PEOPLE v. RANGEL (PEDRO)

Appellant’s Reply Brief

Cal.December 30, 2009

SUPREME COURT OF THE STATE DF CALIPORATA : GOTHTRS JE CALIFORNIA “ PRET, APPELLANTS REPLY BRIEF (APTOMATIO APPEALS TABLE OF CONTENTS ARGUMENT ooo.cececceccesseeesenesseessesesssesessacsecssessessscsesssessecsssssscausaevavieeaessetarensens 3 Jury Selection I. APPELLANT WAS DENIED THE RIGHT TO A JURY DRAWN FROM A REPRESENTATIVE CROSS-SECTION OF THE COMMUNITY, BY THE SELECTION OF JURORS IN ORDER ACCORDING TO THEIR APPEARANCE ON THE FIRST PANELS OF PROSPECTIVE JURORS.00... cecccceccscscceseeseeseescesecesscescnssesecacsesetssesesessees 3 Il. APPELLANT WAS DENIED DUE PROCESSBY THETRIAL 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... .ccccccccccccsecseeseesssssscssccsccassecsecassarsesatacsacseses 12 I. 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........ 15 Guilt Phase Evidence IV. THE RECORD CONTAINS INSUFFICIENT EVIDENCE OF PREMEDIATION TO SUPPORT THE CONVICTION ON COUNTI, MURDER OF CHUCK DURBIN.......cccccesssescsssscscscssessssssesesaceacssatsesuacsevecaes 22 V. THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT THE FINDING OF PERSONAL USE OF A FIREARM AS TO COUNT H, MURDER OF JUAN URIBE.0000.00... cccecccccccsesceseesesssssceseseees 27 VI. APPELLANT WAS DENIED THE’ RIGHT TO CONFRONTATION BY THE ADMISSION OF OUT-OF-COURT STATEMENTS AGAINST PENAL INTEREST OF HIS SON AND CO-DEFENDANT, PEDRO RANGEL UI, THROUGH THE TESTIMONY OF ANOTHER SUSPECT, JESSE RANGEL, AND BY THE USE OF AN OUT-OF-COURT STATEMENT OF HIS WIFE, MARY RANGEL, INTRODUCED AS AN ADOPTIVE ADMISSION THROUGH THE TESTIMONY OF JESSE’S WIFE ERICA RANGEL. .....ccceecceescccesceceeeneeeeesteseneeeeeeeesesseeeeseesseeecnseeeeesseesesaeeseseenesetesersaeaees 29 Guilt Phase Jury Instructions VIL. 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........... 37 VIII. THE TRIAL COURT FAILED TO INSTRUCT SUA SPONTE ON THE LESSER INCLUDED OFFENSES OF VOLUNTARY MANSLAUGHTER AND INVOLUNTARY MANSLAUGHTG-ER.............. 4} IX. THE TRIAL COURT FAILED TO INSTRUCT SUA SPONTE ON THE PRINCIPLES OF ACCOMPLICE TESTIMONY, AS APPLIED TO THE OUT-OF-COURT STATEMENTS OF APPELLANT’S SON AND CO-DEFENDANTo...ceceeceesssenesseeeseeeseenees 48 X. THE CONVICTION ON COUNT TWO, MURDER OF JUAN URIBE, MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO READ A JURY INSTRUCTION ON THE EFFECT OF VOLUNTARY INTOXICATION ON THE ELEMENT OF SPECIFIC INTENT TO AID AND ABET. 2...cece cceesttcceeseneeeeeseeeseesneseeesseseteesseseeeeens 52 XI. THE TRIAL COURT ERRED BY FAILING TO CONSIDER A JURY INSTRUCTION ON ACCESSORY AS A LESSER-RELATED OFFENSE.000... ccceccccecceesseeecsneeessseseseeesseseesseseeseseeeessseeesessaesensesseessaeeesesensaeees 57 ii Guilt Phase Prosecution Misconduct 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. .....ccccccccceccesceseceeceeceesenseeseeaes 74 XH. THE PROSECUTOR COMMITTED MISCONDUCT BY ARGUING TO THE JURY THAT PREMEDITATED MURDERIS ESTABLISHED MERELY BY EVIDENCE OF AN INTENT TO KILL. 78 XIV. THE PROSECUTOR COMMITTED MISCONDUCT BY ARGUING TO THE JURY THAT THE TESTIMONY OF RICHARD DIAZ, AN ACCOMPLICE, COULD BE CORROBORATED BY THE TESTIMONY OF JESSE RANGEL, ANOTHER ACCOMPLICE................ 79 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 TESTIMONYIN SUPPORT OF THE DEATH PENALTY.....c.ccccccccsscseseseees 83 XVI. EVIDENCE WAS IMPROPERLY INTRODUCED OF THE DEATH OF CHUCK DURBIN’S DAUGHTER NATASHA AND THE AUTISM OF HIS SON BRETT, WITHOUT FOUNDATIONAL EVIDENCE THAT THESE CIRCUMSTANCES WERE RELATED TO DURBIN’S DEATH... eeeccceessessessesessescsscsssssvscsssascsssassesesasatsaavstvavsceveces 90 XVII. APPELLANT WAS DENIED THE CONSTITUTIONAL RIGHT TO CONFRONTATION BY THE USE IN EVIDENCE OF A STATEMENT TAKEN FROM NATASHA DURBIN.......cccccesescssececcseseseees 94 ili Penalty Phase Jury Instructions XVIII. THE TRIAL COURT ERRONEOUSLY REFUSED REQUESTED PENALTY PHASE INSTRUCTIONS THAT WOULD HAVE INCLUDED THE MOTIVATION FOR THE KILLING OF JUAN URIBE AMONG MITIGATING FACTORS. ........0cceccceceeeeeeteee 10] XIX. THE TRIAL COURT IMPROPERLY REFUSED DEFENSE- REQUESTED PENALTY PHASE INSTRUCTIONS ON’ THE ASSESSMENTOF MITIGATING EVIDENCE...00... 0.0 ceeceecceeetesseeeeeereees 106 XX, THE TRIAL COURT FAILED TO INSTRUCT THE PENALTY PHASE JURY SUA SPONTE ON THE CIRCUMSTANTIAL EVIDENCE RULEQ.u.eeecere eeteeeterseeeeesnees 109 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.......eee 112 XXII. MANY FEATURES OF THE CALIFORNIA CAPITAL SENTENCING SCHEME, AS INTERPRETED AND APPLIED BY THIS COURT, VIOLATE THE FEDERAL CONSTITUTION AND INTERNATITONAL NORMS. 0.00... leec ccc ceceeeeececessecseesessereseeeeseneseaeeeeneaee 114 CONCLUSIONooeeecccccseeceeneeeeenesseeseeesssnesecssseseeeeseeseeeussseseessaeeeeesaseeaeeeeeey 115 CERTIFICATE OF LENGTH ou...cee eccssccesseeessseeeesscessesseeeeesseeecseeeessseneesenses 115 iv TABLE OF AUTHORITIES FEDERAL CASES Apprendi v. New Jersey (2000) 530 U.S. 466 woo... ceeccecceccccsscccceeececcssesececeteceees 96 Batson v. Kentucky (1986) 476 U.S. 79 vocccccccccsscscssscescsssesscrsssccvssecsseesessassatesssscesees 8 Beck v. Alabama (1980) 447 U.S. 625 ccceccccccccscscccesessescssusssvessesescsessesecsevstenssees 57 Blakely v. Washington (2004) 542 U.S. 296 w..ccecccccccccsscsssssssecessessssssecsssecstesseseeees 96 Brown v. Payton (2005) 544 U.S. 133 viceccccccccscsescssesessesessceeesseenene 39, 54, 76, 107 Chapmanv. California (1967) 386 U.S. 18 vccccccccscccssssescsssscssssestscesssesctsvsssecsssesees 46 Coolidge v. New Hampshire (1971) 403 U.S. 443 vcecccscesccsessesecscsecsseseeseess 63 Crawford v. Washington (2004) 541 U.S. 36 ....cccecceccscessescseecesesecsecsecesssecees passim Davis v. Washington (2006) 547 U.S. 813 .ccccccccccssssssccssesssceteceressscsecsacsecseceess 97, 99 Duncan v. Ornoski (9th Cir. 2008) 528 F.3d 1222 vooccccccccecccsssccscsscssesesesceseeees 30 Duren v. Missouri (1979) 439 U.S. 357 v.cccccccccccscsssesssecesceseetsessessscesevecesseasasees 7, 10 Ford v. Georgia (1991) 498 U.S. 411 ccccccececsscescescsscessessesssesessstsssestesteseecsecsees 5 Gregg v. Georgia (1976) 428 U.S. 153 ..ececccccececsscscsscssescssseessscessscsscssscssesetseees 108 Lilly v. Virginia (1999) 527 U.S. 116 ..cccccccccccssssescssestssscescesseeacsecseesesssesesessseeecees 50 Lockett v. Ohio (1978) 438 U.S. 586 ...ccccccscccsssessssessscsssscseescssssssessesassesavevssestesesees 96 Neder v. United States (1999) 527 U.S. cecccccccsccssssssssssssessesssesaceessseacsessesssssesseesens 46 Ohio v. Roberts (1980) 448 U.S. 46 vo.cccccccccscscscssssessscesssesctsssassesstscsesesecess 32, 34 Ohio v. Roberts (1980) 448 U.S. 56 v.ccccscccscscssssssesesessesesevesecsesesesacsssaevevsssstevevees 94 Palko v. Connecticut (1937) 302 U.S. 319 ..cccecccccsesscescesscssessesscessscssssceseececeeceee. 96 Parker v. Dugger (1991) 498 U.S. 308 vccccccccsccssssssesssscecsecsseetsecacsesessvseseseseees 108 Penry v. Johnson (2001) 532 U.S. 782 w.eccccccteccscscsscssscssssssesseesssssssacseeavavsvscseseees 103 Pointer v. Texas (1965) 380 U.S. 400 .....ce cccccessceseeeceeeeeeeeeeceeeeneneeeeeeesersseeeeeess 95 Porter v. McCollum (2009) 130 S.Ct. 447 ooo eeceeeeeeeeeeeeeetenseeesseennes 88, 100, 104 Proffitt v. Wainwright (1\th Cir. 1982) 685 F.2d 1227eeeeee ceeeeee eens 96 Ring v. Arizona (2002) 536 U.S. 584eeecscecceeeeneeeeeeneeeeeeeneeeesesteseeeneneaeeeenegs 96 Schad v. Arizona (1991) 501 U.S. 624 oo. cecccccccesscneceseseeeceeeeaeeeeseeneeeeneeeneeee 44,57 Serena v. Mock (9th Cir. 2005) 547 F.3d LOS 1 oo... cccceccccccessesneceeeeeseneeeceeeeeeeeees 10 Taylor v. Louisiana (1975) 419 Us. 522eeeececceeseetenaneeseaneeeeeeeeeerseseeeeesenees 3,7 Taylor v. Workman (10th Cir. 2009) 554 F.3d 879... ccceeccescceeeteeseeeeeteeeeeeenens 4] Trevino v. Texas (1992) 503 U.S. 562... cccccccccccssssesseeceeeeceenteeeeeeesteeeeseaeeeeetensanea 5 U.S. v. Mussare (3d Cir. 2005) 405 F.3d 161 oo... eeecceeeseeeceeeseneeeeeeeeeseeeees 30, 51 United States v. Arnold (6th Cir. en banc 2007) 486 F.3d 177 oo... eeeseeeeeneees 99 United States v. Begay (9th Cir. 2009) 567 F.3d 540 oo... eececeeeeneeeeeseensneeeeees 23 United States v. Booker (2005) 543 U.S. 220 weccccccccccccccccecceceeeeecaeeaaenaaseeeeeeeeeeeees 96 United States v. Fields (Sth Cir. 2007) 483 F.3d 313 oeeeeseeeeeeteeeees 94, 95, 96 United States v. Mills (C.D.Cal. 2006) 446 F.Supp.2d 1115 oo.eeeeeeeeees 96 United States v. Rodriguez-Lara (9th Cir. 2005) 421 F.3d 932.0... eeceeeeseeeeeeees 10 United States v. Sanchez-Lopez (9th Cir. 1989) 879 F.2d 541 oo... eee eeeeeeseeeeeeeees 10 Wainwright v. Witt (1985) 469 U.S. 412... cccccceeeeseneeeeeenateceteeeeeteaee 12, 13, 17 Williams v. New York (1949) 337 U.S. 241 wo..ccccccccccsssscstceeeeeeeeeeeeessesseeees 94, 95 Williams v. Taylor (2000) 529 U.S. 420 .....ccccccccccsssssceceeecesenseecesessseeeeeesseeeseeenaes 15 Winzer v. Hall (9th Cir. 2007) 494 F.3d 1192... eecceeesneeeeneeceeeeesaeerseeeseseeneens 98 Woodson v. North Carolina (1976) 428 U.S. 280... .cccccccccccccceeeeeseeeeeseaeeeeseseeseanen 96 Yeager v. United States (2009) 129 S.Ct. 2360.0... .ccccceccssnsecceeeeeeeneeeeestneeesenenees 67 vi CALIFORNIA CASES Dix v. Superior Court (1991) 53 Cal.3d 442... .icccieccccseccccecesseseecsecessessseeesseceens 59 Edsel P. v. Superior Court (1985) 165 Cal.App.3d 763 ....ccccccccccccecccsesesscsceseesseees 64 Esteybar v. Municipal Court (1971) 5 Cal.3d 119 .o.ccecccccecsccsscessessesesecseeees 65, 69 In re Charlisse C. (2008) 45 Cal.4th 145 occ cccccccccscsscsssccseceeccesessesescsecssersees 92 In re Samuel V. (1990) 225 Cal.App.3d 511 ..cccccccccecesesssecsseessesscsetssscseeseeseseeees 4 Manduley v. Superior Court (2002) 27 Cal.4th 537 .occcccccccceeecesscessesesecseeees 63, 65 Miller v. Municipal Court (1943) 22 Cal.2d 818 v.o.ccccccccccccssccsececeesesssssseccacsseaseees 60 Miyamoto v. Department ofMotor Vehicles (2009) 176 Cal.App.4th 1210.......... 92 Morales v. Superior Court (1979) 99 Cal.App.3d 283 wcccccccccccescccesesescesssecseseces 88 People v. Abilez (2007) 41 Cal4th 472 .0....ccccccccccsscscesecssssscssceecsecseestscscssesecseeaees 44 People v. Adams (1974) 43 Cal.App.3d 697 .....ccccccccccscssesececeseessessesscstsessseseesseese 59 People v. Anderson (1968) 70 Cal.2d 15 vocccccccecccccescsescesssccssecsccssceecssseeceaseeeeees 24 People v. Avila (2009) 46 Cal.4th 680 o.....ccccecccccscsscsscssssseessesseessssescecsecsees 43,45 People v. Babbitt (1988) 45 Cal.3d 660 ......cceccccccscsscsssssssececescsscescssessesssesseesees 110 People v. Baker (1954) 42 Cal.2d 550 wo...ccccccccsssssssescescssssscescesseseeecstessscsesesseeseess 53 People v. Barnett (1998) 17 Cal.4th 1044.0...ccc ccecesecessesssessecesessecscceveaseeeees 103 People v. Barton (1995) 12 Cal4th 186.......ccccccccccsccsssstscescsecseeseatscscsevsssecseees 68 People v. Belton (1979) 23 Cal.3d 516 w...ccccccssccssccscsscsscsssssessescsecssesssacscssesvssseseesees 79 People v. Birks (1998) 19 Cal.4th 108 w.....cccccccccecescesecestssesssssecsesecenseses passim People v. Black (2007) 41 Cal.4th 799... ..ccccccccccscscsscsssssssssscesecsceessesacscstsavsceseaseees 5 People v. Bland (2002) 28 Cal4th 313 .....cccccccscccccssessesssscceceecsessecseevecseseeseseesees 22 People v. Blankenship (1985) 167 Cal.App.3d 840 ....cccccccecssscesessessecessseees 33, 34 Vii People v. Bolin (1998) 18 Cal.4th 297 ...ccccccssssssssssesssesessseessssesssseesessseessesseeee 13, 37 People v. Boyette (2002) 29 Cal. 4th 381eescceeesnseeeeesereeesseesereeenes 86, 87 People v. Brady (1987) 190 Cal.App.3d 124 oo.eeseeece cece seeeecneeesenenseeeas 107 People v. Breverman (1998) 19 Cal.4th 142oeeee eres 42, 46, 66, 69 People v. Brown (2003) 31 Cal.4th 518 ooeeeccceeeeereeeeeeeeeeeneeneneae 13, 49, 50 People v. Burgener (1986) 41 Cal.3d 505.0... ccceeeseeeeeeeeteeeeeesesseeeesessasseeeees 17 People v. Cage (2007) 40 Cal4th 965 ooo.eeeesseeceeeseeeeeeeeeesatesesssessseeesnnees 31, 32 People v. Castillo (1997) 16 Cal.4th 1009 oo.eeccsceeeceessseeceeseeeseneeesseeeeenee 53 People v. Castorena (1996) 47 Cal.App.4th LOS] oo. eeessceeesseessneeeeeeceseetneeenees 18 People v. Coffman and Marlow (2004) 34 Cal.4th 1 oo. eeeecseceseeeeseeeeenees 49, 50 People v. Cooper (1991) 53 Cal.3d 771oeeeeececeeescccesssneeeeeeseeescesssesessessesesenses 110 People v. Corella (2004) 122 Cal-App.4th 461.0...eeeecsesseeeeesseeessneseneesnsnaes 32 People v. Cottle (2006) 39 Cal.4th 246 0... eeessceceesenccececenseneeeenseeseseaeerseeesaees 20 People v. Crandell (1988) 46 Cal.3d 833 0.0... cecceecsescccceecesseeeeeneceeeeeeeeneeesensareseanes 37 People v. Cuevas (1995) 12 Cal.4th 252 oieeeccccccecesesssncnececeeeeeesnanecesssaeeeesaeeees 80 People v. DeFrance (2008) 67 Cal.App.4th 486.0000... cccscseccccccesessneeereeeneersnseeeees 21 People v. Delamora (1996) 48 CalApp.4th 1850 oo... eeeeeseeenseeteeeeeeee 17, 18 People v. Doolin (2008) 45 Cal.4th 390.00... ccccccccceeesseseneneceeeeessessaeecesseaeeesenaeeees 38 People v. Edwards (1991) 54 Cal3d 787........cccccccccccsseceeeesseeceeceseaeeeeeaeeeeeaeeenaeees 111 People v. Engelman (2002) 28 Cal.4th 436 ooo... ce eecccecsssseeeecessneeeseseeeesseereneeeeeas 17 People v. Eubanks (1996) 14 Cal4th 580.0... eeeeesecsccceeeeeeseeneeeeeeeseaeeeeseeeseres 58 People v. Farnam (2002) 28 Cal.4th 107 oo... ceeccceeesceceesennceeesesseeeesseeeeeseeenaseesaas 17 People v. Frierson (1991) 53 Cal.3d 730... cccccccccsssssccccceeeeeeesseceeeesessaeeecnsteeenanes 49 People v. Garcia (2008) 168 Cal.App.4th 261 ooeeeeeeeeeeseereeeenees 29, 38, 50 Vill People v. Geier (2007) 41 Cal.4th 555... cccccccccccccesecssccessssetcssccssessssensseenaey 34. 48 People v. Geiger (1984) 35 Cal.3d S1Q.....cccccccccccssecsssecesseesecesecessssensseesensens passim People v. Ghent (1987) 43 Cal.3d 739 ...ccccccccsssccsccsssesscessecessssscssecesensvenes 12, 13,17 People v. Giminez (1975) 14 Cal.3d 68 w...cccccccccccscccsccseccssecccsssesssecnsecerseesrectenrens 21 People v. Griffin (2004) 33 Cal4th 536... ccccccsccsccscesecsscesssscssecssecsscesensesereeseeaees 98 People v. Guerra (2006) 37 Cal.4th 1067 ......cccccccccccsccsssccceseeeeesseeestsestseesueens 85 People v. Gurule (2002) 28 Cal.4th 557 ....ccccccccccccceccssccssaceccesseeesssesssscecseecseees 102 People v. Gutierrez (2002) 28 Cal.4th 1083 oo...cccccesssceeseseseessesessessesesees 44 People v. Gutierrez (2009) 45 Cal.4th 789 wo...cccccccccccscccsssccessscesssceseesssesseeess 97, 98 People v. Hamilton (2009) 45 Cal.4th 863 ........ccccccccccsccssecscsscscceessesseesssessecsaeens 91 People v. Henderson (2003) 110 Cal.App.4th 737 ...cccccccccccccssscsssssseseeeveees 39, 40 People v. Heskett (1982) 30 Cal.3d 841] ..ccccccccccsccscsscsssescesscescesecsecsesseenecsetsetaeees 59 People v. Hill (1992) 3 Cal4th 959 oo..ccccccccsccssesscsessssscescsssssssesessessceseeseseeaceassesas 1 People v. Hill (1998) 17 Cal4th 800 oc. ccccccccccsssesssccsscsscesscessssceecesseceaesaeeas 13, 90 People v. Hines (1997) 15 Cal.4th 997 ....cccccccccscscssscsscssecersceeceseesesssesesseateaeeaes 4 People v. Johnson (1980) 26 Cal.3d 557 wo.cccccccccccssessescsscsscsscscsscescescssserenssnsesesas 80 People v. Jones (1997) 58 Cal.App.4th 693 ......ccccccccccssscscssscessssessecsessesseeseeseseses 26 People v. Jones (1980) 108 Cal.App.3d [9] o..c.cecececcccccesceeceesscesscsseesssceseseececs 38 People v. Karis (1988) 46 Cal.3d 612 .cccccccsccscssssscssscsssesssescssessceevessesseasereaesass 85 People v. Keenan (1988) 46 Cal.3d 478......cccccccccscscescsssesssscssscscssssesesseseesatereeees 59 People v. Lang (1989) 49 Cal.3d 991 oe ecccccscscsccsscsesscessessssessstssssssscsevaeaaes 13, 16 People v. Lewis and Oliver (2006) 39 Cal.4th 970 .o...ccccccccccsccesscesseeseeescessessens 110 People v. Loker (2008) 44 Cal.4th 691 o....ccccccccsccssccssessccssccssscessecssensesersesssessesses 85 People v. Lucero (2000) 23 Cal.4th 692 ooo. cccccccccesesccsscsssecceseseseseressesessesatessees 81 ix People v. People v. People v. People v. People v. People v. People v. People v. Peoplev. People v. People v. People v. People v. People v. Peoplev. People v. People v. People v. People v. People v. People v. People v. People v. People v. Marshall (1996) 13 Cal.4th 799 oo. ceccecccceesscceeecesceeeseneeeeseesseeensteseneeeees 20 McNeal (1979) 90 Cal.App.3d 830 oo. ..eccceeceeeeeeeceeeeeseneeeeteneeeneesseeeeaas 18 Mendoza (1998) 18 Cal4th L114eceeeeeceesnrereenreeeseeenseees 54, 55, 56 Mendoza (2000) 23 Cal4th 896.00... cceecccccceceesecseecerennceeeesneeseeeeeeeeneenaes 62 Moon (2005) 37 Cal.4th |cccceccccceecceeecneceeeeceeeeeneeeceeeaaeeesseeeseneeees 37, 38 Moye (2009) 47 Cal.4th 537eceesseeeeeeesessneeeceeeeneeeensaaeeeneeeees passim Najera (2008) 43 Cal.4th 1132occee ccseseeceeeeeaeeeeeeneeeseaeeessaeeeanes 80 Nicolaus (1991) 54 Cal.3d 55 1. eeeecscecceeseeseeeeeeeeseeeeeeeseeeeees 37, 38, 54 Perez (1992) 2 Cal.4th W117.eeeeecccseessessssseeeeseeessesesseeeserenea 24 Perkins (2003) 109 Cal.App.4th 1562.00.00... eee ceeecesceceseeeeesseeereeseeeeneees 14 Ramkeeson (1985) 39 Cal.3d 346: ...ceccccccccccccceccecessnsseeeeeeeseeeeeenseeenees 75 Reed (2006) 38 Cal.4th 1224ooecccccssccceceesneeeesneeessaeessseeseeesareeeeens 66 Reyes (1998) 19 Cal.4th 743 oo. cccsccccsssecceeseseecesneeeesaeeceaeeeneeeenenseees 17 Richardson (2008) 43 Cal.4th 959 ....ccccccccccccssscssscsscsscsscssssscscseeeseees 11] Rodrigues (1994) 8 Cal4th 1060 0...eceesesceceesseeeesteeeesaeeeeeees 107 Rogers (2006) 39 Cal.4th 826 oo... eeeeecceesssnneeceseeeceseeeesaeeees 74, 75, 110 Rogers (2009) 46 Cal. 4th 1136 oceecccccsssnneeesseeeseaeeesenesseceaeeeeeees 110 Romero (2008) 44 Cal.4th 386 0... ccecccessnneeceeeceeeeseseecseeeenneeeseees 110 Rundle (2008) 43 Cal.4th 76 o....ccccccccccccccsccccceeeeeeseeeeeessaneceesseeensneees 62, 72 San Nicolas (2004) 34 Cal.4th 614 oo... ceececccceceeseceeeeeeaeeeeeseessnneeseees 24 Sanders (1990) 51 Cal.3d 471 oeeececcescccessnnecessseeeeseeceneeeeaeeeseesseeenesees 3 Scott (1978) 21 Cal.3d 284cccccccesesneceeeeeeeeeeeeeeesneeeeeeaeeeeneeesees 13, 16 Scott (1996) 14 Cal.4th 544...cccceeecesssssnceeeesseeeeeeeaeeeeaeeeseeeeseees 23 Silva (2001) 25 Cal4th 345 ooo ccccssccccsneecesesaeeseaeeceeaeecseeesteseeeecnreeeaes 8 Peoplev. People v. People v. People v. People v. People v. Peoplev. People v. Peoplev. People v. People v. Peoplev. People v. Peoplev. People v. Peoplev. Peoplev. People v. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Peoplev. Smith (2003) 31 Cal.4th 1207... cccccccccscssecessessscsssesssecssestetsevsesseeesees 4 Smithey (1999) 20 Cal.4th 936 .o..cccccccccccscsssccssscessseceecssseesteerstessens 37, 39 Sturm (2006) 37 Cal 4th 1218 oo... cccccccccscccscesssscsevsessssessstsessesesseesss 13 Superior Court (On Tai Ho) (1974) 11 Cal.3d 59. cccccccccccceccccesess 65. 70 Superior Court (Romero) (1996) 13 Cal.4th 497.0... 60, 61, 64, 65 Szadziewicz (2008) 161 Cal.App.4th 823 .....ccccecccceccscecsscsscsecaceeeees 41, 83 Tenorio (1970) 3 Cal.3d 89 oo...cccccccsccssscessessessscsssessesserersstaeees 60, 65, 70 Terry (1970) 2 Cal.3d 362 ....cccccccscccssccssssecssscsaecestessessestessssesesavesseees 14 Thomas (2005) 35 Cal.4th 635 ...cccccccccccsccscsssscsssssseseseescssescsesessssssesseceses 70 Turner (1990) 50 Cal.3d 668.00... ceecccccccccsescssccscesesscssseessscseseeessacatseeacsees 5 Urbano (2005) 128 Cal.App.4th 396 ....ccccccccccscscescesesessscsesssevscsceresess 4 Vang (2001) 87 Cal.App.4th 554cccccccccccsscssceecescescscseetecsessssceeees 22 Wallace (1985) 169 Cal.App.3d 406.......cccccccccccccsscesscsessssesterscecsssceesecees 59 Weaver (2001) 26 Cal.4th 876 ...cccccccccccscscsscessssssseesseessststsetavsesseees 110 Webster (1991) 54 Cal.3d 411 o..ccccccccccccsscessscesceesssesssestsesesesvesssee, 26 West (1980) 107 Cal.App.3d 987 o....cccccccsccsecccsscsccsscscessescsssstecatsceevsesecs 59 Wharton (1991) 53 Cal.4th 522.0... cccccscsesesessceetseesscsessearseseees 43, 106 Whisenhunt (2008) 44 Cal.4th 174 ....cccccccccccscsscsscecsecsesssscseescscscsecsees 71 Williams (1997) 16 Cal.4th 153 v.occccccccccccscsscsscscsecscesesssssesesssevevenees 107 Williams (1998) 17 Cal.4th 148 woccccccccccscsseesseseesseees 4, 20, 95, 96 Williams (2001) 25 Cal.4th 441 wooocccsscsseececcecsecseseesceessvaveveceeees 19 Wilson (2008) 44 Cal.4th 758.....ccccccccsccscsssscssescesesssecsssesssersescaveveceeces 13 Wright (1988) 45 Cal.3d L120... ccccccccccssscsscsssscsscesceecsstecstscasessssseveses 39 Yeoman (2003) 31 Cal.4th 93... ccccccccccsssccscescsesssecesesstscsrensvacstscseseees 14 xi People v. Zambrano (2007) 41 Cal.4th 1082.00... cecceeesescececeeeesteeeeeeeentereeensas 38 Sanders v. Superior Court (1999) 76 Cal.App.4th 609.00... eeececeeeeteeeereeeens 67 Santisas v. Goodin (1998) 17 Cal. 4th 599 oo... cccccccecsseceeenseeeeessssssesteeeeaeees 61 Taliaferro v. Locke (1960) 182 Cal.App.2d 752 ......ccccecccccccssscccceeesestseeeeesensereteenaes 59 Trope v. Katz (1995) 11 Cal.4th 274 ooo ccecccceseseeceseceseeeeeeeeseeeenseeseaeeeeeseeaees 61 Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011.0... 