PEOPLE v. JONES (KIONGOZI)

Appellant’s Opening Brief

Cal.October 15, 2010

SUPREME COURT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA Plaintiff and Respondent, vs. KIONGOZI JONES, Defendant and Appellant. caus ornCOPY Los AngelesSuperior Court No. NA031990-01 SUPREME Ce oO Fic E De OCT 15 2919Frederic; K. Uninien Clerk APPELLANT’S OPENING BRIEF DEPUTY ———— Appeal from the Judgmentof the Superior Court of the State of California for the County of Los Angeles The Honorable Bradford L. Andrews MICHAEL J. HERSEK State Public Defender Jessica McGuire Assistant State Public Defender Cal. State Bar No. 88563 Attorneys for Appellant PAGE(s) APPELLANT'S OPENING BRIEF ........00.cccccceeeeeeees 1 STATEMENT OF APPEALABILITY wee eee eee eens 1 STATEMENTOF THE CASE ...... ccc ccc cece eee 1 STATEMENT OF FACTS ......... 000 cece cece cece eens 7 A. Introduction .. 0... cece eee eae 7 B. The Lopez/Mungia Shooting .................- 11 1. Eyewitness Testimony wt aeeesveces 11 (a) Veronica Mungia.................. 11 (b) Amber Gutierrez cette eee 12 (c) AnnaGranillo ........... cece 14 2. The Forensic Evidence ................. 16 (a) Dale Higashi ...................-.. 16 (b) Suko Jack Wang, M.D. ............. 17 C. The Villa/Hernandez Shooting ...... wees 17 1. Eyewitness Testimony .. 2.2.2... 00 e eee 17 (a) Maria Jaramillo .................. 18 “ TABLE OF CONTENTS (b) NeryHernandez ............ scenes 20 (c) Robert Elder ..................... 21 ~ TABLE OF CONTENTS PAGE(s) 2. The Forensic Evidence .....eee e eens 23 (a) Thomas Gill ...... 0.0... eee ee eee 23 Appellant’s Whereabouts On the Night of the Crimes .. 0.0... ccc eee eee 24 1. Officers Kohagura and Anderson ......... 24 (a) Officer Peter Anderson ............ 24 (b) Officer Ernie Kohagura ............ 26 2. Leslie Rainey...........005CL eaeeeueeees 27 Gang-related Evidence .... 6.0.56 cece eee eens 29 1. Detective Steven Lasiter ...........-005: 29 2. Officer Michael Schaich...... nee ee eee 29 3. Officer Freeman Potter ............00000: 30 Penalty Phase Evidence ......... wee ennees 32 1. Aggravating Evidence. . cee nee eneeaes 32 (a) Carl Milling Murder ........00++ee- 32 (b) Sao Sarom Carjacking eee eee 34 (c) Artis Lisby Robbery .............4- 34 (d) Ronald Broussard Murder .......... 35 (e) Matthew Ferguson and Quincy Saunders Shootings ..........0.0.. 35 ~* TABLE OF CONTENTS PAGE(s) (f) Possession of a Loaded . 232 Revolver ... 0... c eee eee 36 (g) Victim Impact Testimony ........... 36 2. Mitigating Evidence ..............000- 36 (a) Valerie Williams .................. 36 (b) Robert Robinson ...............-. 36 (c) Helene Cummings ................ 37 (d) Jonathan Chaney ..............05. 37 APPELLANT WAS DEPRIVEDOFHIS RIGHTS TO CONFRONT ADVERSE WITNESSES AND TOA FAIR TRIAL BY THE TRIAL COURT’S RESTRICTION OF CROSS EXAMINATION OF PROSECUTION WITNESSES REGARDING THE CIRCUMSTANCES LEADING UP TO ANNA GRANILLO’S ELEVENTH HOUR DECISION TO CHANGE HER STORYAND TESTIFY THAT SHE HAD SEEN APPELLANT ON THE GROUNDS OF THE APARTMENT COMPLEX SHORTLY BEFORE THE SHOOTINGS .. 0... ccc eee eeeteenies 39 A. Introduction... 2... . cece ee eee 39 B. The Circumstances Leading up to Anna Granillo’s Testimony .........0..0c0cceeeaaes 40 C. . The Trial Court’s Ruling in the First Trial........ 41 D. The Trial Court’s Ruling in the Second Trial ..... 43 E. The Evidence Counsel Sought To Elicit Was Not Hearsay ........ 0.0 e eee eee eee ees 44 ~ TABLE OF CONTENTS PAGE(s) Appellant Was Deprived Of His Right Under The Sixth And Fourteenth Amendments To Cross-examine Granillo, Mungia and Collette About What Granillo Had Been Told About Mungia’s Conversation with the Prosecutor In Order to Establish that Granillo had a Motive to Fabricate ............. 45 Appellant Was Also Deprived Of His Right To Due Process Of Law, His Right To Present A Defense, And His Right To A Reliable Penalty Determination, Due To TheTrial Court's improper Restriction Of Defense Counsel's Cross-examination .....eee cede n cena ee eeeeen 47 By Restricting Counsel’s Cross- - Examination, The Court’s Erroneous Ruling Prevented Appellant From Pursuing Critical Impeachment And Was Therefore Highly Prejudicial:............ 0000: 49 THE ERRONEOUS EXCLUSION OF ROBERT ROBINSON’STESTIMONYIN THE GUILT PHASE DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHTS TO PRESENT HIS DEFENSE AND TO A FAIR TRIAL AND RELIABLE VERDICT eee eee seveesctecrse 51 A. Introduction ........cc cece eect eee wee eeaee 51 B. -. Robinson Should Have Been Permitted to Testify As a Gang Expert That, In His Expert Opinion, Appellant Was No Longer An Active Gang Member ........-- 0.000 aueneta ee eee 57 ~ TABLE OF CONTENTS PAGE(s) 1. Robinson Was Qualified to Testify as a Gang Expert ................ 57 2. A Gang Expert Is Permitted To Testify Whether, !n His or Her Opinion, the DefendantIs or Is Not an Active Gang Member ........ 0.0 0c cece eeeenees 57 3. As a Gang Expert Robinson Could Rely On Hearsay, Including Appellant’s Own Statements, In Forming His Opinion, And Could Testify as To the Basis of That Opinion 2.0.0.0... cee eee eee eee 58 EvenIf Merely a Percipient Witness, Robinson Should Still Have Been Allowed to Testify That (1) Appellant Had a Reputation When the Crimes Were Committed as Someone Who Had Eschewed the GangLifestyle, and (2) Robinson’s Opinion, Based Upon His Personal Perception of Appellant’s Behavior, Was That Appellant Was Not an Active GangMember ...... beeen eee nee 60 -1. Reputation Evidence .....Sen60 2. Lay Opinion Testimony ................. 62 The Erroneous Exclusion of Robinson’s Testimony Deprived Appellant of His - Constitutional Right to Present His Defense ..... 63 ~ TABLE OF CONTENTS PAGE(s) E. The Erroneous Exclusion of Robinson’s Testimony Also Deprived Appellant of His Rights Under the Fifth, Eighth And Fourteenth Amendmentsto a FairTrial and Reliable Guilt and Penalty Determinations .........6cc cee e eee eee eee eee 69 F. The Erroneous Exclusion of Robinson’s Testimony Was Extremely Prejudicial to Appellant’s Defense, and Under Both the . Federal and State Harmless Error Tests Requires Reversal ...........eee eee eens 70 THE TRIAL COURT COMMITTED PREJUDICIAL ERRORIN PERMITTING THE PROSECUTION TO INTRODUCE A TAPE RECORDINGOF APPELLANT’S PHONE CONVERSATIONWITH HIS BROTHER CONDUCTED WHILE APPELLANT WAS HOUSED N THE LOS ANGELES COUNTY JAIL ............. 174 | A. The RecordBelow ...... cc ccc ccc cece ee ences74 B. The Taped Phone Conversation WasIrrelevant and Should Not Have Been Playedfor the Jury and Admitted into Evidence ...........eeeeees 87 C. Ata Minimum,the Trial Court Should Have Excluded the Tape Pursuantto Evidence Code Section 352, Because Any Probative Value ItMight Arguably Have Had WasFar OutweighedbyIts - Prejudicial Impact ...... 0.00. eee eee eee 91 D. The Tape Recording and Transcript Should Also Have Been Excluded Because the Tape Recording Was Unintelligible ................. 93 vi TABLE OF CONTENTS PAGE(s) (1) The Tape Was NotSufficiently Intelligible to Be Relevant Without Creating an Inference of Speculation ................ 94 (2) The Trial Court's Error in Allowing it To Be Played Was CompoundedbyPermitting Use by the Jury of the Contested Transcript as a Guide While Listening . fo the Tape ... 0... cece eee eee 95 E. Admissionof the Tape and Use of the Transcript Violated Appellant's Constitutional Rights ............. 0. cece 98 F. The Erroneous Admission of the Tape Recording and Transcript Was Highly Prejudicial and Requires Reversal Under Both Federal and State Standards ............. 99 APPELLANT’S CONVICTION OF CAPITAL _ MURDER MUST BE REVERSED BECAUSE CALIFORNIA’S MULTIPLE MURDER SPECIAL | CIRCUMSTANCEIS UNCONSTITUTIONAL .......... 103 THE TRIAL COURT’S IMPROPER EXCLUSION FOR CAUSE OF PROSPECTIVE JUROR3389 REQUIRES REVERSAL OF APPELLANT’S DEATH SENTENCE .......... cee eee nee eee eee enee 108 A. Summary of Argument ........eeu eee ueues 108 _B. ~~ The Record Below ........ 0.00. ee eee wee eeee 109 vii ” TABLE OF CONTENTS PAGE(s) The Trial Court Exceeded Its Constitutional Limitations When It Excluded Juror 3389 on the Grounds That He Had a “Bias in Favorof Life,” and the Death Judgment MustBe Reversed Because Juror 3389 Was Qualified to Serve Under the Governing Standard .............5. 112 1. The Witherspoon-Witt Doctrine Sets Fortha Standard, a Procedure on Review, and a Constitutional Limitation of Trial Courts’ Powerto Exclude Potential Jurors in the Context of a Capital Trial ............... 112 This Court’s Precedent Makes Clear That a Juror is Not Disqualified Under the Witherspoon-WittStandard Simply Because He or She Does Not Believe in the Death Penalty and Would FindIt Very Difficult to Sentence Someone to Death ............ 120 The Trial Court Applied the Wrong Legal Standard and Disqualified Juror 3389 Merely Because He Hada PreferenceforLife Without the Possibility of Parole ........120 Underthe Correct Constitutional Standard the Trial Court’s Disqualification of Juror 3389 is Unsupported by Substantial Evidence and the Death Judgment Must Therefore Be Reversed .......00eceeeus 125 ‘Conclusion 1... cc cee eee een eee 127 vili ~ TABLE OF CONTENTS PAGE(s) Vi. THE ADMISSION OF EVIDENCE OF PRIOR UNADJUDICATED CRIMINAL ACTIVITY VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS REQUIRING REVERSAL OF THE DEATH JUDGMENT 2.2... . ccc ccc cece eee eee eee 128 A. Introduction .. 0... .. 00 ccc cee ee eee eee eee eee 128 B. The Use of Unadjudicated Allegations Violated Appellant's Constitutional Rights, Including His Fifth, Sixth, Eighth and Fourteenth AmendmentRights to Due Process and a Reliable Penalty Determination ........ 0.0 ccc ence eens 129 Vil. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL VIOLATES THE UNITED STATES CONSTITUTION 1.0... . 0. ccc cence eee 135 Vill.. REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS THAT UNDERMINED THE FUNDAMENTALFAIRNESS OF THE TRIAL AND THERELIABILITY OF THE DEATH JUDGMENT ............5. ween ene 151 CONCLUSION .. 0... cc cece cece eee nee eee eeeeueeeas 154 RE c.f At e YsTABLE OF AUTHORITIES CASES PAGE(s) Adamsv. Texas e (1980) 448 U.S. 38 2.eee112, 113)115 Ake v. Oklahoma sh (1985) 470 U.S. 68 2...neeeee eae . 130 Alcala v. Woodford . (9th Cir. 2003) 334 F.3d 862 220.ees 151 , le Apprendi v. New Jersey 7 (2000) 530 U.S. 466 2...eee13% 142 F Arave v. Creech PF (1993) 507 U:S. 463 20.eee. 104 Ballew v. Georgia S (1978) 435 U.S. 223 eens.».140 U Banksv. Dretke (2004) 540 U.S. 668 ... 0.eeeeen enews 47 > Beck v. Alabama (1980) 447 U.S. 625.0...eee49, 70, 99, 152 Blakely v. Washington ‘i (2004) 542 U.S. 296 ........ 0...re 137, 142 Blystone v. Pennsylvania . (1990) 494 U.S. 299... 2.eeeee 143 Boulden v. Holman (1969) 394 U.S.478 20...eens113 Boydev. California (1990) 494 U.S. 370 2...eee 143- 144 Brewer v. Quarterman (2007) 550 U.S. 286.1... eee eeeeee een ees 144 ~ TABLE OF AUTHORITIES CASES PAGE(s) Caldwell v. Mississippi (1985) 472 U.S. 320 0eee152 California v. Trombetta (1984) 467 U.S.479 200eee 63- 64 Cargle v. Mullin (10th Cir. 2003) 317 F.3d1196 .................-...2.... 151 Carterv. Kentucky (1981) 450 U.S. 288 2.00ee 137- 138 Chambers v. Mississippi (1973) 410 U.S, 28420eee passim Chapmanv. California (1967) 386 U.S.18 20.ene passim Crane v. Kentucky (1986) 476 U.S. 683,690 ........ 00... eee passim Cunningham v. California (2007) 549 U.S. 270 2...nes 137, 142 Davis v. Alaska (1974) 415 U.S. 308.0... 0... eee cece eee enes 45, 65 Davis v. Georgia (1976) 429 U.S. 122 .cece113 Delaware v. Van Arsdall (1986) 475 U.S.673 2.0.enseee 47 Delo v. Lashley (1983) 507 U.S. 272 0eens 146 DePetris v. Kuykendal . (9th Cir.2001) 239 F.3d 1057 ...............reeee eee 47 xi -TABLE OF AUTHORITIES CASES PAGE(s) Donovan v. Davis (4th Cir. 1977) 558 F.2d 201 20.132 Duncan v. Henry | (1995) 513 U.S. 364 2.tenes98 Eddings v. Oklahoma (1982) 455 U.S. 104 20.ees130 Estelle v. Willlams (1976) 425 U.S. 501 2.tenes145 Furman v. Georgia (1972) 408 U.S. 238 02.2nee103, 107 Gray v. Mississippi (1987) 481 U.S. 648 20eee113, 117, 127 Green v. Georgia os (1979) 422 U.S.95 2...eee47, 65, 67 Groppi v. Wisconsin (1971) 400 U.S. 505 .......... Ldn ee ene eee teen e eens 132 Harmelin v. Michigan (1991) 501 U.S. 957 .....eee eet ee ee teens 140 Harris v. Wood. (9th Cir. 1995) 64 F.3d 1432 22...eee eee 151 Hicks v. Oklahoma a (1980) 447 U.S. 343 2...eee134, 139,144 Holmesv. South Carolina (2006) 547 U.S.319 2.0.0... eee eee ee es 63, 64, 65, 67 HomeTeleph. & Teleg. Co. v. Los Angeles (1913) 227 U.S. 278 2...tee68 xi! ~ TABLE OF AUTHORITIES CASES PAGE(s) In re Freeman (2006) 38 Cal.4th 6302.ceeee 61 In re Winship (1970) 397 U.S. 35820eens99 Irvin v. Dowd | (1961) 366 U.S. 717.0... 200...ee ee teens 132 Johnson v. Mississippi (1988) 486 U.S.578200134, 141 Killian v. Poole (9th Cir. 2002) 282F.3d 1204.2...ee151 Leonard v. United. States (1964) 378 U.S.544cence133 Lewis v. Jeffers (1990) 497 U.S. 764 000eee ... 103- 104 Lewis v. United States (1892) 146 U.S. 370 20cece133 Lockett v. Ohio (1978) 438 U.S. 586.0000...oe eae 144, 147,152 Lockhart v. McCree (1986) 476 U.S. 162 00cccnee eee 117 Lowenfield v. Phelps (1988) 484 U.S. 231 2000,bees 105- 106 Mak v. Blodgett | | (9th Cir. 1992) 970 F.2d614 ............re151 Maxwell v. Bishop (1970) 398 U.S. 262 00.cece113 xiii -TABLE OF AUTHORITIES - CASES PAGE(s) Maynard v. Cartwright (1988) 486 U.S. 356 20.ee136, 142 -McKoyv. North Carolina (1990) 494 U.S. 433 20.ceeee 140, 145 Michigan v. Lucas (1991) 500 U.S. 14500eens66 Mills v. Maryland (1988) 486 U.S. 367 .. 0...eee144, 145, 147 . Mongev. California (1998) 524 U.S. 721 20teens 140 - Montana v. Egelhoff (1996) 518 U.S. 37 20.cceee 151 Morganv.Illinois (1992) 504. U.S. 719 2...ene120 Murdoch v. Castro (9th Cir. 2004) 365 F.3d699 ©...0.eee47 Myers v. Y1st (9th Cir. 1990) 897 F.2d 417 2...eee 141 Parker v. Dugger (1991) 498 U.S. 308 20.teens 130 Parker v. Gladden (1966) 385 U.S. 363 .............0..ee152 Patton v. Yount (1984) 467 U.S. 1025 2...cceens 116 People v. Abilez (2007) 41 Cal.4th 472 00tees 120 XIV ~ TABLE OF AUTHORITIES CASES PAGE(s) People v. Anderson (1987) 43 Cal.3d 1104 2...eee105 People v. Anderson (2001) 25 Cal.4th 543 20...eee 137, 138, 141 People v. Archer (2000) 82 Cal.App.4th 1380 ... 00...eee45 People v. Arias . (1996) 13 Cal.4th92 20.nee 139, 143, 146 People v. Avila (2006) 38 Cal.4th 491 00.eeeee 147 People v. Ayala (2000) 23 Cal.4th 225 2...ee66 People v. Babbitt (1988) 45 Cal.3d 660 2.0...ee87 People v. Bacigalupo (1993) 6 Cal.4th 45720.eee143 People v. Blair (2005) 36 Cal.4th 686...............0...eens 136, 138 People v. Bolden (1996) 44 Cal. App. 4th 707-714-715 .............. bee eee 44 People v. Breaux (1991) 1 Cal.4th 2812.0.142 _ People v. Breverman (1998) 19 Cal.4th 142 20.eee. 137-138 People v. Brown (1988) 46 Cal.3d 432.000.0000.eee 134 XV -TABLE OF AUTHORITIES CASES PAGE(s) People v. Brown (1990) 275 Cal.App.3d 585 ..........-.05-. eee e eee eee 97 People v. Brown (2004) 33 Cal.4th 382, 401.0...eee 136 People v. Buffum (1953) 40 Cal.2d 709 2.0...eeeee 151 People v. Burton (1989) 48 Cal.3d 843 2.0.eeees 131 People v. Bustamante (1981) 30 Cal.3d 88 ...... 2. ee eeebeeen eee 101 People v. Cardenas (1982) 31 Cal.3d 897 ......cece eee ee eee tenes 100 People v. Caro (1988) 46 Cal.3d 1035 2.0.0eee130 People v. Carter (2003) 30 Cal.4th 1166...00ees72 People v. Coddington (2000) 23 Cal.4th 529 6.1...eeescenes 105 People v. Coleman (1988) 46 Cal.3d 749 ............See eeene eben d ga ennees 120 People v. Cook (2006) 39 Cal.4th 566 2.0...eeee147, 149 Peoplev. Cooper (1993) 53 Cal.3d 771 00...eee120 People v. Cox (2003) 30 Cal.4th 916.0...ceees 91 | ~ TABLE OF AUTHORITIES CASES | PAGE(s) People v. Crew (2003) 31 Cal.4th 822 20.cee91 People v. Crittenden (1994) 9 Cal.4th 83.2.0...ee.... 87, 120 People v. Cuccia (2002) 97 Cal.App.4th 785 20...cee151 People v. Cudjo (1993) 6 Cal.4th 585 2...een66, 69 People v. Cunningham (2001) 25 Cal4th 926.........eee eee eee 119- 120 People v. Davenport (1985) 41 Cal.3d 247......0.00. 0.0...eee 131, 148 People v. Davis (1994) 7 Cal.4th 797 2...ceceeee 105 People v. Davis (2009) 456 Cal.4th $39.0...ceeee 87 People v. Demery (1980) 104 Cal.App.3d 548 2.00...ee. 94- 95 People v. Duncan (1991) 53 Cal.3d 955 2.0...eee144 People v. Duran (2002) 97 Cal.App.4th 1448 ..... 0...ee58 People v. Earp (1999) 20 Cal.4th 826.0...0.eee120 People v. Eli (1967) 66 Cal.2d 63 2...eee61 TABLE OF AUTHORITIES CASES PAGE(s) People v. Fairbank (1997) 16 Cal.4th 1223 2...eee137 People v. Fauber (1992) 2 Cal.4th 792...ene146 People v. Felix (1999) 70 Cal.App.4th 426 0...eens62 People v. Fierro (1991) 1 Cal.4th 173 00.cts148 Peoplev. Filson (1994) 22 Cal.App. 4th 1841 2.0... eeeee91 People v. Frierson (1985) 39 Cal.3d 803 ............ Lc eee ee ee eee ene 132 Peoplev. Gamez (1991) 235 CalApp.3d 957 2.06...eeee 58- 59 People v. Garceau (1993) 6 Cal.4th 140...eee87 People v. Garcia (2007) 153 Cal.App.4th 1512-1514 reeee eee 58 People v. Gardeley (1997) 14 Cal.4th 605 2...ceeee 57-59 People v. Ghent . (1987) 43 Cal.3d 739 2...etes 149 People v. Gonzalez (2006) 38 Cal.4th 932.00.eeees 59 People v. Green (1980) 27 Cal.3d 1 .......... 00... eee. beeen eee . 103 xvili ~ TABLE OF AUTHORITIES CASES PAGE(s) People v. Griffin (2004) 33 Cal.4th 536 2...eeeeee 138 People v. Hamilton (1986) 41 Cal3d 408 «0.0...eee90 People v. Hamilton (1989) 48 Cal3d 1142 0... s148 People v. Hamilton (2009) 45 Cal.4th 863 ........00 0000.00. eeeeens 124 People v. Hardy (1992) 2 Cal.4th 86 2...cece eee 131 People v. Hawthorne . (1992) 4 Cal.4th 43.00.0000.ae137 People v. Heard (2003) 31 Cal.4th 946 .........0.........08.. 87, 113, 123; 127 People v. Heishman (1988) 45 Cal.3d 147 20...eens 130 People v. Hernandez . (2003) 30 Cal.4th 835 2...eeetee 154 People v. Hill (1998) 17 Cal4th 800 .................04.ne151 People v. Hillhouse (2002) 27 Cal.4th 469.00.cee148 People v. Holt (1984) 37 Cal.3d 436 0.0.0... ee bene e eee 151 People v. Johnson (1984) 159 CalApp,3d 163 ........... 0.0... ceeeee 44 xix TABLE OF AUTHORITIES CASES PAGE(s) People v. Johnson (1989) 47 Cal.3d 1194 .......... Leen ee ee ne ee ene 120 People v. Jones (2003) 29 Cal.4th 1229.0...eens 120 People v. Kaurish . (1990) 52 Cal.3d 648 2.0...eee123 People v. Kelly (1980) 113 Cal.App.3d 1005 2.0...ene 144 People v. Kennedy (2005) 36 Cal.4th 595 ..........0.. 000000040.re136 People v. Kipp (2001) 26 Cal.4th 1100 2...nee91 People v. Kraft (2000) 23 Cal.4th 978.1... 2... ee eeeeee eee 64 People v. Ledesma (2006) 39 Cal.4th 641....... ence eee eee 103, 109 People v. Lenart (2004) 32 Cal.4th 1107 .............0 0046.re139 People v. Lewis (2001) 25 Cal.4th 610...eee131 People v. Lewis (2008) 43 Cal.4th 415 2...eeeee 124 People v. Louie (1984) 158 CalApp.3d Supp 28 0.0...eee 90 People v. Manriquez ; (2005) 37 Cal.4th 547 20...eee*... 149 ~ TABLE OF AUTHORITIES CASES PAGE(s) People v. Martinez (1995) 11 Cal.4th 434 000eenee 91 People v. McDaniels (1980) 107 Cal.App.3d 898 2.0...0.ee59 People v.McDerrmott (2002) 28 Cal.4th946 .......... 0... eeeeee 108 People v. McAlpin (1991) 53 Cal.3d 1289 .......... 0... ceeLecce ee ees 61 People v. Medina (1995) 11 Cal.4th 694 20.cee141 People v. Miley (1984) 158 CalApp.3d 25 2.0...eeeee 96 People v. Moon (2005) 37 Cal.4th 1...ceeene 103 People v. Moore (1954) 43 Cal.2d 517 20eeeens 144 People v. Morales (1989) 48 Cal.3d 527 ...............0... Leet eens 131 People v. Morrison (2004) 34 Cal.4th 698 2...eeeee 66 People v. Ochoa (2001) 26 Cal.4th 398 00.eeeen 125 Peoplev. Pensinger (1991) 52 Cal.3d 1210 2...eee131 People v. Pierce (1979) 24 Cal.3d 199 ... 0...eee 132, 152 TABLE OF AUTHORITIES CASES PAGE(s) People v. Polk (1996) 47 Cal App. 4th 944 2...eeeee 95 People v. Prieto (2003) 30 Cal.4th 226 .................eee ees 138, 140 People v. Rice (1976) 59 Cal.App.3d 998 .......... 6. eee eee eee ee 144 People v. Riggs (2008) 44 Cal.4th 248 00...eee124 People v. Roldan (2005) 35 Cal.4th 646 20...eeee ee M19 People v. Samayoa . (1997) 15 Cal.4th 7950...nee120 People v. Sapp (2004) 31 Cal.4th 240 2...ee107 People v. Scalzi (1981) 126 Cal.App.3d 901 ............ 0. eee eeeeee 44 People v. Schmeck (2005) 37 Cal.4th 240.....reeect ees 135 People v. Sedeno (1974) 10 Cal.3d 703 2.0...eeneeee137 People v. Sengpadychith (2001) 26 Cal.4th 316 20...nee59, 149 Peoplev. Siripongs (1988) 45-Cal.3d 548 00...ees94 People v. Snow (2003) 30 Cal.4th 43 ........... knee eee eee e eee eee 149 xxii ~ TABLEOF AUTHORITIES CASES PAGE(s) People v. Stewart (2004) 33 Cal.4th 425.000... eee. 108, 109, 120,123 People v. Taylor (1990) 52 Cal.3d 719 2.0...eeeeee 140 People v. Valdez (1997) 58 Cal.App.4th 494.000... eee. eee eee 58 People v. Von Villas (1992) 11 CalApp.4th 175 20.2...95 People v. Waidlaw (2000) 22 Cal.4th 690...eee90 People v. Ward (2005) 36 Cal.4th 186.0.eee58, 142 People v. Wheeler - (1978) 22 Cal.3d 258 2.0...ens1.4 People v. Williams (1971) 22Cal.App.3d 34 2000.ee152 Peoplev. Williams (1988) 44 Cal.3d 883 ...............0...eects . 139 People v. Williams (1997) 16 Cal.4th 635 00.ceeeee 120 People v. Wilson . (2008) 44 Cal.4th 758 2...eee 119- 120 Peoplev. Zermeno . (1999) 21 Cal.4th 927 0...eee58 Pointer v. United States (1894) 151 U.S. 3962.ee133 xxiii STABLE OF AUTHORITIES CASES | | PAGE(s) Ring v. Arizona . (2002) 536 U.S. 584 2.6eee 137, 140, 142 Rockv. Arkansas . (1987) 483 U.S.44 20eee65, 67, 70 Roper v. Simmons (2005) 543 U.S. 551 2...eee150 Saunders v. Shaw _. (1917) 244 U.S. 317 2.0teens68 Skipper v. South Carolina (1986) 476 U.S.1 0.teens68 Spaziano v. Florida (1984) 468 U.S. 447 20.eneeee eee 130 Stringer v. Black (1992) 503 U.S. 222 .ees148 Taylorv. Illinois (1988) 484 U.S. 400 ....0.eeeee 63, 65, 66 Trop v. Dulles . (1958) 356 U.S. 86 .... 6.1 eee ee eee e 149 Tuilaepa v. California (1994) 512 U.S. 967 0...eeeee 136 U.S. v. Cronic (1984) 466 U.S.648 ..............006. Cece eensoe. 49 United States v. Aguon (9th Cir. 1987) 813 F.2d 1413 20...eee 132 United States v. Cheely . (9th Cir. 1994) 36 F.3d 1439 ..........eee 104,105 XxiVv ~ TABLE OF AUTHORITIES CASES PAGE(s) United States v. Robinson (6th Cir. 1983) 707 F.2d 872 ©...eee,96 United States v. Scheffer (1998) 523 U.S. 303 ............eee eee ee eee 65, 66 United States v. Valenzuela-Bernal (1982) 458 U.S. 85820eee65 United States v. Wade (1967) 388 U.S. 218 20.eee-.. 101 United States v. Wallace (9th Cir. 1988) 848 F.2d 1464 .....eee 151 Uttecht v. Brown (2007) 127 S.Ct. 2218 0.0...eee 118 Vasquezv.Hillery (1986) 474 U.S. 25420eee135 Village of Willowbrook v. Olech (2000) 528 U.S. 562 1s68 Virgin Islandsv. Parrott (3rd Cir. 1977) 551 F.2d 553 2...ceeee 133 Wainwright v. Witt (1985) 469 U.S. 412.0000.en. 108, 112, 114, 118 Walters v. Maass (9th Cir. 1995) 45 F.3d1355 ..... eee beeen eens 98 Wardius v. Oregon (1973) 412 U.S.470 2.ceeeens 144 Washington v. Texas (1967) 388 U.S.14 2.0.eee63, 67, 70 XXV “TABLE OF AUTHORITIES CASES PAGE(s) Witherspoonv. Illinois (1968) 391 U.S. 510 2...eee112 Witherspoon, Witt, Gray, and Darden v. Wainwright (1986) 477 U.S. 168 2...ees118 Woodsonv. North Carolina (1976) 428 U.S. 280 .. 0.eee 99, 140, 143,144 Yick Wo v. Hopkins (1886) 118 U.S. 356 0.0eeeee es BB Zant v. Stephens (1983) 462 U.S. 862 .0 0.eee103, 143 State v. Bobo (Tenn. 1987) 727 S.W.2d 945 2.1.eee129 State v. McCormick | (Ind. 1979) 397 N.E.2d 276 0...eee 129 CONSTITUTIONS United State Constitution Fifth Amendment ..............0-0e eee eere passim Sixth Amendment ........0.0.0 0.000: cee ee eee passim Eighth Amendment ..........0.. 0000 cece eee eee eee passim Fourteenth Amendment .......02... 0.00: eee eee passim STATUTES Cal. Evid. Code § § BBeee 63, 76-78, 91, 93, 100 410ete61 210 2.eeeee 87, 90 350 22esLanes 87 ANZLe s52 520 ooeeeee 138 XXvi ~ TABLE OF AUTHORITIES CASES PAGE(s) 720 Lees56, 57 780 ......eee eee ees 44 800 .. 1. eee eee beens 56, 62 B02 2.eeeeens 58 1100 .........eee teens 91 1102 2.eee56, 60 1102 (A)...eee eee 61 1121e eee 91 1200(a) ........ e44 1324 ooeee eee 56, 61 Cal. Pen. Code §§ 182 cece ean 5 . 187 (A) 2.eens7 190.3...eee passim 245(a)(2)0ceeee 3 OL3 664 ........kee eee eae 1,3 995 Le s2,4 1158 (a) 2...eee 140 1192.70. ee 2 1239 2.eee1 12022 2...eee 2 12022.7 (a) 2...eeee 2 JURY INSTRUCTIONS CALJIC. Nos. B85ees 135, 139,147, 148 8.88 0.eee 137, 139, 143 OTHER AUTHORITIES Expert Psychological Testimony on the Unreliability of Eyewitness Identification (1977) 29 Stan.L.Rev. 969, 982 .... 0...eeees 101 Presumption of Life: A Starting Point for Due Process Analysis of Capital Sentencing (1984) 94 Yale L.J. B51 cece cece ve ceceeens 146 xxvii IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) No. S075725 Plaintiffand Respondent, ) Los Angeles Superior Court V. No. NA031990-01 KIONGOZI JONES, ) ) ) ) ) Defendant and Appellant. ) ) APPELLANT’S OPENING BRIEF STATEMENT OF APPEALABILITY This is an automatic appeal pursuant to Penal Code section 1239, subd. (b), from a conviction and judgment of death entered against Kiongozi Jones (“appellant”) in the Los Angeles County Superior Court on November23, 1998. (3CT 714-717.)' The appeal is taken from a judgmentthatfinally disposesofall issues between the parties. STATEMENT OF THE CASE A felony complaint wasfiled against Kiongozi Jones (hereinafter “appellant”) and Melvin Shermanin the Los Angeles Municipal Court on December 17, 1996, charging appellant and Shermanwith the murders of Mario Lopez and Jose Villa, in violation of Penal Code section 187, subd. (a), and the attempted murders of Veronica Mungia and Nery Hernandez.in violation of Penal Code sections 664 and 187, subd. (a). Enhancements for use of a ' “CT” refers to the Clerk’s Transcript; “RT” refers to the Reporter’s Transcript. firearm/handgun and for commission of a serious felony under Penal Code sections 12022, subd. (a) (1), 12022.7, subd. (a) and 1192.7, subd. (7) (c) (8) were alleged. (1CT Supp.IV 4.) Appellant waived arraignment on December 26, 1996, and entered a plea of not guilty. Bruce McGregor was appointed to be appellant’s defense counsel. (1CT Supp.I!V 9.) A preliminary hearing was held on January 9, 1997 (1CT Supp.IV 27), at the conclusion of which the court ordered dismissal of counts one and three of the complaint (the murder of Mario Lopez and attempted murder of Veronica Mungia) as to appellant, but held appellant to answer on counts two and four (the murderof Jose Villa and attempted murder of Nery Hernandez.) The court dismissedall counts as to Sherman. (1CT Supp.IV 23, 25, 180.) An Information was subsequently filed against appellant on January 23, 1997, in the Los Angeles Superior Court, charging him with the murders of Mario Lopez and Jose Villa and attempted murders of Veronica Mungia and Nery Hernandez, as well as the concomitant enhancements. (1CT Supp.IV 192-195.) Appellant was arraigned the same day and enteredguilty pleas as to all of the charges. The public defender was appointed to represent appellant. (1CT Supp.IV 196.) On February 13, 1997, the public defender wasrelieved and appellant appeared with retained counsel, Juliette Robinson Slayton. (1CT Supp.IV 197.) Appellant’s motion to set aside the information pursuant to Penal Code section 995, was heard on February 25, 1997. Counts one and three of the information (murder of Mario Lopez and attempted murder of Veronica Mungia) weresetaside, and the motion was denied as to counts two and four (murderof 2 Jose Villa and attempted murder of Nery Hernandez). Appellant filed another motion to dismiss on March 21, 1997, which wasgrantedin its entirety on March 24,1997. However, the same day the prosecution filed a new complaint charging appellant with two counts of murder under Penal Code section 187, subd. (a) (Mario Lopez and JoseVilla), one count of attempted murder under Penal Code sections 664 and 187, subd. (a) (Nery Hernandez), one count of assault with a firearm under Penal Code section 245, subd. (a) (2) (Veronica Mungia), and one count of shooting into an inhabited dwelling. under Penal Code section 246. (1CT Supp.IV 229; 3CT Supp.IV 364.) Appellant was arraigned on the new complaint on April 3, 1997, and the public defender was appointed to represent him. Appellant pleaded notguilty to all counts. (3CT Supp.IV 365-366.) A preliminary hearing was held on May 19 and 20, 1997 (1CT 1-180), at the conclusion of which appellant was held to answer on all counts. (1CT 180.) On June 3, 1997, an Information wasfiled in the Superior Court charging appellant with two counts of murder with a multiple murderspecial circumstance (Penal Code §§ 187(a) and 190.2(a)(3)); one count of attempted murder (Penal Code §§ 664 and 187(a)); one count of assault with a firearm (Penal Code § 245(a)(2); and one count of shooting at an inhabited dwelling (Penal Code § 246). (1CT 227-236.) Appellant, represented by the Public Defender, was arraigned and pleaded notguilty to all charges. (1CT 238.) On October 9, 1997, the Public Defender wasrelieved and replaced by pro bonoretained counsel, Juliette Robinson Slayton. (1CT 267; 1RT 198.) Appeliant’s motion to dismiss for insufficiency of the evidence 3 under Penal Code section 995 and motion to dismiss for speedytrial violation were denied on December2, 1997. (2CT 318.) On December5, 1997, the prosecution’s motion to consolidate appellant’s case with Melvin Sherman’s case was denied. (2CT 319.) Jury selection began on December8, 1997. (2CT 320.) Appellant's motion to dismiss for prosecutorial misconduct was denied on December 10, 1997. (2CT 322.) On December18, 1997, the trial court granted appellant’s Wheeler? motion and dismissed the venire. A new venire was summoned the same day and voir dire resumed on December 19, 1997. The jurors and four alternates were sworn on January 8, 1998. (2CT 337.) Theparties gave their opening statements, and the prosecutioncalledits first witness on January 12, 1998. (2CT 338- 339.) The prosecution rested and the defense began presentingits case on January 20, 1998. (2CT 344-345.) The defense rested, the jury wasinstructed and closing arguments were given on January 21,1998. (2CT 346.) The jury beganits deliberations at 3:35 p.m. that afternoon. (/bid.) On January 22, 1998, Juror No. 1 was excused uponstipulation of the parties and was replacedby thefirst alternate juror. The jury also requested a read-back of some testimony. (2CT 349-350.) At 4 p.m. on January 27, 1998, the jury informed the court that it was unable to reach a unanimousverdict. The court declared a mistrial and the jury was discharged. (2CT 374.) Appellant’s motion to dismiss after hung jury was denied on 2 People v. Wheeler (1978) 22 Cal.3d 258. 4 February 13, 1998.~(2CT 402.) The samedaythe prosecutionfiled its notification of potential penalty phase evidence under Penal Code section 190.3. (2CT 406.) Attorney Juliette Robinson was appointed by the court to represent appellant on March 17, 1998. (2CT 427.) The prosecution’s motion to consolidate appellant’s case with Melvin Sherman’s casefortrial was granted on March 24, 1998. (2CT 432.) The prosecutionfiled an Information on April 15, 1998, charging appellant with the samecrimes and special circumstance allegation as had been charged againsthim in the priortrial. Sherman was charged with the same offenses and special circumstance and also with conspiracy to commit murder under Penal Code section 182, subd. (a) (1). The prosecution sought the death penalty for appellant but not for Sherman. (2CT Supp.!V 355.) Jury selection began July 6, 1998 (2CT 449), and the jurors and alternates were sworn on July 13, 1998. (2CT 463-464.) The prosecutor and appellant’s counsel gave their opening statements on July 14, 1998, and the prosecution began presenting its evidence. (2CT 465-466.) The next day, July 15, 1998, the parties stipulated to excuse Alternate Juror No. 2. (2CT 468.) The prosecution rested its case on July 21, 1998, and the defense presented their respective witnesses. (2CT 477-478.) The defense rested on July 23, 1998, the jury was instructed and the parties began their closing arguments. (2CT 481-482.) Closing arguments were completed andthe jury beganits deliberations at 2 p.m on July 24, 1998. (20RT 5082-5085.) On July 31, 1998, at 2 p.m., the jury returned a verdict of guilty on all counts and a finding of true with respect to the multiple murder special circumstanceallegation, as well as the felony enhancements. (2CT 585-587; 20RT 5205-5209.) 5 The jury found Shermannot guilty of conspiracy to commit murder, and guilty on all the remaining counts. It also found true the multiple murder special circumstanceallegation as well as the felony enhancements. (Ibid.) The penalty phase commenced on August 4, 1998. The parties gave their opening statements and the prosecution beganits case in aggravation. (2CT 588-589.) The prosecution concludedits case on August5, 1998, and appellant began presenting his casein mitigation the same day. (2CT 597.) On August 6, 1998, the court granted the prosecution’s motion to excuse Juror No. 2, who was replaced by Alternate Juror No. 1. (2CT 599.) On August 7, 1998, both sides rested their case, the jury was instructed and the jury beganits deliberations at 2:00 p.m. (2CT 600.) At 3 p.m. Juror No, 3 was excused bystipulation of the parties and was replaced by Alternate Juror No. 3. The court instructed the jury to begin its deliberations anew. (/bid.) The jury returned a verdict of death on August 13, 1998, at 11:35a.m. (3CT 652-653.) On November17, 1998, the trial court denied appellant's motion for new trial and modification of sentence, and sentenced appellant to death on counts one and two and to prison terms on the remaining counts. (3CT 701-705.) REKKE ~ STATEMENT OF FACTS A. Introduction | This casearises from the murderof two men, Mario Lopez and AngelVilla, who were shot to death within minutes of each otherin Long Beach,on the evening of December6, 1996, around 7 p.m. Two other people, Veronica Mungia and Nery Hernandez, were also shot, but survived. At least one of the murdervictims, Mario Lopez, was a memberof an Hispanic gang, known as the East Side Longos (hereinafter “Longos”). Veronica Mungia was Lopez's sister. Lopez wasshot while socializing with a fellow gang memberin front of his apartment. Mungia, who wasinside the apartmentat the time, was struck in the knee by a bullet that came through the open front door. AngelVilla was riding his bike around the corner from the apartment complex a few minutes after the Lopez/Mungia shooting, when he wasshot through the eye at close range. Nery Hernandez wasshot in the chest secondslater, as he waspulling his car out of a driveway a few feet from where AngelVilla was shot. According to the prosecution’s ballistics expert, the same gun was usedto shoot all four victims, but a gun was never found. _ Twotrials were held in this case, in each of which the only disputed issue was the identity of the shooter and his alleged accomplice. The prosecution’s theory wasthat the shootings of Lopez, Mungia and Villa were related to gang warfare between the Longos andthe Rolling 20s Crips (hereinafter “Rolling 20s”), an African-American gang with which both appellant Kiongozi Jones and his co-defendant, Melvin Sherman,had in the past been affiliated, and that Hernandez was an innocent bystander who happened to be in the wrong place at the wrongtime. 