Cal.4th 269 2...eeceeteen ene eee 82 People v. Davenport (1985) 41 Cal.3d 247 2...eeeeee enna 34 People v. Davis (2009) 46 Cal.4th 539 2...ceceeens 7 People v. Dickey (2005) 35 Cal.4th 884 2.0...cece ee eens 101 People v. Durham (1969) 70 Cal.2d 171 2...ceeeee eens 28 People v. Dykes (2009) 46 Cal.4th 731 00...eecette eens +2. 59 People v. Evers (1992) 10 Cal.App.4th 588 2.0...ceceeee 8 People v. Ewoldt (1994) 7 Cal.4th 380 2.0...eeeee tenes 6, 7, 11 XIX TABLE OF AUTHORITIES CASES PAGE/S People v. Farmer (1989) 47 Cal.3d 888 2.0...eeeeens 52, 126 People v. Fosselman (1983) 33 Cal.3d 572 0...ecee eee eee es 93 People v. Geier (2007) 41 Cal.4th 555.0.eee ee ee eee eens 53 People v. Ghent (1987) 43 Cal.3d 739 0... ccc cece eeecee eeseee 170 People v. Gordon (1990) 50 Cal.3d 1223 2... ceceeee ee eee nee 53 People v. Graham (1969) 71 Cal.2d 303 20... cece eeeee ee tee teens 106 People v. Gray (2005) 37 Cal.4th 168 2.6... ceceeee ee eee nes 143 People v. Griffin (2004) 33 Cal.4th 536 200... ccc cece ee ee eee ee eens 9 People v. Hall (1986) 41 Cal.3d 826 ..... cece eee eee ee eee n ease e eens ennees 41 People v. Hamilton (2009) 45 Cal.4th 863 0.0...eeeeee teens 38 People v. Hartman (1894) 103 Cal. 242 0.0... ccceee ee ee eee es 63 People v. Heard (2003) 31 Cal.4th 946 0.0... ceeeee ee eee teenies 96 XX TABLE OF AUTHORITIES CASES PAGE/S People v. Hill (1998) 17 Cal.4th 800 2.0...eeec eee 61, 146, 147 People v. Holloway (2004) 33 Cal4th 96 2...eteeens 67 People v. Hovarter (2008) 44 Cal.4th 983 2... cece eee eee 7, 11,32, 123 People v. Hovey (1980) 28 Cal.3d 1...ecccc cette teens 15] People v. Hutchinson (1969) 71 Cal.2d 342 2...ceeeens 83, 84 People v. Jackson (1963) 59 Cal.2d 375 .....ceeee cece eee e eee eee 148 People v. Jenkins (2004) 122 Cal.App.4th 1160 22... 0.eceee eee 129 People v. Jennings (1991) 53 Cal.3d 334 0... cee ee eee eee ees 166, 167 People v. Johnson (1989) 47 Cal.3d 1194 2...ceccc ence ees 157 People v. Jurado (2006) 38 Cal.4th 72 2...eeeee enn ees 135 People v. Kaurish (1990) 52 Cal.3d 648 2.0... cee ee cece eet eens 96 People v. Lewis (2006) 39 Cal.4th 970 0... ceece cece eee eens 139 XX1 TABLE OF AUTHORITIES CASES PAGE/S People v. Lindberg (2008) 45 Cal.4th boo. cccceeeeeenneeeees 7 People v. Lucas (1995) 12 Cal.4th 415 0...40 People v. Mackey (1985) 176 Cal.App.3d 177 2.0... e eee eee een eens 114 People v. Martinez (2009) 47 Cal.4th 399 0... ccceee eee ee eee enn eees 99 People v. Masterson (1994) 8 Cal.4th 965 2.06.107 People v. Mayorga (1985) 171 Cal.App.3d 929 20... cece eee ee eee ee eee eee ees 93 People v. McClellan (1969) 71 Cal.2d 793 00...eeeeens 60 People v. McNeal (2009) 46 Cal.4th 1183 2...eeeeens 38 People v. McPeters (1992) 2 Cal4th 1148 20...eee eee ee eee ee 157, 158 People v. Montiel (1993) 5 Cal.4th 877 occeeenen eens 170 People v. Moon (2005) 37 Cal.4thboo.98 People v. Nesler (1997) 16 Cal.4th 561 2...ceeteen eee eee 77 XXil TABLE OF AUTHORITIES CASES PAGE/S People v. Ochoa (1998) 19 Cal.4th 353) 0.ees59, 61, 71 People v. Prieto (2003) 30 Cal.4th 226 0...oecceee 176 People v. Partida (2005) 37 Cal.4th 428 2...ceee eee en nes 122, 143 People v. Ramirez (2006) 39 Cal.4th 398 2...eccece ee eens 170 People v. Ramos (2004) 34 Cal.4th 494 2...eecee eens 81 People v. Romero (1982) 301 Cal.3d 685 2.0... eecece ete eeees 86 People v. Richardson (1911) 161 Cal. 552 2...ceceenn aes 60 Peoplev. Riel (2000) 22 Cal.4th 1153 2...ceeee eens 106 People v. Rogers (2006) 39 Cal.4th 826 00... ieee ec cece ene nes 105 People v. Schmeck (2005) 37 Cal.4th 240 2.0... ceeee eens 146, 147, 183 People v. Sharp (1994) 29 Cal.App.4th 1772 2...ceeeee nes 120 People v. Shirley (1982) 31 Cal.3d 18 20... cee cette teens 116, 117 XXII TABLE OF AUTHORITIES CASES PAGE/S People v. Slaughter (2002) 27 Cal. 4th 1187. 2... cece ee eee eee eee es 139 People v. Smith (2005) 35 Cal.4th 334 20... eee ee eee eee 15, 16, 170, 171 People v. Smith (2007) 40 Cal. 4th 483 20...eee tenet tenes 129 People v. Soper (2009) 45 Cal.4th 759 oo... ceceeeetenet eens 7 People v. Stanphill (2009) 170 Cal.App.4th 61 26...eecteee ees 126 People v. Sully (1991) 53 Cal.3d 1195 2... cee eee eee ee ete eens 52 People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737 0.0... cece cee cee eee ener eens 78 People v. Tapia (1994) 25 CalApp.4th 984 2.0...eee eee 106, 107 People v. Taylor (1990) 52 Cal.3d 719 20... cee eee ceeteens 176 People v. Thornton (2007) 41 Cal.4th 391.0... cece eee eee eee nee 122 People v. Walkey (1986) 177 Cal.App.3d 268 2.0.66. eee ee eee teen eens 13 XXIV TABLE OF AUTHORITIES CASES PAGE/S People v. Wheeler (1978) 22 Cal.3d 258 2...eee157 People v. Whisenhunt (2008) 44 Cal.4th 174 2...eect eee eens 7 People v. Whitt (1990) 51 Cal.3d 620 2.0...eeeee teen ee eaes 170 People v. Williams (1988) 45 Cal.3d 1268 2.0...ceceeee eens 77 People v. Williams (2001) Cal.4th 441oceeette een n ees 76 People v. Wisely (1990) 224 Cal.App.3d 939 2...ccceee eens 77 People v. Woodard (1979) 23 Cal.3d 329 0...ceeeee eee 33 People v. Woods (2006) 146 Cal.App.4th 106 2.0... 0. cece cece eee cee 149 People v. Woodward (1992) 4 Cal.4th 376 2...eece cee eee nes 65, 67 Philadelphia Eagles Football Club, Inc. v. City ofPhiladelphia (Pa. 2003) 823 A.2d 108 02...eeeeee ee eens 166 Ring v. Arizona (2002) 536 USS. 584 oo.cetteene 90, 93 Skipper v. South Carolina (1986) 476 US.Lceecee teens passim XXV TABLE OF AUTHORITIES CASES PAGE/S Sobin v. United States (D.C. 1992) 606 A.2d 1029 1... cece ccc eee ee eee eee es 67 State v. Mechling (W.V. 2006) 633 S.E.2d 311 0.0... e cece eee eee eee ees 127 State v. Miller (N.D. 2001) 631 N.W.2d 587 2... ccc eee ce eee eens 120 State v. Wright (Fla.App. 1985) 473 So.2d 268 2.0... cece cece ee eee eee 134 Sullivan v. Louisiana (1993) 508 U.S. 275 2.eenee eee nes 165 Summer v. Shuman (1987) 483 US. 66.0...ceceeens 76 Tanner v. United States (1987) 483 U.S. 107ooeeeenn es 89 Tuilaepa v. California (1994) 512 U.S. 96720.ees 171, 172, 173 United States v. Aboumoussallem (2d Cir. 1984) 726 F.2d 906 0.6... cece ee eee eee eee 20 United States v, Bagley (9th Cir. 1985) 772 F.2d 482 2.6... eeeeee ees 44, 56 United States v. Booker (2005) 543 U.S. 220 06.90 United States v. Cohen (11th Cir.1989) 888 F.2d 770 60... eeeceeees 20 XXVi TABLE OF AUTHORITIES CASES PAGE/S United States v. DeNoyer (8th Cir. 1987) 811 F.2d 436 0.0...eeeeee eee 24 United States v. Gaudin (1995) 515 U.S. 5062.eens90 United States v. McClure (5th Cir. 1977) 546 F.2d 670 2...cee eee eee 20 United States v. Owens (1988) 484 U.S. 5542.ccceee ee 118 United States v. Stevens (3d Cir. 1991) 935 F.2d 1380... 0...eceee nes 20 United States v. Villar (Ist. Cir. 2009) F.3d; 2009 WL 3738787................ 90, 91 Wainwright v. Witt (1985) 469 US. 4122.cceee eens 99 Waller v. Georgia (1984) 467 U.S. 392.eeeeens 64, 65, 68, 69 Wiggins v. Smith (2003) 539 U.S. 5102.cetteeens 72 Witherspoonv. Illinois (1968) 391 U.S. 510...cccee eee 98, 152 Woodson vy. North Carolina (1976) 428 U.S. 280 0...ceceteens 136 Yung v. Walker (2nd Cir. 2003) 341 F.3d 104.0... . cece eee eee 65, 68 XXVIi TABLE OF AUTHORITIES CASES PAGE/S Zant v. Stephens (1983) 462 U.S. 862 0...nneee eee nee 88, 90, 93 STATUTES Constitutions U.S. Const., Amends 6 ccc ccc cece ee eee ee eee e een ee nent eee eee 90 a90 90 Cal. Const., art. I, 90 90 90 Og90 State Statutes Cal. Evid. Code, §§ 350 2.02... ccc cece eee nee eee eee 42 40, 41 MOD Loic ccc ce eee eee ee eens 43 70,40 MOS oo ccc cc cece eee eee nen nes 43 LLOL (a) (b)6cceee passim L150 coc cece eee eee ees passim 1240 oo cceeene eee 49, 125 L291 Lceee ee eee 110, 114, 118 Cal. Pen. Code, §§ 190.3 0.0... ccc eee eee ees 154, 173 O77 Lecce cee eee nee eee een eeee 100, 105 XXVill Jury Instructions CALJIC NO. 2.04 20ceenee tent e een nen ee en nees 163 No. 3.0] 00.ceetne e eben eens 160, 161 NO. 8.85 0...teen en een eee e eens passim No. 8.88 0000eeetenn n eee e nen eens 178, 179 No. 8.81.18 2.0.0ene e een eee ees 164, 165 _ TEXT AND OTHER AUTHORITIES Guidelinesfor the Appointment and Performance ofDefense Counselin Death Penalty Cases (2003) 31 Hofstra L. Rev. 913, 1061 ........... 72 Howarth, The Geronimo Bank Murders: A Gay Tragedy (2008) 17 Law & Sexuality 39, 66-70 ................04. eee eens 149 Kadish, The Drug Courier Profile: In Planes, Trains, and Automobiles; and Now in the Jury Box (1997) 46 Am. U. L. Rev 747, 782 2...ceeens 16 Sundby, The Capital Jury and Empathy: The Worthy And Unworthy Victims (2003) 88 Cornell L. Rev. 343, 346 0.0.0.0... 00000000008. 135 XX1X I. THE EXCLUSION OF APPELLANT’S PROFFERED EVIDENCE OF THE UNUSUAL DISCIPLINARY TECHNIQUESUSED IN VERONICA GONZALES’S FAMILY OF ORIGIN WAS GRAVELY ERRONEOUS AND VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS Thetrial court excluded the evidence that formed the crux of appellant’s defense. Appellant sought to present evidence of the bizarre methodsofdiscipline that were utilized in the home in which Veronica Gonzales wasraised. Those strange disciplinary techniques were remarkably similar to the abusive methods used against Genny. Contrary to respondent’sassertion, it was the similarity in disciplinary techniques—not the generic fact that abuse took place in Veronica’s family of origin—that vested the proffered evidence with its probative value. Respondent’s assertion that the proffered evidence’s only purpose wasto present evidence of Veronica’s character is incorrect. The court excluded, on Evidence Code section 1101 grounds, evidence with a non-character purpose that was highly probative toward demonstrating Veronica’s third-party culpability. That ruling was erroneous and violated appellant’s constitutional rights to present a defense, present mitigating evidence, rebut aggravating evidence, and havea fair and reliable capital-sentencing determination. A. Evidence Codesection 1101 Did Not Bar the Proffered Evidence 1. Appellant Did Not Seek To Introduce Character Evidence Thetrial court erred in concluding that the evidence of abusive techniques in Veronica’s family of origin only constituted character evidence and thereby excluding the evidence. The evidence was not character evidence—or, at the very least, had a non-character purpose—and was admissible evidence of third-party culpability. In the proceedingsat the trial court, defense counselarticulated the purposeof, and the logical chain of relevancy undergirding, the proffered evidence. Asdetailed in its offer of proof, the defense sought to produce evidenceofthe types of abusive techniques used in Veronica’s childhood home. That evidence included Utilia Ortiz (Tillie) burning, beating, and confining her daughters, and pulling their hair. Tillie’s acts against her daughters had unmistakable parallels to the abuse perpetrated against Genny. The burn in the bathtub was Genny’sfatal injury, and the abusive behavior began around the time Gennysustained a burn to her head and neck. Genny had bruises that appeared to have comefrom beatings. Genny’s arms were tied up, and she had beenbizarrely confined to small, strange spaces, including the bedroom closet and the wooden box. Also, her hair had beenpulled. The defense soughtto elicit Dr. Patricia Perez- Arce’s testimony explaining social-learning theory, which postulates that people often modeltheir behaviorafter their parents’ behavior. According to social-learning theory, someonecould be expectedtoutilize the disciplinary techniques learned from one’s parents. Appellant soughtto introduce evidence of excessive disciplinary techniques in Veronica’s family of origin to showthat Veronica experienced or observed suchacts, learned how to use those techniques, modeled her behavior after her mother’s, and applied those techniques against Genny. The weird ways in which Genny was victimized raised the question who conjuredup the strange methods used against her. Evidence elicited by both the prosecution and defense suggest that things went awry while efforts were made to prevent Genny from pickingat the scabsthat 2 resulted from the burn to her head and shoulders.' Accordingly, determining which person devised the idea of tying up Genny’s arms so she could not pick at her scabs wasa critical step toward identifying the sole or primary perpetrator and the mastermind ofthe offense against Genny. For this reason, whether a potential perpetrator experienced or observed children getting tied up and burned bytheir adult caregivers was highly probative toward determining who cameup with the idea oftying Genny’s armstogether behind her back so she could notpick at her scabs and of putting her in a small box in the bedroom closet or a confined space behind the bedroom door. Significantly, none of that probative value is derived from an impermissible character inference. Rather, the evidence of what excessive disciplinary techniques a potential perpetrator observed and experienced is probative because it shows which person learned the techniques that were similar to those used against the victim, was more likely to have devised the strange, similar disciplinary techniquesused in this case, and, thus, more likely to have been the mastermind andthesole or primary perpetrator ofthe offense. | The strangeness and similarity of the disciplinary techniques used in Veronica’s family of origin and in appellant and Veronica’s apartment—not the mere fact that abuse took place—provided the proffered evidence with its probity. Two hypothetical fact patternsfurtherillustrate this point. In ' Although a prosecution expert witness opined that this burn was intentional, there was also evidence that she sustained the burn accidentally. (8 CT 1770.) There was undisputed evidence that appellant and Veronica treated the burn with ointment and homemade bandagesandthat they plannedto take her to the doctorafter receiving Genny’s Medi-Cal card from Tillie and, thus, becoming able to pay for a doctor’s appointment. (56 RT 7068-7069, 7072; 95 RT 12074-12076; 98 RT 12597; 8 CT 177.) 3 both hypotheticals, a child victim was abused and killed in the exact manner in which Gennyhad beenvictimized. Also, the victim’s two adult caregivers are the two potential perpetrators in both hypotheticals. In Hypothetical 1, Defendant A wasraised in a homein whichthe children were not abused or subjected to excessive discipline. Defendant B andhis siblings were abused bytheir father, who would shoot his misbehaving children with a bb gun. In this hypothetical, Defendant A couldnotelicit evidenceof the physical abuse in Defendant B’s family of origin. The disciplinary techniques used in Defendant B’s family of origin and those employed against the defendant were dissimilar. Accordingly, there was no basis for inferring that DefendantB utilized the disciplinary techniques he had learnedin his family of origin. The only probative valuein the abusein Defendant B’s family of origin would be derived from the mere fact that abuse took place in Defendant B’s childhood home, which, according to the child-abuserprofile, makes him more likely to be a child abuser than someone who wasraised in an abuse-free home. In Hypothetical2, Defendant Y had the same background as Veronica Gonzales, and Defendant Z had the same background as Defendant B. In this hypothetical, DefendantZ could elicit evidence ofthe disciplinary techniques used in Defendant Y’s and Defendant Z’s respective families of origin in order to showthat the abusive techniques perpetrated against the victim were much morelike those used in Defendant Y’s family of origin than Defendant Z’s andthat, therefore, it could be inferred that Defendant Y was applying the abusive techniques against the victim that he had learned at home. From that inference, the factfinder could conclude that Defendant Y was the sole perpetrator, ringleader, or mastermind ofthe crime. Those conclusions would be reached withoutthe factfinder making 4 an impermissible character inference. Indeed, a factfinder with knowledge of the child-abuser profile would conclude that Defendants Y and Z both likely have dispositions to abuse children. Thus, the dispositions of Defendant Y or Defendant Z play no role in the analysis of whether Defendant Y or Defendant Z wasthe primary perpetrator, ringleader, or mastermind. Respondent’s description of appellant’s argumentis reductionist and misleading. In its brief, respondent characterizes appellant’s argument as follows: [Appellant’s] proffered evidence was that, because Veronica had witnessed abuse in her home,it should be inferred that she, not [appellant] was the one whotortured and murdered Genny. In other words, that because of her childhood, Veronica was predisposed to abuse Genny. (RB 44.) That is a gross oversimplification of appellant’s argument; respondent omits several steps in the logical chain of relevancy. Respondentadds: The relevanceof the evidence wasthat based on her background, Veronica, and not [appellant] abused Genny. [Appellant] claims it was to show Veronica applied the disciplinary techniques she learned at home “and applied those techniques against Genny.” (AOB 52.) Regardless of how [appellant] phrasesit, the inference he is seeking is that Veronica abused Genny because she waspredisposed to do so, based on her background. (RB 45.) Respondent’s argumentin support ofthetrial court’s exclusion of the proffered evidence proceeds from the premisethat there is no distinction between the inferences appellant sought to make andthe inferences forbidden by Evidence Code section 1101. Respondent’s premise is wrong, and the erroneous premise undermines respondent’s argument. Althoughthe logical chain of relevancy for the excluded evidence contains several steps, respondent omits all of the intermediate steps in orderto attempt to claim plausibly that appellant seeks only to use the evidence to show that Veronica had a disposition to abuse children and base his third-party-culpability defense on that purported disposition. The logical chain of relevancy that defense counsel articulated was more than an alternate phrasing, as respondentposits: It was an entirely different logical chain that sought to prove something altogether distinct from disposition. Boiled downto its essence, respondent argues that appellant must be seeking to use the excluded evidence to prove disposition because events from Veronica’s background comprise it. (RB 43-51.) Respondentwrites: Thenature ofthe proffered evidence was character evidence, regardless of how [appellant] now attempts to characterizeit. The proffered evidence wasonly relevantif it tended to show that because of her background, Veronica had the disposition to commit the crime. (RB 43.) Respondentcategorically claims that Veronica growing upin an abusive homeis a trait of her character. (RB 44.) Respondentstates further: “[Appellant] cannot escape the purpose for which he soughtthe admission with semantics. It is improper character evidence.” (RB 50.) Evidenceof a person’s background, however,does not necessarily constitute character evidence. If the evidence is probative for a purpose other than proving a person’s disposition and showing that she engaged in conduct consistent with the disposition, the evidence is generally admissible. (Evid. Code, § 1101.) The possibility that a factfinder may make the forbidden inference does not render evidenceofpast acts or events inadmissible. (See Peoplev. Ewoldt (1994) 7 Cal.4th 380, 401-403.) In countless cases, the prosecution elicits evidence pertaining to a defendant’s background for purposesother than disposition. This Court routinely upholds the admission of other- crimes evidence that the prosecution introduced ostensibly for non- character purposes. (See People v. Davis (2009) 46 Cal.4th 539, 602-603 [intent and commonschemeorplan]; People v. Soper (2009) 45 Cal.4th 759, 778-779 [intent]; People v. Lindberg (2008) 45 Cal.4th 1, 22-26 [intent]; People v. Hovarter (2008) 44 Cal.4th 983, 1001-1005 [identity]; People v. Whisenhunt (2008) 44 Cal.4th 174, 203-205 [intent and absence of mistake].) The non-disposition inferences defendant sought to makein this case are similar to those alternate inferences undergirding the admission of the other-crimes evidence in this Court’s recent decisions involving Evidence Code section 1101. In People v. Davis, supra, 46 Cal.4th at pp. 602-603, this Court upheld the admission of evidence of the defendant’s prior assaults, some of which were of a sexual nature, to prove the defendant’s intent to commit a lewd act. In Davis, the prosecutor sought to use events | from the defendant’s backgroundto establish his guilt for capital murder. But, because proving intent did not require making inferences involving the defendant’s character, that did not render the prior-act evidence inadmissible. Likewise, contrary to respondent’s suggestion, the excluded evidence in this case is not inadmissible character evidence merely because the evidence bears on events from Veronica’s background. This Court in People v. Hovarter, supra, 44 Cal.4th at pp. 1001- 1005, upheld the admission of the defendant’s similar, but not remotely identical, acts in order to prove identity. Undoubtedly, the jury could have used the prior offense to conclude that the defendant was a homicidal sex 7 offender and therebyinfer that he perpetrated the charged offense. Forthat reason,thetrial court gave a limiting instruction in an effort to foreclose a finding of guilt through the forbidden inference. Thelogical chain of relevancy for the identity inference in Hovarter is analogous to the non-disposition inferences appellant sought to makein this case. To makethe identity inference to prove a defendant’s guilt, the prosecution showsthat the defendant committed the uncharged offense and that the charged and uncharged offense are so muchalikethat it can be inferred from the similarities that the defendant committed the charged offense. (See People v. Balcom (1994) 7 Cal.4th 414, 425.) When making this inference, the prosecution uses another event in the defendant’slife to demonstrate that he committed the charged offense. Yet, the defendant’s disposition plays norole in the logical chain of relevancy. For that reason, if the defendant argued, as respondentdoeshere, that “[t]he nature of the proffered evidence was character evidence, regardless of how [the prosecution] now attempts to characterizeit,” a court would rightly reject the argument. In People v. Evers (1992) 10 Cal.App.4th 588, 598-600, the Court of Appeal upheld the admission of the defendant’s twoprior acts of child abuseagainst his children to show the defendant’s knowledge that child abuse could cause serious injury or death and that the victim’s death was not accidental. Thetrial court admitted evidence of the prior act of burning the victim’s feet although he killed the victim by violently shaking him. The court also admitted evidence of the defendantsimilarly shaking the victim’s sister violently; the victim survived but was rendered a quadriplegic. Once again, the introduction of the evidenceofprior acts of abuse in Evers could have led a factfinder to infer guilt from the defendant’s disposition. Nevertheless, the trial court admitted the evidence, albeit with a limiting instruction. Asthese cases show,the subtle distinctions between logical chains permitted by Evidence Codesection 1101(b) and the forbidden inference are extraordinarily important. Unless another evidentiary provision bars the evidence, the existence of a viable alternate chain of relevancy renders the evidence admissible. In light of the importanceof the subtle distinctions, respondent’s repeated conclusory assertions that appellant only seeks to infer guilt from Veronica’s disposition—therhetorical equivalent of banging on the table—are inappropriate and unconvincing. The intermediate steps in the logical chain of relevancy for the excluded evidence mirrored the logical chain of relevancy of the slaughterhouse evidence in People v. Griffin (2004) 33 Cal.4th 536. In Griffin, the trial court admitted evidence of slaughtering techniques and evidence that the defendant had worked in a slaughterhouse to support the following set of inferences: The defendant worked in a slaughterhouse, watched animals get slaughtered, learned slaughtering techniques,utilized | that knowledgeagainst the victim, and, therefore, the defendant slaughtered the victim like a livestock animal. (/d. at pp. 581-582.) Concluding that the slaughterhouse evidence was probative toward demonstrating the defendant’s deathworthiness, this Court upheld the trial court’s admission of that evidence. (/d. at p. 583.) Respondent, however, contendsthat Griffin is inapposite. (RB 47- 48.) Althoughthe ultimate inference the prosecutor made in Griffin differs from the ultimate inference appellant sought to make from the proffered evidence, the intermediate inferential steps in the two cases are virtually identical. Contrary to respondent’s assertion, the non-disposition series of 9 inferences that appellant seeks to makeis indeedlegitimate. In Griffin, the prosecutor used the slaughterhouse evidence to show that the defendant slaughteredthe victim like an animal without making any inferences pertaining to whether the defendant wasa slaughterer. Likewise, in this case, appellant’s proffered third-party-culpability evidence did not make any inferences to or from any purported disposition to abuse children that Veronica may havehad. Accordingly, Griffin undermines respondent’s argument. Respondent’s principal assertion is that appellant soughtonly to infer Veronica’s guilt from her disposition—notthat the prejudice from a disposition inference would overwhelm the probative value of appellant’s alternative inferences. Thus, Griffin showsthat appellant’s non-disposition intermediate inferencesare legitimate and thus defeats respondent’s key contention. . Although appellant seeks ultimately to have the jury infer Veronica’s identity as the perpetrator, he should not have to demonstrate that Veronica committed a signature crime as a prerequisite for introducing the evidence. Because Veronica did not commita prior child-abuse offense, it would be impossible for appellant to makea signature-crime inference, which establishes identity through the identicalness ofthe prior crime and charged offense. The logical chain of relevancy for the proffered evidence differs from the logical chain used to demonstrate identity through a signature crime. Moreover, the purpose of the high threshold for admitting other- crimes evidence to prove identity—to ensure that the probative value of the signature-crime inference outweighsthe potential for prejudice stemming from the factfinder improperly making the propensity inference—does not exist in this case. As explained in the opening brief and conceded by 10 respondent, there was no dangerofthe jury making the forbidden propensity inference in this case because Veronica did not have a history of abusing children. In addition, the absence of evidence of the child-abuser profile limited the likelihood that the jury would improperly infer Veronica’s guilt from her disposition. Lastly, because Veronica’s trial was severed from appellant’s, there was no risk that she would be prejudicedif the jury madethe forbidden inference. For these reasons, appellant should not be requiredto fit the square peg of the proffered evidence into the round hole of signature-crime-evidence jurisprudence. Even if this Court concludes that appellant needs to meet the most stringent requirement in People v. Ewoldt, supra, 7 Cal.4th at p. 403, the trial Court nevertheless erred by excluding the evidence. As this Court recently illustrated in People v. Hovarter, supra, 189 Cal.4th at pp. 1003- 1004, California law does not require that a so-called “signature crime” have unique characteristics before admitting other-crimes evidence to prove identity. Rather, a significant similarity between the uncharged crime and the charged crime suffices. In Hovarter, none of the common elements in | the charged offense and the other crime was inimitable. Thetrial court admitted the evidence despite concluding “that manyofthe points of alleged similarity ‘are commonto the classes of crime charged.’” (Jd.atp. 1003.) This Court nevertheless upheld the admission of the other-crimes evidence because the charged offense and the other crime shared several similarities. (/d. at p. 1004.) The similarities between Tillie’s excessive disciplinary techniques and the techniques used against Genny were sufficiently similar to meet the Hovarter standard. In both instances, the perpetrator victimized vulnerable girls. The incidents occurred at home andtook place while the victims’ 11 cousins were presentinside. The perpetrators burned the victims, and the most severe burns were to the victims’ lower extremities. The victims never received medical attention for their injuries. The perpetrators tied up the victims. As a result of the binding, the victims were unable to protect themselves. In addition, the victims were bruised from the beatings that they sustained. Lastly, the perpetrators pulled the victims by their hair. The similarities between the disciplinary techniques used against Veronica and her sisters more than suffice to permit a factfinder—without making the forbidden inference—to conclude that the perpetrator ofthe offense against Genny implemented the techniques she learned from Tillie. Furthermore, the excluded evidence was admissible to show the perpetrator’s motive. Other-crimes evidence of motive may be used to establish identity without having to show a signature crime. (See People v. Daniels (1991) 52 Cal.3d815, 858.) The similarities in disciplinary techniques suggests that the abusive techniques shared a common motive: excessively disciplining children. It appears that Tillie’s motive for burning and binding her children wasto imposediscipline. Likewise, at the outset of the pattern of similar abuse against Genny, it can be inferred that there wasa similar motive of imposing discipline.2 Appellant and Veronica Although the prosecution presented expert testimonythat the burn to Genny’s head and neck wasintentionally inflicted, the jury could reasonably have rejected that expert opinion. Evenif the initial burn had been inflicted intentionally, the jury could have inferred that Veronicatold appellant that Genny had accidentally burned herself with the water on the stove and appellant believed her. Moreover, Ivan Jr.’s allegation made in his preliminary hearing testimony, which was admitted into evidence atthe guilt phase ofthefirst trial but not at the penalty retrial, that appellant and Veronica burned Genny’s head and neck in the bathtub was unreliable and (continued...) 12 wanted to get Genny medical care; however, Tillie did not give them Genny’s Medi-Calcard, and they could not afford to take her to a doctor withoutit. After the burn failed to heal, things went awry. Evidence ofa disciplinary motive was probative toward appellant’s defense in two ways. First, the pattern of abuse against Genny being exclusively or primarily bizarre efforts to discipline her rebuts the intent-to-kill and intent-to-torture elements of the special circumstance and reduces appellant’s deathworthiness. Second, because Veronica primarily cared for Genny,it could have been inferred that she was the person whosoughtto disturbingly discipline Genny for impeding the healing process. Despite the presence ofthese inferential chains that do not pertain to Veronica’s disposition, respondent, agreeing with the trial prosecutor and trial court, asserts that this case is controlled by and indistinguishable from People v. Walkey (1986) 177 Cal.App.3d 268.° Respondent basesits argumenton the incorrect premise that appellant seeks only to prove Veronica’s guilt through her disposition. (RB 45-47.) As explained above at length, appellant did not seek to make any inferences regarding | Veronica’s disposition. As such, this case is quite different from Walkey. Respondent contends, however,that the proffered testimony of Dr. Perez- Arce wasthe functional equivalent of profile evidence. That assertion incorrectly disregards the distinction between the mere existence of abuse *(...continued) uncorroborated. (See post, at pp. 29-30, 110-113, 116-118.) 3 Respondentstates that Walkey court found the evidence inadmissible because it was character evidence, not becauseit wasprofile evidence. (RB 46.) Thatis a distinction without a difference. Profile evidenceis a subset of character evidence. (See post, at pp. 15-16.) 13 and specific bizarre disciplinary techniques. Inferences involving the techniquessteer clear of disposition and are thus permissible under Evidence Code section 1101. Thus, contrary to respondent’s assertion, appellant did not seek to admit evidence of Tillie’s disciplinary techniques to show that Veronicafit a child-abuser profile or had the disposition to abuse children. People v. Abilez (2007) 41 Cal.4th 472, whichthis Court decided after appellantfiled his opening brief, further demonstrates that thetrial court erred by excluding the evidence. One defendantin Abilez sought to introduce the co-defendant’s juvenile adjudication for unlawful intercourse with a minor to show that the co-defendantperpetrated the burglary- robbery-sodomy-murder. Because the lone basis for the admissibility of the other-crimes evidence was to show the co-defendant’s propensity or disposition to commit sex offenses, this Court upheld the exclusion of the third-party-culpability evidence. (/d. at 498-502.) Althoughthe trial court excluded the evidence on remoteness grounds,this Court concluded that the strongest basis for excluding the evidence under Evidence Code section | 1101 wasthe lack ofsimilarity between the other crime and the charged offense. (Id. at p. 501.) By implication, other-acts evidence of a co- defendantor anallegedalternative perpetrator would be admissibleif there exists a sufficient similarity between the otheract and the charged offense. In this case, appellant does not claim that the proffered evidenceis probative based on the mere fact that Veronica and hersisters were abused. Rather, appellantasserts that the similarity in abusive techniques supports the non-disposition inferences that point to Veronica as the sole or primary perpetrator. 14 The failure to appreciate the distinction between inferring identity through disposition from the mere fact of abuse in Veronica’s family of origin and inferring identity through the similarity of excessive disciplinary techniques constituted the critical error made by the trial court. Thetrial court did not rule that abusive techniques were notsufficiently similar or that the potential prejudice from the forbidden inference would overwhelm the probative value of the non-disposition chain of relevancy. Instead, the trial court concluded that appellant did not seek to introduce the evidence for any bonafide non-disposition inference and accordingly excluded the proffered evidence under Evidence Code section 1101. This was an abuse of discretion per se. (See Jn re Charlisse C. (2008) 45 Cal.4th 145, 159 [“a disposition that rests on an error of law constitutes an abuse of discretion’’].) Althoughthetrial court alternatively ruled that the evidence should also be excluded under Evidence Codesection 352, that determination wastainted by the court considering only the probative value from character-evidence inferences andnotthe probity of inferring identity through similarity. Respondenturges this Court to make the samefacile and flawed analysis | that the trial court undertook. This Court should resist the urge to grasp onto false simplicity, carefully consider the logical chain of relevancy that appellant put forth when attempting to introduce the proffered evidence, and concludethatthe trial court erred by excluding the evidence under Evidence Code section 1101. 2. Even If It Is Deemed Profile Evidence,the Trial Court Erred by Excluding the Proffered Evidence In the event that this Court concludes that the excluded evidence constitutes profile evidence, People v. Smith (2005) 35 Cal.4th 334 would nonetheless require that the evidence be admitted. In Smith, this Court, 15 explaining that profile evidence is “inadmissible onlyifit is either irrelevant, lacks a foundation, or is more prejudicial than probative,” upheld the use of profile evidenceto prove that the defendant acted in conformity with the profile. (/d. at pp. 357-358.) Respondent, however, contendsthat Smith permits the admissibility of profile evidence, but not character evidence. Thatis a false distinction: Profile evidence is character evidence. (See Kadish, The Drug Courier Profile: In Planes, Trains, and Automobiles; and Now in the Jury Box (1997) 46 Am.U. L. Rev 747, 782.) Profile evidence seeks to show that a personfits a profile and thus has a certain disposition. Inferences are then madeto showthat the person acted consistently with that disposition—the category of inferences thata literal reading of Evidence Code 1101(a) appears to address. Accordingly, when this Court upheld the use ofprofile evidence in Smith, this Court permitted the prosecutor to make inferences from a defendant’s disposition that had been determined througha profile.’ Furthermore, this Court should not exclude the proffered evidence under Evidence Codesection 1101 because exclusion of the evidence 4 That the prosecution in Smith soughta different ultimate inference than the ultimate inference appellant seeks to make with the proffered evidence does not underminethe key point that the prosecution inferred the defendant’s motivation for the crime and the significance of his methods and the physical evidence from a sexually-sadistic-pedophileprofile. (People v. Smith, supra, 35 Cal.4th at p. 353.) This Court in Smith did state that profile evidenceis insufficiently probative whenused to infer guilt from a personfitting a profile. (/d. at p. 358.) In this case, however, the proffered evidence was moreprobative than a mere he-fits-a-profile case becauseofthe similarity of excessive disciplinary techniques usedbyTillie and those used against Genny. Thus, even if the proffered evidenceis deemedprofile evidence, the proffered evidence shows more than the mere. fact that Veronicafit a profile. 16 would not advancethe policies undergirding that evidentiary rule. Because Veronica wastried separately, she could not have been prejudiced by the admission of the evidence. In addition, the excluded evidence did not involve a crime that Veronica had committed. Also, appellant never sought to elicit evidence of a child-batterer profile. Significantly, appellant relied on much morethan the mere fact that abuse took place in Veronica’s family of origin to show that Veronica wasthe sole or primary perpetrator. For these reasons, the rationales for excluding evidence under Evidence Code section 1101(a) are not present in this case. (See post, at pp. 19-21.) B. The Exclusion of the Proffered Evidence Violated Appellant’s Constitutional Rights The excluded evidence was the keystone of appellant’s defense. The exclusion of the evidence violated appellant’s constitutional rights to offer testimony, present a complete defense, present relevant mitigating evidence, rebut aggravating evidence, and havea fair and reliable capital-sentencing determination. 1. The Exclusion of the Evidenceat the Guilt Phase Infringed Appellant’s Rights to a Defense As appellant recognizes,a trial court’s evidentiary rulings rarely implicate a defendant’s constitutional rights. (AOB 63-65.) Appellant and respondent thus agree that garden-variety evidentiary rulings do notgive rise to meritorious constitutional claims. This, however, is one of the rare cases in whicha trial court’s exclusion of defense evidence infringed the rights to a defense that are protected by the Sixth and Fourteenth Amendments to the United States Constitution andarticle I, sections 7 and 15 of the California Constitution. 