PEOPLE v. SOUZA (MATTHEW ARIC)Appellant's Opening BriefCal.January 18, 2005— SUPREME COURT COPY IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE OF THE STATE ) NO. 8076999 OF CALIFORNIA, ) ) Plaintiff and Respondent, ) Alameda County Superior ) Court No. vs. ) C122159B ) MATTHEW A. SOUZA, ) ) Defendant and Appellant. ) SUPREME COURT FILED ) JAN 1 8 2005 Frederick K. Ohirich Clerk APPELLANT’S OPENING BRIEF Toe Lene ON AUTOMATIC APPEAL FROM A JUDGMENT AND SENTENCE OF DEATH Superior Court of California, County ofAlameda The Honorable Joseph Hurley, Judge Presiding C. Delaine Renard State Bar No. 169893 2625 Alcatraz Ave., PMB 247 Berkeley, CA 94705 510-665-5900 ~\{ | By appointment by the California Supreme Court Attorney for Appellant Matthew A. Souza TABLE OF CONTENTS TABLE OF AUTHORITIES..........cesssssssscesesccesscseeesetsececeseceeeseesnerseeeeeeneeceaeseesxiii STATEMENTOF APPEAL uo.cecscseceecseessccessscescesssesecesceeceesessecsacesseasensaceeees 1 STATEMENTOF THE CASEou...ccccsssscsscsceseseceescessescessssceseceececeneseeeseeenensacenss 1 STATEMENT OF FACTS...sesscsscecseecesecesesecesseecescceeseceescessseneceeeceseccsessseess 4 THE GUILT PHASE....0..eccccecsscesseeseeeseseccscccsceneesceessercecesneeeesenesensenseasaceess 4 A. The Prosecution’s Case ............essesscsssscssseesssecesssensssceseesessscesncesseceneesensscees 4 1. The Regina Watchman party and the assault upon Rebecca Souza............. 4 2. Ms. Souza’s conduct and emotional state following the assault.................. 8 3. The shooting at the Watchman apartment.......0........c:ccsccccsstecesseeeesreeeseeseees 10 4. Evidence gathered after the Shooting................:.cccccscsesesccesceeceesseesceessesees 15 B. The Defense Case. 0...ceees ecseccscesceesscessecsecsneeseeeaescneasceseseesecneeseeeeteees 21 THE PENALTY PHASE...ceecesseescesescecceesesceecencesesseneneseeesceseesensenscesesesassees 25 A. The Prosecution’s Case. 0...ccscsscsscsssccssccsesssscsssssssessesssssssesssessseesesesees 25 B. The Defense Case..............scessssscssccesssenssessssscessessenessseusseesseneessesssonsessvas 26 ARGUMENT.........:ccsccscssscssesscessresscssscesesecseecsescsscsensessececesecsesesacescseesasseeseseseeeseaees 31 I. THE JOINDER OF THE SOUZA BROTHERS’ TRIALS VIOLATED MATTHEW SOUZA’S FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL, PROOF BEYOND A REASONABLE DOUBT ON THE TRUTH OF THE SPECIAL CIRCUMSTANCE ALLEGATION, AND A RELIABLE JURY DETERMINATION ON THE ELEMENTS RENDERING HIM DEATH ELIGIBLE...00....eecsescsesesscsscessscesscnssoncesescsescssscsscsssssssasssesesesssesssesssesesessssesssceseacoees 31 A. [troduction. .o..eccccccccececccccsccccececcccccsssccccccssecececerecssecessceccscsecccsssececsssseees 31 B. The Applicable Legal Principles..................cscsssssssesseceesteeseessseneenseseeeseres 36 1. Standard Ofreview. ...........secceessssssssscsecsssscesessnscessessssessceeseseeseeassssesseaseaees 36 2. Mutually antagonistic or irreconcilable defenses.................sccsessesseeseeeees 38 C. The Joinder OfThe Souza Brothers’ Trials Was Erroneous And Deprived Matthew OfHis Rights To A Fair Trial And A Reliable Jury Determination OfHis Guilt Or Innocence Of Capital Murder Based On ProofBeyond A Reasonable Doubt As Guaranteed By TheFifth, Sixth, Eighth and Fourteenth Amendments. 00.0.0... cseeseeseceeeeeaeceecsceesaeessasesenscenseeeees 43 I]. THE TRIAL COURT’S REFUSAL TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF VOLUNTARY MANSLAUGHTER AND ATTEMPTED VOLUNTARY MANSLAUGHTERIN A REASONABLE HEAT OF PASSION VIOLATED MATTHEW’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, TRIAL BY JURY, AND TO PRESENT A DEFENSE AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS....54 A. Tmtroduction. ...............cccccscesececcccesseceecccsssccccacsceeccccsssccceccussesceassecscccssacceseees 54 B. Where Supported By Substantial Evidence, State Law And The Federal Constitution Mandate Instructions On VoluntaryManslaughter And Attempted Voluntary Manslaughter In The Heat OfPassion As Lesser- Included Offenses To Charges OfMurder And Attempted Murder.................. 56 1. The general legal principles applicable to, and evidence supporting instruction on, voluntary manslaughter in a reasonable heat ofpassion........ 62 2. “Provocation” does not necessarily have to come from the victim killed so long as an act or event would provoke a reasonable person into a heat ofpassion directed at the VICTIM..............sccssessssssescsssesessessessensesenseseneseeeaees 68 C. Because There Was Substantial Evidence That The Shooting OfAll Of The Victims Was Committed In A Reasonable Heat OfPassion, The Trial Court Violated State Law And TheFederal Constitution By Refusing To Instruct On The Lesser-Included Offenses OfVoluntary Manslaughter And Attempted Voluntary Manslaughter. .........0.....cccseescsssssssssesssssessssosenseeeees 88 1. The shooting deaths ofDewayne Amold and Regina Watchman.............. 89 2. The shootings of Leslie Trudell, Beulah John and Rodney James............. 99 il D. Counsel Did Not Invite The Errors............... es sesssessecesccesesesceescsseeseeenes 103 E. The Errors Require Reversal. .............cccsssssscescecesseeeeessseceecssseeesessesesensenes 106 1. Respondent bears the burdenofproving the errors harmless beyond a reasonable doubt because they violated Matthew’s federal constitutional TIGNES. 2.0.1... esseeesesscseccescssseserseseeecseosscseessesccescsesnsessessescesssensesesesseeessessesneesss 106 2. The jury’s verdicts do not prove beyond a reasonable doubtthatit resolved the questions omitted by the voluntary manslaughter instructions under a correct application ofthe laW...............ccsessesseseeeeeeees 107 3. The jury’s verdicts do not prove beyonda reasonable doubtthatit determined the shootings of Leslie Trudell, Beulah John, and Rodney James wereintentional or that the omission ofinstructions as to those VICTIMS WAS harmless...............cccscccsssssscescecssssccecssssscsesesescessssccerssscssssecensencess 112 4. Considering the evidence as a whole, respondent cannot prove beyonda reasonable doubt that the errors did not affect the verdicts.......... 116 I. THE CUMULATIVE EFFECT OF THE OMISSION OF CRITICAL INSTRUCTIONS ON HEAT OF PASSION AND PROVOCATION AND THEIR RELATIONSHIP TO PREMEDITATION ALONG WITH THE PROSECUTOR’S REPEATED MISSTATEMENTS OF THE APPLICABLE LEGAL PRINCIPLES VIOLATED STATE LAW AND MATTHEW’S FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, TO PRESENT A DEFENSE, AND TO A RELIABLE GUILT PHASE DETERMINATION AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS...0.......ccccsscssceseecessesssesenseseeesssssseceeseseneeeeennenes 122 A. troduction. ............ecccccccscseccccsceccssescecccccccccsecccececseessseseccceeescssceecscecs 122 B. The General Legal Principles Regarding Instructions, Arguments, And TheInterplay Between The Two............::cccccsssssssssseeessesessceseceesseesseeeeeees 124 1. The trial court’s instructional obligations..................ccccccsesccseseeeseeseeeeseees 124 2. The prosecutor’s Cuties...cscsssssecssrecceeceecscssseeeseseecuessecsssseescssesenenes 127 3. The interplay between instructions and argument................ccsccscsseeseeeee 128 lil C. The Legal Principles Applicable To Second-Degree Murder In A Subjective Or Unreasonable Heat OfPassion...............c:ssscsecsssetssesestseeteeseneees 129 D. The Trial Court Violated State Law And The Federal Constitution By Failing To Provide Complete And Accurate Instructions On The Defense Theory That Matthew Was Guilty OfThe Lesser-Included Offense Of Second-Degree Murder Due To An Unreasonable Heat OfPassion............... 134 E. The Interplay Between TheInstructions And Arguments Created A Reasonable Likelihood That The Jury Was Misled To Apply The Instructions In A Way That Violated The Federal Constitution.................++ 141 F. Reversal Is Required...........ccsccssessessssceeessesneeteneesnseessneceseesnecerensensssessonees 152 IV. REVERSAL OF THE ATTEMPTED MURDER CONVICTIONSIS REQUIRED DUE TO AN AMBIGUOUSINSTRUCTION RESULTINGIN A REASONABLELIKELIHOOD THAT THE JURORS MISUNDERSTOOD THAT IT COULD RETURN GUILTY VERDICTS WITHOUT FINDING THAT THE PERPETRATOR SPECIFICALLY INTENDED TO KILL THE VICTIMS AND NOT MERELY THE TARGETS, IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS........ 156 A. Tntroductiion:..........0.0.ccsccccccccsesssssscecccescccecccccsscscccceeceecssceccceccccecsaseecccenconeees 156 B. Attempted Murder Requires ProofBeyond A Reasonable Doubt That The Defendant Specifically Intended To Kill The Particular Victim, Not SomeoneEIse...........ccescceessccescsecccecccecsssscessssssssssaseessseeseeesneeseacesassneeenseseracsoeeuees 157 C. From TheInstructions And Arguments As A Whole,It Is Reasonably Likely That The Jurors Misunderstood ThatIt Did Not Need To Find That Matthew Specifically Intended To Kill James And John In Order To Convict Him OfAttempting To Murder Them With Premeditation And Deliberation. .............ccccsccscssesccsecscececceesssssscsscensessceesseesaeeseessaesscessoeeenersseesonsaes 158 D. The Error Was Not Waived..............:cssscscssssseescesssensenseennsneesnerenaeneeeeeeees 161 E. The Attempted Murder Convictions Must Be Reversed Because Respondent Will Be Unable To Prove The Error Harmless Beyond A Reasonable Doubt. .............cscccsccscccsecececeeessssessesnscessscnsseenceeeneeesneenncesseeserereneeoons 162 V. THE PROVISION OF CALJIC 17.41.1 VIOLATED MATTHEW’S iv SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS AND TRIAL BY A FAIR AND IMPARTIAL JURY AND REQUIRES REVERSAL...eecesscsssscsssecsssssnsscsensecseescessescsesssscscessscssesscesssseaesseanssesenseacensenees 163 VI. REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR VIOLATED MATTHEW’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESSBY USING FALSE EVIDENCEIN THE GUILT AND PENALTY PHASES TO SECURE MATTHEW’S CONVICTIONS AND DEATH SENTENCE,..........csesecccsoesetesseesesesesceereeeeneees 166 A. [ntroduction. 20.00... ceccccccecccccccccccecccceccesccecscscceccccssccecesececcccececcceccesesesences 166 B. The Prosecutor’s Use OfFalse Evidence Throughout His Guilt And Penalty Phase Arguments Violated Matthew’s State And Federal Due Process Rights To Fundamental Fairness..................scsssccssssseceeseecsseensersseeeees 166 C. Reversal Is Required...ecceesceceenceseceseeeccaceeceeseeeeescesesecacsesssnssanees 173 Vil. THE TRIAL COURT’S EXCLUSION OF QUALIFIED JURORS AND REFUSAL TO EXCLUDE DISQUALIFIED JURORS UNDER THE WAINWRIGHTV. WITT STANDARD VIOLATED MATTHEW’S RIGHTS TO A FAIR AND IMPARTIAL JURY, TO DUE PROCESS OF LAW, AND TO A RELIABLE PENALTY DETERMINATION AS GUARANTEEDBYTHE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT............:csccssseeseeseesssecessecseccerseceeesessseeeceneeseeees 178 A. Introduction. 200...cececeeeeeceeceeessssesesacesessesssessesssacessessesssscnesessesseaneseeees 178 B. The General Legal Principles...................essesseseceseeresccesssescseeensceeesseeseees 179 C. Prospective Juror Mada...ceeeescseseceesessssseneceeseeeceesssseseseseesesereeees 182 1. Prospective juror Madali’s responses to the jury questionnaire and on voir dire and her dismissal for CaUSe.................:::sccsesesersssssceesseeeeeseeeeeees 182 2. The exclusion ofprospective juror Madali for cause was unsupported by substantial evidence that her feelings about the death penalty would preventor substantially impair her ability to perform her duties as a JULOL. oo.eeceeeeeseeececneceensceeseessssesorsesscensesesesenecssssessesseessussesssssrsssessseserseeeees 187 D Prospective Juror Froylangd. 0.0.0...seceeeeeeeeeesseeeecececneerenseenseseeseeteseeees 196 1. Prospective juror Froyland’s responsesto the jury questionnaire and on voir dire and his dismissal for CauSe....................ccesesecccecoccesesseseccoeee 196 2. The exclusion ofprospective juror Froyland for cause was unsupported by substantial evidence that his feelings about the death penalty would prevent or substantially impair his ability to perform his duties as a JUTOT, 200...ceccceseecececcceececencscnesesccesenrasseseusscsensssesssesenscseeescsessessccecesseesenssers 197 3. Counsel’s “non-opposition” to the court’s dismissal ofMr. Froyland for cause did not waive Matthew’s right to challenge the error on APPA...eceeeeeeesceceececesececesescesecersesscseessnceeseecensececsuaeesseeesseesssesssseeeeseeeeessas 198 E. Juror NO. 5. cececectcscscccccececccscusecencesecsccccuscssccccccccsascccsssseescccesesecceccsees 200 1. Juror No. 5’s responses to the jury questionnaire and on voir dire and the court’s refusal to dismiss him for Cause.............cccsscsscsssessseesssseeeeees 200 2. The court’s refusal to dismiss Juror No. 5 based uponits implicit finding that he could follow his oath and perform his duties as a juror was unsupported by the evidence................:ccsscssscescsssesscsneesssscccenssesenceeeeeees 202 3. Matthew’s rightto a fair and impartial jury was not waived by his counsel’s failure to exercise a peremptory challenge to exclude Juror NO.5. oo .cceeescseesetecsseescesessceeeesncssnccesesssessssesseseesssecseeescesesneeesseeecescesseaesenereatens 205 F. The Actions OfThe Trial Court And The Prosecutor Produced A Jury Culled OfAll Those Who Revealed During Voir Dire That They Had Conscientious Scruples Against Or Were Otherwise Opposed To Capital Punishment, Which Violated Matthew’s Rights to A Fair And Impartial Jury And Requires Reversal. 2.0.0... essseceessecscecssescceenseeseneeeeeneesscaeseesseseaeees 215 1. Thetrial court applied the Witt standard in an arbitrary and capricious manner, which was fundamentally unfair and amounted to an abuse of discretion not entitled to deference...eseceseceeeeesecsceeeseeeeseaceseesoeseeeses 216 a. “Death-inclined” jurors whom the court refused to excuse for CAUSE. 20.0... .ccesecessccescccecsnccescnscceesensnccescccetscceceseneseesssacceesesceeeseeesesccesseeeeesens 218 b. “Life-inclined” jurors whom the court excused for cause................. 225 2. The prosecutor’s exercise ofperemptory challenges to excuse the few life-inclined jurors who remained produced a jury from which all such jurors were excluded and violated Matthew’s rights to a fair and UMpPartial JULY. .........e eseseessececeeeseecsecsesetccceceenscteceesesceesnsceneesetensessesesseresseaeees 228 vi VII. THE PENALTY PHASE JUDGMENT MUST BE REVERSED BECAUSEIT IS REASONABLY LIKELY THAT THE JURORS READ THE COURT’S MODIFIED LINGERING DOUBT INSTRCTION TO PRECLUDE CONSIDERATION OF THEIR LINGERING DOUBTS REGARDING MATTHEW’S ROLEIN THE CRIMES, IN VIOLATION OF STATE LAW AND THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS..........csccssccsssscceeecssesscessceccnseccesecesesesseecesenecseneeeceesscesesasenseseeeass 231 A. Introduction. 20...eee ceeeeeeeeeceencenseeeeneececeeseneneeseesscenacseceeseeeseencesseensesneeenes 231 B. The Controlling Legal Principles. 20.0.0... ceeccesseeseecoseeeceeeeeeneneesseeeensessees 232 C. ItIs Reasonably Likely That The Jurors Misunderstood That They Were Precluded From Considering And Giving Effect To Their Lingering Doubts That Matthew Was The Actual Shooter In Deciding Whether To Execute Him Or Spare His Life...eeecsseeeseceessesecseceeesenceeaseensereeaeeasees 239 1, The instructions. 2.0.0.0... ecsecsseseesseeeeceeeeseceeceeeesecsessesseesseeseeaceeteneceeesensees 241 2. The argument. .0........ccecccscecessececcessccesoessecensnecesaceresseceeesceeeeceesseessseeeenses 249 D. Reversal Is Required.............2. ee seeesseeseeesneesvesenesssccessccssencesssacesssssonscseneees 255 IX. THE OMISSION OF, AND AFFIRMATIVE DIRECTION TO DISREGARD, PREVIOUSLY GIVEN EVIDENTIARY INSTRUCTIONS IN THE PENALTY PHASE VIOLATED STATE LAW, MATTHEW’SRIGHTS TO A FAIR TRIAL AND A RELIABLE PENALTY PHASE JUDGMENT UNDERTHE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS, AND REQUIRES REVERSAL OF THE PENALTY JUDGMENT............eccesseeeeees 265 A. Umtroduction, 22.0...eeeceeeereceecceeesneceesceesssencseascesecsseessseeessseeesseseseeseeee 265 B. The Omission Of, And Affirmative Direction To Disregard, Critical Evidentiary Instructions In The Penalty Phase Violated State Law And Matthew’s Rights To A Fair Penalty Phase Trial And A Reliable Penalty Phase Judgment Underthe Fifth, Eighth, And Fourteenth Amendments........ 266 C. The Penalty Judgment Must Be Reversed.....0......eeteeeseseeeeseeeesesseseeeess 269 X. THE COURT’S EXCLUSION OF HIGHLY RELEVANT MITIGATING EVIDENCE VIOLATED MATTHEW’S RIGHTS UNDER Vil STATE LAW, AS WELL AS THE EIGHTH AND FOURTEENTH AMENDMENTS, AND REQUIRES REVERSAL OF THE DEATH JUDGMENT.........:cccsccssseccccccscececceeescseasseesssssesssssssassseseceeseesseeseeeeseeecseeeessrssnnenenes 280 A. Introduction. ...............cccccccccccccsssssccscssccccccencccceencesceceneeeceeeeencaseccccccenceeeeeees 280 B. The Trial Court’s Exclusion OfHighly Relevant Mitigating Evidence Violated State Law As Well As Matthew’s Rights Under The Eighth And Fourteenth Amendments...............sscceessscsecesceecsceeseeessssssscesssassssseesesseseeseneeseesees 281 C. The Error Require That Matthew’s Death Sentence Be Reversed........... 290 XI. THE TRIAL COURT’S PROVISION OF AN INCOMPLETE INSTRUCTION ON VICTIM IMPACT EVIDENCE VIOLATED STATE LAW AND MATTHEW’SFIFTH, EIGHTH, AND FOURTEENTH _AMENDMENTRIGHTSTO A FAIR PENALTY TRIAL AND A RELIABLE PENALTY JUDGMENT AND REQUIRES REVERSAL.............. 291 A. Tntroductiion. ...............cc0cceeccccecccscscscececccecuscnseccccccsecccerecsscescececeenessssseseeeees 291 B. The Special Victim Impact Instruction Was Incomplete, Improper, And Permitted The Jury To Consider Improper Evidence In Aggravation In Violation Of State Law And Matthew’s Rights Underthe Fifth, Eighth, And Fourteenth Amendmentts...............cccceccsssssscessesssserenssensseeesseeseeneeeseeesnenees 291 C. Reversal Is Required...secsscssessceesssssseeseessesseseeseeenssneanessestesseseeees 297 XI. THE CUMLATIVE EFFECT OF THE ERRORS REQUIRE REVERSAL OF THE PENALTY JUDGMENT.........cccsssesscesessssnsssceeesneesseenens 297 A. Reversal OfAny One OfThe Convictions Requires Reversal OfThe Penalty Judgiment................cscceessessessesesesseessssecsnssceessnensnnenseassessnssseasssessvenseesenes 297 B. The Errors Committed In The Guilt Phase Require Reversal OfThe Penalty Judgment Even IfThey Do Not Require Reversal OfAny OfThe COMVICHIONS............cccccceceessesscccesseeeceeesceecseecceseccesncceessseasssessseusoonssnsssesncecentenessnes 299 C. The Cumulative Effect OfThe Guilt And Penalty Phase Errors Requires Reversal OfThe Penalty Judgment..............ccccsssscesssnecceeesnceeeneteees 301 XII. MATTHEW’S DEATH SENTENCEIS CRUEL AND/OR UNUSUAL BECAUSEIT IS GROSSLY DISPROPORTIONATE TO HIS PERSONAL CULPABILITY..0.......:cccsccssecssssssessessceesssesenseesneseeeesneesseesneesneeeners 301 Vili XIV. THE TRIAL COURT’S REFUSAL TO PROVIDE AN INSTRUCTION CLEARLY GUIDING THE JURY’S CONSIDERATION OF THE SCOPE AND PROOF OF MITIGATING CIRCUMSTANCES VIOLATED MATTHEW’S RIGHTS UNDER STATE LAW, AS WELL AS THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS, AND REQUIRES THAT HIS DEATH SENTENCE BE REVERSED...........0::::::00000: 314 XV. THE PROVISION OF CALJIC NO.8.85, WHICH INCLUDED INAPPLICBLE FACTORS AND FAILED TO SPECIFY WHICH FACTORS COULD BE MITIGATING ONLY, VIOLATED MATTHEW’S RIGHTS UNDERTHE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS AND REQUIRES REVERSAL OF THE PENALTY JUDGMENT.........ccccccseccecsssececesecoessesssesssscsucensscasscsseesensseenssensecssecsseeneesseesseenaceags 321 XVI. THE PROVISION OF CALJIC NO. 8.88 DEFINING THE NATURE AND SCOPEOF THE JURY’S SENTENCING DECISION, VIOLATED MATTHEW’S RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTSOF THE FEDERAL CONSTITUTION AND REQUIRES REVERSAL OF THE PENALTY JUDGMENT..........c:ccsscsscessesceesesseseseeeneeseees 326 A. TheInstruction Caused The Jury's Penalty Choice To Turn On An Impermissibly Vague And Ambiguous Standard That Failed To Provide Adequate Guidance And Direction..............ccsssesesesssseeerenseeesceseeeenenesesesesenees 327 B. The Instruction Failed To Inform The Jurors That The Central Determination Is Whether the Death Penalty Is The Appropriate PUNiSHMEdt.............cccccceceecesecececcecccessscsscssssscssceecessssnceesecesnsenssenscenceseseseeeceeoesees 330 C. TheInstruction Failed To Inform The Jurors That IfThey Determined That Mitigation Outweighed Aggravation, They Were Required To Return A Sentence ofLife Without The Possibility Of Parole................:00 332 XVII. THE SPECIAL CIRCUMSTANCE OF MULTIPLE-MURDERFAILS TO NARROWTHE CLASSOF PERSONS ELIGIBLE FOR THE DEATH PENALTY AND THUS VIOLATES THE EIGHTH AMENDMENT.............. 336 XVIII. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT MATTHEW’S TRIAL, VIOLATES THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND ITS APPLICATION TO MATTHEW’S TRIAL REQUIRES REVERSAL OF THE PENALTY JUDGMENT...........ccccscccscescecceesseeesseesssesssssssssessssenseceesseseussesneeaeeeesesssaeeasennesseeenenees 340 ix A. Matthew's Death Sentence Is Invalid Because Penal Code Section 190.2 Is Impermissibly Broad..............cscsesesssssssseneeeeessnenssseaeseneneeessenneseeeeseees 342 B. Matthew's Death Sentence Is Invalid Because Penal Code § 190.3(a) as Applied Allows Arbitrary and Capricious Imposition ofDeath in Violation ofthe Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution ..............ccccccsssccsssensesesseeeesscecenceseeerseeessesscessceeescceeesseeeeeerees 345 C. California’s Death Penalty Statute Contains No Safeguards to Avoid Arbitrary and Capricious Sentencing and Deprives Defendants ofthe Rightto a Jury Trial on Each Factual Determination Prerequisite to a Sentence ofDeath; it Therefore Violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution ...............eseeeeees 351 1. Matthew’s death verdict was notpremised on findings beyond a reasonable doubt by a unanimousjury that one or more aggravating factors _ existed and that these factors outweighed mitigating factors; his constitutionalright to jury determination beyond a reasonable doubt ofall facts essential to the imposition of a death penalty was thereby ViOlated, .........cccceeeescctcecececscesccecneesscesssacecesesessscssssscsseascesessessenseressenseseeneeees 352 a. Inthe wake ofApprendi, Ring, and Blakely, any jury finding necessary to the imposition of death must be found true beyond a reasonable COUD..............c-cseecssssessseeseeesecsssessssccsscnssessscessessessesenseseneeeees 354 b. The requirements ofjury agreement and unanimity................---+-+++- 362 2. The Due Process and the Cruel and Unusual Punishment Clauses ofthe state and federal constitutions require that the jury in a capital case be instructed that they may impose a sentence of death only ifthey are persuaded beyonda reasonable doubtthat the aggravating factors outweigh the mitigating factors and that death is the appropriate PEMAIY.......eeesscessesceeseenesesenenseceseceesesecsesssscceasensesseeseessessscnsasesseserseneasnees 367 3. Even ifproofbeyond a reasonable doubt were notthe constitutionally required burden ofpersuasion for finding (1) that an aggravating factor exists, (2) that the aggravating factors outweigh the mitigating factors, and (3) that death is the appropriate sentence, proofby a preponderance ofthe evidence would be constitutionally compelled as to each such FIMGING..........--e-cesescencsseeceseccesessssescesessetsresessessesenesesenserenseacersorenscesssnecareeeesesess 372 4. Some burdenofproof is required in orderto establish a tie-breaking rule and ensure even-handednes.................cceeeeececeesesnccceneeessecenaeseeeccaeceeoees 374 5. Evenifthere could constitutionally be no burden ofproof, thetrial court erred in failing to instruct the jury to that effect. ...........ceseeceeeeeeens 374 6. California law violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution by failing to require that the jury base any death sentence on written findings regarding aggravating FACTOLS. .....eecceccsesesssssccssscesecessccescucesnecceeesscesecsescasscsssssecscseseeseeassecenssesessaeseuses 375 7. California’s Death Penalty statute, as interpreted by this Court, forbids inter-case proportionality review, thereby guaranteeingarbitrary, discriminatory, or disproportionate impositionsofthe death penalty.......... 378 8. The use ofrestrictive adjectivesin the list of potential mitigating factors impermissibly acted as barriers to consideration ofmitigation by Matthew’s jury.........csescccsssscsssessscessessssesesesnessscesseseecenseaseeseeaenenserscnsersssanetens 382 D. Failure To Require Instruction On Presumption OfLife................---+0++ 384 E. The California Sentencing Scheme Violates the Equal Protection Clause ofthe Federal Constitution by Denying Procedural Safeguards to Capital Defendants Which Are Afforded to Non-capital Defendants.............. 385 F. California’s Use ofthe Death Penalty as a Regular Form of Punishment Falls Short ofInternational Norms ofHumanity and Decency and Violates the Eighth and Fourteenth Amendments; Imposition ofthe Death Penalty Violates the Eighth and Fourteenth Amendmentsto the United States Constitution. ...........ccccccccccssscccceccecsessecceccceceececerssceessceesscucesseseeeees 391 1. International Law.............ccccc:cccecccsccessccecccccesncceeceeeceeeesncsesssecuseeencessssesess 392 2. The Eighth Amendment..............cccssssscessseneseceesseesseesseseseeeseseesenneneaeenes 393 XIX. THE METHOD OF EXECUTION EMPLOYEDIN CALIFORNIA VIOLATES THE FOURTEENTH AMENDMENT’S GUARANTEE OF PROCEDURAL DUE PROCESS AND THE EIGHTH AMENDMENT’S PROHIBITION UPON CRUEL AND UNUSUAL PUNISHMENTG............-.+-+ 395 A. Introduction. .............cccecccccceeseeccccececsceuseccscecsececccesenscceccasnsccenecenseeccessoesoeoes 396 Xi B. The Department Of Corrections’ Failure To Adopt The Regulations Mandated By Penal Code Section 3604 Violates Matthew’s Right To Procedural Due Proce.................cssccsscscssssccsscscesssscccsssseseccecssescsecscsencecacecceeeees 397 C. California’s Lethal Injection Procedure Violates The Eighth AmendmentProhibition Against Cruel And Unusual Punishments................ 401 XX. THE TRIAL COURT’S RESTITUTION ORDERS WERE UNAUTHORIZED AND MUSTBE STRICKEN..............c.ccccccscesesssenscecsseeesees 407 CONCLUSION.0...cece ccecessesssesesesseccesscesssssessnscessecsecsceeesseecusscsassssacasssnssssoosscoess 414 xii TABLE OF AUTHORITIES Cases Adams v. Texas (1980) 448 U.S. 38 oo.cesesssscsssesstesssssesscsecescssesseessesseeseesns 180 Addington v. Texas (1979) 441 US. 418...ceccscssnssssecsseceesseseesessesseeeenees 368 Alcala v. Woodford (9 Cir. 2003) 334 F.3d 862 v..ct.cseccssssssssesssesssescescseeceeess 177, 301 Alcaraz v. Block (9" Cir. 1984) 746 F.2d 593 vescecccssssscssssessesssesssessseecuccseeceecescens 244 Aliwoli v. Carter (7Cir. 2000) 225 F.3d 826 .......csscssccscsscssssecsecssssseesessesssesseenees 128 Allen v. Woodford (9™ Cir. 2004) 366 F.3d 823 ..cccsccscscssssescsssssesssseesseececececeseeenes 287 Andrewsv. Collins (5™ Cir. 1994) 21 F.3d 612 v.sceesccccscessssssssssssssssessseesesecsecseeeane 234 Antwinev. Delo (8Cir. 1995) 54 F.3d 1357 .ccceccsssscsssscssssssesssesssssssussseecsesenseeses 267 Apodaca v. Oregon (1972) 406 U.S. 404 ooo...cssccsssenssnsenstesseessesesseesssecsssenes 165 Apprendi v. New Jersey (2000) 530 U.S. 466.0000... ceccccccsssessscssesseestessneesecestseses 44 Arizona v. Fulminante (1991) 499 U.S. 279 o...eccccssccsssssscenssscessesecceessessecseesseaes 165 Arnold v. State (Ga. 1976) 224 S.E.2d 386.0... ccccsseessesssseeesseesesssesescssseseesverses 328 Arrieta-Agressot v. United States (1% Cir. 1993) 3 F.3d 525 v.ccscsscssssesssseees 128 Attridge v. Cencorp (2nd Cir. 1987) 836 F.2d 113 woeeetseeseeseeeseseeeeneees 164 Austin v. United States (1967 D.C. App. Ct.) 382 F.2d 129...ceeeteeeeees 119 Ballard v. Estelle (9™ Cir. 1991) 937 F.2d 453 v.ecscssccssssssssessesssssssessssscssessesseesaee 236 Ballew v. Georgia (1978) 435 U.S. 223 oo.cccccsssssseeseceseeseeesceseesescesceeceesseeeneees 363 Bank ofJackson County v. Cherry (11Cir. 1993) 980 F.2d 1362....cccsceeoes 397 Barclay v. Florida (1976) 463 U.S. 939 oo. cceesescsssseeesseescesecsessesseeescesessreesseens 379 Barker v. Yukins (6™ Cir. 1999) 199 F.3d 867...ccsccssssssesssessssssesssesssessesssssesssessees 335 Bashor v. Riley (9Cir. 1984) 730 F.2d 1228 wovceccscccsscssssssssssssssssssseestssessens 62, 126 Bean v. Calderon (9™ Cir. 1998) 163 F.3d 1073 .o.sccesssssesssssesstsscssessessesseesssseerees 257 Beazley v. Johnson (5™ Cir. 2001) 242 F.3d 248 voocccccscscsccccssssssssessscsssessssseenees 393 Beck v. Alabama (1980) 447 U.S. 625 oo.eeeceeesecessceecessecsecteceeseesesseesseeensanens 44 Xili Bell v. Ohio (1978) 438 U.S. 637 .....cecscessesssssesseesssesceeneessseesnessesnsensecsnenenensnensees 260 Belmontes v. Woodford cg" Cir. 2003) 350 F.3d 861 oeeeeeeessesereteeseecesseeees 129 Berger v. United States (1934) 295 U.S. 78 ......cceesesessssssssseessssesnsssseseeneneneneaees 127 Blakely v. Washington (2004) 542 U.S., 124 S.Ct. 2531eeeeeeeeeeseeeeee 352 Blystone v. Pennsylvania (1990) 494 U.S. 299ceececsseeeteseesnssesesesenseeenes 316 Booth v. Maryland (1987) 482 U.S. 496 2... cesssssssessssssssceceeeesteeeeeenesseeeneneeaees 292 Bostick v. United States (D.C. App. Ct. 1992) 605 A.2d 916.0...ceceeseetenneee 80 Boyde v. California (1990) 494 U.S. 370 .cceccccccccscecsssscseseceeceseesssssssesseessssssansssssees 129 Bradley v. Duncan (9 Cir. 2002) 315 F.3d 109] ....ccecsessscccssssesseesseseseeceteccueeceeente 61 Brown v. Louisiana (1977) 447 U.S. 323 oo...ee eesssseesseeceesesresnseseessenseenesenenoes 364 Brown v. United States (D.C. App. Ct. 1990) 584 A.2d 537 oo.eec eeeeteeteeteneees 69 Bruno v. Rushen (9Cir. 1983) 721 F.3d 1193 ..ccccccsssccssecssessessessessessesseesseesseesees 176 Buchanan v. Angelone (1998) 522 U.S. 269...cecesssssesessesenseeeeesenseneesees 235 Bush v. Gore (2000) 531 U.S. 98 ooeeeceeesetseseseesssstscsscessessseseessesseeseerenseeteees 390 Buzgheia v. Leasco Sierra Grove (1997) 60 CalApp.4374 ..cccccsssssssesssseseesseeses 247 Calderon v. Superior Court (2001) 87 Cal.App.4th 933 oo... eccscsecseseseesscsseseeeeees 37 Caldwell v. Mississippi (1985) 472 U.S. 320.0...eeeeesseseesessnseesessescnesseestensenenes 62 California v. Brown (1987) 479 U.S. 538 woescsceseeessesscseesesessesesseeeseenseeeenee 267 California v. Ramos (1983) 463 U.S. 992oeceeeeeessessssescsseseessesesseensnerenes 389 California v. Trombetta (1984) 467 U.S. 479 oooceeteceeeseseseeseeesecesenseeseeeees 151 Campbell v. Wood (9th Cir. 1994) 18 F.3d 662.0...csssecenessesesseneeeessseesees 402 Carella v. California (1989) 491 U.S. 263.00...eeeccceneceecesseceeecseeseeessessssssssenenes 59 Cargle v. Mullin (10™ Cir. 2003) 317 F.3d 1196......ccccccssssssssssscssssesesseseatecateeeeeees 280 Cargle v. State (Ok App. Ct. 1995) 909 P.2d 806 00...ees ceeeecneseeseeeeneneeees 294 Carter v. Kentucky (1981) 450 U.S. 288.0...cece ceeeceseeceseeeeeeeeesseeeesesnseneeneseaees 142 Chambers v. Mississippi (1973) 410 U.S. 284eeeeeceseceeeseseeceseseeeseseesesateeoes 151 Chandler v. Florida (1981) 449 U.S. 560 ooo...eeeeeeeceeeeenectesseseeeesanectsnsesonensenes 267 Chandler v. United States (11 Cir. 2000) 218 F.3d 1205 .......cescsscssseesessseeseeses 234 Chapman v. California (1967) 386 U.S. 18.eectceeesesceseceneeeesenseneeeees 107 xiv Charfauros v. Board ofElections (9th Cir. 2001) 249 F.3d 941 oo...eee390 Clark v. United States (1933) 289 U.S. Looeseceaccssceeecsnessseeseesssssesseeseeesenees 164 Clemons v. Mississippi (1990) 494 U.S. 738 .......ccsscccssssscssssssssssssessesseessseessees 296 Coleman v. Calderon (9 Cir. 1999) 210 F.3d 1047 ..ocsceccccssssssssssessssesssssesesseeseees 272 Commonwealth v. Bell (PA 1986) 516 A.2d 1172 oo...eccceeeeesceecescseneeesseseees 70 Commonwealth v. Means (Pa. 2001) 773 A.2d 143 ooo... eeecseeeeeesteseseeceeeeeneers 294 Commonwealth v. O’Neal (Mass. 1975) 327 N.E.2d 662 ..........ccsscsssscesssecceseees 385 Conde v. Henry (9Cir. 1999) 198 F.3d 734. ccccscsssssssssessesssscssssssseessesessessssssesseenes 61 Conservatorship ofRoulet (1979) 23 Cal.3d 219 oo...csseseeseeseceseseseseeeenees 369 Consorti v. Armstrong World Industries, Inc. (2™ Cir. 1995) 72 F.3d 1003....... 381 Cool v. United States (1972) 409 US. 100 wo...eeeeeeseeeeeceeseseeeeenceeenceseneseees 336 CooperIndustries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424....360 Cooper v. State (Fla. Sup. Ct. 1999) 739 S0.2d 82 oo...eee seccseseeseeceeeeeeneeneee 309 Cordova v. Lynaugh (5th Cir. 1988) 838 F.2d 764 0...csccsceeeeeecsetsceesensteeseeees 62 D.P.P. v. Camplin (1978) 67 Crim. App. 14.00... eeeeeeseseeceseeeesseesnseceereeeneeneeees 78 Davis v. Georgia (1976) 429 U.S. 122 oooceeseceeeesecseeeetseeeseeeeeeaeeneneeeeeeatees 182 Dear WingJung v. United States (9th Cir. 1962) 312 F.2d 73ueecceeteeaees 399 Delo v. Lashley (1983) 507 U.S. 272...eccecsccssssccsceeessesceescsseeceeeesacerseacensescneenees 384 Douglas v. Alabama (1964) 380 U.S. 415 oo...eeeseesecseesesceeeseesseesceecesesssceeeesces 271 Douglas v. Woodford (9Cir. 2002) 316 F.3d 1079 ....scsscesssssssesssesssesssessessesseeees 261 Drayden v. White (9th Cir. 2000) 232 F.3d 704 oo...eee eesssseeessecneeeeeeeseerscesees 293 Eddings v. Oklahoma (1982) 455 U.S. 104.0...eeesceeeceecesenseceeeesseeseaeeneeecees 188 Enmund v. Florida (1982) 458 U.S. 782 0.0...cccssscssseceseeseeseceseecesecesetsetsnes 256, 302 Estelle v. Gamble (1976) 429 U.S. 97 oo. ccceesececcsssscesesecnsssscseesceseesesssseessecesseenes 402 Estelle v. McGuire (1991) 502 U.S. 62 0...cccccssceesceeccsecsssssceatscesssssesasenseesees 129 Estelle v. Williams (1976) 425 U.S. 501 oo. eeceeessscceecesceseeesecescenseecsssscesseseseeees 384 Everette v. Roth (7™ Cir. 1994) 37 F.3d 257 ..ccesssscsssssessessssssssssessssssesssesssesseeseeseeses 60 Evitts v. Lucey (1985) 469 U.S. 387 oo... cccesssssssssssssescesserscesceseessseececessesesseesnenees 335 Fetterly v. Paskett (9Cir. 1993) 997 F.2d 1295 vescecccccssccsssssstsssesssessessesassseesees 236 XV Fierro v. Gomez (N.D. Cal. 1994) 865 F.Supp.1387 .........ccccccccsssscccssssesceseeserees 402 Ford v. Wainwright (1986) 477 U.S. 399 ....cccsscccsssccescccsecssecssecssecsssesssecssssecssscessns 324 Francis v. Franklin (1985) 471 U.S. 307 .ccesssesscsssssccssecuscessecccusscussssnessuccsssecsssecssns 246 Frolova v. U.S.S.R. (7 Cir. 1985) 761 F.2d 370 ....ccscssccsssssseesssesssscssecsessccssecsssess 392 Furman v. Georgia (1972) 408 U.S. 238 ....ccessssssssssscsssesccsseccecsssessseseseessaseen 337, 342 Gall v. Parker (6™ Cir. 2000) 231 F.3d 265.....cccccccseccceseccsssssecsssccssesssescssscsssecsssees 193 Gardner v. Florida (1977) 430 U.S. 349......cccsssscssccssscoesessseessessssessecssnsessseceses 62, 267 Gentile v. State Bar ofNev. (1991) 501 U.S. 1030...ecesccesestsesesceeeees 211 Gideon v. Wainwright (1963) 372 U.S. 335 v..ccesssccssscsssccseccecsseessssessecssssecsseesssees 334 Godfrey v. Georgia (1980) 446 U.S. 420 w.cusccsscsssscssesessscsscsseesssecssesssseen 330, 342 Gomez V. Fierro (1996) 519 U.S. 918 ..sccsssssscssscssccocsssesccsussssesseccssuecssecesssesssecesees 402 Gray v. Klauser (9™ Cir. 2001) 282 F.3d 633 ....c.cscssscsssssssssessssessssscssssscssssssecsssees 181 Gray Vv. Mississippi (1987) 481 U.S. 648 ...cssscscsssssssccssssssssssesssssssssseesesseeseseneeseees 182 Green v. Georgia (1979) 442 U.S. 95...sessesasecesecessscsessecsssessssesssueessaseesneeeen 237 Gregg v. Georgia (1976) 428 U.S. 153 ..ceccsescssscsssscssccesecsesessessssessssesscesssssesssesssees 192 Griffin v. United States (1991) 502 U.S. 46 .....scecccssccssceccsssessssesscsssecssecessees 363, 373 Hain v. Gibson (10 Cir. 2002) 287 F.3d 1224 ....ccccccosescsssccssescosssesssssscsssssssessves 293 Hamilton v. Vasquez (9 Cir. 1994) 17 F.3d 1149 ...ccccccccccsecsssecsssecsssccsssesesssseon 264 Harmelin v. Michigan (1991) 501 U.S. 957 .....scsccssssscossssssessessecsasecssesecessssssevsnses 302 Harris v. Dugger (11™ Cir. 1989) 874 F.2d 756 ...ccccccssscssssscsssscsssssscscssecsesssscessees 264 Hendricks v. Vasquez (9th Cir. 1993) 974 F.2d 1099.00....cccccccsssssssessscssscecesssee 383 Hicks v.Oklahoma (1980) 447 U.S. 343 c.eccescccssssssssssssesssssessseeessssesssessassesesseseen 236 Hildwin v. Florida (1980) 490 U.S. 638.........ccscssccesccosssssscssccssssssesessesssecsssesesseen 363 Hilton v. Guyot (1895) 159 U.S. 113 ceccccscssssessesscecscesssssssssecssecsseccssesssscsssessssssoe 394 Hitchcock v. Dugger (1987) 481 U.S. 393 ....ssssscssccssscescssessssecssccssssesscsssscsssesssseees 244 Hooks v. Ward (10 Cir. 1999) 184 F.3d 1206.......cccssssssssssessesessesscssecsssessosseecoses 125 Howell v. State (Alask. Ct. App. 1996) 917 P.2d 1202 .....ccccccccescsssescsescssessosescones 70 Hudson v. McMillian (1992) 503 U.S.Lon...sessesssssuscssssssoussssensuecessssnuesecessen 401 Hughes v. United States (6™ Cir. 2001) 258 F.3d 453 cccccccsssssscssssssssesssseescoseecoone 181 In re Anderson (1968) 69 Cal.2d 613 oo...ccsesesssssssseccesssssesssscssacscsesseessseeseeters 199 In re Carpenter (1995) 9 Cal.4™ 634.0... csccsscsccescessessssssessssssessesseccessssscescesseesseceee 211 In re Cordero (1988) 46 Cal.3d 161 oo...cecececcssssssssscscssesssacscssssesssssecsacceseneses 81 In re Ferguson (1971) 5 Cal.3d 525.0...ccccessssssescecccsssssssssssessesscseseccesseccesssenssaes 127 In re Foss (1974) 10 Cal.3d 910 ou...cesscsssssssescesessscsssssssessssessesecescsseseseaseacaeaes 302 In re Hitchings (1993) 6 Cal.4™ 97 oocscccsscsessessscssscsesssessessessesssssasscsesscsseeseeeees 211 In re Horton (1991) 54 Cal.3d 82 00...eeescsssssseccsssssscsesssssecssscesesessesstsssecscssceeaes 210 In re Kemmler (1890) 136 U.S. 436.0... .ccccccssscssssscssssssscssscsssssseseessseccacessseeessecaes 401 In re Lucas (2004) 33 Cal.4682 ...c.ccescssesssescssscceecoeecsoscsssssecssecsssecssssesecssessssecseee 261 In re Lynch (1972) 8 Cal.3d 410 oo... escssessesescessssessssscscsecsesessseecsecesecsscsucaeseees 302 In re Martin (1987) 44 Cal.3d 1a...ecccssssssesssesesscssscsssscsessscsscsctesessassccasesenenssseee 264 In re Mendes (1979) 23 Cal.3d 847 o....ccessescssscssscssssssssssssssssecsececsseesescsassacacsnees 206 In re Mosher (1969) 1 Cal.3d 379 ........cccccsscsssscsccsssscescccssceacerseccesssssssseessencesesecs 104 In re Reed (1983) 33 Cal.3d 914 oocccsscsssssssessecescsscssssscssssssstecssesssecarensarecsas 311 In re Rodriguez (1975) 14 Cal.3d 639 .........cccccsssssssesesssssssscsccssssesecseeceesecececensscece 303 In re Rodriguez (1981) 119 Cal.App.3d 457cccsscsssseccsssssssscscssssccecescecenens 127 In re Sergio R. (1991) 228 Cal.App.3d 588 ...........ccccccssscssesessscsssscssecssseseacacececess 113 In re Stanford (2002) 537 U.S. 968 ........ccccccscsscscscsccsssesssssssccsessscecsceseessecssssensans 310 In re Sturm (1974) 11 Cal.3d 25820.csscsecesssssscesessssesessencssssssesssnsssssaeseeseas 376 In re ThomasC. (1986) 183 CalApp.3d 786 ...........cccssccsscssesssssscsssesesscessseneseces 81 Izazaga v. Superior Court (1991) 54 Cal.3d 356.000...ccccccccsssesssssscsnsesceceececeees 334 Jackson v. Calderon (9" Cir. 2000) 211 F.3d 1148.cccesstentesceeeeees 259 Jackson v. Herring (11Cir. 1995) 42 F.3d 1350 o.....esccsscsesccssscccssseceesseeesouceeas 259 James v. Borg (9™ Cir. 1994) 24 F.3d 20 .cecseecscsscscsscscesecsescsessnesssssessecsaccsscssneee 259 Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. 110...eeeceeeeceseeeeaee 395 Johnson v. Armantrout (8 Cir. 1992) 961 F.2d 748 ....cccsssccsscsessssscsecssessesseessesees 212 Johnson v. Mississippi (1988) 486 U.S. 578 .......c.ccssccesesseeseccessssssseseseeeeese 298, 325 Johnson v. State (Nev. 2002) 59 P.3d 450 .....eesesscsssessesnesssesssssesssesssessesseee 355, 359 Johnson v. Texas (1993) 509 U.S. 350........ccccccesccseseseseesecsseccssssesesesessesceseseereceees 260 XVii Johnson v. Zerbst (1938) 304 U.S. 458 oooeecesesenscseenseeessensnseseerersesrenensees 209 Killian v. Poole (9™ Cir. 2002) 282 F.3d 1204 ..c.cccesscssssssssessssssssssssessssssseesssseeess 167 King v. United States (D.C. 1967) 372 F.2d 383 .cscsssssssssssssssssssssssssessseessssseseeees 175 Kinsella v. United States (1960) 361 U.S. 234...cccccccsssecsssesssseessssssesssesssseesseeoess 389 LaGrandv. Lewis (D. Ariz. 1995) 883 F.Supp. 469, aff'd (9th Cir. 1998) 133 F.3d 1253 cesseesscssssessssecssssessssssucsssesssssessssesssessusessssssscesssesssessssssussssesseesssessasessseess111-406 LeMons v. Regents ofUniversity ofCalifornia (1978) 21 Cal.3d 869................ 246 Lindsey v. Washington (1937) 301 U.S. 397 uu...csssccstsescsecsstessssesssesscsesensees 407 Livingston v. State (Fla. 1988) 565 S0.2d 1288 ....c..ssesssesssssssssesssssssecsssessssessssesees 311 Lockett v. Ohio (1978) 438 U.S. 586 ..ccescsssscsssssssssessseessecsssssssssesstssssessneessseees 62, 237 Lockhart v. McCree (1986) 476 U.S. 162 c..ccsssssssssssssssssscsssssssessssecsssesneecssssesseeees 187 Lowenfield v. Phelps (1988) 484 U.S. 231 vvctescssssesssssssessssssssecssesesseseneeeenes 337, 340 Maher v. People (Mich Sup. Court 1862) 10 Mich. 212 ........c.cssssssssssssscssssssseeseeons3 Mak v. Blodgett (9™ Cir. 1992) 970 F.2d 614 .o.cccecccssssssssssessssescsssssesseesseessseesseaees 177 Marshall v. Union Oil (9th Cir. 1980) 616 F.2d 1113 ..cc.csccssssssssssssesccssesssesccsesnee 398 Matthews v. Eldridge (1976) 424 U.S. 319.vccessscssssssssesssescssssstessecrseccssecesecseenes 369 Maxwell v. Bishop (1970) 398 U.S. 262 ......ccssssessssssssssssscssesssscscnsscsssesseecsseecsesenees 199 Mayfield v. Woodford (9™ Cir. 2001) 270 F.3d 915 vesccssssssssssscsssssssesscesssessseeseee 262 Maynard v. Cartwright (1988) 486 U.S. 356....cccsccscsssscsssssssssssssseecsseccseecsueeecsecnees 328 McCullough v. Bennett (N.D.N.Y. 2003) 317 F.Supp.2d 112......cccscssssessseseeee 212 McDonald v. Pless (1915) 238 U.S. 264 ..o....eccecccceessecncsseenssenscenscecstenseesceeenes 164 McGautha v. California (1971) 402 U.S. 183 ooo.ccsecsecseceseeseescecseeeeees 188 McKenzie v. Day (9™ Cir. 1995) 57 F.3d 146] v.ccesccesscssssscssssssssssssssessssesesaeenens 393 McKoyv. North Carolina (1990) 494 US. 433 oiiecsscccsesccstesessescsescsseseeens 234 Miller v. Lockhart (8" Cir. 1995) 65 F.3d 676.. vesuessussuesneeuesascusenecsutseceneas 278 Miller v. United States (1870) 78 U.S. 268 .u..scescccsssssssssssssccssescssscsssccsecsseecssseeneene 394 Mills v. Maryland (1988) 486 U.S. 367 ....sc.ccscssssssssssssesssssssessssssonesssneccsesennsecavenes 322 Minister ofJustice v. Burns (2001) 1 S.C.R. 283...ccccccsscccsccscsscsscscssssseneee 392 Monge v.California (1998) 524 U.S. 72] .cccscsesssessssesssesssesssssssseseneesssecueeesneceneees 362 XVili Morgan v.Illinois (1992) 504 U.S. 719 ooteesccececcesceseessecssteceesesscsseseesseesenes 179 Morrison v. Colorado (Co. 2000) 19 P.2d 668 uu...ccccssccesscssssssensssssessssaneceees 214 Mullaney v. Wilbur (1975) 421 U.S. 684.0.csscsssnessescseeeesssssscenseessessecsssneees 59 Murray’s Lessee (1855) 59 U.S. (18 How.) 272 .....cccccccscssccssscssscceseeceseccesssseeees 363 Murray’s Lessee v. Hoboken Land and ImprovementCo.(1855) 59 U.S. (18 HOW.) 272 o...eeessescsesecsssecesnccesessscescenecsesscescesesceacsssenescesseseasscaeesesaeseesassesessnessnees 373 Murtishaw v. Woodford (9% Cir. 2001) 255 F.3d 926 .......sssscsecsssscsscacecsecssecssueene 264 N. MarianaIslands v. Bowie (9" Cir. 2001) 243 F.3d 1109.cccteeeeeee 127 Nance v. State (Ga. 2000) 526 S_E.2d 560.00...cssssssssssseseessessccsessesscsssesssesnees 204 Napue v.Illinois (1959) 360 U.S. 264.00... ccccssssesssssescesscessesscssssecssssessessscsseseses 166 Newlon v. Armantrout (8" Cir. 1989) 885 F.2d 1238.......csssccscccsccesccecseesssessseesees 267 Ohio Adult Parole Authority v. Woodward (1998) 523 U.S. 272.0...eee397 Osborne v. Ohio (1990) 495 U.S. 103 oo... cceeesesscesesccesssecessesacecsssscssescnsesessseseneees 59 Parker v. Dugger (1991) 498 U.S. 308 ou...eesssssessescessssecsescseseeseecsssssescsessenes 262 Parker v. Gladden (1966) 385 U.S. 363 .0.......:ccssssssessscssssssescsscesescesseeseeeesecsneseeas 264 Patton v. United States (1930) 281 U.S. 276.00... ececcecsesscsscessscessesssccsessesssenes 211 Paxton v. Ward (10 Cir. 1999) 199 F.3d 1197 ......ssesscsscsseccsscnecccesceesceeesees 167, 267 Payne v. Arkansas (1958) 356 US. 560 ou... cscssssssssscssssssscessssceececesscsescssesssssens 51 Payne v. Tennessee (1991) 501 U.S. 808.00...ecceeeseeseesseeessessceusseussessesssees 282 People . Kanawyer (2003) 113 Cal.App.4™ 1233 ....c..cssssssssscsssscsecsecseeseeesesseeeres81 People v Bacigalupo (1993) 6 Cal.4th 857 ...........ccceccsccessssssssssessersesesesseenessentens 343 People v. Abbaszadeh (2003) 106 Cal.App.4" 642.....c.ccccsecsscssssssessecstscsseseseneesees 173 People v. Adrian (1982) 135 CalApp.3d 335 ...........ccsssssscssccesseseessscesssseeseeseseees 316 People v. Alcala (1984) 36 Cal.3d 604.00...cccccssssssccessesescessescseessseeseesees 98, 119 People v. Allen (1986) 42 Cal.3d 1222 ou...eecccsssesssccesseesceeseseesetsneeerenens 356, 387 People v. Anderson (1968) 70 Cal.2d 15 oo...cccceecssssscccssesscessscstssssccsssccsscsscsesens 98 People v. Anderson (1972) 6 Cal.3d 628 ....0.......ccscssssscsssssssseccesseseessessesesseeseseesnes 302 People v. Anderson (1987) 43 Cal.3d 1104 oo... eceeesccssesscccssssscssscssssensscsscesees 338 People v. Anderson (2001) 25 Cal4th 543 ooo...ccecccssssnesseeseeseenseesscseees 318, 356 xix People v. Aranda (1938) 12 Cal.2d 307 ..........ce esssssssecescessseescesssecesssecssscesceesees 113 People v. Aranda (1965) 63 Cal.2d 518 v.ccecscsssssssssssssssssssssessseesseesssessssssetesssesseesses 35 People v. Arias (1996) 13 Cal.492 voviccecssessssssesssssseecesssessessstsssessseesseesssen 37, 384 People v. Ashmus (1991) 54 Cal.3d 932 ....ecscssssssseeeeoes susscsucesuecssucesucessecseuecesecenee 256 People v. Ayala (2000) 23 Cal.4™ 225 vuccecsssssssssssssssssessesssesssssessssessessseesssssseesnen 206 People v. Bacigalupo (1993) 6 Cal.4th 457.000...ccc sscccssscssscesssseessceesccessteesseesees 331 People v. Barnett (1998) 17 Cal.4™ 1104 vvcescsssssssccssssscssssecssscsececseeseseceseneeeees 208 People v. Barton (1995) 12 Cal.4186 v..csccssccscsssssssssessesssesssessseesscosesssecsssssnsceneres 57 People v. Bell (1989) 49 Cal.3d 502 w..cccccsssssssssssssessscsssesssusssssssssssssessssssneenseeensee 127 People v. Bemore (2000) 22 Cal.4™ 809 vo.cccecscsscssssssssssesssssssssscssesssssstesseesseeeeee 206 People v. Bender (1945) 27 Cal.2d 164 ..ccsssssssscssesssssssssssssssssssssssseasssssesesusecseeens 130 People v. Benson (1990) 52 Cal.3d 754 v.cceccssssssssssssscsssseesstessssssssssessssssessstessesenee 316 People v. Berry (1976) 18 Cal.3d 509 ....ccsccssscssscssssssesssssssscsssssssuessseessesssueensessseeses 65 People v. Birks (1998) 19 Cal.4™ 108 v.ceccsecssssssssssesscssssssessesssscssesecessesecssvecsseaee 64 People v. Birreuta (1984) 162 Cal.App.3d 454 ....cccscesccessssssssssssssssstesseesssessssessuesses 67 People v. Bittaker (1989) 48 Cal.3d 1046 c.ceccscccsscscssssssscscsssssessesssesseesseesseseen 346 People v. Blakeley (2000) 23 Cal.4™ 82......cceccccscssssssesseesssessscsssessssessssessusssussssessnees 59 People v. Bland (2002) 28 Cal.4313 voocescsscssssssssssssssesssssssssssesseessessusossessneeeseenee 70 People v. Bobo (1990) 229 Cal.App.3d 1417 ..ccesccescsscssssssssesssesssessesssssenseenes 81, 381 People v. Bolden (1990) 217 Cal.App.3d 1591 ...ccccsscsessescssessssssssesssesssessseessseeses 126 People v. Bolton (1979) 23 Cal.3d 208 ....ecssscsssssssscsessseesssssssssssesssecsssesssesssesssseeses 173 People v. Bonillas (1989) 48 Cal.3d 757 .c.cccsscscsssesssssssssssssssssssessssessseesseessseesseeses 316 People v. Bonin (1988) 46 Cal.3d 659 w..ccccssccsscsssscssccssecsssssssssecssecsvecssesseesueesaeens 269 People v. Borchers (1958) 50 Cal.2d 321 uuu... seesccssssccsssssscesescetsecstessscesscesteeseeeas 65 People v. Boulerice (1992) 5 Cal.App.4™ 463........ccccssesssssssssescecsstessecescseecseeseeeee 211 People v. Boyd (1985) 38 Cal.3d 762 c..ccesscssssssscsssssssessstsssessecsssssssesseesseesescseseneseeess 64 People v. Boyde (1988) 46 Cal.3d 212......cccscccsscsssssssssescsssssesssssssusssssecsscssseesseeensens 37 People v. Boyette (2002) 29 Cal.4™ 318....ccccccsssssssssssssssssssssessssssssessessssessssessnsenees 182 People v. Bradford (1997) 14 Cal.4th 1005 ......sccsccsssssssssssssssssssescssecstecssessseesees 407 People v. Bradford (1997) 15 Cal.4th 1229 oo.eeceesescsesesceseessreesceeeresees 180 People v. Brady (1987) 190 Cal.App.3d 124 ..cccccsssscssssssssssessssssssssesssecssvessseesees 115 People v. Breaux (1991) 1 Cal.4th 281 vccc.sceccssssssssssesssesssesssssssssessstsssecsssessseesees 329 People v. Breverman (1998) 19 Cal.4142 vooceecsesssssssscssssssesssssssesssssseesseeseesuseensen 57 People v. Bridgehouse (1946) 47 Cal.2d 406.0000... ccceccssscssscssecesssssessesssseesees 63, 65 People v. Brooks (1986) 185 Cal.App.3d 687 ...sccssssssssssscsssssssssssesssseccsscesscensecsecenes 63 People v. Brophy (1954) 122 Cal.App.2d 638 ...cccssssssssssssssssstsssseessssessstessees 127, 149 People v. Brown (1988) 45 Cal.3d 1247 v.ccccccsssssecssssssssesssessssesssssssvecssesueesseeeress 128 People v. Brown (1989) 212 Cal.App.3d 1409 .o..cescsecsscssssssssssssssesscsseecnsssseeneeese 64 People v. Brubaker (1959) 53 Cal.2d 37 v..cccsscssssssscssssssssessecsstsssessssesssessssessescsnseess 59 People v. Bull (Ill. 1998) 705 N.E.2d 824 ..cceccesscsssssssscssssssssssecsesscssecseesessseeseeseese 391 People v. Burnick (1975) 14 Cal.3d 306 v.ccecceccssscscsssesssssessscscesesssecstesneeseesseessees 369 People v. Cain (1995) 10 Cal.4™ 1 veccecscsssscsscsssesssssssscssssesesscssussssstesuesanecneesueesees 242 People v. Carlson (1974) 37 Cal.App.3d 349 ....cccccsscsssssssessssssstsssssesssecssssnsessseesses 84 People v. Carpenter (1997) 15 Cal.4312 ...cccccessscsssssssssssesssssssssusssessucssesseessees 264 People v. Carpenter (1999) 21 Cal.4th 1016 .....ccccccsscsssessesssssssscsssesstssssessesssees 321 People v. Carrera (1989) 49 Cal.3d 291 v..sccecccsscssssstsesssesssesssssssesssssesseesneeens 104, 272 People v. Carter (2003) 30 Cal.4™ 1116 ......scssssssssssssssssssssssessesceeesseseeeseesseseneeeeets 268 People v. Carter (2003) 30 Cal.4™ 1166 v..cccesscsscsssessssscssssscssessccsssssccssessesseesseecnees 234 People v. Cash (2002) 28 Cal.4th 703 ..ccesscssessssssssssssssssesssessesssssssssesssssnssssseesseee 181 People v. Castillo (1997) 16 Cal.4™ 1009.......ccsssssssssssssssstesseessssssssesstssssssssesenees 126 People v. Castro (1994) 27 CalApp.4™ 578 ...cccsccsccsscsssesssssssesssessssseessescssesseesseees 313 People v. Champion (1995) 9 Cal.4879 o.oo. .ssssssscsssscssssescssssssssscesecusssersseeeseneees 161 People v. Chavez (1980) 26 Cal.3d 344 v...ccceccsscssessssssssssssessstesssecssssesssesssseseseeneee 150 People v. Claire (1992) 2 Cal.4™ 629 vvcccccssssssssssssssssssscsscscssescesessescessusesecssecseenees 128 People v. Clark (1993) 5 Cal.4° 950 wo..ccsscsssssssstssssssssssssessscessessesssseesssenseseees 302, 381 People v. Coffman (2004) 34 Cal.4™ Lovcicccssssssssssssscssssssssssssssscssecseescucecseessees 208 People v. Cole (2003) 33 Cal.4™ 1158 vccccssesssssscsssssscsssssssessnecssseesessntesseeseeenese 302 People v. Coleman (1969) 71 Cal.2d 1159...cccsssssssssccssssssscssecsseccssesesseccereaeessees 251 XXi People v. Collins (1976) 17 Cal.3d 687 oo...esesesccssseessseseesescsaceeseacetseessesenses 164 People v. Collins(2001) 26 Cal.4" 297 ...sccscscsssssssssssssssssssssssssssscssessessseesseneesees 210 People v. Cooper (1991) 53 Cal.3d 771 .cesssssssssssssssssssssessssessscsesenescseesescatseseeenses 264 People v. Costello (1943) 21 Cal.2d 760.....ccscscsssssssssessesssssesssssssssesstecseesseesssecssses 334 People v. Cotter (1992) 6 Cal.App.4™ 1671 v.cceesscssssssssssssssscssescsseceeeccessesessssesssees 412 People v. Cox (1991) 53 Cal.3d 618 v.sciescesccscceccssssssssessscsssecseecseeceesseesseeseees 199, 233 People v. Cox (2003) 30 Cal.4 916 ...cscsescsscsssssssssssesssessssssssscssseecseesseesseeeesnesseees 313 People v. Crandell (1988) 46 Cal.3d 833 v..ccccsccscsscscssssssssssccssessssserecesscecesessueesseen 115 People v. Crittenden (1994) 9 Cal.4™ 83 vo..ccesscecsssssssesseccssesssteccesessesens 174, 180, 276 People v. Cummings (1993) 4 Cal.4th 1233 w..ccccceccssscssssssesseecsecceseeseeceeeesees 36, 103 People v. Cunningham (2001) 25 Cal.4® 926 .......csscsecssscssscesssessessessssssessesesneesees 180 People v. Daggett (1990) 225 Cal.App.3d 751 ..ccccscscsssssscsssscseesesecsesseessessecsssecsucsses 51 People v. Daniels (1991) 52 Cal.3d 815 ..ccsccessssssssssssessssccsseccsessssessessseesneeen 266, 268 People v. Davenport (1995) 11 Cal.4™ 1171 coccccscscssssssssscssescsscsssessesseressueesseerss 242 People v. Davis (1994) 7 Cal.4th 797 ..cccessescssssssssssssssssccssseccessseeseressessessecssssesasen 338 People v. Dewberry (1959) 51 Cal.2d 548 v.ccesccecccsssssscssssssecssseesesessessssersesssseessses 244 People v. Dillon (1983) 34 Cal.3d 44] ..cccccscsessssscssssssssecsessssscsveceessesssessecssseesaeens 302 People v. Duncan (1991) 53 Cal.3d 955..c.cccccssssssssssessssessssscssssesssscecseeseesen 317, 359 People v. Dyer (1988) 45 Cal.3d 26 v.cccsccssssssssssssssssssssesssesssssecsseecetsssecsssseesssesaes 345 People v. Earp (1999) 20 Cal. 4th 826 w..cceccccsssscsssssscssssesssecssecesuccsecesererecsretseseesees 233 People v. Easley (1983) 34 Cal.3d 858 ..oceccsessessssssssssssssssscesseescsecssessesecsesceeeseeenss 247 People v. Edelbacher (1989) 47 Cal.3d 983 v..scesscssssssssssssssssecscsessseecsesssecsesetesseesees 96 People v. Edgmon (1968) 267 Cal.App.2d 759.....c..sssssccsscscssscssecesscessessssessseestessees 66 People v. Edwards (1991) 54 Cal.3d 787 v.ccescccsscsssssssssseccsesssecsstecessseseseseeen 128, 274 Peoplev. Ellison (2003) 111 Cal.App.4™ 1360 ........ccccssssscscssscosscessssecoesseesssseseeens 172 People v. Engelman (2002) 28 Cal.4” 436 .occcsesscsscsssssssssccsscseeecacseessessacssessssecsees 163 People v. Espinoza (1992) 3 Cal.4" 806 ........c:sc:sscee-ee+esevssssssssnesesessecsenesenneesenees 127 People v. Estrada (1998) 63 Cal.App.4™ 1090 ...ce.scessccsssecsssssssecesecccseeseecseessssessees 213 People v. Evans (1994) 25 Cal.App.4™ 358 w...cesscsssscsscecsescssscecssessecssssssssecsssensesse 147 XXii People v. Fairbank (1997) 16 Cal.4th 1223 ..ccccssssscssssssccssssssssssssssssssessssssssssesesen 352 People v. Falsetta (1999) 21 Cal.4™ 903 .....ccessssssscssssecssscesssssecssesseccssessseessecenees 126 People v. Farnam (2002) 28 Cal.4th 107.......c.sscssssssccescssssecsssssesssssseesseeseees 355, 379 People v. Farnham (2002) 28 Cal.4™ 107 ..scecssccssssssssssseecesessucssecsssecsascssscssecsseceee 209 People v. Fauber (1992) 2 Cal.4™ 792... .cecccssesssessssssssssessecsssssecsesssecsessncesee 293, 376 People v. Feagley (1975) 14 Cal.3d 338 vcccccccssccssscssssecesscecssssssssesssesssecssecssecsseesse 369 People v. Fitzpatrick (1992) 2 Cal.App.4™ 1285 ......ccecsecssscesssscsessssssessessecsseceseses 131 People v. Flannel (1979) 25 Cal.3d 668 .....cceccsssssssssssescsescescsssecsesssessssesssecsseesesessees 58 People v. Frohner (1976) 65 Cal.App.3d 94 .....ccescsssescescoscssessssssssesssscssecssscssneeseee 52 People v. Fudge (1994) 7 Cal.4™ 1075 v..cc.cccssesssecsesssssesecssesssessssssecsssssseseccesessessee 126 People v. Garceau (1993) 6 Cal.4™ 140 .......ceccesccsscsssessessecsssessucssecssecsecssecesecsesens 208 People v. Geiger (1985) 35 Cal.3d 510 v.sccescecscsssseccssscscessssssecessesssssssecssesssseeseesesces 64 People v. Ghent (1987) 43 Cal.3d 739 v...ccsccsssssssssscssssscescssessessssessuessssessecssecesecesss 180 People v. Gilbert (1969) 1 Cal.3d 475 .c.cccccccccscssssecsssesseesssssssesssessecsssecssecsssees 61, 111 People v. Glenn (1991) 229 Cal.App.3d 1461 o...c..ceesccsscesssssssesseesssesssecsssecsseceses 335 People v. Gonzalez (1990) 51 Cal.3d 1179 ....ceccsscscsscessesssesssecsesssscssecssecesecsecees 251 People v. Graham (1969) 71 Cal.2d 303 ...cccecssssssssssssccesseecssssssaesssecsucssscsssscsseenes 104 People v. Grant (2003) 113 Cal.App.4™ 579 ....ccccscsssssessscssscssessssssessssssessscsseeseen 37 People v. Green (1980) 27 Cal.3d 1 cesceecsecssccsssssscssscssecsessseceessseesecssesssessecssscsseesees 337 People v. Griffin (2004) 33 Cal.4™ 536 ...ccscscsscccsccsessecsssssecssscseccssecseessecess 242, 360 People v. Guiton (1993) 4 Cal.4th 1116 ..c..c.ccccccsescsssscsessceecsecssssssssessscssscssscsscssses 325 People v. Gurule (2002) 28 Cal.4™ 557 v.cceccsscssscsssssssssssssssssessssececsesesseessacsssseesasess 322 People v. Gutierrez (2002) 28 Cal.4™ 1083 .....sescccssssscsessesssesssecssssssessessecsscsseesecess 63 People v. Gutierrez (2003) 112 Cal.App.4™ 704 ......seccssssscssscessecsssessesssecsssececeees 101 People v. Hamilton (1963) 60 Cal.2d 105 ..c..c...ssscsescssecsseesseessossseesssscssccsseccssessses 301 People v. Hamilton (1989) 48 Cal.3d 1142 ...c.c.cccscccsscscscceccsesssessessssecssecsssessscssses 230 People v. Hansen (2000) 23 Cal.4™ 355 ....c.ccsssescsssssssssesssesecsssesasssssssssssessssesseesees 407 People v. Hardy (1992) 2 Cal.4™ 86 ...cccccssssscsssssssssssssssesecsssessssasessuvscssuccssssecssseessses 38 People v. Harris (1984) 36 Cal.3d 36 .c...cessecsssssscscsececsesssessucessscssessssectecesessesecesee 282 XXlil People v. Haskett (1982) 30 Cal.3d 841 oo...cccsssssssesesssssssssstsssessscssersesseceaceess 292 People v. Hawkins (1995) 10 Cal. 4th 920... cccsccsssscsscsccesssessssecssecsssssseesscesseess 233 People v. Hawthorne (1992) 4 Cal.47 43 wooo eccccecssescescssssssecssccsssssesscsseeseeses 268, 355 People v. Heard (2003) 31 Cal.4™ 946 wo..ccssscssesssssecsssecsesssesssssecsssccsssssssscssscesecess 180 People v. Hernandez (2003) 30 Cal4th 835....c..cccscccscsescescsssssssessssssccsesseceseesesens 357 People v. Hill (1992) 3 Cal.4th 959 ....ccccccssscssssscsscssccssecusssaeessssssesssecssecsesesesesesees 180 People v. Hill (1998) 17 Cal.4™ 800 ........cscscssscssoccsssossssucssssssssscsssssessseccssssceseccsuee 127 People v. Hillhouse (2002) 27 Cal.4™ 469 u..c..eeccsesssscesccscssssssecssessssecsscssesssecsesees 194 People v. Hines (1997) 15 Cal.4™ 997 ou.....sescesccssssssssesssecsssessessssecesessssssccosececenes 313 People v. Hitchings (1997) 59 Cal.App.4@ 915.....ccccccccssssssesssessecssscsssscsesecssesseens 381 People v. Holt (1997) 15 Cal.4 619 v.cceccssccsssssscssscssecesesscssesesesssssectsessecsssen 199, 323 People v. Hoskins (1978 Mich. Sup. Ct.) 267 N.W.2d 417 c.cccccscscsssccsseccsesssecesscon 64 People v. Iniguez (1994) 7 Cal.4™ 847 oo..sccscescessssscsssseesssssssssesssessssssecsusceseseseecesee 64 People v. James (1976) 56 Cal.App.3d 876....c.cccccscsscessesessesssssssesssscsssesessesesessssece 96 People v. Jeffers (1996) 41 Cal.App.4™ 917 oou...cccsscsssessecsscssecssesssecsssssessecsssessesee 126 People v. Jennings (1991) 53 Cal.3d 334 w...ccesccscccssssscscesecsecsssessssesssscssssessssssesssees 325 People v. Jiminez (1950) 95 CalApp.2d 840......ccccccscsscecessssssssescsssccsesssecsscsecs 98 People v. Johnson (1988) 47 Cal.3d 576 ......ccccccccessecsccssssesesessssescssscsssssscescescees 37 People v. Johnson (1992) 3 Cal.4 1183 .o...cesccsscssscccssccecsssessssesssecesseceseecssessecssses 145 People v. Johnson (1993) 6 Cal.41 .cceeccesscessssssssescsecsseccsuecssescssesssvecssecssssesscesses 134 People v. Jones (2003) 30 Cal.4 1084 ..c..sccecsscecssssccssceessetessecssecessacssssesecesseessees 233 People v. Kane (1946) 27 Cal.2d 693.....cccccssssscssssssscssecesecsesssesssecssessanessesssseseceses 318 People v. Kasim (1997) 56 Cal.App.4™ 1360........cccscccscesssssssesssscsssecseccsesssessseesees 167 People v. Kaurish (1990) 52 Cal.3d 648 w.ccc.ccecssscccsssecssssessecssucsssecsssesecssesssecsses 192 People v. Keenan (1988) 46 Cal.3d 478 .cccccssssscsssssssssecccscssssssssssssssssssesseeseesseeeses37 People v. Kelley (1980) 113 Cal.App.3d 1005 ........ccccceccsescssecssecssssesssecssecesereseee 334 People v. Kirkpatrick (1994) 7 Cal.4988.000... cscccccesssssssscssccsecsssecsssssseessessessece 224 People v. Kraft (2000) 23 Cal.4978..u..cceccssssssssssssssoseceesseesssecsssessssecssscssesessecseees 289 People v. Kwolek (1995) 40 Cal.App.4™ 1521 .....cccccssssecssecsssssssssssecsecsssesssscseeeee: 412 XXiV People v. Lanphear (1980) 26 Cal.3d 814 o..cccccscscsscsscscecsecsssssscscecssseseeeaes 199 People v. Lara (2001) 86 Cal.App.4"? 139 ....ccccsccsssssssscesecessseesssecssesssecsseesecceses 105 People v. Lee (1999) 20 Cal.447 ooo.cccessesssccsescescnssssecssecssessessssccssssscssecseseusesscene 58 People v. Levitt (1984) 156 Cal.App.3d 500.......ccccsscsssescessssessessssesssecssssssecsecssees 70 People v. Lewis (2001) 25 Cal.4610 w..ccescsesssssssssscccsscsccucesssessscssssecsssecsucsssecasescese 58 People v. Livaditis (1992) 2 Cal.4™ 759 ....cccccssssssecsscessseesssessessssecsseessessees 145, 238 People v. Logan (1917) 175 Cal. 45 ...cccccsccssscssssssssssssssseecsssceecatessssssusesscssecsusessseese 63 People v. Lucas (1995) 12 Cal.4415 ciuccccccssssssssscscccsessssssseesscsssscsseccsssssessecsssess 208 People v. Lucero (1988) 203 Cal.App.3d 101 Loctcescscssesceseccscssesscosssesseces 103 People v. Lucero (1988) 44 Cal.3d 1006 ....c..cccccccsssssssssecsesssecsucsssscssscssecssecsscessees 128 People v. Malone (1988) 47 Cal.3d 1 ec.escessessssssssssceesccssscsesssessecsssecssecsssssseeseccssees 126 People v. Marks (1988) 45 Cal.3d 1335 ....ccccccssssssssssssssscesssuessessseecsussssecsssssecssseeens 57 People v. Marlow (1995) 48 Cal.App.4™ 740 ....cccccsccsesssessseccscssessssssssesecsesesecssees 312 People v. Marshall (1990) 50 Cal.3d 907 ...cescsssssssssssssscsseccsesseesssecssecsseesseessecsssees 104 People v. Marshall (1996) 13 Cal.4™ 799 ou.o.ccsescsssssssecscessseessecssssessscessecsseeesssee: 107 People v. Martin (1986) 42 Cal.3d 437 ..cccccecccsssssssssesssesssessseessessstessecssesssessessseees 376 People v. Massie (1967) 66 Cal.2d 899.....cccccsssssssssscsssesscesseessecsesssesessesacesecssseesses 38 People v. Mata (1955) 133 CalApp.2d 18 .u.....sccsssccssesccsscsssssesssessssecssecssssssessseen 334 People v. Maury (2003) 30 Cal.4342 oooo.ciecctsccsssesssssescesesssessecstesseeeseeseesesseesseees 242 People v. Mayfield (1997) 14 Cal.4" 668 .o.ccsecccsscsssssesssscsssecescesesssesseeeseesseesssees 134 People v. Mayo (1961) 194 Cal.App.2d 527 .vcsccssssscsssescsscssseceecstssssesseeeseesseessesen 319 People v. McCoy (2001) 24 Cab.4 1111 c.ccccccscccscsssesssesscccssesssessessseesseseessssesaes 83 People v. Medina (1995) 11 Cal.4th 694 .0......cccccsssscsssescssessseseecssesseesssteseceseesssees 365 People v. Melton (1988) 44 Cal.3d 713 .cccccsccccssssssssscssescssecsesssesseessneessessatsssesseees 238 People v. Memro (1995) 11 Cal.4™ 786 ...ccccccsssssssssssssseccsecsececeecetecsecssusssacssscsseeess 181 People v. Mendoza (2000) 24 Cal.4130 ...cccccesssssscsssssesssssscscssesssssscssessessesseceees 37 People v. Michaels (2002) 28 Cal.4th 486 ....cceccccsssccsssscssscsseccecsesssosesseesseeseccaseess 325 People v. Mickey (1991) 54 Cal.3d 612 .....cccccscscssscsssssssssssssseseesssessesssvessecsessseeeases 64 People v. Millwee (1998) 18 Cal.4297.0.....cessssssesccsecceccsesseesussssessecssecsecsscencense 208 People v. Milner (1988) 45 Cal.3d 227 ooo.ceecesssessessseseeesscsesesenseteteetseeeeseees 330 People v. Mincey (1992) 2 Cal.4th 408 ....cccccccscscssesssssssscssscssesssesseesscssessnsensens 180 People v. Miranda (1987) 44 Cal.3d 57 ..cccccsssssssssssssssssssssscesscssscsssessnsessseesseeseeensee 96 People v. Montiel (1993) 5 Cal.4877 w..cescssscssssssssssssessessssssesstessessssseresseeseeensenes 126 People v. Moore (1954) 43 Cal.2d 517 c.ccesccsssssssstsssssssssssssssssesssesseessesssssesseesseenes 320 People v. Morales (1989) 48 Cal.3d 527 oo...eesccssstecsececssssssesssesssesseeseesseessees 344 People v. Morris (1991) 53 Cal.3d 185 v..cecccssssssssssscsssssssssssssscsssesssessseessseesseessecees 206 People v. Musslewhite (1998) 17 Cal.4™ 1216... eeccsscssscscssescessssececsseecsessatecseeseess 293 People v. Navarro (1972) 7 Cal.3d 248 v..cecccsscssssscssssssssssesssssssesuscctscecsseeccesceenseees 301 People v. Nguyen (1988) 204 Cal.App.3d 181 oo.escssessecesssseessesssessscsnsees 128 People v. Nguyen (1995) 40 Cal.App.4® 28 v.ciecseecsessssssscssecsescssscssececscosecsueeseesese 127 People v. Nicolaus (1991) 54 Cal.3d 55] ..cccccsessssssssscsssessessstsssessseesseesaeeenes 317, 346 © People v. Noguera (1992) 4 Cal.4® 59 oooccecsscsssssssssssecsecessteceesescsecsesseessessteseesecs 293 People v. Ochoa (2001) 26 Cal.4th 398 ..cccccscscsssscsssessessecssessssesseessesesseecneenees 180 People v. Olivas (1976) 17 Cal.3d 236....ccccsscssscssssssssssssssssssesssessasecseesseecrecseueeaees 385 People v. Orabuena (1976) 56 Cal.App.3d 540.0000... eccssccssessessesccssessssessenseees 113 People v. Padayao (1994) 24 Cal.App.4™ 1610.......0....... Lssessesssussacsssssecssessnenneens 312 People v. Padilla (2002) 103 Cal.App.4" 675 ...c.scssssssscsscsscscsecessssecsesssecsecsucsaeeees 84 People v. Peak (1944) 66 Cal.App.2d 894 vcccescscssssecscssssssssucccseecesessecceterstesceeceess 332 People v. Pensinger (1991) 52 Cal.3d 1210 oo...eesssseessrsesssseseecesseeesseseeseees 132 People v. Perez (1962.) 58 Cal.2d 229 v.ccescssssesssssssssssssssscsscseecsseceterseesseesseseceesaes 127 People v. Pinholster (1992) 1 Cal.4™ 865 ...cccccsscssessssssssccesssscesseccueseesececussassaeseeeees 35 People v. Pollock (2004) 32 Cal.4th 1153 ....ccccccsssssssssssscsssssssesssssssecstesseesereseeee 293 People v. Pope (1979) 23 Cal.3d 412 vcccscsccsssssssssessssessescessesecessereseesseessessaeeaees 207 People v. Powell (1967) 67 Cal.2d 32 ...sccccsesssssssssssssssecsecsccstscstecsecssecaeesseseressases 274 People v. Prieto (2003) 30 Cal.4™ 226 v.cesccscsesssessssssssescessseseessesseeceesasesnessers 161, 356 People v. Ratliff (1986) 41 Cal.3d 675 ...ccccsscccsssssssssssssssseccecescecscescacesessasesasssecsecsees 59 People v. Renteria (1964) 61 Cal.2d 497 o..ccecccsssssssssssssssssssesssesssescesesasecsecereesasenees 64 People v. Rice (1976) 59 Cal.App.3d 998 ..c.cccescssssssscssssssscssescesecsesssccssecsecessucsacens 334 XXVi People v. Riel (2000) 22 Cal.4™ 1153 ...ccccsscsssssssecssseccsssecssesssseessecssseessuessssessssessss 241 People v. Rincon-Pineda (1975) 14 Cal.3d 864 oo...ccssccccesceessnssecssscsesseeees 266 People v. Rios (2000) 23 Cal.4 450......ccccsescssssssssssscscecessssscuscecceecessecsacseussecceeezeees 59 People v. Risenhoover (1968) 70 Cal.2d 39...cscsssesscessecssseesseessessssesseeeens 199 People v. Rivera (1984) 157 Cal-App.3d 736 ..cc.sssessssssssssessssescsesssscscseccuseecseseseeees 83 People v. Robertson (1982) 33 Cal.3d 21 cccccescccscesssssssssssssssssessssecsseceresseescutscnseees 249 People v. Roder (1983) 33 Cal.3d 491 ..cccceeccsscssscssssssssssessssssssssssssssseessueecscecseenes 129 People v. Rodriguez (1986) 42 Cal.3d 730 ..cccccsscssssssssssscsssesssssssssssscusesseecsecessveeee 388 People v. Roybal (1998) 19 Cal.4™ 481 wo.cecccecccscssssscsssescsssscssecescstsccescseeecatesesecees 279 People v. Rupe (1988) 206 Cal.App.3d 1537 ..cccscceccssssssssssecsescssssssecesecsseeneeessecees 382 People v. Saille (1991) 54 Cal.3d 1103 c..ccecccscssssscssscssssecssecceccesessescceesseesstesetesees 134 People v. Salas (1976) 58 Cal.App.3d 460.000... .cccsssscssessccsssestecseesescersesesaces 244 People v. Samayoa (1997) 15 Cal.4th 795 ooo... csccssesseseessesesessstecssscsessenssees 397 People v. Sanchez (1864) 24 Cal. 1 7.cccccesssssscsssscssssssscssssssesscssesssssesseersecesatecavesees 130 People v. Sanchez (1995) 12 Cal.4™ Lioceccsscsssssssssscescceecsesstssecesessrssessseseneesees 153 People v. Sanchez (2001) 26 Cal.4™ 834 ...ccccscscsssssssssssesssscesessesscsseesseseseseseverees 15] People v. Sandoval (1992) 4 Cal.4™ 155 ...ceccesssscssccssscescseeccessessacscessasssuessessssessces 267 People v. Sapp (2003) 31 Cal.4th 240 ..c.ccccsccscsssssssssssscsscsssecessessecscesseesseseseeenee 337 People v. Saunders (1995) 11 Cal.4™ 475 voccecccccsssssssssssssesssesceesscecsecerccesecesensecees 268 People v. Scott (1944) 24 Cal.2d 774 ...cccccsccsscssssssssssssssssecseesesssssesesssssesseesseeentense 37 People v. Scott (1994) 9 Cal.4™ 331 oecceccsssecssssssesssssssseesssessuessusssuessseeseesnees 215, 413 People v. Scott (1996) 14 Cal.4 544... vccccsccsssscssssesscsssscssessssetessssseeseeessessnesess 114 People v. Sears (1970) 2 Cal.3d 180 ...cescscsescsssssessssssssesssessssessssssuessesseecnseesseessen 316 People v. Smith (1907) 151 Cal. 619 .....esessssssssssesssssssssssssssssenssssssssseesseersttee 63 People v. Smith (1973) 33 Cal.App.3d SLe..cescescsccsssscsssssssesssecsscsseececerecessessseeeees 113 People v. Smith (2003) 30 Cal.4th 581 v..ccccccscccssssscssscsssscccsececcsssessesseeecsees 293, 316 People v. Smithey (1999) 20 Cal.4® 936.......sescsssssssscssssssecseccceecssecseesetessueesecsseee 161 People v. Snow(2003) 30 Cal.4th 43 ..cccccsccsssssssssssssssessssusssssssssssssessssssssessesesscee 356 People v. Son (2000) 79 Cal.App.4® D240. iecesccccesssnecscccesensseceseeeessecesscensccssuees 381 XXVIi People v. Spurlin (1984) 156 CalApp.3d 119 ooo.ccsessscesecessensceseseneneees 54 People v. St. Martin (1970) 1 Cal.3d 524 ...ccccccscssssssssssssesssessssssssessssessseessesesssenees 125 People v. Stanley (1995) 10 Cal.4th 764 v..ctccccccscssssesseeseeeesstessasessessesssseaseesses 344 People v. Steger (1976) 16 Cal.3d 39 ..c.cccccsscsssssssssssssessstsssesssssnssssecscessavesseeceeesees 130 People v. Stewart (1983) 145 Cal.App.3d 967 ..cccsscsssssssssssessssssesssssssssessscsseesesesee 247 People v. Stewart (2004) 33 Cal.4™ 425 vocccccccssscssssssssessssscsessseessesssteseesseseseeseee 180 People v. Superior Court (Romero) (1996) 13 Cal.4497 ooo ecesccsescesesssesesesees 244 People v. Superior Court (Zamudio) (2000) 23 Cal.4™ 183 ......cssessessecesceeseseeeees 61 People v. Surplice (1962) 203 Cal.App.2d 784 ....sscessssssssssssesssescssssesseececcseeceeres 181 People v. Sutic (1953) 41 Cal.2d 483 vvccceccscssscsssssesssssesssecsssescsssessseesesssereseceeess 113 People v. Talle (1952) 111 Cal.App.2d 650 ..c...c.ccscssssssessssecseccssecsescnteseessesseereee 127 People v. Tapia (1994) 25 Cal.App.4™ 984 vu..ccecscsssssssssssesssessstsssssecsssereeeereesasen 105 People v. Taylor (1961) 197 Cal.App.2d 372 v.ccescssscssssssscsssssscseessssersecseecceesnesaees 130 People v. Taylor (1990) 52 Cal.3d 719 vcccssccsssscsssessesssscsssesscesseessessavereeseees 363, 367 People v. Terry (1964) 61 Cal.2d 137 v.sceecsescssessssssssssssssssseecssesseessstsesecesuceesuceneres 233 People v. Thomas (1977) 19 Cal .3d 630 ..cccccsssssssssscsssssssssssseersserssesssccssessteseeseees 369 People v. Thompkins (1987) 195 Cal.App.3d 244.......scesscsssssssescsecceeseeesees 131, 319 People v. Tufunga (2001) 21 Cal.4™ 935 voccceccccssscssssscsssssssssseesssecsessecssceseceecenees 75 People v. Turner (1984) 37 Cal.3d 302 .....ccsccsescssscccesccececcsscsuessucssssecsscsstecsssesecssses 35 People v. Turner (1990) 50 Cal.3d 708 .o.cccecccssscssscssessssssssssesseessecsseecsseseessseeaeen 106 People v. Valdez (2004) 32 Cal.4% 73 ...c.scesscsssssssssssssssssscsessscecesesscesatereeseesesaeseeses 104 People v. Valentine (1946) 28 Cal.2d 12] woeccesccssesesesscesssssscsssscesesseseves 63 People v. Van Ronk (1985) 171 Cal.App.3d 818 ....cccsccsssssscssscesecsesecseeccssecssceseecsees 57 People v. Varona (1983) 143 Cal.App.3d 566 w..ccecssccscssssssssesssecssesecssceseesssees 52, 167 People v. Velasquez (1980) 26 Cal.3d 425 ..ccscessseccsscscssseccescecscussssessessseessecssesees 199 People v. Venegas (1998) 18 Cal.447 oooccccsssscssssssecsseccccsessstecsucssecsesesaeeneeses 106 People v. Vera (1997) 15 Cal.4™ 269 ou... cccssssccsecsnssssssesssssssssucsecsssscsecsusssscssseeece 150 People v. Viramontes (2001) 93 Cal.App.4™ 1256 .....cccccscccsessesssessecsecsesseessesesseens 64 People v. Vogel (1956) 46 Cal.2d 798 ....cceccscssssssssscsssssscsssssescesssceessescaesaeessuceueseen 70 XXVili People v. Wagner (1975) 13 Cal.3d 612 oveeseeceececescsssesssceescesecsseeenseens 173 People v. Walker (1988) 47 Cal.3d 605 v..cccessssssssssssssssscessssstssssscssesssessetssuseseesesen 346 People v. Warner (1978) 20 Cal.3d 678 v.ccesssesssssssssssesssesssesescsesssecssesseesesseceneeneees 181 People v. Warren (1988) 45 Cal.3d 471 vucceeccsssssssssssssssesssssessssssesscesessenseseessecseees 129 People v. Watson (1899) 125 Cal. 342 ....ccssscsssssssssssssssssssssscessesssssssscesuecseasecaseen 244 People v. Watts (1976) 59 Cal.App.3d 80 ..ccccccccscecsscssssssssssesssecesssesssessecsseenseceees 106 People v. Weaver (2001) 26 Cal.4™ 876....cc.cccssssssssssssssssesssessseesutesseeesseeasees 181, 302 People v. Webb (1956) 143 Cal.App.2d 402.....ceccsscsscsscssssesseesssecsseesessnsereeeaeeen 132 People v. Webster (1991) 54 Cal.3d 41 Licccccscesscessssssssssescssecstecsesssaceseccstecneeseees 210 People v. Welch (1993) 5 Cal.4™ 228... .cccessescssessssssscsssssessesssecsesssesssessessecsecseeeese 182 People v. Wharton (1991) 53 Cal.3d 522 ..c..cesssssscssssssssssccseesssecesccsessessecseseateaeessees 65 People v. Wheeler (1978) 22 Cal.3d 258 .ccccccsscsssssssssssssessesssesssecsssecenseseseseeseceen 179 People v. Wickersham (1982) 32 Cal.3d 307 ...scsssccssssssssssssescsscsesseseceseeseteceesecsesees 57 People v. Williams (1988) 199 Cal.App.3d 469 w..cccccsessessescssscssecseseceessesseeessees 57 People v. Wilson (1967) 66 Cal.2d 749 v.sceessssscssscssssssssssecsssssesceeecsaeeseesseecaeesessssess 59 People v. Wilson (Ill. App. Ct. 1987) 515 N.E.2d 812 o...cccescescesscssseceessesseessessssees 42 People v. Wims (1995) 10 Cal.4® 293 ov.ecssssessseccsssceccsscaseccessesssucsstssessucsucsaceans 272 People v. Woods (1993) 12 Cal.App.4™ 1139 ....ccccccscccesceccessecsecsessecseesecsessecsses 382 People v. Yeoman (2003) 31 Cal.493 ou.sscescsscesssessessessessessecssacsesecsssesencsees 161 People v. Yrigoyen (1955) 45 Cal.2d 46 ...cceccccsscssssssssssssscsssssssssssssseeseresseeseeseeen 266 People v. Zapien (1993) 4 Cal.4929oooccessceecsssccscecsecssessssscesstssesscsaceneaneenes 192 People v. Zemavasky (1942) 20 Cal.2d 56...........cccccsssssscsssscssssssssscsssscsessseeseeees 150 People v. Zito (1992) 8 Cal.App.4"? 736 ...c.ccssssssssssessssescescesssecsesscssssessessecseeseeesuss 407 Perez v. Marshall (9th Cir. 1997) 119 F.3d 1422...cscssssscssscessscecssecsetesueseceeses 165 Phillips v. Queen (1968) 2 A.C. 130 o.cccsscssssssssssssessessssccoscececveceecsusssacseessessesseenseess 78 Plyler v. Doe (1982) 457 U.S. 202 v.ccccsccsssssssssssssssessssscsssssessecsecatessecsaessessscsesaneense 336 Presnell v. Georgia (1978) 439 U.S. U4.cesccesssssssssssescssssssessucccucccescsscsatssecssecsecssane 368 Proffitt v. Florida (1976) 428 U.S. 242 vo.ccccccscsscsssscssscsesseeseessesesessessasesessucssessecess 374 Pulley v. Harris (1984) 465 U.S. 37 c.cceccesssssssssscssscecccseecccessessasssecssucsaesscsaee 302, 344 XXiX Ramirez v. Castro (9™ Cir. 2004) 365 F.3d 755 ..ssccssssssssssssssssesssssssssssesseesssseesseee 302 Rayv. State (Fla. Sup, Ct. 2000) 755 S0.2d 604.00...eeccsseseeseeessessecsssseeeesens 312 Regina v. Davies (1975) Q.B. 691.0...eecssscsscssssssssssesesssnscesseessesssesssesecensseesseenee 70 Regina v. Mawegridge (Q.B. 1707) 84 Eng. Rep. 1107 oo...cece ccsesssseseesseeeeenes 69 Regina v. Welsh (1868) 11 Cox Crim. C. 336 occcccscsscesscesssessesesensscesseecsenses 69 Reid v. Covert (1957) 354 U.S. 1 occeeecssessssesteeseesscensssneesessssssseessseeeeseeseeeeses 389 Richardson v. United States (1999) 526 U.S. 813.0...ccceessseesesssssescsesscseeees 365 Ring v. Arizona (2002) 536 U.S. 584...ccsccssesesssssessccsscsssessssncensectesseseeeeeeees 44 Rogers v. McMullen (11% Cir. 1982) 673 F.2d 1185 ...c..scscsssssssscssscssessesesceeeeeeeene 211 Rose v. Clark (1986) 478 U.S. 570 weecsssscesccsscereesscessssessssessesseecseeesseeseesesceees 165 Ross v. Oklahoma (1988) 487 U.S. 81 ooo...ceeeccseessesssssesssecseesncesseassesseseeseensees 208 Rufo v. Simpson (2001) 86 Cal.App.4” S73 ..cescssseresscsssssscessseesateesseeessesasenseeesees 287 Rupe v. Wood (9" Cir. 1996) 93 F.3d 1434.0...cccscsscssssscesssescesseeeceeseeesntecseteesen 237 Sabariego v. Maverick (1888) 124 U.S. 261 oo... ecccsscssscssesseessecsreesteeesseeees 394 Sanders v. Woodford (9" Cir. 2004) 373 F.3d 1054 ....c.ccsscsscsceceeceseseceeees 280, 296 Sandoval v. Bank ofAmerica (2002) 94 Cal.App.4® 1378 oo. eeeseceseceesseseeeceeeees 247 Sandoval v. Calderon (9" Cir. 2001) 241 F.3d 765 oo...eesscecsscsscsesseseeseees 267 Santosky v. Kramer (1982) 455 U.S. 743 o.ecessssssccssessesscsscesssesseesseessesesseeseneess 369 Sattazahn v. Pennsulvania (2003) 537 U.S. 10] woeeeecseceecsesccesesssessssceenesees 44 Saunders v. Woodford (9" Cir. 2004) 373 F.3d 1054 .....cccescscescssseseesecsessseeseesees 298 Shannon v. United States (1994) 512 U.S. 573 ......cccccccseccssesessseesssseesssssseeeenees 127 Shufflin v. People (1875 N.Y.) 62 N.Y. 229...ccccescsscsssssscsssecssesseecasensesessseessens 80 Silva v. Woodford (9° Cir. 2002) 279 F.3d 825 v.ccescsessssscsssssssscsssscseessesstecreseeeeens 236 Simmonsv. South Carolina (1994) 512 U.S. 154 occcccccescscscsccsesssesseeseeees 237 Simpson v. United States (D.C. App. Ct. 1993) 632 A.2d 374.......ccccscesssseseeeeeee 73 Skinner v. Oklahoma (1942) 316 U.S. 535 wo.eecsscsessssssesssessceesesscssecsessssenesesens 386 Skipper v. South Carolina (1986) 476 US.Lo...eee cccsctscssscsccsssessssscesecsesseeesoes 192 Smith v. McCormick (9" Cir. 1990) 914 F.2d 1153 w..cccscssssssesceccseececcseeeseessaeeess 255 Smith v. Singletary (11 Cir. 1995) 61 F.3d 815 ......cccscssescessceccecsecseeeseeessesseesees 258 Smith v. Stewart (9 Cir. 1998) 140 F.3d 1263 .....cccssecsesssesssecsecssesssessaesseseateeseees 281 Smith v. Texas (Nov. 15,2004) U.S.___, 2004 US. Lexis 7668.............. 282 Sochor v. Florida (1992) 504U.S. 537 ...ccescsessessesssescesseesscseessenseeetssesseseessaeneees 296 Solem v. Helm (1983) 463 U.S. 277 .......cesssssesessececesceseesececeeseeessssesseeessenseneasens 302 Speiser v. Randall (1958) 357 U.S. 513oeescesssseeesessessesseesssssssessseeneeeseeens 368 Stanford v. Kentucky (1980) 492 U.S. 361 occeceesceeeceseseceeccectesesseeseeseeasenes 310 State v. Fowler (1978 Iowa Sup. Ct.) 268 N.W.2d 220, 224 ooo.ceeeteeseeeeeeee 80 State v. Gesch (Wisc. 1992) 482 N.W.2d 99.0... eesssessceseseeseresseseecseateeseeeeeaees 214 State v. Hightower (N.J. 1996) 680 A.2d 649 ooocececeetesceeesetseeeeeeneeaes 294 State v. Koskovich (N.J. 2001) 776 A.2d 144.0.eeeeeeesetceceeeeeeesesseeneeeetnereees 294 State v. Michael (W.Va. 1914) 82 S.E. 611 ooo.eesccenseeseesceeeseeseesenssenseeeanees 70 State v. Nesbit (Tenn. 1998) 978 S.W.2d 872.0...eeesesceeseceneessesssescsecesseeeeeeees 294 State v. Pierre (Utah 1977) 572 P.2d 1338 0...cesssssesescesseeceesseetecteeneneeeeeseeeaee 354 State v. Ring (AZ. 2003) 65 P.3d 915...eesesceseeeesseceesteeseeaeeessccsseseeaeeeneeeees 359 State v. Rizzo (Conn. 2003) 833 A.2d 363.0000...ecscssssssseeeesseseeseceneseecseeeeseseneeeess 372 State v. Russo (1910 Del.) 77 A. 743 uo... eecesceesesceesceeecescescescececeetsceessescsecesssensees 80 State v. Whitfield (Mo. 2003) 107 S.W.3d 253.00...ee eeesseseeseeesetseeetsccenteseeeaes 359 State v. Yanz(1901 Conn.) 50 A. 37 wo.ececcescsesescceseseccessescessceeeeseenessseesecesesenes 80 Stewart v. Dugger (11 Cir. 1989) 877 F.2d 851 ....ccsssssssessssssesssessssesssessessseeseeses 234 Strickland v. Washington (1984) 466 U.S. 668.0000...eeeecesceceeeceeeeneceeeeeeeeee 207 Stringer v. Black (1992) 503 U.S. 222 ooo.eeeeeeeeeseeeseeeeseeseescnsnsseeeeseseeseeseenses 296 Sullivan v. Louisiana (1993) 508 U.S. 275 oo.ecssseessceetsceseesseesessteesseseeseseeerees 59 Tanner v. United States (1987) 483 U.S. 107...eeeeecescneeccneeessecesssceeseseeenes 164 Tapia v. Superior Court (1991) 53 Cal.3d 282 oo...cece ccsesssecesseseeeseeeseeeeseeens 407 Tarver v. Hopper (11 Cir. 1999) 169 F.3d 710 ..cccscsscssssessssssesssscssessessstssstsseesees 234 Taylor v. Kentucky (1978) 436 U.S. 478 uu... eeecsssssceeeseeccnceeeeseceessccesseaceaceneeeses 128 Tejada v. Dubois (1% Cir. 1998) 142 F.3d 18...ccccccscssccsssesesssssssssessssessesseeeeeees 213 Tennard v. Dretke (2004) 542 U.S.124 S.Ct. 2562 oooceesseesetseeeeneens 234 Tennessee v. Teague (Tenn. 1995) 897 S.W.2d 248.0...eeccscecesssseeseeesneessneens 233 Thompson v. Oklahoma (1988) 487 U.S. 815.0...eeetenseteceeseesensceneeeeeseeeeees 309 Townsend v. Sain (1963) 372 U.S. 293......ccsscssssscsessceressessesseseceneesseeseesnssnsaeeeeses 375 Tripp v. State (1977 Md. App. Ct.) 374 A.2d 384 ......essssessseeeesenseeeneneessteneneneanes 80 Tuilaepa v. California (1994) 512 U.S. 967 «0... csseseseceeeseeteeeneeeeenenseesenssnennsnenens 324 Turner v. Murray (1986) 476 U.S. 28 wo.cesses tscccseeneeseseesensesenesetessessensnesesenes 389 Turner v. State (Ga. 1997) 486 S.E.2d 839 ...eecccessssesesesssesenessseseeenessceeseneeees 294 United States ex rel. Free v. Peters (1994) 806 F. Supp. 705.200...ecessseeeeeee 383 United States v. Agurs (1976) 472 U.S. 97 ..uccssssssssessesssesenteseseesesseesessessseneeeenes 166 United States v. Artus (9™ Cir. 1979) 591 F.2d 526 .....cssscscssssssssssseessescessessneeneees 127 United States v. Auerbach (8Cir. 1984) 745 F.2d 1157 ..cccccccssscssessessessessseseesses 42 United States v. Aulicino (2d Cir. 1995) 44 F.3d 1102...cececnteeeeeeeneenes 38 United States v. Bagley (1985) 473 U.S. 667.2...cscssseseseseseseeeeeeneeseseenteeeeees 173 United States v. Brady (9Cir. 1978) 579 F.2d 1121 ....esssessesssesssecctsenesneeentesnseseess 39 United States v. Brown (D.C. Cir. 1987) 823 Fd.2d 591eeessceseeceeeteeeeees 163 United States v. Cheely (9 Cir. 1994) 36 F.3d 1439 ..o.eesssssssescsssssssesessssneesessee 338 United States v. Crawford 6" Cir. 1978) 581 F.2d 489 ooeeseeceeeeceseeeeenes 40 United States v. Davis (E.D.LA 2001) 132 F.Supp.2d 455 wo...ccceeseseeeeeeeeees 233 United States v. Duarte-Acero(1 1® Cir. 2000) 208 F.3d 1282.....ccccccscesesseeceeeees 393 United States v. Ebens (6Cir. 1986) 800 F.2d 1422 .........cscsessecsseseseseesseesenteeeseseees 52 United States v. Eubanks (9Cir. 1979) 591 F.2d 513 .....cessescessecstecseeseeseeseeseeses 208 United States v. Gaudin (1995) 515 U.S. 506 0...eceseceseesesseeeesneeseseenseeeee 59 United States v. Gonzalez (9° Cir. 2000) 214 F.3d 1109 ou... ..seceessessereeessteeesses 208 United States v. Johnson (5™ Cir. 1973) 478 F.2d 1129 .......sssssscsesssessessssseesetseeeane 41 United States v. Kojayan (9® Cir. 1993) 8 F.3d 1315 wooeeecesssssesseseeesensenees 127 United States v. Lane (1986) 474 U.S. 438 oo...sssessssssssssssensesessseneeesneneeneesenees 37 United States v. LaPage (9™ Cir. 2001) 231 F.3d 488.......cseecssscseesssesstesstssseessess 149 United States v. Layton (9Cir. 1985) 767 F.2d 549 ......csesssscsecssessesssensssseessssess 127 United States v. Manning (1% Cir. 1994) 23 F.3d 570 ou... eseesesecessesessseseessseeneees 267 United States v. Marques (9th Cir. 1979) 600 F.2d 742.00...cece setceeseeeceteeeeeeeees 164 XXXil United States v. Martinez-Salazar (2000) 528 U.S. 304 occccccccceeesssseeeesees 209 United States v. Mayfield (9" Cir. 1999) 189 F.3d 895 v.occcccccssecsssssesssssessseesneeen 38 United States v. Mendoza cg Cir. 2001) 244 F.3d 1037.0...eee csesscsessssseseseees 272 United States v. Nelson (2d Cir. 2002) 277 F.3d 164 woo...sesesesssscsssssssceenes 214 United States v. Newcomb(6" Cir 1993) 6 F.3d 1129oeceeeeeeeceeesenene 127 United States v. Padilla-Mendoza (9" Cir. 1998) 157 F.3d 730 .c.ccccsscsscscsessesseese 195 United States v. Quintero-Barraza (9™ Cir. 1995) 78 F.3d 1344...208 United States v. Rodrigues (9 Cir. 1999) 170 F.3d 881 ..escessecccccesssecsessessesseceses 127 United States v. Romanello (5" Cir. 1984) 726 F.2d 173 ........cccesccccecescesessssesesees 39 United States v. Rose (1% Cir. 1997) 104 F.3d 1408 uo.csccccscsssesseecsececeeseeees 40 United States v. Rucker (11Cir. 1990) 915 F.2d 151]weecceeeeeeseeteee 39 United States v. Sampol (D.C. Cir. 1980) 636 F.2d 621 ou...eeeceeseeetseesceeeeee 42 United States v. Sayetsitty (9" Cir. 1997) 107 F.3d 1405.0...ecceessseseeees 62, 126 United States v. Sherlock (9 Cir. 1989) 962 F.2d 1349 o...cccccccscssscssesseessessecssecsees 40 United States v. Span (9thCir. 