PEOPLE v. WILLIAMS (JACK EMMIT)

Appellant’s Reply Brief

Cal.November 16, 2009

St Tey Oe ay COURT Me, STAs PE EN TRE SUPREME COURT CP THE STATE OF CALIPORMES THE PEOPLE OF THE STATE GF CALIFORNIA, 3 risindland Respondent, } JACK EMAMIDD WELLESADs, Defoncant and Arpellant, ‘ Pefthe Sumerior lourt srnia for tive Uevaniy of Riverside POORABLE TIMOTHY HEA! REPLY BRIEF FOR APPELLAST JACK FE, WELLLASTS KR. Diavion Seaman, dr. Atterueyat Law Pad. Bow 120s Presealt, AX Bbab4 {228} 77-81 68 Bur Ma. 126348 Usunsel for Appellant Jaeb Een Willbame TOPICAL INDEX Subject Page TABLE OF AUTHORITIES ....... 0... ccc cccences viii ARGUMENTS. 2... .. cccenen nen nee een nee een ene 1 GUILT PHASE ISSUES ....... 0.0... ceceeeetnee eee 1 I. BY IMPROPERLY DISMISSING JUROR #12 FOR PURPORTED MISCONDUCT, THE TRIAL COURT VIOLATED APPELLANT'S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS AS WELL AS HIS RELATED RIGHTS UNDER THE CALIFORNIA CONSTITUTION ......... 0.0.0. cee ee 1 Summary of Appellant’s Argument ................. 0.0000 ee 1 Summary of Respondent’s Argument ............... 0.00000 3 Errors in Respondent’s Arguments ........... 0... e cence ees 3 Standard of Review ......... 0.0.2 cece eee ee eee 3 No commentary on the merits of the case ............... 4 RACE 2...eeeee eee eee tee eee 9 Constitutional Prohibitions Were Violated ............. 13 II. BY IMPROPERLY DISMISSING THE HOLDOUT (AND ONLY REMAINING) BLACK JUROR, JUROR #10, THE TRIAL COURT VIOLATED APPELLANT’SFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTRIGHTSAS WELLAS HIS RELATED RIGHTS UNDER THE CALIFORNIA CONSTITUTION ........... 15 Summary of Appellant’s Argument ..............0 0c e eee 15 Summary of Respondent’s Argument —s.....- eee eee ee 16 Errors in Respondent’s Arguments .............. 0000s scene 16 No “Demonstrable Reality” That Inattentiveness Affected Jury Deliberations ©0100... 0.6 cee eens 17 No “Demonstrable Reality” That Juror #10 refused to Deliberate 2... 0.0...eeeens 23 Inadequate Inquiry into Credible Assertions of Juror Misconduct ....... 0. eee eee ee eee eens 29 Prejudice 2...eeeteteens 39 Ill. . SUBSTITUTION OF AN ALTERNATE JUROR FOR ORIGINAL JUROR #10 COERCED A VERDICT ......... 0.0.0. ee eee eee eee 41 Summary of Appellant’s Argument ..........- 5.555 e eee 41 Summary of Respondent’s Argument .........-...---.e ee 41 Errors in Respondent’s Arguments ............. eee eee eee 42 Deliberations Prior to Dismissal of Holdout Juror #10. .. 43 Deliberations After Dismissal of Holdout Juror #10 ..... 44 IV. THE TRIAL COURT ERREDIN INSTRUCTING ONLY ONFIRST DEGREE FELONY MURDER WITHOUT ANY LESSER INCLUDED OFFENSE INSTRUCTION, ANDIN GIVING SPECIAL CIRCUMSTANCEINSTRUCTIONS WHICH ALLOWED THE SPECIAL CIRCUMSTANCETO BE IMPUTED TO APPELLANT.. 49 Summary of Appellant’s Argument .........-...55---.e eee 49 Summary of Respondent’s Argument ..............+-0+e05- 49 Errors in Respondent’s Arguments .......--.. +. esses eee 50 Prejudice . 6...c eeet eee ee 53 V. THE TRIAL COURT'S ANSWERTO THE JURY'S QUESTION REGARDING AIDER AND ABETTER LIABILITY WAS NEITHER RESPONSIVE NOR IMPARTIAL. THUS,IT VIOLATED APPELLANT'S FIFTH AND FOURTEENTH AMENDMENTRIGHT TO DUE PROCESS, HIS SIXTH AMENDMENTRIGHT TO A JURY TRIAL AND HIS EIGHTH AMENDMENTRIGHT TO A RELIABLE GUILT DETERMINATIONIN A CAPITAL CASE ..........--.-- 56 Summary of Appellant’s Argument ............-.-2-2 eee ee 56 Summary of Respondent’s Argument ..........--.-+--0 000s 57 Errors in Respondent’s Argument ........... 005-0 ee eee eee 57 No W@iVEr 2...ceeteen tte n eens 58 CALJIC 3.00 Is Misleading in the Context of this Case .. 64 CALJIC 3.00 Is a Fatally UnbalancedInstruction in the Context of this Case ..... 0... ceeeee 65 Prejudice 0...eeeee enn 66 VI. CALJIC 3.02 WAS MISLEADING AND APPLIED AN IMPROPER STANDARD FOR A NONKILLER WHO AIDED AND ABETTED IN A FELONY MURDER CASE........ 0.0: c cece eee een eens 70 Summary of Appellant’s Argument ................ 0.00000, 70 Summary of Respondent’s Arguments ............... 000065 70 il Errors in Respondent’s Arguments ......... 0.0.00 eee eee 70 Coffman and MarlowIs Distinguishable .............. 71 No Wallver .. 0... 0. eeecee tenes 72 The Errors Were Not Cured by OtherInstructions ....... 73 VIl. ALTERNATIVELY, IF THE JURY WAS PROPERLY INSTRUCTED ON THE NATURAL AND PROBABLE CONSEQUENCES DOCTRINE, THE TRIAL COURT ERREDIN FAILING TO MODIFY THE INSTRUCTION SUA SPONTETO TELL THE JURY THAT THE TEST WAS OBJECTIVE RATHER THAN SUBJECTIVE .......... 75 Summary of Appellant’s Argument .............-0 se eee eee 75 Summary of Respondent’s Argument ...........-.-.--0 000) 77 Errors in Respondent’s Arguments .......... 5.00 eee eee eee 77 Insufficient Evidence That Natural and Probable Consequences Doctrine Applies .............+-2++45- 77 Sua sponte duty to define terms with a technical meaning . 80 VII. THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURORS TO DETERMINE WHETHER THERE WASA SINGLE OR MULTIPLE CONSPIRACIES VIOLATED APPELLANT’S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTRIGHTS BY IMPROPERLY LOWERING THE PROSECUTION’S BURDEN OF PROOF ON A MATERIAL ISSUE OF FACT ....... 0.000 e cece eee ees 84 Summary of Appellant’s Argument ...........-.. 00s eee eeee 84 Summary of Respondent’s Argument ..........-.+-4 eee ee 85 Errors in Respondent’s Arguments ......... 0. ee ee eee eens 86 Inappropriate Response to Jury Note Inquiring about Single vs. Multiple Conspiracies .........-.6 000s e eee 86 No Waiver . 0... ccceeen teen en nes 88 Nature of the Conspiracy... 0.0.00... eee ee eee eee eee 91 Prejudice... 6...eteteens 94 LX. THE TRIAL COURT ERRED IN FAILING TO REQUIRE THAT THE JURY AGREE UNANIMOUSLY THAT THERE WAS ONE OR MORE CONSPIRACIES AND THAT THE DEFENDANT WASPART OF EACH SUCH CONSPIRACY ........ 00. c eee tee eens 97 Summary of Appellant’s Argument ..........--2 6-5 esse eee 97 Summary of Respondent’s Arguments .........--.-++eseee 97 Errors in Respondent’s Argument ......-.--..- 62sec e ee eee 98 ili X. THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY INSTRUCTING THE JURY ON CONSCIOUSNESSOF GUILT ... 100 Summary of Appellant’s Argument ..............0.002 eee. 100 Summary of Respondent’s Argument ..............00e-00- 100 Errors in Respondent’s Arguments. iw. eee eee ee eee 101 Consciousnessof guilt instructions are not beneficial to the defense .... 0... ccc cece ete e teens 101 CALJIC 2.03 is inapplicable to the facts of this case. ... 103 CALJIC 2.06 was improper underthe facts of this case. . 105 Prejudice 2.0...eectte eet nees 106 XI. THE EVIDENCE WAS CONSTITUTIONALLYINSUFFICIENT TO SUPPORT THE JURY’S ROBBERY-MURDERSPECIAL CIRCUMSTANCEFINDING AS TO APPELLANT, WHO WAS CONVICTED AS AN AIDER AND ABETTOR OR CO-CONSPIRATOR ....... 0.0 c cece cee eee eet e eens 108 Summary of Appellant’s Argument ..................0006. 108 Summary of Respondent’s Argument ...............200005 108 Errors in Respondent’s Arguments ............ 00.00 ee cues 109 Insufficient Evidence of Reckless Indifference ........ 109 XII. THE TRIAL COURT ERRED IN REQUIRING APPELLANT WILLIAMS TO WEAR LEG RESTRAINTS DURING THE TRIAL. 117 Summary of Appellant’s Argument ................. 000055 117 Summary of Respondent’s Argument .................005. 117 Errors in Respondent’s Arguments .......... 000.0000 118 NO WaiVEr ... eeeceeee te eens 118 Shackling Was Improper ........... 00.00 cece eee 119 Prejudice 21... eeee eens 124 PENALTY PHASE ISSUES ..........0. 00. e eee eee eee e ences 129 XII. APPELLANT'S DEATH SENTENCE, IMPOSED FOR FELONY MURDERSIMPLICITER, IS A DISPROPORTIONATE PENALTY UNDER THE EIGHTH AMENDMENT AND VIOLATES I INTERNATIONAL LAW .......... 0.0 cece eee eect ene 129 Summary of Appellant’s Argument ....................-.. 129 Summary of Respondent’s Argument .................-..- 131 Errors in Respondent’s Arguments ................0-00005 132 Tison is No Longer Good Law .............0000000 133 iV XIV. XV. XVI. XVII. THE TRIAL COURT VIOLATED APPELLANT’SSIXTH AMENDMENTRIGHT TO COUNSEL BY REFUSING TO CORRECT AN OBVIOUS CONFLICT SITUATION ..............0.. 000056, 142 Summary of Appellant’s Argument ..............0. 000 eee 142 Summary of Respondent’s Argument .................0065 143 Errors in Respondent’s Arguments ........... 0.00000 ee eee 143 THE TRIAL COURT ERREDIN FAILING TO CORRECT THE JURY’S MISUNDERSTANDING CONCERNING THE MEANING OF A SENTENCEOF LIFE WITHOUT PAROLEANDIN FAILING TO AMELIORATE ITS FEAR THAT THE SENTENCEIT IMPOSED WOULD NOTBE CARRIED OUT .... 0... 0... c ece 150 Summary of Appellant’s Argument ..............--2--05- 150 Summary of Respondent’s Argument .............-00-0 ue 150 Errors in Respondent’s Arguments ............ 0.0. e eee 151 APPELLANT WAS DEPRIVED OF A FAIR TRIAL AND A RELIABLE PENALTY DETERMINATIONIN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSBY INTRODUCTION OF IRRELEVANT AND HIGHLY PREJUDICIAL "VICTIM IMPACT EVIDENCE" ........ 154 Summary of Appellant’s Argument .............-.---0-0-- 154 Summary of Respondent’s Argument .............-.0.000- 155 Errors in Respondent’s Arguments ......... 0.000 e eee eee 155 Overwhelming Emotional Impact ..................- 157 Invidious Appeals to Race ......... 0... eee eee eee 159 No Waiver ow. eeeee ee eee nes 165 Conclusion ...... 0.00 ceeete eee nee 167 THE TRIAL COURT SHOULD HAVEINSTRUCTED THE JURY ON THE APPROPRIATE USE OF VICTIM IMPACT EVIDENCE. . 168 Summary of Appellant’s Argument ............-..-.05005- 168 Summary of Respondent’s Argument .........--..--0 +005: 168 Errors in Respondent’s Argument .......- 0.0... eee ee ees 168 XVII. THE TRIAL COURT ERREDIN REFUSING TO INSTRUCT ON LINGERING DOUBTIN VIOLATION OF STATE LAW AND THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS.......00 0: cece eee een e een e ene nnens 170 Summary of Appellant’s Argument .........--.--..05 5005 170 Vv XIX. XX, XXI. XXII. Summary of Respondent’s Argument .................005: 170 Errors in Respondent’s Argument ........-.--.- +e eee eee 171 INSTRUCTING THE JURY PURSUANTTO CALJIC NO.8.85 VIOLATED APPELLANT’S EIGHTH AND FOURTEENTH AMENDMENTRIGHTS TO A RELIABLE SENTENCING DETERMINATION ........ 00: c eee ce eee eee eens 172 Summary of Appellant’s Argument ..........-.. +0000 172 Summary of Respondent’s Argument ...........--.++-005 172 Errors in Respondent’s Argument .........----. see eee 172 INSTRUCTING THE JURY IN ACCORDANCEWITH CALJIC NO. 8.88 VIOLATED APPELLANT’’S FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTRIGHTS............ 000000 e eee 173 Summary of Appellant’s Argument .........-.-.--00 eee 173 Summary of Respondent’s Argument .................045- 173 Errors in Respondent’s Argument ........... 000 -e eee ee ees 174 THE DEATH PENALTYIS DISPROPORTIONATE TO APPELLANT’S INDIVIDUAL CULPABILITY AND ITS IMPOSITION WOULD THEREFORE VIOLATE THE EIGHTH AMENDMENTAND ARTICLE I, SECTION 17 OF THE CALIFORNIA CONSTITUTION ........ 175 Summary of Appellant’s Argument ............. 0000-0 e eee 175 Summary of Respondent’s Argument ...........--2+---05- 175 Errors in Respondent’s Arguments .......... 000000 e ee eeee 175 THE VIOLATIONS OF MR. WILLIAMS’ RIGHTS ARTICULATED ABOVE CONSTITUTE VIOLATIONS OF INTERNATIONAL LAW, AND REQUIRE THATMR.WILLIAMS’ CONVICTIONS AND PENALTY BE SET ASIDE .......... 0... c cece cece eee ees 178 Summary of Appellant’s Argument ..................00005 178 Summary of Respondent’s Argument ...............00005. 179 Errors in Respondent’s Argument ......... 0.00. e cece eee 179 XXIII. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND AS APPLIED AT APPELLANT'S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION ........... 180 Summary of Appellant’s Argument ................0.00005 180 Summary of Respondent’s Argument ..................04. 181 Errors in Respondent’s Argument .............. 0.200 eee 182 v1 XXIV. THE CUMULATIVE EFFECT OF THE ERRORSIN THIS CASE REQUIRE THAT APPELLANT’S CONVICTIONS AND DEATH SENTENCE BE REVERSED ......... 0.0.0.0 eee ee eee ee ». ee. 183 Summary of Appellant’s Argument —S_...............-.... 183 Summary of Respondent’s Argument ..................... 184 Error in Respondent's Argument ...................0 00005 184 XXV. THE $10,000 RESTITUTION FINE WAS INCORRECTLY IMPOSED IN DISREGARD OF THE DEFENDANT’S ABILITY TO PAY .... 186 Summary of Appellant’s Argument ................0 000, 186 Summary of Respondent’s Argument ................2045. 186 Errors in Respondent’s Argument ............. 0... e eee 187 CONCLUSION...... 0...teeee eee ene nett nee ees 190 CERTIFICATE OF WORD COUNT..........0 00 cece cee cece eens 19] PROOF OF SERVICE AND DECLARATION RE: RECYCLED PAPER......... 192 Vii THIS PAGE LEFT BLANK TABLE OF AUTHORITIES Authority Page CASES United States Supreme Court Cases Atkins v. Virginia (2002) 536 U.S. 304 [122 S. Ct. 2242, 153 L. Ed. 2d 335]. 133, 137 Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] .. 14, 160 Beck v. Alabama(1980) 447 U.S. 625 [65 L.Ed.2d 392, 100 S.Ct. 2382] .. 14, 15, 54, 55, 166 Bollenbach v. United States (1946) 326 U.S. 607 [90 L.Ed 350].......... 62, 89 Booth v. Maryland (1987) 482 U.S. 49 [96 L.Ed.2d 440, 107 S.Ct. 2529] ... 157, 160 Braverman y. United States (1942) 317 U.S. 49 [87 L. Ed. 23, 63 S. Ct. 99] .. Cabanav. Bullock (1986) 474 U.S. 376 [88 L. Ed. 2d 704, 106 S. Ct. 689] .. te California v. Ramos (1983) 463 U.S. 992 1...ccceee 184 Chapmanv. California 1967) 386 U.S. 18 2.6.6. e eeee 124 Coker v. Georgia (1977) 433 U.S. 584 [97 S.Ct. 2861, 53 L.Ed.2d 982] ..... 139 Crist v. Bretz (1978) 437 U.S. 28 [98 S.Ct. 2156, 57 L.Ed.2d 24] ......... 13, 15 Davis v. Alaska (1974) 415 U.S. 308 [39 L.Ed.2d 347, 94 S.CT. 1105] ...... 165 Vill Deck v. Missouri (2005) 544 U.S. 622 [ 125 S.Ct. 2007, 61 L.Ed.2d 953] ... 124, 125, 127 Douglas v. Alabama (1965) 380 US. 415 66. eeeeee 166, 188 Downum vy. United States (1963) 372 U.S. 734 [83 S.Ct. 1033, 10 L.Ed.2d 100] cnc eee bene ee ene nee eee eee ree eee eee e ete eee nent noes 13, 15 Duncanv. Louisiana (1968) 391 U.S. 145 [88 S.Ct. 1444, 20 L.Ed.2d 491] .. 5 Enmundv. Florida (1982) 458 U.S. 782 2.0... cece eee 110, 134, 140 Estelle v. Williams (1976) 425 U.S. 501 1...eeenee 124 Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726] .... 159 Gideon v. Wainwright (1963) 372 U.S. 335 2...eee 148, 187 Holbrook v. Flynn (1986) 475 U.S. 560.0...eeeee 125 Holloway v. Arkansas (1978) 435 U.S. 475 0...ceee eee 144, 146 Hopkins v. Reeves (1998) 524 U.S. 88 6.0... eceens 133, 136 Illinois v. Allen (1970) 397 U.S.337 oo. cceeenes 120, 126 Kennedy v. Louisiana (2008) ___—saU.S.___ [171 L. Ed. 2d 525, 128 S. Ct. 2641] eneen ee ee en en en en ee ee ee eb eee eee 134, 135, 137, 138 Lockett v. Ohio (1978) 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973] ....... 134 Lowenfield v. Phelps (1988) 484 U.S. 231 [108 S.Ct. 546, 98 L.Ed.2d 568] ... 46 McCleskey v. Kemp (1987) 481 U.S. 279 00...eee 160, 161 Mickens v. Taylor (2002) 535 U.S. 162 2.0...eeeee 147 1X Payne v. Tennessee (1991) 501 U.S. 808 [111 S.Ct. 2597, 115 L.Ed.2d 720]. 155, 158 Quercia v. United States (1933) 289 U.S. 466......... 0... eee eee 66 Roper v. Simmons(2005) 543 U.S. 551 [125 S. Ct. 1183, 161 L. Ed. 2d 1] .. 133, 137 Schad v. Arizona (1991) 501 U.S. 624 oe. cece e cece cece ence eee eee nes 98 Shafer v. South Carolina (2001) 532 U.S. 36 [121 S. Ct. 1263, 149 L. Ed. 2d LTB]ceee ete eee etn e eee nes 152, 153 Simmonsv. South Carolina (1994) 512 U.S. 154 20... eeee 152, 153 Solem v. Helm (1983) 463 U.S. 277 [103 S.Ct. 3001, 77 L.Ed.2d 637] ....... 134 Stromberg v. California (1931) 283 U.S.359 ..... boc ceeeeeeuveuveneees 74 Taylor v. Kentucky (1978) 436 U.S.478 0.0.eeeee 183 Tison v. Arizona (1987) 481 U.S. 137 [95 L.Ed. 2d 127, 107 S.C. 1676] .... 108, 110, 111, 116, 132, 133, 136, 137 Turner v. Murray (1986) 476 U.S. 28 [90, L.Ed.2d 27, 106 S.Ct. 1683] .. 161, 162 United States v. Bajakajian (1998) 524 U.S. 321 [141 L. Ed. 2d 314, 118 S. Ct. 2028]...eeeeens 189 Village of Willowbrook v. Olech (2000) 528 U.S. 562 [145 L.Ed.2d 1060, 120 S.Ct. 1073] ooce eeee teen eens 160 Wheat v. United States (1988) 486 U.S. 153 2...eeeeee 148 Wood v. Georgia (1981) 450 US. 261 1.oes148 Woodsonv. North Carolina (1976) 428 U.S. 280 [96 S.Ct. 2978, 49 L.Ed.2d 944] Cee ee ee ene ne enn een e nee e een eee een en een e nes 134 Yates v. Evatt (1991) 500 U.S. 391 1... ceeeeeee nee 124 Zantv. Stephens (1983) 462 U.S. 862 [103 S.C..2733, 77 L.Ed.2d 235]. 111, Re 1 Federal Court Cases Chipman v. Mercer (9th Cir. 1980) 628 F.2d 528 2.1... 0.6... cece eee eee 165 Cordova v. Lynaugh (5th Cir. 1988) 838 F.2d 764 ......-- 1. eee ee eee eee 54 Duest v. Singletary (11th Cir. 1993) 997 F.2d 1336 .....-...+- 200s eee 67, 95 Jimenez v. Myers (9th Cir. 1993) 40 F.3d976 ©... .. 6.0 eee eee eee eee 46 McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833 ............0 002 eee 62, 89 Moore v. Kemp (11" Cir. 1987) 809 F.2d 702 2.00... cee cece eens 161 Perez v. Marshall (9th Cir. 1997) 119 F.3d 1422 2.0... cece eee ee 48 Perillo v. Johnson (5th Cir. 2000) 205 F.3d 775 ....0.e0ceceeseeceeseees 145 Phillips v. Woodford (9" Cir. 2001) 267 F.3d 966 ........ 0. cece eee eee 183 Piaskowski v.Bett (7" Cir. 2001) 256 F.3d 687 «0.0... eee cece eee eee ees 93 Powell v. United States (9th Cir. 1965) 347 F.2d 156 ..............000. 62, 89 Spain v. Rushen (9" Cir. 1989) 883 F.2d 712 0.0... 0. eeeeee 124 United States v. Bolden (D.C. Cir. 1975) 514 F.2d 1301 ............. 63, 64, 90 United States v. Dolan (3Cir. 1978) 570 F.2d 1177 «0.0... cee eee 144 Xl United States v. Echeverry (9th Cir.1983) 698 F.2d 375 ............-20000- 88 United States v. Gordon (9" Cir. 1988) 844 F.2d 1397 ............ 20 00- 63, 90 United States v. Harris (7th Cir. 1967) 388 F.2d 373 .............00005. 62, 89 United States v. Hernandez (2 Cir. 1988) 862 F.2d17.......... 0.0.2.0 eee 16 United States v. Iorizzo (2Cir, 1986) 786 F.2d 52.1.1... . eee eee ee eee 143 United States v. Lamb (9th Cir. 1973) 529 F.2d 1153 1... 0... eee eee 46 United States v. McKeon (2d Cir. 1984) 738 F.2d 26 ....... 0.0.0.0 eae ee 144 United States v. Symington (9th Cir. 1999) 195 F.3d 1080 .............68.. 28 United States v. Walker (9th Cir. 1978) 575 F.2d 209 Looe cece eee 63, 90 United States v. Whitehorn (D.D.C. 1989) 710 F.Supp. 803 ............04. 126 Vickers v. Ricketts (9th Cir. 1986) 798 F.2d 369 22...ceeee 54 Wilson v. McCarthy (9th Cir. 1985) 770 F.2d 1482 1.0.0.0... ee eee eee 120 Wright v. United States (D.C. Cir. 1957) 250 F.2d 4 ...... 00. e eee eee 62, 89 California Supreme Court Cases Cowan v. Superior Court (1996) 14 Cal.4th 367 2.0.0... 0. eee eee eee 103 Estate ofMartin (1950) 170 Cal. 657 00...cccnnn 102 Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663 ........-...-+005- 91 People v. Abilez (2007) 41 Cal.4th 472 0... ceceeee ees 150 Xll People v. Anderson (2001) 25 Cal.4th 543 2.0... 6. cee cece eres 166, 188 People v. Avila (2009) 46 Cal.4th 680 2.0.0... cece eee eee eens 187 People v. Barboza (1981) 29 Cal.3d. 375 1.0... cece cece eee eee eee 147 People v. Barnwell (2007) 41 Cal.4th 1038 1.2.6... eee cece ee eee teens 4 People v. Beardslee (1991) 53 Cal.3d 68 «2.1.2... cece eee eee eee 61, 64, 90 People v. Bouzas (1991) 53 Cal.3d 467 «2.0... eee eee e eee eee eeeeee 39, 66 People v. Boyer (2006) 38 Cal.4th 412 2.0... cece cece eee eee eee es 13, 167 People v. Calio (1986) 42 Cal.3d 639 ........ eee cece erent eee ees 89, 119 People v. Carasi (2008) 44 Cal.4th 1263 ........ 6. cece cece eee 13, 167 People v. Carey (2007) 41 Cal.4th 109 20... 1. ieee e eee eee eee 168 People v. Castillo (1997) 16 Cal.4th 1009 .......... eee eee ee eee eee eee eee 81 People v. Cleveland (2001) 25 Cal.4th 466 .........--.- eee eens 15,17, 27 People v. Coffman and Marlow (2004) 34 Cal.4th 1 ...... eee cece eee eee eee 70 People v. Coleman (1988) 46 Cal.3d 749 02.0... 0. e eee eee eee 89, 119 People v. Collins (1976) 17 Cal.3d 687 .. 0.6.0.0 cece cee eee eee ee 17, 46 People v. Compton (1971) 6 Cal.3d 55 2.0... . eeeeee 17 People v. Cox (1991) 53 Cal.3d 618 ...........0 0 eee 4, 82, 83, 120, 123, 124 People v. Croy (1985) 41 Cal.3d 1.1... ccc ccc ee ete eee 75 People v. Cummings (1993) 4 Cal.4th 1233 0.0.0.6... cece eee eee eee 81 xii People v. Dillon (1983) 34 Cal.3d 441 20... 0.ecee ees 52, 116 People v. Duran (1976) 16 Cal.3d 282 20.0.0...ceeeee 119, 123 People v. Edwards (1991) 54 Cal.3d 787 2.0...eeeee 157 People v. Falsetta (1999) 21 Cal.4th 903 2.0... eeeeee ees 62 People v. Fauber (1992) 2 Cal.4th 792 2.0...eens 52, 54, 77 People v. Fierro (1991) 1 Cal.4th 173.0...eee 151, 153 People v. Flood (1998) 18 Cal.4th 470 2.0...ceceeee 67, 95 People v. Fudge (1994) 7 Cal.4th 1075 2...cece62 People v. Geiger (1984) 35 Cal.3d 510.0... ..cccene 54 People v. Gordon (1990) 50 Cal.3d 1223 0.0...ccce 62, 66 People v. Guiton (1993) 4 Cal.4th 1116 2...eeeeee 92, 99 People v. Hardy (1992) 2 Cal.4th 86 2... 0. ceceeen ee 104 People v. Harris (1981) 28 Cal.3d 935 20...eens 61 People v. Harris (1994) 9 Cal.4th 407 20...cccee91 People v. Holloway (2004) 33 Cal.4th 96 2... 0... cece ce eens 7,8 People v. Hudson (2006) 38 Cal.4th 1002 2.0.0... cece eee eee eee 81 People v. Kelly (1992) 1 Cal.4th 495 0...eceeees 102 People v. Kirkpatrick (1994) 7 Cal.4th 988 0.0.0... cece eee eee eee ees 81 People v. Kitchens (1956) 46 Cal.2d 260 ... 0.0... cece eee eee 166, 188 X1V People v. Kramer (1897) 117 Cal. 647 0.0.00... sce cece ete eens 4 People v. Majors (1998) 18 Cal.4th 385 2.0.0...sees4,6 People v. Malone (1988) 47 Cal.3d1.....veebebe bbbb nee, 62 People v. Mar (2002) 28 Cal.4th 1201 ......-. 01. eee eee eee eee 123, 124, 127 People v. Marks (1988) 45 Cal.3d 1335 2.0.6... ee eeeee eee ees 92 People v. Morgan (2007) 42 Cal.4th 593 2.0.2... cee eee eee eens 168 People v. Nessler (1977) 16 Cal.4th 561 6.6... eee eee eee ees 45 People v. Ortiz (1990) 51 Cal.3d 975 0.0... cece cece eee teens 187 People v. Partida (2005) 37 Cal.4th 428 .... 0... 0. cece eee eee eens 72 People v. Prettyman (1996) 14 Cal.4th 248 1.00... 22... eee. 50, 78, 81, 83, 99 People v. Ramos (1982) 30 Cal.3d 553 2.0... ceceeens 85 People v. Ray (1996) 13 Cal.4th 313 60... eeeeeeeee 38 People v. Roberge (2003) 29 Cal.4th 979 2.0... cee cee eee eee eee es 81 People v. Roberts (1992) 2 Cal.4th 271 2.0... cccccceee 16 People v. Robertson (2004) 34 Cal.4th 156 2.0... .. 0. ee eee eee eee eee 49 People v. Robinson (2005) 37 Cal.4th 592 2.0... . cece eee eee eee 156 People v. Russo (2001) 25 Cal.4th 1124 20.0... occeee eee 98 People v. Scott (1994) 9 Cal.4th 331 0.0... 6cccceee eee 188 People v. Sheldon (1989) 48 Cal.3d 935 2.0... ccccee eee 119 XV People v. Silva (1989) 45 Cal.3d 604 2... 2...ecene n ee nes 151 People v. Smith (2003) 31 Cal.4th 1207 ... 02... eee eee eee 72, 167 People v. St. Martin (1970) 1 Cal.3d524 0... cece cece cece ee eeeeeeve ees 61 People v. Weiss (1958) 50 Cal.2d 535.1...ccceee eee 92 People v. Williams (1997) 16 Cal.4th 153) 2... eeeee eee 39 People v. Williams (1998) 17 Cal.4th 148 2.0.0.0... 0... eee eee eee 72, 167 People v. Wilson (1967) 66 Cal.2d 749 oo... iceeens 92 People v. Wilson (2008) 44 Cal.4th 758 0.0... 00.20... e ee eee 3, 17, 23, 30, 164 People v. Yeoman (2003) 31 Cal.4th 93 2.0.0.0... eee ee ee eee 72, 167 Williams v. Superior Court (1984) 36 Cal.3d 441 2.0... 0c eee eae, 147 California Appellate Court Cases Aceves vy. Superior Court (1996) 51 Cal.App.4th 584 ................ 144, 146 Bartosh vy. Banning (1967) 251 Cal.App.2d 378 2.0.0... cece ce eee 62, 89 People v. Hammond(1986) 181 Cal.App. 3d 463 1.00... cee eee eee eee 78 People v . Saelee, (1995) 35 Cal.App.4th 27 2... cece cee eee 188 People v. Aikens (1988) 207 Cal.App.3d 209 . 00.0... cee eee eee ee 45, 46 People v. Alcocer (1988) 206 Cal.App.3d. 951 1... 0... cece cee eee 148 People vy. Allen (1974) 41 Cal.App.3d 196 2.0.2... ccc cee eee 72 Xv1 People v. Barton (1995) 12 Cal.4th 186 ..... 2... see eee cece eee eee 54 People v. Black (1994) 23 Cal.App.4th 667 ©1100... eee cece eee eens 80 People v. Bowers (2001) 87 Cal.App.4th 722 0.1.0... 5c eee eee eee 19, 23, 24 People v. Brown (1991) 226 Cal.App.3d 1361 ......--... eee ee eeeeee eee 92 People v. Castorena (1996) 47 Cal.App.4th 1051 ...........-05. 37, 38, 44, 45 People v. Cluff(2001) 87 Cal.App.4th 991 0.2... . eee eee eee eee 188 People v. Cole (1988) 202 Cal.App.3d 1439 2.2... . ee cece eee eens 64 People v. Davis (1989) 211 Cal.App.3d 317 1.2... eee eee ee eee ees 84 People v. Doolittle (1972) 23 Cal.App.3d 14 ........... eee eens 54 People v. Forte (1988) 204 Cal.App.3d 1317 2.0... cece eee ee eee 61 People v. Franklin (1976) 56 Cal.App.3d 18 1.2... .. eee e eee ee ee ee eens 17 People v. Hill (1983) 141 Cal.App.3d 661 ............-. 2. eee eee eee ees 80 People v. Jackson (1993) 14 Cal.App.4th 1818 .......... sss eee eee eee. 123 People v. Jacla (1978) 77 Cal.App.3d 878 ........-. eee eee eee coeeseees 123 People v. Key (1984) 153 Cal.App.3d 888 ©2000... 02. eee eee eee teens 62 People v. McElheny (1982) 137 Cal.App.3d 396 ......-.-- se esse eee ee eee 80 People v. Morocco (1987) 191 Cal.App.3d 1449 «0.0.6... eee ee eee eee 88 People v. Munoz (1984) 157 Cal.App.3d 999... 0... 66. eee eee eee ee 52, 116 People v. Nguyen (1993) 21 Cal.App.4th 518 2... ...... ee eee eee eee 75, 82 XVli People v. Pennington (1991) 228 Cal.App.3d 959 2.0.0... eee eee eee 143 People v. Pitmon (1985) 170 Cal.App.3d38 ....... 0.00.0 ee eee ee ees 80 People v. Rankin (1992) 9 Cal.App.4th 430 1.0.0... 20.0.0... ee ee eee 105, 106 People v. Reeder (1978) 82 Cal.App.3d 543 2... cece eee eee 165 People v. Reynolds (1988) 205 Cal.App.3d 776 .... 0.0.00. cece cee eee 80 People v. Romero (1996) 43 Cal.App.4th 440 0.0.0... 2 eee eee 187 People v. Smith (1992) 9 Cal.App.4th 196 0... 2c.eceee 61 People v. Solis (1993) 20 Cal.App.4th 264 2.0... 0... c eeeee 79 People v. Solorzano (2005) 126 Cal.App.4th 1063 ................0.5. 39, 66 People v. Thomas (1990) 218 Cal.App.3d 1477 1.0... eeee eee 47 People v. Thompkins (1987) 195 Cal.App.3d 244 ...............00. 63, 64, 90 People v. Woods (1992) 8 Cal.App.4th 1570 1.0... 20... cee eee eee 50, 75, 82 Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1566 ...............4. 146 Trejo v. Maciel, (1966) 239 Cal.App.2d 487 0.0... eee eee eee 62, 89 Uhl v. Municipal Court (1974) 37 Cal.App.3d 526 .......... 000 e ee 144, 146 Vomaskav. City ofSan Diego (1997) 55 Cal.App.4th 905 ...........--00-- 24 Other Jurisdictions Abram v. State (S.C.. Miss. 1992) 606 So. 2d 1015 2... kee eee eee 111 XVill Alvaradov. State (Tex.Crim.App. 1995) 912 S.W.2d 199... 0.6... eee eee 160 Jackson v. State (1991) 575 So. 2d 181 2... cee eee ee eee 52, 116 Salazar v. State (2002, Tex Crim App. ) 90 S.W.3d 330 ..........5- 22 eee. 159 State v. Branam (Tenn. 1993) 855 S.W. 2d 563... 16... eee eee ees 112 State v. Carter (Utah 1995) 888 P.2d 629... 0.6... cece eee ee eens 160 State v. Corsaro (1987) 107 N.J. 339 [526 A.2d 1046] ......... 222 eee eee 45 State v. Muhammad(N.J. 1996) 678 A.2d 164 0.6... eeeeeees 158 CODES AND STATUTES Code of Civil Procedure section 613 2.1... ceceetree 24 Penal Code section 211 20... . 0. ceceeee teen ens 20 Penal Code section 1128 ...... 0... ceceeee teen teenies 24 Penal Code section 1138 ....... 0... cc cece eee eeene90 Penal Code section 12022.4 1.0... ccceee nee ees 187 Penal Code section 1259 20.0... cecece eee nnn 61, 72 Penal Code section 2933.2(a) 1.0... .. cc cece eee ttt eee ene 187 CALIFORNIA JURY INSTRUCTIONS CALJIC 2.03 2...eeeeen e tee eens 101, 102 CALJIC 2.06 2...eennent nees 101, 102 CALJIC 3.00 2...cceneen e nnn enna 53 X1X CALJIC 3.02 2.cccete eee e ene nns 70, 81 CALJIC 8.27ocnett n eee e eee n eee eneas 56, 64 CALJIC 8.84 0.00.0... e eee.n 151, 168 OTHER AUTHORITY Article 6 (2) of the International Covenant on Civil and Political Rights ..... 131 Berger, Payne and Suffering - A Personal Reflection and a Victim- Centered Critique (1992) 20 Fla. St. U. L.Rev. 21 2.0... ceeeee 162 Blume, Ten Years ofPayne: Victim Impact Evidence in Capital Cases (2003) 88 Cornell L.Rev. 257 1.0.0... cccentenenee 161 Constitutionalizing the Death Penaltyfor Accomplices to Felony Murder, 26 Am. Crim. L. Rev. 463 0.0.0.0... 0. cee cece teenies 111 Formal Opinion No. 1981-59 of the State Bar ....... 0.0.0... eee ee eee 143 Garnett, R., Depravity Thrice Removed: Using the 'Heinous, Cruel or Depraved' Factor to Aggravate Convictions ofNontriggermen Accomplices in Capital Cases (1994) 103 Yale L.J. 2471 1...eee 139 ICCPR, G.A.res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) ........... 131 LaFave and Scott, Substantive Criminal Law (1986) § 6.8 ...........05000- 73 Rosen, Felony Murder and the Eighth AmendmentJurisprudence ofDeath (1990) 31 B.C. L. Rev. 1103 2...eeeee 110 Roth and Sundby, The Felony Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell L. Rev. 446 (1985) .... 20... eee eee eee 130 Webster's 3rd New International Dictionary (1986) ............. 0.6.0 e eee 23 XX XX1 SUPREME COURTNo. 8073205 DEATH PENALTY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THESTATE OF CALIFORNIA,) ) Plaintiff and Respondent, ) ) Riverside County V. ) Superior Ct. ) No. CR49662 JACK EMMIT WILLIAMS, ) ) Defendant and Appellant. ) ) Automatic Appeal from the Judgment of the Superior Court of the State of California for the County of Riverside HONORABLE TIMOTHY HEASLETT , JUDGE REPLY BRIEF FOR APPELLANT JACK E. WILLIAMS ARGUMENTS GUILT PHASE ISSUES I. BY IMPROPERLY DISMISSING JUROR #12 FOR PURPORTED MISCONDUCT, THE TRIAL COURT VIOLATED APPELLANT’S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTRIGHTSAS WELLAS HIS RELATED RIGHTS UNDER THE CALIFORNIA CONSTITUTION SUMMARYOFAPPELLANT’S ARGUMENT In his openingbrief, appellant noted thatit is a Sixth Amendmentviolation 1 to dismiss a juror without good cause. Here,juror #2 reported to the court that juror #12 made a remarkto the effect that the truth about the robbery of Mr. Brodbeck at the Taco Bell lay in theparking lot and that everyone else wasjust lying. Juror #12 denied making the remark, no other juror heard it and juror #2 admitted it was ambiguous. Nevertheless,the trial judge found juror #2 to be more credible than juror #12, decided (with very little investigation) that the comment attributed to juror #12 was not ambiguous, and dismissed juror #12 for misconduct. Even conceding that the remark was made (whichthe defense does not), the purported remark does not constitute misconduct. It was not an improper reference to the evidenceor the merits of the case. It was, instead, merely a passing commentary on the general state of the conflicting evidence ofthe sort this court has declined to characterize as misconduct. Under these circumstances, thetrial court abused its discretion by improperly dismissing a sitting juror. More importantly, it appears that race played somerole in the dismissal decision . Juror #12 was oneofonly twoblack jurors on the panel.’ Earlier in the trial, Juror #12 outspokenly complained that only black witnesses were shackled in the courtroom. The white witnesses were not. Despite this obviousdisparity of treatmentin plain view ofall the participants, the trial judge was apparently unawareofit until juror #12 raised the issue. Moreover, whenthecourt finally madeits official inquiry into the matter (30 R.T. 4062-4099,4140-4149, 4205- 4212), the focus was on the way Juror #12 raised the issue rather than on the actions ofthe sheriff’s deputies whosevirtually unfettered discretion in shackling ! Both black jurors were removed before the verdict. 2 witnesses actually caused the problem. In context, it appears that the misconduct ruling was merely a vehicle for dismissing an obstreperousjuror rather than an appropriate sanction for an actual transgression. The result was to deprive appellant of half of the African Americans on the jury. The other half would be removedlater. (See IssueII infra.) Thetrial court’s error in improperly dismissing a sitting juror for misconduct compelsreversal of all of appellant’s convictions. (Appellant’s opening brief at pp. 127-151.) SUMMARYOFRESPONDENT’SARGUMENT Respondenturgesthat there wasnoerror because the juror failed to follow the court’s direction not to form or express an opinion aboutthe case until all the evidence had been presented and deliberations had begun. Respondent contends that the juror’s commentabout the parking lot was in fact a commentary on the merits of the case and thus violated the judge’s admonition notto discuss the case. Further, respondent asserts juror #12's behavior and demeanor provided sufficient evidenceforthe trial court to excuse her despite her assertion that she could remain fair and impartial. Finally, since the defense objection to her discharge at trial was based on Penal Code section 1089, any federal Constitutional claims are waived for appeal. (Respondent’sbrief at pp. 102-135.) ERRORS INRESPONDENT’SARGUMENTS Standard ofReview Recently, this court reaffirmed that dismissinga sitting juror because of an asserted inability to perform the juror function properly is not reviewed under an abuse ofdiscretion standard. Rather, the dismissal for inability to properly perform the juror function must meetthe higher standard of a demonstrablereality. (People y. Wilson (2008) 44 Cal.4th 758, 821.) Indeed, in People v. Barnwell (2007) 41 Cal.4th 1038 this court explained that standardstating, “To dispel any lingering uncertainty, we explicitly hold that the more stringent demonstrable reality standard is to be applied in review ofjuror removalcases. That heightened standard morefully reflects an appellate court's obligation to protect a defendant's fundamental rights to due process andto a fair trial by an unbiased jury.” (Jd., at p. 1052. ) While respondent acknowledgesthis standard of review (respondent’s brief at p. 103-104), a critical review of respondent’s arguments revealsthat they are premised primarily on the lesser discretionary standard concerning whetheror not there was evidence to support the trial court’s determinations. No commentary on the merits ofthe case As this Court explained in People v. Majors (1998) 18 Cal.4th 385, 420-425, mere conversation among jurors outside the jury room, even if it involves some aspect of the case does not necessarily prove misconduct. Indeed, more than century ago this Court observed, “‘[t]he law does not demandthat the jury sit with the muteness of the Sph[i]nx, and whenjurors are observedto be talking among themselves it will not be presumedthat the act involves impropriety, but in orderto predicate misconductof the fact it must be madeto appearthat the conversation had improperreferenceto the evidence, or the merits of the case.’ (People v. Kramer(1897) 117 Cal. 647, 649.)” (d., at p. 425.) Thus, comment on matters of general knowledge even though the comments mayhighlight an aspectof the case is not misconduct. (See People v. Cox (1991) 53 Cal.3d 618, 693, 696.) Juror #12's allegedly improper commentwasto the effect that “the only truth lied in the parking lot and that everyoneelse wasjust lying.” (31 R.T. 4574.) In his openingbrief, appellant pointed out that even ifjuror #12 made that exact comment - a matter not at all clear from the evidence - the remark does not constitute misconduct. The comment does not appear to favor the witnesses from either side. More importantly, however, the observation does not appear to be anything more than a general commenton an evidentiary situation apparenttoall the jurors. That is, because of the discrepancies in prosecution witness testimony about what happened,notall the prosecution witnesses could be correct. Asappellant explained in his opening brief, Mr. Brodbecktestified that he wastold to get out of the car and then frisked. Several items were taken from him. (34 R.T. 4472, 4481.) Then, as he ran towards the Taco Bell, he slipped, heard a single shot and heard somethinglike a bullet whistle by him. (34 R.T. 4472-4473, 4483-4484.) Prosecution witness Lyonstestified that although he wasat the scene, he did not watch what happened. (19 R.T. 2689.) He saw Williams walk towardsa car, then he heard a couple of shots and everyone, including Lyons and Gonzales, started running. (19 R.T. 2692-2693.) Prosecution witness Weatherspoon testified that he was not aware that Mr. Brodbeck wasfrisked or searched and did not rememberif James Handy approached Mr. Brodbeckatall. He did not see Handy touching the manor take anything from him. Further, although Weatherspoon ended up with Brodbeck’s keys and openedthetrunk ofthe vehicle, he did not rememberifhe did that on his ownor if someonedirected him to do so. (31 R.T. 4171.) Most importantly, although he heard single shot, he did not see how the shot wasfired. Prosecution witness James Handytestified that he frisked Mr. Brodbeck and took some items from him. He walked away, however, and did notsee the shooting. (29 R.T. 3945.) Deputy Aguirre said he found a single shell casing in the parking lot near where Mr. Brodbeck’s car had been. (33 R.T. 4436-4437.) Given the discrepancies in testimony about how manyshots werefired and what took place during the incident,it is abundantly clearthat notall the prosecution witnesses could be factually correct. Evenif that were not so, as juror #2 recognized, the statement attributed to juror #12 is at best ambiguous. (39 R.T. 4689-4691.) At worst, it was mere “speculation” on the weight of the conflicting evidence at that point in trial; a type of speculation that this court has declined to categorize as misconduct. (People v. Majors, supra, 18 Cal.4th at pp. 424-425.) Respondent attemptsto sidestep the problem of general juror commentary by parsing juror #12's statement. Respondenturges that while the portion of the phrase“[t]he truth lies in the parking lot” may have been somewhat ambiguous, the rest of the phrase “everyone else was just lying” is not. The latter shows that juror #12 made up her mind aboutthe credibility of witnessesprior to jury deliberations. (Respondent’sbrief at p. 134.) It should be noted, however, that the tape of appellant’s statements to the police were played before juror #12 was challenged. (Compare, 35 R.T. 4521- 4521 [tape played] with 37 R.T. 4573 et seq. [juror #12 challenged becauseofher commenton the incident in the parking lot].) Thus juror #12's comments would apply to appellant’s own statements as well. That is, juror #12's comment was not inherently biased against the prosecution witnesses nor against defendant. Moreover,as appellant pointed out above, because the testimony concerning what actually happenedin the parking lot was so conflicting, not only juror #12, but all of the jurors would have to conclude that some of the prosecution witnesses were lying, or at the very least, grossly mistaken. Therefore, far from being an opinion on the merits or the credibility of particular witnesses, juror #12's comment was merely a general observation on the conflicting evidence in the prosecution’s case. More importantly, nothing in the record suggests that juror #12's remark should be parsed in its phraseology as urged by respondent. The remark was NOT a commentfavoring one side’s witnesses over the other side’s witnesses, nor wasit a comment showingthat juror #12 made up her mind concerningthe credibility of any particular witness vis-a-vis any other witness. Indeed, when queried by the judge, juror #12 told the court she could remain impartial even though she had been singled out twice for examination. (48 R.T. 4625.) Therefore, contrary to respondent’s arguments, the comment does not show that juror #12 formed an opinion concerning which witnesses were telling the truth. Taken in its entirety, Juror #12's statement wasthat the truth concerning what actually took place in the parking lot is impossible to discern from the conflicting welter of all the various witnesses’ testimony becauseall of the witnesses could not possibly be telling the truth. This court’s decision in People v. Holloway (2004) 33 Cal.4th 96,is instructive on this issue becauseit deals with a similar factual scenario and highlights the errors in respondent’s arguments. In Holloway, Juror #3 sent two notes to the court asking to see pictures of the two decedents while they werealive. During an interview between the court and juror #3 after the second request, the juror explained that he wanted to see the pictures because he was having dreams about the decedents. The judge ultimately denied the request, and told juror #3 that the court assumed that the juror had not discussed this matter with other jurors. Juror #3 replied that he had not. Thereafter, the judge did not specifically direct the juror not to discuss the request with other jurors, although as the prosecutor pointed out, that admonition couldcertainly be implied from the judge’s question. Subsequentto the interview, an alternate juror reported that juror #3 spoke to her about the interview noting that he thought he had madea reasonable requestof the court. No other jurors were present. Wheninterviewed again, juror #3 deniedinitiating contact with other jurors stating instead that other jurors asked him whatthe interview with the court was about and hetold them. He thought there were three or perhaps four other jurors present. Nevertheless, juror #3 said he could be impartial and that nothing that happenedin the interviews would affect him in his deliberations. The juror was retained on the jury. (/d., at pp. 123,124.) On appeal, the defense arguedthat juror #3 should have been dismissed and that his retention on the jury violated the defendant’s Sixth Amendmentrights. In support ofits argument, the defense claimedthat juror #3 exhibited two forms of misconduct: “First, in discussing the case with [the alternate juror], he violated his oath and the admonition not to so do. ... Second[], [Juror # 3] attempted to conceal his misconductby asserting, completely contrary to [the alternate's] representation, that he did not approach anyoneaboutthis, but was asked himself.” (/d., at p. 124.) These are virtually the same arguments that respondent makesin supportofits claim that juror #12 was properly dismissed in this case. (See Respondent’sbrief at pp. 130-134 .) In Holloway, however, this court found no Sixth Amendmentviolation in keeping Juror #3 on the jury. The Court noted that while the version of events provided bythe alternate and juror #3 were superficially inconsistent, it may well have been that juror #3 madethe specific remark only to the alternate but he discussed the matter with other jurors who were present soon after. Thus, the two versions could be reconciled. Although this Court did not point to any specific portion of the record to support that conclusion,it found the explanation reasonable under the circumstances. Further, since juror #3 claimed that he could remain impartial there was no demonstrablereality that would support a dismissal. (/d., at pp. 125-126.) Since the facts of this case parallel the facts of Holloway, the sameresult should obtain. There was no demonstrablereality of inability to perform as a juror that required the dismissal of Juror #12. Race Aside from the foregoing, however, there was an additional factor at work here; the factor of race. As appellant pointed out in his openingbrief, juror #12 was singled out twice for interrogation. The first time she was questioned for being outspoken in her denunciation ofofficial conductby the state in shackling only black witnesses. Indeed, the state’s conduct was so improperthat not only did the trial judge concedetheerror, he took at least some remedial action to correctit by instructing the jury. (30 R.T. 4097-4100.) Thetrial judge simply didn’t recognizetheracially disparate treatment of witnesses whenit occurred. (30 R.T. 4073, 4075.) It had to be pointed out to him by a black juror. (30 R.T. 4075.) Once he recognized it, however, the judge apologized to juror #12 for failing to have noticed the problem and admitted that he had beeninsensitive to the witness issue. (30 R.T. 4074.) Nevertheless, although this concededly improper conduct wasinitiated by sheriffs’ deputies, there was no censure of state employees,or at least none that was conveyedto the jury. Thetrial court’s official inquiry into misconduct was conducted ofthe jurors - not the deputies - and in particular the black juror who raised the issue. Further, juror #12 was the only juror singled out for examination concerning her conduct (30 RT 4072) andshe wasspecifically admonishednotto let the incidentaffect her ability to be impartial. (30 R.T. 4074-4075.) By comparison, although jurors #5, #6, #7, and perhaps #10, were at lunch together and apparently discussed the incident where strong words were exchanged between defendant Dearaujo and witness James Handyin the courtroom,their shared reactions and expressionsof discomfort (30 R.T. 4080)did not merit an examination by the court, an admonition not to discuss the case or an admonition to remain impartial. Under these circumstances, the unmistakable message from the court wasthat it was not the errors of court officials or white jurors that caused concern, butrather the fact of the complaint from a black juror. Juror #12's second transgression was for making an ambiguous comment about the state of the case, a commentthat she denied even making. Her outspokenness obviously made an impression on the court. She was one of only two empaneledblack jurors in this case.” Dismissal for the innocuous comment made here was not only improper, but served asa signal that criticism from a black juror wasnot favored, or , as juror #12 herself phrased it under questioning by the trial judge, “an opinionated person [] sometimes[] rubs people the wrong way.” (38 R.T. 4625.) Moreover, since no juror other than juror #2 even professed to hear ? The dismissal ofjuror #10, the only other black juroris discussedat length in Issue II, infra. 