PEOPLE v. LOPEZ (JUAN M.)

Appellant’s Reply Brief

Cal.July 31, 2006

SUPREME COURT COPY COPY (Los Angeles Superior Court No. PA023649) IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, SUPREME COURT v FILED JUAN MANUEL LOPEZ | JUL 31 2006 Defendant and Appellant. ~~ Frederick K.Ohirich Clerk Deputy APPELLANT’S REPLY BRIEF On Automatic Appeal from a Judgment of Death Rendered in the State of California, Los Angeles County (HONORABLE MEREDITH C. TAYLOR, JUDGE, of the Superior Court) MICHAELJ. HERSEK State Public Defender ARNOLD ERICKSON Deputy State Public Defender State Bar No. 148358 - 221 Main Street, 10th Floor San Francisco, California 94105 | Telephone: (415) 904-5600 OelihiPERly Attomeys for Appellant TABLE OF CONTENTS Page INTRODUCTION 2.2.0...cenene n tne net nenes 1 I. THE TRIAL COURT IMPROPERLY LIMITED VOIR DIRE OF PROSPECTIVE JURORS ......... 0. ccc cent eee n eens 2 A. Appellant’s Claims on Appeal Were Not Waived ................005. 2 B. Voir Dire on Racial Prejudice was Critical to the Guilt and Penalty Phases ....... 0... cece cc ccc eect n ene ene 4 Il. THE TRIAL COURT IMPROPERLY DENIED APPELLANT’S MOTION BROUGHT UNDER PEOPLE v. WHEELER AND BATSON v. KENTUCKY .. 1... cece cettenet enneanes 9 A. The Trial Court Erred in Finding That There Was No Prima Facie Case of Discrimination ............ 0.02.0 cee ee eee eee 9 B. The Prosecutor’s Stated Reason Did Not Provide a Legitimate Basis for a Peremptory Challenge .................0005. 13 Il. APPELLANT WAS NOT PRESENT DURING TWO PORTIONS OF HIS TRIAL IN VIOLATION OF HIS STATUTORY AND CONSTITUTIONAL RIGHTS 2.1.0... ceecee eects 17 IV. THE TRIAL COURT IMPROPERLY ALLOWED THE PROSECUTOR TO PRESENT EVIDENCEOF A THREE-WAY CALL WITH RICARDO LOPEZ .............2..02 0.0000 20 A. Testimony About a Three-Way Telephone Call Violated the Stipulation 2... 0...cecetenet ene nnes 20 B. The Evidence Was More Prejudicial Than Probative ................ 24 VI. VII. VI. IX. TABLE OF CONTENTS (CONT’D) THE TRIAL COURT IMPROPERLY ALLOWED A STATEMENT ATTRIBUTED TO APPELLANT’S CO-DEFENDANTTO BE USED AGAINST APPELLANT . 2.2.0... 2.0 cece een ete eee eens A. When Used Against Appellant, the Statement was Hearsaythat Violated His Right to Confront the Witness Against Him ........ THE TRIAL COURT ERRONEOUSLY ALLOWED THE PROSECUTOR TO PRESENT INFLAMMATORY HEARSAY ABOUT A MESSAGEON THE VICTIM’S PAGER ..............05. THE TRIAL COURT IMPROPERLY RESTRICTED APPELLANT’S CROSS-EXAMINATION OF THE VICTIM’S MOTHER ............ A. The Trial Court Improperly Prohibited Appellant from Questioning About the Victim’s Pattern of Running Away from Home ........ 0.0... cece eee eee nn eeues B. The Trial Court Improperly Excluded Questions About the Circumstances Under Which the Victim Returned Home ...... C. The Trial Court Should Have Permitted Appellant to Question Carmody About Her State of Mind Regarding Her Daughter’s Gang Associations ..... 0.0... cee eect eee e ene eens D. Reversal Is Required .... 0.0... eeeeee eens THE TRIAL COURT IMPROPERLY PERMITTED AN INVESTIGATING OFFICER TO TESTIFY ABOUT THE VICTIM’S DEMEANOR WHEN SHE TESTIFIED AT THE PRELIMINARY HEARING REGARDING THE KIDNAPING CHARGE 2.0.0... . eeeeeebene teen eee en eee THE EVIDENCE WASINSUFFICIENT TO SUPPORT A VERDICT OF FIRST DEGREE MURDER ........ 0.0... eee eee eee eens il .. +. 26 .... 26 wee 29 er) a) 11+. 34 1... 36 .... 36 1... 38 oe. 43 XI. XII. XI. XIV. TABLE OF CONTENTS (CONT’D) THE TRIAL COURT ERRED IN ADMITTING MELINDA’S DIARY AND STATEMENTS THAT SHE HAD MADE TO A TEACHER 2.0... 0. cececcc cence ett tee nee ens A. The Statements were not Prior Consistent Statements ........... B. The Forfeiture Doctrine Does not Bar Appellant’s Claims under the Confrontation Clause ........... 000 cc ecu eeeeeeueee C. Reversal is Required ....... 0... cece cee eee te cee eee eens THE TRIAL COURT’S INSTRUCTIONS IMPROPERLY ALLOWED THE JURY TO FIND GUILT BASED UPON MOTIVE ALONE....... THE CONSCIOUSNESS OF GUILT INSTRUCTIONS WERE IMPERMISSIBLY ARGUMENTATIVE AND ALLOWED THE JURY TO FIND IMPROPER INFERENCESTO ESTABLISH APPELLANT?’S GUILT 1.0...eeeeeetn eens THE PROSECUTOR COMMITTED MISCONDUCT DURING HIS CLOSING ARGUMENT AT THE GUILT PHASE BY IMPROPERLY ATTACKING APPELLANT’S COUNSEL AND LINKING APPELLANT TO EVIDENCE THAT WAS ADMITTED ONLY AGAINST APPELLANT’S BROTHER ..............0000 00. A. The Prosecutor Accused Appellant’s Counsel of Lying .......... B. The Prosecutor Argued Facts Not in Evidence ................. THE PROSECUTOR COMMITTED MISCONDUCT DURING PENALTY PHASE ARGUMENT IMPROPERLY STATED THAT THE CRIME ALWAYS REQUIRED A DEATH SENTENCE AND BY PRESENTING AN EMOTIONAL PLEA TO THE JURORS RECALLING THE CRY FOR VENGEANCE ON THE PART OF THE VICTIM’S FAMILY ....... 0... cee eee eee eee ill 12 47 1 47 1... 30 12. D2 1... 33 1.2. 35 1... 38 1... 58 .... 60 w+. 63 TABLE OF CONTENTS (CONT’D) Page A. The Prosecutor Improperly Argued that the Death Sentence was Neededto Protect the Witnesses in this Case and to Preserve the Rule of Law... 0...eeeteens 63 1, Prosecutorial misconduct was not waived ............. 00005. 64 2. The argument inflamedthe jury and diverted them from their proper task ...... 0... eeeeee eee nes 65 3. The argumentalso placed the jury in the role as the guardian of society ..... 0... ccc cece ee eens 66 B. The Prosecutor Improperly Contrasted Life in Prison with the Victim’s Family Visiting the Grave Site ................... 67 C. Reversal is Required ...... 00... . eee eee eee enn 69 XV. THE TRIAL COURT FAILED TO INSTRUCT THE JURORS THAT THEY WERE TO DISREGARD APPELLANT’S RESTRAINTS IN REACHING THE PENALTY VERDICT ............... 71 XVI. THE TRIAL COURT’S PENALTY PHASE INSTRUCTIONS FAILED TO PROVIDE APPROPRIATE GUIDANCE TO THE LO)573 XVII. CALIFORNIA’S DEATH PENALTY INSTRUCTIONS, STATUTE, AND PROCEDURES ARE FLAWEDIN SEVERAL RESPECTS 2.0... cece ccceen nent e tenet e ene nene 76 XXI. APPELLANT’S DEATH SENTENCE VIOLATES INTERNATIONAL LAW ...... 00.0 cece cece eee e teen eee eeaes 77 XXII. CUMULATIVE ERROR REQUIRES THAT THE GUILT AND PENALTY VERDICTS BE REVERSED ............... 000002000, 81 iv TABLE OF CONTENTS (CONT’D) Page CONCLUSION 2.0...cence cet e een eee eee eeeenees 82 TABLE OF AUTHORITIES Pages FEDERAL CASES Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862 2.0...ec ccc ccc ences 81 Arizona v. Fulminante (1991) 499 US. 279 0.cececence teenie eens 75 Asakura v. Seattle (1924) 265 U.S. 332 2.cccee eee n enn eas 78 Atkins v. Virginia (2002) 536 U.S. 304...cccete eee teenie eens 79 Batson v. Kentucky (1986) 476 US. 79 0.cecence tect ne nn ees 9 Berger v. United States (1935) 295 US. 782.eeeen e etn n ene eens 60 Boyd v. Newland (9th Cir., June 262006)= F.3d_—_—« [2006 WL 1728077] ........... 15 California v. Green (1970) 399 ULS. 149 2.ceceteen ene eae 40 Castaneda v. Partida (1977) 430 US. 482 2.cccteen eee n eens 6 Chapmanv. California (1967) 386 US. 1820.nens passim Cook v. United States (1933) 288 U.S. 1022.ceetn en ene enes 79 vi TABLE OF AUTHORITIES (CONT’D) Pages Davis v. Washington (2006). US. 126 S.Ct. 2266 0...cee51 Diaz v. United States (1912) 223 U.S. 442 .enceene eens 51 Dyer v. MacDougall (2d Cir.1952) 201 F.2d 265 2...keetec eee ee eas 39 Eddings v. Oklahoma (1982) 455 U.S. 1040.cccnet n eens 74 Ham vy. South Carolina (1973) 409 U.S.524 Loececee een enas 4,8 Hance v. Zant (11th Cir. 1983) 696 F.2d 940 00...ceeeens 67 Hernandez v. New York (1991) 500 U.S. 352cenceeee teens 13 Johnson y. California (2005) 545 U.S. 162 2...ceeeee een eens 9,10 Johnson v. Vasquez (9th Cir. 1993) 3 F.3d 1327 2...ceeneces 14 Kolovrat v. Oregon (1961) 366 U.S. 1870.cence teen eens 78 Lawrence v. Texas (2003)539 U.S. 558 oocccte nee e eet n teenies 79 Madrid v. Gomez (N.D.Cal.1995) 889 F.Supp. 1146 2.0...cece68 Vil TABLE OF AUTHORITIES Pages Maryland v. Craig (1990) 497 U.S. 836 0...ceecnet ne eee ne nees 38 Miller-El v. Dretke (2005) 545 U.S. 231 0.ccce eee eee nes 11,14, 15 Ohio v. Roberts (1980) 448 U.S. 56... 0.ccceee n nee ene eee 27 Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083 2...eceee ene 12, 14 Payne v. Tennessee (1991) 501 U.S. 808 2.cenence teen nes 19 Richardson v. Marsh (1987) 481 U.S. 200 2...cceee nent e een eee 22 Ristaino v. Ross (1976) 424 ULS. 589ocee een n eens 4 Rochin v. California (1952) 342 U.S. 165 0.eeeet tenet nee nes 79 Roperv. Simmons (2005) 543 U.S. 551...cecete nent n eee nes 79 Sanchez-Llamas v. Oregon (2006) WL 1749688 2...cccee ence eens 78 Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313 0...eee56 Smith v. Phillips (1982) 455 U.S. 209 2...cnetene 7 vill TABLE OF AUTHORITIES Pages Sullivan v. Louisiana (1993) 508 U.S. 275 2.cccece ete een e eens 75 Thomas v. Hubbard (9th Cir.2001) 273 F.3d 1164 2.0...eceens 81 Turner v. Murray (1986) 476 U.S. 28 00.cece ete e ee eee nea 8,9 Turrentine v. Mullin (10th Cir. 2004) 390 F.3d 1181... 0.ccce eee 74 United States v. Duarte-Acero (11th Cir. 2000) 208 F.3d 1282 1.0.0... . cecetees 78 United States v. Gonzalez-Lopez (2006) =»US. 126 S.Ct. 2557ccccee ees 75 United States v. Baldwin (9th Cir. 1979) 607 F.2d 1295 2...ecenc ent ee aes 8 United States v. Carlson (8th Cir. 1976) 547 F.2d 1346 0...cceens 51 United States v. Chinchilla (9th Cir. 1989) 874 F.2d 695 0...ene15 United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104 2...eens43 United States v. Rauscher (1886) 119 U.S. 407 0.ccceen tenn ences 78 United States v. Reynolds (1879) 98 U.S. 1452cecc eee eet e tenes 50, 51 1X TABLE OF AUTHORITIES Pages United States v. Sherwood (9th Cir. 1996) 98 F.3d 402 0...ccceee eens 18 United States v. Thevis (Sth Cir. 1982) 665 F.2d 616 1.0...eens51 Valentine v. United States (1936) 299 U.S. 5Locee ence ete nent nee tenes 79 Walker v. Gibson (10th Cir. 2000) 228 F.3d 1217 2.0...cece68 Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102 2.0...eee 11,12 STATE CASES Beard v. United States — (D.C. 1988) 535 A.2d 1373 2...eeeee e ee 18 Blue Star Line, Inc. v. City and County ofSan Francisco (1978) 77 Cal.App.3d 429 2.0... ccc ccc ccc ene nen 79 Centex Golden Const. Co. v. Dale Tile Co. (2000) 78 Cal.App.4th 992 2...cecee eee tees 29 Commonwealth v. Bohannon (1982) 385 Mass. 733 0... ccccece ete n teenies 39 Duckett v. State (Okla.Crim.App. 1995) 919 P.2d 7 1...cece teens 68 TABLE OF AUTHORITIES Pages Floystrup v. City ofBerkeley Rent Stabilization Bd (1990) 219 Cal.App.3d 1309 0.0...cece cence 22 In re Steven A, (1993) 15 Cal.App.4th 754 20.ceecee eens 22 Le v. State (Okla.Crim App. 1997) 947 P.2d.535 2.6... ccc cece eee eee 68 People v. Adams (1993) 19 Cal.App.4th 412 occcc eee nes 39 People v. Allen (2001) 86 Cal.App.4th 909 2...ccc eect tenes 46 People v. Armendariz (1984) 37 Cal.3d 573 2.cccee eet eee nnees 27 People v. Ashmus (1991) 54 Cal.3d 932 2... ccc cence eects 32, 70, 72 People v. Babbit (1988) 45 Cal.3d 660 2.0...cee cece ete nes 73 People v. Benavides (2005) 35 Cal.4th 69 2.cccec eeeeee ee e eens 55 People v. Bojorquez (2002) 104 Cal.App.4th 335 2.0... . eee eee beeen eee e eens 66 People v. Bradford (1997) 15 Cal.4th 1229 oocccneces 59 Xi TABLE OF AUTHORITIES Pages People v. Bunyard (1999) 45 Cal.3d 1189 2.cececence ees 26 People v. Cash (2002) 28 Cal.4th 703 2... cece cece eee eee eens 8 People v. Chacon (1968) 69 Cal.2d 765 2.0...ecccc cece ee ete e ee nes 40 People v. Cleveland (2004) 32 Cal.4th 704 20.cenee eens 43 People v. Corella (2004) 122 Cal.App.4th 461.20...cee cee ees 27 People v. Cox (1991) 53 Cal.3d 618 2...cececee e eens 72 People v. Cummings (1992) 4 Cal.4th 1233cececette eee eae 58 People v. Cunningham (2001) 25 Cal.4th 926 2...cccce teen eens 71 People v. Duran (1976) 16 Cal.3d 282 2...ccc ene cece eens 71 People v. Dyer (1988) 45 Cal.3d26...cetteeens 21 People v. Flores (1982) 128 Cal.App.3d 512 2...ccc cece nee 49 People v. Fuentes (1991) 54 Cal.3d 707 2...cccence eens 13 xii TABLE OF AUTHORITIES Pages People v. Gates (1987) 43 Cal.3d 1168 2.0...cece eee eee eens 34 People v. Gentry (1969) 270 Cal.App.2d 462 2.0... cee ccc cee teens 47,48 People v. Gionis 1995) 9 Cal.4th 1196 2...ccceee ees 59( People v. Green (1980) 27 Cal.3d 1...oecece ccc eect ee eee eens 59 People v. Guiton (1993) 4 Cal.4th 1116 2...cccee ee eee eens 46 People v. Hannon (1977) 19 Cal.3d 588 2... ccccee ete e ens 30 People v. Herrera (2000) 83 Cal.App.4th 46 2.0...ccccee cence nes 29 People v. Hill (1997) 17 Cal.4th 800 2...ccc eee teens passim People v. Hill (1992) 3 Cal.4th 959 2...cccee eet eee e eens 1 People v. Holt (1997) 15 Cal.4th 619 2...ceeteen ene 18, 73 People v. Jones (1997) 15 Cal.4th 119 2ccctee teens 58 People v. Pitts (1990) 223 Cal.App.3d 606 22.0... cece ce cee eee ees 31 xiii TABLE OF AUTHORITIES Pages People v. Robertson (1982) 33 Cal.3d21 2...ccc cee cence eens passim People v. Weiss (1958) 50 Cal.2d 535 20.cccet eee neces 31 People v. Love (1961) 56 Cal.2d 720 20.ccccece ees 60, 67 People v. Malone (1988) 47 Cal.3d 1 oo...ccccet ene eens 40 People v. Martinez (1994) 26 Cal.App.4th 1098...ccc cee eee ees 46 People v. Mason (1991) 52 Cal.3d 909 2...ccc cece eee eee nen 42 People v. McGlothen (1987) 190 Cal.App.3d 1005 2.0... cee cece eee eens 10 People v. Mendibles (1988) 199 Cal.App.3d 1277 2.0...eeeeeees 49 People v. Moon (2005) 37 Cal.4th 1...ccc cece tence tenn eee eee 73 People v. Nakahara (2003) 30 Cal.4th 705 2...ccccee een tenes 53 People v. Ochoa (2001) 26 Cal.4th 398 20...ccccence aee 18 People v. Partida (2005) 37 Cal.4th 428 0.0... ccc eee tenes passim X1V TABLE OF AUTHORITIES Pages People v. Price (1991) 1 Cal.4th 324 ooccccece eee nes 60 People v. Raley (1992) 2 Cal.4th 870 2...enee enes 46 People v. Redmond (1969) 71 Cal.2d 745 20cece enn e eens 46 People v. Roldan 2005) 35 Cal.4th 646 2.0...cccteen eens 5( People v. Sanchez (1995) 12 Cal4th 1 oo.cccc eee e eens 74 People v. Sandoval (1992) 4 Cal4th 155 ookcecenee e neces 58 People v. Smith (1983) 34 Cal.3d 251 2...ccceens 29, 35 People v. Smith (2005) 35 Cal.4th 334 2...cccet eee eee n eens 69 People v. Snow (2003) 33 Cal.4th 440cecee eens 77 People v. Staten (2000) 24 Cal.4th 434 20.eeeeens 2 People v. Talle (1952) 111 Cal.App.2d 650 2.0...eecece 60 People v. Taylor (1992) 5 Cal.App.4th 1299 oo...ceeeee eee 7 XV TABLE OF AUTHORITIES Pages People v. Von Villas (1992) 11 Cal.App.4th 175 2...ccceee nes 30 People v. Ward (2005) 36 Cal.4th 186 2...ceeee eee eens 13 People v. Warren (1988) 45 Cal.3d 471 2...ceceene n eens 40 People v. Wheeler (1978) 22 Cal.3d 258 2...ceeeee ene 9,13 People v. Wilborn (1999) 70 Cal.App.4th 339 2...ceeeens 5 People v. Williams (1968) 265 Cal.App.2d 888 0.0.0... cee eee teeee 39 People v. Williams (1988) 44 Cal.3d 883 2.0...ccccece eee eens 3 People v. Yeats (1984) 150 Cal.App.3d 983 22... ee eeeeee eee 40, 41 People v. Yeoman (2003) 31 Cal.4th 93 occeect eens 3 State v. Finch (1999) 137 Wash.2d 792 0.0... ceceeee nents 72 XVi TABLE OF AUTHORITIES Pages CONSTITUTIONS Cal. Const., art I, §§ |2 Tecccc nee eee e eet neees passim Spassim passim V7 Llccette passim U.S. Const., Amends Oecee teenies passim Bece eee e eens passim 14cee passim JURY INSTRUCTIONS CALJIC Nos. LOL...ceceeee nee 73 2.03 Lo ccccence ene eens 55, 56 2.06 Lo iecence nen ees 55, 56 2.20 LLenee eee ne eens 74 QLeectn eee nee 53 2.60 0. ee ccc ccc ee en eee nen e aes 74 020|74 QTLccctenet een n eens 74 29Dcecee een eens 74 8.84.1 Leeeens 73,74 i73 17.30.eeenen eens 74 Aenneen eens 74 17.48oneeens 74 XVil TABLE OF AUTHORITIES Pages STATUTES Cal. Code Regs., title 15, § 3343 2.0...ce eee eee 68 Evid. Code §§ B52cetteeee eens 20, 29 AQ2 Leeteee eens 35 0)33 0 38, 39,40 47, 49 1223 Lecceeee nee eens 29, 30 Oa)41 Pen. Code §§ tt17 LI8LLcenceeens 43 TEXT AND OTHER AUTHORITIES European Union, EU’s Policies on the Death Penalty, June 2, 1998 ..... 77 European Union,“Policy Towards Third Countries on the Death Penalty,” General Affairs Council, June 29, 1998 ........ 80 Inter-American Commission on HumanRights, Report no. 57/96, Case 11.139 2.0...eeeees 80 Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (1984) ECOSOC Res. 1984/50 ............. 80 United Nations Economic and Social Council, Commission on HumanRights,“Status of the International Covenants on HumanRights,” (2003) E/CN/.4/2003/106 ..............005. 