1996) 75 F.3d 1383.0...escccsesssesscsssesenescseens 269 United States v. Symington (9% Cir. 1999) 195 F.3d 1080...cececeeeeeeeee 164 United States v. Throckmorton (9th Cir. 1996) 87 F.3d 1069woeeeeeeeeee 40 United States v. Tootick (9 Cir. 1991) 952 F.2d 1078 veeeccsssssssssscsscsssseescssssseseess 38 United States v. Unruh (9th Cir. 1987) 855 F.2d 1363 0....cccsssssssesccseessesseseesees 62 United States v. Waggoner (9Cir. 2003) 339 F.3d 915 ....ccccesccscsscccessecssecstesseeseee 44 United States v. Ziperstein (7 Cir. 1979) 601 F.2d 281 .....eccccsssssscsssseesssseeceessees 37 Vasquezv. Hillery (1986) 474 U.S. 254 ..ccessssssscsssssssssssccssssssssssessesscarscessssseaes 210 Vicars v. Ricketts (9th Cir. 1986) 798 F.2d 369 oo...ccccccctecsstecessseesesesees 62 Vujosevic v. Rafferty (3d Cir. 1988) 844 F.2d 1023.0.cecsceecescesssesceeseeeee 60 Wade v. Calderon (9™ Cir. 1994) 29 F.3d 1312 ..c..ccccssccsssseccosssessessssecsecsucssesssesess 340 Wainwright v. Witt (1985) 469 U.S. 412oecccsessesessessssccsesessseseneessessssaces 180 Walton v. Arizona (1990) 497 U.S. 639.0... cccccccssssesessessessesssecesesseseseecssssecsaceees 353 Wardius v. Oregon (1973) 412 U.S. 470...eesescecsssssssssssesssesesenessssecsecessencecees 320 Washington v. Texas (1967) 388 U.S. 14 oo.cccsscccsscnssscsscseesssseescessenens 334 XXXiii Westbrook v. Milahy (1970) 2 Cal.3d 765.0...cesesscssscsscececeessstecseceecseeeeseeesees 385 Wiggins v. Smith (2003) 539 U.S. 510 oo.cecesscessesssecscsssssssesssessenseenseenes 259 Williams v. State (Fla. 1998) 707 S0.2d 683 ..........cccssssssessessessseseesesessessesesenseens 311 Williams v. State (Fla. Sup. Ct. 1998) 707 S0.2d 683.0....eeeeesescesccsseeseseseseeseesees 312 Williams v. Superior Court (1984) 36 Cal.3d 441 ooo.cccceecsccessssesseeeeseeees 37 Williams v. Taylor (2000) 529 U.S. 362.0...ceeccsssssccesssscesessesseeseeesseesseneeessens 259 Williams v. Woodford (9™ Cir. 2002) 306 F.3d 665 ......cccsssssssscsscsseccessccsseeceessees 234 Witherspoonv. Hlinois (1968) 391 U.S. 510 oo.eccceccsscsesssesscescssssseessscnsesens 179 Woldt v. People (Colo. 2003) 64 P.3d 256.00...ccecccssessssscsseesesecessesssesseeceeeees 359 Wolfe v. Brigano (6™ Cir. 2000) 232 F.3d 499 vou.e.ccecessescesssescsescesecesessacssesseeeseen 181 Woodsonv. North Carolina (1976) 428 U.S. 280 .oceccescocscsesecsecsssesssessecssecsssceseeeen 62 Yates v. Evatt (1991) 500 U.S. 391occcscessescesssessessessessecseceseseessseeseesers 107 Young v. Bowersox (8" Cir. 1998) 161 F.3d 1159eccesestteseteeeeseeee 279 Zafiro v. United States (1993) 506 U.S. 534.0...eccscsscessescessescesececsseesessecesnsenses 37 Zant v. Stephens (1983) 462 U.S. 862.000...ceecesssscesscesssssesesceescecesssecsenseenseeaes 251 Zemina v. Solem (D.S.D. 1977) 438 F.Supp. 455........ccccscsssscssscesccesssesssceecseseees 336 Statutes 18 Pa. C.S. § 2503 oo.eeesceecessesessecsccssssscesssscaeesssesssessssscsacescesseceseeessssesenseseeses 70 42 Pa. Cons.Stat. Ann., § 9711(C)(1)(iil)...secceccccesssesseescesseessssscenssasenssees 354 ALS. LEAL DUS(D)(2) eeeeeescesceecseceeesseseeseesessecescessssecssssssssceacesseessseessessesseeenens 74 Ala. Code, § 13A-5-45(€) ......ccccccssssssssscesceessesscssseesesssceensenssasenstestenseeesseassessenseenes 354 Ariz. Rev. Stat. Ann. § 13-703 oeeeeseesseccssceseccsccescccstscesssssensescessesseesnsesseaeeaes 354 Ark. Code Ann., § 5-4-603 ..0......eecscesesecssseeceseesseccensesacessesssenesessseassacenseessenseseeseens 354 C. R.S. 18-3-103eeeececscsessceecesssececsccsccssesecesseeseesscseessssnssrsssssseesseeeseeeeesanceseenes 74 CCRTitle 15, section 3177 .....c...ccccccelecsesccecssscseescsssscssaccsssecessscessssesscecensses 170, 278 Colo. Rev. Stat. Ann., § 16-11-104-1.3-1201(1)(d).....ceeeecccceccsceseeeteerseeenes 354 Conn. Gen. Stat. Ann. § 53a-46a(C) 0.0.0... cceccceessssccceceecssscesessssscssssccesassaneesesses 354 Del. Code Ann.tit. 11, § 4209(C)(B)a.1oecetessecessessessescsescesccessecessesseseeeaes 354 Evidence Code section 1150...........cccsscsscssssssesescessesstecssecssssssssesssessecesecesseseseseees 164 XXXIV Evidence Code section 1250...........c.cccccccsssccccssscccceccssscscsssencssceceeceescccseccsecceceseseese 287 Evidence Code section 1252..........ccecssssccssseeessssnsssssesseeseessecseesesseecentessesseeseeeenss 288 Evidence Code section 520..........sssscscscsessecessesessnssessesaeensessessseenssaeseesessesseessenees 373 Ga. Code Anm., §17-10-30(C) oo... eeessssesssssecscssesssacsscescecssaeesnecnesseseeessessenssecesseees 354 Government Code section 13967 ..0.......cceecsscssssssessceseesseseeeesssnaesteestessenseenesarsess 408 Idaho Code, § 19-2515(3)(b) (2003) .........eeessscsssessessessessessessesseeessecsssececeseseessaces 354 Ill. Ann.Stat. ch. 38, para. 9-1(f).........cccssecescesseessccssesessseseesssssccssscsssssesssenssereeeees 354 Ind. Code Ann., §§ 35-50-2-9(a), (€).......:ccsessscsssssesscessesscesscessessceessessesscsensscssease 354 Ky. Rev. Stat. Ann., § 532.025(3)oecececsccsscessessesscessesseesseesseenseseesseessessesseaeness 354 La.Code Crim. Proc. Ann. art. 905.3 .....cccsscessssssscssesseeseesssncececsesecessessssssecesences 354 Md.Ann. Codeart. 27, §§413(d), (£), (Q).....---sccsssssesssesessesseenceeeceesneescessesseessnsecns 354 Miss. Code Ann., § 99-19-103 (1993)...cscessessssscsssessssessssscescesesssesecsssscessseesees 354 N.J.S.A. 2C:11-3€(2)(a)... eeseseeesseecesceeceeceeceesceessecsesseesaeeseesaecssecseeaseessasacssusaceees 354 N.M.Stat. Arnn., § 31-20A-3 oo.escecessecescesceecesseesesseeeesessssaeeeesssesssseesesseesens 354 Neb. Rev.Stat., § 29-2520(4)(f)......csscsssesssccsecessessessessessesseeseeseesseseeseesanssensesessees 354 Nev. Rev.Stat. Arnn., § 175.554(3) wo... cccscssccssseseeesssccssecssecssscesssescessssssassacensees 354 Ohio Rev. Code, § 2929.04 ooo... eccccsssscsssssscssessessesseseessessesssesccseeseessacsssscseessseanss 354 Okla. Stat. Ann.tit. 21, §7OLU1oeeecccsccecesssssessesscssessssssesccseesecsessessscesenseaes 354 Penal Code section 1098.00...eseseceecescesecesecsecesacecsescssssssccesseesseesnessessessessesecs 36 Penal Code section 1202.40.00...ccsssssccsssccsrecsseccsesescesssscensseeseeesatsceeesscessesssseceuss 407 Penal Code section 12022.5.........esssesesessseccsecceceecesaedesessecsasscsessessceessestessesteseeseenes 2 Penal Code section 1239, subdivision (D)..................:c:cccccsscsssssssssssessscssscsscesseceees 1 Penal Code section 1259.........eseesscssssssesececeesscesessesasessesesesessessesseseeessecesseessesases 161 Penal Code section 187.0........:cccssscsscssssssssssssscsssscsscsecessscensesceessecseesescsssssscssssssacseoass 1 Penal Codesection 190.2, subdivision (a)(3).............:scssesscssssssscesees 2, 31, 337, 339 Penal Code section 190.3...essesseseseesseccsecetseseeseesesseseeseesscsseeseestesssasenespassim Penal Code section 190.4, subdivision (e)................0. Lacccessseessceeceessensssccecessencsscsenees 2 Penal Code section 190.5...escscssscsssssssessessessscseensseecsseesssesacsssececsscscesssssesaeas 309 Penal Code section 192.00...cccccsscssecseccccceccssssscececeecsessceccecensensseccscs 56, 62, 69, 71 XXXV Penal Code section 2601 o...........cccseccccssscsccesntcccesenssscccecsesceesessssnseceenecceceesees 170, 278 Penal Code sections 664/187 ...........cccsccsssssceseceseeceeseeestsceeceasscsesssssesssassnsenssessseseneeees 1 People v. Steele (2002) 27 Cal.41230 vescceccessssssssesscssssssessessessesseessessessesseatecseeaees 63 S.C.Code Ann, §§ 16-3-20(A), (C).....sesssssssssscssessssescssssssscssssssseessassssesssseeseeaes 354 S.D. Codified LawsAnn., § 23A-27A-5 (1988).........:sesscsseesceesesesessssensesseeaseeees 354 sections 190.2(a)(4) and (2)(18) 0...eeeseseeseeesceecesceeceseseneseesessecssssaseuseeseeeeeeeaes 312 Tenn. Code Ann. §, 39-13-204(8)...eeeeeeeesssssesssensssseseseesessesesssessssesassenseesneees 354 Tex.Crim. Proc. Code Ann., § 37.071(C)..........c.sccsecseseeeceessessesssesseceseesseesesseneeenas 354 Tx. Pen. Code § 19.02 0...ccecscccsseecceesescseesseecesssseseseeseassseecsseessssessacunsesncesseneseass 74 Va. Code Ann, § 19.2-264.4(C)......:cssssccesesseeeteeceeseccsssscessessessssesusssessscessersensesses SOF Wash. Rev.Code Ann. § 10.95.060(4)..........ccececeeeeseseeesersceeecseenenseseeseeessssenesses 354 Wyo.Stat., §§ 6-2-102(d)(I)(A), (CO)(i) os eeeeeesecceeessssssessssceeeessessssensesnsesesensneeseetanee 354 Other Authorities 2 Wharton’s Criminal Law (15th ed. 1994) oo.eesceereesesseceeresseeneecseseseensenes 65 C. Haney and M. Lynch, Comprehending Life and Death Matters: A Preliminary Study of California's Capital Penalty Instructions (1994) 18 Law and Human Behavior 411i....eeccsscccessccessccseceseceeesenescesessesessssssessssesesssssssssosssconseersneses 323 Goldstein, The State and the Accused: Balance ofAdvantage in Criminal Procedure (1960) 69 Yale L. J. 1149.ececneccenseeeneeeeneneeeneeneeneneenees 334 Haney, Sontag, & Costanzo, Deciding to Take A Life: Capital Juries, Sentencing Instructions, and the Jurisprudence ofDeath (1994) 50 Journal of Social Issues 149 occececcceecscssscssecscsessessesnsesecscsecesseesecececcesecessesceecsssssssscesscesesssnsenssssseessesnenes 323 LaFave, Criminal Law (4° ed. 2003) ....ssssssssssssosssssecesenecccnnnsneeseecesesnsnuuestsesssee 65 Logan, W.Proportionality And Punishment: Imposing Life Without Parole On Juveniles (1998) 33 Wake Forest L. Rev. 681 .......... cc cscesscseseseseeeseseeeeeeeenees 310 Note, Public Disclosures of Jury Deliberations, 98 Harv. L. Rev. 886................ 164 Note, The Presumption of Life: A Starting Point for Due Process Analysis of Capital Sentencing (1984) 94 Yale L.J. 351... eeceseesseessenesseneeeeeteseeneesenes 384 XXXVI Ongerth, S., Deference to the Majority: Why Isn’t the Supreme Court Applying the Reasoning OfAtkins v. Virginia to Juveniles? (2003) 37 Loy. L.A. L. Rev. ABB Loe cescssesseccscecsecesccsceesceescescesssseeseessseceseceesesssesessesassaeesseeseceneesesesseeeseessseucenss 310 Perkins & Boyce, Criminal Law (3d ed. 1982) ..........cccsscsssssscssssscsecssssscsscssesscees 66 Quigley, Human Rights Defenses in U.S. Courts (1988) 20 Hum.Rts. Q. 555 ..393 Riesenfeld & Abbot, The Scope ofthe U.S. Senate Control Over the Conclusion and Operation ofTreaties (1991) 68 Chi.-Kent L. Rev. 571] o..wuceee393 Shatz & Rivkind, The California Death Penalty Scheme: Requiem for Furman? (1977) 72 NLY.U. L.Rev. 1283 oo... eecccccesseessscessessessessseseeeseesesseseccesscsssesesees 344 Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty (1998) 83 Cornell L. Rev. 1557.00.00...242 Taylor, L., Comment: Provoked Reason In Men and Women:Heat ofPassion Manslaughter and Imperfect Self-Defense (1986) 33 U.C.L.A. L. Rev. 1679 ..73 Constitutional Provisions Calif. Const., Art. 1, § 17.0...cececccccccccesscsssccsesssssssscessescscasceseecessesscestecessusesazesees 301 Calif. Const., Art. 1, § 15 occeessssccescescssssecsecsecssessescssesacssessscseccsessssssssssesessssees 59 USS. Const., Amend. [Vou... ccsceccsccccsssscnsssccesssscecossssassascsssscecesatsssseterensecs 35, 290 US. Const, Amend. V ou.ceeesscssscssesscscesnesssecnsssceassnssersesssenenssseeseeeseestsaes passim US. Const., Amend. VI...eecceccsescssessseessetscessencssccscesstesseesseessssssseeseessenes passim ULS. Const., Amend. VIUDocceecssetsssssscessssecscsesseesssesseseneessssesesessesseees passim US. Const., Amend. XIV «0.0...ceeeseseesseseeeeesceseeeseacenscessessestesnecssesseeaeesseseens passim XXXVIi STATEMENT OF APPEAL This appealis from a final judgmentofdeath followinga trial, and is authorized by Penal Code section 1239, subdivision (b). STATEMENT OF THE CASE On November7, 1994, the Alameda County District Attorney filed a five- count information against defendant and appellant, Matthew Aric Souza, and his codefendant and brother, Michael Anthony Souza, charging the following: 1) 2) 3) 4) 5) Count one charged a December 19, 1993 violation ofPenal Codesection 187 (first-degree murder ofRegina Watchman) Count two charged a second December19, 1993 violation of Penal Code section 187 (first-degree murder ofDewayne Arnold); Countthree charged a third December 19, 1993 violation of Penal Code section 187 (first-degree murder ofLeslie K. Trudell); Count four charged a December9, 1993 violation of Penal Code sections 664/187 (attempted premeditated murder of Rodney James); Countfive charged a second December19, 1993 violation of Penal Code sections 664/187 (attempted premeditated murder ofBeulah John). (CT 484-487.)! 1 “CT”refers to the Clerk’s Transcript on appeal. “RT”refers to the Reporter’s Transcript. Portions of the Reporter’s Transcript are contained in Asto all ofthe counts, the information added allegations that Matthew Souza personally used a shotgun and Michael Souza personally used a rifle in the commission ofthe offenses within the meaning ofPenal Code sections 1203.06 and 12022.5. (CT 484-488.) Finally, the information added a multiple murder special circumstance allegation pursuant to Penal Code section 190.2, subdivision (a)(3). (CT 486.) On March 21, 1995, both men pleaded not guilty to all counts and denied all of the special allegations. (CT 498.) On March 29, 1996, the information was amendedtostrike reference to specific firearmsin the firearm use allegations undersections 1203.06 and 12022.5. (CT 503-507.) On the same date, both men pleaded not guilty and denied the special allegations ofthe amended information. (RT 1-2.) On July 6, 1998, the guilt phase oftrial commenced with jury selection. (CT 547.) On October 20, 1998, the jury found both brothers guilty as charged in all counts and found the firearm use allegations to be true. (CT 739-751.) As to Matthew Souzaonly, the jury found true the multiple murder special circumstance allegation. (CT 749.) On October 28, 1998, the penalty phase of trial commenced. (CT 759-760.) On November18, 1998, the jury returned a verdict fixing the penalty at death. (CT 791.) On February 17, 1999, Mr. Souza applied for modification ofthe death verdict pursuant to Penal Code section 190.4, subdivision (e). (CT 794-797.) On February 19, 1999, the court denied the application and imposed the judgment of death. (CT 794-797.) The court further imposed consecutive terms of25 years to separate volumesthat are not sequentially paginated with the main volumes. Citations to those volumes are preceded by the date on which the proceedings were held. All statutory references are to the Penal Code unless otherwise noted. life each on the three murder convictions plus 10 years for the firearm use, as well as concurrentlife terms on both attempted murder convictions, all of whichit ordered stayed pending imposition of the judgment of death. (CT 798-799.) This appeal is automatic. STATEMENT OF FACTS THE GUILT PHASE A. The Prosecution’s Case In Decemberof 1993, appellant, Matthew Aric Souza, was 18 years old. (RT 2180.) His brother and codefendant, Michael Souza, was 19.7 (RT 2180.) Their Native American mother, Rebecca Souza, wasliving in a room ofher cousin’s Oakland apartment.’ (RT 2068-2070, 2115.) The boys did not have a home, but rather divided their time betweenrelatives, family friends, and sleeping on a mattress on the floor oftheir mother’s room. (RT 2070-2072, 2091-2092, 2120, 2123.) December 18, 1993 wasoneofthe nights they stayed with their mother. (RT 2096.) 1. The Regina Watchman party and the assault upon Rebecca Souza. On the evening ofDecember 18, 1993, the Hilltop Tavern in Oakland, a popular gathering place for Native Americans, hosted a Native American fund- raiser. (RT 2026-2027, 2073-2074.) Ms. Souza, who frequented the bar, attended the event with a co-worker, Esther Dale. (RT 2074-2075, 2118, 2617, 2620, 2627.) Amongtheother guests that evening were Regina Watchman,her cousin, ? Asboth defendants had the samelast name, appellant will be referred to by his first name, Matthew and his brother will be referred to as Michael. 3 Sometime after the charged crimes, Ms. Souza remarried and changed her nameto Miller. (RT 2067-2068.) However, as her name was Rebecca Souzaat the time of the events, and as the witnesses referred to her by that name, that is the name by which shewill be referred in the briefing. Dewayne Arnold,his sister, Victoria Joyce Arnold Gonzalez’, their cousin, Ed Arnold, Martin Jones, Beulah John, Leslie Trudell,Rodney James, his brother, Casey James, Lea Coss, and Hillary Leonesio. (RT 2026-2027, 2029-2030, 2511- 2512, 2530, 2622, 2682, 2687, 2723, 2924.) Most ofthe other guests were part of a close-knit local Native American community. (RT 2027, 2031-2032, 2650, 2683, 2723, 2756.) Many were related to each other. (RT 2128, 2146-2147, 2240, 2650, 2683, 2687.) However, Ms. Souza was something of an outsider, who did not know,or was only slightly acquainted with, most ofthe other guests. (RT 2034-2035, 2125-2128, 2133-2134, 2517, 2685, 2724.) No one other than Esther Dale knew or had ever met her sons. (RT 2612-2613.) Other than Ed Arnold, who had been sobersince 1987, everyone consumed alcoholat the event. (RT 2075, 2515, 2619-2620, 2651, 2916.) Ms. Souza eventually became intoxicated. (RT 2035, 2082.) Near the end ofthe event, Martin Jones noticed a “distressed” Ms. Souza looking for her purse. (RT 2501- 2502.) | Whenthe tavern closed at 2:00 a.m., the guests went to the Lake Merritt- area apartment ofRegina Watchman in order to continue the party. (RT 2030, 2032-2033, 2076, 2131, 2240-2244, 2516-2518, 2623, 2725, 2914-2916.) Ms. Souza was invitedto the party, but did not know Ms. Watchman. (RT 2076-2077, 2085, 2133-2134, 2656-2657.) Joyce Arnold, with whom she was slightly acquainted, drove Ms. Souza and Beulah John to the party. (RT 2126, 2134, 2516-2517, 2684-2686.) Esther Dale left her car at the tavern and droveto the party with her boyfriend, Ed Arnold, andhissister, Jeri Davis. (RT 2074-2075, 2078, 2619, 2626, 2649, 2925.) Watchman’s boyfriend, Raymond Douglas, had been at Watchman’s apartment all evening with her mother and children while Watchman attended the fund-raiser. (RT 2234-2235.) According to Douglas, guests began arrivingat the ‘ Asthe other witnesses generally referred to Ms. Gonzalez as “Joyce apartment at around 2:00 a.m. (RT 2239, 2349.) Many ofthe guests appeared as if they had “been drinking quite a while.” (RT 2245.) More alcohol was consumedat the party and someofthe guests became “pretty drunk.” (RT 2033- 2034, 2040-2041, 2245, 2306, 2349, 2755.) By all accounts, the two-story apartment was very small and crowded with furniture. (RT 2035, 2235, 2304-2305; see also People’s Exhibits 33 A-L [photographs ofroom after shooting].) The bedrooms were onthe upstairs level, where Watchman’s children and motherslept all evening. (RT 2236, 2244, 2438.) The downstairs level, where the party was held, had an openfloor plan; it was essentially one room with the kitchen area in one small nook and the laundry area and stairwell in another. (RT 2035, 2236, 2551; see also People’s Ex. 31; Deft. A’s Ex. A>.) By mostestimates, approximately 12 to 16 guests attended the party. (RT 2035, 2138, 2240, 2305, 2519, 2688, 2727.) Given the size and contents of the room,it was very crowded. (RT 2305.) Anywherefrom one to two hours after the party moved to Watchman’s apartment, Watchman confronted Ms. Souza. (RT 2034-2038, 2041-2042, 2085, 2138, 2732, 2758.) According to Ms. Souza, she did not know Watchman,had never spokento her before, did not know why she confronted her, and could not even recall what Watchman had said to her. (RT 2085-2087, 2133-2134, 2141.) According to Lea Coss, Watchman’sclose friend since childhood, Ms. Souza was talking to Hillary Leonesio when Watchman walked by and accidentally bumped into her. (RT 2765-2767.) A few minutes later, Watchman sat down near them and twice asked Ms. Souza and Ms. Leonesio if anything was Amold,” that is the name by which she will be referred in the briefing. The defense exhibits were marked separately for each defendant, denoted as “Deft. A” and “Deft. B.” (See CT 734-738.) Several hand drawn diagrams ofthe downstairs level of the apartment were utilized during the trial and admitted into evidence, although none weretoscale. (See People’s Trial Exhibit 31 and RT 2250-2254; Deft. A’s Ex. A and RT 2295, wrong. (RT 2767-2768.) Each time, the womenreplied that nothing was wrong. (RT 2768-2769.) Watchman got up, walked over to the women and asked them a third time if something was wrong. (RT 2769-2770.) Although the women again respondedthat nothing was wrong, Watchman ordered Ms. Souza to leave. (RT 2770.) According to Ed Arnold, when Watchman approached Ms. Souza and Ms. Leonesio, Ms. Souza asked Watchman who she was; Watchman told her that she lived in the apartment. (RT 2918.) Ms. Souza nonsensically replied by asking wholived in the apartment and Watchman again told her that she lived there. (RT 2918.) The exchange was repeated a few times before Watchman ordered Ms. Souza to leave. (RT 2918.) Bythis time, the commotion drew theattention of the other guests. (RT 2040, 2246-2247, 2519-2520.) According to some witnesses, both women appearedto be intoxicated. (RT 2040, 2249-2250.) Most ofthe guests heard Watchman ordering Ms. Souza out ofthe apartment. (RT 2036, 2686, 2730, 2770.) By all accounts, when Ms. Souza did not leave immediately (see RT 2037, 2247-2248, 2308, 2686-2687, 2770-2771, 2918) Watchman — a very large woman ~— attacked her. (People’s Trial Exhibit 26.) According to Ms. Souza, Watchman hit her in the back ofthe head and knocked herto the floor. (RT 2086-2087, 2141-2142.) Once Ms. Souza was down, Watchman began kicking herin the ribs and calling her a whore. (RT 2087-2088. 2142-2143.) The other guests did not see Watchman strike Ms. Souza. (RT 2390, 2919-2920.) However, by all other accounts, Watchman grabbed Ms. Souza bythehair, pulled or knocked her down, and dragged herby the hair across the room. (RT 2038-2039, 2144, 2248-2250, 2310-2311, 2451, 2519-2520, 2628, 2687, 2731, 2771-2772, 2919-2920.) According to some witnesses, Watchman draggedher to 2527-2529, 2760-2764; Deft. A’s Ex. D and RT 2783-2784; Deft. A’s Ex. 1 and the front door (RT 2038-2039, 2250-2251, 2731, 2772, 2920); according to others, she dragged herout the front door (RT 2314, 2520-2521); according to Ms. Souza, she dragged her out the front door and down several cement steps outside (RT 2089, 2144, 2250; see also People’s Exibit 33.) Also according to Ms. Souza “everyonejust stood around” while Watchman assaulted her. (RT 2090.) Indeed, by all accounts, no one attempted to physically intervene in Watchman’s attack on Ms. Souza. (RT 2628, 2377-2378.) By most accounts, no one attempted to interveneat all. Only Raymond Douglas testified that “a couple ofpeople” told Watchman to stop. (RT 2316.) After witnessing the assault, Ed Arnold, Jeri Davis, and Esther Dale decided that they should leave. (RT 2628, 2687, 2920.) When they walked outside, Ms. Souza asked them to give her a ride home. (RT 2629, 2920-2921.) They agreed. (RT 2146-2147, 2629, 2920-2921.) 2. Ms. Souza’s conduct and emotional state following the assault. According to Ms. Souza, she was drunk, in pain and shock, and sobbing after being assaulted. (RT 2145, 2149.) Ed Amold and Esther Dale confirmed that she was crying, very upset, and complaining ofpain on the 20 to 25 minute drive to her home. (RT 2629-2630, 2655.)° Dale, who had beendrinking throughout the evening, could not recall most ofwhat Ms. Souza said on the drive home. (RT 2630-2633, 2651.) However, Ed Arnold, who was soberthat night and had been for seven years, clearly recalled that on the drive home, Ms. Souza “constantly” referred to “those people” who had “beaten her up” and wanting to “get even” with them. (RT 2921-2922.) As Arnold explained, Ms. Souza was not making any sense RT 2970; Deft. B’s Exs. G and F and RT 2357-2359.) Jeri Davis did not testify. because he knew that a group ofpeople had not beaten her, but rather that Watchman alone had dragged her out of the apartment by the hair. (RT 2921- 2922.) Nevertheless, although Arnold told her calm down, she continued her | refrain about “those people” who had “beaten”her up all the way home. (RT 2631-2632, 2655, 2922.) Ms. Souza herself claimed to recall little ofwhat she had said on the drive home. (RT 2090, 2112.) At the preliminary hearing, Ms. Souza testified only that she had said that she would not put up with what had happenedto her and that she wouldtell her sons aboutit. (RT 2111.) At somepoint, Ms. Souza realized that she did not have her coat and purse. (RT 2097-2098, 2129.) While she could not recall what she had done with them, she decided that she must have left them at Watchman’swhen she wasejected. (RT 2080, 2097-2098, 2129, 2134-2135, 2137, 2222.) It was important to her to retrieve her purse because it contained her asthma medication and identification. (RT 2097-2098, 2175, 2214.) She “may have”asked Jeri Davis to call the _ apartment and inquire into the whereabouts ofher purse and coat, but could not recall for certain. (RT 2149.) After the others dropped her off at home, Ms. Souzarealized that she was or had been bleeding. (RT 2145, 2193, 2216-2217.) The front ofher light colored shirt was obviously stained with blood. (RT 2181-2182, 2217-2218.) While Esther Dale could not recall seeing blood on Ms. Souza on the drive home, she explained that it was possible that she had simply been unableto see it in the darkness. (RT 2634.) Ms. Souza was“hysterical,” crying, in pain, angry, drunk, and bloody when she woke her young sons. (RT 2096, 2099, 2107, 2155-2156, 2193-2194, 2203- 2204.) Once again, she claimed torecall very little about what she actually told them. She did recall telling them that she had been “beaten” and she was certain that they saw the blood on her. (RT 2098, 2188, 2193.) However, she could not recall the details she had given them about the beating or whethershe told them that “one woman”orthat “a whole bunch ofpeople” had beaten her. (RT 2211.) She wasnotcertain, but “thought” that she “probably” said “something along the lines” of a woman having attacked her. (RT 2211-2212.) At the preliminary hearing, she testified that she told her sons that she wanted to “get even with her,” but could not recall making that statementat trial. (RT 2199-2201, 2206.) While she “thought” that the boys became upset when they saw their mother and heard her story, she claimedto recall little elise about the boys’ reaction. However, she told police that they became very upset and said that they were going to “read the people up,” a term with which she was unfamiliar. (RT 2203-2204.) Finally, she was certain that she told the boys that her purse and coat werestill at the party and that they had to take her back in orderto retrieve them. (RT 2097, 2101, 2108, 2150, 2156, 2214, 2219.) They agreed to drive her to the Lake Merritt area to look for the apartment. (RT 2077, 2102.) Although rifle that Michael had received as a gift from his grandparents wasstored at Ms. Souza’s apartment, the boys left unarmed. (RT 2092-2094, 2102, 2109, 2165-2166.) The trio drove around Lake Merritt in Michael’s blue Mustang for some timein a futile search for the apartment. (RT 2101-2103, 2158- 2160.) Although somewhatless so than she had been, Ms. Souza remained “hysterical” as they drove around. (RT 2106, 2160-2161.) Eventually, she directed the boys to drive to the Hilltop Tavern so that she could look for her purse and coat in Esther Dale’s car. (RT 2161-2162.) Finding no oneat the tavern and Dale’s car locked, they returned to Ms. Souza’s home. (RT 2164.) The boys dropped heroffand left. (RT 2103.) They did not tell their mother where they were going. (RT 2104.) She assumed that they were goingto a relative’s home where they frequently stayed. (RT 2104.) 3. The shooting at the Watchman apartment. 10 The party at Watchman’s apartment continued after Ms. Souza’s assault. (RT 2041, 2521-2522.) About an houror solater, or about 5:00 a.m., guests heard knocking or bangingat the front door. (RT 2041, 2253, 2317-2318, 2747, 2758.) According to witnesses, three Native American men entered the apartment armed with guns. (RT 2042-2043, 2256, 2261, 2263-2265.) None ofthe witnesses knew the men, describing them only as thefirst, second, and third gunman. (RT 2043, 2240, 2261, 440-2441, 2690, 2739.) It was undisputed byall ofthe parties that Michael Souza wasthefirst gunman. (RT 1897-1898, 2338-2342, 2442-2553, 2689, 2734-2735, 3011-3013.) As Michael entered the apartment, he furiously demanded to know who had beaten his mother and the return ofher purse. (RT 2044-2045, 2054-2056, 2260, 2454-2455.) Although noneofthe witnesses knew Michael, they surmised from his statements that he must have been Rebecca Souza’s son. (RT 2057, 2273, 2440-2441.) The main living room area was separated from the eastern entry area by a couch that faced away from the front door and toward the middle ofthe room to the west. (RT 2299-2301, 2758-2764; Deft. A’s Exhibit A.) Michael walked around the couch and stopped directly in front ofit, in the middle ofthe living room. (RT 2052, 2054-2056, 2262, 2330, 2786-2787.) The second gunman walkedto the southern side ofthe living room area, in front of a doorway leading to the laundry area andthe interiorstairs, about six to seven feet away from the couch. (RT 2052, 2056, 2264, 2735-2736.) The third gunman remained next to the front door. (RT 2052, 2264.) Dewayne Arnold and Regina Watchman wereseated on the couch facing Michael. (RT 2052-20533, 2330, 2786-2787.) Standing in front ofthe couch, Michael repeated his angry demand to know whohadbeaten his mother and for the return of her purse. (RT 2055-2056, 2734, 2737, 2786-2787.) Michael’s angry shouting awakened Lea Coss, who hadsleeping on a love seat next to the back door. (RT 2733-2734, 2737, 2784-2785.) Joyce Arnold, who had been upstairs using the bathroom, returned downstairs at this point. (RT 2688-2689.) 1] According to Martin Jones, Michael kept demanding somethinglike, “who jumped my mother?” (RT 2044-2045, 2454.) According to Raymond Douglas’s trial testimony and police statements immediately after the shooting, Michael repeatedly demanded, “which one ofyou motherfuckers beat up my mom,” and “which one ofyou fucking guys beat up my mother.” (RT 2322-2326.) For the first time at the preliminary hearing, andlaterat trial, Douglas claimed that Michaelalso said, “who’s the bitch who beat up my mom.” (RT 2260, 2262, 2327.) According to Joyce Arnold, Michael repeatedly demanded something to _ the effect of, “who did that to our mom.” (RT 2688-2689, 2692-2693.) According to Lea Coss, Michael angrily yelled something like, “who kicked my mother’s ass, just show me whodid it.” (RT 2733-2734, 2778.) He might also havesaid, “Show me whichoneis the bitch that kicked my mother’sass and stole her purse.” (RT 2733-2734; compare RT 2778.) Dewayne Arnold weighed 230 poundsandstoodfive feet, eight inchestall. (RT 1944.) He had consumed an inordinate amountofalcohol, as well as methamphetamine, during the course ofthe evening. (RT 1944-1947.) He stood up from the couch, said something about knowing Michael’s mother and demanded,“what the fuck is going on” or “whatthe hell’s going on here.” (RT 2057, 2332, 2454-2456, 2505.) According to Coss, Arnold tried to grab Michael’s gun; in response, Michael hit him twice with the gun. (RT 2738-2740, 2789.) The other witnesses did not see Michael actually hit Arnoid with the gun. According to Jones, Michael swung the gun at Arnold and, in response, Arnold tried to grab Michael. (RT 2058-2059, 2457.) At that point, Jones noticed the second gunman step forward and aim his gun at Amold. (RT 2059, 2341.) Jones grabbedthe refrigerator, pulled it away from the wall, and hid behind it. (RT 2060, 2341.) According to Raymond Douglas, after Arnold stood up,his attention wasfocused on the third gunman next to the front door when he heard the sounds ofArnold and Michael “scuffling.” (RT 2333, 2381.) During the scuffle, Michael hit a lamp sitting on an adjacent table, which everyone heard land on the floor with 12 acrash. (RT 2058-2059, 2301, 2332, 2381, 2457, 2833, 2835.) Immediately thereafter, shots rang out. (RT 2060, 2332-2333.) Remarkably,all ofthe prosecution’s witnesses claimed that they could not recall seeing any ofthe men actually fire a gun. (RT 2266-2267, 2368, 2430, 2525-2526, 2700, 2743.) However, according to Lea Coss, as she stoodup to run out the back door, she heard a loud “pop”and saw flash from Michael’s position. (RT 2811-2812.) At the preliminary hearing, when her memory wasbetter than it wasattrial, she testified that although she did not actually see Michaelpull the trigger, she believed that he had shot Arnold. (RT 2809-2810.) Coss ran outside to the back patio and hid there with Hillary Leonesio, from which she heard several shots fired inside and in rapid succession. (RT 2742-2743, 2795, 2799.) Similarly, Raymond Douglas wasstanding only a few feet from Michael when hesimultaneously heard thefirst shot and saw a flash from Michael’s position. (RT 2266, 2362-2366.) The second gunman wasstill standing some distance away from Michael, in front ofthe doorway to the laundry nook. (RT 2363.) Douglas never saw the second gunman fire his weapon. (RT 2363, 2368.) After the first shot was fired, Douglas fell to the ground and covered his head. (RT 2266.) He estimated thathe heard a total of four to six shots, all sounding as if they came from Michael’s position in the middle ofthe living room. (RT 2266- 2267, 2334, 2365-2366, 2379.) It also soundedasifthe first shot was fired from a different gun than the other shots. (RT 2379.) From his location behind the refrigerator, Martin Jones heard oneshot, a briefpause, then several more shots fired in rapid succession without any pauses between them. (RT 2060, 2432.)’ As Douglas hadtestified, Jones testified that one ofthe shots soundedas if it came from a different weapon than the other shots. (RT 2430, 2433, 2478.) Attrial, he testified that he could not tell what kind ? Attrial, he testified that he heard at least 14 ofthe rapidly fired shots. At the preliminary hearing, he testified that he heard more than two butless than five. (RT 2480.) 13 of guns fired the shots. (RT 2430, 2478.) At the same time, he testified that although the louder shots were in continuous, rapid succession,to his untrained ear they sounded more as ifthey were fired from a semi-automatic weapon than an automatic weapon. (RT 2061, 2430.) Finally, while hetestified at trial that the duration of the shooting was 10-11 seconds, hetestified at the preliminary hearing, whenhis memory was admittedly better, that the duration was “around”four seconds. (RT 2481-2482.) When the shooting stopped, the men ran out the front door, followed by the soundofa car “screeching” away. (RT 2267, 2433, 2744.) Beulah John could not recall anything about the armed men entering the apartmentor the shooting itself. (RT 2522, 2524-2526, 2534.) She could recall only that she hadbeensitting at the kitchen table directly behind the couch with her son and Rodney James when someoneshouted, “hit the floor.” (RT 2524, 2529-2530; Deft. A’s Ex. A.) After dropping to the floor, she realized that she had been shot in the leg. (RT 2523-2525.) The next thing she remembered wasbeing driven to the hospital by ambulance. (RT 2526.) Apparently, Joyce Arnold also suffered some memory loss ofthe shooting. (RT 2700, 2715.) She testified that she did not witness the shootingitselfor even hear any shots because she believed that it had occurred while she wasstill upstairs. (RT 2693, 2700.) However, she did not notice that anyone had been shot when she came downstairs. (RT 2693.) Further, the statements shetestified that heard Michael making as she came downstairs actually occurred before the shooting. (RT 2692-2693.) In other words, she apparently had no memory of what occurred between hearing Michael’s heated words and seeing that people, including her brother, Dewayne Arnold, had been shot. (RT 2693-2694.) According to the witnesses, Dewayne Arnold had been shot several times and lay dead or dying on the floor immediately in front ofthe couch where he had been sitting. (RT 2268-2269, 2273, 2435, 2746.) Regina Watchman had also- been shot several times and remained seated on the couch, apparently dead or dying. (RT 2268, 2399, 2436, 2745.) Leslie Trudell had also been shot and lay 14 dead immediately behind the couch. (RT 2269, 2434, 2745; People’s Ex. 33; Deft. A’s Ex. A.) Rodney James appeared to have been shot oncein the shoulder, although he remained conscious andseated in a chair next to the kitchen table immediately behind the couch. (RT 2270, 2437, 2744-2745; People’s Exs. 33; Deft. A’s Ex. A.) Although Beulah John had been shot in the leg while seated at the kitchen table immediately behind the couch, she apparently took a few steps into the kitchen area, where she lay on the floor. (RT 2438, 2529-2530, 2745, 2693-2694.) Emergency personnel and police arrived within minutes after the shooting stopped. (RT 2271, 2288, 2439, 2747, 2553-2554.) 4. Evidence gathered after the shooting. Numerouspolice officers and emergency personnel arrived on the scene and immediately began tending to the victims. (RT 2273, 2553, 2556-2557, 2589, 2591-2592.) In their haste to do so, they shovedaside virtually all ofthe furniture in the small, crowded room. (RT 2273, 2555-2556; compare People’s Ex. 31 to Deft. A’s Ex. A.) By the time the police evidence technician, Monica Russo, arrived on the scene at about 5:20 a.m., all of the victims had been removed, except the body ofLeslie Trudell. (RT 2253-2256.) However, she did note the locations offive large bloodstains presumably left by the shooting victims before they were removed. (RT 2258-2259; People’s Ex. 31.) Russo also recovered, and noted the locations of, 14 .223 caliberrifle casings, one .25 automatic casing, and two slugs or bullets. (RT 2557, 2568- 2569.) The casings and slugs werescattered all around the room. (RT 2563-2566, 2571-2573.) While she noted the locations ofthe casings and slugs when she arrived on the scene, she readily acknowledged that they could have been kicked or moved by the many police and emergency personnel on the scene before her arrival. (RT 2556-2557; see also RT 3001-3002; People’s Ex. 31.) 15 Russo also found two bullet holes to two walls. (RT 2574.) One wasto the north wall, about three feet above the floor. (RT 2576.) Although it went completely through the wall andinto the parking lot outside, she was unable to locate that bullet. (RT 2574, 2576.) The second wasto the south wall in the kitchen area, near the eastern corner. The bullet was lodged inside ofthe wall in such a wayas to preclude recovery. (RT 2575-2576.) She found no evidence to suggest that a shotgun had been fired in the room. (RT 2587-2588, 2590-2591.) . Regina Watchman, Dewayne Arnold, and Leslie Trudell all died from their gunshot wounds. According to the state’s pathologist, Arnold had been shot a total of seven times, three times to the chest, once to the abdomen,once to the upper thigh, once to the back, and onceto the back forearm. (RT 1939-1941.) Depending onthe kind of gun used, the pathologisttestified that stippling is generally found when someoneis shot within close range, usually within about 20 inches. (RT 1948-1950.) Stippling can be absorbedin the clothing without reaching the skin. (RT 2013.) While there was no stippling to Armnold’s skin, the pathologist was nevergivenhis shirt to examine. (RRT 2012-2013.) Toxicology testing revealed that his blood alcohol level was .54, “a very high,” frequently fatal, level. (RT 1945-1947.) Testing also revealed the presence of a “fairly high level” ofmethamphetaminein his system. (RT 1945-1946.) Watchman hadbeen shotthree times, once in the right shoulder, once in the right arm, and once in the upper chest. (RT 1924-1925.) From the location ofher wounds, the pathologist could only determine that gun had been fired from her right. (RT 2003.)® The pathologist found some black material on the right sleeve ofRegina Watchman’s shirt consistent with stippling, but none on her skin. (RT 1950, 1996.) Toxicology testing revealed that her blood alcohol level was .12. (RT 1948.) 8 The second gunman’sposition in front ofthe laundry area wasto herleft. (Deft. A’s Ex. A.) 16 Leslie Trudell had been shot twice, once to the left side ofthe back ofthe head and onceto the left side of the upper back. (RT 1956-1957.) There was no evidenceofstippling, so the pathologist concluded that he had been shot from a distance of “three feet or so.” (RT 1959.) The pathologist found no evidence that the victims had been shot with a shotgun. (RT 1980-1987, 2014-2015, 2021- 2022.) She removedbullets and bullet fragments from Watchman’s, Arnold’s, and Trudell’s bodies and gave them to police for analysis. (RT 1933-1938, 1969- 1976.) According to Beulah John, a bullet entered and exited her leg, leaving two wounds. (RT 2523.) No direct evidence was presented as to how manytimes Rodney James, whodied of other causes about two years after the shooting, had been shot. (People’s Ex. 35.) However, witnessestestified that he appearedto have been shot once in the arm or shoulder. (RT 2270, 2437.) Furthermore, according to the prosecution,all of the victims had been shot with the samerifle firing the .223 bullets. (RT 3292, 3441.) Only 14 .223 caliber casings were recovered, which corresponds to James having been shot only once. (RT 2557, 2568-2569.) A police firearm examiner analyzedthe ballistics evidence. (RT 2839- 2842.) He was never provided any guns against which to comparethe evidence. (RT 2862.) However, he was able to determinethat all 14 ofthe .223 caliber casings recovered from the scene were fired from the same weapon. (RT 2857- 2858.) One ofthe slugs or bullets recovered from the scene wasa .223 caliber and the other was a .25 caliber automatic. (RT 2859.) One bullet removed from Regina Watchman, four bullets removed from Arnold, and one ofthe fragments removed from Leslie Trudell were all definitely .223 caliber. (RT 2859-2863; People’s Exs. 3-4, 7, 9-10, 13, 15-16.) Ofthe six .223 caliber bullets the examiner was provided, he was able to determine that five were fired from the same gun. (RT 2863-2864.) A fragment recovered from Trudell and one ofthe fragments recovered from Watchman werealso “likely” fired from that gun. (RT 2861- 17 2862.) The remaining fragments were too small to identify and/or compare. (RT 2860-2863, 2878-2879; Exs. 1, 8, 11, 12, 14, 17.) Rifles that fire .223 caliber ammunition can be automatic or semi- automatic. (RT 2851-2852.) Onesignificant difference between an automatic and a semi-automatic is that the former will continuously fire bullets with one trigger pull while thelatter fires only one round with each pull of the trigger. (RT 2852.) Both automatically eject their casings as they are fired. (RT 2874.) Their magazines can hold anywhere from five to 50 or more rounds. (RT 2865-2866.) Based upon the foregoing evidence, it was eventually undisputed thatall of the victims had been shot with an automatic or semi-automaticrifle firing .223 ammunition, which had beenfired 14 timesin the apartment; a .25 automatic had been fired at least once; and a shotgun had not been fired. However, the witnesses’ accounts ofwhich man carried which gun, as well as the kinds of guns they carried, varied significantly. According to Martin Jones’s trial testimony and police statements, he was certain that Michael carried a 12 gauge, sawedoffor short barreled shotgun;the second gunman carried an assault rifle with a clip; and the third gunman carried a silver, .25 semi-automatic handgun. (RT 2044, 2046-2047, 2049, 2477, 2500, 2508.) However, according to his preliminary hearing testimony, he was not certain that Michael’s gun was a shotgun;rather, hetestified only that Michael’s gun was “something that looked like a shotgun,” “something sawedoff” or short barreled. (RT 2475-2477, 2500.)” According to Raymond Douglas’sinitial trial testimony, Michael carried a shotgun; the second gunman carried a smaller, silver gun with a clip that appeared to be an automatic; and the third gunman carried a revolver. (RT 2256-2258, 2263-2265, 2346.) According to Douglas’s prior police statements and 9 While it was undisputedthat a shotgun wasneverfired, Martin Jonestold police that he wascertain that the shotgun was fired more than once because he was familiar with the sound and smell. (RT 2478.) 18 preliminary hearing testimony, the second gunman carried a handgun orpistol and not arifle. (RT 2342-2343, 2347-2348, 2375-2376.) Having his recollection refreshed with those prior statements, Douglas testified that the second gunman in fact carried a handgun orpistol, not a rifle. (RT 2348-2349.) Lea Coss could only describe Michael’s and the second gunman’s weapons aslarge guns— shotguns or riles — about 22 to 24 inches long. (RT 2734-2736, 2806.)"° Police canvassed Watchman’s neighborhoodafter the shooting. Charles Hokeslived in the same building, next door to Watchman. (RT 2603.) According to Hokes, he had been asleep when he was awakenedbythe soundofgunfire. (RT 2603-2604.) He heard at least two shots fired in rapid succession, without any pauses or intervals between them. (RT 2603-2604.) Shortly thereafter, someone knockedat his door. (RT 2605.) He openedit to a woman whosaid that her friend had been shot and neededto use his phoneto call police. (RT 2605-2606.) Page Nelson lived about 80 yards from Watchman’s apartmentbuilding. (RT 2424.) According to Nelson, he was bathing at about 5:00 a.m. when he heard one loud shot. (RT 2405, 2424.) That shot was followed by a series of shots fired in rapid succession, followed by a pause oftwoto five seconds, followed by several more shots fired in rapid succession. (RT 2405-2408, 2420- 2423.) After the shooting stopped, Nelson looked out of his window. (2410.) About a minute later, he saw a dark colored sedan, perhaps a Mustang, driving carefully and within the speed limit from the direction ofthe parking lot of Watchman’s building. (RT 2411-2413, 2415-2416.) That car looked “very similar” to Michael Souza’s car. (RT 2418-2419.) Police took statements from the party guests who had witnessed the shooting both at the scene at about 5:40 a.m. and later that morningatthe police 10 Uponcross-examination by Michael’s counsel, Coss agreed that Michael’s gun lookedlike a shotgun and the second gunman’s gun lookedlike a rifle. (RT 2777, 2788-2789.) However, upon cross-examination by Matthew’s counsel, Coss 19 station. (RT 2271, 2288-2289, 2357, 2439-2440, 2469, 2485-2486, 2714-2716, 2752-2753, 2803-2804.) In Martin Jones’s first statement, he told police that he could not describe and would not be able to identify the second gunman. (RT 2485-2487.) However, he thought that he would be able to identify the first and third gunmen. (RT 2487-2490.) Similarly, Raymond Douglas told police that he could not identify either the second ofthird gunman. (RT 2357.) On December21, two daysafter the shooting, police displayed a photographic lineup containing photographs ofboth Michael and Matthew to several witnesses, including Raymond Douglas, Martin Jones, and Lea Coss. (RT 2274-2275, 2353, 2441-2442, 2484, 2747-2748, 2818-2819.) All ofthe witnesses identified Michael as the first gunman. (RT 2275-2276, 2285, 2318, 2320-2321, 2442-2443, 2748-2749.) None identified Matthew’s photographas one ofthe gunmen. (RT 2353-2355, 2484, 2818-2819.) In fact, both Raymond Douglas and Martin Jones were certain that the lineup did not contain the other gunmen’s photographs. (RT 2354-2355, 2482-2484.) A weeklater, on December 28, police conducted a physical lineup in which Matthew wasthe only Native American and the only person who had appearedin the earlier photographic lineup. (RT 2356; People’s Exs. 25-27.) All ofthe witnesses viewed the lineup together. (RT 2282, 2494, 2751, 2820.) Raymond Douglas and Lea Coss both identified Matthew as the second gunman. (RT 2279, 2286, 2351, 2355, 2750, 2822.) Martin Jones also identified Matthew, but was not sure if he was the second gunman or the third gunman. (RT 2444-2445.) After the shooting, police recovered Michael’s car, which was parked on 9 Avenue in Oakland. (RT 2539-2541.) Inside ofthe trunk, they found three shotgun shells. (RT 2895-2896, 2898-2900.) In the five years between their arrests and the time oftrial, Ms. Souza made admitted that she did not know the difference between a rifle and a shotgun. (RT 2805-2806.) | 20 no effort to visit her sons. (RT 2166, 2168.) Indeed, she only saw them when she testified for the prosecution at the preliminary hearing andat trial. (RT 2168, 2196-2198.) While they were awaitingtrial, she moved to Idaho and remarried. (RT 2115-2116, 2196-2198.) B. The Defense Case. Regina Watchman’s friend, Hillary Leonesio, attended the Hilltop Tavern fund-raiser with her boyfriend, Darrin. (RT 3078-3079.) According to Leonesio, Watchman approachedher during the party and told her that she should confront Ms. Souza because she was “flirting” with and “rubbing up on” Darrin. (RT 3079.) Leonesio did confront Ms. Souza, who denied that she was doing anything inappropriate. (RT 3079-3080.) Since Darrin did not dispute Ms. Souza’s explanation and Leonesio had not seen anything untoward herself, she acceptedit and the matter ended. (RT 3079-3080.) When the fund-raiser ended, Leonesio and Darrin drove to Regina Watchman’s apartment along with the others. (RT 3081.) Because Darrin was drunk, Leonesio left him sleeping in the car in front of Watchman’sapartment while she joined the party inside. (RT 3081.) Although everyone else was drinking, Leonesio consumed only about three beers over the course ofthe entire evening and early morning because she was the designated driver. (RT 3080, 3142-3146.) Sometime that morning, Ms. Souza and Leonesio were talking when Watchman walkedby and, apparently inadvertently, bumped Ms. Souza. (RT 3084.) As Watchman walked upstairs, Ms. Souza asked Leonesio who Watchman was and Leonesio told her that Watchman lived there. (RT 3084-3085.) When Watchman came back downstairs, she approached Ms. Souza andsaid, “What do you mean, whois that woman? I’m Gina Watchmanandthis is my house.” (RT 21 3085.) Leonesio could not recall what else Watchman said, but she grabbed Ms. Souzaby the hair and dragged heracross the room,out the front door, and onto the front porch. (RT 3086, 3123.) Watchman stepped over Ms. Souza’s body, walked back into the apartment, and closed the front door behind her. (RT 3087.) Shortly thereafter, Ed Arnold, Esther Dale, and Jeri Davis left. (RT 3087-3088.) About 30 minutes later, Jeri Davis called Leonesio at Watchman’s apartment and asked her to look for Ms. Souza’s purse and coat. (RT 3088, 3090.) Leonesio looked for the items, but could not find them. (RT 3090.) About 20 to 30 minutes after the telephone call, Leonesio went outside to check on Darrin. (RT 3091-3092.) A blue Mustang with two or three occupants backed up andparkedin front of the apartment. (RT 3093-3094, 3126-3127.) Leonesio walked back into the apartment, then out the backdoorto the patio. (RT 3094-3096.) She looked through a gate, saw the car still parked out front and one man, later identified as Michael Souza, running up the front steps. (RT 3097- 3098, 3129.) She walked back inside and sat down next to Lea Coss on the loveseat adjacent to the backdoor. (RT 3098, 3013.) Michael Souza and two other armed Native American men then entered the apartment through the front door. (RT 3103, 3115, 3124.) Leonesiotestified and told police that Michael carried what looked like an “Uzi.” (RT 3116-3118, 3152, 3157.) Shealso told police that his gun looked like a machine gun andthatall three men’s guns looked “very similar.” (RT 3164-3166.) Michael walked to the middle ofthe living room,in front ofthe couch where Regina Watchman and Dewayne Arnold were seated. (RT 3103-3104.) The second gunman walked to -toward the stairwell and the third gunman remainedat the front door. (RT 3104- 3105.) Michael demanded to know “whobeat up” his mother and wanted her purse. (RT 3105, 3121.) Regina Watchman replied by ordering him out. (RT 3105-3106.) At the preliminary hearing, when Leonesio’s memory was admittedly better, she testified that Watchman replied, “we don’t need that in here. 22 Getthe hell out ofmy house.” (RT 3131.) When Watchman started to get up, Michael moved closerto her with his gun. (RT 3106-3107.) As she sat back down, Dewayne Arnold stood up,as ifto “try to help heror to try to do something.” (RT 3107, 3132.) He wasclearly “mad” and “upset.” (RT 3158.) Michaelhit him with his gun, knocking both Arnold and a lamp over. (RT 3108, 3132, 3161.) As Amoldstarted to get up, Michael shot at him, firing his gun about three times (RT 3109-3110, 3139-3140, 3160-3161.) Leonesio could not tell ifthe bullets actually struck Arnold. (RT 3109-3110.) When Lea Coss jumped up and ran out the back door, Leonesio followed her. (RT 3110.) As she ran out, Leonesio heard at least three to 10 more shots fired continuously and in rapid succession. (RT 3110-3113, 3136, 3138.) The shots all sounded as ifthey came from the same gun,like an “army machine gun.” (RT 3112.) She estimated that the duration ofthe shooting was 20-30 seconds. (RT 3113.) Whenthe shooting ceased, Leonesio and Coss went back into the apartment. (RT 3113-3114.) Leonesio saw the injured victims in roughly the samelocations described by the other witnesses. (RT 3114-3115.) According to police records, the first phone call relating to the shooting was logged at 5:04 a.m. (RT 3072.) Thefirst police vehicle arrived at the scene only two minuteslater, at 5:06 am. (RT 3072.) Leonesio also viewed the photographic lineup on December21. (RT 3116.) Like the other witnesses, she identified Michael as the first gunman but did not identify Matthew. (RT 3115-3116.) In fact, Leonesio neveridentified Matthew as one ofthe gunmen. (RT 3118.) After his arrest, she attended a numberof court proceedings at which he appeared. (RT 3118-3119.) When she testified at the preliminary hearing, she recognized him, but only because she had seen him in court on the earlier occasions. (RT 3118.) Thestate’s ballistics expert explained that the ejection patterns for rifles firing .223 ammunition vary depending on the gun and the position in which it is 23 held whenfired. (RT 3020.) Furthermore,since casings are ejected with force, they often ricochet or bounceoffof objects. (RT 3032-3033.) Sergeant Thomas Swisher was the primary investigatorin this case and arrived on the scene at about 6:30 a.m. (RT 3038-3039.) From information gathered from various witnesses, he learned ofRegina Watchman’s assault upon Rebecca Souza and the names ofher sons. (RT 3042.) Based upon that information, he attempted to obtain photographs ofMatthew and Michael Souza to include in a photographic lineup. Unable to locate any through the criminal justice system, he eventually obtained DMV photographsofthe boys, which he included with “filler” mug shots of other men, in the photographic lineupthat he displayed to the witnesses. (RT 3043-3047, 3051-3053.) Although Swisher was aware that many ofthe witnesses were Native American and that the suspects had been described as Native, the filler photographs were not ofNative American men. (RT 3049-3050.) None ofthe witnesses selected Matthew’s photograph as one ofthe gunmen. (RT 3053.) The boys voluntarily surrendered to police on December 27, 1993. (RT 3053-3054.) On the following day, only Matthew participated in the physical lineup that six of the witnesses attended. (RT 3056.) As noted above, Matthew was the only Native American and the only person who had appearedin the earlier photographic lineup. (RT 2356; People’s Exs. 25-27.) Martin Jones, Raymond Douglas, and Lea Cossall identified Matthew as one ofthe gunmen. However, Coss also identified another“filler” participant as definitely being one ofthe gunmen and another as possibly being one ofthe gunmen. (RT 3060.) Similarly, Rodney James and Martin Jones identified other “filler” participants as possibly beinggunmen. (RT 3060-3061.) Finally, neither Casey Jamesnor anotherparty guest-witness, Mark Dabalos, identified Matthew as one ofthe gunmen. (RT 3061.) Police were never able to identify the thirdgunman. (RT 3061.) Based uponthe foregoing evidence, the jurors convicted both boys as charged ofthree counts offirst-degree premeditated murder and two counts of 24 attempted murder with premeditation. Asto the “multiple-murder”special circumstanceallegation, however, they only found it true as to Matthew and not true as to Michael. (CT 739-751; Pen. Code § 190.2, subd. (a)(3).) For the actual killer, the multiple murder special circumstance allegation required no findings other than liability for the underlying murder charges. Forthe aider and abettor, the jury had to additionally find that he intendedto kill (Pen. Code § 190.2, subd. (c)). Indeed, during deliberations, the jurors specifically inquired into this requirement. (CT 659.) The court answeredtheir inquiry by explaining that the aider and abettor must have an intent to kill and such intent exists where “the purpose, plan, or goal, includes killing.” (CT 659.1) Hence, it is clear from the verdicts that the jurors determined that Matthew wasthe actualkiller, that Michael wasthe aider and abettor, that the aider and abettor did not intend to kill, but that the aider and abettor was guilty ofthe murder and attempted murder charges under the “natural and probable consequences”doctrine, on which they were instructed. (See CT 697.) THE PENALTY PHASE A. The Prosecution’s Case. The only evidence offered in aggravation related to the circumstancesofthe crimesand their impact on the victims and their families. Leslie Miller, chairman ofhis tribe and a relative ofboth Watchman’s and Arnold’s,testified to their good nature. (RT 3518, 3526.) Watchman had four small children at the time of her death, who had beenasleep upstairs at the time ofthe shooting. (RT 3424.) Two ofher children were babies; one ofthe older children seemed to have adjusted to her death, but the other remained disturbed by it. (RT 3524-3525.) 25 Dewayne Armold’s daughter, Angel, testified that he had four children when he died. (RT 3529.) She wasthe oldest, at 18, while the youngest was 11. (RT 3529.) Her father was a great man and she and her family were deeply affected by his death. (RT 3530, 3534,3537.) After the shooting, Joyce Arnold received therapy for five years. (RT 3545.) While she tried to forget the shooting, she did have some flashbacks. (RT 3545.) Patricia Gordon, Leslie Trudell’s sister, testified that he was a Vietnam veteran who had been damaged by his war experience. (RT 3549.) He worked for a nonprofit organization called Indian Youth ofAmerica and did a lot of volunteer work with children. (RT 3548, 3552.) B. The Defense Case. Matthew’s father, Harry Souza, as well as his two other siblings — his older brother, Mark, and his youngersister, Marcie all testified on his behalf. Also testifying on his behalfwere several other family members, such as aunts, uncles, and his maternal grandmother, neighbors, family friends - many ofwhom had known him since childhood and some ofwhom lived with the Souzas for a period oftime — and several former and current teachers. The catalyst ofthe tragedy, Matthew’s mother, did not testify on her son’s behalf. Accordingto virtually all of the witnesses, Michael and Matthew were extremely close, “like twins.” (RT 3612, 3650, 3679, 3755.) Michael, who was older, was the leader and Matthew washis “shadow.” (RT 3612-3613, 3650, 3755, 3779.) Matthew never wanted to be separated from Michael. (RT 3613, 3755.) Shortly after the first grade, Matthew was diagnosed with a learning disability. (RT 3607.) He had a “visual processing deficit” and weaknessin his visual motor skills, which manifested in reading and writing difficulty.” (RT 26 3726.) As aresult, Matthew wasplacedin special education classes throughout elementary school and high school. (RT 3607, 3707-3709, 3711-3712, 3722- 3724, 3817-3819.) At somepoint during their childhood, Rebecca Souzatookall ofthe children except Matthew and movedin with her parents in Idaho for a period of time. (RT 3613-3614.) Matthew wasdeeply affected by being left behind and called Michael every other night. (RT 3614.) Matthew’s paternal uncle witnessed Rebecca becomeintoxicated in front of the children on a numberof occasions. (RT 3836-3837.) She frequently became belligerent and emotional when drunk. (RT 3837-3838.) Nevertheless, Matthew seemedparticularly attached to his mother. (RT 3673, 3770.) Both he and Michael were very protective ofher. (RT 3673, 3758.) When Matthew was aboutnine years old, the family hit hard financial times. (RT 3610.) They were evicted and movedin with friends, the Eaves family. (RT 3610, 3766-3767, 3776, 3785.) All ofthe Eaves described Matthew as an extremely polite and well-behaved child. (RT 3768, 3778, 3785-3786.) The Souzas divorced when Matthew was about 13 years old. (RT 3616.) Sometimethereafter, Mr. Souza remarried. (RT 3616.) The childreninitially lived with their mother. (RT 3616.) According to May Ruth Underwood, a friend and neighbor who witnessed the family dynamics, there were serious problemsin the family after the divorce. (RT 3686.) Ms. Souza began drinking “excessive[ly],” a problem that persisted up to the time ofthe shooting. (RT 3686- 3687.) The boys also stopped going to school. (RT 3686-3687.) One of Matthew’s former teachers confirmed that he stopped attending school regularly during the seventh grade, prompting her to contact Child Welfare. (RT 3717.) Sometimeafter the divorce, Ms. Souza took all of the children and “disappeared” with them. (RT 3616, 3756.) It was a year before their father was able to locate them. (RT 3616, 3756.) 27 Sometimeafter finding his children, Mr. Souza took them for a weekend visit. (RT 3616.) On the night before he was to return them to his ex-wife, she telephoned him and told him to “just keep them, I don’t want them.” (RT 3616- 3617.) The children were very upset by their mother’s abandonment. (RT 3617.) According to Mr. Souza, they were “going out oftheir heads” and “begg[ed] her” to let them come home, to no avail. (RT 3617.) Mr. Souza took custody ofMatthew, Michael, and Marcie and enrolled them in school. (RT 3617.) He never received any reports ofbehavioral or discipline problems with Matthew. (RT 3619.) Mark, the oldest of the Souza children, and his paternal grandparents lived in and managed an apartment complex in Berkeley. (RT 3611, 3619, 3636-3637, 3656.) Matthew and Michael eventually moved in with Mark in order to help their grandparents, whose health was deteriorating. (RT 3619-3620.)!! David Bard wasthe president ofthe company that owned the apartment complex and knew the family well. (RT 3656-3657.) When Matthew livedat the complex and assisted with its management, he was“at all times” well behaved, polite, and respectful. (RT 3657-3658.) Mr. Bard never received any complaints about him. (RT 3658.) While living with Mark and his grandparents, Matthew and Michael often helped his grandmother with a regular volunteer bingo game for seniors, which benefited the Berkeley Symphony. (RT 3760-3761.) He was very helpful with the seniors and always polite and respectful. (RT 3762.) According to Mark, he often took the boys camping. (RT 3634-36365.) Mark owneda shotgun and a .45, which he sometimestook on their campingtrips. (RT 3642.) He allowed the boys to shoot the gunsat large pieces ofdumped garbage, like an old refrigerator. (RT 3642, 3644.) Matthew was an “okay”shot. i Bythe timeoftrial, Matthew’s paternal grandmother had died and his paternal grandfather was in a convalescent home. (RT 3754.) 28 (RT 3645.) Matthew’s father was not aware that Matthew had ever operated any guns. (RT 3621-3623.) While Matthew wasawaitingtrial in the Santa Rita jail, he enrolled in the Amador Adult School. (RT 3789.) He obtained his G.E.D. in 1997. (RT 3791, 3797-3798.) At the timeoftrial, he was taking classes toward earning his high school diploma. (RT 3791.) Although he wastransferred from the Santa Rita County Jail to the North County Jail, he continued his studies through the mail. (RT 3798.) According to his teacher, he was a good student who completed his assignments well and on time, was willing to learn, and seemedto enjoy the learning process. (RT 3797-3798.) Virtually all of the witnesses testified to Matthew’s shyness, as well as his loving and gentle nature. (RT 3620, 3638-3639, 3650, 3662-3663, 3665, 3685, 3710, 3716, 3768-3769, 3777-3778, 3780, 3785, 3821, 3828-3829, 3835, 3838.) He “always” wanted or needed to be held. (RT 3620, 3639.) Jerry Eaves, who had children ofhis own, described Matthew as “extra-special” and “one ofmy favorites.” (RT 3785-3787.) Matthew hada particular fondness for animals, to which he would becomevery attached and protective. (RT 3615-3616, 3631- 3632, 3769, 3780, 3787.) He wasalso talented artist. (RT 3633-3634, 3651, 3664, 3709.) At the same time, Matthew was unusually passive and withdrawn. None of the witnesses had ever seen or heard ofMatthew behaving violently or ageressively. (RT 3620, 3639, 3651-3652, 3665, 3672-3673, 3685, 3688, 3835.) Indeed, none had even seen him argueorfight with his siblings or talk back to his parents or grandparents. (RT 3672-3673, 3679, 3757-3758, 3770, 3835.) May Underwood had nevereven seen him get angry. (RT 3688.) According to Robert Eaves, who was around Matthew’s age when the Souzaslived with his family, Matthew would not even fight back when other boys bullied him. (RT 3778.) According to Jerry Eaves, he had “never seen kids as polite” as the Souza children. (RT 3786.) Matthew’s former teachers, from elementary school through high 29 school, reported that while he was a good student who never presented any discipline problems, he was also extremely shy or withdrawn, even “lethargic.” (RT 3710, 3714-3716, 3719-3720, 3732, 3734, 3745-3746, 3749-3750, 3819, 3821-3822.) Onthe fourth day ofthe penalty phase deliberations, the jurors inquired into the results ofjury deadlock on the question ofpenalty. (CT 770-775; RT 3933.) Two days later, on the sixth day ofdeliberations, they reached their verdict affixing the penalty at death. (CT 777-778; RT 3940-3943.) 30 ARGUMENT ERRORS UNDERLYING THE GUILTPHASE I. THE JOINDER OF THE SOUZA BROTHERS’ TRIALS VIOLATED MATTHEW SOUZA’SFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS TOA FAIR TRIAL, PROOF BEYOND A REASONABLE DOUBT ON THE TRUTH OF THE SPECIAL CIRCUMSTANCE ALLEGATION, AND A RELIABLE JURY DETERMINATION ON THE ELEMENTS RENDERING HIM DEATH ELIGIBLE. A. Introduction. Giventhe ballistics evidence, it was undisputed that only one actual shooter killed or injured all of the victims with a rifle. Witnesses identified both brothers as being present and armed with guns, but their testimony was sharply conflicting as to which brother was the actual shooter. Asto their guilt ofthe substantive charges, it was concededthat all ofthe principals were equally guilty of the same crimes and hencethe identity ofthe actual shooter wasirrelevant. (CT 694, 696; RT 3290-3291, 3298, 3308-3309, 3312-3313, 3338, 3402, 3404, 3457.) It was not irrelevant, however, to the special circumstanceallegation. The sole special circumstance alleged was under Penal Codesection 190.2, subdivision (a)(3), the so-called “multiple murder” special circumstance. (CT 486.) Underthe statute and as the jurors were instructed, a finding of guilt oftwo murders, at least one ofwhichis first-degree murder, conclusively establishes the truth ofthe special circumstance for the actual killer and renders him eligible for death. (Pen. Code § 190.2, subd. (a)(3); CT 714-715.) Asto the non-killing aider and abettor, however, the special circumstance requires an additional finding that he harbored an intent to kill. (Pen. Code § 190.2, subd. (c); CT 714-715.) During deliberations, the jurors specifically inquired into this requirement and the court 31 reiterated that the aider and abettor must have an intent to kill and such intent exists where “the purpose, plan, or goal, includes killing.” (CT 659-659.1) Hence,as the jurors were informed through the instructions and argumentsofall counsel, once they jurors determined that both brothers were guilty of the underlying and attempted murder charges, the identity of the actual shooter becamecritical to determining death eligibility. (RT 3342-3343, 3345-3346, 3403, 3457; 3470-3474.) The significance of the jurors’ resolution of this issue is plainly demonstrated by the verdicts. The jurors found both brothers equally guilty ofthe charged murders and attempted murders. However, apparently having found that Matthew was the actual shooter, the jury found the special circumstanceto be true only as to him and eventually fixed his punishmentat death. (CT 749.) Apparently concluding that only the actual shooter, and not his accomplices, intendedto kill, and that Michael was the non-shooting aider and abettor, the jurors found the special circumstance allegation not true as to Michael. (RT 3477- 3480.) As the non-shooting accomplice, Michael ultimately was sentenced to a single term of25 years to life in prison, plus four years for use ofa firearm, with the terms on all of the other murder and attempted murder convictions to run concurrently. (Reporter’s Transcript ofMichael Souza’s February 5, 1999 sentencing hearing [“2/5/99 RT”] at p. 5.) Obviously, Matthew’s very life dependedona fair and reliable resolution ofwhether the evidence established beyond a reasonable doubtthat he wasthe actual shooter. With respect to that evidence, it was undisputed that Michael was thefirst gunman through the front door. Although Matthew’s counselfleetingly suggested that there was reasonable doubt he was there at all (RT 3382, 3423), it was undisputed that if he was there, he was the second gunman. (RT 3385-3386, 32 3394-3395.)’? As neither the evidence northe parties suggested that the third gunman wasthe shooter, the question became whetherthe first gunman, Michael, or the second gunman, Matthew,was the actual shooter. The evidence regarding this critical question was breathtakingly close. From the evidence as a whole, it was absolutely clear that the witnesses were simply incorrect regarding critical, fundamental facts underlying the determination of the shooter’s identity. Hillary Leonesio actually saw Michaelfire his gun about three times and shoot Dewayne Amold. (RT 3109-3110, 3139- 3140, 3160-3161.) Lea Coss simultaneously saw a flash and heard a shot from Michael’s position in the living room, while Matthew wasstill standing several feet away. (RT 2811-2812.) Indeed, she testified at the preliminary hearing that she believed that Michael had shot Dewayne Amold. (RT 2809-2810.) Similarly, Raymond Douglas was standing only a few feet from Michael when he heard a shot and saw flash from his position, while Matthew wasstill standing several feet away. (RT 2266, 2362-2366.) Significantly, none ofthe witnesses claimed to have seen the second gunman,later identified as Matthew,fire his weapon or to have seen flashes or heard shots from his position. Indeed, as Matthew’s counsel pointed out, the only people who“identified” Matthew as the shooter were the prosecutor and Michael’s counsel. (RT 3382.) Obviously, this evidence strongly suggested that Michael was the actual shooter. At the same time, Martin Jones and Raymond Douglas testified that Michael was carrying a shotgun. (RT 2043, 2285, 2318.) Giventheballistics evidence, it was undisputedat trial that all of the victims had been shot with rifle and that a shotgun was never even fired. Viewing the testimony as a whole,it is clear that the witnesses were either correct that Michael had fired his weapon but BR The suggestion was fleeting due largely to thetrial court’s denial of counsel’s motion to suppress the suggestive pre-trial identifications ofMatthew as one ofthe gunmen. (CT 536.8-536.12; RT 1808.) 33 incorrect that it was a shotgun, or they were correctthat he carried a shotgun but incorrect that he hadfiredit. Certainly, the closeness ofthe evidence regarding the actual shooter’s identity is starkly illustrated by the fact that the District Attorney’s position prior to trial — from the filing ofthe complaint, through the preliminary hearing, and to the filing ofthe first information — was that Michael wasthe actual shooter. (CT 36-38, 134-135, 480-488, 813-818.) Yet, the prosecutor later changed tack and contendedattrial that Matthew wasthe actual shooter. (RT 1876-1877, 3292- 3293, 3298, 3436-3437, 3444-3445, 3454, 3457.) Hence, while the evidence tended to show that one of the boys wasthe actual shooter, there was a dearth of evidence to provethe identity of either boy as the actual shooter beyond a reasonable doubt. Had they beentried separately, it is highly likely that their juries would have such doubts, convicted both as aiders and abettors, and found — as the jury found in this case — that the aider and abettor did not intendto kill, and therefore found the special circumstance allegation not true as to both boys. In other words,it is highly likely that separate trials would have saved Matthew’s life. Recognizing the very possibility that was eventually realized, Matthew’s counsel moved to sever the boys’ trials on the ground,inter alia, that their defenses to the special circumstanceallegation would be antagonistic and irreconcilable. (CT 536.23-536.35.) He explained that the identity of the actual killer was critical to the special circumstance allegation. (CT 536.33) Based on the evidence, one ofthe brothers had to be the actual killer and each would defend against the special circumstance by implicating the other. (CT 536.33-536.34.) The potential prejudice (which was, in fact, realized) from presenting these irreconcilable defenses included, inter alia, that Michael’s attorneys would act as additional prosecutors, that the jury would choose between the brothers based not on the prosecution’s case but rather on the defendants’ cases, and, because they were brothers, the jurors would likely view them as a pair and be unable to 34 distinguish the evidence offered as to each. (CT 536.34-536.35.) Hence, because “acceptance of one party’s defense will preclude the acquittal of the other” on the capital murder charge, counsel argued that due process mandated severance. (CT 536.365.) Without discussion other that citing People v. Pinholster (1992) 1 Cal.4™ 865, 932, People v. Turner (1984) 37 Cal.3d 302, 312, and “Howard”(sic — Hardy?) for the rule that mere “blameshifting”is insufficient to warrant severance, the court denied the motion. (RT 242-243.) Hence, the boys weretried together and before the samejury. From the beginning through the endoftheir jointtrial, both the prosecutor and Michael’s counsel argued that Matthew, not Michael, was the actual shooter. (RT 1874- 1876-1877, 1882, 1895-1896, 1899-1901, 3292-3293, 3298, 3321, 3334-3336, 3347, 3355-3363, 3366-3370, 3436-3437, 3444-3445, 3454, 3457.) Of course, this strategy proved enormously successful for Michael. Given the mannerin which the case wastried, the jurors’ verdicts reveal more than that they merely had reasonable doubt that Michael was the shooter, which — as a technical matter — wouldstill have left room for reasonable doubt that Matthew wasthe shooter. Rather, the verdicts reveal that they accepted Michael’s defense and wereaffirmatively convinced that he was not the shooter. Having been so convinced, and giventhe state ofthe evidence, they had to conclude that the second gunman, Matthew, was the shooter. In other words, accepting the theory ofboth the prosecutor and Michael effectively precluded any finding that 8 Counsel’s motion wasinitially heard by Judge Golde, but denied solely on the ground that joinder would not implicate People v. Aranda (1965) 63 Cal.2d 518. (RT 15-16.) When the matter was transferred to Judge Hurley, counsel renewed the motion and sought a ruling on the additional groundsraised, including mutually antagonistic defenses. (RT 106.) Furthermore, Judge Hurley granted counsel’s pre-trial motion to “federalize”all trial objections and motions under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. (CT 535.23-535.24; RT 126.) 35 Matthew was notthe shooter and thus effectively precluded his acquittal on the special circumstanceallegation automatically rendering him eligible for death. Asfully set forth below, under well settled federal and California authority, given that the brothers hadirreconcilable defensesto the special circumstance allegation (i.e., the capital murder charge), that both the prosecutor and Michael’s counsel implicated Matthew as the actual shooter, that Michael’s counsel in fact used every opportunity to so implicate Matthew,and that the evidenceactually pointing to Matthew as the actual shooter was weak, the joinderofthe boys’trials violated Matthew’s rights to a fair trial and a reliable jury finding on thetruth of special circumstanceallegation beyond a reasonable doubt, as guaranteedby state law and the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. The judgment must be reversed. B. The Applicable Legal Principles. 1. Standard of review. Penal Code section 1098 provides: When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they mustbe tried jointly, unless the court orders separate trials. In ordering separatetrials, the court in its discretion may order a separatetrial as to one or more defendants, andajoint trial as to the others, or may order any numberofthe defendants to betried at onetrial, and any numberof the others at different trials, or may order a separatetrial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not preventtheir jointtrial. Underthis statute, a decision concerning severance of codefendants’ trials is generally a matter within the trial court’s discretion. (People v. Cummings (1993) 4 Cal.4th 1233, 1286.) The purpose ofthe statute’s preference for joint 36 trials is to prevent repetition ofevidence and save time and expenseto the state as well as to the defendant. (People v. Scott (1944) 24 Cal.2d 774, 778-779.) However, “the pursuit ofjudicial economy and efficiency may neverbe used to deny a defendanthis rightto a fair trial.” (Williams v. Superior Court (1984) 36 Cal.3d 441, 451-452; accord Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 939.) “Severance motionsin capital cases should receive heightened scrutiny for potential prejudice.” (People v. Keenan (1988) 46 Cal.3d 478, 500 [and authorities cited therein].) “Whether denial of a motion to severthetrial of a defendant from that of a codefendant constitutes an abuse of discretion must be decided on the facts as they appear at the time of the hearing on the motion rather than on what subsequently develops.” (People v. Turner, supra, 37 Cal.3d at p. 312.) Importantly, however, even if a motion to sever was properly denied at the time it was made,ifthe effect ofjoinder deprived the defendantofa fair trial or due processof law, reversal is required. (See, e.g., People v. Mendoza (2000) 24 Cal.4™ 130, 162; People v. Arias (1996) 13 Cal.4™ 92, 127; People v. Johnson (1988) 47 Cal.3d 576, 590; People v. Boyde (1988) 46 Cal.3d 212, 232; People v. Turner, supra, 37 Cal.3d 302, 313; People v. Grant (2003) 113 Cal.App.4” 579, 587; see also, e.g., United States v. Ziperstein (7* Cir. 1979) 601 F.2d 281, 286, cert. denied (1980) 444 U.S. 1031) In this regard, “error involving misjoinder ‘affects substantial rights’ and requires reversal. . . [if it] results in actual prejudice becauseit ‘had substantial and injurious effect or influence in determining the jury’s verdict.’” (United States v. Lane (1986) 474 U.S. 438, 449; accord Zafiro v. United States (1993) 506 U.S. 534, 539; People v. Grant, supra, 113 Cal.App.4™ at p. 587.) “In other words, the defendant must demonstrate a reasonable probability that the joinder affected the jury’s verdicts.” (People v. Grant, supra, at p. 587.) 37 2. Mutually antagonistic or irreconcilable defenses. This Court has recognized that conflicting defenses and likely juror confusion may require separatetrials for codefendants. (See, e.g., People v. Hardy (1992) 2 Cal.4™ 86, 167; People v. Massie (1967) 66 Cal.2d 899, 917.) As to the circumstances under which severance is required due to conflicting defenses, the Court has turned to federal authority for guidance. (People v. Hardy, supra, 2 Cal.4" at pp. 168-170.) The essential consideration in determining whether defendants whoare jointly charged shouldbeseparately tried is whether“there is a seriousrisk that a joint trial would compromisea specifictrial right of one ofthe defendants, or preventthe jury from making reliable judgment aboutguilt or innocence.” (Zafiro v. United States, supra, at p. 539, cited in People v. Cummings, supra, 4 Cal.4" at pp. 1286-1287; accord United States v. Tootick (9Cir. 1991) 952 F.2d 1078, 1082 [‘‘The touchstoneofthe court's analysis is the effect ofjoinder on the ability ofthe jury to render a fair and honest verdict”]; United States v. Aulicino (2d Cir. 1995) 44 F.3d 1102, 1116 [if a "joint trial would compromisea trial right of the moving defendant or prevent the jury from makinga reliable judgment about guilt or innocence,” the trial must be severed].) Under federal law, in order to challenge the failure to sever on appeal, the defendant must demonstrate that the effect ofjoinder compromised a specifictrial right, prevented a reliable adjudication of guilt or innocence, or otherwise deprived him ofa fair trial. This showingestablishes both error and prejudice and requires reversal. (See, ¢.g., United States v. Tootick, supra, 952 F.2d at pp. 1082-1083 [“in orderto establish an abuse of discretion, the defendants must demonstrate that clear and manifest prejudice did in fact occur,” such as to deny the defendant“a fair trial;” if he does so, both error and prejudice are established and reversal is required]; accord United States v. Mayfield (9" Cir. 1999) 189 F.3d 895, 906 [where reviewing court finds abuse of discretion in failing to sever trials of codefendants with 38 inconsistent defenses based on “manifest prejudice”that resulted, there is no need for separate harmlesserror analysis]; United States v. Rucker (11" Cir. 1990) 915 F.2d 1511, 1512 [in order to establish abuse ofdiscretion, appellant must demonstrate that he “suffered compelling prejudice” from joinder, which deprived him offair trial]; United States v. Romanello (5% Cir. 1984) 726 F.2d 173, 177 [same].) Thus, similar to the line of California authority recognizing that gross unfairness from joinder requires reversal even ifthe motion to sever was properly denied at the time it was made,this analysis necessarily turns on events that occurredat trial and subsequentto the court’s denial of severance. In light ofthese principles and under both federal and California law, mere inconsistent or blameshifting defenses alone do not alone require severance. (People v. Cummings, supra, 4 Cal.4th at p. 1287; People v. Hardy, supra, 2 Cal.4® at p. 170; People v. Pinholster, supra, 1 Cal.4" at p. 932, People v. Turner, supra, 37 Cal.3d at p. 312, Zafiro v. United States, supra, 506 U.S.at p. 538 [declining to “adopt a bright-line rule” regarding severance based on “conflicting defenses”or to hold that nature of conflicting defenses, without more, causes prejudice]; United States v. Mayfield, supra, 189 F.3d at pp. 899, 903-904; United States v. Tootick, supra, 952 F.2d at p. 1081 [same].) For instance, where more than one participant was involved in the crime, one defendant attempts to absolve himselfand cast blameon the other participants, but another defendant presents an alibi defense, their defenses are merely inconsistent because the jury’s acceptance of one defense will not necessarily preclude acquittal of the other defendant. (See, e.g., People v. Hardy, supra, 2 Cal.4™ at pp. 167-168.) Or, where defendants charged with the same murder admittheir participation but attempt to shift blame to the other for landing the fatal blow, their defenses to the charge ofmurder are merely inconsistent because both are equally guilty of the charged crime under aiding and abetting principles, regardless of whoinflicted the fatal blow. (United States v. Brady (9" Cir. 1978) 579 F.2d 1121.) 39 However, as the Ninth Circuit Court ofAppeals has explained andthis Court has recognized, defenses may prevent a reliable judgmentofguilt or innocence, and therefore require separate trials, when they “‘move beyond the 999merely inconsistent to the antagonistic’” to the point ofbeing “mutually exclusive.” (United States v. Mayfield, supra, 189 F.3d at p. 899, quoting United States v. Tootick, supra, 952 F.2d at p. 1081, cited with approval in United States v. Zafiro, supra, 506 U.S. at pp. 542-543, conc. opn. of Stevens, J.; accord United States v. Sherlock (9" Cir. 1989) 962 F.2d 1349, 1362.) Mutually exclusive defenses exist where ““the core ofthe codefendant's defenseis so irreconcilable with the core ofhis own defense that the acceptance ofthe codefendant's theory by the jury precludes acquittal of the defendant.’” (United States v. Mayfield, supra, at pp. 899-900, quoting United States v. Throckmorton (9th Cir. 1996) 87 F.3d 1069, 1072; accord People v. Hardy, supra, 2 Cal.4” 86, 168 [where “defenses are irreconcilable” or “acceptance of one party’s defense will preclude the acquittal of the other”]; United States v. Tootick, supra, 952 F.2d at p. 1086 [“mutually exclusive defenses are said to exist when acquittal of a codefendant would necessarily call for conviction ofthe other”]; United States v. Rose (1* Cir. 1997) 104 F.3d 1408, 1415, cert. denied 520 U.s. 1258 (1997) [mutually antagonistic defenses exist “ifthe tensions between the defenses are so great that the finder of fact would have to believe one defendantat the expense of another”); United States v. Rucker, supra, 915 F.2d at p. 1512; United States v. Romanello, supra, 726 F.2d at pp. 178-181; United States v. Ziperstein, supra, 601 F.2d at p. 286.) A classic case is when the evidence demonstrates that one ofthe defendants must be guilty, one defendant can only deny his guilt by attributing it to the other, and consequently the jury cannot reasonably believe both defenses. (See, e.g., United States v. Tootick, supra, 952 F.2d at p. 1082; United States v. Rucker, supra, 915 F.2d at p. 1513; United States v. Crawford (5" Cir. 1978) 581 F.2d 489, 490-491.) In assessing the effect ofjoinder in such cases, a reviewing court should be guided by several fundamental principles. First, “[j]oinder is problematic in cases 40 involving mutually antagonistic defenses because it may operate to reduce the burden on the prosecutor.... Joinder may introduce whatis in effect a second prosecutor into a case, by turning each codefendantinto the other's most forceful adversary.” (United States v. Tootick, supra, 952 F.2d at p. 1082, quoted with approval in Zafiro v. United States, supra, 506 U.S. at pp. 543-544, conc. opn. of Stevens J.; accord United States v. Mayfield, supra, 189 F.3d at pp. 899-900; United States v. Sherlock, supra, 962 F.2d at p.1363; United States v. Romanello, supra, 726 F.2d at p. 179.) “[{C]ross examination of the government’s witnesses becomes an opportunity to emphasize the exclusive guilt ofthe other defendant” and “closing argumentsallow a final opening for codefendant’s counselto portray the other defendant” as the perpetrator. (United States v. Tootick, supra, 952 F.2d at p. 1082; accord United States v. Mayfield, supra, at p. 900.) “The existence of this extra prosecutor is particularly troublesome because defense counsel are not alwaysheldto the limitations and standards imposed on the government prosecutor.” (United States v. Tootick, supra, 952 F.2d at p. 1082.) Hence, the manner in which the codefendant conducts his defense may demonstrate prejudice and fundamental unfairness from joinder. (See, e.g., United States v. Mayfield, supra. 