17 The United States Supreme Court has repeatedly held that the exclusion of defense evidence under state-law evidentiary rules violates a defendant’s constitutional rights to present a defense ifit infringes a defendant’s weighty interest andis arbitrary or disproportionate to the purposes the evidentiary bar was designed to serve. (See Holmes v. South Carolina (2006) 547 U.S. 318, 324.) As explained in the openingbrief, exclusions of defense evidence infringe the constitutional rights to 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.® (AOB 64.) The proffered evidencein this case was both exculpatory andcritical to the defense. Evidencethat Tillie used excessive disciplinary techniques that paralleled the methods of abuse used against Genny stood atthe heart of appellant’s defense. Due to the absence ofreliable evidence regarding whodid what behind the closed doors of appellant and Veronica’s apartment, any evidence that pertained to the identity of the primary or sole perpetrator wasvital. Overthe course of the proceedingsin this case, the prosecutor and trial court, and now respondent, have mischaracterized the excluded evidence and thus minimized its probative value and its importance to the defense. Indeed, the court deniedthe constitutional claim in part on the > Barring evidencethat is exculpatory andcritical to the defense infringes the defendant’s weighty interest. © Significantly, respondent does not contend that this rights-to-a- defense test inaccurately explicates the law. 18 basis of its misperceptionsof the evidence’s probity.’ The trial court determined that the probative value was weak because character evidenceis inherently weak. When balancing appellant’s interests to elicit purportedly infirm evidence against the state’s interest to enforce its evidentiary rules, the trial court held that appellant’s constitutional rights to a defense could not override the court’s application of Evidence Codesection 1101. (49 RT 5810-5813.) Thetrial court’s failure to recognize that appellant sought to use the proffered evidence without makinginferences pertaining to Veronica’s disposition—a mistake that respondent urges this Court to repeat—pulled the rug out from under appellant’s argumentthathis rights to a defense required the admission of the proffered evidence. As explained above,the similarities in the abusive techniques, not the mere fact that Tillie abused Veronica andhersisters, provided the proffered evidence with its probative value. The balancing test for appellant’s rights-to-a-defense claim cannotbe valid if the key to the excluded evidence’s probity is disregarded. Barring the proffered evidencein this case is disproportionate to the purposesthat the Evidence Code section 1101 evidentiary bar was designed to serve. Although Evidence Code section 1101 by its terms applies to criminal defendants and others (RB 56), its core is the common-law propensity rule, which barred prosecutors from using a defendant’s prior crimes to provehis disposition and his guilt therefrom. (See Peoplev. Alcala (1984) 36 Cal.4th 604, 630-631 [discussing Evidence Code section 7 As respondent notes (RB 53), the trial court did not conclude that the proffered evidence lacked probity. Nevertheless, the court’s undervaluation of its probity impacted the trial court’s application of the constitutional-override balancingtest. 19 1101°s common-law roots]; cf. United States v. Aboumoussallem (2d Cir. 1984) 726 F.2d 906, 911 [explaining common-law origin of propensity rule and contrasting character evidence introduced against a defendant and by a defendant].) Barring third-party-culpability evidence against a separately tried alleged alternative perpetratorlies at the periphery of the evidentiary rule barring character evidence.’ Likewise, excluding evidenceof a prior act for which the alleged perpetrator was a victim and witness, rather than the culprit, also falls at the periphery of Evidence Code section 1101. Moreover, proscribing evidence for which the proponentdoesnotseek to makeany inferences regarding the alleged alternative perpetrator’s disposition and doesnot attempt to lay a foundation for any inferences regarding the alleged alternative perpetrator’s characterfalls far from the core of the bar on character evidence.’ Because the exclusion ofthe evidence, at best, falls at the outer limits of Evidence Codesection 1101, the state’s interest in enforcing thetrial court’s interpretation of Evidence Codesection 1101 is not nearly as strong the state’s interest in enforcing a 8 For this reason, severalcircuits of the United States Court of Appeals apply a lower threshold for admissibility of third-party-culpability evidence than prosecution evidence underthe federal analog to Evidence Code section 1101, though the evidentiary rule’s plain language does not differentiate between third-party-culpability evidence and prosecution evidence. (See United States v. Aboumoussallem, supra, 726 F.2d at pp. 911-912; United States v. Stevens (3d Cir. 1991) 935 F.2d 1380, 1404; United States v. McClure (Sth Cir. 1977) 546 F.2d 670, 673; see also, United States v. Cohen (11th Cir.1989) 888 F.2d 770, 777 [“When the defendantoffers similar acts evidence of a witness to prove a fact pertinent to the defense, the normalrisk of prejudice is absent.”’].) 9 Indeed, such evidence does not come within the orbit of Evidence Code section 1101; thus, excluding the evidence under that provision was erroneous. (See ante, at pp. 1-17.) 20 core application of the evidentiary rule againsta rights-to-a-defense claim.'° Appellant’s interest to present the heart of his defense outweighs the state’s interest in applying Evidence Codesection 1101 to exclude evidence pertaining to a separately tried co-defendantthat did not involve a prior bad act that she had committed and was offered for purposes unrelated to her disposition. Consequently, in this case, this state’s evidentiary rule must yield to appellant’s constitutional rights. Thus, the trial court’s exclusion of the proffered evidence violated appellant’s rights to a defense. Respondent claims that this Court should uphold the rejection of appellant’s constitutional claimsas it had with supposedly similar evidence in People v. Abilez, supra, 41 Cal.4th at p. 503. Despite the superficial similarities between this case and Abilez, the constitutional claimsin this case are muchstrongerhere than in Abilez. Unlike this case, in Abilez the defendant soughtto use a co-defendant’s dissimilar prior offense to prove the defendant’s propensity. (See id. at pp.498-502.) Because the only possible use for the other-crimes evidencein Abilez wasto prove propensity, the excluded evidence in Abilez was notparticularly probative | and implicated a core purpose of Evidence Codesection 1101. In this case, the defense interest in introducing the evidence was stronger and thestate’s '© Respondent mischaracterizes appellant’s argument whenstating “If [appellant’s] argument were accepted, Evidence Codesection 1101 would only apply to evidence of a defendant’s character.” (RB 56.) Appellant has not argued that Evidence Code section 1101 should be limited to a bar of the prosecution using prior-crimes evidence to show a defendant’s criminal propensity during the case-in-chief. Rather, appellant has argued that, under the rights-to-a-defense balancingtest, the state’s interest in enforcing peripheral applications of Evidence Code section 1101 is weaker than thestate’s interest in enforcing a core application of the evidentiary bar on character evidence. 21 interest in applying its evidentiary rule was weakerthan in Abilez. Accordingly, though the rights-to-a-defense balancing test favored the prosecution in Abilez, the balancingtest in this case showsthatthe trial court’s evidentiary ruling should have yielded to appellant’s constitutional rights to a defense. As such, holding thatthe trial court infringed appellant’s rights to a defense would be entirely consistent with Abilez. Respondent nevertheless contendsthat this Court has a long line of precedent holding that excluding defense evidence doesnotviolate a defendant’s constitutional rights and urges this Court to adhere to that purportedline of precedent. With the exception ofPeople v. Cudjo (1993) 6 Cal.4th 585 (see post, at p. 23 ), this Court has never made a blanket pronouncementthat the misapplication of an evidentiary rule to exclude defense evidence does not violate a defendant’s constitutional rights to a defense. Rather, aside from Cudjo, this Court’s decisionsrejecting defendants’ constitutional claims were fact-specific determinations that followed the well-settled rule that evidentiary rulings excluding defense evidencerarely implicate the constitution. Although respondentinsinuates otherwise, appellant agrees that most exclusions of defense evidence under state-law evidentiary rules are constitutional. Appellant, however, contends that this is one ofthe rare cases in which the rights to a defense must trump the trial court’s application of an evidentiary rule. Accordingly, appellant does not ask this Court to cast aside a long line of precedents; instead, appellant urges this Court to adhere to United States Supreme Court precedent. Respondent’s argumentthat exclusions of defense evidence under the Evidence Code cannotviolate the United States Constitution mustfail. In several cases, the United States Supreme Court has held that the 22 exclusion of defense evidence through the application or misapplication of a state’s evidentiary rules violated the rights to a defense. (See Holmesv. South Carolina, supra, 547 U.S. at. 328-441; Crane v. Kentucky (1986) 476 U.S. 683, 689-691; see generally, Skipper v. South Carolina (1986) 476 U.S. 1, 7 [holding trial court’s ruling excluding defense evidence,if inconsistent with precedent, had the effect of a state-law rule andthusis subject to constitutional analysis as if a state statute explicitly excluded defense evidence].) In respondent’s zeal to have this Court upheld the judgmentbelow,respondentessentially invites this Court to flout United States Supreme Court precedent and violate the supremacy clause ofthe United States Constitution. This Court must reject respondent’s argument. As explained in the openingbrief, this Court wrongly rejected the constitutional claim in People v. Cudjo, supra, 5 Cal.4th at p. 611. This Court’s pronouncementin Cudjo that a trial court’s misapplication of evidentiary rules cannot infringethe rights to a defense is flatly inconsistent with United States Supreme Court precedent. (AOB 72-75.) Respondent claims that appellant has not articulated a compelling reason for this Court | to overturn this portion of Cudjo. Appellant vehemently disagrees. Appellant cannotthink of a more compelling basis for overruling a case than its inconsistency with binding United States Supreme Court precedent. Under the supremacyclause, this Court cannot continue to adhere to Cudjo in the face of conflicting United States Supreme Court decisions interpreting the Sixth and Fourteenth Amendments to the United States Constitution. Assuming arguendothat the trial court did not abuseits discretion when excludingthe proffered evidence, the exclusion ofthe evidencestill violated appellant’s constitutional rights to a defense. Even if the trial court 23 did noterr, the rights-to-a-defense balancingtest tips in appellant’s favor. The excluded evidence wasessential to the defense. (See ante at pp. 18-19; see also AOB 65-68.) Moreover, it was more probative than a typical case in which the defendant seeks to admit character evidence of an alleged third-party perpetrator. In the prototypical case, a defendant accused of a sexual offense seeks to create a reasonable doubtbyeliciting evidence of a neighbor’s prior sex offenses to show the neighbor’s propensity to commit sex crimes. (See, e.g., United States v. DeNoyer (8th Cir. 1987) 811 F.2d 436, 440 [upholding exclusion of third-party-culpability evidence offered only to prove neighbor’s propensity to commit sex offenses].) In this case, appellant proffered the evidence for a purposethat did not involve making inferences involving Veronica’s disposition. In addition, evidence of Veronica’s opportunity to commit the offense could not have beenstronger. Forthese reasons, the proffered evidence in this case wasfar less speculative than the third-party-culpability character evidencethatis routinely excluded without violating a defendant’s constitutionalrights. Becausethe proffered evidence was substantially more probative than typical third-party-culpability character evidence,the likelihood of an erroneous acquittal resulting from the admission of the evidence was significantly lowerin this case than in the run-of-the-mill cases. Moreover, the state’s interest in enforcing its evidentiary rule was lessened because the excluded evidence doesnotfall within the core of Evidence Code section 1101. (See ante, at pp. 19-21.) Consequently, in this case, appellant’s interests in eliciting the proffered evidence outweighsthe state’s interest in applying its evidentiary rule. Accordingly, the exclusion ofthe proffered evidenceinfringed appellant’s rights to a defense evenif the trial court’s exclusion of the evidence under Evidence Codesection 1101 did not 24 constitute state-law error. 2. The Continued Exclusion of the Proffered Evidence at the Penalty Retrial Violated Appellant’s Sixth, Eighth, and Fourteenth AmendmentRights The exclusion of the proffered evidence at the penalty retrial further violated appellant’s rights to a defense. It also infringed additional constitutional rights, including the rights to present relevant mitigating evidence, rebut aggravating evidence, and havea fair and reliable capital- sentencing determination. First ofall, the exclusion of relevant mitigating evidenceis per se error under Skipper v. South Carolina (1986) 476 US.1, 7. The excluded evidence was indisputably relevant; neither the trial court nor respondent has found or claimed that the evidence wasirrelevant. Even if this Court does not hold that the exclusion of relevant mitigating evidence is Skippererror per se, the exclusion of the evidence nonetheless violated appellant’s Eighth and Fourteenth Amendmentrights. The evidence-rule- override balancingtest at the penalty phase is more favorable to appellant than the balancing test for appellant’s rights to present a guilt-phase defense. The proffered evidence is more probative ofrelative culpability thanit is of guilt. Furthermore, appellant’s life is at stake. Thus, appellant’s interests are stronger than they are forhis guilt-phaserights-to- a-defense claim. On the other side of the coin, the states’s interest is weaker. There wasnorisk of an erroneous acquittal at the penalty retrial. Moreover, evidenceis typically more freely admitted at a penalty phase than at the guilt phase of a capital case. So, whether this Court uses a perse Skipper error standard or employs a balancingtest, the exclusion of proffered evidence infringed appellant’s Eighth and Fourteenth Amendment rights. 25 Respondent nonetheless urges this Court to reject appellant’s Eighth and Fourteenth Amendmentclaims. But, respondent’s argumentcollapses under the weight of two faulty premises: one, that the lone purpose for the proffered evidence was inferring Veronica’s guilt from her purported disposition; two,that the trial court properly excluded the evidence under Evidence Code section 1101. Contrary to respondent’s insinuation, appellant recognizesthat the ordinary application ofthe rules of evidence do not violate a capital defendant’s constitutionalrights at the guilt or the penalty phase. Only in rare circumstances must a state’s evidentiary rule yield to a defendant’s constitutional rights. This is one of those cases. Cc. The Exclusion of the Proffered Evidence WasReversible Error Excluding the evidence of the similar disciplinary techniquesthat wereutilized in Veronica’s family of origin cut out the heart of appellant’s defenseat the guilt phase and penalty retrial. Although respondentclaims otherwise, the evidence against appellant was hardly overwhelming. With respectto the conviction, the special-circumstance finding, and the death sentence, the exclusion of the proffered evidence was not harmless, and the judgment below mustbe vacated in full. Dueto either the state-law errors or the infringements of appellant’s constitutional rights, appellant’s first degree murder conviction cannot stand. The evidence wastoo probative and central to the defense (see ante, at pp. 18-19), and the prosecution evidence was too weakfor the errors to be deemed harmless. Respondentclaimsthat any error was harmless because the evidence against appellant was overwhelming; however, respondent's harmlessness argumentreadslike a sufficiency claim. The harmlessness question for 26 appellant’s constitutional claims is not whetherthe jury might have convicted appellantif the trial court had not erred; it is whether the jury might not have convicted appellant absentthe error. The evidence that appellant perpetrated the offense was not remotely compelling. The brutality of the crime, with which respondent attempts to buttress its harmlessness argument, is immaterial to whether appellant committed the crime. A prosecution witness testified that Genny’s injuries could have beeninflicted by any adult of any gender. (53 RT 6526; 93 RT 11653.) Appellant presented evidence that the fatal burn wasinflicted after appellant had left the apartment. Respondent suggests that the prosecution definitely established that Genny waskilled long before appellant was seen walking out of his apartment. (RB 58-59.) However, the evidence wasnot nearly as clear cut as respondent suggests. Appellant may have beenout to the store at the time Genny sustained the final burn. After appellant had left, appellant’s neighbor Alicia Montes heard water running in appellant’s apartmentfor a long period of time. (57 RT 7087-7088.) That could very | well have been the sound of Veronica running the scalding-hot bath in which Genny was burned. The only evidencethat, if true, definitively disproved appellant’s proposed timetable wasfirefighter John Miller’s testimony that Genny’s jaw had rigor mortis when he attempted to do CPR after arriving at 9:25 pm; because of the time it would have taken for death to occur and rigor mortis to set in, Miller’s testimony rebutted the defense theory that Veronica inflicted the fatal burn after appellant was seen leaving the apartment at dusk. Miller, however, did not take contemporaneous notes ofthe incident, and a neighbor’s nephew whoattempted CPRtestified that rigor mortis had notset in. (50 RT 6008; 56 RT 7023; 93 RT 11766; 27 95 RT 11939.) The jury could reasonably have concludedthat Miller’s recollection was faulty, or have had doubts about its accuracy. Moreover, even if Genny had been burned in the bathtub while appellant was in the apartment, appellant’s mere presence would not have been a sufficient basis for the conviction. (See People v. Durham (1969) 70 Cal.2d 171, 181.) Appellant’s admissions were limited and may have been untrue. The jury could reasonably have concludedthat appellant, during his interrogation, was trying to protect Veronica. To the extent that the admissions weretrue, the suggested inference that appellant victimized Genny washardly inevitable. For example, appellant putting up the hook or placing Gennyin a boxto scare her does not provethat appellant brutalized her. The jury could reasonably have concluded that appellant did not intend to seriously hurt Genny. There is a difference between giving oneself the potential to make a troublesome threat and carrying out a disturbing deed. The jury could reasonably have concludedthat appellant merely soughtto make idle threats. Similarly, appellant’s adniission that he bought handcuffs as a sex toy is minimally probative of participation in torture. Respondent’s assertion is akin to arguing that a defendant, because he boughta kitchen knife, must have been the person who stabbed the victim with it. Likewise, appellant’s admission to disciplining his children with a belt fails to show participation. Hitting children with a belt bearslittle resemblance to what was done to Genny. In addition, the undisputed evidence showedthat appellant’s children had not been abused. Thus,it appearsthat by inferring appellant’s guilt of the offense against Genny based on appellant’s admissions to disciplining his own children, respondent is making the very type of forbidden character inferencethatit decries. Moreover, the jury could reasonably have reached the opposite 28 conclusion: When appellant disciplines children, he does so reasonably. Although appellant allegedly told exculpatory lies during the interrogation, the jury could have reasonably concluded that appellant was dishonest because he wastrying to protect Veronica. The consciousness-of- guilt inference is permissive, not mandatory. Accordingly,the jury could have found, but was not required to find, that appellant’s alleged untruths suggested that he was guilty. Moreover, the jury could reasonably have found have found that appellant’s apparent admissions were efforts to shield Veronica—his wife and the mother of his children—from being found guilty and that Veronica, who was familiar with the bizarre abusive techniques used against Genny, wasthe sole perpetrator. In addition, the jury could reasonably have concludedthat appellant unknowingly stated someuntrue things to the police based on what Veronica told him. For example, if Veronica had intentionally burned Genny’s head and neck with a hot liquid andlater told appellant that Genny had burnedherself, appellant telling the interrogatorsthat the initial burn wasaccidentally inflicted did not indicate any consciousnessofguilt. Furthermore, respondent’s claim that the prosecution evidence was overwhelmingrelies heavily on Ivan Jr.’s highly unreliable preliminary hearing testimony.'' Respondent unquestioningly assumesthat the factfinder would inevitably have believed Ivan Jr.’s fanciful allegations. Respondent’s approachis inappropriate for harmless-error analysis; unlike a sufficiency claim, this Court cannot view the evidencein the light most favorable to the prosecution. Significantly, while he was cross-examined '! The testimony’s questionable veracity may have been whythe prosecutordid notintroduce Ivan Jr.’s prior testimonyat the penalty retrial. 29 gently, Ivan Jr. backpedaled away from many ofthe serious allegations he had madeduring his direct examination. Most importantly, he retracted his direct-examination testimony that he saw appellant and Veronica giving Gennya bath onthe day she was burned in the bathtub. In addition, Ivan Jr.’s most inventive allegations, such as appellant and Veronica orderingthe children to throw hard balls at Genny and forcing Genny to eat feces, lacked corroboration. For these reasons, the jury could have reasonably rejected all of Ivan Jr.’s testimony asincredible, or at least rejected the uncorroborated testimony. Consequently, this Court should accord Ivan Jr.’s prior testimony with little or no weight when conducting harmless-error analysis. In its harmless-error argument, respondent attempts to minimize the impactofthe grievouserrors by grossly distorting the nature ofthe excluded evidence. By considering the excluded evidence to be run-of-the- mill propensity evidence, respondent misperceivesthe probity of the proffered evidence, which respondentterms“speculative and weak.” (RB 61.) Unlike the mythical evidence supposedly put forth by the straw man that respondenthas created, the evidencethat appellant actually proffered washighly probative. Yet again, respondent mischaracterizes the inferences that appellant soughtto make with the proffered evidence. Respondent wrotethat the excluded evidence “would require speculation that just because Veronica grew upin an abusive household, she was the one whoperpetrated the abuse against Veronica.” (RB 62.) Toreiterate, that is not the inference appellant wanted to make. Appellant soughtto establish that Veronica was the sole or primary perpetrator from the similarity of abusive techniques—not the merefact that “Veronica grew upin an abusive household.” (RB 62.) 30 Appellant sought to present convincing evidence of abusive techniques in Veronica’s family of origin. Although Alexandra Krahelski, the social worker, had no independent recollection of her investigation of the abuse in Veronica’s family of origin, she kept contemporaneous records that would have been admissible and could have refreshed herrecollection. Beverly Ward’s limited recollection of the specific abusive techniquesTillie had usedeighteen years earlier does not weaken the proffered evidence; she made contemporaneous statements to Krahelski. In any event, Ward rememberedthat Tillie pulled Veronica, Mary, and Anita’s hair—an abusive technique Tillie utilized that mirrored what was done to Genny. Paul Becerra would havetestified about the battering and burning, two additional types of overlapping abusive techniques. Shirley Leon could have testified about Veronica andhersisters telling her how Tillie wasb burning and otherwise abusing them. The absence ofevidence that Veronica specifically had been victimized was not material for appellant’s proffered inferences; Veronica would have learned the abusive techniques whether she experienced or merely observed them. | The inferences appellant sought to make were reasonable, not speculative. Attrial, the parties and the court acted like the evidence was very important. Contrary to respondent’s assertion, appellant presented evidence of similarities in excessive disciplinary techniques. Respondent refuses to acknowledgethat the key to that evidenceis similarity of bizarre techniques—notthe fact that abuse took place in Veronica’s family of origin. Respondent’s contention that Veronica not similarly abusingall of her children undermined appellant’s proffered inferences should be rejected. The lack of identical modus operandi does not render signature- crime evidence inadmissible (see People v. Hovarter, supra, 44 Cal.4th at p. 31 1004), and does not materially weaken the probity of appellant’s proffered evidence, which was powerful even though the abuse against Genny was not a carbon copy of whatTillie did to her daughters. The similarity of the abusive techniquesand their bizarreness providedsufficient probative value. Respondent’s biting assertion that “beat{ing] and tortur[ing] a helpless child” required no specialized knowledgeis immaterial; specialized knowledgeis notpart of the chain of relevancy for the proffered evidence.'” (RB 63.) If the evidence wasasineffectual as respondentclaims, it is doubtfulthat the prosecutor would have fought tooth and nail to excludeit. Respondent’s rebuttal to appellant’s argument that the evidence of guilt was thin is unpersuasive. Respondent makes manyinferencesinits favor. Again, that would be appropriate for an insufficiency-of-the- evidence claim. Harmless-error analysis is different; an appellate court engaging in harmless-error analysis must considerthe possibility that the factfinder might have madereasonableinferencesin the defendant’s favor. For instance, although the jury could have reasonably inferred from . appellant’s admission that he put up the hook in the master bedroom closet that he was the one who abused herwithit, the jury could also have reasonably inferred that he did no morethan put the hook up. Similarly, though the jury could have concluded that appellantinflicted the fatal burn based on appellant’s admission that he had put Genny in an appropriately '2 Signature-crime evidence also does not require specialized knowledge. For example, this Court has found that the location of crimes wasa significant characteristic to a signature crime. Committing multiple offenses on Route 101 takes no specialized knowledge, butit is a point of similarity that, together with other similar characteristics that do not involve specialized knowledge, can reasonably lead to inferring the perpetrator’s identity. (People v. Hovarter, supra, pp. 1003-1004.) 32 warm bath,the jury could also have concluded that appellant merely gave Gennya routine bath hours before the bath in which Genny was burned. Moreover, although Veronica’s statement that she alone put Gennyin the bath in which she drowned was untrue with respect to how Gennydied, the jury could have reasonably concluded the non-exculpatory portion ofthe statement was an admission to burning Genny without appellant’s assistanceorparticipation. Surely, the inference from Veronica’s admission that Veronica wasthe only adult present in the bathroom whensheinflicted the fatal burn is no less reasonable than the inference from appellant’s admission that appellant participated in inflicting that burn. Yet, respondent deemsthe former inference unreasonable andthelatter inevitable. Respondent’s rejoinder is further weakened by two matters discussed above. First, the timing of Genny’s death was very muchin dispute. (See ante, at pp. 27-28.) Second,the jury could have reasonably concluded that Ivan Jr.’s testimony inculpating appellant was not credible. (See ante, at pp. 29-30.) For these reasons, the evidence of appellant’s guilt was indeed weak. | Despite respondent’s refusal to recognizeit, the lengthy deliberations show that this was a close case. Seven days of deliberations following twelve days of receiving evidence is unusually long. A panoply of precedents support the proposition that a long deliberation implies a close case. (See Parker v. Gladden (1966) 385 U.S. 363, 365 [“the jurors deliberated for 26 hours, indicating a difference among them”]; Jn re Sakarias (2005) 35 Cal.4th 140, 167 [determining ten-hour deliberations showed closeness of case]; People v. Cardenas (1982) 31 Cal.3d 897, 907 [twelve-hourdeliberations]; People v. Woodard (1979) 23 Cal.3d 329,341 {six-hour deliberations].) The jury should be commendedfor its meticulous 33 review of the evidence; nonetheless, the fact that it took the jury so long to decide on one count and one special-circumstance allegation suggeststhat the jury perceived this case quite differently from respondent. If evidence of appellant’s guilt and the special circumstance were remotely as compelling as respondent suggests, the jury could quickly have convicted appellant and found the special circumstancetrue. Byail indications, this was a closecase at the guilt phaseand,thus,it is reasonably probable that the admissionofthe proffered evidence would have tipped the scales away from a conviction. (See People v. Watson, supra, 46 Cal.2d at p. 836.) Even if this Court determines that the prejudice for state-law, guilt-phase error has not been met, reversalis required for the constitutional claims because respondent cannot show beyonda reasonable doubtthat the errors were harmless. (See Chapman v. California, supra, 386 U.S.at p. 24.) Appellant’s conviction must be vacated. If this Court lets appellant’s conviction stand,it should nevertheless vacate the special-circumstancefinding. The torture-murder special circumstance requires finding that the defendant intended to kill and intended to torture. (See People v. Davenport (1985) 41 Cal.3d 247, 271.) The prosecution’s only path to proving appellant’s mens rea was to implyit from the acts committed against Genny. The excluded evidence suggested that Veronica was the mastermind and primary perpetrator of the offense. The converse inference is that appellant was not the primary perpetrator. From that, it can be inferred that appellant, as the minorparticipant, did not intend to kill or torture, evenif the requisite mens rea could be inferred from the totality of the acts perpetrated upon Genny. Respondent’s argumentthat the error had no impactonthe special- circumstance finding suffers from the same fundamentalflaw asits 34 harmless-error analysis with respect to the conviction. By distorting the nature of the excluded evidence, respondentsubverts the evidence’s apparentprobative value andcreatesa false illusion of harmlessness. Due to the combination of the strength of the proffered evidence and the weakness of the evidence that appellant intended to torture and kill Genny, it is reasonably probable that the jury would not have found the torture- murderspecial circumstanceif the trial court had admitted the excluded evidence. (See People v. Watson, supra, 46 Cal.2d at p. 836.) At the very least, respondent cannot not showthat the violation of appellant’s constitutional rights was harmless beyond a reasonable doubt. (See Chapmany. California, supra, 386 U.S. at p. 24.) Because the torture- murderspecial circumstance wasthe only death-eligibility factor alleged, vacating the special-circumstance finding requires vacating the death judgment. Even if this Court upholds the conviction and special-circumstance finding, this Court should vacate the death judgment. Relative culpability comprised the key issue at the penalty retrial. The excluded evidence was | central to appellant’s case that he was, at most, a minorparticipantin the offense and that Veronica wasthe ringleader. The exclusion of the evidence neutered appellant’s penalty-phase defense. There wasatleast a reasonablepossibility that the court’s erroneousevidentiary ruling and the concomitant infringement of appellant’s constitutional rights impacted the jury’s death-sentencing decision. (People v. Brown (1988) 46 Cal.3d 432, 448.) Yet again, respondentdistorts the excluded evidence to rob it of most of its probative value. The proffered evidence washighly relevant toward determining the identity of the primary perpetrator. Give the bizarreness 35 and similarity of the disciplinary techniques, the evidence strongly indicates that Veronica mastermindedthe offense. It is implausible that the proffered evidence would not possibly have changed the outcomeofthe penalty determination. Thefirst jury hung after seven days of penalty-phase deliberations. At the penalty retrial, appellant needed only one holdout juror not to get sentenced to death. Fewerinferences are required to show penalty-phase prejudice than to show guilt-phase prejudice. With respect to the conviction, showingthat Veronica wasthe ringleader does not definitively demonstrate that appellant wasnot a participant and thus not guilty; an acquittal would have required an additional inference. With respect to the special circumstance, appellant’s lack of intent would have hadto be inferred from appellant being at most a minorparticipant. At the penalty phase, however, appellant’s status as a minorparticipantis itself a mitigating factor that relates to the circumstances of the offense. If the factfinder would have concluded that Veronica wasthe primary perpetrator, no further inferences | would have been needed for the factfinder to give mitigating weight to that fact. Dueto the subjective nature of the penalty determination, this Court cannot concludethat the erroneous exclusion of the evidenceat the heart of appellant’s penalty-phase defense was harmless. In his openingbrief, appellant explained at length why nontrivial penalty-phase errors should rarely be deemed harmless and why the overwhelming-evidence test should not be used in penalty-phase-harmlessness analysis. (AOB 94-98.) Instead of substantively rebutting appellant’s argument, respondent summarily states that appellant’s argument is unpersuasive. Appellant does not concur. 36 The wrongful exclusion of the evidence, under false premises, that lied at the core of appellant’s defense at the guilt phase and penalty retrial was not harmless. This Court should vacate the conviction, special- circumstance finding, and death judgment. 37 IL. THE EXCLUSION OF EVIDENCE OF VERONICA GONZALES’S ANTIPATHY TOWARD MARYROJAS VIOLATED THE EVIDENCE CODE AND APPELLANT’S CONSTITUTIONAL RIGHTS A perplexing aspect aboutthe evidence presentedatthetrials in this case the appearance that neither defendant had a motive to harm Genny. Appellant soughtto present evidence suggesting that Veronica had a motive to abuse Genny; however,the trial court excludedit as irrelevant. That ruling waserroneous,infringed appellant’s constitutional rights, and requires vacating the judgment below. A. The Excluded Evidence Was Admissible Thetrial court erred in concluding that the only available motive evidence wasirrelevant. The threshold for relevancy is low. For evidence to be relevant, it must “‘hav[e] any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination ofthe action.” (People v. McNeal(2009) 46 Cal.4th 1183, 1200, quoting Evid. Code, § 210.) Accordingly, an item of evidenceis relevantif it directly or by reasonable inference establishes a disputed material fact. (See, e.g., People v. Hamilton (2009) 45 Cal.4th 863, 913.) The evidence consisted of Veronica’s statements during her interrogation in which shecalled her sister Mary, who was Genny’s mother, “a little bitch.” (2 CT 383.) During that interrogation, she blamed Genny’s inability to speak at 4'4 years old on Mary freaking Gennyout. (2 CT 454.) It was undisputed that the evidence showed that Veronicaharboredill will toward Mary and that any evidence of Veronica’s motive to harm Genny would have been admissible third-party-culpability evidence. Thetrial court, however, ruled that Veronica’s motive to abuse Genny could not be 38 reasonably inferred from her antipathy toward Mary. That waserror. The inference that appellant sought to make from the excluded evidence was reasonable. As detailed in the opening brief, appellant and Veronica were poverty-stricken and struggling to raise six children in a small two-bedroom apartment whenTillie handed Genny off to them. Genny wasincontinent and unable to speak. Due to Genny’s behavioral problems, Tillie was not able to care for her. After trying to be her caregivers for several months, Anita and Victor Negrette, Veronica’s sister and brother-in-law, also could not raise Genny. With Mary in a drug- rehabilitation program,Tillie had no other child besides Veronica to whom she could turn. These facts suggest that Veronica’s ill will toward Mary could have created a motive for Veronica to hurt Genny. The excluded statements themselves reveal the nexus between Veronica’s feelings toward her sister and her motive to abuse Genny. Veronica called Mary little bitch when explaining to the detectives how Genny cameto live with her and appellant. (2 CT 382-385.) After a detective disputed Veronica’s assertion that Genny did not scream, Veronica explained that Genny did not talk, a developmental delay Veronicaattributed to Genny’s “damn motherget[ting] her so goddamn freaked out.” (2 CT 454.) During the interrogation, Veronica spoke negatively of Mary only when discussingthedifficulties of raising Genny. It would not be stretch to infer that Veronica also attributed Genny’s other developmental delays outside ofthe realm of her speech to Mary’s parenting. Respondentnotesthat the trial court stated that it would have admitted the evidenceif appellant presented additional evidenceofa link between Veronica’s antipathy toward Mary andherfeelings toward Genny. 