PEOPLE v. THOMAS (KEITH TYSON)

Appellant's Opening Brief

Cal.January 31, 2007

___ MECOURT COPY E COURT Copy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case Number $067519 V. KEITH TYSON THOMAS, Ee Defendant and Appellant. ©eS i Alameda County Superior Court Case No. 118686B Honorable Alfred A. Delucchi, Judge APPELLANT’S OPENING BRIEF SUPREME COURT - Fy ‘ ta 4 eAn? JAN 3 4 200! of a Le 1 ierFO nom god oy gi a pao Ulerrk rredefric a We ee BE ( elt Xa spNBEREETdecease nce eee DEPUTY David Joseph Macher Atiorneyat Law State Bar Nurnber: 134205 P.M.B. 298 40485 Murrieta Hot Springs Road Murrieta, California 92563 (951) 677-7437 [voice] (951) 677-3937Ifacsimile} dmacher@verizon.net [email] Appellate Counsel for Keith Tyson Thomas IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. KEITH TYSON THOMAS, Defendant and Appellant. Case Number $067519 Alameda County Superior Court Case No. 118686B Honorable Alfred A. Delucchi, Judge APPELLANT’S OPENING BRIEF. David Joseph Macher Attorney at Law State Bar Number: 134205 P.M.B. 298 40485 Murrieta Hot Springs Road Murrieta, California 92563 (951) 677-7431 [voice] | (951) 677-3937 [facsimile] dmacher@verizon.net [email] Appellate Counsel for Keith Tyson Thomas TABLE OF CONTENTS TABLE OF AUTHORITIES.........ccccccecccecesccseceseescsseveseereeseessnens xi INTRODUCTION... ceccceeseecceecsescsceessecssnsessccaeeeausreveaseteentreeatens 1 JURISDICTIONAL STATEMENT.........0..cceccecccceesecescessesssnerseeeeeterees 3 STATEMENTOF THE CASE .........ccccccccccccsecesccescessecsseseseesrecarersareanes 3 STATEMENT OF FACTS: GUILT PHASE........cec ce eeeeeceeeeseceeees7 (1) The Death of Francia YOUNG...........0cccc ec cccesecsececesneececsesesecssevens 7 (2) Sebrena Flennaugh Robbery... socsaaanetesesessabecsseeesssessseersoeuueesuinees 11 (3) Appellant’s Arrest and Interrogation......00..000ccccceceeseecereeeeeecees 16 (4) Ballistics Evidence....... | bone e esa eeeeereeeeeeeaaacaeseeeseceeceeseceecsseeuansuueeenrs 19 STATEMENT OF FACTS: PENALTY PHASE .......0....c.ccccceeeeeeesees 19 (1) The Case-in-Aggravatiion ..........cceccccceececseseseceereessevsseeeetnecnes 19 (A) Robbery of ConstanceSilvey-White ......0....00 cece ecccceeessecesensees 19 (B) Domestic Violence on Cathy Brown............ccccccceecsecessseeeeensees21 (C) Battery on Timothy McNulty.....00.0cececceceesreensesestenenes22 (D) Possession of a Loaded Handgun as a Minor........0.....c.eee23 (E) Victim-Impact Evidence ....0......cc cc ceescceesseceectseessseersuecescness23 (2) The Case-in-Mitigation ......0.0.cececee ccesseeceseeseseseeessseeeecauens24 (A) Robbery of ConstanceSilvey-White......0.....0. cee ccecseceseeeeeseeee24 (B) Appellant’s Personal History...... bodcedeeeeeeeseeeeeaaeeaseeevesseeeeeseseeenunaes24 TABLE OF CONTENTS(cont.) GUILT PHASE ERROR...........::ecccccsecseccsecseeseseseeecseseseussntescenseenrens33 I. THE TRIAL COURT'S DECISION TO REMOVE APPELLANT'S APPOINTED LAWYERS BECAUSE OF A PURPORTED CONFLICT OF INTEREST WITH CODEFENDANT GLOVER WAS SIXTH AMENDMENT STRUCTURAL ERROR’ THAT REQUIRES REVERSAL OF THE JUDGMENT............00..cccccccscscceseceseeeeceereeens33 (A) The Written Motions and Declarations.............cccccc cc cececeeeeneees33 (B) The Court Hearings........ 00. ccccccecsssssscecceceeessesesntrsaeeeeecenens 36 (C) The Public Defender Did Not Have a Conflict of Interest Based Upon Client Confidentiality (Rules of Professional Conduct, Rule 3- S1O(E)) oo.ccc cecccceeeeesseceecessssueeesesssecuensussessusseesecsesereeeesueetseeserenans40 (D) The Public Defender Did Not Have a Conflict of Interest Based Upon Any Relationship With a Former Client (Rules of Professional Conduct, Rule 3-310(B)) ....... cece ccccesseeeesecsesnsesstasecececeeesersnssere48 (E) Damron v. Herzog Did Not Require Removal of the Public Defender Over Appellant’s Objection. 00.0.0... eecccccceesseeececeeeneeeeees49 (F) The Motion to Recuse the Public Defender Was a Trial Tactic Rather Than an Effort to Remedy a Conflict. 0.00.00eeeeeee51 (G) The Violation of the Sixth Amendment Right to Counsel Requires Reversal of the Judgment. ...........ccc cecccccssseseccsssevensenessneaeesseass54 I. THE INTERROGATION OF APPELLANT BY OAKLAND DETECTIVE KOZICKI AFTER THOMAS INVOKED HIS FIFTH AMENDMENT RIGHT TO COUNSEL WAS IN VIOLATION OF EDWARDSV. ARIZONA... .eccccccceetestseeeseesseeeeseecensseerseeseneesenseenerens 58 (A) Testimony at the Evidence Code Section 402 Hearing. ............. 59 TABLE OF CONTENTS(cont.) (B) Standard of Review. ............cccccccccceccccssseesseecesecssdsesetearevsnteeeeeaas62 (C) Appellant Invoked the Fifth Amendment Right to Counsel Without Limitation, So Any Questioning Initiated by Law Enforcement Violated Edwards v. AriZOna .......ceccccccceccseccccseeeeeecenees63 (D) Appellant's Initiation of Contact With the Police and Waiverof Rights WasLimited to the Hayward Robbery Investigation .............67 (E) The Constitutional Error Requires Reversal of the Judgment. ...71 UI. THE FAILURE OF LAW ENFORCEMENT TO RECORD THE ENTIRE INTERROGATION OF APPELLANT RATHER THAN A: SMALL FRACTION OF THE SESSION VIOLATED THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS........0........74 (A) Failure to Make a Verbatim Recording of the Complete Tel=)cele:(0): s75 (B) The Deliberate Destruction of Exculpatory Evidence Violated the Fifth and Fourteenth AmendmentRight to Due Process................. 82 (C) Appellant's Waiver of Fifth Amendment Rights Was Not Knowing, Intelligent, and Voluntary ......0....0000. ccc ececseseseeceeseeesersnsees 84 (D) The Constitutional Error Requires Reversal ofthe Judgment....89 IV. THE GOVERNMENT'S USE OF INCONSISTENT THEORIES ON THE IDENTITY OF THE ACTUAL KILLER AMOUNTED TO PROSECUTORIAL MISCONDUCT THAT DENIED APPELLANT DUE PROCESS, A FAIR TRIAL, AND A RELIABLE PENALTY DETERMINATION. ....0.....ceccceecceceesscesseesseeceesseesseceuscareesseesvaesersanens 90 (A) The Fourteenth Amendment Due Process Motion to Dismiss the Personal Use of a Firearm Enhancements. .0..........:cccccccssseceseseesceees 91 TABLE OF CONTENTS(cont.) (B) The Motion to Prohibit the Prosecutor From Arguing that Appellant Was the Shooterin Guilt Phase Closing Argument.........92 (C) A Prosecutor Must Seek the Truth Rather Than to Maximize Convictions and Punishment by MeansofInconsistent Theories. ...95 (D) The Government's Use of Inconsistent Theories Was Not Justified By Any Ambiguity as to the Identity of the Shooter............96 (E) Appellant Was Prejudiced as a Result of the False Claim He Was the Shooter, and the Penalty Verdict Must Be Reversed....... 103 (1) Step 1: Glover Was the Shooter, and the Government Claim Thomas Wasthe Actual Killer Was False. ..............cccccccecccccccceeceeee 103 (2) Step 2: The Penalty Verdict Was Affected by the Government’s False Claim Thomas Wasthe Shootel............cccccccccccccccccccececeeesece. 107 V THE ADMISSION OF INFLAMMATORY PHOTOGRAPHS VIOLATED) APPELLANT'S FIFTH AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS.....00...ccececccceeceeeeeeeees 109 (A) Procedural History .0...........ccccceccseecceeseesereesseceuecsuececeesecssesess 109 (B) Appellant's Constitutional Claims of Error Have Not Been WAIVE. ooo. ecceeeecseeseeseecaccstessecersaesaesevsarsesesettesieestecatesaeverseees 111 (C) Admission of the Inflammatory Photographs Violated Appellant’s Fifth and Fourteenth Amendment Right to Due Process. .............. 112 (D) The Constitutional Error Requires Reversal of the Judgment..115 Vi. THE TRIAL COURT COMMITTED ERROR IN DENYING A MISTRIAL AS A RESULT OF TESTIMONY BY DETECTIVE DALEY THAT APPELLANT ASKED FOR A LAWYER, FOR THE DOYLE ERROR DEPRIVED APPELLANT OF DUE PROCESG................ 118 IV TABLE OFCONTENTS(cont.) THE PROSECUTOR COMMITTED MISCONDUCT IN HIS CLOSING AND REBUTTAL ARGUMENTG..............c:ccccceeceeeees 122 (A) INtrOGUCTION «2... cece ceccceeccecceeessseeecccseeeseuussevesesesersntteesensanaess 122 (B) Shifting the Burden of Proof 0.00.0...eeeeeesVeeeeeeeeeseneaes 123 (C) The Misconduct Claim Has Not Been Waived.........0....ceee 126 (D) The Constitutional Error Requires Reversal of the Judgment..128 VIII. REVERSAL OF THE JUDGMENT IS REQUIRED FOR CUMULATIVE ERROR ...0.....eeeceecceececsseeseeeeeaeseseeseeseeeenseveretsrenns 130 PENALTY PHASE ERROR...........cccccccccccssecssecceeeersusenesecareveessnnaees 132 IX. THE TRIAL COURT’S DENIAL OF CHALLENGES FOR CAUSE TO PRO-DEATH JURORS DEPRIVED APPELLANTOF HIS RIGHT TO AN IMAPARTIAL JURY, DUE PROCESS, AND A RELIABLE PENALTY DETERMINATION. ........0...ccccccccsssecescecssecesesseseessserenaee 132 (A) The Right to an Impartial Jury. ..........0 cece eceeseseeetseeesteeeeees 132 (B) The Challenges for Cause ........c.cccccccse-. ccusssesssessessserausssessessess 134 (1) Eric HOPOdaS2000... cece cccccccccseceesseeescesecsseueessnsscecaseveneneeenarereens 134 (2) Pamela Snyder.0.......cccccccccceesseceescssseeeetseeecevenrevevenueeessenes 136 (3) Juror No. 17/Alternate Juror No. 5.......cccc cc ccceseeceseneeeeseeeees 138 (4) Raquel Disperati .......... ccc ccccsceccceeececessneceseenreeeseeteserensens 140 (C) The Claim of Error Has Not Been Waived.............ccccccecsssseeeeee 141 TABLE OF CONTENTS(cont.) XK. THE TRIAL COURT COMMITTER ERROR IN DENYING A DEFENSE MOTION TO PROHIBIT THE CASE FROM PROCEEDING TO A PENALTY PHASEIN LIGHT OF THE LIFE WITHOUT THE POSSIBILITY OF PAROLE SENTENCE IMPOSED ON CODEFENDANTGLOVER.........0...ccccccccccccccesseessesssctreeneeteres 146 (A) Procedural History ..............cccccceccccecesscssecesseeececcseeeecersettseeeesens 146 (B) The Trial Court Committed Error in Denying the Motion to Prohibit a Penalty Phase as the Death Penalty Is Grossly Disproportionate to Appellant’s Personal Culpability .....000000000... 148 (1) California Constitution, Article |, Section 17 Analysis ............... 149 (2) Eighth Amendment Analysis ..........0...c0ceccccsecececseeeeeseeeseeees 152 (C) The Trial Court Committed Error in Denying the Post-Trial Motion to Reduce the Penalty to Life Imprisonment Without the Possibility of Parole on Proportionality Grounds..........0..cccecceeeeeceeeseneeseeneeeees 154 Al. THE TRIAL COURT COMMITTED ERROR IN DENYING A MOTION TO EXCLUDE SILVEY’S IDENTIFICATION OF APPELLANT AS THE SECOND OFFENDER AS UNRELIABLE AND TAINTED BY SUGGESTIVE POLICE PROCEDURE........ 156 (A) Procedural HIStory ............0.cccccccccscecssseecsesessseeeeentreeees eeeeeeeenees 156 (B) Silvey’s Identification of Appellant Was Unreliable, Tainted by Suggestive Police Procedures and Resulted in a Violation of Fifth and Fourteenth Amendment Due Process...............:ccccccseseeeeeeees 159 Xll. . THE VICTIM IMPACT TESTIMONY OF MARY YOUNG AND ELY GASSOWAY VIOLATED THE EIGHTH AMENDMENT AND REQUIRES REVERSAL OF THE PENALTY DECISION.............. 164 vi TABLE OF CONTENTS(cont.) (A) Procedural History ..........0..c0ccccceccceeesesssecescnseessneeersessreseeeseesss 164 (B) The Mary Young Victim-impact Testimony Violated the Eighth Amendment HeightenedReliability Requirement..................00.06.. 166 (C) Ely Gassoway’s Testimony Violated the Court’s Ruling Limiting Victim-Impact Evidence to Family Members. ............c:ccccsccsceeceeees 170 (D) Appellant Is Entitled to a New Penalty Determination.............. 170 Xlll. LIMITIATIONS PLACED ON THE CASE IN MITIGATION VIOLATED THE EIGHTH AMENDMENT AND REQUIRES REVERSAL OF THE PENALTY DECISION. .....0...0ccceceeceeeereeees 172 (A) Procedural History ...........0.ccccccccesseessccccecceesesnreestecesseessuesensey 172 (1) Evidence Code Section 402 Hearing ..........cccccceceecseeee: 172 (2) Testimony About Appellant’s Family Background.................... 174 (B) The Eighth Amendment Right to Present Family History During the Case-in-Mitigation ..........c cc ccccccccesececessenseeeeeverseseveteeresessees 175 (C) Appellant Is Entitled to a New Penalty Determination.............. 180 XIV. THE PROSECUTOR ENGAGED IN EGREGIOUS MISCONDUCT IN CLOSING ARGUMENT THAT TAINTED THE PENALTY PHASE WITH UNFAIRNESS AND DEPRIVED APPELLANT OF DUE PROCESS AND A RELIABLE PENALTY DETERMINATION. ...... 181 (A) The Prosecutor Engaged in Dehumanizing Name-Calling....... 181 (B) The Prosecutor Made Repeated Appeals to Passion and PPOJUCICE ooo... eee ecceccscccssecceseceseecssccasseseeesersecuuesesatessausevssersusecuees 184 (C) Griffin Error... .cccccccccccescecccsessecsessescnareceseasesceseteserssseesasesersance 188 vii TABLE OF CONTENTS(cont.) (D) Boyd EXtor ccccceccccccssseeeecsusnsstassssssssssessissisessssasasisssesteeeeeee 190 (E) The Constitutional Error Requires Reversal of the Penalty Verdict eee nace saan a aseneeeecsneesusseaunaseceseeeessesstessusussescsusssseseusssssaceeanacausceesecccuseuans 191 XV. THE PENALTY PHASE JURY INSTRUCTIONS FAILED TO INFORM THE JURY OF THE PRESUMPTION OF INNOCENCE AND ALLOCATION OF THE BURDEN OF PROOF FOR FACTOR (B) EVIDENCE, AND CONTAINED INCOMPLETE DIRECTIONS ON THE EVALUATION OF EVIDENCE.......0..-.cccccccccccceceeee.ceveeeeees 193 (A) Procedural HIStory .............cccccesccsscecseeeseessessssececeseessevsctereeeress 193 (B) General Rules for Jury Instructions ..0...0...ccccccccccccccccececsceesececees 195 (C) The Court Had a Sua Sponte Dutyto Instruct the Jury on Direct and Circumstantial Evidence Pursuant to CALJIC Nos. 2.00 and 2.01 cs eeeeeeneaeneceeeeeessaseesensessuseauaasceusaeeesesasaeeesesseaueeacaesuecsecaneeeeseuaceeeesseeas 196 (D) The Court Had a Sua Sponte Duty to Instruct the Jury on Weighing Conflicting Testimony Pursuant to CALJIC No. 2.22 .....197 (E) The Trial Court's Modification of CALJIC No. 2.90 Was Federal. Constitutional Error...........ccccccccsccseceeseeceesecsecsecstcssesasesssesseuseesees 198 (F) Failure to Delete Inapplicable Factors From CALJIC No. 8.85 eeeee ee eeeeeeeaeecusaaaeseaaeaasesaseeeeseceeeeeusceueususseusecessesttttttteittrestttrss207 (G) The Jury Instruction Errors Requires Reversal of the Death SEMENCE oooeeccccceecseecsceesucvsuesresaussasustssssssessscseeesicsseeeeeeees208 XVI. THE PENALTY JUDGMENT MUST BE REVERSED FOR CUMULATIVE ERROR .........cccccccccsessenreceseatsssessecsseseseetcsseeesenses210 viii TABLE OF CONTENTS(cont.) XVII. THE TRIAL COURT FAILED TO CONSIDER MITIGATING CIRCUMSTANCES IN RULING ON THE MOTION TO MODIFY THE DEATH SENTENCE TO LIFE WITHOUT THE POSSIBILITY OF PAROLE, AND THEREFORE DENIED APPELLANT A STATE STATUTORY RIGHT IN VIOLATION OF DUE PROCESG............211 (A) Procedural History ........0....ccccccccsccssesceecssseesecsceauecsesvsccesecesees211 (B) The Decision Was an Abuseof Discretion ...............ccccccccccccceee213 SYSTEMIC ERROR ......0..ccccccccccccscessessessesserseeeesesatseteseeaseascesveceeres216 XVIII. APPELLANT’S DEATH SENTENCEIS INVALID BECAUSE PENAL CODE SECTION 190.2 IS IMPERMISSIBLY BROAD...................218 XIX. APPELLANT'S DEATH SENTENCEJS INVALID BECAUSE PENAL CODE SECTION 190.3, FACTOR (a) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS. ....000.. ee cccccccccececeescesceseeeevereneeenes pete tet eesetntsaaeteneess220 XX. CALIFORNIA'S DEATH PENALTY STATUTE DEPRIVES DEFENDANTS OF THE RIGHT TO A UNANIMOUS JURY DETERMINATION OF EACH FACTUAL PREREQUISITE TO A SENTENCE OF DEATH AND THEREFORE VIOLATES THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS...............223 (A) The Death Verdict in This Case Was Not Premised on Unanimous Jury Findings Made Beyond a Reasonable Doubt......224 (1) Any Jury Finding Necessary for the Imposition of Death Must Be Found True Beyond a Reasonable Doubt.....ie teecaecaeeeessueeceeeeuneneees227 TABLE OF CONTENTS(cont.) (2) Any Finding Necessary for a Death Sentence Must Be Made by a Unanimous Jury oo...eeecsceseececeeseseevacestsesteteteeseeececesce232 (B) Penalty Phase Jury Instructions on Proof Beyond a Reasonable DOUDeeecee ee ceeeseeacsesccacesavsversasatstareiessstacevetesteveteteeeec234 (C) The Failure to Require Written Findings Regarding Factors in AQQTAVATION 00... ceeccetscsetcscacesscecenetscstacstecepeesesettteeeeceeeeecec237 (D) The Lack of Intercase Proportionality Review ..........00..0.00.0.6..-239 (E) The Introduction of Uncharged Acts Evidence in the Penalty Phase as Factor(b) Aggravation.........ccccccccescccscecececesceceeccccccc.241 (F) Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Acted as Barriers to Consideration of Mitigation by the JUIY...eeccceeeeereeesescescetassenesestssseatssststacavauarseavssstavetsesteveneseeeee.242 (G) The Failure to Instruct That Statutory Mitigating Factors Were Relevant Only as Potential Mitigation Precluded a Fair, Reliable, and Evenhanded Administration of the Death Penalty...eee243 XXl. THE CALIFORNIA SENTENCING SCHEME VIOLATES THE FOURTEENTH AMENDMENT GUARANTEE OF EQUAL PROTECTION BY DENYING PROCEDURAL SAFEGUARDS TO CAPITAL DEFENDANTS WHICH ARE AFFORDED TO NON- CAPITAL DEFENDANTS. .......00.c.ccsccsccsescesesscecesessesceseeseeceesesecccc.245 XXIl. CALIFORNIA’S USE OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMS OF HUMANITY AND DECENCY... eccccccccccceccecece ee.248 CONCLUSION ooocece cstssesccetssssnesesessestessssssteaseteeteteeseecesccc.252 CERTIFICATE OF LENGTH 20.0... .oocccccccccccescccessecseseceeteeeeseecececcc.253 X TABLE OF AUTHORITIES Cases Aceves V. SUPOHIOr COUPE .....ccccecccccccececscesenecssevssseccentaccvevsuesesseceuseess40 (1996) 51 Cal.App.4th 584 [59 Cal.Rptr.2d 280] ACQINGION V. TOXASLoo. cececccccccccsececsesecessecsetescececseesecssseceessestceucens234 (1979) 441 U.S. 418 [99 S.Ct. 1804, 60 L.Ed.2d 323] Ahmanson & Co. v. Salomon Brothers, INC. ......cccc0ccccccccccccescseeee42,51 (1991) 229 Cal.App.3d 1445 [280 Cal.Rptr. 614] Apprendi v. NEW Jersey oo... ..ccccccccccccscssssecnerecesesececeessseeeens2, 199, 224 (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] AnizZona V. FUIMINANC. ceccccccccccccccceesssessscccssecttttesstetsecetesecesseceee.71 (1991) 499 U.S. 279 [111 S.Ct. 1246, 113 L.Ed.2d 302] Anzona V. RODELSON..........cccccccccsscccecsevsnssssceeess 63, 64, 65, 66, 69, 70 (1988) 486 U.S. 675 [108 S.Ct. 2093, 100 L.Ed.2d 704] ANZONA V. YOUNQDIOO.........ccccceccccesceesccesseccsceecusscecsceevacecess 74, 82, 85 (1988) 488 U.S. 51 [109 S.Ct. 333, 102 L.Ed.2d 281] AEKING V. VITQINIA 00... cccccececsecccccccececccseecersesesssscussstttvereseesetseeees250, 251 (2002) 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335] Bankhead V. State ce... ccccccccccccccccsecccccccescececcceceeeeseeceeeeceeeeeeeeceeecse. 97 (Mo. 2006) 182 S.W.3d 253 Banks V. Dretke .o..cccce ccc ccceccccesscsccceececcsscsesttecesssecccsecstetuteteeesececcececee. 81 (2004) 540 U.S. 668 [124 S.Ct. 1256, 157 L.Ed.2d 1166] Bates V. Bell oo. .cc ccc cccccccccccccecccccccceccccureeeescccceceeseceeceeseece 183, 185, 186 (6th Cir. 2005) 402 F.3d 635 Bergerv. United States ...... ooo ccccccccccccccccccccsessccccceecesecceseeceseerecees 95, 99 (1934) 295 U.S. 78 [55 S.Ct. 629, 79 L.Ed. 1314] xi TABLE OF AUTHORITIES(cont.) Blakely v. Washington .............. 2, 200, 201, 202, 205, 206, 224, 225, 226, 231 (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] Blanco V. Singletary.......ccccccccccecccescccssessesscsseetscssesevsceccecsseseessvenceeed 77 (11th Cir. 1991) 943 F.2d 1477 Booth V. MA@ryland .00....ccccccccccceccceseesseussescesecesssesecascssecssesseereeesees 167 (1987) 482 U.S. 496 [107 S.Ct. 2529, 96 L.Ed.2d 440] BOYd@ V. BLOWN 0.0... ceccccccesesescusescessasecssssssesessssssessessassecatsecseseesee: 177 (9th Cir. 2005) 404 F.3d 1159 Bradshaw V. Stuf ......0..cccccccccccccecccesscceseessecsassacccsssescessssesceneees 98, 99 (2005) 545 U.S. 175 [125 S.Ct. 2398, 162 L.Ed.2d 143] Brady V. Maryland ..0.....ccccccccccccccccsscessenscesesssesecsssaseatesesestesevenees 74, 96 (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] Bruton v. United States oo. c icc cccccccccccccccccceceseesscensecceteeeseeseceeceseccces5 (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476] BUSH V. GOP 0.0... cece cccceccececesusscceesecerseuecesesuussesevueeeeeteeeeseseeeeccccc247 (2000) 531 U.S. 98 [121 S.Ct. 525, 148 L.Ed.2d 388] Caldwell V. MISSISSIDPI..........0..ccccccccccceccecssescesscsscssecsscssenecesevssseeeeees210 (1985) 472 U.S. 320 [105 S.Ct. 2633, 86 L.Ed.2d 231] California V. BrOWN woieeecccccccccccscececsccceececccstetececcessececececcseeeeece. 175, 237 (1987) 479 U.S. 538 [107 S.Ct. 837, 93 L.Ed.2d 934] California v. Trombetta 000... .cccccccccccccecicccececscccceetececeeeececcccesesecccs, 82, 84 (1984) 467 U.S. 479 [104 S.Ct. 2528, 81 L.Ed.2d 413] Caspari V. BOMION ........cccccccccccccccucesesessescsssetsecsesassesesssessetecsesecesees236 (1994) 510 U.S. 383 [114 S.Ct. 948, 127 L.Ed.2d 236] xii TABLE OF AUTHORITIES(cont.) Chapmanv. California....00...cccccccccccc. 71, 89, 115, 171, 180, 191, 209 (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L. Ed.2d 705] COKEL V. GOOLGIA oo. eeceecececcsccsescsssesveccstsssatsesassecstecsaveceevecceceececcece, 152 (1977) 433 U.S. 584 [97 S.Ct. 2861, 53 L.Ed.2d 982] COA V. SPI... ecccccceccccescesccsesseecesesessessesecacestessessesteceececesee.64, 65 (1987) 479 U.S. 564 [107 S.Ct. 851, 93 L.Ed.2d 954] Commonwealth v. DiGiambattista ................0.c00cc0ccccccecccc--cc. 76, 79 (2004) 442 Mass. 423 [813 N.E.2d 516] Conservatorship Of ROUICt 0... .ecccccccescccccccsceccscseseecececceeseeeecccc.235 (1979) 23 Cal.3d 219 [152 Cal.Rptr. 425, 590 P.2d 1] Cunningham v.California......... 2, 195, 202, 203, 209, 216, 224, 226, 229, 232 (2007) 549 U.S. _—«[2007 U.S. Lexis 1324] CUNNINGHAM V. ZANE ie cecccccccceccseseesesssessssecstecesesecesteveccecececcecccccc, 185 (11th Cir. 1991) 928 F.2d 1006 DAMON V. HEIZOo...cececceccessessescescesssecsesscessceseesceesceseees 37, 38, 49, 50 (9th Cir. 1995) 67 F.3d 211 Daniels V. WOOdPfOIE ......c.cccccccececccscsestscesseestsecesateseceseececeseececcc, 177 (9th Cir. 2005) 428 F.3d 1181 Darden V. WaiNWIQHt........cccccceccccececesesseessevessccsseseseecceseceeseececcece. 182 (1986) 477 U.S. 168 [106 S.Ct. 2464, 91 L.Ed.2d 144] DAVIS V. GOOLQIA eee eeecccccccescssecestssessecssessstessseacesssteseectececeseeceecccce. 144 (1976) 429 U.S. 122 [97 S.Ct. 399, 50 L.Ed.2d 339] Del V. LASHICYA... cece ccccccccccccesescesssscstssesatsecascstuesistectasceseececccccc.207 (1993) 507 U.S. 272 [113 S.Ct. 1222, 122 L.Ed.2d 620] xill TABLE OF AUTHORITIES(cont.) Doyle V. ONIO ...ccsccecccssscsessessssessssessusssesssuessssesesesesesssecsscesstesscssseesee 119 (1976) 426 U.S. 610 [96 S.Ct. 2240, 49 L.Ed.2d 91] DUNCAN V. LOUISIANA o.oo ccccccccccccccccececceccseerisssssttstesstitttetttescccsess 133 (1968) 391 U.S. 145 [88 S.Ct. 1444, 20 L.Ed.2d 491] Eddings V. OKANOMA ....ccecceccetcccecceseceeseeteteseenees 136, 139, 151, 176 (1982) 455 U.S. 104 [102 S.Ct. 869, 71 L.Ed.2d 1] Edwards V. AliZON@ oiceececceccccccccccccceceseccececceccssceueeees 59, 63, 70, 73, 86 (1981) 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378] ENMund V. FIONA ...... 0.0 cecccceeccccscccccccccccccecsscecutececsesecceseeeesseeesecss 148 (1982) 458 U.S. 782 [102 S.Ct. 3368, 73 L.Ed.2d 1140] Fare V. Michael Cu ou... cccecccceeccccceccccsecccccsecsecerteseceecccccestestusescsteeeecs 86 (1979) 442 U.S. 707 [99 S.Ct. 2560, 61 L.Ed.2d 197] Flatt v. SUP@rior COUPE ......cecccccceccccccscceeseessscesseteneceeeseeesreesseerses41,48 (1994) 9 Cal.4th 275 [36 Cal.Rptr.2d 537, 885 P.2d 950] FUIMAN V. GOOLGI€ 00... cccccecceccecccccccccnseseccececeeccecease 148, 217, 218, 240 (1972) 408 U.S. 239 [92 S.Ct. 2726, 33 L.Ed.2d 346] Gardner V. FIONIAG ... o.oo. c cece ccccccccccccececccccessececsrsesttssessecsteteteccssccecece.234 (1977) 430 U.S. 349 [97 S.Ct. 1197, 51 L.Ed.2d 393] GIDEON V. WaINWIIGHEoo... ceccccccccceeccceceeceseccateccsecestseetscesecsescseseseees 57 (1963) 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799] Giglio v. United States .......ccccccccccccccccecsccesscenseecasseesseestsueesseesesseeesess96 (1972) 405 U.S. 150 [92 S.Ct. 763, 31 L.Ed.2d 104] Global Van Lines, Inc. v. Superior Court .......ccccccccccccccsecceeesseeeecseevees42 (1983) 144 Cal.App.3d 483 [192 Cal.Rptr. 609] Gray V. MISSISSIPPI.........0ccccccccccccsecessssecseseseeneneecntcececeass 142, 143, 144 (1987) 481 U.S. 648 [107 S.Ct. 2045, 95 L.Ed.2d 622] XIV TABLE OF AUTHORITIES(cont.) (C7(Jo[eR 1-6)£6][-148, 152, 187, 237 (1976) 428 U.S. 153 [96 S.Ct. 2909, 49 L.Ed.2d 859] Griffin V. California. c.ccec ccc cccccccccccccccccceceseccestttccscceueuueeseeeeeteceseeseceeeee. 188 (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106] Harmelin v. Michigan .........cccccccccccccccssssessccesececseeeurecsssseesseeceses 233, 238 (1991) 501 U.S. 957 [111 S.Ct. 2680, 115 L.Ed.2d 836] HICKS V. OKIQNOMA wii e cece cece cccccccsscccnscesstccsesecseecececceccccceceeceeeees 215, 244 (1980) 447 U.S. 343 [100 S.Ct. 2227, 65 L.Ed.2d 175] Holloway V. Arkansas .........cccccccccecccsssceesccesesesececatetescecusseetsceesaceens46 (1978) 435 U.S. 475 [98 S.Ct. 1173, 55 L.Ed.2d 426] IN TO FOQa ooo... cece cccccccccecceccecctevavcctccececsecesesseeuueeceeeeteecececcececece 122 (2006) 38 Cal.4th 630 [42 Cal.Rptr.3d 850, 133 P.3d 1013] IO LYNCA oe. eeceececssceescccsesesscesessevcasesecarsaecautesasseaeerseseiseetensesse 149 (1972) 8 Cal.3d 410 [105 Cal.Rptr. 217, 503 P.2d 921] In re Marriage Of ZIMMELMAN ......ccccceccceeccsecccecsceecsesecsecceseeecseecees 51, 56 (1993) 16 Cal.App.4th 556 [20 Cal.Rptr.2d 132] IN VO SAKANIAS ooo ieee ecccccccccceveceesetetececeseuccececsececcececs 97,99, 103, 107 (2005) 35 Cal.4th 140 [25 Cal.Rptr.3d 265, 106 P.3d 931] IN Te Stuart S ooocccccceccccecentecctneseeeeeeeeebeee ebb bbbbeebeeebeeeeccce. 128 (2002) 104 Cal.App.4th 203 [127 Cal.Rptr.2d 856] IID PO SUTIN ooo cece ccc cccceceececsececececsttcntrsceceeescesseeeeessueeteeseceeesteceeeecce.238 (1974) 11 Cal.3d 258 [113 Cal.Rptr. 361, 521 P.2d 97] IN TO WINSHIP 0... cecceccccccccccseesecccceeecccerssutececenttcseseeseess209, 234, 235 (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368] =[0x6]OX S10)|97, 98, 99 (1995) 513 U.S. 1067 [115 S.Ct. 711, 130 L.Ed.2d 618] XV TABLE OF AUTHORITIES(cont.) JOHNSON V. MISSISSIPPI... ccccccccecceceseccecescsesececssescstsseecececeeeececcccc.241 (1988) 486 U.S. 578 [108 S.Ct. 1981, 100 L.Ed.2d 676] JOANSON V. State .....cecccccccccsseccesceseecssessssecsescesseseeesceeecccecce.228, 231 (2002) 118 Nev. 787 [59 P.3d 450] JOPNSON V. TOXAS oo..ceccccccccescesesceccsceasssecascesecesseesueeeeceeeeeccecce, 151, 215 (1993) 509 U.S. 350 [113 S.Ct. 2658, 125 L.Ed.2d 290] Kansasv. Marsh ee eec eee ueeeesaeessceeeeeuusuuseetensvssaesusssesuneareeccesssesces 216, 239 (2006) ___ [126 S.Ct. 2516, 165 L.Ed.2d 429] LAWFENCE V. TOXAS oooeeecccecccecccceecestscstesesseesssetecteeeeseeceeceeeeeccce.250 (2003) 539 U.S. 558 [123 S.Ct. 2473, 156 L.Ed.2d 508] Leversen v. SUperior COUT... ccecccccscssesccesssssesccteseeeeceeeececcccc.46 (1983) 34 Cal.3d 530 [194 Cal.Rptr. 448, 668 P.2d 755] LAMY V. VAPQUINoooeeeecccccececsestsssssssssusatsatsssssesesseseetiseteteeseecececcce. 103 (1999) 527 U.S. 116 [119 S.Ct. 1887, 144 L.Ed.2d 117] LINCOIN V. SUNee ceecececccccseessssssscssescetsesesacisescstastevecscecececcececc. 189 (9th Cir. 1987) 807 F.2d 805 LOCKEV. ONIO woe. eeeeeceeccscscsescstssssssessssatavstterevavscssecsees 175, 206, 242 (1978) 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973] Lockhart V. MCCIO6 oo... cecccccccccscssssseseesstssesssecacssssestesseceseeeseecececc. 133 (1986) 476 U.S. 162 [106 S.Ct. 1758, 90 L.Ed.2d 137] Manson V. Brathwaite ......0ccccccccccccccsescsecssescsssteseeceeeeesecececccs 160 (1977) 432 U.S. 98 [97 S.Ct. 2243, 53 L.Ed.2d 140] Marks V. Superior Court ....c.cccceccescecessesessesseceececseseeceeeecsceecccc. 122 (2002) 27 Cal.4th 176 [115 Cal.Rptr.2d 674, 38 P.3d 512] Martin V. P@rker.....cccccecccececccescsssescsctsesssscscsssevasssseeseesevececeeseccc 183 (6th Cir. 1993) 11 F.3d 613 Xvi TABLE OF AUTHORITIES(cont.) Maynard Vv. Cartwright .........ccccccccccccccscsssccssensecesceseeseesatesaeerssesessenses222 (1988) 486 U.S. 356 [108 S.Ct. 1853, 100 L.Ed.2d 372] MCCleSkeY V. KOMP... ..cccccccccccesecccesscesscsscecerseeseeuecsetsesnsseecasevereeses205 (1987) 481 U.S. 279 [107 S.Ct. 1756, 95 L.Ed.2d 262] McKoyV. North Carolina ......ccccccccccccccccscscessesecssecessesseeseesstecsecuseeens 175 (1990) 494 U.S. 433 [110 S.Ct. 1227, 108 L.Ed.2d 369] McNeil Vv. WISCONSIN .........ccccceeccccecccccccccccccseecsccceseeececeutettteeseeeccce 64, 70 (1991) 501 U.S. 171 [111 S.Ct. 2204, 115 L.Ed.2d 158] MICHIGAN V. HArVeyu... .ecccccccccccccccecsccescvescvssceceeevartaresessesescacecsseveases63 (1990) 494 U.S. 344 [110 S.Ct. 1176, 108 L.Ed.2d 293] MINS V. MArylann......cccccccccccccesscesecceucscsessesnsesenecsssecsteeesscecneses238, 242 (1988) 486 U.S. 367 [108 S.Ct. 1860, 100 L.Ed.2d 384] Minnick V. MISSISSIPPI ......000..ccccccccccccescesccescsececeseeseescserssecensseees 63, 70 (1990) 498 U.S. 146 [111 S.Ct. 486, 112 L.Ed.2d 489] Miranda V. AliZONA ....... 0... ccccccccceccccesseccceceescseccstrteecceseeeececcececcees 85, 89 (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974] Monge V. California ........ccccccccccccccccccersecsstestetececesecereceecee 233, 236, 245 (1998) 524 U.S. 721 [118 S.Ct. 2246, 141 L.Ed.2d 615] Mooney V. HOlonann ........ceccccccceccccceescesccsesusesscstssserevureassatesaesnaeensee, 96 (1935) 294 U.S. 103 [55 S.Ct. 340, 79 L.Ed. 791] Moran Vv. Burbine ..........cc.ccccccccceeeeevesesuatessatessavessatesvavettiveveseseteeeesee. 86 (1986) 475 U.S. 412 [106 S.Ct. 1135, 89 L.Ed.2d 410] Morgan V. INMINOIS ...ccccccccccccccceeecccsccccesevnesetereessscessecausecusesenscens 133, 138 (1992) 504 U.S. 719 [112 S.Ct. 2222, 119 L.Ed.2d 492] xvii TABLE OF AUTHORITIES(cont.) MYCIS V. YISC ce ecceecccccccceteeecesecsssessecesesesecsusevessecstsevsusectuseserseeuaees238 (9th Cir. 1990) 897 F.2d 417 Na@pue V. TNNOIS .... ccc ccccccccecccceccccescceusescansesunseeesecsueseessteseussteetssseeeusees 96 (1959) 360 U.S. 264 [79 S.Ct. 1173, 3 L.Ed.2d 1217] North Carolina V. Butler ...0.ecccccccccceccccccecccccccecccccccceueceeeeeeccceceecccccccc. 86 (1979) 441 U.S. 369 [99 S.Ct. 1755, 60 L.Ed.2d 286] Oregon V. BradShaw....cc.cceccecccccccecscecsseccsessecccseereceeccceeuaeeeces67, 68, 69 (1983) 1039 [103 S.Ct. 2830, 77 L.Ed.2d 405] PAQano V. AAI... ceececccccccccccccssscssssesssessenseressesssseuseesssecauessesesess 125 (D. Mass. 2002) 218 F.Supp.2d 26 Parker V. DUQQED........cccccccccccesecescsesecesssussscnseeseesseusstscisecevssscneveses 153 (1991) 498 U.S. 308 [111 S.Ct. 731, 112 L.Ed.2d 812] Payne V. TENNESSEE ........ccccccccccecccssscesssenseeeaeeeecsseesaccuseeesenens 166, 176 (1991) 501 U.S. 808 [111 S.Ct. 2597, 115 L.Ed.2d 720] P@Nry V. LYNQUQN 00... .ccccccccccccesccusscsscceseesseceesececesseersssenteeeerceees 151, 214 (1989) 492 U.S. 302 [109 S.Ct. 2934, 106 L.Ed.2d 256] People V. ACCOX uu..cecceecececcscsesscecsccesessesssisssesescstttteceesess 187, 220, 230 (1988) 47 Cal.3d 207 [253 Cal.Rptr. 55, 763 P.2d 906] People V. AION .....ccccccccccccsccccssecuscussccsesensevcetscecsueeussscecsuesersevesecenes228 (1986) 42 Cal.3d 1222 [232 Cal.Rptr. 849, 729 P.2d 115] People v. Anderson..........csvesessessesststeasstaseseaveseatessseeseavesiveseeees2,228 (2001) 25 Cal.4th 543 [106 Cal.Rptr.2d 575, 22 P.3d 347] People V. ANErSON .......ccccccccecccsccescessesssusecsacecersessteecssessseessecseeessees 114 (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306] People V. ANCOSLSON «02. ..ccccccccscesscescecssesseesecteevesessecaseessceceteseeesens 184 (1972) 6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880] XVvili TABLE OF AUTHORITIES(cont.) People V. Aranda icc. .ecccccccececseccccecesecevescececsciteseseteveeecesceeeeccceecccccs. 5, 80 (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265] People V. ASAMUS.....ccccccccccccsessesccsvessessesescaessscsecsecsssaesesstaseceeeecees 192 (1991) 54 Cal.3d 932 [2 Cal.Rptr.2d 112, 820 P.2d 214] People V. Bacigalupo..........cccccccccccccsseceesssessscccessesscecsseseeeceece. 149, 218 (1991) 1 Cal.4th 103 [2 Cal.Rptr.2d 335, 820 P.2d 559] People V. Bittaker 0... .ccccccccccccccessssescssecseessasessssesaecessesessesseseceeees221 (1989) 48 Cal.3d 1046 [259 Cal.Rptr. 630, 774 P.2d 659] People V. BIACK........cccccccceccccscseseetecesecesstenscceeessens 2, 3, 203, 204, 226 (2005) 35 Cal.4th 1238 [29 Cal.Rptr.3d 740, 113 P.3d 534] P@Ople V. BIOYS oc. cececccccecseescssessescesesesssecssssevssesesssesecessseesececeesees 196 (1987) 43 Cal.3d 333 [233 Cal.Rptr. 368, 729 P.2d 802] P@Opl@ V. BONN 00... ccccccccccccccccssesesesesseessecatececesescssesesetesseeseccesees40, 41 (1989) 47 Cal.3d 808 [254 Cal.Rptr. 298, 765 P.2d 460] P@Ople V. BOY.0...ceccccccssesssesssessensvesececessecseeaecetesesesseeseeseseeee: 190, 244 (1985) 38 Cal.3d 762 [215 Cal.Rptr. 1, 700 P.2d 782] People V. Bradford........cccccccccceccssscessesesscessessussssesscrasesesevestaccescesseee.49 (1997) 15 Cal.4th 1229 [65 Cal.Rptr.2d 145, 939 P.2d 259] People V. Breverma.......cccccecccccccsccessssseessesssacsassesstcesscteseeeceeecece. 195 (1998) 19 Cai.4th 142 [77 Cal.Rptr.2d 870, 960 P.2d 1094] P@Ople V. BOWN 0... ceecscecccsccecscceccssesvessesssstsssasestsasssatesesssesvueecesecsees 153 (2003) 31 Cal.4th 518 [3 Cal.Rptr.3d 145, 73 P.3d 1137] P@OpPIE V. BOWN .....eececcccceccccssccccssesssssaessttstatesssassecssvssascesteseacesessees 192 (1988) 46 Cal.3d 432 [250 Cal.Rptr. 604, 758 P.2d 1135] P@OpIE V. BUINS 2... .eeeccccccccscescescessssesevensustsssatsaecsessssatessvusvreecceeeees 113 (1952) 109 Cal.App.2d 524 [241 P.2d 308] xix TABLE OF AUTHORITIES(cont.) POOPIE V. C@IN ee eeeceececcccccsesccusesssssvecsasecsessssscsesaassasessessusveseeseeseeee. 153 (1995) 10 Cal.4th 1 [40 Cal.Rptr.2d 481, 892 P.2d 1224] People V. Carpenter ...c...ccccecccccccccccccsccecececsseesseeuteteccecseceeseece. 177, 244 (1999) 21 Cal.4th 1016 [90 Cal.Rptr.2d 607, 988 P.2d 531] P@Ople V. Carter... .eceeccccccecccccescessseceetesesecssccatssessecesecceseeneces 194, 196 (2003) 30 Cal.4th 1166 [135 Cal.Rptr.2d 553, 70 P.3d 981] POOPIE V. COfE oo. ee eceecccccccscsesescessssensenssaesresssesssessssteucssteetseeeececees219 (1993) 4 Cal.4th 1134 [17 Cal.Rptr.2d 375, 847 P.2d 55] P@OpIe V. CHAVEZ .....eccceccceccecccesccsecssessceseecseesseseseseseeeeeeteseeseececee. 127 (1980) 26 Cal.3d 334 [161 Cal.Rptr. 762, 605 P.2d 401] People V. CAYIStIAN .......cceccceccceecsescescescesesecsecesessessessceceseeceecececeece.43 (1996) 41 Cal.App.4th 986 [48 Cal.Rptr.2d 867] P@OpIV. CIALKee cecccccccccccsesscsssesseseescsesasesstssesassstesscestesteseecesesseeees45 (1993) 5 Cal.4th 950 [22 Cal.Rptr.2d 689, 857 P.2d 1099] P@Ople V. COLMINS 0... cecceccccccecccesvessuscsessseseecetatsaccstcessesssssceseeceeeee. 116 (1968) 68 Cal.2d 319 [66 Cal.Rptr. 497, 438 P.2d 33] People V. CONECTAS0. .eccccceccceseccesessssststesscesesescsstecsesssseveceeceesee. 159 (1993) 17 Cal.App.4th 813 [21 Cal.Rptr.2d 496] People V. COMmWeEll ......ccccccccceccccssssecesstsvsseesevesecscsesseseseeeeecceseececccce.48 (2005) 37 Cal.4th 50 [33 Cal.Rptr.3d 1, 117 P.3d 622] P@OPIE V. COX oo... eeeecestceeccscsesesessacsssvavsnsessaceataecatvascesscceneeves2,44, 45 (2003) 30 Cal.4th 916 [135 Cal.Rptr.2d 272, 70 P.3d 277] P@OPlE V. COWGED.....ececccccececccssustesvsesesestestsuavstecattetecessesecteseeccecees 160 (1988) 202 Cal.App.3d 1066 [249 Cal.Rptr. 240] People V. Crandell .....c.ccccccccccccccscscsesesesessesetustsseessseteccsestesveveeceecees 119 (1988) 46 Cal.3d 833 [251 Cal.Rptr. 227, 760 P.2d 423] XX TABLE OF AUTHORITIES(cont.) P@OPIE V. CLOW uae eeeececesecsescesssecscassssseveccartessateacsasussasessessereecececeeses 122 (2003) 31 Cal.4th 822 [3 Cal.Rptr.3d 733, 74 P.3d 820] P@Ople V. Crittenden ......cccccccccccccesessesstscsseseestseseesscsssesectecestecececcece. 133 (1994) 9 Cal.4th 83 [36 Cal.Rptr.2d 474, 885 P.2d 887] P@OPIE V. CUCCIA oo. eeeecccccccecccssesseseesssesssecaetesesecessaseesesseeeeseeseccee. 130 (2002) 97 Cal.App.4th 785 [118 Cal.Rptr.2d 668] People V. CUNNINGHAM .......cccccccecccccsessseetsscsssecesesetseesvecteeeeseeeeece.213 (2001) 25 Cal.4th 926 [108 Cal.Rptr.2d 291, 25 P.3d 519] People v. D@Metrulliaoo... ..cccceccccecccscesccesccsssesescseeeseceescecces.223, 238 (2006) 39 Cal.4th 1 [45 Cal.Rptr.3d 407, 137 P.3d 229] P@Ople V. DUNON .....ccccccccccccceteeccccsecesseceserccseesceeseeececceece. 149, 150, 219 (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697] Pe@Ople V. Easley......c.ceccccccesecessssssvssescstsetsssatsesscsssasisavececcecesceecccec..49 (1988) 46 Cal.3d 712 [250 Cal.Rptr. 855, 759 P.2d 490] People v. Ede@lbacher .......c..ccccccceccecesesecsctusesessseseeceeceeeecceeeccccc.243 (1989) 47 Cal.3d 983 [254 Cal.Rptr. 586, 766 P.2d 1] People V. Edward..0....ccccccecccccscsessessuseessecassavesssssssateteetaceceececeeecee. 167 (1991) 54 Cal.3d 787 [1 Cal.Rptr.2d 696, 819 P.2d 436] P@OPIE V. EYVin oo... .ecesecccsccscccsccssuseseeseustsssaseaseatesputvesteseevueeeseeeeeccecc.83 (2000) 22 Cal.4th 48 [91 Cal.Rptr.2d 623, 990 P.2d 506] Pe@ople V. FairDank ...c.ccccccceccecccseccssescsescssecatsscssesscssteceececesees224, 237 (1997) 16 Cal.4th 1223 [69 Cal.Rptr.2d 784, 947 P.2d 1321] P@OPIE V. FEMA. eeecceccesscsescsssssesvessssestsseestsassssusceseeseeteseeceecceccen.227 (2002) 28 Cal.4th 107 [121 Cal.Rptr.2d 106, 47 P.3d 988] P@Ople V. FQUDES0... cccccccseccccccsessecessesssecseesscstussestuceeseeceseecceccec.237 (1992) 2 Cal.4th 792 [9 Cal.Rptr.2d 24, 831 P.2D 249] Xxi TABLE OF AUTHORITIES (cont.) POOPIE V. FOAQICY. cscs cescssosssssssssisssssssestssstastissssssieeseseeeeseec cc.235(1975) 14 Cal.3d 338 [121 Cal.Rptr. 509, 535 P.2d 373] P@Ople V. FICO woo. ccceccccccceceeeeceececccc 164, 1267, 168, 169, 241 (1991) 1 Cal.4th 173 [3 Cal.Rptr.2d 426, 821 P.2d 1302] POOPIE V. FIOOoe. eescseccccssessssstsessassssssssitesttsiistasiissssieeeteecec cc. 195 (1998) 18 Cal.4th 470 [76 Cal.Rptr.2d 180, 957 P.2d 869] P@Ople V. FIY@ oo... eececcccsesesecesstececeseeseceeeseccc.seetteeeu vas tuteeseneenessennes83(1998) 18 Cal.4th 894 [77 Cal.Rptr.2d 25, 959 P.2d 183] POOPIE V. GIDSON .....csecccscssetsssssssiesscsssttsssssstiessasiissseseeeeeseccc 113(1976) 56 Cal.App.3d 119 [128 Cal.Rptr. 302] P@OPIE V. GOON oo... eeccesessscssessssessstssssieesisessstecseeeee ccc. 128, 205(1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468] POOPIE V. Halll... .essescccsscsssssssssssaseesssssssssttttstistissessstieeeeseeccc. 127(2000) 82 Cal.App.4th 813 [98 Cal.Rptr.2d 527] People V. HAMiltON .........cecccsessescsesssesssssssstssssessecssctseeeeseeeecc243(1989) 48 Cal.3d 1142 [259 Cal.Rptr. 701, 774 P.2d 730] POOPIE V. HALA...essseccccssstsessssssesscssssuitsssstiiiessssssesseeseecesteeeecc220(1992) 2 Cal.4th 86 [5 Cal.Rptr.2d 796, 825 P.2d 781] People V. HAWtHOINEoo... eeesescsscecssstessstessssiesesessieeseeeeeeccccccc.227, 239(1992) 4 Cal.4th 43 [14 Cal.Rptr.2d 133, 841 P.2d 118] POOPIE V. HAYES on esses cceccssssesssssssssesssssitsssssitiessasicssststeeeeteecee142(1999) 21 Cal.4th 1211 [91 Cal.Rptr.2d 211, 989 P.2d 645] People V. HEMmandeZ ..........ssecscsseissssssssissetsssssesessesseeseeeeeeescc cc.230(2003) 30 Cal.4th 835 [134 Cal.Rptr.2d 602, 69 P.3d 446] PeOple V. HEMANAEZ «0... cesseescssssssssssssssstsctsssiessesseeceseeesecc cc. 116(1988) 47 Cal.3d 315 [253 Cal.Rptr. 199, 763 P.2d 1289] xxii TABLE OF AUTHORITIES(cont.) People V. Hill... .eccccccccecees 96, 120, 122, 125, 126, 127, 1286, 187 (1998) 17 Cal.4th 800 [72 Cal.Rptr.2d 656, 952 P.2d 673] P@Ople V. Hill oe. ececceescceccccscecscescesssenscusseseverstatsesertecsuessecaseees 150, 154 (1992) 3 Cal.4th 959 [13 Cal.Rptr.2d 475, 839 P.2d 984] People V. HiNNOUSC........cccccccccccsccessessceseseseccaseesseecssecseecsusesevseceseees219 (2002) 27 Cal.4th 469 [117 Cal.Rptr.2d 245, 40 P.3d 754] People V. HOlt ......eecccccccccesccescececsessessecasesaeessseusueesssessucseeeesecarevesecenes77 (1997) 15 Cal.4th 619 [63 Cal.Rptr.2d 782, 937 P.2d 213] People V. HOlt .....ccccccccccccccscccccecscecssesscusseeasessseseeecstessasausssessecereees 130 (1984) 37 Cal.3d 436 [208 Cal.Rptr. 547, 690 P.2d 1207] P@Ople V. KONNCAY ..0...cccccccccecccccsecsesseessesecseessstsssecacesssscssesssesseeaeees 159 (2005) 36 Cal.4th 595 [31 Cal.Rptr.3d 160, 115 P.3d 472] P@Ople V. KIONCMYECS......ccccccccccccesscesssesecusseuseeetceceaseusueesectssesseensees 130 (1987) 189 Cal.App.3d 314 [234 Cal.Rptr. 442] People V. LOWES .o...cececcccsccsececccsecesseessseceesarcsatsussscsetsauecsacesevsseeesees 196 (2001) 25 Cal.4th 610 [106 Cal.Rptr.2d 629, 22 P.3d 392] P@OPIE V. LOVCLo. eecceceeceeeesseessceseeesccsesssseascasvessesaesessesesaresuecsessaees 113 (1960) 53 Cal.2d 843 [3 Cal.Rptr. 665, 350 P.2d 705] People V. Markus .......ecccccccccceccccccscescesssesesuacesseesssscsatesssusseesscsseesees 116 (1978) 82 Cal.App.3d 477 [147 Cal.Rptr. 151] P@Ople V. Marsh oc. ciccccccccccccccccccesecssseusssessesesesescrseeeressessseuseeeteeeee: 114 (1985) 175 Cal.App.3d 987 [221 Cal.Rptr. 311] People v. Marshall ......00..ccccccccecccccccsscsecceesessccssecevecseesetessececes207, 241 (1990) 50 Cal.3d 907 [269 Cal.Rptr. 269, 790 P.2d 676] P@Ople V. MA@rtin ooo. eccceccccccsececccecscssuscscsecrsesauecssetsaccscuasecsuseeses 196 (2000) 78 Cal.App.4th 1107 [93 Cal.Rptr.2d 433] xxiii TABLE OF AUTHORITIES(cont.) P@OPI€ V. MAQUIY 0... eeeccccecceccscesesescsssesecacsevacseescssesavecevevecceseececces. 150 (2003) 30 Cal.4th 342 [133 Cal.Rptr.2d 561, 68 P.3d 1] People V. MCDe@rmOtet.....c.ccccccececceseccssesssscssseesesectececcecececcesees 154, 183 (2002) 28 Cal.4th 946 [123 Cal.Rptr.2d 654, 51 P.3d 874] People V. MCCLAIN... .cccccccccccccccsnscsevesestesesatscssececteeceeseeeeceeceeeccccc 120 (1988) 46 Cal.3d 97 [249 Cal.Rptr. 630, 757 P.2d 569] P@ople V. MINCOY.....ecceccccccccecssesssecseesssecetssesssecstesteseeseeseceeseccccccc 153 (1992) 2 Cal.4th 408 [6 Cal.Rptr.2d 822, 827 P.2d 388] Pe@ople V. Miranda ......cccccccccceccecccesscssascesseceseseecesseseeceececeececccccc, 134 (1987) 44 Cal.3d 57 [241 Cal.Rptr. 594, 744 P.2d 1127] People V. MOnti€l ........ccccccccccccceccccscsesevesseecseescesteseeceeeeeceseccccc244 (1994) 5 Cal.4th 877 [21 Cal.Rptr.2d 705, 855 P.2d 1271] People V. MOrales........cccceccccceccescscescscesessestsecsesesessecavecceceeeecccececce.219 (1989) 48 Cal.3d 520 [257 Cal.Rptr. 64, 770 P.2d 244] P@OPI€ V. MOLTIS 00... eecccccccccccccsesctscseesssessesscassesssesseseesceseesecceccccc 120 (1991) 53 Cal.3d 152 [279 Cal.Rptr. 720, 807 P.2d 949] P@Ople V. MOITISON ......c..ccecceccesscsessecccseststestseessesssseeteceececeseseecccecce.244 (2004) 34 Cal.4th 698 [21 Cal.Rptr.3d 682, 101 P.3d 568] Pe@ople V. N@Aloo... ceeceecccccsceccssssssesvecsessstesatsssaeassesateseececceceececeecc..87 (2003) 31 Cal.4th 63 [1 Cal.Rptr.3d 650, 72 P.3d 280] People v. NiCOlUS......c.ccccccccccccsecesesscsesesteceessssssasscsavecteceeeeceseccecc.220 (1991) 54 Cal.3d 551 [286 Cal.Rptr. 628, 817 P.2d 893] P@OpI@ V. OLVAS oo. ceccccccccececceccessssesesecseeeccsetesessensesceescecce ce.245, 246 (1976) 17 Cal.3d 236 [131 Cal.Rptr. 55, 551 P.2d 375] People V. Pri€to .....ccccccccccccccscsssesssesseseeceees 198, 203, 204, 228, 246 (2003) 30 Cal.4th 226 [133 Cal.Rptr.2d 18, 66 P.3d 1123] XXIV TABLE OF AUTHORITIES(cont.) People Vv. RINCON-PINCAA ........c.ccecccceccesecceseceessessceceeceseeeeceseeeeccccee. 197 (1975) 14 Cal.3d 864 [123 Cal.Rptr. 119, 538 P.2d 247] People V. ROD@IO Vou... cceecccccsesessessescstssvesseatscesvacseseceseececeecececccc, 127 (2001) 93 Cal.App.4th 1350 [113 Cal.Rptr.2d 804] People V. ROBINSON ......cccccccceescssessssestscsssssssatssesessstececeeeeeecececccc.221 (2005) 37 Cal.4th 592 [36 Cal.Rptr.3d 760, 124 P.3d 363] P@OPIE V. ROGEIS .......ccccccseccesesesessesssestesacssesssesaeesiseeseeeececeececccc237 (2006) 39 Cal.4th 826 [48 Cal.Rptr.3d 1, 141 P.3d 135] People vV. ROWAN.........cccceccececcessecssescessesessecececececseees 172, 176, 177 (1992) 4 Cal.4th 238 [14 Cal.Rptr.2d 377, 841 P.2d 897] P@Ople V. S@MAYOA oe. cceceececececcscesessccscccesseceecseceeceee. cecteevstetseeeeeess213 (1997) 15 Cal.4th 795 [64 Cal.Rptr.2d 400] People v. Sandoval o......ccccccccccccscssscesescsesesseevsesssseseveeeeeeeceeoeeccccc. 