PEOPLE v. NGUYEN (LAM THANH)Appellant’s Reply BriefCal.March 14, 2012sy, Bola£ Rad 2% Cue ea--E COURT CO" IN THE SUPREME COURT OF CALIFORNIA SUPREME COURT PEOPLE OF THE STATE OF ) FILED CALIFORNIA, ) ) MAR 14 2012 Plaintiff and Respondent, —) Frederick K. Ohirich Clerk ) ) S076340 === V. ) epuly ) (Orange County Superior LAM THANH NGUYEN, ) Court No. 95WF0682) ) Defendant and Appellant. _) DEATH PENALTY CASE ) APPELLANT'S REPLY BRIEF Richard C. Neuhoff, No. 54215 Attorney at Law 11 Franklin Square New Britain, CT 06051 tel.: (860) 229-0433 fax: (860) 348-1942 Attorney for Appellant Lam Thanh Nguyen RECEIVED MAR ~ 9 2012 DEATH PENALTY“ TABLE OF CONTENTS INTRODUCTION . 0...eens 1 A. Organization of This Brief, and Introduction to Appellant’s Reply to Respondent’s Statements of the FactS 2...eeeee ce eee eee 1 B. Appellant’s Reply to Respondent’s Statement of Facts with Regard to Counts 11 and 12 (the Killing of Duy Vu), of Which Appellant Was Acquitted ............... 3 GUILT-PHASE ISSUES AND ARGUMENTS THE MURDER COUNTS (Counts 6-7 and Counts 13-14) I. COUNTS 6 & 7 (relating to the February 5, 1995 shooting death of Sang Nguyen) COUNTS6 & 7 MUST BE REVERSED BECAUSE OF THE IMPROPER ADMISSION OF ALLEGED EXPERT TESTIMONY AS TO WHAT STATEMENTS ARE MOST COMMONLY MADE BY PURPORTEDLY RELUCTANT WITNESSES AT GANG CRIMES COMMITTED AT RESTAURANTS 2... ceeeeeeect ene 8 A. The Merits 2... .. 0... cecece eee eens 9 B. Alleged Forfeiture of Federal Constitutional Claims ..... 12 C. Prejudice . 6...eeeeens 12 l. Respondent’s Approach to the Question of Prejudice Is Wrong at a Fundamental Level ...... 14 2. Respondent’s Discussion of the Factual Record Is Flawed in Multiple Ways ...............-.. 19 a. Charles Hall, the Lone Independent Witness 2...eeeee eee 19 TABLE OF CONTENTS(continued) b. The Dinner Companion Witnesses and Respondent’s Claim That They Gave “Credible Explanations” for “Lying”to the Police on the Night of the Shooting .... 2] C. Dinner Companion Trieu Binh (“Temper”) Nguyen ........... 000.005. 22 d. Dinner Companion Linda Vu ............ 28 e. The Remaining Dinner Companions: Trieu Hai Nguyen, Michelle To, and Amy Pech ...............cece e eens 31 f. The Dinner Companions: Other Problems ......... 0.0. sees eee ee eee 33 3. Conclusion ........ee35 APPELLANT WAS UNCONSTITUTIONALLY PREVENTED FROM INTRODUCING EVIDENCE THAT THE CHEAP BOYS GANG HADA PLAN, MOTIVE, AND/OR OPPORTUNITY TO FRAME APPELLANT ....... 36 A. The Exclusion Of Evidence From Tin Duc Phan ........ 36 1. A Purported “Agreement” ........... 0.020000. 37 2. Trial Court “Could Have Acted Withinits Discretion by Excluding the Evidence” .......... 40 a. Respondent’s Theory of Exclusion Cannot Be Raised for the First Time on Appeal ... 0... cece eee eee 40 b. Respondent’s Section 352. Theory of Exclusion Also Fails on Its Merits ........ 42 3. The Purported Discovery Violation............. 46 -ii- TABLE OF CONTENTS(continued) a. The Discovery “Violation” .............. 46 b. The Sanction of Preclusion of Testimony . . . 47 4, Alleged Forfeiture of Federal Constitutional Claims 20...eee ee eee eens 49 5. Prejudice 2.0...eeeee eens 49 The Exclusion Of Evidence Relating To The Cheap Boys’ “Crash Pad” 2.0... cc ec eee ene 51 1. Respondent’s Reliance on Evidence Code 4. Section 352 2...eee nes 52 Respondent’s Attempt to “Diminish”the Probative Value of the Crash-Pad Evidence ...... 56 Alleged Forfeiture of Federal Constitutional Claims 2...eeeee eens 59 Prejudice 2.0... cece eee eee eee eens 60 Cumulative Prejudice From The Exclusion Of The Motive-Opportunity-Plan Evidence ................5. 60 3. ADDITIONAL ERRORSIN THE ADMISSION AND EXCLUSION OF EVIDENCE........ 00.0.0... cee ee eee eee 62 A. Appellant Was Impermissibly Precluded From Impeaching Michelle To With Evidence That She Was Living With Trieu Hai Binh At The Time She Decided To Come Forward With Her New Story .............. 62 The Trial Court Erred By Refusing To Give A Limiting Instruction As To Prejudicial Hearsay Evidence Relayed By Trieu Binh Nguyen ..... settee 65 -iii- TABLE OF CONTENTS(continued) C. The Errors, Considered Individually Or Cumulatively, Were Prejudicial With Respect to Counts 6 and7 ....... 67 IF THIS COURT WERE TO CONCLUDE THAT DEFENSE COUNSEL FAILED TO PRESERVE ANY OF THE AFOREMENTIONED CLAIMS, THEN A NEW TRIAL WOULD BE REQUIRED ON THE GROUND THAT APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL ....... 0.0... ccc eee ee 69 IF REVERSAL OF COUNTS6 AND 7IS NOT REQUIRED BY ANY OF THE PRECEDING CLAIMS, REVERSAL OF THOSE COUNTS, AND MORE, WOULD BE REQUIRED BECAUSE OF THE CUMULATIVE PREJUDICE OF THE ERRORS ........ 0.00.00 cece eee eee 70 I. COUNTS (Relating to the May 6, 1995 shooting death of Tuan Pham) COUNTS13 & 14 MUST BE REVERSED BECAUSE SELF-DEFENSE WAS ESTABLISHED AS A MATTER OF LAW; BUT IF A VALID LEGAL THEORY DOES __ EXIST UNDER WHICH SELF-DEFENSE COULD PROPERLY BE REJECTED, REVERSAL OF COUNTS13 AND 14 WOULDSTILL BE REQUIRED BECAUSEIT IS IMPOSSIBLE TO CONCLUDE BEYOND A REASONABLE DOUBT THAT NO JUROR RELIED UPON AN INVALID LEGAL THEORY ................... 71 A. Respondent’s Statement of the Facts re the Death of Tuan Pham ........ 0... cece eee ee eee eens 73 B. Respondent’s Theory #7: Lying-In-Wait Murder ....... 74 1. A Lying-In-Wait Theory May Not Be Invoked or Relied on for the First Time on Appeal........ 75 -iv- TABLE OF CONTENTS(continued) 2. The Evidence Fails to Support a Lying-In-Wait Theory 0.0... cece cece eee e eens 76 3. Respondent’s Lying-in-Wait Theory Fails to Take into Account the Imminent Mortal Danger Facing Appellant ..... 0.0.0... eee eee eee 80 4. Conclusion .......... 0. cece eee ee eens 82 Legal Theory #1: The “Mutual Combat” Theory ....... 84 1. Detective Nye’s Testimony Did Not Provide Substantial Evidence in Support of the Mutual- CombatTheory,i.e., Evidence That Was “Reasonable, Credible, and of Solid Value” ...... 85 2. The “Mutual Combat” Doctrine Does Not Apply to a Surprise Attack Such As Tuan Pham Was Attempting to Perpetrate on Appellant ...... 87 3. The “Mutual Combat” Exception to the Self- defense Doctrine Does Not Comeinto Play as the Result of the Type of Gang War Shown by the Evidence in This Case .................... 91 a. This Gang War WasNot“Mutual” Combat ....... 0.0.0.0 cece eee eee eee 91 b. Uncertainty, Vagueness, And Overbreadth .............. 0.0.0. .00008. 94 Legal Theory #2: The “Initial Aggressor” Theory ...... 97 Legal Theory #3: The “Seeks A Quarrel” Theory ...... 101 Legal Theory #4: The “Decent Person” Theory ....... 102 Legal Theory #5: The “Emotional Reaction” Theory ... 105 J. K. TABLE OF CONTENTS(continued) Legal Theory #6: The “Multiple Motivation” Theory ... 110 Even If This Court Were to Conclude That There Exists One or More Legally Valid Theories upon Whichthe Rejection of Self-Defense Might Be Based, Counts 13 and 14 Would Have to Be Reversed ........ 112 Respondent’s Forfeiture Arguments Are Meritless ..... 112 In Sum oo...eeeee n ees 114 IF COUNTS 13 AND 14 ARE NOT ORDERED DISMISSED FOR THE REASONSSET FORTH IN THE PRECEDING SECTION, COUNT 13 WOULD NONETHELESS HAVETO BE SET ASIDE BECAUSE EVENIF SELF-DEFENSE COULD BE REJECTED ON A MUTUAL-COMBAT OR MULTIPLE-MOTIVATION THEORY, SUCH A HOMICIDE WOULD BE NO MORE THAN MANSLAUGHTER............. 0.0.0 e cee eee 116 REVERSAL OF COUNTS13 AND 14 IS REQUIRED BECAUSE OF SEVERAL INSTRUCTIONAL ERRORS REGARDING SELF-DEFENSE .................. 00006. 118 A. The Trial Court Committed Reversible Error by Refusing to Instruct the Jury That There Is But One Standard for Self-defense, Applicable to All Persons ... 118 If This Court Rejects Appellant’s Contention That Appellant’s Belief That His Life Was in Imminent Danger Was Reasonable as a Matter of Law,the Trial Court Committed Reversible Error by Refusing to Instruct the Jury on Imperfect Self-Defense ........... 120 The Trial Court Committed Reversible Error by Failing to Instruct the Jury Sua Sponte on the Legal Meaning of “Mutual Combat” ................0006- 122 -vi- TABLE OF CONTENTS(continued) D. The Verdicts on Counts 13 and 14 Must Be Reversed Becausethe Jury Was Not Instructed on the Impossibility of Withdrawal with Respectto the Mutual-CombatandInitial-Aggressor Doctrines ....... 124 E. The Verdicts on Counts 13 and 14 Must Be Reversed Because the Jury Was NotInstructed on Ignorance or Mistake of Fact... 2.0... 0... cece ec eee eee 127 REVERSAL OF COUNTS13 AND 14 IS REQUIRED BECAUSE OF THE ERRONEOUS ADMISSION OF EVIDENCE REGARDING APPELLANT’S ROLEIN THE SHOOTING 2...ceeens 130 THE ATTEMPTED MURDER COUNTS (Counts 2-3, 4-5, 9-10) Il. COUNTS (relating to the July 21, 1994 shooting of Tony Nguyen) THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE JURY’S VERDICT THAT APPELLANT AIDED AND ABETTED THE CRIMES CHARGED IN COUNTS2 ls138 THE TRIAL COURT UNCONSTITUTIONALLY PREVENTED THE DEFENSE FROM FULLY IMPEACHING KEVIN LAC, THE PROSECUTION’S KEY WITNESS AS TO COUNTS 2 AND3............ 00002200 143 A. ImpeachmentofKevin Lac’s Claim That He Did Not Have a Gun and Did Not Know If Truong “Trippy” Nguyen Had One ........... 0... eee eee eee 143 l. Chynna Vu...... 2. eee eee eee ee 144 2. Linda Vu ... 2...eeeee ce eee 147 -Vii- TABLE OF CONTENTS(continued) 3. Alisa Trujillo and Laura Hughey .............. 148 4. Alleged Forfeiture of Federal Constitutional Claims .......0.2149 5. Prejudice .. 0... . eee eee eee 150 Impeachment of Kevin Lac’s Claim That the Defense WasBeing Selective in Its Questioning about His Police Interview ofMay 25,1995 ................4. 151 The Erroneous Exclusion Of Evidence Compels The Reversal Of Counts 2 And3....................0005 152 REVERSAL OF COUNTS2 AND 3 IS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED ERRORS IN EXCLUDING EVIDENCE OF THE CHEAP BOYS’ PLAN, MOTIVE, AND OPPORTUNITY TO FRAME APPELLANT 0...ceeeeee 154 REVERSAL OF COUNTS2 AND 3 IS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED ERRORS RELATED TO THE ADMISSION OF THE PREJUDICIAL HEARSAY EVIDENCE RELAYED BY TRIEU BINH NGUYEN 2...eeetenes 155 REVERSAL OF COUNTS2 AND 3 IS REQUIRED BECAUSE OF MULTIPLE CONSTITUTIONAL AND STATE LAW ERRORS COMMITTED IN CONNECTION WITH THE REBUTTAL TESTIMONY OF PROBATION OFFICER STEVEN SENTMAN ........... 2.020 ee eee ees 156 A. Violation of the Order Excluding Witnesses .......... 156 B. Sanction for the Unjustifiedly and Misleadingly Belated Discovery .......... 0... cece eee eee eens 158 The Trial Court’s Double Standard ................. 162 -Vill- TABLE OF CONTENTS(continued) D. Refusal to Instruct on Belated Discovery ............. 162 E. Precluding Defense Rebuttal Testimony from Le Nguyen 2.0... .eeeence n ees 164 IF REVERSAL OF COUNTS2 AND 3 IS NOT REQUIRED BY ANY OF THE PRECEDING CLAIMS BY ITSELF, REVERSAL WOULD BE REQUIRED BECAUSE OF THE CUMULATIVE.PREJUDICE OF THE ERRORS.... 170 IF THIS COURT WERE TO CONCLUDE THAT DEFENSE COUNSEL FAILED TO PRESERVE ANY OF THE AFOREMENTIONED CLAIMS, THEN A NEW TRIAL WOULD BE REQUIRED ON THE GROUND THAT APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL .......... 0.0.00 .2 eee eae 170 IV. COUNTS4-5 (relating to the Nov. 24, 1994 shooting of Huy “PeeWee” Nguyen) THE TRIAL COURT’S REFUSAL TO INSTRUCT ON UNREASONABLE SELF-DEFENSE REQUIRES REVERSAL OF COUNTS 4AND5 2.00... eee, 172 THERE IS INSUFFICIENT EVIDENCE TO SUPPORT . THE JURY’S VERDICTS AS TO (1) THE CRIME OF ACTIVE GANG PARTICIPATION IN COUNT 5 AND (2) THE GANG-BENEFIT ENHANCEMENTS ATTACHED TO COUNTS 4 AND5..................2.0. 176 REVERSAL OF COUNTS4 AND 5 IS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED ERRORS RELATED TO THE ADMISSION OF THE PREJUDICIAL HEARSAY EVIDENCE RELAYED BY TRIEU BINH NGUYEN....... 180 -1X- TABLE OF CONTENTS(continued) REVERSAL OF COUNTS4 AND 5 IS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED ERRORS ARISING FROM THE REBUTTAL TESTIMONY OF PROBATION OFFICER STEVEN SENTMAN...........- 180 IF REVERSAL OF COUNTS2 AND 3 IS NOT REQUIRED BY ANY OF THE PRECEDING CLAIMS BY ITSELF, REVERSAL WOULD BE REQUIRED BECAUSE OF THE CUMULATIVE PREJUDICE OF THE ERRORS.... 181 IF THIS COURT WERE TO CONCLUDE THAT DEFENSE COUNSEL FAILED TO PRESERVE ANY OF THE AFOREMENTIONED CLAIMS, THEN A NEW TRIAL WOULD BE REQUIRED ON THE GROUND THAT APPELLANT WASDENIEDHIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL ...... 0.0.0.0... e eee ees 181 V. COUNTS9-10 (relating to the March 11, 1995 shooting of Khoi Huynh) REVERSAL OF COUNTS 9 AND 10 IS REQUIRED BECAUSEOF THE PREVIOUSLY DISCUSSED ERRORS IN EXCLUDING EVIDENCE OF THE CHEAP BOYS’ PLAN, MOTIVE, AND OPPORTUNITY TO FRAME APPELLANT ......... 0.0 cece cee eee“bees 183 REVERSAL OF COUNTS9 AND 10 IS REQUIRED BECAUSEOF THE PREVIOUSLY DISCUSSED ERRORS RELATED TO THE ADMISSION OF THE PREJUDICIAL HEARSAY EVIDENCE RELAYED BY TRIEU BINH NGUYEN ... 0... 2.ceeeens 188 IF REVERSAL OF COUNTS9 AND 10 IS NOT REQUIRED BY ANY OF THE PRECEDING CLAIMS BY ITSELF, REVERSAL WOULD BE REQUIRED BECAUSE OF THE CUMULATIVE PREJUDICE OF THE ERRORS... . 188 TABLE OF CONTENTS(continued) IF THIS COURT WERE TO CONCLUDE THAT DEFENSE COUNSEL FAILED TO PRESERVE ANY OF THE AFOREMENTIONED CLAIMS, THEN A NEW TRIAL WOULD BE REQUIRED ON THE GROUND THAT APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL .......... 0.00.00 0c cece ee 189 VI. GANG CONVICTIONS AND ENHANCEMENTS (Counts 3, 5, 7, 10, 14, , plus ten § 186.22(b) enhancements) THE EVIDENCE WASINSUFFICIENT TO ESTABLISH THE “PRIMARY ACTIVITIES” ELEMENT OF THE GANG CRIMES AND ENHANCEMENTS................ 190 IT IS IMPERMISSIBLE BOOTSTRAPPING TO ADD GANG ENHANCEMENTS TO GANG SUBSTANTIVE OFFENSES 2.0...eenee een eens 192 OVERALL GUILT-PHASE ISSUES Vil. CLAIMS RELATED TO THE ARREST AND PROSECUTION OF THE DEFENSE INVESTIGATOR THE JUDGMENT MUST BE REVERSED FOR INEFFECTIVE ASSISTANCE OF COUNSEL ARISING FROM THE CRIMINAL DERELICTIONS OF THE DEFENSE INVESTIGATOR, DANIEL WATKINS ......... 194 A, Ineffective Assistance of Counsel .................. 194 1, The Applicability of Strickland ............... 195 2. Deficient Performance ................0-0 05 195 3. Prejudice .......... Lecce ee eee ee eee 197 -xi- TABLE OF CONTENTS(continued) If the Judgment Is Not Reversed for Ineffective Assistance of Counsel Due to Watkins’ Derelictions, the Case Must Be Remanded for a Renewed Motion for New Trial, with New Counsel Appointed to Represent Appellant ......... 0.0... c ee eee eee eee 201 VII. OTHER OVERALL GUILT-PHASE ISSUES THE TRIAL COURT IMPROPERLY ALLOWED THE PROSECUTION TO INTRODUCE EVIDENCEOF WEAPONS UNCONNECTED TO ANY OF THE CHARGED SHOOTINGS ...... 0.00... eee ees 204 APPELLANT’S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE TRIAL COURT ALLOWED THE PROSECUTION TO INTRODUCE STATEMENTS APPELLANT MADE DURING HIS MAY25, 1995, INTERROGATION AFTER HE HAD REPEATEDLY ASSERTEDHIS RIGHT TO COUNSEL ...............45. 209 A. The Illegally Acquired Statements Were Inadmissible for Any Purpose, Given Miranda and Its Progeny ...... 209 The Statements Were Inadmissible Because Involuntary 0.0... eeeceeeee 212 The Trial Court Violated Miranda By Failing To Limit The Jury’s Use Of Appellant’s Statements To Impeachment Purposes ........ 0.0... eee eee eee 216 The Errors Require Reversal of All Counts; If Not, the Gang Crimes and Enhancements Must Be Reversed ... . 217 Appellant Was Unconstitutionally Precluded from Fully Developing the Record on the Current Issue ..... 222 -Xli- TABLE OF CONTENTS(continued) REVERSAL OF ALL COUNTSIS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED ERRORS ARISING FROM THE REBUTTAL TESTIMONY OF PROBATION OFFICER STEVEN SENTMAN .................2...20-. 224 REVERSAL OF ALL COUNTSIS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED ERRORS RELATED TO THE ADMISSION OF THE PREJUDICIAL HEARSAY EVIDENCE RELAYED BY TRIEU BINH NGUYEN ....... 224 SHOULD APPELLANT BE DEEMED TO HAVE FORFEITED ANY ARGUMENTSOR ISSUES SET FORTH IN THIS APPEAL AS A RESULT OF ACTS OR OMISSIONSBY HIS TRIAL COUNSEL, THEN APPELLANT WAS DEPRIVEDOF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL .... 0.0.0.0... 2c eee eee eee 225 IF REVERSAL OF THE JUDGMENTOR ANY PARTS THEREOF IS NOT REQUIRED BY ANY OF THE PRECEDING CLAIMS, REVERSAL WOULD BE REQUIRED BECAUSE OF THE CUMULATIVE PREJUDICE OF THE ERRORS .................. 0000005 225 CLAIMSOF INSUFFICIENT EVIDENCE MUST BE ADDRESSED ON APPEAL EVEN WHEN THE JUDGMENTIS REVERSED FOR OTHER REASONS...... 226 ISSUES RELATED TO THE STATE’S INVOCATION OF THE DEATH PENALTY IX. ISSUES ARISING DURING JURY SELECTION THE TRIAL COURT UNCONSTITUTIONALLY PRECLUDED THE DEFENSE FROM DETERMINING WHETHER JURORS WOULD BE PREVENTED FROM VOTING FOR LIFE WITHOUT PAROLE, OR SUBSTANTIALLY IMPAIRED IN THEIR ABILITY TO -Xill- TABLE OF CONTENTS (continued) DO SO, IF THEY FOUND APPELLANT GUILTY OF MORE THAN ONE MURDER UNDER THE MULTIPLE-MURDER SPECIAL CIRCUMSTANCE....... 227 A. Defense Counsel Did Not Trigger the Court’s Limitation on Inquiry into the Multiple-Murder Aspect of the Case 20...cecete eee ees 228 B. The Trial Court Laid Down the Law at the Ensuing ProceedingS 0.0... ... ccc c ee eee eens 231 C. Purported Forfeiture... 00... cece cee eee ee 235 THE TRIAL COURT UNCONSTITUTIONALLY PRECLUDED THE DEFENSE FROM DETERMINING WHETHER JURORS WOULD BE PREVENTED FROM VOTINGFOR LIFE WITHOUT PAROLE, OR SUBSTANTIALLY IMPAIREDIN THEIR ABILITY TO DO SO, AS A RESULT OF MISCONCEPTIONS ABOUT SUCH A SENTENCE......... 00.00 cece ee eee eee 238 THE TRIAL COURT UNCONSTITUTIONALLY PRECLUDED THE DEFENSE FROM GOING BEYOND THE JUROR QUESTIONNAIRES IN DETERMINING WHETHER THE PROSPECTIVE JURORS MIGHT BE PREVENTED OR SUBSTANTIALLY IMPAIRED FROM RETURNING A NON-DEATH VERDICT AT THE PENALTY PHASE ........ 0... cece eens 241 x. OTHER ISSUES ARISING FROM THE USE OF THE DEATH PENALTY THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PRECLUDING THE DEFENSE FROM INTRODUCING EVIDENCE ABOUT LIKELY CONSEQUENCESOF A SENTENCEOF LIFE WITHOUT PAROLE ...... eee ecteee eens 243 -XIV- TABLE OF CONTENTS(continued) THE TRIAL COURT UNCONSTITUTIONALLY LIMITED DEFENSE COUNSEL’S ARGUMENT TO THE PENALTY JURY 2.2.0...ceeeee 247 CONFLICTING INSTRUCTIONS WERE GIVEN WITH RESPECT TO THE NEWLY INSTALLED ALTERNATES’ ABILITY TO CONSIDER LINGERING DOUBT ..... 0.cctenes 249 THE JUDGMENT AGAINST APPELLANT VIOLATES THE FEDERAL CONSTITUTION BECAUSE APPELLANT’S CAPITAL TRIAL WAS CONDUCTED, AND/OR HIS APPEAL IS BEING CONDUCTED, BEFORE JUDICIAL OFFICERS WHO EITHER HAD TO WIN, OR STILL HAVE TO WIN, A VOTE OF THE POPULACEIN ORDERTO STAY IN OFFICE AND WHO THUS HAD OR HAVEA MOTIVE, INCENTIVE, AND TEMPTATION TO RULE AGAINST HIM ................ 251 CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION ........... 0.0.0... eee eee 252 SHOULD APPELLANT BE DEEMED TO HAVE FORFEITED ANY ARGUMENTSOR ISSUES SET FORTH IN PARTSIX OF THIS BRIEF AS A RESULT OF ACTS OR OMISSIONS BY HIS TRIAL COUNSEL, THEN APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL ........... 0.0.0.2 eee eee 252 IF REVERSAL OF THE PENALTY JUDGMENTIS NOT REQUIRED BY ANY OF THE PRECEDING CLAIMS, REVERSAL WOULD BE REQUIRED BECAUSE OF THE CUMULATIVE PREJUDICE OF THE ERRORS FROM THE PENALTY AND GUILT PHASES OF TRIAL ......... 253 -XV- TABLE OF AUTHORITIES CASES Abdul-Kabir v. Quarterman (2007) 550 U.S. 233 owes 233 Apprendi v. New Jersey (2000) 530 U.S. 466 «0... cccesceeteteneees 17 Arizona v. Fulminante (1991) 499 U.S. 279 oieeeeeseeeeees 217 Ballew v. Georgia (1971) 435 U.S. 223 cececeeecccsccsseeseetsenenteeees 109 Barker v. Yukins (6th Cir. 1999) 199 F.3d 867 wesc eeceeeseeeeees 18 Beck Dev. Co.v. Southern Pac. Transp. (1996) 44 Cal.App.4th 1160 oo.eeececsesesseesesessseeeseeneeeeees 17,177 Blakely v. Washington (2004) 542 U.S. 296 0... 18, 210, 212 Boyde v. California (1990) 494 U.S. 370 icecececceseeseereeteeeeees 105 Brownv. Boren (1999) 74 Cal.App.4th 1303 oo.seeseeeseneens 75 Brownv. United States (1921) 256 U.S. 335 weecere 79 Cavazos v. Smith (2011)U.S.132 S.Ct218 Chambersv. Mississippi (1993) 410 U.S. 284 oeeeeeeeees 169 Chapmanv. California (1967) 386 U.S. 18 occ 13, passim Chiarella v. United States (1980) 445 U.S. 222 veces 75 College Hospital v. Superior Court (1994) 6 Cal.4th 704 ooo. cccccccsecssnesseeeeseceseessssensensees 14, 123, 137 Commonwealth v. Acevedo (Mass. 2006) 845 N.E.2d 274........ 107 Cramer v. Morrison (1979) 88 Cal.App.3d 873 woes 40-41 People v. Daniels (1991) 52 Cal.3d 815 ............ sevens 244, 247, 248 Davis v. Alaska (1974) 415 U.S. 308 ccceeeeseeeeeseeeeneens 151 Delaware v. Van Arsdall (1986) 475 U.S. 673 wee eeececeseeeeeeeeees 16 Dillon v. United States (2010) 130 S.Ct. 2683 oeeeeeeeseeeeeeee 17 District of Columbia v. Heller (2008) 554 U.S. 570... 82, 94 Bouie v. City of Columbia (1964) 378 U.S. 347 cece 94, 98 Dunn v. United States (1979) 442 U.S. 100 oeeeeeees 75 Estate of Bould (1955) 135 Cal.App.2d 260 oo... ccceeeeseeecerees 177 Franklin v. Lynaugh (1988) 487 U.S. 164 oeeceeeeteeteenees 249 Giordenello v. United States (1958) 357 U.S. 480 wee 4] Griffin v. United States (1991) 502 U.S. 46 oeseees 83 Harris v. New York (1971) 402 U.S. 222 we 209, 211, 213 Harris v. United States (2002) 536 U.S. 545 oeeecceeseeeneeeeees 85 Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663 .......... 173 In re Jorge M. (2000) 23 Cal.4th 866 oo... eccccseseseeneenes 107, 111 In re Marriage Cases (2008) 43 Cal.4th 757.0...cee 47, 109, 141 Jackson v. Virginia (1979) 433 U.S. 307 weesdeeeeaeeeneeeetaeeeees 2 Johns v. City of Los Angeles (1978) 78 Cal.App.3d 983 ........... 215 -XVI- TABLE OF AUTHORITIES(continued) Jones v. City of Los Angeles (1993) 20 Cal.App.4th 436 .......... 169 Keeler v. Superior Court (1970) 2 Cal.3d 619 wooeeeeeeeeees 93 Kolender v. San Diego County Civil Service Comn (2005) 132 Cal.App.4th 1150 occeecscesneeseeeeeesesereeeseceseesseensees 84 Krotin v. Porsche Cars North America (1995) 38 Cal.App.4th 294 oieeccccccseseceeserseeesnecseeessaeeeseeeeas 175 Leibman v. Curtis (1955) 138 Cal.App.2d 222 woeeeeeeeeee 160 Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107 3, 6, 89 Logacz v. Limansky (1999) 71 Cal.App.4th 1149 oo 173 Lynumnv.[Illinois (1963) 372 U.S. 528 oo... eeeeeeeenneeeeseeeees 214 Mary M.v.City of Los Angeles (1991) 54 Cal.3d 202 ww. 160 McCormickv. United States (1991) 500 U.S. 257ee 75 McDonald v. City of Chicago (2010) S61 U.S. _, 130 S.Ct. 3020, 177 L.Ed.2d 894 ow... 82, 94 Mickensv. Taylor (2002) 535 U.S. 162 oo... eeeeeeeesereeeeseeeeseeees 202 Monroyv.City of Los Angeles (2008) 164 Cal.App.4th 248..... 169 Morganv.IIlinois (1992) 504 U.S. 719 ieee eececeeesneeeeeneereeeees 234 Neder v. United States (1999) 527 U.S. 1 wee 15-16, 123, 129 Noell v. United States (9th Cir. 1950) 183 F.2d 334 oe 57 Oregon v. Hass (1975) 420 U.S. 714eeeeeceeeeeeeeeeeees 209, 211 Penry v. Lynaugh (1989) 492 U.S. 302 weeeeseeeseeereeseeeteeeeees 233 People v. Albillar (2010) 51 Cal.4th 47 wo. 10, 32, 109, 234 People v. Arcega (1982) 32 Cal.3d 504 oeeeeeeeeeeeereees 15, 120 People v. Arias (1996) 13 Cal.4th 92 ooeeceeeneeeeneees 85, 238 People v. Baker (1974) 39 Cal.App.3d 550 wceeeeeseeeeeenseeees 57 People v.Baldocchi (1909) 10 Cal.App. 42 oooeeeeeeeeseeeneaes 98 People v. Barnwell (2007) 41 Cal.4th 1038 wees 205-206 People v. Barragan (2004) 32 Cal.4th 236 .....ceeesceseeecesnecseeees 245 People v. Barry (1866) 31 Cal. 357 .occcecccsscceseseeceeeeeeeeseteseeeeeere 81 People v. Barton (1995) 12 Cal.4th 186 oeeeeecseeeeeesneteeees 128 People v. Beaver (2010) 186 Cal-App.4th 107 oeeee 76 People v. Bell (2004) 118 Cal.App.4th 249 oo 162, 163 People v. Bey (1993) 21 Cal.App.4th 1623 oo.eeececesseeseees 214 People v. Bolden (2002) 29 Cal.4th 515 oe 114, 235, 253 People v. Bouzas (1991) 53 Cal.3d 467 occeeeeseeeeteeeeeeee 69, 139 People v. Boyer (2006) 38 Cal.4th 412 ooeeeeeseeeeeenee 12, 67 People v. Breverman (1998) 19 Cal.4th 142 we. 173-174 People v. Briceno (2004) 34 Cal.4th 451 ooeeeeeeee 192, 193 People v. Bush (1884) 65 Cal. 129 woeeeseccesteeceesneeeeenreeees 116 -XVIlI- TABLE OF AUTHORITIES(continued) People v. Butts (1965) 236 CalApp.2d 817 wovcececeseesesseeeeeeees 15 People v. Calio (1986) 42 Cal.3d 639 woe ieccsccesessesseeeeeteeeeees 160 People v. Carmony (2004) 33 Cal.4th 367 we 198, 215, 241 People v. Carter (1957) 48 Cal.2d 737 wo.eiceccssssseeeeesseneees 168, 169 People v. Cash (2002) 28 Cal.4th 703 wo... 227, 231, 234 People v. Ceja (1994) 26 Cal-App.4th 78 wie cesccecseeseeeseseees 128 People v. Clair (1992) 2 Cal.4th 629 oeesesssseseeeeseeees 105, 114 People v Cluff (2001) 87 Cal-App.4th 991 oo.eee 215 People v. Cunningham (2001) 25 Cal.4th 926 wo. eeecseseeeeesees 55 People v. Curtin (1994) 22 Cal.App.4th 528 wo. ccccceccsesesseeteesees 76 People v. Daya (1994) 28 Cal.App.4th 697 otceceeseseeeeeees 129 People v. Edwards (1993) 17 Cal.App.4th 1248 0.0... 47-48, 49 People v. Estrada (1995) 11 Cal.4th 568 woe 11, 114, 216 People v. Felix (1994) 23 Cal.App.4th 263 wccececseseeseeees 207 People v. Flannel (1979) 25 Cal.3d 668 wo... cee eceeceeeeeeeeeneens 108 People v. Flood (1998) 18 Cal.4th 470 occeeesseseeeeeeeeens 218 People v. Foster (2010) 50 Cal.4th 1301 wo.cececteeseeeeens 237 People v. Fowler (1918) 178 Cal. 657 woe ceccccsceeeeceessseeeeseenees 92 People v. Fudge (1994) 7 Cal.4th 1075 we 119, 244, 246 People v. Geier (2007) 41 Cal.4th 555 wo... 12, 49, 170, 171, 182 People v. Giardino (2000) 82 Cal.App.4th 454 oo...eeeseeees 15 People v. Glover (1903) 141 Cal. 233 wove ciicceeessceeresserseeteeenees 101 People v. Gonzales (1887) 71 Cal. 569 oiiiicceccesscsseseeseneenseenee 88 People v. Gonzales (1967) 66 Cal.2d 482 w...ccceecceeesesseseeeseens 13 People v. Graham (1978) 83 Cal.App.3d 736 .c.cccccessseeeseens 169 People v. Green (1980) 27 Cal.3d 1 oeseseseesereeeeees 76, 113 People v. Guerra (2006) 37 Cal.4th 1067 oo...eee 167, 215 People v. Gutierrez (2009) 45 Cal.4th 789 0.0.0... 12, 49, 60, 65, 67, 150, 171, 182, 217 People v. Halvorsen (2007) 42 Cal.4th 379 ... 12, 49, 171, 172, 182 People v. Harvey (1985) 163 Cal.App.3d 90 o..ccececceseseeeeesees 120 People v. Hecker (1895) 109 Cal. 451 cicceeceseeeeseeseenseenes 79, 92 People v. Henderson (1976) 58 Cal.App.3d 349 ......... 204, 205, 207 People v. Hillhouse (2002) 27 Cal.4th 469 wieceeseereeeees 249 People v. Hoang (2006) 145 CalApp.4th 264 wo.eee 17 People v. James (1976) 56 Cal.App.3d 876 wicccecsessseessreeeeees 63 People v. Jimenez (1978) 21 Cal.3d 595 occcccessssseeeseeeens 177 People v. Johnson (1993) 19 Cal.App.4th 778 oo... 10 People v. Johnson (1980) 26 Cal.3d 557 oo.ceseseeeeees 3,6, 11,17 -XVili- People v. People v. People v. Peoplev. People v. People v. People v. People v. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. People v. Peoplev. Peoplev. Peoplev. People v. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. People v. People v. Peoplev. People v. People v. People v. Peoplev. People v. People v. Peoplev. TABLE OF AUTHORITIES(continued) Jones (2003) 29 Cal.4th 1229 weer 244, 253 Jones (2009) 47 Cal.4th 566 weeeeeeseeeereeeees 109, 192 Kunitz (2004) 122 Cal.App.4th 652 oo.eeeeeeeeeeeens 69 Lawson (2005) 131 CaLApp.4th 1242 woes 13 Lee (1987) 43 Cal.3d 666 occ cecceseesseseeceserserereeens 120 Lee (1999) 20 Cal.4th 47 oo. ceeccscscesscseeereretsseeeneees 116 Levitt (1984) 156 Cal.App.3d 500 ooeeeeeseeeeees 117 Lewis (2006) 39 Cal.4th 970 wee ceessesseeseeeeresseeeaes 12, 67 Linder (1971) 5 Cal.3d 342 ooeceeseeseeceseeseeeseeees 147 Loewen (1983) 35 Cal.3d 117 wo ceececeeseseeceeseeseeeeneeees 177 Loker (2008) 44 Cal.4th 691 ooo. ceecesesereseretneees 12, 67 Macy (1919) 43 Cal.App. 479 oo. eeceeseeeesseseseseseneneeees 57 Martinez (2010) 47 Cal 4th 911 ooeeeeeeeneeeees 244 Mattson (1990) 50 Cal.3d 826 wo..ecceeecsseeeeteeeeteetnees 168 Maury (2003) 30 Cal.4th 342 ooeeeesseeseeeeeeeeees 127 Mayfield (1997) 14 Cal.4th 668 oooeeeeeeseeteeeee OF McKelvy (1987) 194 Cal.App.3d 694 woeeeeseeeee 121 McKinnon (2011) 52 Cal.4th 610 weeceeeeseeeeeeeees 233 Melton (1988) 44 Cal.3d 713 ccceeeeseeceereeereeees 11,17 Mil (2012) ss Cal.4th —_, 135 Cal.Rptr.3d 339 123, 129 Mirenda (2009) 174 Cal.App.4th 1313eee 40 Mitchell (1939) 14 Cal.2d 237 woiceescesesssecserseeeeees 108 Morgan (2007) 42 Cal.4th 593 ooo. eeeseeseeseeeeees 113 Moses (1990) 217 Cal.App.3d 1245 oo.eeeeseeeneee 76 Neal (2003) 31 Cal.4th 63 ween 41, 113, 213, 215 Payton (1939) 36 CalApp.2d 41 oo ccceeseeeeeseeteeees 63 Riser (1956) 47 Cal.2d 566 oieeeseeeeseeseneeesseneeenees 205 Robbie (2001) 92 Cal.App.4th 1075 oo.eeeeseeereee 10 Robertson (1885) 67 Cal. 646 oo... eceeceesecetseeeeeeeereeees 98 Robinson (2005) 37 Cal.4th 592 oo. eeeeeesnteeeeees 237 Rodriguez (1998) 17 Cal.4th 253 ow. 113, 210, 238 Rogers (1958) 164 Cal.App.2d 555 oeeeeeeeeeeeeeee 92 Ross (2007) 155 Cal.App.4th 1033. .......... 78, 89, 92, 116 Rowland (1992) 4 Cal.4th 238 occceeeeeseeteees 83, 167 Russell (2006) 144 Cal.App.4th 1415 oe. 15, 127 Sanchez (1864) 24 Cal. 17 eceececcccccecesessneecteeeeseerenees 116 Schmeck (2005) 37 Cal.3d 240 oooccecccccseesseesreeeees 252 Sengpadychith (2001) 26 Cal.4th 316 wee 19] Sergill (1982) 138 Cal.App.3d 34 oeeeeeeneeeseeeeees 10 -X1X- TABLE OF AUTHORITIES(continued) People v. Sinclair (1998) 64 Cal.App.4th 1012 oe 128 People v. Snyder (2003) 112 Cal-App.4th 1200 occ 139 People v. Sorden (2005) 36 Cal.4th 65 ccccccsesersesetteeseeees 109 People v. Sweeney (1960) 55 Cal.2d 27 w.eccccccscseeeteeeeeeees 63, 66 People v. Tafoya (2007) 42 Cal.4th 147 ...esceesseeeseeieeeeenees 170 People v. Thompson (1988) 45 Cal.3d 86. «cece 238, 244-248 People v. Trevino (1988) 200 Cal.App.3d 874 oo...eee 110, 111 People v. Vaiza (1966) 244 Cal.App.2d 121...ceceeeseeererees 205 People v. Valdez (1986) 177 Cal-App.3d 680.0...cee 156-157 People v. Vasquez (2006) 136 Cal.App.4th 1176 woes 88 People v. Verdugo (2010) 50 Cal.4th 263 occ 12, 67, 195 People v. Vieira (2005) 35 Cal.4th 264 oeecseseeeereeees 231, 237 People v. Watson (1956) 46 Cal.2d 818 ..ccccccseeeteeteeeeeenees 13 People v. Welch (1993) 5 Cal.4th 228 oo....ccsesecsesessseneeseeeeeeees 236 People v. Whitfield (1968) 259 Cal.App.2d 605... 116, 129 People v. Williams (1997) 16 Cal.4th 153 oo...ee 139, 195, 244 People v. Williams (2000) 79 Cal.App.4th L157 vce 217 People v. Woodard (1979) 23 Cal.3d 329 ween 113, 120 People v. Zamora (1980) 28 Cal.3d 88 w..cececseseeeeeeeeeees 41,119 Pirtle v. Morgan (9th Cir. 2002) 313 F.3d 1160 oo.eeeteeees 18 Piscitelli v. Salesian Society (2008) 166 Cal.App.4th 1 o.... 55 Rivera v. Division of Industrial Welfare (1968) 265 Cal.App.2d 576 occeeeeeseesessesssssessenessessseseeseesneenes 109 Roperv. Simmons(2005) 543 U.S. S51 oeeccccesseseetetetetereeees 109 Rose v. Clark (1986) 478 U.S.570 ceeceeceeesseesceseteeteesteeteeeseeees 15 Smith v. Phillips (1982) 455 U.S. 209 ieeeeceseseetesseeseeneees 198 Spano v. New York (1959) 360 U.S. 315 vccccsseseeeeeteeeeeeees 214 Stack v. Stack (1961) 189 Cal.App.2d 357 oie cecceeseesseeteeetees 215 Strickland v. Washington (1984) 466 U.S. 668 ou... 113, 194 Stromberg v. California (1931) 283 U.S. 359 oceecceeeeeeeeeeeees 83 Thompsonv. United States (1894) 155 U.S. 271 cece: 88 Tossman v. Newman (1951) 37 Cal.2d 522 woeeieiecceseeseteneeees 147 United States v. Brown (1965) 381 U.S. 437 wee 86, 139, 140 United States v. Chancey (11th Cir. 1983) 715 F.2d543 84 United States v. United States Gypsum (1978) 438 U.S. 422. ...... 18 Victor v. Nebraska (1994) 511 U.S. 1 ccceeceeeeeteeeeeeneees 249 Westside Center Associates v. Safeway Stores 23 (1996) 42 Cal.App.4th 507 oeeeeesscssssssccsssscesssessesessesenesseeerenens 69 Whiteley v. Philip Morris (2004) 117 Cal.App.4th 635 ............. 173 -XX- TABLE OF AUTHORITIES(continued) Wicktor v. County of Los Angeles (1960) 177 Cal.App.2d 390 ... 67 Woodv. Georgia (1981) 450 U.S. 261 ieececseesteeeeees 202-203 Yates v. Evatt (1991) 500 U.S. 391 occecsccsteesseeeseeeereeseees 218 STATUTES AND RULES Civ. Code, § 3532 ciiccceecccsssccsssesssceesesecssneeeeseseesseessssesesseeesenees 236 Civ. Code, § 3547 coeciceeccccsssccssssesssecssseeeessecesssesseseesseessseeeeessseeeeees 57 Evid. Code, § 210 oceccccccccssseesesseeceseeseeccssseseeeenseseseesesenseeseetens 64 Evid. Code, § 351 cece cecsecsscssseeseesseeessecseeeesseesseseesesseeesseeeeseeenetens 56 Evid. Code, § 352. wceceecceceeseees 12, 37, 40-42, 45, 46, 52, passim Evid. Code, § 354 o...cccccceccssccsssessseceessecsssseeeeseseseseessneeesseesenseees 147 Evid. Code, § 355 ooceecececsccsssssseessecessecseecesseesseecsscesseeseesnseessneess 66 Evid. Code, § 800 ooeeccescsssseseesccetecsseeccessesseecesessaecsseeeesesesaeeeens 9 Evid. Code, § 801 icesecceesessssssecsseesseeeessessaeesseseeseeeseeesseess 9,10 Evid. Code, § 870 ....ccccccccsecccssssecssccceeesnscecccssseeccessseecessaseeseeesseeeeees 9 Evid. Code, § 1101 oo... cececccccecssessseeesseccessenscsseecesseeessseesseeseeaes 206 Evid. Code, § 1250 voici ccccecccsssesscesseessseeseeestessteesseesesesees 164-166 Evid. Code, § 1252 o..ccccccccsscccssessssceseseeseessseeeesssseeseceeeeesseseses 167 Pen. Code, § 186.22 ooicecceccscsssseesessees 190, 192-193, 218, 220 Pern. Code, § 189 iicccccccccsssessecssseccssssceessssesnsesessecessseseesseeeesees 8] Pen. Code, 190.3 oon cccccsssssscccsssssccseeessecsesseceesensensssesenss 243-245 Pen. Code, § 197 coececccccccccccsssscessceccssssecesecsseceeessseeseessaaeaes 81, 107 Pen. Code, § 198 occccscccssscsesssecessecsesessesseeeesteeeesseeesss 110, 111 Pen. Code, § 485 oo.ecccccccsesssecssesecsseccsseeseeesseeeaeesseesseecsaeessneessees 76 Pen. Code, § 1054 icciccesccssseseessecessecseessssessssesseessssenseeeeas 46, 47 Pen. Code, § 1054.1cccccccecssessseessssesessseeeseeseeseeesseesseeeeenees 160 Pen. Code, § 1054.5 oie ccccsecsssesceessecssecsaeesseeeessesseseseeessesesaeeesnes 48 Pen. Code, § 1054.7 icccccccccsesseccsecesesssseessesssssesseessesesseeesseees 160 Pen. Code, § 1259 iicccccccccssesessssccssessssesesessssseseeeessecsesseeseees 249 TREATISES, ARTICLES, ETC. Au, Tips for dressing your short and stylish guy (6/13/06), viewable at http://today.msnbe.msn.com/id/13265966/ns/ today-fathersdaygiftsgrillinggadgetsand_more/t/ tips-dressing-your-short-stylish-guy/ (as of 10/24/11) ......... 7 Blackstone’s ComMentarieS ............cceccccccceecceccccuseseescucccsccceaceens 116 -XXI- TABLE OF AUTHORITIES(continued) Dressing Taller: 10 Tips for Short Men (June 7, 2011) viewableat http://artofmanliness.com/2011/06/07/ dressing-taller-short-men/ (as Of 10/24/11) ....ceceseeceseeeeees 7 Gallup, Americans and Guns: Danger or Defense, http://www.gallup.com/poll/14509/americans-guns- danger-defense.aspx (as of Jan. 23, 2012). wo.cece 206 Gonzalez, Conducting Safe and Lawful Traffic Operations and Vehicle Stops, viewable at http://www.scribd.com/doc/ 51556058/Police-Traffic-Stop-Training-Presentation- Part-1-by-R-Gonzalez (as ofNov. 11, 2011) wee 79 International Association of Chiefs of Police Model Policy re Motor Vehicle Stops (Dec. 2006)...... 77-78 LaFave, Substantive Criminal Law (2d ed. 2003) oo...eee 107 LaFave& Scott, Substantive Criminal Law ...........ecseeeeeeeeeeeeeees 111 Molnar, “Traffic Stop Survival, Part 1,” Law Officer Magazine (June 1, 2010) viewable at www.lawofficer magazine.com/pring/3685 (as ofNov. 16, 2011) ............. 78 National Institute of Justice, Guns in America: National Survey on Private Ownership and Use of Firearms (May 1997) woo... sceccesssesseessssesscssssesesseeeseeesseeens 206 Orwell [Oh.] Police Dept., “Traffic Stops” viewableat http://www.orwellpolice.com/ trafficstops.htm (as ofNov. 11, 2011) weeese eeteeeees 78 Rovny, Fashion Tips For Short & Tall Men, viewable at http://www.askmen.com/fashion/fashiontip /31_fashion_advice.html (as Of 10/25/11) occeeeeeeeeeneeee 7 Wharton’s Criminal Law (15th Ed. 1994) wo.cceeeeseteenenens 90 -XXII- TABLE OF AUTHORITIES(continued) Witkin, Cal. Evid. 4th (2000) cecccccsscecssssseessscssseesssssseeesssseeesssnees 222 Witkin, Cal.Crim. Law (3d ed. 2000) ..ccccsssssscsesscssecssssseesssssseees 79 -XXIl- INTRODUCTION As Appellant’s Opening Brief sought to show,this case is remarkable in at least three regards. First, despite what might be inferred from thetotal number of convictions, the individual counts are all based upon thin foundations, as they depend uponhighly questionable identification evidence. Second,thejudgmentin this case is subject to an extraordinarily high number of serious appellate challenges. Third, under any plausible application of relevant law to the prosecution-favorable evidence adducedattrial, one ofthe murder convictions — a prerequisite to death-eligibility — is based on a shooting that was not a crimeat all but an act of self-defense. Nothing in the Respondent’s Brief affects these overall perspectives in the least.' A. Organization of This Brief, and Introduction to Appellant’s Reply to Respondent’s Statementsofthe Facts The organization ofthis brief follows that ofthe Appellant’s Opening Brief (““AOB”), with one notable exception: the Statement of Facts. Normally, briefs in a criminal appeal contain a statementofthe trial facts at the beginning ofthe brief, as did the AOB here. In the Respondent’s Brief (“RB”), however, an unconventional approach is taken. Respondent’s Statement ofFacts contains only a very skeletal, conclusory characterization of the extensive guilt-phase evidence. (RB 2-6.) Respondentsavesits detailed discussion for later. Its summary of the evidence related to Counts 6 and 7 (relating to the February 5, 1995 killing of Sang Nguyen) appears in its argumentthat no prejudice resulted from the errorraised as appellant’s first ' The instant ARB responds to those contentions in the RB that require further discussion for a proper determination ofthe issues. The ARB does not respond to issues that appellate counsel believes were adequately addressed in the AOB,and no waiveror concessionis intended as to any non- responseherein. -|- claim. (RB 12-29; see AOB 82-95.) And respondent’s summaries of the evidenceasto all ofthe remaining counts are located together at the outset of the RB’s responseto appellant’s challenge to the sufficiency ofthe evidence to support the convictions in Counts 13 and 14 (pertaining to the May 6, 1995 killing of Tuan Pham). (RB 61-112.) In view ofthe placement ofrespondent’s discussions ofthe evidence, appellant, here in the Appellant’s Reply Brief (ARB), will take a somewhat unconventional approach to replying to those discussions. With one exception, the ARB will reply to respondent’s evidentiary discussions when weaddress each individual incident. Thus, for example, appellant’s replies to respondent’s summary ofthe evidence with respect to Counts 6 and 7 (the Sang Nguyenkilling) and Counts 13 and 14 (the Tuan Pham killing) will be addressed in this ARB when we address those specific incidents. (See ARB §§ 1.1.C, pp. 12 et seq., and II.1, pp. 73 et seq., post.) The one exception to this involves Counts 11 and 12,related to the killing of Duy Vu, of which appellant was acquitted. Since, for obvious reasons, no appellate issues were raised in the AOB with regard to these not-guilty verdicts, we reply to respondent’s factualrecitation related to these counts in the next subsection of this Introduction, Subsection B. Aswill be discussedin detail hereafter, respondent’s various statements of facts contain two permeating deficiencies. First, respondent always presentsthe facts in the light most favorable to the prosecution. An approach of that general sort can be appropriate in responseto a claim ofinsufficient evidence, but it is inappropriate when, for example, the question is whether an error was prejudicial. This matter is discussed in detail in Section I.1.C.1, pp. 14 et seq., post. Second, even whenappellantis raising a claim ofinsufficient evidence (Jackson v. Virginia (1979) 433 U.S. 307), the appellate court “must resolve -2- the issue in the light of the whole record — i.e., the entire picture of the defendant put before the jury — and maynotlimit[its] appraisal to isolated bits of evidence selected by the respondent.” (People v. Johnson (1980) 26 Cal.3d 557, 577,original emphasis, internal quotation marks omitted.”) Thus, while “the appellate court must view the evidencein a light most favorable to respondent and presumein support ofthejudgmentthe existence ofevery fact the trier could reasonably deduce from the evidence[,] . . .[t]he court does not, however,limit its review to the evidence favorable to the respondent.” (/d. at pp. 576-577, internal quotation marks omitted.) Respondent’s summaries of the evidenceconsistently run afoul of these principles. B. Appellant’s Reply to Respondent’s Statement of Facts with Regard to Counts 11 and 12 (the Killing of Duy Vu), of Which Appellant Was Acquitted Respondent discusses at some length the evidencerelating to Counts 11 and 12 (the shooting ofDuy Vu), but it does so with a focusthatis slanted excessively in favor of the prosecution. (RB 88-98.) Appellate counsel are supposed to “summariz{e] all of the operative facts, not just those favorable to their clients.” (Lewis v. County ofSacramento (2001) 93 Cal.App.4th 107, 113.) Respondent’s discussion of Counts 11 and 12 does not meet this standard. | The prosecution’s case against appellant with regard to the Duy Vu killing rested upon the testimony of Jeanette Mandy. Mandy wasthe sole eyewitnessto the shooting, and she wasalso the only person whoat any time purported to identify appellant as Duy Vu’s shooter. (See AOB 48-50.) Mandydescribed a confrontation between Duy Vu and two men,one shorter and stockier and the other described by her as thinner and “taller.” (12 RT _ 2 In this brief, as in the AOB,all emphasesare added by appellant unless indicated otherwise. -3- 2367, 2370, 2371.) It was the “taller” man whofired the shots that hit Duy. Onthe night ofthe shooting, Mandyestimatedthe shooter to be between 5'10" and 6' tall. (12 RT 2391, 2408.) Attrial, Mandytestified that she had had “a very good opportunity on the day of the shooting to determine the height of the shooter” and that he was between 5'9"or 5'10"and6' tall,’ a description that was grossly inconsistent with appellant’s height (5'2"). Inits brief, respondent does not mention either Mandy’s testimony about how tall the shooter was or her characterization of the shooter as the “taller” man. Instead, respondent tiptoes through the record as if walking barefoot on hot coals. Perhaps the simplest way to see how respondenthas dealt with the rest ofMandy’s identification testimony—beyonddisregarding her height estimate and her characterization of the shooter as the “taller” individual— is to quote the RB andtoinsert the relevantfacts that respondent omits. What follows is quoted from RB 91, with our insertions in italics and bold-faced font (and with some ofrespondent’s punctuation marks changed): “Mandy identified appellant as the shooter on direct examination. (12 RT 2373.) However, on cross-examination, when appellant stood up and Mandy wasasked if he was the 5'9"to 6' person she had seen, Mandy testified, ‘Judging from where ’m sitting now, the angle I’m sitting at, I would say no.’ (12 RT 2401.).... “Mandyrecalled drawing composite pictures of the suspects (People’s Exhs. 61 and 62) with People’s Exhibit 61 representing the shooter. (12 RT 2388.) Mandyrecalled viewing close to 100 loose photographs and twosix packsat the police station. (People’s Exh. 60; 12 RT 2388-2389.) Sherecalled identifying People’s Exhibits 60-A and 60-B (from the loose photographs) as the photos which looked most like the two suspects. (12 RT 2389.) She recalled identifying People’s Exhibit 60-A (a photo ofappellant) as the photo looking most like shooter (12 RT 2389-2390), but Mandy was notpositive (12 RT 2335-2336, 2400). She viewedaphoto lineup containing appellant’s ; 12 RT 2391, 2408. photograph, but she did not identify anyone as the shooter. (12 RT 2338 ) And she attended thelive lineup on May 31 but picked out someone other than appellant. (12 RT 2409-2410.) She recalled identifying appellant as the shooter at the preliminary hearing (12 RT 2390), but her identification had not been certain at that time, either (12 RT 2401, 2406).” As can be seen, respondent has cherry-picked Mandy’s testimony.It has omitted her description of the shooter’s height, her failure to select appellant’s photo from a six-pack,herselection ofsome elseat the live lineup, her uncertainty whenshe didrefer to appellant in court, and her trial testimony ~ that, upon seeing appellant stand up, he wasnotthe shooter.’ Although Ms. Mandywasthe indispensable prosecution witnessas to Counts 11 and 12, as many as seven others may haveseen the shooter outside the laundry and wereable to give partial descriptions of him. Respondent’s summaries of these witnesses’ testimony are of a piece with its treatment of Mandy’s testimony. Thus, respondent says that Scott Dalton described the man as “a 19 to 20 year-old Asian male [wearing] a brown jacket” (RB 92), but respondent omits that Dalton also said that the man was6 feettall and that he “doubt[ed]” that appellant was that person. (12 RT 2420, 2421.) Similarly, respondent writes that Juan Hernandez described an “Asian, 19 to 21 years old” “ wearing a long brownleather jacket almost to his knee” (RB 92), but respondent declines to note that Hernandez said the man was “tall,” about 5'10" in height, and was “definitely not” appellant. (11 RT 2279, 2285, 2287.) | ‘ Following its summary ofthe evidenceasto the killing ofDuy Vu, respondent, in attempting to explain appellant’s acquittal on this charge, does note that “the witnesses to the shooting described the shooterastaller than appellant” (RB 95), but respondent does not identify any of these witnesses by name,offer any detail, or make clear that Ms. Mandy was among those whotestified that the shooter was muchtaller than appellant. -5- Nor does respondent mention that Susan White said the shooter was 6 feet tall (20 RT 3862), that Sara Benigno puthis height at between 5'10" and 6' (21 RT 3920), and that at the May 31" lineup, Johnny Gammoh and Mary Martina identified someone other than appellant (20 RT 3770-3771 & 3776- 3777, 21 RT 3924-3925). Thus, respondenthasfailed to ““summariz[e] all ofthe operative facts, notjust those favorableto their clients,” and it has failed to present “the whole record— i.e., the entire picture ofthe defendant put before the jury.” (Lewis | v. County ofSacramento, supra, 93 Cal.App.4th at p. 113; People v. Johnson, supra, 26 Cal.3d at p 577, original emphasis.) Respondentconcludesits review ofthe evidencerelated to Counts 11 and 12 with a three-page discourse that (1) proposes four reasons that the ‘jurors most likely acquitted appellant” of these offenses, (2) attempts to explain away two (but only two) ofthese reasons, and (3) reiterates various inferences the prosecutor sought to draw that supposedly “linked appellant to the Duy Vu shooting.” (RB 95-98.) Appellant believes only one of these matters warrants a reply: respondent’s efforts to explain away the height discrepancies. Those efforts flout commonsense. The shooter wore a brownjacket, and police found a brownjacket at the Amarillo Street residence where the prosecution claimed appellant lived. Jeanette Mandy was shownaphotographofthe Amarillo Streetjacket, and as respondent admits, she “stated that was not the jacket worn by the shooter because the jacket worn by the shooter was longer and hada string in the waste [sic] area.” (RB 91. See 12 RT 2397-2398, 20 RT 3870-3871.) At trial, appellant donned the Amarillo Street jacket, and it was not particularly long and much too big for him. (See 20 RT 4270-4271, 4283-4284.) According to respondent, however, this ill-fitting jacket explains the discrepancy between appellant’s actual height and the witnesses’ descriptions -6- ofthe shooter’s height. First, respondent postulates that since appellant was 20 poundsheavierat trial than whenarrested, the jacket “would havefallen almost to appellant’s knees . . . at the time of the shooting.” (RB 96.) And second, “the oversize jacket explained why appellant seemed taller to the eyewitnessesthat he actually was.” (RB 97.) Both contentions defy common knowledge and experience. Losing 20 pounds would not noticeably change the level at which the bottom hem of a jacket would fall. After all, losing 20 pounds does not change a person’s height. And wearing an oversized jacket makes a person appear shorter than hereally is, nottaller.° In sum, and even putting aside the problemswith its basic approach to the record, respondent’s efforts to “explain”the height discrepancyare flawed as a matter of commonsense. ° These points are drawn from common knowledge,but they can be readily verified. “A loose fit on a short man actually emphasizeshispetite frame.” (Dressing Taller: 10 Tipsfor Short Men (June 7, 2011), viewable at http://artofmanliness.com/2011/06/07/dressing-taller-short-men/ (as of 10/24/11). See also Rovny, Fashion Tips For Short & Tall Men, viewable at http://www.askmen.com/fashion/fashiontip/31_fashion_advice.html (as of 10/25/11) [“Tips for Shorter Men . . . Clothes needto fit perfectly; wearing something tight or loose will emphasize your physical flaw.”].) And whenit comesto leatherjacketsin particular, the advice for men under 5'8"is to “[g]o for trimmer bodies and trim sleeve styles to help lengthen your body.” (Au, Tips for dressing your short and stylish guy (6/13/06), viewable at http://today.msnbc.msn.com/id/13265966/ns/ today-fathersday_giftsgrillinggadgets_and_more/t/tips-dressing-your-sh ort-stylish-guy/ (as of 10/24/11).) -7- GUILT-PHASE ISSUES AND ARGUMENTS THE MURDER COUNTS (Counts 6-7 and Counts 13-14) I. COUNTS6 & 7 (relating to the February 5, 1995 shooting death of Sang Nguyen) On February 5, 1995, Sang Nguyen, a Cheap Boys gang member, was shot to death outside of the Dong Khanh Restaurant in Westminster. The issue at trial was whether appellant was the shooter. No physical evidence tied him to the crime, and the only independent eyewitness — the only one with no ties to Sang or the Cheap Boys or any other gang — identified someoneother than appellant as the shooter. The inculpatory evidence came from two of Sang’s dinner companions, gang members or associates who, although they had independently told mutually corroboratingstories that did | not implicate appellant, eventually came up with entirely new versions of events and claimed to have seen appellant do the shooting. In the AOB, appellant has raised numerous challenges to his convictions related to this shooting, Counts 6 and 7. (AOB 82-122.) 1. COUNTS6 & 7 MUST BE REVERSED BECAUSE OF THE IMPROPER ADMISSION OF ALLEGED EXPERT TESTIMONYAS TO WHAT EXCUSES ARE MOST COMMONLY OFFERED BY PURPORTEDLY RELUCTANT WITNESSES TO GANG CRIMES COMMITTED AT RESTAURANTS Attrial, the prosecution was allowedtoelicit testimony from its gang expert, Detective Mark Nye,to the effect that, in his experience, when people “don’t want to cooperate” with police whoare investigating gang crimes in cafés and restaurants, the “most common excuse” given is, ““I was in the bathroom at the time.’” (17 RT 3324-3325.) As appellant argued in the AOB, -8- this testimony, relyingas it did upon speculative mind-reading, wasirrelevant, unreliable, and inadmissible for multiple reasons. (AOB 82-92.) Appellant has also arguedthat, in light ofthe particular facts ofthis case and the context in which the error occurred, a reversal of the judgment is required as to Counts 6 and 7. (AOB 92-95.) Respondent disagrees that error occurred or that any error was prejudicial. (RB 7-29.) Respondent is wrong on both accounts. A. ‘The Merits As the AOB pointed out, Detective Nye’s challenged testimony presented two propositions: (1) that, when a gang crime occurs at a café or restaurant, those persons whoclaim to have been in the bathroom are giving an “excuse” — 1.e., are not telling the truth — and (2) that the reason for giving the excuse is that they do not want to cooperate with the police. Respondent appears to contendthat neither proposition was“an opinion”but merely was an objective description of Nye’s “personal experience investigating gang crimes.” (RB 9.) This is plainly incorrect. Nye’s testimonythat people were making “common excuses”whenthey claimed to be in the bathroom — that the people were lying — was manifestly a conclusion drawn by Nye. It was an opinion about the veracity of those persons’ statements. Similarly, Nye’s claim that he knew the reasonfor the “excuses” was also a personal conclusion. It was his opinion about those persons’ motivations, about what was going on in their minds. These were not objective descriptions of observable facts, as respondent suggests. (Law Revision Commission Comments to Evid. Code, Div. 7 [encompassing Evid. Code, §§ 800-870] [“The word ‘opinion’ is used [in Div. 7] to includeall 6 RB 11. opinions, inferences, conclusions, and other subjective statements made by a witness.”’].) It is established that police officers do not “qualify . . . as experts in judgingtruthfulness,”norare they “qualified to testify about the motivations or cognitive processes ofthose whose behavior[they] observe[].” (Peoplev. Sergill (1982) 138 Cal.App.3d 34, 39; People v. Robbie (2001) 92 Cal.App.4th 1075, 1087.) And testimony as to “a generalized tendency of some groups of witnessesto lie, unrelated to the credibility of the specific witnesses in issue,” is similarly “irrelevant.” (People v. Johnson (1993) 19 Cal.App.4th 778, 785.) Although these cases were cited repeatedly in the AOB,respondent doesnot address them, obviously because they cannot be reconciled with respondent’s arguments. (See also People v. Castaneda (2011) 51 Cal.4th 1292, 1336 [“‘expert’s opinion may not be based “on assumptions of fact without evidentiary support, or on speculative or conjecturalfactors ....”’”], quoting People v. Richardson (2008) 43 Cal.4th 959, 1008, further internal citations omitted.) Respondentalso asserts that “Nye based his challenged testimony on matters perceived by or personally knownto him, or made knownto him ator before the hearing.” (RB 11.) However, personal conclusions about veracity and motivation do not amountto matters “perceived by or personally known to... or made known to” Nye. (See Evid. Code, § 801, subd. (b).) If they did, then nothing would prevent Nye or somefuture “expert” from getting on the witness stand and opiningthat, in his or her experience, the most common thing defendants do when they testify — or when they are interrogated by police — isto tell false stories to avoid admitting their guilt. It is telling that respondent does not offer a single case that would specifically support the admission ofDetective Nye’s challenged testimony. Indeed, other than citing cases for general propositions that are largely -10- undisputed, respondent merely cites one decisionthat distinguishes one ofthe casesthat appellant cited. The AOB quoted People v. Meltonforits holding that an investigator is not “an expert on judging credibility, or on the truthfulness of persons who provide him with information in the course of investigations.” (See People v. Melton (1988) 44 Cal.3d 713, 744, quoted at AOB87,89.) In its brief, respondent says People v. Padilla (1995) 11 Cal.4th 891, 947, “distinguish[ed]” Me/ton (see RB 11-12), but nothing in Padilla “distinguished” Melton with respect to the language upon which appellant relied, and respondentdoes not explain its purported distinction further. Thus, the primary case authorities cited by appellant (Sergill, Robbie, Johnson) remain unaddressed by respondent, and the remaining case is not even arguably distinguished on the basis respondent proposes. Padilla is irrelevant in any event, for it involved the scope of the prosecution’s right to examine an officer who had been asked by the defense about a witness’ “reputation for being untruthful.” (See 11 Cal.4th at p. 947.) That context has nothing to do with the currentissue. Respondent may be implyingthat there is some difference between an expert opinion aboutthe credibility of“a particular witness’s veracity at trial” (RB 11) and an expert opinion aboutthe credibility of persons who do not appear as witnesses at the trial. If this is respondent’s point, however, respondentdoes not explain what the difference would be, and neither Padilla nor logic would support it. Respondentlater alludes to the prosecutor’s contention below that the “most common excuse”testimony wasa responseto appellant havingelicited from Detective Nye the fact that Trieu Binh (“Temper”) Nguyen and Linda Vu had told Nye on the night in question that Trieu Binh had been in the bathroom andthat neither had seen the shooting. (RB 12, citing 16 RT 3233- 3239.) Buta party cannot dispense with the rules of evidence just because -|1- testimony unfavorableto it has been broughtout by the other side. The door is not thereby opened to the admission of irrelevant, unreliable, and unduly confusing and misleading evidence. B. Alleged Forfeiture of Federal Constitutional Claims Respondentasserts that appellant’s federal constitutional claims should be forfeited because they are “being made for the first time in this Court.” (RB 10.) However, as this Court has repeatedly held, a constitutional claim is not forfeited on appeal when “the new arguments do not invokefacts or legal standardsdifferent from those the trial court was asked to apply, but merelyassert that the trial court’s act or omission, in addition to being wrong for reasons actually presented to that court, had the legal consequence of violating the Constitution.” (People v. Gutierrez (2009) 45 Cal.4th 789, 809.’) Indeed, this principle is set forth in the very cases respondentcites, though respondent does not mention it. (See People v. Geier (2007) 41 Cal.4th 555, 610-611; People v. Halvorsen (2007) 42 Cal.4th 379, 408 fn. 7.) Theprinciple applies to the constitutional claims at issue here, and respondent does not claim otherwise. (See also, e.g., People v. Carey (2007) 41 Cal.4th 109, 126-127 [Evid. Code, § 352 objection preserves constitutional claims on appeal]; People v. Coddington (2000) 23 Cal.4th 529, 632 [similar].) C. Prejudice By any objective assessment, the prosecution’s case against appellant with regard to the killing of Sang Nguyen was a close one: (1) no physical evidencetied appellant to the crime; (2) the lone independent eyewitness — 7 Quoting People v. Carasi (2008) 44 Cal.4th 1263, 1289 footnote 15 and People v. Boyer (2006) 38 Cal.4th 412, 441 footnote 17. Accord, e.g., People v. Verdugo (2010) 50 Cal.4th 263, 277 footnote 5; People v. Loker (2008) 44 Cal.4th 691, 704 footnote 7; People v. Lewis (2006) 39 Cal.4th 970, 990 footnote 5. -12- the only one with noties to Sang, the Cheap Boys,or any other gang and who had no reasonto favor the defense— identified someoneother than appellant as the shooter, described the shooter as considerablytaller than appellant, and failed to identify appellant either in a photo lineup orin court; (3) on the night ofSang’s death,the other witnesses— Sang’s dinner companions— notonly denied seeing the shooting, but each independently told the police that Trieu Binh (““Temper’’) Nguyen wasin the restaurant’s bathroom atthe time (andall but one placed Binh Tranthere, as well); and (4) these other witnessesstarted changing their stories only after Trieu Binh had had weekly phone conversations with Khoi Huynh,one ofthe Cheap Boys AOB§1.1.C, pp. 92-93.) shot callers.” (See The case was, obviously, a very close one, and with the inadmissible testimony from Detective Nye going directly to the key question of the credibility of the dinner companion eyewitnesses, the question of prejudice should be easy to resolve, under both the federal and state constitutions. (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818. See also, e.g., People v. Gonzales (1967) 66 Cal.2d 482, 494 [in close case, “any substantial error tending to discredit the defense, or to corroborate the prosecution, must be considered as prejudicial.”]; People v. Lawson (2005) 131 Cal.App.4th 1242, 1249 [similar].) Respondent, ofcourse, argues that any error in allowing the admission of Detective Nye’s challenged testimony was harmless. Respondent does not — and cannot — allege that the evidence against appellant was overwhelmingorthat the error wasirrelevant to the central issue of witness credibility. Rather, the claim is that “appellant cannot show that different verdicts would have been reasonably probable hadthetrial court excluded the challenged testimony.” (RB 13. See also RB 29 [similar].) Respondent supports this claim with a lengthy discussionofthe evidence,a discussionthat -[3- is not only improperly prosecution-favorable butis also frequently inaccurate. (RB 13-29.) 