10 the purported remark,certainly it did not taint the entire jury. It is noteworthy that when the black witnesses were shackled in court and the white ones were not, that concededly improper courtroom misconduct drew only a mild cautionary instruction to the jury from the judge concerning the impact of shackling. The discussion among white jurors about their collective fear and discomfort over strong wordsin the courtroom drew nojudicial examination and no admonition at all. However, thetrial court’s sanction for a mere passing comment on the state of the conflicting evidence - and an ambiguous commentat that - was dismissal. Thus, in context, it appears that the misconductallegation against juror #12 was more ofa vehicleto get rid of an obstreperous black juror rather than an appropriate sanction for any wrongdoing. That the judge maynot have been consciously aware ofthebias in his courtroom until it was pointed out to him does not makethe biasanylessreal. Indeed, as appellant will explain in more detail in Issue II, the dismissalof all the black jurors reduced the diversity of the jury panel at guilt phase. This deprived the jurors as a whole of the benefit oflife experiences similar to that of the defendant and fatally compromisedthe penalty trial where the prosecution invited the jury to makelife-worth comparisons between the decedent, a highly accomplished, attractive, white female and the defendant, a very young black man of modest accomplishment. Respondent doesnot confront the race problem directly, urging instead that race wasnot the basis for the defense objection to juror #12's dismissal. Thus, appellant waived the matter on appeal. (Respondent’s briefat p. 130.) Respondentignores, however,that the first time the question of dismissing Juror #12 came up, the prosecution movedto exclude juror #12 on the groundthat 11 she could not be fair because she complained aboutthe shackling of African American witnesses. Further, the prosecution expressed concernedthat juror #12 wasprejudiced against it because there were only two black witnesses and both appeared in restraints. (31 R.T. 4140-4143,see also 31 RT 4209.) Defense counsel Wright objected, noting that Juror #12 never expressed any bias against the prosecution. To the contrary, she stated that she could befair. It was juror #7 whoinstigated the whole issue and even juror #7 admitted that juror #12 was merely respondingto his inquiry. (31 RT 4146-4147; see also appellant’s openingbrief at p. 140.) Additionally, when the incident involving juror #12's comment on the Taco Bell parking lot evidence wasreportedto the court, the prosecutor suggestedthatit wasnot necessary to make an inquiry ofjuror #12, but if an inquiry was to be made, then it should be limited to whether she madethe statements attributed to her by juror #2. The prosecution recommendedthere not be an inquiry as to whether juror #12 was ableto be fair and impartial. (38 R.T. 4617.) The prosecutor then urged that juror #12's comments amounted to misconduct and that her “previous comments concerning the custodial status of witnesses and alleging that that was due to the fact that the jurors [sic - witnesses] were black” showedbias against the prosecution. (38 R.T. 4622.) Therefore, contrary to respondent’s contentions, race was one ofthe primary bases for the prosecution’s request that juror #12 be dismissed; the prosecutor equated juror #12's displeasure with the unequal treatment of black prosecution witnesses with bias against the prosecution. Thus, these facts demonstrate that the issue of race was squarely beforethe trial court at the time the court madeits ruling dismissing juror #12. 12 Constitutional Prohibitions Were Violated Respondentfinally asserts that there is no Constitutional violation at issue here. The defense objected to juror #12's dismissal on the groundsthatit violated California Penal Code section 1089. That the penal code section doesnot violate any Constitutional principles and since the statute itself was not violated, there could not be any federal Constitutional violation. (Respondent’sbrief at pp. 134- 135.) Nevertheless, respondent implicitly concedesthat if there was a violation of Penal Codesection 1089, that error implicates appellant’s federal Constitutional rights as well. Even if that was notthe case, the facts are not in dispute and the federal Constitutional legal principles are essentially the sameas the trial court was asked to apply regarding Penal Code section 1089. Therefore, appellant’s Constitutional claims are preserved even if presented forthefirst time on appeal. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17; see also People v. Carasi (2008) 44 Cal.4th 1263, 1288, fn. 15.) Moreover, excusing an empaneled juror without good cause deprives a criminal defendantofhis right to a fair trial under the Fifth and Fourteenth Amendment DueProcessclauses as well as the Sixth Amendmentrightto trial by jury. (Cf. Crist v. Bretz (1978) 437 U.S. 28, 35-36 [98 S.Ct. 2156, 2160-2161, 57 L.Ed.2d 24]; Downumv. United States (1963) 372 U.S. 734, 736 [83 S.Ct. 1033, 1034, 10 L.Ed.2d 100].) Indeed, the right to a trial by jury in criminalcases is such a fundamental feature of the justice system thatit is protected against state action by the Due Processclause of the Fourteenth Amendment. (Duncan v. Louisiana (1968) 391 U.S. 145, 147-158 [88 S.Ct. 1444, 1451, 20 L.Ed.2d 491].) It also violates the Eighth and Fourteenth Amendmentrequirementsforreliability in the guilt and 13 sentencing phasesofa capital trial. (Cf. Beck v. Alabama (1980) 447 USS.625, 638, 643 [65 L.Ed.2d 392, 403, 406, 100 S.Ct. 2382].) Moreto the point, “Ce]xclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment wasdesigned to cure.” (Batson v. Kentucky (1986) 476 US. 79, 86.) Thus, for the reasonsset forth above and in appellant’s openingbrief, the trial court’s error in dismissing juror #12 violated not only the proscription of Penal Code section 1089, but appellant’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights as well. Appellant’s convictions and sentence mustbe reversed. 14 Il. BY IMPROPERLY DISMISSING THE HOLDOUT (AND ONLY REMAINING) BLACK JUROR, JUROR #10, THE TRIAL COURT VIOLATED APPELLANT’S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTRIGHTS AS WELL AS HIS RELATED RIGHTS UNDER THE CALIFORNIA CONSTITUTION SUMMARYOFAPPELLANT’SARGUMENT As appellant noted in hisopening brief, excusing an empaneled juror without good cause deprives a criminal defendantofhis right to a fair trial under the Fifth and Fourteenth Amendment DueProcessclausesas wellas the Sixth Amendment rightto trial by jury. This is so because every criminal defendant is entitled to a verdict by the jury originally empaneled. (Cf. Crist v. Bretz (1978) 437 U.S. 28, 35- 36 [98 S.Ct. 2156, 2160-2161, 57 L.Ed.2d 24]; Downum v. United States (1963) 372 U.S. 734, 736 [83 S.Ct. 1033, 1034, 10 L.Ed.2d 100].) Indeed, the right to a trial by jury in criminal cases is such a fundamentalfeature of the justice system that it is protected against state action by the Due Process clause of the Fourteenth Amendment. (Duncan v. Louisiana (1968) 391 U.S. 145, 147-158 [88 S.Ct. 1444, 1451, 20 L.Ed.2d 491].) The error in wrongfully excusing an empaneledjuror also violates the Eighth and Fourteenth Amendment requirements for reliability in the guilt and sentencing phasesofa capital trial. (Cf Beck v. Alabama (1980) 447 U.S. 625, 638, 643 [65 L.Ed.2d 392, 403, 406, 100 S.Ct. 2382].) Moreover,special caution is required when the juror is dismissed during deliberations. (Cf. People v. Cleveland (2001) 25 Cal.4th 466.) Even greater 15 appellate scrutiny is required when the dismissed juror is not only a holdout juror but the only remaining minority juror in a cross racial prosecution. (Cf United States v. Hernandez (2 Cir. 1988) 862 F.2d 17, 23.) Here,all of those conditions existed. Nevertheless, the causes for dismissal ofjuror #10 cited by thetrial judge were either unsupported by the evidence or dismissal was vastly out of proportion to the juror’s purportedactivities during deliberation. Further, the investigation undertaken by thetrial judge was deficient in a critical respect: he failed to make any inquiry of the offending juror before dismissing her and failed to take any action (or even investigate) her allegations of misconduct by other jurors during deliberations. Thetrial judge simply presumed the worst based on the allegations other jurors made about juror #10 and acceded to their demands that she be dismissed. Under these circumstances, the error compels reversal of all of appellant’s convictions. SUMMARYOFRESPONDENT’SARGUMENT Respondent urgesthatthe trial court properly excused juror #10 because she wassleeping during deliberations and because she refused to properly deliberate with the other jurors. Further, the trial court’s determination was made after a full inquiry of the other jurors. (Respondent’s brief at pp. 135-168.) ERRORS INRESPONDENT’SARGUMENTS Asappellant explained in his opening brief, because the rightto a trial with the originally empaneledjury is of Constitutional dimension, the discretion of the trial judge to dismiss sitting juror is severely limited. (People v. Roberts (1992) 2 Cal.4th 271, 324 - 325.) The court must make a determination whether good cause exists to discharge the juror and the reasons for discharge must appearin the record. (Ibid.) In this regard, the inability to perform the juror's functions must appear as a 16 "demonstrable reality." (People v. Collins (1976) 17 Cal.3d 687, 696.) In People v. Cleveland, supra, 25 Cal.4th 466, Justice Werdegar explained that because of the need for additional protection of an accused’s constitutional right to a jury trial, “we more accurately have explainedthat, to affirm trial court's decision to discharge a sitting juror, "[the] juror's inability to perform as a juror must ‘appearin the record as a demonstrable reality.' " [Citations.] This language indicates a stronger evidentiary showing than mere substantial evidence is required to support a trial court's decision to discharge a sitting juror. Therefore, a trial court would abuseits discretion if it discharged a sitting juror in the absence of evidence showing to a demonstrable reality that the juror failed or was unable to deliberate. (People v. Cleveland, supra, 25 Cal.4th at pp. 487-489 (conc. opn. of Werdegar,J., [Emphasis added] see also People v. Wilson, supra, 44 Cal.4th 758, 820.) Accordingly, the purported good cause mustbe suchthatit "actually renders [the juror] ‘unable to perform his duty."" (People v. Compton (1971) 6 Cal.3d 55, 59.) Perhaps mostsignificantly, however, in making this judgment "[t]he court must not presume the worst." (People v. Franklin (1976) 56 Cal.App.3d 18, 26.) No “Demonstrable Reality” That Inattentiveness Affected Jury Deliberations Respondentclaims that juror #10 slept during deliberations and that sleeping was an appropriate factor upon whichthe judge could base his decision to dismiss her. There are two problems with respondent’s argument. First, the evidence of inattentivenessis, at best, marginal. Second,in context, even conceding inattentiveness, there is absolutely no showing concerning how anyinattentiveness might have affected jury deliberations. 17 Turningto the first problem,there is preciouslittle evidence to support the trial court’s conclusionthat juror #10 actually slept during deliberations. Juror #2 stated that juror #10 was asleep because she closedher eyes, curled up in her chair and pulled a cap down overthe top of her face. (See,e.g., 45 R.T. 5379.) Other jurors stated that juror #10 appeared to have her eyes closed at times (see e.g. 45 R.T. 5416-5417 [Juror #11 said that juror #10 hadher eyes closed and could have been sleeping]. ) Nevertheless, as appellant pointed outin his opening brief (at pp. 166-169), even though all of the jurors sat around the same table, when queried directly by the trial judge about whether juror #10 wasactually sleeping, NO juror other than #2 would state unequivocally that he or she saw juror#10 asleep. ; Asto the second problem, no juror said that this inattentiveness occurred on more than one occasion, and nojuror explained what transpired during this period of inattentiveness. Indeed, Juror #1 was the most expansive on the subject and he noted merely that this period lasted for only 10 tol15 minutes (during which time only two jurors spoke) andhe only observed it on one day. (45 RT 5376.) Appellantnotes that in this case, the jurors had been deliberating - anew after the dismissal of another juror for illness - for approximately a day and half before the issue was presented to thetrial judge. (45 RT 5376.) Moreover,priorto that evolution, the original jurors [including juror #10] had been deliberating the case for approximately seven days. (18 C.T. 5055, 5064.) Thus, there is NO evidence showing that Juror #10 wasasleep for any substantial amountof time or that she missed any significant portion ofjury deliberations. This absence of evidence showingthat juror #10 missed any significant deliberations is absolutely fatal to 3 Interestingly, it was juror #2 whoinstigated the complaints against both juror #10 and juror #12. 18 respondent’s argument. A similar situation occurred in People v. Bowers (2001) 87 Cal.App.4th 722. In that case, the court observed: “Here, only one juror said anything about Juror No. 4 sleeping during deliberations. Thetrial court did not ask the other jurors aboutit during its investigation. In a period of several days, Juror No. 4 appears to haveslept only a very brief time. There was no evidence concerning what was happening in the jury room whenheslept. Even deferring to the trial court's factual finding Juror No. 4 slept, the bare fact of sleeping at an unknown timefor an unknown duration and without evidence of what,if anything, was occurring in the jury room at the time is insufficient to support a finding of misconductor to conclude the juror was unable to perform his duty. (See People v. Daniels, supra, 52 Cal.3d at p. 864 [misconduct must be serious and willful].)” (Bowers at p. 731.) Respondentattempts to overcomethis evidentiary hurdle by arguing that the trial court properly dismissed juror #10 for purportedly nodding off duringtrial on occasion andparticularly during the playing of the tape of the defendant’s statement to the police. (Respondent’s brief at pp. 158-163.) It is noteworthy that respondent choosesto focus its argument on the defendant’s statement to the authorities. Not only is that statement one ofthe centerpieces of the prosecution’s case, but as explained below, the manner in which it was considered demonstrates why the unjustified dismissal ofjuror #10 denied appellanta fair trial. In addition to the tape of the defendant’s statementto the authorities played at trial, there was a written transcript of the tape. (Prosecution Exhibit 68.) That transcript was specifically provided to all jurors. (45 R.T. 5423.) More importantly, 19 juror #2 told the court that during deliberations,juror #10 was holding the transcript of the police interview andtold the other jurors “my lawyer could put holes throughthis.” (45 R.T. 5384.) Thus, contrary to the inference respondent wishesthis court to draw from Juror #10's purported dozing, juror #2's observation shows beyondcavil that juror #10 was fully aware of the content ofthe defendant’s statement. The truly interesting portion ofjuror #2's observation, however,is juror #10's claim that her lawyer could poke “holes”in the statement, an assertion corroborated by Juror #4. (45 R.T. 5398.) Juror #10's assertion about the statement demonstrates that she had very serious reservations aboutthe credibility of defendant’s statement despite its admissibility. A review of the interrogation (Prosecution Exhibit 68), shows that manyofthe defendant’s seemingly inculpatory answers were in responseto police questionsthat used legal or value laden terms the consequence of whichthe defendant probably did not understand. For example, during the interrogation, District Attorney Pacheco pressed Williams aboutthe meaning of the word “carjack”, and Williams conceded that he meant robbing. (People Exh. 68 at p. 53.) Steve McNairtestified however, that when he, Holland, Weatherspoon and appellant wentoutspecifically to "carjack" a vehicle, he thought they were simply going to hot-wire the car and take it. (31 RT 4275.) While hot- wiring a vehicle outside the presence of the owner would encompass an unlawful taking, it would not encompassthe elementsof “robbery” within its legal definition of a taking of property by force or fear from the presence of the owner. (See Penal Code section 211.) Absentlegaltraining,it is highly doubtful that a person like the defendant, who had limited education, would have an appreciation forthe legal distinction between the “force and fear” requirement for robbery and the 20 requirements for a mere taking of property belonging to another. More importantly for an evaluation of the credibility of the defendant’s statement, nowherein the interrogation did the District Attorney ever clarify that distinction. Moreover, by any measure, the authorities conducted the interrogation in a hostile and abusive manner.* More importantly, juror #10 clearly realized the primary purposeofthe interrogation was to get an incriminating statement and only incidentally to get an accurate picture of what took place. Juror #10 was obviously 4 Throughoutthe interrogation, the authorities kept telling the defendant he waslying. For example, one officer told the defendant “ I’ve been here since nine o’clock yesterday morning and I don’t want any bullshit. ’p. 8; I’m not goingto sit here and play games”p 8; “Go ahead and dig yourself a hole partner, go ahead. Go ahead andlie to me.” p. 10; “Naw that ain’t the wayit happened. Who’d yougive the gun to? [I] wannna see how much you’re gonnalie tome.” p. 10; “Jack, you’re not being truthful partner.” p. 11; ““ We know where the gun the gun went, we know youhadit. You fired at that guy when he took off runningat the taco stand. He’s gonna eyeball you and you’re goin down. Now we want the gun. Don’t sit there an lie to us anymore”p. 12; “Hah. If you’re gonna keep lyin, you’re gonna keep diggin yourself a hole partner and then when the times to come and you go to court, this dude’s lyin, that’s all this dude doesislie. [para] He don’t wanna comeclean about nothin. Even whenthe facts are presented to him, whenI tell you what happened, you don’t wannatell methetruth.[para] If youlie to us now, when you goto court, they just ask us what you said and we can say yousaidthis, he said this, he said this, but we provedit all a lie. Anything you say in court, they gonnathink that you’re lying there too. [para] Even when you are tellin the truth they’re gonna figure you’re lyin so nowisthetimeto tell the truth right nowsee...” p. 20.; “Stand up man”p. 29 ; “See why don’t you just comeout with it, why don’t youjusttell us, what, what do you gotta play these games for?” p. 31; “I'll tell you what Jack, I hope we don’t find out no more lies.” p. 32; “Here’s my, here’s my pen, here’s my pad and I’m gonnawrite Jack lied again and I’m gonnagiveit to the judge.”p. 32; The foregoing is a sampling of the police harassment and_ hostility containedin just the first one-third of the interrogation. 21 disgusted at the police tactics used to intimidate an 18 year old boy who never finished high school. Moreover, as a memberofa racial minority that has historically suffered from police intimidation, perhaps juror #10 appreciated how this type of intimidation would result in a statement that was notentirely accurate and reflected the police view of what happenedrather than thereality of the situation. Indeed, her confident assertion that her lawyer could poke “holes”in the interrogation suggests precisely this view. (45 R.T. 5398.) In that regard, the admonition not to bring race into deliberationsand the refusal to entertain any discussion of what it waslike to grow up black person in Moreno Valley deprived the jury of a dissident but knowledgeable voice concerning the true meaning of the purported organizational meeting at Natalie Dannov’s house aswell as the credibility of appellant’s statement. Additionally, juror #10 was apparently not shy about asking for testimony to be reread when shedid not recall it or her recollection differed from that of the other jurors. (45 RT 5412-5413.) Thus, it does not appear that juror#10 missed any evidence ofsignificance. Moreover,if the occasional “nodding off’ duringtrial wasso seriousthatit justified the removal of a deliberating juror, it is a mystery whythetrial judge did not discuss the issue with counsel on the record or remove juror #10 for inattentiveness whenit occurred. Instead, thetrial court’s most aggressive attempt to deal with the problem at trial was a request to the bailiff to offer juror #10 a glass of water and to remind not only juror #10, but jurors #11 and #12 as well, that they needed to sit up and pay attention during the playing of the tape. (35 R.T. 4526; 45 R.T. 5359-5360.) Respondent does not even discuss, let alone challenge the verdict based on the possibility that these other jurors also slept during the 22 playing the tape. In any event, under these circumstances,it appears that any instances of inattentiveness were relatively minor and entirely consistent with the normal humanfrailties experienced in any lengthy and complextrial. For these reasons andthoseset forth in appellant’s openingbrief, the trial court’s factual determination that juror #10 slept is insufficient to show as a “demonstrable reality” that juror #10 was unable to perform her duties. (People v. Wilson, supra, 44 Cal.4th at p. 820.) No “Demonstrable Reality” That Juror #10 refused to Deliberate Thereal crux of respondent’s argumentis that juror #10 refused to deliberate. Respondent’s argumentis based on the claim that juror #10 expressed a fixed conclusion during deliberations and refused to consider other points of view; that she refused to speak to other jurors, and finally that she attempted to separate herself physically from the other jurors. (Respondent’s brief at pp. 164-167.) Before examining the facts, however, it is important to examine the whole notion of what it means to deliberate. “(F]ormal discussion is not necessarily required to reach a decision or conclusion by deliberation. In a given case to "deliberate" means "to ponderor think about with measured careful consideration and often [but not necessarily] with formal discussion before reaching a decision or conclusion.’ (Webster's 3rd New Internat. Dict. (1986) p. 596.)” (People v. Bowers, supra , 87 Cal.App.4th at p. 733.) Moreover, as the Bowers’ opinion pointed out, “[i]t is not uncommonfor a juror (or jurors)in a trial to come to a conclusion aboutthe strength of a prosecution's case early in the deliberative process andthen refuse to change his or her minddespite the persuasive powersof the remaining jurors. The record suggests that, after listening to all the evidence in court and observing the witnesses, Juror No. 4 23 determined they lacked credibility and were lying.” (/d., at p. 735.) Indeed, Code of Civil Procedure section 613 states in pertinent part: "When the case is finally submitted to the jury, they may decide in Court orretire for deliberation ...." Clearly, this statute does not require group deliberations. Instead, each juror may conductdeliberationsindividually. (See Vomaskav. City of San Diego (1997) 55 Cal.App.4th 905, 910-911.) Similar to Code of Civil Procedure section 613, Penal Code section 1128 permits a jury to decide a case in the courtroom without retiring’ and thus without formal group deliberations. (People v. Bowers, supra , 87 Cal.App.4th at p. 735.) Moreover, because “i]ndividuals acquire different methods of processing information and decision making based on their background and experiences, it is unrealistic to expect each person or each jury to deliberate and cometo a conclusion in the same fashion.” (d., at p. 735.) Given this legal background, the facts of this case simply will not support a determination that Juror #10 refused to deliberate. As appellant pointed out in his openingbrief, the evidence showsthat even before the jury foreman complained about juror #10's behavior, juror #10 specifically asked the court what it meantto deliberate. Juror #10 wanted to know what happenedif she did not have any further comments - would that situation constitute a failure to deliberate? (45 RT 5311.) The court respondedthat there should be somegive and take. (45 RT 5311.) Juror #10 then asked what happened if there was an impasse(or as she phrasedit a “Jockdown”) between her and the other jurors and she simply had nothing moreto ° California Penal Code section 1128 providesin pertinent part: “After hearing the charge, the jury may either decide in court or mayretire for deliberation.” 24 say. (45 RT 5311.) The judge respondedthatif she told the jurors that "I've made up my mind and I'm not going to changeit," that situationstill constituted deliberation. (45 R.T. 5311-5312.) Even though the judge later told juror #10 that he might have misled her, he never took any action to answer her question or further explain what it meantto deliberate. The initial complaint by the jury foreman epitomized the clash in the jury room . Whenthe jury foreman actually reported juror #10's behavior to the court, he complained that juror #10 would announce that she had nothing to say. (45 RT 5364.) The foreman admitted, however, that after certain votes were taken, juror #10 would engagetherest of the jurors by changing her mind and asking technical questions. (45 RT 5365.) On those occasions when she disagreed with the majority, the foreman would ask her to write out what she thoughtso that they could discuss the reasoning behind herstand on an issue. She refused to do that. (45 RT 5365.) She “just clam[ed] up”. (45 RT 5366.) “She just says my opinion is this and that's it.” (45 RT 5369.) Under examination by the prosecutor, the foreman reiterated that juror #10 madestatements but would not discuss the reasoning behind them. Shejust said “that is what she believes.” (45 R.T. 5370.) In his opinion, juror #10 refused to accept the views of other jurors and wasthereforefailing to deliberate. His exact words were “she does not accept our viewsat all.” (45 R.T. 5371.) Perhaps most significantly, however, the foreman admitted that there was “a little blowup “ in the jury room during deliberations. Although the foreman apologized and thought most people acceptedhis apology, he did not knowforsure. (45 RT 5373.) Additionally, the issue of race came up during deliberations. As foreman, hetried to put a stop to the talk but he was notsure he wasentirely 25 successful. (45 RT 5373.) In any event, he admitted that juror #10 might have taken it personally. (45 RT 5373.) If indeed there had been any doubt about the matter, when juror #10 appeared before the court the morning following the jury foreman’s complaint, she told the trial court that during deliberations she had been attacked verbally, screamed at and cut off during deliberations. (45 R.T. 5434-5435.) In that regard, juror #2 explained that juror #10 realized she wasthe only African American in the room, so she wanted to double check everything. Further, she felt “picked on” because ofher race andherinsistence on getting thingsright. Indeed,the rest of the jurors told her not to bring raceinto it. (45 R.T. 5386, 5389.) Other jurors corroborated juror #10's version of the events. Most significantly, jurors #4 and #1 1confirmed that there was a heated exchange among the majority and juror #10 during the prior week of deliberations and people were very irritated. (45 R.T. 5399, 5421-5422.) Certainly that kind of outburst by other jurors would - at the very least - tend to inhibit a minority juror’s participation in deliberations for fear of provoking new instances of recrimination. Moreover, as juror #1 admitted, Juror #10 expressed her opinions. She simply refusedto discuss the basis for them. (45 R.T. 5377-5378.) Juror #2 also admitted that juror #10 was arguing with otherjurorsat the beginning of deliberations. It was not until later, after the other jurors strongly challenged her to prove her arguments that she would say, "When I have something to say,I'll say it, and I don't want to say anything right now so I'm notsaying it. You guystalk about what you want, but I'm not gonna say anything," (45 R.T. 5382; see also juror #11's similar comments at p. 5419.) Juror #6, explained that the pattern that emerged during deliberations was that when juror #10 disagreed with the majority, 26 she would say so. Nevertheless, she would not explain why in any great detail. (45 R.T. 5415.) When juror #10 agreed with the majority, however, she opened up and discussed her reasoning more. (45 R.T. 5415.) Juror #2 also observed that sometimes juror #10 wanted to reopen votesthat were alreadysettled. (45 R.T. 5395.) Juror #5 agreed that, occasionally, juror #10 would respond inappropriately to questions on a topic. (45 R.T. 5406.) Nevertheless, he too, admitted that he was struggling with the legal issues. (45 R.T. 5406.) Additionally, jurors #5, #6 and #11 complained that sometimesjuror #10 would take one position in the morning and then argueor shift to another in the afternoon. (45 R.T. 5408, 5413, 5418- 5419.) Juror #5 also agreed that juror #10 often would not share her reasoning. (45 R.T. 5407) That is, sometimes she would take a position but refuse to explain how she got there. (45 R.T. 5407.) Significantly, however, juror #4 told the court that juror #10 would argue that the other jurors did not have evidence to support their views. Whenthe otherjurors came up with specifics, juror #10 would say “I don’t believe it.” (45 R.T. 5396.) Finally, juror #4 and juror #2 admitted that juror #10 spent a lot of time flipping through the booklet ofjury instructions and writing notes. (45 R.T. 5394, 5399, 5389.) Situations where a juror disagrees with the majority concerning what the evidence showsor how deliberations should be conducted do notconstitute a refusal to deliberate and are not grounds for discharge. Additionally, a juror who participates in deliberations for a reasonable period of time may not be discharged for refusing to deliberate further simply because the juror believes that additional discussion will not change his or her conclusions. (People v. Cleveland, supra,at p. 27 485.) Here,the jurors admitted that juror #10 fully participated in deliberations for at least a day. Moreover, even though the majority complained that she did not deliberate towards the end, as noted above, they also complained that towards the end of deliberations she flipped through the jury instruction booklet, she tried to engagein technical discussions and changed her vote. Moreover,contrary to the view of several jurors, closely analyzing jury instructions, engaging in technical discussions and changing votes certainly shows continuingparticipation in the deliberative process. The primary complaint from the jury foreman, however, was that once juror #10 made up her mind, “Shejust says my opinionis this andthat's it.” (45 RT 5368.) This is precisely the problem the majority jurors had with the holdoutin United States v. Symington (9th Cir. 1999) 195 F.3d 1080 ( cited with approval by this court in Cleveland). In Symington,the holdout juror simply refused to debate her viewsstating that she did not “‘have to explain herself to anybody.’" (Symington, supra, at p. 1084, quoted in Cleveland, supra at p. 484.) In Cleveland this court found that similar conduct was perfectly appropriate and necessary to maintain the integrity of the jury trial process. (/d., at pp. 485-486.) Most importantly, however, the facts demonstrate that juror #10 was simply unpersuadedbythe state’s case. As juror #6 explained, when other jurors would try to contradictjuror #10's views by pointing to specific testimony or evidence, juror #10 often said “I don’t believe it.” (45 R.T. 5395.) There could hardly be a more clear statement ofjuror #10's rejection of the state’s evidence. It is this failure to be persuadedby the prosecution evidencethat is fundamentally fatal to the trial judge’s dismissal ofjuror #10. (Cleveland at pp. 483-484. ) Indeed, if there was any doubt 28 about the matter, the jury foreman erased it when hetold the trial judge that juror #10 was failing to deliberate because she refused to accept the views of other jurors. (45 R.T. 5371.) Rather than a refusal to deliberate, the facts here demonstrate a holdoutjuror doggedly refusing to cave in under pressure from the majority. Juror #10 did not believe the prosecution’s witnesses and did notbelieve that the state carried its burden of proof. Whensheinitially tried to debate the issues and explaintheracial divide, she was verbally attacked. Recognizing that further debate was useless in the sense that she could not persuade the majority and the majority could not persuadeher, she remainedsilent except in those rare instances when the majority saw the issues the same wayshe did. Underthese circumstancesand for the additional reasons set forth in appellant’s openingbrief, there is inadequate factual supportfor a finding that as a “demonstrable reality,” juror #10 failed to properly deliberate. Inadequate Inquiry into Credible Assertions ofJuror Misconduct Finally, as appellant explained in his openingbrief, the trial court failed to conduct an adequate inquiry into the abuse suffered by juror #10 at the handsofthe other jurors or to investigate allegations of misconductby these other jurors in disregardingthetrial court’s instructions to start deliberations anew (a matter discussed at greater length in issue II] infra.). Respondenturges that because thetrial judge has considerable discretion in conducting an investigation and becausethetrial judge actually interrogated numerous jurors- getting similar answers from mostof those jurors concerning the course ofdeliberations- the trial court’s inquiry wassufficient. (Respondent’s brief at pp. 167-168.) It was not. 29 Conspicuously omitted from respondent’s argumentis any discussion of the jury misconduct here. Thatis, the trial judge’s investigation confineditself to whether juror #10 wasdeliberating properly. By contrast, the evidence the court gathered duringthat investigation showedintimidation based on race, exclusion of the cultural context of the primary prosecution evidence andoutrightviolations of the judge’s instructionsto start deliberations anew. NONEofthis misconduct was investigated bythetrial judge. Here, during deliberations juror #10 attempted to explain whatit waslike for a young black girl to grow up in Moreno Valley where these events occurred. (45 R.T. 5282.) In doing so, she was obviouslytrying to conveythe cultural context of life as a youngblack person in the area, a perfectly valid consideration. (See, People v. Wilson, supra, 44 Cal.4th at p. 831[“[Jurors] can draw ontheir personal and family experiences within their own minority communities.”] More important, as appellant pointed outin his openingbrief(at p. 198, fn. 63), in the context ofthis case, juror #10 might well havebeentrying to explain to the other jurors that the " organizational meeting" at Natalie Dannov's house was little more than a group of teenagers boasting to one another andtalking big. It was certainly not the well orchestrated beginning of a smoothly functioning criminal undertaking that the prosecution contended was the centerpiece of an ongoing criminal enterprise. Had she not been unfairly maligned and marginalized, juror #10 could have encouragedotherjurors to seriously consider whether the Pimp Style Hustlers was ever intendedto be a viable criminal enterprise. Instead, it may have been an enginefor achieving social status [or as Natalie Dannov phrasedit, becoming " legitimate businessmen"(see, e.g., 24 RT 4329 )] in a low status environment. 30 Indeed, the prosecution’s primary witness, Christopher Lyons,testified that he thought the purpose of the crimes was simply to get money to have fun. (19 R.T. 2706.) Mondre Weatherspoontestified to essentially the same thing. (29 R.T. 4034.) Moreover, the evidence showsthat most of the subsequent carjackings were complete failures. Even then, there waslittle evidence of recrimination by appellant. Thus, as a viable criminal enterprise, the Pimp Style Hustlers was mostly a bust. Had the jurors concludedthat in context there was no viable ongoing criminal enterprise, appellant’s vicariousliability, particularly for the Los homicide, would have been even more suspect than it was presented by the prosecution. That view of the very foundation of the prosecution’s case against appellant, however, was obviously antithetical to the prosecution’s presentation and apparently out of favor with the remaining (white) jurors. From the record available, it appears that the rest of the jurors attempted to preclude any discussion of what they considered the racial aspects ofthe case. As juror #2 explained, juror #10 realized she was the only African American in the room, so she wanted to double check everything. Further, she felt “picked on” because of her race and herinsistence on getting things right. Indeed,the rest of the jurorstold her not to bring race intoit. (45 R.T. 5386, 5389.) According to juror #2, juror #10 acquiesced in the majority’s demand. (45 R.T. 5389.) Perhaps contrasting the view of the majority of the jurors in this situation and later in the penalty phase better illustrates the fundamental problem of race in these deliberations. As noted above, during guilt phase deliberations, the majority white jurors considered juror #10's attempt to explain the cultural context of a young black person growing up in Moreno Valley to be nothing more than an unwarranted attemptto bring raceinto deliberations. (45 R.T. 5386,5389.) Yet, in the penalty 31 phase, when the prosecution introducedtestimony, pictures and a video of the cultural context of Ms. Los’ life, especially her younglife growing up in a small Minnesota town and howit shaped her behavior as an adult, the majority apparently saw this evidenceas a valid consideration supporting the imposition ofthe death penalty. (See issue XVI infra.) Theseare virtually identical considerations except that Ms. Los was white and juror #10 wasblack. Under these circumstances,it is hard to reconcile excluding this jury consideration when the basic theory of conviction wascalled into question, yet permit it when deciding whichofthe two ultimate alternative penalties was more appropriate. Moreover,despite these allegations of misconductin the jury room,thetrial judge never investigated. In fact, when juror #4 specifically asked the court if it was aware ofthe “blow up”in the jury room,the judge quickly silenced the juror by saying that he did NOT wantto know aboutthat incident. (45 R.T. 5399.) Evenifthe foregoing was notsufficient to prompt an investigation by thetrial judge, juror #10's remarks the day after she was dismissed were more than sufficient. At the hearing held on the morning after her dismissal, juror #10 told the trial judge what happened whenthetwoalternate jurors were previously seated: “But when the alternates came, your instruction was that we were supposedtostart our deliberations from -- like we never deliberated before and forget what we talked about before and start anew, because we had two new alternates and the defendant wasentitled to verdicts from everybody from -- fresh, and during the deliberations, if I would have been here yesterday I would havetold it, but it wasn't redeliberated. It was like, "Youtell us what you think and we'll tell you what we decided," and it wasn't right to me, because to me, you supposedto act like you nevertalked 32 about what you talked about before, and it was kind of like, okay, well, if that's the way you guysdid it, okay, then we're ready to vote. And wespent a week and a half in there before we could even vote on issues, and then you come in and you just say how youfelt about certain charges, and then we listened and wesaid that's how we felt, and then wevoted, and I don't think it was fair and unbiased, because to me it seemed it was a preconceived thing already in their mind how they was gonna doit, becausethey had no discussion about anything, and | thought that your instructions meant we are supposed to start again, like we started whenwefirst started, without giving what -- the things we talked about, the questions that cameup. Wehadto ask for certain testimony again, and none of that was done, and in one day mostly 11 verdicts, 11 charges was voted on in one daybybasis of, to me, how wefelt before the two other people camein there, andit bothered me because that didn't -- to me didn't seem like yourinstructionsto us, and I really don't feel that that's fair." (45 R.T. 5433-5434.) Moreover, as explained below,the jury notesare entirely consistent with juror #10's explanation of what took place during the two days of deliberationsafter the two alternates were seated and before juror#10 was replaced. That is, the newly seated jurors were simply asked what they thought and the remainingjurors explained what they had previously decided and votes were taken. Before examining the juror notes, however,it is important to consider them in the context of the ever changing composition of the jury. A timeline will assist the Court in understanding that context. 