189 F.3d at pp. 900-902 [where codefendant’s defense wasthat defendant was perpetrator and his counsel used “every opportunity” to implicate defendant, defenses were antagonistic and joinder wasprejudicial and deprived defendant of fair trial]; accord United States v. Tootick, supra, 952 Fd.2d at pp. 1084; United States v. Romanello, supra, 726 F.2d at pp. 178-181; United States v. Johnson (5" Cir. 1973) 478 F.2d 1129, 1133.) Similarly, the prosecutor’s argumentis an important factor to consider in assessing the effect ofjoinder. (See, e.g., United States v. Tootick, supra, 952 F.2d at p. 1085 [finding reversible error in joinder of trials of codefendants with antagonistic defenses based in part on prosecutor’s closing argument mocking defendants for placing the blame on each other and the logical impossibility of accepting both defenses]; United States v. Sherlock, supra, 962 F.3d at p. 162 [finding reversible error in joinder of defendants with 4] inconsistent defenses based on prosecutor’s prejudicial argumentutilizing evidence admitted against one defendant against them both].) Moreover,joining trials of codefendants with mutually antagonistic defenses may “invite a jury confronted with two defendants, at least one ofwhom is almost certainly guilty, to convict the defendant who appears the more guilty of the two regardless ofwhether the prosecutor has proven guilt beyond a reasonable doubt as to that particular defendant.” (Zafiro v. United States, supra, 506 U.S.at p. 544, conc. opn. of Stevens, J.) This risk decreases the prosecution’s burden of proofandis significant in assessing whetherjoinder affected the defendant’s rights. (Ibid.) Moreover, the inherentrisks in jointtrials are often much greater when the codefendants are related, thus making motions for severance “far more compelling” than for other codefendants. (United States v. Auerbach (8" Cir. 1984) 745 F.2d 1157, 1161; see,also, e.g., United States v. Rucker, supra, 915 F.2d at p. 1512-1513 [reviewing court considered fact that codefendants with inconsistent defenses were related in concludingtrial court committed prejudicial error in denying motion for severance]; Hernandez v. State (Fla. App.1990) 570 So.2d 404, 406.) Amongotherthings, joint trials of related codefendants increase the danger ofjury confusion. (See, e.g., United States v. Sampol (D.C. Cir. 1980) 636 F.2d 621, 647 [conviction reversed for failure to grant severance motion groundedin part on argumentthat jury would confuse evidence admissible against two codefendant brothers, emphasizing that at least one witness misidentified the brothers and "[p]erhaps this misidentification symbolized the inevitable failure of this particular joint trial”].) Further, joining the trials ofcodefendant brothers with irreconcilable defenses aggravates the harm already inherent in one defendant implicating another. (See, e.g., People v. Wilson (Ill. App. Ct. 1987) 515 N.E.2d 812, 819 [recognizing “the devastating effects ofa fraternal accusation" in holding that court erred in refusing to sever trials of codefendant brothers with antagonistic defenses].) Indeed, a jointly tried defendant with a mutually antagonistic defense 42 faces a particularly unenviable Hobson’s choice when his codefendantis his own brother: defend himselfby exploiting the evidence pointing to his brother and thus simultaneously risk convicting a loved one andalienating the jurors, or forgo that defense and risk his own conviction and possible death. (Cf. United Statesv. Sampol, supra, 636 F.2d at p. 650, n. 16 [joint trial of codefendant brothers may “inhibit” presentation of defense because defendant might chooseto forego a beneficial blame shifting defense strategy due to the “prejudice that would have inured to his codefendant and brother’”’].) Finally, the relative weight ofthe evidence against the defendants is an important factor to considerin assessing the harm from joinder. (See, e.g., United States v. Mayfield, supra, 189 F.3d at p. 907 [reversible error in denying motion to severtrials of codefendants with mutually antagonistic defensesin light of conduct of codefendant counsel and fact evidence against defendant was not “overwhelming”].) With these principles in mind, Matthew now turnsto the effect of the joinderofhis trial with that of his codefendantbrother. C. The Joinder Of The Souza Brothers’ Trials Was Erroneous And Deprived Matthew OfHis Rights To A Fair Trial And A Reliable Jury Determination Of His Guilt Or Innocence Of Capital Murder Based On Proof Beyond A Reasonable Doubt As Guaranteed By The Fifth, Sixth, Eighth and Fourteenth Amendments. Atthe outset, it is true that Matthew and Michael’s defensesto the underlying murder charges were merely inconsistent or blameshifting, not mutually antagonistic. While the brothers implicated each other as the actual shooter, their attorneys acknowledgedthat the actual shooter and aider and abettor were equally guilty ofthe same crimes andtheir joint defense was that they were guilty of lesser offenses than first degree murder. (RT 3338, 3402, 3404; see ArgumentII, below.) In other words, the jurors could accept one brother’s 43 defense to the underlying charges without havingto reject the other brother’s defense. However, as discussed in the Introduction and pointed out by trial counsel, oncethe jurors convicted the boys ofat least two murders, they had to further determine whether the “multiple murder” special circumstance allegation had been proved beyond a reasonable doubt. (See § Pen. Code § 190.4.) As further discussed, for the actual shooter, the special circumstance was conclusively established without the need for any additional findings. (Pen. Code § 190.2, subd. (a)(3); see also RT 3470-3474; CT 659, 659.1.) For the aider and abettor, however, the jury had to makean additional finding that he intendedto kill, an element the parties hotly disputed. (Pen. Code § 190.2, subd. (c); see also RT 3470-3474; CT 659, 659.1, 714.) Ofcourse, special circumstances rendering a defendanteligible for the death penalty operate as “’the functional equivalent of an element of a greater offense’.” (Ring v. Arizona (2002) 536 U.S. 584, 609, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 494; see also Sattazahn v. Pennsulvania (2003) 537 U.S. 101, 111 [Put simply,ifthe existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact — no matter how thestate label it — constitutes an element, and must be found by a jury beyond a reasonable doubt”].) As the Ninth Circuit has putit, special circumstances “can only be understood as substantive elements of capital murder as opposed to mere penalty enhancements.” (United Statesv. Waggoner(9" Cir. 2003) 339 F.3d 915, 918, cert. denied (11/29/04) U.S. __, 2004 U.S. Lexis 7766.) Hence, capital defendants have specific trial rights to reliable jury findings on the truth of special circumstanceallegations creating death eligibility beyond a reasonable doubt, as guaranteed by state law and the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. (Ring v. Arizona, supra, at pp. 603-609; Beck v. Alabama (1980) 447 U.S. 625, 637-638 [Eighth Amendmentrequires heightenedreliability of 44 verdicts in capital cases].) It is with respect to the charge of capital murder, then, that the Souza brothers’ defenses were antagonistic and irreconcilable. Onceagain, based on the evidence,either the first gunman — Michael — or the second gunman — identified as Matthew — wasthe actual shooter. Each boy’s defense to the capital murder charge was that he was notthe actual shooter, did not intend to kill, and therefore the special circumstance wasnottrue as to him. (RT 3321, 3338-3342, 3344-3346, 3382, 3385-3386, 3390, 3395, 3402-3403.) Given the evidence, their defenses necessarily required each brother to implicate the other as the actual shooter. Indeed, this is just what they did. (RT 3334-3336, 3347-3348, 3362-3363, 3384-3390, 3392, 3400, 3405, 3406, 3422.) Hence, while the court was correct that mere blame shifting defenses do not mandate severance (RT 242-243, citing People v. Pinholster, supra, 1 Cal.4™ at p. 932, People v. Turner, supra, 37 Cal.3d at p. 312, and “Howard”[sic — Hardy?]), and that this rule would apply to the brothers’ defenses to the underlying murder charges,since the identity ofthe actual shooter was irrelevant to their liability for the crimes, the court was incorrect in applying that rule to the brothers’ defenses to the capital murder charge incorporating the special circumstance. Their defenses to capital murder went beyond mere blameshifting to the irreconcilable because the jury could not accept one brother’s defense without rejecting the other’s. (See, e.g., People v. Hardy, supra, 2 Cal.4™ 86, 168; United States v. Mayfield, supra, 189 F.3d at p. 899-900, United States v. Tootick, supra, 952 F.2d at pp. 1081- 1082, 1086, United States v. Sherlock, supra, 962 F.2d at p. 1362; United States v. Throckmorton, supra, 87 F.3d 1069, 1072; United States v. Rose, supra, 104 F.3d at p. 1415; United States v. Rucker, supra, 915 F.2d at p. 1512; United Statesv. Romanello, supra, 726 F.2d at pp. 178-181; United States v. Ziperstein, supra, 601 F.2d at p. 286.) In other words, once the jurors found both boys guilty of the underlying murder and attempted murder charges, “the core of [Michael’s] defense” to capital murder was “so irreconcilable with the core of [Matthew’s] defense that the acceptance of [Michael’s] theory by the jury preclude[d] 45 [Matthew’s] acquittal” of capital murder. (United States v. Mayfield, supra, at pp. 899-900.) Furthermore, these codefendants with irreconcilable defenses werebrothers with identical last names and similar sounding first names; they were nearly the same age; and they borea striking resemblanceto each other. (See Ex.25, photographs 3 [Matthew] and 5 [Michael]; see also RT 1757, 2238, 2253, 2442- 2443, 2044.) Underthe circumstances, joining their trials carried a substantial dangerthat the jurors would confuse the evidence offered against each brother and thereby placed undue emphasis on the arguments andtactics oftheir counsel rather than on the evidence. The potential for confusion is amply demonstrated by Raymond Douglas’s testimony. Shortly following the shooting, Douglas(like other witnesses) had identified a photograph of Michael from lineupas the first gunman whodidall the talking. (RT 2275-2276.) However,at trial and on direct examination, he identified Matthew as that man. (RT 2260-2263.) Michael’s counsel attempted to clarify the confusion on cross-examination by displaying the photograph he identified as the first gunman and having him identify the man in thatphotograph as Michael. (RT 2320-2321.) However, upon cross-examination by Matthew’s counsel, Douglas again positively identified Matthew as the first gunman. (RT 2335-23376.) In anothereffort to clarify the matter, Matthew’s counsel again had Douglas review the photographhe had identified and asked him if it depicted Matthew or Michael. (RT 2338.) Douglas simply responded, “they look different now.” (RT 2338.) It was only after Matthew’s counsel pressed him, asking him, “isn’t the photograph you havein your hand. . . a photograph ofthis man I’m standing behind . . . Michael Souza,” that Douglas finally realized that he had misidentified Matthew, corrected his previous testimony, and clarified that he had identified a photograph ofMichaelas the first gunman. (RT 2338-2240.) “Perhaps this misidentification symbolized the inevitable failure of this particular jointtrial.” (United States v. Sampol, supra, 636 F.2d at p. 647 [conviction 46 reversed for failure to severtrial of codefendant brothers carrying risk ofjury confusion].) Given the mannerin which the case was tried, it is no surprise that the potential for confusion and inconsistent defenses inured to Michael’s substantial benefit, resulting in the jury’s acceptance ofMichael’s defense that Matthew was the actual killer despite the weaknessin the evidenceto provethatcritical fact beyond a reasonable doubt. While both boys defended against the capital murder charge by implicating the other as the actual shooter, unlike Michael, Matthew faced two prosecutors. (See, e.g., Zafiro v. United States, supra, 506 U.S.at pp. 543-544, conc. opn. of Stevens J.; United States v. Mayfield, supra, 189 F.3dat _ pp. 899-900; United States v. Tootick, supra, 952 F.2d at p. 1082, United Statesv. Romanello, supra, 726 F.2d at p. 179.) In other words, both the deputy district attorney and Michael’strial theories were that Matthew was the actual shooter. (RT 1874-1876-1877, 1882, 1895-1896, 1899-1901, 3292-3293, 3298, 3321, 3334-3336, 3347, 3355-3363, 3366-3370, 3436-3437, 3444-3445, 3454, 3457.) Following the prosecutor’s opening statement in which he identified Matthew as the actual shooter, Michael’s counsel commenced his own opening statement by agreeing that the prosecutor was “correct” (RT 1882) and that “Matthew” was the shooter (RT 1900-1901). Indeed, as the trial progressed, Michael’s counsel proved to be a far more formidable prosecutor than the deputy district attorney himself. While the deputy district attorney’s trial theory was that Matthew was the actual shooter, he also contended that the identity of the shooter was irrelevant since both the shooter and non-shooting aider and abettor intendedto kill and thus both were equally liable for the underlying murders andthe special circumstance allegation. (RT 3290-3291, 3298, 3308-3309, 3312-3313, 3457.) Hence, he did not particularly press the conflicting evidence regarding the actual shooter’s identity. 47 Michael’s counsel, however, took every opportunity to implicate Matthew as the actual shooter. As noted in the above Introduction, the evidencein this regard was sharply conflicting. Three witnesses directly or indirectly testified that Michaelfired his weapon; two directly or indirectly testified that Michael actually shot Dewayne Arnold. (RT 2266, 2362-2366, 2809-2812, 3109-3110, 3139-3140, 3160-3161.) Giventhe ballistics evidence, if this testimony was correct, then Michael had to be the actual killer of all ofthe victims. On the other hand, two witnesses described Michael’s gun as a shotgun. (RT 2043, 2285, 2318.) Again, given the ballistics and other evidence,it this testimony wascorrect, then the second gunman, Matthew,had to be the actual shooter. Hence, Michael’s defense hinged on persuading the jury that he carried the shotgun. (See, e.g., RT 3334- 3336.) In this regard, although only two witnesses had described Michael’s gun as a shotgun,in his examination ofall ofthe witnesses, Michael’s counsel never missed an opportunity to describe his client as “the man with the shotgun.” (RT 2301, 2322, 2326-2328, 2330, 2331, 2392-2398, 2454, 2458, 2508, 2779, 2789- 2791, 2794, 2801) Further solidifying in the minds ofthe jurors that Michael was carrying the shotgun, his counsel repeatedly questioned the expert witnesses at length as to whether the victims had been shot with a shotgun and whether a shotgun had been fired in the apartment, a non-issue sinceall ofthe parties concededthat a shotgun had never been fired. (RT 1981-1985, 2021-2022, 2462, 2590-2591, 2884-2889, 2905-2910, 2986.) This tactic of disputing at length the undisputed served to confuse the issues and enforce the idea that Michael carried the shotgun. Furthermore, Lea Coss specifically testified on direct examination that she could nottell what kind ofgun Michael or Matthew had been carrying. (RT 2734- 2736.) She could only describe Michael’s gun as large, about 22 inches to two feet long. (RT 2734-2735.) She similarly could describe Matthew’s gun only as “another large gun,” agreeing that it was “about as long as the gun that” Michael 48 carried. (RT 2736.) As discussed in the Introduction, Cossalso testified that she simultaneously saw flash and heard a shot from Michael’sposition in the living room, while Matthew wasstill standing several feet away, and in fact had believed that Michael shot Dewayne Arnold. (RT 2809-2812.) | Michael’s counsel cross-examined Cossfirst and underminedthis testimony by confusing her and the jurors regarding her description of Michael’s weapon. He openedhis cross-examination by having Coss read her police statementto herself, but not aloud. (RT 2752-2754.) That statement was marked Defendant A’s Exhibit C and lodged with the court, but wasnot admittedattrial. (RT 2753; CT 737; CT 855.) According to that statement, Coss had described Michael’s gun as “a rifle or a shotgun” and explained that she did not “know the difference.” (Deft. A’s Ex. C; CT 855.) Despite this statement and despite her direct examination testimony that she could not identify the kind ofgun Michael carried, Michael’s counsel purported to “review” her direct examination testimony and in so doing, stated: “Okay. Andat that point, he’s [Michael’s] got a shotgun in his hand.” (RT 2779.) Coss replied, “yes, what it looked like to me at the time.” (RT 2779.) Michael’s counsel responded, “It looked to you like a shotgun at the time?” and she replied, “yes.” (RT 2779) Thereafter, throughouthis examination of Coss, Michael’s counsel repeatedly referred to Michael as “the man with the shotgun.” (RT 2789-2794, 2800-2801.) On his own cross-examination of Coss, Matthew’s counsel immediately attemptedto clarify the matter. (RT 2805.) He asked her if she knew the difference between a rifle and a shotgun and shereplied that she did not. (RT 2805-2806.) She also told police that she did not know the difference and could only say that Michael wascarrying a rifle or a shotgun. (RT 2806.) Finally, she agreedthat hertrial testimony was the same: she could not tell ifMichael’s gun wasa shotgun ora rifle because she did not knowthe difference. (RT 2806.) On redirect, the prosecutor accepted that she could nottell what kind of gun Michael carried. (RT 2830.) 49 However, whatever gains Matthew’s counsel may have made in clarifying the evidence were lost by Michael’s counsel summation, in which he turned Coss’s testimony on its head. Michael’s counsel acknowledged that she had initially told police that Michael wascarryinga rifle or a shotgun, but argued that hertrial testimony was consistent in describing his gun as a shotgun (RT 3359- 3362) and Matthew’s gun asa rifle (RT 3366). Indeed, exploiting the potential for confusion that otherwise inheredin this joint trial, Michael’s counsel went so far as to falsely argue that Cosswas oneof“at least four” witnesses whoidentified Michael’s gun as a shotgun, whenin truth only two witnesses had done so. (RT 3336;see, e.g., United States v. Mayfield, supra. 189 F.3d at pp. 900-902 [finding reversible error from joinderoftrials of codefendants with antagonistic defense where codefendant’s counsel used “every opportunity” to implicate defendant]; United States v. Tootick, supra, 952 Fd.2d at pp. 1082-1084 [finding reversible error fromjoinder oftrials of codefendants with antagonistic defenses based in large part on conduct of codefendant’s counsel, which included repeatedly and directly accusing the defendant and misstating the evidence in argument].) Moreover, it cannot be overemphasized that these codefendants with mutually antagonistic defenses were brothers. Again, based on the evidence,it was impossible for either boy to admit him complicity but denyhis role as the actual killer without at least implicitly implicating his brother. Had the boys’ trials been severed and different juries decided their fate, the success of one brother’s defense would not inevitably have resulted in the other brother’s conviction of capital murderand possible death. However, by joining their trials, Matthew was forced to choose between: 1) saving his own life and risking his brother’s by relying on the substantial evidence pointing to Michaelas the actual killer; and 2) risking his own life and saving his brother’s by ignoring that evidence and admitting his role as the actual killer. Choosing the former option not only risked the life of a loved one; but because the jurors knew that it risked thelife of a loved one; butit also carried an acute dangerofalienating the jurors. True, this risk cut 50 both ways and, without more, could be said to apply equally to both brothers. However, having forced this grotesque choice upon the boys, the prosecutor used Matthew’s decision to choose the former option, and exploited its potential for prejudice, against Matthew and Matthew alone. In his guilt phase summation, the prosecutor argued: {T]here’s no honor among thieves and these two brothers pointing the finger at each other both saying through their lawyers that the other person did the shooting -- you know it’s bad enough,it is horrible that Matthew Souza did these shootings. But to do them then, through his defense, blame his brother as being the one who actually pulled the trigger, I think that gives you the insight into whattype ofperson, number one, Matthew Souzais, and number two, what type ofperson might be involvedin these killings. (RT 3437.) Indeed, the prosecutor continued this theme in the penalty phase, emphatically arguing that Matthew’s attempt to “blame [his] brother” revealed the absence ofeven “a shred ofremorse” and a young man undeservingofthe jury’s mercy. (RT 3889, 3926-3928; see, e.g., United States v. Tootick, supra, 952 F.2d at p. 1085 [finding reversible error in joinderoftrials of codefendants with antagonistic defenses based in part on prosecutor’s closing argument mocking defendants for placing the blame on each other and the logical impossibility of accepting both defenses].) The prosecutor’s remarks not only exploited and compoundedtherisk ofprejudice otherwise inherentin this jointtrial; they were plainly inconsistent with basic notions of fundamental fairness, which prohibit the state from taking undue advantageofa situation it has forced or created. (See, e.g., Payne v. Arkansas (1958) 356 U.S. 560, 567 [coerced confessions inadmissible for any purposein part becauseit would be fundamentally unfair for state to force defendant to confess and then be able to use forced statement against him attrial]; People v. Daggett (1990) 225 Cal.App.3d 751, 758 [improperforstate to fault defendant for not presenting evidence that was excluded uponstate’s own motion]; 51 People v. Varona (1983) 143 Cal.App.3d 566, 570 [same]; United States v. Ebens (6" Cir. 1986) 800 F.2d 1422, 1440-1441 [prosecutor took unfair advantage of court’s ruling restricting admission ofevidence by inviting jury to draw adverse inference from its absence]; People v. Wilkes (1955) 44 Cal.2d 679, 687-88 [when state confers on witness privilege against testifying that defendant has no powerto override,it is improper for prosecutor to invite jury to draw adverse inferences from absence ofwitness’s testimony]; People v. Frohner (1976) 65 Cal.App.3d 94, 109 [same; such conductis “grossly improper”].) Finally, as discussed in the Introduction, while either the first gunman, Michael, or the second gunman,identified as Matthew, had to be the actual shooter, the evidence to prove beyonda reasonable doubt that one wasa better candidate than the other was extraordinarily close. (See, e.g., United States v. Mayfield, supra, 189 F.3d at p. 907 [finding reversible error from joinderin part because the evidence pointing to defendantas the perpetratorrather than his codefendant was not overwhelming].) Indeed, the closeness ofthe evidenceis underscored by the procedural history ofthe case. The complaintoriginally alleged that Michael usedthe rifle and personally inflicted great bodily injury on all of the victims in the commission ofthe crimes. (CT 813-818.) It alleged that Matthewuseda pistol and did not allege that he personally inflicted great bodily injury. (CT 813-818.) At the prelimimary hearing, which was based largely on the same evidence that was presentedattrial, the District Attorney proceeded on the theory that Michael wasthe actual shooter. (CT 36-38, 134-135, 480-483.) Consistent with that theory, the information originally alleged that Matthew used the shotgun and Michaelusedthe rifle. (CT 484-488.) Ultimately, the prosecutor avoidedthe conflicts in the evidence by successfully moving to amend the information to delete references to specific firearms in the firearm use allegations. (CT 502.1, 503-508.) By the timeoftrial, the prosecutor inexplicably shifted gears and contended that Matthew wasthe actual shooter. (RT 1876-1877, 3292- 3293, 3298, 3436-3437, 3444-3445, 3454, 3457.) At the sametime, in apparent 52 recognition ofthe conflicts in the evidence, he repeatedly emphasizedthat ultimately the jury did not have to determine the identity of the actual shooter because both brothers intended to kill and therefore the special circumstance allegation wastrue as to both ofthem. (RT 3290-3291, 3298, 3308-3309, 3312- 3313.) Ifthe evidence wasso closely balancedthat the District Attorney himself had such patent doubts regarding the identity ofthe actual shooter, then it is highly likely that the jurors would have had similar doubts in separatetrials and therefore convicted each boyas an aider and abettor. Given this jury’s conclusion that the prosecution had failed to prove beyond a reasonable doubt that the non-shooting aider and abettor intendedto kill, it is highly likely that separate juries would have reached the same conclusion. However, because the evidence overwhelmingly showedthat one ofthem wasthe actual shooter and their irreconcilable defenses hinged uponpointing the finger at each other, their joint trial invited the jury “to convict the defendant who appear[ed] the more guilty ofthe two regardless of whether the prosecutor ha[d] proven guilt beyond a reasonable doubt.” (Zafiro v. United States, supra, 506 U.S.at p. 544, conc. opn. of Stevens, J.) Matthew appeared to be the “more guilty ofthe two” not due to the strength ofthe evidence, but rather due to the tandem accusations ofMichael and the prosecution andtheir exploitation ofthe risk ofprejudice presented by joiningtheir trials. For all of these reasons, the joint trial seriously compromised Matthew’srights to a reliable jury verdict on the capital murder charge beyond a reasonable doubtandto a fair trial, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments. Therefore, pursuantto the authorities discussed in part B, above,the true finding on the special circumstance allegation mustbe set aside, which in turn requires that the penalty judgmentbe reversed. 53 il. THE TRIAL COURT’S REFUSAL TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF VOLUNTARY MANSLAUGHTER AND ATTEMPTED VOLUNTARY MANSLAUGHTERIN A REASONABLE HEAT OF PASSION VIOLATED MATTHEW’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, TRIAL BY JURY, AND TO PRESENT A DEFENSE AS GUARANTEED BY THE FIFTH,SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS. A. Introduction. Asdiscussed in the preceding argument, Matthew’s trial counsel briefly argued that there was reasonable doubt that Matthew was even present duringthe shooting. (RT 3382, 3423.) In the alternative, each brother contended that he was not the actual shooter, an issue critical to the “multiple murder” special circumstanceallegation. (RT 3321, 3342-3346, 3382, 3384-3392, 3395, 3403; Pen. Code § 190.2, subd. (c).) At the same time, counsel for both brothers expressly conceded to the jurors that regardless ofthe identity of the actual shooter, he and his accomplices were equally guilty ofwhatever substantive crimes the shooter committed. (RT 3338, 3402, 3404.) Hence,as all of the parties recognized, the critical question with respect to the boys’ guilt ofthe substantive charges was the degreeoftheir guilt. (RT 3320, 3324-3331, 3400-3404, 3418- 3422, 3457.) Asdiscussed in detail below, there was compelling evidence that the shooting wasthe direct result ofthe boys’ having been provokedto state of intense emotion or passion. Based uponthis evidence, counsel requested instructions on the lesser-included offenses ofvoluntary manslaughter and attempted voluntary manslaughter in a reasonable heat ofpassion. (CT 587-591; see Pen. Code § 192, subd. (a).) Citing People v. Spurlin (1984) 156 Cal.App.3d 119, the prosecutor argued that reasonable heat ofpassion requires actual 54 provocation from the victim killed. (CT 640; RT 2947.) Thetrial court agreed. (RT 2947-2948.) Therefore, the court refused the instructionsasto all counts other than that relating to Regina Watchman,the only victim who had actually assaulted the boys’ mother. (RT 2947-2948.) Matthew’s counsel acquiesced in the court’s understanding ofthe law andits application to this case to limit the instruction to the Watchman murder charge, but expressed notactical basis for doing so. (RT 2947.) Counsel also requested instructions on unpremeditated second-degree murder and on the relevance ofprovocation evidence to the element of premeditation. (RT 2954-2957, 2959-2962, 3184-3185.) The court granted the request. The court agreed that provocation which is otherwise inadequate to reduce murder to manslaughter is nevertheless relevant to whether the perpetrator premeditated and deliberated and therefore agreedto instruct the jury on the relevance of such evidence with CALJIC No.8.73, without limitation to any particular count. (RT 2954-2958, 3172, 3185, 3235.)"4 In light of these rulings, counsel subsequently withdrew his request for, and objected to, instructing the jury on voluntary manslaughterin the heat ofpassion as to the Watchman murder charge. (RT 3230-3231.) Counsel explainedthat, since the court ruled that it would limit the instruction to that charge, he feared that the jury would become confused aboutthe application ofthe evidence of 14 CALIJIC No. 8.73, as modified, provided as follows: If the evidence establishes that there was provocation which played a part in inducing an unlawfulkilling ofa human being, you should consider the provocation for such bearing as it may have on whether a defendant killed with or without premeditation and deliberation. (CT 712; RT 3268.) Asdiscussed in ArgumentIII, below, when considered in conjunction with the prosecutor’s repeated misstatements ofthe law,this instruction was inadequate to explain thecritical relationship between provocation, heat ofpassion, and premeditation in any case. 55 provocationas it related to the element ofpremeditation in the charges involving the other victims. (RT 3230-3231.) In other words, he feared that it would undermine the only viable defense left by the court’s ruling. Consequently, no voluntary manslaughter instructions were provided, leaving the jury with only two optionsas to the degree of guilt on the substantive charges: premeditated murder ofthe first-degree and second-degree murder. (CT 704-706; RT 3260-3264.) Asfully explained below,the court erred in refusing to instruct the jury on voluntary manslaughter and attempted voluntary manslaughterin the heat of passion as to all ofthe charges. California law has never imposeda rigid requirementthat the victim killed must actually engage in provocation in order to demonstrate a reasonable heat ofpassion. Certainly, there is no such requirement under Penal Code section 192. As further explained below, substantial evidence supported findings that the shooting was committed in the heat ofpassion and in response to events which would provoke a reasonable personinto acting passionately againstall ofthe victims. The court’s refusal to provide the instructions violated not only state law, but also Matthew’s federal constitutional rights to due process, to present a defense, andto trial by jury. Because the state cannotcarry its burden ofproving the errors harmless beyond a reasonable doubt, reversalis required. B. Where Supported By Substantial Evidence, State Law And The Federal Constitution Mandate Instructions On Voluntary Manslaughter And Attempted Voluntary Manslaughter In The Heat Of Passion As Lesser-Included Offenses To Charges Of Murder And Attempted Murder. Matthew was charged with premeditated first-degree murder and attempted murder with premeditation. (CT 484-487; RT 3262-3263, 3265-3267; Pen. Code §§ 187, 189, 664.) Both crimes require proofbeyond a reasonable doubt of express malice. Reasonable heat ofpassion negates malice (both express and implied) as a matter of law. (People v. Lasko (2000) 23 Cal.4" 101, 109; People 56 v. Breverman (1998) 19 Cal.4™ 142, 149.) Hence, voluntary manslaughter and attempted voluntary manslaughter in the heat ofpassion are lesser-included offenses to charges ofmurder and attempted murder. (Ibid.; People v. Barton (1995) 12 Cal.4™ 186, 196; People v. Williams (1988) 199 Cal.App.3d 469, 475; People v. Van Ronk (1985) 171 Cal.App.3d 818, 824-825.) It is well settled that trial courts have a broad sua sponte duty to instruct “*“on the general principles of law relevantto the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understandingofthe case.”[Citation.]’” (People v. Wickersham (1982) 32 Cal.3d 307, 323, overruled on another ground in People v. Barton, supra, at pp. 200-201; accord People v. Marks (1988) 45 Cal.3d 1335, 1345.) This instructional obligation includes the duty to instruct on all lesser offenses necessarily included withina charged offense that are supported by the evidence. (See, e.g., People v. Breverman,supra, 19 Cal.4" at p. 149; People v. Barton, supra, 12 Cal.4® at p. 196.) As this Court has explained, “this rule demands that when the evidence suggests that the defendant may not be guilty of the charged offense, but only of somelesser included offense, the jury must be allowedto ‘considerthe full range ofpossible verdicts — limited not by the strategy, ignorance, or mistake ofthe parties,’ so as to ‘ensure that the verdict is no harsher or morelenient than the evidence merits.’” (People v. Breverman, supra, at p. 159, quoting from People v. Wickersham,supra, at p. 324.) Hence, the court has a sua sponte duty to instruct on all lesser-included offenses, including “all theories of a lesser included offense which find substantial support in the evidence,” even overthe defendant’s objection absent an expressedtactical 15 For ease ofreference, the following discussion regarding murderandits necessarily included offense ofvoluntary manslaughter applies equally to attempted murder and its necessarily includedoffense of attempted voluntary 57 purpose for the objection. (Id. at p. 162, emphasis supplied; accord People v. Lee (1999) 20 Cal.4® 47, 60; People v. Barton, supra, 12 Cal.4" 196.) The evidencetriggers these instructional obligations wheneverit is “substantial enough to merit consideration’ by the jury.” (People v. Breverman, supra, 19 Cal.4” at p. 162.) “Substantial evidence in this context is evidence from which a jury composed ofreasonable persons could concludethat the lesser offense, but not the greater, was committed”or “evidence that a reasonable jury could find persuasive.” (Ibid., internal quotations, citations, ellipses, and parenthesis excluded; accord People v. Flannel (1979) 25 Cal.3d 668, 684-685.) “The testimony of a single witness, including the defendant, can constitute substantial evidence requiring thetrial court to instruct” on a lesser-included offense. (People v. Lewis (2001) 25 Cal.4" 610, 646.) manslaughter. (See, e.g., People v. Williams, supra, 199 Cal.App.3dat p. 475; People v. Van Ronk, supra, 171 Cal.App.3d at pp. 824-825.) 58 Importantly, “[d]oubts as to the sufficiency ofthe evidence to warrant instructions should be resolved infavor ofthe accused." (People v. Ratliff (1986) 41 Cal.3d 675, 694, emphasis supplied; accord People v. Flannel, supra, 25 Cal.3d. at p. 685; People v. Wilson (1967) 66 Cal.2d 749, 763.) Furthermore, the due process andjury trial guarantees ofthe Fifth, Sixth and Fourteenth Amendments to the United States Constitution and ArticleI, section 15 ofthe California Constitution require the prosecution in a criminal jury trial to prove every element of a crime beyond a reasonable doubt and demand complete and accurate instructions thereon. (See, e.g., United States v. Gaudin (1995) 515 U.S. 506, 509-511, 522-523; Sullivan v. Louisiana (1993) 508 U.S. 275; Osborne v. Ohio (1990) 495 U.S. 103, 123-124; Carella v. California (1989) 491 U.S. 263, 265; Mullaney v. Wilbur (1975) 421 U.S. 684, 698.) In this regard, voluntary manslaughterin the heat ofpassion has a “uniquelegal function” under California law. (People v. Rios (2000) 23 Cal.4™ 450, 459.) It is unlike other lesser-included offenses in that heat ofpassion operates to legally negate an element ofthe greater offense — malice — despite the existence of a mentalstate that otherwise amounts to malice as a matter of fact (i.e., an intent to kill or intent to do an act dangerous to human life with conscious disregard of its danger). (Ibid.; People v. Lasko, supra, 23 Cal.4” at p. 109; People v. Blakeley (2000) 23 Cal.4® 82, 96, dis. opn. ofMosk, J. [mental state for voluntary manslaughter “is the state of mind that amounts infact to malice aforethought, but is deemed in law not to because ofprovocation” and heat ofpassion]; People v. Brubaker (1959) 53 Cal.2d 37, 44 [same]; People v. Breverman,supra, 19 Cal.4® at p. 188, dis. opn. of Kennard,J..) Thus, “ifthe issue ofheat ofpassion . . . is ‘properly presented’ in a murder case (Mullaney v. Wilbur (1975) 421 U.S. 684, 704), the People must prove beyonda reasonable doubtthat these circumstances were lacking in order to establish the murder element ofmalice.” (People v. Rios, supra, 23 Cal.4™ 450, 462; see also Mullaney v. Wilbur, supra, 421 U.S. at pp. 698-699 [“the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the 59 absenceofthe heat ofpassion upon sudden provocation whenthe issue is properly presented in a homicide case”].) Put another way, as Justice Kennard has explained, wherethere is evidenceofheat ofpassion, “the complete definition of malice is the intent to kill or the intent to do a dangerous act with conscious disregard of its dangerplus the absence of... heat ofpassion...” (People v. Breverman, supra,at p. 189, dis. opn. ofKennard, J, emphasis supplied.) Consequently, where supported by the evidence, the federal constitutional due process and jury trial guarantees to instructions on every elementofthe charge mandate complete and accurate instructions on voluntary manslaughterin the heat ofpassion. (Id. at pp. 189-191; see also Mullaney v. Wilbur, supra, at pp. 698- 699; Osborne v. Ohio, supra, 495 U.S. 103, 122-124 and n. 17; see also Everette v. Roth (7" Cir. 1994) 37 F.3d 257, 261 [omissionoflesser-included voluntary manslaughter instructions violates federal due process where it results in “fundamental miscarriage ofjustice”]; Vujosevic v. Rafferty (3d Cir. 1988) 844 F.2d 1023 [failure to instruct on lesser-included offense supported by the evidence violates federal due process].)'° Moreover, where instructions on factually supported lesser-included offense are actually requested by the defense and refused, the error also violates defendant’s Fifth, Sixth and Fourteenth Amendmentrights to due process and to 16 The majority in People v. Breverman,supra, held that, as a general matter, instructional error in the lesser-included offense context does not does not implicate the federal constitution in a non-capital case. (People v. Breverman supra, 19 Cal.4” at pp. 169-170, 178.) However,finding that the appellantin that case hadnot raised the specific federal constitutional violation addressed in Justice Kennard’s dissenting opinion discussed above, the majority in Breverman specifically declined to resolve that issue. (People v. Breverman, supra, 19 Cal.4" at p. 170, n. 19; see also People v. Lasko, supra, 23 Cal.4" at p. 113 [Justice Kennard, writing for the majority, distinguishing federal constitutional violation she identified in Breverman on groundthat jury in Lasko, unlike jury in Breverman, was providedinstruction on lesser-included offense ofvoluntary manslaughter].) “It is axiomatic that cases are not authority for propositionsnot 60 present a full and meaningful defense. (See, e.g., Conde v. Henry (9® Cir. 1999) 198 F.3d 734, 734-739-740 [trial court’s refusal to instruct on factually supported lesser-included offense violated Sixth and Fourteenth Amendmentrights to instructions on defense theory of case]; Bradley v. Duncan (9™ Cir. 2002) 315 F.3d 1091, 1098-1099 [refusal to instruct on entrapment defense violated defendant’s right to due process], cert. denied 540 U.S. 963 (2003); United States v. Sayetsitty (9" Cir. considered.” (People v. Gilbert (1969) 1 Cal.3d 475, 482, n. 7; accord People v. Superior Court (Zamudio) (2000) 23 Cal.4” 183, 198.) 61 1997) 107 F.3d 1405, 1414 [“a defendant has a constitutional right to have the jury consider defenses permitted under applicable law to negate an elementofthe offense”]; Bashor v. Riley (9Cir. 1984) 730 F.2d 1228, 1240 [same].) Finally, the death penalty is a different kind ofpunishmentfrom any other. (See, e.g., Woodson v. North Carolina (1976) 428 U.S. 280, 305; Gardner v. Florida (1977) 430 U.S. 349, 357.) In light ofthis qualitative difference, the Supreme Court has repeatedly recognized the “heightened'need for reliability in the determination that death is the appropriate punishmentin a specific case.’” (Caldwell v. Mississippi (1985) 472 U.S. 320, 340; accord Lockett v. Ohio (1978) 438 U.S. 586, 604 ["the qualitative difference between death and other penalties calls for a greater degree ofreliability when the death sentence is imposed"].) Consequently, in capital cases, federal due process and the Eighth Amendment also guarantee the rightto instructions on lesser-included offenses supported by the evidence. (Beck v. Alabama, supra, 447 U.S. at pp. 637-638; Cordova v. Lynaugh (5th Cir. 1988) 838 F.2d 764, cert. denied 525 U.S. 1131 (1999);United States v. Unruh (9th Cir. 1987) 855 F.2d 1363; Vicars v. Ricketts (9th Cir. 1986) 798 F.2d 369.) 1. The generallegal principles applicable to, and evidence supporting instruction on, voluntary manslaughterin a reasonable heat of passion. Penal Code section 192, subdivision (a) provides that a killing committed without malice and “upon a sudden quarrel or heat ofpassion”is voluntary manslaughter. Heat ofpassion operates to negate malice ifthe actor’s “reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause ‘an ordinary person of average disposition . . . to act rashly, without due deliberation and reflection, and from this passion rather than from judgment.’” (People v. Breverman, supra, 19 Cal.4" at p. 163; accord People v. Lasko, supra, 23 Cal.4” at pp. 108-111.) Thus, heat ofpassion manslaughter has 62 both subjective and objective components: 1) the defendant mustactually, subjectively have killed in the heat of a reason-obscuring passion; and 2) the heat ofpassion must be “reasonable,” meaning that a reasonable person would also be provokedto a state ofpassion under the circumstances. (People v. Gutierrez (2002) 28 Cal.4" 1083, 1044; People v. Steele (2002) 27 Cal.4® 1230, 1252: People v. Wickersham, supra, 32 Cal.3d at pp. 326-327.) Importantly,it is a question of fact for the jury to resolve whether both prongs ofthe test have been satisfied. (See, e.g., People v. Valentine (1946) 28 Cal.2d 121, 139.) Asto the subjective component, the defendant mustin fact have acted undera heat ofpassion. (People v. Breverman,supra, 19 Cal.4" at p. 163.) “The passion aroused neednot be anger or rage, but can be any other“violent, intense, high-wrought, or enthusiastic emotion’ [Citation], other than revenge. [Citation].” (Ibid.; see, e.g., People v. Barton, supra, 12 Cal.4™ at p. 202 [evidencethat defendant confronted victim after an “upset[ting] traffic accident” between victim and defendant’s daughter and killing committed in midst ofheated argument held sufficient]; People v. Brooks (1986) 185 Cal.App.3d 687, 694 [evidencethat defendant was “very upset” and “extremely upset” sufficient]; People v. Logan (1917) 175 Cal. 45, 49 [“heat ofpassion may result from terror as well as anger or jealousy”].) In assessing his mental state at the time of a charged crime,“a defendant is entitled to have the jury take into consideration all the elements in the case which might be expected to operate on his mind.” (People v. Smith (1907) 151 Cal. 619, 628; accord People v. Minifie (1996) 13 Cal.4™ 1055, 1064; People v. Bridgehouse (1946) 47 Cal.2d 406, 410.) Like any other mentalstate, the subjective componentofheat ofpassion may be shown through circumstantial evidence. (See People v. Barton, supra, 12 Cal.4" at p. 202 [jury free to reject defendant’s direct testimonythat killing was accidental and to infer from circumstantial evidence thatkilling intentional and committed in a reasonable heatofpassion]; People v. Bridgehouse, supra, 47 Cal.2d at p. 409 [killing preceded by “provocative” conduct which began with 63 wife’s revelation ofinfidelity and culminated in defendant’s unexpected encounter ofwife’s paramour several monthslater; although defendanttestified that he could only recall encountering paramour and nothing else that precededkilling, evidence that he was “white” and shaking”before killing, exhausted, and series of provocative events itself sufficient circumstantial evidence to establish heat of passion as a matter of law]; People v. Brooks, supra, 185 Cal.App.3d at p. 696 [heat ofpassion can be inferred from circumstantial evidence and without defendant’s testimony; indeed such circumstantial evidence may be even stronger than defendant’s direct, yet ’self-serving,” testimony]; see also People v. Mickey (1991) 54 Cal.3d 612 [error to fail to give diminished capacity instructions based upon circumstantial evidence of such]; People v. Boyd (1985) 38 Cal.3d 762 {same]; People v. Geiger (1985) 35 Cal.3d 510, overruled on another ground in People v. Birks (1998) 19 Cal.4® 108, 136 [error in refusing instruction on lesser offense based upon circumstantial evidence that defendant did not harbor intent for greater offense]; People v. Viramontes (2001) 93 Cal.App.4™ 1256, 1262 [subjective fear element of self defense and imperfect self-defense may be proved circumstantially]; People v. DeLeon (1992) 10 Cal.App.4™ 815, 824 [same]; People v. Hoskins (1978 Mich. Sup. Ct.) 267 N.W.2d 417, 419 [defendant may provestate ofmind circumstantially; any contrary rule violates constitutional privilege against self-incrimination]; cf. People v. Iniguez (1994) 7 Cal.4" 847, 857 [elementof“’fear’ may be inferred from the circumstances despite even superficially contrary testimony ofthe” person alleged to be in fear]; People v. Renteria (1964) 61 Cal.2d 497, 499.) Indeed, evidence ofprovocationitself is circumstantial evidence from which the jury can infer that the defendant killed in an intense emotion, or a heat ofpassion. (People v. Wickersham, supra, 32 Cal.3d at pp. 323, 329; People v. Bridgehouse, supra, 47 Cal.2d at pp. 409-414; cf. People v. Viramontes, supra, at p. 1263 [evidence that defendant wasshotat alone sufficient circumstantial evidence for jury to find actual and reasonable fear elementofself-defense claim]; People v. Brown (1989) 212 Cal.App.3d 1409, 64 1418 disapproved on another ground in People v. Hayes (1991) 52 Cal.3d 577, 628 [threat alone sufficient circumstantial evidence to prove victim’s fear element ofrobbery].) Asto the objective component, “no specific type ofprovocation[is] required undersection 192 ....” (People v. Berry (1976) 18 Cal.3d 509, 515; accord People v. Lasko, supra, 23 Cal.4™ at p. 108; People v. Breverman, supra, 19 Cal.4" at pp. 162-163; People v. Valentine, supra, at pp. 141-144.) Provocation “may be physical or verbal, but the conduct must be sufficiently provocative thatit would cause an ordinary person of average disposition to act rashly or without due deliberation or reflection.” (People v. Lee, supra, 20 Cal.4" at p. 59.) In this regard,it is well settled that “the killing or harming of defendant’srelative”is sufficient for a jury to find that a reasonable man would be provokedto a state of passion. (2 Wharton’s Criminal Law (15th ed. 1994) § 163, p. 63; accord People v. Barton, supra, 12 Cal.4® at p. 202; People v. Brooks, supra, 185 Cal.App.3d at pp. 693-694 [and casescited therein]; LaFave, Criminal Law (4" ed. 2003), § 15.2(b) at pp. 777, 782 [hereinafter “LaFave”].) Furthermore, a reasonable person may be provokedinto passion by a series of events which occur overa period of time. (People v. Wharton (1991) 53 Cal.3d 522, 571-572; People v. Berry, supra, 18 Cal.3d at pp. 513-516; People v. Borchers (1958) 50 Cal.2d 321, 328-329; People v. Bridgehouse, supra, 47 Cal.2d at p. 414, overruled in part on another groundin People v. Blakeley, supra, 23 Cal.4” at p. 89.) While each event might be insufficient alone to provoke passion in the reasonable person,their cumulative effect may be sufficient. (See,e.g.., People v. Wharton, supra, at pp. 571-572 [court erred in refusing to instruct that legally adequate provocation can occur over period oftime based on defendant’s theory that “no single action on the part of the victim provokedthe fatal blow, but that the (final) incident was merely the culmination ofhis pent-up frustration and anger emanating”from series ofprior incidents]; People v. Berry, supra, 18 Cal.3d at pp. 514-516 [while wife’s screams in response to husband’s expression ofintent 65 to kill her would not amount to adequate provocation in a vacuum, when considered in conjunction with her prior provocative acts over two-weekperiod, jurors could reasonably findit did]; see also Lafave, supra, § 15.2(d) at p. 787 and n. 96 [citing Berry for proposition that “an event which, standing alone, would not suffice to act as such a trigger may nonethelesssuffice to rekindle an earlier passion”]; Perkins & Boyce, Criminal Law (3d ed. 1982) at pp. 97 [“many factors, possibly not sufficient independently to constitute adequate provocation, may join together and besufficientto raise an issue of provocation”].) Similarly, passion whichis actually and reasonably aroused by one provocative event can smolder, during which time the defendant’s reason returns, only to be suddenly, violently, and reasonably re-ignited by a later provocative event. (See, e.g., People v. Berry, supra, 18 Cal.3d at pp. 513-516; Peoplev. Bridgehouse, supra, 47 Cal.2dat pp. 408-414; see also People v. Wharton, supra, 53 Cal.3d at p. 571; People v. Spurlin, supra, 156 Cal.App.3d at p. 126 [heat ofpassion manslaughterinstruction properly provided where wife’s most recent act “can be said to have ignited” the defendant’s “long smoldering resentment ofher sexual conduct bringing about an intense, high-wrought reaction leading to her death”]; Perkins & Boyce, supra, at p. 100 [passion may be suddenly revived by circumstancesthat bring the provocation vividly to mind”]; LaFave, supra, § 15.2(d)at p. 787.) “(If sufficient time has elapsed between the provocation and the fatal blow for passion to subside andreasonto return,the killing is not voluntary manslaughter.” (People v. Wickersham, supra, 32 Cal.3d at p. 327.) However, “(no particular period oftime need elapse between a passion-producing quarrel and the subsequentkilling . . . “ (People v. Edgmon (1968) 267 Cal.App.2d 759, 765.) Rather, “what constitutes a reasonable cooling time in a particular case dependsuponthe nature of the provocation and the circumstances surroundingits occurrence -- a matter to be determined by the jury as a question of fact." (LaFave, supra, § 15.2(d) at pp. 786-787; see, e.g., People v. Berry, supra, 18 Cal.3d at p. 515; People v. Edgmon,supra, 276 Cal.App.2d at pp. 762-766 [jury 66 could reasonably find killing in heat ofpassion where defendant and father argued, resulting in physical fight; defendant left the scene, went to his own home and retrieved a gun, and returned 15 to 30 minuteslater, at which point he shothis bleeding and incapacitated father five times]; People v. Brooks, supra, 185 Cal.App.3d at p. 695 [jury could reasonably find killing in heat ofpassion where two hours had elapsed between provocative revelation and killing]; People v. Birreuta (1984) 162 Cal.App.3d 454, 462, n. 6 [jury reasonably foundkillings in sudden quarrel or heat ofpassion where defendant argued with wife and a second woman in the latter’s home,struggled with the second woman,then wentto his own home,returned to the woman’s house, broke in, and shot his wife six times and the second woman four times]; see also Perkins & Boyce, supra, at p. 100.) “Not infrequently, there is a considerable time interval between the victim’s act of provocation and the defendant’s fatal conduct — time enough for passion to subside. In the meantime, however, some event occurs which rekindles the defendant’s passion. Ifthis new occurrenceis suchasto trigger the passion of a reasonable man, the cooling-offperiod should start with the new occurrence ... .” (LaFave, supra, §15.2(d) at p. 787 and n. 96, citing People v. Berry, supra, 18 Cal.3d 509; accord Perkins & Boyce, supra, at p. 100 [where series of events are provocative, cooling time should be measured “from ‘the last straw’”].) The Court’s decision in People v. Berry, supra, well illustrates many ofthese principles. In People v. Berry, supra, 18 Cal.3d 509, the defendant’s wife revealed to him that she had engagedin an affair with another man and that she wanted a divorce in order to be with her paramour. (Id. at pp. 512-513.) The defendant became enraged and chokedher. (Id. at p. 513.) Several days later, the defendant and his wife “engaged in heavy petting,” after which she informed him that she would not make love with him because she was saving herself for her paramour. (Ibid.) Asthe defendant prepared to leave, his wife screamed at him. He respondedby choking her into unconsciousness. (Ibid.) The wife was taken to 67 hospital and the defendantleft the family home for three days. (People v. Berry, supra, at p. 514.) Whenhe returned onthe third day, his wife was not home. He waited there for 20 hours, until his wife returned home.(Id. at pp. 514, 516.) Upon encountering the defendant, his wife asked him ifhe wasthere to kill her. Hefirst replied, “yes,” but eventually said that he was there to talk to her. His wife began screaming. (Id. at p. 514.) Inafit ofrage, he strangled her to death. (Id. at pp. 514, 516.) The jury convicted the defendantoffirst-degree murder. (Id. at p. 511.) He appealed, arguing, interalia, that the trial court committed prejudicial errorin failing to instruct the jury on voluntary manslaughterin the heat ofpassion. (Id. at p. 512.) The Court agreed. (People v. Berry, supra, at pp. 513-516.) In so doing, the Court rejected on two grounds the Attorney General’s argument that the 20- hour period between the defendant’s return homeandhis wife’s killing amounted to sufficient “cooling” time to negate heat ofpassion as a matter of law. First, the Court emphasized the extremenature ofthe provocation — a two-week period of provocatory conduct, whichhadresulted in intermittent outbreaksofrage. Second, the Court emphasized that, contrary to the Attorney General’sposition, “provocation”did, in fact, immediately precede the killing. Given the nature of the past provocation, the Court reasoned, its final culmination was achieved when the defendant’s wife “began screaming” immediately before he killed her. (Id. at p. 515; accord People v. Borchers, supra, 50 Cal.2d at pp. 528-529 [series of provocative acts, including paramour’s admissionsofinfidelity, taunts, and threats of suicide amounted to adequate provocation]; People v. Bridgehouse, supra, 47 Cal.3d at pp. 408-414 [series ofprovocative acts, beginning with wife’s revelation of infidelity and ending in defendant’s unexpected encounter ofher paramour several monthslater sufficient as a matter of law to establish killing committed in reasonable heat ofpassion].) . 2. “Provocation” does not necessarily have to come from the victim killed so long as an act or event would provoke a 68 reasonable person into a heatof passion directed at the victim. Here,the critical issue underlying thetrial court’s refusal to provide voluntary manslaughter instructions as to any charge other than that relating to Regina Watchman was whetherthe provocation required under Penal Code section 192 must necessarily come from the victim killed. Determining the correctness of the court’s ruling requires an examination ofthe history of the heat ofpassion doctrine. a. The commonlaw,its initial adoption in California, and its eventual repeal. California’s heat ofpassion doctrine has its roots in the common law. (See, e.g., People v. Valentine, supra, 28 Cal.2d at pp. 136-144.) Similar to the modern rule, at common law,the defendant must actually have killed in a heat ofpassion and upon adequate provocation. (See, e.g., Regina v. Welsh (1868) 11 Cox Crim. C. 336, 338; Mullaney v. Wilbur, supra, 461 U.S.at p. 693 [recounting developmentofheat ofpassion doctrine].) However, unlike the modern rule, the commonlawstrictly limited or “pigeon-holed”the categories of adequate provocative conduct. (Brown v. United States (D.C. App. Ct. 1990) 584 A.2d 537, 540; see also, e.g., Regina v. Mawgridge (Q.B. 1707) 84 Eng. Rep. 1107, 1114-1115; LaFave, supra, § 15.2(b) at pp. 777-778; Perkins & Boyce, supra, at pp. 86-87.) Forinstance, “provocative words [were] not ... adequate provocation, [no matter how] abusive, aggravating, contemptuous,false, grievous, indecent, insulting, opprobrious, provoking, or scurrilous they [might] be.” (Perkins & Boyce, supra, at p. 93; Mawgridge, supra, at pp. 1114-1115.) Similarly, the commonlaw actually required the defendant to observe or see the provocative act; hearsay or informational reports ofprovocative conduct were insufficient. (See LaFave, supra, § 15.2(b) at pp. 780-781.) 69 With respect to the source of the provocation, as a general rule, the victim had to be the provoker; or one reasonably believed to be the provoker; or among a group committing the provocation, or one killed by accident while the defendant was intending to kill one ofthe above categories ofpersons. (See, e.g., People v. Spurlin, supra, 156 Cal.Ap.3d at pp. 126-127 [andcasescited therein]; R. v. Scriva (1951) Vict. L. R. 298, 301; Howell v. State (Alask. Ct. App. 1996) 917 P.2d 1202, 1209 [even understatute explicitly requiring that victim be provoker, intended to adopt traditional commonlaw doctrine, defendant’s reasonable but mistaken belief that victim was provokersuffices, just as it did at commonlaw]; 18 Pa. C.S. § 2503 and Commonwealth v. Bell (PA 1986) 516 A.2d 1172, 1176 [Pennsylvania statute, which codifies the commonlaw,explicitly requires “provocation by the individual killed or another whom the actor endeavorsto kill, but he negligently or accidentally causes the death of the individual killed”]; State v. Michael (W.Va. 1914) 82 S.E. 611, 614, 621 [if defendant believed victim, man standing near provoker, was acting in concert with provoker, it was only manslaughter]; but see Regina v. Davies ( 1975) Q.B. 691, 1 AILE.R. 890 [observing that it was not clear even at commonlaw that provocation waslimited to that from victim].) Clearly, these principles were grounded in other common law doctrinesoftransferred intent and mistake of fact. (See, e.g., People v. Levitt (1984) 156 Cal.App.3d 500, 507-509 [undertransferred intent doctrine,“just as one’s criminal intent follows the correspondingactto its unintended consequences,” so too does one’s lack of intent follow the act to its unintended consequences;hence, ifbystander accidentally killed in commission ofvoluntary manslaughterofintended victim, accidental killing would be no more than manslaughter]; People v. Bland (2002) 28 Cal.4" 313, 320 [transferred intent is commonlaw doctrine]; People v. Vogel (1956) 46 Cal.2d 798, 805 [reasonable mistake of fact common law doctrine]; Pen. Code § 26, subd.(4).) 70 Section 23 of California’s Crimes and Punishment Act of 1850 followed the commonlaw bystrictly limiting the categories of conduct that could amountto adequate provocation. It provided that: In cases of voluntary manslaughter there must be a serious and highly-provoking injury inflicted upon the personkilling, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing. (See People v. Valentine, supra, 28 Cal.2d at pp. 138-139 [section 23 of Crimes and Punishment Acts of 1850 codified common law rules on heat ofpassion and provocation].) However, in 1872, the Legislature repealed Section 23 of the Crimes and Punishment Act of 1850 by enacting Penal Code section 192. Section 192 providesin relevant part as follows: Manslaughteris the unlawful killing ofa human being without malice. It is ofthree kinds: (a) Voluntary — upon a sudden quarrelor heat ofpassion. ... Section 192 omits any language defining or limiting the conduct which can provokea heat ofpassion. Hence, as the Court explained nearly 50 years ago, in interpreting section 192 in this regard: Weare not boundto considerthe principle written into the repealed Crimes and Punishment Act of 1850 (§ 23) as beingstill the law of this state merely because such principle was recognized in the common law. ... A code section is presumedto be a continuation of the commonlaw only whenit and the common law are substantially the same. Section 23 ofthe Crimes and Punishment Act of 1850 wassubstantially the same as the commonlaw onthe subject but section 192 ofthe Penal Code, which supersededit, it not substantially the same. It is obviously substantially different.. . {T]he fact that the common law limitation on the types of circumstances which could be regarded as furnishing adequate 71 provocation to reduce a homicide to manslaughter is not a proper basis for holding thatit is still the law. On the contrary such fact, in light ofthe repeal of the statute which incorporated it, together with enactment of a new law on the same subject with the important limitation deleted, strongly suggests that the Legislature intended a moreliberal rule. (People v. Valentine, supra, 28 Cal.2d at pp. 141- 143.) Because section 192 omits the language qualifying or limiting adequate “provocation”to particular categories of injury or conduct, it modified the common law to broadenor “liberalize” the standard for adequate provocation. (People v. Valentine, supra, 28 Cal.2d at pp. 139-143; accord People v. Logan, supra, 175 Cal. at p. 48.) Ofcourse, on its face, section 192 does not explicitly require any “provocation.” Nevertheless, voluntary manslaughter under section 192, subdivision (a) does require that the heat ofpassion be reasonable underan objective, reasonable person standard. (People v. Valentine, supra, 28 Cal.2d at pp. 136-144; People v. Logan, supra, 175 Cal. at p. 48.) In other words, there must be substantial evidence that a reasonable person would be “provoked”into a heat ofpassion underlike circumstances. (Ibid.; see also People v. Steele, supra, 27 Cal.4" at p. 1252.) Thus, “provocation” — understood as a shorthandreference to this reasonable person requirement — is still necessary under section 192. (See People v. Valentine, supra, 28 Cal.2d at pp. 136-144; People v. Logan, supra, 175 Cal. at p. 48; accord People v. Guitierrez, supra, 28 Cal.4" at p. 1142; People v. Steele, supra, 8 Cal.4"™ at p. 1252; People v. Wickersham, supra, 32 Cal.3d at p. 326.) At bottom, unlike the rigid categories ofprovocative conduct recognized at common law, the reasonable person standardis the pivot around which the “provocation” requirement turns under section 192. (See People v. Valentine, supra, 28 Cal.2d at pp. 136-144 [overruling a series of its prior decisions interpreting section 192 to be a continuation ofthe commonlaw andits limitations on adequate provocation]; People v. Logan, supra, 175 Cal. at pp. 48-49; see also 72 Perkins & Boyce, supra, at p. 98 [“any effort to classify provocative acts... would be to substitute the early view in place ofmodern law”]; Simpson v. United States (D.C. App. Ct. 1993) 632 A.2d 374, 377 [observing that victim as provoker rule is “ancient tradition,” based upon commonlaw, and not part ofmodern rule based upon reasonable person standard].) People v. Logan, supra, was one ofthe earliest Supreme Court decisions to directly consider the scope ofprovocation as measured by the reasonable person standard incorporatedin section 192. In so doing, it adopted the standard set forth in Maher v. People (Mich Sup. Court 1862) 10 Mich. 212, which has been credited as the first United States decision to adopt and apply the reasonable person standard to the requirementofprovocation. (People v. Logan,supra, 175 Cal. at p. 49; see, e.g., Taylor, L., Comment: Provoked Reason In Men and Women:Heat of Passion Manslaughter and Imperfect Self-Defense (1986) 33 U.C.L.A.L. Rev. 1679, 1694.) As the Court in Logan explained, “the fundamentalofthe inquiry is whetheror not the defendant’s reason was,at the timeofhis act, so disturbed or obscured by some passion — not necessarily fear and never, of course, the passion for revenge — to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than judgment.” (People v. Logan, supra, 175 Cal.at p. 49, citing Maher, supra.) In considering what set of circumstancescan satisfy this standard, the Maher Court observed “the almostinfinite variety of facts presented by the various casesas they arise [citation omitted],” and concludedthat “[t]he law can not with justice assume, by the light ofpast decisions to catalogueall the various facts and combinations of facts which shall be held to constitute reasonable or adequate provocation.” (Maherv. People, supra, at p. 222-223.) Hence, provocation may be any set ofcircumstances that would naturally arouse passion in and dominate the reason of an ordinary person and which, in the jury's view, did so with regard to the defendant in the case at hand. (Id. at pp. 220-221.) 73 California adopted this standard and continues to apply it today. (People v. Valentine, supra, 28 Cal.2d at pp. 136-144; People v. Logan, supra, 175 Cal. at pp. 48-49.) Hence,as this Court has consistently recognized, “no specific type of provocation[is] required under section 192 . . ..” (People v. Berry, supra, 18 Cal.3d at p. 515; accord People v. Lasko, supra, 23 Cal.4" at p. 108; People v. Breverman, supra, 19 Cal.4" at pp. 162-163; People v. Valentine, supra, 28 Cal.2d at pp. 141-144.) Forinstance, although wordsalone wereinsufficient to amount to adequate provocation under the commonlaw and former section 23 ofthe Crimes and Punishment Act of 1850, there is no such limitation undersection 192. (People v. Valentine, supra, at pp. 41-42.)Ifwords are sufficient to provoke a reason-obscuring passion in a reasonable person, then they are adequate “provocation.” (Ibid.) Similarly, although information communicated to the defendant was insufficient provocation at commonlaw,it is sufficient under section 192 if it would provokepassion in a reasonable person. (See,¢.g., People v. Bridgehouse, supra, 47 Cal.4™ at pp. 408-414 [wife’s revelation ofaffair]; People v. Brooks, 185Cal. App.3d at pp. 693-694 [revelation that defendant’s brother was killed and defendant’s beliefthat it was victim whokilled him].) Significantly, unlike repealed section 23 under the former Crimes and Punishment Act of 1850, which required provocation from the “personkilled,” and unlike statutes in other jurisdictions which have adopted the common law, section 192 does not explicitly impose any requirement that the provocation come from the “person killed.” (Compare, e.g., A.S. 11.41.1 15(f)(2) [Alaska statute explicitly requires “provocation by the intended victim”]; C. R.S. 18-3-103, repealed and reenacted as 18-3-103(3)(b) [Coloradostatute explicitly requires “a serious and highly provoking actofthe intended victim”]; 18 Pa. C.S. § 2503 [Pennsylvania statute, which codifies the commonlaw, requires “provocation by the individual killed or another whom the actor endeavorsto kill, but he negligently or accidentally causes the death ofthe individual killed”]; Tx. Pen. Code § 19.02 [Texas statute requires “provocation by the individualkilled or 74 another acting with the person killed”] and former Tx. Pen. Code § 19.04 [former Texas statute required “provocation by the individual killed”].) Even under section 23, which arguably adopted the common law’s general victim-as-provoker tule and its exceptions, the mitigating effect ofheat ofpassion wouldstill be available ifthe victim was one reasonably believed to have provoked, one aiding in the provocation, or one accidentally killed in an assault on any ofthese persons. (See, e.g., R.v. Scriva, supra, Vict.L. R. 298; People v. Spurlin, supra, 156 Cal.Ap.3d at pp. 126-127 [and cases cited therein]; Howell v. State, supra, 917 P.2d 1202, 1209 [even understatute explicitly requiring that victim be provoker, which was intended to adopt traditional common law doctrine, defendant’s reasonable, even if mistaken, beliefthat victim was provokersuffices, as it did at common law]; Commonwealth v. Bell, supra, 516 A.2d at p.1176 [Pennsylvania statute adopted commonlaw andrequires “provocation by the individual killed or another whom the actor endeavorsto kill, but he negligently or accidentally causes the death ofthe individual killed”]; Simpson v. United States, supra, 632 A.2d at p. 383, con. opn. [even under “victim-as-provoker”rule, mitigation available where provocation comes from one “associated with” the victim]; see also People v. Bland, supra, 28 Cal.4" at p. 320 [California follows commonlaw doctrine of transferred intent]; Pen. Code § 26 [mistake of fact]; People v. Tufunga (2001) 21 Cal.4" 935, 948 [mistake of fact may negate element of charged crime even if defendantstill guilty of some other crime].) However, given both the omission of any language requiring provocation from the victim in section 192 and the history ofthestatute, it follows that although these commonlaw categories ofprovocation wouldsatisfy the reasonable person requirement ofsection 192, “adequate provocation”is not limited to those categories. Once again,the critical question is whether the act or event would “provoke” a reasonable person into a state ofpassion directed toward the victim. In applying the reasonable persontest, the focus is not on what actually occurred, but rather on how a reasonable person would perceive a 75 particular event and whether it would provoke in him a reason-obscuring passion. (See, e.g., People v. Logan, supra, 175 Cal. at p. 49 [provocation adequate if defendant reasonably, even if mistakenly, believes, victim engaged in provocative conduct]; People v. Brooks, 185 Cal.App.3d at pp. 693-695 [reasonable heat of passion available where information communicated defendant to reasonably, even if mistakenly, believe victim had killed his brother]; People v. Barton, supra, 12 Cal.4" at p. 202 [evidence supported reasonable heatofpassion instructions where, inter alia, jury could reasonably conclude that although victim was unarmed, defendant, “his judgment clouded by anger,” believed victim armed]; LaFave, supra, § 15.2(b) at p. 783 and § 15.2(h)at p. 788 [heat ofpassion mitigation available in case ofreasonable but mistaken belief]; Perkins & Boyce, supra, at p. 102 [same]; see also People v. Minifie, supra, 13 Cal.4" at p. 1068 (“reasonableness is judged by how the situation appeared to the defendant”].) Consistent with the principle that provocation is measured only by the objectively reasonable persontest and not by any particular categories, in 1946 the Court implicitly recognized that a reasonable person can be provoked to passion directed against the victim where the defendant reasonably associates or connects the victim with a third party’s passion-provoking conduct. (Peoplev. Bridgehouse, supra, 47 Cal.2d 406, overruled in part on another ground in People v. Blakeley, supra, 23 Cal.4" at p. 89.) In that case, the defendant’s wife revealed to him that she had been having an affair with another man for over a year. (Id. at p. 407.) Sometimelater, the defendant discovered, among otherthings, clothing belonging to his wife’s paramour in the closets of his home andthathis wife had used a family credit card to purchase a gift for him. (Id. at p. 411.) Several months after his wife’s revelation, the defendant movedout ofthe family home, filed for divorce and sought custody oftheir children. (Id. at p. 408.) At his wife’s request, the defendant met with her at their homeseveral days later. She told him that she would fight the divorce and wouldkill him ifhe tried to take their children away from her. (Ibid.) The next morning, the defendant, who was 76 armed, went to the home of his mother-in-law to collect some of his son’s clothing. (1d. at p. 409.) Uponarriving at his mother-in-law’s house, the defendant unexpectedly encountered his wife’s paramour, who wasreading on the porch. (Peoplev. Bridgehouse, supra, 47 Cal.2d at p. 409.) According to his mother-in-law, the defendant was white and shaking. She wentinto the kitchen to get him a glass of water. When she returned, the defendant was in the act of shooting the paramour. (ibid.) The defendant himselfcould only vaguely recall confronting the paramour, but not the details ofthe shooting or what immediately precededit. (Id. at pp. 409-411.) He was convicted of second-degree murder. (Id. at p. 407.) Although it was the defendant’s wife who was the primary provocateur, not the victim, and although there was no evidencethat the victim actually engaged in any outward act ofprovocation immediately before the defendant shot him, the Court reversed. Focusing not on the source of each provocative event, but rather on the defendant’s impassioned state ofmind and whetherthe series of events would have provoked a reasonable person’s passion against the victim, the Court held that “as a matter oflaw . . . under the circumstances here presented there was adequate provocation to provoke in the reasonable man such a heat ofpassion as would render an ordinary man of average disposition likely to act rashly or without due deliberation and reflection.” (People v. Bridgehouse, supra, 47 Cal.2d at p. 414.) Consequently, the Court reduced the crime from second-degree murder to voluntary manslaughter. (Ibid.; compare Regina v. Davies, supra, [1975] Q.B. 691, 1 AIL E.R. 890 [conduct ofwife’s paramour would be irrelevant under victim- as-provoker rule; however, under rule in which provocation is measured only by reasonable person test, conduct ofboth paramour and wife could be considered in assessing whether defendant killed wife in reasonable heat of passion].) Thus, consistent with the settled rule that “no specific type ofprovocation is required” under section 192, Bridgehouse standsfor the principle that “provocation” under 77 thatstatute is limited by nothing morethan the reasonable man requirement.” Thus, application ofthe heat ofpassion doctrine to a given set of facts should be a clear and straightforward exercise. Unfortunately, these clear waters have been muddied and the source ofthe pollution is a 1984 appellate court decision, which turned the clock back to the commonlaw tendency to categorize the conduct which amounts to adequate provocation. b. The appellate court’s decision in People v. Spurlin and the cases purportingto follow it. In People v. Spurlin, supra, 156 Cal.App.3d 119, the appellate court was asked to address whether the subjectively impassionedkilling of a victim whom M Significantly, the evolution of the doctrine in other jurisdictions, which have also modified the common law and enactedstatutes similar to section 192, is in accord. For instance, in 1957, the English modified and broadened the common law defense by statute. (Homicide Act of 1957, section 3; see also Phillipsv. Queen (1968) 2 A.C. 130, 137; D.P.P. v. Camplin (1978) 67 Crim. App. 14, 19.) Section 3 provides: Where on a charge ofmurder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done andsaid according to the effect which, in their opinion,it would have on a reasonable man. This provision, similar to section 192, adopts the reasonable person standard; therefore, even assuming the common law required the provocation come from the victim, there is no such requirement under section 3. (Regina v. Davies, supra, Q.B. 691,1 AIL E.R. 890; see also, e.g., Brown v. United States (D.C. App.Ct. 1990) 584 A.2d 537, 543 [under D.C. modern statute, provocation” required to negate malice to the extent that the act or event would provoke passion in the objectively reasonable person andis not “pigeon-holed”to any particular categories, as it was at common law].) 78 the defendant knew to be innocent could be reduced to voluntary manslaughter. Although the negative answer to this question was readily apparent by a simple and straightforward application ofthe reasonable person standard, since no reasonable person would intentionally kill a known innocent, the appellate court instead framed the issue as whether “provocation must be caused by the victim.” (Id. at p. 125.) In Spurlin, there was evidence that the defendant was reasonably provoked into passion during an argument with his wife over their respective acts of infidelity. After killing his wife in an impassionedstate, he walked to his sleeping son’s bedroom. Although he knew that his young son was completely innocent, he deliberately killed him. Thetrial court provided instructions on voluntary manslaughterin the heat ofpassion with respect to the killing ofthe defendant’s wife, but not as to the killing of his son. On appeal from his conviction for the murder of his son, the defendant argued, inter alia, that the trial court erred in failing to instruct on voluntary manslaughterin the heat ofpassion on the theory that the passion reasonably engendered by his wife applied to mitigate the killing of his son. (People v. Spurlin, supra, 156 Cal-App.3d at pp. 122-123.) Asnoted above, the appellate court framed the issue presented as whether “provocation must be caused by the victim.” (People v. Spurlin, supra, 156 Cal.App.3d at p. 125.) So framed, the court recognized that nothing in section 192 explicitly requires that provocation come from the victim. However, reasoning that “statutory voluntary manslaughter derives from commonlaw principles (citations),” the court turned to the commonlaw in orderto answerthe question. (People v. Spurlin, supra, at p. 126.) From that examination, the court concluded that commonlaw principles imposed a generalrule that the provocation must ordinarily come from the victim. (Id. at p. 126.) The court further observed that the same commonlaw principles imposing the general rule also recognized exceptions to the rule where(as discussed in the preceding section): 1) the victim is accidentally killed by the defendant acting in the heat ofpassion and in response 79 to a third party’s provocation,as in a faulty aim situation; 2) the victim is killed in the heat ofpassion and in a reasonablebelief, although mistaken, that the victim engaged in provocation; and 3) where the victim “was present aiding and abetting the person causing the provocation.” (Id. at pp. 126-127,citing State v. Fowler (1978 Iowa Sup. Ct.) 268 N.W.2d 220,224; Tripp v. State (1977 Md. App.Ct.) 374 A.2d 384, 389; State v. Russo (1910 Del.) 77 A. 743; State v. Yanz (1901 Conn.) 50 A. 37; Shufflin v. People (1875 N.Y.) 62 N.Y. 229, and 40 C.J.S., Homicide, § 53; see also State v. Michael, supra, 82 S.E. at p. 614 [if defendant believed victim, man standing near provoker, was acting in concert with provoker, it was only manslaughter]; Howell v. State, supra, 917 P.2d 1202, 1209 [even understatute explicitly requiring that victim be provoker, and thus adopting traditional common law doctrine, defendant’s reasonable, even if mistaken, belief that victim was provokersuffices, as it did at common law]; Bostick v. United States (D.C. App.Ct. 1992) 605 A.2d 916, 919-920 and n.14 [defendant and victim involvedin fistfight; third party intervened and shot at defendant; in returning fire at third party, defendant shot and killed victim; held: evidence sufficient to find that defendant was reasonably provokedto heat ofpassion by acts of third party andthus sufficient to warrant instruction on voluntary manslaughter in heat ofpassion]; LaFave, supra, §15(b) at pp. 783, §15.2(h)at p. 788 and n. 106; Perkins & Boyce, supra, at p. 102.) Concludingthat the facts did notfall within any ofthese “exceptions”.to the commonlaw victim-as-provoker “rule,” the appellate court affirmed the murder conviction as to the defendant’s son. (People v. Spurlin, supra, at p. 129.) Appellant has no quarrel with Spurlin’s holding that the evidence was insufficient to warrant instructions on voluntary manslaughterin the heat of passion as to the intentionalkilling ofthe defendant’s sleeping son, a victim the defendant knew was innocent. His quarrel is with how the court reached this holding. As this Court has explicitly held, provocation under section 192 is broader than the common law definition, and thereforeit is inappropriate to 80 narrowly interpret the “provocation” requirement under section 192 according to the limited categories recognized at common law. (People v. Valentine, supra, 46 Cal.2d at pp. 141-143.) Thus, while the Spurlin court’s examination ofthe common law may have been an appropriate place at which to begin its analysis, it wasentirely inappropriate place at which to end it. The appropriate analysis should have turned not on identifying and applying an artificial “rule”andits “exceptions,” no matter how enticing their easy application. Rather, consistent with the history of section 192 and the heat of passion doctrinein this state, it should have turned on a simple andstraightforward application ofthe reasonable person test. Once again, applyingthattest, it is abundantly clear that no reasonable person would ever be so provoked as to intentionally kill someone he knowsto be completely innocent. (See,e.g., LaFave, supra, §15(g) at p. 789.) Hence, as a matter of law, such a killing is not committed upon “adequate provocation,” or stated more precisely, is not committed in a reasonable heat ofpassion. Unfortunately, since Spurlin, several published decisions have simply cited that case without independent analysis (or have cited cases which themselves cited Spurlin without independent analysis) in fleeting and unconsidered recognition of a general “rule,” subject to limited exceptions, that provocation must ordinarily comefrom the victim. (In re ThomasC. (1986) 183 Cal-App.3d 786, 798 [citing Spurlin in support of general “rule”]; In re Cordero (1988) 46 Cal.3d 161, 191 and n.4, conc. opn. ofMosk,J. [citing Spurlin and ThomasC.]; People v. Bobo (1990) 229 Cal.App.3d 1417, 1443 [citing Spurlin]; People v. Lee, supra, 20 Cal.4" atp. 59 [citing ThomasC., supra, in support of generalrule, but also recognizing exception where defendant reasonably, but mistakenly, believed victim was provoker]; People v. Steele, supra, 27 Cal.4" at p. 1253 [citing ThomasC.]; People v. Lujan (2001) 92 Cal.App.4” 1389, 1411 [citing Lee, Thomas C., and Spurlin, supra, in support of general rule and reasonable belief exception]; People . Kanawyer(2003) 113 Cal.App.4” 1233, 1247 [citing Lee and Thomas C.) 81 Perhaps even more alarming, considering the numberoftrials that do not result in published appellate decisions addressing the issue, the Comment to CALJIC No. 8.40, the standard voluntary manslaughterinstruction, states: “Provocation can only serve to reduce murder to manslaughter whenthe victim actually initiated the provocation.” Spurlin is the only authority the CALJIC Committee cites for this proposition. Upon closer examination, however, while the cases following Spurlinhave spoken in terms of such a general “rule,” they are more properly understood as applying the reasonable person standard to a given set of facts. Thus, as in Spurlin, “a reasonable person” would never be so provokedasto intentionally harm or kill a victim whom he knowsto be innocent. Perhaps even more obviously, the reasonable person test does not turn on the defendant’s subjective mental state and characteristics and hence the defendant’s own subjective characteristics do not amount to objectively reasonable heat ofpassion or provocation. (See, e.g., In re Cordero, supra, 46 Cal.3d at pp. 190-191, conc. opn. ofMosk,J. [“exceptional subjective conditions, such as intoxication or mental depression, by definition will not be experienced by the ordinarily reasonable man”; In re Thomas C., supra, 183 Cal.App.3d at p. 798 [defendant’s subjective, depressed mental state did not amount to adequate provocation under reasonable person standard]; People v. Bobo, supra, 229 Cal.App.3d at p. 1443 [defendant’s subjective mental disease which causedherto believe that she had to kill her children in order to save them “from unspeakable acts at the hands of others” inadequate provocation under reasonable person standard]; People v. Lee, supra, 20 Cal.4" at p. 60 [defendant’s intoxication and emotionalinstability not adequate provocation under reasonable person standard]; People v. Steele, supra, 27 Cal.4™ at p. 1253 [defendant’s intoxication, mental deficiencies, and psychological deficiencies were not adequate provocation under reasonable person standard]; People v. Kanawyer, supra, 113 Cal.App.4” at p. 1247 [same].) 82 Similarly, the so-called “exceptions” the victim-as-provoker“rule” are more properly understood as applying the objective standard to the question of whether an act or event would provokepassion in a reasonable person. (See,e.g.. People v. Lee, 20 Cal.4" at p. 59 [recognizing reasonable belief victim provoked will suffice]; People v. Lujan, supra, 92 Cal.App.4" 1411 [same].) Thus, for instance,if a particular act would provoke passion in a reasonable person,that reasonable person would be no less provoked if he reasonably,but mistakenly, believed that the act had occurred. (People v. Logan, supra, 175 Cal. at p. 49; see also, e.g., People v. Rivera (1984) 157 Cal.App.3d 736, 743 [judged by reasonable person standard, reasonable mistake of fact may negate intent element of crime; defendant’s liability is determinedasifthe facts were as he reasonably perceived them].) c. Cases before and after Spurlin that have properly applied the reasonable person standard rather than categorical rules regarding the source of provocation. Thetruth ofthe foregoing observationsis born out by other decisions both preceding and succeeding Spurlin in which the victim may not actually have committed a provocative act, but the courts resolved the issue by determining whether the defendant’s passion was reasonable under the reasonable person standard, without resorting to any categorical victim-as-provoker“rule”orits “exceptions.” (See, e.g., People v. McCoy (2001) 24 Cal.4™ 1111, 1121 [turning to a Shakespearean analogy in recognizing that if Iago falsely tells Othello that his wife is having an affair and thus provokes in him a murderousrage, Otheilo’s act of killing his wife is voluntary manslaughter in the heat ofpassion]; People v. Breverman, supra, 19 Cal.4” at pp. 149, 151, 163 [discussed below]; People v. Brooks, supra, 185 Cal.App.3d at pp. 693-694 [court erredin failing to instruct on voluntary manslaughter in reasonable heat of passion where defendant’s 83 reasonable beliefthat victim had killed brother was adequate to provoke passion in reasonable person]; People v. Carlson (1974) 37 Cal.App.3d 349, 351 {if defendantaccidentally kills innocent third party while attemptingto kill another in reasonable heat ofpassion, the unintentionalkilling would be voluntary manslaughter undertransferred intent doctrine]; see also People v. Padilla (2002) 103 Cal.