PEOPLE v. JONES (WILLIAM ALFRED)

Appellant's Opening Brief

Cal.September 15, 2005

TABLE OF CONTENTS STATEMENT OF APPEALABILITY ........................ 1 STATEMENT OF THE CASE PRE-TRIAL PROCEEDINGS ........... 0000 c cece ee eee eee eee 1 JHE GUILT PHASE ............ 0. eee eee eee ee eee ene nee 3 THE PENALTY PHASE ........cece eect teen eee eae 4 STATEMENT OF THE FACTS THE GUILT PHASE I. INTRODUCTION ..... 0... cee cee eee eee ees 6 Il. SUMMARYOF THE EVIDENCE A. The Prosecution’s Case in Chief 1. The Homicide andArson ..... 00.0 ccc cas 7 2. Appellant’s Statements to Police .............. 10 3. Other Crimes Evidence «0.0... oo cee 15 B. Defense Evidence 1. Appellant’s Testimony a. Direct Examination ...........0..2005. 16 b. Cross-Examination 0.0.0... 0c cee 17 C. Redirect 0... 0... ccc cen 18 2. Forensic Evidenc€ .... 0.0.0 ccc ene 19 3. Evidence re Toni Pina Allegations ....... 21 4, Evidence reMs. Eddings’ Attitude Toward Alcohol . 0.0...ccs21 C. Prosecution’s Rebuttal Evidence 1. Pina Incident ©... 0...ces21 2. Appellant’s Previously Redacted Statements ...... 23 THE PENALTY PHASE I. PROSECUTION EVIDENCE A. Other Criminal Conduct 1. Former Girlfriends a. Terry Garrison .. 0.0...eee24 b. Tina (Perfater) Kidwell ............0.... 27 C. Elsie Swarringim ...... 0.0... ce cee 28 2. Single Incidents a Norma Knight ... 2.0.0.0 0 000 ccc eee 30 b. Barbara Cady .........0 20. cece ees 31 ¢. Cathy Dunn ©... 6.ees 32 d. Francis Stuckinschneider ............... 33 B. Victim Impact Evidence .......... 0.0.0... 0c eee, 34 IL. DEFENSE EVIDENCE A. Appellant’s Family History .....................0.. 35 B Psychological Evidence ...................0.200005 36 C. Appellant’s Behavior in Custody and on Parole ......... 38 D Evidence re Other Incidents 1, Francis Stuckenschneider ....0.0000 0000 38 2 Terry Garrison 0.2.0...ceeeee 39 3. Tina Kidwell... 0.0.0.eee 39 4. Cathy Dunn... 0.cece nes 39 5 Elsie Swarringim 2.0.0.0ccnee 40 il Il. PROSECUTION’S CROSS-EXAMINATION OF DEFENSE WITNESSES AND REBUTTAL A. Donald Jones .......... 0.0... eeeee 40 B Dr. Kania...0.ete40 C. Appellant’s Parole Officer ...................0...40.. 42 D Redacted Portions of Appellant’s Statements to Police ... AUTHORITIES AND ARGUMENT GUILT PHASE ISSUES I. THE TRIAL COURT ERRED IN PERMITTING THE JURY TO CONSIDER EVIDENCE OF APPELLANT’S CRIMINAL DISPOSITION IN REACHING VERDICTS ON THE CHARGE OF FIRST DEGREE MURDER AND THE SPECIAL CIRCUMSTANCE ALLEGATIONS. A. Introduction 2.0.0.0... cece cee teenies 48 B. Written Pleadings ....:........ 0.00.0. c eens 40 C. Hearing on the Motions ....................2-020005 50 D. Evidence at Trial .. 0.0... 0.cee55 E. Instructions and Arguments to the Jury ............... 59 F, Evidence Regarding the Toni Pina Incident Should Have Been Excluded as Improper Character Evidence. ........ 63 G. The Evidence Should Have Been Excluded under Evidence Code Section 352 as More Prejudicial than Probative. 2.2.0...eee cee nes 68 H. The Jury Instructions Erroneously Permitted the Jurors to Consider Evidence of Other Crimes Which the Trial Court Had Determined Was Not Relevant on the Question of Intent in Resolving this Very Issue.. ........ 70 ili Il. L. The Trial Court’s Error Also Violated Appellant’s Federal Constitutional Rights. ..................00.. 74 J. Prejudice 20...eeeens76 THE TRIAL COURT ABUSEDITS DISCRETION IN PERMITTING THEAUTOPSYSURGEONTORENDERHISPERSONAL OPINION, BASED NOT UPON ANATOMIC FINDINGS BUT RATHER UPON EXTRINSICFACTORS SUCHASAPPELLANT’S STATEMENTSTO POLICE, THAT THE VICTIM HAD BEEN RAPED AND MURDERED, AND THAT SHE HAD BEEN RAPED AND SODOMIZED PRIOR TO DEATH. A. Introduction .... 0.0.0.0... cece cee teen eens 80 B. Dr. DiTraglia’s Training and Experience .............. 85 C. The Basis for Dr. DiTraglia’s Opinion................ 87 D. There WasInsufficient Foundation for Dr. DiTraglia’s “Expert” Opinion on These Matters. ................. 90 E. The Opinions Rendered by Dr. DiTraglia Were of No Value to the Jury and, thus, Were Not Proper Subjects of Expert Testimony. ........... 0.0.0 c eee es 93 F. The Evidence Was More Prejudicial Than Probative and Should Have Been Excluded Under Evidence Code Section 352. 0...eeetees 95 G. The Trial Court’s Error Also Violated Appellant’s Federal Constitutional Rights. ...................... 97 H. Prejudice «0...ceeeens 98 iv Hil. IV. THE TRIAL COURT ERRONEOUSLY EXCLUDED AN ENTIRE CATEGORY OF CRITICAL DEFENSE EVIDENCE, INCLUDING EXPERT TESTIMONY BY A QUALIFIED MENTAL HEALTH PROFESSIONALANDEVIDENCEPERTAININGTOAPPELLANT’S HISTORY OF MENTAL HEALTH COMMITMENTS, WHICH RELATED TO THE CENTRAL ISSUE TO BE DECIDED BY THE JURY—APPELLANT’S INTENT. A. Introduction ......... 0.0.0... c cee eee 100 B. Background Information ................ 0000 e eae 102 C. Standard of Review ............ 0.00: c cee eens 106 D. The Proposed Testimony of Dr. Kania, a Qualified Mental Health Expert, Was Relevant and Admissible on the Issue of Intent. ... 00...eeeee 107 E. State Law Did Not Permit the Exclusion of Psychological Evidence Relevant to Show the Absence of the Required Mens Rea. ...............-. 00.005 109 F, The Ruling Violated Appellant’s Rights underthe Fifth, Sixth, Eighth and Fourteenth Amendments. ........... 115 G. The Errors Require Reversal ...................... 119 THE ABSTRACT OF JUDGMENT MUST BE CORRECTED TO ACCURATELY REFLECT THE SENTENCE IMPOSED BY THE TRIAL COURT ON COUNT? ............... 00 cece eee een 121 PENALTY PHASE ISSUES Jury Selection Issues 1. THE TRIAL COURT’SEXCLUSION OF QUALIFIEDJURORS,AND INCONSISTENT APPLICATION OF THE WAINWRIGHT V. WITT STANDARDFOREXCLUSIONWHICHUNFAIRLYFAVORED THE PROSECUTION, VIOLATED APPELLANT’S RIGHTS TO A FAIR AND IMPARTIAL JURY, TO DUE PROCESS OF LAW, AND TO A RELIABLE PENALTY DETERMINATION AS GUARANTEED BY THEFIFTH, SIXTH, EIGHTH,ANDFOURTEENTHAMENDMENTS. A. B. Introduction ............. 0c cece cece ee ee eee nas 124 General Legal Principles ...................000005 125 The Exclusion ofTwo Prospective Jurors for Cause Was Unsupported by Substantial Evidence and Requires Reversal of the Death Sentence..................... 129 1. Prospective Juror Brown .................--. 130 a. Prospective Juror Brown’s Responses to the Jury Questionnaire and on Voir Dire . . 131 b. The Exclusion ofProspective Juror Brown for Cause was not Supported by Substantial Evidence that Her Feelings About the Death Penalty WouldPrevent of Substantially Impair Her Ability to Perform Her Duties as a Juror .......... 133 2. Prospective Juror Lee .............-...0000- 138 a. Prospective Juror Lee’s Responsesto the Jury Questionnaire and on Voir Dire ..... 139 b. The Exclusion ofProspectiveJurorLeefor Cause was not Supported by Substantial Evidence that Her Feelings About the Death Penalty Would Prevent of Substantially Impair His Ability to vi i. Perform Her Duties asa Juror .......... 145 D. The Actions of the Trial Court and the Prosecutor Produced a Jury Culled ofAll Those Who Revealed During Voir Dire That They Had Conscientious Scruples Against or Were Otherwise Opposed to Capital Punishment, Which Violated Appellant’s Right to a Fair and Impartial Jury. 1. The Trial Court Applied the Witt Standard in an Arbitrary and Capricious Manner, Which Was Fundamentally Unfair and Amounted to an Abuse of Discretion Not Entitled to Deference. ........ 152 a. “Death-Inclined”Jurors Whom the Court Refused to Excusefor Cause. 1. Prospective Jurors, Nielson, Powers andRomero ............. 154 2. Prospective Juror Dyer .......... 162 3. Prospective Juror Bare .......... 164 b. Comparison of Treatment of “Death- Inclined” and “Life-Inclined” Jurors. ... . 165 2. The Prosecutor’s Exercise of Peremptory Challenges to Excuse Life-Inclined Jurors Who Remained Produced a Jury From Whichall Such Jurors Were Excluded in Violations of Appellant’s Right to a Fair and Impartial Jury. ... 171 E. Conclusion.............. 00... e eee ee eee eee ees 175 Overall Challenges CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION. A. Appellant’s Death Penalty Is Invalid Because Penal Code § 190.2 Is Impermissibly Broad .................... 178 Vii Appellant’s Death Penalty Is Invalid Because Penal Code § 190.3(a) as Applied Allows Arbitrary And Capricious Imposition of Death in Violation of The Fifth, Sixth, Eighth, And Fourteenth Amendments to The United States Constitution ...................Leen eee 182 California’s Death Penalty Statute Contains No Safeguards to Avoid Arbitrary and Capricious Sentencing and Deprives Defendants of the Right to a Jury Trial on Each Factual Determination Prerequisite to a Sentence of Death; it Therefore Violates the Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution 0.0.0...eeeees 189 l. Appellant’s Death Verdict Was Not Premised on Findings Beyond a Reasonable Doubt by a Unanimous Jury That One or More Aggravating Factors Existed and That These Factors Outweighed Mitigating Factors; His Constitutional Right to Jury Determination Beyond a Reasonable Doubt of All Facts Essential to the Imposition of a Death Penalty WasThereby Violated ..................0... 190 a. In the Wake of Apprendi, Ring, and Blakely, Any Jury Finding Necessary to the Imposition of Death Must Be Found True Beyond a Reasonable Doubt ....... 192 b. The Requirements ofJury Agreement and Unanimity 0.000ces204 2. The Due Process and the Cruel and Unusual Punishment Clauses of the State and Federal Constitution Require That the Jury in a Capital Case Be Instructed That They May Impose a Sentence of Death Only If They Are Persuaded Beyond a Reasonable Doubt Thatthe Aggravating Factors Outweigh the Mitigating Factors and That Death Is the Appropriate Penalty.............. 208 Vill a. Factual Determinations ............... 208 b. Imposition ofLife or Death 1...eens 209 Even If Proof Beyond a Reasonable Doubt Were Not the Constitutionally Required Burden of Persuasion for Finding (1) That an Aggravating Factor Exists, (2) That the Aggravating Factors Outweigh the Mitigating Factors, and (3) That Death Is the Appropriate Sentence, Proof by a Preponderance of the Evidence Would Be Constitutionally Compelled as to Each Such Finding ........ 0. cece eee ceceeeeeeueeeees 214 Some Burden of Proof Is Required in Order to Establish a Tie-Breaking Rule and Ensure Even- Handedness .............. 0-00 cee eee ee eee 215 Even If There Could Constitutionally Be No Burden of Proof, the Trial Court Erred in Failing to Instruct the Jury to That Effect ............. 216 California Law Violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution by Failing to Require That the Jury Base Any Death Sentence on Written Findings Regarding Aggravating Factors ............... 217 California’s Death Penalty Statute as Interpreted by the California Supreme Court Forbids Inter- case Proportionality Review, Thereby Guaranteeing Arbitrary, Discriminatory, or Disproportionate Impositions ofthe Death Penalty Leeee eee eee eee ee 221 The Prosecution May Not Rely in the Penalty Phase on Unadjudicated Criminal Activity; Further, Even If It Were Constitutionally Permissible for the Prosecutor to Do So, Such Alleged Criminal Activity Could Not Constitutionally Serve as a Factor in Aggravation ix Unless Found to Be True Beyond a Reasonable Doubt by a Unanimous Jury ................. 225 9. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Acted as Barriers to Consideration of Mitigation by Appellant’s Jury ..........0... 000.000 eee 226 10. The Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators Precluded a Fair, Reliable, and Evenhanded Administration of the Capital Sanction 2.0...eeeee eee 226 D. The California Sentencing Scheme Violates The Equal Protection Clause of The Federal Constitution by Denying Procedural Safeguards to Capital Defendants Which Are Afforded to Non-capital Defendants. ....... 228 E. California’s Use ofthe Death Penalty as a Regular Form of Punishment Falls Short of International Norms of Humanity and Decency and Violates the Eighth and Fourteenth Amendments; Imposition of the Death Penalty Now Violates the Eighth and Fourteenth Amendments to the United States Constitution ........ 235 Evidentiary Issues Ill. THE TRIAL COURT ERRED IN ADMITTING IRRELEVANT AND PREJUDICIAL VICTIM IMPACT EVIDENCE. A. Introduction .... 0.0... 0... ccceens 240 B. Trial Court Rulings and Evidence Presented 1. Video Montage of Photographs ............... 242 IV. 2. Victim Impact Concerning Relatives of Ruth Eddings a. Helen Harrington .......0..0.0 00.0000 ee 245 b Donna Velasquez ........ 00 cece 247 C. Ernestine Pierson ......0. 000 cece 248 d. Shirley Grimmett .....0.000.0. 0000 c cee 249 3. Victim Impact Concerning Prior Crimes ........ 250 Standard of Review .......... 0.0... eee ee eee eee 250 The Victim Impact Evidence Relating to Ms. Eddings WasFar in Excess of What Should Be Permitted under Penal Code Section 190.3, Subdivision (A), as a Circumstance of the Crime, and Should Have Been Excluded. .......... 0.02: cee ce eee tenes 251 “Victim Impact Evidence Regarding Victims of Prior Crimes Was Improperly Admitted .................. 263 The Victim Impact Evidence should have been excluded under evidence code section 352 as more prejudicial than probative. ... 2.2... e eee 266 The Error Was Prejudicial and Requires Reversal of Appellant’s Death Sentence ....................... 272 Instructional Error THE TRIAL COURT ERRED IN FAILING TO GIVE PENALTY PHASE INSTRUCTIONS REQUESTED BY THE DEFENSEWHICH WERENEITHERCUMULATIVENORARGUMENTATIVE,WHICH CONTAINEDCORRECT STATEMENTSOFTHELAW,ANDWERE NECESSARY FOR THE JURY TO PROPERLY PERFORM ITS FUNCTION AT THE PENALTY PHASE. A. Introduction .......... 0.0... ccc ee cee ten eens 275 B. General Principles ............. 00.000 ce eee ee 276 C. The Trial Court Erred in Reading Pattern Instructions Emphasizing Fact-finding While Refusing a Defense Instruction Acknowledging the Jury’s Moral Decision and Normative Function. ............... 00.000 0005 280 D. The Trial Court Violated Appellant’s Rights by Refusing to Instruct the Jury That it Was Improperto Rely Solely upon the Facts Supporting the Murder Verdict and Special Circumstances Findings as Aggravating FactOrs. 2...ectee eens 284 E. The Trial Court Erred by Refusing A Defense Instruction Informing Jurors They Were Required to Impose a Sentence of Life Without Possibility of Parole If They Determined Mitigation Outweighed Aggravation. ...... 292 F. The Trial Court Erred in Refusing Appellant’s Instructions That One Mitigating Factor Alone Could Serve as the Basis for Life Without the Possibility of Parole and an Instruction That the Jurors Were Free to Vote for Life Even in the AbsenceofSpecific Mitigating Factors. 2... tees 296 G. The Trial Court Erred in Refusing to Instruct the Jurors That, Contrary to Views Expressed by Many Potential Jurors During Voir Dire, Death Is the Most Severe Penalty the Law Can Impose....................04. 299 H. The Trial Court Erred in Refusing to Give Appellant’s ProposedInstructions Regarding the Scope of Mitigation. 2.0.2.0... 0. eeeeens 300 I. The Tnal Court Violated Appellant’s Constitutional Rights by Refusing to Instruct on Lingering Doubt of Guilt 2...eeeeee nae 303 J. Prejudice ... 0.0...eecttenes 307 CONCLUSION ........... 00... ceeceee nes 310 CERTIFICATION OF WORD COUNT ................. 0000 eee eee 310 xil TABLE OF AUTHORITIES CASES Adamsy. Texas (1980) 448 U.S. 38..... 126, 133, 150-153, 171, 175, 176 Addington v. Texas (1979) 441 U.S. 418.2... 0. eee, 209, 210 Ake vy. Oklahoma (1985) 470 U.S. 68 20.0... ccceee 115 Albright v. Oliver (1994) 510 U.S. 266 2.2.0... eee eee 307 Apodacav. Oregon (1972) 406 U.S. 404........ 00.0.0 00 0020 205 Apprendi v. New Jersey (2000) 530 U.S. 466 ................00-. 191 Arizona v. Fulminante (1991) 499 U.S. 279 «0.0... cece 76, 98 Atkins v. Virginia (2002) 536 U.S. 304... 76, 97, 222, 231, 234, 237-239 Barclay v. Florida (1976) 463 U.S. 939 ........-.. eeeeueeees 221 Beck v. Alabama (1980) 447 U.S. 625 ... 97, 115, 211, 213, 232, 250, 276 Blakely v. Washington (2004) 542 US. «ow 191-192, 197, 199 200-202, 205, 208, 225, 234 Bogart v. Superior Court (1964) 230 Cal.App.2d 874 .............. 122 Booth y. Maryland (1987) 482 U.S. 496 ........... 0.00 e eee 251 Boyde v. California (1990) 494 U.S.370 ........ 0.020.000. 293, 305 Bradley v. Duncan (9" Cir. 2002) 315 F.3d 1091 ................. 277 Brewer v. State (Ind. 1981) 417 N.E.2d 889 ..................0.. 223 Brown v. Louisiana (1980) 447 U.S. 323... 0...eee 205 Buchanan vy. Angelone (1998) 522 U.S. 269 ........ 0.0.0... 0 cee 290 xill Bush v. Gore (2000) 531 U.S.98 0.0... eeeee 233 Caldwell v. Mississippi (1985) 472 U.S. 320 ............0005. 282, 283 California v. Brown (1987) 479 U.S. 538 ............04. 217, 282, 297 | California v. Ramos (1983) 463 U.S. 992 ... 0...eee232 Cantu v. State (Tex. Cr. App. 1997) 939 S.W.2d 627 .............. 266 Cargle v. State (Ok.Cr.App. 1995) 909 P.2d 806 ................. 269 Carter v. Kentucky (1981) 450 U.S. 288 2.0.0.0... 0. cee 276 Chambers v. Mississippi (1973) 410 U.S. 284 ............ 115, 276, 307 Chapmanv. California (1967) 386 U.S. 18 ......... 76-77, 98, 119-120, 272, 292, 308 Charfauros v. Board ofElections (9" Cir. 2001) 249 F.3d 941 ....... 234 City ofSacramento v. Drew (1989) 207 Cal.App.3d 1287 ............ 106 Coker v. Georgia (1977) 433 U.S. 584 2.2.0.0... 0.0.20 222, 231 College Hosp., Inc. v. Superior Court (Crowell) (1994) 8 Cal.4th 704 . . 99 Collins v. State (Ark. 1977) 548 S.W.2d 106..................... 223 Commonwealth v. O’Neal (Mass. 1975) 327 N.E.2d 662 ........... 228 Conservatorship ofRoulet (1979) 23 Cal.3d 219 ..............0.. 210 CooperIndustries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424 1.0.0.0... eee ae. 201 Crane v. Kentucky (1986) 476 US. 683 2.2.0.0... 0.000. .c eee eee 115 Davis v. Georgia (1976) 429 U.S. 122 2...eeeee 129, 138 XIV Den ex dem. Murray v. Hoboken Land and Improvement Co. (1855) 59 U.S. (18 How.) 272 ........ 204, 214 Doe v. Superior Court (1995) 39 Cal.App.4th 538 6.00... .... cece, 116 Duncan vy. Louisiana (1968) 391 U.S. 145 oo.eee 276 Eddings v. Oklahoma (1982) 455 U.S. 104 .............. 228, 277, 306 Enmundy. Florida (1982) 458 U.S. 782 2.0... eee 222 Estelle v. McGuire (1991) 502 U.S. 62 2.0...eee 75-76 Ex Parte Ochse (1951) 38 Cal.2d 230 .. 0...eee 116 Fetterly v. Paskett (9th Cir. 1991) 997 F.2d 1295 ............. 276, 308 Ford v. Wainwright (1986) 477 U.S. 399 «1.02... eee. 23 1-232, 239 Francis v. Franklin (1985) 471 U.S. 307 2.0.cc279 Franklin v. Lynaugh (1988) 487 U.S. 164 20.0.0. eee 303 Furman vy. Georgia (1972) 408 U.S. 238 ........ 222-224, 237, 257, 285 Gardner v. Florida (1977) 430 U.S. 349 ........ 209, 232, 261, 266, 272 Gattis v. State (Del. Supr. Ct. 1994) 637 A.2d 808 .............-.. 270 Gentile v. State Bar ofNevada (1991) 501 U.S. 1030 .............. 175 Gideon v. Wainwright (1963) 372 US. 335 2...ee294 Ginns v. Savage (1964) 61 Cal.2d 520 ...... 0... ee eee 264 Godfrey v. Georgia (1980) 446 U.S. 420................ 189, 257-258 Graham v. Collins (1993) 506 U.S. 461 .. 0.0.0.0... 0.000005 291, 293 Gray v. Klauser (9th Cir. 2001) 282 F.3d 633 ................ 128, 153 XV Gray v. Mississippi (1987) 481 U.S. 648.00... 0.00... 00.0000. 129, 151 Gregg v. Georgia (1976) 428 U.S. 153 ............ 217, 222-224, 228, 232, 257, 266, 272, 277 Griffin v. United States (1991) 502 U.S. 46.................. 204, 214 Grimshaw vy. FordMotor Co. (1981) 119 Cal.App.3d 757 .......... 108 Harmelin v. Michigan (1991) 501 U.S. 957... 00. eee 206, 219 Harris y. Alabama (1995) 513 U.S. 504 ..... 0.0.0.0. ...00005. 182, 291 Hicks v. Oklahoma (1980) 447 U.S. 343 ... 74, 75, 97, 215, 242, 276, 308 Hilton v. Guyot (1895) 159 U.S. 113. 2...eee 236, 238 Hitchcock v. Dugger (1987) 481 U.S. 393 20...ee 277 Hughes v. United States (6th Cir. 2001) 258 F.3d 453....... 128, 152, 175 In re Adoption ofDriscoll (1969) 269 Cal.App.2d 735 ............. 106 In re Bateman (1928) 94 Cal.App. 639 1.0.0.0... 0c cece eee 122 In re Candelario (1970) 3 Cal.3d 702 ...... 0.0... ccc cece eee 122 In re Carmaleta B. (1978) 21 Cal.3d 482 ............. 0.00 ..0000. 106 In re Hitchings (1993) 6 Cal.4th 97 20...cceee 175 In re Ketchel (1968) 68 Cal.2d 397 .. 0.00... . eeeee 116 In re Sandel (1966) 64 Cal.2d 412 2...cen 123 In re Sturm (1974) 11 Cal.3d 258 2.0.0... 0.ceeee 218 In re Winship (1970) 397 U.S. 358 2.0... eee eee 75, 97, 209-211 Izazaga v. Superior Court (1991) 54 Cal.3d 356 ..............00.. 294 xvi Jecker, Torre & Co. v. Montgomery (1855) 59 US. [18 How.] 110 ... 238 Johnson v. Louisiana (1972) 406 U.S.356 2.0.0... 2. eee eee 205 Johnson v. Mississippi (1988) 486 U.S. 578 ................. 225, 227 Johnson v. State (Nev. 2002) 59 P.3d 450 ...............005. 194, 200 Kinsella v. United States (1960) 361 U.S. 234................0.5. 232 Korshak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516 ........... 107 Lankford v. Idaho (1991) 500 U.S.110 1... eee ee eee 278 Ledbetter v. State (Okl.Cr. 1997) 933 P.2d 880 ................0.0. 270 Lockett v. Ohio (1978) 438 U.S. 586 ............. 76, 97, 115, 205, 226 232-233, 250, 277 LockheedLitigation Cases (2004) 115 Cal.App.4th 558 ............. 92 Lowenfield v. Phelps (1988) 484 U.S. 231................ 283, 285, 287 Martin v. Waddell’s Lessee (1842) 41 U.S. [16 Pet.] 367 ........... 236 Mathews v. United States (1988) 485 U.S. 58 ... 0.0. ..0.. 0.00. .00000. 277 Matthews v. Eldridge (1976) 424 U.S. 319 2.0.0... 0.2... eee 210 Maynard v. Cartwright (1988) 486 U.S. 356 ............. 189, 257-258 McCleskey v. Kemp (1987) 481 U.S. 279 2.0.231 McGauthav. California (1971) 402 U.S. 183 .......0.....0..0.00.0. 282 McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 ............... 75-76 McKoy v. North Carolina (1990) 494 U.S. 433.0... 00.0. 0...0000.. 304 Michelson v. United States (1948) 335 U.S. 469 ............. 63, 64, 70 XVii Miller v. United States (1871) 78 U.S. [11 Wall.] 268 .............. 236 Mills v. Maryland (1988) 486 U.S. 367... 02... 0..0.000. 216, 226, 235 Mongev. California (1998) 524 U.S. 721 ....... 203, 205-206, 212-213, 228, 232-233, 235, 250 Morgany. Illinois (1992) 504 US. 719.0... .0....0.000. 125, 127, 166 Mullaney v. Wilbur (1975) 421 U.S. 684 2.00.00. eee 115 Myersv. Yist (9" Cir. 1990) 897 F.2d 417 .............0000.. 219, 235 New Jersey v. Muhammad (N.J. 1996) 678 A.2d 164 .............. 268 Old Chiefv. United States (1997) 519 U.S.172 ........ 0.000020 ee 70 Oregon v. Guzek (2005)US.eeeeee 304, 305 Payne v. Tennessee (1991) 501 U.S. 808 .......... 75, 97, 251, 255-256, 263-264, 266 Penner v. County ofSanta Barbara (1995) 37 Cal.App.4th 1672 ..... 106 Penry v. Johnson (2001) 532 U.S. 782 2...cee275 Penry v. Lynaugh (1989) 492 U.S. 302 .............. 76, 97, 275, 278 People v Bacigalupo (1993) 6 Cal.4th 857 2.0.0... 0.2 eee. 179 People v. Adcox (1988) 47 Cal.3d 207 ............. 0200005 183, 289 People v. Allen (1977) 65 Cal.App.3d 426 ...............004. 96, 106 People v. Allen (1986) 42 Cal.3d 1222 ............. 195, 230-232, 234 People v. Alvarez (1996) 14 Cal.4th 155 2.0.0... eee 263 People v. Anderson (2001) 25 Cal.4th 543 00.0... ...0...00. 195, 297 People v. Andrews (1989) 49 Cal.3d 200........... 0.000000 eee 282 XVIil People vy. Andrian (1982) 135 Cal.App.3d 335 .............0..006. 275 People v. Ansbro (1984) 153 Cal.App.3d 275 ...... 0. ccc cceeeee. 115 People vy. Arguello (1966) 244 Cal.App.2d 413 .................00. 95 People v. Ashmus (1991) 54 Cal.3d 932 ................005. 308, 309 People v. Bacigalupo (1993) 6 Cal.4th 457 .... 0.2... .0..000.,. 252, 257 People v. Bean (1988) 46 Cal.3d919 2.0.2... eee eee 68 People v. Beardslee (1991) 53 Cal.3d68............. 0.200205. 73-74 People v. Bittaker (1989) 48 Cal.3d 1046 ................. 00045. 183 People v. Bolin (1998) 18 Cal.4th 297.1... 0...eeeee 204 People v. Bottger (1983) 142 Cal.App.3d 974 ..............0.0005 276 People v. Boyette (2002) 29 Cal.4th 381 ......... 0.0.0.0. c eee eee 261 People v. Bradford (1997) 15 Cal4th 1229 ................ 76, 98, 127 People v. Breaux (1991) 1 Cal.4th 281 2.0.0.0... 0.0.0.0... ce eee 117 People v. Brown (1981) 116 Cal.App.3d 820 .................005. 95 People v. Brown (1985) 40 Cal.3d 512 ......... 149-150, 293, 297, 306 People v. Brown (1988) 46 Cal.3d 432 ............. 194, 283, 308-309 People v. Brown (Brown I) (1985) 40 Cal.3d 512 ............. 195, 298 People v. Brownell (Ill. 1980) 404 N.E.2d 181 ............00...0.. 223 People v. Bui (2001) 86 Cal.App.4th 1187 ..............00.0.00.8. 106 People v. Bull (Mll.1998) 705 N.E.2d 824..... 0... 0.0.0. c eee eee 236 People v. Bunyard (1988) 45 Cal.3d 1189.0... 00.00... 00.000.008. 74 X1X People v. Bynum (1971) 4 Cal.3d 589 0...ee278 People v. Cahill (1993) 5 Cal.4th 478 0.0.0.0... eee 76, 98 People v. Caro (1988) 46 Cal.3d 1035 2.2.2.0... 2c. eee 150 People v. Carrera (1989) 49 Cal.3d 291 0.0.0.0... eee ae 119 People v. Carter (1957) 48 Cal.2d 737 2.0... 0... cece 107 People v. Cash (2002) 28 Cal.4th 703 ....... 0.0.0.0 cece eee 127 People v. Castillo (1997) 16 Cal.4th 1009... 0.0... eee eee 301 People v. Catlin (2001) 26 Cal.4th 81 .................0.. 65, 71, 261 People v. Clark (1990) 50 Cal.3d 583.0... 2.0... 0.0.0.2 eee ee 145, 263 People v. Clay (1964) 227 Cal.App.2d 87.0.0... 00.0... 0c cece eee 95 People v. Coddington (2000) 23 Cal.4th 529 .................. 110, 112 People v. Cole (1956) 47 Cal.2d 99.0...eee94 People v. Cole (2004) 33 Cal.4th 1158 .................... 65, 69, 77 People v. Coleman (1969) 71 Cal.2d 1159 1.0... 0.0.0.0. ....00048. 303 People v. Cook (1905) 148 Cal. 334 ....... 0... eee eee. 301 People v. Cooper (1991) 53 Cal.3d. 771 ..............0.000.0. 74, 297 People v. Costello (1943) 21 Cal.2d 760 ............. 00.0.0 e ee 294 People v. Costello (1943) 21 Cal.2d 760 ........ 0.2... 0. eee ee ee 294 People v. Cox (1991) 53 Cal.3d 618 2.0.0... 0... eee eee 269, 303 People v. Crittenden (1994) 9 Cal.4th 83 ........... 0.00005. 126, 165 People v. Croy (1985) 41 Cal.3d 1.0.0... .ccc72 XX People v. Cummings (1993) 4 Cal.4th 1233 2.0... 2... eee ee 70 People v. Cunningham (2001) 25 Cal.4th 926 ................ 116, 127 People v. Daniels (1991) 52 Cal.3d 815 22.0.0... 0.00... .0005. 69-70 People v. Davenport (1985) 41 Cal.3d 247 ...... 0... e cee eae, 226 People vy. Davis (1965) 62 Cal.2d 791 20.0...ee eee 94 People v. De Leon (1992) 10 Cal.App.4th 815 ................0.5. 74 People v. Deeney (1983) 145 Cal.App.3d 647 ................2005. 69 People v. DeSantis (1992) 2 Cal.4th 1198.0... 0.0.00... .. 00. 303 People v. Dillon (1984) 34 Cal.3d 441 0.0.0.0... 0 eee eee 180 People v. Donaldson (1995) 36 Cal.App.4th 532 ................. 264 People v. Duncan (1991) 53 Cal.3d 955 ............. 74, 199, 294, 298 People v. Dunlap (Colo. 1999) 975 P.2d723 ..... 0.0.0. eee eee 265 People v. Dyer (1988) 45 Cal.3d 26 .......... 0.0.0 cece eee 183 People v. Easley (1983) 34 Cal. 3d 858................. 226, 282, 297 People v. Edelbacher (1989) 47 Cal.3d 983 ............. 179, 297, 226 People v. Edwards (1991) 54 Cal.3d 787 ............... 251-252, 260 People v. Elder (1969) 274 Cal.App.2d 381 ........ 0.0.00... eee 69 People vy. Ewoldt (1994) 7 Cal.4th 380 ......... 0.0.00... cee ee eee 65 People v. Fairbank (1997) 16 Cal.4th 1223 .............. 191, 194, 217 People vy. Falsetta (1999) 21 Cal.4th 903 1.0.0.0... 0.0.0.0 000 eee 70 People v. Farnam (2002) 28 Cal.4th 107 ...... 0.0.0... 00. e eee 194 Xxi People v. Fauber (1992) 2 Cal.4th 792 1.0.0.0... 0.0... 125, 218 People v. Feagley (1975) 14 Cal.3d 338 ........... 0.0... e eee 210 People v. Fields (1983) 35 Cal.3d329 ........ 0.0... cee eee eee 145 People v. Fierro (1991) 1 Cal.4th 173 .............. 224, 252-256, 262 People v. Flores (1960) 177 Cal.App.2d 610................0.00. 122 People v. Fries (1979) 24 Cal.3d 222 ....... 0.0... eee eee 71-72 People v. Fudge (1994) 7 Cal.4th 1075 1.0... ..... 00.0.0... eee 116 People v. Garceau (1993) 6 Cal.4th 140.0... 2.0... 263 People v. Ghent (1987) 43 Cal.3d 739.0... 0... een ee 126 People v. Goodridge (1969) 70 Cal.2d 824 ...............0 2000000 78 People v. Gordon (1990) 50 Cal.3d 1223 ................2220050. 250 People v. Grant (1988) 45 Cal.3d 829... 2... kee eee 150 People v. Griffin (2004) 33 Cal.4th 536 .................0... 201, 212 People v. Guerrero (1976) 16 Cal.3d 719 1.0.0... cece eee ees 65 People v. Hall (1980) 28 Cal.3d 143 1.0... 0.0. eee eee 275 People v. Hamilton (1989) 48 Cal.3d 1142 .................. 174, 226 People v. Hardy (1992) 2 Cal4th 86 20.0... 0.eee 183 People v. Harvey (1991) 233 Cal.App.3d 1206 ..............0.0005. 94 People v. Haskett (1982) 30 Cal.3d 841 2.0.0... .... 00... c eee eae 282 People v. Haskett (1982) 30 Cal.3d. 841 ............... 0002000005 297 People v. Hawthorne (1992) 4 Cal.4th 43 ............... 116, 208, 219 XX11 People v. Hayes (1990) 52 Cal.3d 577 ........... 67-68, 208, 215, 219 People v. Heard (2003) 31 Cal.4th 946 ................. 126-129, 153 People v. Hernandez (1988) 47 Cal.3d 315 ................0.0. 73, 299 People v. Hernandez (2003) 30 Cal.4th 835 .......... 00... ..0005 197 People v. Hill (1992) 3 Cal.4th 959.0...eee 127 People v. Hillhouse (2002) 27 Cal.4th 469 .................. 147, 180 People v. Hogan (1982) 31 Cal.3d 815 1.0.0.0... 00.0.0 e ee eee 90-91 People v. Hong (1998) 64 Cal.App.4th 1071 ................2004. 122 People v. Hope (Ill. 1998) 702 N.E.2d 1282 ............. 264-265, 268 People v. Hoze (1987) 195 Cal.App.3d 949... 0.0.0.0... cee ee eee 71 People v. Hunter (1989) 49 Cal.3d 957 0.0...eee302 People v. Jack (1981) 213 Cal.App.3d 913 ...............0.0005. 122 People v. Jackson (1990) 49 Cal.3d 1200 ................ 00000 ee 302 People v. Jackson (1996) 13 Cal.4th 1164..................00008. 297 People v. James (2000) 81 Cal.App.4th 1343 ..................04. 70 People v. Jeffers (1996) 41 Cal.App.4th 917 ..................0.. 279 People v. Johnson (1992) 3 Cal.4th 1183 ................... 297, 298 People v. Jones (1998) 17 Cal.4th 279 2.0.0...eeeee, 115 People v. Kaurish (1990) 52 Cal.3d 648 2.0.0... 0.0... cee eee 136 People v. Kelley (1980) 113 Cal.App.3d 1005 ..................... 294 People v. Kelly (1976) 17 Cal.3d 24 2.0.0... eee ae, 91, 96 Xxiil People v. Kelly (1990) 51 Cal.3d931 0.0.0.0... 0. eee eee eee 302 People v. Kelly (1992) 1 Cal.4th 495.0... eee eee 45, 78 People v. Key (1984) 153 Cal.App.3d 888 ....... 20.2... 00.00.0000 ee 71 People v. Kipp (1998) 18 Cal.4th 349 22.0...eee 65 People v. Kirkpatrick (1994) 7 Cal.4th 988 ............0......00.. 166 People v. Kraft (2000) 23 Cal.4th 978.00...eeeee 275 People v. Kronemyer (1987) 189 Cal.App.3d314 ................. 108 People v. LaFargue (1983) 147 Cal.App.3d 878 ................4. 278 People v. Lavergne (1971) 4 Cal.3d 735 ........pee 69, 96 People v. Lawley (2002) 27 Cal.4th 102 ..................0.. 92, 305 People v. Lewis (2001) 25 Cal.4th 610 ..... 2.0... 0... 66, 98 People v. Little (1993) 19 Cal.App.4th 449 .. 00.0.2... eee 122 People v. Louis (1986) 42 Cal.3d969 ........ 00. eeee 76 People v. Lucero (1988) 44 Cal.3d 1006 ................040.. 226, 308 People v. Marks (2003) 31 Cal.4th 197.000.0000. .0..0...0..0..00. 261 People v. Marshall (1990) 50 Cal.3d.907 .................02000. 224 People v. Martin (1986) 42 Cal.3d 437 2.0.0.0... 00.0.0 c eee eee 218 People v. Martin (2000) 78 Cal.App.4th 1107 ..................... 110 People v. Mata (1955) 133 Cal.App.2d 18 ..................2004 294 People v. Mayfield (1997) 14 Cal.4th 668 .....................4.. 93 People v. McDonald (1984) 37 Cal.3d 351 ............... 96, 108, 119 XX1V People v. McGee (1991) 232 Cal.App.3d 620 ..................0.. 122 People v. Medina (1995) 11 Cal.4th 694.000.0000... 00. eee 206 People v. Melton (1988) 44 Cal.3d 713 0.0.0.0. ........ 0000. 226, 287 People v. Memro (1995) 11 Cal.4th 786 .............00......0.0. 128 People v. Mendoza (1998) 18 Cal.4th 1114........0.........0000., 110 People v. Mesa (1975) 14 Cal.3d 466 11.00.00... 0.0.00. e eee 122 People v. Mickey (1991) 54 Cal.3d 612 ................. 106, 275, 278 People v. Mickle (1991) 54 Cal.3d 140 ......... 02. ...2 000.0008. 263 People v. Mincey (1992) 2 Cal.4th 408 ..... 00... 0.0.2. 126, 165 People v. Minifie (1996) 13 Cal.4th 1055 ..................0005. 273 People v. Mizchele (1983) 142 Cal.App.3d 686................... 115 People v. Monteverde (1965) 236 Cal.App.2d 630 ................ 275 People v. Moore (1954) 43 Cal.2d 517, 526-29 ............... 294, 295 People v. Morales (1989) 48 Cal.3d 527 .. 0.0.00... eee 180 People v. Murphy (1963) 59 Cal.2d 818 ......... 0.0... 69 People v. Murphy (1974) 35 Cal.App.3d 905 .................... 278 People v. Murtishaw (1989) 48 Cal.3d 1001 ....................4. 299 People v. Nicolaus (1991) 54 Cal.3d 551 0... 2. eee eee 183 People v. Ochoa (2001) 26 Cal.4th 398 ......0........0.000. 127, 173 People v. Odle (1988) 45 Cal.3d 386......... 00.0 cee eee eee 150 People v. Olivas (1976) 17 Cal.3d 236 1.0.0.0... 0.0.00 .0 000 n, 228-229 XXV People v. Osband (1996) 13 Cal.4th 622 ........... 0.0.0.0 000005 305 People v. Page (1991) 2 Cal.App.4th 161 20.0.0... 0.0.0.0... 0.0005. 95 People v. Patino (1984) 160 Cal.App.3d 986 ................005. 273 People v. Pena (1984) 151 Cal.App.3d 462 ......... 0... ......005 276 People v. Perez (1992) 2 Cal.4th 1117 1.2.0.0... 0.0... eee eee 70 People v. Pinholster (1992) 1 Cal.4th 865 ........... 145, 147-148, 170 People v. Poddar (1974) 10 Cal.3d 750.......... 0... eee eee eee 70 People v. Pollock (2004) 32 Cal.4th 1153 ..................0000. 261 People v. Ponce (1996) 44 Cal.App.4th 1380 .................... 279 People v. Prieto (2003) 30 Cal.4th 226 ...... 195, 198-202, 229-230, 233 People v. Quicke (1964) 61 Cal.2d 155 2.0.0.0...eceee 78 People v. Ramirez (1990) 50 Cal.3d 1158 2.0.20... ee eee. 78 People v. Rangel (1992) 11 Cal.App.4th 291 ................ 110, 114 People v. Reyes (1997) 52 Cal.App.4thbe111 People v. Rice (1976) 59 Cal.App.3d 998 .......... 00.0.0. c eae, 294 People v. Rist (1976) 16 Cal.3d 211 2.0... 20.eee71 People v. Robbins (1988) 45 Cal.3d 867 ........ 2.0.00. cc eee 302 People v. Rodriguez (1986) 42 Cal.3d 730 .................. 212, 231 People v. Rollo (1977) 20 Cal.3d 109 2.0.0...eeeeee 71 People v. Roscoe (1985) 168 Cal.App.3d 1093 .................00. 95 People v. Saille (1991) 54 Cal.3d 1103 ......... 103, 105, 109-111, 275 XXVI People v. San Nicolas (2004) 34 Cal.4th 614 ........ 109, 112, 116, 117 People v. Sanchez (1947) 30 Cal.2d 560 ......... 00.000... 002208, 71 People v. Satchell (1971) 6 Cal.3d 28 0.0.0...eee 71 People v. Sears (1970) 2 Cal.3d 180 ........ 0.0.0... .00004 275, 298 People v. Sims (1993) 5 Cal.4th 405 2.0.0... eeeee 76, 98 People v. Slaughter (2002) 27 Cal.4th 1187 .................004. 303 People v. Slocum (1975) 52 Cal.App.3d 867 ................-0000. 108 People v. Slone (1978) 76 CalApp.3d 611 .............0.......0.. 97 People v. Snow (2003) 30 Cal.4th 43 2.0.0.0... 0.00.0... 00000. 195, 198 People v. Spurlin (1984) 156 Cal.App.3d 119 .................... 114 People v. St. Martin (1970) 1 Cal.3d 524 ................0.00005 277 People v. Stanley (1995) 10 Cal.4th 764 ........ 0.0.0.0. 0c eee 181 People v. Steele (2002) 27 Cal.4th 1230 ....... 0.0.0.0... 000000 110 People v. Stewart (1976) 16 Cal.3d 133 2.0.2... eee ee 276 People v. Stewart (2004) 33 Cal.4th 425 ........ 126-127, 129, 134, 136 People v. Superior Court (Engert) (1982) 31 Cal.3d 797 ........... 179 People v. Surplice (1962) 203 Cal.App.2d 784 ............... 128, 153 People v. Taylor (1990) 52 Cal.3d 719 2.0.0.0... 6. cee eee eee 204 People v. Terry (1964) 61 Cal.2d 137 10... 0... eee 303, 307 People v. Thomas (1959) 52 Cal.2d 521 ......0....0. 00.00.0000. 122 People v. Thomas (1977) 19 Cal.3d 630 .....00... 0.0.0.0... ce 210 XXVI1 People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. Peoplev. People v. People v. People v. People v. People v. Thomas (1978) 20 Cal.3d 457 2.0...eee64 Thompkins (1987) 195 Cal.App.3d 244 ................. 307 Thompson(1979) 98 Cal.App.3d 467 ..............0000. 97 Thompson (1980) 27 Cal.3d 303 2.0.0... cece 64 Thompson (1988) 45 Cal.3d 86 .............. 0000 e. 306 Thompson(1990) 50 Cal.3d 134 2.0.0... eee eee 282 Trevio (1988) 200 Cal.App.3d 874 ................0005. 74 Tuilaepa (1992) 4 Cal.4th 569 2.0...eee 260 Valdez (1986) 177 Cal.App.3d 680 .................05. 116 Von Villas (1992) 11 Cal.4th 175 2.00.0... eee ee, 99 Wader (1993) 5 Cal.4th 610... 0.0.0... ee eee 73 Walker (1988) 47 Cal.3d605 ...... 0.0.0... cece ae 183 Warner (1978) 20 Cal.3d 678 ......... 00.0.0 0005. 128, 152 Watson (1956) 46 Cal.2d 818 .......... 77, 99, 119, 120, 308 Weaver (2001) 26 Cal.4th 876 0.0.0.0... 