33 March 23, 1998 March 26, 1998 March 30, 1998 Jury begins guilt phase deliberations. (18 C.T. 5055.) Judge makes inquiry of Juror #10. (18 C.T. 5058.) Jury note asking for readback of testimony and an explanation of the meaning of a “major participant” as set forth in CALJIC 8.80.1 (19 CT 5154.) 2 jurors replaced with alternates at approximately noon. (18 CT 5064.) Jury returns from lunch and deliberations resumeat 1:45 pm. (18 CT 5064.) Jury note asking to “fill...in” new jurors on previous questions and answers. (19 CT 5163.)° Jury note asking whether jurors should return verdicts as decided. (19 CT 5161) Jury note asking for two copiesofprinted instructions. (19 CT 5162.) 6 The jury note reads: [Jury question] “When deliberating anew, can we use our same questions and answers during the new deliberations or do we resubmitt (sic) some questions if we want to fill the new jurors in on certain questions that came up before along with their answers.” [signed] march 30, 1998 Juror #3 [foreman] [Judge response] “You may not have the same questionsas before, butto the extent that you do, you may use the same answers” (19 C.T. 5163.) 34 March 31,1998 Jury note asking if every crime is a new conspiracy or does the conspiracystart at the first crime? (19 CT 5165.) Jury note requesting readback of testimony. (19 CT 5167.) April 1, 1998 Jury foreman note complaining about juror #10,in juror #10's absence. (19 CT 5168-5159.) Juror 10 excused without being contacted first. (18 CT 5067.) April 2, 1998 FormerJuror #10 examinedby the court. (18 CT 5068.) Alternate juror #4 empaneled as new juror andjury directed to start deliberations anew at 10:30 am. (18 CT 5068.) More readbacksof testimony. (18 CT 5068; 19 CT 5170-5171.) Verdicts on 9 of the 11 counts reached. (18 CT 5075-5092.) Jury recessed until 9:30 am April 6, 1998. (18 CT 5068.) April 6, 1998 At 2 pm, jury requests clarification of the phrase “to wit” in the sentence enhancements on two counts. (19 CT 5172.) At 2:15 pm.verdicts on the remaining 2 counts reached. (18 CT 5070-5074.) The evidence showsthat on March 30, 1998 (two days before the jury foreman complained about juror #10) two jurors were excused for various reasons 35 and two alternates were seated. (See 18 C.T. 5064- 5065.) The latter of the two alternates was seated at approximately noon andthe jurors were instructed to begin deliberations anew. (18 C.T. 5064.) That same afternoon,after the reconstituted jury returned from lunchat 1:45 pm,the jury foremansent the judge a note asking if the original jurors could simply “fill... in” new jurors on questions that had been previously discussed. (18 C.T. 5065; 19 CT 5163.) The court responded that such a procedure waspermissible assumingthat the jury’s concerns were the same. (19 C.T. 5163.) Again that same afternoon,the jury foreman sent another noteto the judge askingif the verdicts should be given to the court as they were decided. (See 18 C.T. 5065; 19 C.T. 5161.) It should be noted as well that on that same afternoon, the jury requested two additional copiesof the jury instructions. (19 C.T. 5162.) Significantly, the majority jurors themselves corroborated both the jury notes and juror #10's explanation of what took place during those two days of deliberations. In his original note to the court complaining about juror #10's failure to properly deliberate, the jury foreman observedthat the jury previously voted on counts 1-11. Nevertheless, when juror #10 returned from lunch, she changed her mind about the way she voted. (19 C.T. 5168; see also 45 R.T. 5368.) Although the note does not state which day the jurors actually voted, since the note was sent only a day and half after the reconstituted jury convened (and thus the jury could have goneto lunch only twice), the time sequence meansthe reconstituted jury originally voted on 11 separate counts on either the afternoon whenthe alternates were seated or the following morning. More corroboration was provided by Juror #4 who complained that juror #10 sometimes wanted to reopen votes that were already settled. (45 R.T. 5395.) Juror #6 said the same thing. (45 R.T. 5414.) Critically, juror #6 also said that sometimes 36 after lunch juror #10 would comeback andtotally reverse her opinion on a subject they voted on right before lunch. (45 R.T. 5413.) Juror #6 also said that the jury had to go through readbacks simply to benefit juror #10. (45 R.T. 5414.) In context, therefore, it appears that the reconstituted jury voted before juror #10 asked for a readback of testimony. That is, the verdicts would have been returned on the same afternoonas the alternates were seated but for juror #10's refusal to go along with the majority. Moreover, juror #6's comments makeit clear that it was NOTthe new jurors or even the majority jurors who wanted the readbacksit was juror #10. These facts show that juror #10 was deliberating, although her method probably frustrated the other jurors. Nevertheless, her method of deliberation was not cause for dismissal. Despite these allegations ofjuror misconduct- allegations that appear to be corroborated both by the jurors themselves and the independent juror notes - the trial judge failed to conduct an investigation into ANY of these matters. His concern focused solely on the majority jurors’ complaints about juror #10's ability to deliberate. Moreover, as appellant pointed out in his openingbrief, the decision in People v. Castorena (1996) 47 Cal.App.4th 1051 compels reversal under the circumstances presented here. (See appellant’s opening brief at pp. 198-199.) In Castorena,thetrial court initially interviewed seven of twelve jurors concerning whethera holdoutjuror was refusing to deliberate. Based solely on interviews with those seven jurors and without interviewing the holdoutjuror, the trial court determined to dismiss the holdoutjuror. Subsequently, the holdout juror submitted a 15 page noteto thetrial court which contradicted the allegations made against her by the other jurors and raised new allegations of misconduct against one of her accusers. (Jd. at p. 1066.) 37 Additionally, there was evidence from at least one other juror that in fact the holdout juror was deliberating in goodfaith. (/d. at p. 1066.) Despite those matters, the trial court dismissed the holdout juror. (/bid.) The appellate court reversed concludingthat the trial court erred significantly in failing to conduct a proper inquiry. (/bid.) Based on the 15 page note, the court possessed information which,if true, would preclude ‘good cause’ for removing the holdout juror, and constitute 'good cause’ to justify removal of one or more ofthe other jurors from the case. (See, e.g., People v. Ray (1996) 13 Cal.4th 313, 343.) Absent an inquiry into the facts raised in the juror’s 15 page note, however,“the court did not have the requisite facts upon which to decide whether[the holdout juror herself] in fact failed to carry out her duty as a juror...” (/d., at p. 1066.) Although a sufficient inquiry mighthave refuted the holdout juror’s claimsin the note, nevertheless, "we cannot speculate about whatfacts might have been adduced if the [proper] inquiry had been conducted." (People v. Castorena, supra, 47 Cal.App.4th at p. 1066.) As appellant explained above andin his openingbrief, the facts of this case closely mirror those of Castorena. While the judge interviewed severaljurors, he never bothered to interview juror #10, the holdout juror. Additionally, despite evidencethat the majority jurors had a significant verbal altercation with juror #10, the trial judge said he did not want to know aboutit. Even conceding that the judge maynot have been awareofthe severity of the verbal altercation merely by listening to the majority jurors, had he interviewed juror #10 as the defense requested, he would have become aware of the magnitude of the problem. Moreover, he certainly knew aboutit the following day when juror #10 told him that she had been verbally attacked, screamedat and cut off during deliberations. Still, he did nothing. 38 Finally even after juror #10 informed thecourt that the majority jurors had essentially ignored his instructions to begin deliberations anew- an allegation largely corroboratedby the juror note asking about recording the verdicts and the testimony of the majority jurors themselves- the trial court still failed to investigate. Thus, like the circumstances of Castorena,the trial court failed to conduct an appropriate factual inquiry into the circumstances involving juror misconduct. Moreover,like Castorena, the error affected appellant’s substantial federal Constitutional rights. Prejudice In his openingbrief, appellant argued that the prejudice in unfairly dismissing the holdout juror during deliberations denied appellant his Fifth, Sixth, Eighth and Fourteenth Amendmentrights under the United States Constitution as well as similar provisions ofthe California Constitution. The prejudice compels reversal. Respondent doesnot argue prejudice and thus necessarily concedesthat if the juror was improperly dismissed, the error compels reversal.. (See People v. Bouzas (1991) 53 Cal.3d 467, 480 [respondent's failure to engage arguments operates as concession]; Indeed, "[a]s the Attorney General'does not expand onthe issue with _.. citation to relevantauthority," the Court should deem the issue conceded.) (People v. Solorzano (2005) 126 Cal.App.4th 1063, 1070 n.4 [quoting People v. Hardy (1992) 2 Cal.4th 86, 150]; see also People v. Williams (1997) 16 Cal.4th 153, 206 ["Points perfunctorily asserted without argument in support are not properly raised."].) Forthe reasons set forth above and in appellant’s openingbrief, the trial 39 court’s error in excusing the holdout juror during deliberations requires reversal. 40 Il. SUBSTITUTION OF AN ALTERNATE JUROR FOR ORIGINAL JUROR #10 COERCED A VERDICT SUMMARYOFAPPELLANT’SARGUMENT In his openingbrief, appellant argued that although the judge instructed jurors to begin deliberation anew on the substitution of a juror, he did nothing to ensure that past misconduct in this area - as revealed by juror #10 - did not continue. Further, the dates on the verdict forms and the speed at which the jurors arrived at verdicts despite the vast quality of evidence on multiple counts demonstrates that there was no meaningful deliberation after alternate juror #4 was substituted for juror #10. Instead, as with past juror misconduct substitutions, the existing jurors simply coerced the new juror into accepting their view of the evidence. (Appellant’s opening brief at pp. 203-214.) SUMMARYOFRESPONDENT’SARGUMENT Respondent urges that because the jurors requested a readback of testimony after the substitution of the previousjurors (but before the dismissal ofjuror #10), that readback alone showsthat the jurors were deliberating properly. More important, it showsthat the jury followed the judge’s instructions to begin deliberations anew. Additionally, because the jurors were clearly deliberating properly before the dismissal ofjuror #10, and there is no indication on the record that they did anything differently after juror 10 was replaced by alternate juror #4, this court can safely presumethat the jurors continued to follow the judge’s instructions. For that reason, appellant’s claim is necessarily based upon pure speculation. (Respondent’sbrief at pp. 169- 176.) 41 ERRORS INRESPONDENT’SARGUMENTS Respondent’s argumentis essentially an appeal to the presumption of regularity. That is, if the jury deliberated properly before juror#10 was dismissed, then in the absence ofevidenceto the contrary, it should be presumed to have deliberated properly after the dismissal. The primary flaw in respondent’s argumentis the failure to deal with the evidence of record. As appellant explainedin the prior issue, there was plenty of evidence in the record to warrant an investigation into juror #10's claim that the jury did NOTdeliberate properly before juror #10 was dismissed. Appellant incorporateshis prior arguments set forth in Issue II on this matter as though they were set forth here in full. Asto the deliberations after juror #10 wasrelieved, verdicts on 9 of the 11 counts were reached on the same date that juror #10 was relieved and the verdicts on the remaining two counts were reachedafter only four or five hours the next working day. Thus, the evidenceofthe jury’s past misconduct as set forth in Issue II and the speed with which deliberations concluded after juror #10 was replaced rebut any presumption ofregularity. Respondentattemptsto sidestep this evidence by merely alludingto the ongoing jury deliberations, both before and after juror #10 was replaced. The obvious problem with respondent’s argument onthis point, however,is that the outward appearance ofregularity does not preclude coercion. Moreover, if there was coercion by other jurors,it is certainly the result of the interplay between the judge and jury concerning the dismissal of the only two black jurors on the panel and the judge’s concessionthat the original jurors could “fill... in” the new jurors. Nevertheless, appellant will deal with the two events ofjuror substitution 42 extolled by respondent to explain in depth why respondent’s appealto the presumption of regularity in jury deliberations will not withstand scrutiny. Deliberations Prior to Dismissal ofHoldout Juror #10. Respondent’s answerto appellant’s claim ofjuror misconduct on March30, 1998 is that after the substitution of two jurors (two days before juror #10 was dismissed), the reconstituted jury requested a readback of testimony. Obviously there would be no reasonto ask for a readback of testimony if the substituted jurors had already decided the case in accordance with the wishes of the majority of previously deliberating jurors Respondentis in error. The sequence of these events is important to an understanding of exactly what transpired. Asappellant explained in the prior issue, on March 30, 1998, the second of the two alternates was seated at approximately noon andthe reconstituted jury was instructed to begin deliberations anew. (18 C.T. 5064.) That same afternoon the jury foreman sent the judge notes askingif the original jurors could simply “fill... in” new jurors on questions that had been previously discussed (18 C.T. 5065 ; 19 CT 5163)’ and whetherthe verdicts should be given to the court as they were decided. (See 18 C.T. 5065; 19 C.T. 5161.) That same afternoon as well, the jury requested additional copies ofthe jury instructions. (19 C.T. 5162.) It is certainly true, as respondentasserts, that the jury also requested readbacksof certain testimony. That request, however, came a day after the alternates were seated. (19 C.T.5167.) This one-day delay is crucially important in the context of what actually took ’ Asnoted previously, the court responded that such a procedure was permissible assumingthat the jury’s concerns were the same. (19 C.T. 5163.) 43 place during deliberations. As explained in the priorissue, it appears that the reconstituted jury voted on almostall of the counts on the same afternoonthe alternates were seated. Additionally, Juror #4 told thetrial court that juror #10 spent a lot of time flipping through the instruction booklet and writinglittle notes. (45 R.T. 5394.) Juror #6 told the court that the jury had to go through readbacksto benefit juror #10. (45 R.T. 5414.) In context, therefore, it was clearly juror #10 who wantedthe copies of the jury instructions NOTthe other jurors andjust as clearly, it was NOT the new jurors or even the majority jurors who wanted the readbacks, it was juror #10. Thus, contrary to respondent’s claim, the facts show that the request for readbacks of testimony was not so much because thereconstituted jury deliberated in goodfaith as muchit was that the holdout juror refused to cave-in under the intense and improperpressure of the other jurors to find appellant guilty. All the verdicts would have been returned on the same afternoon the alternates were seated but for juror #10's refusal to go along with the majority. Under these circumstances, there is no presumption of regularity for respondent to rely upon. Moreover, as appellant pointed out in the previousissue, sincethe trial judge did not conduct a proper investigation into these allegations of juror misconduct, an appellate court "cannot speculate about what facts might have been adducedifthe [proper] inquiry had been conducted." (People v. Castorena, supra, 47 Cal.App.4th at p. 1066.) Deliberations After Dismissal ofHoldout Juror #10. Respondent’sreliance on the claim that nothing in the record indicates misconductin the swift deliberations after juror #10 was replacedis contrary to the 44 facts of record and a legally insufficient basis upon which to concludethat the verdicts were not coerced. As appellant explained in his openingbrief, the trial court’s failure to inquire into the juror misconductin this case eliminates anybasis for this court’s deferential reliance on the trial court’s factual findings becausethe trial court did not have an adequate basis upon which to makeanyfactual findings. (Cf. People v. Nessler (1977) 16 Cal.4th 561, 581.) Indeed, no juror contradicted juror #10's account of the process by which the majority circumvented the mandate ofthetrial court’s instructions to deliberate anew. (People v. Castorena, supra, 47 Cal.App.4th at p. 1066.) In fact, as appellant pointed out above, the jury notes of March 30, 1998 and the juror testimony during the judge’s inquiry bolster juror #10 claims. (19 C.T. 5161,5163; supra. pp. 31-33,) More important, nothing in respondent’s argument addresses the problem of substituting jurors after the majority has already reached conclusion regarding guilt. As appellant pointed out in his opening brief (at pp. 209-210), even though a jury has been instructed to start its deliberations anew, there are some circumstances where following such aninstruction is simply unrealistic because it is impossibleto incorporate into those deliberations the perception, memory and viewpointsofthe new juror. This is especially true where (as here) the jury has already reached agreementfor verdicts on related counts. (See, e.g., People v. Aikens (1988) 207 Cal.App.3d 209, 219 (conc. & dis. opn. of Johnson, J.) [where jury reached a verdict on arelated countprior to the substitution of a new juror, a verdict by a reconstituted jury cannot meet the requirement of unanimity]; State v. Corsaro 45 (1987) 107 N.J. 339 [526 A.2d 1046]® [once jurors have reached any verdicts, the panel cannotbereconstituted to deliberate and reach the remaining verdicts].) As appellant explained in his opening brief as well, there is a substantial "inherent coercive effect upon an alternate juror who joins a jury that has... already agreedthat the accusedis guilty..." (United States v. Lamb (9th Cir. 1973) 529 F.2d 1153, 1156.) The coercive effect is particularly strong where the sole dissenteris removedby the court, which can only telegraph to the majority that its guilty position was approved bythe court. (Cf. Lowenfield v. Phelps (1988) 484 U.S. 231,239-241 [108 S.Ct. 546, 98 L.Ed.2d 568] [recognizing court's conduct more likely to be interpreted as coercive where jury is aware that the court knowsthe numerical breakdown ofthe division amongthejurors.]) Here, the alternate juror who replaced juror #10 was under inordinate psychological pressure to go along with the group, whose onerecalcitrant member the court had removed from its body after lengthy deliberations. (See, e.g., Jimenez v. Myers (9th Cir. 1993) 40 F.3d 976, 981 [trial court coerced a verdict byits actions that "sent a clear messagethat the jurors in the majority were to hold their position and persuadethe single hold-out juror to join in a unanimous verdict, and the hold- out juror was to cooperate in the movement toward unanimity"].) This court has emphasized that the propriety of substitution of a juror during deliberations rests on the presumption that the new juror will participate fully in the jury's deliberation. (People v. Collins, supra, 17 Cal.3d at p. 693.) The deliberations here, however, were irretrievably skewed whenthe court effectively 8 AsJustice Johnson explained in Aikens, the New Jersey statute governing substitution ofjurors is similar to and interpreted in a mannersimilar to California’s Penal Code section 1089. ( People v. Aikens, supra, 207 Cal.App.3d at p. 218.) 46 gave its imprimatur to the majority by discharging the one juror who took issue with the majority’s view during those deliberations. The verdicts on counts 3-12 are dated April 2, 1998 (18 C.T. 5074- 5095),the first day of deliberationsafter thelast alternate was substituted in. (18 CT 5068.) All verdicts were reached on April 6, 1998, after approximately four more hours of discussion on only the second day of deliberations by the reconstituted jury.’ (18 C.T. 5069.) The length of deliberations are a critical factor in determining whether the judgment was rendered in undue haste. Indeed, in People v. Thomas (1990) 218 Cal.App.3d 1477, a case upon which respondentrelies, the court specifically noted, “« this is not a case where the jury rushed to judgmentafter the alternate jurors were seated. In point of fact, the newly constituted jury deliberated for almost three _ weeks before reaching a verdict on somebutnotall of the remaining counts. The length of deliberations and the discriminating verdicts reached by the jury establish beyond doubt that defendant suffered no prejudice becauseofthe court's action.” (Id., at p. 1488 (emphasis added).) Obviously, the same cannotbe said for the deliberations here. This was a monthslongtrial and the total length of deliberations from the final reconstituted jury lasted barely a day and half. (18 CT 5068, 5070-5073.) The extraordinarily short - one day - time frame in whichthefinal reconstituted jury reached verdicts on 9 of the 11 counts (18 C.T. 5074- 5095) plus the remaining four or five hours of deliberation to reach a verdict on the remaining two counts (18 C.T. 5069) constituted nothing less than a rush to judgment. By comparison,the jury deliberated a total of six days before juror #10 was removed. (18 CT 5055-5068.) 9 The jury wasin recess from the afternoon of April 2, 1998to the momingofApril 6, 1998. (18 CT 5068.) 47 Under thetotality of the circumstances presented in this case, particularly the coercive conduct of the majority jurors and their successful campaign to replace the lone holdout, "[a] replacementjuror, no matter how novelor persuasive her argumentfor [] acquittal may have been, would have been hard pressed to overcome the trial court's implied admonition to the original jurors to hold their ground and convict." (Perez v. Marshall (9th Cir. 1997) 119 F.3d 1422, 1429 (dis. opn. of Nelson, J.).) For these reasons, the verdicts here were improper. There is simply no evidence that will support respondent’s invocation of the presumption of regularity. Instead the opposite is true. What evidence there is demonstrates that the jury verdicts here were coerced. Accordingly, the trial court deprived appellant of his state and federal constitutionalrights to a fair trial by an impartial jury, requiring reversal. Moreover, because the coercion of the guilt verdicts rendered them unreliable,it also deprived appellant ofhis right to due process underthe Fifth Amendment,his right to a jury trial under the Sixth Amendment, and his right to a reliable death judgmentunderthe Eighth and Fourteenth Amendments to the United States Constitution. For all these reasons and thoseset forth in his openingbrief, the judgmentmustbe reversed. 48 IV. THE TRIAL COURT ERRED IN INSTRUCTING ONLY ON FIRST DEGREE FELONY MURDER WITHOUT ANY LESSER INCLUDED OFFENSE INSTRUCTION, AND IN GIVING SPECIAL CIRCUMSTANCE INSTRUCTIONS WHICH ALLOWED THE SPECIAL CIRCUMSTANCE TO BE IMPUTED TO APPELLANT SUMMARY OFAPPELLANT’SARGUMENT Thetrial court has a sua sponte duty to instruct on all lesser included offenses supported by the evidence. These instructions ensure that the jury is not left with an “all or nothing” situation in whichit either has to convict a defendant of a more serious offense about which the jury has its doubts, or acquit the defendant despite evidence showingclear criminal culpability. Here, despite the jury’s evident difficulty with the reach ofthe theories of vicariousliability, no instructions on lesser included offenses related to the Los homicide were given. Nevertheless, there was evidence supporting an instruction on thelesser included offense of second degree felony murder based onthe target offense of discharging a firearm at the vehicle in a grossly negligent manner. (See People v. Robertson (2004) 34 Cal.4th 156, 165-167.) Moreover, the jury even asked the courtif appellant had to be convicted of the same offense as the actual shooter. Because no instruction on the lesser offense was given, the homicide conviction must be reversed. (Appellant’s openingbrief at pp. 215- 230.) SUMMARYOFRESPONDENT’SARGUMENT Respondenturges that there was no sua sponte dutyto instruct on any lesser offense because there was substantial evidence that appellant was guilty of the first 49 degree felony murder of Ms. Los. (Respondent’s brief at pp. 176-183.) ERRORS INRESPONDENT’SARGUMENTS In his openingbrief, appellant concededthat there was some evidencethat, if admissible, would support a conviction for first degree felony murder. Thatis NOTthe issue however. The issue is whether there wassufficient evidence to support an instruction on lesser offense. Significantly, under California law, the fact that the perpetrator of the crimeis guilty of one crime does not mean that the person whoaids and abetsthe perpetrator or conspires with the perpetratoris necessarily guilty of that same degree of the crime. (People v. Woods (1992) 8 Cal.App.4th 1570, 1590-1591; see also People v. Prettyman (1996) 14 Cal.4th 248, 275-276 [assuming but not deciding that Woods was correctly decided].) Thus the failure to instruct the jury that the aider and abetter could be guilty of a lesser offense than the actual perpetratoris an error of Constitutional magnitude. Respondent’s argument is flawed because it focuses almost exclusively on ~ the evidence supporting the first degree felony murder instructions, but fails to cometo grips with the evidence supporting the lesser included offenses. Respondent concedes, asit must, that second degree felony murderis a lesser included offense of felony murder. (Respondent’sbrief at pp. 179-180.) Nevertheless, respondentrecites a litany of facts supporting a first degree felony murder conviction. As presented by respondent, these include: appellant provided ‘the weapon to Dearaujo; appellant previously told the group at Dannov’s housethat persons whoresisted should be shot; appellant directed Dearaujo and Lyonsto hijack a light colored car and be prepared to put the victim in the trunk; andfinally, appellant told them to meet him near Gordy’s market so they could drive to 50 Anaheim. (Respondent’s briefat p. 182.)'° Thus, respondent argues the jury would necessarily find that appellant committed first degree felony murder (robbery). (Respondent’s brief at pp. 182-183.) Significantly; omitted from respondent’s argumentis any discussion of the testimony of the prosecution’s primary witness and the only eyewitnessto the shooting, Christopher Lyons. Lyonstestified that he told police that he and Mr. Dearaujo volunteered to get acar. (20 R.T. 2832.) If there was any doubt about the matter, during the discussion onjury instructions,the trial court found as a matter of law that the evidence wasinsufficient to show that appellant commandedor ordered the two to commit the carjacking. (38 RT 4658-4660.) Indeed, during penalty phase closing argument before the Dearaujo jury, the prosecutorspecifically argued that, “They went to commit the carjacking of Yvonne because they wanted to go with Jack. It was his [Dearaujo’s] idea. They wanted to do it, he and Chris.” (9 Supp. R.T. at p. 7089. (emphasis added) .) A few moments later Ms. Nelsonreiterated to the jury “He’s [Dearaujo] doing this all on his own. [§] There’s no onethere giving him step by step instructions on how to commit a carjacking..” (9 Supp. R.T. at p. 7094.) Since presumably the prosecution did not argue inconsistent theories between the defendants’ twojuries andis not now changingits theory on this appeal, itis hard to argue successfully that appellant wasthe prime moverinthis transaction, in view of the prosecutor's closing argument. Lyons furthertestified that he did not know what his intent was when he and Dearaujo went looking for a vehicle. He just knew he wantedto get a car to drive to 10 Appellant does NOT concede that these facts were ever established beyond a reasonable doubt. 51 a party in Anaheim. (21 R.T. 2904.) If Lyons did not know exactly whathis intent was,logically, appellant could not knowingly shareit. Finally, Lyonstestified that he and Dearaujo yelled at Ms. Losto open the door of her car. Instead of complying, Ms. Los started her car and began to back up. (19 R.T. 2639.) It appeared to Lyonsthat Dearaujo then panicked and shot Ms.Los. (19 R.T. 2639, 2643; 21 R.T. 2909, see also 2840.) Lyons testified that he was very surprised when he heard Dearaujo actually fire the gun. He then panicked when he saw Dearaujo had panicked. (21 R.T. 2909, see also 2840.) Thus, considered in context, the evidence here showsthat the Los homicide was "a rash impulse hastily executed." (Cf. People v. Munoz (1984) 157 Cal.App.3d 999, 1010.) It was a reflexive act and the bullet accidentally hit a vital spot. (Cf. Jackson v. State (1991) 575 So. 2d 181 at pp. 192-193; see also People v. Dillon (1983) 34 Cal.3d 441, 487-489.) Moreto the point, it was a reflexive act by someoneother than appellant, who was nowherenearat the time of the shooting. As appellant explained in his opening brief, under these circumstances, there is no mandatory inference that appellant either knew Lyons and Dearaujo were going to use the weapon to commit a robbery or that he shared that purpose when he loaned them the weapon. Indeed,the jury could have found that the robbery itself was an independentact conjured up by Dearaujo and Lyons, or that the shooting of Ms. Los was an independentact done by a panicky teenager after the robbery attempt had been abandoned. Therefore, whetherthe killing of Ms. Los wasin fact a natural and probable consequenceofappellant’s activities was a key factual question which only could have been resolved bythe jury if it was properly instructed to apply an objective test for second degree felony murder. (Cf. People v. Fauber (1992) 2 Cal.4th 792 at p. 834.) 52 PREJUDICE Notwithstanding the foregoing, respondent argues in essence that the evidence of appellant’s participation in the homicide was so overwhelmingthat even if instruction on the lesser included offense of second degree felony murder had been given,the jury necessarily would have found appellant guilty offirst degree felony murder. (Respondent’s brief at pp. 182-183.) Significantly omitted from respondent’s argument, however, is any discussion of the jury note specifically asking if the jury had to find appellant guilty of the same offense as the actual perpetrator. The note read, “I want to knowif a personis a principal if the non principal commits a crimeis the principal just as guilty of the crime also.” (19 CT 5149.) Over defense objection, the prosecution proposed a response using the language from CALJIC 3.00 that an aider an abetter is equally guilty with the perpetrator. (44 R.T. 5229.) After argument, the judge determined that the appropriate response was “Youare referred to instruction 3.00.”[Principal is equally guilty]'' (44 R.T. 5231) and provided that answerin writing to the jury. (19 CT 5149.) The note and response are both dated March 25, 1998. (19 CT 5149.) The note clearly suggeststhat the jury, or at least some of its members were Il CALJIC 3.00as it wasread to the jury provides: “Persons who are involved in committing or attempting to commit a crimeare referred to as principals in that crime. Each principal, regardless of the extent or mannerofparticipation, is equally guilty. Principals include, one, those who directly and actively commit or attempt to commit the act constituting the crime, or, two, those whoaid and abetthe commission or attempted commission of the crime.” (43 R.T. 5131.) 53 seeking a legal way to find appellant less culpable than Dearaujo. Moreover, since appellant wasn’t at the scene, did not know for sure that Dearaujo and Lyons would even attempt a robbery, muchless a shooting, and did not find out aboutthe incidentuntil later, it would certainly be reasonable of a juror to seek a lesser penalty than death for appellant. (Cf. People v. Fauber, supra, 2 Cal.4th 792, 834 [no accompliceliability as a matter of law after codefendantsaid “either do it” or “blow it off.”].) Giventhat the jury specifically asked whetherit was required to find appellant guilty of the greater offense, and wastold thatit had to sofind,it is implausible that the jury would NOThave found appellantguilty of a lesser offense had it been so instructed. Thesituation here is a classic example of the all-or-nothing choice between conviction and acquittal; a dichotomythat subverts the fact finding process and underminesthereliability of the verdict. (People v. Geiger (1984) 35 Cal.3d 510 at p. 519, citing Beck v. Alabama (1980) 447 U.S. 625, 638, 643 [65 L.Ed.2d 392, 403, 406, 100 S.Ct. 2382]; see also People v. Barton (1995) 12 Cal.4th 186 at p. 196.) Moreover,the right to have the jury consider every material issue presented by the evidence andthe need to discoverthe truth requires that the jury be instructed onall applicable theories ofa lesser included offense. (See People v. Doolittle (1972) 23 Cal.App.3d 14, 19, fn. 3: "A charge of murder includes all subdivisions of murder, the lesser degrees thereof, and manslaughter.") Finally, failing to instruct on noncapital lesser included offensesthat are supported by the evidence violates due process under the Fourteenth Amendmentas well as violating the Eighth Amendment. (Cordova v. Lynaugh (Sth Cir. 1988) 838 F.2d 764, 767; Vickers v. Ricketts (9th Cir. 1986) 798 F.2d 369, 371-373 [per Justice Kennedy, verdict overturned despite "abundant, clear, persuasive" evidence 54 of guilt of first degree murder].) Verdicts followinga failure to give lesser included offense instructions are more suspect in capital than non-capital cases. (Beckv. Alabama, supra, 447 U.S. at pp. 642-643.) Therefore, for the reasons set forth above and in appellant’s opening brief, the failure to instruct on a viable lesser included offense supported by the evidence in a situation where the jury wasplainly looking for a lesser alternative compels reversal. 55 V. THE TRIAL COURT'S ANSWERTO THE JURY'S QUESTION REGARDING AIDER AND ABETTERLIABILITY WAS NEITHER RESPONSIVE NOR IMPARTIAL. THUS,IT VIOLATED APPELLANT'S FIFTH AND FOURTEENTH AMENDMENTRIGHT TO DUE PROCESS,HIS SIXTH AMENDMENTRIGHTTO A JURY TRIAL AND HIS EIGHTH AMENDMENTRIGHTTO A RELIABLE GUILT DETERMINATIONIN A CAPITAL CASE SUMMARYOFAPPELLANT’SARGUMENT As notedin the previousissue, the jury sent the court a note requesting clarification of aider and abetter liability for felony murder.’* Thatis, the jury wondered whether the defendant could be found guilty of a lesser offense than his codefendant who wasthe actual killer. Over defense objection, the trial court simply directed the jury to reread CALJIC 3.00 (all principals are equally guilty). Significantly, however, thetrial court failed to alert the jury to CALJIC 8.27, the instruction which explains the causal and temporal requirements for aider and abetter liability in felony murder and would have permitted the jury to find appellant guilty of a lesser offense. Therefore, the court’s reply failed to properly explain the legal issue confronting the jury. That error alone requires reversal. Additionally, by referring the jury to CALJIC 3.00 and not CALJIC 8.27, the judge implicitly endorsed the prosecution’s theory ofthe case and failed to give the jury an impartial view of the evidence. 12 The note read: "I want to knowif a personis a principalif the non principal commits a crimeis the principal just as guilty of the crime also." (19 CT 5149.) 56 Appellant was severely prejudiced by this combination of errors. Vicarious liability was the fundamental factual issue for the jury in the case. The jury’s note clearly indicated that it was not fully convincedthat the prosecution provedits claim that appellant was an aider and abetter to felony murder. Thatis, had the aider and abetter instructions been clear, and had the jury been convincedby the evidence, the note would have been unnecessary. Underthe circumstances presented here, a reviewing court cannot say beyond a reasonable doubtthat the error referring the jury to an instruction favoring the prosecution’s theory did not contribute to the verdict. Reversal is compelled. SUMMARYOFRESPONDENT’SARGUMENT Respondenturgesthat the issue is waived since appellant failed to properly object at the time the supplementary instructions were given. Moreover, because the trial court has great leeway in answering jurors’ questions and the CALJIC 3.00 instruction that was given here wasitself appropriate, appellant’s issue lacks merit. Finally, even if the trial court erred, appellant was not prejudiced. The discussions concerning the note were concluded before juror #10 was excused. The reconstituted jury did not ask a similar question. Thus, there is no evidencethat the jury that actually convicted appellant was troubled by the issue of aider and abetter liability. (Respondent’s brief at pp. 183-189.) ERRORS INRESPONDENT’SARGUMENT Respondent’s arguments both lack support in the record and misplace the responsibility for properly instructing the jury. Additionally, even if CALJIC 3.00 was a correct statement of the law, that claim alone doesnotrelieve the trial judge 57 from giving instructions that are fair and impartial." In context, CALJIC 3.00 emphasized only the prosecution’s view of the evidence. The instructions could not have been impartial without reference to CALJIC 8.27. Moreto the point, since the trial judge previously referred the jury to CALJIC 3.00 the note clearly implied that CALJIC 3.00 did not resolve the jury’s question aboutaider and abetterliability - an issue the prosecutor herself conceded. Under these circumstances, CALJIC 8.27 was the more appropriate response. Finally, since 11 membersofthe reconstituted jury that convicted appellant were the samejurors affirmatively misled bythetrial court’s instructionalerror, and since those 11 jurors were able to simply “fill...1n” the new juror concerning previous questions and answers, it cannot be said that the error was harmless. No Waiver Respondent’s waiver claim is based on thefactthattrial defense counsel uttered the word’s “yes, well....” in a midsentence responseto the prosecutor’s assertion that CALJIC 3.00 answered the jury’s question. (Respondent’s briefatp. 185-187.) Further, trial defense counsel neverspecifically asked that the judge read CALJIC 8.27 as well. (Respondent’sbrief at pp. 187.) The facts, however, do not support a waiver claim. The entire colloquy over 8 Moreover,to the extent that respondent argues thata trial court need not elaborate on an instruction (see respondent’sbrief at pp. 187-188), the argument is misplaced. The defense did not ask for elaboration. The defense objected to CALJIC 3.00. Additionally, as explained below, having given CALJIC 3.00 over defense objection,thetrial judge then had a sua sponte duty to be sure that the instructions were impartial. By giving CALJIC 3.00 without giving CALJIC 8.27 as well, the trial court merely reinforced the prosecution’s theory of the case. No case law supports the proposition that a trial defense counsel has to request additional instructions such as CALJIC 8.27 to ensure the judge’s chargeto the jury is impartial. 