PEOPLE v. RANGEL (PEDRO)Appellant’s Opening BriefCal.June 18, 2008 TABLE OF CONTENTS STATEMEN'I' OF: THE CASE ................................................................................ 1 ....................................................................................... S'I'ATEMEN'I' OF FACTS 6 ARGUMENT ......................................................................................................... 55 Jury Selection I . APPEL1,ANT WAS DENIED THE RIGHT TO A JURY DRAWN FROM A REPRESENTATIVE CROSS-SECTION OF THE COMMIJNITY, BY THE SELECTION OF JURORS IN ORDER ACCORDING TO THEIR APPEARANCE ON ......................... THE FIRST PANELS OF PROSPECTIVE JURORS. 5 5 11. APPELLANT WAS DENIED DUE PROCESS BY THE TRIAL COURT'S REFUSAL TO EXCUSE A PROSPECTIVE JUROR, ULTIMATELY SEATED ON THE JURY, WHO HAD A FIXED OPINION ON THE DEATH PENALTY AND WAS PROPERLY CHALLENGED FOR CAUSE. ....................................... 66 111. IT WAS ERROR TO DENY DEFENSE CHALLENGES TO TWO SWORN JURORS. ONE OF WHOM KNEW VICTIM CHUCK DURBIN'S BROTHER RANDY, AND ONE OF WHOM WAS FORMERLY RELATED BY MARRIAGE TO ........................................................................... DURBIN'S MOTHER 77 Guilt Phase Evidence IV. THE RECORD CONIAINS INSUFFICIEN'T EVIDENCE OF PREMEDIATION TO SUPPORT THE CONVICTION ON ....................................... COlJNT I, MURDER OF CHUCK DIJRBIN 85 V. THE RECORD CONTAINS INSIJFFICIENT EVIDENCE TO SUPPORT THE FINDING OF PERSONAL USE OF A FIREARM AS TO COUNT 11. MURDER OF JUAN URIBE. ............ 97 VI. API'ELLANrI' WAS DENIED THE RIGHT TO CONFRON'T'ATION BY THE ADMISSION OF OUT-OF- COURT S'17ATEMENTS AGAINST PENAL INTEREST OF HIS SON AND CO-DEFENDANT, PEDRO RANGEL 111. 'I7HROUG11 'I'HE TESTIMONY OF ANOTHER SUSPECT. JESSE RANGEL, AND BY THE USE OF AN OUT-OF- COURT STATEMENT OF HIS WIFE. MARY RANGEL. INTRODUCED AS A N ADOPTIVE ADMISSION THROUGH ............... THE 'TESTIMONY OF JESSE'S WIFE ERICA RANGEL 104 Guilt Phase Jury Instructions VII. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY ON FLIGHT AS EVIDENCE OF CONSCIOUSNESS OF GUILT. WHERE OTHER SUSPECTS ALSO FLED THE CRIME SCENE AND LATER FLED MADERA, BUT THE STANDARD FLIGHT INSTRUCTION ONLY PINPOINTED APPELLANT'S CONDUCT. ............................................................. 127 VIII. TI-IE TRIAL COURT FAILED TO INSTRUCT SUA SPONTE ON THE LESSER INCLIJDED OFFENSES OF VOLUNTARY MANSLAUGHTER AND INVOLUNTARY MANSLAUGHTER. ........................................................................... 139 IX. THE TRIAL COURT FAILED TO INSTRUCT SUA SPONTE ON THE PRINCIPLES OF ACCOMPLICE TESTIMONY, AS APPLIED 1'0 THE OUT-OF-COURT STATEMENTS OF HIS SON AND CO-DEFENDANT. ........................................................... 155 X. THE CONVICTION ON COUNT TWO, MURDER OF JUAN URIBE, MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO READ, SUA SPONTE, A JURY INSTRUCTION ON THE EFFECT OF VOLUNTARY INTOXICATION ON THE ELEMENT OF SPECIFIC INTENT TO AID AND ABET. .......................................................................... 164 XI. THE 'I'RIAL COURT ERRED BY FAILING TO CONSIDER A JIJRY INSTRUCTION ON ACCESSORY AS A LESSER- RELA'I'ED OFFENSE. ........................................................................ 178 Guilt Phase Prosecution Misconduct XII. TIlE PROSECUTOR COMMITTED MISCONDUCT BY ARGUING 7'0 THE JlJRY THAT MURDER. INCLUDING IMPLIED MALICE SECOND DEGREE MURDER. MUST BE ................................... ACCOMPANIED BY AN INTENT TO KILL 198 XIII. 1 PROSECUTOR COMMIT'l'ED MISCONDUCT BY ARGUING TO THE JURY THAT PREMEDITATED MURDER IS ESTABLISHED MERELY BY EVIDENCE OF ........................................................................ AN INTENT TO KILL 2 12 XIV. THE PROSECUTOR COMMITTED MISCONDUCT BY ARGUING TO THE JURY THAT 1'HE TESTIMONY OF RICHARD DIAZ. AN ACCOMPLICE. COULD BE CORROBORATED BY THE TESTIMONY OF JESSE ............................................ RANGEL, ANOTHER ACCOMPLICE. 2 17 Penalty Phase Evidence XV. THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE THAT JUAN URIBE WAS A DRUG DEALER, AND THAT THERE WAS DRUG USE AND DRUG DEALING AT THE DURBIN HOUSE AT THE TIME OF THE SHOOTINGS, TO IMPEACH PROSECUTION WITNESSES AND TO REBUT VICTIM IMPACT TESTIMONY IN SUPPORT OF THE DEATH PENALTY ............................................................................. 224 XVI. EVIDENCE WAS IMPROPERLY INTRODUCED OF THE DEATH OF CHUCK DURBIN'S DAUGHTER NATASHA AND THE AUTISM OF HIS SON BRETT. WITHOUT FOIJNDAl'IONAI, EVIDENCE THAT THESE CIRCUMSTANCES WERE RELA71'ED TO DURBIN'S DEATH. ............................................................................................... 244 XVII. APPELLANT WAS DENIED THE CONSTITUTIONAL RIGIiT TO CONFRONTATION BY THE USE IN EVIDENCE ........... OF A STAT1;MI:NT TAKEN FROM NATASHA DIJRBIN. 257 Penalty Phase Jury lnstructions XVIII.THE TRIAL COURT ERRONEOUSLY REFUSED REQUESTED PENA1,l.Y PHASE INSTRUCTIONS THAT WOULD HAVE INCLUDED THE MOTIVATION FOR THE KILLING O F JUAN URIBE AMONG MITIGATING FACTORS. .......................................................................................... 270 XIX. THE TRIAI, COIJR?' IMPROPERLY REFUSED DEFENSE- REQlJESTED PENALTY PHASE INSTRIJCTIONS ON THE ................................ ASSESSMEN'I' OF MITIGATING EVIDENCE 286 XX. THE TRlAL COURT FAILED TO INSTRUCT THE PENALTY PHASE JURY SUA SPONTE ON THE CIRCUMSTANTIAL EVIDENCE RULE. ........................................ 296 Imposition of the Death Penalty XXI. THE TRIAL COURT'S FINDING OF PREMEDITATION IN COUNT ONE, IN DENYING THE DEFENSE MOTION TO MODIFY THE DEATH VERDICT. WAS AN ABUSE OF DISCRETION AND A VIOLATION OF DUE PROCESS. .............. 300 XXII. MANY FEATURES OF THE CALIFORNIA CAPITAL SENTENCING SCHEME, AS INTERPRETED AND APPLIED BY THIS COURT, VIOLATE THE FEDERAL CONSTITUTION AND INTERNATIIONAL NORMS. ................... 306 CONCLUSION .................................................................................................... 314 CERTIFICATE OF LENGTH ............................................................................. 3 14 TABLE OF AUTHORITIES FEDERAL CASES Alexander v . Louisiana ( 1972) 405 U.S. 625 ......................................................... 65 . . .................................................... Andrews v Collins (5th Cir 1994) 2 1 F.3d 6 12 83 . Apprendi v New Jersev (2000) 530 U.S. 466 .............................................. 308, 3 13 Arlington Heights v . Metropolitan Housing Development C'orp . (1 977) 429 ............................................................................................................ U.S. 252 64 Ayers v . Belmontes (2006) 549 I1.S. 7 .................................................................. 282 Bashor v . Risley (9th Cir . 1984) 730 F.3d 1228 ................................................... 142 Batson v . Kentucky ( 1 986) 476 U.S. 79 ................................................................. 65 Beck v . Alabama (1980) 447 U.S. 625 ........................................ 142, 210, 21 1, 309 Blakely v . Washington (2004) 542 U.S. 296 ........................................................ 313 Blystone v . Pennsylvania ( 1990) 494 U.S. 299 ................................................... 290 ................................................... Bonin v . Calderon (9th Cir . 1995) 59 F.3d 815 302 Boyde v . California. supra. 494 U.S. at 374 ................................................ 226, 28 1 Brown v . Payton (2005) 544 U.S. 133 ................................................................. 282 Bruton v . United States ( 1968) 39 1 U.S. 123 ............................ 3, 107. 1 19, 120, 163 Bush v . Gore (2000) 53 1 U.S. 98 ......................................................................... 312 . ............................................... . Calduvll v Mississippi ( 1985) 472 U.S. 320 246 257 . California v Brown ( 1 987) 479 1J.S. 538 ............................................................ 308 Curella v . Calfornia ( 1989) 49 1 U.S. 263 .......................................................... 138 Clzamber.~ 11 . Bowersox (8th Cir . 1998) 157 F.3d 560 ........................................ 303 Cllan~bers v . Mississippi ( 1973) 4 10 1J.S. 284 ............................................. 178 . 225 C'lzapman v . Ca1;fornia ( 1967) 3 86 U.S. 1 8 ......................... 1 25. 142. 2 10. 2 16. 270 Conaway v . Polk (4th Cir . 2006) 453 F.3d 567 ...................................................... 82 C't-ane v . Kentucky ( 1986) 476 U.S. 683 .............................................................. 226 Crawford v . Washington (2004) 54 1 U.S. 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim . . . Cunningham v . California (2007) 127 S Ct 856 ........................................ 99 313 Darden v . Wainwright ( 1986) 477 U.S. 168 ........................................ 201, 2 13, 2 18 . Davis v . Waslzington (2006) 547 U.S. 1 1 16 ................................. 262 263, 265, 266 Delaware v . Van Arsdall ( 1986) 475 U.S. 673 .................................................... 125 Douglas v . Alabama ( 1965) 380 U.S. 4 1 5 ........................................................... 119 Duren v . Missouri (1 979) 439 U.S. 3 57 ................................................................. 57 ................................................................ Estelle v . McGuire ( 199 1) 502 U.S. 62 201 ..................................................................... Evitts v . Lucey (1985) 469 U.S. 387 303 . Fetterly v . Paskett (9th Cir 1993) 997 F.2d 1295 ................................................ 129 Ford v . Washington ( 1986) 477 U.S. 399 ............................................................ 309 ............................................................. Francis \., . Franklin ( 1985) 47 1 U.S. 307 214 . ............................................................. Furman v Georgia ( 1972) 408 U.S. 238 313 . . . . ..................................................... Gardner v Floridu ( 1 977) 430 IJ S 349 243 246 ...................................... . Getsy l J Mitchell (6th Cir. en harzc 2007) 495 F.3d 295 295 ............................................................... . Gilmore v Ta/, was Edora's husband. (5 K'I' 1196.) Juan Ramirez. who testified, was Deanna's husband. (6 RT 1467. 1477.) 7 - "AC71"' refers to the Augmented Clerk's 'I'ranscript. It includes transcripts of tape recorded interviews entered as exhibits. C'armina G a r ~ a is also appellant's stepdaughter (2 ACT 394). She identified her- self-as appellant's daughter. a sibling of' Little Pcte. Deanna Ramirez. and Edora Avila. ( 7 KT 1789.) Carmina's boylriend. nhom she planned or hoped to marry, was Sanjeevider Singh. also known as "Romi." (7 R1 1840.) Christina Bowles. a defense witness. also identified herself as appellant's step- daughter because he raised her. (8 R'I 2095.) Angela Chapa is the girlfi-iend of Little Pete, and the lnothcr of two s~nall children by him. (4 R'I' 1 1 14.) According to Ms. Chapa. prior to this offense Little Pete. his cou- sin Jesse Rangel. and Richard Diaz Mere all friends. (4 R'l' 1123.) Frank Rangel, Sr. ("Big Frank"). is appellant's brother; his son Frank Rangel, Jr.. ("Little Frank") is appellant's nephew. (7 R? 1635.) Jesse Rangel is appellant's nephcw bq another of appellant's brothers, thus he is a cousin of Little Pete. (4 RT 1080.) llis wife is Erica Rangel. (6 RT 1586.) His mother is Deanna Salas. (7 R'l' 1734.) Richard Diaz was a friend of Big Pete and Little Pete; he had known them for six or seven years at the time of his testimony. ( 5 RT 1259.) A relative of Richard Diaz. Martha Melgoza. was the girlfriend of Juan Uribe. one of the named victims in this case. ( 4 R T 1004.) According to the prosecution case. the e\ents which led to the murders began with a baptism part! on September 24. 1995. held at the Women's Center in Madera. The par- t~ \+as hosted by Michael 1.lores. Michael 1:lores' wife is Natalie Candia: she is related to Jesse Candia. Jr.. who was at the part>,. ( 4 RT 1007.) Michael llores and Richard Diaz arc cousins. (5 KT 1292.) Martha Melgoza was at the party with Juan Uribe. Little Pete was at the party with 'I'ino Alvarez and Richard Diaz. In Ms. Melgoza's opinion, Little Pete and Juan Uribe were good friends up to the time of the party. (4 R?' 1006. 10 12, 1036.) I Iowever. Little Pete did not get along with another person at the party, David Va- rela (4 R'I' 1007). and unfortunately Varela was a good friend of Juan Uribe. (4 RT 1065.) Varela testified that he saw Little Pete approach Varela's younger friend Abraham Sala- zar. and an argument ensued. When Varela got involved Little Pete became angry and said. "You know who I am?" He wanted to fight Varela. Varela's uncle Jesse Candia ("Big Jesse") broke it up. Varela backed off when he saw a revolver stuck in Little Pete's waistband. (4 RT 1025, 1038.) Another individual, Carlos Rolnero (since deceased). socked Little Pete in the face. Little Pete turned to Juan Uribe. who had been standing out of the fray with Martha Melgoza, and said. "what's up." Juan shook his head, and declined to get involved. At that point Big Jesse told Little Pete to leave the party. (4 RT 10 1 1 - 10 12.) As he left, Lit- tle Pete said, "Juan, why didn't you back me up?" Uribe replied, "It was none of my business." (4 RT 1042.) Richard Diaz had left the baptism party earlier in the evening. and went to his girlfriend's house. Little Pete came by about 7:45 p.m., and said that someone at the par- ty had socked him. They drove back to the party in Little Pete's RMW. Diaz had been carrying his .38 earlier in the evening. but he claimed that he was not carrying it with him at this point. When thcy arrived at the Womcn's Center. ever)one ran around and shut the doors. 1-hej drove b j slo\vl~. then 1~11. ( 5 K'I' 1295- 1297: 3 RI' 1013 [Martha Mel- goza]; 4 R I' 1042 [David Varela].) Little Pete drove D i a ~ back to his girlfi-iend's house to recover Diaz' car. 'They were driving both cars back to Iliaz' house when they spotted Juan Uribe and Martha Melgoza on a dead end street off Yosemite. Little Pete cut hiin off, then got out of his car with 1 ino Alkarcz. I > i a ~ understood that Little Pete wanted to get even with Juan CJribe because Uribe didn't back him up. ( 5 KT 1298.) At this point Diaz' gun was un- derneath the seat of his car. but he claimed that he did not take it out. (5 RT 1299.) Martha Melgoza observed the ensuing confrontation from Uribe's car. She saw Little Pete and Tino Alvarez walk toward them. and saw Diaz behind them in the driver's seat of another car. (4 RT 1014- 10 15.) She saw Diaz holding a gun, tapping it on the front passenger seat: in a prior statement she said that his hand was outside the car, hold- ing a gun. (4 RT 1028. 1030.) 'I'ino Alvarez asked Juan. "Why did jou hit him." Juan replied that he did not hit Little Pete: then Fino punched Juan. and they all walked away. (4 RT 1027; 5 RT 1320 [Richard Diaz].) From the location of this confrontation off Yosernite, Juan drove Martha Melgoza to Chris Castaneda's house. He dropped her offthere. then hc and Castaneda drove away in a brown prirnered Monte Carlo. (4 RT 1028. 103 1 .) According to Richard Diaz, he and 1,ittle Pete drove their cars from the scene of thc confrontation of ' Yosemite. back to D i a ~ ' girlfriend's house to return his car. (5 RT 1320.)' Alier dropping off' Lliaz' car. all thrce (1,ittle Pete. 'l'ino Alvarez. and Richard Diaz) were in Little Pete's BMW. They ran into Juan Uribe again; this time he had three or four cars with him. Shots were tired. Little Pete was hit in the head. and was taken to the hospital. Iliaz did not see who tired the shots. (5 RT 132 1. 1360.) This incident was also witnessed by David Varela. Varela left the baptism party at 1 1 :30 p.m. with Abraham Salazar. As they approached Grove Street, Varela saw Juan Uribe standing on the curb with a group of people. I-Ie saw a BMW making a U-turn. Little Pete was the driver. and Richard Diaz was the passenger. (4 RT 1046.)' As Varela drove south on Grove Street, he heard four gunshots from the passenger side of the BMW. As Varela turned on Maple Street he heard three more gunshots, then more gunshots. Little Pete's HMW was behind him. He saw muzzle flashes as he turned right on Pine to Yoseinite. The BMW continued further down. to "0" Street. When Va- rela turned left on Olive the BMW wound up in front of them. It turned on Stadium, and Varela didn't see it again. (4 RT 1047- 1052.) 7 This was on cross-examination. On direct examination Diaz testified that they had been driving away fiom his girlfriend's house. to return his car to his aunt's house. (5 RT 1298.) J At the preliminary hearing Varela testified that hc saw other "people" in the car with Little Pete. In a prior statement to an investigator he suggested that one of them was big like Tino Alvarez. (4 RT 1057, 1060.) Shortlq alier midnight on Scptembcr 25. 1995. police ofliccr John Markle was dispatched to the Madcra Cornmunit) ~ o s ~ i t a l . ' There he observed Little Pete. with a gunshot wound to the head. l 'he laceration was livc or six inches in length. about one- half inch wide. from near the left tclnple diagonallq to the right eye. The skull was al- most exposed. The oflicer examined the victim's car. There was a bullet hole in the driver's side door. another in the windshield. and another just below the tail light by the bumper. 1-here were blood splatters all over the interior of the driver's side door. (4 RT 1067- 1069.) Richard D i a ~ was questioned at the hospital. He said that he did not know who was in the other car. He later tcstitied that he did know some of the people in the other car. including Juan Uribe. but he did not give that information to police. Diaz understood that they were shot at because of the earlier confiontation between Juan Uribe and Tino Alvarez. Little Pete. and himself. (5 RT 1323.) According to a later statement by appellant to police, appellant received a phone call and rushed to the hospital. where he found his son in-jured and his BMW shot up. (2 ACT 398.) He was told that his son came within a fraction of an inch of losing his life. Appellant came to understand that Jesse Candia. Sr. was responsible. (2 ACT 401-402.) Hc felt that his son might know who shot him, but he did not tell appellant. (2 ACT 405.) 5 Markle put the date at September 34. 1995. however David Varela placed the baptism part), on thc night of September 24. 1995. (4 RT 1035.) If that date was correct. then the contact at the hospital was on the early morning of September 25, 1995. 'l'hcrc u a s retaliation for the shooting ofI>ittlc Pcte. On September 25. 1995. Lit- tle Pete's cousin Jesse Rangel received a phone call fi-om another cousin, informing him that Little Pete had been shot the night before. He testified that he went to Little Pete's apartlnent in E'resno. Also prcsent were appellant. appellant's wile Mary. Little Pete. a relative of Mary named Ilamian Allatorc. and Tino Alvarez. The whole family, including Jesse Kangel. were angry about the shooting. (4 K'I' 1080- 1082.) 'I'hat evening Jesse Rangel lei1 with 'l'ino Alvarez and Damian. They picked up Tino's cousin, "Bingo." 'I'hey went to another friend's house where they drank. All of them were angry, and a joint decision was made to retaliate. According to Jesse Rangel. they only wanted to shoot up Juan Uribe's car. so they drove to Uribe's house. Jesse Rangel was armed with a 9mm at this point. (4 RT 1083.) Based on what Tino Alvarez said about the prior incident. Jesse Rangel believed that it was Juan Uribe who had shot Little Pete. (4 RrT 1098.)" Juan Uribe, like Little Pete. owned a BMW. They drove slowly past Uribe's house and the unoccupied BMW which was parked in front. Jesse Range1 was driving. though he was drunk. 'Fino was in the front seat. Bingo and Damian were in the back. As Jesse slowed the car, Tino pulled out a gun (not the 9mm) and shot at the BMW a couple of times. Jesse grabbed Tino's gun and did the same, then they drove off. Jesse did not claim that he used his own 91nm in this incident. ( 4 R'I' 1086. 1 100.) (1 The trial court instructed the jury that this statement by Tino to Jesse could be considered only for state of mind. and not lor its truth. (4 RT 1097.) According to Richard Ilia/. he had a conliontation \bith Juan [Jribe at a market shortly after Ilribe's car \\as shot up. llribe thought that Dia/ \bas responsible for shoot- ing up his car. Diaz denied it. but Chris C'astaneda. who was \sith Uribe, hit him. Diaz claimed that he was surprised but not upset. Iliaz' father-in-la\\ intervened, and said that Iliaz was with him all daj the da j before. Diaz had a further conversation with Uribe then, l > i a ~ claimed. he was not mad at [Jribc anymore. and no longer wanted to retaliate for the shooting of Little Pete; "We squashed it." ( 5 RT 1340- 1342.) On the evening of October 7. 1995. a barbecue was held at appellant's house at 1034 Wessmith in Madera. Present at dif'ferent times were Carlnina Garza and Rorni (San-jeevider Singh). appellant and his wife Mary, their son Little Pete and his girlfriend Angela Chapa. Mary's sister Wanda and Roy. Rafael Avila, and Richard Diaz. (4 RT 1 1 15.5 RT 1260. 7 RT 1844.2 ACT 423.) At one point, Angela Chapa noticed that Big Pete was gone; this was about 8:30 p.m. (4 RT 1 12 1 .) According to Car~nina Garza, appellant, Little Pete. and Romi all left the barbecue about 9:30, and returned 1 % hours later. ( 7 K T 1805.) In contrast. Romi testified that he left the barbecue about 10:30, with Carmina; he denied that he left with Rig L Pete and Little Pete. He testified that the] went to a 7- 1 1 across the street fiom his own convenience store at Lake and Cleveland. They bought some sodas there (rather than at his own store), then returned to the house on Wessmith. He stayed there another 30 minutes. then went home. (7 RT 1844.) Richard I>iaz arrived at the barbecue at ten p.m. tIe was carrying a .38 revolver in his car. Yet. he claimed that following the altercation with Uribe at the market. he no longer was looking for retaliation. (5 RT 1343.) He testified at trial that he had drunk no more than one-half of a Corona beer bel'ore going to the barbecue. but at the preliminary hearing he testilied that he drank tho. ( 5 R1' 1359.) Diaz heard appellant talking about "his son getting shot in the head. about getting back whoever did it." According to D i a ~ . appellant named Juan Uribe, and said that he wanted to go looking for him. Appellant asked to borrow Rafael Avila's car. Rafael re- fused but said that he would drive because appellant was "too drunk." Appellant was drinking Presidente brandy. (5 RrI' 1262- 1264.) Diaz retrieved his .38 revolver from his car. and got in the rear passenger seat of Avila's car. He sau Little Pete get a .22 rifle out of appellant's truck, then Little Pete sat in the front passenger seat. Appellant sat in the back seat next to Diaz, and Rafael Avila drove. (5 RT 1265- 1266.) According to Diaz. they drove to Juan IJribe's house. When they did not find him there, appellant wanted to k n o ~ where Chris Castaneda lived. Avila continued driving, on Diaz' directions. (5 RT 1267.) Meanwhile, there was a small gathering of people at the home of Chuck and Cyn- thia Durbin. at 409 East Central Avenue in Madera. 'I'he neighborhood is in a low- income area near the Fresno River. (4 RT 922.) Mrs. Durbin worked at Chubby's that afternoon. and returned home at 2:30 to 3:00. Chuck was at home with their three child- rcn: Brett (age scken). Natasha (agc six). and Savanna (age three). Mrs. Durbin went shopping. L and they ate dinner at 7:00 to 7:30. ( 6 K'l' 1375.) She began washing and fold- ing clothes. Chuck uas working on the plumbing; the bathtub and toilet were clogged up. (6 R7' 1376.) Alvin Areizaga arrived at the house at 8:00. intending to work on the plumbing. Richard l~itzsimmons arrived about 8:30. Juan llribe arrived in between the two. then left and returned with a plumbing snake. Initially. .luan's girlfriend and her children were al- so present. but they left and did not return with him. The Inen finished working on the plumbing problem between 9:00 and 9:30, and came in to wash their hands. (5 RT 1169. 6 R'I'1377.) The subsequent home invasion and shootings were described in the testimonies of Cindy Durbin and Alvin Areizaga. r I he front door to the house was open. There was a security screen, which was closed but not locked. Alvin and Cindy were in the kitchen talking. when they heard gunshots from the front door. ( 5 R'f 1170. 6 RT 1378.) Alvin ran into the back room. From there he heard Chuck Durbin say, "Hey. what the F-u-c-k," then another series of four or five shots. ( 5 RT 1172.) After a short period of quiet, he heard footsteps. then another series of two or three shots. (5 K I ' 1 173.) Cindy Durbin stood up to check on the children. She turned. and saw two Inen who she did not recogni1.e. in the house near the front doorway. Both were Hispanic and dark. wcaring baseball caps. One u a s stockier and an inch or two taller than the other. and had a bush> moustache. (6 R'I' 1379.) Although she testified at trial that both had on darh clothes. at the preliminary hearing in Ju ly of 1996. she testified that one \frore a white shirt and dark pants. (6 R'l' 138 1 - 1382.) As Cindy stood there. the mcn each raised a gun and began shooting. One of the guns was a handgun. The other u a s 16 to 18 inches long. too short for a rifle but bigger L than a handgun. (6 R'T 1383.) She ran back into the kitchen. and asked her husband what was going on. 14e told her to hide. (6 RT 1386.) The Inen in the living room were screaming for Juan: "They were going to get him." Chuck ran into the living room, where the children were. Cindy screamed for the children to hide under their blankets. then she hid under a shelf by the trash can. Juan was standing in front of her. One or both of the intruders entered the kitchen and started shooting Juan. Someone said that Juan was a "traitor." His body Sell over her. (6 RT 1387-1388.) When the house became quiet she crawled out froin under Juan. She had a wound to the stomach. from left to right, and grazes to the legs. Screaming for her children, she found Brett and Natasha at the front door. Savanna was sitting on the floor next to her father. Chuck was still conscious, and raised his hands, but couldn't talk. (6 RT 1389. 1400.) Alvin came out and got towels to clean up. Chuck seemed to be choking. (5 RI' 1173.) C'indq took the children into the bedroom. and had Alvin call 91 1 . (6 RT 1390.) The gunlire dreu the attention of at least two neighbors. Delores Rivera (Cerva- cio) lived at 401 East Central, west of the victims' house and separated by an apartment building. At 10:OO p.m. on October 7th she was playing Scrabble with her adult daugh- ter. when they heard three gunshots. then shots from a larger gun. Looking out, she saw two incn "\ialking across thc strect." '-real close up against 111) neighbor's walls." This was suspicious because they could have walked ncst to the street. Both were Hispanic. One wore a baseball cap. the other had a hooded sweatshirt. pulled up. (4 R?' 1 104-1 105.) The distance of her observation \+as "tiom here to the door [of the courtroom]." Ms. Rivera knows appellant; they went to high school together. She does not know if one of'the people she saw on the strcet was him. She told an investigator that she would have recognized appellant. but in hcr testi~nony she added the caveat. "if the lights would have been on." (4 R'T 1 1 09.) Cindy Burciaga, at 417 North I3 Street. heard gunshots and screaming. Looking out her window she saw two people running up B Street. A sensor light went off on a corner house. (5 KT 1126.) Ms. Burciaga saw a little red car run a stop sign, turn south on B Street, then stop and back up, and sorneone. perhaps the running men, got in the car. (5 R?' 1127.) Ms. Rivera also saw a car which stopped and backed up. then made a U-turn and parked near where the two Inen were walking. They opened the door and got in. The in- terior light went on. She saw two other Inen in the car. The car left normally. as if there was no hurry. (4 RT 1105.) At 10: 14 p.m. on October 7. 1995. Police Corporal Brian ciapessoniX was dis- patched to 409 East Central in Madera. ( 4 R'l' 912.) On his arrival, hc found a car with , In a statement to police. she described the people she saw as "boys." At trial she explained that this description was meant to refer to their Inode of dress. (4 RT 1105.) the windshield broken out.' Ilc spoke briefly to Richard Fit~simmons. who was walking out ol'the residence. Inside. he Sound a deceased male with blood on his face. dressed in a tank top and shorts. lying on the floor of the living room. (4 KpI' 914.) In the kitchen he Sound Cindy Ilurbin, seated at a table and surrounded by three children. She had a bullet wound to thc stomach. Also in thc kitchen was a male identified as "Archie" (apparently this was Alvin Areizaga). A second deceased male was found head first in a trash can between the stove and the kitchen sink. (4 RT 9 15.) At 10:40 p.m. two officers. Bennie Munoz and Da~non Wasson, arrived and were assigned to crime scene investigation. They photographed the entire scene, placed crime scene markers. and marked and bagged evidence items. (4 RT 922. 949.) Oflicer Munoz testified on cross-examination that he collected three .380 shell casings from the scene. (4 RT 943.) This is inconsistent with his testimony on direct ex- amination, where he identified only one .380 shell casing, which he found in the living room. (Ex. 18. 4 RT 933. 941.)"' Officer Wasson collected another .380 shell casing, next to Durbin's body. (Ex. 14, 4 RT 955.) A .380 slug was Sound next to victim Durbin's head (Ex. 15). (4 RT 928.) Ciapessoni was ernployed as an investigator for the Department of Motor Vehicles at the time of his testimony. (7 RT 176 1 .) As a Madera police officer in 1995, he was as- signed to the investigation of these homicides. and was referred to as "detective" in that role. (7 KT 1762.) 0 No evidence was submitted as to whose car this was. or what caused the wind- shield to be broken out. A .32 slug and a bullet fragincnt \liere found underneath IJribe's body. (4 RT 946.) I I Fifteen .22 casings were found scattered around the house. Nine .22 casings were found in or near the kitchen. (Ex. 19-25. 30. 31: 4 RT 934-940.) Six .22 casings were found in the living rooin. (Ex. 10. 1 1 . 12 (on sofas). Ex. 13 (on floor between sofa and coffee table), and Ex. 16 and 17 (on floor next to victiin Durbin and under living root11 chair).) (4 KT 930. 93 1. 952-954.) A .38 slug was found on a blanket in front of the entertainment center in the living room. (Ex. 27. 4 RT 958.) Another .38 slug was found outside. in the gutter near a parked vehicle. (Ex. 29, 4 KT 959.) At the autopsies the following day. five bullets were collected from the body of Chuck Ilurbin, and three from the body of Juan Uribe. (4 RT 925 .) Rafael Avila's red 1989 Dodge Colt (Ex. 53) was taken to the impound yard of the state Department of Justice in Fresno on November 1. 1995. (8 RT 191 9.) Another .380 slug was found during the investigation of that vehicle. The slug was tracked on a path through the back of the front seat. and Sound in the floorboard. (7 RT 171 8.) Steven Avalos. M.D.. a pathologist from Fresno. conducted the autopsies at Jay Chapel in Madera. ( 4 RT 964.) 10 Efforts to settle or correct the record in this respect have been unsuccessful. I h e cri~ninalist was given two .380 casings collected from the crime scene (Ex. 14, 18). (7 RT 1703. 1712.) I I 'I'his number does not include 1's. 9. ~ v h i c l ~ u a s submitted to the crilninalist and is listed on the exhibit list as a .32 casing. recovered by Officer Munoz (but was not identi- fied in his testimony). The crilninalist examined sixteen .22 casings. including Ex. 9. The body of Chuck llurbin discloscd seven distinct gunshot entrance wounds. Because of the aspiration of' blood the sinaller wounds to the trunk probably preceeded the larger wounds to the head. (4 K'I' 976.) I'hc cause of death was gunshot mounds to the head and trunk. The smaller cali- ber bullets caused bleeding into the lungs and aspiration of blood. The head wound would have quickly ended respiration. (4 RT 975.) 'The bullet tracks permit the inference of Inany possible positions for the shooter and the victim. The victim could have been facing the floor when he was shot. but this was not a necessary conclusion. (4 RT 997, 1003 .) 'l'he body of' Juan IJribe disclosed six distinct gunshot entrance wounds. All were small caliber. The cause of death was gunshot wounds to the head and chest. (4 RT 986.) Conflicting reports were made shortly after the murders. Carmina Garza testified that she had a conversation with Little Pete on October 8. 1995. He told her that "these guys" had shot him. He asked her to check the security tapes at Singh's convenience store, because "they're trying to blame him for it." (7 RT 18 15.) Jesse Candia visited Cindy Durbin at her parents' house (she apparently had been discharged from the hospital after receiving treatment for her gunshot wound). This was either the daq after the shooting. or a couple of days later. I-Ie was accompanied by his wife and daughter. and perhaps by Juan Uribe's girlfriend. Martha Melgoza. He showed her an array of four photographs, and told her that "these were the people that had killed Chuck and Juan." She picked out a photograph of Jesse Rangel and identified him as one of the shooters. ( 1 : ~ . 52: 6 RI' 1395- 1397. 14 13- 14 19. 1427: see 8 RT 1947.) Ms. Durbin was interviewed by Detective Fabian Benabente on October 10. 1995. (6 R1' 1483.) She gave another statctnent to Officer Ciapessoni. about two weeks after the shooting. She continued to idcntif3 Jesse Rangel as one of the shooters. (Ex. 57; 6 RT 1397. 1437.) E:dora Avila is the step-daughter of appellant. IIer husband was Rafael Avila. On the evening of October 7. 1995. Ms. Avila went to a church revival with Brother Teodo- ro. in a church van. As they returned to Madera late in the evening. she saw Rafael's car "flying by"; she could not tell who was in it. She also saw Romi, driving his Mercedes. There were traffic cones at Central. (5 R'I' 1 197-1 199.) When she arrived at her home Rafael was not there. The closet was a mess; it looked like he had been trying to find something to wear. Edora went to her parents' house at 1034 Wessmith to check on one of her children. Returning to her home, she found that Rafael was still not there. but he arrived some time later. He banged on the door "like a cop." He was acting nervous. pulling his hair. His pants were wet to the knees." I-le went to the closet. pulled off his pants and shirt. and threw them in the gar- bage. ( 5 RT 1200-1 204.) 'I'hey \vent to bed. then 1,ittlc Pete catne to the door. Rafael got up, and he and Little Pete argued. Ratacl left the house. She has not seen him since. except for one 12 The Ilurbin house is close to the Fresno River. brief contact. (5 RT' 1205-1207.) Rafael's employer testified that he was scheduled to work all days fkoin October 7 to 15. He called in sick on the 9th and the I lth. On the 15th he was granted a leave of absence. to return on the 23rd. but he never returned. (6 R1' 1450- 1452.) In October of 1995 appellant's stepdaughter Deanna Ramirez was separated from her husband Juan Ramirez. She was living in her house on Martin Street. Juan came to visit her on an evening in October. They were watching television when appellant came to the house. (6 RT 1467. 1477- 1478.) Deanna was estranged from her family at the time, but appellant spoke to Juan. He told Juan that "they had resolved their problem." He gave Juan a basket containing clothing and bags. and asked Juan to throw it away. Juan testified that when he looked in the bags. he found two guns. Juan later went to the employment office to see about a check, and carried the basket with him. He intended to throw the contents in the San Joaquin River, but there were people there. Instead, he threw the contents in a canal near a vineyard, and later returned the basket to Deanna's house. (6 RT 1470-1472.) On November 5. 1995, Officers Ciapessoni and Benabente interviewed Juan Ra- ~nirez at the Madera Police Department. (7 Rrl' 1762.) He took them to an irrigation canal at the end of Ashlan Avenue near Biola. The canal was dry. Benabente retrieved two guns froin the canal bed: a .380 handgun and a .22 rifle. (7 RT 1264, 8 RT 19 18.) A criminalist froin the California Department of Justice test fired the .22 rifle. She co~npared the casing ejection markings with the markings of sixteen casings found at the criinu sccne 9. 10. 1 1. 12. 13. 16. 17. 19. 20. 2 1 . 22. 23. 24, 25. 30. and 3 1 ) . (7 R'I' 1705.)" I'he sixteen casings were a11 elected from the .22 rille. Ex. 67. (7 RT 1710.) The .22 slugs rccovercd from the bodies (five from victim Durbin. three froin vic- tim IJribe) could not be positive1 linked to the recovcrcd rifle. 'l'he 16 spirals on the slugs were unusual and consistent with thc recovered rille. but not unique. (7 RT 1701. 17 1 1 .) The .22 bullet and bullct tragment lound underneath victim Uribe (Ex. 26 and 28) were also consistent with the recovered gun. but could not be positively linked to it. (7 R-1' 1 722.)14 'I'he criminalist was provided with two .380 shell casings (Ex. 14, 18) and one .380 slug found at the criine scene near victim Durbin's head (Ex. 15). (7 RT 1703.) She also examined a .380 slug which she recovered f'rom under the front seat of Rafael Avila's car. (7 RT 171 8.) She determined that the slugs were fired froin the same gun. They were probably fired from the .380 handgun found in the canal. but the identification was not positive. (7 RT 17 12, 17 15.)" This is one more than the number of .22 casings reported in the testimony of the criine scene officers. They did not testify to the recovery of Ex. 9. (See footnote 10 above.) 'I The criininalist stated that these bullets were recovered from under the body of victim Durbin. but she apparently misspoke. since the crime scene investigator testified that they were recovered from under the body ofvictim IJribe. (4 R?' 946.) IS The crirninalist's testimony does not retlect a comparison of the .380 casings fiom the criine scene. with each other or with the .380 handgun - found in the canal near Riola - which she test tired. 'I'he criminalist \%as provided with a box containing a .38 Rossi revolver (Ex. 50 [box]: Ex. 5 1 [revolver]). (7 RT 1702.)'" This gun was test fired and the slugs were com- pared with two slugs recovered from the crime scene (Ex. 27 [bullet found on blanket in victiin's house] and 29 [bullet found in gutter outside victims' house]). A positive match was found between both .38 slugs and the suspect revolver. (7 RT 17 19.)'' 'The cri~ninalist concluded that the tibers recovered from the neck wound of Chuck Durbin were too long to be carpet fibers. They could be stuffing from a jacket. but no positive identification was attempted. (7 R1' 172 1 .) Jerry Smith is the "thenno processing supervisor" at FMC in Madera. He super- vised appellant for about one year. Mr. Smith was aware of the homicides on Saturday, October 7. 1995. Appellant missed work on Monday the 9th." Smith contacted appel- lant's wife. and spoke to appellant on the phone one week after his last day at work. Ap- pellant requested an open-ended leave of absence. (In a prior statement to police, Smith said that appellant requested a one-year leave of absence "because of personal family I h The revolver was recovered froin the backyard of a house in Fresno. (7 RT 1684: see description below.) 17 The record is confused with respect to these exhibit numbers. The criminalist tes- tified that Ex. 25 was the bullet found in the gutter. (7 RT 1718.) However, Ex. 25 is a .22 casing found in the kitchen. (4 RT 939.) It is likely that the District Attorney who posed the question misspoke. and meant to say Exhibit 29. I X Ilespite this testimony. the partics stipulated that appellant worked eight hours on October 9th. (6 R'I' 1465.) problems.") He never caine back to ~vorh. and Lvas subsequently terminated by FMC. (6 RT 1454- 1458. 1464.) Richard ilia^ \bas arrested in Deceiilber of 1995. lle was placed in the saine jail lnodule with the Rangels (appellant and Little Pete). 'I'hey both said that they didn't do it. that someone else did it. ( 5 R'I 1285.)'" In going over the police reports while in custody. I>iaz learned that Carlnina Garza and Jesse Rangel were both accusing hiin of the inur- ders. ( 5 R?' 136 1 .) Iliaz did not give a statement to police initially because. he claimed, he was afraid o f Little Pete and Big Pete. I3owever. he also said that Carmina told him about an alibi videotape. She said that Diaz was cut out of it. "and I was going to go down for it along with .lesse and Juan.. .." ( 5 RT 1329.)'(' He told Ciapessoni. '.That is what I feel like they're going to try to make lne go down lkr this. that's why I'm willing to do whatever you guys want me to do." ( 5 R T 133 1 .) In January of 1996 Diaz gave a statement to Officer Ciapessoni. By that point he had read the police reports and knew the prosecution theory of the case. He was released iinlnediately after giving his statement. ( 5 RT 1326- 1328.) 1 0 In light of Diaz- testimony that he was with the defendants when the critnes oc- curred. it is unclear why they cvould tell hiln that they were not responsible. '(' This quote presumably refers to appellant's nephew Jesse Rangel. and perhaps to Juan Ramirez. appellant's son-in-lam. who played an accessory role in disposing of the weapons. llnder his agreement with the prosecution. Ilia1 pled guilt) to accessory. A copy of thc plea agreement was entered into evidence (EN. 49). (5 K'l' 1285-1286.) According to Diaz' testirnonj at the preliminary hearing. he was hoping for probation as a result of his testimony. but he had not yet been sentenced at the time of his testimony at trial. (5 R'I' 1326. 1336.) Under the version of events presented under Diaz' plea agreement. after leaving the barbecue at the Wessmith house. they drove to Juan Ilribe's house, but did not see his car there. Appellant wanted to know where Chris Castaneda lived. Diaz directed Rafael Avila, who was driving, to Central, then towards Gateway. but by happenstance they saw Ilribe's car parked across the street from the Durbin house on East Central. Diaz testified that he did not know the Durbins. (5 RT 1267-1268; see summary at page 14 above.) They drove past the Durbin house and turned on to a side street. Little Pete told Rafael to stop, and Little Pete got out carrying the .22 rifle. Diaz and appellant also got out. Appellant was carrying a .380 automatic handgun that Little Pete had been holding earlier. (5 RT 127 1 .) As Avila drove away, Little Pete ran straight to the Durbin house. Diaz walked across the street and stood next to a telephone pole. Appellant followed, but Diaz had to help him because he tripped and fell. As he got up, appellant asked where Little Pete was, then ran toward the Durbin house. (5 RT 1269- 1270.) Diaz claimed to be close enough to see Little Pete and Big Pete enter the house. however hc claimed that he remained outside. Little Pete opened the screen door and walked in. Diaz heard Little Pete ask for Juan IJribe. and saw people running around in the house. (5 RT 1272.) Iliaz saw a person he assumed to bc Chuck Durbin (he did not know Durbin) run through the living roorn. He saw appellant grab Durbin. put the gun to his chest. and shoot him. I > i a ~ acknowledged that he had never told an interviewer that he saw appel- lant shoot Durbin. and his testimony u a s the first time he made that claim. ( 5 R?' 1273. 1348.) After those shots. D i a ~ . who was still standing in fi-ont of the Durbin house. tired twice at the house. He saw s~nall shadows running around in the front room. He claimed that he fired seven feet high, "[jlust to get them out of the house." ( 5 RT 1274.) Big Pete ran from the house. followed by Little Pete. Rafael was driving by, and Diaz stopped hirn near the corner. (5 RT 1276.) As they drove off. 1,ittle Pete said that "he had got Juan Uribe," and thought that he had killed him. ( 5 RT 1277.) Appellant said that "he shot that guy because he thought he was running to get a gun." As appellant was trying to unload his gun it went off twice, into the tloor of the car. (5 RT 1278.) Diaz identified a photograph of Rafael Avila's .380 (Ex. 53). ( 5 RT 129 1 .) They drove back to the Wessmith house. Little Pete said that Diaz did not see him that night. and Diaz agreed. Diaz also had a conversation with Rolni and Tino Alvarez. Ile then got in his car and left. ( 5 KT 1280- 1283.) Diaz was with Little Pete again about five days later: R a n i and appellant were al- so present. Little Pete talked about his alibi. He said that they made a video to shou them working at the 7- 1 1 the night ol'the shooting. ( 5 R'I' 1283- 1284.) Diaz idcntiiicd a gun ~ h i c h he lirst testified was identical to his .38. and which had been linked to the crime scene by the testimony of the criminalist (Ex. 51). (5 RFI' 1290.) I lowevcr, on cross-examination he testified that Exhibit 5 1 was not his gun, that his had a longer barrel. (5 R?' 135 1 .) Diaz could not say why he did not get rid of his gun irninediately after the shooting. He first said that he did not think he had done anything wrong. He then switched his testimony. and testified that he felt that he did do something wrong. (5 R?' 1354. 1357.) At the time of the shootings. Jesse Rangel lived in Fresno with his wife Erica and their four children. Appellant is his uncle, but Jesse looked to appellant as a father tigure for most of his life: Little Pete was more of a brother to him. (6 RT 1488.) Jesse claimed that he was invited to the barbecue on October 7, 1995, but did not go. He remained in Fresno that day and evening. and did not go to Madera. (6 RT 1489.) He denied any in- volvernent in the shootings. (6 RT 1556.) That evening Jesse borrowed his mother's car and used it to do grocery shopping with Erica and the kids at Foodland near his house in Fresno. After shopping, he returned the car to his rnothcr. (6 RT 1490.) Jesse's wife Erica testified that they lived in an upstairs apartment on Fairmont Street in Fresno. (6 RT 1586.) On October 7. 1995, at 8:30 p.m.. Jesse walked to his mother's house to borrow her car. (6 RT 1604.) At about 9 9 0 p.m., they went shopping at Foodland. They shopped until close to closing time; the store announcer warned that the store kvas closing. (6 K'I 1587-1 588.) T h e returned home and unloaded the groce- rics. Jesse returned his noth her's car and walked homc. (6 IIT 1589.) Jesse's inother Diane Salas lived one block l i o~n Jesse and his wife. She testified that on October 7. 1995, Jcsse came by with 1:rica and the kids to borrow her car. He re- turned alone later that evening. and stayed about one-half hour talking. Ms. Salas' fiance was there both times Jesse came by. (7 RT 1734- 1735.) Later that evening. according to Jesse. he received a call from Little Pete, who said that he "got Juan." Jesse told Erica what was going on. (6 R'I' 1491. 1590, 1602.) Jesse went to sleep. Later that evening he got a call from Little Pete. Little Pete was drunk and laughing, and said that "he had killed Juan." Little Pete said that he, Big Pete, Richard, and Rafael were involved. In the same phone call Jesse spoke to appellant. who said that he "put those motherfuckers on ice." (6 RT 1492.) Jesse claimed that he was "shocked" by appellant's "on ice" statement; he had never heard violence on appel- lant's part in the past. (6 RT 1525.) On cross-examination he admitted that he failed to mention appellant's "on ice" statement during his interview by police. (6 RT 1535.) Erica's Sather called Jesse and told hiin that they thought that Jesse had done it, and "for me to hatch in) back." (6 R 1 1494.)" Although Jesse denied that he thought that he was a suspect. he admitted that he did not go to the police lbr protection. (6 RT 153 1 .) " The comment of Jesse's father-in-law was introduced only for Jesse's state of mind. and not for the truth ofthe matter stated. According to stipulation. appellant worked eight hours at FMC on Monday. Octo- ber 9. 1995. and did not come to work thereafter. (6 Rl' 1465.) l'he day after the shooting Jesse called 1,ittle Pete at the Wessmith house. Jesse said that he had been getting threats. that people thought that he was the one who killed Juan Uribe. Little Pete hung up and called Jesse back. Jesse accused Little Pete of caus- ing everyone to think that he was responsible. and told 1,ittle Pete to pick him up in Fres- no. (6 K'I' 1495.) After about an hour Rafael Avila picked up Jesse and Erica and the kids and drove them to the Wesstnith house in Madera. Big Pete was acting "paranoid" because of strange cars driving by the house. He took Jesse to pick Little Pete up from work at Ob- erti's Olives, then to Little Pete's apartment. From there the three drove to the house of appellant's brother, Frank Rangel ("Big Frank") in Fresno. (6 RT 1496-1498.) Erica also arrived at Big Frank's house, but soon went to "Dora's" house, where she stayed for a few days. (6 RT 1593.) Appellant's brother Frank lived at 633 West Fountain Way in Fresno. Frank's son Frank Jr. (or "Little Frank") lived there in October of 1995. (7 RT 1635.) Big Frank had had three or four visits from appellant in the previous two or three years. He had not seen his nephem Jesse in years. (7 RT 1636.) They arrived late in the afternoon. Frank did not have enough room in the house. so he pitched a tent in the backyard. They stayed in the backyard two nights. According to Big Frank. appellant told him that "somebody was after his son." He said that Little Pete had been shot at and in.jured several \leeks earlier. He said that he needed a place to stay "to get his senses together." and decide what to do. (7 RT 1638.) Appellant did not say that hc uas responsible fbr the shootings. ( 7 KT 1642.) Frank Rangel. Jr.. testified that he was surprised when appellant, Little Pete, and Jesse arrived at their house. At some point appellant said that people from Madera wanted to kill Little Pete. "so he was running, hiding my cousin." (7 RT 1646.) Frank Jr. had been injured in a work accident the previous June. He was taking pain medication including Naproxen and Vicodin, and Dilantin for seizures. At the time of appellant's visit he was also binge drinking and abusing methamphetamine. His girlfriend helps to take care of him. (7 RT 1672-1675, 1678.) He was never sure of what appellant told him during the visit. (7 RT 1675.) He was later threatened with prosecu- tion as an accessory. (7 RT 1680.) Over a denial by Frank Jr. (and objection by defense counsel) the prosecutor read into the record a report by Investigator Benabente. that appellant told Frank Jr. that they "retaliated," and "[tlhey went to this house and started shooting." (7 RT 1650.) Accord- ing to the Renabente report. "They went to this house and started shooting," and "they retaliated. they went to this house and they fucken shot the house up." He did not say that any person was shot. (7 RT 1654: Ex. 88 at 2 ACT 385-386.) At some point in their stay. appellant handed Little Frank a handgun, and said "hold this for me." (7 R'I' 1655.) According to Jesse Rangel. appellant told Big Frank that "him and little Pete had ~ , e n t and done a shooting." However. pcople on the street were blaming Jesse for it. so he could not be alone. Jesse slept that night in a tent in Frank's backyard. (6 RT 1499- 1500.) Jesse Range1 claimed that during their stay at Big Frank's, Little Pete provided more details. Whcn Rafael dropped him off: Little Pete went to the victims' house. opened the door. and went in looking for Juan. In the account repeated in Jesse's testi- mony. Richard stayed outside. However, in his statement to Officer Ciapessoni, and in his testimony at the preliminary hearing. Jesse claimed that Little Pete said that all three went in the house. (6 R T 1548, 1549.) In the statement attributed to Little Pete, Little Pete found Juan Uribe and shot him. Chuck Durbin came out "from the side." and appellant, who had stayed by the front door, "shot him in the head." Juan was wounded and ran to the kitchen, where Little Pete ':just unloaded the rest of his bullets on him." (6 RT 150 1 .) In this account. Little Pete had a .22 rifle, appellant had a .380, and Richard Diaz had a .38. (6 RT 1501.) Little Pete said that appellant gave the guns to Little Pete's sis- ter's husband, to ditch them. (6 R'F 1502.) Little Pete said that they burned their clothing in a pit in the backyard. (6 R'T 1 53 8.) 1,ittlc Frank testified that hc kept the gun given to him by appellant in the house. Eventually hc put it outside. (7 R'T 1668.) (In a prior statement to Benabente on October 14. 1995. Little Frank said that he saw appellant hiding a gun in tires in the backyard. ( 7 RT 1671 .)) When Big Frank determined that his son had a gun. he had him report it. (7 R.1' 1640.) In l>ccember of 1995. Renabcnte went to Frank Kangel's house. Frank Jr. pointed to a pile of tires, whcre Henabente retrieved a white bag containing a .38 revolver (Ex. 5 1 ). (7 RT 1684.) From Frank's house. appellant. his son. and Jesse n~oved to a series of motels. (6 R1' 15 17, 1593- 1594.) Motel receipts indicated that "Pete Rangel" stayed at the Econo- m y Inn on Shaw Avenue from October 13 to October 16. 1995 (Ex. 69). (7 RT 1758.) "Pete Rangel Jr." stayed at the Days Inn on North Parkway in Fresno from October 15 to October 17. 1995 (EN. 87). (8 RT 19 19.) "Pete Rangel" stayed at the Days Inn from Oc- tober 20 to October 2 1 , 1995 (Ex. 87). (Sec also Ex. 83: Starlight Inn.) (1 1 CT 2375.) Jesse Rangel testified that, afier several days sleeping in a tent in Big Frank's backyard, he, Little Pete, and Big Pete went to a motel off Jensen in Fresno, where they stayed one day. From there they split up. Appellant's wife Mary took Jesse to the Star- light Motel off Highway 99. Jesse stayed with Erica and the kids; Mary had her own room. Mary told Jesse that he need to leave town, and cut his hair and shave his mous- tache. (6 RT 15 17 .) Erica testified that she moved from Dora's to the Starlight Inn Motel. After a couple of days Erica and Jessc moved to a white motel on Jensen, while the children stayed at the Starlight with Mary's relatives Yolanda and Roy. (6 RT 1593- 1594.)" - - - " Jesse did not describe a s t a with Erica at motel on Jensen, following the stay at the Starlight. Erica described a statement made by appellant's wife Mary at the Starlight Inn. and attributed lo appellant as an adoptive admission. Erica testified that she visited a room at the Starlight where appellant and Little Pete were staying. Jesse was also present. seated on the bed next to appellant. ( 6 RT 1610.)" Mary said to appellant. "You're a murderer. And now my son is one. too." Erica did not hear any response from appellant. (6 RT 1595.) Jesse testified that he went to his mother's house for one day. Mary provided him with a couple hundred dollars and her car.*' Jesse drove with his family to Santa Maria to pick up Erica's cousin Humberto. (6 RT 1504- 1505. 15 18.) From Santa Maria they drove to New Mexico. They stayed in a motel for a few days, then with Humberto's girlfriend. (6 RT 1 5 19.) During that stay Erica spoke to her father, then to Officer Ciapessoni. (6 RT 1598.) She put Ciapessoni on the phone with Jesse. Ciapessoni said they could work something out. Ciapessoni said that Jesse was a "tool," and that Jesse could help himself. At the preliminary hearing Jesse testified that Ciapessoni told him that he was trying to get him "out of this mess." (6 RT 153 1, 1547, 1552.) Jesse told Ciapessoni that Little Pete, Big Pete, Rafael. and Richard were involved. Then Jesse was arrested by Investiga- This account does not appear in the testimony of Jesse Range1 himself. 2 4 The trial court instructed the jury. following a defense objection, that evidence of Mary's arrangements for Jesse Rangel's flight from Madera was introduced for a non- hearsay purpose. the state of mind of Jesse Rangel. (6 RT 15 17.) tor Benabcnte. \I ho arrived at the door \I ith Nc\v Mexico police. ( 6 RT 1520. 1598 [tes- timonj of I'rica].) As soon as Jesse told authorities that he wanted to "clear his name." Madera County paid for airline tickets. and he and his family flew back to California. ( 6 R1' 1550.) According to Jesse Rangel's testimony. during the stay in Frank's backyard Little Pete said that he and appellant made a videotape for an alibi. Romi was supposed to switch the dates on the videotape so it looked like they were mopping up Romi's store at the time of the shooting. ( 6 RT 1503.) Robert Williams testified that as of October, 1995, he had worked at Romi Singh's Express Mini Mart at Lake and Cleveland in Madera for 1 YZ years. (7 RT 1739.) Wil- liams worked seven days a week, from 3 p.m. to l l p.m. on weekdays, and from 3 p.m. to 1 :00 or 1.45 on Fridays and Saturdays. (7 RT 1740.) Williams commonly restocked the cooler and ice machine and mopped the floor at closing. Carmina Garza often worked with him, and Ro~n i would occasionally help him. Big Pete and Little Pete occasionally came in to buy something, but they never helped him work. (7 RT 1742- 1743 .) On October 7, 1995, a Saturday, Williams worked from 3 p.m. to 1 a.m. The fhl- lowing day (October 8th) he went on a ride-along with the Madera County Sheriffys Ex- plorcrs. (7 RI' 1745.) His time card was introduced into evidence (Ex. 47). (7 RT 1747.) Carmina Garza testified that she was a partner with R o ~ n i in the Express Mini Mart. She paid the vendors. worked the register. and hired and fired employees. She worked two or three shifts per week and regularly opened the store, but never closed the store. (7 R T 1791 .) She testified that Robert Williams worked three days per week. (7 R'T 1794.) At the time of her testimony Carmina had charges pending with respect to her role in this case. (7 RT 1904.) She testified that she had been recently in-jured in an auto acci- dent. She was on various medications. and still felt dizzy. (7 RT 1901 .) The store had three security cameras. positioned to catch people stealing and to monitor employees. The tapes ran from 5 p.m. Carmina kept some tapes that had some- thing significant. Others were reused and taped over. (7 RT 1795, 1799, 1801 .) On October 8, 1995, Little Pete asked her to check the tapes at the store. (7 RT 1891 .) She found one that showed appellant and Little Pete, and Danny Escobar (an em- ployee), Jimmy Singh. and Romi. Little Pete was helping out like he always did. It was not unusual for him to help out even though he was not an employee. Carmina saved the videotape. (7 RT 18 15.) In November of 1995 she spoke to Officer Ciapessoni. At his request she went to the store and retrieved the videotape. (7 RT 1799, 1833.) The videotape (Ex. 71A) was played in open court. but it was not admitted into evidence. (7 R?' 1823, 1835.) On the tape, Danny Escobar left and was replaced by Jim- my; this was a shift change. The clock on the wall indicated 9:37. At 9:39 Romi walked into the store. At 9:45 Little Pete walked in. followed by Big Pete. Little Pete mopped the floor while Big Pete and Roini watched. The clock indicated 10:15. (7 RT 1825- 1826.)" Mopping thc floor was a chorc perlbrmed five times a day. not just at closing. (7 RT' 1879.) 'l'hc parties stipulated as follows: "In the videotape inarked as Exhibit 71-A. the store is closed for the day. Approximately 50 minutes after the person's identified by Carrnina Garza as her father Pedro Rangel. Jr., and her brother Pedro Rangel the I11 leave the store." ( 8 RT 1905.) Carrnina Garza questioned whether the identified tape was the same one that she found when Little Pete asked her to revicn the tapes. Romi was by himself in the tape that she reviewed; she speculated that Ro~n i may have replaced it with another tape, be- cause "Romi is sneaky." (7 R'T 1 834. 1 879, 1902.) Rorni Singh was a reluctant witness; he was arrested prior to trial when he an- nounced that he was moving to India, and he was facing charges, with Carmina Garza. with respect to his role in this case. (7RT 1859. 1864. 1868.) Although he and Carmina had plans to marry. he was already ~narried to someone else, and had children. (7 RT 1 863 .) Romi gave the videotape dated 10-7-95 (Ex. 71A), as well as another dated 10-8- 95 (Ex. 70A). to Officer Ciapessoni on Novernber 16, 1995. (7 RT 1846.) He retrieved the tapes f i o~n a safe at the store. He told Ciapessoni that he got the tapes from appellant. but this was not true. ( 7 RT 1856.) When he was arrested he changed his statement and 2 5 These times corresponded with the shootings on East Central; if the tape was rec- orded on October 7. 1995. the persons on the tape would necessarily have a convincing alibi. said that Carmina had provided the tapes. Hc then participated in a pretext phone call with Car~nina. to obtain a statement that could be used against her (the contents of that pretext call were not introduced in evidence). (7 R'r 187 1 .) Komi acknowledged that the store closed at 1 :00 a.m. on Saturdays. According to his time sheet. Robert Williams. who did not appear on the tape. worked the night of Oc- tober 7, 1995. (7 RT 185 1 .) On October 3 1 , 1995. after Jesse Rangel's return fiom New Mexico, he partici- pated in a recorded pretext phone call with Carmina Garza. Jesse commented to Carmina that Richard Diaz was "acting like nothing even happened." Diaz seemed to think that he was on the videotape with Big Pete and Little Pete. (8 RT 1912.) Carmina said, "sorry, Richard. you are not. You thought you were but you are not no more." She laughed, and said, '.if only he knew." (7 RT 1899: 8 RT 19 13.)'" Motel receipts, introduced by stipulation. indicated that "Pete Rangel" stayed at an Economy Inn on Coolwater Lane in Barstow. California, from November 16 to Novem- ber 17, 1995 (Ex. 85, 86). "Pete Rangel" stayed at a Motel Six in Phoenix, Arizona, from November 17 to November 18. 1995 (Ex. 84). ( 1 1 CT 2375; 8 RT 1919; see 2 ACT 455.) On November 20. 1995, appellant was interviewed by Detective Ciapessoni at the Madera Police Department. in the presence of his then-attorney Rudy Petilla. (7 KT 1768.) The interview was tape recorded (Ex. 72 and 73). The redacted tape recordings It is unclear from the record why Richard Diaz would think that he was on the ali- bi tape. He did not testify that he participated in a staged videotaping. He did not say that he was at the Express Mini Mart at the time of the shooting or any other time. were played to the j u r ~ (8 R'I 1906). and a redacted transcript was provided to the jur) (Ex. 89, identified at 1 1 C'?' 