PEOPLE v. LOPEZ (JUAN M.)Appellant’s Opening BriefCal.May 25, 2005v.NEME COURT COPY COPY (Los Angeles Superior Court No. PA023649) IN THE SUPREME COURTFOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, SUPREME COURT Plaintiff and Respondent, F t Lo Ee O Vv. . MAY 2.5 2003 ‘ . . JUAN MANUEL LOPEZ rederickK. Ohlrich Clerk STiere“<= [as of December20, 2004].) 69 prosecutor’s obj ections that the question wasirrelevant and called for | hearsay. (RT 2274.) This statement wasnot hearsay since it was not offered for the truth of the matter — that Melinda dressed in a certain matter. (See Evid. Code,§ 1200 [defining hearsay as statements that are introducedfor the truth of the matter].) Moreover, it was relevant to explore Carmody’s state of mind, her bias in this case as a result of her daughter’s relationship with appellant. (Evid. Code, §§ 780 [credibility of witness].) | Evidence Code section 780 allows a jury to consider any matter that relates to the bias of a witness or one’s attitude toward the underlying case. (Evid. Code, § 780, subds.(f), (j).) The credibility of a witnessis affected by emotionsthat are tied to a case. Thus, it has long been recognized that “it is elementary law, supported byall authority, that the state of mind of a witnessasto his bias or prejudice, his interests involved, his hostility or friendship toward the parties, are always proper matters for investigation.” (People v. Pickens (1923) 61 Cal.App. 405, 407-408; see also Newmanv. Los Angeles Transit Lines (1953) 120 Cal.App.2d 685, 690 [proper to show any feeling of antagonism or animosity of a witness toward a party].) Here, appellant’s question related to Carmody’sattitude towards Melinda’s relationship with appellant. If Carmody believed that her daughter dressed appropriately only when she was home,then it clearly demonstrated bias against the person whoallegedly helped turn Melinda into a “chola.” Accordingly, appellant should have been allowedto question Carmodyabouthowherattitude and emotionsaffected her perceptions and testimonyin this case. 28. Thetrial court denied appellant the opportunity to approach the benchto discuss the matter outside the jury’s hearing. (RT 2274.) 70 D. Reversal is Required Carmody’s testimony provided substantial support for the kidnaping charge and established someofthe circumstancesof the alleged homicide. The questions that appellant tried to ask were important because they showedthe extent of Melinda’s problems before she movedin with appellant and his family, the nature of her relationship with appellant, and Carmody’s ownbias against appellantin the case. Thetrial court’s rulings violated appellant’s statutory rights and implicated his federal due processliberty interest in the application of California’s evidentiary rules. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346.) They also violated appellant’s Sixth Amendmentright to confront the evidence against him (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678); his due process right to fundamental fairness (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643); and, his Eighth Amendmentrightto a reliable verdict in a capital case (Ford v. Wainwright (1986) 477 U.S. 399, 411) Theerrors, both individually and cumulatively, were not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see also Irving v. State (Miss. 1978) 361 So.2d 1360, 1363 [“what may be harmless error in a case with less at stake becomes reversible error when the penalty is death.”].) Even if this Court should find that the errors were harmlessin the guilt phase, they affected the penalty phase of the trial. The penalty phase of a capital trial is “in many respects a continuation ofthetrial on guilt or innocence of capital murder.” (Monge v. California (1998) 524 U.S. 721, 732.) Jurors were instructed to consider the evidence admitted in the guilt phase. (RT 2884, CALJIC 8.85.) Here, this case involved very sensitive and emotionalissues regarding appellant’s gang association and Melinda’s 71 participation in the gang. Melinda’s familytestified at the penalty phase about the impact that her death had upon them. The questions that appellant tried to ask would have provided more information about why Melinda cameto live with appellant and his family and why she moved back home. These matters would have placed the crime in a balanced context and provided important mitigating evidence. Accordingly, this Court must reverse the penalty judgment. (See People v. Ashmus (1991) 54 Cal.3d 932, 965 [substantial error requires penalty reversal under either federal orstate standards] ) i/ | // 72 Vill. THE TRIAL COURT IMPROPERLY PERMITTED AN INVESTIGATING OFFICER TO TESTIFY ABOUT THE VICTIM’S DEMEANOR WHENSHE TESTIFIED AT THE PRELIMINARY HEARING REGARDING THE KIDNAPING CHARGE The prosecutor introduced Melinda’s testimony from the preliminary hearing that was held in regard to the kidnaping charge. After the testimony -was read into the record, the trial court erroneously allowed the prosecutor to introduce additional testimony about Melinda’s emotional state during her testimony. Over appellant’s objection that the testimony wasirrelevant and speculative, the investigating officer described her as being “frightened, upset, and sometimescrying.” (RT 1051.) He said that the trial court had offered her sometissues during her testimony and asked if she would like to continue. (RT 1051-1052.) This testimony affected the kidnaping charge by enhancing Melinda’s credibility; it affected the murder charge by making it likely that the jury speculated that Melinda wasafraid of appellant. The testimony wasirrelevant and speculative, violating appellant’s federal and state constitutional rights to confront the evidence against him, due process, and a reliable verdict in a capital case. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 16, 17.) A. The Officer’s Opinion was Speculative and Irrelevant Thetrial court erred by admitting the investigating officer’s impression of Melinda’s demeanorbecauseit was too speculative to be relevant. (See People v. Lewis (2001) 26 Cal.4th 334, 373 [“speculative evidenceis not relevant”]; People v. Reeder (1978) 82 Cal.App.3d 543, 553 [evidence was“simply too speculative to be considered relevant”].) 73 To be relevant, the demeanor of a witness is something that the trier- of-fact must observe. A jury may take into account “the whole nexus of ~ sense impressions which they get from a witness.” (People v. Adams (1993) 19 Cal.App.4th 412, 438.) However, when a witness is unavailable and testimony is admitted from another proceeding, the witness’s demeanor cannot be observed bythe jury. (People v. Williams (1968) 265 Cal.App.2d 888, 896.) Thus, it has been recognized that “where former testimony of the unavailable witness is received,it is clear, of course, that no one at the subsequent trial had observed the witnesstestifying, and no argument could be made regarding demeanorofthe witness.” (People v. Manson (1976) 61 Cal.App.3d 102, 224 (conc. and dis. opn. of Wood, P.J.) The United States Supreme Court has also observed: If cross-examination at the preliminary hearing rarely approximatesthatat trial, observation by the trial factfinder of the witness’ demeanoras hegiveshis prior testimonyis virtually nonexistent. Unless the committing magistrate 1s also thetrial factfinder, the demeanor purposeof the Confrontation Clause is wholly negated by substituting confrontation at the preliminary hearing for.confrontation at trial. And yet, in the words of the California court, “(i)t is | because demeanor--attitude and manner--is a significant factor in weighing testimonial evidencethat it is axiomatic the trier offact, before whom the witness testified and was cross-examined* * *, is the solejudge ofthe credibility ofa witness and ofthe weight to be given his testimony .” [People v. Green (1969) 70 Cal.2d 654, 662.] No such determination of credibility is possible when the witness comes before the trial factfinder by the reading of a cold transcript. (California v. Green (1970) 399 U.S. 149, 198, emphasis added.) In other words, the demeanor of a witness must be determined contemporaneously, wherethe trier-of-fact can use it to gauge the credibility of the testimony itself. 74 Here, the prosecutor apparently sought to avoid this limitation by having the investigating officer testify about Melinda’s emotionalstate. However, it is one thing for the factfinder to personally observe a person whois testifying and to consider their demeanorin judging the weight that is to be given to their testimony;it is another when an investigating officer’s observations about a witness’s demeanoris presented as sworn testimony that has separate evidentiary value. Theinvestigating officer’s testimony cut an extremely broad swath. - Melindadid not testify that she was frightened or upset. The investigating officer did not identify any questions or answers that might have caused Melinda to be upset. Thus, there was nothing to link her mentalstate to any specific issue in this case. Without some evidence to connect Melinda’s emotionalstate to a disputed issue in the case, it was irrelevant to the jury’s determination. (See Evid. Code, § 1250 [state of mind evidence must be relevant to an issue in the case]; People v. Yeats (1984) 150 Cal.App.3d 983, 986 [before evidence of threats against a witness is admitted, “the prosecution mustfirst establish the relevance of the witness’ state of mind by demonstrating that the witness’ testimonyis inconsistent or otherwise suspect”]; People v. Ireland (1969) 70 Cal.2d 522, 529 [evidence of a victim’s mental state must be relevant to issue at trial].) | Moreover,the investigating officer had no knowledge aboutthe reasons underlying her state of mind. Even assumingthatthe officer’s observations werecorrect, the jury could not determine why she was frightened. Indeed, the investigating officer may have believed that Melinda wasfrightened, yet she may have only been nervous about testifying in a case involving very emotional matters and her relationship with a boyfriend that she had once loved. (See Supp. | CT 38 [trial court 75 offers victim Kleenix and asks if the victim can continue].) Many adults — let alone a 16 year-old girl — are frightened or nervous abouttestifying in any court matter. Appellant had no opportunity to establish Melinda’s actual state of mind. Under these circumstances, the testimony was speculative and unreliable. The investigating officer’s testimony was speculative and irrelevant. (Evid. Code, § 350 [only relevant evidence admissible].) Appellant had a due processliberty interest in applying California’s statutory scheme to excludethis testimony. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346). Because it allowed the jury to make improper inferences about Melinda’s state of mind,it also violated state and federal constitutional requirements of due process and affected thereliability of the verdict. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 16, 17.) Accordingly, this Court should find that the trial court erred in permitting the investigating officer to testify about his impressions of Melinda’s demeanor. B. The Testimony Allowed the Jury to Speculate that Appellant Frightened the Victim Thejury was told that Melinda wasfrightened,this in turn gave rise to speculation that she had reasonto beafraid to give testimony against appellant. The speculative nature of the officer’s testimony demonstrates whyits admission violated due process standards and affected the reliability of the first degree murderverdict under constitutional standards. This Court has placed firm limits on testimony that relates hearsay declarations about a victim’s fear. Where there is a statementthat a victim feared a defendant, the statement must be excluded unless the victim’s state of mindis in dispute andit is relevant to an issue in the case. Absent such dispute, a statement about a victim’s fear is irrelevant. (People v. Bunyard 76 (1988) 45 Cal.3d 1189, 1204; People v. Armendariz (1984) 37 Cal.3d 573, 584-587.) The risk with such testimony is that the jury will believe that the defendant was the reason for the victim’s fear so that the defendant must be guilty. As the court noted in United States v. Brown (D.C. Cir. 1973) 490 F.2d 758, 766, “The principal danger is that the jury will consider the victim’s statement of fear as somehow reflecting on defendant’s state of mindrather than the victim’s — i.e., as a true indication of defendant’s intentions, actions, or culpability.” Here, the testimony that Melinda appeared to be frightened invited similar speculation that her fear was linked to appellant. Although there was someevidence that appellant did not want Melindato testify and was upset over someof her testimony, there was no evidence that appellant had threatened her. Indeed, that Melinda continued to participate in appellant’s gang after the alleged kidnaping might have indicated that she did not fear appellant or believe that he posed a danger to her. This was important to appellant’s defense, yet it was underminedby the testimony about her demeanor. Althoughthe officer had no knowledge about why Melinda might have appearedto be scaredat the time ofthe preliminary hearing, the jury wasleft to believe that she feared appellant and that her fear was justified. The jury would speculate that Melinda was frightened because appellant looked at her in a menacing way, made some kind ofa threatening gesture, or otherwise indicated that she would be in dangerif she testified against him. Appellant could not defend himself against this kind of speculation, particularly because there was no evidencethat the victim’s fear was caused by him. (See People v. Mason (1991) 52 Cal.3d 909, 946 [evidence of an 77 anonymousthreat not connected with the defendant should be suspect as an endeavor to prejudice the defendant before the jury in a way which he cannot possibly rebut].) In a case where the evidence wasvery close, the jury would assume - that appellant was responsible for both Melinda’s fear and her death. Under these circumstances, the investigating officer’s testimony struck “directly at the heart of the defense.” (People v. Ireland, supra, 70 Cal.2d 522, 532.) The speculative nature of the testimony renderedit unduly prejudicial in - violation of due process standards. (See Payne v. Tennessee (1991) 501 U.S. 808, 825 [due process guards against prejudicial evidence],) It also left the murder verdict unreliable under the Eighth Amendmentby leaving the jury free to make improperinferences. (See Beck v. Alabama (1980) 447 U.S. 625, 638 [8th Amendmentrequirements for reliability in a capital case extends to matters that affect guilt determination].) Accordingly, the judgmentagainst appellant must be reversed. (Chapman v. California (1967) 386 U.S. 18, 24 [error not harmless beyond a reasonable doubt].) /] HI 78 IX. THE EVIDENCE WASINSUFFICIENT TO SUPPORT A VERDICT OF FIRST DEGREE MURDER There was insufficient evidence to support appellant’s conviction for | first degree murder. Appellant wasin jail at the time Melinda was shot by his brother and there was no direct evidence linking him to her death. The most incriminating evidence against appellant was testimonythat he allegedly asked Alma Cruz if she could kill a homegirl andstated that he had “someonedoing it” for him. (RT 1382.) There was no evidence about what appellant meant when heallegedly made these statements. Thus, appellant’s conviction was based onhis alleged motive to keep Melinda from testifying against him or to exact revenge upon her, and speculation about what he might havetold his brother to do. This does not meetfederal or state due process requirements or the standards under California’s “corpus delicti” rule requiring independent evidence of guilt apart from a defendant’s admissions. This Court mustnow reverse the murder verdict against appellant. A. There wasInsufficient Evidence to Support the Murder Verdict The due process clause of the Fourteenth Amendmentandarticle 1, section 15, of the California Constitution requires that a conviction be supported by substantial evidence. (People v. Holt (1997) 15 Cal.4th 618, 667.) Under due process standards, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 US. 307, 319; People v. Rowland (1992) 4 Cal.4th 238, 269.) The Jackson requirement“presupposesthat juries accurately charged on the elements of 79 a crime and on the strict burden of persuasion to which they musthold the prosecution, nevertheless may occasionally convict even whenit can be said that no rational trier of fact could find guilt beyond a reasonable doubt. It was adopted to provide an additional safeguard against that possibility, and to give added assurance that guilt should never be found except on a rationally supportable subjective state of near certitude.” (West v. Wright (4th Cir. 1991) 931 F.2d 262, 268, rev'd on other grounds, 505 U.S. 277, quotations omitted.) | Bydefinition, “substantial evidence” requires evidence and not mere speculation. (People v. Perez (1992) 2 Cal.4th 1117, 1133.) While all reasonable inferences must be drawnin support of the judgment, “[a] reasonable inference . .. may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.” (Ibid.) “A finding of first degree murder which is merely the product of conjecture and surmise maynot be affirmed.” (People v. Rowland (1982) 134 Cal.App.3d 1, 8-9.) Here, the prosecution had to show that appellant aided or abetted Melinda’s murder. (Pen. Code, § 31 [defining principals].) This Court has explained: A person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging,orfacilitating the commission of the offense, (3) by act or advice aids, promotes, encouragesorinstigates, the commission of the crime. (People v. Marshall (1997) 15 Cal.4th 1, 40, quotations omitted.) Mere knowledgethat a crime is going to be committed and the failure to prevent it does not amount to aiding and abetting. (in re Michael T. (1978) 84 Cal.App.3d 907, 911.) 80 At the close of the prosecutor’s case-in-chief, appellant asked the trial court to acquit him of the murder charge pursuant to Penal Code section 1181.1, which allowsa trial court to enter an acquittal if there is insufficient evidence of a defendant’s guilt.% (RT 1961.) “Where the section 1118.1 motion is madeat the close of the prosecution’s case-in-chief, the sufficiency of the evidence is tested as it stood at that point.” (People v. Trevino (1985) 39 Cal.3d 667, 695.) The prosecutor introduced no direct evidenceto establish what appellant discussed with his brother, to show that he encouraged or instigated the crime. Instead, the case against appellant relied primarily upon the testimony of Sandra Ramirez and Alma Cruz,whostated that appellant had asked Almaif she could “kill a homegirl.” (RT 1187, 1382.) After she told him that it depended on what she had done toher, appellant allegedly stated, “I already have someone doing it for me.” (RT 1382.) It was far from certain what appellant meant whenhesaidthis. Appellant had called Ramirez in order to discuss gang business. (RT 1165, 1167, 1168.) There wasno indication that he had plannedto speakto Alma, she just happenedto be speaking to Sandra at the time he called. (RT 1165.) Appellant did not indicate anything more about what he might have meantby this statement. Accordingly, he could simply have been questioning Alma about how deeply she was committed to the gang structure or referring to other gang business. 29. Section 1118.1, in pertinentpart, provides that the trial court “on motion of the defendant. . ., at the close of the evidence oneitherside and before the case is submitted to the jury for decision, shall order the entry of a judgmentof acquittal of one or moreof the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.” 81 Althoughit was a three-way conversation, Sandra did not hear Alma’s answeror appellant’s response — and neither witness appeared to think that the statement wasparticularly significant. Indeed, they did not even mention it to the investigating officers and did not report it until they spoke with the district attorney just before the preliminary hearing. (RT 1427.) This testimony may haveraised suspicion, but that cannot be equated with evidencesufficient to establish guilt. (People v. Raley (1992) 2 Cal.4th 870, 891; People v. Redmond (1969) 71 Cal.2d 745, 755.) | Even assuming that appellant’s statement to Almaraised suspicion, the remaining case against appellant failed to establish that appellant was a principal in Melinda’s death. Indeed, the speculative nature of appellant’s _ conviction was demonstrated by the rationale used by the trial court whenit denied appellant’s motion under section 1181.1. Thetrial court first found that Sandra Ramirez stated that appellant had tried to convince Melindanottotestify and that appellant was upset by her testimonyat the preliminary hearing. (RT 2057.) Appellant asked Melindanotto testify at the preliminary hearing. (RT 1161.) During Melinda’s testimony, he stood up andstated, “I don’t haveto listen to this shit.” (RT 1055.) Appellant told the investigating officer that her testimony made him either sad or angry. (RT 1613.) Appellant’s statements did not threaten Melinda in any way.It is one thing for appellant to have been angry or upset overher testimony,it is another thing to instigate or plan her death. At most, the evidence might have pointed to a motive, but motive does not provide independent proof since equating it with guilt is speculative and conjectural. (See People v. Cleveland (2004) 32 Cal.4th 704, 750 [jurors would not believe that motive 82 alone wassufficient to establish guilt]; United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104 [motive alone insufficient to prove larceny].) Thetrial court also found that appellant had an opportunity to speak to Ricardo and Uribe from jail through three-way phone conversations. (RT 2057.) Patricia Lopeztestified that there was a single three-waycall between appellant, Ricardo, and Uribe. (RT 1594, 1597.) However,there was no evidence about what wassaid during any of the conversations. Indeed, appellant had phone conversations with several people other than his brother and there was nothing unusual about appellant speakingto his friends, family, or associates. (RT 1606.) That appellant was actively involved in gang business provided ample reason for him to speak to Ricardo and Uribe, even as he spoke with Sandra Ramirez. Although appellant may have had an opportunity to have discussed the crime,this does not mean that he did so. The evidence may haveraised speculation about what appellant might have talked about, but it was not enough to support his conviction. (See People v. Blakeslee (1969) 2 Cal.App.3d 831, 838-841 [evidence that showed an opportunity to commit the crime was insufficient to establish guilt].) Similarly, the trial court noted that appellant’s statement to Detective Oppelt showed that he had lied about whenhefirst learned of Melinda’s death“ (RT 2058.) Even assuming that appellant did not tell Detective Oppelt the truth about when he learned about Melinda’s death orthat he falsely denied having spoken to several individuals from jail over the 30. Thetrial court stated, “We have the statement of Mr. Juan Lopez through Dective Oppelt that Mr. Juan Lopez apparently lied in court, 1s assuming inferring this from other evidence about when he learned of Melinda’s death.” (RT 2057-2058.) Thetrial court’s meaning is somewhat uncertain, since appellant did nottestify. 83 telephone (RT 2303), there was nothing to connect any false statements to the crime in this case. Given appellant’s leadership in a gang, he had many reasonsnotto discuss his conversations with the police. Moreover, appellant’s mental state at the time of the interview did not indicate a consciousness of guilt — he was clearly upset by Melinda’s death, but agreed to try to answerthe officers’ questions. (CT 896-898.) He had been given psychiatric medication and placed on suicide watch, so he did not even remember having been informed abouthis rights in previous interviews. (CT 899-900.) Under these circumstances, what appellant remembered or the reasons why appellant may havetold the officer certainthings are speculative and do not provide reliable evidence against him. Thetrial court also noted that Ricardo said “something”about appellant after the crime. (RT 2057; see RT 1549 [testimony of Angelica Soto].) Even if Ricardo said “something” about appellant, this does not establish that appellant had instigated or encouragedhis brother’s actions. Appellant’s brother may have been motivated by anger toward Melindaorkilled her in order to help appellant, without appellant’s knowledge. Indeed, there was evidence that Ricardo may have acted alone. Ricardo had been drinking shortly before the crime. (RT 1201, 1203.) He wasacting recklessly before shooting Melinda — he even told Sandra that he would shoot her. (RT 1205.) Ricardo then spoke with Melinda. (RT 1216.) He was angry at herfor testifying against appellant. (RT 1836, 1859.) He shot Melinda as she ran away.24 (RT 1218-1219.) Even if Ricardo mentioned appellant, it does not show that he was acting upon appellant’s behest. Ricardo’s statement — which was not subject to cross- 31. Ina statement admitted only against Ricardo,he told the police that he had not meantto kill Melinda, only to wound her. (RT 1861, 1864.) 84 examination — did not establish that appellant was implicated in the crime. Thetrial court finally found that appellant spoke to Sandra Ramirez about changing the location where a new memberof the Baby Locas wasto be initiated (“jumped in”) into the gang. (RT 2058.) A gang meeting had been set before the conversation took place in orderto discuss dues that the Mexican Mafia required the members to pay. (RT 1167, 1324.) Appellant believed that the initiation should take place in the neighborhoodcontrolled by the gang. (RT 1176, 1617.) As Alma Cruztestified, a// of the other Baby Locas had been initiated in a neighborhood location and she had no reason to doubt appellant’s belief that it should be done in this manner. (RT 1455-1456.) It was decided to jump the new memberat the same time and place that they had already planned to meet. (RT 1179.) There was nothing unusual about this. | Both the men’s and women’s gang sections had already planned to attend the Friday meeting, so changing the location of the initiation ceremony did not add anything further to the evidence against appellant. The membersof the Village Locos and Baby Locas (including Melinda) would have attended the scheduled meeting in any event. Thus, changing 32. After the trial court madeits ruling on the section 1181.1 motion, the prosecutor introduced Ramon Ramos’ testimony from the preliminary hearing, stating that Ricardo said “for my carnal [brother]” while holding the gun to his head. (RT 2245, 2249-2251.) Thetrial court admitted the statement as evidence of Ricardo’s state of mind. This evidence should not be considered in determining whetherthetrial court erred in denying appellant’s motion to acquit. (People v. Trevino, supra, 39 Cal.3d at p. 695.) However, for the reasons stated above,it does not provide any further proof of appellant’s guilt. (See also Argument V [statement improperly admitted against appellant].) 85 the initiation ceremony did not makeit easier for Ricardo to have committed the crime — and seemingly only complicated things by ensuring that there would be several witnesses. (See RT 1205-1206 [Ricardo asks Sandra why she brought the others].) In short, there was no evidencethat the meeting arrangement waslinked to Melinda’s death. It did not provide proof of appellant’s guilt. Taken as a whole, the verdict was based on speculation about what appellant might havesaid to his brother. This was not sufficient evidence tosupport the verdict under federal and state due process standards. The trial court erred when it denied appellant’s motion to acquit. Reversal is required. (People v. Allen (2001) 86 Cal.App.4th 909, 918-919 [erroneous denial of motion to acquit requires reversal]; People v. Guiton (1993) 4 Cal.4th 1116, 1129 [reversal required if verdict is legally and factually insufficient].) B. There Was No Independent Evidence Apart from Appellant’s Admissions California’s corpus delicti rule required that appellant’s participation in the murder be proved independently of any admissions. (Peoplev. Holbrook (1955) 45 Cal.2d 228, 234; People v. Beagle (1972) 6 Cal.3d 441, 455; People v. Crew (2003) 31 Cal.4th 822, 836-837.) “Distilled to its essence, the corpusdelicti rule requires that the prosecution establish the corpus delicti of a crime by evidence independentof the defendant’s extrajudicial inculpatory statements before he or she may be . . . convicted of an offense. (People v. Ochoa (1998) 19 Cal.4th 353, 450.) The ruleis that the prosecution cannot meet its burden of proving the corpusdelicti of a crime by relying exclusively uponthe extrajudicial statements, 86 confessions, or admissions of the defendant. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.) The corpusdelicti rule is based on state requirements rather than federal law. (People v. Alvarez (2002) 27 Cal.4th 1161, 1173.) However, appellant has a federal due processliberty interest in assuring that his conviction does not violate California’s requirements. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346.) The prosecution’s case rested primarily upon appellant’s statement to Alma Cruz, but independentproofapart from appellant’s admissions were required underthe corpusdelicti rule. As discussed above, the evidence offered in this case failed to meet this standard. Indeed, appellant’s three- wayphoneconversation with Ricardo and Uribe was admitted to show that appellant had a consciousness of guilt when hetold the police that he had not spoken to them, but there was nothing to link this to the crime — at most, his statementto the police was an admissionthatitself required independent corroboration of guilt. (People v. Wright (1990) 52 Cal.3d 367, 403 [“corpus delicti must be established by the prosecution independently from the extrajudicial statements, confessions or admissions of the defendant.”’].) Without appellant’s admissions, the only evidence against him was that he had an alleged motive to have committed the crime and an opportunity to have plannedit. Yet, both matters were speculative. Appellant did not threaten the victim and noevidence offered against him established what might have been planned. Appellant’s involvementin the crime was not supported by evidence that was independentofhis admissions. The guilt verdict must be reversed. (People v. Alvarez, supra, 27 Cal.4th at pp. 1168-1169.) 87 X. THE TRIAL COURT ERRED IN ADMITTING THE VICTIM’S DIARY AND STATEMENTS THAT SHE HAD MADETO A TEACHER Thetrial court erroneously allowed the prosecutor to introduce in rebuttal an entry in Melinda Carmody’s diary and statements that she had made to her teacher. Appellant objected that these statements were hearsay and improper rebuttal. (RT 2226.) However,the trial court allowed the evidence to be admitted as prior consistent statements under Evidence Code section 1236. (RT 2225-2226.) Thetrial court erred because the statements were made after Melinda’s inconsistent statements and after she had reported the incident to the police and accused appellant. Accordingly, they werenot prior consistent statements underthe statute. Moreover, the testimony violated appellant’s constitutional rights to due process anda fair trial, to confrontation of witnesses andto a reliable capital trial. (U.S. Const. 6th, 8th, & 14th Amends.; Cal. Const. art. I, §§ 7, 15, 16, 17.) A. Factual Background Duringthetrial, the prosecutor introduced Melinda Carmody’s preliminary hearing testimony that appellant came to her house on March 13, 1996. Melindastated that he attacked, wounded her, and dragged her to the car. (RT 921-924.) Appellant drove herto his house, but she stayed in the car with another person whoshe could not identify. (RT 927.) Appellant then droveherto his aunt’s house, where his aunt helped clean her woundsand changeher clothes. Melinda had difficulty communicating with appellant’s aunt because she did not speak Spanish. After a few hours, appellant’s aunt drove her home. (RT 930-931.) Melinda reported the incident to the police when she returned home. (RT 945.) 