127 (2001) 87 Cal.App.4th 1425 [105 Cal.Rptr.2d 504] P@Ople V. SHEIAON «0. s.ececcccccscsssssssseevsessstestatscstsseetesueeececeeeecceeccccce.215 (1989) 48 Cal.3d 935 [258 Cal.Rptr. 242, 771 P.2d 1330] Pe@ople V. SIUM oo... cececcesesceccccssesssaseesesatecsecassssesevevesteueeeceeecescccc. 112 (1973) 33 Cal.App.3d 51 [108 Cal.Rptr. 698] P@Ople V. SNCA’ 0... .ceceeecesceccesccesssesvecesssvetscevacstassescateceeeeeeteceeeccce. 197 (1993) 20 Cal.App.4th 1088 [24 Cal.Rptr.2d 922] P@OPIE V. SNOW 0.0 ...ccccccceccccessessecessssesscassceesessestuseceeeecceseeccc.228, 246 (2003) 30 Cal.4th 43 [132 Cal.Rptr.2d 271, 65 P.3d 749] People V. Stanley o....cc.ccccccccccccesececesececscesseceesseceececesees 182, 191, 232 (2006) 39 Cal.4th 913 [47 Cal.Rptr.3d 420, 140 P.3d 736] People v. Superior Court (ENgert) ......ccccccccccccsescccccssecvecececeecececcce,212 (1982) 31 Cal.3d 797 [183 Cal.Rptr. 800, 647 P.2d 76] XXV TABLE OF AUTHORITIES(cont.) P@Opl@ V. TAYlOF ....ccccccccccescecseusessesseessesecsesacecsesesseseseseeeeeceeeceececcee.232 (1990) 52 Cal.3d 719 [276 Cal.Rptr. 391, 801 P.2d 1142] P@Ople V. TROMAS 00... .ccccceccecceesscsesesscseeesesessevastasesescesestesseuececeeseces235 (1977) 19 Cal.3d 630 [139 Cal.Rptr. 594, 566 P.2d 228] P@OPIE V. TUNEL... .ecccccecsescescecssseessesesseetarsasssscsatscseseciscsseeseseseeecees 113 (1984) 37 Cal.3d 302 [208 Cal.Rptr. 196, 690 P.2d 669] P@OPIE V. VICIo.oo eecccceecccccescenscessesesstssesasacsestessseseseeseeeeeeeeceeeccece. 113 (2005) 35 Cal.4th 264 [25 Cal.Rptr.3d 337, 106 P.3d 990] P@Ople V. VON ViNAS oo... ceccceccecccesccsessescesscsecsesessesecseseeseeecess 115, 120 (1992) 11 Cal.App.4th 175 [15 Cal.Rptr.2d 112] People V. WalKOD oo. .ecccccceccecccccscseseuscstesserssecesssscsseeeeseseceseeeceeeccces.220 (1988) 47 Cal.3d 605 [253 Cal.Rptr. 863, 765 P.2d 70] P@Ople V. WASH o.oo. ececcccceccecsescsssscesescessessetsaessatseesessstesteseeeceecceeeces.62 (1993) 6 Cal.4th 215 [24 Cal.Rptr.2d 421, 861 P.2d 1107] People V. Washington .......cccccceccescscsesescesesecesessssstsceveseecececececeeeee, 116 (1958) 163 Cal.App.2d 833 [330 P.2d 67] Pe@ople V. WatSON ........cccccccccccccsssssesssssesssesteattassessssusvestseteceeceeeesA15 (1956) 46 Cal.2d 818 [299 P.2d 243] P@OpPIC V. WEAVELoo. ccccccccccccccescssesesetscsessestvaceassasssteavesteseeseeceececees 142 (2001) 26 Cal.4th 876 [111 Cal.Rptr.2d 2, 29 P.3d 103] P@Ople V. WEDD 0.0... eeececceccscsceecesssscssesssssessstassusesetesevessesssstenceseecess208 (1993) 6 Cal.4th 494 [24 Cal.Rptr.2d 779, 862 P.23d 779] P@Ople V. WHAITON 0... eeccccccecccecesessesesvecesssstatssceatsssasstesteaeeccecesecs 120 (1991) 53 Cal.3d 522 [280 Cal.Rptr. 631, 809 P.2d 290] People V. WHIESON 0.0... ccecceccescessessessssscsssssesesestesscsstestaeecececcescccecee.63 (1998) 17 Cal.4th 229 [70 Cal.Rptr.2d 321, 949 P.2d 18] XXxvi TABLE OF AUTHORITIES(cont.) P@Ople V. WINIAMS 00. eccccccecccccceseseseeseesestescatsessesevesesteveseeceeeceececc, 116 (1971) 22 Cal.App.3d 34 [99 Cal.Rptr. 103] P@Ople V. WIS 0... cececccccccccccsesseseseessesecststesecstesssssestesseesececesseseeccc. 112 (1980) 104 Cal.App.3d 433 [163 Cal.Rptr. 718] P@ople V. WOOdAIToe. .eccccecccceccsesseceesesesecstesseteseceseevesecececeseeccecc. 116 (1979) 23 Cal.3d 329 [152 Cal.Rptr. 536, 590 P.2d 391] P@Ople V. WOOUS.....eeeccseecccsesseceseseeseesesesesssesatestusteseeceeeseeececcee 128 (2006) 146 Cal.App.4th 106 [2006 Cal.App. Lexis 2055] P@OPIE V. YIIGOYEN 00... .ceccccccccseseseseevesssstssaccassccstissstueustescececececccccc. 196 (1955) 45 Cal.2d 46 [286 P.2d 1] Powell V. AlQDama oe. .eccccccccsecccsssesccssssssssacsestessessesesesceecececeececcccc.. 57 (1932) 287 U.S. 45 [53 S.Ct. 55, 77 L.Ed. 158] © Pulley V. HANriS «oo. ecccececcccccesseccesecscecccessccesseeseeceee. 148, 152, 216, 240 (1984) 465 U.S. 37 [104 S.Ct. 871, 79 L.Ed.2d 29] Ray V. State oe iecccceccccccecccsssscstsceeseevencesaeatseevasessuseteteececeseccec. 153 (Fla. 2000) 755 So.2d 604 Rhabum v. Superior Court 0......cccccccccccsecceescesececee. 41, 42, 43, 47, 53 (2006) 140 Cal.App.4th 1566 [45 Cal.Rptr.3d 464] Ring v. Arizona.......... 2, 199, 203, 206, 224, 225, 229, 230, 231, 233 (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed2d 556] ROCF V. SIMMONS ..0..c.ccccccccscsesccsecsecesesscseacacescsssseeceeeecsececeece. 215, 250 (2005) 543 U.S. 551 [125 S.Ct. 1183, 161 L.Ed.2d 1] Rosa S. v. Superior Court ....c.ccecccccecccscsscscseeecsssseeseceeceeeeeecccccccc. 128 (2002) 100 Cal.App.4th 1181 [122 Cal.Rptr.2d 866] ROSS V. OKMQNOMA 00... cece ccccesceccecesececcssecsecsecteseesecceseececce, 143, 144 (1988) 487 U.S. 81 [108 S.Ct. 2273, 101 L.Ed.2d 80] XXvii TABLE OF AUTHORITIES(cont.) SANlOSKY V. KFAMEL....eecccesscsesesssessssssessstessessesssessveseeeeeseeeceecc.235 (1982) 455 U.S. 745 [102 S.Ct. 1388, 71 L.Ed.2d 599] Simmons v. United States o......ccccccccccceccssessssscssscsssestesteeeeeeeccccc cc, 159 (1968) 390 U.S. 377 [88 S.Ct. 967, 19 L.Ed.2d 1247] SMU V. GrOOSC.....scecceessecesssessecsunsssesssisssitstesssessuseseesteeseeeeececcc cc.96 (8th Cir. 2000) 205 F.3d 1045 Spears V. MUMIN 0... ceecececctscesesssssssssessesssesisssessesseetteeeeeseececccc. 114 (10th Cir. 2003) 343 F.3d 1215 Speiser Vv. RANall 0... ecccccesccsesesssssssessesssessesseesseeseesteseeeeeeececc234 (1958) 357 U.S. 513 [78 S.Ct. 1332, 2 L.Ed.2d 1460] Slate V. BOIMALA oo... cee ceccsessssstessessssssesssticssessesseeseeteeeeeeeeeeeccc. 169 (La. 1992) 608 So.2d 966 SlAlO V. RING. .seceeceec css sesesstesssecsssssevsstsstesstesstssiseeees testes.231 (2003) 204 Ariz. 534 [65 P.3d 915, 943] Slate V. SCAICS oo... eee eec cee ccsceesessssssstssessieasesecsteeteeeeeeecceccc ce.76, 77 (Minn. 1995) 518 N.W.2d 587 Slate V. WHIEFICID o.oo cccccecsecceccsccteeteceeeeececccc [as of January 20, 2007] ....-cecccccccccccesecececeececececes.,248 Amnesty International, The Death Penalty, Death Sentences and Executions in 2005, [as of January 20, 2007]... cecccceccccccecececcecececes.248 California Commission on the Fair Administration of Justice, Commission Chair John Van de Camp Responds to Governor Arnold Schwarzenegger's Vetoes of Measures Recommended by California Administration on the Fair Administration of Justice to Prevent Wrongful Convictions, [as of December6, 2006)...eee ccc cee eesseeeeseseeeees 78 California Commission on the Fair Administration of Justice, Report and Recommendations Regarding False Confessions, [as of December6, 2006] Sette terete eeeeeeeveseaeeeteeteneeseeeseeseessisesasseeeeusuesssesesedtventtetitsriseceeccersscces. 78 Encyclopedia Britannica Online,Incest, [as of January 6, 2007]...178 XXXV TABLE OF AUTHORITIES (cont.) Encyclopedia Britannica Online, Philip Dormer Stanhope, 4th earl of Chesterfield, [as of December 29, ZOOG) ooo. eee ccc ee ceecsessesseeseseccasesscavseversarsursssvasaesasestessvasvesseseees 182 Encyclopedia Britannica Online, Sophocles, Oedipus the King, [as Of January 6, 2007]...cececcececececetesecseesevecessecerevsstestesecesecceces 178 European Union, Delegation of the European Union Commission to the USA, EU Policy and Action on the Death Penalty, [as of January 20, 2007]........ecccccccscecceeeee.250 Maisse, What it Means to Dehumanize, Beyond Intractability, [as of December 30, 2006 o.oocee ccceceseeeecsseeseesensees Wevdteeeeeeseseeseeeeees 183 Report of the Governor's Commission on Capital Punishment, Chapter 1—Introduction and Backgroundat p.1, [as of December 6, 2006] .o......c.cccccecececcesceseseesccessescesteccersecteeeeees 77, 78 State Bar of California, Attorney Search, Judith Anne Browne — 65333 [as of October 1, 2006] oo... ccecccececcccscecccecseceeseeseeeees 54 Universal Declaration of Human Rights, art. V [as of March 6, 2004] wernt a aaa a nee aaeeneenaeeaseneeeeeseeeeeeesssseseeeeeucususssenerseeetuauaasasausaceeseuegeascess249 Veto Message oof Governor Arnold Schwarzenegger, [as of December 6, 2006] ...0.....ececcccccccesccceceseeseeee78 Wikipedia, Chinatown, fas of October 1, 2006].), and therefore had 20 years experience at the time of trial. Her representation of appellant at the preliminary hearing was vigorous and meticulous. Judge Delucci was long familiar with Browne, and commented she had served as defense counselin four potential death cases in his courtroom. (1 RT 57.) The court remarked Browne had done so many trials in his courtroom that she could read his mind. (1 RT 93.) Counsel for Glover did not want anything to do with Browne, her vast experience, and the institutional expertise and resources of the public defender. The motion to recuse the public defender was a trial tactic born of concerns unrelated to whether or not Browne and Green may have beenin possession of any confidential information about Glover. (G) The Violation of the Sixth Amendment Right to Counsel Requires Reversal of the Judgment. The trial court's mistaken decision to remove the public defenderover appellant’s personal objection requires reversal of the judgment without the need to engagein an analysis of prejudice. In "The hearing required eleven days of testimony and argument over a six-month period. (2 CT 409-586; 3 CT 590-778, 781-926; 4 CT 929-1095, 1098-1149, 1160- 1227; 5 CT 1232-1372, 1376-1441, 1444-1527: 6 CT 1654-1732, 1738-1802.) 54 United States v. Gonzalez-Lopez (2006) 548 U.S. __ [126 S.Ct. 2557, 2564, 165 L.Ed.2d 409] the high court held a district court’s denial of a pro hac vice motion by a defendant's retained counselof choice because of a mistaken belief that the attorney had violated a state ethics rule was structural error which required automatic reversal of the judgment. The court explained, “It is impossible to know whatdifferent choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings . . . Harmless error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.” (/d. at p. 2565.) A like analysis should be employed in the present matter. Becausethe trial court removed the public defender from the case, there is no reliable procedure for assessing the harm to Thomas from the lower court's error. What Browne and Green might have donedifferently from Wagner and Cole can never be known. What is apparent is appellant's desire to have the public defender remain | on the case. Questioned on the record by Mr. Gaskill, appellant expressly stated his desire to have Browne remain as his lead attorney. (4 RT 414.) Even thoughthetrial court’s mistaken decision was structural error, the record confirms Thomas was prejudiced by the court’s removal of his attorneys. First, as argued above, the public defender’s office in general, and assistant public defender Brownein particular, had important expertise in capital case litigation. Because the court removed counsel over appellant's objection, he was deprived of this individual and institutional know-how when ontrial 55 for hislife. Second, the public defender was appellant's counsel of choice. At the October 16, 1995, hearing, Thomasaffirmed on the record that he wanted Browne as his attorney. (4 RT 414.) Although appellant was not entitled to appointment of counsel of choice (Williams v. Superior Court (1996) 45 Cal.App.4th 320, 327 [53 Cal.Rptr.2d 832]), once counsel was appointed and an attorney- client relationship established, Thomascertainly had a right to have his lawyers remain on the case in the absence of a disabling conflict. The erroneous ruling interfered with the attorney-client relationship and forced Thomasto gototrial with conflict counsel. Third, the cases recognize that recusal of counsel at a late stage of the proceedings can result in an undue hardship on the affected party. (/n re Marriage of Zimmerman, supra, 16 Cal.App.4th 556, 565.) Here, appellant’s lawyers were taken away over his objection during a late stage of the case: trial motions in limine. Because the public defender was removed from the case, Thomas was forced to wait for trial while successor counsel reviewed the case. The public defender wasrelieved on October 16, 1995. Trial resumed with new counsel on February 26, 1996. (10 RT 2849.) The resumption was short-lived, for Glover's motion to sever was granted on March 21, 1996. (10 CT 2979.) Appellant’s trial did not restart until June 30, 1997. (13 CT 3777.) Thomas, then, was prejudiced by a substantial delay while awaitingtrial. Fourth, because Glovers case went to trial ahead of appellant's case, Thomas was the victim of inconsistent theories 56 advanced by the government."* Without the delay necessitated by the removal of defense counsel, the district attorney would not have had the opportunity to name Glover as the shooter and, when a jury wasnot persuaded, reverse the theory and maintain Thomas pulled the trigger. For all of the foregoing reasons, the removal of defense counseloverappellant’s objection violated his rights to counsel (U.S. Const., 6th Amend.; Powell v. Alabama (1932) 287 U.S. 45, 68 [53 S.Ct. 55, 77 L.Ed. 158]; Gideonv. Wainwright (1963) 372 U.S. 335, 345 [83 S.Ct. 792, 9 L.Ed.2d 799]), a fair trial (ibid.), due process (U.S. Const. 5th & 14th Amends.), and a reliable penalty determination (U.S. Const., 8th Amend.; Woodson v. North Carolina (1976) 428 U.S. 280, 305 [96 S.Ct. 2978, 49 L.Ed.2d 944]). The judgment should be reversed. 4 The government's use of inconsistent theories is discussed below as assignmentof error numberfour. o7 ll. THE INTERROGATION OF APPELLANT BY OAKLAND DETECTIVE KOZICKI AFTER THOMAS INVOKEDHIS FIFTH AMENDMENTRIGHT TO COUNSEL WASIN VIOLATION OF EDWARDSV. ARIZONA. On August 31, 1995, the public defenderfiled trial motion number 13 to exclude from evidence appellant’s post-arrest admissions to Oakland police detective David Kozicki and EBRPD detective Kiefer. (9 CT 2444-2455.) In the motion, counsel pointed out that during an interrogation by Hayward detective Frank Daley appellant had invokedhis Fifth Amendmentright to the assistance of counsel during questioning. (9 CT 2447.) Appellant subsequently reinitiated contact with Hayward detectives concerning the Flennaugh robbery and shots fired at police officers. (/bid.) Thomas was questioned by Hayward detective Richard Allen and explained how he assisted Glover with the robbery but had nothing to do with Glover's firefight with Hayward officers. (9 CT 2447-2448.) Two days after the Allen interview, Oakland detective Kozicki questioned Thomas about the Young murder. (9 CT 2448-2449.) Defense counsel maintained appellant's waiver of counsel’s presence was restricted to the Hayward incident. (9 CT 2453-2454.) The Kozicki and Kiefer interrogation was therefore in violation of the Fifth Amendment. (/bid.) The district attorney did notfile any points and authorities in response to the motion. (14 RT 1001.) A hearing on the motion occurred after the public defender was removed as defense counsel and before the court granted a motion to severthetrials of Thomas and Glover. During the hearing, 58 the court heard testimony from five witnesses and the parties introduced a variety of exhibits. Defense counsel argued the Fifth Amendmentright to counsel is not offense-specific. Hence, when Thomasreinitiated contact with Hayward detectives, this action did not waive counsel as to the Oakland murderinvestigation, and he should not have been approached on that case. (14 RT 998.) The prosecutor opposed the motion on the ground anywaiverofrights is general and notlimited to a specific law enforcement agency. (14 RT 1008.) On March 6, 1995, the court denied the motion. (15 RT 1186- 1189.) As a result, Kozicki testified at trial to appellant’s incriminating statements. (57 RT 5914-5954.) The trial court’s decision was an abuse ofdiscretion, for the interrogation about the Oakland murder was beyond the scope of appellant’s Fifth Amendmentwaiver and forbidden by Edwardsv. Arizona (1981) 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378]. (A) Testimony at the Evidence Code Section 402 Hearing. Frank Daley, a Hayward robbery-homicide detective, was the lead investigator for the Flennaugh incident. (12 RT 778.) On December24, 1992, Thomasturned himself in at the Oakland police Station. (12 RT 778-779.) Appellant was transported to Hayward, and Daley questioned Thomas sometime around 2:00 or 3:00 in the morning. (12 RT 778-780.) Before questioning appellant, Daley read him a standard Miranda admonition. (12 RT 782.) Thomas acknowledged he understoodhis rights, agreed to talk to Daley, and signed the admonition form. (12 RT 783.) Aboutthirty minutes into the interview, Thomassaid,“I’m not going to say anything else until| 59 talk to a lawyer becauseI'm telling you what | know. | can’t do no more than that. | can’t do better than that." (12 RT 791.) Daley informed appellant that he could no longer ask him any questions. In the event Thomas wanted to speak to him, appellant would have to initiate the contact. (12 RT 784.) Daley then terminated the interview. (/bid.) Some time after 4:00 p.m. that same day, Thomas contacted Anna Christensen, a community service officer in the Haywardjail, and asked to talk to a detective. (12 RT 799-800.) In her hearing testimony, Christensen could not recall appellant’s exact words. (12 RT 800.) Christensen placed a phone call to the detective bureau but no one picked up the phone. (12 RT 796-797.) Detective Allen came into the jail area, and Christensen advised him that Thomas wantedto talk to a detective. (12 RT 797.) Allen testified that the jailer told him that appellant wanted to talk to Daley. (12 RT 878.) Christensen also said appellant wanted to talk to Daley or Allen about his case. (/bid.) Allen explained Daley had left for the Christmasholiday. (/bid.) Christensen opened the cell door and Allen had a brief conversation with appellant. (12 RT 879.) Based upon a prior conversation with Daley, Allen knew that appellant had invoked his rights. (12 RT 880.) Allen asked Thomasif he had invoked, and appellant confirmed he had. (/bid.) SA transcript of the invocation of rights was marked as defense exhibit A. Appellant's exact statement was,“I’m not got[sic] to say anything else until | talk to a lawyer. Because I’m telling you what | know. | can’t, | can’t do no more than that. | can’t do better than that.” (12 RT 791.) 60 Thomas said he had talked to a lawyer and wanted to makethis right and talk about it. (/bid.) Thomas stated he did not wantto take the fall for shooting at a police officer or a robbery. (12 RT 884.) Allen was not prepared to conduct an interview andleft to think aboutit. (12 RT 880-881.) Allen decided to question Thomas and moved him from thejail to an interview room. (12. RT 881.) Allen read a standard Miranda admonition of rights form to appellant. (12 RT 881-882.) Thomas signed the form and acknowledged he wished to talk to the detective. (12 RT 883.) Concerning the Flennaugh incident, appellant explained he had backed up Glover, but he did not shoot at any police officers. (12 RT 888.) During the interview, Allen questioned Thomas about the Hayward case and nothing else. (12 RT 894.) Allen did not question Thomas about the Oakland homicide, and appellant said nothing about that matter. (12 RT 891.) Appellant did not ask to talk to anyone about the murder, and he never asked to talk to Oakland detectives. (12 RT 891, 896-897.) On December 26, 1992, Oakland detective Kozicki learned that Thomas had made a statement to Hayward detectives. 99 RT 544.) He also knew appellant had invokedhis right to counselor the right to remain silent. (9 RT 549, 554.) Kozicki did not have any information appellant wished to talk to Oakland detectives about the Young homicide. (9 RT 551.) As the Young case was a joint investigation with the EBRPDP, Kozicki went to the Hayward station along with park department detective Laurence Kiefer. (9 RT 526- 527.) In Hayward, Kozicki and Kiefer met with detective Allen. (9 61 RT 527.) The homicide investigators talked to Allen about appellant’s invocation of rights. (9 RT 547.) Kozicki conferred with two prosecutors about whether he should interview Thomas. (9 RT 556.) A recording of the interrogation in which Thomasinvoked his rights was provided to the district attorney. (9 RT 555.) A deputy district attorney told Kozicki to go ahead and attempt to question appellant. (9 RT 556-557.) - Thomas was brought to an interview room, and Allen introduced him to the homicide investigators. (9 RT 528.) After Allen left the room, Kozicki explained he was an Oakland homicide investigator and wanted to ask him some questions about an investigation he was conducting. (9 RT 528-529.) Kozicki advised Thomas of his Miranda rights by reading the information from a standard form." (9 RT 529-530.) Appellant acknowledged he understood his rights and agreed to talk to the detectives. (9 RT 531.) Thomas then made the admissions described above in the statementof facts, which were the subjectof the motion.”” (B) Standard of Review. In reviewing a trial court's ruling on Fifth Amendmentissues, the appellate court makes an independent determination of the legal question. (People v. Wash (1993) 6 Cal.4th 215, 236 [24 Cal.Rptr.2d 421, 861 P.2d 1107].) A reviewing court will examine the uncontroverted facts in order to make an independent '® A copy of the admonition form signed by appellant was identified as exhibit 1. (9 RT 530; 1 CT 297.) ” See Statementof Facts: Guilt Phase, (3) Appellant’s Arrest and Interrogation. 62 determination. (People v. Whitson (1998) 17 Cal.4th 229, 248 [70 Cal.Rptr.2d 321, 949 P.2d 18].) (C) Appellant Invoked the Fifth Amendment Right to Counsel Without Limitation, So Any QuestioningInitiated by Law EnforcementViolated Edwardsv.Arizona. In Edwardsv. Arizona, supra, 451 U.S. 477, a murder suspect informed his interrogator that he wanted a lawyer andthe interview was terminated. The following day, additional officers questioned Edwards, and he implicated himself in the crime. The high court ruled the statement wasobtainedin violation of the Fifth Amendment right to counsel. According to the court, when a suspect has “expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been madeavailable to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." (/d. at pp. 484-485.) The Edwards rule is designed to prevent police from badgering a suspect into waiving his previously asserted Miranda rights. (Michigan v. Harvey (1990) 494 U.S. 344, 350 [110 S.Ct. 1176, 108 L.Ed.2d 293].) It insures that any statement made in subsequent interrogation is not a consequence of coercion. (Minnick v. Mississippi (1990) 498 U.S. 146, 151 [111 S.Ct. 486, 112 L.Ed.2d 489].) The rule is a bright-line test calculated to provide "clear and unequivocal" guidelines to law enforcement. (Arizonav. Roberson (1988) 486 U.S. 675, 682 [108 S.Ct. 2093, 100L.Ed.2d 704].) The Edwards rule is not offense specific. (Id. at p. 684.) Instead, “[o]Jnce a suspect invokes the Miranda right to counsel for 63 interrogation regarding one offense, he many not be reapproached regarding any offense unless counsel is present.” (McNeil v. Wisconsin (1991) 501 U.S. 171, 177 [111 S.Ct. 2204, 115 L.Ed.2d 158].) Here, Thomas unequivocally invoked his Fifth Amendment right to the assistance of counsel. (12 RT 791.) Appellant’s invocation was phrased in general terms. Hence, law enforcement was barred from initiating any further questioning of Thomas. (Edwards v. Arizona, supra, 451 U.S. 477, 484-485.) It makes no difference that Kozicki approached appellant in connection with a different investigation from the case in which Thomas invoked the right to counsel. (McNeil v. Wisconsin, supra, 501 U.S. 171, 177.) The importance of appellant’s unqualified decision to halt the interrogation and rely upon the assistance of counsel is demonstrated by the contrasting results in two cases, Colorado v. Spring (1987) 479 U.S. 564 [107 S.Ct. 851, 93 L.Ed.2d 954], and Arizona v. Roberson, supra, 486 U.S. 675. In Spring, an informant told federal Alcohol, Tobacco, and Firearms [ATF] agents that Spring had admitted shooting a man in Colorado and was involved in interstate transportation of stolen firearms. At the time the information was provided, the murder victim had not been reported missing and his remains had not been discovered. An undercover agent arrangeda firearms transaction with Spring, and the suspect wasarrested. Following his arrest, Spring was advised of his Miranda rights and agreedto talk. After questioning about the incident that led to the arrest, ATF agents asked Spring about his criminal history. 64 Spring admitted he shot an aunt when he was 10-years-old. Asked if he had shot anyoneelse, the suspect admitted he had shot some guy once. Spring denied ever being in Colorado. Nearly two monthslater, while Spring wasstill incarcerated for the firearms offense, Colorado officers visited him. They notified Spring the subject of their visit was a murder. Spring was advised of his Fifth Amendmentrights and consented to an interview in which he confessed to the murder. The Colorado Supreme Court found the confession was tainted by the initial ATF interrogation as the defendant wasnot informed he would be questioned aboutcrimesin addition to the firearmssale. The high court reversed the decision. The court held theinitial Miranda admonition correctly stated the defendant's Fifth Amendmentrights and was in no waylimited or qualified. Instead, the advisementof rights told the suspect anything he said could be used against him. The defendant did not need to be informed in advance ofall possible subjects of the interrogation. (Colorado v. Spring, supra, 479 U.S. 564, 576-577.) Because the defendant’s waiver of rights was also unqualified, the failure to advise him in advance of every potential area of questioning did not affect the validity of the waiver. (/bid.) The court reached a very different conclusion in Arizonav. Roberson, supra, 486 U.S. 675. In that case, a burglary suspect was advised of his Fifth Amendment rights and stated he wanted a lawyer before answering any questions. Three days later, an officer who was unawareof the suspect’s invocation of rights questioned him about a different burglary. This time the suspect waived his 65 rights and confessed to the crime. Thetrial court suppressed the confession on the ground it had been obtained in violation of the Edwards rule. The state supreme court affirmed the ruling and the government asked the federal high court to craft an exception to _ Edwards for cases where the second interrogation was unrelated to the case in which the right to counsel had been invoked. The high court declined to fashion the exemption sought by the state. The court explained that a suspect who asks for an attorney has put into words a belief that he is not capable of withstanding the inherently coercive atmosphere of in-custody interrogation without the benefit of counsel. (Anzona v. Roberson, Supra 486 U.S. 675, 681.) If the police later approach the suspect again, it is presumed any waiver of rights is at the behest of law enforcement rather than a free decision by the individual under arrest. (/bid.) These presumptions are not dispelled if the police approach the suspect about a separate investigation. (/d. at p. 683.) The court contrasted the facts in Roberson with the scenario in Spring. In the latter case, the waiverof rights was not limited, soit was presumed the defendant was comfortable enough with custodial interrogation to answer questions about any matter without the assistance of counsel. In other words, a waiverofrights the suspect does notlimit in any way is understood to be a general waiver. (Arizona v. Roberson, supra, 486 U.S. 675, 684.) In Roberson, the suspect’s decision to take refuge in his Fifth Amendmentrights was likewise notlimited to a specific investigation and was considered a general invocation of the right to counsel. As a result, it made no difference to the result that the police approached him about a 66 different investigation. (/bid.) | Here, appellant did not in any manner restrict or limit his invocation of the Fifth Amendmentright to counsel. Thomasdid not refuse to talk about some subjects but agree to be questioned about others. Instead, he cut off all questioning. (12 RT 791.) The police were therefore prohibited from approaching appellant about the Flennaugh matter or any otherinvestigation. (D) Appellant’s Initiation of Contact With the Police and Waiver of Rights Was Limited to the Hayward Robbery Investigation Unfortunately, appellant's decision to rely upon the Fifth Amendmentin the early morning hours of December24, 1992, is not the end of the matter. As explained above,in the late afternoon on December 24, 1992, Thomascontacted a jailer and askedto talk to a Hayward detective. (12 RT 799-800.) Allen spoke to appellant to clarify the request. (12 RT 880.) Thomas explained he had talked to a lawyer, and he did not wantto take thefall for shooting at police officers or a robbery. (12 RT 884.) In other words, appellant wanted to talk about the Flennaughincident. This request defined the scope of appellant’s waiverof Fifth Amendmentrights. The high court considered questioninginitiated by the suspect in Oregon v. Bradshaw (1983) 1039 [103 S.Ct. 2830, 77 L.Ed.2d 405]. In that case, the body of a young man wasdiscoveredin the passenger seat of his own pickup truck. The vehicle had left the road, struck a tree, and cameto rest on its passengerside in a creek. The victim died from injuries sustained in the accident and asphyxiation from drowning. Bradshaw denied involvement in the 67 death, but acknowledged he had provided alcohol to the decedent. Bradshaw wasplaced underarrestfor furnishing alcohol to a minor and advised of his Fifth Amendment rights. A police officer described for Bradshaw a theory of the case that placed him behind the wheel of the wreckedtruck. Bradshaw denied involvement and asked for an attorney. The interrogation was terminated. During his transfer from the police station to county jail, Bradshaw initiated a general discussion by asking, “Well, what is going to happen to me now?”In the conversation that followed, the officer suggested Bradshaw could help himself by taking a polygraph test. Bradshaw agreed and wasgiven thetest the next day. After the test, the examiner told Bradshaw that he had not been truthful. Bradshaw admitted he wasthe driver of the truck and had passed out before the accident. The court held the confession was admissible. The court reasoned the suspect’s question had “evidenced a willingness and a desire for a generalized discussion about the investigation . . .” (Oregon v. Bradshaw, supra, 462 U.S. 1039, 1045-1046.) The majority went on to explain that when a suspect initiates further interaction with law enforcement, the government still has the burden to demonstrate a knowing andintelligent waiver of the Fifth Amendmentright to have counsel present during interrogation. (/d. at p. 1044.) The testimony presented at the hearing on appellant’s motion showedheinitiated further contact with the Hayward detectives. The community service officer on duty in the jail could not recall appellant's exact words. (12 RT 800.) However, she did recall that 68 appellant askedto talk to a detective. (12 RT 797.) Detective Allen testified the jailer informed him that Thomas had asked to speakto Daley, the detective who had questioned him about the Hayward incident. (12 RT 778-780, 878.) Allen talked to appellant in the jail, and confirmed he wanted to talk about the Hayward incident. (12 RT 884.) The detective subsequently questioned Thomas about the Hayward matter and nothing else. (12 RT 894.) Allen did not question Thomas about the Oakland murder, and appellant did not askto talk to anyone about that case. (12 RT 891, 896-897.) Given these facts, the present case is distinguishable from Oregon v. Bradshaw, supra, 462 U.S. 1039. Viewed in context, . appellant’s waiverof the right to counsel waslimited to the Hayward case. Unlike Bradshaw, where the suspect’s open-ended question washeld to be a general waiverof rights, appellant make it clear to the detective that he only wanted to talk about the Hayward incident. Like the suspect in Arizona v. Roberson, supra, 486 U.S. 675, the court rejected the state’s argument the suspect’s invocation of the right to counsel was limited to the matter in which the Fifth Amendment was invoked. The court commented, “unless he otherwise states [citation], there is no reason to assume that a suspect's state of mind is in any way offense-specific [citation].” (/d. at p. 684.) _ In the present case, appellant’s waiver of Fifth Amendment rights was limited to the Hayward investigation. When Allen attempted to clarify appellant’s request, Thomas told him “that he didn’t want to take anyfall in regards to shooting at a police officer or the robbery portion of it, and he wanted to makethat right and he 69 wantedto talk to me.” (12 RT 884.) From Allen’s testimony, then,it is apparent Thomas was willing to waive his Fifth Amendment privileges only as to the Hayward incident. His willingness to be questioned about the Hayward matter was not a general waiver of the Fifth Amendmentright to counsel. The interrogation about the Oakland murder investigation was therefore contrary to the Fifth Amendment and Edwards v. Arizona, supra, 451 U.S. 477. That Kozicki advised Thomas of his Miranda rights and obtained a waiver from him does not cure the Fifth Amendment violation. Any statement obtained in violation of the Fifth Amendmentright to counsel is involuntary and inadmissible “even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards.” (McNeil v. Wisconsin, supra, 501 U.S. 171, 177.) Especially in a caselike this in which three days elapsed between the request for counsel and the interrogation about the Oakland murdercase, the mererepetition of Miranda warnings cannot overcome the presumption of coercion that results from prolonged incarceration. (See Arizona v. Roberson, supra, 486 U.S. 675, 686.) The Fifth Amendment violation was not cured by appellant’s statement to Allen that he had talked to a lawyer and wantedto talk about the Hayward investigation. The Edwardsrule prohibits police- initiated interrogation unless counselis physically present whether or not the suspect has consulted with an attorney. (Minnick v. Mississippi, Supra, 498 U.S. 146, 153.) The trial court committed error in denying the motion to exclude appellant’s admissions to Kozicki. 70 (E) The Constitutional Error Requires Reversal of the Judgment. Prejudice from erroneous admission of statements obtained in violation of the Fifth Amendment is measured according to the standard of Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. (Arizona v. Fulminante (1991) 499 U.S. 279, 295 {111 S.Ct. 1246, 113 L.Ed.2d 302].) Under Chapman, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Chapman v. California, supra, 386 U.S. 18, 24.) This test for prejudice is readily satisfied in the present case. Appellant's admissions to Kozicki were devastating. First, Thomas changed his account several times, beginning with a rather innocuous story about merely helping Glover use a relative’s ATM card (57 RT 5917), to retrieving an AK-47 for Glover's use in connection with a car theft to facilitate commission of a Safeway robbery (57 RT 5921), to admitting he went to Point Richmond with Glover in the Mustang but denying sexual intercourse with Young | (57 RT 5924), to acknowledging that he raped the victim (57 RT 9927). The shifting versions of events provided the jury with ample reason to doubt his veracity and conclude he wasinstead lying due to consciousnessof guilt. During the guilt phase, the jury was given CALJIC No. 2.03, the standard instruction on false statements and consciousnessof guilt. (60 RT 6214; 14 CT 3929.) The prosecutor called the jury’s attention to this instruction. (69 RT 6105-6106.) In his guilt phase closing argument, the prosecutor savaged appellant and made liberal use of the admissions to Kozicki to 71 defame him. The district attorney parsed the Kozicki interview into four different versions of events. (59 RT 6101-6105.) In his view, _ the statements were intended to shift the blame to Glover. (59 RT 6105.) The prosecutor argued Thomastold the truth in admitting he had handled the AK-47, but everything else he said was a lie. (59 RT 6096.) The admissions to Kozicki could not be harmless beyond a reasonable doubt. Instead, the statements linked Thomas to the crimes and thereby corroborated the testimony of William Dials, who testified appellant resembled one of the perpetrators of the Young kidnapping. (52 RT 5369-5370.) By acknowledging he had handled the AK-47 at the Oakland crime scene,. Thomas provided the government with an opening to argue in guilt phase that he was the actual killer. (69 RT 6096.) Onthefirst day of guilt phase deliberations, the jury asked for a transcript of appellant’s admissions to Kozicki. (13 CT 3872.) In response to this question, the court had the jury brought into the courtroom, transcripts were passed out, and exhibit 50—the audiotape of appellant'sinitial taped statement—was played in open court. (60 RT 6276-6277.) Again during penalty deliberations, the jury asked to listen to the tape. (14 CT 4053.) The request was granted and—for the third time—thejury listened to the audiotaped admissions in open court. (66 RT 7094.) The jury, then, plainly viewed the interrogation as a vital element of the case against Thomas. The Fifth Amendmenterror in overruling the motion to exclude appellant’s Statements to Kozicki was not harmless beyond a 72 reasonable doubt. The judgment must be reversed, for the convictions and sentence are contrary to the Fifth Amendment right to counsel (Edwardsv. Arizona, supra, 451 U.S. 477), right to a fair trial (U.S. Const., 6th Amend.), due process (U.S. Const., 5th & 14th Amends.), and right to a reliable penalty determination (U.S. Const., 8th Amend., Woodsonv. North Carolina, supra, 428 U.S. 280). 13 il. THE FAILURE OF LAW ENFORCEMENTTO RECORD THE ENTIRE INTERROGATION OF APPELLANT RATHER THAN A SMALL FRACTION OF THE SESSION VIOLATEDTHEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS. In conjunction with the Edwards motion, the public defender filed trial motion number 14 to exclude appellant's December 26, 1992, admissions to detectives Kozicki and Kiefer for additional constitutional violations attributable to the failure to record the complete interrogation. According to the available evidence, the detectives had questioned appellant about the Young homicide for slightly more than four hours; however, only 54 minutes of the interrogation was recorded on audiotape.’® Defense counsel maintained the failure to make an unabridged record of the interrogation resulted in a due process violation due to the irretrievable loss of crucial evidence in a death penalty case which was favorable to the accused, including appellant’s original, unexpurgated expressions of remorse and insistence that he did not want the victim harmed. (Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215]; Arizona v. Youngblood (1988) 488 U.S. 91 [109 S.Ct. 333, 102 L.Ed.2d 281].) Finally, the motion argued appellant's admissions should be excluded because his waiver of '® The recording was donein two stages. In thefirst recorded interrogation, which was admitted at trial as exhibit 50, Thomas was asked questions about the actions of Glover and himself during the Young incident. In the second or so-called Aranda interrogation, appellant was asked about his own actions without mention of 74 rights was a result of compulsion. (8 CT 2361-2384.) A hearing on the motion was conducted at the sametime as the Edwards motion. (9 RT 514.) On March 6, 1996, the court denied the motion. (15 RT 1182.) The ruling was an abuse of discretion. (A) Failure to Make a Verbatim Recording of the Complete interrogation. In Stephan v. State (Alaska 1985) 711 P.2d 1156, 1157, the Alaska Supreme Court held the due process clause of the state constitution required law enforcementto tape record the questioning of criminal suspects. The court stressed the recording must include the complete interrogation, including the advisement of Fifth Amendmentrights. (/d. at p. 1162.) To ensure police compliance, the court held the unexcusedfailure to make anelectronic recording would render any statement by the accused inadmissible. (/d. at p. 1163.) The court explained its decision was “a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his right against self-incrimination, and, ultimately, his right to a fair trial.” (Stephanv. State, supra, 711 P.2d 1156, 1159-1160.) In addition to protecting the rights of the criminal suspect, a verbatim recording “protects the public’s interest in honest and effective law enforcement, and the individual interests of police officers wrongfully accused of impropertactics.” (/d. at p. 1161.) Finally, the recording requirement protected the integrity of the Glover. 