2375 and 8 RI' 1920. and reproduced at 2 ACT 387-455). Appellant cxplained that he had to leave his job with FMC because his son had been shot. He heard that someone was trying to hurt his son. and he had to be with hirn 24 hours a day. (2 ACT 390.) IIe t'clt that they needed to "get the hell out of this place," .. . because "it's getting pretty violent around here. I'hey had not made a long-range plan of where to go. (2 ACT 407.) Appellant described the barbecue at his house on the evening of October 7, 1995. He recalled that Rafael Avila came to the barbecue to drop off their baby, then he left. (2 ACT 426.) In appellant's opinion Rafael may have wanted to retaliate for the shooting of Little Pete. (2 ACI' 454.) Just prior to the interview. Detective Ciapessoni showed appellant the alibi video- tape from the Express Mini-Mart. (7 RT 19 18.) Appellant stated that the videotape seemed to represent the scene at the Mini-Mart while he and his son were there. (2 ACT 453.) Appellant and Little Pete left the barbecue together and drove to Romi's Mini- Mart to pick up sodas and other supplies. Rorni was already at the Mini-Mart. He asked appellant to move some stuf'f'around: Little Pete did it. As indicated on the videotape. they were at the Mini-Mart for about 35 to 40 minutes. fi-om some time before 10:00 p.m. to some time after 10:00 p.m. (2 ACT 429-430.) Appellant stated that he would be sur- prised to learn that the videotape was recorded on the 8th rather than the 7th of October. (2 ACT 445.) Initiallq appellant could not place the name Richard Iliaz. (2 ACT 436.) Then he remenibered seeing Diaz at the house two or three weeks earlier. ( 2 ACT 448.) Appellant recalled seeing guns at the home of Juan and Deanna [Ramirez]. (2 AC'I' 438.) Juan left the guns in appellant's garage. and appellant returned them. He confirmed that they belonged to Juan. (2 ACT 439, 453.) Since he handled the guns when he returned them to Juan. appellant surmised that his fingerprints might be on them. ( 2 ACT 442.) (It was stipulated that appellant's fingerprints were not actually found on any of the weapons. (8 RT 1907.)) Appellant denied that he or his son committed "some kind of crime," or that he had anything to do with the murders. (2 ACT 447.448.) Cindy Durbin began by identifjing a photograph of Jesse Range1 as one of the as- sailants (see above). She estimated the age of both of the assailants at 20 to 21. At the preliminary hearing2' she said that she could not estimate their ages. (6 RT 1406.) The shorter assailant was about her own height. She told Ciapessoni that the other assailant (not Jesse) was a head taller. (6 RT 1402- 1406.) Ms. Durbin was in court with appellant. who was a charged defendant, at the pre- liminary hearing. District Attorney LiCalsi told her "that the people that she was going to see in court did not comprise anyone that she had picked out." ( 6 RT 1422 [stipulation].) She identitied appellant at that time as the taller oi'the assailants. ( 6 RT 1401.) At trial 3 7 The Reporter's Transcript of testimony to the jury does not contain a date for the preliminary hearing. The Clerk's Transcript indicates the date of the preliminary hearing as July 18. 1996. (4 CT 8 12.) she identified appellant as one ol'the perpetrators. "I would sap 80 to 90 percent sure." (6 RT 1391.) Defense Case Detective Ciapessoni interviewed Richard Diaz on January 6. 1996. Diaz insisted that he was not armed during the confrontation between Little Pete and Juan Uribe after the baptism party. Even though Ciapessoni was skeptical, Diaz said that none of his group had guns. They were not afraid to confront Uribe without guns. (8 RT 1969, 1982.)" Appellant's father-in-law Jose Enriquez was in i l l health in the period prior to the trial. He was sub-ject to a conditional examination, held at his home on March 27, 1998. The conditional examination was videotaped and played to the jury. (8 RT 2075.) It was also transcribed. and the transcription was entered into evidence (Ex. 92A). (2 ACT 456- 5 16.) Mr. Enriquez testified that he was at appellant's house on Wessmith when he heard that Little Pete (whom he called "Boobie") had been shot. Mr. Enriquez was out- side the house when Jesse Range1 (whom he called "Chewy") arrived. (2 ACT 467.) *' At trial during the People's case Diaz testified that he had been carrying his .38 earlier in the evening, but he claimed that he was not carrying it with him when he and Little Pete drove by the Women's Center. (5 R'I' 1295- 1297.) During the confrontation between Little Pete and Juan lJribe later that night. Diaz testified that his gun was under- neath the seat of his car. but he claimed that he did not take it out. (5 RT 1299.) During that confrontation Martha Melgoza saw Diaz holding a gun. tapping it on the fi-ont passenger seat; in a prior statement she said that his hand was outside the car. holding a gun. (4 RT 1028. 1030.) Jesse told Mr. Enriqucz. "Don't worr),. 'l'io. I'm going to take care of everything." 'I'hen he pulled out a gun. Mr. 1:nriqucz was afraid of guns. and left shortly thereafter. (2 ACT 468.) Mr. Enriquez could not describe the gun. (2 AC'I' 472.) In addition. i t was stipulated that defense investigator Micki Hitchcock inter- viewed Mr. Enriquez in June of 1996. He told her that Jesse Range1 had displayed a handgun. just as he indicated in the videotaped conditional examination. (8 RT 2084.) Florentine Alvarez testified regarding the incident in which Jesse Range1 shot at Juan IJribe's car shortly after Little Pete was shot in the head. Alvarez testified that he was in the car with Jesse Rangel, as well as Darnian Allatorre and Valentine Padilla (Al- varez' cousin. also known as "Bingo"). Jesse was the only one of that group who shot at Uribe's car. (8 RT 1985.)" Jesse used a 9mm handgun, which was placed back in the glove compartment. Mr. Alvarez acknowledged that he told Investigator Benabente that he shot the gun a few times. (8 R?' 1991 .) He clarified that he took the 9mm out of the glove compartment and fired it twice in the air. (8 RT 1994.) Alvarez testified that he never told anyone that Richard Diaz told him that on the night of Juan Uribe's death Rafael Avila, with Jesse Rangel and Juan Ramirez, drove around casing Uribe's house for two hours. He denied saying that Diaz told him that the shooters were Jcsse Rangel and Juan Rarnirez. (8 RT 1988.)"' 2 0 In his testimony Jesse Rangel claimed that both he and 'I'ino Alvarez shot at IJribe's car. (4 RT 1086, 1 100.) -30 In his tcstimonq in thc People's case. Richard Diaz did not remember making this statement to Tino Alvarez. (5 RT 1337.) f lowever. Detective Ciapessoni interviewed Alvarcz in thc county jail on Novem- ber 20. 1995. At that time. according to Ciapessoni. Alvarez said that Richard Diaz had spoken to him earlier that month. Diaz told Alvarez that they cruised around two hours belhre the shootings. 'l'he leti rear passenger got angry and discharged his weapon. They found Uribe. but lost hill1 in the area of the Snow White drive-in. After two hours they located IJribe again. and shot him and Chuck Durbin. 'I'he shooters were Jesse Rangel and Juan Ramirez. (8 RT 1996- 1997. 1998.) Christina Bowles regards appellant as her father. based on his role in raising her. (8 RT 2095.) She testified that she had contact with Jesse Rangel and Richard Diaz on October 6. 1995. the day before the murders. She left her house that day to look for Ri- chard, "to buy a dime of crank." (8 RT 2086.) She saw the two driving a Jeep that belonged to her aunt. They gave her a ride to a friend's house. She saw a gun under the driver's seat and asked Jesse if it was real. He said it was. then he said that they were going to "Go get even" with Juan. (8 RT 2088.) Brian Ciapessoni interviewed Richard Diaz in the presence of his attorney on Jan- uary 6. 1996. They discussed a tentative agreement in exchange for his testimony, to in- clude no time in custody. (8 R1' 1967.) Diaz said that he saw both guns - the .22 and the .380 - taken from the back of' Big Pcte's truck on thc night of the barbecue. (8 RT 1972 . )~ ' Further evidence was introduced concerning Cindy Durbin's in-court testimony identifying appellant and his son as the assailants. Madera Police Ofiicer Kenneth Alley arrived at the murder scene as Ms. Durbin was being wheeled from the house on a gurney. She was coherent but in obvious pain. She told Officer Alley that she was in the kitchen, and her three children were asleep in the living room. She heard Juan Uribe yell from the front of the house. Her husband went into the living room, and she heard gunshots. (8 RT 1925-1926.) Juan stepped in front of her. and the next thing she remembered. Juan was on top of her. She did not say that she was in the living room during the assault, though she was not specifically asked that question. (8 RT 1927.)" Detective Ciapessoni interviewed Cindy Durbin at the police department on Octo- ber 21. 1995. two weeks after the shootings. At that time she stated that she could not remember the face of the taller of the shooters (who she later identified as appellant). She got a good look at the shorter assailant (who she identified as Jesse Range1 at that point in the investigation). Both were "kids," aged 20 or 2 1. She was age 32 at the time. 3 1 In his testimony Richard Diaz said that he saw Little Pete take the .22 from appel- lant's truck. (5 Rr l 1265- 1266.) IIe testified that the .380 belonged to Rafael Avila. (5 RT 1291.) In her testimony in the People's case. Ms. Durbin testified that she was in the liv- ing room, and identified the defendants based on her observations there. (6 RT 1379.) and shc estimated the assailants as tcn to twelve years younger than she. (8 RT 193 1- 1935.) Ciapessoni also questioned Ms. Durbin about her contact with Jesse Candia on Octobcr 8. 1995. (8 KT 1936.) She told him that Candia tried to get her to provide an identification by suggesting names. (8 RT 1939.) Ciapessoni showed her a six-pack pho- to lineup (Ex. 52) which included Jesse Rangel in the number four slot. in the lower left- hand corner. (8 RT 1940.) She said that she had identified this person to Jesse Candia, as one of the persons responsible for the death of her husband (Ex. 57). She also picked Jesse Rangel's photo out of Exhibit 52: "she was positive." (8 RT 1947.) Ms. Durbin was never shown a photo line-up with appellant's picture in it. (8 RT 1939, 1980.) In Detective Ciapessoni's opinion. Jesse Rangel and Little Pete look a lot alike. (8 R-r 1979.) Richard Fitzsimmons was called to testify as a defense witness; he did not testify in the prosecution case. He was present when Chuck Durbin was killed. Just prior to the shooting. Fitzsimlnons was standing in the kitchen by the back door. Cindy Durbin was sitting or standing in the kitchen. (8 RT 2000.) He heard a yelp, looked up, and saw two young Hispanic males standing at the screen door. l'hey were both in their early twen- ties, not over 30, dressed in dark clothes without hoods or hats. The only light in the liv- ing room was from the television. (8 RT 2007. 203 1 .) 1-itzsimmons heard eight or nine shots in rapid succession. He followed Alvin Areizaga into the bedroom. (8 RT 2001. 2003.) l~itzsi~nruons u ed metha~nphetaminc that evening at the Durbin residence. about ten or fifteen minutes before the shooting. and drank one beer. (8 RT 2032, 2035.) Fa- bian Benabente interviewed Fitzsimmons at the police department the night of the shoot- ings. Fitzsimmons was coherent. though he appeared to have been drinking. (8 RT 2072.) Fitzsimmons told Benabente that both assailants were young. (8 RT 2034.) Fitzsimmons denied telling Ciapessoni that he arrived at the Durbin residence after the shooting; indeed a photograph was introduced showing the bullet wound to Fitzsim- mons' leg suffered during the attack (Ex. 90). (8 R'I' 2037-2038.) 'I'he defense introduced further evidence concerning the alibi of Jesse Rangel. Diane Salas was called as a defense witness. She denied that she tried to fabricate an alibi for her son. She could not remember telling Ciapessoni that she heard about the Durbin shooting on the news on Sunday evening. the day after it occurred. (8 RT 2 0 4 0 . ) ~ ~ She remembered turning to her fiance and saying, "thank God Chuy was here with us." (8 RT 204 1 .) Ms. Salas tried to explain why she did not bring her son in for questioning after the shootings. She claimed that she did not trust Benabente. Mary Range1 supposedly told her that "Benabente was on their payroll." Benabente was an informant for the Ran- gels. according to Ms. Salas, and he let them know about the investigation. (8 RT 2048.) She also testiiied that hc was rude to her. so she was not comfortable speaking to him. '' 'festifying earlier in the People's case. Ms. Salas stated that she learned of the shootings on television the night they occurred. She denied telling Ciapessoni that she learned of them the following day. (7 RT 1737.) She denied a statement fi-om Benabcntc's report that she did not bring in Jesse because "it m~asn-t in his best interest." ( 8 R 1 2047. 2052.) She tirst spoke to her brother. who uas also a police ofiicer. (8 RT 2050.) Ulti- mately she spoke to another oflicer and told him whcrc Jesse was hiding. (8 RT 2048.) Shc insisted that she did not know that Jesse was considered a suspect in the shootings. (8 R1' 2052.) I>etective Ciapessoni testitied that he spoke to Diana Salas on October 26. 1995. after Jesse was picked up in New Mexico. She said that she first heard about the shoot- i n g ~ on television news on Sunday, the day after the shootings. (8 RT 2060.) She said that her son told her shortly after the shootings that he was a suspect and asked for help. and she did help hiill. They had an appointment to speak to Benabente, but she chose not to follow through with the appointment. (8 R'r 2058.) Detective Ciapessoni confirmed that he had telephone contact with Erica Bautista shortly before officers arrived at their hiding place in New Mexico. In the transcript of the recorded conversation, Erica stated that "the authorities did believe that Jesse was in- volved." (8 RT 1955.)"' People's Rebuttal Fabian Benabente testified that he spoke to Tino Alvarez two weeks earlier. in the presence of District Attorney Ernest L,iCalsi. Alvarez said that during the drive-by of ''' In her testimony in the People's case. Erica stated that she did not remember say- ing that police may have considered Jesse a suspect during their flight to New Mexico. (6 R'I' 1598. 1600.) Juan IJribe's housc. hc grabbed a gun out of Jesse's hand and also fired it, consistent with Jesse Rangel's testimony in the l'eoplc's case. (8 RT 2 102.) Jesse Rangel testified that he did not see Jose Enriquez around the time of the shootings. He denied displaying a gun in the presence of Enriquez. and denied saying. "Don't worry, 'Tio. 1-11 take care of everything." (8 R-1' 21 10.) He also denied driving around Madera the day before the shootings. and claimed that he did not give a ride to Christina Bowles as described in her testimony. (8 RT 2 1 1 1 .) Komi Singh testified that he did not see Jesse Rangel at the barbecue at appellant's house on October 7, 1995. He saw Richard Diaz in front of the house, not at the barbe- cue itself. (8 RT 2107.) He did not hear anyone say, "Let's go get Juan," or "Nobody is going to get away with shooting my son." (8 RT 2 108.) Detective Ciapessoni testified that he was the first officer on the scene, and Ri- chard Fitzsimmons told him that he arrived after the shooting. (8 RT 2006.1~' Deanna Ramirez testified that she has never known her husband to possess guns. although she acknowledged that they were separated at the time of the shootings. (8 RT 2 100.) Fabian Benabente remembered speaking to Diana Salas in November of 1995. He denied that he was rude to her: he thought that she was rude to him. (8 RT 2106.) He witnessed a confrontation outside the courtroom between the Range1 and Diaz families. * - " This despite the photograph showing a gunshot wound to Fitzsimmons' leg. Fitz- si~ninons was named as a victim of an attempted murder (Count 111). a charge which was dropped only on September 8. 1995, just before the presentation of evidence. (1 1 CT 2354.) but he denied that he had any role in the confrontation between the two groups. (8 KT 2 105.) Defense Surrebuttal Defense investigator Micki Ilitchcock testilied that during the preliminary hearing she saw Benabente seated in the hallway with Martha Melgoza during the family con- frontation. as described in the testimony of Christina Bowles. (8 RT 21 13; see 8 RT 2098.) PENALTY PHASE The prosecution introduced additional evidence regarding the circumstances of the offense and its immediate aftermath. The Durbins' six-year-old daughter Natasha spoke to Of i ce r Ciapessoni at the scene, and later to her grandmother. She said that she awoke to see two men in the kitch- en. They said, "Juan, you disappointed us," and called him a "traitor." Daddy said to run and hide; she pulled the covers over the other kids. She heard shots fired, and the two men left the residence. She thought that she could identify them. (10 RT 2389. 243 1, 2439.) Cindy Durbin described the shootings again from her perspective. She testified that she went into the living room before the incident, and found that the girls were asleep and Brett was awake. She saw two individuals who raised guns and started firing. (10 RT 2425.) Back in the kitchen. Chuck said that they were real bullets. Chuck said to hide. and he ran into the living room. As she dove under the counter she felt two burning sen- sations. She grabbed them so she would not bleed to death. Juan was on top of her. When he did not respond. she realized he was dead. She crawled out and screamed for the kids. ( I0 RT 2426-2427.) She found Savanna sitting next to her father. Cindy herded the kids into the bed- room. She went back and told Chuck that she loved him. He raised his hands and tried to talk. ( I0 RT 2428.) Cindy screamed at Alvin to call 91 1 . The alnbulance driver told her that her hus- band was dead. She called Ginger Colwell, Chuck's mother, and told her what had hap- pened. ( 10 R1' 2429.) Several relatives responded to Durbins' house, where they were told that Chuck was dead. (10 RT 2384 [Maria Sanchez (Guzman). Juan Uribe's mother]; 10 RT 2393 [Randy Durbin]; 10 RT 2435 [Ginger Colwell]; 10 R?' 2406 [Martha Melgoza].) The prosecution introduced evidence of the impact of the deaths on the victims' families. Juan Uribe's mother testified that she now lives in Tennessee with her three daughters and Martha Melgoza. All of Uribe's sisters went through counseling after his death. ( I0 RT 238 1. 2387.) Martha Melgoza testified that Juan IJribe's daughter cries and says that she misses her dad. She thinks that shc sees him everywhere they go. (10 RT 2408.) Chuck I>urbinas son Brett told his mother that he is still looking h r Chuck: he told his grandmother something similar. ( I 0 KT' 2430. 2439.) Brett is slightly autistic. which Cindy attributed to the eftkcts ol'the shooting. ( 10 K'1' 243 1 . ) l 'he Durbin family have all been in counseling. ( 10 RT 243 1 .) Cindy Durbin has gotten married again. and recently had a baby. She still wakes up crying. and her husband is unable to make her feel better. ( 10 RT 2432.) Natasha died of influenza in August prior to appellant's jury trial, about three years after hcr father's death. Iler mother felt that she was less able to deal with Nata- sha's death because of not having Chuck around to help her. ( 10 RT 2433 .) Chuck Durbin's mother testified that her grief has only gotten worse; she still waits for him at the beauty shop. and pretends that he is working at the Save Mart and will be coming home. ( 10 RT 2438.) Chuck Durbin's younger brother Randy testified that he depended on Chuck as a father figure. (10 RT 2393.) He misses his brother. and has had a hard time being close to people since the shooting. ( I 0 R1' 2403.) The defense presented evidence concerning the disadvantaged circumstances of appellant's upbringing. Joe Range1 is appellant's youngest brother; he was age 46 at the time of the trial. and appellant was age 5 I . When they were young they had a hard life as migrants, living in 'Texas. Arizona. Washington. and California. While they were staying in Madera their father contracted tuberculosis. ( I0 KT 2470.) Appellant took responsibility for the hmily at that point. He quit school and went to work in the fields. The other brothers were able to finish high school. Joe cannot thank appellant enough for his contribution to the family. ( 10 RT 247 1 , 2476.) Their fa- ther was released from the sanitarium and \vent back to work. and appellant joined the Navy. He was a positive role model for his brothers. (10 RT 2473.) Appellant's work history was partially recounted during his interview with Detec- tive Ciapessoni on November 20, 1995. Appellant stated his date of birth as September 20, 1947. (2 ACT 388.) After leaving the Navy he worked for the U.S. Forest Service as a fire fighter. Then he worked for Bob's Cyclery as a small engine mechanic, and for Ray's Pool Service servicing crop dusters. (2 ACT 390-391 .) Joe Rangel confirmed that appellant worked for Bob's Cyclery and for Ray's Pool service. (10 RT 2474.) Jesse Coronado MacCrone knew appellant from childhood. He now works for the employment department. He had a role in getting appellant a job at FMC. He recom- mended appellant as a good person who was never in trouble and supported many child- ren. (10 RT 2506-2508.) Michael Percy was a fellow mechanic. who worked with appellant out of the same tool box, from 1980 to 1995. Percy transferred with FMC when the company relocated to Madera. Appellant was hired locally. (10 R1' 2443.) Appellant introduced Percy to the cornmunity and invited him to barbecues and other social events. (10 RT 2445.) They were often called to repair machinery, and had to work in a "hostile environment." Ap- pellant was very professional with unhappy customers. Appellant was very calm; he once calmed Percy down when they were called to work on Super Bowl Sunday. Percy was aware when appellant's son \bas shot. but appellant would not talk about it. (10 Rl' 2449-2453 .) Jcrry Smith. a witness in the guilt phase. was appellant's supervisor at FMC. The), worked together for lifteen years. Smith described appcllant as a nice guy. patient and not moody. and good at training new employees. (10 R71' 2456.) Ronald Edwards was a neighbor of appellant and a fellow employee at FMC. He has a very high opinion of appellant. (10 R1' 2468.) Appellant once defused an argument which Edwards had with another neighbor. (10 RT 2465.) Appellant took in his nieces and nephews when his sister-in-law died. and raised them. (10 RT 2466.) Edwards had a conversation with appellant after his son was shot. Appellant said that he counseled his son to let it go, to let bygones be bygones. Appellant was afraid that something even worse would happen. "He didn't want things to escalate any further." (10 RT 2467.) Another neighbor, George Helton, also testified to appellant's role as a peacemak- er. (10 RT 2513.) Appellant met and married Maria when he was just out of the military. He took responsibility for her children. (10 RT 2474.) Evidence at the guilt phase established that appellant played a step-parent role for Edora Avila (5 RT 1196. 5 RT 1208), Deanna Ra- mirez (6 KT 1477). Carmina Garza (2 ACT 394), and Christina Bowles (8 RT 2095). Deanna Ramirez testified at the penalty phase. She was about two years old when appellant ~ n c t her mother. In addition to taking the responsibility for Deanna and her siblings. appellant also supported her Sour cousins and Aunt Yolanda, who has Downs Syndrome. The cousins' mother passed a\zay when Dcanna was age sixteen. (10 RT 2483.) Deanna never knew her biological father. Appellant took her to her father's funer- al in Mexico. (10 RT 2485.) At the funeral it was noticeable that her father's family was excluding Deanna and her sisters. Appellant counseled them and said that he would al- ways be their dad. He took them to the zoo and to church, and provided the girls with quinceneras. He counseled Deanna not to have an abortion. He is close to Deanna's daughter. now age twelve. ( 10 R?' 2487-2493.) One of the cousins. Josephine Reyes, testified that she lived with the Rangels for sixteen years. Appellant was involved in all of the activities of the many children. He told her that he would accept her even if her father rejected her. Yet all was not perfect; Josephine once set a field on fire, and she remembered that appellant criticized some of the girls because of their weight. (10 RT 252 1-2523.) Angela Chapa dated appellant's son. When she became pregnant in 1993, her par- ents were angry, but appellant was supportive and she came to live in appellant's house. They got their own apartment, and when Little Pete was laid off, appellant paid their rent. He was at the hospital when their child was born. (1 0 RT 25 15.) On September 24, 1995. a call came from Madera Community Hospital. Every- one learned that Little Pete had been shot. Appellant was crying that night and the next day. (10 RT 2518.) On cross-examination she admitted that Little Pete "wasn't shot in the head. it was the scalp." ( 1 0 R'I' 25 19.) ARGUMENT I. APPELLANT WAS DENIED THE RIGHT T O A JURY DRAWN FROM A REPRESENTATIVE CROSS-SECTION O F T H E COMMUNITY, BY THE SELECTION O F JURORS IN ORDER ACCORDING T O THEIR APPEARANCE ON THE FIRST PANELS OF PROSPECTIVE JURORS. Six separate groups or panels of prospective jurors were called to the trial depart- ment for selection of'the trial jury. After voir dire and exercise of challenges for cause. prospective jurors were called to the jury box for the exercise of peremptory challenges. However. the prospective jurors were not selected by a random process. All the prospec- tive jurors called to the jury box were from the first panels; none were called from the later panels: thus all the jurors and alternates were from the sub-set of prospective jurors called at the outset of the selection process. As a result of this systematic and non- random selection process. the pool available for selection of the trial jury grossly under- represented the Hispanic composition of the total qualified panel, and under-represented the Hispanic population of Madera County. The constitutional right to jury trial by a jury chosen from a fair cross-section of the coln~nunity was stated as follows in People v. Sanders (1990) 5 1 Cal.3d 471, 491 : "In California. the right to trial by jury drawn from a representative cross-section of the co~nlnunity is guaranteed equally and independently by the Sixth Amendment to thc federal Constitution (Tqdor v. Louisiana ( 1975) 4 19 L1.S. 522. 530) and by article I. section 16 of the California Constitution. (People v. Wheeler ( 1978) 22 Cal.3d 258. 272.)" (Williams v. Superior Court (1989) 49 Cal.3d 736. 740.) "In order to establish a prima I'acie violation of the fair-cross-section requirement, the defendant must shon ( I ) that the group alleged to be excluded is a 'distinctive' group in the community: ( 2 ) that the representation of this group in venires fiom which juries arc selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process." (Duren v. Missouri (1979) 439 U.S. 357, 364; see also Bell, supra, 49 Cal.3d at p. 525; People v. Morales (1989) 48 Cal.3d 527, 543.) If a defendant demon- strates a prima facie case of systematic underrepresentation under this tri- partite test. the burden shifts "to the state to come forward with either a more precise statistical showing that no constitutionally significant dispari- ty existed or that there was a compelling justification for the procedure which results in the disparity in the jury pool.'' (Harris, supra, 36 Cal.3d at p. 50.) I'rial began on August 18. 1998, with the calling of two initial jury panels to the trial department. 'I-he first initial panel was called in the morning and examined for hard- ship. and questionnaires were distributed. The second initial panel was called in the af- ternoon. Again the prospective jurors were examined for hardship, and questionnaires were distributed. Both of these initial panels were instructed to return on the morning of August 25, 1998. (I 1 CT 2346; 2 RT 295-38 1 .) Jury selection continued on August 19, 1998. The third initial panel was called in the morning. and the fourth in the afternoon. Prospective jurors were examined for hard- ship and questionnaires were distributed. The third initial panel was instructed to return on the morning of August 25; the fourth initial panel was instructed to return on the morning of August 26. ( I 1 CT 2347: 2 RT 382-462.) Jury selection continued on August 20. 1998. The fifth panel initial was called in the morning. and the sixth in thc afternoon. Again the prospective jurors were examined for hardship and questionnaires were distributed. Both of these panels were instructed to return on the morning of August 26. ( 1 1 C1' 2348: 2 RT 463-552.) Voir dire and challenges t'or cause took place on August 25 and 26. 1998. Pros- pective jurors were called to the j u r ~ box and sub-ject to perelnptory challenges until a jury was constituted. The primary jurors were sworn on the morning of August 26. and the alternate jurors were sworn shortly thereafter. ( 1 1 CT 2350. 235 1 ; 3 RT 554-780.) In the process ofjury selection on August 26. 1998. prospective jurors were called and seated in the jury box in their original order. Thus, all twelve jurors (Nos. 173558 182, 179497035. 176040506, 179958767. and 1800 18729) and the four alternates (Nos. 174649689. 180005594. 18003809. and 18000352) were selected out of the first 84 names assigned to the trial department on August 25, 1998. The remaining prospective jurors on the later initial panels. some 90 persons, did not reach the jury box for consideration as seated jurors or alternates. This procedure violated the statutory guarantee of randomness in jury selection, and the state and federal guarantees of trial by a fair cross-section of the community Before proceeding with the analysis of this claim, some ef'fort should be made to clarify thc nomenclature used in relerence to trial jury selection. The following defini- tions were provided in People v. Bell (1989) 49 Cal.3d 502, 520. fn. 3: '1'0 avoid the confusion arising from the imprecise and interehangea- ble use of terms. we adopt the usage proposed by respondent. The jury "pool" is the master list of eligible jurors compiled for the year or shorter period t'rom which persons will be suln~noned during the relevant period for possible jury service. A "venire" is the group of prospective jurors sum- moned from that list and made available. after excuses and deferrals have been granted, 1i)r assignment to a "panel." A "panel" is the group of jurors f'ro111 that venire assigned to a court and iiom which a jury will be selected to try a particular case. Definitions also appear in Code of' Civil l'rocedurc tj 194. including definitions of "ran- dom" and ..trial jury panel.""' 3 6 The following definitions govern the construction of this chapter: (a ) "County" means any county or any coterminous city and county. (b) "Court" ineans a superior court of this state, and includes. when the context requires, any judge of the court. (c) "Deferred jurors" are those prospective jurors whose request to reschedule their ser- vice to a more convenient time is granted by the jury commissioner. (d) "Excused jurors" are those prospective jurors who are excused from service by the jury commissioner for valid reasons based on statute, state or local court rules, and poli- cies. (e) "Juror pool'' means the group of prospective qualified jurors appearing for assignment to trial jury panels. (f) "Jury of inquest" is a body of persons summoned fiom the citizens before the sheriff, coroner, or other ministerial ofticers. to inquire of particular facts. (g) "Master list" means a list of names randomly selected from the source lists. (h) "Potential juror" means any person whose name appears on a source list. ( i ) "Prospective juror" means a juror whose naine appears on the master list. ( j ) "Qualified juror" ineans a person who meets the statutory qualifications for jury ser- vice. (k ) "Qualified juror list" ineans a list of qualified jurors. (I) "Random" means that which occurs by mere chance indicating an unplanned sequence of selection where each juror's naine has substantially equal probability of being selected. These sets of' definitions. hoivever. are not precise in one respect relevant to this analysis: the) do not accurately or completel~ define the "trial jury panel." For most tri- als a single panel of 50 to 80 prospective jurors is enough to cornpose a jury. But in a capital trial. due to the large nulnber of perelnptory challenges and the large nulnber of hardship excuses and challenges for cause. multiple panels are called in the course of jury selection. I Iere. by prior agreement. six panels were called. Therefore. the "trial jury panel'' in a capital case is generally composed, as here, of lnultiple panels. For purposes of this analysis. the separate panels that arc called in the course of capital jury selection are referred to as "initial panels." Where lnultiple initial panels are called, and the capital jury is selected not from the trial jury panel as a whole but fioln one or two of the original panels. randomness is defeated. Randonlness is a statutory requirement, designed to insure that the trial jury represents a fair cross section of the corninunity. (in) "Source list" means a list used as a source of potential jurors. (n) "Summons list" means a list of prospective or qualilied jurors who are summoned to appear or to be available for jury service. (0) "71'rial iurors" are thosc jurors sworn t o try and deterinine by verdic~ a question of fact. (p) "17rial jur)" means a bod) of persons selected l'rom the citizens oS the area served by the court and sworn to try and determine by verdict a question of fact. (q) "Trial jury panel" ~neans a group of prospective jurors assigned to a courtroom for the purpose ol'voir dire. It is \yell settled that no litigant has the right to a jury that mirrors the de~nographic composition of thc population. or necessarily includes inem- bers of his own group. or indeed is composed of an) particular individuals. (People v. Wheeler, supra. 22 Cal.3d at p. 277; People v. White, supra. 43 Cal.2d at p. 749; People v. Hines (1939) 12 Cal.2d 535. 539.) What the representative cross-section requirement does mean, however, is that a liti- gant "is constitutionally entitlcd to a petit jury that is as near an approxima- tion of the ideal cross-section of the community as the process of random draw permits." (People v. Wheeler, supra, 22 Cal.3d at p. 277.) [fn. 51 [fn. 51 The fair cross-section principles set forth in Wheeler were codified by the Legislature in 1980. As amended in 1988, [Code of Civil Procedure] section 197, subdivision (a), requires in part that jurors be selected "at ran- -. from a source or sources inclusive of a representative cross section of the population of the area served by the court." Section 204 (former section 197.1) prohibits exclusion from jury service "by reason of occupation, race, color, religion. sex, national origin. or economic status, or for any other reason." (Williams v. Superior Court ( 1 989) 49 Cal.3d 736, 74 1 ; em- phasis added.) In the present case. since there was no random draw froin the entire "trial jury panel," there was a lack of randomness. "Nonrandom selection of a subgroup from a randomly selected group does not make for a randomly selected subgroup." (United States v. Kennedv (5th Cir. 1977) 548 F.2d 608, 6 12.) As a result of the lack of randomness, appellant was tried by a jury which did not represent a fair cross-section of the population of Madera County. including its Hispanic element. In the seated jury. only one person identified herself' as Hispanic. No. 180002532. In the remaining initial panel from which the jury was drawn. seven other persons subject to the drab identified theinselves as Hispanic (Nos. 18001 583 at CT 42 12; 1778032 17 at C7f 4975: 180001954 a1 C 1- 4082: 177386853 at C'l' 4134: 177365394 at CT 4732: 180007867 at C1' 5773: 174326833 at CT 5305). In the portion of the trial jury panel. coinposed of initial panels which were not reached bq the dram. 26 Hispanic persons were potentially eligible. ( 1 80006599 at 5435: 180006445 at CT 3665: 18001 8866 at CT 5643: 180019876 at C T 3457; 180004682 at CT 71 54; 18001 3242 at C'T 5800; 180003906 at C'1' 7857: 180013436 at CT 70751 1800122 12 at CT 5852: 180006936 at C1' 6477: 174572436 at 6086; 177537825 at CT 6320; 173 159485 at CT 8169; 178496205 at C1' 7388; 180016833 at CT 6346; 180009729 at C1' 7883; 180009542 at CT 6659; 164564605 at CT 5982; 172824759 at C'I' 8056: 180019037 at CT 6789; 155403762 at C.1- 7040; 173036712 at CT 6138; 1800056 10 at CT 661 6; 177 189336 at C1' 7830: 1800 124 12 at CT 5826; 17 1655744 at CT 4733.) About three-quarters of the Hispanic prospective jurors were excluded from con- sideration. as a result of calling prospective jurors in the order they were assigned to the trial department. Jury selection procedures which arguably operate to deny a defendant trial by a cross section ol'the community have been challenged in other cases. In People v. Visciot- ti ( 1992) 2 Cal.4th 1. 4 1. the attorneys devised a stipulation whereby the trial court desig- nated the tirst twelve prospective jurors to be seated. On appeal. the defendant chal- lenged the procedure as a denial of'the randomness requirement. This Court re-jected the challenge in part because there mas no demonstration that a racial or other protected group was excluded. and in part because the parties agreed to the procedure. Defendant also argues that random selection is necessary to ensure the constitutional right to a jury drawn from a representative cross- section of the populace. To the extent that he claims the procedures utilized in se- lecting the jury before which he was tried denied him due process or rights under the Sixth Amendment of the federal Constitution and article I, section 16 of the California Constitution. the claim fails for similar reasons. Ran- dom selection does serve to ensure the jury trial rights granted by the Sixth Amendment and article I. section 16 of the California Constitution. Not every departure from the state statutory procedure, even if deemed material. necessarily denies a defendant the constitutional right to a jury selected from a representative cross-section of the populace. however. We reject de- fendant's claim that actual harm need not be shown. To warrant reversal of a judgment of conviction. the defendant must demonstrate that the depar- ture affected his ability to select a jury drawn fiom a representative cross- section of the population. [fn. 141 [fn. 141 The state policy enunciated in the statutes mandating ran- dom draw reflects concern "that all qualified persons have an equal oppor- tunity ... to be considered for jury service in the state and an obligation to serve as jurors when summoned for that purpose ...." (Code Civ. Proc., fj 191 .) The rights of prospective jurors are not before us in this appeal, how- ever. We consider only whether the procedure ensured a fair trial at which the defendant's fundamental constitutional rights were protected. (See People v. Harris ( 1989) 47 Cal.3d 1047. 107 1 .) (Emphasis added.) Again, in People v. Ma-vfield (1997) 14 Cal.4th 668. 729, the defendant challenged a jury selection procedure involving selection of prospective jurors from a trial jury panel by the letter of their last name. Again. there was no ob-jection, and again there was a fail- ure to demonstrate that a cognizable group had been excluded fiom the jury Because the defense did not raise the present ob-jection to the selec- tion procedure before the jury was sworn. the claim has been forfeited. (People v. Visciotti (1992) 2 Cal.4th 1. 38.) Recognizing that we might reach this conclusion. defendant contends that his trial counsel's failure to object deprived him of' his constitutional right to effective assistance of counsel. We re-ject the claim of inef'fectivc assistance for lack of prejudice. Exclusion of prospective jurors whose last names began with a letter in the second half of the alphabet did not skew the jury selection procedure. There is no evidence. and no claim, that iurors of either gender or of any re- ligious - or racial or ethnic group are present in disproportionate numbers in the group of excluded iurors. (Emphasis addcd .) In the present case. it can be demonstrated that a disproportionate number of His- panics - 26 - were in the group oS prospective jurors which appeared in the later initial panels. A process that eliminates the rna-jority of potential Hispanic jurors unconstitu- tionally skews the jury selection process. Appellant assulnes for the sake of' argument that there was racial balance in the master jury list. in the venire summoned to the courthouse in August 1998, and in the trial jury panel remaining after hardship excuses and challenges for cause. But the process of calling prospective jurors into the jury box was not random. The order of seating pros- pective jurors reverted to the order in which the initial panels were called. This process was nonrandom. It eliminated most of the prospective jurors identified as Hispanic. As a result, the jury sworn to try this case had almost no Hispanics. As in any equal protection case, the "burden is. of course." on the defendant who alleges discrilninatory selection of the venire "to prove the existence of purposeful dis- crimination." ( Wl7ittrs t'. Georgicr ( 1965) 3 8 0 . S . 545. 550.) In deciding if the defendant has carried his burden of persuasion. a court must undertake ''a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." (Arlington Heights V. Metropolitun Hozrsing Dcveloprneizt C'orp. ( 1977) 429 IJ .S. 252. 266). Circumstantial evidence of invidious intent ma) include proof of disproportionate impact. (Washingtorl v. Davis (1976) 426 U . S . 229, 242.) Under some circumstances proof of discriminatory impact "may for all practical purposes deinonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds." (Ibid.) For example, "total or seriously disproportionate exclusion of Negroes from jury ve- nires,'' "is itself such an .unequal application of the law . . . as to show intentional dis- crimination."' (id., at 24 1 .) Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion. (Alexander v. Louisiana (1972) 405 U.S. 625. 632.) The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. (Ibid., see Jones v. Georgia (1967) 389 U.S. 24. 25.) Rather. the State must demonstrate that "permissible racially neutral selection criteria and procedures have produced the monochromatic re- sult." (Batson v. Kentucky (1986) 476 U.S. 79. 94.) In these circuinstances the defense could not use peremptory challenges to restore racial balance to the jury selection process. Even if racial balance were the only concern of the defense, exercising all 26 of its peremptory challenges on non-Hispanic prospec- tive jurors would on14 have advanced the jury selection process incrementally into the later initial panels. I t would have still omitted the vast ins-jority of the Hispanic prospec- tive jurors from the selection process. Exclusion of even a singlc prospectiic juror. in violation of the Sixth Amendment right to trial by a fair cross section of the community, is reversible error without regard to pre-judice or harmless crror. (People 11. Silva (2001) 25 Cal.4th 345. 386.) The non- random process of jurq selection employed here had the eff'ect of' producing a virtually ~nonochro~natic jury. For these reasons. the judgment must be reversed. 11. APPELLANT WAS DENIED DUE PROCESS BY THE TRIAL COURT'S REFUSAL TO EXCUSE A PROSPECTIVE JUROR, ULTIMATELY SEATED ON THE JURY, WHO HAD A FIXED OPINION ON THE DEATH PENALTY AND WAS PROPERLY CHALLENGED FOR CAUSE. Juror no. 1800070 14 was an "automatic death penalty" juror, a person who had fixed beliefs and could not consider the alternative penalty of life without parole. The defense challenged this prospective juror for cause, but the challenge was denied. The juror was ultilnately sworn and seated in judgment of appellant's guilt and penalty. Ap- pellant was denied a fair trial as a result of the participation of this juror in his trial. The proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accor- dance with his instructions and his oath." (Wainwright v. Witt (1985) 469 U.S. 412, 424.) ?'his standard has been adopted in California. (People v. Ghent (1987) 43 Cal.3d 739, 767.) Just as a prospective juror must be excused for cause if he or she says that he or she would autolnatically vote against the death penalty (Lockhart v. McCree (1986) 476 U.S. 162). a prospective juror inust be excused for cause if he or she says that he or she would automatically vote to impose the death penalty, if the defendant is found guilty. (Ross v. Oklahonzn ( 1988) 487 IJ.S. 8 1. 83-86: People v. Coleman ( 1988) 46 Cal.3d 749. 770.) Juror no. 1800070 14 filled out a questionnaire on August 18. 1998. ( 15 C?' 3249- 3274.) In the coursc of the questionnaire. thc juror indicated that she37 would not auto- matically choose life without parole over the death penalty. ( 15 CT 327 1 .) (The form did not ask thc converse. ivhethcr the prospective juror would automatically choose the death penalty over life without parole.3') Asked whether the death penalty is used "too often, not enough, about the right amount. or too randomly'?" (question no. 8 1). the juror answered. "Not enough - If there is proof without a doubt that a person has viciously killed another their life should not be spared." ( 15 CT 3 27 1 .) The prospective juror was examined as part of open-court voir dire on August 25. 1998. Defense counsel and the trial court questioned her about her statement of strong support for the death penalty; the court asked for an explanation of the prospective juror's "personal philosophy" on this sub-ject. 37 At 3 R?' 61322, and thereafter. defense counsel referred to the prospective juror as "she.'' " See Morgan v. Illinois (1992) 504 U . S . 719. 725. fn. 3: .'The Illinois Supreme Court has subsequently emphasized that decision in this case was not meant 'to imply that the "reverse-Witherspoon" question is inappropriate. Indeed, given the type of scru- tiny capital cases receive on review, one would think trial courts would go out of their way to afford a defendant every possible safeguard. The "reverse-Witherspoon" question may not be the only means of ensuring defendant an impartial jury. but it is certainly the most direct. l'he best way to ensure that a prospective juror would not automatically vote for the death penalty is to ask.' People v. Jackson, 145 I l l . 2d 43. 110, 582 N.E.2d 125. 156, 163 Ill. Dec. 859 (1991). See also State v. Atkins, 303 S.C. 214. 222-223. 399 S.E.2d 760. 765 ( 1990)." See also Peoplc 1,. Bittcrker ( 1989) 48 Cal.3d 1046. 1083. Well. 1 just feel that if they're - if'it's proven without a doubt that all evidence weighed and it comes down to death or life without parole, that if this - I don't even know what this case is about. Rut other than murder. I just feel that if someone has maliciously and violently and on purpose taken the life of another that they shouldn't - why should our taxpayers have to keep this person alive for the rest of their life. Who knows. I mean. it could be a 22-year old. you know. and they could be living for a long time. That's a lot of taxpayer's money. when they didn't care about the life of someone else. But I certainly would take everything into consideration before 1 came to that. But if they didn't take any consideration for someone else's life. I just don't feel that we should keep them alive just to say they're alive and have to pay for them the rest of their life. ?'he prospective juror then clarified that it was not the cost factor that led to the death judgment; "It's just why should they be alive and the other person not be alive." (3 R?' 607.) Defense counsel sought to further clarify the juror's position. He pointed out that it would be necessary to reach a first-degree murder verdict in order to get to the pe- nalty phase. "If that is the case." he asked. "are you telling us . . . that you would not con- sider life without the possibility of parole under those circumstances?" The juror ans- wered, "I don't think that I would, to be honest." (3 RT 607.) Defense counsel then challenged the prospective juror for cause. The District At- torney was allowed to examine the prospective juror in an effort to rehabilitate. In re- sponse to the prosecutor's question. the juror expressed comfort with the burden of proof beyond a reasonable doubt. as opposed to proof"without a doubt." (3 RT 608.) The Dis- trict Attorney went on to explain that the jury would hear aggravating and mitigating evi- dence, and asked if the juror could make a decision based on such evidence. The juror responded. "Yes, 1 \vould think so. I ha\,c nciier bcen in this situation before where I had to make a choice. but I \\auld certainly hope 1 could." (3 R'T 609.) Asked if the juror could listcn to mitigating ekidence and then weigh that evidence "before automatically just deciding." she responded. "Oh. yeah. I am sure I could." ( 3 RT 610.) The trial court then entered into thc questioning. The trial court explained again the process of presenting aggravating and mitigating evidence. The juror expressed an understanding of the process. The juror agreed to have an open mind, "even though," in the court's words. "you favor the death penalty." The trial court then denied the chal- lenge for cause. ( 3 RT 6 10-6 1 1 .) Despite the denial of the challenge. det-ense counsel returned to the subject. The juror acknowledged that even with a finding of first degree murder, she "could consider" life without parole as an alternative. ( 3 RT 61 1 .) Defense counsel then asked what mat- ters would make the juror consider life without parole as opposed to the death penalty. The prosecutor ob-jected. and the matter was taken up in chambers. (3 RT 612.) In chambers. defense counsel cited Morgan v. Illinois (1992) 504 U.S. 719." De- fense counsel argued that the juror had said that if there were a finding of intentional 39 "A juror who will auto~natically vote k)r the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed. because such a juror has already formed an opi- nion on the merits, the presence or absence of either aggravating or mitigating circums- tances is entirely irrelevant to such a juror. 'Therefore, based on the requirement of im- partiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views. If murder. .'[s]he is not going to spare their lifc. And that's what she said orally. 'That's what she said in the questionnaire. [TI] And I know that Mr. 1,iCalisi got her to say she would consider the alternatives. but solneone like this who is a strong supporter of the death penalty who says it' you viciously kill which I think under the theory of this case willful. deliberate. or premeditated, then she is not going to spare your life ...." (3 RT 6 13-6 14.) The District Attorney ob-jected to thc defense question. arguing that "what she might feel" is not relevant. (3 RT 614.) The trial court observed that counsel is prohibited from posing hypotheticals or discussing the facts of the case. Defense counsel disagreed, citing People v. Pinholster (1992) 1 Cal.4th 865, 913." and People v. Sanders (1995) 1 1 Cal.4th 475, 539. (3 RT 615.) The trial court pointed out that asking about what "facts or hypotheticals where you would or would not impose death" was getting into "hypothetical situations which really are not relevant." (3 RT 6 16-6 17.) even one such juror is empaneled and the death sentence is imposed. the State is disen- titled to execute the sentence." (Id. at 729.) 40 "We did say in People v. Willianzs, supra. 29 Cal.3d at page 408. that 'a question fairly phrased and legititnately directed at obtaining knowledge for the intelligent exer- cise of peremptory challenges inay not be excluded merely because of its additional ten- dency to indoctrinate or educate the .jury."' (Quoting People v. Williams (1981) 29 Cal.3d 392. 408.) Keetlun counscl then cntcred the li-a>. citing People v. Visciotti (1992) 2 Cal.4th 1 .I' He argued that the question was aimed at obtaining relevant information in jury se- lection. The trial court then decided to permit the question. but with the understanding that if the process appeared to be too time-consuming, further questioning would be curtailed. (3 RT 620-62 1 .) Back before the jury, the objection was overruled. (3 KT 622.) With the question posed again. juror no. 180007014 responded that "it would just be dependent on all thc evidence." (3 RT 623.) Asked if she regarded the defendant's 4 I [Questioning by prosecutor]: " 'If we get to the penalty phase, if we get that far, then you've already found the man guilty of first degree murder. It's a horrible crime. And you found he committed this murder while he was engaged in a robbery, based on facts that would be something like a man decides to commit a robbery, arms himself with a handgun to make sure he's successful, robs his victim. During the course of the rob- bery it occurs to him that if the victim is not alive, there won't be anybody going to the police and complain ... So. realizing that, the robber points his gun at the victim, pulls the trigger, shoots him once through the heart and kills him. " 'That's the type of facts we're going to be dealing with. something along those lines. perhaps. .' 'Do you feel just. first of all, theoretically like it's possible you could vote for the death penalty if you're faced with facts such as those?' " (Id. at 46.) " . . . Although voir dire is not a platform from which counsel may educate pros- pective jurors about the case. or compel them to cominit themselves to a particular dispo- sition of the matter. to pre-judice thein for or against a party. or to 'indoctrinate' them (see People v. Williams (1981) 29 Cal.3d 392. 408). the scope of the inquiry permitted during voir dire is committed to the discretion of the court." (Id. at 47-48.) background as a lcgitimatc consideration. thc juror said. "Not particularly." (3 RT 624.) Voir dire of this juror concluded without a renewal of the challenge for cause. 'I'he defense exercised three peremptory challenges (3 R'r 697 (seat no. 3); 3 RT 707 (seat no. 4): 3 K'T 721 (seat no. 4)) . One juror was excused for cause on the defen- dant's challenge (3 R?' 736 (seat no. 4)). The prosecution exercised one peremptory chal- lenge. (3 RT 74 1 (seat no. 8).) Juror no. 180007014 remained as "prospective juror seat number one," and was sworn with the rest of the jury. (3 RT 748.) Appellant was denied due process by the seating of a juror who had a fixed belief that the death penalty must be imposed for premeditated murder. The touchstone case for this issue is Morgan v. Illinois, supra, 504 U.S. 719. In that capital case defense counsel requested a ..reverse- witherspoon"" question on the voir dire questionnaire: "If you found Derrick Morgan guilty, would you automatically vote to impose the death penalty no matter what the facts are?" The state trial court re- fused to include the question on the voir dire questionnaire. The United States Supreme Court held that the defense had an absolute right to pose the question, and the refusal of the state trial court to pennit the question required that the judgment be set aside.43 " Witherspoon v. Illinois ( 1968) 39 1 U.S. 5 10 (although overruled in part by Wain- wright v. Witt, supra, Witherspoon stands for the general proposition that an "automatic death penalty" juror is sub-ject to challenge for cause and should not sit on a capital jury (Morgan v. Illinois. supra, 504 [J.S. at 728)). I' Note that in the present case the jury questionnaire did not include a question which directly asked whether the prospective juror would automatically impose the death penalty. Instead. the questionnaire asked whether, in the opinion of the prospective juror. the death penalty is used "too often, not enough. about the right amount, or too random- I his Court has addressed responses bj . prospective jurors which suggested atti- tudes akin to the "automatic dcath penalt!" jurors identified by the Supreme Court in Wi- tlzei-spoon and Witt. In People v. Bo~jeite (2002) 29 Cal.4th 381. this Court reviewed a capital convic- tion in which. during jury selection. a prospective juror indicated that he was "strongly in favor" of the death penalty. and would have to be convinced not t o impose it on a defen- dant found guilty of murder. (Id. at 4 17.) A challenge for cause was denied. This Court held that it was error to deny the challenge for cause. "This was not a case in which the juror gave equivocal answers: He was strongly in hvor of the death penalty and was not shy about expressing that view. He indicated he would apply a higher standard ("I would probably have to be convinced") to a lifc sentence than to one of death, and that an of- fender (such as defendant) who killed more than one victim should automatically receive the death penalty." (ld. at 41 8.) Relief was denied because the questioned juror was re- moved by a peremptory challenge. Although the defendant exhausted his peremptory challenges. he did not express dissatisfaction with the resulting jury. Accordingly. no unqualified juror sat on the trial jury. (See also People v. Hillhouse (2002) 27 Cal.4th 469. 487 [failure to exhaust peremptory challenges barred attack on denial of challenges for cause]. ) ly'?" (question no. 81). the juror ans\+ered. "Not enough - If there is proof without a doubt that a person has viciously killed another their life should not be spared." (15 CT 327 1 .) In People \%. Yeornun (2003) 3 1 Cal.4th 93. 1 14. the defense used four pereinptory challenges to excuse prospective jurors who had been unsuccessfully challenged for cause; at least two of those prospcctive jurors were challenged on Witherspoon/Witr grounds. The defense went on to exercise all of its pereinptory challenges. and declared that the remaining jury was unsatisiactory. in part because it had been forced to needless- ly exercise peremptory challenges on persons who should have been excused for cause. This Court declined to address any error in the refusal of challenges for cause. Although all pereinptory challenges were exhausted, and persons sat on the jury who were unsuita- ble to the defense, the defendant could not assert that any seated juror was legally unqua- lified. Therefore the denial of the challenges for cause could not be addressed on appeal. (Ibid. ) In People v. Ramirez (2006) 39 Cal.4th 398. a prospective juror first answered that he could consider both punishments. When questioned by defense counsel, the prospec- tive juror stated that death was "a just punishment for certain crimes.'' When asked what crimes he had in mind. he answered: "Mostly murder, I would think." He added that if the defendant were convicted of first degree inurder and found to be eligible for the death penalty, he would vote to impose the death penalty unless he were convinced otherwise.'' (Id. at 447.) On appeal the defendant argued that his right to a fair jury under Withers- ,!700!7 and Wit/ had been compromised. 'l'his Court held that the claiin had been waived on appeal. because the questioned juror had been removed by a peremptory challenge. and the defense had not exhausted its peremptory challenges. In addition. there was suf- ficient evidence to support the denial ol'the delknse challenge for cause. The prospective juror assured the court multiple times that he would not automatically vote for the death penalty and would. instead. reach a decision based upon all of the evidence. In the prcsent case. the challenge for cause was improperly denied. Juror no. 1800007014 indicated in writing that in cases of malicious murder. the defendant's life "should not be spared." (1 5 C?' 327 1 .) Questioned orally, the prospective juror indicated that although she would consider all the evidence, the murderer should not be kept alive. She further clarified that her concerns had to do with fundamental fairness, not with the cost to the state. (3 R'T 606.) Questioned further. the prospcctive juror stated that she could listen to all the evi- dence and consider the alternative of life without parole. (3 RT 6 10-61 l .)44 However. she never abandoned her firmly held belief that death is the only appropriate punishment for murder.15 In these circumstances. the juror's preconceived attitudes were guaranteed to "prevent or substantially impair the performance of [her] duties as a juror in accor- See Nancr v. State (Ga. 2000) 526 S.E.2d 560 [Trial court erred in failing to excuse for cause a prospective juror whose answers to voir dire questions clearly showed that she would always vote for death if defendant was convicted of murder and the jury found an aggravating factor. Although the trial court told the juror the sentencing options and asked her if she could listen to the law and the facts and choose the appropriate sen- tence, to which she replied affirmatively, i t was clear from her other responses that the juror believed the appropriate sentence would always be a death sentence. The death sen- tence was therefore reversed.] l5 See People v. Gardner (1 984) 15 1 Cal.App.3d 134, 142 (Franson, J . conc.): "Every juror who admits an original bias usually can be rehabilitated by adroit question- ing by opposing counsel and the court -- all of which is mere window dressing, i.e.. an attempt by the juror to cover up the originally revealed bias." dancc ~ . . i t h [her] instructions and [her] oath." (Wu in~ , r ig l~ t I?. Witt, supra.) I t was an abuse of discretion to deny the defense challenge for cause. Even if the juror's voir dire testimony is viewed as equivocal, the lack of a clear statement of impartiality undermines the trial court-s finding that the juror was quali- fied."" The issue was not waived on appeal. because an unqualified juror was seated on appellant's jury. (People v. Yeoman, supra.) Even though the juror could have been re- moved by a peremptory challenge. the defense did not use a peremptory challenge on this juror. With the seating of this juror. appellant was sure to be judged by a juror who was predisposed to a death verdict. Accordingly. appellant was prejudiced by the denial o f the defense challenge to this juror. 46 See White v. Mitchell (6th Cir. 2005) 43 1 F.3d 5 17. 542: "With a transcript reflect- ing statements as internally inconsistent and vacillating as these, including numerous statements of strong doubt regarding i~npartiality and merely a few tentative or cursory statements that she would be fair. [the juror] was simply unbelievable as an impartial ju- ror. Despite the deference usually owed to trial judges. we conclude that nothing about [the juror's] demeanor could cure the weighty concerns raised by her voir dire testimony. Accordinglq. we find that the trial judge's failure to excuse [the juror] and the Ohio Su- preme Court's finding that the trial court did not abuse its discretion in failing to strike [the juror] uere contrary to or an unreasonable application of Supreme Court precedent." 