88 Appellant’s mother, his aunt, and his aunt’s husbandall testified at trial that Melinda did not appearto be frightened and that there was nothing to indicate that she was being held against her will. No one saw that Melinda had suffered any injury. (RT 2119; 2150-2151; 2188.) Appellant’s mothertestified that Melinda gave a her a pen and ink drawing that showed a man and womaninsidea light bulb with a captionstating, “You Light Up My Life” that was dated March 13, 1996, the day of the incident. (RT 2124; see Defense Exhibit E.) | Appellant’s aunt testified in English and stated that she spoke English at the time of the incident. She learned that Melinda and appellant planned to go to Mexico in order to marry. She talked them outof this idea. (RT 2148-2149.) Her husband drove them backto their neighborhood. (RT 2152, 2187.) In rebuttal, over appellant’s hearsay objections, the prosecutor introduced an entry from Melinda’s diary. The entry was written after she gave her statement to the police. It stated, “[Appellant] broke in and stabbed me and choked me and kidnaped me. Wentto Police station, went to Grandma’s.” (RT 2268.) The prosecutor also presented, over appellant’s objections, the testimony of Frank Torres, a former teacher of Melinda’s, whotestified that she told him that appellant had broken into her house, threatened her, held a knife to her neck and took her to his aunt’s house. (RT 2255.) | B. The Victim’s Diary Entry and Purported Statement Were Not Admissible as Prior Consistent Statements Evidenceis subject to exclusion as hearsayif it is an out of court statementthat is offered to prove the truth of the matter. (Evid. Code, § 1200.) Thetrial court admitted Melinda’s statements u 89 under an exception to the hearsay rule as a prior consistent statement under Evidence Code sections 791 and 1236. (RT 2225-2226.) Evidence Code section 791 states: Evidence of a statement previously made by a witnessthat is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: (a) Evidenceof a statement made by him . that is inconsistent with any part of his testimonyat the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or (b) Anexpress or implied charge has been madethat his testimonyat the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was madebefore the bias, motive for fabrication, or other improper motive is alleged to have arisen. Evidence Code section 1236 provides: Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statementis consistent with his testimony at the hearing andis offered in compliance with Section 791. Underthese twosections, the timing of the consistent statementis critical. A prior consistent statement is not admissible unless it was made before the inconsistent statement or the motive for fabrication arose. (See People v. Flores (1982) 128 Cal.App.3d 512, 524 [consistent statement not admissible because it was madeafter the witness had a motive for fabrication]; People v. Mendibles (1988) 199 Cal.App.3d 1277, 1303 90 [statements admissible only if made before the time that the defendant asserted a motive to fabricate had arisen].) Here, appellant presented evidence that placed some of Melinda’s testimony in dispute. However, the only inconsistent statements were those madeto appellant’s witnesses during the incidentitself, when she spoke of going to Mexico with appellant. (RT 2148.) Similarly, the only motive for fabrication that was even hinted at by appellant’s trial counsel was whenhe asked Melinda’s motherif she hadinflicted the injuries after she found out that Melinda had been with appellant. (RT 2275.) Melinda’s diary entry and her statements to Torres were made after “the alleged incident had been reported to the police. At that point, she had already spoketo appellant’s relatives and any motive to fabricate the evidence wasalready present. Accordingly, Melinda’s statements were inadmissible hearsay because they were not made before any other inconsistent statements or before she had a motive to fabricate appellant’s guilt. The trial court erred in finding that the testimony wasa prior consistent statement. C. The Hearsay Testimony Violated Appellant’s Sixth AmendmentRight to Confront the Evidence Against Him The Confrontation Clause of the Sixth Amendmentprovides:“Inall criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The United States Supreme Court recently affirmed that state rules of evidence are subject to the demandsofthis clause. (Crawford v. Washington (2004) 541 U.S. 36, [124 S.Ct. 1354, 1364.) In Crawford, the defendant’s wife gave a tape recorded statementto the police during her interrogation. The prosecutor offered the statement as 91 a declaration against penal interest. (/d. at p. 1357.) However, the Supreme Court held that the defendant had been denied his right to confront the witness. It held that testimonial hearsay statements, including statements “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” must be excluded if the defendant did not have an opportunity to cross-examine the declarant. (/d. at p. 1365.) The Supreme Court did not define the extent of what constitutes “testimonial hearsay,” stating that at a minimumit includes testimony given at certain hearings andpolice interrogations. (/d. at p. 1374.) However, the rationale at the core of Crawford should be applied to the present case. The evidence admitted against appellant simply recounted statements that Melinda hadalready given to the police. This evidence was not introduced at the hearing and appellant had no opportunity to cross-examine her about them. Evenif these statements were not “testimonial hearsay” under Crawford, theystill violated the Confrontation Clause because they did not bear an “adequate indicia ofreliability.” (Ohio v. Roberts (1980) 448 U.S. 56, 65-66 [Confrontation Clause requires hearsay to bear sufficient indicia ofreliability]; see also People v. Pinn (1971) 17 Cal.App.3d 99, 106 [there must be substantial evidence that the statements of the hearsay declarant are “trustworthy and credible”].) The statements were made after Melinda had reported the incident to the police and had committed herself to her particular version of the facts at issue. Whatever motive she had to accuse appellant of kidnaping her had already been established. Accordingly,the evidence wasnotreliable and inadmissible under either Craw/ord or Roberts. 92 C. Reversal is Required The trial court rulings violated the limitations imposed by Evidence Codesections 1236 and 791. Accordingly, the erroneous application of California’s statutory rules deprived appellant of an important procedural protection andliberty interest that is protected under the federal due process clause. (See Evitts v. Lucey (1985) 469 U.S. 387, 401; Hicks v. Oklahoma (1980) 447 U.S. 343, 346.) Thetrial court’s ruling violated appellant’s Sixth Amendmentright to confrontation becauseit allowed hearsay that had no basis for admission. (Crawford v. Washington (2004) 541 U.S. 36; Ohio v. Roberts (1980) 448 U.S. 56, 63.) It also violated the Eighth and Fourteenth Amendmentsinsofar as the evidence atissue did not meet due process and the heightenedreliability that is constitutionally required of evidence used in support of a death judgment. (Beck v. Alabama (1980) 447 U.S. 625, 637-638; Gardner v. Florida (1977) 430 U.S. 349, 357-58.) Because the error implicated appellant’s federal constitutional rights, reversal is required unless the prosecution can establish that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The erroneously admitted evidence affected both the guilt and penalty phasesofthe trial. The kidnaping charge was based on Melinda’s testimony, which wasnotentirely credible. For example, shestated that she had been unable to communicate with appellant’s aunt, Maria Hernandez, because Maria spoke Spanish.. (RT 932.) However, Hernandeztestified in English, was married to a man named “Murphy,” and stated that she spoke English at the time of the incident. (RT 2149.) Appellant presented numerous witnesses whotestified that Melinda had not sustained any injuries andthat there was nothingto indicate that she wasfrightened, 93 scared, or had been abducted against her will. Given the stark contrast _ betweenthis testimony, it is likely that the hearsay persuaded the jury to believe the charges against appellant. It provided testimony that was not subject to challenge. Under these circumstances, the prosecution cannot establish beyonda reasonable doubtthat the trial court’s errors were harmless. Accordingly, this Court must reverse the kidnaping verdict. (Chapman vy. California, supra, 386 U.S.at p. 24.) Moreover, the kidnapingallegation addedto the weight ofthe penalty phase aggravation. Indeed, it was the underlying charge that wasat the heart of the homicide. The inadmissible hearsay provided crucial support for this charge and further inflamed the jury against appellant. It certainly would have been a majorpart of the penalty decision and would have influenced how the jury viewed the testimony of appellant’s family and the mitigation in the support offered appellant through their testimony and presence in the courtroom. Under these circumstances, this Court cannotbe certain that the penalty verdict was not affected by the errors. The death judgment mustbe reversed. (See People v. Robertson (1982) 33 Cal.3d 21, 54 [any substantial error affecting the penalty phaseof a capital trial must be deemed prejudicial].) / H/ 94 XI. THE TRIAL COURT’S INSTRUCTIONS IMPROPERLY ALLOWED THE JURY TO FIND GUILT BASED UPON MOTIVE ALONE It was the prosecutor’s theory that appellant was motivated to instigate the homicide because he was angry about Melinda’s testimonyat the preliminary hearing. Thetrial court instructed the jury under CALJIC 2.51: Motiveis not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstancein this case. Presence of motive may tend to establish a defendant is guilty. Absence of motive may tend to show that a defendantis not guilty. (CT 981; RT 2654.) This instruction improperly allowed the jury to determine guilt based upon the presence of an alleged motive and shifted the burden of proof so that appellant had to show an absence of a motive. As applied to the unique facts of this case, the instruction violated state and federal constitutional guarantees of due process, appellant’s right to a fair trial before a properly instructed jury, and a reliable verdict in a capital case (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art 1, §§ 7, 15, 16, 17.) A. The Instruction Allowed the Jury to Determine Guilt Based on Motive Alone It is beyond question that motive alone is insufficient as a matter of law to prove guilt. As discussed in Argument IX, supra, due process requires substantial evidence of guilt. (Jackson v. Virginia (1979) 443 U.S. 33. Appellant acknowledges that this Court has rejected similar arguments aboutthis instruction (see People v. Nakahara (2003) 30 Cal.4th 705, 713), but the Court should reconsiderits opinion in lightof the facts of this case. 95 - 307.) Motive alone does not meet this standard because a conviction based on motive evidence would be speculative and conjectural. (See e.g., United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104 [motive alone insufficient to prove larceny].) The motive instruction given in this case allowed the jury to useit to establish guilt. In this regard, it stood out from the other standard evidentiary instructions given to the jury. The other instructionsthat covered an individual evidentiary consideration included an admonition that it was insufficientto establish guilt: CALJIC No. 2.03 (Consciousness Of Guilt--Falsehood): “However, that conductis not sufficient by itself to prove guilt... .” (RT 2656; CT 985.) CALJIC No.2.06 (Efforts To Suppress Evidence): “However, this conductis not sufficient by itself to prove guilt... .” (RT 2656-2657.); CT 986.)* . 34. Other CALJIC instructions similarly ensure that a single circumstance cannotbe usedto prove guilt: CALJIC No. 2.04 (Efforts By Defendant To Fabricate Evidence): “However, that conductis not sufficient by itself to prove guilt... .” CALJIC No. 2.05 (Efforts Other Than By Defendant To Fabricate Evidence): “[T]hat conductis not sufficient by itself to prove guilt... .” CALJIC No.2.15 (Possession Of Stolen Property): “{T]he fact of that possessionis not byitself sufficient to permit an inference that the defendant is guilty of the crime of ” CALJIC No. 2.16 (Dog-Tracking Evidence): “This evidenceis not by itself sufficient to permit an inference that the defendant is guilty of the crime of ” 96 Because CALJIC No. 2.51 is startlingly anomalousin this context, it prejudiced appellant during deliberations. The instructions listed above were read within moments of the motive instruction. That instruction would appear to include an intentional omission allowing the jury to determine guilt based upon motive alone. Indeed, they would concludethat if motive were insufficient by itself to establish guilt, the instruction obviously would say so. (See People v. Castillo (1997) 16 Cal.4th 1009, 1020 [deductive reasoning underlying the Latin phrase inclusio unius est exclusio alterius could mislead a reasonable juror as to the scope of an _ Instruction][conc. opn. of Brown,J.].)- . In People v. Dewberry (1959) 51 Cal.2d 548,557, this Court recognized that differing standardsin instructions create erroneous implications. It stated: The failure of the trial court to instruct on the effect of a reasonable doubt as betweenanyof the included offenses, whenit had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide,left the instructions with the clearly erroneous implication that the rule requiring a finding CALJIC No.2.50.01 (1999 Revision) (Evidence Of Other Sexual Offenses): “However, . . . that is not sufficient by itself to prove [beyond a reasonable doubt] that [he] [she] committed the charged crime[s].” CALJIC No. 2.50.02 (1999 Revision) (Evidence Of Other Domestic Violence): “However, . . . that is not sufficient by itself to prove [beyond a reasonable doubt] that [he] [she] committed the charged offense[s].” CALJIC No. 2.52 (Flight After Crime): “[F]light . . . is not sufficient in itself to establish [his] [her] guilt... .” 97 of guilt of the lesser offense applied only as betweenfirst and second degree murder.” (See also People v. Salas (1976) 58 Cal.App.3d 460, 474 [when a generally applicable instruction, is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error].) Here, the facts of the case highlighted the differences between CALJIC 2.51 and other instructions. The prosecutor offered evidencethat appellant was upset with the victim’s testimony during the preliminary hearing. (RT 1055.) This instruction allowed them to make an evidentiary leap and find that appellant must have wantedto kill the victim and discussed this with his brother. In other words, the motive instruction allowed the jury to speculate that appellant planned the crime. No other instruction regarding the consideration of evidence allowed the jury to make such a leap. Accordingly, the instruction violated appellant’s constitutional right to due process of law and his Sixth Amendmentright to a properly instructed jury. The instruction also rendered the resulting verdict unreliable under the Eighth Amendment. B. The Instruction Impermissibly Reduced the Prosecutor’s Burden of Proof and Violated Due Process . The prosecutor had the burden of proving beyond a reasonable doubt that appellant was a principal in the homicide. (Jn re Winship (1970) 397 U.S. 358, 361- 364.) However, by informing the jurors that “motive was not an elementof the crime,”the trial court reduced the burden of proof on a major factorthat the prosecutor’s case demanded — that the jury find that appellant intended to aid, encourage, orinstigate his brother to commit the crime. (People v. Marshall (1997) 15 Cal.4th 1, 40.) The instruction: violated due process by improperly undermining a correct understanding of 98 how the burden of proof beyond a reasonable doubt was supposedto apply. (See Sandstrom v. Montana (1979) 442 U.S. 510; People v. Lee (1987) 43 Cal.3d 666, 673-674 [conflicting instructions on intent violate due process]; Baldwin v. Blackburn (5th Cir. 1981) 653 F.2d 942, 949 [misleading and confusing instructions under state law may violate due process where they are “likely to cause an imprecise, arbitrary or insupportable finding of guilt”].) There is no logical way to distinguish motive from intentin this case. The prosecutor’s case was built upon appellant’s alleged motiveto kill the victim after her preliminary hearing testimony. His alleged motive was the sameas his intent. The law itself uses these terms synonymously in discussing the guilt of a principal: Anaider and abettor’s fundamental purpose, motive and intentis to aid and assist the perpetratorin the latter’s commission of the crime. He may so aid andassist with knowledge or awareness of the wrongful purpose of the perpetrator [citations] or he may so act because he has the sameevil intent as the perpetrator. [Citations.] (People v. Vasquez (1972) 29 Cal.App.3d 81, 87, emphasis added; see also People v. Beaumaster (1971) 17 Cal.App.3d 996, 1007-1008 [using both - “motive” and “intent” to describe a kidnaping for the purpose of robbery]; People v. Bowman (1958) 156 Cal.App.2d 784, 795 [discussing “criminal motive” and “evil intent’”].) Under these circumstances, informing the jurors that motive was not an elementof the crime and need not have been proved wasconstitutional error because it diminishedthe jury’s understanding of what the prosecutor had to prove before they could find appellant guilty. 99 C. The Instruction Shifted the Burden of Proof to Imply that Appellant had to Prove Innocence . CALJIC 2.51 informedthe jurors that the absence of motive could be used to establish that appellant was not guilty. The instruction effectively sled the jury to believe that appellant needed to show that he had no motive to kill the victim. It was particularly important in this case because the prosecutor’s case depended largely upon speculating that appellant must have acted in conformity with this motive — that he must have sought the victim’s death because he was angry abouthertestimonyat the preliminary hearing. This instruction encouraged the jury to adopt the prosecutor’s theory unless appellant established that he had no such anger. As used in this case, CALJIC 2.51 deprived appellant ofhis constitutional rights to due process and fundamental fairness. (Jn re Winship, supra, (1970) 397 U.S. 358, 368 [due process requires proof beyond a reasonable doubt].) The instruction also violated the fundamental Eighth Amendment requirementforreliability in a capital case by allowing appellant to be convicted without the prosecution submitting the full measure of proof. (See Beck v. Alabama (1980) 447 U.S. 625, 637-638 [reliability concerns extend to guilt phase].) Accordingly, the instruction was given in error. D. Reversal is Required As discussed above, the trial court’s error implicated appellant’s constitutional rights under the Sixth, Eighth, and Fourteenth Amendments. Accordingly, this Court must reverse the judgment unless the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) 100 The prosecutor was faced with the difficulty of proving that appellant intended to encouragehis brotherto kill the victim without providing direct evidence of what they might have said to each other. Underthese circumstances, the instruction improperly allowed the jury to convict appellant of first degree murder based upon motive alone, lowered the prosecutor’s burden of proof and allowed the jury to consider whether appellant could show an alternate motive for the crime. The motive instruction waskeyto this case because appellant’s underlying purpose,his alleged motive to commit the crime, was exactly whatthe jury had to considerin order to link appellant’s conversations with his brother to the underlying crime. Taken as a whole, the instruction placed appellant in a “Catch-22”situation that allowed the jury to assume that appellant was guilty because he was angry and to assumethat he was angry because he wasguilty. Either way, it was impossible for appellantto defeat such a motive andto establish his innocence. This Court should find that based upon the facts in this case, the instruction was not harmless beyond a reasonable doubt. Reversalis required. // /I 101 XI. THE CONSCIOUSNESSOF GUILT INSTRUCTIONS WERE IMPERMISSIBLY ARGUMENTATIVE AND ALLOWED THE JURY TO FIND IMPROPER INFERENCESTO ESTABLISH APPELLANT’S GUILT Thetrial court instructed the jury over appellant’s objectionsthatit could consider any false statement by appellant as evidenceofhis consciousnessof guilt. The instruction, CALJIC No..2.03, read as follows: If you find that before this trial a defendant made a willfully false or deliberately misleading statement concerningthe crimes for which he is now beingtried, you may consider such statement as a circumstance tending to prove a- consciousness of guilt. However that conductis not sufficient by itself to prove guilt, and its weight and significance,if any, are matters for your determination. (CT 985; RT 2656.) It also instructed the jury that it could consider any attempt to suppress evidence as something showing consciousnessof guilt. The instruction, CALJIC 2.06, read: If you find that a defendant attempted to suppress evidence against himself in any manner,such as by the intimidation of a witness and/or by concealing evidence,this attempt may be considered by you as a circumstance tending to show a consciousnessof guilt. However, this conductis not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide. (CT 986; RT 2656-2657.) Both ofthese instructions unfairly highlighted evidence favorable to the prosecution and invited the jury to draw critical but irrational inferences against appellant. Although this Court has rejected other challenges to these instructions (see, e.g., People v. Nakahara (2003) 30 Cal.4th 705, - 713), it should reconsider its decisionsin light of the unique facts ofthis 102 case. Theinstructional errors, especially when considered in combination, deprived appellant of due process, equal protection, a fair jury trial, and a fair and reliable jury determination of guilt, special circumstances, and penalty. (U.S. Const., 6th, 8th, & 14th Amends.; Cal. Const., art. I, $§ 7, 15, 16, 17.) A. The Instructions Were Argumentative Argumentative instructions are defined as those which “‘invite the jury to draw inferences favorable to one ofthe parties from specified items of evidence.’ [Citations.].” (People v. Mincey (1992) 2 Cal.4th 408, 437.) Even if they are neutrally phrased, instructions which “ask the jury to consider the impactof specific evidence” (People v. Daniels (1991) 52 Cal.3d 815, 870-871) or “imply a conclusion to be drawn from the evidence” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 105, fn. 9) are argumentative and must be refused. (Ibid.) The consciousnessof guilt instructions were impermissibly argumentative because they singled out isolated facts favorable to one party, thereby, in effect, “intimating to the jury that special consideration should be given to those facts.” (Estate of Martin (1915) 170 Cal. 657, 672.) Here, the instructions at issue informedthe jury that they could consider appellant’s statements or actions as evidenceofhis “consciousness of guilt.” It focused on the prosecutor’s theory of the case by informing the jury that if it found certain facts, then it could consider that evidence for a specific purpose: to show consciousness of guilt. Highlighting the prosecutor’s use of this evidence implicitly discounted any other explanation. The jury wastold that they were to judge appellant to determine whether he showed a consciousness of guilt, and not whether there were other valid inferences. Rather than allow even-handed 103 consideration of the evidence, the instructions were one-sided and therefore argumentative. (Estate ofMartin, supra, 70 Cal. at p. 672.) The Supreme Court of Wyoming has held that giving similar instructions to establish consciousnessof guilt through a defendant’s flight always will be reversible error because it unduly emphasizes certain evidence. (Haddan v. State (Wyo. 2002) 42 P.3d 495, 508.) In so doing,it joined a numberofother state courts that have found similar flaws in such instructions.2~ | The reasoning of two casesare particularly persuasive. In Dill v. State, supra, 741 N.E. 2d 1230, the Indiana Supreme Court relied on that state’s established ban on argumentative instructions to disapproveflight instructions: Flight and related conduct may be considered by a jury in determining a defendant’s guilt. [Citation.] However, although evidenceof flight may, under appropriate circumstances, be relevant, admissible, and a proper subject for counsel’s closing argument, it does not follow that trial court should give a discrete instruction highlighting such evidence. To the contrary, instructions that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved. [Citations.] We find no reasonable groundsin this case to justify focusing the jury’s attention on the evidenceofflight. (id. at p. 1232, fn. omitted.) 35. Courts in at least eight other states have held that flight instructions should not be given because they unfairly highlight isolated evidence. (Dill v. State (Ind. 2001) 741 N.E.2d, 1230, 1232-1233; State v. Hatten (Mont. 1999) 991 P.2d 939, 949-950; Fenelon v. State (Fla. 1992) 594 So.2d 292, 293-295; Renner v. State (Ga. 1990) 397 S.E.2d 683, 686; State v. Grant (S.C. 1980) 272 S.E.2d 169, 171; State v. Wrenn (Idaho 1978) 584 P.2d 1231, 1233-1234; State v. Cathey (Kan. 1987) 741 P.2d 738, 748-749; State v. Reed (Wash.App.1979) 604 P.2d 1330, 1333.) 104 In State v. Cathey, supra, 741 P.2d 738, the Kansas Supreme Court cited a prior case which had disapproveda flight instruction (id. at p. 748) and extended its reasoning to coverall similar consciousnessof guilt instructions: It is clearly erroneous for a judge to instruct the jury on a defendant’s consciousnessof guilt by flight, concealment, fabrication of evidence,or the giving of false information. Such an instruction singles out and particularly emphasizes the weight to be given to that evidence bythejury. (Id. at p. 749; accord, State v. Nelson (Mont. 2002) 48 P.3d 739, 745, holding that the reasons for the disapprovalofflightinstructions also applied to an instruction on the defendant’s false statements.) This Court should adopt the reasoning from the cases noted above. Appellant had a federal and state due processright to fairness and equality. (See Wardius v. Oregon (1973) 412 U.S. 470, 474 [due process requires a “two-way street” between prosecution and defense].) Since the instructions highlighted theprosecution’s theory at the expense of appellant, they were particularly unfair. Indeed, there was no need for the consciousnessofguilt instructionsin this case since the trial court instructed the jury on how to consider circumstantial evidence, allowing either party to presentits argument without highlighting the specific use of this evidence by the prosecution. (See People v. Lewis (2001) 26 Cal.4th 334, 362-363; People v. Ochoa (2001) 26 Cal.4th 398, 454-455 [consideration of evidence that simply reiterate a general principle upon which the jury already has been instructed should not be given].) Theinstructions therefore violated appellant’s due process right to a fair trial and his right to equal protection of the laws (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15), his night to receive an acquittal unless 105 his guilt was found beyond a reasonable doubtby an impartial and properly- instructed jury (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16), and his right to a fair and reliable capital trial (U.S. Const., 8th & 14th Amends; Cal. Const., art. I, § 17). Under these circumstances,the trial court erred in giving an argumentative instruction. (People v. Sanders (1995) 11 Cal.4th 475, 560 [trial court must refuse to deliver any instructions which are argumentative].) B. The Instructions Allowed the Jury to Make Irrational Inferences The consciousnessof guilt instructions given in this case allowed the jury to make certain inferences: they permitted the jury to infer onefact, consciousness of guilt, from other facts,1.e., false statements (CALJIC 2.03) or attemptsto conceal evidence (CALJIC 2.06). These instruction violated constitutional standards because they permitted inferences based on evidence that was notnecessarily linked to the underlying crime. The constitutionality of a permissive inference instruction depends upon whetherthere is a rational connection between the facts foundbythe jury from the evidence and thefacts inferred by the jury pursuantto the instruction. (Ulster County Court v. Allen (1979) 442 U.S. 140, 157; United States v. Gainey (1965) 380 U.S. 63, 66-67; United States v. Rubio- Villareal (9th Cir. 1992) 967 F.2d 294, 296 (en banc).) The Due Process Clause of the Fourteenth Amendment“demandsthat even inferences — not just presumptions — be basedon rational connection between the fact proved and the fact to be inferred.” (People v. Castro (1985) 38 Cal.3d 301, 313.) In this context, a rational connection is not merely a connection that is logical or reasonable;it is rather a connection that is “morelikely than 106 not.” (Ulster County Court v. Allen, supra, 442 U.S. at pp. 165-167, andfn. 28; see also Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313, 316 9{noting that the Supreme Court has required “‘substantial assurance’ that the inferred fact is ‘more likely than not to flow from the proved fact on whichit is made to depend’”].) This test is applied to judge the inference as it operates underthe facts of each specific case. (Ulster County Court, supra, at pp. 157, 162-163.) Here, appellant objected that the instruction was improperly applied to the evidenceinthis case. (RT 2303.) The prosecutor stated that CALJIC 2.03 could be given to the jury because appellant told the investigating officer that he had notspokento his brother. (RT 2303.) Similarly, the prosecutor stated that CALJIC 2.06 applied to appellant, in part, because he asked Sandra Ramirez to tell the victim not to go to court over the kidnaping charge and not to say anythingto the police after the victim was killed.*% (RT 2305.) These actions did not necessarily indicate a consciousnessof guilt, yet both instructions contained far-reaching implications that allowedthe jury to speculate that these actions showed appellant’s guilt. | Appellant’s actions would have been the same with regard to any potential crime orhis activity — the sameactionsthat were used to show consciousnessofguilt of a kidnaping or a plan to murder were equally attributable to his status as a gang leader. Appellant’s statement to the police investigators, denying contact with other gang members,did not indicate that he was deliberately misleading the police in regard to his 36. The prosecutorstated that this instruction would also apply because appellant asked Alma Cruz if she could kill a homegirl. Thetrial court stated that it did not follow this use “quite as well.” (RT 2306.) 