75 judiciary, for judges would no longer have to rule on the admissibility of a challenged confession on the basis of the testimony of an interested witness. (/d. at p. 1164.) In State v. Scales (Minn. 1995) 518 N.W.2d 587, 592, the Minnesota Supreme Court agreed with the reasoning of Stephan and held asa judicially declared rule of criminal procedure that “a custodial interrogation, including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.” . In Commonwealth v. DiGiambattista (2004) 442 Mass. 423 [813 N.E.2d 516] the Supreme Judicial Court of Massachusetts described the many benefits which flow from making a complete recording of interrogations, most of which inure to the government rather than the accused. (/d. at pp. 442-443.) These benefits include a deterrent effect on police misconduct, reduction in the numberand length of motions to suppress custodial interrogations, and an accurate record for the fact finder attrial. (/d. at p. 442.) Rather than adopt a rule of exclusion, the court determined to encourage verbatim recording of complete interrogations by holding the defendant is entitled to a cautionary instruction whenever the governmentfails to make an electronic recording of his interrogation. (/d. at pp. 447-448.) In addition to court decisions, the national trend towards mandatory recording of interrogations can be seen in the actions of legislatures. Illinois, Texas, Maine, and the District of Columbia have all passed statutes requiring the recording of interrogations 76 undercertain circumstances. (lraola, The Electronic Recording of Criminal Interrogations (2006) 40 U. Rich. L.Rev. 463, 475.) The Uniform Rules of Criminal Procedure and the Model Codeof Pre- Arraignment Procedures both contain a recording requirement. (State v. Scales, supra, 518 N.W.2d 587, 591.) Finally, the common law nations of Great Britain, Canada, and Australia require a verbatim record of custodial interrogations. (Donovan & Rhodes, The Case for Recording Interrogations (2002) 26 Champion 12, 13- 14.) Appellant recognizes this Court has in the past rejected a similar argument grounded upon the Stephan decision. (People v. Holt (1997) 15 Cal.4th 619, 664 [63 Cal.Rptr.2d 782, 937 P.2d 213].) Events in the decade since Holt justify a reexamination of the issue. On March 4, 2000, former Illinois Governor George H. Ryan appointed a commission to study howthe state’s capital punishment system could be reformed. (Report of the Governor's Commission on Capital Punishment, Chapter 1—Introduction and Backgroundat p. 1, [as of December 6, 2006] [hereafter Commission. Report].) Two years later, the commission issued a report containing 85 recommendations for corrections to how the death penalty was enforced in the state. (Sanger, Comparison of the Illinois Commission Report on Capital Punishment With The Capital Punishment System in California (2003) 44 Santa Clara L.Rev. 101, 104 [hereafter Comparison].) Recommendation numberfour stated, “Custodial interrogations of a suspect in a homicide case occurring at a police facility should be videotaped. Videotaping should not 17 include merely the statement made by the suspect after the interrogation, but the entire interrogation process.” (Commission Report, supra, Chapter 2—Police And Pretrial Investigation at p. 24.) As of the present writing, California law does not mandate the recording of post-arrest interrogations in homicide cases. (Comparison, supra, 44 Santa Clara L.Rev. 101, 124-125.) However, this may changein the nearfuture. On July 25, 2006, the California Commission on the Fair Administration of Justice—an independent study group established by a resolution of the state Senate—published a report recommending the Legislature adopt a Statute requiring the electronic recording of the entirety of any custodial interrogation of a suspect in a serious felony when the questioning occurs at a place of detention. (California Commission on the Fair Administration of Justice, Report and Recommendations Regarding. False Confessions, [as of December6, 2006].) The proposal was quickly accepted and passed by the Legislature in a slightly modified form that limited the recording requirement to homicides and violent felonies. (Sen. Bill No. 171 (2005-2006 Reg. Sess.).) The measure was, however, vetoed by the Governor on September 30, 2006. In his veto message, the Governor stated he supported the underlying concept, and encouraged the Legislature to remedy perceived flaws in the legislation. (Veto Message of Governor Arnold Schwarzenegger, [as of December 6, 2006].) The measure will be introduced anew in the 2006-2007 session of the Legislature. (California Commission on the Fair Administration of 78 Justice, Commission Chair John Van de Camp Responds to Governor Amold Schwarzeneggers Vetoes of Measures Recommended by California Administration on the Fair Administration of Justice to Prevent Wrongful Convictions, [as of December6, 2006].) In summary, there is a nationwide movement towards a general requirement for verbatim recordings of interrogations in homicide cases. This trend, beginning with Stephan v. State, supra, 711 P.2d 1156, has reached California and been endorsed by the California Commission on the Fair Administration of Justice, the Legislature, and, in general terms, the governor. An exact record of interrogations is desirable for myriad reasons. As seen above, an electronic record of interrogations protects the suspect’s Fifth Amendment rights against self- incrimination and to the assistance of counsel, as well as the Sixth Amendmentright to a fair trial. (Stephan v. State, supra, 711 P.2d 1156, 1159-1160.) A verbatim recording protects police officers against unfounded claims of misconduct. (Commonwealth v. DiGiambattista, supra, 813 N.E.2d 516, 530.) An electronic recording benefits the courts by reducing the number and length of motions to exclude confessions(ibid.), and permits judges to decide admissibility issues on the basis of an accurate record rather than a “swearing contest” between the police and the defendant (The Electronic Recording of Criminal Interrogations, supra, 40 U. Rich. L.Rev. 463, 477). Perhaps most importantly, an accurate record assists the fact finder at trial. (Commonwealth v. DiGiambattista, supra, 813 N.E.2d 516, 530.) 19 In his testimony at the 402 hearing, Kozicki acknowledged the failure to record the complete interrogation of appellant. He | explained the Oakland Police Department had a written policy to not tape aninitial interrogation. (9 RT 561.) Instead, policy called for making a recording at the conclusion of the interview, after all information had been gathered. (/bid.) Kozicki estimated Thomas was questioned for two and a half hours before taping started. (9 RT 559.) Kozicki testified the detectives questioned Thomas from 3:50 to 6:34 p.m. before starting the audio recording. (9 RT 531.) According to his notes, the questioning was interrupted for breaks between 4:35 and 4:50, and again from 6:15 from 6:30. (9 RT 560.) Appellant was questioned on tape from 6:34 to 7:10. (9 RT 533.) Following a break, Thomas was questioned for a so-called Aranda statement from 7:34 to 7:52 in the evening.'® (/bid.) The detectives, then, could easily have made a complete verbatim record of the interrogation. Kozicki had a tape recorder with him, but chose notto useit from the outset of the interrogation. (9 RT 558-559.) He failed to use the tape recorder until the real interrogation was over and he wassatisfied he could memorialize damaging admissions by Thomas. A verbatim record was not made simply because Kozicki chose not to make one. Moreover, the interview room where Thomas was questioned at the Hayward station was equipped to videotapeinterrogations. (9 RT 561.) Indeed, Allen had used the equipment to record his "9 People v. Aranda, supra, 63 Cal.2d 518. 80 interrogation of appellant—including the advisement of rights—on December 24, 1992. (12 RT 881, 883.) The Oakland police department policy against making a complete record of interrogation worked to the government’s benefit. Without literal record, Kozicki and Kiefer were able to deny making any threats or promises to appellant without fear of possible contradiction by a disinterested record. (9 RT 543; 11 RT 706) Without a complete recording, the district attorney could disparage as false anything appellant said which did not conform to the government's theory of the case. (59 RT 6096.) Finally, lacking a record of appellant’s demeanor during interrogation, the prosecutor was able to sneer at his statement he did not want anything to happen to Young andscoff at appellant’s expressions of remorse as phony andself-serving. (66 RT 6973.) The government, then, had everything to gain from stage-managing the interrogation and— without any threat of sanction from the court—nothing to lose by failure to make a verbatim record of the proceeding. For generations the high court has held that a jury trial is a searchforthe truth. (Banks v. Dretke (2004) 540 U.S. 668, 696 [124 S.Ct. 1256, 157 L.Ed.2d 1166].) By meansof trial motion 14, the defense provided the court with an opportunity to redress the due process violation that was a consequence of the government's manipulation of the interrogation. Denial of the motion permitted the district attorney to introduce selected statements by appellant ripped out of context and stripped of emotional content. Unable to seeor, at a minimum, hear the complete interrogation, the jury wasleft to determine important facts in a vacuum. The lower court’s decision 81 was an abuseofdiscretion. (B) The Deliberate Destruction of Exculpatory Evidence Violated the Fifth and Fourteen Amendments Right to Due Process. The deliberate, bad faith failure to record the interrogation resulted in the irretrievable loss of exculpatory evidence. The high court first considered the government's duty to preserve evidence on behalf of the accusedin California v. Trombetta (1984) 467 U.S. 479 [104 S.Ct. 2528, 81 L.Ed.2d 413]. The court held the duty to preserve evidence was“limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (/d. at pp. 488-489 (footnote omitted).) The court further narrowed the duty to preserve evidence in Arizona v. Youngblood, supra, 488 U.S. 51 by holding the failure to maintain potentially useful evidence does not violate due processin the absence of a showing of bad faith on the part of law enforcement. “Under these federal decisions, a defendant claiming a due process violation based on the failure to preserve evidence must show the exculpatory value of the evidence at issue was apparent before it was destroyed, and that the defendant could not obtain comparable evidence by other reasonable means. [Citation.] The defendant must also show badfaith on the part of the police in failing to preserve potentially useful evidence. [Citation.]” (People v. 82 Frye (1998) 18 Cal.4th 894, 942-943 [77 Cal.Rptr.2d 25, 959 P.2d 183].) Here, the deliberate failure to record the entire interrogation resulted in the irretrievable loss of favorable material evidence. As to the guilt phase, the failure to make an electronic record resulted in the loss of material evidence relevant to the special circumstances. For a non-killer to be eligible for capital punishment, the individual must have either a specific intent to kill or be a major participant who acts with reckless indifference to human life. (Tison v. Arizona (1987) 481 U.S. 137, 158 [107 S.Ct. 1676, 95 L.Ed.2d 127].) In this case,in the unrecorded majority of the interrogation, Thomas denied an intent to kill and his account of his actions suggested appellant was nothing more than a minor player in the crime. A verbatim record of this critical portion of the interrogation would have been exculpatory on the felony-murder special circumstances that made Thomaseligible for the death penalty. As for penalty, remorse is universally acknowledged as mitigation relevant to the sentencing decision. (People v. Ervin (2000) 22 Cal.4th 48, 103 [91 Cal.Rptr.2d 623, 990 P.2d 506].) Preservation of a suspect's expressions of remorse in a potential death penalty case is therefore material exculpatory evidence as to penalty. In this case, for the statements made before taping started, there is no physical record other than the notes taken by Kozicki and Kiefer. However, these notes are not verbatim, so appellant’s precise statements have been lost. Furthermore, the notes fail to make any record of the questions that prompted appellant's 83 responses. (9 RT 570.) As counsel noted in the written motion, failure to make a verbatim record resulted in the permanentloss of context for appellant’s admissions. (8 CT 2365.) Context is not restored by a partial recording of the session made only after completionof the “real” interrogation. (8 CT 2369.) Before any recording was done, Thomastold the detectives he did not want the victim harmed. (8 CT 2398 [Kozicki notes], 2410 [Kiefer notes].) Appellant described how he had urged Gloverto tie up Young and leave her onthe hill. (8 CT 2394 [Kozicki notes], 2407 [Kiefer notes].) Thomas bemoanedthe fact he had a hardlife and experienced nothing but problems. (8 CT 2397 [Kozicki notes].) Appellant affirmed his belief in God. (8 CT 2410 [Kiefer notes].) After the true interrogation was completed, Kozicki stage- managed appellant’s first audiotaped statement.2° Kozicki asked leading questions, and appellant's answers were frequently nothing more than a monosyllable: yes or no. On the tape, Thomas stated he told Glover to simply leave the victim. (Exhibit 50-A at pp. 12, 21.) Asked if he was sorry about what happened to Young and his role and the crimes, appellant answered yes. (Exhibit 50-A at p. 19.) The second tape, the so-called Arandainterview, was nothing more than a series of leading questions intended to elicit incriminating statements. (9 CT 2663-2674.) These facts demonstrate a due process violation consistent with the requirements of California v. Trombetta, supra, 467 U.S. *° As seen above,the first audiotape was identified as exhibit 50 and playedfor the jury. Referencesto a transcript of the tape are 84 479, and Anzona v. Youngblood, supra, 488 U.S. 51. The loss of context, questions, and appellant’s exact statements deprived Thomas of material exculpatory evidence as to both guilt and penalty. The exculpatory value ofthis information was knownto law enforcement before it was allowed to disappear. Particularly after questioning Glover on December 24, 1992, it should have been apparent to the detectives that the homicide was murder and a potential death penalty case.*’ As the public defender pointed outin the trial motion, the investigation was a high profile matter, with the victim’s pastor publicly demanding the death penalty for herkillers. (8 CT 2378.) The intentionalfailure to make a verbatim record of the interrogation was unconscionable and prejudicial. The lower court committed error in denying the motion to exclude appellant’s admissions due to the failure to make an electronic record of the entire interrogation. (C) Appellant’s Waiver of Fifth Amendment Rights Was Not Knowing,Intelligent, and Voluntary. In Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974] the court held the prosecution cannot introduce the statements of a criminal defendant which are a result of custodial interrogation without demonstrating the employment of procedural safeguards adequate to secure theprivilege againstself- incrimination. (/d. at pp. 444-445, 468-470.) For any post-arrest statement to be admissible, the suspect must make a knowing and to exhibit 51-A. *' Kozicki and Kiefertestified they had interrogated Glover on 85 intelligent waiverof the rights to silence and counsel. (/d. at p. 475.) The issue of whether an accused has made a knowing and intelligent waiver of Fifth Amendmentrights is determined by an examination of the totality of the circumstances surrounding the interrogation. (Fare v. Michael C. (1979) 442 U.S. 707, 724-725 [99 S.Ct. 2560, 61 L.Ed.2d 197].) The circumstances include the suspect's age, experience, education, background, intelligence, and capacity to understand the protections of the Fifth Amendment and the consequences of giving up those rights. (/d. at p. 725; North Carolina v. Butler (1979) 441 U.S. 369, 375 [99 S.Ct. 1755, 60 L.Ed.2d 286].) The court has explained the issue has two components: first, whether the waiver is voluntary rather than a consequence of intimidation, coercion, or deception; second, whether the waiver was madewith full awarenessof the rights being abandoned and the consequences of waiving Fifth Amendment privileges. (Moran v. Burbine (1986) 475 U.S. 412, 421 [106 S.Ct. 1135, 89 L.Ed.2d 410].) In this case, the detectives used coercive and deceptive methods to persuade Thomasto talk to them. As explained above, the detectives contacted appellant despite the fact they knew he had invoked his Fifth Amendmentrights. (9 RT 527, 554.) Kozicki was also aware Thomas had subsequently been questioned by a Hayward detective about an incident in that city. (9 RT 544.) Kozicki had no information that appellant wanted to talk about the Young homicide. (9 RT 551.) As argued above, Edwards v. that date. (9 RT 583; 11 RT 718.) 86 Arizona, supra, 451 U.S. 477, and Arizona v. Roberson, supra, 486 U.S. 675, prohibited Kozicki and Kiefer from having any contact with appellant. The circumstances surrounding the interrogation also indicate the waiver of rights was not voluntary. At the time of the interrogation, Thomas had been held incommunicado for about two and a half days. Appellant turned himself in at the Oakland Police Departmentin the early hours of December 24, 1992. (12 RT 778- 780.) Thomas wastaken to Haywardfor questioning and wasbeing held in the police department lockup when Kozicki and Kiefer showed up at 3:30 in the afternoon on December 26, 1992. (9 RT 552; 12 RT 779-780.) Such prolongedisolation is a factor to be considered in the totality of the circumstances analysis. (People v. Neal (2003) 31 Cal.4th 63, 68 [1 Cal.Rptr.3d 650, 72 P.3d 280].) Appellant's youth—he was 19-years-old at the time of the interrogation—also weighs against finding the waiver of rights of knowing, intelligent, and voluntary. (/d. at p. 84.) The detectives also madeuseof crudetrickery. According to Kozicki, after introductions were made he informed Thomasthat he wanted to ask some questions in connection with an investigation he was conducting. (9 RT 528-529.) Kozicki pulled out a standard form to advise appellant of his Miranda rights. At the preliminary hearing, Kozicki admitted that he pulled out a form completed and signed by Henry Glover. (4 CT 1105.) After advising Thomasof his rights, the detective substituted a clean form for the one signed by Glover. (/bid.) At the motion in limine, Kozicki was uncertain whether he read the admonition to appellant from the Glover form or an unused 87 one. (9 RT 567.) Kozicki recalled appellant wassitting next to him when the detective pulled out the Glover admonition. (/bid.) He easily could have read the paper, but Kozicki did not know whether or not Thomas had done so. (9 RT 568-569.) In addition to “accidentally” showing Thomas the Glover admonition form, the detectives “inadvertently” displayed an ATM photo of appellant. According to the interview notes of Kozicki and Kiefer, at the beginning of the interrogation Thomas stated he had “turned himself in because of that picture you gotright there.” (8 CT 2386, 2402.) In his trial testimony, Kozicki explained appellant had inadvertently seen an ATM photo of himself in the detective’s case folder. (57 RT 5916.) In his testimony at the admissibility hearing, Kozicki testified that after he admonished Thomas concerning his Fifth Amendment rights, he informed appellant that he had previously questioned Glover and he had laid the blame on Thomas. (9 RT 562.) Appellant then submitted to questioning about the Young homicide. The totality of the circumstances, then, showed a 19-year-old teenager washeld in isolation for two and a half days, his general invocation of Fifth Amendmentrights was not respected by homicide detectives, who compelled Thomasto talk by displaying an ATM photographof appellant, advising him of Fifth Amendmentrights with a form signed by Glover, and advising appellant that Glover hadlaid the blame on him. This combination of circumstances would coerce even a hardened criminal to talk. Appellant’s waiver of Fifth Amendment rights was compelled rather than voluntary, and the lower court abused its discretion in denying the motion to exclude 88 his post-arrest admissions. (D) The Constitutional Violation Requires Reversal of the Judgment. Because the trial court’s denial of appellant's motion to exclude his post-arrest admissions was constitutional error, reversal of the judgment is required unless the government can demonstrate the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 24.) The attorney general cannot satisfy this burden. Appellant's admissions werecritical to the outcome of the guilt and penalty phasesofthe trial. As seen above, during guilt phase deliberations the jury requested a transcript of the audiotaped portion of the interrogation. (13 CT 3872.) The jury request was granted, and the panel heard exhibit 50 played anew in the midst of determining appellant’s guilt. (60 RT 6276-6277.) The statements contained in the taped portion of the interrogation were essential to the convictions and to the true findings on the felony-murder special circumstances. Failure to make a verbatim record of the interrogation robbed Thomas of mitigating evidence vital to the penalty phase defense case. In short, the judgment must be reversed, for the convictions and sentence are contrary to the right against self-incrimination (Miranda v. Arizona, supra, 384 U.S. 436), right to a fair trial (U.S. Const., 6th Amend.), due process (U.S. Const., 5th & 14th Amends.), and right to a reliable penalty determination (Woodson v. North Carolina, supra, 428 U.S. 280, U.S. Const., 8th Amend.). 89 IV. | THE GOVERNMENT’S USE OF INCONSISTENT THEORIES ON THE IDENTITY OF THE ACTUAL KILLER AMOUNTED TO PROSECUTORIAL MISCONDUCT THAT DENIED APPELLANT DUE PROCESS,A FAIR TRIAL, AND A RELIABLE PENALTY DETERMINATION. Francia Young waskilled by a single gunshot to the back of the head. (52 RT 3503, 5306-5307.) Unable or unwilling to identify the shooter, the district attorney filed an information, which included personal use of a firearm and armed with a firearm enhancements as to both Thomas and Glover. (6 CT 1810-1811.) In their separate trials—without any changein the evidence other than admissions by the defendants (58 RT 6055)—the government adopted inconsistent theories as to which defendant was the actual killer. During the Glover trial, the prosecutor maintained in opening statement and closing argument that Glover was the shooter. (13 CT 3727.) The jury was not persuaded and returned not true findings on the personal use andtrue findings on the armed enhancements. (11 CT 3278-3289.) In appellant’s trial, the district attorney reversed his position, and argued Thomasfired the solitary gunshot that killed Young. Again, the jury was not convinced, and returned not true findings on personal use of a firearm and true findings on the armed with a firearm enhancements. (60 RT 6306-6322.) Despite the not true findings, Thomas wasprejudiced bythe inconsistenttheories, for the allegations and the government's guilt phase argument contributed to the jury’s decision to recommend the death penalty. 90 (A) The Fourteenth Amendment Due Process Motion to Dismiss the Personal Use of a Firearm Enhancements. On March 19, 1997, counsel for Thomas filed a motion to dismiss the personal use of a firearm enhancements. Counsel argued federal due process prohibited the government from pursuing incompatible theories against separately tried defendants for crimes arising from a single incident. In this case, Young was killed by one bullet, which could only have beenfired by one or the other defendant. Hence, by arguing Glover was the shooter in one trial, the government could not make the opposite argumentthat Thomas was the actual killer. (13 CT 3727-3731.) In his written opposition to the motion, the prosecutor acknowledged he had named Glover as the shooter in the codefendant’s trial, but maintained there was nothing to prohibit him from making an inconsistent argument against Thomas.” (13 CT 3752-3757.) On May 30, 1997, counsel for the parties presented argument on the motion. Counsel for appellant highlighted the government's shifting positions on who wasthe actualkiller. In the Glover guilt phase,the district attorney had maintained Glover was the shooter. (25 RT 1714, 1717.) After the first penalty phase endedin a mistrial, the governmenttold the penalty retrial jury in opening statementthat Thomas was the shooter. (25 RT 1719.) In his penalty retrial *2 Appellant filed a reply brief which highlighted the government's concessionthat only oneof the defendants could have fired the fatal shot, and reiterated inconsistent arguments on personaluse of a firearm for a single gunshot violated due process. (13 CT 3766-3768.) 91 closing argument, however, the district attorney argued the two defendants were acting in concert and it did not matter who pulled the trigger. (25 RT 1720.) Given these shifting theories, defense counsel maintained the government should not be allowed to argue that Thomas was the shooter, and the personal use enhancements should be dismissed. (25 RT 1713, 1723, 1734.) Defense counsel maintained the not true findings on the firearm use enhancements were not a vindication of Glover that made Thomasthe shooter. Instead, the finding meant no more than the government had not proven the truth of the enhancement beyond a reasonable doubt. (25 RT 1715.) Absent new evidence, the district attorney should be prohibited from switching to a theory Thomaswasthe shooter. (25 RT 1716.) The court rejected the defense arguments, and found there was no rule of law that prohibited the government from changing theory on the identity of the shooter. The court denied the motion, and stated a jury should decide the issue. (25 RT 1739-1740.) (B) The Motion to Prohibit the Prosecutor From Arguing that Appellant Was the Shooter in Guilt Phase Closing Argument. On September17, 1997,prior to guilt phase closing argument, defense counsel made anoral motionin limine to prevent the district attorney from arguing appellant was the shooter. In the event the court denied the motion, defense counsel asked to be able to provide the jury with the government’s argumentin the guilt phase of Glover’s trial in which he named the codefendant as the shooter. Counsel argued the government's use of inconsistent theories raised 92 questions of fundamentalfairness and federal due process. (58 RT 6051-6053.) | The prosecutor defended the changein theory on the ground the evidence at the twotrials was different. (58 RT 6056.) Thetrial court rejected this assertion. Judge Delucci recalled the evidence was the same other than the admissions made by the defendants. (58 RT 6055.) The court believed the defense had a strong argument, for the prosecutor had picked the person he believed to be the shooterin thefirst trial. (58 RT 6059.) Nevertheless, the . court denied both defense requests. (58 RT 6060-6061.) The court cautioned the district attorney to be careful in how he argued the case to the jury. According to the court, “it could really amount to error that could rise to a violation of due processif it gets up to the federal court on a writ.” (68 RT 6060.) The district attorney told the jury that the only issue—orthe most important issue—was who fired the fatal gunshot. (59 RT 6086, 6095.) He argued the shooter was Thomas. After all, appellant admitted to having possession of the weapon at the scene of the kidnapping. (59 RT 6095-6096.) After quoting from appellant's statement to law enforcement that he retrieved the firearm from its hiding place near the MacArthur BARTstation, the prosecutor argued: “So what is the only direct evidence that anybody ever handled the AK-47 at the Francia Young murder scene? [I] The only direct evidence is out of Keith Thomas’s mouth. [{] Now, other than the self-serving lies that the defendanttells the police trying to lay the blame on his 93 crime partner, Henry Glover, where is there any other direct evidence that anyone other than Keith Thomas himself ever handled the murder weapon? [{] The silence is deafening. There is none. The only evidence in this case that anybody ever handled the murder weapon that killed Francia Young was from Keith Thomas’s mouth, and heindicates that he handled the gun.” (59 RT 6096.) The prosecutor returned to the question of the identify of the actualkiller near the conclusionof his final argument: “So, bottom line, by his own admission of bringing this AK-47 to the abduction scene, by his consciousnessof guilt as to who shot the weapon, by his consciousness of guilt as to who took that last 275-foot death march with Francia, isn’t it reasonable to infer that this slick, Savvy, street-wise ex-felon, one who can deceive an 18- year-veteran detective into letting him go at a crime scene after he committed a robbery with another, one who thinks and tries to clear up his involvementin this murder by just getting it our of the way, isn't it reasonableto infer that he was the actual killer? [J] He is the only one with any direct evidence of ever handling the murder weapon in the Francia Young case. [] Other than his saying Henry Gloverdidit, Henry Glover did it, where is there any evidence, any proofof anyone. else ever having that gun other than him? [{] Flat out there is none.” (59 RT 6106.) 94 In his rebuttal argument, the prosecutor reiterated the only issue in the case wasthe identity of the shooter. (59 RT 6205.) He speculated Thomasand Glover each had an AK-47 assaultrifle. (59 RT 6193.) The district attorney again cited appellant’s statements to law enforcement as a basis for inferring Thomas was the shooter. (59 RT 6189.) As in the Glover trial, the jury found the personal use enhancements to be not true. (60 RT 6306-6322.) In his penalty phase argumenturging the jury to return a death verdict, the district attorney acknowledged the guilt phase verdicts indicated the jury regarded Thomas as an accomplice rather than the shooter. Nonetheless, the prosecutor urged the jury to vote for death. (66 RT 6994.) In addition to the name-calling and vituperation discussed below, the prosecutor explained death was fitting because Thomas was a major participant who acted with reckless indifference during the course of horrific crimes against Young, and had committed a numberof other crimes, including the robbery of Silvey, who was no doubt intended to be “Francia number two.” (66 RT 6970, 6981, 6994.) (C) A Prosecutor Must Seek the Truth Rather Than to Maximize Convictions and Punishment by Means of Inconsistent Theories. It is a familiar maxim that the duty of a prosecutor is to see justice is done, not simply to secure convictions. (Berger v. United States (1934) 295 U.S. 78, 88 [55 S.Ct. 629, 79 L.Ed. 1314].) A prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern 95 impartially is as compelling as its obligation to govern at all; and whoseinterest, therefore, in a criminal prosecution is not that it shail win a case, but that justice shall be done.” (/bid.) Prosecutors are held to a higher standard of behavior than other membersofthe bar. (People v. Hill (1998) 17 Cal.4th 800, 820 [72 Cal.Rptr.2d 656, 952 P.2d 673].) Thus, while counsel representing a private party can do everything ethically permissible to advance the client’s interest, a prosecutor in a criminal case must serve truth and justice. (United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315, 1323.) As the high court has. stated, “society wins not only when the guilty are convicted but whencriminaltrials are fair; our system of justice suffers when any accusedis treated unfairly.” (Brady v. Maryland, supra, 373 U.S. 83, 87.) Because a prosecutor must seektruth, it is a violation of due process for a prosecutor to obtain convictions through the knowing use of perjured testimony. (Mooney v. Holohan (1935) 294 U.S. 103, 112-113 [55 S.Ct. 340, 79 L.Ed. 791].) Similarly, due process is violated when a prosecutorallows false testimony to stand without correction. (Giglio v. United States (1972) 405 U.S. 150, 155 [92 S.Ct. 763, 31 L.Ed.2d 104]; see also Napuev.Illinois (1959) 360 U.S. 264, 269 [79 S.Ct. 1173, 3 L.Ed.2d 1217].) (D) The Government’s Use of Inconsistent Theories Was Not Justified By Any Ambiguity as to the Identity of the Shooter. The government’s use of inconsistent theories in the separate trials of defendants charged with acts arising from a single incident violates the defendant’s right to due process (Smith v. Groose (8th 96 Cir. 2000) 205 F.3d 1045, 1049-1050; Bankheadv. State (Mo, 2006) 182 S.W.3d 253, 258), Sixth Amendmentrightto a fairtrial, and, in a capital case, the Eighth Amendment right to a reliable penalty determination (/n re Sakarias (2005) 35 Cal.4th 140, 160 [25 Cal.Rptr.3d 265, 106 P.3d 931]; Shatz & Whitt, The California Death Penalty: Prosecutors’ Use of Inconsistent Theories Plays Fast and Loose with the Courts and the Defendants (2002) 36 U.S.F. L.Rev. 853, 888-889 [Use of Inconsistent Theories). | Unfortunately, the federal Supreme Court has not had an opportunity to rule on the merits of this issue. (Use of Inconsistent Theories, supra, 36 U.S.F. L.Rev. 853, 877.) However, some membersof the court have taken note of the problem and suggested actions like those undertaken by the prosecutorin this case violate the federal Constitution. In Jacobs v. Scott (1995) 513 U.S. 1067 [115 S.Ct. 711, 130 L.Ed.2d 618], Jacobs kidnapped Etta Urdiales and took her to an abandoned house where his sister, Bobbie Hogan, was waiting. Hogan had a romantic relationship with Etta’s estranged husband. After he was arrested, Jacobs confessed to killing Urdiales and led police to the body. At trial, Jacobs repudiated his confession and explained his admissions were intended to lead to a death sentence, which he preferred to life in prison. Jacobstestified Urdiales went inside the house with Hogan, who shot the victim. Jacobs had believed the purpose of the kidnapping had been to frighten Urdiales into giving up custody of her children, who were at the center of a bitter divorce proceeding between Urdiales and her spouse. The government argued Jacobs 97 wasthekiller and the only person responsible for the victim’s death. Jacobs was convicted and sentenced to death. Some monthslater, Jacobs wascalledto testify as a witness at his sister’s murdertrial. The prosecutor argued he had changed his mind and accepted Jacob’s second version of events and trial testimony as true. Even though the state had rejected the theory used to convict Jacobs, it nevertheless insisted on carrying out the death sentence obtained on the basis of the discarded theory. The court denied an application for stay of execution and petition for writ of certiorari. Justice Stevens wrote in dissentthat for the state to take inconsistent positions in two casesarising from the same facts raised a serious question of prosecutorial misconduct. (Jacobs v. Scott, supra, 513 U.S. 1067, 1069 (dis. opn. of Stevens, J.).) He went on to state, “Il have long believed that serious questions are raised ‘when the sovereign itself takes inconsistent positions against two ofits citizens.’ [Citations.] The ‘heightened need forreliability’ in capital cases [citation] only underscores the gravity of those questions in the circumstancesofthis case.” (/d. at p. 1070.) | In Bradshaw v. Stumpf (2005) 545 U.S. 175 [125 S.Ct. 2398, 162 L.Ed.2d 143], the defendant pleaded guilty to murder and admitted a capital special which made him eligible for the death penalty. In a contested penalty hearing before a three-judge panel, the defendant denied being the shooter and maintained his participation was at the urging of his crime partner, Wesley, who fired the fatal gunshots. The prosecutor maintained Stumpf was the shooter, and the court sentenced Stumpf to death. When Wesley 98 stood trial, the government had new evidence—the testimony of a snitch—that he wasthe shooter rather than Stumpf. Wesleytestified Stumpf was the shooter. A jury sentenced Wesleyto life with the possibility of parole in twenty years. On federal habeas corpus, Stumpf argued the government’s inconsistent theories rendered his guilty plea involuntary and the inconsistent theories violated federal due process. The high court rejected the challenge to the validity of the guilty plea. The court declined to reach merits of the due process issue, which had not been passed onby the court of appeal. The court recognized it was at least arguable that the government's use of inconsistent theories had a direct impact on the death sentence and could amountto a due process violation. (Bradshaw v. Stumpf, supra, 545 U.S. 175, 187.) In a concurring opinion, Justice Souter pointed out Stumpf’s argument had been anticipated by Justice Stevens in his dissent from the denial of certiorari in Jacobs v. Scott, supra, 513 U.S. 1067. (Bradshaw v. Stumpf, supra, 545 U.S. 175, 189 (conc. opn. of Souter, J.).) In his opinion, the Stevens dissent echoed the court’s opinion in Berger v. United States, supra, 295 U.S. 78. (Bradshawv. Stumpf, supra, 545 U.S. 175, 189 (conc. opn. of Souter, J.).) As seen above, Berger concerned the due process obligation of prosecuting attorneys to serve the truth and attempt to securejustice rather than merely obtain convictions. (Berger v. United States, supra, 295 U.S. 78, 88.) It can be argued that the leading case on the government’s use of inconsistent theories is this Court’s decision in /n re Sakarias, 99 supra, 35 Cal.4th 140. In that case, Peter Sakarias and Tauno Waidla were chargedwith a murder committed by use of a hatchet and a knife. In Waidla’s trial, the prosecutor attributed the fatal — hatchet blows to Waidla. When Sakarias stoodtrial, the prosecutor reversed course and argued Sakarias was the actual killer rather than Waidla. This Court granted a petition for writ of habeas corpus filed on behalf of Sakarias and set aside his death sentence. The court explained: “By intentionally and in bad faith seeking a conviction or death sentence for two defendants on the basis of culpable acts for which only one could be responsible, the People violate ‘the due process requirement that the government prosecute fairly in a search for truth....’ [Citation.] In such circumstances, the People's conduct gives rise to a due process claim (under both the United States and California Constitutions) similar to a claim of factual innocence. Just as it would be impermissible for the state to punish a person factually innocent of the charged crime, so too does it violate due process to base criminal punishment on unjustified attribution of the same criminal or culpability-increasing acts to two different persons whenonly one could have committed them. In that situation, we know that someoneis factually innocent of the culpable acts attributed to both.” (In re Sakaris, supra, 35 Cal.4th 140, 160, emphasisin original.) In its analysis of the issues in Sakaris, this Court cited Thompson v. Calderon (9th Cir. 1997) 130 F.3d 1045, revd. on other grounds sub nom. Calderon v. Thompson (1998) 523 U.S. 538 [118 100 S.Ct. 1489, 140 L.Ed.2d 728].% In Thompson, the government advanced inconsistent theories in the prosecution of Thompson and Leitch in separate trials for rape and murder. In Thompson’strial, the district attorney argued the defendant raped the victim, Leitch’s formergirlfriend, and killed her to avoid leaving any witnessesto his crime. Twojailhouse informants supported this theory with alleged confessions by Thompson. In Leitch’s trial, the government maintained Leitch wanted to kill the victim because she was an impediment to a reunion with his ex-wife and enlisted Thompson to assist him. Four different informants were used to buttress this theory, while the informants from Thompson’strial were not called. The Ninth Circuit was not amused by this chicanery. According to the court, “it is well established that when no new significant evidence comesto light a prosecutor cannot, in orderto convict two defendants at separatetrials, offer inconsistent theories and facts regarding the same crime.” (Thompson v. Calderon, supra, 120 F.3d 1045, 1058.) For the district attorney to resort to such tactics violated due process. (/d. at p. 1059.) When the evidence as to the identity of the shooter can be viewed as ambiguous, a prosecutor has three options:first, employ *3 Judge Reinhart, a memberof the plurality whose decision was overturned by the high court, described the “other grounds” as follows: “The ostensible reasonthis time was that the judges on our court had missed a deadline, the state’s ‘final’ judgment had become incrementally more final, and, as a result, the en banc hearing we held had been conducted too late.” (Reinhart, The Anatomy of an Execution: Failure vs. “Process” (1999) 74 N.Y.U. L.Rev. 313, 321- 322.) 101 his or her best judgmentto select the defendant who was mostlikely to be the shooter and proceed accordingly; second, acknowledge the uncertainty and delete from the information any enhancement applicable only to the actualkiller; third, exploit the uncertainty and attempt to obtain the maximum punishmentin separatetrials of the codefendants. (Poulin, Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get Its Story Straight (2001) 89 Calif. L.Rev. 1423, 1424-1425 [hereafter Prosecutorial Inconsistency].) Here, in an apparent effort to obtain a death sentence against both defendants, the prosecutor elected to take the third option. In the present matter, only one person could have fired the gunshot that killed Young. In the Glovertrial, the government elected to attribute the fatal act to the codefendant. Whenthe jury failed to endorse this theory, the government reversed course and named Thomas as the actual killer. However, a jury does not determine the truth of an allegation, only whether then government has satisfied the burden of proof. (Use of Inconsistent Theories, supra, 36 U.S.F. L.Rev. 853, 865.) That the Gloverjury returned not true findings on the personal use enhancements did not mean Glover was not the shooter, only that the district attorney failed to prove that fact beyond a reasonable doubt. Moreover, the government will inevitably know more of the relevant facts and circumstances than a jury can learn attrial. (/bid.) Hence, only the discovery of new evidence can justify a change of theories, not the jury verdicts in the first trial. (/d. at p. 866.) 102 (E) Appellant Was Prejudiced as a Result of the False Claim He Was the Shooter, and the Penalty Verdict Must Be Reversed. | In this context, prejudice analysis is based upon the answers to two questions: first, whether the government's attribution of the act to the defendant is probably true or probably false; second, whether a false attribution could reasonably have affected the penalty verdict. (/n re Sakarias, supra, 35 Cal.4th 140, 164.) “Only as to the defendant convicted or sentenced by use of the probably false theory can it be said the prosecution has presented a materially false picture of the defendant's culpability.” (/bid.) The second step of the prejudice test is identical to the Chapman “beyond a reasonable doubt” standard. (/d. at p. 165.) (1) Step 1: Glover Was the Shooter, and the Government Claim Thomas Wasthe Actual Killer Was False. From the available evidence,it is more likely than not that Glover was the shooter. There were no disinterested eyewitnesses to the crime. Thomas denied responsibility for the murder, and alleged Glover wasthe killer. (57 RT 5938.) Of course, standing alone,a self-serving attempt to shift responsibility to another suspect is not reliable evidence. (See e.g., Lilly v. Virginia (1999) 527 U.S. 116, 137-139 [119 S.Ct. 1887, 144 L.Ed.2d 117] [statements purportedly against penal interest which shift or share blame are not reliable and therefore are not admissible pursuant to residual trustworthiness exception to hearsay rule].) The only remaining statement by appellant meriting mention was highlighted by the prosecutor in his guilt phase closing 103 argument. As seen above, the prosecutor reminded the jury that Thomas admitted he had handled the assault rifle at the time of the Young kidnapping. (59 RT 6106.) In the district attorney’s view,this admission supported an inference Thomas wasthe actualkiller. The argumentis not persuasive. Appellant told police that Glover wanted to rob a Safeway store but needed a car. Glover and Thomas spotted Young’s Mustang at the MacArthur BART station and decided to wait for the ownerin orderto steal the vehicle. (57 RT 5920-5921.) Glovertold appellant to get the firearm from its hiding place. When Thomas returned with the weapon, Glover was closing the Mustang’s trunk with someoneinside. (57 RT 5921.) This snippet of appellant’s interrogation has no direct bearing on the identity of the shooter. The statement is also at odds with the testimony of William Dials. The eyewitness described Thomas as resembling the perpetrator who stood with his hands on the Mustang’s roof while a second man talked to Younginside the car and then walked her to the trunk. (52 RT 5369-5370.) In other words, the evidence suggests Thomas was present at the kidnapping scene and did not handle the assaultrifle. The fact appellant surrendered himself in at the Oakland police station suggests he was not the actual killer. Because appellant knew Glover wasthekiller and he wasnot familiar with the felony-murder rule, Thomas no doubt believed he hadlittle to fear in turning himself in to law enforcement. If appellant’s statements are set aside, the remaining evidence strongly suggests Glover was the shooter. In the guilt phase, the 104 government presented evidence concerning twoincidents involving Glover and Thomas: the Young murder, and the Flennaugh robbery and shootout with the police. In the penalty phase, the district attorney introduced the Silvey-White incident. All three incidents suggest Glover was more likely than not the shooter who killed Young. On the street in Oakland, inside Flennaugh’s apartment in Hayward, and in Silvey’s driveway in Berkeley, Glover was the perpetrator who had the most contact with the victim, and exhibited the most violence. In Oakland, Glover talked to Young inside the Mustang, walked to the back of the car with her, and closed the trunk with the victim inside. (52 RT 5369-5370, 5372.) While Glover intimidated Young and forced herinto the trunk, Thomas stood by and acted as a lookout. (52 RT 5369-5371.) In Hayward, Glover was the first offender to enter the Flennaugh apartment uninvited (55 RT 5676), which suggests it was Glover whokicked in the apartment door (55 RT 5644). Glover was armed with an assault rifle and pointed the weapon at Flennaugh. (55 RT 9647-5648, 9651-5652.) Glover repeatedly demanded money. (55 RT 5649, 5653, 5679.) Glover punched Flennaughin the face even though she waseight or nine months pregnant. (55 RT 5643, 5680.) The blow knocked Flennaugh to the floor and broke her nose. (55 RT 5655, 5687.) While she was on the floor bleeding, Glover caressed her leg, which made Flennaugh suspect she might be raped. (55 RT 5657-5659.) In contrast to Glover, appellant never had a weapon. (55 RT 5678.) Flennaugh testified that after Glover broke her nose, Thomasdid not look like he wanted 105 to be there. (55 RT 5687.) When she offered gold jewelry to him, appellant told her to keep it. (55 RT 5687-5688.) In Berkeley, Glover was the offender whotold Silvey to be quiet, tried to force her into the trunk of her car, and engaged the victim in a fight. (61 RT 6443, 6449-6450, 6486.) As with Flennaugh, Glover punchedSilvey in the face and broke her nose. (61 RT 6444, 6448, 6453.) Thomas, on the other hand, went to Silvey’s car and sat downin the driver’s seat. (61 RT 6443, 6470.) Thomasnever spoketo Silvey or had any physical contact with her. (61 RT 6517.) Critically, it was Glover who fired the AK-47 at police officers in his flight from the Flennaugh apartment. (55 RT 5647-5648.) In his separate trial, Glover was convicted on two counts of assault on a peaceofficer with an assault weapon (§ 245, subd. (d)(3)), and the jury returned true findings on enhancements for personal use of an assault weapon (§ 12022.5). (11 CT 3278-3279.) Rather than join Gloverin flight, Thomas remained inside the apartment and posed as a victim instead of a perpetrator. In summary, the evidence showed Glover waswilling to harm vulnerable women. He punched Flennaugh and broke her nose even though she wasin the last stages of pregnancy. Glover punched Silvey, despite the fact she was a mature woman and perhaps a seniorcitizen.