111. IT WAS ERROR TO DENY DEFENSE CHALLENGES TO TWO SWORN JURORS, ONE OF WHOM KNEW VICTIM CHUCK DURBIN'S BROTHER RANDY, AND ONE OF WHOM WAS FORMERLY RELATED BY MARRIAGE TO DURBIN'S MOTHER. After the jury was sworn. inf'ormation came to light that cast doubt on the impar- tiality of a juror who knew Randy Durbin. There was good cause for the removal of the juror and replacement with an alternate juror. and it was an abuse of discretion to refuse the defense request to have her replaced. A juror's failure to disclose in voir dire information indicating bias may result in a denial of due process for failure to remove thc juror when the information later coines to light. (Williams v. Taylor (2000) 529 U.S . 420. 442 [a trial juror failed to disclose that she had once been married to a deputy sheriff who was the prosecution's lead witness, and also failed to disclose that the prosecuting attorney had represented her and the deputy sheriff in their divorce: the defendant was entitled to the opportunity to demonstrate that the juror was "not impartial"]; Smith v. Phillips ( 1 982) 455 U.S. 209, 2 17, 2 19-22 1, [a juror failed to disclose that he had an employment application pending with the prosecu- tor's oftice; defendant entitled to opportunity to demonstrate bias].) Prospective juror no. 180002598 was ultimately seated as juror number nine. In her questionnaire she indicated that the death penalty was the only appropriate punish- ment for inurdcr: "I useldl to bclievc you shouldn't take a life --- but a lot of violent criminals that are in prison for life & no parole are getting out. I feel now if they are proven guilty for a violent killing the punishment should be death." She also indicated that thc death penaltc is not used enough: "people are getting out on lesser sentences... (14 CT 3063.) She indicated that several friends and relatives were employed in law en- forcement or the prison system. ( 14 C1' 305 1 .) On questioning by the trial court. the prospective juror indicated that she would not automatically vote for the death penalty. (3 RT 598.) She volunteered that she per- haps should not be on the jury because her family worked in corrections, "and I wouldn't want any harm coming to them because I am a juror." (3 RT 599.) The trial court assured her that her name would not become known. (3 RT 599.) On September 8, 1998, after the jurors and alternates were sworn, the trial court indicated that two jurors had "come forth.'' Juror no. 173558182. seated in seat number twelve, had announced that she was fbrrnerly the sister-in-law of Ginger Colwell, the mother of victim Chuck Durbin. In addition, juror no. 180002598, seated in seat number nine, had indicated that she was acquainted with Randy Durbin, the victim's brother. (4 R?' 846.) Juror no. 173558 182 was called into court. She indicated to the court that her sis- ter-in-law's brother had been married to Ginger Colwell. The juror had not spoken to Mrs. Colwell for 15 or 20 years. (4 K?' 849.) No challenge was made to the continued service of this juror. The attorneys commented that Randy Durbin's name was mentioned orally during voir dire. though his name was not on the witness list. (4 RT 849-850.) Juror no. 180002598 was then called into the courtroom. She indicated that Randy Durbin was her instructor in water aerobics about four years earlier. Currently, her husband was taking a course taught b\ Itand! Ilurbin at Madera College. (4 RI' 8 5 0 . ) She indicated that the relationship nith Rand! Durbin 11.ould not al'fect her judgment in the penalty phase. (4 K'I 851.) D e t n s c counsel then asked that the juror be excused and replaced with an alter- nate. He recalled that due to her close connection with law enforcement. "it was a very close question whether we were going to use a peremptory challenge." He noted that "it seems rathcr incredible" that her relationship with Randy Durbin did not come out on voir dire. He asked that the court "reopen the issue of jury selection." (4 RT 852.) The trial court noted that the on11 remedy was to disqualify her, and replace her with an alternate. The prosecutor underlined the rule that the defense had lost its oppor- tunity to use a peremptory challenge. The trial court then indicated that it did not find that she should be disqualified. The court noted that they "went to the same gym" four year earlier. Although her husband currently went to a class taught by Durbin, "[tlhere's no relationship there whatsoever." It was understandable that she would not bring it up in voir dire. (4 K'I' 853.) Defense counsel then asked to exercise a challenge for cause, because the juror had failed to bring up this information during voir dire. (4 RT 854.) The trial court denied the defense motions. The court found a lack of any personal relationship. and no indication of bias or prqjudice. (4 RT 855.) In the penalty phase of the trial Rand! Durbin testified that he depended on Chuck as a 1Bther tigure. (10 K I 2393.) He ~nisscs his brother. and has had a hard time being close to people since the shooting. ( I O R 1 2403 .) '1-hc trial court impropcrlj denied the defense request to disqualify juror no. 180002598. Randy Durbin was a ma.jor victim impact witness. and the relationship be- tween hiin and the juror. lately divulged. required that she be excused. The trial court correctly tiwnd that with the close of'voir dire. the defense could no longer exercise challenges to the jurors. They could. however. be removed for good cause. In repealing former Penal Code section 1068. the Legislature did not replace it with a siinilar provision authorizing the reopening of jury selec- tion after the trial jury has been sworn. Instead, it added Code of Civil Pro- cedure sections 226 and 23 1. Subdivision (a) of section 226 provides: "A challenge to an individual juror may only be made before the jury is sworn.'' (Italics added.) Subdivision (d) of section 23 1 then explains: "Pe- remptory challenges shall be taken or passed by the sides alternately, com- mencing with the plaintiff or people; and each party shall be entitled to have the panel full before exercising any peremptory challenge. When each side passes consecutively, the jury shall then be sworn, unless the court, for good cause. shall otherwise order." (Italics added.) Here, both sides consecutively passed their peremptory challenges, and the jury was sworn. (Code Civ. Proc., 8 23 1 , subd. (d).) At this point, by its terms. section 226, subdivision (a) barred the court from reopening jury selection and permitting further peremptory challenges. (See also People v. Hernandez (2003) 30 Cal.4th 1 , 12 (conc. opn. of Werdegar, J.) [reopening voir dire and permitting a party to exercise additional perempto- ry challenges violates Code Civ. Proc.. $ 226, subd. (a).]) Under the plain language of the applicable statutes, the trial court could discharge Juror No. 12 only if there was good cause for his removal. (Code Civ. Proc., $5 233 & 234; Pen. Code. $ 1089.) [fn.] (People v. Cottle (2006) 39 Cal.4th 246. 254-255.) l'he trial court abused its discretion by not tinding good cause to remove the juror in these circumstances. The juror here expressed doubt about whether she should be on thc jury. In her mind. there was a risk of retaliation to her family members in the prison system if she should vote for death. From thc defense perspective. this translates into a strong bias against criminal defendants in general - better to execute them. or keep them in prison. than have them in a position where they could harm the juror herself or her family. Moreover. in her questionnaire she expressed an "automatic death penalty" posi- tion which alone could have disqualified her. ?'he trial court asked a leading question which rehabilitated the juror as a matter of form. Nevertheless. in the eyes of the defense she presented as a person who might not consider evidence in mitigation at all. (See dis- cussion in Argument I1 above.) This juror's previously undisclosed relationship with one of the victims4' was enough to disqualify her. and it was an abuse of discretion to leave her on the jury. Moreover, the trial court should take into account the entire record of the voir dire in de- ciding whether to disqualify a juror on the basis of recently-discovered information. Iiere. the trial court isolated the new information and did not consider it in the context of the earlier voir dire. Even taken out of context. new information indicating a personal relationship be- tween the juror and victims or witnesses should be enough to disqualify the juror. In Conawa-v v. Polk (4th Cir. 2006) 453 F.3d 567. 584-585. the court reviewed a state pro- ceeding in which a juror was alleged to be a "double first cousin" of an essential prosecu- J 7 lJnder the familiar definition of "victim impact." Randy Durbin was a victim. tion witness. Thc federal court I'ound the concealment of this infbr~nation to be a viola- tion of the Sixth Amendment. Turning to the merits of the Juror Bias claim, we conclude that the MAR["] Court's denial of MAR I involved an unreasonable application of clearly established federal law as determined by the Supreme Court. The text of the Sixth Amendment mandates that "[iln all criminal prosecutions, the accused shall enjoy the right to a . . . trial[] by an impartial jury." U.S. Const. amend. VI. And the Supreme Court has long recognized that the Sixth Amendment prohibits biased jurors fiom serving on criminal juries. See United States v. Wood, 299 U.S. 123. 133. 57 S. Ct. 177, 8 1 L. Ed. 78 (1936) (recognizing Sixth Amendment's text prohibits partial jurors, whether bias is 'bactual or implied"). The Court has explained that a juror's bias may be established by showing (1) that the juror "failed to answer ho- nestly a material question on voir dire"; and (2) that "a correct response [to that question] would have provided a valid basis for a challenge for cause." See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845. 78 L. Ed. 2d 663 (1984) (the "McDonough test"). [fn.] Addi- tionally. a litigant must show that the fairness of his trial was affected either by the juror's "motives for concealing [the] information" or the "reasons that affect [the] juror's impartiality." Id. [fn.] (See also Andrews v. Collins (5th Cir. 1994) 21 F.3d 612 [where it is discovered that a juror is a close relative of one of the participants in the trial or the criminal transaction, a finding of implied bias would be justified].) This Court has declined to tind an abuse of discretion in cases involving later- discovered evidence of possible juror bias. However this Court's previous cases have not involved information as germane to the penalty determination as we see in the present case. In People v. Holt ( 1997) 15 Cal.4th 6 19. the Court reviewed a capital conviction in which a seated juror revealed that his son had been arrested for burglary in connection MAR refers to state post-conviction non-appellate relief. similar to habeas corpus. with the entry of an apartment owned b the juror but occupied by a renter. The Court found no connection to the case on trial. and no basis for a finding of bias. "The circurns- tances are simply not comparable to those in the decisions on which defendant relies in some of which jurors \\ere cxcused and the defendant colnplaincd of that on appeal. (See People v. Morris ( 199 1 ) 53 C'al.3d 152. 154 [sanie deputy district attorney had prosecuted juror]; People v. Willia~?zs ( 1 988) 1 99 Cal .App.3d 469 Ljuror personally facing prosecu- tion in case filed by same deputy district attorney]: People v. Farris (1977) 66 Cal.App.3d 376 [juror facing current criminal charges, had past charges and attitude]; In re Devlin (1 956) 139 Cal.App.2d 810 [juror charged with felony did not believe he could be fair].)" (Id. at 659-660.) Similarl). in People v. Ray ( 1 996) 13 Cal.4th 3 13. 343. this Court found no abuse of discretion in the trial court's decision not to inquire further into a question of possible bias. The juror in that case wrote a note indicating that he was familiar with the daughter of a victim. a student at a high school where the juror worked as a guidance counselor. The Court interpreted the record as suggesting no direct relationship between the juror and the victim's daughter. The present case is more similar to cases such as C'onaway v. Polk, supra, in which the juror had some substantial relationship to the witness. It would be particularly difficult for the average person to set aside an acquaintanceship with a victim. in a case in which the prosecution case f'or the death penalt~ \\as based so heavily on victim impact. The juror here had two substantial social contacts with Randy Durbin, and could expect further contacts uith him in the future: it \\auld be particularly difficult for the juror to face a victim1 acquaintance if the juror \?/ere to fail to vote for the death penalty. l'aken together with the juror's own expression of potential bias during voir dire. there was good cause to excuse her. and it was an abuse of discretion to deny the defense request. IV. THE RECORD CONTAINS INSUFFICIENT EVIDENCE OF PREMEDIATION TO SUPPORT THE CONVICTION ON COUNT I, MURDER OF CHUCK DURBIN. According to the prosecution casc. appellant rushed into the home of Chuck Dur- bin, a pcrson he did not know. stumbling drunk. When Durbin unexpectedly confronted him. appellant shot him. This evidence does not establish premeditation and deliberation. Count One must be reduced to second degree murder. and the death judgment must be set aside. Rule. The suf'ficiency of evidencc of premeditation depends on evidence of plan- ning activit~. or evidence of motive and manncr of killing. 1'0 evaluate this claim. we must "examine the entire record in the light most favorable to the judgment to determine whether it contains sub- stantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt." (People v. Lewis (2001) 25 Cal.4th 6 10. 642; see People v. Johnson (1 980) 26 Cal.3d 557, 578.) Three catego- ries of evidence are helpful to sustain a finding of premeditation and delibe- ration in a murder case: (1 ) planning activity; (2) motive; and (3) manner of killing. (People v. Anderson ( 1968) 70 Cal.2d 15, 26-27; see also People v. Welch (1999) 20 Cal.4th 701. 758.) Evidence of each of the Anderson fac- tors need not be present in order to support a finding of deliberation, but planning. or inotive in conjunction either with planning or with manner of killing. must be present to support such a finding. (People v. Hawkins (1995) 10 Cal.4th 920. 956-957. overruled on other grounds by People v. Blakelej) (2000) 23 Cal.4th 82. 89-91 .) A judgment will not be reversed so long as there is substantial evidence to support a rational trier of fact's con- clusion that the murder committed was premeditated and deliberate. (People v. Perez ( 1992) 2 Cal.4th 1 1 1 7, 1 126- 1 127: People v. Sanchez ( 1864) 24 Cal. 17. 30 (Sanchez).) (People v. Sun NI'CO~US (2004) 34 Cal.4th 614. 657-658.) l3y this settled authorit). the Inanner ol' killing alone M. i l l not support a iinding of prelne- ditation; tliere must be evidence of planning. or evidence of motive in conjunction with planning or manner of killing. 'I'he reviewing court must re vie^ the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evi- dence which is reasonable. credible. and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. A lack of sufficient evi- dence on any element is a denial due process under the Fifth and Fourteenth Amendments to the United States Constitution. (Jackson v. Virginia (1979) 443 U.S. 307, 326; People v. Johnson (1980) 26 Cal.3d 557, 578; see In re Winship (1970) 397 U.S. 358, 364, "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.") Due process is denied when the elements of willfulness and deliberation are col- lapsed into the single element of premeditation, and when the element of premeditation is satisfied by evidence of a sudden intention. as "instantaneous as successive thoughts of the mind." (Polk v. Sandoval (9th Cir. 2007) 503 F.3d 903. 91 1 .) Factual and Proced~rral Backgrozind In the guilt phase of the trial Richard Diaz testified that during the barbecue in the hours before the shooting, appellant talked of "getting back" at the person who had shot his son in the head. Appellant was drinking Presidente brandy. and was too drunk to drive. ( 5 R'l' 1262- 1264.) Appellant set out in a car dt-i\.en by Kat'ael Avila. accompanied by Richard D i a ~ and Little I'cte. l'heq looked for Juan LJribe. first at his house. then in the direction of Chris Castancda's house. 'l'hcy came upon IJribe's car by happenstance. parked across the street from the Durbin house. Diaz tcstiiied that he did not know the Durbins and had never been to their house; there was no evidence that anyone in appellant's group knew anyone in thc Durbin family. ( 5 R'1' 1267-1 268.) According to Diaz. Little Pete went into the house holding the .22 rifle; Big Pete held the .380. ( 5 RT 1269- 1270.) The shooting began moments later. The forensic evi- dence indicated that Juan Uribe was killed by six small caliber gunshot wounds (presurn- ably .22 caliber). (4 RI' 983-986.) Chuck Durbin was shot to death when he ran into his living room. Durbin suf- fered seven gunshot wounds. Four of the wounds were to the trunk of the body, and were inflicted by a sinall caliber weapon, a .22. (4 RT 967-969.) There were three large caliber (.38 or .380) wounds, one to the neck. one to the lower back. and one to the right side of the head. (4 RT 970-974.) The pathologist. Dr. Stephen Avalos. testified that the smaller caliber wounds may have been inilicted before the large caliber head wound, inasmuch as they caused aspira- tion and swallowing of blood. which would only have occurred prior to the fatal head wound. (4 R?' 975-976. 992.) The bullet tracks gave no indication of where the victim was positioned at the time of the shots. (4 RT 996.) Fabric fragments were Sound in Durbin's neck wound. In the opinion of the pa- thologist. the presence of the fibers could have suggested that the victim's head was near the carpet when the fatal shot was fired. however without a comparison to the carpet ma- terial. such a conclusion would be "total conjecture." (4 RT 998.) Nancy McCornb. a criininalist with the California Department of Justice in Fresno. examined the fibers taken fioin Durbin's neck wound. She concluded that the fibers were too long to be carpet fibers. The fibers could have been stuffing from a jacket, but no comparison was madc. (7 K'I' 172 1 .) Richard Diaz testified that he saw a man. assumed to be Chuck Durbin, run into the living room as appellant and his son entered. He saw appellant grab Durbin, put the gun to his chest, and shoot him. (5 RT 1273.) 'The jury was instructed on premeditated murder, in the language of CALJIC 8.20: All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. The word "willful," as used in this instruction, means intentional. The word "deliberate" means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word "premeditated" means con- sidered beforehand. If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation. so that it must have been formed upon pre- existing reflection and not under a sudden heat of passion or other condition precluding the idea ol'deliberation. it is murder of the first degree. 'Ihe law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. l 'hc true test is not the duration of time. but rather the extent of the rellcction. A cold. calculated judgment and decision may be arrived at in a short pcriod of' time. but a mere unconsidered and rash impulse, even though i t includes an intent to kill. is not deliberation and premeditation as will fix an unlawful killing as lnurder of the first degree. '1'0 constitute a deliberate and premeditated killing. the slayer must weigh and consider the qucstion of killing and the reasons for and against such a choice and, having in mind the consequences. he decides to and does kill. There was no jury instruction on felony murder. In argument to the jury. the District Attorney placed little reliance on premedita- tion as to Count I. the killing of Chuck Durbin. After all. all that was required for the special circumstance was one count of first degree murder, and one count of second de- gree murder.'" The prosecutor argued. incorrectly. that as to premeditation in general, it was enough that the killing was accompanied by '.clear and deliberate intent to kill." (9 RT 2124; see Argument XII, below.) As to the killing of Chuck Durbin, the prosecutor ar- gued that "there's clearly express malice.'" based on the number of gunshot wounds. (9 RT 2 127.) He pointed out that in the opinion of the pathologist. the shots fired from the larger weapon came after the shots fired fiom the 2 2 . "[Tlhat's what they were there for'' - to kill. "Chuck Durbin got in the way. and they killed him." (9 RT 2128.) The 4 9 "You have the special circu~nstances allegation in this case. And you are going to be instructed on that. That's basically if you find that one of these murders is a first de- gree murder and the other lnurder is either first or second degree murder. then that allega- tion is true and you must find. So very simple. One first and the other first or second, the allegation is true." (9 RT 2 128.) prosecutor's argument did not acknowledge or discuss the elements of premeditation. in- . . cluding "pre-existing reflection, set forth in the jury instruction Most of the defense argument was devoted to the question of identity, and whether it was actually Jesse Kangel and/or Richard Diaz who were responsible for the shootings. (9 R1' 2 158-2206.) Reluctantly. defense counsel also addressed the question of whether. assuming identity, the two murders were premeditated. He argued that appellant's intox- ication could be considered on the issue of premeditation. (9 RT 2200-2201.) None of the defense argument was addressed to the circumstantial evidence, or lack of evidence. on the element of premeditation and deliberation. None of the defense argument ad- dressed the possibility that the Durbin homicide was not premeditated even if the Uribe homicide was premeditated. The prosecution closing argument was devoted entirely to the identity issue. There was no further discussion of premeditation. (9 RT 2207-2235.) Analysis. This record lacks sufficient evidence to sustain a verdict of premeditated murder in the killing of Chuck Durbin. The planning of this offense was directed entirely at killing Juan Uribe. None of the planning. such as it was. had anything to do with the killing of innocent bystanders. 'l'he motive for the killing of Juan Uribe had to do with the prior sniping between the factions of Little Pete and Uribe. Chuck Durbin was not known to appellant or any of his associates. Contrary to the arguinent of the District Attorney. there was no motive for appellant to hill everyone in the house. or e\cryonc ciho got in the way. or indeed anyone other than Juan ~ l r i b c . ~ ~ ' According to the testimony of Richard Diaz, as they drove away from the scene. appellant said that he '.got that guy that h a s going for the gun.. . . I l e said that he shot that guy because he thought he was running to get a gun." ( 5 RT 1278.) This statement does not establish premeditation because it indicates a response to the victim's actions. not a planned assault. An honest but unreasonable belief in the ne- cessity for self-defense does not establish a motive for murder. To the contrary, it is a partial or imperfect defense to murder. (People v. Flannel (1979) 25 Cal.3d 668; In re Christian S. (1994) 7 Cal.4th 768; see People v. Randle (2005) 35 Cal.4th 987 [imperfect self defense of others]; and see People v. Quach (2004) 116 Cal.App.4th 294 [imperfect self defense available to initial aggressor].) Moreover, to the extent that the jury disbelieved appellant's statement as quoted by Diaz, this does not provide evidence that appellant had some motive other than self- defense. "Disbelief of a witness' testimony does not create affirmative evidence to the contrary of that which is discarded." (People v. Jimenez (1978) 21 Cal.3d 595, 613.) The manner of killing must be "particular and exacting." That is, the manner of killing must be so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life in a particular way 50 See comment of'trial court after guilty verdict: "... He [Durbin] wasn't the target of the ot'f'ense. He h a s a victim of'circumstances." (10 R1' 2338.) fbr a rcason which the jury can reasonabl~, infer fi-om Sacts related to planning and mo- tive. (People v. Anderson, suprcr, 70 Cal.2d at 27.) 'The most that can be said is that appellant shot Chuck Durbin three times, assum- ing that thc .380 tired the fatal bullets and that he was the person who wielded the .380. In the opinion of the autopsy surgeon. the head wound may have come after Durbin was shot with the .22 rifle." This was not a -'particular and exacting" means of killing. There 5' The body of Chuck Durbin disclosed seven distinct gunshot entrance wounds. These were numbered 1 through 7, for convenience and not in the order of oc- currence, except that because of the aspiration of blood the smaller wounds to the trunk probably proceeded the larger wounds to the head. (4 RT 976.) No. 1 was a small caliber wound to the lower right side of the back. It did not pe- netrate the body cavity, and the slug was recovered from soft tissue on the lower left side of the back. No. 2 was also small caliber, and entered higher and more toward the front of the body. This bullet lacerated the liver, and was recovered from the lower bone of the thoracic spine. No. 3 was also small caliber. It entered the front right upper chest, perfo- rated the right lung, and was recovered form the 8th level of the thoracic spine. No. 4 was also small caliber. I t entered just above No. 3. grazed the upper lobe of the right lung, and exited through the back upper ribs. It was recovered from the soft tissue of the upper back. (4 RT 967-969.) Stippling was found around wound No. 4, indicating that the gun muzzle was six inches to three feet from the wound. (4 RT 982.) No. 5 was a larger caliber wound. I t could have been a .38 or a .380; the diameter of these bullets is indistinguishable, and they cannot be distinguished based on holes in the skin. (4 RT 995.) No. 5 entered on the lower right side of the neck toward the front of the body. It damaged no ma-jor blood vessels and exited from the lower right of the back. That bullet was not recovered from the body. (4 RT 969.) No. 6 was also a large caliber wound. .38 or .380. It entered on the right side of the head. above the right ear. It struck the skull at a tangential angle. but it fractured the skull and caused bleeding into brain tissue. I t exited just in front of the right ear, and the bullet was not recovered from the body. Oddly. a wad of "fiber type material" was "blown back" several inches into the wound. (4 RT 970-972, 997.) The criminalist con- cluded that the fibers recovered from the neck wound of Chuck Durbin were too long to be carpet fibers. They could be stuffing from a jacket. but no positive identification was attempted. (7 RT 172 1 .) was no ebidencc that appellant set about to kill Durbin according to a plan or with an) ob-ject or motikc. in mind. This Court has observed that evidence of a gunshot tired to the head or neck at close range is "arguably sufficiently 'particular and exacting' to permit an inference that defendant was acting according to a preconceived design." (People v. Caro (1988) 46 Cal.3d 1035. 1050.) IIowever, in this context it is more accurate to say that a shot to the head or neck "evince[s] a calculated and deliberate design to kill." (People v. Morris (1988) 46 Cal.3d 1. 23.) Intent to kill alone does not establish premeditation. Even a calculated, deliberate. intentional killing is not necessarily a premeditated killing, for it may well lack the element of "careful thought and weighing of considerations for and against," or any form of "pre-existing reflection." (CALJIC 8.20.) "'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] "Deliberation" refers to careful weighing of con- siderations in forming a course of action; "premeditation" means thought over in ad- vance. [Citations.] "The process of premeditation . . . does not require any extended pe- riod of time. "The true test is not the duration of time as much as it is the extent of the ref- lection. Thoughts may follow each other with great rapidity and cold, calculated judg- ment may be arrived at quickly ....' [Citations.]"'" (People v. Halvorsen (2007) 42 No. 7 entered in the lower left back. and exited the lower mid back. A bullet asso- ciated with this wound fell out ofthe victim's clothing. (4 RT 974.) Cal.4th 379, 4 19. quoting Peoplp v. Koontz (2002) 27 Cal.4th 104 1 , 1080; emphasis add- ed.) A shot to the head or neck is a very quick and certain way of committing homi- cide. Ilowever much i t bespeaks an intentional means of killing. it does not alone estab- lish premeditation. A shot to the head or neck may be entirely consistent with "a sudden heat of passion or other condition precluding the idea of deliberation." (CALJIC 8.20.) ?'he Anderson triad of' planning. motivation. andlor exacting manner of killing is not meant to be a straightjacket for the reviewing court. l'he Anderson guidelines are "descriptive and neither normative nor exhaustive." and .'reviewing courts need not ac- cord them any particular weight." (People v. Halvorsen, supra, 42 Cal.4th at 420, citing People v. Young (2005) 34 Cal.4th 1 149. 1 183. and People v. Perez (1992) 2 Cal.4th 1 1 17, 1125.) Having said that, there yet must be something in the record to rest the judgment on. The Anderson factors may not be ignored; if they are lacking there must be sorne- thing to take their place. or the finding based on premeditation and deliberation must be reversed. The reviewing court must be able to point to some evidence of premeditation either within or without the Anderson guidelines to support a first degree murder convic- tion. In the present case further search of the record leads to no information to add to the calculus of premeditation. Appellant was preoccupied by the need or impulse to reta- liate for the attempted killing of his son. No significant police investigation took place after Little Pete was shot in the head on September 24, 1995, so appellant must have felt that he was ]ell to his own devices. All indications pointed to Juan Uribe as the responsi- ble party. Nothing pointcd to Chuck Durbin. he was nothing but an innocent bystander. Beyond that. appellant was drunk. He acted completely out of character, in the grip of hatred and passion. the opposite of' the reflective state of mind necessary to care- L. fully weigh the considerations for and against the killing. (Compare People v. Marks (2003) 3 1 Cal.4th 197. 232: "The 'calm.' 'cool,' and 'focused' manner of a shooting also supports the finding of premeditation and deliberation.") Normally. appellant was a ma- ture man, a husband and father. employed long term. with no evidence of prior violence in his personal history. These circumstances do not explain or excuse his conduct, but neither do they lend support to the hypothesis of premeditation. The jury had every reason to feel sympathy for Chuck Durbin and his family. As an innocent bystander he might be considered uniquely deserving of the law's protection, especially in comparison to appellant's indirect role in the death of Juan Uribe. who at least contributed to the chain of events leading to his own death.52 These circumstances suggest sympathetic and emotional reasons for the jury to go beyond the bounds of the evidence to find premeditation in the killing 0f'Chuck Durbin; in the absence of sufficient evidence of premeditation. such considerations cannot support the judgment on review. Prejudice. The lack of sufficient evidence of premeditation requires that the con- viction on Count One be rcduced from first degree to second degree murder. See Penal Code 3 190.3 (0. concerning the penalty determination: "Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct." '['his does not automaticallq invalidate the death penalty. since the multiple murder special circumstance and the death judgment may rest on a conviction of one count of first degree inurder and one count of second degree murder. (Penal Code # 190.2 (a)(3); People v. Hulvorsen, supru. 42 Cal.4th at 43 1 .) However. the prejudicial effect of a misunderstanding on the critical element of premeditation requires that the death judgment be set aside. Premeditation is a circums- tance of the crime (Penal Code tj 190.3 (a)). As a circumstance of the crime, the presence of premeditation is a factor in aggravation5': its absence makes the imposition of the death penalty far less likely. For these reasons the insufficiency of the evidence of premeditation requires that the judgment be modified to second degree murder on Count One, and that the death judgment be set aside. " See 28 U.S.C. 3 848(n)(8). Under that provision the government may prove, as an aggravating factor for the death penalty, that "the defendant committed the offense after substantial planning and premeditation." (United States v. Flores (5th Cir. 1995) 63 F.3d 1342. 1373.) V. THE RECORD CONTAINS INSUFFICIENT EVIDENCE T O SUPPORT THE FINDING OF PERSONAL USE O F A FIREARM AS TO COUNT 11, MURDER OF JUAN URIBE. According to thc cvidence and argument presented by the prosecution, appellant was an aider and abettor to the murder of Juan Uribe. ?'he prosecution claim was that ap- pellant went to the Ilurbin house. armed. to assist his son in a firearm attack on Juan Uribe. However. appellant did not personally use a firearm in the murder on Juan Uribe. His conviction for personal firearin use as to that count must be reversed for insufficient evidence. The reviewing court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evi- dence which is reasonable, credible. and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307,326; People v. Johnson (1980) 26 Cal.3d 557,578.) "There are no precise formulas, or particular fact patterns to follow, to determine whether a gun has been 'used' for purposes of a sentence enhancement." (Alvarado v. Superior Court (2007) 146 Cal.App.4th 993. 1002.) In People v. Walker (1988) 47 Cal.3d 605, 635, this Court found no error in a fail- ure to fully instruct on firearm use under Penal Code $ 12022.5. In that ease, the defen- dant used a lirear~n to herd the victims into the back room of a store, where the co- defendant shot and killed one of the victims. The defendant's own gun use was not found to be so separate ti-om the fatal shooting to relieve the defendant from liability under the gun use enhancement." In People v. Lerrna ( 1996) 42 Cal.App.4th 122 1. 1226. the court reviewed past holdings on uxapons use enhancements. and fi)und that there is a necessary nexus be- tween the defendant's own gun use and the death of the victim. in order to justify the gun use enhancement. [?']he defendant's use of the weapon need not be the cause of the death of the victim in order for a weapon use finding to be upheld. This is entirely consistent with views taken by this court. and others, as to the meaning of the word "use." In People v. Poindexter (1989) 210 Cal.App.3d 803. to which Lerma calls our attention. this court held, in another context, that "use" means that there must be "a nexus between the offense and [the item at issue] . . . [that the item] was . . . an instrumentality in the crime." (Id. at p. 808.) Other decisions have referred to "conduct which produces a fear of harm or force by means or display of a [weapon] in aiding the commission of [the crime]. 'Use' means . . . to 'make instru- mental to an end . . .' and to 'apply to advantage.' . . . The obvious legisla- tive intent to deter the use of [weapons] in the commission of [crimes] re- quires that 'uses' be broadly construed." (People v. Chambers (1972) 7 Cal.3d 666. 672.) (Ibid.) " Walker. like the other cases cited herein. was decided under a regime that required no jury findings. as a matter of constitutional law, for an additional sentence for the fire- arm use enhancement. l h e jury trial requirement was solely a matter of California statu- tory law. See People v. Wims (1995) 10 Cal.4th 293, 304, citing McMillan v. Pennsylva- nia (1986) 477 U.S. 79. That rule has changed; the firearm use finding is now subject to the jury trial guarantee under the Sixth Amendment to the United States Constitution. Since any finding which increases the maximum sentence is sub-ject to jury trial under the Sixth Amendment (United States v. Booker (2005) 543 1J.S. 220; Cunningham v. Cali- fornia (2007) 127 S.Ct. 856). the jury trial requirement now attaches to firearm use en- hancement findings as a matter of constitutional law. Pcoplc t-. Lerma, s~rpr*u, mas later cited ~vith approval in Peoplc v. Jones (2003) 30 Cal.4th 1083. 1 120. which observed that. "If two robbers display guns to intimidate rob- bery victims and one shoots and kills a victim. both robbers could be round to have per- sonally used a gun in the robbery and thc t'elonq murder. even though only one is the ac- tual killer." Therefore. the rule for i~nposition of'the personal firearm use enhancement in Cali- fornia includes a "nexus" or proximate cause requirement: even i f the co-defendant fired the fatal shot, the defendant's personal use of another tireann may support the enhance- ment. if'. but only if. the defendant's gun use was a causative factor in the murder. In the information tiled August 13. 1996. appellant and his son were charged with the murder of Chuck Durbin (Count I). the inurder o f Juan Uribe (Count 11), the premedi- tated attempted murder of Richard Fitzsimmons (Count III), the premeditated attempted murder of'Cindy Durbin (Count IV), and firing at an inhabited dwelling house (Count V). It was further alleged that in the cornmission of "the above offense," the named defen- dants used firearms; this enhancement allegation followed Count V. (7 CT 1605.) Evidence was introduced concerning tirearm use in the offenses. Richard Diaz testified that when the car stopped near the Durbin house. Little Pete got out carrying a .22 rit-le. and appellant got out carrying a .380 automatic handgun. (5 RT 1269.) From his vantage point outside the house. Diai. claimed to have seen appellant shoot Chuck Durbin. (5 R?' 1273.) According to Diaz, as they drove off Little Pete said that he had shot Juan Uribe. ( 5 RI' 1277.) The crime scene investigation yielded .22 casings scattered around the house. (4 K'T 934-940.) Juan Uribe sufkred six small caliber gunshot wounds. all consistent with a .22 caliber, and three .22 slugs were recovered from his bod).. (4 RT 983-986.1~~ Chuck Durbin suffered seven gunshot wounds. Four were small caliber, and three were large caliber. consistent with a .380. (4 RT 969. 974. 982.)'" In Jesse Rangel's version. attributed through a statement of Little Pete while they were at the house in Fresno, Little Pete shot Juan Uribe, and appellant shot Chuck Dur- bin. ( 6 R1' 150 1 .) Counts 111 and V were subsequently dismissed, so that when the charge went to the jury. the paragraph alleging the use of a firearm in the commission of "the above of- fense" followed the charge of attempted murder of Cindy Durbin. The jury acquitted appellant of attempted murder of Cindy Durbin. (1 1 CT 2387.) No. I entered the lower right chest. perforated the right lung, the heart, and the left lung. The slug was recovered from the lefi chest. No. 2 entered the right back shoulder blade, traversed the lung and was recovered from an upper spine bone. No. 3 entered the right ear, traversed the brain. and was recovered from the left frontal lobe. (4 RT 983.) No. 4 grazed the right ear lobe. entered the right cheek, traversed the underside of the skull. and exited the left nostril. That slug was not recovered. No. 5 entered the right side of the jaw. fractured teeth and bone. and exited the mouth. That slug was not recov- ered. No. 6 entered the right shoulder area. traversed the right upper arm bone, and ex- ited the right shoulder. That slug was not recovered. (4 RT 985-986.) '"rheY were also consistent with the .38 wielded by Richard Diaz, which has the same diameter. Despite the failure to charge a firearm use enhancement separately for each count." the jury was given separate verdict forms for findings on the firearm use en- hancement, as applied to Counts I and I1 ( 1 1 C'T 2389. 2390). as well as Count 111 (1 1 CT 2398). Paradoxically, the jury found the tirearm use allegation untrue as to Count I (Chuck Durbin) (1 1 CT 2389). and true as to Count I I (Juan Uribe) (1 1 CT 2390). The allegation on Count I l l . attempted murder of Cindy Durbin. went unused in light of the acquittal on that count. On a claim of insufticient evidence. the evidence must be viewed in the light most favorable to the People. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.) Without conceding its truth. the People's evidence indicated that Little Pete entered the house with a .22 rifle. He found Juan Uribe in the kitchen and shot him multiple times. Appellant remained in the living room. According to Richard Diaz, appellant shot Chuck Durbin several times, in the living room. The forensic evidence indicated that Durbin was shot three tiines with a .380 or .38, and four tiines with the .22 wielded by Little Pete. The other accounts attributed to Little Pete in the following days were consistent with this scenario. In none of these accounts did appellant shoot Juan Uribe directly. By the People's case, interpreted strongly in favor of respondent, appellant's involvement in Uribe's murder was strictly as an aider and abettor. 5 7 For the reasons stated in this Argument, a firearm use allegation charged as to Count I1 (Juan Uribe) would not have survived a defense motion under Penal Code 5 995. llnder the holdings in People v. W~ilkei., supra. 47 Cal.3d at 635, and People v. Jones, supra, 30 Cal.4th at 1 120. there was insufficient evidence of a nexus or causation between appellant's firearm possession and the shooting of Juan Uribe. This scenario is not siinilar to "herding" the victiins into a place of confinement where they are immediately shot by a co-defendant (People v. Walker, supra), nor was it like the display of two guns to robbery victims (People v. Jones, supra); here no confron- tation occurred between appellant and IJribe. Appellant's gun was not used to facilitate the killing of Juan Uribe. This situation is unlike shooting into a crowd by two shooters; there both may be liable for firearm use even though only one of them causes injury. (See In re Londale H. (1992) 5 Cal.App.4th 1464.) IIere. appellant did not shoot at Uribe or contribute to his shooting through firearm use. In People v. Berry ( 1993) 17 Cal.App.4th 332, 335. the court of appeal upheld a firearm use enhancement where the defendants committed a home invasion robbery. Both defendants were armed. The victims were held at bay, and one victim was taken into another room and shot to death by the co-defendant. The court of appeal held that in that situation the defendant's firearm was used to facilitate a series of offenses that led up to the shooting. "[Ilt is clear kern the case law that use encompasses a situation where the defendant is armed and uses his firearin in furtherance of a series of related offenses that culminates in a fatal or near fatal shooting even though the defendant does not perso- nally fire the actual shot.'' (Ibid,) Here, in contrast. appellant's son charged into the house and shot Juan Ilribe. 'There was n o series of' related offknses leading up to the shooting of Ilribe. Appellant did not use his firearm to facilitate that shooting. For these reasons, there was insufticient evidence to support the firearm use alle- gation in the killing of Juan Uribe. Appellant was prejudiced by the improper inclusion of an enhancement finding which was part of the circumstances of the crime and which therefore contributed to the death verdict. VI. APPELLANT WAS DENIED THE RIGHT TO CONFRONTATION BY THE ADMISSION O F OUT-OF-COURT STATEMENTS AGAINST PENAL INTEREST O F HIS SON AND CO-DEFENDANT, PEDRO RANGEL 111, THROUGH THE TESTIMONY O F ANOTHER SUSPECT, JESSE RANGEL, AND BY THE USE O F AN OUT-OF-COURT STATEMENT O F HIS WIFE, MARY RANGEL, INTRODUCED AS A N ADOPTIVE ADMISSION THROUGH THE TESTIMONY O F JESSE'S WIFE ERICA RANGEL. In pretrial proceedings the superior court first granted appellant and his son sepa- rate juries in a single trial, then granted separate trials. The purpose of separate juries. then trial severance. was to protect each defendant from the use of out-of-court state- ments attributed to the other defendant, including statements of appellant's son which in- criminated appellant. Despite this protective measure. the trial court permitted the intro- duction of hearsay statements attributed to Little Pete. which placed appellant on the scene and provided a detailed scenario of the shootings. Since this trial. the United States Supreme Court has forbidden the use of out-of- court statements without confiontation, regardless of the purported "reliability" of the statements. It was prejudicial error to permit introduction of the out-of-court statements attributed to I.,ittle Pete. It was also a violation of confrontation to permit introduction of a statement attributed to appellant's wife Mary Rangel. which placed the primary blame ior the shootings on appellant. Rule. The Confrontation Clause of'the Sixth Amendment applies to both federal and state prosecutions. (Poinrer v. Texas ( 1 965) 380 [J.S. 400. 406.) The trial court here applied thc constitutional confrontation rule of Ohio v. Roberts ( 1980) 438 U.S. 56. IJnder that rule. the admissibility of' an out-of-court statement over a confrontation ob-jection depended on a determination of the reliability of the statement. In C'rayford v. Washington (2004) 541 U.S . 36. the high court re-jected the Roberts rule and returned to a rule excluding out-of-court testimonial statements, regardless of any as- serted reliability. Where testimonial statements are involved. we do not think the Fra- mers meant to leave the Sixth Amendment's protection to the vagaries of the rules of' evidence. much less to amorphous notions of "reliability." Cer- tainly none of the authorities discussed above acknowledges any general re- liability exception to the common-law rule. Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable. but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent). but about how reliability can best be determined. Cf. 3 Blackstone, Commentaries, at 373 ("This open examination of witnesses . . . is much Inore conducive to the clearing up of truth"); M. I-iale, Histor-v and Analysis of the Common Law of England 258 ( 17 13) (adversarial testing "beats and bolts out the Truth much better"). (Id. at 6 1-62.) Where testimonial statements are at issue, the only indicium of relia- bility sufficient to satisfy constitutional demands is the one the Constitution actuallj. prescribes: confrontation. ( Id . at 68-69.)'8 5 8 The Cratyford rule applies to the present case on direct review. "Under the Tea- gue framework, an old rule applies both on direct and collateral review. but a new rule is generally applicable only to cases that are still on direct review." (Whorton v. Bockting (2007) 127 S.Ct. 1 1 73. 1 180.) Background. Counsel for appellant filed a Motion to Sever Trials initially on No- vember 19. 1996. (7 CT 1659.) The motion was brought on Aranda-Bruton grounds.5" and attached the statement of Jesse Range1 implicating both defendants through purported admissions of appellant's son. Counsel for appellant's son filed a severance motion on November 20. 1996. on similar grounds, pointing to mutually incriminating statements attributed to appellant. (7 CT 173 1 .) The prosecution filed an Opposition to the defense severance motions on January 21. 1997. (8 CT 1738.) The prosecution argued that some of the mutually incriminating statements were made in each others' presence. and therefore became admissible against both as adoptive admissions. I t also argued that the statements could be edited to avoid any incriminating references to the speaker's co-defendant." On June 4, 1997, appellant's counsel filed Additional Argument and Authorities in support of the severance motion. (8 C?' 1793.) It was noted that in a joined trial some witnesses might be forced to choose between the defendants because of family loyalties. Counsel for Pedro Range1 111, filed a Declaration and Points and Authorities in support of the severance motion on February 17, 1998. (9 C'T 1854.) ) People v. A~anda ( 1965) 63 Cal.2d 5 18: Bruton 11. United States ( 1 968) 39 1 0 . S . 123. 60 However. as a practical matter. i t was not possible to edit the statements of appel- lant's son in a manner which would not incriminate appellant. See People v. Fletcher ( 1996) 13 Cal.4th 45 1. On Aug~ist 29. 1997. the trial court (llon. Paul R. Martin) heard argument on the severance motion. and ruled that a single trial \$auld bc conducted with two juries to ac- commodate the Al-aizda-Bruton objection at the guilt phase. and to sit in separate trials in the penalty phase. ( 8 C1' 183 1 : 1 K?' 80.) On February 27. 1998. the District Attorney filed another Opposition to the con- tinuing motions to sever. (9 C?' 1880.) The Opposition cited People v. Greenberger (1997) 58 Cal.App.4th 298 and People v. Fuerltes (1998) 61 Cal.App.4th 956, for the proposition that the co-defendant statements were "reliable" and thus admissible over a Confrontation ob-jection. and argued that severance was thcrefore unnecessary. On March 2, 1998, counsel for appellant tiled another Motion for Severance. 'The motion noted that Judge DeGroot had determined that Madera County lacked the re- sources to conduct a single trial with two juries." The motion for complete severance was brought in part because of continuing concern over the "divided loyalties" of wit- nesses for appellant and his son, and in part on the danger that statements of Little Pete would be introduced in a joint trial without opportunity for confrontation and cross- examination. (9 C'T 1895.) On March 27. 1998. counsel for the co-defendant (Little Pete) filed declarations in support of complete severance. The declarations, all from experienced capital defense counscl. pointed to prejudice which com~nonly ensues from joint trials of capital defen- 6 1 'l'his determination was apparcntl) made in an unreported conference in which the parties werc invited to submit further briefing. l'he formal order was entered on March 27. 1998. dants. (9 C'T 19 19, 1925. 1932.) Counsel fhr appellant joined in the supplemental decla- rations. (9 C'I' 1938.) Also on March 27. 1998. the trial court granted the defendants' motions for com- plete trial severance. ( 9 C1' 1878.) 'I'he trial court (I3on. John W. DeGroot) noted that the motion for separate juries had already been granted. but it was impossible to carry out be- cause the courtrooin was not big enough to accommodate two juries. (1 RT 126.) On July 6, 1998. after the severance was granted but still about six weeks before trial, the defense filed Motions in Liinine. (10 CT 2204.) The motions included a request to exclude out-of-court statements of appellant's son, as "unreliable hearsay." (10 CT 2205-2209.) The hearsay objection included specific references to three statements: ( I ) the telephone statement of appellant's son to Jesse Rangel, in which Little Pete allegedly said, "We did it," and "we got them": (2) a later phone conversation in which appellant's son allegedly said to Jesse, that "they had did it, and that they had killed Juan and they were laughing about it"; and (3) statements by Little Pete to Jesse Range1 at Frank's house, when Little Pete described the shootings in some detail. (10 CT 2207.) The Motion reprised much of the argument presented in the severance motions. I t was argued that the use of the statements would violate appellant's constitutional right to confrontation. (10 C'I' 2207.) According to the Motion. there was a lack of personal knowledge of the statements on the part of appellant. and thus a lack of foundation for their admission. citing People v Ron~os ( 1997) 15 Cal.4th 1 133. 1 177. The Motion ac- knowledged that the offered statements were statements against penal interest under Evi- dence Code 1230. but argued that the state~nents were insul'ficiently reliable. citing People v. Friet:~ot7 ( 199 1 ) 53 Cal.3d 730. 745."' On July 22. 1998. the prosecution filed an Opposition to the motion to exclude the statements of 1,ittle Pete. (10 CI. 2234-2237.) In the Opposition it was argued that ap- pellant's confrontation rights would be satisfied if the offered statements were sufficient- ly "reliable." citing Ohio v. Roberts (1980) 448 U . S . 46, 65. 'The Opposition went on to cite People v. Greenbergeta, ~lr~rrr.~' ' and People v. Fuentes, supra."4 for the proposition that statements against penal interest are sufficiently reliable to satisfjt the reliability re- quirement of the confrontation clause under Ohio v. Roberts, supra. The Motion was heard on July 24. 1998. ( 1 R'I' 234-247.) The trial court found that the purported statements of appellant's son were "perfectly admissible" in appel- 62 "In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230. and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant. [Citations.]" (/bid.) 63 "In order for a statement to qualifj as a declaration against penal interest the statement must be genuinely and specifically inculpatory of the declarant: this provides the 'particularized guarantee of trustworthiness' or 'indicia of reliability' that permits its admission in evidence without the constitutional requirement of cross-examination. Therefore. the determination that the statement falls within this hearsay exception also satisfies the requirements of the confrontation clause." (58 Cal.App.4th 298 at 329.) 6 J "In our view. a declaration which 'so far sub-jected [the declarant] to the risk o f . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true' ( 3 1230) bears adequate 'indicia of reliability' so as to satisfl, the confrontation clause. '[Tlhe very fact that a statement is genuinely self-inculpatory . . . is itself one of the "particularized guarantees of trustworthiness" that makes a statement admissible under the Confrontation Clause.' (Williamson v. United Stutes, .YZ ( /~YU, 5 12 U.S. at p. 605.)" (61 Cal.App.4th 956 at 966.) lant's trial. l'heq Mcre statements against penal interest; moreover. the '*real factor" for admissibilit> was said to be trust\vorthiness. including whether the statements were suffi- ciently corroborated by each other or by other evidence. citing Greenberger and Fuentes, supra. ( 1 R?' 237.) Defense counsel argued that there was insufficient corroboration that the state- ments were actually uttered. and pointed out that they could not call Little Pete to testify. 'The trial court reiterated that the real issue was the reliability of the person who was to testify (Jesse Rangel), that there was no evidence of the declarant's motive to speak un- truthfully,"' and that the hearsay statements therefore inet the test of reliability. ( 1 RT 239.) The trial court agreed to hold a hearing on reliability of the statements, under Evi- dence Code tj 402 (b). The hearing was tentatively scheduled for August 2 l , 1998, to coincide with a break in jury voir dire. ( 1 RT 248.) The 402 hearing was ultimately held just after jury selection, on September 1, 1998. (1 1 CT 2352; 3 RT 783-810.) At the time scheduled for the evidentiary hearing, the prosecution took the posi- tion that two issues were before the court - the against-penal-interest nature of the state- ments, and their reliability -- and argued that both questions were answered by the tran- script of the preliminary hearing. (3 RT 783-784.) The defense again conceded that the statements were against penal interest. but asserted that it was the prosecution's burden to 65 This despite the fact that Jesse Rangel was the other major uncharged suspect in the murders. and had every reason to testify untruthtully. advance e\ idcncc of' their rcliabilit~ . ( 3 I<'I 784-785.) I'he trial court agreed with the prosecutors that their burden of proof was satisfied by the preliminary hearing transcript. ( 3 RT 789.) Thc defense then called Jesse Rangel on the motion. Jesse Kangel testified that he received two phone calls fiom his cousin Little Pete on the evening of October 7. 1998. In the first phone call. Little Pete seemed "calm." ( 3 R'I 792.) In the second phone call. Little Pete's voice was slurred. as if he were intox- icated. ( 3 RT 793.) The li~llowing day Jesse was driven to appellant's house on Wes- smith. then to Little Pete's apartment, and from there to Frank Rangel's house in Fresno. Everyone including Little Pete and Jesse drank beer at Frank's house. (3 RT 797.) Little Pete snorted "a lot" of il~ethamphetamine at Frank's house. ( 3 R'r 798.) He seemed to be "paranoid" as a result. (3 RT 800.) The following day Little Pete spoke to Jesse about the shootings. (3 R T 80 1 .) Defense counsel cited the United States Supreme Court decision in Williamson v. United Stares ( 1994) 5 12 U.S. 594."' dealing with a parallel federal rule of evidence. Counsel argued that under the reasoning o f that decision, only those portions of the hear- say statement should be admitted which were specifically incriminating of the declarant, 00 "Nothing in the text of Rule 804(b)(3) or the general theory of the hearsay Rules suggests that admissibility should turn on ivhether a statement is collateral to a self- inculpatory statement. The fact that a statement is self'-inculpatory does make it more re- liable: but the fact that a statement is collateral to a self-inculpatory statement says noth- ing at all about the collateral statement's reliability. We see no reason why collateral statements. even ones that are neutral as to interest, . . . should be treated any differently from other hearsay statements that are generally excluded." (Id. at 600.) here appellant's son. The trial court promised to take the Williamson opinion under con- sideration. (3 Krl 808.) The trial court ruled that the statements made by Little Pete. and offered through the testimony of Jesse Rangel. were sut'ficientlq reliable to warrant admissibility over a confrontation objection. (3 R'1' 8 10.) Jesse Range1 testified to the jury on September 15. 1998. Jesse claimed that he received a call fiom appellant late in the evening of October 7, 1995, after his trip to the grocery store in Fresno. Little Pete said that he "got Juan." Jesse told his wife what was going on. ( 6 KT 149 1 , 1590. 1602.) Jesse went to sleep. Later that evening he got another call. again from Little Pete. Little Pete was drunk and laughing. and said that "he had killed Juan." Little Pete said that he, Big Pete. Richard. and Rafael were involved. In the same phone call Jesse spoke to appellant, who said that he "put those motherfuckers on ice." (6 RT 1492.) Jesse claimed that during their stay at Big Frank's appellant described the shoot- ings, then Little Pete provided more details. According to the statement attributed to Lit- tle Pete, when Rafael dropped him off. Little Pete went to the victims' house, opened the door. and went in looking for Juan. In the account repeated in Jesse's testimony, Richard stayed outside. However. in his statement to Officer Ciapessoni. and in his testimony at the preliminary hearing. Jesse claimed that Little Pete said that all three went in the house. ( 6 RT 1548, 1549.) In this statement attributed to Little Pete, Little Pete said that he found Juan Uribe and shot him. Chuck Durbin came out "from the side," and appellant. who had stayed by the front door. "shot him in the head." Juan was wounded and ran to the kitchen, where Little Pete ':just unloaded the rest of his bullets on him." (6 RT 150 1 .) In this account. Little Pete had a .22 rifle. appellant had a .380, and Richard Diaz had a .38. (6 KT 150 1 .) Little Pete said that appellant gave the guns to Little Pete's sis- ter's husband. to ditch them. (6 RT 1502.) Little Pete said that they burned their clothing in a pit in thc backyard. (6 K'l' 1238.) A related issue arose later in the afternoon o f September 15, 1998. The District Attorney indicated to the court that he intended to call Erica Rangel, Jesse's wife, to testi- fy concerning adoptive admissions of appellant. statements by appellant's wife made in the presence of appellant which he did not reply to. The prosecutor understood that they were required to wait on the outcome of the hearsay and confrontation objection to Jesse Rangel's testimony (see above). The trial court indicated that a 402 (b) hearing would be held as to Erica's testimony as well. (6 RT 1560.) Erica Range1 then testitied out of'the presence of the jury. She testified that some tiine after the shootings she was in a room in a white motel on Jensen with several other people including appellant and his wife Mary. Mary said a lot of things to appellant. bbmostly out of anger." some of which Erica could not remember. Mary accused appellant of being a murderer. She said that "he was a murderer." and "their son was. too." Appel- lant made no replq. (6 RT 1563.) She also said that she didn't want to be married to him any longer. and that "she didn't care if he was drunk that he was the adult, he should have taught his son bctter." ( 6 R'I' 1574.) l'he trial court found that appellant \\as present and heard thc statement. It was the kind of statement that would give rise to immediate response and denial. Under the circumstances the jury could consider it as an adoptive admission. (6 RT 1579.) In her testimony befhre the jury immediately following the 402 (b) hearing, Erica Rangel described a statement made by appellant's wife Mary at the Starlight Inn, and at- tributed to appellant as an adoptive admission. Erica testified that she visited a room at the Starlight where appellant and Little Pete were staying. .Jesse was also present, seated on the bed next to appellant. (6 RT 1610.)" Mary said to appellant, "You're a murderer. And now my son is one, too." Erica did not hear any response from appellant. (6 RT 1595 .) On September 16. 1998. appellant's son Little Pete appeared with his attorney. out of the presence of the jury, and invoked the Fifth Amendment. (7 RT 1695.) The availa- bility of Mary Range1 to testify was never resolved; presumably the defendant continued to hold the marital privilege, but she was never called to testify, and there was no stipula- tion concerning her availability. The jury received the standard instruction on adoptive admissions, CALJIC 2.7 1.5. (12 CrT 2633; 9 RT 2252.)" h 7 This account does not appear in the testimony of Jesse Rangel. 68 "If you should find from the evidence that there was an occasion when the defen- dant: "( 1 ) under conditions which reasonably afforded him an opportunity to reply; A ~ ~ a l j s i s . 