58 the jury note is as follows: THE COURT:People versus Williams, CR-49662. We are convened in chambers. Both counselare present. MS. NELSON: The answerto their question [concerning the jury note] is 3.00, just plain as day. That's the answer. THE COURT: Well, myresponse,refer to 3.00. MS. NELSON: I would say the whole set, whichstarts at 3.00, and the languageis right there, the very first thing you read, apparently, but we already told them to refer to the whole set [of aider and abetter instructions] and that apparently did not doit, and the specific answerto their specific question is exactly 3.00. MR. WRIGHT: Butthere are -- MS. NELSON: That oneinstruction answersthat question — MR. WRIGHT: Yes,well -- MS. NELSON:-- which is to what level are principals responsible. Each principal, regardless of the extent or mannerofparticipation, is equally guilty, principals included,andit's defined. MR. WRIGHT: I'm not waiving my objection to 3.00 or any of that group, but that languageis in 3.00. THE COURT: Okay. Yourobjection is noted and the answeris refer to instruction 3.00. (44 R.T. 5234 (Emphasis added).) After reviewing the foregoing, the defense objection to the reading of CALJIC 3.00 in responseto the jury note could not be more clear. The defense did 59 NOTagree that reading CALJIC 3.00 was a proper responseto the jury note. In fact, the exact opposite is true: defense counsel disagreed vehemently. Moreover, if there was any doubt about the matter, the trial judge specifically noted the defense objection when he overruled it. Thus, respondent’s claim that the defense failed to properly objectto the trial court’s decision to refer the jury to CALJIC 3.00 1S simply without foundation in the record. As for respondent’s claim of waiver because the defense did not specifically request CALJIC 8.27 (respondent’s brief at p. 187), that argumentis not well taken either. Respondent implicitly characterizes the matter as the defensefailure to request elaborating instructions. (Respondent’s brief at p. 187.) Thatis not the situation here. CALJIC 8.27is not an instruction that merely elaborates on aider and abetter liability. Because it explains the causal and temporal relationship necessary for felony murder, the instruction is critically important to the jury’s determination of whether appellant had any criminalliability at all for the homicide offenses. Indeed, CALJIC 8.27 wasoriginally given as an integral part of the general instructions on aider and abetterliability. (44 R.T. 5275.)" M4 Respondentalso discusses theprior jury note expressing confusion over aider and abetter liability for the robbery of the Los Angeles Timesoffice instead of the Classy B liquor store (counts eight and nine). (Respondent’s briefat p. 184.). Respondent apparently urges that taken together, the two notes express continuing confusion overthe aider and abetter liability issue, but that the confusion is confined only to counts eight and nine rather than the homicide offense. (Respondent’sbrief at p. 188.) That argumentis in error. The judge respondedto the note concerning aider and abetter liability for the robbery of the Los Angeles Timesoffice. (19 CT 5147.) Thus, the jury’s second note expressing confusion about the extent of aider and abetter liability generally (19 CT 5149) was obviously directed at the homicide offense. 60 Evenif that were notso, the trial court’s failure to properly instruct is fully reviewable on appeal. This is so both becauseofthe trial court's sua sponte duty to _ properly instruct the jury on the general principles of law relevantto the issues raised by the evidence (People v. St. Martin (1970) 1 Cal.3d 524, 531), and because the substantial rights of the defendant were affected by the improperinstruction given. (Penal Code section 1259; see People v. Harris (1981) 28 Cal.3d 935, 956.) Indeed, a defendant does not have to request that an instruction be modified in order to have the issue reviewed on appeal where the error (as here) consists of a breach of the court’s fundamental duty to properly instruct. (People v. Smith (1992) 9 Cal.App.4th 196, 207 fn 20.) More important, respondent’s argument misplaces the responsibility for properly instructing the jury once it has indicated that it does not fully understand the legal matters at issue. The jury note indicated that the jurors simply did not understand the aider and abetter instructions previously given to them. The prosecutor even admitted as much.’° Under these circumstances, the court had a sua sponte obligation under Penal Code section 1368 to “clear up any instructional confusion expressed bythe jury." (People v. Beardslee (1991) 53 Cal.3d 68, 96-97.) Once trial courtis alerted to the need for an instruction, the court has an obligation "to give a correctly phrased instruction." (People v. Forte (1988) 204 Cal.App.3d 1317, 1323; disapproved on other grounds in People v. Montoya (1994) 7 Cal.4th 1027.) That is, "[A] court maygive only suchinstructions asare correct statements of the law. [Citation]." 's As the prosecutor admitted: “but we already told them torefer to the wholeset [of aider and abetter instructions] and that apparently did not doit...” (44 R.T. 5234.) 61 (People v. Gordon (1990) 50 Cal.3d 1223, 1275.) This duty requires the trial court to correct or tailor an instruction to the particular facts of the case even though the instruction submitted by the parties was incorrect. (People v. Fudge (1994) 7 Cal.4th 1075, 1110 [judge musttailor instruction to conform with law]; see also People v. Falsetta (1999) 21 Cal.4th 903, 924; People v. Malone (1988) 47 Cal.3d 1, 49.) The court must ensure that instructions adequately state the law and adequately assist the jury in resolving the issues the instructions address. (Peoplev. Key (1984) 153 Cal.App.3d 888, 898.) Since, as the prosecutor admitted, the jury had previously been referred to CALJIC 3.00,as well as the entire series of aiding and abetting instructions and still did not understandthe vicariousliability concept, simply referring the jury to CALJIC 3.00 again was not an appropriate responseto the jury’s question. "The responsibility for adequate instruction becomesparticularly acute when the jury asks for specific guidance." (Trejo v. Maciel, (1966) 239 Cal.App.2d 487, 498;see also McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833; accord, Bartosh v. Banning (1967) 251 Cal.App.2d 378. ) Further, "[w]here ... the need for more[instruction] appears,it is the duty of the judge ... to provide the jury with light and guidancein the performance ofits task." (Wright v. United States (D.C. Cir. 1957) 250 F.2d 4, 11.) “When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." (Bollenbach v. United States (1946) 326 US 607, 612-613 [90 L.Ed 350]; accord, Powell v. United States (9th Cir. 1965) 347 F.2d 156, 157-58; United States v. Harris (7th Cir. 1967) 388 F.2d 373, 377.) The reason for the requirementof clarity is simple: "To perform their job properly and fairly, jurors must understand the legal principle they are charged with 62 applying ... A jury's request for... clarification should alert the trial judge that the jury has focused on whatit believes are the critical issues in the case. The judge must give these inquiries serious consideration." (People v. Thompkins (1987) 195 Cal.App.3d 244,250.) Instead of clearing away the jury’s confusion with “concrete accuracy,”here, the trial judge merely referred the jury to an instruction that the prosecutor conceded that the jury did not understand. It was certainly of no helpto the jurors to be referred to instructions which their note clearly told the court they did not comprehend. (United States v. Gordon (9" Cir. 1988) 844 F.2d 1397, 1401-1402 [error to rely on original instruction where jury note expressed confusion regarding conspiracy counts]; United States v. Walker (9th Cir. 1978) 575 F.2d 209, 213 [trial court's response to jury confusion about a controlling legal principle was insufficient becauseit failed to eliminate that confusion].) Moreover, a "perfunctory rereading" of the general instructions which were previously given is insufficient as well. (United States v. Bolden (D.C. Cir. 1975) 514 F.2d 1301, 1308-09.) Thus, simply referring the jury to CALJIC 3.00 again did not adequately respondto the jury’s question about aider and abetter liability. Indeed, as one California court observed, "there is no category of instructional error more prejudicial than when thetrial judge makes a mistake in respondingtoaJury's inquiry during deliberations." (People v. Thompkins, supra, 195 Cal.App.3d 244, 252-253.) Indeed in Thompkins, the defendant’s first and second degree murder convictions were reversed becauseof the trial court’s failure to properly instruct in responseto the jury’s questions. (/d., at p. 252.) 63 CALJIC 3.00 Is Misleading in the Context ofthis Case Thereal thrust of respondent’s argument, however, is that because CALJIC 3.00 is an accurate statementof the law, and becausethetrial judge has discretion in determining how best to answerjuror questions, reference to CALJIC 3.00 alone avoids any issue involving misleading the jury. (Respondent’s briefat pp. 187- 188.) Such an argument will not withstand scrutiny. “Even an accurate statement of the law maybe erroneousasaninstructionifit is likely to mislead or misdirect a jury upon anissue vital to the defense...” (People v. Cole (1988) 202 Cal.App.3d 1439, 1446; disapproved on other grounds in People v. Mastia (2001) 25 Cal.4th 1180, 1191.) Moreover, although the precise nature of any amplification, clarification or rereading ofinstructions is a matter ofjudicial discretion (United States v. Bolden, supra, 514 F2d at p 1308; see also People v. Beardslee, supra, 53 Cal.3dat p. 97), nevertheless, "there are necessarily limits on that discretion." (United States v. Bolden, supra, 514 F.2d at p. 1308.) When the jury’s question indicates that it has focused on the controlling legal principle in the case, the court’s instructions must clear up the jury’s confusion. (People v. Thompkins, supra, 195 Cal.App.3d 252-253.) Asappellant explained in the openingbrief, the court’s supplemental instructions were inadequateto clear up the jury confusion. The instructions given were inadequate becausethey told the jurors that appellant was equally guilty with the actual perpetrator whenit was clear that the jury was not convincedthat appellant’s culpability was equal to that of Dearaujo. The instructionsleft the jury with no way of expressing this view in its verdict. The prosecution’s only theory of criminal culpability was felony murder. (8 R.T. 813.) CALJIC 8.27 guides the jury in its determination of whether the 64 requisite causal and temporal relationship actually exists in a felony murder prosecution. In that regard, the jury may well have been convinced that appellant had no criminal culpability for the homicideat all. As appellant pointed out extensively in issue IV in his opening brief (and that explanation is incorporated fully herein by reference), appellant wasn’t at the crime scene, did not know for sure that Dearaujo and Lyons would attempt a robbery, muchless a shooting, and did not find out about the incident until Ms. Los was already dead. Additionally, the trial judge found that as a matter of law the evidence wasinsufficient to show that appellant commandedor ordered the carjacking (38 RT 4658-4660) and the prosecutorherself told the Dearaujo jury that the evidence showedthat the carjacking was Dearaujo’s idea. (9 Supp. R.T. at p. 7089, 7094.) On thesefacts, a jury could reasonably conclude that the prosecution did not establish the required temporal and causal nexus. CALJIC 3.00 Is a Fatally Unbalanced Instruction in the Context ofthis Case In his openingbrief (at pp. 240-244), appellant noted that even aside from the problem that thetrial court’s response did not fully explain the requisite causal and temporal nexus, the supplemental instruction wasfatally unbalanced. It favored the prosecution's theory of the case and essentially directed a verdict for first degree felony murder. That is, when the jury specifically asked if appellant’s criminalliability as an aider and abetter was the sameas that of Mr. Dearaujo, by referring the jury solely to CALJIC 3.00 and NOT to CALJIC 8.27, the judge clearly implied that it was. (19 C.T. 5163.) Moreover, absent a thorough explanation of the principles of causation and temporalrelationships, such as those contained in CALJIC 8.27, (as well as the absenceof instructions on a lesser included offense, see Issue IV), the 65 jury obviously believed it had no legal theory by whichit could acquit appellant of first degree murder. Bothstate and federal decisions have long recognizedthat instructions"of such a characteras to invite the jury to draw inferences favorable to oneof the parties from specified items of evidence are impermissible,” because such an instruction is argumentative. (People v. Gordon, supra, 50 Cal.3d 1223, 1276, citing People v. Wright (1988) 45 Cal.3d 1126, 1135-1138.) A judge is prohibited from giving the jury argumentative instructions or comments favoring a certain party. (Cf. Quercia v. United States (1933) 289 U.S. 466, 469-470.) Federal and state due process notions underthe Fifth and Fourteenth Amendmentsas well as Cal. Const., art. I, §§ 7 and 15 demandthat whenthe jury has expresseddifficulty in resolvingan issueattrial, the court's response must be balanced and not unequally favoring either side. Nowhere in respondent’s argumentis this concern even addressed,let alone resolved. Having failed to address the issueat all, respondent necessarily concedes that referring the jury only to CALJIC 3.00 and not CALJIC 8.27 resulted in fatally unbalanced instructions and improperly favored the prosecution’s theory of the case. (See People v. Bouzas, supra, 53 Cal.3d at p. 480 [respondent's failure to engage arguments operates as concession]; Indeed, "[a]s the Attorney General ‘does not expand on the issue with... citation to relevant authority,"" the Court should deem the issue conceded. (People v. Solorzano , supra, 126 Cal.App.4th 1063, 1070 n.4 [quoting People v. Hardy (1992) 2 Cal.4th 86, 150].) PREJUDICE Respondentasserts that evenif the trial court erred in failing to refer the jury to CALJIC 8.27, appellant was not prejudiced. The jury note asking about aider and 66 abetter liability is dated March 30, 1998, two days before juror #10 was dismissed andthe final reconstituted jury began deliberations anew. Thus, respondenturges, there is no evidencethat the reconstituted jury that actually decided appellant’s guilt was in any way concerned aboutthe temporalor causal relationship between appellant and the underlying felony. (Respondent’s brief at p. 189.) Respondent’s argumentborders on the specious. Thetrial court’s error affected eleven ofthe jurors who eventually sat on the reconstituted jury. Thatis, even if the new juror on the reconstituted jury did not have any concernsabout the temporal and causal connection between appellant and the underlying felony, the other eleven jurors previously did have such a concern. Moreover, that concern was sufficiently pressing that they expressedit to the trial judge in their note. The trial judge improperly resolved that concern. Nowhere does respondent explain how the trial court’s erroneousinstruction that mislead 11 of 12 jurors could not have affected the final verdict in this case. Indeed,it is only necessary for one jurorto have voted differently in order to obtain a more favorable verdict. (See People v. Flood (1998) 18 Cal.4th 470 [question is whether any "rational juror, properly instructed, could have found [in favor of the defendant.]"; see also Duestv. Singletary (11th Cir. 1993) 997 F.2d 1336, 1339.) Moreover,if the twelfth juror had similar concerns, the eleven who had received the erroneousinstruction would havecited the trial court's previous directive to staunch anyfurther consideration. Thelikelihood that just this occurred is evidentin the reconstituted jury’s note specifically asking how to deal with concerns voiced by the new juror similar to those that affected the other eleven jurors during prior deliberations. That is, the foreman of the reconstituted jury sent the judge a note askingif the original jurors could simply “fill... in” new juror on 67 answersto questionsthat had been previously asked of and answered bythe court. (18 C.T. 5065.) Thetrial court responded that such a procedure waspermissible assumingthat the reconstituted jury’s concerns were the same. (19 C.T. 5163.)'° Thus, if the substitute juror had a similar concern, the jurors who had already submitted a question to thetrial court and received a response that improperly limited the jury's scope of consideration would have so informedthe substitute juror. For the reasons set forth above and in appellant’s opening brief, the trial court’s failure to even refer the jury to CALJIC 8.27, andinsteaddirect its focus to CALJIC 3.00, when the jury note clearly showedthat the jury was struggling with one of the most central vicariousliability issues in the case, amounts to a deprivation of federal and state due process underthe Fifth and Fourteenth Amendments. Moreover, because the courtfailed to clarify or fully explain the matters at issue for the jury, the error also violated the defendant’s Sixth Amendmentright to a jury trial and his Eighth Amendmentright to a reliable guilt 16 The jury note reads: [Jury question] “When deliberating anew, can we use our same questions and answers during the new deliberations or do we resubmitt (sic) some questions if we wantto fill the new jurors in on certain questions that came up before along with their answers.” [signed] March 30, 1998 Juror #3 [foreman] [Judge response] “You may not have the same questions as before, but to the extent that you do, you may use the same answers” (19 C.T. 5163.) 68 phase verdict in a capital case. 69 VI. CALJIC 3.02 WAS MISLEADING AND APPLIED AN IMPROPER STANDARD FOR A NONKILLER WHO AIDED AND ABETTED IN A FELONY MURDER CASE SUMMARYOFAPPELLANT’SARGUMENT As appellant explained in the prior issue, aider and abetter liability for a nonkiller in a felony murder case requires both a causal and temporal relationship between the underlying felony and the homicide. CALJIC 3.02, however substitutes a negligencestandard for those requirements. That is, CALJIC 3.02 requires that the nonkiller merely commit an actthe natural and probable consequences of which are a homicide. This standardis entirely different, and lowered the prosecution’s burden ofproofin a felony murdercasein violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. SUMMARYOFRESPONDENT’SARGUMENTS Respondenturges that appellant’s arguments wererejected in People v. Coffman and Marlow (2004) 34 Cal.4th 1, 106-107. Further, appellant did not make the federal constitutional objection to the instruction that is now urged on appeal, so the issue is waived. In any event, respondent argues that the issue lacks merit since the jurors were also instructed on CALJIC 3.01, CALJIC 8.80.1, and CALIIC 8.81.17, which fully advised them of the legal principles to be applied. (Respondent’s brief at pp. 189-194.) ERRORSINRESPONDENT’SARGUMENTS In brief, Coffman and Marlowis distinguishable because the versions of the instructions relied uponin that case are not the samein critical particulars as the instructions in this case. Further, the defense specifically objected to the instritction 70 at issue and appellant was not required to further object to the legal consequences of a denial of his objection. Finally, none of the instructions relied upon by respondent deal with the specific Constitutional issue raised here. Coffman and Marlow Is Distinguishable This court’s decision in Coffman and Marlow isclearly distinguishable from the facts of this case. Certainly it is true that in Coffman and Marlow this court rejected the defense argument that CALJIC 3.02 unconstitutionally relied on a negligence standard. (d. at p. 108.) In that case, however, this court relied on the additional instructions CALJIC 3.01, and particularly the special circumstance instruction CALJIC 8.81.17, to arrive at that result. The latter instruction specifically informed the jury that the defendant had to have the specific intent to kill. Ud., at pp. 106-107.) Moreover, because the jury returneda true finding on the special circumstance,any difficulties in CALJIC 3.02 were essentially moot. (/d., at p. 108.) Here, however, the version of CALJIC 8.81.17 that was read to the jurors told them only that the special circumstance was “not established if the attempted robbery was merely incidental to the commission of the murder.” (19 C.T. 5199; 43 R.T. 5145-5146.) The instruction given to appellant’s jury did NOT require the jury to find that appellant had the specific intent to kill. Certainly it is true that CALJIC 3.01 told the jury that an aider and abettor must act with the intent of committing, encouragingor facilitating the commission of the target crime. Without requiring a specific intent to kill, however(as the different version of CALJIC 8.81.17 required in Coffman and Marlow), CALJIC 3.01 does not, by itself, surmount the negligence standard set forth in CALJIC 3.02. For this reason Coffman and Marlowis not controlling. 71 No Waiver Withoutcitation to authority, respondent urges that the defense did not object to the instruction on the constitutional groundsasserted on appealso the issueis waived. (Respondent’s brief at p. 191.) Respondentis in error. Respondent concedes,as it must, that the defense objectedto all of the aider and abetter instructions as well as the special circumstanceinstruction on the groundsthat the evidence would not support the instructions. (Respondent’s brief at p. 190-191.) As long astrial counsel has identified the reason or basis for a trial objection or requested specific federal constitutional abridgements flowing from denial of the objection the request should be cognizable on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 436.) Evenif that was not the case, however,thetrial court’s failure to properly instructin this case is fully reviewable on appeal. In criminal actions, a claim of constitutionalerror in instructing a jury can almost alwaysberaisedinitially on appeal. (People v. Allen (1974) 41 Cal.App.3d 196, 201, fn 1; criticized on another ground in People v. Williams (1975) 51 Cal.App.3d 65, 67; see also Penal Code section 1259 [The appellate court may also review any instruction given, refused or modified, even though no objection was madethereto in the lower court,if substantial rights of the defendant were affected thereby.”].) Moreover, an appellate court is generally not prohibited from reaching questions that have not been preserved for review by a party. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6; see also People v. Smith (2003) 31 Cal.4th 1207, 1215; People v. Yeoman (2003) 31 Cal.4th 93, 117.) For these reasons, the federal Constitutional error is not waived and this court is not precluded from reviewing appellant’s claim. 72 The Errors Were Not Cured by Other Instructions Respondenturges that in combination, CALJIC 3.01, 8.80.1 and 8.81.17 correctly instruct the jury on the applicable principles of aider and abetter liability. (Respondent’s brief at pp. 192-194.) Respondentdoesnot- and cannot- argue that even the foregoing combination of instructions informedthe jury that appellant must harborthe specific intent to kill. Indeed, as explained above,it was that “specific intent to kill” language containedin the other version of CALJIC 8.81.17 that blunted a similar defense argumentin Coffman and Marlow. Nosuch language appearsin the version of CALJIC 8.81.17 read to appellant’s jury. More important, nothing in the instructions cited by respondent or given by the court requires the jury to find appellant guilty of murder based on anything greater than a negligence standard. As appellant explained in his openingbrief, the problem with the natural and probable consequenceportion of CALJIC 3.02is that it implies that an aider and abettor whointentionally aids the first crime (such as the unlawful attempted taking of a vehicle) is, by operation of law, automatically guilty of any other unintendedcrimejust so long as such crimeis the natural and probable consequenceofthe first crime. Such a result is not consistent with fundamental principles of our criminal law becauseit allows liability to be imposed based upon negligence even whenthe crime involved requires a different state of mind. (LaFave and Scott, Substantive Criminal Law (1986) § 6.8, p. 158.) Further, the natural and probable consequence doctrine is based on what a reasonable person would foresee as probable and natural consequencesand then uses that standard to conclusively impute a higher degree of criminal culpability to a person who maynot, in fact, have foreseen,let alone intended or deliberated, such 73 consequences. (LaFave andScott, supra.) In a prosecution for murder, the doctrine operates as an irrebuttable presumption that a non-killer(i.e., an aider and abettor to some contemplated offense) has malice and/or some alternative mensrea sufficient to establish guilt of murder, even though such a state ofmind could not be presumed and would haveto be provenin order to convict the actual killer. (/bid.) Therefore, the probability that the jury in this case may have understood CALJIC 3.02 to permit it to convict appellant of felony murder and special circumstance murder without a need to decideifhe had the otherwise requisite intent renders his convictions for those crimes invalid. (Cf. Stromberg v. California (1931) 283 U. S. 359, 368.) Thus, the special circumstancesfindings, and appellant’s sentence of death mustbe reversed. 74 VII. ALTERNATIVELY,IF THE JURY WAS PROPERLY INSTRUCTED ON THE NATURAL AND PROBABLE CONSEQUENCES DOCTRINE, THE TRIAL COURT ERREDIN FAILING TO MODIFY THE INSTRUCTION SUA SPONTE TO TELL THE JURY THAT THE TEST WAS OBJECTIVE RATHER THAN SUBJECTIVE SUMMARYOFAPPELLANT’SARGUMENT In his opening brief, appellant argued thatthe trial court erred by not modifying CALJIC No. 3.02 sua sponte to inform the jury that the determination of whethera particular crime wasa natural and probable consequenceof a criminal act requires the application of an objective rather than subjective test. (People v. Woods, supra, 8 Cal.App.4th at p. 1587; People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) The question of whetherthe ultimate crime wasthe natural and probable consequenceofthe target offense is not an issue of law. It is an issue of fact for the jury that must be resolvedin light ofall the circumstances. (People v. Croy (1985) 41 Cal.3d 1, 12, fn.5.) “The issue does not turn on the defendant's subjective state of mind, but depends upon whether, underall of the circumstances presented, a reasonable person in the defendant's position would have or should have knownthat the charged offense was a reasonably foreseeable consequenceofthe act aided and abetted by the defendant.” (People v. Woods, supra, at p. 1587; People v. Nguyen, supra,at p. 531.) Whether the shooting of Ms. Los wasa natural and probable consequence of the underlying felony was critical factual question for the jury to decide. The jury 75 note clearly showsthat the jury was having difficulty deciding where appellant’s culpability (if any) lay.'’ Under the facts of this case, there is no mandatory inference that appellant either knew Lyons and Dearaujo were goingto use the weapon to commit a robbery orthat he shared that purpose when he loaned them the weapon. Indeed, the jury could have foundthat the robbery itself was an independentact conjured up by Dearaujo and Lyons", or that the shooting of Ms. Los was an independentact done by a panicky teenager after the robbery attempt had been abandoned."® Therefore, whether the killing of Ms. Los wasin fact a natural and probable consequence of appellant’s activities was a key factual 17 As appellant pointed out previously, the jury note read: "I want to knowif a personis a principalif the non principal commits a crimeis the principal just as guilty of the crime also." (19 CT 5149.) The jury also requested clarification concerning appellant’s culpability, if any, for the robbery at the Los Angeles Timesoffice. That jury note read: “If A-B-C were involved in planning and talking about a robbery in oneplace - and B & started out to do the crime. They did not do the planned crimebut did another crime in the same area. What would A’s status be under the law? Dated March 24, 1998.” (19 C.T. 5146.) 18 As appellant noted previously, that was precisely the argument that the prosecutor made to codefendant Dearaujo’s jury during penalty phase summation. Shetold the jury: “They went to commit the carjacking of Yvonne because they wanted to go with Jack. It was his [Dearaujo’s] idea. They wanted to doit, he and Chris.” ({Emphasis added] 9 Supp. R.T. at p. 7089.) A few momentslater, the evidence wasinsufficient to show that appellant commandedor ordered the carjacking. (38 RT 4658-4660.) 9 Asappellant also pointed out previously, Lyonstestified that he and Dearaujo yelled at Ms. Los to open the doorofher car. Instead of complying, Ms. Losstarted her car and began to back up. (19 R.T. 2639.) It appeared to Lyons that Dearaujo then panicked and shot Ms. Los. (19 R.T. 2639, 2643; 21 R.T. 2909, see also 2840.) Lyonstestified that he was very surprised when he heard Dearaujo actually fire the gun. He then panicked when he saw Dearaujo was panicked. (21 R.T. 2909, see also 2840.) 76 question which only could have been resolvedbythe jury if they were properly instructed to apply an objective test. (Cf. People v. Fauber, supra, 2 Cal.4th at p. 834.) SUMMARYOFRESPONDENT’SARGUMENT Respondentfirst urges that appellant could be found liable for first degree murdereither as an aider and abettor or as a co-conspirator. Since the natural and probable consequencesdoctrine applies to both theories, it would support appellant’s conviction for first degree murder. (Respondent’s brief at pp. 194-195.) Further, there is no sua sponte duty to instruct that the natural and probable consequencestest is an objective one. Any such modification of the instruction must be requested and no such request was made here. (Respondent’s briefat pp, 195-197.) ERRORS INRESPONDENT’SARGUMENTS Insufficient Evidence That Natural and Probable Consequences Doctrine Applies Asappellant argued in his Penal Code section 1118.11 motion, the evidence showedthat he was not a majorparticipant in the homicide or the attempted robbery of Ms. Los. He was notpresent during the offense and any “counseling” or “encouragement” to shoot people(if in fact appellant counseled or encouraged) took place several days before the incident. Additionally, codefendant Dearaujo and Christopher Lyons proceededto the parking lot of the family fitness center and committed the crime on their own.” Appellant provided no planning,direction or control of their activities. As noted previously, this is exactly what the prosecutor 20 Indeed,thetrial judge found that as a matter of law the evidence was insufficient to show that appellant commandedorordered the carjacking. (38 RT 4658-4660.) 77 told Dearaujo’s jury. (9 Supp. R.T.at p. 7094.) At most, appellant provided a weapon that was subsequently used to commit the homicide. (18 CT 5034-5035.) Because appellant’s involvement in the Los homicide was so minimal, the case hereis easily distinguishable from the leading cases where the homicide was found to be a natural and probable consequenceofthe defendant’s actions. For example in People v. Hammond (1986) 181 Cal.App. 3d 463, the defendant was considered an aider and abetter to a homicide based on the natural and probable consequences doctrine where four factors were present. At the time the offense took place, the defendant waspresentacross the street from the crime scene. He watched while the robbery of a jewelry store took place and the owner wasshot. He then drove the getaway car andlater possessed someofthe stolen property. (/d., at pp. 466-467.) Here by contrast, none of those factors are in play. Mr. Williams was not present whenthe offense took place. Thus he certainly did not see the offense take place. Moreover, because he wasnotpresent and did not even knowthatan offense would take place, he was not in a position to prevent the offense or renderassistance to Ms. Los before she died. Indeed, Mr. Williams did even know that Ms. Los had been shot until well after the incident took place. In People v, Prettyman, supra, 14 Cal.4th 248, 273, this court determined that defendant Bray was an aider and abetter based on the natural and probable consequencesdoctrine underthe following circumstances: Bray and Prettyman were homeless personssleeping in a church courtyard along with “Vance” Van Camp. Bray repeatedly said to Prettyman: "We are going to get that fucker Vance. He has no idea who he is messing with. Heain't getting away with this shit." Prettyman nodded his head andsaid, "Yep. Okay." (/d., at p. 256.) Shortly thereafter, 78 Prettyman bludgeoned Van Campto death. (/d., at p. 256.) Mr. Williams’ case doesnot parallel the circumstances in Prettyman. Here, appellant wasnotpresent in the area where the homicide occurred. Moreover, appellant’s purported exhortation to “cap em”wasnotdirected at a specific person. It was a hypothetical response to a hypothetical question presented days before the homicide. (2 C.T. 374-388.) More importantly, the only eyewitness to the shooting, Christopher Lyons did NOTtestify that Ms. Los was shot becauseof appellant’s purported exhortation. Hetestified that she was shot because Dearaujo panicked. (19 R.T. 2639, 2643; 21 R.T. 2909, see also 2840.) Thus the shooting was an independentact and not the result of anything the defendant did or failed to do. In People v. Solis (1993) 20 Cal.App.4th 264 (disapproved on a different point in People v. Prettyman, supra 14 Cal. 4th 258), the defendant was found to be an aider and abetter under the following circumstances: the defendant and his confederates had an ongoing dispute with a rival group of young people. One night after a series of confrontations between the groups, the defendant picked up another confederate whom the defendant knew to be armed. The defendant drove his armed confederate to a park wherethe rival group congregated. As they approachedthe rival group, the defendant complied with his confederate’s direction to turn outthe car headlights. As the defendant drovecloser, the armed confederate shot andkilled one of the membersofthe rival group. Immediately after the shooting, the defendant drove the shooterto a place ofsafety. In this case, however, although Mr. Williams knew that Dearaujo was armed, Mr. Williams was not present whenthe incident took place: he did nottransport Dearaujo and Lyonsto the shopping center: he did not direct them to shootat anyone anddid notfacilitate their escape from the scene. Additionally, the evidence 79 was insufficient to show that Mr. Williams commandedorordered a carjacking. (38 RT 4658-4660.) Moreover,the prosecutortold the Dearaujo jury that the carjacking was Dearaujo’s idea andthat no one gave him stepby step instructions on how to do it. (9 Supp. R.T. at p. 7094.) Comparing the circumstances of Mr. Williams’ case to those set forth above (and in appellant’s openingbrief), the natural and probable consequencesdoctrine simply did not apply. Under any objective test, the homicide here was too attenuated and too remote from anything that appellantdid or failed to do to qualify as a natural or probable consequence ofhis actions. Thus,the trial court erred in giving the instructions andthe prosecutionerred in seeking a first degree murder conviction. Sua sponte duty to define terms with a technical meaning. Evenif an instruction on the natural and probable consequences doctrine was appropriate on the facts ofthis case,the failure to instruct the jury that the test was an objective one compels reversal. This is so because the type of test to be applied has a technical meaning within the instruction. It has long been the law thata trial court has a sua sponte duty to define terms which have a “technical meaning peculiar to the law.” (People v. McElheny (1982) 137 Cal.App.3d 396, 403; see also People v. Pitmon (1985) 170 Cal.App.3d 38,52; People v. Hill (1983) 141 Cal.App.3d 661, 668.) More important, the failure to define a technical term whichis an essential element of the charge may be reviewed as reversible federal constitutional error because it precludes the jury from determining every material issue presented by the evidence. (See Peoplev. Reynolds (1988) 205 Cal.App.3d 776; see also People v. Black (1994) 23 Cal.App.4th 667, 670-72.) 80 In that regard, “The rules governinga trial court’s obligation to give jury instructions without request by either party are well established. ‘Even in the absence of a request, a trial court must instruct on general principles of law that are ... necessary to the jury’s understandingofthe case.’ [Citations.] That obligation comesinto play whena statutory term ‘does not have a plain, unambiguous meaning,’ has a ‘particular and restricted meaning’[citation], or has a technical meaning peculiar to the law or an area of law [citation].” (People v. Roberge (2003) 29 Cal.4th 979, 988; see also People v. Hudson (2006) 38 Cal.4th 1002, 1012.) While it is certainly true that commonly understood terms need not be defined for the jury, if the jury expresses a lack of such “common understanding”, the court’s underlying obligation is to assure that the jury understandsits duties. (See People v. Kirkpatrick (1994) 7 Cal.4th 988, 1025, Mosk, concurring.) Nevertheless, the jury note here showsbeyondcavil that there was no sense of “common understanding” among jury members concerning the extent of appellant’s criminal culpability. Moreover, even whena trial court has no sua sponte duty to instruct initially, if instructions are given, the court has a duty to instruct correctly. (People v. Cummings (1993) 4 Cal.4th 1233, 1337; see also People v. Castillo (1997) 16 Cal.4th 1009 , 1015 [even whena trial court instructs on a matter on which it has no sua sponte duty to instruct, it must do so correctly].) As appellant explained in his openingbrief, since the 1996 decision in People v. Prettyman, supra, 14 Cal.4th 248, the form version of CALJIC 3.02 has been modified specifically to include an objectivetest.”) _In Prettyman this court noted 21 The instruction now includes the following language: 81 that informingthe juryof the target crime was a legal requirement for conviction underthe natural and probable consequencesdoctrine. Thus, even though the then existing CALJIC3.02 instruction did not contain such a requirement, this court imposeda suasponte duty ontrial courts to modify the instruction to include all the legal requirements. (/d., at pp. 265-266.) Similar to Prettyman, therefore, since a legal requirement for applying the natural and probable consequences doctrine to an aiding and abetting case is the objective test (People v. Woods, supra, 8 Cal.App.4th at p. 1587; People v. Nguyen, supra, 21 Cal.App.4th at p. 531), the trial court here had a sua sponte duty to modify CALJIC 2.03 to include the objectivetest. Respondent counters that in People v. Cox, supra, 53 Cal.3d 618, 699 this court specifically stated that any modification of CALJIC 3.00 to include the “natural and probable consequences”doctrine had to be requested. There was no sua sponte duty on thetrial court to modify the instruction to includeit. (Respondent’sbrief at pp. 196-197.) The most obvious problem with applying the Cox languageto this caseis that Cox dealt with CALJIC 3.00, not CALJIC 3.02, the instruction at issue in this case. “In determining whether a consequenceis natural and probable, you must apply an objective test based not on what the defendantactually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A natural consequenceis one whichis within the normalrange of outcomes that may be reasonably expected to occurif nothing unusualhas intervened.'Probable' meanslikely to happen." [Emphasis added.] 82 Additionally, however, Cox predates Prettyman by five years and as noted above, Prettyman mandatedthat the natural and probable consequenceslanguage in CALJIC 3.02 had to be augmented sua sponte to include an explanation ofthe target crime aided and abetted. Thus, the matter at issue in Cox has not only been effectively overruled by Prettyman,it has been extended by Prettyman. Most important, however, Cox does not say anythingat all about whether an objective or subjective test is to be applied. Thus Coxis entirely inapposite to the issue here. For these reasons, and thoseset forth in appellant’s openingbrief, the trial court’s failure to specifically tell the jury to apply an objective test to the natural and probable consequences doctrine compelsreversal. 