“ It is therefore reasonable to believe he 24 Although Silvey’s age is not stated in the record, she testified to thirty years experience as a schoolteacher. (61 RT 6458.) Photographs of Silvey suggested she wasat least a woman of mature years. (See exhibits 54 and 55.) 106 would kill Young. In his anxiety to flee the Hayward crime scene, Glover waswilling to use a high-powered weaponto clear an escape route and discourage pursuit. The fusillade of gunshots could have killed peace officers or innocent apartment dwellers. Moreover, Glover's use of an AK-47 in his escape suggests consciousnessof guilt. Since the incident took place nearly two weeks after the murder of Young, it is reasonable to infer Glover was willing to engagein firefight to get away because he wasthe actualkiller. Givenhis reckless disregard for innocentlife and willingness to harm the helpless, it is more likely than not that Glover was the shooter. Thomas wasfalsely accused of being the shooter, and is entitled to penaltyrelief. (2) Step 2: The Penalty Verdict Was Affected by the Government's False Claim Thomas Wasthe Shooter. At the second step of the prejudice test, the appellant is entitled to relief “if he can show a reasonable likelihood the prosecutor’s use of a tainted factual theory affected the penalty verdict.” (/n re Sakarias, supra 35 Cal.4th 140, 165.) In Sakarias, the court granted the petitioner penalty relief despite the presence of other significant aggravation. This included evidence the petitioner played a direct role in the fatal attack by stabbing the victim four times in the chest. Two of the woundsinflicted by Sakarias were potentially fatal. Furthermore, the petitioner had used the hatchet to Strike the victim twice in the head sometime after her death. (/d. at pp. 165-166.) The court pointed out the offender was young, lacked a prior record of violence, had experienced persecution while a memberof the Soviet armed forces, and had been diagnosed with a 107 mental disorder. (/d. at p. 166.) Here, Thomas wasnot a participant in the fatal attack. Unlike the horrific assault in Sakarias, the victim in this case waskilled by a single gunshot. Thomasdid admit to sexual intercourse with Young. (57 RT 5927.) However reprehensible, this crime cannot compare to the petitioner's important role in the murderous assault in Sakarias. Thomas had a negligible history of violence at the time of the offense. In the penalty phase, in addition to the homicide and Flennaugh robbery, the government could add only the Silvey robbery, in which Thomasdid not touch the victim, two instances of domestic violence, and a battery on McNulty. Like the successful petitioner in Sakarias, appellant was a young man—a mere 19- years-old—at the time of the homicide. As seen in the defense penalty phase case-in-mitigation, appellant's history was characterized by abuse and deprivation. The record, then, contains significant mitigation and justification for a sentence of less than death. The government’s use of a false theory during the guilt phase tainted the trial and contributed to the death verdict. Although the jury returned not true findings on the personal use enhancements, the result means nothing more than the district attorney failed to prove the allegations beyond a reasonable doubt—notthat the jury disbelieved the prosecution theory. As in Sakarias, the false theory that Thomas wasthe actual killer cannot be seen as harmless. The court should reverse the death sentence. 108 V. THE ADMISSION OF INFLAMMATORY PHOTOGRAPHS VIOLATED APPELLANT’S FIFTH AND FOURTEENTH AMENDMENTRIGHT TO DUE PROCESS. (A) Procedural History On August 24, 1995, the public defender filed trial motion number 15 on appellant’s behalf to limit photographic evidence. The motion was grounded uponthe right to a fair trial (U.S. Const, 6th Amend.), to due process (U.S. Const., 5th & 14th Amends.), and heightened evidentiary reliability (U.S. Const, 8th Amend.). It was further argued that photographs of Young while alive were not relevant to any contested issue. As for crime scene photos of the victim, it was argued the pictures were more prejudicial than probative (Evid. Code, § 352), not relevant to any disputed, material issue, and cumulative of other evidence. (8 CT 2412-2418.) On October 5, 1995, the court deferred consideration of the motion until opening statements. (1 RT 174.) Consistent with this ruling, on September 4, 1997, after the completion of jury selection and prior to guilt phase opening statements, the court and counsel revisited the motion in connection with the items the prosecutor planned to employ during opening statement. (52 RT 5244.) Defense counsel focused his argument on three photographs that had been marked for the Glovertrials and were renumberedfor appellant’s case. Exhibit 13-C, formerly exhibit 7-C, showed the victim at the crime scene with hands tied behind the back, ankles together and secured to a branch. Thetorso is clothed in a jacket and the area 109 from the waist down is exposed. An “X” is drawn on the photograph in red ink to depict where a shell casing was found a few feet from the head. (52 RT 5250.) Defense counsel objected to the image as more prejudicial than probative and cumulative. (/bid.) Exhibit 13-E, previously marked as exhibit 7-G, depicted the right side of the decedent’s head. The photograph showsa bullet exit woundjust in front of the ear. Blood, brain tissue, dirt, and dried grass are shown, along with miscellaneous scratches and impressions on the side of the face. Defense counsel objected the photo was moreprejudicial than probative and cumulative of other photographsof the same areaafter the body had been cleaned. (52 RT 5250-5251.) Exhibit 13-F, formerly marked as exhibit 7-H, showed a bullet lying in the grass amid blood and brain tissue. Counsel objected to the photograph as unduly inflammatory. (52 RT 5252.) The court concluded the photographs wereall probative; the probative value outweighed any prejudice, and overruled the objections. (52 RT 5252-5253.) As a result of the court’s decision, the district attorney used exhibit 13-C, the photograph of Young facedown on the hillside, during his opening statement. (52 RT 5279.) The following day, EBRPDP evidence technician Dale Davidson testified to his work photographing and collecting evidence at the Point Richmond crime scene. Along with other photographs, the prosecutor showed Davidson exhibits 13-C, 13-E, and 13-F, and had him describe the contents of the photographs. (53 RT 5428, 5439.) The exhibits were subsequently admitted into evidence. (53 RT 5440.) 110 (B) Appellant’s Constitutional Claims of Error Have Not Been Waived. Although defense counsel limited the objections stated at the motion in limine to the Evidence Code, appellant’s constitutional claims of error are nonetheless germane. During proceedings on the motionsfiled by the public defender, the court granted without objection by the governmenttrial motion number seven,to federalize all objections stated during trial. (1 RT 161-162.) At the urging of Glover's counsel, the court expanded theruling so thatall objections by counsel encompassedthe entire federal Constitution. (1 RT 162- 163.) The prosecutor voiced no objection to this decision. The court also granted a motion to makeall in limine rulings binding. (1 RT 157-159.) Thus, at the time the public defender was relieved, the court had ruled defense objections would include federal constitutional grounds without the need to articulate articles and amendments to the Constitution in order to preserve these grounds for post-conviction review. After successor counsel was appointed, Mr. Wagner adopted as his own all motions made by the public defender. (9 RT 513- 514.) The court proceeded on the assumption counsel endorsed his predecessor's motions (15 RT 1170), and both the court and defense counselaffirmed this understanding prior to jury selection (27 RT 1802). The district attorney voiced no objection to this procedure. As a result, trial counsel’s Evidence Code objections must be viewed as also incorporating all federal constitutional grounds. 111 (C) Admission of the Inflammatory Photographs Violated Appellant’s Fifth and Fourteenth Amendment Right to Due Process. The issue of gruesome photographs is a common point of contention in homicide cases. The simple fact is that “most,if not all, photographs of a victim are ‘gruesome’ depicting as they do in criminal cases, violent death.” (People v. Willis (1980) 104 Cal.App.3d 433, 451 [163 Cal.Rptr. 718].) Photos of a bloody corpse “have a sharp emotionaleffect, exciting a mixture of horror, pity and revulsion.” (People v. Smith (1973) 33 Cal.App.3d 51, 69 [108 Cal.Rptr. 698], disapproved on other grounds, People v. Wetmore (1978) 22 Cal.3d 318, 324, fn. 5 [149 Cal.Rptr. 265, 583 P.2d 1308].) “Not infrequently, evidentiary resort to such vivid horrors is rationalized by the statement that they tend to prove malice [citations], or that they are relevant to aggravation of the crime and the penalty [citation]. Such pictures are always offered as parts of an evidentiary mosaic; thus it is more appropriate to appraise their probative value as cumulative rather than isolated evidence.” (People v. Smith, supra, 33 Cal.App.3d 51, 69.) The admissibility of gruesome photographs,then, should in the usual case be analyzed pursuant to Evidence Code section 352. (People v. Willis, supra, 104 Cal.App.4th 433, 451.) This Court has summarized the rules governing the admissibility of photographs as follows: “all relevant evidence is admissible, unless excluded under the federal or state Constitution or by statute, and trial courts have broad discretion in determining 112 the relevance of evidence but lack discretion to admit irrelevant evidence. [Citation.] Photographs of a murdervictim ‘are always relevant to prove how the charged crime occurred, and the prosecution is “not obliged to prove these details solely from the testimony of live witnesses,” even in the absence of a defense challenge to particular aspects of the prosecution's case.” (People v. Vieira (2005) 35 Cal.4th 264, 293 [25 Cal.Rptr.3d 337, 106 P.3d 990].) Despite the freedom enjoyed by trial courts, abuse of the authority to permit introduction of photographs can result in prejudicial error requiring reversal of convictions. (See e.g., People v. Gibson (1976) 56 Cal.App.3d 119, 134-136 [128 Cal.Rptr. 302] [abuse ofdiscretion for trial court to permit introduction of cumulative and gruesome photographsof murdervictim]; People v. Love (1960) 93 Cal.2d 843, 857-858 [3 Cal.Rptr. 665, 350 P.2d 705] [prejudicial error in penalty phase to admit photographofvictim’s face to show she died in excruciating pain and playing of audiotape of her dying groans in emergency room which servedonly to inflame passions of jury]; People v. Burns (1952) 109 Cal.App.2d 524, 541-542 [241 P.2d 308] [admission of post-autopsy photographs to inflame passionsof jury against defendant prejudicial error].) Whenthedistrict attorney relies upon a felony-murder theory, photographsthat, for example, depict the position of the decedent’s body or the mannerin which woundswereinflicted are not relevant. (People v. Tumer(1984) 37 Cal.3d 302, 321 [208 Cal.Rptr. 196, 690 P.2d 669] disapproved on other grounds, People v. Anderson (1987) 43 Cal.3d 1104, 1115 [240 Cal.Rptr. 585, 742 P.2d 1306].) 113 In People v. Marsh (1985) 175 Cal.App.3d 987, 998 [221 Cal.Rptr. 311], the court found the admission of seven gory autopsy photographs did not aid the jury in any way and wasinstead a “blatant appeal to the jury's emotions.’ [Citation.]" Likewise, in People v. Anderson (1987) 43 Cal.3d 1104, 1137 [240 Cal.Rptr. 585, 742 P.2d 1306], this Court found that photographs of the victim “seem relevant only on whatin this case is a non-issue[i.e. whether a human being was killed] and therefore should not have been received into evidence.” . The admission into evidence of gruesome photographs violates the federal constitution as well as provisions of the Evidence Code. For example, in Spears v. Mullin (10th Cir. 2003) 343 F.3d 1215, the prosecutor introduced penalty phase photographsof the decedent that showed numerous post-mortem stab wounds, gash wounds, exposedintestines, and a swollen face. The Tenth Circuit found the photographs were either not relevant or minimally relevant, while the prejudicial effect of the pictures was so substantial as to deprive the defendants of a fundamentally fair penalty phase. (/d. at p. 1229.) Here, the contested photographs served only to inflame the jury’s passions against Thomas. The images were not necessary to an understanding of the crime scene, which wasfully described by EBRPDPwitnesses Dale Davidson and Sarah Christopherson. The photographs were not required for explication of Young’s injuries and causeof death, which in any event were not in dispute. Rather than illuminate an element of the government's case, the three photographs were presented to enragethe jury against Thomas and 114 Glover. It was an abuse of discretion for the court to allow the challenged photographs to be presented in the government's case against Thomas. | (D) The Constitutional Error Requires Reversal of the Judgment Because the error is of federal constitutional dimension, reversal of the judgment is required unless the government can demonstrate admission of the challenged exhibits was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 24.) In the alternative, if the error is construed as a matter of state law, reversal is required if there is a reasonable probability that Thomas would have obtained a more favorable result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 834- 836 [299 P.2d 243].) Admission of the incendiary images demands reversal whatever standard for assessing prejudice is employed. By almost any standard, the present matter is a close case. In a close case, “any substantial error tending to discredit the defense or to corroborate the prosecution must be considered as prejudicial.” (People v. Von Villas (1992) 11 Cal.App.4th 175, 249 [15 Cal.Rptr.2d 112].) From thetrial record, it is apparent the jury regarded both guilt and penalty phase decisions asinvolving close and difficult issues. In the guilt phase, the case was submitted for decision on September 23, 1997. (13 CT 3869.) The jury deliberated all day on September 24 and 25, 1997. (13 CT 3875-3876, 3881.) Verdicts were returnedlate in the day on September 29, 1997, the fourth day of deliberations. (13 CT 3889-3890.) Over the four days, the jury 115 spent more than 16 hours deliberating, listening to testimony read anew, and hearing the audiotape of appellant's admissions to Kozicki. By any standard, this is a lengthy period of deliberations and an indicator of a close case. (People v. Woodard (1979) 23 Cal.3d 329, 341 [152 Cal.Rptr. 536, 590 P.2d 391] [six hours deemeda long time andindicative of a close case]; People v. Collins (1968) 68 Cal.2d 319, 332 [66 Cal.Rptr. 497, 438 P.2d 33] [eight hours].) A jury request to reread testimonyis indicative of a close case. (People v. Hernandez (1988) 47 Cal.3d 315, 352-353 [253 Cal.Rptr. 199, 763 P.2d 1289]; People v. Williams (1971) 22 Cal.App.3d 34, 38-40 [99 Cal.Rptr. 103].) Here, the jury asked to hear the testimony of two witnesses concerning DNA issues, Edward Blake and Brian Wraxall. (13 CT 3872.) The jury also wanted to hear appellant’s taped statements. (/bid.) These requests are further evidence the present matter is indeed a close case. Jury questions are anotherindicia of a close case. (Peoplev. Markus (1978) 82 Cal.App.3d 477, 480-482 [147 Cal.Rptr. 151].) Here, in the guilt phase the jury questionedthe court about kidnap _ for purposesof rape or sodomy. (13 CT 3880.) Finally, when the jury returns a partial verdict, the decisions regard the matter as a close case. (People v. Washington (1958) 163 Cal.App.2d 833, 846 [330 P.2d 67].) In this case, the jury returned not true findings on the personal use of a firearm (§ 12022.5) and arming (§ 12022.3, subd. (a)) conduct enhancements. Again this suggests a close case. As for the penalty phase, the jury again required substantial 116 deliberations in order to arrive at a decision. Over a periodof five days, beginning on October 16 and ending on October 22, 1997, the jury deliberated for more than 15 hours. (14 CT 4049-4052, 4065, 4143.) Again, this indicates a close penalty case. Because both the guilt and penalty decisions were close, contested issues, the error in allowing into evidence the inflammatory photographs cannot be viewed as harmless no matter which standard is used to assess prejudice. The judgment should be reversed. 117 VI. THE TRIAL COURT COMMITTED ERRORIN DENYING A MISTRIAL AS A RESULT OF TESTIMONYBY DETECTIVE DALEY THAT APPELLANT ASKED FOR A LAWYER,FOR THE DOYLE ERROR DEPRIVED APPELLANT OF DUE PROCESS. At the outset of court proceedings on September15, 1997, the prosecutor notified the court that his witnesses for the day included detective Frank Daley, who had talked to appellant at the Flennaugh apartment and, after Thomas turned himself in to the Oakland police, had questioned appellant. The district attorney stated he would notelicit evidence Thomas had invokedhis Fifth Amendment rights. (56 RT 5729.) The court agreed, and told the prosecutorthat he could elicit testimony the questioning had ceased, but not the reason whythe session ended. (56 RT 573.) On direct examination, the prosecutor questioned Daley about the Miranda admonition and waiverof rights. (56 RT 5815-5817.) The following exchangethen took place: “Q. Okay. And when you talked to him on this occasion, did he deny anyinvolvementin the Hayward Sebrena Flennaugh robbery? “A. Yes. “Q. And was all questioning stopped at that point in time? “A. After a few minutes, he said he wanted a lawyer, and | stopped.” (56 RT 5817.) The prosecutor asked no further questions and defense counsel conducted cross-examination. At the next break, defense 118 counsel made a motion for a mistrial. (66 RT 5832.) The prosecutor assured the court that he had instructed the witness not to mention the invocation of rights. (56 RT 5833.) Concerning his final question to the witness, the district attorney had anticipated a yes or no answer. He was “caught completely by surprise” when Daley mentioned the request for counsel. (/bid.) The court denied a mistrial on the ground the error had not deprived Thomasofhisright to a fair trial. (66 RT 5834.) In Doyle v. Ohio (1976) 426 U.S. 610, 619 [96 S.Ct. 2240, 49 L.Ed.2d 91] the court held the use of a defendant’s post-arrest silence after receiving a Miranda admonition for purposes of impeachment violated the Fourteenth Amendment right to due process. The court has explained that the Miranda warningscontain an implicit promise that silence will not be penalized. (Wainwrightv. Greenfield (1986) 474 U.S. 284, 290 [106 S.Ct. 634, 88 L.Ed.2d 623].) Doyle, then, rests upon the premise “it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeachhistrial testimony.” (/d. at p. 292.) This Court has held the logic of Doyle extends to post-arrest invocation of the right to counsel. (People v. Crandell (1988) 46 Cal.3d 833, 878 [251 Cal.Rptr. 227, 760 P.2d 423].) Consistent with Doyle, it is improper to elicit testimony the accused invoked the right to counsel. Daley’s testimony that Thomas had askedfor an attorney was improper and a violation of the Fifth and Fourteenth amendments right to due process. 119 The lower court committed error in denying the mistrial motion. The denial of a mistrial motion is reviewed for abuse of discretion. (People v. McLain (1988) 46 Cal.3d 97, 111 [249 Cal.Rptr. 630, 757 P.2d 569].) A mistrial motion should be granted whenthe prejudice to the defendant cannot be cured by admonition or instruction. (People v. Wharton (1991) 53 Cal.3d 522, 565 [280 Cal.Rptr. 631, 809 P.2d 290].) Although a mistrial motion is often caused by prosecutorial or judicial misconduct, a witness’s answer can also provoke amistrial. (/bid.) Here, an admonition would have been a pointless attempt to unring the bell. This Court has acknowledged that efforts to cure prejudice can bea futile effort to "unring the bell." (People v. Morris (1991) 53 Cal.3d 152, 188 [279 Cal.Rptr. 720, 807 P.2d 949].) In People v. Hill, supra, 17 Cal.4th 800, 845, the court acknowledged, “It has been truly said: You can’t unring a bell. [Citation.]” Once Daley testified Thomas had asked for an attorney, the jury knew he had been initially willing to talk to law enforcement, then reconsideredhis decision and retreated to the safety provided by the Fifth Amendment. The change of heart smacksof guilty knowledge and would suggestto the jury that Thomashad a great dealto hide. It was. an abuseof discretion for the lower court to deny the mistrial motion. As seen above, the jury plainly regarded both the guilt and penalty decisions as close issues. Becausethisis a close case, any significant error that tends to assist the prosecution or discredit the defense must be seen asprejudicial. (People v. Von Villas, supra, 11 Cal.App.4th 175, 249.) Testimony appellant invoked his Fifth 120 Amendmentrights compromised the defense case and bolstered the government's position. The error in denying the mistrial motion, then, was prejudicial. As a result of the improper testimony and the lower court’s mistaken ruling, appellant was deprived of due process (U.S. Const, 5th & 14th Amends.), a fair trial (U.S. Const., 6th Amend.), and a reliable penalty determination (U.S. Const., 8th Amend.). The judgment should be reversed. 121 Vil. THE PROSECUTOR COMMITTED MISCONDUCTIN HIS CLOSING AND REBUTTAL ARGUMENTS. (A) Introduction James Anderson, the prosecutor in this case, was a longtime assistant district attorney (Marks v. Superior Court (2002) 27 Cal.4th 176, 180 [115 Cal.Rptr.2d 674, 38 P.3d 512]) and supervised the capital casetrial team (/n re Freeman (2006) 38 Cal.4th 630, 646 [42 Cal.Rptr.3d 850, 133 P.3d 1013]) from 1991 to his retirement in October 2004 (Chapman, A Passionate Foe of Killers Cedes Stage After 34 Years, Oakland Tribune (Oct. 7, 2004) More Local News [Passionate Foe]). Anderson prided himself on taking his cases personally. (/bid.) During a 34-year career, Anderson sent ten defendants to death row. (/bid.) Anderson memorialized these victories by hanging framed booking photosof the ten offenders ona wall of his office that he christened “The Wall of Shame.” (Ibid.) Of all his cases, Anderson viewed the present matter as the high point of his career. (/bid.) Unfortunately, Anderson’s zeal led him to cross the line separating vigorous advocacy from over-the-top misconduct. This Court has held that "the term prosecutorial 'misconduct' is somewhatof a misnomerto the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error." (People v. Hill, supra, 17 Cal.4th 800, 823, fn. 1.) "Because we consider the effect of the prosecutor's action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct." (People v. Crew (2003) 31 Cal.4th 822, 122 839 [3 Cal.Rptr.3d 733, 74 P.3d 820].) (B) Shifting the Burden of Proof In closing argument, the prosecutor briefly listed the nine counts in the amendedinformation. He then stated the case was unusual because the government’s evidence was “uncontroverted” as “there was no contradictory evidence given to us by the defense to challengeit.” (59 RT 6074.) He added that Thomas had admitted his guilt of kidnapping, rape, robbery, residential robbery, and being a convicted felon in possession ofa firearm. (Ibid.) Because of the rules of aiding and abetting, appellant’s admissions to Kozicki also meant he was guilty of murder and assault with a firearm on the Hayward officers. (59 RT 6078-6079.) Hence, by his own admissions and “the unchallenged, uncontroverted testimony,” Thomaswasguilty on all nine counts. (59 RT 6086.) Therefore, the only “real decision” the jury would need to make was to determine who wasthe shooter for purposes of the personal use of a firearm enhancements. (/bid.) In his argument, defense counsel responded to the government's framing of the issues. Counsel agreed there was “plenty of evidence’of a kidnap, a rape, and a robbery in addition to appellant's statements. (59 RT 6108.) Counsel stated the jury would need to makeits own decision on application of the felony- murder rule. (/bid.) In his view, the “main battlefields” were the sodomy charge, the identity of the shooter, and appellant’s intent. (59 RT 6109.) Near the conclusion of his argument, defense counsel asked the jury to return a not guilty verdict on the sodomy charge, as well 123 as not true findings on the use of a firearm enhancements and the felony-murder special circumstances. (59 RT 6180-6181.) He finished by stating, “So—and what| only ask you to dois basically not convict Mr. Thomasof anything where there is no guilt beyond a reasonable doubt and to an abiding conviction. Ultimately, when you boil it down, that’s all | can ask. [{]] Thank you.” (59 RT 6182.) On rebuttal, the prosecutor pounced upon the defense argument and characterized it as conceding guilt on all counts other than the sodomy. (59 RT 6184-6185.) Thedistrict attorney exulted, “What more proof do | need other than the evidence and their confession [sic] of it?” (59 RT 6184.) Defense counsel twice objected the argument misstated the record, but his objections were overruled. (59 RT 6184-6185.) Counsel for the government returned to this theme moments before concluding rebuttal argument: “Now, remember what | said. They've conceded eight of the nine counts. So to make these deliberations go more quickly,fill out the guilty forms of the ones I’ve told you they conceded. And then discuss the sodomy, then discuss the special circumstances, and then discuss the useofthe firearm.” (59 RT 6205.) The government’s argumentconstituted misconduct, for it shifted the burden of proof to the defense. Furthermore, the prosecutor mischaracterized defense counsel’s argument as substantive evidence that rendered deliberations superfluous. In United States v. Perlaza (9th Cir. 2006) 439 F.3d 1149, 1169, a prosecutor stated during rebuttal argument, “In a short period of time, the case will be handed to you. You're going to go backinto that deliberation room and that presumption of innocence. 124 . . That presumption, when you go back in the room right behind you, is going to vanish whenyoustart deliberating. And that’s when the presumption of guilt is going to take over you. . .” The argument wasinterrupted by objections which were overruled. The Ninth Circuit found the comments amounted to prejudicial misconduct. The court pointed out, “Criminal defendants have a constitutional right to the presumption of innocence and to have the government prove guilt beyond a reasonable doubt.” (United States v. Perlaza, supra, 439 F.3d 1149, 1171.) The presumption of innocence does not disappear whencontrary evidenceis presented. (/d. at p. 1172.) Instead, the presumption goes with the jury whenit deliberates (ibid.), and remainsin place until the jury concludes the government has proven each and every element of the charge beyond a reasonable doubt. (Paganov. Allard (D. Mass. 2002) 218 F.Supp.2d 26, 33.) | In People v. Hill, supra, 17 Cal.4th 800, 831, this Court concluded the prosecutor committed misconduct in rebuttal argument by making ambiguous comments that suggested the defendant had the burden of producing evidence to show a reasonable doubtasto his guilt. Here, the prosecutor shifted the burden of proof to appellant. By his emphasis on the supposed unchallenged nature of the government's evidence, the prosecutor transferred the burden of proof to the defense. The misconduct was exacerbated bya false depiction of the defense closing argument as conceding guilt on eight of the nine counts so that it was unnecessary to even deliberate whether the government hadsatisfied the burden of proof. 125 The misconduct was more egregious than in United States vy. Perlaza, supra, 439 F.3d 1149. Rather than suggest a presumption of guilt would replace the presumption of innocence during deliberations, the prosecutor argued the jury could forego deliberations andfill out guilty verdict forms before even considering the evidence. The misleading argument was also worse than in People v. Hill, supra, 17 Cal.4th 800. In that case, the prosecutor's rebuttal argument on reasonable doubt was at best unclear. Here, the prosecutor expressly stated his evidence and defense counsel’s Supposed concessions were decisive so that deliberations were not necessary for any count other than the charge of sodomy. (59 RT 6184, 6205.) Anderson, then, engaged in misconductin closing and rebuttal argument. (C) The Misconduct Claim Has Not Been Waived Whenever prosecutorial misconductis alleged, it is inevitable the attorney generalwill maintain any error has been waived. Prince Hamlet addressed the inescapable when hetold the mourners at Ophelia’s grave, “Let Hercules himself do what he may, the cat will mew,and the dog will have his day.” (Shakespeare, Hamlet, act V, scene one, lines 293-294.) Though appellant cannot ward off respondent’s certain argument, it is possible to address waiver in advancesothatit need not berevisited in the reply brief. First, the constitutional basis of the claim of error was established prior to jury selection. As appellant pointed out above, the trial court granted a motion to federalize all objections, and further agreed that all objections of counsel would include the entire federal Constitution. (1 RT 161-163.) The court also granted a 126 motion to makeall in limine decisions binding. (1 RT 157-159.) After Mr. Wagnerreplaced the public defender, he adopted as his ownall motions made by the public defender. (9 RT 513-514.) The court proceeded on the assumption counsel endorsed his predecessor's motions (15 RT 1170), and both the court and defense counsel affirmed this understanding prior to jury selection (27 RT 1802). The district attorney voiced no objection to this procedure. Hence,trial counsel’s objections to the prosecutors argumentmust be viewed as also incorporatingall federal constitutional grounds. Second, there is no waiverfor failure to object to each and every improper comment by Anderson. As respondentwill inevitably point out, defense counsel did not immediately object to every instance of misconduct. However, the law does not require the doing of a futile act. (People v. Sandoval (2001) 87 Cal.App.4th 1425, 1438 [105 Cal.Rptr.2d 504].) Thus, argument or objection is not required to preserve a point for review when it would have been futile. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1365, fn. 8 [113 Cal.Rptr.2d 804]; People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5 [161 Cal.Rptr. 762, 605 P.2d 401].) In this case, defense counsel objected repeatedly without success. Further objections would have beena waste oftime. Third, it can be anticipated the government will complain defense counsel failed to request a curative admonition to the misconduct. However, when defense counsel’s objection is overruled, there can be no waiver for failure to request an admonition. (People v. Hall (2000) 82 Cal.App.4th 813, 817 [98 Cal.Rptr.2d 527]; see also People v. Hill, supra, 17 Cal.4th 800, 801- 127 821; People v. Green (1980) 27 Cal.3d 1, 35, fn. 19 [164 Cal.Rptr. 1, 609 P.2d 468].) Forall the foregoing reasons,the claim of error has not been waived. Finally, even when the appellant has failed to object or lodged an objection which was somehow deficient, a reviewing court has the discretion to reach the merits of the claim of error. (See e.g., /n re Stuart S. (2002) 104 Cal.App.4th 203, 206 [127 Cal.Rptr.2d 856]: Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188 [122 Cal.Rptr.2d 866].) While appellant would never agree any portion of the assignment of misconduct has been waived, the Court can always consider the merits of the issue regardless of any waiver argument. (D) The Constitutional Error Requires Reversal of the Judgment Because the prosecutor's argument improperly informed the jury about the presumption of innocence and the government’s burden of proof beyond a reasonable doubt, the misconduct is reversible per se, for it can never be harmless to misstate these fundamental elements of a criminal trial. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278 [113 S.Ct. 2078, 124 L.Ed.2d 182].) In the alternative, the misconductis at least federal constitutional error that is reversible unless the government can establish it was harmless beyond a reasonable doubt. (People v. Woods (2006) 146 Cal.App.4th 106, 114 [2006 Cal.App. Lexis 2055]; United States v. Perlaza, supra, 439 F.3d 1149, 1171.) As argued above, the present matter satisfies the Chapman standard for reversal for federal constitutional error as well as the 128 Watson test for prejudice as a consequenceoferrors of state law. The prosecutor’s outrageouseffort to shift the burden of proof andto persuade the jury that defense counsel’s argument rendered deliberations superfluous cannot be harmless no matter what Standard is used to assess prejudice. The judgment should be reversed. 129 Vil. REVERSAL OF THE JUDGMENTIS REQUIRED FOR CUMULATIVE ERROR. Should the court conclude noneof the foregoing errors compel reversal of the judgment standing alone, the judgment should nonetheless be reversed pursuant to the cumulative error rule. The rule recognizes that even in cases where no single error demands reversal, the defendant may nevertheless be deprived of federal due process in light of the cumulative effect of a number of errors. (Taylor v. Kentucky (1978) 436 U.S. 478, 488,fn. 15 [98 S.Ct. 1930, 56 L.Ed.2d 468].) As for the state Constitution, the cases recognize that cumulative error must be assessed in any determination of prejudice within the meaningof article VI, section 13. (See People v. Holt (1984) 37 Cal.3d 436, 459 [208 Cal.Rptr. 547, 690 P.2d 1207].) The cumulative error rule is "the litmus test for whether defendant received due process and a fair trial." (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349 [234 Cal.Rptr. 442].) The cumulative error doctrine requires a reviewing court to "review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence." (/bid.) When the cumulative effect of errors deprives the defendantofa fair trial and due process, reversal is required. (People v. Cuccia (2002) 97 Cal.App.4th 785, 795 [118 Cal.Rptr.2d 668].) As detailed above, the trial in this case was infected with several serious errors. These errors deprived Thomas of due process (U.S. Const. 5th & 14th Amends.) a fair trial (U.S. Const. 6th 130 Amend.) and a reliable penalty determination (U.S. Const. 8th Amend.). Reversal is therefore the appropriate remedy. 131 PENALTY PHASE ERROR IX. THE TRIAL COURT’S DENIAL OF CHALLENGES FOR CAUSE TO PRO-DEATH JURORS DEPRIVED APPELLANT OF HIS RIGHT TO AN IMAPARTIAL JURY, DUE PROCESS, AND A RELIABLE PENALTY DETERMINATION. Jury voir dire in this matter was conducted over a period of 25 court days, beginning on July 17, 1997, and ending on August 26, 1997. At the conclusion of voir dire, the remaining venire members were orderedto return to court on September3, 1997. On that date, counselfor the parties exercised peremptory challenges, and a jury andfive alternates were selected. (13 CT 3832.) Prior to voir dire, prospective jurors were required to complete a questionnaire. They were then questioned about their views on capital punishment in sequestered voir dire. During this process, | defense counsel challenged a numberof venire members for cause based upon their views in favor of the death penalty. The court committed error by denying four of these challenges as the potential jurors were such emphatic supporters of capital punishment, so unwilling to give meaningful consideration to LWOPasanalternative to death, that they were substantially impaired in their ability to perform the duties of a trial juror as required by the law and the juror’s oath. (A) The Right to an Impartial Jury. The Sixth Amendment guarantees the right to an impartial jury. (U.S. Const. 6th Amend.) This fundamentalright is binding upon the states pursuant to the due process clause of the 132 Fourteenth Amendment. (Duncan v. Louisiana (1968) 391 U.S. 145, 156 [88 S.Ct. 1444, 20 L.Ed.2d 491].) The state’s power to exclude venire members from capital juries is limited to exclusion of persons whose views would prevent or substantially impair the performance of their duties in accordance with the law and their oaths. (Wainwright v. Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 83 L.Ed.2d 841].) Potential jurors who oppose the death penalty may serve on a capital jury if they are willing to look beyond their own views andfollow the law. (Lockhart v. McCree (1986) 476 U.S. 162, 176 [106 S.Ct. 1758, 90 L.Ed.2d 137].) Like jurors whose opposition to capital punishment would prevent them from following the law and honoring their oaths, proponents of the death penalty are subject to challenge for cause whentheir beliefs interfere with the ability to be fair and impartial. In Morganv.Illinois (1992) 504 U.S. 719, 729 [112 S.Ct. 2222, 119 L.Ed.2d 492], the court explained a “juror whowill automatically vote for the death penalty in every casewill fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do.” Because such prospective jurors ignore the law, they are subject to challenge for cause by the defendant. (/d. at pp. 729, 735.) This Court has held the Witt Standard forjurors generally opposedto capital punishment and the Morgan test for potential jurors who strongly support capital punishment are the same. (People v. Crittenden (1994) 9 Cal.4th 83, 121 [36 Cal.Rptr.2d 474, 885 P.2d 887].) On appeal, a reviewing court’s duty is to examine the circumstances surrounding a challenge for cause to determineif the 133 trial court's decision about whether the juror’s beliefs would “substantially impair the performance of his duties” is “fairly supported by the record.” (People v. Miranda (1987) 44 Cal.3d 57, 94 [241 Cal.Rptr. 594, 744 P.2d 1127].) (B) The Challenges for Cause. (1) Eric Horodas. At the time of jury selection, Horodas wasthe presidentof a real estate investment firm in San Francisco. (36 CT 10145.) A graduate of New York University School of Law, Horodas had practiced law in the past but he “got smart” and changedcareers. (35 RT 2992; 36 CT 10145.) Horodas was 43-years-old, married, and the fatherof two children. (36 CT 10143.) As he did with all potential jurors on individual voir dire, the court explained to Horodas that a potential capital case is divided into guilt and penalty phases; in a penalty phase the government would present evidence in aggravation and the defense would proffer circumstancesin mitigation. The court also told Horodasthat any penalty decision made by the jury would be carried out. (35 RT 2992-2995.) After hearing a succinct summary of the Young murder, Horodas told the court he would not automatically vote for death, that he would stil need to hear the evidence in aggravation and mitigation. (35 RT 2996.) However, Horodas stated, “My predisposition would be to minimize the impact of the mitigating factors. | think the crime would stand onits face.” (35 RT 2998.) Askedif he could still vote for LWOP, Horodas answered,“Yeah. It’s a long road, butit’s an option.” (/bid.) 134 Questioned on voir dire by defense counsel concerning his inclination to minimize mitigation, Horodas explained he meant several things. First, as a result of past experience with mental health professionals, he did not value the opinions of psychologists and psychiatrists. (35 RT 3008.) “I think common sensetells you most of the time what you need to know. You don’t need a psychiatrist to tell you that.” (/bid.) Second, because murder was such a serious matter, he would impose a heavy burden on the defense to show any mitigation. (35 RT 3008-3009.) Horodas was not impressed with complaints about a difficult childhood, for many people have overcome an adverse upbringing. The important thing _ wasto take responsibility for one’s actions. (35 RT 3009.) Horodas was simply “not likely” to consider family background as mitigation. (35 RT 3019-3020.) If the allegations were true, Horodas would be “predisposed to the harshest penalty.” (35 RT 3012-3013.) The defense would have a difficult time “convincing me that there was anything that was mitigating.” (35 RT 3013.) Questioned as to whether he would consider appellant’s youth as mitigation, Horodas said it would have some weight, but it would not change his opinion. (35 RT 3020- 3021.) Defense counsel challenged Horodas for cause. He argued Horodas was substantially impaired because he would not consider some potential mitigation, such as age and family history. Because he would not consider relevant evidence, Horodas should be excused. (35 RT 3022-3026.) The court denied the challenge. (35 RT 3026.) 