77 XVili IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLEOF THE STATE OF CALIFORNIA, No. §073597 Plainti aintiff and Respondent, (Los Angeles Superior y Court No. PA023649) JUAN MANUEL LOPEZ Defendant and Appellant. APPELLANT’S REPLY BRIEF INTRODUCTION In this brief, appellant addresses specific contentions made by respondent, but does not reply to arguments which are adequately addressed in appellant’s opening brief. Appellant’s decision not to address any particular argument, sub-argumentor allegation made by respondent,or to reassert any particular point madein the opening brief, does not constitute a concession, abandonmentor waiverofthe point by appellant (see People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3), but reflects appellant’s view that the issue has been adequately presented andthepositionsofthe parties fully joined. ARGUMENT I. THE TRIAL COURT IMPROPERLY LIMITED VOIR DIRE OF PROSPECTIVE JURORS At the beginning ofjury selection,the trial court stated that it would not voir dire prospective jurors aboutracial prejudice. Appellant objected that the court’s failure to voir dire on racial prejudice violated his state and federal constitutional rights. (3 RT 276.) In particular, appellant argued on appealthat the trial court’s decision violated his federal andstate constitutional rights to due process, to a fair and impartial 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, Appellant’s Claims on Appeal Were Not Waived Respondent contends that the appellant’s claims were waived because appellant objectedattrial only on unspecified constitutional grounds. (RB 21.) Respondent’s reliance on People v. Staten (2000) 24 Cal.4th 434 is misplaced. In Staten, the defendantparticipatedin drafting a questionnaire that included questions regarding bias. He did not request additional voir dire concerning racial bias. The defendant did nothing to alert the trial court about a need to address the matter. This Court found that a “defendant cannot complain of a judge’s failure to question the venire on racial prejudice unless the defendanthas specifically requested such an inquiry.” (/d. at pp. 251-252.) Here,the trial court specifically found that someof the responsesto the jury questionnaire were inadequate,but stated, over appellant’s objection, that it would not voir dire the jury onracial prejudice. Unlike the defendant in Staten, appellant requested further inquiry. This Court should find that the issue was properly preserved before the trial court and may be addressed on appeal. Moreover, appellant’s objection alerted thetrial court that he opposedits ruling and that its decision had legal consequences. Even assumingthat appellant’s objection could have been morespecific, the legal consequencesofthetrial court’s decision — the constitutional violation of state and federal due process guarantees and its impact upon appellant’s rights to a fair and impartial jury and a reliable capital verdict — may be reviewedby this Court. In People v. Partida (2005) 37 Cal.4th 428, this Court addressed the circumstancesin which specific objections to evidentiary matters must be madein thetrial court. It emphasized that an evidentiary objection “must be madein such a wayastoalert the trial court to the nature of the anticipated evidence andthe basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.” (Jd. at p. 435, quoting People v. Williams (1988) 44 Cal.3d 883, 906.) However,the Court refused to impose formalistic requirements. Instead, it held that an issue is preserved for appealif it “entails no unfairnessto the parties,” who had the full opportunity at trial to litigate whether the court should overrule or sustain thetrial objection. (/d. at p. 436, quoting People v. Yeoman (2003) 31 Cal.4th 93, 118.) Most importantly, it emphasized thatthe legal consequencesof an objection — the constitutional violation that resulted from the trial court’s ruling — was a matter for the reviewing court to assess, and notthe trial court. (/d. at p. 437.) Thus, it found that a defendant on appeal mayargue a legal consequence ofan asserted error. (Jd. at p. 438.) Here, appellant’s objection similarly gave the trial court full opportunity to determine whetherit would voir dire on racial prejudice. Thus, the constitutional issues implicatedin thetrial court’s ruling may be reviewed by this Court. B. Voir Dire on Racial Prejudice was Critical to the Guilt and Penalty Phases Voirdire on racial prejudice must be conductedifthere are special circumstancesin the case that create a significant likelihoodthatracial prejudice mightinfect the trial. (Ristaino v. Ross (1976) 424 U.S. 589, 595.) Here,the trial court erroneously limited its voir dire becauseit believed that there was no evidencethat racial considerations affected the charges against appellant. (3 RT 276.) However, in a case involving an Hispanic gang memberand a white underagevictim, the racial and ethnic factors that might have affected the jury’s consideration were readily apparent. Thus,the trial court was undera constitutional duty to conduct adequate voir dire on the issue for the purposesofboth the guilt and penalty phase.’ (AOB 17-23.) Respondentfaults appellant for not suggesting what follow up questions might have been asked. (RB 23.) The issue is not what specific questions might have been asked, but whetherthe voir dire conducted by the trial court was sufficient to uncoverracial prejudice. As the Supreme Court explained in Ham v. South Carolina [(1973) 409 U.S.524, 527]: “Thetrial judge was not required to put the question in any particular form,or to ask any particular numberof questions on the subject, simply because requested to do so bypetitioner.” But in this case... the court had an obligation to make someinquiry asto racial bias of the prospective jurors. It made none, thereby denying 1. Respondent does not dispute the constitutional importance of voir dire to both the guilt and penalty phases or distinguish this case from those that appellant has cited. Therefore, no further briefing is needed onthis issue. appellant the opportunity to determine whetherthe prospective jurors had a disqualifying state of mind. Thisis a violation of appellant’s constitutional right to a fair and impartial jury, and requires reversal. (People v. Wilborn (1999) 70 Cal.App.4th 339, 348.) Accordingly, it is not up to appellant to suggest the questions that might have been asked. Respondentalso faults appellant for not identifying the jurors that should have been further questioned and contendsthat the questionnaire wassufficient to explore any issue ofracial prejudice.” (RB 22-23.) Respondent mistakenly relies on People v. Roldan (2005) 35 Cal.4th 646. In Roldan, this Court foundthat racial prejudice was not an “obvious issue.” (/d. at p. 695.) The defendant did not object to the trial court’s voir dire. (Jbid.) Moreover, the defendant could not identify how the jury questionnaire was inadequate. Accordingly, this Court foundthatthe trial court did not abuse its discretion by relying on the questionnaire to address the issue of possible racial bias. (/d. at p. 696.) In contrast to Roldan,the trial court in this case found that “that a numberofpeople did not respondto the question aboutracial prejudice.” (3 RT 276.) These jurors certainly should have been questioned. However, all the jurors should have been questioned because the written questionnaire standing alone did not adequately guard againstthe possibility of racial prejudice. (See AOB 20-22.) 2. Respondentnotes that one of the jurors (No. 7183)thatthetrial court might have questioned about racial matters was excused for cause for other reasonsso that no voir dire on racial prejudice was needed. (RB 23, fn. 17.) However,if the trial court did not question jurorsthat presented overt issues aboutracial prejudice, then its voir dire certainly could not have uncovered less open,butstill important, forms of prejudice. The trial court’s failure to question this juror demonstrates the complete inadequacyofits voir dire. 5 Question 83 askedifthe jurors would use the samestandards to judge a witness’s credibility regardless of particular factors, including race and ethnicity. It invited a response onlyifthe prospective juror did not believe that he or she could judge a witness’s credibility without regard to several factors, including race and ethnic background. (4 CT 867.) Very few jurors would indicate that they could not measure the credibility of a witness, and this question did little to explore how racial factors might have influence a guilt or penalty verdict. Question 86 asked the jurors to describe the problem if they believed there wasracial discrimination against Hispanics in Southern California. (4 CT 868.) Racial prejudiceis a very real problem. (See Castanedav. Partida (1977) 430 U.S. 482, 495 [no dispute that Hispanics are in a class that is subject to discrimination].) Yet, a juror could haveleft this question blank for any numberofreasons: he or she might not have understood the question; a juror might have believed that racial discrimination was warranted; or a juror simply might not believe that there was racial discrimination against Hispanics. Thus, a juror wholeft this question blank — as several jurors who served on this case did — should have been questioned further.?” Question 87 asked the jurors to check “Yes”or “No”to indicate whether they had ever been afraid of another person becauseoftheirrace. (4 CT 868.) Fear of another person because of their race maycertainly raise questions about a person’s racial attitudes, but one can be prejudiced without being afraid. Thetrial court again failed to follow up even when 3. Thesitting jurors who did not respondto this question included 2207 (7 CT 1260), 2393 (7 CT 1319), 3689 (7 CT 1375), 1952 (7 CT 1405), 4628 (7 CT 1465), 7027 (7 CT 1495), 0906 (7 CT 1525), and 1230 (8 CT 1555.) 6 answers should have elicited follow-up questions to determineif the jurors’ experiences mightaffect their ability to sit on this case. Forinstance,sitting Juror 4193 indicated that she had oncebeenafraid of another person becauseoftheir race (7 CT 11289), butthe trial court did not conduct any follow-up questionsonthis issue. (3 RT 301-304.) The final question that dealt with race or ethnic factors asked whether jurors had participated in private club that limited its membership on the basis of several factors. (Question 88; 4 CT 868.) Twoprospective Jurors indicated that had participated in private clubs thatlimited its membership, but thetrial court did not pursue the issue further in voir dire. (See Prospective Juror 2386 [10 CT 2423 [attended “Jonathan Club”], 3 RT 304-309]; Prospective Juror 7359 [15 CT 3892 [memberof “Checkers m/c”], 3 RT 343-346].) Underthese circumstances, the questionnaire alone could not have broughtto light hiddenprejudice that might have affected both the guilt and penalty phases. (See People v. Taylor (1992) 5 Cal.App.4th 1299, 1312-1313 [racial prejudice may be conscious or unconscious]; Smith v. Phillips (1982) 455 U.S. 209, 222 (conc. opn. by O’Connor,J.) [juror “may have an interest in concealing his own bias [or] may be unawareofit”].) By refusing to conduct voirdire on racial prejudice, the trial court failed to assure that the jury selection process was “meaningful and sufficientto its purposeofferreting out bias and prejudice on the part of prospective jurors.” (People v. Taylor, supra, 5 Cal.App.4th at p. 1314.) Theissue ofpossible racial prejudice was extremely importantto the jury selection in this case. In a case that relied primarily upon inferences and speculation about what appellant told his brother and other gang members, any bias against Hispanics would makeit easier for a juror to assumethat appellant instigated the crime. Ifjurors harbored any fear of young Hispanic males, they would believe that appellant acted accordingly. Or, ifjurors believed that Hispanics were less trustworthy or prone to violence, they would similarly believe that appellant acted in accordance with their stereotypes. Moreover, in a capital trial, such bias could have had a profound affect upon the penalty decision. A juror could believethat a young Hispanic male deserved the death penalty simply because the victim was a white girl. Since this Court cannot determine whether any of appellant’s jurors might have expressed views that would have disqualified them from servicein this case, both the guilt and penalty verdicts against appellant must be reversed. (See Ham v. South Carolina (1973) 409 U.S. 524, 527 [failure to voir dire jurors on racial matters required reversal of guilt phase[; Turner v. Murray (1986) 476 U.S. 28 37 [inadequate voirdire on racial bias required penalty reversal]; see also People v. Cash (2002) 28 Cal.4th 703, 723 [failure to permit voir dire about penalty related issues required reversal]; United States v. Baldwin (9th Cir. 1979) 607 F.2d 1295, 1298 [reversible error if voir dire procedures do not create assurancesthat prejudice would be discovered].) HI // Il. THE TRIAL COURT IMPROPERLY DENIED APPELLANT’S MOTION BROUGHT UNDER PEOPLE v. WHEELER AND BATSON v. KENTUCKY A. The Trial Court Erred in Finding That There Was No Prima Facie Case of Discrimination Appellant objected when the prosecution used a peremptory challengeto strike the last African-American from the jury panel(juror 9877), after the prosecutor used a previous challenge to dismiss the only other African-American juror. Appellant also noted that the potential juror had prior jury experience and supported the death penalty. Appellant stated that she appeared to be otherwise qualified apart from any racial matters. (4 RT 488-489.) The trial court erred in finding that this did not establish a primafacie case of discrimination under People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79. (4 RT 490.) A primafacie caseis established if there is a reasonable inference of discrimination. (Batson v. Kentucky, supra, 476 U.S.at p. 94.) The inference of a discriminatory purposeis not a high burden. In Johnsonv. California (2005) 545 U.S. 162 [125 S.Ct. 2410], the United States Supreme Court emphasized that the Batson frameworkis designed to produce answersto “suspicions and inferences that discrimination may have infected the jury selection process.” (Jd. at p. 2418.) It explained thatit “did not intend thefirst step to be so onerous that a defendant would have to persuade the judge — on the basisofall the facts, some of which are impossible for the defendant to know with certainty — that the challenge was morelikely than not the product ofpurposeful discrimination.” (Jd. at p. 2417.) Rather, a defendantsatisfies the requirements of Batson’sfirst step “by producing evidencesufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Jbid.) In Johnson, the United States Supreme Court foundthat the California standard for determining whether there wasa primafacie case of discrimination was overly stringentsince it required defendants to show that it was morelikely than not that the prosecutor improperly used his peremptory challenge. (Johnson v. California, supra, 125 S.Ct. at p. 2416.) Respondent doesnot dispute that the trial court applied this incorrect standard. (RB 29-30.) Accordingly, this Court must review the issue de novo, without the usual deference givena trial court’s rulings. (See People v. McGlothen (1987) 190 Cal.App.3d 1005, 1015 [a rulingthat is erroneousas a matter of law is not entitled to deference].) Respondent contends that the record demonstrates that there were reasons to excuse the prospective juror. (RB 31.) However, appellant based his motion primarily upon the prosecutor’s focusin striking African- Americans from the jury panel. (4 RT 488-489.) At the time that the prosecutor struck juror 9877, he had used four peremptory challenges. (3 RT 409, 410; 4 RT 487, 488.) Two of these challenges were against African-Americans. (4 RT 488.) The prosecutor would have accepted the jury panel after using only one more challengeto the first group of potential jurors that were called to the panel.” (4 RT 493, 549.) Half the challenges the prosecutor used at that time were against African-Americans and he would have accepted the jury after using only one more challenge. Statistical evidence demonstrates that appellant was correct: the prosecutor focused his challenges on African-Americans,raising a reasonable 4. Ultimately, the prosecutor only used 12 challenges. 10 inference ofdiscrimination. (See Miller-El v. Dretke (2005) 545 U.S. 231 [125 S.Ct. 2317, 2324-2325] [usingstatistical analysis in Batson inquiry]; Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1107 [a defendant can makea prima facie showing based ona statistical disparity].) Accordingly, the proper inquiry is not whether there may have been race-neutral reasons that could have supported the prosecutor’s challenge, but whether the reasonscited by the trial court refuted the inference of discrimination raised by the prosecutor’s focus on African-Americans. (Williams v. Runnels, supra, 432 F.3d at p. 1108-1110.) In Williams, the prosecutor similarly focused his challenges upon African-Americansby striking three black potential jurors with his first four challenges. (Williams v. Runnels, supra, 432 F.3d at p. 1103.) This fact alonecreated statistical disparity. (Id. at p. 1107.) The Ninth Circuit Court of Appeals found that state court and the federal district court erroneously addressed whetherthe record could support race-neutral groundsfor the prosecutor’s peremptory challenges. (/d. at p. 1108.) The court emphasized: A Batson challenge doesnot call for a mere exercisein thinking up any rationalbasis. ... To rebut an inference of discriminatory purpose based onstatistical disparity, the “other relevant circumstances” must do more than indicate that the record would support race-neutral reasons for the questioned challenges. 11 (/d. at p. 1108.) Accordingly, the record must show morethanreasonsthat might have supported a prosecutor’s peremptory challenge, but the kind of evidencethat erodes the premises of the disparity that is at issue.’ (Ibid.) Respondent’s reasons do not erodethe kindofdisparity that was at issue in this case or provide sufficient reason for the prosecutor to have focused his challenges on African-Americans. First, respondentspeculates that the prosecutor could have challenged juror 9877 because she had been an alternate jurorin a casethat resulted in a hung jury, and would have voted with the minority. (RT 31; see 17 CT 4484, 3 RT 417-418.) As an alternate juror, she did not participate in the deliberations and have the benefit of that process. (Compare 8 CT 1606 [alternate juror 4043 served on a hung jury, but switched from minority to majority in the course of deliberations].) Since neither the prosecutoror the trial court mentioned this as a reason whythe juror may havebeen struck,it clearly did not weigh heavily in the determination. Respondent also contends that juror 9877 wasinattentive. (RB 31) Thetrial court stated that it had learned off the record that she had been working nights. (4 RT 490.) Butneitherthe trial court nor the prosecutor questioned her about her demeanor, or whether her schedule would interfere with her duties as a juror. This indicates that it did not play an important role in the decision, and doesnot refute a prima facie case of 5. The court noted that one such circumstance maybethetiming of the Batson objection. (/d. at p. 1108, fn. 9.) If, as in this case, African- Americansarestruck early in the jury selection process it mayraise a reasonable inference of discrimination that would not necessarily arise if the same juror wasstruck after numerous challenges had already been exercised. (Ibid.; see Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083, 1091 [pattern of strikes at the time of the Batson objection indicated disparity].) 