83 VUIL. THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURORS TO DETERMINE WHETHER THERE WASA SINGLE OR MULTIPLE CONSPIRACIES VIOLATED APPELLANT’SFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS BY IMPROPERLY LOWERING THE PROSECUTION’S BURDEN OF PROOF ON A MATERIAL ISSUE OF FACT SUMMARYOFAPPELLANT’SARGUMENT The prosecutor’s alternative theory of vicariousliability was conspiracy. After a jury note asking whether there was one conspiracy or perhaps multiple conspiracies,the trial court simply respondedthat the jury had to decide whether there was a conspiracy. The question of whether there are multiple conspiracies, however,is a critical factual issue for the jury that requires specific instructionsthat were not given here. In the federal courts and in the California courts until 1989, the question of whether there wasa single or multiple conspiracies was deemedto be a jury question. This is so becausethe essenceofthe crime of conspiracyis the nature of the agreement. The question for the jury to decide is what did the conspirators agree to do? Was there one agreement encompassing multiple acts, or multiple agreements encompassing separate acts? trial judge who madethat determination would invade the province ofthe jury. With the decision in People v. Davis (1989) 211 Cal.App.3d 317, however, the Court of Appeal for the First Appellate District determined that the question was one of law and therefore no instructions were required. Relying on the holding of 84 People v. Ramos (1982) 30 Cal.3d 553, 589, [rev’d. on another ground in California v. Ramos (1983) 463 U.S. 992 [77 L.Ed.2d 1171, 103 S.Ct. 3446], the Davis court ruled that if there were multiple victims, there were multiple crimes(in that case, multiple solicitations). Therefore, since reasonable people would not normally disagree on the numberofvictims, the jury need notbe instructed to determine whether there wasa single or multiple crimes. Other state appellate courts have simply applied the Davis holding to conspiracy cases with no further analysis. The Davis holding, however, will not withstand analysis. Ramos was concerned with the statutory construction to be applied to robbery offenses. It did not even purport to examine conspiracy cases. Moreover, even in later conspiracy cases which haverejected the “numberof victims”test, the state appellate courts have refused to address issues of Constitutional double jeopardy, Due Processright to a fair trial and Sixth Amendmentright to a jury trial involved in whether the judge or the jury is required to make the final determination on the nature of the agreement. Nonetheless, because factual determinationsare the provinceofthejury, there is asua sponte duty to properly instruct the fact finder to determine whether the evidence shows one, or more than one conspiracy. The failure to so instruct improperly lowered the prosecution’s burden ofproof by removing a material factual issue from the jury’s consideration. Therefore, the error is reversible per se. Moreover, even if not reversible perse, the error underminedthe reliability of the guilt and penalty phase verdicts in violation of the Eighth and Fourteenth Amendments soreversalis required. SUMMARYOFRESPONDENT’SARGUMENT Respondent urges that since conspiracy was not chargedas a separate crime 85 but was only as a theory of conviction, it does not matter whether there wasbut a single or multiple conspiracies. (Respondent’sbrief at p. 197-201.) Further,trial defense counsel never asked for a specific instruction on the point and the pattern instructions given to the jury, CALJIC 6.10.5 and CALJIC 6.16 are correct statements of the law concerning conspiracy. (Respondent’sbrief at pp. 201-203.) Additionally, the Los shooting was not outside the conspiracy because the evidence showedthat the conspiracy was very broadly based. (Respondent’sbrief at pp. 203- 204.) Finally, appellant was not prejudiced because the jury note expressing concern over the numberof conspiracies was dated before juror #10 was replaced and the jury began deliberations anew. Thus, there is no showingthat the jury that actually adjudicated appellant’s guilt was at all concerned about the reach of the conspiracy theory in this case. (Respondent’s brief at pp. 204-205.) ERRORS INRESPONDENT’SARGUMENTS Inappropriate Response to Jury Note Inquiring about Single vs. Multiple Conspiracies The primary flaw in respondent’s argumentis that it does not cite even a single case that stands for the proposition that when conspiracyis usedas a theory of conviction instead of a charged crime, the numberof conspiracies makes no difference. Indeed, such an assertion makesno logical sense. The very essence of any conspiracyis that there must be an agreement. That is, what wasit that the conspirators agreed to do? (Braverman v. United States (1942) 317 U.S. 49, 53 [87 L. Ed. 23, 63 S. Ct. 99].) The juror note essentially askedthetrial court to clarify the nature of the agreement. That is, was there one agreement encompassing multiple acts, or multiple agreements encompassing 86 separate acts?** The fact that conspiracy wasusedas a theory of conviction rather than a charged crime doesnotalter this most basic issue. More important, it was this most basic issue concerning the nature of the agreementthatthetrial court failed to properly resolve for the jury. If there was a single conspiracy,as thetrial court’s instruction implies (if not directs), the nature of the conspiracy would have to be very broad. If the jury had been permitted to determine for itself whether there was but one conspiracy or a numberof conspiracies, the jury may well have decided the individual conspiracies were narrow in scope- a result likely in appellant’s favor. The jury note makesplain that the jury simply did not understand the law of conspiracy as explained in the instructions given bythetrial judge. Indeed,if the jury understood that there was only one conspiracy, there was certainly no need to ask if each offense constituted a new conspiracy. Despite the inquiry about multiple conspiracies,the trial court’s written responsetold thejury thatif it found a conspiracy, there was only one. (“Youare to determine from the evidence whether a conspiracy was formed.” (Emphasis added).) (19 C.T. 5166.)” As the defense counsel correctly noted, however,the 22 The jury note read: “When you deal with conspiracies, is every individual crime the start of a new conspiracy or does the conspiracystart at the first crime and every crimeafter that is just a continuanceofthe original conspiracy? Dated March 31, 1998.” (19 C.T. 5165.) 23 The judgeinstructed the jury: “You must determine whether the defendantis guilty as a memberof a conspiracy to commit the originally agreed upon crimeor crimes, and if so, whether the crime alleged in CountsI through XI wasperpetrated by a co-conspirator in furtherance of that conspiracy and wasa natural and probable 87 existence of one or more conspiraciesis a fact question for the jury, not a legal question forthe trial judge. (45 R.T. 5343.) Thetrial court’s response deprived the jury of the opportunity to determine whetherthere were different agreements for different counts, or whether there were no conspiratorial agreementsat all on some counts where the defendant was not even present. The jury should have beeninstructedto agree unanimously whether there was a single or multiple conspiracies. (See United States v. Echeverry (9th Cir.1983) 698 F.2d 375, modified, 719 F.2d 974, 975.) Thus,the trial court failed in its primary responsibility to properly resolve the jurors’ confusion concerming their fact finding role in a majorissue in the case, the extent of appellant’s vicarious liability. The failure to properly instruct the jury on its fact finding responsibilities on such a crucial issue is reversible per se because,“in the absence of such instructions, a court cannot ‘presume in support of the judgmentthe existence of every fact the trier could reasonably have deduced from the evidence.’ {citation]” (People v. Morocco (1987) 191 Cal.App.3d 1449 at p. 1353, fn 4.) No Waiver Respondent urges that the issue is essentially waived for appeal becausetrial defense counsel did not specifically ask for an instruction that told the jury to determine whether a single or multiple conspiracies existed and further, the pattern instructions to which defense counsel acquiesced are accurate statements of the law. (Respondent’sbrief at pp. 201-203.) The facts do not support respondent’s argument. During the discussions on the jury note,trial defense counsel remindedthe courtthat he initially objected to consequenceofthe agreed upon criminal objective ofthat conspiracy.” (43 R.T.5137 (Emphasis added).) 88 any conspiracy instructions. (45 R.T. 5343.) He also objected to the court’s proposed languagethat essentially reiterated the CALJIC pattern instructions because the language of the pattern instructions was too broad and did nottell the jury whenthe conspiracy began and ended. (/bid.) Further, the number of conspiracies was a fact question for the jury. (/bid.) After additional discussion and assurancesbythetrial court that the defense objections were not waived,trial defense counsel acquiesced in the answer given by the judge because it merely highlighted the pattern CALJIC instructions. (45 R.T. 5344.) Certainly, making the best of a bad situation thattrial defense counsel did not create does not amount to a waiver. (Cf. People v. Coleman (1988) 46 Cal.3d 749, 781, fn 26; People v. Calio (1986) 42 Cal.3d 639, 643.) Moreover, even if the facts were as respondent urges, respondent misperceives the problem. The responsibility for properly instructing the jury rests with thetrial judge, not counsel. As appellant explained in previous issues, "The responsibility for adequate instruction becomesparticularly acute whenthe jury asks for specific guidance." (Trejo v. Maciel, supra, 239 Cal.App.2dat p. 498 ; see also McDowell v. Calderon, supra, 130 F3d 833; accord, Bartosh v. Banning, supra, 251 Cal.App.2dat p. 387.) Further, "[w]here... the need for more [instruction] appears,it is the duty of the judge... to provide the jury with light and guidance in the performanceofits task." (Wright v. United States, supra, 250 F2d at p. 11.) "When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." (Bollenbach v. United States, supra, 326 USat pp. 612-613 [90 L.Ed 350]; accord, Powell v. United States, supra, 347 F2d at pp. 157-58; United States v. Harris, supra, 388 F.2d at p. 377.) 89 The reason for the requirement ofclarity is simple: "To perform their job properly andfairly, jurors must understandthelegal principle they are charged with applying... A jury's requestfor... clarification should alert the trial judge that the jury has focused on whatit believes are the critical issues in the case. The judge must give these inquiries serious consideration." (People v. Thompkins, supra, 195 Cal.App.3d at p. 250.) Additionally, Penal Code section 1138 "imposes a ‘mandatory’ duty to clear up any instructional confusion expressedby the jury." (People v. Beardslee, supra, 53 Cal.3d at pp. 96-97.) It is certainly true that the precise nature of any amplification,clarification or rereadingofinstructionsis a matter ofjudicial discretion. (United States v. Bolden, supra, 514 F.2d at p. 1308; see also People v. Beardslee, supra, 53 Cal.3d at p. 97.) Nevertheless, "there are necessarily limits on that discretion." (United Statesv. Bolden, supra. 514 F.2d at p. 1308.) The jury note here specifically told the court that the jury was confused over the nature and extent of any conspiracy. Instead ofclarifying the jury’s understanding of the consequencesofits decision, however, the court essentially paraphrased theinstructionspreviously given. Any reinstruction or amplification, however, should be fully sufficient to eliminate the confusion. (See, United States v. Bolden, supra, 514 F2d at 1308-1309.) It was certainly ofno help to the jurors to be given aninstruction that essentially reiterated instructions which their note clearly told the court they did not understand. (United States v. Gordon, supra, 844 F.2d 1397, 1401-1402[error to rely on original instruction where jury note expressed confusion regarding conspiracy counts]; United States v. Walker, supra, 575 F.2d at p. 213 [trial court's response to jury confusion about a controlling legal principle was insufficient becauseit failed to eliminate that confusion].) 90 More important, when evaluating a claim ofinstructional error, the reviewing court must assumethe jury could have believed the evidenceofthe party claiming error. (See, e.g., Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673- 674.) Moreover, the failure to properly instruct on a material factual issue is reversible unless "it appears 'beyond a reasonable doubtthat the error complained of did not contribute to the verdict obtained.'" (People v. Harris (1994) 9 Cal.4th 407, 424.) As noted above, a defendant has a constitutional right to have the jury determine every material issue presented by the evidence. Therefore, the error cannotbe cured by an appellate court weighing the evidence and determiningthatit was more probable than not that a correctly instructed jury wouldstill have found the defendant guilty. Reversal is thus compelled. Nature ofthe Conspiracy The real crux of respondent’s argument, however,is that the conspiracy is so broadly based, that any act performed by any of the conspirators during the commission of any of the charged offenses was within the ambit of a single conspiracy. In support of its argument, respondentcites the testimony of various prosecution witnesses who claimed various objectives for the group, including such things as “having fun”, “seeking adventure” and “terrorizing the neighborhood.” (Respondent’s brief at pp. 203-204.) In respondent’s view, this evidence showed that the object of the conspiracy was “ ‘having fun’,’ seeking adventure’ and ‘terrorizing the neighborhood’ by committing violent crimes.” (Respondent’sbrief at p. 204.) Thejury note, however, highlights the real problem with respondent’s argument: there was no overall agreement among the so-called co-conspiratorsthat encompassedall of the charged offenses. For example, conspicuously omitted from 91 respondent’s argument is any discussion ofthe robbery of the Circle K. As appellant explained in the opening brief, the jury asked whether any single conspiracy began with the “first” charged offense. Thefirst charged offense, however, was the robbery of the Circle K convenience store. That robbery could NOTbepart of a single conspiracy since it occurred the night BEFORE the purported organizational meeting at Natalie Dannov’s home.”* Thelaw is clear that a defendant cannotbe held liable vicariously for acts committed by others before the conspiracy even began. (See, e.g., People v. Marks (1988) 45 Cal.3d 1335, 1345; People v. Weiss (1958) 50 Cal.2d 535, 566; People v. Brown (1991) 226 Cal.App.3d 1361, 1372.) Moreover, CALJIC 6.19 [Joining a Conspiracy After its Formation] was NOTgiven,in this case, so the jury had no guidance whatsoever on the applicability of any conspiracy theory to the Circle K robbery. A trial court has a sua sponte duty to instruct on the general principles relevant to the issues raised by the evidence. (People v. Wilson (1967) 66 Cal.2d 749, 759.) Therefore, even thoughthe jury note madeplain the jury’s confusion aboutthe applicability to conspiracy to the counts alleged, since the trial court never instructed the jury that a conviction for the Circle K robbery could not be based on a conspiracy theory, appellant’s conviction for this count certainly mustbe reversed. (See People v. Marks, supra, 45 Cal.3d at p. 1345.)” 24 The robbery of the Circle K occurred in the early morning hours of May, 14, 1993. (27 R.T. 3729-3731, 3737.) The meeting at Dannov’sdid not take place until the following evening around 8 pm. (22 R.T. 3033.) 5 ‘It might be arguedthat the conviction for this offense could be upheld on an the alternate aider and abetter theory. Even if the aider and abetter theory was appropriate underthefacts of this case (whichit is not), if the reviewing court cannot determine whetherthe jury used a correct or an incorrect theory, the conviction must be reversed. (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) 92 Additionally, if, as the prosecutor argued the object of the conspiracy wasto earn “G”stripes and obtain money,it is hard to see how the death of Ms. Losfit into this overarching conspiracy. When Ms. Los wasshot, Lyons and Dearaujo were simply trying to obtain a vehicle to serve as transportation to a party. Party transportation was obviously not an attempt to earn “G”stripes or get money. Indeed, appellant told the police that everyone who committed a crime to get “G” stripes had to have a witness. (People’s Exh. 68, at p. 52.) There were no independentwitnesses from the Pimp Style Hustlers assigned to the Los incident to verify any claims that Lyons and Dearaujo might make concerningtheir activities. Additionally, there was certainly no evidence of any plan to rob Ms. Losofher valuables to make moneyorto take andstrip her vehicle for parts that could be converted to cash and putin an accountto benefit the group members. Moreover,the fact that appellant provided the weapon and suspected that Dearaujo and Lyons were “gonnado dirt” does not necessarily bring appellant within the ambit of any conspiracy. (See, e.g., Piaskowski v.Bett (7" Cir. 2001) 256 F.3d 687, 693-694 [petitioner’s presence at the scene of the crime andhis reference to “shit going down”wasconstitutionally insufficient to sustain a murder conviction based on a conspiracy theory].) Thus, if there was only one conspiracy, certainly the Los homicide and the Circle K robbery fell outside the ambit of that conspiracy. Nothing in the judge’s instruction required the jury to make that determination. In fact the opposite is true. The judge specifically instructed the jury that if it found a Nothing in the jury findings indicate which theory the jury usedto arriveatits decision. Moreover, here, since the jury note specifically mentioned the “first” crime in connection with its conspiracy inquiry,it is more likely than notthat the jury used the invalid conspiracy theory rather than an aider and abetter theory as the reason for the guilty finding on the Circle K robbery count. 93 conspiracy, the conspiracy would apply to ALL the offenses charged. (43 R.T. 5137.) Finally, even if there was but one conspiracy, the failure to properly instruct the jury to determineifall the charged offenses fit within it impermissibly lightened the prosecution’s burden ofproof and undermined appellant’s right to due process and a trial by jury as well asreliable capital guilt and sentencing determinations,all in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. PREJUDICE Respondenturges that since the jury note inquiring about the number of conspiracies was dated before the substitution ofjuror #10, there is no showing that the jury that actually decided appellant’s guilt harbored the same concerns. (Respondent’sbrief at pp. 204-205.) As with the previous issue, however, respondent’s prejudice argument borders on the specious. Thetrial court’s error affected eleven ofthe jurors who eventually sat on the reconstituted jury. That is, even if the new jurors on the reconstituted jury did not have any concerns about the number of conspiracies and their various objects, the other eleven jurors previously did have such a concern. Moreover, that concern wassufficiently pressing that they expressedit to the trial judgein their note. Thetrial judge improperly resolved that concern. If the substituted jurors raised concerns about the numberof conspiracies, the remaining jurors would havepointedtothetrial judge's prior improper responseto puttheir concernsto rest. Nowhere does respondent explain howthetrial court’s erroneous instruction that affirmatively misled eleven of twelve jurors did notaffect the final verdict in this case. Indeed,it is only necessary for one juror to have voted differently in order 94 to obtain a more favorable verdict . (See People v. Flood, supra, 18 Cal.4th 470 [question is whether any "rational juror, properly instructed, could have found [in favor of the defendant.]"]; see also Duest v. Singletary (11th Cir. 1993) 997 F.2d 1336, 1339.) Even if that were not so, respondentfails to address the reconstituted jury’s note specifically asking how to deal with concerns voiced by the new jurors similar to those that affected the other nine jurors during prior deliberations. That is, the foreman of the reconstituted jury sent the judge a note askingif the original jurors could simply “fill... in” new jurors on answersto questions that had been previously asked of and answeredbythe court. (18 C.T. 5065.) Thetrial court respondedthat such a procedure was permissible assuming that the reconstituted jury’s concerns were the same. (19 C.T. 5163.)”° Thus, respondent’s assertion that there is no indication that the reconstituted jury had any concernssimilar to the ones expressed by the prior jury is contradicted by the record. A fair reading of the juror note showsthat the reconstituted jury had precisely the same concernsas the prior jury and that concern wasresolved in 26‘ The jury note reads: [Jury question] “When deliberating anew, can we use our same questions and answers during the new deliberations or do we resubmitt (sic) some questions if we wantto fill the new jurors in on certain questions that came up before along with their answers.” [signed] March 30, 1998 Juror #3 [foreman] [Judge’s response] “You may not have the same questionsas before,but to the extent that you do, you may use the same answers” (19 C.T. 5163.) 95 exactly the same erroneous way. For these reasons andthoseset forth in appellant’s opening brief, appellant’s convictions and his death sentence mustbesetaside. 96 IX. THE TRIAL COURT ERREDIN FAILING TO REQUIRE THAT THE JURY AGREE UNANIMOUSLY THAT THERE WAS ONE OR MORE CONSPIRACIES AND THAT THE DEFENDANT WASPART OF EACH SUCH CONSPIRACY / SUMMARYOFAPPELLANT’S ARGUMENT Aside from, but related to the previous issue, there was a more pernicious problem with the conspiracy instructions in this case. Nowherein the instructions was the jury required to agree unanimously on the nature of the conspiracy (or conspiracies) nor were jurors required to agree unanimouslythat appellant was a memberof any such conspiracy (or conspiracies). Even though conspiracy was merely a theory of conviction rather than a charged offense in this case, the requirement for unanimity is not thereby suspended. Moreover, since the jury wasinstructed that the conspiracy theory applied to all of the offensesin this case, the error in failing to ensure unanimity requires reversal of all of appellant’s convictions. (Appellant’s opening briefat pp. 276-288.) SUMMARYOFRESPONDENT’SARGUMENTS Respondenturges that there is no sua sponte duty to instructthat the jury must agree unanimously on the conspiracy and that it must be found beyond a reasonable doubt. Unanimity is only required on the actual crime committed, not the theory under which the crime was committed. (Respondent’s brief at pp. 206- 208.) 97 ERRORS INRESPONDENT’SARGUMENT Respondent’s argument simply misses the point. Whileit is certainly true that the jurors need not agree unanimously on which theory of guilt they employ to reach a conviction for the target offense (Schad v. Arizona (1991) 501 U.S. 624, 630- 646), nevertheless, if conspiracy is used as a theory of conviction, jurors must agree at least on whatthe actual conspiratorial agreement was. (Cf. Braverman v. United States, supra, 317 U.S. 49, 53 [87 L. Ed. 23, 63 S. Ct. 99].) Nothing in the conspiracy instructionsgiven here tells them that. The dangeris that some jurors might think appellant was involved in one conspiracy, others might think he was involved in a different one and some might think he was not involved in any conspiracyatall. (Cf People v. Russo (2001) 25 Cal.4th 1124, 1132.) Indeed, this was exactly the problem expressed by the jurors in oneoftheir prior notes to the judge. Thatis, if appellant was involvedin a conspiracy to rob the Classy B liquorstore, but independently Lyons and Dearaujo decidedto rob the LA Timesoffice instead, what was appellant’s criminal liability?°’ Significantly,at trial the prosecutor argued that the purpose of the conspiracy was to get “G”stripes and money. (43 R.T. 5189-5190.) On appeal, however, respondenturgesthat the purpose ofthe conspiracy was “ ‘having fun’,’ seeking adventure’ and‘terrorizing the neighborhood’ by committing violent crimes.” (Respondent’sbrief at p. 204.) If the People cannot agree on the nature of the conspiracy, it is hard to imagine that the jury could. In fact, the jury note asking about vicariousliability for the robbery of the LA Timesoffice plainly demonstrates 27 ‘The note read: “If A-B-C wereinvolved in planning and talking about a robbery in oneplace - and B & started outto do the crime. They did notdo the planned crimebutdid another crime in the same area. What would A’sstatus be under the law? Dated March 24, 1998.” (19 C.T. 5146.) 98 that the jury was confused about the nature of any actual conspiracy agreement. More important, as explained in the prior issue, since the robbery of the Circle K and the Los homicide were outside the purview of any conspiracy theory, the failure ofthe trial court to require unanimity on the agreementthat constituted the conspiracy theory compels reversal. As this court observed in an analogous context: "a conviction may not be based on the jury's generalized belief that the defendant intendedto assist and/or encourage unspecified ‘nefarious' conduct." (People v. Prettyman, supra, 14 Cal.4th at pp. 267-268.) Without a unanimity instruction, the jury was simply left to speculate about whatever unspecified nefarious conduct might constitute the illegal conspiratorial agreementin this case. Thusthe lack of a unanimity instruction is fatal to any conviction based on conspiracy theory. Finally, as appellant also explained in the previousissue, although it might be argued that the conviction for these offenses could be upheld on the alternate aider and abetter theory, even if the aider and abetter theory was appropriate under the facts of this case (which it is not), if the reviewing court cannot determine whether the jury used a correct or an incorrect theory, the conviction must be reversed. (People v. Guiton, supra, 4 Cal.4th at p. 1130.) Nothing in the jury findings indicate which theory the jury used toarrive at its decision. Moreover, here, since the jury note specifically mentionedthe “first” crime in connection with its conspiracy inquiry, it is more likely than not that the jury used the invalid conspiracy theory rather than an aider and abetter theory as the reason for the guilty findings. For these reasons and the reasonsset forth in appellant’s openingbrief, appellant’s convictions must be reversed and his sentenceto death set aside. 99 X. THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY INSTRUCTING THE JURY ON CONSCIOUSNESS OF GUILT SUMMARYOFAPPELLANT’SARGUMENT The consciousness ofguilt instructions given at appellant’s trial were constitutionally infirm for two reasons. First, they created permissive inferences that were overbroad. Thatis, they allowed the inference of a guilty mentalstate from conductunrelated to the mentalstate; they permitted an inference of guilt of manyoffenses from a single untoward act or statement, and the jury could draw adverse inferences about a defendant’s guilt based solely on untoward conduct or statements by the codefendant. Second, the instructions are impermissibly argumentative. They highlight particular evidencefor the specific purpose of inferring consciousness of guilt. Effectively, they focused the attention ofthe jury on evidence favorableto the prosecution, thus lightening the prosecution’s burden ofproof. Compounding the problem,they placed the trial judge’s imprimatur on the prosecution’s evidence. Giventhe jury’s difficulties in resolving the whole question of appellant’s vicarious liability, the instructions given here were highly prejudicial. SUMMARYOFRESPONDENT’SARGUMENT Respondentfirst urges that consciousnessof guilt instructions have been repeatedly upheldby this court because they benefit the defense by cautioning the jury to carefully weigh evidence which might otherwise appear incriminating. Citing numerouscases, the prosecution argues that because ofthis favorable benefit, 100 the consciousnessof guilt instructions do not favor the prosecution’s theory of the case nor do they lessen its burden of proof. (Respondent’s brief at p. 210-211.) Respondentalso urges that CALJIC 2.03 was appropriate under the circumstances of this case because appellant attempted to mislead detectives in the statement he gave them. That is, he tried to minimizehisrole in the offenses. Further, even if his equivocations concerned collateral matters, the instruction is proper becausetheinstruction is not limited to specific charges but merely tells the jury how to evaluate particular evidence should the jury find that such evidence exists. (Respondent’s brief at p. 212.) Regarding CALJIC 2.06, respondentasserts that the instruction was appropriate because the prosecution does not have to prove conclusively that appellant attempted to suppress the weapon,it is sufficient that the jury could make that inference. (Respondent’s brief at pp. 212-213.) Finally, respondent urges that any error is harmless. The jury wasfree to disregard the instructions if no evidence supported them and the evidence against appellant was overwhelming. (Respondent’s brief at p. 213.) ERRORS INRESPONDENT’SARGUMENTS Consciousnessofguilt instructions are not beneficial to the defense. Respondent’sfirst argumentthat the instructions are beneficial to the defense is not well taken. Thefirst part of CALJIC 2.03 reads “If youfind that before this trial a defendant madea willfully false, or deliberately misleading statement concerning the crime for which heis now beingtried, you may consider such statementas a circumstance tending to prove the consciousnessof guilt.” (43 R.T. 5124.) The first part of CALJIC 2.06 reads: “ If you find that a defendant attempted to suppress evidence against himself in any manner, such as by 101 destroying the evidence, or by concealing evidence, such attempt may be considered by you as a circumstance tending to show a consciousnessofguilt.” (43 R.T. 5124.) Unlike CALJIC Nos. 1.00 and 2.90 whichtell the jury to considerall of the evidence, this language specifically highlights evidence that is favorable to the prosecution and unfavorable to the defense. As such, they appearto be argumentative. As appellant pointed out in his opening brief, argumentative instructionstend to unfairly single out facts favorable to one party while also suggesting to the jury that special consideration should be given to those facts. (Estate ofMartin (1950) 170 Cal. 657, 672.) CALJIC 2.03 and 2.06 clearly highlight evidence favorable to the prosecution and suggestthat it be treated with special consideration. That said, the last part of CALJIC 2.03 reads; “ However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination.” (43 R.T. 5124.) The last part of CALJIC 2.06 reads: “However, such conductis not sufficient by itself to prove that a killing was deliberated and premeditated, and its weight and significance,if any, are matters for your consideration.” (43 R.T. 5124.) In People v. Kelly (1992)1 Cal.4th 495, 532, this court explained that consciousnessof guilt instructions are permissible because: “If the courttells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence.” Nevertheless, because CALJIC Nos. 1.00 and 2.90already tell the jury thatit must consider and weighall the evidence,it does not appearthat the latter part of either instruction (CALJIC 2.03 or 2.06) tells the jury anything aboutthis type of evidence that the jury is not already required to consider. Moreover, if this language confers a benefit on the defense asthis court 102 suggests in Kelly, then the defense ought to be able to waive that benefit and precludethe instruction from being givenat all. (Cf. Cowan v. Superior Court (1996) 14 Cal.4th 367, 371 ["Permitting waiver.... is consistent with the solicitude shown by modern jurisprudence to the defendant's prerogative to waive the most crucial of rights. [Citation]"].) Obviously, however, that is not the case with these two instructions. Significantly, other than simply noting that this court has approved of these consciousnessof guilt instructions, nothing in respondent’s argument addresses these matters. CALJIC 2.03 is inapplicable to thefacts ofthis case. The record showsthat the prosecution requested CALJIC 2.03 becauseat the beginning of his interview the defendant denied any involvement in the offenses. (37 RT 4585.) As appellant explained in his opening brief, however, he was entirely truthful in his statementto the police about the persons who committed the shooting and hetold the police their names. Moreover, although the authorities accused him ofbeing at the scene, he explained that he wasnot there but waiting for a ride to go toa party. (Prosecution Exhibit 68, p. 7.) With the possible exception of two minorcollateral matters, - appellant noted Dearaujo and Lyons might or might not have been involved in other carjacking incidents (Prosecution Exhibit 68, p. 7), and a claim he did not know wherethe gun wasafter the Los homicide (Prosecution Exhibit 68, p. 12) - appellant truthfully answered the questions putto him. On appeal respondent does not take issue with the truthfulness of appellant’s statements to the authorities, nor does it dispute that any untruths werelikely related to collateral matters. Instead, respondent claims that appellant attempted to 103 minimizehis responsibility. That alone was a sufficient basis for the instruction. (Respondent’s brief at p. 211-212.) Omitted from respondent’s argument, however, is any acknowledgmentthat “minimization of involvement” wasnot the basis for giving the instruction. The basis for the instruction was that the defendant purportedly madea false statement. As appellant explained above andin his openingbrief, that basis is not supported by the record. Additionally, even if the instruction properly could be given ona basisnot urged by the prosecution, respondenthasnotidentified any particular misleading statement or statements that minimize appellant’s involvement. Instead, respondent simply points to the entirety of appellant’s statements to the police and characterizes them generally as inconsistent and misleading. (Respondent’s brief at p. 211.) This generalized referenceis hardly fair to the defendantto refute or this court to address. Moreover, "The reviewing court is not required to make an independent, unassisted study of the record in search of . . . grounds to support the judgment.It is entitled to the assistance of counsel. The appellate court mayreject an issue, evenifit is raised, if a party failed to support it with adequate argument." (People v. Hardy (1992) 2 Cal.4th 86, 150.) Respondent’s final argumenton this instruction is the assertion that the instruction does not assume the existence of any evidencerelating to a charge, but merely instructs the jury on how to evaluate such evidenceifit findsit. (Respondent’s brief at p. 212.) The problem with such a claim is that an instruction should not be given if there is insufficient evidence to support it. The jury could not makea rational inference of consciousness of guilt to the charged homicideif appellant’s statement about the homicide wasbasically truthful. 104 Moreover, as appellant also explained in his openingbrief, if the alleged false or misleading statements did not relate to the charged crimesor provide any basis for inferring the requisite mens rea, the instruction was inappropriate. (People v. Rankin (1992) 9 Cal.App.4th 430, 435-436 [The defendant’s false statement about wherehe got a stolen credit card wasirrelevant to the charged crimeofusing a stolen card. Indeed, the defendant never denied knowingthat the card wasstolen].) Here, the only possible inconsistencies between the facts set forth at trial and what appellant told police, were inconsistencies related to appellant’s knowledge of the disposal of the weapon and his knowledge of any other crimes Lyons and Dearaujo may have involved with. Neither of these inconsistencies was relevant to proving appellant’s mensrea asit related to his vicariousliability for the Los homicide. CALJIC 2.06 was improper underthefacts ofthis case. The prosecutortold the court that her request for CALJIC 2.06 was based on the fact that the murder weapon wasultimately given to Anthony Post and disassembled in an attempt to hide it. (37 R.T. 4596.) The evidence, however, showsthat Lyons gave Post the gun and someshell casings. He told Post to hold onto them because appellant would comebylater to pick them up. Before the police came by to pick up the gun, however, Post disassembled it, cleaned his fingerprints off of it and hid it. (25 RT 3455-3457.) Post also testified that early on the day the police arrested everyone involved,he offered to give the gun to appellant. (25 R.T. 3456.) Appellant told him to hangontoit, he wouldgetit later. (25 R.T. 3456.) Thus, nothing in Tony Post’s testimony suggests that appellant ordered (or even knew) that the gun wasto be disassembledto keep it from the police. Accordingly,these “facts” did not provide the basis for a logical andrational 105 inferencethat appellant intended to rob Ms. Los. Thus, because the alleged false statements did notrelate to the charged crimesor provide anybasis for inferring the requisite mens rea, the instruction was inappropriate. (People v. Rankin, supra, 9 Cal.App.4th at pp. 435-436.) Respondent simply claims that the facts supporting the inference need not be conclusively established before the instruction is given. (Respondent’s briefat p. 212.) Even assuming respondent’s assertion wastrue,at least as a general proposition, respondent does not demonstrate how the facts here provide any rational basis for the requisite inference. Absent such a showing, respondent cannot prevail. PREJUDICE Respondentasserts that even if the instructions should not have been given, any error was harmless. Theinstructions simply told the jurors how to weigh the evidenceifthey found it. Moreoversince the jury wasinstructed under CALJIC 17.31 to disregard any instructions that were inapplicable to thefacts, the jury would not apply the consciousnessofguilt instructions if no facts supported them. Further, since the evidence of appellant’s guilt was overwhelming anyway, any instructional error was harmless under any standard. (Respondent’sbriefat p. 213.) On the matter of evidence of guilt, there is no dispute that appellant’s culpability, if any, for the Los homicideis solely a vicarious one. Contrary to respondent’sclaim, the several jury notes expressing concern overthe reach of the vicarious liability concepts such as aider and abetter liability and conspiracy liability show that conviction was a very long way from a sure thing. In support of this argument, appellant invites the court’s attention to issues V, VIII, [X and XI, wherethe fallacies of these vicarious liability matters are discussed. Appellant 106 incorporates those arguments here by referencejust as if they were set forth here in full. Asto respondent’s argumentthat the jury was free to disregard these instructionsif they were not factually supported, respondent misses the point. As appellant explained above, the facts upon which respondentrelies to support these instructions do not permit a rational inference of the requisite mens rea. If respondent could draw an impermissible inference from these facts, the jury most certainly could. The danger of courseis that in a close case suchas this one, the jury would draw an impermissible inference against the defendant thereby unfairly tipping the balance in favor of the prosecution. For these reasons, and those set forth in appellant’s openingbrief, the trial court erred in giving the consciousnessof guilt instructions in this case and the error prejudiced appellant by tipping the balancein favor of the prosecution. 107 XI. THE EVIDENCE WAS CONSTITUTIONALLY INSUFFICIENT TO SUPPORT THE JURY’S ROBBERY-MURDERSPECIAL CIRCUMSTANCE FINDING AS TO APPELLANT, WHO WAS CONVICTED AS AN AIDER AND ABETTOR OR CO-CONSPIRATOR SUMMARYOFAPPELLANT’SARGUMENT In his openingbrief, appellant argued that in order to prove appellant’s aider and abettor or coconspiratorliability under the felony murder special circumstance here, the evidence must show that he was a majorparticipant in the offense and that he exhibited a reckless indifference to humanlife. (Tison v. Arizona (1987) 481 U.S. 137 [95 L.Ed. 2d 127, 107 S.C. 1676].) Reckless indifference requires a subjective appreciation that particular conduct creates a grave risk of death. Here, although there was evidence that appellant was involved a series of carjackings, there is no evidencethat he had any significant participation in the carjacking that led to Ms. Los’ death. In fact, he was not even present and did not know for sure that a carjacking would even take place. Further, because his participation was largely limited to making the weapon available to the perpetrators if they decided to actually commit a crime, he had no subjective awarenessthat his acts wouldlikely result in death. Thus the crime charged here was not proportional to the defendant’s involvement. SUMMARYOFRESPONDENT’SARGUMENT Respondentdisputes appellant’s claim of insufficient evidence. Respondent first notes that the trial court found appellant to be a major participant. The trial 108 judge concludedthat appellant was either the primary or the co-moving force in the group. Moreover, the Los incident wasnotisolated, but part of a larger pattern of crimes. Thus, the prosecution argued that in some respects appellant was “almost a 20" century equivalent of Fagen (sic) from Oliver Twist....” (36 R.T. 4535.) Further, the admonition to shoot persons whoresisted and furnishing a weapon to his “youthful recruits” was the equivalent of reckless indifference to humanlife. Appellant had to be aware that by furnishing a loaded gun to the people who were going to be doing a carjacking,the risk of resistance carried an extremelikelihood of death. (36 R.T. 4536.) (See Respondent’sbrief at p. 221.) Second, respondent arguedthat carjackingis a serious felony deserving of serious punishment and appellant directed or participated in several carjackings. (Respondent’s brief at p. 222-223.) Moreover, more than just providingthe pistol used in the Los homicide, appellant instructed Dearaujo and Lyons on whatsort of car to take and where to meet him after the carjacking occurred. (Respondent’s brief at p. 224.) On this evidence the jury could find that appellant was a major participant and acted with reckless indifference. (Respondent’s brief at p. 225.) ERRORS INRESPONDENT’SARGUMENTS Insufficient Evidence ofReckless Indifference Although cast as a ison analysis, a close reading of respondent’s argument showsthat it is nothing more than a “foreseeability” argument. Given the circumstanceslisted by respondent; i.e. participating in multiple robberies that were inherently dangerous felonies, by providing a weapon andbyprovidinginstruction on whatsort of vehicle to obtain, it was certainly foreseeable that a death might occur. Foreseeability however, is NOT the sameas reckless indifference and these 109 circumstances do not show a subjective awarenessthat such actions created a grave risk of death. Moresignificantly, as explained below, the prosecutor madevirtually that same argumentto the Dearaujo jury that appellant makes now on appeal. In Enmundv Florida (1982) 458 U.S. 782, the Supreme Court recognized that robbery is a serious crime deserving serious punishment, butis not so grievous an affront to humanity that the only adequate response would be the death penalty. Since life for the victim of a robbery is not over and normally is not beyond repair, the court concluded that death is an excessive penalty for the robber who,as such, does not take humanlife. It would be very different, the Supreme Court noted,if the likelihood of killing in the courseof a particular robbery were so substantial that one should share in the blame for the killing if he or she somehowparticipated in the felony, but the court found no factual basis for such a conclusion in Enmund'scase, despite his knowledgethat his confederates were armed. Enmundthuspoints to the defendant's appreciation of risk from his subjective standpoint. Moreto the point, as the Court explained in Tison "the possibility of bloodshedis inherent in the commission of any violent felony and this possibility is generally foreseeable and foreseen." ({Emphasis added] Jd., 481 U.S.at 151.) Foreseeability, therefore, is simply too low a standard for imposition ofthe death penalty. Ibid.) The "reckless indifference" standard cannot equal foreseeability because then "every felony murder accomplice [would be] arguably recklessly indifferent." (Rosen, Felony Murder and the Eighth Amendment Jurisprudence of Death (1990) 31 B.C. L. Rev. 1103, 1163-1167.) That is, the amorphousnature of "reckless indifference" would allow courts to impose the death penalty on any felony-murderer simply byfitting the facts of the case into a risk-oriented analysis. 