135 The decision was an abuseofdiscretion. It is long settled that a sentencer must consider relevant mitigation. In Eddings v. Oklahoma (1982) 455 U.S. 104 [102 S.Ct. 869, 71 L.Ed.2d 1], a sentencing court recognized a youthfulkiller’s age as mitigation but refused to consider his troubled childhood. The high court reversed the death sentence, for the sentencer must consider relevant mitigation. (/d. at p. 115, fn. 10.) The weight to give mitigation is a separate question. (/d. at p. 115.) Here, the potential juror dismissed out of hand any evidence concerning appellant's background. (35 RT 3009, 3019-3020.) This refusal was apparently predicated upon the alleged crime (35 RT 3012-3013), his belief death was the appropriate penalty for the offense, and a philosophy of personal responsibility (85 RT 3009). Horodas, then, would not follow the law and honor the juror’s oath. Thetrial court committed error in denying the challenged for cause. (2) Pamela Snyder. Snyder was a high school graduate and worked as a meat clerk at a Safeway store in San Lendro. (33 CT 9636-9637.) Snyder was 43-years-old, divorced, and the mother of two adult children. (33 CT 9635.) As part of his standard voir dire, the prosecutor asked Snyder to self-score her views on capital punishment. He explained a score of one denoted someone who would nevervote for death, a person akin to Mother Theresa. At the other extreme, a self-score of ten Suggested a person who would automatically vote for death, one whobelieved if you kill, then you forfeit your life. As an example, the 136 district attorney cited the Terminator.” (36 RT 3080-3081.) Given this system of measurement, Snyder said she was, “Probably ten.” (36 RT 3081.) Questioned by the court concerning her answer, Snyder explained, “If | found that a person was guilty of a crime that should be punished by death, | would feel—I would always go with the death penalty.” (36 RT 3084.) The venire member said she must have misunderstood the self-score question. (/bid.) Defense counsel challenged Snyder for cause. Counsel pointed out Snyder wasthe only potential juror to that point who had scored herself as a ten in response to the district attorney's question.“ Defense counsel explained the prospective juror’s demeanor was a ten on the “Rambo scale,” and dismissed her answers backing away from extreme views as nothing more than an effort to provide the correct answer. (36 RT 3095-3096.) The court denied the motion. (36 RT 3096.) The ruling was an abuse of discretion. Because Snyder answered thedistrict attorney’s “Terminator versus Mother Theresa” *° The Terminator (MGM 1984). 76 At the time of the challenge for cause, the district attorney had asked a total of 22 potential jurors the “Terminator versus Mother Theresa” hypothetical. Snyder was the only personto self- score as a ten. The 21 answersin addition to Snyder were as follows: one self-score of 3 [35 RT 2975]; eight scores of 5 [31 RT 2401; 32 RT 2433, 2479; 33 RT 2630; 34 RT 2754, 2829, 2877, 2916]; one self-score of 5 or 6 [31 RT 2308]; one self-score of 5 to 7 [34 RT 2722]; three self-scores of 6 [31 RT 2337, 32 RT 2527; 34 RT 2691]; three self-scores of 7 [33 RT 2662; 35 RT 3006; 36 RT 3055]; two votes for 7 or 8 [31 RT 2366; 2792]: and two self-scores 137 hypothetical with a self-score of ten, she placed herself squarely in the category of automatic death. A juror who will vote for death in every instance is subject to challenge for cause, for the juror cannot follow the law and respect her oath. (Morganv.Illinois, supra, 504 U.S. 719, 729.) This score was not a misunderstanding. Snyder Stated on voir dire that how a child was raised had no impact on the adult. (36 RT 3088.) She also stated adults needed to be responsible for their conduct. (36 RT 3089.) It was error for the court to deny the challenge for cause. (3) Juror No. 17/Alternate Juror No. 5. Juror No. 17, who was seated as Alternate Juror No. 5, worked as a computer-programming analyst for the court system in Santa Clara County. (44 RT 4440; 15 CT 4466.) Atthetime of trial, Juror No. 17 was 33-years-old. He was single and lived in Fremont with his sister, brother-in-law, and their three children. (15 CT 4464- 4465.) Juror No. 17 was born in Cambodia, and arrived in the United States in 1982. (44 RT 4415.) In his questionnaire, the juror explained his general feelings about the death penalty as follows: “| think that if it can be proven beyond a reasonable doubt then a death penalty is a justice.” (15 CT 4473.) Questioned by defense counsel, Juror No. 17 explained his questionnaire response describing his feelings about the death penalty: “Well, it’s only fair. | that that if somebodykills somebody, and it can be proven beyond a reasonable doubt, then, you know, it's an eye for an eye.” (44 RT 4432.) The court interrupted of 8 [33 RT 2561, 2591]. | 138 counsel’s voir dire to ask Juror No. 17 if he would always vote for death if appellant was found guilty beyond a reasonable doubt. (44 RT 4433.) Juror No. 17 answered that he would. (/bid.) Juror No. 17 said LWOP would not be an acceptable punishmentif the crime was severe enough. (44 RT 4438-4439.) In this case, he believed the allegations were severe. (44 RT 4439.) Hence, the mitigation case would beirrelevant to the juror. Defense counsel challenged Juror No. 17 for cause. He argued the juror acknowledged LWOP would not be adequate punishment for a severe crime, and the charges in this case were severe. (44 RT 4441.) The court denied the challenge. (44 RT 4442.) Denial of the challenge was an abuseof discretion because the venire member espoused an “eye for an eye” philosophy thatis antithetical to the reasoned decision-making required for a juror in a capital case. Juror No. 17 said he would hearthe mitigation (44 RT 4434-4435), but this answer is meaningless. A juror must not just listen to mitigation; he or she must considerit, take it into account, and give the evidence somesort of weight in arriving at a penalty decision. (Eddings v. Oklahoma, supra, 455 U.S. 105, 115, fn. 10.) Juror No. 17, however, focused upon the crime. If the facts described by the court were developed attrial, then Juror No. 17 would automatically vote for death. (44 RT 4432, 4439.) Hence, Juror No. 17 could not consider both penalties as required by the law and the juror’s oath. The court committed error in denying the challenge for cause. 139 (4) Raquel Disperati. At the time of voir dire, Disperati was a 49-year-old housewife who lived in Fremont. (36 CT 10227.) Her spouse was a truck driver. (36 CT 10228.) Disperati completed high school and had received secretarial training at a business college. (36 CT 10229.) She recalled television news coverage of the Young homicide. (36 CT 10237.) Concerning the death penalty, Disperati believed “There are somepeople that are notfit to have the privilege of been [sic] on earth.” (36 CT 10236.) On voir dire, the prosecutor asked Disperati his standard “Terminator versus Mother Theresa” hypothetical. He explained a ten, someone who would always vote for death, as follows: “a ten is somebody whobelieves in the old Bible, an eye for an eye. You take somebody’s life or if you participate in activities in which somebodydies and thoseactivities are critical—robbery, kidnapping, something like that—somebody dies you lose yourlife every time. He will give a death penalty every time. You kill, you be [sic] killed. [1]] And we've been using the—to show somebodylike that, the only one— [{]]] Rememberthat movie the Terminator where the guy came from out of the other time and he waskilling everybody? [{]] Anyway, we've been using the Terminator or Rambo to show--” (38 RT 3568.) Asked to self-score, Disperati asked for some clarification. The prosecutor stated, “Mother Theresa would nevergive it and the other guy would always. [ff] What number do you think you’d be?” (38 RT 3569.) Disperati answered, “I would be a ten.” (/bid.) In 140 other words,like a courtroom Rambo, Disperati would vote for death in every case. Questioned by the court and defense counsel, Disperati quickly backed away from herposition. Rather than hew to herself- score, Disperati agreed with the court's leading questions explaining her “Terminator versus Mother Theresa” answer as nothing more than an affirmation of her belief the death penalty should be an available punishment—butnot an automatic one. (38 RT 3570.) Disperati was questioned on voir dire on July 30, 1997. (13 CT 3809.) Twelve days later, defense counsel asked whether a challenge for cause had been madeasto Disperati. (44 RT 4405.) Whenhe wasinformed no challenge had been lodged following voir dire, the challenge was made and denied by the court. (44 RT 4476.) As seen above, a juror who will vote for death in every instance is subject to challenge for cause, for the juror is unable to follow the law and respect her oath. (Morganv.Illinois, supra, 504 U.S. 719, 729.) Here, Disperati was provided with a detailed hypothetical question and choseto place herself among the extreme death penalty advocates who would vote for capital punishment in every case. Thetrial court committed error in denying the challenge for cause. (C) The Claim of Error Has Not Been Waived. In general, to preserve a claim the trial court committed error in denying a challenge for cause, the defendant must exercise a peremptory challenge to excuse the offending venire member, exhaust the available peremptory challenges, and express 141 dissatisfaction with the jury as finally constituted. (People v. Weaver (2001) 26 Cal.4th 876, 910-911 [111 Cal.Rptr.2d 2, 29 P.3d 103].) This Court has applied these requirements to capital cases. (See e.g., People v. Hayes (1999) 21 Cal.4th 1211, 1287 [91 Cal.Rptr.2d 211, 989 P.2d 645].) In this case, defense counsel did not satisfy these prerequisites. Of the four prospective jurors challenged for cause without success, only Pamela Snyder took a place in the jury box and was excused by defense counsel. (52 RT 5227.) Juror No. 17/Alternate No. 5 was called and seated as an alternate and was not challenged by the defense. (52 RT 5232.) Horodas and Disperati were not summoned during the jury selection process,soit was not necessary to exercise peremptory challenges to remove them. Defense counsel exercised 16 of the allotted 20 peremptory challenges.*” Finally, before the jury was sworn, counsel did not State dissatisfaction with the panel. Appellant respectfully requests the Court reconsider the aforementioned requirements in the context of challenges for cause founded upon a potential jurors general support of capital punishment. In Gray v. Mississippi (1987) 481 U.S. 648 [107 S.Ct. 2045, 95 L.Ed.2d 622], the prosecutor in a capital case used up the *” Defense challenges were used to excuse Kenneth Brunskill, Barry Bridges, Marilyn Kesseler, Amy Rouse, Joan Smith, Pamela Snyder, Kenneth Gault, Francisco Perez, Julia HoShue, Jason Cox, Marlene Eastman, Carolyn Lofton, Steve Abina, Susan Larson, Robert Kocik, and Tina Jackson-Odell. (52 RT 5225-5232.) 142 peremptory challenges conferred by state law, yet wanted to exclude a potential juror he perceived as unfavorable. Counsel therefore asked the court for another peremptory challenge on the ground he had been wrongly forced to expend his challenges on jurors the court should have excluded for cause. Rather than accedeto this request, the trial judge excused the juror for cause despite her willingness to consider imposition of capital punishment. A closely divided high court reversed the judgment. The majority concluded the nature ofjury selection defies harmless error analysis. (Gray v. Mississippi, supra, 481 U.S. 648, 665.) Thus the improper removal of a potential juror for cause required per se reversal of the judgment. (/d. at p. 668.) Gray was decidedin the final term of Justice Powell’s tenure on the high court. Rossv. Oklahoma (1988) 487 U.S. 81 [108 S.Ct. 2273, 101 L.Ed.2d 80], decided the following year, reached a different conclusion. Justice Kennedy joined the four dissenters from Grayto form the majority. In Ross, a trial court committed errorin failing to grant a challenge for cause to a pro-death juror. The defense was forced to use a peremptory challenge to remove the juror, and expendedthe challenges permitted by state law. The court was not persuadedby the argument a peremptory challenge was needlessly used on a biased juror. (/d. at p. 88.) Justice Marshall authored a dissent for the four justices remaining on the court from the Gray majority. He noted that Gray stands for the proposition reversal is mandatory when “the composition of the jury panel as a whole could possibly have been affected by the trial court’s error.” (Ross v. Oklahoma, supra, 487 143 U.S. 81, 92 (dis. opn. of Marshall, J:) This is so whetherthe erroris grounded upon Witt exclusion or failure to excuse for cause jurors biased in favor of capital punishment, for either error affects the composition of the jury panel under the Gray standard. (Ross v. Oklahoma,supra, 487 U.S. 81, 93 (dis. opn. of Marshall, J.) The Gray and Ross decisions are incongruent, and the efforts of the Ross majority to limit Gray to its facts are far from persuasive. In Gray, the high court reaffirmed the per se penalty reversalrule of Davis v. Georgia (1976) 429 U.S. 122, 123 [97 S.Ct. 399, 50 L.Ed.2d 339]. (Gray v. Mississippi, supra, 481 U.S. 648, 667.) Gray and Davis—not to be confused with the Honorable Gray Davis—are grounded upon real-world recognition that mistaken exclusion of a scrupled juror or the failure to remove an auto-death venire member changes the dynamics and structure of jury selection. The orderin which potential jurors are called for voir dire matters, and so does a trial court’s rulings on challenges for cause based upon a prospective jurors views on capital punishment. Each venire member changes the dynamics of the jury selection process. Each ruling by the trial court likewise affects the dynamics, as well as the strategy of both sides in attempting to seat an impartialjury. Rather than focus upon the gritty facts of jury selection, Ross is based upon a myopic concentration on the peremptory challenge as a creation of state law rather than a prerequisite imposed by the Constitution. The peremptory challenge, however, is nothing more than a tool, a means to the end of enforcing the Sixth Amendment right to trial by an impartial jury. The Ross majority’s focus on the peremptory challenge—the means rather than the end—fails to 144 consider the larger picture, the crucible of a courtroom, the place where constitutional rights must be enforced in order to have meaning. _ In the present case, the trial court committed multiple jury selection errors, and these errors violated appellant’s rights to due : process (U.S. Const., 5th & 14th Amends.), a fair trial by an impartial jury (U.S. Const., 6th Amend.), and a reliable penalty determination (U.S. Const., 8th Amend.). The court should reverse the judgment. 145 X. THE TRIAL COURT COMMITTER ERRORIN DENYING A DEFENSE MOTION TO PROHIBIT THE CASE FROM PROCEEDING TO A PENALTY PHASEIN LIGHT OF THE LIFE WITHOUT THE POSSIBILITY OF PAROLE SENTENCE IMPOSED ON CODEFENDANT GLOVER. (A) Procedural Background On April 4, 1997, Henry Glover was sentenced to life imprisonment without the possibility of parole, life with the possibility of parole, and a determinate term of 20 years. (13 CT 37458-3750.) This outcome and the issues posed by the codefendant’s sentence were raised andlitigated at three discrete points in appellant'strial. On July 2, 1997, prior to jury selection, the district attorney made an oral motion to exclude any reference to the Glover sentence at any point during trial, (27 RT 1803.) Defense counsel Stated he did not plan to bring it up during voir dire, but might wish to revisit the question at a later point in time. (/bid.) The trial court found Glover’s sentence was not relevant “because we are not talking about proportionality.” (27 RT 1804.) The court therefore prohibited any mention of the codefendant’s sentence during jury selection and the “trial in chief,” presumably meaning the government's case-in-chief. (/bid.) On October 3, 1997, the court considered penalty phase motionsin limine. Defense counsel raised the questionof intra-case proportionality and argued a death sentence for Thomas would be arbitrary and capricious in violation of the Eighth and Fourteenth amendments given that Glover—whowaslikely the actual shooter— 146 was sentenced tolife imprisonment without the possibility of parole. Counsel therefore asked the court to prohibit the case from going forward to a penalty phase. (60 RT 6355-6356.) The district attorney opposed the motion, and the court denied the request. (60 RT 6359.) On January 9, 1998, after the jury returned a penalty decision and prior to the sentencing hearing, defense counsel filed a motion to reduce the punishmentfrom death tolife imprisonmentwithout the possibility of parole. (14 CT 4155.) in the motion, counsel argued imposition of the death penalty would be cruel and unusual in violation of the Eighth Amendment and Article |, section 17 of the California Constitution. Counsel pointed out Glover was more likely than not the shooter and actual killer. Furthermore, Glover was the primary actor in the crimes. Hence, death for appellant would be disproportionate to his individual culpability and arbitrary and capricious given the sentence imposed on Glover. (14 CT 4161- 4163.1.) On January 16, 1998, defense counsel reiterated these arguments in support of the motion to reduce the punishment. Counsel reminded the court that he was prohibited from mentioning the Glover sentence during the penalty phase. He maintained a death sentence in this matter would violate federal due process and equal protection guarantees. A death sentence would also be arbitrary and capricious. (67 RT 7119.) The court denied the motion to modify the punishment on proportionality grounds and sentenced appellant to death. (67 RT 7131, 7138.) 147 (B) The Trial Court Committed Error in Denying the Motion to Prohibit a Penalty Phase as the Death Penalty Is Grossly Disproportionate to Appellant’s Personal Culpability Throughout the modern era of death penalty jurisprudence inaugurated by the high court’s decision in Furman v. Georgia (1972) 408 U.S. 239 [92 S.Ct. 2726, 33 L.Ed.2d 346] the Eighth Amendment has beeninterpreted to prohibit imposition of capital punishment in an arbitrary and irrational manner. To eliminate random imposition of the death penalty, which Justice Stewart famously compared to being struck by lightning (id. at p. 309, conc. opn. of Stewart, J.), sentencing discretion must be channeled and limited (Gregg v. Georgia (1976) 428 U.S. 153, 189 {96 S.Ct. 2909, 49 L.Ed.2d 859] (plur. opn. of Stewart, J.)). Furthermore, the Eighth Amendment bans capital punishment whenit is disproportionate to the crime (id. at p. 173) or the individual defendant’s personal culpability (Enmund v. Florida (1982) 458 U.S. 782, 798 [102 S.Ct. 3368, 73 L.Ed.2d 1140]). The Eighth Amendment does not demand intercase proportionality review, meaning a reviewing court is not compelled by the federal Constitution to compare a death sentence on appeal with the punishment imposed in other cases. (Pulley v. Harris (1984) 465 U.S. 37, 51-54 [104 S.Ct. 871, 79 L.Ed2d 29].) However, this Court has held that article |, section 17 of the California Constitution, which prohibits the imposition of cruel and unusual punishment, requires intracase proportionality, meaning a comparison of the offender’s sentence with the punishment imposed on his or her confederates and determination whether the death 148 penalty is disproportionate to the offender’s personal culpability within the meaning of People v. Dillon (1983) 34 Cal.3d 441, 478- 489 [194 Cal.Rptr. 390, 668 P.2d 697]. (People v. Bacigalupo (1991) 1 Cal.4th 103, 151-152 [2 Cal.Rptr.2d 335, 820 P.2d 559].) In appellant’s view, the death penalty is grossly disproportionate to his personal culpability under both the state and federal constitutions. (1) California Constitution, Article |, Section 17 Analysis The California Constitution prohibits the imposition of cruel or unusual punishment. (Cal. Const., art. |, § 17.) Like the Eighth Amendment, the Constitution forbids torture as a means or method of punishment. (Weems v. United States (1910) 217 U.S. 349, 371 [30 S.Ct. 544, 54 L.Ed. 793].) The state Constitution also bans punishment that “is so disproportionate to the crime for whichit is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (/n re Lynch (1972) 8 Cal.3d 410, 424 [105 Cal.Rptr. 217, 503 P.2d 921].) This Court has described three techniques to ascertain if a sentenceif grossly disproportionate and therefore prohibited as cruel and unusual punishment. First, the court looks to “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (/n re Lynch, supra, 8 Cal.3d 410, 425.) The nature of the offense should be examinedin the abstract and in light of the facts of the case. (People v. Dillon, supra, 34 Cal.3d 441, 479.) As for the offender, the analysis focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant’s individual culpability as 149 shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (/bid.) In Dillon, the Court's proportionality analysis included a comparison of the appellant's punishment with the sentences imposed onhis associates in the fatal incident. (People v. Dillon, supra, 34 Cal.3d 441, 488.) In subsequent death penalty cases, however, the Court has backed away from such sentence comparisons. In People v. Hill (1992) 3 Cal.4th 959, 1014 [13 Cal.Rptr.2d 475, 839 P.2d 984] the Court stated, “Properly understood, intracase proportionality review is ‘an examination of whetherdefendant's death sentence is proportionate to his individual culpability irrespective of the punishment imposed on others. [Citation.]” In People v. Maury (2003) 30 Cal.4th 342, 441 [133 Cal.Rptr.2d 561, 68 P.3d 1], the Court explained Intracase proportionality review entails an examination of the circumstancesof the offense, including the extent of the defendant’s involvementin the crime, as well as the offender's personal characteristics, including age, criminal history, and mental capabilities. In this case, there can be no doubt the crime which rendered appellanteligible for capital punishment wasa terrible one. As seem above in appellant's argument on the government's use of inconsistent theories, as between Thomas and Glover, it is more likely that Glover was the actualkiller rather than appellant. Glover was the leading actor in the Young homicide. Glover rather than Thomas talked to—and no doubt intimated—Young inside the Mustang and forced her to submit to being enclosed in the vehicle’s trunk. (52 RT 5369-5370.) Although the policetried to get Thomas 150 to admit he wasthe shooter, he steadfastly denied it. (57 RT 5938.) Instead, appellant assuredthe officers that he did not want any harm to cometo the victim. (57 RT 5942.) He therefore urged Glover to leave the victim at the Point Richmond crime scene. (57 RT 5943, 5949.) In the Flennaugh incident, Glover was again the leader while Thomas was a merefollower. Glover carried the AK-47, demanded money, punched the pregnant victim and broke her nose. (55 RT 9643, 5680.) Whenthe police arrived, Glover engagedina firefight rather than surrender. (55 RT 5647-5648.) In the Silvey-White robbery, Glover once again confronted the victim, punched her, and fought with her. (61 RT 6443, 6449-6450.) Thomas,by contrast, played a muchlesserrole. Given this pattern of Glover acting as the leader and more than willing to engage in intimidation, physical violence against a pregnant woman and anelderly female, there is good cause to believe Glover was the actual killer rather than appellant. As for the offender, Thomas was a very young manatthe time of the crimes. Born on May 19, 1973, appellant was 19-years-old at the time of the crimes on December 8, 1992. Youth is universally recognized as a factor in mitigation. (Johnson v. Texas (1993) 509 U.S. 350, 367 [113 S.Ct. 2658, 125 L.Ed.2d 290]; Eddings v. Oklahoma, supra, 455 U.S. 104, 115.) Similarly, a childhood of deprivation and neglect is generally accepted as powerful mitigation. (Penry v. Lynaugh (1989) 492 U.S. 302, 328 [109 S.Ct. 2934, 106 L.Ed.2d 256].) In this case, the penalty phase case-in-mitigation demonstrated appellant came from a background of extreme abuse 151 and neglect. In summary, Glover wasthe leading actorin all three incidents with appellant. Appellant’s relative culpability compared to the codefendant, then, strongly favored imposition of life without the possibility of parole—the same punishment as Glover received— rather than the death penalty. Thomas wasa teenageratthe time of the crimes, and a young man who hadsuffered a great deal for such a young age. It is a gross miscarriage of justice and a violation of the state Constitution’s ban on cruel and unusual punishmentfor the killer to receive a life without parole sentence and the non-shooterto receive the death penalty. On these facts, when the leading actoris sentencedto less than death, appellant's death sentenceis arbitrary and capricious. The trial court committed prejudicial state constitutional error in denying the motion to prohibit the case from proceeding to a penalty hearing. (2) Eighth Amendment Analysis In appellant’s view, despite Pulley v. Harris, supra, 465 U.S. 37, the Eighth Amendmentrequires intracase proportionality review. As seen above, the Eighth Amendmentproscribes the death penalty when the punishment is disproportionate to the crime (Gregg Vv. Georgia, supra, 428 U.S. 153, 173 (plur. opn. of Stewarrt, J.) or to the individual defendant's personal culpability. Because of these restrictions on capital punishment, the death penalty is grossly disproportionate and excessive punishmentfor the rape of an adult woman. (Coker v. Georgia (1977) 433 U.S. 584, 592 [97 S.Ct. 2861, 93 L.Ed.2d 982] (plur. opn. of White, J.).) The death penalty is also forbidden for an accomplice who doesnotharboranintenttokill or, 152 as a major participant, act with reckless indifference to humanlife. (Tison v. Arizona, supra, 481 U.S. 137, 158.) Given the limitations on capital punishment imposed by the Eighth Amendment, federal law and the state of Florida recognize the lesser sentence of another participant in the fatal crime as relevant mitigation. (Ray v. State (Fla. 2000) 755 So.2d 604, 611.) For example, in the Ray case, the Florida Supreme Court reversed the appellant’s death sentence because his codefendant, who was at least as culpable if not more so, had receiveda life term. (/bid.) In Parker v. Dugger (1991) 498 U.S. 308 [111 S.Ct. 731, 112 L.Ed.2d 812] a Florida defendant presented evidence in the penalty phasethat his associates in crimes which resulted in two convictions for first degree murder had received sentencesoflife imprisonment. For reasons unrelated to the present contention, the high court reversed the judgment. Parker is relevant to the present case because the court explicitly noted the fact that none of the defendant’s accomplices received a death sentence was relevant mitigating evidence that should have been considered by the state Supreme Court. (/d, at p. 314.) Appellant recognizes the Court hasrejected this interpretation of Parker. (People v. Mincey (1992) 2 Cal.4th 408, 480 [6 Cal.Rptr.2d 822, 827 P.2d 388].) The Court has instead held that evidence of a codefendant’s sentence is not relevant “because it doesnot shed anylight on the circumstance of the offense or the defendant's character, background, history or mental condition.” (People v. Cain (1995) 10 Cal.4th 1, 63 [40 Cal.Rptr.2d 481, 892 P.2d 1224] see also People v. Brown (2003) 31 Cal.4th 518, 562 [3 153 Cal.Rptr.3d 145, 73 P.3d 1137]; People v. McDermott (2002) 28 Cal.4th 946, 1005 [123 Cal.Rptr.2d 654, 51 P.3d 874].) The Court should reconsiderits reading of Parker. The trial court’s error in denying the motion to prohibit the case proceeding to penalty phase, then, was federal constitutional error as well as a violation of the California Constitution. (C) The Trial Court Committed Error in Denying the Post-Trial Motion to Reduce the Penalty to Life Imprisonment Without the Possibility of Parole on Proportionality Grounds As seen above, defense counselfiled a motion to modify the sentenceto life without the possibility of parole. (14 CT 4155.) In his written brief and in oral argument in support of the motion, defense counsel stressed intracase proportionality and maintained imposition of a death sentence would be in violation of the Eighth Amendment and the state Constitution’s prohibition on cruel and unusual punishment. (67 RT 7119; 14 CT 4161-4163.1.) The district attorneycited People v. Hill, supra, 3 Cal.4th 959, and other casesforthe proposition proportionality analysis was prohibited. (67 RT 7120-7121.) Thetrial court believed it was inappropriate to even consider the codefendant’s sentence. (67 RT 7120.) Hence, the court denied the motion to reduce the punishment on comparative proportionality grounds: “The Court with respect to the motion to modify, to impose a lesser punishment on proportionality grounds, that will be denied, obviously, becauseit’s not the law in California. The casescited by 154 the prosecution the Court is familiar with. And so, on that basis, the motion will be denied.” (67 RT 7131.) The trial court was mistaken in believing an Intracase proportionality analysis was prohibited in California. Instead, as explained above, the state Constitution’s prohibition on cruel and unusual punishment also bars the imposition of punishment that is grossly disproportionate to the defendant's individual culpability. As seen above, a death sentence is grossly disproportionate for appellant, a non-killer who lacked the intent to kill. Although guilty of felony-murderas a principal in the kidnapping and rape, the death penalty is so disproportionate to appellant’s personal responsibility as to shock the conscience. In short, intracase proportionality review pursuant to the Eighth Amendment and the California Constitution requires reversal of the death sentence imposed on Thomas. 155 XI. THE TRIAL COURT COMMITTED ERRORIN DENYING A MOTION TO EXCLUDESILVEY’S IDENTIFICATION OF APPELLANT AS THE SECOND OFFENDERAS UNRELIABLE AND TAINTED BY SUGGESTIVE POLICE PROCEDURES. (A) Procedural History The trial motions filed by the public defender on behalf of appellant included trial motion 18, which sought to prohibit the introduction of any testimony concerning Constance Silvey-White’s identification of appellant as the second offender in the assault and robbery which took place in the driveway of her Berkeley home on December 11, 1992. (8 CT 2359.) On October 10, 1995,thetrial court granted a motion to severtrial on the Silvey incident from the charges stemming from the Young murder and the Flennaugh robbery. As a consequence of this ruling, the district attorney amended the statement in aggravation to include the Silvey matter. (2 RT 260.) The court conducted a hearing on the motion beginning on March 14,1996. Berkeley Police Department inspector Daniel Wolke testified that he was in charge of the robbery detail and handled the Silvey case. (20 RT 1515-1516.) Patrol officer Gomez took the initial report in the case. (20 RT 1516.) Counsel for the parties stipulated that immediately after the incident, Silvey told the officer that she did not get a very good look at the suspect who accompanied herassailant. (21 RT 1677.) Wolkefirst questioned Silvey on December 14, 1992. (20 RT 1516.) At the time of the interview, Wolke was familiar with the 156 BART murder case from reports in the news media. (20 RT 1535.) He believed the Silvey incident was similar to the BART case. (20 RT 1534.) At some point before Silvey viewed a live lineup, Wolke told her the incident might be connected to the BART murder. (20 RT 1538, 1540.) Wolke told Silvey that he was working with Oakland police to determine if her case was similar to the BART murder. (20 RT 1540.) Silvey was familiar with the BARTcase from both the newspaperandtelevision before she was attacked. (21 RT 1600-1602.) Prior to the lineup, Silvey recognized there were points of similarity between the two cases. (21 RT 1604, 1611.) On December 17, 1992, Wolke drove Silvey to San Jose for a meeting to develop a composite drawing of the offenders. (20 RT 1517.) Silvey was able to provide a description of the offender who tried to force her into the trunk of her car, and a drawing of this individual was assembled. (20 RT 1567.) She could not recall enough about the second manto do a composite. (20 RT 1568.) On January 7, 1993, Wolke transported Silvey to a live lineup conducted by Oakland Police Department and supervised by detective Kozicki. (20 RT 1517-1518; 21 RT 1589.) There were eight black malesin the lineup, including Gloverin position three and Thomas in position seven.** (20 RT 1522-1523,) The lineup participants were required to approach the window individually, don a baseball hat, and then put on a knit cap. (20 RT 1527.) The men °° A photographof the lineup wasidentified as exhibit 15 for the 402 hearing. (20 RT 1522.) The photograph was renumbered as exhibit 57 during the penalty phase. (61 RT 6463.) 157 were directed to say, “Shh, be quiet. Don’t say a word. Getin. Get in.” (21 RT 1660.) Silvey testified that when Glover put on the knit cap and spoke, “it all came back to her.” (21 RT 1659.) After viewing the lineup, Silvey marked herlineup card by placing an “X”on the figure in position three.’ Silvey explained she was positive of her identification of Glover as the offender who assaulted her. (21 RT 1591.) As for Thomas, who wasin position seven, Silvey placed a question mark on herlineup card. (/bid.) Silvey stated she did not see the second perpetrator as clearly as the attacker, so her memory of him was not as clear. (21 RT 1591-1592.) Wolke gave Silvey a ride homefrom the lineup. (20 RT 1532.) At her residence, Wolke questioned Silvey about her choices. Silvey told him that she was positive about her identification of number three—meaning Glover—as the person who grabbed her. (/bid.) She thought number seven—appellant Thomas—was the second offender. (/bid.) Silvey had initially believed the manin position two was the second perpetrator. (20 RT 1532-1533.) However, after looking at the lineup for a time she concluded number two was not the other maninvolvedin the incident. (20 RT 1533.) The court found there was no evidence the lineup was suggestive or that law enforcement engaged in any improper conduct. The motion was therefore denied. (21 RT 1678.) The decision was an abuseofdiscretion. *° For purposesof the 402 hearing, a copy of the lineup card was marked as exhibit 19. (20 RT 1529.) During the penalty phase, 158 (B) Silvey’s Identification of Appellant Was Unreliable, Tainted by Suggestive Police Procedures and Resulted in a Violation of Fifth and Fourteenth Amendment Due Process. The risks and hazards associated with eyewitness identification are well-known. (United States v. Wade (1967) 388 U.S. 218, 228 [87 S.Ct. 1926, 18 L.Ed.2d 1149].) When aninitial misidentification occurs, it reduces the value of subsequent lineup and courtroom identification, for the witness acts upon a recollection of the photograph orlineup rather than a memory of the perpetrator of the underlying crime. (Simmons v. United States (1968) 390 U.S. 377, 383-384 [88 S.Ct. 967, 19 L.Ed.2d 1247].) A conviction based upon mistaken identification is a gross miscarriage of justice. (Stovall v. Denno (1967) 388 U.S. 293, 297 [87 S.Ct. 1967, 18 L.Ed.2d 1199].) When a contested identification is challenged on appeal, “each case must be decided uponits own facts . . .” (Simmonsv. United States, supra, 390 U.S. 377, 384.) Accordingly, a reviewing court must apply a totality of the circumstances test to determine whetheridentification procedures violate due process. (Stovall v. Denno, supra, 388 U.S. 293, 302; People v. Contreras (1993) 17 Cal.App.4th 813, 819 [21 Cal.Rptr.2d 496].) The standard of review is de novo rather than abuse of discretion. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609 [31 Cal.Rptr.3d 160, 115 P.3d 472].) In reviewing an identification, the court should consider: “the the card was remarked as exhibit 60. (61 RT 6464.) 159 opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time betweenthe crime and the confrontation. Against these factors is to be weighted the corrupting effect of the suggestive identification itself.” (Manson v. Brathwaite (1977) 432 U.S. 98, 114 [97 S.Ct. 2243, 53 L.Ed.2d 140].) Consistent with the high court cases, the California decisions apply a totality of the circumstances test to determine if identification procedures violate federal due process. (People v. Cowger (1988) 202 Cal.App.3d 1066, 1071 [249 Cal.Rptr. 240].) In the present matter, the totality of the circumstances demonstrate the trial court abused its discretion in denying the motion to prohibit Silvey from identifying Thomas as the accomplice of her assailant. To begin with, Silvey acknowledged she had only a limited opportunity to observe the second perpetrator. She explained the second man went to the car rather than approachher. (21 RT 1619-1620.) Second, Silvey’s attention was focused on Glover, the person with whom she had a physical struggle. Third, Silvey was uncertain of her identification of Thomas at the lineup. This doubt was physically recorded as a question mark. (21 RT 1591-1592.) Finally, the identification procedures were suggestive. Wolke told Silvey in advance the case could be related to the BART murder—a case that was in the newspapers andin the television news. (20 RT 1538-1540; 21 RT 1600-1602.) Silvey therefore had ample opportunity to view images of the BART murder suspects 160 prior to the lineup. At the 402 hearing, Silvey testified the assailant had a moustache and perhaps additional facial hair. (21 RT 1647-1648.) At the time of the lineup, Glover had a moustache and may have also had a goatee.*° (21 RT 1675.) However, Silvey did not think he had as muchhair as the assailant. (/bid.) A viewing of the lineup photograph shows Glover was the only participant who had substantial facial hair.°' The composition of the lineup was therefore suggestive. In addition to selecting lineup participants to make Glover stand out, the police included Thomas in the samelineup. Again, a viewing of the lineup photograph shows Thomas and Glover were dissimilar in size and appearance. Glover had significant facial hair, while Thomas wasclean-shaven.** It was therefore unlikely Silvey would confuse one man for the other. However, their joint appearancein a single lineup was suggestive. The suggestiveness from a joint lineup is apparent from several facts. First, Silvey was showna single lineup to identify two suspects. Because of her close contact with the assailant and ability to provide adequate information to prepare a composite drawing, there was every reason to believe she would pick out Glover as the °° The moustache and goateeare visible in exhibit 58, a lineup photograph with Glover standing near the window. (61 RT 6463.) 3" In her penalty phase testimony, Silvey pointed out the man in position two had a moustache. (61 RT 6500.) °? Appellant's appearanceat the time of the lineup is shownin exhibit 59, a lineup photograph with Thomas standing in front of the group and close to the window. (61 RT 6464.) 161 assailant. This identification reduced the number of possible accomplicesin the lineup from eight to seven. It also allowed Silvey to focus upon the remaining men as the accomplice rather than the assailant. Finally, the single lineup permitted Silvey to compare the participants to one another—as in any lineup—and also to Glover. All of these circumstances increased the likelihood of an identification of Thomasas the second perpetrator. In summary, the hearing on appellant’s motion established there was a very low probability of Silvey being ableto identify the assailant’s confederate. She had only a limited view of the man while her attention was focused on her attacker. (21 RT 1619-1620.) Immediately after the incident, Silvey told a patrol officer that she did not get a very good look at the second man. (21 RT 1677.) Priorto the lineup, Wolke planted the thought with Silvey that the attack on her was linked to the BART murder—a crime which was in the newspapersand onthetelevision news. (20 RT 1538,1540.) At the lineup, the government used suggestive procedures by the selection of lineup participants and placing Thomas in the same group as Glover. The totality of the circumstances, then, supports a conclusion the identification of Thomas was tainted. Her identification of Thomasatthe preliminary hearing and againattrial was based upon a recollection of the lineup rather than the underlying incident. (Simmons v. United States, supra, 390 U.S. 377, 383-384.) Denial of the motion to exclude the identification resulted in a denial of due process (Stovall v. Denno, supra, 388 U.S. 293, 203) and a miscarriage of justice (id. at p. 297.) Because the identification was 162 crucial to the most substantial factor in aggravation presented during the case-in-aggravation, the penalty decision in this matter does not meet the Eighth Amendment requirement of heightened reliability. (Woodson v. North Carolina, supra, 428 U.S. 280, 305.) The penalty verdict must be reversed. 163 Xil. THE VICTIM IMPACT TESTIMONY OF MARY YOUNG ANDELY GASSOWAYVIOLATED THE EIGHTH AMENDMENT AND REQUIRES REVERSAL OF THE PENALTY DECISION (A) Procedural History On August 23, 1995, the public defender filed trial motion numberthreeto limit victim impact evidence. (8 CT 2162-2178.) In the motion, counsel requested the court placestrict limits on victim impact evidence consistent with the views expressed by Justice Kennard in a concurring opinion filed in People v. Fierro (1991) 1 Cal.4th 173 [3 Cal.Rptr.2d 426, 821 P.2d 1302]. (8 CT 2178.) In her opinion, Justice Kennard stated victim-impact evidence should be limited to personal characteristics of the victim known to the defendant at the time of the crime or properly received during the guilt phase. (/d. at pp. 263-264, conc. & dis. opn. of Kennard, J.) On October 10, 1995, the trial court considered the motion. The court ruled victim-impact would be limited to family members. (2 RT 238.) As there were 12 persons on the government's witness list, the court stated the numberof family members could raise a 352 issue. (/bid.) The court deferred any consideration of the 352 question to the penalty phase. (2 RT 241.) The defense motion was therefore granted in part. (2 RT 242.) Nearly two years later, on October 3, 1997, the court and successor counselrevisited the victim-impact issue in a motion in limine prior to the start of the penalty phase. Counsel argued Mary Young should not be allowed to testify that she incurred debts for funeral expenses and grief counseling. Defense counsel maintained 164 such economic losses were a result of some sort of error by victim- impact people rather than a direct result of the homicide. He went on to argue losses to Mary’s childcare business should not be: admitted. Counsel made a causation argument, and contended these developments did not satisfy the “but for’ test. (60 RT 6342- 6346.) The court overruled the objections. (60 RT 6346, 6348.) On October 7, 1996, Mary testified as a victim-impact witness. She described her youngest daughter as kind, helpful, and a religious person who wasa church volunteer. (62 RT 6604.) Mary wasvery close to the victim. (62 RT 6605.) Sheinitially learned of Francia’s death on the television news. (/bid.) Mary could not believe her daughter was dead until she saw the body at a funeral home. (62 RT 6605-6606.) Francia was buried in Texas next to Mary’s father. (62 RT 6606.) A special headstone was madein the shape of a pink heart. Inscribed on it are the words, “My Beloved Daughter, Francia Young.” (/bid.) After the murder, Mary could no longer operate her business, an in-home daycare for children. (52 RT 5383; 62 RT 6607.) She wasalso unable to provide care for her own sick mother and had to entrust her care to a family memberin Louisiana. (62 RT 6607.) Mary was unable to sleep for three months after the murder and ended upin the hospital for a week. (/bid.) Mary received weekly grief counseling which she thought would be paid for by the “victim of a crime board.” (62 RT 6607-6608.) Because Mary had insurance, the bill was not paid and she wasleft nine thousand dollars in debt. (62 RT 6608.) Following Mary’s testimony, Ely Gassoway wascalled as a 165 victim-impact witness. Gassowaytestified Mary was a very good friend whom he had known since 1973. (62 RT 6610.) Mary’s daughters considered Gassowaylike a stepfather. He reciprocated and considered Francia his daughter. (/bid.) Gassowaytestified he was “destroyed” by the newsof Francia’s death. (62 RT 6611.) (B) The Mary Young Victim-impact Testimony Violated the Eighth AmendmentHeightened Reliability Requirement The public defender asked the court to limit victim-impact testimonyto the victim’s personal characteristics known to appellant at the time of the homicide as well as evidence properly received during the guilt phase. (8 CT 2164.) This request was granted in part by the ruling restricting the class of victim-impact witnesses to family members. (2 RT 242.) Successor counsel added objections to financial losses incurred by Mary following her daughter’s death. (60 RT 6342-6346.) Despite these objections, Mary was permitted to testify to characteristics of the victim that could not have been known to Thomas at the time of the crimes, to funeral and_ burial arrangements, the loss of her daycare business, and debts forgrief counseling. All of this evidence was improperandhighly prejudicial. In Payne v. Tennessee (1991) 501 U.S. 808, 827 [111 S.Ct. 2597, 115 L.Ed.2d 720] the court held the Eighth Amendmentdid not forbid the introduction of victim-impact evidence. Unfortunately, the court failed to articulate any procedural guidelines to restrict the introduction ofvictim impact evidence. (Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases (2003) 88 Cornell L. Rev. 257, 267.) 