12 discrimination. (See People v. Wheeler, supra, 22 Cal.3dat p. 281 [failure to question prospective juror relevant consideration in determining whether there is a primafacie case of discrimination].) The reasons cited by respondent do not address whythe prosecutor focused his challenges on African-American jurors. Thestatistical disparity raised by the prosecutor’s use ofhis first four peremptory challenges to strike both African-Americans from the jury raised a reasonable inference of discrimination. This wasparticularly true in light ofher questionnaire that indicated that juror 9877 couldbe a fair and impartial juror, applying the death penalty if the case warranted it. (17 CT 4501.) Underthese circumstances,thetrial court erred in not determining that there was no prima facie case of discrimination. B. The Prosecutor’s Stated Reason Did Not Provide a Legitimate Basis for a Peremptory Challenge After the trial court ruled that a prima facie case wasnotestablished, the trial court asked the prosecutor to explain why he had excused juror 9877. He stated that he challenged her because she was not candid about her jury experience. (4 RT 491.) Thetrial court found that this was a sufficient reason to justify a peremptory challenge. (4 RT 492.) Thetrial court’s consideration of the prosecutor’s reason constituted an implied finding that a prima facie case was established,despite its ruling to the contrary. (Hernandez v. New York (1991) 500 U.S. 352, 359 [preliminary issue of whether there was a primafacie case of discrimination becomes moot once the prosecutor’s reason is considered bya trial court]; People v. Fuentes (1991) 54 Cal.3d 707, 716 [trial court’s inquiry constitutes an implied finding ofa primafacie case of discrimination]; People v. Ward (2005) 36 Cal.4th 186, 200 [same].) 13 Oncea prima facie case of discrimination is established, the validity of the prosecutor’s reason is at issue. In Miller-El v. Dretke, supra, 125 S.Ct. 2317, the Supreme Court emphasized that a prosecutor must “stand or fall on the plausibility of the reasons he gives.” (Jd. at p. 2332.) “[I]t does not matter that the prosecutor might have had goodreasonsto strike the _ prospective jurors [based on the record]. What matters is the real reason they were stricken.” Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083, 1090.) Accordingly, even if respondent’s reasons (discussed above) might have supported a peremptory challenge,it is the prosecutor’s stated reason that must control this Court’s decision. Respondent contends that the record supports the prosecutor’s reason. (RB 35.) Yet, nothing in the record indicates that juror 9877 was not being candid. At the beginning ofvoir dire, she immediately corrected her answeron the jury questionnaire andstated that there had not been a verdict in the case upon which she hadserved as an alternate. (4 RT 416; 17 CT 4494.) As respondentnotes, the trial court apparently confused her questionnaire with that of another juror who had the samelast name. (4 RT 421.) Thetrial court referred to a case that happened “about 1990"that juror 9877 may have taken to mean the 1985 case in which she served. Yet, she consistently stated that she had served as analternate juror, the jury did not reach a verdict, and that she voted with the minority. (4 RT 416, 422- 423; 17 CT 4484.) There is nothing that demonstrates she was not being candid. Indeed, by correcting her answer on the questionnaire, juror 9877 wasboth candid and honest in her answers. Accordingly, the prosecutor’s reason wasnot supported by the record. This was insufficient under Batson. (See Miller-El v. Dretke, supra, 125 S.Ct. at p. 2331 [reviewing whetherthe record supported the prosecutor’s reasons]; Johnson v. Vasquez 14 (9th Cir. 1993) 3 F.3d 1327, 1331 [even a race-neutral reason must be supported by the record].) Moreover, the prosecutor’s reason wasparticularly spurious because it was not applied equally to white jurors that the prosecutor selected. (See Miller-El v. Dretke, supra, 125 S.Ct. at p. 2325 [using comparative analysis to show purposeful discrimination]; Boyd v. Newland (9th Cir., June 26 2006) F.3d [2006 WL 1728077] [comparative analysis is an importanttool in determining both whetherthere was a primafacie case of discrimination and whethera prosecutor offered genuine reasons to support a peremptory challenge].) Many potential jurors, including those selected by the prosecutor, made changes to the answers given in their questionnaires. (See, e.g., 3 RT 368 [Juror 3689]; 4 RT 521 [Juror 2207]; 5 RT 639 [Juror 8982]; 5 RT 645 [Juror 1952]; 5 RT 676 [Juror 1230]; 6 RT 7A\ [Alt. Juror 0490]; 6 RT 768 [Alt. Juror 0871]; 6 RT 779 [Alt. Juror 6319].) Moreover, other jurors were confused by the questionnaire. For example, juror 7027 indicated both that he had served on a jury ina criminal case that had reached a verdict and that he had voted with the minority. (7 CT 1486.) This answer was contradictory, yet the prosecutor accepted him on the jury without questioning him about it. In addition, unlike juror 9877, juror 7027 did nothingto correct this answer. Underthese circumstances, there is nothing in the record that indicates that juror 9887 was less candid than jurors chosen by the prosecutor. Thus,the trial court erred in accepting the prosecutor’s rationale. It improperly denied appellant’s Batson motion. Accordingly, reversal is required (See United States v. Chinchilla (9th Cir. 1989) 874 F.2d 695, 699 [Batson error required reversal after the prosecutor’s reasons 15 did not hold up underjudicial scrutiny because they were not applied equally to jurors who were accepted].) // / 16 Il. APPELLANT WAS NOT PRESENT DURING TWO PORTIONS OF HIS TRIAL IN VIOLATION OF HIS STATUTORY AND CONSTITUTIONAL RIGHTS Appellant has argued that he was improperly excluded from the individual voir dire that the trial court conducted in chambers with nine prospective jurors during the jury selection process. That appellant wasleft alone in the courtroom during the selection process not only denied him the opportunity to participate in the mostsensitive part of the jury selection process,it separated him from his defense counsel and gave the impression that either he could notbe trusted to participate in important matters affecting his trial or that he was disinterested in the entire process. Accordingly,the trial court’s exclusion of appellant from these proceedings violated his statutory rights under Penal Codesection 977 andhis state and federal constitutional rights to due process and a trial by jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 16.) Respondent contends that before jury selection began, appellant’s trial counsel indicated that appellant would be willing to waive his right to present during procedural discussions. (RB 38.) Thetrial court simply inquired if appellant were willing to waive his presence “for purposes of permitting the court and counsel to go over the jury questionnaire type of information, do anything procedural, arrange thingsso that they run the most smoothly when they can.” (1 RT 88.) The court stated that it would makeit easier for court and counselif they did not need an interpreter and bailiffs for this type of proceeding. (1 RT 88-89.) Ricardo Lopez, appellant’s co-defendant, was not willing to waive his presence. (1 RT 89.) Appellant’s trial counsel indicated only that appellant would waivehis presence if Ricardo changed his mind. (1 RT 89.) Thetrial court’s request 17 did not extend to voirdire, andtrial counsel’s statement did not amountto a waiver. The trial court’s discussion about the voir dire procedures was held in chambers, without appellant’s presence. (5 RT 610.) Under these circumstances, appellant did not agree to waivehis presence. Respondent contends that the confidential portion of the voir dire bore norelation to appellant’s opportunity to defend againstthe charges so that his presence wasnot required undereither statutory or constitutional principles. (RB 42-44.) Respondentrelies primarily upon People v. Ochoa (2001) 26 Cal.4th 398. In Ochoa,the trial court held sidebar conversations with 12 prospective jurors. The defendant did notparticipate in these discussions. This Court found that the defendant’s presence in these matters was not required becausethey did not bear a reasonably substantial relation to the opportunity to defend himself.” (Jd. at p. 435.) Federal courts have often recognized that defendants have a constitutionalright to participate in voir dire held at sidebar or in chambers. (See, e.g., Beard v. United States (D.C. 1988) 535 A.2d 1373, 1375 [right of defendantto participate in sidebar voir dire]; United States v. Sherwood (9th Cir. 1996) 98 F.3d 402, 407 [felony defendant has fundamental right to be present during the attorney-conducted jury voir dire at sidebar].) But, 6. Ochoarelied on People v. Holt (1997) 15 Cal.4th 619, which respondentalso cites. (RB 43.) In Holt, this Court held that the defendant’s presenceat the several hearings from which he was absent would not have had any impact, including a sidebar discussion of a challenge for cause and an in-chambersdiscussionofa sitting juror. Holt relied on the fact that the defendant prevailed in each of the matters discussed during the proceedings. (Ud . at p. 707.) But a legal discussion aboutjurors is different than voir dire proceedings, wherejurors are askedto clarify answers in their questionnaire. Moreover, appellant was not simply excluded from the side- bar discussions, but remained in the courtroom while confidential voir dire was conducted in chambers. 18 unlike Ochoa, appellant was not simply excluded from sidebar conversations — he remained in the courtroom whilethetrial court and the attorneys met with perspective jurors in chambers. Thejury panelitself remainedin the courtroom. This separated him from his counsel in the presence of the jury. The prospective jurors were left with the impression that appellant waseither too dangerousto participate in the proceedingsin chambersor not interested in doing so. In a capitaltrial, it is critical to humanize the defendantin the eyes of the jurors. (Cf. Payne v. Tennessee (1991) 501 U.S.808,826 [“capable lawyerstry... to convey to . . . jurors that the people involved... are... living humanbeings, with something to be gained or lost from the jury's verdict”].) Since the evidence against appellant was based primarily upon a single, ambiguous statement that he made to another gang member(see ArgumentIX [insufficient evidence to support the verdict]), the jury’s perception ofappellant was crucial — how they viewed appellant played a significant role in how they viewed the evidence against him. By leaving appellant at the counsel’s table during proceedings in chambers,thetrial court negated this aspect of appellant’s defense. Reversalis required. Hf // 19 IV. THE TRIAL COURT IMPROPERLY ALLOWED THE PROSECUTOR TO PRESENT EVIDENCE OF A THREE-WAY CALL WITH RICARDO LOPEZ Appellant has arguedthattrial court erroneously allowed the prosecutorto introduce evidence of a three-way phonecall between appellant, Ricardo Lopez, and Jorge Uribe. The prosecutorusedthis evidence to link appellant to statements made by Ricardo about the plans that he made with Uribeto kill Melinda — statements that could not be admitted against appellant under the Confrontation Clause. Its use violated the stipulation that appellant had enteredto limit any referencesto a three- party conversation and was more prejudicial than probative under Evidence Codesection 352. It left the trial fundamentally unfair in violation of federal and state due process standards and violated Eighth Amendment standards for a reliable capital verdict. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 17.) A. Testimony About a Three-Way Telephone Call Violated the Stipulation During pre-trial proceedings, appellant and the prosecutor agreed to limit references to a three-party conversation. Asset forth by the prosecutor, the stipulation provided: any references to those conversations, since they were three- party conversations, will only include a reference to the fact that this was a conversation between Ricardo Lopezandthis person George Uribe, also knownas Pelon, during which the murder of Miss Carmody wasdiscussed, but there will not be any referenceto the fact that this was a three-way conversation or that Mr. Lopez was involved in such conversation. (7 RT 834.) 20 Respondent contendsthat the trial court properly interpreted the stipulation in accordance with the prosecutor’s interpretation. (RB 56, citing People v. Dyer (1988) 45 Cal.3d 26.) However, respondent does not provide any convincing reason about whyit is more reasonableto interpret the stipulation according to the prosecutor’s wishes than to rely on meaning of the agreementitself, as understood by both appellant andthetrial court. In Dyer, the prosecutor agreed not to impeach the defendant with his prior convictions during the guilt phase of the defendant’s capital murder trial. The defendant sought to take advantage ofthe stipulation to introduce testimony abouthis reputation as a peaceful, nonviolent person. (People v. Dyer, supra, 45 Cal.3d at p. 55.) This would have mislead the jury because the defendant’s previous convictions for armed robbery and burglary showedthat his character was different than that presented by the defense. Thetrial court interpreted the stipulation to preclude the prosecutor from introducing the convictions on his own,butnotto limit his right to respond to the defendant’s evidence. (/bid.) This Court held that the trial court’s ruling was a reasonableinterpretation that reflected the probable intention of the parties. (/d. at p. 57.) Accordingly, in Dyer, the stipulation itself showedthe intention of the parties and the Court simply declined to extend it into areas that it did not address. Here, the prosecutor introduced evidenceof a three-party conversation as part of his case-in-chief against appellant. Thetrial court initially found that the prosecutor’s reference to a three-party conversation in his opening statementviolated “‘the spirit, if not the absolute language of the stipulation.” (7 RT 910.) Althoughit later allowed the prosecutor to use the evidence against appellant, it also stated that the stipulation was not as clear as the prosecutor maintained. (12 RT 1581.) Indeed,thetrial court 21 asked the prosecutor to explain why the meaning ofthe stipulation was different than what the words themselvessaid: Reading from thestipulation... I simply wantyou to explain to me whatit really meansif its different than the words purport to state. (12 RT 1580.) Thus,both the trial court and appellant understoodthat the wordingprecludedthe prosecutor from referring to the three-party conversation. When the wordsofa stipulation are clear, there is no need to interpret it. (See Floystrup v. City ofBerkeley Rent Stabilization Bd (1990) 219 Cal.App.3d 1309, 1318.) Moreover, any ambiguity had to be construed against the prosecutor, whopresented thestipulation to thetrial court. (See In re Steven A. (1993) 15 Cal.App.4th 754, 771.) Thus, appellant was entitled to rely on the meaningofthe stipulation,that it would preventthe prosecutor from introducing any evidenceofa three-way conversation involving appellant. Respondentcontends that in light ofRichardson v. Marsh (1987) 481 U.S. 200,it is reasonable to conclude that the stipulation was meant to apply only to Ricardo’s statement. (RB 59.) Richardson held that the Confrontation Clause is not violated if a co-defendant’s statementis redacted to eliminate facially incriminating evidence, andthejury is instructedthat it cannot be used against the defendant. (Id. at p. 211.) If the stipulation was limited to this, there would have been no need forthe parties to have entered into it since the prosecutor could simply have presented the redacted testimony without violating the Confrontation Clause. However,in Richardson, the United States Supreme Court recognized that other matters at trial may makethe redaction andlimiting instruction meaningless. Thus, the Court foundthat the prosecutor’s argument improperly linked the defendant to portions of the co-defendant’s 22 confession that described a conversation the defendant had in a car. The argument undidthe limiting instruction by urging the jury to use the co- defendant’s confession in evaluating the defendant’s guilt or innocence. (Jbid.) In this case, the evidence of a three-way telephone conversation (and the prosecutor’s argument) similarly allowed the jury to use Ricardo’s confession against appellant. Ricardo’s statementtold the jury that he had discussedthe killing with Uribe. (15 RT 1837.) Patricia Lopez testified that Ricardo and Uribehadparticipated in a telephonecall with appellant during this same time period. (12 RT 1597.) The prosecutor used this to argue that appellant had discussed the crime with Uribe and Ricardo: According to his sister, [appellant] calls again and sesetss up a three-way conversation between Juan, Ricardo, and [Uribe]. Now,thatin itself, if this was in a vacuum, might not mean that much atall. ... When you look about what ultimately happened here and how did it and how this happened. . it does not take a great leap of logic to see what they were talking about. Because if you recall, it was [Uribe] that got the gun. (19 RT 2413.) The only evidence that Uribe obtained the gun wasthe statement by Ricardo. The prosecutorclearly used the three-way conversation to apply Ricardo’s statements against appellant. The jury certainly did the same. Thus, evidenceof a three-party conversation effectively underminedthe protections established in Richardson underthe Confrontation Clause and went beyond what Richardson contemplated. The testimony aboutthe three-way conversation rendered the stipulation meaningless because it invited the jury to speculate aboutthe exact things that it was designed to prevent. It allowed the prosecutorto exceed the procedures established in Richardson and usethethird-party 23 evidence to undo the way that Ricardo’s statement was redacted. This left the trial fundamentally unfair and violated appellant’s constitutionalrights to due process and to confront the evidence against him. It left the verdict unreliable under Eighth Amendmentstandards. Under these circumstances, the trial court erred in notenforcing the stipulation to preclude any referencesto the three-party conversation. B. The Evidence Was More Prejudicial Than Probative Appellantalso objected that the testimony about a three-party conversation was more prejudicial than probative. (12 RT 1578.) The prosecutorstated that the evidence was relevant because appellant showed a consciousnessof guilt whenhetold the police he had not spoken to Uribe or Ricardo. (12 RT 1579.) Thetrial court also foundthat the act of making the call had significance. (12 RT 1583.) However, its probative value was extremely limited since the evidence did not necessary relate to the instant crime. Theofficers told appellant that they only wanted to talk to him about Melinda. (4 CT 896.) Although appellant denied speaking with Ricardo and Uribe, appellant may not have wantedto go beyondthe purported subject of the interview andtell the police about his gangactivities or to discuss matters concerninghis family or friends with the officers. In contrast, its prejudicial impact was enormousbecauseit allowed the prosecutor to speculate that appellant planned Melinda’s killing during this conversation. (19 RT 2413.) Respondentcontends that the conversation was relevant because the prosecutor’s theory wasthat there was a conspiracy between appellant, Ricardo, and Uribe. (RB 64.) Undoubtedly, there was evidence that appellant had made numerousphonecalls from jail. (16RT 1995-2015.) There was also evidence that appellant was using thesecalls to conduct 24 gang business. (See, e.g., 9 RT 1166 [testimony of Sandra Ramirez].) However, the inference that appellant planned the crime with Ricardo and Uribe wasbased onthe statements of Ricardo — without these statements there wasnothing linking Uribeto the crime.” Since Ricardo’s statements werenot admissible against appellant, the probative value of the three-way conversation was limited. The fact of the conversation did not establish a conspiracy to kill Melinda. The specific prejudice of the three-way conversation wasthatit invited the jury to use Ricardo’s statementto implicate appellant. (See 19 RT 2413 [prosecutor arguesthat the three planned the crime,using Ricardo’s statementthat Uribe had obtained the gunagainst appellant].) The jury wasleft to speculate — even as the prosecutor did — that appellant was linkedto the plans made by Uribe and Ricardo. Yet, appellant could not defend himself against matters raised only in the case against Ricardo or confront the statements made by him. This madethetrial fundamentally unfair in violation ofthe state and federal guarantees of confrontation, due process,and reliability. (See People v. Partida (2005) 37 Cal.4th 428, 438 [state law claims giverise to constitutional issues].) Since this was central to the key issue that the jury had to decide, reversal is required. (Chapman v. California (1967) 386 U.S. 18, 24.) 