1. Respondent’s Approach to the Question of Prejudice Is Wrong at a Fundamental Level First, respondent’s approach to the question of prejudice is fundamentally defective. Respondentdiscusses the evidence exactly as ifthe question were whetherthereis substantial evidence to support the convictions, whenactually the questions are whetherthereis “a reasonable chance, more than an abstractpossibility”that a different outcome would have occurredin the absence of the error® and whether respondent can “prove beyond a reasonable doubtthat the error complainedofdid not contribute to the verdict obtained.” Usingits prosecution-centric approach, respondent offers excuses or explanations in an attempt to brush away evidencethat is defense-favorable or prosecution-adverse, and it deals with contested evidence asif this Court were required to adopt the version most favorable to the prosecution. Thus, for example, respondent downplaysthe testimony ofCharles Hall (the witness with noties to the Cheap Boys) byasserting that “[o]ne can understand why” Hall madenoin-court identification of appellant. (RB 18.) And respondent simply proclaims,ipse dixit, that the other witnesses—the dinner companion witnesses — were “lying”in their original statements to the police and “gave credible explanations”at trial for having done so (RB 19, 21, 23, 24, 29). Similarly, when addressing the fact that Trieu Binh (“Temper”) Nguyen gave different versions ofeventsto the police even after he changedhis story about being in the bathroom,respondentoffers, in part, the explanation that “Trieu’s 8 College Hospital v. Superior Court (1994) 6 Cal.4th 704, 715, original emphases. , Chapman vy. California, 386 U.S. at page 24. -14- first language was Vietnamese” and the detective was speaking to him in English. (RB 25.) This one-sided approach to the question of prejudice permeates respondent’s discussion of the issue, but it 1s fundamentally the wrong approach. “Thereis, as former ChiefJustice Roger Traynorhas observed,‘a striking difference between appellate review to determine whether an error affected ajudgmentandthe usual appellate review to determine whetherthere is substantial evidence to support a judgment.’” (People v. Arcega (1982) 32 Cal.3d 504, 524, quoting Traynor, The Riddle of Harmless Error 26-27 (1970).) “In appraising the prejudicial effect oftrial court error, an appellate court does not halt on the rim of substantial evidence or ignore reasonable inferences favoring the appellant.” (People v. Butts (1965) 236 Cal.App.2d 817, 832.) Rather, the reviewing court looks to the whole record, including defense-favorable evidence and including problems with the prosecution’s witnesses. (People v. Russell (2006) 144 Cal.App.4th 1415, 1433 [Watson prejudice found because evidence not “so overwhelming that a rational jury could not reach a contrary result’; People v. Randle (2005) 35 Cal.4th 987, 1004 [reversal where “the evidence was . . . susceptible of the interpretation” favoring the defense]; People v. Giardino (2000) 82 Cal.App.4th 454, 467 [Watson prejudice found “because the evidence supports conflicting conclusions”]; People v. Arcega, 32 Cal.3d at p. 524 [reversal called for where evidence “is open to the interpretation” that defendant not guilty of charged offense].) Essentially the same approach is taken when,as here, there is federal constitutional error. “The question is whether, on the whole record . . . the error... [is] harmless beyond a reasonable doubt.” (Rose v. Clark (1986) 478 U.S. 570, 583, internal quotation marks omitted.) Two Supreme Court decisionsare particularly illustrative: Neder v. United States (1999) 527 U.S. -|5- 1 and Delaware v. Van Arsdall (1986) 475 U.S. 673. In Neder, the High Court held that an error could be found harmless under Chapmanifthe matter to which the error pertained was “uncontested and supported by overwhelming evidence, suchthatthejury verdict would have been the same absent the error.” (Neder, 527 U.S. at p. 17; see also id. at p. 19 [asking “whether the record contains evidence that could rationally lead to a contrary finding with respect to” the matter in question].) Similarly, in Van Arsdall, which involved the improper denial of a defendant’s opportunity to impeach a witness, the Court held that“t]he correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” (475 U.S. at p. 684.) | Obviously, since the correct prejudice inquiry does “not . . . ignore reasonable inferences favoring the appellant” but requires an assessment of whether the prosecution’s case was “so overwhelming that a rational jury could not reach a contrary result,” whether“the evidence supports conflicting conclusions” or whether there was “evidence that could rationally lead to a contrary finding” to the one sought by the prosecution, an appellate court cannotassessprejudice by looking solely to prosecution-favorable evidence in the record or drawing only prosecution-favorable inferences. Indeed, respondent’s approach to the evidentiary record and to the credibility questions posed by that record invites a violation of appellant’s Sixth and Fourteenth Amendmentrights to dueprocess, to trial by jury trial, and to present a defense. For example, to counter the defense contention that the changed dinner companionstories were the product ofa Cheap Boyeffort to frame appellant, respondentstates as fact that Trieu Binh Nguyen and Linda Vu,the two dinner companions whoattrial identified appellantas the shooter, were no long membersofthe Cheap Boysor the Cheap Boysaffiliated female -16- gang on the date ofthe shooting. (RB 14, 17, 20 [Trieu Binh Nguyen]; RB 14, 17-18 [Linda Vu].) As support for this repeated factual assertion, respondent simply cites the witnesses’ own testimony and/orpretrial statements claiming to have withdrawnfrom the gangpriorto that date. (/bid.) But, even ignoring the record-specific reasons for doubting these gang-withdrawal claims(see Subsection 2.c., pp. 22 et seq., post), the jury was not obligated to believe either witness’s claim to have left the gang. (See, e.g., Beck Dev. Co. v. Southern Pac. Transp. (1996) 44 Cal.App.4th 1160, 1204 [“so long as the trier of fact does not act arbitrarily and has a rational ground for doingso,it may reject the testimony of a witness even though the witness is uncontradicted.”]. See also, e.g., People v. Hoang (2006) 145 Cal.App.4th 264 275-276 [“The jury wasentitled to disbelieve defendant’s testimony that he did not knowthe individuals in the other car”.); People v. Johnson (1980) 26 Cal.3d 557, 579 [similar].) Nor can this Court make such credibility determinationsas a basis for finding that the erroneous admission ofDetective Nye’s opinion testimony did not improperly influence the jury’s verdict. To do so would be to usurp the role of the jury and deprive appellant of his right to have a jury make credibility determinations and to accept or reject appellant’s defense on the basis of properly admitted evidence. It is well established that appellant has a “Sixth Amendmentright to have essential facts found by a jury beyond a reasonable doubt.” (Dillon v. UnitedStates (2010) 130 S.Ct. 2683, 2692. See also, e.g., Apprendi v. New Jersey (2000) 530 U.S.466, 483-484 [discussing “the [constitutional] requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond reasonable doubt”]; People v. Melton, 44 Cal.3d at p. 735 [jury has the “exclusive function as the arbiter of questionsoffact and the credibility of witnesses”’].) The credibility of key witnesses such as those under discussion here was -17- clearly an “essential fact.” Their credibility is thus a fact entrusted to the jury by constitutional rights to a jury and to due process. (See also Cavazosv. Smith (2011) ___ U.S. ___, 132 S.Ct. 2, 4 [“it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted attrial.”]; Blakely v. Washington (2004) 542 U.S. 296, 308 (“the Sixth Amendment. . . limits judicial power . . . to the extent that the claimed judicial power infringes on the province of the jury.”]; Pirtle v. Morgan (9" Cir. 2002) 313 F.3d 1160, 1174 [“weighing of evidence and credibility determinationis for thejury.”]; Barker v. Yukins (6Cir. 1999) 199 F.3d 867, 874-875 [Sixth Amendment “prohibit[s] judges from weighing evidence and making credibility determinations, leaving these functions for the jury.... Itis neither the properrole for a state supreme court, nor for this Court, to stand in the place of the jury, weighing competing evidence and deciding that some evidenceis more believable than others.”]; United States v. United States Gypsum (1978) 438 U.S. 422, 446.) Thus, respondent’s lengthy one-sided and cherry-pickedrecital ofthe facts that ajury could (perhaps) have foundis largely irrelevant to the task of evaluating the prejudicial impact of the errorat issue here. However, because respondent’s discourse is potentially misleading and maydivert the reader from the actual closenessof the case, appellant in the remaining subsections of his Claim 1 Reply will address manyofthe errors, omissions, and mischaracterizations that appear in Respondent’s Brief and that preventthat brief from beinga fair portrayal ofthe record with regard to the question of prejudice. Becauseofthe unusual length ofrespondent’s argument, petitioner’s reply must, unfortunately, be unusually lengthy as well. The length ofthe two sides’ presentations, however, should not obscure the telling fact that respondent nevereven hints that the error here was harmless undera correct -18- approachto the prejudice issue. On this record, no such contention would be remotely tenable. This was a close case by any reasonable assessment, and the error wentdirectly and pointedly to the key question of credibility. The error cannot be found to be harmless under any arguably proper standard. 2. Respondent’s Discussion of the Factual Record Is Flawed in Multiple Ways Respondent’s prejudice argumentis suffused with problems. Some are the result of respondent’s fundamentally flawed approach. Someare not. a. Charles Hall, the Lone Independent Witness Charles Hall, the only witness with no ties to Sang Nguyen and the Cheap Boys, did not identify appellant in court or in a photographic lineup and in fact had selected someoneelse’s picture from the photo lineup and gave a description of the perpetrator that was inconsistent with appellant. Respondentoffers several reasons for downplayingthe significance ofHall’s evidence,all of which are wanting. 1, As for the difference between Mr. Hall’s estimate of the perpetrator’s height (5 feet, 10 inches) and appellant’s height (5 feet, 2 inches), respondent says Hall “was just guessing about the gunman’s height and did not know how muchshorter the gunman wasthan himself.” (RB 18, citing 11 RT 2100.) Respondent mischaracterizes Hall’s testimony. The colloquy in question wasas follows: “Q. You indicated he wasAsian,in his early to mid twenties. Do yourecall about howtall this person was? “A. Myheight or shorter. “Q. Howtall are you? “A. Five ten. “Q. He wasfive ten or maybea little shorter? -19- “A. Yeah. “Q. About how muchshorter? “A. Hard tosay. “Q. Would it be an inch or two? “A. Maybe. “Q. You're guessing now, right? “A. Yeah.” (11 RT 2100.) Asthe above quotation shows, Hall was not guessing when he gave the 5-feet, 10-inches testimony. He wasonly guessing “now,”i.e., when he was saying that “maybe”the perpetrator wasan inch or two shorter than 5 feet, 10 inches. Hall was not “guessing about the gunman’s height” except to this limited — andlargely irrelevant — extent. 2. As for the photographic lineup in which Hall selected the photograph of one Bao Quoc Tran ten days after the shooting, respondent points to Hall’s testimony that he was “sure that [he] said that [he was] not certain”and that he thought the photo “looked kind oflike” the shooter. (RB 18; see 11 RT 2101, 2103.) Respondentfails to mentionthat, accordingto the officer who showed him thelineup, Hall pointed to Bao’s photograph after a “pretty brief” time and said, “Lookslike the guy whodid the shooting.” (23 RT 4460.) Hall madeno additional statement about his identification but did put his signature above Bao’s image and drew line from the signatureto the image. (23 RT 4460-4461, 4462; Exh. RR.) The jury was obviously entitled to find that the officer’s testimony was the more accurate characterization of the lineup identification process. -20- 3. When, four months after the shooting, Hall was shown a photographiclineup that contained appellant’s photograph, Hall did not select anyone as resembling the shooterbutstated that he thought he could recognize the shooter from a side profile because he had only gotten side profile view of the shooter. (23 RT 4461-4462.) Respondent emphasizes the “side profile” statement (RB 19) but fails to note that the police never attempted to show Hall a side-profile photograph thereafter, nor did they have him view appellant (or anyone else) in a live lineup, where Hall could have seen a profile in the flesh. And, it bears noting, the absenceof a profile image had not prevented Hall from selecting Bao Quoc Tran’s photograph in thefirst photographic lineup. 4, In court, Hall did not recognize anyone as the shooter (11 RT 2103), a fact that respondent attempts to dismiss by suggesting that we “should understand” that Hall “had never seen the gunman before the shooting”three years earlier. (RB 18.) However, given the considerablytaller shooter that Hall had described, given Hall’s identification ofBao Quoc Tran in the first photo lineup, and given Hall’s failure to select appellant from the later photo lineup, a jury could readily have concluded that a far more plausible explanation for Hall’s failure to identify appellant in court wasthat appellant did not resemble the shooter Hall had seen. And,it bears noting, the prosecution again made no attempt to have Hall look at appellant’s profile. b. The Dinner Companion Witnesses and Respondent’s Claim That They Gave “Credible Explanations”for “Lying”to the Police on the Night of the Shooting In addition to the testimony ofMr. Hall, the other difficult problem for respondent’s harmlessness argumentis that all four of the dinner-companion witnesses independently told police on the night in question that none ofthem had seen the shooting and that Trieu Binh Nguyenhadbeenin the bathroom -2]- at the time. Respondent’s primary way of dealing with this problem is to contendthat “[a]ppellant overstates the degree to whichthe police statements given by Sang’s dinner companions underminedthe prosecution’s case.” (RB 19.) This assertion is, on its face, difficult to credit. Respondent admits, for example, that Trieu Binh told police “he had been inside the bathroom at the time of the shooting.” (/bid.) Such a statement, if credited, would entirely undermineTrieu Binh’s trial testimony that he was outside the restaurant and saw the shooting and the shooter. What respondent appears to be contending here is that the dinner companions were “lying”to police on the night of the shooting andthat they “gave credible explanations”attrial for having doneso. (RB 24.) In the ensuing subsections, appellant will address the supposedly “credible explanations” that respondentrelies on as to the various individual dinner companions. Now, appellant simply emphasizes that all of respondent’s “credible explanations” —- and, indeed, virtually all of respondent’s harmless error arguments, here and in subsequent claims — suffer from the overriding flaw we have pointed out. They depend uponthis Court taking a one-sided, sufficiency-of-the-evidence-type approach to the question of prejudice, an approach that is inconsistent with the Sixth and Fourteenth Amendments and with established state and federal law. However, as wewill now show,this Court cannot find give dispositive weightto the “credible explanations” under any reasonable approach. c. Dinner Companion Trieu Binh (“Temper”) Nguyen Trieu Binh (“Temper”) Nguyen wasthefirst ofthe dinner-companion witnesses to change his story, and he wasone ofthe two who cameto identify appellant as the shooter. -22- 1, Respondentstates that Trieu Binh “was no longer a Cheap Boy gang memberon February 5, 1995,” the night of Sang Nguyen’s killing. (RB 14.) Trieu Binh didso testify, effectively claiming that he had stopped being a Cheap Boy memberjust before that date (7 RT 1259, 1270), but the jury had ample reason to disbelieve his testimony. Not only did other witnesses describe him as a Cheap Boyevenasofthe time oftrial (10 RT 1973 [Khoi Huynh], 11 RT 2198 [Linda Vu]), but in the months following the shooting, Trieu Binh discussed gang affairs in weekly phone calls with Cheap Boys “shotcaller” and “core member” Khoi Huynh (7 RT 1262-1263 [Trieu Binh], 17 RT 3316 [Det. Nye]). And when Trieu Binh first went to the police with his new story about having witnessed the shooting, Detective Nye asked him if he was coming forward “because you’re a gang member,” to which Trieu Binh responded, “Right.”'’ (7 RT 1339-1340.) 2. Respondent arguesthat Trieu Binh “gave credible explanations” for his initial statements to the police, in which he hadsaid he had not seen the shooting. (RB 24.) What were those “credible explanations”? According to respondent, they were Trieu Binh’s testimonial claim that he had been “confused”at that time because “he was caught between the alternatives of (1) obeying gang subculture code by refusing to become a ‘rat’ and (2) helping his friend.” (RB 24, 19-20, citing 7 RT 1346-1347.) Respondent is parroting the prosecutor’s position below, but no jury was required to acceptit, especially since it was not Trieu Binh’s first or only “explanation” for his earlier statements. Under thesecircumstances, it is extremely improbable that anyjury would have accepted the “explanation”relied on by 0 Even the prosecutorreferred to the Cheap Boysas “your own gang” and “fellow gang members” when she questioned Trieu Binh. (7 RT 1348.) In addition, Trieu Binh had told Detective Nye on the night of the shooting that he, Binh Tran, and Sang Nguyen were all Cheap Boys. (1*Supp.CT 154.) -23- respondentif the explanation had not been bolstered by something from far more credible-seeming source, namely, Detective Nye’s “most common excuse” testimony. On the night of the shooting, Trieu Binh told the police that he had been walking back from the bathroom atthe time the shots were fired and had not seen the shooting. (7 RT 1227-1228, 1249.) “I don’t know why or who or what causedit,” he told them. “I just don’t know.” (7 RT 1255.) Attrial, Trieu Binh maintained that this version wasa lie, but, hetestified, his “lie” wasnot due to a fearoftelling them the truth. (7 RT 1257.) To the contrary, Trieu Binh wasaffirmatively “interested in getting the person whoshot Sang.” (7 RT 1255.) Trieu Binh’s initial explanation for lying was, “I was confused. This happensofast. I didn’t have a chance to think. Depressed.” (7 RT 1228.) Thereafter, the prosecutor led Trieu Binh to agree that on the night of the shooting, he was“still within the gang subculture, in other wordsdid not want. to rat” (7 RT 1236), but when asked on cross-examination about his statements onthe night ofthe shooting, Trieu Binh’s testimony was,first, that he had been “confused” and, then, that he had been “[n]ot confused, but I was — I didn’t havea brain to think at that time. I didn’t think whatto say.” (7 RT 1248-1249.) Thereafter, he testified that he had been “confused.” (7 RT 1250, 1251.) And after that, his testimony wasthat the “only reason” he lied was that he was “frustrated.” (7 RT 1253.) No, “confused and frustrated.” (7 RT 1254.) No,“frustrated, not confused.” (7 RT 1255.) He did not wantto “rat,” but he was “interested in getting the person who shot Sang,”and he wasnot afraid to help the police, nor washe afraid that someone would comelooking for him. (7 RT 1255, 1257.) | Thereafter, Trieu Binhtestified it took him three or four months—the period of his weekly telephone conversations with Cheap Boys shot-caller 24. Khoi Huynh—to become “unconfused and unfrustrated”and to tell Detective Nyethat the shooter was appellant. (7 RT 1262-1263, 1258.) Then,finally, on the prosecutor’s redirect examination, Trieu Binh offered the explanation that he had been “confused” because he was caught betweenthe police and a fear that something might happen to him. (7 RT 1346.) The bottom line is this: no jury is ever required to accept a witness’s “explanations” of his prior inconsistent statements as “credible” — and certainly, an appellate court cannot assumethat it would—but the cold record of Trieu Binh’s “explanatory” testimony provides ample reasons why appellant’sjury— or any reasonable, uncontaminatedjury—would not have doneso. Moreover, Trieu Binh himselffurnishedstill more reasonsto doubt his credibility: he lied about his membership in the Cheap Boys(see preceding discussion), and he changedhisstory significantly even after he came forward with his “truthful” claim that he saw appellant do the shooting (see discussion in the subparagraph3, next). And whenoneaddsinto the mix the indisputable fact that Trieu Binh’s initial statementto police that he had beenin the bathroom was corroborated independently by the contemporaneous statements ofeach ofthefour other dinner-companion witnesses, there remains not the remotest support for the argumentthat, on appeal, this Court can, must, or should conclude that Trieu Binh gave “credible explanations”for “lying”in his initial statements to the police. Nor would the Constitution permit this Court to make such a judgment. Detective Nye’s inadmissible testimony about the “most common excuses” given by personsat the scene of a gang crime committed at a restaurant went directly to this crucial “credible explanations”issue. It cannot be deemedto be harmless. -25- 3. When, in the three-way phone call with Khoi Huynh and Detective Nye, Trieu Binh first came forward with his new story inculpating appellant, he told Nye that he had seen appellant walk inside the restaurant, hit Sang Nguyen,andsay “Let’s go outside.” (7 RT 1318-13.) Attrial, Trieu Binh’s version was quite different. At trial, Trieu Binh said Sang came outside the restaurant and offered his hand to appellant, who thereuponfired a shot. (7 RT 1219-1220, 1223.) Respondent seeks to downplay Trieu Binh’s former version by asserting that “Trieu’s first language was Vietnamese while Nye’s was English.” (RB 25, citing 7 RT 1343.) This sentenceis literally accurate — Vietnamese was Trieu Binh’s first language — but this hardly amounts to an undisputed or indisputable explanation for the discrepancy in Trieu Binh’s story. Detective Nye did not know what Trieu Binh wasgoingto say in the phonecall. It was Trieu Binh himselfwhovoiced the “let’s go outside”story. Is respondent suggesting that Trieu Binh’s facility with English was so poor at the time ofthe phonecall with Nye that he would say appellant had walked inside the restaurant, hit Sang, and said “Let’s go outside” when heactually meant that Sang met appellant outside, offered a handshake, and then was shot? Is respondent suggesting that Trieu Binh’s English had improved so greatly by the timeoftrial that only his trial version is to be credited? If so, where is the evidence for any of this? Neither Trieu Binh nor any other witness made any such claims. Respondent is simply groping around and inventing a wildly prosecution-favorable inference in order to reach the conclusion that the improper admission of Detective Nye’s “most common excuse”testimony was harmless. There is no legitimate factual or legal basis on which this Court may do the same.” a And given that it was Trieu Binh whodisclosed his new story (continued...) -26- Respondentalsoasserts that there was “no real discrepancy” between the account that Trieu Binh gave Nyeandthestory hetold at trial. (RB 25.) According to respondent, there is “no real discrepancy” because Trieu “explained”attrial that at the time he gave each version,he “recalled on both occasionsthat appellant and his companions had walked upto the front door ofthe restaurant, rather than throughthe front door.” (RB 25-26, citing 7 RT 1317-1319.) However, Trieu Binh gave no testimony about having the same memory on “both occasions.” His testimony was that what he had told Nye in the phone call was wrong,that it “didn’t happen like that.” (7 RT 1319.) Respondent has again invented a prosecution-favorable “explanation” for Trieu Binh’s inconsistency. Trieu Binh did later seem to claim that when he told Nyethat appellant “walked inside the Dong Khanh Restaurant” and told Sang to “go outside,” these events actually occurred “outside” the restaurant door (though he thereafter amended this again to say the events took place “right where the door is”). (7 RT 1319-1320, 1322-1323, 1325.) No jury was required to accept any of these versionsas true, nor can this Court decide among them. Certainly, a jury was entitled to disbelieve that the shooter said, “Let’s go outside” if he and Sang were outside already. And beyondall this, the “explanation” that respondent has come up with for Trieu Binh’s differing stories inculpating appellant fails entirely to account for the disappearanceattrial of the punch that Trieu Binh had told Nye that appellant had thrown while tnside the restaurant. "C..continued) during the three-way call, appellant does not understand the relevance of respondent’s reference to Nye being an English-speaker. -27- d. Dinner Companion Linda Vu Linda Vu was the other dinner-companion witness who eventually identified appellant as the shooter after having initially told the police that Trieu Binh Nguyen had been in the bathroom andthat she had not seen the shooting herself. Respondent discussesvarious aspects ofLinda’s testimony but never explicitly articulates the reasoning process by whichits discussion fits within the federal or state prejudicial-error analysis. As best as appellant can determine, respondent’s underlying reasoning mustbe that the cold record establishes that Linda’s trial testimonyis so incontestably credit-worthy, and her deficiencies and inconsistencies so credibly explainable, that this Court can tell the testimony did not need to be bolstered by Detective Nye’s improperly admitted opinion testimony. The very process ofarticulating respondent’s underlying reasoning showsits fallaciousness. But it is also deficient factually. 1. Asindicated, Lindatold officers on the night ofSang Nguyen’s death that she did not know what had happenedoutside the restaurant, she did not see the shooting, and she had no idea whoshot Sang. (11 RT 2208-2209, 16 RT 3239.) She also said that Trieu Binh Nguyen and Binh Tran were in the bathroom whenthe shots werefired. (16 RT 3239.) Linda gavethepolice her word that she wastelling the truth, and when she wasasked if she was intimidated by gangs,shesaid she was not, andshestarted laughing. (11 RT 2209, 2235-2236.) The detective asked Lindaif she was willing to tell the truth if she knew it, and shereplied, “Yeah, I would if I knew it.” (11 RT 2236.) Respondent essentially contends that the jury must have accepted Linda’s trial testimony that she had been lying when she made these statements and that the reason she lied was because “she knewthat in the gang subculture it was not good to become an informant” and “she feared -28- retaliation and feared something would happento her daughter.” (RB 23-24, citing 11 RT 2258-2259, 2223.) However, respondentoffers no justification beyondipse dixit for its contention. And (1) given the inconsistency between Linda’s trial claim ofhavingbeenin fear during the interview and her actual light-heartednessat the time, (2) given Linda’s later admission to the police that she had been asked to come forward by “members ofthe Cheap Boys”— a fact that respondent declines to address (see 17 RT 3321) — and(3) given (again) the fact that Linda’s original story placing Trieu Binh Nguyen in the bathroom at the time of the shooting was corroborated by all four other dinner-companion witnesses, few reasonable jurors would have readily credited her trial explanation for her changeofstory, not without the support of Detective Nye’s improperly admitted testimony. 2. As respondent notes, the AOB pointed out that Linda’s credibility wasalso called into question by the facts that (1) her description of the shooter’s height and “stocky” build did not fit appellant, (2) she insisted at trial that she had madea positive identification of appellant in a pretrial photo lineup whenin fact she had been uncertain, and (3) six monthsafter the shooting, she told police she thought the shooter wasa friend ofSang Nguyen from CYA, a male named Chinh. (RB 26, AOB 93 fn. 65.) Respondent claims there are “no significant discrepancies” in the record with respect to these matters (RB 26), but: ° Respondent never ventures any explanation as to how Linda’s description can be aligned with appellant. . Respondentnever explains how Linda’s claim attrial that she had madea “positive” photographic identification of appellate priorto trial (11 RT 2201) can be squared with the two separate statements she had madeat the photo lineup that “I don’t know if I picked the right guy” (11 RT 2202, 2204-2205). -29- And,as for Linda’s explanation for having mentioned the male named Chinh, respondent correctly points out that Linda’s claim at trial was that, on the night of the shooting, she hadinitially thought the shooter’s name was Chinh but that she “had just been guessing” and that she was told by Trieu Binh Nguyen the same night that the shooter was named Lam. (RB 27.) However, her testimonial claim of “just guessing” wascalled into doubt by the very specificity of the name she supposedly conjured up — Chinh — andheradded detail that Chinh was a friend ofSang Nguyen’s from CYA—particularly given that there was a male named Chinhin the Nip Family gang. (17 RT 3240, 3307.) Moreover, a jury’s doubts would only have increased because Linda’s trial claim that Trieu Binh told her on the night of Sang’s death that the shooter’s name was Lam was difficult to reconcile with her preliminary hearing testimonythat she had gotten the name “Lam” from “rumors.” (See 11 RT 2206.) Andif indeed, Linda had been told within moments of the shooting that the shooter’s name was Lam, why did she even bring up Chinh’s name when she was interviewed by Detective Nye six monthsafter the shooting? (17 RT 3240.) The upshotis that Linda Vu’s trial testimony wasnot so credit-worthy, and herdeficiencies and inconsistencies were not so credibly explainable,that this Court can legitimately conclude that appellant’sjury did not use Detective Nye’s improperly admitted opinion testimony to shoreit up.” Appellant notes in passing that respondentis not particularly accurate in saying that, when appellanttestified, he “acknowledged knowing Linda Vu from church (22 RT 4256), seeing her there twoorthree times (22 RT 4256) and seeing her at church carnivals when they were younger (22 RT (continued...) -30- e. The Remaining Dinner Companions: Trieu Hai Nguyen, Michelle To, and AmyPech Of the three remaining dinner-companion witnesses — Trieu Hai Nguyen, Michelle To, and AmyPech,all ofwhom told police on the night of the shooting that Trieu Binh Nguyen wasin the bathroom at the time ofthe shooting — two (Trieu Hai and Michelle) changedtheirstoriesat trial and claimed that Trieu Binh wasoutside at the time. Respondent uses the same approach in discussing these two “new story” witnessesas it did with Trieu Binh Nguyen and Linda Vu. That is, respondent presents their testimony in a light very favorable to the prosecution, thus assumingthey hadlied to police and that the explanations they offered at trial for having done so were “credible.” (RB 21-23, 24.) This approach is no morevalid here than it was for the earlier witnesses. Only a few additional points need be made here about respondent’s discussion, one as to each of the “new story” witnesses. One of the most significant facts that indicates that the dinner- companion witnesses weretelling the truth on the night of the shooting was that they all independently told the same story about who wasin the bathroom. In discussing Trieu Hai Nguyen’s testimony, respondent acknowledges Trieu Hai’s admissionthat he “did not have the time to get together with others and plan the lie because the police came so quickly after the shooting to interview them.” (RB 21-22.) Respondent seeks to undercutthe force ofthis testimony "(,..continued) 4257).” (RB 15.) Appellant never claimed “knowing” Linda, he merely thought(“I think’’) he had seen Lindabefore, “probably twice, three time” in total (and not, as respondent claims, two or three times at church). (22 RT 4256.) He believed he had also seen Linda at a church carnival when “she wasa kid,” but appellant had not goneto the carnival “for a long time.” (22 RT 4257.) In any event, Linda’s version ofher prior contacts with appellant were quite different. (7 RT 2158-2159.) -3]- by stating that, according to Trieu Hai, “he andhis brother [Trieu Binh] were interviewed by the police side by side,” from which respondentinfers that Trieu Binh “could therefore hear what [Trieu Hai] was saying when he told police thathis brother and Binh Tranwere in the bathroom whenthe gunshots werefired.” (RB 22.) There are at least four flaws in respondent’s suggested inference. First, ajury wasentitled to doubt that experienced police investigators would be so incompetentas to interview witnessessideby side, particularly in an investigation of a gang shooting. Second, as this Court has recently madeclear, “That an event could have happened, however, doesnot by itself support a deduction or inference it did happen.” (People v. Moore (2011) 51 Cal.4th 386, 406, original emphasis.) Thus, the fact that Trieu Binh could have heard Trieu Haitelling the police who wasin the bathroom does not support respondent’s inference that Trieu Binh didhear Trieu Hai’s statement. Moreover, there is nothing in the record to even hint that Trieu Hai madehis statement as to who wasin the bathroom before Trieu Binh madehis similar statement. Third, Trieu Binh himselfnever claimed to have heard what Trieu Hai told the police or to have followed his youngerbrother’s lead. Andfinally, on top ofall these problems, respondent cannot explain how the other dinner companion witnesses — none of whom wasalleged to have been interviewedwithin earshot ofTrieu Hai or each other—could have comeup with the samestory, placing the exact same two people — and only those two people, out of the half dozenof adults at the dinner table — in the bathroom at the time of the shooting. Thus, respondent’s effort to weaken the force of the mutually corroborating statements from the dinner-companion witnesses fails for -32- multiple reasons even if it were a valid appellate approach to the prejudice analysis, which it isn’t. As for Michelle To’s testimony, respondent seeks to bolster her credibility by pointing to her claim that she neverdiscussed her testimony with her boyfriend Trieu Binh. (RB 23. See 19 RT 3584-3586.) But Michelle also claimed that she did “not really” see Trieu Binh on a regular basis after the shooting in 1995. (19 RT 3585.) Her claim wasthat she could not estimate how often that she saw him in 1995, and she thought she saw him roughly once a week in 1996, and evenless in 1997. (19 RT 3596-3597.) It turned out, however,that she and Trieu Binh wereactually married for most of 1997 and werein each other’s companyon a daily basis during that time. (19 RT 3604-3605.) These deceptions by Michelle would have caused any reasonable jury to harbor strong doubts about her claim that she did not discuss her testimony with Trieu Binh. f. The Dinner Companions: Other Problems Respondent’s efforts to infuse dispositive credibility into the dinner companion witnesses’ newstories are primarily based uponthe testimony each witness gave to “explain” his or her own new story in isolation. But respondent also needs to find “credible explanations” for contradictions between the witnesses’ new stories. The mostsalient of these is that Linda Vu’s new story contradicted Trieu Binh’s new story by placing Trieu Binh inside thejammedrestaurant immediately after the shooting andbyattributing to him the statement that he merely “thought” Sang had been shot. (11 RT 2141, 2176, 2242-2243.) Respondentasserts that Linda’s testimony was “ambiguous and viewed in its proper context, did not contradict Trieu Binh Nguyen’s testimony.” (RB 27.) But Lindatestified at least six times that Trieu Binh, who wasby the -33- cashregister, said he “thinks”or “thought” Sang had been shot. (11 RT 2176, 2178, 2242-2243.) There was nothing “ambiguous” or “contextual” about this testimony. Respondent points to statements made by Linda on re-direct examination, in which she claimedthatafter the shooting, Trieu Binh told her that he had seen the shooting and that the shooter’s name was Lam. (RB 28.) Respondent apparent position is that this re-direct-examination testimony created an “ambiguity” or a “context” with respect to Linda’s earlier claims that Trieu Binh told her he “thought” Sang had been shot andthatin light of this “ambiguity” or “context,” Linda’s re-direct-examination testimony became so strong and unassailable as to overcomeanyprejudice from the improper admission of Detective Nye’s testimony. If this is respondent’s contention, it is practically self-defeating. Inconsistency in a prosecution witness’s testimony is a bedrock credibility issue, one for the jury to decide. It is not an issue that an appellate court can or may resolve. And normally, inconsistency is thought to detract from a witness’s credibility. It surely cannotbe used to find an error harmless under a properprejudice analysis.” 8 There were also discrepancies between Linda Vu and Trieu Binh Nguyen as to how the shooting that they supposedly witnessed took place. According to Trieu Binh,the assailant walked “pretty aggressively” toward the restaurant and, when Sang Nguyen emerged and extendedhis hand, shot him in the stomach. (7 RT 1214-1216, 1220, 1223, 1225.) But according to Linda Vu, the assailant looked through the restaurant’s window and, when Sang emerged, the assailant put him in a headlock. (11 RT 2123, 2133.) Appellant notes that respondent appears to misunderstand the record whenit claims that Lindatestified that Trieu Binhtold herthe shooter’s name“right after the shooting.” (RB 28.) Linda’s testimony wasthat Trieu Binh told herthis “after the shooting, when Iran back in....” (11 RT 2223.) Linda could not have run “backin”until after she had gone outside, seen Sang Nguyenlying on the ground, and stayed with him until help arrived in about | (continued...) -34- 3. Conclusion This is not a record from which this Court could reasonably reach the conclusion that, despite the error in the admission of Detective Nye’s “most common excuse”testimony, appellant’s convictions can be affirmed under the state or federal tests. The case against appellant was a very close one by any reasonable assessment, and the error wentstraight to the crucial question of the credibility ofthe key dinner-companion witnesses. Respondentis able to argue for a finding ofharmlessness only by taking a fundamentally incorrect approach to the entire prejudice question and by portraying the record in a one-sided and inaccurate manner. A reversal of Counts 6 and is called for under any standard. 8(...continued) two minutes. (11 RT 2141.) Thefact that Trieu Binh wasinsideat this later time is more consistent with him having been in the bathroom at the time of the shooting than with him being outside. It also bears noting that Trieu Binh himself nevertestified he gave Linda the nameofthe shooterthat night, or at any other time. Thus, the credibility of Linda’s claim in this regard wasitself very much in doubt. -35- 2. APPELLANT WAS UNCONSTITUTIONALLY BARRED FROM INTRODUCING EVIDENCE THAT THE CHEAP BOYS GANGHADA PLAN, MOTIVE, AND/OR OPPORTUNITY TO FRAME APPELLANT In the AOB, appellant has argued that the trial court erroneously precluded or significantly curtailed the defense’s efforts to show that the Cheap Boys had the motive and opportunity to frame appellant. The court did this (1) by precludingthe defense from showing, through Cheap Boy Tin Duc Phan, that the Cheap Boys hada specific motivation to engage in “ratting retaliation” because they believed that KyNguyen, aNip Family member, was “ratting” on a Cheap Boy (Lap Nguyen)and (2) by excluding evidence that Linda Vu, Khoi Huynh, and other Cheap Boysorassociates had been found at a Cheap Boys “crash pad”in January 1995. (AOB 96-111.) Respondent seeks to defend both rulings (RB 29-50), but its contentions are meritless. A. The Exclusion Of Evidence From Tin Duc Phan Thetrial court ruled that appellant could not inquire into Tin Duc Phan’s knowledge or beliefs about Ky Nguyen because the defense had committed a discovery violation. Specifically,the trial court relied upon the fact that the defense investigator (Daniel Watkins) had not “talk[ed] to [Tin] about that question” and thus had not put Tin’s evidence on the pointinto the report that had been turned overto the prosecution. (20 RT 3842-3843.) As the court explained,“I think that you’ve had adequate time to exploreallthe parameters that this witness can give to you. And if you don’t have it in a statement that you’ve given to opposing counsel during your interviews,I’m not going to permit counsel to pursue that. Especially when you don’t know what the answeris going to be.” (20 RT 3843-3844.) -36- Appellanthaspointed out that the trialcourt erred bothin finding that a discovery violation had occurred and in precluding Tin’s testimony as a sanction for the purported discovery violation. (AOB 100-105.) Respondent offers only a minimaldefense against these two points. (See Subsection3, pp. 46 et seq., post.) Instead, its main contentions are two-fold. First, it claims that the trial court had an entirely different reason for its ruling. According to respondent, the trial court based its ruling, not on a supposed discovery violation but on defense counsel’s alleged violation ofa purported agreement to limit his questioning ofTin Phan. Second,respondentoffers ajustification for the exclusion of evidencethatthetrial court did not rely on atall, namely, that the trial court “could... have acted within its discretion by excluding the proposed inquiry under Evidence Code section 352.” Neither contention has ‘any arguable merit. (Subsections 1 & 2, pp. 40 et seq., post.) 1. A Purported “Agreement” Respondent’s primary argumentis that the proffered testimony was excluded because defense counsel had “a previous agreement with the prosecutor” to limit his direct examination of Tin Phan to particular paragraph in defense investigator Watkins’ report of his interview with Tin. (RB 30. See also RB 30-31, 32, 39-40.) This argumentis incorrect on more than one level. Firstofall, there was no agreementasto the matter here at issue. In the course of discussing her objections, the prosecutor read the judge two different parts of Watkins’ report, the first having to do with statements Tin had made to Watkins about why Khoi Huynh had been shot and the second being the part that Respondent’s Brief quotes, dealing with Tin’s statements about “ratting” retaliation. (See 20 RT 3840, compare lines 2-6 with 17-26. See RB 31.) Asthe trial court found, it was only “the first part” that the prosecutor had objected to. (29 RT 3841.) Defense counsel himself stated he -37- merely agreed he would “nottalk[] about Khoi Huynh being shot. That’s whatI agreed to [and] I wasn’t getting there.” (20 RT 3841. See also 20 RT 3834 [defense counsel distinguishes between the part of the report that he “wasn’t going to ask” aboutandthepart dealing with “KyNguyen Nip Family is ratting on Cheap Boyin a separate incident.”].) Given this state of the record, the trial court drew the unavoidable conclusion that “there was not an agreementas to what was permissible and what was not.” (20 RT 3841.) Respondent conveniently omits any mention of the court’s statement, although respondent does summarize what the prosecutorand defensecounselsaid immediately before and immediately after it. (RB 31-32.) In short, then, the foundational premise for respondent’s “agreement” contention is wrong. There was “not an agreement” of any sort with regard to the matter here at issue. (20 RT 3841.) This flaw disposes ofrespondent’s “agreement” contention byitself. | But even if defense counsel had made the agreementthat respondent hasposited, that would not aid respondent. Respondentdoesnotcite a single authority to support the notion that an informal agreementofthe sort that respondent hypothesizes here can ever be made binding on the defense,let alone under the circumstanceshere at issue. For here, not only was there no consideration for the “agreement,” but just before Tin Phan wasto take the stand, the prosecution interviewed him and learned he was “going to go sideways” with respectto the ratting-retaliation statements he had made to investigator Watkins. (20 RT 3828.) And indeed, whenhetestified, Tin did “go sideways.” Hefirst claimed he had norecollection about having told Watkins about the Cheap Boys’plan for ratting retaliation against appellant 38- (20 RT 3835), and then, on cross-examination, he denied any such plan had been formulated (20 RT 3836-3838). Boiled downto its essence, then, respondent’s contention is that by (supposedly) agreeing to limit its inquiry ofTin Duc Phanto what Tin told the defense investigator about ratting retaliation, the defense thereby precluded itself from impeaching Tin when hereversed himself on this very subject at trial. That would be an absurd agreement for any defense counsel to enter into, and there is not the slightest hint in the record that appellant’s counsel did so here. It would also be an equally absurd proposition of law for the courts to agree with, because the truth-seeking function ofa trial would be seriously underminedifa party is prevented from impeaching a witness who comes up with a newstory for the first timeat trial. Thus,it is not surprising that respondent cannot cite anything whatsoever that suggests that any “agreement” can havethis effect, let alone an informal, consideration-free “agreement” such as respondentclaims the defense entered into here. With Tin’s testimonyprecluding the defense from proving the “ratting retaliation” plan directly from the mouth ofCheap Boy Tin Duc Phanattrial, the defense was entitled to show the plan’s existence circumstantially, by showing that Tin harboredthe beliefthat Nip Family member KyNguyen had been “ratting” on Cheap Boy Lap Nguyen, from whichthe inference could reasonably be drawnthat other Cheap Boys harboredthat belief as well, thus creating a specific motive for the Cheap Boys to frame a Nip Family member via “ratting retaliation.” If there was an agreement by defense counsel with respect to this subject area at all (and there wasnot), it did not encompass a prohibition against impeaching Tin when he went“sideways”at trial. Neither the facts nor the law lend any support to respondent’s contention to the contrary. -39- 2. Trial Court “Could Have Acted Within its Discretion by Excluding the Evidence” Respondent’s also contendsthat the trial court’s ruling below should be upheld becausethe “trial court could .. have acted within its discretion by excluding the proposed inquiry under Evidence Codesection 352, since any probative valuein the inquiry wassubstantially outweighed by the dangerthat it would confuse the issues, confuse the jury and consume an undue amount oftime.” (RB 34-35.) According to respondent, the excluded evidence “was only marginally relevant and highly speculative.” (RB 34.) Respondentis wrongonall scores. a. Respondent’s Theory of Exclusion CannotBe Raised for the First Time on Appeal Thefirst fatal defect in respondent’s contentionis that, as respondent tacitly admits, the trial court did not rely the principles of Evidence Code section 352, nor did it mention them.Its ruling was entirely based onits belief that the defense had violated a discovery rule. Ordinarily, “[i]fthe court’s ruling or decisionis right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have movedthetrial court to its conclusion” (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330), but this generalrule has exceptions, two of which apply to respondent’s section 352 contention here. First: “Although there is a principle of appellate review that a ruling, if correct in law, will not be disturbed on appeal merely because it was based upon a wrongreasonifit was right upon any theory of law applicable to the case, that principle is inapplicable where the theory not advancedin thetrial court and on which the correctness of the ruling depends involves controverted questions of fact or mixed questions of law andfact.” (Cramer -40- v. Morrison (1979) 88 Cal.App.3d 873, 887, citations omitted.) “A new ‘theory may be advancedfor thefirst time on appeal only whereit involves a legal question determinable from facts which are not only uncontroverted in the record but could notbe altered by the presentation ofadditional evidence.” (Ibid., internal quotation marks omitted.) Herein the present case, if the issue had been raised of whether the probative value ofthe excluded inquiry wassubstantially outweighed by the danger that it would “confuse the issues, confuse the jury and consume an undue amountoftime”(see RB 35), appellant would have had the opportunity to address whatever concernsthe trial court might have had. He would have had the opportunity to bolster any shortcomings the court might have perceivedin the probative value of the evidence, and/or he could have taken steps to ameliorate any confusion or undue consumptionoftimethat the trial court might have been worried about. However, because the section 352 justification wasnot raised below, appellant had no reason or opportunity to address these matters. Thus, under the principles discussed in Cramer v. Morrison,thatjustification cannot be raised now. To permit respondent to do so would be manifestly unfair. (See, e.g., People v. Zamora (1980) 28 Cal.3d 88, 97 fn. 4. See also,e.g., People v. Yeoman (2003) 31 Cal.4th 93, 118 & fn. 3; People v. Hill (1974) 37 Cal.3d 491, 498 fn. 5; Giordenello v. UnitedStates (1958) 357 U.S. 480, 488.) Second: Thereis an additional, somewhatoverlapping exception to the general rule regarding new theories on appeal. Because respondent is invokingsection 352, “we are dealing not with a pure question oflaw but with the exercise of a trial court’s discretion. It would be incongruous for an appellate court, reviewing such order, to rely on reasonsnotcited bythetrial court. Otherwise, we might uphold a discretionary order on grounds never -4]- considered by, or, worse yet, rejected bythetrial court.” (People v. Bracey (1994) 21 CalApp.4th 1532, 1542.) Indeed, when, as here, the newly proposed theory of admissibility involves a discretionary weighing that the trial court did not engage in,it would be unjust to invokethe generalrule, because, as we have pointedout, it would effectively deprive the proponentofthe opportunity he would have hadat trial to either havethetrial court exercise its discretion in hisfavor or to refine his presentation so as to meet whatever concernsthetrial court might have had. Allowing section 352 to be invoked on appeal would beto create, in effect, a conclusive presumption thatthe trial court would necessarily have exercised its discretion against the defense.'* b. Respondent’s Section 352 Theory of Exclusion Fails on Its Merits As just shown, respondent cannot invoke Evidence Code section 352 for the first time on appeal, but even if it could,the section would notjustify the exclusion of the evidence nowatissue. Evidence Codesection 352 allowsa trial court to exclude evidence“if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury.” Although respondent mentions the full language of section 352 (RB 34-35), itnever offers any argumentthat the admission ofthe excluded Tin Duc Phan evidence would “necessitate undue consumption of “4 Arguably, a section 352 theory might properly beraised for the first time on appeal if, no matter what elaboration or refinement the defense might conceivably have offered below,there could have been no reasonable exercise of discretion in favor of admitting the excluded evidence. Respondent, however, never comes close to making such an argument, nor would such an argumentbe tenable, constitutionally or otherwise, under the facts of this case. -4)2- time or create substantial danger ofundue prejudice, or confusing the issues, or of misleading the jury.” Instead, respondent’s sole contention is that the evidence was “only marginally relevant and highly speculative.” (RB 34.) Even this limited argumentfails to hold water. The relevance ofthe precluded questioning of Tin Phanis simple and straightforward: (1) Tin harbored the belief that Nip Family member Ky Nguyen had been “ratting” on Cheap Boy Lap Nguyen for having shot him (Ky) on January 6, 1995,’° from which (2) the inference could reasonably be drawn that other Cheap Boys harbored that same belief as well, thus (3) creating a motive for the Cheap Boysto frame a Nip Family member such as appellant via “ratting retaliation.” These inferences are simple common sense, and they are also supported by, amongother things, (1) Tin’s explicit (but hardly surprising) acknowledgmentthat he knew fellow Cheap Boy Lap Nguyen (20 RT 3834), and (2) Detective Nye’s testimony that gang members “constantly are in communication with each other”and that they know about attacks their fellow gang members have made uponrivals (16 RT 3193-3194), Respondentdeclares that this reasoning processis “highly speculative,” but respondent does not explain why. As noted in the AOB,neither thetrial court nor the prosecutor disputed that the inferences defense counsel sought to draw were reasonable ones, nor did they express any concerns about the accuracy ofcounsel’s underlying factual representations. (See AOB 107-108 fn. 71.) Their only concern wasthat the proffered evidence violated discovery principles (an erroneous concern that we will address shortly, in Subsection 3, pp. 46 et seq., post). Respondent doesargue that the probative value ofthe inferences about a Cheap Boyframe-up was“diminish[ed]” because, according to respondent, 8 The AOB mistakenly states the date was January 5. (AOB 107 fn. 71.) -43- Trieu Binh Nguyen, Linda Vu, and Kevin Lac hadall droppedoutofthe gang and thusthe only “active” Cheap Boyto identify appellant at trial was Khoi Huynh, who would not have identified appellant as the shooter to protect the man who“really” shot him. (RB 35-36.) This argument, however,is simply another manifestation ofrespondent’s unreasonably pro-prosecution approach to the evidence. Respondentasserts that it would be “preposterous”to believe that “in orderto retaliate against the Nip Familyfor ‘ratting’ on the Cheap Boys, Khoi Huynh sought to protect the man whoreally shot him by falsely accusing appellant of the crime.” (RB 35. See also RB 42.) However, respondent’s assertion assumes that Khoi Huynhactually knew who had shot him.It is not at all uncommonfor shooting victimsto havefailed to have focused on their assailant’s face or, for other reasons, to be unable to identify him, and indeed this is what Khoi Huynh himself initially told police, on at least three occasions. (See 13 RT 2476-2477, 2505-2506, 23 RT 4469-4470.) No juror was required to believe Khoi’s later claim that he knew whohis assailant was all along, nor can this Court resolve that credibility issue here. With respect to respondent’s claim that Trieu Binh Nguyen,Linda Vu, and Kevin Lac were not “active”Cheap Boys, this is doubly unavailing. First, even if their claims to have dropped out of the Cheap Boys(or, in Linda Vu’s case, the Southside Scissors) were credited, it would hardly cleanse them oftheir pro-gang predilections, as shown bythe fact that they continued to maintain close contacts with members of the Cheap Boys even after they (supposedly) dropped out. (See, e.g., 10 RT 1971.) Second, none ofthese witnesses’ claims ofhaving dropped outofthe gang were credible. Certainly, the evidence was not so overwhelmingthatthis Court can determinethat the jury was compelled to believe them. We have already discussed the evidence undermining the claims made by Trieu Binh 44. Nguyen and Linda Vuthat they hadleft the gang (see ARB §§ 1.1.C.2.c & d, pp. 22-30, ante). To recapitulate briefly: Trieu Binh was described as a Cheap Boybyother witnessesattrial (10 RT 1973, 11 RT 2198), he discussed gang affairs in frequent phone calls with Cheap Boy leader Khoi Huynhin the monthsafter he supposedly dropped out (7 RT 1262-1263, 17 RT 3316), and whenhefirst came forward with his story that appellant was Sang Nguyen’s shooter, he agreed that he was doing so precisely because he was “a gang member” (7 RT 1339-1340). As for Linda Vu,all four adult males at her table on the night Sang Nguyen was shot were Cheap Boys, and when she came forward to identify appellant, she did so because he had been asked to by “membersofthe Cheap Boys.” (17 RT 3321.) With regard to Kevin Lac, his initial testimony was that he stopped being “active”in the Cheap Boys when he “had a kid.” (9 RT 1638.) Later, however, after it came out that the baby was not born until September 12, 1995 — i.e., after Lac had come forward with his new story identifying appellant, meaning that Lac wasstill an active Cheap Boy when he had done so — Lac changedthestarting date of his alleged inactivity. (9 RT 1652.) Now,his claim wasthat he becameinactive in January 1995, when he learned his wife was pregnant. ([bid.) Nojury was required to believe Lac’s claim of having gone inactive at all, but Lac’s change in the starting time of the “inactivity” would only have increased a rational jury’s doubts about Lac’s claim. And the claim wasfurther undermined by Detective Nye, whotestified that Lac “is” a Cheap Boy. (17 RT 3308.) In sum,then, even ifrespondent’s section 352 argument were available on appeal (which it is not), it would fail because (1) the relevance of the excluded evidenceis straightforward, (2) respondent’s effort to “diminish”the probative value ofthe evidence requires an unreasonably prosecution-centric approachtothe record, and (3) respondent does not even attemptto claim that -45- the presentation ofthe evidence would be unduly time consumingorresult in confusion of the jury or prejudice to the prosecution.’* | 3. The Purported Discovery Violation Respondent also argues that the trial court’s ruling precluding the defense from questioning Tin Duc Phan about“ratting” by Ky Nguyen was | proper as a “discovery sanction.” (RB 40.) To prevail on this argument, respondent has to show, first, that there was a discovery violation by the defense and, second,that exclusion oftestimony was a permissible sanction for the violation. (See AOB 100-105.) Respondent fails to satisfy either criterion. a. The Discovery “Violation” Respondenttacitly concedes that Penal Code sections 1054et sequitur do not authorizethe “discovery”involved here,’ but, respondentargues,“the descriptions of materials subject to discovery in Penal Code sections 1054.1 '6 In the course ofits section 352 argument, respondentsaysthat “appellant tacitly acknowledges [that] the probative valueof the inquiry depended on whether or not a Nip Family gang member named Ky Nguyen evertestified that Lam Nguyenshot him; whether or not Phan knew about the alleged 1995 shooting of Ky Nguyen; whether or not Phan heard about Ky Neguyen's alleged testimony identifying Lam Nguyen as the shooter; and whether or not Lam Nguyen's testimony preceded the date on which Cheap Boy witnesses told the police about appellant.” (RB 35.) This sentence contains several mistakes. The Cheap Boy who shot Ky Nguyen was Lap Nguyen, not Lam Nguyen(appellant). Moreover, as the AOB explained,it did not matter whether Tin Duc Phan “knew” about the shooting by Lap Nguyen or whether Ky Nguyenactually “testified.” It mattered only that Tin believed that Ky Nguyen was cooperating with the police. And,clearly, Ky, whowasshotin January 1995, would have been cooperating before the Cheap Boy witnessesstarted telling the police in May 1995 that appellant was the shooter. "7 See People v. Zambrano (2007) 41 Cal.4th 1082, People v. Sanchez (1998) 62 Cal.App.4th 460. -46- and 1054.3, do not exclude other types ofmaterials from the reach ofcriminal discovery.” (RB 40.) This argumentis misleading. Penal Code section 1054 provides that “no discovery shall occur in criminal cases except as provided by this chapter [$$ 1054 et seq.], other express statutoryprovisions, or as mandatedby the Constitution ofthe United States.” (§ 1054, subd. (e); see Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1103.) So, when respondentsaysthat “Penal Code sections 1054.1 and 1054.3 do not exclude other types of materials from the reach of criminal discovery,”it is, in effect, quoting only part of the statute. Unmentioned by respondentis the fact that section 1054 itself specifies what “other types of materials” are discoverable — namely, materials discoverable “as provided by ... other express statutoryprovisions, ot as mandated by the Constitution ofthe United States.” (§ 1054, subd.