-App.4" 675, 679 [defendant’s hallucination that victim engaged in provocationis insufficient under reasonable person test, since “a perception with no objective reality cannot arouse the passions ofthe ordinarily reasonable person”].) Finally, the fact that there is no rigid requirementthat the provocation must comefrom the victim under section 192 finds compelling support in two recent decisions of this Court — People v. Minifie, supra, 13 Cal.4 1055 and People v. Breverman, supra, 19 Cal.4™ 142. In People v. Minifie, 13 Cal.4™ 1055, the defendant entered a bar where one of the victims, Tino, wassitting at a table with a group of others. Tino had broken a foot and was on crutches. Tino knew whothe defendant was and disliked him because he had killed one of Tino’s friends, Jackie Knight. The defendant also knew Tinoby sight as a friend ofKnight’s who hadbeen a pallbearerat his , funeral. The defendant and Tino approached each other, exchanged words, and Tino punchedthe defendantin the face, knocking him to the floor. Tino’s crutchesfell and he turned to grab them. The defendant pulled a gun from his waist area, fired at Tino, and struck both Tino and another patron and bystander, Nordahl. (id. at p. 1060.) The defendant claimed that he had acted in self-defense. In support ofhis claim, he movedto present evidencethat after he killed Knight, he had received a number ofthreats from Knight’s family and friends. He knew that Tino was a friend ofKnight’s, but concededthat Tino had neverpreviously threatened him. (People v. Minifie, supra, 13 Cal.4™ at pp. 1062-1063.) Because the defendant conceded that Tino hadnever previously threatened him,thetrial court excluded evidence ofthe threats from the Knight family and friends. (Id. at p. 1063.) The 84 defendant was convicted of assaulting both Tino and the unintended victim, Nordahl. (id. at p. 1064.) This Court held that the trial court erred. The third party threats were relevant and admissible with respect to both assault charges — both upon Tino and upon the unintended victim, Nordahl. (People v. Minifie, supra, 13 Cal.4® at p. 1065.) In so doing, the Court explicitly rejected the Attorney General’s position that “’[a]bsent a showing that the defendant has reason to believe the victim has himself adopted the threat, third-party threats should be inadmissible to support the objective reasonablenessofself-defense.’” (Id. at p. 1067, quoting from Attorney General’s brief.) The Court explained that while the victim’s behavioris certainly relevant, the flaw in the Attorney General’s argument: is that it assumesthe law ofself-defense centers on the victim’s act and intent. To the contrary, the law recognizesthejustification of self-defense not because the victim “deserved” whathe or she got, but because the defendant acted reasonably under the circumstances. Reasonableness is judged by how thesituation appearedto the defendant, not the victim. . . . Ifthe defendant kills an innocent person, but circumstances madeit reasonably appear thatthe killing wasnecessary in self-defense, that is tragedy, not murder. Thetest, therefore, is not whether the victim adopted the third party threats, but whether the defendant reasonably associated the victim with those threats. (People v. Minifie, supra, 13 Cal.4" at p. 1068.) Ofcourse, self-defense, like heat ofpassion manslaughter, requires some conduct to which the defendant responds — a threatin the case ofself-defense and provocation in the case ofheat ofpassion manslaughter. Self-defense, like heat of passion manslaughter, incorporates a reasonable person standard, under which the conduct may ordinarily come from the victim. (See LaFave, supra, § 15.2(b) at p. 784 and n. 76 [noting that legal principles relevant to self-defense are analogous to heat ofpassion doctrine].) If self-defense, which actuallyjustifies the killing of the victim, does not turn on whetherthe victim “deserved” what he or she got, 85 certainly the mitigating effect ofheat ofpassion does not turn on whether the victim deserved what heor she got. In both cases, application of the doctrines turn on whether the defendant acted “reasonably;” a question “judged by how the situation appeared to the defendant, not the victim.” (People v. Minifie, supra, 13 Cal.4" at p. 1068; see,e.g., People v. Valentine, supra, supra, 28 Cal.3d at pp. 136-144.) Thus, just as in the self-defense context, heat ofpassion may mitigate the killing ofan otherwise innocentvictim if the defendant reasonably, though mistakenly, believes that the victim engaged in provocative conduct. (See, e.g., People v. Humphrey (1996) 13 Cal.4" 1073, 1083 [self-defense]; People v. Lee, supra, 20 Cal.4" at p. 59 [heat ofpassion]; People v. Brooks, supra, 185 Cal.App.3d at pp. 693-694 [heat ofpassion].) Similarly, just as in the self-defense context, the heat ofpassion doctrine mitigates the killing of an otherwise innocent victim if the defendant accidentally killed the victim in an assault upon the provocateur. (See, e.g., People v. Minifie, supra, 13 Cal.4” at p. 1065 [self- defense]; People v. Carlson, supra, 37 Cal.App.3d at p. 351 [heat of passion].) Hence, for the same reasonsthat a claim ofself-defense is available where the defendant “reasonably associates” the victim with the threatening conductofa third party - regardless ofwhether the victim actually adopted those threats — so too must heat ofpassion be available as mitigation where the defendant “reasonably associates” the victim with the passion-provoking conduct of a third party. Indeed, the Court implicitly recognized as much in People v. Breverman, supra, 19 Cal.4™ 142. In that case, the evidence showedthat several of the defendant’s friends engagedin a fight with two passing youths, Kim andJu, in front ofthe defendant’s residence. (Id. at pp. 149-150.) On the following evening, Kim returned with seven oreight friends, including the victim, Suryastmadja. (Id. at p. 150.) While several ofthe young men were armed with weapons, including a baseball bat, there was no specific evidence that the victim 86 was armed. Kim slashedthetire ofthe defendant’s car, which was parked out front. (Ibid.) When the defendant cameout ofhis residence to check on thecar, some ofKim’s friends challenged the defendantto fight. Ibid.) Once again, there wasno specific evidence that the victim was oneofthe challengers. (Id. at pp. 150-152.) The defendant went back inside. A few minutes later, Kim and some of his friends approached the defendant’s residence, but the victim and another young man hung back. (Ibid.) The first group began hitting the defendant’s car with their weapons. According to the prosecution’s evidence, which was uncontradicted by the defense evidence, the victim was notin the group that hit the car. (Ibid.) From within his residence, the defendant fired several shots toward the young men. (Id. at pp. 150-151.) The defendant then exited his residence and emptied his gun into group of fleeing men. The victim was shotin the head and killed. (Ibid.) The defendant appealed in part on the ground that the trial court erred in failing to instruct on voluntary manslaughterin the heat of passion. (Id. at p. 152.) The Court agreed. (People v. Breverman, supra, 19 Cal.4" at p. 163.) Of course, the only evidence ofthe conduct in whichthe victim specifically engaged wasthat he was with other young men who intimidated the defendant and vandalized his car. There was no specific evidence that he was armed or challenged the defendant to fight. Furthermore, the prosecution’s uncontroverted evidence showedthat he was not among the group that vandalized the defendant’s car. Nevertheless, rather than limiting its examination to what the victim actually did, the Court properly examinedail ofthe circumstance leading to the shooting — including the acts ofthe victim’s companions — and considered how those circumstancesaffected the defendant’s state ofmind and how they would have affected a reasonable person, in concluding that the evidence wassufficient for a jury to find that the defendant killed the victim in a reasonable heat ofpassion. (Ibid.; cf. Perkins & Boyce supra, at pp. 100 [criticizing as “quite unsound” 1915 Washington decision which rejected heat ofpassion claim where victim 87 sodomized defendantandthird parties later taunted defendant about assault before defendant killed victim because, Washington court reasoned, provocative taunts werenot by victim and period between victim’s provocative act and killing was sufficient cooling time as matter of law].) In sum, despite Spurlin and the unconsidered reliance on that decision in subsequentcases, section 192 has never imposed rigid requirementthat provocation must comefrom the victim killed in order to demonstrate a reasonable heat of passion. As the foregoing clearly demonstrates, if an act or event would provoke a reasonable man into an impassioned state directed toward the victim, thenit is sufficient provocation to mitigate the crime to voluntary manslaughter if the defendant was so provoked.” C. Because There WasSubstantial Evidence That The Shooting Of All Of The Victims Was Committed In A Reasonable Heat Of Passion, The Trial Court Violated State Law And The Federal Constitution By Refusing To Instruct On The Lesser-Included Offenses OfVoluntary Manslaughter And Attempted Voluntary Manslaughter. Although the evidence regarding the identity ofthe actual shooter was breathtakingly close,it is clear from the jury’s verdicts that it determined Matthew was the shooter. Hence, for purposes ofthis argumentonly,it shall be assumed that Matthew was the shooter. 8 It is worth noting that the confusion in the case law may stem atleast in part from the occasionally careless use ofthe term “provocation.” That unadorned term invites focus on the victim’s conduct and its blameworthiness. As the foregoing demonstrates, the term “provocation” is properly understood as a shorthand reference to the requirementthat a reasonable person’s passion would be provoked underlike circumstances. This understanding ofthe term properly shifts the focus back to whereit rightfully belongs — on the defendant’s state of mind and the reasonableness thereof. Hence, Matthew submits that the better or more precise term encompassing both the objective and subjective components of “heat ofpassion” undersection 192 is “reasonable heat ofpassion,” as opposed to the more archaic term “heat ofpassion upon adequate provocation.” 88 1. The shooting deaths of Dewayne Arnold and Regina Watchman. It was undisputed attrial that the evidence ofboth “provocation” and heat ofpassion wassufficient to warrantinstructions on voluntary manslaughterin the heat ofpassion with respect to the shooting of Regina Watchman. (RT 2847- 2948.) Thus, it was undisputedattrial that the boys’ discovery ofthe assault upon their mother amountedto substantial evidence of “provocation.” It was also undisputed that there was substantial evidence that the perpetrator acted in the heat ofpassion when he committed the shooting. (RT 2947-2948.) However,the prosecutor persuadedthe court that voluntary manslaughterin the heat ofpassion requires actual provocation from each victim killed. (RT 2947-2948; CT 640.) Because it was only Watchman whoactually attacked the boys’ mother, the court agreed with the prosecutor that the evidence of “provocation” was lacking asto all of the other victims. (RT 2947-2948.) Of course, as the discussion in part B demonstrates, this analysis was fatally flawed. Applying the reasonable person standard, the question was whetherthere wassufficient evidencefor the jury to find that the events reasonably provoked the defendants’ passion, the answer to which turned not on whatactually occurred, but rather on how the situation _ reasonably appeared to them. Under this standard, the evidence was more than sufficient for the jury to find that the series of events preceding the shooting was sufficient to provoke a reasonable person’s passion against both Watchman and Arnold. Because the boys did not witness the assault on their mother, their perception ofthe event turned on what she told them had happenedto her. (See, e.g., People v. Barton, supra, 2 Cal.4” at p. 202 [revelation by family memberthat she had been threatened was substantial evidence of adequate provocation, despite fact defendant did not witness the event himself]; People v. Brooks, supra, 185 Cal.App.3d at pp. 693-694 and cases cited therein [revelation that victim harmed 89 family member, even if incorrect, adequate provocation if defendant reasonably believesit].) Given that she was the architect both of the victims’ and ofher sons’ tragic fate, it was hardly surprising that Ms. Souza was an uncooperative witness with all of the parties, claiming to recall very little of critical events, including what she had actually communicated to her sons. However, the story she told them could readily be gleaned from a substantial amount of compelling circumstantial evidence. Although byall other accounts, Regina Watchman assaulted Ms. Souza by knocking her down and dragging her by the hair out the front door, Ms. Souza testified that Watchman also kicked her several times. (RT 2087-2088. 2142-2143, 2038-2039, 2144, 2248-2250, 2310-2311, 2451, 2519-2520, 2628, 2687, 2731, 2771-2772, 2919-2920.) After the assault, and according not only to Ms. Souza, but also to Ed Amold and Esther Dale, Ms. Souza washighly emotional, sobbing, and in pain and shock. (RT 2145, 2149, 2629-2630, 2655, 2921-2922.). Ms.Souza claimedto recall little ofwhat she said to Arnold and Dale on the drive home. (RT 2090, 2112.) Significantly however, as the prosecutor argued, Ed Amold — the only witness who had not consumed alcohol that night-- “remember[ed] exactly what happened.” (RT 3303.) According to Arnold, Ms. Souza repeatedly and furiously referred to the “beating” she had suffered at the hands of “those people” at Watchman’s apartment. (RT 2921-2922.) As Arnold explained, she was not making any sense because he knew that a group ofpeople had not beaten her. (RT 2921-2922.) Nevertheless, although he kepttelling her to calm down, she repeated her nonsensical refrain all the way hometo her sons. (R 2631-2632, 2655, 2921-2922.) While Ms. Souza claimedto recall little ofwhat she actually told her young sons, she did recall that she was “hysterical,” crying, in pain, angry, and bloodied when she woke them in the dead ofnight from a sound sleep. (RT 2096, 2099, 2107, 2155-2156, 2193-2194, 2203-2204.) She also recalled telling them that she 90 had been “beaten.” (RT 2098, 2156, 2188, 2193.) She wascertain that they saw the blood on her. (RT 2098, 2188, 2193.) Byvirtually all accounts, when Michael entered the apartment, he demanded to know who had “beaten,” “jumped,” and “kicked”his mother’s“ass.” (RT 2044-2045, 2322-2326, 2454.) According to Raymond Douglas’s police statements andtrial testimony, he wanted to know which ofthe “motherfuckers” and which ofthe “guys” had “beaten up” his mother. (RT 2322-2326.) He later claimed that Michael also demanded to know whowasthe “bitch” who had beaten his mother. (RT 2260, 2262, 2327.) Significantly, however, by no account did Michael demandonly that the occupants point out Regina Watchmanorthe woman wholived at the apartment, which might have suggested that they knew it was only Watchman who wasresponsible for the beating. (See RT 2044-2045, 2260, 2262, 2322-2327, 2454, 2688-2689, 2692-2693, 2733-2734, 2778.) Michael also demanded to know whohad“stole[n]” his mother’s purse and repeatedly ordered them to return it to him. (RT 2044-2045, 2054-2056, 2260, 2454-2455, 2733-2734, 2778.) From all of this evidence, the jurors could more than reasonably have surmised that their bloodied and “hysterical” mother told the boys that a group of peopleat the party had brutally beaten her and stolen her purse. They could further have foundthatthe boys believed her account,just as any reasonable children would believe their mother underlike circumstances. (See, e.g., People v. Brooks, supra, 185 Cal.App.3d at pp. 693-694 [reasonable but mistaken belief that victim had killed brother, based on information communicated to him, adequate provocation under reasonable person standard]; accord People v. Lee, supra, 20 Cal.4" at p. 59; People v. Logan, supra, 175 Cal. at p. 49.) Ms. Souza’s motive in misleading her sonsis unclear. It is entirely possible that Ms. Souza, furious over Watchman’s assault and the indifference ofthe guests whohad witnessedit, deliberately misled them. Like Iago who whipped Othello into a murderousrage with lies, Ms. Souza may have decided to exaggerate the 91 incident in order to provoke a reason-obscuring passion in her young sons and manipulate them into returning to the party so that she could avenge her wounded pride. (See People v. McCoy,supra, 24 Cal.4™ at p. 1121 [ifIago, with cold- blooded premeditation, falsely tells Othello that his wife is having an affair in order to provoke in him a murderousrage, Othello’s act of killing his wife would be voluntary manslaughter in the heat ofpassion even though Iago would be guilty ofmurder].) Indeed, the prosecution’s evidence strongly suggested that Ms. Souza knew that she had notleft her purse at the party, but deliberately misled her sons by telling them that it was at Watchman’s apartment, perhaps even stolen, andthat they hadto retrieve it, as a means to compel them to go there. (See RT 3306.) To be sure, it is difficult to imagine that a mother would play Iago to her own children’s Othello. However, the evidence presentedat trial revealed that Ms. Souza wasno ordinary mother. After setting her children on the disastrous course that led to this tragedy, she astonishingly admitted that she simply abandoned them. (RT 2115-2116, 2166, 2168, 2 196-2198.)!? At the sametime,it is entirely possible that in her drunken state, Ms. Souza actually believed at the time that “people” at the party had “beaten” her. (RT 2921-2922.) In any event, whether she was drunk and mistakenor calculating and deceitful is immaterial because the critical question is what her sons believed and what reasonable sons would have believed under the same circumstances. And,as all of the foregoing demonstrates, there was substantial evidence from which the jurors could find that they reasonably believed that a group ofpeople at Watchman’s apartmenthadbrutally beaten and bloodied their mother. Just as a brutal assault on one’s mother would upset and enrage any reasonable child, these children were “very upset” by their mother’s account, demeanor, and appearance. (RT 2203-2204;see, ¢.g., 2 Wharton’s Criminal Law, 19 Indeed, this mother did not even know the ages ofher own children. (RT 2071.) And this mother, who hadset her child on his tragic course, did nottestify at all to plead for his life at the penalty phase. 92 supra, § 163 at p. 63 [harm orthreat to family well recognized as adequate to engender passion in reasonable person]; accord People v. Barton, supra, 12 Cal.4" at p. 202; People v. Brooks, supra, 185 Cal.App.3d at pp. 693-694; LaFave, supra, §15.2(b) at pp. 777, 782.) But if that passion alone were not enough to impelthe boys to go to Watchman’s apartment, their mother went even further. By her own admission, she stoked the flames of their passion by “hysterical[ly]” insisting that herchildren find the apartment andretrieve her belongings. (RT 2096-2097, 2099, 2101, 2107-2108, 2150, 2155-2156, 2193-2194, 2203-2204, 2214, 2219.) Asthe boys drove around looking for the apartment with their mother, her “hysteria,” and thus the passion-provoking event, continued. (RT 2106, 2160- 2161; see, e.g., People v. Berry, supra, 18 Cal.3d at p. 509; LaFave, supra, § 15.2(d) at pp. 786-787; Perkins & Boyce, supra,at p. 100.) Ms. Souza could not recall what time the boys dropped her back at her cousin’s apartment. (RT 2094-2095, 2198.) However, the other witnesses’ time estimates provided substantial evidence from which the jury could reasonably conclude that the boys arrived at Watchman’s apartment no more than several minutes after dropping their “hysterical” mother off at home. Accordingtoall of the witnesses, the tavern closed at 2:00 a.m. and the guests began arriving at Watchman’s apartmentshortly thereafter. (RT 2030, 2032-2033, 2076, 2131, 2239-2244, 2349, 2516-2518, 2623, 2725, 2914-2916.) According to various accounts, Watchman’s assault upon Ms. Souza occurred anywhere from an hour to two hoursafter the party began and the boysarrived at the apartment about an hour or so later. (RT 2034-2038, 2041-2042, 2085, 2138, 2253, 2317-2318, 2732, 2758.) 2317-2318, 2747, 2758.) Since the shooting was reported at 5:06 a.m., that would place the assault on Ms. Souza at about 4:00 a.m. (RT 3072.) Accounting for the time it took for Ed Arnold to drive Ms. Souza home, for Ms. Souzato relay her story to the boys, and for them to drive around looking for the apartment and drop her backoff, the evidence supported a reasonable inference that the boys arrived at the apartmentless than half an hour after dropping their still “hysterical” 93 mother off at home. Indeed, according to the prosecution, she probably led them to the apartment before she had them return herto the safety ofher home, which would have meantthat it took very little time for them to drive there after dropping her off. (RT 3309-3310.) Hence, there was no basis on which to conclude as a matter oflaw that a reasonable person’s passion would have cooled, or that the boys’ passion did cool, in the interim between dropping their mother at home and arriving at Watchman’s apartment. Given all ofthe circumstances, including the extremenature ofthe initial provocative event, their emotional response, the continuing nature of the “provocation” from their mother’s unceasing “hysteria” over the “beating” while they looked for the apartment, the relatively short period oftime between dropping their mother off and arriving at the apartment, and their angry demeanor when they arrived at the apartment, there was ample evidence from whichthe jurors could conclude that the boys arrived at the apartmentin an actual, reasonablestate ofpassion, believing that a group ofpeople there had just brutally beaten their mother. (See, e.g., People v. Bridgehouse, supra, 47 Cal.2d at p. 409-414 [nature of series ofprovocative events, fact defendant’s passion intermittently provoked over period of days, defendant’s exhaustion, and description of defendant as “white” and “shaking” before shooting victim, sufficient circumstantial evidence to establish killing committed in heat ofpassion as a matter of law]; People v. Brooks, supra, 185 Cal.App.3d at pp. 696-697 [two-hour period between defendant hearing victim killed brother and defendantkilling victim was not cooling period as matter of law].) When Michael entered the apartment and demanded to know whohad “beaten” and “jumped” his mother, two people responded directly and aggressively: Regina Watchman and Dewayne Arnold. Watchman got up and ordered the boys to “get the hell out ofmy house.” (RT 3131.) As the prosecutor argued, given the other witnesses’ testimony that Watchmanhad told Ms. Souza that she lived in the apartment and the accounts ofsomeofthe witnessesthat 94 Michaelreferred to the “bitch” who hadparticipated in the attack, the jury could infer that Ms. Souzatold her sons that at least one ofthe people responsible for her assault was the female resident ofthe apartment. (RT 3304.) Hence, as the prosecutor further argued, once Watchman angrily responded to Michael by ordering them to “get the hell out my house,”the jury could infer that the boys reasonably believed that Watchman was that woman. (RT 3313.) Similarly, when Michael demandedto know theidentity of his mother’s assailants, Dewayne Arnold stood up. He was a large man who had consumed both methamphetamine and a staggering amountofalcohol that night. (RT 1944- 1947.) He wasclearly “mad”and “upset,” and appeared as if he were going “to try to do something.” (RT 3107, 3132, 3158.) He angrily demanded “what the fuck was going on” and grabbed for Michael’s gun. (RT 2057, 2332, 2454-2456, 2505, 2738-2740, 2789.) Of course, Armold had not actually participated in the assault on their mother and his aggressive response to Michael wasnot grossly unreasonable,as the prosecutor pointed out. (RT 3447.) Once again, however, the critical inquiry is not on the reasonablenessofthe victim’s conduct, or on whether he “deserved” whathe got, but rather on howthesituation appeared to the defendant, and howit would appear to a reasonable person,in light ofall ofthe circumstances. (See People v. Minifie, supra, supra, 13 Cal.4” at pp. 1067-1068.) In making that critical assessment,all ofthe provocative events — not simply the conductthat precededthekilling or the conduct that actually occurred or the conduct engaged in by the victim — can and should be considered. (See, e.g., People v. Breverman supra, 19 Cal.4™ at pp. 149-152, 163 [victim was with group, some ofwhom engaged in conduct which provoked defendantinto a reasonable state ofpassion; evidence sufficient to warrant finding that shooting ofvictim committed in reasonable heat ofpassion]; People v. Berry, supra, 18 Cal.3d at pp. 514-515 [while wife’s screams in response to her husband’s expressedintent to kill her would not, considered in a vacuum, amount to adequate “provocation,” there was 95 substantial evidence that it reasonably rekindled defendant’s heat ofpassion given the cumulative effect ofprior provocative conduct]; People v. Bridgehouse, supra, supra, 47 Cal.2d at p. 409-414 [while defendant’s mere unexpected encounter of wife’s paramour would not constitute adequate provocation when considered in vacuum,it reasonably rekindled defendant’s passion given prior provocative conduct engaged in by wife].) In making this assessment, it is well settled that one may reasonably infer a person’s guilt from his response to an accusation or his conduct following the commission of a crime or act ofmisconduct. (See, e.g., People v. Edelbacher (1989) 47 Cal.3d 983, 1010-1011 [admission is reasonable inference from failure to deny accusation]; People v. Miranda (1987) 44 Cal.3d 57, 84 [person’s conduct may be relevant to show consciousnessofguilt]; People v. James (1976) 56 Cal.App.3d 876, 889 [person’s conduct following commission of crime, whetherflight, evasion of apprehension, attempted suicide, or escape from custody, may be relevant circumstantial evidence tending to show consciousness of guilt and, by further inference, guilt of crime]; Evid. Code § 1221 [adoptive admission exception to hearsayrule].) Pursuantto these principles, given the boys’ apparent belief that more than one person had “beaten” their mother and their already reasonably impassioned state, much like an adoptive admission, the boys could reasonably but mistakenly have concluded from Arnold’s response to Michael’s accusation that he was one ofthe “people” who had attacked his mother (see People v. Lee, supra, 20 Cal.4® at p. 59); or they could have reasonably associated Arnold with his mother’s attack (People v. Breverman, supra, 19 Cal.4™ at pp. 149-152, 163; People v. Minifie, supra, 13 Cal.4" at pp. 1062-1068; People v. Bridgehouse, supra, 47 Cal.2dat p. 409-414). Hence, given all that had preceded that moment and that any reasonable person’s judgment would have been clouded by anger under the same circumstances, the jurors could have found that a reasonable person would have been provokedinto a state ofpassion directed against Arnold both because they 96 believed he was oneoftheir mother’s attackers and because he respondedtotheir accusation with more violence. Furthermore, the jurors could infer that Matthew’s reasonably impassioned mental state was further inflamed by the violent confusion that erupted from the confrontation between Amold andhis brother. As the inconsistent accounts ofthe other witnessesstarkly illustrated, no one wasentirely certain ofwhat exactly happened between Michael and Dewayne Amold. However, it seems clear that there were heated words and a physical altercation between the two men. (RT 2058-2059, 2301, 2332-2333, 2381, 2059, 2301, 2332, 2381, 2457, 2833, 2835.) During the confrontation, a lamp fell with a crash and several witnesses heard a shot and saw a flash come from where the two men werestruggling. (RT 2266, 2362-2366, 2809-2812.) A numberofwitnessestestified that a single shot was fired first, and that this first shot sounded different from the series of rapidly fired shots that followed it. (RT 2379, 2405, 2424, 2430, 2433, 2478.) Consistent with this testimony, there was evidence that a .25 semi-automatic was fired once and that an automatic or semi-automaticrifle firing .223 ammunition was discharged 14 times. (RT 2557, 2568-2569, 2851-2852, 2857-2859.) From all ofthis evidence, the jury could have inferred that Matthew heard that first shot and saw a flash of gunfire from his brother and Arnold’s location and, like the other witnesses, that he reasonably believed that a gun had beenfired from that location. (RT 3109-3110, 319-3140, 3160-3161.) Since Arnold had reached forhis brother’s gun (RT 2738-2740, 2789), Matthew could have believed that it was Arnold who hadfired that shot. Or, like other witnesses, he could have heard the soundsof“scuffling” and the crashing lamp and believed that Arnold wasattacking his brother, just as he had attacked or aided the attack on his mother. (RT 2333, 2381, 2058-2059, 2301, 2332, 2381, 2457, 2833, 2835.) Having already been whippedinto a reasonable state ofpassion by his mother’s horrifying story and appearance, and his beliefthat Arnold was complicit in the assault, any belief that Arnold would further harm his family by attacking his brother meant 97 that the “provocation”only gained in its explosive power, which immediately resulted in Matthew’s sudden, impulsive, and impassioned firing ofhis own weapon. (RT 2060, 2332-2333.) Indeed, the inference that Matthew believed that Watchman and Arnold were two ofthe people responsiblefor the attack on his mother, and that the shooting was an impulsive response to the heat ofpassion engendered both bythat realization and the events precedingit, is buttressed by the fact that the shooting commenced immediately after the heated words and confrontation between Arnold and his brother. (See, e.g., People v. Barton, supra, 12 Cal.4” at p. 202 [evidence sufficient to warrant instructions on voluntary manslaughterin the heat ofpassion where victim and defendant’s daughter were involved in an upsetting traffic accident during which the victim spat on the daughter’s car, that the daughter was “extremely upset” when she later relayed the altercation to the defendant, that the defendant armed himself and wentto confront the victim, at which point a heated argument ensued between the two menbefore the defendantshotthe victim].) Furthermore, Dewayne Arnold wasshot a total ofseven times while Watchman wasshotthree times. (RT 1924-1925, 1939-1941.) This evidence, combined with the other evidence, supported a finding that the shooting occurred in an “explosion”ofpassion. (See, e.g., People v. Alcala (1984) 36 Cal.3d 604, 626 [multiple woundsoracts ofviolence consistent with impassioned “explosion” of violence]; People v. Anderson (1968) 70 Cal.2d 15, 25 [same]; People v. Birreuta, supra, 162 Cal.App.3dat p. 462, n. 6 [evidence supported finding ofkillings in sudden quarrel or heat ofpassion where, inter alia, defendant shot one victim six times and other four times]; People v. Jiminez (1950) 95 Cal.App.2d 840, 842-843 [stabbing victim eight times consistent with subjective heat ofpassion].) Thus,all _ ofthis evidence wassufficient for the jury to find that the shootings ofArnold and Watchman were committed in a reasonable heat ofpassion. The court therefore violated state law, as well as Matthew’s federal constitutional rights to due process, to present a defense,to trial by jury, and to a reliable guilt phase 98 determination in refusing to instruct on voluntary manslaughter in a reasonable heat ofpassion as to both Watchman and Arnold. (See, e.g., People v. Breverman, supra, at pp. 159, 160-162 [maj. opn.] and pp. 188-189 [dis. opn. ofKennard, J.]; Mullaney v. Wilbur, supra, 421 U.S. at pp. 698-699; Osborne v. Ohio, supra, 495 U.S. at pp. 122-124; Beck v. Alabama, supra, 447 U.S. at pp. 637-638; Conde v. Henry, supra, 198 F.3d at pp. 739-740.) 2. The shootings of Leslie Trudell, Beulah John and Rodney James. Asto the shootings of Leslie Trudell, Beulah John, and Rodney James, the evidence supported two factual scenarios, both ofwhich supported findings that they were committed in a reasonable heat ofpassion. First, the evidence strongly suggested that they were shot unintentionally because they werein the line of fire whenthe perpetrator shot Arnold and Watchman. Byall accounts, as well as photographs ofthe scene, the room in which the shooting occurred was extremely small and crowded. (RT 2035, 2235, 2304-2305; People’s Trial Exhibits A-L.) Accordingto all of the witnesses, the gunfire began in front ofthe couch on which Amold and Watchman were seated. (RT 2052-2053, 2266, 2330, 2362-2366, 2330, 2786-2787, 2809-2812, 3109-3110, 31903140, 3160-3161.) Trudell, James, and John were located directly behind that couch, at or near the kitchen table, when they were shot. (RT 2269-2270, 2434, 2437, 2523-2525, 2529-2530, 274- 2745; People’s Exhibit 33; Deft. A’s Exhibit A.) In other words, all of the other victims struck by the bullets were sitting or standing behind the targets, Arnold and Watchman. While Arnold was shot seven times and Watchman shot three times, Beulah John and Rodney James were each shot only once and Leslie Trudell, who was closest to the couch, was shot only twice andvirtually in the samelocation on his body. (RT 1956-1957, 2270, 2437, 2523, 2437; People’s Exhibit 33.) Significantly, unlike Trudell, John, and James, the several other 99 people in the apartment who were not shot were notin the line of fire directed at Arnold and Watchman. Moreover, there was no evidence presented at the guilt phase to suggest that Matthew wasfamiliar with guns. To the contrary, the only evidence presented regarding Matthew’s familiarity with guns came from his mother, who testified that she had never seen him with, or talk about, firearms. (RT 2092- 2093.) The state’s firearm expert could not determine whether an automatic or semi-automatic had fired the ammunition in this case. (RT 2867.) However, the ammunition recovered from the scene can be fired from both semi-automatic and fully automatic weapons. (RT 2851-2852.) A fully automatic weapon requires only onetrigger pull to continuously fire bullets. (RT 2852.) Several ofthe witnessestestified to a burst of gunfire, the shots having beenfired in rapid succession and without any pauses between them, which would be consistent with an automatic weapon. (RT 2060, 2432, 2603-2604, 3110-3113, 3136, 3138.) Indeed, one ofthe witnesses said they soundedas ifthey came from an “army machine gun.” (RT 3112.) From this evidence, a reasonable inference could be drawn that the rifle was an automatic andthat ail ofthe bullets were discharged with a single pull ofthe trigger and in a single spray of gunfire. It could further be inferred that when this inexperienced 18-year-old boy — who had been whipped into a state ofpassion — pulled the trigger of that fully automatic weapon and shot at Arnold and/or Watchman,he did not have control ofwhere the bullets struck. From all of the evidence, the jury could more than reasonably have foundthat the other victims were hit unintentionally as Matthew shot Arnold and Watchman in a reasonable heat ofpassion.”° Ofcourse, only Trudell died; both John and James survived. Under this factual scenario of an unintentional shooting ofthe three, Matthew would be liable 20 Any argumentthat the jury necessarily rejected such a factual scenario by convicting the boys ofthe premeditated attempted murders ofBeulah John and Rodney James is answered in part E-3 and Argument IV, below. 100 for the voluntary manslaughter of Leslie Trudell, either under a transferred intent theory (see, e.g., People v. Bland, supra, 28 Cal.4™ at pp. 317, 322; People v. Carlson (1974) 37 Cal.App.3d 349; see also People v. Minifie, supra, 13 Cal.4® at p. 1065), or under a theory that he committed a highly dangerous act with conscious disregard for human life, but without implied malice due to heat of passion (People v. Lasko, supra, 23 Cal.4™ at p. 109 [reasonable heat ofpassion legally negates implied malice). However, ifhe did not intend to kill them, Matthew would notbe liable for the attempted voluntary manslaughter of John and James under any theory. (People v. Bland, supra, at pp. 317, 326-331 [specific intent to kill victim required for attempted murder; transferred intent does not apply to attempted murder]; People v. Gutierrez (2003) 112 Cal.App.4™ 704, 710 [attempted voluntary manslaughter requires specific intent to kill victim even though voluntary manslaughter doesnot].) The second factual scenario did, however, support instructions on both voluntary manslaughter and attempted voluntary manslaughter as to Trudell, James, and John. Although weak, the evidence waslegally sufficient for the jury to find that Trudell, John, and James were shotintentionally. Even underthis scenario, there was substantial evidence from whichthejurors could conclude that they were intentionally shot in a reasonable heat ofpassion. Asdiscussed in part B, because the heat ofpassion doctrine focuses on the reasonableness ofthe defendant’s passion and not on whether the victim “deserved” what he or she got, the critical question to be answered is whethera reasonable person would have been provokedinto a state ofpassion directed against the victims. Thus, if there is evidence from which to concludethat the defendant reasonably associated the victim with acts that reasonably provokedhis passion, thenit is sufficient to support a finding ofvoluntary manslaughter. (See People v. Breverman, supra, 19 Cal.4" at pp. 149-152, 163; People v. Minifie, supra, 13 Cal.4™ at pp. 1067-1068.) For instance, in People v. Breverman, although the only specific evidence ofthe victim’s conduct was that he was with a 101 group ofyoung men who had engagedin provocativeacts, the Court recognized that the jury could consider the conduct of ail of the group membersin assessing the reasonableness ofthe defendant’s passion. (People v. Breverman, supra, 19 Cal.4® at pp. 149-152, 163; see also People v. Bridgehouse, supra, 47 Cal.2d at p. 409-414) Here, as discussed in the preceding section, there was substantial evidence from which the jury could find that Ms. Souza hadtold her sons that a group of people at Watchman’s apartmenthadbrutally beaten her and that they reasonably believed her story. When they went to the apartmentat their mother’s “hysterical” urging, they did indeed encounter a group ofpeople. And, when they demanded to knowthe identities oftheir mothers’ attackers, two ofthe group members responded with aggression. Once the angry confrontation turned into a physical one between Arnold and Michael, Matthew — his judgment already clouded by passion — fired his weapon and struck several membersofthe group. Just as in Breverman,this evidence wassufficient for the jury to find thatall ofthe circumstances were sufficient to provoke a reasonable person into “act[ing] rashly” against any andall ofthe victims, “without due deliberation andreflection, 999and from this passion rather than from judgment.’” (People v. Breverman, supra, 19 Cal.4" at p. 163.) Hence, the court’s refusal to instruct on voluntary manslaughter and attempted voluntary manslaughterasto all ofthe victims violated state law and Matthew’s federal constitutional rights to due process, to present a defense, to trial by jury, and to a reliable guilt phase determination. (See,e.g., People v. Breverman, supra, at pp. 159, 160-162 [maj. opn.] and pp. 188-189 [dis. opn. ofKennard, J.]; Mullaney v. Wilbur, supra, 421 U.S.at pp. 698-699; Osborne v. Ohio, supra, 495 U.S. at pp. 122-124; Beck v. Alabama, supra, 447 U.S.at pp. 637-638; Condev. Henry, supra, 198 F.3d at pp. 739-740.)”" a1 Moreover, because the evidence supported a theory ofvoluntary manslaughter and attempted voluntary manslaughter potentially dependent on a reasonable even if mistaken beliefthat certain conduct had occurred, or that the 102 D. Counsel Did Not Invite The Errors. Respondent may arguethat trial counsel invited the errors by: a) acquiescing in the court’s reading ofthe law that provocation must actually come from the victim killed and its resulting refusal to provide the instructions as to any victim other than Regina Watchman;and/orb) later withdrawing his request for the instruction limited as to Watchman. Any such argument must be rejected. Because the obligation to instruct on every supportable theory ofa lesser- included offense “seeks the most accurate possible judgment by ‘ensuring that the jury will consider the full range ofpossible verdicts’ includedin the charge, regardless ofthe parties’ wishesor tactics,” a trial court mustinstruct on every supportable theory ofa lesser-included offense even over defense objection. defendants reasonably associated all of the victims with that conduct, the jurors should have been instructed accordingly. (See People v. Breverman, supra, 19 Cal.4" at pp. 159, 162 [court mustinstruct not only onall lesser-included offenses supported by the evidence, but also on all theories of lesser-included offenses]; People v. Wilson, supra, 66 Cal.2d at p. 159 [court erred in failing to provide complete and accurate instructions on lesser-included offense whereit instructed on lesser-included offense ofmisdemeanor manslaughter but failed to instruct on underlying misdemeanorofbrandishing and its elements]; see also, e.g., People v. Lucero (1988) 203 Cal.App.3d 1011, 1017-1018 [trial court has sua sponte duty to instruct on reasonable mistake of fact where supported by substantial evidence].) That is, just as self-defense instructions must advise the jurors that the defendant’s reasonable belief in an imminent threat is legally equivalentto the threat actually existing in determining the defendant’sliability (See CALJIC Nos. 5.12, 5.14), so too must voluntary manslaughter instructions advise the jurors that the defendant’s reasonable belief in provocation is legally equivalent to the provocation actually existing where there is evidence to support it. Similarly, because the evidence supported a theory ofvoluntary manslaughterin the heat ofpassion dependent upon the transfer of an absenceof intent or malice, the court was also under a sua sponte obligation to instruct the jurors on that principle. (See, e.g., People v. Cummings (1993) 4 Cal.4™ 1233, 1311 [court has sua sponte duty to instructonall principles of law that are closely and openly connected with the evidence and necessary for jury’s understanding ofthe case]; People v. Breverman, supra, 19 Cal.4" at pp. 159, 162; People v. Levitt, supra, 156 Cal.App.3d 507 [instructions 103 (People v. Breverman,at pp. 154-155, 160, quoting People v. Wickersham,supra, 32 Cal.3d at p. 324; accord People v. Valdez (2004) 32 Cal.4" 73, 115; People v. Barton, supra, 12 Cal.4® at p. 196 [“the doctrine of invited error does not. . vindicate the decision ofa trial court to grant a defendant’s request not to give an instruction that is otherwise proper; the errorisstill error’’}.) Where the error goes to the trial court’s fundamental swa sponte instructional obligations, such as the duty to instruct on lesser-included offenses, it may be invited only in a “special situation.” (People v. Graham (1969) 71 Cal.2d 303, 319, 331; People v. Marshall (1990) 50 Cal.3d 907, 931) Thatis, “if counsel suggests or accedes to the erroneous instruction because ofneglect or mistake we do notfind invited error; only if counsel expresses a deliberate tacticalpurpose in suggesting, resisting, or acceding to an instruction, do we deemit to nullify the court’s obligation to instruct on the cause.” (People v. Graham, supra, 71 Cal.2d at pp. 319, 331, emphasis supplied [counsel’s explicit agreementthat erroneousinstruction was proper did not invite error in absence of expression of deliberate tactical purpose]; accord People v. Valdez, supra, 32 Cal.4™ at p. 115; People v. Beardslee (1991) 53 Cal.3d 68, 88 [counsel’s request for erroneousinstruction did not invite error]; People v. Carrera (1989) 49 Cal.3d 291, 311 n.8 [counsel’s explicit concession to erroneous omission ofinstruction did not invite error in absence of expression of deliberate tactical purpose];In Mosher (1969) 1 Cal.3d 379, 393 [counsel did not invite error “by merely acceding to erroneousinstruction by neglect or mistake” in absence of expression of deliberate tactical purpose].) Thetest for invited error is not whether the reviewing court can infer from the record as a whole that counsel made a deliberate tactical decision to suggest, resist or accede to erroneousinstructions. (People v. Wickersham, supra, 32 Cal.3d at pp. 333, 334.) Invited error cannot be found even if counsel's silence on transferred lack of criminal intent in self-defense context are “as appropriate as 104 was the result of a tactical decision, because the court's duty to instructis not dependent upon counsel and is not waived by counsel's failure to demand instructions. (Id. at p. 334.) “The issue centers on whether counsel deliberately caused the court to fail to fully instruct, not whether counsel subjectively desired a certain result. Theerror, in other words, must be ‘invited.’” (Id. at p. 335; accord, e.g., People v. Lara (2001) 86 Cal.App.4™ 139, 164; People v. Tapia (1994) 25 Cal.App.4" 984, 1030.) Here, the prosecutor convincedthe trial court that, in order to negate malice with reasonable heat ofpassion, the provocation must actually come from the victim killed. (RT 2947-2948; CT 640.) Consequently, the court ruled thatit would limit the manslaughter instructions to the count involving Regina Watchman,the only person whoactually assaulted the boys’ mother. (RT 2947- 2948.) Although counsel acquiesced in the court’s ruling, he expressednotactical basis for doing so. (RT 2947.) Hence, pursuant to the foregoing authorities, counsel clearly did not invite the erroneous omission of instructions on voluntary manslaughter and attempted voluntary manslaughteras to all of the counts.” To be sure, following the court’s ruling, counsel eventually withdrew his requestfor the instructions as to the Regina Watchman murder charge. (RT 3230- instructions on any other defense”].) 22 Indeed, although the test for invited error requires an expresstactical reason which cannot be implied from reviewing the record as a whole,it is nevertheless clear from the record as a whole that counsel’s decision was not strategic or tactical. With respect to the shooter and his accomplices’ degree of culpability, both counsel contended that they wereliable for the deaths, but that their liability was mitigated to second-degree murderdueto the existence of provocation. (RT 3320, 3330-3331, 3374, 3402-3404.) Obviously, they were not pursing an all or nothing strategy nor did they have anytactical reason for removing from the jury’s consideration an even lesser offense option based upon the same evidence ofprovocation and heat ofpassion. (See People v. Graham, supra, 71 Ca.2d at p. 320 [invited error did not apply because counseldid not expressa tactical reason for agreeing to error in lesser offense instruction; observing in any event that record did not demonstrate tactical basis for agreement, since counsel did request other lesser offense options].) 105 3231.) Counsel explained that, in light of the court’s (erroneous) ruling limiting the instruction to the Watchmanchargeonly, he feared that the jury would become confused about the application ofthe provocation evidenceasit related to the premeditation element in the charges involving the other victims. (RT 3230-3231.) In other words, counsel’s request was mere damagecontrol caused by the court’s more fundamental, erroneousruling that it would not provide the instructionsas to any other victims. Thus, because counsel’s request wasitself “invited” or induced by the court’s original error, the invited error doctrine is inapplicable. (See, e.g., People v. Watts (1976) 59 Cal.App.3d 80, 85- 86 and n.2, cited with approval in People v. Wickersham, supra, 32 Cal.3dat p. 332 [counsel’s request for inappropriate instruction, which was only madeout of deference to court’s suggestion that it would provide incorrect instruction rather than correct instruction, did not invite the error]; see also People v. Turner (1990) 50 Cal.3d 708, 744 and n. 18 [“defensive acts” to mitigate effect of adverse ruling do not amount to waiver]; accord People v. Venegas (1998) 18 Cal.4" 47, 94.) E. The Errors Require Reversal. 1. Respondent bears the burden of proving the errors harmless beyond a reasonable doubt because they violated Matthew’sfederal constitutionalrights. As demonstrated, the trial court’s erroneous refusal to instruct on voluntary manslaughter and attempted voluntary manslaughter in a reasonable heat of passion violated not only state law, but also Matthew’s rights to due process,trial by jury, to present a defense, and to a reliable guilt phase determination underthe Fifth, Sixth, Eighth, and Fourteenth Amendments. (People v. Breverman, supra, 19 Cal.4th at pp. 188-189, dis. opn. ofKennard, J.; Mullaney v. Wilbur, supra, 421 U.S.at pp. 698-699; Osborne v. Ohio, supra, 495 U.S. at pp. 122-124 and n. 17; Beck v. Alabama, supra, 447 U.S. at pp. 637-638; Conde v. Henry, supra, 198 F.3d at pp. 739-740; Bashorv. Riley, supra, 730 F.2d at p. 1240; Everette v. Roth, 106 supra, 37 F.3d at p. 261; Vujosevic v. Rafferty, supra, 844 F.2d 1023.) Consequently, reversal is required unlessthe state can prove the errors harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; accord Sullivan v. Louisiana, supra, 508 U.S. at p. 279; Yates v. Evatt (1991) 500 U.S. 391, 404.) In making this determination, the inquiry is not “whether, in a trial that occurred without theerror, a guilty verdict would surely have been rendered” based uponthe strength of the evidence. (Sullivan v. Louisiana, supra, at p. 279.) Rather, the reviewing court must determine “whetherthe guilty verdict actually renderedin this trial was surely unattributable to the error.” (Ibid.) Under these standards, respondent cannot prove the errors harmless beyond a reasonable doubt. 2. The jury’s verdicts do not prove beyond a reasonable doubtthatit resolved the questions omitted by the voluntary manslaughter instructions under a correct application of the law. The failure to provide a lesser-included offense instruction may be harmless under the Chapman standard ifthe reviewing court can determine beyond a reasonable doubt that the jury necessarily resolved the issues posed by the erroneously omitted instruction under other, properly given instructions or — put another way — a correct understanding ofthe law. (See, e.g., People v. Marshall (1996) 13 Cal.4" 799, 851.) Respondentwill undoubtedly arguethatthetrial court’s errors were harmless under Chapman becausethe jury necessarily determined that the shooting was not committed in a heat ofpassion by convicting the boys ofpremeditated murder and attempted murder andrejecting the second- degree murder and unpremeditated attempted murder options. The Court should reject such an argument. It is true that in the 67 pagesofinstructions submitted to the jury, fleeting reference to the phrase “heat ofpassion” wasburied in the instruction on 107 premeditation and deliberation. (CT 286;see also CT 294.) That instruction provided: All murder which is perpetrated by any kind ofwillful, deliberate and premeditated killing with express malice aforethought is murder ofthe first degree. The word "willful," as used in this instruction, meansintentional. The word "deliberate" means formed or arrived at or determined uponasa result of careful thought and weighing of considerations for and against the proposed course of action. The word "premeditated" means considered beforehand. Ifyou find that the killing was preceded and accompaniedbya clear, deliberate intent on the part of the defendantto kill, which was the result of deliberation and premeditation, so that it must have been formed uponpre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation,it is murderofthe first degree. The law does not undertake to measurein units oftime the length of the period during which the thought must be ponderedbefore it can ripen into an intent to kill whichis truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. _ The truetest is not the duration oftime, but rather the extent ofthe reflection. A cold, calculated judgment and decision maybearrived at in a short period oftime, but a mere unconsidered and rash impulse, even though it includes an intentto kill, is not deliberation and premeditation as will fix an unlawful killing as murder ofthe first degree. To prove that a killing was “deliberate and premeditated,”it is not necessary to prove that a defendant meaningfully and maturely reflected upon the gravity ofhisact. It is not necessary that premeditation and deliberation be directedat a specific individual, it may be directed at a group. 108 To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill. (CT 704, emphasis supplied; RT 3262- 3263; see also CALJIC No.8.20)” Further, in the limited context ofdetermining whether the crimes werefirst or second-degree murder(or attempted murder or attempted murder with premeditation), the court provided a modified version ofCALJIC No. 8.73, which made brief reference to the term “provocation” and provided as follows: If the evidence establishes that there was provocation which played a part in inducing an unlawfulkilling of a human being, you should consider the provocation for such bearing as it may have on whether a defendantkilled with or without premeditation and deliberation. (CT 712; RT 3268.) These were the only instructions provided on heat ofpassion and provocation. They did not define or explain the term “heat ofpassion”as it was used in CALJIC No.8.20, did not define or explain the term “provocation”as it was used in CALJIC No.8.73, did not explain or even suggest a relationship between “provocation” and “heat ofpassion,” and certainly did not suggest that heat of passion upon adequate provocation operates to negate malice as a matter of law. As this Court recognized in People v. Berry, 18 Cal.3d 509, the erroneous omission of instructions on voluntary manslaughterin the heat ofpassion is not rendered harmless by findings ofpremeditation under such instructions, even underthe far less stringent state law test for harmless error. As discussed in part B-1, above, in People v. Berry, supra, 18 Cal.3d 509, the Court held that the trial court committed prejudicial error in failing to provide instructions on voluntary manslaughter in the heat ofpassion and upon adequate provocation. Although the 23 Theinstruction provided was CALJIC No.8.20, modified to add the seventh and eighth paragraphs. 109 jury had convicted the defendantoffirst-degree, premeditated murder, the Court further held that the instructional error was prejudicial and required reversal. In so doing, the Court emphasized that although the murderinstructions: made passing reference to heat ofpassion and provocation for the purpose ofdistinguishing between murderofthe first and second- degrees, such reference was only casually made. There was no clear direction to the jury to consider the evidence of [the] course of provocatory conduct so as to determine whether defendant, as an ordinary man of average disposition [Citation] having been exposed to such conduct, was provoked into committing the homicide under a heat ofpassion. Therefore, we conclude that the jury’s determination that defendant was guilty ofmurderofthe first-degree underthe instructions given did not necessarily indicate that . . . the jury had found that defendant had notkilled [the victim] under a heat ofpassion. Since this theory ofprovocation constituted defendant’s entire defense to the [murder] count, we havenodifficulty concluding that the failure to give such instruction wasprejudicial error [even under the Watson standard for harmless error] and requires us to reverse the conviction ofmurderin thefirst degree. (People v. Berry, supra, 18 Cal.3d at p. 518.) (See also Conde v. Henry, supra, 198 F.3d at p. 740 [court’s misinstruction on immediate presence element ofrobbery violated due process; while correct statement of “immediate presence” requirement was provided to jury in same instruction, it was “buried in the ‘background definitions’” ofthe instruction and did not cure or render harmlessthe violation].) Here, as in Berry, brief references to the terms “heat ofpassion” and “provocation” were buried in 67 pagesofinstructions submittedto the jury. Also in Berry, “[t]here was no clear direction to the jury to consider the evidence of [the] course ofprovocatory conduct so as to determine whether defendant, as an ordinary man ofaverage disposition [Citation] having been exposed to such conduct, was provoked into committing the homicide under a heat ofpassion.” (People v. Berry, supra, 18 Cal.3d at p. 518.) Ifthe provision of essentially 110 identical instructions did not render harmless the omission ofvoluntary manslaughterinstructions underthe far less stringent state law standard for harmlesserror in Berry, afortiori they cannot render harmless the same error under the morestringent Chapman standard.” Nordid the arguments of counselfill the instructional gap. Remarkably, and as explained in moredetail in ArgumentIII, although the legal defense theory was that the boys did not premeditate due to the existence ofa heat ofpassion, counsels’ arguments focused almost exclusively on the issue ofprovocation. Apart from the prosecutor’s recitation ofCALJIC No.8.20, none ofthe attorneys ever even used the term “heat ofpassion,” much less made any attemptto explain, define, or apply it to the facts ofthis case or to explain its critical relationship to the “provocation”referredto in the instructions and argumentsorits relationship to the defendants’ mentalstate. Moreover, as explainedin detail in ArgumentIII, below, the prosecutor repeatedly misstated the law on the subject. Although he concededthatthe defendants were “upset” overthe assault on their mother (RT 3450), his argument also focused almost exclusively on the existence or non-existence of“provocation that reduces the crime from a willful, premeditated murder to a second-degree murder” (RT 3450) orthat “prevent[s] the person provoked from formingthe intent to kill as a process ofpremeditation and deliberation” (RT 3446). With respect to the kind ofprovocation “necessary” to “reduce” murder to second- degree murder, he insisted over objection that it must be actual, not perceived, and that it must come from the victim killed. (RT 3308, 3421, 3311, 3446-3449.) Therefore, the prosecutor argued, since the only arguable evidence ofprovocation was Watchman’sact of “hair pulling,” that evidence was legally irrelevantto the 24 The Court did not address whether, nor wasthere any indication that the appellant ever argued that, the error violated the federal constitution and therefore whether the Chapman standard applied. (People v. Gilbert (1969) 1 Cal.3d 475, 111 chargesinvolving all of the other victims. (RT 3311, 3446-3449.) Asto 99 66. Watchman’sact, he further argued that it was “insufficient” “provocation” because the question was what actually occurred and, in actuality, Watchman had merely pulled Ms. Souza’s hair. (RT 3308, 3421.) The boys’ actions in arming themselves, returning to the apartment, and shooting her, the prosecutor argued, was not a “reasonable” response to such a trivial act. (RT 3311, 3452-3453.) The prosecutor’s arguments in these regards were misstatements ofthe law relating to even a reasonableheat ofpassion; they were certainly gross misstatementsofthe legal principles applicable to unpremeditated second-degree murder committed in an unreasonableheat ofpassion (as discussed in more detail below). Underall of these circumstances, the jury’s verdicts simply do not demonstrate beyond a reasonable doubtthat it resolved the questions posed by the erroneously omitted instructions adversely to Matthew underother, properly given instructions or under a correct understanding ofthe law. (See Sullivan v. Louisiana, supra, 508 U.S.at p. 279.) 3. The jury’s verdicts do not prove beyond a reasonable doubt that it determined the shootings of Leslie Trudell, Beulah John, and Rodney James were intentional or that the omission of instructions as to those victims was harmless. Asto the killing of Leslie Trudell and the shootings ofBeulah John and Rodney James, Matthew recognizes that the jury convicted him on all counts of premeditated murder and attempted premeditated murder. From these verdicts, respondentwill likely argue that the jury rejected the factual scenario, discussed in part C-2, above, in which the perpetrator shot those victims unintentionally in the course of his reasonably impassioned shooting ofArnold and Watchman. Consequently, respondentwill likely argue that the erroneous omission of 482, n. 7 [“It is axiomatic that cases are not authority for propositions not 112 voluntary manslaughter instructions based on the theory that the shooting ofLeslie Trudell was unintentional was harmless beyond a reasonable doubt. Any such argument should berejected. The standard premeditation instruction was amendedto explain that it was “not necessary that premeditation and deliberation be directed at a specific individual, it may be directed at a group.” (CT 704; RT 3263.) As explained in greater detail in Argument IV below,this instruction was confusing and ambiguous and permitted the jurors to convict on the murder and attempted murder charges without necessarily finding that the shooter specifically intended to kill the people who were shot. The phrasethat intent to kill (or a premeditated intent to kill) need not be “directed at a specific individual” has been usedto refer to very different legal principles, some of which require an intent to kill a specific victim and some of which do not. It has been used to refer to what is now called a “concurrent intent” principle, under whichthe attacker specifically intendsto kill any and ail group members, but need not “pre-select” individuals to kill (see People v. Smith (1973) 33 Cal.App.3d 51, 65 [citing Sutic and Aranda, infra, which were transferred intent cases]; People v. Orabuena (1976) 56 Cal.App.3d 540, citing Smith, supra; see also People v. Bland, supra, 28 Cal.4” at p. 323). It has been usedto refer to a transferred intent principle, under which the actor’s premeditated intent to kill one person can “transfer” to an unintended victim. (People v. Sutic (1953) 41 Cal.2d 483, 491-492; People v. Aranda (1938) 12 Cal.2d 307, 310; In re Sergio R. (1991) 228 Cal.App.3d 588, 596 [citing Orabuena, supra, which was concurrent intent case].) It has even been used to support a reading ofthe intent element in the homicidestatutes (a reading that has been rejected) as requiring only the intent to kill “a person,” not necessarily the person killed, without resort to the transferred considered.”].) 113 intent doctrine (People v. Bland, supra, 28 Cal.4" at p. 323, citing Justice Mosk’s concurring opinion in People v. Scott (1996) 14 Cal.4™ 544, 554.) Giventhat the phrase has been used to apply to such differentprinciples,it seemsclear at the very least that the phrase is ambiguous. Applying the Chapman analysis to determine whetherthe failure to provide a voluntary manslaughter instruction as to Trudell was harmless beyond a reasonable doubt, the question then becomes whether the jury’s verdicts finding Matthew guilty ofthe premeditated murder and attempted premeditated murders of Trudell, John, and . Jamesnecessarily reflect findings that the perpetrator specifically intendedto kill each ofthose victims. The record does not support such a conclusion. It entirely possible that the jurors understood the ambiguousinstruction to mean that so long as the perpetrator intendedto kill one personin firing his weapon,that intent applied to any ofthe people who were shot, evenifthey were shot unintentionally or without an intentto kill those “specific individuals.” This possibility becomes even greater whenthe other instructions and argumentsare considered. The instructions on intent to kill spoke only in terms ofan intent“to kill” (CT 704; RT 3262),intent to “kill a human being” (CT 703, 705; RT 3263- 3264), intent to “kill another human being” (CT 707; RT 3265), and intent to “kill another person” (CT 707; RT 3265). They did not speak in terms of intending to kill the “person killed” or the “person injured”or the specific victims by name. As judges and commentators have observed in construing the same languagein the statutes, it is susceptible of a reading that the intent to kill element only requires an unlawful intent to kill “a human being,” not necessarily the person killed, or an “intent to kill a, not a specific, human being.’” (People v. Scott, supra, 14 Cal.4" 544, 554, conc. opn. ofMosk, J. [and authorities cited therein].) Hence,this reading achieves the sameresult as the transferred intent doctrine, being that the defendant need notintendto kill the deceased or injured victim so long as he intendedto kill someone in harmingor killing the victim. (Ibid; accord People v. Bland, supra, 28 Cal.4" at p. 323.) In other words, the language ofthe instructions 114 as a wholeis susceptible of a reading that — in colloquial terms — a shooter’s intent to kill follows his bullet, even ifthat bullet strikes an unintended victim. The arguments lend further support to the possibility that the jurors so understood the instruction. Because the prosecutor was emphatic that the shooter intended to kill each specific victim (going so far as to argue that he moved around the room and took careful aim at each victim, although noneofthe eyewitnesses even suggested as much), he never addressed the questionofliability ifthat hypothesis were not true. (RT 3283-3284, 3289-3290, 3442-3444.) However, Mr. Selvin — counsel for Michael — briefly argued that the shooter intended to shoot and to kill Dewayne Arnold andthat the other victims were unintended, having been struck accidentally by an inexperienced shooter who did not have control over his automatic weapon. (RT 3363.) Significantly, however, he conceded that the boys were guilty of second-degree murderasto all ofthe victims, even those shot unintentionally. (RT 3324-3328.) He explained, “whether[the shooter]’s actually firing at everybody or he’s firing at one and can’t control it and he’sfiring at the others, Jegally it doesn’t matter.” (RT 3363, emphasis supplied.) Evenifhe did not intend to kill all of the victims, “when he’sfiring, he has an intent to kill:” consequently, the shooter was guilty ofmurder even as to any unintendedvictims. (RT 3363-3364.) Counsel for Matthew never addressed whetherthe shootings of the other victims were intentional or unintentional nor did either defense attorney ever differentiate between the murder and attempted murder charges orspecially addressthe latter charges. (See RT 3317-3776, 3380-3423; see, e.g., People v. Brady (1987) 190 Cal.App.3d 124, 137 [arguments of defense counsel did not clarify potential ambiguity in instructions where defense counsel neveridentified critical issue for jury to resolve]; People v. Crandell (1988)46 Cal.3d 833, 885 [where no defense argument made, argumentofcounsel did not clarify misleading nature of instruction and prosecutor’s argument].) In sum, given the instructions and the argument as a whole, the jury may well have returnedits verdicts as to Trudell, John, and James based on a finding 115 that the perpetrator shot them with a premeditated intentto kill “a human being” — being Arnold and Watchman — but not those human beings. Hence, their verdicts do not prove that the trial court’s refusal to instruct on voluntary manslaughter as to Trudell based on a theory that he was shot unintentionally, in the course of the reasonably impassioned, intentional shootings ofArnold and Watchman, was harmless beyond a reasonable doubt. In any event, even ifthe jury necessarily foundthat all ofthe shootings were intentional, that does not mean that they would have rejected the alternative theory that the perpetrator shot them in a reasonable heat ofpassion because he reasonably associated them with the series of events that provoked his passion had they been properly instructed. (See Part Argument C-2, above; People v. Breverman, supra, 19 Cal.4® at pp. 149-152, 163; People v. Minifie, supra, 13 Cal.4" at pp. 1067-1068; People v. Bridgehouse, supra, 47 Cal.2d at p. 409-414.) In sum, none ofthe jury’s verdicts demonstrate beyond a reasonable doubt that they resolved the issues posed by the erroneously omitted instructions adversely to Matthew. Turning, then, to the evidence,it is beyond dispute that the errors were not harmless beyond a reasonable doubt. 4. Considering the evidence as a whole, respondent cannot prove beyond a reasonable doubt that the errors did not affect the verdicts. Once again, according to the prosecution’s theory, although Michael was the “leader” and the one “in command,” Matthew was the actual shooter. (RT 3292, 3298.) However, he argued that the distinction was irrelevant since the evidence established that the boys had an agreed uponplan to kill — likely “conditioned” upon encountering resistance from the apartment’s occupants — before arriving at the apartment. (RT 3290-3291, 3298, 3308-3309, 3312-3313.) Hence, both boys were equally guilty of all of the charged crimes and the 116 “multiple murder” special circumstance under an aiding and abetting theory. (Pen. Code § 190.2, subd. (c).) Asdiscussed in ArgumentI, it seems clear from the jury’s verdicts that it determined Matthew wasthe actual shooter. It is equally clear, however, that the jury rejected the prosecution’s theory that the boys had a premeditated plan to kill — even a “conditional” one — when they went to the apartment armed with weapons. Again, the jury found Michael guilty of the chargedfirst-degree murders and attempted murders with premeditation, but acquitted him ofthe multiple murder special circumstance allegation. (CT 739-751.) Ofcourse, the only additional requirement for the multiple murder special circumstance wasthat he intendedto kill in aiding and abetting the shootings. Again, during deliberations, the jurors specifically inquired into this requirement. (CT 659.) The court answeredtheir inquiry by explaining that the aider andabettor must intend to kill and such intent exists where “the purpose, plan, or goal, includes killing.” (CT 659.1) Thus,it is clear from the verdicts that the jurors concluded Michaeldid notintend to kill, but rather convicted him on the theory that the shooting was a “natural and probable consequence”ofthe assault with a firearm which he aided and abetted. (Pen. Code § 190.2, subd. (c); CT 697 [jurors instructed on liability for natural and probable consequences of aiding and abetting assault with a firearm].) Particularly since Michael was characterized as the “leader” — a characterization with compelling evidentiary support — it follows that the jurors determined that the boys’ original plan was only to commit an assault with a firearm and that Matthew only formedthe intent to kill in response to the suddenly developing situation they encountered at the apartment. Ashorrific and tragic the result, there was enormous room for doubt that this 18-year-old defendant with no criminal record or history ofviolence harbored malice when hepulled the trigger of his weapon. Matthew was barely more than a child when he was awakenedin the middle of the night by his mother who,byail accounts, had been the recent victim of an unprovokedact of brutality. According 117 to the prosecution’s own evidence, his mother was extremely upset, sobbing, and hysterical when she went hometo her sons. Sherecalled telling them that she had been beaten and the circumstantial evidence strongly indicated that she told them a group ofpeople at Watchman’s apartment had beaten her and stolen her purse, and that they believed her. The boys were understandably quite upset by her appalling story and appearance. Far from allowing them timeto “cool,”their mother’s unceasing “hysteria” as they drove around looking for Watchman’s apartment(at her insistence) could only have further stoked the flamesoftheir passion. Whenthe boys entered the apartment, Michael furiously and repeatedly demanded to know whohad “beaten”their mother and “stolen” her purse. The intensity of the situation only escalated. Watchman responded by ordering them to “get the hell out ofmy house.” Dewayne Arnold, a large man who no doubt was emboldened by the extraordinary amount ofalcohol and methamphetaminein his system, demanded “what the fuck was going on,” stood up, and a physical confrontation occurred between the two men during which a lamp was knocked over with a loud crash and a single shot wasfired from their location. The next roundofrapidly fired shots explodedin the midst ofthis violent and terrifying confusion. A total of 14 .223 caliber bullets were fired, striking Arnold seven times and Watchman three times. Three people behind Watchman and Arnold, James, John, and Trudell, who werestruck once, once, and twice, respectively. In sum, there was compelling evidence that the perpetrator was reasonably provoked to passion and committed the shooting in the heat ofit. While the prosecutor argued that the boys’ conduct following the shooting evidenced calm deliberation (RT 3313-3314), this Court has held that a defendant’s post-crime conductis “irrelevant to ascertaining defendant’s state of mind immediately before, or during, the killing.” (People v. Anderson, supra, 70 Cal.2d at p. 32 [defendant’s effort to “cover up” killing irrelevant to whether killing premeditated and deliberate or committed in state of “explosive” passion]; accord Peoplev. Jiminez, supra, 95 Cal.App.2d 840, 842-843 [post-crime conduct, 118 including flight, insufficient to prove premeditation]; Austin v. United States (1967 D.C. App. Ct.) 382 F.2d 129, 139-140 [premeditation and deliberation “is manifestly not established beyond a reasonable doubt by evidence showing that (the defendant) acted with deliberation afterward, in an effort to avoid detection and punishment... .”].) Similarly, while the prosecutor emphatically argued that the numberofgunshot woundsto the victims proved a cold-blooded killing (RT 3280, 3281, 3441), the Court has consistently recognized that, “[a]bsent other evidence, a brutal mannerofkilling is as consistent with a sudden, random ‘explosion’ofviolence as with calculated murder.” (People v. Anderson, supra, 70 Cal.2d at p. 25; accord People v. Alcala (1984) 36 Cal.3d 604, 626; People v. Birreuta, supra, 162 Cal.App.3d at p. 462, n. 6 [evidence supported finding of killings in sudden quarrel or heat ofpassion where defendant shot wife six times and a second woman four times].) Thus, the facts that Arnold was shot seven times and Watchman shot three times was completely consistent with the perpetrator having been reasonably provokedinto a heat ofpassion directed toward them. Asto the shootings ofLeslie Trudell, who was shot twice, and Rodney James and Beulah John, who were each shot only once, the evidence discussed in part C-2 strongly suggested that they were the unintentional byproducts ofthe explosion ofviolence directed toward Armold and Watchman. While the prosecutor made muchofthe locations ofthe bloodstains “all around the room”to argue that the shooter must haveintentionally shot each individual victim, the evidence simply did not support his position. (RT 3283-3284, 3444.) The bloodstains corresponded to Trudell’s and James’s positions immediately behind the couch when they were shot, in the firing line ofArnold and Watchman. (People’s Exhibits 31 and 33; Deft. A’ Exhibit H.) The only bloodstain that was not directly behind the couch was located on the kitchen floor, which appears from the photographsto have been only twoor three feet from the kitchen table. (People’s Exhibit 33; Deft. A’s Exhibit H.) 119 According to Beulah John, she was:sitting at the kitchen table, located directly behind the couch, when she was shot. (RT 2523-25254, 2529-2530; Deft. A’s Ex. A.) While John could not recall anything between the time that she was shot and being transported by ambulanceto the hospital, Martin Jones recalled seeing John take a few steps after the shooting ceased. (RT 2348.) She did eventually end up on the kitchen floor, where both Victoria Gonzalez and Lea Coss saw her. (RT 2693-2694, 2745.) Hence, the clear inference to be drawn from all ofthis evidence was that John was in the sameline offire at the kitchen table when she wasshot, after which she took a step or to into the kitchen, where she lay down and bled, accounting for the bloodstain at that location. In addition to the number of gunshot wounds,the prosecutor also argued that the locations of the woundsproved that the victims wereall shot intentionally. In makingthis argument, the prosecutor misstated the evidence in both respects. Although he arguedthatall ofthe victims were shot in vital spots, rather than in the legs or other extremities (RT 3441),in truth, Beulah John was shotin the leg and Rodney James wasshotin the arm or shoulder. (RT 2270, 2437, 2523, 2744- 2745.) Similarly, although the prosecutor argued that John and James were each shot twice (RT 3292, 3441-3442), each was shot only once. (RT 2270, 2437, 2523, 2557, 2568-2569.) In fact, contrasted with the numberandlocationsofthe gunshot wounds to Arnold and Watchman,the numberand locations of the woundsto the other victims supports, rather than undermines, the inference that they were shot unintentionally in the course of shooting Arnold and Watchman. Finally, the fact that several other people in the room who werenotin the line of fire were not shot lends strong support to the inference that the people who were in the line offire were not shot intentionally. In any event, for all ofthe reasons discussed above, evenif all of the shootings were intentional, there was compelling evidencethat they wereall committed in a reasonable heat ofpassion. At the very least, the evidence that the shootings were not committed in a reasonable heat ofpassion was not “so 120 overwhelming as to leave it beyond a reasonable doubt that the verdictresting on that evidence would have been the same in the absence”ofthe error. (Yates v. Evatt, supra, 500 U.S.at p. 405; see also Peoplev. Rios, supra, 23 Cal.4"at pp. 450, 462 [where issue properly presented, prosecution must prove beyond a reasonable doubtthat killing was not committed in reasonable heat ofpassion in order to prove malice]; Mullaney v. Wilbur, supra, 421 U.S. at pp. 698-699.) Because the Court cannot determine beyond a reasonable doubtthat that the verdicts were surely unattributable to the erroneous omission ofvoluntary manslaughter and attempted voluntary manslaughter instructions, the judgment must be reversed. (Sullivan v. Louisiana, supra, 508 U.S.at p. 579.) 121 Il. THE CUMULATIVE EFFECT OF THE OMISSION OF CRITICAL INSTRUCTIONS ON HEAT OF PASSION AND PROVOCATION AND THEIR RELATIONSHIP TO PREMEDITATION ALONG WITH THE PROSECUTOR’S REPEATED MISSTATEMENTSOF THE APPLICABLE LEGAL PRINCIPLES VIOLATED STATE LAW AND MATTHEW’S FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, TO PRESENT A DEFENSE, AND TO A RELIABLE GUILT PHASE DETERMINATION AS GUARANTEED BY THE FIFTH,SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS. A. Introduction. Thefirst-degree murder charges and premeditated, attempted murder charges required the prosecution to prove beyond a reasonable doubt that the perpetrator harbored malice and premeditated the shootings. (Pen. Code §§ 664, 187, 189.) As discussed above, defense counsel requested instructions on the lesser-included offense ofvoluntary manslaughter in a reasonable heat ofpassion, but the court denied the request as to all but one count because it believed that provocation must come from the victim killed or injured. (CT 587-591.) In the alternative, counsel for both brothers explained that their defense theory was that the evidence ofheat ofpassion and provocation nevertheless raised reasonable doubt that the boys premeditated and deliberated and therefore were guilty ofthe lesser-included offense of second-degree murder. Counsel argued that even ifprovocation must come from the victim in order to reduce murder to manslaughter, there is no such limitation on the kind ofprovocation relevant to the question ofwhether premeditation exists. (RT 2954-2957, 2959- 2962, 3184-3185.) Hence, on the theory that the boys committed the shooting in a heat of passion, whichis inconsistent with premeditation and deliberation, counsel requested instructions on the lesser-included offense of second-degree murder and 122 on the relevance ofprovocation evidence with CALJIC No.8.73 as to all counts. (RT 2954-2957, 2959-2962, 3184-3185.) The prosecutor emphatically argued that provocation must come from the victim not only to reduce murder to manslaughter but also to “reduce”first-degree murder to second-degree murder, and therefore requested instructions limiting the jury’s consideration of the evidence to the Regina Watchman charge. (RT 2958, 3183; CT 12733-12734.) The court disagreed, reasoning that the jury could consider any evidence ofprovocation on the question of whetherthe shooter premeditated and deliberatedall ofthe killings and any attempted killings. (RT 3185-3186.) Hence, concluding that there was substantial evidence from which the jurors could find that the shootings were not premeditated, the trial court instructed the jury on second-degree murderas lesser-included offenses to the charged murders. (CT 705; RT 3263-3264.) In addition, the court provided a modified version ofCALJIC No. 8.73, which informedthe jurors, “[i]fthe evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, you should consider the provocation for such bearing as it may have on whether a defendant killed with or without premeditation and deliberation.” (CT 712; RT 3268.) Finally, as noted in ArgumentIT, above, with respect to passion and premeditation,the trial court provided only the standard premeditation instruction, CALJIC No. 8.20, which madefleeting, unadorned reference to the term “heat of passion.” (CT 704, RT 3262-3263.) However, rather than tailoring the requested instructions on voluntary manslaughter in a reasonable heat ofpassion to conform to the defense theory of second-degree murder in an unreasonable (or subjective) heat ofpassion, the court simply omitted them in their entirety. Hence, the jury instructions did not define or explain the terms “heat ofpassion”or “provocation” and explain the relationship between the two termsandtheir dual relationship to the element of premeditation and deliberation. 123 As fully explained below, by refusing the instructions on voluntary manslaughter in the heat ofpassion in their entirety rather than tailoring them,the instructions provided were woefully inadequate to explain the critical legal principles underlying the boys’ defense that the shootings were committed in a subjective state ofpassion, and therefore not with premeditation, in violationof state law and Matthew’s constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Atthe very least, the instructions were incomplete, ambiguous, and potentially misleading with regard to the applicable law and the scope ofthe evidence the jury could consider in assessing whether the state had proved premeditation beyond a reasonable doubt. That potential to mislead was realized through the prosecutor’s repeated misstatements ofthe applicable law, which included, inter alia, misstatements that the “provocation”referred to in CALJIC No.8.73 must comefrom the victim killed or injured, that provocation must be actual rather than perceived, and that any lethal response to such provocation must be “reasonable”in order to “reduce” the crime to second-degree murder. Becauseit is reasonably likely that the jurors in this capital case were misled regarding the law applicable to the critical premeditation element, to the only lesser-included offense option available to them, and to Matthew’s primary defense theory, as well as to the scope of constitutionally relevant evidence that they could considerin resolving thecritical questions posed bythis case, the errors violated state law as well as Matthew’s Fifth, Sixth, Eighth, and Fourteenth Amendmentrights. Finally, because respondent cannot prove the error harmless beyonda reasonable doubt, the judgment mustbe reversed. B. The General Legal Principles Regarding Instructions, Arguments, And TheInterplay Between The Two. 1. Thetrial court’s instructional obligations. 