'T'hc hcarsa~ statements introduced against appellant were introduced in violation of the Confrontation Clause of the United States Constitution. The statements were testimonial because they were all made well after the offense. in the context of information gathering. The statements were not made as a means of re- porting crime. nor were they made in the heat of the moment or in the stress of the crimi- nal event itself. Instead, they were made as part of information gathering, by persons who had a direct interest in the outcome. (See Davis v. Washington (2006) 547 U.S. 8 13 [call to 9 1 1 in the course of a crime was not testimonial; statement to investigating police officer shortly after the crime, while defendant was present, was testimonial].) All the reporting witnesses (Jesse and Erica Range1 and Mary Rangel) had an in- terest in fixing guilt and shifting blame: Jesse Rangel was a prime suspect in the murders, who could only benefit by the conviction of appellant; Erica was his wife; and Mary '*(2) failed to make a denial or made false. evasive or contradictory statements, in the face of an accusation. expressed directly to him or in his presence, charging him with the crime for which this defendant now is on trial or tending to connect him with its commission; and "(3) that he heard the accusation and understood its nature, then the circumstance of his silence and conduct on that occasion may be considered against him as indicating an admission that the accusation was true. "Evidence of an accusatory statement is not received fbr the purpose of proving its truth. but only as it supplies meaning to the silence and conduct of the accused in the face of it. "llnless vou find that the defendant's silence and conduct at the time indicated an admission that thc accusatory statement was true. you must entirely disregard the state- ment ." Rangel had decided that the whole incident was appellant's Fdult. choosing her son over her husband. Though not police officers. they were interrogators. We use the term "interrogation" in its colloquial. rather than any technical legal, sense. Cf: Rhode Island \ I . Innis, 446 1J.S. 291. 300-301 (1980). Just as various detinitions of "testiinonial" exist, one can imagine various definitions of "interrogation." and we need not select among them in this case. Sylvia's [the defendant's wife] recorded statement, knowingly given in response to structured police questioning. qualifies under any con- ceivable definition. (Crawford v. Washington, supra. 541 U . S . at 53, fn. 4.) Even if the statements offered here over a confrontation objection were "non- testimonial." and therefore outside the core rule of Crawford, they still should not have been admitted if they were unreliable. The testimony of prime suspects such as Jesse and Erica Rangel, repeating statements of the co-defendant, is highly unreliable. Their testi- mony should not be exempted from Confrontation Clause scrutiny entirely, but should be tested for reliability."9 The high court cautioned of this dilemma: "Where nontestimonial hearsay is at is- sue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law - as does [Ohio v.] Roberts, and as would an approach that exempted such statements froin Confrontation Clause scrutiny altogether." (Crawford v. Washingion, supra, 541 LJ.S. at 68.) 69 Ru t see United States v. Fields (5th Cir. 2007) 483 F.3d 3 13, 365; United States v. Ellis (7th Cir. 2006) 460 F.3d 920. 923: United States v. Feliz (2d Cir. 2006) 467 F.3d 227. 23 1 . The California Court of' Appeal has taken this holding to mean that even "non- testimonial" out-01'-court statements continue to be assessed under the Roberts reliabilitj standard. In People v. Corella (2004) 122 Cal.App.4th 461. the Court of Appeal con- cluded that. after C'rayfbrd. "a 'nontestimonial' hearsay statement continues to be go- verned by the Roherts standard. but the admission of a 'testimonial' hearsay statement constitutes a violation of a defendant's right of confrontation unless the declarant is un- available to testif). at trial and the deknse had a prior opportunity for cross-examination. (Crawford 124 S.Ct. at pp. 1369. 1374.)" ( Id . at p. 467. emphasis added; People v. Butler (2005) 127 Cal.App.4th 49, 58.) All of the challenged hearsay statements of appellant's wife and son were intro- duced in violation of the Confrontation Clause. The hearsay statements were all testi- monial, because they were acquired when the speaker were in the process of justifying themselves in the presence of a sympathetic audience, who were actually acting in the role of information gatherers for the police investigation. The use of the statements with- out confrontation and cross examination therefore violated the rule of Crawford v. Wash- ington, supra. 7 I o the extent that any of the statements were non-testitnonial, they were unreliable and violated the rule of Ohio v. Roherts, supra. A. Statements qf'Appellnnf's Son. Severance of'the co-defendants was granted. and separate trials were held, in order to prevent the use of co-defendant statements without cross-examination. And yet. de- spite thc refusal of appellant's son to testify in appellant's trial. the purported statements of Little Pete to his cousin Jesse were offered against appellant. and admitted as state- ments against penal interest. (Evidence Code $ 1230.)'~' The United States Supreme Court has noted that accomplice confessions are ex- cluded because of confrontation concerns. We similarly excluded acco~nplicc confessions where the defendant had no opportunity to cross-examine. See Roberts v. Russell, 392 U.S. 293, 294-295, 20 I,.Ed.2d 1 100, 88 S.Ct. 192 1 ( 1968) (per curiam); Bruton v. United States. 391 U.S. 123, 126-128, 20 I,.Ed.2d 476. 88 S.Ct. 1620 (1968); Douglas v. Alabama, 380 U.S. 415, 4 18-420. 13 Id.Ed.2d 934, 85 S.Ct. 1074 ( 1965). . .. Lee v. Illinois, 476 U.S. 530. 90 L.Ed.2d 5 14, 106 S.Ct. 2056 (1986), on which the State relies. is not to the contrary. There, we rejected the State's attempt to admit an accomplice confession.. . . (Crawford v. Washington, supra, 541 U.S. at 57 and 58.) Indeed, the United States Supreme Court in Bruton v. United States, supra, held that a ground for severance of co-defendants, which was granted in the present case, is the lack of confrontation when the co-defendant's mutually incriminating statement is presented without cross-examination. "[B lecause of the substantial risk that the jury, de- spite instructions to the contrary. looked to the incriminating extrajudicial statements in determining petitioner's guilt. admission of' [the co-defendant's] confession in this joint 7 0 "Evidence of a statement by a declarant having sut'ficient knowledge of the subject is not made inad~nissible by the hearsay rule if the declarant is unavailable as a witness and the statement. when made, was so far contrary to the declarant's pecuniary or pro- prietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred. ridicule. or social disgrace in the community, that a reasonable man in his position would not have ~nadc the statement unless he believed it to be true." trial violated petitioner's right of' cross-csainination secured by the Confrontation Clause of the Sixth Ainendment." (BI-zrton v. United Stutes, supra, 39 1 U . S. at 126.) l'he attempt to make an "end run" around the confrontation guarantee. by intro- ducing a co-defendant's admissions or confessions as statements against penal interest. has been deflected by the Supreme Court. In Lill\v v. Virginia ( 1999) 527 U.S. 1 16. 134. a plurality of the United States Supreine Court said that the admission of an accomplice's out-of-court custodial confession that incriminates the defendant is not admissible as a declaration against interest because it "does not come within a firmly rooted hearsay ex- ception." (527 U.S. at 134, fn. 5.) (See People t2. Schmaus (2003) 109 Cal.App.4th 846. 856.) Mere off-hand remarks. titting u ithin the definition of spontaneous utterances and made to neutral witnesses. have been held to be non-testimonial and outside the ambit of confrontation guarantees. See People v. Cervantes (2004) 1 18 Cal.App.4th 162, 174, and People v. Rincon (2005) 129 Cal.App.4th 738. But the statements in question here were not off-hand. They were complete accounts of the offense, made in response to inquiries by persons intensely interested in the subject. Furthermore. the testifying witnesses in Cervantes and Rincon were disinterested. IIere, Jesse Rangel was anything but disinterested. He was the prime suspect from the beginning of the investigation, and he u a s involved in prior efforts to retaliate against Juan Uribe. IIis photograph was identified several times by Cindy Durbin. He fled the area and left the state within days of the shooting. I Ie mas a prime candidate for acces- sory or accomplice status. at least. through the time of appellant's trial. The out-of-court statements offered through Jesse Rangel \\ere testimonial; even if they werc non- testimonial they were from an unreliable source. and should have been excluded. Under these circumstances, the statements of Little Pete. introduced through the testimony of Jesse Rangel, violated appellant's constitutional right to confrontation. B. Statement yf Appellant 's Wife. Mary Rangel's accusation of appellant - her out-of-court statement that appellant was a murderer - was admitted in violation of confrontation guarantees. In Crawlford v. Washington, supra, the conviction was based in part on statements of the defendant's spouse. In that case the statements were introduced over a claim of marital privilege, however, an exception was granted. not for adoptive admissions as here, but for statements against penal interest. In Washington, this [marital] privilege does not extend to a spouse's out-of-court statements admissible under a hearsay exception, see State v. Burden, 120 Wn.2d 37 1 , 377, 84 1 P.2d 758, 76 1 (1 992), so the State sought to introduce Sylvia's [defendant's wife] tape-recorded statements to the po- lice as evidence that the stabbing was not in self-defense. Noting that Syl- via had admitted she led petitioner to Lee's apartment and thus had facili- tated the assault, the State invoked the hearsay exception for statements against penal interest, Wash. Rule Evid. 804(b)(3) (2003). (541 U.S. at 40.) The difficulty perceived by the high court in Crawford was that the defendant could not cross-examine his wife without calling her to the stand and thereby waiving the marital privilege. The court in CraMiford assumed that waiver of the marital privilege was an impossible burden to place on the defendant, as a cost of preserving his right to confrontation. ("In this case. the State admitted Sylvia's testimonial statement against petitioner. despite thc k t that he had no opportunity to cross-examine her." (541 U.S. at 68.)) Similarly. in the present case the defendant could not call his wife to the stand without waiving the marital privilege. As in Crawfbrd, that waiver could not be exacted as a price ol'asserting his right to confrontation. In this case the statement of Mary Rangel, repeated by Erica Rangel, was intro- duced as an adoptive admission against appellant. because he was present and made no reply or protest. Adoptive admissions are listed as an exception to the hearsay rule, under Evidence Code $ 122 1 ." This Court has held that the adoptive admission exception to the hearsay rule, standing alone, does not implicate the right to confrontation, because the declarant's ve- racity is not in issue. Instead. this Court has reasoned, the declarant's statement has been adopted by the defendant, and becomes his statement, an admission against penal interest. (See People v. Combs (2004) 34 Cal.4th 821. 84?-843.72 and People v. Roldan (2005) 35 7 1 "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content the- reof, has by words or other conduct manifested his adoption or his belief in its truth." 7 2 ". . . [Dlefendant's Sixth Amendment right to confrontation was not implicated. As in Crawford, here, Purcell's statements made during the police interrogation are testi- monial. and it does not appear from the record that defendant had a prior opportunity for cross-examination. (CrawJord, supru. 54 1 1J.S. at pp. 53, 6 1-62, fn. 4.) Defendant did not dispute Purcell's unavailability at trial. nor does he do so on appeal. However, Pur- cell's statements incriminating defendant were not admitted for purposes of establishing the truth of the matter asserted. but were admitted to supply meaning to defendant's con- duct or silence in the face of Purcell's accusatory statements. (People v. Silva (1988) 45 Cal.3d 604. 624: CALJIC No. 2.71.5.) '[Bly reason of the adoptive admissions rule. once the defendant has expressly or iinpliedly adopted the statements of another, the Despite thesc holdings. the statement of Mary Range1 violated appellant's right to confrontation. Mary Range1 was in a position to make an accusation against appellant statements become his own admissions ... . [Citation.] Being deemed the defendant's own admissions. we are no longer concerned with the veracity or credibility of the original declarant.' (Silvu, supra, 45 Cal.3d at p. 624.) "'Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content the- reof. has by words or other conduct manifested his adoption or his belief in its truth.' (Evid. Code, 9 122 1 .) The statute conte~nplates either explicit acceptance of another's statement or acquiescence in its truth by silence or equivocal or evasive conduct. 'There are only two requirements for the introduction of adoptive admissions: "(1) the party must have knowledge of the content of another's hearsay statement, and (2) having such knowledge, the party must have used words or conduct indicating his adoption of, or his belief in. the truth of such hearsay statement.'' [Citation.]' (People v. Silva, supra, 45 Cal.3d at p. 623.) Admissibility of an adoptive admission is appropriate when "'a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear. understand, and to reply. and which do not lend themselves to an in- ference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution ...."' (People v. Riel (2000) 22 Cal.4th 1 153, 1 189.)" 7 3 "Defendant presented no evidence suggesting he did not hear the comments testi- fied to by Barrios and Christine Zorns. Nor is there any suggestion he failed to speak be- cause he was relying on his Fifth Amendment rights. Although, as defendant emphasiz- es, the witnesses did not specifically attribute each comment to a particular speaker, that is irrelevant on the facts of this case, where defendant heard the comments, had the op- portunity to reply. and the comments were made under circumstances that normally would call for a response. Although he claims there was no evidence of his reaction to the comments. his silence may be taken as an adoption of them. We conclude the trial court properly admitted the statements as adoptive admissions excepted from the hearsay rule. "Defendant also contends the admission of this same evidence violated his federal constitutional rights. He did not. however. make a specific objection on constitutional grounds at trial. Assuming without deciding the issue was properly preserved for appel- late review (People 1). Champion, supra. 9 Cal.4th at p. 908, fn. 6), we conclude defen- dant fails to persuade us the admission of his adoptive admissions rendered his trial so fundamentally unfair that it violated his due process rights. (See Estelle v. McGuire, su- pra, 502 U.S . at p. 75.) In short. we find no constitutional error. [fn.]" ~vhich ~vould shift the blame to him and away fi-om their son. Appellant was not in a po- sition to protest since anything he said would seem to be an accusation of his own son. and moreover would be guaranteed to launch a further domestic quarrel with his wife. This is not a situation in which appellant's silence "manifested his adoption or his belief' in the truth of his wife's statement. (Evidence Code 6 122 1 .) Mary Kangel's statement was very much her statement, based on her desires and speculations. She was in a position to know something about the shootings. She was at the barbecue on Wessmith just before the shootings; she had a motive similar to appel- lant's to account fbr the shooting of Little Pete, indeed she could have had an accessory role in the murders (she certainly assisted Jesse Range1 in his flight from California). She was well acquainted with appellant and her son. Her statement did not represent an ac- count of the shootings, since she was not at the scene of the shootings on East Central Avenue. Rather, her statement represented her personal judgment of the relative respon- sibilities of the two people who she believed were responsible. her husband and her son. Since it was appellant's son who had the primary motive to retaliate against Juan Uribe. without Mary Rangel's statement the jury could well have viewed appellant's role as secondarq or tangential. Even if the jury accepted everything else argued in support of the People's case. and reached a valid verdict at the guilt phase. it was still important for the jury to assess the relatice roles of thc two shooters. Appellant was falling down drunk b j the time of the shootings. and ma! have had little idea of what was going on beyond wanting to help to protect his son ti-om someone who had recently shot him. As- signing to appellant a priinary or planning role in the murders. which was Mary Rangel's personal conclusion. was crucial to the death penalty decision. Appellant was in a Catch-22. He could not very well contradict his wife on this sub-ject, without casting blame on his son. This was not a situation in which his silence implied belief in the truth of his wife's accusations. lIis wife's accusations should have been sub-ject to cross-examination. Her state- ments should not have been introduced unless and until defense counsel could confront her on the stand. The defense should have been able to ask her why she concluded that appellant was primarily responsible for these murders. What did she know about the planning and preparation that would suggest that appellant was the primary mover? Per- haps she knew nothing of importance. and was simply choosing her son over her hus- band. But we will never know, since she did not testify. For these reasons, it was a violation of the constitutional right to confrontation to permit the introduction of evidence of Mary Rangel's accusations. Prejudice. The statements introduced in violation of confrontation had a substan- tial impact on the outcome of both the guilt and penalty phases of the trial. Violation of the constitutional right to confrontation is reviewable under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. (Delaware v. Van Arsdall ( 1986) 475 U.S. 673. 680: People v. D,ver (1988) 45 Cal.3d 26. 46.) Jesse Range1 claimed an alibi. and his wife and inother backed him up. Beyond trying to exonerate himself. his testiinonj should not have played a role in this trial. But. since he was identified as one of'the shooters. merely presenting biased evidence of an alibi may not have been enough to distance him froin prosecution. Since he was also in a position to repeat alleged statements by Little Pete. he had every reason to create a hear- say scenario which placed appellant. and not himself. at the scene as one of the shooters. Jesse Rangel's version of the offense, attributed to Little Pete, interlocked with the version offered by Richard Diaz. Both of their versions placed Little Pete and Big Pete. and no other perpetrators, inside the house when the fatal shots were fired. Their ver- sions were at odds with the statements of Cindy Durbin, who identified Jesse as one of the shooters. When she changed her statement to conform to theirs, the prosecution case was superficially complete. However, it remained subject to substantial doubt, because Richard Diaz was in a position to conform his statement to Jesse Rangel's, and Cindy Durbin had an obvious interest in changing her identification at the preliminary examina- tion, to conform to the scenario adopted by the prosecution. Without the out-of-court statements attributed to Little Pete, the jury would not have reached the same result. beyond a reasonable doubt. In addition. lingering doubt over appellant's role as the actual shooter was relevant to the penalt4 determination. (See discussion in People v. GUJ, (2008) 42 Cal.4th 1 195. 12 17- 1228.) linproper admission of the statements at the guilt phase also undermined the penalty phase verdict. and requires that it be reversed. The pre-judice which flowed from the out-of-court statement of Mary Rangel, of- fered through Erica Rangel. went Inore to the penalty phase of the trial. Mary Rangel was not at the scene of the shootings. and her opinion on who was involved may have been given little weight at the guilt phase. But her opinion as to who was primarily re- sponsible undoubtedly had a great effect on the jury at the penalty phase. Little Pete had the primary motive to kill Juan Uribe. There was bad blood be- tween the two of them. dating at least since the shooting following the baptism party on September 24. 1995. Appellant was much older than his son and his nephew and their associates such as Richard Diaz. He was a dutiful husband and father. a hard worker, and a person who took in foster children. He was drunk on the night of the offense. Whatev- er his level of involvement, he may have been led into it by his son; this could have been an important consideration in mitigation of punishment. But this was not Mary Rangel's opinion. and she clearly did not want to aid appel- lant at the expense of her son. According to her, appellant was primarily responsible for the shootings: "You're a murderer. And now my son is. too." (6 RT 1595.) This opinion, from appellant's own wife, undoubtedly had a major role in shifting the jury's opinion toward the death penalty. For these reasons the use of out-of-court statements without confrontation. as to both appellant's son and his wife. was pre-judicial error. VII. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY ON FLIGHT AS EVIDENCE OF CONSCIOUSNESS OF GUILT, WHERE OTHER SUSPECTS ALSO FLED THE CRIME SCENE AND LATER FLED MADERA, BUT THE STANDARD FLIGHT INSTRUCTION ONLY PINPOINTED APPELLANT'S CONDUCT. California statutory and case law mandate the reading o f an instruction which draws the jury's attention to the defendant's flight immediately after the commission of a crime. According to the instruction. the jury may consider such evidence in reaching a conviction. Yet. in the present case there was no concomitant instruction drawing the jury's attention to the flight of other suspects in the shootings, including Jesse Rangel and Richard Diaz. Inevitably. the California requirement of an instruction pinpointing the de- fendant's post-offense conduct. while passing over evidence of the flight of other sus- pects, will operate to deny the dcfendant a fair trial. So it is in the present case; by pin- pointing only the defendant's conduct, the jury instruction enhanced the weight attributed to his conduct and diminished the weight attributed to the flight of third-party suspects, and thereby denied appellant a fair trial. Rule. In People v. Sears ( 1970) 2 Cal.3d 180, 189- 190. this Court held that a de- fendant is entitled to an instruction relating evidence at trial to the doctrine of reasonable doubt. In People v. Wright (1988) 45 Cal.3d 1120. this Court clarified and limited its holding in Sears. In Wright this Court emphasized "the well settled rule against argu- mentative instructions on a disputed question of tact." (Id. at 1141 .) The Wright court held that under a proper instruction. \%hat is pinpointed is not specific evidence as such. but rather the theory of'the defendant's case. (/bid. ) This Court has accepted. at least tacitly. the proposition that the rule against argu- mentative j u r ~ instructions. expressed in People v. Williams, supru, applies equally to jury instructions which focus on evidence offered in support of the prosecution case. (See People v. Yeoman (2003) 3 1 Cal.4th 93. 13 1 .) There is no reason, and certainly no reason consistent with equal protection and due process. to perinit pinpoint instructions for one party that would not be permitted for the other party. CALJIC 2.52 refers to specific prosecution evidence - evidence of appellant's flight - and not to a theory of the case. An instruction which applies to prosecution evi- dence, but which does not mention parallel evidence which might raise a reasonable doubt of the defendant's guilt, is an unequal application of state law. A state's failure to equally apply state law may be a violation of federal due process. (Hewitt v. Helms (1983) 459 U.S . 460, 466; Fetterl-y v. Paskett (9th Cir. 1993) 997 F.2d 1295: Walker v. Deeds (9th Cir. 1995) 50 F.3d 670, 673.) Buckgi~ound There was evidence of flight by several potential suspects shortly af- ter the shootings. Ilnlnediately after the shootings, neighbors saw the suspects fleeing the scene. (4 RT 1 104- 1 105 (Delores Rivera]: 5 RT 1 126- 1 127 [Cindy Burciaga].) Therefore, the per- sons who inight have fallen within a flight instruction included anyone who was identi- fied at the scene. and who did not immediatelj. contact law enforcement to explain what had happened. These included not only appcllant and his son and Rafael Avila, but also Richard Diaz. who identified himself as an accomplice. and Jesse Rangel. who was iden- tified as a perpetrator bj, Cindy Durbin. Several potential suspects Icft Madera within days of the shootings. Appellant and his son stayed with Frank Range1 in Fresno for a few days, then moved to local motels. (6 RT 1496- 1498, 15 17, 1593. 1593- 1594.) Jesse Range1 moved with them. To the extent that this was evidence of flight supporting an inference of guilt. the inference runs as much to Jesse Range1 as to appellant. Jesse Rangel then left the area entirely. Appellant's wife Mary provided him with a couple hundred dollars and her car.74 ~ e s s e drove with his family to Santa Maria to pick up Erica's cousin Humberto. (6 RT 1504- 1505. 15 18.) From Santa Maria they drove to New Mexico. They stayed in a motel for a few days, then stayed with Humberto's girlfriend. (6 RT 15 19.) They were in her mobile home in New Mexico when they were tracked down by law enforcement. Evidently. appellant and his son left the state about the same time. Motel receipts, introduced by stipulation. indicated that "Pete Rangel" stayed at an Economy Inn on Coolwater 1,ane in Barstow, California. from November 16 to November 17, 1995 (Ex. 85. 86). "Pete Rangel" stayed at a Motel Six in Phoenix, Arizona, from November 17 to November 18. 1995 (Ex. 84). ( 1 1 C?' 2375; 8 RT 19 19: see 2 ACT 455.) 7 4 The trial court instructed the jury. following a defense objection, that evidence of Mary's arrangements for Jesse Rangel's flight from Madera was introduced for a non- hearsay purpose. the state of mind of Jesse Rangel. (6 RT 15 17.) The district attorney requested the reading of CALJIC 2 ~ 2 ' ~ at the conclusion of the guilt phase of the trial. (12 CT 2730.) No objection was entered by the defense, and no countervailing instruction on the flight ot' other suspects was requested. 'The prosecutor made extensive reference to evidence of appellant's flight in guilt phase argument to the jury. We have more evidence. What did the defendant do? The defendant had a job at FMC for 16 years. It was a good job. He earned good money. What-did he do? He i~nmediately after the killings of Chuck Durbin and Juan Uribe. he quit that job. And what is even more unusual is he just didn't walk in and say I quit. He just didn't show up. He gave no notice. He didn't even give notice to his supervisor Jerry Smith who is not just his supervisor, his friend. You heard Jerry Smith testi@ he was looking for him and wanted to know what's going on. He didn't even give him notice he was quitting this job of 16 years. What else did he do? He left town. He went from motel to motel in Fresno. We have the motel receipts to show that. You have the testimony of Ms. Kennedy to show that. You have the testimony of Erica Rangel and Jesse Range1 to show that as well. What did he do next? He then went to Barstow, California. And you have the motel receipt to show that he was in Barstow, California. And then finally he went to Phoenix, Arizona. And you have the motel receipt from the motel in Phoenix, Arizona. So he left town immediately after these killings. Defense counsel in argument tried to cast blame on Jesse Rangel: "He knew he was a suspect." (9 RT 21 82.) Oddly. however. defense counsel made no reference to Jesse Rangel's flight to New Mexico. Instcad. he seemed to cast Frank Rangel, Jr.. in the role of a hgitive: "Why would he [Jesse Rangel] choose Frank Rangel, Jr.? He knew '"e now CALCRI M 3 72. adopted many years after appellant's trial. 130 1:rank Rangcl. Jr.. \$as on the run with little Pcte." (9 R7' 2 182.) In actuality. Frank Jr. was never on the run: i t was Jesse Kangel w h o was on the run. In rebuttal. the prosecutor returned to appellant's asserted consciousness of guilt through flight. while disavowing any similar implication from Jesse Kangel's behavior. So why did the defendant. Pedro Kangel. Jr. leave town? Why did hc quit a job he had for 16 years? Why did he leave town two days after the homicides without even bothering to call his boss and friend? Why did he bounce from hotel to hotel over the next month and a half? Because he knew that him and his son were guilty of murder. Getting back to Jesse, it's not really important why Jesse left town or where he went. What is important is what happened after he left town. Shortly after Jesse arrived in New Mexico he got a call from Officer Cia- pessoni. Within the first five to 10 minutes of that phone call. Jesse Rangel told Officer Ciapessoni everything he knew about the homicides. Every- thing he had been told about the homicides. He told this information - talked about this information over the phone to a person he had never even met. And he told him everything. When he told Officer Ciapessoni that information he was unaware that he was a suspect in the case. He was unaware there was a warrant out for his arrest. He was unaware that he was about to be arrested very shortly thereafter. But still, he told him everything. (9 KT 22 15-22 16; emphasis added.) Shortly after the attorneys' arguments. the jury was instructed, including the flight instruction in the language ofCA1,JIC 2.52: The flight of a person immediately after the commission of a crime or after he is accused of a crime. is not sufficient in itself to establish his guilt. but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide. Analysis. A jury instruction focusing solcly on appellant's flight was unfair in these circumstances. The reading of a flight instruction on appropriate evidence is mandated by Penal Code 5 1 1 2 7 ~ : In any criminal trial or proceeding where evidence of flight of a de- fendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. No further instruction on the subject of flight need be given. In People v. Bradford (1 997) 14 Cal.4th 1005, 1055, this Court approved the read- ing of CALJIC 2.52, against the argument that there were other possible explanations for the defendant's conduct. We disagree. In general. a flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circums- tances suggesting that his movement was motivated by a consciousness of guilt." (People v. Ray, supra, 13 Cal.4th at p. 345; @ 1127c.) "'[Fllight re- quires neither the physical act of running nor the reaching of a far-away ha- ven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested."' (People v. Visciotti (1992) 2 Cal.4th 1, 60, quoting People v. Crandell (1988) 46 Cal.3d 833, 869.) "Mere return to familiar environs from the scene of an alleged crime does not warrant an in- ference of consciousness of guilt [citations], but the circumstances of de- parture from the crime scene may sometimes do so." (People v. Turner (1990) 50 Cal.3d 668, 695, original italics.) Here. while defendant did not leave the apartment building in which the murder occurred, he left Kokes's apartment after killing her, told Ste- vens, "I really got to get the hell out of here," packed his belongings, asked DeLong if he could stay with her near Fresno, and repeatedly pleaded with his roommate to drive him out of town. This is sufficient evidence to war- rant instructing the jury to determine whether flight occurred, and. if so, what weight to accord such flight. (See People v. Mason (1991 ) 52 Cal.3d 909. 943.) Moreover. the instruction given adequately conveyed the con- cept that if' flight was found. the jury was permitted to consider alternative explanations for that flight other than defendant's consciousness of guilt. I t must be demonstrated that the defendant was leaving the scene of the crime; in a situation where the defendant left the crime scene. but intended to return, and was ar- rested a short distance away on his way back. it was error to read the flight instruction. (People v. Crarzdell, supra, 46 Cal.3d at 869-870.) The jury may properly consider evidence of tlight whether the issue before it is identity (People v. Mason, supra, 52 Cal.3d at 943, overruling People v. Anjell (1979) 100 Cal.App.3d 189. 199) or mental state (People v. Smithey (1999) 20 Cal.4th 936, 982). This Court has held that CALJIC 2.52 is unob.jectionable because it is aimed in part at benefiting the defendant. (See People v. Bolin (1998) 18 Cal.4th 297, 327.) Nev- ertheless. the instruction is aimed entirely at focusing the jury's attention on evidence of the defendant's flight. Evidence of flight may be highly persuasive in some cases. In- deed, it is considered highly relevant in contrast to evidence of lack of flight, which has little relevance and will not support a pinpoint instruction. (People v. McGowan (2008) 160 Cal.App.4th 1099; 1 105; People v. Williams ( 1 997) 55 Cal.App.4th 648,652.) For these reasons. the standard instruction calling attention to the defendant's flight has no benetit to any criminal defendant. and specifically no benefit to the defen- dant in this case. The instruction is meant to draw attention to the defendant's conduct as evidence of guilt: it has no other purpose. Its use should be balanced by instruction on evidence of flight by third party suspects. Since the trial in this case. it has been held that the defense may request an instruc- tion pinpointing evidence of tlight by a third party suspect. In People v. Henderson (2003) 110 Cal.App.4th 737, 744. decided about five years after appellant's trial, the court of appeal held that an instruction on flight by a third party suspect may be the sub- ject of a defense-requested instruction. The court of appeal found that such an instruction was appropriate even though there was no earlier California authority which would have supported such an instruction. ... In the abstract we are inclined to agree with Henderson that evi- dence of flight by a third party after being accused of a crime or after ac- quiring knowledge of the crime. could be relevant to the jury's determina- tion of whether the third party's conduct raises a reasonable doubt as to the identity of the perpetrator. Accordingly, we believe a defendant would be entitled to a special instruction, in the nature of a pinpoint instruction, if properly prepared and submitted by the defense. (See People v. Sears (1970) 2 Cal.3d 180.) On the other hand, we are satisfied there is no au- thority which would compel a trial judge to draft such an instruction or to give it on the court's own motion. There is a sua sponte duty on the part of trial judges to give a jury instruction on the effects of flight as it relates to a defendant in a criminal case.. . . Plainly, both the code section and the CALJIC instruction deal with the charged defendant and address the proper uses of the evidence of flight. The focus of the instruction is on the defendant and the question of whether there was flight and whether it is reasonable to infer consciousness of guilt from such flight. The instruction goes on to limit the jury's use of the evi- dence in that it advises the jury that flight alone cannot support a finding of guilt. Thus CALJIC No. 2.52 serves the dual purpose of permitting an infe- rence of guilt. but at the same time provides the defendant with some pro- tection against misuse of such evidence. (People v. Han (2000) 78 Cal.App.4th 797. 808; People v. Batejl (1989) 2 13 Cal.App.3d 582, 586.) Under current law the trial court has no sua sponte duty to modify CALJIC No. 2.52. (People v. Prvsock ( 1982) 127 Cal.App.3d 972, 1002-1003.) In order to use an instruction such as CALJIC No. 2.52 to deal with alleged flight by a third party, the instruction would have to be totally rewritten. 'The focus would shift to the third part! and would be for the purpose of de- termining if such flight points to a reasonable doubt as to the identity of the perpetrator. Further, the court would have to determine if like section 1127~. no knowledge of the criine by the third party would have to be dem- onstrated in order to justify the instruction. or whether the court should re- vert to the com~non law view that the person had to first be accused or at least aware of the criine. (See People v. Hill (1967) 67 Cal.2d 105. 1 2 0 . ) [ ~ ~ ] Neither the parties to this appeal nor this court has found any Cali- fornia case, which addresses the question of an instruction on flight - of a third party. Henderson has, however. f'ound authority from Pennsylvania. which does address the issue. The most recent of the Pennsylvania cases cited by Henderson, Commonwealth v. Milligan (Pa. Super. Ct. 1997) 693 A.2d 13 13, 13 17, in- dicates. without any significant analysis. that flight could be relevant to the question of whether a third party's actions raise a reasonable doubt. Ac- cordingly, the court concluded that a defendant should also be able to ob- tain an instruction to the jury on such issue. To a great extent, the Pennsyl- vania court's analysis is reminiscent of the reasoning of People v. Sears, supra. 2 Cal.3d 180, and the cases which have followed it. [fn.] The essen- tial conclusion of the Pennsylvania court was that third party flight could be relevant to the issue of identity in a given case. Accordingly a defendant should be able to obtain an appropriate instruction on the issue. We view such analysis as consistent with the Sears line of authority that permits a defendant to obtain a special or pinpoint instruction on an issue relevant to the defendant's efforts to raise a reasonable doubt. Logically, a properly tailored instruction could assist a jury in determining what weight, if any, to give to the alleged flight of a person about whom the court has permitted evidence of third party culpability. It would seem that a -jury could draw an inference, favorable to the defendant, if a person, so closely connected with a crime as to permit the admission of third party evidence, from that per- son's abrupt departure from the area upon learning of the discovery of a crime. Such inference would be permissive and would potentially be a fac- tor to be considered in determining whether the prosecution has proved identity beyond a reasonable doubt. Thus we are persuaded that a defendant relying on a third party cul- pability defense is entitled to have the trial court give an appropriate pin- '' This consideration is thoroughly satisfied in the present case. Jesse Range1 testi- iied that he knew that people on the street were blaming him for the shootings. (6 RT 1499-1500.) point instruction on the issue of the alleged flight of the third party upon proof that the third party was aware of the discovery of the charged crime. We have not been presented with any authority or reasoning that would jus- tify holding that trial courts have a sua sponte duty to give such instruction without request. Although we agree that Henderson might have been entitled to an appropriate pinpoint instruction in this case, none was offered. The trial judge had no duty to craft such instruction fbr the defense, thus we find no error by the trial court. (Id. at 74 1-744; emphasis added.) As acknowledged in the Henderson opinion. no California authority existed at the time of appellant's trial which would have supported a request for a jury instruction pin- pointing the flight of Jesse Range1 and Richard Diaz. Generally, a failure to anticipate a rule of law which has yet to be announced will not lead to a waiver of the argument on appeal. (People v. Turner (1990) 50 Cal.3d 668, 704.) Moreover, a pure question of law may be raised on appeal even in the absence of a specific request or objection. (Hale v. Morgan (1 978) 22 Cal.3d 388, 394; People v. Hines (1997) 15 Cal.4th 997, 1061; In re Samuel V. (1990) 225 Cal.App.3d 51 1, 5 15.) The lack of objection to CALJIC 2.52. on grounds that it unfairly singles out evi- dence of the defendant's guilt, is a separate issue. Penal Code tj 1 2 5 9 ~ ~ permits a crimi- -- - 7 7 "Upon an appeal taken by the defendant. the appellate court may. without excep- tion having been taken in the trial court. review any question of law involved in any rul- ing, order. instruction. or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court. and which affected the substantial rights of the defendant. The appellate court may also review any instruction given, refused or modified, even though no objec- tion was made thereto in the lower court. if the substantial rights of the defendant were affected thereby.'' nal defendant to object on appeal to a jury instruction read at trial. even in the absence of an ob-jection belour. (See People v. Prieto (2003) 30 Cal.4th 226. 268.) Even if CALJIC 2.52 is an appropriate instruction in general. it is not appropriate where it shifts the jury's focus to the def'endant's flight while ignoring evidence of tlight of a third party, and the- reby invites the jury to give diminished attention to the evidence o f flight by a third-party suspect. This argument against the use of CA1,JlC 2.52 is cognizable on appeal without ob-jection. For the reasons set forth above. CAIJJIC 2.52 was unbalanced on this record. and should not have been read. It resulted in an unconstitutional shift in the burden of proof. (See Carella v. California (1989) 491 U.S. 263 and People v. McCall (2004) 32 Cal.4th 175.) Prejudice. Appellant's strongest line of defense was the argument that Jesse Ran- gel and Richard Diaz were the shooters, to the exclusion of appellant and his son. Since Cindy Durbin identified Jesse Rangel initially and repeatedly, there was evidence to sup- port a reasonable doubt based on Jesse Rangel's possible or probable involvement. Jesse Rangel's flight. even though he was supposedly at the market with his family at the time of the shooting. as a strong reason to conclude that he was accurately identified as one of the shooters. Richard Diaz was admitted11 on the scene. I-Ic claimed to be outside at the time of' the fatal shots. but we have only his word on that. (See the police statement of Jesse Rangel. in which he stated that Little Pete told him that Richard Diaz also went in the house. (6 R7' 1548, 1549.)) A properly instructed jury could have easily been left with a reasonable doubt as to the identification of the perpetrators. and could have acquitted ap- pellant on this record. By reading CALJIC 2.52 on flight of the defendant. and not reading a balancing instruction focusing on the flight of Jesse Range1 and Richard Diaz, the trial court effec- tively shifted the burden of proof and denied appellant a fair trial. VIII. THE TRIAL COURT FAILED TO INSTRUCT SUA SPONTE ON THE LESSER INCLUDED OFFENSES O F VOLUNTARY MANSLAUGHTER AND INVOLUNTARY MANSLAUGHTER. As to appellant's liability for thc killing of' Juan Uribe (Count 11), there was cvi- dence that appellant was intoxicated and in a state of fear and anger. sufficient to support a claim of heat of passion. raise a reasonable doubt on the element of malice, and reduce the offense to voluntary manslaughter. As to appellant's responsibility for the killing of Chuck Ilurbin (Count 1). there was evidence. again. that appellant was intoxicated, and also in a state of actual but unreasonable belief in the necessity for self-defense, sufficient to raise a reasonable doubt on the ele~nent of malice and reduce the offense to voluntary manslaughter. As to both murder counts, the evidence of intoxication was sufficient to negate malice and intent. and reduce both counts to involuntary manslaughter. Despite this, no instructions or alternative verdict forms were offered or read on voluntary or involuntary manslaughter. In these circu~nstances the trial court was under a sua sponte duty to in- struct the jury on voluntary and involuntary manslaughter. A. Rule. Voluntary manslaughter is a lesser included offense to premeditated first degree murder. Murdcr is the unlawful killing of a human being with malice afore- thought. ( $ 187. subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks malice is guilty o f . . . voluntary manslaugh- ter. ( 5 192.)" (People v. Barton ( 1 995) 12 Cal.4th 186. 199 (Barton).) Generally. the intent to unlawfully kill constitutes malice. (5 188; People v. Saille (199 1 ) 54 Cal. 3d 1 103. 1 1 13; see In re Christian S. (1994) 7 Cal.4th 768. 778-78 (Christian S.).) "But a defendant who intentionally and unlaw- fully kills lacks malice . . . in limited. explicitly defined circumstances: ei- ther when the deiendant acts in a 'sudden quarrel or heat ol'passion' (9 192. subd. (a)). or when the defendant kills in 'unreasonable self-defense'--the unreasonable but good faith belief in having to act in self-defense (see [...]Christian S.[, supra,] 7 Cal.4th 768; I . . . I Flannel. supra. 25 Cal.3d 668)." (Barton, supra. 12 Cal.4th at p. 199.) Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide (ihid.). voluntary manslaughter of these two forms is considered a lesser necessarily included offense of inten- tional ~nurder (id. at pp. 20 1-202). [fn. I (People v. Breverman ( 1998) 19 Cal.4th 142. 153- 154.) 'l'he requirement of instruction on lesser included offenses is not satisfied merely by instruction on some lesser offense (here. second degree murder), where there are other lesser included offenses sub-ject to instruction. "On the contrary. as we have expressly indicated. the rule seeks the most accurate possible judgment by 'ensur[ing] that the jury will consider the full range of possible verdicts' included in the charge, regardless of the parties' wishes or tactics. (Wickersham, supra, 32 Cal.3d 307, 324, italics added.) The inference is that every lesser included offense. or theory thereof, which is supported by the evidence must be presented to the jury." (People v. Breverman, supra, 19 Cal.4th at 155.) Heat of passion and unreasonable self-defense are partial defenses leading to vo- luntary manslaughter. a lesser oftense included in murder. They are within the require- ment that the trial court provide sua sponte instructions on all material issues which are presented by the evidence. . .. In the interests of justice, this rule demands that when the evi- dence suggests the defendant may not be guilty of the charged offense, but only of some lesser included offense. the jury must be allowed to "consider the,full rcrrlgc of possible verdicts--not limited b j the strategy. ignorance. or mistakes of the parties." so as to "ensure that the verdict is no harsher or more lenient than the evidence merits." ( Wickersham, supra. 32 Cal.3d 307. 324. italics added: see also Bar.tor~, szq~l-cr. 12 Cal.4th 186. 196.) The infe- rence is inescapable that. regardless of the tactics or objections of the par- ties. or the relative strength of the evidence on alternate offenses or theo- ries. the rule requires sua sponte instruction on any and all lesser included offenses. or theories thereof. which are supported by the evidence. murder case, this ineans that both heat of passion and unreasonable self- defense, as forms of voluntary manslaughter, tnust be presented to the jury if both have substantial evidentiary support. (People v. Breverman, sup/-a. 19 Cal.4th at 160; underlining added.) This Court has held that a failure to instruct sua sponte on a necessary lesser- included offense in a non-capital case is an error of state law only. reviewable under the standard of People v. Watson (1956) 46 Cal.2d 8 18. (People v. Breverman, supra, 19 Cal.4th at 172.) The present case is a capital case; first degree murder liability on at least one count was necessary to death eligibility. The reading of necessary lesser included offense instructions was therefore a matter of federal due process (Beck v. Alabama (1980) 447 U.S. 625). and the error is reviewable under the standard of Chapman v. Cali- fornia (1967) 386 U.S . I 8." 7X Moreover, the Ninth Circuit has held forth the possibility of federal relief for failure to instruct on a lesser included offense, if the issue is central to the defendant's theory of the case. (Bashor v. Risley (9th Cir. 1984) 730 F.3d 1228, 1240; Solis v. Garcia (9th Cir. 2000) 2 19 F.3d 922. 928.) See also United States v. Hernandez (9th Cir. 2007) 476 F.3d 791. 801. citing Beck tJ. Alabama. supra. and Gilmor-e v. Ta_vlor (1993) 508 U.S . 333. 361. B. Backg/.otintl. As to Juan Uribc (Count 11). there was substantial evidence that appellant's involvement was motivated by heat of passion - appellant's continuing sense of fear and anger over the shooting of his son. On the evening of September 24. 1995. there was a confrontation at the baptism party between Little Pete and Juan IJribe. Another person punched Little Pete in the face. (4 RT 101 1-1012, 1042.) A short time later. Little Pete and Richard Diaz performed a threatening drive-by of the baptism party. (5 RT 1295- 1297.) When the party broke up. Little Pete and Tino Alvarez cornered Uribe on a side street. Alvarez punched Uribe, while Richard Diaz displayed a gun from his car a short distance away. (4 RT 10 14- 10 15, 1028, 1030.) Later that night Little Pete was in his car with Alvarez and Diaz when they ran in- to a caravan of cars including Juan Uribe. Shots were fired from Uribe's faction, and Lit- tle Pete was hit in the head. (5 RT 132 1 .) An officer who examined Little Pete's car that night found three gunshot holes: one in the driver's side door, one in the windshield, and one just below the tail light. (4 RT 1067- 1069.) In his statement to police during the murder investigation, appellant said that he rushed to the hospital, where he found his son injured. He was told that his son came within a fraction of an inch of losing his life. (2 ACT 398.) Appellant told the detective that he came to believe that Jesse Candia. Sr. was responsible for the shooting. (2 AC'I' 40 1-402.)'" Little Petc and his tiicnds and cousins held Juan Uribe responsible. (4 RT 1098.) The following night. Jesse Range1 and l'ino Alvarez shot up Uribe's BMW. (4 RT 1086. 1100.) Richard Diaz described a confrontation at a market. in which llribe accused Diaz of shooting up his car, and his cornpanion hit Diaz. (5 RT 1340- 1342.) The cat-and-mouse game continued in downtown Madera between the two fac- tions of former fiiends. On the night of October 7, 1995, appellant hosted a barbecue at his house on Wessmith. According to Richard Diaz. appellant talked about "his son get- ting shot in the head. about getting back whoever did it." Appellant said that Juan Uribe was responsible. (5 RT 1262.) He said that he wanted to go look fbr Juan Uribe. (5 RT 1263 .) According to the prosecution case, there followed an armed expedition which led to the Durbin house and the shooting deaths of the two victims. There was also evidence that appellant was intoxicated at the time of the shoot- ings. Richard Diaz testified that appellant was drinking Presidente brandy at the barbe- cue. (5 RT 1263.) Rafael Avila refused to let appellant take his car. but agreed to drive instead, because appellant was "too drunk." ( 5 RT 1264.) 70 There was no other explanation or corroboration for this statement. There is no evidence to suggest that appellant had any reason to blame anyone other than Uribe for the shooting of his son. At the llurbin house appellant was. according to Iliaz. falling down drunk. As they walked across the yard toward the Durbin house, appellant tripped over some tree branches. and fell down. Diaz had to help him get up. because he was so drunk. (5 RT 1270.) As they drove away from the scene after the shootings. appellant accidentally dis- charged his handgun in Avila's car. twice. (5 R'T 1278.) (A .380 slug was recovered from under the front seat of Avila's car. (7 RT 171 8.).) In addition. there was evidence that the shooting of Chuck Durbin (Count I) re- sulted from an unreasonable but good faith belief in the necessity for self-defense. Cindy Durbin testified that her husband rushed into the living room in response to the intrusion by the gunmen. (6 RT 1386-1387; see 5 RT 1172 [Alvin Areizaga].) According to testimony of Richard Diaz, as they drove away from the scene, ap- pellant said that "he shot that guy because he thought he was running to get a gun." (5 RT 1278.) Jesse Range1 quoted a statement by Little Pete, in which Little Pete supposedly said that Chuck Durbin came out "from the side," and appellant shot him. (6 RT 1501 .) 'There was no evidence that appellant knew Durbin or had any reason to shoot him. ?'he jury was instructed on the elements of first and second degree murder. The jury received an instruction on voluntary intoxication as related to premeditation. (CA1,JIC 4.2 1 : 12 C-I' 2657.) No instructions were read on voluntary manslaughter (see CALJIC 8.37-8.44) or involuntary manslaughter (see CALJIC 8.45-8.47). and the record reflects no request for. or discussion of'. instructions or alternate ~ ~ e r d i c t forms on volunta- ry or involuntary manslaughter. 1. Voluntary Munslaughte)*: Juan Ui-ihe. l'he record in this case necessitated an instruction on voluntary manslaughter as to Juan Uribe. Count 11. and it was error for the trial court to fail to read the instruction sua sponte. This analysis assumes, for purposes of this argument, that appellant was properly identified as one of the gunmen in the invasion of the Durbin home." There was substantial evidence that appellant's involvement in the shooting of Juan Uribe was driven by fear and anger. and that he acted in heat of passion. '*Heat of passion" is not well-defined in the case law or the standard jury instruc- tions. (See People v. Lasko (2000) 23 Cal.4th 101 .) CALJIC 8.42, in effect at the time of appellant's trial (but not read to appellant's jury) offered the following somewhat circular explanation of sudden quarrel or heat of passion and provocation: To reduce an unlawful killing from murder to manslaughter upon the ground of sudden quarrel or heat of passion. the provocation must be of the character and depree - as naturally would excite and arouse the passion, and the assailant must act under the influence of that sudden quarrel or heat of passion. The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an or- dinarily reasonable person in the same circumstances. A defendant is not 70 The convictions in this case were obtained through allegations of premeditation and intentional killing. There were no instructions on felony murder, and none were re- quested. (See 12 CT 2697: prosecution checklist of requested jury instructions.) permitted to set up [his] [her] own standard of conduct and to justify or excuse [himselq [herself] because [his] [her] passions were aroused unless the circumstances in which the defendant was placed and the facts that con- fronted [him] [her] were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation. Legally ade- quate provocation may occur in a short. or over a considerable, period of time. The question to be answered is whether or not, at the time of the kill- ing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average dispo- sition to act rashly and without deliberation and reflection, and from pas- sion rather than from judgment. If there was provocation, whether of short or long duration, but of a nature not normally sufficient to arouse passion, or if sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, and if an unlawful killing of a human being followed the provocation and had all the elements of murder, as I have defined it, the mere fact of slight or remote provocation will not reduce the offense to manslaughter. (Emphasis added.) CALCIUM 571, adopted well after the trial here, makes a more concerted effort to define "heat of passion." The current instruction states that "[hleat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection." (Quoting People v. Berr-v The immediacy of the provocation is a factor to be considered in assessing provo- cation and heat of passion. but immediacy is not a sine qua non: provocation may be on- going, and a serious but remote provocation lnay have a long-term effect. In People v. Wharton ( 199 1 ) 53 Cal.3d 522, 57 1. this Court stated the rule as follows: . . . (TJhe court erred in refusing to instruct the jury. at defendant's request. that legally adequate provocation could occur over a considerable period of time. It was defendant's theory at trial that no single action on the part of the victim provoked the fatal blow but that the book-throwing inci- dent mas mercly the culmination of his pent-up frustration and anger ema- nating horn his ongoing dysfunctional relationship with the victim. In oth- er words. his defense theory at trial was that he killed after enduring provo- catory conduct by the victim over a period of wceks. 'The People argue there was insufficient evidence of this theory to justify the instruction. We disagree; defendant proffered evidence froin which reasonable persons could have concluded there was sufficient provo- cation to reduce murder to manslaughter. (See Wickersham, supra, 32 Cal.3d at p. 324.) Because defendant requested a "pinpoint" instruction on his theory of the case that was neither argumentative nor duplicated in the standard instructions. the trial court erred in failing to deliver it to the jury. (Wright, supra, 45 Cal.3d at p. 1144.) By the standard CALJIC instruction. the defendant is not permitted to set up a per- sonal or sub-iective standard of conduct. The sufficiency of provocation must be judged by both a subjective and an objective standard. Appellant must have been motivated by the victim's provocation. and his reaction must have been objectively reasonable by the standard of a reasonable person. The CALCRIM Commentary to No. 570 contains a comprehensive summary of cases which have considered the sufficiency of evidence of provocation. Heat of Passion: Sufficiency of Provocation-Examples In People v. Breverman, sufficient evidence of provocation existed where a mob of young men trespassed onto defendant's yard and attacked defendant's car with weapons. (People v. Breverman (1998) 19 Cal.4th 142. 163- 164 [77 Cal.Rptr.2d 870. 960 P.2d 10941.) Provocation has also been found sufficient based on thc murder of a family member (People v. Brooks (1986) 185 Cal.App.3d 687, 694 1230 Cal.Rptr. 861); a sudden and violent quarrel (People v. Elmore (1914) 167 Cal. 205. 21 1 [ I39 P. 9891); verbal taunts by an unfaithful wife (People v. Berry (1976) 18 Cal.3d 509, 5 15 1134 Cal.Rptr. 41 5. 556 P.2d 7771): and the infidelity of a lover (People v. Borchers (1958) 50 Cal.2d 32 1. 328-329 [325 P.2d 971). In the following cases. provocation has been found inadequate as a matter of law: evidence of name calling, smirking, or staring and looking stone-faced (People v. Lucas (1997) 55 Cal.App.4th 721. 739 [64 Cal. Rptr.2d 2821); insulting words or gestures (People v. Odell David Dixon (1961) 192 Cal.App.2d 88. 91 113 Cal.Rptr. 2771); refusing to have sex in exchange for drugs (People v. Michael Sims Dixon (1995) 32 Cal.App.4th 1547. 1555-1 556 [38 Cal.Rptr.2d 8593); a victim's resistance against a rape attempt (People v. Rich ( 1988) 45 Cal.3d 1036, 1 1 12 [248 Cal.Rptr. 5 10, 775 P.2d 9601); the desire for revenge (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704 [54 Cal.Rptr.2d 608,l); and a long history of criti- cism. reproach and ridicule where the defendant had not seen the victims for over two weeks prior to the killings (People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1246- 1247 [7 Cal.Rptr.3d 40 11). In addition the Su- preme Court has suggested that mere vandalism of an automobile is insuffi- cient for provocation. (See People v. Breverman (1998) 19 Cal.4th 142, 164, fn. 1 1 [77 Cal.Rptr.2d 870. 960 P.2d 10941; In re Christian S. (1994) 7 Cal.4th 768. 779, fn. 3 [30 Cal.Rptr.2d 33, 872, P.2d 5741.) In People v. Brooks, supra. the court of appeal reversed a murder conviction for failure to read an instruction on heat of passion and provocation. Since appellant did not actually see Todd murder his brother, the provocation for killing Todd might more properly be characterized as hear- ing from bystanders that Todd murdered his brother. A sudden disclosure of an event, where the event is recognized by the law as adequate, may be the equivalent of the event itself. even if the disclosure is untrue. (State v. Yanz (1901) 74 Conn. 177 [50 A. 371.) In [a] California case, citing Yanz, the court explained that where there is a reasonable belief in the informa- tion disclosed. the provocation is adequate. (People v. Logan (191 7) 175 Cal. 45. 49.) The heat of passion referred to in these examples must have both a subjective and an objective component. To satisfy the ob.jectivc component. there must be evidence of such a passion as would naturally be aroused in the mind of an "ordinarily reasonable person" under the given facts and circumstances. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) The mo- tive of revenge does not satisfy the requirement for instruction on heat of passion or provocation. (People v. Valentine (1946) 28 Cal.2d 121. 139: People v. Fenenbock (1996) 46 Cal.App.4th 1688. 1704.) Mere. the feud was ongoing and the sense of fear was constantly present. along with the sense of anger at the shooting of appellant's son; it was reasonable to expect a further violent incident to happen at any time. For these rea- sons, the element of provocation did not lessen with the passage of time. Moreover, operating in tandem with the looming sense of danger was appellant's intoxication. Everyone who came into contact with appellant the night of the shootings observed that he was intoxicated. This was substantial evidence that intoxication had in- terfered with appellant's ability to calmly reason. Even if there was an intent to kill, the formation of malice was prevented by the combined effects of intoxication and fear and anger at the threat posed by Uribe. The trial court recognized the substantial evidence of intoxication by reading CALJIC 4.2 1 on the effect of voluntary intoxication on premeditation. (12 CT 26.57.)'" 80 "In the crimes of murder in the first degree and attempted murder of the first de- gree a necessary element is the existence in the mind of the defendant of the mental state of premeditation and deliberation. "If the evidence shows that thc defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required men- tal state. For thcse reasons i t was crror to fail to instruct the jury on the effect of intoxica- tion and heat of passion and provocation on the formation of malice. and on the lesser in- cluded offense of voluntary manslaughter. in the killing of Juan Uribe. 