0.0.00. eee, 128 Welch (1999) 20 Cal.4th 701 ............... 77, 99, 153, 170 Wheeler (1978) 22 Cal.3d 258 ..............0.0005. 175, 206 Whitfield (1994) 7 Cal.4th 437... 0... eeee 110 Whitt (1990) 51 Cal.3d 620 ........ 0.0... cece eee 71, 74 Wickersham (1982) 32 Cal.3d 307 .......... 00.2.0 00 00 ee 73 Williams (1970) 11 Cal.App.3d 970... 0.0.2.0... c eee 96 XXVIil People v. Williams (1980) 103 Cal.App.3d 507 ................4-. 122 People v. Williams (1992) 3 Cal.App.4th 1326 ...............0..... 91 People v. Williams (1997) 16 Cal.4th 635 ... 0.00... ec cece eee eee 110 People v. Worthy (1980) 109 Cal.App.3d 514 ...............0008. 116 People v. Yeoman (2003) 31 Cal.4th 93.0.0... 0.0.0... 0 cee eee eee 65 People v. Yu (1983) 143 Cal.App.3d 358.2... 0.00.0... eee eee 96 People v. Zemavasky (1942) 20 Cal.2d 56 .......... 0.00000 c ee eae 99 Presnell v. Georgia (1978) 439 U.S. 14 2.0...eee 209 Price v. Superior Court (2001) 25 Cal.4th 1046 .................. 110 Proffitt v. Florida (1976) 428 U.S. 242 2.0.0.0... eee eee 223, 216 Pulley v. Harris (1984) 465 U.S.37 2.0.0.0... cc cece ee 181, 221 Reagan v. United States (1895) 157 U.S. 301 2.0.0... eee 294 Reid v. Covert (1957) 354 U.S. 1 oo... ccc eens 232 Richardson v. United States (1999) 526 U.S. 813 ..............4.0. 207 Richmondv. Lewis (1992) 506 U.S. 40 ..... 0... ...0 00.000 259, 260 Ring v. Arizona (2002) 536 U.S. 584............ 191, 196-203, 205-208 Roper v. Simmons (2005) _ U.S. ____ [125 S.Ct. 1183, 1198] ..... 238 Rosales-Lopez v. United States (1981) 451 U.S. 182 ...........0... 175 Sabariego v. Maverick (1888) 124 U.S. 261 ............0......4.. 236 Salazar v. State (Tex. Ct. Crim. App. 2002) 90 S.W.3d 330 ......... 269 Sandstrom v. Montana (1979) 442 U.S. 510 . 0.0... eee eee. 75 XX1X Santosky v. Kramer (1982) 455 U.S. 745 10... eee. 203, 210-211 Satterwhite v. Texas (1988) 486 U.S. 249 ...............00.. 272, 282 Sherman v. State (Nev. 1998) 965 P.2d 903 ................0000. 265 Short v. State (Ok.Crim.App. 1999) 980 P.2d 1081 ................ 269 Skinner v. Oklahoma (1942) 316 U.S. 535 oo... eee 229 Skipper v. South Carolina (1986) 476 U.S.1 20.0... ee eee. 277-278 South Carolina v. Gathers (1989) 490 U.S. 805 ..............000. 251 Spaziano v. Florida (1984) 468 U.S. 447 2.0...cee 290 Speiser v. Randall (1958) 357 U.S. 513.0... 0.0 ee eee 208, 210 Spencer v. Texas (1967) 385 U.S. 554.0...ee 75, 307 Stanford v. Kentucky (1989) 492 US. 361 2.0.0.0... cee eee 236 State v. Bernard (La. 1992) 608 So.2d 966 ......... 0.00.00. cee 256 State v. Bigbee (Tenn. 1994) 885 §.W.2d 797... 0... 0.2. ee eee 265 State v. Bobo (Tenn. 1987) 727 8.W.2d 945 1.0... eee 225 State v. Dixon (Fla. 1973) 283 So.2d 1 2.0.0... 0.0... 223 State v. Nesbit (Tenn. 1998) 978 S.W.2d 872 ................ 265, 268 State v. Pierre (Utah 1977) 572 P.2d 1338 ......... 0.0.0.0 0 0 eee 223 State v. Richmond (Ariz. 1976) 560 P.2d 41 ........... 0... 000005 223 State v. Ring (Az., 2003) 65 P.3d 915 ..............004. 193, 199, 200 State v. Rizzo (Conn. 2003) 833 A.2d 363 2... 0... eee 213 State v. Simants (Neb. 1977) 250 N.W.2d 881 ........... 0.00005. 193 XXX State v. Stewart (Neb. 1977) 250 N.W.2d 849 2.0... eee 193 State v. Taylor (La. 1996) 669 So.2d 364 ............. 000000000. 270 State v. White (Del. 1978) 395 A.2d 1082 ........ 0.0.0.0. c eee 219 State v. White (Ohio 1999) 709 N.E.2d 140....... 02.0... .000 0005 265 State v. Whitfield (Mo. 2003) 107 S.W.3d 253 22.0.2... . 0. eee ae 200 Stringer v. Black (1992) 503 US. 222 ............0...4. 227, 259, 260 Sullivan v. Louisiana (1993) 508 U.S. 275 2...ees 77 Taylor v. Illinois (1988) 484 U.S. 400 ......... 0.0... eee eee eee 115 Tennard v. Dretke (2004)U.S.ccceee 304 Thompson v. Oklahoma (1988) 487 U.S. 815 ............024. 222, 236 Townsend v. Sain (1963) 372 U.S. 293... 00... .00.00..lee e eee 217 Trop v. Dulles (1958) 356 U.S. 86 2.6...ene237 Tuilaepa v. California (1994) 512 U.S. 967 ........ 183, 199, 228, 257, 260-261, 286-287, 291 Turner v. Murray (1986) 476 U.S. 28 2.00.ceeee 232 United States v. Escobar de Bright (9" Cir. 1984) 742 F.2d 1196 ..... 307 United States v. Glover (D. Kan. 1999) 43 F.Supp.2d 1217 ......... 269 United States v. Sotelo-Murillo (9" Cir. 1989) 887 F.2d 176.......... 307 Valerio v. Crawford (9" Cir 2002) 306 F.3d 742 .............. 286, 288 Wainwright v. Witt (1985) 469 U.S. 412 ........ 124, 126-129, 137-138, 150-153, 165, 167, 170, 174-176 Walton v. Arizona (1990) 497 U.S. 639.006.eee 191 XXX1 Wardius v. Oregon (1973) 412 U.S. 470 20.eee294 Washington v. Texas (1967) 388 US. 14.00.00... 0.0.00 cee 115 Webb v. Texas (1972) 409 U.S.95 ooees 115 Westbrook v. Milahy (1970) 2 Cal.3d 765 2.0.0.0... 0... eee 229 Witherspoonv.Illinois (1968) 391 U.S.510 ......... 125-126, 134, 137, 145-146, 150-153, 174-176, 282-283 Woldt v. People (Colo.2003) 64 P.3d 256 ....... 0.0.0... 0 ce cee 200 Woodson v. North Carolina (1976) 428 U.S. 280 .... 226, 211, 232, 257, 282, 290, 299 Yates v. Evatt (1991) 500 U.S. 391 2.0... ee, 76-77, 98, 119, 308 Zant v. Stephens (1983) 462 U.S. 862 .......... 179, 226, 232, 256, 285 STATUTES Evidence Code section 210.0...ecee et nee nee eens 108 section 352 ..............c eee eee 5, 48-97, 240-241, 266-267 section 720 1.0...cc cece eee nent enee 90, 107 section 801.1...ceeene eeeeeae 94 section 1101 .... 0...eeeeee en eeea 49 section 1108 2.0...tenes 51, 52 Penal Code section 22 .. 0...cee eee cece eee n eens 109 section 25 1...ccceee ene cent nnnnes 109 section 28 2.0...cccect eee n nen nnnes 109 section 29 2...ecec eee net ee en eens 103 section 188 ... 0...ete te enn e teenies 109 section 189.0... 0...ence eee eens 109 XXX section 190.0...ceee eee ees 195 section 190.2 .. 0...eee eee eee eens 178 section 109.3 ........... 0... eee eee 182-183, 189, 194-199, 220, 223, 225, 233, 240-241 244, 251-257, 260-264, 266, 286-289, 293, 306, 309 section 190.4... 0...eee eee eee eee 231 section 1127...1.eeeee eee 278 section 1158 .... 0...eeeeee 230 section 1158a ..0...eee230 section 1170oeee eee eee 218 section 1213 2...cceee eee eee 122 section 1213.5 .. 0...eeeeens 122 section 1259 1...eeeene 72 CALIFORNIA RULES OF COURT mule 4.421 2...cccc ec ee eee eee ne nennunee 233 tule 4.423 0... 0.ecec eee cece eee been aenes 233 CALIFORNIA CODE OF REGULATIONS Title 15, California Code of Regulations § 2280 .................. 218 UNITED STATES CONSTITUTION 6" Amendment .................00ceeee 55, 102, 115-116, 124-129, 151, 174-175, 182, 189, 192, 195, 198-209, 215, 217-218, 220, 224-226, 234 8" Amendment .............. 76, 98, 102, 115, 124, 149, 151, 177-178 182-183, 189, 202, 204-206, 209, 212-215, 217-218, 220, 221, 224-227, 235, 237-241, 251, 254-255, 257-258, 260, 262, 266, 277-278, 285, 293, 304, 309 14" Amendment .................... 55, 75-76, 97-98, 102, 115-116, 124-125, 129, 151, 174, 177-178, 182, 189, 192, 200, 204-206, 209 213, 215, 217-219, 224-226, 233, 235, 239, 241, 266, 294, 304 XXXIli CALIFORNIA CONSTITUTION article I, section 17 2...eeeeee 240 article I, section 28 2.0.0...eeeeens 108 JURY INSTRUCTIONS CALJIC No. 1.00 2.0...ceceeens 281 CALJIC No. 2.00 0.0...ccceee eee eee 280 CALJIC No. 2.03 0...cccee eee eens 306 CALJIC No. 2.27 0.cence eee eee e eee 280 CALJIC No. 2.50 2...cetee eee en eees 71 CALJIC No. 2.70 2...ceeee eee eee 306 CALJIC No. 2.71 2...eeeee eee e eee nes 306 CALJIC No. 2.80 0.0.0...cee eee eee eens 81 CALJIC No. 4.21.1 00.00ceceeee 120 CALJIC No. 8.84.1...ceceeee eee 280 CALJIC No. 8.85 2.00.ceceeee ee een aes 280 ~ CALJIC No. 8.88 2.00.ceceeee eens 183 CODE 21 U.S.C. § 84800ccceens 206 OTHER STATE STATUTES Ala. Code § 13A-5-45 000.ceeeen ees 193 Ala. Code §§ 13A-5-46, 47 2000.eens219 Ala. Code § 13A-5-53 2.teens 219, 223 Ariz. Rev. Stat. Ann. § 13-703 ........... 000. .000008, 193, 197, 219 Ark. Code Ann. § 5-4-603 20.0000ees 193, 219 Colo. Rev. Stat. Ann. § 16-11-103 ........ 0.000.000.0000 ..0000. 193 Conn. Gen. Stat. Ann. § 53a-46a ............0..0.0..00000. 193, 219, 223 Del. Code Ann.tit. 11, §4209.......................00.05. 193, 223 Fla. Stat. Ann. § 921.141... 0.0.0.eens220 Ga. Code Ann. § 1710-30 1.0...cee 193, 220 Ga. Code Ann. § 1710-35 20...ccceens 223 XXXIV Ga. Code. Ann. § 27-25372...ene223 Idaho Code § 19-2515 . 2...2.nes 193, 220 Idaho Code § 19-2827 .. 0...cette223 Ill. Ann. Stat. ch. 38, para. 9-1 0.eeenee 193 Ind. Code Ann. §§ 35-50-2-9 00...eee 193 Ky. Rev. Stat. Ann. § 532.025... 0.0... eee ee 193, 220 Ky. Rev. Stat. Ann. § 532.075 2.0.0...eee nee 223 La. Code Crim. Proc. Ann. art.905.3 00.0.0... cece 193 La. Code Crim. Proc. Ann. art. 905.7 20... .0. 000.0 220 La. Code Crim. Proc. Ann. art. 905.9.1 0.0.0.0... 0... cee eee 223 Md. Ann. Code art. 27, §§ 413 2...ccees 193, 220 Miss. Code Ann. § 99-19-103 2.0.0... . cece ee eee 193, 220 Miss. Code Ann. § 99-19-105 2...cceens 223 Mont. Code Ann. § 46-18-306 2.0... 0.0... cece eee 220 Mont. Code Ann. § 46-18-310 2.0.0...cccee 223 Neb. Rev.Stat. § 29-2521.01 2.0.0...eeecee es 223 Neb. Rev. Stat. § 29-2522 20...ceeens 220 Nev. Rev. Stat. Ann. § 175.554 20000ee 193, 220 Nev. Rev.Stat. Ann. § 177.055 2.0.0...ccs223 Nev. Rev. Stat. § 200.030 2.0... cee288 N.H.Rev. Stat. Ann. § 630:5 2...eee 220, 223 N.JS.A.2C:11-3¢ 0.eectene ens 193 N.M.Stat. Ann. § 31-20A 2...eee 193, 220, 223 N.C.Gen.Stat §15A-2000 2.0...0.eens223 Ohio Rev. Code § 2929.04 0.0... ccc cette 193 Ohio Rev. Code § 2929.05 2.0... ccc eee eens 223 Okla. Stat. Ann. tit. 21, § 701.11 .......0......0..0...0....08. 193, 220 XXXV 42 Pa. Cons. Stat. Ann. § 9711 ..... 0.0.0.0... 00. ea ee, 193, 220, 223 S.C. Code Ann. §§ 16-3-20 .............-.....ee 193, 220 S.C. Code Ann. §§ 16-3-25 2.0.0ees223 S.D. Codified Laws Ann. § 23A-27A-5 ..... 0.0.0.0... cece 193, 220 Tenn. Code Ann. § 39-13-204 ..... 00...eee 193, 220 Tenn. Code Ann. § 39-13-206 .. 0.2.0... .ceees 223 Tex. Crim. Proc. Code Ann. § 37.071 ........0. 0.000000. eee 193, 220 Va. Code Ann. § 17.110.) 2.0.0...ceeee 223 Va. Code Ann. § 19.2-264.4 0.0...ccceens 193, 220 Wash. Rev. Code Ann.§ 10.95.060(4) .......... 0.0.0... 00 000 ee 193 Wash.Rev. Code Ann. § 10.95.130 ........... 0... cece eee 223 Wyo.Stat. §§ 6-2-102. 2...een 193, 220 Wyo. Stat. §§ 6-2-1038. 2.eens223 SECONDARY AUTHORITIES Goldstein, The State and the Accused: Balance ofAdvantage in Criminal Procedure (1960) 69 Yale L.J. 1149 .......... 294-296 Kozinski and Gallagher (1995) Death: The Ultimate Run-On Sentence, 46 Case W. Res. L.Rev. 1,30 ................... 239 Shatz and Rivkind (1997) The California Death Penalty Scheme: Requiemfor Furman?, 72 N.Y.U. L.Rev. 1283 ...... 181 Soering v. United Kingdom: Whether the Continued Use ofthe Death Penalty in the United States Contradicts International Thinking (1990) 16 Crim. and Civ. Confinement 339 ......... 235 Stephen Shatz & Nina Rivkind, The California Death Penalty Scheme: Requiemfor Furman? (1997) 72 N.Y.U. L.Rev. 1283 22...eeeene tenes 289 XXXVI Stevenson, The UltimateAuthority on the Ultimate Punishment: The Requisite Role ofthe Jury in Capital Sentencing (2003) 54 Ala L. Rev. 1091 ..... Lee ence cette tenet e eens 200 XXXVII IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, _) ) No. 8076721 Plaintiffand Respondent, ) ) Riverside County V. ) Superior Court ) No. RIF73193 WILLIAM ALFRED JONES,JR., ) ) Defendant andAppellant. ) ) Automatic Appeal From the Superior Court of Riverside County Honorable Robert G. Spitzer, Judge APPELLANT’S OPENING BRIEF STATEMENT OF APPEALABILITY This is an automatic appeal, pursuant to California Constitution,article VI, section 11, and Penal Code section 1239, subdivision (b), from a conviction and judgment of death entered against appellant, William Alfred Jones, Jr. (hereinafter “appellant”), in Riverside County Superior Court on February 8, 1999. The appealis from a final judgment followingajury trial and is further authorized by Penal Code section 1237, subdivision (a). STATEMENT OF THE CASE PRE-TRIAL PROCEEDINGS An indictmentfiled on February 18, 1997, charged appellant with the June 19, 1996, murder of Ruth Eddings (Pen. Code, § 187), and alleged that the murder was committed during the course of rape, sodomy and burglary (Pen. Code, § 190.2, subd. (a)(17)). Appellant was also charged with arson with respect to a fire occurring at Ms. Eddings’ residence on that same date (Pen. Code, § 451, subd. (b)). (1 CT 1-2.) The indictmentfurther alleged that appellant had suffered twoprior “Strike” convictions (Pen. Code, § 667, subd. (c)-(e)), and one prior serious felony conviction (Pen. Code, § 667, subd. (a)), for which he had served a prior prison term (Pen. Code, § 667.5). (CT 2-4.) On March 3, 1997, appellant entered pleas of not guilty to the charges, and denied the enhancementallegations. (1 CT 9.) Several motions werelitigated priorto trial including a defense motion to exclude statements appellant made during three police interviews, one conducted at his home and two conducted at the police station. With regard to the statements made during the first interview at appellant’s house, the motion was madeon the groundthat, although appellant was in custodyat the time, police failed to advise him ofhis rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. The statements made during the interrogation sessions at the police station were argued to be inadmissible on two grounds: first that they were taken after appellant invoked his right to counsel, and secondthat they were involuntary. (3 CT 587.) Appellant also filed a companion motion to recuse Deputy District Attorney Patricia Erickson because she waspresent during the interrogation sessionsat the station and was,therefore, a percipient witness in the case. (3 CT 631.) The prosecution filed opposition to these motions on August 11, 1998 (3 CT 646, 685), and the matter was heard on August 17 (4 CT 881; 4 RT 358-422), October 6 (4 CT 960; 6 RT 450-466), October 7 (5 CT 1357; 6 RT 467-476), and October 13, 1998 (6 CT 1550: 7 RT 477-572). The trial court ultimately denied appellant’s motion to exclude his statements on all grounds (6 CT 1550; 7 RT 537-548), and denied the motion to recuse Deputy District Attorney Erickson (7 RT 561-568). The defensealso filed a motion to exclude evidence of uncharged acts on August 7, 1998. (3 CT 541.) The prosecution filed, on August 11, 1998, amemorandum ofpoints and authorities in support ofintroduction ofevidence pursuant to Evidence Code section 1101, subdivision (b). (3 CT 665.) A supplemental memorandum of points and authorities in support of the introduction ofevidence pursuant to Evidence Code section 1101, subdivision (b), wasfiled by the prosecution on August 14, 1998. (4 CT 876.) Appellant filed a response to the People’s motion to introduce additional evidence of uncharged acts on October 1, 1998. (4 CT 940.) The matter was heard on October 14, 1998 (6 CT 1552; 8 RT 573-609), at which time the court ruled that some of the evidence the prosecution sought to introduce would be admissible at both the guilt and penalty phases oftrial and some would be excluded from the guilt phase. The question of admissibility of the excluded evidence at the penalty phase wasreserved until a later date. (8 RT 593-595, 601-602.) Jury selection in the case began on October 19, 1998 (6 CT 1579), and lasted for six days. The jury was sworn on October 29, 1998. (16 CT 4517.) GUILT On November3, 1998, the trial court read preliminary instructions to thejury (16 RT 1677-1688), and the parties presented their opening statements (16 RT 1690, 1694). (17 CT 4560.) The prosecution thereafter began presentingits case-in-chief. (16 RT 1711.) After five days of testimony, the prosecution rested its case on November 10, 1998. (17 CT 4823; 20 RT 2162.) | Prior to the presentation of defense evidence, the prosecution objected to proposed defense evidence relating to appellant’s psychological condition including proposed testimony of a psychologist describing and explaining appellant’s personality disorder and the effects ofalcoholintoxication on him. The trial court sustained the objection and prohibited appellant from calling G o his expert witness. (20 RT 2153.) Appellant then began his case-in-chief. (17 CT 4823; 20 RT 2165.) The defense evidence took six days to present (17 CT 4823-4856), and appellant testified on his own behalf (17 CT 4834, 23 RT 2500-2510, 24 RT 2545-2612). Appellant then renewedhis requestto call his expert witness (25 RT 2651), but the request was again denied (25 RT 2652-2655). The court also granted the prosecution’ request to strike defense evidence regarding appellant’s earlier hospitalizations for mental health treatment. (25 RT 2655-2656.) The prosecution’s case in rebuttal was conducted on November 19, 1998. (18 CT 4856; 25 RT 2670.) On November 23, 1998, the parties presented their closing arguments, and the court instructed the jury. (18 CT 4861; 26 RT 2780-2913.) The jury retired to commence deliberationsat 2:45 p.m. that day (18 CT 4862), and returned verdicts the following day at 3:23 p.m. finding appellant guilty on both counts and finding all of the special circumstances and enhancement allegations to be true (18 CT 4863, 4865- 4872). Each juror waspolled as to his or her verdict, and ordered to return on December 1, 1998, when the penalty phase of trial was set to begin. (18 CT 4863.) THE PENALTY PHASE On November 25, 1998, the parties and the court met to discuss potential issues regarding the penalty phase. (18 CT 4883, 4897; 27 RT 2934- 2960.) The discussion continued the following day with respect to specific issues including the admissibility of proposed prosecution evidence relating to prior crimes and victim impact.’ (18 CT 4897; 28 RT 2961-3006.) The ' The court reviewed the following written motions filed by the parties on this issue: Prosecution Motion to Admit Witness Statements at Trial as Spontaneous Declarations Pursuant to Penal Code section 1240 filed on 4 defense objected to the proposed evidence on several grounds including relevance, hearsay, denial of the nght to confrontation, and Evidence Code section 352. (28 RT 2979-2982.) The court rendered a tentative decision, but deferred final ruling until after a foundational hearing (28 RT 2983-2986), which was conducted the following day (18 CT 4979; 29 RT 3007). After listening to testimony, and the arguments of counsel, the court overruled the defense objection and held that the prosecution’s proposed evidence was admissible. (18 CT 4979; 29 RT 3013-3016, 3033-3039.) Following the foundational hearing, the prosecution and defense presented their opening statements to the jury. (18 CT 4979; 29 RT 3048, 3051.) The prosecution then presented its evidence in aggravation over the courseofthree days, December1, 2, and 3, 1998. (18 CT 4979-5000.) The defense evidence in mitigation was. presented on December3, 7, 8, and 9, 1998. (18 CT 5000-5045.) Closing arguments were given by the parties on December 10, 1998. (18 CT 5053; 34 RT 3822, 3844, 3878, 3889.) Thetrial judge then instructed the jurors. (34 RT 3898.) Jury deliberations began at 2:25 a.m. on December 10, 1198 (18 CT 5053), and continued on December 14, 1998 (18 CT 5055). On December 15, 1998, at 11:45 a.m., the jury returned a verdict fixing the penalty for the murder at death. (18 CT 5064.) August 6, 1998 (2 CT 363); Defense Motion to Exclude Evidence of Uncharged Acts and for Evidentiary Hearing filed on August 7, 1998 (3 CT 541); Prosecution Memorandum of Points and Authorities in Support of Introduction of Evidence Code section 1101, subdivision (b)filed on August 11, 1998 (3 CT 665); Prosecution Supplemental Memorandum ofPoints and Authorities in Support ofIntroduction ofEvidence Pursuant to Evidence Code section 1101, subdivision (b), filed on August 14, 1998 (4 CT 876); Defense Response to People’s Motion to Introduce Additional Evidence ofUncharged Acts filed on October 1, 1998 (4 CT 940). (28 RT 2975.) 5 On February 8, 1999,the trial judge conducted an automatic review of the verdict under Penal Code section 190.4, subdivision (e), and concluded the jury’s verdict of death would not be modified. (35 RT 3944-3950.) The court then formally imposed the death sentence as well as a sentence of 25 years to life on the arson charge, and a five year term for the prior serious felony conviction. (19 CT 5149; 5151, 5157-5160; 35 RT 3959-3961.) STATEMENT OF THE FACTS THE GUILT PHASE I. INTRODUCTION During the early morning hours of June 19, 1996, a fire was reported at the residence of 81 year old Ruth Eddings. Ms. Eddings was found dead in her home. Although her body sustained thermal damage, she died before the fire started as the result ofblunt force traumaandpossibly strangulation. She was found unclothed, but had sustained no apparent physical injuries indicative of sexual assault. Appellant, who lived next door with his parents, became the focus of the investigation almost immediately. He was interviewed by homicide detectives and District Attorney Patricia Erickson three times beginning that afternoon. During the course of two interviews conducted on June 19" appellant admitted responsibility for the fire and for Ms. Eddings’ death, but consistently denied any sexual assault took place. After spending the night injail, appellant was interrogated again the following day. During this third interrogation session, appellant admitted putting his penis between Ms. Eddings’ legs and ejaculating; however, he was uncertain whether vaginal or anal penetration had occurred. Because appellant admitted responsibility for the fire and for Ms. Eddings’ death, the central issues to be resolved by the jury related to intent. The defense presented evidence raising questions as to whether appellant harboredthe intent necessary for burglary, attempted rape, attempted sodomy, or murder, and whethereither a rape or a sodomy had occurred. However,the trial court precluded appellant from calling his primary witnessrelatingto this issue, an expert who wasprepared to testify that appellant suffered from a severe personality disorder, that he harbored significant rage, and that he had limited control over his anger which intoxication would further reduce. Questions were also raised as to whether Ms. Eddingsdied as the result of a bear hug and a fall with appellant’s weight on top of her as the defense contended,oras the result of multiple blows as wasthe prosecution’s theory. Amongthe primary disputes below was whether a rape or sodomy occurred. Although there was no physical evidence indicating that vaginal or anal penetration had occurredprior to death, the autopsy surgeon was permitted to testify over defense objectionthat, in his opinion, Ms. Eddings was raped and murdered and that she was raped and sodomizedprior to death. Il. SUMMARYOF THE EVIDENCE A. THE PROSECUTION’S CASE-IN-CHIEF d. The Homicide and Arson Riverside County Sheriff's Deputy Philip Matheny was workingpatrol that morning. (16 RT 1712.) Around 4:20 a.m.he wasinstructedto assist fire departmentpersonnel respondingtoa structurefire, at 17831 Cajalco Road in Mead Valley, with people possibly inside. As he drove to that location, Deputy Matheny observed the fire from about a mile away. (16 RT 1713- 1714.) Fire fighters were on the scene attempting to put out the flames when Deputy Matheny arrived, so he closed off the street and divertedtraffic. (16 RT 1714.) Later California Highway Patrol officers took over control of traffic in the area (16 RT 1715), and other law enforcement personnel, including homicide detectives, fire investigators, and Deputy District Attorney Erickson, took charge of the scene. (16 RT 1720.) California Department of Forestry investigator Wesley Alston arrived between 4:00 and 5:00 that morning, along with Captain Hutchinson of the San Bernardino County Fire Department, and Captain Easton of the county Fire Authority, accompanied by his accelerant detection dog. (16 RT 1723, 1727-1728.) Investigator Alston walked around the outside ofthe structure, which wasa single widetrailer with attached outbuildings, and observedthat the fire had involved only the rear portion of the residence. (16 RT 1728- 1729.) Twoareas of origin were detected; one in the livingroom,and one half way downthe west side of the trailer inside the remains of a door. Thefire had been started with accelerant in these locations. (16 RT 1737-1738.) A book ofmatches wasfoundin the driveway, and a gas can label was observed lying in the Jones’ yard nearthe 6' chain link fence which ran between the two properties. (16 RT 1745-1749,1751.) Ms. Eddings’ unclothed body was found lying face downonthe floor inside the front room of her trailer. (16 RT 1716, 1777-1778.) She had suffered severe thermal] injury, but an autopsy later determined she had,inall probability, died before the fire started since there was no evidenceofsoot in her airways andthe level of carbon monoxide in her blood was within normal limits. (18 RT 1907, 1935.) Ms. Eddings died as the result of multiple injuries consistent with blunt force trauma and strangulation. Her injuries included brokenribs, fractured vertebra, and fractured bonesin her neck. (18 RT 1914-1930.) In the opinion of the autopsy surgeon, the injuries were consistent with tremendous force and would not have resulted from a single blow. (18 RT 1972, 1978.) However, there were no signs of blunt force injury to any of the vital organs. (19 RT 2050, 2054.) During the autopsy a small 4" by 4" piece of cloth was observed protruding from the vaginal cavity. (18 RT 1911.) Oral, rectal, and vaginal swabs were collected. (18 RT 1910.) Although there were nosigns oftrauma to the vaginal or anal canals” (18 RT 1935), the autopsy surgeon waspermitted to testify, over defense objection, that in his opinion Ms. Eddings had been raped and murdered and that she had been raped and sodomized before her death (18 RT 1957-1958). No anatomicfindings established that the cloth was inserted into the vaginapriorto death orthat bodily fluids collected during the autopsy were deposited in the rectal cavity prior to death. (19 RT 1995.) Daniel Gregonis ofthe County ofSan Bernardino Sheriff’ s Department crime lab performed both RFLP(Restriction Fragment Length Polymorphism) and PCR (Polymerase Chain Reaction) analysis on the rectal swab. (17 RT 1789, 1795, 1800; 20 RT 2161-2162.) DNA extracted from the swab contained both a sperm fraction and a non-sperm fraction. (17 RT 1803.) The non-sperm fraction was composed of a primary type and a secondary type. The primary type was matched to Ms. Eddings through PCRtesting. (17 RT 1804.) Appellant could not be excluded as a potential contributor of the secondary type, nor could he be excluded as the contributor of the sperm fraction of the sample, by means of PCRtesting. (17 RT 17 RT 1804-1805.) The frequencyof that particular DNA profile in the general population was calculated to be 1 in 1.9 million Caucasians, 1 in 11 million African Americans, and 1 in 1.4 million Hispanics. (17 RT 1806.) RFLP analysis * Both the vaginal andrectal canals were removedfrom the body during the autopsy and inspected visually; no signs of injury were observed. (19 RT 2009, 2011.) produced a similar result in that appellant could not be excluded as the contributor of the sperm fraction of the sample. (17 RT 1811.) With regard to the RFLP analysis, the statistical probability of a random match was calculated at less than 1 in 5 billion for all racial groups. The combined statistical probability for the PCR and RFLPresults wascalculated at 1 in 10 quadrillion. (17 RT 1813.) 2. Appellant’s Statements to Police As a next-door neighbor, appellant was contacted by oneofthefirst officers on the scene. (16 RT 1719.) He told the officer he was staying with his parents who were in Washingtonandsaid he had been asleep whenthefire started. He had been awakenedbya young lady pounding on his window who told him there wasa fire next door, and he called the fire departmentat her request. (16 RT 1719-1720.) Appellant was contacted at his homelater that afternoon by homicide Detective Eric Spidle who questioned him over a period of about 2 % hours. (20 RT 2101.) During this time they talked at the kitchen table and walked around outside together. (17 RT 1851-1852; 20 RT 2103.) At some point Detective Spidle asked appellant for matches, and appellant gave him some with Camel cigarette advertising on the cover which was the same advertising Detective Spidle had seen on the cover of the matches found earlier in Ms. Eddings’ driveway. A similar book of matches was found in appellant’s bedroom closet. (16 RT 1746-1747, 1758-1759.) Also found on the property was a Blitz brand gas can located near a riding lawn mowerandrototiller under a tarp in the yard. (16 RT 1760-1761.) The label found earlier in the yard near the fence bordering Ms. Eddings’ property was also a Blitz brand. (16 RT 1751,1754.) 10 After talking to appellant at his home Detective Spidle asked him if he would be willing to accompany him to the police station. (17 RT 1852.) Appellant agreed and Detective Spidle drove him to the station, stopping on the way to pick up some food. (17 RT 1852.) Appellant waited in the reception area until Deputy District Attorney Erickson arrived. Around 4:30 p.m. he wastaken into another room for further questioning by detectives and Ms.Erickson. (17 RT 1851; 20 RT 2105.) After appellant was advisedofhis right to counsel and his right to remain silent, and signed a written waiver of those rights, Detective Spidle continued questioning him.*> (17 RT 1852, 1855.) At Detective Spidle’s prompting appellant detailed his activities prior to the fire and explained that he had arrived home from work around 6:00 p.m., then wentto his neighbor Lowell’s house for 20 or 30 minutes. (17 CT 4572, 4575.) Afterward he wentto the store and bought a 12-pack of Bud Light, milk, some gum, and a couple packsof cigarettes. (17 CT 4575-4576.) When hereturned home, he cranked up the radio and drank a couple of beers before going outside to wash construction adhesive off his hands with gasoline. (17 CT 4576-4577.) He broughtthe gas can backto the house when he had finished because he wasnot sure how muchgaswasleft and he needed to use the rototiller the following day. (17 CT 4577.) Detective Spidle inquired whether appellant possibly had too much to drink and accidentally started the fire, but appellant denied having doneso. (17 CT 4578-4580.) Appellant first denied having gone over to Ms. Eddings house that night then said he might have goneover after he washed his hands > A tape of the interview wasplayed for the jury during trial. (17 RT 1867, 1869, 1873-1874, 1895-1896.) A transcript ofthe tape 1s included in the clerk’s transcript. (17 CT 4633-4792.) 11 with the gas. (17 CT 4581-4582.) He said he put the newspaperin the fence that evening for Ms. Eddings after he had read it. (17 CT 4583.) He then remembered going overto check on herlater, saying he knocked on the door and askedif she was alright. She did not cometo the door, but yelled outthat she wasin the tub. (17 CT 4585-4586.) Appellant explained that he had no problems with Ms. Eddings,that he liked her, and that she had always been good to him. He repeatedly denied harming her when the interviewers suggested he might have done so. (17 CT 4611, 4625-4627, 4640.) Asthe questioning continued, Detective Spidle told appellant: “I’m not saying you hurt the woman,I’m saying there wasa fire that started over there and I believe you know what happened. And I’m telling you, if you stepped inside the house last night, you had a few beers, and she didn’tlike it, she got scared, she passed out and somehow, maybe, maybe... .” (17 CT 4660.) He then asked appellant about a scratch on his face and appellant told him it had happened at work. (CT 4670.) Over the course of the 4% hour interrogation session appellant’s demeanorvaried from cooperative and inquisitive to confused, nervous and argumentative. (20 RT 2104, 2118-2120.) At one point he asked Detective Spidle for a gun so he could kill himself. (17 CT 4963.) Twootherdetectives were present during this portion of the interview. One of them, Detective Purkiss, told appellant that he had talked to his brother Donald. Hesaid Donald told him he was afraid something bad was going to happen whenhis parents went away and left appellant alone. Donald said he did not ask appellant whether he had doneit because he thought he had. (17 CT 4695.) After these statements were made, appellant asked to talk to his brother, but the interrogation continued until he admitting starting the fire. (17 CT 4696- 4697.) 12 Appellant said he had a beer on the way home from work that day and had 6 more when he got home. He explained that he went over to check on Ms. Eddingsand foundherlying on the floor naked. (17 CT 4700-4702.) He panicked when he saw blood on her face and went hometo try to think what to do. (17 CT 4704-4705.) Although he could not explain why,he got a gas can and went back to the house and attemptedto start a fire. He said heleft and then went back two more times pouring gasoline and lighter fluid around the houseto set it on fire. It took three tries before the fire began to burn. (17 CT 4708-4715.) Appellant said he had panicked because he knew his fingerprints were in the house. (17 CT 4711.) He did not want to go back to prison, andtold the officers he would rather die.* (17 CT 4694, 4697.) Appellant was asked to explain again what had happened,and hesaid that, after he saw the newspaperin the fence, he went over to check on Ms. Eddings. He had gasoline on his handsat the time. The door was unlocked so he went in and found Ms.Eddings lying nakedon the floor. He went home and sat for a while before deciding to run. (17 CT 4730-4731.) Appellant said he got in his truck and drove off, but as he was driving he began to worry about his fingerprints being discovered in Ms. Eddingstrailer. He went back to the house andtried tostart a fire with lighter fluid. (17 CT 4731.) When he walked out he could see a flame burning, butthe fire did not catch. (17 CT 4732.) Appellant said he went back two more times, once with a jar of gasoline and then with a can of gasoline, before he wasable to start the fire. (17 CT 4736.) Afterthe trailer began to burn he went homeandtook a shower to try to clear his head. (17 CT 4741.) * Specifically, appellant said: “They’ll kill me... . I don’t think I can do it again. I’d rather shoot myself. I should have shot myself... .” (17 CT 4694.) Whenasked whether any ofhis bodily fluids would be found on Ms. Eddings’ body, appellant offered that he might have dripped sweat on her. He explained that he had turned her head, had touchedher wrist to see if she had a pulse, and hadputhis head on her back to listen for soundsofbreathing,all while he was sweating heavily. (17 CT 4749-4753.) He admitted the scratch on his face had not been there when he got home from work (17 CT 4750), and supposedit happened when he bumpedinto something at Ms. Eddings’ in the dark (17 CT 4733). When asked about a bruise onhisright hand, appellant guessed he must have hit it on the door going out. (17 CT 4754-4755.) Detective Spidle went through the details with appellant a final time before terminating the interview around 9:00 p.m. (17 CT 4759-4791.) He then processed him for booking into countyjail where he was received around 1:40 am. (17 RT 1855-1856; 20 RT 2105-2109.) The following day Detective Spidle brought appellant back to the station and conducted a second taped interrogation session after appellant signed another written waiverofhis rights.” (17 RT 1856-1857.) At the outset of this session, Detective Spidle established that he believed something physical had happened between appellant and Ms. Eddings. He asked appellant to tell him if it did so appellant’s mother would not be worried about someoneelse being out there she neededto be afraid of. Healso told appellant that he had talked to his family and they did not believe the story he had been telling. (17 CT 4802.) Appellant told Detective Spidle he did not know what happened. Hesaid he went over, knocked on the door, and Ms. Eddings let him in. She threw her arms up and they “got in a > A tape of the interview wasplayed for the jury during trial. (18 RT 1899-1900; 20 RT 2903.) A transcript of the tape is included in the clerk’s transcript. (17 CT 4793-4820, 4827-4829.) 14 wrestling match.” (17 CT 4807.) When Detective Spidle asked appellant if he chokedher, he said he did. (17 CT 4811.) He revealed that he had taken her clothes offand put his penis between her legs. She wasnot struggling with him then, and he did not know whether penetration occurred. (17 RT 4811, 4818.) Appellant insisted that he did not mean to harm Ms. Eddings, and that it would not have happenedifhe had not been drinking. (17 CT 4808, 4817.) 