(e).) The reason respondent needsthe italicized language to disappear is _. obvious. Respondent cannot possibly show — and does not attempt to show— that “other express statutory provisionsor... the Constitution ofthe United States” require that un-obtained, unrecorded information from a witness must be ferreted out and then turned over to the other side. Respondentfails to show that any discovery violation occurred. b. The Sanction of Preclusion of Testimony Even assuming there wasa discovery violation, that would not justify the trial court in precluding the proffered testimony as a sanction for the violation. As pointed out in the AOB, preclusion sanctions may be imposed against a defendant only (1) if “the record demonstrates a willful and deliberate violation which was motivated by a desire to obtain a tactical advantageat trial such as the plan to present fabricated testimony . . ” and (2) “‘only if all other sanctions have been exhausted.’” (People v. Edwards -47- (1993) 17 Cal.App.4th 1248, 1263-1264, quoting § 1054.5, subd. (c), italics added in Edwards.) Respondent makes no attempt whatsoeverto show that “all other sanctions [had] been exhausted,”thereby effectively conceding that the preclusion sanction was improper. As unavailing as it is, respondent does attempt to satisfy the first prerequisite to the use of a preclusion sanction. According to respondent, “defense counsel’s attempted inquiry ofTin Duc Lamb[sic] suggested a type of gamesmanship designed to gain an advantage over the prosecutor by leaving her unprepared to respond to the inquiry in light of the parties’ agreementto restrict themselves to the paragraph referenced in the defense investigator’s interview report discoveredto the prosecutor.” (RB 41.) This argumentfails for several reasons. First, it is premised upon the contention that there was an “agreement to restrict” the questioning of Tin Duc Phanto the paragraph hereat issue. That contention is wrong. (See Subsection A.1, pp. 37 et seq., ante.) Second, there is not the slightest hint in the record that the defense questioning was “‘a type ofgamesmanship designed to gain an advantage over the prosecutor.” The questioning only became necessary because, on the day he came to court, Tin Phan unexpectedly went “sideways” with respect to what he hadtold defense investigator Watkins. An unanticipated about-face by a witness does not amount to “gamesmanship”on the part ofthe party that called him. Moreover, neither the trial court nor the prosecutor so much as hinted that ““gamesmanship” wasinvolvedhere, nor did the prosecutor claim she would have been prejudiced by the inquiry the defense sought to engage in. And third, of course, even if there had been some sort of “samesmanship” —- by which respondent presumably means “a willful and deliberate violation which was motivated by a desire to obtain a tactical -48- advantageat trial”!* — the sanction of preclusion would still have been improper because (as the AOB pointed out and as respondent does not dispute) there was no showingthat “all other sanctions [had] been exhausted.” It was thus error to use preclusion of testimony as a sanction for the defense’s purported discovery violation. 4, Alleged Forfeiture of Federal Constitutional Claims Respondentasserts that appellant’s federal constitutional claims should be forfeited because they are “being made for the first time in this Court.” (RB 32-33.) However, as this Court has repeatedly held (and as we have pointed outearlier,see ARB § I.1.B,p. 12, ante), a constitutionalclaim is not forfeited on appeal when,as here,“the new arguments do not invokefacts or legal standards different from those the trial court was asked to apply, but merely assert that the trial court’s act or omission,in addition to being wrong for reasons actually presented to that court, had the legal consequence of violating the Constitution.” (People v. Gutierrez, 45 Cal.4th at p. 809.) Although this principle is set forth in the very cases respondentcites,’” respondent does not acknowledgeit. 5. Prejudice Respondent also contends that any error was “harmless under any standard.” (RB 42.) Respondent asserts that appellant was able to show “ratting retaliation”via (1) defense investigator Watkins’ testimony that Tin Phan had stated the Cheap Boys were engagedin ratting retaliation against appellant; (2) Khoi Huynh’s phone conversations with Trieu Binh Nguyen,in which they discussedthe shootings ofCheap Boys, (3) Khoi showing up at the 8 People v. Edwards, supra, 17 Cal.App.4th at page 1263. 9 See People v. Geier, 41 Cal.4th at pages 610-611; People v. Halvorsen, 42 Cal.4th at page 408 footnote 7. -49- scene where Duy Vu and Tuan Pham hadbeenkilled and volunteering that appellant had shot him,(4) the testimony of Cindy Pinthat “probably” when one gang memberlies, the rivals will lie in retaliation, and (5) Investigator Janet Strong’s testimony that she had told Khoi Huynh that Nip Family was testifying against Cheap Boys andthat it had happenedthat gangsretaliate by testifying against a gang that hadtestified against them. (RB 33-34, 37.) Respondent’s contention is meritless, in part, because it misses the pointofthe omitted testimony and,in part, because it again improperly takes an excessively prosecution-favorable view ofthe evidence. From the defense perspective, the key point to establish was that the Cheap Boys woulduseratting retaliation in this case. It is true that defense investigator Watkinstestified that Tin Duc Phan had told him as much, but (1) when Tin was examinedbythe prosecutorat trial, he denied that this was true (20 RT 3837-3838); (2) on re-direct examination by the prosecutor, Investigator Strong completely recanted the testimony mentioned by respondent, in which she hadsaid that gangs doretaliate by testifying (13 RT 2545-2546, 2548, 2549); and (3) Detective Nyeinsisted that such retaliation never occurs (16 RT 3199). In this context, it was crucial for the defense to establish not merely that retaliation does happen but, more importantly, that it had occurred here. The fact that the defense could have pointedto a specific incident that would, in the minds of the Cheap Boys, have created a motive to engagein “ratting retaliation” against the Nip Family would have made it much morelikely that the Cheap Boys had engaged in such behaviorin appellant’s case. Without evidence of a specific triggering incident, investigator Watkins’ testimony about whatTin hadsaid to him wasuntethered and was substantially undercut by the contrary trial testimony ofTin Phan,Investigator Strong, and Detective Nye. Ajuror wouldnaturally have asked, “What would possibly have caused -50- Tin Phan to tell Watkins that the Cheap Boys were engagedin ratting retaliation when there wasnoratting by the Nip Family toretaliate against?” With evidence ofa specific triggering incident, however, Watkins’ testimony would have become far more plausible. The omitted evidence would have supplied an explanation for the ratting retaliation, a trigger for it. That was crucial evidence that no other testimony in the case provided. Thus, given the closeness of the case against appellant, the error was prejudicial regardless of whetherthestate or federal standard is used.”° B. The Exclusion Of Evidence Relating To The Cheap Boys’ “Crash Pad” The second wayin which the defense sought to prove the existence of a Cheap Boys agreementto frame appellant was to show that the Cheap Boys had a “crash pad” where they would meetto discuss the gang’s situation and make nefarious plans and that those in attendanceat these meetings included Linda Vu, Kevin Lac, and Khoi Huynh —i.e., all ofthe Cheap Boys members or close associates who lived in California and provided identification evidence for the prosecution at appellant’s trial. The defense theory wasthat the crash pad gave the Cheap Boysa specific, readily available opportunity to conspire to falsely point the finger at appellant. As pointed out in the AOB, the trial court erroneously excluded this evidenceas irrelevant. (AOB 108- 111.) Respondent disagrees. (RB 43-50.) Its contentions have no merit. 70 Of the other items of evidence mentioned by respondent — items (2) through (4) in the listing at the outset of this subsection — one is weakevidencethat ratting retaliation can occur (item (4)), but none of them has any tendency to show there was a specific factor motivating the Cheap Boys to engage in that behavior here. Thus, appellant does not see that these items contribute to the current discussion in any meaningful way. -51- 1, Respondent’s Reliance on Evidence Code Section 352 Respondent first asserts that the trial court used its discretionary weighing authority under Evidence Code section 352 as the basis for excluding the crash-pad evidence. Respondentwrites: “Expressing concerns about the limited probative value of the proposed offer of proof (10 RT1948) and the possibility it would necessitate an undue consumption oftime (10 RT 1947),the trial court nevertheless declined to make an immediate ruling on the offer of proof. It noted it would keep the witness on call should additional testimony increase the probative value of the offer of proof or should Harley more fully develop his offer of proof. (10 RT 1947-1948, 1954-1955.) (RB 44.) Respondent has gotten its facts wrong. It is true that, on the pages respondentcites, the trial court did express concerns about limited probative value and undue consumption oftime, but these concerns were not directed at the crash-pad evidence. Rather, the court was addressing a separate issue, one it had raised sua sponte when the defense sought to impeach Khoi Huynh’s credibility by showing that Khoi had violated his probation by being at a video arcade with other Cheap Boys on May 14, 1992 (i.e., three years before the crash-pad raid). (See 10 RT 1943-1944.) When defense counsel respondedto the court’s objection by saying that his theory was that Khoi was the mastermindof a conspiracy to frame appellant Nguyen(in the course of which, counsel alluded briefly to “a crash pad up . . . in E] Monte”),thetrial court responded, “Well, let me set that asidefor a moment.” (10 RT 1945- 1946.) The court then turned counsel’s focus back to the question ofwhether Khoi could be impeached by evidence that he wasviolating probation, 1.€., whether a probation violation wasan act“involving moral turpitude.” (10 RT 1946.) It was in the contextofdiscussing this issue and similar impeachment -52- ’ that the court expressed its concerns about undue consumption oftime (10 RT 1946) and limited probative value (10 RT 1950). These concerns did not relate to the crash-pad evidence.” (See also 10 RT 1954-1955.) If further proof were needed that the trial court’s concerns about probative value and consumptionoftime had nothingto do with the crash-pad evidence,there is more. All ofthe discussionjust mentioned occurred during the morning court session on May 27, 1998. At the afternoon session that same day, defense counsel brought up “some other areas that I didn’t get into” in the morning session. (10 RT 1965.) Counsel thereupon raised the admissibility ofthe crash-pad evidence. (10 RT 1965-1966.) The trial court’s response was, “What you have just identified might be permissible areas. | can’t make a definitive decisionat this stage. I'll simply ask you don’t go into this area. This is something that we need to have sometimeto discuss without the pressure of having the jury waiting in the hallway. And also brings into consideration some other subjects that we’d haveto discuss.”(10 RT 1966.) In several court sessions in the ensuing days, the subject of the crash- pad evidence wasdiscussedfurther, but the trial court never even alluded to the reasons respondent offers for excluding the evidence, i.e., that the probative value of the evidence was substantially outweighed by the undue consumption of time neededto presentit, or by prejudice to the prosecution or by its potential for causing confusion. It did, however, ask about relevance al Respondent’s assertion that the court “would keepthe witness [Khoi Huynh] on call” in case of further elaboration by the defense is also misleading. (See RB 44, citing 10 RT 1954-1955.) The trial court was keeping Khoi on call in case it allowed the prosecution to introduce “other acts of misconduct on the part of your client [i.e., appellant] or being a predicate act to show involvementby yourclient in the gang....” (10 RT 1955.) As before, its order was unrelated to the crash-pad evidence. *2 Respondent never mentions this colloquy. -53- and about whether the defense had “evidence of statements that were made between these individuals” when the crash pad was raided. (16 RT 3003- 3004.) Nor did the court mention section 352 concerns when the matter was discussed on subsequent occasions. (See 16 RT 3005, 17 RT 3310, 3394- 3395, 24 RT 4567, 27 RT 5340.) The conclusionis irresistible, then, that the trial court did not base its ruling on a section 352 weighing. It simply concluded the evidence was irrelevant. And for reasons previously discussed, it would be improper for section 352 to be invoked here on ‘appeal for the first time. (See ARB § 1.2.A.2.a, pp. 40 et seq., ante.) Because noneofthe considerations on the “prejudice”side ofthe weighing process wereraised below,the defense never had the opportunity or motive to address them orto tailor its presentation of the crash-pad evidenceso as to satisfy whatever concernsthe trial court might have had. Beyond these flaws in respondent’s argument, appellant is unable to see that there were any countervailing factors that would have justified exclusion ofthe evidence. Clearly, the evidence would not have required an undue consumption of time. It would have taken only a few minutes to present the evidence via an officer who had beenat the crash pad when Khoi Huynh, Linda Vu, Kevin Lac,et al. were found there, and prosecution never once suggested it would contest the evidence in any way. Nor couldit possibly be concludedthat the evidence would confuse the issues or mislead the jury. Quite the opposite, it would directly give the jury some important information that it otherwise had only indirect support for: that the Cheap Boysin particular had a crash pad andthus hadspecific opportunities to frame appellant. This evidence certainly had no more of a tendency to confuse or mislead than the prosecution’s evidence purporting to show that appellant was living in a Nip Family crash pad; if anything, the potential for -54- misunderstanding wasless here because the relevance was more direct and obvious. (See 16 RT 3052.) And the prosecutor never claimed that was anything improperly prejudicial to her case about the evidence. (See Piscitelli v. Salesian Society (2008) 166 Cal.App.4th 1, 11 [“Pursuant to [§ 352], ‘prejudicial’ does not mean the evidence is damaging to a party’s case. Instead, it means evoking an emotionalresponsethat has very little to do with the issue on which the evidence is offered.”], internal quotation marks omitted.) Not only did the trial court and the prosecutor fail to mention any countervailing considerations to offset the probative value of the crash-pad evidence, but even now on appeal, respondent cannot point to any. While respondent makes the introductory assertion that “[nJumerous factors. . . increas[ed] the dangerthat the proffered evidence would confusethe issues, confuse the jury, or consume an undue amountoftime” (RB 47), respondent neverthereafter identifies even a single such factor. Its entire presentation is aimedat “diminishing” the probative value of the crash-pad evidence. (RB 47.) Whenthere is nothing on the prejudice (etc.) side of the scale, then the probative value of evidence cannot be “substantially outweighed by”its prejudicial(etc.) effects. Anybeyondall this is the principle that “Evidence Code section 352 mustyield to a defendant’s due processright to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense.” (People v. Cunningham (2001) 25 Cal.4th 926, 999.) Thus, respondent’s attempt to bring this issue under the umbrella of section 352 is (1) factually inaccurate, (2) improperly raised here on appeal, and (3) meritless even if were accurate and properly raised. -55- 2. Respondent’s Attempt to “Diminish” the Probative Value of the Crash-Pad Evidence Respondent’s remaining contentionis that “the probative value ofthe evidence was minimal.” (RB 50.) According to respondent, “[n]umerous factors supported the trial court’s ruling by diminishing any probative value the proffered evidence may have had... .” (RB 47.) Appellant will turn to those “numerousfactors” very shortly. Here at the outset, we pointout that respondent cannot, and does not, claim that the evidence had no probative value. Its only contentionis that the relevance of the evidence was “minimal” or “diminished.” Inasmuch as respondent is thereby tacitly conceding the crash-pad evidence had someprobative value, and inasmuchas Evidence Codesection 352 doesnotjustify the exclusion of the evidence here, that evidence was admissible under the explicit terms of Evidence Code section 351 and Article I, section 28, of the California Constitution, which provides, in relevant part, that “relevant evidenceshall not be excludedin any criminal proceeding ....” (Art. I, § 28()(2).) Nevertheless, because the factors respondentpoints to will be relevant to an assessment ofprejudice, we will discuss them now. There are six such factors, but they amount to nothing but weak scattershot. 1, Respondent asserts that the probative value of the crash-pad evidence was diminished because “the El Monte crash pad raid occurred before the shootings ofSang Nguyen (counts six and seven), Khoi Vu (counts nine and ten), Duy Vu (counts eleven and twelve) and Tuan Pham (counts thirteen and fourteen).” (RB 47.) Respondent’s assertion is factually correct but logically wrong. It overlooks the well understood, logical, common-sense inference once called the “presumption of continuity.” The law has long recognized that “[p]roof of the existence at a particular time of a fact of a continuousnaturegivesrise to an inference, within logical limits, that it exists -56- at a subsequent time.” (Noell v. United States (9" Cir. 1950) 183 F.2d 334, 338.) Thus,the fact that the Cheap Boys had a crash pad on January 29, 1995 (six days before the shooting of Sang Nguyen)is evidencethat the crash pad, or one like it, existed thereafter.” 2. Respondent next says that “only one of the two charged shootings prior to the El Monte crash pad raid involved any Cheap Boy witnesses,to wit: the July 21, 1994, shooting ofTony Nguyen (counts two and three).” (RB 47.) This is irrelevant for the same reason as discussed in the previous paragraph. It is the existence of a crash pad after January 29, 1995, that is relevant, and its continued existenceafter that date is inferred via the routine, well recognized inference of continuity. 3. Respondentsays,“Third, the proffered evidence did not include any evidence of statements between the Cheap Boysatthe crash pad, leaving jurors to speculate about what if anything had been planned there.” (RB 47- 48.) This criticism is quite irrelevant to opportunity evidence. Opportunity evidence,by its very nature, is about “opportunity.” It creates an inference about behavior. It does not require an eyewitness to confirm that the inferred behavior occurred. (See,e.g., People v. Baker (1974) 39 Cal.App.3d 550, 556 (“The prosecution is not restricted to eyewitness testimony that Baker destroyed exhibits, and it may prove such a fact by circumstantial evidence. Baker was the last person seen with the exhibits, he had both motive and opportunity to destroy them, and it is rationally inferable [sic] that he- 3 See also, e.g., People v. Macy (1919) 43 Cal.App. 479, 483 (“it is sufficient to say that it was proved that the Johnson House wasusedfor said immoral purposesas late as August 12, 1918, and that there was a course of such conduct upto that time. From this proof the presumption would follow that said condition continued to exist as long as is usual for things or conditions ofsuch nature.”’); Civil Code, section 3547 (“A thing continues to exist as long as is usual with things of that nature.”). -57- purloined the exhibits [or] had arranged for their destruction.”], citations omitted.) Detective Nyetestified in general terms that a crash pad wasa place where the gangs would “plan criminalactivity” (amongother things). (17 RT 3310.) Thus,the inference would have been that the Cheap Boyscouldeasily have planned to frame appellant by using the opportunities that their crash- house provided. But without the evidence that the Cheap Boys actually had acrash pad andthus actually had the ready-made opportunityto plan criminal deeds and act with a unified front, Nye’s testimony wasentirely theoretical. True, the jury would have understood that gangs as a rule have crash pads, but without the excluded evidence, there was nothing to establish that the Cheap Boysin particular had or used crash pads. That was a gap that the defense neededtofill and that the excluded evidence would havefilled. 4, Next, respondent repeats an argument it made earlier. It says that the probative value of the crash-pad evidence was diminished because Khoi Huynhwas“the only Cheap Boy whoidentified appellant in any ofthe charged crimes” — Trieu Binh Nguyen, Linda Vu, and Kevin Lac having dropped out— andthatit is “preposterous”to believe that Khoi would finger appellant as the person whoshot him,rather than identify the person who really shot him. (RB 48.) However, as we have pointed outearlier, (1) Khoi claimed initially (and repeatedly) that he did not know whoshothim,(2)it is not “preposterous” to conclude that Khoi mightfalsely identify appellant even if he did know he wasn’t the shooter, (3) the claims of Trieu Binh Nguyen, Linda Vu, and Kevin Lacthat they hadleft their gangs were both (a) subject to doubt and(b)oflittle significance evenifcredited, since they continued to associate closely with the Cheap Boysafter they dropped out. 5. According to respondent, evidence that Cheap Boys gathered together at crash pads “cumulated evidencealready before the jury,” namely -58- the testimony of Detective Nye about crash pads that we mentioned in Number3, above. (RB 48.) The short answer here is that Detective Nye merelytestified that gangs generally have crash pad. Neither he nor any other witness established that the Cheap Boysin particular had a crash pad. Respondent also says that the crash-pad evidence was cumulative because “jurors already knew that Khoi Huynhspent time at a known Cheap Boy hangout with eight other Cheap Boysbefore police contacted him there on May14, 1992.” (RB 48, citing 10 RT 1943-1944.) But the 1992 incident alluded to by respondent was mentioned only during proceedings “out of the presence ofthe jury.” (See 10 RT 1944:4-5.) Thus, respondent’s statement that “jurors already knew”aboutthis is wrong. Thejury never knew aboutit. 6. Finally, respondent allegesthat the probative value ofthe crash- pad evidence was diminished because appellant would later testify he “was not a Nip Family gang memberatall, but only associated with childhood friends who happened to be Nip Family gang members.” (RB 49, citing RT 4011-4012.) This is makeweight: (1) the testimony by appellant cameafter the court had concluded the evidence was inadmissible, (2) the jury did not have to credit appellant’s testimony and could have concluded (and apparently did conclude) that he was a Nip Family member, and, most significantly, (3) whether appellant considered himself a member of Nip Family or not is irrelevant to the current issue — whatis relevant is whether the Cheap Boys believed him to be a member,and the fact that appellant “associated with childhoodfriends who happened to be Nip Family gang members” (RB 49) would easily cause Cheap Boys to conclude that he was a member. 3. Alleged Forfeiture of Federal Constitutional Claims Respondent re-asserts verbatim its conclusory claim that appellant’s federal constitutional claims should be forfeited because they are “being made -59- for the first time in this Court.” (RB 49.) However, as this Court has repeatedly held (and as we havepointed out previously, see ARB §§ I.1.B,pp. 12 et seq., & 1.2.4.4, p. 49, ante), a constitutional claim is not forfeited on appeal when, as here, “the new arguments do not invoke facts or legal standards different from thosethetrial court was asked to apply, but merely assert that the trial court’s act or omission, in addition to being wrong for reasonsactually presented to that court, had the legal consequenceofviolating the Constitution.” (People v. Gutierrez, 45 Cal.4th at p. 809.) As before, respondent does not acknowledgethis principle. 4, Prejudice Respondent also contends that any error was harmless under the Watson test. (RB 49-50.) In support of its contention, respondent merely alludesto the last three ofthe six contentionsthat it claimed “diminished”the probative value ofthe evidence. (See Subsection 2, pars. nos. 4-6, pp. 58-59, ante.) No purpose wouldbeserved by repeating here was we have justsaid there. None of the three contentions is valid. Nor does respondent acknowledgethe closenessofthe case or the significance ofthe gap that the excluded evidence wasintendedto fill. Its claim that there was no Watson prejudice cannot be sustained. And, it bears noting, respondent offers no argumentthat an affirmance would be proper under a Chapmananalysis. C. Cumulative Prejudice From The Exclusion Of The Motive-Opportunity-Plan Evidence Appellant has argued that even ifthis Court were to concludethat none of the foregoing errors individually warranted a reversal of Counts 6 and 7, then the cumulation of errors would. (AOB 111.) Respondent disagrees but says merely that “for reasons previously discussed[the errors] were harmless under any standard.” (RB 50.) Respondent fails to come to grips with the -60- significance ofthe excluded evidence, which would have shownthejury that there was indeed a reason why the Cheap Boys would engage in ratting retaliation (to retaliate for Ky Nguyen’s ratting) and that there was indeed a readily available opportunity for the Cheap Boys to plan that retaliation (at their crash pad). Nor, once again, does respondentdeal with the closeness of the case. By any reasonable assessment, there was cumulative prejudice under both the Chapman and Watson standards. -6]- 3. ADDITIONAL ERRORS IN THE ADMISSION AND EXCLUSION OF EVIDENCE In addition to improperly overruling appellant’s objection to the purportedly expert testimony ofDetective Nye and excludingthe evidence of the Cheap Boys’ motive and opportunity to frame appellant, the trial court erroneously excluded evidence aimed at impeaching the changed story of witness Michelle To (Temper Nguyen’s girlfriend), and it improperly allowed the jury to use damaginghearsay evidenceforthe truth ofthe matter asserted. (AOB 112-118.) Respondent contends noerror occurredin either regard. A. Appellant Was Impermissibly Precluded From Impeaching Michelle To With Evidence That She Was Living With Trieu Binh Nguyen At The Time She Decided To Come Forward With Her New Story Onthe night that Sang Nguyen waskilled (Feb. 5, 1995), Michelle To wasthe girlfriend of Trieu Binh (Temper) Nguyen, and both she and Trieu Binh were among Sang’s dinner companions. Michelle told the police on February 5 that Trieu Binh had been in the bathroom at the time of the shooting, and she reaffirmed this story to defense investigator Watkins on April 27, 1998, three weeks before Trieu Binh testified at trial. But when she herselftestified on June 15, she claimedthat she hadlied to the police and to Watkins and that Trieu Binh had been outside whenthe shooter occurred. (19 RT 3576-3577.) The defense attempted to explore how Michelle came to change her story and, particularly, whether the new story might have been instigated by Trieu Binh, but Michelle denied that she had even had “an opportunity to discuss with [Trieu Binh] what type of changes [she] was going to make in [her] testimony when [she] came out here.” (19 RT 3586.) So, the defense naturally sought to ask her if she was “living at the same address” with Trieu Binh at the time she decided to change her story. (19 RT 3596.) As pointed -62- out in the AOB,this clearly was a proper inquiry, but thetrial court refused to permit it. (See AOB 112-115, citing People v. Sweeney (1960) 55 Cal.2d 27, 41; People v. Payton (1939) 36 Cal.App.2d 41, 54-55; People v. James (1976) 56 Cal.App.3d 876, 886.) Respondentcontendsthat the trial court’s ruling was proper. However, not only does respondentcite no law in support ofits contention,it does not even mention the decisionscited in the AOB.Instead, respondent attempts to take a fact-based tack to avoid the case law. Respondent asserts that Michelle’s testimony “established that they broke up before 1998”and that therefore the “impeachment inquiry wasirrelevant . . . because if Michelle lived with Trieu Binh Nguyen at the same address, she most likely did so before they broke up.” (RB 53.) These assertions are riddled with flaws. 1. Firstof all, the defense was not seeking to ask Michelle about whether she and Trieu Binh were living at the same address “before 1998.” It obviously was focusing on the period during which she changedherstory, i.e., the period after her April 27, 1998, phone call with the defense investigator. 2. Nothing was “established” by Michelle’s testimony about having broken up with Trieu Binh. For one thing, Michelle was specifically asked when they broke up, and her answerwas,“I don’t remember.” (19 RT 3595.) Respondenthas created out ofwhole cloth the claim that “they broke up before 1998.” (See RB 53.) For another, even Michelle’s claim ofhaving broken up did not “establish” that they had in fact split up. Michelle had shownherself to be very deceptive when describing their relationship. As respondentitself admitted on the previous pageofits brief, Michelle at first “denied that they saw each other weekly or annually” in 1997 but later was compelled to “acknowledge[] they had been married in 1997 for‘... acouple of months. A few months. About seven or eight.’” (RB 52, quoting 19 RT -63- 3605.) No jury was required to consideras “established”her claim that they broke up at all, let alone respondent’ s gloss that they broke up “before 1998.” Here, again, respondentbothis relying an unreasonably pro-prosecution view of the record and is presenting that view as if it were uncontested and incontestible.”* 3. The underlying legal premise ofrespondent’s argumentis that the trial court would have been permitted to preclude the defense’s question if it believed that “if Michelle lived with Trieu Binh Nguyen at the same address, she most likely did so before they broke up.” (RB 53.) But in addition to providing no factual support to justify such a belief, respondent offers no legal support that such a beliefwould be a properbasis for excluding evidence. Respondent cites nothingto justify the notion that a trial court can exclude evidence based uponits personalbelief as to what scenario it thinks is the “most likely.” Under the Constitution,it is the jury’s sole prerogative to determinethefacts, as we have discussed. Andevidenceis relevantifit has “any tendencyin reason”to proveor disprove a disputed material fact. (Evid. Code, § 210.) The cases cited by appellant and ignored by respondent establish that the defense inquiry wasrelevant. Finally, appellant notes that respondent again makes its conclusory claim that appellant’s federal constitutional claims should beforfeited because they are made “for thefirst time in this Court.” (RB 54.) However, as we have pointed out several times already, a constitutional claim is not forfeited on appeal when, ashere, “the new arguments do not invoke facts or legal standards different from thosethe trial court was asked to apply, but merely “4 Michelle acknowledged that, after Trieu Binh testified at appellant’s trial, he told her about his trial testimony (19 RT 3589, 3591), which is someindication byitself that they had a continuing relationshipat that point. -64- assert that the trial court’s act or omission, in addition to being wrong for reasonsactually presentedto that court, had the legal consequenceofviolating the Constitution.” (People v. Gutierrez, 45 Cal.4th at p. 809.)” B. The Trial Court Erred By Refusing To Give A Limiting Instruction As To Prejudicial Hearsay Evidence Relayed By Trieu Binh Nguyen Appellant has arguedthatthetrial court erred by denying the defense request to give a limiting instruction when Trieu Binh Nguyentestified that he went to the police because “[i]t get to a point that I heard lot ofmy friend went down from what happened, the same guy killed myfriend, get to a certain point I can’t stand it anymore.” (7 RT 1237-1238. See AOB 115- 117.) Respondent implicitly concedes that the quoted testimony was admissible “solely to establish Trieu Binh Nguyen’s state of mind”and “for no other purpose.” (RB 57.) But, respondent says, a limiting instruction was properly denied because it was “unnecessary.” (RB 57.) However: 1. Respondent’s contention is that a limiting instruction was “unnecessary” because “[n]either the prosecutor nor Trieu Binh Nguyen ever suggested that he witnessed any shootings other than the shooting of Sang Nguyen on February 5, 1995.” (RB 57.) Respondent is arguing against a straw man. Appellant has never claimed that the vice of Trieu Binh’s testimony wasthatit “suggested he witnessed any shootings other than the °5 Included in respondent’s forfeiture contention is the claim that appellant’s argument that the trial court’s ruling violated the Truth-in- Evidence provision of the California Constitution is also forfeited. But (1) there is no reasonto treat a state constitutional ground anydifferently from a federal constitutional ground and (2) the state law requiring the admission of relevant evidence is now just as much grounded in the California Constitution as in the Evidence Code. -65- shooting of Sang Nguyen,” nor does appellant see how any such argument could be made. What appellant is challenging is the fact that the jury was allowed to consider, for the truth ofthe matter asserted, that “others” had told Trieu Binh “that ‘the same guy’ waskilling his friends.” (AOB 116.) It was the hearsay from “others”that is at issue here, not any implication that Trieu Binh “witnessed [other] shootings.” 2. What respondent undoubtedly intends to argue here is what it says later, namely, that the “context of Trieu Binh Nguyen’s challenged testimony made its purposeclear, even without the limiting instruction.” (RB 58-59.) Butjurors are not lawyers. There is no basisin law or logic to impute to them the knowledgethat Trieu Binh’s testimony could be considered only for a limited, non-hearsay purpose. That is why limiting instructions are required in the first place. And any possible inference that the jury in appellant’s case might somehow haveharbored such beliefislaid to rest by the fact that, when it was instructed, the jury was told to “consider[] all the evidence,” without limitation.” (27 RT 5255.) 3. Respondent’s claim that a limiting instruction could be dispensed with here as “unnecessary”is contrary to established law. Evidence Code section 355 specifically says that “[w]Jhen evidence is admissible . . . for one purposeandis inadmissible . . . for another purpose, the court shall upon request restrict the evidence to its proper scope and instruct the jury accordingly.” The case law says the same thing. (People v. Sweeney (1960) 55 Cal.2d 27, 41, People v. Miranda (1987) 44 Cal.3d 57, 83.) Respondent 6 Moreover, the prosecutor elicited two additional times the substance ofwhat Trieu Binh had been told. (See RT 7 RT 1238 [prosecutor asks Trieu Binh if he talked to Detective Nye “when you felt that you just couldn’t stand it anymorethat he waskilling your friends], 1348 [Trieu Binh decided to come forward “because yourfriends were dying from rival gang, and largely from one person.”].) -66- neither addresses these authorities (cf. AOB 116) nor cites any contrary authority of its own. Moreover, the law is that evidence admitted without limitation may be considered for any and all purposes. (See, e.g., Wicktor v, County ofLos Angeles (1960) 177 Cal.App.2d 390, 405-406 [““Though they be technically ~ hearsay asto the truth ofthe facts stated, these statements of[plaintiff] are in evidence for all purposes and are in the status of hearsay which has been received without objection. Such evidence will support a finding ofthe truth ofthe substance ofthe hearsay statements.”].) So, ifthejury can be presumed to have understood the state of the law with respect to Trieu Binh’s statements, it must be presumed to have knownthat it could consider “the truth of the substance of the hearsay statements.” Respondent’s contentionthat a limiting instruction was “unnecessary” has no merit.”’ C. The Errors, Considered Individually Or Cumulatively, Were Prejudicial With Respect to Counts 6 and 7 Appellant has argued that, whether considered individually or cumulatively the errors in precludingthe inquiry ofMichelle To andrefusing to give a limiting instruction as to Trieu Binh Nguyen’s testimony require a reversal of Counts 6 and 7. Appellant pointed out the closeness of the case, the weakening of the defense case by the formererror, the enhancing of the 7 Respondent againasserts that appellant’s federal constitutional claims should be forfeited because they are made “for the first time in this Court” (RB 57), but that assertion has no more merit here than in its previous iterations. (See, e.g., People v. Gutierrez, 45 Cal.4th at p. 809; People v. Carasi, 44 Cal.4th at p. 1289 fn. 15; People v. Boyer, 38 Cal.4th at p. 441 fn. 17; People v. Verdugo, 50 Cal.4th at p. 277 fn. 5; People v. Loker, 44 Cal.4th at p. 704 fn. 7; People v. Lewis, 39 Cal.4th at p. 990 fn. 5.) -67- prosecution’s case by thelatter, and the way that the prosecutor exploited absenceofa limiting instruction. (AOB 117-118.) Respondentdeals with almost none of this. Respondentsays nothing about the error with respect to thelimiting instruction except, perhaps, to allude to its contention that it would have been “clear” to the jury that its consideration of Trieu Binh’s testimony was limited. (RB 58-59.) With regard to the precluded Michelle To inquiry, respondentsaysthe error was harmless under the Watsontest because “cross-examination revealed that Michelle To had been married to Trieu Binh Nguyen for seven or eight months in 1997 and that they therefore had ample opportunity to concoct a new story together had they chosen to do so.” (RB 55.) But, as respondent admits in the very next sentence, Michelle “only decided to recant .. . some time after talking to the defense investigator on April 27, 1998”(ibid.), which meansthat it is irrelevant that she and Trieu Binh had an opportunity to concoct a new story in 1997. It was the period “after talking to the defense investigator” that appellant’s inquiry was directed at. Respondent’s “no prejudice” contention completely misses the point. -68- 4. IF THIS COURT WERE TO CONCLUDE THAT DEFENSE COUNSEL FAILED TO PRESERVE ANY OF THE AFOREMENTIONED CLAIMS, THEN A NEW TRIAL WOULD BE REQUIRED ON THE GROUND THAT APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL In the AOB, appellant argued that ifhe were deemedto haveforfeited any of the preceding claims because his trial counsel failed to properly preserve it (or them), then appellant was denied his Sixth and Fourteenth Amendmentrights to effective assistance of counsel, as there could be no. reasonable explanation for such a deficiency, and appellant was prejudiced thereby. (AOB 119-120.) Respondent, having argued that appellant’s constitutional claims should be defaulted, respondsto the ineffective-assistance claim in an almost pro forma manner. Its contention is that this Court should reject the ineffective-assistance claim “because appellant cannot meethis dual burdens of proving from the state record that his trial counsel failed to act in a professionally reasonable mannerandthat different verdicts would have been reasonably probable had they acted differently.” (RB 59.) Respondent does not dispute that deficient performance must be foundif “there could be no reasonable explanation for trial counsel’s professionally unreasonable inaction” (RB 59), but respondent does not even hint at a reasonable explanation for why trial counsel would have failed to preserve the constitutional claims respondentalleges are defaulted. Respondent’s silence may be taken as a concession that no such explanation exists. (See, e.g., People v. Bouzas (1991) 53 Cal.3d 467, 480; People v. Kunitz (2004) 122 Cal.App.4th 652, 658; Westside Center Associates v. Safeway Stores 23 (1996) 42 Cal.App.4th 507, 529.) -69- Nor does respondent address the question of prejudice, although presumablyit relies upon its prior contentions regarding lack ofprejudice,to which wehave already responded. Thereis, in short, nothing warranting a reply here. 5. IF REVERSAL OF COUNTS 6 AND 7 IS NOT REQUIRED BY ANY OF THE PRECEDING CLAIMS, REVERSAL OF THOSE COUNTS, AND MORE, WOULD BE REQUIRED BECAUSE OF CUMULATIVE PREJUDICE In the AOB,appellant argued that each of the errors was sufficient alone to warrant a newtrial as to Counts 6 and 7 but that the accumulation of errors was surely prejudicialas to those counts and as to Counts 2,3, 4, 5, 9, 10, 13, and 14, as well. (AOB 121-122.) Respondent answers noneofthis. Theonly hint ofa responseis its statement, at the conclusion ofits contentions with regard to the “limiting instruction”issue, that “respondent has previously discussed why the verdicts would not have changed in the absence of other claimed errors.” (RB 59.) Appellant presumes that respondentis alluding to its discussion of cumulative prejudice with respect to appellant’s secondset of claims attacking Counts 6 and 7, namely, the challenges to the Tin Duc Phan testimonyand the crash-pad evidence. (See ARB § 1.2.C,pp. 60 et seq., ante.) But all respondentsaid at that time wasthat “for reasons previously discussed [the errors] were harmless under any standard.” (RB 50.) In short, respondent never makesany substantive argument as to why there was no cumulative prejudice requiring the reversal ofCounts6 and7 (or the other counts enumerated in the preceding paragraphs). Nor does respondenteverallege the errors could be found harmless under the federal constitutional test. Thus, in light of the gaps in respondent’s brief, there is nothing to which appellant can reply. -70- SECTIONII. COUNTS13 AND 14 (relating to the May 6, 1995 shooting death of Tuan Pham) In Counts 13 and 14, appellant Nguyen was charged with and convicted of the first-degree murder of Tuan Pham, a Cheap Boy gang member who,withpistol in hand, hadjogged up to the car in which appellant wasseated and(to usethe trial court’s words) “wasactively seekingto kill the defendant.” (31 RT 6082.) Appellant’s presence in the car was undisputed. What was disputed was appellant’s role in the ensuing exchange of gunfire and whetherthe shooting ofTuan Pham was donein self-defense. It was the prosecution’s contention that appellant was the car’s driver and that he fired one ofthe weapons that killed Tuan. The defense’s position was that appellant was unarmedin the back seat and did notparticipate in the shooting and that, in any event, Tuan’s killing was committed in self-defense. In his AOB,appellant has raised issues touching upon both aspects of the case. (AOB 123-229.) This ARB discusses those issues in the same orderas the AOBdid. 1. COUNTS 13 & 14 MUST BE REVERSED BECAUSE SELF-DEFENSE WAS ESTABLISHED AS A MATTER OF LAW; BUT IF A VALID LEGAL THEORY DOES EXIST UNDER WHICH SELF-DEFENSE COULD PROPERLY BE REJECTED, REVERSAL OF COUNTS13 AND 14 WOULDSTILL BE REQUIRED BECAUSEIT IS IMPOSSIBLE TO CONCLUDE BEYOND A REASONABLE DOUBT THAT NO JUROR RELIED UPON AN INVALID LEGAL THEORY In Section IT.1 ofthe AOB,appellant raised twointerrelated challenges to the convictions in Counts 13 and 14. First, appellant argued that the evidence wasinsufficient to sustain the convictions becauseself-defense was established as a matter of law. As the AOB pointed out, appellant was in -7}- immediate, mortal danger from Tuan Pham at the time Tuan waskilled and while six theories had been proffered asbases for rejecting self-defense, three of thetheorieswere (unbeknownst tothe jury)inapplicable to this case as a matter of law, and the remaining theories were (again, unbeknownst to the jury) non-existent legal doctrines, two of which were created ad hoc by the prosecutor. Second, the AOB argued that even if one or more of the six theories could properly have allowedthe jury to reject self-defense, reversal would still be required if one or more of the legal theories was improper becauseit is impossible to conclude, beyond a reasonable doubt, that the jury relied on a proper theory. (AOB 123-197.) Respondent does not disagree as to the immediacy and deadliness of the danger Tuan Pham posed,nor on these facts could there reasonably be any disagreement. Instead, respondentdisputes that appellant wasentitled to use self-defense to protect himself from the immediate and mortal danger facing him. In effect, respondent takes the position that appellant was legally required to submit to being shot to death there on the street by a vigilante from a rival gang. Respondent’s contention not only violates the precepts of a civilized society but is premised upon inaccurate and insupportable views of | the evidence andthe law. Asnotedat the outsetofthis brief, respondent has chosento use these self-defense issues as the place to present its detailed statements of facts regarding all of the charges against appellant except Counts 6 and 7 (the killing of Sang Nguyen), which it addressed in connection with claims focused on those counts. (See RB 61-112, 13-29.) Our ARB hasalready replied to respondent’s statements ofthe facts as to Counts 6 and 7 (see ARB § 1.1.C.2, pp. 19-35, ante) and as to Counts 11 and 12 (the killing ofDuy Vu, ofwhich appellant was acquitted; see ARB Introduction, § B, pp. 3-7, ante). -72- Here in Section II of the ARB, appellant will reply only to respondent’s statementoffacts as to Counts 13 and 14. Our replies to respondent’s factual statements as to the remaining counts will be made when those counts are addressed in this brief. For purposes of the current insufficient-evidence argument, we assume arguendothat appellant was the driver of the car that Tuan Pham had approached andthat the jury’s guilty verdicts on the counts other than Counts 13 and 14 are valid and accurate. A, Respondent’s Statement of the Facts re the Death of Tuan Pham Serious factual deficiencies permeate respondent’s substantive arguments regarding self-defense, and we will address those in due course, but respondent’s initial Statement of Facts regarding the shooting of Tuan Pham (RB 98-112) has only a few that matter. Perhaps most significant for purposes of the self-defense issues is respondent’s statementthat “[a]s [Tuan Pham] beganto raise his shooting arm while standing a short distance behindthe driver’s door ofthe white/silvercar, two gunmen in the white/silver car shot the man.” (RB 99, citing 13 RT 2601-2608.) Respondentis correct that shooting from inside the car started only “as [Tuan] beganto raise his shooting arm,” but the implication that both gunmen in the car opened fire while Tuan was doing this is wrong. It was only the driver who fired as Tuan raised his arm. Theright front passenger beganfiring later on. (See 13 RT 2601, 2604; 14 RT 2718-2719.) Indeed, respondent acknowledgesthe point elsewherein its brief. (RB 100-101.) Other deficiencies in the Statement of Facts go to the question of whether appellant was the driver. For example, respondent notes that eyewitness Robert Murray was showna photo lineup containing appellant’s picture, and respondent then says that Murray selected appellant’s photo “as looking mostlike the shooter ... insofar as he was clean shaven,had a clean -73- complexion, was young-looking, and had short, combed-back black hair.” (RB 101, citing 14 RT 2724-2725, 2755-2756.) Respondent omits, however, that when Murrayinitially viewed the six pack, he did not select anyone and that it was only after “the talking back and forth [with police], and are you sure nobody looks like this or that” that he indicated that appellant was “possible.” (14 RT 2723.) Respondent omits, too, that after viewing the six pack, Murray wrote “I cannot make any identification” on the identification form. (14 RT 2723, Exh. V.) And respondent neglects to mention that Murray failed to select appellantat a live lineup or in court. (14 RT 2750, 2723.) Respondentalsostates that, in his testimony, appellant said that “his friend Hoan Viet Tran” wassitting in the front passenger’s seat at the time of the shooting. (RB 111.) Appellant’s testimony wasthat the front passenger was a male named Hong(not Hoan) whoselast namehe did not know,having only met him a few timesat a pool hall. (22 RT 4041, 4055.) There is no mention of any Hoan Viet Tran in the transcript.”* Respondentalsostates that Tam Nguyen, the ownerofthe residence at 13401 Amarillo Street, “heard through the police that the renter of the attached studio apartment in May of 1995 was Lam Thanh Nguyen.” (RB 108, citing 15 RT 2872.) Actually,the police told Tam that the renter’s name was Lam Van Thanh. (15 RT 2872.) B. Respondent’s Theory #7: Lying-In-Wait Murder *8 There wasa prosecution witness named Hoan Ngoc Bui(see 14 RT 2764), and at one point during appellant’s testimony, the prosecutor referred to someone named Long Viet Tran (see 22 RT 4253-4254), but neither Hoan nor Long wasalleged to have had any connection to the Tuan Pham shooting. -74- Respondent’s most oft-repeated argument in favor of sustaining the judgmentin Counts 13 and 14 is to propose a seventh theory for rejecting self- defense, one not offered to the jury below: lying in wait. (See RB 61, 113, 114, 116, 118, 119, 123, 125.) This argument fails on numerous levels. 1. A Lying-In-Wait Theory May Not Be Invoked or Relied on for the First Time on Appeal It is firmly established that a judgment in a criminal case may not be sustained byresort to a theory different from those on which the case was tried. Both due process andthe right to jury trial embody such a prohibition. “To conform to due process of law, [defendants] were entitled to have the validity of their convictions appraised on consideration ofthe case as it was tried and as the issues were determinedin thetrial court.” (Cole v. Arkansas (1948) 333 U.S. 196, 202 [reversing an affirmance].) “This Court has never held that the right to a jury trial is satisfied when an appellate court retries a case on appeal underdifferent instructions and on a different theory than was ever presented to the jury. Appellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury.” (McCormick v. United States (1991) 500 U.S. 257, 270 fn. 8. See also, e.g., Chiarella v. United States (1980) 445 U.S. 222, 236 [“we cannot affirm a criminal conviction on the basis ofa theory not presented to the jury”’]; Dunn v. UnitedStates (1979) 442 U.S. 100, 107 [“[A]ppellate courts are not free to revise the basis on which a defendant is convicted simply because the sameresult wouldlikely obtain on retrial”].) The courts of this State are in complete accord. It is a “firmly entrenched principle of appellate practice that litigants must adhere to the theory on which the case wastried”; allowing a new theory on appeal“would be unfairto the trial court and the opposinglitigant.” (Brown v. Boren (1999) -75- 74 Cal.App.4th 1303, 1316.) Thus, for example, “[w]hile a general verdict of guilt may besustained on evidenceestablishing any one ofthe [formsofthe] offenses, the offense shown by the evidence must be one on which the jury was instructed and thus could have reachedits verdict.” (People v. Beaver (2010) 186 Cal.App.4th 107, 123, citations omitted.) To the same effectare, e.g., People v. Curtin (1994) 22 Cal.App.4th 528, 531 (“While a general guilt verdict [in a theft case] may be sustained on evidenceofany typeoftheft, the offense shown by the evidence must be one on whichthe jury was instructed and thus could have reachedits verdict.”’), internal quotation marks omitted; People v. Moses (1990) 217 Cal.App.3d 1245, 1252 (after concluding there was no evidenceoftheft by larceny as charged: “The prosecution . . . cannot now changeits theory on appeal and arguethat the heifer had not beenstolen but instead had been obtained by misappropriation under section 485.”); and People v. Green (1980) 27 Cal.3d 1, 67 (“The fatal flaw in [the Attorney General’s] ‘continuous kidnapping’ theory . . . is that it was simply not the theory on which the case wastried.”). The judgment in Counts 13 and 14 cannotconstitutionally be upheld byresort to respondent’s newly invoked lying-in-wait theory. 2. The Evidence Fails to Support_a Lying-In- Wait Theory ' Not only are there constitutional bars against resort to respondent’s lying-in-wait theory, but the record fails to support it. Asthis Court has recently noted, “Lying-in-wait murder consists of three elements: (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage” (People v. Russell (2010) 50 Cal.4th 1228, 1244,fn. and internal -76- quotation marksandcitations omitted.) Even ignoring self-defenseissues, the record would not support a finding of lying-in-wait murder. It is difficult to understand how respondent can claim appellant committed “a surprise attack on an unsuspecting victim” when respondent continually claims that Tuan attempted to movehis car from “the anticipated line offire” in “the anticipated gun battle” (RB 116, 113. See also, RB 123 [Tuan “anticipated a shoot out before [he] exited the Oldsmobile.”].) IfTuan “anticipated” a gun battle, then Tuan could not have been “an unsuspecting victim” subjected to “‘a surprise attack.” Nor can appellant possibly be found to have been in “a position of advantage” with respect to Tuan. Quite the contrary, appellant was confined in his seat in the car, whereasat the time Tuan raised his gun, Tuan was in a standing position at an angle to appellant and slightly behind him. (See RB 99 [Tuan Pham “began to raise his shooting arm while standing a short distance behind the driver’s door’].) Tuan was in essentially the same position as law enforcementofficers are taught to take when they approachthe driver of a car in order to give them an advantage over the driver. And indeed, eyewitness Shawn Burchell described Tuan’s position in these very terms: “You know how like whenyouget pulled over by a policeman, when he approaches yourcar, he doesn’t cometotally and face you at the door, he comesand asksfor registration, and he’s a little offto the side so almost ifyou did have a gun, you couldn’t shoot him. [§] That’s where he [Tuan Pham] was. That’s the only way I could explain that. He’s almost like at where the back of the driver’s side seat is. So he wasn’t totally facing the vehicle. He was almostat an angle.””? (13 RT 2602. See also 13 RT 2606.) 9 See, e.g., International Association of Chiefs of Police Model Policy re Motor Vehicle Stops (Dec. 2006), § IV.B.7 [“Approaching from the (continued...) -77- Eachofthese evidentiary flawsis dispositive ofrespondent’s lying-in- wait theory by itself, but appellant wishes to comment upon twoassertions that respondent makes repeatedly in the course of presenting that theory. First, respondentasserts that appellant “never thought of fleeing the scene” and “never backed away from the impendingfight.” (RB 61, 117. See also RB 116, 118, 125, 129, 130.) This assertion is defective both legally and factually. It is legally defective because, as the jury wasinstructed below, “Ta] person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of his right of self-defense a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation... . This law applies even thoughthe assailed person might more easily have gained safety by flight or by withdrawing from the scene.” (27 RT 5283-5284. See also, e.g., People v. Ross (2007) 155 Cal.App.4th 1033, 1044 fn.13 [“California belongsto the majority of.jurisdictions with a ‘Injo [rJetreat [rjule,’ under which the victim of an assault is under no **(...continued) driver’s side, the officer should . . . stop at a point to the rear ofthetrailing edge of the left front door’]; Molnar, “Traffic Stop Survival, Part 1,” Law Officer Magazine (June 1, 2010) [“‘As you reach the violator vehicle, conduct business from a position of advantage [and] don’t ever passthe ‘B’ pillar.”]’ viewable at www.lawofficer magazine.com/pring/3685 (as ofNov. 16, 2011); Orwell [Oh.] Police Dept., “Traffic Stops” at http://www.orwellpolice.com/trafficstops.htm (as of Nov. 11, 2011) (“The purposeofthe officer standing to the rear of the driver’s door is for his own safety. It allows the officer a view of the entire interior of a vehicle and allows him to react ifthe driver or other occupant has a weapon.”); Gonzalez, Conducting Safe and Lawful Traffic Operations and Vehicle Stops, viewable _ at http://www.scribd.com/doc/51556058/Police-Traffic-Stop-Training- Presentation-Part-1-by-R-Gonzalez , p. 15 (as of Nov. 11, 2011) (“Basic Traffic Stop Considerations - Review .... Conduct your approachat angles to your objective .... You want to remain behindthe driver’s door and force the driver to turn and face you.”). -78- obligation to ‘retreat to the wall’ before exercising the right of self-defense, butis entitled to ‘stand his ground.’”], quoting 1 Witkin, Cal.Crim. Law (3d ed. 2000) Defenses, § 74, p. 408.) Respondent’s assertion is also flawed factually because there was no evidence that any avenue of retreat was available. Appellant’s car was stopped for a red light on eastbound Westminster at Brookhurst, a major intersection with businesses all around. (13 RT 2575.) There clearly was cross-traffic because cars not involved in the shooting had to wait for the greenlight before fleeing.*” (See 13 RT 2612, 14 RT 2702-2703.) Certainly, the prosecutor below never claimed that appellant could have driven off. And in any event, as the AOB pointed out, “where the peril is swift and imminent and the necessity of action immediate[,] the law does not weigh in too nice scales the conductofthe assailed, and say he shall not be justified because he might have resorted to other meansto secure his safety.” (People v. Hecker (1895) 109 Cal. 451, 467. Accord Brown v. United States (1921) 256 U.S. 335, 343 [“Detached reflection cannot be demanded in the presence of an uplifted knife.”].) Respondent’s second oft-repeated assertion is that “Tuan Phan[sic] only emerged from the Oldsmobile with a firearm after unsuccessfully attempting to back the Oldsmobile up andsteer it out of the left turn lane.” (RB 117. See also RB 114, 119, 123.) Appellant is not entirely clear what respondent’s point is, but there is no evidence supporting the claim that Tuan was unable to steer out ofthe left turn lane. The prosecution’s positionattrial 30 In addition, as respondent acknowledges,just two minutes after the first police broadcast about the shooting, “Several cars were traveling north and southbound on Brookhurst and several cars were attempting to make a left-hand turn from westbound Westminster to northbound Brookhurst”andstill other cars “were creating a traffic jam on Westminster near that intersection.” (RB 103, referencing 14 RT 2677.) -79- was that Tuan backed up and stopped because he “wanted to get outof the line of sight of the car” that appellant was in. (27 RT 5184.) In other word, Tuan wasnottrying to “steer out of the left turn lane,” as respondent would have it, but was trying to conceal himself in order to give himself the advantage of surprise in his impendingattack. In sum, not only is resort to lying in wait constitutionally barred by virtue of it never having been submittedto the jury, but the theory fails for lack of evidence as to essential elements of lying in wait. And there is yet another defect— equally fundamental— in respondent’s effort to uphold the judgmentas to Counts 13 and 14 underthis theory.... 