7. Respondentnotes that both Uribe and Ricardo werepresentat the murder scene. (RB 64.) It was a joint gang meeting and there was nothing unusual about both the regular gang andthegirls’ auxiliary gang meeting together. Similarly, that Uribe told Melinda that Ricardo wanted to speak with her did not point to a conspiracy since anyonepresent could have relayed this request without intending a murder. Ricardo’s statements alone established that Uribe provided the weapon and knew about the crime. 25 V. THE TRIAL COURT IMPROPERLY ALLOWED A STATEMENT ATTRIBUTED TO APPELLANT’S CO- DEFENDANTTO BE USED AGAINST APPELLANT Thetrial court allowed the prosecutor to introduce evidencethat after Ricardo shot Melinda, he pointed the gunto his head andsaid, “For my carnal[brother].” (18 RT 2250.) Appellant objected that the evidence was hearsay, improperrebuttal, and called for an improper conclusion. (18 RT 2218; 17 RT 2250.) The trial court allowed the testimony. Appellant has arguedthat its erroneous admission violated the state and federal due process guarantees of fundamental fairness, appellant’s right to confront the evidence against him,and affected the reliability of the verdict. (U.S. Const., 6th, 8th, & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 16, 17.) A. When Used Against Appellant, the Statement was Hearsay that Violated His Right to Confront the Witness Against Him Respondent contends that Ricardo’s statement properly was admitted for a nonhearsay purpose: to show Ricardo’s state ofmind. State of mind evidenceis only admissibleifit is relevant to an issue in disputeattrial. (People v. Bunyard (1999) 45 Cal.3d 1189, 1204.) Respondent contends that appellant could only have been found guilty if Ricardo planned the crime. According to respondent, the statement was relevant to show Ricardo’s premeditation and deliberation.” (RB 70.) Here, appellant did not dispute Ricardo’s state ofmind after the shooting. The sole issue was whetherappellant had instigated or directed 8. Respondentalso argues that the trial court did not have a sua sponte duty to instruct the jury to limit its use to Ricardo’s state of mind. (RB 71-72.) Appellant did notraise this issue in his opening brief andthis Court should not considerit here. 26 him to commit the crime. Accordingly, evidence showing Ricardo’s state of mind after he shot Melinda was not admissible against appellant unlessit wasrelevantto that issue. Under respondent’s theory, Ricardo’s statement would show premeditation and deliberation only if the content of the statement were true: i.e., that he committed the crimefor appellant or upon his request. Underthese circumstancesit is not possible to separate Ricardo’s statement from its hearsay use. (See People v. Armendariz (1984) 37 Cal.3d 573, 587 [declarant’s statement offered for state of mind “in effect” provedthe truth of the matter and was inadmissible hearsay].) Ricardo’s statement was extremely prejudicial. If the jury believed that Ricardo had donethekilling “for” appellant, then they would assume that appellant directed him to do it. Yet, appellant had no opportunity to question Ricardo abouthis statement or determine its meaning. The jury wasleft to assume the worst in violation due process and appellant’s right to confront the evidence against him. Ultimately, the statement was simply not reliable evidence. (See Ohio v. Roberts (1980) 448 U.S. 56, 65-66 [requiring hearsay to bear indicia ofreliability]; People v. Corella (2004) 122 Cal.App.4th 461, 467 [applying Roberts to non-testimonial hearsay].) It was made at a time when Ricardo was extremely distraught, to the point where he hadtriedto kill himself. He may have meant that he committed the crime “for” appellant after premeditation and deliberation. But he also could havetalked to Melindaafter drinking alcohol, argued with her, and committed the crime “for” appellant’s honor. His statement was ambiguousandthe circumstances under which it was made were very emotional, just before he tried to commit suicide. Under these circumstances, the Court should find 27 that its erroneous admission violated appellant’s constitutionalright to confront the evidence against him, the federal and state due process guarantees of fundamentalfairness, and the requirements forreliability in a capital case. Because the statementleft the jury free to speculate aboutits meaning andto useit against appellant, reversal is required.” (Chapmanv. California (1967) 386 U.S. 18, 24.) // Hf 9. Respondentalso contends that appellant waived the federal constitutional issues raised in the openingbriefby failing to address these groundsat trial. (RB 69.) However, by allowing the evidence to be used against appellant, the trial court effectively implicated appellant’s constitutional rights. Under these circumstances, this Court may review these issues. (People v. Partida (2005) 37 Cal.4th 428.) 28 VI. THE TRIAL COURT ERRONEOUSLY ALLOWED THE PROSECUTOR TO PRESENT INFLAMMATORY HEARSAY ABOUT A MESSAGEON THE VICTIM’S PAGER Thetrial court erroneously allowed testimony that Melinda’s pager showed the message “187.” There was no evidencethat the message was linked to appellant in any way. Its admission into evidenceviolated appellant’s statutory rights under Evidence Codesection 352 and his federal and state constitutional rights to due process anda reliable verdict in a capital case. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15 17.) 3 Respondent contendsthat the evidence was properly admitted as a statementin furtherance of the conspiracy. (RB 76,citing Evid. Code, § 1223 [statements of a co-conspirator].) In order for the trial court to have admitted the evidence underthis section it would have had to make a preliminary determination that the statement was madebya conspirator in furtherance of the conspiracy. (Evid. Code, § 1223. subd. (c); see People v. Herrera (2000) 83 Cal.App.4th 46, 61.) The prosecutor did not offer this statement underthis section andthetrial court did not makethis determination.” Accordingly, it cannot be asserted here for thefirst time on appeal. (People v. Smith (1983) 34 Cal.3d 251, 270-271; Centex Golden Const. Co. v. Dale Tile Co. (2000) 78 Cal.App.4th 992, 999.) Even assuming that this Court may consider respondent’s position, there was no evidence to establish who placed the message. It might have 10. Thetrial court admitted the testimonyas part of the circumstancesofthe crime. (12 RT 1490-1491.) 29 been oneofthe alleged conspirators.It might havebeen a left by someone whobelieved Melinda deserved herfate, but had not joined a conspiracy. Asthetrial court stated: Howit got there and whyit got there may be nothing more than serendipity. None of us may knowthat, whatlittle’s before the court now, unless we have something furtherthat suggests that there is some knownreason whyit’s there. .. . (RT 12 1490-1491.) The foundational requirements of section 1223 — that the message on the pager was sent by a conspirator — required more. Respondent’s citation to People v. Von Villas (1992) 11 Cal.App.4th 175 is misplaced. In Von Villas, the trial court admitted a calendar found in one defendant’s house which had the date ofthe victim’s disappearance blackened out. Thetrial court found that the calendar was an admission of a conspirator. (/d. at p. 230.) Although the reviewing court foundthat the evidence was somewhat ambiguous, it emphasizedthat the trial court was in a position to determine the credibility of the witnesses whotestified about the calendar. It also emphasized that only a small numberofpeople — the co-conspirator’s family — hadaccessto the calendar. It noted that stronger foundations have been presented in support of such evidence, but foundthat the trial court did not abuseits discretion in admitting the calendar. (Jd.at p. 232.) Here, the trial court made no findings under Evidence Code section 1223, and there were others apart from the alleged co-conspirators who could haveleft such a message. Without some evidence to show who placed the message,it could not have been properly admitted as a statement of a co-conspirator. 11. The person wholeft the message presumably wasnotappellant as the prosecutor did notintroduce any evidenceindicatingthat a call had been made from the jail to Melinda’s pager. 30 Respondent also contendsthat the message wasrelevant becauseit wasevidencethat there had beena planto kill Melinda and that the shooting wasintentional. (RB 77.) Respondentnotes either that the call was “aroundthe time the shooting occurred” (RB 76) or“just before the shooting” (RB 77). The chaplain testified that the pager showedthat the call was madeat 8:42 p.m. (15 RT 1906.) The exacttime of the shooting was notestablishedattrial. It would have been highly unlikely for either Ricardoor Uribe to have sent a message to Melindabeforethe shootingthat threatened her with murderas this would have been counterto any alleged plan that depended upon Melindafeeling safe in order to attend a gang meeting. Moreover,there was no evidence that either individual made a phonecall shortly before or after the shooting. Accordingly, the timing of the message didlittle or nothing to establish either the existence of the alleged conspiracyor a planto kill Melinda. Regardless of whether the “187” message wassent beforeor after the crime, the prosecutor used evidence of anonymousacts ofothers against appellant in ways that made it impossible for him to defend. There was no evidence that the message wassent as part of a conspiracyor with appellant’s knowledge or approval. There was noevidencelinking the message to appellant or anyofthe alleged co-conspirators. Accordingly, the trial court erred in allowingit to be admitted. (People v. Weiss (1958) 50 Cal.2d 535, 553; see also People v. Hannon (1977) 19 Cal.3d 588, 599-600 [attempt to suppress evidence must beattributable to defendant]; People v. Pitts (1990) 223 Cal.App.3d 606, 781 [evidence ofthreats not connected to defendant was inadmissible].) Since appellant could not defend himself against an anonymousact, it use made thetrial 31 fundamentally unfair in violation of state and federal constitutional standards for due process and reliable capital verdict” Respondent’s theories demonstrate the prejudicial effect of the anonymous message. To the extent that the jury regarded the messageas beingattributable to appellant (either directly or as part of a conspiracy),it would have been used to prove the existence ofa plan to kill Melinda. Moreover, the evidence invited a purely emotional response against appellant. It made him appear as the embodimentofpeople’s fears about gang culture — cold, brutal, and gloating. Moreover, respondent does not address the effect of the error on the penalty phase. (See AOB 66.) Even assumingthat the error was harmless during the guilt phase, the testimony aboutthe pager inflamed the jury against appellant. Once the jury concludedthat appellant wasguilty of the charged crime, they also would have believed that he was somehow responsible for the message. The jury was left with the impression that appellant was gloating over the murder, callous and indifferentto the consequencesofhis actions. The type of coldness andruthlessness behind such a message were important considerations in the normative decision about whether appellant shouldlive or die. Accordingly, this Court must reverse the judgment of death. (See People v. Robertson (1982) 33 Cal.3d 21, 54; People v. Ashmus (1991) 54 Cal.3d 932, 965 [any substantial error affecting the penalty verdict requires reversal undereither federalorstate tests for harmlesserror].) 12. Respondent contends that appellant’s constitutional claims were waived. However,the trial court’s error in admitting the evidence implicated state and federal constitutional rights. Accordingly, this Coourt may considerthe constitutional claims on appeal. (People v. Partida (2005) 37 Cal.4th 428, 437.) 32 VIL. THE TRIAL COURT IMPROPERLY RESTRICTED APPELLANT’S CROSS-EXAMINATION OF THE VICTIM’S MOTHER Appellant sought to cross-examine Susan Carmody,the victim’s mother, aboutthe extent of Melinda’s history ofrunning away from home before she met appellant; the circumstances under which Melinda returned homeafter living with appellant’s family; and her ownstate of mind that mayabout mattersthat affected her testimony. In eachoftheseinstances, the trial court improperly sustained objections by the prosecutor and refused to permit the questions. Thetrial court’s rulings violated appellant’s statutory rights to cross-examine a witness on matters that are within the scope of direct examination (Evid. Code, § 761) and his state and federal constitutionalrights to present a defense, to confront the evidence against him,to due process,andfora reliable penalty verdict. (U.S.Const., 6th, 8th, & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 16, 17.) A. The Trial Court Improperly Prohibited Appellant from Questioning About the Victim’s Pattern of Running Away from Home Appellant sought to question Susan Carmody about how manytimes Melinda ran away from homebefore shelived with appellant’s family. The trial court erroneously sustained the prosecutor’s objections to the relevance of this question. (18 RT 2268-2269.) Respondentcontendsthat the numberoftimes that Melinda ran away from homewasofsuch marginalrelevance that it was properly excluded by the trial court. (RB 81.) However, Melinda’s previous actions were clearly a relevant issue. Melinda ran away andlived with appellant andhis family whenshe wasonly 14 years old. Appellant could have been seen by the 33 jurors as being the person who wasresponsible for the problems that she had with her family, or as a person who contributed to these problems by encouraging Melinda to run away. Therefore, the extent of her problemsat home— that she ran away from homeonseveral previous occasions — was importantfor the jury to understand. Appellant’s cross-examination would have placed Melinda’sactions in a more complete context. It should have been permitted. (See People v. Gates (1987) 43 Cal.3d 1168, 1185 [cross- examination proper with respect to facts that are expressly stated or necessarily implied from the testimony on direct examination].) B. The Trial Court Improperly Excluded Questions About the Circumstances Under Which the Victim Returned Home Ondirect-examination, Carmodytestified that Melinda had lived with appellant’s family after she ran away from home. Shereturned home in September, 1995. (18 RT 2263.) On cross-examination, Carmody testified that Melinda came back on her own, butstated that it was “possible”that the police had scared herinto doing so. (18 RT 2269.) Appellant sought to clarify this: Q. Did you,in fact, tell the officer that Mindy stayed with Juan from March 1995 until September 1995? A. Yes. Q. At that time, she ran into the police and they scared herinto . coming home? 34 (18 RT 2270.) Thetrial court sustained the prosecutor’s objection to this question as improper impeachment. (18 RT 2270.) Respondentcontends that unless Carmody observed what had happened,she lacked personal knowledge of the reason that Melinda chose to return home. Respondentreasonsthat her opinion would have been based on speculation or hearsay, so that there was no reason to believe she was being evasive during her testimony. (RB 82.) Appellant did not ask Carmodyfor her opinion about what had happened. Heasked abouta prior inconsistent statement that she had given to a police investigator that implied personal knowledge. Indeed, the prosecutor did not base his objection on herlack ofpersonal knowledge — if he had, the matter could havebeen resolved at a hearing under Evidence Codesection 402 [allowing for a hearing outside the presenceofthe jury to determine factual foundation].) Respondent’s contention shouldtherefore be rejected. (See People v. Smith (1983) 34 Cal.3d 251, 270-271.) The question was important because Carmody’s testimony was unclear about the circumstances under which Melinda returned home. If Melindareturned homeonly because she had beenscaredbypoliceofficers, it would have placed appellant’s actions that led to the alleged kidnaping — and the hope that they might marry — in a more mitigating context. It would 13. Respondent characterizes the question as asking only if Melinda had been scared into coming homerather than relating to whatshetold the police. (RB 82.) However, appellant’s trial counsel asked if she had been interviewed by thepolice, if she saw him taking handwritten notes, and whatshe told the officer. (18 RT 2269-2270.) In context,it is clear that the question referred to the Carmody’s statements during herinterview with the police. 