87 OTHERSTATE CASES People v. Bryant (Mich. 2009) 768 N.W.2d 65 .......ccccccccsssecssneceeeeeseeeseeeessneeessenees 99 Rodriguez v. State (Fla. 2000) 753 S0.2d 29 ........cccccsccccccssssceccesessssnscesseeeeeesssseasees 97 State v. Ayer (N.H. 2006) 917 A..2d 214 ooo cecccccscccccceseseeceseeeeeescessessseeesenstsaeess 99 State v. Bell (N.C. 2004) 359 N.C. 1, 603 S.E.2d 93 ooocceeceeeseeseeeceeeeeeeeeens 96 State v. Kirby (Conn. 2006) 908 A..2d 506 ...sccccssssesscssscssseecssssessssssesesuesesstssessssuessesseeessnees 99 FEDERAL STATUTES 28 ULS.C. § 2254 oocecccessceecesseeseceeeeeesseceseeessceeeesaeeessseceseesesseeeseeesesesaeseasecsaaees 10 U.S. Constitution, Sixth Amendment.............cc ccc ccccccscceecsessesssseessssneeees 3, 30, 51, 97 U.S. Constitution, Fourteenth Amendment ............cccccccccccccseccccececeessssseseceeeeeeees 96 U.S. Census Bureau, American Fact Finder ....ccccccccccccccsscsessvesssececceesssssesssevensssseseeee 8 STATE STATUTES Cal. Const. Art., TID, § 3 oo.eecceccescecesecseecesneeeceessseeeeeeeesseeeseseessasesseesseees 58, 63, 70 Cal. Const Art, 1, § 16 .oceccccccccscccsssecssneeessaeeessaeseesssaseessssecsseasecsssscesseeeesseeeesaeees 3 Cal. Const. Art.. 1, § 17 cccccccsccccssecccessssesesessnsceeeeeecsssesecessnssaeeucesseececessreeeess 107 Xli Code Civ. Proc. § 222 ooicciccccsceeeesessessseeeseessssssecssssssssssesasevsevsuenacsatstsstavststeasrees 6 Code Civ. Proc. § 226, subd. (a) ...cceccccccccceccecccesscecssesscesasevsseessessscasvitssveteetesees 20 Code Civ. Proc. § 231, subd. (d) ccccescsscceccseceseesecesesersesessecesseesssrssessveveesenees 20 Code Civ. Proc. §§ 233 eccccccccscscceessecssssscssssescsssacsaessessecassesaeessscssesacsssssestecessees 20 Evidence Code § 352... eccccsccsscsscssssssssecesseesecssseseesesatsessseasacessceasesesevscvaseaves 85,91 Evidence Code § 1235... cccccccccsesssssssscccsssssececesecesssessesessssensessesesessvesesseeves 48, 81 Evidence Code § 1240... ccccccccccsccssesssecsssssesssascssssevaccsssessessesssesvsessevscestesteseesees 98 Penal Code § 32...ceecseneesessesssecsseesesssssscssvscseseessevausssessessessassescssseveveseess 57 Penal Code § 190.2 (a) o.ccceecccesssssccsescesceseescsessesstasssssessessassassasssesustesasssesevavsess 85 Penal Code § 190.3 (i) .o.ecccecccescsscssssecsecssecsessessssssescsasesearevsesssesssecsesssseceeteveeses 109 Penal Code § 654... eceescessssesssessscsssssccsecsusssessussasauesaeesasessssseusessesevasteseeseecees 67 Penal Code § 667, subd. (f) ......ccccceccscsscescessssecssccsessssesscteccsssesssesseveseecteceecsesees 65 Penal Code §§ 1170.17 oo ecceeesceeesessssecsscssescssssevassscscerssassesaessssssesassssseateveveenevees 64 Penal Code §1170.19ecccccsssscsssessesessccsesssssesescassssssessssssssssssecsssesvastersvessecees 64 Penal Code § 1089...eecccssssesssssesesssecsssscssssssavsrssesscesssassaessessssstvevasecsees 16, 20 Penal Code § 1111.ccccsscssssssccessscseseesesessessuessecssscssssrauesiuscectersecsess 51, 80 Penal Code § 1170.19, subd. (€)(4) ....cccccccsescssessesceseevsecseesesscssssevsestersetereveneees 70 Penal Code § 1203.06 et Seq. ....ccccccccsccsssesescessscssesserscacsssesatsesecssscesacavesseveseeee: 64 Penal Cod, § 1259 oie cececcssesssessesecesssssesscsscsscscesvacessssesessesusssssevssvsvesteveseneeseneees 39 Penal Code § 1385occcccecssssesesssssescessssssssscsssssesssessesesaeesesasesevsevscsavevesteveseceees 65 Penal Code § 12022 (a) .o.ce i ccccsesssssseseessssssscsscsssstscessaseecsesseatssesessssvassevsveveveceeses 28 Rules of Court 8.630 (b)....cccccccscsesessssssscessssessceesessssssssssseesscssecaseucevacestectececseses 115 Welf. & Inst. Code § 1732.6, subd. (b)(2) vooceccceccecsssssesscsscscccssceccessestsctecseeesecees 64 Xlil MISCELANEOUS Fisher, Confrontation Clause, 15 Journal of Law and Policy 587 (2007)............. 99 CALIIC 2.02 voecccccccccscccssseeeseeeceseecennceeeesccecesnneeeeeceeneeeceeaaseceesseseeseceeensseeeenseesenatens 111 CALSIC 2.52 oecceccccceccccesceeeseeseceaeecesaeeeesaceeensneeeseeseeeeesssneeceseeerseeseeeensaeeen 38, 39, 40 CALSIC 3.01 coc ceeccccccccssseeescseeeseececneecesseeeeesaeeeeesenneecssneeceecseeesssaaeeeseaeessaeeseneeensgs 56 CALIJIC 3.01 ooececeeccecseccsseeceeeeceeeceeceaeeeseaeeeesaeeeceeseaaeeeeseceeseaeeseseeecesssecnssesseeseneees 54 CALJIC 3.02 oecececcecsceeenceeseceecsseeesaeeceeeeseaeeecesaeeseseeseaeeseseesesesseseaeeseaseeeeegs 55, 56 CALJIC 3.19 oooecicccccccccccseeecesssseeneeessececseeeessaaeeeeesseaeeessseeeeesaaeneaaaeeceseeseesaeeseses 79, 81 CALJIC 3.31 cceccccccssscscssesseeessesessecessessceecesesecescsaceaceaeeeesessesecaesneaceeseessesaeenseasenes 75 CALJIC 4.21 coe cccccccsscessnereecsneeenseessnecesseceneceseesneessaessaeeeenscesseeeeseeeenseensaeengs 53, 54 CALJIC 8.20 occ cecccsccsscessecessneeseeesecesaeeeenecssecesenecessaaeeessecssaseeeesseeeesseeeessecsseasessengaas 23 CALJIC 8.73 ..eccesccssscesrcssesesscceeecsecssneecsneecssecseneecesaaeessaeeeaeeeeseesseeeseesenseaessaesseasagee 45 Note, “An Argument for Confrontation Under the Federal Sentencing Guidelines,” 105 Harv. L. Rev. 1880 (1992)... eeeeeeceeeeeseeesetssersreeeseeeeeeas 95 Alan C. Michaels, “Trial Rights at Sentencing,” 81 N.C.L.Rev. 1771 (2003)...... 95 XIV SUPREME COURTOF THE STATE OF CALIFORNIA S076785 PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondents, Vv. PEDRO RANGEL,Jr., Defendant and Appellant. APPELLANT’S REPLY BRIEF In this Reply Brief, appellant replies to the arguments raised in Respondent’s Brief. No waiver is intended as to any argumentnot specifically addressed or reiterated in this Brief. (People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3.) ARGUMENT I. APPELLANT WAS DENIED THE RIGHT TO A JURY DRAWN FROM A REPRESENTATIVE CROSS-SECTION OF THE COMMUNITY, BY THE SELECTION OF JURORS IN ORDER AC- CORDING TO THEIR APPEARANCE ON THE FIRST PANELS OF PROSPECTIVE JURORS. Appellant was denied his right to a jury drawn from a repre- sentative cross section of the community, guaranteed by the Sixth Amendmentto the United States Constitution and by Article I, sec- tion 16 of the California Constitution, by the trial court jury selection procedure by which the initial panels containing most of the Hispan- ic prospective jurors were not included in the random draw and could not be considered for service on this jury. (People v. Sanders (1990) 51 Cal.3d 471, 491; Taylor v. Louisiana (1975) 419 U.S. 522, 530.) Respondent contends that the issue is forfeited for failure to object; that the six groupscalled for jury selection (“initial panels” in appellant’s terminology) were created according to statutory proce- dures; that the defendant must show that the overall venire was ra- cially skewed; and that the Hispanic representation on appellant’s jury wasnotless than that of the community as a whole. A, This Constitutional Error May Be Reviewed Without Objection. As stated in People v. Smith (2003) 31 Cal.4th 1207, 1215, “an appellate court is generally not prohibited from reaching ques- tions that have not been preserved for review by a party. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)” (See People v. Urbano (2005) 128 Cal.App.4th 396, 404.)' This Court should ex- ercise its discretion to review this issue becauseit affects the conduct ofjury trials throughout the state. The issue is otherwise impervious to review because analysis of the racial composition of large groups of people is only possible from the perspective of the appellate stage of review. Moreover, a “pure question of law” which does not involve the lower court’s use of discretion or findings of fact may be raised on appeal in the absence of an objection. (People v. Hines (1997) 15 Cal.4th 997, 1061; In re Samuel V. (1990) 225 Cal.App.3d 511, 515.) This claim of constitutional error, involving a conflict be- tween California statutory procedure and the demands ofthe state “Assuming arguendo Urbanoforfeited his right to appel- late review byfailing to object, nonetheless reviewing courts gener- ally have discretion to consider on the merits issues a party has not preserved for review. (See People v. Smith (2003) 31 Cal.4th 1207, 1215.)” and federal constitutions, is appropriate for review as a pure question of law. In addition, the failure to object is excused where the argu- ment involves a legal doctrine which could not have been foreseen by trial counsel at the time of trial. (People v. Black (2007) 41 Cal.4th 799, 811; People v. Turner (1990) 50 Cal.3d 668, 704.) This is particularly true for cases involving a change of procedurein jury selection. (See Ford v. Georgia (1991) 498 U.S. 411, 423: Trevinov. Texas (1992) 503 U.S. 562, 567.) The present argument involves a procedure which has been sanctioned by custom, and which is (according to respondent) autho- rized by state law, but which is constitutionally infirm. The funda- mental constitutional claim should be addressed in the absence of an objection. B. The Statute Is Not Clear on the Procedure for Random Draw When There Are Multiple Initial Panels. Respondent arguesthat the procedureused here is not subject to challenge, simply because it conformsto state statute. But Cali- fornia statutes which refer to “jury panels” are based on the assump- tion that a trial jury may be drawn from a single panel of 50 or 60 prospective jurors. Where multiple initial panels — here six — are summoned and examined (a common procedure in capital cases), a random process cannot be assured unless prospective jurors are drawn from the entire combined panel. Code of Civil Procedure § 222 provides for randomnesseither by a random selection process by the court clerk (subd. (a)), or by an assumed randomnessin the assignment of prospective jurors to the trial department (subd. (b)).° The randomness requirement runs across the jury selection process; thus it cannot be defeated by point- ing to a subgroup (one or twoofthe “initial panels’) that may have been randomly selected, while selection from the overall jury panel proceeded in a non-random fashion. The trial court could have assured randomnessin this trial by ordering a random draw by the court clerk, from all the combined initial panels (subd. (a)). But that procedure is not mandated, and the statute is unclear on whatthe trial court should do whenthere are multiple initial panels drawn for a single capitaltrial. , “(a) Except as provided in subdivision (b), when an action is called for trial by jury, the clerk shall randomly select the names of the jurors for voir dire, until the jury is selected or the panel is ex- hausted. “(b) When the jury commissioner has provided the court with a listing of the trial jury panel in random order, the court shall seat prospective jurors for voir dire in the order provided by the panel list.” As pointed out in the Opening Brief, the statutory and consti- tutional guarantee of randomness is defeated when multiple initial panels are called for trial of a capital case. If most of the minority prospective jurors are groupedin thelater initia! panels. as here, then randomnessas guaranteed by state statute is defeated. Respondentis wrong to seek refuge underthe state statutory structure because that structure is not clear. Furthermore, mere compliance with state statutory procedure is not necessarily enough to guarantee a constitutional result. If most of the minority prospective jurors cannot be reached in the process ofcalling prospective jurors to the jury box, as here, and that is a result of a deliberate nonrandom process ofjury selection, equal protection is denied. C. Appellant Need Not Demonstrate that the Orig- inal Venire Called to Serve on His Jury Was Racially Skewed. Respondent contends that appellant must demonstrate that the venire racial composition differs significantly from the community racial composition, citing Taylor v. Louisiana (1975) 419 U.S. 522 and Duren v. Missouri (1979) 439 U.S. 357. To the contrary, even if the jury venire has been fairly drawn, there still may very well be an unconstitutional method of jury selection leading to a violation of equal protection. See Batson v. Kentucky (1986) 476 U.S. 79, 94. and People v. Silva (2001) 25 Cal.4th 345, 386. The Hispanic composition of Madera County is very high. The United States Census Bureau estimates the current (2008) popu- lation of Madera County to be 50.8% Hispanic. In 2000, four years after appellant’s trial, the Hispanic portion of Madera County’s pop- ulation was 44.3%. In 1990 the Hispanic portion of the county’s population was an estimated 48.0%, based on reporting by house- hold units. (Source: U.S. Census Bureau, American Fact Finder, Quick Tables.) The jury venire here grossly underrepresented the Hispanic population of Madera County. But that is not the focus of appel- lant’s contention. Of the Hispanic prospective jurors who werepart of the original venire and who werecalled for examination, and who survived exclusion for hardship, the majority were relegated to ini- tial panels which could not be conceivably reached in the draw, even if the parties had exercisedall their peremptory challenges. This ra- cial exclusion was the result of a non-random process ofjury selec- tion. D. The Proportion of Hispanics on the Relevant Portion of the Venire — the First Two Initial Panels — Was Less than the Proportion of His- panics in the Venire as a Whole, and Less than the Proportion ofHispanics in the Community. One Hispanic person served on appellant’s jury — a proportion of 8.3%in a county which was almost half (no less than 44%) His- panic. The subgroup of the venire which was made available for the draw was composedofthe first two initial panels, a total of 84 per- sons.’ Ofthat group eight persons (including the seated juror) were Hispanic.’ Thus the group available for selection as jurors on appel- lant’s trial jury was 9.5% Hispanic. But the six initial panels taken as a whole — a total of 222 per- sons’ — contained 34 Hispanic persons.° This was a proportion of 15.3%. There were far more Hispanic persons available and quali- fied to serve (15.3%) than the proportion of Hispanics in the initial panels subject to the draw (9.5%). See Appellant’s Opening Brief, p. 57. See Appellant’s Opening Brief, pp. 60-61. ° There are 222 juror questionnaires, completed by persons who passedthe hardship phaseofvoirdire. See Appellant’s Opening Brief, p. 61. The under-representation of Hispanics in the pool available for jury selection in this case resulted in a violation of the fair cross- section requirement under the comparative-disparity test as well as the absolute-disparity test. (Compare United States v. Sanchez-Lopez (9th Cir. 1989) 879 F.2d 541, 547, with Serena v. Mock (9th Cir. 2005) 547 F.3d 1051, 1054, n.2, and United States v. Rodriguez- Lara (9th Cir. 2005) 421 F.3d 932, 943 n. 10.)’ The disparity between the Hispanic portion of the available prospective jurors and the Hispanic portion of the venire was a side effect of the selective process of performing jury selection only from the first two initial panels. Not coincidentally, the Hispanic propor- tion of appellant’s jury was far below that of the community as a whole. But the Hispanic proportion of appellant’s jury was also sig- nificantly lower than the Hispanic proportion of the qualified initial ’ The application of absolute disparity versus comparative dis- parity is now before the United States Supreme Court, in Berghuis v. Smith, cert. granted Sept. 30, 2009, No. 08-1402. “Whether the U.S. Court of Appeals for the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply ‘clearly established’ Su- preme Court precedent under 28 U.S.C. § 2254 on the issue of the fair cross-section requirement under Duren where the Sixth Circuit adopted the comparative-disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires), which this Court has never applied and which fourcircuits have specifically rejected.” 10 panels taken as a whole. For these reasons. appellant was denied equal protection by a systematic fault in the method ofjury selec- tion, 11 HW. APPELLANT WAS DENIED DUE PROCESS BY THE TRIAL COURT’S REFUSAL TO EXCUSE A PROSPECTIVE JUROR, ULTIMA- TELY SEATED ON THE JURY, WHO HAD A FIXED OPINION ON THE DEATH PENALTY AND WAS PROPERLY CHALLENGED FOR CAUSE. Appellant was denied federal due process by the seating of a juror whohada fixed opinion on penalty. (Wainwright v. Witt (1985) 469 U.S. 412, 424; People v. Ghent (1987) 43 Cal.3d 739, 767.) Respondent argues that appellant’s challenge for cause, strongly arguedto the trial court, was forfeited for failure to exercise a peremptory challenge. In addition, it is said, this juror was not subject to challenge for cause. A. The Juror Was Properly Challengedfor Cause. Respondent claims that the prospective juror so successfully indicated her fairness that defense counsel implicitly decided to keep her on the jury. This claim is wholly unrealistic in view of the record. The juror vigorously held to her belief that death was the only proper punishmentfor first degree murder. The juror barely was able to entertain the possibility of a pu- nishment other than death following a first degree murder verdict. A juror such as this must be excluded for cause if his or her views on capital punishment would “prevent or substantially impair the per- 12 formance ofhis duties as a juror in accordance with his instructions and his oath.” (Wainwright v. Witt (1985) 469 U.S. 412. 424: People v. Ghent (1987) 43 Cal.3d 739, 767.) B. Defense Counsel's Obligation to Challenge the Ju- ror WasSatisfied by the Challengefor Cause. Respondentrelies on the rule that a failure to exhaust peremp- tory challenges bars an appellate attack on the jury composition. (People v. Bolin (1998) 18 Cal.4th 297, 315.) Juror no. 180007014 was properly challenged for cause. With the entry of the challenge for cause, it should have been un- derstood that the defense was also entering a peremptory challenge. In general, in a criminal case an objection will be preserved if de- spite inadequate phrasing the record shows that the trial court un- derstood the issue presented. (People v. Scott (1978) 21 Cal.3d 284, 290; People v. Lang (1989) 49 Cal.3d 991, 1010.) And, if a party has once formally taken exception to a ruling, he is not required to renew the objection at each recurrence of the issue. (People v. Hill (1998) 17 Cal.4th 800, 820.) “A litigant need not object, however, if doing so would be futile. (People v. Brown (2003) 31 Cal.4th 518, 553.)” (People v. Wilson (2008) 44 Cal.4th 758, 793.) Under these circumstances, it was misconduct for thetrial court to insist on the seating of an unqualified juror. (See People v. 13 Sturm (2006) 37 Cal.4th 1218, 1237-1238; and see People v. Terry (1970) 2 Cal.3d 362, 398 and People v. Perkins (2003) 109 Cal.App.4th 1562, 1567 [no objection required].) The challenge for cause subsumed the peremptory challenge; it was a clear objection to the seating of this juror on this capital jury. An unqualified juror sat in judgment on the death penalty issue in violation of due process (see People v. Yeoman (2003) 31 Cal.4th 93, 114), and the death sentence must besetaside. 14 Il. IT WAS ERROR TO DENY DEFENSE CHALLENGES TO TWO SWORN JURORS, ONE OF WHOM KNEW VICTIM CHUCK DUR- BIN’S BROTHER RANDY, AND ONE OF WHOM WAS FORMERLY RELATED BY MARRIAGE TO DURBIN’S MOTHER. Due process was denied by the seating of jurors who knew the victim’s relatives. (Williams v. Taylor (2000) 529 U.S. 420, 442.) Respondent argues that the challenge to these jurors was forfeited, and that there was no showingofbias sufficient to justify their re- moval. A. The Objection Was Not Forfeited. Respondent suggeststhat the defense effort to challengejuror no. 180002598 was forfeited, first because defense counsel did not orally examine her during the voir dire process. This consideration has no significance in reviewing appellant’s argument; defense counsel had plenty of information without engagingin voir dire. The juror had filled out a questionnaire, which disclosed sub- stantial reasons for the defenseto be leery of her.’ Defense counsel 8 In her questionnaire the juror indicated that the death penalty was the only appropriate punishment for murder: “I use[d] to believe 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 the death penalty is not used enough: “people are getting out on lesser sentences.” (14 CT 3063.) She indicated 15 indicated that that due to her close connection with law enforcement, “it was a very close question whether we were going to use a pe- remptory challenge.” He noted that “it seems rather incredible”that her relationship with Randy Durbin did not come out on voir dire, and asked that the court reopen the issue of jury selection. (4 RT 852.) Respondent also argues that the issue was conceded because defense counsel did not take the trial court’s invitation to submit fur- ther information or legal authorities. To the contrary, defense coun- sel clearly stated his position, which was fully understood bythetri- al court. An objection is preserved if the record showsthat the trial court understood the issue presented, and ruled on it. (People v. Scott, supra; People v. Lang, supra.) Penal Code § 1089 provides that the trial court alone, without objection or request, may “order the juror to be discharged and draw the name of an alternate,” whenever a juror dies or becomesill, “or upon other good cause shown to the court is found to be unable to perform his or her duty.” This Court has determined that Section 1089 authorizesa trial court to discharge a juror if “good cause”is that several friends and relatives were employed in law enforcement or the prison system. (14 CT 3051.) 