110 (See Note: Constitutionalizing the Death Penaltyfor Accomplices to Felony Murder, 26 Am.Crim. L. Rev. 463, 489-490.) The "reckless indifference" standard of Tison v. Arizona is meant to describe a mental state short of intent to kill, yet beyond foreseeability. Its purposeis to "genuinely narrowthe class of personseligible for the death penalty" (Zantv. Stephens (1983) 462 U.S. 862, 877, [103 S.C..2733, 77 L.Ed.2d 235]) so that felony-murder liability alone does not permit execution. Moreover, because Tison specifically rejected foreseeability,it is not sufficient that a defendant should haveanticipated violence. As appellant explained in his opening brief, the "subjective awareness" standard of Tison requiresthat a defendant expected homicidal violence. Thus, it is NOT sufficient that there be simply a risk of violence, there must be a probability of death based on facts knownto the defendant. (See, e.g., Abram v. State (S.C.. Miss. 1992) 606 So. 2d 1015, at 1042.) Contrary to respondent’s argument, the evidence here does notfulfill that requirement. The events that led to the death of Ms. Los occurred suddenly and without any preexisting plan. Unquestionably, appellant admitted suppling a weapon and admitted knowing that Dearaujo and Lyons were “gonnadodirt” (Prosecution exhibit 68 at p.32.) In his statementto the police, however, appellant explained that “dirt” simply meant a crime of somesort, not necessarily even a robbery or a “jack.” (Prosecution exhibit 68 at p. 42.) Appellant went on noting that he would provide the gun to Lyons or Dearaujo for whatever purpose they intended, criminal or not. His exact words were that he would give them the gun anytime “they neededit - any time somebody have fun with somebody - whatever - you 111 know,it don’t matter.” (Prosecution exhibit 68 at p. 32.) Indeed, there was testimony that he provided the gun to Mondre Weatherspoon whosimply wentout in Natalie’s back yard and squeezedoff a few roundsinto the air (19 R.T. 2694) and later shot a roundinto the air in front of Chuey’s apartment. (31 R.T. 4164.) After obtaining the weapon, Dearaujo and Lyons walked around the parking lot to see if a relatively easy victim would randomly appear. When Ms. Los suddenly appearedin her vehicle, the carjacking attempt began. (19 R.T. 2632- 2633.) Not only did Dearaujo deliver the fatal shot, but appellant had no meaningful opportunity to counsel his companionsagainst rash actionor to intervene on behalf of Ms. Los. Moreover, even though appellant supplied the weapon for a possible carjacking, the jury could not have inferred a subjective awareness of a grave risk of death from thatfact alone. There was no evidencein this case that Dearaujo had displayed violent propensities in the past, or that appellant was awareofhis propensities. While Dearaujo had been involved in the prior Circle K robbery, he did not hurt anyone. Indeed,the weapon had not been fired in any of the purported crimesprior to the Los homicide. Asappellant pointed out in the opening brief, State v. Branam (Tenn. 1993) 855 S.W.2d 563, 570 is particularly close to the facts of this case. There, a robbery went sour whenthe victim began honking the horn ofher car and the triggerman shot her. (Id., 855 S.W. 2d at 570.) Although the defendant was physically present, he washeld not to have manifested reckless indifference. Like appellant herein, he was never in possession of a weapon and never personally confined the victim. There was no evidenceof a preconceivedplan to kill by the triggerman. The probable 112 awarenessthat the triggerman was armed was NOTenough,initself, to manifest reckless indifference. U/d., 855 S.W. 2d at 571.) Thefacts of this case are even weaker than Branham because not only was appellant NOTpresentat the scene, there is no evidence that appellant was aware that a carjacking would take place. Instead, the evidence showsthat appellant had a ride to a party in Anaheim butthat there wasn’t enough room for Dearaujo and Lyonsin the car. Thus,if they wanted to go to the party, they would have to obtain their own vehicle. (People’s Exh. 68, at pp 9, 39.) Forall appellant knew, Dearaujo and Lyons would abandonthe enterprise and decide that the risk of getting caught outweighedthe desire to go to the party. Certainly on the two prior occasions when appellant’s associates attempted to carjack vehicles (De George and (Nolin) Meza), they abandonedthe enterprise and ran away whenthe victims refused to cooperate. (25 R.T. 3503; 27 R.T. 3795.) Indeed,the trial court ruled that as a matter of law the evidence wasinsufficient to show that appellant commandedor ordered the carjacking. (38 RT 4658-4660.) If there wasstill any lingering doubt about the matter, the prosecution’s primary witness, Christopher Lyons dispelled it. Lyons told the police that appellant did NOTorder them to get a car; instead, he and Dearaujo actually volunteered to getacar. (20R.T. 2833.) Respondent’s claim that the evidence showingthat appellant urged group membersto “cap em”if victims offered resistance (36 R.T. 4535-4536) was a sufficient showing that appellant acted with reckless indifferenceis similarly flawed. Not only was appellant’s commentoffered in response to a hypothetical question but appellant provided whatwasessentially a hypothetical answerto a hypothetical 113 situation. (2 C.T. 374-388.) More important, contrary to respondent’s argument on appeal, Lyons never ascribed the cause of the shooting to appellant’s direction to “cap em.” In fact, the opposite is true. Lyonstestified that the shooting took place because Dearaujo panicked. (19 R.T. 2639, 2643; 21 R.T. 2909,see also 2840.) Lyons said that he wasvery surprised when he heard Dearaujoactually fire the gun. Lyons then panicked when he saw Dearaujo was panicked. (21 R.T. 2909,see also 2840.) Lyonsalsotestified that the purpose ofcarrying the gun was to “Demand[a car] from the owner, try to scare them outof their car” (18 R.T. 2622), if necessary, by threatening them with a gun or knife. (18 R.T. 2622.) Additionally, every prior attempted robbery or carjacking (except the Circle K robbery) was preceded by the same purported admonition to kill resisters. Significantly, NONEofthose other robberies resulted in injury or even a discharge of the weapon, let alone death. Thus, appellant’s theatrical rhetoric to “cap ‘em” adds nothing to his subjective awareness that death waslikely to ensue from an attempted carjacking. This is not a situation where the defendant directed a specific attack on a specific individual andtold the assailants to kill. Instead, this was mere braggadocio by inexperienced(and likely intoxicated) teenagers fantasizing aboutlurid possibilities. Moreover, as appellant explained previously, despite this tough rhetoric, on the two occasions whenvictims actually offered resistance prior to the Los incident (DeGeorge and (Nolin) Meza), the perpetrators ran away. (25 R.T. 3503; 27 R.T. 3795.) Additionally, as appellant pointed out in his opening brief, even the most 114 inexperienced “wannabe”robber would recognize that shooting a gun in a parking lot where there are people around,is not a particularly good wayto steal a car. Indeed,if the plan is to steal a car but the weapon hasto befired, the noise draws so muchattention that the vehicle theft is fatally compromised. The weaponis actually useful only if the threat to use it overcomes the victim’s will to resist. Moreover, the defense notes that after codefendant Dearaujo shot Ms. Los, he did NOT subsequently steal the vehicle. He ran away. (19 R.T. 2644.) Thus, the actual use of the weapon completely compromisedthe plan to steal the car rather than being an integral part ofit. Significantly, even the prosecutor’s argumentto the Dearaujo jury attrial underminesits argument on appeal. Attrial, the prosecutor told the Dearaujo jury that appellant was NOT the prime moverin this transaction nor were his prior instructions on how to commit a carjacking a significant factor in the shooting of Ms Los. The carjacking and the method for committing the offense were Dearaujo’s idea. Indeed, the prosecutorspecifically argued “They went to commit the carjacking of Yvonne because they wanted to go with [appellant to a party in Anaheim]. It was his [Dearaujo’s] idea. They wanted to do it, he and Chris.” (9 Supp. R.T. at p. 7089 (Emphasis added).) A few momentslater, Ms. Nelson reiterated to the jury “He’s [Dearaujo] doingthis all on his own. [para.] There’s no one there giving him step by step instructions on how to commit a carjacking..” (9 Supp. R.T. at p. 7094.) Given these circumstances, Lyons’testimony fatally underminesthetrial court’s conclusion that appellant was a prime moverin this tragedy or that appellant was subjectively aware that his conductcarried a grave risk of homicidal violence. 115 Moreover, as appellant previously explained, since Mr. Dearaujo had organic brain damage and was borderline mentally retarded (Supplemental R.T. Vol. 7 at p. 6681), it is doubtful that Dearaujo even had the capability to meaningfully reflect on a decisionto pull the trigger. Thus, the Los shooting was "a rash impulse hastily executed." (Cf. People v. Munoz, supra, 157 Cal.App.3d at p. 1009.) It was a reflexive act by a panicky and borderline mentally retarded teenager. Unfortunately, the bullet accidentally hit a vital spot. (Cf. Jackson v. State, supra, 575 So. 2d 181 at pp. 192-193; see also People v. Dillon, supra, 34 Cal.3d 441, 487-489.) Significantly, the evidence showsthat nothing the defendant did or failed to do was absolutely essential to the commission of this homicide. Moreover, the prosecutor’s argument before the Dearaujo jury leaves no doubt that the People’s position wasthatthe actual carjacking of the Los vehicle was Dearaujo’s idea and the shooting was Dearaujo’s responsibility. In short, appellant was not responsible for inciting, directing or carrying out this homicide. At most, appellant was aware that a robbery might take place and that by supplying the weapon,it was foreseable that there would be violence. As appellant noted previously, however, foreseeability is NOTthe standard and is not sufficient to support the felony murder special circumstance. (ison v. Arizona, supra, 481 U.S. at p.151.) | For the reasonsset forth herein and in appellant’s opening brief, the evidence is insufficient to establish the elements of “major participation” and “reckless indifference” that are necessary to sustain the special circumstance finding. Thus, the true finding on the felony murderspecial circumstance mustbe set aside and appellant’s death sentence reversed. 116 XII. THE TRIAL COURT ERRED IN REQUIRING APPELLANT WILLIAMS TO WEAR LEG RESTRAINTS DURING THE TRIAL SUMMARYOFAPPELLANT’SARGUMENT A defendant may not be shackled in the courtroom except on a showing of manifest need andas last resort in an extraordinary case. Here, despite proper behavior in the courtroom,thetrial judge allowed the bailiffs to imposerigid leg restraints based solely on the deputy’s assessmentthat a few instancesofjail misconduct overa five year period awaiting trial warranted shackling in the courtroom. The improper imposition of these restraints violated federal and state due process underthe Fifth and Fourteenth Amendments, his Sixth Amendment rights to counsel andto presenta defense, andto reliable guilt and penalty phase determinations under the Eighth Amendment. (Appellant’s opening brief at pp.327- 343.) SUMMARYOFRESPONDENT’SARGUMENT Respondentfirst urges the claim was waived because there was not a proper objection at trial. Second, respondent urgesthat the claim has no merit because in the proper exercise of the court’s discretion,it relied on appellant’s priorjail incidents as the reason to imposetherestraints. Finally, respondent urges that any error is harmless because there is no showingthat the jury was awareofthe restraints. (Respondent’sbrief at pp. 225-229.) 117 ERRORS INRESPONDENT’SARGUMENTS No waiver Respondent’s waiver argumentis not well taken. Essentially, respondent's waiver argumentis based on the notion that acquiescence in a shackling decision already made constitutes waiver. It does not. Asappellant explained in his openingbrief, right after the judge gave the jurors preliminary instructions and dismissed them for the evening, he told counsel that the court security people were asking that appellant be shackled. The court security people expressed some concern to the judge and apparently told him that there had been somepriorincidentsin the jail involving appellant. Thetrial judge noted that he assumedthat trial defense counsel wasnot prepared to deal with the issue. Trial defense counsel respondedthat he was prepared to address the matter and that he had warnedhis client to expect shackling. Defense counsel thensaid that the defendant had not been a problem for anyonein jail transportation and that the jail incidents the court referred to were pretty old. Nevertheless, he had informed the defendant to expect to be shackled after another incident in another courtroom that took place the week prior. (16 R.T. 2182-2183.) At the first opportunity after the restraints were imposed, appellant complained that they were “very, very uncomfortable.” (16 R.T. 2211.) From the foregoing,it is apparentthatall parties understood that the decision had already been madethat the defendant was going to be shackled. Thetrial judge was merely reciting his reasons for the record. Certainly there was no reason for counsel to anticipate that the defendant would be shacked or to inform the defendant 118 that he likely would be shackled unless it was already clear to all concerned that the shackling decision had already been made. Moreover, although defense counsel did not specifically state that he objected to shackling, the clear purpose of his commentsthat the defendant had not been a problem for the transportation personnel andthat the jail incidents were pretty old wasto inform the judge that shackling was not warranted here. If, as respondent suggests, the defense had no objection to the shackling, counsel’s comments would have been both irrelevant and unnecessary. By acquiescingin trial court decision that had obviously already been made, defense counsel was simply makingthe best of a bad situation that he did notcreate. Those circumstances do not amountto a waiver. (Cf. People v. Coleman, supra, 46 Cal.3d at p.781, fn 26; People v. Calio, supra, 42 Cal.3d at p. 643.) Shackling Was Improper Respondentarguesthat because ofthe priorjail incidents involving the appellant, the decision to use the restraints in court was a perfectly appropriate exercise of the trial court’s discretion. (Respondent’s brief at p. 228.) Respondentis im error. Whileit is certainly true that a trial judge has some discretion to impose physical restraints (People v. Sheldon (1989) 48 Cal.3d 935, 945), that discretion is not unbounded. In People v. Duran (1976) 16 Cal.3d 282, 290-291, this court stated the generalrule applicable to physical restraints and "reaffirm[ed] the rule that a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints." 119 The court further explained the discretionary standard for the imposition of restraints, noting: "The showing ofnonconforming behaviorin support of the court's determination to impose physical restraints must appear as a matter of record and, except where the defendant engages in threatening or violent conduct in the presenceofthe jurors, must otherwise be made out of the jury's presence. The imposition of physicalrestraints in the absence of a record showingofviolenceora threat of violenceor other nonconforming conductwill be deemedto constitute an abuse of discretion. (/d., at pp. 291-292.) Significantly, under the standardset forth in Duran,the trial court's discretion is relatively narrow. (/d., at pp. 292-293; People v. Cox, supra, 53 Cal.3d 618, 651.) Thus,the "manifest need" required for the imposition of physical restraints "arises only upon a showingofunruliness, an announcedattentionto escape, or '[e}]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . .' Moreover, '[t]he showing ofnonconforming behavior ... must appear as a matter of record ... . The imposition of physicalrestraints in the absence of a record showingofviolence or a threat of violence or other nonconforming conductwill be deemed to constitute an abuse ofdiscretion." (People v. Cox, supra, 53 Cal.3d at p. 651(internal cites omitted, emphasis added).) The federal standard is even higher-- shackling a defendantis only justified "as a last resort, in cases of extreme need, or in cases urgently demandingthat action." (Wilson v. McCarthy (9th Cir. 1985) 770 F.2d 1482, 1485; see also J/linois v. Allen (1970) 397 U.S. 337, 344.) Respondent’s brief does not explain howthe priorjail incidents meet the “manifest need” standard for shackling a defendant. As appellant pointed out in his 120 opening brief, not only did the trial court simply take the bailiffs word forit that shackling might be necessary, but the judge failed to develop a record supporting the shackling determination. Most importantly, however,the trial judge failed to grasp his essential constitutional responsibilities in making the shackling decision. Asthe facts of this case amply demonstrate, the trial judge held only a perfunctory hearing prior to deciding to maintain the restraints on appellant. At the time, the apparentrationale for the restraints was the sheriff's request based on defendant’s purportedjail incidents. (16 R.T. 2182.)** Moreover, as explained previously, in context it appears that the decision to shackle the defendantalready had been made. Significantly, prior to the introduction of the leg brace, the defendant had been present for a numberof hearings over a five year period. Nothing in the conduct of the defendant in court suggested a needfor these restraints. Indeed, nothing in the record suggested that the defendant had been in any waydisruptive in court during those five years. Moreto the point, the sum total of the trial court’s recitation offacts supporting the shackling decision was that jail deputies would be requesting restraints and that the judge had beentold that there were somejail incidents over the years that would support the request. (16 R.T. 2182.) Even assuming arguendothat in some “off the record”briefing, the sheriff's 8 Although the court andthe parties only mentionedin passingthat there was another incident involving another defendant in another courtroom, to the extent that any shackling decision was premised on an incident having nothing to do with appellant, the trial judge unquestionably abused hisdiscretion. 121 department somehow describedthejail incidents in similar factual detail as the prosecution’s penalty phase presentation, those facts still would notjustify leg restraints. All of the purported jail incidents took place in various tanks where the defendantandhis alleged accomplice Deloney were attempting to establish dominance orpositions of influence within the prisoner community. (See ,e.g., 49 R.T. 5845-5846, 6139.) There was no showingthat any ofthese incidents were related to any attempt to escapeorthat they posed any real challenge to the authority of correctionalstaff. Additionally, as the facts set forth in appellant’s opening brief demonstrate, the most severe violence involving appellant in jail revolved around fisticuffs (see e.g. 49 R.T. 5839-5840, 5848, 5861-5862), certainly no matchfor the modern weaponry ofcorrectional staff or even the courtroom bailiff. Significantly, nothing in the record demonstrates that the sheriff's department told the trial court about the chronological relationship between the observation of these incidents and the imposition ofleg restraints. That is, there is no showingthat the incidents were observed shortly before the restraints were imposed. Whatthe later trial record showsis that the last jail incident involving appellant fighting with another inmate took place on December 29, 1995 (48 R.T. 5583) three years before the trial court was asked to impose physical restraints. (18 CT 4995.) Astrial defense counsel pointed out, by the time the court orderedrestraints,the jail incidents were already quite old and notindicative of appellant’s behavior in court. (16 R.T. 2182.) Moreover, it appears that appellant had been in court at least 14 times after that incident (2 CT 452 - 483, 495, 3 C.T. 708, 728) andastrial defense counsel noted, appellant had no problems. Related to the foregoing, nowhere in respondent’s brief does it address the 122 lack of support in the record for the decision to shackle the defendant. (See People v. Mar (2002) 28 Cal.4th 1201, 1222.) Whatthe trial record revealsis that thetrial court simply acquiescedin the sheriff's department request for restraints. Blanket acceptanceofthe bailiffs recommendation, is not the standard for imposing physicalrestraints. In order for the court to impose physical restraints, there must be a showing ofneed based "on facts, not rumor and innuendo...". (People v. Cox, supra, at p. 652.) Nothing in the record showsthat the evidence presented by the court security personnelto thetrial court even remotely approached that standard. (People v. Duran, supra, 16 Cal.3d. at p. 291.) From the record available, it is apparent that the trial judge simply acceded to the desire of the Sheriff's Department for absolute security based onlittle more than a precaution. That is, nowhere in the record doesthetrial court indicate what incidents the sheriff’s departmentrelied upon or what the defendant’s role was in any of these incidents. These circumstances show unequivocally thatthetrial judge failed to make an independent factual determination of the necessity for the restraints. (People v. Duran, supra \6 Cal.3d 282, 291 [trial court, not security personnel, must make the determination that there is evident necessity for the restraints used to preserve courtroom security]; (see also People v. Jacla (1978) 77 Cal.App.3d 878, 885: "[T]he determination to imposerestraints and the natureof the restraints to be imposedare judicial functions to be discharged by the court, not delegated to a bailiff"; and People v. Jackson (1993) 14 Cal.App.4th 1818, 1825: "Thetrial court here abusedits discretion in abdicating its responsibility for courtroom security to the bailiff and/or sheriff's personnel.") Finally, nothing in thetrial court's comments indicates it was awareofthe 123 procedural and substantive requirements established in Duran that should have governedits determination of defendants’ objection to the leg restraints. (Peoplev. Mar, supra, 28 Cal. 4" at p. 1222.) Under these circumstancesthe reasonscited by the court fail to demonstrate the “manifest need” for shackles, andthusthetrial judge abusedhis discretion as a matter of law. (Cf. Deck v. Missouri (2005) 544 U.S. 622 [ 125 S.Ct. 2007, 2015; 61 L.Ed.2d 953] [death penalty reversed becausetrial judge failed to make clear why shackles were necessary at this time with this defendant, thus abusing his discretion]; People v. Cox, supra, 53 Cal.3d at pp 650-651. ) PREJUDICE Respondent urges that since there is nothing on the record showingthat jurors saw the shackles, appellant cannot demonstrate prejudice. (Respondent’sbriefatp. 228.) Respondentis again in error. Asappellant explained in his opening brief, if the defendant was improperly shackled in the courtroom,the error is of constitutional magnitude. (See Deckv. Missouri, supra, 544 U.S. 624 [125 S.Ct. 2007, 2009; 61 L.Ed.2d 953] Estelle v. Williams (1976) 425 U.S. 501, 504-505; Spain v. Rushen (9" Cir. 1989) 883 F.2d 712.) Thus, there is no burden on the defense to provethe error wasprejudicial, prejudice is presumed. (Deck v. Missouri, supra, 544 U.S. 635 [125 S.Ct. 2007, 2015; 61 L.Ed.2d 953]. The burdenis on the respondent to prove that the error was harmless beyond a reasonable doubt. (Chapmanv. California 1967) 386 U.S.18, 24; see generally Yates v. Evatt (1991) 500 U.S. 391, 402-405 [114 L.Ed.2d 432, 111 S.Ct. 1184] (overruled on a different ground in Estelle v. McGuire (1991) 502 U.S. 62, 72).) 124 In this instance, there is nothing on the record showing one way orthe other whetherthe jury could see appellant’s leg restraints.”” Nevertheless, as appellant explained in his openingbrief, in view of the controversy that erupted after a sharp- eyed juror perceived that black witnesses were handcuffed while white witnesses were not(see IssueI infra.), the trial judge should have taken it upon himself to determineif any jurors were similarly aware of whether the defendant wasrestrained. Indeed,as the bailiff noted, in another courtroom,the trial judge almost always had the defendants shackled with leg restraints, but placed a wooden screen at counsel table so the jurors would not see. (30 R.T. 4092.) There is nothing in this record indicating that there was a skirt or other device at counsel table to prevent the jurors from seeing the defendant’s leg restraints. More importantly, this court has no factual basis upon which to make a determination that the jurors could NOTsee the leg restraints. (See Deckv. Missouri, supra, 544 U.S. 634 [125 S.Ct. 2007, 2015; 61 L.Ed.2d 953] [Death sentence reversed even though record ambiguous about whether the jury saw the restraints or the effect the restraints had on the jury].) Whetheror not the jury can see the shackles is only one part of the prejudice analysis. (Cf. Holbrook v. Flynn (1986) 475 U.S. 560, 569.) There are other areas of 29 Thetrial judge noted that although he had never seen the locking leg restraints that he proposed to place on the defendant, he had beentoldthat they could not be seen. (16 R.T. 2182.) Later the prosecution suggestedreal leg shackles and chains in place ofthe locking leg restraint. Discussing the leg shackles and chains, the defense noted that such devices might not be seen if the defendant did not stand up. (17 R.T 2211.) Nowherein the record, however, does the court or counsel say whether the leg restraints actually worn could be seen. 125 prejudice resulting from the use of physicalrestraints. Nowherein respondent’s brief does it deal with these other issues. For example, in the opening brief appellant pointed out that a shackled defendant may feel confused, frustrated, or embarrassed, thus impairing his mental faculties. Indeed, here, the trial court was aware that the brace was “very, very uncomfortable” and was “cutting” the defendant. (16 R.T. 2211.) Another problem is that communication between the defendant and his lawyer may be impaired by any physical restraints. While this circumstance does not appear directly from the record in this case, given the defendant’s obvious discomfort and distaste for the physicalrestraints, there is little question that he was distracted by the leg braces. Yet anotherfactor to consideris that the dignity and decorum ofthe judicial proceedings maysuffer. Significantly, the United States Supreme Court has stated that trial courts must considerthis factor before ordering restraints. (/linois v. Allen, supra, 397 U.S.at p. 344.) In this situation, the dignity and decorum of judicial proceedings wasdestroyed by the totally uncalled for and unnecessary shackling. Shackling of any defendant without proper due process constraints insults the system as a whole. Certainly nothing in the record suggests that the trial court even consideredthis factor. Finally, the restraints may be painful to the defendant. Here, for example, not only did appellant complain about how uncomfortable the restraints were, but modern shackles inflict enough pain to call into question the propriety of their use. (United States v. Whitehorn (D.D.C. 1989) 710 F.Supp. 803, 840, rev'd on unrelated grounds sub nom. in United States v. Rosenberg (D.C.Cir. 1989) 888 F.2d 1406.) 126 Similar to the circumstancespresented here,all of these considerations came into play in People v. Mar, supra, 28 Cal.4th 1201. In Mar, the issue was whether the trial court’s unjustified use of a “stun belt” restraint was prejudicial. The belt wasneveractivated and the facts demonstrate that the jury probably could notseeit. More importantly, there was nothing in the record to show whateffect the belt had on the defendant while testifying or on his demeanor. (/d., at p. 1213.) Nonetheless, finding that the use of such a physical restraint was prejudicial, this court concluded that “Even whenthe jury is not aware that the defendant has been compelled to weara [restraint], the presence of the [restraint] may preoccupy the defendant's thoughts, makeit more difficult for the defendant to focus his or her entire attention on the substance of the court proceedings, and affect his or her demeanorbefore the jury....” (People v. Mar, supra, 28 Cal.4th at p. 1219.) That wasprecisely the situation here. The defense urged that the restraints were unnecessary and informedthe court that the leg braces were “very, very uncomfortable.” As appellant pointed out in his openingbrief,it is difficult to imagine that despite the perception that he had done nothing to warrant these special restraints and the obvious discomfort they inflicted, the restraints nonetheless left the appellant’s ability to concentrate on the proceedingsorparticipate in his defense completely unimpaired. More important, as appellant explained previously, because prejudice is presumed whena defendant is impermissibly shackled (Deck v. Missouri, supra, 544 U.S. 635), the burden is on respondent to demonstrate beyond a reasonable doubt that the shackling did not affect the outcomeof this case. Respondent’s only answer to the concernsset forth in Maris the bald assertion that the jury probably did not 127 see the shackles. Not onlyis that assertion not corroborated, as explained above,it is a woefully inadequate substitute. Under the circumstancesofthis case, therefore, the objection to the shackling decision was not waived; the decision to impose physical restraints wasa clear abuse of discretion unsupported by the facts of record and appellant was prejudiced by having to wearthe painful restraints whether or not the jury was able to see them. Virtually none of these matters were even addressed in respondent’sbrief, let alone adequately addressed. For the reasonsset forth herein and in appellant’s opening brief, the shackling error compels reversal. 128 PENALTY PHASE ISSUES XIII. APPELLANT'S DEATH SENTENCE, IMPOSED FOR FELONY MURDERSIMPLICITER,IS A DISPROPORTIONATE PENALTY UNDER THE EIGHTH AMENDMENT AND VIOLATES INTERNATIONAL LAW SUMMARYOFAPPELLANT’SARGUMENT The essence of appellant’s argumentis that felony murder, while a serious crime, should not be not amongthat narrow class of cases that are so grievousthat the only appropriate penalty is death. As explained in issue XI, the Eighth Amendmentprohibition against cruel and unusual punishment embodies a proportionality principle. In evaluating whether the death penalty is disproportionate for a particular crime or criminal, the United States Supreme Court has applied a two-part test, asking (1) whether the death penalty comports with contemporary values and (2) whetherit can be said to serve one or both of two penological purposes,retribution or deterrence of capital crimes by prospective offenders. It is undisputed that the prosecution's only theory of criminal culpability in this case was felony murder. (8 R.T. 813.) Thus, appellant becameeligible for a death sentence — and a death sentence was imposed ~ based solely on the commission of an unintentional killing, with no other fact about him or the crime making it aggravated. Moreover, because the Constitution requiresthat the death penalty be reserved for the offenders with the greatest moral culpability, persons who commit felony murder, especially an accidental or unintentional homicide do notfall 129 into this category. The recent Roper and Atkins decisions from the United States Supreme Court recognize that lesser mental states of mentally retarded people and children also lessen the mens rea of the offender. Similarly, therefore, persons who commit unaggravated, unplanned murders- such as unintentional homicides resulting from felony murder - also have lesser mens rea and are thusnot deserving of the ultimate penalty either. Significantly, the vast majority of states recognize that an offender whose crime wasfoundbythetrial court to be unintentional and unaggravated byany fact other than the robbery underlying his felony murder conviction,lacks the requisite mensrea to be deserving ofsociety's harshest punishment.*” Underthe "evolving standards of decency" standard that the Supreme Court uses when analyzing the "cruel and unusual" clause of the Eighth Amendment, these numbers demonstrate a national consensus against the execution of an offender whose crime wasnot intentional and was aggravated only by the felony underlying the death sentence — the robbery. Additionally, international normsare persuasive authority in interpreting the Eighth Amendment's ban on cruel and unusual punishment. The United Statesis "virtually the only western country still recognizing a rule which makesit possible ‘that the most serious sanctions known to law might be imposed for accidental homicide.’ (Roth and Sundby, The Felony Murder Rule: A Doctrineat Constitutional Crossroads, 70 Cornell L. Rev. 446, 447-48 (1985). England, where *0 See appellant’s opening brief at pp. 355-356 for a discussionofstate laws on the matter. 130 the doctrine originated, abolished the felony-murderrule in 1957, and the rule apparently never existed in France or Germany. Additionally, Article 6 (2) of the International Covenant on Civil and Political Rights ("ICCPR"), to which the United States is a party, also provides that the death penalty may only be imposedfor the “most serious crimes." (ICCPR, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp.(No. 16) at p. 52, U.N. Doc, A/6316 (1966), 999 U.N.T.S. 171, entered into force on March 23, 1976 andratified by the United States on June 8, 1992.) For these reasons, the imposition of the death penalty on a person who has killed negligently or accidentally fails the first part of the proportionality test. It is simply contrary to evolving standards of decency and does not comport with contemporary values. Imposition of the death penalty for felony murder simpliciter fails the second part of the proportionality test as well. That is, the death penalty for felony murder simpliciter does not serve either of the penological purposes required by the Supreme Court — retribution and deterrence. Retribution mustbe calibrated to the defendant's culpability which, in turn, depends on his mental state with regard to the crime. An unintentional homicide involvesa very mucha less culpable mental state that an intentional killing. Further, deterrence is not served because, the death penalty simply cannot deter a person from causing a result he never intended and never foresaw. SUMMARYOFRESPONDENT’S ARGUMENT Respondenturgesthat contrary to appellant’s argument, California law requires a showing of moral culpability before the death penalty may be imposed on a felony murderer. Here, the jury was instructed in accordance with CALJIC 8.80.1 131 that appellant must have acted with reckless indifference andas a major participant before the robbery felony murderspecial circumstance could be foundto betrue. Respondentarguesreckless indifference and major participation in the underlying felony provide the requisite moral culpability for imposition of the death penalty on a felony murderer, regardless of whetherthe actual homicide wasnegligent or accidental. (See Tison v. Arizona, supra, 481 U.S.at p. 158.) Further, since international law does not prohibit the imposition of the death penalty so long as American standardsof decency are met, there is no violation of international law. (Respondent’s brief at pp. 229-231.) ERRORS INRESPONDENT’SARGUMENTS To the extent respondent’s argumentis simply that the Tison factors of “reckless indifference” and “major participation” provide the requisite moral culpability for the unintentional homicidein this case, respondentis in error. In this case, the evidenceis insufficient to support either factor. As explained in Issue XI supra, there is no evidence that appellant had any significant participation in the carjacking that led to Ms. Los’ death. In fact, he was not presentand did not know forsure that a carjacking would even take place. Further, his participation was limited to making the weapon availableto the perpetrators should they actually decide to commit a crime. Giventhese circumstances, appellant lacked the subjective awarenessthat his acts would posea greatrisk of physical harm, let alone death. Moreover, if a further showing was required,the defense notes that appellant previously loanedthe pistol to other teenagers who attempted to commit crimes with it and no violence ever occurred. In fact, in prior instances, whenthe targets of the carjackings refused to 132 comply, the perpetrators simply ran away. The weapon wasneverfired at all. Even the prosecution’s primary witness, Christopher Lyonstestified that the purpose of the weapon wassimply to scare people into giving up their property. (18 R.T. 2622.) Nothingin this evidence showsthat appellant subjectively anticipated bloodshed,let alone homicidal violence. As additional reasons why the evidence does not support a true finding that appellant acted with reckless disregard or as a majorparticipant in the Los homicide, appellant hereby incorporatesall of his arguments from issue XI in both his opening brief and the reply brief on this matter as though they wereset forth here in full. Tison is No Longer Good Law Aside from the foregoing, there is a deeper issue to be resolved. Should a non killer who wasnotpresentat the scene and who hadnospecific intent to kill be death eligible? . Appellant is not death eligible under the facts of this case because death is a disproportionate punishmentfor vicarious criminalliability, particularly where the defendant obviously did notkill and had no specific intent to kill. That is, given the evolving standards of decency encompassedby the Eighth Amendment, vicarious liability for felony murder precludes not only execution but death eligibility as well. To the extent that Tison substitutes reckless indifference and major participation for direct involvementanda specific intent to kill, Tison and its companion cases Cabanav. Bullock (1986) 474 U.S. 376 [88 L. Ed. 2d 704, 106 S. Ct. 689] and Hopkins v. Reeves (1998) 524 U.S. 88 are not only aberrations in the law, they have been effectively superseded by thelater cases ofAtkins v. Virginia (2002) 536 U.S. 304 [122 S. Ct. 2242, 153 L. Ed. 2d 335]; Roper v. Simmons (2005) 543 U.S. 551 133 [125 S. Ct. 1183, 161 L. Ed. 2d 1] and morerecently, Kennedy v. Louisiana (2008) __US.