35 have been importantfor the jury to consider, particularly in relation to the penalty phase decision. C. The Trial Court Should Have Permitted Appellant to Question Carmody About Her State of Mind Regarding Her Daughter’s Gang Associations Appellant attempted to question Carmody abouta statement she had made that would have shown herstate of mind toward’s her daughter’s gang associations, including appellant. Appellant asked Carmody if she had everstated that Melinda dressed “like a white girl” when they were together, but when Melinda was not with Carmody, she dressed “like a chola [Latina gang member].” (18 RT 2274.) Respondent contends that there was nothing to link this statement towardany bias against appellant. (RB 83.) However,it reflected Carmody’s state of mind about her daughter and herassociations. That Carmodybelieved her daughter was different when she was at home certainly would imply a bias against those who hadaffected her when she was away from home. Appellant should have been allowedto explore that state of mind. D. Reversal Is Required Respondent contends that any error was harmless because the questions were marginally important. Respondent speculates that the questions would havenot have assisted appellant and could have been used to his detriment. (RB 83-84.) Respondent’s speculation should not trump the judgmentof appellant’s trial counsel, who sought to ask the questions. The questions were important because Melinda’s homelife and her relationship to appellant were intertwinedin both the guilt and penalty phasesofthis trial. That she movedin with appellant’s family when she was only 14 and had associated herself with a Hispanic gang were very 36 emotional matters that were before the jury. The questions would have provided further information to help the jury understand why she cameto live with appellant and why she moved back home. It would have helped the jury understand the tensions between Melinda’s homelife, where she dressed and acted one way, and her friendships within the gang. This would have placed the circumstances of this case into a more balanced context and affected both phasesofthetrial. This Court should therefore reverse the judgment against appellant. (Chapman vy. California (1967) 386 USS.18, 24.) He / 37 VII. THE TRIAL COURT IMPROPERLY PERMITTED AN INVESTIGATING OFFICER TO TESTIFY ABOUT THE VICTIM’S DEMEANOR WHENSHETESTIFIED AT THE PRELIMINARY HEARING REGARDING THE KIDNAPING CHARGE Thetrial court erroneously permitted Detective Morritt to testify that Melinda wasfrightened, upset, and crying during her testimonyat the preliminary hearing on the kidnaping charge. The testimony wasirrelevant and speculative, violating appellant’s federal and state constitutional rights to confront the evidence against him, due process, and reliable verdict in a capital case. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. 1, §§ 7,15, 16. & 17.) Respondent contendsthat the testimony was relevant because Melinda’s demeanoraffected her credibility under Evidence Code section 780.“ Respondentreasonsthat since lay witnesses are permittedtotestify about a person’s demeanorin othersituations, Detective Morritt’s testimony wasa proper observation that was relevant to Melinda’s credibility as a witness. (RB 86.) Respondentis mistaken because the assessment of a witness’s credibility is unique to the jury’s role as fact-finders. This assessmentis so importantthat it is part of the rationale underlying the Confrontation Clause — it is the combination of a witness’s physical presence, oath, cross-examination, and observation of demeanorbythetrier of fact that allows the jury to measure the truth ofthe testimony. (Maryland v. Craig 14. This section provides that in determining the credibility of a witness, a jury may considercertain factors, including the demeanorofthe witness. (Evid. Code, § 780, subd. (a).) 38 (1990) 497 U.S. 836, 846; People v. Adams (1993) 19 Cal.App.4th 412, 437-438.) Althoughprior testimony of an unavailable witness may be read to the jury without violating the Confrontation Clause, courts have recognized that under these circumstances the jury is not able to consider the witness’s demeanor. (People v. Williams (1968) 265 Cal.App.2d 888, 896; see also Commonwealth v. Bohannon (1982) 385 Mass. 733, 747-748 [prior testimony allowed “even though some demeanorevidencerelevantto resolving the issue of credibility is forever lost’’].) Thus, testimony about a witnesses’s demeanor cannot be equated with the personal observation that is necessary forthis type of assessment. Although respondentcorrectly notes that witnesses can testify about the demeanorof an individual whenthat is a relevantto thetrial, there is a difference between demeanor whenit is offered as a specific factual consideration related to a disputed issue and whenit is part of the over-all assessment of a witness’s credibility. In the first situation, demeanor may indicate a flash of anger, fear, or thoughtfulnessthat is linked to a specific factual issue before the jury. In contrast, the jury’s assessment of a witness’s credibility considers demeanorin its entirety. As Justice Learned Hand explained, The words used are by no meansall that we rely on in making up our minds aboutthe truth of a question that arises in our ordinary affairs, and it is abundantly settled that a jury is as little confined to them as we are. They may, and indeed they should, take into consideration the whole nexus of sense impressions which they get from a witness. (Dyer v. MacDougall (2d Cir.1952) 201 F.2d 265, 269.) In this case, the testimony of Detective Morrittt did not offer the “whole nexus of sense impressions”that was equivalent to measuring credibility under Evidence 39 Code section 780. Thus, it was not proper evidence to establish Melinda’s credibility as a witness. Respondent suggests that appellant could have cross-examined Morritt about Melinda’s state of mind. (RB 88.) However,cross- examining Morritt about Melinda’s demeanor would beoflittle or no value. Asdiscussed above, evidence concerning a witness’s demeanoris part of the rights secured under the Confrontation Clause. Therightof confrontation “permits the jury that is to decide the defendant's fate to observe the demeanorofthe witness in making his statement, thus aiding the jury in assessing his credibility.” (California v. Green (1970) 399 U.S. 149, 158.) Morritt’s testimony could notsubstitute for this right because Melinda could not be cross-examined about the reasons for her demeanor and the jury could not assess her demeanoras a whole. Respondentnotes that this Court has allowed witnessesto testify abouttheir fear of testifying. This kind of evidence is generally offered to explain why a witness changed his or her testimony or washesitant in answering an important question. (See People v. Malone (1988) 47 Cal.3d 1, 30 [fear of retribution by gang members required showingthatretaliation waspart of gang practice]; People v. Warren (1988) 45 Cal.3d 471, 484- 486 [evidence that witnesses wanted nothing to do with the case relevant after they refused to identify defendant]; People v. Yeats (1984) +150 Cal.App.3d 983, 987 [evidence tending to show witness wasfearful provided a motive for him notto tell the truth]; People v. Chacon (1968) 69 Cal.2d 765, 779 [prosecution witness evasive and uncooperative].) In all these instances, the witness was subject to cross-examination. Cross- examination is particularly important in this situation because a witness’s fear does not inherently make one’s testimony more credible. If that were 40 the case, a paranoid individual suffering from delusions would be the most credible witness ofall. Thus, the reasons that a witness is fearful provide an important measureto assess how that fear might affect the testimony. Respondent contends that there could be no prejudice because Melindahadtestified that she was frightened by appellant. (RB 88.) Yet, her testimony wasin the specific context of the alleged kidnaping. She stated that she had not wanted appellant to come to her house because she was scared of him after they broke up their relationship. (7 RT 918.) She testified that she wasfrightened when appellant pushedherinto the car. (7 RT 926.) This is far different than saying that she was frightenedto testify against appellant. Melindadid nottestify that she was frightened orupsetat the prospect oftestifying. The prosecutordid not ask her about any kind of inconsistency orother aspect of her testimony that might be explained by fear. The investigating officer did not identify any questions or answers that might have caused Melinda to be upset. There was nothing to link her mental state to any specific issue in this case or to makeher testimony more credible. Without some evidence to connect Melinda’s emotionalstate to a disputed issuein the case, it was irrelevant to the jury’s determination. (See Evid. Code, § 1250 [state of mind evidence mustbe relevantto 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 ofmind by demonstratingthat the witness’ testimony is inconsistent or otherwise suspect”].) Respondentfinally contends that any error was harmless because Melinda’s testimony wentto the kidnaping charges that were supported by other evidence. (RB 88-89.) Yet, the primary danger wasthat the jury 41 would use Morritt’s testimony to assumethat Melinda wasafraidtotestify against appellant and assumethat appellant acted in accordance withthat fear to instigate her killing. (AOB 76-78.) This was an extremely emotional matter and wentto the heart of appellant’s defense againstthe capital charges. Appellant could not defend himself against this kind of speculation,particularly because there was no evidencethatthe victim’s fear in testifying was caused by him. (See People v. Mason (1991) 52 Cal.3d 909, 946 [evidence of an anonymousthreat not connected with the defendant should be suspect as an endeavorto prejudice the defendant before the jury in a way which he cannotpossibly rebut].) Under these circumstances, reversal is required. (Chapmanv. California (1967) 386 USS. 18, 24.) H/ // 42 IX. THE EVIDENCE WASINSUFFICIENT TO SUPPORT A VERDICT OF FIRST DEGREE MURDER Appellant was charged with first degree murder. 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.” (9 RT 1187; 11 RT 1382.) After Almatold him thatit depended on what she had doneto her, appellantallegedly stated, “I already have someonedoingit for me.” (11 RT 1382.) Atthe close ofthe prosecutor’s case, appellant askedthetrial court to dismiss the charges under Penal Code section 1181.1, which allowsa trial court to enter an acquittal if there is insufficient evidence of a defendant’s guilt. (16 RT 1961.) The trial court erroneously denied the motion. Insufficient evidence supported the charges underboth state and federal due process standards. Respondentfirst contends that appellant had a motive to committhe crime because he was angry with Melinda’s testimony at the preliminary hearing on the kidnaping charge. (RB 91.) Appellant asked Melindanotto testify at the preliminary hearing. (9 RT 1161.) During Melinda’s testimony, he stood upandstated, “I don’t havetolisten to this shit.” (8 RT 1055.) Appellanttold the investigating officer that her testimony made him either sad or angry. (12 RT 1613.) But noneofthese statements threatened Melindain any way and she continuedto associate with appellant’s gang. Under these circumstances, evidence of a motive is insufficient to support the verdict. (See People v. Cleveland (2004) 32 Cal.4th 704, 750 [jurors wouldnotbelieve that motive alone was sufficient to establish guilt]; United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104 [motive alone insufficient to prove larceny].) 43 Respondentalso cites appellant’s actions with respect to Melinda’s gang, movingtheir initiation of a new memberto thealley where the regular meeting wasto be held. (RB 92.) There wasalso no evidencethat appellant changedthe initiation as part of a plan to commit a homicide. Appellant spoke with Sandra Ramirez and Alma Cruz before the crime was committed. He was concerned that the gang members cometo a meetingin order to pay dues, and that a “green light” had been placedon the gang by the Mexican Mafia. (9 RT 1166-1167; 10 RT 1324-1325.) A joint meeting was plannedtodiscuss this situation. This meeting was set up even before it was decided to initiate the new member. (10 RT 1324.) Therefore, there was no needto orchestrate the girls’ presence because they already would have been at a gang meeting. If there had been planto kill Melinda, it would have complicated matters by ensuring that there were several witnesses to the killing. (See 9 RT 1205 [Ricardo upset that Sandra had brought a numberofgirls to the meeting].) Underthese circumstances, appellant’s statement that thegirls should initiate the new memberat the sametime as the regular meeting, in their own gangterritory, could not have beenpart ofa plan to kill Melinda. Respondentalso contends that Ricardo’s actions supported an inference that appellant was a principal in the murder. (RB 93.) Respondentnotes that Ricardo asked Sandra Ramirez why she had brought a numberofgirls with her to the meeting. Ricardo also told Ramirez that if anything happenedshe shouldsay it was a drive-by. (9 RT 1205.) However, if appellant had orchestrated the meetingas part of a plan to kill Melinda, then Ricardo would have been expecting all the girls to come to the alley. That he was surprised indicates that no such plan had been made. 44 If anything, it was evidencepointing to appellant’s innocence — he did not believe that there was anythingto hide. Respondent contends that appellant’s actionsafter the murder displayed a consciousness of guilt. (RB 93.) Appellant asked Sandra Ramirez what had happenedat the meeting. (10 RT 1275.) No evidence links this to the crime. It was clear that appellant expected somethingto happen ~ he had discussedthe green light, the dues situation, and the gang initiation with Ramirez. A general inquiry about what happened doesnot provide evidence to support guilt. Appellant also told the police that he had not spoken with Ricardo and Uribe. It is hardly surprising that appellant would not wantto discuss gang business 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 agreedto try to answer the officers’ questions. (4 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. (4 CT 899-900.) Under these circumstances, what appellant rememberedor the reasons why appellant may havetold the officer certain things are speculative and do not providereliable evidence against him. Taken as a whole appellant’s conviction rests on the single question he asked Almaand speculation about what he must havesaid or meant. Yet, his statement to Alma wasfar from clear and neither Sandra or Alma understoodit as a threat against Melinda or anyoneelse. It mayraise a suspicion of appellant’s guilt, but suspicion is not enoughto constitute 45 substantive evidencein support ofthe verdict.(People v. Raley (1992) 2 Cal.4th 870, 891; People v. Redmond (1969) 71 Cal.2d 745, 755.) | Accordingly, appellant’s conviction for first degree murder must be reversed andhis sentence ofdeath set aside. (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].) H H/ 15. Respondentcorrectly states that California’s corpus delicti rule requires only proofthat a crime occurred, and not proof of a defendant’s mental state or the degree of a crime charged. (See People v. Martinez (1994) 26 Cal.App.4th 1098, 1104.) The jury had evidence apart from appellant’s statement to Sandra that Ricardo had been drinking and was angry with Melinda; that they exchanged heated words; andthat he shot her with a gun that he had obtained from Uribe, perhaps for protection because there was a “green light” upon the group. While this does not constitute substantive evidence of appellant’s guilt, appellant acknowledgesthatit meets the requirementsof the corpus delicti rule. 46 X. THE TRIAL COURT ERRED IN ADMITTING MELINDA’S DIARY AND STATEMENTSTHAT SHE HAD MADETO A TEACHER Thetrial court erroneously allowed the prosecutor to introduce in rebuttal an entry in Melinda’s diary and statements that she had made to her teacher. Appellant objected that these statements were hearsay and improper rebuttal. (18 RT 2226.) However,the trial court allowed the evidenceto be admitted as prior consistent statements under Evidence Code sections 791 and 1236. (18 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 were not prior consistent statements underthe statutory scheme. Moreover, the testimony violated appellant’s constitutional rights to due process and fair trial, to confrontation of witnesses and to reliable capital trial. (U.S. Const. 6th, 8th, & 14th Amends.; Cal. Const.art. I, §§ 7, 15, 16, 17.) A. The Statements were not Prior Consistent Statements Prior consistent statements are allowed under Evidence Code sections 791 and 1236 whenthey are made before a declarant makes an inconsistent statement or before a motive for fabrication arose. Respondent contends that the evidence was properly admitted as consistent statements to rebut evidence presented by appellant that Melinda “said nothing [to appellant’s mother, aunt and uncle] to indicate that she was with appellant againstherwill or that she was injured”shortly after the alleged kidnaping occurred. (RB 103.) Respondent mistakenly relies on an exceptionto the tule on prior consistent statements identified in People v. Gentry (1969) 270 Cal.App.2d 462. 