3. Other Crimes Evidence Over defense objection, the prosecution was permitted to introduce evidencerelating to appellant’s conviction in a prior case involving Toni Pina under Evidence Code section 1101, subdivision (b). (8 RT 593-595, 601.) Prior to Ms. Pina’s testimonythetrial court instructed the jury: “this evidence from Miss Pinais being presented to you for a limited purpose. She is going to be discussing an event that occurred, obviously, in 1990. And you may considerit for the limited purpose,if it is helpful for you, in evaluating the state of mind of the defendant, William Alfred Jones, Jr., on June 19", 1996, including the state of mind and the existence or nonexistence of the specific intent which may be an element of the crime charged or of the special circumstances which are alleged in this case. [§] For that limited purposeat this time you may consider the evidence and for no other purpose.” (17 RT 1818.) After the admonition, Toni Pinatestified that in March of 1990, when she was 16 years old, she lived with her aunt and uncle, Sandra and John Seneff, in the Pedly area of Riverside County. The Seneff’s three children ages 2, 3, and 5 were also living in the house, as was Donald Jones who was Sandra’s brother. (17 RT 1817-1818.) The morning of March 16", appellant arrived at the Seneffresidence and spoke to Donald briefly before Donaldleft 15 for a job interview. Sandra and John had already gone to work when Donald left for his interview. (17 RT 1820-1821.) AsPina waspreparing to leave the house appellant asked her where she was going. She told him she was going to school, but appellant said: “No, you’re not,” then put his hands on her shoulders and pushed her through the hallway and into a bedroom. (17 RT 1822-1823.) Hetold herto take off her clothes and, when she refused, he took them off for her then pushedherto the floor, took his pants down, and put his penis in her mouth. (17 RT 1845- 1846.) Pina told appellant “No,” and asked him to stop, but he continued until he ejaculated. (17 RT 1823.) He then stood up looking disoriented and pulled Pina to her feet, then walked her into the bathroom and handedhera wet washcloth for her face. After warning her not to say anything about what had happened, appellantleft her crying in the bathroom. (RT 1824.) Pina changed her clothes and then fled the house. She ran to the home of neighbors who were deputies with the sheriffs department and told them what had happened. (17 RT 1825-1826.) B. DEFENSE EVIDENCE 1. Appellant’s Testimony a. Direct Examination Appellant testified that he drank two beers on his way home from work the evening ofthe fire. When he got home he drank four or five more and then wentto the store and bought another six pack which he also consumedbefore going over to Ms. Eddings’ house. (23 RT 2501-2502.) He was holding an open can of beer when he knocked on Ms. Eddings’ door. She opened the doorand let him in, then becameangry that he was drinking and knocked the can out of his hand and began swinging at him. (23 RT 2502.) 16 b. Cross-Examination Despite the limited nature of appellant’s testimony on direct examination, and over defense objection, the prosecution was permitted to question appellant about his activities on the 18" and 19" of June in and aroundthe Eddingsresidenceandhis prior statements conceming those events. Also over defense objection the prosecution was permitted to impeach appellant with his prior conviction in the case involving Toni Pina as wellas three other incidents not resulting in convictions. (24 RT 2520-2535.) Appellant admitted that he lied to Detective Spidle about several things during the course of his interviews. He told him that he did not hurt Ms. Eddings, and did not kill her, but those things were untrue. (24 RT 255], 2553.) He remembered telling Detective Spidle he went to Ms. Eddings’ house and foundher dead, but that was not true. (24 RT 2559-2560.) He also said he had never hurt anyonein his family, and that was not true. (24 RT 2557.) Appellant lied to Detective Spidle whenhe told him he wasnot drunk that night, and understated amount the amount ofbeer he had consumed. (23 RT 2506.) On the night of the incident appellant grabbed Ms. Eddings in the hallway andput his hands around herthroat. (24 RT 2567.) He chokedher, she went limp, and they fell. (24 RT 2574.) Appellant admitted he “had sex” with Ms. Eddings, but he did not know whether vaginal or anal penetration occurred. (24 RT 2566-2567.) When he was questioned by police in 1991 regarding the incident involving Toni Pina he told them he had not touched her. Hesaidthatthelast sex he had wasoral copulation by a prostitute. (24 RT 2561.) Appellant was convicted of felony sexual assault with intent to commit rape and forcedoral 17 copulation (24 RT 2575); however, he consistently denied having assaulted Pina. (24 RT 2570, 2573.) With respect to other incidents, appellant admitted that in September of 1972, while he was in High School, he walkedinto a classroom and stabbed a teacher in the back. (24 RT 2563.) A second incident occurred when appellant wentinto the home of his mother’s friend, Barbara Cady, one night and found her asleep. He remembered jumping on her but did not remember anything else about the incident; he was high on drugs at the time. (24 RT 2563-2564.) Cc. Redirect Although appellant killed Ms. Eddings, he did not go to her house intending to kill her nor did he go there intending to have sexual contact with her. (24 RT 2586-2587.) Ms. Eddings stopped breathing after they landed on the floor and she was not breathing or moving when he put his penis between her legs. (24 RT 2576.) In hindsight appellant assumed Ms. Eddings died because he choked her, although he did not really know what causedherdeath. (24 RT 2579.) Appellant had both hands on Ms. Eddings’ neck when they began to fall. He used one handto try to stop the fall, but was unable to prevent himself from landing on top of her. (24 RT 2597-2598.) Whenappellant spoke to Detective Spidle on the 20" he hadnotslept for 3 days and had not eaten for 48 hours. (24 RT 2587-2589.) He wasafraid and upset over what had happened and did not remember makingall of the statements he made during the interview. (24 RT 2588-2589.) Appellant had no intention of raping Barbara Cady. He had a drug problem at that time, and had been using drugs the day ofthe incident. (24 RT 2590-2591.) 18 2 Forensic Evidence Dr. Barry Silverman, a medical expert in anatomic and clinical pathology reviewed the Riverside County Coroner’s report of the autopsy conducted on Ms. Eddings, a reporter’s transcript of the trial testimony of the coroner’s doctor, photographs taken at the scene andat the coroner’s office, and police reports in this case. (22 RT 2277-2282.) Dr. Silverman’s testimonyrelated to primary twoissues: the amount offorce required to cause the injuries sustained by Ms. Eddings, and whetheror not penetration of the vaginal and rectal canals had occurred prior to death. In this regard Dr. Silverman testified as to Ms. Eddings general physical condition and the effects of age upon the body. Dr. Silverman explained that menopausal and post-menopausal women do not produce the hormoneestrogen. (22 RT 2286.) Additionally, because Ms. Eddings had undergone a radical hysterectomy she was not producing androgens which are converted into estrogen-like compounds. Her estrogen levels, therefore, would have been zero. (22 RT 2290-2291.) The lack of estrogen results in profound changes to bone structure and Ms. Eddings showed signs of severe osteoporosis, including curvature or lordosis of the spine. She had undergone hip replacement surgery, also indicative of severe osteoporosis. (22 RT 2287.) Osteoporosis weakensthe structure ofthe bones and makes them moreproneto fracture. (22 RT 2290.) Further, Ms. Eddings displayed kyphosis or curvature of the spine rendering her vertebral column more prominent and, therefore, more prone to fracture. (22 RT 2293-2294.) Dr. Silverman opined that, in hight of Ms. Eddings bone structure, and considering that she was 81 years of age and weighed 91 pounds, and appellant was 6' and weighed 180-200 pounds, Ms. Eddings injuries could have been caused by appellant falling on her during a struggle. (22 RT 2293.) 19 Theinjuries were also consistent with the application of a bear hug or squeeze followed by a fall with weight on top. (23 RT 2478-2480.) If Ms. Eddings’ injuries had been caused by multiple blows, Dr. Silverman would have expected to see other evidence of blunt force trauma. Beating or kicking type blows would have telescoped into the body such that organs deep to the rib cage, spinal cord, muscles and skin would have shown signs of injury. The autopsy protocol, however, showed noneof this — no deep injury to the brain, lungs, heart, kidneys, liver, spleen, large intestines, small intestine, or stomach. Dr. Silverman would have expected those organs to display injury if Ms. Eddings had been subjected to multiple blowsor a savage beating. (22 RT 2294-2295.) Dr. Silvermanalso explainedthat low levels of estrogen affect the skin, causing it to become thinner. Lack ofestrogenalso affects the skin’s elasticity and the secretion of mucus in the female tract which acts as a lubricant. Consequently, in the case of rape before death there should be evidence of injury, and more significant injury in a post-menopausal woman than in a woman of child bearing years. (22 RT 2306.) During the autopsyinthis case the female genitalia were removed and examinedfor signs of injury, yet no injury was observed. (22 RT 2310.) Dr. Silvermanalso indicated thatif the cloth had been inserted into the vaginal cavity prior to death, one would expect to see evidence of injury such as blood on the cloth, and none wasreported. (22 RT 2309.) Similarly, if forcible sodomy had occurred prior to death, injury would be expected, yet none was found. (22 RT 2314-2315.) Consequently, any penetration would have occurred after death. (22 RT 2315.) 20 3. Evidence re Toni Pina’s Allegations The deputy who respondedto the call regarding appellant’s assault on Toni Pinatestified that she told him appellant had ejaculated in her mouth and that she had spit out the ejaculate. (22 RT 2358.) In an attempt to locate evidenceto corroborate herstory, the officer went to the area ofthe residence where shesaid the assault had taken place and looked carefully for, but did not find, any evidence of semen. (22 RT 2360.) Appellant’s sister, Sandra Seneff, testified that she also looked for evidence of semen based upon Pina’s report but did not find any. (20 RT 2168-2171.) Seneff testified that she did not trust Pina, that she had caught her in lies before, and that Pina had falsely accused another family memberof molesting her but later admitted she had lied. (20 RT 217 1-2173 ) 4. Evidence Re Ms. Eddings’ Attitude Toward Alcohol Ms.Eddings’ daughter, Helen Harrington,testified that her mother did not keep alcoholin the house and did not drink. (24 RT 2632.) Drunks upset her and she avoided them if possible. (24 RT 2633-2634.) C. THE PROSECUTION’S REBUTTAL EVIDENCE The prosecution’s rebuttal related to the Toni Pina incident and included previously redacted statements made by appellant during his interviews with Detective Spidle. Additionally, the prosecution introduced the prison packet relating to the Pina case. (25 RT 2693-2696.) 1. Pina Incident Deputy Brett Johnson testified that he went to the Seneff residence to arrest appellant. Before Deputy Johnson explained anything about the charges, appellant said: “I didn’t touch that little girl. I want to turn myself in and clear this up.” (25 RT 2671.) Deputy Johnson then took appellant into 21 custody and transported him to jail. (25 RT 2673.) Appellant told Deputy Johnson he had “partied” very hard the night before and wentto hissister’s house becausehe did not feel he could drive all the way home. Hesaid he spoketo his brother outside the house then wentin and wentto sleep. Deputy Johnson asked appellant whenthe last time he had sex was, and appellant told him that he had picked up a prostitute earlier that morning and paid her $20 for oral sex. (25 RT 2674.) After they heard a radio call about retrieving a washcloth as evidence, Deputy Johnson asked appellant why they would need a washcloth. Appellant said he did not know, then said he had a washcloth on his headlike a cold compress while he was sleeping. For a few minutes nothing more wassaid, then appellant told Deputy Johnson “There was come on myshirt.” Deputy Johnson asked howit got there, and appellant said the prostitute got it on his shirt. Deputy Johnson asked wherethe shirt was, and appellant told him it had been washed. (25 RT 2675-2676.) When Deputy Johnson told appellant a rape kit would be taken, he asked to have a doctor present saying that the doctor could confirm he had scars on his penis which would be visible to anyone whohad contact with it. Appellant believed this would be helpful to his defense. (25 RT 2676.) Deputy Johnson was present whenthe rape kit was taken and observed a pink substance on appellant’s penis. He asked him whatit was, and appellant told him he had used Calaminelotion to try to heal the scars. Deputy Johnson observed an abrasion on oneside of appellant’s penis and a scar on the other. (25 RT 2677.) Aspart ofthe rape kit the nurse swabbedappellant’s penis with a cotton swab. Appellant asked her why and shetold him it was for evidence of vaginal secretions. Appellant then said he had touched the prostitute’s vagina with his finger. Deputy Johnson asked him whatrelevancethat had to 22 secretions on his penis, and appellant replied “Yeah, I guess you’re right.” (25 RT 2679-2680.) Also called to testify regarding the Pina incident was a Riverside County Superior Court clerk who heard appellant make a statementoutside of the courtroom during that case. Kathy White testified that after Ms. Pina testified at trial, a lunch break was taken. During the break Ms. White overheard appellant talking to his brother outside of the courtroom. Appellant’s brother asked him if “she was crying and carrying on.” Appellant replied that she was not crying, and saidthat it looked pretty good andthat he thought he wasgoing to beat this one too. (25 RT 2702-2704.) 2. Appellant’s Previously Redacted Statements The prosecution was also permitted to play sections of appellant’s interview with Detective Spidle which had previously been redacted. (25 RT 2698; 18 CT 4858-4860.) These portionsrelated to statements appellant made about the Pina and Cady incidents. When Detective Spidle asked appellant about the incident with Toni Pina he replied: “I don’t know what it was. You know,all these years, you know,I hadto live in that lie.” (18 CT 4858.) With respect to Barbara Cady Detective Spidle asked appellant: “What happened with Barbara?” Appellant replied: “Same thing, dope and beerandstuff and —” Detective Spidle then asked: “But, I mean, what did youtry to do, rape her?” and appellant replied: “Yeah.” (18 CT 4859.) Detective Spidle also asked appellant: “. . . the sexual urge that you have that cause, causes you to wanna, a, force sex on somebodylike this . . . it doesn’t differentiate between younger women and older women,does it?” Appellant replied: “I guess, I guess not. It don’t look like it.” (18 CT 4860.) THE PENALTY PHASE At the. penalty phase the prosecution relied upon the circumstances of the crime and previous misconduct by appellant in support of its case for imposition of the death penalty. Additional evidence was producedrelating to prior acts offorce or violence committed by appellant. The prosecution also presented victim impact evidence. The defense introduced evidence in mitigation relating to appellant’s psychological background and make-up including testimony from appellant’s relatives regarding his upbringingas well as expert testimony. Defense evidence wasalso presentedrelating to the prior violent activity described by prosecution witnesses. IL. PROSECUTION EVIDENCE A. OTHER CRIMINAL CONDUCT 1. Former Girlfriends The prosecution called as witnesses three of appellant’s former girlfriends, Terry Garrison with whom appellant had a four-year relationship between 1975 and 1979 and with whom hehadthree children, Tina Kidwell with whom appellant had a two-year relationship between 1980 and 1982, and Elsie Swarringim with whom appellant maintained an on again off again relationship between 1982 and 1988. Each of these women describedtheir tumultuous relationships with appellant and detailed incidents of physical abuse. Terry Garrison’s daughter from a prior relationship, Angela, also testified to acts of abuse by appellant. a. Terry Garrison Terry Garrison met appellant in St. Louis during 1975 while he was staying with his uncle and lived across the street from the restaurant where Garrison worked. They began dating and Garrison eventually movedin with him. Appellant and Garrison lived together until January of 1979 and, over the 24 course of their relationship, had three children together, two girls and a boy. Garrison also had two daughters from a prior relationship, Angela and Deborah. (30 RT 3090-3091.) Sometime in 1977 the relationship between appellant and Garrison deteriorated and appellant became physically abusive. The mistreatment began with pushing and slapping, and eventually escalated to punching and kicking. Violence between the two was sometimes, but not always, alcohol related, and appeared to Garrison to occur wheneverappellant had a bad day. (30 RT 3092-3093.) On one occasion appellant hit Garrison in the head with an axe handle. (30 RT (30 RT 3093.) During another argument, appellant grabbed Garrison bythe neck and threw heracross the bed. During the course of their relationship Garrison sustained an eye injury, a head injury, and a rib injury at the hands of appellant. (30 RT 3095-3096.) In addition to the physical abuse, appellant also threatened Garrison, on occasiontelling herthat if she ever left him, he would find her andkill her. (30 RT 3095.) Appellant also told her of other acts of violence and said that when he wasin the 9" grade one of his teachers made him madso he stabbedher 21 times in the back with a paperweight. (30 RT 3091.) In addition, appellant told her he had been accusedoftrying to strangle a formergirlfriend. (30 RT 3092.) Appellant and Garrison ended their relationship in January of 1979.° At that time appellant moved out and went to California, only to return to St. Louis within a month to stay with Garrison for two or three weeks while she ° On cross-examination Garrisontestified that she knew appellant was facing the death penalty and admitted that she was biased against him. She said she “despised” him, and whenaskedto rate the intensity ofthis feeling on a scale of 1 to 10, she rated it at 11. (30 RT 3115.) 25 was 5 months pregnant with their son. One night during his stay, appellant returned to the house and, although he did not appear to be drunk orhigh, shoved Garrison facefirst into a wall in the bedroom, then followed herinto the bathroom and pushedherinto the bathtub. Garrison wentinto labor and was taken to the hospital where she gave birth prematurely. (30 RT 3094.) After their break-up, Garrison received informationthat appellant might have molested her oldest daughter, Angela. (30 RT 3096.) She called him and asked him about her suspicions. Appellant asked herif she really thought he was capable of something like that; she said yes, and he laughed. (30 RT 3111.) Prior to this time Garrison had never suspected appellant of abusing anyofthe children. He was always a good father while she was around. (30 RT 3105.) | Angela also testified at the penalty phase and described conditionsin the household during the three or four years her motherlived on and off with appellant. (30 RT 3241.) During this time appellant and her mother both drank and would fight frequently. Angela was a witness to, and victim of, abuse during this time. She had seen appellant slap her mother, and she had been beaten by her mother’ and abused by appellant. (30 RT 3240, 3250.) Angela related two specific incidents of abuse by appellant. On the first occasion, while Garrison wasat work, appellant called Angela overto the couch, put her on top of him, and began rotating his hips. Angela cried and appellant told her to stop being such a baby. He wanted herto take her pants off, but Angela refused and asked to call her mother. Appellant phoned Garrison at work and told her she needed to come home. Garrison returned 7 In 1981, all five of Garrison’s children were removed from her custody and placedin foster care. (30 RT 3243.) 26 angry, and slapped Angela after she told her appellant had wantedher to take her pants off, then sent her to bed. (80 RT 3239.) Another incident occurred after Angela and her youngersister had crossed the street against appellant’s instructions. Appellant yelled for them to come back to the house. Once inside, he made the girls take off their clothes and lay face down onthe floor. He then sat behind them for a period of time and told them to keep their eyes on the floor. (30 RT 3240.) Appellant was homealone with the children on another occasion when he instructed Angela to take her nightgown offand give it to her sister. Angela removed her nightgown and gave it to her sister then put on another nightgown, but appellant told her he wanted herto take the nightgown off and come over to him. Angela went to where appellant was sitting and he put her on his lap and raped her. Angela screamed and appellant told her that was what she got for being curious (referring to a night when Angela, thinking appellant and Garrison were fighting, walked in on them while they were having sex). Afterward appellant put his finger in Angela’s vagina,telling her he was checking to see if she was pregnant, then put her in the bathtub. Garrison came in and noticed blood in the bath water, but appellant told her Angela had cut her foot. (80 RT 3241-3242.) b. Tina (Perfater) Kidwell Tina Kidwell, formerly Tina Perfater, met appellant in St. Louis in September of 1980. (30 RT 3181-3182, 3189, 3190.) At the time he was working with Kidwell’s brothers. Kidwell dated appellant for about six months before she and her baby son moved in with him. She moved out three monthslater, but they continued to see each other. (30 RT 3182, 3190.) During the course of their relationship, Kidwell and appellant drank together to intoxication and incidents of violence sometimes occurred while 27 they were drunk.* (30 RT 3198.) On one occasion when Kidwell wasvisiting appellant and wanted to get a bottle of milk for her son, appellant pushed her out of the house and locked the door behind her. Herefusedto let her back in, threatened to “beat her ass,” and told her to get out of there. (30 RT 3183, 3 197.) During another incident appellant, who was apparently dissatisfied with a meal Kidwell had prepared, overturned a table and pushed Kidwell across the room. Another time Kidwell made chili and appellant, angry because it was not homemade, threw the pot across the kitchen, shoved Kidwell, overturned the table, then forced Kidwell out of the house. (30 RT 3184.) A last incident occurred on Christmas Eve in 1982 while Kidwell was living in an apartment with her son and appellant was staying over a few nights a week. That night they had a few neighbors over for a Christmas party. Appellant becamejealous and puthisfist through a window then stormed out of the house. Kidwell had no further contact with him after that incident. (30 RT 3185.) Kidwell was not seeing appellant when another woman, Elsie Swarringim, accused her of having a relationship with him. A fight ensued between the women and Kidwell cut Swarringim’s face with a box cutter. (30 RT 3189, 3201-3203, 3206.) CG Elsie Swarringim Elsie Swarringim and appellant maintained an on again off again relationship in St. Louis between 1982 and 1988. (30 RT 3143, 3147, 3151.) When they met, Swarringim was living across the street from appellant’s grandfather. (30 RT 3123.) The first time they were alone together, appellant * Kidwell testified that when appellant was physically abusive toward her he had usually been drinking. On occasion fights occurred when he had not been drinking, but had a bad day at work. (30 RT 3187.) 28 took Swarringim for a ride down bytheriver-frontin his truck. At one point he pulled Swarringim’s pants down,but she told him no. He stopped and took her home. (30 RT 3125.) Two or three months later appellant came to Swarringim’s door, said he wantedto talk to her, and asked her to-go for a ride with him. (30 RT 3125-3126.) She agreed, and they drove downbythe railroad tracks. When they got outofthe car, appellant grabbed Swarringim by the neck and pushed her into the backseat. As she struggled with himhe pulled her pants down,got on top of her, and forced intercourse. Afterward appellant drove her home. (30 RT 3126-3127.) Swarringim told her sister about the incident a week later. (30 RT 3127.) Swarringim did not see appellant again until a few monthslater. From then on she saw him at various times and had sexual relations with him, sometimes voluntarily and sometimes not. (30 RT 3128.) They lived together for a week or two in 1986. (30 RT 3129, 3151.) Sometime toward the middle of their relationship, Swarringim began to feel used by appellant. She was upset he did not feel the same way aboutherthat she felt about him. (30 RT 3165.) They both saw other people at times during their relationship which ultimately ended in 1988. (30 RT 3159, 3165.) According to Swarringim, appellant sometimes forced sex with her and at various timeshetied her up, put a knife to her throat, put his hands around her neck, and choked her with a pair of underwear.? On one occasion appellant put a pair of underwear around Swarringim’s neck while they were having sex and tightenedit to the point where she asked him to stop. He then ” Swarringim estimated they had intercourse approximately 100 times over the course of their relationship, and out of those times appellant tied her up five or six times against her will. (30 RT 3167.) 29 gave hera pill of some kind which causedherto pass out. When she wokeup, he was gone. (30 RT 3129.) On another occasion, appellant tied Swarringim to the bed and put a foreign object, which she guessed was a candle, in her vagina. (30 RT 3131.) Swarringim had appellant arrested in 1986 when, during an argument, he punchedherin the face and ran a pocket knife down the front of her blouse threatening to “cut her beyond recognition.” (30 RT 3132, 3159, 3173.) Police found a 3" pocket knife in his possession when he was arrested. (30 RT 3174.) On cross-examination, Swarringim testified that she instigated a fist fight with Tina Perfater over appellant in 1988. The fight ended whenPerfater cut Swarringim’s face with a straight razor. (30 RT 3139-3141, 3143.) Swarringim had been in other fights with women, sometimesover a man, sometimes for other reasons. She. had also been in fist fights with men, exchanging blowsand wrestling with them. (30 RT 3142.) 2. Single Incidents The prosecution also introduced evidence of single incidents of violence committed against four women: Norma Knight, a teacherat a school appellant attended; Barbara Cady, the mother of appellant’s then girlfriend; Cathy Dunn, the girlfriend of one of appellant’s friends; and Francis Stuckinschneider, a neighbor for whom appellant did some maintenance work. a. Norma Knight In 1972, during the week before school began, Principal Robert Packer metwith teachers at Nogales High School in La Puente. (29 RT 3055.) After the meeting Packer wasin his office when the switchboard operator called and told him a teacher, Norma Knight, had been stabbed. (29 RT 3056.) Packer asked the operator to wait by the switchboard while he went to check on Knight. He foundhersitting at her desk, and asked her if she wasall right. 30 She calmly told him she had been stabbed, and when he walked around the desk he saw:a hunting knife in her back. (29 RT 3056-3057.) Packer encouraged Knight to remain quiet, then went to the phonein her classroom, called the switchboard operator, then instructed herto call for law enforcement and medicalassistance, and bring him whateverfirst aid equipment they had on hand. (29 RT 3057-3058.) While they waited for help to arrive, Packer asked Knight what happened. Shesaid a student had paused at the open doorto her classroom and asked her whattime it was. Rather than telling him the time she indicated that the clock was on the wall, and said something to the effect of “Can’t you see it?” The student, whom she did not know,continued toward her desk and, the next thing she knew, he plunged a knife in her back and left the room.” (29 RT 3058.) A weekafter the incident, Thomas Lindley, the school Vice Principal, was with Knight when she was shown a photographicline-up and identified appellant as the youth who had stabbed her. (29 RT 3067.) Knight took time off from workafter the incident then returned for a period of time, but was frightened, nervous and apprehensive with respectto daily business, and quit teaching later that same year. (29 RT 3067.) At the timeoftrial she was under psychiatric care. (29 RT 3061.) b. Barbara Cady Barbara Cady and appellant’s family lived in the same La Puente neighborhood, and appellant dated her daughter. (29 RT 3072.) Onenight Cady awoke to find appellant sitting on her chest, with his hands around her neck, choking her. (29 RT 3073-3074.) Although she was having trouble breathing, she managed to say appellant’s name. He stopped whenshe did, and began to cry, saying he was on drugsor alcohol and needed help. (29 RT 31 3075-3076.) Cady, who had neverhad a problem with appellant beforethis, told him she would do what she could to help. (29 RT 3077-3078.) After appellant walked out of the room, she dressed then went into the living room to find him, but he had gone. Cady later found a knife on her pillow. (29 RT 3076.) | C. Cathy Dunn Cathy Dunn met appellant in St. Louis through Harvey Temple, a married man she was dating. (30 RT 3212.) One night in 1983 Dunn and Temple ran into appellant at a bar. He was with another woman andthe four of them wentto a restaurant for breakfast then back to appellant’s house. (30 RT 3214-3215.) Appellant and the woman moved to the bedroom leaving Temple and Dunn in the livingroom. About 30 minutes later, Temple’s wife cameto the front door with their daughter. (80 RT 3215-3216, 3222.) Temple answered the door, went outside and argued with his wife, then came back in and told Dunn he was goingto take his wife home and would be backshortly. Dunn agreed to wait for him there. (30 RT 3217.) After Temple left, appellant, who was apparently drunk, cameinto the living room alone. (30 RT 3217-3218, 3233.) He and Dunn talked for a few minutes and he told her he had called Temple’s wife. He said he had done so because he wanted to be alone with Dunn. When Dunnrejected appellant’s advances, he grabbedher and pulled her into the bedroom,threw her down on the bed, held her arms down, unfastened her pants, and pulled them down. Dunn yelled at appellant to let her go andtried to hit him, but he told her to shut up, pulled her underwear down, and raped her. (30 RT 3217-3219.) Afterward Dunn had to unlock the door to get out of the room. As she was leaving the house, Temple called and she told him to pick her up in a nearby 32 parking lot. Dunn told Temple what had happenedbut did nottell her family and did not report the incident to police. (30 RT 3220-3221.) She next saw appellant about eight months later when she and Temple were at a bar. Appellant acted as if nothing had happened until he spotted Temple; then he tumed andleft. Dunn never saw appellant again after that encounter. (30 RT 3221.) d. Francis Stuckinschneider Because Francis Stuckinschneider died priorto trial, evidencerelating to this incident was presented over defense objection by her grand-daughter Sherry Melson and Sherry’s husband James. At the time of the incident Stuckinschneider, who was then 62 vears old, owned a duplex in St. Louis. She occupied the secondstory ofthe unit while Sherry and James lived in the downstairs unit. The two apartments shared a common hallway. (30 RT 3260-3262, 3264-3265.) Appellant’s uncle Bill lived in the neighborhood and did odd jobs for Stuckinschneider. He had arranged for appellant, known to them as “Willy,” to do some work for her also. (30 RT 3262.) One evening Sherry heard someoneenter the building and go upstairs to her grandmother’s residence, then heard Stuckinschneider talking to someonein the hallway. (30 RT 3264.) A short time later she heard a loud noise, like someonefalling or running downthestairs, and opened herdoorin time to see the screen doorofthe entryway closing behindthefigure of a man. Sherry went upstairs and asked Stuckinschneider what was wrong. Stuckinschneider, who wasnervous,upset, and angry, said “Willy tried to rape me.” (30 RT 3265.) Sherry noticed that Stuckinschneider appeared disheveled and that the top of her blouse was unbuttoned. (30 RT 3266.) Sherry and Stuckinschneider went inside and talked more about what had happened. Stuckinschneider was crying, upset and shaken asshe told G o G 2 Sherry that appellant asked for a glass of water, went into her kitchen, then returned with a knife in his hand, and told her he was going to have sex with her. As he grabbed her breast, and groped her between her legs, Stuckinschneider told him her grand-daughter was downstairs and said her grandson was expected homeat any minute. She also mentioned appellant’s uncle Bill. As she was talking she managed to work appellant toward, and finally out, the door. (30 RT 3266-3267.) When Jamesarrived home, Sherry told him what had happened. Later he went to confront appellant, but was unable to find him. (30 RT 3267, 31 RT 3288-3290.) B. VICTIM IMPACT EVIDENCE Several of Ruth Eddings’ relatives testified, and numerous family photographs were displayed to the jury over defense objection (31 RT 3315- 3316, 3327, 3338-3352, 3368.) Ms. Eddings’ daughter, Helen Harrington, testified that she last saw her mother about 10 days before she died. (31 RT 3353.) A neighborcalled and told her of the fire and of her mother’s death. (31 RT 3354.) At the time of tnal she wasstill experiencing recurring nightmares, and had been prescribed Prozac. (31 RT 3355-3356.) She found herselfcalling her mother’s phone numberevenafter it had been disconnected, and would begin talking to her mother when the recording came on announcing the numberwasno longerin service. (31 RT 3356.) Ms. Eddings’ niece, Donna Velasquez,testified that Ms. Eddings was like a mother to her. She spoke of Ms. Eddings’ generous nature and explained that she had always been there for her. They spent quite a bit of time together and, after Ms. Eddings died, there was a void in herlife. (31 RT 3314-3317.) Another niece, Ernestine Pierson,attested to Ms. Eddings’ loving and compassionate nature. (31 RT 3326.) Ms. Pierson thought frequently about the way she died. (31 RT 3330, 3335.) Ms. Eddings wasShirely Grimmett’s great aunt, and Ms. Grimmett described her as a sweet, independent, and funny lady, and confirmed that she was always there when anyone needed her. (31 RT 3367.) Il. DEFENSE EVIDENCE A. APPELLANT’S FAMILY HISTORY Appellant’s parents had five children in the following order: Sandra, Richard, appellant, Donald, and David. Mr. and Mrs. Jones had completed only 8 years of education and both of them worked while the children were growing up. (32 RT 3463, 3526.) Mr. Jones did not attend the children’s school activities. (32 RT 3471, 3528-3529.) He drank excessively and was physically abusive to the boys, beating them with his hands and a belt when he was drunk. (32 RT 3465-3466, 3469.) Appellant and his youngerbrother Donald received most of the abuse. (32 RT 3486, 5212.) Their father, who was 6'2" and weighed about 220 pounds, sometimes threw them against walls and would hold them by their shirts off the ground. (32 RT 3486.) On one occasion, Mr. Jones picked the oldest boy Richard up byhis shirt collar, slammed him against a wall, then threw him down thehall, after Richard broke a window. (32 RT 3506.) Another time Mr. Jones beat Richard with a belt until he bled. (32 RT 3507.) After the children reached their 18" birthdays Mr. Jones would sometimes throw them out of the house in anger. (32 RT 3472.) Donald was expelled from the family home a few months after he turned 18. (32 RT 3488.) Richard wastold to get ajob or leave the house when he was18 or 19 years old. (32 RT 3509.) He enlisted in the military and served for 17 years before becoming a correctional officer at Calipatria State Prison. (32 RT 3503, 3509.) 