166 In People v. Edwards (1991) 54 Cal.3d 787 [1 Cal.Rptr.2d 696, 819 P.2d 436] this Court held victim-impact evidence was admissible under factor (a), the circumstances of the crime. The Court declined to “hold that factor (a) necessarily includes all forms of victim impact evidence and argument allowed by Payne[citation].” (/bid.) Instead, this Court cautioned the decision did “not mean there are no limits on emotional evidence and argument.” (/d. at p. 836.) To the contrary, the jury must “not be given the impression that emotion may reign over reason.” (/bid.) Trial courts must attemptto strike a balance: “On the one hand,it should allow evidence and argument on emotional though relevant subjects that could provide legitimate reasons ‘to sway the jury to show mercyor to impose the ultimate sanction. On the other hand, irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role or invites an irrational, purely subjective response should be curtailed.’ [Citation.]’ (/bid.) As explained above, in People v. Fierro, supra, 1 Cal.4th 173, Justice Kennard wrote in a concurring and dissenting opinion that victim-impact evidence should be limited to personal characteristics of the victim known to the defendant at the time of the crime or properly received during the guilt phase. (/d. at pp. 263-264 (conc. & dis. opn. of Kennard, J.).) The public defender urged the court to apply this standard to victim-impact testimony. (8 CT 2168.) In her concurring and dissenting opinion in Fierro, Justice Kennard pointed out that in Booth v. Maryland (1987) 482 U.S. 496, 504-505 [107 S.Ct. 2529, 96 L.Ed.2d 440] the high court considered it self-evident that the phrase “circumstances of the crime” did not 167 include evidence of the personal characteristics of a murdervictim and the emotional impact of.the crimes on the victim’s family. (People v. Fierro, supra, 1 Cal.4th 173, 260 (conc. & dis. opn. of Kennard, J.).) Justice Kennard also pointed out that in South Carolina v. Gathers (1989) 490 U.S. 805 [109 S.Ct. 2207, 104 L.Ed.2d 876] the court held “that the term ‘circumstances of the crime’ did not include personal characteristics of the victim that were unknown to the defendant at the time of the crime.” (People v. Fierro, supra, 1 Cal.4th 173, 260 (conc. & dis. opn. of Kennard, J.).) Justice Kennard acknowledged the court in Payne v. Tennessee, supra, 501 U.S. 808, had overruled Booth and Gathers. However, the Payne majority did not overrule the conclusions about “circumstances of the crime” contained in those cases. Instead, the court construed the victim-impact evidence as the “harm caused by the crime.” (People v. Fierro, supra, 1 Cal.4th 173, 260 (conc.& dis. opn. of Kennard, J.).) “Rather than including victim impact as a ‘circumstanceof the crime,’ the high court in Payne expanded from two to three the number of considerations permissible for capital sentencing under the Eighth Amendment. Previously, a death sentence might be based only on the defendant’s character and background and the circumstances of the crime, but after Payneit might be basedalso on the specific harm caused bythe crime.” ((d. at p. 261 (conc. & dis. opn. of Kennard, J.).) According to Justice Kennard, it was a mistake to construe the circumstances of the crime as defined in section 190.3 factor (a) as including victim-impact evidence. This construction was overbroad and madethe factor so broad thatit included the remaining factors 168 listed in section 190.3. (People v. Fierro, supra, 1 Cal.4th 173, 260 (conc. & dis. opn. of Kennard, J.).) To avoid this vagueness problem and conform to thestill valid portions of Booth and Gathers, Justice Kennard believed the circumstances of the crime “should be understood to mean those facts or circumstances either known to the defendant when he or she committed the capital crime or properly adducedin the proof of the charges adjudicated in the guilt phase.” (/d, at p. 264 (conc. & dis. opn. of Kennard, J.).) The Louisiana Supreme Court has reached the same conclusions. The court has explained, “To the extent that such evidence reasonably showsthat the murderer knew or should have knownthatthe victim, like himself, was a unique person and that the victim had or probably had survivors, and the murderer nevertheless proceeded to commit the crime, the evidence bears on the murderer’s character traits and moral culpability, and is relevant to his character and propensities as well as to the circumstancesof the crime.” (State v. Berard (La. 1992) 608 So.2d 966, 972.) In this case, the Mary Young testimony was enormously damaging to appellant’s right to a fair penalty decision and contrary to the Eighth Amendment heightened reliability requirement. Had the court followed the guidelines proposed by Justice Kennard, the victim’s mother would not have been able to describe her months of sleeplessness, grief counseling and the debt which resulted from the therapy, loss of her in-home daycare business, and the pink heart- shaped grave marker. It cannot be doubted that victim impact testimony “is perhaps the most compelling evidence available to the State—highly 169 emotional, frequently tearful testimony coming directly from the hearts and mouths of the survivors left behind bykillings.” (Logan, Through the Past Darkly: A Survey of the Uses and Abusesof Victim Impact Evidence in Capital Trials (1999) 41 Ariz. L. Rev. 143, 178- 179.) Victim impact evidence can “overwhelm the jury with feelings of outrage towards the defendant andidentification with the victim.” (Bandes, Empathy, Narrative, and Victim Impact Statements (1996) 63 U. Chicago L. Rev. 361, 401.) The trial court committed error in allowing the victim’s mother to testify to Francia’s characteristics not apparent at the time of the incident, burial arrangements, her own grief, losses, and debts from grief therapy. (C) Ely Gassoway’s Testimony Violated the Court’s Ruling Limiting Victim-impact Evidence to Family Members. As seen above,thetrial court ruled victim-impact testimony to family members. (2 RT 238.) As friend of Mary Young, Gassoway was not a member of the victim’s family. His testimony was therefore offered in violation of the court's ruling on trial motion numberthree. (D) Appellant ls Entitled to a New Penalty Determination The trial court’s decisions in this case opened the doorto wrenching, highly emotional testimony. In his closing argument, the prosecutor used the victim-impact testimony to make melodramatic, over-the-top appeals to emotion. Anderson went through a litany of derision to demonize and dehumanize Thomas. Anderson contrasted appellant—a vile, nasty predator of women, a hyena, and a cancer—with the murder victim, whom he characterized as a 170 “virtual living saint” and a “pious, religious, beautiful person.” (66 RT 7013-7014.) Anderson was not above reminding the jury the victim wasburied “underneath that tombstone with the big pink heart down in Texas.” (66 RT 7013.) The error in admitting the heart-rending victim-impact testimony wasof federal constitutional dimension, for it prevented Thomas from receiving a fair penalty hearing and violated the Eighth Amendment heightened reliability requirement. Reversal of the penalty verdict is therefore required unless the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 24.) The trial record discloses important mitigation. At the time of the crimes, Thomas was a mere 19-year-old.° Appellant’s childhood was a nightmare of abuse, neglect, and deprivation. Even the prosecutor had to acknowledge Thomas suffered a “rotten, lousy, abusive childhood.” (66 RT 6996.) Despite the emotional victim-impact testimony and the prosecutor's efforts to exploit it in argument, the jury required somefifteen hours of deliberations over a period of five days in order to reach a decision. (14 CT 4049- 4052, 4065, 4143.) The improper victim-impact evidence was not harmless beyond a reasonable doubt. The penalty decision should be reversed. *° Anderson denied appellant's age should be considered as mitigation for at 19 and a half he was a “full blown adult.” (66 RT 6993.) He therefore urged the jury to give factor(i) “scant attention and consideration.” (66 RT 6994.) 171 XIII. LIMITIATIONS PLACED ON THE CASEIN MITIGATION VIOLATED THE EIGHTH AMENDMENT AND REQUIRES REVERSAL OF THE PENALTYDECISION. (A) ProceduralHistory (1) Evidence Code Section 402 Hearing The trial court placed restrictions on the case-in-mitigation in violation of appellant's Eighth Amendment right to introduce evidence that provides a basis for a sentence less than death. Specifically, the court prohibited the defense from introducing two keys facts about his mother, Veronica Johnson: she wasa victim of sexual abuse at the handsof her father, and had attempted to kill a stepbrother using a meat cleaver. On October 8, 1997, the court considered what defense counsel described as a Rowlandissue regarding the admissibility of appellant's personal and family background during the case-in- mitigation.** Counsel explained he would offer a social history of appellant through the testimonyof psychologist Ranald Bruce. In his view, the crux of the defense case was based upon the fact Thomas experienced substantial abuse as a child which had a lasting impact upon him. (63 RT 6622.) Dr. Bruce believed appellant’s mother, Veronica Johnson, lacked any parenting skills. These abilities are generally developed during childhood. Johnson, however, experienced a_ horrific * The name given to the issue is taken from this Court’s decision in People v. Rowland (1992) 4 Cal.4th 238 [14 Cal.Rptr.2d 172 childhood, which included physical and sexual abuse. (63 RT 6623- 6624.) Counselillustrated the importance of Johnson’s history to appellant's character and background by examples. Johnson was abandoned by her mother, who left the children with their father. Johnson,in turn, abandoned appellant. Furthermore, Johnson was sexually exploited by her father and beaten by her stepmother. (63 RT 6627.) Johnson then beat appellant. The court wasinclined to permit the general subject of Johnson’s history without going into specific incidents. (63 RT 6627.) Counsel objected that conclusions without examples—which he characterized as “some flesh on those bones’—would just be statements lacking persuasive force. (63 RT 6628.) Defense counsel pointed out Johnson was held down and beaten, then reenacted this abuse by having appellant restrained for beatings. (63 RT 6629.) On one occasion, Johnsontried to kill her brother with a meat cleaver. (/bid.) Counsel expected the testimony about Johnsoncould be presentedin five to ten minutes. (63 RT 6630.) The prosecutor had no objection to testimony Johnson was herself a victim of physical and sexual abuse. However, he did object to testimony describing specific events in her history, as he was unable to cross-examine any witnesses to such events. (63 RT 6630, 6632.) The court ruled the defense could present testimony Johnson was a victim of sexual abuse, but without going into specific examples of mistreatment. (63 RT 6633.) Specifically, the court 377, 841 P.2d 897]. 173 refused to allow testimony that Johnson had sex with her father, becamepregnant, and wanted to terminate the pregnancy but was not allowed to do so. (63 RT 6640.) The court allowed testimony that at the time she became pregnant with appellant, Johnson was selling drugs. Counsel wasalso allowed to present evidence the father, Keith Thomas, Sr., was a pimp. The court also allowed evidence Johnson did not want the baby, meaning appellant. (63 RT 6644-6645.) As for physical abuse, the court would allow the defenseto elicit specific examples of violence visited upon Johnson if she later inflicted similar abuse on appellant. (63 RT 6634, 6638.) On October9, 1997, the court and counselrevisited the family background issue. In a videotaped interview, Johnson said when she was 14-years-old she had been molested by a stepbrother. When she caught the same stepbrother attempting sexual acts with a 12-year-old stepsister, Johnson got a meat cleaver and chased him out of the house. (64 RT 6733-6734.) Defense counsel argued the incident was relevant because Johnson also attempted to kill appellant. (64 RT 6735.) The court sustained the government’s objection and excluded any testimony aboutthis incident. (64 RT 6738.) (2) Testimony About Appellant's Family Background Defense witnesses testified Johnson was a victim of sexual abuse between the ages of nine and twelve. (64 RT 6751.) Her stepmother was physically abusive and struck her with two by four pieces of lumber. (64 RT 6751-6752.) Johnson's stepbrother was also physically and emotionally abusive. (63 RT 6718.) When she wasfourteen, Johnson wassentto live with an aunt. (63 RT 6718- 174 6719.) The aunt used physical discipline on her, and Johnson ran away when she was 16-years-old after being struck with an umbrella. (63 RT 6719.) When she was 17-years-old, Johnson becamepregnantwith appellant by Keith Sr. (/bid.) The defense psychologist testified on October 10, 1997. Brucetestified that parental background is important since parenting skills are largely taken from one’s childhood. (65 RT 6868-6869.) Appellant's mother wasa victim of physical and sexual abuse. (65 RT 6869.) Bruce testified Thomas was born as a consequenceof an unwanted pregnancy. (65 RT 6870.) (B) The Eighth Amendment Right to Present Family History During the Case-in-Mitigation In Lockett v. Ohio (1978) 438 U.S. 586, 604-605 [98 S.Ct. 2954, 57 L.Ed.2d 973] a plurality of the high court held “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Since Lockett, the Eighth Amendment requires the defendantin a capital case be permitted to introduce any relevant mitigating evidence. (California v. Brown (1987) 479 U.S. 538, 541 [107 S.Ct. 837, 93 L.Ed.2d 934].) “Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.” (McKoy v. North Carolina (1990) 494 U.S. 433, 440 [110 S.Ct. 1227, 108 L.Ed.2d 369].) “Once this low threshold for relevance is met, the 175 ‘Eighth Amendment requires that the jury be able to consider and give effect to’ a capital defendant’s mitigating evidence. [Citations.]’ (Tennard v. Dretke (2004) 542 U.S. 274, 285 [124 S.Ct. 2562, 159 L.Ed.2d 384].) In Payne v. Tennessee, supra, 501 U.S. 808, 822, the court wrote, “virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances .. .” The offender's background in general (People v. Rowland, supra, 4 Cal.4th 238, 278) and childhood in particular (Eddingsv. Oklahoma, supra, 455 U.S. 104, 115) is relevant mitigation. To ensure that all relevant mitigation is developed and presented at trial, the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases impose a duty on defense counsel to conduct a “thorough and independent investigation relating to issues of both guilt and penalty.” (ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003) 31 Hofstra L. Rev. 913, 1015 [ABA Guidelines].) Penalty phase investigation of family and social history must include “physical, sexual, or emotional abuse; family history of mental illness, cognitive impairments, substance abuse, or domestic violence .. .” (/d. at p. 1022.) The high court has endorsed the ABA Guidelines as describing the benchmark against which the performance of counsel must be measured. (Wiggins v. Smith (2003) 539 U.S. 510, 524 [123 S.Ct. 2527, 156 L.Ed.2d 471].) Given these standards, myriad cases have found prejudicial error in the exclusion of family history or the failure of defense counsel to investigate and present this information. (See e.g., 176 Daniels v. Woodford (9th Cir. 2005) 428 F.3d 1181, 1205-1206 [guilt and penalty phase relief for numerousfailings by defense counsel, including failure to present the defendant’s family history of mental illness]; Boyde v. Brown (9th Cir. 2005) 404 F.3d 1159, 1176 [death sentence vacated for defense counsel's failure to develop and present mitigation, including evidence the defendant’s sister was a victim of sexual molestation and he was aware of the abuse]; Blanco v. Singletary (11th Cir. 1991) 943 F.2d 1477, 1501 [death sentence set aside for defense counsel’s failure to present mitigating evidence, including evidence the defendant’s grandmother had a history of psychosis that required hospitalization].) This Court's decisions are not entirely consistent with the Standards established by the high court. According to this Court, Standing alone, the background of the defendant’s family is not relevant. (People v. Rowland, supra, 4 Cal.4t 238, 279.) However, “the background of the defendant’s family is material if, and to the extent that, it relates to the backgrounds of defendant himself.” (/bid. see also People v. Carpenter (1999) 21 Cal.4th 1016, 1061- 1062 [90 Cal.Rptr.2d 607, 988 P.2d 531][minimallimits placedon defense expert concerning the background of capital defendant's mother permissible when expert allowed to testify to mother’s behaviorin relation to defendantl].) In this case, the court followed Rowland and excluded from evidence twocritical pieces of background information: Johnson was a victim of incest, and she had attemptedto kill a stepbrother with a meat cleaver. Exclusion of the fact appellant’s mother was a survivor of incest was egregious error. Sexual relations between a 177 parent and child are taboo, and generally regarded with horror. (Encyclopedia Britannica Online, Incest, http:/Awww.britanica.com/eb /article-9042245/incest> [as of January 6, 2007].) Revulsion at incestuous relations, along with parricide, drives once of the great plays of ancient Greece, Oedipus the King. (The Complete Greek Tragedies, VolumeII, Sophocles, Oedipus the King (Univ. of Chicago Press 1991).) In the ancient tragedy, when the doomed king’s mother and wife Jocasta learned she had unknowingly married her son and had children with him, she took her ownlife by hanging. Oedipus reacted to the disclosure of his unwitting crimes by blinding himself and going into exile from his kingdom in Thebes. (Encyclopedia Britannica Online, Sophocles, Oedipus the King, [as of January 6, 2007].) In more recent times, incest is one of the central themesof the classicfilm Chinatown (ParamountPictures 1974). Even private eye Jake Gittes—played by Jack Nicholson—is stunned when he learns a mysterious blondegirl is both the sister and daughterofhis client, Evelyn Mulwray, a result of being raped by her father when she was 15-years-old. (Wikipedia, Chinatown, [as of January 6, 2007].) These examples from popular culture illustrate the longstanding importance of the prohibition on incest. Johnson’s regrettable experience as a victim of incest was relevant family backgroundforit doubtless had aninfluence on appellant's personal history. Defense counsel told the court appellant's mother was a ‘little crazy.” (63 RT 6639.) This craziness can be glimpsed in 178 Johnson'sinappropriate views on sex, such as how she laughed at Thomasbeing a victim of sexual abuse at a very young age. (65 RT 6876.) It is certainly possible that Johnson allowed appellant to be sexually abused because of her own victimization. Because the court excluded mention of the fact Johnson wasa victim ofincest, the defense expert could not link this fact to her treatment of appellant. In a death penalty case involving sex crimes against the murder victim, the persistence of sexual exploitation in the defendant’s family across three generations is surely relevant mitigation. It was fundamental error for the court to exclude evidence appellant’s mother wasanincestvictim. Similarly, the court committed error in excluding evidence Johnson had attempted to kill her stepbrother with a meat cleaver. The district attorney objected to this incident becausein his view it was nota crime. Instead, Johnson acted in defense of a stepsister. (64 RT 6736-6738.) This argument is so preposterous it cannot pass the “straight face test.” Surely Anderson was familiar with the rule self-defense and defenseof others do not provide the actor with unfettered discretion to resort to deadly force and murderous weapons. In any event, whether or not the act was a crime is not the point. The willingness to resort to deadly force, to wield a fearsome weaponagainst a family memberis the significance of the excluded evidence. The incident suggests a propensity for extreme violence and, at the same time, a touch of the craziness described by defense counsel. Certainly the meat cleaver incident placed Johnson's admitted effort to choke appellant to death in a different, 179 more sinister light. Johnson’s statement she tried her best to kill appellant and would have succeeded if a family member had not intervened (65 RT 6877) rings true when viewed against the background of the meat cleaverincident. [t was error for the court to exclude this important information from the case-in-mitigation. (C) Appellant ls Entitled to a New Penalty Determination The exclusion of relevant mitigation is constitutional error in violation of the Eighth Amendment. Reversal of the penalty verdictis therefore required unless the error was harmless beyond a reasonable doubt. (Chapmanv.California, supra, 386 U.S. 18, 24.) As seen above, the jury required some 15 hours of deliberationsin order to arrive at a decision. The penalty case was a close contest, one in which any meaningful error could have tipped the balance against appellant. The exclusion of important elements of Johnson’s history that had a direct bearing on appellant’s life cannot be construed as harmless beyond a reasonable doubt. The penalty judgment should be reversed. 180 XIV. THE PROSECUTOR ENGAGEDIN EGREGIOUS MISCONDUCT IN CLOSING ARGUMENTTHAT TAINTED THE PENALTY PHASE WITH UNFAIRNESS AND DEPRIVED APPELLANT OF DUE PROCESSAND A RELIABLE PENALTY DETERMINATION. Assistant district attorney Anderson committed multiple acts of misconduct in closing argument. He engaged in name-calling intended to dehumanize Thomasin the eyes of the jury, made repeated outrageous statements designed to appeal to passion and prejudice, called attention to appellant’s failure to testify, and attempted to transform mitigation into aggravation. In the aggregate, the many instances of improper argumenttainted the penalty phase, denied Thomas due process (U.S. Const., 5th & 14th Amends.), and rendered the penalty decision unreliable in violation of the Eighth Amendment. (A) _ The Prosecutor Engaged in Dehumanizing Name-Calling Assistant district attorney Anderson “had a flair for labeling killers as vermin, reptiles, hyenas or worse while telling jurors the defendants were cancers bestcut from the world.” (Passionate Foe, supra.) Anderson’s“flair”forvilification of the accused as something less than human wasonfull display in this case. In his guilt phase closing argument, the prosecutor told the jury the special circumstance allegations were true “no matter which one of these depraved cowardspulled thetrigger.” (59 RT 6087.) In his penalty phase argument, Anderson ratcheted up the purple prose to a level that would be farcical in a different context. The prosecutor showered Thomaswith invective, describing him as 181 a “predator of the women of Alameda County” (66 RT 6962), a “depraved predator” (69 RT 6974), and “vile, nasty predator of women” (66 RT 7010). Anderson characterized Thomas and Glover as “predators” (69 RT 6964) and “hyenas” (66 RT 6969). He twice referred to appellant as a sociopath. (69 RT 6963, 6973.) In line with his so-called “flair” for vituperation, Anderson twice referred to appellant as a “walking cancer.” (66 RT 6970, 7016.) Just as described in the newspaperarticle on his retirement (Passionate Foe, supra) Anderson told the jury, “You cull out cancer . . . That cancer deservesthe death penalty.” (66 RT 6970.) This Court has held the government’s lawyer can vigorously argue his case and is not required to use “Chesterfieldian politeness.” (People v. Stanley (2006) 39 Cal.4th 913, 952 [47 Cal.Rptr.3d 420, 140 P.3d 736].) However, the latitude granted the government's lawyer in argument should not be confused with license. Name-calling—suchascalling the defendant an animal—is improper and constitutes misconduct. (Darden v. Wainwright (1986) °° Presumably the Court’s citation refers to Philip Dormer Stanhope, the fourth earl of Chesterfield. Stanhope was an eighteenth century British statesman, diplomat and wit who is best rememberedfor Letters to His Son and Letters to His Godson, which can be described as guides to manners, the art of pleasing, and worldly success.“Ironically, Chesterfield's painstaking advice seems to have fallen on deaf ears: his son was described by contemporaries as ‘loutish,’ and his godson was described by Fanny Burney as having ‘aslittle good breeding as any man | ever met.” (Encyclopedia Britannica Online, Philip Dormer Stanhope,4th earl of Chesterfield, [as of December 29, 2006].) 182 477 U.S. 168, 179-180 [106 S.Ct. 2464, 91 L.Ed.2d 144].) This Court does not approve of “the use of opprobrious terms in argument...” (People v. McDermott, supra, 28 Cal.4th 946, 1002.) However, the Court has also held that “such epithets are not necessarily misconduct when they are reasonably warranted by the evidence.” (/bid.) Be that as it may,it is impossible to imagine how expletives such as “hyena” and “cancer” can be “reasonably warranted by the evidence.” In Martin v. Parker (6th Cir. 1993) 11 F.3d 613, the prosecutor described the defendant as a dictator and compared him to the infamous Adolph Hitler. The Sixth Circuit found this argument to be “highly improper” and “deplorable” and,in conjunction with additional acts of misconduct, deprived the defendantof his due processright to a fair trial. (/d. at pp. 616-617; see also Bates v. Bell (6th Cir. 2005) 402 F.3d 635, 643-644 [misconduct for prosecutor in penalty phaseclosing argumentto describe defendant as a “rabid dog”].) Here, the prosecutor's vituperation was not haphazard name- calling. To the contrary, Anderson carefully selected his words so as to dehumanize Thomas, and makeit easier for the jury to vote for death. “Dehumanization is a psychological process whereby Opponents view each other as less than human and thus not deserving of moral consideration.” (Maisse, What it Means to Dehumanize, BeyondIntractability, [as of December30, 2006].) Once an individual or group is dehumanized, the way is open for “human rights violations, war crimes, and genocide.” (Ibid.) “Social psychologists have recognized that dehumanization is one of the 183 most powerful cognitive processes that can distance people from the moral implications of their actions.” (Haney, Violence and the Capital Jury: Mechanisms of Moral Disengagement and the Impulse to Condemn to Death (1997) 49 Stan. L.Rev. 1447, 1454.) Dehumanization is therefore an essential step for jurors to condemn a convicted killer to death. (/d. at p. 1451.) Anderson’s use of epithets amounted to misconduct. (B) The Prosecutor Made Repeated Appeals to Passion and Prejudice Anderson made repeated appeals to passion and prejudice rather than the facts and the law. He warnedthe jury that Thomas would always be a “walking time bomb.” (66 RT 7011.) Because he would not receive any therapy or rehabilitation in prison, an LWOP sentence would be “a Gold Visa card to continue his marauding waysin the state prison system.” (/bid.) An objection was sustained to this argument and counsel requested an admonition. The court merely said, “The jury can disregard that comment. [{] Go ahead.” (66 RT 7011.) Anderson was not chastised by the objection or the vague admonition and returned to his improper theme. He argued any misconduct by Thomas could not be punished by further incarceration. (66 RT 7012.) Hence, the only possible way to °° It should be noted that at one time six members of this Court held capital punishment “degrades and dehumanizesall who participate in its processes.” (People v. Anderson (1972) 6 Cal.3d 628, 656 [100 Cal.Rptr. 152, 493 P.2d 880].) The Anderson holding was overruled by voter approval of Article |, section 27 of the 184 penalize him would be thelossofprivileges, such as taking awayhis color television. (66 RT 7011-7012.) Defense counsel objected there was no evidence to support the argument and requested an admonition, but the objection was overruled. (/bid.) At the conclusion of his penalty argument, Anderson’s misconduct reached an apogee: “Now,I’m telling you that you 12 jurors are the conscience of this community, and | ask right now, should this community—should our community, should Alameda County show any mercy, any compassion, any sympathy for the defendant?” (66 RT 7013-7014.) Defense counsel objected and asked for an admonition. The court replied, “The jury can disregard the whole community comment.” (66 RT 7014.) Unbowed by the court’s ruling, a short time later the prosecutor stated, “Ladies and gentlemen, | implore you to send a message out that this kind of --” (66 RT 7016.) Again defense counsel objected and asked for an admonition. The court stated, “Yes. The jury can disregard that comment.” (/bid.) In argument to the jury, a prosecutor cannot make appeals to passion and prejudice. (Viereck v. United States (1943) 318 US. 236, 247-248 [63 S.Ct. 561, 87 L.Ed. 734].) In penalty phase closing argument, “a prosecutor may not make an appealto the jury thatis directed to passion or prejudice rather than to reason and to an understanding of the law.” (Cunningham v. Zant (11th Cir. 1991) 928 F.2d 1006, 1020.) In Bates v. Bell, supra 402 F.3d 635, the government's penalty California Constitution. 185 phase argument for a death sentence included comments meantto inflame the jury against the defendant. The prosecutor argued thatif the defendantreceiveda life term, he would almost certainly commit additional murdersin prison. The jury would be accomplices to such future crimes. The Sixth Circuit held the argument was misconduct and violated “the cardinal rule that a prosecutor cannot make Statements calculated to incite the passions and prejudices of the jurors.” (/d. at p. 642 [internal quotation marks omitted].) As in Bates v. Bell, supra, 402 F.3d 635, the prosecutor assured the jury that Thomas would be a menaceif he received an LWOPsentence. Even worse—without any evidence in the record to support his argument—Anderson warned the jury that prison Officials would not be able to control appellant. With an LWOP sentence, Thomas could receive no additional punishment. As a result, the only wayto influence his behavior would be to take away his color television. (66 RT 7011-7012.) Although bad faith is not required for the Court to conclude Anderson engaged in misconduct (People v. Hill, supra 17 Cal.4th 800, 822-823), the facts support an inference the prosecutor knew or should have known his argument was a caricature of the facts. Anderson was hired by the district attorney’s office in April 1971. (Passionate Foe, supra.) At the time oftrial in this matter, Anderson had 26 years of experience as a prosecutor. Furthermore, Anderson had been responsible for “lifer hearings” for prisoners serving indeterminate sentences. (/bid.) It is reasonable to infer from his experience that Anderson had some knowledge ofthe Department of Corrections, and such disciplinary measures as administrative 186 © segregation and the SHU or segregated housing units used to house high-risk prisoners. Anderson had to know his color television argument was disingenuous, misleading, and amounted to misconduct. The “conscience of the community’ remarks were a brazen attempt to rouse the jury’s passions. As the supervisorof the district attorney's “death team,” surely Anderson was familiar with such fundamental concepts as the Eighth Amendment requirement the capital sentencing decision must be based upon the facts and circumstances of the crime and the offender’s character and background. (Gregg v. Georgia, supra, 428 U.S. 153, 189.) The conscience of the community has no role in the jury’s individualized sentencing decision. To appeal to the conscience of the community was a blatant appeal to emotion in an effort to inflame the jury against appellant. No doubt respondentwill maintain the objections by defense counsel and admonitions by the court were sufficient to cure any prejudice from the improper argument. As a generalrule, the jury is presumed to obey the court’s admonitions andinstructions. (People v. Adcox (1988) 47 Cal.3d 207, 253 [253 Cal.Rptr. 55, 763 P.2d 906].) Hence, in most instances, an admonition is a sufficient remedy. However, as seen above, there are times whenit is not possible to “unring the bell.” (People v. Hill, supra, 17 Cal.4th 800, 845.) Here, the admonitions given by the court could not undo the harm to appellant. Initially, the court's admonitions were so laconic as to be inscrutable. Rather than phrase the admonitions as directions—the 187 jury shall disregard the “conscience of the community” and “send a message” arguments—the court used discretionary language: the jury can disregard the prosecutor’s arguments. (66 RT 7011, 7014, 7016.) Thus the jury was free to consider the improper appeals to passion and prejudice. Lukewarm advice cannot produce anything more than a tepid result. The nominal admonitions were not sufficient to cure the prejudice to Thomas. Furthermore, Anderson’s appeals to passion and prejudice were so inflammatory as to be immune to muted directions the jury could disregard the comments. The prosecutor maintained Thomas was a Cancer, a hyena, and a thing that could only be controlled by a death sentence. By the terms of his argument, Anderson branded appellant as a toxic hazard that would cause harm inside any prison to which he was confined. Therefore, as the conscience of the community, the jury had a duty to eradicate the cancer and,in the process, send a message crimes such as those described in the guilt phase would not be tolerated in Alameda County. Such inflammatory rhetoric cannot be cured by halfhearted admonitions. The court's directions to the jury were akin to dousing a houseafire with a single bucketful of water. The admonitions failed to cure the harm to appellant from Anderson’s outrageous argument. (C) Griffin Error A prosecutor's comment on the defendant's failure to testify violates the Fifth Amendment privilege against self-incrimination. (Griffin v. California (1965) 380 U.S. 609, 612 [85 S.Ct. 1229, 14 L.Ed.2d 106].) The reference to a defendant's failure to testify need not be direct; indirect references or implications can also violate the 188 Fifth Amendment. (See, e.g., United States v. Cotnam (7th Cir. 1996) 88 F.3d 487, 497, 500 [reversal required where prosecutor commentedthat the evidence was uncontroverted]; Williams v. Lane (7th Cir. 1987) 826 F.2d 654, 664 [prosecutor's comment that nobody contradicted only testifying witness constituted indirect commentonfailure to testify]; Lincoin v. Sunn (9th Cir. 1987) 807 F.2d 805, 810 [improper for prosecutor to make repeated references to the failure to hear from the “only person” who could explain what happened].) Here, the prosecutor argued Silvey’s in-court identification of Thomas as one of the offenders who confronted her in the driveway of her home was accurate and defense efforts to call the identification into question were not persuasive. He argued: “Think aboutthis, too. Did you ever hear analibi put forth for Keith Thomas on the evening of December 11th, 1992. Did you ever hearanalibi? [{]] Anybody come forward and say he couldn't have doneit, he was with me? [ff] Not one person came forward.” (66 RT 6989-6990.) Defense counselinterjected, “Objection. Misconduct. Griffin error.” (66 RT 6990.) The court overruled the objection, and explained the argument wasfair comment on the evidence. (/bid.) Not so. Rather than fair comment, the government's argument remindedthe jury that no defense had been presented to the Silvey incident. Thefirst four sentences of the quoted argument described a lack of alibi that can be viewed as comment on the state of the evidence. However, last sentence—‘Not one person came forward”—goes beyond a lack of alibi argument to point out “one person,” meaning Thomas,did not come forward to allege he was 189 elsewhere at the time of the Silvey incident. This is Griffin error and misconduct. The court was wrongto overrule the objection. As a consequenceof the mistaken ruling, Anderson continued in the same vein for more than an additional page of argument on the failure to present a defense to the Silvey incident. (66 RT 6990- 6991.) (D) Boyd Error Boyderror occurs when a prosecutor erroneously argues that factor (k) evidence, which can only be considered in mitigation, is in fact aggravation. (People v. Boyd (1985) 38 Cal.3d 762, 775-776 [215 Cal.Rptr. 1, 700 P.2d 782].) In this case, the prosecutor attempted to transform mitigation into aggravation in two ways. First, the prosecutor agreed appellant endured a “rotten, lousy, abusive childhood.” (66 RT 6996.) He then attempted to twist the mitigation into aggravation by maintaining the abuse did not cause Thomas to commit murder and other crimes. Instead, he wasa killer by choice. (66 RT 6999.) Of course, the defendantis not required to establish proffered mitigation was the reason for murder. (Tennard v. Dretke , supra, 542 U.S. 274, 285-286.) Here, however, the prosecutor dismissed the case-in-mitigation because of the lack of a nexus between the abuse of Thomasas a child and his crimes as an adult. Second, the government used the defense evidence ‘to maintain appellant would be a “walking time bomb forever.” (66 RT 7011.) The prosecutor quoted from the testimony of Dr. Ranald Bruce, who stated on direct examination that blocking things out “only guaranteesthat they will come back and haunt you throughout 190 yourlife.” (66 RT 7010, quoting65 RT 6882.) As described above, Anderson went on to maintain the absence of therapy and rehabilitation in prison meant appellant would pose a danger to others if sentenced to life imprisonment without the possibility of parole. (66 RT 7011-7012.) In short, the prosecutor maintained appellant’s childhood of abuse and deprivation did not cause the murder and other crimes, so it was not mitigation. The history of abuse, did, however, make Thomas a “walking time bomb” and was therefore evidence in aggravation. Hence, the case-in-mitigation was in fact a reason to vote for the death penalty. This is Boyd error. (E) The Constitutional Error Requires Reversalof the Penalty Verdict A prosecutors misconduct violates the federal constitution whenit amounts to a pattern so egregious thatit taints the trial with unfairness and makes any conviction a denial of due process. (People v. Stanley, supra, 39 Cal.4th 913, 951.) Misconduct that doesnotrise to the level of federal constitutional error amounts to misconduct under state law if it entails the use of deceptive or reprehensible methods in an effort to persuade the court or jury. (/bid.).) In this case, Anderson used disingenuous arguments, name- calling, appeals to passion and prejudice, comment on appellant's failure to take the witness stand, and attempted to convert mitigation into aggravation. If the misconduct is correctly understood as federal constitutionalerror, it was not harmless beyond a reasonable doubt, and reversalis required. (Chapmanv. California, supra, 386 191 U.S. 18, 24.) If the misconduct is viewed as state law error, reversalis still required. In People v. Brown (1988) 46 Cal.3d 432, 448 [250 Cal.Rptr. 604, 758 P.2d 1135], this Court stated penalty phaseerror which does not amount to federal constitutional error requires reversal is there is a realistic possibility the jury might have reached a different result in the absence of the error. In People v. Ashmus (1991) 54 Cal.3d 932, 983-984 [2 Cal.Rptr.2d 112, 820 P.2d 214] the Court explained this standard required reversal when there was a possibility a hypothetical reasonable juror might have reached a different decision in the absence of the error. This is a more exacting standard than the error-tolerant Watson test. (People v. Brown,supra, 46 Cal.3d 432, 447.) Here, the lengthy penalty phase deliberations demonstrate the jury viewed the sentencing decision as a close issue. But for the multiple acts of misconduct, a hypothetical reasonable juror could have readily come to a more favorable decision. The multiple acts of misconduct in penalty phase argument deprived appellant of due process (U.S. Const., 5th & 14th Amends.), a fair sentencing hearing and a reliable penalty determination (U.S. Const., 8th Amend.). The penalty decision must be reversed. 