16 shownthatthe juror is unable to perform his or her duty. When the trial court is put on notice that good cause may exist to discharge a juror, it is the duty of the court to make whatever inquiry is reasona- bly necessary to determine if the juror should be discharged, and the failure to make such an inquiry is error. (People v. Farnam (2002) 28 Cal.4th 107, 140-141; see People v. Engelman (2002) 28 Cal.4th 436, 442 [duty to inquire during deliberations].) “Good cause” certainly includes the juror’s views on capital punishment,if the juror’s views would “prevent or substantially im- pair the performanceof his duties as a juror in accordance with his instructions and his oath.” (Wainwright v. Witt (1985) 469 U.S. 412, 424; People v. Ghent (1987) 43 Cal.3d 739, 767.) Whenthetrial court has reasonto believe that a juror may be unable to perform his or her duties, the court must conduct “an in- quiry sufficient to determine the facts.” (People v. Burgener (1986) 41 Cal.3d 505, 519, overruled on another ground in People v. Reyes (1998) 19 Cal.4th 743.) Such an inquiry is required in part because, on appellate review, “the trial court’s determination that good cause exists to discharge a juror must be supported by substantial evi- dence.” (People v. Delamora (1996) 48 Cal.App.4th 1850, 1856.) Failure to conduct an adequate injury into allegations of juror mis- conduct or inability to perform has been held to be prejudicial and 17 reversible error. (See, e.g. People v. Castorena (1996) 47 Cal.App.4th 1051, 1066 [failure to conduct an adequate inquiry into allegations of juror misconduct was prejudicial where the trial court “did not have the requisite facts upon which to decide whether [the discharged juror] in fact failed to carry out her duty as a juror to de- liberate or whether the jury’s inability to reach a verdict was due, instead, simply to [the juror’s] legitimate disagreement with the oth- er jurors”}; People v. Delamora (1996) 48 Cal.App.4th 1850, 1856 [trial court’s determination that good cause exists to discharge a ju- ror must be supported by substantial evidence and wherethere is no evidence to show good cause because no inquiry of any kind was made, the procedure used was by definition inadequate]; see also People v. McNeal (1979) 90 Cal.App.3d 830, 838 [“Once the court is alerted to the possibility that a juror cannot properly perform his duty to render an impartial and unbiased verdict,” the trial court “is obligated to make reasonable inquiry” as to the facts concerning im- partiality and bias.].) For these reasons, the trial court was under a duty, indepen- dent of counsel’s objections, to make a suitable inquiry and remove the unqualified juror, and the lack of further objection by trial coun- sel does not preclude review on appeal. 18 Regarding juror no. 173558182, who wasrelated to the vic- tim’s family, respondentcriticizes appellant’s argument as perfunc- tory. It is true that defense counsel made no challenge to the contin- ued service of the juror when the newinformation came out. Never- theless, appellant does not abandon this argument. since it appears that a juror sat in judgment who should have been disqualified. B. The Juror Should Have Been Disqualified. As noted by respondent, when the prosecutor brought up the name of Randy Durbin, Chuck Durbin’s brother, one prospective ju- ror indicated that she knew him very well and could not be fair, and the trial court excused her. (4 RT 564.) Juror no. 180002598, who wasshortly called to the jury box, may have taken the cue to avoid being excused; she did not acknowledge any familiarity with the vic- tim. Respondent relies on the general test for review ofa trial court’s discretion in removing a sworn juror,’ citing People v. Wil- liams (2001) 25 Cal.4th 441, 447-448.'° In Williams this Court re- 9 The jurors and alternates were sworn just before the informa- tion about the juror’s association with Randy Durbin cametolight. (3 RT 748, 773.) '0 “A trial court’s authority to discharge a juror is granted by Penal Code section 1089, which providesin pertinentpart: ‘If at any time, whether before or after the final submission of the case to the 19: . viewed a trial court’s decision to remove a sworn juror in a non- capital case, when it was determined that the juror disagreed with the law and would not follow the trial court’s instructions (see discus- sion of section 1098, supra)."' jury, a juror dies or becomesill, or upon other good cause shown to the court is found to be unable to perform his duty, or if a juror re- quests a discharge and good cause appears therefor, the court may order him to be discharged and draw the nameofan alternate, who Shall then take his place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors.’ [fn.] (Italics added; see also Code Civ. Proc., §§ 233, 234.) ‘We review for abuse of discretion the trial court’s de- termination to discharge a juror and order an alternate to serve. [Ci- tation.] If there is any substantial evidence supporting the trial court’s ruling, we will uphold it. [Citation.] We have also stated, however, that a juror’s inability to perform as a juror must ‘ “appear in the record as a demonstrablereality.’” [Citation.]’ (People v. Mar- shall (1996) 13 Cal.4th 799, 843.)” 7 Whenthe jury has not yet been sworn, the trial court’s deci- sion to discharge or not discharge a juror is also reviewed for abuse of discretion. ““A challenge to an individual juror may only be made before the jury is sworn.” (Code Civ. Proc., § 226, subd. (a).) The ‘jury,’ under this provision, does not include the alternates. (People v. Cot- tle (2006) 39 Cal.4th 246, 257.) ‘Peremptory challenges shall be taken or passed bythe sides alternately ..... When each side passes consecutively, the jury shall then be sworn, unless the court, for good cause, shall otherwise order.’ (Code Civ. Proc., § 231, subd. (d), italics added.) Accordingly, although the law no longer permits a trial court to reopen jury selection proceedings once a jury has been sworn (People v. Cottle, supra, 39 Cal.4th at p. 258), the em- phasized portion of subdivision (d) of Code of Civil Procedure sec- tion 231 affords the court the discretion to reopen proceedings when the jury has not yet been sworn (see People v. DeFrance (2008) 167 Cal.App.4th 486, 504). ‘[D]iscretion is abused whenever the court 20 Significantly, neither of the parties in this appeal have cited any prior decisions in which a seated juror was found to havea rela- tionship with a victim/ witness in a death penaltytrial. particularly where the juror was allowed to remain onthe jury. The death penalty decision is unlike any other decision faced by ajuror. It is not readily comparable to a decision on witnesscre- dibility, for instance, in which a juror might be able to set aside his or her feelings about an acquaintance/ witness and objectively judge the witness’ credibility. In large part, the penalty decision here had to do with the depth of the loss sustained by the Durbin family and how much weight that should havein the penalty determination. Surely the fac- tor of victim impact is much weightier in the eyes of a juror who knowsthe brother of the homicide victim. This consideration was not adequately weighed bythetrial court, and it was an abuseofdis- cretion to refuse to removejuror no. 180002598. exceeds the boundsofreason,all of the circumstances being consi- dered. [Citations.]’” (People v. Giminez (1975) 14 Cal.3d 68, 72.) Althoughthe jury was sworn before the juror’s relationship to Randy Durbin cameto light, the opening statements had not been given, there was no pre-instruction, and no witnesshadtestified. 21 IV. THE RECORD CONTAINS INSUFFICIENT EVIDENCE OF PREMEDIATION TO SUPPORT THE CONVICTION ON COUNTI, MURDER OF CHUCK DURBIN. Respondent seeks for evidence of premeditation in the shoot- ing of Chuck Durbin, and claimsto find it in the evidence of the plan to track down and shoot Juan Uribe. This reasoning should be re- jected. First, there is no evidence that the perpetrators intended to massacre everyone in the house, or even anyone who “got in the badway.” The object of the perpetrators was to eliminate Juan Uribe, who was the source of the escalating and increasingly lethal ex- changes betweenthe twofactions. Second, Chuck Durbin was not in the line of fire of Juan Uribe. He wasnot killed because he wasin the “kill zone”; the ele- ments of intent and premeditation which applied to the killing of Juan Uribe could not be applied across the board to the killing of another person who wasnot in the kill zone. (See People v. Bland (2002) 28 Cal.4th 313, 333 [victims in car were in “kill zone”]; People v. Vang (2001) 87 Cal.App.4th 554, 564-565 [shooting from outside the house; all persons in house, even those unknownto the defendant, were potential victims of attempted murder].) 22 Third. there is no rational reason to find premeditation in the absence ofintent, or before intent is formed.'? The defendant must know ofthe victim, or at least his existence or potential existence, before he can “deliberate” the killing. ‘““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 considered before- hand.” (CALJIC 8.20.) The death of Chuck Durbin was the product of a separate mental state; it was not the direct product of the murder of Uribe. Yet respondent proposes that the element of premeditation be trans- ferred from the killing of Uribe to the killing of Durbin. The doc- trine which respondent proposesis a sort of “transferred premedita- tion,” akin to the doctrine of transferred intent. (See People v. Scott (1996) 14 Cal.4th 544 [defendant intends to kill one person, but by mistake or inadvertence kills someoneelse].) According to this pro- posed doctrine, persons who premeditate the killing of one person necessarily premeditate the killing of another person whois later See United States v. Begay (9th Cir. 2009) 567 F.3d 540, 547: “... [P]remeditation, at minimum, requires that at some point after the defendant formsthe intent to kill the victim, he has the time to reflect on the decision to commit murder, that he in fact doesreflect on that decision, and that he commits the murder with a ‘cool-mind’ after having engagedin such reflection.” 23 killed but who is unknownto the perpetrators when the premedita- tion is formed. No authority is cited for this proposition. Even if appellant killed Durbin intentionally, the element of premeditation was lacking. Since appellant did not know Durbin and had no reason to harm him, Durbin’s death could not have been part of the planning process. Planning and motivation are the most common elements which may support a finding of premeditation (People v. San Nicolas (2004) 34 Cal.4th 614, 657-658; People v. Anderson (1968) 70 Cal.2d 15, 26-27); those elements are lacking on this record. True, the elements of planning and motivation are not essen- tial, and the record may disclose other evidence to support a finding of premeditation. (cf. People v. Perez (1992) 2 Cal.4th 1117, 1124- 1125.) But respondent does not point to any other factor which would play a comparable role or which would substitute for evi- dence of planning and motivation on this record. This is necessary; without evidence to support premeditation, the first degree murder verdict must be reversed. There was substantial confusion in the rendering of this ver- dict, and particularly on the question of premeditation in Count1. 24 The prosecutor managed to conflate the elements ofintent and premeditation in his argumentto the jury: this alone could have produced the first degree murder verdict. (See Argument XII be- low.) Andthen the final [element] is the willful, deli- berate, 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[nJing ahead of time? They get togeth- er and they draw diagrams and everything? No. It does not meanthat at all. It means that the intent to kill, that the killing was accompanied by clear and de- liberate intent to kill. That this intent to kill was formed upon pre-existing reflection andthat the slayer must have weighed and considered the question ofkill- ing, the reasons for and against killing, and having in mind the consequences ofkilling, he chooses to kill and he doeskill. 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. Thetrue test is not the duration of the time, but the extent of the ref- lection. A cold and calculated judgmentcan be arrived at in a short amountoftime. (9 RT 2123-2124; emphasis added.) The resulting verdict reflected the jury’s confusion. The jury found untrue the personal use allegation on Count 1. (11 CT 23 86.) This hardly comports with the conviction on Count 1, since under any reasonable view of the evidence, if appellant killed Durbin he used a firearm to do it. (See Argument V below.) 25 The verdict is to be given a reasonable intendment, and be construed in light of the issues and the instructions. (People v. Jones (1997) 58 Cal.App.4th 693, 710.) Technical defects may be disre- garded if the jury’s intent to convict of a specific offense is unmis- takably clear. (People v. Webster (1991) 54 Cal.3d 411, 417.) But the jury’s intent is hardly clear here. The jury must have found something lacking in the evidence relating to Count 1, and the lack of evidence of premeditation surely played a role. For these reasons, the conviction on Count 1 must be reduced to second degree, and the death penalty judgment must be set aside. 26 V. THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT THE FINDING OF PERSONAL USE OF A FIREARM AS TO COUNT II, MURDER OF JUAN URIBE. Respondent argues that there was evidence offirearm use in Count 2 because Chuck Durbin waskilled in the effort to get at Juan Uribe. Respondent claims that “Chuck confronted the armed home invaders and wasshot to death; Uribe was then shot to death in the kitchen.” (RB 61.) To the contrary, the record contains no evidence that Durbin was shot before Uribe. See testimony of Cindy Durbin at 6 RT 1383-1388, and testimony of Richard Diaz at 5 RT 1273-1274, 1348. Ms. Durbin describes shots fired at her (and presumably Uribe)first, before her husbandrushedinto the living room to protectthe child- ren. Diaz described the shooting of Uribe first, followed by the shooting of Chuck Durbin. If Uribe waskilled before Chuck Durbin was shot, then ap- pellant’s firearm use could not havefacilitated the Uribe murder, and lacked a nexustoit. In the alternative, respondent suggests that the firearm use enhancement to Count 2 be reduced to an arming enhancement 27 (Penal Code § 12022 (a)). Appellant agrees; this argument does not encompass a challenge to an arming enhancement. However, such a modification would affect the death judg- ment. The prosecution case in aggravation was not overwhelming; the shooting of Uribe was provoked by Uribe’s own criminal con- duct, and the shooting of Durbin was not contemplated in advance. Appellant had no prior record. He was a hard workerand a pillar to his family, and had cared for several stepchildren and others who were homeless or abandoned. The personal firearm use allegation surely had a role in the penalty determination. Alteration of this verdict should lead to the reversal of the death judgment. 28 VI. APPELLANT WASDENIED THE RIGHT TO CONFRONTATION BY THE ADMISSION OF OUT-OF-COURT STATEMENTS AGAINST PENAL INTEREST OF HIS SON AND CO- DEFENDANT, PEDRO RANGEL III, THROUGH THE TESTIMONY OF ANOTHER SUSPECT, JESSE RANGEL, AND BY THE USE OF AN OUT-OF-COURT STATEMENT OF HIS WIFE, MARY RANGEL, INTRODUCED AS AN ADOP- TIVE ADMISSION THROUGH THE TESTIMO- NY OF JESSE’S WIFE ERICA RANGEL. Despite respondent’s argument to the contrary, the out-of- court statements challenged here were testimonial: the statements were not casual conversations, but went to the heart of a murder case which wasin the process ofactive investigation. The sources of the alleged statements were so highly interested in the outcomethat they acted essentially as police agents; for that reason the statements were also unreliable. The parties disagree about the application of confrontation guarantees to out-of-court statements characterized as “testimonial.” The court of appeal has summarized the undecidedstate of this con- troversy in People v. Garcia (2008) 168 Cal.App.4th 261, 283: The People suggest there was no Aran- da/Bruton error because none of Garcia’s out-of-court statements in question were testimonial—i.e., none were made under circumstances that would lead an ob- jective witness to believe they would be available for use at a later trial. The People rely on Crawford v. Washington (2004) 541 U.S. 36, 53-54 (Crawford), in 29 which the United States Supreme Court held that the Sixth Amendment bars “admission of testimonial statements of a witness who did not appearattrial un- less he was unavailable to testify, and the defendant... had a prior opportunity for cross-examination.”(Italics added.) Whether the Aranda/Bruton rule applies only to extrajudicial testimonial statements appears to be an unsettled question, and one that we need not address in this case. We note, without citation or reliance, that there is inconsistency in unpublished California appel- late court opinions on the issue. We also note the fed- eral Third Circuit Court of Appeals has “interpreted Bruton expansively, holding that it applies not only to custodial confessions, but also when the statements of the non-testifying co-defendant were madeto family or friends, and are otherwise inadmissible hearsay.” (U.S. v. Mussare (3d Cir. 2005) 405 F.3d 161, 168.) (Emphasis added.) Appellant was prejudiced in the guilt phase because the con- trived testimony of Jesse Rangel, providing a version of the offense through the mouth ofLittle Pete which erased Jesse himself from the crime scene, became the template for Richard Diaz’ testimony, and that in turn influenced Cindy Durbin to change her eyewitness iden- tification. In short, the out-of-court statement was the keystone to the prosecution case. Appellant wasprejudiced in the penalty phase because Mary Rangel’s moral judgment on appellant’s relative culpability neces- sarily influenced the jury’s penalty determination. (See Duncan v. Ornoski (9th Cir. 2008) 528 F.3d 1222, 1240 [omitted evidenceaf- fected jury’s assessment of defendant’s exact role in crime.) 30 A. Jesse Rangel Repeated Purported Testimonial Statements by Little Pete. Respondent argues that the statements of Little Pete were not testimonial because “[t]here is [no] evidence that Jesse wasactingas somesort of ‘police agent.’” (RB 69.) To the contrary, Jesse was recruited as a police agent as soon as he was run to ground in New Mexico. Jesse and Erica gave statements to Officer Ciapessoni over the phone from theirtrailer in New Mexico. (6 RT 1598.) A short time later, Investigator Bena- bente appeared at the door oftheir trailer. (6 RT 1520, 1598.) Jesse wasnot arrested. Jesse and Erica were then flown back to California at county expense. (6 RT 1550.) In this situation, Jesse was recruited as a police agent. His motives in relation to repeating or misconstruing the statement of Little Pete, or manufacturing it out of whole cloth, were the same as those of a police agent. (cf. Crawford v. Washington (2004) 541 U.S. 36, 56, fn. 7 [“Involvement of governmentofficers in the pro- duction of testimony with an eye toward trial presents unique poten- tial for prosecutorial abuse....”].) The conversations described by Jesse were not “casual remark(s] to an acquaintance.” (RB 68.) In People v. Cage (2007) 40 Cal.4th 965, relied on byres- pondent, this Court reviewed a conviction for domestic violence. 