2. Voluntary Manslaughter: Chuck Durbin. The shooting of Chuck Durbin presented different potential defenses, and different issues for the jury's consideration. Appellant had no prior contact with Chuck Durbin. He did not know Durbin, and he had no reason to fear him. By the same token, there was no cause to premeditate the killing of Chuck Durbin. (See Argument IV above.) The shooting of Chuck Durbin was entirely spontaneous, in reaction to Durbin's response to the invasion of his home. An actual but ureasonable belief in the necessity for self-defense can negate the element of malice, and reduce even an intentional killing to voluntary manslaughter. (People v. Flannel (1979) 25 Cal.3d 668, 674-683; In re Christian S. (1994) 7 Cal.4th 769, 783; see People v. Blakeley (2000) 23 Cal.4th 82, 87-88.) The response by Chuck Durbin was unanticipated - appellant did not know who was in the house before entering - and the evidence of premeditation was thin at best. Added to appellant's state of voluntary intoxication, the honest but unreasonable belief in the necessity for self-defense could have supported a verdict of voluntary manslaughter. "If from all the evidence you have a reasonable doubt whether the defendant formed that mental state, you must find that he did not have such mental state." For thcse reasons. it was error to t l i l to instruct on voluntary manslaughter as to Count I . 3. lnvoluntarv Munslnughtei- - Botl? Murder Counts. Involuntary manslaughter is the unlawful killing of a human being without either express or implied malice. (Penal Code $ 192.) A reduced mental state may be used to negate an element to a charge of murder. perhaps leading to a conviction of involuntary manslaughter. Evidence of voluntary intoxication may be considered in deciding whether there was malice. (Penal Code $5 22, 28. and 188.) A defendant may show that because of his voluntary intoxication, he did not in fact form the intent unlawfully to kill, that is, that he did not have express malice aforethought. (People v. Saille (1991) 54 Cal.3d 1103, 1114-1117.)" Evidence of voluntary intoxication alone will not reduce an offense to voluntary manslaughter unless combined with evidence of heat of passion and provocation, or evi- dence of actual but unreasonable belief in the necessity of self-defense (see discussion above). But evidence of voluntary intoxication alone may serve to reduce an offense to involuntary manslaughter, if it is extreme enough to raise a reasonable doubt of the ele- ments of intent and premeditation. (People v. Saille, supra.) * ' By the 1995 amendment to Penal Code $ 22 (b). effective after these offenses, evidence of voluntary intoxication may not abrogate a finding of implied malice, an ele- ment of second degree murder. This jury was instructed on implied malice second degree murder. (CALJIC 8.3 1. 12 CT 2665.) Here the cvidence of appellant's drinking shortly belore the shootings. together with thc evidence that he fell down and needed help to stand up as he blindly rushed to- ward the victims' house, was substantial evidence to support a defense of voluntary in- toxication. The evidence of intoxication was sufficient to raise a reasonable doubt as to the existence of intent and premeditation. hence the jury should have been instructed on involuntary manslaughter as a lesser included offense. C. Prejudice. 'There was ample evidence for the jury to conclude that appellant had been brood- ing on the life-threatening injury to his son, and the continuing threat posed by Juan Uribe, and acted from heat of passion and provocation. Moreover, the jury must have concluded that his ability to premeditate and deliberate was impaired by drunkenness. Finding himself in the Durbin living room, without any clear idea of what he was doing or why he was there, appellant may have shot Chuck Durbin in the actual but unreasona- ble belief in the necessity for self-defense. However, none of these considerations was placed before the jury under the jury instructions read in this trial. In People v. Webber (1991) 228 Cal.App.3d 1 146. 1 163, the defendant claimed that he shot the victim in a methamphetamine-induced state of paranoia. On appeal he argued that the trial court erroneously failed to instruct the jury on principles of involun- tary manslaughter. Under [People v.] Ra-v [(1975) 14 Cal.3d 201, there has to be evi- dence of two factors -- a sort of cause and effect relationship between intox- ication and lack of intent to kill. Even though Ray's defense was also self- defense. the court determined that there was sufficient evidence of a lack of an intent to kill. The sufficient evidence in Ray was that: "Defendant and others testified that he had taken a number of 'reds' (secobarbital) during the day of the killing, and there ~ i a s expert testimony t o the effect that analysis of specimens taken from defendant on the day o f the killing dis- closed .15 milligrams percent of secobarbital in defendant's bloodstream. According to the testimony of an expert witness such a drug level in con- junction with a concussion of the brain would result in difficulty in thought transmissions and in the formation of sound judgments. Several lay wit- nesses testified that defendant appeared dazed at the times of the encoun- ters." (Fn. omitted.) (14 Cal.3d at p. 25.) We imply from Ray that a lack of an intent to kill may be indicated by evidence that a defendant was acting like an automaton, robot-like or in a trance or dazed, i.e., that the body was moving without the mind. (228 Cal.App.3d at 1 162- 1 163: emphasis added.) Again, in People v. Glenn ( 199 1 ) 229 Cal.App.3d 146 1 , 1467, the court of appeal held that it was reversible error to fail to instruct on involuntary manslaughter. In the case before us, Glenn testified repeatedly he did not intend to kill Thomas. Furthermore, either version of events described by Glenn is consistent with a lack of intent to kill. Under the first version the killing could be viewed either as accidental or involuntary manslaughter based on criminal negligence. Under the second version the killing could be viewed as a case of imperfect self-defense. (Cf. People v. Welch (1982) 137 Cal.App.3d 834, 840.) The fact Glenn testified to different versions of how the stabbing occurred did not undercut his request for an involuntary man- slaughter instruction but at most raised a credibility question to be resolved by the jury. (People v. Flannel, supra, 25 Cal.3d at p. 684.) In the present case. the jury received instructions on premeditation. and on the ef- fect of voluntary intoxication on premeditation. (CALJIC 4.2 1; 12 CT 2657.) They did not receive instructions on provocation and heat of passion or on the actual but unreason- able belief in the necessity for self-defense. The jury had no route to reduce the offenses on the basis that the killings were done intentionally but without malice, leading to volun- tary manslaughter. No instructions linked evidence of intoxication to lack of malice or lack of intent to kill. The jury had no route to reduce the offense to involuntary man- slaughter. There was substantial evidence to support these lesser verdicts. and the failure to instruct on them sua sponte was a denial of due process and the right to jury trial guaran- teed by the Sixth Amendment. IX. THE TRIAL COURT FAILED TO INSTRUCT SUA SPONTE ON THE PRINCIPLES OF ACCOMPLICE TESTIMONY, AS APPLIED T O THE OUT-OF-COURT STATEMENTS O F HIS SON AND CO- DEFENDANT. * I he prosecution relied on the statements and testimony o f several persons who were potential suspects andlor accomplices to these crimes, including Richard Diaz, Juan Ramirez, and Jesse Rangel, but also including appellant's son, Little Pete. Since the statements of Little Pete were introduced through unreliable sources - the testimonies of Jesse Rangel and Frank Rangel, Jr. - and since Jesse Rangel himself was a potential ac- complice. it was particularly important that the statements be viewed with distrust, and subject to the corroboration requirement. Penal Code tj 1 1 1 1 states the rule that accomplice testimony must be corroborated. A conviction cannot be had upon the testimony of an accomplice un- less it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the cornmission of the offense or the circums- tances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. Since well before appellant's trial. it has been held that it is error for the trial court not to instruct the jury. sua sponte, that the testimony of an accomplice called by the prosecution should be viewed with distrust. (People v. Hamilton (1948) 33 Cal.2d 45. 5 1 .) Since Hamilton. the cases on point have consistently affirn~ed that an instruction on accomplice testimony must be given on the court's own motion when the accomplice is called solely by the prosecution. (See, e.g., People v. Terry (1970) 2 Cal.3d 362, 399: People v. Cortez ( 1 98 1 ) 1 15 Cal.App.3d 395. 406; see discussion in People v. Najera (2008) Cal.4th , 2008 Cal.LEXIS 6736 [*61.) Several statements of appellant's son were introduced as evidence of appellant's guilt. Richard Diaz was with Little Pete about five days after the shootings; Romi and appellant were also present. According to Diaz, Little Pete talked about his alibi. He said that they made a video to show them working at the 7-1 1 the night of the shooting. (5 RT 1283-1284.) Jesse Range1 testified that he spoke to Little Pete on the phone the night of the shootings. Little Pete said that he, appellant, Richard, and Rafael were involved. (6 RT 1492.) In a later statement by Little Pete to Jesse while they were at Frank's house in Fresno, Little Pete allegedly said (according to Jesse) that Chuck Durbin came out "from the side," and appellant, who had stayed by the front door, "shot him in the head." (6 RT 1501.) A standard jury instruction, CALJIC 3.16, was read, identifying Richard Diaz as an accomplice as a matter of law. However, no instruction was read identifying appel- lant's son as an accomplice, or directing the jury to require corroboration or view his al- leged statements with distrust. Under the instructions, the jury was flee to use the testi- mony of Jesse Rangel, quoting Little Pete, as a means of corroborating the account of Ri- chard Iliaz. This was permitted despite the fact that all three of them were accomplices: Richard Diaz and Little Pete by the terms of the prosecution's case, and Jesse Range1 by the repeated carly identifications voiced bll Cindy Ilurbin. (See Argument XIV belon. concerning argument of the prosecutor on accomplice corroboration.) The acco~nplice corroboration requirement applies not only to an accomplice's tes- timony, but also to his or her out-of'-court statements. (People v. Andrews (1989) 49 Cal.3d 200. 2 14.)" This Court has rendered contradictory opinions on whether statements of a co- defendant and alleged accomplice. such as Little Pete. are subject to section 1 1 1 1. In People v. Cofman and Marlow (2004) 34 Cal.4th 1 . this Court reviewed a case in which two defendants were charged with the same crimes. Both defendants testified. and their testimonies were subject to the standard instructions that their testimonies were 83 "Section 1 1 1 1 applies to an accomplice's out-of-court statements when such statements are used as substantive evidence of guilt. In People v. Belton (1979) 23 Cal.3d 516, we reversed a conviction for discharging a firearm at an inhabited dwelling because the extrajudicial statement of an accomplice had provided the sole evidence link- ing the defendant to the offense. The trial court in that case admitted the statement as a prior inconsistent statement after the accomplice denied on the witness stand that either he or the defendant had been involved in the corn~nission of the offense. We observed. '[although] section 1 1 1 1 speaks in terms of "testimony." it is instructive to note that courts of this state have focused on the source of the statements rather than their eviden- tiary fonn in articulating the legislative intent behind that section.' (Id. at pp. 524-525. italics in original,) We determined that the Legislature's purpose in enacting section 1 1 1 1 was to prevent convictions based solely on evidence provided by such inherently untrustworthy sources as accomplices. (23 Cal.3d at pp. 524-525; see also In re Miguel L. ( 1982) 32 Cal.3d 100. 108.) In holding that the accoinplice's prior inconsistent statement in Belton constituted testimony within the meaning of section 1 1 1 1. we said: 'To con- clude that such evidence does not fall within the ambit of section 1 1 1 1 merely because an out-of-court statement is not. strictly speaking, synonymous with testimony would be to thwart the purposes of that section. Accordingly, applying the basic principle that legis- lative intent prevails over literal construction. this court concludes that [the accomplice's] prior inconsistent statement constituted "testimony," as the term is used in section 1 1 1 1 .' sub-ject to the accomplice corroboration rule and were to be viewed with distrust. On ap- peal. both defendants co~nplained of the instructions, since the instructions cast doubt on their self-exculpatory testimonies. This Court held that despite the disadvantage to the defendants from having their own testimonies labeled as untrustworthy, it was necessary that each of the co-defendant testimonies be sub-ject to the standard instructions on ac- complice statements. Because the evidence abundantly supported an inference that each defendant acted as an accomplice to the other. and because each testified and, to some extent, sought to blame the other for the offenses, the court was required to instruct the jury that an accomplice-defendant's testimony should be viewed with distrust to the extent it tended to incriminate the co- defendant. [fn.] (People v. Alvarez ( 1996) 14 Cal.4th 155, 2 17-2 18.) Such, essentially, is what the foregoing instruction did. The instruction correctly informed the jury that, insofar as it assigned one accomplice-defendant's testimony any weight in determining the codefendant's guilt, it must view such testimony with distrust and find sufficient corroboration, as elsewhere defined for the jury. (Id. at 105- 106; emphasis added.) This Court has taken a similar position several times, as noted in People v. Alva- rez, supra. 14 Cal.4th at 2 18: . . . In People v. Terry (1 970) 2 Cal.3d 362, 399, we stated that when, as here. a defendant testifies on his own behalf, denies guilt, and incrimi- nates his codefendant, a trial court has authority to instruct the jury that his testimony should be viewed with distrust as that of an accomplice. We be- lieve our statement was sound, and now so hold. The superior court deli- vered such an instruction: the testimony of an accomplice-defendant that tends to incriminate his codefendant should be viewed with distrust. Its li- mitation--the accomplice-defendant's testimony should be viewed with dis- trust to the extent that it tends to incriminate his codefendant--was altogeth- er proper. (Cf. People v. Williams, supra. 45 Cal.3d at pp. 13 13- 13 14 [im- (People v. Belton, supra. 23 Cal.3d at p. 526.) Similarly, here accomplice Sanders's tape-recorded statement was sub-ject to the corroboration requirement of section 11 1 1 ." plying that a trial court ma) instruct the jury that an accomplice's testimony should be viewed with distrust insofar as it tends to incriminate the defen- dant. but should not be so viewed insofar as it does not].) As noted. an accomplice's out-of-court statements are treated as "testimony" un- der the accomplice-corroboration rule. (People v. Andrews, supra.) Nevertheless. this Court has held that a co-defendant's out-01'-court statements may not be subject to the ac- complice-corroboration rule. Recall that Fields's statements were properly found to be declara- tions against penal interest. "'The usual problem with accomplice testimo- ny--that it is consciously self-interested and calculated--is not present in an out-of-court statement that is itselfsuf$cientlv reliable to be allowed in evi- dence." (People v. Sully (1991) 53 Cal.3d l 195, 1230, italics added.) For example. we have explained that out-of-court statements made in the course of and in furtherance of a conspiracy "were not made under suspect cir- cumstances and therefore were sufficiently reliable to require no corrobora- tion." (People v. Williams (1997) 16 Cal.4th 635, 682.) Fields's statements to Esquivel were themselves made under conditions sufficiently trustworthy to permit their admission into evidence despite the hearsay rule; namely, they were declarations against his penal interest. Therefore, no corrobora- tion was necessary, and the court was not required to instruct the jury to view Fields's statements with caution and to require corroboration. (People v. Brown (2003) 3 1 Cal.4th 5 18, 555-556.) The rationales of these two lines of authority - the Sully/Brown line emphasizing the reliability of a co-defendant's out-of-court statements against penal interest and the Coffman . . and Mar-low/Alvarez line emphasizing the unreliability of a co-defendant's in- court sworn testimony - cannot be easily reconciled. An accomplice always has a motive to shift the blame away from hirnself and onto a co-defendant. 1-lerc. appellant's son had a natural motive and impulse to put appellant fully into the scenario at the Durbin house. For instance. if Little Pete had shot both vic- tims. while appellant stood by in a drunken stupor. it might bc expected that in the retel- ling by Little Pete. appellant would play a more active role. In addition. the statements of Little Pete implicating appellant came into evidence through unreliable sources: Jesse Range1 and Frank Rangel. Jr. Jesse Range1 in particular was motivated to provide a false accusation against appellant (see Argument VI above). By providing incriminating statements against appellant, Jesse effectively removed hiin- self from the scene; by providing evidence to implicate both Big Pete and Little Pete he bought himself additional insurance against prosecution. Since he was identified by Cin- dy Durbin as one of the shooters. there was evidence to conclude that he was an accom- plice. (See Argument XIV below.) Frank Rangel. Jr. was a drug and alcohol abuser, and an unreliable conduit of statements by Little Pete describing the shootings. The confrontation considerations enunciated in Crawford v. Washington (2004) 541 U.S. 36, dictate that an out-of-court statement be viewed with caution or distrust. Little Pete's out-of-court statements were not well-authenticated; had he been available to testifi, it could have been established that he did not even make them. Even if Little Pete's out-of-court statements are not deemed "testimonial" under Crawford, they are still sub-ject to the "reliability" assessment of Ohio v. Robet-ts ( 1980) 448 U.S. 56. (People v. Corella (2004) 122 Cal.App.4th 46 1.467; see discussion at p. 1 17 above.) Due to their source, the Little Pete statements were not reliable and should have been tested under standard rules applied to accomplice testimony. In short. the out-of-court statements attributed to 1,ittle Pete were less reliable than in-court accomplice testimony. They should have been sub-ject to the accomplice instruc- tions. Appellant was prejudiced by the lack of instructions. The standard accomplicc instructions (corroboration of accomplices (CALJIC 3.1 1 at 12 C'T 2650): testimony of accoinplice to be viewed with distrust (CALJIC 3.18 at 12 CT 2654") were read in this case. but only as to Richard Diaz. who was deemed an ac- complice as a matter of law. (CALJIC 3.16 at 12 CT 2653.) Pedro Enriquez Rangel, I11 (Little Pete) was not included as a designated accom- plice." Since he was a charged co-defendant. he would properly have been designated an accomplice as a matter of law. The accomplice corroboration rule would have made a substantial difference in this case, if applied to the alleged out-of-court statements of Little Pete. To a very large extent. the prosecution case was based on the interlocking accomplice testimonies of Ri- chard Diaz and Jesse Rangel, corroborated by statements attributed to Little Pete. Indeed, '' l'he language referencing ..distrust" of accomplice testimony was later changed to "care and caution." after appellant's trial. See People v. Guiuan (1998) 18 Cal.4th 558, 569. X5 The District Attorney proposed an instruction on the defendant's burden to prove that a corroborating witness is an accomplice (CALJIC 3.19), directed at the testimony of Jesse Rangel. Defense counsel opposed the instruction because it put the burden of proof on the defense to prove that Jesse Range1 was an accomplice. (8 RT 20 17; 9 RT 2 1 18; see 9 RT 21 76-2 177 [defense counsel argued that Jesse Rangel provided a false alibi].) Little Pete was never mentioned in the context of potential witnesses subject to the accomplice instructions. it could be supposed that Cindy Durbin's testimony identifying Little Pete rather than Jesse Range1 was adapted to conform to the emerging accomplice testimony. By includ- ing the statements of Little Pete in the accomplice corroboration rule. the jury would not have been disposed to reach a conviction based solely on accomplice testimonies and statement^.^" l'he rule requiring distrust of accomplice statements (later modified to "care and caution") would also have had a substantial impact on the outcome of this trial, if applied to witnesses other than Richard Diaz. It was particularly crucial that the jury recognize that at the same they were permitted to hear the out-of-court statements of Little Pete be- cause the statements were made against penal interest. there was also a self-serving as- pect to the statements, shifting blame to appellant. It was not fair to emphasize one as- pect over the other. In addition, to the extent that the accomplice testimonies and statements corrobo- rated each other, the jury should have been informed that Little Pete's statements were not to be used to corroborate Richard Diaz' testimony (CALJIC 3.13: one accomplice may not corroborate another). 86 See Bruton v. United States ( 1968) 39 1 U.S. 123, 135- 136: the need for confronta- tion is particularly acute "where the powerfully incriminating extrajudicial statements of a codefendant. who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. [fn.] The unreliability of such evidence is intolerably compounded when the alleged accomplice. as here. does not testi@ and cannot be tested by cross-examination." For thcsc reasons. it was reversible error to fail to identit') Little Pete as an accom- plice in standard jury instructions. X. THE CONVICTION ON COUNT TWO, MURDER OF JUAN URIBE, MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO READ, SUA SPONTE, A JURY INSTRUCTION ON THE EFFECT O F VOLUNTARY INTOXICATION ON THE ELEMENT OF SPECIFIC INTENT T O AID AND ABET. Appellant had a lot to drink on the evening leading up to the murders. In his be- fuddled state he could barely keep up with his son. who was intent on tracking down Juan Uribe. The intoxication defense became an issue at trial. However. the jury was not properly instructed that intoxication is a defense to the element of specific intent to aid and abet in criminal conduct which results in murder. as a natural and probable conse- quence. Rule. In People v. Mendoza ( 1998) 18 Cal.4th 1 1 14. the Court considered whether evidence of voluntary intoxication is relevant to the criminal liability of an aider and ab- ettor. In that case the defendant (Valdez) consumed eight to ten beers early in the even- ing. Later he was involved in a violent confrontation, during which a co-defendant shot into a building and killed a person. An expert testified that the defendant's alcohol con- sumption might have been related to his later inability to remember the events around the shooting. ?'he Court held that evidence of voluntary intoxication is relevant to criminal lia- bility as an aider and abettor. Defendants may present evidence of intoxication solely on the ques- tion whether they are liable for criminal acts as aiders and abettors. Once a jury finds a defendant did knowingly and intentionally aid and abet a crimi- nal act. intoxication evidence is irrelevant to the extent of the criminal lia- bility. A person who knowingly aids and abets criminal conduct is guilty of not only the intended crilne but also of any other crime the perpetrator ac- tually commits that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor ac t~a l l~v fo- resaw the additional crime. but whether. judged ob-jectively, it was reason- ubly foreseeable. [Citation.] (Id. at 1133.) Moreover. if there is instruction on voluntary intoxication. as here. then a jury in- struction is required to connect the evidence of intoxication to the defendant's criminal responsibility as an aider and abettor If the court gives any instruction at all on the relevance of intoxica- tion (see People v. Castillo, supra, 16 Cal.4th at p. 1014 [no sua sponte du- ty to instruct on intoxication]), it might simply instruct that the jury may consider intoxication in determining whether a defendant tried as an aider and abettor had the required mental state. It might also instruct that the in- toxication evidence is irrelevant on the question whether a charged crime was a natural and probable consequence of the target crime.. . . (Id. at 1 134.) Background. The prosecution of this case was undertaken on the theory that, as to the killing of Juan Uribe, appellant was an aider and abettor to the actions of his son (see discussion in Argument V above). This record contains abundant evidence that appellant was drunk from the time the plan to assault llribe was hatched. through the shootings on East Central Avenue, and lat- er in the evening. Richard Diaz testified that appellant was drinking Presidente brandy at the barbe- cue. (5 R'I' 1263.) Rafael Avila refused to let appellant take his car. but agreed to drive instead. because appellant was "too drunk." ( 5 RT 1264.) At the Durbin house appellant was. according to Diaz. falling down drunk. As they walked across the yard toward the Durbin house, appellant tripped over some tree branches, and fell down. Diaz had to help him get up, because hc was so drunk. ( 5 RT 1270.) As they drove away fiom the scene after the shootings, appellant (who was a pro- ficient mechanic) accidentally discharged his handgun in Avila's car, twice. (5 RT 1278.) (A .380 slug was recovered from under the front seat of Avila's car. (7 RT 1718.).) According to the testimony of Jesse Rangel, in a telephone conversation later that evening Little Pete was drunk and joking, and appellant's speech was uncharacteristically violent. ( 6 RT 1493. 1526.) The trial court instructed the jury on aiding and abetting and on the doctrine of natural and probable consequences. and on the relevance of voluntary intoxication to spe- cific intent. The trial court read CALJIC 3.00 on principals, to include aiders and abettors as well as perpetrators." The court then defined aiders and abettors. in the language of CALJIC 3.01 .8X 87 "Persons who are involved in committing or attempting to commit a crime are re- ferred to as principals in that crime. Each principal. regardless of the extent or manner of participation is equally guilt>. "I'rincipals include: "1. Those who directly and actively commit or attempt to commit the act constitut- ing the crime. or The liability of aiders and abettors for the natural and probable consequences of a criminal act aided and abetted was explained in the language of CALJIC 3 . 0 2 . ~ ~ Howev- "2. Those who aid and abet the com~nission or attempted commission of the crime." 8 8 "A person aids and abets the commission or attempted commission of a crime when he, " ( I ) With knowledge of the unlawful purpose of the perpetrator, and "(2) With the intent or purpose of coinrnitting or encouraging or facilitating the commission of the crime, and "(3) By act or advice aids. promotes, encourages or instigates the commission of the crime. "Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. "Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting." 89 "One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natu- ral and probable consequence of the crime originally aided and abetted. "In order to find the defendant guilty of the attempted murder of Cindy Durbin, you must be satisfied beyond a reasonable doubt that: "1. The crime of murder was committed: "2. That the defendant aided and abetted that crime; "3. That a co-principal in that crime committed the crime of attempted murder: and er. CAI,JIC 3.02 was modified to apply only to the attempted inurder of Cindy Durbin. Ilnder the instruction. inurder (presumably the inurder of Juan Uribe) was the target of- fense, and the attempted inurder of Cindy Durbin was posed as, potentially, the natural and probable consequence. Appellant was acquitted of the attempted murder of Cindy Durbin. The instructions went on to explain the relevance of voluntary intoxication to the mental state for first degree murder. CALJIC 4.2 1 was read. explaining the connection between evidence of intoxication to the elements of premeditation and del iberat i~n.~" The court also read CALJIC 4.22, defining voluntary intoxication." - "4. The crime attempted murder was a natural and probable consequence of the cominission of the crime of inurder." 90 "In the crimes of murder in the first degree and attempted murder of the first de- gree, a necessary element is the existence in the mind of the defendant of the mental state of premeditation. "If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required men- tal state. "If from all the evidence you have a reasonable doubt whether the defendant formed that mental state, you must find that he did not have such mental state." 9 1 "Intoxication of a person is voluntary if it results from the willing use of any in- toxicating liquor. drug or other substance. knowing that it is capable of an intoxicating effect or when he willingly assumes the risk of that effect. "Voluntary intoxication includes the voluntary ingestion. in-jecting or taking by any other means of any intoxicating liquor. drug or other substance." Defense attorney Sciandra addressed voluntary intoxication in his argument to the Now. the District Attorney talked about the lesser included offenses of second degree murder also. And I gucss would be attempted second de- gree murders. You will get an instruction about voluntary intoxication. I'm in a terribly awkward situation here, but I'm going to argue this, our position. Let me make it absolutely clear our position is that this case has not be[en] proven beyond a reasonable doubt. Sure there is suspicion, but it is not proven beyond a reasonable doubt. However, I must argue the lesser included offenses here. All I'm going to say about that is you will be given an instruction that talks about voluntary intoxication. You can consider that in this case. You can consider it as to whether or not there was premedita- tion and deliberation. I ' l l just cite to you the testimony of Richard Diaz about the state of intoxication of Pedro Rangel, Jr.. and the fact that he tripped getting out of the car. The fact he was drinking. The fact he was drunk. And you can consider that when you are determining whether or not these were first de- gree murders, the attempted first degree murder of Cindy Dixon [sic]. The prosecution did not refer to the intoxication defense in either its opening ar- gument or closing argument. The jury, however, addressed the sub-ject specifically in a question to the trial court. Jury deliberations began on the afternoon of September 30. 1998. The jury re- quested a read-back of the testimonies of Cindy Durbin, Richard Diaz. Jesse Rangel, and Richard Fitzsimmons. (9 KT 2283.) Deliberations resumed on the morning of October 1, 1998. That afternoon. the jury sent a note which read. "Clarification of a law, CALJIC 3.02, 3.0 1 , Intoxication Consideration." ( 10 RT 2292.) Calling the jury into the courtroom. the trial court informed them, "I discussed the matter with counsel and we can't clarify the general instruction any further than it's al- ready set forth. If you had a specific question we might be able to answer that if you would want to put that in writing." The court declined to take an oral question from the jury foreperson. and asked that any further question be in writing. The trial court com- mented that the court had read the jury instruction wrong. (10 RT 2293.) The foreperson replied, "Okay. But it needs to come from you." The court then reread CALJIC 3.01 and 3.02. (10 RT 2293-2295; see above.) On its own suggestion, the trial court also reread the instruction on voluntary intoxication, CALJIC 4.21. (10 RT 2295; see above.) The jurors retired for further deliberations. Verdicts were returned later that after- noon. ( 1 1 CT 2383.) Analysis. There was substantial evidence of intoxication on this record. The trial court read the standard jury instruction on intoxication, and defense counsel argued the issue to the jury. (Compare People v. Roldan (2005) 35 Cal.4th 646, 715 [insufficient evidence to trigger intoxication instruction].) However, the jury instructions utilized here were insufficient to permit the jury to make proper use of the intoxication defense. There are two distinct forms of aider and abettor liability under California law, and the intoxication defense relates to each form in different ways. In one form of aider and abettor liability. the aider and abettor must share the knowledge and intent of the perpe- trator: in a charge of first degree inurder (non-felony inurder). the aider and abettor must have the specific intent to kill, and must deliberate and premeditate the killing. See CALJIC 3.01 and People v. Beetnan (1984) 35 Cal.3d 547. In the other forin of aider and abettor liability, the aider and abettor must aid and abet a criininal act (target offense). the natural and probable consequences of which in- clude the charged offense. See CAI,JIC 3.02 and People v. Pretvrnan (1996) 14 Cal.4th 248. The jury instructions read in appellant's trial. perhaps inadvertently, triggered both forms of aider and abettor liability. The trial court instructed on the traditional form of aider and abettor liability, expressed in CALJIC 3.01. The trial court also instructed on the "natural and probable consequences" forin of aider and abettor liability, expressed in CALJIC 3.02: "One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the criine originally aided and abetted." The language of modified CALJIC 3.02 goes on speak of the attempted murder of Cindy Ilurbin. but there is no reason to think that the jury did not apply the natural and probable consequences doctrine to the murder of Juan Uribe as well. The jury could have viewed appellant as a follower in this scenario, struggling to keep up with his son. Appellant may have believed that his son was bent on threatening or assaulting Juan Uribe. but that he was not necessarily out to kill him. The "natural and probable consequences" doctrine allowed the jury to assign re- sponsibility for the murder to appellant. through his participation in his son's extremely dangerous conduct. 'The intoxication defense relates to each of the two aider and abettor doctrines in different ways. In the first. the older and more traditional form." the defendant's intoxi- cation is relevant to the mental state (here, deliberation and premeditation) and to the ne- cessary element of specific intent to kill. In the modified language of CALJIC 4.21 (see above), this jury was instructed that evidence of intoxication is relevant to "the mental state of premeditation.'' There was no parallel instruction to encompass the role of intoxication affecting the specific intent to aid and abet the conduct of appellant's son, conduct which then re- sulted in the killing as a natural and probable consequence. Appellant's role as an aider and abettor to Little Pete in tracking down Juan Uribe could have been viewed by the jury as enough to create liability for the murder, as a "natural and probable consequence." It was essential that the intoxication defense, already recognized by the trial court, be ex- tended to this species of criminal liability. The opinion in People v. Mendoza, supra, relating evidence of voluntary intoxica- tion to the "natural and probable consequences" fonn of aider and abettor liability. was "' CALJlC 3.02 was not modified to include the "natural and probable conse- quences" instruction until the 1992 revision, approved in People v. Mouton (1993) 15 Cal.App.4th 13 13. 1320. filed on August 13. 1998. Appellant's trial began with jury selection on August 18, 1998. ( 1 1 CT 2346.) -1'he jury was instructed on the guilt phase at the end of September. .l'o the extent that People v. Mendoza changed the rule for instruction on voluntary intoxica- tion and aider and abettor liability. it was fully effective at the time of appellant's trial. CALJIC 4.2 1.2 was adopted almost immediately. and appeared in the pocket part to CALJIC 6th Edition in early 1999: In deciding whether a defendant is guilty as an aider and abettor, you may consider evidence of voluntary intoxication in determining whether a defendant tried as an aider and abettor had the required mental state. [However, intoxication evidence is irrelevant on the question whether a charged crime was a natural and probable consequence of the [target] [orig- inally contemplated] crime.] More recently, CALCRIM treats the defense of voluntary intoxication on aider and abettor liability in at least three separate instructions: 404 among the instructions on aiding and abetting,93 625 among the instructions on and 3426 among the in- structions on defensesag5 93 "If you conclude that the defendant was intoxicated at the time of the alleged criine, you may consider this evidence in deciding whether the defendant: "A. Knew that intended to coln~nit ; "AND "B. Intended to aid and abet in committing . "Someone is intoxicated if he or she (took[,]/ [or] used[,]/[or] was given) any drug. drink. or other substance that caused an intoxicating effect. "[Do not consider evidence of' intoxication in deciding whether is a natural and probable conse- quence of .]" 0 4 "You may consider evidence. if' any. of the defendant's voluntary intoxication on- ly in a limited way. You may consider that evidence only in deciding whether the defen- dant acted with an intent to kill[,] [or] [the defendant acted with deliberation and preme- ditation[,]] [[or] the defendant was unconscious when (helshe) acted[,]] [or the defendant .] "A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. "You may not consider evidence of voluntary intoxication for any other purpose." 95 "You may consider evidence, if any, of the defendant's voluntary intoxication on- ly in a limited way. You may consider that evidence only in deciding whether the defen- dant acted [or failed to do an act] with . "A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink. or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. "[Do not consider evidence of intoxication in deciding whether was a natural and probable consequence o f .] "In connection with the charge of the People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with . If the People have not met this burden. you must find the defendant not guilty of . "You may not consider evidence of voluntary intoxication for any other purpose. [Voluntary intoxication is not a defense to street where lesser-related offenses are at issue." (Id. at 127.) The Court then noted the uncertainty that had been spawned by the Geiger rule. under which the courts of appeal had great dif'ficulty discerning when a lesser-related of- fense was supported by the evidence, leading to conflicting results. (Id. at 13 1 . ) The Court also held that although the rule of instruction on lesser-included offenses increases the reliability of the jury's fact finding process. the Geiger rule distorted the process by exposing the prosecution to the burden of proof on a charge which it had not sought or anticipated. (Id. at 132.) The Birks opinion went on to note the cool reception received by the Geiger rule in other states. (Id. at 133.) Finally, the Birks opinion concluded that "a serious question arises whether such a right can be reconciled with the separation of powers clause." (Id. at 134.) However, on this last point the Birks opinion declined to reach a conclusion. "We need not finally re- solve the separation of powers issue here. It is enough to invoke the established principle that when reasonably possible, courts will avoid constitutional or statutory interpretations in one area which raise '"serious and doubtful constitutional questions"' [citations]." (Id. at 135.) All of the above considerations were deemed enough to jettison the Geiger rule of mandatory instruction on lesser-related offenses. A criminal defendant may not insist on an instruction on a lesser-related (but not included) offense merely because it is supported by the evidence in the trial record. and could support a lesser conviction as an alternative to the charged offense. Subsequent opinions of this Court have referred to the Birks opinion only as re- jecting the Geiger mandatory rule. without discussing the trial court's discretion to con- sider lesser-related offense instructions on a proper record. (See People v. Rundle (2008) 43 Cal. 4th 76. 147 (emphasis added): "In Birks. however. we overruled the holding of Geiger that a defendant's unilateral request for a related-offense instruction must be hon- ored over the prosecution's objection.") Of course, the issue does not even arise in the absence of substantial evidence supporting the lesser-related offense. (See People v. Kraft (2000) 23 Cal.4th 978, 1064- 1065: "Defendant contends the trial court erred in refusing to instruct on accessory after the fact ( $ 32) as a lesser-related offense to murder in connection with those counts where the evidence showed some connection between defendant and the victim, but no evidence showed the degree of his involvement in the killing. We disagree: Even were there evi- dence supporting a theory of accessory liability. which the trial court properly found lack- =, defendant was not entitled to instructions on lesser-related offenses. (People v. Birks, supra, 19 Cal.4th at p. 136. retrospectively overruling People v. Geiger ( 1 984) 35 Cal.3d 5 10.)" (emphasis added.)) Birks in the Courts of Appeal. Nevertheless. the courts of appeal have often read the Birks opinion as taking the issue of lesser-related offenses entirely away from the trial court.9x These court of appeal decisions trcat the issue as onc ofjurisdiction or separation of powers. as if the Birks opinion had gone on to say that trial courts have no inherent constitutional authority to present an uncharged lesser-related offense to a jury. The con- clusion reached by those opinions - that trial courts lack the authority to consider instruc- tions on lesser-related offenses - is unsupported by the Birks opinion, and should be re- jected. California trial courts can and should retain the authority to present instructions on lesser-related offenses to the jury. where necessary and appropriate. The main concern expressed in the Birks opinion was one of fairness to the prosecution, that it not be sur- prised by a charge, even a related charge. which it must prove or disprove at the cost of 98 See the following appeals court opinions: "The obligation to instruct includes giving instructions on lesser-included offenses when warranted by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) However, a defendant has no right to instructions on lesser-related offenses even if he requests the instruction and it would have been supported by substantial evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1064.) California law does not permit a court to instruct on an uncharged lesser-related crime unless agreed to by the prosecution. (People v. Birks (1998) 19 Cal.4th 108. 136-137.) Here. the prosecution objected to the instruction." (People v. Valentine (2006) 143 Cal.App.4th 1383, 1387; emphasis added.) "Since Cowan was decided, our state Supreme Court has held that instructions on lesser-related offenses must not be given over the People's objection. (People v. Birks (1998) 19 Cal.4th 108, 136.)" (People v. Overman (2005) 126 Cal.App.4th 1344, 1359; emphasis added.) "Martinez next contends the trial court erred in refusing to instruct on the lesser- related offense of trespass. Iie recognizes that the court in People v. Birks (1998) 19 Cal.4th 108, 136 overruled People v. Geiger ( 1984) 35 Cal.3d 5 10, which had permitted courts to give such instructions. Under Birks, supra, 19 Cal.4th 108, trial courts can no longer - instruct juries on such related. but not included. offenses without the prosecutor's permission." (People v. Martinez (2002) 95 Cal.App.4th 58 1. 586; emphasis added.) losing a conviction on the higher charged offense. 'This concern can and should be ad- dressed on a case by case basis. by which the trial court retains the discretion to consider instructions on a lesser-related offense. if necessary to the ends ofjustice. This was the essential point oSJustice Mosk's concurrence in Birks: . . . By giving any instruction that is over-favorable in any way to any defendant. the trial court, by definition, erroneously invites the jury to find the defendant not guilty of the offense charged. But simply by erring in this regard, it does not exceed its power. True, it may be deemed to misuse its authority to dispose of charges. It cannot be said. however, to use the prosecutor's authority to bring charges in the first place. The result is no different if, by instructing on a lesser "related" offense, it erroneously in- vites the jury to find the defendant not guilty of the offense charged. Here too, it may misuse its own authority. but does not use the prosecutor's. (People v. Birks, supra, 19 Cal. 4th at 139.) In this view. presenting the jury with an alternative lesser-related offense does not im- pinge on the prosecutor's authority, because it does not involve a reformulation of the original charge. The Issue in Other Jurisdictions. This Court in Birks was concerned with the rela- tively cool reception received by the Geiger decision in other states. Only a handful of states ever warmed to the Geiger concept. particularly the mandatory aspect of the lesser- related instruction requirement. ( 19 Cal.4th at 133, fn. 17.) However, the other-states comparison changes considerably when the lesser-related instruction is viewed as a dis- cretionary option for the trial court. Thcrc are a substantial number of states which ac- knowledge the trial coun's discretion to consider lesser-related offenses." Many states still adhere to the view that instructions are only permitted on lesser- included offenses."") Howcver. those states adopting thc traditional strict elements stan- 90 Alaska (Lamnpkin v. State (2006) 141 P.3d 362 and State v. Minano (1985) 7 10 P.2d 101 3); Colorado (People v. Early (1 984) 692 P.2d 1 1 16): Florida (Sanders v. State (2006) 944 So.2d 203 ["necessary" versus "permissive" lesser offense instructions]); Georgia (Gibson v. State (2004) 593 S.E.2d 861): Hawaii (State v. Kupua (1980) 620 P.2d 250); Michigan (People v. Jones (1984) 354 N.W.2d 261 and People v. Beach (1 988) 4 18 N.W.2d 86 1): Mississippi (Moore v. State (200 1) 799 So.2d 89); Montana (State v. Gopher (1981) 633 P.2d 1195); Nevada (Moore v. State (1989) 776 P.2d 1235); New Jersey (State v. Clarke (1985) 486 A.2d 935); New Mexico (State v. Collins (2005) 110 P.3d 1090); Rhode Island (State v. Raposa (1966)217 A.2d 469); South Dakota (State v. Hoadley (2002) 651 N.W.2d 249); Tennessee (State v. Allen (2002) 69 S.W.2d 18 1); Utah (State v. Baker (1983) 67 1 P.2d 152, and see State v. Knight (2003) 79 P.3d 969). 100 Alabama (Apricella v. State (200 1) 809 So.2d 84 1); Arizona (State v. Ennis (1988) 689 P.2d 570); Arkansas (Cluck v. State (2005) 209 S.W.3d 428); Connecticut (State v. Arreaga (2003) 816 A.2d 679); Idaho (State v. Curtis (1997) 944 P.2d 1 19); Illinois (People v. Gibson (1985) 484 N.E.2d 858, but see People v. Dace (1984) 470 N.E.2d 993); Indiana (Fisher v. State (2004) 810 N.E.2d 674); Iowa (State v. Mateer (1986) 383 N. W.2d 533); Kansas (State v. Percival(2003) 79 P.3d 2 1 1 ); Kentucky (Rogers v. Com. (2002) 86 S.W.2d 29); Louisiana (State v. Wright (2003) 840 So.2d 1271); Maine (State v. Crocker (1982) 445 A.2d 342); Maryland (Howard v. State (1986) 503 A.2d 739); Massachusetts (Corn. v. Wilson (200 1) 754 N.E.2d 1 13); Minnesota (State v. Campbell (1985) 367 N.W.2d 454; State v. Penkaty (2006) 708 N.W.2d 185); Missouri (State v. Thurston (2003) 104 S.W.3d 839); Nebraska (State v. Williams (1993) 503 N.W.2d 561); New Hampshire (State v. Gordon (2002) 809 A.2d 748); New York (People v. Barney (2003) 786 N.E.2d 31); North Carolina (State v. Burgess (2007) 639 S.E.2d 680: Ohio (Stae v. Johnson (2006) 858 N.E.2d 1144): Oklahoma (Scott v. State (2005) 107 P.3d 605); Oregon (State v. Sears (1984) 689 P.2d 1324): Pennsylvania (Corn. v. Einhorn (2006) 9 1 1 A.2d 960): Texas (Sorto v. State (2005) 173 S.W.2d 469); Vermont (State v. Alexander (2002) 795 A.2d 1248); Virginia (Ke~)es v. Corn. (2002) 572 S.E.2d 512); Washington (State v. Godsey (2006) 127 P.3d 1 1 ) ; West Virginia (State v. Louk (1981) 285 S.E.2d 432); Wisconsin (State v. Verhasselt (1978) 266 N.W.2d 342); Wyoming (Dean v. State (2003) 77 P.3d 692. but see Balsej) v. State (1983) 668 P.2d 1324). dard often require lesser-included ot'f'ense instructions on the basis of "some evidence." or "slight evidence," with the result that instructions on lesser-included offenses may be mandatory where they would not be required under a more stringent regime. In Califor- nia. in contrast. lesser-included offense instructions are only mandatory where there is a demonstration of "substantial evidentiary support." (People v. Breverrnan (1998) 19 Cal.4th 142, 160.) Since California requires "substantial evidentiary support" to trigger mandatory instructions on lesser-included offenses, trial court discretion to instruct on lesser-related offenses is necessary. Instruction on lesser-related offenses, where appro- priate, will keep California's procedure in conformity with procedure in the majority of American jurisdictions. Separation of Powers. This Court has found no separation of powers violation in similar situations, where trial court decisions may alter the nature of the offense charged by the prosecutor. (See People v. Tenorio (1970) 3 Cal.3d 89; People v. Superior Court (Romero) (1996) 13 Cal.4th 497; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968; People v. Carmony (2004) 33 Cal.4th 367.) The Court's avoidance of the separation of powers rationale was underlined by the concurring opinion of Justice Werdegar in Bivks, which found the discussion of separa- tion of powers "unnecessary to the result." (19 Cal.4th at 139.) See, in general. Annot. "Lesser-Related Offense Instructions: Modern Status," 50 A.L.R.4th 108 1 . Justice Mosk. concurring. also opined that. while the Geiger rule had proven to be unworkable and should be abandoned. it would not be beyond the trial court's jurisdiction to instruct on lesser-related offenses. (Ibid.) Shortly after the Birks opinion. Justice Werdegar. now speaking for the Court. again emphasized that the discussion of the separation of powers doctrine in Birks was unnecessary to the result. (People v. Hernat~dcz (1998) 19 Cal.4th 835, 846-847.)''' On the same day it delivered the Birks decision, the Court delivered its decision in People v. Breverman (1998) 19 Cal.4th 142. The ma-jority opinion in Breverman, au- thored by Chief Justice George, summarized that the effect of the Birks opinion was "to abrogate the California rule entitling the defendant to demand instructions on lesser mere- ly related offenses supported by the evidence." (People v. Breverman, supra, 19 Cal. 4th at 168; emphasis added.) Thus, the majority opinion in Birks re.jected the Geiger rule, which had given the defendant absolute control over the reading of lesser-related offenses. The opinion strongly stated that it would often be unfair to the prosecution to force it to bear the bur- den of proof on a lesser-related offense, fighting on a ground which it had not chosen, or l o ' "The rule requiring that a court address a potentially dispositive statutory issue be- fore turning to a constitutional one 'is itself an application of the larger concept of judi- cial self-restraint. succinctly stated in the rule that "we do not reach constitutional ques- tions unless absolutely required to do so to dispose of the matter before us."' (Guardino. supra at p. 230. quoting People v. Williams (1976) 16 Cal.3d 663, 667; see also People v. Reyes (1998) 19 Cal.4th 229, 250 (conc. and dis. opn. of Werdegar, J.) [because reasona- ble suspicion existed on the facts, court should not decide whether Fourth Amendment permits warrantless search of adult parolee absent reasonable suspicion]; People v. Birks (1998) 19 Cal.4th 108. 139 (conc. opn. of Werdegar, J.) [declining to express an opinion on ma-jority's gratuitous discussion of the separation of powers question];. . . ." suffer the risk of conviction on a lesser-rclated offense. not included in the elements. which it had not charged. 13ut the Coun stopped short of invoking the separation of pow- ers doctrine. This Court did not hold that the trial court is limited by separation of pow- ers. It did not hold that consideration of lesser-related orfenses is beyond the constitu- tional authority of the trial court, or that the trial court cannot consider the reading of in- structions on lesser-related offenses. The only question in Birks was whether lesser-related instructions are mandatory. They are not mandatory. But the trial court may nevertheless have the discretion to con- sider lesser-related instructions in an appropriate case - that discretion has not been fore- closed by this ~ourt ." ' Prosecution Right to Notice. There was certainly ample evidence that appellant assisted his son in his flight from Madera, as well as in the effort to create an alibi by creating the false alibi videotape. These were the acts of an accessory. Whether the prosecution would have been unfairly prejudiced by instructions on the lesser-related offense is an issue that could have been addressed by the trial court. but was not. From this record it appears that the prosecution would not have tried its case in any different manner by taking into account the possibility ol' an alternative verdict of ac- "I2 Note that the opinions in Schmuck v. United States, supra, and Hopkins v. Reeves, supra, contain no discussion of the separation of powers doctrine. Schmuck involves an interpretation of federal criminal procedure. while Hopkins v. Reeves involves the scope of federal due process protections in habeas corpus: neither found any occasion to ad- dress a separation of powers question. cessory; indeed the prosecution case was aiined precisely at the conclusion that appellant was merely an accessory and therefore not guilty of murder. The prosecutor's right to notice is not absolute. Even the defendant's constitu- tional right of notice is sub-ject to a requirement of pre.judice or materiality. "No accusa- tory pleading is insufficient, nor can the trial. judgment. or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not preju- dice a substantial right of the defendant upon the merits.' (Penal Code tj 960.)" (People v. Thomas ( 1987) 43 Cal.3d 8 18, 826; People v. Ramirez (2003) 109 Cal.App.4th 992,999.) By the same token, only a lack of notice which has a real effect on the People's ability to present its case should negate the public interest in having a verdict based on consideration of all appropriate alternatives; otherwise there should be no impediment to instruction on a lesser-related offense which is fully supported by evidence in the record. Prejudice. Appellant was prejudiced by the lack of a jury instruction on accessory as a lesser 0ffens.e. The jury was given an all-or-nothing choice, a situation to be avoided if courts are not to become, in the phrase of the Birks opinion, "gambling halls." The defense proceeded on the theory that Jesse Range1 was at the crime scene, and was one of the shooters. Since Jesse Range1 was with appellant and his son for several days after the murders. he had plenty of plausible occasions to fabricate f'alse confessions and admissions by appellant and his sons. Since he participated in the shootings. he could easily provide convincing details which were borne out by later investigation. By providing a convincing story to law enforcement, he was able to avoid prosecution. Once Richard Diaz was arrested. he \\as given the complete criminal discovery docuinentation including the account rendered by Jesse Rangel. l-Ie then only needed to conform his account to Jesse Rangel's. Once Diaz offered this statement and followed it up with his testimony. his charges were reduced and he was effectively allowed to walk away from his involvement in these murders. IIis motives and credibility were thus also questionable. and it is entirely reasonable to suppose that he created or inflated appel- lant's role in the shootings precisely in order to gain an advantage fbr himself: Cindy Durbin eventually learned that the tide had shifted away from her original identification of Jesse Rangel as one of the shooters. By the time of the preliminary hear- ing many months later she must have understood that her testimony was worthless, and there was a chance that no one would be punished for her husband's murder. When she saw appellant and his son in custody at the preliminary hearing, her identification shifted conveniently to them. These circumstances may have led the jury to harbor a reasonable doubt of appel- lant's direct involvement in the murders. The jury surely believed that he was at least an accessory through his cover-up efforts. But they were given no alternate ground for con- viction on accessory as a lesser-related offense. In these circumstances, with such ex- tremely serious charges under deliberation, and evidence of close involvement by appel- lant. it was unreasonable to expect the jury to return an outright acquittal. The murder verdict was forced by the erroneous lack of a lesser-related alternative verdict. This error must be assessed under the standard for review of federal constitutional error, applied when a lesser included offense is omitted in a death penalty trial. (Beck v. Alabamu (1980) 447 U.S. 625. and see discussion at p. 141 above.) For violation of the separation of powers doctrine as federal constitutional error, see Coolidge v. New Hamp- s l l i~e ( 197 1 ) 403 IJ.S. 443. There is a reasonable probability that the jury would have accepted accessory as a lesser-related offense. For these reasons appellant was pre-judiced, and the conviction must be reversed. XII. THE PROSECUTOR COMMITTED MISCONDUCT BY ARGUING TO THE JURY THAT MURDER, INCLUDING IMPLIED MALICE SECOND DEGREE MURDER, MUST BE ACCOMPANIED BY AN INTENT TO KILL. Appellant was pre-judiced by the prosecutor's guilt phase argument, that implied malice second degree murder requires an "implied intent to kill.'' Implied malice murder does not require an intent to kill. To the extent that the prosecutor's argument was accepted by the jury as a clarifi- cation of standard jury instructions, it raised the bar for conviction of implied malice second degree murder, a lesser included offense to Count One (murder of Chuck Durbin). By virtually eliminating a lesser alternative offense, it made conviction of premeditated first degree murder more likely, and overwhelmed any reasonable doubt on the elements of intent and premeditation. A verdict of implied malice second degree murder would have been supported on this record, because appellant's drunkenness and lack of motive raised a reasonable doubt on the elements of premeditation and intent to kill (see Argument IV above). Yet, a ver- dict of manslaughter was unlikely, given the egregious circumstances of the shootings. A lesser alternative verdict, which included a murder conviction on Count One, was essen- tial to any hope of leniency at the penalty phase. A verdict of implied malice second degree murder would have benefited appellant in these circurnstances. Although a death verdict would still have been statutorily autho- rized, it would have been far less likely. The Chuck Durbin murder count was surely the most serious consideration in support of the death penalty. since he was an innocent bys- tander. A conviction of implied malice second dcgree murder would not have been as aggravated as a conviction of premeditated first degree murder. and it would have greatly decreased the case in aggravation Rule. Prosecutorial misconduct requires reversal under the federal constitution when it "so infect[s] the trial with unfairness" that the conviction is a denial of due process. (Darden v. Wainwright ( 1986) 477 U.S. 168, 1 8 1 .) Under state law, use of de- ceptive methods can amount to inisconduct calling for relief: even when the misconduct does not result in an unfair trial. (People v. Cook (2006) 39 Cal.4th 566, 606.) In determining whether there has been prosecutorial misconduct in argument to the jury. this Court will inquire "whether there is a reasonable likelihood" that the jury misconstrued or misapplied the prosecutor's words in violation of state or federal law. (People v. Clair (1992) 2 Cal.4th 629, 663 [adopting the test applied to error in trial court jury instructions by United States Supreme Court in Estelle v. McGuire (1991) 502 U.S. 621.) In making that determination, it will be presumed that the jury understood the pros- ecutor's argument as "words spoken by an advocate in an attempt to persuade." (Ibid. fn. 8.) Prosecutorial misconduct in closing argument can take several forms. It some- times involves a misstatement of the applicable law, as here. "'[I]t is improper for the prosecutor to misstate the law generally (People v. Bell ( 1989) 49 Cal. 3d 502, 538), and particularly to attempt to absolve the prosecution from its prima facie obligation to over- come reasonable doubt on all elements. (People v. Gonzalez (1990) 5 1 Cal. 3d 1 179, 12 15.)' (People v. Marshall (1996) 13 Cal. 4th 799. 83 1 .)" People v. Hill (1 998) 17 Cal. 4th 800, 829-830; see People v. Morgan (2007) 42 Cal.4th 593. 6 12 [kidnapping convic- tion argued on improper legal ground].) Thc trial court had a duty to instruct on lesser included offenses including implied malice second degree murder (People v. Breverman (1 998) 19 Cal.4th 142. 162). and it did so. However, a misleading argument in-jecting an additional element in the lesser of- fense was likely to affect the jury deliberations and shift the burden of proof. (Compare cases in which the trial court delivers conflicting instructions on the elements of crime, People v. Lee (1987) 43 Cal.3d 666. 