107 involvementin the homicide,particularly because he had not been charged in the matter. Thereis certainly nothing extraordinary about not wanting to provide information about his conversations with his brother, or about telling a gang membernotto say anything to the police, particularly if his brother was involved in the crime and the crime had implications for the gang as a whole. There was no evidencespecifically tying appellant’s “consciousness of guilt” to the crimes charged or establishing that the inferences about these crimes were morelikely than not to be true. The instructions were therefore constitutionally infirm. (See Ulster County Court v. Allen, supra, 442 U.S.at pp. 165-167.) . Because the consciousnessof guilt instructions permitted the jury to makeirrational inferences of guilt against appellant, both instructions undermined the reasonable doubt requirement and denied appellant a fair trial and due process of law (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15). The instructions also violated appellant’s right to have a properly instructed jury find thatall the elements of all the charged crimes had been proven beyond a reasonable doubt. (U.S. Const., 6th & 14th Amends;Cal. Const., art. I, § 16), and, by reducing thereliability of the jury’s determination andcreating the risk that the jury would make erroneous factual determinations, the instructions violated his right to a fair and reliable capital trial (U.S. Const., 8th & 14th Amends;Cal. Const., art. I, § 17). Cc. Reversal is Required Theinstructionsat issue here allowed the jury to inferthat appellant’s statements indicated that he was guilty of the charged crimes. In a case where the evidence against appellant was thin at best (see Argument IX [insufficient evidence]), the improper inferences permitted by the 108 instructions took on special significance. It allowed the jury to assumethat even comparatively innocent actions were equated with appellant’s guilt. This added significant weight to the evidence against appellant. Under these circumstances, this Court cannot find that the erroneousinstructions were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,24; see Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313, 316 [A constitutionally deficient jury instruction requires reversal unless the error is harmless beyond a reasonable doubt”’].) a // 109 XU. THE PROSECUTOR’S CLOSING ARGUMENTIN THE GUILT PHASE IMPROPERLY ATTACKED APPELLANT’S COUNSEL AND LINKED APPELLANT TO EVIDENCE THAT WAS ADMITTED ONLY AGAINST APPELLANT’SBROTHER During his closing argument in the guilt phase of thetrial, the prosecutor attacked the honesty of appellant’s trial counsel and improperly implied that there were facts not in evidence that linked appellant to a plan to kill Melinda that involved both Uribe and Ricardo. These arguments _ constituted prosecutorial misconduct, violating appellant’s due process rights to fundamental fairness and affectingthe reliability of the guilt verdict in a capital case. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 17.) | In particular, the prosecutor responded to the arguments of appellant’s trial counsel by engaging in personal attacks. He rebuked any suggestion that his evidence was speculative by attacking the credibility of both defense counsel: But who wants you to speculate? I want you to think about what the — counsel has looked you in the eye unblinkingly and just said straight out, butter wouldn’t melt in their mouth. ... (RT 2601.) Defense counsel objected and their objection was sustained by the trial court. (RT 2601.) The prosecutor also denigrated appellant’s counselin discussing the car burglary charge by stating, “I thought Mr. Gladstein had been in the courtroom during the testimony.. ..” (RT 2604.) Again the trial court sustained appellant’s objection. (RT 2604.) The prosecutor later argued that if Sandra Ramirez and Alma Cruz wanted to implicate appellant, they would have quoted him as saying, “I’ve 110 got Ricardo and Pelon [Uribe] working on this.” (RT 2525.) Appellant objected that the prosecutor was arguing facts not in evidence, but the trial court overruled the objection and permitted the argument. (RT 2625-2626.) A. The Prosecutor Erroneously Denigrated Defense Counsel The prosecutor attacked the integrity of appellant’s trial counsel, effectively accusing him oflyingto the jury so that “butter would not melt” in his mouth. (RT 2601, 2604.) This Court hasset firm limits prohibiting this kind of conduct. “A prosecutor commits misconductif he or she attacks the integrity of defense counsel, or casts aspersionson defense counsel.” (People v. Hill (1998) 17 Cal.4th 800,832.) “‘An attack on the defendant's attorney can be as seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.”” (Ibid, quoting 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988), Trial, § 2914, p. 3570; see also People v. Bell (1989) 49 Cal.3d 502, 538 [improper for prosecutor to resort to personalattacks on the integrity of opposing counsel].) The Court has observedthatif there is merely “a reasonable likelihood that the jury would understand the prosecutor's statements as an assertion that defense counsel sought to deceive the jury, misconduct would be established.” (People v. Cummings (1992) 4 Cal.4th 1233, 1302.) In People v. Jones (1997) 15 Cal.4th 119, 167, the Court foundthat a prosecutor committed misconduct bystating that the defendant’s counsel was not candid with the jury. Similarly, in People v. Sandoval (1992) 4 Cal.4th 155, 183, the prosecutortold the jury that the defendant’s counsel had perpetrated a fraud upon thetrial court. The Court stated that this kind of remark was improper. (/d. at p. 184.) 111 Other courts have also found that a prosecutor commits misconduct by denigrating a defendant’s counsel. (See, e.g., United States v. Rodrigues (9th Cir. 1998) 159 F.3d 439, 451 [prosecutorial misconduct denied defendant fair trial where prosecutor misstated law and slandered defense counsel]; People v. Ray (1984) 126 Ill.App.3d 656, 660 [467 N.E.2d 1078] [misconduct to repeatedly charge defense counsel with “lying” to jury, and trying to “confuse” and “intimidate” jury]; Washington v. State (Fla. App. 1997) 687 So.2d 279, 280 [reversal for characterizing the defense as “nothing but a big lie’’].) Here, the prosecutor clearly stated that appellant’s counsel could look the jurors in the eye and lie to them. This wasa direct attack upon counsel’s credibility and his ethics. It went far beyond what this Court found improper in Jones and Sandoval. It should not be condoned. B. The Prosecutor Improperly Argued Facts Not in Evidence It is well-established that a prosecutor may make reasonable inferences based upon the evidence, but may not mischaracterize facts or argue facts that are not in evidence. (People v. Hill, supra, 17 Cal.4th at p. 823; People v. Lewis (1990) 50 Cal.3d 262, 283.) A prosecutor’s argument violates due processif it infects the trial with unfairness. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643.) Argumentbased on facts not in evidencealso violates the Eighth Amendment requirementthat a verdict in a capital case be an informed, reasoned, and reliable decision. (See Penry v. Lynaugh (1989) 492 U.S. 302, 319; Beck v. Alabama (1980) 447 U.S. 625, 638 [65 L. Ed. 2d 392 , 100 S. Ct. 2382] [constitutional requirements for reliability in capital case extends to guilt determination].) Thetrial court erred in denying appellant’s objection to the prosecutor’s statement that Sandra Ramirez would have linked Uribe and 112 Ricardo to appellant if she had been trying to implicate him falsely. Sandra would have had no reason to mention Uribe in this context. There was no evidence to indicate that Sandra believed Uribe wasinvolvedin the crime. Indeed, there was nothingto tie Uribe to the crime other than Ricardo’s statements to the police, which were not admitted against appellant. Accordingly, there was no legitimate reason for the prosecutorto have argued that Sandra would have named both Ricardo and Uribe if she had wanted to implicate appellant. The prosecutor’s argument was based on facts that were notin evidence against appellant and mischaracterized any argument that might have been madein regard to Sandra. C. Reversal is Required The importance of the prosecutor’s closing argumenthas long been recognized: The argumentof the district attorney, particularly his closing argument, comes from an official representative of the People. As such, it does, and it should, carry great weight. It must therefore be reasonably objective. . . . the prosecuting attomeys are governmentofficials and clothed with the dignity and prestige of their office. What they say to the jury is necessarily weighted with that prestige. It is their duty to see to it that those accused of crime are afforded fairtrial. (People v. Talle (1952) 111 Cal.App.2d 650, 677.) Because of the great weight carried by the prosecutor, “[iJmproper suggestions, insinuations, and especially assertions of personal knowledge are apt to carry much weight against the accused whenthey should properly carry none.” (Bergerv. United States (1935) 295 U.S. 78, 88.) In determining the prejudicial effect of prosecutorial misconduct, the Court “must weigh the cumulative effect of the improper statements that pervaded the prosecutor's closing argument.” (People v. Herring (1993) 20 113 Cal.App.4th 1066, 1075.) Even when objections to prosecutorial misconduct have been sustained, the misconduct may be considered in determining the prejudicial effect of other error. (See People v. Hill, supra, 17 Cal.4th at p. 829 [misconduct to which objections had been sustained added to weight of other misconduct].) The prosecutor’s argument about Sandra Ramirez was particularly prejudicial because,in order to convict appellant of the homicide, the prosecutor had to show that appellant had instigated or encouraged Ricardo. The only direct evidence that Ricardo planned the crime with another was Ricardo’s statementto the police. This was not admitted against appellant. Therefore, the prosecutor needed to encourage the jury to assumethat appellant must have been involvedin the planning if Ricardo wasguilty. His statementto the jury madeit appearas if this was a natural assumption, based onall the information that the prosecutor knew. The merefactthat he assumed that Sandra would have linked appellant to facts established only in the case against Ricardo encouraged the jury to make the same link and find that appellant wasguilty. Moreover, the prosecutor’s suggestion was particularly harmful because he bolstered his credibility by attacking the honesty of opposing counsel. The clear message wasthat appellant was dishonest to argue that there was insufficient evidenceof his guilt, but the prosecutor was honest and authoritative. Althoughthetrial court sustained appellant’s objections, the prosecutor’s point was established. He arguedhis credibility and usedit to encouragethe jury to speculate that appellant planned the crime with Ricardo and Uribe. The evidence against appellant was based only upon the narrowest thread. Therefore, anything that the prosecutor could do to link appellantto 114 Ricardo’s statement would have weighed heavily in the jury’s deliberations. Underthese circumstances, this Court cannotfind thatthe prosecutor’s improper argument was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24.) // // 115 XIV. THE PROSECUTOR’S PENALTY PHASE ARGUMENT IMPROPERLY STATED THAT THE CRIME ALWAYS REQUIRED A DEATH SENTENCE AND PRESENTED AN EMOTIONALPLEA TO THE JURORS RECALLING THE CRY FOR VENGEANCE ON THE PART OF THE VICTIW’S FAMILY The prosecutor’s penalty phase argument went beyondthe limits of acceptable advocacy by using emotion in order to inflame the jury and by arguing that the death sentence was required to protect the two main witnesses in this case and to preserve the rule of law. The argument violated appellant’s federal and state constitutional rights to due process and a reliable penalty verdict. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 17.) A. Factual Background Even on the face of the record, it is apparent that the prosecutor delivered a very emotional argumentto the jury. Over appellant’s objection that the argument was improper,the trial court allowed the prosecutortotell the jury that appellant had placed Sandara Ramirez and Alma Cruz in a very bad position. (RT 2856.) The prosecutor took advantage ofthis ruling to continuehis Jine of argument: Hearranged through them, using them to get someonethat wastheir friend in a position to be killed, and duringthat conversation, whatis he talking about? He’s talking aboutthe Mexican Mafia. He’s talking about dues. He’s talking about killing homegirls. And then afterwards, they’re told not to say anything. Theystill had enough courage to dothe right thing, butit took a lot of courage. So when doestheir nightmare end? When canthey stop looking overtheir shoulder? (RT 2856.) 116 The prosecutor went on to compare his version of appellant’s life in prison with the experience of the victim’s family: I want to you to think about when you’rea lifer and you’re in prison, what are you doing? What can you do? Can you read? Can you watch tv? Can you work out? Can you have friends. It might be monastic, but do you have a life? Do you ‘continue to breathe the air that is upon this earth? Do you continue to think? Do you continue to write to your friends and family? Do you have visits? Do you havelife. Do you havea life? On holidays, or whatever, can you family come and see you. If Mindy’s family wantto visit her, they can’t. If they want to talk to — well, I take that back because they can go to the grave site, and whata bleak and lonely experience that must be, to see the — visit the grave of yourchild. And when they talk to her, I know that they hope and they pray that she’s listening and hearing their words, but its not the same as 37/holding your child or holding your grandkids.~ (RT 2866.) Thetrial court “noted” appellant’s objection that the prosecutor was asking thejury to base their decision on emotion. (RT:2866.) The prosecutor expanded the scope of his argumentto state that the justice system failed to protect the victim. (RT 2867-2868.) He told the jury that the witnesses in this case had courage, “knowing that a person such as the defendant here has connections.” (RT 2868.) He then concluded his argument with another very emotional appeal that placed the jury in the role of protecting these witnesses and society as a whole. He told the jury that unlike the victim, the system must protect Sandra and 37. This argument echoed testimony by EdnaSteffen, the victim’s grandmother, that she was vengeful because her granddaughter was dead but that appellant remained alive. (RT 2819.) 117 Almaandthattheir trust in the system and “their need for justice” was in the juror’s hands. (RT 2869.) He warnedthat if “people ever feel that that trust is misplaced, we cannot function as a society.” (RT 2869.) He equatedthis trust with the death penalty: Youlook at the defendant and you’ll have to say to him,I know what you are. I know what you‘ve done. And wewill not, we cannot, if we’re to survive as a society tolerate this. It cannot be done. It cannot be accepted. You haveto say to him very clearly that this was way overthe line and that if you have anything to say aboutit at all, he will never be put ina position where he will be able to do this again. (RT 2869-2870.) The trial court again “noted” appellant’s objection to the prosecutor’s improper argumentbutdid not sustain it. (RT 2870.) B. The Prosecutor Improperly Arguedthat the Death Sentence was Needed to Protect the Witnesses in this Case and Maintain the Rule of Law , _ A prosecutor “maystrike hard blows, [but] he is not at liberty to strike foul ones.” (Berger v. United States (1935.) 295 U.S. 78, 88.) Accordingly, a prosecutorviolates state law by using “deceptive or reprehensible methods”to attempt to persuadethe jury. (People v. Hill (1988) 17 Cal.4th 800, 819.) A prosecutor’s misconduct also implicates federal due process guarantees if it infects a trial with fundamental unfairness. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643.) Moreover, the Eighth and Fourteenth Amendment guaranteesofreliability in capital sentences requires exacting scrutiny of a prosecutor's conduct and a trial court's errors. (Beck v. Alabama (1980)447 U.S. 625, 638.) The prosecutor’s argumentplays a particularly importantrole in the penalty phase. The death penalty must be a “reasoned moral responseto the defendant's background, character and crime.” (Penry v. Lynaugh (1989) 118 492 U.S. 302, 328.) Accordingly, it is misconduct for the prosecutor “to make comments calculated to arouse passion or prejudice.” (People v. Mayfield (1997) 14 Cal.4th 668, 803.) Improper appeals include arguments designed to inflame a juror’s personal fears and emotions. (Newlon v. Armontrout (8th Cir. 1989 885 F.2d 1328, 1335; see Darden v. Wainwright (1986) 477 U.S. 168, 180-181 [improper argument that death penalty was only guarantee against a future similar act]; People v. Haskett (1982) 20 Cal.3d 841, 864 [“irrelevant information or inflammatory rhetoric that divertsthe jury's attention from its properrole or invites an irrational, purely subjective response should be curtailed”]; Bertolotti v. State (Fla 1985) 476 So.2d 130, 133 [prosecutor’s appeal to consider the message sent to the community was “obvious appeal to the emotions and fears of the jurors”’].) The prosecutor violated these limits in his closing argumentto the jury. 1. The prosecutor improperly urgedthe jury to protect Sandra Ramirez and Alma Cruz Nearthe beginning ofhis argument, the prosecutor stated appellant subjected Sandra Ramirez and Alma Cruzto a continuing nightmare. (RT 2856.) He concluded bytelling the jury that they must protect them, and that future of our society wasin the jurors’ hands. (RT 2869.) He told the jury that the way to accomplish this was to put appellant to death: “He will neverbe putin a position where he will be able to do this again.” (RT 2870.) The prosecutor’s message was unmistakable — the system had failed the victim and the death penalty was the only waythat the jury could prevent appellant from posing a future danger to Sandra and Alma. This argument wasinflammatory becauseit set the jury up to be Sandra and Alma’s personal guardians and diverted the jury from its propertask. 119 The argument wasparticularly improper because there was no evidence that appellant had threatened them in any way. Appellant had not threatened the witnessesat this trial, nor did he threaten all the witnesses who hadtestified in earlier hearings. Even assumingthat he committed the underlying crime,his relationship with Melinda was unique and his reaction to her testimony was undoubtedly influenced by their past relationship. Appellant had hoped to marry her in Mexico, instead she testified against him. Her testimony affected him in ways that Sandra and - Alma’s testimony could never have done. Moreover, the prosecutor’s argumentalso suggested that appellant — would present a danger as long as he was imprisoned. This Court has allowed prosecutors to argue that a defendant presents a future danger, based upon the evidence. (People v. Davenport (1985) 41 Cal.3d 247, 288.) This Court should reconsider its opinion because future dangerousness is not a proper aggravating factor under California law. (See Pen. Code § 190.3; People v. Boyd (1985) 38 Cal.3d 762, 772-776.) The prosecutor’s argumentthat the death penalty was necessary to prevent appellant from committing similar crimes therefore violated due processbyarbitrarily depriving appellant of his state-created liberty interest in a sentencing determination based solely on the statutory factors. (Hicks v. Oklahoma, 38. Ramirez testified that she had received a letter from appellant’s brother warning hernotto testify. (RT 1285-1292.) Thetrial court allowed this evidence because Ricardo’s statement affected Ramirez. (RT 1144.) Nothingtied the letter to appellant and it would have been improperforthe jury to considerit as substantive evidence against appellant. (See People v. Hannon.(1977) 19 Cal.3d 588, 599-600 [threats against a witness not attributable to the defendant are inadmissible].) 120 supra, 447 U.S.at p. 346 [due processliberty interest in the requirements of state law].) 2. The prosecutor improperly told the jury that the rule of law depended on the imposition of the death penalty According to prosecutor, the jurors bore the responsibility for the entire justice system: that if we are to survive as a society, the crime of killing a witness must be punished by death. (RT 2869-2870.) Indeed, underthe prosecutor’s rationale, the death penalty should be imposed any time the special circumstance wasfound tobe true: This argument misled the jury because the law wassatisfied with either life imprisonment without parole or the death sentence. (See People v. Brown (1985) 40 Cal.3d 512, 537, fn. 7.) It prevented the jurors from considering mitigation and reaching an individualized judgment about appellant, becauseif the special circumstance warranted the death penalty in andofitself, no amountof mitigation could ever overcomeit. (See Eddings v. Oklahoma (1982) 455 U.S. 104, 105 [8th and 14th Amendments require consideration of mitigating evidence].) In so doing, the prosecutor diminishedthe jurors’ sense of personal responsibility for an individualized penalty verdict. (See Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329; Darden v. Wainwright (1986) 477 U.S. 168, 183, fn. 15 [Caldwell extends to any argumentthat diminishesa juror’s sense of personal responsibility.) The prosecutor’s argument improperly inflamed the jurors’ emotions by suggesting that the death penalty was necessary to society’s survival. (See United States v. Williams (9th Cir. 1993) 989 F.2d 1061, 1072 [improper to use community role ofjurors to appeal to their passions].) It is a juror’s emotional response to such appeals that renders them egregious in the guilt phase. (See Viereck v. United States (1943) 318 U.S. 236, 247 121 [prosecutor's statements suggesting that others were relying on the jurors for protection compromisedthe verdict]; United States v. Solivan (6th Ctr. 1991) 937 F.2d 1146 [improper for prosecutor to appeal to community conscience and fear of future crime].) It was similarly improperin the penalty phase to for the prosecutor to havestirred the emotionsofthe jurors by suggesting that they are under a societial duty to impose death. (See Newlon v. Armontrout, supra, 885 F.2d at p. 1335 [improper to appealto | jurors’ personal fears and insinuate that all murders should be punished with death]; Cunningham v. Zant (11th Cir. 1991) 928 F.2d 1006, 1019-1021 [numerous comments, including, “how do you knowthat if you let him gothis time it won't be done again” were designed to appeal“to the jury's passions and prejudices” and required reversal].) The prosecutor madeit appearas if the survival of Sandra, Alma, and society as a whole depended upon a death verdict. In effect, he told the jury that all expected the death penalty — the jury had to makesurethat Sandra and Alma’s trust was not misplaced; society had to make sure that this crime was not tolerated. According to the prosecutor, Sandra and Alma’s lives were in the jury’s hands, as well as the future of our very rule of law. (RT 2869.) The impactof this argument was overwhelming. Accordingly, this Court should find that the prosecutor violated due process by infecting the trial with fundamental unfairness and compromised the Eighth Amendment’s requirements for a reliable penalty verdict. C. The Prosecutor Improperly Contrasted Life in Prison with the Victim’s Family Visiting the GraveSite . ‘“{D]ramatic appeal to gut emotion has no place in the courtroom, especially in a case involving the penalty of death.” (Hance v. Zant (11th Cir. 1983) 696 F.2d 940, 952.) The prosecutor in this case ignored this 122 limitation and described Melinda’s family visiting the gravesite, hoping and praying that she would hear their words, in order to contrast their loss with appellant serving a life sentence without parole. (RT 2866.) The prosecutor invited the jury to weigh the comparative pain of the victim’s family against appellant’s life in prison. This argument was designedsolely to inflame the emotionsof the jurors. It set up a standard that no defendant in a capital case could ever overcomebecause the victim’s loss will always be real and a defendant’s sentenceto life in prison will always mean that he or she lives. The prosecutor’s argument violated appellant’s constitutional rights to due process anda reliablepenalty verdict. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 17.) 1. The argument was an inflammatory call for vengeance Referencesto visits to the victim’s grave site are inflammatory. In Duckett v. State (Okla.Crim.App. 1995) 919 P.2d 7, the prosecutor argued in wordsstrikingly similar to the present case: Ladies and Gentlemen,is it justice to send this man downto ' prison, let him have clean sheets to sleep on every night, three good meals a day, visits by his friends and family, while John Howard[the victim] lies cold in his grave? Is that justice? Is that your conceptofjustice? How do Jayme and Tom and John’s son [the victim’s family] go visit him?” (id. at p. 19.) The reviewing court unhesitantly foundthis to be error: “These kinds of comments cannot be condoned. Thereis no reason for them and counsel knowsbetter and does not needto go so far in the future.” (Ibid.; see also Welch v. State (Okla.Crim.App. 2000) 2 P.3d 356, 373, [evidencethat the victim’s son put flowers on his mother's grave and brushed the dirt away “had little probative value of the impact of[the victim’s] death on her family and was more prejudicial than probative”J; 123 Walkerv. Gibson (10th Cir. 2000) 228 F.3d 1217, 1243 [prosecutor improperly appealed to the jury’s emotions by referring to one victim as being “cold in his grave”] Here, the prosecutor’s argument wasparticularly inflammatory in light of the testimony of the victim’s grandmother. Edna Steffen testified about her obsession with revenge. (RT 2819.) She stated that she remained vengeful because her granddaughter was dead, but appellant was alive and in prison. (RT 2819.) Ina penalty trial that lasted only one day,the grandmother’s heart-felt testimony would have beenin the jurors’ minds. That the prosecutor echoedthis feeling, in even more graphic terms, validated the grandmother’s emotional response to the crime. Under these circumstances, the prosecutor’s argument wasa call for vengeance, presented in a waythat no juror could ignore. (See Furman v. Georgia (1972) 408 U.S. 238, 344-345 (conc. opn. of Marshall, J.) [8th Amendment limits the role of retribution and vengeancein the penalty determination].) 2. The argument improperly used victim impact evidence The United States Supreme Court allowed victim impact evidence in order to offer a “quick glimpse”into a victim’s life that showed one’s “uniqueness as an individual human being.” (Payne v. Tennessee (1991) 39. Appellant objected to this testimony, but the trial court inexplicably ruled that no question was pending. Because appellantdid not pursue the matter or ask that the jury be admonished, any issue about the testimony was not preserved for appeal. However,it clearly violated the prohibition of victim impact witnessestestifying about their opinion ofthe appropriate punishmentfor a defendant. (See Booth v. Maryland (1987) 482 U.S. 496; 508-509.) The testimony is presented here in order to show how the prosecutor adopted the same themein his closing argument and misused the victim impact evidence. 124 501 U.S. 808, 823.) Although such evidence was permissible, the Court emphasized that victim impact evidenceis not offered to encourage comparative judgments” between the defendant and the victim. (/bid.) | Nordoes it permit the prosecutor to use inflammatory evidencethat renders the trial fundamentally unfair. (/d. at p. 825.) The prosecutor’s argument misused the victim impact evidencein this case by inviting the jury to comparethe loss suffered by the victim’s family with the value of appellant’s life in prison. The comparison inflamed appellant’s jury against him and violated due process and Eighth Amendmentstandards. The argument wassimilar to one that invites comparisons between the life of a victim and that of a defendant. A numberofstate courts have found that such comparisons are unduly inflammatory. (See Svatev. | Koskovich (N.J. 2001) 776 A.2d 144, 182 [Common experience informs us that comparing convicted murderers with their victimsis inherently prejudicial because defendantsin that setting invariably will appear more reprehensible in the eyes ofjurors”]; State v. Storey (Mo. 1995) 901 S.W.2d 886, 902 [jury must “consider a wide array of aggravating and mitigating circumstances,” but the question of whose life was more important was not among them.]; State v. Rizzo (Conn. 2003) 833 A.2d 363, 419-420 [improperto argue thatjury should balancethe life of the defendant against that of the victim]; see also Utah Crim. Code, § 76-3-207, subd,(2)(a)(iii) [permitting the introduction of victim impact evidence but only “without comparison to other persons or victims”].) Overemphasizing the permanencyofthe victim’s death, as contrasted to life in prison, is also erroneous becauseall homicides by definition involvethis situation. As the Oklahoma court has found,“the State’s contention — it is unfair for [the defendant] to live since [the victim] 125 is dead — creates a super-aggravator applicable in every death case. No amount of mitigating evidence can counter this argument, and if the jury agrees they may not even consider mitigating evidence.” (Le v. State (Okla.Crim App. 1997) 947 P.2d 535, 554-555; see also Eddingsv. Oklahoma, supra, 455 U.S. at p. 105 [8th and 14th Amendments require individualized consideration of mitigating evidence].) Accordingly, the trial court erred in allowing the prosecutor to compare appellant’s life in prison with the loss to the victim’s family. | D. Reversalis Required. The prosecutor’s argument focused on extremely emotional matters that led the jury to believe that the death penalty was required without any real consideration of mitigating evidence — whetherit be that the type of crime required the death penalty in order to preserve the rule of law or that the loss suffered by the victim’s family inherently made it unjust or unfair for appellant to live. The jury could not have ignored the prosecutor’s passion, evident evenin the cold record of a transcript, that the death penalty was necessary to protect Sandra, Alma, and society as a whole. The prosecutor offered the jury an easy way to make a hard choice. If death were required to protect society or the witnesses in this case — ifit were necessary to avengethe victim’s loss — then it need not determine an individualized sentence. Given the great weight afforded a prosecutor’s words and the 45-minute speed oftheir deliberations, it is clear that the jury took the prosecutor’s invitation and imposed the death penalty withoutthe kind of determination required under the federal and state constitutions. (See Berger y. United States, supra, 295 U.S.at p. 88 [prestige of prosecutorcarries great weight]; People v. Talle (1952) 111 Cal.App.2d 650, 677 [prosecutor given great weight]; People v. Sandoval (1992) 4 126 Cal.4th 155, 205 (dis. opn. of Mosk, J.) [prosecutor improperly offered jurors an easy way to avoid a hard choice].) In the penalty phase, any substantial error requires reversal. (People v. Robertson (1982) 33 Cal.3d 21, 54; People v. Ashmus (1991) 54 Cal.3d 932, 965; Chapmanv. California (1967) 366 U.S. 18, 24 [federal constitutional error requires reversal unlessit is harmless beyond a reasonable doubt].) In this case, the emotional and far-reaching impact of the prosecutor’s argument affected the jurors understanding of their duty and ensured that they would automatically vote for death. The error requires that the judgmentof death be reversed. // // 127 XV. THE TRIAL COURT FAILED TO INSTRUCT THE JURORS THAT THEY WERE TO DISREGARD APPELLANT’S RESTRAINTS IN REACHING THE PENALTY VERDICT Appellant was shackled in restraints throughoutthe entiretrial. Although appellant objected whenthetrial court imposed additional restraints following an incident in the courtroom,thetrial court did not believe that these restraints would be visible to the jury. However, during the penalty phase, the jury was made aware ofthe restraints through the testimony ofone of the prosecution’s witnesses. At this point, thetrial court was under a sua sponte duty to instruct appellant’s jury that the restraints should play norole in the penalty determination. Thetrial court’s failure to instruct the jury violated appellant’s rights to due process,a fair and impartial jury, and a reliable penalty verdict. (U.S. Const., 6th, 8th, & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 16, 17.) A. Factual Background Appellant and Ricardo were restrained throughout the entire trial. (See RT 92.) Following analtercation in the guilt phase,the trial court - imposed additionalrestraints upon appellant and his co-defendant, handcuffing them in the front to a “D”ring attachedto a security belt. (RT 1257.) Both defendants were concerned that the additional restraints would be visible to the jury (RT 1243, 1258-1260), butthe trial court stated thatit did not believe that the restraints would be visible. (RT 1262,) During the penaltyphaseof the trial, any question aboutthe jury’s awareness of the restraints was answered when Deputy Sheriff Angela Perez referred to the restraints during her testimony. Shetestified that she handcuffed appellant following an incidentin the jail. She compared the handcuffs she used with that being used in the courtroom: I walked overto handcuff him . . . with the chains in my hand. They’re similar — I don’t know what he’s wearing now,butits a handcuff on each end, andit — its got a chain, and I was holding him likethis. (RT 2792.) B. The Trial Court was Undera Sua Sponte Duty to Instruct the Jury that the Restraints Were to Play No Rolein the Penalty Determination After the trial court imposed additionalrestraints, appellant was concerned that they would bevisible to the jury. Even assuming thatthe restraints were not visible, the jury was made aware of them through the prosecution witness. The effect is the same asif the jury sawthe restraints, since it is the juror’s awarenessof the restraints that creates the potential for prejudice. (See People v. Cox (1991) 53 Cal.3d 618, 652 [finding that the jurors were not awareoftherestraints].) This Court has held that when jurors are aware of restraints during the guilt phase “the court shall instruct the jury sua sponte that such restraints should have no bearing on the determination of the defendant’s guilt.” (People v. Duran (1976) 16 Cal.3d 282, 292.) “The rationale behind the sua sponte instruction requirement imposed by the Duran court is to alleviate the potential prejudice arising from the need to havevisible, physical restraints on a defendantin the courtroom while in the jury’s presence.” (People v. Jacobs (1989) 210 Cal.App.3d 1135, 1141.) The same requirement must apply to the penalty phase. (See Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 748 [constitutional concerns about shacklingat trial apply to the penalty phase].) Indeed, the Supreme Court has characterized shackling as an “inherently prejudicial practice.” 