__ [171 L. Ed. 2d 525, 128 S. Ct. 2641].) Asappellant pointed outin his openingbrief, although the Eighth Amendment does not specifically prohibit disproportionate sentences nordoesit contain an express mandate for individualized punishment, the Supreme Court has held that the cruel and unusual punishmentclause of that Amendmentbans sentences that are grossly disproportionate to the crime for which the defendantis convicted. (See, e.g., Solem v. Helm (1983) 463 U.S. 277 [103 S.Ct. 3001, 77 L.Ed.2d 637].) Additionally, in Woodson v. North Carolina (1976) 428 U.S. 280 [96 S.Ct. 2978, 49 L.Ed.2d 944] (followed in Lockett v. Ohio (1978) 438 U.S. 586, 603- 04, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973]), the Court set forth the requirements of individualized sentencing: “lW]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendmentrequires consideration of the character and record ofthe individual offender and the circumstances of the particular offense as a constitutionally indispensablepart of the processofinflicting the penalty of death.” ( Woodson, 428 U.S.at 304, 96 S.Ct. at 2991.) In her dissenting opinion in Enmundv. Florida (1982) 458 U.S. 782 [102 S.Ct. 3368, 73 L.Ed.2d 1140], Justice O’Connor explained the proportionality conceptthis way:“In sum, in considering the petitioner's challenge, the Court should decide not only whetherthe petitioner's sentence of death offends contemporary standards asreflected in the responsesoflegislatures and juries, but also whetherit is disproportionate to the harm that the petitioner caused and tothe petitioner's 134 involvementin the crime, as well as whether the procedures under which the petitioner was sentencedsatisfied the constitutional requirementof individualized consideration set forth in Lockett.” (Enmund, 458 U.S. at 816, 102 S.Ct. at 3386-87 (O'Connor, J., dissenting).) In the recent case of Kennedy v. Louisiana, supra, the Court reiterated the principles that guide its decision making when determiningthe sorts of offenses that make a defendant death eligible. In Kennedy, the Court observed that the Cruel and Unusual Punishment Clause of the Eighth Amendmentsprings from the evolving standards of decency that mark the progress of a maturing society. Thatis, the standard for extremecruelty "’itself remains the same, but its applicability must changeas the basic moresof society change.’ (Citation.)” (Kennedy, supra, at U.S. __3 128 S.Ct. at p. 2660.) Since punishment must be graduated and proportional to the crime, while informed by evolving standards, capital punishment must "be limited to those offenders who commit 'a narrow category of the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution." (Citation) (Kennedy, supra, at__—sUS.__—5 128 S.Ct. at p. 2660.) Applying these decadesold principles to the universe of death eligible crimes and defendants, in Enmund, the Court held that the Eighth Amendmentbarred the imposition of the death penalty on a defendant whodid nottake life, attempt to take life, or intend to take life. (Enmund, supra, 458 U.S.at pp. 789-793.) The Court reiterated the fundamental, moral distinction between a "murderer" and a "robber," noting that while "robbery is a serious crime deserving serious punishment,"it is not like death in its "severity and irrevocability." (Enmund, supra , at 797, 102 S.Ct. 3368, 73 L. Ed. 2d 1140 (internal quotation marks omitted).” Thus, the crime of 135 vicarious felony murder would be disproportionate to the offense and the death penalty could not be imposed. Nevertheless, several years later, in Tison v. Arizona, supra, the Court revisited the scope of the death penalty and addressed whether proofof "intent to kill" was an Eighth Amendmentprerequisite for imposition of the death penalty. Writing for the majority, Justice O'Connorsaid that it was not, and that the Eighth Amendment wouldbe satisfied by proof that the defendant had acted with "reckless indifference to human life" and as a "major participant" in the underlying felony. (Tison, supra, 481 U.S.at pp. 158.)"’ Justice O'Connorexplainedthat some unintentional murders may be amongthe most inhumane and dangerous. Further, the “reckless indifference” to humanlife by a “major participant” may evince as much moralculpability as a specific intent to kill. (U/d. at pp. 157-158.) That said, in choosing actual killers as examples of "reckless indifference" murderers whose culpability wouldsatisfy the Eighth Amendmentstandard, Justice O'Connor eschewedany distinction betweenactual killers and accomplices. In fact, it was Justice Brennan's dissent which argued that there should be a distinction for Eighth Amendmentpurposes betweenactual killers and accomplices and that the state should have to proveintentto kill in the case of accomplices (Tison v. Arizona, supra, 481 U.S. at pp. 168-179 [dis. opn. of Brennan,J.].) Even in Tison, however, the Court specifically held that mere liability for 3! Cabana vy. Bullock (1986) 474 U.S. 376 [88 L. Ed. 2d 704, 106 S.Ct. 689] and Hopkins v. Reeves (1998) 524 U.S. 88 do not require this finding to be made by a jury, but nevertheless require this form of mensrea to be established at some point in the case, even on appeal. 136 felony-murderaloneis not sufficient to warrant either the imposition of the death penalty or a true finding on a special circumstance. (Tison v. Arizona, supra, 481 U.S. 137, 151, [95 L.Ed. 2d 127, 107 S.C. 1676].) The "reckless indifference" standard of Tison is meant to describe a mental state short of intent to kill, yet beyond foreseeability. Its purpose is to "genuinely narrow the class of persons eligible for the death penalty" (Zant v. Stephens, supra, 462 U.S. at p. 877, [103 S.C..2733, 77 L.Ed.2d 235]) so that felony-murder liability alone does not permit execution. Subsequently, the Supreme Court held in Roper and Atkins that the execution ofjuveniles and mentally retarded personsviolates the Eighth Amendment because the offender has a diminished personal responsibility for the crime. (Kennedy v. Louisiana, supra, at____—-U.S.__; 128 S.Ct. at p. 2650.) Theselatter cases again hold that the Eighth Amendmentnarrowstheclass ofpersonseligible for the death penalty to those whoparticipate in the most serious crimes and who bear extreme responsibility for those crimes. Thus, death is not an appropriate punishmentin situations where the defendant has a diminished personal responsibility, such as juveniles and mentally retarded persons. In Kennedy, the court continued on that same theme concluding that under the “evolving standards of decency”as evidencedbylegislatures and jury verdicts, the death penalty is not appropriate for crimes where the defendantdid notkill. Thus, even a heinouscrimelike the rape of a child is not a crime for which the death penalty could be imposed. (Kennedy v. Louisiana, supra, ___U.S.__; [128 S.Ct. at p. 2660.].) Although ison has never been formally overruled, Tison and its companion 137 cases of Cabanav. Bullock, supra, and Hopkins v. Reeves, supra, are at best on the fringe of Constitutional acceptability. Felony murderabsentanintentto kill expands the death penalty beyond the most culpable offenders. Although claiming to narrow the class of offender for whom the death penalty was appropriate (see Zant v. Stephens, supra, 462 U.S.at p. 877), Tison actually went beyond the most culpable. The Court unilaterally expandedthe class of death eligible defendants to those who did NOTkill or have a specific intent to kill but who nevertheless possessed the other characteristics of reckless indifference and majorparticipation. The recent case ofKennedy v. Louisiana, supra, has put the Tison holding squarely in jeopardy. Examining the larger question of deatheligibility in the context of the rape of a child, the Court recognized that there was a certain amount of inconsistency in its own case law onthe ultimate reach of the death penalty. The Court admitted that it wasstill “in search of a unifying principle....” (Kennedy, supra, at _-U.S.___; 128 S.Ct. at p. 2659.) Nevertheless, the Court reaffirmed that whatever the circumstances, it would closely adhereto the principle that instances in which the death penalty may be imposed must be very narrow. (/bid.) In Kennedy, the Court specifically rejected the notion that the death penalty could be imposed on a defendant whodid not kill. Perhaps it restates the obvious, but the defendant here was accused as an accomplice to an unintentional killing; he did not kill Ms. Los. As appellant pointed out in his opening brief, imposition of the death penalty on non-killer accomplices or conspirators has always been problematic. "The non- triggerman convicted of felony murderis three times removed from the locus of blame:the killing is murder by reason of the felony-murderrule, the defendantis 138 responsible for the killing under accomplice liability principles, and he faces the executioner becauseof the mannerin which anotherperson killed. Such a person maybeat the outer reaches of personal culpability, yet still face death." (Garett, R., Depravity Thrice Removed: Using the 'Heinous, Cruel or Depraved' Factor to Aggravate Convictions ofNontriggermen Accomplices in Capital Cases (1994) 103 Yale L.J. 2471, 2473 (Emphasis added).) The fault with the Tison criteria is seen in cases suchat this one where the defendant wasnot present, did not have an intentto kill, obviously did not kill and did not even knowthat a crime necessarily wouldtake place - let alone a homicide.” Moreover, as appellant also explained in his opening brief, under the Eighth Amendmentproportionality principles, the critical inquiry is not whether the appropriate procedures were followed to impose the death penalty, but rather, whether the defendant’s conduct under the circumstances wasindividually blameworthy enoughthat death is the appropriate punishment. (See Cokerv. Georgia (1977) 433 U.S. 584 [97 S.Ct. 2861, 53 L.Ed.2d 982].) Imposing the death -penalty solely based on the Tison factors present in this case, violates the Eighth Amendmentproportionality principles. Just as significantly, the death penalty for felony murder for a non killer who does not possesthe specific intent to kill does not serve the purposesofeither %2 As appellant has repeatedly noted throughout the briefing, he was not present and did not knowthat a homicide might take place. Moreover, the prosecution concededthat appellant did NOTentertain a specific intentto kill.It wasfor that reason that CALJIC 8.80.1 was specifically modified to exclude the “intent to kill” language (38 R.T. 4656-4662) and the Tison factors of “reckless indifference” and “major participation” were substituted. (43 R.T. 5144-5145.) 139 retribution or deterrence. Retribution mustbe calibrated to the defendant's culpability which, in turn, depends on his mentalstate with regard to the crime. Here, obviously, appellant did not harbor a specific intentto kill, thus his moral culpability was considerably less than that of an intentional killer. Indeed, any unintentional homicide involvesa less culpable mental state that an intentional killing. (See Enmund, supra, 458 U.S., at 798 ("It is fundamentalthat ‘causing harm intentionally must be punished moreseverely than causing the same harm unintentionally" (citation omitted).) Moreover, as Enmundalso pointedout: "putting Enmundto death to avenge two killingsthat he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end ofensuringthat the criminal gets his just deserts." (Jd., at 801.) Moreimportant, in his dissent in Tison, Justice Brennan addressed the notion that “reckless indifference” is somehow the moral equivalent of intentional action and thus may be punished equally severely. As Justice Brennan explained: «a determination that the defendant acted with intent is qualitatively different from a determination that the defendant acted with reckless indifference to humanlife. The differencelies in the nature of the choice each has made. Thereckless actor has not chosen to bring aboutthe killing in the waythe intentional actor has. The person who choosesto act recklessly and is indifferent to the possibility of fatal consequences often deserves serious punishment. But because that person has not chosen to kill, his or her moral and criminal culpability is of a different degree than that of one whokilled or intendedto kill. The importanceofdistinguishing between these different choicesis rooted in our belief in the "freedom of the human 140 will and a consequentability and duty of the normal individual to choose between goodandevil." Morissette v. United States, 342 U.S. 246, 250 (1952). To be faithful to this belief, which is "universal and persistent in mature systemsof law," ibid., the criminal law must ensurethat the punishment an individual receives conformsto the choices that individual has made.[footnote omitted] Differential punishmentofreckless and intentional actions is therefore essential if we are to retain "the relation between criminal liability and moral culpability" on which criminaljustice depends. People v. Washington, 62 Cal. 2d 777, 783, 402 P. 2d 130, 134 (1965) (opinion of Traynor, C. J.). The State's ultimate sanction -- if it is ever to be used -- must be reserved for those whose culpability is greatest. Cf. Enmund, 458 U.S., at 798." (Tison v. Arizona, supra 481 U.S. at pp.170-171.) [dis. opn. of Brennan,J.J.) Asfor satisfying the social purpose of deterrence,it is axiomatic that the death penalty cannot deter an unintentional homicide. (See Appellant’s openingbrief at pp. 361-362.) For these reasons, the more recent cases of Roper, Simmons andparticularly Kennedy have effectively superseded the Tison factors of “reckless indifference” and “major participation” for a non killer accomplice. Therefore, because appellant did not kill, did not have an intent to kill and was sentencedto death based solely on the Tison factors, his punishmentviolated the Eighth Amendmentproportionality principles and mustbereversed. 141 XIV. THE TRIAL COURT VIOLATED APPELLANT’S SIXTH AMENDMENTRIGHT TO COUNSEL BY REFUSING TO CORRECT AN OBVIOUS CONFLICT SITUATION SUMMARYOFAPPELLANT’SARGUMENT Reversal is automatic whena trial court requires conflicted representation over a timely objection. During the prosecution’s penalty phase presentation, the Public Defender himself declared a conflict with a primary prosecution witness previously represented by the public defender’s office. The Public Defenderrevealed that there was confidential information in the office files on that witness; information that would be advantageousto appellant on cross examination. Upon discovering that defense counsel wasnot personally aware of the information, the judge orderedtrial defense counsel not to seek the advantageous information from any office source and ordered the office not to reveal it to defense counsel. Thetrial judge then refused to allow defense counsel to withdraw. The trial court’s refusal to allow the public defender to withdraw violated appellant’s Sixth Amendmentright to conflict free counsel, his Eighth and Fourteenth Amendmentrightto a reliable penalty determination, and his Fifth and Fourteenth Amendmentright to due process. The orderplacedtrial defense counsel in the untenable position of favoring one client over another. That is, either defense counsel harmedthe prior client by discovering the confidential information and using it for the benefit of appellant; or conversely counsel failed to aggressively seek the confidential information thus benefitting the prior client to the detriment of appellant. Either way, appellant’s 142 representation at the penalty phase was fatally compromised andreversalis automatic. SUMMARYOFRESPONDENT’SARGUMENT Respondent urges that because appellant’s counsel did not personally represent the prosecution witness on a prior occasion, and because appellant’s counsel did not actually have any confidential information on the prosecution witness, and because appellant’s counsel was permitted to seek impeachment information from other sources outside the Riverside County Public Defender’s Office, there was no actual conflict of interest. (Respondent’s brief at pp. 231-249.) ERRORS INRESPONDENT’SARGUMENTS The primary flaw in respondent’s argumentis the assertion that because the defense counsel wasnot personally aware of any confidential information concerning prosecution witness Deloney and did not have access to Deloney’s confidential information in the Public Defender’sfiles, there was no actual conflict of interest. To the contrary, a conflict of interest exists "where an attorney, or a memberofthe attorney's firm oroffice, represents a criminal defendantafter having previously represented a prosecution witness." (People v. Pennington (1991) 228 Cal.App.3d 959, 965.) Formal Opinion No. 1981-59 of the State Bar asserts that if the public defender represents two defendants charged in separate unrelated criminal cases, and one defendant seeks to becomea witness against the other, the public defender should not continue to represent either of them. (See the opinion located at: http://calbar.ca.gov/calbar/html_unclassified/ca81-59.html.) Numerouscases have recognizedthat the violation ofanyofthese rules of professional conduct establishes an actual conflict of interest. (See, e.g., United States v. Iorizzo (2"* Cir, 1986) 786 143 F.2d 52, 57,citing United States v. McKeon (2d Cir. 1984) 738 F.2d 26, 34-35; United States v. Dolan (3" Cir. 1978) 570 F.2d 1177, 1184.) Evenif that were not so, when the Public Defender declares a conflict of interest, as Mr. Zagorsky repeatedly did in this case, the declaration of counsel by itself is sufficient to establish an actual conflict without disclosure of the underlying facts. (Holloway v. Arkansas (1978) 435 U.S. 475, 486;°° Uhl v. Municipal Court (1974) 37 Cal.App.3d 526, 535.) In Aceves v. Superior Court (1996) 51 Cal.App.4th 584, the court of appeal foundthat it was sufficient to establish a conflict when there was an affirmative representation either by personal 33 -In responseto the claim that allowing a public defender to unilaterally declare a conflictof interest, the trial court would be ceding authority to -unscrupulous defense counsel who simply wanted to manipulate the trial process, the Court in Holloway explained thatthe trial court had other waysto deal with unscrupulousattorneys.( Jd at p. 486 fn.10.) Moreover, the Court explained the rationale for allowing the unilateral declaration of defense counselto establish a conflict, noting: . "In so holding, the courts have acknowledged and given effect to several interrelated considerations. An ‘attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine whena conflict of interest exists and will probably develop in the course ofa trial.’ ... Second, defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem.... Finally, attorneys are officers of the court and'" when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath."' ... Wefind these considerations persuasive." Jd. at pp. 485-486, citations omitted.) 144 appearanceor by declaration that the chain of commandat the county public defender's office reviewed the facts, and concurred with trial defense counsel that there was a conflict. (/d. at p. 594, fn. 8.) In the view of the Court of Appeal, the county public defender did not declare conflicts lightly and thus there waslittle dangerofmultiple frivolous conflict declarations. (/d., at p. 594.) It should be noted that in this case, while Mr. Zagorsky declared conflicts with several prosecution witnesses, he did NOT make such a declaration regarding other prosecution witnessesthat the public defender previously represented. (See, e.g., sealed transcripts, 51 R.T. 5974-5975.) Thus it would be hard to argue plausibly that Mr. Zagorsky was simply makingfrivolous declarations of a conflict. That the trial court offered the alternative of allowing trial defense counsel to discover other evidence to impeach Deloney, aside from confidential information contained in the Pubic Defender’s files, is no solution to the conflict. Suppose for example, the information that Mr. Zagorsky discovered in the Deloney file was that Deloney admitted to his counsel that he - not appellant- was the instigator of these jailhouse incidents and that appellant assisted him only under extreme duress. Even if public defender Wright discovered this information from an independentsource,it wouldstill be confidential information and Mr. Wright would NOTbeentitled to use it to impeach Deloney. An attorney's duty of confidentiality is broader than just client communications and extendsto all confidential information, privileged or unprivileged, and whether learned directly from the client or from another source. (Perillo v. Johnson (Sth Cir. 2000) 205 F.3d 775, 779 (emphasis added).) Thus the solution imposedby thetrial judge wasnosolution at all. It merely conferred a patina of legitimacy on a process that actually prevented 145 trial defense counsel from using information helpful to the defendant. To counter appellant’s arguments, respondentrelies on Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1566 for the proposition that a possible conflict within a Public Defender’s office does not require automatic disqualification. (Jd., at p. 1569) Rhaburn, however,is easily distinguishable. In Rhaburn, the defense argued simply that because the Public Defender previously represented some prosecution witnesses, disqualification was automatic. The Court of Appeal concluded, however that disqualification was not automatic and the case had to be returnedto thetrial court to determine whether there was an actual conflict. Significantly, however, in Rhaburn the Public Defender did not declare a conflict, thus the case had to be returned to thetrial court to determineif there was a conflict. Indeed, the court in Rkaburn specifically noted that in formulating a more flexible rule than automatic disqualification, it was relying on cases where counsel averred that there was no actual or potential conflict of interest. (/d., at p. 1578.) Here, by contrast, the Pubic Defender DID declare a conflict, thus an actual conflict of interest existed in this case. (Holloway v. Arkansas , supra, 435 U.S.at p. 486; Uhl v. Municipal Court, supra, 37 Cal.App.3d at p. 535; Aceves v. Superior Court, supra, 51 Cal.App.4th at p. 594,fn. 8..) In that regard, to the extent that the trial court relied on Mr. Wright’s assertion that he did not previously represent any of the state’s witnesses and that he was not aware of any materials contained in the public defender’s files as justification for finding no conflict, the finding is unsupported by the record. Mr. Wright clearly did not know what wasin the files and thus could not know whether there was a conflict. By contrast, Mr. Zagosky read the files and actually knew there was a 146 conflict. In dicta, Rhaburn wentfurther, however, and acknowledged that in developing a more flexible approach to conflict situations in criminal cases, it was departing from the rigid rule of automatic disqualification that applied in civil cases. (/d., at pp. 1578-1579.) Asjustification for such a departure, the court noted that the financial incentive to favor one client over another certainly did not apply in criminal cases handled by the public defender’s office. Moreover because the public defender’s office usually handled a high volumeofcases, the financial consequences of automatic disqualification fell heavily on the taxpayers. (d., at pp. 1579-1580.) While these financial considerations are certainly seductive, they are nonetheless, improper. (People v. Barboza (1981) 29 Cal.3d. 375, 380-381 [expense is an improper consideration in determining where counsel’s fiduciary responsibilities lie]; see also Williams v. Superior Court (1984) 36 Cal.3d 441, 451-452.) "[T]he pursuit ofjudicial economyandefficiency may neverbe used to deny a defendanthis rightto a fair trial."].) More important, nowhere in the Rhaburn opinionis there even a mention of the Sixth Amendmentright to conflict free counsel discussed in Mickens v. Taylor (2002) 535 U.S. 162. In Mickens, the United States Supreme Courtflatly rejected any distinction between private law firms and state appointed counsel when evaluating conflict situations in a Sixth Amendment context. Thus,if a conflict exists, it does not somehow becomeless important or less of a conflict because the entity representing a criminal defendant is the public defender rather than a 147 privately retained law firm. (Mickens v. Taylor, supra, 535 U.S.at p. 169, fn2.)** Nothing in the Sixth Amendmentallows the state to impose counsel on a defendant based uponfinancial considerationsto the public at large when counsel has an actual conflict of interest. In an analogouscontext, the fact that the taxpayers would have to bear the enormousfinancial burden of funding the entire defense of indigent persons charged with crimes was no impedimentto requiring compliance with the Sixth Amendmentright to counsel. (Gideon v. Wainwright(1963) 372 U.S. 335.) Moreover,included within the Sixth Amendmentright to counselis the right to conflict free counsel. (Wheat v. United States (1988) 486 U.S. 153, 160. see also Woodv. Georgia (1981) 450 U.S. 261, 271 [Conflicted counsel are also a due process Fourteenth Amendmentviolation.] ). Thus, public financial considerations are not a suitable basis for avoiding the mandate of the Sixth Amendmentright to conflictfree counsel. Finally, left completely unaddressed by respondent’s argumentis the solution to this dilemma proposed by Mr. Zagorsky. In accordance with the procedure outlined in People v. Alcocer (1988) 206 Cal.App.3d. 951, 961-962, Mr. Zagorsky proposedthat the court simply appoint an independentcounsel to advise Mr. 34 Footnote 2 in Mickensstates: “Tn order to circumvent Sullivan's [Cuyler v. Sullivan] clear language, Justice STEVENSsuggests that a trial court must scrutinize representation by appointed counsel more closely than representation by retained counsel. Post, at 1250 (dissenting opinion). But we have already rejected the notion that the Sixth Amendment draws such a distinction. ” [emphasis added] 148 Deloney on whether he would be willing to waive any conflict. (Sealed transcripts 51 R.T.5989.) In that regard, the prosecutor even advised the court that Mr. Deloney intimated that probably he would be willing to waive any conflict. (51 R.T. 5962.) Hadthetrial judge read Alcocera little more closely and erred onthe side of caution, he could haveeasily avoided the conflict situation presented here. Moreover,if cost was a legitimate concern in the Sixth Amendmentcontext, appointing independent counsel would notbe nearly as costly or time consumingas retrying the penalty phaseatthis late date.*° For these reasons, and thoseset forth in appellant’s openingbrief, the trial court’s refusal to properly resolve the clear conflict situation in this case compels reversal of the penalty phasetrial. 35 Since there were numerousother penalty phase witnesses who had not yettestified at the time this conflict problem arose, those witnesses could have beentestifying while the disputed witnesses were being advised by independent counsel. Thus, there is a good chancethat there would have been no material delay and the jury might not have been inconveniencedatall. 149 XV. THE TRIAL COURT ERREDIN FAILING TO CORRECT THE JURY’S MISUNDERSTANDING CONCERNING THE MEANING OF A SENTENCE OF LIFE WITHOUT PAROLEAND IN FAILING TO AMELIORATE ITS FEAR THAT THE SENTENCE IT IMPOSED WOULD NOT BE CARRIED OUT SUMMARYOFAPPELLANT’SARGUMENT The prosecution presented extensive evidence of, and argumenton, appellant’s future dangerousness. During deliberations, however, the jury sent the court a note requesting an explanation of the meaningofa sentenceoflife without parole and whether a death sentence would actually be carried out. That is, would the sentencing decision havethe practical effect of allowing the defendantto gain his freedom at some point? Instead of answering the jury’s question, the trial court simply referred the jury to the prior sentencing instructions which the note plainly showedthe jury did not understand. Thetrial court’s failure to ensure that the jury understoodits sentencing responsibilities deprived appellant of his Sixth Amendmentrightto fair jury trial, his Eighth and Fourteenth Amendmentright to a reliable penalty determination, and his Fifth and Fourteenth Amendmentright to due process. SUMMARYOFRESPONDENT’SARGUMENT Relying onthis courts prior decisions, particularly People v. Abilez (2007) 41 Cal.4th 472, respondent argues that CALJIC 8.84 and 8.88 adequately instruct the jury on the meaningoflife without parole as an alternative to the death penalty. 150 Further, relying on People v. Silva (1989) 45 Cal.3d 604, even though the jury specifically asked whether a sentence oflife without parole might eventually allow the defendant to go free, respondent contendsthat referring the jury to the standard instructions provided the jury with an adequate responseto its concerns. (Respondent’s brief at pp. 249-256.) ERRORS INRESPONDENT’SARGUMENTS The holding in Abilez and similar casesis that the standard instruction, CALJIC 8.84 is sufficient to convey the appropriate sentencing responsibilities to the jury. That is, a sentence of life without parole meansthat the defendant will spend the rest of his life in prison and that a sentence of death means the defendant will be executed. Nevertheless, this court has never rejected the equally appropriate formulation set forth in People v. Fierro (1991)1 Cal.4th 173, 250, that the jury “must assume”that the sentence it adjudicates will be carried out. The defense proposedinstruction here containedvirtually identical language to that approved by this court in Fierro.*° (4 C.T. 1074.) The more fundamental problem is, as appellant explained in his openingbrief, that although CALJIC 8.84 says that a defendantwill be confined for “life without 36 The defense proposedinstruction read: “You must assumethat if you sentence the defendant to death, he will be executed in the gas chamberorbylethal injection. If you choosethe sentenceoflife in prison without the possibility of parole, you must assumethathe will not be paroled.” (19 C.T. 5282.) 151 parole”, the language of the South Carolina instruction [imprisonment until death] that the United States Supreme Court found defective in Simmons v. South Carolina (1994) 512 U.S. 154, 169, permits exactly the same conclusion. Neither the South Carolina nor the California instruction fully addresses the problem that this jury believed that through some formula, even a capital defendant might becomeeligible for parole. Thus, the jury here expressed great skepticism that any “life” sentence absolutely precludedparole. It is for that reason that Simmons and later Shafer v. South Carolina (2001) 532 U.S. 36 [ 121 S. Ct. 1263, 149 L. Ed. 2d 178] require that a jury be instructed that a sentence oflife without parole means thatthere is, in fact, no possibility of parole. CALJIC 8.84 does not resolve that fundamental problem. There is nothing inaccurate abouttelling the jury what it should presumein choosing betweenits sentencing options. The jury is not supposed to speculate about possible escapes or commutations. A rational and reliable determination of the appropriate sentenceis best achievedifthe jury refrains from such speculation and presumesthat the sentenceswill actually be carried out. That is the choice the proposedinstruction would have given the jury in this case. More importantly, that is why the defense proposedinstruction is far superior to the standard CALJIC 8.84 instruction. Additionally, CALJIC 8.84as it was given here suffered from the same flaws in its description of the imposition of a sentence of executionas it did with the sentence oflife without parole discussed above. As appellant pointed outin his openingbrief, since at the time of appellant’s penalty trial there had been very few executions, the jurors, or at least some of them, clearly had doubts that a death 152 sentence would be carried out. The proposed instruction remediedthat flaw by telling jurors that they were to presume that a sentence of execution would becarried out. Thus, the proposedinstruction corrected the federal due process problem that Simmons and Schafer addressed with respect to jurors perceptionsofthe efficacy of their sentencing decisions and conformedto this court’s direction in Fierro concerning the appropriate language necessary to counter these perceptions. Theerror in refusing the proffered instruction resulted in a fundamentally unfair and unreliable death sentence. For this reason, appellant’s death sentence should be reversed. 153 XVI. APPELLANT WASDEPRIVEDOF A FAIR TRIAL AND A RELIABLE PENALTY DETERMINATIONIN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSBY INTRODUCTION OF IRRELEVANT AND HIGHLY PREJUDICIAL "VICTIM IMPACT EVIDENCE" SUMMARYOFAPPELLANT’SARGUMENT The victim impact evidence in this case consumed almostonefifth of the prosecution’s entire penalty phase case in chief. The sheer volume of emotional evidence overwhelmedanyrealistic notion of an impartial assessmentofthe propriety of a death verdict. Moreover, the quality of the evidence and the type of argument crossed the line between an appropriate request for a death verdict based on the impactofthe killing and the improper request for a death verdict based significantly on an invidious comparison between the societal worth of the deceased and the societal worth of the defendant. That is, Ms. Los was not only someone special to her family but an extraordinary person whocontributedto society. By contrast, the prosecution asserted that appellant hadlittle social worth. He renounced hard work and study. Instead he preyed on others and chose violence and manipulation as a way ofsatisfying his desires. Underlying this overt presentation was yet another message, a not-so-subtle appeal to race. The prosecution’s penalty phase theme wasbasic: an extraordinary valuable Caucasianlife was snuffed out by a black defendantoflittle social value. Indeed, that theme permeatedthe entire penalty phase presentation. For these reasons the death verdict mustbesetaside. 154 SUMMARYOFRESPONDENT’SARGUMENT Respondentfirst urges that appellant’s claim is waivedbythe failure to properly object. Second, the evidence presented here wasentirely appropriate and well within this court’s guidelines for victim impact evidence. The testimony and the videotapes did not invite an irrational emotional response from the jury but rather explained the effects of Ms. Los’ death on her loved ones and the community. Thus, the evidence was proper under California Penal Code section 190.2, subdivsion a, circumstancesof the crime. (Respondent’s brief a t pp. 256-265.) ERRORS INRESPONDENT’SARGUMENTS The fatal flaw in respondent’s argumentis the failure to acknowledge that the victim impact evidence in this case went wildly beyond anything contemplated by the United States Supreme Court in Payne v. Tennessee (1991) 501 U.S. 808, 827, [111 S.Ct. 2597, 115 L.Ed.2d 720]. In Paynethe high court held "that if the State chooses to permit the admission of victim impact evidence and prosecutorial argumenton that subject, the Eighth Amendmenterects no per se bar." ((Emphasis Added]. Ibid.) Nevertheless, to be consistent with the facts and holding of Payne, the admission of victim impact evidence,if such evidence is admittedat all, must be attended by appropriate safeguards to minimizeits prejudicial effect and confineits influence to the provision of informationthat is legitimately relevant to the capital sentencing decision. The Payne court specifically warned there are limits to victim impact evidence, and observedthat it would violate the federal constitutional guarantee to due processof law to introduce victim impact evidence "thatis so unduly prejudicial that it rendersthetrial fundamentally unfair. . . ." (Payne, supra, 155 501 USS.at p. 825.) As madeclear by Justice O'Connorin a concurring opinion joined by Justices Kennedy and White, the absence of any dueprocessviolation in Payne was established by the distinctly limited quantity of otherwise irrelevant victim impact evidence presented in that case: Wedo not hold today that victim impact evidence must be admitted, or even that it should be admitted. We hold merelythat if a State decides to permit consideration ofthis evidence, "the Eighth Amendmenterects noper sebar." Ante, at 827. In a particular case, a witness' testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment. (Payne v. Tennessee, supra, 501 USS. at pp. 831-832.) Justice Souter's concurrence, joined by Justice Kennedy, added the following warning to that written by Justice O'Connor: Evidence about the victim and survivors, and any jury argumentpredicated on it, can of course be so inflammatory as to risk a verdict impermissibly based on passion, not deliberation. [Citations.] With the commandof due process before us, this Court and the other courts of the state and federal systems will perform the "duty to search for constitutional error with painstaking care," an obligation "never more exacting than it is in a capital case." [Citation.] (Payne v. Tennessee, supra, 501 U.S.at pp. 836-837.) As Justice Moreno pointed out in his concurring opinion in Peoplev. 156 Robinson (2005) 37 Cal.4th 592, the Payne decision left intact the Constitutional restrictions announced in Booth v. Maryland (1987) 482 U.S. 49 [96 L.Ed.2d 440, 107 S.Ct. 2529], that “the admission of a victim's family members' characterizations and opinions aboutthe crime, the defendant, and the appropriate sentence violates the Eighth Amendment.” (/d., at p. 656.) There is a definite line between proper victim impact testimony and improper characterization and opinion bythe victim's family. (bid.) Overwhelming Emotional Impact In People v. Edwards (1991) 54 Cal.3d 787, 835-836, this Court suggested a’ limitation on victim impact evidence, emphasizing that "we do not hold that factor (a) necessarily includesall forms of victim impact evidence and argumentallowed by Payne, supra, ...."" This Court further warnedthat: Our holding also does not mean there are no limits on emotional evidence and argument. In People v. Haskett, supra, 30 Cal.3d [841] at page 864, we cautioned, ‘Nevertheless, the jury mustface its obligation soberly and rationally, and should not be given the impression that emotion may reign over reason. [Citation.] In each case, therefore, the trial court muststrike a careful balance between the probative and the prejudicial. [Citations.] (/d. at p. 836, n.11.) Asappellant explained in his openingbrief, a significant portion of the prosecution’s penalty phase evidentiary presentation was devoted solely to victim impact evidence. Ten witnessestestified (mostly non family members) and the prosecution presented two videotapes, numerous photographs, andcertificates and awardsattesting to Ms. Los' accomplishments. The sheer volumeofthe evidence alone created an unacceptable risk that the jury's attention would be focused on 157 improper considerations. As The Supreme Court ofNew Jersey pointed out: The greater the numberof survivors whoare permitted to present victim impact evidence,the greater the potential for the victim impact evidence to unduly prejudice the jury against the defendant. Thus, absent special circumstances, we expectthat the victim impact testimony of one survivor will be adequate to provide the jury with a glimpse of each victim's uniqueness as a humanbeing andto help the jurors make an informed assessmentof the defendant's moral culpability and blameworthiness. (State v. Muhammad(N.J. 1996) 678 A.2d 164, 180.) Moreover, the evidence about the decedent’s character far exceeded the "quick glimpse"ofthe decedent’s life approved in Payne v. Tennessee, supra, 501 USS.at pp. 822-823. Here, Ms. Los’ virtues were exploredat length, and the evidence also included an exhaustive account of her completelife history, from birth to death and beyond, including detailed descriptions of her activities; her work as a candy striper whenshe wasa youth, her volunteer activities including the care of a disabled, bedridden child, her heart rendingcertificate citation from a “mother of the year” contest, her activities in setting up a presurgical clinic at a base hospital, a video montageofherlife and finally a video of the Air Force dedication of a building in her honor. The testimony abouttheseactivities was buttressed by awards complete with photos, documents andcertificates. (See, e.g., the 19 photographs contained in prosecution exhibits 71and 72,plus the videos contained in prosecution Exhibits 82 and 83.) The total presentation here resembled a memorial serviceor celebrity tribute more than a capital penalty trial.*’ 37 "(T]he punishment phaseof a criminal trial is not a memorial service for the victim. What maybe entirely appropriate eulogies to celebrate the life and accomplishments of a unique individual are not necessarily admissible in a 158 More important, a review of the evidence and argumentin this case reveals that here the evidence of the victim's character was most likely offered to provoke the type of emotional reaction found impermissible in Booth. It worked; not only was the decedent’s fiancee Mr. Petrosky overwhelmed and unableto finish his presentation (52 R.T. 6093), but as counsel for codefendant Dearaujo pointed out to the trial judge, during the presentation of the victim impact evidence there were times whenjurors as well as court staff were in tears. (Supplemental R.T. volume 9 at p. 7063.) Because ofits massive scale and overwhelming emotional impact,this evidence was "so unduly prejudicial that it renders the trial fundamentally unfair[.]" Thus, "the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. [Citation.]" (Payne v. Tennessee, supra, 501 U.S. at p. 825.) The death sentence must be reversed. Invidious Appeals to Race Respondenturges that comparisons between the decedent and the defendant are not invidious appeals to race. As appellant pointed out in his opening brief, however, a death sentenceis unconstitutional "if it discriminates against [the defendant] by reason ofhisrace,.., or if it is imposed under a procedure that gives roomfor the play ofsuch prejudices." (Furman v. Georgia (1972) 408 US. 238, 242 [33 L.Ed.2d 346, 92 criminaltrial." Salazar v. State (2002, Tex Crim App. ) 90 S.W.3d 330, 335-336.) The Texas Court of Criminal Appeals found a seventeen-minute video montage of 140 photos of the deceased, including the decedent as an infant and toddler, inadmissible. 159 S.Ct. 2726] [conc. opn. of Douglas, J.] (emphasis added).) Therefore, while it may be impossible to eliminate the pernicious effect of race from capital sentencing altogether (McCleskey v. Kemp (1987) 481 U.S. 279 at pp. 308-3 14), the courts should engage "in 'unceasingefforts’ to eradicate racial prejudice from our criminal justice system"(id. at p. 309) and disapprove any procedures whichcreate an unnecessary risk that racial prejudice will come into play. (Batson v. Kentucky (1986) 476 U.S. 79, 99 [90 L.Ed.2d 69, 106 S.Ct. 1712].) Thepresentation of extensive evidence concerning the outstanding character of the homicide victim creates the risk that arbitrary and irrelevant comparisons will influence the sentencing decision. (Booth v. Maryland, supra, 496 U.S.at p. 506 and fn. 8; State v. Carter (Utah 1995) 888 P.2d 629, 652; Alvaradov. State (Tex.Crim.App.1995) 912 S.W.2d 199, 222 [conc.opn. of Baird, J.].) It is wrongto allow "such a decision to turn on the perception that the victim wasa sterling memberof the community rather than someoneof questionable character." (Booth, supra, at p. 506.) Whether the comparison is phrased as a comparison between victimsor a comparison between the defendant and the victim,the effect is exactly the same, and the result is a death sentence that is not only arbitrary and unfair (Booth, supra,atp. 506), but also a violation of the equal protection of the laws. (Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564 [145 L.Ed.2d 1060, 120 S.Ct. 1073].) (U.S. Const., Amends. 