124 Asdiscussed in ArgumentII, it is well established under California law that “even in the absence of a request, a trial court must instruct on the general principles oflaw relevant to the issues raised by the evidence.” (People v. St. Martin (1970) 1 Cal.3d 524, 531; accord, e.g., People v. Wickersham, supra, 32 Cal.3d at p. 324.) “The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. [Citations.]” (People v. Wilson, supra, 66 Cal.2d at p. 759.) Included within this sua sponte instructional obligation is the duty to instruct on lesser-included offenses whenever the “evidence raises a question as to whetherall ofthe elements ofthe charged offense were present ... .“ (Peoplev. Breverman,supra, 19 Cal.4” at p. 154.) In this regard, the court must provide complete and accurate instructions on “all theories” of a lesser-included offense. (Id. at p. 162; People v. Wilson, supra, 66 Cal.2d at p. 759 [trial court erred where it instructed on lesser-included offense ofmisdemeanor manslaughter but failed to instruct sua sponte on misdemeanorbasis for manslaughter theory, being brandishing and its elements].) Given the need for heightenedreliability in capital cases,a trial court’s instructional obligations are greater in such cases. (Beck v. Alabama, supra, 447 USS. at p. 637-638.) Hence, the federal constitution also guarantees capital defendants the right to complete and accurate instructions on lesser-included offenses supported by the evidence. (Ibid.) This guarantee applies evenifthe jury retains discretion at sentencing to imposea sentence less than death. (Hooks v. Ward (10 Cir. 1999) 184 F.3d 1206, 1227; see also Beck v. Alabama,supra,at p. 629 [judge retained discretion to review jury’s sentence of death and imposelife imprisonment].) Furthermore, as discussed in ArgumentII-B, the Fifth, Sixth, and Fourteenth Amendments require thetrial court to provide factually supported instructions on the accused’s theory of defense upon request. (See, e.g., Condev. 125 Henry, supra, 198 F.3d 734, 739-740; Bashor v. Riley (9™ Cir. 1984) 730 F.2d 1228, 1240.) Becauseit is the trial court’s ultimate responsibility to ensure that the jury is instructed correctly, such instructions must be complete and accurate. (See, e.g., People v. Wickersham,supra, 32 Cal.3d at p. 326; People v. Bolden (1990) 217 Cal.App.3d 1591, 1597; United ‘States v. Sayetsitty (9 Cir. 1997) 107 F.3d 1405, 1411-1414 [wheretrial counsel requested general intoxication instruction, but not instruction specifically relating intoxication to aiding and abetting liability, trial court erred in failing to provide such instruction on own motion]; Bashor v. Risley, supra, 730 F.2d at p. 1240 [due process entitles defendant to adequate instruction on his or her theory of defense].) Thus, even ifthe trial court is not under a sua sponte duty to give a particular instruction, once it agreesto instruct on a particular legalprinciple in support of a defense theory,it must to do so accurately and completely. (See,e.g., People v. Castillo (1997) 16 Cal.4" 1009, 1015 [although no sua sponte duty to instruct on voluntary intoxication, once trial court does so,it has obligation to do so correctly; if instructions were misleading to the extent that they caused jury to believe it could not consider such evidence onthe issue ofpremeditation, it would amountto trial court error even in absence of request or objection]; People v. Montiel (1993) 5 Cal.4" 877, 942 [“though there is no sua sponte duty at the penalty phaseto instruct on the elements of ‘other crimes’ introduced in aggravation (citation), when such instructions are given, they should be accurate and complete”]; People v. Cummings, supra, 4 Cal.4" at p. 1337; People v. Malone (1988) 47 Cal.3d 1, 49.) If the court perceives that requested instructions are incorrectin part, it must tailor the instructions to conform to the defense theory rather than deny them outright. (See, e.g., People v. Falsetta (1999) 21 Cal.4 903, 924; People v. Fudge (1994) 7 Cal.4 1075, 1110; People v. Malone,supra, 47 Cal.3d at p. 49; People v. Jeffers (1996) 41 Cal.App.4™ 917, 924-925; People v. Brady, supra, 190 Cal.App.3d 124, 136 [trial “court must correct (perceived) 126 defects in proffered instructions wherethe nature ofthe defendant’s theory is madeclear to it.””]; United States v. Newcomb (6Cir 1993) 6 F.3d 1129, 1 132.) 2. The prosecutor’s duties. With respect to the duty of the prosecutor,it is not to secure convictions but rather to ensure that justice is done and that the defendant receives a fair and impartial trial. (Berger v. United States (1934) 295 U.S. 78, 88; In re Ferguson (1971) 5 Cal.3d 525, 531; N. MarianaIslands v. Bowie (9" Cir. 2001) 243 F.3d 1109, 1116.) For these reasons, “prosecutors are subject to constraints and responsibilities that don’t apply to other lawyers.” (United States v. Kojayan (9" Cir. 1993) 8 F.3d 1315, 1323, citing Berger, supra; accord People v. Espinoza (1992) 3 Cal.4™ 806, 820 [a prosecutoris held to a standard higher than that imposed on other attorneys because heor she exercises the sovereign powerofthe state].) For the same reasons, “juries very properly regard the prosecuting attorney as unprejudiced, impartial and nonpartisan, and statements made by him are apt to have great influence.” (People v. Perez (1962) 58 Cal.2d 229, 247; accord Berger v. United States, supra, at p. 88; People v. Brophy (1954) 122 Cal.App.2d 638, 652, People v. Talle (1952) 111 Cal-App.2d 650, 677.) Given these truths, under both state and federal law,it is serious misconduct for a prosecutor to misstate the law in closing argumentto the jury. (People v. Hill (1998) 17 Cal.4™ 800, 829-830; People v. Marshall, supra, 13 Cal.4" at p. 831; People v. Bell (1989) 49 Cal.3d 502, 538; People v. Nguyen (1995) 40 Cal.App.4” 28, 35-37; United States v. Rodrigues (9 Cir. 1999) 170 F.3d 881; United States v. Artus (9" Cir. 1979) 591 F.2d 526, 528.) Furthermore, because one hallmarkofa fair jury trial and a reliable verdictis that the jurors focus on the vital factual and legal issues presented by the case(see, e.g., Shannon v. United States (1994) 512 U.S. 573, 579; United States v. Layton (9" Cir. 1985) 767 F.2d 549, 556; In re Rodriguez (1981) 119 Cal.App.3d 457, 467), 127 prosecutorial argumentthat serves to distract or confuse the jury or becloud the principal issues is improper. (See, e.g., People v. Edwards (1991) 54 Cal.3d 787, 835-836; Aliwoli v. Carter (7 Cir. 2000) 225 F.3d 826, 829-830, cert. denied 531 U.S. 1167 (2001); Arrieta-Agressot v. United States (1* Cir. 1993) 3 F.3d 525, 529.) 3. Theinterplay between instructions and argument. Even instructionsthat “are not crucially erroneous, deficient or misleading on their face, may becomeso undercertain circumstances.” (People v. Brown (1988) 45 Cal.3d 1247, 1255.) For instance, even standard and generally correct instructions may be incomplete or potentially ambiguousifthey are not responsive to the evidence. (See, e.g., People v. Bolden, supra, 217 Cal.App.3d at p. 1603; People v. Nguyen (1988) 204 Cal.App.3d 181; People v. Brady, supra, 190 Cal.App.3d at pp. 134-137.) Such instructions may be misleading when considered with the prosecutor’s argument, even if that argumentis not patently incorrect or improper. (People v. Brown,supra, at p. 1255; see also People v. Claire (1992) 2 Cal.4" 629, 663; People v. Lucero (1988) 44 Cal.3d 1006, 1031 and n.15 [“our concern is not with the ethics ofthe prosecutor or the performance ofthe defense, but with the impact ofthe erroneous interpretation of the law on the jury”]; People v. Edelbacher, supra, 47 Cal.3d at p. 1035 and n.16 [because prosecutor’s argument exacerbated instructional error, unnecessary to resolve whether argument amounted to misconduct to which objection ordinarily necessary to preserve]; Taylor v. Kentucky (1978) 436 U.S. 478, 486-490 and 14 [despite provision of generally adequate and correct instructions on prosecution’s burden ofproof, refusal to provide requested instructions on presumption of innocence andprohibition against considering indictment as evidence was errorin light of prosecutor’s argument, regardless ofwhether the “prosecutorial comments, standing alone, would rise to the level ofreversible error . . . [because] 128 they are relevant to the need for carefully framed instructions designed to assure that the accused be judged only on the evidence”’].) Whereit is reasonably likely that “the interplay of argument and individually proper instructions produced a distorted meaning”ofthe applicable legal principles, error has occurred under state law. (People v. Brown,supra, at p. 1255-1256; accord People v. Claire, supra, at p. 663; People v. Edelbacher, supra, 47 Cal.3d at pp. 1035-1040 [combination ofpotentially ambiguousinstruction and potentially misleading but not necessarily incorrect argumentby the prosecutor created a reasonable likelihood jurors were misled]; People v. Crandell, supra, 46 Cal.3d at pp. 882-885 [same]; People v. Brady, supra, 190 Cal.App.3d at p. 137.) Whereit is reasonably likely that the jury was misled to believe that it could not consider constitutionally relevant evidence (Boyde v. California (1990) 494 U.S. 370, 380), or that it applied the instructions in some other waythat violated the constitution (Estelle v. McGuire (1991) 502 U.S. 62, 71-72),the error is also one of federal constitutional dimension. (See also, e.g., People v. Roder (1983) 33 Cal.3d 491, 503-504, and n. 13 [combination ofpotentially ambiguousinstruction on presumption and prosecutor’s argument misstating the legal principles addressed therein created reasonable likelihood ofmisunderstanding and amounted to constitutional error]; Belmontes v. Woodford (9" Cir. 2003) 350 F.3d 861, 900-907.) Cc. The Legal Principles Applicable To Second-Degree Murder InA Subjective Or Unreasonable Heat Of Passion. Ofcourse, in order to assess the propriety of instructions and/or argument, it is necessary to “ascertain at the threshold what the relevant law provides.” (People v. Warren (1988) 45 Cal.3d 471, 487.) Both first and second-degree murder require malice aforethought. (Pen. Code § 187.) The difference between the two crimesis that the former requires the additional element ofpremeditation 129 and deliberation (or murder by some specified means). (Pen. Code § 189.) State law and the federal constitution impose on the prosecution the burden or proving the elements ofmalice and premeditation and deliberation beyond a reasonable doubt. (Pen. Code § 189; see, e.g., People v. Anderson, supra, 70 Cal.2d at p. 25; United States v. Gaudin, supra, 515 U.S.at p. 510; Sullivan v. Louisiana, supra, 508 U.S.at pp. 267-278.) Asdiscussed at length in ArgumentII, malice is negated when both the subjective and objective componentsofheat ofpassion are satisfied. (See, e.g., People v. Gutierrez, supra, 28 Cal.4™ at p. 1044.) The objective component requires “provocation”in the sense that a reasonable person would be provoked into a state ofpassion underlike circumstances. (See, e.g., People v. Breverman, supra, 19 Cal.4" at p. 163.) The subjective componentis satisfied where the defendant actually killed in the heat of“passion,” a shorthand reference to “hot blood,” “hot anger,” or any other “‘violent, intense, high-wrought, or enthusiastic emotion’ [Citation], other than revenge. [Citation].” (People v. Breverman, supra, 19 Cal.4” at p. 163; People v. Steger (1976) 16 Cal.3d 39, 547; People v. Bender (1945) 27 Cal.2d 164, 178-179; People v. Taylor (1961) 197 Cal.App.2d 372, 380.) Where only the subjective prongis satisfied, the crime is murder, but only second-degree murder. This is so because the subjective mental state of heat of passion is inconsistent with, or prevents, premeditation and deliberation. (People v. Wickersham, supra, 32 Cal.3d at p. 329; People v. Valentine, supra, 28 Cal.2d at p. 132; People v. Bender, supra, 27 Cal.2d at pp. 178-179, 184-186 [killing perpetrated by “violent act on the spur of a moment during hot anger”is inconsistent with premeditation and deliberation; where evidence demonstrated such killing but no evidence ofprovocation to negate malice, Court reduced crime from first to second-degree murder]; People v. Sanchez (1864) 24 Cal. 17; People v. Padilla, supra, 103 Cal.App.4® 675 [ifhallucination incites defendantto kill in a state ofpassion, there is not adequate “provocation” to negate malice; 130 nevertheless, the defendant’s subjective state ofpassion would “negate” premeditation and reduce first-degree murder to second-degree]; People v. Fitzpatrick (1992) 2 Cal.App.4" 1285, 1295; People v. Thompkins (1987) 195 Cal.App.3d 244, 251.) In orderto differentiate from the other ways in which to raise reasonable doubt on the element ofpremeditation, and since the heat of passion necessary to negate malice and reduce murder to manslaughter must be a reasonable one,this theory of second-degree murder mayproperly be described as “unreasonable heat ofpassion” or“subjective heat of passion.” So understood,the critical question is whether the actor committed the killing in an actual state of impulsive “passion.” In making this assessment, “a defendant is entitled to have the jury take into considerationall the elements in the case which might be expected to operate on his mind,”including anything that might have “provoked”his passion. (People v. Smith, supra, 151 Cal. at p. 628; accord People v. Minifie, supra, 13 Cal.4" at p. 1064; People v. Bridgehouse, supra, 47 Cal.2d at p. 410.) In other words, while the existence of someoneelse’s conduct, or “provocation,” is highly relevantto this question, it is not necessary to demonstrating a subjective heat ofpassion inconsistent with premeditation. (See, e.g., People v. Wickersham, supra, 32 Cal.3d. at p. 327, 329 [evidence would have supported second-degree murder under unreasonableheatofpassion theory where there was substantial evidence killing committed in hot blood, yet “virtually no” evidence ofprovocation]; People v. Valentine, supra, 28 Cal.2d at pp. 131-135 [killing in heat ofpassion inconsistent with premeditation, to which evidence of even slight provocation is relevant; instruction to contrary erroneous]; People v. Padilla, supra, 103 Cal.App.4™ 675 [if defendant was provoked to passion based on his own hallucinations, it would not satisfy objective component for voluntary manslaughter, but would satisfy subjective component to show heat ofpassion and negate premeditation]; In re Thomas C., supra, 183 Cal.App.3d at p. 794 [while defendant’s depressed mentalstate anddistress over family problems supported finding of subjective heat ofpassion,it did not amount to adequate provocation 131 under objective reasonable persons standard;trial court correctly concluded defendant’s mental state inconsistent with premeditation and therefore guilty of second-degree murder, but did not negate malice to reduce to voluntary manslaughter]; People v. Webb (1956) 143 Cal.App.2d 402, 423 [in resolving whether evidence wassufficient to prove premeditation rather than impassioned killing, “the evidence ofprovocation is relevant but not decisive. It is a factor, but not a conclusive factor, that should be considered on the issue ofpremeditation”]; see also People v. Anderson, supra, 70 Cal.2d at p. 28 [killing in heat ofpassion or “explosion ofviolence”is inconsistent with premeditation without regard to existence or non-existence ofprovocation]; People v. Pensinger (1991) 52 Cal.3d 1210, 1239 [same].) Giventhat the critical question is the defendant’s subjective mental state, the jury can consider anything that could have provoked the defendant’s passion; put another way,the jury can consider any evidencethat the defendant “formed the intent to kill as a direct response to” a particular act or event and “acted immediately” to carry it out. (People v. Wickersham, supra, 32 Cal.3d at pp. 327, 329 [where there was “virtually no evidence” ofprovocation, jury could nevertheless find that defendant formedtheintent to kill immediately and only in response to victim’s attempt to grab defendant’s gun and therefore the evidence wassufficient to warrant instructions on second-degree murder under an unreasonable heat ofpassion theory as well as on the relevance ofprovocation evidenceto that theory].) The kind ofrelevant provocation evidence that can and should be considered in this context obviously need not be ofa character sufficient to amount to “adequate provocation”in the voluntary manslaughter context, since otherwise there would be no distinction between murder and manslaughter. (People v. Fitzpatrick, supra, 2 Cal.App.4” at p. 1295; accord People v. Wickersham, supra, 32 Cal.3d at p. 32; People v. Valentine, supra, 28 Cal.2dat pp. 131-135; People v. Thomas (1945) 25 Cal.2d 880, 886; People v. Padilla, supra, 103 Cal.App.4" at p. 678.) 132 For instance, even assuming arguendo that provocation must come from the victim in order to establish reasonable heat ofpassion under section 192, there is no such limitation on the kind of relevant provocation evidencethat the jury can and should consider in determining whether the defendantkilled in the heat of an “unreasonable”heat ofpassion. Noris there a threshold requirement that provocation must actually have occurred or even that the defendant must reasonably believe it occurred. If there is any evidence that the defendant believed, even if unreasonably, that a particular event occurred and formed the intent to kill in an emotional responseto it, the jury can and should considerthat evidence in deciding whetherthe killing was premeditated or committed in a fit of passion. (See, e.g., People v. Padilla, supra, 103 Cal.App.4” 675 [defendant’s hallucinations can and should be considered in assessing whether defendant committed first-degree murder with premeditation or second-degree murderin subjective heat ofpassion;trial court committed prejudicial error in excluding such evidence].) The Court has recognized that the exchange of“heated words,” a struggle, or even the victim’s otherwise reasonable act of grabbing the defendant’s gun, immediately before the killing is highly relevant to the question ofwhether the defendantkilled in a subjective state ofpassion and therefore whether he premeditated and deliberated. (People v. Wickersham, supra, 32 Cal.3d at p. 329.) Finally, pursuant to the foregoing authorities, where the defendantis charged with first-degree premeditated murder and there is evidence that the killing was committed in an unreasonable or subjective heat of passion,it “raises a question as to whetherall ofthe elements ofthe charged offense were present. . . ““ (People v. Breverman, supra, 19 Cal.4™ at p. 154.) Hence, state law imposes uponthetrial court a sua sponte obligation to provide “instructions on second- degree murder underthis theory.” (People v. Wickersham, supra, 32 Cal.3d at p. 329; accord People v. Breverman, supra, 19 Cal.4" at pp. 60, 162; People v. Wilson, supra, 66 Cal.2d 749, 759.) In a capital case, the federal constitution also mandates accurate and complete instructions on this theory of lesser-included 133 offense where supported by the evidence. (See Beck v. Alabama, supra, 447 U.S. at pp. 637-638.) Furthermore, where the defense theory is that the defendantis guilty of second-degree murder in an unreasonable heat ofpassion and he requests instruction thereon, the federal constitution also entitles him to complete and accurate instructions on that theory of defense. (See, e.g., Conde v. Henry, supra, 198 £.3d at pp. 739-740; United States v. Sayetsitty, supra, 107 F.3d at p. 1414.) That is, the court must completely and accurately instruct the jury that heat of passion negatives premeditation and deliberation and therefore a killing committed in a heat ofpassion is second-degree murder. With respect to the separate but related question of instructions on the relevance ofprovocation evidence to the defendant’s mentalstate, this Court has issued conflicting decisions as to whetherthe trial court is required to provide such instruction sua sponte. (Compare People v. Mayfield (1997) 14 Cal.4™ 668, 678 [no sua sponte duty]; People v. Johnson (1993) 6 Cal.4" 1, 43 [sua sponte duty]; see also People v. Steele, supra, supra, 27 Cal.4® at p. 1250 [recognizing but declining to resolve conflict].) Nevertheless, it is clear that where instruction on this principle is supported by substantial evidence and the defendant requestsit in support of his defense theory,the trial court is required to provide it. (See,e.g., People v. Saille (1991) 54 Cal.3d 1103, 1120; People v. Mayfield, supra, 14 Cal.4™ at p. 778 see also Bashorv.Risley, supra, 730 F.2d at p. 1240.) And, of course, once the court agrees to provide instructions in support of a defense theory, it must do so accurately and completely. (See, e.g., People v. Castillo, supra, 16 Cal.4" at p. 1015; People v. Montiel, supra, 5 Cal.4" at p. 842; People v. Cummings, supra, 4 Cal.4™ at p. 1337; People v. Malone, supra, 47 Cal.3d atp. 49; United States v. Sayetsitty, supra, 107 F.3d at p. 1414.) With theselegal principles in mind, Matthew nowturnsto the facts ofthis case. D. The Trial Court Violated State Law And The Federal Constitution By Failing To Provide Complete And Accurate Instructions On The Defense Theory That Matthew Was Guilty 134 ui Tbe Lesser-inciuded Ofiense Of Second-Degree Murder Due To An Unreasonable Heat Of Passion. Asexplainedin detail in Argument II-C, there was substantial evidence that the shooting was committed in a subjective heat ofpassion which was direct and immediate responseto, or “provoked”by, the series of events precedingit. Trial counsel thus requested instructions on voluntary manslaughter in a reasonable heat ofpassion, as well as on second-degree murder under an unreasonable or subjective heat ofpassion theory and on the relevance ofprovocation evidence to support that theory. (RT 2947, 2954-2957, 2959-2962, 3184-3185; CT 587-591.) Thetrial court agreed that there was substantial evidence that the shootings were committed in a subjective heat ofpassion and therefore instructed the jury on the lesser-included offense of second-degree murder. (CT 705; RT 3263-3264.) The court also agreed that relevant provocation evidencein this context need not comefrom the victim and therefore instructed the jury, over the prosecution’s objection, that it could consider evidence ofprovocation in determining whether the shootings were premeditated, withoutlimiting the jury’s consideration ofthat evidenceto a particular victim. (RT 3185-3186, 3268; CT 712.) As discussed above,thetrial court refused the voluntary manslaughterinstructionsas toall of the victims other than Regina Watchman becauseit concluded that the doctrine wasinapplicable as a matter of law as to the other victims. (RT 2947-2948.) However,ratherthan tailoring those instructions to conform to the defense theory of second-degree murderin an unreasonable or subjective heat ofpassion, the court simply rejected them in their entirety. Asnoted in the above Introduction, with respect to passion and premeditation,the trial court provided only the standard premeditation instruction, CALJIC No. 8.20, which madefleeting, unadorned reference to the term “heat of passion.” (CT 704, RT 3262-3263.) The court also delivered a modified version ofCALJIC No. 8.73, which provided, “If the evidence establishes that there was 135 provocation which playeda part in inducing an unlawful killing of a human being, you should consider the provocation for such bearing as it may have on whether a defendantkilled with or without premeditation and deliberation.” (CT 712; RT 3268.) Unfortunately, these instructions did not explain or define the term “heat ofpassion” in CALJIC No. 8.20, did not explain or define the term “provocation” in CALJIC No.8.73, and — most critically — did not explain the critical relationship between the two termsortheir dual relationship to the element premeditation. Such instructions werevital to the jurors’ understandingofthe boys’ defense theory. In this regard, the standard, unmodified version of CALJIC No. 8.73 providesas follows: Ifthe evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation wasnot sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whetherthe defendant killed with or without deliberation and premeditation. (CALJIC No. 8.73, emphasis supplied.) It is clear from the face ofCALIC No.8.73 in its standard form that it presupposes that instructions on voluntary manslaughterin the heat ofpassion have been provided andis intended to supplementthose instructions. Of course, the standard voluntary manslaughter instructions explain the meanings ofthe terms “heat of passion” and “provocation”andthecritical relationship between the two terms and their relationship to the element ofmalice. (See CALJIC Nos. 8.42, 8.43, 8.44.) Thus, in the typical case, contemplated by the face ofCALJIC No.8.73,these instructions combined with CALJIC Nos. 8.20 and 8.73 are generally sufficient to apprisethe jurorsofthe legal principles applicable to second-degree murder under an unreasonable or subjective heat ofpassion theory. (See, e.g., People v. Steele, supra, 27 Cal.4" 1230-1251 [where jury was provided with CALJIC No.8.20 and instructions on voluntary manslaughterin the heat of passion, there was no 136 prejudicial error in failing to elaborate on meaning ofterm “heat ofpassion”in CALJIC No. 8.20].) Without such instructions, however, the jury is left with no guidance as to 99 66.the meaning ofthe terms “heat ofpassion,” “provocation,” andtheir critical relationship to each other andto the element ofpremeditation. Ofcourse,Asthis Court has recognized,ifthe trial court believes that requested instructions on a defense theory are incorrect, it must tailor the instructions to conform to the law rather than deny them outright. (See, e.g., People v. Falsetta, supra, 21 Cal.4™ at p. 924; People v. Fudge, supra, 7 Cal.4" at p. 1110; accord People v. Brady, supra, 190 Cal.App.3d at p. 134; United States v. Newcomb,supra, 6 F.3d at p. 1132.) In a capital case such as this, where the requested instructions go to the primary defense theory and the only lesser-included offense option given the jury, both state law andthe federal constitution demand complete and accurate instructions on that defense theory. (See, e.g., Beck v. Alabama, supra, 447 U.S.at pp. 637- 638; People v. Breverman,supra, 19 Cal.4™ at pp. 160, 162; People v. Castillo, supra, 16 Cal.4" at p. 1015, People v. Wickersham, supra, 32 Cal.3d at p. 329; Conde v. Henry, supra, F.3d at pp. 739-740; United States v. Sayetsitty, supra, 107 F.3d 1414.) Pursuantto these authorities, where, as here: 1) the defense requests instructions on voluntary manslaughter in a reasonable heat ofpassion and on second-degree murder under an unreasonable heat ofpassion theory; 2) the court concludesthat there is substantial evidence that the killing was committed in a subjective state ofpassion and agreesto instruct on second-degree murder under that theory; but 3) finds that the evidenceis insufficient as a matter of law to satisfy the objective, reasonableness prong to negate malice and support a verdict ofvoluntary manslaughter, the court may not simply reject the voluntary manslaughterinstructionsin their entirety. Rather, the court should modify the requested voluntary manslaughter instructions to conform to the law relating to 137 defense theory of second-degree murder under an unreasonable or subjective heat ofpassion. Specifically, one ofthe standard voluntary manslaughter instructions, CALJIC No.8.42 provides: To reduce an unlawfulkilling from murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be ofthe character and degree as naturally would excite and arouse the passion, andthe assailant must act underthe influence of that sudden ~ quarrel or heat ofpassion. The heat ofpassion which will reduce a homicide to manslaughter must be such a passion as naturally would be arousedin the mind of an ordinarily reasonable person in the same circumstances. A defendantis not permitted to set up [his] [her] own standard of conduct andto justify or excuse [himself] [herself] because[his] [her] passions were aroused unless the circumstances in which the defendant wasplaced andthe facts that confronted [him] [her] were such as also would have arousedthe passion ofthe ordinarily reasonable person faced with the samesituation. [Legally adequate provocation may occur in a short, or over a considerable, period oftime.] The question to be answered is whetheror not, at the time ofthe killing, the reason ofthe accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person ofaverage disposition to act rashly and withoutdeliberation and reflection, and from passion rather than from judgment. Ifthere was provocation, [whether of short or long duration,] but of a nature not normally sufficient to arouse passion, or if sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, and if an unlawfulkilling of a human being followed the provocation andhadall the elements of murder, as I have definedit, the merefact of slight or remote provocation will not reduce the offense to manslaughter. 138 This instruction should be modified to explain that, in assessing whether the defendantacted in the heat ofpassion and not with premeditation, “The question to be answered is whether, at the time ofthe killing, the reason ofthe accused was obscured or disturbed by passion to such an extent that he acted rashly and without deliberation and reflection, and from passion rather than from judgment.” (See, e.g., People v. Wickersham, supra, 32 Cal.3d at p. 329; People v. Valentine, supra, 28 Cal.2d at p. 132; People v. Padilla, supra, 103 Cal.App.4" at p. 678.) With regard to relevant provocation evidence,the instruction should be modified to explain that, in answering whether the defendant acted with premeditation or from passion, the jury may consider“[all of] the circumstances in which the defendant wasplacedand the facts that confronted him,” including whetherhis passion was provoked. (See, e.g., People v. Bridgehouse, supra, 47 Cal.2d at p. 410; People v. Smith, supra, 151 Cal. at p. 628.) The jury should be instructed that the act or event provoking the defendant’s passion maybereal or perceived, need not come from any particular source, and need not be such as to provoke passion in a reasonable person, so long as it “excite[d] and arouse[d] this defendant’s passion” and he “act[ed] under the influence ofthat passion.” Similarly, CALJIC No. 8.44 provides: Neither fear, revenge, nor the emotion induced by and accompanying or following an intent to commit a felony, nor any or all of these emotional states, in and ofthemselves, constitute the heat ofpassion referred to in the law ofmanslaughter. Anyorall ofthese emotions may be involved in a heat ofpassion that causes judgment to give way to impulse and rashness. Also, any one or more ofthem may exist in the mind of a person whoacts deliberately and from choice, whether that choice is reasonable or unreasonable. This instruction should simply be modified to delete “in the law ofmanslaughter” and substitute “in the law ofpremeditation, as defined in CALJIC No.8.20.” Once agan, absent such instructions, untethered, unadorned references to “heat ofpassion “in CALJIC No. 8.20 and “provocation” in CALJIC No. 8.73 are 139 utterly inadequate to explain the relevant legal principles to the jurors. In this regard, the concerns expressed by Justice Cardozo over75 years ago highlight the virtual impossibility of lay jurors understanding the delicate dividing line between an impassioned and impulsive though intentional killing and a premeditated and deliberated killing without clear, complete direction from the court. In addressing New York law, under which — like California — premeditation and deliberation maybe achievedin a matter of seconds, so long as the actor makesa choice or “decision”to kill or not to kill, Justice Cardozo observed: There can be no intent unless there is a choice, yet ... the choice without more is enough to justify the inference that the intent was deliberate and premeditated. The presence of a sudden impulse is said to mark the dividing line, but how can an impulse be anything but sudden when the time for its formation is measured by the lapse of seconds? Yet the decisions are to the effect that seconds may be enough. ... The present distinction is so obscure that no jury hearing itfor the first time can fairly be expected to assimilate and understand it. 1 am not at all sure that I understand it myself after trying to apply it for many years andafter diligent study of what has been written in the books. Upon thebasis ofthis fine distinction with its Obscure and mystifying phraseology, scores of men have gone to their death. (What Medicine Can Do for Law, quoted in Austin v. United States, supra, 127 U.S. App. 180; see also CALJIC No.8.20 [explaining that premeditation involves a “choice” to kill and may bearrived at in any period oftime].) Indeed, the distinction between an impassioned and impulsive killing and a premeditated and deliberated killing is even more obscure under California law, which now provides that “[t]o prove that a killing was ‘deliberate and premeditated,’ it is not necessary to prove that a defendant meaningfully and maturely reflected upon the gravity of his or her act” (Pen. Code § 189) — a point on whichthe jurors in this case were explicitly instructed. (CT 704.) 140 Certainly, the need for clear and accurate instructions differentiating between a premeditated, deliberate murder and an impulsive murder committed in the heat ofpassion are particularly critical where, as here, the accused’s very life dependson the jurors’ understanding the distinction. Because thoseprinciples wentto the heart ofMatthew’s defense and the only lesser-included offense option available to the jurors, the court’s failure to provide complete and accurate instructions on the legal principles underlying second-degree murder in an - unreasonable or subjective heat ofpassion violated state law, as well as Matthew’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments pursuantto the foregoing authorities. In any event, as set forth below, even ifthe instructions were “not crucially erroneous, deficient or misleading on their face” (People v. Brown, supra, 45 Cal.3d at p. 1255), they “became so” when the prosecutor repeatedly misstated the legal principles underlying the defense theory. (See, e.g., People v. Claire, supra, 2 Cal.4" at p. 663; People v. Lucero, supra, 44 Cal.3d at p. 1031 and n.15; People v. Brown, supra, at p. 1255). Considering the record as a whole,it is more than reasonably likely that the jurors were misled as to the law regarding premeditation and Matthew’s primary defense, and misled to believe that it could not consider constitutionally relevant provocation evidence in violation ofMatthew’s federal constitutional rights. (Estelle v. McGuire, supra, 502 U.S. at pp. 71-72; Boyde v. California, supra, 494 U.S.at p. 380.) E. The Interplay Between The Instructions And Arguments Created A Reasonable Likelihood That The Jury Was Misled To Appiy The instructions in A Way [hat Vioiated The Feaera: Constitution. Asthis Court has explained, when reviewing a claim that the interplay _between instructions and argumentdistorted the meaning ofthe law,it is appropriate to consider at the threshold defense counsel’s arguments and whether 141 they clarified any ambiguity. (See, e.g., People v. Brown, 45 Cal.3d at pp. 1255- 1256.) However, in conducting such review,it is essential to keep in mind the well-settled legal principled that, on matters of law, arguments of defense counsel do not substitute for instructions by the court. (See, e.g., Boyde v. California, supra, 494 U.S.at p. 384; Carter v. Kentucky (1981) 450 U.S. 288, 304.) As the Supreme Court explained in Boyde: Arguments ofcounsel generally carry less weight with ajury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed s definitive and binding statements ofthe law. (Boydev. California, supra, 494 U.S.at p. 384.) Here, as discussed in ArgumentII-E-2, above, apart from the prosecutor’s recitation ofCALJIC No. 8.20, none ofthe attorneys even mentioned the term “heat ofpassion” muchless explained it, connectedit to the “provocation” referred to in CALJIC No. 8.73, or explained their relationship to the mental state elements ofthe charged crimes. Instead, rather than focusing onthecritical question ofwhetherthe killing was committed impulsively, in fit ofpassion or intense emotion, the arguments focused almost entirely on the existence or non- existence of “provocation” and whetherit “reduced”the crime to second-degree murder or negated premeditation. (See RT 3347-3348, 3373, 3375, 3446-3450; see, e.g., People v. Brady, supra, 190 Cal.App.3d at p. 137 [arguments of counsel did not clarify potential ambiguity in instructions where defense counsel never identified critical issue for jury to resolve]; accord, e.g., People v. Crandell, supra, 46 Cal.3d at p. 885.) The prosecutorincorrectly told the jurors that the central question was whether “provocation” (not heat ofpassion) “prevented the person provoked from forming the intent to kill as a process ofpremeditation and deliberation.” (RT 3446.) Asthe prosecutor incorrectly put it another way, there must be 142 “provocation that reduces the crime from a willful, premeditated murder to a second-degree murder ... .” (RT 3450.) Michael’s counsel similarly framed the issue as whether there was “provocation in [the shooter’s] mind.” (RT 3348.) In other words, the arguments ofall ofthe parties suggested that the critical question waswhether provocation somehow negated or was inconsistent with premeditation. The problem is that neither the instructions nor the arguments explained how “provocation”is in any way inconsistent with premeditation. In fact, a third party’s provocationis not inconsistent with premeditation and deliberation. While the defendant’s heat of,‘passion precludesor negates, and therefore cannot coexist with, premeditation and deliberation,a third party’s provocation certainly can. In other words, an actor may be highly provoked,yetstill kill with premeditation. (People v. Webb, supra, 143 Cal.App.2d at p. 423 [“although provocationis shown,in a proper case, premeditation can also exist”]; People v. Blakeley, supra, 23 Cal.4” at p. 96, dis. opn. ofMosk,J. [“in no caseis (the actor) disabled by provocation from forming the indicated intent or proceeding with the indicated disregard”’].) Significantly, the prosecution conceded that the boys committed their crimes in responseto acts ofthe victims, including the assault on their mother and Dewayne Arnold’s attempt “to do something.” (RT 3306-3307, 3313-3314, 3447- 3450.) The prosecution also conceded that the boys were “upset about what happenedto their mother.” (RT 3450.) Thecritical question then was not whether “provocation” existed or occurred since the prosecutor implicitly conceded that they committed their crimes, and “formed theintentto kill as a direct response to” certain events (See, e.g., People v. Wickersham, supra, 32 Cal.3d at p. 327, 329.) Rather, under the law and based onthe facts, the central question was whether the boys acted or responded in the heat ofpassion or anger, or “formedthe intent to kill as a direct response”to those acts and “acted immediately to carry it out.” (People v. Wickersham, supra, 32 Cal.3d at pp. 327, 329.) 143 By focusing almost entirely on the existence or non-existence of “provocation”the critical question presented by the evidence by this case — the question on which Matthew’s life hinged — was hopelessly beclouded. The jury’s focus was improperly shifted from Matthew’s subjective mental state to the victims’ conduct and the emotionally charged, yet legally irrelevant, question of whether they “deserved” what they got. (RT 3308, 3422, 3447; cf. People v. Minifie, supra, 13 Cal.4" at p. 1068.) In this regard, the prosecutor argued that the only evidence of “provocation”that the jury could consider in determining whether the shooter premeditated was the conduct in which the victims actually engaged, as opposed to what the boys believed had occurred. (RT 3308, 3420-3421, 3446, 3449.) This argument was a gross misstatement ofthe law, advancing a standard for “provocation”that is greater than that even required in the voluntary manslaughter context. (See, e.g., People v. Lee, supra, 20 Cal.4" at p. 59 [even underobjective standard of adequate provocation in voluntary manslaughter context, mistaken belief as to provocation is sufficient]; People v. Logan, supra, 175 Cal. at p. 49 People v. Brooks, 185 Cal.App.3d at pp. 693-695; see also People v. Padilla, supra, 103 Cal.App.4™ at p. 698 [defendant’s unreasonable belief, based on hallucination, relevant provocation evidence to consider in second-degree murder in unreasonable heat ofpassion context].) Matthew’s counsel quite properly argued that, despite what actually occurred, the relevant inquiry was what the boys believed had occurred. (RT 3421.) In this regard, counsel argued that although Ms. Souzaclaimedlittle recollection ofwhat she had told her sons and despite what had actually occurred, the jurors could infer from the other evidence that the boys believed that their mother had been “completely beaten up” by “people there” at the apartment. (RT 3420.) However, the prosecutor made a speaking objection that the counsel’s argument“misstates testimony not ‘some people.’ [Ms. Souza is] very clear. It 144 was only the woman that kicked her out. I object to Mr. Costain’s misstates [sic], repeated misstates. Ofthe evidence, your honor, is his wishful thinking.” (RT 3421.) The court overruled the objection not on the ground that defense counsel’s position was legally correct, but rather on the groundthat “each side can argue the evidence as they see it.” (RT 3421; see People v. Edelbacher, supra, 47 Cal.3d at pp. 1039-1040 [in finding reasonable likelihood jurors misunderstood law, Court emphasized that while defense counsel correctly argued the law, the prosecutor objected to his argument; and, although thetrial “court overruled the objection, it did so with remarks that counsel was given latitude in argumentand the jury was instructed on the law, which ‘could well haveleft the jury with the (wrong) 399impression’”].) The court’s ruling was incorrect. Certainly, what the boys did or did not believe was a question of fact for counsel to argue andthe jurors to resolve. However, the essential question of whether a defendant’s mistaken belief can be consideredatall in assessing whether he premeditated and deliberated was not a question of fact; it was a vital question of Jaw on which the jurors should have received instructions. (See, ¢.g., People v. Johnson (1992) 3 Cal.4" 1183, 1261, conc. opns. ofMosk,J., joined by Kennard, J. [even if court not ordinarily required to give particular instruction, “the court is obligated to give an express instruction on the matter ifthere is a reasonable likelihood that, in the absence of such an advisement, the jury will labor under a misconception. . . .”]; People v. Livaditis (1992) 2 Cal.4® 759, 784 [even if court is ordinarily not required to instruct on particular legal principle,it must do so if there is a reasonable likelihoodthat the jury will be misled withoutit where“the court or the parties make an improper contrary suggestion”].) Similarly, despite the fact that the trial court had rejected the prosecutor's request for instructions limiting the jury’s consideration ofprovocation evidence to the Regina Watchman charge on the ground that provocation must come from the victim, the prosecutor repeatedly arguedthat incorrect legal principle to the jurors. Hetold the jurors that because it was only Watchman whoeven arguably 145 engaged in “provocation” under CALJIC No.8.73, the jurors could not consider her provocative acts as to the charges involving the other victims. (RT 3311, 3446-3449.) Indeed, the prosecutor relied heavily on the absence of evidence that the other victims actually engaged in any egregious conduct in arguing that the element ofpremeditation and deliberation had been established as to them since there was no “provocation”“to prevent” premeditation or to “reduce”the crimes. (RT 3289, 3311, 3446-3448, 3450.) Once again, this argumentdistorted the law, which permits consideration ofany evidence tending to show that the defendant formed the intent to kill immediately in response to any act or event — regardless ofwhetherit was real or perceived and regardless ofwhether it came from the victim. (See, e.g., People v. Wickersham, supra, 32 Cal.3d at pp. 327, 329; People v. Padilla, supra, 103 Cal.App.4" at p. 678.) Michael’s counsel, Mr. Selvin, objected that the prosecutor was misstating the law in arguing that the provocation referred to in CALJIC No. 8.73 must come from the victim and therefore jury’s consideration ofprovocation waslimited to the Regina Watchman charge. (RT 3449.) In front of the jurors, the court overruled the objection, again observing that“this is in the realm of argument on how they should look at the evidence, not a dispute of the law as I understandit.” (RT 3449.) Again, the court was incorrect. While the weight of evidence was for the jury to decide, the proper scope of the provocation evidence the jury could and should consider was a question of law on which the court should have instructed the jurors. (See, e.g., People v. Johnson, supra, 3 Cal.4" at p. 1261, conc. opns. of Mosk, J., joined by Kennard, J.; People v. Livaditis, supra, 2 Cal.4" at p. 784.) By overruling defense counsel’s objection to the prosecutor’s argumentin frontofthe jurors, the court not only failed to correct a critical misstatementoflaw,it effectively instructed the jury that the prosecutor’s position was not legally incorrect. (See, e.g., Caldwell v. Mississippi, supra, 472 U.S. at p. 339 [by overruling objection to misstatement of law and telling jury that remarks were appropriate, court “strongly impl(ied) that the prosecutor’s” misstatement of law 146 “was correct”]; People v. Evans (1994) 25 Cal.App.4™ 358, 368 [by overruling objection, court gave jurors the “unmistakable impression that what the prosecution” argued was “legitimate”].) Absent clear and unequivocal direction — either in the court’s original charge or in response to the prosecutor’s argument — the lay jurors were totally unequipped to decide whichattorney’s explanation of the scope of evidence they could consider was correct.”° Further, defense counsel for both brothers argued that Dewayne Arnold’s acts in confronting Michael and engaging in a physical altercation with him, which immediately precipitated the shooting, demonstrated that the shooter was provokedto respond immediately by firing his weapon. (RT 3363, 3401.) In rebuttal, the prosecutor emphatically responded that Armnold’s response was entirely “reasonable”. (RT 3447.) Therefore, he explained, “that’s not provocation, ladies and gentlemen.” (RT 3447.) Once again, the prosecutor’s argumentthat only “unreasonable” conductis legal “provocation” was a serious misstatementofthe law. Once again, the question for the jury to decide was not whetherthe victims’ conduct was “reasonable” or whether they “deserved” what they got, but rather the shooter’s state ofmind. Once again, in answering that critical question, Matthew was entitled to have the jury consider any act - reasonableor not — that could have played a part in provoking his angeror immediate, responsive, unpremeditated intent to kill. (See, e.g.,People v. Wickersham,supra, 32 Cal.3d at p. 322 [jury could consider evidence that victim grabbed defendant’s gun as relevant “provocation” evidence on issue ofwhether defendant killed in unreasonable heat ofpassion and therefore was guilty of second-degree murder].) 25 Although Matthew’s counseldid notspecifically join in the objection, early in the proceedings, the trial court informed the attorneys that it only wanted to hear argument from oneattorney. (RT 435.) 147 Thus, having improperly limited the jurors’ focus to the existence or non- existence ofprovocation rather than to the defendants’ state of mind, to the Regina Watchman charge alone, and to the conduct in which she actually engaged, the prosecutor turned his attention to the nature of Watchman’s act and whetherit amounted to “provocation”sufficient to “reduce” her murder to one in the second- degree. Consistent with his position that the only relevant provocation was what actually occurred, the prosecution characterized Watchman’s assault on Ms. Souza as a trivial act of “hair pulling” “between two women.” (RT 3308, 3446, 3449.) The prosecutor concededthat the boys’ acts in going to the apartment armed with weaponsweredirect responsesto that assault. (RT 3306-3307, 3313-3314, 3447- 3450.) However, he emphatically argued that given the trivial nature ofher actual conduct andthe fact that it was “not provocation given directly at these guys,” the boys overreacted. (RT 3308, 3310-3312, 3446.) The prosecutor asked the jurors to consider whether their own children would similarly have respondedto trivial assault upon them and decide whetherthe defendants’ response was “reasonable,” “responsible and mature” (RT 3452-3453) or “natural” (RT 3311). Because the boys’ response was an unreasonable overreaction, the prosecutor argued, Watchman’s arguable act of “provocation” was insufficient to “prevent” the defendants from premeditating and deliberating, and thus was “not provocation” sufficient to “reduce” Watchman’s murder to second-degree murder. (RT 3449- 3450.) Again, the prosecutor’s argument misstated the legal principles that should have been addressedin the instructions. There is, of course, no reasonableness requirementin the unreasonable or subjective heat ofpassion context. By arguing that there was, the prosecutor’s argument improperly advanced a heightened standard for provocation and heat of passion, lessened his burden ofproving premeditation beyond a reasonable doubt, and undercut Matthew’s primary defense. Indeed, the prosecutor’s argument as a whole effectively destroyed counsel’s tactical basis for requesting that the jury not be instructed on voluntary 148 manslaughterin a reasonable heat ofpassion as to Watchman so as to avoid confusing the jurors regarding the standards ofprovocation applicable to manslaughter and second-degree murder. (RT 3230-3231.) Respondentwill undoubtedly argue that the jurors were instructed that the arguments of counsel were just that and therefore the prosecutor’s argument could not have misled the jurors regarding the law. Any such argument should be rejected. Absent clear direction from the court, the jurors were effectively forced to makea credibility determination between opposing counsels’ explanations ofthe relevant law. And, in considering two competing viewsofthe law in this regard,it has long been recognized that the contestis not a fair one. “Defense counsel and the prosecuting officials do not stand as equals before the jury. Defense counsel are known to be advocates for the defense. The prosecuting attorneys are governmentofficials and clothed with the dignity and prestige oftheir office. Whatthey say to the jury is necessarily weighted with that prestige.” (People v. Talle, supra, 111 Cal.App.2d 650, 677, cited with approval in People v. Thomas (1992) 2 Cal.4™ 489, 529; accord People v. Taylor, supra, 197 Cal.App.2d at p. 383; People v. Brophy (1954) 122 Cal.App.2d 638, 652; United States v. LaPage (9™ Cir. 2001) 231 F.3d 488, 49 [in contrast to the prosecutor, “the jury understands defense counsel’s duty of advocacy and frequently listens to defense counsel with skepticism”].) At the very least, “the prosecutor and defense counsel, through their arguments” presented two inconsistent versions ofthe applicable law, and the Court has “no way ofknowing which [version] the jurors adopted .. .” (People v. Edelbacher, supra, 47 Cal.3d at p. 1040.) Under the circumstances,it is reasonably probable that the jurors were misled to believe that it could not considercritically relevant evidence in determining whether the prosecution hadcarried its burden ofproving the element ofpremeditation. (Ibid.) Respondent may further argue that because counsel did not object to all of the prosecutor’s misstatements, he cannot challenge them on appeal. Onceagain, 149 any such argument would be without merit. In assessing whetherit is reasonably likely that the interplay of instructions and argumentdistorted the law, the Court reviews arguments to which no objection and was made because its “concern is not with the ethics ofthe prosecutoror the performanceofthe defense, but with the impactofthe erroneous interpretation of the law onthejury”. (People v. Lucero, supra, 44 Cal.3d at p. 1031 and n.15; see also People v. Edelbacher, supra, 47 Cal.3d at p. 1035 and n.16 [because prosecutor’s argument exacerbated instructional error, it was unnecessary to resolve whether it amounted to misconduct and therefore unnecessary to resolve whether objection was necessary to preserve claim of misconduct on appeal]; Taylor v. Kentucky, supra, 436 U.S. at pp. 486-490 and 14 [despite provision of generally adequate instructions, combination of court’s refusal to provide additional instructions and prosecutor’s potentially misleading argument violated defendant’s right to due process, regardless ofwhether the “prosecutorial comments, standing alone, wouldrise to the level of reversible error . . . (because) they are relevant to the need for carefully framed instructions. . .”].) Indeed, this is entirely consistent with the fundamentalprinciple that “[a] defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights.” (People v. Vera (1997) 15 Cal.4™ 269, 276.) In any event, from the court’s responses to the objections that were made,it seems clear that any other objections would have been futile and risked emphasizing the improper matters to the jurors. (See, e.g., People v. Hill, supra, 17 Cal.4™ at p. 820 [objection to misconduct unnecessary where it would be futile]; accord People v. Chavez (1980) 26 Cal.3d 344, 350, n. 5; People v. Zemavasky (1942) 20 Cal.2d 56, 62 [further objections unnecessary where they would be “useless and would have served only to emphasize the matterto the jurors”].) Underthe circumstances, the combination ofthe instructional void on the legal principles vital to Matthew’s primary defense andthe only lesser-included offense option provided to the jury and the prosecutor’s repeated misstatements of 150 the law created a reasonable likelihood that the jurors misunderstood the law relating to Matthew’s defense and believed that it could not consider constitutionally relevant provocation evidence in determining whether the prosecution had proved the element ofpremeditation and deliberation asto all of the charges. Hence,error of federal constitutional dimension occurred. (See, e.g. Estelle v. McGuire, supra, 502 U.S. 62, 71-72; Boydev. California, supra, 494 U.S. 370, 380; see also Crane v. Kentucky, supra, 473 U.S.at p. 690 [criminal defendants have constitutional right to present and have jury consider highly relevant evidencein their defense]; accord California v. Trombetta (1984) 467 U.S. 479, 489; Davis v. Alaska (1974) 415 U.S. 308; Chambers v. Mississippi (1973) 410 U.S. 284.) Finally, the reasonable likelihood that the jurors misapprehendedthe law is starkly illustrated by their verdicts. As discussed in ArgumentII, in support of his theory that both boys premeditated the crimes, the prosecutor argued that premeditation and deliberation can be “conditional,” and therefore the evidence established premeditation even if their plan to kill was conditioned upon encountering resistance from the apartment’s occupants. (RT 3290-3291, 3311- 3312.) Presuming, as the Court must, that the jurors followed the law (see,e.g. People v. Sanchez (2001) 26 Cal.4® 834, 852), then the jury’s finding that Michael did not intend to kill (by acquitting him ofthe special circumstance allegation) reflects their rejection ofthe prosecution’s theory that the boys armed themselves and went to the apartment with any intent — even a conditional one — to kill. (See also CT 659-659.1 [during deliberations, jurors specifically inquired into requirementthat aider and abettor intend to kill and were again informedthat there is such a requirement and that such intent exists where “the purpose,plan,or goal, includes killing”].) Given that Michael was characterized as the “leader” and the absence ofany evidence that Matthew’s intent was any different from that ofhis “leader” before he pulled the trigger of his weapon, the evidence and verdicts compel the conclusion that the jury must have determined that Matthew only 151 formedthe intent to kill in response to the chaotic and rapidly escalating collision of circumstances he encountered upon entering the apartment and acted immediately to carry it out. Such a finding seemsplainly inconsistent with its findings ofpremeditation asto all ofthe victims. (See People v. Wickersham supra, 32 Cal.3d at pp. 327-329; see also authorities discussed in part F below.) Applying the presumption that the jurors followed the law as they understoodit, the reasonably likely explanation for this seeming inconsistencyis that the jurors misunderstood and were misled regarding the relevant law. F. Reversal Is Required. Where,as here, error of federal constitutional dimension has occurred, reversal is required unless the court determines that it was harmless beyond a reasonable doubt. (Sullivan v. Louisiana, supra, 508 U.S. at p. 279; Yates v. Evatt, supra, 500 U.S. at p. 404; Chapman v. California, supra, 386 U.S.at p. 24; People v. Lucero, supra, 44 Cal.3d 1006, 1032.) Respondent will be unable to meetthis burden. The evidence ofpremeditation was negligible at best. As this Court has explained: The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intendedto result in, the killing -- what may be characterized as "planning"activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of "a pre-existing reflection" and "careful thought and weighing of considerations" rather than "mere unconsidered or rash impulse hastily executed" (Citation); (3) facts about the nature ofthe killing from which the jury could infer that the manner of killing was so 152 particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life in a particular way for a "reason" which the jury can reasonably infer from facts of type (1) or (2). (People v. Anderson, supra, 70 Cal.2d at pp. 26-27; accord, e.g., People v. Sanchez (1995) 12 Cal.4” 1, 31- 32.) Asto evidence ofplanning activity, as discussed above, the prosecutor concededthat the boys might not have embarked upon an unconditional plan to kill any ofthe apartment’s occupants. Nevertheless, he argued that the fact that the boys wentto the apartment armed with guns provided compelling proofthat they had a “conditional” plan to kill, which depended upon whetherthey encountered resistance from the apartment’s occupants. (RT 3290-3291, 3311- 3312.) However, by finding that Michael did not intendto kill, it is clear from the verdicts that the jurors rejected the prosecution’s theory. In other words, although the boys did arm themselves with weapons before going to the apartment, it seems clear that the jurors had reasonable doubt that they plannedto kill or use those guns as murder weapons. (See, e.g., People v. Anderson, supra, 70 Cal.2d t pp. 21-22 [use of a deadly weapon does not necessarily demonstrate plan to kill].) Similarly, as to motive evidence, while the boys were motivated to go the apartment with gunsby the attack on their mother and possible theft ofher purse, they were also motivated to so do by the passion engendered thereby. Moreover, the jury’s verdicts demonstrate that the boys were not motivated to kill upon arriving at the apartment. The actual motive for the shooting — the attack on their mother combined with the rapid and violent escalation of events with which the boys were confronted upontheir arrival — was, as discussed in the preceding arguments, more consistent with an explosion ofviolence than with premeditation. Finally, as discussed in ArgumentII-C, the mannerofkilling wasat least as consistent with an explosion ofviolence as it was with premeditation, ifnot more so. The shooting erupted immediately after Dewayne Arnold engaged in a physical struggle with Michael and after Regina Watchman’s heated words from 153 which — as the prosecutor argued — the boys could surmise that she was one of their mother’s attackers. (RT 330, 3313.) Arnold was shot seven times and Watchman wasshot three times. As further discussed above, the evidence was at least as consistent with an unintentional shooting ofthe other victims in the same explosion ofviolence directed toward Amold and Watchman as it was with a premeditated intent to kill them. (See, e.g., People v. Anderson, supra, 70 Cal.2d at pp. 21, 25 [multiple acts ofviolence against victim not alone sufficient to prove premeditation; evidenceinsufficient in that case where,inter alia victim stabbed 60 times]; People v. Jiminez, supra, 95 Cal.App.2d at pp. 842-843 [evidence insufficient to prove premeditation where, inter alia, victim stabbed eight times]; see also Austin v. United States, supra, 382 F.2d at p. 132 [evidence insufficient to prove premeditation rather than subjective heat ofpassion where victim stabbed 26 times].) While the prosecutor arguedat trial that the boys’ flight from the scene, disposal ofthe weapons, and disappearance for a few days before surrendering evidenced premeditation and deliberation (RT 3314-3315), the boys’ post-crime conduct “wasirrelevant to ascertaining defendant’s state ofmind immediately before, or during, the killing.” (People v. Anderson, supra, 70 Cal.2d at p. 32 [defendant’s effort to “cover up”killing irrelevant to whether killing premeditated and deliberate]; accord People v. Jiminez, supra, 95 Cal.App.2d at pp. 842-843 [post-crime conduct, including flight, insufficient to prove premeditation]; Austin v. United States, supra, 382 F.2d at pp. 139-140 [premeditation and deliberation “is manifestly not established beyond a reasonable doubt by evidence showingthat [defendant] acted with deliberation afterward,in an effort to avoid detection and punishment . . . .”].) Indeed, the dubiousness ofthe prosecutor’s contention that the boys’ flight was evidenceoftheir guilt ofpremeditated murder and attempted murder is demonstrated by the prosecutor’s later, inconsistent, argumentthat the boys’ surrenderto police also manifested a consciousnessofguilt as to the charged crimes. (RT 3438.) 154 Given the dearth of evidence that the shooting was premeditated and deliberated along with the jury’s findings, respondent simply cannot prove beyond a reasonable doubtthat the inadequate and misleading instructions and argument did not contribute to the jury’s verdicts. (See Sullivan v. Louisiana, supra, 508 USS.at p. 279; Yates v. Evatt, supra, 500 U.S. at p. 404.) Certainly,the jury’ guilt phase verdicts are not sufficiently reliable to satisfy the Eighth Amendment. (See Beck v. Alabama, supra, 447 U.S. at pp. 637-638.) The judgment must be reversed. 155 IV. REVERSAL OF THE ATTEMPTED MURDER CONVICTIONSIS REQUIRED DUE TO AN AMBIGUOUS INSTRUCTION RESULTING IN A REASONABLE LIKELIHOOD THAT THE JURORS MISUNDERSTOOD THATIT COULD RETURN GUILTY VERDICTS WITHOUTFINDING THAT THE PERPETRATOR SPECIFICALLY INTENDED TO KILL THE VICTIMS AND NOT MERELY THE TARGETS, IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS. A. Introduction. Asdiscussed in ArgumentII-C-2, above, there was compelling evidence that although the perpetrator may have intended to shoot and kill Dewayne Arnold and Regina Watchman,the shootings ofLeslie Trudell and the surviving victims, Beulah John, and Rodney James, were unintentional. If this were the case, the shooter was neverthelessliable for the actual killing of Leslie Trudell under the transferred intent doctrine. (People v. Bland, supra, 28 Cal.4" at pp. 317, 322.) However,the transferred intent doctrine would not apply to hold the shooterliable for attempted murder ofJohn and James, since the specific intent to kill required for attempted murder cannot be “transferred” from an intended victim to an unintended victim. (Id. at pp. 326-331.) As further discussed in Argument II-E-3, on the prosecution’s motion,the trial court provided a special, pinpointinstruction that it was “not necessary that premeditation and deliberation be directed at a specific individual, it may be directed at a group.” (CT 561, 704; RT 2946, 3263.) Unfortunately, as fully set forth below,this instruction was, at best, confusing and misleading with regard to the prosecution’s burden to prove beyond a reasonable doubt the critical intent to kill element ofthe attempted murder charges. As further set forth below, there is a reasonable likelihood that the jurors misunderstood the law and believed that the 156 shooters intent to kill one victim applied to all ofthe victims who happened to be struck by the bullets, even those shot unintentionally. Becauseit is reasonably likely that the at least one juror misunderstoodthe instructions to permit convictions on the attempted murder charges without finding the essential intent to kill element beyond a reasonable doubt, the error violated state law as well as Matthew’s federal constitutional rights to due process,trial by jury, and reliable guilt phase determination as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth | Amendments. Finally, because respondent cannot prove the error harmless beyond a reasonable doubt, the attempted murder convictions must be reversed. B. Attempted Murder Requires Proof Beyond A Reasonable Doubt That The DefendantSpecifically Intended To Kill The Particular Victim, Not SomeoneElse. Both first-degree premeditated murder and attempted murder with premeditation require the specific intent to kill. (Pen. Code §§ 187, 189, 664; People v. Bland, supra, 28 Cal.4® at pp. 327-328 [and authorities cited therein].) Understate law and the federal constitution, the prosecution bears the burden of proving this element beyond a reasonable doubt. (See, e.g., United States v. Gaudin, supra, 515 U.S. at pp. 509-511, 522-523; Sullivan v. Louisiana, supra, 508 U.S. 275; Osborne v. Ohio, supra, 495 U.S. at pp. 123-124; Carella v. California, supra, 491 U.S. at p. 265; Mullaney v. Wilbur, supra, 421 U.S.at p. 698.) Underthe transferred intent doctrine, the defendant’s intent to kill one victim will transfer to an unintended victim when the unintendedvictim is actually killed, regardless of whetheror not the target is killed. As the Court has explained, “[w]hether one conceptualizes the matter by saying that the intent to kill the intended target transfers to others also killed, or by saying that intent to kill need not be directed at a specific person, the result is the same: assuminglegal causation, a person maliciously intending to kill is guilty ofthe murderofall 157 person actually killed. Ifthe intent is premeditated, the murder or murders are of the first degree.” (People v. Bland, supra, 28 Cal.4™ at p. 323 [and authorities cited therein].) However, attempted murderis different. “To be guilty ofattempted murder, the defendant mustintendto kill the alleged victim, not someoneelse.” (id. at p. 328, emphasis supplied [and authorities cited therein].) The “{d]Jefendant’s guilt of attempted murder must be judged separately as to each alleged victim.” (Ibid.) In this regard, the defendant’s “primary intent to kill a specific target does not rule out a concurrent intent to kill others.” (Id. at p. 329, n. 6.) Hence, where the defendant intendsnot onlyto kill his primary target but also specifically intends to kill any other persons within the “kill zone” ofthat target, he is liable for their attempted murder because he harborsan intent to kill each victim. (Id. at pp. 329-331.) Because this “concurrent intent”principlestill requires specific intent to kill each victim, “it is not a legal doctrine requiring special jury instructions, as it the doctrine oftransferred intent.” (Id. at p. 329, n. 6.) Cc. From TheInstructions And Arguments As A Whole,It Is Reasonably Likely That The Jurors Misunderstood That It Did Not Need To Find That Matthew Specifically Intended To Kill James And John In Order To Convict Him OfAttempting To Murder Them With Premeditation And Deliberation. As noted above, the jurors were instructed that a premeditated intentto kill need not “be directed at a specific individual, it may be directed at a group.” (CT 704; RT 3263.) As discussed in ArgumentII-E-3, this phrase is ambiguous, having been usedto refer to very different legal principles, some ofwhich do require a specific intent to kill each individual victim and some ofwhich donot. The question then is whetheris it reasonably likely that the jurors misunderstood from this instruction that it was not necessary for them to find that the perpetrator specifically intended to kill both James and John in orderto find him guilty of 158 attempting to murder them with premeditation and deliberation. (See, e.g., People -v. Clair, supra, 2 Cal.4® at pp. 662-663; Estelle v. McGuire, supra, 502 U.S. 62, 71-72; Boyde v. California, supra, 494 U.S. 370, 380.) Reading the instructions and arguments as a whole (see, e.g., Boyde v. California, supra, 394 U.S.at p. 378; People v. Brown, supra, 45 Cal.3d at p. 1255 People v. Musslewhite, supra, 17 Cal.4™ at p. 1248), the answeris yes. Asfurther discussed in Argument II-E-3, with respectto the critical intent to kill element, the other instructions spoke only in terms ofan intent “to kill” (CT 704; RT 3262), intent to “kill a human being” (CT 703, 705; RT 3263-3264), intent to “kill another human being” (CT 707; RT 3265), and intent to “kill another person” (CT 707; RT 3265). They did not speak in terms ofintent to kill the “person killed,” or the “person injured,” or refer to the specific victims by name. Once again, the language usedin theseinstructions1s susceptible of a reading that the intent to kill element only requires an unlawful intentto kill “a human being,not the person intendedto bekilled,” or an “’intent to kill a, not a specific, human being.’” (People v. Scott, supra, 14 Cal.4™ at p. 554, conc. opn. of Mosk, J. [and authorities cited therein].) Hence, this reading achieves the same result as the transferred intent doctrine, being that the defendantneed notintend to kill the victim actually killed or injured so long as he intended to kill someone in harming orkilling the victim. (Ibid; accord People v. Bland, supra, 28 Cal.4™ at p. 323.) In other words, the language ofthe instructions as a wholeis susceptible of a reading that — in colloquial terms — a shooter’s intent to kill follows his bullet, even if that bullet strikes an unintended victim and the victim lives. While such a reading is irrelevant where the unintended victim dies,it is critical where the unintended victim does not die. Once again,“to be guilty ofattempted murder, the defendant mustintendto kill the alleged victim, not someone else.” (People v. Bland, supra, 28 Cal.4" at p. 328, emphasis supplied.) | As discussed in ArgumentII-E-3, the arguments to the jury lend further support to the reasonable likelihood that the jurors misunderstoodthat, in order to 159 be guilty of attempted murder, the defendant need not intendto kill the alleged victim so long as he intendedto kill someone else. Because the prosecutor was emphatic that the shooter intended to kill each specific victim (going so far as to argue that he moved around the room and took careful aim at each victim, although none ofthe eyewitnesses even suggested as much), he never addressed the question ofliability if that hypothesis were not true. (RT 3283-3284, 3289- 3290, 3442-3444.) However, Michael’s counsel argued that the shooter intended to shoot and to kill Dewayne Arnold andthat the other victims were unintended, having been struck accidentally by an inexperienced shooter whodid not have control over his automatic weapon. (RT 3363.) Significantly, he conceded that the boys were guilty of second-degree murderas to all ofthe victims, even those shot unintentionally. (RT 3324-3328.) He expressly conceded, “whether[the shooter]’s actually firing at everybody or he’s firing at one and can’t control it and he’sfiring at the others, Jegally it doesn’t matter.” (RT 3363, emphasis supplied.) Even ifhe did notintendto kill all ofthe victims, “when he’s firing, he has an intent to kill;” consequently, the shooter was guilty of murder even as to any unintended victims. (RT 3363-3364.) Given that this concession came from the mouth of one ofthe defense attorneys, it undoubtedly carried great weight. Matthew’s counsel never addressed whether the shootings ofthe other victims wereintentional or unintentional nor did either defense attorney ever differentiate between the murder and attempted murder charges or specially address the latter charges. (See RT 3317-3776, 3380-3423;see, e.g., People v. Brady, supra, 190 Cal.App.3d at p. 137 [arguments of counsel did not clarify potential ambiguity in instructions where defense counsel never identified critical issue for jury to resolve]; see also People v. Crandell, supra, 46 Cal.3d at p. 835.) In sum, considering the instructions and the argument as a whole,it is reasonably likely that the jury misunderstood that it could return attempted murder verdicts as to James and John based on a finding that the perpetrator shot them with a premeditated intent to kill “a human being” — such as Arnold and 160 Watchman — but not those human beings. Becauseit is reasonably likely that the jurors misunderstoodthat it could convict without finding an essential element beyond a reasonable doubt, the error violated state law as well as the Matthew’s federal constitutional rights to due process,trial by jury, andreliability in the guilt phase verdicts in this capital case. (See, e.g., Estelle v. McGuire, supra, 502 U.S. 62, 71-72; Boyde v. California, supra, 494 U.S. 370, 380; Beck v. Alabama, supra, 447 U.S.at pp. 637-638.) D. The Error Was Not Waived. Respondent may argue that because counsel did not object to the instruction, he waivedthe error for appeal. Any such argument must be rejected. Penal Code section 1259 provides that an “appellate court may. . . review any instruction given . . . even though no objection was madethereto in the lower court, ifthe substantial rights ofthe defendant were affected thereby.” (Pen. Code § 1259;accordPeople v. Smithey (1999) 20 Cal.4™ 936, 976, n. 7 [rejecting Attorney General’s waiver argument where defendant’s claim wasthatinstruction violated his right to due process of law, which “is not ofthe type that must be preserved by objection”].) Of course, Matthew has claimed a reasonable likelihood that the jurors applied an ambiguousinstruction in a way that affected his substantial rights, and hence the provision of the ambiguousinstruction is reviewable on appeal notwithstanding the absence of an objection below. (See, e.g., People v. Prieto (2003) 30 Cal.4™ 226, 247; see also People v. Yeoman (2003) 31 Cal.4™ 93, 118 [and authorities cited therein — reviewing court may consider claim raised for first time on appeal if it involves a pure question of law on undisputed facts]; People v. Champion (1995) 9 Cal.4™ 879, 908 andn.6 [if question ofwhether claim preservedis “close and difficult” must be resolved in favor of preservation].) 161 E. The Attempted Murder Convictions Must Be Reversed Because Respondent Will Be Unable To Prove The Error Harmless Beyond A Reasonable Doubt. Asdiscussed in ArgumentIII, where, as here,it is reasonably likely that the jurors understood the instructions in a way that violates the federal constitution, reversal is required unless respondent can prove beyond a reasonable doubt that the verdict “was surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S.at p. 279; accord Chapman v. California, supra, 386 U.S.at p. 24.) Respondentwill be unable to carry its burden in this case. Asdiscussed in greater detail Argument II-C-2, the evidence was compelling that the shootings ofJohn and James were unintentional. They were located behind the intended targets, Watchman and Amold, when they were shot. Witnesses described the round ofgunshots as being rapidly fired, without any breaks or pauses between them to suggest that the shooter was taking aim at anyone other than Arnold and Watchman. In stark contrast to the intendedtargets, whowere shot seven times and three times respectively, John and James were each shot only once and in their extremities. The apartment’s occupants who were not located behind or near Arnold and Watchman were not harmed in any way. Onthis record, respondent simply cannot prove beyond a reasonable doubtthat the instruction allowing verdicts of attempted premeditated murder without necessarily finding that the shooter specifically intendedto kill both John and James did not contribute to the verdicts. The attempted murder convictions must be reversed. 162 V. THE PROVISION OF CALJIC 17.41.1 VIOLATED MATTHEW’S SIXTH AND FOURTEENTH AMENDMENTRIGHTS TO DUE PROCESS AND TRIAL BY A FAIR AND IMPARTIAL JURY AND REQUIRES REVERSAL. Over Matthew’s objection, the jury in this case wasinstructed in the guilt phase with CALJIC 17.41.1 as follows: Theintegrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by theseinstructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment or any other improperbasis,it is the obligation ofthe other jurors to immediately advise the court ofthe situation. (CT 726; RT 2966.) In People v. Engelman (2002) 28 Cal.4™ 436,this Court disapproved CALJIC No. 17.41.1, but also concluded that its provision does not violate the federal constitution. Matthew respectfully submits that its provision in his case did violate his rights under the Sixth and Fourteenth Amendmentsandtherefore raises the issue here in order for the Court to reconsider its decision in Engelman and to preserve the error for review in federal court. Private and secret deliberations are essential features ofthe jury trial guaranteed by the Sixth Amendment. (See, e.g., Tanner v. United States (1987) 483 U.S. 107, 127; United States v. Brown (D.C. Cir. 1987) 823 Fd.2d 591, 596.) However, CALJIC 17.41.1 pointedly tells each juror that he or she is not guaranteed privacy or secrecy. At any time, the deliberations may be interrupted and a fellow juror may repeat his or her wordsto the judge and allege some impropriety, real or imagined, which the juror believed occurred in the jury room. Theinstruction, in short, assures the jurors that their words might be used against them and that candorin the jury room could be punished. Theinstruction 163 therefore chills speech and free discourse in a forum where "free and uninhibited discourse" is most needed. (Attridge v. Cencorp (2nd Cir. 1987) 836 F.2d 113, 116.) The instruction virtually assures "the destruction ofall frankness and freedom of discussion" in the jury room. (McDonaldv. Pless (1915) 238 U.S. 264, 268.) Accordingly, the instruction improperly inhibits free expression and interaction among the jurors which is so important to the deliberative process. (See, e.g., People v. Collins (1976) 17 Cal.3d 687, 693.) Where jurors findit necessary or advisable to conceal concerns from one another, they will not interact and try to persuade others to accept their viewpoints. "Juror privacy is a prerequisite of free debate, without which the decision making process would be crippled." (United States v. Symington (9™ Cir. 1999) 195 F.3d 1080, 1086 citing Note, Public Disclosures of Jury Deliberations, 98 Harv. L. Rev. 886, 889.) Long ago, Justice Cardozo noted, "Freedom of debate mightbestifled and independence ofthought checked ifjurors were made to feel that their arguments and ballots wereto be freely published to the world." (Clark v. United States (1933) 289 U.S. 1, 13.) . The free discourse ofthe jury has been found to be so important that, as a matter ofpolicy, post-verdict inquiry into the internal deliberative process has been precluded even in the face of allegations of serious improprieties. (See, e.g., Tannerv. United States (1987) 483 U.S. 107 [inquiry into juror intoxication during deliberations not permitted]; United States v. Marques (9th Cir. 1979) 600 F.2d 742, 747 [no evidence permitted as to juror compromise].) Under Evidence Code section 1150, "(n)o evidence is admissible to show the effect of[a] statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." These same policy considerations should bar CALJIC 17.41.1 so that it may not be allowed to chill free exchange and discourse during deliberations. 164 Theright to trial by jury, pursuant to the Sixth Amendmentand California Constitution, Article I, section 16,is a right to the verdict by a unanimousjury. (Apodaca v. Oregon (1972) 406 U.S. 404.) That right is abridged by CALJIC 17.41.1 because it coerces potential holdout jurors into agreeing with the majority. (See, e.g., Perez v. Marshall (9th Cir. 1997) 119 F.3d 1422, 1426-1428.) It is not a satisfactory answerto say that the matter is moot because no juror called any such problem to the court's attention. Such an answerignores the likelihood that a juror who would hold fast to an unpopular decision if he knew that he could not be hauled before the court to accountfor it. He may, nevertheless, be unwilling to do so if he knowshis fellow jurors are going to report him to the judge. Thelikelihood of such a "chilling effect" is a strong argumentin favor of simply not giving an instruction such as CALJIC No. 17.41.1 in the first place. There is no way to assess how muchthe instruction chilled speech in the jury room. There is no way to determine what thoughts and arguments were squelchedbyjurors who anticipated, feared and wished to avoid sanctionsat the handsofthe trial court. The giving ofthe instruction on "the integrity of a trial" amounted to a "structural" defect in the trial mechanism, muchlike a complete denial ofa jury. (Rose v. Clark (1986) 478 U.S. 570, 579; Arizona v. Fulminante (1991) 499 U.S. 279, 309.) Automatic reversal of the judgment is the appropriate remedy because where this novel and threatening instruction is given, "there has been no jury verdict within the meaning ofthe Sixth Amendment." (Sullivan v. Louisiana, supra, 508 U.S.at p. 280; People v. Cahill, supra, 5 Cal.4" at p. 502.) 165 VI. REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR VIOLATED MATTHEW’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS BY USING FALSE EVIDENCEIN THE GUILT AND PENALTY PHASES TO SECURE MATTHEW’S CONVICTIONS AND DEATH SENTENCE. A. Introduction. Asexplained below, throughouthis guilt and penalty phase arguments, the prosecutor consistently misled the jury by purporting to cite to several vital pieces of “evidence” which supported the charged crimes and warranted a death sentence, but which were, in fact, false. In so doing, the prosecutor effectively created, presented, and relied upon false evidence with which to convict Matthew and secure a death judgment, in violation ofMatthew’s state and federal constitutional rights to due process. As further set forth below, the judgment must be reversed because respondent will be unable to carry its burden ofproving the violations harmless beyond a reasonable doubt. B. The Prosecutor’s Use Of False Evidence Throughout His Guilt And Penalty Phase Arguments Violated Matthew’s State And Federal Due Process Rights To Fundamental Fairness. It is well settled that state and federal constitutional due process guarantees to fundamental fairness prohibit the state from using false evidence to obtain a conviction or a death sentence. (See, e.g., Banks v. Dretke (2004) 540 U.S. 668, 693, 699-702; United States v. Agurs (1976) 472 U.S. 97, 103; Giglio v. United States (1972) 405 U.S. 150, 153; Napue v.Illinois (1959) 360 U.S. 264, 269; People v. Seaton (2001) 26 Cal.4™ 598, 647; Belmontes v. Woodford, supra, 350 F.3d at p. 881; United States v. LaPage, supra, 231 F.3d at p. 491.) The prohibition against utilizing false evidence applies not only to the presentation of 166 testimony, but also to a prosecutor’s argument to the jury. (See, e.g., Banks v. Dretke, supra, 504 U.S. at pp. 699-700;Killian v. Poole (9" Cir. 2002) 282 F.3d 1204, 1209; United States v. Kojayan, supra, 8 F.3d at pp. 1317-1323; People v. Kasim (1997) 56 Cal.App.4™ 1360, 1386-1387.) While “the prosecution may argue all reasonable inferences, and has a broad range within which to argue the facts and the law,” he “may not mislead the jury.” (People v. Daggett, supra, 225 Cal.App.3d at p. 757; accord United States v. Blueford (9" Cir. 2002) 312 F.3d 962, 968; People v. Hill, supra, 17 Cal.4™ at p. 845; People v. Bell, supra, 49 Cal.3d at pp. 538-539; People v. Varona (1983) 143 Cal.App.3d 566, 570; see also United States v. Kojayan, supra, 8 F.3d 1315, 1317-1318 [prosecutor’sfalse remarks in summation improper and violated due process]; Paxton v. Ward (10™ Cir. 1999) 199 F.3d 1197, 1216-1218 [prosecutor’s misrepresentations in argumentinfringed uponrights to rebut and confront evidence and argument and warranted habeas relief]; People v. Kassim, supra, 56 Cal.App.4" at pp. 1586-1587 [prosecutor’s misrepresentations in summation renderedtrial fundamentally unfair].) Finally, “[t]he prosecution has an independent, constitutional duty to correct testimony he knowsto be false. Napue v.Illinois, 360 U.S. 264, 269-270 (1959); N. MarianaIslands v. Bowie, 243 F.3d 1109 (9™ Cir. 2001).” (Belmontes v. Woodford, supra, 350 F.3d at p. 881; accord Banks v. Dretke, supra, 504 U.S.at p. 695; People v. Kassim, supra, 56 Cal.App.4® at p. 1386.) Therefore, whether “defense counsel is aware ofthe falsity ofthe statementis beside the point.” (Belmontes v. Woodford, supra, at p. 881.) In other words, a defense objection is not required to trigger the prosecutor’s duty to ensure that the jury does not rely on false evidence to convict the defendant or sentence him to death. (Belmontesv. Woodford, supra, at p. 881.) Any argumentto the contrary “overlooksthe fact that the prosecutor’s duty to correct false [evidence] arises, not simply out of a duty offairness to the defendant, but out of ‘the free standing constitutional duty ofthe State and its representatives to protect the system against false [evidence].’ [Citation.].” (Ibid.) 167 Here, as noted in ArgumentsII, II, and IV, above, the prosecutor misrepresentedcritical facts in his guilt phase summationto the jurors. He emphatically argued that the evidence proved that Matthew had shotall ofthe victims with a cold-blooded, premeditated intent to kill. As “evidence” to support his theory, the prosecutor pointed to the “fact” that all ofthe victims had been shot in vital spots, rather than in the legs or other extremities. (RT 3441.) This “evidence” was false. In truth, Beulah John was shotin the leg and Rodney James wasshotin the arm or shoulder. (RT 2270, 2437, 2523, 2744-2745.) Similarly, to rebut the implication that they had been shot unintentionally, the prosecutor pointed to the “evidence” that John and James had each been shot twice. (RT 3292, 3441-3442.) Again, this “evidence” was false; in truth, each was shot only once. (RT 2270, 2437, 2523, 2557, 2568-2569.) Furthermore, as discussed in ArgumentI, the prosecutor’strial theory was that Matthew, not Michael, was the shooter. In support of this theory, the prosecutor pointed to the “evidence”that stippling was absent from Dewayne Arnold’s skin and clothing. (RT 3454.) This “evidence,” the prosecutor argued, proved that Arnold had not been shot within close range, which,in turn, proved that Matthew — whowasstanding further away from Arnold than Michael — must have been the shooter. (RT 3454.) Again, this “evidence” was false. Dewayne Arnold’s shirt was not preserved or tested for the presence ofstippling. (RT 2012- 2013.) Therefore, there was no evidencethat stippling was absent from his clothing. Similarly, and as discussed further in Arguments VIII and IX, below, the prosecutor repeatedly misrepresented the facts in his penalty phase summation in order to portray Matthew as a cold-blooded predator who deserved to die. He vehemently argued that Matthew,as the shooter, did not intend merely to kill the five people he shot, but intended to kill as many people as possible. To support his theory, he pointed to the “evidence” that Matthew only ceasedfiring, and was prevented from killing more victims, because he ran out of ammunition: “What if 168 he hadn’t run out of ammunition in that room? Do you think at some point he just thought: I’ve shot up enough people, I’m going to stop now. Hewaseither going to run out ofvictims or run out of ammunition, one ofthe two. Fortunately, it was ammunition.” (RT 3921.) Again, this powerful “evidence”ofa particularly cold- blooded shooting spree was simply untrue. In truth, the evidence showedonly that 14 rounds of .223 ammunition were fired from the same gun. (RT 2557, 2568-2569.) Because the gun actually used was never recovered, there was no direct evidencethat it carried only 14 rounds of ammunition. Nor wasthere any circumstantial evidence to support the inference that the shooter ceased firing only because he ran out of ammunition. According to the prosecution’s own guilt phase evidence, at the time ofthe shooting, magazines that fired .223 ammunition could hold anywhere from five to “50 or even more” rounds. (RT 2865-2866.) Indeed, magazines carrying 20 to 30 rounds were “fairly common.” (RT 2866.) Not a single witnesstestified that the shooter ever made an unsuccessful attempt to fire the gun. Not a single witnesstestified to any matter that would support such an inference, such as hearing the sound ofa clicking trigger. In short, the prosecutor’s representation of the evidence was an outright falsity. Continuing his themeofportraying the shooting as deliberative and sadistic rather than reactive and precipitous, the prosecutor pointed to the “evidence” of “powderburns on the victim[s]. Placing the gun up to their body, sending a piece of lead going thousandsof feet per second through their body again and again.” (RT 3921.) Again, this “evidence” was false. There was no evidence that any of the victims suffered powder burnsor that the shooter placed the gun against any victim’s body and repeatedly fired it. The pathologist did agree that stippling can loosely be described as powder burnsto the skin and explainedthatit is usually found whenthe person has been shot within close range, generally within about 20 inches. (RT 1948-1950.) However, she explicitly testified that she did not find stippling to the skin, or “powder burns,” on any ofthe victims. (RT 1950, 1959, 169 1996, 2012-2103.) Indeed, she testified that both Watchman and Arnold “had the appearance of distant wounds” andthat Trudell had been shot from a distanceofat least three feet or more. (RT 1951, 1959.) Furthermore, in response to the mitigating fact that Matthew had no criminal record, the prosecutor took pains to specify that the evidence revealed only the absence of an “adultfelony conviction record.” (RT 3920, emphasis supplied.) In this regard, he emphatically argued, “he couldn’t have a long adult history for Christ’s sake, he was only 18 when he did this. It took him only a few monthsto get to the top. That’s somehow supposedto be mitigation? You’re supposedto think that he’s somehowless deserving ofwhat he’s got coming because ofthat? I suggest to you that there’s no mitigation here.” (RT 3920, emphasis supplied.) The prosecutor’s implication was obvious that while Matthew did not have an “adult felony conviction record,” he may well have had a long juvenile or other record to which the prosecutor was privy but the jury was not. Once again, the implication was absolutely false. Matthew had norecordat all. (Probation Report at p.6.) Similarly, the prosecutor argued that life without parole would not be an appropriate punishment because Matthew would enjoy many aspects oflife in prison ofwhich he had deprived the victims, such as “get[ting] married and hav[ing] conjugal visits.” (RT 3922.) These remarks, which were unsupported by any evidence presentedattrial, were also false. Prisoners sentencedto life without parole are not allowed conjugalvisits, or overnight family visits. (Pen. Code § 2601 [amendedin 1997 to delete language granting prisoners “right” to “personal visits”]; CCR Title 15, section 3177, subd. (b)(2) [prisoners sentencedto life without parole are not entitled to “family visits,” defined as overnight visits with family members].) Furthermore, and as discussed in greater detail in the arguments below, given the dearth ofaggravating evidence, the prosecutorrelied heavily on the impact ofthe crimes on the victims as a reason to vote for death. In this regard, 170 the prosecutor pointed to the “evidence” that Rodney James, who had survived the shooting, turnedto heroin as result ofthe shooting and died of a heroin overdose twoyears later, a death for which Matthew wasresponsible. (RT 1871, 3885- 3886.) As the prosecutor emphasized, James “didn’t die right away, he died a slow death over a couple ofyears due to intravenousheroin use and eventual overdose. But you can consider that, what he went through because ofwhat someoneelse did.” (RT 3885-3886.) Once again, the prosecutor grossly misrepresented the evidence. There was never any evidence presented that James had ever even used heroin. While the prosecutor did introduce James’s death certificate, that documentrevealed nothing more than that he died two years after the shooting; the box entitled “cause of death” was marked “pending” and indicated an autopsy had been performed but did not reveal its results. (Trial Ex. 35.) In short, the prosecutor’s representation that there was evidence that James had died of a drug overdose as a result ofthe shooting was utterly false. Finally, in his penalty phase argument, the prosecutor embarked upon a scathing attack on Matthew’s defense counsel, Mr. Costain, as a liar whom the jurors should not trust. As “evidence” to support his argument, the prosecutor quoted at length from a guilt phase summation, whichhe attributed to Mr. Costain and attacked as false. (RT 3887-3889 [citing to RT 3370 and 3372, quoting from guilt phase summation, and attributing it to Mr. Costain].) For instance, he quoted at length from a guilt phase argument suggesting that one ofthe party guests may have “planted” Ms. Souza’s purse in Esther Dale’s trunk after the shooting. (RT 3887, citing and quoting from RT 3772.) The prosecutor used this summation to personally attack Mr. Costain: “That’s the argument that [Matthew’s counsel] got up and madeto you. .. . Arguing this to you all the time when he knowsthatif this thing goes to penalty phase, he’s all prepared to put on a woman I was not aware of until the penalty phase, May Ruth Underwood. Rememberthe woman that camein, she’s the one that the defense put on to say that she had to give 171 Rebecca a ride home 36 times because she locked her purse and her keys in Esther’s trunk. Andyetit is the same guy arguing to youin the guiltphase: how do we know that’s how it happened? You know,think aboutthingslike that... . Remember that remember Mr. Costain’s argumenttoyou in the guiltpart when he gets up here and argues lingering doubt as a reason to impose the life without possibility ofparole instead ofthe death penalty.” (RT 3887-3889, emphasis supplied.) In truth, however, the arguments from which the prosecutor quoted at length, and for which he castigated Matthew’s counsel, were the arguments of Michael’s counsel, not Matthew’s counsel. (RT 3370, 3772 [summation of Michael’s counsel].) In sum, throughouthis guilt and penalty phase arguments, the prosecutor twisted and mischaracterized the facts to create and use false evidence with which to convict Matthew and persuade the jury to vote for death. The prosecutor’s conduct violated Matthew’sstate and federal constitutionalrights to due process. (See, e.g.. Banks v. Dretke, supra, 504 U.S.at pp. 699-700;Killian v. Poole, supra, 282 F.3d at p. 1209; United States v. Kojayan, supra, 8 F.3dat p. 1318; People v. Kasim, supra, 56 Cal.App.4" at pp. 1386-1387; People v. Daggett, supra, 225 Cal.App.3d at p. 757.) It is true that counsel did not object to the prosecutor’s false and misleading representation ofthe evidence to the jurors. However, as noted above, such a n objection is not necessary to trigger the prosecutor’s independent duty to ensure that it does not present or rely upon false evidence. (See, e.g., Banks v. Dretke, supra, 504 U.S. at p. 695; Belmontes v. Woodford, supra, 350 F.3dat p. 881; People v. Kassim, supra, 56 Cal.App.4”™ at p. 1386.) Hence, such an objection is not necessary to preserve the prosecutor’s breach ofhis duty for appeal. (Belmontes v. Woodford, supra, at p. 881; cf. Peoplev. Ellison (2003) 111 Cal.App.4™ 1360, 1370 [given that prosecutor had independent obligation to object to particular error, appellate court reviewed and corrected error even in 172 absence of defense counsel’s objection]; People v. Abbaszadeh (2003) 106 Cal.App.4™ 642, 649 [same].) Cc. Reversal Is Required. Where,as here, the state violates the federal constitution by relying upon false evidence to obtain a conviction or death sentence, the judgment must be reversed unless the state proves the violation harmless beyond a reasonable doubt. (United States v. Bagley (1985) 473 U.S. 667, 679, n.9; United States v. LaPage, supra, 231 F.3d at p. 491.) Under this standard, reversal is requiredifthere is “any reasonable likelihood”that the false evidence “affected the judgment ofthe jury.” (Ibid.) Thereis certainly a substantial likelihood that the prosecutor’s presentation offalse evidence affected both the guilt and penalty judgments ofthe jury. Asa preliminary matter, several ofthe prosecutor’s allusionsto false evidence implied that the prosecutor wasprivy to evidence that the jurors were not, such ashis misrepresentation that Matthew would be entitled to conjugal visits if sentenced to life without parole, that Matthew had a criminal record other than an “adult felony” record, and that Rodney James had becomea heroin addict and died of a heroin overdoseas a result of the shooting. Given the special regard juries have for prosecutors, as discussed in ArgumentIJ-B-2, above, such misrepresentations are well recognized as carrying great weight with jurors. (See, e.g., People v. Bolton (1979) 23 Cal.3d 208, 213 [recognizing that such statements, though “worthless as a matter of law,” can by “dynamite” for jurors]; People v. Wagner (1975) 13 Cal.3d 612, 619-620 [where prosecutor suggestshe is privy to evidence that jury never heard, it is reasonable to assumethat jury believed prosecutor telling truth]; United States v. Kojayan, supra, 8 F.3d at p. 1323 [emphasizing that “Evidence matters; closing argument matters; statements from the prosecutor 173 matter a great deal” and holding prosecutor’s false statements in summation required reversal].] Other remarks were gross misstatements ofthe evidence that had been presented, such as the numberandlocations ofthe gunshot woundsandthat the shooter only ceased firing when he ran out ofammunition. Respondent may argue that the jurors would have recalled the correct evidence and therefore the prosecutor’s misrepresentations ofthat evidence were harmless. On this record, any such argument mustbe rejected. Following the penalty phase verdict, Matthew applied to the trial judge to modify the death verdict. (CT 794-797.) Of course, a trial judge’s ruling on such an application is limited to the evidence actually admitted and presented to the jury. (See, e.g., People v. Crittenden (1994) 9 Cal.4" 83, 151 [and authorities cited therein].) In ruling on Matthew’s application, however, the trial judge in this case purported to refer to evidence that did not exist, but which corresponded only to the prosecutor’s misrepresentations. For instance, the trial judge emphasized the non-existent “evidence,” created by the prosecutor, that Matthew did not stop shooting people until he had run out of bullets. (RT 3975.) Similarly, the judge emphasized that “these were particularly cold-blooded shootings; the evidence was uncontradicted and overwhelmingthat at least one ofthe fatal wounds was at close range to the head ofLeslie Trudell” and pointed to the evidence about “stippling, which shows...a shot within two feet ofMr. Trudell to his head.” (RT 3975.) Not only wasthis incorrect as to Trudell, who had been shot from at least a distance of three feet or more and did not bear any signs of stippling; it was incorrectas to all of the other victims, none ofwhom hadbeen shotin heador boresigns of stippling to their skin. If the experiencedtrial judge, who had the benefit of actually reviewing the record before ruling on the application to modify the death judgment, was so 174 misled by the prosecutor’s representation of the evidence, it is highly likely that the lay jurors were, as well.”° Moreover, the prosecutor’s use of false evidencecutstraight to the heart of the pivotal issues presented by this case — whether Matthew killed and/or | attempted to kill the victims with premeditation and deliberation, whether he intendedto kill all ofthe victims rather than only Arnold and Watchman, whether Matthew was the actual shooter, and whether death was the appropriate punishmentdue to the circumstances of the crimes alone. As discussed in Arguments I through IV, above, the evidence going to these issues was extraordinarily close. Similarly, as discussed in detail in Argument VIII, below, the evidence supporting the prosecution’s case for death was equally close. The prosecution presented no aggravating evidence apart from the circumstances ofthe crimes themselves and their impact on the victims andtheir families — an aggravating factor that wasartificially inflated with the prosecution’s false statements. At the same time, Matthew presented an enormous amount of compelling mitigating evidence. The prosecutor’s use offalse evidence thus served to unfairly tip the scales ofthis closely balanced case in its favor. (See, e.g., King v. United States (D.C. 1967) 372 F.2d 383, 395 [where prosecutor makes false representations in summation regarding “nerve center issue(s),” the “prejudice digs in and holds on”].) Further, the prosecutor’s use of false evidence to attack the integrity of Matthew’s defense counsel had a devastating effect on the penalty phase. As discussed in detail in Arguments VIII and XIV,the trial court refused to provide requested instructions regarding lingering doubt as to Matthew’srole in the shooting and on the scope ofmitigating evidence the jury could consider. Without 6 Furthermore, as discussed in detail in Argument IX, below,although the jurors wereinstructed in the guilt phase that the statements of counsel were not evidence (CT 670, 674), they were told to disregard that instruction during the penalty phase (CT 781). 175 those instructions, Matthew was forced to rely on the arguments of his counselto guide the jury’s consideration ofhis mitigating evidence. (Cf., e.g., People v. Wright (1990) 52 Cal.3d 367, 440-442 [observing special instructions regarding mitigating evidence unnecessary where defense counsel’s argument correctly sets forth applicable rules]; see also Florida v. Nixon (2004) SsU.S. 125 S.Ct. 551 [emphasizing importance of defense counsel’s credibility with jurors in offering mitigation at penalty phase].) Thus, defense counsel’s credibility was vital to Matthew’s penalty phase defense. The prosecutor’s use of false evidence to impugn the integrity ofhis counsel and expressly urge the jurors to reject counsel’s representations because he hadlied to them in his guilt phase summation thus crippled Matthew’s penalty phase defense. (See, e.g., Bruno v. Rushen 9" Cir. 1983) 721 F.3d 1193, 1195 [improper attacks on defense counsel’s integrity “severely damage an accused’s opportunity to present his case before the jury”]; coosee also People v. Hill, supra, 17 Cal.4" at p. 832 [“’an attack on the defendant’s attorney can be seriously prejudicial . . . (and) is never excusable’”].) That the prosecutor’stactic had its desired effect of dissuading the jurors from accepting defense counsel’s representations is evident from the record. In their penalty phase arguments, both of Matthew’s attorneys informed the jurors that, regardless ofwhat action they took in the penalty phase, it would have no effect on their guilt phase verdicts ensuring that Matthew would never be released from prison. (RT 3894, 3904.) Nevertheless, during its penalty phase deliberations, the jurors submitted a written question to the court inquiring into the consequencesofjury deadlock and specifically whether deadlock would result in reversal of their guilt phase verdicts. (RT 3933; CT 755; see also RT 3934 [in discussing responsetojury inquiry, both defense counsel reminded the court that they had answeredthis question in their summations].) In other words, the prosecutor successfully persuaded the jury to be unwilling to accept defense counsel’s representations without independentverification. 176 Forall ofthese reasons, respondent cannot prove beyond a reasonable doubt that the prosecutor’s use of false evidence in the guilt and penalty phases was harmless. At the very least, the cumulative effect ofthe prosecutor’s conduct along with the other errors committed throughoutthe guilt and penalty phases (Arguments I through V and VIII through XVI) was prejudicial and violated Matthew’s right to a fair trial and reliable guilt and penalty phase determinations, as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and articles 7 and 15 ofthe California Constitution. (See, e.g., Chambers v. Mississippi, supra, 410 U.S. 284 [cumulative effect oferrors violated defendants rightto fair trial]; People v. Hill, supra, 17 Cal.4™ at pp. 844- 847 [same]; Alcala v. Woodford (9" Cir. 2003) 334 F.3d 862, 883, 893 [same]; Mak v. Blodgett (9Cir. 1992) 970 F.2d 614, 622-625.) The judgment must be reversed. (Ibid.) 177 ERRORS UNDERLYING THE PENALTYPHASE VII. THE TRIAL COURT’S EXCLUSION OF QUALIFIED JURORS AND REFUSAL TO EXCLUDE DISQUALIFIED JURORS UNDER THE WAINWRIGHT V. WITT STANDARD VIOLATED MATTHEW’SRIGHTSTO A FAIR AND IMPARTIAL JURY, TO DUE PROCESS OF LAW, AND TO A RELIABLE PENALTY DETERMINATION AS GUARANTEEDBY THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS. A. Introduction. Thetrial court excused two prospective jurors for cause who had voiced reservations about imposing the death penalty, but whoalso clearly indicated that they would and could imposethe penalty if the circumstances warranted it. At the same time, the court refused to excuse a prospective juror for cause whonot only voiced reservations about imposinglife without parole for a defendant convicted ofpremeditated murder, but whoalso clearly stated that the defense would carry the burden ofpersuading him to vote forlife and was unable to conceive of any circumstances that could satisfy that burden. That biased juror actually sat on the jury that fixed Matthew’s punishmentat death. The court’s exclusion of qualified jurors and refusal to exclude the disqualified juror violated Matthew’sright to a fair and impartial jury, as guaranteed by state law andthe Fifth, Sixth, Eighth and the Fourteenth Amendments. Hence, the penalty judgment must be reversed. Moreover, as demonstrated by these rulings and others, the court’s application of the Wainwright v. Witt standard for exclusion was inconsistent and unfairly favored the prosecution and the dismissal for causeoflife-inclined venirepersonsin violation of state law and Matthew’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. With peremptory challenges, the prosecutor removed the few life-inclined venirepersons who remainedafterthe trial court’s 178 unfair application ofWitt. Ultimately, ofthe jury that sentenced Matthew to death, four membersidentified themselves as “strongly in favor” of the death penalty; four identified themselves as “moderately in favor” ofthe death penalty; and four identified themselves as “neutral.” All ofthe prospective jurors who had expressed opposition to, or conscientious scruples against, the death penalty were excluded from the jury. As fully explained below, under clearly established United States Supreme Court precedent, the death sentence imposed by such a jury cannot be executed without violating the federal constitution. For all of these reasons, the death judgment mustbe reversed. B. The General Legal Principles. A criminal defendantis entitled to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 16 ofthe California Constitution. (See, e.g. Morgan v. Illinois (1992) 504 U.S. 719, 727 [and authorities cited therein]; People v. Wheeler (1978) 22 Cal.3d 258, 272.) In capital cases, ifthe state has excluded from the jury members ofthe community with any reservations about capital punishment, the sentencing bodyis not impartial. Of course, “the decision whether a man deservesto live or die must be made on scales that are not deliberately tipped toward death.” (Witherspoonv. Illinois (1968) 391 U.S. 510, 521-522, fn. 20.) Hence, when the “pro-life” side of 29 66.the spectrum is excluded, the State “crosse[s] the line ofneutrality,” “produce[s] a jury uncommonly willing to condemn a man todie,” and violates the Sixth and Fourteenth Amendments. (Id., at pp. 520-521.) “[A] sentence of death cannot be carried out ifthe jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientiousor religious scruples against its infliction.” (Id. at p. 522, fn. omitted.) 179 The Court in Witherspoon suggested that a prospective juror may be excused for cause only if he makesit “unmistakably clear” that he would “automatically vote against the imposition of capital punishment without regard to any evidence that might be developedat the trial in the case before” him. (Witherspoonv.Illinois, supra, 391 U.S. at p. 522, n.21.) Revisiting the issues 18 years later, the Court reaffirmed the fundamental principles underlying the Witherspoon decision and “clarified” the test for determining when a juror may be excluded for cause. (Wainwright v. Witt (1985) 469 U.S. 412, 424-426.) Under the Witt standard, a prospective juror may be excused for cause based upon his or her viewsofthe death penalty only ifthe juror’s answers conveya “definite impression”(Id. at p. 426) that his or her views “would ‘prevent or substantially impair’ the performanceofhis duties as a juror in accordance with his instructions and his oath.” (Wainwright v. Witt, supra, at p. 424, adopting test applied in Adams v. Texas (1980) 448 U.S. 38, 45; see also People v. Ghent (1987) 43 Cal.3d 739, 767 [adopting Witt standard]; accord, e.g., People v. Stewart (2004) 33 Cal.4™ 425, 440-441; People v. Heard (2003) 31 Cal.4™ 946, 963; People v. Crittenden (1994) 9 Cal.4th 83, 121; People v. Mincey (1992) 2 Cal.4th 408, 456.) In other words, “[a] prospective juror is properly excluded [only] if he or she is unable to conscientiously consider all ofthe sentencing alternatives, including the death penalty where appropriate.’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4™ 926, 974; accord People v. Heard, supra, 31 Cal.4™ at p. 958.) “The real question is whether the juror's views about capital punishment would prevent or impair the juror's ability to return a verdict of death in the case before the juror.” (People v. Heard, supra, at pp. 958-959, internal quotation marks omitted, quoting from People v. Ochoa (2001) 26 Cal.4th 398, 431, People v. Bradford (1997) 15 Cal.4th 1229, 1318 and People v. Hill (1992) 3 Cal.4th 959, 1003.) “’Because the qualification standard operates in the same manner whethera prospective juror's views are for or against the death penalty (Morgan v.Illinois (1992) 504 U.S. 719, 726-728),it is equally true that the 'real 180 question’ is whetherthe juror's views about capital punishment would prevent or impair the juror's ability to return a verdict oflife without parole in the case before the juror.’ (People v. Cash (2002) 28 Cal.4th 703, 719-720.)” (People v. Heard, supra, 31 Cal.4™ at p. 959.) The moving party bears “the burden of demonstrating to the trial court that the [Witt] standard[is] satisfied as to each of the challenged jurors.” (People v. Stewart, supra, 33 Cal.4" at p. 445; accord Wainwright v. Witt, supra, 469 U.S.at p. 423.) “Assessing the qualifications ofjurors challenged for cause is a matter falling within the broad discretion ofthetrial court. [Citation].” (People v. Weaver (2001) 26 Cal.4" 876, 910; see also Wainwright v. Witt, supra, at p. 429.) Thecourt’s ruling ordinarily is entitled to deference and will be upheld on appeal if supported by substantial evidence. (See, e.g., Wainwright v. Witt, supra, at pp. 426-430; People v. Stewart, supra, at p. 451; People v. Heard, supra, 31 Cal.4" at p. 965; People v. Memro (1995) 11 Cal.4™ 786, 817-818.) Ofcourse, judicial discretion “implies absence ofarbitrary determination, capricious disposition,” “free from partiality.” (People v. Surplice (1962) 203 Cal.App.2d 784, 791; accord, e.g., People v. Warner (1978) 20 Cal.3d 678, 683 [discretion is “neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impedeor defeat the ends of substantial justice.”].) Furthermore, “a trial court’s broad discretion in the conductofvoir dire is nevertheless subject to essential demandsoffairness.” (Hughes v. United States (6" Cir. 2001) 258 F.3d 453, 457; Wolfe v. Brigano (6" Cir. 2000) 232 F.3d 499, 504, conc. opn. of Wellford, J.; U.S. Const., Amend. XIV.) Hence, a trial court must apply the Witt standard in an even-handed and impartial manner. (See, e.g., People v. Champion,supra, 9 Cal.4879, 908.) A court’s application ofthe Witt standard in an arbitrary, capricious, or partial manner does not comport with the essence of fairness guaranteed by due process of law. (Cf. Gray v. Klauser (9" Cir. 2001) 282 F.3d 633, 645-648, 651 [and 181 authorities cited therein -- a trial court’s unjustified or uneven application of legal standard in a way that favors the prosecution over the defense violates due process].) Certainly, such rulings amountto an abuse of discretion, whichare not entitled to deference. (See, e.g., People v. Welch (1993) 5 Cal.4™ 228, 234.) Finally, the improper exclusion of even a single qualified juror for cause underthese standards requires reversal per se. (See, e.g., Gray v. Mississippi (1987) 481 U.S. 648, 666-668; Davis v. Georgia (1976) 429 U.S. 122; People v. Heard, supra, 31 Cal.4™ at pp. 965-966.) Conversely, if even a single disqualified juror biased in favor ofthe death penalty under the Witt standard is “empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.” (Morgan v.Illinois, supra, 504 U.S. at p. 729; accord, e.g., People v. Boyette (2002) 29 Cal.4™ 318, 416; People v. Weaver, supra, 26 Cal.4™ at p. 910.) Applying the foregoingprinciples to this case, it is clear that the trial court erroneously excluded qualified jurors merely because they had reservations about the death penalty, erroneously refused to exclude a disqualified juror who was actually biased in favor ofthe death penalty, and otherwise applied the Witt standard in an arbitrary, capricious, and partial manner. The penalty judgment must be reversed. C. Prospective Juror Madaili. 1. Prospective juror Madali’s responses to the jury questionnaire and on voir dire and her dismissal for cause. The juror questionnaire asked the prospective jurors to select one offive optionsthat “most accurately state[d] [their] philosophical opinion[s] regarding the death penalty,” ranging from “strongly against”to “strong in favor.” Prospective juror Madali identified herself as “neutral.” (CT 5181.) Asked to described her “general feelings” about the death penalty, she stated: “I believe the 182 law is the law, you must abide by the law ofthe land andifthat means the person/sfall under that category, so be it. I myself really don’t know howI feel aboutthe death penalty. I believe that God allowscertain things andit all depends. I am really unsure.” (CT 5181.) As to her “general feelings” about the punishmentof‘life without the possibility ofparole,’” Ms. Madali replied, “T don’t disagree with it. It all depends on the circumstances.” (CT 5185.) Asked which ofthe two penalties was the more severe punishment and why, she declined to choose oneoverthe other, explaining “depending on the person, one could be more severe than the other, so I choose neither one.” (CT 5185.) Asked whether she would “want to know more about the defendant’s background and family history before deciding which penalty to impose,” she answeredthat “it depends on the nature of the crime.” (CT 5182, emphasis.) Asked if she would consider such information if “required” to do so, she agreed that she would. (CT 5185.) Ms. Madali also identified herself as a Christian and taught children’s classes at her church. (CT 5168 [Vol. 19].) Her church did not advocate either in favor or against the death penalty. (CT 5182-5183.) She also indicated that her religious beliefs would not interfere with her ability or willingness to serve as a juror. (CT 5168.) She was “unsure”if she held “any religious or philosophical principle that would affect [her] ability to vote for the death penalty as ajudgment in this case.” (CT 5182.) Onvoir dire, the court immediately probed into Ms. Madaili’s expressed uncertainty over her personal feelings about the death penalty. (RT 896.) The court explained that the selection process wasintendedto ensurethatthesitting jurors could “realistically consider two options,” one ofwhich is the death penalty. (RT 896-897.) Ms. Madali respondedthat “it would be really, really difficult for me to make that decision. I mean it would take a whole lot before that decision could be made by me.” (RT 897.) The court asked her to explain what she meant by a “whole lot.” (RT 897.) She replied, “it is basically the whole circumstance [sic]. .. . 1 mean everything that’s taken and accounted for. The evidence, the 183 person, what — the circumstance, what happened, all ofthat.” (RT 897.) Thereafter, using a “whole lot” as a synonym for the circumstances under which Ms. Madali would impose the death penalty, the following colloquy occurred: [By the court:] .. . But when you talk about making that decision, is there something within you that you’re kind ofwarning meabout, that you might not be able to do that? You mightnot be able to realistically consider both choices because ofyour own feelings or the unsureness ofyour feelings? A: Yes. Q: As you —arethere, now,realistically, practically thinking that you could keep an open mind,hear all ofthe evidence and depending on the evidence that you could impose the death penalty? Do youthink you could? A: I don’t know how to answerthat. It really —I mean I - to me it would really take a whole — I mean when I say a wholelot, I don’t know what would make it — I can’t say that I wouldn’t say no to the death penalty. But I — it would take a whole, whole, whole,lot. Q: Ifan individual were charged with, oh, being a major participant in the holocaust, if an individual were charged with blowing up a public building with 200 people including infants in it are those things you think — A: A possibility. Q: -- fit a whole lot? A: Yes. Q: Ifsomebody’s charged with shooting a gun and shooting several people, does that measure up to a whole lot in your mind? A: No. All depends onthe state ofmind too. Q: Okay. I understand as you’re struggling with this trying to express your feelings, as I understand it, you’re conveying that you really have a problem with the death penalty? 184 A: Yes. Q: But you also have thought about it enough to appreciate a lot can go into it besides a body count; but then you also comeback to the idea that you really have a problem with the death penalty? A: Yes. (RT 897-899.) The court thus concluded its voir dire examination. (RT 899.) Michael’s counsel questioned Ms. Madali further. (RT 899.) He explained that “there is no problem, even underthe law, that you have a hard time to impose the death penalty”and, as the court had instructed the jurors, it was necessary for a jurorto find that “the aggravating circumstancesare so substantial that in comparison with the . . . mitigating circumstances, that it would warrant death instead oflife.” (RT 899-900.) He further explained that the real question was whether she could be open to both options. (RT 900.) Ms. Madali responded,“in my heart, it would make me sick to makethat decision.” (RT 900.) The court sustained the prosecutor’s objection to counsel’s reply that “it should make any intelligent, compassionate human being sick.” (RT 900-901.) Again, Michael’s counsel askedher, “the question is, can you — can you be opento that decision? Both ways?” (RT 901.) Ms. Madali responded with an unequivocal “yes.” (RT 901.) The prosecutor declined to question Ms. Madali and instead immediately challenged her for cause. (RT 901.) In support ofhis challenge, the prosecutor argued that Ms. Madali’s “feelings regarding the death penalty would prevent or substantially impair her ability to follow the law, I think was demonstrated basically talking [sic] to her strong Christian faith,” as evidenced by heractive role in her church, “and she has real reservations about imposing the death penalty in any case.” (RT 910.) The prosecutor addedthat she had indicated only that she would “possibly” “consider” the death penalty for someone involved in the Holocaust or the Kansas City 185 bombing. (RT 911.) He pointed to her statement that “in her heart . . . it would make hersick” to vote for the death penalty in a case such as this, where “someone. . shoots a few people with a gun.” (RT 911.) Based on these responses, the prosecutor arguedthat, “try as she might, she could never vote to impose the death penalty in any case.” (RT 911.) . Michael’s counsel responded by acknowledging that Ms. Madali would find it very difficult to impose the death penalty and that, “in her heart, it would make her sick.” (RT 911-912.) However, this was insufficient to excuse her; “under the law she’s still open to the death penalty and I thought mylast question and her last answerindicated that.” (RT 912.) He also reminded the court that her responses were similar to those ofprospective juror Labuda, who “was very much pro death,” who wasthe subject ofthe defense’s most recent challenge for cause, but whom court had refused to excuse on the ground that he did not meet the Witt standard for disqualification. (RT 912; see also part F-1-a, below.) Matthew’s counsel “submit[ted]”the matter on the arguments. (RT 914.)7" The court disagreed, observing that Mr. Labuda “wasall over the place;” while Ms. Madali “was not all over the place.” (RT 912.) Rather, the court emphasized, she wasvery clear that she would be “sickened at the thought of ” voting to execute someone. (RT 913.) This statement “seemed to show the extremity ofthe situation to me.” (RT 913.) The court stated, “I don’t think we’re setting up a standard ofjurors are expected to becomesick aboutthe decision they’re supposed to make” (RT 901) and criticized the defense position that this was “an appropriate standard.” (RT 912.) As to Ms. Madaili’s assurancethat she would consider both penalties if the law so required, the court dismissedit, observing that defense counsel “got one right answer outofher after that unique standard that was set up, but she struggled andstill was making it clear, even as 2 Onceagain, early in the proceedings, the trial judge directed the attorneys that he only wanted to hear argument from oneattorney during trial, preferably the attorney who had questioned the prospective juror or the witness. (RT 435.) 186 she struggled, that it might be possible, but it took secondsofsilence before she would even suggest that.” (RT 912-913.) Finally, the court noted for the record that there were“five, six-second delays sometimes when she was asked about someofthese questions. She wasreally struggling.” (RT 911.) Concludingthat the issue was not“close,” the court granted the challenge for cause. (RT 914.) 2. The exclusion of prospective juror Madali for cause was unsupported by substantial evidence that herfeelings about the death penalty would prevent or substantially impairher ability to perform her duties as a juror. From the foregoing, it is clear that the court excused Ms. Madali based on her statement that it would makeher “sick”at “heart” to vote to execute someone, combined with her “struggle” over the questions as evidenced by the “five, six second delays” in answering some ofthem. (RT 901, 911-913.) However, contrary to the court’s ruling, this did not constitute substantial evidence that her feelings would preventor substantially impair her ability to perform her duties as a juror under the Witt standard. It “is clear that a prospective juror's personal conscientious objection to the death penalty is not a sufficient basis for excluding that person from jury service in a capital case under Witt, supra, 469 U.S. 412.” (People v. Stewart, supra, 33 Cal.4" at p. 446.) As the United States Supreme Court has explained, “notall those who opposethe death penalty are subject to removal for cause in capital cases; those whofirmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they clearly state that they are willing to temporarily set aside their own beliefs in deferenceto the rule of law.” (Lockhart v. McCree (1986) 476 U.S. 162, 176; accord Witherspoonv.Illinois, supra, 391 US. at p. 522 [“a sentence of death cannot be carried out ifthe jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or 187 religious scruples againstits infliction”]; Adamsv. Texas, supra, 448 U.S. 38, 50 [in applying the “prevent or substantially impair” standard, “neither nervousness, emotional involvement, norinability to deny or confirm any effect whatsoeveris equivalent to an unwillingness on the part ofthe jurors to follow the court's instructions and obeytheir oaths, regardless oftheir feelings about the death penalty"]; People v. Stewart, supra, 33 Cal.4"at p. 446, People v. Heard, supra, 31 Cal.4" at pp. 959-965[juror improperly excused for cause whereheinitially stated that he believed life without parole was worse punishmentand that psychological factors would weigh heavily enough that he would probably vote against death penalty, but indicated that he would follow the law and would not automatically vote against the death penalty].) Certainly, it is beyond dispute that “’[e]very right-thinking man would regard it as a painful duty to pronouncea verdict of death upon his fellow man.’ [Citation.]” (Witherspoonv.Illinois, supra, 391 U.S. at p. 515, n.8; accord, ¢.g., Eddings v. Oklahoma (1982) 455 U.S. 104, 127, dis. opn. ofBurger, J. [“It can neverbe less than the most painful of our duties to pass on capital cases”]; McGauthav. California (1971) 402 U.S. 183, 208 [recognizing the “truly awesomeresponsibility of decreeing death for a fellow human being”].) Hence, the pain or extreme difficulty that otherwise inheres in the decision to execute another human being simply does not establish that a prospective juror would be prevented from,or substantially impaired in, performing her duties. (People v Stewart, supra, 33 Cal.4™ at pp. 446-449.) As the Court has explained: In light of the gravity ofthat punishment, for many members of society their personal and conscientious views concerning the death penalty would makeit ‘very difficult’ ever to vote to imposethe death penalty. . . . [H]owever, a prospective juror who simply would find it ‘very difficult’ ever to impose the death penalty, is entitled —_ indeed, duty-bound — to sit on a capital jury, unless his or her 188 personal viewsactually would prevent or substantially impair the performanceofhis or her duties as a juror. .... Because the California death penalty sentencing process contemplates that jurors will take into account their own values in determining whether aggravating factors outweigh mitigating factors such that the death penalty is warranted, the circumstance that a juror's conscientious opinionsor beliefs concerning the death penalty would makeit very difficult for the juror ever to impose the death penalty is not equivalent to a determination that such beliefs will "substantially impair the performance ofhis [or her] duties as a juror" under Witt, supra, 469 U.S. 412. ... A juror mightfindit very difficult to vote to impose the death penalty, and yet such a juror's performancestill would not be substantially impaired under Witt, unless he or she were unwilling or unable to follow thetrial court's instructions by weighing the aggravating and mitigating circumstancesofthe case and determining whether death is the appropriate penalty under the law. (People v. Stewart, supra, 33 Cal.4™ at p. 446.) Pursuant to these authorities, it is abundantly clear that a prospective juror’s statementthat it would be “difficult” or “painful” or make her “sick” at “heart” to vote to kill another human beingis notitself sufficient to exclude her underthe Witt standard. Not once did Ms. Madialistate that this feeling would prevent or substantially impair her ability to perform her duties or impose the death penalty if the circumstances warranted it. Not once did she indicate that she could not set her personal feelings aside and follow the law. To the contrary, whenever she was asked directly if she would consider both penalties ifthe law required it, she indicated an unambiguous willingness to follow the law, despite whatever personal feelings she may have had about the death penalty. In her questionnaire, Ms. Madaliclearly stated that although “I myself really don’t know how I feel about the death penalty,” “J believe the law is the law, you must abide by the law ofthe land and if that means the person/sfall under that category,so beit.” (CT 5181, emphasis supplied.) None ofher answers on voir dire detracted from, undermined, or contradicted this unambiguous statement ofherability to serve as 189 a juror. To the contrary, although shestated that it would take a “whole lot” and be a painful and “really difficult” decision, she clearly indicated that she could. vote for the death penalty if the “circumstance[s]” warranted it. (RT 897-899.) At the close of her voir dire examination andafter the law had been explainedto her, she unequivocally agreed that she would be “open”to both penalties. (RT 898- 901.) Given these responses and pursuant to the foregoing authorities, Ms. Madali’s statement that it would make her “sick” in her “heart” to impose death fell far short of demonstrating that this understandable feeling would “prevent or substantially impair” the performanceofher dutiesas a juror. To be sure, it is often difficult to review a trial court’s ruling on a challenge for cause because somefactors going into the decision, such as the juror’s demeanor, are not apparent from a cold record. (See, e.g., People v. Stewart, supra, 33 Cal.4" at pp. 450-451 and n. 13 [and authorities cited therein.) Here, however, the Court has the benefit of a record of the subjective factors that went into the trial court’s ruling. Thetrial court took care to note that “what isn’t there [on the record] that should be part of the record” were “five, six-second delays sometimes when she was asked about someofthese questions. She was really struggling.” (RT 911.) Once again, the fact that Ms. Madali may have been “struggling” over her answers to the questions, as evidenced by occasional“five, six-second delays,” wasan insufficient basis for excluding her from the jury. The questions to Ms. Madali were directed toward ascertaining her ability to kill another human being. It should be a “struggle” to answer such questions. The concern should not be with prospective jurors who do struggle over whether they could execute another human being, but rather with prospective jurors who do not. For these reasons, this Court has explicitly recognized that “delays” or “long periods” before answering such questions are “appropriate” and indicate nothing more than that the person is giving them the careful“reflection” and consideration that they demand. (See Peoplev. Heard, supra, 31 Cal.4™ at p. 967 and n.10 [in holding 190 thattrial court erred in excusing juror for cause, Court rejected Attorney General’s argumentthat “long periods of silence” between questions and his answers supportedtrial court’s ruling].) Indeed, accepting thetrial court’s converse reasoning that only those people who would not “struggle” over, or be pained or “sickened”by, the decision to execute another human being are qualified to serve as jurors would produce juries “uncommonly willing to condemn a man to die.” (Witherspoonv.Illinois, supra, 391 U.S. at pp. 520-521.) Pursuant to the foregoing authorities, the court’s stated reasons for excusing Ms. Madali’s fell far short of amounting to substantial evidence that her feelings would prevent or substantially impair the performance ofher duties as a juror. Nordid the prosecutor otherwise bear his burden of demonstrating that the Witt standard was satisfied as to Ms. Madali. (Wainwright v. Witt, supra, 469 U.S.at p. 423; People v. Stewart, supra, 33 Cal.4™ at p. 445.) To the contrary, her responses werestriking in their consistency with the law guiding jurors’ penalty decisions. While the prosecutor argued that Ms. Madali would have “reservations” about voting for death, and the court itself twice observed that she had a “problem”with the death penalty (RT 898-899, 910), these were clearly insufficient reasons to exclude her. (Wainwright v. Witt, supra, 469 U.S. 412, 423; Adamsv. Texas, supra, 448 U.S. at p. 40; Witherspoonv.Illinois, supra, 391 US. at pp. 518, 520-523.) When the court asked her directly if she “could realistically considertwo options,” she respondedthat “it would bereally, really difficult for me to make that decision. I mean it would take a whole lot before that decision could be made by me.” (RT 897.) Upon further inquiry, she explained that a “whole lot” meantthat “it is basically the whole circumstance[sic]... . I mean everything that’s taken and accounted for. The evidence, the person, what — the circumstance, what happened,all ofthat.” (RT 897-898.) Of course, these responses mirrored the law requiring jurors to considerall ofthe relevant 191 “circumstance[s]”relating to the offense and the offender. (Pen. Code § 190.3; see also, e.g., Skipper v. South Carolina (1986) 476 U.S.1, 4-5; Gregg v. Georgia (1976) 428 US. 153, 189; People v. Zapien (1993) 4 Cal.4" 929, 990.) And, a juror cannot vote for death without finding that the aggravating circumstances “substantially outweigh” the mitigating circumstances — in other words, without finding that a “whole lot” justifies the most extreme punishment. (See,e.g., People v. Prieto, supra, 30 Cal.4" at p. 263.) Hence, this Court has explicitly held that “a prospective juror may not be excluded for cause simply becausehis or her conscientious viewsrelating to the death penalty would lead the juror to impose a higher threshold before concluding that the death penalty is appropriate or because such views would makeit very difficult for the juror ever to impose the death penalty.” (See, e.g., People v. Stewart, supra, 33 Cal.4° p. 447; accord People v. Heard, supra, 31 Cal.4" at pp. 959-965 [juror improperly excused for cause where heinitially stated that he believed life without parole was worse punishment and that psychological factors would weigh heavily enough that he would probably vote against death penalty, but indicated that he would follow the law and would not automatically vote against the death penalty]; People v. Kaurish (1990) 52 Cal.3d 648, 699 [Ajuror whose personal opposition toward the death penalty may predispose him to assign greater than average weight to the mitigating factors presented at the penalty phase may not be excluded, unless that predilection would actually preclude him from engaging in the weighing process and returning a capital verdict’’].) The prosecutor also argued that Ms. Madali’s disqualification under Witt was demonstrated by her statement that she would only “possibly” vote to execute someoneinvolved in the holocaust or the Kansas City bombing for death. (RT 911.) Asa preliminary matter, the prosecutor misstated the record. The court asked Ms. Madaliifthe “whole lot” under which she could vote for death would include involvementin the holocaust or the Kansas City bombing; in the midst of the court’s question, she uttered the word “possibly,” but when the question was 192 completed, she responded, “yes.” (RT 898-899.) In any event, even if she would only “possibly” — meaning not automatically — vote for death in such cases, her response was entirely appropriate. (See, e.g., Gall v. Parker (6 Cir. 2000) 231 F.3d 265, 331 [juror improperly excused for cause where,inter alia, he indicated that he would “possibly” impose death under various factual scenarios].) Furthermore, the hypothetical examples focused on only a single factor — the underlying crimeor crimes — and not on any mitigating factors relating to the defendant himself or to the circumstancesthat led to those crimes. Once again, “no single factor . . . determines which penalty — death orlife without the possibility ofparole — is appropriate.” (People v. Prieto, supra, 30 Cal.4" at p. 263 [and authorities cited therein].) Indeed, both the court and the prosecutor otherwise recognized that hypothetical examples based solely on the commission ofthe underlying crimes were inappropriate for this very reason. During the voir dire examination of Juror No. 5 who expressed clear “pro-death” sentiments, defense counsel asked him ifhe could vote forlife ifthe defendants were found guilty of three murders. (RT 415.) The court sustained the prosecutor’s objection to the question on the groundthat it failed to take mitigation into account. (RT 415; see also RT 437.) More importantly, when presented with a hypothetical reflecting the bare facts ofthis case — posited as “somebody’s charged with shooting a gun and shooting several people” —Ms. Madali never suggested that she would not vote for death. (RT 898.) To the contrary, she simply responded that she would not necessarily vote for death based on thosefacts alone because it “all depends on the state of mind, too.” (RT 898.) Again, upon further questioning in which the law was explainedto her, she unequivocally stated that she would consider both options. (RT 901.) At bottom, Ms. Madali’s statements that her “decision would likely depend on the facts [s]he was face[d] with ... suggested that [her] selection would comport with the trial court’s ‘quest’ to find jurors who ‘conscientiously apply the law andfind the facts.’ Witt, supra, 469 U.S. at 423.” (Gall v. Parker, 193 supra, 231 F.3d at p. 331; accord, e.g., People v. Hillhouse (2002) 27 Cal.4™ 469, 488 [“a juror . . . who candidly states his preconceptions and expresses concerns about them, but also indicates a determination to be impartial, may be preferable to one whocategorically denies any prejudgment but may be disingenuous in doing so”’].) Similarly, the prosecutor’s argument that Ms. Madali’s was actually biased because her Christianity would automatically prevent or substantially impair her ability to perform her duties as a juror was without any basis in the facts or the law. (RT 910.) The only discussion ofMadali’s Christianity was in her questionnaire; the prosecutor did not even bother to question her about it. In her questionnaire, she did indicate that she was a Christian andactive in her church, but never suggested that her church even had a stance on the death penalty, much less that her religious beliefs would prevent her from voting for death. To the contrary, she clearly stated that herreligious beliefs would not interfere with her ability or willingness to serve as a juror in this case. (CT 5168.) She also indicated that she did not belong to any organization, which presumably would include her church, which advocated abolition ofthe death penalty. (CT 5184.) While she did indicate that she was “unsure”if she held a “religious or philosophical principle that would affect” her ability to vote for the death penalty (CT 5182), she further indicated that “I believe the law is the law, you must abide by the law ofthe land and if that means the person/s fall under that category, so be it. I myself really don’t know how feel about the death penalty. I believe that Godallows certain things and it all depends. | am really unsure.” (CT 5181, emphasis supplied.) Hence, contrary to the prosecutor’s suggestion, her answers as a whole clearly indicated that her religion, or “God,” would “allow” imposition ofthe death penalty “depend[ing] on the circumstances.” (CT 5181.) Ifthe prosecutor wished to explore how herreligion would affect her duties, he should have questioned her regardingit. Instead, he relied on nothing more than her questionnaire answerthat she was actively involved in her Christian church. 194 Neither the prosecutor nor the court could presumethat, contrary to her other answers on the questionnaire, Ms. Madali’s Christianity would prevent or substantially impair her ability to perform her duties as a juror. (See,e.g., Witherspoonv.Illinois, supra, 391 U.S. at p. 515, n.9 [“it cannot be assumed that a juror who describes himself as having . . . religious scruples against the infliction ofthe death penalty . . . thereby affirms that he could nevervote in favorofit or that he would not consider doing so in the case before him.”]; accord, e.g., United States v. Padilla-Mendoza (9® Cir. 1998) 157 F.3d 730, 733 [“to presume that personalbeliefs automatically render one unable to act as a juror is improper”].) Indeed, the prosecutor’s argumentto the contrary wasparticularly disingenuous given that 14 ofthe selected 18 jurors were Christian, many ofwhom,like Ms. Madali, wereactive in their churches. (CT 2856, 3623, 3595, 4172, 4453, 4564, 6873, 6956, 7340, 8162, 8604, 8881, 9208, 11329.) Finally, it is true thata trial court’s ruling on a challenge for causeis ordinarily a discretionary exercise to be treated with deference. (See,e.g., People v. Weaver, supra, 26 Cal.4" at p. 910.) However, as discussed in part B above, in order to trigger the deferential standard, discretion must be exercised fairly, not in an arbitrary, capricious, or partial manner. (See, e.g., People v. Warner, supra, 20 Cal.3d at p. 683.) Here, as explained in moredetail in part E, below, the court’s application ofthe Witt standard was far from evenhanded and impartial. (See, e.g., People v. Champion, supra, 9 Cal.4™ at p. 908[trial court’s application of Witt must be evenhanded].) Hence, its finding that Ms. Madali’s answerssatisfied the Witt standard (as well as its finding that Juror No. 5 did not satisfy the standard, as discussed below)is not entitled to deference. (See, e.g., People v. Welch, supra, 5 Cal.4® at p. 234.) Forall ofthe foregoing reasons, the court’s exclusion ofMs. Madali violated Matthew’srights to a fair and impartial jury in violation of the Sixth and Fourteenth Amendments. This error alone compels reversal ofthe penalty 195 judgment. (See, e.g., Gray v. Mississippi, supra, 481 U.S. at pp. 666-668; People v. Heard, supra, 31 Cal.4™ at pp. 965-966.) D Prospective Juror Froyland. 1. Prospective juror Froyland’s responsesto the jury questionnaire and onvoir dire and his dismissal for cause. Prospective juror Froyland identified himself on his questionnaire as “moderately in favor” ofthe death penalty. (CT 4521.) Asto his “general feelings” about the death penalty, he responded: “Hard to look at mostofthe time —I mean havingto exercise it. I wonderif it is a deterrent at all. Overall, I believe there is a need for it.” (CT 4521.) Asked his “general feelings” aboutlife without parole, he replied that “it’s better than death and leaves the door open for personal rehabilitation. It seems, howeverthere are few systems in place to accomplish this.” (CT 4525.) He held no “religious or philosophical principle” that would affect his ability to vote for the death penalty. (CT 4522.) Asked if he would want to know aboutthe defendant’s background and why,he replied that he would in order “to be fair.” (CT 4522.) Onvoir dire, the court asked him ifhe could practically consider both penalties; he replied that he could, but “not withoutdifficulty.” (RT 745.) Asked to clarify, he explained that “the death penalty is a very final penalty, so not to be considered lightly.” (RT 745.) Therefore, he would findit “very difficult” to vote for death, but would not “preclude[]”it, and in fact reiterated that he is moderately in favor of it. (RT 745-746.) The court explained that he would have to consider several factorsrelating to the crime and to the defendants and asked him if, “in light of that, do you think that you really would be fairjuror to decidethat, about the death penalty?” (RT 747.) Mr. Froyland responded that he would be “more in favor oflife.” (RT 747.) The court asked again if he could “practically” “see [himself] as voting for the death penalty.” (RT 747.) He replied, “I would have to 196 be persuadedat that point by the evidence.” (RT 747.) The court pressed him,“to some extent, have you prejudged?” (RT 748.) Mr. Froyland emphasized that, “not having heard one fact, whatsoever,” he would be “morelikely to swayorfall on the side of lenient punishment.” (RT 748.) Defense counsel having refused to stipulate to challenging Mr. Froyland for cause, the court granted the prosecutor’s challenge and dismissed Mr. Froyland without explanation. (RT 748-749.) 8 2. The exclusion of prospective juror Froyland for cause was unsupported by substantial evidence that his feelings about the death penalty would prevent or substantially impairhis ability to perform his duties as a juror. Once again,the court’s dismissal ofMr. Froyland for cause was unsupported by substantial evidence that his feelings about the death penalty would prevent or substantially impair his ability to perform his duties as a juror. Mr. Froyland clearly and unequivocally stated that he was moderately in favor of the death penalty and in fact could and would imposeit ifpersuaded by the evidence. (RT 745-749.) Contrary to suggesting his inability to perform his duties as a juror, his statementthat “not having heard one fact, whatsoever,” he would be “more likely to swayor fall on the side of lenient punishment”in fact paraphrased the law that he would be duty boundto follow as a juror. (RT 748; see Pen. Code § 190.3 [death may not be imposedif aggravating circumstances outweigh mitigating]; People v. Prieto, supra, 30 Cal.4" at p. 263.) Like Ms. Madali, Mr. Froyland’s statementthat his “decision would likely depend on the facts he was face[d] with... suggested that his selection would comport with the trial court’s ‘quest’ to find jurors who ‘conscientiously apply the law and find the facts.’ Witt, supra, 469 U.S. at 423.” (Gail v. Parker, supra, 231 F.3d atp. 331; 28 Counselstipulated to several challenges for cause. (RT 108-119; CT 586.) Counselrefused to stipulate to excusing the jurors discussed in this argument. 197 Furthermore, neither the fact that he would findit “very difficult” to vote for death nor that he would have to be persuaded by the evidenceto do so, was sufficient ground to excuse him. Onceagain,as this Court has recognized, “a prospective juror may not be excluded for cause simply because his or her conscientious views relating to the death penalty would lead the juror to impose a higher threshold before concluding that the death penalty is appropriate or because such views would makeit very difficult for the juror ever to impose the death penalty.” (See, e.g., People v. Stewart, supra, 33 Cal.4® p. 447; accord People v. Heard, supra, 31 Cal.4" at pp. 959-965; People v. Kaurish, supra, 52 Cal.3d at p. 699; Wainwright v. Witt, supra, 469 U.S. 412, 423; Adamsv. Texas, supra, 448 U.S.at p. 40; Witherspoonv.Illinois, supra, 391 U.S. at pp. 518, 520-523.) In sum,like Ms. Madali, far from meeting the Witt standard for exclusion, Mr. Froyland’s answers as a whole demonstrated that he would be an ideal juror. The court’s exclusion of Mr. Froyland violated Matthew’srights to a fair and impartial jury in violation of the Sixth and Fourteenth Amendments. This error alone compels reversal ofthe penalty judgment. (Gray v. Mississippi, supra, 481 U.S. at pp. 666-668; People v. Heard, supra, 31 Cal.4” at pp. 965-966.) 3. Counsel’s “non-opposition” to the court’s dismissal of Mr. Froyland for cause did not waive Matthew’s right to challenge the error on appeal. While counselrefused to stipulate to challenging Mr. Froyland for cause (see RT 108-119), it is true that he did not object or oppose Mr. Froyland’s dismissal. Respondent may argue that counsel thereby waived Matthew’srightto challenge the error on appeal. Any such argument must be rejected. - Voir dire in this case was conducted in 1998. At the time, the law did not require an objection or opposition to the erroneous dismissal of a juror for cause under Witherspoon-Witt in order to preserve the error for appeal. In Peoplev. 198 Velasquez (1980) 26 Cal.3d 425, 443, the Court rejected the Attorney General’s argument that the defendant waived a Witherspoonerror by failing to object to the juror’s dismissal. As the Court stated, “the decisions of the United States Supreme Court and ofthe California courts have unanimously ruled that Witherspoon error is not waived by merefailure to object.” (Ibid., citing, inter alia, Maxwellv. Bishop (1970) 398 U.S. 262, People v. Risenhoover (1968) 70 Cal.2d 39, 56, and In re Anderson (1968) 69 Cal.2d 613, 618-619.) Thereafter, in People v. Lanphear (1980) 26 Cal.3d 814, 844, the Court relied on Velasquez in again rejecting the Attorney General’s argumentthat the defendant waived Witherspoonerror for failing to object. In People v. Cox (1991) 53 Cal.3d 618, 648, n.4, the Court again cited Velasquez in noting with respect to a claim thatthe trial court erroneously dismissed a juror for cause that “the failure to object does not waive the issue for appeal...” However, in 1997, the Court curiously observed that — despite Velasquez’s clear reliance on California authority — “[w]e have not decided whether ‘nonopposition’ to a Witherspoon-Witt challenge for cause waives any claim of error on appeal. ... We recognized controlling federal precedent holds that Witherspoonerror is not waived by ‘mere’ failure to object in People v. Velasquez... .” (People v. Holt (1997) 15 Cal.4™ 619, 651 and n. 4.) Since Holt, the Court has not issued any decision requiring an objection in order to preserve an erroneousdismissal of a juror for cause under Witherspoon-Witt. Hence, because the law did not impose such a requirementat the time ofvoir dire in this case— and indeed becausethe only cases directly on point held that no such objection is required — counsel’s failure to object or oppose the court’s dismissal ofMr. Froyland for cause did not waive Matthew’s right to challenge the error on appeal. (Cf. People v. Weaver, supra, 26 Cal.4™ at pp. 910-911 [where law in state of flux at time ofvoir dire as to whether expression of dissatisfaction necessary to preserve erroneousdenial of for-cause challenge, absence of expression did not waiveerror for appeal]; accord People v. Boyette, supra, 29 Cal.4" at p. 416.) 199 E. Juror No. 5. 1. Juror No. 5’s responses to the jury questionnaire and on voir dire and the court’s refusal to dismiss him for cause. In his questionnaire, Juror No. 5 identified himself as “moderately in favor” ofthe death penalty. (CT 3608 [Vol. 13].) As to his “general feelings” about the death penalty, he expressed his belief in an “eye for an eye” in some cases. (CT 3608 [Vol. 13].) He stated that he would xot want to know about the defendant’s backgroundin determining the appropriate penalty. (CT 3609.) If “required”to consider factors relating to the defendant, including background, “or any other sympathetic or other aspects ofthe defendant[‘]s character or record as a basis for a sentence Jess than death,” he replied only that “considerations are possible.” (CT 3612.) On voir dire, Michael’s counsel asked Juror No. 5 to explain his statement that an “eye for an eye” was warranted in somecases. (RT 412-413.) Juror No. 5 respondedthat it was warranted in cases in which it was proved beyond a reasonable doubt that the defendant killed, but was not warrantedifthe killing were accidental or an act ofwar. (RT 413.) Michael’s counsel asked him ifit would be warranted ifthe defendant were found guilty ofthree murders. (RT 413- 414.) As mentioned in part C, above, the court sustained the prosecutor’s objection to this question on the groundthatit did not take mitigation into account. (RT 415.) Michael’s counsel reframed the question and asked Juror No.5 ifhe would automatically vote for death ifthe defendants were found guilty beyond a reasonable doubt ofthe charges, “without other considerations.” (RT 415.) Juror No. 5 replied that he would. (RT 415.) The court immediately responded by posing a hypothetical example clearly intended to rehabilitate Juror No. 5. (RT 415.) The court presented a classic hypothetical involving a getaway driver involved in a bank robbery resulting in a homicide, but who was notactively involved in the robbery, not present when the 200 victims were killed, and had nointent to kill anyone. (RT 416-417.) The court explained that, under the law, the getaway driver would be liable for murder. (RT 416-417.) However, in determining the penalty, the jury would and should consider the getaway driver’s relative culpability for the murders. Given that the getaway driver was guilty ofmurder underthe law, the court asked Juror No. 5 if “in your mind, wouldthat still mean that you felt there’s only one oftwo possible punishments that would be appropriate, and that would be the death penalty over life without the possibility of parole.” (RT 416-417.) Again, Juror No. 5 replied, “I believe so.” (RT 417.) Nevertheless, the court pressed him further, asking ifhe could keep an “open mind to hear the evidence concerning the appropriate punishment that might comein the penalty phase?” Juror No. 5 replied only that he would “try to keep an open mind.” (RT 417.) Matthew’s counsel probed further, asking Juror No.5 directly ifhe would “automatically” impose the death penalty ifthe defendants were found guilty as charged in this case. (RT 417-418.) This time he replied, “Well, I wouldn’t say automatically.” (RT 418.) Counsel asked him ifhe would be “inclined to give the death penalty” and Juror No. 5 agreed that he would. (RT 418.) Counsel asked him what might change his mind, but he was unableto articulate an example. (RT 418.) Counsel asked him ifwould place the burden on the defense to changehis mind. (RT 419.) Juror No. 5 replied that he would. (RT 419.) The prosecutor soughtto rehabilitate Juror No. 5. (RT 419.) He emphasizedthat“it’s sort of unfair” to ask him how he wouldvoteifthe defendants were found guilty as charged since he did not “know the circumstances ofhow those murders occurred,” “what, if any reasons, they had, if they did, in fact do them,” or anything about their “background.” (RT 419-420.) Again, he asked Juror No. 5 if he could “listen” to such evidence before he decided the appropriate penalty. (RT 420.) The juror carefully replied, “I could listen.” (RT 420.) If he found the defendants guilty as charged, he would “be leaning towards death,” but mitigating evidence “could” change his mind. (RT 420.) 201 The defendants challenged Juror No. 5 for cause under Witt (RT 434.) Matthew’s counsel acknowledged that he had notstated that he would “automatically” vote for death. However, he indicated that he would be inclined toward death ifthe defendants were convicted, he would apply a “presumption of death,” he would place the burden on the defendants ofrebutting that presumption, yet he was unable to articulate any facts with which the defendants could satisfy their burden. (RT 434, 437.) Given these statements, counsel concluded, “the juror should clearly, under Witt, be excluded.” (RT 434.) Michael’s counsel added that he would not be able to give fair consideration to the mitigating evidence. (RT 435-436.) The court denied the challenge for cause and Juror No. 5 was seated on the jury that fixed the punishmentat death. (RT 439.) 2. The court’s refusal to dismiss Juror No. 5 based uponits implicit finding that he could follow his oath and perform his duties as a juror was unsupportedby the evidence. Asdiscussed in part B, above, under the Witt standard, a juror whose “views about capital punishment would prevent or impair the juror's ability to return a verdict of life without parole in the case before the juror’” must be excluded. (People v. Heard, supra, 31 Cal.4™ at p. 959.) Empaneling even a single juror whois biased in favor ofthe death penalty under the Witt standard violates the Sixth and Fourteenth Amendments and precludes executing the death sentence. (Morgan v.Illinois, supra, 504 U.S.at p. 729; People v. Boyette, supra, 29 Cal.4" at p. 416; People v. Weaver, supra, 26 Cal.4™ at p. 910.) In People v. Boyette, supra, 29 Cal.4" 31 8, this Court held that a juror who gave answersstrikingly similar to Juror No. 5’s answers should have been excluded for cause from a capital jury under the Witt standard. In that case, the prospective juror indicated both that he wasstrongly in favor ofthe death penalty and that he was “somewhatpro-death.” (Id. at pp. 417-418.) Heinitially stated that the death penalty should automatically be imposed on defendants convicted of 202 multiple murder. (Ibid.) He later agreed that he could votefor life if it was appropriate, but that he would “probably have to be convinced”to vote for life and “would be more inclined to go with the death penalty.” (Ibid.) He “equivocated when asked whether he would exclude consideration of a life term, saying, ‘Never having beenin that situation, I have no idea.’” (Ibid.) Finally, he stated that he could not “assume”that “life without parole means what it says.” (Ibid.) Thetrial court denied the defendant’s challenge for cause under Witt. This Court held that the juror was biased and therefore the trial court erred in denying the defense challenge for cause: “This was not a case in which the juror gave equivocal answers: He was strongly in favor of the death penalty and was not shy about expressing that view. He indicated he would apply a higher standard ("I would probably have to be convinced") to a life sentence than to one of death, and that an offender (such as defendant) who killed more than one victim should automatically receive the death penalty. . .. Because this juror’s views would have ‘prevent(ed) or substantially impair(ed) the performance ofhis duties as a juror in accordance with his instructions andhis oath,’ (Wainwright v. Witt, supra, 469 U.S.at p. 424),thetrial court erred in denying defendant’s challenge for cause. (People v. Boyette, supra, 29 Cal.4™ at p. 419.) Here, while Juror No. 5 identified himself as “moderately in favor”ofthe death penalty, his answers as a whole clearly indicated that he was strongly in favor ofthe penalty. (RT 3608; see also e.g., People v. Ghent, supra, 43 Cal.3d at p. 768 [juror’s answers must be considered as a whole].) As in Boyette, Juror No. 5 initially stated that he would automatically vote to execute a person convicted of multiple murder. (RT 415.) Just as in Boyette, although Juror No. 5 later attempted to backtrack from this “automatic” position by indicating that he could conceivably be convinced to vote forlife (RT 418), he also clearly believed that death would be the presumptively appropriate penalty and the defense would bear the burden ofrebutting that presumption, or convincing him to spare Matthew’s life. (RT 418-419.). In other words, just as in Boyette, Juror No. 5 unequivocally 203 indicated that he “would apply a higher standard. . . to a life sentence than to one ofdeath.” (People v. Boyette, supra, 29 Cal.4™ at p. 419.) Furthermore, when pressed, Juror No. 5 chose his words very carefully, promising no morethan to “listen” to mitigating evidence (RT 420), to “possibl[y]” consider mitigating evidence if required to do so (CT 3612), and to “try to keep an open mind”about the appropriate penalty (RT 417). Ofcourse, the constitution guarantees a defendant“theright to a jury that will hear his case impartially, not one whotentatively promisesto try.” (Wolfe v. Brigano, supra, 232 F.3dat p. 503 [jurors’ “tentative statements that they would try to decide the case based on the evidence”insufficient to support finding of impartiality]; see also Nance v. State (Ga. 2000) 526 S.E.2d 560, 567 [court erred in denying challenge for cause to juror whostated that she would automatically vote for death ifjury found one aggravating circumstance, even though sheultimately agreed that she would “listen”to the law and facts and choose the appropriate sentence].) | Indeed, as counsel argued, despite his tentative promise to “try” to do so (RT 434, 437), Juror No. 5’s other answersclearly indicated that he would not be able to follow his oath and fairly consider mitigating evidenceorlife without parole ifthe defendants were convicted ofmultiple murder. (See, e.g., Morgan v. Illinois, supra, 504 U.S.at p. 507 [juror who will not consider mitigating evidence must be excused].) Based on the court’s tendentious hypothetical example, he stated that if a defendant were convicted offirst-degree murder underthe felony murderrule, but had nointentor plan to kill, was not physically present during the killing, and even had no knowledgeofthe killing, all of these circumstances would not “change [his] mind” and convince him to vote for life. (RT 417-417.) Despite substantial probing into what, if any, mitigating evidence could possibly “change [his] mind” and convince him to sparethelife of a defendant who had killed, he was only able to articulate two such circumstances: accidental killings and casualties ofwar — circumstances that would notarise in any first-degree murder case (barring perhaps a felony-murder case), muchless in this case. (RT 204 413-419.) Given his answers as a whole, it was clear that Juror No. 5 was biased in favorofexecution in every first-degree murder case, regardless of the evidence, and that this bias would prevent or substantially impair his ability to perform his duties as a juror. As in Boyette, the court erred in denying the defense challenge for cause as to Juror No. 5. (People v. Boyette, supra, 29 Cal.4™ at pp. 417-419; see also, e.g., Wolfe v. Brigano, supra, 232 F.3d at p. 503 [jurors’ “tentative statements that they would try to decide the case based on the evidence” insufficient to support finding of impartiality].) Since the seating of even a single biased juror violates the defendant’s right to a fair and impartial jury, reversal is required. (Morgan v.Illinois, supra, 504 U.S.at p. 729; accord, ¢.g.., People v. Weaver,supra, 26 Cal.4" at p. 910.) 3. Matthew’s right to afair and impartial jury was not waived by his counsel’s failure to exercise a peremptory challenge to exclude Juror No. 5. It is true Matthew’s counsel had peremptory challenges remaining but did not exercise one to remove Juror No. 5 when he wasseated in the jury as originally constituted. However, that jury did not deliberate in the guilt or penalty phases. Rather, only one court session after the jury was sworn, one ofthe originally seated regular jurors — Juror No. 11 — was excused and replaced with one of the alternates. (RT 1861-1863.) It was this reconstituted jury that deliberated in both phases. Counsel did exhaust his peremptory challenges as to the alternate jurors. (RT 1842-1850.) Respondent may argue that counsel nevertheless waived Matthew’s right to challenge the violation of his right to an impartial jury by failing to use a peremptory challengeto strike Juror No. 5 from the originally constituted jury. For the reasons explained below, such an argument must be rejected. This Court has held that in order to preserve a trial court’s erroneous denial of a challenge for cause for appeal, the defendantordinarily must either exercise a 205 peremptory challenge to removethe challenged juror or show that he was unable to do so because his peremptory challenges were exhausted. (See, e.g., People v. Hillhouse, supra, 27 Cal.4™ at p. 486 [and authorities cited therein].) Theprincipal rationale for applying the exhaustion rule is that the failure to exhaust an available peremptory challenge implies counsel’s “relative” satisfaction with the constituted jury as a whole, which may be based on some “nuanced and tactical”reason. (See, e.g., People v. Ayala (2000) 23 Cal.4" 225, 261; People v. Bemore (2000) 22 Cal.4% 809, 836; People v. Johnson, supra, 3 Cal.4™ at pp. 1211-1212; People v. Morris (1991) 53 Cal.3d 185.) So long as the composition ofthat jury remains the same, the implication of satisfaction arguably applies. However, the implication that counsel is satisfied with the jury as constituted would not continue to apply where, as here, the defendant does exhaust his peremptory challenges to the potential alternate jurors and an alternate juror is seated on the jury that fixes the punishment at death. Once oneoftheoriginally seated jurors is replaced with an alternate, the original composition ofthe jury with which counsel was“relatively satisfied” has changed. In other words, whateverpossible tactical decision may have underlay accepting the panel as originally constituted is nullified when the composition ofthat panel changes. Indeed, this Court has recognized as muchin other contexts. In In re Mendes (1979) 23 Cal.3d 847, the Court held that when a regular juror is discharged before the selection of alternate jurors commences,thetrial court has the discretion to reopen jury selection completely in order to allow the parties to exercise remaining peremptory challenges against any ofthe remaining regular jurors already sworn. (Id. at p. 855.) This rule is based on the recognition that the panelasoriginally constituted has changed andtherefore it cannot be assumedthat either sideisstill satisfied with the jury as reconstituted. (Ibid.)”? And, because Matthew’s counsel 29 Indeed,the record ofjury selection here otherwiseillustrates how changing even a single juror may change counsel’s strategy as to a group ofjurors. When selecting five alternate jurors, all counsel originally passed and accepted the panel 206 did exhaust his peremptory challenges to the panel of alternates, there is no implication that he was “relatively satisfied” with the panel of alternates. Under these circumstances, there can be no implication ofsatisfaction with the reconstitutedjury containing oneofthose alternates and therefore the principal rationale for implied waiver no longerexists. It is true that the defendants did not expressly indicate their dissatisfaction with the jury after the alternates were selected or with the reconstituted jury when the alternate replaced the regular juror, which is now required under California law to preserve the erroneous denial ofa for-cause challenge on appeal. However, voir dire in this case was conducted in 1998. As the Court recognized in 2001, the law on whether an expression of dissatisfaction is required to preserve the erroneous denial of a challenge for cause wasin a state of flux before that date. (People v. Weaver, supra, 26 Cal.4™ at pp. 910-911.) Hence, the Court held that the failure to express dissatisfaction in cases tried before 2001 decision will not bar review ofan erroneous denial of a challenge for cause. (Ibid.; accord People v. Boyette, supra, 29 Cal.4" at p. 416.) In any event, even if counsel did not effectively satisfy the exhaustion requirement, his inaction did not waive Matthew’sright to challenge the violation of his right to a fair and impartial jury. Wheretrial counsel has failed to meet the so-called “exhaustion rule,” this Court typically holds that the denial of the challenge for cause has been waived for appeal, but goes on to address the merits ofthe claim under an ineffective assistance of counsel analysis. (Strickland v. Washington (1984) 466 U.S. 668, 693-694 [Sixth Amendment guarantee to effective assistance of counsel]; People v. Pope (1979) 23 Cal.3d 412, 425-426 without exercising any peremptory challenges. (RT 1839-1841.) Immediately afterward, alternate Juror No. 16 indicated that he might not be able to serve due to work issues. (RT 1842.) At that point, the court reopened voir dire, allowed the parties to rescind their passes and select six alternates. (RT 1842.) This time, counsel exercised all oftheir peremptory challengesas to the alternates. (RT 1843-1850.) 