47 In Gentry, Larry Taylor, a witness in a child abuse case, gave a statementto the first officer who questioned him that did not inculpate the defendant. Later that morning, Turner told anotherofficer anda transcriber that the defendant had been involved in previous incident and that he had heard soundsof a child crying and noises indicating the child had been slappedor hit. Witnesses for the defendant impeached Turner with testimonythat he hadstated that he named the defendant only because he wasafraid of going to jail himself. Turnertestified that he had not mentioned the defendant because he wasstill groggy and that he was afraid only of goingto jail as an accessory to the crime if he did not namethe defendant. Thetrial court also permitted the second officer andtranscriber to testify about Turner’s second statement. (Id. at p. 472-473.) The reviewing court explained that a consistent statement that was made after an improper motive wasalleged to have arisen was inadmissible. (Id.at p. 473.) However, it found that there was an exception whenit wasalleged that a witness did not speak of the matter whenit would have been natural to do so. Atthat point, a consistent statement was proper becauseit rebutted the negative inferences that were alleged. (Ibid.) Here, the evidence offered by appellant was not that Melinda did not make a complete statement when asked abouta particular incident, nor was it simply that she wassilent. There was no evidencethat Melinda was asked about anyof the events that had happenedearlier that day. Rather, appellant’s witnesses testified that Melinda was not injured andthat her actions, appearance, and demeanor demonstrated a favorable relationship with appellant. In particular, appellant’s mothertestified that Melinda had givenhera cardthat pictured a man and a woman and had the words, “You Light Up MyLife”on it. (17 RT 2120, 2124.) Appellant’s aunttestified 48 that appellant and Melinda cameto their houseandthat they both spoke to her about their plans to go to Mexicoto get married. She spoke to Melinda in orderto talk heroutof this plan!” (17 RT 2148-2149.) Appellant’s uncle stated that he drove Melinda and appellant back to their neighborhood. (17 RT 2187.) All of these witnessestestified that they did not observe anyinjuries to Melinda’s back and neck andthat shedid not appearto be frightened. (17 RT 2119, 2150-2152, 2188-2189.) Thus, Melinda’ssilence wasnotat issue, but her positive interactions with appellant’s family andtheir observations about herphysical and mental state. Accordingly, the Gentry exception does notapply. Thediary entry and her statement to her teacher were madeafter Melindareturned home,told her mother, and reported the incident to the police. Underthese circumstances werenot prior consistent statement under Evidence Code sections 791 and 1236. (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 [statements admissible only if made before the time that the defendant asserted a motiveto fabricate had arisen].) 16. Melindatestified that she had been unable to communicate with appellant’s aunt, Maria Hernandez. because Maria spoke Spanish. (7 RT 932.) However, Hernandeztestified in English, was married to a man named “Murphy,” andstated that she spoke English at the time ofthe incident. (17 RT 2149.) 49 B. The Forfeiture Doctrine Does not Bar Appellant’s Claims under the Confrontation Clause Respondentcontendsthatthe forfeiture doctrine prevents appellant from asserting any claim under the Confrontation Clause because he was charged with killing the victim after she testified against him.” (RB 99- 101.) This Court has granted review in other cases to determineif the doctrine applies when the alleged wrongdoingis the sameasthe offense for whichthe defendantis on trial. (People v. Giles, Case No. 129852 [review granted Dec. 7, 2004]; People v. Jiles, Case No. $128638 [review granted and held pending decision in Giles, December 22, 2004].) Appellant submits that the doctrine should be applied narrowly only when there is direct wrongdoingto prevent a witness from testifying, not when a witnesshasalreadytestified against the defendant, as in the present case. Respondentrelies upon United States v. Reynolds (1879) 98 U.S. 145. (RB 100-101.) In Reynolds, the defendant wasontrial for bigamy. The prosecution attemptedto call the defendant’s second wifeto testify against him, but was unable to do so because the defendant refused to reveal her location to a process server. Thetrial court admitted testimony that she had givenin a priortrial on the sameissue. (/d. at pp. 159-160.) The Supreme Court found that the testimony was properly admitted: if a defendant “voluntarily keeps the witnesses away, he cannotinsist on his 17, Respondentalso contends that the Confrontation Clauseclaim is waived because appellantdid not assert the errorin the trial court. (RB 99.) Appellant objected on the basis of hearsay. This objection alertedthetrial court to the issue that was to be resolved, whether out of court statements not subject to cross-examination should be admitted. Moreover,the effect of the statements created a Confrontation Clause violation. The issue may therefore be resolved on appeal. (People v. Partida (2005) 37 Cal.4th 428, 436.) 50 privilege [to confront the witnesses against him].” (Id. at p. 159.) Viewed in context, it is clear that the defendant must have intendedto prevent the witness from testifying attrial. It is also clear that the evidence to which the Court referred wasprior testimony of a witness whom the defendant had a full opportunity to confrontat anearlier trial. It was not hearsay from a witness the defendant never had an opportunity to confront. The Supreme Court recently stated that the Sixth Amendmentdoes not require trial courts to acquiesce when a defendant procuresor coerces silence from witnessesor victims. (Davis v. Washington (2006) __ US. ___ [126 S.Ct. 2266, 2280].) Thus, it has narrowly interpreted Reynolds to allow testimonial evidence to be presented when a defendantprevented a witness from testifying. (See, e.g., Diaz v. United States (1912) 223 U.S. 442 [right of confrontation may be waived when testimony from a previous trial is admitted].) Federal circuit courts have applied the forfeiture doctrine in order to prevent witness tampering, such as when a defendant intimidates a witness to prevent his or her testimony. (See United States v. Carlson (8th Cir. 1976) 547 F.2d 1346, 1360 [grand jury testimony admitted after witness was intimidated into nottestifying].) A federal court also applied the doctrine when a witness was murderedto prevent him from testifying. (United States v. Thevis (Sth Cir. 1982) 665 F.2d 616, 630-633.) This doctrine was eventually codified in the Federal Rules of Evidence, rule Rule 804, subdivision (b)(6), which defined forfeiture by wrongdoing to allow “a statement offered against a party that has engaged or acquiesced in wrongdoing that was intendedto, and did, procure the unavailability of the declarant as a witness.” Here, the prosecution believed that appellant was angry with Melinda becauseofhertestimonyat the preliminary hearing. As in 51 Reynolds, her preliminary testimony was admitted in the courseofthistrial. These statements were properly before the jury and are not at issue here. Rather, the prosecutor introduced statements that were made before Melindaatthe preliminary hearing. They were not admitted at that hearing and there was no showingthat appellant committed the crime in orderto prevent these statements from being admitted. Under these circumstances, this Court should not apply the forfeiture doctrine. C. Reversal is Required Respondent contends that any error was harmless because ofthe weight of evidence supporting the kidnaping charge, but does not address appellant’s contention that the error affected the penalty phase. (AOB 94, RB 105.) The improper hearsay encouragedthejury to simply accept the allegations against appellant. Yet, appellant had presented several witnesses whotestified that Melinda did not appear to be injured and had done nothingto indicate that she was being held againsther will. The nature and extentofthe injury that Melindatestified about was very much in dispute. Melinda’s own testimony about the events of that day may have been seen less than credible, since she hadtestified that appellant’s aunt spoke no English. This indicated that the incident was more than a simple kidnaping, but part of a complex situation involving both Melinda and appellant, subject to interpretation. At the very least, these matters would have mitigated the alleged crime. Accordingly, the Court should find that the error affected both the guilt and penalty phases, requiring reversal. (Chapmany. California (1967) 386 U.S. 18, 24; People v. Robertson (1982) 33 Cal.3d 21, 54 [any substantial error affecting the penalty phase of a capital trial must be deemedprejudicial].) 52 XI. THE TRIAL COURT?’S INSTRUCTIONS IMPROPERLY ALLOWED THEJURY TO FIND GUILT BASED UPON MOTIVE ALONE Thetrial court instructed the jury that the “presence of motive may tendto establish a defendantis guilty” while “absence of motive maytend to show that a defendantis not guilty.” (21 RT 2654; 4 CT 981; CALJIC 2.51.) As applied in this case, the instruction permitted the jury to determine guilt based upon motive alone, reduced the prosecutor’s burden ofproof so that appellant had to show his innocence. Respondentnotes, as appellant acknowledged in his openingbrief, that this Court has rejected similar arguments in past cases. (AOB 95; RB 106; see People v. Nakahara (2003) 30 Cal.4th 705, 713.) However,in this case the motive instruction uniquely influenced the jury. The prosecutor was faced with the difficulty ofproving that appellant instigated his brother to kill the victim withoutproviding direct evidence about what they might have said to each other. Motive, then, was particularly importantto his case and the prosecutor introduced evidencethat appellant was upset with Melinda during her testimony. (8 RT 1055.) Indeed, respondentnotesin other contexts that appellant’s alleged motive allowed the jury to infer that appellant aided and abetted the crime. (RB 91-92.) Underthese circumstances, appellant’s alleged motive andthe instructions about it played a centralrole in this case. The motive instruction lessenedthe prosecutor’s burdenby inviting the jury to speculate about appellant’s motive. That he was angry with Melinda did not mean he was motivatedto kill her. There was no evidence that he had threatened her. After her testimony, he spoke to Melinda on the telephone and she remained involved in gangactivities. The instruction, 53 howeve?, invited the jury to make a leap that appellant would have acted upon the alleged motive and to use it as evidence against him. Moreover,the motive instruction encouragedthe jury to consider whether appellant had proventhat he lacked a motive. The prosecution’s theory was based upon appellant’s alleged anger toward the victim — that he must have soughtthe victim’s death because he was angry about her testimonyatthe preliminary hearing. This instruction encouraged the jury to adopt the prosecutor’s theory unless appellant established that he had no such anger. Taken as a whole, the instruction placed appellant in a “Catch- 22”situation that allowedthe jury to assumethat appellant was guilty because he wasangry andto assumethat the anger was a motive because he was implicatedin the victim’s death. Either way, it was impossible for appellant to defeat such speculation and to establish his innocence. Under these circumstances,the instruction violated appellant’s federal andstate constitutional rights to due process,a fair trial before a properly instructed jury, anda reliable verdict in a capital case. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art 1, §§ 7, 15, 16, 17.) Because motive was a keyissue beforethe jury, this Court should findthat it contributed to the verdict so that it was not harmless beyond a reasonable doubt. Reversalis required. (Chapmanv. California (1967) 386 U.S. 18, 24.) / H/ 54 XI. THE CONSCIOUSNESS OF GUILT INSTRUCTIONS WERE IMPERMISSIBLY ARGUMENTATIVE AND ALLOWED THE JURY TO FIND IMPROPER INFERENCES TO ESTABLISH APPELLANT’S GUILT Thetrial court improperly instructed the jury that they could consider a false statementby appellant (CALJIC 2.03) or an attempt to suppress evidence (CALJIC 2.06) as evidenceofhis consciousnessofguilt. These instructions unfairly highlighted evidence favorable to the prosecution and invited the jury to draw critical butirrational inferences against appellant. Respondentstates, as appellant has acknowledged,that this Court has rejected similar arguments in other cases. (AOB 102; RB 98; see Peoplev. Benavides (2005) 35 Cal.4th 69, 100.) This Court’s previous decisions should be reconsidered in light of the facts of this case. Appellant objected to the instructions because they were not applicable to any ofhis actions. (18 RT 2303, 2307.) Respondent contends that the jury could infer consciousness of guilt under CALJIC 2.03 because appellant gave false statements to the police about his telephone contacts. (RB 109.) Yet, there is nothingto link his actionsto the crime. Appellant wasClearly upset by Melinda’s death, but agreedto try to answerthe officers’ questions. (4 CT 896-898.) At the timeofthe interview, appellant had been given psychiatric medication and placed on suicide watch, so he did not even rememberhaving been informedabouthis rights in previous interviews. (4 CT 899-900.) Appellant had not been charged in connection with the homicide andthe officers stated that they only wantedto find out 18. Duringthe police investigation, appellant initially denied speaking with Sandra Ramirez. He later acknowledgedthat he spoketo her but denied speaking with anyoneelse from the gang. (12 RT 1618-1619.) 2 55 some information about what appellant might know about Melinda’sdeath. (4 CT 898.) Under these circumstances, his statements to the police indicate a desire to cooperate rather than to hide his involvement. However, appellant had many reasonsnotto discuss his gang involvementwith the officers. Thus, the evidence used to show appellant’s alleged consciousness of guilt was not something that necessarily involved the present crime. His actions would have been the same regardless ofhis guilt or innocence. The inferences aboutappellant’s state of mind were not supported by sufficient evidence to support CALJIC 2.03. (See Ulster County Courtv. Allen, supra, 442 U.S.at pp. 165-167, and fn. 28 [inferences must be “more likely than not”]; see also Schwendemanv. Wallenstein (9th Cir. 1992) 971 F.2d 313, 316 [noting that the Supreme Court has required “substantial assurance’ that the inferred fact is ‘morelikely than not to flow from the proved fact on which it is made to depend’”].) Similarly, appellant objected that CALJIC 2.06 did not apply because he madenoattempt to suppress evidence. Respondent contends that the instruction was warranted because appellant asked Melinda not to testify and, after the she waskilled, advised Sandra Ramirez not to talk to the police. (RB 108, 109-110.) However,neither of these actions warrantedthetrial court giving the instruction. His conversation with Melinda was far more complex than a mere attempt to suppress her testimony, and musttake into accounttheir entire relationship. Appellant spoke to Melinda from jail even after she testified and she continued to participate in gangactivities, so it is clear that she did not feel intimidated. Moreover, his statement to Sandra Ramirez simply advised her notto talk to the police. This does not indicate a consciousnessofguilt, particularly whenthere weresubstantial reasonsnotto involve the police in gang 56 activities at a time when appellant wasinjail, still trying to determine what had happened. Again,it is not “morelikely” that his statements reflected a consciousnessof guilt regarding the present crime. Accordingly, this Court should find that the instructions were erroneous. Reversal is required!” (Chapmanv. California (1967) 386 U.S. 18, 24.) // // 19. Since respondent does not address the issue of prejudice, no further briefing on this issue is needed. (See AOB 113-115.) 57 XII. THE PROSECUTOR COMMITTED MISCONDUCT DURING HIS CLOSING ARGUMENTAT THE GUILT PHASE BY IMPROPERLY ATTACKING APPELLANT’S COUNSEL AND LINKING APPELLANT TO EVIDENCE THAT WAS ADMITTED ONLY AGAINST APPELLANT’S BROTHER A. The Prosecutor Accused Appellant’s Counsel of Lying During the closing argumentin the guilt phase ofthetrial, the prosecutor attempted to rebut any suggestion that the evidence was speculative by attacking the credibility of counsel for both appellantandhis co-defendant: But who wants you to speculate? I want you to think about what the — counsel has looked you in the eye unblinkingly andjustsaid straight out, butter wouldn’t melt in their mouth. ... (21 RT 2601.) The trial court sustained the objection by appellant’s co- defendant. Shortly thereafter, the prosecutor denigrated appellant’s counsel bystating that he “thought Mr. Gladstein had been in the courtroom during the testimony.” (21 RT 2604.) Thetrial court sustained appellant’s objection. Respondent contendsthat there is no reasonable likelihoodthatthe jury construed the prosecutor’s remarksas an attack upon appellant’s counsel’s integrity. (RB 115.) Whatelse could his statements mean? The prosecutorstated that counsel had looked the jury in the eye and lied. The prosecutor did not simply arguethat counsel’s theories lacked evidentiary support. Hestated that counsel knowinglylied to the jury. This statement wasclearly improper. (People v. Cummings (1992) 4 Cal.4th 1233, 1302; People v. Jones (1997) 15 Cal.4th 119, 167; People v. Sandoval(1992) 4 Cal.4th 155, 183.) 