129 (Holbrook v. Flynn (1986) 475 U.S. 560, 567.) Shackling is especially prejudicial in a capital trial. (Deck v. Missouri (May 23, 2005) 544 U.S. ____ [2005 WL 1200394].) Unlike the guilt phase, the penalty decision is a normative judgment, based not only on the nature of the crime butalso the personalhistory and the character of the defendant. (See Lockett v. Ohio (1978) 438 U.S. 586, 604.) Under these circumstances, “a jury might view the shackles as first hand evidence of future dangerousness and uncontrollable behavior which if unmanageable in the courtroom mayalso be unmanageable in prison, leaving death as a proper decision.” (Elledge v. Dugger (11th Cir. 1987) 823 F.2d 1439, 1450.) “Shackling sends a messageto the jury that in the court’s view, the defendantis so dangerous that he or she cannot be allowed to attend the proceedings, even with other security measures, without physical restraints.” (State v. Finch (1999) 137 Wash.2d 792, 864-865 [975 P.2d 967, 1009].) The prejudice to the defendantin such a situation is undeniable. (/bid; see also Willocks v. State (Tenn.Cr.App. 1976) 546 S.W.2d 819, 822 [sua sponte duty to instruct that shackling should in no way influence the determination of guilt or innocenceor the assessment of punishment].) Whenthe jury is aware of restraints, a sua sponte limiting instruction is necessary to satisfy the constitutional right to due process and a fair and impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 16; People v. Jackson (1993) 14 Cal.App.4th 1818, 1827-1830 [failure to give limiting instruction whenrestraints are visible implicates constitutional standards]; People v. Givan (1992) 4 CalApp.4th 1107, 1117 [citing constitutional basis for an instruction limiting the jury’s consideration of restraints].) A limiting instruction was also necessary under federal due process standards, since appellant hada liberty interest in 130 the application of the Duran rule. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346). Moreover, since shackling is inherently prejudicial, a limiting instruction was required in order to ensurethe reliability of the penalty verdict. (U.S. Const., 8th Amend.; Cal. Const., art. 1, §§ 17.) Accordingly, the trial court erred in failing to instruct the jurors to disregardthe restraints that it had imposed upon appellant. C. Reversal is Required The potential for prejudice was particularly significant in the penalty phase since the jury had to determine appellant’s guilt under factor (b) and to determine if death was the appropriate punishment. The jury’s awareness of appellant’s restraints weighed heavily in the normative penalty determination. Therestraints suggested that appellant wasparticularly dangerous,one of the worst of the worst. Shackling confirmed the prosecutor’s argument that appellant was particularly dangerous and disrespectful of the court. (See Arguments JIT, XIV.) Under these circumstances,thetrial court’s error in notinstructing the jury requires reversal. (See People v. Ashmus (1991) 54 Cal.3d 932, 965 [substantial error requires penalty reversal under either federal or state standards].) 131 XVI. THE TRIAL COURT’S PENALTY PHASE INSTRUCTIONS FAILED TO PROVIDE APPROPRIATE GUIDANCE TO THE JURY This Court hasstatedthattrial courts should expressly instruct the jury at the penalty phase about which of the instructions previously given continue to apply. (People v. Babbit (1988) 45 Cal.3d 660, 718, fn. 26.) Rather than do that in the present case, the trial court instructed appellant’s jury to disregardall guilt phase instructions. (RT 2883) Several of the guilt phase instructions were particularly important because the prosecutor introduced evidence under Penal Codesection 190.3, factor (b), to show that appellant had been involved in a battery upon a correctionalofficer. The jury needed to determine whether appellant was guilty of this crime, but on this important matter the jury wastold to disregard all relevant instructions. Thetrial court’s instruction violated appellant’s rights to due process, a properly instructed jury, and a reliable penalty verdict. (U.S. Const., 6th, 8th, & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 16, 17.) A. The Trial Court Improperly Failed to Define Reasonable Doubt Thetrial court instructed the jury that it could consider evidence that appellant had committed battery against a peace officer, but that the jury mustfirst be satisfied beyond a reasonable doubtthat appellant had committed the offense.“ (RT 2887.) However, the jurors were told to disregard the definition of reasonable doubt that had been given to them in the guilt phase. (RT 2883.) The definition of reasonable doubt is a term of 40. The trial court did not instruct the jury about the elements ofthis offense. 132 art that can be easily misunderstood by jurors. (See Victor v. Nebraska (1994) 511 U.S. 1, 23 [conc. opn. of Kennedy, J.]; People v. Brigham (1979) 25 Cal.3d 283, 315 [conc. opn. of Mosk, J.].) Accordingly, the trial court’s failure to define reasonable doubt at the time of the jury’s penalty phase deliberations was error. (See People v. Phillips (1997) 59 Cal.App.4th 952, 956; People v. Crawford (1997) 58 Cal.App.4th 815; People v. Elguera (1992) 8 Cal.App.4th 1214, 1219.) In People v. Elguera, supra, 8 Cal.App.4th 1214,the trial court instructed the jury using CALJIC 2.10, which explained that each fact supporting circumstantial evidence must be proved beyond a reasonable doubt. (/d. at p. 1218.) Thetrial court gave the definition of reasonable doubtat the start of voir dire, but did not define it during the full instructions. Moreover, the jury was not provided a written copy of the instruction. (/d. at pp. 1217-1218.) The court of appeal held that the trial court’s failure to instruct the jury on the definition of reasonable doubtat | the time that the full instructions were given was error. (Jd. at p. 1219.) It explained that failure to instruct the jury after presentation of the evidence did not convey the “centrality and importance”of the instruction. (/d. at p. 1222.) “If any phrase should be ringing in the juror’s ears as they leave the courtroom to begin deliberations,it is ‘proof beyond a reasonable doubt.’” (id. at p. 1223.) In particular, the court emphasized that the definition of reasonable doubtis crucial to the juror’s understanding of how the lawis to be applied. It noted that the definition is provided by statute (Pen. Code,§ 1096) and that departures from its language have repeatedly been deemed error. (Ibid., citing People v. Garcia (1975) 54 Cal.App.3d 61, 63-66.) It pointed out that “the jurors were unlikely to rememberthe exact definition read to them five and one-half hours earlier.” (Lbid.) 133 In People v. Payton (1992) 3 Cal.4th 1050, 1068, this Court held that failure to define reasonable doubt during the penalty phase ofa trial was not error becausethetrial court instructed the jury that most of the guilt phase instructions continued to apply. It found that “the specific reference to the guilt phase instructions, which were made availableto the jury, sufficed.” (Id. at pp. 1968-1069; see also People v. Nakahara (2003) 30 Cal.4th 705, 720 -721 [noerror in not defining reasonable doubt because trial court instructed that relevant guilt phase instructions still applied]; Peoplev. Kirkpatrick (1994) 7 Cal.4th 988, 1020 [reasonable juror would believethat ~ guilt phase generic instructions continue to apply].) Here, however,the jurors werespecifically told that the instructions given in the guilt phase of the trial did not apply. (RT 2883.) Accordingly, the jurors would not have used the guilt phase instructions during their deliberations. (See People v. Adcox (1988) 47 Cal.3d 207, 253[“it must be presumedthat the jurors observed and applied the instructions given them’’]). The penalty phaseofthe trial was far different than the guilt phase. The penalty phase beganfive days after the jury returned its guilt verdict. Unlike the guilt phase, the jurors were not provided with the elements of the offense. They weretold instead to disregardall of the guilt phase instructions. Under these circumstances,it is unlikely that the jurors would recall the exact language of the reasonable doubtinstruction and know that they should applyit to the factor (b) allegation. Accordingly,the trial court erred in not providing the jury with the definition of reasonable doubt during its instructions. 134 B. The Trial Court Failed to Instruct the Jury Howto Consider the Penalty Phase Evidence Sincethe trial court instructed the jury to disregard all guilt phase instructions, it had no guidance about how to considerthe evidence introduced in the penalty phase. This Court has held that a numberofinstructions are required in the determination of guilt. These include: * CALJIC 2.20 [Credibility of Witnesses]; see Pen. Code, § 1127 [jurors must be instructed sua sponte that they are the exclusive judges of the credibility of witnesses]; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884 [substance of instruction must be given sua sponte]; * CALSIC 2.70 [Confessions and Admissions Defined]; see People v. Mendoza (1987) 192 Cal.App.3d 667, 676, fn. 3 [sua sponte duty to give instruction whenevera pretrial statement of a defendant is received]; People v. Beagle (1972) 6 Cal.3d 441, 455-456 [sua sponte instruction]; * CALJIC 2.71 [Admission Defined]; see People v. Marks (1988) 45 Cal.3d 1335, 1346 [“If defendant’s oral admissionsare introduced into evidence,the trial court must sua sponte deliver the instruction”]. Asdiscussed above, the evidence introduced under Penal Code section 190.3 involved similar considerations to the guilt determination. The jurors had to be convinced beyond a reasonable doubt that appellant committed a criminal offense. (People v. Robertson (1981) 33 Cal.3d 21, 53.) The prosecutor introduced several witnesses in order to prove the allegation. Appellant’s statements were used against him. (See RT 2791 [appellantstated that he was not goingto go to the “hole”].) Accordingly, the trial court should havetold the jury that the guilty phase instructions about the consideration of evidence werestill relevant and continued to 135 apply in the penalty phase.*“ (See People v. Babbit, supra, 45 Cal.3d atp. 718, fn. 26.) . | C. Reversal is Required Appellant’s jury was told to disregard all previous instructions given in the guilt phase. Therefore, they had no definition of reasonable doubt and no guidance about how to consider the evidence. These matters, both individually and cumulatively, violated appellant’s constitutional rights and affected the very structure of appellant’s trial. | InArizona v. Fulminante (1991) 499 U.S. 279, 309-310, the United States Supreme Court explained that there are certain errors that affect the framework within whicha trial proceeds. These errors are defects in the trial mechanism that defy harmless error review. (/d. at p. 309.) They implicate fundamental protections provided a defendantin a criminal case. Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment maybe regarded as fundamentally fair. (bid.) Structural error requires reversal per se because it infects the integrity ofthe trial itself. (Brecht v. Abrahamson (1993) 507 U.S. 619, 629-630.) This Court shouldfind that thetrial court’s instruction for the 41. In People v. Livaditis (1992) 2 Cal.4th 759, 784,this Court held that CALJIC 2.71 was not required sua sponte in the penalty phase becausethe “distinction between mitigation and aggravation is often more blurred than the distinction between a statement that incriminates and one that does not.” However, this distinction was not present in this case, where appellant’s statement, “Fuck you, I ain’t going to the hole,” was introduced underfactor (b). (RT 2791.) As discussed above, this factor requires the jury to find appellant’s guilt beyond a reasonable doubt. Yet, on such an important matter, the jury was given absolutely no guidance about how to consider the evidence. 136 jury to completely disregard of all previousinstructions, without providing any guidance governing the jury’s fact-finding process in the penalty phase, is structural error that requires reversal. In particular, the United States Supreme Court has foundthat a constitutionally deficient definition of reasonable doubt cannot be harmless error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 [124 L.Ed.2d 182, 113 S.Ct. 2078].) Here, the failure to provide any instructions on the definition of proof beyond a reasonable doubt denied appellant of “one of the most elementary and fundamental rights provided by our system of justice.” (People v. Crawford, supra, 58 Cal.App.4th at p. 823.) In Sullivan,the trial court had given the jurors a definition of “reasonable doubt” that did not meet constitutional standards. (Sullivan v. Louisiana, supra, 508 U.S. 275.) The United States Supreme Court held that this was not subject to harmless error analysis. “It would notsatisfy the Sixth Amendmentto have a jury determinethat the defendant is probably guilty, and then leaveit up to the judge to determine ... whether heis guilty beyond a reasonable doubt.” (/d. at p. 278, emphasis in original.) The Court emphasized that without a proper definition of reasonable doubt, there has been nojury verdict within the meaning of the Sixth Amendment. There being no jury verdict of guilty-beyond-a-reasonable- doubt, the question of whether the same verdict of guilty- beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which the harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely havefound petitioner guilty beyond a reasonable doubt — notthat the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. (Id. at p. 280, emphasis in original.) 137 “The Sullivan decision is straightforward and uncompromising.” (People v. Crawford, supra, 58 Cal.App.4th at p. 821.) It applies not only to deficient definitions of reasonable doubt, but to cases where the court has omitted the definition in pre-deliberation instructions. ([bid.; People v. Phillips, supra, 59 Cal.App.4th at p. 957 [rejecting contention that argument of counsel and otherinstructions relating to reasonable doubt adequately informedthe jury so as to rendererror harmless].) Accordingly, this Court has recognized that Sullivan distinguished the structural error involved in the failure to give an adequate reasonable doubt instruction from other instructional errors, such as failure to instruct on an undisputed element of the crime. (People v. Flood (1998) 18 Cal.4th 470, 494.) The Court should similarly find that failure to define reasonable doubtas part of the penalty phase deliberations is structural error. Under California law, the jury must determine the truth of “other crime” evidence brought under factor (b) beyond a reasonable doubt. (People v. Robertson, (1981) 33 Cal.3d 21, 53.) This determination is required by due process and is especially important in the penalty phase ofa capitaltrial in order to guarantee that the Eighth Amendment’s requirement for heightened reliability has been met. (See Ford v. Wainwright (1986) 477 U.S. 399, 411, 414] [standard of reliability, accuracy, and fairness].) Without an adequate definition of reasonable doubt, no proper jury verdict has been reached that would permit harmless error review. (Sudlivan v. Louisiana, supra, 508 U.S.at p. 280.) Accordingly, the judgment in this case must be reversed. Even assumingthat the Court should conduct harmless error analysis, it must reverse the penalty verdict if there was any substantial error. (People v. Ashmus (1991) 54 Cal.3d 932, 965 [substantial error 138 requires penalty reversal under either federal or state standards].) Here, the trial court’s instructionsto completely disregard all previous instructions affected how the jury would consider the factor (b) evidence — the only aggravating factor outside the circumstancesof the crime that was charged against appellant. This Court should find that the complete lack ofall relevant instructions was a substantial error that requires reversal. // /I 139 XVII. THE FAILURE TO PROVIDE INTERCASE PROPORTIONALITY REVIEW VIOLATES APPELLANT’S CONSTITUTIONAL RIGHTS California does not provide for intercase proportionality review in capital cases, although it affords such review in noncapital criminalcases. As shownbelow,the failure to conduct intercase proportionality review of death sentences violates appellant’s Eighth Amendment and Fourteenth Amendmentrights to be protected from the arbitrary and capricious imposition of capital punishment. A. The Lack Of Intercase Proportionality Review Violates The Eighth AmendmentProtection Against The Arbitrary And Capricious Imposition Of The Death Penalty The Eighth Amendmentto the United States Constitution forbids punishments that are cruel and unusual. The jurisprudencethat has emerged applying this ban to the imposition of the death penalty has required that death judgments be proportionate and reliable. The notions of reliability and proportionality are closely related. Part of the requirement of ecereliability, in law as well as science,is “‘that the [aggravating and mitigating] reasons present in one case will reach a similar result to that 999reached undersimilar circumstances in another case.’” (Barclay v. Florida (1976) 463 U.S. 939, 954 (plurality opinion,alterations in original), quoting Proffitt v. Florida (1976) 428 U.S. 242, 251 (opinion of Stewart, Powell, and Stevens,JJ.).) | The United States Supreme Court has lauded comparative proportionality review as a method for helping to ensurereliability and proportionality in capital sentencing. Specifically, it has pointed to the proportionality reviews undertaken by the Georgia and Florida Supreme 140 Courts as methods for ensuring that the death penalty will not be imposed on a capriciously selected group of convicted defendants. (See Gregg v. Georgia (1976) 428 U.S. 153, 198; Proffitt v. Florida, supra, 428 U.S.at p. -258.) Thus, intercase proportionality review can be an importanttoolto ensure the constitutionality of a state’s death penalty scheme. Despite recognizing the value of intercase proportionality review,the United States Supreme Court has held that this type of review is not necessarily a requirementfor finding a state’s death penalty structure to be constitutional. In Pulley v. Harris (1984) 465 U.S.37, the United States Supreme Court ruled that the California capital sentencing scheme was not “so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review.” (Jd.at p. 51.) Accordingly, this Court has consistently held that intercase proportionality review is not constitutionally required. (See People v. Farnam (2002) 28 Cal.4th 107, 193.) As Justice Blackmun has observed, however, the holding in Pulley v. Harris was premised upon untested assumptions about the California death penalty scheme: [In Pulley v. Harris, 465 U.S. 37, 51 [], the Court’s conclusion that the California capital sentencing scheme was not “so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review” was basedin part on an understanding that the application of the relevant factors “‘provide[s] jury guidance andlessen[s] the chanceofarbitrary application of the death penalty,”” thereby “‘guarantee[ing] that the jury’s discretion will be guided andits consideration deliberate.’” Jd. at 53, [], quoting Harris v. Pulley, 692 F.2d 1189, 1194, 1195 (9th Cir. 1982). Aslitigation exposes the failure of these factors to guide the jury in making principled distinctions, the 141 Court will be well advised to reevaluate its decision in Pulley v. Harris. (Tuilaepa v. California (1994) 512 U.S. 967, 995 (dis. opn. of Blackmun, J.).) The time has come for Pulley v. Harris, to be reevaluated since, as this case illustrates, the California statutory schemefails to limit capital punishment to the “most atrocious” murders. (Furman v. Georgia (1972) 408 U.S. 238, 313 (conc. opn. of White, J.).) Comparative case review is the mostrational — if not the only — effective means by whichto ascertain whether a scheme as a whole is producing arbitrary results. Thus, the vast majority of the states that sanction capital punishment require comparative or intercase proportionality review. 42. See Ala. Code § 13A-5-53(b)(3) (1982); Conn. Gen. Stat. Ann. § 53a-46b(b)(3) (West 1993); Del. Code Ann.tit. 11, § 4209(g)(2) (1992); Ga. Code Ann. § 17-10-35(c)(3) (Harrison 1990); Idaho Code § 19- 2827(c)(3) (1987); Ky. Rev. Stat. Ann. § 532.075(3) (Michie 1985); La. Code Crim. Proc. Ann. art. 905.9.1(1)(c) (West 1984); Miss. Code Ann.§ 99-19-105(3)(c) (1993); Mont. Code Ann. § 46-18-310(3) (1993); Neb. Rev. Stat. §§ 29-2521.01, 29-2522(3) (1989); Nev. Rev. Stat. Ann § | 177.055 (d) (Michie 1992); N.H. Rev. Stat. Ann. § 630:5(X1)(c) (1992); N.M.Stat. Ann. § 31-20A-4(c)(4) (Michie 1990); N.C. Gen. Stat. § ISA- 2000(d)(2) (1983); Ohio Rev. Code Ann. § 2929.05(A) (Baldwin 1992); 42 Pa. Cons. Stat. Ann. § 971 1(h)(3)(iii) (1993); S.C. Code Ann. § 16-3- 25(c)(3) (Law. Co-op. 1985); S.D. Codified Laws Ann. § 23A-27A-12(3) (1988); Tenn. Code Ann. § 13-206(c)(1)(D) (1993); Va. Code Ann.§ 17.110.1C(2) (Michie 1988); Wash. Rev. Code Ann. § 10.95.130(2)(b) (West 1990); Wyo.Stat. § 6-2-103(d)(it1) (1988). Manystates have judicially instituted similar review. See State v. Dixon (Fla. 1973) 283 So.2d 1, 10; Alford v. State (Fla. 1975) 307 So.2d 433, 444 ; People v. Brownell (Ill. 1980) 404 N.E.2d 181, 197; Brewerv. State (Ind. 1980) 417 NE.2d 889, 899; State v. Pierre (Utah 1977) 572 P.2d 1338, 1345; Collins v. State (Ark. 1977) 548 S.W.2d 106, 121; State v. Simants (Neb. 1977) 250 N.W.2d 881, 890 [comparison with other capital 142 The capital sentencing schemein effect at the time of appellant’s trial was the type of schemethat the Pu//ey Court had in mind whenit said that “there could be a capital sentencing system so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review.” (Pulley v. Harris, supra, 465 U.S.at p. 51.) Penal Code section 190.2 immunizes few kindsoffirst degree murderers from death eligibility, and Penal Code section 190.3 provides little guidanceto juries in making the death-sentencing decision. In addition, the capital sentencing schemelacks other safeguards as discussed in Arguments XVI-XVIII, which are incorporated here. Thus, the statute fails to provide any method for ensuring that there will be some consistency from jury to jury when rendering capital sentencing verdicts. Consequently, defendants with a wide range ofrelative culpability are sentenced to death. California’s capital sentencing scheme does not operate in a manner that ensures consistency in penalty phase verdicts, nor does it operate in a mannerthat preventsarbitrariness in capital sentencing. Therefore, California is constitutionally compelled to provide appellant with intercase proportionality review. The absenceofintercase proportionality review violates appellant’s Eighth and Fourteenth Amendment right not to be arbitrarily and capriciously condemned to death, and requires the reversal of his death sentence. prosecutions where death has and has not been imposed]. 143 XVII. THE CALIFORNIA DEATH PENALTY STATUTE AND INSTRUCTIONS ARE UNCONSTITUTIONAL BECAUSE THEYFAIL TO SET OUT THE APPROPRIATE BURDEN OF PROOF The California death penalty statute fails to provide safeguards commonto other death penalty sentencing schemes to guard against the arbitrary imposition of death. Juries do not have to make written findings or achieve unanimity as to aggravating circumstances. As discussed herein, they do not have to find beyond a reasonable doubt that aggravating circumstancesare proved,that they outweigh the mitigating circumstances, or that death is the appropriate penalty. In fact, except as to the existence of other criminal activity and prior convictions, juries are not instructed on any burden of proofat all. Not only is intercase proportionality review not required; it is not permitted. (See Argument XVII.) Under the rationale that a decision to impose death is “moral” and “normative,” the fundamental components of reasoned decision-making that apply to all other parts of the law have been banished from the entire process of making the most consequential decision a juror can make — whetheror not to impose death. These omissions in the California capital-sentencing scheme,individually and collectively, run afoul of the Fifth, Sixth, Eighth, and Fourteenth Amendments. | A. The Statute and Instructions Unconstitutionally Fail to Assign to the State the Burden of Proving Beyond a Reasonable Doubt the Existence of an Aggravating Factor, That the Aggravating Factors Outweigh the Mitigating Factors, and That Death Is the Appropriate Penalty In California, before sentencing a person to death, the jury must be persuadedthat “the aggravating circumstances outweigh the mitigating 144 circumstances” (Penal Code, § 190.3) and that “death is the appropriate penalty underall the circumstances.” (People v. Brown (1985) 40 Cal.3d 512, 541, rev’d on other grounds, California v. Brown, 479 U.S. 538; see also People v. Cudjo (1993) 6 Cal.4th 585, 634.) Under the California scheme, however, neither the aggravating circumstancesnor the ultimate determination of whether to impose the death penalty need be proved to the jury’s satisfaction pursuantto any delineated burden of proof. The failure to assign a burden of proof renders the California death penalty scheme unconstitutional, and renders appellant’s death sentence unconstitutional and unreliable in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. This Court has consistently held that “neither the federal nor the state Constitution requires the jury to agree unanimously as to aggravating factors, or to find beyond a reasonable doubt that aggravating factors exist, [or] that they outweigh mitigating factors. ...” (People v. Fairbank (1997) 16 Cal.4th 1223, 1255; see also People v. Stanley (1995) 10 Cal.4th 764, 842; People v. Ghent, supra, 43 Cal.3d at pp.773-774.) However, this Court’s reasoning has been squarely rejected by the United States Supreme Court’s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, Ringv. Arizona (2002) 536 U.S. 584, and Blakely v. Washington (2004) ___—siUSS.. —_ [124 S.Ct. 2531].) 43. There are two exceptionsto this lack of a burden of proof. The special circumstances (Cal. Penal Code § 190.2) and the aggravating factor of unadjudicated violent criminalactivity (Cal. Penal Code § 190.3(b)) must be proved beyond a reasonable doubt. Appellant discusses the defects in Penal Codesection 190.3(b) below. 145 Apprendi considered a New Jersey state law that authorized a maximum sentence of ten years based on jury finding of guilt for second degree unlawful possession of a firearm. A related hate crimesstatute, however, allowed imposition of a longer sentence if the judge found, by a preponderanceof the evidence,that the defendant committed the crime with the purposeofintimidating an individual or group of individuals on the basis of race, color, gender, or other enumerated factors. In short, the New Jersey statute considered in Apprendi required a jury verdict on the elements of the underlying crime, but treated the racial motivation issue as a | sentencing factor for determination by the judge. (Apprendi v. New Jersey, supra, 530 U.S. at pp. 471-472.) The United States Supreme Court foundthat this sentencing scheme violated due process, reasoning that simply labeling a particular matter a “sentence enhancement”did not provide a “principled basis” for distinguishing between proofof facts necessary for conviction and punishmentwithin the normal sentencing range, on one hand,and those facts necessary to prove the additional allegation increasing the punishment beyond the maximum that the jury conviction itself would allow, on the other. (/d. at pp. 471-472.) The High Court held that a state may not impose a sentence greater than that authorized by the jury’s simple verdict of guilt unless the facts supporting an increased sentence (other than a prior conviction) are also submitted to the jury and proved beyond a reasonable doubt. (/d. at pp. 478.) In Ring v. Arizona, the Court applied Apprendi’s principlesin the context of capital sentencing requirements, seeing “no reason to differentiate capital crimes from all others in this regard.” (Ring v. Arizona, supra, 536 U.S.at p. 607.) The Court considered Arizona’s capital 146 . sentencing scheme, which authorized a judge sitting withouta jury to sentence a defendant to death if there was at least one aggravating circumstance and no mitigating circumstances sufficiently substantial to call for leniency. (/d. at p. 593.) Although the Court previously had upheld the Arizona scheme in Walton v. Arizona (1990) 497 U.S. 639, the Court found Walton to be irreconcilable with Apprendi. While Ring dealt specifically with statutory aggravating circumstances, the Court concluded that Apprendi wasfully applicableto all factual findings necessary to put a defendantto death, regardless of whether those findings are labeled sentencing factors or elements of the offense. (Ring v. Arizona, supra, 536 U.S.at p. 609.) The Court observed: “The rightto trial by jury guaranteed by the Sixth Amendmentwould be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendmentapplies to both.” (/d.) In Blakely, the Court considered the effect of Apprendi and Ring in a case where the sentencing judge was allowed to impose an “exceptional” sentence outside the normal range upon the finding of “substantial and compelling reasons.” (Blakely v. Washington, supra, 124 S.Ct. at p. 2535.) The State of Washingtonsetforth illustrative factors that included both aggravating and mitigating circumstances; one of the former was whether 44. Justice Scalia distinctively distilled the holding: “All facts essential to the imposition of the level of punishmentthat the defendant receives — whetherthe statute calls them elements of the offense, sentencing factors, or Mary Jane — must be madeby the jury beyond a reasonable doubt.” (Ring v. Arizona, supra, 536 U.S.at p. 610 (conc. opn. of Scalia, J.).) 