3. Respondent’s Lying-in-Wait Theory Fails to Take into Account the Imminent Mortal Danger Facing Appellant Evenifthe Constitution permitted respondent to invoke lying in wait for the first time on appeal (which it doesn’t), and evenifthere were sufficient evidence to support the theory (and there isn’t), that still would not justify resort to the theory here because there is yet another fundamental]flaw with the effort to invoke the theory. The flaw is that respondentfails to take any account of the imminent mortal danger facing appellant at the time he shot Tuan Pham. Manyactsof self-defense — indeed, probably most ofthem— would amounttofirst-degree murderifthe element ofimminent mortal danger were ignored. The endangered person will often have intentionally inflicted the mortal wound with intent to kill and have had time to premeditate and deliberate because, as the jury was instructed in appellant’s case, “[t]he law does not undertake to measurein units oftimethe length ofthe period during which the thought must be pondered before it can ripen into an intentto kill whichis truly deliberate and premeditated.” (3 CT 1010, 27 RT 5262.) The dispositive factor in whether a killing with such a mentalstate is a justifiable homicide or a criminal one is the presence (or appearance) of imminent -80- danger. (§ 197. See also, e.g., People v. Barry (1866) 31 Cal. 357, 358 [“In cases ofnecessary selfdefense, the act done in such defenseisjustified on the ground thatit was necessary forthe preservation ofthelife ofthe slayer, and the intent to take the life of the assailant as a necessity may precede the act whichresults in his death.”’].) Lying in wait is one “kind of willful, deliberate, and premeditated killing.” (§ 189.) It is “the functional equivalent of proof of premeditation, deliberation and intent to kill.” (People v. Russell, 50 Cal.4th at p. 1257, internal quotation marks andcitations omitted.) Thus, by the plain terms of section 197,* lying-in-wait murder is subject to the same “justifiable homicide” exemption as is the usual form of premeditated and deliberate murder. And a person whohasacted in response to imminent mortal danger maywell havenot disclosed his ability or intent to use lethal force against his assailant; he may well have had to wait for an opportune time to act; and he may well have surprised the assailant and used lethal force from a position of at least temporary advantage — because otherwise he might not have been able to preserve his life at all. None of this negates the imminent mortal danger facing him. Noneofthis meansthat self-defense is unavailable. Respondent negatesthe entire conceptofself-defense by trying to use lying in wait to impose criminalliability on appellant without taking into account the imminent mortal peril confronting him at the time ofthe shooting. Not only does respondent seek to negate statutory law regarding justifiable homicide, but its position, if accepted, would run afoul of the constitutional 3 In relevant part, section 197 provides that homicide “by any person”is justifiable “[w]hen resisting any attempt to murder any person... or to do some great bodily injury upon any person”or “[w]hen committed in the lawful defense of such person . . . when there is reasonable ground to apprehend a design to... do some great bodily injury, and imminent danger of such design being accomplished.” -81- right to self-defense, the existence ofwhich respondent never disputes. (See AOB127-131. See also McDonald v. Chicago (2010) 561 U.S. ___, 130 S.Ct. 3020, 3036, 177 L.Ed.2d 894 [“Self-defenseis a basic right, recognized by manylegal systems from ancient times to the present day, and . . . ‘the central component’ ofthe Second Amendmentright” to keep and bear arms], quoting District of Columbia v. Heller (2008) 554 U.S. 570, 599, emphasis deleted.) -4, Conclusion In sum, then, respondent’s efforts to sustain the verdicts in Counts 13 and 14 on the basis of lying-in-wait murder must be rejected for multiple, independentreasons: (1) the theory maynot be invoked here on appeal when it was not presented below;(2) the theory fails for lack of factual support in several regards;(3) the theory fails to account for the imminent mortal danger that Tuan Pham posedto appellant and negates self-defense altogether, and (4) applying the theory here would violate the state and federal constitutional rights to self-defense. Wewill now turn to respondent’s contentions regarding the six legal theories that were made available to thejury to support its verdicts with regard to Counts 13 and 14. As noted in the AOB,those theories were: 1. the “mutual combat” theory, the “initial aggressor’’theory, the “seeks a quarrel” or “contrived self-defense” theory, the “decent person”theory, the “emotional reaction” theory, and Nn W F Y N the “multiple motivation”theory. Respondent contendsthat the first three theories and Theory #6 are properly applicable to this case and support thejury’s rejection ofself-defense --82- and that the remaining twotheories, which respondenttacitly concedes would be invalid, were not presentedto thejury at all. Respondent’s position has the following consequences: First, respondentis not seeking to use Theories #4 or #5 to sustain the judgmentagainst appellant’s insufficient-evidence challenge. That challenge thus turns on whether Theory #1, #2, #3, or #6 can legally sustain the judgment in Counts 13 and 14. Second, even assuming arguendothat this Court were to conclude that one or more of Theories #1, #2, #3, and #6 can support the verdicts against appellant’s insufficient-evidence challenge, thejudgment as to Counts 13 and 66614 would still have to be reversed for a new trial unless “‘it is possible to determine from other portionsofthe verdict that thejury necessarily found the 99932defendant guilty on a proper theory’”* or that there is some other way to “conclude, beyond a reasonable doubt, that the jury based its verdict on a legally valid theory.”*? Respondent does not contend that it is possible to determine from other portions of the verdict that the jury necessarily found appellant guilty on the basis of Theories #1, #2, #3, or #6 . Indeed, respondent makes no argument whatsoeverthat verdicts in Counts 13 and 14 could be upheld if one or more of Theories #1, #2, #3, or #6 were found to be invalid or ifone or both ofthe concededly invalid Theories #4 and #5 were in fact presented to the jury. In essence, respondent acknowledgesthat, under %2 Ibid., quoting People v. Guiton (1993) 4 Cal.4th 1116, 1130. See also Griffin v. United States (1991) 502 U.S. 46, 59; Stromberg v. California (1931) 283 U.S. 359, 368. % People v. Chun (2009) 45 Cal.4th 1172, 1203. -83- the facts of this case, a new trial is required if any invalid theory was presented to the jury.” Cc. Theory #1: Mutual Combat Like the prosecutor below, respondentseeks to justify the rejection of self-defense as to Counts 13 and 14 on the basis of the mutual-combat exception to the self-defense doctrine. In the AOB at pages 134 to 156, appellant set forth reasons why that exception is inapplicableto this case: 1. The crucial testimony from Detective Nye that underlies the mutual-combat exception was “inherently improbable or incredible,” “wholly unacceptable to reasonable minds,” and “so contrary to the teachings of basic human experience, so completely at odds with ordinary commonsense, that no reasonable person would believe [it] beyond a reasonable doubt.” (Kolender v. San Diego County Civil Service Comn (2005) 132 Cal.App.4th 1150, 1155, internal quotation marks omitted; United States v. Chancey (11th Cir. 1983) 715 F.2d 543, 546, cited in People v. Mayfield (1997) 14 Cal.4th 668, 735. See AOB 136-141.) Even if Detective Nye’s testimony were credited, appellant’s actions on May 6, 1995 — responding at the last possible momentto a surpriseattack that Tuan Pham launched— cannot be deemed to be “mutual combat.” (See AOB 141-145.) Even viewingthe events of May 6, 1995 against the backdrop of the ongoing war between the Nip Family and the Cheap 34 Respondentdoesclaim that someofappellant’s challenges are forfeited, but none of those claims have arguable merit. We reply to those _ claimsat the end ofthe discussion ofthe six theories. -84- Boys, the shooting of Tuan Pham still does not fit within the concept of “mutual combat” as enacted into statute, and it would be neither appropriate nor constitutional for this Court to enlarge the mutual-combat exception so as to coverthis case. (See AOB 146-153, 154.) 4. At the very least, the second and third reasons just mentioned raise “serious and doubtful constitutional questions” and thus trigger the “canon of constitutional avoidance.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509, Harris v. United States (2002) 536 U.S. 545, 555. See AOB 145, 153- 154, 155.) Wenowturn to respondent’s contentions with regard to these several matters. 1. Detective Nye’s Testimony Did Not Provide Substantial Evidence in Support of the Mutual-Combat Theory, ie.. Evidence That Was “Reasonable, Credible, and of Solid Value” The key evidenceforthe prosecution with respect to its mutual-combat theory was Detective Nye’s testimony that members of the Nip Family and Cheap Boys gangs would “actually seek rivals each time they go out” and that “any time either one of those two gangs saw somebodyfrom the rival gang, they would attemptto kill that other person.” (16 RT 3212-3213, 3211.) As the AOBpointedout, this testimony wasessential to the prosecution theory because without it, the evidence merely showed appellant to be lawfully stopped at a red light at the time Tuan Pham wasshot. In order to turn the attack by Tuan into mutual combat on appellant’s part, the prosecution had to establish that appellant was out looking for a Cheap Boyto do battle with at that time. And the only evidence the prosecution offered to establish that -85- appellant was out looking for a Cheap Boy was Nye’s testimony that ail members of both gangs were always looking to shoot rivals, whenever they were out in public. Without such evidence,there wasno basis for arguing that appellant’s act of shooting was anythingother than justifiable self-defense. Thethreshold problem with this testimony, however,is that it defies human experience and commonsense, as even the Supreme Court has recognized.” (See United States v. Brown (1965) 381 U.S. 437, 455-456.) Respondent’s answerto appellant’s point is not to argue that Nye’s testimony can be deemedto becredible, reasonable, or substantial. Rather, respondent claims that appellant “has misinterpreted Nye’s testimony by overstating Nye’s assertions.” (RB 126. See also RB 120, 136.) Respondent says,first, that “Nye never claimed the sole activity of every gang member waskilling a memberofa rival gang” (RB 120, 126, 136), but appellant has never alleged Nyesotestified. Respondent also says that Nye “never claimed... that no gang memberleft his home unlesshe did so for the purpose ofkilling another gang member.” According to respondent, Nye merelytestified that “armed gang members from one gang would regularly hunt gang members from another gang.” (RB 120, 126, 136. See also RB 121 [“regularly hunting”), 122 (“regularly hunted”].) But notranscript citation is provided to support this “regularly hunted” characterization ofNye’s testimony. Andthe reasonthere is no transcript citation is that Nye neversaid “regularly hunted” or anything comparable to it. Rather, Nye’s testimony was as we have quoted. He testified that gang members would “actually seek rivals eachtime theygo out” * As explained in the AOB 141-154 and below in Subsections 2 and 3, pp. 87 et seq., post, even if Nye’s testimony could be credited, the evidence would be insufficient to establish mutual combat. Without his testimony, there is no support at all for the prosecution’s mutual-combat theory. -86- andthat “any time either one ofthose two gangs saw somebodyfrom therival gang, they would attemptto kill that other person.” (16 RT 3212-3213, 3211.) It is not appellant who has “misinterpreted Nye’s testimony”here. 2. The “Mutual Combat” Doctrine Does Not Apply to a Surprise Attack Such As Tuan Pham Was Attempting to Perpetrate on Appellant Appellant has argued that, viewing the events ofMay 6, 1995 on their own terms, what took place here was an attempted surprise attack by Tuan Pham and that the target of a surprise attack cannot be deemed to have engaged in mutual combat when he defendshislife from the imminentlethal danger posed by the attacker. (AOB 141-145.) Respondent contends that “Tuan Pham’s attack was not a surprise, since appellant and appellant’s passenger anticipated it and were armed and waiting for Pham before Pham could fire his first shot. And Pham’s own unsuccessful actions— attempting to back the Oldsmobile up andsteer the Oldsmobile out ofits position in the left turn lane before retrieving his firearm from the Oldsmobile — suggests both sides anticipated a shoot out before Pham exited the Oldsmobile in order to approach the Honda on foot.” (RB 123.) With due respect, this is nonsensical on severallevels. First of all, as we have already pointed out, no evidence supports respondent’s claim that Tuan made an unsuccessful attempt to movehis car of the left turn lane (see Subsection B.2, p. 80, ante), but even if respondent werecorrect,it hardly matters. For if Tuan did try to movehis car, that does not begin to establish that appellant “anticipated a shootout before Pham exited the Oldsmobile.” In fact, there is not the slightest evidence appellant was aware of Tuan’s presence until Tuan approached the Honda. And even if appellant Had anticipated a shootout once Tuanfailed to move hiscar,that hardly matters, either. All it meansis that appellant now realized that Tuan -87- would attack him and that he would haveto defend himself. The victim of a surprise attack will often recognize that he is being attacked— or is about to be attacked— beforethe assailantfires his first shot, but that does not negate the fact that the assailant has undertaken a potentially deadly attack. Second, insofar as respondent seemsto be suggesting that appellant’s encounter with Tuan Pham was mutual combat because appellant wasalready armed, that suggestion also fails. “[A] defendant claiming ... self-defense will always have had the means to rebuff the victim’s attack, or else the homicide would not have occurred.” (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179.) In addition,“one may knowthat ifhe travels along a certain highwayhe will be attacked by another with a deadly weapon, and be compelled in self-defense to kill his assailant, and yet he has the right to travel that highway, and is not compelled to turn out of his way to avoid the expected unlawful attack.” (People v. Gonzales (1887) 71 Cal. 569, 578. See also Thompsonv. United States (1894) 155 U.S. 271, 278 [similar].) Thus, the fact that an attack of some sort might be expected and that one has armed himself in anticipation of that possibility does not mean that the attack,if it occurs, is mutual combat rather than an attack in which heis entitled to use self-defense. | What makesit particularly difficult to classify the encounter with Tuan Pham as mutual combatis the fact that appellant never had any opportunity to withdraw from the combat. Respondentasserts that “[m]utual combat does not require any opportunity to withdraw in good faith from the struggle” and that “[wyhether or not such an opportunity exists is an independentfactual issue for the jury.” (RB 124.) Respondent might or mightnot be correct in the situation where deadly force is used after lethal mutual combat is under way,but that is not what appellantis talking about here. Appellant is arguing that when deciding whether an encounter is mutual combatat all— whether -88- it meets the definition of“mutual combat”ab initio— it matters that one party poses an imminent deadly peril and the other party never has an opportunity to withdraw from the attack and has no choice but to respond with deadly force or to die. To call that situation “mutual” combat would be to distort the very meaning of the term. (People v. Ross (2007) 155 Cal.App.4th 1033, 1045 [mutual combat is combat “pursuant to mutual intention, consent, or agreementprecedingtheinitiation ofhostilities.”|, original emphasis.) And it would just as plainly violate the constitutional right to self-defense. Respondent also contends that “jurors in the case at hand could reasonably decide . . . that appellant had . . . an opportunity [to withdraw] at somepoint prior to the fatal shooting of Tuan Pham.” (RB 124.) But where would that opportunity have arisen? Respondent does not point to anything specific. It merely refers to the entirety of “the substantial evidence summarized in respondent’s argument VII(b), ante.” (RB 124,referring to RB 98-112.) Appellant takes respondent’s failure to point to any specific evidenceasa tacit acknowledgmentthat no such evidenceexists. (Lewis v. County ofSacramento, supra, 93 Cal.App.4th at pp. 113, 114 [“established rules of appellate procedure . . . require that all assertions offact be supported by citations to the record”; counsel must “provid[e] exact record page citations for each fact cited”’].) Respondentfurther makesthe assertion that this was mutual combat because appellant and Tuan Pham spotted each other “at some point before the _ twocars arrived at the intersection ofWestminster and Brookhurst.” (RB 116. See also RB 112 & 114 [both similar].) However, on none of the occasions wherethis assertion is made does respondentoffer any citation to support it. -89- Undoubtedly the reason for this omissionis that there is, in fact, nothing to cite. It is simply an invented “fact.”*° In a somewhatsimilar vein, respondentalso asserts that “[o]n May6, 1995, appellant andhis passengerprecipitated the gun battle resulting in Tuan Phan’s [sic] death by spotting the Cheap Boys before the Cheap Boys spotted them.” (RB 117. See also RB 119 [similar].) But not only is there (again) nothing in the record to support the claim that appellant and his passenger spotted the Cheap Boysfirst (and respondent again cites nothing), but evenif there were, it is difficult to see how the mere act of “spotting” members of another gang could be deemedto have“precipitated the gun battle.”*” *6 Thatappellant had a gun at the ready before Tuan Pham reached appellant’s car may explain why appellant survived the encounter but provides no basis for finding beyond a reasonable doubtthat appellant saw Tuan Pham before Pham exited his vehicle and started moving toward appellant’s car. 7 Also unreasonable on their face are respondent’s assertions (1) that appellant “never gave the Cheap Boys any opportunity to stop the fight” and (2) that “since Tuan Phan[sic] only emerged from the Oldsmobile with a firearm after unsuccessfully attempting to back the Oldsmobile up and steer it out of the left turn lane,” the inference is that “appellant and his passenger .. . armed themselvesfirst.” (RB 116, 117.) Respondentalso states that “[a]ppellant and his passenger shot Phan [sic] down before he wasableto raise his weapon.” (RB 117.) This contradicts not only the evidence that Tuan wasshotas heraised his gun (13 RT 2602-2603) but also respondent’s own Statement of Facts, where respondent acknowledges that Tuan was shot “[a]s [he] began toraise his shooting arm.” (RB 99.) And, of course, even if Tuan had notyet actually begun to raise his gun, that would not undermine appellant’s use of deadly force in the slightest. The mere act of “drawing or attempting to draw a gun is sufficiently proximate to be deemed imminent. A defendantis not required to wait until an assailant ‘gets the drop on him.’” (Wharton’s Criminal Law (15" Ed. 1994) § 127, p. 184, fns. omitted.) -90- 3. The “Mutual Combat” Exception to the Self- defense Doctrine Does Not Comeinto Play as the Result ofthe Type of Gang War Shown by the Evidence in This Case Even viewing the events of May 6, 1995 against the backdrop of the conflict between the Nip Family and the Cheap Boys, the shooting of Tuan Pham byappellantstill does not fit within the concept of“mutual combat”as embodiedin the law of this State, and it would be neither appropriate nor constitutional for this Court to enlarge the mutual-combat exception so as to cover this case. (AOB 146-154.) a. This Gang War Was Not “Mutual” Combat Appellant does not dispute that the prosecution’s evidence showed there had been a warin the sense ofrecurrent attacks by one gang against the other, but the evidence did not show “mutual combat” such that members of each side were required by law to submit to being shot to death by anyone in the rival gang who endeavored to kill them. Not only would a contrary conclusion distort the term “mutual”and the concept of“mutual combat,” but it would lead to irrational consequences and would be inconsistent with a society governed by lawsrather than bystreet justice. (AOB 146-150.) Respondentdisagrees, claiming that “appellant takes an overly narrow 399view ofthe words ‘mutual combat.’” (RB 123.) Respondent’s disagreement, however, is completely free ofcitation to case law or other authority andfails to address any of the authority cited by appellant. (RB 123-124.) Respondent's position seemsto be that mutual combatwasestablished by evidence from Detective Nye to the effect that “[h]unting rivals was a major gang activity” of Asian gangs, that the gangs “involved themselves in street warfare wherever they happened to meet,” that “[s]hooting rivals enhancedthe status of the gang and the gang member within the gang,” and -9]- that “Nip Family gang members spotting Cheap Boys would attempt to kill them and vice versa.” (RB 123-124.) But all that this testimony established was that members of each gang would attempt to kill members of the other gang. This was “mutual” combatonly in the sense that the gang war,like any war, “possess[ed] a quality ofreciprocity or exchange.” (People v. Ross, 155 Cal.App.4th at p. 1044.) But that is not what “mutual combat” meansin the self-defense context. Rather, “as used in this state’s law of self-defense, ‘mutual combat’ means not merely a reciprocal exchange of blows but one pursuant to mutualintention, consent, or agreementprecedingtheinitiation ofhostilities.” (People v. Ross, supra, 155 Cal.App.4th at p. 1045, original emphasis. Accord, e.g., People v. Fowler (1918) 178 Cal. 657, 671 [“duel or other fight begun or continued by mutual consent or agreement, express or implied.”]; People v. Hecker (1895) 109 Cal. 451, 462 [“prearranged duel, or by consent”]; People v. Rogers (1958) 164 Cal.App.2d 555, 558 [no mutual combat because there was no “prearrangement to fight anybody” and no “sangs agree[ing] to meet for combat’”].) Respondent does not make any effort to argue that the war between the Nip Family and the Cheap Boys satisfied this meaning of “mutual” combat. And certainly none of the individualincidentsprior to May 6, 1995, had the appearance ofbeing mutual combat within the legal definition of the term. As before, the conclusion that this gang war could not be deemedto be mutual combat is also shown bythe fact that it is impossible for a member of one gang who no longer wishes to participate in the war, or who never participatedin the first place, to withdraw from the combat. Ifthere is no way to withdraw, then the combat cannotrationally be deemed to be “mutual”in any meaningfulsense ofthe term. (See AOB 147-149.) Respondent does not dispute appellant’s premise. Respondentdoes not contest that there were no meansby which a gang member could communicate withdrawal. In essence, -92- respondent concedes that withdrawal was impossible. (Cf. AOB 148-149.) Respondent’s sole counter-contention is that the inability to withdraw is irrelevant because mutual combat “does not require any opportunity to withdraw” and that opportunity for withdrawal is “an independent fact question for the jury.” (RB 124.) But, as we have discussed, whatever validity such a contention might arguably have once an individualinstance of actual combatis under way, the contention fails to address the issue of how to define “mutual combat” in the first place. In this context, the fact that withdrawal is impossible is extremely relevant. For if withdrawal is impossible— andif, as a result, the basic rightto self-preservation is deemed to be forfeited— then by nostretch oflogic can a responseto an attack by the other side be deemedto be “mutual” combat. In the AOB,appellant pointed to another irrational consequence of applying the mutual-combatexception to the facts of this case, namely, that in an attack by a memberof one gang against a memberof other gang, the victim would, under the law, be forbidden from defending himselfonly ifthe attacker were from a gang that was at war with the victim’s gang. Giving such a legal advantage to gangs at war would be a legal absurdity. Respondent acknowledges appellant’s point but does not respondto it. (RB 124.) The upshotis that appellant’s case does not fit within the traditional “mutual combat” mold, and trying to force a fit leads to irrational results. No statute or decision cited by respondent or known to appellant justifies the effort to force the square peg of this case into the round hole of mutual combat, nor could this Court lawfully do so now. (See People v. Chun (2009) 45 Cal.4th 1172, 1183 [There are no nonstatutory crimes in this state”’]; Keeler v. Superior Court (1970) 2 Cal.3d 619, 632 [“it is clear the courts cannotgo so far as to create an offense by enlarging a statute, by inserting or -93- deleting words, or by giving the termsused false or unusual meanings.”].) In short, extending the mutual-combat doctrine to appellant’s case would be “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in question” and thus would violate Due Process. (Bouie v. City ofColumbia (1964) 378 U.S. 347, 354.) Moreover, using such a mutual combat theory to deprive a person of the legal ability to defend himself would violate the constitutional right to self-defense. (See McDonald v. City of Chicago, 561 U.S. __, 130 S.Ct. 3020; District ofColumbia v. Heller, 554 U.S. 570.) Atthevery least, the doctrines ofconstitutional avoidance andoflenity in the interpretation of criminal laws forbid reaching the conclusion that the mutual combat exception can be invokedhere. Nothing respondent has said underminesany of appellant’s points as to why the mutual-combat exception is inapplicable to the Tuan Pham shooting incident. b. Uncertainty. Vagueness, and Overbreadth The impropriety of attempting to apply a gang-war theory of mutual combat to appellant’s case becomes even more pronounced when one considers the uncertainties, vagueness, and overbreadth inherent in such a theory — uncertainties even as to the theory’s basic elements — and also whenoneconsiders the manypolicy questions that only a Legislature can and should answer if such a theory is to be created. In his AOB,appellant set forth multiple sets of such uncertainties and questions. (AOB 150-154. Cf. People v. Oates (2004) 32 Cal.4th 1048, 1059 [this Court notes several unresolved questions raised by a party’s interpretation of a statute and concludes, “We would have to read a great deal into the statute in order to address these practical problems, and the statute’s failure to address any of -94. these questions is yet another indication that the Legislature did not intend” the interpretation for which the party was advocating].) Respondent’s brief contains a lengthy discourse that appears to be aimed at answering appellant’s points (RB 125-132), but with due respect, appellant is unable to follow respondent’s arguments. They appear to be neither accurate nor responsiveto the issues raised. Respondent devotes much ofits argument to addressing appellant’s contention that “the prosecutor relied on an unconstitutional mutual combat theory of gang war.” (RB 125, citing AOB 150-154.) According to respondent, appellant’s contention is “[b]ased upon his previously discussed interpretation of the cited testimony regarding Asian gang warfare and his previous references to the prosecutor’s closing argument relying on Nye’s testimony.” (RB 125, citations omitted.) However, appellant did not mention or cite either Detective Nye’s testimonyor the prosecutor’s closing argument in the AOB discussion at issue here, in which appellant pointed out the problems ofuncertainty, vagueness, overbreadth, with the gang-wartheory of mutual combat (AOB 150-154). Indeed, except for our challenge to Detective Nye’s “any time they go out” testimony, appellant’s contentions concerning the mutual-combat theory have all assumed Nye’s testimonyto be accurate. (See AOB 146[“Theprosecution’s evidence, with Detective Nye’s testimony, failed to show there was “mutual combat” between the Nip Family and the Cheap Boys gang at all.”]. See also AOB 148, 149 fn. 101, 150, 155.) Respondent appears to be creating a straw manto fight against. __ Asfor the prosecutor’s arguments, the AOB againdid not cite them in the course of the argument currently being addressed, butit did cite them to extent that they outlined a gang-war theory of mutual combatthat appellant presumed respondent would use on appeal to sustain the verdicts. Respondent claimsthat “appellant has either overstated the meaning ofthe [prosecutor’s] -95- referenced remarksor taken them outofcontext,”citing page 136 ofthe AOB as the place where appellant committed these errors. (RB 127. See also RB 125.) What did appellant say about the prosecutor’s argument at AOB page 136? Hereis the text in question: “Based on [Detective Nye’s] evidence, the prosecutor arguedto the jury that the ‘two gangs were mutually at war,’ that the watring gang members‘think about killing the rivals all the time,’ that ‘they wereall engaged in combat on May6th, 1995,” and that there was ‘no right to self-defense’ in this ‘mutual combatsituation.’ (26 RT 4972, 4979, 5002; see also 26 RT 4977 [self-defense is “not available in the gang situation where both sides . . . are actively seeking outthe otherto fight’].)” (AOB 136.) Appellantis at a loss to understand what overstatements he madein this passage or how he took the prosecutor’s quoted remarks out of context. Indeed, isn’t respondent itself making essentially the same arguments in defense ofthe mutual-combat doctrine as the prosecutor made in the remarks appellant quoted? Isn’t respondent, like the prosecutor, asking this Court to look to gang-related events that occurred at separate times andseparate places from the May 6, 1995, shooting in order to justify the use of the mutual- combatexception to the self-defense doctrine? At any rate, the legal point to which respondent purports to be responding is appellant’s argument that there are many unresolvable definitional issues that, for systemic and constitutional reasons, preclude the application of a gang-war theory of mutual combat to appellant’s case. Detective Nye’s testimony and the prosecutor’s closing argument (see RB 126-130) do nothing to addressthose issues or the systemic or constitutional problems, which is why the AOB did not cite them in the course ofits discussion. Asfar as appellant can determine, respondent’s entire foray into -96- whatthe prosecutor and Detective Nyesaid is an irrelevant tangent. It is not responsive to appellant’s points. Respondent does eventually acknowledge the multiple sets of unresolved and unresolvable questions surrounding the gang war theory of mutual combat (RB 130-131), but respondent does not deal with any ofthem. It does not deny they exist, nor does it try to answer them. Instead, without citing anything, the RB merely saysthat “[n]one ofthe hypothetical problems perceived by appellant could existat a trial like appellant’s, in which the jury (1) determines the facts surrounding the charged crime; (2) determines how those facts would have appearedto the defendant from all the evidence ofthe defendant's background and experience, and from all the evidence surrounding the charged crime; and (3) reaches its verdict based on an objective determination ofhow a reasonable person with defendant's history and background would react when faced with those apparent facts.” (RB 132.) With due respect, appellant does not understand how the quoted sentence respondsto the issues appellant has raised. There is nothing here to which appellant can meaningfully reply. D. Legal Theory #2: The “Initial Aggressor” Theory A second theory on which respondent claimsthe verdicts in Counts 13 and 14 may be sustained is the “initial aggressor” theory. However, as appellant has argued, that theory fails as a matter of law for two independent reasons. First, the “initial aggressor” doctrine only applies to the circumstances and situation of the deceased and defendant at the time the killing occurred. \t does not apply when there has been either a pause in the assault by the initial aggressor, a separation ofthe initial aggressor from the assailed person, or a retreat by the initial aggressor from the scene ofhis initial aggression. Second, the initial-aggressor exception to the self-defense -97- doctrine does not apply when “initial aggressor” is confrontedat a later time by someone who wasneitherthe victim ofthe “initial” assault nor presentat and endangeredby that assault but whohas decidedtotry to exact revenge by his own hand. (AOB 156-162.) In support of these propositions, appellant cited a numberof cases and discussed three of them at some length. (See AOB. 158-161, discussing esp. People v. Robertson (1885) 67 Cal. 646, People v. Baldocchi (1909) 10 Cal.App. 42, and People v. Randle (2005) 35 Cal.4th 987.) Respondent, remarkably, does not deal with any of the case law appellant has cited or discussed. Not a single case appellant has relied on— not Robertson or Baldocchi or Randle or any other decision — is even mentioned in the RB. Indeed, respondent’s discussion of the “initial | aggressor”issue is entirely free of authority of any sort. (See RB 132-134.) Instead, respondent simply asserts that appellant “participated as an initial ageressor” in the prior shootings with which he was charged — as if such participation, iftrue, somehowestablishesthat appellant can be considered to be an initial aggressor when attacked by Tuan Pham ata later date and requires appellant to have allowed Tuan to shoot him to death. Butplainly, it doesn’t, certainly not in light of the case law that appellant has cited and respondent has ignored. Theonly rational conclusion to be drawn from the RB is that no rebuttal to appellant’s argument is possible and that it would require an ex post facto, Bouie-violating reformulation ofthe initial-aggressor doctrine to enable it to be appliedto this case.** 8 Respondent’s argumentseeks to reformulate appellant’s claims into a challenge to the prosecutor’s jury argument, but that is a mischaracterization. Appellant’s claims were, are, and always have beenthat there is no substantial evidence to support the convictions in Counts 13 and 14 and that even if there were a theory that justifies the convictions, they (continued...) -98- These legal problems with the attempt to invoke an initial-aggressor theory to sustain Counts 13 and 14 are themselves dispositive ofthat theory. However,out of an excess of caution, appellant will also briefly reply to two ofthe more salient factual deficiencies in respondent’s argument with regard to the theory. First: The AOB pointed out that Counts 13 and 14 cannot be sustained on the basisthat appellant “actually initiated the war” between the Nip Family and the Cheap Boys, as the prosecutor told the jury, because the uncontradicted evidence wasthat appellant did not start the war. (AOB 157, citing and comparing 26 RT 4978 and 10 RT 1906.) Respondentasserts, again, that appellant “has taken the prosecutor’s remark . ... out of its immediate context and out ofthe context ofthe prosecutor’s longer discussion about self-defense.” (RB 134, citation omitted.) However, respondent does not explain either what the “immediate context” or the “longer discussion” context might be that would make the prosecutor’s words mean something other than whatthey say on their face. Second: Appellant acknowledges that the prosecution presented evidencethat, if credited, indicates that appellant was an initial aggressor in the shootings ofSang Nguyen (Counts 6-7) and Khoi Huynh (Counts 8-9), but in a footnote, appellant has deniedthat the “initial aggressor” label could be attached to the shootings of Tony Nguyen (Counts 2-3) or Huy (PeeWee) Neuyen (Counts 4-5), neither ofwhom was a Cheap Boy. (See AOB 157fn. *8(...continued) would still have to be reversed because the jury was given improperlegal theories on which to convict. Appellant cited the prosecutor’s jury argument merely in order to “identify legal theories that respondent will presumably [and does actually] rely” and to “show legal theories that one or more jurors may haverelied on as the basis for rejecting self-defense.” (AOB 132.) -99- 109.) Respondent’s only reasoned response to appellant’s entire “initial aggressor” challenge involves this footnote. Respondent says that appellant was aninitial aggressoras to the Tony Nguyenshooting because, even though appellant was unarmed andseated in the rear of the shooter’s car, appellant “help[ed] to spot Cheap Boys and Cheap Boyassociates in the car driven by Tony Nguyen and thereby trigger[ed] and aid[ed] and abett[ed] Nip Family gang member Nghia Phan whenhefired his gunshots into Tony Nguyen’s car.” (RB 134.) However, (1) no evidence supportsthe claim that appellant “spotted” the Cheap Boys in Tony’s car, (2) no evidence supports the necessary inference that appellant communicated the Cheap Boys’ presence to Nghia Phan,let alone that he “triggered and aided and abetted” Nghia Phan’s actof firing his gun, and (3) respondentcites nothing to support the unstated premise that a non-shooter,particularly one seatedin the rear ofa car, can be deemedto be an “initial aggressor” for purposes of denying him the right to self-defense on a later occasion. Asfor the shooting of PeeWee Nguyen, respondent says appellant’s statusas an initial aggressoris supported by PeeWee’s testimonythat “before he wasshot, a man asked him ifhe was from T.R.G. and punched him in the face when hesaid he only associated with T.R.G.” (RB 143.) For present purposes, however,it should suffice to note that respondentfails to explain howinitial aggression against PeeWee— who wasnot in any wayassociated with the Cheap Boys — could possibly have made appellant an initial aggressor with respect to Cheap Boy Tuan Pham. But ultimately, these deficiencies are ofmarginal import because, as we have discussed, the legal defects in the effort to apply the initial-aggressor exception are dispositive. -100- E. Legal Theory #3: The “Seeks A Quarrel” Theory Thethird theory that respondentrelies on asa basis for rejecting self- defense is the “seeks a quarrel” theory, but as appellant has explained, that theory fails for four separate reasons: (1) itis premised uponthe unsubstantial testimony of Detective Nye, (2) the theory’s very terms haveto be distorted in order to fit the evidencein this case, (3) the theory is inconsistent with the case law, whichestablishes that the theory “appl[ies] to the circumstances and situation of the deceased and defendantat the time the killing occurred, and under whichhe asserts that he wasjustified in taking the life of deceased,” and (4) application ofthe “seeks a quarrel” theory here would run afoulofthe doctrine of lenity in construing criminalstatutes, the canon of constitutional avoidance, and due process. (AOB 162-164.)* Respondent does not address either of appellant’s latter two points. Nor does respondent cite any case law whatsoever anywherein its discussion ofthe merits ofthis theory. Instead, respondent addresses only points (1) and (2), but eventhis limited defense ofthe “seeks a quarrel”theory is unavailing. Asto the insubstantiality ofDetective Nye’s testimony (appellant’s first point), respondent merely repeats verbatim the assertionsthat it made earlier and that appellant has already addressed in this brief. (See ARB § II.1.C.1, pp. 85 et seq., ante.) There is no needthis the ARB to repeatourearlier reply here. We incorporate that discussion by reference. 8 People v. Glover (1903) 141 Cal. 233, 242. “0 Appellant refers to the theory as the “seeks a quarrel” theory rather than as the “contrived self-defense” theory, the other label sometimes used for the theory, because the jury at appellant’s trial was instructed only in the language of “seeks a quarrel.” (27 RT 5285-5286.) As a result,if there is a difference between the two formulations, only the “seeks a quarrel” formulation may constitutionally be used here on appeal. (Cf. ARB § JI.1.B.1, pp. 75 et seq., ante [cannotaffirm on basis of theory not presented to jury].) -101- In responseto appellant’s second point— the distortion ofthe “seeks a quarrel” theory’s terms — respondent arguesthat “the concept hunting for rivals to shoot equates with seeking a quarrel with the intentto create a real or apparentnecessity ofexercising self-defense.” (RB 136.) However,as the AOBpointed out, this is wrong factually and logically. The “hunting” evidence from Detective Nye mostdefinitely did not indicate that members of the Nip Family or Cheap Family would “hunt[] for rivals with the intent to create a real or apparent necessity ofexercising self-defense.” (RB 136.) Rather, according to Nye’s evidence, gang members simply sought out the opportunity to shoottheir rivals. Not only does it require a distortion of the English language to equate “opportunity to shoot” with “seeking a quarrel,” but it would defy commonsense. As the AOB pointed out, the very act of creating a needfor self-defense would increase the dangerto the “hunter” and would decrease the chance that the “hunt” would be successful. Respondent fails to grapple with any of these problems. And, as we have pointed out, respondent does not deal at all with the remainder of appellant’s arguments, points (3) and (4), ante. F. Legal Theory #4: The “Decent Person” Theory In the AOB,appellant arguedthat a fourth impropertheory wasoffered below as a basisfor rejecting self-defense in this case. Specifically, the Jury instructions and the prosecutor’s argumentto the jury authorized the jury to reject appellant’s claim of self-defense on the impermissible basis that appellant was a gang member and wasnot the type of reasonable, decent, good, ordinary person to whom the doctrine ofself-defense was applicable. In support of this claim, appellant quoted extensively from both the instructions and the prosecutor’s argumentto the jury. (AOB 165-169.) -102- To its credit, respondent does not claim that such a “decent person” theory is a valid one and maybe usedtojustify the verdicts in Counts 13 and 14. Rather, respondent’s contention is, in essence, that no such theory was presented to the jury. According to respondent, the prosecutor’s references to “decent” persons were merely “emotional language” that the prosecutor used “in order to emphasize that appellant could not set up his own standard ofconduct as a criminal street gang memberin ordertojustify or mitigate the charged crimes.” (RB 138.) The first flaw in respondent’s positionis that it entirely ignores the instructions given the jury. As appellant pointed out (AOB 168-169), instructions indicated that a defendant must be a reasonable person himselfin order to invoke self-defense. Thus, one instruction told the jury that the imminence of the danger must “appear at the time fo the slayer as a reasonable person.” (27 RT 5281-5282, 3 CT 1048; CALJIC No. 5.12.) Another instruction explained that a person may defend himself “if, as a reasonable person, he has grounds”for believing himself in danger. (27 RT 5282-5283, 3 CT 1051; CALJIC No. 5.30.) And most explicitly of all, an instruction informedthe jurors that “[1]f one is confronted by the appearance of danger which arousesin his mind as a reasonable person an actual belief and fear that he is about to suffer bodily injury and ifa reasonableperson in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger,” then self-defense would be available if he acted on the basis of those fears. (27 RT 5284, 3 CT 1054, CALJIC No. 5.51.) This instruction certainly indicated both that the defendant had to be “a reasonable person” and that his fears had be those that a “reasonable person” would also harbor. Thereis, at the very least, a reasonable likelihood that jurors would have so understoodthe instructions. -103- The prosecutor’s argument to the jury is the one facet of the current issue that respondent does address, but even that limited discussionis flawed. For one thing, it does not contain a single citation to the transcripts, for reasonsthat are readily apparent. Yes, in the course of her argument about manslaughter, the prosecutordid refer to the fact that a person cannot “set up their own standards . . . [like it’s not an ordinary or reasonable gang member.....” (26 RT 4962.) However, the prosecutor immediately explained that such standardsare not allowed precisely “[b]ecause [the law hasset up] a specific exception for good, decent people.“ (Jbid.) “[I]t’s very limited situations,” the prosecutor said, applicable to “a decent, ordinary personin that uniquesituation.” (bid.) “When you look at that instruction,” she added, “you’ll see it specifically says an ‘ordinary and reasonable person.’” (26 RT 4966.) She emphasizedthis point repeatedly, characterizing the reasonable person standardas applying to “an ordinary, decent, reasonable 39 66 99 66person,basically a good person,” “a good, decent person,” “a decent ordinary person,” “good decent people”(twice),“a decent ordinary person”(twice), “a decent, reasonable, ordinary person,”and an “average, decent, reasonable person.” (26 RT 4961-4962, 4966-4967.) She specifically contrasted gang members with “a decent person” and “us, as decent people” and “ordinary people.” (26 RT 4972, 27 RT 5169.) This was the background that the prosecutor referred to when she addressed the issue of self-defense. “Again it’s the reasonable person standard,” she said, referencing her earlier remarks about “decent” persons. (26 RT 2475.) - And,tellingly, the prosecutor was now invoking those remarksin the context ofthejury’s decision as to whether“the circumstances [were] such as would excite the fears of a reasonable person placed in a similar position.” (Ibid.) But the question of whether or not a reasonable person would be in -104- fear ofimminent death or great bodily injury was hardly a debatable question in appellant’s case. Tuan Pham was approaching appellant with a gun and,as the trial court would later note, “was actively seeking to kill the defendant.” (31 RT 6082.) Appellant was indisputably in immediate, mortal danger, and any reasonable person would understand the situation as such. Thus, the obvious purpose of the prosecutor making reference to her discussion of the “reasonable person standard”in this self-defense context— indeed, the only conceivable purpose—was to communicateto thejury that self-defense only applied to “a decent person,” to “an ordinary, decent, reasonable person, basically a good person,” and not to gang memberslike appellant. That is the import of the prosecutor’s argument, andit is one that any juror would have understood andcredited, especially since the prosecutor told thejury she knew the law andsincethetrial court effectively validated the legal points she made in her argument. (26 RT 4943-4944, 27 RT 5231.) At a minimum,there is a reasonable likelihood that the prosecutor’s remarks would have been so understood and credited by one or morejurors. In sum, then, respondent’s effort to deny that the “decent person” theory waspresentedto this jury suffers from three fatal flaws: (1) it fails to accountfor the instructions, (2) it misperceives the prosecutor’s argument, and (3) its deficiencies are especially prominent whenthe instructions and the prosecutor’s argument are measured against the “reasonable likelihood” standard. (See Boydev. California (1990) 494 U.S. 370, 380; People v. Clair (1992) 2 Cal.4th 629, 663.) G. Legal Theory #5: The “Emotional Reaction” Theory The record in this case suggestsa fifth theory that might conceivably have been invoked to justify the jury’s rejection of self-defense with respect to Counts 13 and 14, namely,a theory that self-defense is not available unless -105- the defendant not only reasonably believed he was in imminent danger but also had an emotionalreaction offear to the danger. In the AOB,appellant argued (1) that this theory emanated from the instructions andthe prosecutor’s argument, (2) that the theory wasinvalid as a legal matter (AOB 169-171) and (3) that even if the theory did exist, the theory lacked the necessary factual support so as to allow this Court to uphold the verdicts in Counts 13 and 14 (AOB 171-174). As wastrue with the “decent person”theoryjust discussed, respondent commendably doesnotclaim that the “emotional reaction”theory is a valid one. In effect, respondent admits that such a theory is unavailable to support the verdicts and thus that appellant’s point (2) is correct. Respondent’s only argument of consequenceis that this theory was not presentedto the jury at appellant’s trial, an argumentthat goes not to appellant’s sufficiency-of-the- evidence challenge to the verdicts but solely to the question of whether reversal would be required if the evidence were sufficient to authorize the rejection of self-defense in this case under some valid and applicable theory (see AOB 194-197). Respondent’s contention is that the jury was not presented with an “emotional reaction” theory because “[t]he prosecutor did not misstate the law by using the word ‘emotion’ since fear is an emotion.” (RB 140.) Again, however, respondent completely ignores the instructions. As the AOB pointed out, the instructions themselves indicated that appellant had to have an emotional reaction of “fear” in addition to a “belief” in imminent danger in order to invokeself-defense, and the prosecutor’s argument exploited this language in a way that madeit reasonablylikely thatjurors would construe the instructions to require an emotional reaction of fear. (AOB 170.) Respondent’s failure to address the instructions is a tacit concession that appellant’s point (1) is correct in andofitself. -106- Moreover, even if it were appropriate for respondent to disregard the instructions (whichit isn’t), respondent’s contentionthat “[t]he prosecutor did not misstate the law by using the word ‘emotion’ since fear is an emotion” would still be unavailing . For one thing, the prosecutor did not simply “use the word ‘emotion.’”” The phrase she uttered was “so overcome with emotion.” (26 RT 4875.4") ~ ‘But more fundamentally, the “fear” upon which self-defense depends is not the “emotion” form of“fear.” A defendant can rely on self-defense without experiencing the emotion of feeling afraid. As “a leading criminal law treatise’ points out,“if|a defendant] acts in properself-defense, he does not lose the defense [even if] he enjoys using force upon his adversary because he hates him.” (2 LaFave, Substantive Criminal Law (2d ed. 2003) § 10.4(c), pp. 149-150.) Thus, quite plainly, the “fear” that allows an individual to resort to lethal self-defense is not fear as an emotion, but fear as ina belief, apprehension, or concern about imminent death or great bodily harm. It is this difference between fear as an emotion and fear as an awarenessor expectation of impending harm that the prosecutor waserasing by her argument and that was consistent with the instructions. (See, e.g., § 197, subd. 3 [homicide by any personisjustifiable “[w]hen committed in the 4 See also the prosecutor’s related discussion in the context of manslaughter, e.g., 26 RT 4961 (“so much feeling in the person,that they’re overwhelmed”), 4962 (“overwhelmedbyfeelings” and “overwhelmedatthat particular moment”), 4966 (“so overwhelmingtojust overcome yourrational thought with passion”). “2 In re Jorge M. (2000) 23 Cal.4th 866, 873. % See, e.g., Commonwealth v. Acevedo (Mass. 2006) 845 N.E.2d 274, 287 (recognizing that self-defense may be available where the defendant “presents no evidence about his emotional state [or] denies experiencing strong feelings of passion, anger, fear, fright, or nervous excitement.”). -107- lawful defense of such person . . . when there is reasonable ground to apprehenda designto . . . do some great bodily injury, and imminent danger of such design being accomplished.”]; People v. Flannel (1979) 25 Cal.3d 668, 675 [“To be exculpated on a theory of self-defense one must have an honest and reasonable belief in the need to defend.”]; People v. Mitchell (1939) 14 Cal.2d 237, 252 [“The essence of the self-defense situation is a reasonable and bonafide belief in the imminence of death or great bodily harm.”].) As a result of respondent’s tacit concession that the “emotional reaction” theory is not a valid basis upon which this Court may sustain the verdicts in Counts 13 and 14 andthat the theory would be an improperbasis for thejury to haverejected self-defense as to those counts, appellant’s further | argument that the evidence was insufficient to support such a theory has become moot. (See AOB 171-174.) Nevertheless, inasmuch as respondent devotes considerable time andeffort to the argument, we will respond briefly here. Appellant’s insufficient-evidence argument focused on the prosecutor’s contention that appellant’s act of smiling at witness Robert Murray shortly before Tuan Pham arrived at the Honda indicated that appellant had no emotional reactionoffear to the deadly situation confronting him. The AOB arguedthat no evidence supported the prosecutor’s contention and that, to the contrary, sources from multiple disciplines—including the U.S. Government and a Vietnamese company -— make clear that it would be a culturally ignorantinterpretation of appellant’s act for this Court to rely on it in support of an “emotional reaction” theory for rejecting self-defense. Respondenttakes issue with the AOB argumentat somelength,butat no point does respondentoffer any basis to doubt the accuracy ofthe AOB’s -108- premise, i.e., that the smile of a Vietnamese person can convey multiple emotions, including fear, anxiety, and confusion, and cannot be accurately interpreted, particularly by Westerners. Respondent’s only tenable point is that “appellant may notrely on the internet sources he now cites because they are not part of thetrial record, were never offered into evidenceat trial, and have not been embracedby both parties as accurate” and that appellant has not “sought judicial notice for these internet sources.” (RB 141.) But all appellant is attempting to do 1s to show that the prosecutor’s argument about appellant’s smile was unsupported and cannotbe relied on here. Moreover, the practice of bringing social facts to an appellant court’s attention has an established lineage. (Rivera v. Division ofIndustrial Welfare (1968) 265 Cal.App.2d 576, 590, fn. 20 [“The ‘Brandeis brief,’ which brings social statistics into the courtroom, has become a commonplace.”].”*) “ See, e.g., People v. Albillar (2010) 51 Cal.4th 47, 62 (citing book on gangsasa basis for rejecting claim ofinsufficient evidence re gang enhancement); In re Marriage Cases (2008) 43 Cal.4th 757, 828 fn. 50 (citing N.J. Civil Union Review Com., First Interim Rep. (Feb. 19, 2008) pp. 6-18 [as ofMay 15, 2008] regarding problemsfaced by children raised by same-sex parents whoare not allowed to marry); Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 723, Werdegar, J. dissenting (citing [as of Nov.30, 2009] as source of information relevant to exemplary damagesfor a corporation); People v. Sorden (2005) 36 Cal.4th 65, 79 fn. 2, Kennard,J., concurring (citing Health & Wellness Resource Center, at http:// infotrac.galegroup.com [as of June 23, 2005] to show that “‘periods of — adjustment disorder . .. may evolve into a major depressive disorder’”). See also, e.g., Ballew v. Georgia (1971) 435 U.S. 223 (relying on social science to concludethat larger groups of factfinders are more reliable than smaller ones); Roper v. Simmons (2005) 543 U.S. 551, 569-570, 573 (relying on social science to concludethat Constitution prohibits execution ofjuveniles). -109- ‘H. Legal Theory #6: The “Multiple Motivation” Theory Thesixth and final theory in the record that could support the rejection ofself-defense as to Counts 13 and 14 is the “multiple motivation”theory, 1.e., the theory that self-defense is unavailable if a defendant whoacts in self- defense also has some other motivation for acting as well. This theory, premised upon Penal Codesection 198, was presentedto thejury via CALJIC No.5. 12 (see 27 RT 5281), but as a careful examination oflegislative history shows, and as commonsense confirms, the theory is not in fact a valid one. (AOB 174-193.) Respondent, of course, disagreesthat error occurred. Its argument, in full, is that “(notwithstanding appellant’s contention to the contrary, the trial court’s instruction doesnot bar self-defense to a defendant whoentertains multiple motives whenkilling his assailant; nor has any opinion so interpreted the pertinent language of Penal Code section 198. Like Penal Code section 198, the instruction simply bars the defendant from acting upon any ofhis motives other than his reasonable fear of death or great bodily injury. (See: People v. Trevino (1988) 200 Cal.App.3d 874, 877-880.)” (RB 143.) The problems with respondent’s argument are profound. First ofall, respondent is positing a distinction between a defendant who “entertains multiple motives when killing his assailant” and a defendant who“act[s] upon any of his motives other than his reasonable fear of death or great bodily injury,” as if appellant were making the former argumentbut not contesting the latter point. (/bid.) But appellant most definitely does disputethelatter point. Indeed, the AOB’sentire 20-page argument was devotedto refutingit. Appellant disputed it on multiple bases, none ofwhich respondent addresses. Indeed, the AOB pointed out that the very distinction respondent draws -110- between “entertaining multiple motives when killing” and “acting upon the other motives”is illusory and incapable of being implemented in the real world. (See AOB 191.) Respondent does not answeranyofthe points raised in appellant’s briefing. We showedfrom thelegislative history that the language ofPenal Code section 198, upon which respondent’s “acting upon other motives” contention is based, wasnot intendedto create the theory that respondentseeks to defend but rather was intended merely to confirm that a defendant’s subjective belief in, or fear of, imminent danger had to be a reasonable one. (AOB 175-185.) Respondent does not address the legislative history, let alone cast any doubt uponit. We pointed out that respondent’s “acting upon other motives” contention is inconsistent with common sense (AOB 191-192), with the Constitution (AOB 187), with the only “leading criminal law treatise’”* to have addressed it (AOB 186, 192), and with other statutes enacted at the same time as section 198 (AOB 185). Respondent does not address these matters, either. Wefurther noted that People v. Trevino, supra, 200 Cal.App.3d 874— the sole authority cited by respondent — did not consider the various points appellant has raised here andthusis not authority for rejecting them andthat, in addition, the language from 7revino that respondentrelies on was dictum. (AOB 187-190.) Again, the response from the RB is silence. Finally, we argued that the doctrines of constitutional avoidance and oflenity in the interpretation ofcriminallaws would preclude this Court from reaching the conclusion for which respondent argues. (AOB 186-187.) Respondent says nothing in response. - & In re Jorge M., 23 Cal.4th at page 873, referring to LaFave & Scott, Substantive Criminal Law. » -111- In sum,respondent hasnot effectively answered appellant’s arguments except in the most perfunctory, conclusory fashion. There is nothing for appellant to do here except to reaffirm that his AOB arguments remaintrue. I. Even If This Court Were to Conclude That There Exists One or More Legally Valid Theories upon Whichthe Rejection ofSelf-Defense Might Be Based, Counts 13 and 14 Would Have to Be Reversed In the AOB,appellant has argued that even if this Court were to concludethat one or moreofthe legal theories discussed above could validly support the rejection of self-defense as to Counts 13 and 14, a reversal of those counts would still be required unless the Court concludedthat a// ofthe theories presented to the jury were valid because there is no basis for determining beyond a reasonable doubt that any particular theory was or was not relied upon. (AOB 194-197.) Respondent does not disagree. Its only contention is that the jury was presented with no invalid theories. (RB 144- 145.) As the preceding 30-plus pages of the instant ARB makeclear, appellantdisagreeswith that contention, but since respondentdoesnot dispute that reversal would be required if any invalid theory were presented to the jury, there is nothing to which appellant needstoreply here. J. Respondent’s Forfeiture Arguments Have No Merit Respondent makes numerous arguments that appellant’s claims are forfeited. All of those arguments are meritless. Primarily, respondentarguesthat appellant’s challenges to Theories #1 to #6 are forfeited because “appellant failed to object in the trial court to the | prosecutor’s challenged argument and failed to ask the trial court for a curative admonition that would have cured the alleged prejudice.” (RB 133, 135-136, 137. See also RB 126, 131, 138, 143, 144 [all similar].) Respondentis wrong for at least four reasons: -112- 1. Claimsofinsufficient evidence — which appellant makesas to all theories that have been proposedas bases for upholding the verdicts in Counts 13 and 14 — are not forfeited by a supposed failure to object below. (People v. Butler (2003) 31 Cal.4th 1119, 1126; People v. Rodriguez (1998) 17 Cal.4th 253, 262.) 