674. and People v. Maurer (1995) 32 Cal.App.4th No objection was entered to the prosecutor's argument misstating the elements of second degree murder. The requirement of objection was excused in these circumstances because defense counsel did not argue the existence of implied malice, and thus was not in a position to object. Generally, a defendant cannot complain on appeal of the prosecu- tor's misconduct at trial unless he timely objected and requested that the jury be admonished to disregard the impropriety. (People v. Fierro (1991) 1 Cal.4th 173, 207.) Any misconduct is waived unless an admonition would not have cured the harm. (People v. Miller (1990) 50 Cal.3d 954, 996; People v. Edelbacher (1989) 47 Cal.3d 983, 1030.) To determine whether an admonishment would have been effective, we consider the statements in context. (People v. Edelbacher, supra. at p. 1030.) If the defendant ob- jected or if an objection would not have cured the harm. we look to see whether the improper conduct was prejudicial, i.e., whether it is reasonably probable that a jury would have reached a more favorable result absent the objectionable comments. (People v. Haskett (1 982) 30 Cal.3d 84 1, 866.) (People v. Herring ( 1993) 20 Cal.App.4th 1066. 1074.) An ob-jection would not have cured the prosecutor's misstatement of the law in the present case; stated in a different way. defense counsel could not ob-ject because defense counsel could not concede. or appear to concede. identity. (See defense counsel's guilt phase argument. stressing his reluctance to even discuss lesser offenses, at 9 RT 2200- 2201 .) The defense argued that appellant was misidentified as a perpetrator, particularly through the testimonies of Richard Diaz, Jesse Kangel. and Cindy Durbin. An objection to the definition of second degree murder. taken during the prosecutor's argument, would have given the appearance of conceding identity Appellant's challenge to misstatements in the prosecutor's argument should there- fore be addressed on appeal. Background. In his guilt phase argument to the jury, District Attorney Ernest Li- Calsi began by thanking the jurors for their service. He then likened the prosecution case to a jigsaw puzzle, in which it was his duty to show how the pieces fit together. (9 RT 2122.) He started with the law reflected by the allegations of the charging document. And at first like to go over the information and exactly what the de- fendant is charged with. In Count 1, he is charged with the first degree murder of Chuck Durbin. In Count 2, he is charged with the first degree murder of Juan Uribe. In count - there's a special allegation following these counts in that this is a inultiple inurder. There's Count 3 which is the attempted murder of Cindy Durbin. And finally there's a special allegation which refers to all of these counts that he personally used a firearm in the cominission of these charges. At first I would like to go over the elements of first degree murder. And you will be instructed on this. Judge is going to give you detailed in- structions. IFlirst degree inurder is the unlawful killing of a human being with expressed malice aforethought. What is malice aforethought? Malice aforethought - is an intent to kill. And the law determines that there are two types of malice aforethought. express and implied. And in first degree murder, there has to be an express intent to kill. And does that mean the individual has to say I am going to kill him? No. It has to be manifested through their actions or through their words that at the time the act was committed there was an intent to kill. The law is not going to imply any- thing from the actions. It has to bc shown by what the defendant did and what the defendant said. And then the iinal is the willful. deliberate. and premeditated that's required in first degree murder. And with respect to willful, deliberate, and premeditated does that mean there has to be a certain amount of plan[n]ing ahead of time? They get together and they draw diagrams and everything? No. It does not mean that at all. It means that the intent to kill, that the killing was accompanied by clear and deliberate intent to kill. That this in- tent to kill was formed upon pre-existing reflection and that the slayer must have weighed and considered the question of killing, the reasons for and against killing, and having in mind the consequences of killing, he chooses to kill and he does kill. And does this mean that there's a duration of time that's required? No. There's no - the law does not require any specific duration of time for willful, deliberate, and premeditated murder. The true test is not the dura- tion of the time, but the extent of the reflection. A cold and calculated judgment can be arrived at in a short amount of time. (9 RT 2 123-2 124; emphasis added.) The argument then purported to explain the element of premeditation and delibera- tion, but conflated that element with simple intent (see Argument XI11 below). The pros- ecutor continued with argument intended to demonstrate the existence of premeditation. (9 RT 2125-2 129.) He then turned to second degree murder. He suggested that the evi- dence supported an alternative verdict of second degree murder on Counts l and 2, based on a finding of "implied intent to kill." Now, you are going to be instructed on a lesser-included with re- spect to first degree murder and that [is] second degree murder. And second degree murder is an unlawful killing of a human being with malice aforethought. No premeditation or deliberation is required. But malice aforethought means two dif'f'ercnt things when i t comes to second degree murder. I t can either be express malice aforethought or the intent to kill that I rcferred to earlier or it can be implied. The law will in certain cases iinplv an intent to kill. And the judge will instruct you that it's going to be implied when the killing resulted from an intentional act. the natural consequences of that act were dangerous to human life. And the act was deliberately performed with knowledge of the danger. and with the conscious disregard for human life. So even if you were not to find an intent to kill. an express intent to kill, the actions of the defendant and his son in that house definitely were intentional. They knew the consequences of a danger, that danger to human life. 'I'he had knowledge of the danger and the conscious disregard for hu- man life at the time they committed those acts. The law is going to imply an intent to kill in that case, second degree murder. You iust have to have an unlawful killing and either express or implied intent to kill. And you don't need premeditation and deliberation. It's our position that they have been proved in both murders, the murder of Juan Uribe and Chuck Durbin. But you would only find at- tempted murder if you find the defendant not guilty. I mean, you would on- ly find second degree murder if you find the defendant not guilty of first degree murder. (9 RT 2 130-2 13 1 ; emphasis added.) The prosecutor then argued at length that the evidence established the identity of appellant and his son as the killers. (9 R'T 2 13 1-2 157.) In conclusion, the prosecutor ar- gued that the "one true issue" in the case was not identity, nor whether the murders were first or second degree (he claimed that they were tirst degree), but whether there was an intent to kill necessary to support the charge of attempted murder of Cindy Durbin, Count 103 The jury acquitted appellant ofattc~nptcd murder in Count 3. ( 1 1 CT 2385.) 203 Defense counsel Salvatorc Sciandra argued at length that the evidence of identity was not sufficient to support a guilt) verdict. (9 R-I' 2 158-2200.) 'l'oward the end of his argument, Mr. Sciandra pointed to the lesser-included offenses of second degree murder, and attempted second degree murder. He acknowledged that even to mention the lesser- included offenses put him in a "terribly awkward situation," presumably because he did not concede identity. He pointed to the jury instruction on voluntary intoxication, and urged the jury to consider it "as to whether there was premeditation and deliberation." (9 RT 2200-2201 .) The defense made no other reference to the elements of second degree murder. The closing argument for the prosecution, delivered by Deputy District Attorney Robert McGurty, was devoted entirely to the issue of identity. No further reference was made to the elements of second degree murder. (9 RT 2207-2235.) The jury was given standard instructions on the effect of voluntary intoxication on the element of premeditation (CALJIC 4.21; 12 CT 2657; 9 RT 2262), and on implied malice second degree murder (CALJIC 8.3 1 ; 12 CT 2665: 9 RT 2263). Analysis. As noted above, the prosecutor argued to the jury that "[mlalice afore- thought is an intent to kill." (9 RT 2 123.) By this argument, the prosecutor excluded non- intentional implied malice second degree murder. He effectively closed the door on any consideration of second degree implied malice murder as an optional verdict on this record. 'I'he prosecutor went on in an apparent attempt to explain the concept of second degree implied malice murder ("conscious disregard for huinan life"). but did so in terms of the fictional doctrine of "implied intent": "The law is going to i~np ly an intent to kill in that case, second degree murder." (9 R'I' 2 13 1 .) Again, the effect was to eliminate irn- plied malice second degree murder as a separate. non-intentional, lesser-included offense. by which the jury could have found a reduced level of criminal responsibility. In the trial court's jury instructions. second degree implied malice murder was de- fined to the jury in the language of CALJIC 8.3 1 : Murder of the second degree is also the unlawful killing of a human being when: 1. The killing resulted from an intentional act, 2. The natural consequences of the act are dangerous to hu- man life, and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being. (12 CT 2665; 9 RT 2263: see People v. Watson (1981) 30 Cal.3d 290, 300.) Despite the inclusion of the implied malice definition as an aspect of second de- gree murder in thc jury instructions. the argument of the District Attorney obscured that basis of criminal liability. According to the District Attorney. a second-degree murder conviction requires intent; according to his argument. there is no path to second degree murder based on an unintentional killing. even one committed with conscious disregard fix huinan life. Even if'the jury had a reasonable doubt that appellant's role in the killing of either of the victims was intentional. thcy were given no path around a first degree murder conviction. short of outright acquittal.'04 he prosecutor's argument defeated the judicial policy in favor of having instructions on lesser-included offenses. Implied Malice Murder Does Not Require an Intent to Kill. As held in People v. Watson, supra, implied malice second degree murder may be established by the inten- tional coininission of an act dangerous to huinan life, which is deliberately performed with knowledge of its danger to human life and with conscious disregard to its conse- quences. Implied malice murder does not include the intent to kill, as stated in the in- struction, however it does require the intentional commission of an act dangerous to hu- man life. Such a fine distinction between levels of intent invites misunderstanding. Attacks on the standard instruction for lack of specificity have been rejected. (See People v. Nieto-Benitez (1992) 4 Cal.4th 9 1 .) However the instruction is notoriously sub- ject to misinterpretation. (See, inter alia. Ho v. Carey (9th Cir. 2003) 332 F.3d 587 [fed- eral relief granted due to conflicting jury instructions suggesting incorrectly that implied malice second degree murder is a general intent crime]; see also People v. Knoller (2007) 41 Cal.4th 139, 155- 156, correcting the Court's earlier misstatement of the knowledge of danger element of implied malice murder in People v. Coddington (2000) 23 Cal.4th 529. 592.) Since the standard jury instruction requires the knowing commission of an act dan- 104 No instruction was read on voluntary or involuntary manslaughter. See Argument VlII above. gerous to human life. it is not farf'etched to convince a jury that the intent to kill is a ne- L cessary element of implied malice murder. The Prosecution Argument Created a Reusonable Likelihood that the Jury Mis- construed the Argument in Violation qf Due Process. The prosecutorial misconduct here affected the integrity of the trial court's instructions on a lesser-included offense. Under People v. Sedeno ( 1974) 10 Cal.3d 703. the trial court has a sua sponte duty to instruct on any lesser-included offense supported by evidence or argument. This rule extends to any theory of liability which has "substantial evidentiary support." It is not limited to theo- ries obviously and openly presented by the trial record. (People v. Breverman (1998) 19 Cal.4th 142. 162: see People v. Barton ( 1995) 12 Cal.4th 186.) Overlying the trial court's instructions to the jury, the prosecutor argued that intent is a necessary element of all forms of murder. If that were true, i.e. if intent were a ne- cessary element of all forms of murder. and all forms of second degree murder, then this jury was not free to consider a murder conviction, or any conviction, once they formed a reasonable doubt on the element of intent t o kill. If the jurors, or any of them, had a rea- sonable doubt whether the defendant intended to kill, their only option was to acquit, a path which the jurors were surely loathe to take on this state of the record."'hince there was substantial evidentiary support for a verdict of implied malice second degree murder. the jury should have had a free path to a verdict on that lesser offense, unimpeded by any misstatement or misunderstanding of the law. I o 5 No instruction was read on voluntary or involuntary manslaughter. See Argument VIII above. Raising the Bar on Implied Malice Second Degree Murder Had a Prejudicial Efi fect on penal^ Phase Deliberations. A conviction of second degree murder on Count One would not have prevented this case fiorn going into a penalty phase. A conviction on one count of second degree murder and one count of first degree murder would have still have left appellant statutorily eligible for the death penalty. (See Penal Code 5 190.2 (a)(3).) Nevertheless, such a conviction is obviously far less egregious than conviction of two counts of first degree murder. There are two purposes of the rule requiring instruction on lesser-included of- fenses. One is prophylactic, specifically, to avoid the harm of "over-conviction" and "over-acquittal." (See, e.g., People v. Barton (1 995) 12 Cal. 4th 186, 195.) That is to say, it aims to prevent the jury from finding the defendant guilty of a greater offense, even though he is guilty only of a lesser one, out of a desire to keep him from going unpu- nished. (Ibid.) At the same time, the rule aims to prevent the jury from finding the defen- dant not guilty of a greater offense and letting him go unpunished, even though he is, in fact, guilty of a lesser one. (See discussion in dissent of Justice Mosk, People v. Brever- man, supra, 19 Cal. 4th at 18 1. See also People v. Wickersham (1 982) 32 Cal.3d 307, 324.) Here. the danger is that the jury may have found appellant guilty of the greater of- fense, first degree murder. out of a desire to keep him from going unpunished, even though he was guilty only of the lesser offense of implied malice second degree murder. The consideration of the lesser-included offense of implied malice second degree murder. technically permissible under thc jury instruction. was precluded by the Ilistrict Attor- ney's argument that all forms of murder require intent. Prejudice. This error should be treated as federal constitutional error, reviewable under the beyond-a-reasonable doubt standard of Chapmun v. California (1968) 386 U.S. 18. The prosecutor's argument went beyond advocacy. and impinged on the trial court's authority to instruct the jury, in violation of constitutional due process. 'l'he barrier which the prosecutor erected to the jury's consideration of the lesser- included offense of implied malice second degree murder amounted to a restriction of the jury's ability to consider the lesser-included offense. In death penalty cases, this amounts to federal constitutional error. In death penalty cases the failure to provide instructions on lesser-included of- fenses creates federal constitutional error. Thus, in Beck v. Alabama (1980) 447 U.S. 625, the court concluded that Alabama could not constitutionally impose a death sentence after applying a state statute, limited to capital cases, that prohibited the jury from consi- dering a lesser noncapital offense necessarily included within the capital charge and sup- ported by the evidence (as occurred here under the prosecutor's argument). On the other hand, the Supreme Court noted the "value to the defendant of this procedural safeguard," as evidenced by "the nearly universal acceptance . . . in both state and federal courts" that a defendant is entitled to instructions on lesser-included offenses warranted by the evi- dence. (Ibid.) Indeed. the court pointed out. Alabama itself granted the right under ap- propriate circumstances in noncapital cases. (Id. at pp. 636-637.) Such protection, the court reasoned. is "especially important" in a capital case. and the risk that a jury will convict of the charged offense as an alternative to colnplete acquittal when it believes the evidence shows only some lesser crime "cannot be tolerated in a case in which the defen- dant's life is at stake." (Id. at p. 637.) "Thus. if the unavailability of a lesser-included of- fense instruction enhances the risk of an unwarranted conviction, [the state] is constitu- tionally prohibited froin withdrawing that option from the jury in a capital case." (Id. at p. 638.) Here, a second degree inurder conviction on one count would not have been a non- capital option, since it would have still qualified appellant for the death penalty. (Penal Code 8 190.2 (a)(3).) But a second degree murder conviction on Count One would have greatly influenced the outcome of the penalty phase. One reason for additional reliability in the context of this case, with specific refer- ence to the element of premeditation, is the relevance of premeditation to the penalty de- termination. The presence of premeditation is part of the circumstances of the crime. It is a very significant aggravating factor. (See People v. Thomson (1990) 50 Cal.3d 134. 181-182.) The absence of premeditation in a felony murder case is a mitigating factor. (See People v. Bonillas (1989) 48 Cal.3d 757. 793; see also Sochor v. Florida (1992) 504 U.S. 527.) 'The absence of premeditation is also part of the circumstances of the offense, a consideration which would inevitably reduce the aggravated nature of the offense. It would suggest a verdict of life rather than the death penalty. To the extent that the erroneous argument of the prosecutor impinged on the trial court's instructions. it should be evaluated under the principles for review of erroneous .jury instructions. (Compare Brow11 v Puvtori (2005) 544 U.S . 133. 146. and People v. Payton (1 992) 3 Cal.4th 1050, 1070 [erroneous argument of prosecutor did not hamper .jury's consideration of mitigating evidence under "factor (k)."].) Since this is a capital case, and since the argument effectively removed a lesser- included offense instruction which was required on this record. the Chapman standard for review of federal constitutional error applies. 'I'his judgment cannot be upheld under any standard of review. because there was substantial evidence of intoxication and surprise, and room for reasonable doubt on the element of premeditation necessary for lirst degree murder. The jury should have been allowed unfettered discretion to consider implied malice second degree murder as an al- ternative verdict. A verdict which lacked a tinding of premeditation would have had a substantial effect on the penalty phase deliberations. Accordingly. the first degree mur- der conviction on Count One must be reversed. and the death penalty judgment must be reversed. XIII. THE PROSECUTOR COMMITTED MISCONDUCT BY ARGUING T O THE JURY THAT PREMEDITATED MURDER IS ESTABLISHED MERELY BY EVIDENCE OF AN INTENT T O KILL. Appellant had been drinking brandy during the time leading up to the expedition which wound up at the Durbin house; he was literally falling down drunk. Moreover. he had no prior knowledge or awareness of Chuck Durbin. The jury must have had a diffi- cult task in evaluating premeditation on this record. 'I'he prosecutor misspoke in guilt phase argument. claiming that premeditation was demonstrated merely by evidence of a "clear and deliberate intent to kill.'' Despite the trial court's instructions to the jury, the jury was misled on this crucial element. Prosecutorial misconduct requires reversal under the federal constitution when it "so infect[s] the trial with unfairness" that the conviction is a denial of due process. (Darden v. Wainwright ( 1986) 477 U.S. 168, 18 1 .) In determining whether there has been prosecutorial misconduct in argument to the jury. this Court will inquire "whether there is a reasonable likelihood" that the jury misconstrued or misapplied the prosecutor's words in violation of state or federal law. (People v. C'lair ( 1992) 2 Cal.4th 629, 663: see Argument XI1 above.) l'rosecutorial inisconduct in closing argument may involve a misstatement of the applicable lacv. as here. (People v. Hill (1998) 17 Cal. 4th 800. 829-830.) More specifi- cally. the prosecutor's misstatement here effectively omitted the premeditation element of. first degree murder. in violation of the federal constitution. (See Neder v. United States (1999) 527 I1.S. 1 and People v. Flood (1998) 18 Cal.4th 470.) Moreover. the misstate- ment. by diminishing the necessary elements of the of'ense. eflectively shifted the burden of proof' away from the prosecution. again in ~riolation of the federal constitution. (See Francis v. Franklin ( 1985) 47 1 1J.S. 307. 3 15 and Scrnu'strorn v. Montana (1 979) 442 U.S. 5 10.) Due process is denied when the elements ol'willfulness and deliberation are col- lapsed into the single element of premeditation. and when the element of premeditation is satistied bv evidence of a sudden intention. as "instantaneous as successive thoughts of the mind." (Polk v. Sandoval (9th Cir. 2007) 503 F.3d 903, 9 1 1 .) No ob-jection was entered to the prosecutor's argument misstating the premedita- tion element of murder. The requirement oS objection was excused in these circums- tances because defense counsel were only contesting identity, and could not be seen as also contesting the mental elements of murder. (People v. Herring (1993) 20 Cal.App.4th 1066. 1074.) Appellant's challenge to misstatements in the prosecutor's arguinent should there- fore be addressed on appeal. In his guilt phase argument the District Attorney tirst misled the jury as to the availability of implied malice second degree murder (see Argument XI1 above). He then moved in~inediatcly to contlate premeditated murder with a simple intentional killing. And then the final [elc~nentj is the willful. deliberate. and preinedi- tated that's required in first degree 111urder. And with respect to willful, de- liberate. and premeditated does that inean there has to be a certain amount of planinling ahead of time'? Thcj get together and they draw diagrams and everything'? No. It does not mean that at all. It means that the intent to kill, that the killing was accornpanicd by clear and deliberate intent to kill. That this intent to kill was f'or~ned upon pre-existing reflection and that the slayer must have weighed and considered the question of killing. the rea- sons for and against killing. and having in mind the consequences of kill- ing. he chooses to kill and he does kill. And does this mean that there's a duration of time that's required? No. There's no - the law does not require any speciiic duration of time for willful. deliberate. and premeditated murder. The true test is not the dura- tion of the time, but the extent of the reflection. A cold and calculated judgment can be arrived at in a short amount of time. (9 RT 2 123-2 124; emphasis added.) The argument of defense counsel and the prosecution's closing argument did noth- ing to clear up the misstatement of the definition of premeditation. 'The prosecutor's argument contradicted the court's later instruction, that premedi- tation means not only "a clear, deliberate intent . . . to kill." but also that the intent was '*the result of deliberation and premeditation. so that it must have been formed upon pre- existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation." (12 CT 2662: CALJIC 8.20.) The District Attorney's statement also conflated premeditated first degree murder with express malice second degree mur- der, which requires an intentional and unlawful killing. but does not require premedita- tion. (CALJIC 8.30: see 12 CT 2664.) This Court has established a framework for reviewing evidence of premeditation and deliberation. particularly to determine whether there is evidence of pre-existing ref- lection. (People v. Anderson ( 1968) 70 Cal.2d 15. 26; see Argument IV above.) The re- levant criteria are ( I ) evidence of prior planning activity: (2 ) evidence of motive to kill: and (3) evidence of' a "particular and exact means and manner o f killing." (Ibid.) 'I'he Anderson criteria are descriptive. not normative. and only provide a framework for re- view. (People v. Perez (1992) 2 Cal.4th 1 1 17. 1125.) Nevertheless, they are presump- tively the criteria used by a reasonable jury to assess evidence of premeditation. Although counsels' arguments were devoted pri~narily to identity, the jury had to determine the issue of premeditation as a necessary element to the offense. There was considerable rooin for debate on the issue of premeditation. For instance, as to the killing of Chuck Durbin, there was no evidence that he was known to the perpetrators in ad- vance, and harm to him played no role in whatever plans they may have had. There was no motive to kill Durbin. The manner of killing was not particular and exact. Moreover, as to all counts. the jury had to take into account appellant's extreme level of intoxication at the time of the offense. (See CALJIC 4.21 at 12 CI' 2657: voluntary intoxication rele- vant to specific intent.) Premeditation, or lack of premeditation, was central to the first degree murder verdicts. This . jurv - could well have had a reasonable doubt as to the existence of premedita- tion and yet. tracking the advice of the District Attorney, convicted appellant of first de- gree murder. This result is unacceptable. for it denies appellant the right to due process and fair trial. 'This Arguinent should be treated as federal constitutional error. reviewable under the beyond-a-reasonable doubt standard of Chapmap1 v. California (1968) 386 U.S. 18. 'fhe prosecutor's argument went bc),ond advocacy. and impinged on the trial court's au- thority to instruct the jury. ?'he prosecutor's eli~nination of the element of premeditation. substituting "a clear and deliberate intent to kill..' altered the trial court's instructions and created federal constitutional error. Under the standard of review for constitutional error. the alteration of an essential element of the offense was reversible error. A jury which was not misled on this essen- tial element would not have delivered a first degree murder verdict on Count One. Even if it had delivered a second degree murder verdict on that count. the jury would not have been likely to reach a death penalty verdict on the reduced charge (see discussion of re- versible error in Argument XI1 above). XIV. THE PROSECUTOR COMMITTED MISCONDUCT BY ARGUING T O THE JURY THAT THE TESTIMONY OF RICHARD DIAZ, AN ACCOMPLICE, COULD BE CORROBORATED BY THE TESTIMONY OF JESSE RANGEL, ANOTHER ACCOMPLICE. Richard Diaz. at a minimum. was responsiblc !'or firing his weapon into the Dur- bin house. He was properly identified to the jury as an accoinplicc subject to corrobora- tion. The prosecutor offered the testimony of' Jesse Rangel. and argued that it was a means ol'corroborating Diaz. This was improper argument because there was substantial evidence that Jesse Rangel was also an accomplice. and his testimony should not have been used to corroborate Diaz. Prosecutorial tnisconduct requires reversal under thc federal constitution when it "so infectls] the trial with unfairness" that the conviction is a denial of due process. (Darden v. Wainwright ( 1986) 477 U.S. 168, 18 1 .) In detern~ining whether there has been prosecutorial tnisconduct in argument to the jury. this Court will inquire "whether there is a reasonable likelihood" that the jury ~nisconstrued or misapplied the prosecutor's words in violation of state or federal law. (People v. C'lair ( 1992) 2 Cal.4th 629, 663; see Arguments XI1 and XI11 above.) l'rosecutorial ~nisconduct in closing argument may involve a misstatement of the applicable law. as here. (People v. Hill ( 1998) 17 Cal. 4th 800, 829-830.) More specifi- cally. thc accomplice corroboration rule (Penal Code 8 1 1 1 1 ) should not be subverted by the use of one acco~nplice to corroborate another. In his guilt phase argument thc Ilistrict Attorney concentrated on the credibility of Richard Diaz. Ile pointed to details of Iliaz' testimony which were consistent with other evidence. In particular. the prosecutor pointed to corroboration of Diaz through the tes- timony of' Jesse Kangel. Richard Diaz was corroborated by Jesse Rangel's testirnony. Ri- chard Diaz testified that little Pete had the .22 rifle. That big Pete had the .380. Jesse Range1 at a later time testified that that's exactly what he was told. Richard Diaz testified that Rafael was the driver. At a later time Jesse Range1 testified that's exactly what he was told by the defendant and the defendant's son. Richard testified he had the .38 and stayed outside and fired two shots. Jesse Rangel testified that's what he was told. That Ri- chard didn't go into the house. (9 RT 2 15 1 ; emphasis added.) Shortly after the conclusion of arguments, the trial court gave instructions which covered the subject of accomplice corroboration. The court's instructions included CALJIC 3.10 defining accomplice: An accomplice is a person who was subject to prosecution for the identical offense charged in Counts 1 through 5 against the defendant on trial by reason of aiding and abetting. (12 CT 2515.) CALJIC 3.1 1, requiring corroboration of the testimony of an accomplice, was also read: You cannot find a defendant guilty based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect such [sic in printed copy] the defendant with the commis- sion oi'the offense. Testimony of an acco~nplice includes any out-of-court statement purportedly made by an accolnplice received for the purpose of proving that what the accomplice stated out-of-court was true. The trial court also read CALJIC 3.12 on the sufficiency of evidence to corroborate an accomplice: To corroborate the testimony of' an accoinplicc there must be evi- dence of some act or fact related to the crime which. if believed. by itself and without any aid. interpretation or direction from the testimony of the accomplice. tends to connect the defendant with thc coin~nission of the crime charged. However. it is not necessary that the evidence of corroboration be sufficient in itsell'to establish every element of the crime charged, or that it corroborate every fact to which the accomplice testifies. In determining whether an accomplice has been corroborated, you must first assume the testimony of the accomplice has been removed from the case. You must thcn determine whether there is any remaining evi- dence which tends to connect thc defendant with the commission of the crime. If there is no independent evidence which tends to connect defendant with the commission of the crime. the testimony of the accomplice is not corroborated. If there is independent evidence which you believe, then the testi- mony of the accomplice is corroborated. (12 CT 25 17.) The trial court also read CALJIC 3.1 3. stating that one accomplice may not corroborate another: The required corroboration of the testimony of an accomplice may not be supplied by the testimony of any or all o f his accomplices. but must come from other evidence. and CA12J1C 3.14. on the criminal intent necessary to make one an accomplice: Merely assenting to or aiding or assisting in the co~ninission of a crime without knowledge of' the unlawful purpose of the perpetrator and without the intent or purpose of committing, encouraging or facilitating the co~nmission of the crime is not cri~ninal. Thus a person who assents to, or aids. or assists in, the cotninission of a crirnc without that knowledge and without that intent or purpose is not an accolnplice in the coinmission of the crime. as well as CALJIC 3.16 on accomplice as a matter of law: If the crimes alleged in Counts 1 through 5 of he Information were committed by anyone, the witness RICHARD DIAZ was an accomplice as a matter of law and his testimony is subject to the rule requiring corrobora- tion. Finally. the trial court read CALJIC 3.18. instructing that the testimony of an ac- complice is to be viewed with distrust"'": You should view the testimony of an accomplice with distrust. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after ex- amining it with care and caution and in the light of all the evidence in this case. The jury was not given CAI,JIC 3.19. concerning persons such as Jesse Range1 who could have been determined to be acco~n~lices" '~: I O h This instruction was later amended to provide that the accomplice's testimony be viewed "with caution." (See People v. Guiuan (1998) 18 Cal.4th 558, 569.) 107 The District Attorney proposed an instruction on the defendant's burden to prove that a corroborating witness is an accoinplice (CALJIC 3.19). directed at the testimony of Jesse Rangel. Defense counsel opposed the instruction because it put the burden of proof on the defense to prove that Jesse Range1 was an accomplice. (8 RT 2017: 9 RT 2 1 18: see You must determine whether the witness was an accom- plice as I have defined that term. 'I'he defendant has the burden ol' proving by a preponderance of the evidence that was an accolnplice in the crilneCs] charged against the defendant. 'I'he prosecutor's argument contradicted the rule that one accomplice may not cor- roborate another. Prosecutorial misconduct in closing argument may involve a misstate- ment of the applicable law, as here. "'[lit is improper for the prosecutor to misstate the law generally (People v. Bell (1989) 49 Cal. 3d 502. 538), and particularly to attempt to absolve the prosecution from its prima fjcie obligation to overcome reasonable doubt on all elements. (Puople v. Conzalez ( 1990) 5 1 Cai. 3d 1 179, 12 15 .)' (People v. Marshall ( 1996) 13 Cal. 4th 799. 83 1 .)" People v. Hill ( 1998) 17 Cal. 4th 800, 829-830; see People v. Morgan (2007) 42 Cal.4th 593, 612 [kidnapping conviction argued on improper legal ground].) The error was not corrected by the trial court's instructions. The jury instructions stated the accomplice corroboration rule (CALJIC 3.1 l ) , and stated that one accomplice may not corroborate another (CALJIC 3.13), but did not allow for the possibility that anyone other than Richard Diaz was an acco~nplice (see CA1,JIC 3.19, not read). 'Thc defense position was that both Jesse Rangel and Richard Diaz were principals in the killings. and that their testimonies were tailored to conform to each other. Jesse 9 R?' 2176-2177 [defense counsel argued that Jesse Rangel provided a false alibi].) On the defendant's burden to prove a witness' accomplice status. see People v. Belton (1979) 23 Cal.3d 5 16. 523. Rangel's testimony providcd a flexible plat1i)rin. because he claimed an alibi, and claimed that his information came froin Little Pete: thus he could claim to know inany details of'the offense while insisting that he was not present at the time of the killings. The prosecution case faced a formidable obstacle. in the early identification state- ments of Cindy Durbin. She identified Jesse Range1 as one of the assailants within a day or two of the shootings. (Ex. 52; 6 RT 1395- 1397, 14 13- 14 19.) She continued to identify Jesse Range1 in police interviews in the following weeks and months. through the time of the preliminary hearing. (Ex. 57; 6 RT 1397, 1437.) Meanwhile, Jesse Range1 fled Cali- fornia and went into hiding in New Mexico. (6 R?' 15 19.) Jesse Rangel's status as a possible accomplice should have nullified any use of his testimony to corroborate the testimony of Richard Diaz. Defense counsel objected to the reading of CALJIC 3.19 to identify Jesse Rangel as a potential accomplice (8 RT 20 17), but only because the standard instruction would have required the defense to shoulder the burden of proof on Jesse Rangel's accomplice status. (See People v. Belton (1979) 23 Cal.3d 5 16, 523.) In these circuinstances it was prejudicial error for the prosecutor to argue that the testimony of Jesse Rangel, quoting Little Pete, could be used to corroborate the testimony of Richard Diaz. Both accounts were in dire need of corroboration. but they could not be used to corroborate each other. The pre-judice was particularly extreme because appellant's son Little Pete was himself an accomplice as a matter of law (see Argument IX above). To whatever extent Jesse Rangel \\as bcing truthful. hc was increlq quoting Little Pete, who had a motive to diminish his own role in the killings and exaggerate the role of appellant. The Jesse RangelILittle Pete accounts all came to Richard Diaz in written discov- ery bcfore he decided to cooperate with the prosecution. ( 5 RT 1326. 1328. 136 1 .) He was therefore in a position to tailor his account to the version provided by Jesse Rangel. The accounts provided by Jesse Range1 and Richard Diaz were not independent of each other, and thus should have had no value as corroboration. The account of one accom- plice (Jesse Rangel) quoting another accomplice (Little Pete) should not have been used to corroborate the account of yet another accolnplice (Richard Diaz), especially since the last accomplice in the chain had studied the other statements. (See discussion in People v. Najera (2008) - C a l . 4 t h , 2008 Cal.LEXIS 6736 [*63.) There was good reason to conclude that Richard Diaz and Jesse Rangel were the actual perpetrators of these offenses. It was prejudicial error to argue that they should corroborate each other. XV. THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE THAT JUAN URIBE WAS A DRUG DEALER, AND THAT THERE WAS DRUG USE AND DRUG DEALING AT THE DURBIN HOUSE AT THE TIME OF THE SHOOTINGS, TO IMPEACH PROSECUTION WITNESSES AND TO REBUT VICTIM IMPACT TESTIMONY IN SUPPORT OF THE DEATH PENALTY. The prosecution presented a case in aggravation of the death penalty which relied largely on victim impact evidence. Yet, the trial court excluded defense evidence which would have shown that Juan Uribe was a drug dealer; that Chuck Durbin was a regular customer of Uribe: that drug paraphernalia were on the kitchen table at the time of the shootings; and that Chuck Durbin had a high level of methamphetamine in his system at the time of his death. The exclusion of this evidence created a one-sided impression of the victims and the effect that their deaths had on their surviving family members. More- over, it deprived the defense of an opportunity to argue that dangerous drug users were in the Durbin house. helping to explain if not excuse the use of deadly force. The exclusion of evidence denied appellant the opportunity to defend against the death penalty, in viola- tion of the Fifth. Sixth, Eighth, and Fourteenth Amendments to the United States Consti- tution. Rule. The federal constitutional rights to due process. compulsory process and conf'rontation (Fifth. Sixth. and Fourteenth Amendments) mandate that the defendant be allowed to present evidence and valid defense theories in response to a criminal prosecu- tion. (See Waslzington 1). Texas ( 1967) 388 U.S. 14, 22: C'humbers v. Mississippi (1973) By the same token. the dcfcndant must be permitted to of'f'er rebuttal evidence. to question the strength of prosecution evidence in aggravation and the veracity of its wit- nesses. Where the aggravation case includes victim impact evidence, the defendant must be allowed to call into question the effect on the survivors' quality of life caused by the loss of their family member. If the effect of a homicide is portrayed as devastating to the survivors, then it is only appropriate in an adversarial system to permit the defense to of- fer evidence to paint a truer picture of the shared family life that was altered by the homi- cide. Where victim impact evidence is the determining factor in imposing the death pe- nalty - as it was here - it is a denial of due process to exclude evidence of salient fea- tures, good or bad, of the life that was lost. Factual and Procedural Background. The record contains a copy of an autopsy toxicology report prepared with respect to the victim Brent (Chuck) Durbin, on October 9, 1995. The report indicates a level of .15 mg/L of methamphetamine, and .O1 mg/L of amphetamine. (2 CT 445.)'08 Although not entered in evidence, this report was referred to in the arguments of counsel and thus serves as part of the defense offer of proof. In his opening statement to the jury at the guilt phase, defense counsel Litman as- serted that there was drug dealing at the Durbin house. Sergeant Alley asked Miss Durbin if she knew of any drug involve- ment by her husband or by Juan llribe and she told him. and you will hear 108 This level of methamphetamine is indicated as above the top "effective level" of .10 mg/I,, and below the low "potentially toxic'' level of .2 mg/L. The toxicology report is not attached to any motion, and is not otherwise identified as an exhibit. in evidence that Sergeant Allel put this in quotes in his police department . . report. "No one is allo\jed in mj. house that does drugs. I'he evidence will shou that at least in that regard Miss Durbin was not honest with Sergeant Alley. At a later interview she admitted that her husband \+as purchasing crank or incthampehetamine regularly from Juan LJribe. She also admitted she had seen her husband using drugs at the fami- ly home. And she also in this interview on the 2 1st told Of'ficer Ciapessoni a specific amount. I believe 70 to $80 per week that he was spending on drugs. And in addition. you will hear evidence that when the officers searched the residence over on Central after the shooting had taken place, that they found a narcotics scale on the kitchen table. That they found a mirror with a powdery substance and a cutting instrument under the bed in the inaster bedroom. And they found iteins for use of drugs in the garage. Following the opening statements. the prosecution ob-jected to defense evidence on drug usage as outlined in the opening statement. The District Attorney argued that the drug evidence was "completely irrelevant," and was used to "inflame the jury against the victim in this case." (4 RT 906.) The defense countered that the subject had to do with the credibility of Cindy Durbin; she told officers at the scene that no one who does drugs was allowed into the house. all the while there was a narcotics scale on the kitchen table. At that point the trial court accepted the defense argument on credibility; "I mean appar- ently she made a statement to the police and contradicted it later . . . [I]t goes to credibili- ty." A limiting instruction would be necessar).. (4 RI' 907.) On September 5. 1998. during a break in the presentation of prosecution evidence. the District Attorney announced that "we are still not giving up on this cross-examination of Cindy Durbin as to what she told the police about drugs." ( 5 RT 1191.) The District Attorney argued that the sub-iect was not relevant. The trial court observed that the drug evidence was "collateral impeachment." sub-ject to Evidence Code tj 352. (5 RT 1192.) Cindy Burciaga. a neighbor, testified on September 10, 1998. Defense counsel proposed to question her about the large number of people seen corning and going from the Ilurbin house. This testimony was offered as an indication of probable drug activity at the house. ( 5 R T 1139.) The trial court sustained the prosecutor's objection on grounds of lack of relevance and section 352. (5 RT 1 140.) Alvin Areizaga also testified. Just prior to his testimony the prosecution brought a motion in limine to prohibit reference to drug usage at the Durbin house. (5 RT 1153.) Mr. Sciandra for the defense argued that the evidence of drug usage was relevant to im- peaching Cindy Durbin. The trial court ruled that any reference to drug usage by anyone other than Mr. Areizaga himself would be irrelevant. (5 RT 1 154.) On September 1 1 , 1998, evidence was presented and further argument was heard. The prosecution cited People v. Singer ( 1963) 2 17 Cal.App.2d 743 and People v. Gray- son (1959) 172 Cal.App.2d 372, 376, for the proposition that a witness may not be ex- amined on matters outside the scope of direct examination for the purpose of testing the witness' credibility. (5 RT 12 13.) Cindy Durbin testified outside the presence of the jury. She did not remember making a statement to Sergeant Alley as she was being loaded onto an ambulance gurney. (5 R?' 1223.) She remembered having an interview with the chief of police sometime lat- er. She told him that Chuck engaged in the "recreational use" of methamphetamine. He got it from Juan Uribe. (5 RT 1230.) Sergeant Alley testified that he spoke to Ms. Durbin at the scene. Shc told him that she knew of' no drug involvement by Chuck and Juan Ilribe. and that '-no onc was allo~ved in her house that does drugs." ( 5 RT 1236.) Iluring argument the trial court observed that the Singer. case cited by the prosecu- tion pre-dated the enacted of the California Evidence Code. and was thereby overruled. Moreover. in the trial court's view. Proposition ~ i g h t " " abrogated Evidence Code tj 787.'"' so that ..specific instances of conduct are admissible." ( 5 R T 1240.) Mr. Litrnan argued that impeachment should be allowed because Ms. Durbin's credibility. particular in her identification of appellant as one of the shooters, was critical. (5 R'T 1243.) The prosecutor argued that the drug issue was collateral and would mislead the jury regarding the issues in the case. ( 5 RT 1245.) Turning to a section 352 analysis. the trial court determined that the drug evidence had probative value, but very little probative value. "Drugs are not involved in this case. Motive is revenge. and not drugs." (5 RT 1246.) The trial court considered the offered drug evidence inflammatory. The trial court reversed its prior ruling and excluded evi- I o 9 Cal. Const. Art. I tj 28 (d): ..Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the l,egislature, relevant evidence shall not be excluded in any criminal proceeding, includ- ing pretrial and post conviction motions and hearings, or in any trial or hearing of a juve- nile for a criminal of'fense. whether heard in juvenile or adult court. Nothing in this sec- tion shall affect any existing statutory rule of evidence relating to privilege or hearsay. or Evidence Code. Sections 352, 782 or 1 103. Nothing in this section shall affect any exist- ing statutory or constitutional right of the press." "" ..Subject to Section 788. evidence of specific instances of his conduct relevant on- ly as tending to prove a trait of his character is inadmissible to attack or support the cre- dibility of a witness." ciencc ol' drug usage in the Durbin house during the guilt phase of the trial, citing EJvi- dence Code $352. (5 R?' 1247.) Richard Fitzsiininons testified as a defense witness. On redirect examination Fitz- simmons testified that he used methamphetamine at the Durbin house ten or fifteen mi- nutes before the shootings. ( 8 RT 2035.) However. no evidence was permitted on the de- fense claim from the opening statement that there was open methamphetamine use at the Durbin house, that a drug scale was in the kitchen at the time of the shootings, that Juan Uribe was a supplier, that Chuck Durbin had a methamphetatmine habit, and that Cindy Durbin tried to mislead investigating officers on the subject. The guilty verdicts were returned on October 1, 1998. In the penalty phase of the trial the issue of drug usage at the Durbin house was raised again, in the context of victim impact evidence. On October 5, 1998, at the beginning of penalty phase proceedings, Mr. Litman for the defense raised the question of admissibility of Cindy Durbin's statements about drug usage, which had been admitted then excluded at the guilt phase. Counsel also pointed out that in autopsy results Chuck Durbin was found to have methamphetamine in his system. (See 2 CT 445.) The prosecutor replied that victim impact testimony, which was to be offered in this case, does not include evidence of the character of the victim. ( 10 RT 232 1 .) Mr. Sciandra for the def'ense replied that the evidence was not offered to establish the character of the victim. but to show that "it was not paradise in the house.'' Chuck Durbin was using 60 to $80 per week to support his drug habit. This evidence was relevant to show how much his family reall) misses him. (10 RT 2322.) 'L'he matter was continued to the following day. Returning to the issue, the trial court announced that i t had not been able to lind an] cases for guidance on the admissi- bility of evidence of drugs in Durbin's system. Mr. Sciandra argued that the evidence was relevant to balance the picture of Ilurbin as a loving father and heroic victim. (10 RT 2337) The District Attorney replied that the drug evidence was not relevant to any issue concerning Chuck Durbin as a loving father. The prosecution did not intend to introduce evidence of specitic acts of kindness by Durbin. 'l'he trial court took the view that Chuck Durbin's character could not be impeached. "Well. he is a blameless loving father. He wasn't the target of the offense. I-lc mas a victim of circumstances." The court deter- mined to continue to exclude the drug evidence. The defense protested that the exclusion of evidence was a violation of the Eighth and Fourteenth Amendments. (10 RT 2338.) That afternoon Chuck Durbin's brother Randy testified as a victim impact witness. He testified that he depended on his brother. and that Chuck had been a father figure for him. (10 RT 2393.) The defense then argued that by painting a portrait of Chuck as a role model. the door had been opened to evidence of drugs in the residence; to exclude that evidence would be to perpetrate a "fraud on the jury ." ( 10 RT 2399.) The prosecutor reiterated that the murder had nothing to do with drugs. "None. Zip." The trial court agreed that there was no evidence that drugs had anything to do with the case. and reiterated its earlier decision to exclude the evidence. (10 RT 2400.) Shortly thereafter, Mr. Sciandra ~noved to cross-examine Martha Melgoza on the drug issue. ( 10 RT 2410.) Juan Ilribe's mother had testified that Juan always made sure that the bills were paid. (10 RT 241 1 . ) The defense wanted to explore the source of Uribe's income. The trial court continued to exclude the evidence, ruling that "this is not a drug case." ( 10 RT 24 12.) Cindy Durbin testified a second time to the circumstances of the shooting. She added that her son Brett was slightly autistic. a condition which was inferred to be asso- ciated with his father's death (see Argument XVI below). (10 RT 243 1 .) Her daughter Natasha had died of' influenza "last ~ugus t . "" ' She attributed her inability to deal with Natasha's death to "the fact that Chuck was not there to help [her] and console [her] in that situation.. . ." ( 10 RT 2433.) Analysis. The trial court erred by excluding evidence of drug usage and drug deal- ing at the Durbin house. In seeking the death penalty the prosecution relied very substan- tially on victim impact testimony. By this evidence the prosecution sought to demon- strate that the victims were a source of positive influence: the survivors were devastated by the deaths of the victims because the victims were stable and healthy influences on their respective families. The defense should have been permitted to present a more nuanced picture of the relationship of the victims to their families. The admissibility of victim impact testimony in capital trials is a proposition which appellant does not challenge in this appeal. The use of victim impact in general might be debated. and one of the grounds of the debate would be whether it is proper to I I I Ms. Durbin testified on October 7 . 1998. The killings occurred on October 7. 1995. assess the dcath penalty on the basis of' the personal characteristics of the victiin - either his character in isolation, or the effect of his death on his surviving family members. This debatc has been settled -- victim impact evidence is relevant and admissible. But it carries with it the corollary that a true and accurate picture may not be wholly to the ben- efit of thc victim's memory. It may not disclose a wholly unblemished life story. nor may it show a seainless relationship with his survivors. I I 2 In the recent past. victim impact evidence was deemed inadmissible. (See Booth v. Maryland (1987) 482 U.S. 496 and South Carolina v. Gathers (1989) 490 U.S. 805.) In Payne v. Tennessee (1991) 501 U.S. 808, the then-recent opinions in Booth and Gath- ers were overruled, and victim impact evidence was deemed admissible over any federal constitutional objection. We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific hann caused by the defendant. "The State has a legitimate interest in counteracting the mitigating evidence which the defendant is en- titled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family." Booth. 482 U.S. at 5 17 (WHITE, J., dissenting) (citation omitted). By turn- ing the victiin into a "faceless stranger at the penalty phase of a capital tri- al,'' Gathers, 490 U.S. at 821 (O'CONNOR, J., dissenting), Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder. (Id., 50 1 U.S. at 825: emphasis added.) I I ? Indeed. to press the analog).. such negative information is common fodder for the prosecution rebuttal to a defense case in mitigation of the death penalty. There are two aspects of the Pyvrle opinion which are particularly relevant to the present issue. First, there is a distinction between evidence of the character of the victim on the one hand, and the effect his or her death may have had on the surviving family members on the other. Second. the admissibility of positive or laudatory victim impact evidence carries with it the potential for its opposite or converse: rebuttal evidence of poor conduct, or rebuttal evidence of slight or reduced impact of the victim's death on the surviving family members. Both of these potential issues were recognized at the time the door was opened to victim impact evidence. Although much of the discussion in the Payne opinion lumped the victim's character together with the impact of his or her death on the surviving family members, there was some acknowledgement that there might be different rules of admis- sibility for these two categories of victim impact evidence. Payne echoes the concern voiced in Booth's case that the admission of victim impact evidence permits a jury to find that defendants whose vic- tims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. Booth, supra, at 506, n. 8. As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind -- for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each vic- tim's "uniqueness as an individual human being," whatever the jury might think the loss to the community resulting from his death might be. The facts of Gathers are an excellent illustration of this: The evidence showed that the victim was an out of work. mentally handicapped individual. per- haps not, in the eyes of most. a significant contributor to society. but none- theless a murdered human being. (501 U.S. 823-824; see also Souter. J., conc., at 835; empha- sis added.) And. the potential for adverse testimony was dimly acknowledged. I'he fact that each of us is unique is a proposition so obvious that i t surely rcquircs no evidcntiary support. What is not obvious, however, is the way in which the character or reputation in one case may differ from that of other possible victims. 1:vidence offered to provc such differences can only bc intended to identify some victims as more worthy of protection than others. . . . (50 1 L1.S. at 866 (Stevens. .I. diss.): emphasis added.) I . Victim Character versus Victim Impact. l'he prosecution argued in the present case that the victim's character was not in issue; it was claimed that only the effect of his death was offered in aggravation. (10 RT 2338.) This narrow distinction has been employed in some capital cases on review in this Court, but on contrasting facts. In People v. Boyette (2002) 29 Cal.4th 3 8 1, the defendant sought to show through cross-examination of relatives that one of the victims had been to prison, and was not the "cherished family member" portrayed in the prosecution's penalty phase evidence. This Court held that the limitation on the defense case was not error. There was no error and. in any event, no prejudice. Testimony from the victims' family members was relevant to show how the killings affected them, not whether they were justitied in their feelings due to the victims' good nature and sterling character. Accordingly. defendant was not entitled to disparage the character of the victims on cross-examination. Even if we assume for argument that the trial court erred, there was no prejudice; the several family members who testiiied did so briefly and relatively dispas- sionately. The jury was aware from the evidence adduced at the guilt - phase that the victims were probably drug addicts and were killed in a dispute at a disreputable house at which drug addicts congregated. In short, the jury al- ready knew the victims were not upstanding citizens, so defendant's inabili- ty to emphasize this point in cross-examination could not have affected the penalty iudnment. In concluding there was no error and no prejudice, we also re-ject the claims that the trial court's evidentiary rulings on this topic deprived defendant of his rights to due process. to a fair trial, to confront and cross-examine the witnesses against him. and to a reliable. individua- lized and nonarbitrary penalty determination. (U.S. Const.. 5th. 6th, 8th & 14th Amends.). . . . (Id. at 445: emphasis added.) The circumstances of' the present case. contrasted with the circumstances of Boyette, demonstrate that the drug evidence was relevant and admissible here. (1) The victim impact evidence here was not brief or dispassionate. (See 10 R1' 2441: jurors were crying during impact testimony of Cindy Durbin.) It was a major feature of the 113 prosecution case in aggravation. The powerful implication was that the Durbin family and the Uribes were both robbed of' a strong moral guiding influence. (2) It was hardly suggested to this jury that the victims were drug abusers. Richard Fitzsimmons testified that he used methamphetamine shortly before the shootings (8 RT 2035), but his drug usage was not associated with Durbin or Uribe. or even with the Durbin house. Evidence of the drug scales, evidence that Chuck Durbin had a near-toxic level of methampheta- mine in his blood at the time of death, evidence that Juan Uribe was Durbin's dealer, tes- timony by Areziaga that there was drug usage in the kitchen shortly before the shootings. all were excluded in an effort to avoid disparaging the victims. (3) This jury had every reason to regard the Durbins and Uribe as "upstanding citizens," people whose deaths ' I 3 In argument to the jury. the prosecutor read from a book written by a surviving homicide victim. "The dead person ceases to be a part of every day reality. Ceases to exist. She is only a figure in a historic event. And we inevitably turn away from the past towards the ongoing reality. And the ongoing reality is the criminal[:] trapped, anxious, now helpless. isolated. often badgered and bewildered. He usurps the compassion that is justly due his victim. He will steal his victim's moral constituency. along with her life ...." (10 RT 2552.) were an extraordinary societal loss. meriting the severest punishment. and no reason in the evidence to think otherwise. Finally. the character of both victims was very much in issue in this trial. l h e snapshot of thc Durbin home fro111 the description of the crime itself illustrated a loving and close-knit family. The children were gathered in the living room, surrounded by their parents and their parents' friends. Chuck's brother Randy testified that Chuck was a pos- itive example to hirn (10 RT 2393); this necessarily implied that Chuck was a person of merit. The testimony of Martha Melgoza and Juan Uribe's inother indicated that he was a reliable provider, close to his daughter. (10 RT 2381, 2408.) This distorted positive evidence of the moral influence of the victims on their families required the opportunity for rebuttal; the exclusion of defense rebuttal evidence was a denial of due process. 2. Rebuttal Evidence as a Due Process Requirement. The appropriate relationship between properly admitted victim impact evidence and negative rebuttal evidence is an inevitable source of disagreement. From the prose- cution perspective the victim's inurder in itself exalts the dead person and makes any crit- icism hard to contemplate. From the defendant's standpoint an arbitrary restriction on rebuttal testimony unfairly paves the road to an unjust death verdict. The issue has split this Court. In People v. Harris (2005) 37 Cal.4th 3 10. the Court reviewed a drug-related inurder of a young woman who was knowingly living with a dangerous drug dealer. The defense sought to introduce evidence of the fiance's cha- racter, and the victim's knowledge of his character. to demonstrate that the victim kno- wingly put herself in harm's \vai\, Defendant argues the court erred in excluding evidence that was re- levant pursuant to section 190.3. factors (a) (circumstances of the offense). and (e) (whether the victim was a participant in or consented to the homi- cidal act), to rebut the prosecution's penalty phase evidence, and in mitiga- tion. "The Eighth and Fourteenth Amendments require the jury in a capi- tal case to hear any relevant mitigating - evidence that the defendant offers, including "'any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sen- tence less than death.'" ([People v.] Fr-ve [(2004)] 18 Cal.4th [894,] 1015.) In turn, the court does have the authority to exclude, as irrelevant, evidence that does not bear on the defendant's character, record, or circumstances of the offense. (Ibid.) '[Tlhe concept of relevance as it pertains to mitigation evidence is no different from the definition of relevance as the term is un- derstood generally.' (Id. at pp. 10 15-1 0 16.) Indeed, 'excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense.' (People v. Fudge[, supra, 7 Cal.4th at p.] 1103.)" (People v. Ramos (2004) 34 Cal.4th 494. 