39 (RB 69.) Although appellantdid not provide new evidence ofthe link, appellanthad already presented sufficient evidence of the nexus between Veronica’s hostile feelings toward Mary and the abuse of Genny. Aside from baldly agreeing with the trial court, respondent does not explain why the evidence of the nexus did not suffice. (RB 69-70.) To the extent that the strength of the inference was questionable, the purported weaknessofthe inference presented a question ofthe proffered evidence’s weight, notits admissibility. The connection between Veronica’s antipathy for Mary and the abuse of Genny wastoo substantial for the inference to be deemed speculative; a factfinder could reasonably have concluded that Veronica’s feelings toward Mary were related to and provided a motive for the victimization of Genny. A factfinder might have, as the trial court did, determined that Veronica’s ill will toward Mary did not impact Veronica’s treatment of Genny; however, it should have been the jury, not the court, that made the determination of whether the excluded evidence pertained to Veronica’s motive. Under Evidence Codesection 403, evidence ofdisputed relevance should be admitted if the proponent of. the evidence producedsufficient evidence for a jury to find it relevant. (See People v. Lucas (1995) 12 Cal.4th 415, 466.) Appellant provided ample evidence of the nexus between Veronica’s antipathy toward Mary and her feelings toward Genny; accordingly, the court should not have precluded the jury from evaluating the excluded evidence. | Furthermore, the evidence of Veronica’s ill will toward Mary should not have been excluded under Evidence Codesection 352. Because the evidence of Veronica’s third-party culpability was capableof raising a reasonable doubt regarding appellant’s guilt, Evidence Code section 352 40 cannotbe an independentbasis for excluding the evidence.'’ Respondent’s assertion that the evidence could not have raised a reasonable doubt regarding appellant’s guilt is undergirded by shaky premises. First, respondent makesall inferences in its favor, although the jury might have reasonably concluded otherwise. Second, respondent again misstates the nature and probity of the excluded evidence regarding the abusive techniques used in Veronica’s family of origin. Third, respondentdistorts other exculpatory evidence that appellant presented. For example, respondentstates that, aside from short trips to the store, appellant did not leave the apartment on the day of Genny’s death (RB 70), despite there being undisputed evidence that appellant hadleft the apartment forat least an hour that evening and the water was runningin the apartmentfor a long period of time while appellant was gone. (52 RT 6244-6245, 6264, 6353; 53 RT 6531; 57 RT 7085-7088.) Fourth, respondent assumesthatthetrial court correctly excluded other defense evidence although appellantis challenging those adverse rulings. Fifth, respondent asserts that evidence of Veronica’s guilt does not constitute evidence of appellant’s innocence. Although evidence of Veronica’s culpability need not necessarily be evidence of appellant’s innocence,that inference could often be reasonably made. Indeed, in People v. Hall (1986) 41 Cal.3d 826, 833-834, this Court held that third-party-culpability evidence that did not definitively prove the defendant’s innocence could create a reasonable doubt of the defendant’s '3 Misconstruing appellant’s argument, respondentnotes that irrelevant evidence pertaining to third-party culpability is not admissible. (RB 70.) Respondent’s recitation of the law is indisputablytrue. Appellant’s actual argumentis that the trial court’s exclusion of the evidence should not be upheld because the evidence, if relevant, was inadmissible under Evidence Code section 352. (AOB 104-105.) 41 guilt. In this case, inferring appellant’s innocence from evidence of Veronica’s guilt was reasonable,as the trial court found. Moreover, the exclusion of the evidence carried through to the penalty retrial, at which appellant sought to show that Veronica wasthe primary, and not necessarily the only, perpetrator. Thus, neither Evidence Code section 350 nor Evidence Code section 352 provided a basis for barring the evidence. The trial court abusedits discretion when it ruled that the evidence was inadmissible. B. The Exclusion of the Evidence Infringed Appellant’s Constitutional Rights Because the evidence of Veronica’s antipathy toward Mary was exculpatory andcritical to the defense, the exclusion ofthe evidence violated appellant’s rights to a defense. The key to appellant’s defenseis that Veronica was more culpable, or solely culpable, for the torture-murder. Evidence suggesting that Veronica had a motive that appellant did not have was a crucial componentof that defense. In addition, the prosecution lacked a countervailing interest to exclude the motive evidence. The exclusion of the evidence notwithstanding the nexus between Veronica’s rancor toward Mary andthe abuse of Gennyessentially imposes a high- probity requirementfor relevancy. Suddenly raising the bar for demonstrating relevancy over what was required at commonlaw or under Evidence Codesection 210 cannot trump appellant’s rights to a defense. Moreover, the potential for prejudice from admitting the evidence is low. If the jury were to find the inference weak, the logical result would be to consider the evidence immaterial. Accordingly, there is a minimal threat of a wrongful acquittal from the jury misusing the evidencethat Veronica hated her drug-addictedsister. 42 The exclusion of the evidenceat the penalty retrial also infringed appellant’s constitutional rights. Excluding the evidence pertaining to Veronica’s motive was Skipper error per se. (See Skipper v. South Carolina, supra, 476 U.S. at p. 7.) Even if this Court does not use a per-se standard for Skipper error, the balancing test for constitutional overrides of state-law evidentiary rulings yields the same result. The balancingtest for constitutional error at the penalty retrial is similar to the rights-to-a-defense balancing test, with one exception: Appellant’s interest in introducing the evidence wasstrongerat the penalty retrial than at the guilt phase because the motive evidence was moreprobative at the penalty retrial, in which relative culpability comprised the key issue. C. The Exclusion of the Evidence Was Reversible Error Becausethe proffered evidence pertained to Veronica’s motive,its erroneous exclusion was not harmless undereither the Watson or Chapman standard. Asthe only evidence pertaining to either defendant having a motive to harm Genny, the excluded evidence was quite probative. The jury could have reasonably inferred that Veronica transferred her antipathy from Mary to Genny,particularly because Mary’s drug addiction resulted in appellant and Veronica needing to care for Genny and Mary’s appalling parenting made Gennyespecially difficult to care for. Furthermore, the jury could reasonably have adopted Dr. Perez-Arce’s opinion that Genny had a symbolic meaning for Veronica.'* '4 Contrary to respondent’s assertion (RB 71), the exclusion of Dr. Perez-Arce’s testimony has not in any way been forfeited on appeal. Appellant soughtto elicit her testimonyattrial, and shetestified at an Evidence Code section 402 hearing. Appellant sought to admit her testimonyin its entirety, and the trial court excludedallof it except for (continued...) 43 Respondent’s dubious claim that the excluded evidence suggested that Veronica’s motive was to protect Genny wasbelied by the evidence that she singled out Gennyfortorture.'* The exclusion of the evidence was prejudicial because Veronica had both motive and opportunity to harm Genny, and appellant hadonly the latter. Although evidencethat Veronica had motive for andintent to victimize Genny does not necessarily exonerate appellant, it is probative toward appellant’s lack of participation or intent. It is reasonably probablethat the jury would have reached different guilt- phaseverdictsif the trial court had admitted the evidence. Moreover, respondent cannot show thatthe denial of appellant’s constitutional rights flowing from the exclusion of the motive evidence was harmless beyond a reasonable doubt. Accordingly, the murder conviction and special- circumstance finding must be vacated. The error was more prejudicial at the penalty retrial. If only Veronica had a motiveto torture or kill Genny, that is highly probative towardherbeing the ringleader. That in andofitself is a mitigating factor ‘that could havecarried significant weight with the jury. For that reason, excluding the evidence was notharmless underthe state-law or federal- constitutional standards. In any event, assuming arguendothattheerroris '4(, continued) evidenceof appellant’s good character and background. (47 RT 5516- 5614; 48 RT 5762-5763.) 'S Tn view of the prosecution seeking and obtaining a torture-murder conviction and death penalty against Veronica, respondent should be estopped from arguing that Veronica’s motive wasto protect Genny. (See In re Sakarias (2005) 35 Cal.4th 140, 156-160; United States v, Bagley (9th Cir. 1985) 772 F.2d 482, 489.) 44 not reversible by itself, the exclusion of the evidence is an important componentof appellant’s cumulative error claim. Evidence of Veronica’s antipathy toward Mary wasonepart of a cluster of key defense evidence that the trial court refused to admit into evidence. 45 III. THE EXCLUSION OF VERONICA GONZALES’S CONTEMPORANEOUS INCULPATORY REMARKS WAS ERRONEOUS AND UNCONSTITUTIONAL After the police respondedto the 9-1-1 call made from a neighbor’s apartment, Veronica told twopolice officers that she put Gennyin the bathtub, went to cook dinner, and, upon returning to the bathroom to check on her, found that Genny had drowned. Because Veronica spoke in the first-person singular, appellant soughtto use those statements to show that Veronica wasthe sole or primary perpetrator. Although Veronica was agitated from the time she ran out of her apartment seeking help until she wastaken to the police station, at the penalty retrial the trial court excluded Veronica’s inculpatory statements as inadmissible hearsay. That ruling was erroneous, andit violated appellant’s constitutionalrights. A. The Excluded Evidence Was Admissible Veronica’s statements to the police officers, which the prosecution elicited in its case-in-chief at the guilt phase ofthe first trial, were admissible under two hearsay exceptions. They were spontaneous statements that, as a whole, went against her penalinterest. Veronica’s remarks were spontaneousstatements. Veronica was under the stress of excitement from fatally burning Genny. Genny’s death, which may havesurprised Veronica, appears to have beenthe trigger for her emotional outburst. According to the timeline asserted by the defense, Veronica burned Gennyafter appellant had left the apartment and panicked when Veronica wentinto shock and died.'® The panic wasnotinconsistent '6 Although respondentasserts that the burn wasinflicted three to six hours beforethe police arrived, respondent recognizes that the Genny (continued...) 46 with inflicting the fatal burn; the mechanism of death—burn from tap water that filled the bathtub—wasnot obviousto a layperson, particularly an ignorant person using methamphetamines. Indeed,it is likely that Veronica wassurprised that immersing Gennyin the bathtub for no more than ten seconds turned fatal. Contrary to respondent’s argument, Veronica probably did find Gennyin distress. That Veronica wassurprised and panicked when she found Genny deadis corroborated by Officer Collum’s testimony that Veronica was emotionalafter the police arrived and by neighbors’ similar observations after she ran out of her apartment.'” Genny’s body feeling cold does not inevitably lead to respondent’s preferred conclusion that she had been dead for a long time when Veronica ran out of her apartmentin a panic; it could have been a symptom of Genny having been in shock. (51 RT 6117.) Likewise, Genny’s body, hair, and shirt being dry proveslittle. Because at least an hour had passedsince the lower half of Genny’s body was immersedin the bathtub, Genny’s dryness wasnot remotely inconsistent with Veronica being surprised and panicked '6(,..continued) could have gone into shock and died an hourafter the infliction of the burn. (RB 78-79.) Respondenttherefore implicitly recognizes that Veronica could have burned Gennyat approximately 8:10 pm—after appellant had left the apartment and Alicia Montes heard water runningin the apartment—seventy minutes before the 9-1-1 call was placed at 9:20 pm. (56 RT 7020.) '7 Respondent contends that Officers Bennett and Moetestifying that Veronica was calm when she madethe statements demonstrates that Veronica was not underthe stress of an exciting event. (RB 79.) As respondent recognizes, evidence pertaining to Veronica’s demeanor was inconsistent. Accordingly, the impressions of Officers Bennett and Moe, which were not contemporaneously recorded, fail to establish that Veronica’s statements were not spontaneous. 47 to find Genny dead and, uponrealizing that she had killed her young niece, screaming for her neighbors to help. Thus,it appears that Veronica did not deliberate or reflect on the situation after she discovered that Genny had died. Veronicatelling the drowning story does not demonstrate that she deliberated or reflected on thesituation. Rather, it showsthe opposite. It did not require much rumination for Veronica to create a story that would be disproved after looking at Gennyfor less than one second. Her obviously false story is similar to a six-year-old child’s hackneyed excuse that a dog ate his homework. The spontaneous-statement exception should not be premised on the supposition that the hearsay declarant’s statementis likely reliable because the declaranthas not had the opportunity to fabricate a lie; that is a legal fiction. It takes neither time nor ingenuity to devise an utterly unconvincing story. Nevertheless, the absence of opportunity to reflect and create a plausible and convincing story limits the likelihood that a factfinder would erroneously find a false story to be true. In this case, Veronica’s lack of reflection makesit unlikely that Veronica madeup the inculpatory portion of the remarks in order to have her story seem plausible. Thus, the inculpatory parts of her statement were indeed trustworthy. Veronica’s remarksto the police officers related to the incident that caused Veronica’s excitement: Genny’s death. Veronica spoke to Sergeant Bennett and Officer Collum about what had happened to Genny. Respondentcontends, asthetrial court concluded, that the exciting event was Veronica supposedly finding Genny submerged in the bathtub, not putting Genny in the bath water. Respondentis splitting hairs. The two events are inextricable. Veronica found Genny dead because she had placed Gennyin the hot bathtub. It is senseless to state that putting Genny 48 in the bath water did not cause Veronica’s excitement. Because the distinction respondent attempts to make is untenable, this Court should conclude that Veronica’s statements to Sergeant Bennett and Officer Collum were made “underthe stress of excitement caused”by the incident about which she wastalking. (Evid. Code § 1240.) Once again, respondent improperly analyzes the trial court’s ruling by making all inferencesin its favor. That approachis inconsistent with Evidence Code section 405. As the proponent of the hearsay evidence, appellant had the burden of producing sufficient evidence that the hearsay exception applies. Appellant met that burden by presenting ample evidence of both prongs of the spontaneous-statement hearsay exception: Veronica was underthe stress of the excitement of causing Genny’s death, and her statements related to that incident. Respondent’s analysis supposesthat appellant faced a much more imposing burden: that there not be sufficient evidence to support the conclusion that the hearsay exception did not apply. That is not the law. Respondent’s argument that Veronica’s remarks fall outside the ambit of the spontaneous-statement hearsay exception because they are unreliable disregards the key point that appellant has not sought to admitthe unreliable portion of Veronica’s remarks for the truth of the matter asserted. Appellant does not contendthat the clearly false exculpatory comments regarding Genny purportedly drowning in the bathtub arereliable. Rather, he would have used the drowning story to show Veronica’s consciousness of guilt—the very purpose for whichthe prosecutorelicited this evidenceat the guilt phase of appellant’s trial. Contrary to respondent’s contention (RB 85, fn. 14), appellant’s claim that he intended to use the unreliable portions of Veronica’s statement 49 for a nonhearsay purposehas not been forfeited. To be sure, appellant’s principal purpose for admitting the statement in its entirety was to argue that Veronica’s useofthe first-person singular suggested that she had acted alone whenkilling Genny. An argumentthat Veronica’s obviouslies showedconsciousness of guilt was a secondary consideration. Yet, defense counsel argued that Veronica’s remarks showed consciousness of guilt. (90 RT 11173.) Although defense counsel was referring to the statementas a whole, it was patently obvious that appellant had nointention of using the exculpatory portion of Veronica’s statements for a hearsay purpose. Arguing that Genny drownedafter Veronica had innocently placed her in a | lukewarm bath could not have conflicted more with appellant’s theory of the case. Furthermore, because the forensic evidence clearly debunked Veronica’s drowning story, nobody in the courtroom believed that Veronica’s lies could possibly have been true. For these reasons,it strains credulity to suppose that appellant would have used Veronica’s exculpatory remarks for a hearsay purpose. Evenif appellant would have usedthe drowningstory only to put her admissions in context, that would also have been a nonhearsay purpose for using the evidence. The portion of Veronica’s remarksthat appellant sought to admit for the truth of the matter asserted wasatleast as reliable as the admissions appellantmade whenhewasinterrogated. The inculpatory portion has not been refuted. Veronica’s participation in burning Gennyin the bathtub was not disputed at either of appellant’s trials. On the other hand, appellant’s participation in the offense was very muchin dispute. The incongruity between respondent’s perception of appellant’s admissions, which respondentcontendsprovides indubitable evidence of appellant’s guilt, and Veronica’s analogous admissions, which respondent 50 deemstoo unreliable for a jury to hear, cannot be denied. Both were statements that contained a similar mix of exculpatory and inculpatory material. At the penalty retrial, appellant’s admissions formed one of two pillars upon which the prosecution relied to makeits case that appellant was a majorparticipant in the offense against Genny. Yet, Veronica’s statements madeat her apartmentshortly after the police arrived were deemedtoo unreliable to be admitted into evidence. The purposesof the hearsay rule and the spontaneous-statement exception were not advancedbythe exclusion of the evidence. There was no need to exclude the evidence to prevent the jury from finding unreliable hearsay credible because appellant did not seek to have the exculpatory lies admitted for the truth of the matter asserted, and the lies were so obviously false that no reasonable factfinder would have believed Veronica. Accordingly, the only bona fide basis for concluding that the inculpatory portion of Veronica’s remarks were unreliable is a determination that Veronica’s partly inculpatory, partly exculpatory remarks as a whole were so unreliable that the inculpatory excerpts should not be believed. Excluding evidenceofan allegedly unreliable partly inculpatory,partly exculpatory statement mightbe sensible if the trial court played the same gatekeepingrole forall partly inculpatory, partly exculpatory statements; in that event, all potentially unreliable out-of-court statements would be withheld from the jury if the people who madethe statements could not be cross-examined. But that is not the case here. Thetrial court admitted appellant’s mixed statement, but excluded Veronica’s. The purpose of the hearsay rule is to keep unreliable, un-cross-examined statements from the jury—notto give the prosecution a leg up over the defendant when attempting to present evidence of the defendant and alleged alternative 51 perpetrator, respectively. Moreover, it was improperfor the trial court to look to extrinsic evidence to determine that Veronica’s remarks were unreliable. The cases that respondentcites to refute appellant’s argumentfail to underminethis assertion. This Court’s holding in People v. Arias (1996) 13 Cal.4th 92, 150, that the hearsay declarant’s failure to confirm her spontaneous statement was immaterial showsthat extrinsic evidence ofunreliability has no bearing on whether a hearsay statement is admissible under the spontaneous-statementexception. In contending that Arias is inapposite becausethetrial court’s finding of unreliability was not based on a failure to confirm the statement, respondent puts forth an absurdly narrow reading ofArias. Theprinciple undergirding Arias, that extrinsic evidence is immaterial, still stands irrespective of the nature of the extrinsic evidence. Likewise, respondentfails in its effort to distinguish Peoplev. Sully (1991) 53 Cal.3d 1195, 1229 and People v. Farmer (1989) 47 Cal.3d 888, 906 becausethetrial court in those cases found the hearsay reliable. Appellant is arguing that the requirements for the spontaneous-statement exception | were metdespite the existence of extrinsic evidence of unreliability. The trial courts in Sully and Farmerreachinga different conclusion from the trial court in this case buttresses, rather than undermines, appellant’s argument. Those cases provide further precedential support for the principle that extrinsic evidence of unreliability is not material to determining whether a remark is admissible through the spontaneous- statement exception. Veronica’s hearsay statements were also admissible underthe statement-against-penal-interest exception. Respondent recognizes that Veronica was unavailable to be a witness at appellant’s trials. In addition, 52 the inculpatory portion of Veronica’s statement was against her penal interest. She admitted to putting Gennyin the bath that killed her. At her trial, the inculpatory portion of her statement would have been admissible because it was an admission that was probative toward her guilt. Veronica’s false drowning story was immediately debunked and could not be believed. The obviousfalsity of her exculpatory comments showsher consciousnessofguilt. The portion of the statement that appellant sought to admit for a hearsay purpose wasreliable. Veronica would not have admittedto putting Gennyin the bathtub if she had not burned Genny. In that respect, Veronica’s.remarks were similar to those in People v. Gordon (1990) 50 Cal.3d 1223, 1251-1253, in which this Court upheld the admission of a hearsay declarant’s statement that he gave medical care to perpetrators of a robbery-murder. Both statements had inculpatory and exculpatory elements. It was no more obviousthat the declarant in Gordon knew that he was admitting to being an accessory than Veronica knewthatstating she put Gennyin the bath was subjecting herself to criminal culpability. It matterslittle that the declarant in Gordon “all but confessed”to being an accessory if the declarant was not familiar with this state’s accessory-after- the-fact law. Respondent’s reliance on People v. Geier (2007) 41 Cal.4th 555, 583-585, is misplaced. At no time has appellant asserted that the entire statementis true. Unlike in Geier, appellant did not seek to use most of the statement for a hearsay purpose. The inculpatory portion of her remarks—the only segmentthat appellant soughtto introduce for a hearsay purpose—wasreliable. Veronica would not have placed herselfas the central figure of her hastily made, obviously false story unless she wasthe 53 person whohad perpetrated the actual offense. Asit was with respect to the spontaneous-statement exception, lookingat the entire statementfor reliability in this case makeslittle sense. All the parties have agreed that the drowning story was false. Based on that and the utter lack of evidence to support the drowningstory, there was no risk of the jury crediting the false story. Appellant sought to admit for a hearsay purpose only the inculpatory portion of the statement. Consequently, asking if the entire statementis reliable is posing the wrong question. Requiring the statement as a wholeto bereliable created an imbalance between admissions and statements against penalinterest at severed trials. Despite the transparentfalsity of the exculpatory portion of Veronica’s remarks, the prosecution was able to use Veronica’s statement againstherat hertrial, but appellant could not use it for his penalty-phase relative-culpability case. Lastly, the evidence was admissible under the catch-all exception to the hearsay rule. The inculpatory portion of the statement was reliable, and that was the only portion that appellant sought to admit for a hearsay purpose. As explained above,the unreliability of the false story is immaterial; all parties agreed the drowning story wasnottrue. B. The Exclusion of the Evidence Violated Appellant’s Constitutional Rights Thetrial court’s state-law error had constitutional dimensions. Barring the evidence infringed appellant’s right to present relevant mitigating evidence. (See Skipper v. South Carolina, supra, 476 U.S.at p. 7.) The proffered evidence pertainedto relative culpability; the inculpatory portion of Veronica’s remarks suggested that she alone burned Gennyin the 54 bathtub. Evenif the statements as a whole were unreliable, the admissions—the evidence appellant sought to admit for a hearsay purpose—werereliable. Accordingly, the trial court’s ruling was Skipper errorperse. Furthermore, excluding the evidenceinfringed appellant’s right to present a penalty-phase defense. Relative culpability was crucialto appellant’s penalty-phase defense. Veronica’suse ofthe first-person singular is among the strongest items of evidence that supported appellant’s position that Veronica was the primary perpetrator. On the otherside of the rights-to-a-defense balancing test, the integrity of the adversarial process also favored admitting the evidence. It was unfair for the trial court to admit appellant’s admissions but exclude Veronica’s admissions. Moreover, the obviousfalsity of the exculpatory segments of Veronica’s remarks prevented the jury from erroneously overestimating the reliability of the hearsay. The jury would have been well-aware that the majority of Veronica’s statements were exculpatory lies, and the jury would have been free to infer that the false, exculpatory portions of her remarks rendered the inculpatory portions incredible. On the other hand, the jury would also have been entitled to make a reasonable inference that Veronica’s inculpatory remarks were indeed true. Indeed, the jury had the opportunity to makethat sort of determination with respect to appellant’s admissions. The imbalancein the court’s rulings regarding appellant’s and Veronica’s admissions violated appellant’s due-processrights. Respondent’s argumentthat each item of evidence must be analyzed onits own contradicts a key basis for the trial court’s exclusion ofthe evidence of disciplinary techniques used in Veronica’s family of origin—thetrial court’s fear that admitting the evidence of disciplinary techniquesat 55 appellant’s trial but not Veronica’s would deny the prosecutionits purported rightto a fair trial. Furthermore, the prosecutor took inconsistent positions regarding the admissibility of the evidence betweenthe twotrials. (90 RT 11170-11171.) At the guilt phase ofthefirst trial, Veronica’s remarks were competent evidence to show an alleged co-conspirator’s consciousnessofguilt, but at the penalty retrial the prosecution argued that her statements were not competent evidence for appellant to show that the co-defendant, based on her admissions and her consciousness of guilt, was the primary perpetrator. Due to the prosecution’s use of inconsistent positions, the court should have estopped the prosecutor from seeking to exclude the evidence. (See In re Sakarias (2005) 35 Cal.4th 140, 156-160; United States v, Bagley (9th Cir. 1985) 772 F.2d 482, 489.) Moreover, the exclusion of the evidence violated appellant’s right to a fair and reliable capital-sentencing determination. Asa result of the trial court’s ruling, key mitigating evidence was withheld from the jury. That skewedthe jury’s weighing process. Similarly, the exclusion of the evidence infringed appellant’s right to rebut the prosecution’s aggravating | evidence. The prosecution soughtto show that appellant was a major participantin the offense. Appellant’s admissions formed one of two bases for the prosecution’s argument. Excluding Veronica’s remarks hamstrung appellant’s ability to rebut that evidence. C. The Death Sentence Must Be Vacated The exclusion of Veronica’s remarksto the police officers at the penalty retrial was prejudicial. As explained above, Veronica’s admissions were reliable andthe retrial jury could reasonably have found them credible. As a result of the court’s ruling, the penalty-retrial jury did not hear any evidence of Veronica making any admissions. Veronica’s inculpatory 56 statements to Sergeant Bennett and Officer Collum comprised the most significant defense evidence that was admitted atthefirst trial, but not the second. Their inadmissibility at the penalty retrial may explain why the retrial jury, but not the first jury, unanimously agreed that appellant should receive a death sentence. If Veronica’s crime-scene admissions had been introducedat the penalty retrial, there is a reasonable possibility that the retrial jury would not have reached a death verdict. (See People v. Brown, supra, 46 Cal.3d at p. 448.) At a minimum,respondent cannot demonstrate that the erroneous exclusion of the evidence was harmless beyond a reasonable doubt. (See Chapmanv. California, supra, 386 U.S. at p. 24.) Respondent’s argumentthat the jury would have discredited all of Veronica’s remarksasself-serving lies flatly contradicts its approach to appellant’s admissions, which, according to the prosecution’s theory of the case, comprised a major componentof the purportedly overwhelming evidence of appellant’s participation and deathworthiness. In its response to this appellate claim, respondent argues that Veronica’s admissions lacked probative value because appellant admitted to turning on the bathtub. (RB 88.) There is no bonafide basis for cloaking appellant’s admissions with an aura of authenticity while foreclosing the possibility that the jury would have found Veronica’s admissions credible. Both appellant and Veronica made admissions that were contained in larger statements that were, on balance, exculpatory. Treating the former, but notthelatter, as the gospelis inappropriate for harmless-error analysis. Finally, this was a close case. (See ante, at p. 36.) Thatthefirst jury hungat the penalty phase, at which Veronica’s crime-scene admissions were entered into evidence, undermines appellant’s assertions that the combination of appellant’s deathworthiness and the weakness of Veronica’s 57 admissions caused the erroneous exclusion of Veronica’s admissions t o be harmless. This Court must vacate the death sentence. 58 IV. THE EXCLUSION OF APPELLANT’S CHILDREN FROM THE COURTROOM WAS ERRONEOUS ANDA VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHTS Whenthe trial court barred appellant from having his four youngest children be demonstrative exhibits, the trial court erred and infringed appellant’s constitutional rights to present mitigating evidence and have a penalty-phase defense. The court then violated appellant’s constitutional right to a public trial when it excluded the children from the courtroom and, for the penalty retrial, the entire courthouse. A. The Court Erred by Excluding the Evidence As exhibits, the children constituted relevant demonstrative evidence. Appellant’s young children being damagedby a death sentence wasevidenceofappellant’s character. Although this Court has limited the admissibility of execution-impact evidence to evidencethatrelates to a capital defendant’s character (see People v. Ochoa (1998) 19 Cal.4th 353, . 456), the proffered evidence was probative toward that purpose. Contrary to the respondent’s assertion, appellant’s argument doesnotrely on the premise that execution-impactis admissible for a purpose not mentionedin Lockett v. Ohio (1978) 438 U.S. 586, 604. Rather, appellant asserts that the proffered evidence was admissible because it relates to appellant’s character. Because execution-impact evidence regarding the children was admissible, demonstrative evidence of the children was also admissible. Litigants are permitted to present their evidence persuasively and forcefully. (See People v. Dykes (2009) 46 Cal.4th 731, 785.) Having the jury view the children would have vivified appellant’s execution-impact evidence and 59 ensuredthat the jury would not consider appellant’s four children to be mere abstractions. As respondentrecognizes,the trial court limited the form of the evidenceto be presented. That belies the court’s determination that the evidence wasirrelevant. If the evidence wasnotrelevant, testimony about and photosofthe children would have been inadmissible. The evidence, thus, was relevant. Moreover, the demonstrative evidence ofthe children also would have been relevantto show appellant’s background,specifically that he fathered and raised several children. Presenting the children as demonstrative evidence would have enlivened evidenceofappellant’s background as well. Indisputably, demonstrative evidence is admissible. Such evidence is routinely admitted attrials, including this one. Respondent’s attempts to distinguish the demonstrative-evidence precedents appellantcited in his opening brief come up short. (See RB 94.) Although appellant sought to prove different points from the proponents of the evidence in Peoplev. McClellan (1969) 71 Cal.2d 793, 802, People v. Richardson (1911) 161 Cal. 552, 561-562, and State v. Barden (N.C.2002) 572 S.E.2d 108, 131, the samelogic applies to this case. McClellan standsfor the proposition that a party maypresent vivid evidence despite the existence ofa less pictorial alternative to prove the sameitem. Richardson and Barden demonstrate that people can be used as demonstrative exhibits even if photographs or witnesses’ descriptions might suffice to convey similar information. It is immaterial that those precedents involved the prosecution seeking to elicit demonstrative evidence; precedents govern more than cases that share their narrow, specific facts. That is the foundationoflegal reasoningandthe basis of the developmentofthe common law over 60 centuries of Anglo-American jurisprudence. Likewise, respondent’s efforts to distinguish execution-impact evidence from victim-impact evidencefall flat.'* (See RB 94, fn. 16.) This Court has held that execution-impact evidence is admissible, so long asit reflects on the defendant’s character. (See People v. Ochoa, supra, 19 Cal.4th at p. 456.) Thetrial court in this case had already determined that evidence of how appellant’s execution would impact his four youngest children was admissible, relevant evidence. (65 RT 8325-8326.) The question,therefore, is limited to what form the evidence could have taken. Underthe law, the proponent of the evidence mayelect to present admissible evidence vividly. That includes using demonstrative evidence even if a witness’s testimony may suffice. For this reason,the trial court erred by limiting appellant’s relevant, appropriate execution-impact evidence to photographs and witness testimony. Furthermore, this Court should not uphold exclusion of the evidence under Evidence Code section 352. That was not the basis ofthe trial court’s ruling. In addition, the alleged prejudice to the prosecution from displaying appellant’s children before the jury has been overstated. Thetrial court’s '8 Respondent’s contention that appellant improperly cited cases that are still pending on appeal is unfounded. (See RB 94, fn. 16.) For informational purposes, appellant merely reported on rulings made bytrial courts. (AOB 131, fn. 51.) Appellant did not assert or imply that those evidentiary rulings had precedential value. Irrespective of how this Court rules on appeal, the proposition that appellant put forth—thattrial courts permitted the prosecution to display victims’ young children as victim- impact evidence in at least two capital cases—would be indisputablytrue. Thereis a difference between citing an unpublished case to announce the state of the law, whichis barred by the Rules of Court, and referring to cases pending on appealto report on what has happenedintrial courts. (See People v. Hill (1998) 17 Cal.4th 800, 847, fn. 9.) 61 subsequent remarks that the presence of appellant’s youngest children would have been manipulative were off-base. The trial court did not disapprove ofthe prosecutor’s rank appeals to the jurors’ emotions when he “reserved”a chair for Genny,yet, the court deemed appellant’s efforts to vivify his evidence as blackmail. Moreover,in its argumentthat excluding the children as demonstrative evidence was harmless error, respondent contendsthat photographsand testimony aboutthe four youngest children rendered the exclusion of the proffered evidence harmless. If thatis the case, then the admission ofthe demonstrative evidence also would not have beenparticularly damaging to the prosecution. In addition, the probative value ofthe proffered evidence has been understated. The trial court had already found that execution-impact evidence was sufficiently tied to appellant’s character to be admissible. The physical presenceofthe children hadpotentnarrative relevance. Respondentdoes not dispute that the excluded evidence would have told a powerful narrative. The admissibility of appellant’s four youngest children as demonstrative evidenceis the sametype of question trial courts routinely face when admitting crime-scene victim photos offered by the prosecution. Contrary to respondent’s assumption, the relevance of the proffered evidence has beenestablished and the admissibility question concernsthe propriety of the form of the proffered evidence. When appellant proffered this demonstrative evidence, the trial court asked the wrong question. In so doing, the trial court abusedits discretion. B. The Court’s Ruling Infringed Appellant’s Constitutional Rights Respondent’s argumentthat the exclusion ofthe demonstrative evidencedid not violate appellant’s constitutionalrights relies on a faulty 62 premise. As explained above,the trial court did not properly exclude the evidenceas irrelevant. Moreover, the exclusion of mitigating evidence would have been Skipper error per se even if the court’s ruling had complied with the Evidence Code. (See Skipper v. South Carolina, supra, 476 U.S. at p. 7.) C. The Court Had Neither the Authority Nor Substantial Evidence To Support the Exclusion of Appellant’s Children from the Courtroom Thetrial court had no powerto do a best-interests determination to exclude the children from the courtroom. The court was not acting as a juvenile court judge. Rather, the court’s duty was to protect the rights of appellant and the public. Respondentasserts that the court’s power to control its courtroom vested it with the authority to exclude appellant’s children. That is not correct. Thetrial court’s broad powerto control the courtroom and maintain order and security does not permit the court to exclude non-disruptive members of the audience. Under respondent’s reasoning, the court could use its inherent authority to exclude anybody for any reason. Surely, that is not the law. The dicta from People v. Hartman (1894) 103 Cal. 242, 245 that respondentcites does not providethe trial court with the absolute powerto exclude people. There must be a bonafide basis for the proper exclusion of someone from the courtroom. Underthe court’s powerto maintain order and security, the court may eject a disruptive person from the audience. (See Code of Civ. Proc. § 128, subd. (a)(1)-(5).) But, that powerdoesnotvestthe trial court with the authority to block the courthouse door capriciously to a memberofthe public. Accordingly, the court’s discretion to control its courtroom must be exercised soundly. Requiring 63 evidentiary support for the exclusion preventsarbitrariness. There was no allegation, assertion, or evidence that the presence of the children in the courtroom would haveinterfered with the “proper conduct ofthetrial.” (Hartman,at p. 245.) In any event, evenif the court had the authority to exclude the children in order protect what it deemedto bein their best interest,it lacked substantial evidence to support its ruling that it was in the children’s best interest to attend no part of their father’s capitaltrial.’ The court did not solicit any opinions on what would bein the children’s best interest. Unlike whenthe court ruled that Ivan Jr. and Michael were unavailable, the court had no evidentiary basis for its exclusion of the children. The trial court relied on nothing more than its gut feeling to determine that the children’s best interest required that they be excluded from theentire trial. In the absence ofany support,its ruling was an abuse ofdiscretion. D. Excluding Appellant’s Children from the Courtroom Violated Appellant’s Constitutional Right to a Public Trial By locking appellant’s four youngest children out of the courtroom, '? Respondentcontends that appellant lacks direct authority for the proposition that the court did not have to support its best-interests determination with factual findings. (RB 98.) To the contrary,the trial court’s duty is derived from multiple sources. Most fundamentally, the constitutional right to a public trial requires the trial court to make factual findings. (See Waller v. Georgia (1984) 467 US.39, 48.) In addition, understate law, a trial court’s best-interests determination must be supported by substantial evidence. (See In re Jasmon O. (1994) 8 Cal.4th 398, 423.) When a best-interests determination underminesa third-party’s rights, it is essential that the determination have evidentiary support. Moreover, requiring evidentiary support serves as a checkagainst arbitrary rulings. 64 and ultimately the courthouse,the trial court infringed appellant’s right to a public trial. Six decades ago, the United States Supreme Court wrote that “without exception all courts have held that an 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, 271- 272.) The court’s refusal to permit the children to attend any part oftheir father’s capital trial ran afoul of this principle. Respondent’s contention that the rationales for the public-trial right are inapplicable to the exclusion of appellant’s children also conflicts with Oliver. Moreover, the rationales respondent cites underminesits argument: The presence of appellant’s youngest children might have madethetrial court and prosecutor “keenly alive to their sense of their responsibility and to the importance oftheir functions.” (RB 98, quoting People v. Woodward (1992) 4 Cal.4th 376, 385.) Underthe factors that the United States Supreme Court delineated in Waller v. Georgia (1984) 467 U.S.39, 48, the courtroom should have stayed open to the children.” (AOB 142-144.) Respondent’s argument that the state had an overriding interest in excluding the children is improperly premised on the assumption that the children would have been present for the entire trial. At defense counsel’s suggestion, the children would only have seen their grandfather’s direct examination and would haveleft the courtroom prior to their grandfather’s testimony that he did not want appellant to be executed. The children would not have been damagedby hearing their paternal 20 Waller is applicable to the exclusion of appellant’s family members. (See Yung v. Walker (2nd Cir. 2003) 341 F.3d 104, 110-111.) 65 grandfather’s testimony reminiscing about their father. The defense offered a narrowlytailored alternative, and thetrial court rejectedit out of hand. Respondentclaimsthat appellant cited no case law requiring the trial court to managethe testimony of appellant’s grandfatherin order to accommodatethe children’s presence. Waller requirestrial courts to consider narrowlytailed alternatives to a courtroom-closure order; that is the authority upon whichappellantrelies. Notably, respondent makes no effort to articulate why the narrowly tailored alternative defense counsel suggested would not have fulfilled the state’s interest in protecting the children from harm. It is hard to fathom that avoiding a one-minute break in the trial to permit the children to leave the courtroom during their grandfather’s testimony constitutes a sufficient basis for excluding the children from the entire trial. Contrary to respondent’s contention, exclusion of the children was not narrowly tailored because only they were barred from the courtroom;it would eviscerate the right to a public trial if the trial court’s blanket ban on upto four relatives of the defendant could be deemed narrow.”! Lastly, the court made no findings, other than its bare assertion, to support the exclusion. The court needs evidence,rather than hunches,to justify excluding the children from the courtroom. Indeed,the court’s basis for excluding the children would have beennullified by the alternative that defense counsel suggested. Respondent’s assertion that the court made a particularized inquiry by excluding only the four children disregards Waller’s requirement that the court make factual findings. A 21 Undoubtedly, the exclusion of appellant’s entire family would have been a moresevere violation of appellant’s public-trial right. But, the existence of an irrational and more egregious hypothetical alternative exclusion does not render the trial court’s ruling narrow. 66 ruling is not a factual finding. The precedents that respondentcites in support of the exclusion order do not govern this case. The closing of the courtroom doors during the prosecutor’s closing argument in People v. Woodward, supra, 4 Cal.4th at pp. 379-385, which this Court upheld, involved a muchlesser imposition on the public-trial right than this case. In Woodward, the trial court prevented potential unplanned disruptions during the closing argument and did not exclude specific people from attending the trial. Similarly, the imposition on the public-trial right in People v. Holloway (2004) 33 Cal.4th 96, 147, in which the court excluded a defense investigator for crying during the trial, was less than in this case. In Holloway, the trial court determined that the investigator was being a disruptive spectator and ejected her on that basis. In contrast, the trial court made no factual findings supporting exclusion in this case, and the total exclusion of the four children from the courtroom did not prevent disruptions.” The cases from other jurisdictions that respondentcites as persuasive authority fail to undercut appellant’s argument. In Sobin v. United States | (D.C. 1992) 606 A.2d 1029, 1032-1033, the court upheld the exclusion of the defendant’s children during a sentencing proceeding because the court did not want the defendant’s children to hear abouttheir father’s crimes and 2 Tf the court had permitted the children to be presentfor only a part of appellant’s father’s direct examination, a short break would have been taken to permit the children to leave the courtroom. Respondent maylabel that brief recess a disruption. But, a planned short pause in a witness’s testimonyis quite different from an unanticipated disruption from a spectator. The narrowly tailored alternative proffered by appellant would not have been disruptive. A minor inconvenience that would have protected appellant’s right to a public trial should not be equated with a disruption. 67 see their father get taken away to be imprisoned. Unlikein this case, defense counsel did not propose a narrowlytailored alternative to total exclusion. Thus, the state’s interests could have been met only by complete exclusion. In McConnaughey v. United States (D.C. 2002) 804 A.2d 334, 341, the District of Columbia Court of Appeals upheld the exclusion of children at the trial without analyzing the factors the United States Supreme Court delineated in Waller v. Georgia, supra. The McConnaughey court’s conclusionthat excluding children from the courtroom does not implicate the Sixth Amendmentfailed to follow Jn re Oliver and Waller v. Georgia. Those two cases demonstrate the excluding a defendant’s relatives potentially violates the public-trial right and that the exclusion of children must be analyzed under the Waller factors. (See Yung v. Walker (2nd Cir. 2003) 341 F.3d 104, 110-111.) Excluding appellant’s children from the entire trial was not a de minimus imposition on appellant’s public-trial right that should be automatically upheld. A Waller analysis must be done, and the Waller factors reveal that appellant’s public-trial right was violated. (AOB 142-144.) The two United States Court of Appeals casesthat respondentcites were decided prior to Waller; as a result of their obsolete analyses, those precedents havelittle persuasive authority. Moreover, respondentcites no precedents in which the trial court rejected a viable narrowly tailored alternative that defense counsel had suggested. Aside from stating that no precedent has requireda trial court to take a short recess to accommodate both the defendant’s right to a public trial and noting the state’s interest in ensuring that a defendant’s children do not heartestimony that could damage them psychologically, respondent offers no rationale forthe trial court’s refusal to permit appellant’s four youngest children to attendthetrial for the benign portions of their paternal 68 grandfather’s testimony. The alternative to total closure that appellant’s trial counsel suggested would have obliterated the rationale for excluding the children from the courtroom for the entire trial. It was much less broad than the trial court’s absolute bar. This narrowly tailored alternative would have created a win-win situation for the state’s interests and appellant’s right to a public trial. Under Waller, the trial court’s refusal to permit appellant’s children to attend any portion of appellant’s trial infringed appellant’s rights to a publictrial. E. The Death Judgment Must Be Vacated Thetrial court’s denial of appellant’s public-trial rights constituted structural error. (See Waller v. Georgia, supra, 467 U.S. at pp. 49-50.) Therefore, reversal is automatic. This Court should vacate the death judgment evenif appellant’s public-trial rights were not infringed. The trial court’s refusal to permit appellant’s children to be demonstrative exhibits was prejudicialerror. The exclusion of the evidence weakened appellant’s mitigating case with respect to his character. Although the jury knew that appellant had six children, mere photos and testimony did not conveythat information as vividly or powerfully as the children’s presence as demonstrative exhibits would have. In Barnes v. State (Ga. 1998) 496 S.E.2d 674, 689, the Georgia Supreme Court wrote “the photographsof[the capital defendant’s children] show that heis a father in a way that no amountof testimony could duplicate.” Likewise, photographs and testimony could not have duplicated the presence of the children in the courtroom as demonstrative exhibits. Although photos were excluded in Barnes and admitted in this case, the rationale underlying Barnes applies in this case: Requiring a defendantto sanitize otherwise admissible execution-impact evidenceis 69 prejudicial error.’ Contrary to respondent’s claims, the superficial distinctions between this case and Barnes do not rob Barnesofits persuasive power. Furthermore,this was a close caseat the penalty phase. (See ante, at p. 36.) Consequently, a penalty-phase error in this case need not have been major in order to have created a reasonable possibility of a different outcome. Finally, respondent cannot show thatthe denial of federal constitutional rights from excluding the evidence was harmless. 23 The Barnes court foundthat the exclusion of the defendant’s children’s photosplus two other items pertaining to the defendant’s character constituted prejudicial error. (Barnesv. State, supra, 496 S.E.2d at p. 689.) Like Barnes,the limitations on evidence of appellant’s children wasnotthe only significant defense evidence excludedat the penalty retrial. The cumulative impactof the penalty-phase evidentiary bars is an additional basis for reversing the death sentencein this case. (See Claims I-V, XX.) 70 V. THE EXCLUSION OF APPELLANT’S MITIGATING EVIDENCE VIOLATED THE EVIDENCE CODE AND APPELLANT’S CONSTITUTIONAL RIGHTS In addition to the evidence discussed in Claims I through IV,thetrial court excluded several other clusters of mitigating evidenceat the penalty retrial. That was state-law and constitutionalerror. A. The Court Erred by Excluding the Evidence Thetrial court erroneously excluded relevant, admissible mitigating evidence. The excluded evidence pertaining to the impact of Ivan Jr. testifying as a prosecution witness at the preliminary hearing and having that testimony admitted at the guilt phase ofthefirst trial pertainedto appellant’s character. Therole Ivan Jr. played in providing evidence that led to his father getting convicted and found death-eligible was probative toward the impactthat appellant’s execution would have on Ivan Jr. As explained in Claim IV, execution-impact evidence is admissible to the extent that it reflects on appellant’s character. (See People v. Ochoa, supra, 19 Cal.4th at p. 456.) There was a nexus between Ivan Jr.’s role in the proceedings and appellant’s character: The impact on Ivan Jr. would be enhanced by havingtestified, and the extent ofthe impact would be proportional to appellant’s character. (AOB 149-150.) Respondent’s concernsof the proffered evidence being confusing and time consuming could have been addressed by admitting only a sanitized synopsis of Ivan Jr.’s testimony. The excluded evidence of appellant’s family background wasalso relevant and admissible. Evidence of a capital defendant’s backgroundis paradigmatic mitigating evidence. (See Lockett v. Ohio (1978) 438 U.S. 71 586, 604.) The background ofa capital defendant’s family falls within the rubric of mitigating evidence of a capital defendant’s background. (Wiggins v. Smith (2003) 539 U.S. 510, 523-525.) Contrary to respondent’s suggestion, the family history that predated appellant’s birth reflected onhis background and character and constituted relevant mitigating evidence. (See American Bar Assoc., Guidelinesfor the Appointment and Performance ofDefense Counselin Death Penalty Cases (2003) 31 Hofstra L. Rev. 913, 1061 [explaining that capital defendant’s social history begins before conception].) Furthermore,the trial court’s ruling on the scope ofrebuttal regarding evidence of appellant’s evenhanded treatment of Anthony, who was sired from Veronica’s affair with her cousin, was overbroad. Not singling out a child for mistreatmentis not evidence of good fatherhood;it merely constitutes evidence that appellant does not tend to single children out for mistreatment even when provided with a motive to mistreat someone. Defense counsel wasnot going to attempt to imply that the evidence showedthat appellant was a goodfather. If defense counsel broke that pledge,the trial court could have reopened the prosecution’s rebuttal case to permit the prosecutorto elicit evidence that appellant was not a good father. Lastly, appellant’s mother’s opinion of Veronica wasrelevant to the substantial-domination mitigating factor. Belia Gonzales’s opinion of Veronica stemmed from her observations of Veronica and appellant’s relationship with Veronica. The dynamicsofthe relationship would have revealed the capacity for Veronica to dominate appellant. Excluding that 72 evidence waserror.’ B. The Evidentiary Rulings Violated Appellant’s Constitutional Rights In addition to committing state-law error, the trial court’s rulings barring the evidence violated appellant’s constitutional rights to present mitigating evidence, rebut aggravating evidence, and havea fair and reliable capital-sentencing proceeding. The exclusion of relevant mitigating evidence was Skippererror per se. (See Skipper v. South Carolina, supra, 476 U.S.at p. 7.) C. The Errors Were Prejudicial Becausethis was a close case(see ante, at p. 36), it is reasonably probable that the excluded evidence could havetipped the balanceagainst a death sentence. (See People v. Brown, supra, 46 Cal.3d at p. 448.) Respondent’s argumentthat the error was not prejudicial because Genny wastortured fails to consider that evidence of appellant’s participation was hotly disputed and the overwhelming-evidencetest is inappropriate for penalty-phase errors. Accordingly, respondent cannot demonstrate that the exclusion of the mitigating evidence was harmless beyond a reasonable doubt. (See Chapman vy. California, supra, 386 U.S.at p. 24.) *4 Contrary to respondent’s assertion, appellant has articulated the nexus between this evidence and the substantial-domination mitigating factor. 73 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 Respondentpresents arguments that are flawed in several respects regarding jurors’ statements that the jury did not unanimously find that appellant harbored anintentto kill. Contrary to what respondent argues, a death verdict unsupported by a finding of each elementof the special circumstance beyond a reasonable doubtviolated appellant’s constitutional rights. Appellant requests that the torture-murder special-circumstance finding be vacated anda new special circumstance trial be held; alternatively, he requests that this Court find the key portions ofjurors’ statements admissible under Evidence Code section 1150 and remand on the new-trial motion. A. Respondent’s Interpretation of Juror Statements Is Deficient Respondentselectively interprets the juror statements and reaches the unfounded conclusionthat the jury legitimately foundintentto kill. However, this interpretation ignores the explicit statements of several juror s that the jury, despite finding the special circumstance, did not find that appellant had intendedto kill Genny. Thus, there was competent evidence in the trial record that the jury did notdeliberate on or find an essential element ofthe sole special circumstance that rendered appellant death- eligible. The evidence would have provided groundsforthe trial court to grant appellant’s new-trial motion. 74 The prosecution attempts to gloss over these statements by pointing out that the jurors said they did not have any “problems” with the intent-to- kill issue, or that one juror “believed” the legal definition of intentto kill to be satisfied. (RB 117, 120.) However, because jurors also stated that they found that appellant lacked intentto kill, the legal definition of the special circumstance wasnot in fact satisfied, regardless of whether some jurors also “believed” they had followed their instructions. Respondent contends that the jury made the necessary finding of intent to kill (RB 125); however, this argumentis explicitly contradicted in numerousjuror affidavits.2> Even if some jurors did believe appellant harbored intentto kill, it remains that several of the jurors did not make such a finding, and so the special- circumstance finding was not supported by a unanimousfinding of each of the essential elements. Similarly, respondent points out that during jury deliberations some of the wordsin the jury instructions were underlined, including the phrase “intent to kill” (RB 118); however, if in fact the jury did not find that *> Respondentpoints out that when polled by the prosecution on whether the murder of Genny “wasintentional and involvedthe infliction of torture,” the jury said “yes” (RB 125); however, this supposed affirmation does not dispose of the problem of whether appellant had specific intent to kill. The jurors could have been referring to general intent, and may have conflated murder by torture with the torture-murder special circumstance. It is also noteworthy that the question respondent posed wasin the passive tense: The phrase “was intentional” does not indicate the agent of the action; moreover, the jury instructions did not say appellant himself had to harborspecific intent to kill. In this particular case, Veronica Gonzales could have intendedto kill while appellant lacked intent to kill. Therefore, even if the jury found the murder “wasintentional,” it does not dispose of the issue that several jurors did not find that appellant himself harbored the specific intent to kill. 75 appellant hadintentto kill but found the special circumstancetrue nevertheless, it matterslittle what the jury underlined during deliberations. It remainsthat the jury did not unanimouslyfind that appellant had the requisite intent that would make him death-eligible—a fact that respondent does not attempt to rebutin its brief. On the whole, juror statements made to the judge andin subsequent declarations showed at the least that the death verdict was not unanimously based on finding of each elementofthe special circumstance beyond a reasonable doubt. Even judgedin thelight most favorable to respondent, the juror statements indicate that the death verdict is fundamentally unsound. Evenif respondent’s interpretation of the juror statementsis valid, all it would tend to showisthat the jury did not deliberately refuse to apply the law. However, evenifit is the case that the jury arrived ata faulty verdict by accident, the result is the same and equally grievousas would be in the case of outrightnullification:”° the California criminaljustice system | would execute a man whoislegally ineligible for the death penalty. This — Court is respectfully urged to vacate the special-circumstance finding and death judgment. 26 Although jury nullification is often considered to be the deliberate and knowing acquittal of a criminal defendant by jurors’ refusal to apply the law asit is given to them, the concept is equally applicable to the conviction of a defendantcontrary to the law. (See Summer v. Shuman (1987) 483 U.S. 66, 85 fn. 13 [referring to “undeserved convictions for capital murder” as “anotherjury nullification problem”]; see also People v. Williams (2001) Cal.4th 441, 451, fn. 6 [a verdict based on jury nullification to the defendant’s detriment should be vacated].) 76 B. The Trial Court Erred in Denying Appellant’s New-Trial Motion Based on the Jury Not Deliberating on or Finding the Intent-to-Kill Element of the Special Circumstance. Dueto the jury’s dereliction ofits duties, this claim should be renewed de novo. Respondent misstates the proper standard of review for this claim. In general, a court does review a new-trial motion for abuse of discretion (see, e.g., People v. Williams (1988) 45 Cal.3d 1268, 1318); however, the standard of review for the denial of a new-trial motion based on purported juror misconduct is de novo. Asthis Court explained in People v. Ault (2004) 33 Cal.4th 1250, this Court held in People v. Nesler (1997) 16 Cal.4th 561 that “when a criminal defendant appeals the denial of his or her motion for a new trial on groundsof prejudicial juror misconduct,” the standard of review is de novo, whereas when the prosecution appeals the granting of a newtrial on groundsofjuror misconduct, the standard of review is abuse ofdiscretion. (Ault, at p. 1255, originalitalics; see also People v. Wisely (1990) 224 Cal.App.3d 939, 947.) Respondent would have us infer from a portion of People v. Carter | (2005) 36 Cal.4th 1114, 1210 that the standard of review for this case should be abuse of discretion. (RB 122, fn. 20.) However, any inference respondent attempts to draw from the Court’s statementin Carteris explicitly precluded by the holding in People v. Nesler, supra, 16 Cal.4th at 561, as explained in People v. Ault, supra, 33 Cal.4th at 1255. Appellantis appealing the trial court’s denial of his motion for a newtrial on grounds of jury misconduct, whichis precisely the situation contemplated in Nesler. Thus, the proper standard of review for this Court is de novo. Furthermore, respondent unduly limits the scope of appellant’s claim with regard to the issue ofjuror statements. A jury’s issuing a death verdict 77 without having found unanimously that appellant harbored specific intent to kill should be considered misconduct; however,it also implicates larger due-process considerations andcalls into question the fundamental soundness ofthe verdict. Upholding such an unsubstantiated death verdict would amountto an arbitrary death verdict in violation of appellant’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights. As such, the conduct engaged in by the jury in this case should be considered misconduct,butit should also be examinedinlight of appellant’s right to be protected from an arbitrary finding of death-eligibility. The standard of review this Court undertakes in cases of an inadequate or unsupported verdict is de novo. (Cf. People v. Avila (2009) 46 Cal.4th 680, 701-702 [conducting an independent reviewofthe record in considering defendant’s challenge to the sufficiency of the evidence].) Accordingly,in either case, appellant’s claim should be reviewed de novo. Nevertheless, even under an abuse-of-discretion review,the trial court’s ruling in this case presents a “manifest and unmistakable abuse” because the court’s ruling of the statements as inadmissible andits denial of the new-trial motion resulted in an unsubstantiated death verdict. Furthermore, the trial court lacked discretion to commit legal error. (See, e.g., People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746.) In any event, whether this Court reviewsthe trial court’s order de novo or for an abuse ofdiscretion, this Court should vacate the special circumstance finding and order a new special-circumstancetrial. 1. The Juror Statements Are Admissible under Evidence Code Section 1150. Respondentdoesnotaddress appellant’s assertion that the juror statements refer to overt acts rather than the jury’s subjective reasoning 78 process. Respondent dismissesthis assertion as “erroneous,” but does not explain whythe juror statements in this case should be considered evidence of the jury’s subjective reasoning process. (RB 124.) Both law and logic indicate that the juror statements in this case refer to overt acts and not the subjective reasoning process. Accordingly, this Court should find that the juror statements were admissible under Evidence Codesection 1150. a. The Finding of an Individual Element of a Verdict Is an Overt Act Subject to Corroboration The juror declarations in this case are strikingly analogousto thosein Drust v. Drust (App. 2 Dist. 1980) 113 Cal.App.3d 1, where the Court of Appealheld that a finding of elements is an overt act. In Drust, the jury returned a verdict of over $1,400,000 in a personal-injury suit, and the defendant made a motion for a newtrial on the groundsthat the verdict was excessive. In support ofthe plaintiff's motion in opposition to the new-trial motion, counsel collected twelve juror affidavits that revealed how the jury reached its award. Amongotherthings, the affidavits revealed that the jury “incorrectly included inconsistent elements of damage”in its verdict. (/d. at p. 8.) The defendant sought to admit the juror affidavits under Evidence Code section 1150, and the court of appeal found they were admissible because although they “demonstrate how the jury must havearrived at the {verdict],” the declarations were “more susceptible of being interpreted as describing the overt act of awarding a particular sum for a particular element of damage.” (/d. at p. 9.) Based on those facts in the juror declarations, the Court of Appeal ordered a new damagestrial. The Drust court thus held that a finding of an individual elementis an overt act, the evidence of which not barred by section 1150; moreover, the court held that a finding of one elementthat is inconsistent with the 79 verdict as a wholeis grounds for ordering a newtrial on that issue?’ This holding is entirely applicable to the case at hand, where appellant seeks to admit juror statements revealing that one essential element of the special circumstance was not found and that this absence of a finding was inconsistent with the special-circumstancefinding as a whole. Because the Court of Appeal found that the juror declarations in Drust were “not only substantively permissible, but required as a matter ofjustice” due toa personal injury apparently being excessive (ibid.), this Court should similarly find admissible the juror declarations indicating that the finding of death-eligibility was unsubstantiated by a finding of each of the elements. In a $1,400,000 personalinjury suit, the stakes were high, but they were not life-and-death as they are here. Moreover, respondent does not address appellant’s reasoning that becausea finding of an element ofan offense, such as intent to kill, can be recordedas a special finding on a hybrid verdict form,it is an overt act subject to corroboration. Rather, respondent merely states that the “jury did make the necessary finding.” (RB 125.) Respondent’s reasoning merely begs the question posed, and does not dispute appellant’s position that a finding of each elementis an overt act undertaken bythe jury. In fact, the 27 Ferreira v. Quik Stop Markets, Inc. (1983) 141 Cal-App.3d 1023, 1035 purports to disagree with the outcome of Drust, but as the court in Ferreira explains, the two cases were quite dissimilar inasmuchas Ferreira presented juror statements that merely hypothesized other jurors’ subjective thinking process, not a finding of particular elements. Notably, the court also noted that the Ferreira verdict wasnot“internally inconsistent”as the verdict had been in Drust. Ibid.) Thus, the commentary in Ferreira does not diminish appellant’s assertion that the finding of an elementis an overt act admissible under section 1150 and thata logically unsupported verdict warrants a newtrial. 80 statements to the judge are quite similar to an element-not-present finding on a verdict form, and in this case we know that an essential element was found to be not present byat least some ofthe jurors. Accordingly, this finding of an element-not-present was an admissible overt act undersection 1150. b. The Absence of Discussion of a Material Element Is an Overt Act Subject to Corroboration Furthermore, this Court has found that the absence of discussion of a topic during jury deliberations is indeed admissible under Evidence Code section 1150. (People v. Ramos (2004) 34 Cal.4th 494, 518, fn. 7; see also, People v. Williams (2006) 40 Cal.4th 287, 335 [finding jury misconduct not to be prejudicial, in part because the jury did not discuss the biblical verses a juror had read aloud during deliberations].) In this case, this Court should find admissible the juror statements tending to show that the jury failed to deliberate on or discuss the issue of whether appellant harbored anintent to kill. Respondent contends that Ramos stands only for the proposition that. evidence of whether a juror read a newspaperarticle during deliberations is admissible. (RB 124-125.) That is an absurdly narrow interpretation of Ramos.® The holding in Ramos is entirely apposite to the case at hand: This Court held that evidence that the jurors never discussed a particular topic in the course of deliberations was admissible under section 1150. Thus, the absence of discussion, like the overt act of discussion, is an objective fact and as such is admissible under section 1150. The juror 8 This is far from the only instance in which respondentrefuses to acknowledgethat legal precedents are applicable to cases that do not share the precedents’ identical facts. (See ante, at pp. 60-61.) 81 statements in this case pertaining to whether the jury failed to deliberate on or discuss the issue ofintent to kill are therefore admissible under section 1150. c. The Juror Statements Were Not Evidence of the Jury’s Subjective Reasoning Process Furthermore, the case law interpreting Evidence Codesection 1150 indicates that the juror statements in this case are not evidence of the jury’s subjective reasoning process. In People v. Danks (2004) 32 Cal.4th 269, 300, one juror’s statements were inadmissible where she stated that she voted for the death penalty because “based on the evidence of Mr. Danks' past life and what his future life in prison [would be], he didn't have much to live for; Mr. Danks wanted the death penalty, and because other persons could not be safe around Mr. Danks.” Similarly, in People v. Steele (2002) 27 Cal.4th 1230, 1261, juror statements were inadmissible where they revealedthat the jurors voted for death verdict because they believed a life- without-parole sentence might allow the defendant eventually to be released. A juror in People v. Cox (1991) 53 Cal.3d 618, 696 told other jurors to vote for the death penalty because the defendant would be unlikely to be executed since the death penalty had not been exercised recently in California; the statement was inadmissible because it could only be used to explain the reason jurors voted for death. The juror statements in the present case are entirely dissimilar from those ruled to be inadmissible under Evidence Code section 1150. The statements in this case do not purport to explain the reasonsbehind a juror’s vote; rather, they revealthat the special-circumstance verdict was not supported by finding every element present beyond a reasonable doubt. 82 Respondent’s proposed reading of section 1150 would yield an absurd result. Respondent contendsthat virtually any evidence concerning jury proceedings is inadmissible as evidence of the subjective reasoning process. However, this proposed reading of section 1150 would categorically exclude far too manyincidents ofjuror misconduct and would, . in effect, vitiate the standard set up by section 1150, as interpreted by this Court. For example, it would bar evidenceofajuror reading the bible during deliberations, although that is quintessential evidence of misconduct. (See People v. Williams (2006) 40 Cal.4th 287, 333.) In sum, becausethe juror statements and declarationsin this case referred to overt acts and notto the subjective reasoning processofthe jurors,the trial court erred in ruling the evidence inadmissible, and erred in its denial of appellant’s new-trial motion. 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 Exclusion ofthe jurors’ statements did not advancethe goals Evidence Codesection 1150 is meant to achieve. Respondentfails to adequately address the contention that section 1150 was never meantto applyto the situation in this case where the verdict is fundamentally unsound, a. The Policies Undergirding Section 1150 Were Not Advanced by Excluding the Evidence Thethree rationales this Court has listed for section 1150 are to prevent fraud, juror harassment, and verdict instability. (Kollert v. Cundiff (1958) 50 Cal.2d 768, 773, overruled on other grounds by People v. 83 Hutchinson (1969) 71 Cal.2d 342.) Respondent does not argue that there is a nexus between excluding the statements in this case and preventing fraud, but claims that doing so would prevent the harassmentofjurors and instability of otherwise robust verdicts. However, the application of section 1150 in this case would not advance the purposesofthe rule, and it would result in a miscarriage ofjustice. Here, the jurors inadvertently revealed that the verdict was fundamentally unsound. Respondent contendsthatit does not matter “how the ball got rolling” with regard to the revelation that the verdict was unsound. (RB 127.) However, respondentproceeds to argue that admitting these statements in this case nevertheless would encourage juror harassment “by the losing side seeking to discover defects.” This indicates that respondent does recognize that how the information comes to light is significant. Respondent does not explain whythen it should not matter “how the ball got rolling” in this case, where the information cameto light by jurors’ spontaneous, voluntary statements to the court, not by harassment. In Drust, the goal of preventing juror harassment was inapplicable wherethe party seeking to admit the juror declarations did not initiate the inquiry. (Drust v. Drust, supra, 113 Cal.App.3d 1, 9.) Similarly, in this case there wasno juror harassment, andit is not plausible that admitting the declarations under section 1150 in this case would preventit in the future. With regardto the policy goal of preserving the stability ofjury verdicts, respondent contendsthat the length of time elapsed between the verdict and juror declarations is of no matter. However, the aim of preservingthe stability ofjury verdicts necessarily meansstability over the long run—section 1150 is meant to discourage parties from seeking to 84 undermine a verdict years down the road when jurors’ memoriesare faded. Respondent arguesthat the state has an interest in preserving even those jury verdicts where there is contemporaneous evidencethat they are unsound. To the contrary, this is not the end section 1150 seeks to achieve. Finally, respondent contendsthat this case “illustrates the importance _ of the policy prohibiting jurors from impeachingtheir verdicts.”” (RB 128.) Respondent’s inference that the two jurors’ recollections of the guilt-phase deliberations were colored by their positions at the penalty-phase deliberations cannot withstand scrutiny. There is no evidencethatthe jurors whospokewith the court favored life imprisonmentor the death penalty. Respondent’s suggestion to this effect is purely speculative and inconsistent with the evidence. In fact, the manner with whichthe jurors revealed to the court that they had not foundintentto kill was strikingly matter-of-fact, which would indicate that they did not have a disingenuous agenda when they spoke with the court. Respondent ignores the circumstances of the revelation, and claims contrary to the evidencein thetrial record that the jury unanimously found appellant harbored the specific intent to kill, and | that therefore the jurors speaking with the court must have soughtto undermine the verdict. (RB 128.) In so doing, respondent again begs the question. Notably, in the same paragraph respondent references three juror declarations that were not contradicted by prosecutor’s investigations, whichis patently inconsistent with respondent’s prior contention that each element of the special circumstance was found unanimously. (RB 128.) Thus,in light of the fact that the application of Evidence Code section 1150 in this case furthered noneofits policy goals, the trial court should have ruled the juror statements admissible. 