58 Respondent contends that any issue regarding the prosecutor’s argument was waived because appellant did join in his co-defendant’s objection to the prosecutor’s first statement or request the jury to be admonished. (RB 113.) However, this Court maystill review the matter if an objection would have been futile or an admonition would not have cured the harm. (People v. Green (1980) 27 Cal.3d 1, 34; People v. Bradford (1997) 15 Cal.4th 1229, 1333.) In this case, appellant’s co-defendant objectedto the first attack upontrial counsel. Thetrial court immediately sustainedthe objection so that appellant had little opportunity to respond. A second objectionat that point, interrupting the court or the prosecutor’s subsequent argument, would have only servedto highlight the remarkto the jury. Moreover, the prosecutor’s second attack upontrial counsel continued the pattern established in the first remark. Taken together, the argument wasa direct attack upon the integrity of appellant’s trial counsel. Appellant’s objection served to respondto this argument. Respondent contendsthat this Court has foundthat a prosecutor’s improper remarks can be cured with an admonition. (RB 114.) However, the prosecutor’s statementin this case went beyondthose casescited by respondent. In People v. Gionis (1995) 9 Cal.4th 1196, the prosecutor read three “classic quotations”about lawyers, including a duty to lie anddistort. This Court found that the context of the argument was that lawyers were schooledin the art of persuasion and did not imply that the defense counsel had lied. (/d. at p. 1216.) Indeed,byreferring to all lawyers, the prosecutor implicated himself as well as defense counsel. Here, the prosecutordirectly attacked the integrity of the defense(“butter wouldn’t melt in their mouth”) and appellant’s counselin particular. 59 Similarly, in People v. Price (1991) 1 Cal.4th 324, the defense asked a prosecution witness if there had been any investigation to determine if an officer might have placed evidence whereit was found. Onredirect, the prosecutorreferred to counsel’s “sleazy” question. This Court agreedthat the statement was improper, but found it was anisolated incident in a very long trial. Underthese circumstances,thetrial court’s admonition was enoughto have cured the harm. (Id. at pp. 454-455.) Here, the prosecutor’s statement occurred during his closing argumentto the jury. It is a time whenhis words took on special importance. (People v. Talle (1952) 111 Cal.App.2d 650, 677; Berger v. United States (1935) 295 U.S. 78, 88.) Thus, the attack on defense counsel was much more powerfulthan that which occurred in Price. The prosecutor’s argumentin this case wasparticularly harmful. By attacking the honesty of opposing counsel, the prosecutor’s message was that he stood above such tactics and that he believed appellant’s defense to be reprehensible. Although thetrial court sustained the objections, the prosecutor’s point wasestablished andaffected the jury’s view ofthe entire trial. Underthese circumstances, this Court should find that the argument was improper andprejudicial. (See People v. Love (1961) 56 Cal.2d 720, 733 [trial court could only “admonishthe jury to disregard the prosecutor’s statements; it could not erase them from thejurors’ mind or explain they should notbe considered further without magnifying their impact”].) B. The Prosecutor Argued Facts Not in Evidence The prosecutor argued that if Sandra Ramirez and Alma Cruz wanted to implicate appellant, they would have quoted him assaying,“I’ve got Ricardo and Pelon [Uribe] working on this.” (21 RT 2525.) Appellant objected that the prosecutor was arguing facts not in evidence,butthetrial 60 court overruled the objection and permitted the argument” (21 RT 2625- 2626.) Respondentcontendsthat this argument was simply a rhetorical response to indicate that Sandra and Almacould have madeuptestimony that directly implicated appellant had they wantedtotestify falsely. (RB 118.) Yet, the argument went beyondthis. It was improper becauseit assumedthat Sandra and Alma knewthat Ricardo and Uribe were both implicated in the crime. The only evidenceestablishing that Uribe had assisted Ricardo in committingthe crime wasthe statement that Ricardo madeto the police, which was not admitted against appellant. Respondentpoints to evidence that Uribe heard Ricardo make certain statements, and that he was the one whotold Melindathat Ricardo wantedto talk to her. (RB 118-119.) But none ofthis implicated Uribe in the crime,particularly in any mannerthat would have been apparentto Sandra or Alma. There was a gang meeting. Uribe wasparticipatingin gangactivities. Uribe’s actions took on meaningonlyin relation to Ricardo’s statements. The prosecutor’s argument encouraged the jury to use the information from Ricardo’s statements against appellant. Once Ricardo’s statements were drawninto the case against appellant, the jury could speculate that appellant waspart of a conspiracy to kill the victim. Asthe prosecutor arguedin reference to the three-way conversations,“it doesn’t take a great leap oflogic to see what they weretalking about. Because,if 20. Respondent contendsthat the issue is waived becauseappellant did not request an admonition. (RB 117.) Since thetrial court permitted the argument, any further request for an admonition would have been futile and wasnot required. (People v . Hill (1998) 17 Cal.4th 800, 820.) 61 you recall, it was [Uribe] that got the gun.” (19 RT 2413.) The only way that the jury would knowthat Uribe obtained the gun — or that Sandra and Almamight have named Uribe — was from the information in Ricardo’s statement. By assuming that Sandra and Alma would have namedUribe, the prosecutoreffectively told the jury that he had information that went beyond the evidencein the case against appellant. Under these circumstances, this Court should find that the argument was prejudicial. The evidence against appellant was based upona slenderthread. Therefore, anything that the prosecutor could doto cause the jury to dismiss appellant’s defense andlink appellant to Ricardo’s statement would have weighed heavily. This Court cannotfindthat the prosecutor’s improper argument was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24.) H // 62 XIV. THE PROSECUTOR COMMITTED MISCONDUCT DURING PENALTY PHASE ARGUMENT IMPROPERLY STATED THAT THE CRIME ALWAYS REQUIRED A DEATH SENTENCE AND BY PRESENTING AN EMOTIONAL PLEA TO THE JURORS RECALLING THE CRY FOR VENGEANCE ON THE PART OF THE VICTIM’S FAMILY The prosecutor’s penalty phase argument centered around an emotional plea to the jurors, recounting gravesite visits by the victim’s family and urging the jurors to imposethe death penalty to preservethe rule of law. According to the prosecutor, the fate of his witnesses, Sandra Ramirez and Alma Cruz,rested in the hands ofthe jury, and that ultimately the fate of society depended upon imposition of the death penalty. The argument went beyondthelimits or proper advocacy and violated appellant’s federal andstate constitutional rights to due process and a reliable penalty verdict. (U.S. Const., 8th, & 14th Amends.; Cal. Const.art. I, §§ 7, 15, 17.) A. — The Prosecutor Improperly Argued that the Death Sentence was Needed to Protect the Witnesses in this Case and to Preserve the Rule of Law Over appellant’s objection,the trial court allowed the prosecutorto argue that appellant had placed Sandara Ramirez and Alma Cruzin a very bad position. (23 RT 2856.) The prosecutorusedthis ruling to continue his line of argument: He’s talking about the Mexican Mafia. He’s talking about dues. He’s talking about killing homegirls . . . So when does their nightmare end? Whencan they stop looking overtheir shoulder? (23 RT 2856.) He concluded his argument with a very emotional appeal that placed the jury in the role of protecting these witnesses and society as a 63 whole. Hetold the jury that unlike the victim, the system mustprotect Sandra and Almaandthattheir trust in the system and“their need for justice” wasin the juror’s hands. (23 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. (23 RT 2870.) The trial court “noted” appellant’s objection to the prosecutor’s improper argument butdid not otherwise rule on it. (23 RT 2870.) 1. Prosecutorial misconduct was not waived Respondentcontendsthat any issue was waived becauseappellant did not assign prosecutorial misconduct, obtain a ruling on his second objection, or seek a curative admonition. (RB 128.) Improper argument by the prosecutor constitutes misconduct. (See People v. Hill (1997) 17 Cal.4th 800 [finding numerous instances of improper argumentconstituted misconduct].) Appellant’s objection alerted thetrial court to the prosecutor’s erroneous remarks. Moreover, thetrial court “noted” appellant’s objection and allowedthe prosecutor to proceed. This implicitly overruled the objection. Accordingly, the absence of a request for a curative admonition doesnot forfeit the issue for appealsincethetrial court’s ruling madesuch a request futile. (People v. Hill, supra, 17 Cal.4th at pp. 820-821.) Respondentalso contends that appellant did not object to each ofthe prosecutor’s statements. (RB 128.) However, appellant’s objections respondedto a unified themethat the prosecutor built during his argument. The objections should apply to the theme as a whole. At the very least, the trial court’s failure to sustain appellant’s objections rendered anyfurther objectionsatthe time of the argumentfutile, since appellant otherwise would have had to constantly impose objections even after the trial court 64 allowed the prosecutor to proceed. Under thesecircumstances, this Court mayreview this issue on appeal. (People v. Hill, supra, 17 Cal.4th at p. 820.) 2. The argument inflamed the jury and diverted them from their proper task Respondent contends that the prosecutor’s argument simply urged the jury to find that the killing of a witness was a particularly aggravated form ofhomicide that undermined theentire criminaljustice system. (RB 129.) The argument wentfar beyond this. The prosecutorfirst stated that appellant subjected Sandra Ramirez and AlmaCruz to a continuing nightmare. He concludedbytelling the jury that they must protect the two witnesses. Hetold the jury that the only way to accomplish this was to put appellant to death. The prosecutor’s message was unmistakable — the system hadfailed the victim so that the death penalty was the only waythat the jury could protect Sandra and Alma. This argument was inflammatory becauseit set the jury up to be Sandra and Alma’s personal guardians and diverted the jury from its propertask. The argument lacked evidentiary support because there was no evidence that appellant had threatened Sandra and Alma in any wayorthat they felt endangered by appellant. Appellant’s relationship with Melinda was unique,and hisreaction to her testimony was undoubtedly influenced bytheir past relationship. The crimeitself was committed by his brother, whofaceda life term in prison. Yet, the prosecutorraised the specter ofthe Mexican Mafia and appellant’s “connections”to assert that there was a continuing danger to Sandra and Alma. (23 RT 2856, 2868.) By interjecting the Mexican Mafia as a source of dangerto the witnesses, the prosecutor invokedparticularly inflammatory matters into the penalty 65 decision. (See People v. Bojorquez (2002) 104 Cal.App.4th 335, 344 [evidence about gangthreat to adverse witnesses was highly prejudicial].) Thejury wasleft to believe that the prosecutor had information about the danger to these witnesses and appellant’s gangactivities. They weretold that the witnesses could only be protected if appellant were sentenced to death. And they were told this without evidentiary support to back the prosecutor’s assertions. Thus,it is the type of argumentthat this Court has recognizedas beingparticularly prejudicial. (See,e.g., People v. Hill, supra, 17 Cal.4th at p. 828 [facts not in evidence prejudicial because the jury would rely on prosecutor’s assertions].) 3. The argumentalso placed the jury in the role as the guardian ofsociety The prosecutor extended his argument to make the jury responsible not only for Sandra or Almabuttherule oflaw. Although respondent characterizes the argumentasstating that the crime was a particularly aggravated form of murder, the prosecutor again went beyondthis. The prosecutortold the jury that the death penalty wasnecessary for the system ofjustice to function: It is your job to makesurethat... that trust is not misplaced. Becauseifpeople everfeel that that trust is misplaced, we will not be able to function as a society. We cannot do anything butfall in somesort of chaos if people do nottrust the system, do not even — if they havecertain misgivings, at least be able to say that it is my duty to believe in the system,I will try to follow this, and placetheir lives, their need for Justice in your hands. (23 RT 2868-2869.) The prosecutortied the ability to function as a society to the death penalty in this case: “we cannot, if we are to survive as a society, tolerate this.” (23 RT 2869.) 66 Underthe prosecutor’s rationale, the death penalty would be mandated in every case with this special circumstance. However, society has determinedthat either the death penalty or life without possibility of parole is an appropriate punishment, and justice would be served by either punishment. There was no evidence to showthatin this type ofcase, the death penalty was necessary to preservetherule of law,that it would protect any of the witnesses, or that our survival as a society depended upon it being imposed against appellant. The argumenttherefore was inflammatory and misleading. (See People v. Love (1961) 56 Cal.2d 720, 731 [misleading for prosecutor to suggest that capital punishment is a more effective deterrent than imprisonment].) B. The Prosecutor Improperly Contrasted Life in Prison with the Victim’s Family Visiting the Grave Site The prosecutor engagedin a very emotional argument contrasting Melinda’s family visiting her grave site with appellant’s life in prison. (23 RT 2865-2866.) This argument wasdesigned solely to inflame the emotions ofthe jurors. It set up a standard that no defendant in a capital case could ever overcome. Thevictim’sloss will always be real. A defendant’s sentenceto life in prison will always mean that he orshelives. The appeal to “gut emotion” was improper.2” (Hance y. Zant(11th Cir. 1983) 696 F.2d 940, 952.) 21. Respondentargues that the claim was waived becausethetrial court “noted” appellant’s objection and appellant did not seek an admonition. (RB 130.) As discussed above,thetrial court effectively overruled appellant’s objection by allowing the prosecutorto proceed. Underthese circumstances, appellant was not required to seek an admonition. (People v. Hill, supra, 17 Cal.4th at pp. 820-821.) 67 Respondent contendsthat the prosecutor’s argumentreferred to obvious matters and was based upon the evidence because Melinda’s stepmothertestified that they visited the grave. (RB 130.) That does not diminish the emotionalimpact of the argument. Indeed, respondent does not address the decisions from other courts that have forbidden such argument. As the Oklahomacourt has found,“the State’s contention — it is unfair for [the defendant] to live since [the victim] is dead — creates a super-aggravator applicable in every death case. No amountofmitigating evidence can counter this argument, andif 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 Duckett v. State (Okla.Crim.App. 1995) 919 P.2d 7, 19 [contrasting grave visits with imprisonmentis improper]; Walker v. Gibson (10th Cir. 2000) 228 F.3d 1217, 1243 [prosecutor improperly appealed to the jury’s emotions byreferring to one victim as being “cold in his grave’’].) Moreover, the prosecutor’s description of prison wasnot based upon evidence, but invited the jury to speculate about prison conditions for those serving sentencesoflife without possibility ofparole: “What are you doing? What can you do? Can you read? Can you watch t.v.? Can you work out? Can you havefriends? It might be monastic, but you do have a life.” (23 RT 2865.) Whata prisonerserving life withoutparole in a level IV prison can do maybe very restricted, particularly if placed in a security housing unit because of suspected gang affiliations. (See Cal. Code Regs., title 15, § 3343 [conditions of confinementin security units].) Such conditions are hardly “monastic.” (See Madrid v. Gomez (N.D.Cal.1995) 889 F.Supp. 1146, 1155 [describing conditions of confinementat Pelican BayState Prison].) Theyalsoare irrelevantto the jury’s penalty 68 determination. (People v. Smith (2005) 35 Cal.4th 334, 365 [conditions of confinementnotrelevant to penalty phase],) This argument wasparticularly powerful in this case because it was made soon after Melinda’s grandmother hadtestified that she was obsessed with thoughts of revenge. EdnaSteffan stated that she remained vengeful because Melinda was dead while appellant wasalive and in prison. (23 RT 2819.) Respondent contendsthat Steffan never expresseda personal opinion aboutthe appropriate punishment (RB 131), but the jury certainly would have gotten the message and have been movedby the waythat she contrasted her feelings about vengeance with appellant’s life in prison. The prosecutor’s argument did not occur in a vacuum. It resonated all the more deeply because Steffan’s words were fresh in the juror’s minds. Jurors certainly understoodthat the family’s desire for vengeance wasnotsatisfied bylife in prison. Accordingly, the prosecutor’s argument served no legitimate purpose andcould only have been designedto inflamethe jury. C. Reversal is Required Respondentfinally contends that any misconduct was harmless because the focus on the prosecutor’s argument was the circumstances of the crime andthe applicable sentencing factors. (RB 131.) Yet, the arguments at issue here were woven within that argument and servedas the emotional climaxofhis plea to sentence appellant to death. The prosecutor offered the jury an easy way to make a hard choice: death was required to protect society and the witnessesin this case. It was necessary to avenge the victim’s loss. The prosecutorset up barriersto life imprisonmentthat were impossible for any defendant to overcome. Given the great weight afforded a prosecutor’s words and the quick speed oftheir deliberations,it is clear that the emotional andfar-reaching impact ofthe 69 prosecutor’s argument affected the jurors understandingoftheir duty and ensured that they would vote for death. Accordingly, reversalis required. (People v. Robertson (1982) 33 Cal.3d 21, 54 [any substantial error in penalty phase requires reversal]; People v. Ashmus (1991) 54 Cal.3d 932, 965; Chapmanv. California (1967) 366 U.S.18, 24.) // // 