2. Claimsthat invalid theories were presented to thejury—which appellant has madeasto all theories but which would comeinto play only if there were a valid basis for upholding Counts 13 and 14 — are not forfeited when the claims are based on both the instructions and arguments by the prosecutor that are consistent with the instructions. (People v. Morgan (2007) 42 Cal.4th 593, 612-613; People v. Green (1980) 27 Cal.3d 1, 63- 69.) 3, Objections to the prosecutor’s arguments would have been futile, since the trial court believed that those arguments amounted to “good efforts .. . to be accurate” and did not contain any “major difference” from the instructions. (27 RT 5231.) 4. If, despite the foregoing, this Court were somehow to conclude that any ofappellant’s claims would otherwisebeforfeited, then appellant would have been denied his Sixth Amendmentright to the reasonably effective assistance of counsel, since there could be no tactical or reasonable reason to allow the jury to convict appellant of murder based on an invalid theory. (Strickland v. Washington (1984) 466 U.S. 668; People v. Pope (1979) 23 Cal.3d 412, 426.) Respondent contends that appellant’s challenge to the “multiple motivations” theory (Theory #6) is also forfeited because appellant “fail[ed] -113- to request amplification or clarification of the instruction in the trial court.” (RB 48, 50.) This contentionfails for the same four reasonsas just discussed and for a fifth reason, as well: 5. While instructing the jury using statutory languageis generally appropriate, a trial court has a sua sponte duty to clarify terms “when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance”or “when a statutory term does not have a plain, unambiguous meaning, has a particular and restricted meaning, or has a technical meaning peculiar to the law or an area of law.” (People v. Estrada (1995) 11 Cal.4th 568, 574-575; People v. Roberge (2003) 29 Cal.4th 979, 988, internal quotation marks and citations omitted.) Here in the present case, the clause in the instructions that “the party killing must act under the influence of those [reasonable] fears alone” (27 RT 5281) plainly meets the requirement for sua sponte instruction. The actual meaning of the clause “differs from the meaning that might beascribed to the same terms in commonparlance.” The clause “does not have a plain, unambiguous meaning.” It has “a particular and restricted meaning” under the law. Thetrial court thus had a sua sponte duty to clarify it. Additionally, the court had a duty to give a corrective instruction when the prosecutor “ma[dje an improper contrary suggestion.” (People v. Livaditis (1992) 2 Cal.4th 759, 784.) K, In Sum 46 See AOBat page 193. -114- The evidencein this case showswithout contradiction — and without any dispute from respondent — that appellant was in immediate, actual, and mortal danger from Tuan Pham at the time he shot him and that appellant waited until the last possible moment before acting. Notwithstanding the immediate mortal danger, the position of the prosecution below and of respondenthere on appeal has been that appellant had no rightto protect his life and that, in essence, the law required him to submit to being shot to death there on the street by a vigilante gang member. Six theories were offered below to support that result, and a seventh theory has been proposed on appeal, but noneofthe theories can lawfully be applied here, not without violating or improperly expanding the law ofthis State and not without violating the supreme law ofthe land. And ifthere were doubts about the impermissibility of applying any of these theories to appellant, those doubts would haveto be resolvedin favor of appellant under the doctrines of constitutional avoidanceandoflenity in the interpretation of criminal laws. And even assuming that one or more ofthe theories would justify the rejection of self-defense, thejudgments as to Counts 13 and 14 still could not stand unless all ofthe theories presented to the jury werevalid ones. And on this record, no such conclusion would bepossible. -115- 2. IF COUNTS 13 AND 14 ARE NOT ORDERED DISMISSED FORTHE REASONSSETFORTH IN THE PRECEDINGSECTION, COUNT 13 WOULD NONETHELESS HAVE TO BE SET ASIDE BECAUSE EVENIF SELF-DEFENSE COULD BE REJECTED ON A MUTUAL-COMBAT OR MULTIPLE-MOTIVATION THEORY, SUCH A HOMICIDE WOULD BE NO MORE THAN MANSLAUGHTER In the AOB,appellant has argued that, even assuming arguendo the guilty verdicts in Counts 13 and 14 could permissibly be premised a theory of mutual combat or multiple motivation, those theories would only have justified manslaughter convictions, not murder. (AOB 196-199.) With respect to mutual combat, appellant relied on the common law and on an 1864 decision from this Court, as well as two morerecent decisions to the same effect. (3 Blackstone’s Commentaries 184; People v. Sanchez (1864) 24 Cal. 17, 27; People v. Lee (1999) 20 Cal.4th 47, 60 fn. 6; People v. Whitfield (1968) 259 Cal.App.2d 605, 609.) Appellant acknowledged that language in People v. Bush (1884) 65 Cal. 129, 129, might appear to be in conflict with these three cases, but appellant noted (1) that Bush had not been interpreted that way (see People v. Ross, supra, 155 Cal.App.4th at p. 1043 fn. 11) and (2) that this Court’s more recent decision in Lee cited Sanchez’s language with approval. (AOB 196-197.) Respondent, in its brief, ignores the common law. And while respondent mentionsthe holding ofSanchez, it makesno effort to explain that holding away. Instead, respondent simply points to the arguably contrary language from Bush but fails to address any ofthe post-Bush decisions (Lee, Ross, and Whitfield) except to assert, in conclusory fashion, that these decisions were “err[oneous]” in their understanding of Sanchez. (RB 145- 146.) Appellant stands by his analysis of the state of the law. -116- As for the multiple-motivations theory, respondent asserts that “no legal authority ... supports the manslaughter claim nowraised by appellant.” (RB 146.) Respondent is wrong. In the AOBat page 198, appellant cited People v. Levitt (1984) 156 Cal.App.3d 500, 509,for its holdingsthat “if the degree of force used[is] influenced by any motivationsaside from a belief in the necessity to act in self-defense, then manslaughter [is] an appropriate verdict on that ground alone.” (See also id. at p. 510 [voluntary manslaughter verdict support by fact that jury could have found that defendant’s lethal response to the danger he faced “was attributable more to a preconceived intent to kill than to the actual danger.”].) Respondent has ignored Levitt. -117- 3. REVERSAL OF COUNTS 13 AND 14 IS REQUIRED BECAUSE OF SEVERAL INSTRUCTIONAL ERRORS REGARDINGSELF- DEFENSE Evenifall of the preceding arguments were rejected, the convictions in Counts 13 and 14 wouldstill have to be reversed becauseoferrorsin the instructions relating to self-defense. (See AOB 202-217.) Respondent, however, disagrees. (RB 147-162.) A. The Trial Court Committed Reversible Error by Refusing to Instruct the Jury That There Is But One Standard for Self-Defense, Applicable to All Persons At pages 202 to 206, the AOBhasarguedthatthe trial court committed reversible error when it refused to instruct the jury that “[t]he law of self defense applies equally to all persons, regardless of whether he or she is a memberofa criminal street gang.” (See 3 CT 954; 25 RT 4872.) Respondentdoesnot deny that the instruction wascorrect as a matter oflaw nor that it was relevant to the case. Rather, respondent’s contention is that the proposed instruction was “argumentative” and “duplicative.” (RB 147-148.) It was “argumentative” because “it singled out a special class of persons, namely criminal street gang members, in order to invoke favorable inferences from the trial evidence.” (RB 147.) It was “duplicative” because ‘it added nothing relevant to the trial court’s general self-defense instructions.” (RB 148.) Although the instruction did talk about self-defense being available “whether or not” a person was a gang member, that cannot reasonably be characterized as an effort to “invoke favorable inferences from the trial evidence.” Actually, the instruction drew no “inferences from the evidence” at all. It simply made an accurate statement about the law. Nor did the “whether or not a gang member” language make the instruction -118- “argumentative” in any other way that appellant can perceive. However, even if it did, the trial court should then havetailored the instruction to eliminate the (supposed) argumentativeness, rather than refuse it entirely. (Peoplev. Fudge (1994) 7 Cal.4th 1075, 1110 [“To the extent that the proposed instruction was argumentative, the trial court should have tailored the instruction to conform to the requirements of [People v.]/ Wright, rather than deny the instruction outright.”]; People v. Hall (1980) 28 Cal.3d 143, 159 [similar].) If, as respondent claims, the argumentativeness was in the “whether or not” clause, the trial court could simply have eliminated that clause andleft the rest. Moreover,the trial court did not refuse the instruction on the basis of its alleged argumentative nature. Thus, respondent’s effort to invoke that basis now on appeal would improperly deprive appellant of the opportunity to change the instruction to satisfy the court’s purported concerns. (See ARB § 1.2.A.2.a, pp. 40 et seq., ante.) As for respondent’s claim that the instruction was “duplicative” because it “added nothing to the trial court’s general self-defense instructions,”that is plainly untrue. Without the defense’s proposed language, the instructions could reasonably be interpreted as allowing the jury to view self-defense as applicable only to a person who was himself a decent, reasonable person,thus allowing the jury to reach a conclusionto that effect, and as we haveseen, the prosecutor’s argumentto the jury— the language of which respondent has ignored— encouragedthe jurors to do so. (See ARB, § IL.1.F, p. 102, ante). | Respondent contends that any error was harmless because ‘‘'sjubstantial evidence supported the jurors’ verdicts andtheir finding, under the trial court's instructions, that appellant was not acting in self-defense when he killed Tuan Phan.” (RB 151.) This contention is another instance of -119- respondent’s fundamentally incorrect approach to the question ofprejudice. As wehave pointed out,”’ there is “a striking difference between appellate review to determine whether an error affected a judgment and the usual appellate review to determine whether there is substantial evidence to support a judgment.’” (People v. Arcega, 32 Cal.3d at p. 524, internal quotation marks omitted.) Respondent’s approach to the question of prejudice cannot be squared with governing law.* B. If This Court Rejects Appellant’s Contention That Appellant’s Belief That His Life Was in Imminent Danger Was Reasonable as a Matter of Law, the Trial Court Committed Reversible Error by Refusing to Instruct the Jury on Imperfect Self-Defense Appellant has argued in the AOBthat, unless the Court agrees that there was no basis for doubting the reasonableness of appellant’s fear of imminent peril, the trial court committed reversible error by refusing to instruct the jury on imperfect self-defense. (AOB 206-207.) Respondentbeginsits counter-argument, uncontroversially enough, by sayingthat “thetrial court need only give an imperfect self-defense voluntary manslaughter instruction when faced with substantial evidence that appellant “7 See ARB section I.C.1, page 14 et sequitur, ante. 8 Ofrespondent’s other arguments here, the only one meriting a reply is the contention that appellant is precluded from pointing to the prosecutor’s remarks when arguing prejudice becausetrial counsel failed to object to those remarksat trial. (RB 149.) But whether a prosecutor exploited an error has long been understood to be highly relevant to questions of prejudice. (See, e.g., People v. Lee (1987) 43 Cal.3d 666, 677; People v. Woodard (1979) 23 Cal.3d 329, 341; People v. Harvey (1985) 163 Cal.App.3d 90, 106.) As far as appellant is aware, there is no law in California or any other jurisdiction that supports respondent’s notion that a prejudice inquiry can only look to statements to which an objection was lodged below. Certainly, respondent cites nothing so suggesting. -120- killed the victim in the actual but unreasonable belief in the necessity to defend himself.” (RB 152.) And respondent does not deny that a person in appellant’s situation would conclude that his life was in imminent, mortal danger. Still, respondent says the instruction was properly refused. According to respondent, it was permissible to refuse the instruction because the only possible interpretation of the evidence was that appellant did not shoot Tuan Pham inorderto protect himselffrom the imminent, mortal danger that Tuan posed but “for reasons unrelated to defending himself, e.g., to enhancehis status as a Nip Family gang memberand to enhancethestatus of Nip family in its gang war with the Cheap Boys.” (Jbid.) This contention is unsupported and unsupportable ipse dixit. It is another manifestation of respondent taking unreasonable liberties with the record and commonsense. Moreover, respondent’s view is onethatthetrial court itself necessarily rejected when it agreed to give instructions on “perfect” self-defense. So, even ifthere were some doubt about the evidence of self-defense (which there isn’t), the trial court’s decision to instruct, without objection by the prosecution, would be determinative. (People v. McKelvy (1987) 194 Cal.App.3d 694, 705 [“‘A trial judge’s superiorability to evaluate the evidence rendersit highly inappropriate for an appellate court to lightly question his determination to submit an issue to the jury. A reviewing court certainly cannot do so where,as here, the trial court’s determination was agreeable to both the defense and the prosecution.”].) There is no arguable merit to respondent’s contention. And since respondent does not deny that if error did occur, a reversal is required, no further reply is needed here. -121- C. The Trial Court Committed Reversible Error by Failing to Instruct the Jury Sua Sponte on the Legal Meaningof “Mutual Combat” In the AOB,appellant argued that, assuming arguendothe verdicts in Counts 13 and 14 could be upheld on a “mutual combat”theory,thetrial court committed reversible error by failing to instruct sua sponte on the legal meaning of “mutual combat.” (AOB 207-211.) Respondent disagrees. Respondent asserts that the term “mutual combat”in a jury instruction has “‘the power to mask ambiguity and even inaccuracy’” only when used “in a case which presented no facts supporting it.” (RB 155.) Respondent does not explain why this would be so. Ifthe term is potentially misleading to a juror(andit is), why would it matter if there is no evidence, a little evidence, or a lot of evidence to support it in its proper sense? How doesthe admissionofevidence resolve an “ambiguity” in a legal instruction? How does it correct an “inaccuracy”? In the present case, the prosecutor advanced a gang-war theory of mutual combatthat ignored the essential requirementofa pre-hostilities mutual agreement or consent to do battle. (See ARB § II.1.C.3.a, pp. 91 et seq., ante.) To the extent any juror relied upon mutual combat to reject self-defense, an instruction properly conveying this mutuality requirement could have altered the outcome. Certainly, there waspreciouslittle evidence,ifany, that appellant had agreed or consented to engagein hostilities with Tuan Pham before Pham reachedthe rear of the driver’s door of appellant’s car and started to raise his gun arm. Respondent also contends that any error “would not have warranted reversal under any standard.” (RB 156.) Its position is that the question of whether the killing of Tuan Pham was done in mutual combat was “not a complex one underthefacts of the case and would not have been resolved differently had thetrial court further clarified the words ‘mutual combat” -122- because “[s]ubstantial evidence supported the prosecution’s mutual combat scenario....” (/bid.) | Asa threshold matter, respondent misstates the test used under the federal Constitution. That test requires an appellate court to reverse unlessit can “conclude beyond a reasonable doubt that the jury verdict would have been the same absentthe error.” (Neder v. United States, 527 U.S. at p. 19.) To make this determination, the court “asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted [instruction].” (/bid.) A reversalis called for it “where the defendant contested the omitted element and raised evidence sufficient to support a - contrary finding.” (/bid.) Respondentdoesnot attempt to claim that the error can be deemedto be harmless underthis standard. (See also People v. Mil (2012) ss Cal.4th _, 135 Cal.Rptr.3d 339, 352 [“Our task, then, is to determine whetherthe record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.”], internal quotation marks omitted.) But even using the Watson standard, respondent’s sufficiency-of-the- evidence approachis wrong, as we have pointed out. Moreover, as the AOB discussed at page 207, the question of mutual combat wasa close one,close enoughthatthere is at least a “a reasonable chance, more than an abstract possibility”that a different outcome would have occurred in the absence ofthe error. (College Hospital v. Superior Court, 6 Cal.4th at p. 715, original emphases.) -123- D. The Verdicts on Counts 13 and 14 Must Be Reversed Because the Jury Was Not Instructed on the Impossibility of Withdrawal with Respect to the Mutual-Combatand Initial-Aggressor Doctrines Appellant has argued in the AOBthat ifthere werevalid basesto reject self-defense as to Counts 13 and 14, then — underthe circumstancesofthis case andthe theories ofmutual combat andinitial aggressor that were used in this case — either the trial court committed reversible error by failing to instruct the jury sua sponte on the legal concept of impossibility of withdrawal, or else trial counsel provided ineffective assistance for failing to request such an instruction. (AOB 211-214.) For its part, respondent does not dispute the substantive points appellant has made. (Compare AOB 211-213 with RB 158.) Thatis, respondent does not deny that if the mutual-combat and initial-aggressor theories used in this case are valid theories, then they logically must make allowance for the use of self-defense when there is no opportunity to withdraw from the “mutual combat”or “initial aggression.” Ratherthan contesting appellant’s reasoning, respondent claimsthatthe reasoning is based upon a “faulty premise.” Whatis the faulty premise? As best as we understand, appellant is alleged to be wrong in contendingthat the prosecutor propounded a mutual-combattheory or an initial-aggressortheory that relied on events occurring before May 6, 1995, the day Tuan Pham was shot. According to respondent, the prosecutor’s argument, properly understood, was merely that “appellant was both the initial aggressor in the immediate conflict leading to the shooting and a mutual combatant in the immediate conflict resulting in the shooting.” (RB 158.) | Respondentis suggesting that the prosecutor offered some theory based solely on appellant’s conduct on May 6, 1995 (the date of the “immediate conflict”) to support a finding that appellant was a mutual combatant or an -124- initial aggressor, but respondentdoesnot explain whatthat theory was or what evidence might support it. As we have discussed, there is no evidence to support a finding beyond a reasonable doubt that appellant was aware of Tuan's Pham’s presence before seeing him approach onfoot orthat appellant agreed on May6, 1995, to do battle with him, noris there any evidence that appellant took actions on that date that made him aninitial aggressor. (See also AOB 141-145.) And it is simply a denial of the plain record for respondentto allege that the prosecutor did not rely on a theory that looked to events occurring prior to the date of the shooting of Tuan Pham — “gang war” theory — to defeat self-defense. That was not just a theory that the prosecutor relied on. It was the theory.” In short, respondent is wrong in contending that a “faulty premise” underlies appellant’s claim that the trial court had a sua sponte dutyto instruct on impossibility of withdrawal. The prosecutor did rely, and in fact had no choice butto rely, upon a gang-wartheory to support her mutual-combat and initial-aggressor theories of liability. The instructions on impossibility of withdrawal should have been given. Respondent also appears to contend that appellant’s claim is forfeited because defense counsel did not object to the prosecutor’s argumentorrequest a “curative admonition”at trial. (RB 158.) It should be quickly apparent, however,that neither contention is applicable to a claim thatthe trial court has a sua sponte duty to instruct. A duty to instruct sua sponte is, by definition, a duty that exists even in the absence of a request for a “curative admonition” or an objection to a prosecutor’s argument. 9 See, e.g., 26 RT 4972, 4977-4979, 5002. See also 2 RT 309 (prosecutor says “of course”she is prosecuting based on a gang wartheory). -125- And even if the forfeiture argument were correct, that would not resolve the current issue because, in that event, defense counsel would have rendered constitutionally ineffective assistance by failing to request an instruction on impossibility of withdrawal. (AOB 206, 214.) Respondent contendsthere was no deficient performance because“[a]s explained above, the prosecutor did not introduce new legal theories calling for additional instruction.” (RB 159.) Respondent appearsto be referencingits contention that the current claim is based upon a “faulty premise.” That contention has already been dealt with. Respondent also contendsthat there is no reasonable possibility of different verdicts if the jury had been instructed on withdrawal because the jury rejected appellant’s testimonial claim that he was not a Nip Family member and that he “did not know who was involved in the May 6, 1996, shootout” (RB 159), but those contentions completely fail to address the central point: how could appellant have withdrawn from the type of mutual combator initial aggression that was usedin this case as a basis for rejecting self-defense? Without addressing this issue, respondent’s claim of no prejudice lacks persuasiveness.”° °° Not to mention two additional problems with respondent’s argument. First, appellant never testified that he “did not know who was involved”in the shootout, only that he did not know whothe assailants were, and the jury’s verdict on the gang enhancement in Count 14 did not show the jury rejected this testimony, since under Detective Nye’s testimony,the jury could have found appellant’s shooting was done for the benefit of the Nip Family regardless of whether the person shot was a memberof the Cheap Boys. Second, even assuming arguendo the jury rejected appellant’s claim that he was not a member of the Nip Family, that rejection would have no bearing upon a defense of withdrawal unless, perhaps, this Court were to approve the theory that all gang members are always mutual combatants and/orinitial aggressors whenever they encounter their rivals during a gang war (assuming the term “gang war” can be defined in a constitutional (continued...) -126- E. The Verdicts on Counts 13 and 14 Must Be Reversed Because the Jury Was Not Instructed on Ignorance or Mistake of Fact Finally, appellant has argued thatthe trial court committed reversible error by failing to instruct thejury on ignorance or mistake offact on the basis that, given the gang-war theories and evidence the prosecutor relied on to defeat self-defense, the jury could have foundthat appellant did not know his assailants were Cheap Boys. (AOB 215-217.) Respondent does not deny that ignorance or mistake of fact would be a defense to the anti-self-defense theories presented to the jury in this case. In effect, respondent concedes that appellant’s basic legal contention is correct. (See RB 160-161.) In addition, respondent acknowledges,as it must, that a trial court has a sua sponte duty to instruct on such a defense whenever “the defendantis relying on the defense,or if there is substantial evidence supportive of such a defense and the defenseis not inconsistent with the defendant’s theory ofthe case.” (RB 160. See People v. Maury (2003) 30 Cal.4th 342, 424; People v. Russell (2006) 144 Cal.App.4th 1415, 1427.) Respondent further acknowledges, as again it must, that under “appellant’s own testimony .. . appellant did not recognizehis assailants on May6, 1995, and did not know they were Cheap Boys gang members.” (RB 160.) And respondent does not deny, and thus tacitly concedes, that ignoranceor mistake offact with respect to whetherhis assailants were Cheap Boys would “not [have been] inconsistent with the defendant’s theory of the case.” (See RB 160-161.) °°(.. continued) manner). -]27- These concessions and acknowledgments should lead directly to the conclusion that appellant’s claim has merit, but ofcourse they don’t. Instead, respondentasserts that “[t]he trial court had no sua sponte duty to give the instruction.” (RB 160.) Whydid the trial court have no sua sponte duty? It is impossible to tell. Nothing respondentsays after making this assertion even arguably supports it. Respondentpoints to appellant’s testimony that he was a passengerin the car and did not shoot Tuan Pham,but that testimony does not negate the facts (1) that appellant also testified that he did not recognize his assailants and did not know they were from the Cheap Boys, (2) that appellant’s testimony on this point constitutes substantial evidence, (3) that the defense, having elicited this testimony, was obviously relying on it, and (4) that a defense based upon lack ofknowledge wasnotinconsistent with the defense at trial, which (as respondent admits elsewhere, see RB 159) included “challenging the legitimacy of the prosecutor’s arguments that Tuan Phan’s [sic] killer did not act in self-defense.” Respondentalso asserts that an instruction on ignorance or mistake of fact “would only have benefitted appellant” if the jury concluded that appellant lied about his having been the back seat passenger and not involved in the shooting of Tuan Pham. (RB 161.) This may betrue, butit is not a reason for refusing an instruction. A jury is entitled to disbelieve part of a witness’ testimony andstill credit others, and the instructions have to address this possibility. (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1018 [jury has “right to accept part of the testimony of a witness, while rejecting the rest.”]; People v. Barton (1995) 12 Cal.4th 186, 196 [“Truth maylie neither with the defendant’s protestations of innocence nor with the prosecution’s assertion that the defendantis guilty of the offense charged, but at a point between these two extremes.”]; People v. Ceja (1994) 26 Cal.App.4th 78, 86 -128- [“The jury was entitled to accept portions of a witness’s testimony and to disbelieve other portions”]; People v. Daya (1994) 28 Cal.App.4th 697, 712-713 [“The jury should not be constrained by the fact that the prosecution and defense have chosento focus on certain theories”]; People v. Mayweather (1968)259 Cal.App.2d 752, 756 [self-defense instructions required although “imconsistent with defendant’s own testimony.”].) The only remaining question is whethertheerrorin failing to give the instruction on ignorance or mistake of fact requires reversal, and respondent offers no argument on the point. There is good reason for the omission. Under the Constitution, the test is “whether it appears beyond a reasonable doubt that the error complainedofdid not contribute to the verdict obtained.” (Neder v. United States, 527 U.S. at p. 15.) In the context of an omitted instruction, the test requires an appellate court to reverse unless it can “conclude beyond a reasonable doubt that the jury verdict would have been the same absentthe error.” (/d. at p. 19.) To makethis determination, the court “asks whether the record contains evidencethat could rationally lead to a contrary finding with respect to the omitted [instruction].” (/bid.) A reversal is called for it “where the defendant contested the omitted element and raised evidencesufficient to support a contrary finding.” (bid. Accord, People v. Mil, 135 Cal.Rptr.3d at p. 352 [“Our task, then, is to determine whetherthe record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.”], internal quotation marks omitted.) Respondent cannot and does not maintain that the error here can be deemedto be harmless underthis standard, or any other. -129- 4, REVERSAL OF COUNTS 13 AND 14 IS REQUIRED BECAUSE OF THE ERRONEOUS ADMISSION OF EVIDENCE REGARDING APPELLANT’S ROLE IN THE SHOOTING Attrial, the prosecution offered several items of evidence in order to establish that appellant was in fact the driver of the car from which Tuan Pham wasshot. Prominent among them wastestimony from Garden Grove Officer Vincent On, which was admitted to show that appellant was the person who, 17 days after Tuan’s death,fled from police and dumped a gun that had been used in the shooting. Officer On’s testimony was that the person whofled looked “similar” to “somebody named Lam Thanh Nguyen” as depicted in a photograph that On had seen 15 or 20 minutesearlier. (15 RT 2849.) However, as the AOB argued, On’s testimony was entirely inconsequential unless the photograph actually was of appellant. And that foundation was entirely missing because no evidence was producedthat the photograph was of appellant. (AOB 218-229.) Respondent purports to disagree, but it concedes appellant’s central point. It admits there was no evidence that “the photograph depicted appellant.” (RB 164 [twice].) However, if there was no evidence that the photograph resembled appellant, what was the foundation for On’s testimony? What madethe testimony relevant? Respondent’s answeris difficult to follow. Respondent contends that it was permissible for the trial court to allow Officer On to give his “limited”testimony because (1) “On was a competent witness who had personal knowledge of the correctness of the photographic representation he described” and (2) On “could testify from personal knowledgethat the photograph depicted the face ofa person named Lam Thanh Nguyen.” (RB 164.) But neither statementis correct in any sense that appellant can perceive. On had no “personal knowledge” whatsoever of the “correctness” of the photo he described, nor did he have any personal -130- knowledge that the photograph depicted “a person named Lam Thanh Nguyen,” let alone that it depicted the Lam Thanh Nguyen who was the defendant in the case or that it accurately depicted him. Respondent’s contention is a non-starter.”’ Respondent asserts that any error in admitting the testimony was harmless because “[p]owerful independent evidence established” that appellant was the person whofled from the car. (RB 168.) Most of the | Indeed, respondent admits on this same page that Officer On “did not assert that the photograph accurately depicted the man named Lam Thanh Nguyen.” (RB 164.) Is respondent arguing that while On was unable to say the photograph “accurately” depicted “the” person named Lam Thanh Nguyen, On nevertheless couldtestify that the photo depicted “a” person with that name without any need to show the “accuracy” of the depiction or a connection to appellant? If so — and appellant is not confident he is following respondent’s argument — then respondent seemsto be taking the position either that authentication is not required to rely on a photograph or that relevanceis not required. Either way, the argument would be contrary to law. In a footnote, the AOB pointed out that the line of cases allowing an inference of identity to be drawn from uncommon namesis irrelevant to his “authentication” challenge. (AOB 223 fn. 143.) Respondent does not disagree aboutthe irrelevance of these cases but claims appellant’s point should be forfeited because it was not raised below. (RB 164-165.) However, appellant had no opportunity or reason to make this point below becauseneither the prosecutornor the court relied on these casestojustify the admission of Officer On’s objected-to testimony. Respondentcites nothing that supports its apparent belief that appellant has to object at trial to the use of an irrelevant line of decisions that no one mentionedat the time. Respondentagainasserts that appellant’s federal constitutional claims should be forfeited because not raised below (RB 165), but that assertion fails for the reasons previously discussed. (See ARB § 1.1.B,p. 12, ante, and cases cited.) Nothing else in respondent’s discussion of the merits of appellant’s claim requires further discussion in this ARB. -131- “powerful” evidence that respondent points to relates to the claim that appellant lived at the Amarillo Street residence that all three of the car’s occupants were walking away from before they entered the car. But the evidenceis not “powerful” even as to appellantliving at the residence,andit is obviously less powerful as proof that he was the fleeing passenger. The evidence respondentpoints to as establishing that appellantlived at the Amarillo Street house was(1) Detective Nye’s testimony that Monica Tran told him that she believed appellant lived near Hoover and Trask, (2) evidencethat appellant’s prescription medicine bottle was found on top of a television in the Amarillo Street residence, (3) evidence that a brownjacket was found at the house, which was the same color jacket as witnesses had described the Duy Vu shooter as having worn, and (4) the fact that three firearms were foundin the bedroom,which respondent claimsis indicative of appellant’s occupancy because “appellant tended to show off firearms whereverhe wasstaying.” (RB 169.) However: (1) Monica Tran’s belief, per Detective Nye: Monica Tran, a convicted felon (she was convicted in Texas of aggravated robbery with a deadly weapon, 10 RT 2041), was speaking to detectives after having been arrested for a probation violation, the probation having been imposed because of a residential burglary conviction in juvenile court. (10 RT 2029.) She was told by the detectives that how muchtime she wouldreceive for the violation would depend upon her probation officer, and while Monica did not recall the detectives telling her that he would talk to the probation officer if she gave him information about appellant, she did recall that the detective asked her specifically about appellant. (10 RT 2033-2034, 2039.) Even so, she merely “believed” that appellant lived nearby. -132- (2) (3) (4) The medicine bottle: The bottle was found on May 23 on top ofthe television set in the living room ofthe apartment. (15 RT 2933, 16 RT 3168-3169.) Appellant had /ost it, which wasthe reason he wasgoing to Dr. Dinh whenhe wasarrested at Dinh’s office two days later. (21 RT 4052-4054.) Moreover, in the bedroomofthe apartment—the room mostlikely to have signs of who the resident is ——- there was a prescription bottle belonging to someoneother than appellant. (15 RT 2932-2933, 2936-2937, 2966, 16 RT 3168.) The brown jacket: This briefhas already addressed the subject of the brown jacket: how Jeanette Mandytestified that it was not the jacket worn by Duy Vu’s shooter, how it was much too large for appellant, and how respondent’s efforts to explain away Mandy’s testimony and the bad fit run contrary to common knowledge and experience. (See ARB Introduction, Subsection B, pp. 6 et seq., ante.) We perceive no need to repeat that here. Firearms found in the house: Thethree firearms wereall found in the bedroom,wherethe only indicium ofoccupancy pointed to someone other than appellant (to Huy Pham, whose name was on the prescription bottle found in that room). The weaponswere all fingerprinted, but appellant’s prints were not on them. (15 RT 2965.) Nor were the weapons connected to any ofthe crimes with which appellant was charged. And asfor respondent’s assertion that appellant “tended to show off firearms where he was staying” (RB 169), it is flawed because the record contains no evidencethat appellant had ever stayed at any of the places respondentidentifies (the home ofMonica -133- Tran’s sister, the motel that Shannon Choeun, Cindy Pin, and Me Kim visited, Huy Pham’s car). And in any event, if evidence that appellant “showed off firearms” outside ofhis home is “powerful evidence” that appellant was living in a place where different gunsare found, then— given the number of households in Orange County that had guns — appellant must have beenliving all over the county. These facts hardly amount to “powerful evidence”that appellant lived in the Amarillo Street house, and whatever limited probative value they might have is underminedbythefact that the house contained no bills that could be attributed to appellant, no identification cards, no mail, no membership cards, no photographs, no fingerprints, no address books, no writings of any sort, and no keys were found on appellantlater on. The remaining “powerful, independent evidence” that purportedly establishes that appellant wasthe fleeing passenger is Officer On’s testimony - that the passenger was a Vietnamese male of about appellant’s size and Detective Nye’s testimony that Cuong Le, oneofthe two other peoplein the car with the passenger, was a Nip Family member.” (RB 170.) Both ofthese items of evidence are consistent with appellant being the passenger, but neither is particularly probative of that conclusion. There are many male Vietnamese within or close to the size range that On gave. And not only were there many membersofthe Nip Family, but the absence of evidenceasto the gang membershipofthe other occupantofthe car reduces the probative value of the Cuong Le evidencestill further. ° Respondent also says that Cuong Le was “an acquaintance of appellant” (RB 170, citing 21 RT 4065), but neither the cited RT page, nor any other, supports this claim. -134- Neither individually nor cumulatively does the “powerful independent evidence”that appellant wasthe fleeting passenger comeclose to living up to that description. Respondentalso contends that “the trial record . . . shows appellant would have been convicted of counts thirteen and fourteen even had On’s testimony about the photograph been excluded” because “[s]ubstantial evidence showed appellant was the driver who shot Tuan Pham....” (RB oe167.) We have already pointed out that respondent’s “substantial evidence” approach to the question of reversible error is fundamentally wrong. (See ARB §§ L.1.C.1, pp. 14 et seq., & II.3.A, pp. 118 et seq., ante.) That error undermines respondent’s harmlessnesscontention herebyitself, but the points respondentoffers to support the contention are also themselves problematic. Initially, respondent arguesthat thejury’s ten guilty verdicts “show that jurors disbelievedall the major points of appellant’s testimony and therefore did not believe appellant’s claim that he was an unarmed back seat passenger on May 6, 1996....” (RB 167.) This argumenthas several defects. First, it entirely ignores the not-guilty verdicts as to the Duy Vu shooting (Counts 11 and 12). Second, insofar as it relies on the jury’s guilty verdicts as to counts other than those relating to the death of Tuan Pham, the argumentis inconsistent with instructions telling the jury that “each count charges a distinct crime” andthat thejury’s duty wasto “decide each count separately.” (27 RT 5295.) Thus,the fact that the jury disbelieved appellant’s testimony as to most of the other shootings with which he was charged does not shed light on the question of prejudice as to the Tuan Pham shooting. Andthird, while thejury obviously did cometo disbelieve appellant’s testimonyasto his role in the Tuan Pham shooting,the issue for purposesofthe current prejudice inquiry is, in effect, whether that disbelief could have been a result of the -135- error in admitting Officer On’s testimony. Thatis what our entire discussion ofprejudice was aimedat showing, and respondent’s attempt to invoke other verdicts to support its claim of harmlessness as to the present error is an irrelevant sidetrack. Respondent points out that eyewitness Robert Murray described the car from which the driver shot Tuan Pham wasa white Honda and that Monica Tran recalled that appellant drove a white Honda. (RB 167.) This evidence has some tendency to indicate that appellant was the driver, but it is hardly such strong evidenceas to justify the conclusionthat the error in admitting Officer On’s testimony was harmless. The fact that appellant had driven a white Honda on some occasions is hardly inconsistent with him being a passengerin a white Hondaon others. Especially is this true, given that no evidence was producedthat appellant was the actual ownerof such a car or that he had passengers in the car with him when Monica saw him. Next, respondentclaims that eyewitness Murray “selected appellant’s photo from a photolineup as the photo looking mostlike the shooter.” (RB 167.) As we have already pointed out, however, respondent omits that when Murrayinitially viewed the photo lineup, he did not select anyone andthatit was only after “the talking back and forth [with police], and are you sure nobody lookslike this or that” that he indicated that appellant was “possible.” (14 RT 2723.) Respondent omits, too, that after viewing the six pack, Murray wrote “I cannot make any identification” on the identification form. (14 RT 2723, Exh. V.) And respondent neglects to mention that Murray failed to select appellantat a live lineup. (14 RT 2750, 2723.) . Finally, respondent relies upon appellant’s birdshotinjuries as proof that appellant was the driver and not a rear passenger. (RB 168.) According to respondent, “[b]irdshotstruck theleft side of appellant’s back, rather than striking him all the way across his back, because that wasthe sideleft -136- unprotected by the driver’s seat as appellant turned aroundto shoot backat the second gunman.” (RB 168.) Appellant has discussed the birdshot evidence at some length in the AOB (see AOB 224-226), and respondent’s argument glosses overthat discussion. For one thing, while respondenttalks about how the birdshot hit “the left side of appellant’s back,” it disregards that the birdshot hit appellant’s left mid-back and lower back. (See Exh. 140.) Respondent does not even attempt to show how a person could be in the driver’s seat and yet be hit in the mid-back and lower backby birdshotfired from directly behind the vehicle. How would theseareasbe “left unprotected by the driver’s seat as [the driver] turned around”? In addition, the “driver” scenario cannot be reconciled with the fact that - appellant sustained injuries to the inside of thefingers ofhis /eft hand. If, as respondentis contending, appellant was shooting out the driver’s window either toward Tuan Pham or toward the shotgun wielder, how would he behit on the inside of the fingers of his left hand? The AOB pointed out this anomaly (AOB 225-226), but respondent declines to addressit. The fact is that the shotgun pellet evidence is more consistent with appellant being the passenger than with him being the driver. At the very least, that evidence adds nothingofsignificance to respondent’s claim that the error in admitting Officer On’s testimony was harmless. Even considering all of the factors respondent points to cumulatively (and disregarding respondent’s improper approachto the prejudice question), this Court cannot reasonably concludethat, beyond any reasonable doubt, the error did not contribute to the verdicts. (Chapman v. California, 386 U.S.at p. 24.) It is also impossible to deny there is at least ‘““a reasonable chance, more than an abstract possibility” that a different outcome would have occurred in the absence ofthe errors. (See College Hospital, Inc. v. Superior Court, 6 Cal.4th at p. 715, original emphases.) The error requires reversal. -137- THE ATTEMPTED MURDER COUNTS (Counts2-3, 4-5, 9-10) TIL. 2 (relating to the July 21, 1994 shooting of Tony Nguyen) In Counts 2 and 3, appellant was convicted of attempted murder and gang participation in connection with the shooting of Tony Nguyen on July 21, 1994 (six monthsbeforethe killing of Sang Nguyen and ten-plus months before the shooting ofTuan Pham). It was agreed by both partiesattrial that Tony Nguyen had actually been shot by one Nghia Phan, whofired from the front passenger seat of a car driven by a female named My Tran. Appellant was convicted as an aider and abettor to the shooting. The only evidence placing appellant at the scene ofthe shooting wasthe testimony ofKevin Lac, a Cheap Boy,who,despite having known appellant since before the shooting and despite having been shown photographsofappellant on several occasions without making an identification, decided 13 months later that appellant had been a rear passengerin the car. 1. THERE JIS INSUFFICIENT EVIDENCE TO _ SUPPORT THE JURY’S VERDICT THAT APPELLANT AIDED AND ABETTED THE CRIMES CHARGEDIN COUNTS2 & 3 Appellant has argued in the AOBthat, even assuming that appellant wasindeed a rear passenger in the car driven by MyTran, the evidence was insufficient to establish that he was an aider and abettor. The evidence fell short as to three separate elements of aiding-and-abetting liability: (1) appellant’s knowledge ofNghia Phan’s unlawful purpose, (2) appellant’s intent orpurpose to commit, encourage,or facilitate Nghia’s crime, and (3) an act or advice by appellantto aid, promote, encourage,orinstigate the crime. -138- The AOB pointed out that the reasoning used by the prosecutor below to justify convictions on these counts — what she called “aiding and abetting backup” (27 RT 5194)—wasactually her reliance upon twologicalfallacies: the fallacy of the sweeping generalization and the fallacy of division. Moreover, her reasoning cannot be squared with Supreme Court law or the prohibition against guilt by association. (See AOB 230-235, citing, inter alia, United States v. Brown, supra, 381 U.S. at pp. 455-456.) Andin further support of our challenge to the convictions in Counts 2 and 3, the AOB pointed to People v. Williams (1997) 16 Cal.4th 153, 225- 226, in which this Court held that no instruction was required as to the possible accomplicestatus ofa prosecution witness because the evidence was insufficient as to the “intent” element of aider-and-abettorliability. Since such an instruction is required merely when “a triable issue offact” exists as to whether the witness was an accomplice,” the Williams holding provides strong corroborationthat the evidence wasinsufficient in appellant’s case to establish his guilt beyond all reasonable doubt. (AOB 235-236.)™* 8 People v. Snyder (2003) 112 Cal.App.4th 1200, 1219. ” People v. Sully (1991) 53 Cal.3d 1195 similarly supports appellant. There, the defendant was charged was six serial murders. A woman, Tina Livingston, picked up the first victim (who owed Livingston money), brought her to the defendant’s warehouse,and helped the defendant kill her there and clean up afterwards. (/d. at p. 1211.) Later, after the defendant told her he wantedto find a girl and kill her before anyone else “had”her, Livingston found another victim for him, and this victim wasalso killed at the warehouse. (/d. at p. 1212.) Subsequently, Livingston helped the defendant dispose ofthe bodyofthe fifth victim (another womankilled at the warehouse) and attempted to destroy incriminating evidence. (Jd. at p. 1213-1214.) And whenthe defendant requested Livingstonto drive the sixth victim to his warehouse, Livingston did so and then proceeded to wait at a nearby bar, returning to the warehouse and seeing the victim being stabbed. (continued...) -139- Forits part, respondent contendsthe evidenceis sufficient. Nowhere, however, does respondent address the fallacies of logic in the “aiding and abetting backup”theory. Nowhere does respondent acknowledge, let alone attempt to explain away, this Court’s holding in Williams or the Supreme Court’s observation in United States v. Brown, supra, 381 U.S. at pages 455-456. And nowhere does respondentpoint to any specific evidence showing that appellant had the requisite knowledge ofNghia Phan’s purpose,or that he shared Nghia’s criminal required intent, or that he engagedin an actionthat aided Nghia’s commission ofthe offense, let alone that all three showings were made. Instead, respondent presents a five-page summary of “the 9955substantial evidence supporting counts two and three”? and thenrefers back to that five-page summary, in undifferentiated masse, as support for various »4(...continued) The trial court did not give accomplice instructions as to Livingston’s involvementin the sixth murder, and this Court found thetrial court acted properly. Despite the fact that Livingston had participated in prior murders at the warehouse, and despite the fact that she drove thesixth victim to the warehouseherselfand waited nearby, the evidence did not support even “an inference of accompliceliability on Livingston’s part.” (Ud. at p. 1228.) “It is not sufficient that [the alleged aider and abettor] merely gives assistance with knowledgeofthe perpetrator's criminal purpose,” the Court noted. (/d. at p. 1227.) The inferences that Livingston knew that Victim 6 wasto be robbed and that her death at defendant’s hands wasclearly foreseeable were “at best highly speculative.” (/bid.) The evidence as to Livingston’s possible accomplice status dwarfs that as to appellant’s, and since the evidence wasinsufficient even to raise a triable issue as to Livingston’s involvement, the evidencein the present case mustbeinsufficient to prove appellant’s guilt beyond a reasonable doubt. °5 RB 171-175, quoting RB 171. -140- conclusory statements. Thus, for example, respondent says thatthe “foregoing substantial evidence” showsthat “[a]ppellant helped spotas potential targets Cheap Boys Vinh Kevin Lac and Tinh Dam, and/or Cheap Boyassociates Tony Nguyen, Chynna Vu and Truong Nguyen.” (RB 175.) But what evidence supports the assertion that appellantin particular “helped”to spot these people “as potential targets”? Respondent cites nothing, undoubtedly because there is nothingto cite. Similarly, respondent says that “[a]ppellant and his Nip Family confederates then premeditated and planned the shooting by advising driver My Tran to follow Nguyen’s car and pull up next to Nguyen’s at the intersection.” (RB 175.) But what is the evidence that appellant “premeditated and planned the shooting” or “advised the driver”? Again, respondentcites nothing, because nothing ofthe sort exists. And in like manner, respondentasserts that “[a]ppellant remained in the back seat ready to assist the shooter should the shooter be disabled in a potential gun battle which never occurred.” (RB 176.) But “remain[ing] in the back seat” only establishes“‘mere presenceat the scene ofa crimeorfailure to prevent its commission,” abetting. (People v. Richardson (2008) 43 Cal.4th 959, 1024, internal which is insufficient to establish aiding and quotation marks omitted.) So, what supports the statement that, while “remaining in the back seat,” appellant himselfactually was “ready toassist the shooter should the shooter be disabled”? Respondent doesnottell us. The only conceivable support might be the generalized “aiding and abetting backup”reasoning that the prosecutor used below. But as the AOB pointed out (and respondent ignores), that reasoning is fallacious as a matter of standard logic. (AOB 233-234.) It also has been rejected by the courts (a point that respondentalso declines to address). (AOB 234.) Andit essentially relies on guilt by association (to which respondent’s response,in full, is that -141- “t}he trial record belies the contention”). (Compare AOB 234-235 with RB 177.) The fact is that this record shows that the person who Kevin Lac eventually claimed wasappellant merely sat in the back seat ofthe car and,at one point, may have lookedin the direction of Tony Nguyen’s car. Nothing in the RB provides substantial evidencethat appellant knew ofNghia Phan’s purpose to shoot, or that appellant took an action that aided or encouraged Nghiato fire, or that he shared Nghia’s intent if he did take such an action, and even less does the record support all three findings. Onthis record, the convictions in Counts 2 and 3 cannotstand.°° *6 In the courseof its arguments, respondentstates that “[p]eople whoassociated with the Cheap Boys and Nip Family knew howhottheir war was in February, March, April and May of 1995.” (RB 175.) Monica Tran did so testify (see 10 RT 2022), but respondent doesnot explain the relevance of this testimony to the shooting of Tony Nguyen, which occurred in June 1994, 8 to 11 monthsprior to the period addressed by Monica’s testimony. In a similar vein, respondent twice talks about “the state of war existing between the Nip Family and Cheap Boysin 1994 and 1995.” (RB 173, 176, citing 16 RT 3210-3212 [testimonyofDet. Nye].) But the testimony to which respondentrefers (16 RT 3210-3212) does not support the statement. Allthat Nye talked about was that as of “March of 1995” the “rivalry between Nip Family and Cheap Boys[had] reached deadly status.” (16 RT 3210.) Nye did not testify about “the state of war” at the time of the shooting of Tony Nguyen, nine months before “March of 1995.” -142- 2. THE TRIAL COURT UNCONSTITUTIONALLY PREVENTED THE DEFENSE FROM FULLY IMPEACHING KEVIN LAC, THE PROSECUTION’S KEY WITNESS AS TO COUNTS2 AND 3 The only evidence purporting to place appellantin the car from which Nghia Phan shot Tony Nguyen camefrom the testimony ofCheap Boy Kevin Lac. The process by which Kevin cameto point to appellant as a rear passengerin the car certainly cast some suspicion on Kevin’s truthfulness and accuracy, but nothing showed him definitively to be a liar. There was, however, such definitive evidence. Several witnesses could credibly have shown Kevin to have lied about whether guns were possessed by Kevin himselfand/or by a fellow passenger in Tony Nguyen’s car, and Kevin’s own interview with police would have impeachedhis claim that the defense was selective in its portrayal of one of Kevin’s police interviews. Nevertheless, the trial court precluded or drastically limited the defense in its effort to presentthese lines ofimpeachment. In the AOB,appellant has arguedthat the court’s rulings constituted reversible error. (AOB 238-250.) Respondent differs. (RB 178-196.) A. Impeachment ofKevin Lac’s Claim That He Did Not Have a Gun and Did Not Know If Truong “Trippy” Nguyen Had One At trial, Kevin Lactestified that, on the occasion when Tony Nguyen was shot, he (Kevin) did not have a gun and did not know whether fellow passenger Truong “Trippy” Nguyen had one. (9 RT 1684.) The defense sought to impeach Kevin’s testimony,butthe trial court excluded mostofthe impeaching testimony (from Chynna Vu, Linda Vu, Alisa Trujillo, and Laura Hughey) and allowed the defenseto call only the two least credible witnesses on the subject (Gene Melancon,Floriberto Villanueva). The court ruled that -143- the excluded evidence was cumulative and inconsistent with the defense position that appellant wasnotin the shooter’s car. Appellant has argued that these were both improper reasons for excluding the evidence. (AOB 238- 247.) For its part, respondent does not defend the trial court’s rulings on either ofthe bases actually used by the court(“cumulative”and “inconsistent defense”). Nor does respondent deny the credibility problemsrelated to the two witnesses who wereallowedto testify. (RB 188 [“Whether or not the prosecutor contested the testimony of Melancon and Villanueva,” the excluded testimony was inadmissible].) Respondentinstead seeks to justify the trial court’s ruling by resortingto rationalesthat the trial court did not use below. AL Chynna Vu Chynna Vuwasin an excellent position to confirm that Kevin Lac had a gun and/or that Trippy Nguyen drew a gun (which Kevin would have seen) because she wasa passengerin the car with them. However,thetrial court not only precluded the defense from asking Chynna aboutsuch matters before she arrived on the stand, but even after shetestified that Lac ran from the scene, it would not allow the defense to ask whether Kevin wascarrying anything in his hands ashefled. (25 RT 4716, 4719-4720.)°’ Respondentcontendsthese rulings were correct because the defense was seeking to “exceed{] the scope of Chynna Vu’s direct-examination testimony,” which was“limited to describing the identity ofthe passengersin Tinh Dam’s car when Tony Nguyen was shot” and the trial court “could . 7 In the AOB,appellant stated that Chynna hadtestified “for the prosecution” that Kevin Lac fled from the scene, but actually this testimony was on cross-examination. (25 RT 4716.) -144- properly sustain the prosecutor’s objection” on this basis. (RB 186, 187.) This contention is unavailing for several reasons. First: respondent is wrong that the defense was seeking to exceed the scope of Chynna’s direct examination. Respondentis correct that her direct examination was “limited to describing the identity ofthe passengers in Tinh Dam’s car when Tony Nguyen wasshot,” but one problem with her direct- examination testimony was that Kevin Lac and Trippy Nguyen, whom she claimed were in the car, were not around when the police arrived a few moments later. If her direct examination testimony was correct, she had to accountfor their absence. Thus, it was well withing the range ofpropercross- examination to question her about why Kevin and Trippy were not around, including the circumstances intimately connected to her explanation. Moreover, after she testified that Kevin and Trippy fled, Chynna sought to put a benign spin on their flight, essentially claiming they ran off because“they’d have probation violations” ifthey remained, and “they didn’t want to violate probation.” (25 RT 4716.) Appellant was fully entitled to show that the actual reason they fled was because they were in possession of a weapon and not because, as a jury would have understood Chynnato be saying, they happenedto be innocently at the scene of a shooting. Second: In any event, the prosecutor did not object that the Chynna’s testimony could or should be excluded on the basis that it exceeded the prosecution’s direct examination. Thus, respondent merely arguesthat the trial court “could” have excluded the defense evidence onthis basis. But had this reason been offered below, the defense could easily have requested to reopenits case to elicit the testimony. Indeed, this is undoubtedly whythe prosecutor did not object on this basis. Since respondent’s “beyond the scope” contention would deprive appellant ofthe opportunity he would have -145- hadat trial, it cannot be invoked now on appeal. (See ARB § 1.2.A.2, pp. 40 et seq., ante.) Next, respondentasserts that Chynna “wasnot in a good position to know whetheror not Kevin Lac lied when he denied seeing a weapon in Tin Dam’s car because Kevin Lac neverclaimedin his prosecution testimonythat there was no weaponin Tinh Dam’scar.” (RB 188) Respondenthas created a straw man. Appellant’s AOB argument did not say or imply that Kevin “claimed there was no weapon in Tinh Dam’s car.” Rather, it accurately characterized Kevin’s testimony as being that he did not have a weapon himself and did not know if Trippy had one (which necessarily meant that he did not see Trippy with a gun). As a fellow passengerin the car, Chynna was in an extremely good position from whichto testify that Kevin displayed a weapon, and she wasin an equally good position from whichtotestify that Trippy did, which, in turn, would reasonably haveled to the inferencethat Kevin was aware of Trippy’s gun. Finally, respondentclaimsthat “[i]fanyone carried a gun from thecar, it would in any event have been Truong Nguyenrather than Lac.” (RB 188.) Respondentbasesthis contention primarily upon Floriberto Villanueva’s trial testimony that the man whom he saw with a gun had beenin the backseat, whereas Kevin had beenin the front seat. (19 RT 3708.) But Villanuevadid not see any front seat passengerat all, so his testimony asto the original positioning ofthe armed manhesaw,eveniffully credited, does not establish that Kevin wasnot himselfholding a weaponas he ran away. Andsince other witnesses saw a male doing something with a gun that Villanueva did not see — putting a gun into his waistband (see 18 RT 3419-3420 [Hughey], 19 RT 3664 [Melancon])—the most reasonable inferenceis that there were two males who displayed guns, one of whom had been the front passengerthat Villanueva did not see (i.e., Kevin Lac). And, in any event, a jury could -146- reasonably have concluded that the fact that Trippy openly displayed a gun meantthat it was likely that Kevin saw this and thus was lying whenhesaid he did not know whether Trippy had a gun. 2. Linda Vu Linda Vu was a passenger in a car traveling in tandem with Tony Nguyen’s car, and thus she, too, was in a positionto testify to seeing Kevin Lac and Trippy with guns, especially since one or both them apparently got into her car afterwards. (See AOB 244-245.) Respondent contendsthat the trial court did not preclude defense counsel from questioning Linda aboutthis subject and that, instead, defense counsel “volunteered” not to question her. (RB 190, citing 19 RT 3651.) The contention is meritless. The trial court had 8 In a footnote, the AOB pointed out that respondent could not complainthat the record fails to affirmatively demonstrate that Chynna would havetestified to seeing Kevin and Trippy having a gun because (1) no such showing is required on cross-examination and (2) the prosecutor below did not deny the defense’s claim as to what Chynna wouldtestify to. (AOB 244 fn. 152, citing Evid. Code, § 354, subd. (c) and Tossman v. Newman (1951) 37 Cal.2d 522, 525-526 [re point (1)] and People v. Linder (1971) 5 Cal.3d 342, 348 fn. 2 [re point (2)].) Respondent addresses this footnote at considerable length (RB 189-191), but only two arguably relevant matters are offered. First, respondent asserts that Evidence Code section 354 does not apply when the cross-examination in question is beyond the scope ofdirect examination. (RB 190.) Respondent cites nothing that supports this claim. Moreover, for the reasons already discussed, the cross-examination was not beyond the scope of direct examination. Second, respondent asserts that Linder presented a “sui generis scenario.” (RB 190.) Tthis assertion is pure ipse dixit. Ofcourse, the precisefacts ofLinder are different from the present case, but why is Linder’s reasoning inapplicable? Respondent does not explain, and no explanation is apparent to appellant. Indeed, the conclusion that the prosecutor at appellant’s trial was tacitly acknowledging there was a factual basis for the defense questioning is corroborated by the fact that the prosecutor repeatedly objected that such questioning was “improper character evidence.” (18 RT 3404, 3405, 3406, 3427.) The only way the questioning could have been depicted as “character” evidenceis if it showed Kevin to be in possession of a gun. -147- already made very clear that it would not allow the defense to pursue this subject with any witness other than Melancon and Villanueva. (See 18 RT 3426, 3514, 19 RT 3641.) And if there were any doubt about the point, it would be resolved by the fact that the trial court did not disagree when counselsaid, “I want to [question Linda Vu about gunsat the scene], but in lieu [sic] of the court’s rulings, I’m not.” (See 19 RT 3651.) Respondentalso asserts that “Linda Vu would not in any event have testified that Kevin Lac or Truong Nguyen carried a gun” (RB 190), but it offers no coherent support for this statement. Ifrespondent were correct, why would the prosecutor say she “would object to” Linda being asked? (19 RT 3651.) Why would she repeatedly say such questioning wasjust “improper character evidence”?