85 b. Countervailing Policy Considerations Further Mandatethe Admissibility of the Jurors’ Statements and Declarations Respondent argues that Evidence Code section 1150 makesjury verdicts categorically inviolate. However,it is well-established that i n certain situations where two compelling policies compete,rules of evide nce must give way to advance otherpolicies that would be thwarted by mechanicalapplication of the evidence code. For example, Evidence Code section 1150 already has the well-established exception that evidence regarding jurors’ subjective thought processes must be admitted when it pertains to a purported racial bias on the part of the jurors. Theraci al- prejudice analogy showsthat section 1150 is not absolute. The fact that appellant’s claim does not involve racial prejudice does not undermi ne appellant’s argument. In the present case, the preference of upholdi ng troublesomejury verdicts must be weighed againstthe risk of a wrong ful execution. Respondent concedesthatthe state’s interest to uphold the death sentence does not extend to peopleineligible for the death penalty. ( RB 129.) Respondent presumesthat appellant is eligible for the death p enalty and that therefore appellant has not presented a compelling reason to ad mit the evidence. That argumentrelies on the faulty premise that the jury legitimately and unanimously found intent to kill, which is explicitly contradicted in numerous jury statements. (See discussion, ante at pp. 74- 76.) Despite finding true the special circumstance, the jury, by the admission of two jurors, never found that appellant intended to kill. Respondentfurther arguesthatthetrial court properly relied on this Court’s holding in People v. Romero (1982) 301 Cal.3d 685, 695 when it 86 ruled the juror statements inadmissible. However, Romerois inapposite because there were no substantial countervailing policy interests that demanded the admissibility ofjuror declarations in Romero. In fact, the competing policy considerations in Romero are the diametrical inverse of the competing policy considerations in this case. In Romero,if the evidence _ had been admitted it would have shown the jury found the defendantguilty of one charge of burglary and acquitted him of the second, whenthe jury meantto do the reverse—acquit the defendantofthe first and convict him of the second. Romero would havehad to serve his sentence for essentially the same crime of which he was meantto be convicted. On the other hand, admitting the evidence would have required him to be acquitted of both counts, as required by the principle of double jeopardy. Thescales tip differently in this case. Here, the competing considerations are ordering a newtrial on the special-circumstance issue, or else ordering an undeserved execution. Respondent does not disagree that these two scenarios are manifestly incomparable. Instead, respondent claims that Romerorightly dictated the outcomein this case because “no injustice would occur here” because the jury properly foundintentto kill. (RB 130.) This reasoning, prevalent in respondent’s brief, merely begs the question posed. Even if we were to take respondent’s interpretation of the juror statements at face value (see discussion, ante at pp. 74-76), it does not make the stakes in this case any less grave. This Court should find the statements admissible so it can determine whether appellant was ever found to be death-eligible in the first place. The differences between Romero and the present case are stark, and the trial court should not haverelied on Romeroto barthe jurors’ statements. 87 The risks of wrongful execution must not be downplayed. As the United States Supreme Court noted in Lankford v. Idaho (1991) 500 USS. 110, 125, fn. 21, the determination of death-eligibility in capital punishment requires heightenedreliability. In Eighth Amendmentjurisprudence,the finding of death-eligibility is the crucial finding. Underthis state’s capital- sentencingstatute, the finding of death-eligibility purportedly performs the constitutionally-mandated function of narrowing. (See, ¢.g., Zant v. Stephens (1983) 462 U.S. 862, 878.) This Court is urged to find that the risk of undeserved execution outweighs any interest the state may have in applying the evidence codeinthis case. 3. The Exclusion of the 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 Respondentfails to address virtually any of appellant’s constitutional claims. Respondentdenies that California should provide a constitutionally-based exception to section 1150 “in those cases where the jurors revealto the judge immediately after trial that an essential element underlying the defendant’s death-eligibility was never proven.” (RB 131- 132.) However, respondent’s merely explains that “the policy reasons underlying the rule do not depend on who initially spoke to the jurors” and, with that, finds appellant’s argument “unpersuasive.” (RB 132.) Respondent acknowledges there are two singular aspects to this issue that set it apart from other situations wherea party seeks to admit juror statements (RB 131-132): the existence of strong evidence that appellant was found to be death-eligible on a finding ofless than all of the required elements, and the fact that the jury spontaneously broughtthis to light in the 88 course of casual conversation with the court. Respondent only addresses the secondissue, dismissing it as all but irrelevant, and fails to address the issue of the jury’s finding othat an essential element was notpresent. Respondent thereby fails to address the fact that appellant’s most fundamental constitutional rights were violated by the exclusion of the juror . statements. With regard to the issue of how the information cametolight, . respondentclings to the same flawed reasoning it employed when responding to appellant’s contention that the policy goals of section 1150 would not be furthered by the rule’s application to this case. (See ante, at pp. 83-85.) As discussed, it is extraordinarily importantthat the jurors volunteered this information to the trial judge becauseit did not amountto a “fishing expedition” by a party seeking to invalidate the verdict, and it therefore did not involve the harassmentofjurors. With regard to the second issue, which respondentleaveslargely unaddressed, respondent seemsto disagree that an application of the Evidence Code could ever fail to pass constitutional muster. In so doing, | respondent disregards robust United States Supreme Court precedent. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578, 585-586 [the Eighth Amendmentrequired re-examination of death sentence where one factor weighed by the jury in aggravation waslater invalidated]; Green v. Georgia (1979), 442 U.S. 95, 97 [exclusion of testimony at sentencing phase based on Georgia’s Evidence Codeviolated the defendant’s Fourteenth Amendmentrights]; Chambers v. Mississippi (1973) 410 U.S. 284, 294 [evidentiary rules limited to the extent that they conflict with constitutional rights]; McDonald v. Pless (1915) 238 U.S. 264, 268-269 [jury statements must be admitted whenjustice so requires].) 89 In support ofits contention, respondentcites this Court’s holding in People v. Steele that Evidence Code section 1150 does not al ways violate a defendant’s constitutional rights. (People v. Steele, supra, 27 Cal.4th at p.1263.) However,it does not follow that an application of se ction 1150 could never deprive a defendantofhis or her constitutional rig hts. (RB 131.) Likewise, the United States Supreme Court holding in T anner v. United States (1987) 483 U.S. 107, 120-121 could not “preclud e” the conclusion that the application of an evidentiary rule violated a de fendant’s rights. (RB 131.) Indeed, this week the First Circuit held tha t a defendant’s due-process and impartial-jury rights trumped the federal analog t o section 1150 where hours after the jury reached a verdict, a juror reveal ed that jurors’ ethnic bias hadtainted the deliberations. (United States v. Villar (ist. Cir. 2009) F.3d ___; 2009 WL 3738787, *8-*9.) Appellant does not argue that Evidence Code section 1150is faci ally unconstitutional. Rather, appellant argues that its application in th is case is unconstitutional and patently unjust, considering that excluding the evidenceprevents appellant from showing that he was not proper ly found tto be death-eligible. It is paramountin the American legal system th at in a criminalcase, the jury must unanimously decide that every eleme nt was proven beyond a reasonable doubt. (U.S. Const. Amends. VI, VII, X IV; CA Const. Art I, sections 7, 15, 16, 17; United States v. Gaudi n (1995) 515 U.S. 506, 510, quoted in United States v. Booker (2005) 543 US. 220; Apprendi v. New Jersey (2000) 530 U.S. 466, 476-477.) This consti tutional precept applies equally to criminal offenses and special circumstance s. (Ring v. Arizona (2002) 536 US.584, 609; Zant v. Stephens, supra, 462 U.S.at p. 878.) It is axiomatic that there must be heightenedreliabi lity in the capital-sentencing determination. (See Lankford v. Idaho, supra, 50 0 90 US.at p.125, fn. 21.) Moreover, Zanneris clearly distinct from the case at hand. In Tanner, a mail-fraud case, the trial court declined to order an evidentiary hearing that would have required jurors to testify whether membersof the jury had imbibed intoxicating substances during portions of the case. (Tanner v. United States, supra, 483 U.S. at p. 115.) The Court held that even if the evidence had shownthat someofthe jurors had drunk during the proceedings, there werestill sufficient safeguards presentthat protected the defendant’s rights in that case, such as the ability of the court to observe the jurors’ conduct in and around the courtroom. (/d. at p.126.) The Court balanced policy considerations to determine the importance of admitting the evidence ofjuror behavior. It did not, as respondentclaims, necessarily preclude the admission of evidencein all cases. Indeed, in the present case, appellant has significantly moreat stake: a bored or somewhat impaired jury during parts of a mail fraud case does not compare to an undeserved execution; and the policy rationale behind not requiring jurors to testify about their ownillicit drug or alcohol useis by no means comparable to barring evidence of a spontaneous statements madeto the court on the jurors’ owninitiative. Moreover, the safeguards cited by the Tanner Court are inapplicable to this case; if not for the jurors’ remarks, the trial court would have had no wayto know thatthe jury failed to find an essential element of the lone special circumstance. Significantly, it was those safeguards’ inability to uncover jurors’ ethnic bias that convinced the First Circuit this week to hold that the evidentiary bar on the deliberative process hadto yield to a defendant’s constitutional rights. (United States v. Villar, supra, 2009 WL 3738787, *8-*9.) Thus, Tanner cannot preclude admission of the evidence in this case, not only because the basis of 91 appellant’s claim differs, but also because the factors weighed by the Co urt in Tanner do not strike a comparable balance to those at stake in appellan t’s case. Finally, the juror statements and declarations in the present case were favorable and crucial evidenceto the defense, and as such must be admitted. . Respondent, again begging the question, does notaddressthis point a nd merely argues that because the statements were not critical evidence, they did not require admission. (RB 131-132.) This fallacious reasoning igno res the staggering consequencesofthe evidentiary ruling in this case—the trial court’s refusal to admit the evidence denied appellant competent evide nce in support of his new-trial motion, and the flawed special-circumstan ce verdict formed the sole predicate of appellant’s death-eligibility and subsequent death sentence. The evidence was thus favorable and cruc ial to the defense, and must have been admitted. C. The Jury’s Failure to Deliberate on or Find the Intent-to-Kill Element of the Torture-Murder Special Circumstance Demandsthat Appellant Be Given a New Trial Based on the statements madeto the court, the jury did notfind all of the essential elements pertaining to the torture-murder special circumst ance. The prosecutionfailed to submit any evidence that the jury as a whole found theintent-to-kill element. The prosecution’s declarations that so me jurors individually believed that appellant intendedto kill cannotrebut the evidencethat the jury did not unanimously find the element. A verdict of “true” cannot be presumed validif it is known that one of the essential elements was foundto be not present. The failure to find the intent-to-kill elementis structural error; thus, prejudice should be conclusively presum ed. A rebuttable presumption of prejudice used for run-of-the-mill miscondu ct 92 claimsis not appropriate for this grave error. Additionally, the jury finding the special circumstance without finding every elementor deliberating on a contested element constituted misconduct. Even if the declarations are inadmissible in their entirety, the statementsto the trial court by themselves established misconduct. The jury . failed to follow the court’s instructions. Respondentclaimsthat jurors “did not state they did not follow the law” (RB 132-133), but the jurors’ remarks to the trial court made manifest the jury’s failure to follow the instructions. Here, the blatant inconsistency of finding appellant lacked intentto kill while nevertheless finding him to be death-eligible illustrates that the law in this case was not followed. Finding the special circumstance without oneof the essential elements violated appellant’s Sixth, Eighth, and Fourteenth Amendment rights. (Ring v. Arizona, supra, 536 U.S. at p.609; Apprendi v. New Jersey, supra, 530 U.S. at pp.476-477; Zant v. Stephens, supra, 462 U.S.at p.878; In re Winship (1970) 397 U.S. 358, 360.) Likewise, the failure to deliberate on an elementof a special circumstance also violated appellant’s Sixth, | Eighth, and Fourteenth Amendmentrights. A new-trial motion should be granted for unfairtrials that violate a defendant’s due-process rights for issues that could not have beenraised earlierin the trial proceedings, or for violations of his rights that were intrinsic in the trial proceedings themselves. (People v. Mayorga (1985) 171 Cal.App.3d 929, 940; People v. Fosselman (1983) 33 Cal.3d 572, 582.) Granting appellant’s motion for a new trial was the proper remedy for this denial of appellant’s constitutional rights. Appellant is in the precarioussituation contemplated in Mayorga and Fosselman,and the denial of appellant’s new-trial motion was erroneous. Alternatively, if this 93 Court concludes that there is an issue of fact to be resolved with regard to the failure to find the intent-to-kill elementor the failure to delib erate, a remand onthe new-trial motion would be appropriate, as respondent ag rees. (RB 133.) However, respondent wrongly claims that appellant is only entitled to a new special-circumstancestrial if respondent is unable t o rebut the presumption of prejudice on remand. (RB 134.) A verdict thatis contrary to law should bevacated. (People v. Williams, supra, 25 Cal.4 th at p. 451, fn. 6.) It is within the power of this Court to vacate the special- circumstance finding and order a new trial on the issue, and appellan t respectfully urges this Court to do so in the interest of averting a wr ongful execution. 94 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 Prospective Juror No. 504 was not substantially impaired from serving on appellant’s capital jury. Although she opposed capital punishment, she was death-qualified. Thetrial court thereby violated appellant’s Eighth Amendmentrights by dismissing her. The only remedy is to vacate the death judgment. A. The Trial Court’s Dismissal of the Prospective Juror Was Not Supported By Substantial Evidence The prosecution did not demonstrate that Prospective Juror No. 504 wasnot qualified to serve on appellant’s retrial jury. The prospective juror repeatedly stated that she was open-minded regarding appellant’s sentence, would consider both sentencing options, and could impose a death sentence. She said she would follow the rule of law rather than her philosophical opposition to capital punishment. In short, she was a quintessential death- qualified prospective juror whostated that she wouldset aside her scruples against the death penalty and be an impartial juror. The prospective juror being unlikely to reach a death verdict did not disqualify her from serving on appellant’s capital jury. Respondent’s argumentthat it showed substantial impairment lacks precedential support. Several times, this Court has held that a prospective juror is death-qualified if she is unlikely to vote for a death verdict, so long as sheis willing to follow the court’s instructions, weigh the aggravating and mitigating factors, and determine whether death is the appropriate punishment. (See 95 People v. Stewart (2004) 33 Cal.4th 425, 447, People v. Heard (2003) 31 Cal.4th 946, 959-966; People v. Kaurish (1990) 52 Cal.3d 648, 699.) Respondent’s attemptto distinguish this case from the pertinent precedents begs the question. Respondentargues that those cases are distinguishable because the record showedthat the prospective jurors in those cases were death-qualified. But, appellant argues that the record in this case showsthat Prospective Juror No. 504 was death-qualified. He asserts that the prospective jurors in those cases were similar to the prospective juror in this case. Asserting that the erroneously dismissed prospective jurors in Stewart and Heard are different because they were death-qualified fails to undermine appellant’s claim that Prospective Juror No. 504 was death-qualified. Prospective Juror No. 504 was far more open toward voting for a death verdict than the properly excluded prospective jurors in Peoplev. Lancaster (2007) 41 Cal.4th 50, 79-80. Oneofthe excluded prospective jurors in Lancaster said that he would automatically vote for a life sentence. (Id. at p. 79.) The other prospective juror, when “asked if imposing death | would be ‘a realistic, practical possibility or only a very remote possibility that isn't very real,’” said that the possibility of voting for death was remote. (Id. at p. 80.) Prospective Juror No. 504 never demonstrated anything approachingthat level of reluctance to render a death verdict. There was substantial evidence of substantial impairment for the two prospective jurors in Lancaster; such evidence was lacking in this case. Appellant agrees with respondentthat for a prospective juror to be death-qualified, there must be a real possibility that she would vote for a death sentence; however, there was a bonafide possibility that Prospective Juror No. 504 would vote for a death verdict. She never stated or implied 96 that there was no morethan a theoretical possibility that she would vote for a death sentence. Respondent claimsthat the prospective juror revealed her substantial impairment was the prospective juror answering that there was a possibility, rather than a reasonable possibility, that she would vote for a death sentence. (RB 139.) It is preposterous to expect a prospective juror to utter the magic words of death-qualification that this Court has articulated in its precedents. Likewise,it is senseless to require a prospective juror to mimic all of the adjectives the trial court used in its question;real-life conversations are not so stilted. A comparison ofthe voir dire of Prospective Juror No. 504 and the voir dire of the second jurorin Lancaster showsthat the dismissed prospective juror in this case wastruly open to considering a death sentence. Despite respondent’s assertion, Prospective Juror No. 504 did not give conflicting answers that would provide substantial evidence of her inability to serve on appellant’s capital jury. Her answers were consistent and indicative ofa life-leaning juror who was philosophically opposed to the death penalty, but willing to engage in the weighing process andfairly | consider returning a death verdict. She indicated that she would have a higher-than-average threshold for imposing death, but she consistently stated that she would keep an open mind. (87 RT 10646-10650, 10700- 10702, 10718-10723.) Under respondent’s formulation (RB 139-140), a prospective juror whobelieves that the death penalty should be abolished butis willing to set those viewsaside and fairly engage in the weighing process has given inconsistent answers. That cannot be the law. If Prospective Juror No. 504 is deemedto have vacillated and this Court thereby grants limitless deferenceto the trial court’s determination of her state of mind, thentrial 97 courts could dismiss for cause virtually all scrupled prospecti ve jurors and never have those for-cause excusals reversed. Under Wither spoonv. Illinois (1968) 391 U.S. 510, 521 andits progeny, those pros pective jurors are death-qualified and cannot be dismissed with impunity . In any event, this Court must abandon its practice of giving ab solute deferenceto trial court’s evaluations of prospective jurors’ s tates of mind, becausethat extraordinary degree of deference afforded tri al courts conflicts with Gray v. Mississippi (1987) 481 U.S. 648, 65 3-69 and other United States Supreme Court precedents. This Court shoul d reconsider its prior rejection of this argument. (But see People v. Moon (2005) 37 Cal.4th 1, 14-15.) Respondent has overblown Prospective Juror No. 504’s purp orted preference not to discuss her views. She willingly answere d every question that was posed to her. Respondent’s argumentrests on her a nswering “Yes. I mind.”to the prospectorasking if she minded being asked a dditional questions. Whetherit was an attemptat humoror an honest ad mission of her discomfort with being in the hot seat, her remark had no d iscernable | impacton her voir dire. (87 RT 10721-10723.) She answere d the ten questions posed to her afterward similarly to how she answer edthe panoply of questions that preceded her remark. The prospective juror saying that she minded being asked questions provided no basis for concl uding that she was substantially impaired from following her oath and the law . In addition, substantial impairment cannot be inferred from the prospective juror saying she would need to hear more before kn owing whether she would override her moral objection to capital puni shment and give the prosecution a fair trial. She indicated that she would make her sentencing decision based on the evidence,not that she might not be an 98 unbiased juror. (97 RT 10720.) This open-mindedness is what we expect ofjurors. Furthermore, she explained that her repugnance to child abuse would temperher abstract opposition to the death penalty. (97 RT 10722- 10723.) In his opening brief, appellant argued that Prospective Juror No. 504’s concerns about the irreversibility of capital punishment, her uncle’s experiences with the criminal justice system, and her views on using prisoners in medical experiments were not bonafide bases for finding her substantially impaired from being a capital juror. (AOB 189-190.) Respondent,stating that the trial court did not dismiss the prospective juror for those reasons, implicitly agrees. Althougha prospective juror’s bias need not be proven with “unmistakable clarity” (People v. Martinez (2009) 47 Cal.4th 399, 425), the prosecution has the burden of demonstrating thata life-leaning juror should be dismissed for cause. (See Wainwright v. Witt (1985) 469 U.S. 412, 424.) Respondent did not show that Prospective Juror No. 504 wassubstantially impaired from following her oath and the law. Thetrial court infringed | appellant’s Eighth Amendmentrights by dismissing her for cause. B. 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.) Because the trial court erroneously ruled that Prospective Juror No. 504 was not death-qualified and dismissed her for cause, appellant’s death sentence must be reversed. 99 VIL. APPELLANT DID NOT VALIDLY WAIVE HIS RIGHT TO BE PRESENT AT 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 Atthe outset of bothtrials, the court forced appellant to choose between twoconstitutional rights: the right to be presentathis trial or the right not to be shackled. Appellant’s presenceat the introductory proceedings was conditioned on being shackledin full view of the prospective jurors. In the absence ofan on-the-record showing of a case- specific necessity to shackle appellant, the trial court abusedits discretion in requiring appellant to wear shackles if he exercised his constitutionalright to be present for the proceedingsin the jury lounge. Dueto the lack of case-specific necessity to shackle, it was unconstitutional to require appellant to decide whether to be shackled or whether to absent himself from a crucial stage of the proceedings. Becausethe trial court forced appellantto relinquish one ofhis constitutional rights, appellant’s purported waivers of his Sixth and Fourteenth Amendmentrights to be present were invalid. Moreover, the purported waivers were not in writing as required by Penal Code section 977, subdivision (b)(1); therefore, it was statutory error to have appellant absence from proceedings. These errors were prejudicial to appellant; thus, the conviction, special circumstance, and death sentence must be vacated. A. Appellant’s Purported Waivers of His Presence at the Proceedings in the Jury Lounge WereInvalid Because The Court Made Appellant Choose Between Two Constitutional Rights 100 A capital defendant may validly waive his presenceatcritical stages of the trial. (People v. Dickey (2005) 35 Cal.4th 884, 923.) However, appellant did not validly waive his rights to be present here, because the purported waivers were the product of an unlawful choice the court mandated appellant to make. Appellant’s purported waivers to be present were invalid because he hadto sacrifice either his right to be present and or his right not to be shackled. Thetrial court violated appellant’s constitutional rights by requiring him to choose betweenthose rights. Respondent states that appellant was not shackled. (RB 149.) That misses the point of appellant’s argument. Of course appellant was not shackled; appellant relinquished his right to be present at crucialtrial proceedingsin order to avoid being shackled in front of the jury. Respondent contendsthat the trial court properly exercised its discretion in requiring shackles for security purposes. (RB 149.) This is incorrect; the court did not exercise any case-specific discretion in its decision. The court decided to conduct the initial proceedings in the jury lounge rather than the courtroom because the courtroom would be unable to accommodateall the | prospective jurors. Although one or two extra marshals would be present in the jury lounge, the court stated that appellant would be required to be shackled if he were to be presentat the proceedings in the jury lounge. The court stated that most defendant’s relinquish their right to be present sothat prospective jurors would not see them in shackles. (35 RT 3723-3725.) The court never expressed a case-specific reason why appellant would need to be shackled in the jury lounge. “The imposition of physical restraints in the absence of a record showing violenceor a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.” (People v. Duran 101 (1976) 16 Cal.3d 282, 291.) This Court has long concludedthat shackling is permissible only if the defendant’s actions, not the venu e’s characteristics, create a “manifest need”for restraints and tha t the court must make an on-the-record determination that the defendant's nonconforming behavior requires shackling. (Id. at pp. 290-293 [finding trial court abused its discretion by shackling defendant without g iving reasonsonthe record and holding the mere fact that defendant was a state prison inmate and charged with a violent crime wasan insufficien t basis for shackling]; see also, People v. Burnett (1980) 111 Cal.App.3d. 6 61, 668 (holding that, absent someindication that defendant waslikely to become violent or would attempt to escape, there was no justificati on for restraint of defendant chargedwith first degree murder although only one b ailiff was available].) Whetherto shackle a defendant for security purposesfalls within the trial court’s discretion; however, this discretion and determin ation must be case-specific and shouldreflect particular concernsrelated to the defendant on trial. (Deck v. Missouri (2005) 544 U.S. 622, 633.) The court c annot | adopt a generalpolicy of imposing such restraints upon prison in mates charged with new offensesunless there is a showing of case-specifi c necessity on the record. (People v. Duran (1976) 16 Cal.3d 282, 29 3.) Here the court had a generalpolicy of shackling defendants when no tin the courtroom,as evidenced by the court’s statement that “most defenda nts relinquish their presence right so the prospective jurors do not see them in handcuffs and waist chains.” (35 RT 3723-3725.) Requiring all defe ndants to be shackled, without showing necessity for each defendant, is an abu se of the court’s discretion. There is no evidencein the record suggesting th at the trial court took into consideration appellant’s specific circumstances whenit 102 required him to be shackledin the jury lounge. Had the court appropriately considered whether appellant’s characteristics and behavior necessitated shackles, the court would not have - been ableto find justification to require restraints. Appellant has been consistently described as passive, meek, timid, nonviolent, quiet, shy, mild- mannered,polite, and respectful.” The recordalso indicates that appellant behaved flawlessly while incarcerated at the Central Detention Facility and the George Bailey Detention Facility: Appellant never received any rule violations, was quiet and usually kept to himself, and took bible study courses. (67 RT 8498, 8534-8537; 68 RT 8648-8650, 8657-8658; 95 RT 11897; 96 RT 12256-12260; 97 RT 12343-12344, 12348-12350.) That does not indicate a necessity to shackle; in fact, as the court acknowledged, there was no reasonto believe that appellant posed a security risk. (35 RT 3725.) Even if there had been something in the record to suggest the need to shackle, there is no justification for this determination laid out bythetrial court on the record. Because there was no case-specific necessity to shackle, it was therefore unconstitutional to require appellant to be shackled if he exercised his right to be present. Respondent contendsthat appellant accededto holding the introductory proceedingsin the jury lounge. (RB 149.) Appellant does not objectto the use of that location. Appellant objects to his absence from 9 51 RT 6140; 52 RT 6253, 6356; 56 RT 7050; 57 RT 7129, 7138, 7210, 7240, 7272; 60 RT 7705; 67 RT 8535, 8544-8546, 8564, 8571-8573, 8591, 8601-8604, 8612; 68 RT 8649-8650, 8658, 8747; 70 RT 8897-8898, 9010; 92 RT 11491; 95 RT 11993-11994, 12018-12020, 12042-12044; 96 RT 12123, 12162, 12179, 12232-12233, 12238, 12243-12244, 12249- 12250, 12277-12279, 12288, 12303; 97 RT 12343, 12357, 12360, 12365- 12366, 12414-12415, 12472-12473, 12480-12481. 103 those proceedings based on an unconstitutional choice he had to mak e. These proceedings constituted a critical stage of appellant’s trial f or many reasons. At these proceedingsthe prospective jurors formed theirfi rst impressionsofthe case. Appellant’s absence, unexplained and juxta posed against the serious charges he faced,likely affected the jury’s opinion of him. Appellant’s failure to object to the court’s determination to shackle him does not forfeit his claim now. Thetrial court was well-awar e that appellant opposed being shackled. (See Bundy v. Sierra Lumber Co. (1906) 149 Cal. 772, 776.) In People v. Givan, the defendant was sha ckled without on-the-record justification. (People v. Givan (1992) 4 Cal.App.4t h 1107, 1116-1117.) Despite the prosecution’s assertion that defense cou nsel failed to make a timely objection to the defendant’s shackles, the court f ound the issue preserved for appeal because the record reflected that defense counsel had requested the court not to prejudice the defendantby requirin g him to be shackled while hetestified. Similarly in this case, the record refl ects that appellant and defense counsel soughtto avoid being prejudiced attria l by | having potential jurors see him shackled; that is why appellant did not want to be presentin the jury lounge. Because there was neither a manifest need nor an on-the-record determination to shackle, it was unconstitutionalto require appellant to choose between the right to be presentorthe right to be free from shackl es. Appellant had a state-law entitlementnotto be shackled as well. (Peopl e v. Duran (1976) 16 Cal.3d 282, 290-29; Pen. Code, § 688.) The violation of appellant’s state-law guarantee to be free from shackling also infringe d appellant’s due-processrights under the Fourteenth Amendmentandar ticle I, sections 7 and 15. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346.) 104 In addition, appellant’s purported presence waivers were invalid because they violated Penal Code section 977. Appellant had a statutory right to be present that could only be waived in writing. (See Pen. Code, 977, subd. (b)(1).) Appellant’s purported oral waivers failed to meet the written-waiver requirement. Contrary to respondent’s argument (RB 152), this Court’s holdings that defendants have nostatutory presencerights for discussions of prospective jurors’ hardship excusals are inapposite. Respondentrelies on People v. Rogers (2006) 39 Cal.4th 826, 855-856, where the defendant was absent from unreported in-chambers conferences regarding jurors’ requests for hardship dismissals, and People v. Ervin (2000) 22 Cal.4th 48, 74, in which the defendant was absent while counsel discussed questionnaires. These two cases are fundamentally different than the case before us. Unlike Rogers and Ervin, the instant case concerns public trial proceedings in the jury lounge, a substitute location for the courtroom,that involved prospective jurors. Appellant’s presence would have benefitted him by allowing the prospective jurors to see him and form their first impression of him. B. Appellant Did Not Waive His Presence at the Hardship Voir Dire That TookPlacein the Courtroom The court exceeded the scope of appellant’s wavier whenit conducted hardship voir dire in the courtroom in his absence. Appellant purportedly waived his right to be present at proceedings that occurred in the jury lounge, where te court meetthe initial pool of prospective jurors. In the afternoon session, the court met in the courtroom with prospective jurors requesting to be excused for hardship. (RT 38:4044.) Becauseof the large numberofjurors requesting to be excused for hardship,this 105 proceeding continued to the following Mondayin the courtroom. (RT 39:4108-4156.) Appellant’s personal waiver was not intended for the whole day while the parties met the entire venire,as respondent contends. (RB 151.) Rather, it was for the proceedingsthat would be occurring in the jury lounge in order to avoid appearing before prospective jurors in shackles. Appellant’s counsel requested that he not be produced for the sessions so that he would notbesitting and waiting in the holding tank. (37 RT 4009.) That waiver, however, was not personal. Moreover, counsel’s purp orted waiver for the Friday afternoon proceedings did not imply a waiver for the proceedings on the ensuing Monday. Defense counsel not wanting appellantto sit in the holding tank all day had no bearing on whether appellant should be absent on the following Monday, whenall proceedings occurred in the courtroom. Respondentcontends that appellant’s absence from proceedings that occurred in the courtroom were the productof invited error. (RB 151.) This is incorrect for several reasons. First, in People v. Riel (2000) 22 Cal.4th 1153, 1214, the precedent on which respondentrelies, this Cou rt held that any error by the trial court was invited, because the error was requested by defendantandit could only have benefitted him. The doctrine of invited error is not invoked unless counselarticulates a tactical basis for her choice. (Peoplev. Graham (1969) 71 Cal.2d 303, 319.) “If defense counsel suggest or accedesto the erroneous instruction because of neglect or mistake we do not find ‘invited error’; only if counsel expresses a deliberate tactical purpose.”(/bid.) “Error is invited only if defense counsel affirmatively causes the error and makes ‘clearthat he acted for tactical reasonsandnotoutof ignorance or mistake’ or forgetfulness.” (People v. 106 Tapia (1994) 25 Cal.App.4th 984, 1030, quoting People v. Wickersham (1982) 32 Cal.3d 307, 330.) Defense counsel requested that appellant be absent so appellant would not haveto sit in a holding tank all day—notto gain a tactical advantage. Having appellant absent from these proceedingsdid not benefit him; rather, it harmed him. In these proceedings members ofthe jury began to form their first impressions of appellant and the case. Appellant’s absence was unexplained and,at the penalty retrial, unmentioned. Appellant’s absence was coupled with the severity of the allegations and at the penalty retrial with the convictions and special-circumstance finding, which was damagingto the jurors’ first impressions of him. Additionally, defense counsel cannotinvite this type of error because appellant has a personalright to be present that cannot be waived by counsel. In criminal matters, a party’s attorney has general authority to control the procedural aspects oflitigation. However, the attorney cannot bind the party to certain fundamental matters. (People v. Masterson (1994) 8 Cal.4th 965, 969.) “It is up to the defendant to decide such fundamental | matters as to whether to plead guilty, whether to waivethe rightto trial by jury, whether to waive the right to counsel, and whether to waive the right to be free from self-incrimination.” Jn re Horton (1991) 54 Cal.3d 82, 95.) The right to be present during trial proceedings is a fundamental matter to appellant. Asthe trial court acknowledged, the Sixth and Fourteenth Amendmentsandarticle I, sections 7 and 15 vested appellant with the right to be present at the proceedings that took place in the jury lounge (35 RT 3724-2725; see Kentucky v. Stincer (1987) 482 U.S. 730, 745), as well to _ the proceedings that took place in the courtroom. Theseinitial proceedings constituted a critical stage of both trials. Thus, appellant’s decision whether 107 to be at the proceedings was a fundamental matter to his case an d could not be waived by counsel. | C. Appellant’s Absences Were Prejudicial Because appellant was absentat the proceedings in which thejur y venire first arrived in court, the prospective jurors inevitably ca me away from those proceedings with the impression that appellant callo usly did not bother to show upat his own capitaltrial despite being accused o f committing dastardly deeds. Although appellant’s presence at su bsequent proceedings would have mitigated this misperception,the prosp ective jurors’ initial impression of appellant remained important becau se a first impression can neverbe undone. Respondent seems to argue that because the jury lounge was so crowded, the prospective jurors may not have noticed that appell ant was not there. (RB 153.) This is highly unlikely considering the prospec tive jurors were there to be potential jurors in appellant's murdercase. Hewa sthe “star of the show”andall potential jurors in the room would hav e wondered who he was and what he looked like. Respondent also contendst hatifthe | jury were to form an impression of the appellant as callous, it wo uld because ofthings he wascharged with, rather than for being absenc e from the proceedings. (RB 153.) Appellant agrees that the charges ma y have predisposed the jury against him, to be clear, appellant contends that the juxtaposition of the charges against appellant’s absence from the introductory proceedings created the damagingfirst impression. This was a close case, and the evidence against appellant was not overwhelming. (See ante, at pp. 33-34, 36.) Hadappellant been pre sent at initial proceedings,it is reasonably probable that the jury would not h ave found him guilty or found the torture-murder special circumstance. 108 Likewise,it is reasonably possible that the jury at the penalty retrial would not have sentenced appellant to death. At a minimum, respondent cannot demonstrate that the errors were harmless beyond a reasonable doubt. (See Chapmanv. California (1967) 386 U.S. 18, 24.) It is speculative for this Court to conclude that the jurors whosat on appellant’s trials would not have perceived appellant differently had he been present at the proceedings. Accordingly, the conviction, special circumstance, and death sentence must be vacated. 