70 XV. THE TRIAL COURT FAILED TO INSTRUCT THE JURORS THAT THEY WERE TO DISREGARD APPELLANT’S RESTRAINTSIN REACHING THE PENALTY VERDICT Appellant was shackledin restraints throughout the entiretrial. Although appellant objected whenthetrial court imposed additional restraints following an incident in the courtroom,thetrial court did not believe that these restraints would bevisible to the jury. (10 RT 1262.) However, during the penalty phase, the jury was made awareofthe restraints through the testimony of one of the prosecution’s witnesses. A sheriff's deputy compared the handcuffs usedin jail with those usedin the courtroom: I walked over to 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 like this. (RT 2792.) This testimony informed the jury that restraints were being used. Accordingly, the trial court was under a sua sponteduty to instruct appellant’s jury that the restraints should play norole in the penalty determination. (See People v. Duran (1976) 16 Cal.3d 282,292.) Respondentcontendsthat the deputy’s testimony indicates that the restraints were not visible. (RB 134.) However,this does not address appellant’s argumentthat regardlessoftheir visibility, the testimony made the jurors aware ofthe restraints. The effect is the sameasifthe jury saw the restraints. Thus, this Court has often framedthe issue as being whether the jurors were aware that restraints were being used, not simply whether the restraints were visible. (See People v. Cunningham (2001) 25 Cal.4th 926, 988 [jurors may have been aware that restraints were being used]; 71 People v. Cox (1991) 53 Cal.3d 618, 652 [finding that jurors were not aware ofshackling].) Thetestimony wasparticularly important in the present case because it would have explained why appellant wasleft in his chair while perspective jurors were questioned in the judge’s chambers. (See Argument III.) It would also have confirmed the prosecutor’s argumentthat appellant wasparticularly dangerous. (See Argument XIV; State v. Finch (1999) 137 Wash.2d 792, 864-865 [975 P.2d 967, 1009] [shackling sends a message to the jury that the defendantis dangerous].) In the penalty phase of a capital trial, this added considerable weight in favor of death. Accordingly, the trial court’s failure to instruct the jury on this matter was prejudicial error. (Chapmanv. California (1967) 366 U.S. 18, 24 [error not harmless beyond a reasonable doubt] People v. Ashmus (1991) 54 Cal.3d 932, 965 | [substantial error in penalty phase requires reversal under both federal and state standards].) HM H 72 XVI. THE TRIAL COURT’S PENALTY PHASE INSTRUCTIONSFAILED TO PROVIDE APPROPRIATE GUIDANCETO THE JURY This Court hasstated thattrial courts should expressly instructthe jury at the penalty phase about whichofthe instructions previously given at the guilt phase should continueto applyat the penalty phase. (People v. Babbit (1988) 45 Cal.3d 660, 718, fn. 26.) In this case, thetrial court instructed the jury to disregardall guilt phase instructions. (24 RT 2883.) Most importantly,it failed to instruct the jury on anyofthe principles of law that were includedin the guilt phase instructions and were applicable at the penalty phase.2” Respondent contends that the evidence in the penalty phase was very straightforward and that the underlying facts were not disputed, making any error harmless. (RB 137-138, citing People v. Moon (2005) 37 Cal.4th 1, 38 [applying harmless error analysis whentrial court failed to instruct the jurors on how they wereto consider penalty phase evidence].) Respondent also notes that this Court has used harmlesserror analysis when a penalty phase jury wasnot instructed aboutthe definition of reasonable doubt. (RB 136,citing People v. Holt (1997) 15 Cal.4th 619, 685 [jurors would not be confused about the meaning of reasonable doubt since they were instructed aboutit in the guilt phase and did not request a further explanation].) Appellant acknowledges that this Court has found that omitting applicable 22. The use note for CALJIC 8.84.1, instructing the jury to disregard guilt phase instructions, indicates thatit is to be followed by all appropriate instructions from CALJIC 1.01 through CALJIC 8.88. This was not done in the presentcase. 73 instructions in the penalty phase may be harmless. This Court should reconsider its opinion. In this case,the jury was notinstructed with anyofthe principles of law to help them evaluate the evidence that was presented. including a numberofinstructions that this Court has said is necessary in the determination of guilt. (See CALJIC 2.20 [Credibility of Witnesses], CALJIC 2.70 [Confessions and Admissions Defined], CALJIC 2.71 [Admission Defined].) They were not given the definition of reasonable doubt. (CALJIC 2.92.) Moreover they were notinstructed concerning other important principles of law, including whetherthe jury should consider whether appellanttestified (CALJIC 2.60) and how the jury should conducttheir deliberations. (See. e.g., CALJIC 17:30 [jury notto take cue from judge]; 17.47 [admonishing against disclosure of the jury’s balloting]; 17.48 [use of notes].) Most importantly, the instruction at issue did not simply omit the guilt phase instructions, but told the jury to affirmatively disregard them. (CALJIC 8.84.1, 5 CT 1094.) This Court must presumethat the jurors did exactly that so that they did not consider anyofthe instructions from the guilt phase. (People v. Sanchez (1995) 12 Cal.4th 1, 79; Turrentine v. Mullin (10th Cir. 2004) 390 F.3d 1181, 1194 [court “cannot presume,for purposes of harmlesserror review, that the jury disregardedits instruction”].) This left the jurors with unfettered discretion to considerthe evidence in whatever way they saw fit. Federal andstate constitutional guarantees of due process and the Eighth Amendmentstandards for reliability in capital cases demand more. (See Eddings v. Oklahoma (1982) 455 U.S. 104, 112 [constitution requires “measured, consistent application” in death penalty determinations].) 74 In instructing the jury to disregard all other instructions,thetrial court failed to provide any assistance to the jury in evaluating and applying the evidence offered in the penalty phase. This Court can have no confidence about what the jury might have believed or what the jury might have applied. By providing no guidance about these matters, the trial court created the type of indeterminate error that defies harmlesserror analysis. This affected the frameworkofthe entire penalty trial. Under these circumstances, this Court should find that instruction wasstructural error, not subject to harmlesserror standards. (United States v. Gonzalez-Lopez (2006) _ ——sU.S.__ [126 S.Ct. 2557, 2565] [indeterminateerroris structural]; Arizona v. Fulminante (1991) 499 U.S. 279, 309-310 [structural error defies harmlesserror analysis]; Sudlivan v. Louisiana (1993) 508 U.S. 275, 277-278 [constitutionally deficient reasonable-doubt instruction is structuralerror].) The factor (b) evidence in this case was the only aggravating factor apart from the circumstancesof the crime. Accordingly,the trial court’s failure to instruct on any ofthe principles of law necessary for the jury to evaluate the strength of the evidence was substantial error. This Court must reverse the penalty judgment. (People v. Robertson (1982) 33 Cal.3d 21, 54 [any substantial error affecting the penalty phase requires reversal].) // HM 75 XVII. CALIFORNIA’S DEATH PENALTY INSTRUCTIONS, STATUTE, AND PROCEDURES ARE FLAWEDIN SEVERAL RESPECTS Appellant has argued that California’s failure to conductintercase review of his death sentence violated his Eighth and Fo urteenth Amendmentrights to be protected from the arbitrary and capricious imposition of capital punishment. (AOB, Argument XVII.) He has also argued that California’s statutory scheme for imposing death is flawed in several respects underthe federal and state constitutions. (AOB, Argument XVIII.) Similarly, he has argued that the instructions defining the scope of the jury’s sentencing discretion and the natureofits deliberative process violated appellant’s constitutional rights. (AOB, Arguument XIX, XX.) In each ofthese instances, respondenthasrelied on previous decisions of this Court that have rejected similar claims. Appellant has acknowledgedthese decisions and asked the Court to reconsider them, either as a matter of law orin the context of this case. The arguments contained in appellant’s opening briefset forth the reasons establishing why this Court shouldrevisit the issues. Since respondent does not address these reasons, the matteris fully joined and there is no needforfurtherbriefing. H HI 76 XXI APPELLANT’S DEATH SENTENCE VIOLATES INTERNATIONAL LAW Appellant has arguedthat his death sentence was unlawfully imposed in violation of international law, covenants, treaties and norms that bind the United States as the highest law of our land. Respondentrelies on this Court’s decisions that have held that international law does not compel the elimination of capital punishment. (RB 145, 147,citing People v. Snow (2003) 33 Cal.4th 44, 127 [death penalty as a regular form ofpunishment does not violate international law].) Appellant submits that this Court should reconsiderits previous decision for the reasons expressed in his openingbrief. It is clear that abolishmentofthe death penalty has becomethe goal of European democracies (see European Union, EU’s Policies on the Death Penalty, June 3, 1998 [objective for other countries to abolish the death penalty]), and is increasingly becoming the prevalent standard throughout the world. (See United Nations Economic and Social Council, Commission on Human Rights, “Status ofthe International Covenants on HumanRights,” (2003) E/CN.4/2003/106.) Thus, abolishmentof the death penalty has becomethe customary law ofnationssimilar to our own. But even assuming that the death penalty itself can be imposed under international law, this Court should consider the specific application of the international standardsto the judgmentin this case. (AOB 210-216.) 23. For the convenienceofthe Court, this argument is numbered to correspond to the identification used in appellant’s openingbrief. Thereis a gap in the numbering because appellant consolidated the previous claims (XVII-XX). 77 Respondentcontends that international law does not confer any private rights andthat appellant has nostanding to challenge violations of international law. (RB 146.) Recently, in Sanchez-Llamasv. Oregon (June 28,2006) ___ U.S____ [126 S.Ct. 2669], the United States Supreme Court assumed, without deciding, that the Vienna Convention conferred individual rights upon the plaintiffs. Justice Breyer would have reachedthis decision and found thattreaties can confer rights on individuals. As he explained, the standingof individuals to challenge violations of internationaltreaties in criminal cases is well-settled. (Id. at p. 2696 (dis. opn.ofBreyer,J.), citing United States v. Rauscher (1886) 119 U.S. 407 [dismissing criminal indictmentthat breached extradition treaty]; Kolovrat v. Oregon (1961) 366 U.S. 187, 191, n. 6, [foreign nationals could use treaty right to challenge a state law limiting their right to recover an inheritance]; Asakura y. Seattle (1924), 265 U.S. 332, 340 [foreign national challenged a city ordinanceonthebasis ofa treaty provision].) Theprinciples of international law extendnot only to protect the _ “sovereign interests of nations,” as respondent contends (RB 145), but to “govern the relationship between anindividual andhis state.” (United States v. Duarte-Acero (11th Cir. 2000) 208 F.3d 1282, 1286 [citing specific treaty provision in the International Covenant on Civil and Political Rights (ICCPR)]; see also Convention Against Torture (CAT), art. 14 [treaty provides “enforceable right” of individuals]; International Convention on the Elimination of All Forms of Racial Discrimination (CERD), art. 6 [parties must ensure that individuals have effective remedies].) Accordingly, the United States Supreme Court has used both treaties and the customary law of nations to determine questions under international law. (See The Paquete Habana (1900) 175 U.S. 677, 700, 78 [“trustworthy evidence of what [international] law really is” can be found in the worksofjurists and commentators].) The Court hasalso recognized that international law may conferrights on individuals, which giverise to judicial review and remedies. (See Valentine v. United States (1936) 299 U.S. 5, 10 [quashingcriminal warrants after a violation of an extradition treaty]; Cook v. United States (1933) 288 U.S. 102, 120 [voiding criminal fines that violated treaty requirements].) At a minimum,a potential conflict between state law and international law obligations mustbe reviewed and resolved by the courts. (See, e.g., Blue Star Line, Inc. v. City and County ofSan Francisco (1978) 77 Cal.App.3d 429 [application of a municipal payroll tax to international steamship lines operating in California was notbarred under foreign treaties or the Supremacy Clause].) Due process and Eighth Amendmentstandards also require courts to determine whether international law and the customary law ofnations compelour laws and procedures to be re-examined. (See Rochin v. California (1952) 342 U.S. 165, 169 [due process obliges courts to ascertain whether laws offend “those canons of decency and fairness which express the notions ofjustice of English-speaking peoples”); Atkins v. Virginia (2002) 536 U.S. 304 [122 S.Ct. 2242, 2249,fn. 21] [that the “world community” disapproves of executing the mentally retarded supports the conclusionthatit violates the Eighth Amendment]; Lawrence v. Texas (2003)539 U.S. 558, 576 [citing decisions of the European Court of Human Rights as persuasive authority]; Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183,1 198-1200] [citing international abolition ofjuvenile death penalty].) Respondentcontendsthat appellant hasfailed to establish the “basic prerequisite” of a violation ofstate and federal law. (RB 145.) 79 International law may implicate standards that go beyond domestic law. As appellant has demonstrated, international law permits the death penalty only if the guilt of the individualis established through “clear and convincing evidence “leaving no roomfor alternative explanation ofthe facts.” (See “Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty” (1984) ECOSOCRes. 1984/50, { 4, endorsed by the General Assembly in res. 39/118 ofDec 14, 1984; see European Union, “Policy Towards Third Countries on the Death Penalty,” General Affairs Council, June 29, 1998 [adopting standard].) Appellant’s conviction, resting primarily upon a single ambiguous statement to a gang member, cannot be supported under this standard. (AOB 210-211.) Similarly, international law imposesan obligation to remedyracial injustice. (International Convention on the Elimination of All Forms of Racial Discrimination (CERD), 660 U.N.T.S. 195, art 1.) It looks not just to the purpose underlyinga particular action, butits effect. (See Inter- American Commission on Human Rights, Report no. 57/96, Case 11.139 [Andrews v. United States, 1997 [ACHR 570, 159] [applying objective purpose or effect rule to find that racial discrimination violated right to fair and impartialtrial and rightto life].) The prosecutorin this case violatedits principles by excluding African-Americansfrom jury service and implicated appellant’s right to an impartial tribunal. (AOB 211-212.) Asappellant demonstrated in his openingbrief, international law provides important guarantees of an impartial tribunal, the right to a full and fair hearing, andprotections from prosecutorial misconduct. These issues strengthen and expand the claims that appellant has presented beforethis Court. This Court should therefore review the issues raised in appellant’s openingbrief in light of the specific provisions of internationallaw. 80 XXII. CUMULATIVE ERROR REQUIRES THAT THE GUILT AND PENALTY VERDICTS BE REVERSED Even assuming that noneofthe errors identified by appellantis prejudicial standing alone, the cumulative effect of these errors undermines the confidencein the integrity of the guilt and penalty phase proceedings. Respondent simply contendsthat there wereno errors requiring reversal of the guilt or penalty verdicts. (RB 148.) Noreply is therefore necessary to respondent’s contention. However, cumulative error may require reversal evenif errors are not prejudicial in themselves. (See Thomas v. Hubbard, (9th Cir.2001) 273 F.3d 1164, 1180[errors that might not be so prejudicial as to amountto a deprivation of due process when considered alone, may cumulatively producea trial setting that is fundamentally unfair”); Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 884 [same].) Therefore, should this Court find errors that it deems non-prejudicial when considered individually, it should reverse the judgment based on the cumulativeeffect of thoseerrors. // // 81 CONCLUSION Forall the reasons stated above andin appellant’s openingbrief, the entire judgment and sentence of death mustbe reversed. DATED: 7-3/- O€ Respectfully submitted, MICHAEL J. HERSEK State Public Defender Ail 1 ARNOLD ERICKSON Deputy State Public Defender 82 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT,RULE36(B)(2)) I, Arnold Erickson, am the Deputy State Public Defender assignedto represent appellant, Juan Manuel Lopez,in this automatic appeal. I conducted a word countofthis brief using our office’s computer software. Onthe basis of that computer-generated word count, I certify that this brief is 21,133 wordsin length excludingthe tables andcertificates. AMM Arnold Erickson Dated: July 31, 2006 DECLARATION OF SERVICE Re: People v. Juan Manuel Lopez No. 8073597 L.A. Superior Ct. No.: PA023649-01 I, GLENICE FULLER, declare that I am over 18 years of age, and nota party to the within cause; my business address is 221 Main Street, 10th Floor, San Francisco, California 94105. A true copyofthe attached: APPELLANT’S REPLY BRIEF on each ofthe following, by placing same in 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 July 31, 2006, 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 of perjury that the foregoingis true andcorrect. Executed on July 31, 2006,at San Francisco, California. Molehdler ,DECLARANT/