528.) Under this standard, we find no error. Before trial, and again before the penalty phase, defendant moved to admit evidence that Canto's ex-wife had warned Allen that Canto was dan- gerous and that living in the same house with him could get her killed; that Allen had actual knowledge of Canto's drug dealing; and that Allen in the past had used a false driver's license. Defendant proffered the evidence to establish that Allen's choice to live with Canto contributed to her own death. The court refused to adinit the proffered evidence. Defendant argues the evidence was admissible to show Allen was not the innocent victim por- trayed by the prosecution but rather a person who made voluntary choices to live in a dangerous situation and maintain a lifestyle that contributed to her death. We disagree. Contrary to the implications in the concurring and dissenting opinion, the proffered evidence did not show that Allen partici- pated in or was otherwise associated with Canto's or defendant's criminal activities. The fact that Allen had a false driver's license and may have known that she was living in a dangerous situation did not constitute evi- dence that she participated in or consented to the acts leading up to her murder. The trial court did not err in excluding the proffered evidence as irrelevant. (Id. at 352-353: cmphasis added.) The dissent agreed with the defendant's contention. that the victim's knowledge of and acquicscencc in thc drug activities of her fianci was relevant to her status as a blame- less victim. As used in factor (a ) of section 190.3. the phrase "the circumstances of the crime" is broadly defined. It "does not mean merely the immediate temporal and spatial circumstances of the crime. Rather it extends to '[tlhat which surrounds materially, morally. or logically' the crime." (People v. Edwards (1991) 54 Cal.3d 787, 833: see also People v. Smith (2005) 35 Cal.4th 334, 352.) Here, Canto's activities as a drug dealer, and Allen's knowing acquiescence in those activities, were circumstances that sur- rounded both morally and logically the murders of Allen and the fetus she was carrying, in particular because the presence of the drugs and the cash proceeds from drug sales provided the motive for the robbery murders. The evidence was also admissible to rebut the prosecution's victim impact evidence. In Payne v. Tennessee (1991) 501 U.S . 808, the United States Supreme Court held that in capital prosecutions the Eighth Amend- ment's prohibition of cruel and unusual punishment does not bar presenta- tion of evidence "about the victim and about the impact of the murder on the victim's family," and that a state may properly conclude that such evi- dence "is relevant to the jury's decision as to whether or not the death pe- nalty should be imposed." (501 1J.S. at p. 827.) The court explained that "[vlictiin impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question. evidence of a general type long considered by sentencing authori- ties." (Id. at p. 825.) The court acknowledged a concern "that the admis- sion of victim impact evidence permits a jury to find that defendants whose victims were assets to their co~nlnunity are more deserving of punishment than those whose victims are perceived to be less worthy" (id, at p. 823). but the court thought this concern unfounded: ..As a general matter,-howev- er, victim impact evidence is not offered to encourage comparative judg- ments of this kind-for instance. that the killer of a hardworking, devoted parent deserves the death penalty. but that the ~nurderer of a reprobate does not. It is designed to show instead each victim's 'uniqueness as an individ- ual huinan being.' whatever the jur! might think the loss to the community resulting from his death might be." (lhid.) llere. the prosecution's case in aggravation at the penalty phase re- lied heavily on victim iinpact testiinony showing the effect of Allen's death on her inother and grandmother. As part of this testimony, the jury learned that in high school Allen had been a cheerleader who was on the debate teain and loved to dance. Defendant should have been permitted to add to this portrait by presenting evidence that Allen's tiance, Canto, was a drug dealer who kept drugs and drug money at their apartment, and that Allen was aware of and acquiesced in this drug dealing and, by reasonable infe- rence, benefited financially from it. (37 Cal.4th at 374-375 (Kennard. J.. dissenting as to penalty); emphasis added.) The issue in Harris was whether the defense evidence concerning the victim's fiance was relevant to the impact testiinony concerning the victim herself. The majority opinion in Harris did not suggest or infer that the defense is prohibited from offering re- buttal evidence concerning the victim. Rather, the majority concluded that the evidence regarding Canto's lifestyle was remote to the character of Allen, the homicide victim, and therefore excludable. Mere, the evidence of drug dealing and drug usage related directly to the two ho- micide victims, Juan Uribe and Chuck Durbin. Both were fathers. The prosecution was offered a clear and direct path to demonstrate that both were moral beacons. adept at the task of parenting, whose presence would be missed. Uribe was cast as particularly useful in providing income to the family (10 RT 241 1). though the source of his income was ex- cluded. Chuck Durbin was cast as a inoral guidepost for his family members. It was in- ferred, though without supporting expert testimony, that Brett's autism and Natasha's death froin influenza were linked to their Fdther's death. and that both could have been prevented had hc not been killed (see Argument XVI below). The victim impact evi- dence was related directly to the character of the victims. 3. Drz~g Evidet~ce as Relevant to the Cir.cumstunces oj ' t l~c Of fnse . . . Evidence of the circu~nstances of the offense. including evidence creating a linger- ing doubt as to the defendant's guilt of the offense. is admissible at a penalty trial under Penal Code section 190.3. (People v. Gay (2008) 42 Cal.4th 1 195, 1221 .) A self defense response would have been considered as Inore reasonable in view of evidence that the oc- cupants of the Durbin house were engaged in a pattern o f serious drug abuse. In addition to its significance as evidence in rebuttal of the prosecution's victim impact evidence, evidence of drug dealing and drug usage at the Durbin house would have affected the -jury's consideration of self-defense or imperfect self-defense as lingering doubt evidence. (See People v. Minzjie (1996) 13 Cal.4th 1055, 1068 [defense may introduce evidence of past acts of defendant's group to support claiin of self-defense].) Conclusion. The evidence offered by the defense in this case was not drug evi- dence offered merely to make the victims look bad. (See People v. Kellv (1992) l Cal.4th 495, 523. and People v. Hillllouse (2002) 27 Cal.4th 469. 496.) The evidence was of- fered to correct and rebut prosecution evidence on the extent of loss suffered by the sur- vivors as a result 01- these deaths. In another context such as a civil wrongful death ac- tion. the relevance of the evidence. in mitigation of damages, would readily be recog- nized and accepted. I t may legitimately bc asked whethcr any lnurder victim should be exposed to such a searching postmortem. including evidence which could reflect poorly on the decedent's rnoral character. Hut that question has already been asked. and answered, twice. First. the issue was addressed by the United States Supreme Court when it overruled prior au- thority in Payne v. Tennessee, supra. In the 1987 majority opinion in Booth v. Maryland, supra, it was foreseen that to permit victim impact evidence would be to invite rebuttal and a "mini-trial" on the victim's true role in his or her family. and perhaps on the vic- tim's character as well. . . . A threshold problem is that victim impact information is not easi- ly susceptible to rebuttal. Presuinably the defendant would have the right to cross-examine the declarants, but he rarely would be able to show that the family members have exaggerated the degree of sleeplessness, depres- sion, or emotional trauma suffered. Moreover, if the state is permitted to introduce evidence of the victiin's personal qualities, Tfn.1 it cannot be doubted that the defendant also must be given the chance to rebut this evi- dence. See Gardner v. Florida, 430 U.S. 349, 362 (1977) (opinion of STEVENS, J.) (due process requires that defendant be given a chance to rebut presentence report). See also Md. Ann. Code, Art. 27, § 413(c)(v) (1982). Putting aside the strategic risks of attacking the victim's character before the jury, in appropriate cases the defendant presumably would be permitted to put on evidence that the victim was of dubious moral charac- ter, was unpopular, or was ostracized from his family. The prospect of a "mini-trial" on the victim's character is more than simply unappealing; it could well distract the sentencing iury from its constitutionally required task -- determining whether the death penalty is appropriate in light of the background - and record of the accused and the particular circumstances of the crime.. . . (Booth v. Maryland, supra. 482 U.S. at 506-507 (majority opinion): emphasis added.) The Court in Payne v. Tennessee. and this Court in its decisions adopting the Pa-vne rule. were thus well aware of the potential for a mini-trial on the victim's charac- ter. triggered b j a glowing but incomplctc portrait ol'the victim and his role in his familj in the prosecution's case in chief. Second. the prosecutor is never obliged to introduce victim impact evidence. If it chooses to do so. like any litigant it must be prepared thr rebuttal. No person. and no homicide victim. is perfect. Since the prosecution's own investigation promptly unco- vered the drug evidence. the eflbrt at rebuttal could hardly have been unexpected. The victims' families had multiple problems. but those problems may have been pre-existing, and were not necessarily entirely the result of the homicides: no such impression should or could have been conveyed to the jury. without the selective presentation of evidence. The dispute over the character of the victims was entirely avoidable, and was entirely en- gendered by the prosecution attempt to present one-sided and misleading portraits of Uribe and Durbin and the effect of their deaths on their families. For these reasons appellant was denied due process by the exclusion of evidence relevant to an accurate portrait of Uribe and Durbin and the impact of their deaths on their survivors. XVI. EVIDENCE WAS IMPROPERLY INTRODUCED O F THE DEATH OF CHUCK DURBIN'S DAUGHTER NATASHA AND THE AUTISM OF HIS SON BRETT, WITHOUT FOUNDATIONAL EVIDENCE THAT THESE CIRCUMSTANCES WERE RELATED T O DURBIN'S DEATH. Victim impact evidence was introduced as part of the prosecution case in support of the death penalty. As part of the case in aggravation, the prosecution introduced evi- dence that Natasha died of influenza about a year after her father's death, and evidence that his son Brett suffered from autism. These were extremely aggravating circums- tances, yet no evidence was introduced that either circu~nstance was causally related to Durbin's death; both circumstances would have occurred without his death. Appellant was denied the constitutional right to trial on relevant penalty evidence. The rules of evidence must be applied at the penalty phase. (Penal Code $ 190.3, first 7 ; see People v. Richardson (2008) - Cal.4th - , 2008 Cal. LEXIS 6208 (* 147) ["The death penalty statute does not adopt any new rules of evidence peculiar to itself. but simply allows the generally applicable rules of evidence to govern."].) Prosecution evidence in aggravation must be relevant to an enumerated aggravat- ing factor. (People v. Boyd (1985) 38 Cal.3d 762, 776 [evidence of past nonviolent acts inadmissible]; People v. Edelbachev (1989) 47 Cal.3d 983. 1033 [evidence relating to factor (k) may not be introduced or relied upon as affirmative evidence in aggravation]; People v. Wrigl7t (1989) 48 Cal.3d 168. 220 [evidence of past prison misbehavior inad- missible].) l'he introduction ol'irrclcvant evidence in aggravation denied appellant the right to duc process and thc right to a reliable determination that death was the appropriate pu- nishment. in violation of' the Fifth. Sixth. Eighth. and 1:ourteenth Amendments to the United States Constitution. (Gard7er. t7. florid^^ (1977) 430 U.S. 349. 362 [denial of due process to base death judgment on infonilation in undisclosed presentence report]; Cald- well v. Mississippi ( 1985) 472 U.S. 320, 332 [denial of due process to base death judg- ment on availability of appellate review. a factor wholly irrelevant to the penalty process]: Johnson v. Mississippi ( 1988) 486 U.S. 578, 589 [denial of due process to base death judgment on evidence prior conviction which was "materially inaccurate" because conviction was later reversed on appeal].) On October 5, 1998. the defense filed written in lirnine motions requesting limita- tions on prosecution evidence in aggravation of the death penalty. Included was the ar- gument that "[a]llowable victim impact evidence does not include testimony or inflam- matory rhetoric aimed at arousing the emotions of the jury." ( 1 1 CT 2400.) On the afternoon of October 5. 1998. the defense made specific objection to pros- ecution evidence concerning the death o f the Durbins' daughter Natasha. MR. I,I'17MAN: Could we go back on Miss Durbin. talk about an is- sue'? 'THE COUR'I': All right. MR. LITMAN: We would submit that the h c t that Natasha passed away. I believe in 1997 with - we have heard as a result of asthma.["4] "' 'l'he cause of death was influenza. according to the testimony of Cindy Durbin. be- low. That fact. your Honor. should be excluded. It's highly prejudicial. And under 352 of thc Evidence Code it should be ex - should be excluded. THE COURI': The fact she died? MR. LITMAN: Right. I think it is getting into an area that you are looking at so much sympathy it's going to bear upon Mr. Rangel's ability to get a fair trial. And diverts the attention away from what we are doing here, mitigation versus aggravation, and focuses instead of on Mr. Rangel, it fo- cuses more on her and what she has had to go through. THE COURT: Just - all right. Mr. LiCalsi, is it necessary? MR. LICALSI: I think that's proper impact evidence when you have a death of a child, your husband isn't there to help you get through it. That's tremendous impact. THE COURT: All right. We will do a little more research on that issue. MR. LITMAN: I guess my response would be it depends on what her situation is. My understanding - I understood at one point she was liv- ing with her parents, with her parents who provided her support or just on her own and had no one to talk to. MR. LICALSI: That's correct. I think - MR. LITMAN: No. but 1 think it goes to the - yeah, that goes to the issue of - before we even get to the issue of cross-examination, I think that goes to the issue of admissibility. The trial court returned to the issue the following day. THE COURT: Very well. With regard to the circumstances of the death of the minor child Natasha, I couldn't find any guidance on that ei- ther. Anything further? MR. LITMAN: Well. I would say since it's the prosecution that wishes to offer that as the proponent. they should be able to find you some- thing to give you guidance on that. If ' they can't then 1 would think we should have a similar ruling.('15] THE COURT: Mr. 1-iCalsi. MR. LICALSI: 1 don't scc how I can find you case law on a specific point like that. The fact of the matter is it's relevant only to the extent that the victim's death impacted Cindy Durbin. She had to go through the death of a child without her husband to help her and console her. help her make funeral arrangements. That's relevant. I will ask her outside the court before I put her up. And if the an- swers are not as I anticipate, I won't ask her the questions. But it's relevant just with respect to the impact of a victim's death and what that had in rela- tionship to this child dying. And we can establish that this child's death had nothing to do with this MR. SCIANDRA: Your honor, I think that just as the court ruled earlier on the amount of methamphetamine in the system of Chuck Durbin in this case here, we are already dealing with I think very high impact emo- tional testimony. And now we are going to have testimony concerning the tragic death of this young child at some time substantially after these homi- cides occurred. And I think bearing little relevance on the culpability of our client in that it is so emotionally charged it is clearly going to divert the attention from - of the jury from the task of deciding based on Mr. Ran- gel's actions whether he should receive the death penalty or life imprison- ment without the possibility of parole. And so on constitutional grounds, the Fourteenth Amendment. the Eighth Amendment. and also on 352, that the pre-judice in this case h r outweighs the probative value of that particular evidence. THE COURT: Well. this is the victim's family, and the impact of death of Mr. Durbin had on them and the fact that Mr. Durbin was not there to assist Cindy Durbin. to give hcr support. and comfort over the death of their minor child. I think it is highly relevant. How emotional it will get, I can't predict. 115 The trial court had just excluded evidence of drug dealing from the Durbins' house, for lack of relevance (see Argument XV above). (10 RT 2339.) I I6 No such evidence was introduced by either side. MR. SCIANDRA: Well. 1 think we can predict that it's going to be extremely emotional. I mean. as is common sense. THE: COURI': Well. yeah. There-s going to be emotion. There is all levels of emotion. Mr. Durbin died three years ago. And the District Attorney could make it so inflammatory to cause a mistrial. However. if he asks the question matter of fact. and doesn't stir the emotions of the wit- ness. I think it's allowable. MR. LICA1,SI: And 1 have tried to advise my witnesses that the more cring they do. inability to answer the questions. is going to negatively impact this case. That they need to be able to keep their composure and an- swer the questions the best they can. THE COURT: These are all mature adults; they should be able to. All right.. . . Cindy Durbin took the stand and delivered penalty phase testimony. At the con- clusion of direct examination she was asked about the impact of her husband's death on their children. Q. Did this incident effect [sic] your children in any way? A. Yes. My son Brett for at least the first year, year and a half, every time the doorbell would ring at night he would run and hide underneath the coffee table. Savana still won't sleep alone. Q. Did Brett receive counseling? A. All of us did for the tirst year and a half. Tasha was affected most by it. Counselor saw her longer than the rest of the kids because she saw more. I think. She saw - she told me she saw the guy shoot Chuck. And she saw Chuck fighting with one of them. Q. Now you say Brett is still affected. Does Brett have any disabili- tv? A. He is autistic slightly. - . 0. 110~'s he have a difficult time co~nmunicating? A. Yes. He is getting bctter. 1-{is spccch - if you don't know his personality and stuff. it's hard for some people to understand ~vhat he is saying. . . . . Q. Are you re-married'! A. Yes. Six months ago I got re-married. Q. And now that you are re-married do thc affects [sic) of the mur- der three years ago tonight, are they no longer a problem for you? A. Oh. no. We still have a lot of problems. But my husband is very patient with me. I still wake up crying and stuff. Q. And does that cause some marital problems? A. Some, because I have been real depressed and real sad. Q. And how does that make your husband feel? A. He feels bad because he can't make me feel better. MR. SCIANDRA: Beyond pain [sic; should be Payne (v. Ten- nessee)]. Beyond victim impact. THE COURT: Overruled. BY MR. LICALSI: Q. Last - I believe last year did something - year and a half ago, did something happen to Natasha'? A. My daughter - died of influenza last August. Q. And did the fact that Chuck was not there to help you and con- sole you in that situation have any effect on your ability to deal with that death? MR. 1,ITMAN: Ob-jection. Ideading. '1'1-IF CCOIJRI': Overruled. THE WITNESS: Yes. I still don't think I dealt with her death. ( 10 R?' 243 1-2433; emphasis added.) Shortly after the conclusion of Ms. Durbin's testimony, the defense moved for a mistrial. MR. LITMAN: At this time we make a mistrial for this penalty phase based on the testimony elicited particularly from Cindy Durbin and from the other witnesses. the other family members. We just feel that this evidence has crossed the line of what Payne envisions and Payne rule[d] was admissible. I mean, you have people in here crying, sobbing. You have jurors crying. There's no way in the world, Your Honor, that our client can get a fair penalty phase with this kind of evidence being adduced. No admoni- tion to the jury would be adequate. And in particular, when you have the testimony that we objected to. this testimony about Natasha passing away, which I would submit is highly prejudicial. And you have testimony eli- cited that Ms. Durbin hasn't dealt with the death of her daughter. I mean, just highly inflammatory. And I just submit there's no way that due process and a fair trial can result with that kind of testimony. THE COURT: Well, I was just thinking the opposite. It went quite well, considering the nature of what the testimony is about. Witnesses al- though were crying, it was to be expected. It wasn't so outrageous or in- flammatory to create, you know, an atmosphere that the defendant was going to be prejudiced of either testimony. I think Mr. LiCalsi handled the examinations well. He could have gone a lot further inflaming or he could have done a lot more to bring out more emotion than he did. And I just had an impression that it was - what we were talking about was rather subdued. And it didn't get out of hand. So, no. 1 don't think there's any error in the testimony. It all goes to victim impact. It was fair. It was reasonable. It was reasonably under control. So your motion is denied. Evidence that Brett Durbin sui'f'ered fi-om autism. and Natasha I>urbin died of in- fluenza. was outside the scope of perlnissible victim impact testimony, because neither circulnstance was related to the homicide of Chuck Durbin. In the absence of a certain connection between the homicide and these tragic but unrelated subsequent events. the evidence was irrelevant and. at a minimum. Inore prejudicial than probative (Evidence Code $ 352). ?'he evidence should have been excluded. ". . .[E]vidence offered in aggravation must be excluded if not relevant. In this re- gard, the rules are similar whether the evidence is offered in mitigation or in aggravation. When offered for either purpose, the evidence must be relevant to the penalty determina- tion." (People v. Kelly (2007) 42 Cal.4th 763, 798.) Testimony concerning Chuck Durbin's surviving family members was introduced under the rubric of victim impact evidence, part of the circumstances of the crime. The admissibility of such evidence in general is not challenged in this appeal (but see Argu- ment XV above). Defendant acknowledges that so-called victim impact evidence may be introduced at penalty phase proceedings under the federal Constitution (Payne v. Tennessee (1991) 501 U.S. 808 (Pavne)) and that we also have found such evidence (and related "victim character" evidence) admissible as a "circumstance of the crime" under section 190.3, factor (a). (Roldan, supra, 35 Cal.4th 646, 730-731; People v. Panah (2005) 35 Cal.4th 395, 4 9 4 4 9 5 (Panah); People v. Benavides (2005) 35 Cal.4th 69. 107 (Bena- vides); People v. Brown (2004) 33 Cal.4th 382, 396-398 (Brown 10; People v. Pollock (2004) 32 Cal.4th 1 153. 1 1 8 1 (Pollock); People v. Edwards (1991) 54 Cal.3d 787. 832-836 (Edu)ards).) Defendant contends, however, that the testimony and photographic evidence described ante should have been excluded because it was partiall! irrelevant, largely cumulative, and "so unduly prejudicial that it render[ed] the trial fundamentally unfair'' (Payne, supra. 501 U.S. 808. 825) and/or constituted "'irrelevant informa- tion or infla~nmatory rhetoric that divert[edl the jury's attention from its proper role or inviteld] an irrational, purely sub-jective response . . . ."' (Ed- wards, supra. 54 Cal.3d at p. 836; see also Roldan, supra. 35 Cal.4th at pp. 732-733; Panah, supra, 35 Cal.4th at pp. 494-495: People v. Taylor (2001) 26 Cal.4th 1 155, 1 172.) [fn.] (People v. Robinson (2005) 37 Cal.4th 592. 650.) In resolving this claim, the Court in Robinson adopted the observation of the Texas Court of Criminal Appeals in Salazar v. State ('17ex.Crim.App. 2002) 90 S. W.3d 330: "we cau- tion that victim irnpact and character* evidence may become unfairly prejudicial through sheer volume. Even if not technically cumulative, an undue amount of this type of evi- dence can result in unfair prejudice . . . . Hence, we encourage trial courts to place ap- propriate limits upon the amount, kind, and source of victim impact and character evi- dence." (Id.. at p. 336, italics in original, quoted with approval in People v. Robinson, su- pra, 37 Cal.4th at 652 and in People v. Kelly, supra, 42 Cal.4th at 795.) By the fundamental test of relevancy. neither Brett's autism nor Natasha's death from influenza should have come to the attention of the jury. Brett's autism may have been the result of the homicide, as implied by the prosecutor's question and Ms. Durbin's answer. ("Q. Now you say Brett is still affected [by the homicide]. Does Brett have any disability?" "A. He is autistic slightly." (10 RT 2431.)) But no qualified expert was of- fered to establish a connection between the killings and Brett's autism. Indeed, it would have been i~npossible to connect Brett's autism to the homicide. If a doctor properly diagnosed his condition as autism, then it must have existed, by defi- 11': nition, before age three. Brett was age seven at the t i~nc of the shootings. (6 RT 1375.) Moreover. this is not a mere matter of' medical definition. Signiiicant research has been undertaken to determine the causal factors leading to autism. Of all the factors thought to contribute to autism. trauma has not been suggested as a possible or even contributing cause. (See. inter alia. Volkmar. et. al.. Handbook qfAutism and Pervasive Developmen- tal Disorders, 3rd Edition, vol. I . pp. 425. 434-436.) The death of Natasha was also unconnected to the homicide, according to the prosecutor.^ own representation. ("And we can establish that this child's death had noth- ing to do with this case.'' (10 RI' 2340.)) But the jury had no way to know of this conces- sion by the prosecution. To the contrary, they were invited to conclude that Natasha's death was the result of seeing her father shot to death. (Cindy Durbin: "Tasha was af- fected most by it. Counselor saw her longer than the rest of the kids because she saw more, I think. She saw - she told me she saw the guy shoot Chuck. And she saw Chuck fighting with one of them." ( 1 0 R1243 1 .)) A causal connection here is suggested intuitively even though not supported by the evidence. Natasha was age six at the time of the shooting in October of 1995. (6 RT 1375.) She died in August of 1998 (10 RT 2433)' when she was presumably age nine or ten. The jury was invited to conclude that she died "of a broken heart." because of de- pression and vulnerability froin lack of a parent. Common sense would suggest to the ' I 7 See Diagnostic and Statistical Manual of Mental Disorders. 4th Edition, Test Re- vision, American Psychiatric Association (DSM-IV-7'R) (2000), $ 299.00 "Autistic Dis- order." p. 73: "By definition. the onset of Autistic Disorder is prior to age 3 years." .jury that they would not have been infor~ned of such devastating information if it was not related to thc homicide and if the) mere not t o weigh Natasha's death in the balance of the death penalty determination. The purported pretext for the admission of the evidence - that Cindy Durbin was deprived of the support of her husband during the stressful period of her daughter's death - is unsound and has slight probative value. Many things could have happened to this family in the three intervening years. Given Chuck Durbin's drug usage and his drug as- sociates, it requires speculation to assume that the Durbin marriage would have remained stable.' " or that he would have been a solid moral force in the face of adversity. Many unrelated events, good and bad. are bound to happen within a family in the years following a homicide. They do not all relate to the homicide. The death of Chuck Durbin's daughter was an unrelated event which was uniquely bound to create an emo- tional reaction on the part of this jury. His contribution to Cindy Durbin's well being in the face of their daughter's death is largely a matter of speculation. Since there was no causal connection to the homicide. the evidence should have been excluded. If Natasha's death was the result of the killing of her father - and the jury was bound to so conclude by the mere fact that it was introduced in evidence - then it was de- vastating evidence in aggravation of the death penalty. ' I 8 See allusion to the Durbins' .'marital problems," suggested in police statement of Alvin Areizaga. ( 5 RT 1 156- 1 157.) Although the sub-ject was alluded to during discus- sions by the attorneys during the guilt phase, it was not developed in evidence at either phase. Norlnallc. a person is criminall~ liable for the reasonably foreseeable results of his criminal acts. (Peoj2le v. C'oft~zut7 and Murlotzl (2004) 34 Cal.4th 1. 106.) If a jury is in- vited to infer that the death of the victim's child is related to the homicide, and the child's death was a reasonably toreseeable result of the honiicide. then the jury will inevitably base the punishment on the child's death as well as the charged offense. In effect this evidence added an additional uncharged murder count to the death penalty balance. In these circumstances the jury did not reach the death judgment automatically or without reflection. solely as a result of the two murder allegations. Juan Uribe contri- buted to his own death by his involvement in the shooting of Little Pete. (See Penal Code 8 190.3 (f).)'" Moreover. as to Uribe appellant was an accomplice, not a direct perpetra- tor. (See 5 190.3 (i).)lzO Chuck Durbin was an innocent victim, however his murder and the simultaneous shooting of Uribe by Little Pete would not have led the jury to impose the death penalty without some additional consideration in aggravation. This death judgment was attribut- able in significant part to the conclusion. invited by the prosecution over defense objec- tion. that appellant was also responsible for the death of Natasha Durbin. The presence of multiple innocent victims is a circumstance which is bound to provoke the death penal- ty. (See People v. Carpenter. (1997) 15 Cal.4th 3 12. 420.) 11') "Whether or not the offense %as colnlnitted under circu~nstances which the defen- dant reasonably believed to be a moral justification or extenuation for his conduct." 120 '.Whether or not the defendant was an accomplice to the offense and his participa- tion in thc com~nission ofthe offense was relatively minor." This result \$as unacceptable by any standard. There was no showing of the cir- cumstances of Natasha's illness or Brett's autism. Both were attributable to other causes. unrelated to their father's death. though this was not coininunicated to the jury. Appel- lant was entitled to notice and jury determination of these causal links. if they even ex- isted, and especially since they did not. Instead, the poisonous implication was wafted to the jury on the slightest of breezes. The death sentence was unconstitutionally imposed on the basis of uncharged and unproven allegations, that appellant's crime caused Brett Durbin's autism and contributed to the death of Natasha. This procedure violates the fundamental due process require- ment of relevant evidence. (In re Winship (1970) 397 U.S. 358.) It fails to satisfy the hightened standard of review necessary when irrelevant information is relied upon to reach a death judgment. (Caldwell v. Mississippi, supra; Johnson v. Mississippi, supra.) The death judgment must be reversed. XVII. APPELLANT WAS DENIED THE CONSTITUTIONAL RIGHT T O CONFRONTATION BY THE USE IN EVIDENCE O F A STATEMENT TAKEN FROM NATASHA DURBIN. The prosecution penalty phase case relied in part on the statements taken from Na- tasha Durbin on the night of the murders. Natasha had passed away by the time of the penalty trial. and was thus bbunavailable" as a witness. By the current interpretation of the Confiontation Clause of the Sixth Amendment. applicable to this case on appeal, appel- lant was denied the right to confrontation. The use of Natasha's statements not only em- phasized the fact of her own intervening death. but also contributed new and unrebuttable information to the crime scene scenario. By the rule applied in Ohio v. Roberts (1980) 448 U . S . 56. in effect at the time of appellant's trial. an objection based on the Confrontation Clause did not bar admission of an unavailable witness's statement against a criminal defendant if the statement bore "adequate 'indicia of reliability."' (Id. at 66.) To meet that test, evidence had to either fall within a "firmly rooted hearsay exception" or bear .'particularized guarantees of trustworthiness." (Ibid.) This rule was changed during the pendency of the present appeal by the decision in Cruwford v. Wusl7ington (2004) 541 1J.S. 36. In Crawfbrd the Court found and de- clared that "the principal evil at which the Confrontation Clause was directed was the civ- il-lau mode of criminal procedure. and particularlq its use of ex parte examinations as evidence against the accused." (Id. at 50.) It wholly re-jected the test of "particularizcd guarantees of trustworthiness" for~nerly applied under Ohio v. Roberts, supra. While leaving a precise definition o1'"tcstimonial" t o another daq. the C I - ~ y f o r d court held firm- ly that "[wlhere testimonial statements are at issue. the only indicium of reliability sufti- cient to satis@ constitutional demands is the one the Constitution actually prescribes: confrontation." (ld at 68-69.) The Crawford decision is applied to all cases pending on direct appeal on the date of its decision. (People v. Price (2004) 120 Cal.App.4th 224, 238.)"' On the afternoon of October 5 , 1998. the trial court heard penalty phase motions in limine. Defense counsel (Litinan) indicated that they had no idea what victim impact tes- timony the prosecution was prepared to introduce. (10 RT 2309.) The District Attorney enumerated the penalty phase witnesses. He indicated his intention to present, through other witnesses, "the statements of Natasha Durbin she made regarding what she saw in the house at the time of the shooting." (10 RT 23 1 1.) "And we believe that we will get them in under a hearsay exception. She is deceased so she is un- available. We believe that given the time she made those statements and the circums- tances around them they will fall under the hearsay exception." (10 RT 23 12.) On a defense ob-jection, the trial court indicated that the manner in which the sur- vivors heard of the victims' deaths would not be relevant. (1 0 RT 23 13.) Defense counsel expressed a further ob-iection to hearsay statements from the Dur- bin children. He argued that hearsay rules apply to the penalty phase, citing People v. - 12 1 The C r a ~ f o r d rule is not retroactive to cases which have completed direct appeal and which were final on the date of its filing. even though pending in federal court habeas corpus review. ( Wlzorton v. Bockting (2007) 127 S. Ct. 1 173.) Ruj, ( 1996) 13 Cal.4th 3 13, 37 1. as well as People v. Hatnilton ( 1963) 60 Cal.2d 105 and People v. Nj)e ( 1969) 7 1 Cal.2d 356. 'I'he trial court agreed with that general principle. ( 10 RT 233 1-2332.) The arguments on in lirnine motions were continued to the follow- ing morning. On October 6. 1998. the trial court conducted a hearing under Evidence Code tj 402 (b), on the admissibility of Natasha Durbin's statements. Out of the presence of the jury. Detective Brian Ciapessoni testified that he responded to the crime scene on the evening of October 7. 1995. The children were in the kitchen of the Durbin home, upset and crying. (10 R'1' 2348.) Natasha Durbin told Ciapessoni that she awoke to see two males in the kitchen area. One said. "Juan. you disappointed us." She heard shots, then saw the two males leave through the front door. ( I0 RT 2349.) Ginger Colwell. Chuck Durbin's mother. also testified out of the presence of the -jury. She went to the Durbin house shortly after the shootings. and took the children home with her. They were "scared to death." Natasha told her that she heard them call Juan a "traitor." Daddy said to run and hide. She put a pillow over Savanna's head and pulled the covers up. ( 10 RT 2352.) Defense counsel objected to this testimony. In the defense view Natasha's reac- tion was "heroic" and "cornmendable," but i t would divert attention from the penalty de- termination. ( 10 R'T 2353.) The trial court observed that Natasha's account \vent to "the facts and circums- tances of the crime." It would come into evidence under 1-vidence Code tj 1240, the ex- ception for statements made under stress or ~xc i tement . "~ (10 KT 2354.) The prosecution offered case authority that the child's stateinent describing the murder could bc admissible even if uttered several days after the cvent. (People v. Trim- ble (1992) 5 Cal.App.4th 1225; People v. Jones (1984) 155 Cal.App.3d 653.) Defense counsel responded that it would be "a violation of [the] confrontation clause of the United States Constitution." The trial court overruled the ob-jection, based on the exception to the hearsay rule. Due to the excitement of the event, the child's out of court statements were "reliable and trustworthy." (10 RT 2355.) Brian Ciapessoni testified in the presence of the jury. Again he testified that he found three children in the kitchen of the Durbin house when he responded following the shooting. He interviewed Natasha in the master bedroom. She said that she was asleep in the living room when she was awakened and saw two strange men in the kitchen. One of the men said. "Juan, you disappointed us," then she heard shots. and observed the two 122 "Evidence of a statement is not made inadmissible by the hearsay rule if the state- ment: (a) Purports to narrate. describe. or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excite- . . rnent caused by such perception. lncn leave the residence. Shc thought shc could identifj the two (10 RT 2388- 2390.) In the course of Cindy Durbin's penalty phase tcstirnony she repeated a statement by Natasha: ". . . she told me she sau the guy shoot Chuck. And she saw Chuck fighting with one of them." ( 10 RT 243 I . ) Cringer Colwell testified in the presence of the jury. On the night of the shooting she took the children to her house. Natasha said. "grandmother, they were calling Juan a traitor." Her father said to "run and hide." She said that "she put a pillow over Savan- na's head. and it went over Brett's head. She pulled the covers up so they wouldn't get hurt." ( 1 0 RT 2439-2440.) Appellant was denied confrontation by the use of out-of-court statements of Nata- sha Durbin as an additional perspective on the shootings. Natasha's statements were "testimonial“ within the meaning of the Confrontation rule established in Crawford v. Washington, supra. The Crawford opinion left undecided the precise delinition of "testimonial" for ConSrontation Clause purposes (see above). Recently. in Davis v. Washington (2006) 547 U . S . 813, 126 S.Ct. 2266, the Court created a provisional, though not completely exhaustive, definition of "testimonial." . . . Statements are nontesti~nonial when made in the course of police interrogation under circu~nstances ob-jectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongo- ing emergency. They arc testilnonial when the circulnstances objectively 123 No evidence was introduced that Natasha made. or attempted to make, an identifi- cation of the perpetrators. indicate that therc is no such ongoing emergency. and that the primary pur- pose of the interrogation is to establish or prove past events potentially re- levant to later criminal prosecution. C'~*awfbrd involved a state court defendant from the State of Washington. Davis involved two state court defendants. Davis from the State of Washington. and Hammon from the State of Indiana. In Crawford the witness' statement was found to be testimoni- al by any test because the witness' statement was derived during police interrogation dur- ing which the witness herself was a suspect. In Davis the witness' statement was record- ed during a 91 1 emergency call, just after the witness was assaulted in a domestic vi- olence incident and while the defendant was fleeing from the scene. In Hammon the wit- ness' statement was taken by officers who responded to a 91 1 call and questioned both the defendant and the victim in their home. The Court determined that under its defini- tion of "testimonial," the 91 1 call in Davis was a reaction to a present emergency, not an account of past events. and hence not testimonial; the interview in Hammon was an ac- count of something that had recently happened, not a crime in progress but foreseeably for later use in court. and hence testimonial for Confrontation Clause purposes. (126 S.Ct. at 2278.) Detective Ciapessoni's interview of Natasha Durbin produced a testimonial state- ment for Confrontation Clause purposes. All danger had passed once he arrived. The children had to be interviewed to determine if they could identify the perpetrators. The purpose was to investigate and reconstruct the crime. to identify and arrest the perpetra- tors, and to asse~nble a case for presentation in court. 'I'he process took several weeks. but it started as soon as the detective arrived and began asking questions. The testimonial process continued when the children were taken to their grand- mother's house. Mrs. Colwell was not a casual or unconnected observer. She had every *justifiable reason to find out what the children kneu of her son's murder. Ms. Colwell "asked [Natasha] what happened" ( 10 RT 2352). and Natasha responded. The case had passed well into the investigation phase. and any of Natasha's statements to a responsible adult could be reasonably anticipated to wind up as evidence in a future trial. (See People v. Sisavath (2004) 1 18 Cal.App.4th 1396. 1402 [post-offense interview of child sex of- fense victim in hospital setting].) It is understandable that the most useable testimonial statements would be ex- tracted from a child witness during directed questioning by a trusted person such as a grandparent. The situation would be quite different if the statements were made casually during a "back fence" conversation with a friend or other disinterested, uninformed per- 124 son. Evidence Code $ 1240 permits the introduction of spontaneous declarations over a hearsay ob-jection. However, the hearsay exception does not cure the objection taken, as here. under the Confrontation Clause. 124 Compare People v. Griffin (2004) 33 Cal.4th 536. 579. in. 19 [victim's pre-offense statements to a school friend were non-testimonial under Crawjordl; People v. Cervantes (2004) 1 18 Cal.App.4th 162. 175 laccotnplice statement to lifelong friend in the course of obtaining tnedical treatment, held non-testimonial]; People v. Butler (2005) 127 Cal.App.4th 49. 59 [spontaneous statements to co-workers were not testimonial under Crawford]. A testimonial statement can be takcn shortly after the incident. while the declarant is still under the stress of the excitement of a violent confrontation and thus within the hearsay exception for spontaneous declarations. 'Thus the statement may be a spontane- ous declaration. and yet excludable under thc Confrontation Clause. This apparent di- chotomy is well illustrated by the Hammon portion of the opinion in Davis v. Washing- ton, supra. In that case, officers responded to the scene of a domestic disturbance, find- ing the husband-perpetrator still in the living room. and broken glass on the floor from the face of a furnacc which was still blazing into the room. The wife-victim, still under the stress of the assault, reported that he had pushed her into to the glass. She was not available to testify at trial. Such a hearsay statement would be admissible in California, as in Indiana, as a spontaneous declaration. Yet the Supreme Court held that it was re- ceived in violation of the Confrontation Clause because it was derived from an interview intended to produce information and evidence in a criminal trial."5 125 "It is entirely clear from the circumstances that the interrogation was part of an in- vestigation into possibly criminal past conduct--as. indeed. the testi8ing officer expressly acknowledged, App. in No. 05-5705, at 25, 32, 34. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything, id., at 25. When the officers first arrived, Amy told them that things were fine. id., at 14, and there was no immediate threat to her person. When the officer questioned Amy for the second time. and elicited the challenged statements, he was not seeking to determine (as in Davis) 'what is happening.' but rather 'what hap- pened.' Objectively viewed, the primary. if not indeed the sole, purpose of the interroga- tion was to investigate a possible crime--which is. of course. precisely what the officer should have done." (Davis v. Washington, supra. 126 S.Ct. 2278.) 'l'he young girl whose statement was used in the present case was under the stress of the event -- the shooting death of her father - but this does not mean that she could not give a testimonial statement in response to interrogation or mild prompting. Post-C'rarzjfbrd, some cases have approved the use of spontaneous declarations when the statements were made in a casual, non-interrogation setting with no anticipation of the later use of the statements in court. It is the interrogation aspect of this case, in re- sponse to a legitimate and critical need for information. which distinguishes the present case from those cases. The Crawford opinion itself intimated that there might be an unresolved issue of the admissibility of spontaneous declarations. based on one of its own decisions dating from 1992."' 14owever. it gave no reason to suppose that there is bbspontaneous declara- tion exception'' to the Confrontation Clause. The language from prior authority alluded 126 "One case arguably in tension with the rule requiring a prior opportunity for cross- examination when the proffered statement is testimonial is White v. Illinois, 502 U.S. 346, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992), which involved. inter alia, statements of a child victim to an investigating police officer admitted as spontaneous declarations. Id., at 349-35, 1 1 16 L. Ed. 2d 848, 112 S. Ct. 736. It is questionable whether testimonial state- ments would ever have been admissible on that ground in 1791 ; to the extent the hearsay exception for spontaneous declarations existed at all. it required that the statements be made 'immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage.' Thompson v Trevanion, Skin. 402, 90 Eng. Rep. 179 (K. R. 1693). In any case, the only question presented in White was whether the Confrontation Clause imposed an unavailability requirement on the types of hearsay at issue. See 502 U.S.. at 348-349. 116 L. Ed. 2d 848. 112 S. Ct. 736. The holding did not address the question whether certain of the statements, because they were testimonial. had to be excluded even if the witness was unavailable. We 'ltook] as a given ... that the testimony properly falls within the relevant hearsay exceptions.' Id., at 351, n. 4, 116 L. Ed. 2d 848. 112 S.Ct. 736." (Crawford v. Washington, supra, 54 1 U.S. at 58, fn. 8; emphasis added.) to in Crorvfird (W/~i/e tl. Illinois) was ciicta. I t did not infer a broad exception to the Con- frontation Clausc. Indeed. nothing could be closer to the point than the Court's own opinion in Hummon. supra. ?'here the victim was interviewed in her home. in the presence of her husband - the perpetrator - within a short time of the offense. She was unquestionably under the stress of the recent assault. I f there was ever a time to apply a "spontaneous declaration" exception to the Confrontation Clause, that was it. But the Davis/ Hammon 7 - opinion suggests nothing of the sort. I here is no Confrontation Clause exception just be- cause the witness was excited, fearful, or stressed by the recent crime. Accordingly, California case authority which was decided post-Crawford but pre- DavidHammon, suggesting that there might be a spontaneous declaration exception to the Confrontation Clause, is out of step with the DavidHammon definition of "testimoni- al," and must be o~erru led ."~ See People v. Rincon (2005) 129 Cal.App.4th 738. 757 [pre-Davis]: "From Craw- ford's reasoning, we conclude that Salas's out-of-court statements are not testimonial. They are not similar to Crawford's concrete examples of testimonial statements: prior testimony and police interrogations. It bears repeating that we are not here concerned with the Sanchez-to-Heieck level of hearsay. Although Sanchez's out-of-court state- ments to Detective Heieck resulted from police interrogation, Sanchez appeared for cross-examination at trial, and use of his out-of-court statements at trial raises no issue under the confrontation clause. (Crawford v. Washington, supra. 541 U.S. at p. 59, fn. 9.) Further, Salas's statements lacked any degree of legal or procedural formality. Rather. Salas spoke to a civilian, Sanchez. at Sanchez's home in the immediate aftermath of a shooting - a shooting in which Salas himself was wounded. Salas could not reasonably have anticipated that Sanchez, a former gang member. would relate the statements to law enforcement, or that the statements would somehow be used in court. Moreover, as we have held, Salas's statements qualify as spontaneous statements under Evidence Code section 1240. the requirements of which are largely identical to the common law hearsay exception for spontaneous declarations as described in Crawfbrd. That is, substantial 'The police response in Hamrnon, as here, had passed from intervention and rescue. to investigation and interrogation. There is no spontaneous declaration exception to the Confi-ontation Clause. Appellant was pre-judiced by the use in evidence of Natasha's statements describ- ing the shootings. Apart froin their content, her statements were a "voice from the grave." a reminder of the tragic circuinstances of her own life and death. Since her death was not attributable to her father's death. it was not fair to emphasize such unrelated con- siderations in penalty phase evidence. (Evidence Code Ej 352; compare People v. Mendo- za (2007) 42 Cal.4th 686, 698 [statements of deceased victim used to establish defen- dant's motive. and not for the truth of matters stated].) Turning to their content, the following specific penalty factors were injected solely through the out-of-court statements of Natasha Durbin. I . In her statement to Detective Ciapessoni. Natasha stated that she saw both of the intruders in the kitchen shooting Juan Uribe. (10 RT 2388.) This contradicted or added to testimony by other eyewitnesses. who claimed that only Little Pete was directly involved in the shooting of Juan Uribe. (The autopsy evidence indicated that only the .22 rifle was used in that homicide. (4 RT 967-969.)) Cindy Durbin was not sure if one or both of the evidence supports a finding Salas spoke "'iminediat[ely] upon the hurt received, and be- fore [the declarant] had time to devise or contrive any thing for her own advantage." [Ci- tation.]' (Crawford, supra. 541 1J.S. at p. 58. fn. 8.) Such a statement, Crawford strongly implies, is not testimonial." (Emphasis added.) intruders entered thc kitchen."' In Richard Diaz' account. appellant did not leave the liv- ing room. ( 5 RT 1273.) Jesse Rangel repeated a version which he attributed to Little Pete, in which Little Pete was solely responsible for shooting Juan Uribe. while appellant remained by the front door. (6 R'T 1501 .) Richard Fitzsiinrnons only saw the perpetrators at the front door. just before he fled to another rooin. (8 RT 2008.) Thus, in Natasha's version appellant was a direct perpetrator of the murder of Juan Uribe; in other accounts he was an aider and abettor. This hightened degree of criminal involvement inevitably contributed to the death penalty verdict. 2. In her statement to Ciapessoni, Natasha stated that one of the men said, "Juan, you disappointed us." (10 RT 2388.) This statement added to the portrait of the scene provided by the adult witnesses, none of whom mentioned it. In this context it is a par- ticularly chilling statement, and added to the weight of the case in aggravation of the death penalty. 3. Natasha's statement that the assailants called Juan a "traitor," while similar to her mother's testimony, was used as corroborating evidence on that point, in prosecution argument to the jury. (10 R1' 2549.)"9 128 "One or both of them, I don't know, came in and started shooting Juan." (6 RT 1388.) Compare her statement to police shortly after the shootings (8 RT 1925-1926). and her testimony describing the shootings again at the penalty phase. ((10 RT 2426- 2427.) 129 "You heard the testiinony of Cindy, and you heard the testimony of the statements of Natasha. And they both say the same thing. That a voice in that house said Juan. you are a traitor." 4. Natasha's statements describe her efforts to protect her siblings. by covering them with blankets and pillows. While it is natural to infer or assume that the children were potential victims ofthe random shooting. Natasha's account brought the point home with particular acuity. For these reasons, it cannot be said that the violation of the Confrontation Clause was harlnless beyond a reasonable doubt. (Chapnzan v. California (1967) 386 U.S . 18; Satterwhite v. Texas ( 1988) 486 U.S. 249. 258-259.) Appellant was prejudiced by the use of Natasha Durbin's out-of-court statements, introduced in violation of the Confrontation Clause, and the penalty phase judgment must be reversed. XVIII. THE TRIAL COURT ERRONEOUSLY REFUSED REQUESTED PENALTY PHASE INSTRUCTIONS THAT WOULD HAVE INCLUDED THE MOTIVATION FOR THE KILLING O F JUAN URIBE AMONG MITIGATING FACTORS. Appellant's son suffered a near-fatal gunshot wound to the head. about two weeks before the fatal shootings at the Durbin house. By the prosecution's own guilt phase evi- dence and argument. it was that shooting which furnished the motive for appellant to join in the effort to hunt down and kill Juan Uribe. In the defense view, motive was a mitigat- ing circumstance on this record, because fear was a natural human reaction which would have been shared by reasonable people in the same circumstances. While not a legal excuse, motive here was an important mitigating circumstance. The trial court erred by refusing to read requested defense instructions on motive as a mitigating circumstance. Rule. As a matter of state law. a criminal defendant is entitled, on request, to jury instructions which "pinpoint" a theory of the defense. "A defendant is entitled to an in- struction relating particular facts to any legal issue." (People v. Sears (1970) 2 Cal.3d 180, 190, citing People v. Kane (1 946) 27 Cal.2d 693, 699-702; People v. Cook (1905) 148 Cal. 334, 346-347; People v. Eckert ( 1862) 19 Cal. 603, 605; People v. Mayo (1 96 1) 194 Cal.App.2d 527, 536-537; People v. Plywood Mfrs. of Cal. (1955) 137 Cal.App.2d Supp. 859. 872-875: People v. Cohn (1949) 94 Cal.App.2d 630. 638; and People v. Wil- son ( 1 929) 100 Cal.App. 428. 43 1-432: see also United States v. Smith (9th Cir. 2000) 21 7 F.3d 746 746. 750. expressing the same principle as a matter of federal criminal pro- cedure.) 'I'he Sears principle is meant to pinpoint a theory of the defense. It is not meant to pinpoint particular evidence. which would put the trial court in the position of advocating a particular view or interpretation of the evidence. A Sears instruction should therefore be framed in terms of a defense theory. and not by reference to particular witnesses or evidence. (People v. Wright ( 1 988) 45 Cal.3d 1 126. 1 137: People v. Wharton (1991) 53 Cal.3d 522, 570.) The defense instructions proposed here on motive focused on a de- fense theory of mitigation. and therefore were properly framed under the Sears principle. Beyond the state procedural consideration is a fundamental requirement of consti- tutional law. The jury instructions to a penalty phase jury must permit the sentencer to consider all mitigating evidence. In Lockett v. Ohio ( 1 978) 438 U.S. 586, the Court set aside Ohio's death penalty statute as unconstitutional because it unduly restricted the mi- tigating evidence that a jury could consider in deciding whether to impose the death pe- nalty. In his opinion announcing the judgment, Chief Justice Burger wrote: "There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments." (Id.. at 605 (plurality opinion).) Buckground The presentation of guilt phase evidence began on September 9. 1998. ( 1 1 C1' 2357.) On that date. the defense submitted Defendant Pedro Rangel, Jr.'s Jury Instructions. (1 2 CT 2487-2558; see date of submission at 12 CT 2487.) This set of instructions included proposed jury instructions for both the guilt and penalty phases of the trial. The proposed instructions were submitted in numerical CALJIC order, therefore the penalty phase instructions, 8.84 through 8.88. appeared in the midst of instructions which applied only to the guilt phase (12 C'I' 2538-2543). CALJIC 8.88 as proposed by the defense was modified from the standard version. An additional death penalty sentencing factor was inserted as factor (e); the remainder of the list was renumbered (thus the final factor (k) became (j)). The proposed factor (e) was a continuation of factor (d): (d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. (e) Whether or not the victim in whole, or in part. contributed to the extreme mental or emotional state of the defendant. (12 CT 2540; emphasis added.) No discussion of the proposed modification appears in the record. The original standard version of CALJIC 8.85 was read to the penalty phase jury, without the proposed modifi- cation referring to whether the victim contributed to the defendant's "extreme emotional state." (12 CT 2575-2577.) Evidence of motive, related to the shooting of 1,ittle Pete. Juan Uribe's likely in- volvernent, and appellant's reaction to that shooting. was introduced during the guilt phase trial. According to the prosecution case. on thc night 01' September 24. 1995, following a series of skirmishes between loosely dctined or undefined factions (some former fi-iends) in the streets of Madera, appellant's son was hit in the head by a bullet. He sutl fered a laceration five or six inches long. about one-half inch wide. from near the left temple diagonally to the right eye. Police found several bullet holes and blood splatters in his car. (4 RT 1067- 1069.) No arrest was made for that incident. Richard Diaz testified that Juan Uribe was in the car from which the shot was fired. He understood that they were shot at because of the series o f confrontations earlier in the evening. None of this information was provided to police. ( 5 RT 1323.) Appellant received a phone call and rushed to the hospital, where he found his son injured and his BMW shot up. ( 2 ACT 398 [interrogation transcript].) He was told that his son came within a fraction of an inch of losing his life. Appellant came to understand that Jesse Candia, Sr. was responsible. ( 2 ACT 40 1-402.) He felt that his son might know who shot him, but he did not tell appellant. (2 ACT 405.) 'There was retaliation for the shooting, directed mainly at Juan Uribe. (See 4 RT 1086 [shooting of Uribe's BMW on September 25, 19951; 5 RT 1340 [fight at a market between Uribe and his friend Chris Castaneda, and Richard Diaz].) 'l'he shooting of his son weighed on appellant's mind. During the barbecue on the evening of October 7. 1995. appellant got drunk. He talked about "his son getting shot in the head, about getting back [at] whoever did it." ( 5 RT 1262.) According to the prosecu- tion case, appellant and his group went to Juan Uribe's house. When they did not find Uribe there. they set out for Chris Castaneda's house. On the way they came upon Ilribe's car. which was parked near the Durbin house. (5 R1' 1267.) The homicides fol- lowed immediately thereafter. In a statement to police on November 20, 1995, although he denied involvement in the murders, appellant said that he had to leave his job with FMC because his son had been shot. He heard that someone was trying to hurt his son. and he had to be with him 24 hours a day. (2 ACT 390.) He felt that they needed to "get the hell out of this place," because "it's getting pretty violent around here." (2 ACT 407.) The prosecutor argued that the killings were motivated by "revenge" and "re- spect." Now the judge is going to instruct you that in this case we don't have to prove what the motive was in order to get a conviction. That's not one of the elements of the crime. But we have proved what the motive was in this case. revenge. Revenge caused by a macho idea of what respect means. And the defendant gives you a little idea of this in his statement to Detective Ciapessoni. When he is talking about his relationship with his son, he says we have respect for one another. And then when he is talking about his relationship with Romi Singh, he says we have respect for one another. Respect is very important to that man. And when his son got shot in the head, that was disrespectful. I t was disrespectful to his son and to him and his family. He had to get revenge. (9 K T 2 145-2 146; emphasis added.) Defense counscl, in contrast, argued that Jesse Range1 was one of the shooters. Jesse Range1 had a similar motive. to avenge the shooting of his cousin. evidenced by the shooting of Juan IJribe's car. thus it was plausible to point the linger at Jesse Rangel. (9 l'he trial court instructed thc jurj in the language of CAI,JIC 2.51. that motive may be considered in the guilt phase. Motive is not an element of the criine charged and need not be shown. However. you may consider motive or lack of motive as a circuins- tance in this case. Presence of motive inay tend to establish the defendant is guilty. Absence of motive inay tend to show the defendant is not guilty. ( 12 CT 2729; 9 R'I' 225 1-2252.) On or before October 7. 