31 The alleged victim was not available for trial, and her statements were used in evidence over a confrontation objection. But she was in no sense a “police agent,” because, unlike Jesse Rangel, she was never a suspect, she never worked hand in glove with investigators, and she never had a motive to shift blame from herself and onto the defendant. Jesse Rangel was provided a perfect opportunity to manufac- ture evidence against appellant which would conveniently take him- self out of the homicide scenario. Significantly, he did not go to the police with this highly relevant information, and did not mentionit until he was trapped in New Mexico. In these circumstances the hand of the governmentis too plain to muzzle confrontation protec- tions. Appellant has cited People v. Corella (2004) 122 Cal.App.4th 461, 467, for the proposition that a nontestimonial hearsay statement continues to be governedbythe “reliability” standard of Ohio v. Ro- berts (1980) 448 U.S. 46, 65. (See also People v. Smith (2005) 135 Cal.App.4th 914, 924.) Respondent counters with a citation to People v. Cage, supra, 40 Cal.4th at 981, fn. 10, exempting nontes- timonial hearsay statements from the Roberts “reliability” require- ment. 32 The Corella standard, adopting Ohio v. Roberts to nontesti- monial hearsay, has not been overruled. Moreover, California applies a similar reliability standard to purported statements against penal interest. Jesse Rangel’s self- serving testimony repeating Little Pete’s out-of-court statements fails this test. In People v. Blankenship (1985) 167 Cal.App.3d 840, the de- fendant claimed that another person had confessed to him. When that person (the declarant) wascalled to testify, he exercised his self- incriminationprivilege (like Little Pete here; see 3 RT 815-816) and thereby became unavailable. The defendant then proposed to testify to the declarant’s confession, as a statement against penalinterest (as Jesse Rangel did here). This gambit was refused, and the decision to exclude the proposed testimony was upheld on appeal. The defen- dant’s proposed testimony was highly suspect “because defendant had a motive to falsify and because accurate details concerning the crime could be explained by defendant’s own knowledge and guilt rather than [the declarant’s].” (/d. at 849.) The samecan besaid of Jesse Rangel in this case: (1) he had “a motive to falsify”: he had the motive and opportunity to commit the crimes, and he faced capital murder charges if Cindy Durbin’s initial identification of him turned out to be correct; moreover, (2) 33 “accurate details concerning the crime” could be explained by Jesse’s own involvement, all he had to do was place the details in Little Pete’s mouth. A similar result was reached by this Court in People v. Geier (2007) 41 Cal.4th 555, 585. In Geier the defense offered a video- taped statement of the wife of a homicide victim, in which she claimed that she killed her husband. The statement was offered as a declaration against penal interest. However, since she was having an affair with one of the accomplices to the alleged murder, she had a motive to give a false statement against penal interest. The situation in Geier differs from the present case because there the trustworthi- ness of the declarant wasin issue; here there is no videotapeandit is the trustworthiness of the witness (Jesse Rangel), not the declarant, whichis in issue. Nevertheless, it is clear from both Blankenship and Geier that California courts do not uncritically accept evidence of statements against penal interest. There is a reliability factor much like the re- quirement from Ohio v. Roberts, supra. Here the testimony of Jesse Rangel fails the reliability test. His testimony was most likely con- trived to shift the blame away from himself. The out-of-court statements repeated by Jesse Rangel were the keystone of the prosecution case. They were provided in written 34 form as discovery to Richard Diaz while he was a co-defendant of appellant, and they thereby became the template for Diaz’ owntes- timony. The combination of evidence against appellant finally ob- liged Cindy Durbin to changeheridentification. Thus appellant was prejudiced by the use of the out-of-court statementattributed to Lit- tle Pete. B. Erica Rangel Repeated Purported Testimonial Statements by Mary Rangel as Adoptive Admis- sions ofAppellant. Respondent claims that appellant’s confrontation objection wasnot preserved for failure to object. To the contrary, the defense objection to the Erica Rangel - Mary Rangel - Pete Rangel statement was explicitly linked to the objection to the Jesse Rangel- Little Pete statement. (See discussion at 6 RT 1560.) A foundational hearing was held. The objection was thoroughly presented to the trial court. Respondent argues that appellant was not in a Catch-22 situa- tion with respect to his wife and son;according to respondent, appel- lant could have explicitly denied the involvement of both him and his son in the face of his wife’s accusations. (RB 75.) Perhaps, but whatif Little Pete was guilty, and appellant knew it? Or what if ap- pellant did not know if his son was guilty or not and wastherefore notin a position to protest his son’s innocence? Expecting appellant 35 to wade into a domestic quarrel with his wife in these circumstances is an unreasonable burden, and introduction of the adoptive admis- sion is an unreasonable sanction. Respondent further argues that any error was harmless. But respondent ignores the key role that these statements played in both phases ofthe trial. In particular, appellant’s role in creating a false alibi tape was merely the act of an accessory (see Argument XI), and did not point necessarily to guilt on the murder charge. For these reasons, the judgment must be reversed. 36 VII. THE TRIAL COURT ERRED BY IN- STRUCTING THE JURY ON FLIGHT AS EVI- DENCE 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 CON- DUCT. This Court has continued to express its confidence in the effi- cacy ofthe flight instruction, especially when employedto establish identity. Wehave explained that the flight instruction, as the jury would understand it, does not address the de- fendant’s specific mental state at the time of the of- fenses, or his guilt of a particular crime, but advises of circumstances suggesting his consciousness that he has committed some wrongdoing. (People v. Bolin (1998) 18 Cal.4th 297, 327 (Bolin); People v. Crandell (1988) 46 Cal.3d 833, 871 (Crandell).) Thus, the flight instruction—amply supported by evidence of de- fendant’s sudden departure for Mexico within days of Reyna’s disappearance—was manifestly relevant to the issue whether defendant held an honest belief that Reyna’s death was an accident for which he bore no criminal responsibility. In any event, we have repeatedly rejected the argument that instructions on consciousness of guilt, including instructions regarding the defendant’s flight following the crime, permit the jury to draw imper- missible inferences about the defendant’s mental state, or are otherwise inappropriate where mentalstate, not identity, is the principal disputed issue. (E.g., Jurado, supra, 38 Cal.4th 72, 125; People v. Moon (2005) 37 Cal.4th 1, 28 (Moon); People v. Smithey (1999) 20 Cal.4th 936, 983; Bolin, supra, 18 Cal.4th 297, 327; Crandell, supra, 46 Cal.3d 833, 871; People v. Nico- laus (1991) 54 Cal.3d 551, 579-580.) As we have 37 said, even where the defendant concedes some aspect of a criminal charge, the prosecution is entitled to bol- ster its case, which requires proof of the defendant’s guilt beyond a reasonable doubt, by presenting evi- dence of the defendant’s consciousness of guilt. (E.g., Moon, supra, at p. 28; Nicolaus, supra, at pp. 579- 580.) No reason appears to reconsider the soundness of these decisions and conclusions. We find noerror. (People v. Zambrano, (2007) 41 Cal.4th 1082, 1160, overruled on other grounds in People v. Doolin (2008) 45 Cal.4th 390, 421, fn. 22; italics in original, un- derlining added.) The Court of Appeal has expressed similar confidence in the flight instruction. ... [A] defendant’s conduct after a crime, in- cluding flight, is a relevant factor in determining his liability for aiding and abetting the crime. (People v. Jones [1980] 108 Cal.App.3d [9] at p. 15.) (People v. Garcia (2008) 168 Cal.App. 4th 261, 274.) These authorities demonstrate the efficacy of the instruction in focusing the jury’s attention on the defendant’s conduct after the offense. They also demonstrate the unfairness in reading an instruc- tion which focuses only on the defendant’s flight, and ignores simi- lar conduct by other suspects. Respondent’s argument in support of the instruction fails to address appellant’s argument that CALJIC 2.52 should not have been read at all in these circumstances. (See AOB 136-137.) An 38 attack on a jury instruction which was improperly read must be re- viewed even in the absence of an objection. (Penal Code § 1259: People v. Smithey (1999) 20 Cal.4th 936. 976, fn. 7: see Brown v. Payton (2005) 544 U.S. 133, 146.) Reading CALJIC 2.52, unaltered, unbalanced the jury’s con- sideration of the evidence, particularly in their assessment of Jesse Rangel’s credibility. Respondent seems to accept appellant’s cha- racterization of 2.52 as a pinpoint instruction; in the circumstances of this case, and especially in light of the prosecution guilt phase ar- gument, it is not hard to see the instruction as argumentative. (See People v. Wright (1988) 45 Cal.3d 1120, 1141.) The simple answer would have been notto readitall. A more challenging path would have been to fashion an in- struction which pointedto the flight of Jesse Rangel and Richard Di- az as well. This would have been an appropriate solution if chosen by the trial court. (See People v. Henderson (2003) 110 Cal.App.4th 737, 744.) The Henderson opinion treated such an instruction as ne- cessary only on request. But the Henderson court did not consider that a modified instruction might be the only solution, consistent with a reading of CALJIC 2.52, which does not create a burden- 39 shifting instruction. (Again, the Henderson solution does notarise at all if CALJIC 2.52 is simply omitted.) Where there is evidence of third-party culpability (as here), and where there is evidence of flight by the third party suspect (as here), a modified version of CALJIC 2.52 focusing on the third party suspect may be the only path out of the trial court’s dilemma. But solution of the dilemmais primarily the duty of the trial court. Since the instruction could be omitted entirely, it is not the defendant’s sole responsibility to solve the dilemma created by the use of CAL- JIC 2.52. Appellant was prejudiced. Respondent points to other evi- dence such as evidence that appellant “fled Madera” (RB 80), but that is circular reasoning where the flight instruction itself is chal- lenged. Respondentalso relies on the testimony of Richard Diaz, but he is one of the accomplices who fled. Evidence concerning the alibi tape and appellant’s efforts to dispose of the firearms only re- lates to appellant’s role as an accessory after the fact (see Argument XI) and notto his liability as a principal. For these reasons the objection to CALJIC 2.52 was not waived. The pinpoint instruction was argumentative in these cir- cumstances, and shifted the burden of proof away from the prosecu- tion, where it belonged. 40 VU. THE TRIAL COURT FAILED TO _IN- STRUCT SUA SPONTE ON THE LESSER IN- CLUDED OFFENSES OF VOLUNTARY MAN- SLAUGHTER AND INVOLUNTARY MAN- SLAUGHTER. Respondent correctly points out that Chuck Durbin legiti- mately exercised the right to defense of habitation, and appellant could not base an argument of imperfect self-defense on his per- ceived need to defend himself against Durbin. (See People v. Szad- ziewicz (2008) 161 Cal.-App.4th 823, 834.) Appellant wasnevertheless entitled to sua sponte jury instruc- tions on voluntary and involuntary manslaughter, based on evidence of intoxication and provocation or heat of passion. (See Taylor vy. Workman (10th Cir. 2009) 554 F.3d 879 [federal relief granted for failure to instruct on lesser-included non-capital offense of second degree murder].) In People v. Moye (2009) 47 Cal.4th 537, this Court recently dealt with asserted error in failure to instruct on heat of passion in a murder case. The victim in Moye had assaulted the defendant the night before. The next morning the defendant caught the victim kicking his car. He and his friends pursued the victim, and the de- fendant ultimately beat him to death with a baseballbat. 41 The defendant, however, testified that he was attacked again by the victim, and that he took the bat away from the victim. The defendanttestified that he acted strictly in self defense, and not from heat of passion or provocation based on events of the night before. This testimony was deemedto eliminate the basis for a jury instruc- tion on heat of passion. “In the face of defendant’s owntestimony, no reasonable juror could conclude defendant acted * “ ‘rashly or without due deliberation and reflection, and from this passion rather than from judgment...’ “ [citations]’ (Breverman, supra, 19 Cal.4th at p. 163) when, according to defendant, he responded to Mark’s at- tack with the baseball bat by grabbing the bat from him and usingit to defend himself from Mark’s continuing advances.” (/d. at 554.) The present case does not involve an abandonmentofthe heat of passion defense. To the contrary, defense evidence and argument stressed the trauma of his son’s shooting on appellant, and howit inflamed him onthe night of the Uribe/ Durbin shootings. Respondent characterizes these shootings as motivated by “retaliation” and “revenge,” and not by the fear of imminent harm to appellant’s family. Nevertheless, uncontraverted evidence estab- lished that appellant’s son was shot in the head two weeks prior to the shootings of Uribe and Durbin. 42 Respondent views two weeksas a sufficient cooling off pe- riod. To the contrary, the factions continued sniping at each other over the two weeksafter Little Pete was shot. Jesse Rangel and Tino Alvarez shot up Juan Uribe’s car. (4 RT 1097.) Juan Uribe and Chris Castaneda confronted Richard Diaz at a market, and Castaneda hit Diaz in the face. (5 RT 1340-1342.) The day before the murders Jesse Rangel was seen with gun under the seat of his jeep, and he said that he was going to “get even” with Juan. (8 RT 2088.) The homicidal dispute between Juan Uribe and Little Pete remained an open wound through the time of the Uribe/ Durbin shootings. Provocation or heat of passion may be supported by evi- dence of a dispute which extends over a period of time. (See People v. Wharton (1991) 53 Cal.4th 522, 571 [‘his defense theory attrial was that he killed after enduring provocatory conduct by the victim over a period of weeks’); contrast People v. Avila (2009) 46 Cal.4th 680, 706-707.) The provocation incited by the shooting of Little Pete did not dissipate in a short period of time. In the absence of police interven- tion, the two factions ratcheted up the violence. Emotions continued to run high, and the shootings at the Durbin house, particularly the shooting of Juan Uribe, were the result of this continuing provoca- tion. 43 Respondent argues that in any event there was no prejudicial error because the jury convicted on the greater offense of premedi- tated murder. (RB 85, citing People v. Abilez (2007) 41 Cal.4th 472, 516, People v. Gutierrez (2002) 28 Cal.4th 1083, 1145, and Schadv. Arizona (1991) 501 U.S. 624, 645-648.) The principle which respondentrelies on has limited applica- tion to this record. The authorities cited by respondent point out that the constitutional requirementofjury instructions on lesser included offenses is meant to guard against an “‘all or nothing” choice by the jury. (Schad v. Arizona, supra.) This concern is satisfied when the jury is given a lesser alternative such as second degree murder, but rejects it in favor of premeditated murder. (People v. Abilez, supra.) It would serve no clear purpose to require instructions on yet another lesser included offense such as manslaughter, which merely contains a subset of the elements of second degree murder. This principle does not apply to this record because the ele- ment of provocation, which would have been introduced through an instruction on voluntary manslaughter, does not appear in the jury instructions at all. It was not implicitly rejected by the first degree murder verdict. If the jury had been instructed on voluntary man- slaughter through heat of passion, they would have been confronted 44 with an entirely new set of considerations, considerations not ad- dressed by theinstructions and findings on first and second degree murder. To illustrate this point, it is worth recalling that CALJIC 8.73. which would have directed the jury to consider provocation on the issue of premeditation,'*? was not read to this jury. (See People v. Avila, supra 46 Cal.4th at 707-708.) The issue of provocation was not presented in these jury instructions. Thus, voluntary manslaugh- ter through provocation was notan issue necessarily decided against appellant by the first degree murder verdict. Self-defense did not figure into the defense case at trial. Therefore, unlike the situation in People v. Moye, supra,'* there was no implied rejection of the evidence supporting the heat of passion 8 “If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to man- slaughter, you should consider the provocation for the bearingit may have on whether the defendant killed with or without deliberation and premeditation.” 4 “Once the jury rejected defendant’s claims of reasonable and imperfect self-defense, there was little if any independent evidence remaining to support his further claim that he killed in the heat of passion, and no direct testimonial evidence from defendant himself to support an inference that he subjectively harbored such strong passion, or acted rashly or impulsively while underits influence for reasons unrelated to his perceived need forself-defense.” (47 Cal.4th at 557.) 45 instruction. Prejudice must be evaluated in view of the abundant evidence of provocation. Whether shooting the defendant’s son in the head was an act of provocation wasat least an arguable issue on this record. There wassubstantial evidence of provocation. The issue was not resolved against appellant by the verdict on greater offenses whose definitions failed to mention or take into account the question of provocation. Appellant has argued that the standard of review for federal constitutional error must apply in these circumstances. (AOB 141, citing Chapman v. California (1967) 386 U.S. 18.) Respondent also adopts the Chapmanstandard. (RB 85, citing Neder v. United States (1999) 527 U.S. 1.) The Chapman standard is necessary in these cir- cumstancesbecausein the absence ofinstructions on heat of passion, the state trial court failed to adequately define the offense to the jury. (See dissenting opinions of Justice Kennard in People v. Moye, su- pra, 47 Cal.4th at 563, and People v. Breverman (1998) 19 Cal.4th 142, 194.)”° Is The majority opinion in Moye concluded that (unlike here) the question of the standard of review had not been adequately raised in briefing. “Accordingly, the claim must properly await a case [such as the present case] in whichit has been clearly raised and ful- ly briefed.” (People v. Moye, supra, 47 Cal.4th at 558, fn. 5.) 46 For these reasons appellant was prejudiced by the lack of manslaughterinstructions, and the conviction must be reversed. 47 IX. THE TRIAL COURT FAILED TO INSTRUCT SUA SPONTE ON THE PRINCIPLES OF AC- COMPLICE TESTIMONY, AS APPLIED TO THE OUT-OF-COURT STATEMENTS OF AP- PELLANT’S SON AND CO-DEFENDANT. Respondent agrees that Little Pete was an accomplice as a matter of law. Respondent denies, however, that Jesse Rangel was an accomplice. (RB 88.) Jesse Rangel was an accomplice because he was subject to prosecution for the same offenses charged against appellant. Jesse sought revenge for the shooting of Little Pete; he participated with Tino Alvarez in the fusillade directed at Juan Uribe’s car. (4 RT 1086, 1100.) Jesse was identified by Cindy Durbin as one of the shooters (6 RT 1397, 1437); despite her recantation, this identifica- tion was fully admissible as evidence of Jesse’s guilt (see Evidence Code § 1235). Beyond that, Jesse fled Madera, then fled California, shortly after the shootings; this was substantial evidence of guilt (see Argument VII above). In these circumstances the accomplice distrust and corrobora- tion instruction was necessary. This Court has held that even a statement against penalinter- est may be excluded if its trustworthiness is sufficiently in doubt. (See People v. Geier (2007) 41 Cal.4th 555, 584.) The trial court 48 may find that a statement against penal interest is not trustworthy, and therefore not admissible as a statement against interest, even if no independent evidence affirmatively shows untrustworthiness. (People v. Frierson (1991) 53 Cal.3d 730, 744-746.) Respondent takes the position that an out-of-court statement against penalinterest uttered by an accomplice (Little Pete) is neces- sarily more reliable than the same statement made by the accomplice whentestifying under oath. In this way, respondent seeks to recon- cile the holding of People v. Coffman and Marlow (2004) 34 Cal.4th 1, 105-106, with that of People v. Brown (2003) 31 Cal.4th 518, 555-556. This Court’s holding in Brown should not beso interpreted, in part because it would set evidence law on its head. Considerations of confrontation necessarily imply that sworn in-court statements, though impeachable, are morereliable at the outset than out-of-court statements. As stated in Crawford v. Washington (2004) 541 U.S. 36, 62, Admitting statements deemed reliable by a judge is fundamentally at odds with the right of con- frontation. To be sure, the Clause’s ultimate goalis to ensure reliability of evidence, butit is a procedural ra- ther than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be as- sessed 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 49 evidence (a point on which there could belittle dis- sent), but about how reliability can best be determined. [Citations. ] Bythis test, an out-of-court statement which is not subject to cross- examination can never be deemed automatically more reliable than an in-court statement which is subject to cross-examination.'