192 XV. THE PENALTY PHASE JURY INSTRUCTIONSFAILED TO INFORM THE JURY OF THE PRESUMPTION OF INNOCENCE AND ALLOCATION OF THE BURDEN OF PROOF FOR FACTOR (B) EVIDENCE, AND CONTAINED INCOMPLETE DIRECTIONS ON THE EVALUATION OF EVIDENCE. (A) Procedural History On October 14, 1997, following the conclusion of penalty phase evidence, the court and counsel discussedjury instructions. Defense counsel asked the court to modify CALJIC No. 8.85 to delete inapplicable factors (e) on whether the murder victim participated in the fatal incident or consented to the homicidal conduct, and (f) on whetheror not the crime was committed under circumstances the defendant viewed as moral justification or extenuation for his conduct. (66 RT 6954-6955: 14 CT 41 15.) The court denied the defense motion. (66 RT 6955.) At the conclusion of the review ofinstructions, defense counsel stated he no further objections or requests for instructions. (66 RT 6955-6956.) On October 15, 1997, after the prosecutor and the defense attorneys madetheirfinals argumentsto the jury, the court instructed the jury. The court read CALJIC No. 8.84.1, which provides, in relevant part, “You must determine what the facts are from the evidence received during the entire trial unless you are instructed otherwise. You must accept and follow the law that | shall state to you. Disregard all other instructions given to you in other phasesof this trial.” (66 RT 7071; 14 CT 4074.) In light of this instruction telling the jury to disregard the guilt phase instructions, thetrial court 193 had a sua sponte duty to instruct the jury on the controlling legal principles applicable to the penalty phase—including matters that had already been covered in the guilt phase instructions. Indeed, this Court has cautionedtrial judges “not to dispense with penalty phase evidentiary instructions .. .” (People v. Carter (2003) 30 Cal.4th 1166, 1222 [135 Cal.Rptr.2d 553, 70 P.3d 981].) The court gave a series of penalty phase instructions,°’ instructions on uncharged offenses introduced as_ factor (b) evidence,*® an instruction on possession of controlled substances as a prior felony conviction introduced pursuantto factor (c),°° general instructions on consideration of the evidence,” and instructions on °’ In addition to 8.84.1, the penalty instructions were CALJIC Nos. 8.84 [introductory], 8.85 [factors for consideration], 8.86 [proof of prior convictions beyond a reasonable doubt], 8.87 [other criminal activity], and 8.88 [concluding instruction]. (14 CT 4070-4074, 4094- 4095, 4112, 4114-4116, 4122-4124 .) °° The factor (b) evidence instructions were CALJIC Nos. 6.00 [attempt defined], 9.50 [simple kidnapping], 9.40 [robbery], 9.41 [fear], 16.140 [battery], 16.141 [force and violence], 16.142 [insulting words], and 16.460 [concealed weapons]. (14 CT 4101-4111.) °° CALJIC No. 12.02. *° The evidentiary instructions were CALJIC Nos. 1.01 [instructions considered as a whole], 1.02 [statements of counsel, etc.], 1.03 [independent investigation], 1.05 [use of notes], 2.11 [production ofall available evidence], 2.13 [prior statements], 2.20 [believability of witness], 2.21.1 [discrepancies in testimony], 2.21.2 [witness willfully false], 2.23 [witness felony conviction], 2.60 [defendant nottestifying], 2.80 expert witnesses, 2.81 [lay witness opinion], 2.82 [hypothetical questions], 2.91 [eyewitness identification], 2.92 [eyewitness identification factors], 3.30 [general criminal intent], and 3.31 [specific intent]. (14 CT 4075-4093, 4096- 4100.) 194 jury deliberations.” The court gave a_ special instruction admonishing the jury against considering deterrence and costs in penalty deliberations. (14 CT 4073.) Finally, the court gave a truncated version of CALJIC No. 2.90 on proof beyond a reasonable doubt. (14 CT 4100.) The instructions were inadequatefor failure to inform the jury on direct and circumstantial evidence (CALJIC Nos. 2.00 and 2.01), weighing conflicting testimony (CALJIC No. 2.22), and the presumption of innocence (CALJIC No. 2.90). Furthermore, the instructions were fatally deficient for failure to correctly advise the jury on the core concepts of proof beyond a reasonable doubt and the need for a unanimous decision consistent with the high court’s landmark decision in Cunningham v. California, supra, 2007 U.S. Lexis 1324. (B) General Rules for Jury Instructions The guiding principles for jury instructions in a criminal case are well known. The defendantin a criminal case has a fundamental right to have the jury decide every significant issue raised by the evidence. (People v. Flood (1998) 18 Cal.4th 470, 480 [76 Cal.Rptr.2d 180, 957 P.2d 869].) Hence, trial courts have a sua sponte duty to instruct the jury as to the controlling principles oflaw. (People v. Breverman (1998) 19 Cal.4th 142, 154 [77 Cal.Rptr.2d 870, 960 P.2d 1094].) The general principles of law governing the case “are closely and openly connected to the facts and that are *" The instructions on jury deliberations were CALJIC Nos. 17.40 [individual opinion required], 17.41 [jurors task], 17.45 [mannerof recording instructions], 17.47 [jury balloting], and 17.53 [admonition to alternates]. (14 CT 4117-4121.) 195 necessary for the jury’s understanding of the case.” (People v. Carter, supra, 30 Cal.4th 1166, 1219.) The test for assessing the adequacyofthe jury instructionsis to determine whetherthe trial court “fully and fairly instructed on the applicable law .. .” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111 [93 Cal.Rptr.2d 433].) Hence, a claim of instructional erroris to be judgedin light of the entire charge to the jury. (People v. Lewis (2001) 25 Cal.4th 610, 649 [106 Cal.Rptr.2d 629, 22 P.3d 392].) (C) The Court Had a Sua Sponte Duty to Instruct the Jury on Direct and Circumstantial Evidence Pursuant to CALJIC Nos. 2.00 and 2.01 A trial court is required to instruct the jury on direct and circumstantial evidence (CALJIC No. 2.00) and the sufficiency of circumstantial evidence (CALJIC No. 2.01) whenever the government's case rests substantially or entirely upon circumstantial evidence. (People v. Bloyd (1987) 43 Cal.3d 333, 351 [233 Cal.Rptr. 368, 729 P.2d 802]; People v. Yrigoyen(1955) 45 Cal.2d 46, 49 [286 P.2d 1].) — In this case, the government’s case on the murder accusation rested upon circumstantial evidence, for there were no testifying witnesses to the crime and appellant insisted in his post-arrest statements that he did not wantthe victim harmed. Appellant’s post- arrest admissions to participation in the kidnapping and rape, considered in conjunction with the remaining evidence, may have sufficed for conviction on the murder charge on theories of aiding and abetting and felony-murder. However, the district attorney's case for true findings on the special circumstances for purposesof 196 death-eligibility and factor (a) evidence for death-selection rested upon circumstantial evidence. The omitted instructions on circumstantial evidence were therefore required sua sponte in the penalty phase. (D) The Court Had a Sua Sponte Duty to Instruct the Jury on Weighing Conflicting Testimony Pursuant to CALJIC No. 2.22 The trial court failed to give the standard jury instruction on weighing conflicting testimony. This Court has imposed a sua sponte duty ontrial courts to give this instruction "in every criminal case in which conflicting testimony has been presented." (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885 [123 Cal.Rptr. 119, 538 P.2d 247]; see also People v. Snead (1993) 20 Cal.App.4th 1088, 1097 [24 Cal.Rptr.2d 922].) Here, the trial evidence was in significant conflict on key issues. For example, in the guilt phase, William Dials testified he witnessed the BARTstation kidnapping. According to the witness, Glover escorted the victim to the trunk and closedit with herinside. (52 RT 5370-5372.) Dials believed appellant resembled the lookout who stood on the sidewalk with his empty hands resting on top of the Mustang. (52 RT 5367-5370.) This testimony was inconsistent with appellants post-arrest statement to Kozicki that he went to retrieve a rifle from its hiding place and whenhereturned noticed Glover closing the Mustang’s trunk. (57 RT 5921.) As seen above, this discrepancy was important, for the prosecutor exploited the admission to argue Thomaswasthe actualkiller. (59 RT 6096.) 197 In the penalty phase, there were important inconsistencies in the testimony of Constance Silvey and Berkeley inspector Daniel Wolke contradicted one another about _ their post-lineup conversations. Wolke testified he asked Silvey about her lineup choices. (62 RT 6557.) According to Wolke, she explained the person in position seven looked morelike the thin offender than the individual in position two. (62 RT 6558.) Silvey denied having such an exchange with Wolke. (61 RT 6496-6497.) Since identification of Thomas as the thin offender was a contested issue, whether or not this conversation took place shortly after the lineup was a meaningful point in the jury’s evaluation of the identification of appellant. Given these conflicts in the evidence,the trial judge had a sua sponte duty to give CALJIC No. 2.22. (E) The Trial Court’s Modification of CALJIC No. 2.90 Was Federal Constitutional Error. The lower court gave the jury a truncated version of CALJIC No. 2.90 that defined reasonable doubt without mention of the presumption of innocence.*? In People v. Prieto (2003) 30 Cal.4th 226 [133 Cal.Rptr.2d 18, 66 P.3d 1123], the trial court’s penalty phase instructions, as in the present matter, defined reasonable ” The modified instruction provided, “The following instruction applies to proof beyond a reasonable doubtasit relates to alleged aggravating factors as set forth in these instructions. [M1] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to humanaffairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they 198 doubt without mention of the presumption of innocence and allocation of the burden of proof. This Court held the omission was not error as the rules governing consideration of other crimes evidence as aggravation are statutorily based rather than constitutionally mandated. (Id. at p. 262.) This Court’s conclusion must be reexamined in light of recent decisions by the federal Supreme Court. In Apprendi v. New Jersey, supra, 530 U.S. 466, 476-477, the high court held that any finding other than the fact of a prior conviction which can increase an offender’s punishment implicates “constitutional protections of surpassing importance,” namely the right to due process,to trial by an impartial jury, and proof beyond a reasonable doubt. These basic rights require that the truth of every accusation be subjected to trial by jury and the standard of proof beyond a reasonable doubt. (/d. at pp. 477-478.) In Ring v. Arizona, supra, 536 U.S. 584, the court held the Apprendi standards are controlling in the penalty phase of a potential capital case. The court reaffirmed that when “a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found bya jury beyond a reasonable doubt.” (/d. at p. 602.) This rule applies to the aggravating factors that can raise punishmentfrom life without parole to the death penalty. (/d. at p. 609.) As the court stated: “The rightto trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it feel an abiding conviction of the truth of the charge.” (14 CT 4100.) 199 encompassed the factfinding necessary to increase a defendant's sentence by two years [as in Apprendi], but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both.” (/bid.) In Blakely v. Washington, supra, 542 U.S. 296, the court reaffirmed the importance of the jury’s role in a democracy and the concomitant right of the accusedin a criminal case to have his fate determined by his peers rather than a judge who is a government official. In Blakely, the high court stated the right to trial by jury “is no mere procedural formality, but a fundamental reservation of powerin our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches,jury trial is meantto ensure their control in the judiciary.” (/d. at p. 306.) Blakely continued the “Apprendi revolution” by delimiting the scope of a trial court's sentencing authority under a determinate sentencing scheme. Whenexercising sentencing authority pursuant to such a statute, the maximum punishment that the court can impose is limited to the facts reflected in the jury’s verdict or admitted by the defendant. (Blakely v. Washington, supra, 542 U.S. 296, 303-304.) “In other words, the relevant ‘statutory maximum’is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional facts.” (/bid, emphasis in original.) In Blakely, the defendant admitted kidnapping his estranged spouse, and the facts acknowledgedby his guilty plea supported a maximum sentence of 53 months. Thetrial court, however, found an additional fact—the kidnapping was done with deliberate 200 cruelty—and imposed a sentence of 90 months. The defendant objected and the court conducted a hearing with testimony from the defendant, the victim, and others. At the conclusion of the hearing, the judge made 32 findings of fact, confirmed the finding of deliberate cruelty, and stood by the 90 months term of imprisonment. The high court held the judicial fact-finding violated the Sixth Amendmentrightto trial by jury: “The Framers wound not have thoughtit too much to demandthat, before depriving a man of three more yearsof his liberty, the State should suffer the modest inconvenience of submitting its accusation to ‘the unanimous suffrage of tweive of his equals and neighbors,’ [citation] rather than a lone employeeof the State.” (Blakely v. Washington, supra, 542 U.S. 296, 313-314.) The government argued in Blakely that there was no Apprendi violation because the defendant’s 90-month sentence was below the maximum punishment of 10 years, the “statutory maximum” punishmentfor class B felonies. (/d. at p. 303.) The high court rejected that argument by holding “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words,the relevant ‘Statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishmentthat the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ [citation], and the judge exceeds his proper authority.” 201 (Blakely v. Washington, supra, 542 U.S. 296, 303-304, emphasis in Original.) The court concluded: “Finally, the State tries to distinguish Apprendi and Ring by pointing out that the enumerated grounds for departure in its regime areillustrative rather than exhaustive. This distinction is immaterial. Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact. (Fn. omitted.)’ (Blakely v. Washington, supra, 542 U.S. 296, 305, emphasis in Original.) The high court’s most recent decision on point is Cunningham v. California, supra, 2007 U.S. Lexis 1324. In Cunningham, the court considered the application of Apprendi to California’s Determinate Sentencing Law [DSL]. In the process, the court examined this Court’s decision in People v. Black, supra, 35 Cal.4th 1238, and found its reasoning to be mistaken and inconsistent with the requirements of the federal Constitution. The high court affirmed the basic premise of Apprendi andits progeny: “This Court has repeatedly held that under the Sixth Amendment, any fact that exposes a defendantto a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v. California, supra, slip opinion at p. 8.) As applied to the DSL with its familiar triad system of lower term, 202 middle term, and upper term, the issue posed on Cunningham was whether the relevant statutory maximum to which a judge could sentence a defendant without additional fact finding was the upper or middle term. In People v. Black, supra, 35 Cal.4th 1238, 1254, this Court held the statutory maximum was the upper term. The high court disapproved this conclusion, and held the relevant maximum to which an offender could be sentenced without additional fact finding in compliance with Apprendi and its progeny was the middle term. According to the court, “Contrary to the Black court’s holding, our decisions from Apprendi to Booker point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham v. California, supra, slip opinion at p. 21.) As seen above, in People v. Prieto, supra, 30 Cal.4th 226, 262,the trial court instructed the jury that it could consider evidence of defendant’s prior criminal activity, but only if the prosecution established that defendant committed the alleged criminal activity beyond a reasonable doubt. Thetrial court, however, did notinstruct the jury on the presumption of innocence. The defendant in Prieto argued on appeal that the failure to instruct the jury on the presumption of innocence was federal constitutional error and this Court’s prior decisions to the contrary had been undermined by Ring v. Arizona, supra, 536 U.S. 584. (People v. Prieto, supra, 30 Cal.4th 226, 262.) This Court was not 203 persuaded, and explained that any finding of aggravation in the penalty phase did not increase the penalty for the crime beyond the Statutory maximum. Accordingly, Ring did not impose any new constitutional requirements, and prior decisions rejecting any need to instruct on the presumption of innocence did not need to be reconsidered. (/d. at p. 263.) The Court’s reasoningis mistaken. In Prieto, the Court stated that once a defendant is convicted of first-degree murder and at least one special circumstance is found true, “the prescribed statutory maximum forthe offense’is eitherlife without the possibility of parole or death. (People v. Prieto, supra, 30 Cal.4th 226, 263.) The lynchpin to this Court’s position that Apprendi and its progeny does not call the state’s death penalty scheme into question is the Court’s definition of “the prescribed Statutory maximum for the offense” of capital murder. Hence, the applicability of Apprendi to California capital cases turns on whether or not this Court’s definition of the maximum statutory penalty is consistent with the high court’s cases. The Court's definition of the statutory maximum for a capital case defendant in Prieto is wrong in exactly the same way the Court was wrong in defining the statutory maximum in People v. Black, Supra, 35 Cal.4th 1238. The decision in Black was mistaken for equating the statutory maximum for Apprendi purposes with the upper term, which can only be imposed after additional facts have been found. Similarly, in Prieto, the Court confused the statutory maximum within the meaning of Apprendi with the maximum penalty which can be imposed after factors in aggravation are found true and further found to substantially outweighthe factors in mitigation. 204 In Blakely, the court defined the “statutory maximum” as denoting the maximum punishment a judge can select based on the convictions alone: “the ‘statutory maximum’ for Apprendi purposesis the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant ‘statutory maximum’is not the maximum sentence a judge may imposeafterfinding additional facts, but the maximum he may impose without any additional findings.” (Blakely v. Washington, supra, 542 U.S. 296, 303-304, emphasisin original.) Under the 1978 death penalty law, a conviction for first-degree murder with a true finding on at least one special circumstance renders the defendant death-eligible. As this Court has explained (People v. Green, supra, 27 Cal.3d 1, 61), the special circumstances perform the narrowing function required by the Eighth Amendmentto rationally define the class and limit the numberof killers eligible for the death penalty (McCleskey v. Kemp (1987) 481 U.S. 279, 305 [107 S.Ct. 1756, 95 L.Ed.2d 262]). However, before a jury can select a sentence of death, three additional findings must be made. First, each juror must determine whether there are any factors in aggravation. Second, the jury is required to decide if there are any factors in mitigation. Third, jurors must decide whetherthe factors in aggravation substantially outweigh any factors in mitigation. (§ 190.3.) Without these additional findings, the “statutory maximum” punishment for special circumstance murderis life imprisonment without the possibility of parole. (/bid.) Hence, the definition of “statutory maximum” used by this Court in Prieto, just like the 205 definition of statutory maximum used by the Court in Black, is inaccurate and inconsistent with Apprendi andits progeny. The Prieto definition of “statutory maximum” is wrong because it merges two Eighth Amendment requirements for a constitutional death penalty law. To satisfy the federal Constitution, a state’s death penalty scheme must perform two functions. First, the law “must genuinely narrow the class of personseligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” (Zant v. Stephens (1983) 462 U.S. 862, 877 [103 S.Ct. 2733, 77 L.Ed.2d 235].) Second, the death-selection decision must take into account the circumstances of the offense along with the character and background of the defendant. (Lockett v. Ohio, supra, 438 U.S. 586, 604-605.) In a case where the defendant has been sentenced to death, the controlling statutory maximum is not, as the Court’s decision in Prieto would haveit, established by a conviction for first-degree murder with a true finding on at least one special circumstance. Instead, the statutory maximum is based upon the additional findings required by section 190.3, which are madeby the jury during the penalty phase. Hence, consistent with Apprendi Ring, Blakely, and Cunningham, appellant was entitled to penalty phaseinstructions on the presumption of innocence and requiring a unanimous finding of aggravation by proof beyond a reasonable doubt. (Blakely v. Washington, supra, 542 U.S. 296, 303-304; see also Ring v. Arizona, supra, 536 U.S. 584 [holding that because Arizona’s enumerated aggravating factors operate as the functional 206 equivalent of elements of the offense, the Sixth Amendment requires that they be found by a jury].) Becausethe trier of fact in California cannot impose a death sentence based only on a conviction for first-degree murder with a true finding on one or more special circumstances, the decisions in Apprendi, Ring, Blakely and Cunningham impose federal constitutional requirements that are not satisfied by California's penalty phase proceedings. Thetrial court violated appellant's federal constitutional rights by instructing his penalty jury with CALJIC No. 8.84.1 to disregard all prior instructions and not reinstructing on the presumption of innocence. (F) Failure to Delete Inapplicable Factors From CALJIC No. 8.85 As seen above, defense counsel requested the court delete factors (e) and (f) from CALJIC No. 8.85 as inapposite to the evidencein this case. The court overruled the motion. (66 RT 6954- 6955.) In People v. Marshall (1990) 50 Cal.3d 907, 933 [269 Cal.Rptr. 269, 790 P.2d 676], this Court recognized a trial court is not obligated by law to instruct on all statutory factors sua sponte, but held that the “better practice”is to instruct on all statutory penalty factors while directing the jury to be guided by those applicable on the record. The high court later held that in order “to comply with due processstates courts need givejury instructions in capital cases only if the evidence so warrants.” (Delo v. Lashley (1993) 507 U.S. 272, 275 [113 S.Ct. 1222, 122 L.Ed.2d 620].) Following Delo, this Court has continued to hold it is proper to instruct the jury on 207 inapplicable aggravating and mitigating factors. (People v. Webb (1993) 6 Cal.4th 494, 532-533 [24 Cal.Rptr.2d 779, 862 P.23d 779].) The failure to delete inapplicable factors from CALJIC No. 8.85 presents a risk the jury can be misled into considering the absence of mitigation as aggravation. This danger is heightened by the failure to designate factors as aggravating or mitigating. Jury instructions that are cluttered with irrelevant factors violate the right to an individualized sentencing determination based only on the offender’s background and record and the particular circumstances of the crime.in violation of the Eighth and Fourteenth Amendments. (G) The Jury Instruction Errors Requires Reversal of the Death Sentence. A review of the penalty phase instructions as a whole confirms the jury did not receiveinstructions defining direct and circumstantial evidence, the sufficiency of circumstantial evidence to establish the necessary mental state for any of the uncharged offenses alleged underfactor (b), or the evaluation of conflicting testimony. Critically, the jury was not informed appellant was presumed to be innocent of the offenses alleged as factor (b) crimes. Finally, the jury was not advised the government had the burden of proving guilt beyond a reasonable doubt. Instead, the jury was instructed pursuant to CALJIC No. 8.87 that uncharged acts could be considered as aggravation by any juror who was “satisfied beyond a reasonable doubt that the defendant did in fact commit the criminal acts.” (14 CT 4094.) The failure to instruct on the presumption of innocence and allocation of the burden of proof was structural error that requires 208 reversal of the judgment without regard to proof of prejudice. (Sullivan v. Louisiana, supra, 508 U.S. 275, 278.) This conclusion is irrefutable following Cunningham v. California, supra, 2007 U.S. Lexis 1324. In the alternative, the failure to properly instruct the jury was constitutional error as the instructions did not include the presumption of innocenceorallocation of the burden of proof, both of which are elements of due process. (/n re Winship (1970) 397 _ULS. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368].) As seen above, constitutional errors in this matter cannot be construed as harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 24.) The penalty judgment should be reversed. 209 XVI. THE PENALTY JUDGMENT SHOULD BE REVERSED FOR CUMULATIVE ERROR. As with the guilt phase errors, the cumulative effect of the penalty trial errors requires reversal of the penalty even if no single error does so when considered in isolation. (Taylor v. Kentucky, supra, 436 U.S. 478, 488, fn. 15.) Further, many of the guilt phase errors had a significant impact on the penalty determination and the impact of these antecedent guilt phase errors must also be considered in evaluating the prejudice resulting from penalty phase errors. After all, the jury is required to consider all guilt phase evidence is arriving at a penalty phase sentencing decision. (§190.4, subd. (d).) Because it is not possible to conclude that the guilt phase errors did not affect the sentencing decision, the death penalty imposed in this case fails to satisfy the Eighth Amendment reliability requirement. (Caldwell v. Mississippi (1985) 472 U.S. 320, 341 [105 S.Ct. 2633, 86 L.Ed.2d 231].) Finally, the combination of guilt and penalty phase errors requires reversal of the judgment of death, for the sentence was imposedin violation of appellant’s Fifth, Sixth, Eighth, and Fourteenth Amendmentrights. 210 XVII. TRIAL COURT FAILED TO CONSIDER MITIGATING CIRCUMSTANCESIN RULING ON THE MOTION TO MODIFY THE DEATH SENTENCETO LIFE WITHOUT THE POSSIBILITY OF PAROLE, AND THEREFORE DENIED APPELLANT A STATE STATUTORYRIGHT IN VIOLATION OF DUE PROCESS (A) Procedural History On January 9, 1998, defense counselfiled a motion to modify the sentence from death tolife imprisonment without the possibility | of parole. (14 CT 4155.) As seen above, the motion included an argument based upon intracase proportionality given the life without parole sentence imposed upon Glover, who wasthe leading actor andlikely shooter. On January 16, 1998, the court presided over a hearing on the motion. Defense counsel reminded the court he had been prohibited from mentioning Glover's sentence during the penalty phase. (67 RT 7119.) Counsel argued the court should consider appellant's role in the offense, for Glover was in charge and Thomas was not the actualkiller. (67 RT 7125-7126.) Defense counsel reminded the court that appellant turned himself in and confessed to the crimes other than murder. (67 RT 7127-7128.) Thomas wasonly 19-years- old at the time of the crimes. Counsel reminded the court that appellant grew up in “swamp” conditions with a crazy mother. (67 RT 7128.) In his view, the evidence simply did not merit a-death sentence. (/bid.) In ruling on the motion, the trial court found that as to the guilt phase, there was proof beyond a reasonable doubt that appellant 211 . Was guilty of first-degree murder and the four special circumstances were true beyond a reasonable doubt. (67 RT 7136.) As for the penalty phase, the court found as aggravation “that the circumstances surrounding the first-degree murder of Francia C. Young were particularly cruel, savage, and cold blooded.”** The court was also satisfied the factor (b) other crimes were shown beyond a reasonable doubt. (/bid.) | Concerning the defense case-in-mitigation, the court found ‘there were no circumstances presented which extenuate the gravity of the crime, whether or not it be a legal excuse.” (67 RT 7136- 7137.) The court repeated the circumstances of appellant’s childhood, his background, and upbringing did not provide “a moral justification or an extenuating factor for his conduct.” (67 RT 7137.) As for the fact Thomas was 19-years-old at the time of the crimes, the court concluded it was not a mitigating factor. (/bid.) The court concluded the factors in aggravation were so substantial when compared to the mitigation that death was the appropriate punishment. (67 RT 7138.) Accordingly, the court denied the automatic motion to modify the punishment from death to life imprisonmentwithout the possibility of parole. (/bid.) The ruling was an abuseof discretion. *8 The court's language recalls the special circumstance for a murder that is “especially heinous, atrocious, or cruel, manifesting exceptional depravity” (§ 190.2, subd. (a)(14).) Of course, this special was long age found to be unconstitutionally vague. (People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 803 [183 Cal.Rptr. 212 (B) The Decision Was an AbuseofDiscretion Penal Code section 190.4, subdivision (e) requires an automatic motion for modification of any death verdict. In ruling on the motion, thetrial judge “shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whetherthe jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to the law or the evidence presented. The judge shall State on the record the reasonsfor his findings.” (§190.4, subd. (e).) On appeal, this Court subjects the trial court’s ruling to independent review,although this review is limited to reviewing the trial court's determination after independently reviewing and construing the record. (People v. Samayoa (1997) 15 Cal.4th 795, 859 [64 Cal.Rptr.2d 400].) The trial court's decision on the motion to modify was unreasonable and failed to conform to the requirements of section 190.4, subdivision (e). “Under that statute, the trial court is required to ‘independently reweigh the evidence of aggravating and mitigating circumstances and then to determine whether, in the judge’s independent judgment, the weight of the evidence supports the jury’s verdict.’ [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1039 [108 Cal.Rptr.2d 291, 25 P.3d 519].) From the court’s statement of the decision, it is apparent the court failed to consider the case-in-mitigation because the evidence 800, 647 P.2d 76].) 213 did not extenuate the gravity of the crimes. (67 RT 1137-7138.) As a result, the court did not reweigh the aggravating and mitigating circumstances as required by the statute. In explaining his evaluation of the case-in-mitigation, the court used the word “extenuate”five times. (/bid.) On two occasions, the term was‘used in the phrase “extenuate the gravity of the crime.” (67 RT 1137.) The court also used “extenuates” with the same “gravity of the crime” phrase. (67 RT 7138.) The court employed “extenuate” in the slightly longer phrase “extenuate the seriousness and gravity of the crime.” (67 RT 7137) Finally, the court referred to appellant’s background as not being an “extenuating factor for his conduct.” (67 RT 7137.) To extenuate means to “make” (guilt or an offense) seem less serious or more forgivable: there were extenuating circumstances that caused me to say the things | did.” (The New Oxford American Dictionary (2001) p. 601, col. 2.) A fair reading of the court’s explanation, then, shows the judge failed to attribute any significance to the case-in-mitigation because appellant’s childhood and personal background did not have a causal connection to the murder. However, mitigation does not have to extenuate a crimein the sense of being a causalfactor. (Tennard v. Dretke, supra, 542 U.S. 274, 285-286.) Moreover,it is settled lawthat a childhood of © youth and deprivation is a powerful factor in mitigating. (Penry v. Lynaugh, supra, 492 U.S. 302, 328.) It was errorfor the trial court to dismiss the mitigation due to the lack of a nexus to the murder. The court also concluded appellant’s age wasnota factorin mitigation. (67 RT 7137.) This finding is simply wrong. Youth is 214 indeed a mitigating circumstance. (Johnson v. Texas, supra, 509 U.S. 350, 367.) It is such a powerful factor in mitigation that the Eighth Amendmentprohibits imposition of the death penalty on a young person who committed murder before the age of 18. (Roper v. Simmons(2005) 543 U.S. 551, 568 [125 S.Ct. 1183, 161 L.Ed.2d 1].) Here, appellant was 19-years-old at the time of the murder. Plainly, his age wasa factor in mitigation and the court was wrongto fail to consider youth as a circumstancein mitigation. Thetrial court's failure to follow state law and determine the propriety of the death verdict by a reweighing of the aggravation and mitigation deprived appellant of a liberty interest protected by the Fourteenth Amendment. (Hicks v. Oklahoma (1980) 447 U.S. 343, 347 [100 S.Ct. 2227, 65 L.Ed.2d 175].) Reversal and remandfor a new modification hearing is required. (People v. Sheldon (1989) 48 Cal.3d 935, 963 [258 Cal.Rptr. 242, 771 P.2d 1330].) 215 SYSTEMIC ERROR Many features of California's capital sentencing scheme, alone or in combination with each other, violate the United States Constitution. Because challenges to most of these features have been rejected by this Court, appellant presents these arguments here in an abbreviated fashion sufficient to alert the Court to the nature of each claim andits federal constitutional grounds, and to provide a basis for the Court’s reconsideration of each claim in the context of California’s entire death penalty system. Following Cunningham v. California, supra, 2007 U.S. Lexis 1324, the Court has no choice but to reassessits previous decisions on challenges to the State's death penalty law. To date the Court has considered each of the defects identified below in isolation, without considering their cumulative impact or addressing the functioning of California’s capital sentencing scheme as a whole. This analytic approach is constitutionally defective. As the U.S. Supreme Court has stated, “[t]he constitutionality of a State’s death penalty system turns on review of that system in context.” (Kansas v. Marsh (2006) _ _—sUS. ___ [126 S.Ct. 2516, 2527, fn. 6, 165 L.Ed.2d 429]; see also Pulley v. Harris, supra, 465 U.S. 37, 51.) When viewed as a whole, California’s sentencing schemeis so broadin its definitions of whois eligible for death and so lacking in procedural safeguardsthatit fails to provide a meaningful or reliable basis for selecting the relatively few offenders subjected to capital punishment. California’s death penalty statute is so broad that Virtually every murderer is death-eligible. It then allows any conceivable 216 circumstanceof a crimeto justify the imposition of the death penalty. Judicial interpretations have placed the entire burden of narrowing the class offirst-degree murderers to those most deserving of death on Penal Code section 190.2, the “special circumstances” statute. However, section was specifically crafted to make every murderer eligible for the death penalty. There are no safeguards in California during the penalty phase that would enhance the reliability of the trial’s outcome. Instead, jurors who are notinstructed on any burden of proof, and who may not even agree with each other make findings necessary for imposition of the death penalty. Paradoxically, the fact that “death is different” (Woodson v. North Carolina, supra, 428 U.S. 280, 305) has been stood onits head to mean that procedural protections taken for grantedin trials for lesser criminal offenses are suspended when the question is a finding necessary for imposition of death. The result is truly a “wanton and freakish” (Furman v. Georgia, supra, 408 U.S. 238, 310 (conc. opn. of Stewart, J.)) system that randomly chooses among the thousands of murderersin California a few victims of the ultimate sanction. 217 XVIII. APPELLANT’S DEATH SENTENCEIS INVALID BECAUSE PENAL CODE SECTION190.2 IS IMPERMISSIBLY BROAD. To avoid the Eighth Amendment's proscription against cruel and unusual punishment, a death penalty law must provide a “meaningful basis for distinguishing the few cases in which the death penalty is imposed from the manycasesin whichit is not.” (Furman v. Georgia, supra, 408 U.S. 238, 313 (conc. opn. of White, J.).) In order to meet this constitutional mandate, the states must genuinely narrow, by rational and objective criteria, the class of murderers eligible for the death penalty. According to this Court, this narrowing function is accomplished by the “special circumstances” set out in section 190.2. (People v. Bacigalupo, supra, 1 Cal.4th 103, 148.) The purpose of the 1978 death penalty law was not to narrow those eligible for the death penalty but to make all murderers death- eligible. (Shatz & Rivkin, The California Death Penalty Scheme: Requiem for Furman? (1997) 72 N.Y.U.L. Rev. 1283, 1310.) To achieve an all-encompassing death penalty scheme, the Briggs Initiative expanded the numberof special circumstances from 12 to 26, broadenedpreexisting specials such as contract killing, loosened mental state requirements, and expanded accompliceliability. (/d. at pp. 1310-1313.) At the time of the offenses in this case, December 1992, section 190.2 contained 29 special circumstances. At the present time, the numberof special circumstances has grownto 34. These special circumstances are so numerous and so broad in definition as to encompassvirtually every first-degree murder. 218 Almost all felony-murders are now special circumstance killing. These cases include accidental and unforeseeable deaths, as well as acts committed in a panic or under the dominion of a mental breakdown, or acts committed by others. (People v. Dillon, supra, 34 Cal.3d 441, 477.) The reach of section 190.2 has been extendedto virtually all intentional murders by this Court’s construction of the lying-in-wait special circumstance, which the Court has construed so broadly as to encompassvirtually all such murders. (See People v. Hillhouse (2002) 27 Cail.4th 469, 500-501, 512-515 [117 Cal.Rptr.2d 245, 40 P.3d 754].) Indeed, membersof this Court have warnedthe lying-in- wait special circumstance has been construed so broadly as to be unconstitutional (People v. Morales (1989) 48 Cal.3d 520, 574 [257 Cal.Rptr. 64, 770 P.2d 244] (conc. opn. of Mosk, J.)) or so thatit may no longer serve the narrowing function required by the Eighth Amendment (People v. Ceja (1993) 4 Cal.4th 1134, 1147 [17 Cal.Rptr.2d 375, 847 P.2d 55] (conc. opn. of Kennard, J.)). Considered together, the 34 special circumstances, the Court’s interpretation of felony-murder, and the lying-in-wait special circumstance section 190.2 now comesperilously close to achieving its goal of making every murderereligible for death. In other words, the Eighth Amendmentrequirement that death penalty laws narrow the class ofkillers eligible for capital punishment is not satisfied by Penal Code section 190.2. Hence, the state’s death penalty law violates the federal Constitution. 219 XIX. APPELLANT’S DEATH SENTENCEIS INVALID BECAUSE PENAL CODE SECTION 190.3, FACTOR(a) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS. Section 190.3(a) violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution in that it has been applied in such a wanton and freakish manner that almost all features of every murder, even features squarely at odds with features deemed supportive of death sentences in other cases, have been characterized by prosecutors as “aggravating” within the statute’s meaning. Factor(a), listed in section 190.3, directs the jury to consider in aggravation the “circumstances of the crime.” This Court has neverapplied a limiting construction to factor (a) other than to agree that an aggravating factor based on the “circumstances of the crime” must be some fact beyond the elements of the crimeitself. (See e.g., People v. Adcox, supra, 47 Cal.3d 207, 270.) The Court has allowed extraordinary expansionsof factor (a), approving reliance on the circumstance of the crime aggravating factor because the defendant had a "hatred of religion" (People v. Nicolaus (1991) 54 Cal.3d 551, 581-582 [286 Cal.Rptr. 628, 817 P.2d 893]), or because three weeksafter the crime defendant sought to conceal evidence (People v. Walker (1988) 47 Cal.3d 605, 639, fn. 10 [253 Cal.Rptr. 863, 765 P.2d 70], or threatened witnesses after his arrest (People v. Hardy (1992) 2 Cal.4th 86, 204 [5 Cal.Rptr.2d 796, 825 P.2d 220 781]), or disposedofthe victim's body in a mannerthat precludedits recovery (People v. Bittaker (1989) 48 Cal.3d 1046, 1110, fn. 35 [259 Cal.Rptr. 630, 774 P.2d 659]). It also is the basis for admitting evidence underthe rubric of “victim impact” that is no more than an inflammatory presentation by the victim’s relatives. (See, e.g., People v. Robinson (2005) 37 Cal.4th 592, 644-652 [36 Cal.Rptr.3d 760, 124 P.3d 363].) The purpose of section 190.3 is to inform the jury of what - factors it should consider in assessing the appropriate penalty. Although factor (a) has survived a facial Eighth Amendment challenge (Tuilaepa v. California (1994) 512 U.S. 967, 976 [114 S.Ct. 2630, 129 L.Ed.2d 750)), it has been used in ways so arbitrary and contradictory as to violate both the federal guarantee of due process and the Eighth Amendment. Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstance of the crime, even those that, from case to case, reflect starkly opposite circumstances. (Tuilaepa v. California, supra, 512 U.S 967, 986-990 (dis. opn. of Blackmun, J.).) Factor (a) is used to embrace facts that are inevitably present in every homicide. (Ibid.) Asa consequence, from case to case, prosecutors have been permitted to turn entirely opposite facts, or facts that are inevitably presentin every homicide, into aggravating factors that the jury is urged to weigh on death’s side ofthe scale. In practice, section 190.3’s broad “circumstancesof the crime” provision licenses indiscriminate imposition of the death penalty. This is contrary to the narrowing requirement of the Eighth 221 Amendment. In Maynard v. Cartwright (1988) 486 U.S. 356, 363 [108 S.Ct. 1853, 100 L.Ed.2d 372], the high court explained why Georgia’s “outrageously or wantonly vile, horrible or inhuman” aggravating circumstancefailed to narrow the class of death-eligible killers: the circumstance stated nothing more than “that a particular set of facts surrounding a murder, however shocking they might be, were enoughin themselves, and without some narrowingprinciples to apply to those facts, to warrant the imposition ‘of the death penalty.” (/d. at p. 363.) The circumstances of the crime factor in aggravation, like the “outrageously or wantonly vile, horrible or inhuman” discussed in Maynard, is applied in the trial courts and interpreted by this Court so that the facts of any murder can be construed as an “aggravating circumstance.” Factor (a) is therefore devoid of any meaning, fails to narrow the class of death-eligible offenders, and allows the imposition of arbitrary and capricious death sentences,in violation of the federal Constitution. 