8 and 14; Cal. Const., art. I, §§ 15 and 17.) The most obvious discrimination is unique to the capital punishmentcontext; the danger that defendants whose victims are perceived as assets to society will be morelikely to receive the death penalty than equally culpable defendants whose 160 victims are perceived as less worthy. (Booth, supra, at p. 506.) However, a more familiar form of discriminationis lurking as well - discrimination based onrace. "[{I[]n manycases, expansive [victim impact evidence] will inevitably make way for racial discrimination to operate in the capital sentencing jury's life or death decision." (Blume, Ten Years ofPayne: Victim Impact Evidence in Capital Cases (2003) 88 Cornell L.Rev. 257, 280 [hereafter cited as Blume].) "Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected." (Turner v. Murray (1986) 476 U.S. 28, 35 [90 L.Ed.2d 27, 106 S.Ct. 1683].) That dangeris particularly acute in cross-racial crimeslike this one, where the victim and her surviving relatives are white and the defendantis black. Neither the race of the victim northe race of the defendantis a constitutionally permissible factor in capital sentencing. (McCleskey v. Kemp, supra, 481 U.S. 279 [95 L.Ed.2d 262, 107 S.Ct. 1756] [race of victim]; Zant v. Stephens, supra, 462 U.S. at p. 885 [race of defendant].) Evidence whichglorifies the homicide victim and emphasizesher virtues exacerbates this disparity. In Moore v. Kemp (11" Cir. 1987) 809 F.2d 702,the victim character evidence was muchless extensive than it was in this case, and the prosecutor's comparison argument was muchless explicit. Neither mentioned race expressly. (/d. at pp. 747-748 and fn. 12.) Even so, Judge Johnson readily concludedthat "it could not but help inflame the prejudices and emotionsofthe jury to be confronted with a father's testimonyofthe virtuouslife of his white daughter violated and then mercilessly snuffed out by this black defendant." (/d. at p. 749, emphasis in original [conc. and dis. opn. of Johnson,J.].) 161 Overt prejudice is not the only danger. There are many subtle ways in which conscious or unconscious racism can color the jurors’ perception of the defendant, their evaluation of his defenses, and their assessment of the seriousness ofhis crime. (Turner v. Murray, supra, 476 U.S.at p. 35.) Evidence whichfocuses the jury's attention on the character of the victim gives these improper influencesfree rein, causing majority jurors to view the crime as especially serious because they empathize and identify with the white victim. (See Berger, Payne and Suffering - A Personal Reflection and a Victim- Centered Critique (1992) 20 Fla. St. U. L.Rev. 21, 25, 48.) Here, the prosecutor’s request to compare the valueoflives was explicit. She told the jury to “[l]ookat all the lives he has touched and comparethat with all the lives that Ms. Los touched in such a positive manner.” (55 R.T. 6575.) The prosecutorthen raised the image of Ms. Loscaring for a disabled bedridden child, and contrasted it to the image of appellant andhis friends shoving “guns in women's and men's faces and tak[ing] their cars.” (55 R.T. 6575.) If that was not enough,only a few transcript pages later, the prosecutorraised the race issue directly. Although phrased in politically correct terms, the racial overtones were obvious. First, the prosecutor said that this incident wasnot related to racial stereotypes such as violence erupting from a notorious black ganglike the Crips. [“This group of kids was a multi-racial group of kids. This wasn't some minority thing or some gang like Crips...” (55 R.T. 6580.)] Then she told the jury that despite all the advantages that appellant had during his upbringing, nevertheless, he resorted to “the violent way out, the sociopath way out.” (55 R.T. 6580.) Since there was no evidence whatsoeverabout sociopathic tendencies, the clear implication 162 was that appellant reverted to stereotypical black gang behavior and got what he wanted by using violence. If the prosecutor was simply tryingto tell jurors that appellant had an unfettered choice to do good or evil and he choseevil, why paint images of black gangs and sociopathic violence, unless it was to implant the frightening idea of the Crips in their minds? This rhetoric was nothing more than an inflammatory emotional appealto the jury’s fear of racial violence. As appellant also explained in his opening brief, however, there is more to the issue: here, the trial court excused the only two black jurors for their purported misconductbased ontheir belief that blacks were treated differently. The questioning ofjurors and particularly the jury foreman revealed almost complete insensitivity to racial differences. The frustration between juror #10 and the other jurors reached a boiling point and there was a heated exchangein the jury room where race became an issue. (45 RT 5373.) As explained in Issue I, however, it was a little more than a mere heated exchange. As juror #10 herself explainedto the trial judge, she wasattacked verbally, screamed at and cut off during deliberations. (45 R.T. 5434-5435.) Further, Juror #2 explained that juror #10 realized she was the only African American in the room andfelt “picked on becauseofher race.” Indeed, when juror #10 tried to explain the black culture that may have influenced how the events unfolded in this case, the rest of the jurors specifically told her not to bring race into it. (45 R.T. 5386, 5389.) Thus,there is little doubt that the jury was particularly sensitive to racially divisive issues and probably to racial stereotypes. The contrast between the problem ofrace asit existed in the guilt phase and the issue as it appearshere is particularly revealing. While it is certainly true that 163 jury considerationsin guilt phase are different than those in penalty phase, the different way race wastreated in those two phases amountsto a significant Fourteenth Amendment Due Processviolation. In the guilt phase’ the jury refused to consider race in the context ofjuror #10's attempt to explain what it was like to grow up as a black person in MorenoValley at the time when the defendantlived there. In doing so, she was obviously trying to convey the cultural context of life as a young black person in the area - a perfectly valid consideration. (See, People v. Wilson, supra, 44 Cal.4th at p. 831[“(Jurors] can draw on their personal and family experiences within their own minority communities.”] More important, as appellant explained in issue IJ, had the jury heard this commentary, it may well have entertained a reasonable doubt concerning whether the meeting at Natalie Dannov’s house wastruly an organizational meeting that would support a conspiracy theory or an aider and abetter theory [as the prosecution contended] , or whether it was merely a group of young people getting together to brag and boast, a session fueled primarily by alcohol [as the defense contended]. Thetrial court’s failure to make any inquiry into this clear instance ofjury misconduct deprived appellantofa fair trial. Atpenalty phase, however, the decedent’s race was prominently featured in the victim impact evidence and the prosecutor repeatedly contrasted the decedent’s race to that of the defendant. While the terms the prosecutor used were ostensibly race neutral, the allusions to Crip gang violence[a black gang] andstereotypical sociopathic violence [a comment for which there was absolutely no evidentiary support] a jury already sensitized to racial divisivenessin the guilt phase could not possibly have missed the racial connection. Moreover, by emphasizing the decedent’s race, and allowing the jury to consider large amounts of victim impact 164 evidence these improper influences caused majority jurors to view the crime as especially serious because they could empathize and identify with the white victim. In short, by allowing the jury to exclude racial and cultural considerations in the guilt phase,the trial court improperly lowered the prosecution’s burden ofproofonits vicariousliability theories. By contrast, allowing invidiousracial considerations in the penalty phase,the trial court improperly increased the likelihood of a death verdict. It is of no consequence to argue that guilt phase considerations and penalty phase determinationsare different, thus the matters the jury can considerare different. Not only were the matters excludedat guilt phase and admitted at penalty phase improper, but even if that was not the case, state evidentiary rules must give way to federal Constitutional mandates. (Cf. Davis v. Alaska (1974) 415 US. 308, 320 [39 L.Ed.2d 347, 356, 94 S.CT. 1105][state procedural restriction on cross examination not permitted to defeat Sixth Amendmentright to confront); Chipmanv. Mercer (9th Cir. 1980) 628 F.2d 528, 530-532 [California Evidence Code section 352 restriction on impeachmentevidence cannotdefeat the Sixth Amendmentright to cross examine]; People v. Reeder (1978) 82 Cal.App.3d 543. [Judge's statutory discretion under Penal Codesection 352 may notoverride the defendant's substantive due processrights].) For these reasons, excludingracial and cultural considerations whereit hurt the defense and allowing them whereit helped the prosecution unfairly deprived appellant of due process anda fairtrial. No Waiver Respondentarguesthat the issue was waived because the objection was not proper. (Respondent’s brief at p. 260-261.) Respondentis in error. 165 Asappellant explained in his opening brief, at an Evidence Codesection 402 hearing conducted at the beginning of the penalty phase, defense counsel specifically objected to the testimony of Christopher Reusch, Captain Margaret Foltz, Paul Petrosky and the two videotapes. Defense counsel urgedthat the evidence on these tapes and from these witnesses was not proper victim impact evidence. (52 R.T. 6069-6070.) Thetrial court overruled the defense objections with the exception of the music on one ofthe videotapes, which the court did not allow. (52 R.T. 6076.) Asappellantalso explained in footnote 116 of his opening brief, counsel did notspecifically object to the testimony of Mr. Los’ parents, her children or her siblings. Nevertheless, since the judge allowed the most egregious formsofvictim impact evidenceinto evidence, any further objection to the testimonyofthese people clearly would have been a fruitless gesture. (See footnote 116 at pp. 439-440 of appellant’s openingbrief.) Futile objections are not required simply to preserve an issue for appeal. (People v. Kitchens (1956) 46 Cal.2d 260, 263; see also Douglas v. Alabama(1965) 380 U.S. 415, 422 [13 L.Ed.2d 934, 85 S.Ct. 1074]; People v. Anderson (2001) 25 Cal.4th 543, 587.) Moreover, even if that were not the case, the facts are not in dispute and the federal Constitutional legal principles are essentially the sameas thetrial court was asked to apply. The improperuse of victim impact testimonyin this case violated the Eighth and Fourteenth Amendmentrequirementsfor reliability in the guilt and sentencing phasesof a capital trial. (Cf. Beck v. Alabama (1980) 447 U.S. 625,at p. 643 [65 L.Ed.2d at p. 403, 406, 100 S.Ct. 2382].) Therefore, appellant’s Constitutional claims are preserved even if presented forthe first time on appeal. 166 (People v. Boyer, supra, 38 Cal.4th 412 at p. 441, fn. 17; see also People v. Carasi, supra, 44 Cal.4th 1263 at p. 1288, fn 15.) Finally, an appellate court is generally not prohibited from reaching questions that have not been preserved for review by a party. (People v. Williams, supra, 17 Cal.4th at pp. 161-162, fn. 6; see also Peoplev. Smith, supra, 31 Cal.4th at p. 1215; People v. Yeoman , supra 31 Cal.4th at p. 117.) For these reasons, the federal Constitutional error is not waived and this court - is not precluded from reviewing appellant’s claim as to the entire range of improper victim impact evidence presented in this case. CONCLUSION Individually and collectively, these improper appeals to the jury’s emotion deprived appellant of any semblanceofa reliable penalty phase determination. The errors complained of herein violated appellant’s Fifth, Sixth, Eighth and Fourteenth amendmentright and wereso highly prejudicial that reversal is compelled under any standard. 167 XVII. THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY ON THE APPROPRIATE USE OF VICTIM IMPACT EVIDENCE SUMMARYOFAPPELLANT’SARGUMENT Given the extensive amountand highly emotional nature of the victim impact evidence in this case, the court had a sua sponte duty to properly instructthe jury on its appropriate consideration. Here, althoughthetrial court instructed in accordance with CALJIC 8.84.1 nothing else was said to guide the jury in its consideration of this emotionally volatile evidence. CALJIC 8.84.1 is deficient because it does not caution the jury against an improperorirrational use of the victim impact evidence and does not warn the jury against invidious comparisons between the victim and the defendant. The error deprived appellant of his Sixth Amendmentrightto a fair jury trial, his Eighth and Fourteenth Amendmentrightto a reliable penalty determination, and his Fifth and Fourteenth Amendmentrights to due process. SUMMARYOFRESPONDENT’SARGUMENT Citing People v. Morgan (2007) 42 Cal.4th 593, 624; People v. Carey (2007) 41 Cal.4th 109, 134 and similar cases, respondent urgesthat there is no sua sponte duty to instruct on victim impact evidence beyond CALJIC 8.81.4. (Respondent’s brief at pp. 265-266.) ERRORS INRESPONDENT’SARGUMENT While this court has rejected arguments similar to those appellant made here, 168 nevertheless, this court has neverrejected the principles set forth in the instruction proposed by appellant. In his openingbrief, appellant explained in detail why the argumentis appropriate here. Other than a perfunctory assertion that CALJIC 8.84.1 addresses all of appellant’s contentions, respondent has chosen notto address the merits of appellant’s arguments. That being so, appellant relies on the arguments madeinits opening brief rather than simply repeating them here. 169 XVIII. THE TRIAL COURT ERREDIN REFUSING TO INSTRUCT ON LINGERING DOUBTIN VIOLATION OF STATE LAW AND THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS SUMMARYOFAPPELLANT’SARGUMENT The defense proposed a penalty phaseinstruction on lingering doubt. The trial court refused noting that although the instruction wascorrect on the law,lingering doubt wassolely a matter for argument. In view of the jury’s repeated notes expressing concern about the limits of appellant’s vicariousliability as wellasits concern for whether the death penalty was appropriate, the trial court’s resolution of this close question was of monumental importance in determining whether to execute appellant or spare his life. Therefore, the failure to give this instruction deprived appellant of his Sixth Amendmentrightto a fair jury trial, his Eighth and Fourteenth Amendmentrights to a reliable penalty determination, andhis Fifth and Fourteenth Amendmentrights to due process. SUMMARYOFRESPONDENT’SARGUMENT Respondentnotesthat similar arguments have been rejected many times. (Respondent’s brief at p. 268. ) Further, because the jury could have considered lingering doubt underfactor (k) there was no necessity for a separate instruction. (Respondent’sbrief at p. 268.)** Thus there was no error. (Respondent’s briefat pp. 38 Respondentalso asserts -withoutcitation to appellant’s briefing- that appellant conceded that there was no doubtat to his guilt. (Respondent’s briefat 170 268-269.) ERRORS INRESPONDENT’SARGUMENT Essentially, respondent’s argument is nothing more than a recitation of some of the reasoningset forth in this court’s prior decisions on this issue. In his opening brief, however, appellant explained at length why that reasoning doesnot apply to appellant’s case and whyappellant was prejudiced bythe failure to properly instruct on lingering doubt. Since respondenthas chosennot to address the substance of appellant’s arguments, appellant relies on the arguments madein its opening brief rather than simply repeatingthem here. p. 268-269.) Appellant categorically asserts that he never concededhisguilt to the charged crimes. The jury clearly found him guilty of the charged offenses, but just as clearly the jury notes show that the jury was uncomfortable with the reach of the prosecution’s theories of vicariousliability. Had the jury been properly instructed on those theories, it might well have acquitted him on someorall of the charges. (See, e.g. Issues V-IX.) 171 XIX. INSTRUCTING THE JURY PURSUANT TO CALJIC NO. 8.85 VIOLATED APPELLANT’S EIGHTH AND FOURTEENTH AMENDMENTRIGHTS TO A RELIABLE SENTENCING DETERMINATION SUMMARYOFAPPELLANT’SARGUMENT CALIJIC 8.85 was given in this case. The instruction is Constitutionally flawed becauseit fails to tell the jury which factors are mitigating and which are aggravating. This failure to designate allows jurors to make disparate judgments on similar factors and introduces an unacceptable level of arbitrariness in the capital sentencing process. SUMMARYOFRESPONDENT’SARGUMENT Respondentcites several cases where argumentssimilar to the ones appellant makes here have beenrejected by this court. On that basis, respondentassertsthat appellant’s claim has no merit. (Respondent’s brief at pp. 269-270.) ERRORS INRESPONDENT’SARGUMENT In his opening brief, appellant concededthat this court has ruled adversely on claims somewhatsimilar to the one appellant presents here. Nevertheless, also in his openingbrief, appellant explained at length why that reasoning does notapply to appellant’s case and why appellant was prejudiced by the standard CALJIC 8.85 instruction given in this case. Since respondenthas chosennotto address the substance of appellant’s arguments, appellantrelies on the arguments madein its opening brief rather than ‘ simply repeating them here. 172 INSTRUCTING THE JURY IN ACCORDANCE WITH CALJIC NO. 8.88 VIOLATED APPELLANT’’S FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTRIGHTS SUMMARYOFAPPELLANT’SARGUMENT CALJIC 8.88 is an improperinstruction becauseit fails to describe accurately the weighing process the jury must apply in capital cases. Moreover, bysofailing,it deprives a defendantof the individualized consideration that the Eighth Amendment requires. Further, the instruction is improperly weighted toward death and contradicts the requirements of Penal Code section 190.3 by allowing a death judgment if the aggravating circumstances are merely “substantial” instead of requiring the jury to make the proper determination that if the mitigating circumstances outweigh the aggravating circumstances, it must return a verdict of life without parole. Finally,the critical “so substantial;” languagein the instruction that describes the effect of the aggravating factors is unconstitutionally broad. That language would allow a death judgmentif the jury found death was authorized underthe statutes instead of whether it was appropriate underthe circumstances. All of these problemseffectively lower the prosecution’s burden ofproofbelow that is required by the Constitution. SUMMARYOFRESPONDENT’SARGUMENT Respondenturgesthat all of appellant’s arguments have at one time or another 173 been rejected by this court. On that basis, respondent asserts that appellant’s claim has no merit. (Respondent’sbrief at pp. 270-273.) ERRORS INRESPONDENT’SARGUMENT In his openingbrief, appellant concededthat this court has ruled adversely on claims somewhatsimilar to the one appellant presents here. Nevertheless, in his openingbrief, appellant explained at length why that reasoning doesnotapply to appellant’s case and why appellant was prejudiced by the standard CALJIC 8.88 instruction given in this case. Since respondenthas chosen notto address the substance of appellant’s arguments, appellant relies on the arguments madein its opening brief rather than simply repeating them here. 174 XXI. THE DEATH PENALTYIS DISPROPORTIONATE TO APPELLANT’S INDIVIDUAL CULPABILITY AND ITS IMPOSITION WOULD THEREFORE VIOLATE THE EIGHTH AMENDMENT AND ARTICLE I, SECTION 17 OF THE CALIFORNIA CONSTITUTION SUMMARYOFAPPELLANT’SARGUMENT In his opening brief, appellant argued that the death penalty is disproportionate to his personal culpability and that its imposition in this case would violate the state and federal constitutions. In particular, appellant urged that his culpability in this case is even less than that of the defendant in People v. Dillon (1983) 34 Cal.3d 441, yet defendant Dillon got a reduction from first degree murder conviction to second degree while the appellant here was sentencedto death. SUMMARYOFRESPONDENT’SARGUMENT Respondent urges that appellant was more culpable than Dillon. Here, appellant knew that Lyons and Dearaujo were going to do a carjacking when he provided them with the pistol. Further, on prior occasions, appellant told members of the Pimp Style Hustlers to “pop”or “cap” persons whoresisted. (Respondent’s brief at pp. 274-275.) ERRORS INRESPONDENT’S ARGUMENTS Asappellant pointed out in his openingbrief, Dillon waspart of a well plannedsix person invasion of a marijuana plantation they intended to rob. The defendantfired ninerifle shots into the decedent who was merely attempting to 175 protect his property. Nevertheless, this court reduced Dillon’s conviction to second degree murder, primarily because ofhis individual background. The court focused primarily upon the defendant’s youth, the fact that he lacked the intellectual and emotional maturity of an average 17-year-old, his lack of a prior record, and the petty chastisements given to the other six youths involved in the incident. (/d., at pp. 483- 488.) Here appellant was barely eighteen and had no prior record. (43 R.T. 6267- 6268.) More important, appellant was NOT the perpetratorof the homicide. Moreover, contrary to respondent’s assertion, not only did appellant not knowthat a homicide was goingto take place, he wasnot evencertain that a crime would take place. Several prior carjacking attempts by appellant’s associates had been complete failures and no homicide had ever taken place. The trial judge ruled that as a matter of law, the evidence was insufficient to show that appellant ordered the car jacking or commandedthe perpetrators to commit a crime. (38 RT 4658-4660.) Additionally, Lyons admitted that the car jacking idea originated with him and Mr. Dearaujo. (20 R.T. 2832.) Further, Dearaujo, the actual shooter, was a slow witted teenager who panicked when Ms.Lostried to leave the scene. (See Supplemental R.T. Vol. 9 at p. 6998.) The argument that the prosecutor madeto codefendant Dearaujo's jury during penalty phase summation wasthat the carjacking was conceived andcarried out by Dearaujo and Lyons, not appellant. As she told the jury: "They went to commit the carjacking of Yvonne because they wanted to go with Jack. It was his [Dearaujo's] idea. They wanted to do it, he and Chris." (9 Supp. R.T. at p. 7089 (emphasis added).) A few moments later, Ms. Nelson reiterated to the jury "He's [Dearaujo] doingthis all on his own.[{[] There's no one 176 there giving him step bystep instructions on how to commit a carjacking.." (9 Supp. R.T. at p. 7094.) This was an argumentclearly supported by the evidence. Finally, appellant was notthe actual shooter; the only theory of criminal culpability for appellant was as an aider and abetter or conspirator to felony murder. (8 R.T. 813.) Felony murderis a particularly harsh legal doctrine; to extend it even further to reach a peripheral participant and imposea sentence of death is to impose the harshest sentence on one whosepersonal culpability is minimal. Thus,like Dillon, these circumstances showthat appellant is hardly the “worst of the worst” for whom the death penalty is reserved. For these reasons and those set forth in appellant’s opening brief, the death penalty is disproportionate to appellant’s legal and moral culpability. This court should set the penalty aside. | 177 XXII. THE VIOLATIONS OF MR. WILLIAMS’ RIGHTS ARTICULATED ABOVE CONSTITUTE VIOLATIONS OF INTERNATIONAL LAW, AND REQUIRE THAT MR. WILLIAMS’ CONVICTIONS AND PENALTYBE SET ASIDE SUMMARYOFAPPELLANT’SARGUMENT Mr. Williams was deprivedofa fair trial and a reliable penalty determination in violation of customary international law as informed by the Universal Declaration of Human Rights, the International Covenanton Civil and Political Rights, and the American Declaration of the Rights and Duties of Man. Moreover, the death penalty, as applied in the United States and the State of California, violates customary international law as evidenced by the equal protection provisions of the above-mentioned instruments as well as the International Convention AgainstAll FormsofRacial Discrimination. International law sets forth minimum standards of humanrights that must be followed bystates that have signedtreaties, accepted covenants, or otherwise accepted the applicability of these standards to their own citizens. This Court has not onlythe right, but the obligation, to enforce these standards. The acts most violative of these standardsare the illegal arrest of Mr. Williams andthe process of picking the jurors who wouldsit in judgment on his life. More general charges include a contention that the United States and the State of California have effectively institutionalized racism in the process of choosing whowill be subject to 178 the death penalty, and how they will be processed. SUMMARYOFRESPONDENT’SARGUMENT In a one page argument, respondentnotesthat this court has consistently rejected challenges to the death penalty based on international law. Further, since the death penalty imposedin this case does notviolate either state or federal law, there is no violation of international law either. (Respondent’sbrief at p. 276.) ERRORS INRESPONDENT’SARGUMENT In his opening brief, appellant explained at length whyhistrial violated international law. Since respondent has chosen notto address the substance of appellant’s arguments on any aspectof international law, appellant relies on the arguments madein its opening brief rather than simply repeating them here. 179 XXIII. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND AS APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION SUMMARYOFAPPELLANT’SARGUMENT In his opening brief, appellant argued that 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 presented these arguments 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. Individually and collectively, these various constitutional defects require that appellant’s sentence be set aside. To avoid arbitrary and capricious application of the death penalty, the Eighth and Fourteenth Amendments require that a death penalty statute’s provisions genuinely narrow theclass of personseligible for the death penalty and reasonably justify the imposition of a more severe sentence compared to others found guilty of murder. The California death penalty statute as written fails to perform this narrowing, and this Court’s interpretations of the statute have expandedthestatute’s reach. Asapplied, the death penalty statute sweepsvirtually every murdererintoits grasp, and then allows any conceivable circumstance of a crime — even circumstances squarely opposedto each other(e.g., the fact that the victim was 180 youngversusthe fact that the victim wasold, the fact that the victim was killed at homeversusthe fact that the victim waskilled outside the home) — to justify the imposition of the death penalty. Judicial interpretations of California’s death penalty statutes have placed the entire burden of narrowingtheclassoffirst degree murderers to those most deserving of death on Penal Code § 190.2, the “special circumstances”section of the statute — but that section was specifically passed for the purpose of making every murderereligible for the death penalty. There are no safeguards in California during the penalty phase that would enhancethereliability of the trial’s outcome. Instead, factual prerequisites to the imposition ofthe death penalty are found by jurors whoare notinstructed on any burden of proof, and who maynot agree with each otherat all. Paradoxically,the fact that “death is different” has been stood on its head to mean that procedural protections taken for grantedintrials for lesser criminal offenses are suspended when the question is a finding that is foundational to the imposition of death. The result is truly a “wanton and freakish” system that randomly chooses amongthe thousands of murderers in California a few defendants for the ultimate sanction. The lack of safeguards neededto ensurereliable, fair determinations by the jury and reviewing courts means that randomnessin selecting whothe State will kill dominates the entire process of applying the penalty of death. SUMMARYOFRESPONDENT’S ARGUMENT Respondenturgesthat all of appellant’s arguments have previously been rejected by this court and appellant does not present any compelling reasons for a new review of those issues. Respondent then addresses appellant’s arguments by generally setting forth this court’s position on the thrust of appellant’s argument. 181 (Respondent’s brief at pp. 277-280.) ERRORS INRESPONDENT’SARGUMENT In his openingbrief, appellant acknowledgedthat this court has approved these statutes generally but explained in detail why the application of these statutes wasnot appropriate here and why this court should revisit those previous decisions. Since respondent has chosennotto address the merits of any of appellant’s arguments, appellantrelies on the arguments made in its opening brief rather than simply repeating them here. 182 XXIV. THE CUMULATIVE EFFECT OF THE ERRORSIN THIS CASE REQUIRE THAT APPELLANT’S CONVICTIONS AND DEATH SENTENCEBE REVERSED SUMMARYOFAPPELLANT’SARGUMENT Evenifthe errors in appellant’s case standing alone do not warrantreversal, the court should assess the combinedeffect of all the errors. Multiple errors, each of which might be harmlesshadit been the only error, can combineto create prejudice and compelreversal. (Taylorv. Kentucky (1978) 436 U.S. 478, 487, fn. 15; Phillips v. Woodford (9" Cir. 2001) 267 F.3d 966, 985.) Appellant has identified numerouserrors that occurred at each phase ofthe trial proceedings. Each ofthese errors individually, and all the more clearly when considered cumulatively, deprived appellant of due process,of a fair trial, of his right to be informed ofthe nature and cause of the accusation against him,of his right to trial by a fair and impartial jury and to a unanimousjury verdict, of his right not to be subjected to unreasonable searches and seizures or convicted uponthe basis of illegally seized evidence, and ofhis right to fair and reliable guilt and penalty determinations,in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. Further, eacherror, byitself is sufficiently prejudicial to warrant reversal of appellant’s convictions and death sentence; but evenif that were not the case, reversal would be required becauseofthe substantial prejudice flowing from the cumulative impactofthe errors. 183 SUMMARYOFRESPONDENT’SARGUMENT Respondenturgesthat there were noerrors in this case, thus there could be no cumulative error or prejudice flowing therefrom. ( Respondent's brief at p.281.) ERROR INRESPONDENT'SARGUMENT Respondent doesnotaddress the situation where this court might disagree and find one or moreerrorsin the guilt or penalty phases of appellant’s trial. Implicitly, therefore, respondent appears to concede that such errors may be cumulatively prejudicial. Regardless of any such concession, however, there is a more fundamental problem with respondent's argument. Heightenedreliability is required in capital litigation. Reliability, however, is not the primary focus of respondent's answer. Nowherein respondent's answer doesit explain how the challenged proceduresin this case contributed to the overall reliability of the penalty phase fact finding process. Instead, respondent's insistence on waiver and harmlesserror provide little assistanceto this court in its duty to ensure fundamentalfairness. Theerrors in this case are overwhelmingly prejudicial, both individually and cumulatively. More important, individually and cumulatively, these errors underminedthereliability of the death verdict. Our system ofjustice relies on process. If the trial processis just and fair, then the result will be reliable. (California v. Ramos (1983) 463 U.S. 992, 998-999.) If theprocess iS fundamentally flawed, however, it cannot be redeemedbyresort to waiver or harmlesserror analysis. As appellant explained in both his opening andreplybriefs, the death penalty process in Californiais fatally flawed in statute and it was flawed in its application to this case. Therefore, appellant's conviction and his death 184 judgment mustbesetaside. 185 XXV. THE$10,000 RESTITUTION FINE WAS INCORRECTLY IMPOSEDIN DISREGARD OF THE DEFENDANT?’S ABILITY TO PA Y SUMMARYOFAPPELLANT’SARGUMENT At the conclusion ofthe penalty phase, the trial court ordered the defendant, Jack Williams to pay a $10,000restitution fine pursuant to Penal Code section 1202.4 (19 C.T. 5374.) This fine was imposedin error because appellant is subject to a death sentence. Prisoners on death row are not permitted to work. Moreover, appellant is indigent and was assignedcourt appointed counsel, both at trial and on appeal. Therefore, appellant has no reasonably discernable means ofpaying a fine of this magnitude. Moreover, even thoughtrial defense counselfailed to object, the error was not waived becausethe fine exceeded the court’s jurisdiction. SUMMARYOFRESPONDENT’SARGUMENT Respondenturges that the issue was waived because the version of Penal Code section 1202.4 in effect at appellant’s sentencing required thetrial court to take into accountthe defendant’s ability to pay. Thus, the failure to object constitutes waiver. Further, the issue lacks merit. Since the statute required the judge to consider the defendant’s ability to pay, it should be conclusively presumedthatthe trial court actually considered the defendant’s ability to pay, despite the fact that the trial court neverstated the factual basis upon whichit could have found that the defendant had the ability to pay such a large fine. 186 ERRORS INRESPONDENT’SARGUMENT The very recent decision in People v. Avila (2009) 46 Cal.4th 680 adopts respondent’s argumentandrejects appellant’s argument. The thrust of the Avila decision is that under the version of Penal Code section 12022.4 in existence in 1998 when the defendant was sentenced, a fine in any amount greater than the minimum of $200 up to the maximum of $ 10,000, was subject to the court's discretion. (§ 1202.4, subds. (b)(1), (d).) Significantly, however, under the statute in 1998 and the current statute, a defendant bears the burden of demonstrating his inability to pay, and expressfindings by the court as to the factors bearing on the amountofthe fine are not required. (§ 1202.4, subd. (d); see People v. Romero (1996) 43 Cal.App.4th 440, 449 [the statute “impliedly presumes a defendanthasthe ability to pay,” and leavesit to the defendant to adduce evidence otherwise].) Therefore, because the defendant did not come forward at sentencing to explain why he could not pay the fine, the issue is waived for appeal. (Avila at p. 729.) Avila is wrongly decided and should be reconsidered. The key to the Avila decision is that the judge has discretion to imposea fine in any amount between $200 and $10,000. The primary flaw in Avila and in respondent’s argumentis the failure to articulate any rational basis upon whichthe trial court could have made even so muchas an implied finding that the defendant had the ability to pay a $10,000 restitution fine. Here, the defendant is indigent and on that basis he qualified for court appointed counsel. (Cf. Gideon v. Wainwright (1963) 372 U.S. 335 [9 L. Ed. 2d 799, 83 S. Ct. 792]; People v. Ortiz (1990) 51 Cal.3d 975, 988-989.) Further, he cannot work while in prison on death row and thus cannot earn money to pay any fineatall, let alone a fine of $10,000. (See Penal Code section 2933.2(a) 187 [death row inmateis not entitled to earn work credits].) Thus, there was no evidence anywhere in the record to support an implied finding - muchless an actual one - that appellant possessedthe ability to pay a $10,000 restitution fine. (Cf. People v. Saelee, (1995) 35 Cal.App.4th 27, 31.) Significantly, “[a] trial court abusesits discretion when the factual findingscritical to its decision find no support in the evidence.” (People v. Cluff(2001) 87 Cal.App.4th 991, 998.) It is no answerto assert that the statute implies that all defendants are presumed capable of paying fine. The circumstances already known to the court demonstrate that the defendant was not capable of nor would he ever be capable of paying a $10,000 fine. Both of these conditions were known, or should have been known,to the trial judge. Given these circumstances, there is no factual basis to support thetrial court’s exercise of discretion to impose a $10,000 restitution fine. Additionally, even if there was some requirement on the defense to affirmatively show that the defendantdid not have the ability to pay the fine, what other evidence could the defense present besides indigence andthe inability to earn money while on death row? Theseare factors already established onthe record (or as a matter of law) and certainly were well known to the trial court. Simply reciting them again for the record is redundant. Clearly, "[t]he law neither does nor requires idle acts.'"(People v. Kitchens, supra, 46 Cal.2d 260, 263; see also Douglas v. Alabama, supra, 380 U.S. 415, 422 [13 L.Ed.2d 934, 85 S.Ct. 1074]; Peoplev. Anderson, supra, 25 Cal.4th 543, 587.) Under these circumstances, the $10,000 fine was an unauthorized sentence, thus exempting appellant from havingto bringhis claim to the trial court's attention. (See People v. Scott (1994) 9 Cal.4th 331, 354.) Moreto the point, as appellant 188 noted in his supplemental brief, restitution fines in excess of the defendant’s ability to pay may well be an unconstitutional punishment under the Eighth Amendment. (See, e.g., United States v. Bajakajian (1998) 524 U.S. 321, 337-338 [141 L. Ed. 2d 314, 118 S. Ct. 2028].) For these reasons, and those set forth in the openingbrief, appellant’s fine must be reducedto the statutory minimum and any amounts abovethe statutory minimum that have already been taken from him mustberestored. 189 CONCLUSION | For the reasons set forth herein andin appellant’s openingbrief, the multiple guilt phase errors involving juror deliberations, the failure to properly respond to jurors’ inquiries aboutthe reach ofvicariousliability, the multiple instructional errors defining vicariousliability, the failure of the evidence to support the felony murder(robbery) special circumstance andthe improper shackling ofthe defendant all compelreversal of appellant’s convictions. The penalty phase errors, includingthe refusal to correct a conflict situation, the failure to ensure the jury understood the meaningof the sentencing alternatives, the voluminous, emotional and improper victim impact evidence, the erroneous penalty phase jury instructions and the constitutional infirmities ofthe death penalty statue itself combined to undermine confidencethat the sentence of death was appropriate. Therefore, the sentence, as well as the convictions mustbe set aside. Respectfully Submitted, fe R. Clayton Seaman,Jr Attorney at Law P.O. Box 12008 Prescott, AZ 86304 Tel. No. 928 776 9168 Bar No 126315 190 CERTIFICATE OF WORD COUNT I am the attorney for appellant Jack Emmit Williams. Based upon the word- count of the Word Perfect 8.0 program,I hereby certify the length of the foregoing brief, including footnotes but not includingtables, this certificate or the proof of service, is 50,708 words. (California Rules of Court, rule 8.630 (b)(1)(C).) I declare under penalty of perjury of the laws of the State of California that the foregoingis true. Date: November9, 2009 R. Clayton Seaman,Jr Attorney at Law P.O. Box 12008 Prescott, AZ 86304 CA State Bar # 126315 191 S073205 PROOF OF SERVICE BY MAIL AND DECLARATION OF PRINTING ON RECYCLED PAPER STATE OF ARIZONA, COUNTY OF YAVAPAI I, R. Clayton Seaman,declare as follows: I am overeighteen (18) years of age and not a party to the within action. My business address is P.O. Box 12008, Prescott, AZ 86304. On November9, 2009 I served the within Appellant Williams’ Reply Brief on eachofthe following, by placing a true copy thereof in a sealed envelope with postage fully prepaid, in the United States mail at Prescott, AZ addressed as follows: California Appellate Project Office of the Attorney General Attn: Dorothy Struetker 110 West A Street, Ste 1100 101 Second St., Ste 600 P.O. Box 85266 San Francisco, CA 94105 San Diego, CA 92186-5266 Riverside County District Attorney Jack Williams, Jr. P-11400 Attn Allison Nelson P.O. Box P-11400 4075 Main St, First Floor SQSP Riverside CA 92501 San Quentin. CA 94974 Riverside County Superior Court Forest Wright, Esq Criminal Department Jeglin Swanson & Wright LLP Hall of Justice 3750 E Florida Ave #A Attn. Hon. Bernard Schwartz Hemet, CA 92544 4100 Main Street Riverside, CA 92501-3626 Office of the Public Defender 4200 Orange Ave Riverside, CA 92501 I declare that the document wasprinted on recycled paper. Further, I declare under penalty ofperjury underthe lawsofthe state ofCalifornia that the foregoingis true and correct and that I signed this declaration on November9, 2009 at Prescott, AZ. dasacty Mb dbsarssae Nancy D. Seaman