° Anything in the Brown opinion (2003) which appearsto ele- vate the reliability of out-of-court statements abovethe reliability of in-court statements should be re-evaluated in the light of the Su- preme Court’s later opinion (2004) in Crawford v. Washington, su- pra. Whether an accomplice distrust and corroboration instructionis necessary should be evaluated under the standard expressed in People v. Coffman and Marlow, supra, regardless of whether the ac- complice statements were uttered in court or out of court. It makes no difference whether the purported statement of Little Pete was “testimonial” or not.’ The instructional requirement '6 With respect to statements against penal interest specifically, see Lilly v. Virginia (1999) 527 U.S. 116, 134 (plurality opinion) [“[A]ccomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule’’}. "7 See People v. Garcia (2008) 168 Cal.App.4th 261, 283: “The People suggest there was no Aranda/Bruton error because none of Garcia’s out-of-court statements in question were testimonial—i.e., none were made under circumstances that would lead an objective witness to believe they would be available for use at a later trial. The People rely on Crawford v. Washington (2004) 541 U.S. 36, 53- 54 (Crawford), in which the United States Supreme Court held that 50 stems from Penal Code § 1111 and not directly from the Confronta- tion Clause. The error here was prejudicial because Jesse Rangel’s status as an accomplice was insufficiently taken into account by the jury instructions, because the accomplice statement of Little Pete was un- trustworthy given its source in Jesse Rangel’s testimony, and be- cause the entire prosecution case grew from Jesse Rangel’s claim that Little Pete made a detailed confession to him. the Sixth Amendmentbars ‘admission of testimonial statements of a witness whodid not appearattrial unless he was unavailable totesti- fy, and the defendant ... had a prior opportunity for cross- examination.’ (Italics added.) Whether the Aranda/Bruton rule ap- plies only to extrajudicial testimonial statements appears to be an unsettled question, and one that we need not address in this case. We note, without citation or reliance, that there is inconsistency in unpublished California appellate court opinions on the issue. We also note the federal Third Circuit Court of Appeals has ‘interpreted Bruton expansively, holding that it applies not only to custodial con- fessions, but also when the statements of the non-testifying co- defendant were made to family or friends, and are otherwise inad- missible hearsay.” (U.S. v. Mussare (3d Cir. 2005) 405 F.3d 161, 168.)” 51 X. THE CONVICTION ON COUNT TWO, MURDER OF JUAN URIBE, MUST BE RE- VERSED BECAUSE THE TRIAL COURT FAILED TO READ A JURY INSTRUCTION ON THE EFFECT OF VOLUNTARY INTOXICA- TION ON THE ELEMENT OF SPECIFIC IN- TENT TO AID AND ABET. Respondent acknowledgesthat there was substantial evidence of intoxication, and that evidence of intoxication was relied on by the defense in an effort to raise a doubt on the key element ofpre- meditation. Respondent implicitly acknowledges that appellant was convicted as an aider and abettor to the murder of Juan Uribe. Res- pondent argues, however, that the instruction relating evidence of voluntary intoxication to the element of specific intent to aid and abet the perpetrator is a pinpoint instruction, that it need only be giv- en on request of the defendant, and that the absence of a request amounts to a waiver. Assuming for the purpose of argument that the instruction re- lating voluntary intoxication to aider and abettor liability (CALJIC 4.21.2) is not required sua sponte, there was ample demandfor the instruction on this record. First, a partial instruction relating evidence of intoxication to the element of premeditation was read. The instruction, however, was limited to the element of premeditation and deliberation; it did 52 not extend to mentalstates in general.'* (Compare People v. Castillo (1997) 16 Cal.4th 1009, 1016-1017, in which CALJIC 4.21 was worded to refer to “mental states” in general, and thus included pre- meditation; no error to fail to modify the instruction sua sponte to apply specifically to premeditation.) The reading of a partial instruction, which omits a key ele- ment, is enough to satisfy the requirement for a “pinpoint” request. See People v. Castillo, supra, 16 Cal.4th at 1015 (emphasis added): Even if the court has no sua sponte duty to in- struct on a particular legal point, when it does choose to_instruct, it must do_so correctly. “Although we might hesitate before holding that the absence of any instruction on voluntary intoxication in a situation such as that presented in this case is prejudicial error, when a partial instruction has been given we cannot but hold that the failure to give complete instructions was pre- Judicial error.” (People v. Baker (1954) 42 Cal.2d 550, 18 CALJIC 4.21: “In the crimes of murderin the first degree and attempted murderofthe first degree, a necessary elementis the existence in the mind of the defendant of the mental state of preme- ditation. “If the evidence showsthat the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required mentalstate. “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 mentalstate.” (12 CT 2657; 9 RT 2262; emphasis added. CALJIC 4.21 does not appear on the list of prosecution re- quested instructions, 12 CT 2697.) 53 575-576, and quoted in People v. Saille, supra, 54 Cal.3d at p. 1119.) Partial instructions were read on voluntary intoxication,relat- ing voluntary intoxication to premeditation but not to the shared in- tent to commit a crime whose natural and probable consequence was the death of Juan Uribe; the trial court was therefore under a duty to give complete instructions even in the absence of a request. Second, the defense made known its request for instructions on voluntary intoxication (CALJIC 3.01, 3.02, 4.21). The issue was squarely before the trial court. It is the trial court which hasthe re- sponsibility for giving complete and correct instructions, a responsi- bility that cannot be abdicated to counsel. (See Brown v. Payton (2005) 544 U.S. 133, 146.) Third, the jury made knownits confusion on the relationship of intoxication to the necessary mental states. The jury note read, “Clarification of a law, CALJIC 3.02, 3.01. Intoxication considera- tion.” (10 RT 2292.) Thetrial court was obliged to answer the ques- tion pursuant to People v. Mendoza, supra; instead the trial court re- read CALJIC 4.21, which the jury had already heard and which had failed to answertheir question. Evidently, the jury could not determine whether voluntary in- toxication was relevant to the anticipation of the natural and proba- 54 ble consequences ofthe acts of a co-defendant. That was an issue of some controversy, which had only been decided shortly before ap- pellant’s trial began. (See People v. Mendoza (1998) 18 Cal.4th 1114.) The trial court was obliged to answer the jury’s question consistent with Mendoza, quite apart from any issue of whethertrial counsel had made an adequate request for a pinpoint instruction. Respondent (RB 93) argues that the instruction on aider and abettor liability for “natural and probable consequences” (CALJIC 3.02) was limited to the charge of attempted murder of Cindy Dur- bin, which was assertedly a natural and probable consequence of “the commission of the crime of murder.” (12 CT 2648.) True, CALJIC 3.02 included language whichreferred to the attempted murder of Cindy Durbin. But CALJIC 3.02 wasnot li- mited to the attempted murder charge. Rather, it applied to all charges in the information: “One whoaids 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 whichis a natural and probable consequence of the crime originally aided and abet- ted.” (12 CT 2648.) This instruction was not limited to the Cindy Durbin attempted murder charge. 55 The jury asked for instruction on the relationship between evidence of intoxication and aider and abettor liability, specifically under CALJIC 3.02. Their question clearly embraced the possibility that appellant might be deemed guilty of the murder of Juan Uribe, based not on “traditional” aider and abettor liability (CALJIC 3.01), but on the doctrine of natural and probable consequences(3.02). Since the standard instruction (4.21) failed to connect intoxi- cation with aider and abettor liability under the natural and probable consequences doctrine, it was misleading to simply read it again in responseto the jury’s question. The jury probably convicted appellant of the murder of Juan Uribe as a “natural and probable consequence”of the invasion of the Durbin home, and without consideration of evidence of voluntary intoxication. Indeed, since that connection had only recently been an issue of controversy, pending the Mendoza opinion,there is every likelihood that the jury’s confusion produced the first degree murder verdict in Count2. For these reasons, appellant was prejudiced by the lack ofac- curate instructions, and the conviction on Count 2 must be reversed. 56 XI. THE TRIAL COURT ERRED BY FAILING TO CONSIDER A JURY INSTRUCTION ON ACCESSORY AS A LESSER-RELATED OF- FENSE. Appellant argues that this Court in People v. Birks (1998) 19 Cal.4th 108 overruled its prior decision in People v. Geiger (1984) 35 Cal.3d 510; that as a result of Birks, instructions on lesser related offenses are no longer mandatory at the request of the defense: that the Birks opinion does not howeverpreclude trial court discretion to instruct on lesser related offenses, even over the objection of the prosecution; that the Birks opinion did not determine whether such discretionary trial court authority would violate the separation of powers doctrine; that such discretionary trial court authority to in- struct on lesser related offenses would not violate the separation of powers doctrine; that substantial evidence in this case supported an instruction on accessory (Penal Code § 32); and that appellant was prejudiced by the refusal to instruct on accessory as a lesser related offense. In addition, the failure to read lesser related offense instruc- tions, like the failure to read lesser included offense instructions, should be deemed a violation of federal due process. (Beck v. Ala- bama (1980) 447 U.S. 625, 637; Schad v. Arizona (1991) 501 U.S. 624.) 57 Respondent attempts to finesse this argument by casually claiming, incorrectly, that the Birks opinion rejected appellant's claim. (RB 96.) Indeed, respondent asserts that the separation of powers issue was“fully addressed” in Birks, and that this Court “has not since disavowed it even if some members ofthis Court felt the discussion unnecessary to the result.” Respondentoffers noprecise citation for this characterization of Birks, which in fact did not reach a final conclusion on the trial court’s discretion to instruct on lesser related offenses (as opposed to the defendant’s right to insist on such instructions). The following passage contains the entire discussion of the issue in the majority opinion. One final consideration influences us to retreat from Geiger’s holding that the California Constitution grants criminal defendants an affirmative right to insist upon consideration of uncharged and nonincluded of- fenses over the prosecution’s objection. Despite the Geiger majority’s contrary conclusion, a serious ques- tion arises whether such a right can be reconciled with the separation of powers clause of the same document. The California Constitution (art. IH, § 3) pro- vides that “[t]he powers of state governmentare legis- lative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” It is well settled that the prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public of- fenses and what charges to bring. (E.g., People v. Eu- 58 banks (1996) 14 Cal.4th 580, 588-589; Dix v. Superior Court (1991) 53 Cal.3d 442, 451.) This prosecutorial discretion to choose, for each particular case, the ac- tual charges from among those potentially available arises from “ ‘the complex considerations necessary for the effective and efficient administration of law en- forcement.” (People v. Keenan (1988) 46 Cal.3d 478. 506, quoting People v. Heskett (1982) 30 Cal.3d 841, 860.) The prosecution’s authority in this regard is founded, among other things, on the principle of sepa- ration of powers, and generally is not subject to super- vision by the judicial branch. (People v. Wallace (1985) 169 Cal.App.3d 406, 409; People v. Adams (1974) 43 Cal.App.3d 697, 708; see also Taliaferro v. Locke (1960) 182 Cal.App.2d 752.) In his Geiger dissent, Justice Richardson argued vigorously that allowing a defendant to dictate the consideration of crimes neither charged nor necessarily included in the charge violates these principles. Quot- ing an earlier Court of Appeal opinion by Justice Fein- berg, Justice Richardson reasonedthat “ ‘[t]o hold that a defendant can require that a jury be told that he can be convicted of crime XK when he has been charged with crime Y, a charge that does not necessarily in- clude crime X, is to hold that the defendant, in effect, has the power to determine what crime he is charged with, a power that resides exclusively with the prose- cution.’” (Geiger, supra, 35 Cal.3d 510, 533 (dis. opn. of Richardson, J.), quoting People v. West (1980) 107 Cal.App.3d 987, 993, italics added by Geiger.) [fn. 18.] [fn. 18] Lesser necessarily included offenses do not present a similar problem, because the prosecution understands that when it chooses to charge the greater offense, it is by definition charging the elements of every lesser offense necessarily included therein. Hence,byits selection of the stated charge, the prose- cution has retained the exclusive power to determine the specific crime or crimes which maybepresented to the jury. [end footnote] 59 The Geiger majority rejected this argument on the premise that once the prosecution has had a “full opportunity to exercise [its] charging powers,” and the case is at issue, the process, including the instructions, by which the defendant’s guilt or innocenceis thereaf- ter determined are exclusively judicial matters. (Geiger, supra, 35 Cal.3d 510, 530.) The majority (id. at pp. 529-530) relied heavily on broad language to that effect in People v. Tenorio (1970) 3 Cal.3d 89, 94 (Tenorio). But Tenorio, like our more recent decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), concerned only the established judicial power to dispose of charges and sentencing al- legations the prosecution has chosen to submit. Nei- ther of these decisions stands for the proposition that a court, upon the defendant’s demand, may add new charges without the prosecution’s consent. Despite the Geiger majority’s contrary conclusion, the concern arises that whether additional nonincluded offenses are judicially injected at the pleading stage, or during the trial itself, the prosecutorial discretion to control the charges is equally undermined. We need not finally resolve the separation of powers issue here. It is enough to invoke the estab- lished principle that when reasonably possible, courts will avoid constitutional or statutory interpretations in one area which raise “‘serious and doubtful constitu- tional questions’” (Romero, supra, 13 Cal.4th 497, 509, quoting Miller v. Municipal Court (1943) 22 Cal.2d 818, 828) in another. Our recent Romero decision applied this prin- ciple where an issue of statutory construction impli- cated the separation of powers clause. In Romero, we faced a provision that might or might not be readto re- quire the prosecutor’s approval before the court could exercise, in a Three Strikes case, its general statutory authority to dismiss a sentencing allegation in further- ance of justice. In order to free the Three Strikes sta- tute from constitutional doubt, we adopted thelatter in- terpretation, noting the rule of Tenorio and its progeny that the Legislature cannot adopt laws giving the pros- 60 ecutor powerto “veto... judicial decisions related to sentencing or other disposition of criminal charges.” (Romero, supra, 13 Cal.4th 497, 512, italics added.) Romero thus supports the principle that the powerto dispose of chargesis judicial in nature, but as explained above, it is ordinarily the prosecution’s function to select and propose the charges. Hence,se- paration of powersdifficulties may arise, as they did in Romero, from a constitutional interpretation that re- quires a judicial officer, acting at the defendant’s un- ilateral insistence, to add lesser nonincluded offenses which the prosecution has chosen to withhold in the exercise of its charging discretion, and to which it ob- jects. This substantial concern additionally informs our conclusion, contrary to Geiger, that the California Constitution should not be construed to grant criminal defendants an affirmative right to insist on jury con- sideration of nonincluded offenses without the prose- cutor’s consent. (19 Cal.4th at 134-136; underlining add- ed; italics in original.) The first problem with citing the Birks opinion as final au- thority on the separation of powersissueis that the opinionitself ex- pressly declines to settle the issue. (“We need notfinally resolve the separation of powers issue here.”) Consequently, this portion ofthe 19opinion is dicta.” At most the opinion raises a “serious question” "9 “A decision ‘is not authority for everything said in the... . opinion but only “for the points actually involved and actually de- cided.” [Citations.]’ (Santisas v. Goodin (1998) 17 Cal. 4th 599, 620.) ‘[O]nly the ratio decidendi of an appellate opinion has prece- dential effect [citation]... .’ (Trope v. Katz (1995) 11 Cal.4th 274, 287.) Thus, ‘we must view with caution seemingly categorical di- rectives not essential to earlier decisions and be guided bythis dic- 61 whether mandatory instructions on lesser related offenses at defense request can be reconciled with the separation of powers doctrine. The second problem with reliance on the Birks dictum in this context is that it only addresses the mandatory obligation to instruct on lesser related offenses, as embodied in Geiger. (“ ...an affirma- 99, 66tive right to insist...’’; “...allowing a defendant to dictate...”; *...the defendant. in effect, has the power...”“...upon the defendant's de- mand...”; “...the defendant’s unilateral insistence...”; “...an affir- mative right to insist....”) Even as quoted, the Birks dictum does not address the separate question of whetherthe trial court has the non- mandatory discretion to instruct on lesser related offenses. For these reasons, this Court has barely hinted at the issue of separation of powers as related to the trial court’s discretion to in- struct on lesser related offenses”’; the issue was certainly not ad- dressed directly in Birks, even in the quoted discourse commenting tum only to the extent it remains analytically persuasive.’ (Marks II, supra, | Cal.4th at p. 66.) “For several reasons, we do not find McDonala’s dictum analyti- cally persuasive....” (People v. Mendoza (2000) 23 Cal.4th 896, 915.) 20 See People v. Rundle (2008) 43 Cal.4th 76, 144 [understrict elements test, assault is not a lesser included offense of attempted rape, and trial court has no sua sponte duty to instructonit]. 62 on the constitutional dimensions of the post-Geiger mandatoryin- struction debate. To eliminate the trial court’s discretion to instruct on lesser related offenses supported by the evidence would violate the separa- tion of powers doctrine of the state constitution (Cal. Constitution, art. III, § 3)°' and the United States Constitution.” This Court has drawn the line separating prosecution authori- ty from judicial authority at the charging or pre-filing phase. The prosecutor mayso structure the criminal charge as to eliminate judi- cial discretion over the ultimate sentencing options available to the trial court. For instance, by charging a juvenile in adult court the prosecutor may eliminate thetrial court’s ultimate discretion to sen- tence to the Youth Authority. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 556.)° This authority is contrasted to the disposi- | “The powers of state governmentare legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitu- tion.” * See Coolidge v. New Hampshire, 403 U.S. 443 (1971). The separation of powers doctrine is implicit in the Constitution. It is traced to the Federalist Papers, no. 47, and by the authors of the Fe- deralist Papers to the Baron de Montesquieu, L ‘Esprit des Lois. 3 “A consideration of the statutory changes effected by Propo- sition 21, however, establishes that the legislative branch has elimi- nated the judicial power upon whichpetitioners base their claim. It 63 tion phase; there it is deemed unconstitutional to fetter the judicial authority, for instance by requiring prosecutor approval and thus conditioning the trial court’s authority to strike a prior conviction allegation in a mannerto reduce the sentence which would otherwise be imposed on a repeat offender. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) is true that, prior to the enactment of section 707(d), section 707 provided that the juvenile court, after a hearing, made the decision whether certain minors charged with particular offenses were fit for treatment under the juvenile court law or instead could be charged and sentenced in criminal court. (See Edsel P. v. Superior Court (1985) 165 Cal. App. 3d 763, 786 [fitness determination constitutes a judicial function].) Now, however, with regard to minors within the scope of section 707(d), the statute confers upon the prosecutor the discretion to determine whether accusations of criminal conduct against the minor should be filed in the juvenile court or criminal court. If the prosecutor initiates a proceeding in criminal court, and the circumstances specified in section 707(d) are found to be true, the court generally is precluded by statute from ordering a juvenile disposition. (Welf. & Inst. Code, § 1732.6, subd. (b)(2); see Pen. Code, §§ 1170.17, 1170.19.) “The prosecutor’s discretionary charging decision pursuant to section 707(d), which thus can limit the dispositional alternatives available to the court, is no different from the numerousprefiling decisions made by prosecutors (e.g., whether to charge a wobbler as a felony, or whether to charge a particular defendant with assault, assault with a deadly weapon, or another form of aggravatedassault, or whether to charge manslaughter or murder, or whetherto allege facts that would preclude probation eligibility [Pen. Code, § 1203.06 et seq.]) that limit the dispositions available to the court after charges have been filed. Conferring such authority upon the prosecutor does not limit the judicial power, after charges have been filed, to choose among the dispositional alternatives specified by the legislative branch....” 64 The Manduley opinion makesclear that the charging decision is within the prosecutor’s purview, as contrasted to trial determina- tions, particularly those that have not been excluded from judicial authority by relevant legislation: In Davis, supra, 46 Cal.3d at pages 81-86, we distinguished a line of decisions that invalidated statu- tory provisions purporting to give a prosecutor the right to veto decisions made by a court after criminal charges had beenfiled. (E.g., People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59 (On Tai Ho) [district attorney could not disapprove trial court’s decision, following a hearing, to grant diversion]; Esteybar v. Municipal Court (1971) 5 Cal.3d 119 [district attorney could not veto magistrate’s decision to reduce a wobb- ler to a misdemeanor]; People v. Tenorio, supra, 3 Cal.3d 89 [district attorney could not precludetrial court from exercising discretion to strike an allegation of a prior conviction for the purpose of sentencing].) Such decisions are based uponthe principle that once the decision to prosecute has been made, the disposi- tion_of the matter is fundamentally judicial in nature. A judge wishing to exercise judicial powerat the judi- cial stage of a proceedingnever should be required to “ ‘bargain with the prosecutor’’’ before doing so. (Davis, supra, 46 Cal. 3d at p. 83.) Charging decisions made before the jurisdiction of a court is invoked and before a judicial proceedingis initiated, on the other hand,in- volve purely prosecutorial functions and do not limit judicial power. (/d. at p. 86.) This court recently reite- rated these principles when we construed a provision of the “Three Strikes” law (Pen. Code, § 667, subd. (f)) not to require the prosecutor’s consent before tri- al court could exercise its authority at sentencing to strike a prior-felony-conviction allegation pursuant to Penal Code section 1385. (Romero, supra, 13 Cal.4th at pp. 509-517.) (Manduley v. Superior Court, supra, 27 Cal.4th at 554; emphasis added.) 65 Since the decision whether to instruct on lesser related offenses is a decision whicharises during the trial and in view ofall the evidence, it is properly within the scope ofjudicial authority. It would violate the separation of powers doctrine to abrogate judicial authority over this determination. The issue presented here — the extent of judicial authority to instruct on lesser related offenses — falls well after the charging deci- sion is made. In the course ofa trial evidence may well emerge that justifies instruction on lesser offenses which the prosecutor may have deliberately chosen not to chargeprior to trial. Thus, there are recurrent disputes over the quantity of evidence sufficient to warrant an instruction on lesser included offenses. (See People v. Reed (2006) 38 Cal.4th 1224, 1229 [lesser included offenses determined only by statutory elements test, not by accusatory pleadings test, which would include prosecutor’s non-statutory allegations in the charging document]; People v. Breverman (1998) 19 Cal.4th 142, 156, 160 [trial court’s duty to instruct on lesser included offense de- termined by “substantial evidentiary support” and by arguments of counsel].) The decision to instruct on lesser included offenses, ad- vocated or opposed byoneside or the other, is a quintessential judi- cial function. 66 Moreover, thetrial court has a superior vantage point to judge whether submitting a lesser related offense to the jury will serve the interests of justice. The prosecution case on the charged offense may beat risk of an acquittal, whereas conviction on a lesser related offense may beentirely justified on the basis of the evidenceattrial. And yet, acquittal on the greater offense may bar a retrial on the properlesser related offense: the lesser related offense may have the same intent and objective as the greater offense, thus barring retri- al,’ which could have been avoided if the lesser related offense al- ternative had been presented to the initial jury. Or, the lesser related offense may share an element in commonwith the charged offense; in that eventretrial on the lesser offense following acquittal would be barred by constitutional principles of double jeopardy.” The van- “4 See Penal Code § 654 (a): “An act or omission that is punish- able in different ways by different provisions of law shall be pu- nished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be pu- nished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” And see Sanders v. Superior Court (1999) 76 Cal.App.4th 609 [defendant convicted of grand theft; con- viction reversed on appealfor insufficient evidence; prosecution for same conductas forgery (a related offense) is precluded by section 654]. 2S See Yeager v. United States (2009) 129 S.Ct. 2360, 2368- 2369: if a certain element “was a critical issue of ultimate fact” in the original charge against the defendant, “a jury verdict that neces- 67 tage point of the trial court is superior to the narrow view ofan ad- vocate (prosecutor or defense counsel), and permits the court to as- sess the actual evidenceat trial with an eye to the ultimate interests of justice. The trial court can and should exercise its discretion to instruct in such circumstances, whetherthe lesser offense is included or related. (See People v. Barton (1995) 12 Cal.4th 186, 204 [where acquittal on the charged offense is a real possibility, trial court may instruct on lesser included offense supported by the evidence, even over objection of the defendant].”°) Again, this has nothing to do with the defendant’s former right to insist on lesser related instruction, which wasrejected in the Birks opinion. Thefinal determination of the question of whether to sarily decided that issue in his favor protects him from prosecution for any charge for whichthat is an essential element.” *6 “In this case, defendant wasprepared to roll the dice in a high stakes game of chance,betting that the jury, faced with the choice of convicting him of murder or acquitting him entirely, would find him not guilty. If successful, this gamble would have served defendant's interests. It would not, however, have served the interests of justice, for it would have denied the jurythe chance to consider the possi- bility, between the extremes of a murder conviction and an acquittal, that defendant was guilty of voluntary manslaughter, a lesser offense included in murder.” (/bid.; emphasis added.) 68 instruct on lesser related offenses is unquestionably a judicial func- tion, not a matter of prosecutorialfiat.?’ The decision whether to instruct on a lesser related offense, where the prosecution cannot claim unfair surprise, is essentially a matter of insuring a fair trial to both parties; insuring a fair trial is the gist of the Birks opinion. Insuring a fair trial is a core judicial function. “When the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judi- cial in nature.” (Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 128 [court’s exercise of discretion to designate offense as misde- meanorin holding orderis a judicial function].) 27 Appellant is aware of the observation in footnote 18 of the Birks dicta, quoted above: “Lesser necessarily included offenses do not present a similar problem, because the prosecution understands that when it chooses to charge the greater offense, it is by definition charging the elements of every lesser offense necessarily included therein. Hence,by its selection of the stated charge, the prosecution has retained the exclusive power to determine the specific crime or crimes which maybepresentedto the jury.” Appellant suggests that this reasoning should be reconsidered: the prosecution does not by definition charge “the elements of every lesser offense necessarily included therein”; the charge includes only those lesser included offenses which are supported by substantial evidence which emergesattrial. (People v. Breverman, supra.) The lesser included offenses submitted to the jury are ultimately deter- mined by the trial court based on the evidence, not solely by the prosecutoras part of the charging function. The sameshould be true of instructions on lesser related offenses. 69 Wherethere is substantial evidence of a lesser related offense, and a lesser related offense instruction creates no unfair surprise to the prosecution, as here, the issue is not whether the prosecutor's charging discretion has been infringed but whether the trial court’s ability to guarantee a fair trial has been hamstrung in violation of the eeConstitution. “... [T]he issue whether a poweris judicial in nature depends not on the procedural posture of the case but on the sub- stance of the power and the effect of its exercise.” (People v. Supe- rior Court (On Tai Ho) (1974) 11 Cal.3d 59, 68 [statutory require- ment of consent of prosecutor to diversion program held unconstitu- tional] yy 8 See also the following observation in People v. Thomas (2005) 35 Cal.4th 635, 641-642 (emphasis added): “The discretion that Penal Code section 1170.19, subdivision (a)(4), grants to a criminal court to order a juvenile disposition in some cases where the prosecutor has filed charges directly in crimi- nal court indisputably constitutes a judicial responsibility. (See Da- vis v. Municipal Court, supra, 46 Cal.3d at p. 83.) Like the statutes in Tenorio and its progeny, section 1170.19, subdivision (a)(4), au- thorizes ‘the exercise of a prosecutorial veto after the filing of crimi- nal charges, when the criminal proceeding has already come within the aegis of the judicial branch.’ (Davis v. Municipal Court, supra, at p. 83.) Thus, the requirement_of section 1170.19, subdivision (a)(4), that the criminal court must secure the prosecutor’s consent before it can order a Youth Authority commitment violates the state Constitution’s separation of powers doctrine. (Cal. Const., art. III, § 3.)” 70 There appearsto belittle question on this record that the evi- dence would support an accessory instruction: respondent does not raise any such concern. Appellant clearly had the intent to aid his son in avoiding criminal charges, in hiding the weapons, creating a false alibi tape, and taking him to motels and then to anotherstate to avoid prosecution. ”” The question of prejudice (also not discussed by respondent) revolves in part around the preclusive effect of the jury’s verdict of first degree murder on both counts. (See discussion in Argument VIII above.) Since being an accessory is not a lesser included offense of murder, it necessarily includes elements which are not presentin the murder charge. Since the elements of accessory were not resolved, and could not be resolved, solely as part of the murder charge, the murder conviction does not automatically render the accessory in- struction irrelevant, and does not cure the error or renderit harmless. * Forcontrast, see People v. Whisenhunt (2008) 44 Cal.4th 174, 212: “Thetrial court ultimately refused the requested instruction be- cause the evidence did not show that defendant had the intent re- quired to be an accessory at the time he made the statements, and because the evidence on which he wasrelying was exculpatory. The court noted, however, that defense counsel was free to argue to the jury that the evidence at most showed that defendant was guilty of being an accessory—an uncharged offense—and that defendant should therefore be acquitted. Defense counsel did not present this argument in summation.” (Emphasis added.) 71 The standard of review for federal constitutional error should be ap- plied in these circumstances. (See discussion at pp. 141 and 197 of Appellant’s Opening Brief.) There was room for substantial doubt over appellant’s role in this offense. His identity as one of the shooters swung on the self- serving testimony of Jesse Rangel, buttressed by the accomplice tes- timony of Richard Diaz, and boosted again when Cindy Durbin changed her statement to conform to theirs.°° The jury could well have viewedall of this as a house of cards. The remaining evidence was consistent with accessory liability. Appellant was prejudiced by the trial court’s refusal to even consider the reading of instructions on accessory liability. If the ac- 30 Compare People v. Rundle (2008) 43 Cal.4th 76. The defen- dant there changedhis story from the account givenin police inter- rogation, versus his testimonyat trial. This Court held that it was not misconductfor the prosecutor to argue that the defense team was involved in a conspiracy to fabricate evidence. This Court deter- mined that it was reasonable to conclude that the defendant lied in his testimony, and “to the extent the statements swept counsel up in defendant’s asserted lies, this was not an improper commentin the context of this case, in which defendant’s story changed drastically during trial preparations.” (/d. at 163; emphasis added.) Here, the shoe is on the other foot; needless to say, a similar comment could be made about Cindy Durbin’s changed testimony on the very day of the preliminary hearing, and her relationship to the prosecution effort in this case. To paraphrase, “to the extent the statements swept up the prosecutor in the witness’ asserted lies, this was not an improper commentin the context of this case, in which the witness’ story changeddrastically during trial preparation.” 72 cessory instructions had been properly considered by the trial court. they would have been read. Properly instructed, the jury would have likely adopted accessory as an alternative to the murder verdict, on which the evidence was questionable. The conviction must be re- versed. 73 XII. THE PROSECUTOR COMMITTED MIS- CONDUCT BY ARGUING TO THE JURY THAT MURDER, INCLUDING IMPLIED MALICE SECOND DEGREE MURDER, MUST BE AC- COMPANIEDBYANINTENTTO KILL. Asto the prosecutor’s confused argument over malice as in- tent to kill (omitting implied malice) and his reference to “implied intent,” respondent argues that any error was waivedbya failure to object. The requirement of an objection in this extremely delicate area would be an unreasonable burden on the defense. The defense wasconstrained by the fact that its main focus was on the lack ofre- liable evidence of identity. Defense counsel was reluctant to even mention the partial defense of intoxication. To object to an errone- ous argument on the elements of murder would appear to concede identity. This consideration should be accepted as an exception to the objection requirement. The prosecutor’s argument informed the jury that malice equals intent, therefore all murder is based on intentional killing. However, implied malice murder is a general intent crime. This Court so held in its opinion in People v. Rogers (2006) 39 Cal.4th 826, 872-873: 74 We agree with defendant that the instruction given regarding the concurrence of act and specific in- tent was erroneous. The trial court gave a modified concurrence instruction, CALJIC No. 3.31, stating: “In each ofthe crimes charged in counts one and two and in the crime of voluntary manslaughter there must _ex- ist_a_union or joint operation of act or conduct and a certain specific intent_in the mind of the perpetrator. and unless such specific intent exists the crime to which it relates is not committed. [{] The specific in- tent required is included in the definitions of the crimes charged. However, the crime of murder re- quires the specific intent to unlawfully kill a human be- ing, and the crime of voluntary manslaughter requires the specific intent to unlawfully kill a human being.” As the Attorney General concedes, the concurrence in- struction was erroneous because implied malice second degree murder, a form of murder, does notre- quire the specific intent to kill. (Underlining added.) The Court in Rogers went on to find harmless error. Howev- er, in the present case the erroneous argument may well have blocked the jury’s consideration of the lesser offense of implied ma- lice second degree murder. (See People v. Ramkeeson (1985) 39 Cal.3d 346: error to refuse instruction on theft as a lesser included offense of robbery, since the lesser offense would have given the jury a path to a lesser verdict which would nottrigger special cir- cumstance liability.) This is a situation in which improper prosecu- tion argument can underminethe fairness ofa trial even where jury 75 instructions are given which are at least minimally consistent with current law.”| Appellant did not know Chuck Durbin, and he had no reason to harm or kill him. The prosecutor’s argument to the jury virtually invited a second degree murder verdict. His argument reflected the relative weakness in the evidence of premeditation on Count One, and the fact that the case could advance into the penalty phase with one count of first degree murder and one count of second degree murder. (See Penal Code § 190.2 (a)(3).)°” 3! Federal constitutional error may arise wherea state court jury instruction, even one whichis not unconstitutionally vague, is sub- ject to an unconstitutional interpretation, and that interpretation is advanced by the prosecutor with the apparent approval of the state trial court. Something similar occurred in Brown v. Payton (2005) 544 U.S. 133, 146. There the prosecutor argued a “too narrow”in- terpretation of the state death penalty statute; he argued that the de- fendant’s religious conversion was not a factor in mitigation. The United States Supreme Court had already upheld the constitutionali- ty of the state’s jury instruction. But the improper interpretation of- fered by the prosecutor resulted in federal constitutional error. [bid. %2 Appellant offers the following correction to the Opening Brief. At page 198 of the AOBit is stated, “a verdict of manslaugh- ter was unlikely, given the egregious circumstances of the shoot- ings.” This understates appellant’s argument, because no man- slaughter instructions were given. In order to express a reasonable doubt on the element of specific intent the jury would have had to acquit entirely; the only lesser alternative was implied malice second degree murder (general intent), and this alternative was effectively blocked by the prosecutor’s argument. Had manslaughter instruc- tions been given, there is a reasonable likelihood that the jury would have found manslaughter to be a reasonable alternative verdict. 76 However, in the penalty phase the lack of a premeditation finding on one count very likely would have affected the outcome of the penalty phase. This jury should not have been misinformed on the crucial element of implied malice. Appellant has been preju- diced; the conviction of first degree murder on Count One must be reduced, and the penalty phase judgment mustbe set aside. 77 XII. THE PROSECUTOR COMMITTED MIS- CONDUCT BY ARGUING TO THE JURY THAT PREMEDITATED MURDER IS ESTABLISHED MERELY BY EVIDENCE OF AN INTENT TO KILL. Respondent claims that this argument is foreclosed by the failure to object. As in Argument XII above, the defense could not object because to do so would appear to concede identity. The de- fense never conceded identity; defense counsel had great difficulty presenting argument and objections to arguments that focused on the murder elements of murder, for to do so would suggest that the de- fense was conceding identity. The contemporaneous objection re- quirement should therefore be waived. As set forth in Argument IV above, the evidence in this record is legally insufficient to support the charge of first degree murder on Count One. At a minimum the prosecution argument to the guilt phase jury was made against a backdrop of extremely weak evidence of premeditation. By arguing that premeditation is estab- lished merely by evidence ofintent to kill, the prosecution shifted its own burden of proof and denied appellant a fair trial. The convic- tion must be reversed. 