147 the defendant’s conduct manifested “deliberate cruelty” to the victim. (Ibid.) The Supreme Court ruled that this procedure was invalid becauseit did not comply with the night to a jury trial. (/d. at p. 2543.) In reaching this holding, the Supreme Court stated that the governing rule since Apprendiis that other than a prior conviction, any fact that increases the penalty of the crime beyondthe statutory maximum must be submitted to the jury and found beyond a reasonable doubt; “the relevant ‘statutory maximum’is not the maximum sentence a judge may impose afterfinding additional facts, but the maximum he may impose without any additional findings.” (Blakely v. Washington, supra, 124 S.Ct. at p. 2537, | emphasis in original.) Twenty-six states require that factors relied on to impose death in a penalty phase mustbe proven beyond a reasonable doubtby the prosecution, and three additional states have related provisions.“ Only. 45. See Ala. Code, § 13A-5-45(e) (1975); Ark. Code Ann., § 5-4- 603 (Michie 1987); Colo. Rev. Stat. Ann., § 16-11-104-1.3-1201(1)(d) (West 2002); Del. Code Ann.tit. 11, § 4209(c)(3)a.1. (2002); Ga. Code Ann., § 17-10-30(c) (Harrison 1990); Idaho Code, § 19-2515(3)(b) (2003); Ill. Ann. Stat. ch. 38, para. 9-1(f) (Smith-Hurd 1992); Ind. Code Ann., §§ 35-50-2-9(a), (e) (West 1992); Ky. Rev. Stat. Ann., § 532.025(3) (Michie 1992); La. Code Crim. Proc. Ann.art. 905.3 (West 1984); Md. Ann. Code art. 27, §§ 413(d), (f), (g) (1957); Miss. Code Ann., § 99-19-103 (1993); Neb. Rev.Stat., § 29-2520(4)(f) (2002) ; Nev. Rev. Stat. Ann., § 175.554(3) (Michie 1992); N.J.S.A. 2C:11-3c(2)(a); N.M.Stat. Ann., § 31-20A-3 (Michie 1990); Ohio Rev. Code, § 2929.04 (Page’s 1993); Okla. Stat. Ann. tit. 21, § 701.11 (West 1993); 42 Pa. Cons. Stat. Ann., § 9711(c)(1)(@i) (1982); S.C. Code Ann., §§ 16-3-20(A), (C) (Law. Co-op (1992); S.D. Codified Laws Ann., § 23A-27A-5 (1988); Tenn. Code Ann.§, 39-13- 204(f) (1991); Tex. Crim. Proc. Code Ann., § 37.071(c) (West 1993); State v. Pierre (Utah 1977) 572 P.2d 1338, 1348; Va. Code Ann., § 19.2- 264.4(C) (Michie 1990); Wyo.Stat., §§ 6-2-102(d)(G)(A), (e)() (1992). Washington has a related requirementthat, before making a death 148 California and four other states (Florida, Missouri, Montana, and New Hampshire) fail to statutorily address the matter. California law as interpreted by this Court does not require that a reasonable doubt standard be used during any part of the penalty phase of a defendant’s trial, except as to proof of prior criminality relied upon as an aggravating circumstance — and even in that context the required finding need not be unanimous. (People v. Fairbank, supra, 16 Cal.4th at p. 1255; see also People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are “moral and ... . not factual,” and therefore not “susceptible to a burden-of-proof quantification”’}.) California statutory law andjury instructions, however, do require fact-finding before the decision to impose death or a lesser sentenceis finally made. As a prerequisite to the imposition of the death penalty, section 190.3 requires the “trier of fact” to find that at least one aggravating factor exists and that such aggravating factor (or factors) substantially judgment, the jury must make a finding beyond a reasonable doubtthat no mitigating circumstances exist sufficient to warrant leniency. (Wash. Rev. Code Ann. § 10.95.060(4) (West 1990).) And Arizona and Connecticut require that the prosecution prove the existence of penalty phase aggravating factors, but specify no burden. (Ariz. Rev. Stat. Ann. § 13-703 (1989); Conn. Gen. Stat. Ann. § 53a-46a(c) (West 1985).) On remand in the Ring case, the Arizona Supreme Court found that both the existence of one or more aggravating circumstances and the fact that aggravation substantially outweighs mitigation were factual findings that must be made by a jury beyond a reasonable doubt. State v. Ring (Az. 2003) 65 P.3d 915.) 149 outweigh any andall mitigating factors“ Asset forth in California’s “principal sentencing instruction” (People v. Farnam (2002) 28 Cal.4th 107, 177), which wasread to appellant’s jury, “an aggravating factor 1s any fact, condition or event attending the commission of a crime which increasesits guilt or enormity, or adds to its injurious consequences which is above and beyond the elements of the crimeitself.” (CALJIC No.8.88.) Thus, before the process of weighing aggravating factors against mitigating factors can begin, the presence of one or more aggravating factors must be found by the jury. And before the decision whetheror not to impose death can be made, the jury mustfind that aggravating factors substantially outweigh mitigating factors. These factual determinations are essential prerequisites to death-eligibility, but do not mean that death 1s the 46. InJohnson v. State (Nev. 2002) 59 P.3d 450, the Nevada Supreme Court found that under a statute similar to California’s, the requirement that aggravating factors outweigh mitigating factors was a factual determination, and not merely discretionary weighing, and therefore “even though Ring expressly abstained from ruling on any “Sixth Amendment claim with respect to mitigating circumstances,’(fn. omitted) weconclude that Ring requires a jury to makethis finding as well: ‘Ifa State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.’” (/d. at p. 460.) 47. This Court has acknowledgedthat fact-finding is part of a sentencing jury’s responsibility, even if not the greatest part; its role “is not merely to find facts, but also — and most important — to render an individualized, normative determination about the penalty appropriate for the particular defendant... .” (People v. Brown, supra, 46 Cal.3d at p. 448.) 150 inevitable verdict; the jury can still reject death as the appropnate punishment notwithstanding these factual findings. In People v. Anderson (2001) 25 Cal.4th 543, 589, this Court held that since the maximum penalty for one convicted offirst degree murder with a special circumstance is death (See section 190.2(a)), Apprendi does not apply. After Ring, the Court repeated the same analysis. (See e.g., People v. Prieto (2003) 30 Cal.4th 226, 263 [“Because any finding of aggravating factors during the penalty phase does not ‘increase the penalty for a crime beyondthe prescribed statutory maximum?’[citation omitted], Ring imposes no new constitutional requirements on California’s penalty phase proceedings”]; see also People v. Snow (2003) 30 Cal.4th 43.) This holding in the face ofthe United States Supreme Court’s recent decisions is simply no longer tenable. Read together, the Apprendiline of cases render the weighing of aggravating circumstances against mitigating circumstances“the functional equivalent of an element of [capital murder].” (See Apprendi v. New Jersey, supra, 530 U.S. at p. 494.) As stated in Ring, “If a State makes an increasein a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.” (Ring v. Arizona, supra, 536 U.S. at p. 586.) As Justice Breyer, explaining the holding in Blakely, points out, the Court madeit clear that “a jury mustfind, not only the facts that make up the crime of which the offender is charged, but also 48. This Court has held that despite the “shall impose” language of section 190.3, even if the jurors determine that aggravating factors outweigh mitigating factors, they maystill impose a sentenceoflife in prison. (People v. Allen, supra, 42 Cal.3d at pp. 1276-1277; People v. - Brown, supra, 40 Cal.3d at p. 541.) 151 (all punishment-increasing) facts about the way in which the offender carried outthat crime.” (Blakely v. Washington, supra, 124 S.Ct. at p. 2551, (dis. opn. of Breyer, J.), emphasis in original.) Thus,as stated in Apprendi, “the relevant inquiry is one not of form, but of effect — does the required finding expose the defendantto a greater punishmentthan authorized bythe jury’s guilt verdict?” (Apprendi v. New Jersey, supra, 530 U.S. at p. 494.) The answerin the California capital sentencing schemeis “yes.” In this state, in order to elevate the punishment from life imprisonment to the death penalty, specific findings must be made that (1) aggravation exists, (2) aggravation outweighs mitigation, and (3) death is the appropriate punishment underall the circumstances. Underthe California sentencing scheme,neither the jury nor the court may imposethe death penalty based solely upon a verdictof first degree murder with special circumstances. Whileit is true that a finding of a special circumstance, in addition to a conviction offirst degree murder, carries a maximum sentenceof death (Cal. Pen. Code § 190.2), the statute “authorizes a maximum punishmentof death only in a formal sense.” (Ring v. Arizona, supra, 536 U.S.at p. 604, quoting Apprendi v. New Jersey, supra, 530 U.S.at p. 541, (dis. opn. of O’Connor, J.).) In order to impose the increased punishmentof death, the jury must make additional findingsat the penalty phase — that is, a finding of at least one aggravating factor plus findings that the aggravating factor or factors outweigh any mitigating factors and that death is appropriate. These additional factual findings oeeincrease the punishment beyond “‘that authorized by the jury’s guilty verdict’” (Ring v. Arizona, supra, 536 U.S.at p. 604 (quoting Apprendiv. New Jersey, supra, 530 U.S. at p. 494), and are “essential to the imposition of the level of punishmentthat the defendant receives.” (Ringv. Arizona, 152 supra, 536 U.S.at p. 610 (conc. opn. of Scalia, J.).) They thus trigger the requirements of Blakely-Ring-Apprendithat the jury be instructed to find the factors and determinetheir weight beyond a reasonable doubt. This Court has recognized that fact-finding is one of the functions of the sentencer; California statutory law, jury instructions, and the Court’s previous decisions leave no doubtthat facts must be found before the death penalty may be considered. The Court held that Ring does not apply, however, because the facts found at the penalty phase are “facts which bear upon, but do not necessarily determine, which of these two alternative | penalties is appropriate.” (People v. Snow, supra, 30 Cal.4th at p.126,fn. 32, citing People v. Anderson, supra, 25 Cal.4th at pp. 589-590, fn.14.) The Court has repeatedly soughttoreject Ring’s applicability by comparing the capital sentencing process in California to “‘a sentencing court’s traditionally discretionary decision to impose oneprison sentence rather _ than another.” (People v. Prieto, supra, 30 Cal.4th at p. 275; Peoplev. Snow, supra, 30 Cal.4th at p. 126, fn. 32.) The distinction between facts that “bear on” the penalty determination and facts that “necessarily determine”the penalty is a distinction without a difference. There are no facts in Arizona or California that are “necessarily determinative” of a sentence — in both states, the sentenceris free to impose a sentenceof less than death regardless of the aggravating circumstances. In both states, any one of a numberof possible aggravating factors may be sufficient to impose death — no single specific factor must be found in Arizona or California. And, in both states, the absence of an aggravating circumstance precludes entirely the imposition of a death sentence. And Blakely makesclearthat, to the dismay of the dissent, the “traditional discretion” of a sentencing judge to impose a 153 harsher term based on facts not found by the jury or admitted by the defendant does not comport with the federal constitution. In Prieto, the Court summarized California’s penalty phase procedureas follows: -Thus, in the penalty phase, the jury merely weighs the factors enumerated in section 190.3 and determines ‘whether a defendanteligible for the death penalty should in fact receive - that sentence.’ (Tuilaepa v. California, supra, 512 U.S.at p. 972). No single factor therefore determines which penalty — death orlife without the possibility of parole — is appropriate. (People v. Prieto, supra, 30 Cal.4th at p. 263 (emphasis added).) This summary omits the fact that death is simply not an option unless and until at least one aggravating circumstance is found to have occurred or be present — otherwise, there is nothing to put on the scale in support of a death sentence. (See People v. Duncan (1991) 53 Cal.3d 955, 977-978.) A California jury must first decide whether any aggravating circumstances, as defined by section 190.3 and the standard penalty phase instructions, exist in the case before it. Only after this initial factual determination has been made can the jury move on to “merely” weigh those . factors against the proffered mitigation. As the Arizona Supreme Court has found, this weighing processis the functional equivalent of an element of capital murder, and is therefore subject to the protections of the Sixth Amendment. (See State v. Ring, supra, 65 P.3d at p. 943 [Neither a judge, _ underthe supersededstatutes, nor the jury, under the new statutes, can imposethe death penalty unless that entity concludes that the mitigating factors are not sufficiently substantial to call for leniency”); accord, State v. 154 Whitfield (Mo. 2003) 107 S.W.3d 253; Woldt v. People (Colo. 2003) 64 P.3d 256; Johnson v. State (Nev. 2002) 59 P.3d 450.) It is true that a sentencer’s finding that the aggravating factors substantially outweigh the mitigating factors involves a mix of factual and normative elements, but this does not makethis finding any less subject to the Sixth and Fourteenth Amendmentprotections applied in Apprendi, Ring, and Blakely. In Blakely itself the State of Washington argued that Apprendi and Ring should not apply becausethe statutorily enumerated grounds for an upward sentencing departure wereillustrative only, not exhaustive, and henceleft the sentencing judge free to identify and find an aggravating factor on his own — a finding which, appellant submits, must inevitably involve both normative (“what would make this crime worse”) and factual | (“what happened”) elements. The high court rejected the state’s contention, finding Ring and Apprendifully applicable even wherethe sentenceris authorized to makethis sort of mixed normative/factual finding, as long as the finding is a prerequisite to an elevated sentence. (Blakely, supra, 124 S. Ct. at p. 2538.) Thus, under Apprendi, Ring, and Blakely, whether the finding is a Washingtonstate sentencer’s discernment of a non-enumerated aggravatingfactor or a California sentencer’s determination that the aggravating factors substantially outweigh the mitigating factors, the 49. See also Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role ofthe Jury in Capital Sentencing (2003) 54 Ala L. Rev. 1091, 1126-1127 (noting thatall features that the Supreme Court regarded in Ring as significant apply not only to the finding that an aggravating circumstance is present but also to whether mitigating circumstancesare sufficiently substantial to call for leniency since both findings are essential predicates for a sentence of death). 155 finding must be made by a jury and must be made beyonda reasonable doubt. The appropriate questions regarding the Sixth Amendment’s application to California’s penalty phase, according to Apprendi, Ring and Blakely are: (1) What is the maximum sentence that could be imposed without a finding of one or more aggravating circumstancesas defined in CALJIC 8.88? The maximum sentence would be life without possibility of parole; (2) Whatis the maximum sentence that could be imposed during the penalty phase based on findings that one or more aggravating circumstances are present? The maximumsentence, without any additional findings, namely that aggravating circumstances substantially outweigh mitigating circumstances, would be life without possibility of parole. Finally, this Court has relied on the undeniable fact that “death is different” as a basis for withholding rather than extending procedural protections. (People v. Prieto, supra, 30 Cal.4th at p. 263.) In Ring, Arizona also soughtto justify the lack of a unanimousjury finding beyond a reasonable doubt of aggravating circumstances by arguing that “death is different.” This effort to turn the high court’s recognitionof the irrevocable nature of the death penalty to its advantage was rebuffed. Apart from the Eighth Amendmentprovenance of aggravating factors, Arizona presents “no specific reason for excepting capital defendants from the constitutional protections. .. extend[ed] to defendants generally, and noneis readily apparent.” [Citation.] The notion “that the Eighth Amendment's restriction on state legislature's ability to define capital crimes should be compensated for by permitting States more leeway underthe Fifth and Sixth Amendments in proving an aggravating fact necessary to a capital sentence... is without precedent in our constitutional jurisprudence.” 156 (Ring v. Arizona, supra, 536 US.at p. 606 (quoting with approval Apprendi v. New Jersey, 530 U.S. at 539 (dis. opn. of O’Connor,J.)).) Nogreaterinterest is ever at stake than in the penalty phase of a capital case. (Monge v. California, supra, 524 U.S.at p. 732 [“the death penalty is unique in its severity andits finality”].) As the high court stated in Ring: Capital defendants, no less than noncapital defendants, . .. are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.... The right to trial by jury guaranteed by the Sixth Amendment would besenselessly diminishedifit encompassedthe fact-finding necessary to increase a defendant’s sentence by two years, but not the fact-finding necessary to put him.to death. (Ring v. Arizona, supra, 536 U.S.at p. 589.) Thefinal step of California’s capital sentencing procedure, the decision whether to impose death orlife, is a moral and a normative one. This Court errs, however,in using this fact to eliminate procedural | protections that would render the decision a rational and reliable one and to allow the findings that are prerequisite to the determination to be uncertain, undefined, and subject to dispute not only as to their significance, but as to their accuracy. This Court’s refusal to accept the applicability of Ring to any part of California’s penalty phase violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. 157 B. The State and Federal Constitution Require That ‘The Jury Be Instructed That They May Impose a Sentence of Death Only If They Are Persuaded Beyond a Reasonable Doubt That The Aggravating Factors Outweigh the Mitigating Factors And That Death Is The Appropriate Penalty 1. Factual determinations The outcomeofajudicial proceeding necessarily depends on an appraisal of the facts. “[T]he procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more importanttherights at stake the more important mustbe the procedural safeguards surrounding those rights.” (Speiser v. Randall (1958) 357 U.S. 513, 520-521.) The primary procedural safeguard implanted in the criminal justice system relative to fact assessmentis the allocation and degree of the burden of proof. The burden of proof represents the obligation of a party to establish a particular degree ofbelief as to the contention soughtto be proved. In criminal cases the burdenis rooted in the Due Process Clauseof the Fifth and Fourteenth Amendment. (Jn re Winship, supra, 397 U.S.at p. 364.) In capital cases “the sentencing process, as well as the trialitself, mustsatisfy the requirements of the Due Process Clause.” (Gardnerv. Florida, supra, 430 U.S.at p. 358; see also Presnell v. Georgia (1978) 439 U.S. 14.) Aside from the question of the applicability of the Sixth Amendmentto California’s penalty phase proceedings, the burden of proof for factual determinations during the penalty phase of a capital trial, when life is at stake, must be beyond a reasonable doubt. This is required by both the Due Process Clause of the Fourteenth Amendmentand the Eighth Amendment. 2. Imposition of life or death The requirements of due process relative to the burden of persuasion generally depend uponthe significance of whatis at stake and the social goal of reducing the likelihood of erroneousresults. (In re Winship, supra, 397 U.S. at pp. 363-364; see also Addington v. Texas (1979) 441 U.S. 418, 423.) The allocation of a burden of persuasion symbolizes to society in general and the jury in particular the consequences of whatis to be decided. In this sense,it reflects a belief that the more serious the consequencesof the decision being made, the greater the necessity that the decision-maker reach “a subjective state of certitude” that the decision is appropriate. (/n re Winship, supra, 397 US. at p. 364.) Selection of a constitutionally appropriate burden of persuasion is accomplished by weighing “three distinct factors... the private interests affected by the proceeding; the risk of error created by the State’s chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure.” (Santosky v. Kramer (1982) 455 U.S. 743, 755; see also Matthewsv. Eldridge (1976) 424 U.S. 319, 334-335.) Lookingat the “private interests affected by the proceeding,”it is impossible to conceive of an interest more significant than humanlife. If personalliberty is “an interest of transcending value” (Speiser v. Randall, supra, 375 U.S.at p. 525), how much more transcendentis humanlife itself. Far less valued interests are protected by the requirementofproof beyond a reasonable doubt before they may be extinguished. (See /n re Winship, supra, 397 U.S. 364 [adjudication ofjuvenile delinquency]; People v. Feagley (1975) 14 Cal.3d 338 [commitment as mentally disordered sex offender]; People v. Burnick (1975) 14 Cal.3d 306 [same]; People v. Thomas (1977) 19 Cal.3d 630 [commitment as narcotic addict]; 159 Conservatorship ofRoulet (1979) 23 Cal.3d 219 [appointment of conservator]. The decision to take a person’s life must be made under no less demanding a standard. Due process mandatesthat our social commitmentto the sanctity oflife and the dignity of the individual be incorporated into the decision-making process by imposing upon the State the burden to prove beyond a reasonable doubtthat death is appropriate. Asto the “risk of error created by the State’s chosen procedure,” Santosky v. Kramer, supra, 455 U.S. at p. 755, the United States Supreme Court reasoned: [I]n any given proceeding, the minimum standardofproof tolerated by the due process requirementreflects not only the weight of the private and public interests affected, but also a societal judgment about howtherisk of error should be distributed betweenthe litigants: ... When the State brings a criminal action to deny a defendant liberty orlife, . . . “the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” [citation] The stringency of the “beyond a reasonable doubt” standard bespeaks the ‘weight and gravity’ of the private interest affected [citation], society’s interest in avoiding erroneous convictions, and a judgmentthat those interests together require that “society impos[e] almostthe entire risk of error uponitself.” (Santosky v. Kentucky, supra, 455 U.S. at p. 755 (quoting Addingtonv. Texas, supra, 441 U.S.at pp. 423, 424, 427).) Moreover, there is substantial room for error in California’s procedures for deciding between life and death. The penalty proceedings are muchlike the child neglect proceedings dealt with in Santosky. they involve “imprecise substantive standards that leave determinations 160 unusually open to the subjective values ofthe [jury].” (Santosky v. Kentucky, supra, 455 U.S.at p. 763.) Nevertheless, imposition of a burden of proof beyond a reasonable doubt canbeeffective in reducing this risk of error, since that standard has long proven its worth as “a prime instrument for reducing the risk of convictions resting on factual error.” (dn re Winship, supra, 397 U.S.at p. 363.) The final Santosky benchmark,“the countervailing governmental interest supporting use of the challenged procedure,” also calls for imposition of a reasonable doubt standard. Adoption of that standard would not deprive the State of the power to impose capital punishment, it would merely serve to maximize “reliability in the determination that deathis the appropriate punishmentin a specific case.” (Woodson v. North Carolina, supra, 428 U.S. at p. 305.) The needforreliability is especially compelling in capital cases. (Beck v. Alabama, supra, 447 U.S. at pp. 637-638.) No greaterinterest is everat stake. (See Mongev. California, supra, 524 U.S. at p. 732.) In Monge, the Supreme Court expressly applied the Santosky rationale for the beyond-a-reasonable-doubt burden of proof requirementto capital sentencing proceedings: “[/]n a capital sentencingproceeding, as in a criminaltrial, the interests of the defendant[are] of such magnitude that. . . they have been protected by standards of proof designedto exclude as nearly as possible the likelihood of an erroneous judgment.” (Mongev. California, supra, 524 U.S. at p. 732 , quotations omitted, emphasis added.) The sentencer of a person facing the death penalty is required by the due process and Eighth Amendmentconstitutional guarantees to be convinced beyond a reasonable doubtthat not only are the factual basesfor its decision are true, but that death is the appropriate sentence. 16] ~ This Court has long held that the penalty determination in a capital case in California is a moral and normative decision, as opposedto a purely factual one. (See e.g., People v. Griffin (2004) 33 Cal.4th 536, 595.) Other states, however, have ruled that this sort of moral and normative decision is not inconsistent with a standard based on proof beyond a reasonable doubt. This is because a reasonable doubt standard focuses on the degree of certainty needed to reach the determination, which is something not only applicable but particularly appropriate to a moral and normative penalty decision. As the Connecticut Supreme Court recently explained when rejecting an argumentthat the jury determination in the weighing process 1s amoral judgmentinconsistent with a reasonable doubt standard: Wedisagree with the dissent of Sullivan, C.J., suggesting that, because the jury’s determination is a moral judgment,it is somehow inconsistent to assign a burden of persuasionto that determination. The dissent’s contention relies onits understanding of the reasonable doubt standard as a . quantitative evaluation of the evidence. We havealready explained in this opinion that the traditional meaning of the reasonable doubt standard focuses, not on a quantification of the evidence, but on the degree of certainty of the fact finder or, in this case, the sentencer. Therefore, the nature of the jury’s determination as a moral judgment does not render the application of the reasonable doubt standard to that determination inconsistent or confusing. On the contrary,it makes sense, and, indeed, is quite common, when making a moral determination, to assign a degree of certainty to that judgment. Put another way, the notion of a particular level of certainty is not mconsistent with the process of arriving at a moral judgment; our conclusion simply assigns the law’s most demanding level of certainty to the jury’s most demanding and irrevocable moral judgment. (State v. Rizzo (2003) 266 Conn. 171, 238, fn. 37.) In sum,the needforreliability is especially compelling in capital cases. (Beck v. Alabama, supra, 447 U.S:at pp. 637-638; Monge v. California, supra, 524 U.S.at p. 732.) Under the Eighth and Fourteenth Amendments, asentence of death may not be imposedunless the sentencer is convinced beyond a reasonable doubtnot only that the factual bases for its decision are true, but that death is the appropriate sentence. C. The Sixth, Eighth, And Fourteenth Amendments Require That The State Bear Some Burden Of Persuasion At The Penalty Phase In addition to failing to impose a reasonable doubt standard on the prosecution, the penalty phase instructions failed to assign any burden of persuasion regarding the ultimate penalty phase determinations the jury had to make. Although this Court has recognized that “penalty phase evidence mayraise disputed factual issues” (People v. Superior Court (Mitchell) (1993) 5 Cal.4th 1229, 1236), it also has held that a burden of persuasionat the penalty phase is inappropriate given the normative nature of the determinations to be made. (See People v. Hayes (1990) 52 Cal.3d 577, 643.) Appellant urges this Court to reconsider that ruling becauseitis constitutionally unacceptable under the Sixth, Eighth, and Fourteenth Amendments. First, allocation of a burden ofproofis constitutionally necessary to’ avoid the arbitrary and inconsistent application of the ultimate penalty of death. “Capital punishment must be imposedfairly, and with reasonable consistency, or not at all.” (Eddings v. Oklahoma, supra, 455 U.S.at p. 112.) With no standard of proofarticulated, there is a reasonable likelihood that different juries will impose different standards of proof in deciding whether to impose a sentence of death. Whobears the burden of persuasion as to the sentencing determination also will vary from case to case. Such 163 arbitrariness undermines the requirement that the sentencing scheme provide a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many in whichit is not. Thus, even if it were not constitutionally necessary to place such a heightened burden of persuasion on the prosecution as reasonable doubt, some burdenofproof mustbearticulated, if only to ensure that juries faced with similar evidence will return similar verdicts, that the death penalty is evenhandedly applied from case to case, and that capital defendants are treated equally from case tocase. It is unacceptable under the Eighth and Fourteenth Amendments that, in cases where the aggravating and mitigating evidenceis balanced, one defendant should live and another die simply because one jury assigns the burden of proof and persuasionto the state while anotherassignsit to the accused, or because one juror applied a lower standard and found in favor of the state and another applied a higher standard and foundin favor of the defendant. (See Proffitt v Florida, supra, 428 U.S.at p. 260 [punishmentshould not be “wanton”or “freakish”]; Mills v. Maryland, supra, 486 U.S.at p. 374 [impermissible for punishment to be reached by “height of arbitrariness”’].) Second, while the schemesets forth no burden for the prosecution, the prosecution obviously has some burden to show that the aggravating factors are greater than the mitigating factors, as a death sentence may not be imposed simply by virtue ofthe fact that the jury has found the defendant guilty of murder and has found at least one special circumstance true. The jury must imposea sentence oflife without possibility of parole if the mitigating factors outweigh the aggravating circumstances (See Cal. Penal Code, § 190.3), and may impose sucha sentence even if no mitigating 164 evidence waspresented. (See People v. Duncan (1991) 53 Cal.3d 955, 979.) In addition, the statutory language suggests the existence of some sort of finding that must be “proved” by the prosecution and reviewed by the trial court. Penal Code Section 190.4, subdivision (e), requiresthetrial Judge to “review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstancesreferred to in Section 190.3,” and to “make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.” A fact could not be established — 1.e., a fact finder could not make a finding — without imposing somesort of burden onthe parties presenting the evidence upon whichthe finding is based. The failure to inform the jury of how to makefactual findings is inexplicable. Third, in noncapital cases, the state of California does imposeon the prosecution the burden to persuade the sentencerthat the defendant should receive the most severe sentence possible. (See Cal. Rules of Court, Rule 420(b) [existence of aggravating circumstances necessary for imposition of upper term must be proved by preponderanceof evidence]; Evid. Code § 520 [“The party claiming that a person is guilty of crime or wrongdoing has the burden of proof on that issue”].) There is no statute to the contrary. In any capital case, any aggravating factor will relate to wrongdoing; those that are not themselves wrongdoing (such as, for example, age whenit is counted as a factor in aggravation) are still deemed to aggravate other wrongdoingby a defendant. Evidence Code section 520is a legitimate state expectation in adjudication andis thus constitutionally protected under the Fourteenth Amendment. (Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) 165 The failure to articulate a proper burden of proofis constitutional error underthe Sixth, Eighth, and Fourteenth Amendments. In addition, as explained in the preceding argument, to provide greater protection to noncapital than to capital defendants violates the due process, equal protection, and cruel and unusual punishmentclauses of the Eighth and Fourteenth Amendments. (See e.g. Mills v. Maryland, supra, 486 U.S.at p. 374; Myers v. Yist (9th Cir. 1990) 897 F.2d 417, 421.) D. The Instructions Violated The Sixth, Eighth And Fourteenth Amendments To The United States Constitution By Failing To Require Juror Unanimity On Aggravating Factors The jury was not instructed that its findings on aggravating circumstances needed to be unanimous. Thetrial court failed to require even that a stmple majority of the jurors agree on any particular aggravating factor, let alone agree that any particular combination of aggravating factors warranted a death sentence. As a result, the jurors in this case were not required to deliberate at all on critical factual issues. Indeed, there is no reason to believe that the jury imposed the death sentence in this case based on any form of agreement, other than the general agreementthat the aggravating factors were so substantial in relation to the mitigating factors that death was warranted. Asto the reason for imposing death, a single . juror may have relied on evidence that only he or she believed existed in imposing appellant’s death sentence. Such a processleads to a chaotic and unconstitutional penalty verdict. (See e.g., Schadv. Arizona (1991) 501 US. 624, 632-633 (plur. opn. of Souter, J.).) Appellant recognizes thatthis Court has held that when an accused’s life is at stake during the penalty phase, “there is no constitutional requirementfor the jury to reach unanimous agreement on the 166 circumstances in aggravation that support its verdict.” (See Peoplev. Bacigalupo, supra, | Cal.4th at p. 147; see also People v. Taylor (1990) 52 Cal.3d 719, 749 [“unanimity with respect to aggravating factors is not | required bystatute or as a constitutional procedural safeguard”].) Nevertheless, appellant asserts that the failure to require unanimity as to aggravating circumstances encouraged the jurorsto act in anarbitrary, capricious and unreviewable manner, slanting the sentencing process in favor of execution. The absence of a unanimity requirement1s inconsistent with the Sixth Amendment jury trial guarantee, the Eighth Amendment requirement of enhanced reliability in capital cases, and the Fourteenth Amendment requirements of due process and equal protection. (See Ballew v. Georgia (1978) 435 U.S. 223, 232-234; Woodson v. North Carolina, supra, 428 U.S.at p. 305.)