7 Thefirst trial,in which appellant was the sole defendant, resulted in a mistrial because the jury could not reach a unanimous verdict regarding guilt. The second trial, in which Melvin Sherman was joined as a co-defendant, resulted in appellant's conviction and death sentence.* No physical evidence tied appellant to the crime; the prosecution’s evidence consisted of case eyewitness identification testimony. No oneidentified appellant as the man whoshot Lopez and Mungia, although Anna Granillo, a sister of Lopez and Mungia, testified that she saw appellant and Sherman shortly before the shooting occurred, as she was walking back to her apartment from the laundry room. Granillo’s testimony conflicted with her statement to the police on the night of the crime that she had beenin the bedroom of the apartment and had not seen anything. Granillo came forward with her changed story a yearlater on the first day of thefirst trial, one day after the prosecutor told Mungia that his case against appellant was weakand that appellant would likely be acquitted unless someone who waspresent at the time she and Lopez were shot identified appellant as the shooter. Mungia was unable to persuade the men who had been socializing with Lopez outside the apartmentat the time of the shooting to come forward. However, she contacted the prosecutor the next day and told him that Granillo was willing to help. Appellant wasrestricted, in both trials, from cross-examining Granillo and Mungia about whether Granillo had been informed by Mungia that 3 As noted in the Statement of the Case, the prosecution did not seek the death penalty for Sherman. 8 the prosecutor wastoncerned abouthaving insufficient evidence to prove appellant's guilt, despite the relevance such knowledge would have to establish Granillo’s motive to falsely identify appellantin order to secure his conviction. There were two eyewitnessesto the shooting of Villa and Hernandez: Maria Jaramillo, a woman wholived acrossthe street from where the shooting took place, and Hernandez himself.* The charges against appellant wereinitially dismissed subsequentto a preliminary hearing conducted a monthafter the crime, in which Jaramillo identified Melvin Sherman instead of appellant as the shooter, and Hernandeztestified that he could not be sure that appellant was the shooter. However, the charges wererefiled and appellant was bound overfollowing a new preliminary hearing, conducted pursuant to Proposition 115, in which homicide detectives testified that Jaramillo and Hernandez had identified appellant as the shooter from a “six-pack” photographic lineup (hereinafter “six- pack”).° By the time ofthefirst trial, any doubt that Jaramillo and Hernandez had previously expressed regarding the certainty of their “ Hernandez’s wife, Rosa, was in the car with him at the time of the shooting. Shetestified in thefirst trial that it was dark outside and everything happenedso quickly she could not identify the shooter. (8RT 2070-2072.) Rosa Hernandez wasnotcalled as a witness in the secondtrial. ° According to the detective, when shownthesix-pack, Hernandez pointed to photo no. 5 and said “that kind of lookslike him.” (1CT 36.) Jaramillo told the detective that the shooter looked like the man depicted in photo no.5, “but without the hair on his chin.” (1CT 37.) respective identifications of appellant had been erased, and each testified that he/she was sure that appellant was the shooter. By the time of the retrial (which commenced more than two and a half years afterthe crime), the eyewitnesses had become even more certain of their respective identifications of appellant. They also “remembered” things that they had not previously testified to that bolstered these identifications. Appellant was again restricted from cross-examining Anna Granillo — the only prosecution witness who actually placed him near the scene of the Lopez shooting — about circumstances demonstrating her motivetolie. To shore upits case in the secondtrial, the prosecution presented additional “gang expert” testimony.® It also introduced for the first time, over defense objection, a tape recording of a phone conversation between appellant and his brother, which took place shortly after thefirst preliminary hearing held in the case. Appellant, who during the phonecall expressed angerandfrustration that he wasstill being held even though the witnesses did not identify him, claimed innocence but also madeinflammatory statements that the prosecutor argued demonstrated consciousnessofguilt. Appellant had the sameattorneyin both trials. She represented him pro bonointhefirst trial, having never previously tried a homicide case, and under court appointment in the second § Thetrial court excluded evidence that would have established appellant was no longer an active gang memberandthat he wasin the process of being hired as a counselorin a gang prevention program at the time ofhis arrest in the instant case. (See ArgumentII, post.) | 10 trial, despite the fact that she was not a memberof the panelof attorneys in Los Angeles qualified to handle death penalty cases. She did not seek appointmentof qualified second counsel, andtried the case on her own.At the conclusion of the secondtrial, appellant’s attorneyfiled a motion for new trial, alleging her own ineffective assistancefor failure to hire an eyewitness identification expert. B. The Lopez/Mungia Shooting 1. Eyewitness Testimony The prosecution presented the testimony of three witnesses whowerein the apartment at the time of the shooting, Veronica Mungia, Amber Gutierrez, and Anna Granillo. None of them of them actually witnessed the shootingitself. (a) Veronica Mungia Mungia was Mario Lopez’s sister. On December6, 1996, she wasliving at 1700 Pacific, Apartment No. 4 in Long Beach. Shelived there with Mario, her sister Anna Granillo and two other brothers, Arthur and Robert. Anna’s three year old daughter also lived there. (7RT 1834.) In thefirst trial Mungia testified that Mario was a memberof the East Side Longosstreet gang. (7RT 1837.) In the secondtrial she testified that all of her brothers, except for Mario, were membersof the gang. Mungia’s testified in the first trial that she heard gunshots shortly before 7 p.m. (7RT 2835, 1842.) She testified in the second trial that the shots were fired around 8 p.m. (14RT 3692), and it was dark outside. (14RT 3713.) At the time of the shooting, there were a numberof people inside and outside of the apartment. (14RT 3691.) — The group included Mungia, Lopez, Granillo, and otherindividuals, 11 whose names were“Casper,” “Joker,” “Tricky,” Sunshine,” “Sleepy,” Amber[Gutierrez], two of Amber's friends and AnnaGranillo. Mungia’s young daughter and Amber’s daughter wereplaying in the livingroom. (/bid.) Mungia wasin the bedroom atthe rear of the apartment whenthe shooting began. In thefirst trial, Mungia testified that Anna Granillo was in the bedroom in the process of hanging up clothes when the shooting began. (7RT 1851.) In the secondtrial she testified that Anna had just walked into the bedroom with a laundry basket, which she dropped onthe floor when the shooting started. (14RT 3698, 3713.) Mungia furthertestified that Anna had been going back and forth to the laundry room all day. (14RT 3717.) Mungia attributed her changed testimonyin the secondtrial to a recent “flashback,” and admitted that she discussed her new “recollection” with the prosecutor before testifying in the currenttrial. (14RT 3730.) When the shooting began, Mungia ran for her daughterin the living room. Mario had already been shot, and pushed Veronica’s daughter towards heras he ran inside the apartment. In the process, a bullet came through the wail and hit Veronica in the knee. (14RT 3698.) Mario collapsedin the hallway. (14RT 3699.) Mungia did not see whofired the shots. (14 RT 3707-3708.) (b) Amber Gutierrez Amber Gutierrez was a visitor who wassitting on the couch talking on the phoneatthe time of the shooting. (14RT 3631.) She testified that she had a clear view of the front door of the apartment from where she wassitting, and that the door was wide open. (14RT 3631-3632.) Gutierrez testified that she saw a man walk by the door slowly, look inside the apartment, and then continue walking towards 12 the alley behind the-apartment complex. After he passed, she heard him say something to somebodyin the direction of the alley, although she did not hear what he said because she was on the phone and not paying close attention. (14RT 3633-3644.) The man was African American and was wearing a white tank top. (14RT 3646, 3650.) Gutierrez identified Melvin Sherman as the man she saw. (14RT 3839.) According to Gutierrez, Mario and Casper walked outside and weresitting in front of the apartment, talking, when the shooting occurred. (14RT 3647.) However, she contradicted herself regarding how long they were outside before she heard gunshots. She testified first that the shooting started immediately after the two went outside. (14RT 3635.) Later in her testimony, she stated that she did not know how long they were outside before the shooting started. (14RT 3647.) She testified subsequently that the shooting occurred within seconds of when the two stepped outside. (14RT 3664.) In thefirst trial she testified that she was not sure whetherit was secondsor minutes; that she did not know howlong it was. (14RT 3671-3672; 7RT 1961.) . Gutierrez was also vague regarding the length of time between when the man walked by the front door and whenthe shooting began, stating that she could not recall how muchtime elapsed betweenhearing the mantalking to the personin the direction of the alley and the commencementof the gunshots (14RT 3655), although she hadtestified at the preliminary hearing that it was less than five minutes. (14RT 3656.) She was also unsure where Mario was when the man walked by the open door — at some point he had beenin the - living room, but she was not sure where. However, shetestified that 13 the man walked by before Mario went outside. (14RT 3666.) Although Gutierrez testified she never saw the shooter (14RT 3637), in the secondtrial — for the first time — shetestified that she saw a gloved hand with a guninit. (44RT 3657.) Furthermore, while she had testified in the preliminary hearing that she could not discern the direction from which the shots were coming (14RT 3654), she testified in the secondtrial that they were coming from the direction of the alley. (14RT 3651.) Also for thefirst time in the secondtrial, Gutierrez testified that Anna Granillo entered the apartment and walked past Gutierrez in the living room, and that the shooting started right after Granillo had walked through. (14RT 3635-3636.) Gutierrez had previously testified that she did not recall having seen Granillo in the living room prior to the shooting. (14RT 3663.) In addition, while Gutierrez testified previously that she had never seen appellant before, during the secondtrial she claimed that she had seen him before on Pine Street, and that he had yelled “gang stuff,” at Gutierrez and her friends. (14RT 3640, 3660, 3662.) In any event, Gutierrez did not see appellant on December6, 1996. (14RT 3661.) (c) Anna Granillo Whenshewasinterviewed bythe police on the night of the crime, Anna Granillo told them she wasin the bedroom at the timeof the shooting and therefore saw nothing. (15RT 3770.) On the witness stand Granillo told a different story. She testified she had been doing laundry, going back and forth from her apartmentto the laundry room along the apartment complex walkway (14RT 3740- 3741), and saw appellant and Shermanin the alleyway behind the apartment complex on anearlier trip to the laundry looking at her 14 apartmentbuilding as if they if they were scoping it out. (14RT 3754.) Granillo furthertestified that on herlast trip back to the apartment from the laundry room, she saw appellant and Sherman againin the alley by the back gate to the complex. (14RT 3752, 3755.) She stated that she saw them outof the cornerof her eye, walking close behind her. (14RT 3757.) Howeverlater on in her testimony, Granillo denied having seen the two men comeupthe walkwayand start shooting or having seen either of them with a gun. (15RT 3845.) Granillo testified for the first time in the secondtrial, that she told her brother Mario to “watch out” as she walked by him into the apartment. She further testified she was in the middle of the livingroom whenthefirst shots were fired, and that she ran to the bedroom and dropped her laundry basket. (14RT 3757, 15RT 3765.) When hersister Veronica ran out of the bedroom to get her daughter, Granillo testified she started to follow her, but Gregory Sinsun (a.k.a. “Sleepy), who wasin the bedroom atthe time, pulled her back. When the shooting stopped, Mario came running into the apartment saying “those fucking niggers shot me.” (15RT 3768.). Granillo had made no mention of this during her testimony in the previoustrial. (15RT 3823.) At the time of Granillo’s initial sighting of the two men it was close to dark, and by the secondtimeit was fully dark. (15RT 3814.) She stated that the only light in the alleyway was attached to a building to the other side of the alley, and that it was dim. (15RT 3814-3815.) She estimated that the two men were about 38 feet, or approximately three car lengths, away from her when she saw them. 15 _(15RT 3816.) Granillo concededthat she did not get a very good look at the men’s faces because they were a ways away from her and she could not see them very well. What she saw wasthat they were both bald. (15RT 3805.)’ Granillo’s explanation of why she had waited a year to come forward also changedby the secondtrial. In the previoustrial she claimed she wasso greatly affected by the loss of her brotherthat she started drinking heavily and lost her memory. (7RT 1926-1927; 15RT 37.) She testified then that her family began calling her a “wina” because she drank daily. (7RT 1926.) It was only after her sister Veronica told her that the case was going to trial and she needed to tell the “truth,” that she decided to come forward and testify. (7RT 1932.) When asked why she hadliedto the police in the first instance, Granillo cited hostility towards the police and fear of retaliation as her reasons. (15RT 3769-3776.) By the time of the secondtrial, Granillo denied having had amnesia as a result of her drinking. instead, she attributed herfailure to come forward for a whole year to simply not wanting to think about this “horrible tragedy.” (15RT 3824-3826.) Granillo additionally denied that she drank heavily during the months following the murder, and claimed that her family’s calling her a :’wina” was not because she had becomeanalcoholic, but was just something her family memberscalled each other as a joke. (15RT 3841-3843.) 2. . The Forensic Evidence (a) Dale Higashi ” Granillo testified that she also saw other peoplein thealley, including AngelVilla and his family, a couple of other Hipanics and a neighbor named Henry. (15RT 3828-3829.) 16 Dale Higashi;’a criminalist with the L.A. County Sheriff's Department, testified that from the eight expended shell casings, the three intact bullets and several bullet fragments retrieved from the two crime scenes, he determined that a semi-automatic hand gun which could have been a Glockpistol, was used to commit both crimes. He could not say for sure that only one gun was used to commit both crimes, because he didn’t have the gunitself, but from his microscopic examination of each of the shell casings he was of the opinion thatall of the bullets were fired from the same gun. (15RT 3911-3918.) (b) Suko Jack Wang, M.D. Dr. Wang, a deputy medical examiner with the L.A. County Coroner's office performed the autopsy on Mario Lopez. Hetestified that Lopez sustained two gunshot wounds,onetothe left forearm and the other to the chest. The chest woundwasfatal; the bullet went _ through the chest and lodged in the heart. Because he saw nosoot or stippling, Dr. Wang concluded that the gun used had not been shot from close range. (16RT 4151-4156.) C. The Villa/Hernandez Shooting 1. Eyewitness Testimony The prosecution presented the testimony of two eyewitnesses to the shooting of Jose Villa and Nery Hernandez, Maria Jaramillo, wholived acrossthe street from where the shooting took place, and Nery Hernandez,the surviving victim. In thefirst trial, the defense presented the testimony of Robert Elder, a friend and neighborof Nery Hernandez’s, wholived on the block where the shooting occurred. Elder was unavailable at the time of the secondtrial, so his testimony from thefirst trial was read to the jury. (19RT 4781.) 17 (a) Maria Jaramillo On December6, 1996, shortly before 7 p.m., Maria Jaramillo wasplaying with her nephewsin front of her house at 126 W. 16" Street in Long Beach. She heard gunshotsin the distance coming from the direction of Pacific Avenue, so she took her nephewsinside, and came backoutside. She sawa man running towards her from the alley across the street. (16RT 4087-4089.) At the sametime, a man on a bicycle rode by, and the man coming out ofthealley grabbed him around the neck and shot him in the head,on the right side at eye level. (16RT 4090, 4092.) The shooter then walked away in the direction of Pine, towards a car backing out of a driveway with a man and womaninside, at which point Jaramillo went back inside her house. (16RT 4093, 4095, 4096-4097.) She heard more shots, and when she came backoutside one of the shooting victims was dead and the other one — the driver of the car — was wounded. (16RT 4095.) Three days after Jaramillo witnessed the shooting, the police showedhera six-pack photo lineup, and she signed a form stating, “It looks like [the person depicted in photo numberfive], without the hair on his chin.” (46RT 4103-4104.) Whenshetestified a monthlaterat the preliminary hearing, she statedthat if appellant had hair on his face the day the shooting occurred, then he would not be the man she saw. (16RT 4105.) Shefurthertestified at the preliminary hearing that she picked numberfive from the photo lineup, because the man depicted in that photo had more of the height and the profile of the shooter (16RT 4111), however, she conceded she wasnot very sure that numberfive was the shooter, because she saw him from far away andit happened very quickly. (16RT 4107-4108.) Jaramillo 18 also testified at the preliminary hearing that she only saw the shooter's profile, and acknowledged that photo numberfive wasa full frontal view, not a profile view. (16RT 4112-4113.) When asked at the preliminary hearing whether she could makean in-court identification, Jaramillo identified Sherman — not appellant — as the shooter. (16RT 4101.) Jaramillo’s preliminary hearing testimony wassignificantly different from her testimony in the secondtrial. In the secondtrial, she identified appellant as the shooter, andtestified that she recognized his photo whenit was shownto her a few daysafter the crime as part of the photo-lineup. (16RT 4097-4098.) With respectto her previous testimony that if appellant had facial hair he could not have been the shooter, Jaramillo testified she did not see facial hair, but that it did not mean the shooter did not have any. (16RT 4105.) Jaramillo acknowledged her misidentification of Sherman at the preliminary hearing, but claimed that she immediately tried to correct herself and was not given the opportunity to do so. Shealso claimed to have been very nervousand frightened whenshetestified at the preliminary hearing. (16RT 4100-4101.) Jaramillo testified that she was nowable to distinguish between appellant and Sherman, and that she was now certain that appellant was the shooter. (16RT 4102.) Jaramillo did not explain what now madehercertain of these things. Jaramillo further testified that she hada frontal view of the shooter’s face as he cameoutof the alley, and denied that she had only seenhis profile. (16RT 4112.) She did concedethatit was dark out and there was nolighting at the mouth of the alley. She also acknowledged that the events she observedlasted only a few 19 seconds,and that she wasterrified. In addition, she was looking at the flash whenthe gun wasfired, not at the shooter. (16RT 4121- 4122.) | In thesecond trial, Jaramillo testified for the first time that a few days after the crime, she was approachedin front of her house by a young black man whoasked her whether she had witnessed the shootings. Jaramillo testified that she told the man she had not been there, because she was scared. (16RT 4099-5100.) She acknowledgedthat the district attorney’s office had paid for her to moveto another location. (16RT 4126.) (b) Néry Hernandez Nery Hernandez wasbacking out of his driveway with his wife and children in the car, shortly before 7 p.m. on December6, 1996. As he got out of his car to close the gate, he saw two men, one Hispanic and one Black, about 10 to 15 feet away lookinglike they were arguing. The Hispanic man wason a bicycle. Hernandez got back in his car, and saw the Black manpointing his right hand towards the Hispanic man’s head, and sawthat the Black man was holding a gun. Hernandeztried to back his car out, but could not do so because there wasa car passing behind him. Hernandez then heard two gunshots. (RT 4243-4246.) Next, the Black man wasstanding directly in front of Hernandez’s car, pointing his gun at Hernandez. The man shot Hernandezin the chest, after which the man ran towards Pine Avenue. Hernandez gotout of his truck and started shouting for help. (RT 4247-4248.) Hernandezidentified appellant before the jury as the man whoshot him. (16RT 4249.) Hernandez’strial testimony was inconsistent with his statement 20 to the police and his testimony at the preliminary hearing, and he was impeached on cross-examination with that prior testimony, which established the following: Hernandez was hurt badly and wasin the hospital, heavily medicated, when the police cameto interview him and showedhim a photo lineup. He told the detectives that photo number5 “kinda lookedlike him,” because he was not 100 percent sure. Hernandez also admitted he remained unsure that appellant was the shooter, because it was dark when the shooting occurred, the events occurred very rapidly and he did not get a goodlookat the shooter's face. (16RT 4254-4259.) Hernandez’s headlights were off as he wasbacking outof his driveway. (16RT 4252-4253, 4274.) Whenhetestified at trial, however, Hernandez insisted that he had seen the shooter's face and that he was able to recognize appellant’s face as the face of the man whostoodin front of his car and shot him. (16RT 4253, 4262, 4266.) He attempted to explain the discrepancy betweenhis preliminary hearing testimony andtrial testimony by stating that he had been frightenedofretaliation at the preliminary hearing and that he also was confused when he was on the witness stand. (16RT 4263, 4265, 4270-4271, 4273, 4284.) However, Hernandez admitted that he had spoken repeatedly with the investigating detective since the preliminary hearing. (16RT 4272.) He also acknowledgedthat the District Attorney's Office was helping him to pay his hospitalbills. (16RT 4282.) _(c) Robert Elder As noted above, Robert Eldertestified as a defense witnessin the first trial. He was unavailable in the secondtrial, so his testimony from thefirst trial was read to the jury. (19RT 4781.) Elder, an executive chef for Amtrak, lived on the cornerof Pine 21 and Pacific, and was a neighbor of Nery Hernandez. (8RT 2323.) He testified that around 7 p.m. on December6, 1996, he wasupstairs in his bedroom. He heard three shots and looked out of the window over the hedges and could see a man walking towardshis car, shooting westward down the street towards Long Beach Bivd. The manthen got into a small Nissan and droveoff. (8RT 2325-2326.) Elder could not see the shooter’s skin color; all he could see wasthat the man was a muscular man with a large Afro hairstyle, and that he was wearing a large Navy peacoat. He also saw the man’s gun, which he described as a gun with a long barrel that looked like one used by Clint Eastwoodin the “Dirty Harry” movies. (8RT 2326.) The shooter was not wearing a hat. He had a stocky build and big shoulders, and looked like he might weigh about 300 pounds. Elder watched the man shoot and proceed down 16" towards Pine. The man gotinto the back seat of the car, which as about 15 feet from Pine. Elder could see two other people in the car. (8RT 2327.) Elder’s son was outside, so as soon as he sawthe shooter get into car and the car drove off, he went outside looking for his son. Whenhegot outside, he saw his friend and neighbor, Nery Hernandez, had gotten out of his truck and was walking towards him Nery said, “they shot me.” At the same time Elder looked up the street and saw another man had been shot and wastrying to get up. As he got up he collapsed. Elder then went back into his house and called 911. He gave a statementto the police that night, but no police ever came backto interview him after that. (8RT 2330.) On cross-examination, Elder denied having told the police that that the shooter was a dark-skinned male; he recalled being asked aboutthis and told the police that he could not discern the man's 22 complexion. (9RT 2341.) Elder saw the manfire at least two shots pointing backwards towards Pacific as he walked by. He could only see the man’s back. The carthe shootergot into wassitting on 16" Street facing west towards Pacific. The vehicle drove off towards Pacific. (QRT 2343.) When Elder came downstairs after watching the car drive off, Nery Hernandez wasthefirst thing he saw as he came downthe steps. Hernandez collapsed in Elder’s son’s arms and said he’d been shot. (ORT 2344.) Elder next saw a man onthe groundwith his bike about 10 yards away. Heidentified the man as AngelVilla. Villa tried to stand up andpick up his bike, but he collapsed ontopofit. As Elder began to walk towards him, Villa grabbed his head — ortried to — and then collapsed. That is when Elder went for the phone. (9RT 2345.) On redirect examination, Eldertestified that the area in which the Villa and Hernandez shootings occurred was not well lit. He explained that the street lamps did not have bright, white lights, but instead haveyellow lights. Elder had no doubtin his mind that he heard three shots, that he looked out the window and observed the man shoot twice and get into a car. Elder was shownthe photo six- pack that included a picture of Jones, and Elder denied having seen Jones or any one else depicted in the photos that night. (QRT 2349- 2350.) 2. _ The Forensic Evidence (a) ThomasGill ThomasGill was the forensic pathologist who performed the autopsy on AngelVilla. Gill testified that Villa died of a single gunshot woundto his right eye. Based onstippling and soot deposits, Gill 23 determined that Villa was shot from a distanceofsix inches, andthat he died instantly. (15RT 3927-3933.) D. Appellant’s Whereabouts On the Night of the Crimes 1. OfficersKohagura and Anderson Patrol officers Ernie Kohagura and Peter Anderson, both testified that they received a call of a shooting at 1700 Pacific Avenue, on December6, 1996 at 6:54 p.m. They weretold that two - black, male suspects had been seen running eastbound through apartment buildings towards Pine. Based onthis information they proceeded directly to an apartment building at 1708 Pine, which they knew to be a Crips hangout. (15RT 4020-4023; 16RT 4297-4300.) (a) Officer Peter Anderson _ Andersontestified that when they entered the courtyard of the apartmentbuilding they saw appellant standing outside Apartment Four, and that when appellant saw them he turned andraninside the apartment and closed the door. This raised the officers’ suspicion so they knocked on the door. (15RT 4023-4025.) A minute to two minutes later, a black woman opened the door. Appellant was. standing next to her. Anderson and Kohaguraexplained that there had been a shooting a block away and they wanted to speak to appellant. Anderson talked to Sherman and Kohagura talked to appellant. They respectively filled out Field Identification cards on Sherman and appellant. (15RT 4025.)° The officers then conducted a “protective sweep”of the apartment and saw no gunsin plain view. § Detective William Collette, who was in charge of the homicide investigationin the instant case,testified that he had not seen these Field Identification cards and did not know whether they had been destroyed. (8RT 2265.) 24 Theyleft without making any arrests. (15RT 4026-4027.) Anderson was impeached with the police report prepared by Kohagura. (15RT 4029-4032.) The report stated that appellant, who was wearing a dark jacket with a hood and a dark beanie and cap, wasstanding inside the doorway of the apartment and that he turned and shut the door when he saw them. (15RT 4031-4032.) The report did not say that appellant looked “startled” and “ran into” the apartment whenhe saw the officers. (15RT 4032.) Anderson concededthat “suspicion aroused by looking startled” would have been the type of significant fact typically included in a police report. (15 RT 4033.) . The police report also did not say that appellant “ran”into the apartment and “slammed”the doorreally hard; it stated only that appellant immediately closed the door. (15RT 4035.) The report also stated that appellant himself opened the door after they knocked onit. (15RT 4034.) Anderson’s testimony was that a black woman opened the door and appellant was standing next to her. (15RT 4035.) Andersonfurthertestified that he was focused on appellant because he felt that appellant was a threat, based onthe information he and his partner had received that two black males were possible suspects in the shooting. However, no statement was madein the report that the officers felt appellant was “a threat.” (15RT 4035-4036.) When filling out a Field Identification card, police officers include significant information, such as anything unusualthat they notice aboutthat individual’s behavior. (15RT 4037-4038.) Andersontestified that there were three males in the apartmentbut one of them, Leslie Rainey, appeared to be older than the other two, and appellant and Shermanfit the general description of the two suspects seen running 25 towards Pine. (16RT 4070-4073.) (b) Officer Ernie Kohagura Officer Ernie Kohaguratestified that he observed appellant standing aboutfive tosix feetin front of an apartment door; that he made eye contact with appellant and appellant appearedstartled and ran inside the apartment and closed the door. (17RT 4301-4302.) Kohagurafurther testified that he and Anderson knockedon the door and a minute later a woman openedthe doorwith appellant beside her. (17RT 4303.) In addition to appellant and Sherman there was another black male, four black females and a child. (17RT 4304.) Kohagrafilled out a Field Identification card on appellant, which he gave to Detective Conant, who was with the gang detail. He also wrote a report that same evening. (17RT 4308, 4314.) Kohagura claimed that his report inaccurately stated that appellant was standing in the doorway — he should havestated that appellant was standing by the doorway. Healso testified that the report and his prior testimony were inaccurate in stating that appellant (instead of a black female) opened the door whenthe officers knocked on it. (17RT 4309-4314.) Kohaguratestified that he asked appellant whether he had seen someone running through the courtyard of the apartment building. Kohagura concededthat appellant himself was neither out of breath nor sweating, and that Kohagura saw no blood onhis clothes. Kohagura further acknowledged that had he observedanyof the latter he would have notedit on the Field Identification card. Kohagura explained that they did not do a Field Identification card for the third black male in the apartment, because that man wasolder than appellant and Sherman, and Kohagura wasnotinterestedin 26 people over 25 years old, because they were notaslikely tofit the gang profile. However, Kohagura’s reported listed appellant's date of birth as February 22, 1969, which would have made him 27at the time of the crimes. (17RT 4314-4318.) 2. Leslie Rainey Leslie Rainey was 27 years old at the time of trial and had known appellant for about 10 years. Hetestified that on December6, 1996, he wasvisiting with friends, including appellant, Sherman and four womenat 1708 Pine, Apartment four. He knew only oneof the women by name - “Carlissa.” (15RT 3961-3963.) After 6 p.m., they were watching television and listening to the radio. Before 7 p.m., appellant stepped outside the apartment and said he would be standing right there, and they should let him know whenit was time to watch “Martin.” (15RT 3963.) Although appellant and Sherman wereboth inside the apartment when Anderson and Kohagura knocked on the door, they were not together. Sherman wasat the kitchen table and appellant stepped outside the door for a few minutes. (15RT 3965.) Because the apartment door was partially open, Rainey could see appellant moving around. (15RT 3967-3968.) Rainey peeked out andtold appellant that “Martin” would be coming on after a commercial, and appellant told him he would be coming right in.” (15RT 3965.) When appellant reentered the apartment he was neither sweaty norout of breath. He also did not changehis clothes or his appearance in any way. (15RT 3969.) While they were watching “Martin,” a breaking newsbulletin came on about the shooting, and showed helicopters shining lights down on Pine. (15RT 3987.) Raineytestified that when appellant came backinto the 27 apartment he did not seem hurried. Appellant walked backin, closed the door and lockedit. He then moved closerto the television, and about twenty secondslater the police knocked on the door. Appellant said nothing about the police being outside the door. He did not seem nervousor upset. Whenthe officers knocked on the door, appellant answeredit. (15RT 3985-3986.) _ According to Rainey, when Kohagura entered the apartmenthe said, “Kio, Swoop, why did you do that man?” Kio laughed and asked Kohagura whathe wastalking about. Kohagura said something happenedoutside, and then said “No,I’m just playing.” (15RT 3987- 3988.) Rainey was arrested and interrogated by Detectives Conant and Thrash on December 13, 1996. He wasin the interrogation room for approximately 12 hours; during that time the detectives ran back and forth between the room where Rainey wassitting and another room where they had appellant. They would tell Rainey something appellant allegedly said and then go back to appellant andtell him something Rainey allegedly said. They never told Rainey what was going on. (15RT 4003.) During his interrogation one of the detectives said to Rainey, “you know your homeboykilled three people.” Raineytestified that he replied that appellant had not killed anyone, that he wasatthe apartment when the shootings occurred and did not do anything to anybody. The detective then accused Raineyoflying to protect appellant and started harassing Rainey, including calling Rainey's mother a liar, but Rainey did notrise to the bait. (15RT 3995.) Rainey denied that he told the detectives appellant and Shermanleft the apartment together and were gone aboutfive 28 minutes. He also denied having told the detectives that upon returning to the apartment, appellant and Shermanstated “Man, something happened outside. There's a lot of cops out there!” (15RT 3964.) Rainey further denied telling the detectives that appellant had been beaten up by a Mexican the previous week; hetestified that one of the detectives told him that appellant claimed to have told Rainey abouta fight with some Mexicans. In reality, the only conversation Rainey had with appellant was about Rainey going with appellant to sell his car because appellant had no license and could notdrive. (15RT 3969-3970.) E. Gang-related Evidence The prosecution presented two forms of gang-related evidence. First, it presented two witnesses,both police officers to whom appellantallegedly claimed membershipin the Rolling 20's gang,in order to establish that appellant wasstill an active gang member. Second, it called a Long Beach policeofficer as a witness to provide “expert” testimony regarding gang behavior, as there was no physical evidence tying appellant to the crimes or any evidence establishing that appellant knew or was knownbyanyof the victims. 