78 XIV. THE PROSECUTOR COMMITTED MIS- CONDUCT BY ARGUING TO THE JURY THAT THE TESTIMONY OF RICHARD DIAZ, AN ACCOMPLICE, COULD BE CORROBORATED BY THE TESTIMONY OF JESSE RANGEL, ANOTHER ACCOMPLICE. Defense counsel made a tactical decision to object to the standard instruction on the jury’s determination of Jesse Rangel’s accomplice status (CALJIC 3.19), and the instruction was not given. The objection to the instruction was made because the standard in- struction required the defense to prove that Jesse Rangel was an ac- complice. (8 RT 2017; 9 RT 2118.) This by no means meantthat the defense acceded to the Jesse Rangel’s credibility; to the contrary, the defense challenged his credibility, and relied on Cindy Durbin’s ini- tial and repeated identification of Jesse Rangel as one of the assai- lants. Placing the burden ofproof onthe defense in this context was approved by this Court in People v. Belton (1979) 23 Cal.3d 516, 523, and appellant does not challenge that rule in this appeal. De- fense counsel arguedthat Jesse Rangel’s alibi was false (9 RT 2176- 2177), and that Jesse Rangel was therefore one of the shooters. Re- gardless of where the burden of proof to show accomplicestatuslies, no accomplice may corroborate another. There is good reason to be- lieve that Richard Diaz merely tracked Jesse Rangel’s statement, and 79 that this entire prosecution is based on an accumulation of accom- plice statements. It was therefore crucial to the prosecution to demonstrate that Richard Diaz’ account was corroborated. The inconvenient truth is that Diaz’ “corroboration” lies largely in Jesse Rangel’s testimony. This should not have occurred in contravention of Penal Code § 1111, regardless of the presence or absence of an instruction that would have explicitly labeled Jesse Rangel as an accomplice. The prosecution argumentto the jury attempted to repair a breach in the prosecution case which otherwise might have been fatal. (See People v. Najera (2008) 43 Cal.4th 1132, 1136-1137.) 33 “As we have previously explained, accomplice testimony re- quires corroboration not because such evidence is factually insuffi- cient to permit a reasonabletrier of fact to find the accused guilty beyond a reasonable doubt, but because ‘[t]he Legislature has de- termined that because of the reliability questions posed by certain categories of evidence, evidence in those categories byitself is insuf- ficient as a matter of law to support a conviction.” (People v. Cuevas (1995) 12 Cal.4th 252, 261; see Pen. Code, § 1111.) That is, even though accomplice testimony would qualify as ‘substantial evidence’ to sustain a conviction within the meaning of People v. Johnson (1980) 26 Cal.3d 557, 578, the Legislature has for policy reasons created an ‘exception{]’ to the substantial evidence test and requires accomplice testimony to be corroborated. (Cuevas, supra, 12 Cal.4th at p. 261.)” (Emphasis added.) As explained in Najera, legally sufficient evidence may be composed in part of accomplice testimony. Therefore, a jury would have no way to know ofthe accomplice corroboration rule in the ab- sence of a jury instruction, especially where the prosecutor argues as if the rule did not exist. 80 Defense counsel was placed in a Catch-22. Having foregone CALJIC 3.19, they could not then enter an objection which was based on the underlying premise of that instruction: that Jesse Ran- gel was an accomplice. This certainly was not invited error.** In this situation the absence of a contemporaneousobjection should not bar review ofthis issue on appeal. In total disregard of the record, respondent argues that “Jesse wasnot a principal, i.e., an accomplice to the murders because there was no evidence to make him subject to prosecution for the identical offenses charged against appellant.” (RB 105.) To the contrary, Cindy Durbin identified Jesse Rangelinitially and repeatedly in the months leading up to the preliminary hearing. (Ex. 52; 6 RT 1395- 1397, 1413-1419.) Her identifications of Jesse Rangel were fully admissible as substantive evidence under Evidence Code § 1235. If he was one ofthe shooters, then he was “subject to prosecution for the identical offenses charged against appellant.” To that must be added Jesse’s shooting at Juan Uribe’s car (evidence of malice and motive), and his flight to New Mexico (evi- *4 The doctrine of invited error applies only in situations in which defense counsel has requested an instruction based on a “con- scious and deliberate tactical choice.” (People v. Lucero (2000) 23 Cal.4th 692, 724.) 81 dence of consciousness of guilt). This was all evidence that Jesse Rangel was an accomplice to the murders. It simply is not accurate to deny that there is evidence of Jesse’s accomplice status. It was a denial of due processto utilize his testimony as corroboration of Ri- chard Diaz, and the error should have been corrected bythetrial court. 82 XV. THE TRIAL COURT ERRED BY EXCLUD- ING 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. Respondent correctly observes that defense rebuttal evidence concerning drug dealing at the Durbin home could not be offered in support of a claim of self defense or imperfect self defense. (See People v.,Szadziewicz (2008) 161 Cal.App.4th 823, 834.) The drug evidence was nevertheless highly relevant. Respondent also confronts a straw man, concerning whether the evidence of drug dealing was properly offered to impeach Cindy Durbin’s testimonyat the guilt phase (RB 116). Impeachmentat the guilt phase is outside the scope of this Argument; at the penalty phase the evidence of drug dealing was offered by the defense as substantive evidence in rebuttal to the victim impact evidence, and the exclusion of that evidence at the penalty phase is the subject of this Argument. 83 One prong of respondent’s argument, echoing the trial court’s revised ruling,*> is that “this was not a drug case,”and “there was no evidence to show anydrug activity by Uribe and Durbin contributed to their deaths.” (RB 106, 115.) To the contrary, the fact that Juan Uribe was a drug dealer may have had everything to do with the quarrel leading to his death. By opening their home to drug sales and usage, the Durbins exposed themselves to risks brought in by their erstwhile guests. It is not accurate to say that drug dealing had nothing to do with this case. According to the defense offer of proof, Juan Uribe had no visible means of support other than drug dealing. There was no elucidation of the underlying motives leading to the confrontation and shooting following the baptism party, two weeks before the Uribe/ Durbin shootings, and the factional war that followed; Uribe’s status as a drug dealer undoubtedly had something to do with the origins of the conflict. It would have added to the jury’s knowledge ofthe “circumstances of the case” to know that there was full-time drug dealing in the background. 35 The trial court initially accepted the defense argument and held that the evidence of drug usage was admissible, even at the guilt phase. (4 RT 907.) 84 Respondent also invokes Evidence Code § 352 considera- tions. (See RB 107, citing People v. Guerra (2006) 37 Cal.4th 1067. 1145 [photograph of defendant’s family in Guatemala deemed cu- mulative to testimony on the same subject].) Respondent confuses probative value with prejudice. “The ‘prejudice’ referred to in Evi- dence Code section 352 applies to evidence which uniquely tendsto evoke an emotional bias against [a party or witness] as an individual and which has very little effect on the issues.” (People v. Karis (1988) 46 Cal.3d 612, 638.) The offered defense evidence on drug dealing had a direct effect on the weight of the victim impact evi- dence; it was “prejudicial” to the prosecution case on victim impact, but that did not lessen its probative value.*® To a large degree this was a drug case. Drug dealing was in the background of the scenario leading up to the fatal shootings. Uribe was the supplier for the Durbins, and the crowd gathered at their house were evidently there for drug usage. A drug scale was found on the kitchen table. Durbin had a substantial level of me- thamphetaminein his system at the time of his death. The drug evi- dence wasrelevant as a circumstanceof the crime under Penal Code °° Compare People v. Loker (2008) 44 Cal.4th 691, 735: evi- dence of drug usage by victim properly excluded, because the prose- cution presented no victim impact evidence. 85 § 190.2 (a). Yet none of this information was allowed to go before the jury. Respondent also argues that the prosecution limited itself to “victim impact evidence,” while avoiding “victim character evi- dence,” and reasons that the evidence of drug dealing was relevant only to character and not to victim impact. (RB 112, 115.) Significantly, in its recital of victim impact evidence respon- dent fails to mention the death of Natasha Durbin. (See RB 114.) This is one item of evidence that surely involved the character and reliability of Chuck Durbin; the relevance of her death was suppo- sedly keyed to the effect on her mother, who dealt with the death in the absence of her husband (see Argument XVI below). But that as- sumes that Chuck Durbin wasa dutiful and reliable husband and fa- ther, not a drug user, and that is an assumption that the defense was entitled to rebut.*’ Respondenttreadsa fine line, laid out by this Court in People v. Boyette (2002) 29 Cal.4th 381, 445, between victim impact evi- dence and pure character evidence. “Testimony from the victims’ 7 Again, appellant would not pursue this entire line of reason- ing, which by inference demeans the victims, if the impact of their deaths had not been unreasonably exalted through victim impact evidence. 86 family members was relevant to show howthe killings affected them. not whether they werejustified in their feelings due to the vic- tims’ good nature and sterling character.” (/bid.) Up to a point, this is a valid distinction: for instance priorto his exposure and arrest, Bernie Madoff washighly regarded by many people who probably would have eulogized him, had he suffered an untimely death; but at some point more becomes known ofthe vic- tim, and then such testimonials begin to ring hollow. Thetrier of fact is entitled to know the entire story as it was known to the vic- tim’s survivors. Here information which was fully known to Cindy Durbin at the time of the shootings (that Uribe was dealing drugs regularly in the Durbin house, including the day of the shootings, and that her husband was a “recreational” user) was erroneously suppressed bythetrial court. Permitting the introduction of such evidence would bring this case into line with the normalrule ofassessing victim damages. For instance, where unflattering information about the deceased wasrea- sonably knownto the surviving victims, it must be considered by the jury in assessing damages for wrongful death.°* * See, e.g., Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1027: “And where a husband sues for the wrongful death of his wife, evidence of his extramarital affairs is admissible to show ‘the nature of the personalrelationship [with his 87 Respondent goes on to argue that the exclusion of the defense rebuttal testimony was not prejudicial error. As to the decision to impose the death penalty, it is never easy to assess prejudice. But in the present case the penalty case was not overwhelming. Appellant was a loving and conscientious husband and father. He wasfifty yearsold at the time ofthe killings, and he had no prior record. His motivations, however misguided, had to do with protecting his son. The fact that this is a double murder case does not eliminate the possibility of prejudicial error in presentation of the mitigating case. (See Porter v. McCollum (2009) 130 S.Ct. 447, 455 [habeas relief granted for failure to present mitigating evidence, where de- fendant was convicted of two counts of premeditated murder].) Victim impact evidence waspivotal to the death judgment. The jury was given a distorted perspective of the victims, not per- taining to their character but to the esteem in which they were held by their families. It is one thing to say that the victim (Juan Uribe) was a con- scientious provider for the family, it is another to say that he made wife] and thus ... whether there was any loss of love, companion- ship, comfort, affection, society, solace, moral support or enjoyment of sexual relations.’ (Morales v. Superior Court (1979) 99 Cal.App.3d 283, 288.)” 88 his living, with the knowledgeofhis family, off of felony drug sales. (Compare People v. Boyette, supra: “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 houseat which drug addicts congregated. In short, the jury already knew the victims were not upstanding citizens, so defendant’s inability to em- phasize this point in cross-examination could not have affected the penalty judgment.” (Emphasis added.)) For these reasons the drug evidence offered by appellant in the penalty phase was erroneously excluded from evidence. It is reasonably likely that a different result would have been reached on a more complete record, and the death judgment mustbe reversed. 89 XVI. EVIDENCE WAS IMPROPERLY INTRO- DUCED OF THE DEATH OF CHUCK DURBIN’S DAUGHTER NATASHA AND THE AUTISM OF HIS SON BRETT, WITHOUT FOUNDATIONAL EVIDENCE THAT THESE CIRCUMSTANCES WERE RELATED TO DURBIN’S DEATH. Respondent argues that the argument regarding evidence of Brett’s autism was waived for failure to object. Since the autism evidence was introduced in conjunction with the testimony regarding Natasha’s death, the defense objection should be deemed to encom- pass both. (People v. Hill (1998) 17 Cal.4th 800, 820.) Further ob- jection, in view of the Natasha ruling, would have beenfutile. (/bid.) Respondent arguesthat there is “no conceivable way”the jury could infer that Chuck Durbin’s murder caused Natasha’s death or Brett’s autism. (RB 124.) Appellant simply disagrees — the invited connection is ob- vious, though unfounded. In our society, nine-year-olds do not commonly die of the flu. There must have been something else in- volved — we don’t know what it was (congenitalill health? parental neglect?) but the jury certainly must have concluded, reasonably enough, that they wouldn’t have been told aboutit if it wasn’t a re- sult of the homicide ofher father. Respondent echoes the prosecutor below, in arguing that the evidence of Natasha’s death was only offered to show how Cindy 90 Durbin wasaffected, to demonstrate the difficulties she had in daily life. (RB 119, 123.) But that could have been done in a muchless prejudicial way, for instance by evidence that she was proneto be depressed. (See 10 RT 2432.) It was not necessary to introduce evi- dence that her daughter had died. This situation contrasts to this Court’s recent opinion in People y Hamilton (2009) 45 Cal.4th 863, 928. The prosecutor in that case argued to a penalty jury that the death of the victim’s hus- band, fifteen years later was a result of the murder. This Court de- termined that the argument was reasonably taken as hyperbole; “[nJo reasonable juror” would believe that the prosecutor was asking them to find the defendant “legally responsible” for the husband’s death. (lbid.) Here the connection was much more obvious. The prosecutor used a stalking horse to get Natasha’s death into evidence:the diffi- culty Cindy Durbin had in dealing with problemsof daily life in her husband’s absence. But the implicit invited connection was that ap- pellant was responsible for Natasha’s death. Thetrial court should have had the good judgmentto see through this stratagem. Theevi- dence should have been excluded for lack of relevance and excessive prejudicial effect. (Evidence Code § 352.) 91 Respondent arguesthat the trial court acted within its “discre- tion” in permitting the evidence of Natasha’s death. But the trial court’s authority was only to apply the law as determined by this Court. (See Miyamoto v. Department ofMotor Vehicles (2009) 176 Cal.App.4th 1210, 1222; Rushing,J. conc.*” And see In re Charlisse C. (2008) 45 Cal.4th 145, 161.*°) The supposed connection between the homicide and Brett’s autism was madedirectly in Cindy Durbin’s testimony. Shetestified that Brett ran and hid when he heard the doorbell. He received counseling, and wasautistic. (10 RT 2431.) This wasall associated with the homicide according to Cindy’s testimony, but the autism connection lacked foundation because, if it was a correct diagnosis, it existed well before the homicide. Finally, respondent argues that there was no prejudicial effect to the use of this evidence. (RB 124.) To the contrary, this case was not overwhelming as to the death penalty. Appellant, in his drunken state, was involved in an affair which he did not understand, with 8 “Properly viewed, the trial court’s ruling here was not an ex- ercise of discretion but an application of a rule of law. Thetrial court had no discretion to decide what the applicable law was orto determine its logical effect in light of the facts found. Its legal anal- ysis was either correct or incorrect.” “0 “'.. The juvenile court committed legal error—and_ thus, abused its discretion—in concluding otherwise.” 92 people he had never met. Other than this bizarre incident, he was a productive citizen and a credit to his community. Surely the evi- dence of Natasha's death was a blockbuster factor when it came time to determine punishment. The death judgment must be reversed. 93 XVII. APPELLANT WAS DENIED THE CON- STITUTIONAL RIGHT TO CONFRONTATION BY THE USE IN EVIDENCE OF A STATEMENT TAKEN FROM NATASHA DURBIN. Appellant argues that Natasha’s statements to the investigat- ing officer*’ and to her grandmother were testimonial statements go- verned by the confrontation clause. Although admissible at the time of trial under the hearsay exception for spontaneous statements and under the then-current interpretation of the Confrontation Clause (see Ohio v. Roberts (1980) 448 U.S. 56), they should now be deemed inadmissible under the rule of Crawford v. Washington (2004) 541 U.S. 36. Respondent argues first that the Confrontation Clause does not apply to the penalty phase of a capital trial. This claim should be rejected. Respondent relies on the Fifth Circuit opinion in United States v. Fields (Sth Cir. 2007) 483 F.3d 313, which in turn relied on the United States Supreme Court opinion in Williams v. New York (1949) 337 US. 241. 4} Detective Ciapessoni was apparently promoted to detective during the pendency ofthe trial, and he had that status at trial. At the time of the shootings he was a patrol officer, and he was one of the first officers who responded to the crime scene. He took Nata- sha’s statementthat night. 94 The proposed rule, exempting penalty phase evidence from the Confrontation Clause, is fundamentally unsound. There is no reason to think that the Founders would have intended an exception to the Confrontation Clause for penalty phasetrials, the one species of trial which above all matches the power of the State against the individual, for the highest stakes imaginable. The opinion in Williams v. New York, supra, was based on the Due Process Clause, not the Confrontation Clause.” Under Wil- liams the state court judge was permitted to overrule a jury and sen- tence the defendant to death, based on information in a probationre- port. At the time of the Williams decision, the incorporation of the Confrontation Clause into state procedure wasstill years in the fu- ture.” 2 “We hold that appellant was not denied due process of law.” (Williams v. New York, supra, 337 U.S.at 252.) Decisions such as Fields have beencriticized forthe failure to recognize the distinction between confrontation and due process. See Alan C. Michaels, “Trial Rights at Sentencing,” 81 N.C.L.Rev. 1771, 1837 (2003) (“[Williams] was decided on due process grounds alone, however, and was decided sixteen years before the Confronta- tion Clause was incorporated against the states.”); Note, “An Argu- ment for Confrontation Under the Federal Sentencing Guidelines,” 105 Harv. L. Rev. 1880, 1890 (1992) (criticizing Courts of Appeals for failing to notice that “Williams was not a Confrontation Clause case.” 3 In 1949, when Williams was decided, Pointer v. Texas (1965) 380 U.S. 400, had not yet incorporated the Confrontation Clause into 95 Moreover, the Williams result has been significantly eroded by subsequent cases. The Supreme Court has madeclear since Wil- liams that “death is different,” that there is a need for reliable infor- mation at a capital sentencing, and that there is a need for confronta- tion whenthereis constitutionally significant fact-finding on the part of the jury. (See, e.g., United States v. Booker (2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey (2000) 530 U.S. 466; Lockett v. Ohio (1978) 438 U.S. 586, 604; Woodson v. North Carolina (1976) 428 U.S. 280, 305.) Apart from Fields, there has been wide disagreement over the question of Confrontation Clause rights at the penalty phase of a capital case. Many decisions have held that confrontation rights ap- ply at the penalty phase.” the Fourteenth Amendmentas a fundamental right in state prosecu- tions. The older concept of “ordered liberty” under Palko v. Con- necticut (1937) 302 U.S. 319 wasstill the guiding principle in 1949. “4 Compare Proffitt v. Wainwright (11th Cir. 1982) 685 F.2d 1227, 1254 (holding that “the right to cross-examine adverse wit- nesses applies to capital sentencing hearings”); United States v. Mills (C.D.Cal. 2006) 446 F.Supp.2d 1115, 1135 (“Crawford v. Washing- ton’s protections apply to any proof of any aggravating factor during the penalty phase of a capital proceeding under the FDPA.”); Rus- seau v. State (Tex.Crim.App. 2005) 171 S.W.3d 871, 880 (reversing a death sentence under Crawford because the trial court admitted testimonial hearsay at the punishment phase); State v. Bell (N.C. 2004) 359 N.C. 1, 603 S.E.2d 93, 115-16 (applying Crawford to 96 Confrontation is nowhere more important than in a death pe- nalty trial. This Court should reject respondent’s suggestion and hold that the right to confrontation does apply to the penalty phase. Respondent further argues that Natasha’s statements were not “testimonial” within the meaning of Crawford and Davis v. Wash- ington (2006) 547 U.S. 813. Respondent argues that Natasha’s statement to her grandmother “bore absolutely no characteristics of testimony.” Respondent acknowledges that whether Natasha’s statement to the officer was testimonial “presents a close question.” (RB 129.) Natasha’s statement to her grandmother was nota casualre- mark to a disinterested person. Ginger Colwell was keenly interest- ed in the details of the shooting, and Natasha was a potential source of information that could be usedlater in court proceedings. In People v. Gutierrez (2009) 45 Cal.4th 789, this Court re- viewed the admissibility of an out-of-court statement made by a child about two monthsafter his mother’s death, while his aunt was hold that the introduction of testimonial hearsay at the sentencing phase ofa capital trial violated the Confrontation Clause); and Ro- driguez v. State (Fla. 2000) 753 So.2d 29, 43-44 (holding that “the Sixth Amendmentright of confrontation applies to all three phases of the capital trial” and that “the admission of . . . hearsay statements of co-defendants in the penalty phase violated the Confrontation Clause.’’) 