(18 RT 3404, 3405, 3406, 3427.) 3. Alisa Trujillo and Laura Hughey The remaining evidencethat the trial court precluded would have come from Alisa Trujillo and Laura Hughey, the two women workingat the nearby urology center. (See AOB 239-240, 245.) Respondent contends that the testimony of these eyewitnesses was inadmissible because “the probative value ... was substantially outweighedby its substantial danger ofmisleading and confusing the jurors by confusing the issues in the case.” (RB 186.) The argumentlack merit. The probative value of the evidence wasthat it would have seriously impeachedthe credibility ofthe prosecution’s essential witness, ° Parenthetically, we note the obvious: the evidence the defense sought to present was not proffered for the purpose of showing “character” but to impeach Kevin Lac. It is axiomatic that evidence that is admissible for one purposeis not rendered inadmissible because it might be inadmissible for another. Further, given the prosecution gang expert’s testimony concerning the general activities of Cheap Boy (and Nip Family) gang members, any charactertraits inferable from evidence showing Kevin Lac and/or Truong Nguyen in possession of a gun could not have had any prejudicial impact. -148- Kevin Lac. It would have directly shown Kevin to be a liar and would have doneso in a far more credible way than either Villanueva or Melancon did. Respondentclaimsthat the evidence would not have impeached Kevin, but respondent’s reasoning does not hold up. According to respondent, the testimony of Trujillo and Hughey “would not have impeached Lac because Lac never claimed in his prosecution testimony that there were no guns in Tinh Dam’s car and neverstated in his prosecution testimony that no one in Tinh Dam’s car had a gun.” (RB 186.) Respondentis invoking its straw man again. Appellant has never suggested that Kevin Lac “claimed there were no guns” in the car or that “no one in the car had a gun.” Rather, as we have pointed out, Kevin’s testimonywasthat he did not have a weapon himselfand did not know if Trippy had one, which necessarily meantthat he did not see Trippy with a gun. The testimony ofTrujillo and Hugheywasthatat least one person from the car was displaying a weaponas hefled. If the person was Kevin, then Kevin wasa liar. If the person was Trippy, then the jury could reasonably infer that Kevin saw Trippy with a gun at some point, either outsidethe car or inside it, since Hughey’s evidence would have beenthat the man was“putting a large pistol inside the front ofhis pants” as he ran (18 RT 3419), indicating that he had displayed the gunearlier. Not only is respondent wrong about the probative value of the testimony of Trujillo and Hughey, but respondent does not complain the evidence was prejudicial, nor does it explain how the evidence might have misled or confused the jury. In short, respondent can find nothing to put on the opposite side of the scale to outweigh the evidence’s probative value. Respondent’s claim that the evidence was properly excluded under Evidence Code section 352 has no merit. -149- 4, Alleged Forfeiture Respondent again tenders its claim that appellant’s federal constitutional claims should be forfeited because appellant “fail[ed] to make them in the trial court.” (RB 191.) However, as we have pointed out previously (see ARB §§ 1.1.B, p. 12, & 1.2.4.4,p. 49, ante), a constitutional claim is not forfeited on appeal when,as here, “the new arguments do not invokefacts or legal standards different from thosethetrial court was asked to apply, but merely assert that the trial court’s act or omission,in addition to being wrong for reasons actually presented to that court, had the legal consequenceofviolating the Constitution.” (People v. Gutierrez, 45 Cal.4th at p. 809.) | 5. Prejudice Finally, respondent makes a limited prejudice argument. It does not dispute that, if federal constitutional error occurred, a reversal is called for. Rather, it argues merely that ifthere was “state court error,”then the error was “harmless, non-reversible error becauseit is not reasonably probable different verdicts would have been reached under counts two and three absent the error.” (RB 192.) Respondent’s claim is that the error was harmless under Watson (1) because “Lac never claimed there were no guns in Tinh Dam’s car” and (2) because the excluded evidence “would not [sic] have addedlittle if any material impeachment to the impeachment of Lac’s testimony.” (RB 192- 193.) The formeris simply a repeat of respondent’s mischaracterization of appellant’s argument, onethat we havealready dealt with twicein this section of the ARB. Thelatter is conclusory andfails to confront any of appellant’s arguments about whythe evidence was important and not cumulative. (See AOB 242-246.) Respondent has declined to address or contest these arguments directly, and to the extentit is possible to view respondent’s current -150- claim as addressing them indirectly, the responses are purely conclusory and assertional. There is nothing to which appellant can meaningfully reply here exceptto refer the Court to the discussion at pages 242-246 of the AOB. B. Impeachment ofKevin Lac’s Claim That the Defense Was Being Selective in Its Questioning about His Police Interview of May 25, 1995 Whenthe defense sought to cross-examine Kevin Lac abouthis police interview ofMay 25, 1995, in which Kevin had been shown photographs of appellant but failed to say that appellant was in the shooter’s car, Kevin claimed that the defense was being selective in how it was portraying the interview. “You’re just hitting the ones that you wantto try to get me on,” Kevin testified. “There’s a lot of stuff in there that would help out the [prosecution].” (9 RT 1742.) The defense immediately sought to show that Kevin’s statements were untrue by having him review the interview, but the trial court sua sponte decided to preclude that line of questioning. In the AOB,appellant has argued thetrial court’s actions constituted error. (AOB 247-249.) Respondentasserts that “Lac’s gratuitous remark did not suggest how he in any way incriminated appellant during the May 25, 1995, police interview” (RB 196), but this assertion is either beside the point or wrong. Kevin wasclaimingthat the defense wasbeing selective andthat there was “a lot of stuff’ in the interview that would “help out” the prosecution, and this claim very clearly insinuated that Kevin had in some way implicated appellant in the interview. The defense wasentitled to show that this insinuation was wrong. (See, e.g., Davis v. Alaska (1974) 415 U.S. 308, 314.) Respondent further asserts that the defense questioning was “argumentative insofar as it sought to involve the witness in an argument without appreciably furthering the resolution of any material issue in the -151- case.” (RB 196.) But the questioning was not argumentative atall. Kevin had asserted that there was “lots of stuff’ in the interview that would have been helpful to the prosecution on the question of appellant being in the shooter’s car. Either Kevin wascorrect, or he was not, but without knowing what Kevin might have beenreferring to, the jury could not determine what the actual facts were or where the truth lay. Calling such questioning “improperly argumentative” is akin to arguing that evidence is “unduly prejudicial” simply because it harms one side’s case. But of course, ““nrejudicial’ does not mean the evidence is damaging to a party’s case. Instead, it means ‘evoking an emotional responsethathasvery little to do with the issue on which the evidence is offered.’” (Piscitelli v. Salesian Soc. (2008) 166 Cal.App.4th 1, 11, quoting Rufo v. Simpson (2001) 86 Cal.App.4th 573, 597, other citations omitted.)” Cc. The Erroneous Exclusion Of Evidence Compels The Reversal Of Counts 2 And 3 Appellant has argued thatthe errors just discussed were prejudicialas to Counts 2 and 3 under both the Chapman and Watson standards. The case against appellant was extremely close. Appellant wastied to the offenses only by Kevin Lac’s testimony, and Kevin not only was a memberofrival gang, °° Respondentrepeatsits argumentthat appellant’s federal claims are forfeited because not madein the trial court. (RB 196.) This contention is wrong for the reasonspreviously discussed. (See, e.g., ARB § I.1.B, p. 12; II.1.J, p. 112, ante.) Respondent also contends that any error in precluding the defense questioning was harmless. Respondent’s contention consists entirely ofthe conclusory statements that“thetrial record does not support”a finding ofprejudiceandthat “it is not reasonably probable that appellant would have enjoyed a more favorable outcomeifpermitted to inquire further.” (RB 196.) These are not argumentsbutassertions to which no reasonedreplyis possible. -152- but he first implicated appellant some 13 monthsafter the shooting despite having known appellant before the shooting and despite the police having shown Kevin two photographs of appellant during the 13-month period. Kevin’s credibility was thus key to a conviction, and while there were other reasonsto doubt his credibility, the excluded evidence— showingthat he was untruthful about having a gun, about seeing Truong Nguyen with a gun, and about having said something helpful to the prosecution at the May 25" interview— would have exposed himasaliar in a direct way that noother evidence did. The cumulative effect ofthese errors warrants reversal even if neither error would do so individually. (See AOB 249-250.) Asnoted in the preceding subsections, respondent deniesthat reversal is required as theresult of either error, but respondent does not consider the cumulative effect of the errors. Again, there is nothing for an ARB to reply to. -153- 3. REVERSAL OF COUNTS2 AND 3 IS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED ERRORS IN EXCLUDING EVIDENCE OF THE CHEAP BOYS’ PLAN, MOTIVE, AND OPPORTUNITY TO FRAME APPELLANT The AOBhasarguedthatthe trial court’s error in excluding defense- favorable evidenceofthe Cheap Boys’plan, motive, and opportunity to frame appellant for Sang Nguyen’s death also requires reversal of Counts 2 and 3. (See AOB IIL3, p. 251. See also AOB § 1.2, pp. 96-111; ARB § I.2, pp. 36 et seq., ante.) The RB’s response,in its entirety, is that “for reasons previously set fourth in respondent’s argumentIII . ., ante, those rulings were not erroneous and did not in any event affect the verdicts, including the verdicts under counts two andthree.” (RB 197.) This conclusory response doesnot deny the closeness of the case against appellant as to these counts, and it fails to addressthe fact that Kevin Lac, whose testimony wasthe sine qua nonofthe prosecution’s casehere, was one ofthe very Cheap Boysarrestedat the gang’s crash pad. Respondent’s silence on these key matters should be fatalto its position. -154- 4, REVERSAL OF COUNTS2 AND 3 IS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED ERRORS RELATED TO THE ADMISSION OF THE PREJUDICIAL HEARSAY EVIDENCE RELAYED BY TRIEU BINH NGUYEN Appellant has argued in the AOB that the trial court’s errors in allowing the prosecution to elicit improper testimony from Trieu Binh (“Temper”) Nguyenandin notgiving a limiting instruction had a prejudicial effect on Claims 2 and 3, the shooting ofTony Nguyen. (See AOB III.4, p. 252. See also AOB § I.3.B, pp. 115-118, ARB § 1.3.B,pp. 65 et seq., ante.) The RB’s response is identical to its response to the preceding argument. In its entirety, the response is that “for reasons previously set fourth in... respondent’s argument V,ante, those rulings were not erroneous and did not in any event affect the verdicts, including the verdicts under counts two and three.”” (RB 197.) Again, respondent declines to address the _ closeness of the case against appellant as to these counts, thus providing nothing to which appellant can meaningfully reply. -155- 5. REVERSAL OF COUNTS2 AND 3 IS REQUIRED BECAUSE OF MULTIPLE CONSTITUTIONAL AND STATE LAW ERRORS COMMITTED IN CONNECTION WITH THE REBUTTAL TESTIMONY OF PROBATION OFFICER STEVEN SENTMAN After the defense presented evidenceindicating that appellant was out of state when Tony Nguyen was shot, the prosecution sought to call appellant’s former probation officer, Steven Sentman,as a rebuttal witness, and a cascade of errors ensued. As the AOB pointed out, the trial court allowed Sentmantotestify despite the fact that Sentman wasin violation of a court order excluding witnesses and despite the fact that Sentman basedhis testimony on documents that had been withheld from the defense andthat contradicted representations Sentman had made to the court on several occasions beforehand. Then,the trial court refused to instruct the jury with regard to the belated disclosure of the new documents, and it prohibited the defense from calling a witness to impeach Sentman’s new version ofthe facts. (AOB 253-268.) Respondentdenies that any ofthis was improper (RB 197- 223), but its contentions lack merit. A. Violation of the Order Excluding Witnesses Thetrial court allowed Mr. Sentmanto testify despite the fact that he had violated a court order excluding witnesses by being present when appellant had testified. Since Sentman was the prosecution’s witness, the prosecutor hada duty to advise him ofthe witness-exclusion order (Peoplev. Valdez (1986) 177 Cal.App.3d 680, 691-692), but she clearly failed to do so. It is settled that any party who “chooses to keep a potential witness present presumably does so knowing that except on good cause the witness will no longer be available for testimonial purposes.” (Id. at p. 692.) “Later, if the party seeks to call the witness who remained in the courtroom, the prior -156- knowledgeofthe court order and apparentelection to keep the witness present will be deemed ‘fault’ as in ‘you were responsible for keeping the witness present.’” (lbid.) Respondentargues, first, that “[a]ppellant has not shown there was a trial court order excluded witnesses[sic].” (RB 197.) The short answeris that if no such order actually existed, it is inconceivable that the trial court and prosecutor would both have failed to point that out on either of the two occasionsthat the defense objected on this basis. (24 RT 4656-4657, 4663- 4664.) Second, respondentasserts that neither the prosecutor nor Mr. Sentman “knew” Sentman would be a rebuttal witness and that the prosecutor did not “kn[o]w” that Sentman wasin the courtroom. (RB 199.) Again, however, one would have expected the prosecutor to have mentioned such a lack of knowledgeifindeed it was the case, but she did not. And in any event, as the above-quoted language from People v. Valdez makesclear, “knowledge”that a person would be called as a witness is not whattriggers the duty to ensure compliance with a witness-exclusion order. Ifa person is merely a “potential” witness, the party in question mustseeto it that the witness complies with the court orderor else must accept “that except on good cause the witness will no longer be available for testimonial purposes.” (Valdez, 177 Cal.App.3dat p. 692.) Any other conclusion would open the door to wholesale disregard of witness-exclusion orders, since counsel could virtually always claim, in good faith, that he or she didn’t “know”for certain that the witness would becalled. Third, respondentasserts that “the anticipated testimony by Sentman did not appear to be prejudicially impacted by his presence in the courtroom during appellant's testimony.” (RB 200.) Au contraire. At a motion to suppress evidence broughtpriorto trial, Sentman hadtestified in a manner that, while favorable to the prosecution on the suppressionissue, was entirely -|57- consistent with the defenseat trial.°' (See AOB 255-256.) By being in the courtroom during appellant’s trial testimony, Sentman learned whatportions of his version of events needed to be changedin orderto be a prosecution- favorable witnessattrial. Finally, respondent contendsthat“the alleged error was in any event harmless under any standard because the prosecutor could have conveyed to Sentman thepoints in appellant’s testimonythat she wished rebutted even had Sentman beenabsentfrom the courtroom during appellant’s testimony.” (RB 200.) This contention makes no sense. The “alleged error” was allowing Sentman to testify after the violation of the witness-exclusion order. If Sentman had not been allowedto testify, Sentman would not and could not have “rebutted” any of “the points in appellant’s testimony that [the prosecutor] wished rebutted.” B. Sanction for the Unjustifiedly and Misleadingly Belated Discovery Prior to trial, the Probation Department had represented that four “chronos” constituted “all records” that the Department had related to appellant. Also priortotrial, Probation Office Sentman had representedto the court, in tworeports andin testimony underpenalty ofperjury at the motion to suppress evidence, that “[pJhone contact was made monthly with the defendant until approximately December of °94”° and that “minimally I 6 Sentman’s testimony was favorable to the prosecution at the motion because it tended to contradict the defense contention there had been “a de facto termination of [appellant’s] probation” when the Probation Departmentallowed appellant to moveoutof state, which, according to the defense, precludedjustifying the challenged search as a “probation search.”. ° 25 RT 4766;see also, e.g., Supp.CT 51 (losing contact with appellant “[a]s of December, 94”), 25 RT 4766 (“[n]Jo contact 1-95”). -158- talked to him at least once a month, if not more” between August and November 1994.© Attrial, however, after the defense rested,Sentman came forth with some“field notes”that had beenin the samefile as the chronos and upon whichhe basedan entirely new anddifferent story. The new story was that the only time he had spoken with appellant was on August 2, 1994,after whichhe “had no personal contact with the defendantat all.” (25 RT 4803.) Despite the contrary pre-trial representations and the unjustifiably belated production ofthefield notes,the trial court permitted Sentmanto testify to his new version of the facts and thereby committed error. (AOB 262-264.) Respondentclaims the issue is forfeited “because [appellant] never objected to Sentman’s use of the field notes whenhetestified as a rebuttal witness and never moved to exclude any reference to the field notes in Sentman’s rebuttal testimony.” (RB 201. See also RB 217 [similar].) By focusing on the “use of” and “reference to” the field notes in Sentman’s testimony, respondent appears to misunderstand the issue. The entirety of Sentman’s rebuttal testimony was based upon the withheld field notes, andit wasthe entirety ofthat testimony that the defense sought to exclude. And as the trial court explicitly stated, “I did not find that [Sentman’s] testimony should be stricken or precluded.” (25 RT 4873.) As this quotation plainly shows, the trial court understood the defense to be seeking to “preclude” Sentman’s entire testimony. Further objections to Sentman’s “use of” or “reference to” those notes in the course ofhis testimony wasnot required, and in any event, in light of the trial court’s rulings, would have beenfutile.” 63 1 RT 65; see also 1 RT 66. 64 The trial court made its quoted statement in the course of denying a lesser, instructional sanction for the failure to provide timely discovery: “I did not find that [Sentman’s] testtmony should be stricken or (continued...) -159- Respondent contendsthat the issue is also forfeited because “appellant himselfused the field notes in his cross-examination ofSentman.” (RB 201.) This contention is meritless. “‘“An attorney who submits to the authority of an erroneous, adverse ruling after making appropriate objections or motions, does not waivetheerror in the ruling by proceeding in accordance therewith and endeavoring to make the best of a bad situation for which he was not responsible.”’ (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-213, quoting People v. Calio (1986) 42 Cal.3d 639, 643, and Leibmanv. Curtis (1955) 138 Cal.App.2d 222, 225.) On the merits, respondent’s defense of the admission of Sentman’s testimony, in toto, is that “[n]otwithstanding appellant’s contention to the contrary, the prosecutor complied with Penal Code section 1054.1, subdivision (f), by procuring copies ofthe field notes and providing them to defense counsel before Sentman’s rebuttal testimony and by providing to defense counselpriorto trial all the other pertinent reports Sentman prepared regarding his probationary supervision ofappellant.” (RB 217.) Respondent is correct that the defense did, priorto trial, have “the other pertinent reports Sentmanprepared,” but those reports told a very different story from the one Sentmanoffered at trial based on thefield notes. It is the withholding of the field notes that is at issue here, and respondent’s suggestion that the end-of- trial production of the field notes was proper because the prosecutor “complied with Penal Code section 1054.1” is wrong on the law and disregards the full context. For onething, section 1054.7 requires (and required at the timeoftrial) that discovery be provided “at least 30 days prior to the trial.” *(...continued) precluded,nor do I think I should givethis special instruction.” (25 RT 4873.) The denial of that lesser sanction is addressed in Subsection D,post. -160- In addition, when defense counsel requested documentslike thefield notes from the prosecution two yearsbeforetrial, “the prosecutor advised me [defense counsel] that they did not have that information and I should go directly to the Probation Department.” (25 RT 4841.) And whenthe defense went“directly to the Probation Department” with a subpoenaduces tecum, the Department’s response wasthat the only documentsthat existed were the four chronos. (3 CT 937; Exh. WW,3" page.) Indeed, as respondentitselfadmits, “It]he Probation Department provided none of the field notes when it responded to the April 22, 1996 defense subpoena duces tecum,althoughit keptthefield notes in the sameprobationfile as the chronos.” (RB 200.) At no time did either the prosecutor, the Probation Department, or Mr. Sentman ever suggest there was any justification for the last-minute disclosure of the field notes. Thus, the issue here is not merely that the field notes were divulged belatedly, which would be troubling enoughbyitself. This case also involves multiple affirmative misrepresentations by the Probation Departmentand by Sentman himself, misrepresentations on whichthe defenserelied in preparing for trial. (See, e.g., 25 RT 4762.) The only remedy for what happened here wasthe exclusion of Sentman’s testimony. 6 Tellingly, respondent doesnot argue that ifthere waserror, that error could be deemed harmless as to Counts 2 and3. Appellant notes parenthetically that respondent errs whenit says that appellant testified that when he went to Alabamain the summerof 1994, he “worked at a part time job at T & W Seafood in Bayou La Batre.” (RB 205, citing 21 RT 4019-4021.) Appellant worked in the Alabama seafood industry on several occasions, and, as the RT pages cited by respondent actually show, appellant was unable to say when he worked at T & W Seafood. His testimony wasthat he worked there “at some point in time” or “from time to time.” (See 21 RT 4020-4021.) -161- C. The Trial Court’s Double Standard Thetrial court’s decision to permit Mr. Sentmanto testify despite the clear discovery violation stands in markedcontrastto its decision to preclude the defense from impeaching Tin Duc Phan because of a supposed discovery — violation by the defense. (See AOB 264. See also AOB§ I1.2.A, pp. 97-105 and also ARB § 1.2.A,pp.36 et seq., ante.) The RB respondsthat “there was no double standard” because the trial court was correct in precluding the impeachment of Tin Phan. (RB 218.) Respondent is wrong about the propriety ofthetrial court’s ruling with respect to Tin Phan (see ARB §1.2.A, pp. 36 et seq., ante), but even if respondent werecorrect, its argument does nothing to address the double-standard question. If it was appropriate to precludethe defense from eliciting evidence to impeach Tin Phan because of a defense discovery violation, then why wasn’t it also appropriate to preclude the prosecution from producing evidence to impeach appellant because ofthe prosecution’s far more blatant discovery violation? This is the question posed by appellant’s double-standard argument, and respondentfails to deal withit. D. Refusal to Instruct on Belated Discovery In the AOB,appellant has argued thatthe trial court erred by refusing the defense request that the jury be instructed that the failure to disclose the field notes could be considered on the question of Sentman’s credibility and accuracy. (AOB 264-265.) Respondentasserts that the instruction was properly refused because there wasno “evidencethat appellant’s ability to challenge Sentman’s rebuttal testimony wasadversely effectedby the late disclosure ofthe field notes” and no “evidence supporting an inference that the late disclosure ofthe field notes wastriggered by an attemptby the prosecutorto gain tactical advantage over the defense.” (RB 219, citing People v. Bell (2004) 118 Cal.App.4th 249, -162- 254.) Respondent’s argument does not make sense. An unjustified failure to comply with discovery obligationsis itself “relevant evidence the jury could considerin assessing the credibility of [a witness’s] testimony.” (People v. Riggs (2008) 44 Cal.4th 248, 310.) The credibility assessment does not turn on whetherthe opposing party has been “adversely affected” by the delay or by whether the delay was part of a schemeto “obtain a tactical advantage.” Rather, it turns on whether“inferences... might (or might not) be drawn” as the result of the tardy disclosures. (/bid.) AsforPeople v. Bell, the only authority cited by respondent, it does not support respondent’s position. True, Bell did find error in the giving of a prosecution-favorable instructionrelated to belated disclosures by the defense, but the reasonsthe instruction was found to be erroneousare inapplicable to the instruction that the defense proposed in the present case. Of most significance, the instruction in Bell “invite[d] thejurors to speculate” because “it told them to evaluate the weight and significance of a discovery violation without any guidance on howto do so.” (118 Cal.App.4th at p. 257. See also id. at pp. 255-256 [discussing the “no guidance” and“speculation” points].) In the present case, by contrast, the proposed instruction would have focused the jury on exactly the relevant point: the credibility and accuracy of Sentman’s testimony. Respondentalso contendsthat anyerror in refusing the instruction was nonprejudicial. According to respondent,“[a]ppellant’s trial counsel had [the] benefit ofthe notes when questi[o]ning appellant, and appellant cannot show a reasonable probability of a different outcome if the instruction had been given as requested.” (RB 219.) Respondentis in error as to when defense counsel was given the notes. They were turned over to the defense on June -163- 24, 1998. (See 25 RT 4761.) Appellant’s testimony had ended six days earlier. (See 22 RT 4284.) As for respondent’s contention thatthere is no “reasonable probability of a different outcome,” respondent does not deny that reversal would be required under the Chapmantest, and in any event, the contentionis, again, conclusory. It does not addressthe closenessofthe case against appellant or the weaknesses of the only testimony placing appellant at the scene of the shooting, nor doesit deal with the fact that Sentman’s new story, based on the field notes, must have been key to the jury resolving its doubts in the prosecution’s favor as to Counts 2 and3. E. Precluding Defense Rebuttal Testimony from Le Nguyen Completing the quintuplet oferrors arising from the Sentman evidence was the trial court’s refusal to allow the defense to call Le Nguyento rebut Sentman, ruling that her testimony wasirrelevant because she did not see appellantat “someout-of-state location” between July 4 and July 19 and could not testify that he “actually left the area.” (AOB 265-268.) As the AOB argued, Le’s testimony was relevant (1) as circumstantial evidence that appellant was out ofstate, (2) as evidence of appellant’s “statementofintent for] plan” when “offered to prove... acts or conduct ofthe declarant” (Evid. Code, § 1250, subd. (a)(2)), (3) as corroboration that appellant did in fact leave the state as he told her he was going to, and (4) as impeachment of Sentman’s claim that he saw appellant in person on July 13 and 19, 1994. Respondentoffers a smattering of justifications for the trial court’s ruling, but none has merit. (RB 220-223.) First: respondent contendsthat“Le could nottestify appellantleft the state or even left the area after leaving her apartment.” (RB 221.) This -164- contention is factually incorrect. As the AOB pointed out, Le was prepared to testify that she contacted appellant by phone in July by dialing a phone numberin Alabama. (25 RT 4815, 4856.) Respondent’s contention is also incorrect as a matter oflaw and logic because, with or without the July phone call, the fact that appellant stopped living with Le and was not seen again by her after he told her he was going to Alabamawascircumstantial evidence that appellant had in fact left the state. That reasoning is embodied in Evidence Codesection 1250itself. (See Evid. Code, § 1250, Comment — Assembly Committee on Judiciary [“‘a statementofthe declarant’s intent to do certain acts is admissible to prove that he did thoseacts.”].) Second: respondent contends that Le’s testimony would “not rebut Sentman’s testimony that his field notes and chrono file showed personal contacts with appellant on July 13 and July 19 [of 1994], since the field notes and chronofile referenced in Sentman’s testimonyalso reported that appellant mentionedthe possibility of moving to Minnesota when he camein to see Sentman on July 13.” According to respondent, “Sentman could not have confused those reported contacts with contacts with Le in which Le told Sentmanthat appellant moved to Alabama and told Sentman how appellant could be reached in Alabama.” (RB 221-222.) There are several flawsin this contention. For one thing, respondent simply presumes that Sentman’s most prosecution-favorable version ofevents in July 1994 is whatis controlling,as ifthat version were sofirmly established that the defense could be precluded from introducing contrary evidence. Appellant knowsof no support in the law for this way ofapproachingan issue ofadmissibility, and respondentcites none. -165- Moreover, and contrary to what respondentsuggests, the field notes did not themselves indicate that Sentman met with appellant in person on either July 13 or 19. Rather, after looking at the field notes, Sentmantestified that he and appellant met in person “as best as I can remember.” (25 RT 4741.) It was thus Sentman’s purported memory,notthe field notes or the chronos directly, that was the source ofhistrial claim ofhaving had personal contact with appellant in July. And Sentman’s memory washighly suspect. Amongotherthings,his claim attrial that appellant mentionedthe possibility ofmoving to Minnesota in July wasin conflict with the probation report he had authored in May 1995, in which he wrotethat “[i]n July of94 [appellant] wasallowed to moveto the state ofLouisiana’to live “with his family,” with no mention of Minnesota whatsoever. (25 RT 4768; see Supp.CT 51.) What Sentman wrote in the report was also what hehadtestified to at the pre-trial motion to suppress, namely, that he had given appellant permission to move to Louisiana in July 1994. (1 RT 6], 62.) Third: respondent contends that Le’s testimony as to appellant’s _ “statement of intent [or] plan” was not admissible under Evidence Code section 1250 because the statement was “made under circumstancesindicating its lack oftrustworthiness,” namely,“the self-serving nature ofthe statement and appellant’s desire to shield Le from any knowledge of his impending criminal activities.” (RB 222.) But here again, respondent’s argumentis 66 Indeed, Sentman’sbasic reliability as a recorder ofevents is cast into doubt byhis referencesto “Louisiana”as the place where appellant was going to live “with his family.” Appellant had family in Alabama, not Louisiana, and the phone numberhe gave Sentman had an Alabamaarea code. The AOBdiscussedthis additional sign ofSentman’s unreliability (AOB 256 fn. 156), and respondent doesnot disputeit. -166- premised on the theory that it is proper for the trial court to exclude evidence by adopting a prosecution-favorable view of the case, as if that view were incapable of being contradicted. Not only does such an approach unconstitutionally usurp thejury’s function and violate the Sixth Amendment right to a jury trial,®” but its premises are wrong. Nothing except speculation supports respondent’s assertions that appellant’s statements to Le were “self- serving.” The statements were unremarkable, madein the course ofwhat was just the type of conversation that would be expected when a family member plans on moving out, and the statements were corroborated by appellant’s subsequent absence from Le’s house andhis presenceat a phone in Alabama. The mere possibility that a person may have spokenfalsely, without more,is “insufficient to render... statements unreliable” under Evidence Codesection 1252. (People v. Guerra (2006) 37 Cal.4th 1067, 1114. Accord Peoplev. Rowland (1992) 4 Cal.4th 238, 264.) Asfor respondent’s assertion that appellant had a “desire to shield Le from any knowledge of his impending criminalactivities,” there is again no support for the claim other than unadorned speculation. Moreover, the claim is premised upon the assumption that appellant was guilty of the crimes charged in Counts 2 and3,i.e., that he wasin fact the back seat passenger in the car from which Tony Nguyen wasshot somedayslater. But this was the very point that the evidence wasoffered to undermine, andit was a point that the jury had the sole powerto decide, not the trial court. This is undoubtedly why respondent cites nothing to support its premise that a trial judge can exclude defense-favorable evidence if he or she concludes the defendantis guilty of the crime charged. 67 See ARB section I.1.C.1, pages 14 et sequitur, ante. -167- And on topofall of these points, no evidence was presented that the offenses against Tony Nguyen were planned daysin advance,let alone that appellant was involved in or aware of such planning, so respondent’s claim that appellant had “knowledge of impending criminal activities” at the time of his statements to Le is speculation piled upon speculation. Finally, respondent’s claim ofunreliability was not made below,so that appellant had no opportunity to produce facts to show its reliability. Consequently, that groundis notavailable to justify the trial court’s ruling now. (See ARB § I.2.A.2, pp. 40 et seq., ante.) | Fourth: respondent contends that Le’s testimony would have been cumulative of the testimony of appellant’s sister Nen in a few respects. (RB 222.) However, respondentdoes not attempt to arguethat the entirety ofLe’s testimony could be deemedto be cumulative. Most significantly, respondent does not dispute that Nen did not testify about having any contacts with Sentman during July 1994 or at any other time. But even as to matters where Le would have given similar testimony to Nen, the trial court could not properly have excluded that testimony as cumulative. “Evidence that is identical in subject matter to other evidence should not be excluded as ‘cumulative’ whenit has greater evidentiary weight or probative value.” Thus, evidence is not cumulative where, for example, “It]he jury would be more inclined to believe” it than already admitted evidence, or where it “repeats or fortifies a part of the [proponent’s] case which had been attacked”by the other side, or whereit is “the most effective 68 People v. Mattson (1990) 50 Cal.3d 826, 871, citing People v. Carter (1957) 48 Cal.2d 737, 748-749. -168- way” to present a relevant matter. Moreover, appellate courts have recognized that “[i]t is often invaluable to have evidence comefrom different sources.””” Virtually all ofthese considerations apply to Le’s testimony. Her testimony would have “fortified a part of [appellant’s] case which had been attacked”by the prosecution via Sentman’s testimony. And not only would Le’s testimony have been “invaluable” for having “come from [a] different source[],” but since Le was the person with whom appellant was actually living beforeheleft, her testimony was“the most effective way”to present the testimony and had “greater evidentiary weight or probative value” than Nen’s. Fifth: Respondentasserts that appellant’s federal constitutional claims should be forfeited because they are “being made for the first time in this Court.” (RB 223.) This contention is wrong for the reasons previously discussed. (See, e.g., ARB §§ 1.1, p. 12; U.1.J, p. 112, ante.) 69 People vy. Carter, supra, 48 Cal.2d at page 748; People v. Graham (1978) 83 Cal.App.3d 736, 741, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558; Jones v. City ofLos Angeles (1993) 20 Cal.App.4th 436, 446. See also Chambers v. Mississippi (1993) 410 U.S. 284, 294 (due process violated where exclusion ofdefense evidence madethe defense case “‘far less persuasive than it might have been”). ” Monroy v. City ofLos Angeles (2008) 164 Cal.App.4th 248, 267. -169- 6. IF REVERSAL OF COUNTS 2 AND 3 IS NOT REQUIRED BY ANY OF THE PRECEDING CLAIMS BY ITSELF, REVERSAL WOULD BE REQUIRED BECAUSE OF THE CUMULATIVE PREJUDICE OF THE ERRORS Appellant has argued that the reversal ofCounts 2 and 3 is required as the result ofthe cumulative impactofall ofthe preceding errors. (AOB 269.) Respondent disagrees (RB 223), but inasmuchas its argumentis short and conclusory, there is nothing to which appellant can reply. 7. IF THIS COURT WERE TO CONCLUDE THAT DEFENSE COUNSEL FAILED TO PRESERVE ANY OF THE AFOREMENTIONED CLAIMS, THEN A NEW TRIAL WOULD BE REQUIRED ON THE GROUND THAT APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL The AOBargues that if this Court were to conclude that any of the aforementioned claims here in Section III were forfeited, then appellant was denied his constitutional right to the effective assistance of counsel. (AOB 270-271.) Respondentdisagrees in conclusory fashion but does not denythat there was notactical reasonfor any failure to object or any objection deemed to be inadequate. (Compare AOB 270 with RB 224.) Respondentdoes contendthatthe constitutionalissues raised in Section III should be forfeited. Its argument is that “[nJotwithstanding appellant’s allegation, this Court has foundconstitutionalclaimsforfeited when notraised in the trial court” and that therefore, this Court “should find the pertinent constitutional claimsforfeited here.” (RB 24,citing People v. Tafoya (2007) A? Cal.4th 147, 166; People v. Geier, supra, 41 Cal.4th at p. 609; People v. Halvorsen, supra, 42 Cal.4th at pp. 413-414.) We have shownthe defect in -170- this contention before: a constitutional claim is not forfeited on appeal when “the new argumentsdo not invokefacts or legal standardsdifferent from those the trial court was asked to apply, but merely assert that the trial court’s act or omission, in addition to being wrong for reasons actually presented to that court, had the legal consequence of violating the Constitution.” (People v. Gutierrez, supra, 45 Cal.4th at p. 809. See also, e.g., ARB §§ I.1.b, p. 12; II.1.J, p. 112, ante.) Indeed, this principle of law is acknowledged in two of the very cases respondentcites. (See People v. Geier, 41 Ca1.4th at pp. 610- 611; People v. Halvorsen, 42 Ca1.4th at p. 408 fn. 7.) Respondent makes no effort to show whythis principle is not controlling as to the constitutional claims now at issue. -171- IV. COUNTS4 AND 5 (relating to the November24, 1994 shooting of Huy “PeeWee” Nguyen) In Counts 4 and 5, appellant was convicted of attempted murder and gangparticipation in connection with the shooting ofHuy “PeeWee” Nguyen on November24, 1994 (four monthsafter the shooting ofTony Nguyen, two- plus monthsbefore the killing of Sang Nguyen, and five-plus months before the killing ofTuan Pham). Theoffenses occurred outside the Mission Control video arcade and in the immediate aftermath of a fight in which PeeWee and several associates had been beating the male who would do the shooting. The primary contested issueat trial was whether appellant was the shooter. The two eyewitnesses upon whomthe prosecution’s case depended were,atbest, inconsistent, and other witnesses affirmatively contradicted them. The defense also attempted to take the position that the killing was done in unreasonable self-defense and thus was no morethan attempted manslaughter, but the trial court refused to instruct the jury as to that possibility. (See Section 1, which follows.) 1. THE TRIAL COURT’S REFUSAL TO INSTRUCT ON UNREASONABLE SELF-DEFENSE REQUIRES REVERSAL OF COUNTS4 AND 5 In the AOB,appellant has argued thatthe trial court erred in refusing to instruct on imperfect self-defense in light of the establishedprinciple that “ijn the exercise of his right of self-defense . . . a person may pursuehis assailant until he has secured himself from dangerifthat course . . . appears reasonably necessary” and that “[t]his law applies even though the assailed person might moreeasily have gainedsafety byflight or by withdrawing from the scene.” (27 RT 5283-5284,3 CT 1053, quoting CALJIC No.5.50; accord CALCRIM No. 3470. See AOB 272-275.) -172- In evaluating appellant’s claim, this Court does “‘not view the evidence in the light most favorable to the [respondent]” and does “not . . . draw all >” Rather, it must “view the evidence in the light most favorable to defendant[].” (Whiteley v. Philip Morris (2004) 117 Cal.App.4th 635, 655, quoting Logacz v. Limansky (1999) 71 inferences in favor of the judgment. Cal.App.4th 1149, 1156 and citing, inter alia, Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 674. See also People v. Randle (2005) 35 Cal.4th 987, 1004 [reversal required because of refusal to instruct on unreasonable defense of others where the evidence was “susceptible of the interpretation that defendant’s belief in the necessity of protecting [a third party], supposingheheld such a belief, was unreasonable”].) The Court also does “not evaluate the credibility of witnesses, a task for the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) An imperfect-self-defense instruction wascalled for here in appellant’s case because, viewing the recordin the light most favorable to appellant, there was evidence from which a jury could reasonably have concluded either (1) that appellant believed that PeeWee, although wounded,wasstill capable of inflicting further grievous injury by procuring a firearm or enlisting help from armedassociates,or at least (2) that the prosecution hadfailed to prove beyond a reasonable doubtthat appellant did not so believe. (AOB 272-275.) Respondent contends there was no substantial evidence to support imperfect self-defense, but at most, its argument suggests merely that there wasno basis for a reasonable beliefin the need for self-defense once PeeWee had been shot. (RB 229.) Respondent does not show that the evidenceis incapable of the interpretation that appellant had an unreasonable fear that PeeWeecouldstill cause him serious harm. Respondent recognizes that an endangeredperson “may pursue his assailant until he has secured himselffrom -173- danger if that course likewise appears reasonably necessary.” (RB 229.) Respondent also acknowledges that appellant has argued that a jury could reasonably have “foundthat appellant . . . believedit was still necessary to secure himself from imminent lethal danger by preventing PeeWee from obtaining a firearm or summoningone or more comrades who had a firearm.” (RB 230.) To these points, respondent’s answers,in full, are that “there was no substantial evidence supporting this instructional scenario” and that “the trial record belies the contention.” (RB 229, 230.) These responses are entirely conclusory and citation-free. They do not deal with the evidence (assumed to be true for present purposes) that PeeWee had initiated an unprovoked assault on appellant, that he had then garnered and deployed considerableforce in support ofthat assault, and that after being shot, PeeWee had run into the arcade from which, appellant could have believed, PeeWee could musterstill more serious force to use against appellant. Appellant has argued that the refusal to instruct on imperfect self- defense violated the federal Constitution. (AOB 275.) Respondent’s position is that any erroris of state law only. (RB 230-231.) This Court has agreed with respondentandheld that the Watson test applies. (See People v. Randle, supra, 35 Cal.4th at p. 1003; People v. Breverman, supra, 19 Cal.4th 142.) Appellant respectfully disagrees with this Court’s holdings and requests that the Court reconsider the issue if it concludes that the Watsontest is not satisfied here. Thetrial court’s ruling violated the Constitution becauseitwas a refusal to instruct on a defense, it undermined the requirement of proof beyond a reasonable doubt and the right to a meaningful opportunity to present a defense, andit denied appellant due process of law. But thereis no need to reach that issue. Prejudice must be found under Watson because “the -174- evidence was... susceptible ofthe interpretation” that appellant acted in the belief in the necessity to pursue PeeWeefor the reasons we have discussed. (See Randle, id. at p. 1004. See also, e.g., Krotin v. Porsche Cars North America (1995) 38 Cal.App.4th 294, 298 [“we must assumethe jury might have believed [appellant’s] evidence and, if properly instructed, might have decided in [appellant’s] favor.”], internal quotation marks and citations omitted.) The error here plainly cannot be deemed to have been harmless even under the Watsontest.” 7 As an aside, appellant notes that there are significant deficiencies in respondent’s summaries of the testimony of Cindy Pin and Shannon Choeun,the prosecution’s eyewitnesses. For example, respondent omits (1) the discrepancy between their descriptions of the shooter and appellant’s actual characteristics, (2) their limited opportunity to observe the shooter (Shannon characterized hers as a “glimpse’”’), (3) their failures to select appellant’s photograph from photo lineups, (4) the six-month delay before viewing appellant in a live lineup (at which Cindy was uncertain), and (5) their expressions ofuncertainty when they saw appellantat the preliminary hearing andat trial. (Compare AOB 18-22 with RB 226-227.) Respondent omits that when Me Kim (a companion of Cindy and Shannonat the scene) saw appellant’s photograph in a photo lineup, she indicated he did notlook like the shooter; that when she vieweda live lineup in which appellant was a participant, she selected two other individuals as looking like the shooter; and that when she saw appellant in court, she again did not think he was the shooter. (18 RT 3453-3458, 3485.) Respondentomits that Andy Ja testified that he knew appellant and saw PeeWeefighting at the arcade but that appellant was not the person PeeWeewasfighting with. (19 RT 3550, 3566, 3568.) And respondent errs when it says Shannon “saw PeeWee arguing with appellant.” (RB 227.) Shannon saw PeeWeearuging with a male, but she could not say who the male was. (See AOB 20.) -175- 2. THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE JURY’S VERDICTS AS TO (1) THE CRIME OF ACTIVE GANG PARTICIPATION IN COUNT 5 AND (2) THE GANG-BENEFIT ENHANCEMENTSATTACHED TO COUNTS4 AND 5 In the AOB, appellant has argued that there was no substantial evidence that the shooting of PeeWee Nguyen was gang-related and that therefore this Court must set aside the jury’s verdicts as to the gang- participation crime in Count5 and the gang-benefit enhancementsattached to both Counts 4 and 5. The argument was premised upon (1) eyewitness testimony that it was PeeWee whoinitiated an unprovoked assault upon the shooter (who for present purposes we assume wasappellant), (2) eyewitness testimony that after having shot PeeWee, the shooter uttered words of personalaffront and having nothing to do with a gang(“If anyoneis against me, I’ll shoot them, too.”), and (3) the fact that, unlike every other incident with which appellant was charged, the prosecutor never even attempted to elicit an opinion from her gang expert (Det. Nye) that this offense was gang related or done for the benefit of the gang, nor did she make any such claim in her argumentsto the jury. (See AOB 276-278.) Respondent does not agree. (RB 231-236.) Its contention is that evidence “supported the reasonable inference that on November 24, 1994, appellant was hunting for rival gang members at Mission Control, a known Cheap Boy hangout, spotted Pee Wee, whohe believed belonged to another deadly rival gang, T.R.G., and tried to kill Pee Wee followinga fight in order to promote his own reputation as a Nip Family gang memberandin order to enhancethe reputation ofNip Family.” (RB 233.) According to respondent, the record “show[s] a gang confrontation rather than a personaldispute.” (RB 234.) -176- In part, respondent’s contention is based on an overreaching view of the evidence, and in part, it is simply ipse dixit. Consider, for example, respondent’s assertion that Mission Control was “a known Cheap Boys hangout,”an assertion that respondent makes twice and that it supplements by stating that “[p]olice had contacted Cheap Boyshotcaller Khoi Huynh there along with eight other Cheap Boys on May 14, 1992.” (RB 233, 234,citing 10 RT 1943-1944 [testimony ofKhoi Huynh]; 17 RT 3316 [Det. Nye].) But Detective Nye’s testimony does not support either statement. All Nyetestified 39 oeto on page 3316 is that Khoi Huynh was“oneofthe shot-callers,” “one ofthe leaders of the Cheap Boys Gang . . . and seems to speak for the members of the gang.” As far as appellant can determine, Nye did not mention Mission Control anywhere in his testimony. And as for Khoi Huynh’s testimony, Khoi expressly denied that Mission Control was a Cheap Boys hangout. (17 RT 1943.) All he testified to was that he had been to Mission Control several times and that he and several other Cheap Boys had been contacted there by police on May 14, 1992—which wasthree and one-halfyears before PeeWee wasshot.” Consider, too, respondent’s statement that in the fight with PeeWee, “appellant was assisted by his friends” and that “[a]lthough they denied participating in the fight, appellant’s most likely allies in the fight were Jimmy, Mexican Andy and Andy Ja.” (RB 233-234,citing 18 RT 3467 [Me n Evenifthe jury disbelieved Khoi’s denial that Mission Control was a Cheap Boys hangout, such disbelief would not create evidence ofthe opposite of what he said. It is well established that “‘“[dlisbelief [of a witness’ testimony] doesnot create affirmative evidenceto the contrary ofthat whichis discarded.”’” (People v. Loewen (1983) 35 Cal.3d 117, 125, quoting People v. Jimenez (1978) 21 Cal.3d 595, 613, and Estate ofBould (1955) 135 Cal.App.2d 260, 264. See also, e.g., Beck Dev. Co. v. Southern Pac. Transp. Co. (1996) 44 Cal.App.4th 1160, 1205 [same].) -177- Kim], 3502-3504 [Mexican Andy]) However, there is no evidence in respondent’s cited pages that anyonehelped appellant duringthefight. In fact, Mexican Andy expressly deniedhe was involved. (18 RT 3503-3504.) Inany event, neither Jimmy (Phung A. Le), Mexican Andy (Hung Van Pham), nor Andy Ja (Khanh Troung Nguyen) were members of the Nip Family, further undermining respondent’s claim that their (supposed) participationinthe fight showedthat appellant was acting to benefit the Nip Family. Respondent may beinferring this was a gang offense based upon PeeWee’s testimony that before he was shot, he was approached by an unknown male who asked him “Are you ina gang? Do you belong to T.R.?” and that when PeeWeeansweredthat he hadfriends in Tiny Rascals, the male hit him without saying anything further, whereupon PeeWeeraninto the video arcade. (7 RT 1302-1303.) But there are serious problemswith reliance upon this testimony. For if PeeWee’s testimony was accurate, then both of the prosecution’s eyewitnesses (Shannon Choeun and Cindy Pin) were completely wrong about seeing a prolonged fight and completely wrong as to how the fight began. And if the jury credited PeeWee’s version and disbelieved Shannon’s and Cindy’s versions, it is inconceivable that the jury would nevertheless have found Shannon and Cindyto be reliable enough in their identification evidenceto justify guilty verdicts as to this offense. Thus, the guilty verdicts themselves show the jury did not credit PeeWee’s version. Andin any event, PeeWee wasunableto connect the man whohit him to the person whoshot him. But the most telling evidence against respondent’s claim that the shooting of PeeWee Nguyen was committed “in order to promote [appellant’s] own reputation as a Nip Family gang memberandin order to enhance the reputation of Nip Family” is the fact that the shooter -178- spontaneously proclaimedthat he had shot PeeWeefor having been “against me,” words that a person acting to enhancethe reputation of his gang would plainly not use. This evidenceis, undoubtedly, a prime reason why Detective Nyedid not offer any opinion that the shooting ofPeeWee was committed for the benefit of the gang. Respondent does take note of this “against me” evidence but never actually deals with it. All respondent doesis pointto its summary of the evidence en masse and assert, without further explanation, that something in that summary “belies the contention.” (RB 235.) Respondentis obviously unable to explain away this key fact. -179- 3. REVERSAL OF COUNTS 4 AND 5 IS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED ERRORS RELATED TO THE ADMISSION OF THE PREJUDICIAL HEARSAY EVIDENCE RELAYED BY TRIEU BINH NGUYEN In the AOB,appellant argued that reversal of Counts 4 and 5 is called for because ofthe trial court’s errors in permitting the prosecutionto elicit hearsay evidence from witness Trieu Binh Nguyen and by not giving a limiting instruction that such evidence wasnotto be considered for the truth of the matter asserted. (AOB,Section IV.3, p. 279. See AOB Section I.3.B, pp. 115-117 and ARB Section 1.3.B, ante.) The RB’s response is merely to refer to its earlier arguments concerning these issues. (RB 236.) Neither here nor anywhere else does respondent in any way challenge the AOB’s characterization of the prosecution’s case as “far from overwhelming”and“lack[ing] strength” with regard to Counts 4 and 5. (AOB 279.) Appellantthus refers the Court to the briefing cited in the preceding paragraph. 4. REVERSAL OF COUNTS 4 AND 5 IS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED > ERRORS ARISING FROM THE REBUTTAL TESTIMONY OF PROBATION OFFICER STEVEN SENTMAN The AOBfurther arguedthat the errors arising from the prosecution’s decision to call Probation Officer Steven Sentmanas a rebuttal witness also require reversal of Counts 4 and 5. (AOBSection IV.4, p. 280. See AOB Section III.5, pp. 253-268;” ARB Section III.5, ante.) The RB briefly B Appellantnotes that the AOBreferredto SectionIII.5 as being on pages 121-122 of the AOB. The correct pages are as stated in the accompanying text, AOB 253 to 268. -180- summarizesits defensesofthetrial court’s rulings on the Sentman issues but does not elaborate further. (RB 237.) There is nothing for appellant to reply to here. Appellant refers the Court to the briefing cited above in this paragraph. 5. IF REVERSAL OF COUNTS 4 AND 5 IS NOT REQUIRED BY ANY OF THE PRECEDING CLAIMS BY ITSELF, REVERSAL WOULD BE REQUIRED BECAUSE OF THE CUMULATIVE PREJUDICE OF THE ERRORS In the AOB,appellant has argued that the cumulation of errors would require that Counts 4 and 5 be reversed even if no individual error would compelthat result. (AOB Section IV.5, p. 281.) Respondent summarily denies that there were any errors of state or federal law or that there is any prejudice under the Watsontest, but respondent does not elaborate. (RB 237- 238.) Other than pointing out that the Chapmantest applies, there is nothing to which appellant can reply here. 6. IF THIS COURT WERE TO CONCLUDE THAT DEFENSE COUNSEL FAILED TO PRESERVE ANY OF THE AFOREMENTIONED CLAIMS, THEN A NEW TRIAL WOULD BE REQUIRED ON THE GROUND THAT APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL Finally, appellant has arguedthat ifany ofthe claimsraised with regard to Counts 4 and 5 would otherwise be deemed to have been forfeited, those counts would still have to be reversed on the same ground because of ineffective assistance of counsel. (AOB Section IV.6, p. 282.) Respondent asserts that appellant “cannot prove [ineffective assistance] from the state record”but does not address appellant’s point that the record makesclear that -181- there was no tactical reason for any inadequacy ontrial counsel’s part. (Compare AOB 282 with RB 238.) Respondentalsoreiterates its contention from the Tony Nguyenissues that any constitutional issues raised in Section IV should be forfeited. (RB 238.) Appellant will thus reiterate his response to that contention, namely, that constitutional claims are not forfeited on appeal when“the new arguments do not invoke facts or legal standards different from thosethetrial court was asked to apply, but merely assert that the trial court’s act or omission, in addition to being wrong for reasons actually presented to that court, had the legal consequenceofviolating the Constitution.” (People v. Gutierrez, supra, 45 Cal.4th at p. 809. See also, e.g., ARB § IIL7, pp. 170-171 ante, citing People v. Geier, 41 Cal.4th at pp. 610-611; People v. Halvorsen, 42 Ca1.4th at p. 408 fn. 7. See also ARB § I.1.B, p. 12, ante.) Respondent makes no effort to disprovethis principle is controlling as to the constitutional claims nowat issue. -182- V. COUNTS9 AND 10 (relating to the March 11, 1995 shooting of Khoi Huynh) In Counts 9 and 10, appellant was convicted of shooting Khoi Huynh, the Cheap Boys“shot caller,” as Khoi exited a pool hall on March 11, 1995 (three-and-one-half and seven-and-one-half months after the shootings of Tony Nguyen and PeeWee Nguyen,respectively, and one month after the killing of Sang Nguyen). The issue at trial was whether the shooter was appellant. The four eyewitnesses who were not gang members hadall selected the photograph of one An Phungas depicting the shooter, and Khoi Huynhhimself gave inconsistent stories about whether appellant, whom he knew,did the shooting. 