1. Detective Steven Lasiter Detective Lasiter testified that he had contact with appellantin May, 1990, and appellant told Lasiter that he belonged to the Rolling 20's gang and wentby the name “Chicken Swoop.” (15RT 3939- 3940.) 2. Officer Michael Schaich Officer Schaich testified in May, 1990, he had contact with appellant, who said he was an R20's Crip and that his name was “Key 29 Loc.” Schaich wasimpeached with a May 2, 1990 notation on a computerprintout from the G.R.E.A.T. database, a system that tracks gang members,’ stating that appellant said he did not gang bang anymore. Schaich, when confronted with this evidence, said he was not aware of the entry and did not know wherethe information came from. (17RT 4289-4294.) 3. Officer Freeman Potter Officer Potter, a member of the Long Beachpolice department, testified as a “gang expert.” Hetestified that the Rolling 20's were one of the two largest black gangs in Long Beach,and that the Longos werethe largest Hispanic gangin that area. (17RT 4371.) Potter explained that a particular gang will “claim turf;” that is, its memberswill claim a particular area where they live and hang out as their gang’s territory and markit with graffiti on buildings, walls, utility poles, vehicles, sidewalks, etc., in order to communicate to other gangsthatthis is their turf. (17RT 4371-4373.) Accordingly, graffiti on the building where the first shooting took place marked the area as Longoturf, and reflected that gang’s hostility towards the nearby black and Samoan gangs. (17RT 4374-4375.) The graffiti was intendedto intimidate the rival gangs. (17RT 4376.) Asked to expound on the subject of intimidation, Potter testified that witnesses to gang violencetypically do not wantto get involved becauseof fear and intimidation. Potter stated that he had also had witnesses whoinitially gave statements and then subsequently refused to testify or would not show upin court sometimes because of °“G.R.E.A.T.” is an acronym for “Gang Recognition Evaluation and Tracking.” (17RT 4424.) 30 actual threats, but also simply out of concern for the fact that gang members would be presentin court during their testimony. (17RT 4377-4380.) . Speaking in general terms, Potter explained that gang violence enhances a gang member’s reputation and clout within his gang. Speaking “hypothetically,” Potter opined that a black memberof the | Rolling 20s Crips who was “beaten down”by an Hispanic gang memberwould be required to retaliate with violence to avoid looking weakto his fellow gang members." Also,killing a witness would give a gang membera “prestigious sort of status” within the gang. Walking up to a rival gang member’s residence and shooting him showsthat a gang memberis “crazy,” meaning “pretty heavy duty hardcore,” and this carries a lot of clout with the other gang members.” (17RT 4394-4397.) In an attempt to explain why the murder weapon was never found and why appellant was not wearing blood stained clothing when Officers Anderson and Kohagura came upon him within minutes of the shootings, Potter testified that it is common for gang members to either change clothing or wearlayers of clothing and discard them, andalso to disposeof their guns after a shooting, in orderto get rid of incriminating evidence. (17RT 4397.) Potter further testified that it is very undesirable to be a “snitch,” i.e., someone whotalks about gang activities to outsiders, such as ‘0 There was no evidenceestablishing that appellant had been “beaten down” by any Hispanic gang members,other than the testimony of Detective Victor Thrash that Leslie Rainey reported that appellant told Rainey he had recently been beaten up by a Mexican. (16RT 4176.) As noted above, Rainey denied having made any such statement. (15RT 3969-3970.) 31 police officers. He stated that most gang membersare involved in acts of violence and plan criminal activities, and talking to outsiders can implicate fellow gang members and lead to their arrest and incarceration. Snitching also includes implicating rival gang members. To have a “snitch jacket” means that one cannot be trusted and is therefore vulnerable to being assaulted or killed. (17RT 4399.) Asked to explain certain aspects of gang lingo, Pottertestified that using the term “cuz,” means that the person being addressedis a fellow Crip. (/bid.) On the other hand, using the term “Nigga’is like saying “hey man,” and when a gang membersays “Nigga needs the D.A.hit, that’s who nigga needshit,” he is referring to himself in the third person and is saying that means he needsthe D.A. shot. (17RT 4400-4401.) Potter also testified that gang members can beidentified by their tattoos, and that by looking at appellant’s tattoos he couldtell that appellant was a Rolling 20s Crip. (17RT 4404-4407.) F. Penalty Phase Evidence 1. Aggravating Evidence The prosecution's case in aggravation consisted of presenting evidence of seven unadjudicated crimes, and a prior robbery conviction. The prosecution also presented victim impact evidence. (a) Carl Milling Murder On August 27 1990, after 2 a.m. Sergeant Keith Gregfrow of the Long Beach police department wascalled to a homicide scene. The victim was lying face down onthe steps with his handstied behind his back with a phone cord, and two gunshot woundsin his upper back. (20RT 5279-5280.) A neighbor reported hearing gunshots and seeing two people running from the scene of the crime., 32 one approximately 5'6" to 5'7" tall and 160 to 170 pounds,and the other 5'5"tall and medium weight." (20RT 5283.) No one was prosecutedfor this crime. . Lakisha Johnsonwasliving with her boyfriend, Carl Milling, who, the evening of August 26, 1990, brought three friends to the house, one of whom wasappellant. They stayed until after midnight. Johnson subsequently fell asleep on the couch, and was awakened by Carl about 2 a.m. He asked for her brother's phone number and then left. When Carl returned, masked men entered the house, put gunsto their heads andtold them to lie on the floor with their heads down. The men demanded money. Oneof the men took Johnson outside at gunpoint to the garage. While outside Johnson heard shots. Johnsontestified that she recognized one of the men as appellant, because one of his eyes was “droopy.” Johnsontestified that there were three masked men, however, on the night of the crime she told the police that there were two men and that she recognized one of the men as a man named Brian Miller, who was about 5'10" and weighed about 200 pounds. In her statement to the police she stated that the other suspect was about 5'7," and thatit was the second suspect whotook her outside to the garage. Several days later she told the police that there was a third suspect. Johnson testified that the third suspect was appellant. (21RT 5304 -5327.) | Homicide Detective Dennis Robbinstestified that he interviewed Alerey Ambrose, whotold Robbins that appellant had said he was a Rolling 20s gang member and that he was going to do ‘' Appellant is 6'3"tall, and at the time of his arrest in the instant case weighed 175 pounds. (1CT151.) 33 a robbery. Robbinstestified that Ambrose told him that appellant showed Ambrosea rag that he planned to use as a mask. According to Robbins, Ambrosetold him that Ambrose, Carl Milling and appellant had metat someone's houseandthenall went overto Milling’s house. Ambrose told Robbins that appellant subsequently left on his bike. (21RT 5345-5348.) Robbinstestified that the case wasstill open and no one had been charged. (21RT 5350.) Alerey Ambrosetestified that he was at Milling’s house with appellant on August 26, 1990, but denied having told Robbins any of what Robbinstestified Ambrose told him. (21RT 5330-5338.) (b) Sao Sarom Carjacking Sao Saromtestified that he was carjacked at gunpoint on June 6, 1990 by a groupof three to four black men. Sarom identified appellant as the one whoheld the gun, pulled Sarom outof his car by his collar and told him that he would shoothim if he called the police. Sarom’s car was returned a weeklater. Although Sarom picked appellant’s photo out of a photographic lineup, when he later cameto court to testify against appellant he told the district attorney that appellant was not the man. Sarom testified that he lied to the district attorney about this out of fear. (21RT 5371-5377.) Officer Terry Madison with the Long Beachpolice department testified that three days after the car was stolen Madison saw the car and stoppedit. Appellant was riding as a passengerin the car. (21RT 5388-5390.) (c) Artis Lisby Robbery Artis Lisby testified that he was held up at gunpoint on May15, 1991 by someone whom Lisby owed moneyfor a drug transaction. The manshot his gunin the air and drove off. Lisby testified that the 34 man had a very dark complexion, and although hetold the police that the man wasappellant, appellant was not the man who held him up (21RT 5397-5408.) Officer John Stolpetestified that Lisby told him that he and appellant had argued over money Lisby owed appellant and appellant pulled out a gun and fired a shot and then tookoff running. Lisby further told him that appellant returned with a larger gun with a towel wrapped aroundit, and then tookoff in a black car with someoneelse. (21RT 5491-5496.) (d) Ronald Broussard Murder Severalpolice officers testified that appellant was arrested on September 23, 1991, for the murder or Ronald Broussard, after he wasidentified in a photo lineup by an eyewitness to the shooting of Broussard, Armando Hernandez. Appellant told Timothy Cable, the investigating detective that he was asleep at his mother’s house when the shooting took place and that his mother wokehim upto tell him about the shooting. Appellant told Cable that Broussard (whom appellant referred to as “Chubby,” had been shot by a Mexican who waskilled the next night. Hernandezdid not identify appellant in a subsequentlive lineup, and the case was dismissed. (21RT 5411- 5438.) (e) Matthew Ferguson and Quincy Saunders Shootings Matthew Fergusontestified that at 11:30 p.m. on April 25, 1990, he had just returned home from work as a security officer, whenhe heard shots being fired in the backyard and alsoin the front. Oneof the shots hit him in the foot, but he did not see the person who shot him. (21RT 5465-5467.) The same night Quincy Saunders was shot in the hand and buttocks. (21RT 5469-5473.) Appellant was 35 detained becausehefit the description of the shooter. (21RT 5449.) A .38 revolver was found in the back seat of the car he wasriding in. Appellant stated that he carried the gunfor self-protection and that he had shot at a memberof the Westside Longos whopulled a shotgun on him. (21RT 5271-5274.) (f) Possession of a Loaded .32 Revolver While serving a search warrant on June 14, 1990, as part of a drug investigation Long Beachpolice officer Garth Miller found a loaded .32 revolverin appellant’s pants pocket. (21RT 5499-5501.) (g) Victim Impact Testimony AngelVilla’s sister and widow and Mario Lopez’s mother testified about the impact of their respective loved one’s murders. (21RT 5509-5534.) 2. Mitigating Evidence (a) Valerie Williams Valerie Williams, appellant's maternal grandmothertestified that appellant was a sweet, obedient child and a goodfatherto his own children. Shetestified that all of appellant's brother’s had spent long periodsin prison, and that appellant’s father had been a drug - addict and alcoholic. Williams noted that appellant's mother was a devout Christian, and that she and Williams had donethe best they could raising appellant. (21RT 5538-5551.) (b) Robert Robinson Robinson testified that he worked for a gang prevention/intervention program, and that he had brought appellantin to talk to kids to dissuade them from joining gangs. Robinson determined that appellant wasno longer an active gang member, and he was hopingto hire him to work in the program. Hefelt appellant 36 wassincere about wanting to help the community and changing his life. (51RT 5584-5581.) ‘(c) Helene Cummings Cummingstestified that she was a 29 year employeeof the Parks and Rec Department and had know appellant since birth. She testified that appellant had been a good child. She saw him when he got out of prison and he hugged herandtold her he was goingto get his life together. Cummings was not awarethat appellant was a gang member. (21RT 5590-5597.) (d) Jonathan Chaney Chaney, the teen director at the Boys and Girls Club of San Pedro and the JV coach at San Pedro High Schooltestified that he and appellant grew up together and played basketball together. Appellant wasinvolved in community efforts to stop gang violence and had participated in negotiating a gang truce about 1992 or 1993. (21RT 5602-5607.) Several additional witnessestestified that appellant had been a good child and was a goodfather; that he had been a goodathletein school. Several also talked abouthis efforts to promote rap music (21RT 5618-5720.) Appellant’s mother, Doris Vaughn, testified about appellant's father’s drinking and drug problems, and how appellant lost respect for his father because of them. She denied knowing about appellant's gang involvement. (21RT 5721-5736.) Appellant’s girlfriend and motherof his three children, Melissa Bedolla, testified that appellant was a devoted father. She notedthat she washalf-Mexican and that appellant was close to her Mexican — 37 father. She also denied knowing about his gang involvementor criminal record. (21RT 5739-5749.) KkKEKK 38 ARGUMENT I. APPELLANT WAS DEPRIVED OFHIS RIGHTS TO CONFRONT ADVERSEWITNESSES AND TO A FAIR TRIAL BY THE TRIAL COURT’S RESTRICTION OF CROSS EXAMINATION OF PROSECUTION WITNESSES REGARDING THE CIRCUMSTANCES LEADING UP TO ANNA GRANILLO’S ELEVENTH HOUR DECISION TO CHANGE HER STORY AND TESTIFY THAT SHE HAD SEEN APPELLANT ON THE GROUNDS OF THE APARTMENT COMPLEX SHORTLY BEFORE THE SHOOTINGS A. Introduction Appellant sought to cross-examine AnnaGranillo, Veronica Mungia and Detective Collette, to elicit the fact that Mungia had been told by the Deputy District Attorney (“prosecutor”) that without eyewitness testimony, appellant would “walk,” and that within 24 hours of that conversation Mungia’s sister, Anna Granillo, who had previously told the police that she wasin the back bedroom at the time of the shootings and did not see anything, came forward and agreed to testify that she saw appellant in the area shortly before the shooting. Defense counsel argued that both the substance and timing of the discussion between the prosecutor and Mungia were relevant to impeach Granillo. Although the trial court allowed trial counselto elicit the fact that Granillo came forward after Mungia spoke with the prosecutor, the court restricted counsel from asking Mungia and Detective Collette about what the prosecutortold Mungia during that conversation. Consequently, the jury was unawarethat the prosecutor told Mungia the case against appellant was weak, and that without an eyewitnessto identify him,appellant 39 would likely “walk.” ~ Had the jury had this information, it would have revealed Granillo’s strong motive to fabricate, and would thus have severely undermined the credibility of her testimony. Because Granillo was the only witness who placed appellant at the scene of the crime, her testimony identifying appellant was crucial to the prosecution’s case. Appellant should therefore have been allowed to pursue the above- describedline of cross-examination, and the court's ruling preventing him from doing so violated his Sixth and Fourteenth Amendment . rights to confront adverse witnesses, to present a defense and to a fair trial. Moreover, because the jury was deprivedofcritical information bearing on Granillo’s credibility, the error cannot be deemed harmless. B. The Circumstances Leading up to Anna Granillo’s Testimony On December9, 1997, after jury selection in thefirst trial had already commenced, the prosecutor announced that a new eyewitness had come forward whoclaimed to have seen two black men enter the apartment complex where crime occurred, shortly be the victims were shot. This witness was AnnaGranillo, the sister of Mario Lopez and Veronica Mungia. (1RT 139.) Granillo had been interviewed by the police on December 12 1996, the day of the murder, and had told them that she wasin the back bedroom ofthe apartment whenthe shootings took place and did not witness the shootings or have any idea whothe culprits were. However, Granillo was now saying that she had been doing her laundry during the afternoon and early evening on the day of the crime; that she saw appellant and Shermanin the alleyway as she walked back and forth 40 from her apartmentto the laundry room; and saw appellant and Sherman enter the apartment complex as she walked back from the laundry room to her apartmentright before the shooting. (1RT 196.) The prosecutor explained to the court that he met with Veronica Mungia on December8", to discuss “how the case looked” and the “state of the evidence.” (1RT 138.) He told Mungia that he neededto talk to the two peoplesitting outside the apartment with Mario Lopez when he wasshot, “Casper” and “Tricky.” He also asked Mungia about a man named “Joker,” whom he believed could provide a motive for the killing. (/bid.) Mungia later called the prosecutor and told him that none of the aforementioned witnesses would cooperate, but that Anna Granillo had seen two menenter the apartment complex.” Granillo subsequently gave a statement to one of the detectives and identified appellant and Sherman as the men she had seen. (1RT 138-139.) Defense counsel, who apparently had never before been apprised of either Anna Granillo’s existence or her December 1996 | statementto the police, argued that the prosecutor had improperly concealed the identity of a witness. She further argued that the jury wasentitled to hear about the events precipitating Granillo’s new statement; specifically, that the prosecutor went to Mungia andtold that he did not have enough witnesses, and when the witnesses the prosecutor said he needed refused to cooperate, Mungia instead presented Granillo as a witness. (1RT 197-198; see also 1CT Supp.V 81-84 [Declaration of Thomas Garvin, Private Investigator].) Defense counselarguedthat the timing and circumstances under which Granillo came to change her story were “suspicious,” and created an inference that she changed herstory and agreedtotestify 41 because she knewfhe prosecutor otherwise did not have enough witnesses to convict appellant. (6RT 1770-1773.) C. The Trial Court’s Rulingin the First Trial In thefirst trial, prior to the opening statements defense counsel madeanin limine motion seeking the court’s permission to cross-examine Victoria Mungia about the December8" conversation she had with the prosecutor. Thelatter objected on the groundsthat such testimony would be “irrelevant hearsay.” Defense counsel explained that she was notoffering the evidenceforits truth, but rather to show that Mungia, based on what the prosecutor told her, was afraid that the prosecutor would be unableto get a conviction if she could not find witnesses for him. Counsel arguedfurther that the evidence was “extremely relevant” to establish the events leading up to Granillo’s coming forward with her new story. (6RT 1763-1773.) The prosecutor maintained that Mungia’s state of mind wasirrelevant. (6RT 1774.) The court thereupon ruled that defense counsel could cross-examine Granillo about the circumstancessurrounding her changein statement, but that counsel could not bring up the conversation between Mungia and the prosecutor, and it would not allow any testimony regarding that conversation. (6RT 1774 -1775.) When defense counsel cross-examined Mungia, she attempted to ask Mungia about the circumstancesthat led her to providing information to the prosecutor on December8, 1996, about Granillo being a possible witness. The prosecutor objected, the court admonished defense counsel not to elicit testimony from Mungia regarding the content of the conversation she had with the prosecutor. (7RT 1856-1858.) 42 During defense’s counsel’s cross-examination of Granillo, defense counsel asked her whether Mungia told that she had met with the prosecutorat his office, at which point the prosecutor objected on hearsay grounds. He further complained that defense counsel wastrying to accuse him of concealing evidence or presenting false testimony. (7RT 1927-1929.) The court told defense counsel that she could ask Granillo whether Mungia told Granillo that she had talked to the prosecutor about the case, and whether Mungia urged Granillo to come forward and testify, but could not ask her whatthe prosecutor said to Mungia about the strength of his case, because that was hearsay. (7RT 1929-1930.) Granillo testified that Mungia told her to contact the prosecutor. (7RT 1932.) She claimed that on the day of the crime, she lied to the police about having been in the back bedroom and not having seen the shooters, because she wanted to get on with herlife and notrelive the experience. (7RT 1914.) She knew nothing about the trial until Mungia came to her house andtold her, and shefelt guilty about not having comeforward before. (/bid.) D. The Trial Court’s Ruling in the SecondTrial During defense counsel's cross examination of Mungia in the secondtrial, Mungia testified that she had a conversationon December8, 1996, with a different prosecutor than the onetrying the case, and afterwards she provided the other prosecutor with Granillo. At the time Mungia wasof the “state of mind” that she neededto find additional witnesses. (14RT 3708-3709.) Defense counselthen asked Mungia whether, as a result of her December 8" conversation with the other prosecutor, she wasof the state of mind that she needed to obtain additional witnesses because the case was weak. 43 The prosecutor objected to this question as calling for speculation and the court sustained his objection. (14RT 3709.) Although Granillo acknowledged upon cross-examination that she had come forward because of a conversation Mungia had with Prosecutor on December8, 1996, defense counsel did not attempt to ask Granillo any questions about the details of hersister's conversation with the prosecutor. (15RT 3801-3802.) However, counseldid attemptto elicit this information during her cross- examination of Detective Collette. The prosecutor objected on ‘hearsay grounds and the court sustained his objection. E. The Evidence Counsel SoughtTo Elicit Was Not Hearsay "Hearsay evidenceis evidence of a statement that was made other than by a witness while testifying at the hearing and thatis offered to provethe truth of the matter stated.” (Evidence Code § 1200(a).) As trial counsel explained, she wasnotoffering the prosecutor's assessmentof the strength of his caseforits truth, but rather to show Veronica Mungia’s state of mind when she spoke with Anna Granillo after meeting with the prosecutor and, more importantly, Anna Granillo’s state of mind when she cameforward with her new story. Counsel’s purposein eliciting this testimony was to prove that Granillo had a motive to lie. Evidence of motiveis admissible under Evidence Code section 780, subd.(f),(People v. Johnson (1984) 159 Cal.App.3d 163,168), and is not hearsay. (People v. Bolden (1996) 44 Cal. App. 4th 707-714-715 [evidence offered to show motive is not hearsay]; see also People v. Scalzi (1981) 126 Cal.App.3d 901, 907 [evidence of declarant's statement is not hearsay when offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such 44 information to be true, acted in conformity with that belief].) Exclusion on hearsay groundsof what the prosecutor said to Mungia about the state of the evidence was therefore erroneous.(Peoplev. Archer (2000) 82 Cal.App.4th 1380, 1392 (court erred in excluding as hearsay evidencethat was offered for limited purposesof impeachment).) F. Appellant Was Deprived Of His Right Under The Sixth And Fourteenth Amendments To Cross-examine Granillo, Mungia and Collette About What Granillo Had Been Told About Mungia’s Conversation with the Prosecutor In Order to Establish that Granillo had a Motiveto Fabricate Thetrial court's restriction of defense counsel's cross-examination on the content of Mungia’s December 8" conversation with the prosecutor, violated Davis v. Alaska (1974) 415 U.S. 308, in which the Supreme Court held that the right to confrontation guaranteed by the Sixth and Fourteenth Amendments, includes the right to cross-examine witnesses to show their possible bias or self-interest in testifying. In Davis, the prosecution had moved for a protective order restricting the defensefrom making any reference to the juvenile record of the prosecution's key witness, Green, during the course of cross-examination. Green, like Anna Granillo in the instant case, wasa crucial witness for the prosecution. In opposing the protective order, Davis' counsel argued that he wastrying to establish — or at least argue — that Green had acted out of fear or concern of possible jeopardy to his probation. Not only might Green have madea hasty and faulty identification of Davis in order to shift suspicion away from himself as the robber, but he might have been subject to undue 45 pressure from the police, and madehis identification underfear of possible probation revocation. (415 U.S. at pp. 310-311.) Thetrial court granted the protective order, and the Supreme Court ruled that such restriction of Davis' cross-examination of Green wasa violation of Davis' right of confrontation; that Davis was entitled to show Green's susceptibility to unduepressure. The Court declared: The partiality of a witness is subject to exploration at trial and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore, Evidence §940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Green v. McElroy, 360 U.S. 474, 496... (1959)... . (T)he jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgmentas to the weight to place on Green's testimony which provided ‘a cruciallink in the proof. . of petitioner's act.’ Douglas v. Alabama, 380 U.S. at 419... The accuracy and truthfulness of Green's testimony were key elements in the State's case againstpetitioner. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure becauseof Green's vulnerable status as a probationer, cf. Alford v. United States, 282 U.S. 687 .. . (1931), as well as Green's concern that he might be a suspectin the investigation. (415 U.S. at pp. 316-318, emphasis added.) Thesituation presentedin the instant caseis materially indistinguishable from that in Davis. In both cases, defense counsel were seeking to discredit testimony of a crucial prosecution witness, the accuracy and truthfulness of which were key elements of the prosecution's case. In both cases, defense counsel were seeking to 46 create an inference’that the witness wasgiving false testimony as a result of undue pressure. As in Davis, the trial court's restriction of defense counsel's cross-examination, violated appellant's right of confrontation guaranteed by the Sixth and Fourteenth Amendments. (DePetris v. Kuykendal (9th Cir.2001) 239 F.3d 1057,1062 [where defendant's guilt hinges largely on testimony of prosecution witness, erroneous exclusion of evidencecritical to assessing witness’ credibility violates the Constitution].) While a trial court retains discretion to impose reasonable limits on cross-examination based on concerns about "harassment, prejudice, confusion of the issues, the witness’ safety, or - interrogation that is repetitive or only marginally relevant" (Delaware — v. Van Arsdall (1986) 475 U.S. 673, 679), it is has nevertheless been emphasized that where the prosecution's case turns on the credibility of a prosecution witness, defense counsel must be given a maximum opportunity to test the credibility of that witness. (Banks v. Dretke (2004) 540 U.S. 668, 688; Murdoch v. Castro (9th Cir. 2004) 365 F.3d 699, 704.) Appellant was denied an opportunity to effectively test Granillo’s credibility by virtue of the trial court's improper restriction on the scope of defense counsel's cross-examination. G. Appellant Was Also Deprived Of His Right To Due Process Of Law, His Right To Present A Defense, AndHis Right To A Reliable Penalty Determination, Due To TheTrial Court's Improper Restriction Of Defense Counsel's Cross-examination A state court cannot arbitrarily reject a defendant's evidence or impedehis right to present a defense. (Chambers v. Mississippi « (1973) 410 U.S. 284; Green v. Georgia (1979) 422 U.S. 95.) In Chambers, the Supreme Court declared that "[t]he right of an 47 accused to due process is, in essence, the right to a fair opportunity to defend against the State's accusations," and further observedthat the right to confront and cross-examine witnesses has long been recognized as essential to due process. (410 U.S. at p. 294.) The Court explainedthat: Theright of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-determining process.' [Citations omitted.] It is indeed ‘an essential and fundamental requirement for the kind offair trial which is this country's constitutional goal. [Citations omitted.] Of course, the right to confront and to cross-examineis not absolute and may,in appropriate cases bow to accommodateotherlegitimate interests in the criminaltrial process. [Citation omitted.] But its denial or significant diminution calls into question the ultimate ‘integrity of the fact-finding process’ and requires that the competing interests be closely examined. [Citation omitted.] (Id. at pp. 294-295.) In the instant case, the trial court's evidentiary ruling was legally erroneous and therefore arbitrary. Indeed, as has been shown above,the court had no "legitimate interest” in precluding cross-examination of Mungia and Collette about whetherGranillo had been told by Mungiathat the prosecutor feared that appellant would not be convicted unless a witness could place him at the scene of the crime. By contrast, the defense had a legitimate interest in placing that evidence beforethe jury, becauseit severely undercut Granillo's credibility, by showing she had a motive to change her story to provide the prosecutor with evidence connecting appellant to the crime. The court's erroneousruling denied appellant the opportunity to establish this critical fact. Appellant was thus deprived 48 of his right to a fair trial under the Due Process Clause ofthe Fifth and Fourteenth Amendments, and his right to present a defense guaranteed by the Sixth Amendment. (DePetris v. Kuykendal, supra, 239 at p. 1062 [erroneous exclusion of critical corroborative defense evidence violates both the Fifth Amendment due processright to a fair trial and the Sixth Amendmentright to present a defense]. In addition, to the extent that the jury convicted appellantof special circumstance murderon the basis of Anna Granillo's testimony, the reliability of such conviction and subsequent death sentence are substantially undermined by the fact that appellant was improperly precluded from subjecting Granillo’s credibility to meaningfultesting, in violation of appellant's right to a reliable penalty determination guaranteed by the Cruel and Unusual Punishment Clauseof the Eighth Amendment. (U.S. v. Cronic (1984) 466 U.S. 648, 656 (without an opportunity to subject the prosecution's case to the "crucible of meaningful adversarial testing," there can be no guarantee that the adversarial system will function properly to producejust and reliable results); Lockett v. Ohio (1978) 438 U.S. 586, 604 (qualitative difference between death and other penalties calls for greater reliability when death sentenceis imposed); Beck v. Alabama (1980) 447 U.S. 625, 638 (Eighth Amendment mandatesinvalidation of rules that diminish reliability of guilt determination in capital case).) H. By Restricting Counsel’s Cross-Examination, The Court’s Erroneous Ruling Prevented Appellant From Pursuing Critical Impeachment And Was Therefore Highly Prejudicial Although the jury was told that Granillo had changed herstory, 49 and that she had donesofollowing a conversation between her sister and the prosecutor, the jury was nottold that during that conversation the prosecutor had told her sister that his case against appellant was weak, andthat he believed that appellant would be acquitted unless Mungia could find witnesses to the crime who would identify appellant as the shooter. They also were nottold that Mungia could not get “Casper,” “Tricky,” and “Joker”to testify, so she approached Granillo for help. This information wascritical to impeach Granillo’s testimony that her statement on the night of the crime wasfalse, and that she was nowtelling the truth. It was also critical to impeach her explanation of why she hadinitially given a false statement, and why she decided to comeforward with “the truth,” a full year later, just as the casewas goingtotrial. Granillo’s testimony was the only evidence placing appellantat the sceneof the first