35 Appellant washospitalized at Ingleside Memorial Mental Health Center in Rosemeade, California, after the Norma Knight incident. (32 RT 3473, 3531.) After he was released from the hospital, he remained in custody until he turned 18 (32 RT 3533), and he received some counseling through the probation departmentafter his release (32 RT 3535). When he was 19, Mrs. Jones arranged for him to stay with relatives in St. Louis because he was unhappy and wanted a new start. (32 RT 3552.) Helived there, off and on, for the next 20 years of his life. (32 RT 3534, 3526.) Appellant wasnotviolent as a young child and has never been abusive or aggressive toward family members. (32 RT 3470, 3488, 3530, 3543.) His mothertestified that when he is sober he is congenial. loving. fun to be around, and she enjoys his company. However, when he drinks he becomesagitated, nervous, and argumentative. (32 RT 3542-3542.) Until the Norma Knight incident appellant had never behaved in a violent manner. (32 RT 3544.) Barbara Cady informed appellant’s motherthat he had assaulted her, and told her he said he needed help. (32 RT 3534-3535.) Unfortunately Mrs. Jones was not able to provide him with help at that time. (32 RT 3535.) B. PSYCHOLOGICAL EVIDENCE Clinical psychologist Dr. Michael Kania evaluated appellant after meeting with him 10 times and administering a battery of psychologicaltests including the Wechsler Adult Intelligence Scale, the MMPI, the Rorschach Ink Blot Technique, and the Thematic Apperception test. (32 RT 3565, 3568, 3582.) Dr. Kania also spoke to appellant’s mother, sister, and brother David. (32 RT 3582.) Appellant’s overall score on the intelligence test was 85, which qualifies as low average to borderline. (32 RT 3571.) Dr. Kania found no indication of organic impairmentin the tests results or in appellant’s medical or work history. (32 RT 3570.) Based uponinterviewsandtests results, Dr. Kania determined that appellant suffers from a severe personality disorder with paranoid and dependent features. He also diagnosed episodic alcohol abuse or dependence and concludedthat alcohol is a significant factor in the impairment appellant suffers from. (RT 3484.) Dr. Kania found it difficult to gain information from appellant and discovered that he is afraid that if he opens up to other people, what he discloses will be turned on him and hewill suffer for it. Generally, appellant could not bring himself to reveal things he had done wrong or that would reflect badly on the family. (32 RT 3587.) Appellant harbors significant anger and resentment, particularly towards his mother because she did not protect him from his physically abusive father. He has high dependency needs and wants to be close to people, but fears he will be rejected or harmed in some wayby them. Hedeals with anger, frustration and hostility by “putting a lid on it.” When he drinks, his inhibitions are lowered and he is unable to contain his anger. (32 RT 3585.) Appellant generally expects women to reject him andinterprets their actions according to this preconception evenif it is incorrect. His abuse of women with whom he hashadrelationships1s in keeping with this character trait. (32 RT 3604.) Appellant’s drinking magnifies the problemshe has with women. (32 RT 3605.) Appellant functions best in a work type setting where emotions do not predominate. Conflictive situations with womenorhis family are disruptive to him. (32 RT 3598.) However, he is able to function well in the structured setting ofprison withoutgetting into trouble and without harming anyone. (32 RT 3603.) While in custody appellant did not receive many write ups for inappropriate behavior and did not receive any for violent behavior. (32 RT 37 3600.) He showsnosignsofbeing a person whois hardenedto the effects of his behavior on others or one whoactively tries to hurt people. (32 RT 3607.) C. APPELLANT’S BEHAVIOR IN CUSTODY AND ON PAROLE According to the Department of Corrections records relating to appellant’s prior conviction, he received only a few write-ups for minor infractions, one for sitting in class with his shoes on the desk, and two for smoking in class. (33 RT 3683-3684.) Notations in hisfile relating to his work performance were generally positive. (33 RT 3687-3688.) After his release, appellant was supervised on parole for a period of 21 months during which time he complied with all conditions and committed no technical violations or newcriminal offenses. (33 RT 3713-3716.) D. EVIDENCE RE OTHER INCIDENTS 1. Francis Stuckinschneider District Attorney investigator Wesley Daw interviewed Francis Stuckinschneiderin St. Louis in 1996.'° (31 RT 3383.) Her son and 16 year old grandson were present during the interview. (31 RT 3406.) When Daw asked Stuckinschneider about the incident with appellant, she told him that appellant “got fresh” with her. (18 CT 5003-5004.) More specifically, she said: “He grabbed me and uh,I, I got away from him and went on down the steps and he followed me down the steps.” Her son asked her whether appellant touched her “private parts,” and Stuckinschneider responded: “Oh no-no-no-no, he didn’t do nothing like that.” (18 CT 5008.) | '° The interview wastaped recorded andthe audio tape wasplayed for the jury during trial. (31 RT 3389.) A transcript of the tape is included in the clerk’s transcript. (18 CT 5003-5015.) 38 2 Terry Garrison Danny Davis, a private investigator employed by the defense, interviewed Terry Garrison in St. Louis at a neighborhood bar where she worked as a bartender. (31 RT 3408-3409.) Garrison told Davis she thought appellant was a good father to the children and did not say anything about appellant molesting her daughter. (31 RT 3416.) She said that appellant did not drink during the week, but would get drunk on the weekends andthat she would drink with him. She and appellant fought physically at times but not very often when appellant was sober. (31 RT 3417-3418.) Toward the end of the interview, Garrison asked Davis if he was married and whether he would be willing to get involved with an older St. Louts girl, referring to herself. (31 RT 3420.) 3. Tina Kidwell Davis also interviewed Tina Kidwell. She told him she had met appellant in 1981 and said they had been boyfriend andgirlfriend on and off for two years and lived together for three months. Kidwell also said appellant wasa very good father and that he never acted inappropriately with her child or his daughter. (31 RT 3424-3425.) Kidwell explained that the longer she and appellant were together the more problems they had. Appellant would sometimeshit her, usually when he was drunk. She said when appellant was sober he was a very nice person, but when he drank he changed. (31 RT 3425.) He liked to be in control of all aspects of the relationship. (31 RT 3426.) Kidwell was surprised by the charges in this case. (31 RT 3427.) 4. Cathy Dunn Davis also spoke to Cathy Dunn. She told him that she and appellant had been “drinking buddies” in 1982. (31 RT 3430-3431.) Dunn said appellant was a very nice guy when he wassober, but when he wasdrinking 39 or using drugs he was short tempered and could be violent. (31 RT 3431- 3432.) She said he drank frequently. (31 RT 3422.) She also told Davis of the incident in appellant’s apartment when he became sexually aggressive with her after her boyfriend left. (31 RT 3434.) 5. Elsie Swarringim After Swarringim and appellant ended their relationship, she called appellant’s mother’s house several times looking for him. Mrs. Jones eventually told her that appellant did not want to speak to her andthe calls stopped. (32 RT 3537-3538.) Ill. PROSECUTION’S CROSS-EXAMINATION OFDEFENSEWITNESSESAND REBUTTAL A. DONALD JONES | The day ofthe Toni Pinaincident, Donaldleft for a job interview after appellantarrived, although he was uncomfortable leaving appellant alone with Pina since he appeared to have been drinking excessively and perhaps taking drugs. (32 RT 3494.) Donald thought appellant was underthe influence, and was apprehensive because appellant generally had problemsgetting along with people, and would sometimes get into fights, when he was drunk. He was afraid appellant might do something to Pina. (32 RT 3495.) Although Donald found books out of place on the floor when he returned home, appellant denied that anything had happenedandsaid that Pina was makingit all up because he would not lend her money. Healso said he had been with a prostitute the night before. (32 RT 3502.) B. DR.KANIA Appellant discussed past relationships with Dr. Kania, and told him that Terry Garrison had hit him andspit in his face during their time together. 40 He explained that there was constant conflict between the two of them, and admitted going to bars and seeing other women while they were together. (32 RT 3611-3612.) He described Tina Perfater as his one true love and did not mention any violencein the relationship. (32 RT 3613.) He described his relationship with Elsie Swarringim as a nightmare and said she had a mental disability and accused him ofdoing things he had not done. Their relationship was on again off again in that he would throw herout but she would return. (32 RT 3612.) He also mentioned several short term relationships including a woman named Juanita with whom hesaid he had a goodrelationship, a woman named Dixie whom hesawfor three monthsbut broke up with because of some problem with her ex-boyfriend, a woman named Virginia who was a prostitute he stayed with for two weeks without any incidents of violence, and Debbie Hisler a woman he dated for three months but who had a boyfriend. (32 RT 3613-3614.) WhenDr. Kaniafirst contacted appellant he was on suicide watch and had been medicated. (32 RT 3618.) However, by the timeoftrial he had been off medication for about a year. (32 RT 3615.) Dr. Kania did not find any evidence of a psychotic disorder or any history of such a disorder. (32 RT 3617.) Appellant does not display any symptoms of psychosis or delusions. (32 RT 3642.) However, his view of himself is pathological in that he thinks ofhimself as being very competent but underlying the illusion of competency is a sense of inferiority he is trying to cover up. (32 RT 3649.) Appellant has a low tolerance for frustration. (32 RT 3648.) Dr. Kania detected strong underlying anger 1n appellant, a feeling that he had been mistreated, whichis usually the basis of anger, and a resentmentthat he had not beentreated fairly. Appellant lacks the psychological resources to deal with stressors in hislife. 41 Consequently, he experiences chronicstress resulting from underlying turmoil in everything he does. (32 RT 3650.) Appellant told Dr. Kania he had pushed Ms. Eddings by the neck but he did not think he had strangled her. (32 RT 3640.) Hesaid hetries not to think about the incident because it makes him angry; he feels sick and nauseousandis unable to eat or sleep. (32 RT 3662.) In Dr. Kania’s opinion what happened the night Ms. Eddingsdied is that, in the face of what he perceivedas an attack, appellant lashed out angrily and then sexually assaulted Ms. Eddings after she was dead as an expression of rage. (32 RT 3665.) C. APPELLANT’S PAROLE OFFICER Appellant’s parole officer Spencer Stadler was called by the defense and questioned about appellant’s record on parole. The prosecution wasthen permitted to question him, over defense objection, about statements appellant made to him regarding the instant offense. (33 RT 3727-3729.) Appellant admitted he burned Ms. Eddings’ residence, but said he did not harm her and denied any sexual misconductor physical violence. He explainedthat he had been concerned because they usually leave the newspaper for Ms. Eddings to read by sticking it in the fence. When he noticed she had notpickedit up, he went over to check on her. Appellant said he knocked on the door but got no response. He then went in and found her nude body lying face down on the floor. He checkedto see if she wasalive then panicked andleft the residence. He took off in his truck because he thought he would be put in prison due to the nature of his prior prison commitment. He then decided to return to destroy any evidence of having been in the trailer. (33 RT 3729.) D. REDACTED PORTIONS OF APPELLANT’S STATEMENTS TO POLICE Whenappellant was interrogated by police on this case, he was asked about the incident involving Barbara Cady. He said that he was on drugsat 42 the time and did not remember what had happened. (33 RT 3732 [excised portion oftape played forjury]; 18 CT 5049 [transcript].) With regard to “that lady in St. Louis” appellant said she owed him money for work he had done on her house “[a]nd then that’s when the accusation came out on that one.” (18 CT 5050.) 43 AUTHORITIES AND ARGUMENT ISSUES RELATED TO GUILT AND SPECIAL CIRCUMSTANCES INTRODUCTION Thetrial court made severalcritical errorsrelating to the guilt phase of the trial. In order to put these errors into perspective, it is importantto first understand the parties’ theories of the case. The prosecutor arguedfora first degree conviction under a felony-murder theory based upon the underlying felonies of burglary, rape, sodomy, attempted rape and attempted sodomy. The People’s theory of the case was that appellant committed burglary when he entered Ms. Eddings’ trailer with the intent to commit rape and/or sodomy, and that he killed her either during the attempt to commit these crimesorin the commission of these crimes. The central dispute below was whether any of the underlying felonies relied on by the prosecution were committed by appellant. Burglary requires an act ofunlawful entry accompanied bythe specific intent to commit theft or any felony. (Pen. Code, § 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041.) The intent to commit the underlying crime must exist at the time of entry. (People v. Gbadebo-Soda (1995) 38 Cal. App.4th 160, 166.) Here the prosecution’s theory was that appellant entered the residence with the intent to commit rape or sodomy andthe jury instructions regarding burglary were expressly limited to these crimes. (6Supp. CT 20.). If, as the defense argued, appellant had not entered Ms. Eddings’ residence with the intent to sexually assault her, no crime of burglary would have been committed. Further, if Ms. Eddings had not been sexually assaulted until after she had died, appellant would not have been guilty of rape or sodomysince both 44 of these crimes require a live victim. (See People v. Kelly (1992) 1 Cal.4th 495, 524 [“Raperequires a live victim. “Rape must be accomplished with a person, not a dead body... .’”]; People v. Ramirez (1990) 50 Cal.3d 1158,1176 [applying a similar rule to the crime of sodomy].) | Finally, if appellant had not formed the intent to sexually assault Ms. Eddingsuntil after she was dead, a first degree murder conviction based upon attempted rape or sodomy would not have been justified. This Court has determinedthat a person who attemptsto rape a live victim, kills the victim in the attempt, then has intercourse with the body, has committed only attempted rape, not actual rape, but is guilty of felony-murder and is subject to the rape special circumstance. (See People v. Kelly, supra, 1 Cal.4th at p. 526; People v. Goodridge (1969) 70 Cal.2d 824, 838; People v. Quicke (1964) 61 Cal.2d 155, 158.) However, for the felony-murderrule and special circumstance to apply, the defendant must have been attempting to rape the victim at the time of the killing. It would not suffice if, after the killing, defendant acquired the intent to have intercourse with the dead body. (People v. Kelly, supra, 1 Cal.4th at p. 526.) Thus, if appellant had not formed the intent to sexually assault the victim while she wasstill alive, he would not have been guilty of attempted rape or attempted sodomy. In orderto establish guilt of the underlying felonies, the prosecution arguedthat appellant went to Ms. Eddings’ trailer intendingto sexually assault her, and that he raped and sodomized her, and then brutally killed her by strangling her and inflicting multiple blows which resulted in significant injury. The defense theory was that appellant did not intend to sexually assault or otherwise harm Ms. Eddings went he went to her trailer that evening, but that he became enraged andlashed outat her after she knocked a beer can out of his hand. She died as the result of injuries she sustained 45 when hefell on top of her during a struggle. Due to the difference in their size, and the fact that Ms. Eddings suffered from osteoporosis which rendered her bonesparticularly brittle, Ms. Eddings suffered injuries which provedto be fatal as the result of the impact of appellant’s body falling on hers. Under the defense version of events, appellant did not sexually assault Ms. Eddings while she wasalive, and he wasnot attempting to do so whenshe waskilled. Ratherifpenetration took place, it occurred after death and was committed as an expression ofrage. Based uponthe parties’ differing theories ofthe case, two central issues were presented to the jury: (1) whether appellant had the intent to sexually assault Ms. Eddings prior to her death; and (2) whether vaginal or anal penetration occurred before Ms. Eddings died. As discussed in the arguments to follow, errors made bythe trial court in this case went directly to these two issues, and necessarily affected the jury’s verdicts. Several of the errors impacted the jury’s resolution of appellant’s intent and one would have affected the jury’s determination ofwhether Ms. Eddings wasaliveat the time a sexual assault took place. With respect to the issue of intent, in the absence of any convincing evidence on the matter, the prosecution relied upon “other crimes evidence” notably the prior incident involving Toni Pina,to argue essentially: “If he did it before, he probably intendedto do this time.” The twoincidents, however, were not remotely similar and, consequently, evidence regarding the Pina incident was irrelevant on the issue of intent. The evidence constituted improper character evidence which was erroneously admitted over defense objection. This error was compoundedby instructional error which permitted thejurors to consider other crimes evidence involving Norma Knight, Barbara Cady, and Kathy Dunn, which wasclearly admitted for impeachmentpurposes 46 only, in determining appellant’s intent. These errorsbythe trial court lessened the prosecution’s burden on a key elementofits case by improperly permitting and encouraging the jurors to find intent based upon propensity. Also with respect to intent, the trial court excluded an entire category of critical defense evidence including expert testimony by qualified mental health professional regarding the severe personality disorder appellant suffers from, as well as testimony regarding appellant’s history of mental health commitments. This evidence was critical to the jury’s evaluation of appellant’s defense as it would have provided the jury with insight into appellant’s thought processes, and would have explained why appellant might have reacted violently to Ms Eddingsas the result of little or no provocation even though he did not harbor any pre-existing intent to harm her. Finally, with respect to the timing of the sexual assault, the trial court erroneously permitted the autopsy surgeon to render his personal opinion, based upon everything he knew aboutthe case including appellant’s statements to police, that the victim had been raped and murdered andthat she had been raped and sodomized prior to death. The error lessened the prosecutor’s burden ofproofwith respect to this critical issue by presenting the conclusion the prosecution sought to have the jurors draw from the evidence as definitively established by expert testimony. The errors committed by the trial court in this capital trial deprived appellant of his constitutional rights to due process, to a fair trial, and to a reliable adjudication at all stages of a death penalty case. For the reasons discussed more fully below the judgmentof the trial court with respect to appellant’s murder conviction must be reversed. 47 I. THE TRIAL COURT ERRED IN PERMITTING THE JURY TO CONSIDER EVIDENCE OF APPELLANT’S CRIMINAL DISPOSITION IN REACHING VERDICTS ON THE CHARGE OF FIRST DEGREE MURDERAND THE SPECIAL CIRCUMSTANCE ALLEGATIONS. A. INTRODUCTION Before trial the defense moved to exclude (3 CT 541; 4 CT 940), and the prosecution moved to introduce (3 CT 665; 4 CT 876), evidence of unrelated prior misconduct by appellant. The conduct in question related to the Toni Pina case and the incident involving Frances Stuckinschneider. Appellant moved to exclude the evidence on the grounds it was improper character evidence under Evidence Code section 1101, subsection (a), and was more prejudicial than probative under Evidence Code section 352. (3 CT 541- 565.) The prosecution argued that the evidence was admissible under subsection (b) of section 1101 as evidence tending to show “the defendant’s intent and plan when he entered Ruth Eddings[’] home on June 19, 1998.” (4 CT 877.) The matter was heard on October 14, 1998 (6 CT 1552; 8 RT 573-609), and the trial court ultimately ruled that evidence relating to the Pina case would be admissible at the guilt phase on the issue of intent (with respect to felony-murder based upon burglary), but evidence relating to the Stuckinschneiderincident would be excluded from the guilt phase. (8 RT 593- 595, 601-602.) However, as discussed more fully below,the trial court erred in failing to exclude all of this material as improper character evidence which was more prejudicial than probative. The error was compounded by jury instructions which permitted the jurors to also consider, on the issueofintent, evidencerelating to three other incidents — involving Norma Knight, Barbara 48 Cady, and Kathy Dunn— which had been admitted for the limited purpose of impeachmentafter appellant elected to testify. The prosecution, in turn, capitalized on the trial court’s instructional and evidentiary errors by urging the jurors to conclude that appellant entered Ms. Eddings’ residence with the intent to sexually assault her with respect to the first degree murder charge under a felony-murder theory and the special circumstances allegations. In light of the fact that appellant’s intent was the central issue of the case, the error was prejudicial and the judgment must be reversed. B. WRITTEN PLEADINGS Appellant filed a “Motion to Exclude Evidence ofUncharged Acts and For Evidentiary Hearing” on August 7, 1998. (3 CT 541.) In the accompanying memorandum of points and authorities, appellant argued that evidence of uncharged acts was inadmissible as character evidence pursuant to Evidence Code section 1101, subdivision (a), and that the uncharged conduct wasnot relevant to any issue in the case. Appellant also argued that the evidence should be excluded as more prejudicial than probative under Evidence Code section 352. Finally, appellant argued that admission of evidence of uncharged acts would violate appellant’s state and federal constitutional rights. (3 CT 541-565.) The prosecution filed a “Memorandum of Points and Authorities in Support of Introduction of Evidence Pursuant to Evidence Code Section 1101(b)” on August 11, 1998. (3 CT 665-669.) The memorandumarguedthat evidence regarding the incident involving Francis Stuckinschneider was admissible under subdivision (b) of Evidence Code section 1101 on the issue of “the defendant’s plan and intent when entering Ruth’s home.” (3 CT 665- 666.) The memorandum also argued that the probative value of the evidence outweighedits potential for prejudice under Evidence Code section 352. (3 49 CT 668-669.) Because Francis Stuckinschneider died of natural causes prior to trial, the prosecution sought to prove the incident by means of prior statements she made to her granddaughter Sherry Melson and her granddaughter’s husband Michael. These statements were argued to qualify as spontaneous declarations pursuant to Evidence Code section 1240 in a motion filed by the prosecution on August 6, 1998. (3 CT 363-368.) Subsequently, on August 14, 1998, the prosecution filed a “Supplemental Memorandum ofPoints and Authorities in Support ofIntroduction ofEvidence Pursuant to Evidence Code Section 1101(b)” arguing that evidencerelating to the Pina incident would also be admissible on the issue of “defendant’s intent and plan when he entered Ruth Eddings’ homeon June 19, 1998.” (4 CT 876- 877.) Appellant filed a “Response to the People’s Motion to Introduce Additional Evidence ofUncharged Acts” on October1, 1998. (4 CT 940.) In the response appellant argued that evidence relating to the Pina incident and the Stuckinschneiderincident was not relevant on the question of intent, and that evidence regarding the Stuckinschneider incident was inherently unreliable hearsay which should not be admitted for any purpose. (4 CT 940- 954.) C. HEARING ON THE MOTIONS The matter was heard on October 14, 1998. (6 CT 1552; 8 RT 573- 602.) At the outset of the hearing, the court paraphrased the prosecution’s position as follows: [T]he People are endeavoring to introduce this evidence under the theory that it is relevant to the charge in the special allegation under 190.2(a)(17)(g), that is, that the murder which occurred andis alleged under CountI was done underthe special circumstancethat it occurred in the commission of or attempted commission ofor in the immediate 50 flight after committing or attempting to commit the crime of burglary, in violation of Section 459 of the Penal Code. (8 RT 583.) The prosecutor added that she believed the evidence would also be “relevant to the special circumstance of rape and sodomy.” (8 RT 584.) The court, however, correctly noted that: “Neither of those crimes has a scienter requirementor a specific intent requirement. They are general intent crimes. Now,it distinguishes them from the burglary special circumstance, and the People would, therefore, not be offering it for the purpose of showing intent becauseit’s not relevant on the issue of intent.” (8 RT 584.) The court then inguired whether the prosecution was offering the evidence “on a commonplan or schemetheory,” and the prosecutor respondedaffirmatively. She also argued that the evidence was admissible under Evidence Codesection 1108. (8 RT 585.) The court announced tentative decision to exclude evidencerelating to the Stuckinschneiderincident, under Evidence Codesection 352,as follows: Myinclination at this point in time is to grant the defense motion in limine [under Evidence Code section 352] with regard to the 1985 incident concerning Francis Stuckinschneider. The reason for that is primarily the fact that the — I believe there’s insufficient evidence to establish what the defendant’s intent was in this particular incident based on the evidence that has been presented. With regard to the statement taken from Francis Stuckinschneider apparently in 1996, which would have been somenineyearsafter the incident, when she’s asked what happened, her response on page 2 is “He just got fresh with me.” When asked for further explanation as to what happened, on page 6, [she stated] “He got fresh with me. He grabbed me. I got away from him and went down the steps, and he followed me down thesteps.” Whenasked “Whenheused both his hands to grab you?” she responds “T don’t remember.” 51 Another individual present at the interview, Larry Stuckinschneider, asked “He never touched no private parts?” to which Mrs. Stuckinschneider responds, “No, no, no. He didn’t do nothinglikethat. Hesaid something about me being old enough or something, but I don’t remember.” When asked on page 10 by Mr. Daw, “Did he make any sexual statements to you?” her response was“No,no.” And then at the bottom of page 12, she makes a statement “He never did get fresh with me at any time.” It’s certainly clear that something happened. The account of the incident given by Miss Melson and Mr. Melson is more graphic and specific. In both accounts, they report that their grandmasaid, quote, he tried to rape me, close quote. Miss Melson says at one point in time “She said he said he is — “He said he was going to fuck me, and he had a knife and I was scared.” The interviews with the Melsons occur apparently in October of 1997, more than a year after the interview with Mrs. Stuckinschneider, and there is no evidence that’s been presented to the Court of a contemporaneousaccountofthe incident reported back in 1985. So the evidence is at best ambiguous on the issue of intent, and the Court is going to reject the People’s offer to prove the statements made by the victim under the provisions of Evidence Code Section 1240 as spontaneous statements. That is my current inclination with regard to the Stuckinschneiderincident. (8 RT 593-594.) The court then announced a tentative decision to admit evidence relating to the Pina incident under Evidence Code section 1101, subdivision (b), as evidence of intent relating to the burglary, but not for more general purposes under Evidence Codesection 1108, as follows: With regard to the 1990 incident regarding Toni Pina, the Court’s inclination at this point in time is to grant — is to deny the motion made by the defense and to grant the People’s request to present that evidence underthe provisions of . . . Evidence Code Section 1101(b) 52 — on the issue of the intent with which the defendant entered the residence on the 18th or 19th of June, 1996, under the special circumstance ofmurder in the commission of a burglary. The witness, MissPina, appearsto be available to testify as to the circumstances and that there was somekindofassault. * OK OK % The evidence is somewhatcollateral in nature insofar as it may be corroborative of other evidence relating to the other special circumstances. The evidence may also be considered, depending on how the defense wishes to proceed on some of these issues, on the issues relating to the reliability of the defendant’s admissions or statements made to Detective Spidle. At this point in time with regard to this particular motion, the People are not seeking and the Court is not ruling on the admissibility of the results ofthe attack on Miss Pina, namely, that the defendant may have suffered a conviction, and as a result of that conviction, he was incarcerated and subsequently released from prison and placed on parole, but merely that Miss Pina may come andtestify concerning the event for the limited purpose of establishing defendant’s intent with regard to that special circumstance. (8 RT 594-595.) In light ofthe court’s intended ruling, argument by defense counsel was limited to the admissibility ofevidencerelating to the Pina incidentasfollows: MR. CABRERA: Very well, your Honor. Ill move on. To the Pina matter, your Honor, under 1101(b) and the cases interpreting that, we have cited People vs. Robbins, Cal Supreme Court 1988, 45 Cal.3d 867. In that case, I think the court’s actual holding was, quote, “In order to be admissible to proveintent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably harbored the sameintent in each instance.” As far as common design and plan, under 1101(b) and underthe intent aspect of 1101(b), the incident with Toni Pina is — other than the fact that there was some activity of a sexual nature and that both were female, I believe that there is insufficient commonality of factors. 53 In the instant matter, Mrs. Eddings was, I believe, 82 years old at the time of the incident. In the Pina matter, we have a 17-year-old girl. In the case of the — in the instant case, the alleged burglary that — there’s a burglary alleged — excuse me —1nthe Indictmentas one of the special circumstances. In the Pinamatter, as I understand the information regarding Pina, there wasno burglary. Mr. Jones would, in fact — was,in fact, a temporary residentofthe sister’s residence from time to time during the events in question. In this case — in the incident alleged herein, the Eddings incident occurredat night. In the Pina matter, the incident occurred during the day. In this instance, there is allegations of violence, and | believe that the prosecution is going to be presenting the evidence of the murder. In Pina, there was no evidence of any type of violence. * Allin all, your Honor, the actual differences are so overwhelmingas to not make them reliable to show a plan or modus operandi or preparation. Motive certainly is an issue, and | think in this case to show theintent is really attempting to bootstrap the intent issue by the admissibility of the defendant’s propensity to commit such anact. In Pina, if allowed to be introduced at trial — excuse me — the Pina evidence is merely to inflame the jury, that if he could have donethis to a 17-year-old girl in 1990, he certainly has the propensity to doit now. I don’t believe that absent a showing of a burglary in the Pina matter that you have a sufficient commonality of factors. So under — and further and finally — and even if there is a sufficient showing under 1101(b), the factors, as I’ve distinguished them for the Court, would make the matter overly prejudicial under Evidence Code Section 352, and I’d ask the Court, in spite of its intended ruling, to not allow the evidence in this case. 54 As we’ve also pointed out, to allow that kind of presumption to be created by the introduction of the Pina incident in 1990is effectively relieving the prosecution of proving an essential elementof its case in chief, namely, the specific intent to commit the burglary andfirst- degree premeditated murder, and if that’s the case, your Honor, it’s certainly a violation of the holding in Paterson vs. New York, 432 US. 197, and it’s a violation of Mr. Jones’ rights under the Sixth Amendment, Fourth Amendment, and the Fourteenth Amendment of the federal constitution and related state provisions. So I’d ask the Court to not allow the evidence of the Pina matter based upon my foregoing argument. (8 RT 599-601.) The court ultimately held in accordance with its announcedtentative decision as follows: The Court’s inclination, as I stated before, is to admit this evidence for the purpose ofestablishing, if it tends to do so, the defendant’s intent at the time ofthe entry into the Eddingsresidence on June 18th or 19th. I do notfind at this point in time that there is a sufficient commonality between the events involving Miss Eddings’ residence and the events involving the Pina assault to justify an admission under the common plan or scheme theory as articulated by the Supreme Court in the Ewoldt decision andits progeny, so | would not be admittingit for that purpose. (8 RT 602.) D. EVIDENCE AT TRIAL Asdiscussed morefully in the statement of facts, Toni Pinatestified in the prosecution’s case-in-chiefthat when she was16 yearsold, andliving with appellant’s sister and her husband, she wasalonein the house withappellant one morning whenhe pushedherinto a bedroom andforced her to perform an act of oral copulation. Appellant did not hit or physically injure Pina, nor did he prevent her from leaving the house after the incident. (17 RT 1817-1824.) Pursuant to the trial court’s pre-trial ruling, the jury was not informed of appellant’s prior conviction during the prosecution’s case-in-chief. 