1. REVERSAL OF COUNTS9AND 10 IS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED ERRORSIN EXCLUDING EVIDENCE OF THE CHEAP BOYS’ PLAN, MOTIVE, AND OPPORTUNITY TO FRAME APPELLANT In the AOB,appellant has argued that reversal of Counts 9 and 10 is required because ofthe trial court’s errors in excluding evidence that the Cheap Boysbelieved the Nip Family was“ratting” on them and evidencethat the Cheap Boys had a crash pad, where they could meet to discuss and plan gang actions. (AOB 285-286. See AOB 96-111, ARB Section I.2, ante.) Amongotherthings, the AOBpointed out that the prosecution’s case against appellant was “hardly airtight” and “less than overwhelming.” (AOB 283, 285.)" ” Appellant has noticed that the heading for this argumentin the AOBmistakenly referred to Counts 2 and 3. (See AOB 285.) However, as (continued...) -183- On the merits, respondent describes, in summary fashion, its earlier defensesofthe trial court’s rulings on the these issues but does not elaborate further. (RB 239.) Because of the abbreviated nature of respondent’s argument, appellant merely directs the Court to, and incorporates,the briefing cited in the preceding paragraph. Respondent does devote considerable space to the question of prejudice. (RB 240-245.) Nowhere, however, does respondent deny that the case against appellant as to Counts 9 and 10 was a close one. Instead, respondenttakes the same fundamentally incorrect approachto prejudicethat it has taken from the start. It views the evidence from an extremely prosecution-favorable perspective — often, an unreasonably extreme perspective — as if it were proper to presumenotonly that the jury took that perspective but also that the jury would have taken that perspective in the absenceofthe errors. In fact, ofcourse, respondenthasnobasis in law orfact for either presumption. We have previously discussed in detail the foundational flaws in this approach, and we see no need to repeat that discussion here. (See ARB § I.1.C.1, pp. 14 et seq., ante.) Those flaws undermine respondent’s entire discussion here. But even if one wereto disregard the use of a fundamentally incorrect approach, respondent’s discussion ofthe facts is still very badly flawed. For example, addressing the fact that all four of the non-gang eyewitnesses selected the photograph in Position #4 (An Phung) from a photo lineup rather than appellant’s photograph in Position #6, respondent says this can be explained away becausein “the clerk’s transcript reproduction” ofExhibit C, ™(...continued) the context for the argument andits actual text indicated, the argument was directed at Counts 9 and 10. -184- those photographs“look remarkably the same, particularly around the eyes, andare bothdistinct from the remainderofthe photographsin the lineup” and in addition “photo number six is an extreme and distorted close-up of appellant’s face which cuts off a portion of appellant’s ears.” (RB 240.) Later, respondent says that “photo number six was a distorted close-up of appellant’s face which offered no dimensional perspective of the face and only depicted a portion of appellant’s ears.” (RB 242.) With due respect, none ofthis is accurate. Ofcourse, we do not knowfor certain what respondent’s specific copy of “the clerk’s transcript reproduction” of Exhibit C looks like, but if it resembles appellant’s, it simply consists of faces outlined in uneven white lines against a black background,lacking detail or even shades ofgray. (2 CT 640.) The actual Exhibit C consists of six color photographsoffull faces. (See copy ofExh. C at the back ofthis brief.) But in neither the actual Exhibit C norin the Clerk’s Transcript version ofthat exhibit do Photo #4 and Photo 9#6 “look remarkably the same.” An Phung hasa long, thin face, whereas appellant’s face is rounder, fleshier. As for the areas “around the eyes,” An Phunghas dark, full eyebrows, whereas appellant’s are light and sparse.” With regard to respondent’s assertion that Photo #4 and Photo #6 are “distinct from the remainder ofthe photographsin the lineup,” this is further unsupportable ipse dixit. Perhaps appellant’s photo, being a slightly nearer » Respondent notes with apparent agreement the prosecutor’s remarkable closing argument contention that the photo ofAnh Phung “must looka lot like” appellant’s photo because witnesses at both the Khoi Huynh and Duy Vu crime scenes selected the photo of Anh Phungas that of the shooter. (RB 242.) Since the photos in fact do not look alike, a far more reasonable inference is that Anh Phung, and not appellant, was involved in each ofthose incidents, andthat appellant should have been acquitted not only of the Duy Vu charges, but the Khoi Huynh charges as well. -185- close-up than the other photos, was somewhat“distinct” for making his face largerthan the other five, but that fact is affirmatively harmful to respondent’s position, because it means appellant’s face was more prominentin the display and thus gives moresignificanceto the fact that the witnessesfailed to select appellant as the shooter. Noris it possible to understand respondent’s claim that appellant’s photograph was “distorted.” If it is “distorted” at all — and wedonot see it— it is no more distorted than anyofthe other five photographsin the array. Andfinally, as for respondent’s claim that appellant’s photograph“cuts off a portion of appellant’s ears” and “only depicted a portion of appellant’s ears,” the most that can besaidis that a tiny portion ofthe very farthest edges of his ears are missing in Photo #6. Not only are the missing portions insignificantly small, but the subjects depicted in Photos # 1 and #5 also have the edges of their ears cut off, and indeed the right ear of Photo #4 (An Phung)is slightly cut off as well. Certainly, there is more than enough of appellant’s ears showing in the photo so that any observercouldsee thathe, unlike An Phung,did not have big ears, which is one ofthe characteristics that Jeremy Lenart used whenselecting An’s photograph (see RB 240, citing 9 RT 1792). . Most of the remainder of the RB (RB 242-245) is devoted to respondent’s explanations for why the inconsistencies in the identification evidence from Jeremy Lenart and Khoi Huynh are “not as problematic as appellant contends.” (RB 243, 244.) At best, these explanations are manifestations of respondent’s incorrect belief that a court is supposed to assess prejudice by lookingsolely at evidence andinferences favorableto the prosecution. At worst, these explanations are based on misunderstandings of -186- the facts or their significance.” Either way, they do notin any way justify or support the conclusionthat the trial court’s errors were non-prejudicial with respect to Counts 9 and 10. 7 Respondent suggests, for example, that Lenart’s prior felony conviction wasnotsignificant because it occurred “more than twoyearsafter witnessing the shooting.” (RB 243.) But the conviction affected his credibility at trial, not his ability to perceive at the time ofthe shooting. And the fact that Lenart was placed on probation after the shooting gave him a motive to cooperate with the prosecution that he had nothadearlier. Respondentalso suggests that the “apparent contradictions”in Lenart’s versionsofevent are “explained by Investigator Janet Strong mixing up portions of her interview of Khoi Huynh with her interview of Jeremy Lenart.” In support of this assertion, respondent cites “the prosecutor’s unsuccessful foundational objectionto the pertinent cross-examination inquiry of Jeremy Lenart.” (RB 243.) However, (1) a prosecutor’s unsuccessful objection is not evidence, (2) it was a report by Deputy McClure, not Investigator Strong, that the prosecutor was concerned aboutin raising her objection (see 9 RT 1775-1777), (3) the prosecutor’s concern about McClure’s report had to do with a supposed mistake regarding names, not regarding the events that Lenart had said took place (9 RT 1776-1777), and (4) Lenart himself admitted to depicting events to McClure in a way that was different from his trial testimony (1778-1779). As for Khoi Huynh, respondent purports to “explain[] both Khoi’s memory loss as a trial witness regarding any of the details of the shooting and the identities ofthe shooter, and his earlier reluctance to identify the shooter when he was interviewed by Strong” as being the productofhis “reluctance as a gang memberto risk the stigma of cooperating with the police” until he “had an understandable change ofheart . . . after his friend Tuan Pham wasshot.” (RB 245.) This is an extremely pro-prosecution view of Khoi’s inconsistencies. Among the problems with it — problemsthat a jury uncontaminated byerror wouldlikely have foundto betelling— are that Khoi had fingered appellant in March 1995, well before May 6, 1995, shooting of Tuan Pham (and then Khoireversed himself, too) and that if he had indeed had “an understandable change of heart after Tuan Pham was shot,” then he would not have feigned a memory lossattrial. -187- 2. REVERSAL OF COUNTS 9 AND 10 IS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED ERRORS RELATED TO THE ADMISSION OF THE PREJUDICIAL HEARSAY EVIDENCE RELAYED BY TRIEU BINH NGUYEN In the AOB,appellant arguedthat reversal ofCounts 9 and 10 is called for because ofthetrial court’s errors in permitting the prosecution to elicit hearsay evidence from witness Trieu Binh Nguyen and by not giving a limiting instruction that such evidence wasnotto be considered for the truth of the matter asserted. (AOB, Section V.2, p. 287. See AOB Section I.3.B, pp. 115-117 and ARB § 1.3.B, pp. 65 et seq., ante.) The RB’s responseis merely to refer this Court to its earlier arguments concerning these issues. (RB 245-246.) Neither here nor anywhereelse does respondent in any way challenge the AOB’s characterization of the prosecution’s caseas “far from overwhelming” with regard to Counts 9 and 10. (AOB 287.) Appellant thus refers the Court to the briefing cited in the preceding paragraph. 3. IF REVERSAL OF COUNTS 9 AND 10 IS NOT REQUIRED BY ANY OF THE PRECEDING CLAIMS BY ITSELF, REVERSAL WOULD BE REQUIRED BECAUSE OF THE CUMULATIVE PREJUDICE OF THE ERRORS In the AOB,appellant has argued that the cumulation of errors would require that Counts 9 and 10 bereversed evenif no individual error would compelthat result. (AOBSection V.3, p. 288.) Respondent summarily denies that there were anyerrors ofstate or federal law orthat there is any prejudice under the Watson test, but respondent does not elaborate. (RB 246.) Other than pointing out that the Chapmantest applies, there is nothing to which appellant can meaningfully reply here. -188- 4. IF THIS COURT WERE TO CONCLUDE THAT DEFENSE COUNSEL FAILED TO PRESERVE ANY OF THE AFOREMENTIONED CLAIMS, THEN A NEW TRIAL WOULD BE REQUIRED ON THE GROUND THAT APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL Finally, appellant has arguedthat ifany ofthe claims raised with regard to Counts 9 and 10 are deemed to have beenforfeited as direct-appeal issues, those counts would still have to be reversed becauseofineffective assistance of counsel. (AOB Section V.4, p. 288.) Respondent summarily asserts that appellant “cannot prove [ineffective assistance] from the state record” but does not elaborate. (RB 246.) There is again nothing to which appellant can meaningfully reply. -189- VI. GANG CONVICTIONS AND ENHANCEMENTS (Counts 3, 5, 7, 10, 14, plus ten § 186.22(b) enhancements) 1. THE EVIDENCE WASINSUFFICIENTTOESTABLISH THE “PRIMARY ACTIVITIES” ELEMENT OF THE GANG CRIMES AND ENHANCEMENTS In the AOB,appellant has argued that the evidence wasinsufficient to support the jury’s guilty verdicts as to the five active-gang-participation crimes and the true findingsas to the ten gang-benefit enhancements because of the lack of evidence that commission of crimes enumerated in section 186.22, subdivision (e), was oneofthe primary activities of the Nip Family. The argument is that a determination of the primary activities of a group requires familiarity with the group’s other activities, its non-criminal activities, so that the numberand nature ofthe enumerated crimes committed by certain of its membersonits behalf can be assessed for primariness, but there was no such other-activities evidence presented at appellant’s trial. (AOB 289-293.) Respondent does not deny that no other-activities evidence was presented. Instead, respondent arguesthat since gang expert Nyetestified that “ThJomicides, attempted homicides, assaults, assault with deadly weapons, home invasion robberies, burglaries, auto theft, and narcotics sales” were someofthe Nip Family’s primary activities until 1994 and 1995 (16 RT 3178- 3179) and since he had “personally investigat[ed] Asian gang crimes in Orange County, talk{ed] to several thousand Asian gang members, and talk[ed] to witnesses as well as gang members involved in the Asian gang crimeshe investigated in Orange County” (RB 248), the required showing of primariness was made. This argumentis a non-sequitur. -190- Consider an example used by this Court in People v. Sengpadychith (2001) 26 Cal.4th 316. “Though members of the Los Angeles Police Department may commit an enumerated offense while on duty,” the Court pointed out, “the commission of crime is not a primary activity of the department.” (/d. at pp. 323-324,original emphasis.) Of course, this Court only knew that the commission ofcrimeis not a “primary”activity ofthe Los Angeles Police Department because it had a good idea of the non-criminal activities that the department engagesin. But even if an observerarrived from another planet and knew nothing except that some members of an entity called the Los Angeles Police Department committed some enumerated offenses while on duty, it wouldstill be fallacious for that observer to concludethat such offenses were among the department’s “primary”activities. It would be a fallacy — the Fallacy of Selective Observation, also known asthe Fallacy ofEnumeration ofFavorable Circumstances — because it would be drawing a conclusion as to primacy based on facts selectively observed and reported, on cherry-picked facts, without any informationasto the overall picture ofthe department’s activities. It is this same fallacy that respondentis relying on here (and that the prosecution relied on below)to sustain the “primary activities” element. The prosecution elicited no examplesofany of other Nip Family activities which the jury could use to put the evidence about some members’ crimes into perspective and make ajudgment about whether, beyond a reasonable doubt, commission of enumerated crimes was“one ofthe primary activities” of the group. No evidenceshedlight on any non-criminalofthe activities ofthe Nip Family in a way that would support the jury’s verdict on this element. The gang-benefit enhancementfailed for this foundational reason. -19]- 2. IT IS IMPERMISSIBLE BOOTSTRAPPING TO ADD GANG ENHANCEMENTSTO SUBSTANTIVE GANG OFFENSES Citing principles set forth in People v. Arroyas (2002) 96 Cal.App.4th 1439, People v. Briceno (2004) 34 Cal.4th 451, and People v. Jones (2009) 47 Cal.4th 566, appellant has argued that it was impermissible bootstrapping for the prosecution to add gang enhancements undersection 186.22(b) to the substantive gang offenses in Counts 3, 5, 7, 10, and 14 (§ 186.22(a)). (See AOB294-296.) Without mentioning any of the cases appellant cited, respondent disagrees. Its argument is that there is no bootstrapping because “street terrorism (Pen. Code, § 186.22, subd. (a)), and the gang enhancement(Pen. Code, § 186.22, subd. (b)(1)) do not describe the same conduct.” Respondent explains that the substantive offense (§ 186.22(a)) “requires both that defendant willfully promote, further, or assist in any felonious criminal conduct ofthe criminal street gang and that defendant actively participate in the criminal street gang,” whereas the enhancement(§186.22(b)) “does not require that the person actively participate in the criminal street gang [although] it does require that the person specifically intend to promote, further, or assist in any criminal conduct by gang members.” (RB 249.) Unwittingly, perhaps, respondenthaseffectively conceded appellant’s point. Yes, the offense described in subdivision (a) is narrowerin its reach than the enhancement in subdivision (b), but that does not negate the bootstrapping point. For respondent does not deny that — even though subdivision (a) is narrower than subdivision (b) — every violation of subdivision (a) would include a violation of subdivision (b). It is that -192- »77 that invokes the anti-automatic “double dose of harsher punishment bootstrapping principles upon which appellant relies and that may explain why respondentdoes not addressthe cases appellantcited.” ” Briceno, 34 Cal.4th at page 465, internal quotation marks omitted. 8 The prosecutor’s decision to attach a section 186.22(b) enhancementto a section 186.22(a) substantive offense appears to be unique to this case. As far as appellant can determine, that combination has not been chargedin any reported decision in this State. The enhancement has always been attached to some substantive crime other than the gang-participation offense in section 186.22(a). -193- OVERALL GUILT-PHASE ISSUES VIL. CLAIMS RELATED TO THE ARREST AND PROSECUTION OF THE DEFENSE INVESTIGATOR 1. THE JUDGMENT MUST BE REVERSED FOR INEFFECTIVE ASSISTANCE OF COUNSEL ARISING FROM THE CRIMINAL DERELICTIONS OF THE DEFENSE INVESTIGATOR, DANIEL WATKINS In the AOB,appellant has argued that the entire judgment must be reversed because unreasonable actions taken by defense investigator Daniel Watkins constituted a violation of appellant’s Sixth and Fourteenth Amendmentrights to the effective assistance of counsel. (AOB 297-316.) Furthermore,if this Court were to disagree, the case wouldstill have to be remanded to the superior court so that an appropriate inquiry could be undertaken into whethertrial counsel had a conflict of interest in presenting the motion for new trial in which the ineffective-assistance claim was raised. (AOB 317-320.) Respondent contends otherwise. (RB 250-268.) Respondent’s disagreements, most of which are limited in scope to begin with, are also meritless. A. Ineffective Assistance of Counsel With respectto the claim ofineffective assistance ofcounsel, the AOB argued (1) that severe derelictions of an investigator are properly evaluated underan ineffective-assistance-of-counselanalysis, using the two-steptestset forth in Strickland v. Washington (1984) 466 U.S. 668 and its progeny, (2) that Daniel Watkins’ actions in seeking to “put a shut” on prosecution witness Khoi Huynh constituted deficient performance (Strickland’s Step -194- One), and (3) that appellant was prejudiced as the result of that deficient performance (Strickland’s Step Two). (AOB 297-316.) 1. The Applicability of Strickland Respondent does not in any way dispute the application ofStrickland principles to these facts. The only legal point respondent makes involves a subsidiary matter. Respondentasserts that a trial court’s denial of a motion for newtrial is reviewed under an abuse-of-discretion standard. (RB 258,citing People v. Verdugo, supra, 50 Cal.4th at p. 308, and People v. Nesler (1997) 16 Cal.4th 561, 582.) If what respondent meansis that this Court will “accept the trial court’s credibility determinations and findings on questionsofhistorical fact if supported by substantial evidence” (Nes/ler, ibid.), appellant does not disagree. If, however, respondent means to suggest that this Court owes deferenceto trial court’s finding ofno prejudice, respondent is wrong. As the Nesler decision itself makes clear, the issue of prejudice “is a mixed question of law and fact subject to an appellate court’s independent determination.” ([bid.) 2. Deficient Performance Asfar as appellant can determine, respondentdoes not denythat Daniel Watkins’ challenged actions — actions that resulted in felony charges being filed against him related to witness tampering and obstruction ofjustice — were unreasonable and constituted deficient performance. Nor could any rational person dispute the point. Respondent does devote several pages to arguing that “Hung Mai rather than Watkinslikely initiated the alleged effort to silence Khoi Huynh.” (RB 259. See also RB 260 [similar].) There are two independent answers to this argument. The shorter response is to demur. Why doesit matter whether -195- Watkins “initiated” the effort to silence Khoi? Respondent never explains. Whicheverofthe two initiated it — Mai or Watkins — the fact remains that Watkins was involved hook, line, and sinker in witness tampering and obstruction ofjustice and was engaging in this behavior in disregard oftrial counsel’s wishes. Andit is thefact ofWatkins’ involvementthat matters, not whetherhe initiated the misdeeds. The longer answeris that the evidence showsclearly and convincingly that it was Watkins whoinitiated the effort. The key evidenceis the “put a shut” conversation itself. For in that conversation, Mai explicitly indicated that it was Watkins who was initiating the effort to silence Khoi Huynh. Speaking to Watkins, Maisaid,“You want meto put a shut on Khoi”and “if you want... I need that soon ifyou want that taken.” (5 CT 1726 §67c, ellipses in original indicating pauses or incomplete sentences.) The AOB highlighted this evidence, but respondent does not deal with it, presumably because it cannot be reconciled with the claim that Maiinitiated the effort to silence Khoi. It may betrue, as respondent argues, that there was evidence from which one could infer that Mai had a motive to “ingratiate himself with appellant” (RB 259), but the most that this motive evidence doesis explain why Mai would cooperate with Watkins’ scheme. It does not show that he actually wasthe instigator of that scheme. And not only is there no other evidenceofany sort that Mai wasthe instigator, but Mai’s own wordsin the “put a shut” conversationrefute that conclusion. It was“you” (Watkins) who wanted “me” (Mai) to “put a shut on Khoi.” The instigator was Watkins.” » Thetrial court’s actual reasoning for denying the ineffective- (continued...) -196- 3. Prejudice In the AOB,appellant argued that Watkins’ derelictions prejudiced the defense in four ways. For onething, they produced Khoi Huynh’s false claim of lack of recall at trial, which (1) prevented the defense from directly impeaching Khoi’s claim that appellant was the shooter and (2) undercut the defense claim that the Cheap Boys were framing appellant. In addition, Watkins’ challenged actions caused Watkins himself to fake a memory loss when the defense called him as a witness to impeach Tin Duc Phan, which (3) destroyed his credibility as to his testimony that Tin had admitted that Cheap Boys were framing appellant by testifying against him and(4) cast a pall of suspicion, distrust, and disbelief over the entire defense team. (AOB 313-316.) Asto thefirst of these items, respondent does not deny that Watkins’ misdeeds produced Khoi’s false claim that he had no recall. Nor could respondent reasonably dispute the point, since — as the prosecutortold the trial court— Khoi had been “cooperative for three years”and that it was only at trial that he had “comein and [could] not remember anything about being shot seven times.” (21 RT 3982.) _..continued) assistance claim wasthat “I cannot cometo the conclusion that Watkinsis, in fact, part and parcel ofthat operation”to silence Khoi Huynh. (31 RT 6075.) This reasoning is so plainly at odds with the record that even respondent declines to defend it. Instead, respondent makes the narrower argument discussed in the preceding text, namely, that Watkins did not initiate the operation. And, as we havejust pointed out, respondent’s narrower argument fails (1) because it does not change the conclusion that the deficient- performanceprongofthe Stricklandtest has been met andalso(2) becausethe evidence explicitly shows that Watkins did initiate the scheme and overwhelmsany speculation by respondentto the contrary. -197- Instead, respondent argues that “Khoi’s feigned memory loss on the witness stand did not cripple appellant’s trial counsels’ opportunity to impeach Khoi[’s] identification ofappellant” because the defense wasable to impeach Khoi’s out-of-court identifications ofappellant with the instances in which Khoihadfailed to identify him. (RB 262-263.) But respondent ignores the essence of the prejudice. Because of Khoi’s feigned memory loss, the prosecution was able to have Khoi’s out-of-court identification come before the jury through the polished testimonyofpolice officers rather than through the directly impeachable testimony ofKhoi himself. Moreover, appellant was deprived of the opportunity of having the jury see and evaluate Khoi’s demeanor when making his identification and having the jury hear Khoitry to explain his several failures to identify him. Whencredibility is at issue, the opportunity to see and hear the witness give crucial evidence is of utmost importance, and it was this opportunity that Watkins caused the defense to lose. “[T]Jhe manner of the [witness] while testifying is oftentimes more indicative of the real character of his opinion than his words.” (People v. Stewart (2004) 33 Cal.4th 425, 451, internal quotation marks omitted. See also, e.g., Smith v. Phillips (1982) 455 U.S. 209, 222, conc. opn. ofO’Connor, J. [live testimony permits fact-finder “to observe the [witness’] demeanor under cross-examination and to evaluate his answersin light ofthe particular circumstancesofthe case.”].) With respect to the second form of prejudice, respondentasserts that “Khoi’s feigned memory loss did not undermine the defense claim that Khoi was a major participant in a Cheap Boys scheme to frame appellant in retaliation forNip Family memberstestifying against Cheap Boys.” (RB 263.) According to respondent, the defense wasstill able to rely on the evidencethat -198- after Khoi told Investigator Janet Strong that appellant shot him, Khoi “explained”that he “could nottestify in court regarding the shooting because ofhis association with a gang andthe stigma attached to gang members who testified.” (/bid.) But this “explanation” by Khoi is exactly appellant’s point becauseit is inconsistent with the defense’s frame-up theory. Khoi’s claim of a need to avoid stigma provided a prosecution-favorable explanation for why a gang member would do just what Khoi purported to be doingin court,1.e., refusing to testify against a memberofan opposing gang who had committed a crime. Refusing to testify is the antithesis of participating in a “ratting retaliation” frame-up. Thus, Khoi’s “explanation” to Investigator Strong as to why he would not incriminate appellant in court did not advance the defense theory of a Cheap Boys frame-up. To the contrary, the “explanation” undercutthat theory becauseifthe Cheap Boyshada plan to depart from standard gang norms and to frame appellant by testifying against him (as Tin Duc Phantold Daniel Watkins), then Khoi would not have adhered to gang normsand refused to testify against appellant for the gang-business-as-usual reason he gave Investigator Strong. Respondent’s logic is exactly backwards. Khoi’s “explanation” proves appellant’s point about prejudice, not respondent’s. Respondent also repeats an argument it made in connection with Counts 6 and 7 (the killing of Sang Nguyen),i.e., that the claim ofa frame-up is “preposterous becauseit required jurorsto believe that in orderto retaliate against the Nip Family for ‘ratting’ on Cheap Boys, Khoi protected the person whoreally shot him by falsely accusing appellant of the crime.” (RB 263.) First, however, as pointed out earlier, respondent’s assertion assumesthat Khoi actually did know who had shot him. It is not at all uncommon for shooting victims to have failed to focus on their assailant’s face or, for other -199- reasons,to be unable to identify him, and indeed Khoi himselfhad told police on at least three occasions that he was unable to identify the person who shot him. (See 13 RT 2476-2477, 2505-2506, 23 RT 4469-4470.) Second, it would not have been “preposterous” for the jurors to conclude that Khoi would falsely identify appellant even if he did know appellant was not the shooter. Respondent’s claim of preposterousness is based entirely upon the perspective of someone outside the gang culture. To most non-gang members,it would be “preposterous”that anyone would refuse to cooperate with police when they are themselves the victimsof an attack, and it would be equally “preposterous” that someone would want to commit crimes whenthere are manycivilian witnesses around, yet this is how gang members behave, accordingto the prosecution’s evidence. (See 16 RT 3187- 3188, 3192-3193, 3209.) As a result, no juror would find it “preposterous” that, even ifKhoi knew whoshot him, he would be willing to finger someone else in order to advancehis gang’s interests. Especially is this true since,as respondent admits elsewhere, gang membersdo “not needto retaliate against the same person” whotriggered the desire for retaliation. (RB 62,citing 16 RT 3188-3189.) As for the remaining two forms of prejudice — Item (3) (Watkins’ credibility was undermined with respect to Tin Duc Phan’s prior statement) and Item (4) (cloud wascast over the defense team as a whole) — respondent denies that they materialized, but its denials are entirely conclusory. Respondentoffers no reasoning whatsoever to support its denials. (RB 263- 264.) Thereis nothing for this ARB to replyto. -200- B. If the Judgment Is Not Reversed for Ineffective Assistance of Counsel Due to Watkins’ Derelictions, the Case Must Be Remandedfor a Renewed Motion for New Trial, with New Counsel Appointed to Represent Appellant Appellant has argued that if the judgment is not reversed for the reasons just discussed, then the case must be remanded for an adequate inquiry into whethertrial counsel had a conflict of interest in presenting the new trial motion, with appellant represented by new counselat the hearing. What happened below —- with thetrial court allowing defense counsel to handle the motion without a searching inquiry into potential conflict — was serious error in light of the facts (1) that an attorney cannot be expected to urge his or her own ineffectiveness, (2) that lead counsel Harley had a personal and long-standing professionalrelationship with Watkins,(3)thatat earlier in camera hearings, trial counsel had failed to disclose the fullextent of Watkins’ then-existing legal problems, withholding the fact that Watkins wasthe defendant in two pending misdemeanorcases,(4) that there wasdirect and circumstantial evidence linking attorney Harley to Watkins’ improper endeavors with Mai — both the schemeto “put a shut” on Khoi Huynh and the attemptto kill AlexNguyen— and (5) that the prosecutor dealing with the motion for new trial expressed concern over whether trial counsel was “capable of bringing this type of motion as opposed to some independent counsel taking a lookat it and presenting it.” (AOB 317-320.) Respondent acknowledges that the AOBraised these points (RB 265- 266), but it declines to address any of them. Instead, respondent digresses. Or, perhaps more accurately stated, respondent reformulates appellant’s claim, transforming it into something it isn’t. Rather than addressing whether a remandforfurther inquiry into a conflict is necessary iftrial court has failed to adequately inquire into that possibility, respondent devotesits briefing to -201- arguing about principles that purportedly apply when a defendantasserts that an inadequate inquiry by thetrial court should directly result in a newtrial. Butthat is not appellant’s claim here in this subsection. Appellant is asking for a remand, a chance to establish, with the assistance of unconflicted counsel, that his trial counsel had a conflict and were adversely affected byit in presenting the motion for newtrial. | Principles applicable when a newtrialis directly soughtare necessarily different from those applicable when a remand for mere further inquiry is sought. For example, while respondent maybecorrect that a defendant who directly seeks a newtrial would have to show that his counsel’s performance was adversely affected by a conflict (see Mickens v. Taylor (2002) 535 U.S. 162), it makes no sense that the same showing would be required when what is sought is only a remand for an adequate inquiry into a conflict. For if the defendant did make such a showingofadverse effect, then there would be no need for further inquiry or a remand. A right to a new trial would already have been established. The relevantprinciples for when a remandfor further inquiry is called for are those outlinedin Woodv. Georgia (1981) 450 U.S. 261, the primary authority cited in the AOB butnot mentionedin the RB. A hearingis required when“the possibility of a conflict of interest [is] sufficiently apparentat the time of the [motion for new trial],” i.e., when the record “strongly suggests” that a conflict of interest “actually existed at the time of the [motion] or earlier.” (/d. at pp. 272, 273.) In theinstant case, these principles call for considerationofthe five factors listed at the outset ofthis subsection andthat were discussed in the AOB but that respondent declines to discuss. Those factors “strongly suggest” that a conflict of interest actually existed at or before the time the motion for new trial was brought. And, as the Supreme -202- Court specifically admonished in Wood,“[a]ny doubt as to whether the court should have been aware of the problem is dispelled by the fact that the State raised the conflict problem explicitly and requestedthat the court look intoit.” (Wood, 450 U.S. at pp. 272-273.). -203- VU. OTHER OVERALL GUILT-PHASE ISSUES 1. THETRIAL COURT IMPROPERLY ALLOWED THE PROSECUTION TO INTRODUCE EVIDENCE OF WEAPONS UNCONNECTED TO ANY OF THE CHARGED SHOOTINGS In section VIII.1 of the AOB,appellant has argued that the trial court committed reversible error whenit allowedthe prosecution to admit evidence offour firearms connected to appellant but unconnected to any ofthe charged shootings. (AOB 321-325.) Respondentdisputes appellant’s conclusion,but it barely addresses appellant’s arguments, and it offers only conclusory statements to support its own claims. (See RB 268-271.) Respondent’s contention is that the challenged evidence wasrelevant to showing whether appellant was “an active member of the Nip Family engaged in a deadly war with the Cheap Boys and the Tiny Rascals Gang,” specifically, “an active Nip Family gang memberduring 1994 and 1995 with ready access to guns maintained for the ongoing, deadly gang war between the Nip Family and rival gangs.” (RB 269, 270.) These are respondent’s assertions, but, like the prosecutor below, respondent offers neither case law nor reasoning to support them. The AOB quoted the following passage from People v. Henderson (1976) 58 Cal.App.3d 349: “Neither logic, experience, precedent nor common sense supports the propositionthat, from the possession in one's home of two loaded guns, a reasonable inference may be drawnthat the possessor has an intent to commit the crime of an assault with a deadly weapon. Evidence ofpossession of a weaponnot used in the crime charged against a defendantleads logically only to an inference that defendantis the kind of person who surrounds himself with deadly weapons- a fact of no relevant consequenceto determinationofthe guilt or innocence ofthe -204- defendant... . The inference sought by the prosecution is purely one ofsheer speculation— the antithesis ofrelevancy.” (Id. at p. 360, emphasesin original, citing People v. Riser (1956) 47 Cal.2d 566, 577 and People v. Vaiza (1966) 244 Cal.App.2d 121, 125. See AOB 323.) Respondentdeclines to mention Henderson,let alone the casesit cited. The AOBalso noted that the prosecutor’s reasoning below, which respondentessentially adopts, was a transparent effort to admit “propensity” evidence,a predisposition to resort to “guns .. . for the ongoing, deadly gang war.” Appellant cited People v. Barnwell (2007) 41 Cal.4th 1038, in which this Court had held it was error to admit evidence that, one year before a charged murder, the defendant (a gang member) had possessed a weapon of the same caliber, make, and model as murder weapon but there was “no suggestion that the pistol found [a year earlier] was the weapon involved in this case.” (/d. at pp. 1044, 1056.) This Court held that “such evidence tends to show notthat [the defendant] committed the crime, but only that he is the sort of person who carries deadly weapons.” (/d. at p. 1056.) Respondent contends that Barnwell is irrelevant here because the Barnwellprosecutor had “sought to show defendant{’s] possession of a specific weapon used in the charged crime with evidence that he possessed other weapons” (RB 269), whereas in the present case, the prosecutor sought to show appellant’s “active” membership in the Nip Family gang “with ready access to guns maintained for the ongoing, deadly gang war” (RB 270). There are several flaws in this contention. First of all, if there is a chain of reasoning that might connect possessionofguns with active gang membership and maintaining gunsfor use by gangs, it would be onethat relies on inferencesas to the propensity of the person possessing the guns. After all, none of the gunsat issue in this case -205- wastied to any crime, so the only way they might be connectedto criminality is if gun possession warranted an inference of their owner’s propensity to engage in criminality of somesort. But relying on a propensity inferenceis precisely the forbidden “logic” that was the basis for the Barnwell decision and that underlies the prohibition of Evidence Code section 1101. (See Barnwell, 41 Cal.4th at p.1056 [“evidence that other weapons were found in the defendant’s possession . . . tends to show notthat he committed the crime, but only that he is the sort of person who carries deadly weapons.”].) Second,the “propensity”line ofreasoning doesnot stand upto scrutiny evenif it were allowed (whichit isn’t). As the AOB pointed out, possession of gunsis extremely widespreadin this society. (AOB 323.) Does such gun possession — possession of guns not connected to any crime — have a tendency in reason to indicate that those millions of citizens are “active members”ofgangsorthat they maintain their gunsfor use by gang members? Clearly not, which likely explains why respondent declines to address the point.*° The AOB further argued that if the challenged evidence had any probativevalue,it was substantially outweighedby the evidence’s prejudicial effect. (AOB 324.) Respondent disagrees, saying that the “high probative value ofthe evidence” was “not substantially outweighed by any substantial danger of undue prejudice (Evid. Code, § 352) because it did not uniquely 0 Atleast 40 to 43 percent of American households had gunsin the 1990's, and three-quarters of these had two or more. (See National Institute ofJustice, Guns in America: National Survey on Private Ownership and Use of Firearms (May 1997), pp. 1-2 (viewable at http://www.tsem.com/]65476.pdfasofJan. 23, 2012); Gallup, Americans and Guns: Danger or Defense, http://www.gallup.com/poll/14509/americans-guns-danger-defense.aspx (viewed on Jan. 23, 2012).) -206- tend to evoke an emotional bias against appellant as an individual while bearing little or no relevance to the material issues in the case.” (RB 269- 270.) However, if any probative value could be derived from possession of guns never used in any crime,that value would,for the reasonsjust discussed, be quite low, and on the other side of the scale, the evidence was “highly prejudicial in nature.” (People v. Henderson, supra, 58 Cal.App.3d at p. 360.) The balancetipped heavily against admission.” The AOBfurther argued the trial court’s willingness to allow the prosecution to admit evidence ofguns against appellant was hardto reconcile with its reluctance to admit gun evidence to impeach Kevin Lac. (AOB 325. See AOB 238-247; ARB § III.2, pp. 143 et seq., ante.) Respondent contends that both rulings were permissible “discretionary rulings.” (RB 270.) Respondent supportsits contention by erroneously contending that the Kevin Lac gun evidence wasirrelevant to impeaching Lac, whereas the gun evidence as to appellant was somehowrelevant to show appellant wasparticipating in a gang war. (RB 270. See ARB III.2.A, pp. 143, ante [showing relevance of gun evidence to impeach Lac].) Respondent is wrong as to each category of gun evidence. The trial court’s permitting the introduction of pro- prosecution gun evidence, while excluding such evidence whenit served the defense, reflected a lack ofevenhandedness,inconsistent with due process but consistent with how it handled other matters, such as the alleged discovery 8 In support ofits just-quoted argument, respondent purportsto cite to People v. Felix (1994) 23 Cal.App.4th 263, 285-286. (RB 270.) There is no case with that name andthat citation. Presumably, respondent intends to cite People v. Felix (1994) 23 Cal.App.4th 1385, 1396, but that case, which involved the admission ofevidence of a defendant’s drug addiction, lends no support to respondent’s claim that it was proper to admit the evidence of weaponsnot used in any crimehere. -207- violations. (See AOB 96-111 and ARB § 1.2.A.3, pp. 46 et seq., ante [excluding defense evidence for alleged discovery violation]; AOB 253-268 and ARB IIL.5.B, pp. 158 et seq., ante [refusing to exclude prosecution evidence despite acknowledged discovery violation].) Finally, respondent arguesin conclusory fashionthat ifthere waserror, it “does not warrant reversal given the independent evidence which established [appellant’s] guilt and underminedhis defense.” (RB 271.) But, as we have seen, respondent bases such assertions on its uniformly and excessively pro-prosecution view ofthe evidence. To an objective observer, the evidence against appellant as to each of the offenses of which he was convicted was weak,suspect, or both, as we hopethis briefand the AOBhave madeclear. Moreover, the prosecutorclearly exploited the error nowat issue. She used the improper weaponevidencein precisely the “propensity” mannerthat she had said she would. The guns found at the Amarillo Street residence were, she told the jury, “another piece of evidence for you to consider realizing this is an ongoing war between the two gangs. Theyare both ready for battle at any time. Andtheyare both always heavily armedto be readyfor that battle. And that was the purposeofthe guns cominginto evidence from that address. It was just anotherindication ofthe ongoing war. The constant preparation. Theconstant readinessto kill.” (27 RT 5208-5209.) In such situations, reversal is required under both the Chapman and Watsontests. -208- 2. APPELLANT’S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE TRIAL COURT ALLOWED THE PROSECUTION TO INTRODUCE STATEMENTS APPELLANT MADE DURING HIS MAY 25, 1995, INTERROGATION AFTER HE HAD REPEATEDLY ASSERTED HIS RIGHT TO COUNSEL The AOBhasargued that the trial court committed multiple errors whenit permitted the prosecution to introduce, as impeachment ofappellant’s testimony, certain improperly obtained statements that appellant had madeto Detective Nye on May 25, 1995. The AOBarguedfirst that, notwithstanding Harris v. New York (1971) 402 U.S. 222, and Oregon v. Hass (1975) 420 U.S. 714, those statements were inadmissible even on rebuttal because (1) they were obtainedin deliberate, systematic, and officially sanctioned violation of Miranda after appellant had repeatedly invoked his right to counsel and (2) they were involuntary. (AOB 326-337.) The AOB further argued(3)that if those statements were admissible, then the trial court erred by failing sua sponteto limit the jury’s use ofthose statements to impeachment. (AOB 337- 339.) Finally, the AOB argued(4)that ifthis Court should concludethat there is insufficient evidence to sustain the foregoing claims, it would have to reverse and remand for a further hearing because full development of the record wasobstructed by the prosecutor’s flurry ofmeritless objections, most of which were erroneously sustained. (AOB 340.) Respondent, naturally, disagrees with all of this. (RB 271-285.) A, The Illegally Acquired Statements Were Inadmissible for Any Purpose, Given Miranda and Its Progeny There are two separate reasons why, notwithstanding Harris v. New York and Oregon v. Hass, the principles ofMiranda and its progeny preclude the admission, as impeachmentevidence,ofthe statements that DetectiveNye -209- illegally obtained from appellant. For one thing, exclusionis called for by the fact, undisputed by respondent, that Nye obtained the statements by knowingly and deliberately continuing to question appellant in violation of clearly established Miranda principles. Appellant has acknowledgedthatthis Court ruled against him on this point in People v. Peevy (1998) 17 Cal.4th 1184, and since respondent does not address the matterin its brief, there is nothing further for the instant ARB to say on this score other than to request again that this aspect of Peevy be overruled as inconsistent with Supreme Court precedent. (See AOB 335 fn. 191 and accompanyingtext.) The secondreason that Mirandaetal. require that the illegally obtained statements not be admitted on rebuttal — the reason that was discussed in more depth in the AOB — is that the Miranda violation was not merely knowingly anddeliberately committed by Detective Nye but wasthe product ofofficially sanctioned Police Departmenttraining by the District Attorney’s Office, which taught officers to ignore suspects’s invocations of their Miranda rights for the very purpose of securing impeachment evidence. (AOB 331-335.) As explained in the AOB,this line of attack on the admission ofappellant’s statementsis not precluded by Peevy. Indeed, Peevy supports the challenge, as does the Supreme Court’s decision in Missouriv. Seibert (2004) 542 U.S. 600, for reasons discussed in detail in the AOB. Respondenttakesthe positionthatillegally obtained statements may be used as impeachmentregardless of the systematic or official nature of the illegality. Its contention is that notwithstanding police or governmentpolicy encouraging Miranda violations, “the goal ofpolice deterrence is outweighed by the specter ofuncontested perjury that would result from the exclusion of voluntary prior inconsistent statements offered for the purpose of impeachment.” ‘(RB 274. See also RB 275, 285.) In advancing this -210- contention, however, respondent never once mentions, let alone deals with, Peevy or Seibert. That omission speaks volumes about the soundness of respondent’s contention. Moreover, the blinkered argument that respondent does offer is unavailing becauseit begs the question. It may be true that when “the goal of police deterrence”is generally met, then pursuant to Harris v. New York and Oregon v. Hass, the balance favors allowing the use ofillegally obtained statements as rebuttal. In that situation, there is a deterrent effect produced by the threat of excluding the statements from the prosecution’s case-in-chief, and the added deterrence that would comefrom excluding the statements for impeachment is outweighed by the need to bring out prior inconsistent statements. Butin the presentcase, one ofthe premisesfor this balancing operation is entirely different. For there is no “police deterrence”at all when officers are instructed throughofficial training andpolicyto illegally ignore suspects’s invocations of Mirandarights for the purpose of obtaining statements that may be used for impeachment. In this context, the weightiness of the deterrence side of the balance is substantially greater than in the Harris and Hass settings. Indeed, now the interest in deterrence is fully as weighty asit wasin Miranda itself. When weight is increased on oneside of a balancescale, it is simply wrongto ignore that fact and contend, as respondent does,that the balanceis the same as whenthefar lesser weight was present. Or, put another way,it is wrong for respondentto argue that the weighing processthat Harris and Hass undertook on the premise that excluding illegal statements from the prosecution’s case-in-chiefwould have a deterrent effect is the same weighing processthat takes place when the premise is shown to be non-existent. (See -211- Missouri v. Seibert, 542 U.S. at 618-619 (conc. opn. of Kennedy, J.) [exceptions to Miranda are allowed only when “the central concerns of Mirandaare notlikely to be implicated,” and a central concern was “‘the general goal of deterring improper police conduct.’”], quoting Oregon v. Elstad (1985) 470 U.S. 298, 308.) B. The Statements Were Inadmissible Because Involuntary The admission ofappellant’s statements on rebuttal was also erroneous because the statements were involuntary. They were involuntary because, by first honoring appellant’s invocation ofhis right to counsel and then resuming the questioning with the explanationthat although appellant had asked for an attorney, nevertheless “[w]e just have to get some other things clear,” Detective Nye wastelling appellant that his right to counsel did not apply to the questions he was aboutto ask, that appellant had no right not to make “other things clear.” (AOB 335-337. See 9/29/06 Supp.CT 1250) Respondent contends, first, that this issue is forfeited “because [appellant] never contended in the trial court that his statements were involuntary.” (RB 275.) With due respect, respondent’s contentionis far off base. Thetrial court’s very language as quoted in the RB showsthat the court admitted the challenged statementbecause,in part, it “didn’t see anythingthat was overbearing in terms of [the interrogating officers’] conduct or the way that they handledor processed the accused.” (22 RT 4129,quoted at RB 272.) The court’s invocation ofthe conceptof“overbearing” and its conclusion that the statements were “not involuntary” showthat it understoodit was ruling on voluntariness. (See also 22 RT 4133 [concludingthat appellant’s “statements are not involuntary”].) Indeed, respondentuses the exact same “overbearing” languageitselfwhenit argues that the statements were not involuntary. (See RB 276 [statements not involuntary because no “overbearing” of — and -212- nothing showingthat detectives “overbore”— appellant’s will].) There is no forfeiture. (See, e.g., People v. Brown (2003) 31 Cal.4th 518, 534 [“issue is properly before us” where “trial court spoke as if it were deciding the question’”’].) Moreover, as respondent stated just before its claim of forfeiture, Harris allowed the admission of “voluntary prior inconsistent statements offered for the purpose of impeachment.” (RB 274. See also RB 273 [similar], 275 [twice, similar].) Under respondent’s own arguments, voluntariness is an element of a ruling allowing the useofillegally obtained statements on rebuttal.*” That appellant’s statements were involuntary is shownbythefact that they were madein response to Detective Nye resumingthe interrogation and telling appellant that, notwithstanding his invocation ofhis right to counsel, “Twle just have to get some other things clear,” which effectively told appellant that he had no right to refuse to answer what Nye wasabout to ask him. (See 9/29/06 Supp.CT 1250.) Respondent’s answeris to assert that “the detectives did not affirmatively mislead appellant by making him anyfalse promises or bytelling appellant his statements could not be used in court.” (RB 279.) But this is a hypertechnical non-answer. Respondent does not categorically deny that the detectives “affirmatively misled” appellant. 8 Respondent cites People v. Marks (2003) 31 Cal.4th 197, 228-229,in support of its claim offorfeiture. The issue in Marks was whether a defendant could argue on appeal that two of the prior convictions used to impeachhis testimony did not involve moral turpitude. This Court found these contentions forfeited because the defendant had brought no challenge at all against the use of one of the prior convictions and had conceded below that the second conviction did involve moral turpitude. Nothing in Marks is relevant here. -213- Rather, respondent’s contention is that the detectives did not affirmatively mislead him in either oftwo specific ways: they did not mislead him by the device of“making false promises,”andthey did not mislead him bythe device of “telling appellant his statements could not be used in court.” Respondent is correct that neither of these devices was used, but (1) the AOB never claimed they were and (2) so what? The underlying governingprincipleis whether the challenged statements were the productof a “deliberate police violation of Miranda coupled with a misrepresentation.” (People v. Bey (1993) 21 Cal.App.4th 1623, 1628.) It has long been clear that misrepresentationsother than the twospecific types noted by respondentwill render a statement involuntary. (See, e.g., Lynumnv.Illinois (1963) 372 U.S. 528 [misrepresentation bypolice officers that a suspect would be deprived of state financial aid for her dependent child if she failed to cooperate with authorities rendered the subsequent confession involuntary]; Spano v. New York (1959) 360 U.S. 315 [misrepresentation by the suspect's friend that the friend wouldlose his job as a police officer if the suspect failed to cooperate rendered his statement involuntary].) Respondent does not deny that what Detective Nye told appellant — that “[w]e just have to get some other things clear” — was misleading in a waythat directly bore on voluntariness — it told appellant he had no choice but to answer— and respondenttacitly admits there was a “deliberate police violation of Miranda’ here. In light of these undisputed and indisputable facts, appellant’s statements were “coerced and involuntary.” (People v. Bey, supra, 21 Cal.App.4th at p. 1628.) Nothing in the RB undermines that conclusion in the least. -214- Appellant has pointed out thatthe trial court misunderstoodthe record. The court said that appellant invoked his right to an attorney in response to being asked abouthis association with the Nip Family, whenin fact appellant had invokedhis rights three times before he was asked about this matter. (AOB 330,citing 22 RT 4129). The AOBfurther pointed out, in a footnote, that a consequenceofthis misunderstandingis that no deferenceis to be given to the trial court’s factual findings. (AOB 331 fn. 190, citing People v Cluff (2001) 87 Cal.App.4th 991, 998, Johns v. City of Los Angeles (1978) 78 Cal.App.3d 983, and Stack v. Stack (1961) 189 Cal.App.2d 357, 368.) Respondent does not denythat the trial court made a “misstatement,” but it states that the trial court “did not rely on the alleged misstatements and omission”andtherefore “the trial court’s determination [that the statements were voluntary] is entitled to deference regardless ofthe cited misstatements and omission so long as substantial evidence supports the determination.” Respondent asserts that People v. Carmony (2004) 33 Cal.4th 367, 379, distinguished People v. Cluff“on this ground.” (RB 280.) Contrary to respondent’s arguments, however, (1) this Court independently reviewsa trial court’s determination regarding voluntariness and defers only to a trial court’sfactual findings and only ifthose findings are supported by substantial evidence (People v. Guerra (2006) 37 Cal.4th 1067, 1093); (2) Carmony did not distinguish Cluff on the ground proposed by respondent, nor does respondent address Johns or Stack, the other two cases cited in the AOB;(3) if, as respondent claims,the trial court did not rely on the actual numberoftimes appellant had invokedhis rights, that would itself be error because repeated refusals to honor a defendant’s rights are relevant to, and indicative of, involuntariness (see People v. Neal (2003) 31 Cal.4th 63, -215- 80, 82), and in any event(4)there is no factual finding that respondentpoints to as warranting deference with respect to the question of involuntariness.” Cc. The Trial Court Violated Miranda By Failing To Limit The Jury’s Use Of Appellant’s Statements To Impeachment Purposes The AOB argued that even assuming that appellant’s May 25, 1995 statements were admissible as rebuttal evidence for purposes ofimpeachment, the trial court erred by failing sua sponte to limit the jury’s use of the statements to impeachment only. (AOB 337-339.) Respondent contends, first, that this claim is forfeited becausetrial counsel“fail[ed] to request modification ofthetrial court’s prior inconsistent statement instruction and [failed] to request a special limiting instruction.” (RB 281.) This contention is inapplicable to a claim that the trial court has a sua sponte duty to instruct. A duty to instruct sua sponte is, by definition, a duty that exists even in the absence of a request. (See People v. Padilla 8 Respondentasserts that appellant“has himselfmisconstrued the transcript of the videotaped interview” because “appellant only invoked his right to counsel twice” before the detectives asked him about his gang affiliation, and notthree times, as the AOB stated. While the pointis hardly dispositive, respondentis not correct. The disagreement depends upon what occurred before the detectives “terminat[ed] the initial portion of the interview.” (RB 280, citing 9/29/06 Supp.CT 1249.) The AOBsaid that appellant had invoked his right to counsel twice beforetheinitial termination, and the RB claimshe invoked only once. The AOBaccurately laid out the colloquy. After appellant indicated he understood his rights and wastold by a detective that “We wanna ask you a few questions,” appellant replied, “Think I got to talk to my attorney.” (9/29/06 Supp.CT 1249.) That was the first invocation. Then, the detective asked, “You want to talk to your attorney?”and appellantreplied, “Yeah. If] have one. Ifthey give me one.” (Ibid.) That was the secondinvocation. (The third invocation came after the questioning was renewed, just before appellant was asked about Nip Family membership. See 9/26/09 Supp.CT 1250.) -216- (1995) 11 Cal.4th 891, 971 [no objection needed whenclaim is that there was sua sponte duty to instruct].)