shooting. It also bolstered Nery Hernandez and Maria Jaramillo’s testimony identifying appellant as the man who shot Hernandez and Jose Villa. Without Granillo’s testimony, the prosecution’s case against appellant (as the initial prosecutor himself acknowledged) was extremely weak, andit is highly doubtful that the prosecution could have obtained a conviction. The court’s arbitrary restriction of appellant’s confrontation of Granillo regarding her decision to “come forward,” thwarted appellant’s ability to effectively impeach the credibility of this key prosecution witness. Respondent cannotestablish that the court’s error was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24.) Accordingly, for all of the foregoing reasons, appellant's conviction and death sentence must be reversed. KEKKK 50 THE ERRONEOUS EXCLUSION OF ROBERT ROBINSON’S TESTIMONYIN THE GUILT PHASE DEPRIVED APPELLANTOF HIS CONSTITUTIONAL RIGHTS TO PRESENT HIS DEFENSE AND TOA FAIR TRIAL AND RELIABLE VERDICT A. Introduction The prosecution’s theory was that appellant was a memberof the Rolling 20s, and that the shootings in the instant case were motivated by gangrivalry between the Rolling 20s and the East Side Longos. To prove that appellant was a memberof the Rolling 20s gang, the prosecutor presented the testimony of two police officers, that in 1990, appellant had claimed membershipin that gang (15RT 3935, 3940), and appellant was ordered to showthe jury tattoos indicative of such membership. (17RT 4405-4406.) Appellant's defense was that by December 1996, when the crimes took place, he was no longeran active gang member, and was mistakenly identified as the killer in this case. In furtherance of that defense, appellant soughtin the guilt phase to introduce the testimony of Robert Robinson, that at the time of appellant’s arrest for the crimes herein, Robinson wasin the processofhiring appellant to work as a counselorin a city-run gang prevention program, in which former(i.e., no longer active) gang members counseled young people againstjoining gangs and engagingin violence. (18RT 4701.) As part of the screening process, Robinson determined that appellant was no longer an active gang member. He did so on the basis of (1) his interview of appellant, in which appellant stated that he hadleft the gang, (2) discussions with numerous members of the community, and (3) his personal 51 observationsof appellant’s interactions with youth served by the | program. (18RT 4694-4699.) In a hearing held under EvidenceCode section 402, Robinson testified that he was employed as a gang prevention outreach counselor with the Long Beach Parks, Recreation and Marine Department. The function of his program wasto stop gang violence and find jobs for youth in the community to keep them from ending upin jail. (18RT 4691.) He added that the employeesof the program workedclosely with the Long Beachpolice. (18RT 4692.) In his job, Robinson worked primarily with gang members and former gang members. He himself was also a former gang member. (/bid.) Robinsontestified that he became acquainted with appellant two years before when appellant came to Robinson'soffice in the processoftrying to find a job. Robinson interviewed appellant and appellant told Robinson he wanted to work for Robinson's organization because he had seen howwell their program was working. Because of appellant's strong interest Robinson wanted to give appellant a job as a violence prevention counselor. In the processof “screening” appellant, Robinson took him to someof the outreach programs to see how well he would do, and appellant did well talking to the kids, of whom a number were gang members. (18RT 4693.) Robinson explained that his objective wasto hire an ex-gang memberfrom oneof the rival Long Beach gangs, who was familiar with the problems going onin the community, and would have “somekind of influence talking to someof these youngsters.” In order to determine whether appellant was no longer an active _ gang member, Robinson stated that as part of his usualhiring practice he had thoroughly checked appellant out, talking to many 52 people in the community, including gang members — even those belonging to rival gangs. In doing so, Robinson learned appellant wasno longer active and had been“pretty clean.” Robinson also asked appellant himself whether he wasstill in the gang, and appellant told him that he was not anymore, and that he wastrying to gethis life together because he had children. Robinson notedthatit was not uncommonfor gang membersto get out of the gang once they started having adult responsibilities. Had appellant not been arrested on the charges for which he was being tried, Robinson would have hired appellant. (18RT 4695.) Whenasked on cross-examination how he knewthat appellant wasno longeractive with the Rolling 20s, Robinson explained: BecauseI’ve been out in the community. I’m an outreach worker, and | know a lot of people out in the community. And what we do whenwescreen people is we check with both sides, the 20s, the Insanes,'* and wefind out really, you know,if this guy has been doing anything or he’s been doing this. And lot of people, they just give you straight answers, you know: “the dude been laying low. He ain’t beentripping. | seen him the other day. We wave at each other.” And thatlet (sic) us know that his mindis at a different level.” (148RT 4697-4698.) Robinsonfurther explained that such an investigation involves talking to manydifferent people in the community (18RT 4698.) Robinson also described how the manner in which appellant related to the teens served by the program persuaded. him that appellant was no longer gang-banging: Just seeing as reactions how he felt when we went on ‘2 Reference to another Long Beach black gang knownas the “Insane Crips.” (17RT 4371.) 53 little interviews or what we call our presentations. We do interviews, the kids, Parks, Recs., and Marine which we work with all the parks, the teen centers andstuff. Sometimes we even go to city colleges. And just by his conversation, the way hefitted in and wastalking to the kids, letting them know there’s otherthings out there letted (sic) me know that his mind wasin different place. (18RT 4699.) The prosecutor opposed the admission of Robinson’s testimony on several grounds. He argued that appellant's statement to Robinson and the statements of others in the community were inadmissible hearsay. He further argued that Robinson could not offer the “expert” opinion that appellant was no longeractive in the gang, and he also argued that Robinson's testimony wasirrelevant. Thetrial court disagreed with the prosecutor on the last point — it found the evidencerelevant to rebut the prosecution’s evidence that appellant was a gang member. (18RT 4709.) However,it agreed with the prosecutor that any testimony regarding statements madeby appellant or others to Robinson would be inadmissible hearsay. (18RT 4710-4711.) In addition, although the court initially, ruled that Robinson could testify about his own observationsof appellant duringthe time appellant was interacting with the youth (18RT 1411),it ultimately decided to exclude this testimony as well The court ruled as follows | am going to preclude the testimony of Mr. Robinsonfor the following reasons: Mr. Robinson when questioned concerning the basesfor his opinion had three different bases for his opinion. Thefirst was the defendant's own statement that he was 54 no longer a gang member; The second, and apparently more important, was the — Mr. Robinson's interviewing other personsin the community with whom he has contact, both fellow Rolling 20smembers as well as membersof rival gangs, concerning the currentactivities of the defendant with respect to gang activity. And, then, third, his observations of the defendant interacting with persons on the street during — _ apparently, during a (sic) outreach program. And Mr. Robinson — it appears that that was a confirming factor in Mr. Robinson’s mind that based upon what he had heard and based upon his observations together that he believed that the defendant wasin the process or leaving the gang or had left the gang. ! believe that he did testify previously that he thought that Mr. Jones wasin the process of breaking off his relationship with other gang members,and then todayit washis opinion that he either had left the gang or had madea decision, at least, to leave the gang. And because the opinion is based on three factors and not just a single factor, and becausethe (sic) two of the factors were apparently, according to Mr. Robinson's testimony, significant in his determination and his ultimate opinion with respect to the defendant’s current gang membership,| don’t believe that — | think that the jury would be misled if they were — because of the hearsay problem, if they were to hear from Mr. Robinson that the only basis about which he could testify would be the personal observations, and that would not give a complete record or complete information about Mr. Robinson's opinion. And | don’t believe that there is sufficient expertise established by Mr. Robinson. He does have a 55 significant history or involvement either personally or with a gang or now more recently since he is no longer an active gang member— no longer a gang memberat all, his work with gang members on a daily basis gives him sufficient experience to be knowledgeable about gangs, but not sufficient basis on observation alone of the defendant’s interaction — and we don’t know how many occasions — with personsonthe street to form that opinion. — (18RT 4721-4723, emphasis added.) — As will be demonstrated below,the trial court abusedits discretion in excluding Robinson's testimony. Due to his gang expertise (acknowledgedbythetrial court), Robinson should have been permitted to testify as an expert witness pursuant to Evidence Code sections 720 and 801, that, in his opinion, appellant was no longer an active gang member. As an expert witness, he could have cited as the basis of his opinion his interviews of appellant and of others in the community, as well as his own observations of appellant’s conduct and demeanor. However, evenif this Court were to find that Robinson was merely a percipient witness, his testimony regarding appellant’s reputation in the community at the time the crimes occurred, would still have been admissible as reputation evidence under Evidence Codesections 1102 and 1324, and his opinion based on his own perceptions of appellant's mannerand conduct while interacting with the teens targeted by the program, would further have been admissibleunder Evidence Code sections 800 and 1102. The following discussion will further establish that the erroneous exclusion of Robinson’s testimony deprived appellant of his constitutional rights to present his defense, to due processof law 56 andto a fair trial and reliable verdict. The error was also extremely prejudicial and requires reversal under both state and federal law. B. Robinson Should Have Been Permitted to Testify As a Gang Expert That, In His Expert Opinion, Appellant Was No LongerAn Active Gang Member 1. Robinson Was Qualified to Testify as a Gang Expert The Evidence Code defines an expert witness as a person whohas“special knowledge, skill, experience ortraining to qualify him as an expert on the subject to which his testimony relates.” (Evidence Code § 720 (a).) Thelatter attributes may be established by the witness’s own testimony.” (Evidence Code § 720 (b).) In the instant case, defense counsel argued that based on his extensive experience as both a gang memberhimself and someone who worked on a daily basis with gangs and gang members, Robinson was indeed an expert on gangs. (18RT 4701-4702.) The prosecutordid not dispute this, and the court acknowledgedthat Robinson had substantial experience with and, therefore, knowledge of gangs. (18RT 4723.) Therefore, while Robinson wasnotformally qualified as gang expert, the court made a finding that was, forall intents and purposes,functionally equivalent. 2. A Gang Expert Is Permitted To Testify Whether, In His or Her Opinion, the DefendantIs or Is Not an Active Gang Member This Court has upheld the usein criminaltrials of gang experts; ie., individuals with knowledge of gang culture and behavior, matters which are “sufficiently beyond common experience that the opinion of an expert witness would assistthetrier of fact.” (Evidence Code § 801(a); People v. Gardeley (1997) 14 Cal.4th 605, 57 617; People v. Ward (2005) 36 Cal.4th 186, 210. Moreover, a gang expert may permissibly testify that, in his or her expert opinion, the defendantis an active participant of a particular gang and his behavioris consistent with the practices of that gang. (People v. Gardeley, supra, 14 Cal.4th at pp. 613, 624; People v. Valdez (1997) 58 Cal.App.4th 494, 506; People v. Gamez (1991) 235 Cal.App.3d 957, 964, (disapproved in part on other grounds in Peoplev. Gardley, supra, 14 Cal.4th at 624, fn 10); People v. Garcia (2007) 153 Cal.App.4th 1512-1514; People v. Zermeno (1999) 21 Cal.4th 927, 929-930; People v. Duran (2002) 97 Cal.App.4th 1448, 1464; 185 Cal.App4th 309, 318.) Had he beenallowedto testify, Robinson would have stated his opinion that appellant was an ex-gang member who was no longerparticipating in gang activities. If it is permissible for a gang expert to testify that the defendant was an active gang member when the crime occurred, it must also be permissible for him to state the opinion that the defendant was not an active gang memberat that time. There is no logical basis upon which the two can be distinguished. Thetrial court therefore abused its discretion whenit precluded Robinson from testifying accordingly. 3. As a Gang Expert Robinson Could Rely On Hearsay, Including Appellant’s Own Statements, In Forming His Opinion, And Could Testify as To the Basis Of That Opinion An expert witness may, on direct examination, describe the reasonsfor his or her opinion and the matter on which the opinion is based. (Evidence Code § 802.) Assuming that it meets the threshold requirementofreliability, “matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion 58 testimony.” (Peoplé v. Gardeley, supra, 14 Cal.4th at p. 618, emphasis in original). This includes hearsay.(/bid.) Thus, statements of unidentified gang members, together with personal observations and experience,as well as conversations with the defendant himself, have been held sufficiently reliable to be admissible as a basis for a gang expert’s opinion. (/d. at p. 620); People v. Sengpadychith (2001) 26 Cal.4th 316, 324; People v. Gonzalez (2006) 38 Cal.4th 932, 949; People v. Gamez, supra, 235 Cal.App. 3d at p. 968; People v. McDaniels (1980) 107 Cal.App.3d 898, 904.) As explained by the court of appeal in Gamez: Wefail to see how the officers could proffer an opinion about gangs, and in particular about gangsin the area, without reference to conversations with gang members. While the credibility of those sources might not be beyond reproach, nevertheless, as the court in McDaniels and the Law Revision Commission to Evidence Codesection 801 note,‘[t]he variation in the permissible bases of expert opinion is unavoidable in light of a wide variety of subjects upon which such opinion can be offered.’ (/bid.) To know about the gangsinvolved, the officers had to speak with members and their rivals. Furthermore,the officers did not simply regurgitate what they had been told. Rather, they combined what they had beentold with other information, including their observations, in establishing a foundation for their opinions. The statements of gang members, which in part formed the basesofthe officers’ opinions, were notrecited in detail during the officers’ testimony but were referenced in a more general fashion, along with other corroborating information. (235 Cal.App. at p. 968; see also People v. Gonzalez, supra, 38 Cal.4th at p.949 [“A gang expert’s overall opinionis typically based on information drawn from many sources and onyears of experience, which in sum maybereliable’].) 59 The kinds of sources that Robinsonrelied uponin forming his opinion that appellant was no longer an active gang member were the same asthose relied upon by the gang experts in Gamez, Gonzalez, and the other casescited above. Furthermore, the reliability of the information Robinson cited as the basis for his opinion, was enhancedbythe fact that Robinson had himself usedit to determine whether appellant would be suitable to counsel youth againstjoining gangs and engaging in violence. Robinson stated clearly that he made his determination on the basis of a thorough investigation that involved consultation of multiple sources.'? Under the circumstances,the trial court’s ruling that it was inadmissible because it was hearsay waslegally erroneous, and the court therefore abusedits discretion in excluding the evidence. C. Even If Merely a Percipient Witness, Robinson Should Still Have Been Allowed to Testify That (1) Appellant Had a Reputation When the Crimes Were Committed as Someone Who Had Eschewedthe Gang Lifestyle, and (2) Robinson’s Opinion, Based Upon His Personal Perception of Appeliant’s Behavior, Was That Appellant Was Not an Active Gang Member 1. Reputation Evidence Robinsonclearly qualified to testify as an expert on Long Beach gangs,but evenif he werestrictly a percipient witness, he should have been permitted under Evidence Code sections 1102 ‘8 Robinson explained that when his organization hires former gang memberto work as gang prevention counselors they screen potential candidates by interviewing “manydifferent people” to determine whetheror not the candidate is truly no longeractively involved with a gang. (18RT 4697-4698.) 60 and 1324,to testifythat appellant’s reputation in the community was that he was not a gang memberat the time of the crime. Decisions of this Court establish that reputation testimony is admissible even though based on hearsay. (People v. McAlpin (1991) 53 Cal.3d 1289, 1312; People v. Eli (1967) 66 Cal.2d 63, 78; In re Freeman (2006) 38 Cal.4th 630, 640.)"* In McAlpin, supra, 53 Cal.3d at pp. 1311-1312, in which the defendant was charged with molesting his girlfriend’s daughter, the Court held that it was error for the trial court to exclude character testimony that appellant had a reputation for “normalcy in his sexual tastes” and was a person of “high moral character.” The Court held that the reputation evidence was both relevant to the charge and admissible under Evidence Code section 1102, subd. (a), which provides that a criminal defendant may present evidence of character or a charactertrait in the form of an opinion or by reputation evidence,to prove his or her conductin conformity with such character or charactertrait. In the present case, Robinson knew from his investigation that appellant's reputation was that he had was “clean” and no longer an active gang member. Suchtraits were directly relevant to refute the prosecution's allegation that appellant shot the victims for some (undefined) gang-related purpose. As in McAlpin, the reputation testimony was also admissible under Evidence Code section 1102, ‘4 Sée also Evidence Code section 1324, which provides: Evidence of a person’s general reputation with reference to his characterora trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated, is not made inadmissible by the hearsay rule. 61 subd.(a), andits exclusion was thereforeerror. 2. Lay Opinion Testimony _ As a percipient(i.e., non-expert) witness, Robinson could also properlytestify that, based upon his personal observation of and interaction with appellant, it was his opinion that appellant had repudiated his former gangsterlifestyle and become a person of suitable character to counsel young people notto join gangs or engagein violence. Lay opinion testimony is admissible under _ section 1102, subd. (a) of the Evidence Code, whenit is based on the witness’s personal observation of the defendant's course of behavior. (People v. McAlpin, supra, 53 Cal. 3d at pp. 1306-1310; People v. Felix (1999) 70 Cal.App.4th 426, 430.)’° In McAlpin, supra, 53 Cal.3d at p. 1309, this Court held it was errorfor the trial court not only to exclude the reputation evidence described above, but also to exclude the testimony of the defendant’s formergirlfriends that in the course of their relationship with the defendant they observed his conduct with their daughters. and saw no unusual behavior by the defendantor their daughters, andthatit was their opinion, based on those personal perceptions, ‘5 See also Evidence Code section 800, which provides: if a witness is not testifying as an expert, his testimony in the form of opinion is limited to such an opinion as is permitted by - law, including but not limited to an opinion thatis: (a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony. 62 that the defendant Was not a person given to lewd conduct with children. In the instant case, it was similarly erroneousforthe trial court to have barred Robinsonfrom testifying as to his personal perception of appellant, and how based uponthat perception, it was his opinion that appellant was no longer an active gang member."® D. The Erroneous Exclusion of Robinson’s Testimony Deprived Appellant of His Constitutional Right to Present His Defense The compulsory process clause of the Sixth Amendment and article |, section 15 of the California Constitution, and the due processclause of the Fourteenth Amendmentandarticle |, sections 7 and 15 of the California Constitution provided appellant with the rights to produce witnesses on his behalf and to present a complete defense. (See Holmes v. South Carolina (2006) 547 U.S.319, 324; Taylorv.Illinois (1988) 484 U.S. 400, 409; Crane v. Kentucky (1986) 476 US. 683, 690; California v. Trombetta (1984) 467 U.S. 479, 485; Chambersv. Mississippi (1973) 410 U.S. 284, 294; Washingtonv. Texas (1967) 388 U.S. 14, 22-23.) "Few rights are more fundamental than that of an accused to present witnessesin his own ‘6 Although thetrial court did not specifically invoke Evidence Code section 352 as a grounds for barring Robinson from offering his opinion, it found that “the jury would be misledif they were — becauseof the hearsay problem, if they were to hear from Mr. Robinson that the only basis about which he could testify would be the personal observations, and that would not give a complete record or complete information about Mr. Robinson’s opinion.” (18RT 4723.) Because there was no “hearsay problem,”and Robinson’s personal observations were not “the only basis about which he could testify,” the trial court’s reasoning wasflawed,andits finding is not entitled to any deference on appeal. 63 defense." (Chambersv. Mississippi, supra, at p. 302.) Furthermore, notions of fundamental fairness inherent in the due process clause require "that criminal defendants be afforded a meaningful opportunity to present a complete defense.” (California v. Trombetta, supra, at p. 485, quoted in Crane, supra, at p. 690.) The exclusion of Robinson’s testimonyin the instant case violated appellant's | constitutional rights to present witnesses and a complete defense.’ Althougha trial court's evidentiary rulings do not ordinarily implicate a defendant's constitutionalrights (see People v. Kraft (2000) 23 Cal.4th 978, 1035), the Constitution does not tolerate bars on defense evidenceif the evidentiary bar infringes a defendant's weighty interest andis arbitrary or disproportionate to the purposes the evidentiary bar was designed to serve. (Holmes v. South Carolina, supra, 547 U.S. at p. 324.) United States Supreme Court precedents indicate that exclusions of defense evidenceviolate a defendant's rights to present a defenseif the evidence is exculpatory ” Although the rightsto elicit testimony from defense witnesses and to present a complete defense have separate constitutional sources, courts have analyzed claims arising under each of those rights similarly. (See Holmes v. South Carolina, supra, 547 U.S. at p. 324 [Whetherrooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guaranteescriminal defendants "a meaningful opportunity to present a complete defense."""], quoting Crane v. Kentucky, supra, 476 U.S. at p. 690 and California v. Trombetta, supra, 467 U.S.at p. 485.) Whenproffered defense testimony is excluded from the defense case-in-chief, the rights to present defense witnesses and to present a complete defense are coextensive. In this brief, where appellant refers explicitly only to the violation of his rights to present a defense, he alleges violations of both his rights to present defense witnesses and to present a complete defense. 64 and critical to the défense, so long as the state lacks an overriding interest in maintaining the integrity of the adversarial process by excluding the evidence. To ensure that the exclusion of evidence prejudiced a defendant, the excluded evidence must be favorable to the defense. (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867.) The primary mechanism fordifferentiating between ordinary state-law evidentiary error and a constitutional violation is the requirementfor a rights-to-a-defense claim that the excluded evidence be crucial to the defense. In most casesfinding a violation of the rights to a defense, the United States Supreme Court has emphasized the centrality of the excluded evidence to the defense. (See Rockv. Arkansas (1987) 483 U.S. 44, 57; Crane v. Kentucky, supra, 476 U.S. at p. 690; Green v. Georgia (1979) 442 U.S. 95, 97; Davis v. Alaska (1974) 415 U.S. 308, 317-318; Chambers v. Mississippi, supra, 410 U.S.at p. 302.) Lastly, recognizing that "state and federal rulemakers have broad latitude under the Constitution to establish rules excluding _ evidence from criminaltrials" (United States v. Scheffer (1998) 523 U.S. 303, 308, quoted in Holmes v. South Carolina, supra, 547 U.S. at p. 324), the United States Supreme Court has concluded the exclusion of crucial exculpatory evidence would notviolate a defendant's constitutional rights if the exclusion advancesstate interests in maintaining the integrity of the adversarial process sufficientlyto outweigh the defendant's interest in presenting crucial exculpatory evidence. (See Taylorv. Illinois, supra, 484 U.S. at pp. .414-415: Rock v. Arkansas, supra, 483 U.S. at p. 56.) Accordingly, a defendant's Sixth and Fourteenth Amendmentrights are not violated by the exclusion of unreliable scientific evidence (see United States 65 v. Scheffer, supra, at pp. 308-317), or untrustworthy hearsay (see, e.g., People v. Morrison (2004) 34 Cal.4th 698, 724-725; People v. Ayala (2000) 23 Cal.4th 225, 269), or the exclusion of evidence as a sanctionforfailure to give timely notice of a witness or evidence (see Michigan v. Lucas (1991) 500 U.S. 145, 149-153; Taylorv.Illinois, supra, at p. 415). In the instant case by contrast, the State had nolegitimate interest in excluding Robinson's testimony, which as demonstrated above wasboth highly relevant and legally admissible. Excluding the evidence did not impedethe fair administration of justice or prejudice the truth-determining function of the trial process. (See Taylorv. Illinois, supra, 484 U.S. at pp. 414-415.) Thetrial court’s exclusion of Robinson’s testimonyinfringed appellant’s constitutional rights. As discussed above,the prosecution’s case against appellant was premised upon the allegation that he wasa memberofthe Rolling 20s gang, and that he committed the crime as part of a gang “war” between the Rolling 20s and the East Side Longos. Robinson’s testimony would have established that appellant was no longer an active gang member and wasin fact seeking employment as a counselor in a program aimed at quelling gang violence, thereby rebutting his alleged motive for shooting the victims. Robinson’s testimony was therefore both favorable and central to appellant’s defense of mistakenidentity. ThisCourt's pronouncementin People v. Cudjo (1993) 6 Cal.4th 585, 611, that the rights to present a defense can be infringed only by generalrules of evidence, and nota trial court's misapplication of the evidentiary rules, finds no support in United States Supreme Court precedent, the principles of constitutional law, 66 or logic. in Cudjo, this Court rested its conclusion that the trial court's erroneous exclusion of an alleged alternative perpetrator's jailhouse confession, which was admissible underthe declaration-against-interest exception to the hearsayrule, did not violate the defendant's constitutional rights to present a defense on the premisethat a trial court's misapplication of the rules of evidence to exclude crucial defense evidence does not implicate those constitutional rights. (Id. at pp. 604-612.) That premiseis fundamentally flawed. | The United States Supreme Court has neverrestricted the rights to present a defense to cases in which an evidentiary rule, rather than a trial court's application of the rule, was the source of the exclusion of crucial defense evidence. Although in several cases in which the United States Supreme Court has foundinfringements of the rights to a defense, an applicable evidentiary rule facially foreclosed the admission of defense evidence (see Rockv. Arkansas, supra, 483 U.S. at pp. 61-62; Green v. Georgia, supra, 442 U.S. at p. 97; Chambers v. Mississippi, supra, 410 U.S. at pp. 302-303; Washington v. Texas, supra, 388 U.S. at pp. 22-23), the United States Supreme Court has found such constitutional violations where the exclusion of defense evidence wasnot foreordained by a codified evidentiary rule. (See Holmes v. South Carolina, supra, 126 S. Ct. at pp. 1733-135; Crane v. Kentucky, supra, 476U.S. at pp. 689-691.) The United States Supreme Court has neverhinted, let alone held, that the exclusion of crucial, exculpatory defense evidenceis constitutionally permissible wheneverit is due to the trial court's application or misapplication of an evidentiary rule. To the contrary, the United States Supreme 67 Court has concludedthatit is immaterial whethera trial court's exclusion of defense evidence wasconsistentwith state law, becausethetrial court's ruling had the effect of a state-law rule precluding the defendantfrom introducing evidence. (See Skipperv. South Carolina (1986) 476 U.S.1, 7.) Furthermore, this Court's distinction between whetherthe rules of evidence ora trial court's misapplication of the rules of evidence is the source of the exclusion of defense evidence lacks support in the principles of constitutional law. The identity of the state actor infringing somebody's constitutional rights is not material. (See Yick Wo v. Hopkins (1886) 118 U.S. 356, 373-374 [holding discriminatory application of a law, in addition to law that discriminates on its face, may violate equal protection clause].) The United States Supreme Court has long held that a state officer, as well as a statute, may violate a person's rights under the due processclauseof the Fourteenth Amendment. (See Saunders v. Shaw (1917) 244 U.S. 317, 320; Home Teleph. & Teleg. Co. v. Los Angeles (1913) 227 U. S. 278, 287-288.) In the context of an equal protection claim, the United States Supreme Court recently reiterated that a person's constitutional rights are violated regardless of whether the express terms of a statute or improper execution of a law caused the discrimination. (See Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564.) As stated above, the United States Supreme Court has explained that a state court's evidentiary ruling, evenif idiosyncratic or inconsistentwith state law, has the effect of a state-law rule. (See Skipper v. South Carolina, supra, 476 U.S.at p. 7.) It:matterslittle to appellantthatthe trial court, rather than the framers of the Evidence Code, wasresponsible for barring powerful exculpatory evidence 68 central to his defense. Regardless of whether the Legislature or the trial court primarily caused the exclusion of evidence, appellant was hamstrung from presenting his defense. Furthermore,insulating a trial court's erroneous evidentiary rulings, but not a trial court's rulings correctly made underthe Evidence Code,from constitutional scrutiny makeslittle sense. A state has a far greater interest in maintaining thevitality ofits evidentiary rules than in immunizing a trial court's erroneousruling from being deemedfederal constitutional error. Principles of federalism require that greater deference be given to a law enacted by a state legislature than to a state trial court's ruling that violates state law. This Court's rationale in People v. Cudjo, supra, 6 Cal.4th at p. 611, was not premised on a distinction without a difference;it was based on a distinction for which the difference undercut the distinction. Accordingly, this Court should reject its pronouncement in Cudjo and hold thatthe trial court's rulings excluding the proffered evidence infringed appellant's Sixth and Fourteenth Amendment and article I, section 7 and 15 rights to elicit testimony from defense witnesses and to present a complete defense. E. The Erroneous Exclusion of Robinson’s Testimony Also Deprived Appellant of His Rights Underthe Fifth, Eighth And Fourteenth Amendments to a Fair Trial and Reliable Guilt and Penalty Determinations As argued above, the exclusion of Robinson's testimony impededtheintegrity of the adversarial process by preventing the jury from considering reliable, potent evidence that was central to appellant's defense. Without this evidence appellant could not rebut the prosecution’s allegation that appellant was an active Rolling 20s gang memberandas such, had a motive to kill membersoftherival 69 East Side Longos gang. Exclusion of Robinson’s testimonythusleft the jury with a distorted picture of appellant, and prevented them from considering evidence that would have caused them to have reasonable doubt abouthis guilt. The erroneous exclusion of Robinson’s testimony thus not only violated appellant’s Sixth and Fourteenth Amendmentright to present his defense as argued above,it also deprived him of his Fourteenth Amendmentright to due processof law and a fair trial. (Washington v. Texas, supra, 388 U.S.at p. 19; Chambersv. Mississippi, supra, 410 U.S. at p. 294; Crane v. Kentucky, supra, 476 U.S. at p. 690; Rock v. Arkansas, supra, 483 U.S. at p. 51, fn. 8.) This error further deprived appellant of his right under the Eighth and Fourteenth Amendments to a reliable determination of guilt and penalty. (Lockett v. Ohio (1978) 438 U.S. 586, 604 (qualitative difference between death and other penalties calls for greater reliability when death sentenceis imposed]; Beck v. Alabama (1980) 447 U.S. 625, 638 [applying Eighth Amendmentrequirement of reliability to guilt determination in capital case].) F. The Erroneous Exclusion of Robinson’s Testimony Was Extremely Prejudicial to Appellant’s Defense, and Under Both the Federal and State Harmless Error Tests Requires Reversal The prosecution hadlittle, if any evidence that appellant had a motive to shoot Mario Lopez or Jose Villa. There was no evidence of a precipitating gang-related incident, merely a general allegation of gangrivalry and incidents of violence between the Longos and Rolling 20s. There was also no evidencethat the victims knew appellant or that he had had any previous dealings and/or 70 encounters with them." In any event, the prosecution’s tenuous theory of motive was wholly dependenton being able to prove that appellant was an active gang memberat the time the shootings occurred. If appellant had already left the gang by that point in time, the prosecution’s theory wasutterly baseless. Being able to refute the prosecution's allegation that appellant was an active memberof the Rolling 20s when the murders took place, was therefore essential to appellant's defense, and appellant needed Robinson's testimony to dothat. If appellant had taken the standto testify that he left the gang prior to whenthe shootings occurred, his testimony would have appearedself-serving and therefore not very credible. Moreover,it is highly doubtful that any other gang members would be willing to testify that appellant was no longer “gang banging,” but evenif they were,their testimony could easily be perceived by the jury aslying to help a fellow gang member, and therefore discredited. Robinson was a witness whoostensibly had no personal stakein lying to help ‘*® Witness Leslie Rainey was asked about a notation in one of the police reports stating that appellant told Rainey that the week before the crime appellant was beaten up by “a Mexican.” Rainey testified that this was not true; that the only conversation he had with appellant was a phone conversation in which appellant asked Rainey to come with him to sell his car, because Rainey had a driver’s license. Rainey explained that during his lengthy interrogation at the police station, he wastold by one of the manydetectives and police officers whofiltered in and out of the interrogation room that “Mr. Jones said he told you about he hada fight with some Mexicans, and | said no | didn’t.” (15RT 3969-3970, emphasis added.) There was no other evidence presented regarding the alleged fight; i.e., whenit allegedly occurred; whatprecipitated the fight: what happened during the fight, and who the “Mexican” or “Mexicans” were. 71 appellant. He was older and more responsible, and he had a job running a gang prevention program, working collaboratively with the Long Beach Police Department. His testimony would therefore be inherently much morecredible that appellant's or any gang members. Had the jury heard Robinson’s testimony, they would more than likely have had a reasonable doubt as to whether appellant was actually an active gang memberatthe time the crimes were committed. If appellant was nof an active gang member any more, there was no credible evidence of motive, giving the jury more reasonto doubt the accuracy of the eyewitness identifications. Furthermore, notwithstanding the flimsiness of the prosecution’s theory of motive, the mere allegation of gang involvementcarries the risk of improper inferences of criminal disposition. This Court has recognized that evidence of a defendant’s gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. (People v. Carter (2003) 30 Cal.4th 1166, 1194.)'