97 driving him to the cemetery to visit his mother’s grave. This Court held that the statement was made too long after the event to qualify as a spontaneous declaration, and it was therefore error to admit the statement under Evidence Code § 1240.° However, the statement was made completely out of the context of any criminal investiga- tion; the statement was therefore not “testimonial” and its introduc- tion did not violate the Confrontation Clause.”° The situation is quite different here. Natasha spoke to her grandmother a few hours after the shootings. She was much more “5 “Here, defendant argues that the child’s statement did not sa- tisfy the requirements of a spontaneous declaration because the child’s ability to reflect and fabricate had returned by the time he made the statement, and the statement failed to describe the event immediately preceding it. We agree.” (45 Cal.4th at 810.) For a similar conclusion, see Winzer v. Hall (9th Cir. 2007) 494 F.3d 1192, 1200: “The mere fact that Parrish was upset as she spoke would not makeherutterance reliable. As the Supreme Court has recognized, a spontaneous statementis reliable becauseit is of- fered ‘without the opportunity to reflect on the consequences of one’s exclamation.’ White, 502 U.S. at 356. Just because a subject is or appears to be upset offers no guarantee that he has not taken time to consider the matter. The subject may be upset precisely because he’s had timeto reflect, or he may feign emotional distress in a cal- culated effort to appear more credible.” “6 “The statement of a three-year-old declarant made to his aunt is more like ‘a casual remark to an acquaintance’ andis therefore not a testimonial statement under Crawford. (See People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19 [out-of-court statement madeto a friend at school does not constitute testimonial hearsay” under Crawford].)” (45 Cal.4th at 813.) 98 likely to give a description of the incident to her grandmother than she would to a detective or a uniformed officer. It is only natural in this situation to use the child’s grandmotherto speak to a frightened child, to obtain the maximum amountof information for later use in court. For these reasons, the context of Natasha’s statement was not like “a casual remark to an acquaintance.” It was testimonial, and should be subject to the confrontation rules for testimonial state- ments. Natasha’s statement to the officer was also testimonial. Res- pondentpoints out that the murder investigation was ongoing.*’ But Natasha’s statement did not contribute to the investigation or the identification of suspects. Her statement was gathered in order to recreate the crime scenario, in order to present a murder case and a case in aggravationattrial. It was entirely testimonial and subject to Confrontation Clauserestrictions. "7 Notwithstanding the Supreme Court’s statement in Davis v. Washington, supra, that the emergency ended when Mr. Davis fled the scene, courts have divided over whether a dangerous suspect’s being at large constitutes an ongoing emergency. Compare State v. Ayer (N.H. 2006) 917 A.2d 214 (ongoing emergency) and United States v. Arnold (6th Cir. en banc 2007) 486 F.3d 177 (same), with State v. Kirby (Conn. 2006) 908 A.2d 506 (no ongoing emergency merely because suspectstill at large) and People v. Bryant (Mich. 2009) 768 N.W.2d 65 (same). And see Fisher, What Happened — and What Is Happening — to the Confrontation Clause, 15 Journal of Law and Policy 587 (2007). 99 Appellant was denied confrontation by the use of Natasha’s statements at the penalty phase. The error was prejudicial because, contrary to respondent’s argument, this was a close case on penalty. (See Porter v. McCollum, supra.) Quoted statements by the perpe- trator(s) such as, “Juan, you disappointed us” (10 RT 2388) were bound to influence the jurors’ penalty decision. The penalty deter- mination must be reversed. 100 XVIII. THE TRIAL COURT ERRONEOUSLY REFUSED REQUESTED PENALTY PHASEIN- STRUCTIONS THAT WOULD HAVE _IN- CLUDED THE MOTIVATION FOR THE KILL- ING OF JUAN URIBE AMONG MITIGATING FACTORS. Appellant submitted two proposed instructions which would have permitted the jury to consider in mitigation the defendant’s mo- tivation for the crime, and Juan Uribe’s contribution to appellant’s emotional disturbance. Both instructions were rejected by the trial court. Respondentargues that the requested instruction which would have allowed the jury to consider appellant’s motivation was impro- per, because it “would have run contrary to the prosecutor’s closing argument about the circumstances of the crimes under factor (a).” Suggesting that the defendant’s motivation could actually be a miti- gating factor would have confused the jury. (RB 135.) Respondent argues that the proposed instruction on the vic- tim’s contribution to the defendant’s emotional disturbance was im- proper because Chuck Durbin did nothing to contribute to the defen- dant’s emotional disturbance. Further, it is argued, there is insuffi- cient evidence that appellant believed that Juan Uribe was responsi- 101 ble for his son’s injuries, and there was no evidence of“building ten- sion between appellant and Uribe.” (RB 135-136.) Respondent goes on to argue that the generalized factor (k) instruction (“[a]ny other circumstance which extenuates the gravity of the crime...”) was enough to cover the subject. Respondent attempts too much by arguing that an instruction is “misleading” and “confusing” merely because it contradicts the prosecutor’s argument. True, this was the explicit reason given by the trial court for denying the defense instruction on motive. (10 RT 2535.) But this Court has never endorsed the denial of a requested instruction just because it was potentially inconsistent with the pros- ecution’s argument.*® The proposed instruction indicated that the jury “may” con- sider motive in mitigation. (12 CT 2476, 2590.) It did not indicate that the jury “must” consider motive in mitigation; the prosecutor would still have been free to argue the contrary, or even request his ownpinpointinstruction. 48 Respondentcites to People v. Gurule (2002) 28 Cal.4th 557, 659, but that decision only rejected proposed defense instructions that were legally incorrect or duplicative; nothing of the sort can be said of the proposedinstructionshere. 102 The danger here is that appellant’s concern over his son’s well-being, even though accepted by the jury. would not be seen as falling within the generalized language ofthe standard instruction, as a circumstance which “extenuates the gravity of the crime.” The prosecutor argued that it didn’t. (10 RT 2549-2550.) Defense coun- sel could not do much more than argue that appellant’s reactions sprang from ordinary human emotion. (10 RT 2560-2561, 2588.) There was nothing in the jury instructions to guide to jury to even consider motivation as a mitigating factor.*” Thus the jury was given no vehicle for expressing its “reasoned moral response”to ap- pellant’s mitigation evidence. (Penry v. Johnson (2001) 532 USS. 782.) Regarding the proposed modification to factor (e), to focus on the victim’s contribution to the defendant’s emotional disturbance, this was obviously meant to refer to Juan Uribe. No one suggests that Chuck Durbin contributed to appellant’s emotional disturbance. There was ample evidence that the feud had focused on Juan Uribe, involving several violent incidents leading up to the homicides; Respondentcites to People v. Barnett (1998) 17 Cal.4th 1044, 1176-1177. That decision holds only that the trial court need notin- clude language from section 190.2 that a life term must be imposed where mitigating evidence outweighs aggravating evidence. Barnett does not meanthat the unadorned CALJIC languageis always suffi- cient; in somecases,as here, a pinpoint instruction is necessary. 103 clearly appellant had been clued into the nature of this controversy, at least to focus his concern on Uribe, not Jesse Candia, and certain- ly not Chuck Durbin. Even if not a complete “legal excuse for the crime” (factor (k)), evidence of provocation and heat of passion was an important aspect of the defense. Evidence of provocation and heat of passion was not attenuated and should have been included as a mitigating factor on request. (See Argument VIII above, and People v. Moye (2009) 47 Cal.4th 537.) Respondent argues unconvincingly that the jury “necessarily rejected any contention that appellant was underthe influence of ex- treme mental or emotional disturbance.” (RB 136.) To the contrary, the jury undoubtedly believed that the prior shooting weighed heavi- ly on appellant’s mind, provoking him and making him fearful for his family’s safety. Yet that factor alone may not have been enough to tip the balance under factor (e), for the simple reason that it did not appear to “extenuate the gravity of the crime” — the prosecutor assured them thatit did not. In these circumstances appellant was prejudiced by the failure to read a pinpoint instruction on the defense request (see Porter v. 104 McCollum, supra), and the penalty phase judgment must be re- versed. 105 XIX. THE TRIAL COURT IMPROPERLY RE- FUSED DEFENSE-REQUESTED PENALTY PHASE INSTRUCTIONS ON THE ASSESS- MENTOF MITIGATING EVIDENCE. A. Instruction on Standard of Proof. Respondent correctly points out that the beyond-a-reasonable-doubt standard of proof does not apply to the penalty phase. (RB 139.) But respondent does not explain how a jury would know that; there is certainly no harm in telling what the jurors explicitly of a rule that the lawyers understand implicitly. The requested instruction does not direct the jury to “make findings based on the evidence.” It directs the jury to accept uncon- tradicted mitigating evidence which the jury finds to be believable, i.e. “substantial.” This instruction guards against the jury rejecting mitigating evidence out of passion or prejudice. It makes a worth- while point: regardless of how dire the circumstances in aggravation may appear, the jury must pause and consider any mitigating factor that is supported by substantial evidence. Without citation to authority, respondent claims that thetrial court need not “parse” the Wharton instruction’’ to separate the valid portions from those which are cumulative or argumentative in the °0 People v. Wharton (1991) 53 Cal.3d 522, 600-601. 106 circumstances of the case. To the contrary, the trial court must parse a proposedinstruction, even modify it if necessary, so long as an important point is contained in it. (People v. Brady (1987) 190 Cal.App.3d 124, 136.) “The judge is, after all, the one responsible for instructing the jury on the law, a responsibility that may not be abdicated to counsel.” (Brown v. Payton (2005) 544 U.S. 133, 146.) For these reasonsit was error to refuse the instruction on the treatment of mitigating evidence. B. Instruction on Intracase Comparison. Respondentrelies on the principle that “the individually negotiated disposition of an accomplice” is not relevant to the penalty determination, citing People v. Rodrigues (1994) 8 Cal.4th 1060, 1188, and authorities there cited. However, “underarticle I, section 17 of the California Consti- tution,[°'] defendant is entitled to intracase review to determine whether the death penalty is disproportionate to his personal culpa- bility.” (People v. Williams (1997) 16 Cal.4th 153, 280.) Favorable treatment of a potential accomplice such as Jesse Rangel, where there is lingering doubt of who wasactually involved in the fatal | “Cruel or unusual punishment may notbeinflicted or exces- sive fines imposed.” 107 shootings, should be a matter of concern to the sentencing jury, and to this Court on review ofthe sentence. Appellant continues to press for jury consideration of evi- dence of intracase dispositions, as a matter of federal due process. (See Gregg v. Georgia (1976) 428 U.S. 153, 187, and Parker v. Dugger (1991) 498 U.S.308, 314.) 108 XX. THE TRIAL COURT FAILED TO _IN- STRUCT THE PENALTY PHASE JURY SUA SPONTE ON THE CIRCUMSTANTIAL EVI- DENCE RULE. Respondentrelies on the proposition that the Circumstantial Evidence Rule has no application where the prosecution does not rely substantially on circumstantial evidence. (RB 143.) However, in seeking the death penalty the prosecution here did rely substan- tially on circumstantial evidence. Central to the prosecution penalty argument was the assertion that appellant was motivated by “re- venge” and by a need for “respect.” These are factors that can only be proven by circumstantial evidence. The case in mitigation was also based on circumstantial evi- dence, i.e. evidence of intoxication, or “impaired capacity.” (See Penal Code § 190.3 (h).)” At the guilt phase the evidence was nec- essarily limited to the question of “diminished actuality,” and im- paired capacity was a consideration which only arose in the penalty phase. It was supported entirely by circumstantial evidence. °2 “Whetheror 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 impaired as a result of mental disease or defect, or the affects [sic] of intoxication.” 109 The blanket erasure of the Circumstantial Evidence Rule, along with all other guilt phase instructions, created the likelihood that this important principle would be ignored in the penalty phase. Asthis Court stated in People v. Romero (2008) 44 Cal.4th 386, 425, “d]efendant correctly observes that a trial court’s failure to specify which previously given guilt phase instructions apply at the penalty phase may mislead the jury (People v. Weaver (2001) 26 Cal.4th 876, 982), and that we have admonishedtrial courts that they should ‘expressly inform the jury at the penalty phase which of the instruc- tions previously given continue to apply’ (People v. Babbitt (1988) 45 Cal.3d 660, 718, fn. 26)....” This situation is to be distinguished from trial court instructions that permit the use of guilt phase instruc- tions at the penalty phase. (See People v. Rogers (2009) 46 Cal.4th 1136, 1175.° °8 “Here the trial court instructed the jury that ‘unless otherwise indicated ... all applicable instructions given in the guilt phase will apply.’ The court additionally instructed the jury to disregard only those guilt phase instructions that conflicted with the penalty phase instructions the court was aboutto give. [fn.] Having instructed as such, the court was not obligated to repeat all the guilt phase instruc- tions that applied to the penalty phase. (See People v. Rogers (2006) 39 Cal.4th 826, 905 [distinguishing those situations in which a pe- nalty phase jury was instructed, without limitation, to disregard _all other instructions given in other phases of the trial]; see People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1067; People v. Cooper (1991) 53 Cal.3d 771, 846.)” (Emphasis added.) 110 Respondent also asserts that the Circumstantial Evidence Rule is not necessary in any proceeding wherethere is no burden of proof beyond a reasonable doubt. Respondent cites People v. Ed- wards (1991) 54 Cal.3d 787, 782, for the proposition that since there is no standard of proof beyond a reasonable doubt at the penalty phase, the Circumstantial Evidence Rule has no application, and there is no duty to instructonit. However, there are predicate facts which the Circumstantial Evidence Rule applies, such as motive and impaired capacity. (See People v. Richardson (2008) 43 Cal.4th 959, 1033: “The death pe- nalty statute does not adopt any new rules of evidence peculiar to itself, but simply allows the generally applicable rules of evidence to govern.”) It is only the ultimate decision, not the predicate facts, which is immune from the Circumstantial Evidence rule. CALJIC 2.02 should have been read to apply to those essential items of con- tention in the penalty phase. 111 XXI. THE TRIAL COURT’S FINDING OF PRE- MEDITATION IN COUNT ONE, IN DENYING THE DEFENSE MOTION TO MODIFY THE DEATH VERDICT, WAS AN ABUSE OF DIS- CRETION AND A_ VIOLATION OF DUE PROCESS. Defense counsel filed an extensive motion to modify the death judgment. (13 CT 2855.) Respondent now asserts that there wasa failure to preserve the objection to premeditation as a factor in aggravation. (RB 146.) Appellant submits that the wide-ranging de- fense motion should be deemed to preserve the objection to impro- per factors relied upon bythetrial court. Respondent goes on to argue that there was no prejudice be- cause there is no other reasonable interpretation of the evidence oth- er than that Count One wasa premeditated killing. To the contrary, given appellant’s intoxication and the extremely short time span, a few secondsat most, leading to the shooting, proof of premeditation was not an easy task.’ (See ArgumentIV above.) Moreover, the phantom element of premeditation swung the balance in favor of the death penalty. It is reasonably likely that in *4 Respondent incorrectly states that a .38 slug was found near the victim’s body. The slug recovered next to the victim’s head was a .380. (4 RT 928.) According to the testimony of Richard Diaz, he fired a .38, whereas appellant fired a .380 (5 RT 1271, 1276.) 112 the absence ofthis factor the trial court, as well as the jury, would not have imposedthe death penalty. 113 XXII. MANY FEATURES OF THE CALIFORNIA CAPITAL SENTENCING SCHEME, AS INTER- PRETED AND APPLIED BY THIS COURT, VI- OLATE THE FEDERAL CONSTITUTION AND INTER-NATIONAL NORMS. Appellant submits this Argument, and its sub-arguments, on the basis of prior briefing. 114 CONCLUSION For the foregoing reasons, appellant’s conviction must be re- versed. In the alternative, the death penalty judgment must be re- versed, or the matter must be remanded for further proceedings. Date: December 22, 2009 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 Romanfont, 13-point, and contains a word count of 18,702. Date: December 22, 2009 CHARLES M. BONNEAU Attorney for Appellant 115 CASE NAME: PEOPLE v. RANGEL CASENO.: S076785 COURT: SUPREME COURT OF CALIFORNIA PROOF OF SERVICE BY MAIL I declare that I am employed in the County of Sacramento, California. I am over the age of eighteen years and not a party to the within cause; my business address is 331 J Street, Suite 200, Sacramento, CA 95814. On the dated below I served the APPELLANT’S REPLY BRIEFonthe 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 Dep. Atty. Gen. BRIAN ALVAREZ California Appellate Project 2550 Mariposa Mall, Rm. 5090 101 Second Street Ste. 600 Fresno, CA 93721 San Francisco, CA 94105 {Attorney for Respondent] PEDRO RANGEL,Jr. P-28501 MADERA CO. SUPERIORCT. S.Q.S.P. 4-E-46 209 W. Yosemite Ave. San Quentin, CA 94974 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 communication by mail between the place of mailing 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 true and correct, and that this declaration was executed on , at Sacramento, California.