207 [same underArticle I, section 15].) That is, the Court may examine whether counsel wasconstitutionally ineffective in failing to exercise an available peremptory challenge to strike a juror whom hehas unsuccessfully challenged for cause. If the juror was not biased, or if a biased juror was not seated, examining the effectiveness of counsel may not be inappropriate, but it is moot. Ifthe juror was not biased, then obviously counsel was not incompetentfor failing to strike a biased juror. (See, e.g., People v. Coffman (2004) 34 Cal.4™ 1, 48 [holding juror not biased and accordingly rejecting claim counsel ineffective for failing to challenge biased juror]; People v. Millwee (1998) 18 Cal.4" 297, 316 [same]; People v. Lucas (1995) 12 Cal.4™ 415, 480; People v. Garceau (1993) 6 Cal.4" 140, 173-174 and n.11; United States v. Quintero-Barraza (9 Cir. 1995) 78 F.3d 1344, 1349.) Ifthe prospective juror was biased but not seated, there was no violation of the right to trial by an impartial jury and the defendant suffered no harm. (See, e.g., Ross v. Oklahoma (1988) 487 U.S. 81, 87-89 [concluding that Oklahoma’s similar exhaustion rule does not violate the federal constitution where biased juror has not been seated]; People v. Barnett (1998) 17 Cal.4™ 1104, 1113 [applying exhaustion requirement to claim court erred in denying challenges for cause where challenged jurors were not seated, right to impartial jury was not violated, and defendant suffered no prejudice].) However, where a biasedjuror has actually been seated, counsel’s failure to satisfy the exhaustion requirement must be disregarded. Whena biased juror has been seated, the defendant has been deprived ofhis fundamentalrightto trial by a fair and impartial jury. (See, e.g., Morgan v. Illinois, supra, 504 U.S.at p. 729; People v. Weaver, supra, 26 Cal.4™ at p. 910; United States v. Gonzalez (ha Cir. 2000) 214 F.3d 1109, 1111; United States v. Eubanks (9" Cir. 1979) 591 F.2d 513, 517.) Without qualification, the Supreme Court has unambiguously declared that where such a violation has occurred and “the death sentence is imposed, the State is disentitled to execute the sentence.” (Morgan v. Illinois, supra, 504 U.S. at p. 729; see also United States v. Martinez- 208 Salazar (2000) 528 U.S. 304, 316 [if trial court’s denial of challenge for cause “result(s) in the seating of any juror who should have been dismissed for cause. . . that circumstance would require reversal”].) Counsel’s research has failed to uncovera single case in which any court has held that a seated juror was biased, but also that counsel either waived his client’s right to challenge the constitutional violation by failing to exhaust his peremptory challenges or wasnotineffective in failing to removethatjuror with a peremptory challenge. (See, e.g., People v. Farnham (2002) 28 Cal.4® 107, 132-133 [claim not preserved because exhaustion requirement not met, but also concluding jurors not biased]; People v. Hillhouse, supra, 27 Cal.4" at pp. 486-488 [same].) To apply the exhaustion requirement to avoid such a constitutional violation on appeal, or to analyze the effectiveness of counselin failing to exercise an available peremptory challenge to prevent a biased juror from being seated, presupposes that counsel may waivehis client’s right to have an impartial jury decide whether his client lives or dies. (See Hughes v. United States, supra, 258 F.3d at p. 463; United States v. Quintero-Barraza. supra, 78 F.3d dis. opn. of Tang,J. at pp. 1353-1354 [discussing majority’s dual holding that juror was not biased and counsel was not ineffective for failing to strike him: majority’s “reasoning is confusing becauseeither (the juror) is biased or he is not biased. If he is not biased, then counsel simply madenoerror in impaneling an unbiased juror.If (he) is biased, then the issue is whether counsel can functionally waive the defendant's right to an impartial jury.”].) But this simply is not so. (Ibid.) Thestarting point for this analysis is the fundamentalrule that “’courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and . . . ‘do not presume acquiescencein the loss of fundamentalrights.’” (Johnson v. Zerbst (1938) 304 U.S. 458, 464.) Of course, as this Court has observed, “’[b]y choosing professional representation, the accused surrendersall but a handful of ‘fundamental’ personal rights to counsel’s complete control of defense strategies and tactics.’” (In re Horton (1991) 54 209 Cal.3d 82, 95 [and authorities cited therein].) However,as to certain fundamental personalrights, waiver may not be implied through counsel’s action or inaction; they require the defendant’s personal and express, knowingandintelligent, waiver. Determining the manner in which certain rights may be waived (if they may be waivedat all) often turns on a number offactors. First and foremost, whether the defendant’s express personal waiveris required turns on whethertheright at issue is a “fundamental personal” one. re Horton, supra, 53 Cal.3d at p. 95; see also, e.g., People v. Collins (2001) 26 Cal.4" 297, 310.) If so, the nature ofthe right alone may require the defendant’s express, personal, knowing, andintelligent waiver. In addition, courts may examine the significance ofthe fundamental personal right. Ifits is so critical that its violation amounts to a structural defect underminingtheintegrity ofthe trial requiring reversalper se (see, ¢.g., Vasquez v. Hillery (1986) 474 U.S. 254, 263-264),it is ordinarily the kind ofright that the defendant must personally and expressly waive. (See, e.g., People v. Collins, supra, 26 Cal.4® at p. 310; People v. Webster (1991) 54 Cal.3d 411, 438 [concluding that right to peremptory challenges not “fundamental”right requiring personal waiver in part because, unlike violation of right to jury trial which requires automatic reversal, improper denial ofperemptory challenge requires showingofprejudice].) Finally, ifthe waiver of a particular right can neverbe ascribed to “defense strategies and tactics” (In re Horton, supra, 54 Cal.3d at p. 94), it would follow thatit is not the kind ofright that counsel may waive on his client’s behalf, but rather is one requiring the defendant’s express personal waiver. Under these principles, a defendant’s state and federal constitutionalright to trial by jury is a fundamental personal right, the violation ofwhich amounts to structuralerror. (See, e.g., Sullivan v. Louisiana, supra, 508 US. at pp. 281-282; Duncan v. Louisiana (1968) 391 U.S. 145, 156-158; People v. Collins, supra, 26 cal.4" at pp. 310-311; People v. Ernst (1994) 8 Cal.4" 441, 449.) Therefore,it requires the defendant’s express personal waiver under both state and federal law. 210 (See, e.g., Patton v. United States (1930) 281 U.S. 276, 308-312 [express personal waiver required under federal constitution]; Fed. Rules of Crim. Proc. Rule 23 [express, written waiver required under federal rules]; People v. Collins, supra, 26 Cal.4" at pp. 304-305 and n.2 [express waiverin open court required understate and federal law]; see also Calif. Const., Art. I, § 16.) According to the very text of the Sixth Amendment,trial by jury means trial by an “impartial jury.” (See also People v. Wheeler, supra, 22 Cal.3d at pp. 265-266 {although right to impartial jury is not explicitly stated in California Constitution, it is implied].) The right to an impartial jury “’”is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution.” [Citations].” (In re Hitchings (1993) 6 Cal.4" 97, 110.) Hence,it is as much a critical, “fundamental personalright” asis the right to trial by jury. (People v. Boulerice (1992) 5 Cal-App.4™ 463, 473 [observingrightto trial by impartial jury is “fundamental personal right”]; accord, e.g., Rogers v. McMullen (11™ Cir. 1982) 673 F.2d 1185, 1189-1190 and n.5, cert. denied, 459 U.S. 1110 (1983).) Indeed, “[t]he right to a fair and impartial jury is one ofthe most sacred and important guarantees ofthe Constitution” (People v. Wheeler, supra, 22 Cal.3d at p. 283.) As the United States Supreme Court has emphasized, “[flew, if any, interests under the Constitution are more fundamental than theright to a fair trial by ‘impartial’ jurors ....” (Gentile v. State Bar ofNev. (1991) 501 U.S. 1030, 1075.) Moreover, it is a deeply personal right, particularly in the capital context. Indeed,it is difficult to conceive of a right more “personal” than a defendant’s right to have a fair and impartial decisionmaker declare whetherhe shail live or die. Furthermore, the fundamental right to an impartial jury is so importantthat the seating of even a single biased juror “taints the entire trial” (Wolfe v. Brigano, supra, 232 F.3d at p. 503), amounts to structural error, and requires reversal perse. (See, e.g., Morgan v.Illinois, supra, 504 U.S.at p. 729; People v. Weaver, supra, 26 Cal.4™ at p. 910; In re Carpenter (1995) 9 Cal.4" 634, 654 [“a biased 211 adjudicatoris one ofthe few ‘structural defects in the constitution, which defy analysis by “harmless error” standards’”]; Hughes v. United States, supra, 258 F.3d at p. 463 [seating ofbiased juror is structural defect]; Johnson v. Armantrout (8" Cir. 1992) 961 F.2d 748, 755 [same; “trying a defendant before a biased jury is akin to providing him with notrialat all]; United States v. Gonzalez, supra, 214 F.3d at p. 1111 [seating of even one biased juror requires reversal per se]; United States v. Eubanks, supra, 591 F.2d 513, 517 [same]; see also Gray v. Mississippi, supra, 481 U.S. at p. 668 [“impartiality ofthe adjudicator goes to the very integrity of the legal system;” hence, violation ofright to impartial jury trial by excluding “pro-life” juror who does not satisfy Witt standard requires reversal per se].) Finally, the waiver ofthe right to an impartial jury cannot be ascribed to “defense strategies and tactics.” (In re Horton, supra, 54 Cal.3d at p. 94.) “The question of whetherto seat a biased juror is not a discretionary or strategic decision.” (Hughes v. United States, supra, at p. 463; cf. Gardner v. Florida, supra, 430 U.S. at p. 361 [Court refuses to find that counsel’s failure to object waived right to challenge federal constitutional violation because,inter alia, “there is no basis for presumingthat the defendant himselfmade a knowing andintelligent waiver, or that counsel could possibly have madea tactical decision”not to object].) Forall ofthe foregoing reasons, “if counsel cannot waive a criminal defendant's basic Sixth Amendmentright to trial by jury ‘without the fully informed and publicly acknowledged consentoftheclient,’ [Citation], then counsel cannot so waive a criminal defendant's basic Sixth Amendmentright to trial by an impartial jury.” (Hughes v. United States, supra, 258 F.3d at p. 463; accord McCullough v. Bennett (N.D.N.Y. 2003) 317 F.Supp.2d 112, 119.) Even assuming for argument’s sake that counsel could technically waive his client’s right to an impartial jury through inaction alone, the outcome would not change. It is beyond dispute that: a) an attorney’s failure to removea biased jurorfalls below an objective standard ofreasonableness and cannotbejustified by any conceivabletrial “tactic;” and b) as a matter oflaw,the seating of a biased 212 juror establishes the second, prejudice prong necessary to establish that counsel was constitutionally ineffective. (Hughes v. United States, supra, 258 F.3d at pp. 463-464; Johnson v. Armontrout, supra, 961 F.2d at pp. 754-755; McCulloughv. Bennett, supra, 317 F.Supp.2d at p. 119; accord People v. Weaver, supra, 26 Cal.4" at p. 911 [“because the presenceofeven a single juror compromisingthe impartiality ofthe jury requires reversal, counsel would be constitutionally ineffective if he had failed to” preserve the claim].) In other words, establishing the bias ofa deliberating juror necessarily establishes that counsel was constitutionally ineffective in failing to removethat juror with an available peremptory challenge. (bid; see also Strickland v. Washington, supra, 466 U.S.at pp. 693-694.) In other words, regardless ofthe analytical approach and whether the blame for the violation is placed on the shouldersofthetrial court, trial counsel, or both, the endresult is that the defendant was deprived ofhis right to an impartial jury. (Cf. People v. Estrada (1998) 63 Cal.App.4™ 1090, 1096 [The direction of a blow is less important than the woundinflicted.”]; Tejada v. Dubois (1 Cir. 1998) 142 F.3d 18, 24-25 [“It is unnecessary for us to attempt to divide the blame between lawyer and judge. . . . Instead, our constitutional focus is on the defendant . . . and he lost regardless” ofthe offender].) The reasons for the deprivation are immaterial and do not changethe fact that, if a biased juror is actually seated on a jury that fixes the punishmentat death, the State is disentitled from executing the death judgment. (See, e.g., Morgan v.Illinois, supra, 504 U.S. at p. 729; People v. Weaver, supra, 26 Cal.4™ at p. 910.) Consistent with the foregoing principles, other jurisdictions recognize that the seating of a biased juror violates the Sixth and Fourteenth Amendments and therefore requires reversal without regard to counsel’s action or inaction. Some courts simply refuse to find waiver under these circumstances. (See, e.g., United States v. Martinez-Salazar, supra, 528 U.S.at p. 316 [we “reject the contention that under federal law, a defendant is obliged to use a peremptory challenge to 213 cure a judge’s error” in denying a challenge for cause; if court’s ruling “result(s) in the seating ofany juror who should have been dismissed for cause . . . that circumstance would require reversal”); Johnson v. Armontrout, supra, 961 F.2d at p. 754 [rejecting state’s argumentthat counsel’s failure to object to seating of biased juror waived claim for review: “When a defendantfails to object to the qualifications ofajuror, he is without remedy onlyifhe fails to prove actualbias. (Citations.) If a defendant provesthat jurors were actually biased, the conviction mustbe set aside (Citations)”]; United States v. Nelson (2d Cir. 2002) 277 F.3d 164, 204-213 [questioning whether seating ofbiased juror and thus right to be tried by an impartial tribunal. is waivable under any circumstance; but in any event holding defendant’s express waiver was invalid and trial court’s erroneous denial of challenge to biased juror for cause was reviewable on appeal]; Morrison v. Colorado (Co. 2000) 19 P.2d 668, 671 [“regardless ofwhether the defendant chose to use a peremptory challengeon the allegedly objectionable juror, because he challenged [her] for cause and sheserved on the jury, his right to an impartialtrial was Violated if his challenge for cause was improperly denied”]; State v. Gesch (Wisc. 1992) 482 N.W.2d 99, 100 [rejecting state’s argument that defense counsel can waive defendant’s right to impartial jury by failing to strike biased juror with peremptory challenge]; see also United States v. Quintero-Barraza, supra, 78 F.3d at pp. 1353-1354,dis. opn. ofTang J. [observing that majority’s dual holdings that juror was notbiased and that counsel notineffective for failing to strike biased juror “is confusing becauseeither (the juror) is biased or he is not biased.Ifhe is not biased, then counsel simply madenoerror in impaneling an unbiased juror.If (he) is biased, then the issue is whether counsel can functionally waive the defendant's right to an impartial jury;” concluding that counsel cannot waive client’s right to impartial jury].) Others courts have reversed by finding counsel constitutionally ineffective for the reasons discussed above. (See, e.g., Hughes v. United States, supra, 258 F.3d at pp. 463-464; Johnson v. Armontrout, supra, 961 F.2d at pp. 754-755; 214 McCullough v. Bennett, supra, 317 F.Supp.2d at p. 119.) Still others apply both analyses and reach the same conclusion. (See, e.g., Johnson v. Armontrout, supra, at pp. 754-755.) In sum, where, as here, it has been shown that a biased juror actually sat on a jury which returned a death verdict, the state is disentitled from executing the death judgmentregardless ofwhethertrial counselsatisfied the exhaustion rule. Finally, it bears emphasisthat the essential purpose ofthe general waiver doctrine is to bring errors to the attention ofthe trial court so that they may be corrected or avoided. (See, e.g., People v. Scott (1994) 9 Cal.4" 331, 353-356; People v. Welch, supra, 5 Cal.4” at p. 235.) This purpose is certainly met where, as here, counsel does challenge a prospective juror for cause, and specifies the basis for the challenge, but the court declines to take steps to avoid the deprivation of defendant’s right to an impartial jury. Forall ofthe foregoing reasons,trial counsel’s failure to exhausthis peremptory challengesto the jury as originally constituted did not waive Matthew’s Sixth and Fourteenth Amendmentrights to an impartial jury. Because he wasdeprivedofthat basic right, the penalty judgment mustbereversed. F. The Actions Of The Trial Court And The Prosecutor Produced A Jury Culled Of All Those Who Revealed During Voir Dire That They Had Conscientious Scruples Against Or Were Otherwise Opposed To Capital Punishment, Which Violated Matthew’s Rights to A Fair And Impartial Jury And Requires Reversal. As discussed above, the United States Supreme Court has unequivocally declaredthat “a State may not constitutionally execute a death sentence imposed by a jury culledofall those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposed to capital punishment.” (Adamsv. Texas, supra, 448 U.S.at p. 43; accord Witherspoon v. Illinois, supra, 391 U.S. at pp. 520-521.) Here, ofthe selected jurors and 215 alternates, five identified themselves as strongly in favor ofthe death penalty; five identified themselves as moderately in favor of the death penalty; six identified themselvesas neutral; and oneidentified himself as both moderately in favor and moderately against the death penalty. (CT 2869, 3608, 3636, 4185, 4466, 4577, 4907, 6886, 6969, 7353, 7494, 8175, 8617, 8894, 9221, 9788, 9896, 11342.) Of the deliberating jurors, four identified themselves as strongly in favor ofthe death penalty; four identified themselves as moderately in favor ofthe death penalty; and four identified themselves as neutral. (CT 3608, 3636, 4185, 4577, 4907, 6886, 7494, 8617, 8894, 9788, 9896, 11342.) The state excluded from the jury all ofthe venirepersons whohad identified themselves as opposedto the death penalty in principle or who otherwise expressed reservations about imposing the death penalty. Specifically, and as fully explained below,the trial court applied the Witt standardin an arbitrary, inconsistent, and fundamentally unfair manner to exclude “life-inclined”jurors. Asto the few remaining “life-inclined” jurors who escaped the court’s uneven application of Witt, the prosecutor excluded them with peremptory challenges. The joint efforts of the two state actors thus resulted in a “jury culled ofall those whorevealed during voir dire examination that they had conscientious scruples against or were otherwise opposed to capital punishment” (Adams v. Texas (1980) 448 U.S. 38, 43) and therefore produced “a jury uncommonly willing to condemn a man to die” (Witherspoonv.Illinois, supra, 391 U.S. at pp. 520-521). For this reason alone, the death sentence cannot be executed. (Ibid.) 1. Thetrial court applied the Witt standard in an arbitrary and capricious manner, which was fundamentally unfair and amounted to an abuse ofdiscretion not entitled to deference. A numberofprospective jurors made it “unmistakably clear” that they would automatically vote for one penalty over another, regardless of the evidence, 216 and were accordingly excused for cause. Of course,there is little discretion for the trial court to exercise with respect to such clearly disqualified jurors. (See,e.g., Wainwright v. Witt, supra, 469 U.S. at p. 423; Witherspoonv.Illinois,supra, 391 USS. at p. 522 and n.21.) The court’s exercise of discretion becomessignificant, however, as to those jurors whoare not so “unambiguous”or “unmistakably clear” about their feelings. (Wainwright v. Witt, supra, at pp. 426, 429.) Under the Witt standard, the court must make the more difficult determination ofwhether those jurors’ feelings would “prevent or substantially impair” their ability to follow their oaths and perform their duties as jurors. (Id. at p. 423.) As discussed above, the court’s exercise of discretion in determining whether challenged jurors meet this standard is “subject to essential demandsof fairness” (Hughes v. United States, supra, 258 F.3d at p. 457; Wolfe v. Brigano, supra, 232 F.3d at p. 504; U.S. Const., Amend. XIV) and maynotbe arbitrary, capricious or partial (People v. Warner, supra, 20 Cal.3d at p. 683; People v. Surplice, supra, 203 Cal.App.2d at p. 791; Gray v. Klauser, supra, 282 F.3d pp. 645-648, 651 [and authorities cited therein].) Unfortunately, an examination ofthe court’s rulings on challenges for causein this case to jurors who were not “unmistakably clear” about their feelings reveals that its application of.the Witt standard was not even-handed. To the contrary, as demonstrated below, a comparison ofthe trial court’s application of the Witt standard to “life-inclined” and “death-inclined” venirepersons whose answers were remarkably similar reveals that its exercise of discretion was arbitrary and capricious. (Cf. People v. Heard, supra, 31 Cal.4™ at p. 964 [in concludingthat trial court improperly excused juror for cause based on particular answer, Court observed that a numberofseated jurors provided the same answer].) In other words, the court’s uneven application of the Witt standard was fundamentally unfair (cf. Gray v. Klauser, supra, 282 F.3d at pp. 645-648, 651), resulted in a “jury culled of all those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposedto capital 217 punishment” (Adamsv. Texas, supra, 448 U.S.at p. 43) and therefore produced “a jury uncommonly willing to condemn a man to die” (Witherspoonv.Illinois, supra, 391 U.S. at pp. 520-521). For this reason alone, the death sentence cannot be executed. (Ibid.) At the very least, because the court’s application of the Witt standard wasarbitrary and capricious, its rulings as to Ms. Madali, Mr. Froyland, and Juror No. 5, discussed above,are not entitled to deference. (See, e.g., People v. Welch, supra, 5 Cal.4" at p. 234.) a. “Death-inclined” jurors whom the court refused to excuse for cause. Asdiscussed in parts C and D, Ms. Madali and Mr. Froyland were dismissed because their answers as a whole indicated that they would be inclined to vote for one penalty over the other(in their case, life), that it would be very difficult for them to vote for the other penalty (in their case, death), and thatit would require substantial evidence to persuade them to do so. (CT 5168, 5181- 5185; RT 745-749, 896-901.) Viewing the court’s rulings as a representation of its interpretation ofthe Witt standard for exclusion, then both fundamental fairness and judicial discretion required the court to apply that standard consistently to both “life-inclined”jurors and “death-inclined” jurors. As counsel pointed out below (RT 912), and as will be demonstrated, it did not. Similar to Ms. Madali and Mr. Froyland, and as discussed in part E, Juror No. 5’s answers as a whole indicated that he would be inclined to vote for one penalty overthe other (in his case, death), that it would be very difficult to vote for the other penalty (in his case, life), and that it would require substantial evidence to persuade him to do so. (CT 3608-3612; RT 412-420.) There were differences in their responses, of course. While Ms. Madali could envision cases in which she would vote for death (RT 897-899), short ofaccidents and casualties ofwar, Juror No. 5, on the other hand, could not envision murder cases in which he would vote for life. (RT 416-419.) While Ms. Madali unequivocally promised to follow the 218 law and considerall the evidence in deciding the appropriate penalty (RT 901;CT 5181), Juror No. 5 only promised only “try.” (RT 420.) Ms. Madali’s and Mr. Froyland’s statements that they would only vote for death ifpersuaded by the evidence were entirely consistent with the law and their duties as jurors (see People v. Prieto, supra, 30 Cal.4™ at p. 263), while Juror No. 5’s statementthat he would vote for life only in the face of substantial mitigating evidence was inconsistent with the law and his duties as a juror (see People v. Boyette, supra, 29 Cal.4™ at p. 419.) Even under the court’s interpretation and application of the Witt standard for exclusion, Juror No. 5 met it even more clearly than Ms. Madali and Mr. Froyland. It seems obvious, then, that the most important difference between their answers, and the reason Ms. Madali and Mr. Froyland were dismissed for cause and Juror No. 5 was not, was that Ms. Madali and Mr. Froyland werelife- inclined while Juror No. 5 was strongly death-inclined. Unfortunately, the troubling comparisons do not end with Ms. Madali, Mr. Froyland and Juror No. 5. Prospective juror Labuda, whosefather-in-law was an investigator for the Alameda County District Attorney’s Office, identified himself on the questionnaire as “moderately in favor” ofthe death penalty. (CT 4955, 4962- 4963.) Asto his general feelings about the death penalty, he stated that he felt “generally” that it was right;” as to his general feelings aboutlife without parole, he stated, “why should one that was found guilty ofmurder get anything less than the victim??” (CT 4962, 4966.) Asked whether he would “want” to know more about the defendant’s background before deciding the appropriate penalty, he answered that he would not, explaining “what difference would it make.” (CT 4963.) Asked ifhe could consider background or “any sympathetic or any other aspect about the defendant[‘]s character or record as a basis for a sentence Jess than death” if he were “required” to do so, he again respondedin the negative, explaining, “I doubt it. The defendants would be ontrial for what they did, not whothey are or their background.” (CT 4966.) 219 On voir dire, Mr. Labuda stated that he believed in an “eye for an eye” and that he leaned “strongly towards the death penalty.” (RT 853, 857.) In its voir dire examination, the court explained that the law would require him to listen to such evidence before deciding the appropriate penalty and asked if he could do so; Mr. Labuda agreed that he could. (RT 846-848.) Michael’s counsel immediately questioned Mr. Labuda aboutthe inconsistency between his questionnaire answer and his answerto the judge regarding his willingness to consider mitigating evidence. (RT 851, 853.) Mr. Labuda replied that he was still unsure ofwhat “difference” the defendant’s background would makein deciding the appropriate penalty, but he “guess[ed]” that he would not automatically vote for death regardless of other factors. (RT 852.) However, he was “more strongly towards the death penalty. And the fact that the way they’re brought up or — I guess I wouldn’t consider thosefactors as much. ... I would look at them maybe less. I don’t understand how a person was brought up wouldinfluence that decision.” (RT 853.) Asked if his views favoring the death penalty would “impede[]” his consideration of such evidence,he replied, “T guess so.” (RT 853.) Matthew’s counsel explained that in order to determine the appropriate penalty ifthe defendants were found guilty as charged, the law required the jurors to consider evidence about the defendant himself, including his background. (RT 854.) Understanding that the law would require him to do so, counsel asked him if he would “honestly” consider the defendant’s background. (RT 854.) The court reporter noted that Mr. Labuda did not respond. (RT 854.) Counsel explained, “it’s okay ifyou can’t. Honestly,it is.’ (R 854.) Mr. Labudareplied, “I guess not. I guess I couldn’t.” (RT 854.) Asit did with Juror No.5, the court immediately embarked upon an effort to rehabilitate Mr. Labuda. (RT 854.) The court asked Mr. Labuda to assume hypothetically a defendant with no criminal history, who “his entire adult life... has been a pillar ofthe community. 10 years ago he rushedinto a burning 220 building and saved twokitties. You have a right and a duty to consider that evidence in determining what punishmentis appropriate. Do you have any problem considering that evidence?” (RT 856.) Mr. Labuda replied that he did not. (RT 856.) However, upon further questioning by Michael’s counsel, he agreed thathis “true feeling” was “an eye for an eye.” (RT 857.) The court again responded by asking Mr. Labudaifhe could “consider both penalty options,”to which Mr. Labudareplied that he could. (RT 857.) The court denied the defense challenge for cause to Mr. Labuda. (RT 871-876.) Thus, like Ms. Madali and Mr. Froyland, Mr. Labuda’s answers as a whole clearly indicated that he was inclined to vote for one penalty over the other (in his case, death), that it would be — at the very least — difficult for him to consider relevant evidence supporting the other penalty (in his case, life), and that he would have to be persuaded by the evidenceto vote for the other penalty. Furthermore, like Ms. Madali, Mr. Labuda was“struggling,” as evidenced by his answers and — just like Ms. Madali — his “delay” in answering someofthe questions. (RT 854, 911.) The significant difference in their responses was that Ms. Madali and Mr. Froyland were open to hearing and consideringall kinds of aggravating evidence in determining the appropriate penalty while Mr. Labuda expressed extreme reluctance to consider highly relevant mitigating evidence, even ifrequired to do so. (CT 4966, 852-856.) Again, ifMs. Madali and Mr. Froyland metthe court’s interpretation ofthe Witt standard for exclusion, Mr. Labudasurely did, as well. Again, it seemsclear that the most significant difference in their responses, and the reason the court excluded Ms. Madail and Mr. Froyland but not Mr. Labuda, was that Ms. Madali and Mr. Froyland werelife-inclined while Mr. Labuda was “strongly” death-inclined. (RT 852-853.) Similarly, prospective juror Illige identified herself as “moderately in favor” ofthe death penalty. (CT 4851-4852.) Asked about her general feelings regarding both penalties, she stated on her questionnaire,“I do feel strongly that a person commits a murder, he/she should be punished. . . . We do not need any 22] more prisons! They’re costly and stupid! A murder without a cause deserves the death penalty.” (CT 4851, 4855.) Asked whether she could consider “any sympathetic or any other aspect about the defendant[‘]s character or record as a basis for a sentence Jess than death”if she were “required”to do so, she unequivocally answered, “No, those factors will not effect [sic] my decision on the penalty. Emotionally, I will feel sorry for the defendants about his/her family history; howeverI believe that every human being (as a grown-up) should have the mental ability to decide ‘rights’ from ‘wrongs’.” (CT 4855, emphasis in original.) On voir dire, the court inquired into her stated refusal to consider sympathetic factors about the defendants in determining the appropriate penalty. (RT 810.) She replied, “I still stand by that.” (RT 810.) The court explained that the law would require her to consider “all kinds of evidence,” including facts about the defendants and askedher, “it that’s the law[,] could you follow that?” (RT 810.) MsIllige finally responded that she would. (RT 810.) In a patent effort to rehabilitate and qualify Ms.Illige, the court asked her if she “would have a problem” with considering evidence that the defendant’s had committedgreat, selfless acts ofheroism in mitigation and she replied that she would not. (RT 811.) The court told her that jurors were to have an open mind about the appropriate penalty; she initially agreed that she could have an open mind,but later explained that because she did not “know anything about the case, I can’t say whether I would have an open mind.” (RT 813-814.) Michael’s counselclarified that she would “know” something “about the case” if they reached the penalty phase because the defendants would be guilty of at least two murders. (RT 818-819.) He explained that the question was whether she could keep an open mindabout the appropriate penalty once the jurors found the defendants guilty beyond a reasonable doubt. (RT 818-819.) This time she replied, “I may be contradictory [sic] to myself, but I think at this time, if I went through the first phase, and I pretty much believe with all the evidence that’s 222 presented to me,that he’s guilty as hell, then I think I would vote for the death penalty. I don’t know. That’s what I’m thinking right now.” (RT 819.) On the prosecutor’s examination, Ms.Illige reiterated that she would “be leaning towards the death penalty” if the defendants were guilty as charged. (RT 819.) As the court had asked, the prosecutor asked her if she would consider “good things” about the defendants, such as great acts of heroism. (RT 819.) This time she replied that that ifthe defendants were guilty as charged, it would “just very strongly influence my decision that the guy should be put on the death penalty [but] I may consider other factors.” (RT 819-820, emphasis supplied.) The prosecutor pressed her, again asking if she would “listen and consider the good evidence that was presented about the defendants.” (RT 820.) Shefinally replied that she “guess[ed]” she would “listen.” (RT 820.) Again, the trial court denied the defense challenge for cause. (RT 870-871.) Onceagain, like Ms. Madali and Mr. Froyland, Ms.Illige’s answers as a whole clearly revealed that she was inclined toward one penalty (in her case, death). Unlike Ms. Madali and Mr. Froyland, who promisedto considerall ofthe evidence and indeed would vote for death if persuaded by the aggravating evidence, Ms.Illige was extremely reluctant to even consider mitigating evidence, when pressed agreed only that she “guess[ed]” she would “listen” to such evidence, and never indicated that even extreme mitigation could persuade her to vote for life. (CT 4855, 810, 818-820.) Once again, if Ms. Madali and Mr. Froylandsatisfied the Witt standard for exclusion, there can be no question that Ms.Illige did, as well. (RT 870-871.) The court’s dismissal ofMs. Madali and Mr. Froyland andits refusal to dismiss Ms. Illige further reflects the court’s unevenand inconsistent application ofthe standard. Finally, prospective juror Wesson identified himself as “moderately in favor” of the death penalty. (CT 6281.) He believed that the death penalty was appropriate in some cases. (CT 6281.) As to the cases in which it was not appropriate, he explained that life without parole “should be awarded only in 223 circumstances that were not premeditated and were more accident than intended” and that he did not believe that life without parole “is a punishment.” (CT 6285.) Askedifhe could consider mitigating evidence about the defendant if “required” to do so, he explained that “motives or lack thereofshould determinethe penalty. It is important to know whyor wherean individual’s life was at prior or during the offense. Adjustmentto jail is irrelevant.” (RT 6286.) On voir dire, the court followed up on Mr. Wesson’s answerthatlife without parole would only be appropriate for crimes that were not premeditated but “more accidental.” (RT 1045.) The court explained that accidents do not qualify as first-degree murder. The court did not explain that the first-degree murdercharges in this case would require a finding ofpremeditation, but rather simply asked him if he would have an open mindasto both penalties if the defendants were found guilty as charged. (RT 1045-1047.) Mr. Wesson explained that he could. (RT 1047.) Upon questioning by Michael’s counsel, Mr. Wessonreiterated that the death penalty should be imposedin cases ofpremeditated murder. (RT 1053- 1054.) Michael’s counsel asked him what the appropriate penalty wouldbe ifthe defendants were convicted as charged in this case and at least one ofthe crimes was premeditated murder. (RT 1054-1055.) Again, Mr. Wesson replied that, “based solely on whetherit was premeditated or not, I would haveto be inclined for the death penalty,” because “the death penalty was appropriate in “every case where [he] found premeditation to be present.” (RT 1055; see also,e.g., People v. Kirkpatrick (1994) 7 Cal.4™ 988, 1005 [“a prospective juror who would invariably vote either for or against the death penalty because of one or moreofthe circumstanceslikely to be presentin the case being tried, without regard to the strength of aggravating and mitigating circumstancesis . . . subject to challenge for cause .. .”].) He also reiterated that if a defendant were convicted of premeditated murderand sentencedto life without parole, he would “eventually becomeacclimated to [his] environment and eventually [he] wouldn’t necessarily 224 be being punished. (RT 1055-1056.) Mr. Wessonindicated that he believed that evidence of the defendants’ post-crime behavior wasirrelevant. (RT 1059-1060.) The court again asked him ifhe would consider such evidenceifthe law required him to do so; while still expressing reservations about the relevance of such evidence, he replied that he would considerit in making the penalty determination ifthe law required him to do so. (RT 1058-1060.) The court denied the defense challenge to Mr. Wesson for cause. (RT 1072-1076, 1331-1332..) Again, like Ms. Madali and Mr. Froyland, Mr. Wesson wasstrongly inclined toward one penalty and would have to be persuaded by the evidence to vote for the other. IfMs. Madali and Mr. Froylandsatisfied the Witt standard, then so did Mr. Wesson. b. “Life-inclined” jurors whom the court excused for cause. Basedon the court’s application of the Witt standard to the “death- inclined”jurors, it would appear that the court determined that the standard was not satisfied even if a prospective juror was “strongly”in favor of one penalty over the other, would find it difficult to vote for the other penalty ifthe defendants were convicted ofpremeditated murder, would have to be persuaded by the evidenceto vote for the other penalty, expressed great reluctance, even unwillingness, to even considercertain kinds of constitutionally relevant evidence, and could not envision a situation in which they could vote for the other penalty. Once again,ifthis were the court’s interpretation of the Witt standard, then the court had to apply that standard fairly and impartially. Again, it did not. Asalready demonstrated, Ms. Madali’s and Mr. Froyland’s answers certainly would notsatisfy this standard. Similarly, prospective juror Rutland identified herself as moderately against the death penalty, explaining that she opposedits application except under“special and/or severe circumstances.” (CT 3035; RT 552.) She held no religious or philosophical principle that would affect 225 her ability to vote for death. (CT 3036.) The court immediately inquired into these statements, asking Ms. Rutland directly, “do you think it is a realistic possibility that you could impose the death penalty in this case?” (RT 552.) She understandably replied, “I’d have to know more about. . . the case than what you’ve told me, but generally speaking I’m not in favor ofthe death penalty.” (RT 552.) Ms. Rutland agreed with the court’s impression that she had “not ruled out the possibility of imposing the death penalty, but that basically you don’t think it should exist.” (RT 552.) Given these feelings, the court pressed, “realistically, practically speaking, do youreally think you could give the People, the representative ofthe People a fair shake in this?” (RT 552-553.) She replied, “no, because I don’t believe in the death penalty, basically.” (RT 553.) Finally, the court asked her if “short ofmass murderers,serial killers, or war criminals, do you really think that you could considerit at all?” (RT 553.) She replied, that the case would haveto present the “severe circumstances, such as the ones you’ve described . . . ““ (RT 553, emphasis supplied.) The trial court granted the prosecutor’s challenge for cause without explanation. (RT 553.) Nothing in Ms. Rutland’s answersindicated that she was any moreinclined to vote forlife than the death-inclined jurors were to vote for death. Her sentiments, in fact, were an entirely accurate reflection ofthe law: the death penalty is only appropriate except under “special and/or severe circumstances.” (RT 3035.) The court madenoeffort to flesh out those circumstances other than to ask her if she could vote to execute someone “short of” the most heinous offenders, such as mass murderers. In stark contrast, when the death-inclined jurors expressed their emphatic feelings that convicted murderers should be sentenced to death, the court did not ask them ifthey would consider voting for life for people “short of” the most sympathetic offenders, such as war heroes. Rather the court simply asked them if they would consider evidence such as past acts ofheroism and baseda finding of impartiality on their willingness (no matter howreluctant) to do so. 226 Similarly, prospective juror Leong identified himself as neutral regarding the death penalty and held noreligious or philosophical beliefs that would affect his ability to vote for death, but also indicated that he did not believe that the death penalty is necessary. (CT 7654-7655; RT 1239.) The court immediately inquired into Mr. Leong’s latter statement; he replied that he questioned whetherit would be appropriate to take a defendant’s life “if it’s not a serious killing.” (RT 1239.) Rather than inquiring further, the court granted the prosecutor’s challenge for cause without explanation. (RT 1239.) Once again, Mr. Leong expressed no greater preference for one penalty or reluctance to vote for the other than the death-inclined jurors whom the court refused to excuse for cause. Rather than providing sufficient basis to concludeits voir dire and exclude Mr. Leong for cause, his statement that the death penalty was not appropriate unless “it’s a serious killing” was entirely consistent with the law. Moreover, when the death-inclined jurors expressed a strong preference for the death penalty, the court took care to explain that the law would required them to consider additional evidence, to present hypothetical examples of such evidence, and to obtain their assurance that they would follow the law and consider that evidence in determining the appropriate penalty. In stark contrast, when Mr. Leong — as well as Mr. Froyland and Ms. Rutland — expressed the same sentiments but in favorof life, the court did none ofthese things, but rather concludedits voir dire examination and granted the prosecutor’s challenges to excuse them for cause. Asthe foregoing demonstrates, the court’s application ofthe Witt standard simply was not even-handed,but rather unfairly favored the prosecution in violation of state law and Matthew’sright to due process. (See,e.g., People v. Champion,supra, 9 Cal.4™ at p. 908 [application ofWitt standard must be evenhanded]; see also Gray v. Klauser, supra, 282 F.3d at pp. 645-648, 651 [trial court’s uneven andarbitrary application of legal standard in way favors prosecution over the defense violates due process].) Furthermore, given the 227 court’s inconsistent and unfair application ofthe Witt standard, its findings that Ms. Madali and Mr. Froylandsatisfied it, and that Juror No. 5 did not, are not entitled to any deference whatever. (See, e.g., People v. Welch, supra, 5 Cal.4™ at p. 234; People v. Warner, supra, 20 Cal.3d at p. 683.) 2. The prosecutor’s exercise of peremptory challenges to excuse the few life-inclined jurors who remained produceda jury from whichall such jurors were excluded and violated Matthew’s rights to a fair and impartial jury. Notsurprisingly, following the court’s rulings on the challenges for cause, there were few life-inclined venirepersons remaining andcertainly a disproportionate numberoflife-inclined and death-inclined venirepersons. Ofthe few that remained, the prosecutor excluded them with peremptory challenges. (RT 1546-1556, 1851, CT 10312 [prospective juror Chryst]; RT 1593-1602, 1820, CT 10860 [prospective juror Gonzalez]; RT 1818, CT 2979 [prospective juror Rodriguez]; RT 1827; CT 5209 [prospective juror Marchant].) Matthew recognizesthat this Court has repeatedly held that a prosecutor’s exercise ofperemptory challenges to exclude life-inclined jurors, or “death- penalty skeptics,” does not offend the federal constitution. (See, e.g., People v. Ochoa, supra, 26 Cal.4™ at p. 432 [and authorities cited therein].) However, where, as here, state action — whetheron the part ofthe trial court, the prosecutor, or any combination thereof— results in a jury purged ofall those with any scruples against imposing the death penalty, he respectfully submits that blind adherence to these decisions is contrary to clearly established United States Supreme Court precedent. (Adamsv. Texas, supra, 448 U.S. at p. 43; Witherspoonv.Illinois, supra, 391 U.S.at pp. 520-521.) In any event, the rationale underlying the Court’s refusal to find that the use ofperemptory challenges to exclude life-inclined jurors offends the constitution is 228 that the defense is granted an equal number ofperemptory challenges with which it is free to exclude death-inclined jurors. (See, e.g., People v. Ochoa, supra, 26 Cal.4" at p. 432.) Even assumingthe correctnessofthis rationale andits application to some cases — indeed, to most cases — it does not apply to this case. This is so because the defense and the prosecution were not on equal footing when they exercised their peremptory challenges. As discussed above,thetrial court refused to exclude death-inclined jurors who were disqualified, excused life- inclined who were not disqualified, and otherwise applied the Witt standard inconsistently and unfairly in a manner than benefited the prosecution and resulted in the unjustified exclusion of a disproportionate numberoflife-inclined jurors. Hence, unlike the prosecutor, many ofthe defense exercise ofperemptories had to be directed toward damagecontrol — for instance, by challenging those jurors whom the court should have excused for cause. (RT 1817 [defense exercise of peremptory to Mr. Wesson]; RT 1822 [defense exercise ofperemptory to Ms. Illige]; RT 1823 [defense exercise ofperemptory to Mr. Labuda].) Hence, the prosecution and the defense did not exercise their peremptory challenges on a level playing field. The pool ofremaining jurors was already unfairly skewed toward death due to improperstate action. Indeed, the proofis in the pudding: not a single life-inclined juror sat on the jury that decided Matthew should be put to death. Regardless of the vehicle by which the state achieves the result, it is settled that when the state has excludedall such citizens from a capital jury, the “State 99 66.crosse[s] the line of neutrality,” “produce[s] a jury uncommonly willing to condemn a man to die,” and violates the Sixth and Fourteenth Amendments because “the decision whether a man deserves to live or die must be made on scales that are not deliberately tipped toward death.” (Witherspoonv. Illinois, supra, 391 U.S. at pp. 520-522 and n. 20.) Finally, counsel’s failure to object to the prosecutor’s exercise of peremptory challenges to purge the panel ofthe few life-inclined jurors that remained after the court’s unfair rulings on the challenges for cause should not be 229 deemed to have waived the issue for appeal. It is well settled that counsel is not obligated to make futile objections. (See, e.g., People v. Hamilton (1989) 48 Cal.3d 1142, 1189 and n. 27.) As noted above, this Court has consistently rejected claims that a prosecutor’s use ofperemptory challenges to exclude life-inclined jurors, or “death penalty skeptics” violates the federal constitution. What distinguishes this case from that line of authority is the trial court’s erroneous application ofthe Witt standard to stack the deck against the defense andin favor ofthe prosecution. Since the trial court had already determined that its application ofWitt was correct and appropriate, it is clear that any objection on these grounds would havebeen futile. In sum, the combination ofthe court’s inconsistent and fundamentally unfair application ofWitt and the prosecutor’s exercise ofperemptory challenges resulted in a “jury culled ofall those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposedto capital punishment” (Adamsv. Texas, supra, 448 U.S. 38, 43) and thus “a jury uncommonly willing to condemn a man to die” (Witherspoonv.Illinois, supra, 391 U.S. at pp. 520-521). Therefore, the death judgment imposed by this jury cannot be executed. (Ibid.) 230 VIL. THE PENALTY PHASE JUDGMENT MUST BE REVERSED BECAUSEIT IS REASONABLY LIKELY THAT THE JURORS READ THE COURT’S MODIFIED LINGERING DOUBT INSTRCTION TO PRECLUDE CONSIDERATION OF THEIR LINGERING DOUBTS REGARDING MATTHEW’S ROLEIN THE CRIMES, IN VIOLATION OF STATE LAW AND THEFIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS. A. Introduction. Asdiscussed in ArgumentI, the evidence that Matthew, rather than Michael, wasthe actual shooter was extraordinarily close. Given the jurors’ determination that the non-shooting aider and abettor did not intendto kill and thus wasnot even eligible for the death penalty, their resolution ofthis close question was ofmonumental importance. While the jurors remarkably determined beyond a reasonable doubt that Matthew wasthe actual shooterin the guilt phase, any rational human being would have had lingering doubts about that determination. Accordingly, in the penalty phase, counsel requested a special defense instruction informing the jury that it could consider their lingering doubtsthat Matthew was the “actual shooter” in determining whether to execute him or spare his life. (CT 755; RT 3571-3572.) The prosecutor objected to the instruction. (RT 3558-3559.) While the court agreed that it would be appropriate to instruct the jury to considerits lingering doubts as to “guilt,” it refused to instruct the jury to considerits lingering doubts regarding any specific questions. Hence, the court modified the requested instruction to read: “it may be considered asa factor in mitigation ifyou have a lingering doubtas to the guilt ofthe defendant.” (RT 3699, 3852; CT 783.) Trial counsel emphasized,“I still would request that it be given the way we requestedit, but failing that, I’m satisfied with this, your honor.” 231 (RT 3699.) Hence, the court instructed the jury with its modification. (RT 3866; CT 783.) Unfortunately, as explained below, the modified instruction was, at the very least, potentially misleading because it suggested that the jurors’ consideration of their lingering doubts was limited to the question ofMatthew’s “guilt” for the murders and not to any other issues, such as whether Matthew was the actual shooter and not the non-shooting aider and abettor, whom the jurors had determined did not intend to kill. Because they repeatedly had been told that the guilt”2 66identity of the actual shooter was irrelevant to the question ofthe brothers ofthe murder and attempted murder charges, that crucial issue was not encompassedin the court’s instruction. Furthermore,the heart ofthe prosecution’s penalty phase case was to condemn Matthew forhis role andhisacts as the actual shooter. The prosecutor repeatedly and emphatically argued thatit would be inappropriate for the jurors to “even consider”their lingering doubts regarding this issue and that it was grossly inappropriate for Matthew to continue to “blame his brother” and to ask them to “second-guess”their guilt phase decision. Given the record as a whole, it is reasonably likely that the jurors did not consider or give effect to their lingering doubts that Matthew wasthe actual shooter, in violation of state law and the Fifth, Eighth and Fourteenth Amendments. Finally, given the enormous importance ofthe question and the closeness ofthe penalty phase case, the penalty judgment must be reversed. B. The Controlling Legal Principles. Penal Code section 190.3 mandates that the jury “shall take into account any ofthe following factors ifrelevant,” followed by a list of 11 factors. Under factor (a), the jury must consider “[t]he circumstances ofthe crime ofwhich the defendant was convicted in the present proceeding..." (Pen. Code § 190.3, subd. (a). If relevant, factor (j) requires the jury to consider “whether or not the 232 defendant was an accompliceto the offense and his participation in the commission ofthe offense wasrelatively minor.” Factor (k) is a catch-all factor and includes “Any other circumstance which extenuates the gravity ofthe crime even thoughit is not a legal excuse for the crime." (Pen. Code § 190.3, subd.(k).) Pursuantto these provisions, lingering or residual doubts regarding the defendant’s guilt of, or his role in, the underlying crime constitutes relevant mitigation that a defendantis entitled to present and have the jury consider. (See, e.g., People v. Jones (2003) 30 Cal.4™ 1084, 1125 [lingering doubt that another wasactualkiller is circumstance of offense under section 190.3, subd. (a) and thus is relevant mitigation]; People v. Earp (1999) 20 Cal. 4th 826, People v. Cox (1991) 53 Cal.3d 618, 676, People v. Kaurish, supra, 52 Cal.3d at p. 706; People v. Hawkins (1995) 10 Cal. 4th 920; People v. Terry (1964) 61 Cal.2d 137, 147.)°° Asthe Court has explained, under California law, capital jurors may “conclude that the prosecution has discharged its burden ofproving defendant's guilt beyond a reasonable doubtbut... still demand a greater degree of certainty of guilt for the imposition ofthe death penalty... .. Judges and juries must time and again reach decisionsthat are not free from doubt; only the most fatuous would claim the adjudication of guilt to be infallible. The lingering doubts ofjurors in the guilt phase may well cast their shadowsinto the penalty phase and in some measure affect the nature ofthe punishment.” (People v. Terry, supra, at pp. 145-146; accord, e.g., People v. Jones, supra, at p. 1125.) Indeed, lingering doubt is recognized as such a compelling factor in the penalty determination under California law that the Court has consistently recognized that an attorney may reasonably basehis entire penalty phase defense 30 Otherjurisdictions agree: see, e.g. United States v. Davis (E.D.LA 2001) 132 F.Supp.2d 455 [construing federal death penalty statute]; Tennessee v. Teague (Tenn. 1995) 897 S.W.2d 248, 252-253; see also Model Pen. Code § 210.6(1)(f) [categorically precludes a death sentence where the evidence ofguilt, although sufficient to sustain the verdict, "does not foreclose all doubt respecting the defendant's guilt."].) 233 strategy uponit. (See, e.g., People v. Carter (2003) 30 Cal.4" 1166, 1212; People v. Cox, supra, at p. 660; see also, e.g., Williams v. Woodford (9% Cir. 2002) 306 F.3d 665, 715 [counselnot ineffective for failing to pursue other penalty phase strategies where herelied on “viable lingering doubt defense”); Tarver v. Hopper (11™ Cir. 1999) 169 F.3d 710, 715-716 [counsel’s reliance on lingering doubt was 669 999more than reasonable given its “powerful mitigating’” effect, as demonstrated by results of comprehensivestudies]; Andrewsv. Collins (5" Cir. 1994) 21 F.3d 612, 624 and n.21, cert. denied 513 U.S. 1114 (1995)[rejecting ineffective assistance of counsel claim where counsel’s sole penalty phase strategy rested on lingering doubts, a strategy that “has been recognized as an extremely effective argument for defendants in capital cases”]; Stewart v. Dugger (1 1° Cir. 1989) 877 F.2d 851, 856.) Indeed, as one court has putit, “residual doubt is perhaps the most effective strategy to employ at sentencing.” (Chandler v. United States (1 1" Cir. 2000) 218 F.3d 1205, 1320, n. 28; accord Lockhart v. McCree, supra, 476 U.S.at p. 181 [“residual doubt has been recognized as an extremely effective argument”in mitigation].) For Eighth Amendment purposes, the United States Supreme Court has defined constitutionally relevant mitigating evidence “in the most expansive terms.” (Tennard v. Dretke (2004) 542 U.S. __, 124 S.Ct. 2562, 2570.) “Relevant mitigating evidence is evidence which tendslogically to prove or disprove somefact or circumstance whicha fact-finder could reasonably deem to have mitigating value.’” (Ibid., quoting from McKoyv. North Carolina (1990) 494 U.S. 433, 440-441.) Put another way, constitutionally relevant mitigating evidence is evidence that may “serve as a basis for a sentence less than death.” (Skipper v. South Carolina, supra, 476 U.S.at p. 4; accord McKoy v. North Carolina, supra, 494 U.S. at p. 441.) Hence, because lingering doubt can “serve as a basis for a sentence less than death” in California, it is also constitutionally relevant mitigating evidence under the federal constitution. “Once this low threshold for relevance is met, the ‘Eighth Amendment requires that the jury be 234 able to consider and give effect to’ a capital defendant’s mitigating evidence.” (Tennard v. Dretke, supra, at p. 2570, quoting from Boyde v. California, 494 U.S. at pp. 377-378 [and authorities cited therein]; Buchanan v. Angelone (1998) 522 U.S. 269, 275.) Certainly, there is no question that consideration of lingering doubt serves the paramount need for heightenedreliability in death penalty judgments. (See, e.g., Caldwell v. Mississippi, supra, 472 U.S.at p. 340; Lockett v. Ohio, supra, 438 U.S.at p. 604.) Moreover, because California law does recognize and give effect to lingering doubts as a basis for a sentence less than death, a capital defendant has a 3 To be sure, in 1988, a plurality ofthe United States Supreme Court questioned — arguably in dicta — whether the Eighth Amendmentrequires states to give effect to residual or lingering doubts regarding the defendant’s guilt or innocence becauseit reasoned that such doubts are not “over any aspect of a defendant's character or record and any ofthe circumstancesofthe offense,” and therefore are not constitutionally relevant under its prior decisions; the holding of that case, however, was simply that there was no constitutionalviolation in any event because the jury was not precluded from considering those doubts. (Franklin v. Lynaugh (1988) 487 U.S. 164, 172-174, 176.) As a preliminary matter, the plurality’s discussion ofthe constitutional relevance of lingering doubts is questionable in light of later decisions broadly defining constitutional relevance under the Eighth Amendment, as discussed above. (See, e.g., Tennard v. Dretke, supra, 542 U.S. _, 124 S.Ct. at p. 2570; McKoyv. North Carolina, supra, 494 U.S. at pp. 440-441.) In any event, the issue is distinct from that presented here for at least two reasons. First, because California does give effect <0 fingering doubt as a basis for a sentence less than death, it may serve as a basis for a sentence less than death and therefore becomes relevant underthe federal constitution, particularly where the defendantrelies on this well settled principle as part ofhis penalty phase defense. (See Skipper v. South Carolina, supra, 476 US.at p. 4; accord McKoyv. North Carolina, supra, 494 U.S.at p. 441; Hicksv. Oklahoma (1980) 447 U.S. 343, 346.) Second, the Franklin plurality questioned the relevance of lingering doubt as to guilt, or whether the defendant was culpable or involvedat all, not the relevance oflingering doubt regarding a “guilty” defendant’s actual role in the crime(s). (See, e.g., Rupe v. Wood (W.D. Wn. 1994) 863 F. Supp. 1315, 1340,affirmed (9" Cir. 1996) 93 F.3d 1434; Tennessee v. Teague, supra, 897 S.W.2d at pp. 252-253.) There is no question that a “guilty” defendant’s degree ofparticipation,or role, in the crime is relevant to his 235 substantial and legitimate expectation that he will not be deprived ofhis life or liberty unless his jury considers those doubts. Hence, state action precluding a capital jury from considering lingering doubt in determining the appropriate penalty violates the Fourteenth Amendment’s guarantee to due process. (Hicksv. Oklahoma(1980) 447 U.S. 343, 346 [although federal constitution does not require states to employ jury sentencing in non-capital cases, once state does so, right it is protected by federal due process because a defendant “has a substantial and legitimate expectation that he will be deprived ofhis liberty only to the extent determined by the jury in the exercise ofits statutory discretion”); Fetterly v. Paskett (9™ Cir. 1993) 997 F.2d 1295, 1300-1301, cert. denied 513 U.S. 914 (1994); Ballard v. Estelle (9" Cir. 1991) 937 F.2d 453, 456.) Similarly, becauseit a viable penalty phase defense strategy under California law, where counsel attempts to rely on a lingering doubt strategy, state action precluding the jury from considering the defense may violate defendant’s Sixth Amendmentrights to effective counsel and to present a defense, and Fifth and Fourteenth Amendment rights to a fair trial. (Cf. Conde v. Henry, supra, 198 F.3d at pp. 734, 739-740 [trial court’s instructional error and other rulings prevented consideration of primary defense and violated Fifth and Sixth Amendmentright to effective counsel, to present a defense, andto a fair trial]; see also Silva v. Woodford cg" Cir. 2002) 279 F.3d 825, 847, [“’we must be especially cautious in protecting a defendant’s right to effective counsel at a capital sentencing hearing’”].) Finally, theDue Process Clause ofthe Fourteenth Amendmentalsoentitles a defendant to present evidence relevantto rebut the prosecution’s case for death. For instance, even if a defendant’s parole ineligibility would not be constitutionally relevant mitigating evidence under the minimum Eighth Amendmentstandards, a defendant would have an independent due processright to present, and have the jury consider, such evidenceifthe prosecution relies on culpability and thus “constitutionally relevant.” (See, e.g., Lockett v. Ohio (1978) 236 the defendant’s future dangerousnessas a reason for imposing death. (Simmonsv. South Carolina (1994) 512 U.S. 154, 161-163; accord Skipper v. South Carolina supra, 476 U.S. at p. 5, n.1 [same — adjustmentto jail].) Pursuant to this principle, if the prosecution relies on the defendant’s role in the charged crimeto urge the jury to vote for death, the defendant has a due processright to present and have the jury consider anything that might rebut or underminethe prosecution’s theory. (See, e.g., Green v. Georgia (1979) 442 U.S. 95, 97 [evidence that co-participant was the only actual killer “was highly relevant to a critical issue in the punishment phase”in part because prosecutor argued defendant was an actual killer; exclusion from penalty phase violated federal due process]; Rupe v. Wood (9" Cir. 1996) 93 F.3d 1434, 1440-1441 [polygraphtest to state’s chiefwitness was relevant to raise doubt as to prosecution’s theory regarding defendant’s role in crimes, exclusion at penalty phase violated federal due process right to present relevant mitigating evidence]; Mak v. Blodgett, supra,.970 F.2d 614, 622-623 [where defendant’srole in offense, or relative culpability, is relevant mitigating factor understate law, and where prosecutor makes it relevant through argument that defendant was ringleader, defendantentitled to present, and have jury consider, evidence relevant to that issue under the Eighth Amendment and the DueProcess Clause].) Nevertheless, the Court has held that trial courts do not have an absolute duty to instruct capital juries that they may considertheir lingering doubts in determining the appropriate penalty. (See, e.g., People v. Sanchez, supra, 12 Cal.4" at p. 77 [and authorities cited therein].) Although lingering doubt is highly relevant to the sentencing decision in California, the Court has reasoned that a special instruction ordinarily is not necessary because, as a general matter, the language ofthe standard instructions on factors (a) and (k) is broad enough to encompassthe concept oflingering doubt. (Ibid.; see also, e.g., People v. Johnson, supra, 3 Cal.4™ at p. 1252 [maj. opn.]; People v. Cox, supra, 53 Cal.3dat 438 U.S. 586, 694, 608; Bell v. Ohio (1978) 438 U.S. 637, 641-642.) 237 pp. 677-678; but see People v. Johnson, supra, 3 Cal.4™ at p. 1261, conc. opns. of Mosk,J., joined by Kennard,J. [if there is a reasonable likelihoodthat jurorswill not understand that they may entertain and act upontheir lingering doubts in penalty phase, court must provide lingering doubt instruction so as to avoid or correct the error]; People v. Cox, supra, at p. 678 and n. 20 [evidence may require appropriate lingering doubtinstruction upon request].) Put another way, the Court has held that nothing onthe face ofthe standardinstructionsprevents the jury from considering lingering doubt as a mitigating circumstance. At the same time, and as discussed in ArgumentIII, it is well settled that even where the court maynot be obligatedto instruct on a particular principle, onceit does so, it must do so accurately and completely. (See, e.g., People v. Montiel, supra, 5 Cal.4™ at p. 942; accord People v. Cummings, supra, 4 Cal.4™ 1233, 1337; People v. Malone, supra, 47 Cal.3d 1, 49; People v. Melton (1988) 44 Cal.3d 713, 768.) Hence, although a lingering doubtinstruction may not be required, ifthe court undertakesto instruct on lingering doubt, it must ensure that the instruction is accurate and complete. (Cf. People v. Livaditis (1992) 2 Cal.4® 759, 784 [court is not required to instruct on Davenport principle because languageofother instructions broad enough to cover]; People v. Melton, supra, at p. 768 [where court granted defense request to instruct on Davenport principle but modified the requested instruction, its modification was potentially misleading and thus erroneous].) If the court’s instructions, or a combination ofinstructions and argument, create a reasonable likelihood that the jury believed it was precluded from considering their lingering doubt in determining the appropriate penalty, then error has occurred under both state law and the federal constitution. (People v. Johnson, supra, 3 Cal.4™ at p. 1261, conc. opns. ofMosk, J., joined by Kennard,J. [if there is a reasonable likelihood that jurors will not understand that they may entertain and act upon their lingering doubtsin penalty phase, court must provide lingering doubtinstruction so as to avoid orcorrect the error]; see also,e.g., Estelle v. McGuire, supra, 502 U.S. at pp. 71-72; Boydev. California, supra, 494 238 USS.at p. 380; People v. Claire, supra, 2 Cal.4" at p. 663; People v. Brown,supra, 45 Cal.3d at pp. 1255-1256.) Unfortunately,this is just such a case. Cc. It Is Reasonably Likely That The Jurors Misunderstood That They Were Precluded From Considering And Giving Effect To Their Lingering Doubts That Matthew Was The Actual Shooter In Deciding Whether To Execute Him Or Spare His Life. As discussed in ArgumentI, while the evidence may have been strong that either Matthew or Michael was the actual shooter, the evidence pointing to one over the other as the actual shooter was astonishingly close. Although the jurors’ finding on the special circumstanceallegation reflects their determination beyond reasonable doubt that Matthew was the shooter, it is inconceivable that they did not have lingering doubts as to that determination. Pursuant to the above authorities, Matthew was entitled under state law and the Eighth and Fourteenth Amendments to have the jurors consider their lingering doubts that Matthew was the actual killer, and the substantial evidence supporting such doubts, in determining whetherhe should be put to death. Furthermore, Matthew had an independent dueprocessright to have the jury consider and give effect to their lingering doubts that he was the actual shooter in order to rebut the prosecution’s theory. Given the absence of any other aggravating evidence, the heart ofthe prosecution’s penalty phase strategy was to emphasize Matthew’srole and actions as the actual killer, to devastating effect. (RT 3652, 3884, 3886-3887, 3890, 3921, 3926-3928.) He referred to Matthew as the “marksman” whodeliberately shot as many people as he could before he ran out of ammunition, who would have shot and killed more people if he had not run out of ammunition, who placed the muzzle of his gun “right up against their bod{ies] and fired it “again and again,” and who “riddle[d]” Dewayne Arnold “up and down the side with the assault weapon and puts about, what six in him? What does that type of conductcall for?” (RT 3886-3887, 3921.) Hence, Matthew had 239 an independentdueprocessright to have the jurors consider and give effect to the substantial evidence guilt phase evidence that he was notthe actual shooter, which necessarily required them to consider their lingering doubts regarding their contrary guilt phase finding. (See, e.g., Green v. Georgia, supra, 442 U.S.at p. 97; Rupe v. Wood, supra, 93 F.3d at pp. 1440-1441; Mak v. Blodgett, supra, 970 F.2d at pp. 622-623; see also Simmonsv. South Carolina, supra, 512 U.S.at pp. 161- 163; Skipper v. South Carolina, supra, 476 U.S. at p. 5, n.1.) Consequently,trial counsel requested an instruction informingthe jury that it should considertheir lingering doubts as to several issues in determining the appropriate penalty. The requested instruction provided as follows: A juror who voted for conviction at the guilt phase maystill have a lingering doubt as to whether the defendant wasthe actualshooter, intendedto kill, or premeditated and deliberated. Such a lingering or residual doubt, although notsufficient to raise a reasonable doubtat the guilt phase, maystill be considered as a mitigating factor at the penalty phase. Each juror may determine whetherany lingering or residual doubtis a mitigating factor and assign whatever weight the juror feels is appropriate. [Citations.] (CT 755, emphasis supplied.) Asnoted in the Introduction, the prosecutor objected to the instruction. (RT 3558-3559.) Citing Sanchez, Johnson, and Cox, supra, the court noted thatit wasnot required to instruct “beyond Kaye[sic ~ factor (k)?].” (RT 3572-3573.) At the sametime,it recognized that it had the discretion to provide a lingering doubtinstruction on the question of “guilt.” (RT 3572-3574.) It agreed that a lingering doubt instruction would be appropriate in this case; but it intended to modify the requested instruction because the court was not “comfortable” with the instruction as worded. (RT 3572-3574.) Two court sessions later, the court presentedits drafted modification ofthe instruction to the parties. (RT 3699.) Accordingto the court’s modification, the instruction provided only: “it may be considered as a factor in mitigation if you have a lingering doubtas to the guilt of 240 the defendant.” (RT 3852, 3866; 3699; CT 783, emphasis supplied.) Trial counsel emphasized, “I still would request that it be given the way we requestedit, butfailing that, I’m satisfied with this, your honor.” (RT 3699.) While the court’s modification regarding lingering doubt as to “guilt” was arguably sufficient to encompassthe premeditation andintentto kill issues addressed in the requested instruction,it did not encompassthevital issue of lingering doubts as to Matthew’srole in the crimes — i.e., whether he was the “actual shooter.” (CT 755.) To the contrary, from this apparently limiting instruction and the arguments as a whole,there is a reasonable likelihoodthat the jurors believed that they were precluded from considering their lingering doubts as to that critical issue and thus did not consider or give effect to the evidence pointing to Michaelas the actual shooter and Matthew as the non-shooting aider and abettor. Hence, pursuantto the foregoing authorities, Matthew’s right to have the jurors considertheir lingering doubts regarding thatvital issue, guaranteed by state law andthe Fifth, Sixth, Eighth, and Fourteenth Amendments, was violated. 1. Theinstructions. Lingering doubtas to a defendant’s “guilt” ofmurderis often a question entirely distinct from lingering doubtas to his actual role in, or relative culpability for, the crime. (See,e.g., People v. Riel (2000) 22 Cal.4" 1153, 1209-1210.) Certainly, the two questions were distinct in this case, as the jury was well aware. During the guilt phase oftrial, the jurors were repeatedly told that the boys’ respective roles in the crimes — i.e., whether Matthew wasthe actual shooter — wereirrelevantto the question oftheir “guilt” ofthe charged crimes. The instructions and argumentsofall counsel repeatedly and explicitly informed the jurors that both the actual shooter and the non-shooting aider and abettor were “equally guilty” ofthe same crimes. (CT 694, 696; RT 3290-3291, 3298, 3308- 241 3309, 3312-3313, 3338, 3402, 3404, 3457.) Indeed, the jurors found them both “guilty” of the same crimes. It is true that the jurors also found the special circumstanceallegation to be “true” as to Matthew only and Matthew agrees thatthis reflects their determination under the beyond a reasonable doubtstandard that he was the actual shooter. Again, however, andas the jurors weretold, the “truth”ofthe special circumstance allegation was a question entirely separate from the boys’ “guilt.” (Cf. People v. Davenport (1995) 11 Cal.4™ 1171, 1215 [distinction between lingering doubt defense focusing on “special circumstance and not defendant’s guilt”].) Hence, Matthew submits that the jurors would correctly have understood that the term “guilt,” as used in the court’s modified lingering doubt instruction, meant exactly whatit had meant throughoutthe trial — Matthew’sguilt ofthe crimes, without regardto his actual role in them. As the modified instruction referred only to “guilt,” and not to Matthew’s actualrole, or to the “truth” of the special circumstance allegation, it simply did not encompass the relevant penalty phase question of lingering doubt as to Matthew’s role in the crimes, as addressed in the instruction as requested. At the very least, the court’s modification should have informedthe jurors that they would considertheir lingering doubts not only as to “guilt,” but also as to the truth ofthe special circumstance allegation. (See People v. Griffin (2004) 33 Cal.4™ 536, 589 [approving suchan instruction]; People v. Maury (2003) 30 Cal.4™ 342, 436 [same]; People v. Cain (1995) 10 Cal.4” 1, 65-66 [same].) The distinction between lingering doubt as to guilt and lingering doubtas to the defendant’s actual role or relative culpability is a critical one. (Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty (1998) 83 Cornell L. Rev. 1557, 1577-1583 [results of empirical study revealed that “[w]hile lingering doubt concerning the defendant's actual innocence appearedto play a very infrequent role in influencing the jury's penalty decision, lingering doubt seemed to play a far more significant role when the 242 doubt involved the defendant's level of participation in the murder;”jurors did not consider whether there were lingering doubts as to guilt in penalty phase and expressed antipathy toward defendants who ask them to do so; in contrast, jurors were very receptive to considering lingering doubtsas to the defendant’s actual role in the crimes and such cases frequently resulted in life sentences].) Certainly, there is no doubtthat the distinction was vital in this case. Based upon the evidence, particularly when combined with the incomplete and flawed guilt phase instructions regarding the elements ofmurder and attempted murder (Arguments II-IV, above),it is entirely possible — indeed probable — that the jurors had no doubt that Matthew was “guilty” of all ofthe crimes, yet still had deeply troubling lingering doubts that he was the actual shooter. (Cf. Tarver v. Hopper, supra, 169 F.3d at p. 716 [emphasizing significance of lingering doubt at penalty phase where, “despite overwhelming evidence that (defendant) or his associate . . . actually killed (the victim), very little evidence made (defendant) a better candidate than (his associate) to be found to be the actual killer”].) And, as the jurors’ verdicts reveal, their determination of the penalty turned not on the boys’ “guilt,” but rather on their respective roles in the shooting. Apparently having found that only the actual shooterintended to kill, they not only determinedthat death was not an appropriate punishment for thenon-shooting aider and abettor, but also that he was not even eligible for the death penalty. The question then becomes whetherit is reasonably likely that the jury understoodthat its consideration of lingering doubt was limited to the question of Matthew’s “guilt” of the charged murders and attempted murders and notas to any other issue. In other words, the question is whether it is reasonably likely that the jurors believed they were precluded from considering their lingering doubts that Matthew was the actual shooter, and the substantial evidence supporting such doubts, as a basis for a sentence less than death. (See People v. Johnson, supra, 3 Cal.4"™ at p. 1261, conc. opns. ofMosk,J., joined by Kennard, J.; see also, e.g., Estelle v. McGuire, supra, 502 U.S. at pp. 71-72; Boyde v. California, supra, 494 243 USS.at p. 380; People v. Claire, supra, 2 Cal.4™ at p. 663; People v. Brown,supra, 45 Cal.3d at pp. 1255-1256.) The answeris yes. It is axiomatic that lay jurors apply logic and commonsenseto their reading of instructions. (See, e.g., Boyde v. California, supra, 494 U.S.at p. 381; People v. Coddington, supra, 23 Cal.4" at p. 594.) The maxim expressio unius est exclusio alterius, or the expression of one thing is the exclusion of another,is “a productof logic and common sense” (Alcaraz v. Block (9™ Cir. 1984) 746 F.2d 593, 607-608; accord, e.g., People v. Superior Court (Romero) (1996) 13 Cal.4" 497, 522) and a “deductive concept commonly understood” (People v. Castillo, supra, 16 Cal.4™ at p. 1020, conc. opn. ofBrown,J.). The maxim holds that where specific itemsarelisted, it is assumed that the omission of items similar in kind is intentional and the omitted items are therefore excluded. (Ibid.) Courts consistently apply the maxim in resolving how lay jurors would understand a particular instruction, whether explicitly (see, e.g., People v. Castillo, supra,at p. 1020; People v. Watson (1899) 125 Cal. 342, 344) or implicitly (see,e.g. Hitchcock v. Dugger (1987) 481 U.S. 393, 397 [instruction specifying factors jurors “may”consider necessarily implied that it “may not” consider factors that were not mentioned]; People v. Dewberry (1959) 51 Cal.2d 548, 557 [instruction that doubts between greater and lesser offenses are to be resolved in favor oflesser specified first and second-degree murder but did not mention second-degree and manslaughterleft “clearly erroneous implication”that rule did not apply to omitted choice]; People v. Salas (1976) 58 Cal.App.3d 460, 474 [instruction on circumstantial evidence specifically directed to intent element of one charge created reasonably probability that jurors understood omission of second charge to be intentional and thus that circumstantial evidence rules did not apply to second charge].) Here, the instruction on lingering doubt wasspecifically directed to only one issue — the question ofMatthew’s “guilt” ofthe murders and attempted murders. Applying a commonsense readingto that instruction,it is reasonably 244 likely that the jurors understood that the exclusion of other issues to which they might have had lingering doubts wasintentional and meaningful. In other words, it is reasonably likely that the jurors understoodthat their consideration of lingering doubt waslimited to the question ofMatthew’s “guilt” and not to any other questions. Hence, it is reasonably likely that the jurors understood the instruction to mean that they could not considertheir “lingering doubts”as to whether Matthew was the actual shooter — an issue they understood to be irrelevant to the question ofhis “guilt” — in violation of state law and Fifth, Sixth, Eighth, and Fourteenth Amendments. (See, e.g., People v. Johnson, supra, 3 Cal.4™ at p. 1261, conc. opns. ofMosk,J., joined by Kennard, J.; Green v. Georgia, supra, 442 U.S. at p. 97; Rupe v. Wood, supra, 93 F.3d at pp. 1440-1441; Mak v. Blodgett, supra, 970 F.2d at pp. 622-623.) Unfortunately, the otherinstructions did nothing to correct or nullify the misleading nature of the instruction. It is true that the jury was instructed on factors(a), (j), and (k) with CALJIC No. 8.85 andthat this Court has held that such instructions generally allow consideration of lingering doubt as a mitigating factor, notwithstanding their failure to specifically address lingering doubt. (CT 782; see, e.g., People v. Brown,supra, 31 Cal.4™ at pp. 567-568.)** However,it is 32 The court instructed the jury with a modified version ofCALJIC No. 8.85 (the modification appearsin italics) as follows: In determining which penalty is to be imposed on the defendant, you shall considerall ofthe evidence which has been received during any part ofthe trial ofthis case except as you may be hereafter instructed. You shall consider, take into account and be guided by the following factors, if applicable: (a) The circumstances ofthe crimes ofwhich the defendant was convicted in the present proceeding and the existence of any special circumstance foundto be true. Aspart ofthe circumstances ofthe offense underfactor A, you may also consider the testimony offered in this penaltyphaseportion ofthe trial concerning the impactofthe crimes on thefamily andfriends ofthe victim. 245 well recognized that, in construing how lay jurors would understand a series of instructions, “the more specific charge controls over the general charge.” (LeMons v. Regents ofUniversity of California (1978) 21 Cal.3d 869, 878 and n.8; accord, e.g., Francis v. Franklin (1985) 471 U.S. 307, 316-320 [viewing instructions as a whole, where reasonable juror could have understood specific instruction as creating unconstitutional burden shifting presumption with respect (b) The presence or absenceofcriminal activity by the defendant, other than the crimes for which the defendant has beentried in the present proceedings, which involvedthe use or attempted use of force or violence or the express or implied threat to use force or violence. (c) The presence or absenceofany prior felony conviction, other than the crimes for which the defendant has beentried in the present proceedings. (d) Whetheror not the offense was committed while the defendant was underthe influence of extreme mental or emotional disturbance. (e) Whetheror not the victim was a participant in the defendant's homicidal conduct or consented to the homicidalact. (f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct. (g) Whether or not the defendant acted under extreme duress or under the substantial domination ofanother person. (h) Whetheror notat the time ofthe offense the capacity ofthe defendant to appreciate the criminality ofhis conduct or to conform his conduct to the requirements oflaw was impairedas a result of mental disease or defect or the effects of intoxication. (i) The age ofthe defendant at the time ofthe crime. (j) Whetheror not the defendant was an accompliceto the offense andhis participation in the commission ofthe offense was relatively minor. (k) Anyother circumstance which extenuates the gravity ofthe crime even though it is not a legal excuse for the crime and any sympathetic or other aspect ofthe defendant's character or record as a basis for a sentence less than death, whetherornot related to the offense for which heis on trial. You must disregard any jury instruction given to you in the guilt or innocencephaseofthistrial which conflicts with this principle. 246 to element, more general instructions on prosecution’s burden ofproofand presumption of defendant’s innocencedid notclarify correct law]; People v. Easley (1983) 34 Cal.3d 858, 877-879 [where one instruction erroneously and specifically told jurors not to consider sympathy, provision ofmore general instruction — former CALJIC No. 8.84.1 — directing jurors to consider “any other circumstance that extenuates the gravity of the crime” did not cure error]; Sandoval v. Bank ofAmerica (2002) 94 Cal.App.4 1378, 1387 and n.8; Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4" 374, 395; People v. Stewart (1983) 145 Cal.App.3d 967, 975.) Here, of course, the only instruction specifically directed to lingering doubt was the court’s misleading instruction. “It is particularly difficult to overcomethe prejudicial effect of a misstatement when the bad instruction is specific and the supposedly curative instruction is general.’ [Citation.]” (Buzgheia v. Leasco Sierra Grove, supra, at p. 395.) In determining the scope ofthe lingering doubts that they could consider, it should be presumed that the jurors took their guidance from the specific lingering doubt instruction. While the instruction on factor (j) (whether or not the defendant was an accomplice or minorparticipant) was closerto the critical lingering doubt issue than the general instructions on factors (a) and (k), it was nevertheless insufficient to remedy the defect in the specific lingering doubt instruction. The jurors were told to consider only those factors that were “applicable.” (CT 782, emphasis supplied.) Onits face, the instruction alerts the jurors that it may contain inapplicable factors. (See, e.g., People v. Ghent, supra, 43 Cal.3d at pp. 776-777.) Indeed, the instruction listed obviously inapplicable factors, such as factor (b) (other violent criminalactivity). (CT 782.) Without more, factor (j) would clearly appear to be inapplicable in this case, since it was inconsistent with the jurors’ guilt phase finding on the special circumstance allegation. Under the circumstances, the only way that the lay jurors would have understood that factor (j) was potentially applicable would have been through understandingthat they 247 could consider their lingering doubts overtheir contrary guilt phase finding. Indeed, the seeming inapplicability of factor (j) was reinforced when the prosecutor opened his summation by emphasizing,“There’s no longer a question about whodid what to who[m], it is not about that. That’s behind us.” (RT 3871.) Certainly, defense counsel never even mentioned factor (j) or explained its connectionto the critical lingering doubt issue presented by the case and omitted from the court’s instruction. At the very least, the instructions as a whole were potentially ambiguous and misleading. Ofcourse, as previously discussed, even instructions that “are not crucially erroneous, deficient or misleading on their face, may become so under certain circumstances.” (People v. Brown, supra, 45 Cal.3d at p. 1255.) When considered in conjunction with the prosecutor’s arguments, there is a reasonable likelihood that the jurors understood that it would be improper for them to considertheir lingering doubts as to Matthew’sactualrole in the crimes in determining whether to execute him. (See,e.g., People v. Claire, supra, 2 Cal.4™ at p. 663; People v. Brown, supra, 45 Cal.3d at p. 1255; People v. Lucero, supra, 44 Cal.3d at p. 1031; Hitchcock v. Dugger, supra, 481 U.S. at pp. 397-398 [from instruction and prosecution arguments, jurors likely understoodthat its consideration ofmitigating factors was limited to thoselisted in instruction and no others].)*° 33 Any argument that counsel waived Matthew’s right to challenge the court’s erroneous modification should be rejected. Counsel effectively objected to the modification when the court presented it and counsel reiterated his request for the instruction in its unmodified form. (RT 3699.) Furthermore, as set forth in the body ofthe argument, the court’s modification affected Matthew’s substantial rights and hence is reviewable even in the absence ofan objection. (See Pen. Code § 1259 and Argument IV-D, above.) In any event, as explained in the next section, whatever might be said about the appropriateness ofthe instruction in isolation and counsel’sfailure to objectto it, it is clear that subsequent events — namely, the prosecutor’s argument — created a reasonable likelihood that the jurors would misunderstand the law. In light ofthose subsequent events, the court had an independentduty to clarify the matter. (See, e.g., People v. Johnson, supra, 248 2. The arguments. In his argument, Matthew’s counsel addressed the relevance oflingering doubt in general and specifically urged the jurors to consider their lingering doubts that Matthew wasthe actual shooter, rather than the non-shooting aider and abettor, in deciding whether he shouldlive or die. (RT 3908-3910.) For his part, the prosecutor did not acknowledge that the jury could consider lingering doubt, but argue that there was noneorthatit should be givenlittle weight — arguments that he made with respect to other mitigating circumstances and which were entirely appropriate.