109 IX. THE TRIAL COURT ERRED AND INFRINGED APPELLANT’S CONFRONTATION-CLAUSE RIGHTS BY ADMITTING VIDEOTAPED PRELIMINARY HEARING TESTIMONY OF IVAN GONZALES,JR. While living in a confidential foster home prior to and during the preliminary hearing, Ivan Jr. experienced hallucinations, hadhis recollections and testimony influenced by others, and lied regularly. None ofthis information was knownto defense counselat the time of the preliminary hearing. Accordingly, defense counsel never had a meaningful opportunity to cross-examineIvan Jr. whenhetestified at the preliminary hearing. Consequently, the admission of Ivan Jr.’s preliminary hearing testimony at appellant’s first trial ran afoulofstate law and infringed appellant’s constitutionalrights. A. The Trial Court Erred By Admitting Ivan Jr.’s Preliminary Hearing Testimonyinto Evidence The preliminary hearing testimony should not have been admi tted because appellant did not have the opportunity for meaningful cross- examination, the court abused its inherent authority to protect children by denying live testimony but admitting prior testimony, and Iva n Jr. was not competentto serve as a witnessat the preliminary hearing. 1. Appellant Lacked a Meaningful Opportunity For Effective Cross-Examination Because He Lacked Crucial Information at the Preliminary Hearing Becauseappellant lacked a opportunity to cross-examine Ivan Jr . meaningfully, Ivan Jr.’s preliminary hearing testimony was inad missible under Evidence Code section 1291. Appellant was unable to acc ess Ivan Jr. or information regarding Ivan Jr. Asa result, he was unable to l earn crucial 110 information that would have been vital for cross-examination. During the preliminary hearing, the defense lacked knowledge of Ivan Jr.’s hallucinations and other symptomsofpost-traumatic stress disorder, improperinfluences onhis recollection and testimony, and his foster mother’s concern overhis proclivity to lie. If appellant had accessto this information, he would have been able to question Ivan Jr. in such a waythat would have undercut the credibility of the allegations Ivan Jr. made against him. Respondent incorrectly contends that appellant wishesto rely on events that occurredafter the preliminary hearing in orderto justify that appellant lacked crucial informationat the time of the hearing. There is evidenceof events prior to the preliminary hearing that would have been invaluable to appellant’s cross-examination of him. In addition, the reports of Ivan Jr.’s mental state that followed the preliminary hearing were relevant evidence of Ivan Jr.’s psychological well-being at the time of the preliminary hearing. Nothing in the record suggeststhat Ivan Jr.’s symptoms suddenly appeared forthe first time after the preliminary hearing. Rather they were manifestations of the same symptomshe had been experiencing prior to the hearing. Prior to the preliminary hearing, Ivan Jr. hadstated to his therapist that he sometimes saw double and that he thought it was his soul. (6 CT 1447.) Thatis significant because seeing hallucinationsorillusions is a symptom ofpost-traumatic stress disorder. (22 RT 1896; see generally American Psychiatric Association, Diagnostic and Statistical Manual ofMental Disorders (4th ed. Text Revision 2000), pp. 463-468.) Similarly, respondent’s contention that Ivan Jr. seeing double 111 provided no evidencethat Ivan Jr. experiencedillusions or hallucinations prior to the preliminary hearing does not withstand scrutiny. (RB 160.) Respondentfails to mention Ivan Jr.’s belief that he was also seeing his soul. The fact that Ivan Jr. was seeing double and seeing his soul demonstrates that he was experiencingillusions or hallucinations. Ivan Jr. may also have experiencing flashbacks and nightmares, which are additional symptomsofpost-traumatic stress disorder. Contrary to respondent’s claim disputing the nexus between Ivan Jr.’s post-traumatic stress syndrome and his credibility (RB 159), Ivan Jr.’s post-traumatic stress disorder symptomscast doubt on the accuracy of Iv an Jr.’s perceptions and recollections. A witness experiencing hallucination s pertains to his credibility. (See United States v. Society ofIndep. Gasoline Marketers ofAm.(4th Cir. 1979) 624 F.2d 461, 469 [finding abuse of discretion whena district court precluded evidencethat a witness was bei ng treated for mentalillness rendering him delusionalandhallucinatory]; Boggsv. Collins (7th Cir. 2000) 266 F.3d 724 [explaining that some cour ts have found confrontation clause violations when a witness’s mental condition was relevantto cast doubt on that witness’s ability to perceive or interpret the events in question.].) Had appellant been aware of Ivan Jr.’s illusions and or hallucinations, appellant could have cross-examined him regarding such matters. Appellant does not claim that IvanJr.’s nightmares and hallucinations becamethe sole source of his memory ofthe incident, as respondent contends. (RB 160.) Rather, appellant is arguing that the symptomsofpost-traumatic stress disorder impacted his memory ofthe incident and therebyaffected the veracity ofhis testimony. Mentalillness 112 or emotionalinstability of a witness can be relevant on the issue of credibility, and cross-examination on the subject can reveal the inaccuracies of a witness’s recollection. (See People v. Gurule (2002) 28 Cal.4th 557, 592.) In addition to having hallucinations, Ivan Jr.’s foster mother had spoken to him and questioned him about the case. (AOB 205.) At the time of the incident, Ivan Jr. was eight years old, an age during whicha child’s memories are susceptible to contamination. (See People v. Delaney (1921) 52 Cal.App. 765, 774 [explaining that a young child would undoubtedly hear his parents talk about the case and after hearing the repetition of supposedfacts the child would create a mental impression that has no objective reality in any actually existing fact].) Dr. Volcani testified at length regarding the connection between the influences on Ivan Jr.’s memories and perceptions and the unreliability of his testimony. (48 RT 5686-5748.) Together, the fact that his foster mother had spoken to him about the case and the fact that he was suffering from post-traumatic stress indicate that his recollection of the events may have beensoaltered or | contaminated that it casts doubt on the veracity of his testimony. Because appellant lacked this crucial information regarding Ivan Jr.’s post-traumatic stress symptomsandhis foster mother speaking to him regardingthe case, appellant was not allowed a meaningful opportunity to effectively cross- examine him. Respondent also contendsthat the case law appellant hascited to in his opening brief fails to support the claims presented because they are discovery cases. That is too narrow a reading of the precedents. The principle underlying the discovery-violation cases—nondisclosure of 113 material facts precludes effective cross-examination—isapplicable in th is case. (See People v. Mackey (1985) 176 Cal.App.3d 177, 185 [holdin g defendantwasunableto effectively cross-examine witness during preliminary hearing because prosecution failed to disclose that the witne ss had been hypnotized]; Alford v. Superior Court (1972) 29 Cal. App. 3d 724, 728 [extendingtrial rules for prosecutor’s duty to disclose information to preliminary hearings].) Thus, the discovery cases indeed demonstrate th at defense counsel’s lack of access to exculpatory information produced a pronouncedeffect on the opportunity for effective cross-examination . 2. The Court Erred in Using Its Purported Inherent Authority To Protect Children from Imminent Harm To Quash the Subpoenaof Ivan Jr. But Causing Ivan Jr. Harm by Admitting His Preliminary Hearing Testimony Becausethetrial court, using its inherent authority to protect children from imminent harm, found Ivan Jr. unavailable to testify at tria l, it should have also excluded Ivan Jr.’s preliminary hearing testimony. The cou rt relied on mental-health expert testimonythat Ivan Jr. would suffer ha rm if he hadto testify against his parents and found IvanJr. unavailable to t estify in order to protect him. By preventing Ivan Jr. from testifying at trial b ut allowinghis preliminary hearing testimony to be admitted, the court defeatedits purpose of protecting Ivan Jr. The court thus erred in its use of its inherent authority to protect children.*° 30 Appellant agrees with respondentthat the potential harm to Ivan Jr. is immaterial to this Court’s analysis under Evidence Codesection 1291. (See RB 163.) Appellant argues that the court committed a separate state- law error. The inherentauthority that the trial court claimedto declare Ivan Jr. unavailable was not derived from the Evidence Code or anotherstatute. (continued...) a 114 The admissionof his prior testimonylikely traumatized Ivan Jr. Ivan Jr.’s therapist, Edna Lyons,testified that Ivan Jr. would suffer long-term trauma from the admission ofhis preliminary hearing testimonyattrial, whetheror not he wascalledto testify at trial. (22 RT 2030-2031.) In addition, Dr. Cynthia Jacobsstated that playing the tape of Ivan Jr.’s preliminary hearing testimony would be traumatic to him because Ivan Jr. would have to cometo terms with providing testimony that led to his parents’ death sentences. (24 RT 2297-2298.) Moreover, the prosecutor stated that he did not need Ivan Jr.’s testimony to prove his case. (6 CT 1442.) Accordingly, protecting Ivan Jr. from potential long-term trauma from havinghis testimony entered into evidenceat appellant’s capital- murdertrial outweighed the smallinterest the prosecution had in havingit admitted. By admitting the preliminary hearing testimony that posed a slightly less severe risk of causing the harm and traumato Ivan Jr. that compelled the trial court to declare Ivan Jr. unavailable to testify at trial, the court defeated its purpose oftrying to protect Ivan Jr. from harm. Respondent underestimates the harm caused by the admission of Ivan Jr.’s prior testimony than bytestifying at trial. Edna Lyonstestified that she was not sure how the preliminary hearing testimony would affect Ivan Jr. (22 RT 2031.) Her testimony that she was unsure how it would affect him was not the sameas saying it would not affect him. Likewise, 30(.. continued) Respondent states that appellant did not have legal support for this subclaim. (RB 162.) Thetrial court lacked precedential or statutory support for its assertion of inherent authority. Consequently, appellant had no case law orstatute on which to rely for his argumentthat the trial court misused its inherent authority. 115 Dr. Jacobstestifying that Ivan Jr.’s preliminary hearing testimony would be “less traumatic” is not the same as sayingit would not be traumatic enough to cause harm. (24 RT 2297.) Indeed, Lyonsand Dr. Jacobs madeclear that Ivan Jr. would be drastically harmed by the admission of the prior testimony. (22 RT 2030-2031; 24 RT 2297-2298.) Thus, the trauma risk of . admitting the preliminary hearing testimony remained unacceptably high though some expert testimony postulated that Ivan Jr. faced a reduced ris k of trauma from the admissionof his preliminary hearing testimony. 3. The Court Erred In Ruling That Ivan Jr. Was Competent To Testify at the Preliminary Hearing Because He WasIncapable Of Distinguishing Between the Truth and a Falsehood Ivan Jr. could notdistinguish between truth andfalsity. To be competentto testify, a witness must be able to discern that difference. Un re Nemis M. (1996) 50 Cal.App.4th 1344, 1354; Jn re Basillio T. (1992) 4 Cal.App.4th 155, 167, fn. 7.) Ivan Jr. saying that he understood the importanceoftestifying truthfully and agreeing to tell only the truth does _ not show that he was competent. For a person who cannot distinguish truth from falsity, a vow to be truthfulis utterly meaningless. Ivan Jr.’s confidencein his ability to tell truth was similarly superfluous. (See People v. Shirley (1982) 31 Cal.3d 18, 62 [expert witness explaining that studies have shownthat “people can be more confident about their wrong answers than their right ones”’].) Dr. Volcani provided uncontradicted expert testimony that there was a significant probability that Ivan Jr.’s stated recollections of the events at the preliminary hearing were inaccurate. (48 RT 5715.) Dr. Volcanialso testified that children of Ivan Jr.’s age are mostlikely to confabulate an d 116 layer their own fantasies and associations onto the stored memories of an event and that children’s memories of a traumatic event could be altered by adults and support services provided for the child. (48 RT 5705-5706.) Police officerstelling Ivan Jr. hours after Genny’s death that he waslying, Ivan Jr.’s foster mother questioning him regarding the case, and Ivan Jr. working with child therapists are all sources that would have added different perspectives and layers to Ivan Jr.’s memory. Ivan Jr.’s memory of the event mutated over time as more influences to his memory were made knownto him. By timeIvanJr. testified at the preliminary hearing, four months after Genny’s death, he had been exposed to numerous influences to his memory to the point where he lackedthe ability to distinguish between truth and falsehood in regardsto the event. Despite the superficial distinctions that respondent overemphasizes, this case is analogousto cases regarding hypnotically aided testimony. Like witnesses whoprovide hypnotically aided testimony, Ivan Jr. had a false confidence in the truthfulness ofhis testimony. Although the sources ofthe false confidence differ, the cross-examination of Ivan Jr. was similarly hampered by IvanJr.’s incorrect belief that his recollection of events was accurate. (See People v. Shirley (1982) 31 Cal.3d 18, 66-67 [holding defendant had no opportunity for effective cross-examination witness’s hypnotically-aided testimony because witness had false confidence in that testimony].) Because Ivan Jr. thought he was he wastestifying truthfully, cross-examination could not uncoverthe untruths in the testimonyasit would for a witness who waseither lying or unsure of his testimony’s accuracy. That is why a witness who cannot discern truth from falsity or separate reality from fantasy cannot be a competent witness. Thetrial court 117 erred by ruling that Ivan Jr. was competentto testify and thereby not excluding the preliminary hearing testimony on the basis of Ivan Jr. ’s incompetence. B. The Admission of Ivan Jr.’s Preliminary Hearing Testimony Violated Appellant’s Confrontation-Clause Rights The admission ofIvan Jr.’s preliminary hearing testimony infrin ged appellant’s constitutionalrights. Without a meaningful opportuni ty for effective cross-examination, the admission ofprior testimony t ransgressed the confrontation clause. For the reasons that Evidence Codesec tion 1291 should havebarredthe testimony,the trial court’s ruling infrin ged appellant’s constitutionalrights. Contrary to respondent’s assertion, the mere opportunity to ask a witness questionsis not sufficient. If state action prevents def ense counsel from conducting an effective cross-examination, the con frontation clause is violated despite the fact that defense counsel wasable to ask t he witness some questions. (See United States v. Owens (1988) 484 U.S . 554, 559.) | Respondent contends, however,that the United States Supreme Court’s plurality opinion in Pennsylvania v. Ritchie (1987) 480 U.S. 39, 52 demonstrates that any opportunity to cross-examine a witness s uffices under the confrontation clause. Respondentreads Ritchie too broadly. If respondent’s cramped interpretation of the confrontation clau se were correct, then the United States Supreme Court opinions in Owens and Kentucky v. Stincer (1987) 482 U.S. 730 would have been muchsi mpler; the Court would only have had to explain that the confrontation c lause guarantees nothing more than any opportunity to ask a witness ques tions on cross-examination. Furthermore, respondent exaggerates the similar ities 118 between this case and Ritchie. In Ritchie, the defendant was denied access to social-service recordspriorto trial and argued on appeal that not having the documents violated his confrontation-clause rights. (Ritchie, at pp. 43- 45.) Thus, quite literally, the defendant in Ritchie sought to turn the denial of discovery into a constitutional violation. That is why the Ritchie plurality opinion explained that the justices did not want to transform the confrontation clause into a constitutionally compelled discovery rule. (/d.at p. 53.) This case is quite different. The ruling that appellant appeals is the admission ofprior testimony—notthe denial of access to specific documents. Appellant does not contend that it was error for Ivan Jr.’s foster-care placementto be confidential. Nor does appellant argue that any court erroneously denied him access to documents. Accordingly, Ritchie is inapposite. Ritchie involved the denial of discovery; this case concerns the admission of prior.testimony. The nexus between this claim and the confrontation clause is much stronger than the analogous claim was in Ritchie. Therefore, the Supreme Court’s concerns in Ritchie are inapplicable to this case. Appellant was deprived of the meaningful opportunity for effective cross-examination of Ivan Jr. The admission ofhis prior testimonyat the guilt phase of thefirst trial violated his confrontation rights. C. The Seating Arrangement During Ivan Jr.’s Preliminary Hearing Testimony Also Violated Appellant’s Confrontation Clause Rights The seating arrangement during Ivan Jr.’s preliminary hearing testimony violated appellant’s confrontation clause rights. Without a case- specific showing of necessity, it was improper for the municipal court to have Ivan Jr. face away from appellant. 119 Respondent’s argumentthat the seating arrangement did not implicate the confrontation clause must fail. Respondentcites People v. Sharp (1994) 29 Cal.App.4th 1772 to support its proposition that the sea ting arrangement wasa de minimis violation of the confrontation clause that need not have been justified by a case-specific necessity. Sharp, howev er, recognized that Marylandv. Craig (1990) 497 U.S. 836, 854-855 requires a _ case-specific showing of necessity for finding any “procedure affording less than literal face-to-face confrontation is necessary to protect the particular child witness.” (Sharp, at p. 1783, fn. 4.) Thus, under Sharp, a courtroo m seating arrangementthat impedes the defendant’s view of a witness infringes the confrontation clause unless supported by a case-specific necessity.*! Respondent’s alternative argumentthat the prosecution made a case- specific showing ofnecessity lacks factual support. As explained in the Opening Brief, the prosecutor’s unsworn allegation did not constitute competent evidence upon which a case-specific showing ofnecessity c ould be made. (AOB 223-227.) Respondent’s rejoinder that appellant forfeited this subissue strains credulity. At the outset of the preliminary hearing, defense counsel lod ged a confrontation-clause objection to the seating arrangement. The trial co urt 31 In State v. Miller (N.D. 2001) 631 N.W.2d 587, 594-595, the North Dakota Supreme Court wrongly concluded that a case-specific showing of necessity was not required. The Miller court based its decision on the mistaken premise that other courts have not required such a showin g when the defendant’s view ofthe witnessis not physically obstructed. (See, e.g., Ellis v. United States (1st Cir. 2002) 3 13 F.3d 636, 649-650 [requiring case-specific showing of necessity for alternate seating arrangement similar to the arrangementusedin this case].) 120 concludedthat the confrontation violation was de minimis and did not require the prosecution to proveits allegations that Ivan Jr. feared his parents. (1 PX 7-10.) Under the governing law, any impedimentto face-to- face confrontation required an on-the-record showing ofcase-specific necessity. The confrontation-clause objection thus contained an implicit demandthat the prosecution make the requisite on-the-record showingthat the alternate seating arrangement was needed. Respondent’s contention that appellant forfeited his claim that the prosecution failed to make a case- specific showing of necessity is akin to an assertion that a hearsay objection forfeited a claim that the proponentof the hearsay evidencedid not establish that a hearsay exception applied. Therefore, appellant’s claim that the prosecution failed to make an on-the-record showing of case-specific necessity is preserved for appeal. Respondent’s effort to distinguish this case from the precedents cited in the Opening Brief are unconvincing. Slight differences between this case and others matterlittle: A case-specific showing of necessity was required, but not made. The precedents in which courts have decided that the state’s case-specific showing of necessity required the defendant’s confrontation rights to yield to the state’s interest are immaterial. In this case,the state failed to present competent evidence ofits interestin overcoming appellant’s confrontation rights. That infringed appellant’s rights. D. The Municipal Court Improperly Truncated the Cross- Examination of Ivan Jr. The municipal court placed undue limits on the cross-examination of Ivan Jr. at the preliminary hearing. Thetrial court erred and violated appellant’s confrontation rights whenit sustained prosecutorial objections 121 to questions regardingIvan Jr.’s credibility. Despite respondent’s assertion that appellant has forfeited his confrontation subclaim,the issue has been preserved for appeal. Un der People v. Partida (2005) 37 Cal.4th 428, 435-436, the constitutio nal issue waspreserved; the trial court sustaining the objection had the a dditional legal consequence ofinfringing appellant’s confrontation rights. This Court should reconsiderits ruling in People v. Thornton (2007) 41 Cal .4th 391, 427 that a confrontation claim wasforfeited where the defendan t did not explicitly raise the confrontation-clause issue with the trial court. Although Thornton cited Partida, this Court did not explain howthe confron tation- clause issue in Thornton differed from the due-process issue this Court deemedpreserved in Partida. A logical distinction between the two scenarios cannot be drawn. Moreover, the policies underlying th e contemporaneous-objection requirement do not support finding the confrontation-clauseissue forfeited in this case. Unlike a situation in which defense counsel objects to prosecution evidence on some grounds but not | on others, appellant preserved the evidentiary and confrontation- clause issues for appeal by cross-examining Ivan Jr. Defense counsel’s me re act of cross-examining Ivan Jr. was inherently an exercise of appellant’ s confrontation-clause right. Accordingly, when the municipal c ourt sustained the prosecutor’s objection to defense counsel’s cross-e xamination, the court was awareofthe confrontationrights at stake and, by s ustaining the objection, implicitly ruled that appellant’s confrontation right s did not require that the objection be overruled. In addition, appellant has not forfeited his appellate claims pertaining to the court’s questioning of Ivan Jr. The court’s foll ow-up 122 questions wereits responseto its ruling curtailing the cross-examination of Ivan Jr. with respect to his credibility. The court ruled that defense counsel’s questions to Ivan Jr. was impermissible and launchedinto its own questioning. Thetrial judge had formed an opinion of what questions were proper and queried Ivan Jr. accordingly. As a result, an objection would have been futile. Because the contemporaneous-objection requirementis inapplicable when objections would be futile, this issue is preserved for appeal. (See People v. Hovarter (2008) 44 Cal.4th 983, 1007.) E. The Admission of Ivan Jr.’s Preliminary Hearing Testimony Violated Additional Constitutional Rights Although Ivan Jr.’s preliminary hearing testimony was not admitted at the penalty retrial, the admission of the testimony nonetheless violated appellant’s Eighth and Fourteenth Amendmentrights. The admission of Ivan Jr.’s prior testimonyat the first trial played a significant role in the jury finding the torture-murder special circumstance. Because the admission of Ivan Jr.’s preliminary hearing testimony tainted the death-eligibility finding, the admission ofthe prior testimony denied appellant a fair, impartial, and reliable capital-sentencing determination. F. The Admission of Ivan Jr.’s Preliminary Hearing Testimony Prejudiced Appellant Contrary to respondent’s argument, this was not harmlesserror. This Court should not underestimate the importance of Ivan Jr.’s preliminary hearing testimony. Ivan Jr. was a uniquely situated witness. All of the abusiveacts occurred inside appellant and Veronica’s apartment. Except for Ivan Jr.’s prior testimony, there were no percipient witnesses to the abuseat either 123 trial. The physical evidence did not reveal whether appellant, Veron ica, or both had perpetrated the criminalacts against Genny. Ivan SJr.’s testi mony wascrucial forfilling this evidentiary gap. Ivan Jr.’s prior testimony did exaggerate the appearance of appellant’s participation. As the lone percipient witness, Ivan Jr. pro vided the strongest evidence that appellant participated in the offense. Yet, there wasa significantrisk that Ivan Jr. unconsciously based his testimony on manufactured memories. Asa result, Ivan Jr.’s testimony appeared to the jurors to be morereliable thanit actually was. The penalty retrial jury sentencing appellant to death does not demonstrate that the errors were harmless. Prior the penalty retrial, appellant had been convicted by another jury’s verdict; the retrial jury thus knew that appellant had been found to have participated in the offens e. Moreover,theretrial jury could have reached a death verdict despi te finding that appellant was a minorparticipant. Furthermore, the highly — discretionary nature of the death-sentencing decision restricts the inf erences that can be made from the death verdict. In addition, the panoply of e rrors at the penalty trial infected the death verdict. Lastly, the evidence of appellant’s guilt and intent to kill was not overwhelming. The verdicts reached were not inevitable (see ante , at pp. 33-34), and the wrongful admission of Ivan Jr.’s preliminary heari ng may havetippedthe balancein the prosecution’s favor. Accordingly, res pondent cannot demonstrate harmlessness beyond a reasonable doubt. 124 X. THE ADMISSION OF VERONICA GONZALES’S HEARSAY STATEMENTS TO HER BROTHER-IN- LAW WASERRORTHAT INFRINGED APPELLANT’S CONFRONTATION RIGHTS Victor Negrette’s testimony should have been excluded as inadmissible hearsay. The spontaneous-statement hearsay exception did not apply because the prosecution, which introduced the evidence,failed to establish that Veronica had no time to deliberate before calling Negrette. Evidence Code section 1240 provides: “Evidence of a statementis 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 under the stress of excitement caused by such perception.” In this case, the prosecutor elicited statements Veronica madeto her brother-in-law over the phoneafter an alleged fight between Veronica and appellant. Furthermore, the prosecutorelicited testimony of Veronica’s statements regarding the argument after Negrette and his wife drove for over 90 minutesto pick Veronica up. (60 RT 7711,7713,7715, 7758.) Testimony that Veronica had been crying does not, in and ofitself, qualify as substantial evidence of spontaneity. There was no evidence related to whenthe alleged fight occurred that day or the amountoftime that had passed before Veronica called Negrette. As such, the evidence should have been excluded. A. The Trial Court Abused Its Discretion When It Found Veronica WasStill under the Stress of Excitement When She Called and Spoke with Her Brother-in-Law The prosecution did not establish the threshold for the hearsay 125 statement’s admissibility. “The crucial elementin determini ng whether a declarationis sufficiently reliable to be admissible under this ex ception to the hearsayrule is thus not the nature of the statement but the mental state of the speaker. The nature of the utterance—how long it was madeafter the startling incident and whetherthe speakerblurted it out, for ex ample—may be important, but solely as an indicator of the mental state of th e declarant.” (People v. Stanphill (2009) 170 Cal.App.4th 61, 74, citing Peop le v. Farmer (1989) 47 Cal. 3d 888, 903-904.) In this case, Negrette testifi ed that Veronicatold him that appellant and she had fought earlier tha t day. There is no testimony that suggests the time the alleged fight occurred , the amount oftime that passed before Veronica called Negrette, or whethe r Veronica’s statements were in response to Negrette’s questions. Becauseth ere are many unanswered questions related to the spontaneity of the adm itted hearsay statements, the prosecution failed to lay the proper founda tionfor the statements’ admissibility. Contrary to respondent’s assertion, Veronica crying when she sp oke. to Negrette does not provide substantial evidence to support th e trial court’s admission of her hearsay statements under the spontaneous-stat ement exception.” Simply put, crying perse about an event that occu rred earlier in the day doesnot suffice. Crying in itself does not equateto a startling event. (Commonwealth v. Trowbridge (Mass. 1995) 647 N.E.2d 4 13, 420.) Accordingly,the trial court abusedits discretion by admitting th e 32 Indeed, respondenttakes a very different approachto the significance of Veronicabeing emotional with respect to whethe r her statements to the police officers made after Genny’s death were admissible under the spontaneous-statement exception to the hearsay rule. ( RB 78-80.) 126 statements. B. The Introduction of Veronica’s Statementto Negrette Violated the Confrontation Clause The Sixth Amendmentgives defendants the right to confront and cross-examine witnesses against them. The admission of hearsay violates the confrontation clause when (1) the defense has not had the opportunity to cross-examinethe hearsay declarant and (2) the statementis testimonialin nature. (See Crawford v. Washington (2004) 541 U.S. 36, 50-56.) In this case, the statement was testimonial in nature because Veronica described what had already happened rather than what was happening whenshecalled Negrette. The alleged statement concerned an alleged familial altercation that occurred sometimeearlier that day. Similarly, in Davis v. Washington (2006) 547 U.S. 813, 830, statements to determine what had happened were considered testimonial in nature while statements to an officer to determine what is happening were not. Because there was no ongoing emergencyin this instance, this case is similar to Davis. To be sure, Veronica did not make her statementto the police; however, an out-of-court statement need not be madeto the police in order to be deemed testimonial. (See Davis, 547 U.S. at 828 [citing hearsay declarant’s report of rape to her mother as example of testimonial hearsay], citing King v. Brasier (1779) 1 Leach 199, 168 Eng. Rep. 202; Hartsfield v. Commonwealth (Ky. 2009) 277 S.W.3d 239, 247 (conc. opn. by Schroder, J.); State v. Mechling (W.V. 2006) 633 S.E.2d 311, 323, fn. 10.). Although People v. Cage (2007) 40 Cal.4th 965, 991, limits the universe of out-of-court testimonial hearsay to interrogations, this Court’s reading of the confrontation clause is unduly restrictive and should be reconsidered. (See People v. Bryant (Mich. 2009) 768 N.W.65, 67-76, [analyzing whether statement was testimonial by 127 dissecting when hearsay statements were made, not to whom they were made].) Therefore, the statement should have been excluded . Cc. The Error Was Prejudicial Because the Hearsay Evidence Admitted Wasthe Only Evidence Proffered To Show Appellant Ever WasPhysical with Veronica Throughout Their Marriage Undereither the Watson or Chapmanstandards, the erroneous admission ofthe evidence was not harmless. The admission o f the hearsay statement undermined appellant’s assertion that he failed to s top Veronica from solely perpetrating the crimes against Genny because he was a battered spouse. In addition, as the only evidence of appellant a llegedly using force against Veronica,the jury could have concluded from it that appellant was a violent person and usedthatas a basis for find ing him guilty of perpetrating the torture-murder. For these reasons, th is Court should vacate appellant’s conviction and the special-circums tance finding. 128 XI. THE ADMISSION OF APPELLANT’S VIDEOTAPED INTERROGATION VIOLATED HIS CONSTITUTIONAL RIGHTS BECAUSE HE NEVER VALIDLY WAIVED HIS MIRANDA RIGHTS TO COUNSEL The conviction, special-circumstance finding, and death judgment must be vacated becausethetrial court erred whenit failed to suppress appellant’s videotapedinterrogation although appellant never made a knowing, voluntary, and intelligent waiverof his right to counsel. Appellant did not impliedly waive his constitutionalrights. To find a valid waiver of a Mirandaright,“first, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception; and second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequencesofthe decision to abandonit.” (People v. Smith (2007) 40 Cal.4th 483, 501.) Whether a defendant has made a knowingandintelligent waiver of Mirandarights “depends upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.” (People v. Jenkins (2004) 122 Cal.App.4th 1160, 1171.) Lookingat the totality of the circumstances, the record lacks substantial evidence that appellant made a knowing,intelligent, and voluntary waiverofhis rights. In this case, appellant’s initial response was unintelligible. Instead of asking for clarification from appellant, Detective Powerstold him that he had already talked to Veronica and wanted to get his side of the story because the case would go to court. (8 CT 1757.) 129 Detective Powersdid not explain to appellant that he had a right not to talk to the detectives. Furthermore, Detective Powers spoke ove r appellant and began interrogating him prior to obtaining any sort of waiv er. (8 CT 1753- 1757.) Appellant answered the questions without the aid of counselor knowingthe effect of his actions. Appellant answering af firmatively when askedif he understoodhis rights was not sufficient to sho w a waiver. He may have believed he understood his rights when heactual ly did not; appellant is a high-school graduate who wasnot aware of the nature of the Miranda rights and the consequences of any decision to ab andon them. Appellant did not affirmatively state that he would waiveh is rights. These facts do not provide substantial evidence that appellant w aived his Miranda rights. In arguing that appellant had impliedly waived his Mirandari ghts, respondent unduly lowers the bar for courts finding a waiver of constitutional rights. Respondent’s argument boils downto the following assertion: Appellant made an implied waiver because he ans wered the questionsafter stating that he understood his Mirandarights. (RB 191- 193.) Respondent’s effort to show that appellant made an im plied waiver flies in the face of North Carolina v. Butler (1989) 441 U.S. 369, 373. Respondent cannot meetits great burden of showing implied waiver in this case. Appellant’s waiver cannot be clearly inferred from the se facts: Appellant did not answer when asked if he would waive his Mirandarights, Detective Powers thrust ahead with the interrogation before appellant could articulate a response, and Detective Powers deceptively told a ppellantthat he neededto answerhis questions in order to ensure that Veron ica’s out-of- court statement would not go unanswered at appellant’s tr ial. 130 The interrogators misled appellant. The detectives urged appellant to sacrifice his Miranda rights so he could protect himself against having Veronica’s statementbethe only story told at his trial. But, contrary to respondent’s assertion, it was clear at the time ofthe interrogation that Veronica was a suspect. Because Veronica appeared that morning to be a probable perpetrator, the interrogators should have knownthat Veronica’s statements would not have been admissible against appellantathistrial. Even if she had becomea star prosecution witness, her out-of-court statement have been rank hearsay. There was no waythat appellant’s trial could have becomea credibility contest determinedby the jurors’ perceptions of Veronica and appellant’s statements during their interrogations. Thus, Detective Powers misled appellant when he soughtto convince appellant to waive his Miranda rights in order to avoid being convicted on the basis of Veronica’s hearsay statements. Concededly, Detective Powers deceiving appellant during the interrogation does not constitute a per se violation of appellant’s privilege against self-incrimination. (AOB 245-246.) Nevertheless, the chicanery undercuts respondent’s assertion that appellant made an implied waiver of his Miranda rights. Respondentcites appellant’s invocation of his Miranda rights at a subsequentinterrogation as proof that appellant understood and waived his Mirandarights atthe first interrogation. (RB 193.) That inference is far-fetched in this case, in which Detective Powersresorted to subterfuge to urge appellant to answerhis questions. In the absence ofa bonafide waiver of appellant’s Mirandarights, the admission of appellant’s interrogation was error. The error was not harmless for two fundamental reasons. First, this was a close case and the 131 evidenceof appellant’s guilt was far from compelling. (See ante, at pp. 33- 34, 36.) Second, the admissions appellant made durin g the interrogation were Critical to the prosecution’s case at the guilt phase and t he penalty retrial. At the guilt phase, the interrogation and Ivan Jr.’s d ubious prior testimony comprised the only evidence pointing specificall y to appellant, rather than Veronica,as the perpetrator. At the penalty retri al, appellant’s interrogation stood alone, because the prosecution did not a dmit Ivan Jr.’s prior testimony into evidence. In its effort to show that the erroneous admissionof appellant ’s interrogation was harmlessat the penalty retrial, responden t cannot rely on the fact that the prosecutor would have used Ivan Jr.’s stat ements. Respondent’s penalty-retrial harmlessness analysis could har dly be more speculative. Moreover, Ivan Jr.’s testimony lacked veracity a nd was internally contradictory. The jury at the first trial needed se ven days to convict appellant andfailed to reach a penalty-phase verdict d espite the admission ofIvan Jr.’s prior testimony. Accordingly, the erroneous admission of appellant’s interrog ation was not harmless at the guilt phase or the penalty retrial. Thi s Court should vacate appellant’s conviction, special circumstance, and deat h sentence. 