55 Additionally, no evidence was presented by the prosecution regarding any other uncharged acts of misconduct, and statements made during appellant’s interrogation in this case regarding the Stuckinschneider and Cady incidents were redacted from the tape and transcript provided to the jury. (15 RT 1629.) | The situation changed whenappellant exercised his night to testify. At that point the court ruled appellant could be impeached with his prior conviction related to the Pina incident, and the prior conviction allegation in that case would no longer be bifurcated. (24 RT 2530.) The prosecution also argued that all of the prior incidents involved moral turpitude and were, therefore, admissible for impeachment purposes under People v. Wheeler (1992) 4 Cal.4th 284. (24 RT 2533.) Asto the Pina incident, the court ruled that the prosecution would be permitted to cross-examine appellant with regard to the conviction as well as the underlying facts. (24 RT 2534.) The court also permitted cross-examination with respect to the incidents involving Norma Knight, Barbara Cady, and Kathy Dunn. (24 RT 2535.) In so ruling the court determinedthat the evidence wasnot more prejudicial than probative under Evidence Code section 352. (24 RT 2542.) Whenquestioned by the prosecution regarding these matters, appellant admitted that in 1972 he walked into a classroom and stabbed a teacherin the back, although he did not know the teacher’s name was Norma Knight. (24 RT 2563.) He also admitted he went to Barbara Cady’s house one night, found her asleep, and “jumped on her.” Hetestified that he was under the influence of drugs at the time and did not remember much else about what happened, but denied he had intended to rape Cady. (24 RT 2563-2565, 2590- 2591.) With respect to the Pina incident, appellant admitted he had been convicted of felony sexual assault with intent to commit rape and forced oral 56 copulation (24 RT 2575); however, he denied committing these crimes (24 RT 2561, 2576, 2610). In addition to cross-examining appellant with respect to these other incidents, the prosecution was permitted to introduce documentsrelating to appellant’ prior prison commitment pursuantto Penal Codesection 969b. (25 RT 2684-2685, 2693.) The court overruled appellant’s objection to this evidence pursuant to Evidence Code section 352 reasoning as follows: UnderArticle 1 Section 28 of the California constitution, the prior is admissible as relevant evidence on the issue of credibility of the witness. The Court has considered the exercise ofits discretion under Evidence Code Section 352 to exclude the prior. The prior is — involves a crime of moral turpitude as well as being a felony andit is relevant in this case. And that is without regard to the fact that the prior relates to the testimony of a witness who wasoffered by the People under Evidence Code Section 1101, subdivision (b), and the fact that on cross- examination andI believe redirect examination the defendant himself denied responsibility for the actions for which he was convicted. There has been — continuesto deny responsibility for the actions involving the alleged victim in this case. (25 RT 2685-2686.) The prosecution wasalso permitted to call in rebuttal Brett Johnson,the Riverside County Sheriff’s Department deputy who hadarrested appellant in connection with the Pina case. Johnsontestified that, before he had explained anything about the charges, appellant said: “I didn’t touch thatlittle girl. I want to turn myself in and clear this up.” (25 RT 2671.) As Johnson transported him to jail, appellant made several more statements. He explained that he had “partied” very hard the night before and wentto his sister’s house because he did not feel he should drive all the way home. Hesaid he spoke 57 to his brother outside the house then went in and wentto sleep. (25 RT 2674.) When Johnson asked him about the relevance of a washcloth, he said he had a washcloth on his head like a cold compress while he was sleeping. Appellant also told Johnsonhe had been with prostitute the night before and, as a result of that encounter, there was a semenstain onhis shirt; however, he said the shirt had since been washed. (25 RT 2675-2676.) Appellant asked to have a doctor present whenthe rape kit was taken to verify he had a scar on his penis which he believed would be helpful to his defense. (25 RT 2676.) Johnsontestified that, when the rape kit was taken, he observed an abrasion on one side of appellant’s penis, a scar on the other, and a pink substance which appellant said was Calamine lotion. (25 RT 2677.) When the nurse swabbed appellant’s penis with a cotton swab, and told him it was for evidence of vaginal secretions, appellant said he had touched the prostitute’s vagina with his finger. (25 RT 2679-2680.) Also called in rebuttal regarding the Pina incident was a Riverside County superior court clerk who heard appellant make a statementoutside of the courtroom during that case. Kathy White testified that after Ms. Pina testified at trial, a lunch break was taken and during the break Ms. White overheard appellant andhis brother talking outside the courtroom. Appellant’s brother asked him if“she was crying and carrying on.” Appellant said she was not crying, and remarked that it looked pretty good and he thought he was goingto beat this one too. (25 RT 2702-2704.) The prosecution wasalso permitted to play previously redacted portions of appellant’s taped interview with Detective Spidle relating to statements appellant made aboutthe Pina and Cady incidents. (25 RT 2698; 18 CT 4858- 4860.) When Detective Spidle asked appellant about the incident with Toni Pina he replied: “I don’t know what it was. You know,all these years, you 58 know,I had to livein that lie.” (18 CT 4858.) With respect to Barbara Cady Detective Spidle asked appellant: “What happened with Barbara?” Appellant replied: “Same thing, dope and beer and stuff and —” Detective Spidle then asked: “But, I mean, what did youtry to do, rape her?” and appellant replied: “Yeah.” (18 CT 4859.) Detective Spidle also asked appellant: “. . . the sexual urge that you have that cause, causes you to wanna,a, force sex on somebody like this . . . it doesn’t differentiate between younger women and older women, does it?” Appellant replied: “I guess, I guess not. It don’t look like it.” (18 CT 4860.) E. INSTRUCTIONS AND ARGUMENTTO THE JURY At the time Toni Pinatestified, the trial court instructed the juryas follows: Ladies and gentlemen, | should indicate before we proceed much further that this evidence from MissPinais being presented to you for a limited purpose. She is going to be discussing what occurred, obviously, in 1990. And you may considerit for the limited purpose, if it is helpful for you, in evaluating the state of mind ofthe defendant, William Alfred JonesJr., on June 19" 1996, includingthe state ofmind and the existence or nonexistence of the specific intent which may be an elementofthe crime charged or of the special circumstances which are alleged in this case. (17 RT 1818.) After the prosecution was permitted to cross-examine appellant regarding the Pina, Cady and Knight incidents, the court instructed the jury that instances of prior misconduct could be considered for purposes of impeachment and in determining appellant’s intent as follows: Ladies and gentlemen,let me remind you of somethingthatI indicated to you earlier. There was testimony early on, a couple weeks ago from Miss Pina, and then again today there has been testimony from Mr. Jones about incidents that occurred before June 19th or 18th, 1996. You may consider those incidents for a limited purpose. 59 At this point in time, with regard to the incidents that Mr. Jones has testified to, you may consider those incidents insofar as they may weigh on your determination of the witness’s credibility. The fact that an individual, for example, has been convicted of a felony offense or has committed a criminal act evidencing dishonesty or moral turpitude may be considered by you in weighingthe credibility ofsuch a witness. The fact of such a conviction or such activity does not necessarily discredit or destroy the testimony of a particular witness. Howeverit is a factor which the law says you may take into account in weighing the credibility of such a witness. In addition to that, you may consider such evidenceifit has a tendency to show the existence or nonexistence of the required specific intent or mental state which is an element of the crime or special circumstance which ts charged in this particular case. At least at this point in time, and for no other purpose, you may consider such evidence. (24 RT 2599-2600.) At the conclusion of the case the trial court again instructed the jury that evidence of prior crimes could be considered in determining appellant’s intent: Evidence has been introduced for the purpose of showing that the defendant committed crimes other than those for which heis currently on trial. Such evidence, if believed, was not received and may not be considered by you to prove that defendantis a person ofbad character or that he has a disposition to commit crimes. Such evidence was received and may be considered by you only for the limited purpose of determining,if it tends to show, the existence on or about June 19, 1996, of the specific intent or mental state which is a necessary element of the crime or special circumstance charged. For these limited purposes (and as I have previously instructed you with regard to the credibility of witnesses), you must weigh such evidence in the same manneras youdoall other evidencein the case. Youare not permitted to consider such evidencefor any other purpose. 60 (6" Supp. CT 25; 26 RT 2901.) The court also instructed the jury that the prosecution had the burden to prove prior crimes by a preponderance of the evidence (6" Supp. CT 25; 26 RT 2902), and defined preponderanceof the evidence. (6" Supp. CT 25; 26 RT 2902.) | In closing argument, on morethan one occasion, the prosecution urged the jury to considerall of the prior crimes evidence in determining appellant’ s intent. Initially the prosecutor argued: You heard a lot of testimony and you will hear arguments about what was Billy Jones’ intent when he wentoverto that house, and that’s key to this case. What was his intent? The defendant’s opening statement I believe said that Bill Jones was doing the honorable thing of checking on his neighbor, and that’s all he was doing. He was being a good neighbor to Ruth Eddings. And whenhetookthe stand andtestified in court, when heraised his hand and sworeto tell the truth to all of you, he said no, I never intended to have sex with her. I just went overthere because I was going to check on her. And what he told you in court is something you never heard him tell Detective Spidle. You have to decide whetheror not Billy Jones was being truthful whenhetestified in court, when he gave you the new and mostrecent version. In determining whether Billy Jones is truthful and credible, you can consider what he did to the teacher Norma Knight when the defendant was in high school. Walked in on a teacher, a female teacher he didn’t even know, wasn’t his teacher, she did nothing to him. She was simply sitting in her classroom eating her lunch, and he stabbed her in the back. In determining whetheror not the defendant was truthful when hesaid “T only went over to check on Ruth Eddingslike a good neighbor,” you can consider what he did to Barbara Cady. That washis girlfriend’s mother — whenhe went overto her house and there was no oneelse home, and he entered her house and found herasleep and attempted to rape her. When youconsider what the defendant’s intent was when he went over to Ruth Eddings’ house, you can consider whathe did to Toni Pina and appreciate the parallels between what happened to Toni Pina and what 61 happened to Ruth Eddings. Toni Pina wasonly 16 years old, living with the defendant’s sister. She was Billy Jones’ brother-in-law’s niece. He had never been alone with her before that date, and he assaulted her. He waits until he is left alone with her. He prevents her from leaving the house. She had never done anything to him before. He had no problems with Toni Pina. Takes her back into the bedroom, forces her to orally copulate him, assaults her with intent to commit rape. Hethen hasher wipeherface,tells her don’t call the police. He leaves. He goes home. Hetakes a shower. He washeshis clothes, and he says he was with a hookerthe night before, and it just so happened when he waswith a hooker, she provided the same sexualactivity that he forced on Toni Pina, oral copulation. With Ruth Eddings, he had neverbeen left alone with her in her house before, someone he knew for many years, someone who had never done anything wrong to him. He wentover to her house. He waited for an opportunity when his parents were gone, the first time they had ever gone on a vacation and left him alone. He went over to Ruth Eddings’ house, knocked on the door, and Ruth Eddings madethefatal mistake of simply opening the doorto let in a neighbor. He brutally beats her. He rapes her. He sodomizesher. Hestranglesherto death. He burns her house, burns her body to destroy evidence. He goes home. Hetakes a shower, and he washeshis clothes, and earlier that evening he had told his brother he was going to be with a hooker. (26 RT 2788-2790.) Later the prosecutor again referred to the improper character evidence and argued: You heard that you can’t say, well, I’m considering the evidence involving Norma Knight and Barbara Cady and Toni Pina andthenjust simply say, well, if he did it to those women,he must be guilty of what he did to Ruth Eddings. When the defendanttook the standin this case — and that was his choice and his alone — what becameatissueis his credibility, and that is at issue for every witness whotakes the stand, every single witness. Their credibility is in issue, and you are the sole judges of the believability of any witness. The defendant admitted what he did to Norma Knight, stabbing herin the back. He admitted what he did to Barbara Cady, attempted to rape her. You can consider that for the believability of the witness in 62 everything he said when he wasonthe stand, including his testimony in court, that he didn’t go over to Ruth Eddings’ houseto have sex. You can considerthe incident involving Toni Pina andall the evidence relating to Toni Pina’s assault in considering the defendant’s intent when he went over to Ruth Eddings’ house. Thelaw is very clear on what evidence can be brought before you and what evidence cannot. The law allowsthis kind of evidenceto be put before you, and the defendant admitted, as far as Barbara Cady and Norma Knight were concerned, that that evidence was true, and yet somehow the People are doing something wrongby presentingthe truth to you, by providing you with the truth. It is no reflection on the strength or weakness of the People’s case. It is a reflection on howyouare to judge the defendant’s testimony. (26 RT 2856-2857.) The prosecution, thus, relied heavily upon improper evidence of criminal disposition to prove appellant’s intent — a matter described by the prosecutor as “key to this case.” F, EVIDENCE REGARDING THE TONI PINA INCIDENT SHOULD HAVE BEEN EXCLUDED AS IMPROPER CHARACTER EVIDENCE. Generally, prior crimes evidenceis not admissible to establish criminal disposition and probability of guilt. As the United States Supreme Court stated in Michelson v. United States (1948) 335 U.S. 469: The State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because characteris irrelevant; on the contrary,it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undueprejudice. (id. at pp. 475-476, fns. omitted.) In California this prohibition is codified in Evidence Code section 1101, subdivision (a), which providesthat “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence ofreputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” This section expressly prohibits the use of evidence ofprior bad acts committed by the defendant “if the only theory of relevanceis that the accusedhasa propensity (or disposition) to commit the crime charged andthat this propensity is circumstantial proof that the accused behaved accordingly on the occasion of the charged offense.” (People v. Thompson (1980) 27 Cal.3d 303, 316.) As recognized in Michelson, supra, the purposes of the foregoing exclusionary rule are threefold: (1) to avoid placing the accusedin a position in which he must defend against uncharged offenses, (2) to guard against the probability that evidence of uncharged acts would prejudice the defendant in the minds ofthe jurors, and (3) to promote judicial efficiency by restricting proof of extraneous crimes. (People v. Thomas (1978) 20 Cal.3d 457, 464.) In brief, although a defendant’s prior criminal acts may demonstrate his bad character and his propensity or disposition to commit the crime charged, a defendant is not to be convicted because the prosecution can prove, on his prior or subsequent record, that he is a bad man. (Jbid.) Although evidence ofprior bad acts is generally inadmissible to prove that the accused had the propensity or disposition to commit the crime charged, “evidence may be admitted, even though it embraces evidenceofthe commission of another crime, if it logically tends to prove a material element 64 in the People’s case.” (People v. Guerrero (1976) 16 Cal.3d 719, 724.) In this regard subdivision (b) of section 1101, providesas follows: (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove somefact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. As subdivision (b) recognizes, that a defendant previously committed a similar crime can be circumstantial evidence tending to establish his identity, intent, and motive with respect to the present crime. Like other circumstantial evidence, admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence of any other rule requiring exclusion. (People v. Catlin (2001) 26 Cal.4th 81, 146.) “Evidence ofuncharged crimesis admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimesare sufficiently similar to support a rational inference of identity, commondesign or plan, or intent.” (People v. Kipp (1998) 18 Cal.4th 349, 369.) To be admissible on the question ofintent, the prior conduct and the charged offense must be sufficiently similar to support the inference that the defendant probably harboredthe sameintent in each instance. (People v. Cole (2004) 33 Cal.4th 1158, 1194; People v. Yeoman (2003) 31 Cal.4th 93, 121; People v. Ewoldt (1994) 7 Cal.4th 380, 402.) In the present case, however, the offenses were decidedly dissimilar and did not rationally support an inference that appellant probably harbored the same intent in each instance. Although both incidents involvedalleged sexual assaults against females, that is where the parallels end. The victims werenot 65 alike since one incident involved a teenager, while the other involved a senior citizen. Further the manner in which the offenses were alleged to have been committed were not comparable in that the Pina case involved only pushing while the present case involved violence and homicide. Even the sex offenses alleged were different, with the prior involving oral copulation and the present including rape and sodomy. Finally, the incidents were not even committed close in time since the Pina offenses were committed more than six years prior to the charged offenses. Considering the circumstances, the Pina incident and the present case were not sufficiently similar to support the inference that the defendant probably harbored the same intent in each instance. In this regard the present case is unlike others where this Court has found sufficient points of similarity between different incidentsto logically support an inference that the defendant probably harbored the sameintent with respect to each. For example, in People v. Lewis (2001) 25 Cal.4th 610, the defendant denied any intent to steal in a burglary-murder, robbery-murder case. There the prosecution soughtto introduce evidence that, hours before the victim waskilled, the defendant had forcibly taken money from another man in the same apartment building, arguing that the evidence was highly probative ofthe defendant’s intent in entering the murder victim’s apartment, particularly in light of his testimony that he entered the unit by mistake and with no intent to steal. The trial court admitted the evidencefor this purpose. (Id. at p. 636.) On appeal this Court found the two events were sufficiently similar based uponthe following: “In both the charged and unchargedcrimes, defendant overcamethe victim by force, then reached into the victim’s back pocket to obtain his wallet. Both times, after having taken the money, defendant proceeded to [a nearby] apartment to buy methamphetamine. Although the incidents themselves are not particularly distinctive, they are 66 sufficiently similar to support an inference that defendant harbored the same intent in both instances, that is, to forcibly obtain cash from the victim.” (/d. at p. 637.) Consequently, the Court found “no abuse of discretion and no federal constitutional violation in the admission of the uncharged crimes evidence.” (Jbid.) Similarly, in People v. Hayes (1990) 52 Cal.3d 577, this Court found that other crimes evidence was properly admitted on the issue of intent where the defendant was convicted of robbery, burglary, and first degree murder and the jury found as special circumstances that the murder was committed in the perpetration of robbery and burglary. In that case the body of the victim,the resident managerof a motel, was found on the floor of one ofthe motel rooms. He had been bound with coat hanger wire and stabbed to death. The motel’s office, as well as the adjoining living quarters for the manager, had been ransacked. Missing items included cigarettes and cash. Testifying in his own behalfat trial, the defendant admitted killing the victim but maintainedthat he did so only after being assaulted by him. (/d. at p. 597.) The prosecution was permitted to introduce evidence of another incident, in which the defendant had robbed another man in a hotel room,on the issue ofintent. Examining the circumstances of the two incidents, this Court found “striking similarities” between them, and determined the evidence regarding the other crimes was properly admitted on the issue of intent, reasoning as follows: In each instance, defendant assaulted a male victim in a motel room that defendant was occupyingorvisiting, the victim was bound with coat hangers, and another room at the motel was searchedfor property belonging to the victim. These similarities have substantial probative value on a material disputed issue. Defendant’s intent when he assaulted and bound Cross was shown by Cross’s testimony: to take any money Crosscarried with him, to make Cross reveal the location of any moneyin Cross’s motel room, and to take the money from Cross’s room. 67 Becausehetreated Patel in the samedistinctive fashion as Cross — luring Patel to a motel room,assaulting him, and binding him hand and foot with coat hanger wire — it is reasonable to infer that defendant had the sameintent, namely, to take money and other valuables. The trial court’s ruling admitting the evidence was not an abuse of discretion. (id. at p. 617.) Unlike Lewis and Hayes, in the present case there were essentially no significant points of similarity between the current and past offenses. The Pina incident and the present case were, therefore, not sufficiently similar to logically support an inference that appellant probably harbored the sameintent in each instance. Evidencerelating to the Pina incident was, therefore, not relevant or admissible on the question ofintent and should have been exciuded by the trial court as improper character evidence. G. THE EVIDENCE SHOULD HAVE BEEN EXCLUDED UNDER EVIDENCE CODE SECTION 352 AS MORE PREJUDICIAL THAN PROBATIVE. Even if evidencerelating to the Pina incident was marginally relevant on the issue of intent, it should have been excluded under Evidence Code section 352 as more prejudicial than probative. Once it has been determined that evidence ofprior acts ofmisconduct by the defendantis relevant to some issue other than the defendant’s disposition or propensity to commit the crime charged, additional factors must be taken into consideration. “Admission of [other crimes] evidence involves, inter alia, the danger of confusing issues, introducing collateral matters, or tempting the jury to condemn the defendant because he has escaped adequate punishment in the past. [Citation.] It is therefore appropriate, when the evidenceis of an uncharged offense,to place on the People the burden of establishing that the evidence has substantial probative value that clearly outweighsits inherent prejudicial effect.” (People v. Bean (1988) 46 Cal.3d 919, 938.) 68 Courts have cautioned that evidence of other acts should be scrutinized with great care in light of its inherently prejudicial effect, and should be received only whenits connection with the charged crimeis clearly perceived. (See People v. Daniels (1991) 52 Cal.3d 815, 856; People v. Deeney (1983) 145 Cal.App.3d 647, 655; People v. Elder (1969) 274 Cal.App.2d 381, 393-394.) The exercise of discretion to admit or exclude evidence pursuant to Evidence Code section 352 should, therefore, favor the defendant in cases of doubt because in comparing prejudicial impact with probative value the balance “is particularly delicate and critical where whatis at stake is a criminal defendant’s liberty.” (People v. Lavergne (1971) 4 Cal.3d 735, 744; People vy. Murphy (1963) 59 Cal.2d 818, 829.) The standard of reviewfor evidence admitted under section 352 is abuse of discretion. (People v. Cole, supra, 33 Cal4th at p. 1195.) In determining the probative value of the uncharged offense, the court should consider: “‘(1) the materiality of the fact sought to be proved . .; (2) the tendency of the uncharged crimeto .. . disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.’ [Citation.]” (People v. Deeney, supra, 145 Cal.App.3d at p. 655 [emphasis omitted]; see also People v. Daniels, supra, 52 Cal.3d at p. 856.) In the present case evidence regarding the Pina incident was argued to be relevant on issue of intent, a key issue in the case. However, the evidence had no tendencyin reason to prove appellant’s intent in any mannerother than as evidence ofpropensity becausethe incidents did not share sufficient points of similarity. Even if it is assumed that evidence regarding the Pina incident had some probative value on any issue other than appellant’s character, the probative value would have been slight at best. On the other hand, it’s potential for prejudice was great since courts have long recognized the 69 prejudicial nature of other crimes evidence because of its tendency to “overpersuade”the jury. (Michelson v. United States, supra, 335 U.S.at pp. 475-476 [69 S.Ct. 213, 218-219, 93 L.Ed. 168]; Old Chief v. United States (1997) 519 US. 172, 181 [117 S.Ct. 644, 650-651, 136 L-Ed.2d 574]; People v. Alcala (1984) 36 Cal.3d 604, 630-631; People v. Falsetta (1999) 21 Cal.4th 903, 913-915; People v. James (2000) 81 Cal.App.4th 1343, 1353.) Here the evidenceofprior misconductlacked sufficient probative value to overcomeits inherently prejudicial nature. The trial court, thus, erred in failing to sustain the defense objection to this testimony both under Evidence Code section 1101 as impropercharacter evidence and under Evidence Code section 352 as more prejudicial than probative. H. THE JURY INSTRUCTIONS ERRONEOUSLY PERMITTED THE JURORS TO CONSIDER EVIDENCE OF OTHER CRIMES WHICH THE TRIAL COURT HAD DETERMINED WAS NOT RELEVANT ON THE QUESTION OF INTENT IN RESOLVING THIS VERY ISSUE. As noted above evidence regarding the incidents involving Norma Knight, Barbara Cady and Kathy Dunn was admitted for impeachment purposes only. Yet the jury instructions did not inform jurorsofthis limited purpose. To the contrary, the instructions permittedthe jurors to consider the evidence for purposes of determining appellant’s intent, a clearly improper purpose. In this respect the instructions were erroneous. It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding ofthe case. (People v. Cummings (1993) 4 Cal.4th 1233, 1311; People v. Perez (1992) 2 Cal.4th 1117, 1129; People v. Daniels, supra, 52 Cal.3d at p. 885.) The instructions must be full and complete (People v. Poddar, supra, 10 Cal.3d at p. 759), and the court must insure that the 70 instructions adequately state the law andassist the jury in resolving the issues addressed (People v. Key, supra, 153 Cal.App.3d at p. 898). The trial court has a correlative duty to refrain from instructing on principles of law which have the effect of confusing the jury or relieving it from making findings on relevant issues (People v. Satchell, supra, 6 Cal.3d at p. 33, fn. 10). Further, “i]t is error to give an instruction which correctly states a principle of law which hasnoapplication to the facts of the case.” (People v. Sanchez, supra, 30 Cal.2d at p. 572.) Where, as here, evidenceof prior crimes is admitted for impeachment purposes, and other prior crimes evidence also has been admitted pursuantto Evidence Code section 1101, subdivision (b), the trial court should instruct the jury as to which evidenceis referred to in the CALJIC No. 2.50 instruction. (People v. Catlin, supra, 26 Cal.4th at p. 146; People v. Rollo, supra, 20 Cal.3d at p. 123, fn. 6.) Thetrial court erroneously failed to do so here. The prejudice inherent in the erroris clear. Evidenceofprior bad acts is closely scrutinized because such evidence is likely to inflame the passions of the jury, and where “passionsare aroused, the jury may convict simply because the defendantis a bad man, not because he is proven guilty.” (People v. Hoze (1987) 195 Cal.App.3d 949, 954.) Itis generally recognized that “[a] Jury which is made aware of a similar prior conviction will inevitably feel pressure to conclude that if an accused committed the prior crime he likely committed the crime charged.” (People v. Rist (1976) 16 Cal.3d 211, 219.) As this Court has observed: “If a defendant testifies and is impeached by meansof a prior felony conviction, there is a widely acknowledged danger that this evidence will be misused by the trier of fact.” (People v. Fries (1979) 24 Cal.3d 222, 227.) 71 eee Even whenproperlimiting instructions are given “‘the jury is likely to consider this evidence for the improper purpose of determining whether the accusedis the type ofperson who would engagein criminalactivity.”” (Jbid.) Specifically this Court hasstated: As the United States Supreme Court has noted in a related context, evidence of a “defendant’s prior trouble with the law . . is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” [Citation.] This tendency to prejudge the issue of guilt denies an accused the presumption ofinnocence and lessens the burden of the prosecutor to prove guilt beyond a reasonable doubt. There is also the “obvious danger”that the jury will decide that based on his prior convictions, the accused “ought to be put away without too much concern with his present guilt.” [Citation.] Further, the admission of prior convictions often confuses the issues at trial and “draw[s] [the juror’s] minds awayfrom the real issue” of guilt or innocence. [Citation.] (People v. Fries, supra, 24 Cal.3d at p. 228.) Here no limiting instructions were given. In the absence ofany such instructionitis likely the jurors accepted the prosecutor’s invitation to consider evidence of other crimes which had been admitted for impeachmentpurposesin determining appellant’s intent. The danger that appellant’s was improperly convicted on the basis of propensity evidence is, therefore, clear. 1. The Issue Is Cognizable on Appeal Although there was no specific objection made on the record to this aspect of the jury instructions, an appellate court’s authority to review instructional error despite the absence of an objection or requestis firmly grounded in Penal Code section 1259. (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 6.) This section provides, in pertinent part: “The appellate court may also 72 review ary instruction given, refused or modified, even though no objection was madethereto in the lower court, if the substantial rights of the defendant were affected thereby.” The sua sponte obligation to correctly instruct “reflect[s] concern both forthe rights ofpersons accused of crimesand for the overall administration ofjustice.” (People v. Wickersham (1982) 32 Cal.3d 307, 324.) The court’s affirmative duty to correctly instruct the jury, on its own motion, on the general principles oflaw relevant to the issues ofthe case “‘can be negatedonly in that specialsituation in which defense counseldeliberately 2 and expressly, as a matter oftrial tactics’” objects to the rendition of a required instruction or requests an erroneous one. (Ud. at p. 331; People v. Wader (1993) 5 Cal.4th 610, 657-658.) The rule is supported by sound policy considerations which have been explained as follows: This rule is necessary to ensure that an accused’s right to complete instructions is fully protected. “. . . “Nevertheless, error is nonetheless error and is no less operative on deliberations of the jury because the erroneousinstruction may have been requested by counsel for the defense. After all, it is the life and liberty of the defendant in a case suchasthis that is at hazard in the trial and there is a continuing duty uponthepart of the trial court to see to it that the jury are properly instructed upon all matters pertinent to their decision of the cause.’ Accordingly, if defense counsel suggests or accedes to the erroneousinstruction because of neglect or mistake we do not find ‘invited error’; only if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court’s obligation to instruct in the cause.” (Id. at p. 332.) Consequently, claimsofinstructional error are reviewable on appeal even where the error in question wasin effect urged by defense counsel where counsel’s actions were not the result of a conscious and deliberate tactical choice. (People v. Beardslee (1991) 53 Cal.3d 68, 88; People v. 73 Hernandez (1988) 47 Cal.3d 315, 353; People v. Bunyard (1988) 45 Cal.3d 1189, 1234.) Herethe recordis entirely silent as to appellant’s position on thetrial court’s failure to properly limit the other crimes evidence. Initially it had been the rule that in orderfor the doctrineofinvited error to apply, the record must reflect an articulated tactical purpose on the part of defense counsel (People y. Trevio (1988) 200 Cal.App.3d 874, 877, fn. 7). More recent cases may have eased this requirement by finding “invited error” where tactical objection wasinferable from the record. (People v. De Leon (1992) 10 Cal.App.4th 815, 824; People v. Duncan (1991) 53 Cal.3d 955, 969-970[all-or-nothingtactical strategy]; People v. Cooper (1991) 53 Cal.3d 771, 827 [all-or-nothingtactical strategy]; People v. Whitt (1990) 51 Cal.3d 620, 641 [“Death row” redemption strategy].) However, where as here the effect of counsel’s actionsis to lessen the prosecution’s burden of proof, there would appear to be no conceivable tactical purpose. (See People v. Beardslee, supra, 53 Cal.3d at p. 88 [“There appears no conceivable tactical purpose, however, for defense counsel’s requesting an instruction that would erroneously lessen the prosecutorial burden of proving malice, premeditation, or deliberation.”].) Consequently, no tactical purpose can be implied from the silent record, and it cannot be said that the error complained of on appeal was invited by counsel based upon a conscious and deliberate tactic choice. The error is, therefore, properly addressed on appeal. I. THE TRIAL COURT’S ERROR ALSO VIOLATED APPELLANT’S FEDERAL CONSTITUTIONAL RIGHTS Besides the state law violations set forth above, the error deprived appellant of his constitutional rights. State evidentiary rules create “a substantial and legitimate expectation” that a defendant will not be deprived of his life or liberty in violation of those rules. (Hicks v. Oklahoma (1980) 74 447 U.S. 343, 346.) This expectation is protected against arbitrary deprivation under the Fourteenth Amendment. (/bid.) By misapplying well-established state law that prevents the prosecution from using evidence admitted for a limited purpose as general propensity evidence (Evid. Code, § 1101, subd. (a)), and excludesthe use ofunduly prejudicial evidence (Evid. Code, § 352), the trial court arbitrarily deprived appellant of a state-created liberty interest. Additionally, admission of the evidence violated the Due Process Clause of the Fourteenth Amendment becauseit was unduly prejudicial. (See Payne v. Tennessee (1991) 501 U.S. 808, 825.) Erroneous admission of evidence of uncharged criminal acts may rendera trial fundamentally unfair and thereby violate a defendant’s right to due process. (McKinneyv. Rees (9th Cir. 1993) 993 F.2d 1378, 1380-1381; see also Spencer v. Texas (1967) 385 U.S. 554, 572-574, dis. opn. ofWarren, C.J. [“While this Court has never[so] held. .., our decisions. . . as well as decision by the courts of appeals and of state courts, suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause.”’].) The admission of this evidence also violated appellant’s right to due process under the Fourteenth Amendment, which “protects the accused against conviction except upon proof [by the State] beyond a reasonable doubt of every fact necessary to constitute the crime with which heis charged.” (Jn re Winship (1970) 397 U.S. 358, 364.) Here, the trial court’s erroneous admission of other crimes evidence lightened the prosecution’s burden of proof, improperly permitting the jury to find appellant guilty because ofhis criminal propensity. (See e.g., Sandstrom v. Montana (1979) 442 U.S. 510, 520-524.) The introduction of such evidenceso infected thetrial as to render appellant’s convictions fundamentally unfair. (Estelle v. McGuire (1991) 502 75 U.S. 62, 67; see also McKinney v. Rees, supra, 993 F.2d 1378.) In addition, appellant was deprived ofhis rightto a reliable adjudication at all stages of a death penalty case. (See Lockett v. Ohio (1978) 438 U.S. 586, 603-605; Beck v. Alabama (1980) 447 U.S. 625, 638; Penry v. Lynaugh (1989) 492 U.S. 302, 328, abrogated on other grounds Atkins v. Virginia (2002) 536 U.S. 304.) J. PREJUDICE Because the error here is of federal as well as state constitutional dimension, violating as it does appellant’s right to due process guaranteed by the Fourteenth Amendment to the United States Constitution, as well as his right to a reliable adjudication at all stages of a death penalty case underthe Eighth Amendment, prejudice must be evaluated under the reversible error standard set forth in Chapman v. California (1967) 386 U.S. 18. This test provides that “before a federal constitutional error can be held harmless, the court mustbe able to declare a belief that it was harmless beyond a reasonable doubt.” (Yates v. Evatt (1991) 500 U.S. 391, 402-403, disapproved on other grounds in Estelle v. McGuire, supra, 502 U.S.at pp. 72-73, fn. 4; Chapman v. California, supra, 386 U.S. at p. 24.) The burden is on the beneficiary of the error “either to prove that there was no injury orto suffer a reversal ofhis erroneously obtained judgment.” (Chapman v. California, supra, 386 U.S.at p. 24; see also People v. Louis (1986) 42 Cal.3d 969, 993-994.) Error in admitting the evidenceis, therefore, deemed prejudicial unless the prosecution shows beyond a reasonable doubtthe error did not affect the verdict. (Arizona v. Fulminante (1991) 499 U.S. 279; People v. Bradford (1997) 15 Cal.4th 1229, 1313; People v. Cahill (1993) 5 Cal.4th 478, 510; People v. Sims (1993) 5 Cal.4th 405, 447.) “To say that an error did not contribute to the verdict is . . . to find that error unimportantin relation to everything else the jury considered on the issue in question,as revealed in the 76 record.” (Yates v. Evatt, supra, 500 US.at p. 403; see Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [the proper Chapmaninquiry is whether the guilty verdict actually rendered in the trial at hand was surely unattributable to the error].) Where federal constitutional error is not involved, the erroneous admission of other crimes evidence is prejudicial if it appears reasonably probable that a result more favorable to the defendant would haveresulted had the prior crimes evidence not been admitted. (See People v. Cole, supra, 33 Cal.4th at p. 1195; People v. Welch (1999) 20 Cal.4th 701, 750; People v. Watson (1956) 46 Cal.2d 818, 836.) Here, undereither standard ofreview,the error cannot be regarded as harmless since it went to the central issue in the case —— appellant’s intent. Thetrial court’s ruling and instructions permitted the jurors to resolve one of the key issues in the case — whether appellant intended to sexually assault Ms. Eddings when he entered her residence — based upon prior unrelated misconduct involving Toni Pina, Barbara Cady and Norma Knight. Although evidence regarding the Cady and Knightincidents was not admitted for this purpose, the jury instructions did not so inform the jurors and,in fact, permitted this misuse of the evidence. The evidence had no tendency in reason to establish appellant’s intent — particularly the evidencerelating to the assault on Norma Knight which had no sexual component. Consequently, the danger that the jurors found appellant guilty because they concluded he was a “bad man” wasgreat. In the absence ofthe errorsit is probable the jurors would not have found, beyond a reasonable doubt, that appellant harbored the requisite intent. The prosecutor exploited the error and relied heavily uponall of this evidence in urging the jurors to find criminal intent at the time of entry, a 77 necessary elementoffirst degree murder under a felony-murder theory and the special circumstances allegations. The error impacted not only the felony- murder theory involving burglary but also the prosecution’s other felony- murder theories based upon rape and sodomy or attempts to commit these crimes. IfMs. Eddings had not been sexually assaulted until after she had died, appellant would not have been guilty of rape or sodomysince both ofthese offenses require a live victim. (People v. Kelly (1992) 1 Cal.4th 495, 524; People v. Ramirez (1990) 50 Cal.3d 1158, 1176 .) This court has determined that a person whoattempts to rape a live victim,kills the victim in the attempt, then has intercourse with the body, has committed only attempted rape, not actual rape, but is guilty of felony-murder and is subject to the rape special circumstance. (People v. Kelly, supra, 1 Cal4th at p. 526; People v. Goodridge (1969) 70 Cal.2d 824, 838; People v. Quicke (1964) 61 Cal.2d 155, 158.) However, for the felony-murder rule and the special circumstance to apply, the defendant must have been attempting to rape the victim at the time of the killing; it would not suffice if, after the killing, defendant acquired the intent to have intercourse with the dead body. (People v. Kelly, supra, 1 Cal.4th at p. 526.) Thus, if appellant had not formedthe intent to sexually assault the victim until after she was dead, he would not have been guilty of attempted rape or attempted sodomy, or of rape or sodomy. Absenta finding that appellant entered Ms. Eddings’ residence with the intent to sexually assault her, the jury could not have convicted appellant of first degree murder under a felony-murdertheory and could not have foundthe special circumstances allegations true. Under these circumstances appellant intent was critical to the jury’s resolution of the case. In light of all the circumstancesit is likely the jury determined appellant’s intent, and thus his 78 guilt, based upon evidence ofpropensity or probability ofguilt. Consequently, the error wasprejudicial and the judgmentofthe trial court must be reversed. 79 Il. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THEAUTOPSY SURGEONTORENDERHISPERSONALOPINION, BASED NoT UPON ANATOMIC FINDINGS BUT RATHER UPON EXTRINSICFACTORS SUCHASAPPELLANT’S STATEMENTSTO POLICE, THAT THE VICTIM HAD BEEN RAPED AND MURDERED, AND THAT SHE HAD BEEN RAPED AND SODOMIZED PRIOR TO DEATH. A. INTRODUCTION Dr. Robert DiTraglia performed the autopsyin this case and wascalled as a prosecution witness. In addition to testifying about his findings and observations during the autopsy, Dr. DiTraglia was permitted to testify over defense objection that in his opinion Ms. Eddings had been raped and murdered and that she had been raped and sodomized before her death. (18 RT 1957-1958.) These conclusions were not based upon any anatomic observations during the autopsy since, although both the vaginal andrectal canals were removed from the body and visually inspected in an effort to detect evidence of sexual assault, there were no signs of injury or trauma to either, and no signs of external injury, other than thermalinjury, to the genital area. (19 RT 2009, 2011.) Whenthe prosecution first asked Dr. DiTraglia for his opinion on the greater issue ofwhether Ms. Eddings was sexually assaultedprior to death, the following exchange took place: Q. Were you able to form an opinion as to whether or not Ruth Eddings wasalive at the time she was raped and sodomized? Mr. CABRERA: Your Honor,again, based on the status of the evidence as we haveit in the record, there’s insufficient data for this expert to render an opinion. 80 THE COuRT: I think the appropriate objection, sir, is that in the form of the question it assumesfacts not in evidenceat this point in time. MR. CABRERA: I'll accept that correction and thank you. THE COURT: Rephrase the question, Miss Erickson. Q. (By Ms. Erickson) What basis do you have for forming an opinion as to whether or not Ruth Eddings was raped or sodomized? A. Everything that ] know aboutthis case, some of it we’ve talked about today, some of it we haven’t talked about directly — for example, DNA evidence and sexual assault evidence — my training and experience in cases of rape-murder, the sorts of things that happen when people are raped and murdered, the cause of death, the circumstances of death, my experience in rape-murder versus — if I understand your question correctly, you're asking me to evaluate necrophilia, which would be sex with a dead person, which is exceedingly uncommon. SoI would say my training and experience, textbooksandliterature, all of the evidence that I know about what happened in this particular case is what I would use to formulate an answerto your question. (18 RT 1938-1939.) Dr. DiTraglia’s response makesclearthat his opinion in this area was based uponextrinsic factors rather than upon anatomic findings during the autopsy. The court then read CALJIC No. 2.80 regarding expert testimonyto the jurors, and asked the witness additional questions relating to his general qualifications as a forensic pathologist: THE Court: .... Dr. DiTraglia, you testified earlier that it is not uncommon for you to be asked to express an opinion on the cause of death. Is that correct? THE WITNESS: Yes. THE COURT: That’s what you normally do as a forensic pathologist? 81 THE WITNESS: That’s one of the things that I normally do. THECOURT: Okay. You indicatedthat youtestified 150 timesin court. THE WITNESS: Approximately. THE COURT: Have you ever been askedto testify and express an opinion as to whetheror not the individual upon whom you performed an autopsy had been the victim of some kind of sexual assault? THE WITNESS: Yes. THE COURT: Approximately how many occasions? THE WITNESS: It’s a hard thing to recall. I mean, I would say — certainly more than five times and maybeless than 25 times. That’s not somethingthat I keep track of. (18 RT 1940.) Following this exchange the court permitted the prosecutor to resume questioning, and she again asked Dr. DiTraglia: “Do you have an opinion as to whether Ruth Eddings was rapedin this case?” Defense counsel objected on the groundsthat the question called for an opinion which wasoutside the scope of the witness’s expertise. (18 RT 1940-1941.). The trial court then permitted defense counsel to voir dire Dr. DiTraglia on his qualifications in this specific area. (18 RT 1942-1957.) When questioned, Dr. DiTraglia could not point to anything in his experience or training which would qualify him as an expert in determining whethera sexual assault took place prior to, as opposed to immediately after, death. Although Dr. DiTraglia felt that he had extensive experience with cases of sexual assault leading to murder, he had no experience or training with regard to cases involving sexual assault after death. Dr. DiTraglia also had no formaltraining or experience in the area of crime scene reconstruction. In the absence of any relevanttraining or experience, Dr. DiTraglia clearly was not 82 an expert in distinguishing, based uponthe factors considered, between cases involving sexual assault prior to death and those involving sexual assault immediately after death. Despite this inadequate foundation, the trial court permitted the prosecution to ask the following questions: Q. A. Q. * KOK OK .... You have an opinion whether Ruth Eddings was raped? I do. Your opinionis, sir? THE WITNESS: Myopinion 1s that she was raped and this 1s a rape- murder. Q. (By Ms. Erickson) You have an opinion regarding if Ruth Eddings was sodomized? A. I do. Q. And whatis that opinion, sir? A. Andjust because sodomy, I believe, is a legal term, I want to make sure that we’re using it accurately. My understanding is — why don’t you define sodomy. THE COURT: She can’t do that. I only define those things. THE WITNESS: Okay. THE COURT: Do you have an opinion, Doctor? Do you have an opinion? THE WITNESS: I do. THE COURT: Whatis that opinion? THE WITNESS: Myopinionis that she was sodomized. Q. A. > Q. A. QD PF Q - (By Ms. Erickson) What is your understanding of sodomy? I think that the — the definition is more broadthanjust anal sex. It’s some more broad definition like sex that’s not vaginal intercourse, but I know that anal sex is included in sodomy. At least that’s my understanding. Is your opinion, in fact, Ruth Eddings was subjected to anal intercourse? Yes, that’s my opinion. Do you have an opinion regarding whether this sodomy took place before or after death? I do. Whatis your opinion? Myopinionis that it occurred before death. You have an opinion regarding whether she wasraped before or after death? I do. And your opinion? Myopinion is that she was raped before death. (18 RT 1957-1958.) Dr. DiTraglia wasallowedto offer his opinion on these matters despite the fact that it was based not upon anatomic findings, but rather upon extrinsic factors — or, as he putit, on everything he knew about the case — and despite the fact that Dr. DiTraglia had no particulartraining or experience in determining whether a sexual assault had been committed prior to or immediately after death in the absence of anatomic evidence. 84 As discussed more fully below, Dr. DiTraglia’s testimony on these matters was improperly admitted and should have been excluded on three grounds:(1) Dr. DiTraglia did not haveanyspecialized education,training and experience qualifying him as an expert in this particular area; (2) the opinion rendered wasnota propersubject ofexpert testimonysince Dr. DiTraglia was no more qualified than the jurors to examine the evidence he considered and reach a conclusion on the greater issues addressed; and (3) under Evidence Code section 352 the evidence was more prejudicial than probative because it enabled the prosecution to presentits version of the facts to the jury in the form of expert testimony and encouraged the jury to shift responsibility for evaluating the evidence to the prosecution’s expert. B. Dr. DITRAGLIA’S TRAINING AND EXPERIENCE Dr. DiTraglia’s testified as a forensic pathologist which he defined as follows: A forensic pathologist is obviously a medical doctor who first specializes in laboratory medicine, the diagnosis of death and disease through thingslike autopsies andlab tests and tissue biopsies, and then further subspecializes in the area of forensic pathology, which simply meansthat you relate the two fields of pathology and law. Typically, you perform autopsies on certain kinds of cases, determine the cause of death, sometimes the mannerofdeath, and relate those findingsin legal settings like this one. (18 RT 1904.) He described his educational background and experience during the following exchange: Q. Can you describe for us, please, your educational background. A. I earned an undergraduate degree in chemistry. I attended a medical school for four years at St. Louis University. I did a four-year residency in anatomic and clinical pathology at the University of California, Irvine. 85 Q. A. I did two fellowships, one in surgical pathology for a year and one in forensic pathology. I then workedonthe staff at the Los Angeles County coroner’s office for approximately one year, and then worked at the Riverside County coroner’s office for approximately seven years. I’ve forgotten if you want me to talk about training and experience or just training. Proceed with your experience. Myexperience,I’ve personally performed somethinglike 3,000 to 3,500 forensic autopsies. I am certified by the American Board of Pathology in both anatomic and forensic pathology. I have — I’ve been calledto testify on a number of occasions in superior courts and municipal courts in California, something like 150 times approximately. That’s aboutit. The testimony that you’ve givenin courts in the past, the 100 or 150 times, is that in the area of cause of death? Yes, vast majority of times. (18 RT 1904-1905.) After appellant objected to Dr. DiTraglia offering his opinion on the ultimate issues of murder, rape and sodomy,the trial court permitted defense counsel to question him on voir dire regarding his qualifications to express an opinion that Ms. Eddings was raped and murdered andthat she was raped and sodomized before death. His testimony established that he had no specific training in psychology or psychiatry, that he knew little or nothing about necrophilia, and that he had never performed an autopsy on a bodythat had been sexually violated after death. (18 RT 1942-1945.) Further, Dr. DiTraglia 86 had no training in criminology and wasnot qualified as a criminalist. Nor had he ever received any training in crime scene reconstruction. (19 RT 2039.) Overall, Dr. DiTraglia’s testimony established that he was a forensic pathologist — a medical doctor who specializes in the diagnosis of death and disease. through laboratory medicine, and further specializes in the area of forensic pathology or relating the fields of pathology and law. He was qualified to performs autopsies, determinethe cause of death and perhaps the mannerof death, and to relate those findings in a legal setting. Dr. DiTraglia had no specialized training or experience qualifying him as an expert in determining whether a sexual assault on a deceased victim was committed prior to or after death. Cc. THE BASIS FOR DR. DITRAGLIA’S OPINION When questioned on voir dire generally regarding how he would determine whethera rape had occurredin a given case, Dr. DiTragliatestified as follows: Q. Then let’s go back, then, just to rape and murder. In that situation, what else would you look at to formulate an opinion that an individual had been raped? A. The scene. There are times when I go to the scene personally. There are numeroussituations where | look at photographs of the scene. There’s a lot ofinformation from scene investigation that bears on that question. The autopsyitself, the presence or absence of trauma, foreign bodies in body cavities, sexual assault evidence like sperm, proteins, DNA. An understanding of the connection between rape and murder, and what I mean by that is there is a usual or more common scenario. For example, the most common cause of death in rape-murder is strangulation, and strangulation is coupled 87 sometimes — or many times with beating — blunt force trauma like this case or stab wounds, andso that’s another example of information that can be utilized to formulate an opinion as to whetheror not rape has occurred. (18 RT 1947.) Whenaskedspecifically about the basis for his conclusionthat the cloth found in the vaginal canal was inserted prior to Ms. Eddings’ death, the following exchange took place between Dr. DiTraglia and the court: THE COURT: Whatfacts beyond the presence of the foreign object in the vagina or the vaginal canal that you observed or are aware of in association with this case might lead you to the conclusion that the central penetration was antemortem, before death, as opposed to postmortem? THE WITNESS: That’s the question I was attempting to answer,andI started with the presence of the foreign object in the vagina. I included the presence of sperm in the rectum. I was aboutto discuss the cause of death itself, strangulation and blunt force trauma, very commonin cases of rape because rape is a very intimate event, and the cause of death typically goes along with that. It’s a very intimate thing. It’s not a gunshot wound. It is strangulation and blunt force trauma. In addition, the trauma, whenit is present, is often severe and brutal, like it is in this case. The circumstancesat the scene, the presenting position that the body was foundin is a fact that bears upon this. The statements made by the defendant are facts that bear upon this question. The evidence, in my mind, consists of many different facts, some of which I’ve delineated to you. (18 RT 1952-1953.) When defense counsel attempted to ask additional questionsin this area, the court cut him off stating: “Counsel, right now we’re on voir dire. Ifyou wantto take this up on cross-examination andaskit again, I suppose you can.” (18 RT 1953-1954.) 88 During cross-examination, Dr. DiTraglia provided additional details concerningthe basis for his opinion: Q. Doctor, in continuation of our interaction last week, let me go back a bit and ask you about the blind pouch that was found in the vaginal cavity. Can youtell me what physical findings you madeat the autopsy to determine that that was inserted antemortem? I don’t believe that there are purely anatomic findings that can answerthat question. All right. Let me ask you aboutthe fluids that were taken from the rectal cavity. What physical evidence did you find at the autopsy to determine that they were inserted antemortem? The answerto that question as phrased, physical evidence,is the same lengthy list of things that I delineated last week, the circumstances of the case, the nature of the evidence, what I know about rape-murder, et cetera, et cetera. ] think you may not have intended to word the question that way. What we’re lookingat is, do you consider what you know about rape-murderto be a physical finding? Physical evidence — my understanding of the term physical evidenceis not the same thing as an anatomic finding. In other words, I don’t use the word “physical evidence” to mean simply a physique or a body. I think the term is a lot more broad than that. Thank you for the education. What anatomical finding did you make at the time of the autopsy to base your opinion that the rectal fluid or whatever was extracted from the rectal cavity was placed there antemortem? 89 A. There’s no way to answerthat question simply from looking at anatomic findings alone. So by limiting the question, the answeris I cannottell you. (19 RT 1994-1996.) From Dr. DiTraglia’s testimonyit is apparent that the conclusions he drew and the opinions he offered were based not upon findings of injury during the autopsy but upon extrinsic factors including the presence of a foreign object in the vagina, the presence of sperm in the rectum,the cause of death being blunt force traumaand strangulation, the circumstances of the scene including the position of the victim’s body, and appellant’s statements to police. D. THERE WAS INSUFFICIENT FOUNDATION FOR DR. DETRAGLIA’S “EXPERT” OPINION ON THESE MATTERS. Despite the fact that Dr. DiTraglia did not have any specialized training or experience qualifying him as an expert in determining whether a sexual assault had occurred prior to rather than immediately after death, he was permitted to offer his “expert” opinion on the subject. Under Evidence Code section 720, subdivision (a): “A personis qualified to testify as an expert ifhe has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimonyrelates. Against the objection of a party, such special knowledge,skill, experience, training, or education must be shown before the witness maytestify as an expert.” “While atrial court’s decisionas to the qualification ofa witnesswill be upheld absent an abuse of discretion [citation], error must be found if ‘the evidence shows that a witness clearly lacks qualification as an expert and the judge has held the witness to be qualified as an expert witness.”” (People v. Hogan (1982) 31 Cal.3d 815, 852 [emphasis omitted].) 90 “ 66 children; and this portion of these victims’ “testimony was insignificant in light ofextensive properly admitted evidence concerning the despicable nature of both the prior and current crimes.” Neither of these cases directly addressed the propriety of victim impact evidence under subdivision (b) of section 190.3, and consequently neither supports the trial court’s ruling since ““an opinion is not authority for a proposition not therein considered.” (People v. Donaldson (1995) 36 Cal.App.4th 532, 528, quoting from Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.) Other state courts have excluded such evidence as irrelevant and inappropriate. In People v. Hope (Ill. 1998) 702 N.E.2d 1282, the Illinois Supreme Court concluded Payne “clearly contemplates that victim impact evidence will come only from a survivor of the murder for which the defendantis presently ontrial, not from survivors of offenses collateral to the crime for which defendantis being tried.” The court expressly agreed with the defendant’s argumentthat “[t]he jury’s highly subjective decision whetherto umpose death should be unfettered by emotionally-charged victim impact evidence that concerns somethingascollateral as a prior offense for which the defendant is not being sentenced.” 264 The Nevada Supreme Court reached the same conclusion in Sherman v. State (Nev. 1998) 965 P.2d 903, 914, holding “that the impact of a prior murder is not relevant . . . and is therefore inadmissible during the penalty phase.” The Court explained that “evidence of the impact which a previous murder had uponthe previousvictim is not relevant to show” the damage done by the current capital offense. (/bid.) Similarly, in State v. Nesbit (Tenn. 1998) 978 S.W.2d 872, the Tennessee Supreme Court “reiterate[d] that victim impact evidence ofanother homicide, even one committed by the defendantontrial, is not admissible.” (Id. at p. 889, fn. 11, citing State v. Bigbee (Tenn. 1994) 885 S.W.2d 797, 813.) Likewise, in State v. White (Ohio 1999) 709 N.E.2d 140, 154, the Ohio Supreme Court held that evidence of the impact of a non-capital murder(i.e., second degree murderas a lesser offense of capital murder) and attempted ageravated murder were not admissible at the penalty phase of defendant’s trial because the judge, not the jury, is responsible for determining the appropriate sentence for those convictions, although defendant was convicted ofthose crimesin the sametrial which resulted in his conviction on the capital murder. In addition, in People v. Dunlap (Colo. 1999) 975 P.2d 723, 744-745, the Colorado Supreme Court relied on the decision of the Illinois Supreme Court in People v. Hope, supra, 702 N.E.2d 1282, 1289, in holding that evidence of “the perceptions of the victims” of defendant’s prior crimes was not admissible at the penalty phase, and requiring the exclusion of evidence describing the previousvictims’ fear and nervousness during those crimes, and a victim’s emotional state following a previous aggravated robbery. 265 The Texas Court of Criminal Appeals reached a similar conclusion in Cantu v. State (Tex. Cr. App. 1997) 939 S.W.2d 627, 637, holding that it was error to present victim impact evidence concerning the non-capital murder, sexual assault and robbery of a teenage girl in the same incidentas the capital murderofanothergirl, because the formergirl was “not the ‘victim’ for whose death [defendant] has been indicted andtried, and Payne does not contemplate admission of such evidence as permissible under the Eighth Amendment.” AsnotedbytheIllinois Supreme Court: “[t]he jury’s highly subjective decision whetherto impose death should be unfettered by emotionally-charged victim impact evidence that concerns somethingascollateral as a prior offense for which the defendantis not being sentenced.” Consequently, such evidence should not be permitted under subdivision (b) of section 190.3 andthetrial court erred in admitting it here. F, THE VICTIM IMPACT EVIDENCE SHOULD HAVE BEEN EXCLUDED UNDEREVIDENCE CODE SECTION 352 AS MORE PREJUDICIAL THAN PROBATIVE. Emotional victim impact evidence whichis likely to provoke arbitrary or capriciousaction violates the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I, sections 7, 15, 17, and 24 of the California Constitution. (See, Gregg v. Georgia, supra, 428 U.S.at p. 189 (“where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action”]; Gardnerv. Florida, supra, 430 U.S. at p. 358 [“It is ofvital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion”]; see, also, Godfrey v. Georgia, supra, 446 US. at p. 428). Such evidence must also be excluded under Evidence 266 Codesection 352”because its probative value is substantially outweighed by the danger of undueprejudice. In People v. Edwards, this Court emphasized the unacceptablerisk of prejudice resulting from excessively emotional victim impact evidence: Our holding does not mean that there are no limits on emotional evidence and argument. In People v. Haskett, supra, 30 Cal.3d at page 864, we cautioned, “Nevertheless, the jury mustface its obligation soberly and rationally, and should not be given the impression that emotion may reign over reason. [Citation.] In each case, therefore, the trial court muststrike a careful balance between the probative and the prejudicial. [Citations.] On the one hand,it should allow evidence and argument on emotional though relevant subjects that could provide legitimate reasonsto sway the jury to show mercyorto imposethe ultimate sanction. On the other hand, irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its properrole or invites an irrational, purely subjective response should be curtailed. (id. at p. 836.) This passage appears to urge trial courts to carefully weigh evidence ofvictim impact under Evidence Code section 352 before admitting it. Opinionsofother state courts have imposedlimitations on the scope of victim impact evidence in order to minimize the potential for prejudice inherent in such evidence. Some have suggested limitations on the numberof witnesses paraded before the jurors. As observed by the New Jersey Supreme Court: 3 As discussed elsewherein this brief, this section providesas follows: “The court in its discretion may exclude evidenceif 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 undueprejudice, of confusing the issues, or of misleading the jury.” 267 The greater the number of survivors who are permitted to present victim impact evidence, the greater the potential for the victim impact evidence to unduly prejudice the jury against the defendant. Thus, absent special circumstances, we expect that the victim impact testimony of one survivor will be adequate to provide the jury with a glimpse of each victim’s uniqueness as a human being and to help the jurors make an informed assessment of the defendant’s moral culpability and blameworthiness. (New Jersey v. Muhammad(N.J. 1996) 678 A.2d 164, 180.) Similar rules have been pronouncedbythe highest courts of other states. In People v. Hope, supra, 702 N.E.2d 1282, the Illinois Supreme Court interpreted the provisions of that state’s law to limit victim impact testimony to “a single representative who maybe the spouse, parent, child or sibling of a person killed as a result of a violent crime.” Courts have also addressed the content ofvictim impact testimony. The New Jersey Supreme Court has described the type ofvictim impact evidence whichis properly admissible as follows: A general factual profile of the victim, including information aboutthe victim’s family, employment, education,andinterests. The testimony can describe generally the impactofthe victim’s death on his or her family. The testimony should be factual, not emotional, and should be free of inflammatory comments or references. (New Jersey v. Muhammad, supra, 678 A.2d at p. 180.) In State v. Nesbit, supra, 978 S.W.2d 872, the Tennessee Supreme Court held: Generally, victim impact evidence should be limited to information designedto show those unique characteristics which provide a brief glimpseinto the life of the individual who has been killed, the contemporaneousand prospective circumstances surrounding the individual’s death, andhowthose circumstances financially, emotionally, psychologically or physically impacted upon membersofthe victim’s immediate family. Ofthese types ofproof, evidence regarding the emotional impact ofthe murder 268 on the victim’s family should be most closely scrutinized because it poses the greatest threat to due process andrisk of undue prejudice, particularly if no proofis offered on the other types of victim impact. [Citations and footnote omitted.] The court in United States v. Glover (D. Kan. 1999) 43 F.Supp.2d 1217, 1235- 1236, reached a similar conclusion, holding that victim impact witnesses should be limited to presenting “‘a quick glimpseofthe [victim’s] life... ,”” including “a general factual profile of the victim, [and] information about the victim’s family, employment, education andinterests... ;” it must “be factual, not emotional, and free of inflammatory comments or references.” Oklahoma, which permits victim impact evidence “as long asit is ‘restricted to the “financial, emotional, psychological, and physical effects,” or impact, of the crime itself on the victim’s survivors[,] as well as some personal characteristics of the victim’” (Short v. State (Ok.Crim.App. 1999) 980 P.2d 1081, 1100), does not permit penalty phase evidence ofpre-mortem photographsofthe victim or other photographs ofthe decedent while he or she wasalive (id., at pp. 1101-1102; Cargle v. State (Ok.Cr.App. 1995) 909 P.2d 806, 830). This Court has found it proper to allow a penalty phase jury to view photographsofthe victim while the victim wasalive in orderto illustrate how the victim appeared to defendantat the time ofthe murder (People v. Cox (1991) 53 Cal.3d 618, 688), and other courts have determinedit is improper to admit pre-mortem photographsofthe victim which do not depict the victim as he or she appearedat the time ofthe murder, for example, as a child, during another era in the victim’s life, or dressed in particular uniforms or other special attire that were not related to the circumstances of the murder (see Salazarv. State (Tex. Ct. Crim. App. 2002) 90 S.W.3d 330, 337 [holding that it was improper to exhibit childhood photographs of the victim since the defendant killed the victim when he was an adult, not a child, and the 269 childhood photographs were extremely prejudicial, presenting a strong “danger of unconsciously misleading the jury ... .”]). Several other specific examples ofinadmissible victim impact evidence have been recognized by many courts. For example it has been held that a victim impactwitness is not permitted to testify about the impact ofthe trial becauseit is not arelevant consideration. (See, e.g., Gattis v. State (Del. Supr. Ct. 1994) 637 A.2d 808, 820.) Itis also improper for a witnessto testify “as to the impact on another person through the use of hearsay statements.” (Ledbetter v. State (Okl.Cr. 1997) 933 P.2d 880, 896.) While the prosecution may be permitted to introduce victim impact testimony in the form of general statements describing the victim’s qualities, “detailed descriptions” and “specific examples” should not be presented. (See, State v. Taylor (La. 1996) 669 So.2d 364, 372.) Likewise, with regard to evidence concerning the impact ofthe victim’s death on the victim’s family, family members should be limited to general statements describing the impactofthe victim’s death on their lives, and are not permitted to provide “detailed responses”ortestify to “particular aspects of their grief... .” (/bid.) Mostof the limitations described above were violated by the victim impact evidence permitted in this case. First, the testimony wasnotlimited to a single witness. Rather the prosecution was permitted to call four of Ms. Eddings’ relatives, and these four witness were permitted, in turn, to describe the impact ofthe incident on numerousother family members spanning three generations. The quantity of victim impact testimonyin this case, thus, far surpassed what court’s have found to be within acceptable limits and reached prejudicial proportion. The substance of the testimony wasalso particularly prejudicial given that the evidence was not limited to a “brief factual profile of the victim.” 