* Respondentcites this Court’s decisions in People v. Coffman (2004) 34 Cal.4th 1, 63, and People v. Gutierrez (2002) 28 Cal.4th 1083, 1134, as establishing that there was noinstructional error. However,neither Gutierrez or Coffman involvedillegally acquired post-Miranda statements that were used to prove an element of a charge in an information, as was donehere. D. The Errors Require Reversal of All Counts; If Not, the Gang Crimes and Enhancements Must Be Reversed Appellant has argued in the AOB that as a result of any of the foregoing errors, reversal is required of the gang crimes and enhancements, and ofall substantive offenses, as well. (AOB 339.) Respondent argues to the contrary. According to respondent, appellant’s trial testimony that he “had never been” a memberof the Nip Family was “thoroughly impeached”and “unbelievable” and “cumulated appellant’s previous admissions” without resort to the illegally obtained statements and therefore any errorwas harmless beyond a reasonable doubt. (RB 282, 284.) Twopreliminary points. First, the question to be decided is “whether the State has met its burden ofdemonstrating [beyond a reasonable doubt] that the admission ofthe[illegally obtained statement] did not contribute to [the defendant’s] conviction.” (Arizona v. Fulminante (1991) 499 U.S. 279, 296, citing Chapmanv. California, 386 U.S.at p. 26.) a Respondent cites People v. Williams (2000) 79 Cal.App.4th 1157, 1170, in support of its claim of forfeiture, but Williams involved a defendant’s failure to ask for a modification ofan instruction given. Williams did not hold that a defendant could not raise for the first time on appeal a claim that a trial court had a sua sponte duty to give an instruction. -217- Second,the question ofwhetheror not appellant “had ever been” aNip Family memberwasnotan ultimate issue at trial. Gang membership was not required in order for the prosecution to establish either the substantive gang offense (§ 186.22(a)) or the gang-benefit enhancement (§186.22(b)). However, a finding of contemporaneous gang membership would be highly probative of (1) whether appellant was “actively participat[ing]” in the gang at the time of the charged offenses (§ 186.22(a)) and (2) whether he committed the charged offenses “for the benefit of” the gang (§186.22(b)). (27 RT 5287, 5290.) Moreover,if appellant claimed he “had never been” a Nip Family memberandifthe jury found that claim to be false, then the jury wasentitled to disbelieve appellant’s entire testimony. (27 RT 5248-5249.) Thus, the question on appeal is whether the State can prove beyond a reasonable doubt that the improperly admitted evidence did not contributeto such findings by the jury. This requires an assessment of whether the improperly admitted evidence was“unimportantin relation to everything else the jury considered on the issue in question, as revealed in the record.”” (People v. Flood (1998) 18 Cal.4th 470, 494, quoting Yates v. Evatt (1991) 500 U.S. 391, 403.) In presenting its arguments that the error was harmless, respondent does not deal with “everything else the jury considered on the issue in question.” Rather, respondentagain focuses entirely upon evidenceit believes is favorable to the prosecution,andit disregardsall evidence to the contrary. But if account is taken of “everything the jury considered,” then one finds considerably less in the cited prosecution-favorable evidence than respondent believes and considerable weight to contrary evidence. Respondentpoints to several items of evidencethat it claims shows appellant’s gang membership so overwhelminglyas to “thoroughly impeach” -218- appellant’s claim that he was not a gang member. But appellant explained the most significant-seeming of these items when hetestified. As the AOB pointed out, appellanttestified that he knew many Nip Family gang members (21 RT 4066), including his two best friends, whom he had knownsince childhood (Huy Pham and John Cho) and whohad joined the Nip Family (21 RT 4057-4058, 22 RT 4151, 4153, 4155, 4193-4194),as had other friends and acquaintancesfrom elementary and high school (21 RT 4011, 4059-4060, 22 RT 4143-4144, 4145). Until his arrest in 1992, appellant hung around with Nip Family members and engaged in social activities with them, such as picnicking and partying (21 RT 4011-4012, 4056, 4066-67, 22 RT 4198). However, appellant did not consider himself a memberof the gang. (21 RT 4067.) He had neverjoined the gang or been “jumped into”or initiated into it. (21 RT 4011, 22 RT 4140, 4158.) Appellant acknowledged he had told law enforcementofficers that he had been with Nip Family, but he did this because the police insisted he was a memberand told him that if he hung out with the gang, he was a gang member. (21 RT 4071, 22 RT 4142, 4157, 4195-4198.) “T say I kick back with them in sophomoreyear, and I did get arrested with them and | wasin the group with them. So, they did put me down I was a member, and I do admit like I am a memberat that time because I was hanging with them. But they never jumped mein. I never walk in. I don’t have notattoo of Nip Family. And I don’t represent myself as a gang member. And I don’t havein that picture, two pictures you show mein the gang picture group [Exhs. 135, 136] there was no — none of my picture in it. And if you could find out, I know you could, that you could never find a picture like with me in a group like that throwing sign or anythinglike that.” -219- (22 RT 4140.)* Appellant also acknowledgedthat whenhe pleaded guilty to assault in 1992, he had admitted the offense was done in association with a criminal street gang and with specific intent to assist criminal conduct by gang members. (21 RT 4068.) But, as we pointed out several paragraphs ago, such an admission does not include an admission of gang membership.** Appellant’s testimony thus accounted for most of the items that respondent points to as purportedly conclusive proof of gang membership: that Detective Nye “met appellant in 1990 in the company of other active membersof the Nip Family,” that appellant admitted the section 186.22(b) gang enhancement in 1992, that “[w]Jhen Nyelater visited appellant at his house, appellant claimed gang membership by admitting he waspart of the gang,”and thatat trial appellant “acknowledged knowingten to fifteen gang members” and “identified the photographs of many more.” (RB 282, 283- 284.) Not only are some of these items remote in time from the charged offenses, but appellant’s testimony explained how they were consistent with 8 To similar effect: “Like I mean like they [i.e., Nip Family membersare] myfriend and I go out with them, and go picnic and party and stuff like that. But I’m not like gang andstufflike that. Because I don’t join a gang and I never beenjumpedin the gang, so I wouldn’t consider myself— I mean I associate with them so like if they call me gang member,I don’t know what— solike if I hang with them,ifthey call me gang member, so — so I guess I’m a gang member. But I don’t consider myselfa gang member.” (21 RT 4066-4067.) 8 Appellant’s testimony about this admission showshis lack of legal sophistication on the point: “Like I said, I’m not a gang member. So I associate with them, and I did sign that paper, and I was in the car so they charge me as gang member. So I admit I was a gang member,but I don’t go aroundlike in group and maketrouble.” (21 RT 4070-4071.) -220- his claim of not being a gang member. In its prejudice analysis, respondent simply assumes,ipse dixit, that appellant’s explanation was disbelieved bythe jury without resort to the improperly admitted evidence, an assumption that is at odds with commonsense. In fact, appellant’s claim that he was not a gang memberwasactually supported by objective factors. He had no gangtattoos, he was neither in possession of nor otherwise tied to any gang paraphernalia, and he did not appear in even one photograph ofNip Family members. These uncontested facts should have caused the jury to credit appellant’s explanation for the evidence respondentrelies on, and likely would have but for the improperly admitted evidence. It is not possible to conclude, beyond a reasonable doubt, that the error did not contribute to the verdicts. “An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot... be conceived of as harmless.” (Chapman v. California, 396 U.S. at pp. 23-24.)°*’ 87 The remaining factors respondentrelies on have low probative value,ifany, on the issue ofprejudice. (RB 282-284.) It is true, for example, that Detective Nyetestified that “information” imparted to him from members of the Nip Family andtheirrivals, confidential informants, and other police investigators was that appellant was with Nip Family (see 16 RT 3202), but this was undated and unsupported hearsay. The same is true of Nye’s testimony that Monica Tran told him appellant was from the Nip Family; Monica was merely repeating what she had heard from unspecified friends. (10 RT 2028). And even if respondent were correct that Khoi Huynh identified appellant as a gang member— Nye’s testimony onthe point is not free from ambiguity (see 13 RT 2485) — Khoi’s credibility was, to put it mildly, subject to doubt. (With due respect, appellant does not understand the relevance ofthe rest of the items of evidence respondent mentions, 1.e., the handgunin the glove box ofHuy Pham’scar, the guns at the Amarillo Street residence, and appellant’s testimonythat Tiny gave him the handgunafter the (continued...) -221- E. Appellant Was Unconstitutionally Precluded from Fully Developing the Record on The Current Issue In the AOB,appellant has argued that if this Court were to conclude that the record in this case does not contain sufficient evidence to sustain appellant’s Miranda and involuntariness claims, it would have to reverse and remand becausethe prosecutor impeded the full development of the record by interposing a barrage of meritless objections, eight of which were improperly sustained. (AOB 340; see 22 RT 4111-4116.) Respondent asserts, in conclusory fashion,thatthe trial court “did not abuseits discretion” in sustaining the prosecutor’s objections, but respondent makesnoeffort to supports its assertion. (RB 285.) For example: ° Whatwas “vague” about asking Detective Nye whether he had “been trained on what to do when [suspects] say they want to talk to an attorney”? (22 RT 4111.) ° What was “vague” — and what“facts not in evidence” were assumed— by then asking “what have you been taught to do” whena suspect says he wantsto talk to an attorney? (/bid.) On examination of an adverse witness, a question that assumes facts not in evidence would be one that is “misleading and unfair in putting unintended wordsinto the witness’ mouth, and in bringing before the jury facts that cannot be proved.” (3 Witkin, Cal. Evid. 4th (2000) Presentation, § 172, p. 235.) The question to which the prosecutor’s objection was sustained 87(_..continued) shooting of Tuan Pham.) 88 Upon recount, it appears that the prosecutor interposed 13 objections in these 6 pages of the Reporter’s Transcript. -222- presented noneofthese problems, not to mention thatthetrier - offact here was a judge, who would presumably not have been misled or induced to consider unprovenfacts. ° What was “vague” or “compound” — and what “facts not in evidence” were “assume[d]” — when Nye was next asked, “Generally what are you taught to do when a suspect invokes a right to an attorney”? (22 RT 4111-4112.) Respondentoffers nothing to justify these rulings or any others. Respondentalso argues that defense counselactually did find out “the extent ofDetective Nye’s training regardingthe interrogation ofsuspects who have invoked the[ir] Miranda rights” and that his training did not matter because statements obtained by an officer systematically trained by his department and the district attorney’s office to improperly disregard invocations of Mirandaare per se admissible as long as the statements were voluntary. (RB 285.) By these arguments, respondent appears to be acknowledging that, for purposes of the Miranda and involuntariness issues raised in the AOB, the record is adequate to establish that appellant’s statements were obtained by Nye in deliberate, systematic, and officially sanctioned violation of Miranda after appellant had invoked his right to counsel. If that is what respondent is acknowledging, then respondent is correct — the present issue about inability to develop the record disappears, leaving only the questions of whether statements obtained under such circumstances may be admitted as impeachment. (See Subsections A and B, ante.) If respondent is saying something else, appellant is unable to apprehend what it mightbe. -223- 3. REVERSAL OF ALL COUNTSISREQUIRED BECAUSE OF THE PREVIOUSLYDISCUSSED ERRORSARISING FROMTHE REBUTTALTESTIMONYOFPROBATION OFFICER STEVEN SENTMAN In the AOB, appellant has argued that the errors that arose in connection with the prosecution’s decision to call Probation Officer Steven - Sentmanas a rebuttal witness require reversal of all of the counts of which appellant was convicted, because the errors adversely affected the jury’s assessmentofappellant’s credibility as a witness. (AOB 341. See also AOB 253-268, ARB IIL.5, pp. 156 et seq., ante.) Respondent summarily contends that appellant’s argumentis meritless for the reasonsit set forth earlier. (RB 285-286.) Because respondent adds nothing newhere, there is nothing for this ARB to reply to. 4. REVERSAL OF ALL COUNTS IS REQUIRED BECAUSE OF THE PREVIOUSLY DISCUSSED ERRORS RELATED TO THE ADMISSION OF THE PREJUDICIAL HEARSAY EVIDENCE RELAYED BY TRIEU BINH NGUYEN Similarly, appellant argued in the AOB that the errorsrelated to the trial court’s decision to permitthe prosecutiontoelicit hearsay evidence from witness Trieu Binh Nguyen require reversalof all counts. (AOB 342. See also AOB 115-117, 121-122, 252, 279, 287; ARBS§§ 1.3.B, pp. 65 et seq.; IIL.4, p. 154; IV.3, p. 180; V.2, p. 188, ante.) As with the preceding subsection, respondent summarily contends that appellant’s argument is meritless for the reasons it set forth earlier. (RB 286.) As before, there is nothing for this ARB to reply to. -224- 5. SHOULD APPELLANT BE DEEMED TO HAVE FORFEITED ANY ARGUMENTS OR ISSUES SET FORTH IN THIS APPEAL AS A RESULT OF ACTS OR OMISSIONS BY HIS TRIAL COUNSEL, THEN APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL The AOB also argued that if this Court were to conclude that appellant’s trial counsel failed to preserve any of appellant’s arguments or issues for review on appeal, or if it were to concludethat any ofthe objections or arguments by counsel wasinsufficient to allow the claim(s)to be raised on appeal, then appellant was denied the effective assistance of counsel. (AOB 343. See also AOB 121-122, ARB § 1.4, pp. 69 et seq., ante.) Respondent contendsthat appellant cannotestablish deficient performanceand prejudice, but it does not offer any justification for trial counsel having failed to object to the matters that respondent has claimedare forfeited, and respondent does not offer any further argument aboutprejudice, presumably relying upon what it had said in connection with the purportedly forfeited claims. (RB 286-287.) Thereis, thus, nothing to which this ARB canreply. 6. IF REVERSAL OF THE JUDGMENT OR ANY PARTS THEREOF JS NOT REQUIRED BY ANY OF THE PRECEDING CLAIMS INDIVIDUALLY, REVERSAL WOULD BE REQUIRED BECAUSE OF THE CUMULATIVE PREJUDICE OF THE ERRORS The AOBfurther argued that cumulative prejudice from all of the errors in this case would require reversal of the entire judgment, even if no individual issue or other combination of issues did. (AOB 344-349.) Respondent contends that if there was more than one error, they were cumulatively harmless. (RB 287.) Respondent’s contention, however, is -225- entirely conclusory, with no reasoningor explanation provided beyondits bare assertion. Once again, there is nothing for this ARB to reply to. 7. CLAIMS OF INSUFFICIENT EVIDENCE MUST BE ADDRESSED ON APPEAL EVEN WHEN THE JUDGMENTIS REVERSED FOR OTHER REASONS Finally, appellant argued in the AOBthathis claims ofinsufficient evidence must addressed on appealevenifthe judgment is reversed for other reasons. (AOB 350.) Respondent does not mention the point. Under these circumstances, there is nothing else to say in this ARB. -226- ISSUES RELATED TO THE STATE’S INVOCATION OF THE DEATH PENALTY IX. ISSUES ARISING DURING JURY SELECTION 1. THE TRIAL COURT UNCONSTITUTIONALLY PRECLUDED THE DEFENSE FROM DETERMINING WHETHER JURORS WOULD BE PREVENTED FROM VOTING FOR LIFE WITHOUT PAROLE, OR SUBSTANTIALLY IMPAIRED IN THEIR ABILITY TO DO SO, IF THEY FOUND APPELLANT GUILTY OF TWO ORTHREE MURDERS UNDERTHE MULTIPLE- MURDER SPECIAL CIRCUMSTANCE In the AOB, appellant has arguedthat the trial court impermissibly restricted voir dire inquiry into the question of whether prospective jurors would be prevented or substantially impairedin their ability to return a verdict of life without parole ifthey found appellant guilty ofmore than one murder. (AOB 354-372.) There do not appear to be any disputes between appellant and respondent as to the applicable legal principles. The ultimate question is whether the trial court allowed voir dire that was “specific enough to determine”if the jurors harbored such disqualifying views with respect to multiple murders, or whether the voir dire was “so abstract that it fail[ed] to identify” such jurors. (People v. Cash (2002) 28 Cal.4th 703, 720; People v. Zambrano (2007) 41 Cal.4th 1082, 1121.) The AOB arguedthat because of the trial court’s rulings, the truncated voir dire at appellant’s trial was obscure, abstract, and unfocused and generally failed to identify prospectivejurors who harbored a disqualifying bias because of the multiple-murder aspect of the case. -227- Respondent’s position is that the trial court “only limited death-qualification voir dire that sought penalty phase prejudgment by prospectivejurors”andthatthis limitation was triggered by defense counsel’s improper questioningofprospectivejurors. (RB 289. See also RB 296,298.) Respondentis correct that the reason the trial court gave for imposing its limitations was to avoid having prospective jurors prejudge their penalty verdict, but (1) respondent is wrong that defense counsel precipitated that limitation and(2) the trial court’s rulings wentfarbeyond any reasonable view of what impermissible “prejudgment”entails. A. Defense Counsel Did Not Trigger the Court’s Limitation on Inquiry into the Multiple-Murder Aspect of the Case The trial court’s limitation on voir dire began, not with defense counsel’s questioning ofjurors, but near the outsetoftrial proceedings, with its rulings on the juror questionnaires. As the AOBpointed out, the defense proposed a questionnaire that soughtto elicit, among otherthings,“Attitudes Regardingthe Death Penalty.” (2 CT 521.) Ofparticular relevancehere,the defense questionnaire explained that “[i]f a penalty phase is requiredin this case it will be because the defendant has been found guilty beyond a reasonable doubt of more than one offense of murder in the first or second degree,” andthenit asked, “With these convictions and special circumstance findings in mind, do you have such a conscientious opinion concerningthe death penalty that, regardless ofthe evidence that might be developed during both phasesofthe trial, you would automatically vote for the death penalty and underno circumstancesvoteforaverdictoflife imprisonment withoutthe possibility of parole?” (2 CT 525, 526.) Immediately thereafter, it asked whether there was “anything about the nature of the convictions and special -228- circumstancefindings in this case that would impact your ability to be an impartial juror.” (2 CT 526.) These questions wereclear and direct, and they focused the prospective jurors on the multiple-murderaspectofthe case (“with these convictions and special circumstance findings in mind”and “anything aboutthe nature ofthe convictions and special circumstance findings in this case”). And then, tracking plain language that has long been approved by this Court,” they targeted prospective jurors who would notbe fair and impartial at the penalty phase due to the multiple-murder nature ofthe case.” Despite the plain, simple, and proper nature of the defense questions, the trial court refused to accept them. It announcedthat it had “made some changes or... deleted some questions”in the defense questionnaire andthat “the most drastic” changes were in the section entitled “Attitudes Regarding the Death Penalty,”andit directed defense counsel to “copy... verbatim”the changesit had made. (2 RT 360, 362.) Insofar as is now relevant, the trial court eliminated from the questionnaireall references to the multiple-murdernature ofthe case. In place of the defense questions, the court’s questionnaire merely asked the prospective juror to assume that the defendant had been “found guilty offirst degree murder and... . one or more[sic] of the special circumstances” and 8 See, e.g., People v. Avila (2006) 38 Cal.4th 491, 527 et sequitur and footnote 23 (question 99). 7 If the questions had a shortcoming, it was that their reach was underinclusivein identifying the impermissibly pro-death jurors, because the questions targeted only jurors who would “automatically vote for the death penalty” and did not seek to identify those jurors whoseability to consider a life sentence was “substantially impaired.” But the questions were merely preliminary ones, and in any event, that possible shortcoming was not of concern to the court or, obviously, the prosecutor. -229- then asked if the juror would automatically refuse to vote in favor of life without parole. (7 RT 1857.) However, the questionnaire never told the prospective jurors what the special circumstance in this case was. The questionnaire gave examples of special circumstances, but, unbeknownst to thejurors, those examples wereentirely irrelevant to the case (felony murder, killing of peace officer). And while the questionnaire did contain a general definition of“special circumstance,”that definition was comprised ofvirtually incomprehensible or meaningless language. Moreover, the questionnaire repeatedly led the jurors to believe that there was more than one “special circumstance”in the case, which ofcourse was not true. (See AOB 358-360.) Consequently, when the court’s questionnaire asked the prospective jurors whether they harbored any views that would cause them to automatically vote for death, the question did not focus the jurors on the multiple-murder nature of the case. The questionnaire thus did nothing to enable the court or the parties to identify jurors who would be prevented or substantially impaired in their ability to return a verdictoflife without parole if they found appellant guilty of more than one murder. From the outset of the case, then, and long before defense counsel asked any questionson voirdire, the trial court made its views clear as to what constituted impermissible “prejudgment.” Asthetrial court’s modifications to the defense questionnaire indicate, merely asking the prospective jurors whetherthe multiple-murdernatureofthe case would preventor substantially impair their ability to impose a sentence less than death was, to the court, equivalent to asking them to prejudge their penalty-phase verdict. That reasoning is obviously flawed, and it cannot be squared with this Court’s holdings that “[m]ultiple murder falls into the category of aggravating or mitigating circumstances‘likely to be of great significance to prospective -230- jurors”! and thus that inquiry must be allowedthat is “specific enough to determine”if the jurors harbored such disqualifying views.” B. The Trial Court Laid Down the Law at the Ensuing Proceedings The gap in the court’s questionnaire would not have been a problem if the subsequent oral voir dire could have been usedto fill in the gap, but it couldn’t. This was because, as the trial court explicitly informed counsel, “[w]hen we talked about what questionsare put in the questionnaire and what not to, I was makingcertain rulings about the admissibility ofasking questions of the jurors.” (5 RT 626.) It should comeasnosurprise, then, that the oral voir dire was conducted consistently with the trial court’s views about “prejudgment.” The court did not itself ask any question designed to get at whether two or three murder convictions might prevent or substantially impair the prospective jurors’ ability to return a verdict oflife without parole at the penalty phase, and when defense counsel did, the court interrupted and told him to moveto “a different area.” (4 RT 731. See also 4 RT 733.) Respondent contendsthat the real problem wasthat counsel’s questions impermissibly sought “penalty phase prejudgments” (RB 296), but this contention has two problems. First, what was impermissible about asking a juror whether she felt that, after having “convicted [a defendant] of two separate first-degree murders,” she “would be leaning towardsthe imposition 1 People v. Vieira (2005) 35 Cal.4th 264, 286, quoting Peoplev. Cash, 28 Cal.4th at page 721. Accord People v. Carasi (2008) 44 Cal.4th 1263, 1287. ” People v. Cash, 28 Cal.4th at pages 720, 721. Accord,e.g., People v. Carasi, 44 Cal.4th at page 1286 (quoting Cash); People v. Zambrano, 41 Cal.4th at page 1120 (the death qualification process “must probe‘prospective jurors’ death penalty views as applied to the general facts of the case... .’”), quoting People v. Earp (1999) 20 Cal.4th 826, 853. -231- of death’? (4 RT 731 [juror 97]; see RB 296.) That was a preliminary (though obviously not sufficient) inquiry into the question ofbias related to the multiple-murder aspect ofthe case. Equally difficult to understandis the impropriety ofasking a juror— whohasalreadyidentified herself as a death penalty supporter — whether she would “lean one way or another” based upon “the charges, that there are three separate murder counts... .” (4 RT 733 [juror no. 214].) Yet these are the questionsthat the trial court refused to allow to be answered, interrupting and directing counsel to “get into a different area.” The second and more fundamental problem with respondent’s contention is that it does not deal with the trial court’s explicit statements detailing its views as to what “prejudgment” encompassed and as to what voir dire was disallowed. The morningafter intervening in defense counsel’s voir dire, the court articulated in no uncertain termsprecisely what inquiry it would and wouldnotallow into the multiple-murder aspect ofthe case: it would not allow any mention ofthe matter whatsoever. In the court’s view, “when you [counsel] put in that first component, sir, [i.e., when counseltells the jurors that] ‘you’re not goingto get [to thepenalty phase] until beyond a reasonable doubt he’s been convicted oftwo or three countsoffirst-degree murder,’ well, that puts [the jurors] in a position of having to make a quick judgmentcall aboutfactor (a) without them evenrealizing that’s what they’re doing.” (5 RT 778, internal quotation marks added.) Consequently, the court declared,“all I’m goingto allow youto askis set out the procedure. ‘Only ifthejury makes a determination that the special circumstancesare true,’ without going into anything more, ‘will it trigger off a second part.’ (5 RT 779, internal quotation marks added.) -232- Defense counselspecifically asked ifhe could “define the special circs [sic] in this case,” and the court replied, in unambiguouslanguage,“No,that’s what I don’t want to do in this stage.” (5 RT 781.) Voir dire was to be conducted “without identifying the special circumstance.” (5 RT 782.) And the court threatened defense counsel with being chastised “out there in front of everybody”ifhe went beyond the court-prescribed limits. (5 RT 784.) Thereafter, the court conducted most of the relevant voir dire itself, using the language quoted in the AOBat pages 363 to 366. Without focusing the prospective jurors either on the fact that more than one murder conviction would be a prerequisite to reaching the penalty phase or on whethertheir ability to return a non-death verdict might be impaired asthe result of that fact, the court asked mostly very broad and general questions about whether the jurors could “consider whatever evidenceis forthcoming,”or could “look at all ofthe evidence that might comein underthedifferent factors,” or would “take a look at the crime,” or “give full consideration to both sides [and] be willing to look at each factor that evidence is presented before making a decision,” or “give full consideration to any evidence that’s presented,” or would “look at those other facts other than the circumstances of the crime.” But being willing to look at, consider, fully consider, or take a look at mitigating evidence is what nearly all prospectivejurors would agree they can and would do in most any case. That does not mean they would also be open to returning a non-death verdict or that they are not substantially impaired in their ability to return a verdict oflife without parole. (Cf, e.g., Abdul-Kabir v. Quarterman (2007) 550 U.S. 233, 250 & fn. 12 [not sufficient merely to allowjury to hear mitigating evidence;jury must also be able to give effect to such evidence]; Penry v. Lynaugh (1989) 492 U.S. 302, 319 [similar]; People v. McKinnon(2011) 52 Cal.4th 610, 650 [prospective juror who “stat[ed] his -233- willingnessto ‘consider’ the evidence andinstructions and impose the penalty he ‘personally feel[s] is appropriate” was an “ambiguousresponse [that] may have implied his understandingthat,after such ‘consider[ation],’ his personal preference couldstill prevail”). Cf., People v. Thomas (2011) 51 Cal.4th 449, 471 [while prospective juror “consistently explained that . . . she could considerthe death penalty and there wasapossibility she could vote to impose it,” nevertheless other beliefs “would makeit very difficult for her to vote for the death penalty and she did not think she could do it.”]. Andsince none ofthis voir dire would have been generally understood as asking the jurors about the specific effect on them of the multiple-murder nature of this case, it could not possibly have identified all the jurors who were prevented or substantially impaired in their ability to return a verdict of life without parole because ofthat factor. This Court has held that a defendant has a right to identify and exclude jurors whoare biased in this way, andthe voir dire below wasclearly inadequateto the task. It was not “specific enough ~ to determine” if the jurors harbored such disqualifying views. (People v. Cash, 28 Cal.4th at p. 720. See also, e.g., Morgan v. Illinois (1992) 504 U.S. 719, 735 [jurors who would alwaysvote to impose death can “in all truth and candor respond affirmatively” to general questions of fairness and impartiality, “personally confident that [their] dogmatic views are fair and impartial, while leaving the specific concern unprobed. ... It may be that a juror could, in good conscience, swear to upholdthe law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so.”].) The upshot is (1) that contrary to respondent’s contention, the limitations imposed on multiple-murder voir dire were not triggered by defense counsel and(2) the effect of the trial court’s ruling went far beyond -234- making sure the prospective jurors were not asked to prejudge the penalty phase. The court’s rulings— from questionnaire throughthe oral voir dire— preventedthe defense from ascertaining whetherthejurors were prevented or substantially impaired in their ability to return a verdictoflife without parole if they found appellant guilty of more than one murder. C. Purported Forfeiture Respondent contends that the current claim is “forfeited because appellant neither exhausted his peremptory challenges nor expressed any dissatisfaction with the jury which was selected, rendering any error nonprejudicial.” (RB 288.) However, “[w]hen voir dire is inadequate, the defense is denied information upon whichto intelligently exercise both its challenges for cause andits peremptory challenges. Because the exercise of peremptory challenges cannot remedy the harm caused by inadequate voir dire, we have never required, and do not now require, that counsel use all peremptory challenges to preserve for appeal issues regarding the adequacy of voir dire.” (People v. Bolden (2002) 29 Cal.4th 515, 537-538.) Respondentalso asserts that any complaint about the court’s changes to the juror questionnaireis forfeited because counsel “fail[ed] to suggest to the trial court that the referenced contextual information be included in the final voir dire questionnaire, particularly since the pertinent information was apparently excluded from the final questionnaire solely because it was 399containedin ‘duplicate questions.’” (RB 297.) Similarly, respondentalleges that any challenge to thetrial court’s failure to ask jurors about the multiple- murder aspect of the case is forfeited because counsel failed to “seek{] an opportunity to ask that question during oral voir dire and [failed to] suggest[] the trial court ask that question during oral voir dire.” (RB 298.) These contentions are obvious makeweight. -235- No reasonable observercould read the recordin this case and conclude the defense committed the forfeitures respondent postulates. The trial court explicitly rejected the defense’s proposed language in the questionnaire and substituted its own, in whatit admitted were “drastic changes”thatit directed defense counsel to “copy... verbatim.” (2 RT 360, 362.) It also madeclear thatits rulings as to “what questions are put in the questionnaire and what not to” carried with it “rulings about the admissibility of asking questions ofthe jurors.” (5 RT 626.) It laid down “the ground rules here.” (5 RT 776.) After defense counsel cited the relevant principles and authority supporting his request to ask prospective jurors whether a multiple-murder finding would preclude them from voting to imposea life-without-parole sentence, the court stated “all I’m goingto allow youto askis set out the procedure,”i.e., counsel could mention “the special circumstances”but “without going into anything more.” (5 RT 777-779.) The court specifically and expressly prohibited counsel from “defin[ing]” or “identifying” the special circumstance in this case. (5 RT 781, 782.) The court noted that “you’re objecting,” but the court “want[ed] it clear [that] this is my ruling.” (5 RT 782.) “Ihaveto tell you that I will not permit that ... and I don’t wantto do thatin front of the jury.” (5 RT 784.) Andit threatened counsel with being reprimanded “out there in front ofeverybody”ifcounsel ventured beyondthe court’s limits. (5 RT 784.) Thereis not a scintilla of support for respondent’s claimsofforfeiture. Andevenifthere were, the record makescrystal clear that whatever further objection respondent claims should have been made would havebeenfutile. (Civ. Code, § 3532 [The law neither does norrequires idle acts.”]; Peoplev. Welch (1993) 5 Cal.4th 228, 237 [Reviewing courts have traditionally -236- excusedparties for failing to raise an issue at trial where an objection would have been futile”].)” ine Thecases cited by respondentare soclearly distinguishable as to warrant little discussion. Neither of the two cases respondent cites regarding “failure to object or suggest pertinent modifications to the trial court's juror questionnaire” (People v. Foster (2010) 50 Cal.4th 1301, 1324; People v. Robinson (2005) 37 Cal.4th 592, 617) involved a trial court rejecting questions on a defense-proposed questionnaire, nor did either involve a court that required the defense to “copy” the court’s revisions “verbatim.” Moreover, in Foster, the court afforded the defense “unlimited questioning”ofjurorsat oral voir dire. (50 Cal.4th at p. 1324.) As for People v. Vieira, 35 Cal.4th at page 286, which respondentcites for the proposition that forfeiture arises when counselfails to “seek[] an opportunity to ask [the relevant] question during oralvoir dire [or to] suggest[] the trial court ask that question,” respondent’s own characterization of the default cannot be reconciled with the record in the instant case, and moreover,it ignores the fact that in Vieira, unlike here, the court “never suggested that defense counsel could not raise the issue in voir dire” and “never ruled that the question was inappropriate.” (35 Cal.4th at p. 286.) Nor did any ofthese cases involve the issue of futility. -237- 2. THE TRIAL COURT UNCONSTITUTIONALLY PRECLUDED THE DEFENSE FROM DETERMINING WHETHER JURORS WOULD BE PREVENTED FROM VOTING FOR LIFE WITHOUT PAROLE, OR SUBSTANTIALLY IMPAIREDIN THEIR ABILITY TO DO SO, AS A RESULT OF MISCONCEPTIONS ABOUT SUCH A SENTENCE Thetrial court refused to allow any inquiry into whether prospective jurors harbored views about a sentenceoflife without parole that prevented or substantially impaired them in their ability to vote in favor of such a sentence. The court based its decision on its belief that this Court had “expressly said that it’s wrong for the judge to tell the jury that life imprisonment withoutthe possibility ofparole meansjust that.” (4 RT 625- 626.) In the AOB, appellant pointed out that the trial court’s belief was wrong. While this Court had held that it is incorrectto instruct a jury that a ee 99994sentenceoflife without parole “‘will inexorably be carried out,’””” there are roughly a half-dozen reasons whythat holding is inapplicable to the voir dire that defense counsel sought to conduct at appellant’s trial. (AOB 377-382.) The RB’s responseis two-fold. First, respondent contends that voir dire inquiry into this area would have “encouraged the type ofpenalty phase speculation prohibited by this Court”in the cases cited in the AOB. (RB 301.) This contention is meritless. The presentissue is about asking questions of jurors on voir dire, not about giving the jury binding instructions, and the purposeofsuch an inquiry is to prevent the verdict from being contaminated by the type of speculation that this Court has condemned. Thetrial court "4 People v. Musselwhite (1998) 17 Cal.4th 1216, 1271, quoting People v. Gordon (1990) 50 Cal.3d 1223, 1277, further internal quotation marks omitted. Accord: People v. Arias (1996) 13 Cal.4th 92, 172; People v. Thompson (1988) 45 Cal.3d 86, 131. -238- would hardly have “encourage[d] speculation” merely by finding out whether a juror believes that a defendant sentenced to life without parole will inevitably or likely be released and, if so, whether the juror would be able to set aside that belief in making his or her sentencing determination. Such a belief is, ofcourse, both speculative and, as shown in the AOB(pp. 378-379), highly unrealistic, and if not set aside, would impair the juror’s ability to choose betweenthe options actually provided by California law: deathorlife without possibility of parole. Thus, the effect of permitting such voirand, if need be, the excusal of prospective jurors who cannotset aside such beliefs would be precisely the opposite of “encourag[ing] speculation.” It would eliminate speculation from the sentencingjury’s sentencing deliberations and enhancethereliability of any determination of the appropriate sentence. The RB’s second response to the present claim is to contend that “appellant never proposed a voir dire question asking jurors if they could follow such an instruction [but] instead proposed asking jurors to speculate - about whether someonesentencedto life without the possib[i]lity of parole would ever be paroled.” (RB 302.) However, the questions that defense counsel asked were plainly preliminary in nature, andthe trial court clearly understood this, for its objection was not to the way the questions were worded but to the entire subject matter the questions weretrying to get into. It was the fopic area that the court was precluding. As the court specifically said, “Don’t get into that area,” and it directed counsel to move on to “other topics”and“other areas.” (4 RT 627, 628.) “I don’t know howtosayit ina nice way,”the court stated, “but I’m not goingto let you getinto that, okay?” (4 RT 628.) -239- Thus, respondent’s contention abouttrial counsel not having proposed a question about the prospective jurors’ ability to follow an instruction is insupportable in light of the record and what actually transpired below.” % Oneofthe reasons given in the AOBas to whythetrial court’s reasoning was wrong requires modification. While the AOB was accurate at the time in stating that this Court had approved instructions that directed the jury to assumea sentenceoflife without parole will be carried out, this Court has since concluded that such an instruction should not be given andthat the jury should instead be instructed to “not be influenced by speculation or by any considerations other than those upon which I have instructed you.” (People v. Letner (2010) 50 Cal.4th 99, 206.) Obviously, appellant’s trial counsel had no way ofknowing in 1998 (whenthe voir dire in this case was conducted)that this Court would modify its views in 2010. Nor does Letner alter the merits of the current issue. As the AOB explained and asthis brief hasreiterated in the preceding paragraphs,the very purposeofthe requested voir dire now at issue was to prevent speculation and inaccuracy from affecting the jury’s penalty-phase verdict. The concerns that motivated Letner thus support the voir dire that defense counsel sought to undertake here. -240- 3. THE TRIAL COURT UNCONSTITUTIONALLY PRECLUDED THE DEFENSE FROM GOING BEYOND THE JUROR QUESTIONNAIRES IN DETERMININGWHETHERTHE PROSPECTIVE JURORS MIGHT BE PREVENTED OR SUBSTANTIALLY IMPAIRED FROM RETURNING A NON-DEATH VERDICT AT THE PENALTY PHASE In People v. Stewart (2004) 33 Cal.4th 425, 440-455, this Court held that reversible error occurred when a trial court relied entirely upon prospectivejurors’ written questionnaire responses when determining whether those jurors’s death-penalty views rendered them unqualified to serve. In the AOB,appellant has argued that equivalent error occurredat his trial. (AOB 383-388.) Respondent disagrees but never mentions Stewart, nor doesit address the claim on the merits. Instead, respondent’s contention is that appellant’s claim is “forfeited because appellant neverraised this objection below.” (RB 302.) According to respondent, objection should have been made “when the trial court explained the procedure now challenged by appellant.” (RB 303, referencing 2 RT 378-379.) However, in the course of “explain[ing] the procedure,”the trial court never indicated it would limit the voir dire to the written questionnaires. Quite the contrary, as respondent acknowledges, the court “granted counsels’ request to orally voir dire the prospective jurors followingthe trial court’s oral voir dire.” (RB 302-302.) It authorized each side to conduct their own voir dire for one-half hour at each of the four planned voir dire sessions. (2 RT 377-378.) Moreover, it was not only counsel whomthetrial court indicated would not be limited by the questionnaire. As shown in the very quotation upon which respondentbasesits forfeiture argument, counsel asked whether the court would itself “engage in some type of comprehensive voir dire in -241- addition to .. . [t]his juror questionnaire that theyll fill out,” and the court replied, “Yes, that’s correct.” (2 RT 379.) There wasno indication anywherein this proceedingthatthetrial court was going to limit counsel to the jurors’ questionnaire responses. Nor wasthere any such indication in ensuing proceedings. Quite the contrary, given that the court foresaw that the questionnaire could “bedifficult for prospective jurors” andthat by the timethejurorsgotto the death penalty questions they might “start to lose attention as to what is going on in that regard” (2 RT 389), the implication wasthat additional questioning would be necessary and permissible. It wasnot untilthe issue arose concerning whether prospective jurors might be disqualified based on their viewsaboutlife with parole thatthetrial court first declared that counsel would notbe allowed to go beyond the questionnaires. (4 RT 625-627.) And indeed, the court made that ruling based upon an error: it incorrectly believed (despite defense counsel’s protestation to the contrary) that “[t]he questionnaire tells you what they feel about these particular topics.” (4 RT 625.) Respondent’s claim of forfeiture lacks any merit. -242- X. OTHERISSUES ARISINGFROM THE USE OF THE DEATH PENALTY 1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PRECLUDING THE DEFENSE FROM INTRODUCING EVIDENCE ABOUT LIKELY CONSEQUENCES OF A SENTENCE OF LIFE WITHOUT PAROLE At the penalty phase of appellant’s trial, the defense soughtto call Norman Morein, a sentencing consultant, to testify in three areas: (1) the prison conditions to which life-without-parole (“LWOP”’)inmates would be subjected, (2) the unlikelihood that LWOPprisoners would ever be presented to the governorfor parole consideration via commutation,and (3) the socially useful work that appellant could do while a prisoner serving an LWOP sentence. Thetrial court refused to allow Mr. Morein totestify. In the AOB,appellant arguedthis ruling was improperfor two separate reasons. First, exclusion of this evidence violated state law; fundamental principles of statutory construction show that when the electorate enacted Penal Codesection 190.3 to govern admission of penalty phase evidence,it intended to permit consideration of the actual impact of a sentence on the defendant. (AOB 391-398.) Second, and in any event, developments in the United States Supreme Court’s Eighth Amendment jurisprudence independently require that such evidence be admissible during the sentencing phase of a capital case. (AOB 398-402.) Because of the importanceofthis kind of evidence, a new penalty phase is required. (AOB 402-404.) Respondent does not dispute the admissibility of Morein’s proposed testimony with regard to the improbability ofcommutation, the second ofthe three topic areas Morein wasto address. -243- Respondent does contendthat insofar as Morein would havetestified - to conditions ofconfinement for LWOPprisoners (Morein’s first topic area), his testimony was“not relevantto the penalty determination becauseit has no bearing on defendant’s character, culpability, or the circumstances of the offense under either the Federal Constitution or Penal Code section 190.3, subdivision. (k)” and because it “involves speculation as to what future officials in another branch ofgovernment will or will not do.” (RB 305-306, citing People v. Martinez (2010) 47 Cal.4th 911, 963; People v. Jones (2003) 29 Cal.4th 1229, 1261; People v. Quartermain (1997) 16 Cal.4th 600, 632; People v. Fudge, supra, 7 Cal.4th at p. 1117; People v. Daniels (1991) 52 Cal.3d 815, 876-878; People v. Thompson,supra, 45 Ca1.3d at pp. 138-139.) Respondentis correct that in People v. Thompson andits progeny,this Court hasrejected appellant’s constitutional claim, holding that admission of “conditions of confinement” evidence is not required by the Constitution. However, the AOB explainedin detail why those decisions are inconsistent with decisions ofthe Supreme Court and should be reconsidered. (AOB 399- 402.) Inasmuch as respondent does not address any of appellant’s points, there is nothing to which the ARB canreply. Respondentsays that evidence concerning conditions of confinement for a person serving an LWOPsentence was properly excluded because it involved speculation as to what future state officials would or would not do. Appellant would point out, however, that any choice between the sentencing options confronting a penaltyjury unavoidably involves somespeculation or assumptions,articulated or not, about whatstate officials will or will not do, and it would be far more conduciveto reliable sentencing determinationsif the sentencing jury were presented with actual evidence concerning current -244- prison conditions for LWOP-sentenced inmates. There would be no guarantee that LWOPsentencing conditions would never change, but the jury’s choice would be far better informed. Further, there is little reason to believe that conditions for such inmates would dramatically change any time soon. Certainly, respondent points to nothing suggesting any material change has been madein the 14 years since Morein wascalledto testify or is currently in the works. As for appellant’s statutory claim related to admission of evidence what an LWOPsentence entails, the AOBset forth two separate bases for concludingthat, as a matter ofstatutory construction, section 190.3 authorizes the admission of such evidence. Thefirst basis was the electorate’s decision to authorize, via section 190.3, admission ofevidence of“any matter relevant to... mitigation.” As the AOBpointed out, at the time section 190.3 was enacted,this phrase had a well-understood meaning that embraced the impact of a sentence upon the defendant. (AOB 392-396.) The implications of the use of the word “mitigation” in section 190.3 were neither raised nor addressedin any ofthe cases cited by respondent, and thus neither those cases nor any others of which appellant is aware are authority for rejecting appellant’s first statutory-construction argument. (People v. Williams (2004) 34 Cal.4th 397, 405 [“cases are not authority for propositions not considered’’]; People v. Barragan (2004) 32 Cal.4th 236, 243 [same].) The second basis for appellant’s statutory argument in support of Morein’s conditions-of-confinement testimony is the electorate’s decision, also embodiedin section 190.3, to authorize admission of“any matter relevant to... sentence.” (AOB 396-398.) While this Court rejected a similar argument in People v. Thompson, 45 Cal.3d at p. 139, it did so without considering many of the crucial indicia of statutory intent that the AOB -245- pointed to. (AOB 396-398.) Thus, appellant’s second statutory-construction argument remains viable under this Court’s precedents. It is unclear whether respondent addresses the third aspect of appellant’s current claim, which involves Morein’s proposed testimony about the socially useful work that appellant could do while a prisoner serving an LWOPsentence. Respondentdoesnot specifically refer to this matter, but it maybethat respondent believes such testimony is encompassed within the holdings of Thompson et al. that preclude “conditions of confinement” evidence. If that is respondent’s belief, respondent is wrong. As one of Thompson’s progenyhasspecifically held, evidence that a defendantis likely to be productive in prison is “relevant and admissible mitigating evidence,” and “[e]xclusion of this mitigating evidence thus violates the constitutional requirementthat a capital defendant must be allowedto presentall relevant evidence to demonstrate he deserves a sentence oflife rather than death.” (People v. Fudge, 7 Cal.4th at p. 1117.) The only remaining question, then, is prejudice, and respondent does not dispute that if either state or federal law required admission of anyofthe Morein evidence, reversal of the penalty judgmentis required. -246- 2. THE TRIAL COURT UNCONSTITUTIONALLY LIMITED DEFENSE COUNSEL’S ARGUMENT TO THE PENALTY JURY In addition to excluding Mr. Morein’s testimony, the court also precluded defense counsel from making argumentsto the penalty jury about (1) the harshness ofserving such a sentence, (2) imprisonment’s future impact on appellant, and (3) other well-known cases where life without parole was imposed. (AOB 405-407. See 28 RT 5613; 30 RT 5770-5771, 5831.) As far as appellant can determine, respondent does not offer any defenseofthe trial court’s ruling prohibiting counsel from discussing “any of the future possible impact prison may have on a person,” Item (2) in the preceding paragraph. (28 RT 5613.) With regardto the trial court’s preclusion ofargument concerning the harshness of an LWOPsentence — Item (1), above — the AOBcited three decisions by this Court that explicitly allow such argument: People v. Gutierrez (2002) 28 Cal.4th 1083, 1159-1160, People v. Daniels (1991) 52 Cal.3d 815, 877-878, and People v. Thompson, supra, 45 Cal.3d at page 131 footnote 29. (AOB 405.) Respondent contends that these decisions only allow counsel to “argue the severity of a sentence of life without the possibility of parole when contrasting it to the death penalty alternative in orderto stress to jurors the gravity of their task.” (RB 308.) Respondent’s argument cannotbe reconciled with the language or reasoningofthesecases. Thus, for example, “characterizing the full nature of a sentence of life in prison without the possibility” is “proper argument” by defense counsel and “permissible.” (Gutierrez, 28 Cal.4th at pp. 1159-1160.) And “[d]efense counsel’s remarksto the jury during closing argumentas to whatlife without possibility of parole would really mean . . . were also within the scope of legitimate argumentto the extent the remarks impressed on thejury the gravity -247- of its task.” (Thompson, 45 Cal.3d at p. 131 fn. 29. See also Daniels, 52 Cal.3d at pp. 877-878 [defense counsel may point out to jury the “rigors of confinement.”].) Finally, as for Item (3), above — the ability of counsel to comment on other well-known cases — the AOB acknowledged that this Court has uniformly upheld suchrestrictions but argued that these rulings could not be reconciled with other decisions allowing prosecutors to comment on well- known cases. (AOB 405-406.) Respondent asserts that the two lines of decision are reconcilable, saying that prosecutors are allowed to refer to “notorious villains . . . not for the purpose of comparison, but solely to illustrate a larger point.” (RB 309.) With due respect, appellant does not see how the distinction respondent perceives has any meaningful content or creates a workable rule. Nor does appellant see why defense counsel who commentonwell-knowncasesare not also merely“illustrating a larger point” nor why prosecutors who commenton well-knowncases are not themselves doing so for “the purpose of comparison.” Respondenthas offered nothing but conclusory amphigory to harmonize the two lines ofcases. The AOBalso argued that the errors committed by the trial court require reversal of the penalty judgment. (AOB 406-407.) The RB’s response, in its entirety, is that “reversal of the penalty phase verdict is unwarranted becausethere is no reasonablepossibility the verdict would have been different absent the error.” (RB 310.) Respondent does not discuss any of the mitigating factors in the case, or anything else. There is nothing to which this ARB can reply. -248- 3. CONFLICTING INSTRUCTIONS WERE GIVEN WITH RESPECT TO THE NEWLY INSTALLED ALTERNATES’ ABILITY TO CONSIDER LINGERING DOUBT In the AOB, appellant has argued that the alternate jurors who substituted into the penalty trial were given conflicting instructions asto their ability to consider lingering doubt. (AOB 408-411.) Respondentargues,first, that this claim is forfeited because “appellant did not request amplificationorclarification ofthese instructions in the matter now suggested in the trial court.” (RB 311-312.) Respondent overlooks section 1259, which specifically provides that “[t]he appellate court may also review any instruction given .. . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” Respondent also overlooks that appellant is not claiming that the instructionto alternatejurors should have been modified butratherthat, in the context of this case, the instruction was erroneously given. Such claimsare not forfeited by a failure to ask for “amplification or clarification.” (See, e.g., People v. Hillhouse (2002) 27 Cal.4th 469, 503.) Respondent arguesthat the alternate jurors would not have found the instructions to be inconsistent because “[t]he distinction between reasonable doubt and lingering doubt was not subtle, sophisticated, or unintuitive” and because counsel for both side discussed lingering doubt “without excepting the alternate jurors.” (RB 312.) Appellant disagrees about whether a layperson would find the distinction to be intuitive or easy to grasp. The concept of reasonable doubt by itself is difficult to define (see Victor v. Nebraska (1994) 511 U.S. 1,5 [“defies easy explication”]), and the difference between reasonable doubt and lingering doubt is even more so (see Franklin v. Lynaugh (1988) 487 U.S. 164, 188 [residual doubt is “ a state ofmind that -249- exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.’], O’Connor, J., concurring.) Respondentitself does not explain the difference except to say that “reasonable doubt” applies at the guilt phase and “lingering doubt” at the penalty phase, which is not an explanation as to the substance ofeither concept, let alone does it explain the substantive difference between them. (RB 312.) And while respondentis correct that neither counsel excepted the alternates from their discussionsof lingering doubt, the alternates knew that thejudge’s instructions prevailed over counsel’s arguments (30 RT 5840), and they also knew that one instruction targeted them and them alone — the instruction requiring acceptanceofthe guilt-phase verdicts. Respondent also asserts that “[t]he alternate jurors would have to abandonlogic to infer from thetrial court’s instructionsthat they should step out of the jury room or stop their ears when the other ten jurors discussed lingering doubt during penalty phase jury deliberations.” (RB 312.) Respondent’s scenario is imaginative but overstated. The alternates would have to do no more than any penalty juror would do when,for example, other jurors discussthe weightto be given to other-crimesevidencethat thesejurors believe has been proven beyonda reasonable doubt butthat the juror does not personally believe has been so proved. The juror would simplytell himself or herself, “The discussion doesnot apply to me.” In neithersituationis the juror required to “step out of the jury room orstop their ears.””° %6 Respondent also argues that the trial court had no sua sponte duty to instruct on lingering doubt (RB 312-313), but with due respect, appellant fails to comprehend respondent’s point. Respondent admits that even ifthere was no duty to give an explicit instruction, the fact remainsthat the jury wasentitled “to consider lingering doubt.” (RB 313.) Ifthe court failed to give the instruction explicitly mentioning lingering doubt but had (continued...) -250- 4, THE JUDGMENT AGAINST APPELLANT VIOLATES THE FEDERAL CONSTITUTION BECAUSE APPELLANT’S CAPITAL TRIALWAS CONDUCTED, AND/OR HIS APPEAL IS BEING CONDUCTED, BEFORE JUDICIAL OFFICERS WHOEITHER HAD TO WIN, OR STILL HAVE TO WIN, A VOTE OF THE POPULACE IN ORDERTO STAYIN OFFICE AND WHO THUS HAD OR HAVEA MOTIVE, INCENTIVE, AND TEMPTATION TO RULE AGAINST HIM Appellant has argued that the death penaltyjudgment must be reversed because thejudge whopresidedathis trial and thejustices who will decide his appeal are subject to voter approval and thus had or have the motive, incentive, and temptation to rule against him. (AOB 412-422.) Respondent contendsthat “[j]udicial rulings alone almost neverconstitute a valid basis for a claim ofjudicial bias” and that consequently appellant “cannot. . . support his argument with commentaries about the fervor of the electorate, the political nature ofthe judicial elections or the high percentage ofcapital cases affirmed by. this Court.” (RB 314.) This argument is meritless. For one thing, appellant’s claim is based on much morethan “judicial rulings alone.” Second,even if, as respondent indicates, judicial rulings alone “almost never constitute a valid basis for a claim ofjudicial bias,” why does that imply that appellant “cannot .. . support his argument with commentaries about the fervorofthe electorate, the political nature ofthejudicial elections or the high percentageof capital cases affirmed by. this Court”? This is a non-sequitur, and indeedit is stated in conclusory terms, with nothing cited to support it. *6(.. continued) solely instructed on Factor (k) — which “would have sufficed to inform the penalty phase jurorsoftheir ability to consider lingering doubt” (RB 313) — the instruction to the alternates would have conflicted with what that instruction indicated. -251- 5. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION In conformity with appellate counsel’s understanding of how People v. Schmeck (2005) 37 Cal.3d 240 indicates he should proceed, the AOB argued that California’s death penalty law,as interpreted by this Court and applied athis trial, is unconstitutional for numerousreasons,all ofwhich the Court has repeatedly disagreed with, and has asked the Court to reconsider. (AOB 423-430.) Respondent agrees that appellant’s claims have been previously rejected but opposes reconsideration. (RB 314-317.) Under the circumstances, there is no need for this ARB to add to the discussion in the AOBand, unless directed by the Court to do otherwise, will submit these issues on the AOB briefing, per Schmeck. 6. SHOULD APPELLANT BE DEEMED TO HAVE FORFEITED ANY ARGUMENTS OR ISSUES SET FORTHIN PART SIX OF THIS BRIEF AS A RESULT OF ACTS OR OMISSIONSBY HIS TRIAL COUNSEL, THEN APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL Appellant has arguedthatifany ofthe claimsraised in Part Six (§§ IX and X) ofthe AOBare deemedto have beenforfeited as direct-appealissues, thejudgment wouldstill have to be reversed because ofineffective assistance of counsel with respect to those claims. (AOB § X.6, p. 431.) Respondent summarily asserts that appellant “cannot prove [ineffective assistance] from the state record” (RB 318), but respondent does not elaborate, so there is nothing to which appellant can meaningfully reply. -252- 7. CUMULATIVE PREJUDICE FROM THE PENALTY PHASE ERRORS AND THE ERRORS FROM THE GUILT PHASE In the AOB,appellant has argued that the cumulation oferrors would require that the penalty judgment be reversed even if no individual error would compel that result. (AOB § X.7, p. 432.) Respondent summarily denies that there were any errors of state or federal law or that there is any prejudice, respondentbut doesnot elaborate. (RB 318-319.) There is nothing to which appellant can meaningfully reply here other than to pointout that the Chapmanstandard applies directly to federal error and that an equivalent test is used when penalty-phaseerror is found understate law. (People v. Jones, supra, 29 Cal.4th at p. 1264 fn. 11.) CONCLUSION Forall ofthe reasons set forth in the AOBandin the current ARB,the guilt- and penalty-phase verdicts against appellant Lam Nguyen mustbeset aside, and the case remandedfor dismissal of the counts for which there is insufficient evidence and a new andfairtrial as to the remaining counts. DATED: March 4, 2012 t, ) Calf Richard C. Neuhofif Counsel for Appellant Lam Nguyen CERTIFICATE OF COMPLIANCE I certify that the attached Appellant’s Reply Briefuses a 13 point Times New Romanfont and contains 74,853 words. Dated: March 4, 2012 hp RICHARD C. NEUHOFF Counsel for Appellant -253- Trial Exhibit C