132 XII. THE TRIAL COURT ABUSEDITS DISCRETION WHEN IT ADMITTED THE USE OF A CHILD-SIZED MANNEQUIN AND GRUESOME PHOTOGRAPHSOF GENNY INTO EVIDENCE OVER DEFENSE OBJECTIONS. The potential for undue prejudice from the photos of or mannequin representing Genny so far outweighed their probative value that thetrial court abusedits discretion by admitting the evidence over the defense’s Evidence Code section 352 objections. Section 352 provides: ‘‘The court in its discretion may exclude evidenceif its probative value is substantially outweighedby the probability that its admission will (a) necessitate undue consumptionoftime or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Thetrial court abusedits discretion whenit failed to weigh properly the probative value versus the substantial danger of undue prejudice and consumptionoftime. A. The Photographs of Genny Were Improperly Admitted Because They Were Gruesome, Cumulative, and Prejudicial, Which Resulted in an Improper Appealto the Jurors’ Emotions Respondentconcedesthat the autopsy photos of Genny were gruesome. Respondent, however, claimsthat the trial court properly admitted the gruesome photos because appellant committed a gruesome crime. (RB 201). That argumentreveals the fundamental flaw with the admission of the photos. The admission of the autopsy photos presented the high potential for prejudice. Whether appellant perpetrated the offense was the most important issue the jury had to determine. The photos shed nolight onthis question. The photos, or the evidence ofthe particular injuries, could not 133 demonstrate whether appellant, Veronica, or bot h victimized Genny. But, the photoshad the potential to inflame the jury and ca usethe jury to infer guilt from the degree of victimization. In addition,the trial court also abusedits discretion b y admitting the Halloween photo of Genny. The photo addedlittle t o the testimony that Genny wasnot injured when she came to live with ap pellant and Veronica. Yet, the photolikely created sympathy for Genny. Respondent’s argumentthat the court properly admitted the photos could not be more different from respondent’s argume nt that the trial court’s exclusion of appellant’s demonstrative evidenc e. Appellant’s proffered demonstrative evidence sharedsimilar char acteristics to the autopsy photographs. Thetrial court’s disparate trea tment ofthe different parties’ evidence further demonstrates that the court’s admission of the photos was erroneous. B. The Trial Court Abused Its Discretion by P ermitting the Use of a 34-Inch Mannequin, Which Was an Impro per Appealto the Jurors’ Emotions That Created a Substantial Danger of Undue Prejudice By admitting into evidence a 34-inch mannequin to dem onstrate graphically how Genny may have sustained oneof heri njuries, thetrial court erred. The mannequin hadlittle probative value and appealed to the jurors’ passions. (See State v. Wright (Fla.App. 1985) 4 73 So.2d 268, 270.) Theintroduction of the mannequin addedlittle to the t estimony describing her injuries. Respondent contends that the mannequin wasnot dramatic and, thus, not prejudicial. (RB 203-204.) Yet, the cour t excluded appellant’s demonstrative evidence though there wasnot hing particularly dramatic about having appellant’s children be exhibited in , or merelysitin, 134 the courtroom. Further, defense counsel’s contemporaneous concerns suggest that the mannequin was not as innocuous as respondent contends. (Cf. People v. Jurado (2006) 38 Cal.4th 72, 106 [equating defense counsel not disputing trial court’s observation with apparent agreement with court].) In cases with child victims, the jury often is hypersensitive and tends to focus on the victim and not the events surrounding the incident. (See Sundby, The Capital Jury and Empathy: The Worthy And Unworthy Victims (2003) 88 Cornell L. Rev. 343, 346.) That is a particular concern in this case, because the focus on Genny’s age and vulnerability could have distracted the jury from the key question whether appellant tortured or killed Genny and risked having the jury convict appellant because he permitted a youngchild to die, irrespective of whether he personally perpetrated the offense. C. The Admission of the Photos and Mannequin Infringed Appellant’s Constitutional Rights The combination of the Fifth, Eighth, and Fourteenth Amendment rights and the California constitutional guarantees in sections 7, 15, and 17 provide a defendant with the constitutional guarantees of due process and a fair and reliable capital-sentencing proceeding. “In the event that evidence is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendmentprovides a mechanism for relief.” (Payne v. Tennessee (1991) 501 U.S. 808, 825.) Admitting multiple graphic photos, which the trial judge described as the “most gruesomehe hadseen in 25 years,” along with the 34-inch mannequin rendered appellant’s trials fundamentally unfair. 135 Furthermore,the trial court gave wide latitude to the prosecutor whenintroducing the gruesome photographs and mannequin while prohibiting appellant from presenting his four children to the jury. This disparate treatment was fundamentally unfair and formed an additi onal violation of appellant’s due-processrights. Additionally, by permitting these multiple gruesome photographs and the use of a 34-inch mannequin, the court violated the heightened- reliability requirement at the penalty retrial. (See Woodson v. North Carolina (1976) 428 U.S. 280, 305 [requiring heightenedreliability fo r capital-sentencing determination].) “It is of vital importance to the defendant andto the community that any decision to impose the death sentence be, and appearto be, based on reasonrather than caprice or emotion.” (Gardner v. Florida (1977) 430 U.S. 349, 358.) The admissio n of the photographs and mannequin openedthe floodgates for jurors’ emotions, rather than their reason, to guide the penalty-phase delib erations and verdict. D. The Conviction, Torture-Murder Special Circumstance, and Death Judgment Must Be Vacated Because the Improper Admission of the Photos and Mannequin Resulted in Reversible Error Appellant’s involvementor lack thereof in the infliction of Genny’s injuries was hotly disputed at both trials. Contrary to respondent’s claim, the evidence against appellant was not overwhelming(see ante,at pp. 33 - 34, 36); therefore,it is highly probably that the erroneous admission of the photos and 34-inch mannequin convinced the jury of appellant’s involvement and convicted him or found the torture-murder special circumstance applicable. Further, the jury at the penalty retrial, which w as 136 focused on therelative culpability of appellant and Veronica, may not have returned a death verdict in the absence of the error. (See People v. Brown (1988) 46 Cal. 3d 432, 448.) At the very least, respondent cannot showthat the error was harmless beyond a reasonable doubt. (See Chapman vy. California, supra, 386 U.S.at p. 24.) 137 XII. THE PROSECUTION FAILED TO PRODUCE SUFFICIENT EVIDENCE TO SUPPORT THE MURDER CONVICTION AND THE SPECIAL- CIRCUMSTANCEFINDING Nothing more than mere speculation about what happened behind closed doors supports the conviction and special circumstance. The prosecution presented insufficient evidence that appellant was the perpetratororthat he intendedtokill or torture Genny. To the contrary, appellant was abusedin his relationship with Veronica. Veronicacalled all the shots, and appellant submissively allowedher to do that. His will was overcomebyhis wife’s aggressiveness. The record provideslittle evidence of who did what in appellant and Veronica’s apartment. Appellant’s guilt or participation cannotbe inferred from his mere presence. (People v. Campbell (2001) 25 Cal-App.4th 402, 409.) Thatis especially true in this case, in view of the abusive relationship between appellant and Veronica. A. There WasInsufficient Evidence That Appellant Wasthe Perpetrator The evidence provided nohintof the perpetrator’s identity. (53 RT 6526.) Ivan Jr. inculpatory testimony was directly contradicted on cross-examination whenhetestified that he did not see appellant put Genny in the bath on the night of her death. (2 PX 236, 293.) None of the admissions madeby appellant provided ample evidence that he was culpable for any unlawfulactivity. Ivan Jr.’s subjective thoughts that he personally knew that Genny would die one day does not reveal what appellant did or intended. (9 CT 1934, 1939.) Admittedly, appellant 138 disciplined his children’s behavior by spanking them,hitting them with a belt, or swatting them with a brush; however, from none of these actions can this Court infer that appellant perpetrated the offense against Genny. (8 CT 1768-1770, 1840-1841.) Undoubtedly, this Court must consider the entire record when determining whether the evidence supporting the conviction and special circumstanceis sufficient. (People v. Slaughter (2002) 27 Cal. 4th 1187, 1203.) Even viewingall of the evidence in the light most favorable to the judgment (see People v. Lewis (2006) 39 Cal.4th 970, 1044), the evidence that appellant was either the primary perpetrator or an aider and abettor was insufficient to support the conviction. B. There WasInsufficient Evidence To Determine That Appellant Intended To Torture and Kill Genny To prove the torture-murder special circumstance, the prosecution must show that appellant intendedto kill and inflict extreme pain. (People v. Cole (2004) 33 Cal. 4th 1158, 1197.) Although the jury may infer the “intent to inflict extreme pain” from the surrounding circumstancesof the crime (People v. Chatman (2006) 38 Cal.4th 344, 390), the prosecutor failed to show that appellant personally inflicted Genny’s injuries. Further, this Court has “cautioned against giving undue weight to the severity of the wounds.” ([bid.) Although respondentrefers to numerousacts that appellant allegedly committed, it cannot be inferred from the evidencein the recordthat appellant formed the requisite mens rea for the torture-murderspecial circumstance. The admissions appellant made during his interrogation do not show the intent to torture or kill Genny. Appellant admitted to 139 disciplining his children and Genny by spanking them,hitting with a brush or belt, and putting Gennyis isolation in a woodenbox to scare he r. (8 CT 1768-1770, 1786, 1804-1805; 52 RT 6325). The spanking and belt hitting to whichappellant admitted is a far cry from either torture or inten t to torture. Appellant putting Genny in a box or installing the hook ar e more troublesome admissions; nevertheless, it is not reasonable to infer an intent to kill or an intent to inflict extreme pain. Such an inferenceis parti cularly weak because the evidence does not identify the perpetrator. Not knowing whichperson perpetrated the offense cannot affirmatively prove th at both people hadthe requisite intentto torture and kill Genny. C. The Conviction, Special-Circumstance Finding, and the Death Sentence Must Be Reversed Theinsufficiency of the evidence requires reversing the convict ion and torture-murderspecial circumstance. Asa result of those reve rsals, appellant would not beeligible for the death penalty. Accordingl y, the death sentence should also be reversed. 140 XIV. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT DURING THE GUILT PHASE The prosecutor committed several instances of prejudicial misconduct. They include referring to numerous witnessesthat did not testify, comparing appellant to Adolf Hitler and Slobodan Milosevich, and calling appellant Ivan the Terrible, as well as a camp commandant conducting a campaignofterror. A. The Prosecutor Committed Misconduct by Referring to Witnesses the Defense Failed To Call and Thereby Diminishing the Presumption of Innocence andShifting the Burden of Proof First, the prosecutor referred to numerouswitnesses that the defense did not call. Instead of referring to the evidence that actually wasin front of the jury, the prosecutor madea series of speculative commentsrelating to nontestifying witnesses. Respondentasserts that the prosecutor’s comments properly highlighted the lack of defense evidence supporting the defense theory that Ivan Jr. had been coached. (RB 215.) The prosecutor’s comments were more pernicious than respondent perceives. The prosecutor did not merely state that no defense witnesses supported the theory; he argued that if the nontestifying witnesses had beencalled to the stand, they would havetestified that Ivan Jr. had not been coached. That argument crossed the line between merely pointing out a deficiency in the evidence and referring to evidence that wasnotin the record. 141 B. The Closing Argument WasProsecutorial Misconduct Because the Prosecutor’s Arguments Were Unsupported by the Evidence and Unduly Prejudicial Second, the prosecutor committed misconduct by referring to appellant as a “murderer of epic proportion,” comparing him to Hitler and Milosevic, and calling appellant a “camp commandant” embarkin g on “a campaign ofterror.” (63 RT 8031- 8032.) Respondent, howeve r, claims that the comparisonsto Hitler and Milosevic were appropriate r eferences to matters within the jury’s commonexperience and that the pros ecutor drew a legitimate parallel to Hitler because both appellant and Hitler committed heinousacts despite not being physically imposing figures. (R B 216-217.) A close review of the record undermines respondent’s argume nt. The prosecutor comparedonly appellant’s conductto Hitler and M ilosevic, and his references to appellant’s height were notpart of the compar ison between appellant and genocidalheads of state. (63 RT 8031.) Respo ndentalso asserts that calling appellant a camp commandant conducting a reign of terror was a fair comment on the evidence. (RB 217.) That pro secutorial - argument, however, was notpart of a reasonable inference. Unde r respondent’s theory, to which the trial court subscribed, any hea d of household who commits a crimein his home can be deemed kin g of his castle and called a camp commandant. Similarly, any defendant named Ivan whoelicits evidence that he was peaceful or had been vict imized could be called Ivan the Terrible. The prosecutor’s epithets were too f ar fetched to constitute a legitimate argument. 142 C. The Misconduct Was Prejudicial and Violated Appellant’s Due-Processrights The prosecutor’s inflammatory argumentdenied appellant fair trial and thereby denied him due process.*? Although respondent contendsthat the epithets were fleeting (RB 220), comparing a capital defendant to notorious figures like Hitler and Ivan the Terrible would, unless truly supported by the evidence, always be succinct. Yet, even a terse comparisonto Hitler or the use of an epithet can makea strong impression on ajury. Accordingly, the prosecutor engaged in “ a pattern of conduct ‘so egregiousthatit infected the trial with such unfairness as to make the conviction a denial of due process.’” (People v. Gray (2005) 37 Cal.4th 168, 214.) D. The Misconduct was Not Harmless and Appellant’s Conviction and Special Circumstance Finding Should Be Reversed The prosecutorial misconduct rendered appellant’s trial unfair. Therefore, this Court must vacate the conviction, special-circumstance finding, and the death judgment. 33 This claim has been preserved for appeal, though defense counsel did not specifically raise a due process claim duringtrial. Because appellant asserts that the prosecutor’s improper argument“had the additional legal consequenceofviolating due process,” appellant did not forfeit his due process claim. (See People v. Partida (2005) 37 Cal.4th 428, 435.) 143 XV. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT DURING THE PENALTY RETRIAL Prosecutorial misconduct marred the penalty retrial. This misconductincluded characterizing appellant as a camp commandan t, referring to him as Ivan the Terrible, asking irrelevant and prejudic ial questions about appellant’s clothing, and providing an empty chair to represent Genny. As explained in Claim XIV,calling appellant a camp commandant and Ivan the Terrible constituted misconduct. The prosecutor’s r emarks were not a fair commenton, and could not be reasonably infer red from,the evidence. (See ante, at p. 142.) The prosecutor committed fur ther misconductby calling appellant a camp commandantin the openin g statementafter the prosecutor had represented that he would not do so. Respondent’s argumentthat the deception was not prejudicial beca use the trial court ruled that the camp-commandantepithet was a proper com ment. on the evidenceis flawedin three respects. (RB 231-232.) First, th e prosecutor deceivedthe court and counsel regardless of how the trial c ourt ultimately ruled. Second, although the trial court ultimately concluded that the epithet was permissible,at the time the prosecutor made his openin g statement the court had notyet ruled on the propriety of the argument—because the prosecutor said that he would notcall appella nt a camp commandantduring the opening statement. Third, respondent’s contention relies on the dubious premise that the trial court correctly concluded that the prosecutor maycall appellant a camp commandant. 144 The prosecutor’s reservation of an empty chair to show “‘that somebody cares about Genny and that Genny doesexist in all of our hearts” was misconduct. The prosecutor’s use of this symbolic chair constituted an inappropriate emotional appealto the passions of the jurors. (See Frazier v. Huffman (6th Cir. 2003) 343 F.3d 780, 793.) The prosecutor may not seek to arouse the jury’s sympathy. (See Hooper v. Mullin (10th Cir. 2002) 314 F.3d 1162, 1173 [holding prosecutor committed misconductby soliciting sympathy for victim].) Victim-impact evidence cannot be designedto elicit sympathy for the victim. (See Kelly v. California (2008) 129 S.Ct. 564, 567 (dis. opn. by Stevens, J., on denial of cert.).) Likewise, the prosecution cannot seek to manufacture sympathy for the victim whenit seeks to substitute for the absence of victim-impact evidence. Respondent contendsthat the empty chair wasnot aneffort to appeal _ to the jurors’ emotions. Rather, respondent claimsthat it was a valid stunt to show that only Veronica and appellant cared for Genny, whichrelates to the viciousnessof the offense. Respondent’s argumentis, to say the least, a stretch. First ofall, the prosecutor used to chair to show that somebody cares about Genny,not that appellant and Veronica were her only caretakers at the time of the offense. Second, the nexus between the empty chair and Gennybeing cared for by the two potential perpetrators is a figment of respondent’s counsel’s imagination. Third, if the empty chair and the prosecutor’s related argumentconstitutes fair comment on the evidence,it would be hard to envision a scenario in which a prosecutor’s prop would not be perceived as a fair commenton the evidence. Why could a prosecutor not use an empty chair in every homicide case to demonstrate that the killing prevented the decedent from attending thetrial? After all, in 145 every homicidetrial the prosecution elicits evidence that the decedentis dead. Perhaps the most disturbing aspect of the prosecutor’s use oft he chair, with the trial court’s imprimatur, is the double st andard that respondent and the trial court have had toward potentially em otional evidenceelicited by the parties. When appellant sought to ha ve his four youngest children exhibited to the jury, respondentfought tooth and nail to exclude the evidence. The prosecutor was concerned aboutth e possibility that the jury would sympathize with appellant.** The trial court r emarked that the presenceofthe children in the courtroom would “bl ackmail” the jury. (68 RT 86211.) These concerns shared by respondent andthetrial court regarding efforts to introduce evidence that would aro use the jury’s emotions did not extend to prosecution evidence. The prosecutor also committed misconduct when he improper ly referred to appellant’s clothing and grooming.*> Unlike in Pe ople v. Schmeck (2005) 37 Cal.4th 240, 298-299, the prosecution elicite d evidence. 34 It would be preposterous to suggest that a desire to protect the children undergirded the prosecutor’s opposition to the defen se-proffered evidence. By seeking death sentences against appellant and Ve ronica, the prosecutor waswilling to orphan their children. 35 Appellant did not forfeit this misconduct claim with respectto the prosecutor’s closing argument. After the trial court ruled that the evi dence of appellant’s appearanceat the time ofthe arrest was relevant, th en the argument wasnecessarily a fair comment on the evidence. An object ion during closing argument would have been futile. (See People v. Hill ( 1998) 17 Cal.4th 800, 820.) In addition, the claim was not perfunctor y; the previous subsection of the Opening Brief explained whyreferencesto appellant’s clothing constituted misconduct. (See AOBat 267-268.) 146 of appellant’s appearanceatthe time of the incident for the sole purpose of arguing that appellant was better groomedat thetrial than when he got arrested. Moreover, in Schmeck the prosecutor argued that the defendant being a drug-selling liar made him deathworthy. In this case, there is no connection between appellant’s appearance and whether he was deserving of the death penalty, and respondent doesnot attemptto articulate any nexus. By placing improper emphasis on immaterial characteristics, the prosecutor improperly influenced the jury by diverting their attention from the actual facts presented in the case. The prosecutor committed additional misconductduring his closing argument. The prosecutor’s reference to the odors andfilth in the apartment were improper.*° Thetrial court barred the admissionofdirty- house evidence becausethe potential for prejudice far outweighedits probative value. The dirty-house inference that the prosecutor made from the evidence suffered from the shortcomings as the excluded evidence: The probative value paled in comparisonto potential for prejudice. Respondent asserts that the prosecutor merely made a fair commentfrom the evidence; however, whetherthis inference was reasonably derived from the evidence is immaterial. Appellant asserts that the evidence or inference that the 36 This issue has not been forfeited for appeal. A contemporaneous objection would have been futile. (See People v. Hill (1998) 17 Cal.4th 800, 820.) Thetrial court’s conclusion that the prosecutor’s argument was proper demonstrates that the trial court would not have cured the prejudice in response to a contemporaneousobjection. Furthermore,the trial court’s rulings show thatthetrial court believed that any argumentthat constituted a reasonable inference from the record wasvalid, regardless of how prejudicial the argument was. 147 house reeked offeces and urine was unduly prejudicial—notthatthe inference could not be reasonably derived from the evidence. As explained above (see ante, at pp. 142-143), the comparison of appellant’s actions to what occurredin concentration camps was unduly inflammatory. In addition, the prosecutor distorted appellant’s argument whenhe argued that an I-was-just-following-orders defense was commonat concentration camps; appellant had argued that Veronica’s domination over him deterred him from intervening on Genny’s behalf, not that she compelled his participation. The prosecutor committed further misconduct when he implored the jurors to picture themselves inside appellant’s apartment with a gun and asking them to pull the trigger to prevent Genny’s death. Respondent’s argumentthat the prosecutor’s remarksvalidly rebutted appellant’s defense that the death was not a mistake or accident misses the point. Appellant hasn’t arguedthat the prosecutor made an unreasonable inference regarding the intent to kill; rather, the prosecutor’s argument was an unduly inflammatory appealto the jurors’ emotions. Jurors are impartial arbiters of the facts, not participants in the events that they have been called upon to evaluate. The prosecutor’s effort to inject them rhetorically into the incident was improper. (See People v. Jackson (1963) 59 Cal.2d 375, 381.) Respondent’s attempt to distinguish this case from Jackson, the governing precedent, is unconvincing; the distinction is immaterial. The argumentin this case and in Jackson wasprejudicial becauseit placed the jurors at the crime scene with guns in their hands and charged them with the task of shooting the perpetratorin order to prevent a murder—the prosecutor in 148 Jackson urging the jurors not to be squeamish aboutreturning a death verdict was notthe basis of the Jackson court’s misconductfinding. During his closing argument, the prosecutor misrepresented several of appellant’s arguments. That allowed him to topple straw men while disparaging defense counsel for purportedly making ludicrousassertions. In so doing, the prosecutor committed misconduct.’’ Respondent contends that the prosecutor did not disparage defense counsel because hedid not accuse counselof fabricating a defense. Respondent’s conceptionofthis type of misconductis too narrow; a prosecutor can denigrate defense counsel even when he doesn’t claim that a defense was fabricated. (See People v. Woods (2006) 146 Cal.App.4th 106, 116 [“‘It is generally improperfor the prosecutor to accuse defense counsel of fabricating a defense’ or to otherwise denigrate defense counsel.”], quoting People v. Bemore (2000) 22 Cal.4th 809, 846.) Lastly, contrary to respondent’s assertion, appellant did not elicit evidence or imply that he was a good father. Appellant was careful not to open the doorto a rebuttal of good- father evidence, and thetrial court ruled that evidence ofthe children’s love for appellant did not imply that he was a goodfather, because virtually all children love their parents. (65 RT 8331-8332.) The prosecutorial misconduct deprived appellant of a fair penalty retrial. Because the jury’s penalty determination is subjective and fairly discretionary, prosecutorial misconductat a penalty retrial is substantially more prejudicial than at a noncapitaltrial or the guilt phase of a capitaltrial. (Howarth, The Geronimo Bank Murders: A Gay Tragedy (2008) 17 Law & 37 This issue has not been forfeited for appeal. A contemporaneous objection would have been futile. (See ante, at p 147, fn. 36.) 149 Sexuality 39, 66-70.) In this case, the prosecutor’s improper appeal s to the jury’s emotions, inflammatory rhetoric, and unreasonable inference s impededthe jury from properly weighing the aggravating and mitiga ting factors and precluded the jury from making an appropriate capital - sentencing determination. Becausethe prosecutorial misconduct deprived appellantof a fair penalty retrial, the trial court erred by denying the motion for a new tr ial. In addition, the misconductviolated appellant’s due-process rights and constituted reversible error. 150 XVI. THE TRIAL COURT IMPROPERLY DENIED APPELLANT’S PRETRIAL MOTIONS AND THEREBY VIOLATED HIS CONSTITUTIONAL RIGHTS A. The Trial Court Improperly Denied Appellant’s Request for Sequestered Voir Dire Thetrial court should have granted appellant’s motion for individual voir dire. Respondent claims that appellant did not present a “compelling reason” for this court to rule that sequestered voir dire was necessary in this case. (RB 274.) However, the gravity of a capital case makesit crucial to have an impartial jury andfair trial. Capital trials require heightened reliability, and this precept necessarily requiresa trial court to assurethat jurors are impartial. It is settled in California that the death-qualification process makes the jury significantly morelikely to presume the defendant’s guilt and to impose a death sentence. (See People v. Hovey (1980) 28 Cal.3d 1, 69-82, superseded on other grounds by Code Civ. Proc. § 223.) Moreover, the death-qualification ofjurors in a group setting exacerbatesthis phenomenon,where jurors observe the dismissal of other jurors for expressing reservations regarding imposing the death penalty. (/bid.) Thus, group voir dire in capital cases underminesa defendant’s right to a fair and impartial jury and to a fair and reliable capital-sentencing determination. Code of Civil Procedure section 223 (passed as Proposition 115 in 1990) gives trial courts discretion in the manner of conducting voir dire, and individualvoir dire is permitted if the court determinesthat large-group voir dire is impracticable. (Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168, 1177.) In capital cases where a defendant’s life is at 151 stake, the phrase “not practicable” should be understoo d in light of the defendant’s constitutional rights, not just in terms of ef ficiency. In death penalty cases,it is not “practicable” to conduct group v oir dire becauseitis well established that it results in a “death-prone,” and therefore insufficiently impartial, jury. Even if section 223 did undermine the mandate in Hovey,its general preference for group voi r dire should not be employed tovitiate constitutional norms. (U.S. Cons t., 6th & 14th Amends.; Witherspoonv.Illinois (1968) 391 U.S. 510, 522.) This Court is respectfully urged to find that section 223 only abrogat es Hoveyto the extent that it does not conflict with the rights of capit al defendants to an impartial jury and a reliable capital-sentencing deter mination. B. The Trial Court Improperly Denied Appellan t’s Request To Instruct the Jury on the Definition of Life Withou t Parole Thetrial court should have granted appellant’s motion to define the sentenceoflife without parole. Appellant had the right to a fair and reliable capital-sentencing determination. (U.S. Const., 8th & 14 th Amends.) Itis well-established that most jurors in California capital cas es mistakenly believe that parole may eventually become available eve n to those sentencedto life without the possibility of parole. (See AOB 275.) When jurors are mistaken as to the nature of the available puni shments, they are unable to make an accurate moral judgment regarding th e sentencethat the defendant shouldreceive. Instead, the jury could sentenc e a defendantto death due to concernsthat he would get parole if given a l ife sentence, not on a determination that the aggravating factors so substantia lly outweigh the mitigating factors that death is the appropriate punishment . The requested instruction was not redundant and unnecessary,as the trial judge stated; 152 rather, it was needed to ensure fair and reliable capital-sentencing determination. Byfailing to give complete instructionsto the jury regarding the various sentencing options, the trial court erred, and this Court is urged to reconsiderits relevant precedents. C. The Tria! Court Should Have Granted Appellant’s Motion To Set Aside the Indictment The trial court should not have denied appellant’s motion to set aside the indictment due to numerousconstitutional defects. The defects, which include prosecutors’ unbridled discretion to seek death, the inclusion of inapplicable aggravating factors, the failure to designate sentencing factors as aggravating or mitigating, the absence of written findings, the absence of a beyond-a-reasonable-doubt burden of proof, the absence of proportionality review, the use ofrestrictive adjectives in mitigating factors but not aggravating factors, and the vagueness of aggravating and mitigating factorsall distort the jury’s weighing process and makefor a capital-sentencing schemethatis unreliable and arbitrary in violation of capital defendants’ basic rights. Accordingly, this Court is urged to reconsiderits position with regard to these constitutional issues. D. Motions for Procedural Protections Likewise, the trial court should not have denied appellant’s motion for procedural protections requesting 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. This Court is respectfully urged to reconsiderits pertinent precedents. 153 E. Motion To Declare Penal Code Section 190. 3 Unconstitutional This Court is urged to declare Penal Codesection 190.3 unconstitutional. Section 190.3 provides for a unitary list of aggra vating and mitigating factors that does not explain which are aggravating and which are mitigating, though the factors are susceptible to conflat ion. (See AOB280.) Capital defendants in California are therefore subjec t to an arbitrary and capricious death-sentencingprocess, in violation o f their basic rights. This Court is therefore urged to reconsiderits precedent s with regard to the constitutionality of section 190.3. F. Motions To Strike the Special Circumstance Due t o Constitutional Defects Following this Court’s precedent, the trial court denied appel lant’s motionto strike the torture-murder special circumstance on vagueness and overbreadth grounds. This Court is urged to reconsiderits p osition with regard to the constitutionality of the torture-murder special ci rcumstance in general. Moreover,the trial court also erred in denying the motion becaus e, in appellant’s particular case, there was little evidence supporting a nexus between the alleged torture and the homicidalact, but the court n onetheless issued CALJIC No. 8.81.18. (See AOB 280-281.) Respondent ’s interpretation of the evidence is unrealistic with regard to appell ant’s relative involvement in Genny’s death. (RB 240.) Furthermore, respondent’s argument merely presupposes that the jury did find a n exus betweenthe torture and the homicide; respondentfails to address the fact 154 that CALJIC No. 8.81.18 does not require a jury to find a logical relationship between the two events. (RB 239.) The use of CALJIC No. 8.81.18 was extremely problematic because it does not require the jury to find a nexus betweeneither the torture and the homicide, or the intent to torture and the homicide. The instruction merely juxtaposes the two elements ofthe torture-murder special circumstance, without any reference to the required temporalor logical relationship between the two elements. (See RB 240.) However, to find the special circumstancetrue, a jury must find the torture and homicide werepart of the sameintentional act of homicide; CALJIC No. 8.81.18 does not convey this requirement. The Eighth and Fourteenth amendments, andarticle I, sections 7, 15, and 17 require that there be a nexus between a tortuous act and a homicide in order for the act to properly constitute the torture-murder special circumstance. Because CALJIC No. 8.81.18 does not adequately convey this requirement, and becausethe facts surrounding Genny’s death were particularly susceptible to a finding that any torture inflicted by appellant werenot directly connected to her death, the trial court’s use of the instruction violated appellant’s rights to due process of law anda fair and reliable capital-sentencing determination, as well as his right to be free from cruel and unusual punishment. Accordingly, even if this Court doesnot find that the torture-murder special circumstance is vague and overbroadperse, appellant urgesthis Court to find that the trial court erred in denying the motionto strike the special circumstance in this case because it allowed the jury to find true the 155 special circumstance without having found any nexus between the torture and the homicide. G. Motion for a South Bay Jury Venire Appellant does not contendhe hasa right to have his jury drawn from a particular judicial district, as respondent claims. (RB 241.) Rather, at issue is the disparate mannerin which jury venire is conducted across the judicial districts in the county, whichresults in an overall decrease in the numberof minorities serving on juries across the county as a whole. The mannerin which jury venire was conductedin this case yielded a discriminatory result. It is uncontested that there is a disparity in the racial makeups of North and South County Judicial Districts, as well as a difference in the way jury venires are constructed. The North County Judicial District has relatively few underrepresented minorities, and juries for that district are drawn exclusively from North County. Onthe other hand, the South County Judicial District has a higher concentration of Latinos than the county as a whole, yet juries from thatdistrict are drawn ~ from the entire county rather than just the Southern district. The result is that juries from the South County judicial district contain fewer underrepresented minorities than there are in the district, but juries from the North County district would contain on average the same proportion of minorities as the district as a whole. Thus, fewer minorities serve on juries across the county as a whole. Because the jury venire policies across the twodistricts are different, and the result is that, across the whole county, fewer minorities are represented in juries, the disparity in jury-venire policy is fundamentally unfair and discriminatory. In this case, the discriminatory policy yielded a 156 jury pool that contained fewer Latino jurors than it would have otherwise, and appellant wastherefore not tried by a representative cross-section ofhis community. This error wasparticularly prejudicial to appellant because he is Mexican American.** Thus, appellant was deniedhis rights to equal protection, due process, and an impartial jury. H. Motion To Quash the Jury Venire Likewise, this Court is urged to reconsider its precedents with regard to the exclusion of non-citizen residents and former felons from jury service because doing so interfered with appellant’s rights to an impartialjury. I. Motions Challenging Discriminatory Prosecution Thetrial court should not have denied appellant’s motion for supplemental discovery of the charging criteria in capital cases and subsequent motion to dismiss the indictment for discriminatory prosecution. Appellant made a prima-facie showing ofdiscrimination that provided the requisite plausible justification for discovery, even under the heightened standard employed by this Court in People v. McPeters (1992) 2 Cal.4th 1148, 1170-1171. In McPeters, the defendant bolstered his motion to dismiss with statistics indicating a correlation between sentencing and victim race, but he did not include any factual comparison between his case and other cases. *8 A defendant’s race is not determinative in whetherthe jury venire in a particular case wasprejudicial. (See People v. Burney (2009) 47 Cal.3d 203, 225, fn. 6 [noting that a defendant need not be a memberof a minority group allegedly excluded from jury venire in order to challenge that group’s exclusion], citing People v. Johnson (1989) 47 Cal.3d 1194, 1217, fn. 3; People v. Wheeler (1978) 22 Cal.3d 258, 281.) 157 (Id. at p.1170.) This Court held that the failure to compare the outcome in the defendant’s case to the outcomes in other actual cases wasfatalto the defendant’s claim. (/bid.) In the present case, appellant did make the factual comparison required by the McPeters court by providing an analysis groundedin the facts of specific comparable cases rather than just statistics. To this end, appellant presented evidence that other child-abuse murders in San Diego County committed by white people were not prosecutedcapitally by comparing the facts and circumstances of specific cases. Appellant’s motion for supplemental discovery of charging criteria therefore had plausible justification, and the court should have granted the motion. Thetrial court dismissed the motion on the groundsthat appellant did not show discriminatory intent. (17 RT 1567-1573; 5 CT 1170-1171; 6 CT 1210.) However, capital-sentencing patterns that are discriminatory need notbe intentional for them to violate a defendant’s rights. So long as a district as a whole tends to seek harsher sentences for defendants of certain races,or to feel “moved”to leniency more often with defendants of someraces rather than others, any such disparate treatment would violate | equalprotection and should not be tolerated. Respondent says standard of review for this matter should be abuseofdiscretion. (RB 242.) However, the Court in McPeters engaged in an independentreview ofthe appellant’s evidence in that case to determine whetherthe plausible justification threshold had been met. (People v. McPeters, supra, 2 Cal.4th at 1170- 1171.) Appellant showedsufficient plausible justification under the McPeters standard; therefore, his motion for discovery should have been granted. 158 J. Appellant Is Entitled to a New Trial Thetrial court’s denial of appellant’s pretrial motions for South Bay Jury venire and of the motion to quash the jury venire constituted structural error, and the denial of appellant’s other pretrial motions warrant reversal of the death sentence. Respondent does not contend that the harmless-error analysis should be applied to the denial of the other pretrial motions. Because appellant’s was a close case with comparatively weak evidence against him, and because the features in the capital-sentencing scheme that appellant challenged in the pretrial motions increased the likelihood of a death verdict nevertheless, this Court is respectfully urged to grant appellant a newtrial. 