°% With respect to the Sixth Amendment argument, this Court’s reasoning and decision in Bacigalupo — particularly its reliance on Hildwin v. Florida (1989) 490 U.S. 638, 640 — should be reconsidered. In Hildwin, the Supreme Court noted that the Sixth Amendmentprovides no nght to. jury sentencing in capital cases, and held that “the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made bythe jury.” (/d. at pp. 640-641.) Thisis not, however, the same as holding that unanimity is not required. Moreover, the Supreme Court’s holding in Ring makes the reasoning in Hildwin 50. The absenceofhistorical authority to support such a practice makesit further violative of the Sixth, Eighth, and Fourteenth Amendments. (See e.g., Murray ’s Lessee (1855) 59 U.S. (18 How.) 272; Griffin v. United States (1991) 502 U.S. 46, 51.) 167 questionable, and undercuts the constitutional validity of this Court’sruling in Bacigalupo“ Applying the Ring reasoning here, jury unanimity is required under the overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. “Jury unanimity... is an accepted,vital mechanism to ensure that real and full deliberation occurs in the jury room,andthatthe jury’s ultimate decision will reflect the conscienceof the community.” (McKoy v. North Carolina, supra, 494 U.S.at p. 452 (conc. opn. of Kennedy, J.).) Indeed, the Supreme Courthas held that the verdict of even a six-person jury in a non-petty criminal case must be unanimousto “preserve - the substance ofthe jury trial right and assurethe reliability of its verdict.” (Brown v. Louisiana (1977) 447 U.S. 323, 334.) Given the “acute need for reliability in capital sentencing proceedings” (Mongev. California, 524 USS. at p. 732; accord Johnson v. Mississippi, 486 U.S. at p. 584; Gardner v. Florida, 430 U.S. at 359; Woodson v. North Carolina, 428 U.S.at p. 305), the Sixth and Eighth Amendmentsare likewise notsatisfied by anything less than unanimity in the crucial findingsofa capitaljury. In addition, the Constitution ofthis state assumes jury unanimity in criminaltrials. The first sentence ofarticle I, section 16 of the California Constitution provides that “[t]rial by jury is an inviolate right and shall be securedto all, but in a civil cause three-fourths of the jury may render a 51. Appellant acknowledges that this Court recently held that Ring does not require a California sentencing jury to find unanimously the existence of an aggravating factor. (People v. Prieto, supra, 30 Cal.4th at 265.) Appellant raises this issue to preserve his rights to further review. See Smith v. Murray (1986) 477 U.S. 527 [holding that even issues settled understate law must be reasserted to preserve the issue for federal habeas corpus review].) 168 verdict.” (See also People v. Wheeler, supra, 22 Cal.3d at p. 265 {confirming inviolability of unanimity requirement in criminaltrials].) The failure to require that the jury unanimously find the aggravating factors true also stands in stark contrast to rules applicable in California to noncapital cases*“ For example, in cases where a criminal defendant has been charged with special allegations that may increase the severity of his sentence, the jury must render a separate, unanimous verdict on the truth of such allegations. (See e.g., Penal Code § 1158(a).) Since capital defendants are entitled to more rigorous protections than those afforded noncapital defendants (See Mongev. California, supra, 524 U.S.at p. 732; Harmelin v. Michigan (1991) 501 U.S. 957, 994) — and, since providing more protection to a noncapital defendant than a capital defendant would violate the equal protection clause of the Fourteenth Amendment(Seee.g., Myersv. Y1st, supra, 897 F.2d at p. 421) — it follows that unanimity with regard to aggravating circumstances is constitutionally required. To apply the requirement to an enhancementfinding that may carry only a maximum 52. The federal death penalty statute also providesthat a “finding with respect to any aggravating factor must be unanimous.” 21 U.S.C. § 848(k). In addition, at least 17 death penalty states require that the jury unanimously agree on the aggravating factors proven. (See Ark. Code Ann. § 5-4-603(a) (Michie 1993); Ariz. Rev. Stat., § 13-703.01(E) (2002); Colo. Rev. Stat. Ann. § 18-1.3-1201(2)(b)(II)(A) (West 2002); Del. Code Ann., tit. 11, § 4209(c)(3)b.1. (2002); Idaho Code, § 19-2515(3)(b) (2003); Tl. Ann. Stat. ch. 38, para. 9-1(g) (Smith-Hurd 1992); La. Code Crm.Proc. Ann.art. 905.6 (West 1993): Md. Ann. Codeart. 27, § 413() (1993); Miss. Code Ann.§ 99-19-103 (1992); Neb. Rev.Stat., § 29-2520(4)(f) (2002); N.H. Rev. Stat. Ann. § 630:5([V) (1992); N.M.Stat. Ann. § 31-20A-3 (Michie 1990); Okla. Stat. Ann. tit. 21, § 701.11 (West 1993); 42 Pa. Cons. Stat. Ann. § 9711(c)(1)(iv) (1982); S.C. Code Ann. § 16-3-20(C) (Law. Co- op. 1992); Tenn. Code Ann. § 39-13-204(g) (1993); Tex. Crim. Proc. Code Ann. § 37.071 (West 1993).) 169 punishmentof one yearin prison, but not to a finding that could have “a substantial impact on the jury’s determination whether the defendant should live or die” (People v. Medina (1995) 11 Cal.4th 694, 763-764), would by its inequity violate the equal protection clause and by its irrationality violate both the due process and cruel and unusual punishmentclausesof the state and federal Constitutions, as well as the Sixth Amendment’s guarantee of a trial by jury.. In Richardson v. United States (1999) 526 U.S. 813, 815-816, the United States Supreme Court interpreted 21 U.S.C. § 848(a), and held that the jury must unanimously agree on which three drug violations constituted the “‘continuing series of violations’” necessary for a continuing criminal enterprise [CCE] conviction. The high court’s reasons for this holding are instructive: Thestatute’s word “violations” covers many different kinds of behavior of varying degrees of seriousness.... At the same time, the Government in a CCE case may well seek to prove that a defendant, charged as a drug kingpin, has been involved _ In numerousunderlying violations. Thefirst of these considerations increases the likelihood that treating violations simply as alternative means, by permitting a jury to avoid discussion of the specific factual details of each violation, will cover up wide disagreement among the jurors about just what the defendant did, and did not, do. The second consideration _ significantly aggravates the risk(present at least to a small degree whenever multiple meansare at issue) that jurors, unless required to focus upon specific factual detail, will fail to do so, simply concluding from testimony, say, of bad reputation, that where there is smoke there mustbefire. (d. at p. 819.) These reasons are doubly applicable whentheissueis life or death. Wherea statute, like California’s, permits a wide range of possible 170 ageravators and the prosecutor offers up multiple theories or instances of alleged aggravation, unless the jury is required to agree unanimouslyas to the existence of each aggravator to be weighed on death’sside ofthe scale, there is a grave risk (a) that the ultimate verdict will cover up wide disagreement amongthe jurors about just what the defendant did and didn’t do and (b) that the jurors, not being forced to do so, will fail to focus upon specific factual detail and simply conclude from a wide array of proffered ageravators that where there is smoke there mustbe fire, and on that basis concludethat death is the appropriate sentence. The risk of such an inherently unreliable decision-making process is unacceptable in a capital context. The ultimate decision of whether or not to impose death is indeed a “moral” and “normative” decision. (People v. Hawthorne, supra, 4 Cal.4th at p. 79; People v. Hayes, supra, 52 Cal.3d at p. 643.) However, Ring and Blakely makeclearthat the finding of one or more aggravating circumstances, andthe finding that the aggravating circumstances outweigh mitigating circumstances, are prerequisite to considering whetherdeath is the appropriate sentence in a California capital case. These are precisely the typeof factual determinationsfor which appellantis entitled to unanimous jury findings beyond a reasonable doubt. 171 XIX. THE INSTRUCTIONS DEFINING THE SCOPE OF THE JURY’S SENTENCING DISCRETION AND THE NATURE OF ITS DELIBERATIVE PROCESS VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS Thetrial court’s concluding instruction in this case (CALJIC No. 8.88) read as follows: It is now your duty to determine which ofthe two penalties, death or confinementin the state prison forlife without possibility of parole, shall be imposed on the defendant. After having heard all the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have beeninstructed. An aggravating factor is any fact, condition or event attending the commission of a crime whichincreasesits guilt or enormity, or addsto its injurious consequences which is above and beyond the elements of the crimeitself. A mitigating circumstanceis any fact, condition or event which as such does not constitute a justification or excuse for the crime in question but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider. In weighing the various circumstances, you determine underthe relevant evidence whichpenalty is justified and appropriate by consideringthe totality of the aggravating circumstances with the totality of the mitigating circumstances. To return a judgmentof death, each of you must be persuadedthat the 172 aggravating circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death . instead of life without parole. (CT 1103-1104; RT 2889-2891.) This instruction, which formed the centerpiece ofthetrial court’s description of the sentencing process, was constitutionally flawed. The instruction did not adequately convey several critical deliberative principles and was misleading and vague in crucial respects. The flaws in this pivotal instruction violated appellant’s fundamental rights to due process (U.S. Const., 14th Amend.), to a fair trial by jury (U.S. Const., 6th & 14th Amends.), and to a reliable penalty determination (U.S. Const., 6th, 8th & 14th Amends.) and require reversal of his sentence. (See e.g., Mills v. Maryland (1988) 486 U.S. 367, 383-384.) A. The Instructions Caused The Jury’s Penalty Choice To Turn On An Impermissibly Vague And Ambiguous Standard ThatFailed To Provide Adequate Guidance And Direction Under CALJIC No.8.88, the question of whether to impose a death sentence on appellant hinged on whether the jurors were “persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole.” (CT 1104; RT 2890.) The words “so substantial,” however, provided the jurors with no guidance as to “what they have to find in order to impose the death penalty... .” (Maynard v. Cartwright (1988) 486 U.S. 356, 361-362.) The use of this phrase creates a standard that 1s vague, ‘directionless and impossible to quantify. The phrase is so varied in meaning and so broad in usagethat it cannot be understoodin the context of deciding between life and death and invites the sentencer to impose death through the 173 exercise of “the kind of open-ended discretion which washeld invalid in Furman v. Georgia ....” (Id. at p. 362.) The Georgia Supreme Court found that the word “substantial” causes vagueness problems when used to describe the type of prior criminal history jurors may consider as an aggravating circumstancein a capital case. Arnold v. State (Ga. 1976) 224 $.E.2d 386, 391, held that a statutory aggravating circumstance which asked the sentencer to consider whetherthe accused had “a substantial history of serious assaultive criminal convictions” did “not provide the sufficiently ‘clear and objective standards’ necessaryto control the jury’s discretion in imposing the death penalty. [Citations.]” (See Zant v. Stephens (1983) 462 U.S. 862, 867, fn. 5.) In analyzing the word “substantial,” the Arnold court concluded: Black’s Law Dictionary defines “substantial”as “of real worth and importance,” “valuable.” Whether the defendant’s prior history of convictions meets this legislative criterion is highly subjective. While we might be more willing to find such languagesufficient in another context, the fact that we are here concerned with the imposition of the death penalty compels a different result. (224 S.E.2d at p. 392, fn. omitted.) Appellant acknowledges that this Court has stated, in discussing the constitutionality of using the phrase “so substantial” in a penalty phase concludinginstruction,that “the differences between [Arnold] andthis case are obvious.” (People v. Breaux (1991) 1 Cal.4th 281, 316, fn. 14.) 53. The United States Supreme Court has specifically recognized the portion of the Arnold decision invalidating the “substantial history” factor on vagueness grounds. (See Gregg v. Georgia, supra, 428 U.S.at p. 202.) 174 However, Breaux’s summary disposition ofArnold does not specify what those “differences” are, or how they impactthe validity of Arnold’s analysis. While Breaux, Arnold, and thiscase, like all cases, are factually different, their differences are not constitutionally significant and do not undercut the Georgia Supreme Court’s reasoning. All three cases involve claims that the language of an important penalty phase jury instruction is “too vague and nonspecific to be applied evenly by a jury.” (Arnold, supra, 224 S.E.2d at p. 392.) The instruction in Arnold concerned an aggravating circumstance that used the term “substantial history of serious assaultivecriminal convictions”(ibid., emphasis added), while the instant instruction,like the one in Breaux, uses that term to explain how jurors should measure and weigh the “aggravating evidence”in deciding on the correct penalty. Accordingly, while the three cases are different, they have at least one common characteristic: they all involve penalty-phase instructions whichfail to “provide the sufficiently ‘clear and objective standards’ necessary to control the jury’s discretion in imposing the death penalty.” (/d. at p. 391.) In fact, using the term “substantial” in CALJIC No. 8.88 arguably gives rise to more severe problems than those the Georgia Supreme Court identified in the use of that term in Arnold. The instruction at issue here governs the very act of determining whether to sentence the defendant to death, while the instruction at issue in Arnold only defined an aggravating circumstance, and wasat least one step removed from the actual weighing . process used in determining the appropriate penalty. In sum,there is nothing about the languageofthis instruction that “implies any inherentrestraint on the arbitrary and capriciousinfliction of the death sentence.” (Godfrey v. Georgia (1980) 446 U.S. 420, 428.) The 175 words “so substantial” are far too amorphousto guide a jury in deciding whether to impose a death sentence. (See Stringer v. Black (1992) 503 U.S. 222.) The instruction violated due process and rendered the penalty determination unreliable (U.S. Const., 8th & 14th Amends.), requiring that the death judgment must be reversed. B. The Instructions Failed To Inform The Jurors That The Central Determination Is Whether the Death Penalty Is The Appropriate Punishment, Not Simply An Authorized Penalty, For Appellant The ultimate question in the penalty phase of any capital case is whether death is the appropriate penalty. (Woodson v. North Carolina (1976) 428 U.S. 280, 305; People v. Edelbacher (1989) 47 Cal.3d 983, 1037.) Indeed, this Court consistently has held that the ultimate standard in California death penalty cases is “which penalty is appropriate in the particular case.” (People v. Brown (1985) 40 Cal.3d 512, 541 [jurors are not required to vote for the death penalty unless, upon weighing the factors, they decide it is the appropriate penalty underall the circumstances]; accord, People v. Champion (1995) 9 Cal.4th 879, 948; People v. Milner (1988) 45 Cal.3d227, 256-257; see also Murtishaw v. Woodford (9" Cir. 2001) 255 F.3d 926, 962:) However, the instruction under CALJIC 8.88 did not makeclear this standard of appropriateness. Bytelling the jurors that they could return a judgmentofdeathif the aggravating evidence “warrants” death instead of life without parole,” the instruction failed to inform the jurorsthat the central inquiry was not whether death was “warranted,” but whether it was appropriate. Those two determinations are not the same. A rational juror could find in a particular case that death was warranted, but not appropriate, because the meaning of “warranted”is considerably broader than that of 176 “appropriate.” Merriam-Webster 's Collegiate Dictionary (10th ed. 2001) defines the verb “warrant”as, inter alia, “to give warrant or sanction to” something, or “to serve as or give adequate ground for” doing something. (Id. at p. 1328.) By contrast, “appropriate”is defined as “especially suitable or compatible.” (/d. at p. 57.) Thus, a verdict that death is “warrant[ed]” might mean simply that the jurors found, upon weighing the relevant factors, that such a sentence was permitted. That is a far different than the findingthe jury is actually required to make: that death is an “especially suitable,”fit, and proper punishment, 1.e., that it is appropriate. Because the terms “warranted” and “appropriate” have such different meanings,it is clear why the Supreme Court’s Eighth Amendment jurisprudence has demandedthat a death sentence must be based on the conclusion that death is the appropriate punishment, not merely thatit is warranted. To satisfy “[t]he requirement of individualized sentencing in capital cases” (Blystone v. Pennsylvania (1990) 494 U.S. 299, 307), the punishment mustfit the offender and the offense; i.e., it must be appropriate. To say that death must be warrantedis essentially to return to the standards of the earlier phase of the California capital-sentencing scheme in which death eligibility is established. Jurors decide whether death is “warranted” by finding the existence of a special circumstance that authorizes the death penalty in a particular case. (See People v. Bacigalupo (1993) 6 Cal.4th 457, 462, 464.) Thus, just because death may be warranted or authorized does not meanitis appropriate. Using the term “warrant”at the final, weighing stage of the penalty determination risks confusing the jury by blurring the distinction between the preliminary determination that death is “warranted,”1.e., that 177 the defendantis eligible for execution, and the ultimate determination that it is appropriate to execute the defendant. The instructional error involved in using the term “warrants” here was not cured bythetrial court’s earlier reference to a “justified and appropriate” penalty. (RT 2890 [“In weighing the various circumstances, you determine underthe relevant evidence which penalty is justified and appropriate... .”].) That sentence did nottell the jurors they could only return a death verdict if they found it appropriate. Moreover, the sentence containing the “justified and appropriate” language wasprefatory in effect and impact; the operative language, which expressly delineated the scope of the jury’s penalty determination, cameat the very end ofthe instruction, and told the jurorsthey could sentence appellant to death if they foundit “warrant[ed].” The crucial sentencing instructions violated the Eighth and Fourteenth Amendments by allowing the jury to impose a death judgment without first determining that death was the appropriate penalty as required by state law. The death judgmentis thus constitutionally unreliable (U.S. Const., 8th & 14th Amends.) denies due process (U.S. Const., 14th Amend.; Hicks v. Oklahoma(1980) 447 U.S.343, 346) and must be reversed. C. TheInstructions Failed To Inform The Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required To Return A Sentence of Life Without The Possibility Of Parole California Penal Code section 190.3 directs that after considering aggravating and mitigating factors, the jury “shall impose” a sentence of confinementin state prison for a term of life without the possibility of parole if “the mitigating circumstances outweigh the aggravating 178 circumstances.” (Pen. Code, § 190.3.) The United States Supreme Court has held that this mandatory language is consistent with the individualized consideration of the defendant’s circumstances required under the Eighth Amendment. (See Boyde v. California (1990) 494 U.S. 370, 377.) This mandatory languageis not included in CALJIC No.8.88. CALJIC No. 8.88 only addresses directly the imposition of the death penalty and informsthe jury that the death penalty may be imposedif aggravating circumstancesare “so substantial” in comparison to mitigating circumstancesthat the death penalty is warranted. While the phrase “so substantial” plainly implies some degreeof significance, it does not properly conveythe “greater than” test mandated by Penal Code section 190.3. The instruction by its terms would permit the imposition of a death penalty whenever aggravating circumstances were merely “of substance” or “considerable,” even if they were outweighed by mitigating circumstances. Byfailing to conform to the specific mandate of Penal Codesection 190.3, the instruction violated the Fourteenth Amendment. (See Hicks v. Oklahoma,supra, 447 U.S.at p. 346.) In addition, the instruction improperly reduced the prosecution’s burden of proof below that required by Penal Code section 190.3. An instructional error that misdescribes the burden of proof, and thus “vitiates all the jury’s findings,” can never be harmless. (Sullivan v. Louisiana, supra, 508 U.S.at p. 281, original emphasis.) 54. Thestatute also states that if aggravating circumstances outweigh mitigating circumstances, the jury “shall impose”a sentence of death. This Court has held, however, that this formulation of the instruction improperly misinformedthe jury regardingits role, and disallowedit. (See People v. Brown (1985) 40 Cal.3d 512, 544, fn. 17.) 179 This Court has foundthe formulation in CALJIC No. 8.88 - permissible because “[t]he instruction clearly stated that the death penalty could be imposed onlyif the jury found that the aggravating circumstances outweighed[the] mitigating.” (People v. Duncan, supra, 53 Cal.3d at p. 978.) The Court reasoned that since the instruction stated that a death verdict requires that aggravation outweigh mitigation, it was unnecessary to instruct the jury of the converse. The Duncanopinioncites no authority for this proposition, and appellant respectfully asserts that it conflicts with numerous opinions that have disapproved instructions emphasizing the prosecution theory of a case while minimizing or ignoring that of the defense. (See e.g., People v. Moore (1954) 43 Cal.2d 517, 526-529; People v. Costello (1943) 21 Cal.2d 760; People v. Kelley (1980) 113 Cal.App.3d 1005, 1013-1014; People v. Mata (1955)133 Cal.App.2d 18, 21; seealso People v. Rice (1976) 59 Cal.App.3d 998, 1004 [instructions required on “every aspect” of case, and should avoid emphasizing either party’s theory]; Reaganv. United States (1895) 157 U.S. 301, 310.) 55. There are due process underpinningsto these holdings. In Wardius v. Oregon (1973) 412 U.S. 470, 473, fn. 6, the United States Supreme Court warnedthat “‘state-trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial” violate the defendant’s due process rights under the Fourteenth Amendment. (See also Washington v. Texas (1967) 388 U.S. 14, 22; Gideon v. Wainwright (1963) 372 U.S. 335, 344 (1963); Izazaga v. Superior Court (1991) 54 Cal.3d 356, 372-377;cf. Goldstein, The State and the Accused: Balance ofAdvantage in Criminal . | Procedure (1960) 69 Yale L.J. 1149, 1180-1192.) Noting that the due process clause “does speak to the balance of forces between the accused and his accuser,” Wardius held that “in the absence of a strong showing of state interests to the contrary”... there “must be a two-waystreet”as between the prosecution and the defense. (Wardius v. Oregon, supra, 412 U.S. at p. 474.) Though Wardius involved reciprocal discovery rights, the 180 People v. Moore (1954) 43 Cal.2d 517, is instructive on this point. There, this Court stated the following about a set of one-sided instructions on self-defense: It is true that the . . . instructions .. . do not incorrectly state the law . . ., but they stated the rule negatively and from the viewpoint solely of the prosecution. To the legal mind they would imply [their corollary], but that principle should not have beenleft to implication. The difference between a negative and a positive statementof a rule of law favorable to oneor the other of the parties is a real one, as every practicing lawyer knows. . .. There should be absolute impartiality as between the People and the defendant in the matter of instructions, including the phraseology employedin the statement of familiar principles. (Id. at pp. 526-527, internal quotation marks omitted.) In other words, contrary to the apparent assumption in Duncan,the law does notrely on jurors to infer one rule from the statementofits opposite. Noris a pro-prosecution instruction saved bythe fact that it does notitself misstate the law. Even assuming they were a correct statement of law, the instructions at issue here stated only the conditions under which a death verdict could be returned and contained no statement of the conditions under which a verdict of life was required. Thus, Moore is squarely on point. It is well-settled that courts in criminaltrials must instruct the jury on any defense theory supported by substantial evidence. (See People v. Glenn (1991) 229 Cal.App.3d 1461, 1465; United States v. Lesina (9th Cir. 1987) 833 F.2d 156, 158.) The denial of this fundamental principle in appellant’s case deprived him of due process. (See Evitts v. Lucey (1985) 469 U.S. same principle should apply to jury instructions. 181 387, 401; Hicks v. Oklahoma, supra, 447 U.S. at p. 346.) Moreover, the instruction given here is not saved by the fact that it is a sentencing instruction as opposed to one guiding the determination of guilt or innocence,since any reliance on sucha distinction would violate the equal protection clause of the Fourteenth Amendment. Individuals convicted of capital crimes are the only class of defendants sentenced by juriesin this state, and they are as entitled as noncapital defendants — if not more entitled — to the protections the law affords in relation to prosecution-slanted instructions. Indeed, appellant can conceive of no governmentinterest, much less a compelling one, served by denying capital defendants such protection. (See U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15; Plyler v. Doe (1982) 457 U.S. 202, 216-217.) Moreover, the slighting of a defense theory in the instructions has been held to deny not only due process, but also the right to a jury trial becauseit effectively directs a verdict as to certain issues in the defendant’s case. (See Zemina v. Solem (D.S.D. 1977) 438 F.Supp. 455, 469-470, aff'd and adopted, Zemina v. Solem (8th Cir. 1978) 573 F.2d 1027, 1028; cf Cool v. United States (1972) 409 U.S. 100 [disapproving instruction placing unauthorized burden on defense].) Thus, the defective instruction violated appellant’s Sixth Amendment rights as well. Reversal of his death sentence is required. D. The Instructions Failed To Inform The Jurors That Appellant Did Not Have To Persuade Them The Death Penalty Was Inappropriate The sentencing instruction also was defective becauseit failed to inform the jurorsthat, under California law, neither party in a capital case bears the burden to persuade the jury of the appropriateness or inappropriateness of the death penalty. (See People v. Hayes (1990) 52 182 Cal.3d 577, 643 [“Because the determination of penalty is essentially moral and normative ... there is no burden of proof or burden of persuasion”’].) That failure was error, because no matter what the nature of the burden, and even where no burden exists, a capital sentencing jury mustbe clearly informedofthe applicable standards,so that it will not improperly assign that burden to the defense. Asstated in United States ex rel. Free v. Peters (N.D.Ill. 1992) 806 F.Supp. 705, 727-728, revd. Free v. Peters (7th Cir. 1993) 12 F.3d 700: To the extent that the jury is left with no guidanceasto (1) who,if anyone, bears the burden of persuasion, and (2) the nature of that burden, the [sentencing] schemeviolates the Eighth Amendment’s protection against the arbitrary and capricious imposition of the death penalty. [Citations omitted.] Illinois, like California, did not place the burden of persuasion on either party in the penalty phase of a capital trial. (/d. at p. 727.) Nonetheless, Peters held that the Illinois pattern sentencing instructions were defective because they failed to apprise the jury that no such burden is imposed. The instructions given in this case suffer from the same defect, with the result that capital juries in California are not properly guided onthis crucial point. The death judgment musttherefore be reversed. E. Conclusion Asset forth above, the trial court’s main sentencing instruction, CALJIC No. 8.88, failed to comply with the requirements of the due process clause of the Fourteenth Amendment and with the cruel and unusual punishmentclause of the Eighth Amendment. Therefore, appellant’s death judgment must be reversed. 