° 'S The reality of that risk was poignantly illustrated by the declaration of the foreperson of the deadlocked jury from thefirst trial, who stated in her declaration that the jury wasinitially deadlocked 10-2 for not guilty on several counts and 11-1 not guilty on another, but that several jurors changed their vote despite acknowledging that the evidenceof guilt was weak. The foreperson stated that one of the jurors who voted guilty, “indicated that the gang implications cast a darknessoverthe case andthatin order to find answers you mustlook into the darkness. He implied that you would neverfind the answers in the evidence but would need to look beyond.” (2CT 404, emphasis added.) Although the evidence of guilt in the retrial was no stronger, the jury found appellantguilty. 72 In any event,under these circumstances the State cannot prove beyond a reasonable doubtthat the trial court’s errorin excluding Robinson's testimony was harmless,as it must do pursuant to Chapman v. California. However, even assuming the error was notof constitutional proportions, and the harmlesserror standard set forth in People v. Watson applies, appellant still prevails becausethere is more than a reasonable probability that appellant would not have been convicted had Robinson been permitted to testify in this case. This Court must therefore reverse appellant's conviction and death sentence, so that appellant may beafforded a newtrial. KKKK 73 a lil. THE TRIAL COURT COMMITTED PREJUDICIAL ERRORIN PERMITTING THE PROSECUTION TO INTRODUCE A TAPE RECORDING OF APPELLANT’S PHONE CONVERSATIONWITH HIS BROTHER CONDUCTED WHILE APPELLANT WAS HOUSED IN THE LOS ANGELES COUNTY JAIL A. The Record Below Before opening statements in the secondtrial, the prosecution movedin limine for permission to play a tape recording for the jury of a phoneconversation between appellant and his older brother, Tony Frazier, on January 12, 1997, while appellant was housedin the Los Angeles County Jail. (14RT 3566; 17RT 4541.) The conversation took place two days after the conclusion of the initial preliminary hearing, in which the eyewitnesses had been unableto positively identify appellant as the man whoshot AngelVilla and Nery Hernandez. (14RT 3575.) The recorded phone conversation began with Tony expressing confusion as to why appellant remained in custodyafter the preliminary hearing. Appellant stated that he had no idea why he wasbeing accused of having committed these crimes. Tony asked him, “Well who are these people? Get the transcripts,” to which appellant responded, “Yeah,I'm fixin’ to tell my lawyers Man.” Appellant then said, “I ain’t do this.” Tony respondedthat he was still worried because “I know howthefolksis.” Appellant agreed, and then blurted out, “Nigger need that DAhit that’s who the nigger need hit.” (8CTSupp.IV 512-513, emphasis added.) The conversation next shifted to a discussion of Tony’s parole status. Tommytold appellant that he was supposedto visit a psychiatrist as 74 a parole condition, but he did not wantto take the pills that had been prescribed for him. Appellant expressed concern about Tony receiving a parole violation, following which Tony mentioned having foundtwopistols “in the garage here,” and giving them to an individual named “Troub.” (3CTSupp.!V 514.) Appellant admonished Tony that he should not be discussing such things over the phone, because “they got mygirl’s phone tapped.” (/bid.) The prosecutor arguedthat the statements made by appellant and Tony during the phone conversation were admissible as admissions and statements ofa co-conspirator (14RT 3576),*° and were“ highly relevant as to three areas concerning consciousnessof guilt: disposing or hiding evidence, witness intimidation [and] murdering a district attorney as well.” (14 RT 3581-3582.) Appellant and co-defendant Sherman together opposed introduction of the tape evidence on several grounds. They individually and jointly argued that the statements madein the recording wereirrelevant to the question of their guilt or innocence of the crimes charged. Counsel for Sherman pointed out that herclient wasin custody in Modesto at the time and therefore could not possibly have been the person to whom Tonygavethe twopistols. (14RT 3569, 3579.) She subsequently noted that witnesses had referred to Sherman specifically as“Baby Troub,” not “Troub”or“Li'l Troub” (15CT 3859-3860), which was corroborated by testimony. (16RT 4175.) They further argued that even assuming the conversation 0 Tony Frazier had not been, and never was, charged as a co-conspirator. 75 might have some probative value, the latter would be far outweighed by the prejudice engendered by the recording’s admission, and therefore it should be excluded under Evidence Codesection 352. In opposing the tape’s admission, appellant’s counsel argued: The people do not have the evidence to get a conviction in this case. So whatdo they do,they find a tape thatis so farfetched saying, ‘I found some pistols and gaveit (sic) to someone. We can’t allow them to make up evidence. Make the people prove the case. We can't let them make stuff up. This is remote and| strongly object. (14RT 3574.) In addition, appellant and Sherman objected on the grounds that the recorded statements constituted inadmissible hearsay. They also objected to the recordingitself on the groundsthat it was so poorin quality to be unintelligible, and further challenged the accuracyof a transcript of the recorded conversation prepared by the District Attorney’s Office and objectedtoits useby the jury while listening to the tape. (14RT 3567-3574.) Thetrial court ruled that the recording could be played for the jury (14RT 3586), and that copies of the transcript could be handed to the jurors to read while theylistened to the tape, but that the transcript would not be admitted into evidence. (/bid.) The trial court did not address the specific objections raised bythe defense, and instead ruled summarily. The prosecutor referenced the taped conversation in his opening statement (14RT 3609-3611), and subsequently played the tape for the jury. (15RT 3897.) The jurors were given a transcript interlineated with the court’s own corrections, to help them better 76 understand what wasbeing said on the tape. (15RT 3889.) The court instructed the jury that the transcript was merely an “aid,” and wasnot evidence;that the jury was to use its “own interpretation [of what wasbeing said on the tape] as the evidence.” (15RT 3895- 3896). After the tape was played, the defense called Tony Frazierto explain the statements he made during the phone conversation. (17RT 4540.) Tony explained that he had been excluded from the courtroom during the preliminary hearing on January 10, 1997, but had beentold that the witnesses had pointed out some other guy and did not identify appellant. He therefore wanted to read the transcript in an effort to figure out why appellant had not been released. (17RT 4542-4543.) Based upon his own experience with the criminal justice system, Tony believed that appellant would be provided with a transcript from which the names of the witnesses would be redacted. (17RT 4543, 4551.) Moreover, Tony had no intention to “do anything to anybody anyway,that ain’t going to help my brother.” (17RT4543.) Tony further explained that he was released from prison December4", 1996, and would be on parole for three years. (/bid.) He had been placed on “high risk” parole, which meantthat his parole officer was coming to his house twice a week, and was authorized to conduct a search of the house andin any place to which Tony had access. While getting ready for a garage sale he found two old revolvers. Despite the fact the guns no longer worked, he wasforbidden from having them on the premises. He therefore gave the two gunsto his neighbor. (17RT 4544.) Tony testified that he had been worried about what would V7 ~ happento his brother, having himself dealt with the Long Beach courts since the age of 11 or 12. Although appellant told Tony he should not worry because appellant had a good lawyer, Tony was neverthelessafraid that if appellant was going to be prosecuted without evidence,“they were going totry to railroad him, if not try to kill him inside there.” For this reason Tonytold appellant, “Man,I’m worried aboutit, Man. { know how folks is.” (17RT 4545-4546.) With respect to appellant's comment regarding the district attorney, Tony explained that appellant was angry with the D.A.for not allowing him to be releasedafter the preliminary hearing. He testified, “you know, people say things in the heat of the moment whenthey mad, when they upset. How he gonna hit somebody,is he gonnathrow a rock at them?” (17RT 4546-4547.) Tony’s wife, Darlene Frazier, testified next and corroborated _ her husband’s testimony regarding the two guns. Shestated that the guns had belongedto her former boyfriend and had beenin her garage since 1993. (18RT 4576-4577.) The guns were storedin a dresser. (18RT 4585.) While she and Tony were cleaning out her garagein preparation for a garage sale, she discovered the guns were missing from the dresser. (/bid.) Darlene described the guns as small revolvers that were in poor condition. One gun had parts missing and the other one wascorroded andrusty. (18RT 4588- 4590.) Tony subsequently told Darlene that he had found the guns and given them away to someone. (18RT 4592-4593.) The prosecutor argued to the jury that the taped conversation providedsignificant evidence of appellant’s guilt. He arguedthatit (1) explained what appellant had done with the missing murder weapon;(2) revealed appellant's intent to intimidate the 78 eyewitnessesto deter them from testifying against him; and (3) revealed his intent have the prior prosecutor murdered in order to prevent the case from going forward. In his opening argument, he stated, as follows: Insofar as the People’s evidence. . ., one particularly significant, compelling thing is People’s [Exhibit] 17. There are a numberof significant aspectsto it. I'm not going to go throughall those now,butit's important for a couple of reasons. Numberone,listen to the defendant, to his tone, to his demeanor, to how he deals with this. Because you had sometestimony about how upset he was and abouthis attitude. Listen to him and how he comes acrossthere. Listen to the language and the context in which the statements are being made because there's some real important things here. You have a conscious attempt. That is, a reference to guns,to pistols, to hiding those things. There is a statement made by Mr. Frazier, the person on the otherline, that he got these guns from Troub. We know whoTroubis. Troub is the co-defendant seated at the Counseltable. He says, "I got the guns,” and immediately at that point defendant Jonessays, hey, hey, wait a minute. My girlfriend's phoneis tapped or might be tapped. Better be careful what you're saying. Now,the significance of that, of course, is we learned about what happens when thesecrimes take place. They do them repeatedly so there are techniques which are employed to avoid detection, to avoid the ability to have them caught and prosecuted. One of them is wearing layered clothing to be able to change their appearanceshortly there after. One of those thingsis to make sure that a gun goes a different direction, thatit's hidden in someotherlocation. Of course, we have shell casings here, but a gunis not 19 found. There's warrants executed and that gun is never located. And that's for a reason. Whatyou have,of course,is the defendant, whois in custody — and that tape,| believe, is made on January the 12th, some month after the incident — who wantsto be sure that whereverit went, that that gunis not located so the efforts have to be made by the people on his behalf outside. And what we hearaboutis that those guns were given to Troub. And whois Troub? Troubis the co-defendant whois herein court. Also, on that tape we have a reference to the very sort of intimidation that we've been talking about here. The conversation with his brother, Mr. Frazier, is: well, they pointed the other guy out, referring to Maria Jaramillo identifying Melvin Sherman,but they let him go and why did they do that? And you have the questioning from Mr. Frazier, essentially saying, well, who are these people? Who are they? Now, there's two ladies and a dude, you know. Well who are they? Get the transcript. Now, you remember when | asked him questions,it was, nah, nah,| didn't care who they were. | just wanted to know whatthey had said. That's what | was interested in. That's not what he's asking. Listen to the tape. Listen to the conversation going back and forth. He wants to know who these people are because they were at that time — or, at least, at the time of the shootings — right there in the neighborhood. And that purposeisn't so he can conductinterviews. It's not so he can do investigation. It's not so he can resolve in this own mind what the evidenceis. It's for a specific purpose. It's to find those people and 80 to let them know that the Rolling 20's know who they are. Finally, of course, the defendant's mindsetis truly revealed whenhetalks about what he needs. And he refers to himself in the third person, but he says that essentially what he needsis for the District Attorneyto be hit, that that's what he really needs. Now, whenhis brothertestified, Mr. Frazier, he's being brought in fora reason. He's got to put some spin on these things becausethere it is on tape. You hear the defendant. You hear Mr. Frazier talking. And he's got to somehow rationalize, well, you Know, okay, he said that, but what does hit mean? Hit could mean throwing a rock at him or something. Well, we knowit's nonsense. A hit is a term — it's not — we don't need a gang expert to tell us what"hit"is. Anyone whohasexisted in this country and seen television, movies, or anything of the sort in the last twenty orthirty years Knows what a hit means. Hit meansto kill someone. He says, well, he was just angry when hesaid that. Listen to him. Listen to the whole conversation and| think what you're goingto find is thatit's essentially a very — an astoundingly casual and cavalier demeanor aboutall these things, abouthim beinginjail facing these murder charges, about the wholesituation. That's very cavalier. Mr. Frazier is an interesting witness, though, because he — he's got to explain a couple of things. He's gotto talk about these guns.It's there in the tape and the nameTroubis there. So what does he say? Well, okay, | had just gotten out of prison. | came back on the 4th. And you kind of have to compare whathe says to what Miss Frazier says for the distinctions because they both 81 have somedifferent recollections about time, but | was there for a while and then it was time to have a garage sale. And, essentially, we have the picture of the two of them looking through the garage, combing through things. - And we have Miss Frazier apparently finding the guns missing from the dresser where she's put them, but not inquiring of him while he's there looking through, then looking in the jacket where she had them before, still missing but not inquiring of him. Andthen independently of that we have Mr. Frazier finding the guns and giving them away. And he doesn't know whose gunsthey are, supposedly. The testimony from both are that he found out afterwards. But he gives them away. And whodoeshegive them to? He gives them to a neighbor, okay, who, amazingly enough,is named Troub. What a coincidence. And the funny thing aboutthat is the person wholives there who has beenthen previous resident, Miss Frazier, doesn't even know shehas a neighbor named Troub. That part apparently wasn't discussed before they testified. At any rate, some sort of rationalization has to be given and that's what's given. He's just angry when he's talking abouthitting the District Attorney. | just happenedto find these guns and appropo of nothing came up with this conversation, and then | gave them to this guy named Troub. There's a lot of guys named Troub. (19RT 4876-4881, emphasis added.) The prosecutor hammered these points further in his rebuttal to the defense closing arguments: Okay. The infamous tape. Now,this tape is not something that the people concocted This tapeis the 82 words of — I'm sorry. I'll bring that a little closer. | know it's hard to follow.?' As counsel and the court have said, the transcriptis not evidence. Thetape is. | am simply using this to help illustrate what I'm pointing out at this point. As counselsaid, there's a lot of language here. There's a lot of street language. Referencesto "cuz" and that sort of thing. I'm not suggesting that that is the issue here. The reason that we're talking about the tapeis becausethis tape gives us a numberof important issues in terms of the attitude of the defendant. One of the arguments that's madeis that the defendant is angry whenhedoesthis, that he's upset about what happened and he's blowing off steam. You've got to listen to him. Regardless of the words themselves, ___ listen to him with the demeanor: "Don't even worry about ~ it. Don't worry aboutit. It's not a problem." This is not a guy whois saying, my God. How can | be in this position? An innocent man wrongly accused there. He's not panicked there. "Don't even worry about." And you know the tape is important for another reason, becauseit's not a production that's being madefor you. He starts out talking on that tape. It's just a conversation with his brother Tony. So we have a very casual demeanor,andit's revealing. Okay. Now,as| said,thefirst issue is this is a gang case. I'm not waving that flag to cause to you gointo fits of hysteria, but it's an issue because the intimidation affects all aspects ofit. *! Although the record is silent regarding what the prosecutor wasreferring to, it would appearthat it was a blow-upof the tape transcript. 83 And remember what Tony Frazier was saying when he talks about why he wasasking for the transcripts. He said, they will blank it out. He says, whohad said something? Whois this person? A lady? Not whatdid they say, but who said it? Who are they? BecauseTonyis out there and Tony can go and Tony can find out and Tony can confront. Two ladies and a dude. But they aren't saying shit. And he goes throughall of that. But, rememberthat's the context in which that conversation starts. And then hetells what happenedin the prelim. He talks about evidenceat the prelim, that they had seen the glove and saw a blast, and they dropped the one murder and nowthey got me for the attempt and another murder. Doesn't make any sense. Okay. The conversation continues. They got him for one murder and an attempt. And then, well, who are these people? Getthe transcripts. Okay. Remember, when| talked to him he said, no, no. | just wanted to know what happened. | just wanted to know whatthey said. That's not what he's asking. Those are his words. Whoare those people? Get the transcripts. What's the point? Does he wantto see if he knows them? Does he wantto seeif they are a celebrity or something? He knows what neighborhoodthis happened in. Those are people whoare going to bein the neighborhood. He wants to know who these people are for a reason. He does not want those people to come forward. That's why he's askingfor the transcripts. Wecontinue further. Now,this is the point, remember, at which defendantis upset, he's angry that the District Attorneys have donethis horrible thing to him. They 84 twisted the evidence. "Don't even worry aboutit. Don't even worry aboutit." Listen to him as he'stalking. Is this an innocent man whois panicked aboutbeing put in this position? "Don't even worry aboutit." And that's what he says. Referring to himself in the third person, he needs the District Attorney hit. That's who he needshit. That was when Debra Cole-Hall was theDistrict Attorney onthis case. Whydoesan innocent mansay that? Is he blowing off steam? Listen to him. Listen to his voice there. Is he —is he angry about what's happened? No. He's talking about what he needs or what would help him out and help his case. Okay. And | knowI'm going to keep apologizing throughout, but | — honestly I'm downto the last half a page or page and a half here so we're very close. And, you know, underother circumstances | might cut it off, but this is too important, folks. It's too important. So please bear with me. Okay. The last point about the tape. And, again, you're going to have the tape. I'm going to ask youto listen to it and payclose attention, listen to it all you want becauseit becomesclearer as welisten to it and you also get a feel for the defendant. His voice, his demeanorduring the courseofthat. What does TonyFrazier tell us? Now, he says in his testimonyhere, | just mentioned out of the blue that | found these guns and gave them to the neighbor aproposof nothing. It had nothing to do with anything else. How doesit come up here? He's talking about,| gavelittle Troub — | gave him something — again, this not the evidence. It's what on the tape. And I 85 found two pistols in the garage. Becausethere is somethinginteresting that has happened. | mean, there is no explanation forit. No introduction for it. Whois he talking about, Troub? Melvin Sherman. We know whothatis. Now, he saysin his testimony here in court, hey,| just found those things. | gave them to my neighbor like so many so manyother people whose names happened to be Troub. Does the defendant go, "Whois Troub?" no. Nothing about that because he knows whoTroubis. He knowswhat the guns are. He knows whyhe gave them to him. That's whyit's significant. And . it's even moresignificant that all of a sudden the light goes on in the defendant's head: Now,wait a minute now. He doesn't know aboutthe wire tap on the County Jail phone,but a light goes on becausethis is critical. This is key. That's a murder weaponthat's out there. That's something that he does not wantthe police to find. That can only come backto his crime. So a light goes onin his head only then at that point, and he says, well, wait a minute. He thinks maybehisgirlfriend's phone might be tapped. The light goes on becauseit's a critical nature of what's being said there. We're talking about a murder weapon on a double murder. Hey, hey, easy, easy. Don't talk about that. That's why he realizes it and realizes it only at that moment. (20RT 5070-5075.) For the reasons stated below, admission of the recording 86 constituted prejudicial error requiring reversal. B. The Taped Phone Conversation WasIrrelevant and Should Not Have Been Played for the Jury and Admitted into Evidence It is extremely well-settled that only relevant evidenceis admissible. (Evidence Code § 350; People v. Heard (2003) 31 Cal.4th 946, 972; People v. Crittenden (1994) 9 Cal.4th 83, 132: People v. Garceau (1993) 6 Cal.4th 140, 176-177; People v. Babbitt (1988) 45 Cal.3d 660, 681.) A trial court lacks discretion to admit irrelevant evidence. (People v. Heard, supra, 31 Cal.4th at p. 973; People v. Crittenden, supra, 9 Cal.4th at p. 132.) Relevant evidence is defined in Evidence Code section 210 as evidence "having any tendencyin reason to prove or disprove any disputed fact that is of consequenceto the determination of the action." The test of relevance is whether the evidence tends "logically, naturally and by reasonable inference’ to establish material facts such asidentity, intent or motive." (People v. Heard, supra, 31 Cal.4th at p. 973, citation omitted.) A trial court’s determination of relevanceis reviewed for abuseof discretion. (People v. Davis (2009) 456 Cal.4th 539, 603.) As noted above, the prosecutor argued that the recorded conversation was relevant to prove appellant’s consciousnessof guilt, howevercareful analysis of the statements made during that conversation reveals that none of them — neither individually nor collectively-- actually had any tendency whatsoever to prove _ consciousnessof guilt on appellant’s part. In fact, as noted above, appellant expressly stated that he did not commit the crime and did not know why he wasbeing held. (3CT Supp.IV 513.) There is also 87 no indication from anything said either by appellant or Tony, that appellant (or anyone else) wanted to find out who the witnesses wereto try to intimidate them from testifying against him. What appellant actually said was that he wanted his /awyers to “go out there and investigate.” (Ibid, emphasis added.) Furthermore, when appellant's remark that the D.A. should be “hit,” is viewed within the context of the entire conversation, it shows that appellant was angry that he was being charged with a crime he did not commit. Not one statement in the entire conversation supports any inference that he actually soughtto kill the DA to prevent her from prosecuting him for a crime he in fact committed. Neither was there any other evidence presented during the trial to support suchaninference. Finally, by the time Tony stated that he “found twopistols in the garage here,” and “gave them to Troub,” he and appellant were no longer discussing appellant’s case, but were instead talking about Tony’s parole status. (3CT Supp. IV 514.) Moreover, nothing said 22 The followingis the relevant excerpt as it was transcribed: T: Tomorrow I’m off, but | have to go back,| have to go to see the psyche tomorrowatthe parole office. KJ: The psychefor what? T: You know,that’s got to be a condition of parole is seeing a psyche. KJ: (Unknown) T: Uhh? KJ: That funky place? 88 by either Tony or appellant even remotely suggested that the two pistols Tony told appellant he found in the garage belonged to appellant, or that the “Troub” he had given them to was anyone related to appellant’s case. In fact, the evidence disclosed Sherman wasin custody during the pertinent time period and that his nickname was“Baby Troub,” not “Troub”or “Li'l Troub.” No reasonable inference could therefore be drawnthateither of the guns Tonywastalking about was used to shootthe victims herein. The theories upon which the prosecutorrelied to support his T: Yeah. But see| fixin’ to take thesepills that they’ve beentrying to push on me back up here. Cuz | ain’t taking the shit. So | don’t know what they are gonna do. KJ: Are you crazy? T: No | ain't crazy. KJ: Oh...Well you should letit roll, it might get you... T: No | ain’tfittin’ to play nothin’. K: Yeah. T: Yeah | gavelittle Troub. KJ: Yeah. T: Yeah | give him someand| found twopistols in the garage here. KJ: Yeah. Don’t be talkin’ over the phone cuz, they've got mygirl's phonetapped. T: But anyway | gave them to Troub. (Ibid.) 89 claim of relevance lacked any evidentiary basis and rested entirely upon unfounded speculation. By introducing the taped conversation, the prosecutor sought to have the jury infer appellant’s guilt of the murders, by speculating (1) that appellant’s brother was helping him concealor dispose of the murder weapon and (2) that appellant was attempting to avoid prosecution for his crimes by intimidating the witnessesfrom testifying against him, and having the prosecutor killed. “Speculation is not evidence” (People v. Waidlaw (2000) 22 Cal.4th 690, 735), andit is error to admit evidence whose relevance can only be established on the basis of speculation. (People v. Hamilton (1986) 41 Cal.3d 408, 426, overruled on other grounds.) As explained in People v. Louie (1984) 158 CalApp.3d Supp.28: ‘Evidenceis irrelevantif it has a tendency to prove or disprove a disputed fact of consequenceonly by reason of drawing speculative or conjectural inferences from such evidence. The concept of a “tendency in reason” to prove a disputed fact required by Evid C §210, necessarily meansthat the deduction or inference to be drawn from the proffered evidence to the existence or nonexistence of a disputed fact is a reasonable inference. /f the inference of the existence or nonexistence of a disputed fact which is to be drawn from proffered evidence is based on speculation,it cannot be considered relevant evidence. /f proffered evidence can cause the trier of fact only to speculate from such evidenceasto the existence or nonexistence of a disputed fact, such evidenceis irrelevant and inadmissible, since it does not comewithin the definition of “relevant evidence”set forth in Evid C §210.’ | (Id. at p.47 (emphasis in original) [quoting from Jefferson,1 California Evidence, section 21.3, p. 502].) Accordingly, the recorded conversation wasirrelevant and 90 inadmissible, and the trial court abusedits discretion in allowingits admission into evidence over appellant’s objection. C. At a Minimum,the Trial Court Should Have Excluded the Tape Pursuant to Evidence Code Section 352, Because Any Probative Value It Might Arguably Have Had Was Far OutweighedbyIts Prejudicial impact Evidence Code section 352, subdivision (b) provides that the court in its discretion may exclude evidenceif its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice, of confusing the issues or misleading the jury. "Evidenceis probativeif it is material, relevant and necessary. ‘[H]ow much probative value proffered evidence has depends uponthe extent to whichit tends to prove an issue bylogic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree of materiality), and the necessity of proving the issue by meansof this particular piece of evidence (degree of necessity)." (People v. Thompson, supra, 27 Cal.3d at p. 318, fn. 20, citation omitted.) "Prejudice for purpose of section 352 meansevidencethat tends to evoke an emotional bias against the defendant... ." (People v. Crew (2003) 31 Cal.4th 822, 842) or that may be misused bythe jury. (People v. Filson (1994) 22 Cal.App. 4th 1841, 1851, overruled on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 448-450.) A court's failure to exclude evidence underthis section is reviewed for abuse ofdiscretion. (People v. Cox (2003) 30 Cal.4th 916, 955; People v. Kipp (2001) 26 Cal.4th 1100, 1121.) As demonstrated above,inferences the jury was askedto draw from the tape-recorded conversation regarding appellant’s guilt, 91 were purely speculative and lacked evidentiary support. The conversation therefore had no probative value. In spite of this, the tape played a centralrole in the prosecution’s case against appellant in the retrial. tn his closing argumentsto the jury, the prosecutor emphasizedthe significance of this evidence at length, and urged the jury to infer that statements made during the conversation constituted admissions of guilt. (See prosecutor's arguments quotedin full at 79-86, ante.) For example, the prosecutor asserted three separate times that “Troub is the co-defendant [Sherman],” and argued that appellant’s brother helped appellant conceal the murder weaponbygivingit to “Troub.” (19RT 4877-4878, 4881; 20RT 5073- 5075.) The prosecutor also argued appellant andhis brother were conspiringto intimidate, and thereby silence the witnesses against him. (149RT 4879; 2ORT 5070-5072.) Finally, he argued that appellant was seeking to have the Deputy D.A. assigned to prosecute him assassinatedin order to “help his case.” (19RT 4879- 4880; 20RT 5072.) | Without a doubt, the tape recording, together with the prosecutor’s argument emphasizingits significance, greatly influenced the jury’s verdict. It diverted the jury’s attention from the weaknessof the prosecution’s case — the previous jury without having heard the tape votedinitially voted ten to two for acquittal-- and encouragedthe jury to draw conclusions regarding appellant's guilt and his bad character, that were unsupported by any actual evidence. The tape and argumentnot only unfairly misled and inflamedthe jury, it also confused the issues. Appellant wasontrial for murder and attempted murder, not threatening witnesses or prosecutors or being a gang member,yet the prosecutor used the 92 tape to inject theseissues into his case. For example,in his rebuttal argument, he stated as follows: Now,as| said, thefirst issue is this is a gang case. I’m not waiving that flag to cause you to gointo fits of hysteria, but it’s an issue becausetheintimidation affects all aspects ofit.” (20RT 5070.) Under the circumstances,the trial court should have excluded the tape under Evidence Code section 352, and it abusedits discretion whenit failed to do so. D. |The Tape Recording and Transcript Should Also Have Been Excluded Because the Tape Recording Was Unintelligible. As noted above, appellant and Sherman objected to both the tape and the transcript prepared bythe district attorney's office on the groundsthat the tape was unintelligible, making it impossible to tell whether the transcript was accurate. They argued that the tape should therefore be excluded under Evidence Code section 352. (14RT 3569, 3580.) There was no dispute that it was difficult to make out what was being said on the tape (14RT 3568-3569, 3571-3572, 3576-3578, 3580, 3582-3584), and that no effort had been made to enhancethe quality of the tape to makeit moreintelligible. (14RT 3583.) As Sherman’s attorney summedit up, “| would say thatif three or four different transcribers wereto listen to this tape, they would come up with different versions than were said.” (14RT 3571.) With respect to the section of the transcript dealing with the pistols — the most critical part of the conversation for the prosecution’s case -- she stated: 93 | think that someliberty has been taken as to the words on page 4 betweenlines 22 and 26. There is some clarity to some of the words, but a lot of the words are just missing. / think it is speculation as to what actually is being said. | would ask the court not to permit this being used for any reason. (14RT 3580, emphasis added,referring to 3CTSupp.!V 514.) The prosecutor concededthatit was difficult to understand what wasbeing said on the tape (14RT 3577-3578), and in reference to the tape’s ambiguities, stated, “there is always going to be a subjective element and there maybe different twists on whatever wordsarein there.” (15RT 3853.) Before the tape was playedfor the jury, the court listened to the tape and, byinterlineation, made corrections to the transcript. (15RT 3850.) Overfurther defense objection (15RT 3852) the “corrected” transcript was distributed to the jurors to read as they listened to the tape. (15RT 3897.) (1) The Tape Was Not Sufficiently Intelligible To Be Relevant Without Creating an Inference of Speculation To be admissible, tape recordings need.not be completely intelligible for the entire conversation as long as enoughisintelligible to be relevant without creating an inference of speculation or unfairness. (People v. Demery (1980) 104 Cal.App.3d548, 559.) In the instant case the very statements the prosecutor claimed were incriminating; i.e., those concerning the pistols that the prosecutor argued were the murder weapons,wereinsufficiently audibleto beintelligible. For this reason, the instant case is distinguishable from cases such as People v. Siripongs (1988) 45 Cal.3d 548, 574, where this Court found that in spite of unintelligible 94 portions, tape recordings of the defendant’s phone conversations clearly demonstrated his efforts to remove incriminating evidence from his home. (Also compare People v. Polk (1996) 47 Cal App. 4" 944, 955 [clearly audible portions of tape were incriminating]; and People v. Von Villas (1992) 11 Cal.App.4th 175, 225-226 [Although portions of recordings were unintelligible, intelligible portions were probative and testimony of witness who wasparty to conversations filled in gaps with respect to inaudible portions].) Appellant has argued abovethat no incriminating statements concerning the murders were made during the phone conversation, and that the recording wasirrelevant and should not have been played for the jury and admitted into evidence. However, evenif incriminating statements were in fact made during that conversation, because of the poor quality of the tape recording, the determination of what wasactually said by appellant and his brother during the taped conversation was dependent upon “subjective” interpretation. Consequently, the tape wasnot“sufficiently intelligible to be relevant without creating an inference of speculation” (People v. Demery, supra, 104 Cal.App.3d at p. 559), and should accordingly have been excluded. (2) The Trial Court's Error In Allowing It To Be Played Was Compoundedby Permitting Use by the Jury of the Contested Transcript as a Guide While Listening To the Tape Thetrial court further erred by permitting the jurors to use the transcript, the accuracy of which was disputed, as a guide while listening to the tape asit was being played in the courtroom. Giving jurors a transcript to read as they listened to a tape recording was held to be an abuse of discretion under circumstancessimilar to 95 those herein in United States v. Robinson (6" Cir. 1983) 707 F.2d 872, 877. In Robinson, the prosecution was permitted to play tape recordingsof conversations between the defendants and an undercover agent. Critical portions of the tapes were inaudible, howeverthe trial judge allowed the jury to use prosecution-prepared transcripts of the recordings as a “guide” while listening to the tapes as they were played in the courtroom. The court held that thetrial court had abusedits discretion whenit allowed the tapes to be played forthe jury in this manner. After listening to the tapes, the court of appeals found that severalof the tapes were so inaudible they could not reliably be transcribed unless the transcriber had an independentrecollection of the conversations. (/b/d.) Asin the instant case (14RT 3577-3578), the prosecutionin Robinson argued that the appellate court “should give deference to the fact that the transcripts [were] mere aids which were not introduced into evidence.” (/d. at p. 878.) Howeverthe appellate court rejected that argument: This Court is keenly aware that there is a distinct difference between evidence and anaid usedto assist the jury in understanding the evidence. However, the distinction becomes nebulous where,as here, the evidenceis unintelligible. The practical effect of using an aid to comprehend unintelligible matter is that the aid becomesthe evidence. (!bid.) The.same conclusion applies to the use of the transcript given to the jury in the instant case to read while listening to the tape. The use of a transcript has been upheld in cases which are factually distinguishable from the instant case. For example,in People v. Miley (1984) 158 Cal.App.3d 25, 36-37, the defendant 96 argued on appealthat transcripts of taped phone conversations between the defendant and the manhehiredto kill his wife were speculative, because the tapes when played werepartially unintelligible. The court of appeal held there was no abuseof discretion by the trial court in allowing the jury to “read along” while listening to the tapes, because (1) the jury received notranscription of the unintelligible portions of the tapes(those portions wereleft blank) and (2) the intelligible portions were accurately transcribed and incriminated the defendant by “memoriali[zing] appellant’s cold- bloodedsolicitation of the murderof his wife and, if necessary, her daughters.” (/d. at p. 37.) In People v. Brown (1990) 275 Cal.App.3d 585, 598-599,the court of appeal upheld the use ofa transcript of a surreptitiously taped conversation between the two defendants, despite the fact that there was some dispute as to its accuracy. However,in that case, unlike the instant one, the parties to the tape-recorded conversation acknowledgedthat the transcript was a reasonable translation of what they said, and one of the parties admitted having made incriminating statements during the conversation. In contrast to Miley, the jury in the instant case received a disputed transcription of an unintelligible portion of the tape that the prosecution argued contained appellant’s admission ofguilt. Furthermore, unlike Brown, neither appellant nor his brother concededthat their conversation had been accurately transcribed, and there was no admission by appellant that he had admitted guilt during that conversation. Under these circumstances,not only wasit an abuseof discretion for the trial court to allow the tape to be played, but it was a further abuse of discretion to allow the jury to 97 use the disputed transcript as a “guide” while listeningtoit. E. Admission of the Tape and Useof the Transcript Violated Appellant’s Constitutional Rights The improper admission of the tape recording and useof the contested transcript violated standards of California law and denied appellant his right to due processof law underboth the state and federal constitutions. (U.S. CONST., 8" and 14" Amends.; CAL. CONST., Article |, §§ 7 and 15.) Thetrial court's erroneousruling admitting this evidence also denied appellant his state and federal constitutional rights to a fair trial and a reliable judgmentof death. (U.S. CONST., 6", 8" and 14" Amends.; CAL. CONST., Article I, §§ 7, 15 and 17; Estelle v. McGuire (1991) 502 U.S. 62, 72; Walters v. Maass (9" Cir. 1995) 45 F.3d 1355, 1357. The United States Supreme Court has recognized that due process can be violated if admission of evidence was “so inflammatory as to preventa fair trial.” (Duncan v. Henry (1995) 513 U.S. 364, 366 (per curiam).) Here, the jurors were allowedto considerthe irrelevant telephone conversation between appellant and his brother as proof of appellant's guilt. Indeed, the tape recording featured prominently in the prosecution’s case, and the prosecutor arguedto the jury at length that it provided significant evidence of appellant’s guilt. In particular, the prosecutor unfairly exploited appellant's irrelevant, but highly inflammatory commentthat the D.A. needed to be “hit,” to bolster the testimony of witnesses whosecredibility was dubious, and to otherwise shore up his weak case against appellant by trying to show that appellant had a propensity for violence. As established above in subsection C ofthis argument, admissionof the 98 tape was extremelyprejudicial to appellant's case, becauseit effectively allowed the prosecutor to divert the jury’s attention from the weaknessof the prosecution's case, and encouragedthejury to draw conclusions regarding appellant’s guilt and his bad character, that were unsupported by any actual evidence and entirely speculative. In this regard, trial court’s erroneous admissionof the evidence lightened the prosecution’s burden of proof, and thereby violated the Due Process Clause of the Fourteenth Amendment, which “protects the accused against conviction except upon proof [by the State] beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (/n re Winship (1970) 397 U.S. 358, 364.) Furthermore, the inclusion of the irrelevant, inflammatory and overwhelmingly prejudicial tape recording effectively distorted the fact-finding process to such an extent that the resulting verdict could not possibly have possessedthereliability required by the Eighth Amendment. (Beck v. Alabama, supra, 447 U.S. at p. 638, fn.13; Woodsonv. North Carolina (1976) 428 U.S. 280, 335.) F. The Erroneous Admission of the Tape Recording and Transcript Was Highly Prejudicial and Requires Reversal Under Both Federal and State Standards The prosecution’s evidence establishing appellant’s identity as the shooter was confined to the identification testimony of two eyewitnesses, Maria Jaramillo and Nery Hernandez. While both witnessesidentified appellant as having been the shooter, the record in this case makesclear that they both wereinitially uncertain as to whether appellant was the man they saw. However, more than two years after the occurrenceof the crime, after repeated court 99 appearances and meetings with the investigating officers and, possibly the prosecutor himself, these witnesses had become more convinced theyidentified the right man. | Nevertheless, they were both impeached with prior inconsistent statements reflecting their uncertainty regarding the accuracyof their respective identifications. Thesituation herein is similar to that in People v. Cardenas (1982) 31 Cal.3d 897. In Cardenas,this Court reversed the defendant’s conviction of attempted murder and attempted robbery, because the prosecution had been permitted to introduce evidence of the defendant’s gang membership and drug addiction. The Court held that the evidence in question should have been excluded under Evidence Code section 352, on the groundsthatit had minimal probative value but created a substantial danger of undue prejudice. (/d. at pp. 904-907.) The Court further held that the errorin admitting the evidence wasprejudicial, requiring reversal under Peoplev. Watson, supra, 46 Cal.4th at p. 836. The Court noted that the only | incriminating evidence was eyewitness identification testimony, which, as in the instant case wasinconsistent, and that the prosecutor, being aware of the weaknessof that evidence, stressed the defendant’s gang membership and drug addiction in his closing argument. The Court according concluded that had the gang membership and drug addiction evidence not been introduced, there was a reasonable probability that the jury would not have voted to convict thedefendant. The Court’s comments concerning the eyewitnessidentification testimony apply equally to the instant case: Theonly incriminating evidence introduced by the prosecution against appellant was the identification testimony of eyewitnesses.[fn. omitted] Both this Court and the United States Supreme Court have recognized 100 that eyewitness identifications are often unreliable. United States v. Wade (1967) 388 U.S. 218, 228 [parallel citations omitted]; People v. Bustamante (1981) 30 Cal.3d 88, 98 [parallel citations omitted.] As the Supreme Court noted in Wade, ‘[t]he vagaries of eyewitnessidentification are well-known; tha annals of criminal law are rife with instances of mistaken identification. [fn. omitted] Mr. Justice Frankfurter once said: “Whatis the worth of identification testimony even when uncontradicted. The identification of strangersis proverbially untrustworthy.” [Citation.]’ Eyewitness identifications are especially unreliable where the witnessesidentify a memberof a race or ethnic group other than their own. (See, e.g., Note, Did your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification (1977) 29 Stan.L.Rev. 969, 982; Sobel, Eyewitness Identification: Legal and Practical Problems (2d ed. 1981) §9.7(b).) (Id. at p. 908.) The weaknessof the eyewitness identification testimony in the present caseis reflected by the outcomeofthefirsttrial, in which a numberof jurors were not convinced beyond a reasonable doubtthat appellant had beencorrectly identified as the shooter. Therefore, there can belittle doubt that the tape recording as interpreted and emphasized by the prosecutorin closing argument during the retrial, played a keyrole in the second jury’s guilt determination. Underthe circumstances, respondent cannot prove beyond a reasonable doubt that the court’s error in allowing the evidence to be introducedwas harmless. (Chapmanv. California, supra, 386 U.S. at p. .24) However, even understate law, appellant has shownthat there is a reasonable probability that he would not have been found guilty had the tape been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836.) Appellant’s conviction and death sentence must 101 therefore be reversed. kKkeRKK 102 * IV. APPELLANT’S CONVICTION OF CAPITAL MURDER MUST BE REVERSED BECAUSE CALIFORNIA’S MULTIPLE MURDER SPECIAL CIRCUMSTANCEIS UNCONSTITUTIONAL The multiple murder special circumstance must be overturned becauseit violates the Eighth and Fourteenth Amendments by encompassing an overly-broad class of persons with vastly different levels of culpability. "To pass constitutional muster, a capital sentencing scheme must ‘genuinely narrow the class of personseligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." (People v. Ledesma (2006) 39 Cal.4th 641, 725, quoting Zant v. Stephens (1983) 462 U.S. 862, 877; see also Lewis v. Jeffers (1990) 497 U.S. 764, 774; People v. Moon (2005) 37 Cal.4th 1, 44, quoting Furman v. Georgia (1972) 408 U.S. 238, 313 (conc. opn.of Stewart, J.) ["To avoid the Eighth Amendment's proscription against cruel and unusual punishment, a death penalty law mustprovide a ‘meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many casesin whichit is not'’].) Thus,in order to meet the demandsof the Eighth Amendment, a special circumstance that makes a defendanteligible for the death sentence under California law must "provide a rational basis for distinguishing between those murderers who deserveto be considered for the death penalty and those who do not." (People v. Green (1980) 27 Cal.3d 1, 61; see also Zant v. Stephens, supra, 462 U.S. at p. 879 [factors that make a defendant eligible for the death 103 penalty must "differentiate [his] case in an objective, evenhanded, and substantively rational way from the many . . . murder casesin which the death penalty may not be imposed’].) Stated differently, a special circumstance that makes a defendanteligible for the death penalty must be one that "permit[s] the sentencer to make a principled distinction between those who deserve the death penalty and those who do not." (Lewis v. Jeffers, supra, 497 U.S.at p. 776; see also Arave v. Creech (1993) 507 U.S. 463, 474.) California's multiple murder special circumstance, which applies in cases where the defendant has been convicted of one or more offenses of murderin the first or second degree (Pen. Code,§ 190.2, subd. (a)(3)), does not achieve the constitutional goal of distinguishing in any meaningful or principled way the few casesin which the death penalty may be imposed from the many cases in which it may not. In order to achieve this goal, a valid special circumstance must define a sub-class of persons of comparable culpability. "When juries are presented with a broad class, composed of persons of manydifferent levels of culpability, and are allowed to decide who among them deservesdeath, the possibility of aberrational decisionsastolife or death is too great." (United States v. Cheely (9th Cir. 1994) 36 F.3d 1439, 1445.) The multiple murder special circumstance in California fails to foreclose this prospect. The narrowing factor for the multiple murder special circumstanceis not the defendant's mental state, but the act which ‘was committed. Because deatheligibility is based entirely upon the fact that more than one murderin the first degree has been committed,this special circumstance encompassesa broad class of individual defendants who possesswildly disparate levels of 104 culpability. Thus, for instance, California's multiple murder special circumstance applies equally to a defendant who, motivated by racial hatred, deliberately kills several minority children in separate incidents, as well as to a defendant who,in the course of a robbery, accidentally kills one woman and her nine-week-old fetus, which the defendant did not know the womanwascarrying. (See, e.g., People v. Davis (1994) 7 Cal.4th 797, 810 [person responsible for death of eight-week-old fetus may be convicted of murder]; People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150 [intent to kill not required for the actual killer under the multiple murder special circumstance].) Under California's statutory scheme,one jury could sentencethe accidental killer to death, while another could spare the life of the defendant whodeliberately killed his victims based on their race. "The prospect of such ‘wanton and freakish’ death sentencing is intolerable under Furman and the casesfollowingit." (United States v. Cheely, supra, 36 F.3d at p. 1444.) In People v. Coddington (2000) 23 Cal.4th 529, 656, this Court rejected a constitutional challenge to the multiple murder special circumstanceby stating that "the United States Supreme Court recognized multiple murder as a narrowing factor in Lowenfield v. Phelps (1988) 484 U.S. 231, 246." The question presentedin Lowenfield, however, was whether an aggravating circumstance at the penalty-selection stage of a capitaltrial may duplicate an element of the capital crime that, under Louisiana law, was the equivalentof a special circumstance creating death eligibility (namely, murder with intent to kill or inflict great bodily harm on more than one person). The United States Supreme Court held that such duplication was constitutionally permissible because the jury's guilt verdict, which 105 effectively amounted to a special circumstancefinding that the defendant had killed more than one person with the intent to kill or inflict great bodily harm, accomplished the narrowing required by the Eighth Amendment. Thefact that the sentencing jury was additionally required to find the existence of an aggravating circumstance before imposing a death sentence wasnotpart of the constitutionally-required narrowing process,and therefore the fact that the aggravating circumstance duplicated an elementof the crime that essentially amountedto aneligibility factor did not make the defendant's death sentence unconstitutional. (Lowenfield v. Phelps, supra, 484 U.S. at p. 246.) The high court did not decide the question of whether Louisiana's equivalent to the multiple murder special circumstance adequately narrowed the class of persons eligible for the death penalty, as that issue wasneither raised by the defendant nor discussed by the Court. Moreover, even assuming that the high court's opinion in Lowenfield could be read to hold that Louisiana's statutory equivalent of the multiple murder special circumstance was a proper narrowing factor, the Louisiana statute differs from the California special circumstance by makingeligible for the death penalty a distinct sub-class of persons of comparable culpability — specifically, those murderers who act with the "specific intent to kill or to inflict great bodily harm upon more than one person." (Lowenfield v. Phelps, supra, 484 U.S. at p. 242, citing La. Rev. Stat. Ann., § 14:30(A), subd. (3).). As described in the above example of the racially-motivated killer of several children and the accidentalkiller of a womanand her unknownfetus, the California multiple murder special circumstance encompassesan overly-broad classthatis 106 composedof persons of immenselydifferent levels of culpability, and allows the jurors to decide who amongthis vast class deserves death, thereby creating the possibility of aberrationallife-or-death decisions. Thus, regardless of whether the Louisiana statute in Lowenfield sufficiently narrowed the class of murderers eligible for the death penalty by reasonably justifying the imposition of a more severe sentence on those who commit certain types of multiple murders, the California multiple murder special does not. In People v. Sapp (2004) 31 Cal.4th 240, 287, this Court again upheld the constitutionality of the multiple murder special circumstance,this time stating that the special circumstance “narrow[s] the class of death-eligible first degree murderers to those who havekilled and killed again." However,this classification - permits death eligibility for an overly-broad class of defendants whosecrimesare of vastly disparate levels of culpability, without providing any rational basis for distinguishing between those defendants who possesslevels of culpability that make them deserving of the death penalty and those whodo not. In short, California's multiple murder special circumstancefails to differentiate in an objective and rational manner those murderers who deserveto be considered for the death penalty and those who do not, and thereby creates the type of "wanton and freakish" death sentencing foundintolerable in Furman v. Georgia, supra, 408 U.S. 238, and the casesfollowing it. This Court should reexamineits prior holdings to the contrary, declare this special circumstance unconstitutional, and reverse appellant's conviction of capital murder. KeKKK 107 V. THE TRIAL COURT’S IMPROPER EXCLUSION FOR CAUSE OF PROSPECTIVE JUROR 3389 REQUIRES REVERSAL OF APPELLANT’S DEATH SENTENCE A. Summary of Argument Applying an incorrect legal standard, the trial court erroneously granted the prosecution’s challenge for cause of Prospective Juror 3389 (“Juror 3389") during the death qualification portion of voir dire. Aswill be spelled out more fully below, Juror 3399's questionnaire and voir dire responses established that he would favor a sentence oflife without parole, but that he felt that the death penalty would be warranted in a case where there wasanissue of future dangerousness. Thetrial court granted the prosecution's challenge for cause on the groundsthat Juror 3389 “has a definite bias in favor of . . . life without parole,” and “would not fairly consider both options in this caseif given the opportunity to do so.” (13RT 3246.) A penalty phase juroris not disqualified merely because he or she hasa preference for one penalty over the other (People v.McDerrmott (2002) 28 Cal.4th946, 980), or because his or her personal beliefs about the death penalty would lead him or her“to impose a higher threshold before concluding that the death penalty is appropriate or because such views would makeit very difficult to impose the death penalty.” (People v. Stewart (2004) 33 Cal.4th 425, 447.) A juror may only be excludedif his or her feelings about the death penalty would “prevent or substantially impairhis [or her] performanceof his duties as a juror in accordance with his [or her] instructions and his [or her] oath.” (Wainwright v. Witt (1985) 469 U.S. 412, 433.) “The circumstancethat a juror’s conscientious 108 opinions or beliefs Concerning the death penalty would makeit very difficult for the juror ever to impose the death penalty is not equivalent to a determination that such beliefs will ‘substantially impair the performanceofhis [or her] duties as a juror’ under Witt.” (People v. Stewart, supra, 33 Cal.4th at p. 447, emphasis added.) A penalty juror who can set aside his or her personalfeelings, follow the law and consider the evidence is qualified to serve. (People v. Ledesma (2006) 39 Cal.4th 641, 674-675.) Because Juror 3389 said nothing either in his questionnaire or during voir dire that suggested he would be unable or unwilling to set aside his personal views, to consider and weigh the evidence presented and follow the court’s instructions, the trial court erred in excusing him for cause. Appellant is therefore entitled to reversal of his death sentence. B. The Record Below Juror 3389 stated in his jury questionnaire that he was “moderately against” the death penalty, and that “[t]he death penalty should be used rarely, only when society cannot depend uponlife in prison without the possibility of parole being ‘absolutely’ implemented.” (16CT Supp.I|I 4418.) He explained that his views regarding the death penalty were based onthe teachingsofhis Catholic faith. (16CT Supp.Il 4419.) Juror 3389 responded “yes” to the question “Do youfeel California should have the death penalty today” (16CT Supp.Il 4421), and responded “no”to the question, “If the trial reached the penalty phase would you automatically, in every case, regardlessof the evidence,voteforlife without the possibility of parole?” During voir dire, Juror 3389 clarified that he was not 109 categorically opposed to the death penalty. He stated, “Myinclination is to avoid the death penalty, inclination but not an absolute.” After explaining to Juror 3389 that a sentence oflife without possibility of parole meansthat the defendantwill never be released from custody, the court asked Juror 3389 whether he could foresee any circumstances under which he would choose the death penalty over life without the possibility of parole. Juror 3389 responded asfollows: | think it’s possible that certain circumstances could allow meto do thatif there were —I’ll just invent one. If there wereindividuals that were incarcerated and had ended up killing three of the guards, you know, where the system washavingdifficulty with that individual and wherethat individual’s existence is hazardous to some segmentof society, eventhough it happensto be inside within the prison, then | could find — | would find that an easy decision to say, hey, | would go the other way. (13RT 3222.) The court then asked him whether he could think of any other circumstances under which he would choosethe death penalty overlife without possibility of parole, and he stated, “I don’t have any obvious. If you want to ask me about one.” (/bid.) Neither the court nor the prosecutor took him up onthis invitation, however further questioning by the prosecutorelicited that absent a situation wherehefelt that a person would still pose a threat to others evenif incarcerated, Juror 3389 would beinclined to vote for life without the possibility of parole. (13RT 3223.) When questioned by defense counsel, Juror No. 3389 affirmed that he would vote for a death sentenceif he felt that the facts and evidence warrantedit. (13RT 3224.) Notably, Juror 3389 was neverspecifically asked, eitherin his questionnaire or during voir dire, whether or not he could set aside his personalfeelings about the death penalty, consider the evidence in 110 mitigation and aggravation, and follow the court's instructions. The prosecutor challenged Juror 3389 for cause, arguing that Juror 3389 did not have an “open mind” towards the death penalty and would only imposeit if he felt that life imprisonment would not sufficiently protect society. (13RT 3245.) Defense counsel opposed the challenge on the grounds that while Juror 3389 “may have an inclination to life in prison, he was open, depending on the circumstances and facts of the case, to render a verdictif hefeltit was warranted.” (13RT 3245-1346.) In response to the prosecutor's assertion that Juror 3389 should be excluded becausehe only described one scenario under which he would vote for a death sentence, defense counselpointed out that he had invited the court to ask him questions about other hypothetical scenarios, thus demonstrating his willingness to consider a death sentence under circumstances beyond those he described. (13RT 3245.) Thetrial court ruled as follows: | am going to grant the motion asit relates to Mr. 3389. It appears from his answersthat he has a definite bias in favorofthe (sic) life without parole and that the only situation he could foresee himself, the only one he gave as an example — even when | asked him for additional situations where it might occur — the only one that came to mind for him is a situation where someone was already serving a life sentence and had committed further murders while in custody in serving thatlife sentence. | believe that based uponhis expressionof his strong religious beliefs** that he would notfairly 23. Juror 3389's religious beliefs were not discussedat all during voir dire. In his jury questionnaire responses, Juror 3389 noted that he was a “Roman Catholic,” and stated that “I try to practice what the Church teaches regarding capital punishment.” He also stated (in response to a question asking for his opinion as to which punishmentis worse, death or 111 consider bothoptions in this caseif given the opportunity to do so. (13RT 3246, emphasis added.) C. The Trial Court ExceededIts Constitutional Limitations WhenIt Excluded Juror 3389 on the Grounds That He Had a “Bias in Favorof Life,” and the Death Judgment Must Be Reversed Because Juror 3389 Was Qualified to Serve Under the Governing Standard 1. The Witherspoon-Witt Doctrine Sets Forth a Standard, a Procedure on Review, and a Constitutional Limitation of Trial Courts’ Power to Exclude Potential Jurors in the Context of a Capital Trial Under ordinary trial procedure, both civil and criminal, courts observethe basic rule that a potential juror may be excluded "for cause," and myriad circumstances are adequateto justify such exclusion. However, in a capital case, the United States Constitution placesa limitation on thetrial court's power to exclude a potential juror for cause based onthe juror’s feelings about capital punishment. This limitation is defined in the line of precedent that includes Witherspoonv.Illinois (1968) 391 U.S. 510, Adamsv. Texas (1980) 448 U.S. 38, and Wainwright v. Witt (1985) 469 U.S. 412. As aninitial matter, it is clear beyond peradventure that Witherspoon is not a ground for challenging any prospective juror. It is rather a limitation on the State's powerto exclude: if prospective jurors are barred from jury service becauseof their views about capital punishment on ‘any broaderbasis’ than inability to follow life in prison without the possibility of parole), “My religious beliefs include the fact that God demandsjustice, but Godis also all forgiving to those who warrantforgiveness. Life in prison provides the opportunity to earn forgiveness. Society must be absolutelyprotected from a possibility of parole.” (16CT Supp.Il 4419.) 