159 XVII. THE TRIAL COURT COMMITTED SEVERAL PREJUDICIAL INSTRUCTIONAL ERRORSAT THE GUILT PHASE Thetrial court’s several instructionalerrors at the guilt phase were prejudicial, and require that appellant be given a newtrial. A. The Court Erred When It Refused To Instruct the Jury that Failing To Stop Somebody From Committing Murder Is Not a Crime Thetrial court’s refusal to give the requested instruction violated appellant’s right to a pinpoint instruction. Respondent does not deny t hat the instruction accurately stated the law or had adequate evidentiary support to warrant the instruction. Respondentalso does not denythat the instruction pinpointed appellant’s theory of defense: that appellant was guilty of child endangerment butnot murder. Citing CALJIC No. 3.01 as being substantially similar to appellant’s proposed pinpointinstructio n, respondent merely argues that the instruction would have been duplica tive. (RB 244.) However, respondent’s argument is unconvincing for sever al reasons. First, CALJIC No. 3.01 does not adequately convey the law behind appellant’s theory of defense. Although the instruction doesstate that “mere presenceat the scene ofa crime... [or] mere knowledge that a crime is being committed and the failure to prevent it does not amountto aiding and abetting” (see RB 244), the instruction is not broad enoughto encompass appellant’s whole theory of defense. Contrary to what respondent argues, CALJIC No. 3.01 did not “explicitly”tell the jury that appellant wasnot“culpable” for any failure to prevent a crime; it merely 160 stated he was not guilty of one possible crime, aiding and abetting, whichis only one of a whole panoply of crimes that did not include the distinct offenses of murder or child endangerment. The jury had no wayto know, based solely on CALJIC No. 3.01, that any moral culpability arising out of appellant’s failure to act did not translate into a conviction for murder, or that it could translate only into a conviction for child endangerment. The jury only knew that a failure to act could nottranslate into a conviction of aiding and abetting. Thus, CALJIC No. 3.01 was not duplicative, and did not sufficiently convey appellant’s theory of defense. Secondly, a criminal defendant’s right to present a defense must override a judicial preference of avoiding potentially duplicative instructions. The right to present a defense and to have a jury considerthat defense are essential principles in the criminal justice system and should not be abrogated byineffective jury instructions. Respondent does not provide any compelling reason to subvert appellant’s right to have the jury consider his defense. Therefore, this Court should find the instruction was erroneously refused. B. The Court Erred When It Refused To Instruct The Jury with Respect to Veronica Gonzales’s Consciousnessof Guilt Appellant’s proposed instruction would have pinpointed appellant’s theory of defense. Moreover, the instruction correctly stated the law, was not duplicative, and had sufficient evidentiary support. The presence of an instruction on appellant’s consciousness ofguilt but not of Veronica’s created an imbalancethat vitiated the effectiveness of the adversary system and violated appellant’s state-law and constitutional rights to present a 161 defense. Thetrial court’s rationale for refusing the instruction was that the jury could not determine Veronica’s guilt, and so the instruction was inappropriate. (RB 246; 62 RT 801 1-8012.) Theinstruction should not have been refused on the groundsstated by the trial court. Appellant was not requesting that the jury engage in proceedings to determine Veronica’s guilt. If every court employed this reasoningto decide whether to admit third-party culpability evidence , no evidenceofthird-party culpability would ever be admissible. However, it is well-established that evidence ofthird-party culpability is admissible s o long as it is capable ofraising a reasonable doubt as to the defendant’ s guilt. (People v. Hall (1986) 41 Cal.3d 826, 833-834.) Although juries are not formally required to determine the guilt of a person whois not a def endant, introducing evidenceofthird-party culpability necessarily requires the jury to assess the culpability of a person whois not a defendant in that cas e. Therefore, the trial court erred in refusing the instruction. Respondent concedesthat a defendant may introduce evidence of third-party culpability if it raises a reasonable doubtas to the defendan t’s guilt. Despite recognizing that Veronica’s culpability would in fact present a reasonable doubtas to appellant’s guilt, respondentclaimsthat Ve ronica’s consciousness of guilt was not “material or determinative” of appellan t’s culpability. (RB 247-248.) That assertion cannot withstand scrutiny. The crux of appellant’s defense was that Veronica and not he wasthe pr imary perpetrator and mastermind of Genny’s homicide. (See AOB ClaimsI -III.) Therefore, evidenceofher relative involvement and consciousnessof gu ilt were relevant and crucial in raising a reasonable doubtas to appellant' s culpability. 162 There is absolutely no basis for respondent’s inference that Veronica’s consciousnessof guilt could not constitute evidence of third- party culpability, especially because in this very case the jury wasinstructed that appellant’s own consciousnessof guilt could be evidenceofhis guilt. (See AOB 291.) Veronica’s consciousness of guilt would in fact have introduced a reasonable doubtas to appellant’s culpability, and the instruction to this end pinpointed appellant’s theory of defense. Therefusal of the instruction prevented the jury from considering this importantfactor, and accordinglythe trial court should not have refusedto issueit. C. The Court Erred By Giving CALJIC No. 2.04 Theprosecution did not present evidenceattrial that sufficiently supported the inference that appellant attempted to persuade IvanJr. to testify falsely, and the trial court erred by giving CALJIC No.2.04. Respondent’s interpretation ofthe facts surroundingIvan,Jr.’s testimonyis illogical. Appellant told Ivan Jr. that Genny had stopped breathing, which wasa true statement and an age-appropriate wayto tell the child that his cousin had died. There is no connection betweenthis statement and the veracity of Ivan Jr.’s testimony. Likewise, the fact that Ivan Jr. testified that he wasafraid of his father spoke only to the nature ofhis parents’ discipline of his children. It is natural and to be expected that a child would fearhis or her parent’s disapprovalfor testifying against them. It wasfor this very reason that the trial court found Ivan Jr. unavailable to testify at his parents’ trials. Any inference that these two normalresponses could possibly show that appellant attempted to persuade Ivan Jr. to falsely testify is unfounded, and the court should not have given CALJIC No. 2.04. 163 Dz. The Court Erred In Giving CALJIC No. 8.81.18 Because the Instruction Required No Nexus Between the Alleged Torture or Intent to Torture and the Homicide The trial court should not have given the jury the instructions contained in CALJIC No.8.81.18 because the instructions omitted an essential elementof the special circumstance: a nexus betweenthe torture and the homicide. (See ante at pp. 154-156; AOB 280-282.) In so doing, the court deprived appellantofthe right to have a jury decide whether the prosecution proved every element beyond a reasonable doubt. This constituted a violation of appellant’s substantial rights, and as such it was not forfeited upon appellant’s failure to objectattrial. The instruction in this case did not pass constitutional muster under the facts of appellant’s case, where the jury was faced with determining appellant’s level of involvement in a homicide where there had also been a prior situation of child abuse unrelated to the homicidal act. Contrary to what respondentargues, appellant’s methodsof discipline did not implicat e him in Genny’s murder. (RB 251.) In fact, the evidence tended to show that appellant was only marginally involved in disciplining Genny, and tha t Veronica wasthe primary disciplinarian in the relationship. (AOB 42-47.) Respondent does not claim that appellant’s involvement amountedto an y more than that, and merely says the evidence showed Genny “was tortured ” and “the torture escalated leading up to her murder”; that “Genny’s murde r involvedtorture” because she “wasforcibly held in a scalding bath.” (RB 251.) Respondentis correctin using the passive tense in this case, because there wasinsufficient evidence to show any nexus between appellant's acts of abuse and Genny’s death. However, the jury was not free to conclude this because CALJIC No. 8.81.18 took the question outof the jury’s hands. 164 Underthe facts of this case, the court should have instructed the jury with an amended CALJIC No. 8.81.18 to specifically include the nexus requirement. The court’s failure to do so gavethe jury free rein to determine appellant’s level of culpability based on unrelated events, which impermissibly broadened the scope of the torture-murderspecial circumstancein violation of appellant’s rights under the California and United States Constitutions. E. A Series of Guilt-Phase Instructions Undermined the Requirement of Proof Beyond a Reasonable Doubt in Violation of Appellant’s Rights to Due Process, a Trial by Jury, and Reliable Verdicts The instructions on circumstantial evidence under CALJIC Nos. 2.02, 2.21.2, 2.22, and 2.51 undermined the requirementofproof beyond a reasonable doubt. Constitutionally deficient reasonable doubtinstructions require reversal of a conviction. (E.g., Sullivan v. Louisiana (1993) 508 U.S. 275, 278.) Moreover, jury instructions are constitutionally deficient if it is reasonably likely that the jury understoodthe instructionsto allow a conviction based on less than a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 6.) The plain meaningofthe instructions as a whole effectively vitiates the reasonable-doubt standard, evenif the jury is also given an instruction that generally states that the burden proofis the reasonable-doubt standard. This Court is respectfully urged to reexamine the plain meaning andpractical effect of the jury instructions at issue here and to find that the instructions do not pass constitutional muster. It is axiomatic that an inquiry into the meaningof a legal text begins with the plan language ofthe text. (E.g., Robinson v. Shell Oil Co. (1997) 519 U.S. 337, 340.) If the plain language is clear and unambiguous, then 165 the judicial inquiry into its meaning ends. (Ibid.) This canon of interpretation applies to the full range oflegal texts. (See, e.g., Barnhar t v. Sigmon Coal Co. (2002) 534 U.S. 438 [applying the canon toa statute]; Philadelphia Eagles Football Club, Inc. v. City ofPhiladelphia (Pa. 2003) 823 A.2d 108, 125, fn. 25 [applying the canonto a contract], Hymanv. Nationwide Mut. Fire Ins. Co. (11th Cir. 2002) 304 F.3d 1179, 1186 | [applying the canon to an insurance policy].) This Court in People v. Jennings (1991) 53 Cal.3d 334, 386 recognizedthat this first canon of interpretation applies to jury instructions, and assessed the “plain meanin g” of CALJIC No.2.01. However,the Court in Jennings reacheda resultthatis at odds with the plain meaning of the language of CALJIC 2.01. Although the instruction reads “if ... one interpretation of [circumstantial] evidence appears to you to be reasonable,” that is the interpretation the jury mus t accept, the Court foundthat the phrase “appears reasonable” was not equivalent in meaning to the phrase “is apparently reasonable.” However ,. the term “appears” should have been accordedits plain meaning. There i s no semantic difference between the active and passive variations of the same root word, “to appear,” in this context. According to the Uniform Statute and Rule Construction Act of 1995 § 2, “{u]nless a word orphrase is defined in the statute or rule being construed, its meaning is determined by its context, the rules of grammar, and commonusage.” The common meaning ofthe term “appears”is “to seem or look to be; to seem likely.” (American Heritage Dict. (4th ed. 2006), p. 86, senses 3 and 4.) Likewise, there is no grammatical difference between the active verb “appears”andthe inactive/adjectival form “is 166 apparently.” It follows that there is no functional difference betweenthe phrases “the evidence appears reasonable” and “the evidence is apparently reasonable.” It remains that a mere “appearance”of plausibility is not the same as the near-certitude that characterizes the reasonable-doubtstandard. (E.g., In - re Winship (1970) 397 U.S.358, 364.) Thus, the Court should not have concludedthat “[nJo reasonable juror would have interpreted these instructions to permit a criminal conviction where the evidence shows defendant was “apparently” guilty, yet not guilty beyond a reasonable doubt” (People v. Jennings, supra, 53 Cal.3d at p. 386), because a finding that the evidence against a defendant is “apparently reasonable” necessarily leads to a conviction of a defendant whois “apparently guilty.” This lesser burden of proof does not meet constitutional standards for a conviction, and this Court is urged to reconsider its prior rulings upholding these instructions. The Court also found that even if instructions such as CALJIC 2.01. do erode the burden ofproof, the existence of the more general reasonable- doubtinstruction sufficiently instructed the jury on the reasonable-doubt standard for every element and finding. (See People v. Crittenden (1994) 9 Cal.4th 83, 144 [holding that CALJIC 2.90 “saves”the deficient instructions.]) This reasoningis likewise flawed becauseit runs contrary to the well-established principle of legal textual interpretation that the more specific principles are to be read as exceptionsto the more general. (See, e.g., Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1056 [holding specific provision takes precedence over conflicting general provision].) 167 The Court in Crittenden concludedthat the general instruction regarding the reasonable-doubtstandard, as given in CALJIC 2.90, sufficiently trumpsthe lesser standards of doubtset out in instructions such as CALJIC 2.02, 2.21.2, 2.22, and 2.51. (People v. Crittenden, supra , 9 Cal.4th at p.144.) However, this reasoningis flawed as a matter of common sense and as a matter oftextual interpretation. The standardsof proofset out in instructions like 2.02, 2.21.2, and 2.22 contemplatespecific situations, such as the believability of circumstantial evidence, witness testimony, an alleged mentalstate,etc. (AOB 296-304.) Therefore , such instructions will be read as exceptions to the morespecific rule that a defendant’s guilt is to be proven beyond a reasonable doubt. For example, when jurors are given both CALJIC Nos. 2.90 and 2.02, they are first to apply the generalrule that every element must be proven beyond a reasonable doubt; and then they will apply the specifi c rule that in determining the defendant’s mentalstate, they are to choose “whichever interpretation appears more reasonable.” Thus, the jury is instructed on a lesser standard of prooffor the specific issue of mentalstate, even whereit is a required elementof the offense. It is not credible to ar gue that the jury will apply a reasonable-doubt standard even whenitis specifically instructed to apply a different standard for a particular issue. Because the trial court in this case gave guilt-phase instructions that similarly undermined the burden ofproof, appellant’s conviction was no t based on a finding of each element beyond a reasonable doubt. Accordingly, this Court is urged to reconsiderits prior rulings upholding these defective instructions. 168 F. Appellant Is Entitled to a New Trial Theseerrors individually and cumulatively require that appellant be given a newtrial. Appellant presented significant evidence to support his theory of defense, that he perpetrated noneofthe abusive acts and, at most, failed to stop Veronica from inflicting some of them. None of the jury instructions adequately conveyed this theory of defense. If the jury had been instructed with appellant’s requested instructions,it is reasonably probable that the jury would not have convicted him offirst degree murder. (People v. Watson, supra, 46 Cal.2d at p. 836.) In fact, it is quite likely the jury would have acquitted appellant of first degree murder, considering that his was a close case and the jury took a full seven days to reach its verdict. Furthermore, respondent cannot show that the constitutional errors were harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S.at p. 24.) Thetrial court’s refusal to issue appellant’s requested instructions wasstate-law error and a violation of appellant’s federal constitutional rights. Accordingly, the conviction, special-circumstance finding, and death judgment must be vacated. 169 XVIII. THE TRIAL COURT COMMITTED SEVERAL PREJUDICIAL INSTRUCTIONAL ERRORS AT THE PENALTY PHASE A. The Court Erred When It Refused To Instruct the Jury Which Capital-Sentencing Factors Could Be Either Aggravating or Mitigating and Which Factors Could Only Be Mitigating Appellant urges this Court to reconsiderits ruling in People v. Ramirez (2006) 39 Cal.4th 398, 469 that CALJIC No. 8.85 adequat ely ensures a reliable capital-sentencing determination. CALJIC No.8. 85 does not sufficiently instruct the jury on the law, and it thereby gives t he jury free rein to consider impermissible factors, or to weighfactors in an impermissible manner. For example, factor(d) instructs the jury to consider whether a defendant was underthe influence of extreme mental or emotio nal disturbance, whichis afactual determination, butit does not indic ate the | legal implication ofa finding that the defendant was emotionally disturbed at the time of the crime. (See CALJIC No. 8.85.) This ambiguit y is problematic because legally, such emotional disturbance may onl y be mitigating. (E.g., People v. Smith (2005) 35 Cal.4th at p. 352; Peo plev. Montiel (1993) 5 Cal.4th 877, 944; People v. Whitt (1990) 51 Cal. 3d 620, 654; People v. Ghent (1987) 43 Cal.3d 739, 776, People v. Boyd (1985) 38 Cal.3d 762.) However, without an instruction to this effect, a laype rsonis just as likely to improperly weigh emotional disturbance as aggrav ating, for example, as evidenceof a defendant’s criminal propensity. (See, e.g ., People v. Smith, supra, 35 Cal.4th at pp. 352-356 [holding a defenda nt’s 170 alleged propensity as a “sadistic pedophile”is relevant aggravating evidence if related to the circumstances of the crime.]) Evidence of mental disturbance mayeasily be interpreted as evidence of future dangerousness or criminal propensity, and so a jury cannot be expected to know the difference without properinstruction. Thus, this Court’s inference that “no reasonable juror would interpret emotional disturbance as aggravating”is unrealistic. (/d. at p.353 [citation omitted].) This fundamental flaw extends to other factors that CALJIC No. 8.85 leaves unlabeled, such as factor (f) or (g). Many factors enumeratedin CALJIC No. 8.85 are susceptible to multiple moral interpretations—for example, factor (f) could lead a jury to find a defendant wasless culpable because he believed his actions to be justified; or alternatively, that he is more dangerous because he has a skewed notion of whatactions are morally justified; factor (g) could lead a jury eitherto find that a defendantis less culpable because he was not the mastermind of the crime with which he was charged;oralternatively, that he is easily led to participate in crime, and therefore is dangerous to society. Laypersonsare likely to interpret manyofthe factors outlined in CALJIC No. 8.85 as either aggravating or mitigating, though the factors may legally only weigh in favor of mitigation. Because CALJIC No. 8.85 does not sufficiently inform jurors ofthe legal implications of each factor, the jury’s discretion is not sufficiently constrained by specific standards; the resulting verdict is therefore random and capricious. Indeed, in Tuilaepa v. California, Justice Blackmun demonstrated that factor (a), which instructs the jury to consider the “circumstances ofthe crime,” leaves jurors free to find a whole gamut of circumstancesto be 171 aggravating,including those that should legally only be mitigating.*? (Tuilaepa v. California (1994) 512 U.S. 967, 986-987 [dis. opn. by Blackmun, J.]) Justice Blackmun made similar objections to factor(i) [defendant’s age], as well as the commonyet improper inference that the absence ofa mitigating factoris in itself an aggravating factor. (/d. at pp. 990-991 [dis. opn. By Blackmun,J.].) Unlike Justice Blackmunin his dissenting opinion, the Court in Tuilaepa did not address the particular issue of whetherjury instructions must differentiate between mitigating and 39 In support of his proposition, Justice Blackmun drawsheavily from California cases where juries were free to weigh virtually anything aboutthe offense as aggravating: “Prosecutors have argued, and jurors are free to find, that ‘circumstancesofthe crime’ constitutes an aggravating factor because the defendantkilled the victim for some purportedly aggravating motive, such as money, or because the defendant killed the victim for no motive at all; because the defendant killed in cold blood, or in hot blood; because the defendant attempted to concealhis crime [footnote], or made noattemptto concealit; because the defendant madethe victim endure the terror of anticipating a violent death, or because the defendant . killed without any warning; and because the defendant had a prior relationship with the victim, or because the victim was a complete stranger. Similarly, prosecutors have argued, and juries are free to find, that the age of the victim was an aggravating circumstance becausethe victim was a child, an adolescent, a young adult, in the prime of life, or elderly; or that the methodofkilling was aggravating, because the victim was strangled, bludgeoned, shot, stabbed, or consumedbyfire; or that the location of th e killing was an aggravating factor, because the victim waskilled in her own home,in a public bar, in a city park, or in a remote location. In short, because neither the California Legislature nor the California courts ever havearticulated a limiting construction ofthis term, prosecutors have been permitted to use the ‘circumstances ofthe crime’ as an aggravating factor to embrace the entire spectrum of facts presentin virtually every homicide—something this Court condemned in Godfrey v. Georgia (1980), 446 U.S. 420.” (Tuilaepa v. California (1994) 512 U.S. 967, 986-988 (dis. opn. by Blackmun,J.,][citations omitted.]) 172 aggravating factors; rather, the Court held that each factor in “weighing” states such as California need not have a numeric “weight” attached to them to meet constitutional standards. (/d. at 978-979.) Thus, the United States Supreme Court has not foreclosed the possibility that the Eighth and Fourteenth Amendments bar Penal Code section 190.3 from allowing juries to consider legally exculpatory factors to be aggravating. In this case, this Court should hold that the failure to demarcate which factors are aggravating and mitigating renders California’s capital-sentencing scheme unreliable, arbitrary, and fundamentally unfair. Ifjury instructions in a capital case do not sufficiently inform the jury of the legal weight of each factor, there is no way to ensure a death verdict passes constitutional muster. This is especially true because evidence ofjurors’ subjective-reasoning processes is normally inadmissible to impeacha verdict; so if a verdict was based on a weighing offactors in an impermissible manner, there is no way to accessthis information and give the defendantrelief. (Evid. Code, § 1150.) The only way to avoid this dilemmais to ensure juries are adequately instructed on the legal significance of each factor they are to weigh. Thereis little cost to requiring such an instruction, and the benefit—a morereliable capital- sentencing scheme—clearly is worthwhile. Theinstructions as they currently stand run therisk of an arbitrary and capriciousresult, in violation of capital defendants’ constitutional rights; providing clearer jury instructions is the remedy. Moreover, a revised version of CALJIC No. 8.85 to label each factor as either aggravating or mitigating would not be duplicative, as respondent claims (RB 254), because the jury has no other way to know which factors are aggravating and which are mitigating. 173 Forthe above reasons, this Court should reconsiderits position with regard to labeling of aggravating and mitigating factors. B. The Court Erred When It Refused Appellant’s Modified Instructions Pertaining to the Catch-All Mitigating Factor Likewise, the trial court should have delineated appellant’s non- statutory mitigating factors. Appellant’s proposed instruction on non- statutory mitigating factors constituted a pinpoint instruction on his theory of defense; appellant was entitled to that instruction, becauseit correctly stated the law, was supported by the evidence, and was not duplicative. (See ante, at pp. 160-163.) Moreover, the United States Supreme Court held in Hitchcock v. Dugger (1987) 481 U.S. 393, 399 thata trial court errs if it does not allow the consideration of non-statutory mitigating factors. In appellant’s case,the trial court denied the instructions that would have informed the jury of permissible non-statutory mitigating factors. Asrespondentpoints out, the trial court did issue CALJIC No. 8.85, which instructed the jury that they could consider other circumstances that. extenuate the gravity ofthe situation. (RB 258.) However, CALJIC No. 8.85 did not convey the non-statutory factors, including compassion and mercy, that did notpertain to circumstances of the crime and weretherefore not covered by CALJIC No. 8.85. Furthermore, the compoundstructure of factor (k) renders the language pertaining to appellant’s “character or record” appearas thoughit is subsidiary to the initial phrase “any other circumstance,” whichis the most salient language of factor (k). The structure of CALJIC No.8.85(k) thus makes it appear as though appellant’s character or record is a sub-category of “other circumstances”ofthe crime; the language “whetherornotrelated to the offense”is not clear enough to 174 overcomethe fact that the two discrete factors, the circumstancesof the crime and appellant’s character, are fused into one single factor. The confusion that the amalgamation of two discrete factors causes is particularly invidious because evidence about a defendant’s character or record generally comprises all or most of the penalty-phase evidenceat a capital trial. This was the case in appellant’s penalty trial. Without instructing the jury to consider the range of mitigating evidence presented at the penalty phase, appellant was denied full consideration of the mitigating evidence. Accordingly, the trial court should not have refused to issue appellant’s proposed modification of CALJIC No.8.85. OF The Court Erred WhenIt Refused to Instruct the Jury That It Should Not Limit Its Consideration of Mitigating Evidence to the Delineated Factors A defendant’s background comprisesa significant portion of mitigating evidence presented at the penalty phase. CALJIC No.8.85 permits the jury to consider the circumstances of the crime as well as a defendant’s character and record, but it does not include language pertaining to a defendant’s background, such as family dynamics, medical history, and upbringing. Appellant’s proposed instruction No. 3 would have informedthe jury that it must consider such evidence as well as any other mitigating evidencethat is relevant to appellant’s case. The instruction did not define mitigation too broadly (69 RT 8822-8825), but accurately conveyed the proper scope of mitigation. Accordingly, the court should not have rejected the instruction. 175 D. The Court Erred When It Refused To Instruct the Jury That It May Return a Life Sentence for Any Reason The jurors should have beeninstructed that they are permitted to consider sympathy, empathy and compassionarising from the mitigating evidence, as in Defendant’s Proposed Instruction No. 7. These instructions would not have been duplicative of factor (k) of CALJIC No.8.85,as respondentcontends (RB 260), because factor (k) only references the “circumstances” of the crime and the defendant’s “character or record”; it does not give the jury license to consider any sympathy, empathy, or compassionthey likely felt as a result of much ofthe mitigating evidence. Accordingly, the jurors may not have known they were permitted to return a verdict oflife without the possibility of parole if they felt it was the right thing to do in appellant’s case. Considering the extensive mitigating evidencethat appellant put forth, the court should not have rejected Defendant’s Proposed Instruction No.7. E. The Court Erred WhenIt Instructed the Jury That It Need Not Be Unanimousin Finding Aggravating Factors" Capital defendants are entitled to greater constitutional protections than noncapital defendants, and they have a constitutionalright to a fair and reliable capital-sentencing determination. It is crucial to the reliability of a capital-sentencing scheme thatthe verdict be supported by unanimity as to every element, special circumstance, and aggravating factor. This Court should therefore reconsiderits rulings in People v. Prieto (2003) 30 Cal.4th 226, 275 and People v. Taylor (1990) 52 Cal.3d 719, 749, and find that capital defendantsare entitled to have a jury find every aggravating factor unanimously. 176 F. The Court Erred When It Refused To Give a Lingering- DoubtInstruction at the Penalty Retrial Thetrial court gave a lingering-doubtinstruction at the penalty phase of the first trial (10 CT 2302), and it should have done soat the penalty retrial. As respondent points out, the court’s rationale for not giving the lingering-doubtinstruction to the penalty retrial jury was that appellant had already been found guilty of murder and the special circumstance had been found true. (RB 262.) However, this reasoning was inconsistent, because appellant had also been found guilty of murderby the timethe first penalty jury wasto deliberate on the proper sentence. There was no difference in the soundnessof appellant’s conviction between the time of the first penalty trial and the time of the penalty retrial. The only difference then wasthat the first jury could have had a “lingering doubt” because it was composed of the samejurors that had found appellant guilty at trial; whereas the penalty retrial jury could only be said to have a “skepticism”as to the soundnessofappellant’s conviction. However, while the first jury was instructed that they were permitted to | considertheir lingering doubts, the penalty retrial jury was not. In appellant’s case, the circumstances of Genny’s death left much doubtas to appellant’s participation, and the first penalty jury was in a better position to gauge the significance of lingering doubtas to his culpability. Because the second jury did not have the opportunity to form lingering doubts themselves, but were merely informed of appellant’s conviction, and because the secondjury wasnot given a lingering-doubt instruction, the penalty retrial jury was significantly more likely to issue a death sentence 177 than the first jury. Accordingly, the court should have issued the lingering- doubt instruction to both penalty juries, not just the first one. Respondentclaims that the court issued a modified lingering-doubt instruction. (RB 262.) However,the instruction respondent cites merely told the jurors that they were to “weigh” the “particular circumstances of the crime and the defendant’s involvement,” notthat they were permit ted to consider any skepticism or lingering doubt they had as to the circumstances and level of appellant’s involvementin mitigation. (12 CT 2661.) This language in no way constituted an instruction on lingering doubt. In appellant’s case, the lingering-doubt instruction wascrucial because this was a close case andlingering doubts regarding the circumstances of the crime could have weakenedthe case against him, an d so the trial court should have issued the instruction to the penalty retrial jury as it did for the first penalty-phase jury. G. The Court Erred When It Amended CALJIC No. 8.88 To Instruct the Jury That It Must Return a Death VerdictIf. Aggravation So Substantially Outweighs Mitigation That Death Is Warranted Thetrial court’s amended version of CALJIC No.8.88 impermissibly created a mandate to impose the death sentence undercertai n circumstances. Respondent’s arguments that the phrase added to CALJIC No.8.88,“instead oflife withoutpossibility of parole,” undermines the mandatory language of “shall” is unpersuasive. (RB 264.) Likewise, appellant does not argue that the modified instruction told the jury to weigh “mechanically”the aggravating and mitigating factors to yield a particular result, rather appellant asserts that the jury was instructed that a death sentence was mandatory if the factors weigh out in a particular way. The 178 amendedinstruction was not merely “confusing” as to how to weigh aggravating and mitigating factors; it was constitutionally flawed becauseit established a mandatory verdict of death after a particular set of findings, whichis categorically impermissible. Thus, the court erred in instructing the jurors with its amended CALJIC No.8.88. H. The Court Erred When It Gave CALJIC Nos. 8.85 and 8.88 Despite Their Fundamental Flaws The serious flaws in CALJIC Nos. 8.85 and 8.88 make California’s capital-sentencing scheme unreliable and inconsistent. Capital defendants must be afforded more procedural protections, not fewer, than other criminal defendants. Although the capital-sentencing determinationis concededly normative, the discretion given the jury should not be unduly expandedin a waythat allows for freakish and arbitrary results. Jury instructions must provide specific parameters to guide jurors’ discretion, especially at the penalty phase of a capital case where every factoris crucial. The excessive breadth of factor (a), the failure to impose any burden ofproof, the failure to instruct on the presumptionoflife, the impermissibly vague penalty-phase determination, and the disparity between capital and non-capital sentencing standardsare all serious flaws in the capital-sentencing scheme that weigh heavily in favor of execution and circumnavigate procedural safeguards. This Court is urged to revisit its precedents with respect to these flawed jury instructions. I. AppellantIs Entitled to a New Trial Appellant presented significant evidence that he did not participate, or participated only minimally, in the offense with which he was charged. In addition, appellant had a nonviolent character and life-long history of 179 law-abiding conduct. The jury should have beenable to give full consideration to every relevant mitigating factor, but the series of penalty- phaseinstructions impededthe jury’s ability to do so. None ofthe errors were harmless, and appellant’s death sentence must be vacated. 180 XIX. THE TRIAL COURT IMPROPERLY DENIED APPELLANT’S MOTION TO MODIFY THE DEATH SENTENCE WHENIT DENIED THE DILLON MOTION TO MODIFY, THEREBY VIOLATING HIS CONSTITUTIONAL RIGHTS AND RESULTING IN REVERSIBLE ERROR Appellant’s death sentenceis disproportionate to his individual culpability. He had neither a criminal record nor a history of violence. In addition, the evidence of appellant’s participation in perpetrating the offenseor ofhis intentto kill is flimsy. In contending that the death sentence is not disproportionate, respondentattributes to appellant every act committed by the perpetrator. (RB 271.) Respondent’s interpretation ofthe events lacks support in the record. The evidence that appellant committed someof the criminal acts is weak. Evidence that appellant committed all of those acts does not exist. Becausethe death sentence is disproportionate,the trial court erred in denying the automatic and Dillon motions to modify the sentence. Moreover, the disproportionate death sentence infringes appellant’s Eighth and Fourteenth Amendmentrights. 181 XX. CUMULATIVE ERROR DEPRIVED APPELLANT OF A FAIR TRIAL AND A RELIABLE PENALTY RETRIAL Althoughappellantis not entitled to a perfect trial, he is entitled to a fair trial. Appellant did not receivea fairtrial at either the guilt pha se or the penalty retrial. Reversalis required unless the cumulative effect of all the errors were harmless beyond a reasonable doubt. (Chapmanv. Cali fornia (1967) 386 U.S. 15, 24.) Appellant never receiveda fair trial becau se of the plethora of synergistic errors. In the Opening Brief, appellant expl ained how the panoplyof errors combined to deprive him a fair trial. (AOB 332- 335.) Notably, respondent made no attemptto rebut appellant’s ana lysis. (ARB 271-272.) This is not a case in which the errors were minor or unrelated andthus unlikely to exceed the sum oftheir parts. The combinationoferrorsat the first trial and penalty retrial worked to gether to infringe appellant’s rights to a fairtrial and reliable penalty determin ation. 182 XXI. CALIFORNIA’S USE OF THE DEATH PENALTY VIOLATES INTERNATIONAL LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTS Appellant requests this Court to reconsiderits precedents and conclude that capital punishmentviolates international law and is unconstitutional. (See © People v. Schmeck, supra, 37 Cal.4th at p. 304.) 183 and death judgment mustbe reversed. Dated: CONCLUSION Forthe foregoing reasons,the conviction,special circumstance finding, November 12, 2009 Respectfully submitted, MICHAELJ. HERSEK State Public Defender (° y v CRAIG BUCKSER Deputy State Public Defender Attorneys for Appellant 184 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE8.630(b)(2)) I, CRAIG BUCKSER, am the Deputy State Public Defender assigned to represent appellant IVAN JOE GONZALESinthis automatic appeal. I conducted a word countofthis brief using our office’s computer software. Onthe basis of that computer-generated word count,I certify that this brief is 47,910 wordsin length. DATED: November12, 2009 (gh CRAIG BUCKSER Attorney for Appellant DECLARATION OF SERVICE Case Name: PEOPLE vy. IVAN JOE GONZALES Case Number: Supreme Court No. Crim. 8067353 I, SAUNDRA ALVAREZ,declare that I am over 18 yearsof age, and nota party to the within cause; that my business addressis 801 K Street, Suite 1100, Sacramento, California, 95814; that I served a true copy ofthe attached: APPELLANT’S REPLY BRIEFand APPLICATION FOR LEAVE TO FILE APPELLANT’S REPLY BRIEF EXCEEDING 47,600 WORDS on eachof the following, by placing same in an envelope addressed respectively as follows: Annie Featherstone Fraser Genaro C. Ramirez Office of the Attorney General Office of the District Attorney P.O. Box 85266 330 West Broadway, suite 1220 San Diego, CA 92186-5266 San Diego, CA 9112 Ivan Joe Gonzales (Appellant) Liesbeth Van Den Bosch P.O. Box K82604 Departmentof the San Quentin State Prison Alternate Public Defender San Quentin, California 94964 765 Third Avenue, #305 Chula Vista, CA 91910 Vicky Hennessy Chief Death Penalty Appeals Clerk . Robert Isaacson San Diego Superior Court P.O. Box 508 220 W. Broadway, Room 3005 Solana Beach, CA 92075 San Diego, CA 92101 Hon. Michael D. Wellington Jose Varela San Diego Superior Court Marin County Public Defender 220 W. Broadway, Dept., 55 3501 Civic Center Drive, #139 San Diego, CA 9210 San Rafael, CA 94903 Each said envelope was then, on November 12, 2009, sealed and deposited in the United States mail at Sacramento, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoingis true and correct. Signed on November 12, 2009, in the City and County of Sacramento, California. SauWii SAUNDRA ALVAREZ