222 XX. CALIFORNIA’S DEATH PENALTY STATUTE DEPRIVES DEFENDANTS OF THE RIGHT TO A UNANIMOUS JURY DETERMINATION OF EACH FACTUAL PREREQUISITE TO A SENTENCE OF DEATH AND THEREFOREVIOLATES THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS. As seen above, California’s death penalty law does nothing to narrow the pool of murderers to those most deserving of death in either its “special circumstances” statute (§ 190.2) or in its sentencing guidelines (§ 190.3). Furthermore, there are none of the safeguards commonto other death penalty sentencing schemes to guard against the arbitrary imposition of death. Juries do not have to make written findings or achieve unanimity as to factors in aggravation. They do not haveto find beyond a reasonable doubt that aggravating circumstances are proved, that they outweigh the mitigating circumstances, and that death is the appropriate penalty. In fact, except as to the existence of othercriminal activity and prior convictions, juries are not instructed on any burdenof proof atall. Not only is intercase proportionality review not required; it is not permitted. Under the rationale that a decision to impose death is “moral and normative” (People v. Demetrulias (2006) 39 Cal.4th 1, 38 [45 Cal.Rptr.3d 407, 137 P.3d 229]), the fundamental components of reasoned decision-making that apply to all other parts of the law have been banished from the entire process of making the most consequential decision a juror can make—whether or not to condemn another human being to death. None of these 223 failings are defensible following the high court’s decision in Cunningham v. California, supra, 2007 U.S. Lexis 1324. (A) The Death Verdict in This Case Was Not Premised on Unanimous Jury Findings Made Beyond a Reasonable Doubt Exceptasto prior criminality, appellant’s jury was not told that it had to find any aggravating factor true beyond a reasonable doubt. The jurors were not told that they needed to agree at all on the presence of any particular aggravating factor, or that they had tofind beyond a reasonable doubt that aggravating factors outweighed mitigating factors before determining whether or not to impose a death sentence. All this was consistent with this Court’s previous interpretations of California’s death penalty law. (See e.g., People v. Fairbank (1997) 16 Cal.4th 1223, 1255 [69 Cal.Rptr.2d 784, 947 P.2d 1321].) The Court's views on capital punishment have been overtaken by the high court’s decisions in Apprendi v. New Jersey, supra, 530 U.S. 466, Ring v. Arizona, supra, 536 U.S. 584, Blakely v. Washington, supra, 542 U.S. 296, and Cunningham v. California, supra, 2007 U.S. Lexis 1324. As seen above, in Apprendi, the court held that a state may not impose a sentence greater than that authorized by the jury’s simple verdict of guilt unless the facts supporting an increased sentence (other than a prior conviction) are also submitted to the jury -and proved beyond a reasonable doubt. (Apprendi v. New Jersey, supra, 530 U.S. 466, 478.) The Sixth Amendment and the due process clause of the Fourteenth Amendment compelled this result. (/d. at pp. 477-478.) 224 In Ring, the high court struck down Arizona’s death penalty scheme, which authorized a judgesitting without a jury to sentence a defendant to death if there was at least one aggravating circumstance and no mitigating circumstancessufficiently substantial to call for leniency. (Ring v. Arizona, supra, 536 U.S. 584, 593.) The court acknowledged that in Walton v. Arizona (1990) 497 U.S. 639 [110 S.Ct. 3047, 111 L.Ed.2d 511] it had held that aggravating factors were sentencing considerations guiding the choice between life and death rather than elements of the offense. (Ring v. Arizona, supra, 536 U.S. 584, 598.) The court found that in light of Apprendi, the Walton holding was an anachronism. Any factual finding which increases the possible penalty is the functional equivalent of an element of the offense, regardless of when it must be found or what label the state choosesto attach to it. Therefore, the finding must be madeby a jury based upon proof beyond a reasonable doubt. (/d. at p. 609.) As explained above, in Blakely the high court considered the effect of Apprendi and Ring in a case where the sentencing judge wasallowed to impose an “exceptional” sentence outside the normal range uponthefinding of “substantial and compelling reasons.” The Washington statute listed illustrative factors that included both aggravating and mitigating circumstances; one of the former was whether the defendant’s conduct manifested “deliberate cruelty” to the victim. The court held this procedure wasinvalid becauseit did not comply with the right to a jury trial. (Blakely v. Washington, supra, 542 U.S. 296, 313.) 225 The high court reaffirmed that the governing rule since _Apprendiis that other than a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to the jury and found beyond a reasonable doubt. Critically, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may imposeafter finding additional facts, but the maximum he may impose without any additional findings.” (Blakely v. Washington, supra, 542 U.S. 296, 303-304.) In Cunningham v. California, supra, 2007 U.S. Lexis 1324, the high court disapproved this Court’s definition of the statutory maximum within the meaning of the DSL. In People v. Black, supra, 35 Cal.4th 1238, 1254, this Court held the statutory maximum was the upper term. The high court disapproved this conclusion, and held the relevant maximum to which an offender could be sentenced without additional fact finding in compliance with Apprendi andits progeny was the middle term. According to the court, “Contrary to the Black court’s holding, our decisions from Apprendi to Booker point to the middie term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham v. California, supra, slip opinion at p. 21.) The Apprendi line of authority has been consistently reaffirmed by the high court. In United States v. Booker, supra, 543 U.S. 220, the nine justices split into different majorities. Justice Stevens, writing for a 5-4 majority, found the federal sentencing 226 guidelines were unconstitutional because they set mandatory sentences based on judicial findings made by a preponderance of the evidence. Booker reiterates the Sixth and Fourteenth Amendment requirement that “[aJny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty ora jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”(/d. at p. 244.) (1) Any Jury Finding Necessary for the Imposition of Death Must Be Found True Beyond a Reasonable Doubt. California law does not require use of the reasonable doubt standard during the penalty phase other than as to proof of prior crimes underfactor (b). Even in that context the finding need not be unanimous. (People v. Hawthorne (1992) 4 Cal.4th 43, 79 [14 Cal.Rptr.2d 133, 841 P.2d 118].) As the death-selection phase of trial, California law does require the jury to make findings before the death penalty can be imposed. Section 190.3 requires the trier of fact to find that at least one aggravating factor exists and the factor or factors substantially outweigh any andall mitigating factors. As set forth in CALJIC No. 8.88, which at the time of trial was California's “principal sentencing instruction” (People v. Farnam (2002) 28 Cal.4th 107, 192 [121 Cal.Rptr.2d 106, 47 P.3d 988)]), which was read to appellant's jury (14 CT 4122), “an aggravating factor is any fact, condition or event attending the commission of a crime which increasesits guilt or enormity, or addsto its injurious consequences which is above and beyond the elements of the crime itself.” 227 Thus, before the process of weighing aggravating factors against mitigating factors can begin, the jury mustfind the presence of one or more aggravating factors. And before the decision whether or not to impose death can be made,the jury mustfind that aggravating factors substantially outweigh mitigating factors.“ These factual determinations are essential prerequisites to death- eligibility, but do not mean that death is the inevitable verdict; the jury can_ still reject death as the appropriate punishment notwithstanding these factual findings. (People v. Allen (1986) 42 Cal.3d 1222, 1277 [232 Cal.Rptr. 849, 729 P.2d 115].) In People v. Anderson, supra, 25 Cal.4th 543, 589, fn. 14, this Court held that since the maximum penalty for one convicted offirst degree murderwith a special circumstance is death, Apprendi was not applicable to the state’s death penalty law. Following Ring, this Court repeated the same analysis in People v. Snow (2003) 30 Cal.4th 43 [132 Cal.Rptr.2d 271, 65 P.3d 749], and People v. Prieto, supra, 30 Cal.4th 226. According to the Court, “Because anyfinding of aggravating factors during the penalty phase does not ‘increase the penalty for a crime beyond the prescribed statutory maximum’ [citation omitted], Ring imposes no new constitutional requirements on California’s penalty phase proceedings.” (People v. Prieto, supra, 30 Cal.4th 226, 263.) The Court’s analysis is mistaken and “* In Johnsonv. State (2002) 118 Nev. 787, 802, [59 P.3d 450, 460], the Nevada Supreme Court found that under a statute similar to California’s, the requirement that aggravating factors outweigh mitigating factors was a factual determination which must be made by the jury beyond a reasonable doubt. 228 cannot be sustained following Cunningham v. California, supra, 2007 U.S. Lexis 1324. In Ring, the state of Arizona made the same argument. The government pointed out that.a finding of first degree murderin Arizona,like a finding of special circumstance murderin California, leads to only two sentencing options: death orlife imprisonment. Hence, Ring was sentenced within the range of punishment authorized by the jury’s verdict. The high court was not persuaded: “This argument overlooks Apprendi’s instruction that ‘the relevant inquiry is one not of form, but of effect.’ [Citation.] In effect, ‘the required finding [of an aggravated circumstance] exposed [Ring] to a greater punishmentthan that authorized by the jury’s guilty verdict.” (Ring v. Arizona, supra, 536 U.S. 584, 604.) In this regard, California’s death penalty statute is indistinguishable from the Arizona law at issue in Ring. In Arizona, the trier of fact is required to impose death if the sentencer finds one or more aggravating circumstances,and no mitigating circumstances substantial enough to call for leniency.” (Ariz.Rev.Stat. § 13- 703(E).) California’s death penalty statute provides that the trier of fact may impose death only if the aggravating circumstances “© Arizona Revised Statutes Annotated, title 13, section 703, subdivision (E) provides: “In determining whether to impose a sentence of death orlife imprisonment, the trier of fact shall take into account the aggravating and mitigating circumstances that have been proven. Thetrier of fact shall impose a sentence of deathif the trier of fact finds one or more of the aggravating circumstances enumerated in subsection F of this section and then determinesthat there are no mitigating circumstances sufficiently substantial to call 229 substantially outweigh the mitigating circumstances. (§ 190.3.) There is no meaningful difference between the processesfollowedin California and Arizona. Just as in Arizona, a California conviction for first-degree murder, even with a finding of one or more special circumstances, “authorizes a maximum penalty of death only in a formal sense.” (Ring v. Anzona, supra, 536 U.S. 584, 604.) Section 190, subdivision (a) provides that the punishmentfor first-degree murder is 25 years to life, life without possibility of parole, or death. The penalty to be imposed in a particular case must be determined pursuantto sections 190.1, 190.2, 190.3, 190.4 and 190.5. Neitherlife without parole or death can be imposed unless the jury returns a true finding on a special circumstance. (§ 190.2.) Death is not an available option unless the jury makesthe further findings that one or more aggravating circumstances exist and the aggravation substantially outweighs any mitigating circumstances. (§ 190.3.) Moreover, a section 190.2 special circumstance cannot be equated with a section 190.3 factor in aggravation. (People v. Adcox, supra, 47 Cal.3d 207, 270.) As seen above, CALJIC No. 8.88 defines an aggravating circumstance asa fact, circumstance, or event beyond the elements of the crime itself. This Court has recognized that a special circumstance can even be argued to the jury as a mitigating circumstance. (See People v. Hernandez (2003) 30 Cal.4th 835, 863-864 [134 Cal.Rptr.2d 602, 69 P.3d 446].) for leniency.” 230 “If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt.” (Ring v. Arizona, supra, 536 U.S. 584, 604.) In Blakely, the high court made it clear that, as Justice Breyer complained in dissent, “a jury must find, not only the facts that make up the crime of which the offender is charged, but also all (punishment-increasing) facts about the way in which the offender carried out that crime.” (Blakely v. Washington, supra, 542 U.S. 296, 328 (dis, opn. of Breyer, J.).) The applicability of the Sixth Amendmentright to trial by jury turns on whether, as a practical matter, additional findings must be made during the penalty phase before the death penalty can be imposed. In California, as in Arizona, penalty phase findings are a necessary predicate to a death sentence. A California jury must first decide whether there are any factors in aggravation. Only after this initial factual determination has been made can the jury weigh those factors against the proffered mitigation. On remand from the high court, the Arizona Supreme Court found that the statutorily-specified finding as to the relative weight of aggravating and mitigating circumstances is the functional equivalent of an element of capital murder, and is therefore subject to the protections of the Sixth and Fourteenth Amendments. (See State v. Ring (2003) 204 Ariz. 534, 562 [65 P.3d 915, 943]; accord, State v. Whitfield (Mo. 2003) 107 S.W.3d 253: Woldt v. People (Colo. 2003) 64 P.3d 256; Johnson v. State, supra, 59 P.3d 450; see also Stevenson, The Ultimate Authority on the 231 Ultimate Punishment: The Requisite Role of the Jury in Capital Sentencing (2003) 54 Ala L. Rev. 1091, 1126-1127.) This Court’s refusal to accept the applicability of Ring to the penalty phase violates the Fifth, Sixth, Eighth, and Fourteenth Amendments. Following Cunningham v. California, supra, 2007 U.S. 1324, there can no longer be any doubt that any aggravating factor must be found beyond a reasonable doubt by a unanimous jury in order to comply with the Fifth, Sixth, Eighth, and Fourteenth amendments. (2) Any Finding Necessary for a Death Sentence Must Be Made by a Unanimous Jury This Court “has held that unanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749 [276 Cal.Rptr. 391, 801 P.2d 1142].) In the Court’s view, unanimity is only required as to penalty. (People v. Stanley, supra, 39 Cal.4th 913, 963.) Consistent with this construction of California’s capital sentencing scheme, no instruction was given to appellant’s jury requiring jury agreement on anyparticular aggravating factor. With nothing to guide its decision, there is nothing to suggest the jury imposed a death sentence based on any agreement on reasons for the sentencing decision. It violates the Sixth, Eighth, and Fourteenth Amendments to impose a death sentence when there is no assurancethe jury, or a majority of the jury, ever found a single set of aggravating circumstances which warranted the death penalty. Thefinding of one or more aggravating factors, and thefinding that such factors outweigh mitigating factors, are critical factual 232 findings in California’s sentencing scheme, and prerequisites to the final deliberative process in which the ultimate penalty decision is made. As seen above, in Apprendi, Ring, Blakely, and Cunningham the high court made clear that such factual findings must be made by a jury and cannot be attended with fewer procedural protections than decisions of much less consequence. Theseprotections include jury unanimity. A jury finding on the truth of an enhancementallegation in a non-capital case must be unanimous. (See, e.g., §§ 1158, 1158a.) Capital defendants are entitled to more rigorous protections than those afforded non-capital defendants (Mongev. California (1998) 524 U.S. 721, 732 [118 S.Ct. 2246, 141 L.Ed.2d 615]; Harmelin v. Michigan (1991) 501 U.S. 957, 994 [111 S.Ct. 2680, 115 L.Ed.2d 836]), and certainly no less (Ring v. Arizona, supra, 536 U.S. 584, 609). Jury unanimity was deemed such an integral part of criminal jurisprudence by the Framers of the California Constitution that the requirementdid not even have to be directly stated. (Cal. Const. art. I, § 16.) To apply the requirement to findings carrying a maximum punishment of a year but not to factual findings that have a substantial impact on the jury’s determination whether the defendant should live or die would be so inequitable as to violate the equal protection clause (U.S. Const., 14th Amend.), andbyits irrationality violate both the due process and cruel and unusual punishment clauses of the state and federal Constitutions, as well as the Sixth Amendment’s guaranteeofa trial by jury. 233 (B) Penalty Phase Jury Instructions on Proof Beyond a Reasonable Doubt The outcomeof a judicial proceeding necessarily depends on an appraisal of the facts. “[T]he procedures by whichthe facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important must be the procedural safeguards surrounding those rights.” (Speiser v. Randall (1958) 357 U.S. 513, 520-521 [78 S.Ct. 1332, 2 L.Ed.2d 1460].) The primary procedural safeguard implanted in the criminal justice system relative to fact assessment is the allocation and degree of the burden of proof. The burden of proof represents the obligation of a party to establish a particular degree of belief as to the contention sought to be proved. In criminal cases the burdenis rooted in the due process clauses of the Fifth and Fourteenth amendments. (/n re Winship, supra, 397 U.S. 358, 364.) In capital cases “the sentencing process,as well as thetrialitself, must satisfy the requirements of the Due Process Clause.” (Gardner v. Florida (1977) 430 U.S. 349, 358 [97 S.Ct. 1197, 51 L.Ed.2d 393].) Aside from the question of the applicability of the Sixth Amendmentto California’s penalty phase proceedings, the burden of proof for factual determinations during the penalty phase of a capital trial, whenlife is at stake, must be beyond a reasonable doubt. This is required by both the due process clause of the Fourteenth Amendmentand by the Eighth Amendment. 234 The requirements of due processrelative to the burden of persuasion generally depend upon the significance of whatis at stake and the social goal of reducing the likelihood of erroneous results. (/n re Winship, supra, 397 U.S. 358, 363-364: see also Addington v. Texas (1979) 441 U.S. 418, 423 [99 S.Ct. 1804, 60 L.Ed.2d 323].) Thereis no interest that is litigated in the courts than whether -a human being will live or die. Far less compelling interests are protected by the requirement of proof beyond a reasonable doubt before they may be extinguished. (/n re Winship, supra, 397 U.S. 358 [adjudication of juvenile delinquency]; People v. Feagley (1975) 14 Cal.3d 338 [121 Cal.Rptr. 509, 535 P.2d 373] [commitment as mentally disordered sex offender]; People v. Thomas (1977) 19 Cal.3d 630 [139 Cal.Rptr. 594, 566 P.2d 228] [commitment as narcotic addict]; Conservatorship of Roulet (1979) 23 Cal.3d 219 [152 Cal.Rptr. 425, 590 P.2d 1] [appointment of conservator].) The decision to take a person’s life must be made under no less demanding a standard. In Santosky v. Kramer (1982) 455 U.S. 745, 755 [102 S.Ct. 1388, 71 L.Ed.2d 599] the high court explained that “in any given proceeding, the minimum standard of proof tolerated by the due process requirementreflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.” Thus, in a civil case, thelitigants share the risk by meansof the preponderance of the evidence burden of proof. (/bid.) In a criminal case, “the interests of the defendant are of such magnitudethat historically and 235 without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. [Citation.]’ (/bid.) “The stringency of the ‘beyond a reasonable doubt’ standard bespeaks the ‘weight and gravity’ of the private interest affected [citation], society’s interest in avoiding erroneous convictions, and a judgmentthat those interests together require that society [impose] almostthe entire risk of error uponitself.” (/bid.) Adoption of a reasonable doubt standard in the penalty phase would not deprive the government of the power to impose capital punishment; it would merely serve to maximize “reliability in the determination that death is the appropriate punishmentin a specific case.” (Woodson v. North Carolina, supra, 428 U.S. 280, 305.) The only risk of error suffered by the state under the stricter burden of persuasion would be the possibility that a defendant, otherwise deserving of being put to death would instead be confined in prison for the rest of his life without possibility of parole. The high court has acknowledged the “unique circumstances of a capital sentencing proceeding” (Caspari v. Bohlen (1994) 510 U.S. 383, 392 [114 S.Ct. 948, 127 L.Ed.2d 236]) present an “acute needforreliability.” (Monge v. California, supra, 524 U.S. 721, 732.) Accordingto the court, “[I]n a capital sentencing proceeding, as ina criminaltrial, ‘the interests of the defendant [are] of such magnitude that . . . they have beenprotected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.’ [Citations.]” (/d. at pp. 732-733.) The sentencer of a person facing the death penalty is required by the due process and 236 Eighth Amendment constitutional guarantees to be convinced beyond a reasonable doubt not only are the factual bases forits decision true, but that death is the appropriate sentence. (C) The Failure to Require Written Findings Regarding Factorsin Aggravation. The failure to require written or other specific findings by the jury regarding aggravating factors deprived appellant of his federal due process and Eighth Amendmentrights to meaningful appellate review. (California v. Brown, supra, 479 U.S. 5338, 543; Gregg v. Georgia, supra, 428 U.S. 153, 195.) Especially given that California juries have total discretion without any guidance on how to weigh potentially aggravating and mitigating circumstances (People v. Fairbank, supra, 16 Cal.3d 1223), there can be no meaningful appellate review without written findings becauseit will otherwise be impossible to “reconstruct the findings of the statetrier of fact.” (See Townsend v. Sain (1963) 372 U.S. 293, 313-316 [83 S.Ct 745, 9 L.Ed.2d 770].) This Court has held that the absenceof written findings by the sentencer does not render the 1978 death penalty scheme unconstitutional. (People v. Fauber (1992) 2 Cal.4th 792, 859 [9 Cal.Rptr.2d 24, 831 P.2D 249]; People v. Rogers (2006) 39 Cal.4th 826, 893 [48 Cal.Rptr.3d 1, 141 P.3d 135].) Ironically, such findings are otherwise considered by this Court to be an element of due process so fundamental that they are even required at parole suitability hearings. A convicted prisoner who believes that he or she was improperly denied parole must proceed via apetition for writ of 237 habeas corpus and is required to allege with particularity the circumstances constituting the State’s wrongful conduct and show prejudice flowing from that conduct. (/n re Sturm (1974) 11 Cal.3d 258 [113 Cal.Rptr. 361, 521 P.2d 97].) The parole board is therefore required to state its reasons for denying parole:“It is unlikely that an inmate seeking to establish that his application for parole was arbitrarily denied can make necessary allegations with the requisite specificity unless he has some knowledge of the reasons therefor.” (Id. at'p. 269.) The same reasoning should be applied to the far graver decision to put someoneto death. In a non-capital case, the sentencer is required by California law to state on the record the reasons for the sentence choice. (§ 1170, subd. (c).) Capital defendants are entitled to more rigorous protections than those afforded non-capital defendants. (Harmelin v. Michigan, supra, 501 U.S. 957, 994.) Since providing more protection to a non-capital defendant than a capital defendant would violate the equal protection clause of the Fourteenth Amendment (see Myers v. Yist (9th Cir. 1990) 897 F.2d 417, 421), the sentencer in a capital case is constitutionally required to identify for the record the aggravating circumstances found and the reasonsfor the penalty chosen. Written findings are essential for a meaningful review of the sentence imposed. (See Mills v. Maryland (1988) 486 U.S. 367, 383, fn. 15 [108 S.Ct. 1860, 100 L.Ed.2d 384].) Even where the decision to impose death is putatively “normative” (People v. Demetrulias, supra, 39 Cal.4th 1, 41-42) and “moral” (People v. 238 Hawthorne, supra, 4 Cal.4th 43, 79), its basis can be, and should be, articulated. The importance of written findings is recognized throughout this country; post-Furman state capital sentencing systems commonly require them. Furthermore,written findings are essential to ensure that a defendant subjected to a capital penalty trial under section 190.3 is afforded the protections guaranteed by the Sixth Amendmentrightto trial by jury. There are no other procedural protections in California’s death penalty system that somehow compensate for the unreliability inevitably produced by the failure to require an articulation of the reasonsfor imposing death. (See e.g., Kansasv. Marsh, supra, 226 S.Ct. 2516 [death penalty law which treats a jury’s finding that aggravation and mitigation are in equipoise as a vote for death held constitutional in light of a system filled with other procedural protections, including requirements that the jury find unanimously and beyond a reasonable doubt the existence of aggravating factors and that suchfactors are not outweighed by mitigating factors].) The failure to require written findings thus violated not only federal due process and the Eighth Amendmentbut also the right to trial by jury guaranteed by the Sixth Amendment. (D) The Lackof Intercase Proportionality Review. The Eighth Amendment prohibits cruel and unusual punishment. As a result, to satisfy the Eighth Amendment death judgments must be reliable and proportionate. A common mechanism to satisfy these requirements is comparative 239 proportionality review—a procedural safeguard this Court has rejected. . As seem above, in Pulley v. Harris, supra, 465 U.S. 37, 51, the high court, declined to hold that comparative proportionality review is an essential component of every constitutional capital sentencing scheme. However, the court added it was conceivable that “there could be a capital sentencing schemeso lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review.” (/d. at p. 51.) California’s 1978 death penalty statute, as drafted and as construed by this Court and applied in fact, has become a sentencing scheme lacking any constraints on arbitrariness. The high court in Pulley v. Harris, supra, 465 U.S. 37, upheld California’s 1977 law against a_ lack-of-comparative-proportionality-review challenge. The court went on to note that the 1978 law had “greatly expanded”thelist of special circumstances. (Id. at p. 52, fn. 13.) That number has continued to grow, and expansive judicial interpretations of section the lying-in-wait special circumstance have made first-degree murders that cannot be charged with a “special circumstance”a rarity. As explained above, the special circumstances fail to meaningfully narrow the pool of death-eligible defendants and therefore open the door to the same sort of arbitrary sentencing condemned in Furman v. Georgia, supra, 408 U.S. 238. As seen above, the 1978 death penalty law lacks numerous other procedural safeguards commonly utilized in other capital sentencing jurisdictions, and the statute’s principal penalty phase sentencing 240 factor—the circumstances of the crime—has been construed so as to be an invitation to arbitrary and capricious sentencing. Given these failings, the lack of comparative proportionality review renders the 1978 death penalty law arbitrary and capriciousin violation of the Eighth Amendment. Although section 190.3 does not require intercase proportionality review (see People v. Fierro, supra, 1 Cal.4th 173, 253), the statute does not forbid it. Instead, the prohibition on the on intercase proportionality review is a creation of this Court. (See, e.g., People v. Marshall, supra, 50 Cal.3d 907, 946-947.) The Court's refusal to engagein intercase proportionality review violates the Eighth Amendment. (E) The Introduction of Uncharged Acts Evidence in the Penalty Phase as Factor (b) Aggravation Any use of unadjudicated criminal activity by the jury as an aggravating circumstance under section 190.3, factor (b), violates due process and the Fifth, Sixth, Eighth, and Fourteenth Amendments, rendering a death sentence unreliable. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578 [108 S.Ct. 1981, 100 L.Ed.2d 676][Eighth Amendmentviolation to permit introduction at penalty phase of felony conviction which had been set aside for violation of the right to appeal].) In this case, the governmentrelied heavily upon unadjudicated criminal activity in the penalty phase. This evidence included the Silvey robbery, possession of a firearm as a minor, battery incidents with Cathy Brown, and a battery on Timothy McNulty. In his closing argument, the district attorney talked aboutall of these matters (66 RT 6971-6973), with particular 241 emphasis on the Silvey incident (66 RT 6974-6991). In his argument, the prosecutor assured the jury the factor (b) evidence wasthe “clincher” demanding a death sentence. (66 RT 6970.) As seen above, Apprendi, Ring, Blakely, and Cunningham confirm the Sixth Amendmentrightto trial by jury and the Fourteenth Amendmentright to due process require that findings underlying a death sentence must be proven beyond a reasonable doubt and found by a unanimousjury. Thus, even if it were constitutionally permissible to rely upon alleged unadjudicated criminal activity as a factor in aggravation, the acts would have to be have been found beyond a reasonable doubt by a unanimous jury. Appellant’s jury was not instructed on the need for a unanimous finding; to the contrary, the jury was advised there was no unanimity requirement. (F) Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Acted as Barriers to Consideration of Mitigation by the Jury Theinclusion in the list of potential mitigating factors of such adjectives as “extreme” (factors (d) and (g)) and “substantial” (factor (g)) acted as barriers to the consideration of mitigation in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Mills v. Maryland, supra, 486 U.S. 367; Lockett v. Ohio, supra, 438 U.S. 586.) 242 (G) The Failure to Instruct That Statutory Mitigating Factors Were Relevant Only as Potential Mitigation Precluded a Fair, Reliable, and Evenhanded Administration of the Death Penalty The jury was given with the standard jury instruction describing the factors in mitigation and aggravation, CALJIC No. 8.85. (14 CT 4114-4116.) As a matter of State law, each of the factors introduced by a prefatory “whether or not” — factors (qd), (e), (f), (g), (h), and (j) — were relevant solely as possible mitigation. (People v. Hamilton (1989) 48 Cal.3d 1142, 1184 [259 Cal.Rptr. 701, 774 P.2d 730]; People v. Edelbacher (1989) 47 Cal.3d 983, 1034 [254 Cal.Rptr. 586, 766 P.2d 1].) The jury, however, wasleft free to conclude that a “not” answer as to any of these “whether or not” sentencing factors could establish an aggravating circumstance, and wasthus invited to aggravate the sentence upon the basis of non- existent and/orirrational aggravating factors, thereby precluding the reliable, individualized capital sentencing determination required by the Eighth and Fourteenth Amendments. (Woodson v. North Carolina, supra, 428 U.S. 280, 304.) Further, the jury was also left free to aggravate a sentence upon the basis of an affirmative answer to one of these questions, and thus, to convert mitigating evidence, such as evidence establishing a defendant's mentalillness or defect, into a reason to aggravate a sentence, in violation of both state law and the Eighth and Fourteenth Amendments. This Court has repeatedly rejected the argument that a jury would apply factors meant to be only mitigating as aggravating 243 - factors weighing towards a sentence of death. (People v. Morrison (2004) 34 Cal.4th 698, 730 [21 Cal.Rptr.3d 682, 101 P.3d 568].) However, the facts in Morrison demonstrate this assertion is mistaken. In that case, the trial judge erroneously believed factors (e) [whetheror not the victim was a participant in the homicidal act or consented to it] and (j) [whether or not the defendant was an accomplice whose participation was relatively minor] constituted aggravation instead of mitigation. (People v. Morrison, supra, 32 Cal.4th 698, 727-729.) This Court recognized thetrial court’s error, but found it to be harmless. (/d. at p. 729.) Othertrial judges have been misled in the same way. (See, e.g., People v. Montiel (1994) 5 Cal.4th 877, 944-945 [21 Cal.Rptr.2d 705, 855 P.2d 1271]; People v. Carpenter, supra, 15 Cal.4th 312, 423-424.) If experienced judges can be misled by the “whether or not” language at issue, there can belittle doubt jurors make the same mistake. The very real possibility that appellant's jury aggravated his sentence upon the basis of nonstatutory aggravation deprived appellant of an important state-law generated procedural safeguard and liberty interest—the right not to be sentenced to death except upon the basis of statutory aggravating factors (People v. Boyd, supra, 38 Cal.3d 765, 772-775)—and thereby violated appellant’s Fourteenth Amendmentright to due process. (See e.g., Hicks v. Oklahoma, supra, 447 U.S. 343.) 244 XXl. THE CALIFORNIA SENTENCING SCHEME VIOLATES THE FOURTEENTH AMENDMENT GUARANTEE OF EQUAL PROTECTION BY DENYING PROCEDURAL SAFEGUARDSTO CAPITAL DEFENDANTS WHICH ARE AFFORDEDTO NON- CAPITAL DEFENDANTS. As described above, the high court has repeatedly held the Eighth Amendment requires heightened reliability in capital cases and courts must be vigilant to ensure procedural fairness and accuracyin fact-finding. (See, e.g., Monge v. California, supra, 524 U.S. 721, 731-732.) Despite this oft-repeated directive, California’s death penalty law providessignificantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes. This differential treatment violates the constitutional guarantee of equal protection of the laws. Equal protection analysis begins with identifying the interest at stake. “Personalliberty is a fundamental interest, second only tolife itself, as an interest protected under both the California and the United States Constitutions.” (People v. Olivas (1976) 17 Cal.3d 236, 251 [131 Cal.Rptr. 55, 551 P.2d 375].) If the interest is “fundamental,” then courts have “adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny.” (Westbrook v. Milahy (1970) 2 Cal.3d 765, 784-785 [87 Cal.Rptr. 839, 471 P.2d 487].) A state may not create a classification scheme that affects a fundamental interest without showing that it has a compelling interest which justifies the classification and that the 245 distinctions drawn are necessary to further that purpose. (People v. Olivas, supra, 17 Cal.3d 236, 243.) In the present case, the government cannot meet this burden. Equal protection guarantees must apply with greater force, the scrutiny of the challenged classification be more strict, and any purported justification by the State of the discrepant treatment be even more compelling because the interest at stake is not simply liberty, butlife itself. In People v. Prieto, supra, 30 Cal.4th 226, 275, and People v. Snow, supra, 30 Cal.4th 43, 126, fn. 32, this Court analogized the process of determining whether to impose death to a sentencing court's traditionally discretionary decision to impose one prison sentence rather than another. However apt or inapt the analogy, California is in the unique position of giving persons sentenced to death significantly fewer procedural protections than a person being sentenced to prison for receiving stolen property, or possessing cocaine. An enhancing allegation in a California non-capital case must be found true unanimously, and beyond a reasonable doubt. (See, e.g., sections 1158, 1158a.) When a judge is weighing an appropriate sentence in a non-capital case, the decision is governed by court rules—and these rules require a statement of reasons for sentencing decisions. For example, rule 4.406(b)(4) requires a statement of reasonsfor selecting a term of imprisonment other than the midterm. In a capital sentencing context, however, there is no burden of proof other than asto factor (b) evidence of other crimes. Even as 246 to this aggravation, however, jurors need not agree on whatfacts are true, or important, or what aggravating circumstances apply. And unlike sentencing decisions for non-capital crimes, no reasons need be given for a death sentence. These discrepancies are skewedagainst persons subject to the death penalty and violate the requirement of equal protection of the laws. (See Bush v. Gore (2000) 531 U.S. 98, 104-105 [121 S.Ct. 525, 148 L.Ed.2d 388].) For the state to provide greater protection to non-capital defendants than to capital defendants violates due process (U.S. Const., 5th & 14th Amends), equal protection (U.S. Const., 14th Amend.), and the prohibition on cruel and unusual punishment (U.S. Const., 8th Amend.). 247 XXIl. CALIFORNIA’S USE OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENTFALLS SHORTOF INTERNATIONAL NORMS OF HUMANITY AND DECENCY The United States is one of the few nations that regularly uses the death penalty as a form of punishment. (Donnelly, Soering v. United Kingdom: Whether the Continued Use of the Death Penalty in the United States Contradicts International Thinking? (1990) 16 N.E. J. on Crim. and Civ. Con. 339, 366.) The death penalty has been abolished in law or practice in 128 nations. (Amnesty International, The Death Penalty, Abolitionist and Retentionist Countries, [as of January 20, 2007].) In 2005, the most recent year for which Statistics are available, 94 percent of executions worldwide took place in China, Iran, the United States, and Saudi Arabia. (Amnesty International, The Death Penalty, Death Sentences and Executions in 2005, [as of January 20, 2007].) The United States as a sovereign nation is not bound by the laws of other nations in its administration of the criminal justice system. Nevertheless, as a memberof the community of nations,it has always taken into account the customs and practices of the international community. Since the Second World War, the United States has joined other members of the international community in taking steps to protect basic human rights. For example, the Nuremberg trial of surviving members of the German fascist leadership for war crimes and crimes against humanity took place at 248 the insistence of the United States. (Conot, Justice at Nuremberg (1983) pp. 10-13.) President Truman considered the prosecution so important that he persuaded Justice Robert Jackson to take a leave of absence from the high court to serve as the nation’s chief prosecutor. (/d. at p. 14.) The United States has supported internationalinstitutions and agreements fostering human rights. On December 10, 1948, the United States joined the overwhelming majority of nations in the General Assembly of the United Nations in adopting the Universal Declaration of Human Rights. (Re, The Universal Declaration of Human Rights and the Domestic Courts (1998) 31 Suffolk U. L. Rev. 585, 589 [hereafter Human Rights and the Domestic Courts].) The Declaration was approved without a single dissenting vote. (/d. at p. 590.) Among other provisions, the Declaration affirms “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” (Universal Declaration of Human Rights, art. V [as of March 6, 2004].) The Declaration is a statementof principals describing the standards and expectations of the international community rather than a treaty or law. (Human Rights and the Domestic Courts, supra, 31 Suffolk U.L. Rev. 585, 591.) Giventhis history, it is not surprising the high court examines the views of the international community when confronted with Eighth Amendment issues. To determine whether a challenged punishment is cruel and unusual, the court looks to a range of sources to determine “the evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles (1958) 356 U.S. 249 86, 101 [78 S.Ct. 590, 2 L.Ed.2d 630] (plur. opn. Of Warren, C.J.).) The views of other nations have played a role in a numberof recent cases. In Roper v. Simmons, supra, 543 U.S. 551, 578, the court took note of the fact the United States was the only nation in the world, which retained the death penalty for juveniles. This isolation in the community of nations was amongthefactors that led the court to hold the Eighth Amendment prohibited the death penalty for offenders who committed murderwhilestill minors. (See also Atkins v. Virginia (2002) 536 U.S. 304, 316 [122 S.Ct. 2242, 153 L.Ed.2d 335]{world community overwhelmingly disapproves of imposition of death penalty on the mentally retarded]; Lawrence v. Texas (2003) 939 U.S. 558, 572-573 [123 S.Ct. 2473, 156 L.Ed.2d 508] [international opinion and court decisions relevant to determination “evolving standards of decency” prohibit prosecution of homosexual relations between consenting adults].) In the international community, regular use of the death penalty for the crime of murder is contrary to the norms of human decency. Simply stated, capital punishmentis no longer acceptedin Western nations. Indeed, the European Union opposes the death penalty in all cases and haslobbied for its abolition in the United States. (See European Union, Delegation of the European Union Commission to the USA, EU Policy and Action on the Death Penalty, [as of January 20, 2007].) As seen above, the vast majority of nations have abolished the death penalty for ordinary crimes such as murder. The Eighth Amendment does not permit jurisdictions in this nation to lag so far behind the viewsof the 250 international community. (See Atkins v. Virginia, supra, 536 U.S. 304, 316.) | Thus, the very broad death scheme in California and death's use as regular punishment violate both international law and the Eighth and Fourteenth Amendments. Appellant's death sentence should beset aside. 251 CONCLUSION For the foregoing reasons, appellant Keith Tyson Thomas respectfully requests the court grant the relief prayed for in this appeal. Dated: January 26, 2007. Respectfully Submitted, —od, LALA LN David Joseph Ma CK Appellate Counselfa Keith Tyson Thomas 252 CERTIFICATE OF LENGTH |, David Joseph Macher, appellate counsel for Keith Tyson Thomas, herebycertify, pursuant to the California Rules of Court that the word count for this document is 61,447 words. Thetotal excludes the tables, proof of service, and this certificate. This document was prepared in Microsoft Word for Mac, and this is the word count generated by the program for this document. | certify under penalty of perjury underthe lawsof the State of California that the foregoing is true and correct. Executed at Murrieta, California, on January 26, 2007. Teect \ Wal, Qk AL David Joseph Mather Appellate CounseNfor Keith Tyson Thomas 253 Declaration Of Service By Mail | am employed in the County of Riverside, State of California.| am over the age of 18 and not a party to the within action. My business address is P.M.B. 298, 40485 Murrieta Hot Springs Road, Murrieta, California 92563. On January 29, 2007, | served the foregoing document described as Appellant’s Opening Brief on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope with postage thereonfully prepaid in the United States mail at Murrieta, California, addressed to the personin charge asfollows: Clerk’s Office California Supreme Court 350 McAllister Street San Francisco, CA 94102 [original and 14 copies] Ms. April Boelk Death Penalty Appeals Clerk Alameda County Superior Court 1225 Fallon Street Oakland, CA 94612 Attorney General’s Office 455 Golden Gate Avenue, #11000 San Francisco, CA 94102 District Attorney’s Office 1225 Fallon Street, Room 900 Oakland, CA 94612 Michael Lasher, Esq. Staff Attorney California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105 Alfons Wagner, Esq. Attorney at Law 1185 Solano Ave #131 Albany, CA 94706-1637 William Paul Cole, Esq. Attorney at Law Krech & Cole 1611 Telegraph Ave #1100 Oakland, CA 94612 Keith Tyson Thomas P.O. Box K-82600 San Quentin, CA 94974 | declare under penalty of perjury that under the laws of the State of California that the aboveis true and correct. Executed this 29th day of January 2007at Murrieta, California. ON eeeLie eekDavid Joseph Mag