270 Rather, the various witnesses were permitted to relate emotional details and specific instances concerning Ms. Eddings’ life. Additionally, numerous photographs of Ms. Eddings at holiday celebrations and family gatherings were introduced. These photographs did not simply provide the jury with an image of the victim at the time of her death, but rather spanned a number of years from 1939. Through them, andthe testimonyofher relatives, the jurors were madeprivy to celebrations, special occasions, and warm moments with Ms.Eddings’ family, including her deceased husband, over the course ofmany years. Additional prejudice ensued whenthe evidencerelating to the impact of Ms. Eddings’ death wasnotlimited to a brief factual accountofthe effect of the crime on family members. Instead the witnesses were permitted to provide detailed responses to emotionally charged questions, and to provide specifics regarding particular aspects of their grief. They each described emotional reactions to the news of Ms. Eddings death, and related their subsequent feelings of depression, sadness, and emptiness. The witnesses’ testimony was punctuated with descriptions of nightmares, and grief stricken behavior — such as Ms. Harrington’s habit of dialing her mother’s phone number after it had been disconnected and engaging in imaginary conversations with her, and Ms. Grimmett’s daughter’s inability to maintain a sexual relationship with her husband for thinking of the way Ms. Eddings died. In addition to the prejudicial victim impact evidence relating to Ms. Eddings, the prosecution was permitted to introduce evidenceofthe profound and long lasting impact appellant’s 1972 assault had on Norma Knight. As discussed morefully above, most courts addressing the matter have determined 271 that such evidenceis irrelevant to the sentencing decision before the jury. Yet the prejudicial nature of the evidence wasintense. Overall while having little bearing on appellant’s “moral culpability and blameworthiness,” andless still to do with the “circumstancesofthe offense,” the “victim impact” evidence permitted here was boundto intensify natural feelings of sympathy for the victim and her family and may have encouraged a desire for retribution against appellant inviting an emotional and purely subjective response. The evidence wasfar more prejudicial than probative and should have been excluded for this reason. G. THE ERROR WAS PREJUDICAL AND REQUIRES REVERSAL OF APPELLANT’S DEATH SENTENCE. Overall, the excessive quantity and highly emotional content of the victim impact evidence erroneously admitted in the penalty retrialtrial created an atmosphereofprejudice in which emotion prevailed over reason. (Gardner v. Florida, supra, 430 U.S. 349, 358; Gregg v. Georgia, supra, 428 U.S. 153, 189.) Appellant was deprived of his rights under the federal constitution, as well as rights guaranteed to him under California law. Accordingly, the error must be reviewed under the standard set forth in Chapman v. California, supra, 381 U.S. at pp. 24), holding that reversal is mandated unlessthe state can showthat the error was harmless beyond a reasonable doubt. When a violation of the constitution occurs in the penalty phase of a capital case, a reviewing court must proceed with special care. (Satterwhite v. Texas (1988) 486 U.S. 249, 258 [“[T]he evaluation of the consequencesofan error in the sentencing phase of a capital case may be more difficult because of the discretion that is given to the sentencer.”].) In evaluating the effects of the error, the reviewing court does not consider whether a death sentence would or could have been reached in a hypothetical case where the error did not occur. Rather, the court must find that, in that particular case, the death 272 sentence was “surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. 275, 279.) The State cannot satisfy this standard here. That the improperly admitted evidence was of a highly prejudicial nature was recognizedbythetrial court in the following observation: “Thisis evidence which hasthe potential of being extraordinarily powerful. No one whohassat through any portion of the victim impact evidence can deny that it has an effect on everyone in the courtroom.” (28 RT 2974.) The victim impact evidence permitted in this case could not have failed to impress the jurors. It is also of consequence that the evidence was stressed by the prosecution during closing argument. Generally, the significance the prosecutorassigns to erroneously admitted evidence is consideredin assessing the evidence’s prejudicial impact. (See, e.g., People v. Minifie (1996) 13 Cal.4th 1055, 1071-1072; People v. Patino (1984) 160 Cal.App.3d 986, 994 [no prejudice where prosecutor does not dwell upon the evidence improperly admitted].) Here the prosecutor emphasized the evidence, expanded upon it by includingall the victims ofprior conduct, and encouragedthejurors to vote for the death penalty because ofit: The ten womenthat he has assaulted and raped and abused have been changed forever because ofthe defendant. You can considertheeffects on the lives of these women who have survived Billy Jones and the effects on the family members of Ruth Eddings whohaveto live with what he did to Ruth Eddings. Rememberthe testimony of the family members, the daughter Helen Harrington whohadto go outin thefire and sift around to try to salvage what wasleft ofher mother. [Defense objection interposed and overrruled] Helen Harrington and hersister were left with the duty oftrying to save anything that survived that fire. And Helen said she found a plate that reminded — there was a plate her motherate off, a shoe her mother once wore. 273 Rememberthe testimony of Donna Velasquez, a niece whosaid, yes, they gave me some items from the fire, some photographsI have in a collage hanging up in my house with the burned edges of those pictures. They remind her forever ofhow Ruth Eddings died. Thatis whatis left of Ruth Eddings. You heard the testimony of Shirley Grimmett whotalked about how it affects herstill today, a television show, a newsreport about a woman who is raped or abused, and what goes through her mindis the last minutes of Ruth Eddings’ life, the horrible, horrible thing. You can’t imagine it. You’resitting here very safe and sound in a courtroom two years later. You can’t imaginethe horror that went through 81-year-old Ruth Eddings’ mind,the last minutes of her life. You can’t. Thereis no way any of us can, and who among us would wantto, even if we could? Who here can appreciate what Ruth’s family hasto live with for the rest of their lives? Who among ushere can appreciate what Angela Coleman hasto live with the rest of her life, the effects he has had on the womenhe has touched? He has changed them forever. (34 RT 3881-3882.) The erroneously admitted victim impact testimony in this trial was emotionally powerful and excessive and was usedeffectively by the prosecutor, in closing argument. The trial court’s error in admitting the evidence cannot be regarded as harmless and, consequently, appellant’s death sentence must be reversed. 274 Instructional Errors IV. THE TRIAL COURT ERRED IN FAILING TO GIVE PENALTY PHASE INSTRUCTIONS REQUESTED BY THE DEFENSE WHICH WERENEITHERCUMULATIVENORARGUMENTATIVE,WHICH CONTAINEDCORRECT STATEMENTSOFTHELAW,ANDWERE NECESSARY FOR THE JURY TO PROPERLY PERFORM ITS FUNCTION AT THE PENALTY PHASE. A. INTRODUCTION The trial court refused a number of specially tailored instructions requested by appellant which would have addressed various aspects of the penalty determination. However, because a criminal defendant is entitled upon requestto instructionsthat either relate the particular facts of his case to any legal issue or that pinpoint the crux ofhis defense (People v. Saille, supra, 54 Cal.3d at p. 1119; People v. Hall (1980) 28 Cal.3d 143, 158-59; People v. Sears (1970) 2 Cal.3d 180, 190; see also Penry v. Lynaugh, supra, 492 U.S. 302; Penry v. Johnson (2001) 532 U.S. 782, 797), the trial court erred in denying the request. The defense instructions were neither cumulative nor argumentative, and all contained correct statements of law. (See People v. Mickey, supra, 54 Cal.3d at p. 697.) They were offered to address particular aspects of appellant’s theory of the case, and were thus appropriate. (See People v. Kraft (2000) 23 Cal.4th 978, 1068; People v. Andrian (1982) 135 Cal.App.3d 335, 338.) Moreover, the requested instructions were required in order for the jury to adequately consider appellant’s case in mitigation. “Every man accused of crimeis entitled to have his defenses properly presented in an understandable manner.” (People v. Monteverde (1965) 236 Cal.App.2d 630, 642.) “A jury is entitled to instructions pertaining to the 275 particular facts ofthe case being tried. [Citation.] Defendant’s fate, therefore, should not rest on abstract generalizations.” (People v. Pena (1984) 151 Cal.App.3d 462, 474-475.) Here while the instructions given to the jury presented the law in a general way, the instructions requested by appellant addressedissuescentralto the case andrelated the law, in an understandable manner, to the circumstances presented by the evidence. The trial court’s failure to instruct the jury as requested wasin violation ofits affirmative duty to provide instructions on a defendant’s theory of defense whereit is obvious the defendantis relying upon such a defenseor if there is substantial evidence to support it. (See People v. Stewart (1976) 16 Cal.3d 133, 140; People v. Bottger (1983) 142 Cal.App.3d 974, 979.) The errors violated appellant’s right to present a defense (U.S. Const. amends. VI & XIV; Cal. Const. art. 1, §§ 7 & 15; Chambers v. Mississippi, supra, 410 U.S. 284), his right to a fair and reliable capital trial (U.S. Const. amends. VIII & XIV; Cal. Const. art. 1, § 17; Beck v. Alabama, supra, 447 U.S. 625, 638), and his right to trial by a properly instructedjury. (U.S. Const. amends. VI & XIV; Cal. Const. art. 1, § 16; Carter v. Kentucky (1981) 450 U.S. 288, 302; Duncan v. Louisiana (1968) 391 U.S. 145.) Further, by arbitrarily depriving appellant of his state right to the delivery of requested pinpointinstructions supported by the evidence,the errors violated appellant’s right to due process. (U.S. Const. amend. XIV; Hicks v. Oklahoma, supra, 447 U.S.at p. 346; Fetterly v. Paskett (9th Cir. 1991) 997 F.2d 1295, 1300.) B. GENERAL PRINCIPLES Asrecognized by the United States Supreme Court, jurors “are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law.” (Carter v. Kentucky, supra, 450 U.S.at p. 302.) “Itis quite simply a hallmark of our legal system thatjuries be carefully 276 and adequately guided in their deliberations.” (Gregg v. Georgia, supra, 428 U.S. at p. 193 [opn. of Stewart, Powell and Stephens, JJ.].) In a criminalcase, even in the absence of a request, a trial court is required to instruct on the general principles of law relevant to issues raised by the evidence. (People v. St. Martin (1970) 1 Cal.3d 524, 531.) | “As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (1988) 485 US. 58, 63.) In Bradley v. Duncan (9* Cir. 2002) 315 F.3d 1091, 1099, the Ninth Circuit found that under clearly established Supreme Court precedent, “the state’s failure to correctly instruct the jury on the defense may deprive the defendantofhis due processright to present a defense. This is so because the right to present a defense would be empty if it did not entail the furtherright to an instruction that allowedthe jury to consider the defense.” Several federal constitutional doctrines affirm a capital defendant’s right to present evidence and argument, and to have the jury properly instructed on the defense case in mitigation of the death penalty. Underthe Eighth Amendment, the jury in the sentencing phase of a capital case may not be precluded from considering “as a mitigating factor, any aspect of a defendant’s character or record or any ofthe circumstancesofthe offense that the defendant proffers as a basis for a sentence less than death.” (Lockett v. Ohio, supra, 438 U.S. 586, 604; see also Hitchcock v. Dugger (1987) 481 U.S. 393, 394; Eddings v. Oklahoma (1982) 455 U.S. 104.) Fundamental due process, and the heightened due process applicable to capital cases, similarly require that the defendant be allowed to offer any mitigating evidence or testimony that might justify a sentence less than death. (Skipper v. South 277 Carolina (1986) 476 U.S. 1, 4-5,citing Lankford v. Idaho (1991) 500 U.S.110, 126, fn. 22; In re Oliver (1948) 333 U.S. at 257, 273.) This Court has recognized that “[w]hen any barrier, whetherstatutory, instructional, evidentiary, or otherwise [citation], precludes a jury from considering relevant mitigating evidence, there occurs federal constitutional 299 error, which is commonly referred to as “Skipper error.’” (People v. Mickey, supra, 54 Cal.3d at p. 693; see Skipper v. South Carolina, supra, 476 U.S. 1.) Furthermore, the United States Supreme Court has ruled that a criminal defendant in a capital case has an Eighth Amendmentright to an instruction directing the jury to considera particular mitigating factor. (Penry v. Lynaugh, supra, 492 US. at p. 328.) Understate law, Penal Code section 1093, subdivision (f), requirestrial courts to instruct the jury on any points of law pertinent to specific issues in the case if requested by either party. Additionally, Penal Code section 1127 provides, in relevant part, as follows: In charging the jury the court mayinstruct the jury regarding the law applicable to the facts of the case... . Either party may present to the court any written charge on the law, but not with respect to matters of fact, and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, it mustbe refused... . “The scope of a trial court’s duty to deliver instructions requested by the defense is greater than its obligation to instruct the jury sua sponte on the general principles oflaw applicable to the case.” (People v. LaFargue (1983) 147 Cal.App.3d 878, 886.) Since an accused is entitled to have the jury fully and correctly instructed on any and all tenable theories (People v. Murphy (1974) 35 Cal.App.3d 905, 935), “[t]he court must give any correct instructions on defendant’s theory of the case which the evidence justifies...” (People v. 278 Bynum (1971) 4 Cal.3d 589, 604). Upon proper request a defendanthas the right to a pinpoint instruction directing the jury’s attention to specific evidence. (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386; People v. Jeffers (1996) 41 Cal.App.4th 917.) The Supreme Court “presumes that jurors, consciousof the gravity of their task, attend closely [to] the particular language of the trial court’s instructions in a criminal case andstrive to understand, make sense of, and follow the instructions given them.” (francis v. Franklin (1985) 471 U.S. 307, 324, fn. 9.) For this reason the arguments of counselare insufficient to cure the failure to instruct. As the Court explained in Boyde v. California (1990) 494 U.S. 370, 384: “[A]rguments ofcounsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advanceto the jury as matters of argument, not evidence, . . . and are likely viewed as the statements of advocates; the latter [the Court has] often recognized, are viewed as definitive and binding statements of the law.” Here,the trial court refused to provide the jury with several requested defense instructions and, instead, elected to read standard CALJIC instructions. However, as discussed morefully below,the specialinstructions proposed by the defense represented correct statements of the law and were relevant to the defense theory ofthe case. It should be notedthat, for the most part, the trial court did not find to the contrary, but rather refused the instructions on the ground they were “covered” by otherinstructions. While the pattern instructions have been heldto be correct statements ofthe law, they are not as detailed and comprehensive as those proposed by the defense; nor are they as carefully tailored to the defense theory in light of the evidence presented. Consequently, the trial court erred in refusing to provide the jury with appellant’s proposedinstructions, muchasit erred in disallowing defense 279 evidencein the guilt phase. As discussed more fully below,the instructional errors cannot be regarded as harmless and appellant’s sentence must, therefore, be reversed.. C. THE TRIAL COURT ERRED IN READING PATTERN INSTRUCTIONS EMPHASIZING FACT-FINDING WHILE REFUSING A DEFENSE INSTRUCTION ACKNOWLEDGING THE JURY’S MORAL DECISION AND NORMATIVE FUNCTION. The jury was provided with a numberofinstructions emphasizing fact- finding at the penalty phase. For instance CALJIC No. 8.84.1 informed the jurors: “You must determine what the facts are from the evidence received during the entire trial unless you are instructed otherwise.” (18 CT 5068 [emphasis added].) Thejury wasalso instructed with CALJIC No.8.85 which told the jury that “in determining which penalty is to be imposed you shall . .. consider the evidence.” (18 CT 5076 [emphasis added].) The jury wasalso read instructions emphasizing the manner in whichit should use the evidence to determine the facts. For example, the jurors were instructed with CALJIC No. 2.00 informing them that: “[e]vidence consists oftestimony of witnesses, writings, material objects, or anything presented to the senses and offered to prove the existence or nonexistence ofafact. (18 CT 5069 [emphasis added].) CALJIC No. 2.27 told the jury that it could rely on the testimony of a single witness “for proof of afact.” (18 CT 5073 [emphasis added].) All of these instructions emphasized the fact finding responsibilities ofjurors while none described the jury’s normative function. Appellant proposedan instruction explaining thejuror’s responsibilities at the penalty phase of the trial and distinguishing them from the guilt phase as follows: Ladies and Gentlemen of the Jury: 280 You have heard all the evidence and the arguments of the attorneys, and now it is my duty to instruct you on the law that applies to this case. The law requires that I read the instructions to you. You will have these instructions in written form in the jury room to refer to during your deliberations. You must determine what the facts are from the evidence received during the entire trial unless you are instructed otherwise. You must accept and follow the law asI state it to you, whetheror not you agree with the law. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions. Your duty in this phase of the case is different from your duty in the first part of the trial, where you were required to determine the facts and apply the law. Your responsibility in the penalty phase is not merely to find facts, but also — and most important — to render an individualized determination about the penalty appropriate for the particular defendant — that is, whether he should live ordie. (18 CT 4927 [Proposed Penalty Phase Instruction No.1.) Thetrial court refused this instruction as argumentative and covered by other instructions. (33 RT 3794.) However, the rereading of the guilt phase instructions emphasizing the jury’s fact finding responsibilities, without also reading the proposed defense instruction reminding jurors that their task was also moral and normative, may have misledjurorsinto believing that their only or primary role wasto find facts when, actually, fact-finding plays only a partial role in the penalty phase determination. The guilt phase and penalty phase tasks of a jury are different. Guilt phase jurors are expected to find facts and apply the law to the facts without injecting their personal feelings or sense ofjustice. (See CALJIC No. 1.00.) Penalty phase jurors, by contrast, are expected not only to find facts, but also to bring their own valuesinto play. As both the United States Supreme Court 281 and this Court have recognized, jurors represent the “conscience of the community” in fixing penalty in a capital case. (Witherspoon v. Illinois, supra, 391 U.S. at p. 519; People v. Thompson (1990) 50 Cal.3d 134, 185.) Thejury is charged with the “truly awesomeresponsibility of decreeing death for a fellow human.” (McGauthav. California (1971) 402 U.S. 183, 208.) In exercising that responsibility, they can, and indeed should, express their own sense of mercy. (California v. Brown (1987) 479 U.S. 538, 562-63 (dis. opn. of Blackmun, J.; Caldwell v. Mississippi (1985) 472 U.S. 320, 331 [“The [mercy] plea is made directly to the jury as only they may imposethe death sentence.”]; People v. Andrews (1989) 49 Cal.3d 200, 237 (dis. opn. of Mosk, J.).) Each juror must also express his or her own sense of sympathy, compassion, and morality. (People v. Easley (1983) 34 Cal.3d 858, 875-76 [sympathy]; Woodson v. North Carolina, supra, 428 U.S. at p. 304 (opn. of Stewart, Powell, and Stevens, JJ.) [compassion]; California v. Brown, supra, 479 U.S. at p. 545 (con. opn. ofO’Connor, J.) [morality]; Satterwhite v. Texas, supra, 486 U.S.at p. 261 (con. opn. of Marshall, J.) [“[T]he question whether death is the appropriate sentence requires a profoundly moral evaluation ofthe defendant’s character and crime.”]; People v. Haskett (1982) 30 Cal.3d 841, 863 [a penalty phasejury “decides a question the resolution ofwhich turns not only on the facts, but on the jury’s moral assessment of those facts as they reflect on whether defendant should be put to death” ].) While jurors are not to be influenced by prejudice (see CALJIC No. 8.84.1) or mere emotion (California v. Brown, supra, 479 U.S.at p. 543), the death penalty decision may include “the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.” (Woodson v. North Carolina, supra, 428 U.S. at 304 (opn. of Stewart, Powell, and Stevens, JJ.).) This decision necessarily involves subjective and 282 discretionary elements not present when ajury contemplates questionsofguilt. (Caldwell v. Mississippi, supra, 472 U.S. at 333; see also Lowenfield v. Phelps (1988) 484 U.S. 231, 254-255 (dis. opn. of Marshall, J.) [“The capital sentencing jury is asked to make a moral decision about whethera particular individual shouldlive or die. Despite the objective factors that are introduced in an attempt to guide the exercise of the jurors’ discretion,theirsis largely a subjective judgment.”].) Appellant’s requested instruction would have explained the difference between jurors’ duties at the guilt phase and their duties at the penalty phase as follows: “Your duty in this phase of the case is different from your duty in the first part of the trial, where you were required to determine the facts and apply the law. Your responsibility in the penalty phase is not merely to find facts, but also — and most important — to render an individualized determination about the penalty appropriate for the particular defendant—that is, whether he should live or die.” The languagein this paragraph was taken from this Court’s opinion in People v. Brown, supra, 46 Cal.3d at p. 448, and represents a correct statement of the law. No other instruction addressed the jury’s normative function, while other instructions emphasized the jury’s fact- finding duties. If appellant’s jury believed that its essential role was to find facts, it was likely to misunderstand and neglect its normativerole,i.e., its role as the voice and “conscience of the community” (Witherspoon v. Illinois, supra, 391 U.S. at 519) charged with the moral responsibility of determining whether appellant should live or die. No instruction informed the jurors they were free to vote for life based solely on mercy. The proposed defense instruction was, therefore, necessary in order for the jury to competently perform its function at the penalty phase andthe trial court erred in failing to 283 provide it. As discussed in subsection J. below,the instructionalerror requires reversal of appellant’s sentence. D. THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS BY REFUSING TO INSTRUCT THE JURY THAT IT WAS IMPROPER TO RELY SOLELYUPONTHE FACTS SUPPORTINGTHEMURDER VERDICT AND SPECIAL CIRCUMSTANCES FINDINGS AS AGGRAVATING FACTORS. Appellant requested three instructions that would have informed the jurors they could not base a decision to sentence appellant to death solely on the facts used to establish first degree murder or the special circumstance allegations. Proposed Penalty Phase Instruction No. 7 would have informed the jurors they could not treat the verdicts finding appellant guilty offirst degree murderand finding the special circumstanceallegationstrue, in and of themselves, as aggravating circumstances justifying a death sentence: You may nottreat the verdict and finding of first degree murder committed under [a] special circumstance[s], in and of themselves, as constituting an aggravating factor. For, under the law,first degree murder committed with a special circumstance may be punished by either death or life imprisonment without the possibility of parole. Thus, the verdict and finding which qualifies a particular crime for either of these punishments may notbe taken, in and of themselves, as justifying one penalty over the other. You may, however, examine the evidence presented in the guilt and penalty phases ofthis trial to determine how the underlyingfacts of the crime bear on aggravation or mitigation. (18 CT 4934.) Proposed Penalty Phase Instruction No. 8 further instructed: In deciding whether you should sentence the defendant to life imprisonment without the possibility of parole, or to death, you cannot consider as an aggravating factor any fact which was used by you in finding him guilty of murder in the first degree unless that fact establishes something in addition to an elementofthe crime ofmurder in the first degree. The fact that you have found Mr. Jones guilty 284 beyond a reasonable doubtofthe crime of murderin the first degree is not itself an aggravating circumstance. (18 CT 4935.) Finally, Proposed Penalty Phase Instruction No. 9 would have informedthejurors they could not double count the facts underlying a special circumstance allegation in the weighing process: You must not consider as an aggravating factor the existence of any special circumstance if you have already considered the facts of the special circumstance as a circumstance of the crimes for which the defendant has been convicted. In other words, do not consider the same factors more than once in determiningthe presence ofaggravating factors. (18 CT 4936.) Thetrial court refused to give any of these instructions finding that they were confusing and covered by CALJIC No. 8.85. (33 RT 3796.) In their absence, however, no other instructions informed the jurors of the prohibition against double counting necessary to properly channel the jury’s discretion at the penalty phase by ensuring the jury would not sentence appellant to death merely because it had found him guilty of capital murder. It is well-settled that a state’s capital-sentencing scheme must channel the sentencer’s discretion to “reasonably justify the imposition of a more severe sentence on the defendant as compared to others found guilty of murder.” (Zant v. Stephens, supra, 462 U.S. at p. 877, quoted in Lowenfield v. Phelps, supra, 484 U.S. at p. 244; see also Furman v. Georgia, supra, 408 U.S. at p. 313 (conc. opn. of White, J.) [striking down capital sentencing statutes because “there is no meaningfulbasis for distinguishing the few cases in which [a death sentence] is imposed from the many cases in whichit is not”].) As the Ninth Circuit Court of Appeals has recently held: “The Eighth Amendmentrequires that jury instructions in the penalty phase of a capital case sufficiently channel the jury’s discretion to permitit to make a principled distinction between the subset of murders for which a death sentence is 285 appropriate and the majority of murders for which it is not.” (Valerio v. Crawford (9" Cir 2002) 306 F.3d 742, 750.) Underthe standard pattern jury instructions, California’s system does not sufficiently channel the jury’s discretion because jurors are informed they mayconsiderthe “circumstances ofthe offense” in determiningpenalty, but are not informed they may not base a verdict in favor of death solely on the facts necessary to support thefirst degree murder conviction and the special circumstance allegation[s]. The bare fact that a defendant committed first-degree murderfails to justify a death sentence as comparedto life sentences given to others convicted of first-degree murder. (See Godfrey v. Georgia, supra, 446 U.S.at pp. 428- 33 [holding an aggravating factor unconstitutional because a “person of ordinary sensibility” could find it in almost every murder and, thus, the ageravating factor failed to distinguish death-sentenced cases from life- sentenced cases].) The evidence cannot be used as an aggravating factor because the evidence exists, and the aggravating factor would exist, in every single capital case in California. (See Tuilaepa v. California, supra, 512 U.S. at p. 972 [holding aggravating factors must not apply to every defendant convicted ofmurder.].) Thus, the mere fact that a defendant committeda first- degree murder cannot justify the imposition of a death sentence; yet the standard jury instructions do not convey this conceptto jurors. Jurors are told simply to weigh aggravation against mitigation, and there is no assurancethat the required constitutional channeling of discretion will occur simply by weighing aggravation against mitigation. In fact, rather than being given guidanceas to how to channelits discretion, the jury is given free reign to considerall ofthe evidence previously admitted as a circumstance of the crime of which the defendant was convicted and the existence of any special circumstances foundto be true. (See Pen. Code, § 190.3, subd. (a).) 286 Indeed, appellant’s jury was so instructed. (CALJIC No. 8.85; 18 CT 5076.) Underthe standard instructions, then, nothing precludesjurors from returning a verdict of death based solely upon the samefactors used to find appellant guilty offirst degree murder and/orto find the special circumstanceallegations to be true. The penalty phase in California doesnotin and ofitself accomplish the required channeling task because, as the scheme currently works in California, the jury is given minimal guidance at the penalty phase.“ (See Tuilaepa v. California, supra, 512 U.S. 967 [holding California’s system of ageravating factors not unconstitutional because it fails to instruct a jury on how to weigh any particular fact in the capital sentencing decision].) In People v. Melton, supra, 44 Cal.3d 713, this Court addressed the problem of “double counting” facts underlying special circumstance allegations of burglary murder and robbery murder. On this point the court held: “Of course the robbery and the burglary may not each be weighedin the penalty determination more than once for exactly the same purpose. The literal language of [Penal Code section 190.3] subdivision (a) presents a theoretical problem in this respect, since it tells the penaltyjury to considerthe ‘circumstances’ of the capital crime and any attendant statutory ‘special circumstances.’ Since the latter are a subset of the former, a jury given no clarifying instructions might conceivably double-count any ‘circumstances’ which werealso ‘special circumstances.’ On defendant’s request, the trial court should admonishthejury not to do so.” (Ud. at p. 768.) Appellant made such a request here, and the trial court improperly deniedit. 4 As discussed more fully above the statute provides no guidance and as a consequence prosecutors are free to argue mutually exclusive and contradictory factors as aggravation under subdivision (a) of section 190.3. (See discussion, supra, at pp. 182-188.) 287 In other capital sentencing schemes,the role of special circumstances (to determine death-eligibility) and aggravating circumstances (to determine death-worthiness) are presented together. (See, e.g., Nev. Rev. Stat. § 200.030(4)(a).) These systems contemplate a two-step process, with the first step involving the murder determination and the secondstep involving the penalty determination which combines death worthiness and death eligibility. Underthis type oftwo-step system, whateverthe additionalfinding at penalty phaseis called, be it a “special circumstance”or an “aggravating factor,” the jury determines whetherthe extra fact or facts exist and then weighs such facts against the mitigating evidence to determine whether a death sentence should be imposed. (See Valerio v. Crawford, supra, 306 F.3d at p. 752 [“In arriving at a penalty decision in a capital case, a Nevada jury is directed to weigh aggravating against mitigating circumstances. A Nevada jury may return a verdict ofdeath for a death-eligible defendant‘only if one or more aggravating circumstances are found and any mitigating circumstance or circumstances which are found do not outweigh the aggravating circumstance or circumstances. ””].) Undersuch a capital-sentencing system,the constitutional requirement that the sentencer’s discretion be channeled is met at the penalty phase by having the jury determine death-eligibility by ascertaining the existence of an aggravating factor from a limited category ofsuch factors. The sentencer then weighs those aggravating factors against the mitigating factors, with the characteristics of the aggravating factors serving simultaneously to narrow death-eligibility and to constrain the jury’s discretion in the weighing process. This determines death worthiness. This type of capital-sentencing system precludes the jury from reaching a death determination based merely upon the samefactors that caused it to find the defendant guilty of murder becauseit 288 must first find an aggravating circumstance and then must weigh that fact against mitigating evidence to determine death worthiness. Understandardjury instructions, California’s system provides no such constitutional safeguard because jurors are instructed to considerthe facts of the offense in determining penalty but are not instructed they may not impose a penalty of death based solely upon the same facts utilized to find the defendant guilty of capital murder. Further, the importance ofchanneling thejury’s discretion regarding the balancing of aggravating and mitigating circumstances is magnified in California because the lengthy list of special circumstances only minimally narrowsthe class of persons eligible for the death penalty. Commentators have even questioned whether California’s capital-sentencing statute is sufficient to perform this narrowing function in a proper manner. (See Stephen Shatz & Nina Rivkind, The California Death Penalty Scheme: Requiem for Furman? (1997) 72 N.Y.U. L.Rev. 1283.) This is a legitimate concern, given that only seven limited categories of first-degree murders are not death eligible, and that between 1988 and 1992 approximately 87 percent of first-degree murders had findings of special circumstances. (/d. at pp. 1324-1326, 1331.) This basic problem has been noted by Justice Broussard, who wrote that the California capital-sentencing statute “sweeps so broadly that most murderersare subject to the death penalty, and only a few excluded.” (People v. Adcox, supra, 47 Cal.3d at p. 275 (conc. opn. of Broussard, J.).) Given the minimal narrowing accomplishedby the special circumstances, and the open-ended nature of the aggravating factors in section 190.3, the jury’s discretion must be channeled at the penalty phase so that there can be a meaningful distinction between persons sentenced to death and persons who are death-eligible, but not sentenced to death. 