183 XX THE INSTRUCTIONS ABOUT THE MITIGATING AND AGGRAVATING FACTORSIN PENAL CODE SECTION 190.3, AND THE APPLICATION OF THESE SENTENCING FACTORS, RENDER APPELLANT’S DEATH SENTENCE UNCONSTITUTIONAL The jury was instructed on Penal Code section 190.3 pursuantto a modified version of CALJIC No. 8.85, the standard instruction regarding the statutory factors that are to be considered in determining whether to impose a sentence of death or life without the possibility of parole (CT 1095-1096; RT 2884-2886) and pursuant to CALJIC No.8.88, the standard instruction regarding the weighing of these aggravating and mitigating factors (CT 1103-1104; RT 2889-2891). These instructions, together with the application of these statutory sentencing factors, render appellant’s death sentence unconstitutional. First, the application of Penal Code section 190.3, subdivision (a) resulted in arbitrary and capricious imposition of the death penalty on appellant. Second, the introduction of evidence under Penal Code Section 190.3, subdivision (b) violated appellant’s federal constitutional rights to due process, equal protection and a reliable penalty determination. Even if this evidence were permissible, the failure to instruct on the requirement ofjury unanimity with regard to such evidence denied appellant his federal constitutional rights to a jury trial and to a reliable penalty determination. Third, the failure to delete inapplicable sentencing factors violated appellant’s constitutional rights under the Sixth, Eighth and Fourteenth Amendments. Fourth therestrictive adjectives used in the list of potential mitigating factors unconstitutionally impeded the jurors’ consideration of mitigating evidence. Fifth, the failure of the instruction to 184 require specific, written findings by the jury with regard to the aggravating factors found and consideredin returning a death sentence violates the federal constitutional rights to meaningful appellate review and equal protection of the law. Finally, even if the procedural safeguards addressed in this argument are not necessary to ensure fair and reliable capital sentencing, denying them to capital defendants violates equal protection. Because these essential safeguards were not applied to appellant’s penalty trial, his death judgment must be reversed. A. The Instruction On Penal Code Section 190.3, Subdivision (a) And Application Of That Sentencing Factor Resulted In The Arbitrary And Capricious Imposition Of The Death Penalty Section 190.3, subsection (a), violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, because it is applied in such a wanton and freakish mannerthat almost all features of every murder have been foundto be “aggravating” within that statute’s meaning, even ones squarely at odds with others deemed supportive of death sentences in othercases. Although factor (a) has survived a facial Eighth Amendmentchallenge (Tuilaepa v. California (1984) 512 U.S. 967, 975- 976), it has been used in ways so arbitrary and contradictory as to violate both the federal guarantee of due process of law and the Eighth Amendment. Factor(a) directs the jury to consider as aggravation the “circumstances of the crime.” Because this Court has always foundthat the broad term “circumstances of the crime” meets constitutional scrutiny, it has never applied a limiting construction to factor (a). Instead, it has allowed an extraordinary expansion of that factor, finding that it is a relevant “circumstance of the crime”that, e.g., the defendant: had a “hatred of 185 religion”;*~ sought to conceal evidence three weeksafter the crime;3Z threatened witnessesafter his arrest; disposed ofthe victim’s body in a mannerprecluding its recovery,or had a mental condition that compelled him to commit the crime California prosecutors have argued that almost every conceivable circumstance of a crime should be considered aggravating, even circumstances starkly opposite to others relied on as aggravation in other | cases. (See Tuilaepa v. California, supra, 512 U.S. at pp. 986-987 (dis. opn. of Blackmun, J.).) The examples cited by Justice Blackmun in Tuilaepa show that because this Courthas failed to limit the scope of the term — “circumstances of the crime,” different prosecutors have urgedjuries to find squarely conflicting circumstances aggravating underthat factor. In practice, the overbroad “circumstances of the crime” aggravating factor licenses indiscriminate imposition of the death penalty upon no basis other than “that a particular set of facts surrounding a murder, . . . were enough in themselves, and without some narrowingprinciples to apply to those facts, to warrant the imposition of the death penalty.” (Maynardv. Cartwright (1988) 486 U.S. 356, 363 [discussing the holding in Godfreyv. Georgia (1980) 446 U.S. 420].) It is, therefore, unconstitutional as applied. ([bid.) 56. People v. Nicholas (1991) 54 Cal.3d 551, 581-582. 57. People v. Walker (1988) 47 Cal.3d 605, 639, fn. 10. 58. People v. Hardy (1992) 2 Cal.4th 86, 204. 59. People v. Bittaker (1989) 48 Cal.3d 1046, 1110, fn. 35. 60. People v. Smith (2005) 35 Cal.4th 334, 352. 186 B. The Instruction On Penal Code Section 190.3, Subdivision (b) And Application Of That Sentencing Factor Violated Appellant’s Constitutional Rights To Due Process, Equal Protection, Trial By Jury And A Reliable Penalty Determination Factor (b), which tracks Penal Code Section 190.3(b), permitted the jury to consider in aggravation “[t]he presence or absence of criminal activity by the defendant, other than the crimes for which the defendant has been tried in the present proceedings, which involvethe use or attempted use of force or violence or the express or implied threat to use force or violence.” The prosecution in this case alleged that appellant had committed one other act of force or violence underthisstatute. Thejurors weretold they could rely on this aggravating factor in the weighing process necessary to determine if appellant should be executed. (CT 1095; RT 2884.) The jurors were told that before they could rely on this evidence, they had to find beyond a reasonable doubtthat appellant did in fact commit the criminalacts alleged. (CT 1097; RT 2886.) Although the jurors weretold that all 12 must agree on the final sentence (CT 1104; RT 2891), they were nottold that during the weighing process, before they could rely on the alleged unadjudicated crimes as aggravating evidence, they had to unanimously agreethat, in fact, appellant committed those crimes. On the contrary, the jurors were explicitly instructed that such unanimity was not required: It is not necessary for all jurors to agree. If any juror is convinced beyond a reasonable doubtthat such criminal activity occurred, that juror may considerthat activity as a factor in aggravation. 187 (/bid.) Thus, the sentencing instructions contrasted sharply with those received at the guilt phase, where the jurors weretold they had to unanimously agree on appellant’s guilt, the degree of the homicide(if any), and the special circumstanceallegations. Asset forth below, the unadjudicated crimes evidence should not have been admitted. But even assuming the evidence was constitutionally permissible, the aspect of Penal Code section 190.3, subdivision (b), which allows a jury to sentence a defendant to death by relying on evidence on whichit has not agreed unanimously violates both the Sixth Amendment rightto a jury trial and the Eighth Amendment’s ban on unreliable penalty phase procedures. 1. The use of unadjudicated criminalactivity as aggravation renders appellant’s death sentenceunconstitutional The admission of evidence of previously unadjudicated criminal conduct as aggravation violated appellant’s rights to due process under the Fourteenth Amendment, trial by an impartial jury under the Sixth Amendmentand a reliable determination of penalty under the Eighth Amendment. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578, 584- 587; State v. Bobo (Tenn. 1987) 727 S.W.2d 945, 954-955 [prohibiting use of unadjudicated crimes as aggravating circumstance understate constitution including rights to due process and impartial jury]; State v. McCormick (Ind. 1979) 397 N.E.2d 276 [prohibiting use of unadjudicated crimes as aggravating circumstances under Fighth and Fourteenth Amendments].) Thus, expressly instructing the jurors to consider such evidencein aggravation violated those same constitutional rights. In addition, because California does not allow unadjudicated offenses to be used in noncapital sentencing, using this evidencein a capital 188 proceeding violated appellant’s equal protection rights underthe state and federal Constitutions. (Myers v. Ylst, supra, 897 F.2d at p. 421.) And becausethe state applies its law in an irrational manner, using this evidence in a capital sentencing proceeding also violated appellant’s state and federal rights to due process of law and a properly instructed, impartial-jury. (Hicks v. Oklahoma, supra, 447 U.S.at p. 346; U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16.) 2. The failure to require a unanimousjury finding on the unadjudicated acts of violence denied appellant’s sixth amendmentright to a jury trial and requires reversal of his death sentence Even assuming, arguendo,that the evidence of the prior - unadjudicated offenses was constitutionally admissible at the penalty phase, the failure of the instructions pursuant to Penal Code section 190.3, subdivision (b) to require juror unanimity on the allegations that appellant committed prior acts of violence renders his death sentence unconstitutional. The Sixth Amendmentguarantees the right to a jury trial in all criminal cases. The Supreme Court hasheld, however, that the version of the Sixth Amendmentapplied to the states through the Fourteenth Amendment does not require that the jury be unanimousin non-capital cases. (Apodacav. Oregon (1972) 406 U.S. 404 [upholding conviction by a 10-2 vote in non-capital case]; Johnson v. Louisiana (1972) 406 U.S. 356, 362, 364 [upholding a conviction obtained by a 9-3 vote in non-capital case].) Nor does it require the states to empanel 12 jurorsin all non-capital criminal cases. (Williams v. Florida (1970) 399 U.S. 78 [approving the use of six- person juries in criminal cases].) The United States Supreme Court also has made clear, however,that even in non-capital cases, when the Sixth Amendment does apply, there are 189 limits beyond whichthe states may not go. For example, in Ballew v. Georgia (1978) 435 U.S. 223, the Court struck down a Georgia law allowing criminal convictions with a five-person jury. Moreover, the Court also has held that the Sixth Amendment does not permit a conviction based on the vote of five of six seated jurors. (Brown v. Louisiana (1979) 447 U.S. 323; Burch v. Louisiana (1978) 441 U.S. 130.) Thus, when the Sixth Amendment applies to a factual finding — at least in a non-capital case — although jurors need not be unanimousasto the finding, there must at a minimum be significant agreement amongthejurors. Prior to June of 2002, none ofthe United States Supreme Court’s law on the Sixth Amendmentapplied to the aggravating factors set forth in section 190.3. Prior to that date, the Sixth Amendmentrightto jury trial did not apply to aggravating factors on which a sentencer could rely to impose a sentence of death in a state capital proceeding. (Walton v. Arizona (1988) 497 U.S. 639, 649.) In light of Walton, it is not surprising that this Court had, on manyoccasions,specifically rejected the argumentthat a capital defendant had a Sixth Amendment right to a unanimousjury in connection with the jury’s findings as to aggravating evidence. (See, e.g., People v. - Taylor (2002) 26 Cal.4th 1155, 1178; People v. Lines (1997) 15 Cal.4th 997, 61. The Supreme Court often has recognized that because death is a unique punishment, there is a corresponding need for procedures in death | penalty cases that increase the reliability of the process. (See, e.g., Beck v. Alabama, supra, 447 U.S. 625; Gardner v. Florida (1977) 430 U.S.349, 357.) Itis arguable, therefore, that where the state seeks to impose a death sentence, the Sixth Amendment does not permit even a super-majority . verdict, but requires true unanimity. Because the instructionsin this case did not even require a super-majority ofjurors to agree that appellant. committed the alleged act of violence, there is no need to reach this questionhere. 190 1077; People v. Ghent (1987) 43 Cal.3d 739, 773.) In Ghent for example, the Court held that such a requirement was unnecessary under “existing law.” (People v. Ghent, supra, 43 Cal.3d at p. 773.) On June 24, 2002, however, the “existing law” changed. In Ring v. Arizona, supra, 536 U.S. 584, the United States Supreme Court overruled Walton and held that the Sixth Amendmentright to a jury trial applied to “aggravating circumstance[s] necessary for imposition of the death penalty.” (Id. at p. 609; accord id. at p. 610 (conc. opn. of Scalia, J.) [noting that the Sixth Amendment right to a jury trial applies to “the existence of the fact that an aggravating factor exists”].) In other words, absent a numerical requirement of agreement in connection with the aggravating factor set forth in section 190.3, subdivision (b), this section violates the Sixth Amendment as applied in Ring. 3. Absent a requirement of jury unanimity on the unadjudicated acts of violence, the instructions on Penal Codesection 190.3, subdivision (b), allowed jurors to impose the death penalty on appellant based on unreliable factual findings that were never deliberated, debated or discussed The United States Supreme Court has recognized that “death is a different kind of punishment from any other which may be imposedin this country.” (Gardner v. Florida, supra, 430 U.S. at p. 357.) Because death is such a qualitatively different punishment, the Eighth and Fourteenth Amendments require “a greater degree of reliability when the death sentence is imposed.” (Lockett v. Ohio (1978) 438 U.S. 586, 604.) For this reason, the Court has not hesitated to strike down penalty phase proceduresthat increasethe risk that the factfinder will make an unreliable determination. (Caldwell v. Mississippi, supra, 472 U.S. at pp. 328-330; Green v. Georgia 19] (1979) 442 U.S. 95; Lockett v. Ohio, supra, 438 U.S.at pp. 605-606; Gardnerv. Florida, supra, 430 U.S.at pp. 360-362.) The Court has made clear that defendants have “‘a legitimate interest in the character of the . procedure whichleads to the imposition of sentence evenif [they] may have no right to object to a particular result of the sentencing process.” (Gardner v. Florida, supra, 430 U.S.at p. 358.) The California Legislature has provided that evidence of a defendant’s act which involved the use or attempted use of force or violence can be presented duringthe penalty phase. (Pen. Code, § 190.3, subd.(b).) Before the factfinder may consider such evidence,it must find that the state has proven the act beyond a reasonable doubt. Thejurorsalso are instructed, however,that they need not agree on this, and that as long as any one juror believes the act has been proven, that one juror may considerthe actin aggravation. (CALJIC No. 8.87.) This instruction was given here. (CT 1097; RT 2886-2887.) Thus, as noted above, appellant’s jury was permitted individually to rely on this ~ and any other — aggravating factor any one of them deemed properas longas all the jurors agreed on the ultimate punishment. Because this proceduretotally eliminated the deliberative function of the jury that guards against unreliable factual determinations, it is inconsistent with the - Eighth Amendment’s requirement of enhanced reliability in capital cases. (See Johnson v. Louisiana, supra, 406 U.S. at pp. 388-389 (dis. opn. of Douglas,J.); Ballew v. Georgia, supra, 435 U.S. 223; Brownv. Louisiana, supra, 447 U.S. 323.) | In Johnson v. Louisiana, supra, 406 U.S.at pp. 362, 364. a plurality of the United States Supreme Court heldthat the jury trial right of the Sixth Amendmentthat applied to the states through the Fourteenth Amendment 192 - did not require jury unanimity in state criminaltrials, but permitted a conviction based on a vote of 9 to 3. In dissent, Justice Douglas pointed out that permitting jury verdicts on less than unanimousverdicts curtailed deliberation between the jurors and thereby substantially diminished the reliability of the jury’s decision. This occurs, he explained, because “nonunanimousjuries need not debate and deliberate as fully as must unanimousjuries. As soon as the requisite majority is attained, further consideration is not required . . . even though the dissident jurors might, if given the chance,be able to convince the majority.” (/d. at pp. 388-389 (dis. opn. of Douglas, J.).) The Supreme Court subsequently embraced Justice Douglas’s observations about the relationship between jury deliberation and reliable factfinding. In striking down a Georgia law allowing criminal convictions with a five-person jury, the Court observed that such a jury wasless likely “to foster effective group deliberation. At some point this decline [in jury number] leads to inaccurate factfinding. .. .” (Ballew v. Georgia, supra, 435 USS. at p. 232.) Similarly, in precluding a criminal conviction on the vote of five out of six jurors, the Court has recognized that “relinquishmentof the unanimity requirement removes any guarantee that the minority voices will actually be heard.” (Brown v. Louisiana, supra, 447 U.S.at p. 333; see also Allen v. United States (1896) 164 U.S. 492, 501 [“The very object of the jury system is to secure uniformity by a comparison of views, and by arguments amongthe jurors themselves.”].) The Supreme Court’s observations about the effect ofjury unanimity on group deliberation and factfinding reliability are even more applicable in this case for two reasons. First, since this is a capital case, the need for reliable factfinding determinationsis substantially greater. Second, unlike 193 the Louisiana schemesat issue in Johnson, Ballew, and Brown,the California scheme does not require even a majority ofjurors to agree that an act which involved the use or attempted useof force or violence occurred before relying on such conduct to impose a death penalty. Consequently, “no deliberation at all is required” on this factual issue. (Johnson v. Louisiana, supra, 406 U.S.at p. 388, (dis. opn. of Douglas, J.).) Given the constitutionally significant purpose served by jury deliberation on factual issues and the enhanced needforreliability in capital sentencing, a procedure that allows individual jurors to impose death on the basis of factual findings that they have not debated, deliberated or even discussed is unreliable and, therefore, constitutionally impermissible. A new penalty trial is required. (See Johnson v. Mississippi (1988) 486 U.S. 578, 586 [harmless error analysis inappropriate whentrial court introduces evidencethat violates Eighth Amendment’s reliability requirementsat defendant’s capital sentencing hearing].) 194 C. The Failure To Delete Inapplicable Sentencing Factors Violated Appellant’s Constitutional Rights Most ofthe factors listed in CALJIC No. 8.85 were inapplicable to the facts of this case. However,the trial court did not delete those inapplicable factors from theinstruction. Includingthese irrelevant factors in the statutory list introduced confusion, capriciousness and unreliability into the capital decision-making process, in violation of appellant’s rights under the Sixth, Eighth and Fourteenth Amendments. Appellant recognizes that this Court has rejected similar contentions previously (see, e.g., People v. Carpenter (1999) 21 Cal.4th 1016, 1064), but he requests reconsideration for the reasons given below. In addition, appellant raises the issue to preserve it for federal review. Including inapplicable statutory sentencingfactors was harmful ina number of ways. First, only factors (a), (b), and (c) may lawfully be considered in aggravation — in this case, only factors (a) and (b) were included. (See People v. Gurule (2002) 28 Cal.4th 557, 660; People v. Montiel (1993) 5 Cal.4th 877, 944-945.) Appellant did not present any mitigating evidencein the penalty phase and manyofthe mitigating factors werealso not applicable in this case, including factors (e) [consent of victim]; (f) [moral justification; and . (h) [ability to appreciate the criminality of one’s conduct].) Instructing the jury on irrelevant matters diluted the jury’s focus, distracted its attention from the task at hand and introduced confusioninto the process. Such irrelevant instructionsalso created a grave risk that the death penalty was imposedon the basis of inapplicable factors. Finally, the list of inapplicable mitigating factors inevitably denigrated the mitigating evidence that the jury received in the guilt phaseofthe tral. 195 In no other area of criminal law is the jury instructed on matters unsupported by the evidence. Indeed, this Court has said that trial courts have a “duty to screen out factually unsupported theories, either by appropriate instruction or by not presenting them to the jury in the first place.” (People v. Guiton (1993) 4 Cal.4th 1116, 1131.) The failure to screen out inapplicable factors here required the jurors to make an ad hoc determination onthe legal question of relevancy and underminedthe reliability of the sentencing process. The inclusion of inapplicable factors also deprived appellant of his right to an individualized sentencing determination based on permissible factors relating to him and to the crime. In addition, that error artificially inflated the weight of the aggravating factors and violated the Sixth, Eighth, and Fourteenth Amendment requirements of heightenedreliability in the penalty determination. (Ford v. Wainwright, supra, 477 U.S.at pp. 411, 414; Beck v. Alabama,supra, 447 U.S. at p. 637.) Reversal of appellant’s death judgmentisrequired. D. Restrictive Adjectives Usedin the List of Potential Mitigating Factors Impermissibly Impeded the Jurors’ Consideration of Mitigation Theinclusionin thelist of potential mitigating factors read to appellant’s jury of such adjectives as “extreme” (See factors (d) and (g); CT 1095; RT 2884), and “substantial” (See factor (g); CT 1096; RT 2885), acted as a barrier to the consideration of mitigation, in violation of the Sixth, Eighth and Fourteenth Amendments. (Mills v. Maryland, supra, 486 U.S. 367; Lockett v. Ohio, supra, 438 U.S. 586.) 196 E. The Failure To Require The Jury To Base A Death Sentence On Written Findings Regarding The Aggravating Factors Violated Appellant’s Constitutional Rights To Meaningful Appellate’ Review And Equal Protection Of The Law Theinstructions given in this case under CALJIC No.8.85 and No. 8.88 did not require the jurors to make written or other specific findings about the aggravating factors they found and considered in imposing a death sentence. The failure to require such express findings deprived appellant of his Fourteenth Amendment due process and Eighth Amendmentrights to meaningful appellate review as well as his Fourteenth Amendment right to equal protection of the law. (California v. Brown (1987) 479 U.S.538, 543; Gregg v. Georgia, supra, 428 U.S. at p. 195.) Because California juries have total, unguided discretion on how to weigh aggravating and mitigating circumstances (Tuilaepa v. California (1984) 512 U.S. 967, 979-980), there can be no meaningful appellate review unless they make written findings regarding those factors, because it is impossible to “reconstruct the findings of the state trier of fact.” (See Townsendv. Sain (1963) 373 U.S. 293, 313- 316.) | Written findings are essential for a meaningful review of the sentence imposed. Thus, in Mills v. Maryland, supra, 486 U.S. 367, the requirement of written findings applied in Maryland death cases enabled the Supreme Court to identify the error committed underthe prior state procedure and to gaugethe beneficial effect of the newly-implementedstate procedure. (Jd.p. 383, fn. 15.) While this Court has held that the 1978 death penalty schemeis not unconstitutionalin failing to require express jury findings (People v. Fauber (1992) 2 Cal.4th 792, 859), it has treated such findings as so fundamental to 197 due process as to be required at parole suitability hearings. A convicted prisoner whoalleges that he was improperly denied parole must proceed by a petition for writ of habeas corpus and mustallege the state’s wrongful conductwith particularity. (Jn re Sturm (1974) 11 Cal.3d 258.) Accordingly, the parole board is required to state its reasons for denying parole, because “[i]t is unlikely that an inmate seeking to establish thathis application for parole wasarbitrarily denied can make necessary allegations with the requisite specificity unless he has some knowledgeof the reasons therefor.” (11 Cal.3d at p. 267.) The same reasoning must apply to the far graverdecision to put someone to death. (See also People v. Martin (1986) 42 Cal.3d 437, 449-450 [statement of reasons essential to meaningful appellate review].) Further, in noncapital cases the sentencer is required by California law to state on the recordthe reasons for the sentence choice. (Jbid.; Pen. Code, § 1170(c).) Under the Sixth, Eighth and Fourteenth Amendments, capital defendants are entitled to more rigorous protections than noncapital defendants. (Harmelin v. Michigan, supra, 501 U.S.at p. 994.) Since providing more protection to noncapital than to capital defendants violates the equal protection clause of the Fourteenth Amendment(See generally Myers v. Ylst, supra, 897 F.2d at p. 421), the sentencerin a capital case is constitutionally required to identify for the record in some fashion the aggravating circumstances found. The mere fact that a capital-sentencing decision is “normative” (People v. Hayes, supra, 52 Cal.3d at p. 643), and “moral” (Peoplev. Hawthorne, supra, 4 Cal.4th at p. 79), does not meanits basis cannot be articulated in written findings. In fact, the importance of written findings in capital sentencing is recognized throughout this country. Ofthe 34 post- 198 Furmanstate capital sentencing systems, 25 require some form of written findings specifying the aggravating factors the jury relied on in reaching a death judgment. Nineteen ofthose states require written findings regarding all penalty aggravating factors found true, while the remaining seven require a written finding as to at least one aggravating factor relied on to impose death“ California’s failure to require such findings rendersits death penalty procedures unconstitutional. F. Even If The Absence Of The Previously Addressed Procedural Safeguards Does Not Render California’s Death Penalty Scheme Constitutionally Inadequate To Ensure Reliable Capital Sentencing, Denying Them To Capital Defendants Like Appellant Violates Equal Protection Asnoted previously, the United States Supreme Court repeatedly has asserted that heightenedreliability is required in capital cases and that courts mustbe vigilant to ensure procedural fairness and accuracy in factfinding. 62. See Ala. Code, §§ 13A-5-46(f) and 47(d) (1982); Ariz. Rev. Stat. Ann., § 13-703.01(E) (2002); Ark. Code Ann., § 5-4-603(a) (Michie 1987); Colo. Rev. Stat., § 18-1.3-1201(2)(b)(II) and § 18-1.3-1201(2)(c) (2002); Conn. Gen.Stat. Ann., § 53a-46a(e) (West 1985); State v. White (Del. 1978) 395 A.2d 1082, 1090; Fla. Stat. Ann., § 921.141(3) (West 1985); Ga. Code Ann., § 17-10-30(c) (Harrison 1990); Idaho Code, § 19- 2515(8)(a)-(b) (2003); Ky. Rev. Stat. Ann., § 532.025(3) (Michie 1988); La. Code Crim. Proc. Ann., art. 905.7 (West 1993); Md. Ann. Codeart 27 § 413(i) (1992); Miss Code Ann., § 99-19-103 (1993); Mont. Code Ann., § 46-18-305 (1993); Neb. Rev. Stat. § 29-2521(2) and § 29-2522 (2002); Nev.Rev. Stat. Ann., § 175.554(3) (Michie 1992); N.H. Rev. Stat. Ann., § 630:5 (IV) (1992); N.M. Stat. Ann., § 31-20A-3 (Michie 1990); Okla.Stat. Ann., tit. 21, § 701.11 (West 1993); 41 Pa. Cons. Stat. Ann., § 9711 (1982); S.C. Code Ann. § 16-3-20(C) (Law. Co-op. 1992); S.D. Codified Laws. Ann., § 23A-27A-5 (1988); Tenn. Code Ann., § 39-13-204(g) (1993); Tex. Crim. Proc. Code Ann., § 37.07(c) (West 1993); Va. Code Ann., § 19.2- 264(D) (Michie 1990); Wyo.Stat. § 6-2-102(e) (1988). 199 (See, e.g., Monge v. California, supra, 524 U.S. at pp. 731-732.) Despite this directive, California’s death penalty schemeaffords significantly fewer procedural protections to defendants facing death sentences than to those charged with noncapital crimes. This differential treatmentviolatesthe constitutional guarantee of equal protection of the laws. Equal protection analysis begins with identifying the interest at stake. ChiefJustice Wright wrote for a unanimous Court that “personal liberty is a ‘fundamental interest, second only to life itself, as an interest protected under both the Californiaand the United States Constitutions.” (People v. Olivas (1976) 17 Cal.3d 236, 251.) “Aside from its prominent place in the Due Process Clause,the right to life is the basis of all other rights . . . It encompasses,in a sense,‘the right to have rights’ (Trop v. Dulles, 356 US. 86, 102 (1958)... .” (Commonwealth v. O’Neal (Mass. 1975.) 327 N.E.2d 662, 668.) In the case ofinterests identified as “fundamental,” courts have “adopted an attitude of active andcritical analysis, subjecting the classification to strict scrutiny.” (Westbrookv. Milahy (1970) 2 Cal.3d 765, 784-785.) A state may notcreate a classification scheme affecting a fundamental interest without showing that a compelling interest justifies the classification and that the distinctions drawn are necessary to furtherthat purpose. (Peoplev. Olivas, supra; Skinner v. Oklahoma (1942) 316 U.S. 535, 541.) The State cannot meet that burden here. In the context of capital punishment, the equal protection guarantees of the state and federal Constitutions must apply with greater force, the scrutiny of the challenged classification mustbe strict and any purportedjustification of the discrepant treatment must be even more compelling, because the interest at stake is not 200 simply liberty, butlife itself. The differences between capital defendants and noncapital felony defendants justify more, not fewer, procedural protections, in order to make death sentences morereliable. | In Argument XVII, supra, appellant explained whythefailure to provide intercase proportionality review violated his right to equal protection under the Fourteenth Amendment. Hereasserts that argument here with regard to the denial of other safeguards such as the requirement of written jury findings, unanimous agreementon violent criminal acts under Penal Code section 190.3, factor (b), and on other particular aggravating factors, and the disparate treatment of capital defendants set forth in this argument. The proceduralprotections outlined in these arguments, but denied capital defendants, are especially important in insuring the needfor reliable and “accurate factfinding in death sentencingtrials. (Mongev. California, supra, 524 U.S.at pp. 731-732.) Withholding themonthe basis that a death sentence is a reflection of community standards or any other groundis irrational andarbitrary and cannot withstand the close scrutiny that should apply when the most fundamental interest — life — is at stake. Forall the reasons set forth above, appellant’s death sentence must be reversed. /f // 201 XXL. APPELLANT CANNOT LAWFULLY BE EXECUTED BECAUSE THE ERRORS OCCURRING DURING THIS TRIAL AND HIS DEATH SENTENCE VIOLATES INTERNATIONAL LAW Appellant’s death sentence was unlawfully imposedin violation of international! law, covenants, treaties and normsthat bind the United States as the highest law of our land. This Court should review the arguments presentedin this brief in light of the international standardsfor a fairtrial. In particular, these standards affirm the right to life and require that if the death penalty is to be imposed, it must be supported by evidencethat is so clear that it leave room for no alternative explanation of the facts. The evidencein this case doesnotrise to this level, requiring that the death _ judgmentagainst appellant be reversed. A. This Court Must Follow and Apply International Law The United States Supreme Court has recognized that “Ti]nternational law is part of our law, and must be ascertained and administered by the courts ofjustice of appropriate jurisdiction, as often as questions of right depending uponit are duly presented for their determination.” (The Paquete Habana (1900) 175 U.S. 677, 700; see also United States v. Pink (1942) 315 U.S. 203, 230-231[“state law must yield whenit is inconsistent with or impairs the policy or provisionsofa treaty or of an international compact or agreement”); Murray v. Schooner Charming Betsy (1804) 6 U.S. (2 Cranch) 64, 118 [courts must interpret domestic law consistently with international law] .) Thus, international law has provided an importantbasis for determining how our own constitution is to be interpreted, including the evolving standards that inform the interpretation of the Eighth Amendment’s prohibition against cruel and unusual 202 punishment. (See Roper v. Simmons (2005) __-ULS. __ [125 S.Ct. 1183,1198-1200] {citing international abolition ofjuvenile death penalty]; Atkins v. Virginia (2002) 536 U.S. 304, 316, fn . 