112 the law or abide by their oaths, the death sentence cannot be carried out. (Witt, 469 U.S. at p. 436, Justice Stevens, concurring, quoting Adams, 448 U.S. at pp. 47-48, and noting that dissent by Justices Brennan and Marshall also endorses the standard.) Ifa trial court exceedsits powerin this regard, the penalty judgment must be reversed. (Davis v. Georgia (1976) 429 U.S. 122, 123; Gray v. Mississippi (1987) 481 U.S. 648, 660; People v. Heard (2003) 31 Cal.4th 946, 966.) That is precisely whatthetrial court did in this case and therefore appellant's penalty judgment must be vacated. The legal framework stems from the United States Supreme Court's decision in Witherspoon, supra, 391 U.S. 510. Therein, the Court held that "for cause" dismissal of half the venire at the defendant's trial based on their "qualms about capital punishment," pursuantto a state law disqualifying jurors with "conscientious scruples against capital punishment, or are opposedtoit," violated the defendant's right to trial by an impartial jury under the Sixth Amendment. In footnotes 9 and 21, the Court in Witherspoon stated that a veniremembercould be excluded only if he or she would "automatically" vote against the death penalty, and that this state of mind should be "unambiguous"or "unmistakably clear." The statement in the footnotes, construed as a two-prongedtest, later was embraced as precedent by United States Supreme Court opinionsin Maxwell v.Bishop (1970) 398 U.S. 262, and Boulden v. Holman (1969) 394 U.S. 478. In Adamsv. Texas, supra, 448 U.S. 38, the United States Supreme Court applied Witherspoon and invalidated the disqualification of jurors under a Texas statute. Texas Penal Code 113 Annotated Section 1231(b), required each juror to state under oath that the possibility of the death penalty would not "affect [his or her] deliberations on any issue offact." The Court held that Witherspoon is not a ground for exclusion, but rather a limitation on the state's powerto exclude prospective jurors because oftheir views on capital punishment.” (/d. at pp. 47-48.) Rather than resting its holding on languagein footnotes 9 and 21 of the Witherspoon decision, the Court in Adamsset forth the doctrine as follows: This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, howeverthat jurors : will consider and decide the facts impartially and conscientiously apply the law as charged by the court. (Id. at p. 45.) Applying the test, the Court held that a potential juror's views about the death penalty might influence the mannerin which he or she performed his or herrole, yet without exceeding the "guided jury discretion" required under the state's capital penalty scheme considered as a whole, and thus the exclusionof certain jurors under section 1231(b) violated the precepts of Witherspoon. (Id. at p. 46.) In Wainwright v. Witt, supra, the United States Supreme Court endorsedthe basic principles set forth in Witherspoon,reaffirmed that the doctrine amounts to a constitutional limitation on trial courts’ 24 This distinction is subtle, yet important. If the doctrine were but one ground for exclusion, then state laws regarding the qualification of capital jurors permissibly could provide additional grounds to exclude potential jurors in capital cases. By emphasizing that the doctrine providesa limitation on the powerthe exclude, the United States Supreme © Court madeclearthat trial court's cannot supplement that constitutional test with other, different standards. 114 powerto exclude jufors based ontheir death penalty views, and set forth the modified two-prong test that governed the jury selection processat appellant's trial. On habeas review, the Court in Witt reversed the federal appellate court's finding of Witherspoon error and reinstated the Florida state court's judgment.” The Court stated that the governing standard no longer would be the one derived from Witherspoon footnotes 9 and 21, which asked whethera potential juror would "automatically" vote against the death penalty, but rather one set forth in Adams v. Texas, which asked whetherthe excluded juror's views on the death penalty would "substantially impair the performanceofhis [or her] duties as a juror in accordance with his [or her] instructions and his [or her] oath." (469 U.S.at pp. 422-423.) In addition to modifying the standard,at the first prong, the Court in Witt altered the second prong, that is, the procedure applicable to Witherspoon claims. Instead of asking whetherit was "unmistakably clear" that the potential juror indeed lacked qualifications to serve, a reviewing court musttreat the trial court's determination in that regard as a factual finding, entitled to deference andto be affirmed if supported by substantial evidence. The Witt decision referred several times to jurors’ "impartiality" or "bias," but in context it is clear that the United States Supreme Court used these terms as a shorthand for the standard to be applied at prong oneof the Witherspoon-Witt analysis. The Court stated: "Here, as elsewhere, the questis for jurors whowill conscientiously 5 The jurorat issue in Wift had been excluded after stating that her views against the death penalty would "interfere with" her sitting as a jurorin the case, and "interfere with" judging the guilt or innocence of the defendant. (469 U.S. 412, 416.) 115 apply the law andfind the facts. That is what an ‘impartial’ jury consists of, and we do not think, simply because a defendantis being tried for a capital crime, that he is entitled to a legal presumption or standard that allows jurors to be seated whoquitelikely will be biased in his favor." (469 U.S. at p. 423.) The Court continued: As with any othertrial situation where an adversary wishes to exclude a juror because ofbias, then, it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality. See Reynolds v. United States, 98 U.S. 145, 157, 25 L.Ed. 244 (1879). Itis then the trial judge's duty to determine whetherthe challenge is proper. This is, of course, the standard and procedure outlined in Adams, butit is equally true of any situation where a party seeks to exclude a biased juror. See, e.g., Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984) (where a criminal a criminal defendant sought to excuse a juror for cause andthetrial judge refused, the question was simply "did [the] juror swear that he could set aside any opinion he might hold and decide the case | on the evidence, and should the juror's protestations of impartiality have been believed"). §] We therefore take this opportunity to clarify our decision in Witherspoon, andto reaffirm the above-quoted standard from Adams as the proper standard for determining when a prospective juror may be excluded for cause becauseof his or her views on capital punishment. That standard is whetherthe juror's views would "prevent or substantially impair the performance of his duties as a jurorin accordancewith his instructions and his oath." [fn. omitted.] We note that, in addition to dispensing with Witherspoon's reference to "automatic" decisionmaking, this standard likewise does not require that a juror's bias be proved with “unmistakable clarity." This is because questionsofjuror bias cannot be reduced to question-and-answersessions which obtain results in the mannerof a catechism. (469 U.S.at p. 423-424.) 116 In a separate’section, the majority in Witt held that on habeas review,the trial court's "finding of bias" in excluding a juror was a factual determination entitled to a presumption of correctness under the federal habeas statute. (469 U.S. at pp. 431-435.) Here again, the Court used the term "biased" as a shorthand for a potential juror whofailed the Adamstest. The Court stated, "[t]he standard in this case is the easily understood one enunciated in Adams; whether the juror's views ‘would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” (469 U.S. at p. 433, quoting Adams, 448 U.S. at p. 45.) Thus, the Court reversed the grant of habeasrelief, on the ground that "[t]he trial court's finding of bias was made underthe proper standard, was subject to § 2254(d), and wasfairly supported by the record." (469 U.S. at p. 435.) Therefore, under United States Supreme Court precedent,in the context of for-cause exclusion under the Witherspoon doctrine, a "biased" or "partial" juror is one whoseviews on the death penalty would "prevent or substantially impair" a juror from performing his duties in accordancewith his instructions and his oath. (See Grayv. Mississippi, supra, 481 U.S. at p. 658 [noting that the Witt test refined the standard for claimsunder the Witherspoon rule]; see also Lockhart v. McCree (1986) 476 U.S. 162, 178 ["impartial jury consists of nothing more than "jurors whowill conscientiously apply the law andfind the facts," internal quotes omitted, emphasis added].) In other words,the "bias" that merits exclusion is nothing more,norless, than the state of mind that merits disqualification under Witt. It meansnothing for thetrial court to determine that a prospective juror possessesa preference, predilection, tendency to favor, or "bias" for 117 one penalty or the other. To warrantdisqualification, the trial court must go a step further, and assess and determine whether the "prospective juror would be unable to faithfully and impartially apply the law in the case before the juror." (Wainwright v. Witt, supra, 469 U.S. at p. 426.) The United States Supreme Court recently reaffirmed that the Adams"prevents or substantially impairs" test is the standard to be applied at prong one of the Witherspoon-Witt analysis. (Uttechtv. Brown (2007) 127 S.Ct. 2218, 2229.) In Uftecht, the United States Supreme Court summed up the precedents of Witherspoon, Witt, Gray, and Darden v. Wainwright (1986) 477 U.S. 168, for purposes of habeas review, as follows: These precedents establish at least four principles of relevance here. First, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. Witherspoon, 391 U.S. at 521, 88 S.Ct. 1770. Second, the State has a strong interest in having jurors who are able to apply capital punishmentwithin the frameworkstate law prescribes. Witt, 469 U.S. at 416, 105 S.Ct. 844. Third, to balance these interests, a juror who is substantially impaired in his or her ability to impose the death penalty underthe state-law framework can be excused for cause;butif the juror is not substantially impaired, removalfor causeis impermissible. /d. at 424, 105 S.Ct. 844. Fourth, in determining whether the removalof a potential juror would vindicate the State's interest without violating the defendant's right, the trial court makes a judgment based in part on the demeanorofthe juror, a judgment owed deference by reviewing courts. /d. at 424-434, 105 S.Ct. 844 (Id., 127 S.Ct. at p. 2224, emphasis added.) As to the second prong, procedure on review, the Court noted that deference must be shown 118 to fact-finding, based onthetrial court's superior position to assess demeanor, and that an additional layer of deference is required under | the federal habeas statute, 28 U.S.C. sections 2254(d)(1)-(2). (Ibid.) As it had donein Witt, the Court deemed the question of "partiality" to be subsumedwithin application of the constitutional standard: "Capital defendants have the right to be sentenced by an impartial jury. The State may notinfringe this right by eliminating from the venire those whose scruples against the death penalty would not substantially impair the performance oftheir duties." (/d. at p. 2231.) This Court has adopted the Witherspoon-Witt doctrine and applied it in many decisions. At the second prong, this Court has added the proceduralgloss that a judgmentwill be upheld on appeal so long as "thetrial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror." (People v. Wilson (2008) 44 Cal.4th 758, 779, quoting People v. Roldan (2005) 35 Cal.4th 646, 696.) On that score, a reviewing court shall "uphold a trial court's ruling if it is fairly supported by the record, accepting as binding the trial court's determination as to the prospective juror's true state of mind whenthe prospective juror has made statements that are conflicting or ambiguous." (People v. Cunningham (2001) 25 Cal.4th 926, 976, citations omitted.) Onthefirst prong, the standard for disqualifying a prospective juror, this Court consistently has hewnto the line established by the United States Supreme Court. This Court recently stated: As we have explained in numerous recent decisionsin capital cases, "[t]o achieve the constitutional imperative of impartiality, the law permits a prospective juror to be challenged for causeonlyif his or her viewsin favor of or 119 against capital punishment‘would "prevent or substantially impair the performanceofhis [or her] duties as a juror" in accordancewith the court's instructions and the juror's oath."[citations omitted.] (People v. Wilson, supra, 44 Cal.4th at p. 779.) Although numerousdecisions of this Court refer to a disqualifying "bias" for or against the death penalty, each of them use the term only as a shorthandfor those whofail testing under the Witherspoon-Witt standard — viz., whether the juror's beliefs would preventor substantially impair the performanceofhis or her duties as a juror in accordancewith the court's instructions and the juror's oath. (See e.g. People v. Earp (1999) 20 Cal.4th 826, 853; People v. Crittenden (1994) 9 Cal.4th 83, 121, citing Morganv.Illinois (1992) 504 U.S. 719, 733-736; People v. Coleman (1988) 46 Cal.3d 749, 764, 768, fns. 11 & 12; People v. Williams (1997) 16 Cal.4th 635, 666-667; People v. Jones (2003) 29 Cal.4th 1229, 1246; People v. Johnson (1989) 47 Cal.3d 1194; People v. Cunningham, supra, 25 Cal.4th at p. 979; People v. Samayoa (1997) 15 Cal.4th 795, 822; People v. Cooper (1993) 53 Cal.3d 771, 809; People v. Abilez (2007) 41 Cal.4th 472, 497-498.) 2. This Court’s Precedent Makes Clear That a Juroris Not Disqualified Under the Witherspoon-Witt Standard Simply Because He or She Does Not Believe in the Death Penalty and Would FindIt Very Difficult to Sentence Someoneto Death In People v. Stewart, supra, this Court made clearthattrial courts violate constitutional requirements when they disqualify jurors on the groundthat they would find it "very difficult" ever to impose the death penalty or would imposea "higher threshold" on the prosecutor 120 in the penalty phase of a capital case. (33 Cal.3d at pp. 442-443.) In light of the gravity of [the] punishment, for many membersof society their personal and conscientious views... would makeit ‘very difficult! ever to impose the death penalty. So long as suchjuror can follow his or her oath, he or she is "entitled — indeed, duty boundtosit on a capitaljury." (Id. at p. 446.) Prospective jurors in Stewart responded to an inquiry ona written questionnaire asking whether they held conscientious opinions or beliefs about the death penalty that would "prevent or makeit very difficult" to ever "vote to impose the death penalty." (33 Cal.4th at pp. 442-443.) Those who answered "yes"to this question were disqualified, without any "clarifying follow-up examination . . . during which the court would be able to further explain the role ofjurors in the judicial system, examine the prospective juror's demeanor, and make an assessmentof that person's ability to weigh a death penalty decision." (/d. at pp. 447-448, 449, emphasis added.) Exclusion of | such jurors for cause lacked an adequate basis, and waserror requiring reversal of the death judgment. (/d.) The Court in Stewart elucidated that a juror's disqualification from a California capital jury under the Witherspoon-Witt doctrine can be determined only by taking into consideration the state's unique capital sentencing process: Because the California death penalty sentencing process contemplatesthat jurors will take into account their own values in determining whether aggravating factors outweigh mitigating factors such that the death penalty is warranted, the circumstancethat a juror's conscientious opinions or beliefs concerning the death penalty would makeit very difficult for the juror ever to impose the death penalty is not equivalent to a determination that 121 such beliefs will "substantially impair the performanceof his [or her] duties as a juror" under Witt, supra, 469 U.S. 412, 106 S.Ct. 844. In other words, the question as phrased in the juror questionnaire did not directly addressthe pertinent constitutional issue. A juror could find it very difficult to vote to impose the death penalty, and yet such a juror's performancestill would not be substantially impaired under Witt, unless he or she were unwilling or unable to follow the trial court's instructions by weighing the aggravating and mitigating circumstances of the case and determining whether death is the appropriate penalty underthe law. (33 Cal.4th at p. 447, emphasisin original.) The Court accordingly emphasized that “[blefore granting a challenge for cause concerning a prospective juror, over the objection of anotherparty,a trial court must have sufficient information regarding the prospective juror’s state of mind to permit a reliable determination as to whether the juror’s views would ‘preventor substantially impair’ the performance of his or her duties (as defined by the court’s instructions and the juror’s oath) . . . ‘in the case before the juror.” (/d. at p. 445, citations omitted.) The Court noted that under Witt, the prosecution, as the moving party, bore the burden of demonstrating to the trial court that the above-stated standard wassatisfied as to each of the challenged jurors, and that the trial court then had a duty to determine whether the challenge was proper. (/d. at pp. 445-446.) The Court held that the trial court in that case did not have sufficient information regarding the excluded jurors’ states of mind to reliably make such a determination. (Id. at p. 451.) Theinstant case is similar to Stewart, in that the trial court made no attempt to ascertain whetheror not Juror 3389, despite his personalfeelings about the death penalty, was willing and able to 122 follow thetrial court’s instructions by weighing the aggravating and mitigating circumstances of the case and determining whether death was the appropriate penalty under the law. The prosecutor's questions during his voir dire of Juror 3389, as well as those asked by the trial court, focused entirely upon Juror 3389's personal views and not upon whether he could set them aside in order to perform his duty as a juror. Therefore, as was the case in Stewart, thetrial court herein had insufficient information to make a reliable determination that Juror 3389's personal beliefs concerning the death penalty would prevent or substantially impair the performance of his duties — as defined by the court’s instructions and Juror 3389's oath — in the case before him.”© Thetrial court’s exclusion of Juror 3389 thusfailed to comport with the constitutional standard. 3. The Trial Court Applied the Wrong Legal Standard and Disqualified Juror 3389 Merely Because He Had a Preference for Life Without the Possibility of Parole A qualified juror must be able to consider both penalties, and to impose the death penalty if he or she determinesit is appropriate in the case for which he or she is serving as a juror. (People v. Heard, supra, 31 Cal.4th at p. 958.) However, as noted above,a prospective juror may not be excluded for cause simply becausehis or her conscientious views relating to the death penalty would lead the juror to impose a higher threshold before concluding that the death penalty is appropriate. (People v. Stewart, supra, 33 Cal.4th at p. 447, citing People v. Kaurish (1990) 52 Cal.3d 648.) 8 The prosecutionfailed to meetits “burden of demonstrating to the trial court that this standard wassatisfied as to . . . [the challenged juror].” (Stewart, 33 Cal.4th at p. 445.) 123 The prior decisionsof this Court illustrate that jurors with a preferencein favor of one penalty or the other are qualified to serve. (See, e.g., People v. Lewis (2008) 43 Cal.4th 415, 488-490[juror who “strongly supported” death penalty andfelt that person who commits multiple murders or murder during a burglary or sexual assault should “always receive the death penalty,” not disqualified]; Peoplev. Hamilton (2009) 45 Cal.4th 863, 892-894 [juror whofelt that death penalty should be imposedin every case of intentional murder, and stated that “it would have to be an awful, awful strong case” on behalf of the defendant to sway him from voting for the death penalty, and juror who stated that she would “lean in the direction of the death penalty” for robbery, burglary andkilling of a young mother, not disqualified]; People v. McDermott, supra, 28 Cal.4th at p. 980 [juror whofavored the death penalty and said he would give more weight to circumstances of crime than other factors, not disqualified]; People v. Riggs (2008) 44 Cal.4th 248, 286-288[juror who stated that she would vote for death in all cases of intentional, deliberate or premeditated murder, and that she did not see the relevance of mitigating evidence concerning defendant’s background,not disqualified].?” The trial court's exclusion of Juror 3389 on the groundsthat he appearedto have “a definite bias in favoroflife 27 As to the juror’s strong preference for the death penalty and her skepticism regarding the value of mitigating evidence, the Court in Riggs observedthat “[t]he fact that this preexisting view might have madeit moredifficult for defendant to convince Juror A.M.of the relative strength of a mitigation case that included evidence of defendant's background does not prove that she would automatically vote for the death penalty, or that her belief prevented or substantially impaired the performance of her duties as a jurorto follow thetrial court’s instructions to weigh the - evidence to be offered.” (/d. at p. 287, emphasisin original.) 124 without parole,” was thus legally erroneous. 4. Under the Correct Constitutional Standard the Trial Court’s Disqualification of Juror 3389 is Unsupported by Substantial Evidence and the Death Judgment Must Therefore Be Reversed Not only did the trial court apply an erroneous legal standard granting the prosecutor’s challenge for cause of Juror 3389, but also its determination that Juror 3389 was not qualified to servein this case is not supported by substantial evidence. This court has articulated the standard of review whena trial court has granted a “for cause” challenge asfollows: Thetrial court's determination of the juror's state of mind is binding on appeal if the juror's statements are equivocalor conflicting. If the juror's statements are not inconsistent, we will uphold the court's rulingifit is supported by substantial evidence. (People v. Harrison (2005) 35 Cal.4th 208, 227, internalcitation omitted].) A trial court’s exclusion of a juror for cause is not supported by substantial evidenceif no rational trier of fact could find juror was unqualified (People v. Ochoa (2001) 26 Cal.4th 398, 432, see disapproved on other grounds); i.e., that he or she “would invariably vote... against the death penalty . . . without regard to the strength of aggravating and mitigating circumstances.”(/d. at p. 431, citation omitted.) Juror 3389's statements concerning his views on the death penalty were neither inconsistent nor equivocal. Juror 3389 stated that he did not like the death penalty, and preferredlife without possibility of parole, but that he nevertheless felt a death sentence 125 would be warrantedin a case where the defendant might pose a future threat to others.” The record thus reflects that Juror 3389 had thoughta lot about the death penalty, and despite his moral and religious beliefs, had cometo the conclusionthatit was an appropriate punishment in some cases. Consequently, this is nota case wherethetrial court’s factual determination regarding the juror’s state of mind is binding on appeal. Furthermore, as discussed above, nothing Juror 3389 said either in his questionnaire or upon voir dire indicated that he was 78 Future dangerousnesswas,in fact, an issue in this case. During trial, the prosecution went to great lengths to portray appellant as an active memberof a ruthlessly violent street gang, and to create an inference in the mindsof the jurors that he posed a continuing threat to others despite the fact that he was no longer“on the street.” During the guilt phase, the prosecutor played a tape recording of appellant's pretrial phonecall from the jail to his brother, in which he spoke of having the Deputy D.A. who wasthen prosecuting him “hit” (14RT 3609-3610; 15RT 3897-3898), and subsequently elicited testimony that the original Deputy D.A. was replaced dueto the “death threat” made by Jones during that call. (17RT 4479.) In his penalty phase closing argument, the prosecutor specifically argued that future dangerousness wasa factorjustifying imposition of the death penalty in this case. The prosecutorstated: | know you sawthis before, but | want to touch uponit again becauseit is something you should consider in making your decision as to the appropriate decision. Future dangerousness. Is it over? Did it end with the murderof Villa and Lopez and the attempted murderof Mr. Hernandez? Where doesit go on? | focus you on the one line of the defendant whenheis in countyjail, has been arrested and not on the street and doesn't have a gun on him anymore. Whatis he doing? He is on the phone saying, “we need that D.A. hit. |] Now | am not appealing to you as a district attorney, but the pointis it’s not over. This is someone whocontinuesto be a violent predator. (22RT 5808.) 126 “unable to conscientiously considerall of the sentencing alternatives, including the death penalty” in the case before him. (People v. Heard, supra, 31 Cal.4th at p. 958.) Asin Heard, thetrial court “did not explain what there wasin [Juror 3389’s] responsesthat indicated that he would not be willing or able to follow the law in determining whetherlife in prison without the possibility of parole, or death, was the appropriate punishmentin light of all the evidence presented.” (Id. at p. 965.) Indeed, no rationaltrier of fact could find, based on the record, that Juror 3389 was unqualified to serve on thejury in this case. Thetrial court’s finding otherwise is therefore not supported by substantial evidence and, accordingly, not entitled to deference on appeal. D. Conclusion As demonstrated above,the trial court erred in granting the prosecution’s challenge for cause of Juror 3389. The court incorrectly ruled that Juror 3389 wasdisqualified by virtue of his “bias” in favor of life with out possibility of parole,” and it improperly excluded him without having any evidence whatsoever that Juror 3389's personal feelings about the death penalty would “prevent or substantially impair his performance of his duties as a juror in accordance with his instructions and his oath,” the constitutional standard setforth in Wainwright v, Witt, supra, 469 U.S.at p. 433. Becausehetrial court’s finding that Juror 3389 was unqualified to serve wasneither “made underthe proper standard”nor “fairly supported by the record” (id. at p. 435), appellant's death sentence must be reversed. (Grayv. Mississippi (1987) 481 U.S. 648, 660; People v. Heard, supra 31 Cal.4th at p. 966.) 127 Vi. THE ADMISSION OF EVIDENCE OF PRIOR UNADJUDICATED CRIMINAL ACTIVITY VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS REQUIRING REVERSAL OF THE DEATH JUDGMENT A. Introduction At the penalty phase of appellant's trial, the prosecution introduced in aggravation evidence of seven incidents of alleged prior criminality under factor (b) of section 190.3: the murderof Carl Milling in 1990; the carjacking of SaoSam in 1990; the shootings of Matthew Ferguson and Quincy Saunders in 1990; the robbery of Artis Lisby in 1991, the murder of Ronald Broussard in 1991 and the | possession of a concealed, loaded revolver in 199_. There had been noprior adjudication of any of these allegations. | Reliance on such unadjudicated criminal activity during the penalty phase deprived appellant of his rights to due process, a fair and speedytrial by an impartial and unanimousjury, the presumption of innocence, effective confrontation of witnesses, effective assistance of counsel, equal protection, and a reliable and non-arbitrary penalty determination, in violation of the Fifth, Sixth, Eight and Fourteenth Amendmentsto the United States Constitution. © In addition, even if (arguendo) a jury may properly rely uponthis type of evidence in determining penalty, the jury's reliance on the particular evidence of unadjudicated criminalactivity in this case was especially unreliable and therefore violative of appellant's rights to due process anda reliable penalty determination. Appellant's death judgment must therefore be reversed. ///l 128 B. The Use of Unadjudicated Allegations Violated Appellant's Constitutional Rights, Including His Fifth, Sixth, Eighth and Fourteenth Amendment Rights to Due Process and a Reliable Penalty Determination Section 190.3, subdivision (b), permitted the jury to considerin aggravation "[t]he presence or absenceof criminal activity by the defendant other than the crime for which the defendant has been tried in the present proceedings, which involve the use or attempted use of force or violence or the expressedor implied threat to use force or violence." (3CT 609.) Pursuantto that factor, the prosecution presented evidence of seven incidents of alleged criminal activity by appellant, and the jury wasinstructed that it could consider the presence or absenceofthis alleged criminalactivity. (Ibid.) The admission of evidence of previously unadjudicated criminal conduct as an aggravating factor justifying a capital sentence violated appellant's rights to due process and a reliable determination of penalty under the Eighth and Fourteenth Amendments. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578, 584-587 [prior conviction that had been set aside was usedin aggravation]; State v. Bobo (Tenn. 1987) 727 S.W.2d 945, 954-955 [to permit state to present evidence of murders other than convictions violates constitutional rights]; Stafe v. McCormick (Ind. 1979) 397 N.E.2d 276 [ to present facts of a previously untried murder during sentencing hearing denied defendant due process].) Admission of the unadjudicated prior criminal activity also denied appellant the right to a fair and speedytrial (indeed, there was no meaningful "trial" of the prior "offenses") by an impartial and unanimousjury, under the Sixth and Fourteenth Amendments, and 129 to equal protection of the law under the Fourteenth Amendment. An instruction expressly permitting the jury to consider such evidencein aggravation violates these same constitutionalrights. Factor(b) is anopen-ended aggravating factor that allows arbitrary and capricious application of the death penalty in violation of the Eighth Amendmentrequirementthat a rational distinction be made “between thoseindividuals for whom death is an appropriate sanction and thosefor whomit is not." (Parker v. Dugger (1991) 498 U.S. 308, 321, quoting Spazianov. Florida (1984) 468 U.S. 447, 460.) This Court has interpreted the section in an overly-broad fashion that cannot withstand constitutional scrutiny. Although the United States Supreme Court has repeatedly concluded that the procedural protections afforded a capital defendant must be more rigorous than those provided non-capital defendants (see Akev. Oklahoma (1985) 470 U.S. 68, 87 (conc. opn. of Burger, C.J.); Eddings v. Oklahoma (1982) 455 U.S. 104, 117-118 (conc. opn. of O'Connor, J.); Lockett v. Ohio (1978) 438 U.S. 586, 605-606), decisions by this Court have reversed this mandate and singled out capital defendants for less procedural protection than that afforded other criminal defendants. For example, this Court has ruled that, in order to consider evidence underfactor (b), it is not necessary for the 12 jurors to unanimously agree on the presenceof the unadjudicated criminal activity beyond a reasonable doubt (see People v. Caro (1988) 46 Cal.3d 1035, 1057); it has held that the jury may consider criminal violence which has occurred "at any time in the defendant's life," without regard to the statute of limitations (People v. Heishman (1988) 45 Cal.3d 147, 192); and it has held that thetrial court is not 130 ' required to enumerate the other crimes that the jury should consider or to instruct on the elements of those crimes (People v. Hardy (1992) 2 Cal.4th 86, 205-207). This Court has ruled that unadjudicated criminal activity occurring subsequentto the capital homicide is admissible under subdivision (b), but that felony convictions, even for violent crimes, rendered after the capital homicide are not admissible (People v. Morales (1989) 48 Cal.3d 527, 567); and it has ruled that a threat of violence is admissible if, by happenstance, the wordsare uttered in a state that has made such threat a criminal offense. (People v. Pensinger (1991) 52 Cal.3d 1210, 1258-1261). Juvenile conduct is admissible underthis factor (People v. Burton (1989) 48 Cal.3d 843, 862); as is an offense dismissed pursuant to a plea bargain (People v. Lewis (2001) 25 Cal.4th 610, 658-659). In sum, this Court has indeed treated death differently by lowering rather than heightening the reliability requirements in a mannerthat cannot be countenanced underthe federal Constitution. In addition, the use of the samejury for the penalty-phase adjudication of other-crimes evidence deprives a defendantof an impartial and unbiased jury and underminesthereliability of any | determination of guilt, in violation of the Sixth, Eighth and Fourteenth Amendments. Underthe California capital sentencing statute, a juror may considerevidenceofviolentcriminal activity in aggravation only if he or she concludesthat the prosecution has provena criminal offense beyond a reasonable doubt. (People v. Davenport (1985) 41 Cal.3d 247, 280-281.) As to such offense, the defendantis entitled to the presumption of innocence (see Johnson v. Mississippi, supra, 486 U.S. at p. 585) and the jurors must give the exact samelevel of 131 deliberation and impartiality as would have been required of them in a separate criminaltrial, for when a state providesfor capital sentencing by a jury, the Due Process Clause of the Fourteenth Amendment requires that such jury be impartial. (Cf. Groppiv. Wisconsin (1971) 400 U.S. 505, 508-509; where state procedures deprive a defendant of an impartial jury, the subsequent conviction cannotstand); Irvin v. Dowd (1961) 366 U.S. 717, 721-722; Donovan v: Davis (4th Cir. 1977) 558 F.2d 201, 202.) In appellant's case, the jurors charged with making an impartial, and therefore reliable, assessmentof appellant's guilt of the previously unadjudicated offenses were the same jurors who had just convicted him of capital murder. It would seem self-evidentthat a jury which already has unanimously found a defendantguilty of capital murder cannot be impartial in considering whether unrelated but similar violent crimes have been proved beyond a reasonable doubt. (See People v. Frierson (1985) 39Cal.3d 803, 821-822 (conc. opn.of Bird, C.J.).) Moreover, two of the unadjudicated offenses appellant's jurors were asked to impartially evaluate involved alleged murder, makingit impossible for the jury that had just convicted appellant of murdering four people to fairly evaluate the evidence. Evenin the unlikely event that only a single juror was impermissibly prejudiced against him, appellant's rights wouldstill be violated. (See People v. Pierce (1979) 24 Cal.3d 199, 208 ("[A] conviction cannot stand if even a single juror has been improperly influenced."]; United States v. Aguon (9th Cir. 1987) 813 F.2d 1413, 1421, mod. (en banc 1988) 851 F.2d 1158 ["The presence of even a single partial juror violates a defendant's rights underthe Sixth 132 Amendmentto trialty an impartial jury."].) A finding of guilt by such a biasedfact finder clearly would not be tolerated in other circumstances. “tt violates the Sixth Amendment guarantee of an impartial jury to use a juror whosat ina previous casein which the same defendant was convicted of a similar offense, at least if the cases are proximate in time." (Virgin Islands v. Parrott (3rd Cir. 1977) 551 F.2d 553, 554,relying, inter alia, on Leonard v. United States (1964) 378 U.S. 544 [jury panelwill be disqualified evenif it is inadvertently exposedto the fact that the defendant waspreviously convicted in a related case].) independentofits effect on the impartiality of the jury, the use of the samejury at both the guilt and penalty phasesof trial forced appellant to make impossible and unconstitutional choices during jury selection. Voir dire constitutes a significant part of a criminal trial. (Pointer v. United States (1894) 151 U.S. 396, 408-409; Lewis v. United States (1892) 146 U.S. 370, 376.) The ability to probe potential jurors regarding their prejudices is an essential aspect of a trial by an impartial jury. (Dyer v. Calderon (9th Cir. 1998)(en banc) 151 F.3d 970, 973, and citations therein.) In this case, counsel for appellant chose not to question potential jurors during jury selection about the unadjudicated crimes introduced at the penalty phase. Such evidence was not admissible during the guilt phase of thetrial, and counsel may havefelt that questioning the potential jurors about otherviolent crimes could havetainted the impartiality of the jury that was impaneled. Counsel could not adequately examine potential jurors during voir dire as to their biases and potential prejudices with respectto the prior unadjudicated crimes—in particular, those involving murder--without forfeiting appellant's constitutional right not 133 to have such subjects brought before the jurors. Requiring appellant to choose betweenthese twoconstitutional rights violated his rights to assistance of counsel, a fair trial before an impartial jury, anda reliable and non-arbitrary penalty determination, in violation of the Sixth, Eighth and Fourteenth Amendments. Further, because California does not allow the use of unadjudicated offenses in non-capital sentencing (California Rules of Court, rule 4.421.5), the use of this evidence in a capital proceeding violated appellant's equal protection rights under the Fourteenth Amendment. It also violated appellant's Fourteenth Amendment right to due process becausethe State appliesits law in anirrational and unfair manner. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346-347.) Forall the foregoing reasons, use of the evidence of unadjudicated criminal activity against appellant requires reversalof the judgment of death. (See Johnsonv. Mississippi, supra, 486 U.S. at p. 590; Chapmanv.California, supra, 386 U.S. at p. 24; People v. Brown (1988) 46 Cal.3d 432, 448.) Finally, as shown elsewhere (see ArgumentVII, post), the failure to require jury findings with respect to such unadjudicated conductnot only exacerbated this defect, but itself violated appellant's Fifth, Sixth, Eighth and Fourteenth Amendmentrights to due process,a jury trial, and a reliable determination of penalty. kkkeKK 134 * Vil. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL VIOLATES THE UNITED STATES CONSTITUTION Manyfeatures of California's capital sentencing scheme violate the United States Constitution. This Court, however, consistently has rejected cogently-phrased arguments pointing out these deficiencies. In People v. Schmeck (2005) 37 Cal.4th 240, this Court held that what it considered to be "routine" challenges to California's punishment schemewill be deemed"fairly presented"for purposesof federal review "even when the defendant does no more than (i) identify the claim in the context of the facts, (ii) note that we previously have rejected the sameora similar claim in a prior decision, and (iii) ask us to reconsider that decision.” (/d. at pp. 303-304, citing Vasquezv. Hillery (1986) 474 U.S. 254, 257.) In light of this Court's opinion in Schmeck,appellant briefly presents the following challenges to California's capital sentencing schemein order to urge reconsideration and preserve these claims for federal review. Should this Court decide to reconsider any of these claims, appellant requests the right to present supplemental briefing. — Penal Code section 190.3, factor (a), directs the jury to considerin aggravation the "circumstancesof the crime." (See 3CT 609 [CALJIC No. 8.85].) Prosecutors throughout California have arguedthat the jury could weigh in aggravation almost every conceivable circumstance of the crime, even those that, from case to case, reflect starkly opposite circumstances. Of equal importanceis 135 the use of factor (a)to embrace facts which coverthe entire spectrum of circumstances inevitably present in every homicide, facts such as the ageofthe victim, the age of the defendant, the method ofkilling, the motive for the killing, the time of the killing, and the location ofthekilling. | This Court has never applied any limiting construction to factor (a). (People v. Blair (2005) 36 Cal.4th 686, 749 ["circumstances of crime" not required to have spatial or temporal connection to crime].) As a result, the concept of "aggravating factors" has been applied in such a wanton and freakish mannerthat almostall features of every murder can be and have been characterized by prosecutors as “aggravating.” As such, California's capital sentencing scheme violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because it permits the jury to assess death upon no basis other than that the particular set of circumstances surrounding the instant murder were enough in themselves, without some narrowingprinciple, to warrant the imposition of death. (See Maynard v. Cartwright (1988) 486 U.S. 356, 363; but see Tuilaepav. California (1994) 512 U.S. 967, 987-988 [factor (a) survived facial challenge at time of decision].) Appellant is aware that this Court repeatedly has rejected the claim that permitting the jury to consider the "circumstancesof the crime" within the meaning of section 190.3 in the penalty phase results in the arbitrary and capricious imposition of the death penalty. (People v. Kennedy (2005) 36 Cal.4th 595, 641; People v. Brown (2004) 33 Cal.4th 382, 401.) Appellant urges this Court to reconsiderthis holding. California law does not require that a reasonable-doubt 136 standard be used during any part of the penalty phase, except as to proof of prior criminality. (People v. Anderson (2001) 25 Cal.4th 543, 590; People v. Fairbank (1997) 16 Cal.4th 1223, 1255; see Peoplev. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are moral and not "susceptible to a burden-of-proof quantification"].) In conformity with this standard, appellant's jury was nottold thatit had to find beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors before determining whetherornot to impose a death sentence, exceptas to proofof prior criminal acts. (3CT 615-616 [CALJIC No. 8.87 (1989 rev.)].) Apprendi v. New Jersey (2000) 530 U.S. 466, 478, Ringv. Arizona (2002) 536 U.S. 584, 604, Blakely v. Washington (2004) 542 U.S. 296, 303-305, and Cunningham v.California (2007) 549 U.S. 270, 127 S.Ct. 856, 871, now require that any fact used to support an increased sentence(other than a prior conviction) be submitted to a jury and proved beyond a reasonable doubt. In order to impose the death penalty in this case, appellant's jury hadtofirst makefactual findings: (1) that aggravating factors were present; and (2) that the aggravating factors were so substantial as to make death an appropriate punishment. (3CT 624-625 [CALJIC No. 8.88 (1989 rev.)].) Because these additional findings were required before the jury could impose the death sentence, Apprendi, Ring, Blakely, and Cunningham require that each of these findings be made beyond a reasonable doubt. Thetrial court failed to so instruct the jury and thusfailed to explain the general principles of law "necessaryfor the jury's understanding of the case." (People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on another groundin People v. Breverman (1998) 19 Cal.4th 142, 163, fn. 10; see Carter 137 v. Kentucky (1981) 450 U.S. 288, 302.) | Appellant is mindful that this Court has held that the imposition of the death penalty does not constitutean increased sentence within the meaning ofApprendi (People v. Anderson, supra, 25 Cal.4th 543, 589, fn. 14), and does not require factual findings (People v. Griffin (2004) 33 Cal.4th 536, 595). This Court has rejected the argument that Apprendi, Ring, and Blakely impose a reasonable-doubt standard on California's capital penalty phase proceedings. (People v. Prieto (2003) 30 Cal.4th 226, 263.) Appellant urges this Court to reconsiderits holding in Prieto so that California's death penalty schemewill comport with the principles set forth in Apprendi, Ring, Blakely, and Cunningham. Appellant also submits that the Due Process Clause and the Eighth Amendment require that the sentencerin a capital case be convinced beyond a reasonable doubt not only that the factual bases for its decision are true, but that death is the appropriate sentence. This Court previously has rejected the argument that the Due Process Clause and the Eighth Amendmentrequire that the jury be instructed that it must decide beyond a reasonable doubtthat the aggravating factors outweigh the mitigating factors and that death is the appropriate penalty. (People v. Blair, supra, 36 Cal.4th at p. 753.) Appellant requests that this Court reconsiderits rejection of this argument. . State law provides that the prosecution always bears the burden of proof in a criminal case. (Cal. Evid. Code, § 520.) Evidence Codesection 520 creates a legitimate state expectation as to the way a criminal prosecution will be decided, and appellant therefore is constitutionally entitled under the Fourteenth 138 Amendmentto the burden of proof provided for by that statute. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [defendant constitutionally entitled to procedural protections afforded by state law].) Accordingly, appellant's jury should have been instructed that the state had the burden of persuasion regarding the existence of any factor in aggravation and the appropriateness of the death penalty, and that it was presumedthatlife without the possibility of parole was the appropriate sentence. CALJIC Nos. 8.85 and 8.88,the instructions given here,fail to provide the jury with the guidancelegally required for administration of the death penalty to meet constitutionally-minimal standards,in violation of the Sixth, Eighth, and Fourteenth Amendments. This Court has held that capital sentencing is not susceptible to burdens of proof or persuasion becausethe exerciseis largely moral and normative, and thus unlike other sentencing. (People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137.) This Court also has rejected any instruction on the presumptionoflife. (People v. Arias (1996) 13 Cal.4th 92, 190.) Appellant is entitled to jury instructions that comport with the federal Constitution and thus urges this Court to reconsiderits decisions in Lenart and Arias. Even assumingit were permissible not to have any burden of proof, the trial court erred prejudicially by failing to articulate that to the jury. (Cf. People v. Williams (1988) 44 Cal.3d 883, 960 [upholding jury instruction that prosecution had no burden of proofin penalty phase under 1977 death penalty law ].) Absent such an instruction, there is the reasonablepossibility that a juror would vote for the death penalty because of a misallocation of a nonexistent burden of proof. 139 It violates theSixth, Eighth, and Fourteenth Amendments to impose a death sentence whenthere is no assurancethat the jury, or even a majority of the jury, ever found a single set of aggravating circumstancesthatwarranted the death penalty. (See Ballewv. Georgia (1978) 435 U.S. 223, 232-234; Woodson v. North Carolina (1976) 428 U.S. 280, 305.) Nonetheless, this Court "has held that unanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard." (Peoplev. Taylor (1990) 52 Cal.3d 719, 749.) This Court reaffirmed this holding after the decision in Ring v. Arizona, supra, 536 U.S. 584. (See People v. Prieto, supra, 30 Cal.4th at p. 275.) Appellant asserts that Prieto was incorrectly decided, and that application of the Ring reasoning mandatesjury unanimity under the overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. "Jury unanimity ... is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room,and that the jury's ultimate decision will reflect the conscience of the community." (McKoy v. North Carolina (1990) 494 U.S. 433, 452 (conc. opn. of Kennedy,J.).) Thefailure to require that the jury unanimously find the aggravating factors true also violates the Equal Protection Clause of the federal Constitution. In California, when a criminal defendant has been charged with special allegations that may increase the severity of his sentence, the jury must render a separate, unanimous verdict on the truth of such allegations. (See, e.g., Pen. Code § 1158a.) Since capital defendants are entitled to more rigorous protections than those afforded noncapital defendants (see Monge v. California (1998) 524 U.S. 721, 732; Harmelin v. Michigan (1991) 501 U.S. 140 957, 994), and since providing more protection to a noncapital defendantthan a capital defendant violates the Equal Protection Clause of the Fourteenth Amendment(see e.g., Myers v. Y1st (9th Cir. 1990) 897 F.2d 417, 421),it follows that unanimity with regard to aggravating circumstances constitutionally is required. To apply the requirement to an enhancementfinding that may carry only a maximum punishmentof one yearin prison, but not to a finding that could have "a substantial impact on the jury's determination whether the defendant should live or die" (People v. Medina (1995) 11 ~ Cal.4th 694, 763-764), would byits inequity violate the Equal Protection Clause of the federal Constitution, and byits irrationality violate both the Due Process Clause and Cruel and Unusual Punishment Clause of the federal Constitution, as well as the Sixth Amendment's guaranteeof fairtrial by jury. Appellant asks this Court to reconsider Taylor and Prieto and require jury unanimity as mandated by the federal Constitution. Appellant's jury was not instructed that prior criminality had to be found true by a unanimousjury; nor is such an instruction generally provided for under California's sentencing scheme.In fact, the jury wasinstructed that unanimity was not required. (3CT 616 [CALJIC No. 8.87].) Consequently, any use of unadjudicated criminal activity by a memberof the jury as an aggravating factor, as outlined in Penal Code section 190.3, factor (b), violates due process and the Sixth, Eighth, and Fourteenth Amendments, rendering a death sentence unreliable. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578 [overturning death penalty based in part on vacated prior conviction].) This Court routinely has rejected this claim. (People v. Anderson, supra, 25 Cal.4th at pp. 584-585.) 141 The United States Supreme Court's recent decisions in Cunninghamv. California, supra, 549 U.S. 270, Blakely v. Washington, supra, 542 U.S. 296, Ring v. Arizona, Supra, 536 U.S. 584, and Apprendiv. New Jersey, supra, 530 U.S. 466, confirm that under the Due Process Clause of the Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment, all of the findings prerequisite to a sentence of death must be made beyond a reasonable doubt by a unanimousjury. in light of these decisions, any unadjudicated criminal activity must be found true beyond a reasonable doubt by a unanimousjury. Appellant is aware that this Court has rejected this very claim in People v. Ward (2005) 36 Cal.4th 186, 221-222, but asks this Court to reconsiderits decision in Ward. The question of whether to impose the death penalty upon appellant hinged on whetherthe jurors were "persuadedthat the aggravating circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole." (3CT 625.) The phrase "so substantial" is an impermissibly broad phrase that does not channel orlimit the sentencer's discretion in a mannersufficient to minimize the risk of arbitrary and capricious sentencing. Consequently,this instruction violates the Eighth and Fourteenth Amendments becauseit creates a standard that is vague and directionless. (See Maynard v. Cartwright, supra, 486 U.S. 356, 362.) . This Court has found that the use of this phrase does not renderthe instruction constitutionally deficient. (People v. Breaux (1991) 1 Cal.4th 281, 316, fn. 14.) This Court should reconsiderthat holding. | 142 The ultimatequestion in the penalty phase of a capital caseis whether death is the appropriate penalty. (Woodson v. North Carolina, supra, 428 U.S. at p. 305.) Yet, CALJIC No. 8.88 does not makethis clearto jurors; rather, it instructs them they can return a death verdictif the aggravating evidence "warrants" death rather thanlife without parole. These determinations are not the same. To satisfy the Eighth Amendment"requirementof individualized sentencing in capital cases" (Blystone v. Pennsylvania (1990) 494 U.S. 299, 307), the punishment mustfit the offense and the offender, i.e., it must be appropriate (see Zant v. Stephens, supra, 462 U.S. at p. 879). On the other hand, jurors find death to be "warranted" when they find the existence of a special circumstance that authorizes death. (See People v. Bacigalupo (1993) 6 Cal.4th 457, 462, 464.) By failing to distinguish between these determinations, the jury instructions violate the Eighth and Fourteenth Amendments to the federal Constitution. This Court previously has rejected this claim. (People v. Arias, supra, 13 Cal.4th at p. 171.) Appellant urges this Court to reconsider that ruling. Penal Code section 190.3 directs the jury to impose a sentenceoflife imprisonment without parole when the mitigating circumstances outweigh the aggravating circumstances. This mandatory languageis consistent with the individualized consideration of a capital defendant's circumstances that is required under the Eighth Amendment. (See Boydev. California (1990) 494 U.S. 370, 377.) Yet, CALJIC No. 8.88 does not addressthis proposition, but only informsthe jury of the circumstances that permit the rendition of a death verdict. By failing to conform to the mandate 143 of Penal Code section 190.3, the instruction violated appellant's right to due processof law. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) | This Court has held that since the instructiontells the jury that death can be imposedonlyif it finds that aggravation outweighs mitigation, it is unnecessary to instruct on the converseprinciple. (People v. Duncan (1991) 53 Cal.3d 955, 978.) Appellant submits that this holding conflicts with numerous cases disapproving instructions that emphasize the prosecution theory of the case while ignoring or minimizing the defense theory. (See People v. Moore (1954) 43 Cal.2d 517, 526-529; People v. Kelly (1980) 113 Cal.App.3d 1005, 1013-1014; see also People v. Rice (1976) 59 _ Cal.App.3d 998, 1004 [instructions required on every aspect of case].) It also conflicts with due processprinciples in that the non-reciprocity involved in explaining how a death verdict may be warranted, but failing to explain when a verdict oflife without the possibility of parole is required, tilts the balance of forces in favor of the accuser and against the accused. (See Wardius v. Oregon (1973) 412 U.S. 470, 473-474.) Thefailure of the jury instructions to set forth a burden of proof impermissibly foreclosed the full consideration of mitigating evidence required by the Eighth Amendment. (See Brewer v. Quarterman (2007) 550 U.S. 286, 292-296; Mills v. Maryland (1988) 486 U.S. 367, 374; Lockett v. Ohio (1978) 438 U.S. 586, 604; Woodsonv. North Carolina, supra, 428 U.S. at p. 304.) Constitutional error. occurs whenthereis a likelihood that the jury has applied an instruction in a way that prevents the consideration of constitutionally relevant evidence. (Boyde v. California, supra, 494 U.S. at p. 380.) 144 That occurred here’becausethe jury wasleft with the impression that appellant bore some particular burden in proving facts in mitigation. A similar problem is presented by the lack of instruction regarding jury unanimity. Appellant's jury wastold in the guilt phase that unanimity was required in order to acquit appellant of any charge or special circumstance. In the absence of an explicit instruction to the contrary, there is a substantiallikelihood that the jurors believed unanimity also was required forfinding the existence of mitigating factors. A requirement of unanimity improperly limits consideration of mitigating evidencein violation of the Eighth Amendmentof the federal Constitution. (See McKoy v. North Carolina, supra, 494 U.S. at pp. 442-443.) Had the jury beeninstructed that unanimity was required before mitigating circumstances could be considered, there would be no question that reversal would be required. (/bid.; see also Mills v. Maryland, supra, 486 U.S. at p. 374.) Because there is a reasonablelikelihood that the jury erroneously believed that unanimity was required, reversal also is required here. In short, the failure to provide the jury with appropriate guidance wasprejudicial and requires reversalof appellant's death sentence since he was deprived of his rights to due process, equal protection anda reliable capital sentencing determination, in violation of the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. The presumption of innocenceis a core constitutional and adjudicative value that is essential to protect the accused in a criminal case. (See Estelle v. Williams (1976) 425 U.S. 501, 503.) In the penalty phaseof a capital case, the presumptionoflife is the correlate of the presumption of innocence. Paradoxically, however, 145 although the stakesare much higherat the penalty phase,there is no statutory requirement that the jury be instructed as to the presumptionoflife. (See Note, The Presumption of Life: A Starting Point for Due Process Analysis of Capital Sentencing (1984) 94 Yale L.J. 351; cf. Delo v. Lashley (1983) 507 U.S. 272.) Thetrial court's failure to instruct the jury that the law favors life and presumeslife imprisonment without parole to be the appropriate sentence violated appellant's right to due process of law (U.S. Const., 14th Amend.), his right to be free from cruel and unusual punishmentand to have his sentence determined in a reliable manner (U.S. Const., 8th & 14th Amends.), and his right to the equal protection of the laws. (U.S. Const., 14th Amend.). In People v. Arias, supra, 13 Cal.4th 92, this Court held that an instruction on the presumption oflife is not necessary in California capital cases, in part because the United States Supreme Court has held that "the state may otherwise structure the penalty determination asit seesfit," so long as state law otherwise properly limits death eligibility. (/d. at p. 190.) However, as the other sections of this brief demonstrate, this state's death penalty law is remarkably deficientin the protections needed to ensure the consistent and reliable imposition of capital punishment. Therefore, a presumption of life instruction constitutionally is required. Consistent with state law (People v. Fauber (1992) 2 Cal.4th 792, 859), appellant's jury was not required to make anywritten findings during the penalty phaseofthe trial. The failure to require written or other specific findings by the jury deprived appellant of his rights under the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, as well as his right to meaningful appellate 146 review to ensure that the death penalty was not capriciously imposed. (See Gregg v. Georgia, supra, 428 U.S. at p. 195.) This Court has rejected these arguments. (People v. Cook (2006) 39 Cal.4th 566, 619.) Appellant urges this Court to reconsiderits decisions on the necessity of written findings. Theinclusionin the list of potential mitigating factors of such adjectives as "extreme" and "substantial" (see 3 CT 645 [CALJIC No. 8.85]; Pen. Code, § 190.3, factors (d) and (g)) acted as barriers to the consideration of mitigation in violation of the Sixth, Eighth, and Fourteenth Amendments. (See Mills v. Maryland, supra, 486 U.S. at p. 384; Lockett v. Ohio, supra, 438 U.S. at p. 604.) Appellantis aware that this Court has rejected this very argument (Peoplev. Avila (2006) 38 Cal.4th 491, 614), but urges reconsideration. A numberof the sentencing factors set forth in CALJIC No. 8.85 were inapplicable to appellant's case, including factors (e) [victim a participant in or consented to homicide] and(f) [offense committed undercircumstances which the defendant reasonably believed to be a moral justification or extenuation of his conduct]. Thetrial court failed to omit those factors from the jury instructions, likely confusing the jury and preventing the jurors from making any reliable determination of the appropriate penalty, in violation of appellant's constitutional rights. Appellant asks this Court to reconsiderits decision in People v. Cook, supra, 39 Cal.4th at p. 618, and holdthat the trial court must delete any inapplicable sentencing factors from the jury's instructions. In accordance with customary state-court practice, nothing in the instructions advised the jury which of the sentencing factorsin CALJIC No. 8.85 were aggravating, which were mitigating, or which 147 could be either aggravating or mitigating depending uponthe jury's appraisal of the evidence. This Court has upheld this practice. (People v. Hillhouse (2002) 27 Cal.4th 469, 509.) As a matterof state law, however, severalof the factors set forth in CALJIC No. 8.85 — factors (d), (e), (f), (g), (hn), and (j) — were relevantsolely as possible mitigators. (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v. Davenport (1985) 41 Cal.3d 247, 288-289). Appellant's jury, though, wasleft free to conclude that a "not" answer as to any of these "whetheror not" sentencing factors could establish an aggravating circumstance. Consequently, the jury wasinvited to aggravate appellant's sentence based on non-existent orirrational aggravating factors precluding thereliable, individualized, capital sentencing determination required by the Eighth and Fourteenth Amendments. (See Stringer v. Black (1992) 503 U.S. 222, 230-236.) As such, appellant asks this Court to reconsiderits holding that the trial court need not instruct the jury that certain sentencing factors are relevant only as mitigators. The California capital sentencing scheme doesnot require that either the trial court or this Court undertake a comparison between this and other similar cases regarding the relative proportionality of the sentence imposed, i.e., intercase proportionality review. (See People v. Fierro, (1991) 1 Cal.4th 173, 253.) The failure to conduct intercase proportionality review violates the Sixth, Eighth, and Fourteenth.Amendmentprohibitions against proceedings conducted in a constitutionally arbitrary, unreviewable mannerorthat violate equal protection or due process. Forthis reason, appellant urges this Court to reconsiderits failure to require intercase proportionality review in capital cases. 148 California's déath penalty schemeprovidessignificantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes,in violation of the EqualProtection Clause of the Fourteenth Amendment. To the extent that there may be differences betweencapital defendants and non-capital felony defendants, those differences justify more, not fewer, procedural protections for capital defendants. In a non-capital case, any true finding on an enhancement allegation must be unanimous and beyond a reasonable doubt, aggravating and mitigating factors must be established by a preponderanceof the evidence, and the sentencer mustset forth written reasonsjustifying the defendant's sentence. (Peoplev. Sengpadychith (2001) 26 Cal.4th 316, 325; Cal. Rules of Court, rule 4.42, (b) & (e).) In a capital case, there is no burdenof proofat all, and the jurors need not agree on what aggravating circumstances apply nor provide any written findings to justify the defendant's sentence. Appellant acknowledgesthat this Court has previously rejected these equal protection arguments (People v. Manriquez (2005) 37 Cal.4th 547, 590), but he asks this Court to reconsider them. This Court repeatedly has rejected the claim that the use of the death penaltyat all, or, alternatively, that the regular use of the death penalty, violates international law, the Eighth and Fourteenth Amendments, and "evolving standards of decency." (Trop v. Dulles (1958) 356 U.S. 86, 101; see People v. Cook, supra, 39 Cal.4th at pp. 618-619; People v. Snow (2003) 30 Cal.4th 43, 127; People v. Ghent (1987) 43 Cal.3d 739, 778-779.) In light of the international community's overwhelming rejection of the death penalty as a 149 regular form of punishment and the United States Supreme Court's recent citation of international law to support its decision prohibiting the imposition of capital punishment against defendants who committed their crimes as juveniles (Roper v. Simmons (2005) 543 U.S. 551, 554), appellant urges this Court to reconsiderits previous decisions. KEKE 150 ~ Vill. REVERSALIS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS THAT UNDERMINED THE FUNDAMENTALFAIRNESS OF THE TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENT Numerouserrors, many of federal constitutional dimension, occurred at appellant's trial. Appellant has explained why each of those errors was prejudicial in itself. Even assuming that noneof the errors identified by appellant is prejudicial by itself, their cumulative effect undermines any confidencein the integrity of the proceedings which ultimately resulted in a death judgment against appellant. (See People v. Hernandez (2003) 30 Cal.4th 835, 877-878; People v. Hill (1998) 17 Cal.4th 800, 844-845; People v. Holt (1984) 37 Cal.3d 436, 459; People v. Buffum (1953) 40 Cal.2d 709, 726; People v. Cuccia (2002) 97 Cal.App.4th 785, 795; Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 893; Cargle v. Mullin (10th Cir. 2003) 317 F.3d 1196, 1206-1208; Killian v. Poole (9th Cir. 2002) 282F.3d 1204, 1211; Harris v. Wood (9th Cir. 1995) 64 F.3d 1432, 1438-1439: Makv. Blodgett (9th Cir. 1992) 970 F.2d 614, 622; United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1475-1476.) Thetrial court’s erroneousrulings in the guilt phase (1) restricting appellant’s cross examination concerning the substanceof the conversation between AnnaGranillo and Veronica Mungia that precipitated Granillo’s decision to change her story and (2) excluding Robert Robinson’s testimony establishing that appellant was no longer an active gang memberarbitrarily and unfairly deprived appellant of his right to subject the prosecution’s case to meaningful adversarial testing. (Montana v. Egelhoff (1996) 518 U.S. 37, 53 _ 151 [exclusion of exculpatory evidence without valid state justification deprives a defendantof the basic right to have the prosecutor's case encounter and survive the crucible of meaningful adversarial testing].) The devastating impact of these errors on the fairness of appellant's trial was exacerbated by the trial court’s further error in permitting the prosecution to introduce theirrelevant, yet highly prejudicial tape recording of appellant's telephone conversation with his brother. The combined errors also deprived appellant of his right under the Eighth and Fourteenth Amendments to a reliable determination of guilt and penalty. (Lockett v. Ohio, supra, 438 U.S. at p. 604 (qualitative difference between death and other penalties calls for greaterreliability when death sentence is imposed]; Beckv. Alabama, supra, 447 U.S. at p. 638 [applying Eighth Amendment requirementof reliability to guilt determination in capital case].) In dealing with a federal constitutional violation, an appellate court must reverse unless satisfied beyond a reasonable doubtthat the combinedeffect of all the errors in a given case was harmless. (Chapmanv. California, supra, 386 U.S. at p. 24; People v. Williams (1971) 22Cal.App.3d 34, 58-59.) In assessing prejudice, errors must be viewed through the eyesof the jurors, not the reviewing court, and the reasonable possibility that an error may have affected a single juror's view of the case requires reversal. (See, e.g., Parkerv. Gladden (1966) 385 U.S. 363, 366; People v. Pierce (1979) 24 Cal.3d 199, 208.) In the instant case,it certainly cannot be said that the errors had "no effect" on any juror. (Caldwell v. Mississippi (1985) 472 U.S. 320, 341.) Given the severity of the errors in this case, their 152 cumulative effect was to deny appellant due process, a fair trial by jury, and fair and reliable guilt and penalty determinations,in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. Appellant's conviction and death sentence must be therefore be reversed. — KRKRRKK 153 CONCLUSION Forall of the reasons stated above, appellant's conviction and — death sentence must be reversed Dated: October 14, 2010 Respectfully submitted, MICHAEL J. HERSEK State Public Defender 154 Assistant State Public Defender Attorneys for Appellant Kiongozi Jones CERTIFICATE OF COUNSEL (Cal. Rules of Court, rule 36(b) (2)) | am the Assistant State Public Defender assigned to represent appellant, Kiongozi Jones,in this automatic appeal. | conducted a word countof this brief using our office’s computer software. On the basis of the generated word count,| certify that this brief, excluding the tables and certificates, is 42,022 wordsin length. Dated: October 14, 2010 Attorney for Appellant 155 DEGLARATION OF SERVICE BY MAIL Case Name: People v. Kiongozi Jones Case Number: Los Angeles Superior Court No. NA-031990-01 Supreme Court No. S075725 i, the undersigned, declare as follows: | am overthe age of 18, not a party to this cause. | am employed in the county where the mailing took place. My business addressis 801 K Street, Suite 1100, Sacramento, California 95814. | served a copyof the following document(s): APPELLANT’S OPENING BRIEF by enclosing them in an envelope and !1 depositing the sealed envelope with the United States Postal Service with the postage fully prepaid; . /X1/ placing the envelopefor collection and mailing on the date and at the place shown below following our ordinary business practices. | am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the sameday that correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. The envelope was addressed and mailed on October 14, 2010,as follows: Kiongozi Jones Post Office Box P-21100 San Quentin State Prison San Quentin, CA 94974 Beverly Falk Deputy Attorney General 300 South Spring Street, Los Angeles, CA 90013 Geraldine S. Russell P.O. Box 2160 La Mesa, CA 91943 | declare under penalty of perjury underthe laws of the State of California that the foregoing is true and correct. Executed on October14, 2010, at Sacramento, Saundra Alvarez