289 If the California capital sentencing schemeis to pass constitutional muster, the use ofthe samefacts to find the defendant guilty ofcapital murder and to also find that the defendant deserves to die must be curtailed. Permitting such double-counting would mean that the same facts rendering a defendant death-eligible could then be used to sentence him to death, even in the absence of any additional facts being proved. Such a system is constitutionally impermissible since the death penalty is to be reserved for those few whoare the most culpable perpetrators of crime. (See Spazianov. Florida (1984) 468 U.S. 447, 460 n.7 [“There must be a valid penological reason for choosing from among the many criminal defendants the few who are sentenced to death.”].) This is why it is impermissible to have a mandatory death penalty statute. (See Woodson v. North Carolina, supra, 428 U.S.at p. 301.) Even though there may be the presumption that those whoare guilty of committing capital crimes could be among a group of the most culpable, and whoarethus death eligible, there must still be an individualized determination that separates membersofthis group from each other. Some are death worthy and someare not. Appellant recognizes that United States Supreme Court cases have appeared to focus the channeling decision to the eligibility phase and emphasized that the sentencing phaseis the place for a broad inquiry into all relevant mitigating evidence so that the jury can make an individualized determination regarding the appropriateness of a capital sentence. (See,e.g., Buchanan v. Angelone (1998) 522 U.S. 269, 275-76 [“It is in regard to the eligibility phase that we have stressed the need for channeling andlimiting the Jury’s discretion to ensure that the death penalty is a proportionate punishment.”].) However, decisions such as Buchanan do not contemplate a sentencing schemesuchasthatin place in California. United States Supreme 290 Court decisions de-emphasizing the need to constrain jury discretion at the penalty phase are rooted in the assumption that a capital-sentencing scheme effectively narrows the class of people eligible for the death penalty. (See Tuilaepa, supra, 512 U.S. at p. 981 (conc. opn. of Stevens, J.).) Since California’s scheme allowsfor only minimalnarrowingatthe eligibility phase, the jury’s discretion must be channeledat the selection phase in order to pass constitutional muster. Without employing such a ban, California’s capital- sentencing scheme would not “adequately channel|] the sentencer’s discretion so as to prevent arbitrary results.” (Harris v. Alabama (1995) 513 U.S. 504, 511; see also Graham v. Collins (1993) 506 U.S. 461, 468 [States mustlimit and channelthe discretion ofjudges and juries to ensure that death sentences are not meted out ‘wantonly’ or ‘freakishly.””].) | Without instructions such as those requestedin this case, there was no assurance jurors did not rendera death verdict based only upon the samefacts utilized to find appellant guilty of capital murder. Bytelling the jury it could not sentence appellant to death based merely uponthe facts it utilized to find the elements of first-degree murder, appellant’s requested instructions would have effectively served to inform the jury that it must find something to distinguish appellant from otherfirst-degree murderers. In a situation wherethejury is assessing the circumstancesofthe crime to determine whether a death sentence is to be imposed, it is virtually impossible to determine with any degree of certainty that the jury did not assess a death sentence by finding no more culpability than that required to find appellant guilty of first-degree murder with a special circumstance.” If 7° Thisis particularly true since, as discussed more fully above, the jurors were not required to return written findings regarding aggravating factors. (See discussion, supra, at pp. 217-221.) 291 the trial court had properly channeled the jury’s consideration at the penalty phase, the balance betweenthe aggravating and mitigating circumstances may have been significantly altered. The failure to give appellant’s requested instruction may well have been dispositive with respect to the jury’s decision to sentence appellant to death. Without a doubt, the State cannot showthat the error had no effect on the jury’s weighing process. (Chapman v. California, supra, 386 U.S at p. 24.) For this reason, as well as those set forth in subsection J. below, the death judgment must be reversed. E. THE TRIAL COURT ERRED BY REFUSING A DEFENSE INSTRUCTION INFORMINGJURORS THEYWEREREQUIRED TO IMPOSEA SENTENCE OF LIFE WITHOUT POSSIBILITY OF PAROLE IF THEY DETERMINED MITIGATION OUTWEIGHED AGGRAVATION. Appellant’s Proposed Penalty Phase Instruction No. 35 would have informed the jurors as follows: In determining whetheror not the aggravating circumstances outweigh the mitigating circumstances, you must not simply count up the number of circumstances and decide whether there are more of one than the other. The final test is in the relevant weight of the circumstances as determined by you, not the relative number. The existence of a single mitigating circumstance could be found by you to outweigh any numberof aggravating circumstances. If you find that the existence of a mitigating circumstance alone outweighs any numberofaggravating circumstances, you shall return a verdict of confinement in the state prison for life without the possibility ofparole. (18 CT 4965 [emphasis added].) The trial court refused this instruction as covered by CALJIC No.8.88. (33 RT 3799.) However, CALJIC No. 8.88 292 does not include the language of the last paragraph and is constitutionally deficient as a result. California Penal Code section 190.3 directs that, after considering aggravating and mitigating factors, the jury “shall impose” a sentence of confinementin state prison for a term of life without the possibility of parole if “the mitigating circumstances outweigh the aggravating circumstances.” (Pen. Code, § 190.3.)”° The United States Supreme Court has held thatthis mandatory language is consistent with the individualized consideration of the defendant’s circumstances required underthe Eighth Amendment. (See Boyde v. California (1990) 494 U.S. 370, 377.) This mandatory language, however, is not included in CALJIC No. 8.88. Instead, the instruction only addresses directly the imposition of the death penalty, and informs jurors the death penalty may be imposedif aggravating circumstances are “so substantial” in comparison to mitigating circumstances that the death penalty is warranted. While the phrase “so substantial” plainly implies some degreeofsignificance, it does not properly convey the “greater than” test mandated by Penal Code section 190.3. The instruction by its terms would plainly permit the imposition of a death penalty whenever aggravating circumstances were merely “of substance” or “considerable,” even if they were outweighed by mitigating circumstances. Put another way, reasonable jurors might not understand that if the mitigating circumstances outweighed the aggravating circumstances, they were requiredto return a verdictoflife without possibility of parole. © The statute also states that if aggravating circumstances outweigh mitigating circumstances, the jury “shall impose” a sentence of death. However, this Court has held that this formulation of the instruction improperly misinformed the jury regarding its role and disallowed it. (See People v. Brown, supra, 40 Cal.3d at p. 544, fn. 17.) 293 This Court has found the formulation in CALJIC No. 8.88 permissible because “[t]he instruction clearly stated that the death penalty could be imposedonly ifthe jury foundthat the aggravating circumstances outweighed mitigating.” (People v. Duncan, supra, 53 Cal.3d at p. 978.) The Court reasoned that since the instruction stated that a death verdict requires that aggravation outweigh mitigation, it was unnecessary to instruct the jury ofthe converse. The opinion cites no authority for this proposition, and appellant respectfully urges that the case is in conflict with numerous opinions disapproving instructions emphasizing the prosecution theory ofthe case while minimizing or ignoring that ofthe defense. (See, e.g., People v. Moore (1954) 43 Cal.2d 517, 526-29; People v. Costello (1943) 21 Cal.2d 760; People v. Kelley (1980) 113 Cal.App.3d 1005, 1013-1014; People v. Mata (1955) 133 Cal.App.2d 18, 21; see also People v. Rice (1976) 59 Cal.App.3d 998, 1004 [instructions required on “every aspect”ofcase, and should avoid emphasizing either party’s theory]; Reagan v. United States (1895) 157 U.S. 301, 310.)” ™ There are due process underpinningsto these holdings. In Wardius v. Oregon (1973) 412 U.S. 470, 473, fn. 6, the United States Supreme Court warnedthat“state trial rules which provide nonreciprocal benefits to the State whenthe lack of reciprocity interferes with the defendant’s ability to secure a fair trial” violate the defendant’s due process rights under the Fourteenth Amendment. (See also Washington v. Texas (1967) 388 U.S. 14, 22; Gideon v. Wainwright (1963) 372 U.S. 335, 344; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 372-377; cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure (1960) 69 Yale L.J. 1149, 1180-1192.) Noting that the Due Process Clause “does speak to the balance of forces between the accused andhis accuser,” Wardius held that “in the absence of a strong showing ofstate interests to the contrary” there “must be a two-way street” as between the prosecution and the defense. (Wardius, supra, 412 US. at p. 474.) Though Wardius involved reciprocal discovery rights, the same principle must apply to jury instructions. 294 People v. Moore, supra, 43 Cal.2d 517, is instructive on this point. There, this Court stated the following abouta set of one-sided instructions on self-defense: It is true that the . . . instructions . . . do not incorrectly state the law. . ., but they stated the rule negatively and from the viewpoint solely of the prosecution. To the legal mind they would imply [their corollary], but that principle should not have been left to implication. The difference between a negative and a positive statement of a rule of law favorable to one or the other of the parties is a real one, as every practicing lawyer knows. ... There should be absolute impartiality as between the People and the defendant in the matter of instructions, including the phraseology employedin the statement offamiliar principles. (Id. at pp. 526-527 [internal quotation marks omitted].) In other words, contrary to the apparent assumption in Duncan, the law does not rely on jurors to infer one rule from the statement of its opposite. Nor is a pro-prosecution instruction saved by the fact that it does notitself misstate the law. Even assuming it were a correct statement of law, CALJIC No. 8.88 stated only the conditions under which a death verdict could be returned, and contained no statement of the conditions under which a verdict oflife was required. The instruction requested by appellant, on the other hand, clearly and accurately informedthe jury ofthe law on this point, and thetrial court erred in failing to provide it to the jury. As discussed in subsection J. below,the trial court’s erroneous refusal to give the requested instructions requires the reversal of appellant’s death sentence. 295 F. THE TRIAL COURT FERRED IN REFUSING APPELLANT’S INSTRUCTIONS THAT ONE MITIGATING FACTOR ALONE COULD SERVE AS THE BASIS FOR LIFE WITHOUT THE POSSIBILITY OF PAROLE AND AN INSTRUCTION THAT THE JURORS WERE FREE TO VOTE FOR LIFE EVEN IN THE ABSENCE OF SPECIFIC MITIGATING FACTORS. The trial court rejected several proposed defense instructions which would have informed the jury that any one mitigating factor, standing alone, may support a decision that death is not the appropriate punishment on the grounds that they were covered by CALJIC No. 8.88. (18 CT 4941 [Proposed Penalty Phase Instruction No. 11], 4948 [Proposed Penalty Phase Instruction No. 18], 4964 [Proposed Penalty Phase Instruction No. 34], 4965 [Proposed Penalty Phase Instruction No. 35]; 33 RT 3796-3799.) Appellant also requested an instruction informingthe jurors of their ability to find in favor of life even in the absenceof specific mitigating factors. (18 CT 4950 [Proposed Penalty Phase Instruction No. 20].) This instruction was also refused as covered by CALJIC No. 8.88. (33 RT 3797.) The court’s refusal to give these instructions was error. The instructions were non-argumentative and not cumulative with respect to other instructions on mitigation. Moreover, even if somewhat duplicative, the instructions would haveclarified for the jurors the nature of the process of moral weighing in which they were to engage and explained the conceptsset forth more generally in pattern instructions provided by the trial court. Most importantly, they made explicit the fact that any single factor in mitigation could provide a sufficient reason for imposing a sentence ofless than death, and that the jurors were free to vote for life even in the absence of specific mitigating factors. All were correct statements of the law. “The jury must be free to reject death if it decides on the basis of any constitutionally relevant evidence or observation that [death] is not the 296 appropriate penalty.” (People v. Brown, supra, 40 Cal.3d at p. 540 [reversed on other grounds in California v. Brown, supra, 479 U.S. 538].) Jurors must be given this freedom, because the penalty determination is a “moral assessment of [the] facts as they reflect on whether defendant should be put to death.” (People v. Easley (1983) 34 Cal. 3d 858, 880; accord People v. Haskett (1982) 30 Cal.3d. 841, 863.) Since this assessmentis “an essentially normative task,” nojuror is required to vote for death “unless, as a result ofthe weighing process, [he or she] personally determines that death is the appropriate penalty under all the circumstances.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1035.) People v. Sanders (1995) 11 Cal.4th 475, noted with approval an instruction that “‘expressly told the jury that penalty was not to be determined by a mechanicalprocess of counting, but rather that the jurors were to assign a weight to each factor, and that a single factor could outweigh all other 399factors.”” (id. at p. 557, quoting People v. Cooper, supra, 53 Cal.3d at p. 845 [emphasis added].) As this Court has recognized, such an instruction helps eliminate the possibility jurors will misapprehendthe nature of the penalty determination process or the scope of their discretion to determine the appropriate penalty through the weighing process. (People v. Sanders, supra, 11 Cal.4th at 557; see also People v. Anderson, supra, 25 Cal.4th at pp. 599-600 [approving an instruction that “any one mitigating factor, standing alone,” can suffice as a basis for rejecting death].) “The weighing process is ‘merely a metaphorfor the juror’s personal determination that death is the appropriate penalty under all the circumstances.” (People v. Jackson (1996) 13 Cal.4th 1164, 1243-1244, quoting People v. Johnson (1992) 3 Cal.4th 1183, 1250.) Thus, the death penalty statute permits the jury in a capital case to return a verdict of life 297 without possibility of parole even in the complete absence of any mitigating evidence. (See People v. Duncan, supra, 53 Cal.3d at p. 979; People v. Brown, supra, 40 Cal.3d at pp. 538-541 [holding a jury may return a verdict of life without possibility of parole even if the circumstances in aggravation outweigh those in mitigation].) The jurors in this case were never informed of this fact. To the contrary, the language of CALJIC No. 8.88 implicitly instructed the jurors that ifthey found the aggravating evidence “so substantial in comparison with the mitigating circumstances,” even assuming thatthis led them to believe that the aggravating evidence outweighed the mitigating evidence, death was ipsofacto the permissible and proper verdict. From this jurors easily could have inferred that if aggravation was found to outweigh mitigation, a death sentence was compelled. In order to counteract this incorrect assumption, the trial court should have instructed the jury, as appellant requested, that it was unnecessary for them to find mitigation in order to imposea life sentence instead of a death sentence. In the absence of instructions such as those requested by appellant jurors were likely unawarethey hadthe discretion to imposea sentenceoflife without possibility of parole even if they concluded the circumstances in aggravation outweighed those in mitigation, and even if they found no mitigation whatever. Instead, the trial court instructed the jury to weigh the aggravating and mitigating circumstances without any guidance regarding how to weigh them. Without this guidance,it is likely that one or more jurors did not realize a single mitigating factor could outweigh all the aggravating evidence. Appellant’s requested instructions on this point were accurate statements oflaw which pinpointed a crucialprinciple ofmitigation; they were non-argumentative, essential to appellant’s defense, and should have been given. (People v. Sears, supra, 2 Cal.3d at p. 190.) As discussed in 298 subsection J. below, the trial court’s erroneous refusal to give the requested instructions requires the reversal of appellant’s death sentence. G. THE TRIAL COURT ERREDIN REFUSING TO INSTRUCT THE JURORS THAT, CONTRARY TO VIEWS EXPRESSED BY MANY POTENTIAL JURORS DURINGVOIRDIRE, DEATH IS THE MOST SEVERE PENALTY THE LAW CAN IMPOSE. During the course of voir dire several prospective jurors expressed the opinion that a sentence oflife without the possibility of parole was actually worse than the death penalty. (7 CT 1920; 9 CT 2255, 2459; 10 CT 2778; 11 CT 2823, 3095; 12 CT 3182; 14 CT 3739, 3783, 3811, 3878; 15 CT 4034, 4170, 4238; 16 CT 4352.) However, under the law “death is qualitatively different from all other punishments and is the ‘ultimate penalty’ in the sense ofthe most severe penalty the law can impose.” (People v. Hernandez, supra, 47 Cal.3d at p. 362, [citing Caldwell v. Mississippi (1985) 472 U.S. 320, 329; Woodson v. North Carolina, supra, 428 U.S. at p. 305]; accord People v. Murtishaw (1989) 48 Cal.3d 1001, 1027.) Appellant sought to have the jurors informed of this fact under Proposed Penalty Phase Instruction No. 3A, as follows: Some of you expressed the view during jury selection that the punishment of life in prison without the possibility of parole was actually worse than the death penalty. You are instructed that death is qualitatively different from all other punishmentsandis the ultimate penalty in the sense ofthe most severe penalty the law can impose. Society’s next most serious punishment is life in prison without possibility of parole. It would be a violation of your duty, as jurors, if you were to fix the penalty at death with a view that you were thereby imposingthe less severe of the two available penalties. (18 CT 4930.) Thetrial court refused the instruction on the groundsthatit was argumentative and not supported by authorities. (33 RT 3794.) The 299 instruction, however, was not argumentative and correctly stated the law according to the authorities cited, Murtishaw, supra, and Hernandez, supra. Nootherinstructions contained the information, and thetrial court erred in refusing to provide it to the jurors. As discussed in subsection J. below,the trial court’s erroneousrefusalto give the instructions requestedby the defense requires the reversal of appellant’s death sentence. H. THE TRIAL COURT ERRED IN REFUSING TO GIVE APPELLANT’S PROPOSED INSTRUCTIONS REGARDING THE SCOPE OF MITIGATION. The trial court refused to give Proposed Penalty Phase Instruction No.s 10, 11, 13 through 17 and 23, each ofwhich elaborated on the meaning ofthe term “mitigating factor,” on the grounds that they were covered by other instructions. (18 CT 4937-4947, 4952; 33 RT 3796-3797.) All of these instructions clarified for the jury the scope of mitigation in the case. For example, Proposed Penalty PhaseInstruction No. 10 wasdrafted to inform the jury in detail aboutall the evidence it could consider in mitigation. (18 CT 4937-4940.) Proposed Penalty Phase Instruction No. 11 informed the jurors that the mitigating factors mentioned by the court were merely examples of some ofthe matters they might take into consideration in reaching a decision, and indicated that they could also consider any other circumstancesrelating to the case or the defendant. (18 CT 4941.) Proposed Penalty Phase Instruction No. 13 stated that the jury could consider any fact about the offense or the defendant which “in fairness, sympathy or compassion” could be considered to reduce appellant’s culpability. (18 CT 4943.) Proposed Penalty Phase Instruction No. 14 told thejury it should not consider mitigation limited to specific factors, and that thejury could consider anything mitigating that was shown bythe evidence. (18 CT 4944.) Proposed Penalty Phase Instruction No. 15 told the jury that anything could be mitigating, including appellant’s background, and taken into account when deciding to impose a 300 sentence oflife without the possibility of parole. (18 CT 4945.) Proposed Penalty Phase Instruction No. 17 informed jurors that if the mitigating evidence gave rise to compassion or sympathy, they could reject death just based on this sympathy or compassion. (18 CT 4947.) Proposed Penalty Phase Instruction No.s 16 and 17 informed the jurors they could take into consideration their observations of appellant during thetrial in addition to the evidence introduced. (18 CT 4946-4947.) Finally, Proposed Penalty Phase Instruction No. 23 elaborated on “sympathy” in the context of penalty determination. (18 CT 4952.) Asstated above, the defendantis entitled, upon request, to instructions which relate particular facts to a legal issue or pinpoint the crux of the defendant’s case. Pinpointinstructions “are required to be given upon request whenthere is evidence supportive of the theory, but they are not required to be given sua sponte.” (People v. Saille, supra, 54 Cal.3d at p. 1119.) Appellant requested the pinpoint instructions here at issue andthetrial court was obliged to deliver them. (/d. at p. 1119; see also People v. Webster (1991) 54 Cal.3d 411, 443.) Even whenotherinstructionsgivenare legally sufficient, a defendantis still entitled to instructions whichplainly state his theory of defense such as those requested here. (See People v. Castillo, 16 Cal.4th 1009, 1020-21 (1997) (con. opn. of Brown, J.).) This point wasforcefully stated in People v. Cook (1905) 148 Cal. 334, 347, where this Court declared: The court, however, refused the instruction, and its refusal is justified on the ground that anotherinstruction framed by the judge on the same point wasgiven. It is true that the instruction given stated the law correctly, but it was brief, general, and colorless in comparison with the instruction asked, and had the effect of minimizing the importance of a consideration which could not have been stated with too much emphasis. 301 Cook also found that two other instructions requested by the defendant should have been given because, although the instructions given on the same point were “entirely correct and proper,” they “contained only an implication ofthe proposition which the defendant hada rightto havestated to the jury in direct terms.” (/d. at pp 347-348.) This Court has approved language similar to that requested here as insuring that the jury fully understands the concept ofmitigation. (See People v. Hunter (1989) 49 Cal.3d 957, 988.) Appellant was also entitled to instructions which told the jury that mitigating factors are unlimited, and include anything about the defendant or the case, or the defendant’s background. (See People v. Robbins (1988) 45 Cal.3d 867, 886 [approving an instruction detailing the kinds of mitigation the jury could consider]; see also People v. Kelly (1990) 51 Cal.3d 931, 969 n.12 [same].) It has also been recognized that a “jury may, in appropriate circumstances, consider a defendant’s courtroom behavior and demeanor in its sentencing determination.” (People v. Jackson (1990) 49 Cal.3d 1200, 1206.) Here, appellant had the right to have thejury given illustrative examples of the types of evidence that could be considered as factors in mitigation beyond those specified by statute. The proposed instructions would have focused the jury’s attention on particular theories of mitigation on which the defense was relying. The instructions therefore explained andillustrated in a non-argumentative manner the application of the general principles of mitigation to appellant’s case. Hadthe instructions been given, they would have guarded against the possibility that the jury did not understand the breadth of the evidence it could consider as mitigating. The trial court, therefore, erred in refusing them. Asdiscussed in subsection J. below,thetrial 302 court’s erroneous refusal to give the requested instructions requires the reversal of appellant’s death sentence. 1. THE TRIAL COURT VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTSBYREFUSINGTO INSTRUCT ONLINGERINGDOUBT OF GUILT. Appellant requested that the following instruction regarding lingering doubt be delivered to jury: Although proof of guilt beyond a reasonable doubt has been found, you may demand a greater degree of certainty for imposition ofthe death penalty. The adjudication of guilt is not infallible, and any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may come to light which have not been discovered. (18 CT 4957 [Defendant’s Requested Instruction No. 27].) The trial court refused the proposedinstruction on the ground that it was argumentative and not supported by the authorities cited. (33 RT 3799.) This ruling was erroneous. It is well established that a capital defendant hasa right to have penalty phasejurors consider any residual or lingering doubt as to his guilt. (See, e.g., People v. Slaughter (2002) 27 Cal.4th 1187, 1219; People v. DeSantis (1992) 2 Cal.4th 1198, 1238; People v. Coleman (1969) 71 Cal.2d 1159, 1168: People v. Terry (1964) 61 Cal.2d 137, 145-148.) A jury determining both guilt and penalty may properly conclude the prosecution has proven the defendant’s guilt beyond a reasonable doubt, yet demanda greater degree of certainty of guilt for the imposition of the death penalty. (People v. Terry, supra, 61 Cal.2d at 145-148.) In People v. Cox, supra, 53 Cal.3d at pp. 675-79, this Court, relying on Franklin v. Lynaugh (1988) 487 U.S. 164, 174, held that although a capital 303 defendantis entitled to present evidence on and argue residual doubt, neither the Eighth Amendment nor the California Constitution requires a residual- doubt instruction. This holding, at least as it pertains to the Eighth Amendment, should be reconsideredin light ofrecent United States Supreme Court cases. Cox relied on Franklin's holding that because “lingering doubt” is a not an aspect ofthe defendant’s character, record or a circumstanceofthe case, the trial court had no obligation to instruct on it. (51 Cal.3d at p. 575.) However, recent United States Supreme Court cases underminethis statement in Franklin, and suggest that a jury must considerlingering doubt, even ifnot a circumstance of the case or an aspect of the defendant’s record or character.” Recently the United States Supreme Court observed: “‘Relevant mitigating evidence is evidence which tends logically to prove or disprove somefact or circumstance which a fact-finder could reasonably deem to have mitigating value.” (Tennard v. Dretke (2004) U.S. __ [124 S.Ct. 2562, 2570], citing McKoy v. North Carolina (1990) 494 U.S. 433, 440.) The court concluded that mitigation evidence is any evidence the trier of fact could “reasonably find warrants a sentence less than death.” (Ud. 124 S.Ct. at p. 2570.) Nothing in this statement limits mitigation evidence to evidence of 29 66. “character,” “record,” or the “circumstancesofthe case.” Lingering doubtis an acknowledged factor which the jury could use to choose a sentenceoflife imprisonment, and because the “Eighth Amendmentrequires that the jury be able to consider and give effect to all of a capital defendant’s mitigating 8 The Court will revisit the issue next term having grantedcertiorari in Oregon v. Guzek (2005) =~ U.S. __‘[125 S.Ct. 1929], which presents the question whether a capital defendant has a nght under the Eighth and Fourteenth Amendments to offer evidence and argument in support of a residual doubt claim as to whether the jury should impose the death penalty. 304 evidence (Boyde v. California, supra, 494 U.S. at pp. 377-378), an instruction making it clear that lingering doubt can be consideredas mitigation is required. In the past, this Court’s rejection of a constitutional right to an instruction on lingering doubt was based upon the notion that CALJIC No. 8.85 adequately alertsjurors they may considerlingering doubtin their penalty determination. (People v. Lawley, supra, 27 Cal.Ath at p. 166; People v. Osband (1996) 13 Cal.4th 622, 716.) Specifically, this Court has held that factors (a) and (k) are adequate for a jury to give effect to lingering doubt. (People v. Osband, supra, 13 Cal.4th at p. 716.) This conclusion, however, should be reconsidered. Factor (a) directs itself to circumstancesofthe crime. (See CALJIC No. 8.85.) A reasonable juror would believe that this relates to the mannerin which the crimeitselfwas effectuated and not necessarilyto the defendant’s involvementin the crime. Thus, factor (a) encouragesjurors to focus on the crimeitself, not the culpability or guilt of the persons who may have committed the crime, and does not lend itself to consideration of a lingering doubt of guilt. Factor (k) directs the jury to consider any circumstance which may extenuate the gravity ofthe crime. (See CALJIC No. 8.85.) Once again, this factor focuses on the nature of the crime and not any lingering doubt that jurors may have about a defendant’s participation in it. Factor (k) also directs the jury to consider any aspect of the defendant’s character or record, but this languagedoes not relate to residual doubtofguilt. In fact, it steers the jury in the opposite direction since an aspect of the defendant’s character or record has nothing to do with the crime. Factors (a) and (k) simply do not address residual doubt regarding the defendant’s guilt. Consequently, appellant’s requested instruction, which focused specifically on residual doubt, should have been given by the trial court. 305 Appellant’s proposed instruction was appropriately phrased, unlike other instructions previously rejected by this Court. For example, unlike the instruction requested in People v. Thompson (1988) 45 Cal.3d 86, 135, appellant’s lingering-doubt instruction did not “invit[e] readjudication of matters resolved at the guilt phase.” Instead, it properly “call[ed] upon residual feelings of doubt” and nothing more. Further, unlike the requested instruction in People v. Cox, supra, 53 Cal.3d 618, which would have required the jury not only to consider lingering doubt, but also to consider it as a mitigating factor, the one proposed by appellant did not “erroneously prescribe[] that the jury evaluate this factor in a particular manner.” (/d. at p. 678 n.20.) Instead, the instruction merely permitted the jury to consider lingering doubt. In the clearly understandable languageofthis instruction, it was only if a juror entertained such doubtsthat he or she “may”(not “must”) consider them in determining the appropriate penalty. (18 CT 4957 [“. .. any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty .. ..”].) Thus, the proposed instruction waseffectively no different than the court-approved consciousness- of-guilt and confession/admission instructions which read: “Ifyou find . ., you may consider... .” (See CALJIC No. 2.03, CALJIC No. 2.70, CALJIC No. 2.71.) Moreover, in the capital sentencing context, appellant would have beenjustified in using the phrase “must consider”(rather than “may consider”) since a penalty juror is required to at least consider any relevant mitigating evidence. (Eddings v. Oklahoma, supra, 455 U.S. at pp. 113-117; People v. Brown, supra, 40 Cal.3d at pp. 537-538 [reversed on other grounds in California v. Brown, supra, 479 U.S. 538]; see also Pen. Code, § 190.3.) Thus, far from being argumentative or pro-defense, appellant’s requested 306 instruction actually asked from the jurors less, not more, than he waslegally entitled to. California law mandates that lingering doubt be considered as mitigation when warranted by the evidence. (People v. Terry, supra, 61 Cal.3d at 145-147.) Appellant requested an instruction on lingering doubt “intended to supplement or amplify more general instructions” (People v. Thompkins (1987) 195 Cal.App.3d 244, 257). He was entitled to such an instruction understate law, and the trial court erred in refusing the request. As discussed in subsection J. below,the trial court’s erroneousrefusal to give the instructions requested by the defense requires the reversal of appellant’s death sentence. J. PREJUDICE The trial court committed federal constitutional error by denying appellant his due process nghts: (1) to instruction on the defense theory ofthe case (see United States v. Sotelo-Murillo (9" Cir. 1989) 887 F.2d 176, 180 [holding that a criminal defendant’s right to an instruction on his theory of the case “implicates fundamental constitutional guarantee”]; United States v. Escobarde Bright (9" Cir. 1984) 742 F.2d 1196, 1201 [holding that a criminal defendant’s right to have the jury instructed on his theory ofthe case is “basic to a fair trial”]); (2) to a fair opportunity to defend against the state’s accusations (see Chambers v. Mississippi, supra, 410 U.S. 284, 294 [holding “[t]he right of an accusedin a criminaltrial to due processis, in essence,the right to a fair opportunity to defend against the State’s accusations”); and (3) to fundamental fairness in the process by which the jury determined his penalty (see Albright v. Oliver (1994) 510 U.S. 266, 283 [conc. opn. of Kennedy, J.) [noting that “due process “ensure[s] fundamental fairness in the determination of guilt at trial”]; Spencer v. Texas, supra, 385 U.S.at pp. 563- 307 564 [holding that “the Due Process Clause guarantees the fundamental elements of fairness in a criminaltrial”]). The error also violated due process by arbitrarily depriving appellant ofhis state night to the delivery ofrequested pinpoint instructions supported by the evidence. (See Hicks v. Oklahoma, supra, 447 U.S. 343, 346; Fetterly v. Paskett, supra, 997 F.2d 1295, 1300.) | Where,as here, error offederal constitutional dimension has occurred, reversal is required unless the Court determines that it was harmless beyond a reasonable doubt. (Sullivan y. Louisiana, supra, 508 U.S. at p. 279; Yates v. Evatt, supra, 500 U.S. at p. 404; Chapman v. California, supra, 386 U.S. at p. 24; People v. Lucero, supra, 44 Cal.3d at p. 1032.) For state law violations in the penalty phase of a capital trial, reversal is required ifthere is any “reasonable possibility” that the verdict would have beendifferent in the absence of the error. (People v. Brown, supra, 46 Cal.3d at pp. 447-448.) Reversal is required underthis standardifthere is a reasonable possibility that even a single juror might have reached a different decision absentthe error. (People v. Ashmus (1991) 54 Cal.3d 932, 983-984 [“we must ascertain how a hypothetical ‘reasonable juror’ would have, or at least could have, been affected.’’].) Given that the jurors’ penalty determinationis an individualized, normative one, and the need for heightened reliability in capital cases, the “reasonable possibility” standard is “more exacting” than the Watson standard for reversal applied to guilt phase errors. (People v. Brown, supra, 46 Cal.3d at p. 447; see also People v. Ashmus, supra, 54 Cal.3d at p. 965 [equating reasonable possibility standard under Brown with the federal harmless beyond a reasonable doubt standard].) Under either standard, it is clear that the penalty judgment must be reversed. In the absence of the instructions proposed by the defense, the jury instructions in this case were vague and imprecise, failed accurately to 308 describe the weighing process the jury must apply in capital cases, and deprived appellant ofthe individualized consideration the Eighth Amendment requires. The aggravating and mitigating factors were closely balancedin this case. Although the prosecution relied heavily upon prior crimes as an aggravating factor, most of these involved domestic disputes and only moderate violence. The jurors were required to balance this factor against appellant’s childhood history ofparental abuse, his psychological background, and his record of good behavior in custody. Under these circumstances there is at least a reasonable possibility that at least one juror might have reached a different decision absentthe error. The instructions also were improperly weighted toward death and contradicted the requirements of Penal Code section 190.3 by indicating that a death judgment could be returned if the aggravating circumstances were merely “substantial” in comparison to mitigating circumstances, thus permitting the jury to impose death even if it found mitigating circumstances outweighed aggravating circumstances. The prosecution argued that if the jurors found the aggravators substantially outweighedthe mitigators then death wasthe appropriate verdict — implying that jurors could not vote for life based on one mitigating factor alone, or even on no mitigating factors and based only on mercy. (34 RT 3887-3888.) Again, there is at least a reasonable possibility that at least one juror might have reached a different decision absentthe error. For all these reasons, reversal of appellant’s death sentenceis required. (People v. Brown, supra, 46 Cal.3d at 448.) 309 CONCLUSION For the reasons set forth herein, the judgment of conviction and sentence of death must be reversed. Respectfully submitted, Kimberly J. Grove Attorney for Appellant CERTIFICATION OF WORD COUNT I hereby certify that, according to my word processing program,this brief contains 94,580 words exclusive ofthis certification and the tables. Kimberly J. Grove 310