21 [citing practices of the world community in prohibiting death penalty for mentally retarded offenders]; Trop v. Dulles (1958) 356 U.S.86, 102 [referring to unanimity of the “civilized nations”].) International law is determined by both treaty obligations and customary practices that define the law of nations. (Siderman de Blakev. Republic ofArgentina (9th Cir. 1992) 965 F.2d 699, 715 [content of international law determined by reference “to the customs and usages of civilized nations, and, as evidenceof these, to the works ofjurists and commentators”; Rest.3d Foreign Relations Law of the UnitedStates, § 111(1) [International law andinternational agreements of the United _ States are law of the United States and supremeover the law of the several States”]; and Jd. at § 702, commentc [“[T]he customary law of human rights is part of the law of the United States to be applied as such bystate as well as federal courts”’].) Eventreaties and international agreements that are not ratified by a particular country maystill be binding as demonstrating the customary law of nations. “International agreementscreate law for the states parties thereto and mayleadto the creation of customary international law when such agreements are intended for adherenceby states generally and are in fact widely accepted.” (/d., at § 102; see also North Sea Continental Shelf Cases, 1969 I.C.J. 3 [state practices may be deduced from treaties, whether ratified or not]; Connie de la Vega, The Right to Equal Education: Merely a guiding Principle or Customary International Legal Right (1994) 11 Harv. Blackletter J. 37, 41; Rest.3d Foreign Relations Law of the United States, § 203 324 [“an agreement among a large numberofparties may giverise to a customary rule of international law binding on non-party states”’].) Courts in this country have acknowledged and followed the principles establishing the importance of international law. (See, e.g., First Nat'l City Bank v. Banco Para el Comercio Exterior de Cuba (1983) 462 U.S. 611, 623 [“[the claim] arises under international law, which, as we have frequently reiterated is part of our law”; Banco Nacional de Cubav. Sabbatino (1964) 376 U.S. 398, 423 [“[I]t is, of course, true that United | States courts apply international law as part of our own in appropriate circumstances”’].) Moreover, in the area of human rights, numerous courts have recognized and applied international law. (See, e.g., Jama v. United States Immigration and Naturalization Service (D.N.J. 1998) 22 F. Supp. 2d 353; Abebe-Jira v. Negewo (11th Cir. 1996) 72 F.3d 844, 848; Kadic Vv. Karadzic (2d Cir. 1995) 70 F.3d 232, 246 ; Hilao v. Marcos (9th Cir. 1994) 25 F.3d 1467, 1474-1476; Filartiga v. Pena-Irala (2d Cir. 1980) 630 F.2d 876, 887.) | The body ofinternational law that governs the administration of capital punishmentby the State of California and the United States includes, but is not limited to, the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention Against All Formsof Racial Discrimination; the European Convention for the Protection of Human Rights and Fundamental Freedoms; and, the Vienna Convention on the Law of Treaties. Decisions of the Human Rights Committee (established under 204 ICCPR,article 28) and other bodiesinterpreting these treaties provide authoritative guidance for this Court. The purposeof these and othertreaties is to require signatory nations, including the United States, to protect the rights of all people, including appellant and others who have been accused ofcapital crimes. Humanrights treaties are different from othertreaties in that parties to humanrights treaties agree to protect individuals within their jurisdictions, while parties to other treaties agree how to act with respect to each other. The “object and purpose”rule keepsstate parties from eliminating important aspects of humanrights treaties by making reservations to them, leaving its own citizens as well as other state parties with no recourse. “(T]he true beneficiaries of the agreements are individual humanbeings,the inhabitants of the contracting states.” (Rest.3d Foreign Relations Law of the United States, § 313, reporter’s notes p. 184.) Accordingly,the rules found in these treaties and the customary law that they establish are directly enforceable in U.S. courts and are available as an alternate basis for grantingrelief. (See Jordan J. Paust, “Customary International Law and Human Rights Treaties are Law of the United States” (1999) 20 Mich.J. Int’ L. 301, 325-327.) | | Accordingly,this Court must give effect to international law established through treaty provisions and customary application, regardless of whetherit is interpreted as an independent requirementoras part ofthe “evolving standards” of the Eighth Amendment. (See Atkinsv. Virginia, supra, 536 U.S at p. 312.) Under either interpretation, international law requires that both the guilt and penalty judgments against appellant must be reversed. 205 B. The Right to Life The “object and purpose”of the International Covenantis to bestow and protect inalienable humanrights to citizens: “Every humanbeing has | the inherent rightto life. This right shall be protected by law. No oneshall be arbitrarily deprivedoflife.” (Article 6, para. 1, International Covenant on Civil and Political Rights, June 8, 1992, 999 U.N.T.S. 171.) The right to life is a fundamental human right which is expressed throughout the International Covenant. The death penalty clearly contravenesthe “right to life.” The use of the death penalty in this country is increasingly at odds with other nations: The United States stands as one of a small numberofnations that regularly uses the death penalty as a formof punishment... . [and] with China, Iran, Nigeria, Saudi Arabia, and South Africa [under the former apartheid regime] as oneof the few nations which has executed a large number of persons. ... Of 180 nations, only ten, including the United States, account for an overwhelming percentage ofstate ordered executions. (Soering v. United Kingdom: Whetherthe Continued Use ofthe Death Penalty in the United States Contradicts International Thinking (1990) 16 Crim. and Civ. Confinement 339, 366; see also Ring v. Arizona (2002) 536 U.S. 584, 618 (cone. opn. of Breyer, J.) [other nations have abolished capital punishment]; People v. Bull (1998 Ill.) 705 N.E.2d 824,dis. opn. of Harrison, J.) | Article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that 63. Sincethis article was published in 1995, South Africa has ~ abandoned the death penalty. 206 abolition is desirable. (See Second Optional Protocol to the International Covenant on Civil & Political Rights, Aiming at the Abolition of the Death Penalty. Adopted by the General Assembly, December 15, 1989.) The Supreme Court of Canadahasplaced the use of the death penalty in the United States for ordinary crimesinto an international context: Amnesty International reports that in 1948, the year in which the Universal Declaration of Human Rights was adopted, only eight countries were abolitionist. In January 1998,the Secretary-General of the United Nations, in a report submitted to the Commission on Human Rights (U.N. Doc. E/CN.4/1998/82), noted that 90 countries retained the death penalty, while 61 weretotally abolitionist, 14 (including Canada atthe time) were classified as abolitionist for ordinary crimes and 27 were considered to be abolitionist de facto (no executions for the past 10 years) for a total of 102 abolitionist countries. At the present time, it appears that the death penalty is now abolished (apart from exceptional offences such as treason) in 108 countries. These generalstatistics mask the importantpoint that abolitionist states includeall of the major democracies except someof the United States, India and Japan... . According to statistics filed by Amnesty International onthis appeal, 85 percent of the world’s executions in 1999 were accounted for by only five countries: the United States, China, the Congo, Saudi Arabia and Iran. (MinisterofJustice v. Burns (2001) 1 S.C.R. 283 [2001 SCC 7], §. 91.) In particular, the nations of Western Europe are uniformin not using the death penalty (see, e.g., Stanford v. Kentucky (1989) 492 U.S. 361, 389 (dis. opn. of Brennan, J.); Thompson v. Oklahoma, supra, 487 U.S. at p. 830 (plur. opn. of Stevens, J.)); a// Western European nations have now abolished the death penalty. (See Cokley, Whatever Happened to That Old Saying “Thou Shalt Not Kill?”: A Pleafor the Abolition ofthe Death Penalty (2001) 2 Loy.J. Pub. Int. 67, 119-120.) It should be noted that 207 appellant is a citizen of Mexico (CT 1185 [probation report]), a country whichhasalso abolished the death penalty. That uniformity of view among Western Europeannationsis especially important because our Founding Fathers lookedto those countries for the “law of nations,” as models of the lawsof civilized nations, and for the meaning of termsin the Constitution. ‘““When the United States became an independentnation, they became,to use the language of Chancellor Kent, ‘subject to that system of rules which reason, morality, and custom had established amongthe civilized nations of Europe as their public law.’” (Miller v. United States (1871) 78 U.S.[11 Wall.] 268, 315 (dis. opn. of Field, J.), quoting 1 Kent’s Commentaries 1; Hilton v. Guyot, supra, 159 U.S.at p. 227; Sabariego v. Maverick (1888) 124 U.S. 261, 291-292.) International law must be used in determining our constitutional standards. “‘Cruel and unusual punishments’ and ‘due process of law’ [are not] static concepts whose meaning and scope weresealedat the time of their writing. They were designed to be dynamic and gain meaning through application to specific circumstances, many of which were not contemplated by their authors.” (Furman v. Georgia, supra, 408 U.S.at p. 420 (dis. opn. of Powell, J.).) The Bighth Amendmentin particular “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles, supra, 356 U.S. at p. 100; Roper v. Simmons, supra, 125 S.Ct. at pp. 1198-1200 [drawing from the practices of the international community]; Atkins v. Virginia, supra, 536 USS. at p. 316, fn . 21 [citing practices of the world community in determining 8th Amendment requirements].) ~ 208 Thus, constitutionally “cruel and unusual punishment”is not limited solely to whateverviolated the standards of decencyofthe civilized nations of Europein the 18th century; it encompasses whatever violates evolving standards of decency. Eighth Amendmentjurisprudence must recognize that the standards of decency of the nations of Europe have evolved, and in so doing re-examine the use of the death penalty in this country. These standards should now prohibit using a form of punishmentnot recognized by several of our states and the civilized nations of Europe, or used by only a handful of countries throughout the world, including totalitarian regimes whose“standards of decency” are supposedly antithetical to our own. Assuming arguendothat capital punishmentitself is not contrary to international norms of human decency, using it as regular punishment for substantial numbers of crimes, rather than as an extraordinary punishment for extraordinary crimes, certainly is. The International Covenant on Civil and Political Rights, article 6(2), states: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes... .” The Human Rights Committee established under this treaty states that this section must be “read restrictively to mean that the death penalty should be a quite exceptional measure.” (General comment, International Covenant on Civil and Political Rights. Article 6.) Since the law of nations considers it improper to use capital punishmentas regular punishment, it is unconstitutional in this country because international law is a part of our law. (Hilton v. Guyot, supra; see also Jecker, Torre & Co. v. Montgomery(1855) 59 U.S. [18 How.] 110, 112.) 209 C. The Evidencein this Case Does Not Meetthe Standardsof International Law That Is Necessary Before a Death Verdict May Be Imposed Even assumingthat the death penalty may be imposed,international law imposesa particularly high standard that must be metin such cases. The standard adopted by the United Nations Economic and Social Council allows a death verdict only if there is clear and convincing evidence “leaving no roomforalternative explanation of the facts.” (“Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty” (1984) ECOSOCRes. 1984/50, endorsed by the General Assemblyin res. 39/118 of Dec 14, 1984, J 4; see also A/bert Wilson v. Philippines, United Nations Human Rights Committee, Communication No. 868/1999, adopted Oct. 30, 2003, p. 5 [applying standard]; European Union, “Policy Towards Third Countries on the Death Penalty,” General Affairs Council, June 29, 1998 [adopting standard]; Accordingly, this standardis part of the international customary and decisional law that this Court should apply. Because the record against appellant does not preclude an alternative explanation of the facts, the death penalty must be reversed. Asdiscussed in Argument IX [insufficient evidence], there was room in this case for an alternative explanation of the facts. The case against appellant was largely based on his ambiguous statement to Alma Cruz; speculation about appellant’s motive; and, the assumption that he must have planned the crime with his brother and Uribe. Appellant’s role in the gang could explain his ambiguous statements to Cruz and his telephone calls to various gang members. Any anger that he expressed about Melinda’s testimony was notlinked to a threat of violence against her. Appellant’s brother certainly could have been affected by this anger and taken matters into his own hands. Under these circumstances, international 210 law does not permit the death verdict to be imposed. (Albert Wilson v.. Philippines, United Nations Human Rights Committee, Communication No. 868/1999, supra, at p. 5.) D. The Right to an Impartial Tribunal Appellant had a right to be tried before an impartial tribunal. Underinternational law, the principle of impartiality, which applies to each individual case, demandsthat each of the decision-makers, including the jury, be unbiased. (See Collinsv. Jamaica (1991) IARL 51, Communication No 240/1987 [impartial juries]; see also ICCPR,article 14(1) [criminal defendants entitled to fair hearing by impartial tribunal].) The right to an impartial tribunal is fundamental. The Human Rights Committee hasstated thatit “is an absolute right that may suffer no exception.” (Gonzdlez del Rio v. Peru, (Communication No. 263/1987), 28 October 1992, Report of the HRC,vol. II, (A/48/40).) “The international standard onthe issue of ‘judge and juror impartiality’ employs an objective test based on ‘reasonableness, and the appearance of impartiality.’” (William Andrewsv. United States, Report No 57/96, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 (1997) at § 159.) Under this standard,“justice must not only be done, it must also be seen to be done.” (European Court, Delcourt 64. The international standardsrefer to “tribunals” rather than courts. The right encompasses both juries and judges. For example,the European Court hasdefined a tribunal as a body whichexercises judicial functions, established by law to determine matters within its competence on the basis of rules of law and in accordance with proceedings conducted in a prescribed manner. (See Sramek Case, 22 October 1984,84 Ser. A 17, para. 36; Le Compte, Van Leuven and De Meyere Case, 23 June 1981, 43 Ser. A 24, para. 55.) Case, 17 January 1970, 11 Ser. A 17, §31.) That the international standard is to be applied without exception should compel this Court to reverse the - judgment without regard to standards of harmless error. _ In this case, the jury selection procedures rendered appellant’s trial fundamentally unfair and violated appellant’s right to an impartial jury under international standards. In particular, the trial court refused to question potential jurors about racial or ethnic bias. (Argument I.) Asa result, appellant had no meansto determineif potential jurors may have been biased against him asa result of his ethnic and racial background, particularly since the victim in this case was Caucasian. The impartiality of the jury was also compromised bythe prosecutor’s improper excusal of African-Americans during jury selection. (ArgumentII.) That the prosecutor used racially-related reasons affected the impartiality of the tribunal by denying appellant a jury drawn from fair cross-section of the community. Accordingly, this Court should find that the jury selection process used in this case violated international standards — for an impartial tribunal. E. Protection Against Prosecutorial Misconduct A defendant in a criminalcase has the right to expectthat a prosecutor will not exceed the boundaries of proper conduct. This rightis protected by the due process guarantees of the state and federal Constitutions, but must also be interpreted through the standards set by customary international law. The Guidelines on the Role ofProsecutors were adopted by consensus at the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders in 1990 and welcomed by the UN General Assembly. The Guidelines were adopted in an effort to.assist governments 212 in “securing and promotingthe effectiveness, impartiality and fairness of prosecutors in criminal proceedings.” The Guidelines provide that prosecutors are to “perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold humanrights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.” This Court should find that these standards are part of the customary law that forms part of the law of the nations. The prosecution in this case failed to uphold these international standards in its conduct throughoutthe trial and in its closing argumentto the jury. The prosecutor violated these standards when his opening statementreferred to a three-way conversation between appellant, Ricardo, and Uribe, despite having enteredinto a stipulation that forbade this reference. (See Argument VI.) The prosecutor used racially-related criterion to select the jury in this case. (See ArgumentII.) During his closing argumentin the guilt phase, the prosecutor improperly denigrated appellant’s counsel and arguedfacts that were not in evidencebefore the jury, inviting the jury to assumethat appellant had plannedthe crime with Ricardo and Uribe. (See Argument XIII) During the penalty phase, the prosecutor improperly arguedthat the nature of the crimeitself demanded the death penalty in order to preserve the rule of law andsetthe jury to be the personal guardian of both the witnesses in this case and society as a whole. (See Argument XIV.) These examples demonstrate the atmosphere that the prosecutor created duringthis trial violated international standards of conduct. This Court should accordingly reverse the judgmentin this case. F. The Right to a Fair Hearing The right to a fair hearing lies at the heart of the conceptofa fair trial that is protected by both state and federal constitutional due process guarantees and international standards. Under international law, everyone is entitled to a fair hearing. This right encompassesall the procedural and other guarantees offair trial laid down in international standards, butis widerin scope. It includes compliance with national procedures, provided they are consistent with international standards. Despite fulfilling all national andinternational procedural guarantees, however,a trial maystill not meetthe criterion of a fair hearing. (Article 10 of the Universal Declaration; Article 14(1) of the ICCPR,; Article 6(1) of the European Convention; Article XXVI of the American Declaration; Article 8 of the American Convention.) The right to a fair hearing in criminaltrials is specified by a number of concrete rights that are minimum guarantees. The observance of each of these guarantees doesnot, in all cases and circumstances, ensure that a hearing has been fair. The right to a fair trial is broader than the sum ofthe individual guarantees, and depends on the entire conductofthetrial. (See Human Rights Committee General Comment 13, para. 5; Advisory Opinion of the Inter-American Court of Human Rights, OC-11/90, Exceptions to the Exhaustion of Domestic Remedies, 10 August 1990, Annual Report of the Inter-American Court, 1990, OAS/Ser L./V/III.23 doc.12, rev. 1991, at 44, para. 24.) In an advisory opinion sought by Mexico concerningfailure to adhere to the Vienna Convention, the Inter-American Court on Human Rights has found that states may impose the death penalty only if they 214 rigorously adhereto the fair trial rights set forth in the ICCPR. (OC-16/99, Inter-Am. Ct. H.R. (October 1, 1999).) The Human Rights Committee has held that when state violates an individual’s due process rights under the ICCPR,it may not carry out his execution. (See, e.g., Johnson v. Jamaica, No. 588/1994 (1996), H.R. Comm.para. 8.9 [delay of 51 months between conviction and dismissal of appealto be violation of ICCPRart. 14, para. 3(c) and 5, and reiterating that imposition of a death sentence is prohibited where the provisions ofthe ICCPRhavenot been observed]; Reid v. Jamaica, No. 250/1987, H.R. Comm.para. 11.5 [‘[T]he imposition of a sentence of death uponthe conclusionofa trial in which the provisions of the Covenant have not been respected constitutes[. . .] a violation ofarticle 6 of the Covenant.”]; Report of the Human Rights Committee, GAOR, 45th Session, Supplement No. 40, Vol. IL (1990), Annex IX,J, para. 12.2, reprinted in 11 Hum.Rts. L.J. 321 (1990) [‘‘in capital punishmentcases,the duty of States parties to observe rigorously all the guaranteesfora fair trial. . . is even more imperative”’].) Appellant was denied his right to a fair hearing throughouthistrial, as shown by the cumulative effect of all claims raised in this brief, which are incorporated herein by reference. In particular, the trial court allowed the prosecutor to break the stipulationthat had prohibited references to a three-way conversation between appellant, Ricardo, and Uribe. This evidence invited the jury to speculate that appellant must have planned the crime with these individuals, despite any evidence to establish this. (Argument IV.) Thetrial court also admitted inflammatoryand prejudicial evidence against appellant in violation of California’s evidentiary protections. (Argument V [Ricardo’s statement]; Argument VI [pager message]; Argument X [victim’s diary].) Its instructionsto the jury 215 misinformedthe jury on key points of law. (Argument XI [motive]; Argument XII [consciousness of guilt].) Under these circumstances, appellant’s trial failed to meet the minimum guaranteesof fairness required by international law. The judgment against appellant must be reversed. // / XXII. CUMULATIVE ERROR REQUIRES THAT THE GUILT AND PENALTY VERDICTS BE REVERSED Even assumingthat noneofthe errors identified by appellantis prejudicial standing alone, the cumulative effect of these errors undermines the confidence in the integrity of the guilt and penalty phase proceedings. (Harris v. Wood(9th Cir. 1995) 64 F.3d 1432, 1438- 1439; Makv. Blodgett (9th Cir. 1992) 970 F.2d 614, 622; United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1475-1476; People v. Hill (1998) 17 Cal.4th 800, 844-845; People v. Holt (1984) 37 Cal.3d 436, 459.) Even whereno single error when examined inisolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may be suchthat reversal is required. (See Cooperv. Fitzharris (9th Cir. 1978) 586 F.2d 1325, 1333 (en banc) (“prejudice may result from the cumulative impact of multiple deficiencies”); Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [cumulative errors may so infect “the trial with unfairness as to makethe resulting conviction a denial of due process”]; Greer v. Miller (1987) 483 U.S. 756, 764.) Reversalis required unless it can be said that the combined effectofall of the errors, constitutional and otherwise, was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24; People v. Williams (1971) 22 Cal.App.3d 34, 58-59 [applying the Chapmanstandard to thetotality of 65. Indeed, where there are a numberoferrorsattrial, “a balkanized, issue-by-issue harmlesserror review”is far less meaningful than analyzing the overall effect ofall the errors in the context of the evidence introducedattrial against the defendant. (United Statesv. Wallace, supra, 848 F.2d at p. 1476.) 217 the errors whenerrors of federal constitutional magnitude combined with other errors].) Appellant’s trial was fundamentally flawed becauseit was based on improper evidence that encouraged the jury to speculate that he must have committed the crime. The jury wasled through a series of erroneous evidentiary matters that included testimony about a three-way phone conversation with appellant, Ricardo, and Uribe(ArgumentIV); Ricardo’s statementthat his act was donefor his brother (Argument V); the “187” message on the victim’s page (Argument VI); and, testimonythat the victim wasfrightened (ArgumentVIII). Each of these contributed to speculation that appellant must have planned the crime. Thetrial court erroneously allowed the excerpts from the victim’s diary and conversations with her teacher to be used against appellant. (Argument X.) Thetrial court did not permit appellant’s to cross-examine the victim’s mother on several key points. (Argument VII.) It erroneously instructed thejury on motive and consciousnessof guilt. (Arguments X]I, XIU.) It allowed the prosecutor to engage in inflammatory argumentthat affected the jury’s guilt deliberations. (Argument XIII.) The cumulative - effect of these errors so infected appellant’s trial with unfairness as to make the resulting convictions a denial of due process (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 & 15; Donnelly v. DeChristoforo, supra, 416 U.S.at p. 643), and appellant’s convictions must therefore be reversed. In addition, the death judgmentitself must be evaluated in light of the cumulative error occurring at both the guilt and penalty phases of appellant’s tnal. (See People v. Haves (1990) 52 Cal.3d 577, 644 [court considers prejudice of guilt-phase instructional error in assessing that in penalty phase].) In this context, this Court has expressly recognized that 218 evidence that may otherwisenot affect the guilt determination can have a prejudicial impact on the penalty trial. Conceivably, an error that we would hold nonprejudicial on the guilt trial, if a similar error were committed on the penalty trial, could be prejudicial. Where, as here, the evidence of guilt is overwhelming, even serious error cannot besaid to be such as would, in reasonable probability, have altered the balance between conviction and acquittal, but in determining the issue of penalty, the jury, in deciding betweenlife imprisonment and death, may be swayed one wayor another by any piece of evidence. If any substantial piece or part of that evidence was inadmissible, or if any misconduct or other error occurred, particularly where, as here, the inadmissible evidence and othererrors directly related to the character of appellant, the appellate court by no reasoning process can ascertain whether there is a ‘reasonable probability’ that a different result would have been reached in absenceof error. (People v. Hamilton (1963) 60 Cal.2d 105, 136-137; see also People v. Brown (1988) 46 Cal.3d 432, 466 [error occurring at the guilt phase requires reversal of the penalty determinationif there is a reasonable possibility that the jury would have rendered a different verdict absent the error]; In re Marquez (1992) 1 Cal.4th 584, 605, 609 [an error may be harmlessat the guilt phase but prejudicial at the penalty phase].) Other courts similarly have recognized that “what may be harmless error in a case with less at stake becomes reversible error when the penalty is death.” (Urving v. State (Miss.1978) 361 So.2d 1360, 1363.) Accordingly, even if the individual errors are harmless on their own,the cumulative effect of these errors upon the penalty verdict must be examined with special caution. (See Burger v. Kemp (1987) 483 U.S. 776, 785 [“duty to search for constitutional error with painstaking care is never more exacting thanit is in a capital case”].) 219 ‘During the penalty phase,thetrial court failed to instruct appellant’s - jury after it became aware that appellant was shackled. (Argument XV.) It permitted the prosecutor to engage in emotional and unfounded argument that urged the jury to impose death in order to protect Sandra Ramirez, Alma Cruz, and society as a whole. (Argument XIV.) It instructed the jury to disregard all the guilt phase instructions and did not provide any further instructions on important matters affecting their consideration of penalty phase evidence. (Argument XVI.) This Court can have no confidence in the reliability of a verdict in light of the combinedeffect of all the errors in this case, constitutional and otherwise. It cannot be satisfied that the errors were harmless beyond a reasonable doubt. (Chapman y. California (1967) 386 U.S. 18, 24; People v. Williams (1971) 22 Cal.App.3d 34, 58-59 [applying Chapman standard tothe totality of the errors].) Accordingly,the judgment mustbe reversed. 220 CONCLUSION Forall the reasons stated above, the judgmentthis case must be reversed. DATED: May 24, 2005 Respectfully submitted, MICHAEL J. HERSEK State Public Defender Alf7A. ARNOLD ERICKSON Deputy State Public Defender 221 DECLARATION OF SERVICE Re: People v. Juan Manuel Lopez No. S073597 L.A. Superior Ct. No.: PA023649-01 I, GLENICE D. FULLER,declare that I am over 18 years of age, and not a party to the within cause; my business address is 221 Main Street, 10th Floor, San Francisco, California 94105. A true copyof the attached: APPELLANT’S OPENING BRIEF on each of the following, by placing samein an envelope (or envelopes) addressed (respectively) as follows: Office of the Attorney General Attn: Theresa A. Patterson 300 S. Spring St., 5" Floor Los Angeles, CA 90013 Juan Manuel Lopez (Appellant) Each said envelope was then, on May 25, 2005, sealed and deposited in the United States Mail at San Francisco, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty that the foregoingis true and correct. Executed on May 25, 2005, at San Francisco, California._ af CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE 36(B)(2)) I, Arnold Erickson, am the Deputy State Public Defender assigned to represent appellant, Juan Manuel Lopez,in this automatic appeal. | conducted a word countofthis brief using our office’s computer software. Onthebasis of that computer-generated word count, I certify that this brief is 60,780 wordsin length excludingthe tables and certificates. AMG Arnold Erickson Dated: May 24, 2005