1998. the defense submitted two identical sets of pro- 130 posed jury instructions solely for the penalty phase. Among the proposed instructions was Defense Special Instruction No. 8. You inay consider the motive for the commission of the crime as a mitigating factor which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any other aspect of the defendant's cha- racter or background that the defendant offers as a basis fbr sentence less than death. In support of this proposed instruction the defense cited People v. Easley (1983) 34 Cal.3d 858. 878. fn. 10."' and People v. Cox (1991) 53 Cal.3d 61 8, 672 [same]. 130 One set appears at 12 CT 2469-2486. The other set appears at 12 CT 2585-2599. The format of the two sets is slightly different. but most of the content appears to be the same. The first reference on the record to the defense proposed penalty phase jury in- structions was on October 7, 1998, the second day of the penalty phase trial. The trial court had reviewed the proposed instructions by that point. (10 RT 2414.) One set of proposed instructions was stamped filed on October 13, 1998 (see 12 CT 2559), the day penalty phase deliberations began. The other set, which begins at 12 CT 2585, has no stamped filed date. 131 "[Tlrial courts -- in instructing on the factor embodied in section 190.3. [factor] (k) -- should inf'orm the jury that i t ma) consider as a mitigating factor 'any other cir- In a colloquy on October 7. 1998. defense counsel argued that the proposed in- struction served an important purpose. I t pointed to evidence of motive as mitigating, even if not a justification. (10 RT 24 18.) The prosecutor responded that he would be ar- guing motive as an aggravating circuinstance of the crime. "And I believe that the in- structions under K['"] clearly allow the jury to consider motive. and this should not be given." ( I0 R?' 24 18.) The trial court agreed with the prosecutor, reasoning that if both sides were to argue motive. "then it's up to the jury to determine whether it's a factor A or factor K." (10 RT 241 8.) ". . . Form of number 8 in light of Mr. LiCalsi's projected ar- gument would confuse the jury." ( 1 0 RT 24 19.) Defense counsel offered to modifi the proposed instruction to cross-reference fac- tor (k), but the proposal was re-jected. (1 0 RT 24 19.) At the penalty phase trial Angela Chapa testified that she was present when the call came from the hospital that Little Pete had been shot. Appellant was crying that night and the next day. (10 RT 2518.) On cross-examination she admitted that, in the prosecutor's words, Little Pete "wasn't really shot in the head, it was the scalp.'' (10 RT 25 19.) cumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime' and any other 'aspect of [the] defendant's character or record . . . that the defendant proffers as a basis for a sentence less than death.' [Citation.]" I32 "(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of the defendant's character. background or record that the defendant offers as a basis for a sen- tence less than death. whether or not related to the offense for which he is on trial." (CALJIC 8.85. given at 12 CT 2576-2577.) On October 8. 1998. following thc close of' evidcnce and just before penalty phase arguments, the trial court reviewed the jury instriictions and again rejected the proposed instruction on motive. ..Eight, the court has re-jected motive instruction. Both sides will arguc motive under A or K. factor A or factor K. I-hercf'ore. the motive instruction will be misleading." ( 10 RT 2535. ) In penalty phase argument the prosecutor addressed the specific penalty factors related to motive that might conceivably apply to mitigate the penalty for the murder of Juan Uribe - extreme mental or emotional disturbance, victim participation in homicidal conduct. and moral ju~tification."~ In his view none of them applied to this evidence." I33 See Penal Code 5 190.3, subd. (d). (e). and (f): "(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. "(e) Whether or not the victim was a participant in the defendant's homicidal con- duct or consented to the homicidal act. "(f) Whether or not the offense was committed under circumstances which the de- fendant was reasonably believed to be a moral justification or extenuation for his conduct ." 134 "Factor D is whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. He was not. There's no evidence that this factor applies. Now since it doesn't apply. does that mean it's an ag- gravating factor? No. it doesn't. It just means that it's not a mitigating factor. "Factor E. whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act. Doesn't apply. You don't consider as an ag- gravating factor. Just doesn't apply. Factor F, Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct. Once again, ladies and gentlemen, we submit to you that it doesn't apply. So you shouldn't consider i t . . . ." (10 RT 2542.) In a reprise of his guilt phase argument. the prosecutor defined appellant's unders- tandable frustration at his son's near-fatal shooting injury as merely a matter of "respect." Likewise, he diminished the seriousness of Little Pete's gunshot injury as a legitimate source of parental concern. Now we get to the motive that we talked about earlier. This wasn't a situation ofjealousy. This wasn't a sudden heat of passion or rage which developed over a certain period of time. This wasn't greed. The motive in this case was respect. His family wasn't given the respect he felt it de- served. You heard little Pete Rangel wasn't seriously iniured. It was iust a graze to the top of his head. . .. This was about respect. And then the motive for the killing of Chuck Durbin is even worse. There wasn't even this hatred or the lack of respect to his family for that. He was just in the way. So he had to kill him. He had to kill him. And all Chuck was doing was trying to save his children.. . . (10 RT 2549-2550; emphasis added.) Defense counsel Litman disagreed on the reaction to Little Pete's shooting injury as a factor in aggravation, as claimed by the prosecution. I just want to mention something that I think was very inconsistent on behalf of Mr. LiCalsi in his argument. When he is trying to put things in perspective and he is talking about the injury that Cindy Durbin suffered and the injury our client's son suffered, he minimizes the injury our client's son suffered. But if you think about it, he was shot in the head. He went to the hospital. He needed stitches. And if that shot had been that much low- er, his son could have been killed. His son could have been a vegetable. So I mean, this was very close to being a fatal or substantial injury to his son. And I think you heard how this affected Mr. Rangel. How he reacted at the hospital. How he reacted later at home when he was found by Mrs. Chapa sitting on the stairs crying over the injury that his son suf- fered. But despite that you heard evidence - you heard from Mr. Edwards that Mr. Range1 was trying to keep things under control. He was trying to talk his son into putting this behind him. I~le was trying t o tell his son to forget about it. He was concerned that his son could be killed. I'm a father. I'm sure you gentleman - I don't know for sure - some of you. you know, at least are fathers. I'he ladies. 1 know. have children. I think i t would be just absolutely false to say that any one of us whose child was shot or in-jured, that we would not be angry about it. That we would not be outraged about it. ?'hat we wouldn't be furious at the person who did this to our child. (10 RT 2560-2561: see also argument of defense counsel Sciandra at 10 RT 2588.) At the conclusion of the penalty phase of the trial the jury was instructed, "Disre- gard all other instructions given to you in other phases of this trial." (CALJIC 8.84.1; 12 CT 2539; 10 RT 2595.) This instruction effectively erased the earlier guilt phase instruc- tion on motive;'35 no further instruction was read at the penalty phase on the use or con- sideration of evidence of motive. Analysis. The trial court erred by refusing the requested instruction that would have focused on appellant's motive for the attack on Juan Uribe (12 CT 2476), as well as the earlier proposed instruction that would have focused on Uribe's contribution to appel- lant's emotional disturbance (12 CT 2540). The guilt phase instruction on motive was eliminated by the reading of CALJIC 8.84.1. The general factor (k) instruction is notoriously non-specific. It cries out for clari- fication, and a pin-point instruction when requested by the defense should be seriously 135 See People v. Carter (2003) 30 Cal.4th 1 166, 122 1, People v. Brasure (2008) 42 Cal.4th 1037, 1073. and People v. Wilson (2008) 43 Cal.4th 1, 28, finding error in this instruction where gaps are left in the jury's consideration of penalty phase evidence. considered. It was error to refuse the requested instructions as a matter of state law. (People v. Sears, supra. ) As a matter of constitutional law. the United States Supreme Court has directly discussed factor (k). and the necessity for clarification of the scope of that "catch-all fac- tor." in three opinions. In BoIvde v. Califorr?ia (1990) 494 U.S. 370, the Court reviewed a version of factor (k) which did not provide specifically for jury consideration of mitigating evidence which was not related to the circumstances of the crime, such as the defendant's background and c h a r a ~ t e r . ' - ~ V h e defendant in Boyde introduced good character evidence, the effect of which, he argued, was obscured by the former language of factor (k). The Boyde court formulated the standard for review of such contentions as a "reasonable likelihood" of misunderstanding by the jury. "We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." (494 U.S. at 380.) Under that test, the Court determined that there was not a reasonable likelihood 136 "(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." . . . "If you conclude that the aggravating circumstances outweigh the mitigating cir- cumstances. you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole." (Quoted in Boyde v. California, supra, 494 IJ.S. at 374 and 375. The stan- dard jury instruction was amended after Boyde's trial, to reference the de- fendant's background and character. and to accommodate the holding of People v. Easley, supra.) that the jury was misled, or ignored the evidence of pre-offense background and character ot'f'ered in mitigation. In Brown v. Pavton (2005) 544 U . S . 133. the high court again reviewed a state death judgment. again under the pre-amendment language of factor (k) ("[alny other cir- cumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime."). As in Boyde, the jury instruction did not provide explicitly for jury con- sideration of evidence of the defendant's character and background, including his post- offense conversion to Christianity. The trial judge in Brown v. Payton permitted argu- ment under the assumption that such evidence was relevant to the penalty determination, but declined to modify the jury instruction. This Court affirmed, relying on Boyde. On federal habeas corpus review, the Supreme Court held that it was not unreasonable for this Court to conclude that post-offense conduct was embraced in a common-sense read- ing of the old factor (k), just as the defendant's pre-offense background was embraced by a common-sense reading of old factor (k) in Boyde, and despite the prosecutor's argu- ment that the mitigating evidence was of little significance. In Avers v. Belmontes (2006) 549 U . S . 7. the Court again considered the scope of an instruction on factor (k), again involving a pre-amendment jury instruction. The de- fendant in Belmontes relied on "forward looking" evidence. evidence that he would be a source of positive contribution to the colninunity if allowed to live; he had had a pre- offense religious conversion. but had lapsed. On appeal he argued that the pre- amendment language of factor (k), limited to the circumstances of the crime, hobbled the jury's ability to consider this mitigating evidence. The Supreme Court, as in Brown. held that there was nothing to prevent the jury from considering the proposed evidence in mi- tigation. In the Bo-vde-Brown-Belmontes line of cases. directed at California's factor (k) as fonnerly worded, the Court thus emphasized the perceived inclusiveness of unadorned factor (k). to matters which thc jury would normally assume to be relevant to punishment. even in the absence of a specific instruction. In contrast to that line of cases is the high court's opinion in Penry v. Johnson (2001) 532 U.S. 782. In that case the defendant offered evidence of his mental retarda- tion and childhood abuse, in mitigation of the death penalty. The standard jury instruc- tion in Texas provided that the jury must answer three penalty questions: ( I ) whether the killing was deliberate, (2) whether the defendant poses a risk of future dangerous con- duct, and (3) whether the killing was provoked by the victim. The Penry jury was also instructed that it could consider in mitigation "any aspect of the defendant's character and record or circumstances of the crime" - language similar to the language later added to the California jury instruction following Easley, and used in the present case, but not used in Boyde, Brown, or Belmontes. The Penrv court held that this instructional framework, even with the "catch-all" reference, was insufficient to give full effect to the defendant's offered mitigating evi- dence. . . . Penry I (Penry v. Lvnaugh ( 1989) 492 U.S. 302) did not hold that the mere mention of "mitigating circumstances" to a capital sentencing jury satisfies the Eighth Amendment. Nor does it stand for the proposition that it is constitutionally sufficient to inform the jury that it may "consider" mi- tigating circumstances in deciding the appropriate sentence. Rather, the key undcr pent;^, I is that thc jurq bc able to "consider and give effect to [a delkndant's mitigating] evidence in imposing sentence ..- 492 U:S. at 319 (emphasis added). See also Johnson v. Texas. 509 U.S. 350, 38 1, 125 L. Ed. 2d 290. 113 S. Ct. 2658 (1993) (O'CONNOR. J.. dissenting) ("[A] sen- tencer [must] be allowed to give.full consideration and full effect to mitigat- ing circumstances" (emphasis in original)). For it is only when the jury is given a "vehicle for expressing its 'reasoned moral response' to that evi- dence in rendering its sentencing decision," Penrv I, 492 U.S. at 328, that we can be sure that the iury "has treated the defendant as a 'uniquely indi- vidual human being' and has made a reliable determination that death is the appropriate sentence,'' id. at 3 19 (quoting Woodson v. North Carolina, 428 U.S. 280. 304, 305.49 L. Ed. 2d 944. 96 S. Ct. 2978 (1976)). (532 U.S. at 797; emphasis added.) What was missing in the factor (k) instruction in the present case was the key ele- ment which was missing in the Penry scenario: a means for the sentencing jury to give full effect to the defense mitigating evidence. Motive was a key part of the prosecution case at the guilt phase. and the prosecution led off the penalty phase with an argument that the motive tbr the killing was merely a matter of "respect" - clearly an aggravating consideration. It was not by any means clear, as a matter of common sense, that a motive for murder could ever be mitigating. The guilt phase trial had already eliminated by infe- rence motives which might be legal justifications for murder, including heat of passion and defense of others. And yet, the defense had an important point: that appellant was acting out of un- derstandable parental concern when he joined in the pursuit of Juan Uribe. The threat to appellant's son was, in his eyes. on-going. The threat remained unaddressed by law en- forcement. which was colnpletely unable to provide protection in these circumstances. Moreover. the gunshot wound to the head was Inore than a matter of "respect"; it represented a deadly threat to his son's life. Indeed. evidence of such a shooting would have supported a conviction for premeditated attempted murder and a life prison sen- tence, if properly prosecuted (a point that the public prosecutor seemed to be blind to). Even outright vengeance would have been at least understandable in such a situa- tion, which in itself distinguishes this from capital murders which are committed for mo- tives which are petty or trivial. or entirely undecipherable. The language of factor (k) does not operate to give "full effect" to the defense view of motive. Rather, under a common sense reading of the instruction, a jury could well conclude that evidence of motive was not something which could be considered at all in mitigation. The defense was reduced to trying to counter or rebut the prosecution argument that appellant's motive operated solely and entirely in aggravation of the offense. Since there was no jury instruction on point, the prosecutor was free to argue motive as a factor in aggravation. Defense counsel then had to reduce the effect of the aggravation argu- ment, before the motive evidence could ever be considered in mitigation. (10 RT 2560- 2561. 2588.) Their plea to the jury was a means of damage control, to try to humanize something which could apparently only function as aggravation. Appellant was thus pre-judiced by the trial court's refusal of pin-point instructions on motive as mitigation. Either side should have been free to argue the relative effect of motive evidence. But the defense should have had the better part of the argument, sup- ported by an appropriate jury instruction. By introducing the use of lethal force, Juan Uribe provoked a defensive move and/or retaliation by appellant, a person who was law- abiding and who would not otherwise have been drawn into this cycle of violence. The iury should have been directed to consider motive evidence in mitigation. I t was reversi- ble error to refuse the requested instructions. XIX. THE TRIAL COURT IMPROPERLY REFUSED DEFENSE- REQUESTED PENALTY PHASE INSTRUCTIONS ON THE ASSESSMENT OF MITIGATING EVIDENCE. In addition to its refusal of an instruction on evidence of motive as mitigation (see Argument XVIII above). the trial court improperly refused other defense-requested jury instructions on aspects of the case in mitigation of the death penalty: an instruction that mitigating circu~nstances need not be proven beyond a reasonable doubt, and an instruc- tion that evidence of favorable prosecution treatment accorded to an accomplice may be considered in mitigation. As a matter of state law. a criminal defendant is entitled, on request, to jury in- structions which "pinpoint" a theory of the defense. (See People v. Sears, supra, and cas- es cited in Argument XVIII above.) The Sears principle is meant to pinpoint a theory of the defense, as opposed to particular defense evidence. (Ibid.) In addition. as a matter of federal due process, the jury instructions to a penalty phase jury must permit the sentencer to consider all mitigating evidence. (See Lockett v. Ohio, supra. and discussion in Argument XVIII above.) A. Mitigating Circumstances Need Noi Be Proven Beyond a Reasonable Doubt. During the penalty phase trial, on or before October 7, 1998. the defense submitted two almost identical sets of proposed instructions. related solely to the penalty phase. (See discussion in Argument XVIII above.) Each sct of proposed instructions contained a proposed instruction which would have informed the jury. in identical language. that a mitigating circumstance does not need to be proven beyond a reasonable doubt. See latter portion of Defense Special In- struction No. 1 1 at 12 CT 2479. and latter portion of No. 1 1 at 12 CT 2592: The mitigating circumstances that I have read for your consid- erlation] are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a sentence of death in this case. You should pay careful attention to each of these factors. Any one of [ . . . ] them may be sufficient. standing alone to support a decision that death is not the appropriate punishment in this case. But you should not limit your consideration of mitigating circums- tances to these specific factors. You may also consider any other circums- tances relative to the case or to the defendant as shown by the evidence as reasons for not imposing the death penalty. A mitigating - circumstance does not have to be proved beyond a rea- sonable doubt to exist. You must find that a mitigating circumstance exists if there is any substantial evidence to support it. Any mitigating circumstances presented to you may outweigh all the aggravating factors. You are permitted to use mercy sympathy, or sentiment in deciding what weight to give each mitigating factor. (12 C?' 2479. 2592-2593; emphasis added.) In discussing jury instructions. just b e f i x discussing proposed instruction no. 1 1. the trial court rejected defense proposed instruction no. 9"' because it removed any un- animity requirement for mitigating circu~nstances. but did not do the same for aggravat- ing circu~nstances. ( 10 R'I' 24 19-2420.) I'he court then turned to Instruction No. 11. including the proposed instruction on the standard of proof for mitigating evidence. THE COURT: . . . Eleven is objectionable for the same reasons [as no. 91. I t does not mention anything about aggravating. Single aggravating incident may outweigh single mitigating circumstances. There's authority on that. People v. Hines, H-i-n-e-s 1997 case reported at 15 Cal. 4th 997. 1068. MR. SCIANDRA: May I have the cite again? THE COURT: It's 15 Cal. 4th 997 at 1068. It's considered argu- mentative. Number 12. The entire proposed defense instruction no. 1 1 was taken verbatim from an in- struction recounted in People v. Wharton (1991) 53 Cal.3d 522, 600-601 (see defense ci- tation to Wharton at 12 CT 2479): In addition to several other special penalty phase instructions, the court, at defendant's request, informed the jury that "You must find a miti- gating circumstance exists if there is any substantial evidence to support it." [fn. 231 Defendant claims this improperly placed on him the burden of proving the existence of mitigating circumstances by substantial evidence, thereby violating the Eighth Amendment's proscription against limiting the jury's consideration of any relevant mitigating information that may con- I37 "It is not necessary that the jury unani~nously agree that any factor in mitigation exists. 7 Each juror may decide for themselves which mitigating factor exists and the weight to give thereto." ( 12 CT 2477. 259 1 .) vince it to impose a sentence less than death. (BL~stone v. Pennsylvania (1990) 494 U.S . 299. 308: McCleskey v. Kernp ( 1987) 48 1 U.S. 279. 305- 306.) [fn. 231 The entire instruction states: "The mitigating circumstances that I have read for your consideration are given to you merely as exa~nples of some of the factors that you may take into account as reasons for decid- ing not to impose a death sentence in this case. You should pay careful at- tention to each of those factors. Any one of them may be sufficient, stand- ing alone. to support a decision that death is not the appropriate punishment in this case. But you should not limit your consideration o f mitigating cir- cumstances to these specific factors. [para.] You may also consider any other circumstances relating to the case or to the defendant as shown by the evidence as reasons for not imposing the death penalty. [para.] A mitigat- ing circumstance does not have to be proved beyond a reasonable doubt to exist. You must find that a mitigating circu~nstance exists if there is any substantial evidence to support it. [para.] Any mitigating circumstance pre- sented to you may outweigh all the aggravating factors. [para.] You are permitted to use mercy, sympathy, or sentiment in deciding what weight to give each mitigating factor." [end footnote] We find the challenged instruction consistent with Eighth Amend- ment guarantees. - At the heart of defendant's interpretation of "Special In- struction 11" is his assumption that it precludes the jury's consideration of a mitigating circumstance unless he establishes its existence by a certain standard of proof. Interpreting the instructions as a whole and as would a reasonable juror, we find defendant's proposed interpretation is unreasona- ble. The entire special instruction, read in context, is clearly favorable to defendant, informing the jury to give him the benefit of any doubt it may have regarding the appropriateness of the death penalty. In short, we find nothing in the instruction preventing the jury from considering a mitigating circumstance no matter how strong or weak the evidence is. (Emphasis added.) The trial court here relied on the later holding of People v. Hines (1997) 15 Cal.4th 997. In Hines. the defense requested an instruction which enumerated and pin- pointed the evidence which was claimed to be mitigating, including the defendant's age, his mother's alcoholism, his own drug addiction. his remorse, etc. ( 1 5 Cal.4th at 1067, fn. 18.) It was the recounting of this litany of defense mitigating evidence which the Court in Hines found argumentative: "The trial court properly refused to give this proposed in- struction as it was argumentative, that is, 'of such a character as to invite the jury to draw inferences favorable to one of the parties fiom specified iteins of evidence.' (People v. Gordon. supra. 50 Cal.3d at p. 1276: see also People v. Fauber, supra, 2 Cal.4th at pp. 865-866; People v. Cooper, supra, 53 Cal.3d at p. 844.)" (15 Cal.4th at 1067-1068; the proposed instructions in Gordon, Fauber. and Cooper all similarly sought to enumerate and emphasize specific items of defense mitigating evidence.) In contrast, the proposed instruction here did not enumerate the defense mitigating evidence at all. The emphasized language from the proposed instruction would have warned the jury, properly, that the defense mitigating evidence, whatever it may be, need not be proven beyond a reasonable doubt. An instruction on the burden of proof could have been clipped out of the proposed instruction without destroying its integrity. "The trial court must correct defects in prof- fered instructions where the nature of the of the defendant's theory is made clear to it." (People v. Bradv (1987) 190 Cal.App.3d 124, 136; disapproved on other grounds in People v. Farley (1996) 45 Cal.App.4th 1697, 1704.) The proffered instruction here, pinpointing the principle that mitigating evidence need not be proven beyond a reasonable doubt, was a necessary and appropriate means of avoiding what would otherwise be an impediment to proper consideration of the defense case in mitigation. There were substantial factors in mitigation, including appellant's lifetime of hard work and faithful support of his family. The defense proof of mitigating factors should not have been burdened by a standard of proof'beyond a reasonable doubt. 'I'he homicidal incident here arose from a fit of drunkenness, totally out of charac- ter for this defendant. The defense was not required to prove this beyond a reasonable doubt. It was pre-judicial error to refuse the requested instruction on the standard of proof. B. Favorable Prosecution Treatment o f Accomplices. Under Lockett v. Olzio, supra, the jury must be empowered to consider all relevant mitigating evidence offered by the defendant. In some states the appellate court is required to maintain a register of death penalty cases to form a basis for comparison with each new case (intercase review). See Gregg v. Georgia (1976) 428 U.S. 153, 187. California's death penalty statute, which does not provide for intercase proportionality review at an appellate level, is not unconstitutional for that reason. (Pulley v. Harris (1984) 465 U.S . 37, 5 1-54.) At the trial court level there is no likewise no requirement of intercase proportio- nality review. (People v. Lang ( 1989) 49 Cal.3d 99 1. 1043 .)13"n contrast, intracase pro- portionality review may be undertaken on appeal. in this Court's discretion. See People l ix "In support of his argument that trial courts may undertake proportionality review. defendant relies on People v. Leigh (1985) 168 Cal.App.3d 217. But the holding in that case is that trial courts have discretion to determine intracase proportionality -- i.e., to de- termine whether the sentence imposed is proportionate to the individual culpability of the defendant, irrespective of the punishment imposed on others (see People v. Adcox, supra, 47 Cal.3d 207. 274: People v. Dillon (1983) 34 Cal.3d 441, 477-482). Defendant's mo- tion in the trial court did not seek intracase proportionality review." v. Dillon. S L I ~ I - u . In light of this Court's superior experience with a great many death pe- nalty judgments. intracase appellate review is a necessary and proper exercise of this Court's appellate jurisdiction, and should be exercised here. (See Argument XXIl (D) below. and see Ptlccio v. State qf'Flovidn ( 1 997) 70 1 So.2d 858 [on appellate review, im- position of death penalty on only one codefendant is a disproportionate penalty]). There is no impediment to the jury's use of intracase proportionality review as part of the jury's penalty determination. There should have been a specific instruction on intracase proportionality review. There were at least four persons whose role in this offense, and subsequent pu- nishment or lack of punishment, should have been considered by this jury before it im- posed the death penalty. (1 ) Richard Diaz was an accomplice by the terms of the prosecution case i t ~ e 1 f . I ~ ~ By his own testimony, he fired into the Durbin house. (5 RT 1274.) Yet, by the terms of his plea agreement with the prosecution, Diaz pled guilty to accessory. (Ex. 49; 5 RT 1285-1286.) He did not face the death penalty. Although he had not been sentenced at the time of his testimony, he was hoping for a grant of probation. (5 RT 1326, 1336.) (2) Pedro Enriquez Rangel 111, appellant's son and co-defendant, was charged with exactly the same crime. He was the driving forcc in the pursuit of Juan Uribe. Appellant was motivated less by malice and more by a need to protect and defend his son (see Ar- 139 See trial court's guilt phase instruction to the jury: "If the crimes charged in the Information were committed by anyone, the witness Richard Diaz was an accomplice as a matter of law and his testimony is sub-ject to the rule requiring corroboration." (12 CT 2653.) gulnent XVlIl above). and was therethre relatively less culpable than Little Pete. The cases were severed prior to appellant's trial. and appellant's trial was held first. (1 1 CT 1878, 1939.) Appellant's jury therefore could not know of the outcome of his son's trial. However. his jury could conclude that appellant was not as culpablc as his son. (3) Rafael Avila was charged jointly with appellant and his son in the original complaint. ( 1 C'1' 1 .) However, Avila was not arraigned on these charges. According to Richard D i a ~ . Avila was the driver on the night of the fatal shootings. (5 RT 1267.) Since shortly after the shootings Avila had not been seen by his employer or his wife, ex- cept for one brief contact. (5 RT 1205-1207, 6 RT 1450-1452.) Evidently, Rafael Avila had evaded arrest, and was not to be punished for his important role in the killings. (4) Jesse Rangel was the initial suspect in the killings. Cindy Durbin identified a photograph of Jesse Range1 shortly after the killings (6 RT 1395-1397, 1413, 1427), and continued to identify him in police interviews until the preliminary hearing nine months later (6 RT 1397, 1422, 1437. 8 RT 1948). He fled to New Mexico a few days after the killlings. (6 RT 15 19.) As a matter of lingering doubt (see People v. Gay, supra), the jury could rightfully consider that Jesse Range1 may have been one of the perpetrators, yet he was never charged or otherwise punished. It is said that proportionality review, that is review by comparison of the defen- dant's case with all similarly situated defendants convicted of the same criminal viola- tion. is not constitutionally compelled. (United States v. Mitchell (9th Cir. 2007) 502 F.3d 93 1. 980, citing Pullej? v. Harris, supra.) However. that broad statement does not neces- sarily apply where the jury has before it. as here. evidence of the commission of the same crime by multiple persons. Under article I. section 17 of the California Constitution, the state constitutional ban on cruel and unusual punishments. a capital defendant on appeal "is entitled to intra- case review 1i.e. comparison with co-participants] to determine whether the death penalty is disproportionate to his personal culpability." (People v. Williams (1997) 16 Cal.4th 153, 279.) Indeed, the federal death penalty statute contemplates the consideration of precise- ly this sort of evidence by a penalty phase jury. See 18 U.S.C. tj 3592: (a) Mitigating factors. In determining whether a sentence of death is to be imposed on a defendant. the finder of fact shall consider any mitigating fac- tor, including the following: (4) Equally culpable defendants. Another defendant or defendants, equal- ly culpable in the crime, will not be punished by death. (Emphasis added.) The issue here is not whether comparison with the penalties imposed on co- participants constitutionally compels the reduction of a death sentence. (See Getsy v. Mitchell (6th Cir. en banc 2007) 495 F.3d 295.) The issue here is whether a jury may be permitted to consider the penalties imposed on co-participants. Factor (k) has been broadly applied to permit the introduction of virtually any cvidence "which extenuates the gravity of the crime." Punishment, or lack of punishment, rendered to a co- participant has not been held irrelevant to the penalty determination. 'l'reatment of'co-participants is presumably a rele\.ant consideration. although this jury was given no instruction that said so. An instruction directing the jury's attention to the penalties inflicted on co-participants is a proper and necessary subject of jury instruc- tions. and i t is constitutional error to refuse such an instruction. (Lockett v. Ohio, supra.) This jury should have been instructed that it could properly consider the punish- ments. or lack of punishments. received by the co-participants in these killings. Had the jury been properly instructed, appellant would not have received the death penalty. The death judgment must be reversed. XX. THE TRIAL COURT FAILED TO INSTRUCT THE PENALTY PHASE JURY SUA SPONTE ON THE CIRCUMSTANTIAL EVIDENCE RULE. Both the prosecution case in aggravation and the defense case in mitigation relied substantially on circumstantial evidence. In California, all circumstantial evidence is subject to the Circumstantial Evidence Rule. which requires that the jury adopt any rea- sonable interpretation of circumstantial evidence which points to a defendant's inno- cence. The trial court was under a sua sponte duty to instruct on this important principle, the absence of which likely affected the outcome of the penalty trial. The trial court instructed on the Circumstantial Evidence Rule at the guilt phase, but the instruction was not repeated at the penalty phase, and the jury was instructed to disregard the guilt phase instructions. This Court has addressed the trial court's failure to carry forward evidentiary instructions from the guilt phase to the penalty phase. See People v. Carter (2003) 30 Cal. 4th 1 166, 12 1 8- 1222, 122 1, People v. Brasure (2008) 42 Cal.4th 1037, 1073. and People v. Wilson (2008) 43 Cal.4th 1, 28. In Carter, "[wle noted that omission of certain instructions routinely given at the guilt phase might actually ben- efit a capital defendant in the penalty phase because the effect could be, for example, to 'cabin less strictly the jury's consideration of mitigating evidence' or to 'avoid an unfa- vorable focus on the aggravating evidence.' (Id. at p. 1220.) Rather than assume preju- dice or speculate as to the effect of the court's direction. we required the defendant to 'demonstrate that the omission of the evidentiary instructions here resulted in prejudice.' (Ibid.) We found no such demonstration had been made in that case, but cautioned future trial courts not to dispense with evidentiar~ instructions at the penalty phase. (Id. at p. 1222.)" (People v. Brasure, supra, at 1073: emphasis added.) The Circumstantial Evidence Rule. as to evidence in general. was stated in CALJIC 2.01. in effect at the time of appellant's trial."0 As to evidence of a necessary mental state. the rule was stated in CALJIC 2 .02. '~ ' I40 "However. a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circurnstances are not only ( 1 ) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. "Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words. before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. "Also, if the circumstantial evidence [as to any particular count] permits two rea- sonable interpretations, one of which points to the defendant's guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendant's inno- cence, and reject that interpretation that points to [his] [her] guilt. "If, on the other hand. one interpretation of this evidence appears to you to be rea- sonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable." I" "The [specific intent] [or] [and] [mental state] with which an act is done may be shown by the circuinstances surrounding the coininission of the act. However, you may not [find the defendant guilty of the crime charged [in Count[s] , . and 1, [or] [the crime[s] o f . , . which [is a] [are] lesser crime[s]],] [or] [find the allegation to be true,] unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and] [mental state] but (2) cannot be reconciled with any other rational conclusion. "Also. if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its absence. I C on the other hand, one interpretation of the evidence as to the Both of thcse instructions were read at thc guilt phase of the trial. (12 CT 2714, 27 15.) However. at the penalty phase of the trial the jury was instructed to ignore these prior instructions: "l>isrcgard all other instructions given to you in other phases of this trial." (12 C l 2539.) No instructions were read on circumstantial evidence at the penalty phase of the trial. The penalty phase trial relied substantially on circumstantial evidence. In aggravation, a major issue was whether the murders were premeditated. There was evidence of heavy drinking by appellant, so much that he stumbled and fell as he ap- proached the Durbin house. (5 RT 1262- 1264. 1269- 1270.) After the shootings he acci- dentally discharged the .380 twice in Rafael Avila's car. (5 RT 1278.) Intoxication may well have interfered with his ability to premeditate. (See Penal Code tj 190.3 (h): "Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was im- paired as a result of mental disease or defect. or the affects of intoxication.") Impaired capacity was not under consideration at the guilt phase. Reasonable jurors may have had a lingering doubt whether appellant committed premeditated murder under the doctrine of impaired capacity. Determination of an impaired capacity defense hinged entirely on cir- culnstantial evidence. The jury's judgment on impaired capacity would have been sub- stantially affected by the Circumstantial Evidence Rule. had it been applied. [specific intent] [or] [mental state] appears to you to be reasonable and the other interpre- tation to be unreasonable. you must accept the reasonable interpretation and reject the un- reasonable." In mitigation. jurors may have considered whether appellant was motivated by a need to protect his son (see discussion in Argument XVIII above). Motive was not a ne- cessary element for determination at the guilt phase. 'The evidence of motive for the crimes was also cntirely circumstantial. A jury instruction on the Circumstantial Evidence Rule is required as a sua sponte duty of the trial court. (People v. Yrigoven (1955) 45 Cal.2d 46. 49-50.) There is no rea- son why the Rule should not be stated and applied at the penalty phase. where evidence is considered under all the rules of evidence. The Circumstantial Evidence Rule is not intuitively obvious. A reasonable juror could as easily conclude that, given two reasonable interpretations of circumstantial evi- dence, he or she should adopt the interpretation which points to guilt, or to increased pu- nishment. Where so much of the penalty phase determination hung on the interpretation of circumstantial evidence, the absence of these essential instructions prejudiced appel- lant, and reversal is necessary. XXI. THE TRIAL COURT'S FINDING OF PREMEDITATION IN COUNT ONE, IN DENYING THE DEFENSE MOTION T O MODIFY THE DEATH VERDICT, WAS AN ABUSE O F DISCRETION AND A VIOLATION OF DUE PROCESS. As set forth in Argument IV above, the record lacks support for a finding that ap- pellant premeditated the murder of Chuck Durbin (see also Arguments XI11 and XIV). Any evidence of premeditation that can be gleaned from this record should not have pro- vided the basis for a circumstance in aggravation of the death penalty. This record surely provides the least imaginable support for premeditation as a factor in aggravation. Ac- cordingly, the trial court should not have used premeditation as a factor in aggravation. It was an abuse of discretion to use premeditation on Count I as a reason to deny the motion to modify the judgment. and the death judgment must be reversed. Under Penal Code $ 190.4 (e), the trial court is obligated to consider an automatic motion to modify a death penalty verdict. (e) In every case in which the trier of fact has returned a verdict or finding imposing the death penalty. the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11. In ruling on the application, the judge shall review the evidence. consider, take into account, and be guided by the ag- gravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings. The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk's minutes. The denial of the modification of the death penalty verdict pursuant to subdivision (7) of Sec- tion 1181 ['"I shall be revicwcd on the defendant's automatic appeal pur- suant to subdivision (b) of Section 1239. The granting o f the application shall be reviewed on the People's appeal pursuant to paragraph (6). The trial court's proper performance in ruling on the motion for modification is essential to the constitutional functioning of the death penalty statute. Under the Califor- nia death penalty statute. the trier of fact is required to inake specific and affirmative tindings on special circumstances. but is not required to make tindings on aggravating circumstances. ?'his procedure is deemed constitutionally adequate for the requirements of appellate review. but only because the trial court is obligated t o make findings on the relevant aggravating and mitigating circumstances, findings which are then "reviewed on the defendant's automatic appeal." In People v. Fvierson (1979) 25 Cal.3d 142. this Court upheld the death penalty statute, precisely because "at the time of the automatic motion for ~nodification of verdict (tj 190.4, subd. (e)), the trial court must make an independent evaluation of the evidence and state on the record the reasons for its findings." (25 Cal.3d at p. 179.) These protec- tions, it was held. constitute "adequate .. . safeguards for assuring careful appellate re- view." (lbid.; People v. Diaz (1992) 3 Cal.4th 495, 571, 572.) It follows that the trial court's findings under section 190.4 (e) are subject to ap- pellate review. including review for sufficiency of the evidence and abuse of discretion. Any failure in this constitutionally mandated procedure is a denial of due process guaran- teed by the United States Constitution. (Bonin v. Calderon (9th Cir. 1995) 59 F.3d 815. 142 Penal Code # 1 18 1 authorizes the grant of a new trial. Subdivision (7) authorizes the trial court to reduce the punishment ordered by a jury verdict. 842; Hicks ~ j . Oklcrhonzu (1980) 447 I1.S. 343. 346; Evitts v. Lzlce,~? (1985) 469 U.S. 387. 401; Clzarnbers v. Bower-sox (8th Cir. 1998) 157 F.3d 560.) The evidence concerning the element of premeditation is su~nlnarized in Argument IV above. As noted there, the evidence is insufficient to sustain a conviction for preme- ditated murder in the killing of Chuck Durbin, Count One. On January 29. 1999, defense counsel filed an Application for Modification of Verdict Imposing Death Pursuant to California Penal Code tj 1181 (7). (13 CT 2855.) Despite the lack of evidence. in denying the modification motion'" the trial court made unsupported findings of premeditation. . . . For the purpose of clarifying the court's reasoning, this will be a recital of the principal factors which most powerfully inform and influence the decision at hand. The Court finds that the first degree murder of Chuck Durbin was an intentional killing personally committed by the defendant and the court fur- ther finds that the murder of Chuck Durbin was premeditated, deliberate, willful, and committed with malice aforethought. ( 1 1 RT 2644; emphasis added.) . . . [Tlhe defendant brutally and in cold blood murdered Chuck Dur- bin. Mr. Durbin had been seriously wounded and posed no threat to the de- fendant when the defendant killed him by shooting him in the head at close range. . . 143 Inexplicably. the defense modification motion made no reference to the lack of premeditation in the shooting of Chuck Durbin. (1 3 CT 2855-2859.) In penalty phase ar- gument the prosecutor argued that the motive for the shootings was "respect." (10 RT 2549.) Nevertheless, it was argued (in apparent aggravation of the penalty) that appellant did not know Chuck Durbin, and Durbin was not "an object of his hate." (10 RT 2547.) In penalty phase argument to the jury. defense counsel made no reference to the absence of premeditation as to Count One. (10 RT 2553-2572.) ( 1 1 R'T 2645.) l'he trial court erred by finding premeditation on this record, and by basing the death penalty verdict on premeditation. Any claim with respect to the denial of a motion to modify penalty is to be consi- dered by this Court on automatic appeal. (People v. Ma*vfield (1993) 5 Cal.4th 220. 224- 225.) Reversal is required if there is a "reasonable possibility" that a trial court error af- fected the decision to deny the motion. (People v. Benson (1990) 52 Cal.3d 754, 812; People v. Frievson (1 991 ) 53 Cal.3d 730. 75 1.) The trial court certainly erred in its characterization of the shooting of Chuck Dur- bin. The trial court concluded that "Mr. Durbin had been seriously wounded and posed no threat to the defendant when the defendant killed him by shooting him in the head at close range." ( I 1 RT 2645.) But the record does not show that Durbin was disabled by the .22 shots; according to Richard Diaz, Durbin was standing up when appellant shot him, and appellant's statement quoted by Diaz indicated that he thought he was under at- tack by Durbin. There is no evidence that Durbin was prone or disabled when any of the large caliber shots were fired. Most important. there was a lack of evidence of premeditation. Appellant did not even know that Chuck Durbin existed before he entered the Durbin house. Whatever ma- lice he may have had toward Juan Uribe, it did not extend to the occupants of the house or to Durbin himself. The element of premeditation was unsupported on this record. There is a reasonable possibility that a different result could be reached in the ab- sence of'the premeditation finding. Appellant's role in the shooting of Juan Uribe cer- tainly did not justify the death penalty: under the prosecution's theory of the case, appel- lant thought that he was aiding and protecting his son and. however wrongheadedly, help- ing to exact justified retaliation for the shooting of Little Pete. Besides, he was not the perpetrator of the Uribe shooting under the prosecutor's own theory of the case."' This death judgment was certainly based primarily on the shooting of Chuck Dur- bin. which was committed personally by appellant according to the guilt phase verdict. The presence or absence of premeditation has everything to do with the justification for the death penalty. If there was nothing more than a brief opportunity for reflection, and reason to think that the defendant's capacity to deliberate was impaired,"' the death pe- nalty was not justified on this record. No reasonable jurist would impose it, and no ap- pellate tribunal should affirm it. Premeditation on this record, if it exists, is of a highly technical nature: at a mini- mum, there was a lack of planning or motive in the killing of Chuck Durbin. The inten- tion to kill, based on an awareness of the existence of Chuck Durbin, could not have pro- 134 See In re Hardy (2007) 41 Cal.4th 977, 982-983: "[Tlhe allegations of third party culpability, as sustained by the referee, require we vacate the penalty judgment because, had the jury entertained a reasonable doubt that petitioner was the actual killer and con- cluded he was merely a coconspirator, there is a reasonable probability it would have re- turned a sentence of life instead of death.. . ." I45 See Penal Code 9 190.3 (h): "Whether or not at the time of the offense the capaci- ty of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the af- fects of intoxication." ceeded thc shooting by Inore than a feu seconds. Without premeditation as a factor in aggravation. the death penalty should not have been imposed. It was an abuse of discre- tion and a denial of due process for the trial court to confirm the jury's death judgment on the basis of premeditation. and the death judgment must be reversed. XXII. MANY FEATURES OF THE CALIFORNIA CAPITAL SENTENCING SCHEME, AS INTERPRETED AND APPLIED BY THIS COURT, VIOLATE THE FEDERAL CONSTITUTION AND INTERNATIIONAL NORMS. The following challenges to the California death penalty sentencing scheme have been addressed. at least in part, by this Court in past decisions. They are summarized in this Argument because they retain validity under the federal constitution. because there is always reason to believe that this Court may change its position, and because lengthy briefing on each of them would not be a wise expenditure of court resources. Neverthe- less, appellant does not intend to present a "perfunctory" argument (People v. Roberts (1992) 2 Cal.4th 271, 340-341) and asks that each of the following challenges be se- riously considered in the context of the present case and recent authority. As held by this Court in People v. Schmeck (2005) 37 Cal.4th 240, 304, "... routine or generic claims that we repeatedly have rejected, and which are presented to this court primarily to pre- serve them for review by the federal courts, have been and will be deemed by this court to be fairly presented so long as the claim is stated in a straightforward manner accompa- nied by a brief argument. Such a claim is fairly presented even when the defendant does no more than (i) identi& the claim in the context of the facts, (ii) note that we previously have re-jected the same or a similar claim in a prior decision. and (iii) ask us to reconsider that decision." A. Lack c?f' Written Fi t~ding~. The failure to require written findings on aggravating factors which the jury relied upon violated appellant's constitutional right to meaningful appellate review. (California v. Brown (1987) 479 IJ.S. 538. 543: G're'pg v. Georgia (1976) 428 U.S. 153, 195.) As noted throughout the penalty phase arguments in this Brief, the jury was invited to im- pose the death penalty on inapplicable and improper sentencing t'actors. In the context of other arguments set forth above. respondent [nay argue that it requires speculation to say what evidence the jury used to base its verdict. Written findings would have alleviated this uncertainty, and it was therefore a constitutional violation to fail to require them. Written findings are a necessary part of the jury's penalty determination, guaran- teed under the Sixth and Fourteenth Amendments. (Ring v. Arizona (2002) 536 U.S. 584.) B. Failure to Apply Beyond a Reasonable Doubt to Sentencing Decision. In People v. Fairbank (1997) 16 Cal.4th 1223, 1255, this Court said that "neither the federal nor the state Constitution requires the jury to agree unanimously as to aggra- vating factors, or to find beyond a reasonable doubt that aggravating factors exist, [or] that they outweigh mitigating factors . . . ." But these interpretations have been rejected by the U.S. Supreme Court's decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 and Ring v. Arizona (2002) 536 U.S. 584. The failure to require that all aggravating factors be proved beyond a reasonable doubt, that aggravation must be weightier than mitigation beyond a reasonable doubt, and that death must be tound to be the appropriate penalty beyond a reasonable doubt. vi- olates federal principles of due process (see S a n t o s ~ ~ v. K~anzcr (1982) 455 U.S. 745, 754-767; In re Winship (1970) 397 U.S. 358). equal protection. the constitutional re- quirement of heightened reliability in the death determination (Ford v. Washington ( 1986) 477 U.S. 399. 4 14; Beck v. Alabama ( 1980) 447 1J.S. 625). and the right to a jury determination of penalty. (Ring v. Arizona, szLpr8a.) C. Lack of Jury Unanimity. Under the California statutory scheme, there is not only no requirement of written findings, and no requirement that the jury apply the beyond-a-reasonable-doubt standard to the penalty decision, but there is no requirement that the jury be unanimous on its sen- tencing factors. even on the elements of the committing offense and the existence of other criminal conduct. In Richardson v. United States (1999) 526 U.S. 813, 815-816, the United States Supreme Court interpreted 21 U.S.C. 5 848(a). and held that the jury must unanimously agree on which three drug violations constituted the "'continuing series of violations"' necessary for a continuing criminal enterprise [CCE] conviction. Jury un- animity is also part of the Sixth Amendment guarantee set forth in Ring v. Arizona, supra. D. Lack of Proportionality. California has no procedure to compare death penalty cases statewide to achieve proportionality in sentencing. (See Argument XIX (B) above at p. 29 1 .) Yet, 29 of the 34 states that have reinstated capital punishment require comparative. or "inter-case," appel- late sentence review. The lack of any requirement of inter-case proportionality violated constitutional requirements that the death penalty not be imposed arbitrarily or capriciously (Gregg v. Georgia ( 1976) 428 U.S. 153). that all potential mitigating factors be considered by the sentencer. and that a death-sentenced defendant receive meaningful appellate review. (See Parker v. Dugger (1991) 498 U.S. 308, 3 16.)'"" See the concurring opinion of Jus- tice Mosk in People v. Hines ( 1997) 15 Cal.4th 997. 108 1. in which he suggested that this Court has the inherent authority to modify a death judgment in order to secure uniformi- ty. E. Vague Standards. The inclusion in the list of potential mitigating factors of such adjectives as "ex- treme" (see CALJIC 8.85. subds. (d) and (g)) and "substantial" (subd. (g)) acted as bar- riers to the consideration of proper mitigating evidence. (Mills v. Maryland (1988) 486 U.S. 367; Lockett v. Ohio (1978) 438 U.S. 586.) The use of this wording rendered those factors unconstitutionally vague, arbitrary, capricious, and incapable of principled appli- cation. (Maynard v. Cartwright (1988) 486 U.S. 356; Godfrev v. Georgia (1980) 446 U.S. 420; Stringer v. Black (1992) 503 U.S. 222.) 1 J h See 112 re: Proportionali~ Review Project (N.J. 1999) 735 A.2d 528 ["When the United States Supreme Court restored the constitutionality of the death penalty, it im- posed a concomitant obligation on states to provide 'the turther safeguard of meaningful appellate review' of every death sentence. Gregg v. Georgia, 428 U.S. 153 (1976)."] F. Luck y f 'Nar-r-otzling Special C'ir-cumsrnr~ces. The statutory scheme under which appellant was sentenced contains so many spe- cial circumstances that it fails to perform a narrowing function. Indeed the expressed in- tent of the drafters of the death penalty initiative language was to make the death penalty applicable to all murderers. And if you were to be killed on your way home tonight simply be- cause the murderer was high on dope and wanted the thrill, the criminal would not receive the death penalty. Why? Because the Legislature's weak death penalty law does not apply to every murderer. Proposition 7 would. (1978 Voter's Pamphlet, p. 34; emphasis added.) Almost all felony murders, like the present case. give rise to a special circums- tance for the underlying felony. First degree murders which are not established by the felony murder doctrine are necessarily established through premeditation and delibera- tion. Premeditated and deliberate murder may. in almost every case, be pled as lying-in- wait murder. (See dissenting opinion of Mosk, J., in People v. Morales (1989) 48 Cal.3d 527, 575.) Lying in wait is a special circumstance, and any premeditatedllying in wait murder can therefore be charged as special circumstance murder. In addition, the electo- rate has expanded to 32 the number of special circumstances qualifying for the death pe- nalty, and includes aiders and abettors. (Penal Code sec. 190.2.) Thus. with very few ex- ceptions, any first degree murder may be charged as special circumstance murder. For these reasons, the California statute fails the requirement that the statute must, by rational and ob-jective criteria, narrow the group of murderers upon whom the ultimate penalty ma), bc imposed. (McC'lcskg, 11. k'ernp (1987) 381 1J.S. 279. 305; Zant v. Ste- phens ( 1983) 462 1J.S. 862. 878.) G. Prosccutorial Discretiori. I'his Court has upheld thc authority of thc District Attorney to decide whether or not to include special circuinstance allegations in an accusatory pleading, as well as whether or not the death penalty will be sought if the special circumstances are found to be true. (See People v. Keenan (1988) 46 Cal.3d 478, 505.) There is no statewide stan- dard by which the decision to seek the death penalty may be reviewed, there is no over- sight agency to insure uniformity. and there is no authority accorded the trial court to re- view the death decision for abuse of discretion. Therefore, there is a substantial risk of county-by-county arbitrariness, in violation of the Equal Protection Clause. (See Bush v. Gore (2000) 53 1 U.S. 98.) As noted above, the death penalty may be sought in almost any first degree murder case. The decision to seek the death penalty under California law will inevitably be in- fluenced by irrelevant considerations such as the size of the county budget, the notoriety of the victim, the race of the defendant. and the proximity of the next general election. These factors are particularly exaggerated where, as here. the prosecution is personally undertaken by an elected official. (See Maynard v. Cartwright ( 1 988) 486 U.S. 356, 363 [discussing the holding in Godfie?, v. Georgia (1980) 446 U.S. 4201. and see dissenting opinion of Justice Broussard in People v. Adcox ( 1988) 47 Cal.3d 207. 275-276.) In People v. k-c~irbank ( 1 997) 16 Cal.4th 1223. 1255. this Court said that "neither the federal nor the state Constitution requires thc jury to agree unanimously as to aggra- vating factors. or to find beyond a reasonable doubt that aggravating factors exist, [or] that they outweigh mitigating fhctors . . ." But this pronouncement has been called into question by the llnited States Supreme Court's decisions in Apprendi v. New Jersey (2000) 530 IJ.S. 466; Ring v. Arizona (2002) 536 U.S. 584; Blakely v. Washington (2004) 542 U.S. 296: and C'unninghanz v. California (2007) 127 S.Ct. 856, and should now be reconsidered. Such unprincipled. broad discretion is contrary to the principled decision-making mandated by Furman v. Georgia ( 1972) 408 U.S. 238. H. International Law. The United States stands as one of a small number of nations that regularly uses the death penalty as a form of punishment. (See Soering v. United Kingdom: Whether the Continued Use of the Death Penalty in the United States Contradicts International Think- ing (1990) 16 Crim. and Civ. Confinement 339, 366.) The nonuse of the death penalty, or its limitation to "exceptional crimes such as treason" - as opposed to its use as regular punishment - is particularly uniform in the nations of Western Europe. (See, e.g., Stan- ford v. Kentucky (1989) 492 U.S. 361. 389 [dis. opn. of Brennan, J.]; Thompson v. Okla- homa (1 988) 487 U.S. 8 15. 830 [plur. opn. of Stevens. J.].) Indeed. all nations of West- ern Europe have now abolished the death penalty. (Amnesty International. "The Death Penalty: List of' Abolitionist and Retcntionist Countries" (Nov. 24. 2006). on Amnesty International websitc [\V\VM .amnesty.org].) Although this country is not bound by the laws of any other sovereignty in its ad- ~ninistration of our criminal justice system. it has relied from its beginning on the cus- toms and practices of other parts of the world to inform our understanding. "When the United States became an independent nation. they became. to use the language of Chan- cellor Kent. 'subject to that system of rules which reason. morality, and custom had es- tablished among the civilized nations of Europe as their public law."' (1 Kent's Commen- taries 1, quoted in Miller v. United States ( 187 1 ) 78 U.S. 268, 3 15 [dis. opn. of Field, J.]; Hilton v. Guvot (1895) 159 U . S . 113, 227; Martin v. Waddell's Lessee (1842) 41 U.S. 367,409.) For the foregoing reasons, appellant's death judgment was reached through an un- constitutional statutory process, and the death penalty must be set aside. CONCLUSION For the foregoing reasons, appellant's conviction must be reversed. In the alterna- tive. the death penalty judgment must be reversed. or the matter must be remanded for further proceedings. Date: June 12. 2008 Respectfully submitted. CHARLES M. BONNEAU Attorney for Appellant STATEMENT OF COMPLIANCE Pursuant to Rule 8.630 (b). Cal. Rules of Court, the foregoing Brief is in Times New Roman font, 13-point, and contains a word count of 78,000. Date: June 12, 2008 CHARLES M. BONNEAU Attorney for Appellant CASE NAME: PEOPLE v. RANGEL CASE NO.: SO76785 COURT: SUPREME COURT O F CALIFORNIA I declare that I am e~nploycd in the County of Sacramento, California. I arn over the age of eighteen years and not a party to the within cause: my business address is 33 1 J Street, Suite 200. Sacraincnto, CA 958 14. On the dated below I served the APPELLANT'S OPENING BRIEF on the parties in said cause. by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sacramento, California addressed as follows: LUKE HIKEN California Appellate Project 101 Second Street Ste. 600 San Francisco, CA 94105 PEDKO RANGEL, Jr. P-28501 San Quentin State Prison San Quentin, CA 94974 Dep. Atty. Gen. BRIAN ALVAREZ 2550 Mariposa Mall, Rm. 5090 Fresno, CA 93721 [Attorney for Respondent] MADERA CO. SUPERIOR CT. 209 W. Yosemite Ave. Madera, CA 93637 MADERA CO. DIST. ATTY. 209 W. Yosemite Ave. Madera, CA 93637 There is delivery by United States mail at each of the places so addressed, or there is regular cominunication by mail between the place of nailing and each of the places so addressed. I declare under penalty of perjury under the laws of the State of California that the foregoing is truc and correct. and that this declaration was executed on . at Sacramento. California.