** To the contrary, he repeatedly and vehemently arguedthat it would be inappropriate for the jurors to “even consider”their lingering doubts and to “second-guess” their decision and that it was grossly inappropriate for Matthew’s counsel to ask them do so. (See, e.g., People v. Robertson (1982) 33 Cal.3d 21, 57-58 [prosecutor’s argument regarding consideration of sympathy was “seriously misleading” where he “did not limit his argumentto factually unsupported sympathy, but repeatedly told the jurors that it should not consider. . . ‘sympathy factors’” because they were inappropriate to its decision]; compare, e.g., People v. Cox, supra, 53 Cal.3d at p. 675 [holding refusal to provide instruction on lingering doubtas to role was noterror because, inter alia, “the People v. Johnson, supra, 3 Cal.4™ at p. 1261, conc. opns. ofMosk,J., joined by Kennard, J. [“the court is obligated to give an express instruction (on lingering doubt) when there is a reasonable likelihood that, in the absence of such an advisement, the jury will labor under a misconception in this regard. A reasonable likelihood would compela finding of error. (Citation). Error, of course, must be avoided.”’].) For instance, the prosecutor appropriately acknowledgedthat it was appropriate for the jurors to consider the evidence that Matthew had been a motivated and well-behaved studentas a child, but argued that it should be given little weight. He argued, “I mean, the law hasto allow you to consider that sort of thing, but again, don't forget the instruction, you assign whatever moral, sympathetic weight you feel the proofis entitled to, ifyou accept it.” (RT 3926.) 249 prosecutor never suggested that it was not a relevant consideration ifthe jury found it supported by the evidence”].) Asnoted above, the prosecutor opened his summation by emphasizing that “There’s no longer a question about who did what to who[m],it is not aboutthat. That’s behind us.” (RT 3871.) Anticipating the defense’s position to the contrary, he argued,“I like to refer to it not as lingering doubt, but malingering doubt. To even consider somethinglike that is an insult to the — not only the burden ofproof built into the system, but the careful and attentive way that you approached your jobin thefirst part ofthe case, and it is an affront to the decision you made.” (RT 3889-3890.) He consistently referred to defense counsel’s position that Michael was the actual shooter as a guilt phase tactic that “didn’t work” and was no longer relevant. (RT 3880-3881, 3888-3889.) Indeed, the prosecutor closed his summation with an impassioned entreaty to the jurors to consider Matthew’s inappropriate invitation to “second-guess”their guilt phase determination that he was the actual killer as aggravating evidence, because it revealed the absence of even “a shred ofremorse” and a young man undeserving oftheir mercy: Finally, ifyou want the easy wayout, look no further than lingering doubt. All you have to do is second guess the decision you’ve already been put through and usethat as a reason not to go forward andfinish the job. . . .The defense in this case, again, blaming the brother;that failing, I wasn’t there; that failing, blaming the mother. Now they wantto put a guilt trip on you and making youfear that ten years from now youwill second guessthe decision you made and you will feel horrible . .. Does he deserve your mercy? This picture that’s been painted ofhim as a caring, loving, quiet, never ever fought with any ofhis brothers or sisters . . . .But does he deserve your mercy because that’s the way he’s been portrayed when he was young? Well, someonethat was really that way, they would show remorse. Remorse would be apparent. They would feel bad about what they had done.. . . If time goes by and they apologize, you believe them, they are not just saying it, you believe he is sorry, you know,that’s 250 the way for youto exercisea little mercy of forgiveness on your own. Do you havean inkling ofthat here? Has anyhint ofthat been extended here? He’sstill claiming he wasn’t there and askingyou to second guess your decision, deciding that he was. Is that remorse? There’s not a shred of remorse, and without remorse, you’re supposed to extend mercy, forgiveness in the face ofthat? Mercy should be extended out of strength, not weakness. If it is extended out ofweakness,it is not mercyatall, by definition. So before you take that way out, think about why you’re doingit. (RT 3926-3928.) Hence, unlike the prosecutor’s arguments relating to other mitigating circumstances, not oncedid the prosecutor acknowledgethat it was appropriate to consider lingering doubts; not only would it be inappropriate to consider lingering doubt, but Matthew’s requestthat the jurors do so should be held against him as evidencing an utter lack ofremorse. (Cf. People v. Gonzalez (1990) 51 Cal.3d 1179, 1232 [improperto cite “a proffered defense as proof of remorselessness”’]; People v. Coleman (1969) 71 Cal.2d 1159, 1168-1169 [improperto argue defendant’s failure to admit guilt demonstrates lack ofremorse]; Zant v. Stephens (1983) 462 U.S. 862, 885 [improperto attach “aggravating label”to circumstance “that actually should militate in favor of a lesser penalty"].) Hence, the prosecutor both opened andclosed his arguments to the jury with an increasingly scathing attack on the propriety of “even consider[ing]” lingering doubt that Matthew was the actual killer. Given the prosecutor’s argument, the trial court should have instructed the jury, as counsel had requested,that it was in fact entirely appropriate for the jurors to considertheir lingering doubt as to whether Matthew was the actual killer. Absent that instruction, the combinedeffect ofthe apparently limiting lingering doubtinstruction and the prosecutor’s argumentcreated a reasonablelikelihoodthat the jurors labored under a misconceptionin this regard. (See, e.g., People v. Johnson, supra, People v. Johnson, supra, 3 Cal.4™ at p. 1261, conc. opns. ofMosk, J., joined by Kennard,J. [“the court is obligated to give an 251 express instruction (on lingering doubt) whenthereis a reasonablelikelihoodthat, in the absence of such an advisement, the jury will labor under a misconception in this regard. A reasonable likelihood would compela finding of error. (Citation). Error, of course, must be avoided.”].) It is no answerto say that the effect ofthe misleading instruction and the prosecutor’s similarly misleading and impassioned argument wasnullified by defense counsel’s argumentthat the jury could considertheir lingering doubts that Matthew wasthe actual shooter. As discussed in ArgumentIII-E, above, it is well recognized that when the defense and the prosecution argue two competing interpretations ofthe law and the instructionsfail to guide the jurors as to which interpretation is the correct one, it is more than reasonably likely that the jury will accept the prosecution’s. (See, e.g., Hitchcock v. Dugger, supra, 481 U.S. at pp. 397-398 [jury instruction listed mitigating factors to be considered; defense counsel argued mitigation not limited to listed factors; prosecutor argued to the contrary; likely jurors understood consideration limited to listed factors]; United States v. LaPage, supra, 231 F.3d 488, 492 [in contrast to the prosecutor, “the jury understands defense counsel’s duty of advocacy and frequently listens to defense counsel with skepticism”]; People v. Taylor, supra, 197 Cal.App.2d at p. 383; People v. Brophy, supra, 122 Cal.App.2d at p. 652; People v.Talle, supra, 111 Cal.App.2d 650, 677.) As the Court has recognized,this is particularly true where,as here, “the prosecutor [does] not adopt or endorse the view expressed by defense counsel,” but rather criticizes it. (People v. Edelbacher, supra, 47 Cal.3d at p. 1039 [despite defense counsel’s “thorough and forceful explication” ofthe correct law, prosecutor’s contrary argument and potentially misleading instruction created reasonable likelihood jurors misunderstood the law]; compare People v. Johnson, supra, 3 Cal.4" at pp. 1261-1262, conc. opn. ofMosk,J., with Kennard, J., concurring [concurring in majority opinion that refusal to provide lingering doubt instruction wasnoterror in part because defense counsel arguedits relevance and “the People madeno suggestion that such doubt was in any way 252 immaterial”]; People v. Cox, supra, 53 Cal.3d at p. 675 [holding refusal to provide instruction on lingering doubt as to role wasnoterror in part because “the prosecutor never suggested that it was not a relevant consideration if the jury found it supported by the evidence”’].) Indeed, objective evidence in the record clearly indicates that this jury viewed the representations of this defendant’s attorney with skepticism. As a preliminary matter and as discussed in Argument VI, above, the prosecutor explicitly told the jurors that they could not trust Matthew’s defense counsel because he hadlied to them before. For instance, in his summation, the prosecutor purported to quote from Matthew’s counsel’s guilt phase argumentto the jury suggesting that one ofthe party guests may have “planted” Rebecca Souza’s purse in Esther Dale’s trunk after the shooting. (RT 3887.) In truth, the argumentthe prosecutor quoted at length was the argument ofMichael’s counsel, not Matthew's counsel. (RT 3887, quoting from RT 3372.) The prosecutor then embarked on a lengthy, scathing attack on Matthew’s counsel as being a liar for supposedly having madethat argument: “That’s the argument that [Matthew’s counsel] got up and madeto you. .. . Arguing this to youall the time when he knowsthatifthis thing goes to penalty phase, he’s all prepared to put on a woman I was not aware of until the penalty phase, May Ruth Underwood. Remember the woman that camein, she’s the one that the defense put on to say that she had to give Rebecca 2 ride home 36 times because she locked her purse and her keysin Esther’s trunk. Andyetit is the same guy arguing to you in the guilt phase: how do we know that’s how it happened? You know,think aboutthings like that. .. . Remember that remember Mr. Costain’s argument to you in the guiltpart when he gets up here and argues lingering doubt as a reason to imposethe life withoutpossibility ofparole instead ofthe death penalty.” (RT 3887-3889, emphasis supplied; see also RT 3887 [castigating Matthew’s counselfor allegedly arguing in guilt phase that Joyce Arnold/Victoria Gonzalez’s testimony wasincredible whenin truth the argument from which prosecutor quoted was made by Michael’s counsel at RT 253 3370]; RT 3880-3881, 3886-3887 [suggesting verdicts demonstrate that counsel lied in defending Matthew]; RT 3916-3918 [“Mr. Costain and Ms. Campos want to create divisiveness” in order to obtain a mistrial and are “pandering to racism”); RT 3921 [castigating counsel for “manufactur[ing]” “phony mitigation”]; RT 3918 [“Mr. Costain’s” argumentis an “attempt to make your task seem moredifficult than it is”].) Asfurther discussed in Argument VI, the prosecutor’s argumentthat the jury should not believe Matthew’s counsel hadits desired effect. In their arguments, both ofMatthew’s attorneys informedthe jurorsthat, regardless of whataction they took in the penalty phase, it would have no effect on their guilt phase verdicts ensuring that Matthew would never be released from prison. (RT 3894, 3904.) Nevertheless, during its penalty phase deliberations, the jurors submitted a written question to the court inquiring into the consequences ofjury deadlock and specifically whether deadlock would result in reversal of their guilt phase verdicts. (RT 3933; CT 755; see also RT 3934 [in discussing response to jury inquiry, both defense counsel reminded the court that they had answeredthis question in their summations].) In other words, the jury was unwilling to accept defense counsel’s representations ofthe law without verification from thetrial court. Onthis record, it simply cannot be presumedthat the jurors accepted defense counsel’s representation that they could and should considertheir lingering doubts that Matthew wasthe actual killer in deciding his fate. Finally, any remaining question that the lay jurors did not consider and give effect to their lingering doubts that Matthew was the actual killer is surely put to rest by the trial judge’s own failure to do so. In ruling on the application to modify the death verdict (Pen. Code § 190.4, subd. (e)), the judge notedthatit agreed with the jury’s assessment that Matthew wasguilty ofthe underlying crimes andthe truth ofthe special circumstance allegation “beyond a reasonable doubt.” (RT 3973.) The judge then specifically addressed and discussed the weightofall ofthe relevant mitigation, including Matthew’sage,his troubled 254 childhood, and his lack ofa record. (RT 3976-3977.) The judge also specifically noted the absence of any other relevant mitigation. (RT 3977-3978.) Strikingly absent from the court’s discussion was any acknowledgmentofindisputable lingering doubt that Matthew wasthe actual shooter, or the substantial evidence pointing to Michael. (RT 3975-3978.) Given that the judge was careful to note whatconsiderationsit did take into account, it seems clear that lingering doubt wasnot one ofthem. (Cf. Smith v. McCormick (9" Cir. 1990) 914 F.2d 1153, 1165 [courts’ failure to refer to letters as part ofdefendant’s mitigating evidence tended to show that they did not consider that evidence].) If the trial judge failed to even acknowledge those doubts and the substantial evidence supporting them, then it can safely be assumedthat the lay jurors also failed to do so. Forall ofthese reasons,it is reasonably likely that the jurors misunderstood that they were precluded from considering or giving effect to their lingering doubts that Matthew wasthe actual shooter and the substantial evidence supporting such doubts. Becausestate law entitled Matthew to have the jury consider those doubts in determining the appropriate penalty, because this was a significant componentto his penalty phase defense, and becausehis actual role in the shooting was constitutionally relevant to the penalty determination, the error violated both state law and Matthew’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments pursuantto the authorities discussed in part B, above. D. Reversal Is Required. Where,as here, error of federal constitutional dimension has occurred, reversal is required unless the Court determines that it was harmless beyond a reasonable doubt. (Sullivan v. Louisiana, supra, 508 U.S.at p. 279; Yatesv. Evatt, supra, 500 U.S. at p. 404; Chapman v. California, supra, 386 U.S.at p. 24; People v. Lucero, supra, 44 Cal.3d 1006, 1032.) For state law violations in the 255 penalty phase ofa capital trial, reversal is requiredifthere is any “reasonable possibility” that the verdict would have been differentin the absenceoftheerror. (People v. Brown (1988) 46 Cal.3d 432, 447-448.) Reversal is required underthis standardifthere is a reasonable possibility that even a single juror might have reached a different decision absent the error. (People v. Ashmus (1991) 54 Cal.3d 932, 983-984 [“‘we must ascertain how a hypothetical ‘reasonable juror’ would have,or at least could have, been affected”].) Given that the jurors’ penalty determination is an individualized, normative one, and the need for heightened reliability in capital cases, the “reasonable possibility” standard is “more exacting” than the Watson standard for reversal applied to guilt phase errors. (People v. Brown,supra, 46 Cal.3d at p. 447; see also People v. Ashmus, supra, 54 Cal.3d at p. 965 [equating reasonable possibility standard under Brown with the federal harmless beyond a reasonable doubt standard].) Undereither standard, it is clear that the penalty judgment mustbe reversed. Once again, given the evidence outlined in ArgumentI, any rational human being who heard that evidence would — at he very least — have had lingering doubts that Matthew, rather than Michael, was the actual shooter. Lingering doubt that a capital defendant wasthe actual killer is powerful mitigation when the jury is permitted to considerit. (See, e.g., Enmund v. Florida (1982) 458 U.S. 782, 794 [discussing reluctance ofjuries to impose death penalty for accomplice liability]; Tarver v. Hopper, supra, 169 F.3d at pp. 715-716 [and empirical studies discussed therein]; Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty, supra, 83 Cornell L. Rev. at pp. 1577- 1583.) Certainly, the jury in this case considered the identity ofthe actual shooter to be an issue of enormous importance. Again, while the jurors found both the shooter and non-shooting aider and abettor equally “guilty” ofthe crimes, their verdicts reveal a dramatic difference in their assignmentofthe participants’ relative culpability. The record thus amply demonstrates the great weight the jurors would have affordedtheir lingering doubts as to Matthew’srole in the 256 shooting had they understood they could do so. Given the extraordinary closeness of the penalty phase evidence, there is more than a “reasonable possibility” (People v. Brown, supra, 46 Cal.3d at p. 448) that a juror “could have” (People v. . Ashmus, supra, 54 Cal.3d at pp. 983-984) voted differently had the jurors understood that they could consider those doubts in determining the appropriate penalty. The prosecution’s only aggravating evidence related to the circumstances of the offense — the bare facts of the underlying convictions themselves, its theory that Matthew was the actual shooter, and the impact ofthe crimes on the victims and their families. (See, e.g., People v. Crandell, supra, 46 Cal.3d at pp. 885-886 [penalty phase error required reversal where prosecution’s aggravating evidence, based solely on commission ofunderlying murders, kidnapping, and assault with attempt to commit rape and multiple murder special circumstance, was “not overwhelming” and crimes were “arguably an isolated and aberrant incident”; Belmontes v. Woodford, supra, 350 F.3d at pp. 906-907 [prosecution’s aggravating evidence was “not strong” where based solely on commission of underlying crimes]; Bean v. Calderon (9Cir. 1998) 163 F.3d 1073, 1081, cert. denied 528 U.S. 922 (19990 [aggravating evidence was “scant” where based solely on commission ofunderlying crimes — twofirst degree murders and assault with deadly weapon on third person in two separate incidents — along with prior felony conviction and prior violent assault]; Mak v. Blodgett, supra, 970 F.2d at pp. 619-622 [penalty phase error required reversal despite defendant having been convicted ofthirteen counts of aggravated first-degree murder].)°5 While the prosecutor argued that the sheer numberofcrimes was aggravating, the circumstances ofthe crimes werealso highly mitigating, as 35 Furthermore, as discussed in Argument VIII-C, below, much ofthe prosecutor’s argumentregarding the aggravating circumstancesofthe crimes either misstated the evidence presented or purported to refer to evidence that was never admitted. 257 thoroughly discussed in Arguments IT and III, above. Matthew was not motivated by a desire for moneyorto inflict suffering. He and his brother were motivated by what their own mother represented to have been a brutal assault upon her and by her “hysterical” entreaties to confront her attackers and retrieve her belongings. (RT 2096-2097, 2099, 2101, 2106-2108, 2150, 2155-2156, 2160-2161, 2193- 2194, 2203-2204, 2214, 2219.) Nor was Matthew the ringleader. As the prosecutor recognized, the testimony ofthe percipient witnesses established that his older brother, Michael, was the “leader” and the “one in command”(RT 3292, 3298), which was consistent with the testimony ofthe boys’ family members and friends who described Michaelas the leader and Matthew as his “shadow” (RT 3612-3613, 3650, 3755, 3779). (See, e.g., Smith v. Singletary (11™ Cir. 1995) 61 F.3d 815, 817 [evidence defendant acted under influence of more dominant accomplice relevant mitigation].) Furthermore, as discussed in the preceding arguments, the jury’s determination that Michael, the leader ofthe confrontation, did not intend to kill reveals several significant mitigating findings. The verdicts revealthat the jurors convicted Michaelofthe crimes as the natural and probable consequences of aiding and abetting an assault with a firearm. (CT 697.) In other words, the jurors found that the boys planned to commit an assault with a firearm, not to kill. (See, e.g., Belmontes v. Woodford, supra, 350 F.3d at pp.906-907 [instructional error in penalty phase prejudicial in light of “substantial mitigating evidence” which included, inter alia, that murder wasnot pre-planned].) The shooter formed the intent to kill only as an immediate response to the violent chaos that erupted when Dewayne Arnold physically confronted Michael. (See, e.g., Pen. Code § 190.3, subd. (e).) The shooting was committed in an explosion of violence, in response to a suddenly developing situation while both boys were in a state of fear, anger, panic, and intense emotional disturbance. (See, e.g., Pen. Code § 190.3, subds. (d), (f).) Neither Matthew norhis brother tortured anyone, raped anyone, or inflicted or attempted to inflict any degree of suffering greater than that inherentin 258 the shooting itself. (See, e.g., Jackson v. Herring (1 1" Cir. 1995) 42 F.3d 1350, 1369 [crime mitigating where defendant committed murderin an “irrational and sudden temper,” as compared to “many death penalty cases (which) involve murdersthat are carefully planned or accompanied bytorture, rape, or kidnapping”].) Indeed, as discussed in ArgumentsII and IV, the state of the evidenceraised deeply troubling questions as to whetherall ofthe victims were even shotintentionally. (See, e.g., Jackson v. Calderon (9™ Cir. 2000) 211 F.3d 1148, 1164, cert. denied 531 U.S. 1072 (2001) [emphasizing weak nature of evidence to prove elements of offense in guilt phase in concluding penalty phase error prejudicial].) Finally, Matthew voluntarily surrendered to police only a few days after the shooting. (RT 3053-3054; see, e.g., Williams v. Taylor (2000) 529 U.S. 362, 398 [surrenderingto police is mitigating].) Other than his characterization ofMatthew as the actual shooter, the prosecutor offered absolutely no aggravating evidencerelating to Matthew himself. (See, e.g., Wiggins v. Smith (2003) 539 U.S. 510, 535, 537-538 [state’s case for death weak where there were no aggravating factors in defendant’s background].) The mitigating evidence relating to Matthew, on the other hand, wasextraordinarily strong. Matthew had absolutely no record of any crimesor arrests and no history of violence. (RT 3620, 3639, 3651-3652, 3665, 3672-3673, 3685, 3688, 3835; see, e.g., People v. Lucero, supra, 44 Cal.3d at p. 1032 [penalty phase error required reversal in light of substantial mitigating evidence that, inter alia, defendant had no history of criminal violence or felony convictions]; compare James v. Borg (9 Cir. 1994) 24 F.3d 20, 27 [“although only 18 yearsold, petitioner had already amassed a lengthy criminal record”].) To the contrary, the uncontroverted evidence showed that Matthew had always had an unusually gentle nature and that the crimes were an isolated and aberrant incident wholly out ofcharacter for him. Several witnesses reported that Matthew had never beenin any kind of a fight — even with his siblings and even when bullied — and that they had never even seen 259 him becomeangry or act aggressively. (RT 3620, 3639, 3651-3652, 3665, 3672- 3673, 3685, 3688, 3757-3758, 3770, 3778, 3786, 3835.) Moreover, Matthew was only 18 years old when the crimes were committed — barely more than a child and barely eligible for the death penalty at all. (RT 2180; Probation Report at p. 1; see, e.g., Johnson v. Texas (1993) 509 U.S. 350, 367 [and authorities cited therein-- youth relevant mitigating factor]; Pen. Code § 190.5, subd. (a) [death penalty cannot be imposed on defendants under 18 years old].) As the United States Supreme Court has consistently recognized,“a lack ofmaturity and an underdeveloped sense ofresponsibility are found in youth more often than in adults and are more understandablein the young. These qualities often result in impetuousandill-considered actions and decisions.” (Johnson v. Texas, supra, at p. 367.) Even for an 18-year-old, Matthew was unusually inexperienced and immature. (See, e.g., Eddings v. Oklahoma, supra, 455 U.S. 104, 116 [evidence of teenage defendant’s emotional development below chronological age highly relevant mitigation]; Bell v. Ohio (1978) 438 U.S. 637, 639-642 [defendant’s “emotional immaturity” constitutionally relevant mitigation].) Matthew had never had a girlfriend. (RT 3620, 3650.) He had never had a driver’s license. (RT 3620.) His teenage years were unmarked by the usual hallmarks of adolescent rebellion. In addition to his unusually pacifistic nature, friends and family members never saw any signs that he had experimented with drugsor alcohol. (RT 3658, 3735, 3840.) He spent many Saturday nights with his grandmother and other seniorcitizens rather than with boys andgirls in his peer group. (RT 3760- 3762.) Indeed, other than absencesresulting from his chaotic family life, he had never even been in any trouble at school. (RT 3710, 3716-3717, 3730, 3732-3734, 3744-3745, 3749, 3819, 3822.) Former teachers, family members, friends, and other acquaintances consistently described him as unusually meek, shy, and obedient, particularly comparedto others his age. (RT 3639, 3746-3747, 3657- 260 3658, 3672-3673, 3679, 3685, 3720, 3732, 3737-3738, 3745-3747, 3786,3828- 3829.) While Matthew’s family was a loving one for the most part, his childhood (up to and including the time ofthe crimes) was marked by extremeinstability and his alcoholic mother’s erratic behavior and neglect. (RT 3610, 3613-3617, 3619- 3620, 3686-3687, 3756, 3836-3838.) For instance, at one point, his mother “disappeared” with the children for a year before their father was able to find them. (RT 3616, 3756.) At another, their mother abandoned the children when they werevisiting their father for the weekend. (RT 3616-3617.) At yet another, she moved outofstate with all ofher children except Matthew, whom sheleft behind. (RT 3613-3614.) Of course, these events deeply affected Matthew. (RT 3613-3617; see, e.g., Wiggins v. Smith, supra, 539 U.S.at p. 534 [difficult childhood and “alcoholic, absentee mother”part of “powerful” mitigating evidence]; Eddings v. Oklahoma,supra, 455 U.S. at p. 115 [where defendant teenagerat time of crime, evidence of “difficult family history”is “particularly relevant” mitigation]; Jackson v. Calderon, supra, 211 F.3d at p. 1163 [evidence of defendant’s childhood marked by neglect and instability was sufficiently mitigating to require reversal for counsel’s failure to present it]; In re Lucas (2004) 33 Cal.4™ 682, 735 [childhood abandonmentsignificant mitigating evidence]; Douglas v. Woodford (9™ Cir. 2002) 316 F.3d 1079, 1088 [same].) No doubt due in large part to their mother’s alcoholic and erratic behavior, Matthew and Michael were very protective of her. (RT 3673, 3758.) It surely was notlost on the jury that after she set her child on the tragic course that resulted in the charged crimes, Matthew’s mothernot only again abandoned him — not oncevisiting him while in custody and even moving out of the state — she testifiedfor the prosecution at the guilt phase and did not testify at all at the penalty phase in order to plead for her child’s life. Despite having been raised by such a parent and his troubling family environment, Matthew remained a loving, nurturing, and obedient child whohadpositive relationships with everyone 261 in his life, and who had avoided any kind oftrouble until the commission ofthe crimes. (RT 3615-3616, 3620, 3638-3639, 3650, 3662-3663, 3665, 3685, 3710, 3716, 3768-3769, 3777-3778, 3780, 3785, 3821, 3828-3829, 3835, 3838;see, e.g., Parker v. Dugger (1991) 498 U.S. 308 [defendant’s positive relationships with friends and family appropriate mitigating factor]; Mayfield v. Woodford (9" Cir. 2001) 270 F.3d 915, 918-919, 929-932 [same]; Jackson v. Herring, supra, 42 F.3d at p. 1368 [same].) Until he eventually dropped out ofhigh schoolat a time that coincided with his mother’s reentry into his life, Matthew also overcamehis chaotic family life and learning disabilities to be what his teachers consistently described as a good, respectful student who worked hard at his studies. (RT 3607, 3707, 3710, 3707-3709, 3711-3716, 3719-3720, 3722-3724, 3726, 3732, 3734, 3745-3746, 3749-3750, 3817-3819, 3821-3822; see, e.g., In re Lucas, supra, 33 Cal.4™ at p. 735 [where aggravating evidence based on crimes in which defendant “brutal[ly]” killed two elderly and “vulnerable” neighbors in their home, and on defendant’s prior violent assault, and where there was mitigating evidence regarding “childhood hardship” and “positive human qualities,” case was sufficiently close to require reversal ofpenalty judgment underStrickland standard for counsel’s failure to present additional mitigating evidence of “childhood abandonment” and abuse]; Mayfield v. Woodford, supra, 270 F.3d at pp. 918-919, 929-932 [where aggravating evidence based on current crimes in which defendant planned and committed killing of three people in two separate incidents, and on defendant’s prior violent assaults, and where there was mitigating evidence regarding childhoodillness, drug use, and psychological and social problems, case wassufficiently close to require reversal ofpenalty judgment under Strickland standard for counsel’sfailure to present additional mitigating evidence of defendant’s positive relationships and otherwise non-violent character]; see also Douglas v. Woodford, supra, 316 F.3d at p. 1090 [and authorities cited therein — “the gruesomenatureof(a) killing (does) not necessarily mean that the death penalty (is) unavoidable”].) 262 Finally, in keeping with his character before the shooting, the uncontroverted evidence showed that Matthew adjusted well to incarceration following his arrest. (See, e.g., Belmontes v. Woodford, supra, 350 F.3d 860, 907 [defendant’s adjustmentto incarceration part of “substantial mitigation”].) He had enrolled in school, obtained his G.E.D., and was taking classes toward earning his high school diploma. (RT 3791, 3797-3798.) Accordingto his teacheratthejail, he was a good student who completed his assignments well and on time, seemed to enjoy the learning process, and was “a pleasure”to have in class. (RT 3797- 3800.) In sum, the portrait that emerged was of an inexperienced and immature teenager who had never engagedin a single act ofviolence or any kind of antisocial behavior until he was awakenedin the dead ofnight by his mother, who hysterically recounted a horrific story ofhaving suffered a violent group beating and insisted that her young sons confront her attackers. Matthew’s response to his mother’s hysteria was no doubt colored by her history of neglect andinstability, his resulting need for her love and approval and a desire to protect her, and his chronological and emotional immaturity. (RT 3673, 3758.) As the prosecutor recognized, Matthew’s motherdirected him to the confrontation (RT 3305-3306), his brother led him to it (RT 3292, 3298), and a third party put a gun in his hands (RT 3453). Of course, the boys’ decision to arm themselves was a dangerousand, ultimately, deadly and tragic one. But there is also no doubtthat it was a decision born largely oftheir immaturity and the terrible combination oftheir family history and the extraordinary set of circumstances in which they found themselves. Intending — as the jurors found — nothing more than to frighten their mother’s attackers andretrieve her belongings, the confrontation rapidly escalated into an explosion of violence. The crimes were, in essence, an assault with a deadly weapon, committed by inexperienced and emotionally damaged teenagers whose judgmentwasclouded by a highly unusual confluence of events, gone horribly wrong. (See, e.g., Belmontes v. Woodford, supra, 350 F.3dat p. 907 [penalty 263 phase error required reversal where, inter alia, the crime, “though shocking and deplorable, was in essence a robbery gone wrong”); Harris v. Dugger (1 1" Cir. 1989) 874 F.2d 756, 763-764 [penalty phase error required reversal where,inter alia, evidence showed “a burglary gone horribly awry as opposedto one involving murderas the intended goal”].) That the jurors viewed the case to be a close one is beyond dispute. Although the evidentiary phase ofthe penalty trial took just over three days (CT 759-760, 765-768), and did not involve particularly complex evidence or issues, such as psychiatric evidenceor factual or legal issuesrelating to prior criminal conduct, the jurors deliberated over the course ofsix days. (CT 771-772, 774, 7716-777, 790; RT 3940-3943;see, e.g., Parker v. Gladden (1966) 385 U.S. 363, 365 [finding prejudice from error where “the jurors deliberated for 26 hours, indicating a difference among them asto the guilt ofpetitioner”]; Mayfield v. Woodford, supra, 270 F.3d at p. 932 [lengthy deliberations one indication of close case]; Murtishaw v. Woodford (9® Cir. 2001) 255 F.3d 926, 973 [same]; Hamilton v. Vasquez (9™ Cir. 1994) 17 F.3d 1149, 1163 [‘the jury spent three days deliberating in the penalty phase, suggesting that the California jury saw this as a close case”]; United States v. Kojayan, supra, 8 F.3d at p. 1323 [fact jury deliberated over two daysafter one and a half day trial indicated close case]; re Martin (1987) 44 Cal.3d 1, 51 [and authorities cited therein — relatively lengthy deliberations “compels the conclusion”that the case was “very close”]; see also People v. Carpenter (1997) 15 Cal.4™ 312, 422 [whetherlength of deliberations demonstrates close case should be assessedin light of relative complexity of legal issues and complexity and amount of evidence presented]; People v. Cooper (1991) 53 Cal.3d 771, 837 [same].) On the fourth day oftheir deliberations, the jurors inquired into the results ofjury deadlock on the question of penalty, clearly suggesting that the vote was a close one. (CT 775; RT 3933; see Mayfield v. Woodford, supra, 270 F.3d at p. 932 [Court considered jury note inquiring into whetherall 12 jurors had to agree on sentence before they returned death verdict in 264 concluding that penalty phase case was close and error committed therein prejudicial].) On this record, ifthe jurors’ reasonable doubts that Michael was the actual shooter led them to reject the death penalty as even apossibility, there is no question that their lingering doubts that Matthew wasthe actual shooter would have led them to reject the death penalty as an actuality. Respondent simply cannot prove beyonda reasonable doubtthat the error did not contribute to the death verdict. (Chapman v. California, supra, 386 U.S.at p. 24.) The penalty judgment must be reversed. IX. THE OMISSION OF, AND AFFIRMATIVE DIRECTION TO DISREGARD. PREVIOUSLY GIVEN EVIDENTIARY INSTRUCTIONSIN THE PENALTY PHASE VIOLATED STATE LAW, MATTHEW’S RIGHTSTO A FAIR TRIAL AND A RELIABLE PENALTY PHASE JUDGMENT UNDERTHE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS, AND REQUIRES REVERSAL OF THE PENALTY JUDGMENT. A. Introduction. In the guilt phase oftrial, the court provided the jury with standard instructions defining and guiding the jury’s consideration ofthe evidence. (CT 668-691.) In the penalty phase,the trial court affirmatively instructed the jurors to disregardall ofthe guilt phase instructions that were omitted from the penalty phase, an instruction the prosecutor emphasized in his summation. (CT 781; RT 3866; CALJIC No. 8.84.1.) In this regard and contrary to the clear directive in the Use Note to CALJIC No. 8.84.1, the court omitted several vital evidentiary instructions from its penalty phase charge. (CT 780-789.) As discussed below, the combination of this affirmative admonition along with the omission ofcritical evidentiary instructions during the penalty phase violated state law as well as Matthew’srightto a fair sentencing hearing anda reliable penalty phase 265 determination, as guaranteed by the Fifth, Eighth and Fourteenth Amendments. As respondent cannot prove the error harmless beyond a reasonable doubt, the penalty judgment must be reversed. B. The Omission Of, And Affirmative Direction To Disregard, Critical Evidentiary Instructions In The Penalty Phase Violated State Law And Matthew’s Rights To A Fair Penalty Phase Trial And A Reliable Penalty Phase Judgment UndertheFifth, Eighth, And Fourteenth Amendments. Asdiscussed in the preceding arguments,it is well settled under California law that “even in the absence of a request, a trial court must instruct on the general principles of law relevantto the issues raised by the evidence.” (People v. St. | Martin, supra, 1 Cal.3d at p. 531; accord, e.g., People v. Marks, supra, 45 Cal.3d at p. 1345; People v. Wickersham, supra, 32 Cal.3d at p. 324.) “The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding ofthe case. [Citations.]” (People v. Wilson, supra, 66 Cal.2dat p. 759.) “This includes the duty to instruct on those general principles relating to the evaluation of evidence.” (People v. Daniels (1991) 52 Cal.3d 815, 885; see also, e.g., Pen. Code §§ 1093, subd.(f), 1127; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884 [credibility of witnesses]; People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [circumstantial evidence]; People v. Reeder (1976) 65 Cal.App.3d 235, 241 [expert testimony].) Ofcourse, jury instructions are of vital importance in every criminal case. (See, e.g., Carter v. Kentucky, supra, 450 U.S.at p. 302.) In capital cases, the need for careful guidance regarding the definition and consideration of evidenceis particularly acute given the “heightened ‘need forreliability in the determination that death is the appropriate punishmentin a specific case’.” (Caldwell v. Mississippi, supra, 472 U.S.at p. 340.) 266 State law andthe Fifth, Eighth, and Fourteenth Amendments guarantee that penalty judgments be basedsolely on the evidence adducedattrial. (See,e.g., Taylor v. Kentucky, supra, 436 U.S. at p. 486 [due process guarantees that judgmentsbe based solely on evidence admittedattrial]; Gardner v. Florida (1977) 430 U.S. 349, 362; People v. Sandoval (1992) 4 Cal.4™ 155, 194 [“Penalty determinations are to be based on the evidence presented by the parties and the legal instructions given by the court”); People v. Brown, supra, 45 Cal.3d atp. 1253, citing California v. Brown (1987) 479 U.S. 538, 541-543 [“the Eighth Amendmentrequires guided sentencing discretion and thus precludes penalty judgments not based on the evidence”]; Sandoval v. Calderon (9" Cir. 2001) 241 F.3d 765, 776, cert. denied 534 U.S. 943 (2001).) In other words, penalty determinations may notbe based in any part on extraneous matters, such as counsels’ referencesto alleged facts that are not in evidence or misstatements of facts. (See, e.g., Paxton v. Ward (10 Cir. 1999) 199 F.3d 1197, 1216-1218 [in penalty phaseof capital trial, prosecutor’s misleading allusion to facts not in evidence deprived defendant of federal constitutional rights to present mitigating evidence, to rebut evidence, and to cross-examination]; Antwine v. Delo (8" Cir. 1995) 54 F.3d 1357, 1362, cert. denied 516 U.S. 1067 (1996)[in penalty phase ofcapitaltrial, misleading reference to matters not in evidence violated Eighth Amendment; a decision based on such matters “does not meet the standard of reliability the Eighth Amendment requires”]; Newlon v. Armantrout (8" Cir. 1989) 885 F.2d 1238, 1335-1337 [in penalty phaseofcapitaltrial, injection of matters not in evidence violated federal due process]; United States v. Manning (1* Cir. 1994) 23 F.3d 570, 573 [insinuating other inculpatory evidence exists that was never presented].) “Trial courts must be especially vigilant to guard against any impairment ofthe defendant’s right to a verdict based solely upon the evidence and the relevant law.” (Chandler v. Florida (1981) 449 U.S. 560, 574.) Hence, clear and unambiguousinstructions defining and guiding the jury’s consideration 267 ofthe evidence are essential to protect these constitutional guarantees. (See,e.g. Taylor v. Kentucky, supra, 436 U.S. at pp. 486-490.) Wherestandard evidentiary instructions have been providedin the guilt phaseoftrial but omitted in the penalty phase, this Court has assumed that reasonable and intelligent jurors will both recall those instructions and correctly assumethat they apply in the penalty phase, but only in the absence ofan instruction to the contrary. (See, e.g., People v. Saunders (1995) 11 Cal.4™ 475, 561; People v. Hawthorne (1992) 4 Cal.4™ 43, 73; People v. Daniels (1991) 52 Cal.3d 815, 885.) However, where the penalty phase jury is instructed to disregard the guilt phase instructions, this assumption obviously cannotbe made. (People v. Carter (2003) 30 Cal.4" 1116, 1219.) | CALJIC No. 8.84.1, as given in this case and revised in 1988, is just such an instruction. (CT 781.) That instruction provides: “You are now being instructed as to all ofthe law that applies to the penalty phase ofthetrial. [P] You must determine whatthe facts are from the evidence received during the entire trial unless you are instructed otherwise. You must accept andfollow the law thatI shall state to you. Disregard all other instructions given to you in otherphases of this trial.” (CT 781, emphasis supplied; RT 3866.) However, recognizing the need to define and guide the jury’s consideration of the evidence in making its penalty phase determination, the Use Note to CALJIC No.8.84.1 clearly explains that the instruction is intended to substitute for CALJIC No. 1.00 (the introductory guilt phase instruction) “and should be followed byall appropriate instructions beginning with CALJIC 1.01, concluding with CALJIC 8.88.” Unfortunately, the trial court in this case failed to follow the Use Note. In addition to CALJIC No.8.84.1 and the other standard penalty phase instructions (CALJIC Nos. 8.84, 8.85, and 8.88), the court did provide the following evidentiary instructions: 2.20 (witness credibility), 2.21.1 (discrepancies in witness testimony), 2.21.2 (witness willfully false), 2.27 (testimonyofsingle 268 witness), and 2.60 (defendant not testifying). (CT 780-789.) However, the court omitted all of the other applicable instructions defining and guiding the jury’s consideration of “evidence.” (CALJIC Nos. 1.01, 1.02, 1.03, 1.05, 2.00, 2.01, 2.02, 2.09, 2.11, 2.13, 2.22.) Of course, it must be presumed that the jury followsits instructions, regardless ofwhether that presumption favors or harms the defendant. (See, e.g., Francis v. Franklin, supra, 471 U.S. 307, 324, n. 9 [recognizing presumption and criticizing position that “would have the degree of attention a juror is presumedto pay to particular instructions vary with whether a presumption ofattentiveness would help or harm the criminal defendant”]; People v. Sanchez, supra, 12 Cal.4” at p. 79; People v. Bonin (1988) 46 Cal.3d 659, 699; United States v. Span (9thCir. 1996) 75 F.3d 1383, 1390.) Hence,sincethe trial court explicitly directed the jurors to do so, it must be presumedthat they followed CALJIC No. 8.84.1 and in fact disregarded all ofthe instructions that had been providedin the guilt phase but were not repeated in the penalty phase. (People v. Carter, supra, 30 Cal.4™ at p. 1219.) Indeed, the prosecutor opened his summation by pointedly reminding the jurors that they were to disregard all guilt phase instructions that were omitted in the penalty phase. (RT 3871.) Forall ofthese reasons, and as the Court has recognized, the combination ofthis affirmative instruction and the omission of applicable evidentiary instructions amounts to error. (People v. Carter, supra, at pp. 1219-1220, 1231.) Furthermore, because the omitted instructions werecritical to a fair and reliable penalty phase determination,particularly given the prosecutor’s arguments (as discussed in detail below), the error violated Matthew’srights underthe Fifth, Eighth, and Fourteenth Amendments. C. The Penalty Judgment Must Be Reversed. 269 Asdiscussed in the preceding arguments, where,as here, error of federal constitutional dimension has occurred, reversal is required unless the court determines that it was harmless beyond a reasonable doubt. (Sullivan v. Louisiana, supra, 508 U.S.at p. 279; Yates v. Evatt, supra, 500 U.S.at p. 404; Chapman v.California, supra, 386 U.S.at p. 24; People v. Lucero, supra, 44 Cal.3d 1006, 1032.) For state law violations, reversal is required if it is reasonably possible that the errors affected the penalty verdict. (People v. Brown, supra, 46 Cal.3d at pp. 447-448; see also People v. Ashmus, supra, 54 Cal.3d at p. 965 [equating reasonable possibility standard under Brown with the federal harmless beyond a reasonable doubt standard].) Under these standards, the penalty judgment mustbe reversed. While the instructions did refer to the “evidence received during the entire trial” (RT 3863), the court omitted — and told the jury to disregard - CALJIC No. 2.00, which defines “evidence.” CALJIC No. 2.00, which the court had provided in the guilt phase, defines “evidence”as the “testimony ofwitnesses, writings, material objects, or anything presented to the senses and offered to prove the existence or non-existence ofa fact,” and explains the difference between direct and circumstantial evidence. (CT 674.) Furthermore, the court omitted — and told the jury to disregard - CALJIC No. 1.02. CALJIC No. 1.02, which the court had provided in the guilt phase, provides: STATEMENTS OF COUNSEL -- EVIDENCE STRICKEN OUT-- INSINUATIONS OF QUESTIONS-- STIPULATED FACTS Statements made bythe attorneys during thetrial are not evidence.. . If an objection was sustained to a question, do not guess what the answer might have been. Donotspeculate as to the reason for the objection. 270 Donot assumeto be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you to understand the answer. Do not considerfor any purpose any offer of evidence that was rejected, or any evidence that was stricken by the court; treat it as though you had never heard of it. (CT 670.) The importance ofCALJIC No. 1.02 cannot be overstated. Withoutit, there is a grave dangerthat the jury will give undue weight to attorneys’ statements, particularly when they purport to refer to facts not in evidence or otherwise misstate the evidence presented. (See, e.g., People v. Hill, supra, 17 Cal.4" at p. 828.) Where the attorney making such statementsis the prosecutor, the special regard jurors have for prosecutors leads to a virtual inevitability that they will accept his statements as true, and thereby fill evidentiary voids in his case, unless they are instructed otherwise. (See, e.g., Berger v. United States, supra, 295 U.S.at p. 88 People v. Perez, supra, 58 Cal.2d at p. 247; People v. Bolton, supra, 23 Cal.3d at p. 213.) As the Court has recognized, a prosecutor’s allusions to alleged facts not in evidence or mischaracterization ofthe evidence presented tends to makethe prosecutor his “own witness--offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, ‘although worthless as a matter oflaw, can be “dynamite”to the jury because ofthe special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.’ [Citations.]” (People v. Bolton,supra, 23 Cal.3d at p. 213; accord, e.g., People v. Hill, supra, 17 Cal.4™ at p. 828; People v. Bell, supra, 49 Cal.3d at pp. 533-534, 539; Douglas v. Alabama (1964) 380 U.S. 415, 419-420.) Indeed,the critical role CALJIC No. 1.02 plays in safeguarding a defendant’s constitutional rights to be judged solely on the evidence admitted against him is underscored by the many decisions of this Court and others holding that its provision alone will “cure” the otherwise devastating nature of such statements. (See, e.g., People v. Sanchez, supra, 12 Cal.4" at p. 70 [instruction with CALJIC No. 102 “vitiated the misleading effect of any inaccurate remarks” 271 by the prosecutor”]; People v. Sandoval, supra, 4 Cal.4" at p. 182 [CALJIC No. 1.02 cured effect ofprosecutor’s reference in cross-examination to improper matter not in evidence]; People v. Carrera (1989) 49 Cal.3d 291, 3 19 [same]; People v. Szeto (1981) 29 Cal.3d 20, 33 [same]; see also United States v. Mendoza (9™ Cir. 2001) 244 F.3d 1037, 1044 [and authorities cited therein].) Of course, the harm here is not merely that the court omitted instructions explaining that the statements ofthe attorneys are “not evidence” and could not be accepted as true without evidentiary support. Again, as the Court has recognized, the jurors presumably rememberedthatinstruction from the guilt phase. (See, e.2., People v. Hawthorne, supra, 4 Cal.4™ 43, 73; People v. Daniels, supra, 52 Cal.3d at p. 885.) The harm lies in the court’s affirmative direction to disregard any guilt phase instructions it had omitted, harm compounded bythe prosecutor’s pointed reminder to do so. (RT 3871.) Giventhis affirmative instruction and the presumption that the jurors recalled the guilt phase instructions, the instructions as a whole left the definite impression that the jurors were free to consider the prosecutor’s statements as an appropriate source of information on which to make their penalty determination, even those statements without any support from an independentsource, suchas the “testimony ofwitnesses, writings, material objects.” In assessing the prejudicial effect ofthe instructionalerror, the prosecutor’s arguments are obviously of enormous significance. (See, e.g., Taylor v. Kentucky, supra, 436 U.S. at pp. 486-490 [given prosecutor’s argument purportingto refer to facts not in evidence and suggesting inference of guilt from issuance ofwarrant, failure to instruct on presumption of innocence andthat indictmentis not “evidence” was prejudicial and violated defendant’s due processright to a fair trial and to be judged based solely on the evidence adduced attrial]; People v. Wims (1995) 10 Cal.4™ 293, 315 [arguments of counsel considered in assessing prejudice from instructional error]; Coleman v. Calderon (9" Cir. 1999) 210 F.3d 1047, 1051 [same — instructional error prejudicial in light ofprosecutor’s 272 remarks].) This is so regardless ofwhether the “prosecutorial comments, standing alone, wouldrise to the level of reversible error . . . [because] they are relevant to the need for carefully framed instructions designed to assure that the accused be judged only on the evidence.” (Taylor v. Kentucky, supra, 436 U.S.at p. 487, n. 14.) If the prosecutor’s statements to the jurors were limited to the facts in evidence or otherwise supported by the evidence, for instance, the instructional error that occurred here would likely be harmless. Unfortunately, the prosecutor in this case did not so limit his remarks. Asdiscussedin the previous argument, the prosecution’s aggravating evidence was limited to the crimes themselves and their impact on the victims and their families. The prosecutor persuaded the court to provide a pinpoint instruction that the jury could consider victim impact evidence in aggravation. (CT 753, 782; RT 3563-3564, 3864.) Obviously, victim impact wasa critical componentofthe prosecutor’s case. With regard to this issue and as discussed in Argument VI, the prosecutor argued that although one of the victims, Rodney James, had survived the shooting, Matthew was nevertheless responsible for his death two years later from a heroin overdose because James had turned to heroin as a result ofthe shooting. In his opening statementat the guilt phase, the prosecutor represented that James “began using heroin very heavily in the two years immediately after” the shooting and died of an overdose. (RT 1871.) In his penalty phase summation, he arguedthat James “was shot twice, very severely injured, and started intravenously using heroin within a year or so after his release from the hospital. And the death certificate you have in evidencethat he didn’t die right away, he died a slow death over a couple ofyears due to intravenous heroin use and eventual overdose. But you can considerthat, what he went through because ofwhat someoneelse did.” (RT 3885-3886.) This was a compelling piece ofthe prosecutor’s case for aggravation. Unfortunately, the prosecutor’s remarkshad utterly no support in the evidence. 273 As mentioned in ArgumentVi, there was no evidenceat all that James had ever used heroin. James’s death certificate revealed nothing more than that he had died twoyears after the shooting, that the cause ofhis death was “pending,” and that an autopsy had been performed, but did not reveal its results. (Trial Ex. 35.) In short, there was no evidence that James had died of a drug overdose. Certainly, there was absolutely no evidence to suggest that the shooting and James’s death of unspecified causes two years later had any causal connection. (See, e.g., People v. Edwards (1991) 54 Cal.3d 787, 835 [consideration ofvictim impact evidence “encompasses evidencethat logically shows the harm caused by the defendant’); accord, e.g., People v. Brown, supra, 33 Cal.4™ at p. 396.) Despite the utter absence ofany real evidence to prove these supposedfacts, the prosecutor’s remarksclearly “suggested to the jurors that the prosecutor had a source of information unknown to them whichcorroborated the truth ofthe matters in question.” (People v. Wagner, supra, 13 Cal.3d 612, 619-620.) Hadthe court instructed the jurors with CALJIC Nos. 1.02 and 2.00, they presumably would have followed that instruction and disregarded the prosecutor’s comments because they were unsupported by the evidence. However, the court affirmatively instructed the jury to disregard those instructions. Given that instruction — which the jurors presumably followed — combined with the high regard juries have for prosecutors, “it is reasonable to assumethat . . . the jurors wereled to believe that, in fact,” the prosecutor’s information was true andthat they gave it great weight in aggravation, just as the prosecutor intended. (People v. Wagner, supra, 13 Cal.3d at pp. 619-620; see also People v. Powell (1967) 67 Cal.2d 32, 56-57 [“we have seen how important (the evidence was) to the People’s case, and ‘There is no reason why we shouldtreat this evidence as any less “crucial” than the prosecutor — and so presumably the jury — treated it’”].) Muchofthe prosecutor’s portrayal of the shooting as particularly aggravated wassimilarly without evidentiary support. As mentioned in Argument VI, above, the prosecutor vehemently argued that Matthew,as the shooter, did not 274 intend merely to kill the five people he shot, but to kill as many people as possible. He was only prevented from killing more victims, the prosecutor argued, because he ran out of ammunition: “Whatifhe hadn’t run out ofammunition in that room? Do youthink at some point he just thought: I’ve shot up enough people, I’m going to stop now. He was either going to run out ofvictims or run out of ammunition, one of the two. Fortunately, it was ammunition.” (RT 3921.) Again, this was a powerful depiction ofa particularly heinous and cold-blooded shooting spree weighing in favor ofdeath and undercutting the otherwise mitigating inference that three of the victims had been shot unintentionally. (See Argument IV.) Once again, however, there was absolutely no evidence that the shooter emptied his gun at the room ofpeople and ceased shooting only because he ran out of ammunition. The evidence showed only that 14 rounds of .223 ammunition werefired from the same gun. (RT 2557, 2568-2569.) Because the actual gun was never recovered, there was no direct evidence regarding the amount ofammunitionit could carry. Nor wasthere any circumstantial evidence to support the prosecutor’s contention.*° According to prosecution’s own guilt phase evidence, at the time ofthe shooting, magazinesthat fired .223 ammunition could hold anywhere from five to “50 or even more” rounds. (RT 2865-2866.) Indeed, magazines carrying 20 to 30 rounds were “fairly common.” (RT 2866.) Nota single witness testified that the shooter ever made an unsuccessful attemptto fire the gun. Not a single witnesstestified to any matter that would support such an inference, such as hearing the sound ofa clicking trigger. Giventhetrial judge’s own remarks in ruling on Matthew’s application to modify the death verdict, there can be no doubt that the prosecutor’s argumentin this regard carried great aggravating weight. In discussing the aggravating evidence warranting the death verdict, the trial judge himself emphasized, and %6 Ofcourse, the court also omitted — and told the jurors to disregard — CALJIC No. 2.00, which guides consideration of circumstantial evidence. 275 gave weightto, the non-existent “evidence” that Matthew did not stop shootingat people until he had run out ofbullets. (RT 3975.) If the experiencedtrial judge was misled by the prosecutor’s remarksin this regard and indeedrelied on them as evidence in determining that death was warranted,it can safely be assumedthat the lay jurors did, as well. (Cf. People v. Crittenden (1994) 9 Cal.4® 83, 151 [and authorities cited therein -- judge’s ruling on application to modify death verdict must be based on evidence admitted and presented to jury].) Continuing his theme ofportraying the shooting as deliberative and sadistic rather than reactive and precipitous, the prosecutor emphasized the “powder burns on the victim[s]. Placing the gun up to their body, sending a piece of lead going thousandsoffeet per second through their body again and again.” (RT 3921.) Again, as discussed in Argument VI, there was no evidence that any of the victims suffered powder burnsor that the shooter placed the gun against any victim’s body and repeatedly fired it. The pathologist explicitly testified that she did not find stippling to the skin, or “powder burns,” on any ofthe victims. (RT 1950, 1959, 1996, 2012-2103.) In fact, she testified that both Watchman and Arnold “had the appearance of distant wounds” and that Trudell had been shot from a distance ofat least three feet or more. (RT 1951, 1959.) In short, there was no direct or circumstantial evidence that the shooter placed his gun directly against the body of any victim and fired it even once, much less multiple times. Onceagain,the trial judge’s remarks in ruling on the application to modify the death verdict reflect the weight given the prosecutor’s otherwise unsupported remarks. The judge emphasizedthat “these were particularly cold-blooded shootings; the evidence was uncontradicted and overwhelmingthat at least one of the fatal wounds wasat close range to the head ofLeslie Trudell” and pointed to the evidence about “stippling, which shows. . . a shot within two feet ofMr. Trudell to his head.” (RT 3975.) Not only was this incorrect as to Trudell, who had been shot from at least a distance ofthree feet or more and who did not bear any signs of stippling; it was incorrectas to all of the other victims, none ofwhom 276 had been shotin headat all, muchless shot in the head at close range. Onceagain, if the experiencedtrial judge was so misled, it is highly likely that the lay jurors were, as well. . While not as explosive as the above remarks, the prosecutor made several other statements referring to or insinuating other matters outside of the evidencein order to bolster his case and weaken the defense. For instance, in responseto the mitigating fact that Matthew had no criminalrecord, the prosecutor took pains to specify that the evidence revealed only the absence of an “adultfelony conviction record.” (RT 3920, emphasis supplied.) In this regard, he strenuously argued,“he couldn’t have a long adult history for Christ’s sake, he was only 18 when he did this. It took him only a few monthsto get to the top. That’s somehow supposedto be mitigation? You’re supposed to think that he’s somehowless deserving of what he’s got coming becauseofthat? I suggest to you that there’s no mitigation here.” (RT 3920, emphasis supplied.) The prosecutor’s implication was obvious that while Matthew did not have an “adult felony conviction record,” he may well have had a long juvenile record to which the prosecutor wasprivy. Significantly, the implication was misleading, as Matthew had absolutely no record atall (Probation Report at p. 6), and served to diminish what was otherwise powerful mitigating evidence. (See, e.g., People v. Lucero,e.g., 44 Cal.3d at p. 1032; compare James v. Borg, supra, 24 F.3d at p. 27 [“although only 18 years old, petitioner had already amasseda lengthy criminal record”); see also Paxton v. Ward, supra, 199 F.3d at pp. 1216-1218 [in penalty phase ofcapitaltrial, prosecutor’s misleading insinuation regarding alleged extrajudicial facts violated defendant’s right to present mitigating evidence and to rebut the evidence and argument against him].) Similarly, the prosecutor argued that life without parole would not be appropriate punishment because Matthew would enjoy manyfacets oflife in prison ofwhich he had deprived the victims, such as “get[ting] married and hav[ing] conjugal visits.” (RT 3922.) Not only did these remarks refer to alleged 277 matters not in evidence, they were also false; prisoners sentenced to life without parole are not allowed conjugal visits, or overnight family visits. (Pen. Code § 2601 [amendedin 1997 to delete language granting prisoners “right” to “personal visits”]; CCR Title 15, section 3177, subd. (b)(2) [prisoners sentencedto life withoutparole are not entitled to “family visits,” defined as overnightvisits with family members];see also, e.g., Paxton v. Ward, supra, 199 F.3d at pp. 1216- 1218; People v. Bell, supra, 49 Cal.3d at pp. 538-539 [prosecutor’s argumentthat cocaine makes user “mellow” not only improperreferred to alleged matters not in evidence,it was also false].) Furthermore, the prosecutor seized on the brief statement of one of Matthew’s attorneys that executing him would not bring the victims back or ease their families’ pain by emphatically arguing, “well, under the law I’m not allowed to ask them that. I haveto tell them explicitly ahead oftime: that’s for the jury to decide. I’m not allowed to ask you that. I think you can imagine what some witnesses would have said were I able, but you can’t consider that. But ifyou think that their answer would have been no, why didn’t the defense ask them that?” (RT 3919.) Again, the obvious implication was that the prosecutor was privy to information — the family members’ desire that Matthew be put to death — that had not been admittedattrial through any source. (See, e.g., Miller v. Lockhart (8" Cir. 1995) 65 F.3d 676, 685 [reference to family’s wish that defendant be executed where no such evidence presented injects improper extrajudicial matters into trial].) In mitigation, Matthew also presented substantial evidence that he was, and always had been,a talented artist. (RT 3633-3634, 3651, 3664, 3709.) The prosecutor madeshort shrift ofthis evidence, arguing that it did not demonstrate his uniquenessas a sensitive human being. Thisis so, the prosecutor argued, because he had personal knowledge that most death row inmates haveartistic ability: “You go to San Quentin in the gift shop out there, there’s ton of artwork. Some guys havetattoos like that. Ifyou can draw rose like that, does that have 278 any weightat all if you put that on a scale next to what he did in this case?” (RT 3921-3922: see, e.g., People v. Hill, supra, 17 Cal.4” at p. 838 [prosecutor’s references to prison conditions based on her own experience outside of evidence]; Miller v. Lockhart, supra, 65 F.3d at p. 683 [prosecutor’s reference to matters of personal knowledge based on his experience outside of evidence]; Young v. Bowersox (8" Cir. 1998) 161 F.3d 1159, 1162, cert. denied 528 U.S. 880 (1999) [prosecutor’s remark that defendant’s crime wascoldest he had seen indirectly referred to other crimes not in evidence].) Furthermore, one of his teachers testified to Matthew’s academicefforts and progressin jail as evidence in mitigation. However, in his cross-examination of the teacher andhis closing argument, the prosecutor insinuated, again implicitly based on his own experience, that academic progressin jail is a typical capital mitigation ruse and therefore entitled to little if any weight. (RT 3805-3807, 3922-3923; see People v. Hill, supra, 17 Cal.4® at p. 838 [prosecutor’s implication that defense arguments were “stock arguments” which should be disregarded].) Moreover, the prosecutor invoked Biblical doctrine, and thus referred to extraneous matters notin evidence,in arguing “this is not some corny debate about an eye for an eye, this is an eye for an eye three times. Hetried to takefive eyes. This is not an even trade. But as I said, it is all we can do.” (RT 3884;see, e.g., People v. Hill, supra, 17 Cal.4® at p. 836 [argumentcalling for an “eye for an eye” invokes Biblical doctrine]; People v. Roybal (1998) 19 Cal.4” 481, 520 {invocation of Biblical doctrine injects extraneous matterthat is not, and cannot be, evidence on which penalty decision is made]; Sandoval v. Calderon, supra, 241 F.3d at p. 776 [same].) Once again, had the jurors been properly instructed with CALIJIC Nos. 1.02 and 2.00, it would be presumedthat they disregarded all ofthe foregoing remarks. However, given the court’s affirmative direction to disregard those instructions, combined with the special regard jurors have for prosecutors, the jurors undoubtedly considered and gave weight to these statements as aggravation 279 in violation ofMatthew’s rights under the Fifth, Eighth and Fourteenth Amendments. The closeness ofthe penalty phase case has already been discussed in Argument VIII, which is incorporated by reference herein. In addition, ifthe Court determines that the jurors did understand that they could consider their lingering doubts that Matthew wasthe actual killer, then those doubts surely made a close case that much closer. (See, e.g., Sanders v. Woodford (9™ Cir. 2004) 373 F.3d 1054, 1066 [penalty phase instructional error required reversal where case wasa close one: “there is good reason to believe that the jurors may have had doubts about Sandersrole in the murder andthat it may thus have been only marginally inclined to impose the death penalty”]; Cargle v. Mullin (10Cir. 2003) 317 F.3d 1196, 1222 [weakness of guilt phase evidence considered in concluding penalty phase error prejudicial].) On this record and underthe standard ofprejudice for violations ofthe federal constitution, respondent cannot prove the error harmless beyond a reasonable doubt. (Chapman v. California supra, 386 U.S.at p. 24.) Underthe state law standard, there is more than a “reasonable possibility” (People v. Brown, supra, 46 Cal.3d at p. 448) that a juror “could have” (People v. Ashmus, supra, 54 Cal.3d at pp. 983-984) voted differently in the absence ofthe error. The penalty phase judgment must be reversed. X. HE COURT’S EXCLUSION OF HIGHLY RELEVANT MITIGATING EVIDENCE VIOLATED MATTHEW’S RIGHTS UNDER STATE LAW,AS WELL AS THE EIGHTH AND FOURTEENTH AMENDMENTS, AND REQUIRES REVERSAL OF THE DEATH JUDGMENT. A. Introduction. Matthew’srelationship with his brother, Michael, was highly relevant to the penalty determination for several reasons. As a general matter, it is well recognized that a defendant’s loving relationships with his family membersis 280 relevant mitigating evidence. (Parker v. Dugger, supra, 498 U.S. 308; Mayfield v. Woodford, supra, 270 F.3d at pp. 929-932; Smith v. Stewart (9" Cir. 1998) 140 F.3d 1263, 1270; Jackson v. Herring, supra, 42 F.3d at p. 1368.) Moreover, because the brothers committed the crimes together, it was relevant to explain and mitigate the circumstancesofthe crimes. Furthermore, it was relevant to rebut the prosecution’s ongoing guilt and penalty phase theme of castigating Matthew for “blaming his brother” and urging the jury to infer that any young man willing to trade his brother’s life for his own was exactly the kind ofyoung man capable of shooting five people and exactly the kind ofyoung man deserving ofthe death penalty. (RT 3437, 3889, 3926-3928.) Unfortunately, as explained below, while counsel was able to present generalized testimony about the loving relationship between the twobrothers, the court excluded specific evidence that would haveillustrated their relationship not only as a loving one, but also one wherein Michael assumed the leadership and protective role. The court’s exclusion ofthis mitigating evidence violated state law as well as Matthew’s rights under the Eighth and Fourteenth Amendments. As respondentwill be unable to prove the errors harmless beyond a reasonable doubt, the penalty judgment mustbe reversed. B. The Trial Court’s Exclusion Of Highly Relevant Mitigating Evidence Violated State Law As Well As Matthew’s Rights Under The Eighth And Fourteenth Amendments. Asdiscussed in Argument VIII, the Eighth and Fourteenth Amendments entitle a capital defendant to present, and have the jury consider,any relevant mitigating evidence. (See, e.g., Tennard v. Dretke, supra, 542 U.S._—_—:124 S.Ct. at p. 2570.) The High Court has defined relevant mitigating evidence “expansive[ly]” as evidence having “any tendency in reason to make the existence of any fact that is of consequenceto the determination more probable orless probable than it would be withoutit.” (Ibid., internal quotation marks omitted, 281 quoting from McKoyv. North Carolina, supra, 494 U.S.at p. 440.) Thus, “relevant mitigating evidence is evidence which tends logically to prove or disprove somefact or circumstance whicha fact-finder could reasonably deem to have mitigating value.’ [Citation.]” (Ibid.; accord Smith v. Texas (Nov. 15, 2004) ____US. __, 2004 U.S. Lexis 7668at p. 11.) “Oncethis low threshold for relevanceis met, the ‘Eighth Amendmentrequires that the jury be able to consider and give effect to’ a capital defendant’s mitigating evidence.” (Tennard v. Dretke, supra, at p. 2570, quoting from Boyde v. California, 494 U.S. at pp. 377-378 [and authorities cited therein]; accord, e.g., Payne v. Tennessee (1991) 501 U.S. 808, 822 [We have held that a State cannot preclude the sentencer from considering ‘any relevant mitigating evidence’ that the defendant proffers in support ofa sentence less than death .... [V]irtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances"]; Hitchcock v. Dugger, supra, 481 U.S. at pp. 397-398; Skipper v. South Carolina, supra, 476 U.S. at pp. 4-5; Eddings v. Oklahoma, supra, 455 U.S. at p. 114.) Penal Codesection 190.3 specifically permits the defendant to present, and requires the jury to consider, evidence relevant to several penalty issues (factors (a) through (j)). Factor (k) permits a capital defendant to present, and requires the jury to consider, “any other circumstance which extenuates the gravity ofthe crime even though it is not a legal excuse for the crime.” This section is intended to incorporate the federal constitutional requirement that jurors consider any relevant evidence that may serve as a basis for a sentence less than death. (People v. Boyd, supra, 38 Cal.3d at p. 775; People v. Easley (1983) 34 Cal.3d 858, 878; Belmontes v. Woodford, supra, 350 F.3d at p. 898.) The scope of admissible mitigating evidence under this provision,then, is “very broad.” (People v. Harris (1984) 36 Cal.3d 36, 68.) Here, as noted in the introduction, Matthew’srelationship with his brother was Critical mitigating evidence for a numberofreasons. In orderto illustrate that 282 relationship, counsel offered to present through Matthew’s father, Harry Souza, evidence regarding an incident in high school in which Michaelgotinto a fist fight in order to protect Matthew. (RT 3618-3619.) In front of the jurors, the prosecutor objected on relevance grounds. (RT 3619.) Matthew’s counsel replied that it was relevant to “family closeness.” (RT 3619.) The prosecutorreiterated, “that’s not relevant,” to which the court responded in front ofthe jurors, “I will sustain that. That’s a bit far afield.” (RT 3619.) The court’s ruling was erroneous. First, as noted above and as counsel argued below,it is beyond dispute that a defendant’s close relationships with family membersis constitutionally relevant mitigating evidence. (Parkerv. Dugger, supra, 498 U.S. at p. 314; Mayfield v. Woodford, supra, 270 F.3d at pp. 929-932; Smith v. Stewart, supra, 140 F.3d at p. 1270; Jackson v. Herring, supra, 42 F.3d at p. 1368.) Furthermore, the offered evidence was highly relevant to explain the crimes. IfMichael was the leader in the crimes and Matthew the follower, that evidence was highly relevant mitigation relating to the circumstances ofthe crimes. (See Pen. Code § 190.3, subds.(a), (g), (j), (k).) Evidence of specific prior occasions in which Michael assumedthe role of leader and protector ofhis brother, who was only a year youngerthan himself, tended to make it “more probable” that Michael also assumed the leadership role in planning and orchestrating the crimes, which was a “fact . . . of consequence to the [penalty] determination .. . .” (Tennard v. Dretke, supra, 124 S.Ct. at p. 2570; accord McKoyv.North Carolina, supra, 494 U.S.at p. 440.) Moreover, the evidence was highly relevant to the central issue underlying the jury’s choice between life and death, to rebut the prosecution’s theory that Matthew wasthe shooter, and to support the lingering doubt defense based on the evidence that Michael was the shooter. Evidence of specific prior instances in which Michael had engaged in violentacts to protect family members while Matthew remainedpassivecertainly tended to underminethe prosecution’s theory that Matthew, not Michael, was the actual shooter by showingthat its theory was 283 completely at odds with the boys’ past behavior. (See, e.g., Green v. Georgia, supra, 442 U.S.at p. 97 [trial court violated due process by excluding from penalty phase evidence tending to show that co-participant was only actual killer, particularly since prosecutor argued defendant was an actualkiller; Rupe v. Wood, supra, 93 F.3d at pp. 1440-1441 [same — exclusion ofpolygraphtestto state’s chief witness to rebut prosecution’s theory regarding defendant’s role in crimes]; Mak v. Blodgett, supra, 970 F.2d at pp. 622-623[trial court violated due process and Eighth Amendmentby excluding evidence tending to show that co- participants were one who planned crimes].) In other words, the excluded evidence had a “tendency in reason to make the existence ofany fact that is of consequenceto the determination” — Michael’s role as the actual shooter and Matthew’srole as the non-shooting aider and abettor — “more probable . . . than it would be withoutit.” (Tennard v. Dretke, supra, 542 U.S.__, 124 S.Ct. at p. 2570; accord McKoy v.North Carolina, supra, 494 U.S. at p. 440.) The court’s exclusion ofthis evidence violated state law and Matthew’s rights under the Eighth and Fourteenth Amendments. (Ibid; Pen. Code § 190.3, subd. (k).) In addition, as mentioned in Arguments VIII and IX, Matthew’s teacherin the jail’s education program testified to his academic progress. (RT 3791-3798.) Through the teacher, counsel moved to admit one ofhis writing assignments,a short essay entitled, “Someone Who Understands.” (RT 3799; Exhibit V.) The essay read: Weall need someone who understands us. Some people turn to their family or their friends when they need help. I always talk to my brother because I know that Mike who is my brother, really understands me. We’ve known each other for 22 years. Wefirst met when I was born. Atfirst we didn’t always get along, but after a while I learned that my brother was a person I could trust and one who would always stand by me. Wehavehada lot of fun together. I’! never forget the time we would play football together. I guess people understand each other 284 best when their [sic] faced with bad and good times together? (People’s Trial Exhibit V.) Theprosecutor objected to admission ofthe essay on hearsay grounds. (RT 3799-3800.) The court sustained the objection without allowing argument from counsel. (RT 3800.) At counsel’s request, the parties held a sidebar conference, which was unreported. (RT 3800.) At the close of the teacher’s testimony, the court attempted to reconstruct the sidebar conference for the record. (RT 3809- 3810.) According to the court, at sidebar, counselpointed out that oneofthe victim’s children had been permitted to read a poem;the court and the prosecutor replied that counsel did not object to the reading of the poem. (RT 3810.) More importantly, the court observed, the poem was relevant because it was victim impact evidence, while Matthew’s essay “would not necessarily carry that same relevance, but would beself-serving.” (RT 3810.) The court further noted that while counsel also argued the relevance ofthe evidence toillustrate Matthew’s academic progress, the court concludedthat it “would not necessarily be relevant to that issue.” (RT 3810.) Furthermore, the court noted, the essay’s “discussion about his relationship” with his brother “also addsto its inappropriate value as hearsay.” (RT 3810.) For these reasons, the court ruled the evidence inadmissible. (RT 3810.) Once again, the court erred. Asto the court’s ruling that the evidence wasnot relevant, it was clearly incorrect. The excluded evidence was highly relevant to several issues. Certainly, the essay indicated Matthew’s close attachmentto his brother as the primary person he “could trust” and “who would always stand by him.” (People’s Trial Exhibit V.) This evidence was constitutionally relevant for the reasons discussed above. (See, e.g., Parker v. Dugger, supra, 498 U.S.at p. 314; Mayfield v. Woodford, supra, 270 F.3d at pp. 929-932; Smith v. Stewart, supra, 140 F.3d at p. 1270; Jackson v. Herring, supra, 42 F.3d at p. 1368.) 285 Moreover, while the school fight evidence tended to show that Michael was the actual shooter, the essay was relevant to contextualize the circumstances ofthe crimes under the prosecution’s theory that Matthew was the actual shooter. The evidence showedthat Matthew loved Michael and that Michael played a very significant role in Matthew’s life. Of course, the shooting only occurred after Dewayne Arnold attacked Michael and attempted to wrest his gun from him, during which a single shot rang out and a lamp crashed. As discussed in Arguments II and III, it could easily have appeared to Matthew that Michael had been shot or was in imminent dangerofbeing shot or otherwise seriously harmed. The evidence ofMatthew’s close relationship to Michael provideda critical, mitigating explanation for why Matthew would react to any threat toward his brother with the explosion ofviolence that occurred. In other words, the evidence tended to makeit less likely that Matthew was simply a ruthless, heartless killer, as the prosecution would have the jury believe, and more likely that he was simply a frightened, emotional teenager whofired his weaponin a panic. At the same time, the evidence helped to rebut the prosecution’s theory that Matthew’s defense of “blaming his brother” for the actual shooting was false, and that his willingness to falsely shift blame to his own brother demonstrated that he washeartless and without remorse. (RT 3437, 3889, 3926-3928.) It illustrated his deep love for his brother and thus tended to show that he would not cast blame on Michaelfor the actual shooting unless Michael was, in fact, the actual shooter. Whileit is true that witnessestestified generally to the lovingrelationship, the essay wasa potent and heartrendingillustration ofthat relationship that the general testimony of outside observers could not capture. Finally, there is no question that the essay would have humanized Matthew and rebutted the prosecution’s efforts to portray him asa heartless killing machine. (See, e.g., People v. Harris (1984) 36 Cal.3d 36, 68-70 [poems defendant wrote while in jail were relevant mitigating evidence]; Mayfield v. Woodford, supra, 270 F.3d at p. 932 [“humanizing” evidence sufficiently mitigating that counsel’s 286 failure to present it amounted to constitutionally ineffective assistance]; Mak v. Blodgett, supra, 970 F.2d at p. 619 [same]; see also Allen v. Woodford (9" Cir. 2004) 366 F.3d 823, 844 [“Defense counsel’s use ofmitigation evidence to complete, deepen, or contextualize the picture of the defendant presented by the prosecution can be crucial to persuading the jurors that the life ofa capital defendant is worth saving”].) It starkly illustrated that Matthew wasboth loving teenager and touchingly naive and immature. In short, it showed that he was a boy deserving ofthe jury’s mercy. (See, e.g., Pen. Code § 190.3.) The essay was thus highly, constitutionally relevant to the jury’s determination ofwhetherthis boy deserved to be putto death. Asto the court’s ruling that this constitutionally relevant evidence was inadmissible hearsay, it was also incorrect. Tothe extentthat the essay showed Matthew “was a sensitive individual who expressedhis feelings in [writing], regardless of its content,” it was not hearsay at all. (People v. Harris, supra, 36 Cal.3d at p. 69.) To the extent that it showed Matthew’s loving relationship with his brother, even if it was hearsay, it was nevertheless admissible under the Due Process Clause (Green v. Georgia, supra, 442 U.S.at p. 97 [exclusion from penalty phase ofhighly relevant evidence on hearsay grounds violates due process]; Rupe v. Wood, supra, 93 F.3d at p. 1440 [exclusion from penalty phase ofhighly relevant polygraph evidence because there were doubts aboutits reliability violated due process]; Paxton v. Ward, supra, 199 F.3d at pp. 1212-1216 [same — exclusion of mitigating polygraph evidence under state evidentiary rules violated Eighth and Fourteenth Amendments]), as well as underthe state ofmind exception to California’s hearsay rule (Evid. Code § 1250; People v. Harris, supra, 36 Cal.3d at pp. 69-70 [to the extent defendant’s poems, written in jail, were offered for truth oftheir content, they fell within state ofmind exception to hearsay rule}; Rufo v. Simpson (2001) 86 Cal.App.4" 573, 591-592 [writings expressing fear and loss of love were admissible under state of mind exception to the hearsay rule].) 287 To be sure, under both provisions, the statement may be excludedifit is unreliable (Rupe v. Wood, supra, 93 F.3d at p. 1440 [while relevant mitigating evidence may not be excluded based on doubts aboutreliability, exclusion of “wholly unreliable” evidence does not offend due process]) or “made under circumstances suchas to indicate its lack oftrustworthiness” (Evid. Code § 1252). Here, however, there wasnothingto indicate that the sentiments expressed in the essay wereunreliable or that it was written under circumstances to indicate its lack oftrustworthiness. Importantly, and contrary to the trial court’s apparent understanding, the mere fact that Matthew wrote the essay after his arrest did not establishits unreliability or lack oftrustworthiness. (People v. Harris, supra, 36 Cal.3d atp. 69-70.) To the contrary, given the circumstances as a whole, it seemsclear that the essay was notwritten for an improper motive. According to several of his former school teachers, Matthew had alwaysbeen a good and motivated student. (RT 3607, 3707, 3710, 3707-3709, 3711-3716, 3719-3720, 3722-3724, 3726, 3732, 3734, 3745-3746, 3749-3750, 3817-3819, 3821-3822.) While in jail, he enrolled in school and had completed many assignments. (RT 3791, 3797-3798.) Noneofhis other assignments were offered into evidence nor was there any suggestion that he had ever written anything to garner sympathyin this case. While the prosecutor embarked on a scathing cross-examination designed to paint Matthew’s academicprogressin jail as nothing more than an attempt to manufacture mitigation, his jail education teacher stoodfast in her testimonythat Matthew seemed very motivated to learn as comparedto other inmates. (RT 3804-3807.) Indeed, based on her knowledge ofMatthew, when the prosecutor asked herif it was possible that he was simply “motivated by just the situation presented here to bring you to court andtestify on his behalf,” she replied, “I don’t think that that would even enter his mind.” (RT 3806-3807.) Furthermore, the loving sentiments expressedin the letter were corroborated generally by several witnesses. (RT 3612, 3650, 3679, 3755.) Moreover, contrary to the trial court’s 288 observation, there was nothing expressedin the letter that could be construed as “self-serving.” (RT 3810.) It did not address the crimes, attempt to exculpate or mitigate his role in them, and did not otherwise express anything obviously intended to garner sympathy. (Compare, e.g., People v. Kraft (2000) 23 Cal.4™ 978, 1073-1074 [trial court properly ruled that letters defendant wrote whilein jail were unreliable hearsay because they containedself-serving protestations of innocence and correctional officer testified that defendant had expressed statements regarding admission of evidence of otherjail conductin penalty phase].) Given the evidence as a whole, to the extent that the essay was offered for the hearsay purposeofproving the truth ofthe sentiments expressed therein, it was nevertheless admissible under Evidence Code section 1252 and/or the Due Process Clause. (See People v. Harris, 36 Cal.3d at p. 70 [trial court erred in excluding poems defendant wrotein jail as self-serving “pitch for sympathy” because circumstances as a whole “militate[d] against the possibility of a motive to manufacture self-serving evidence”].) The court’s exclusion ofthe evidence violated Matthew’s rights under the Eighth and Fourteenth Amendments. To be sure, counsel did not invoke the state ofmind exception to the hearsay rule. Any argument that counsel therefore waived Matthew’sright to challenge the error on appeal must be rejected, however. Onceagain,it is well settled that counsel is not obligated to make futile objections. (See, e.g., People v. Hamilton, supra, 48 Cal.3d at p. 1189 and n. 27; People v. Abbaszadeh, supra, 106 Cal.App.4” 642, 648.) The court madeit abundantly clear that it believed: a) the evidenceto be irrelevant, notwithstanding the hearsay rule; and b) that it was “self-serving,” meaning unreliable, and therefore would not be admissible under the state ofmind exception to the hearsay rule. Hence, even if counsel had invoked the state of mind exception to the hearsayrule,it is clear that it would 289 have been futile because the court would nevertheless have excluded the evidence.?” C. The Error Require That Matthew’s Death Sentence Be Reversed. Becausethe court’s exclusion ofthe mitigating evidence violated Matthew’s federal constitutional rights, respondent bears the burden ofproving the errors harmless beyond a reasonable doubt. (Sullivan v. Louisiana, supra, 508 USS.at p. 279; Yates v. Evatt, supra, 500 U.S. at p. 404; Chapman v.California, supra, 386 U.S. at p. 24; People v. Lucero, supra, 44 Cal.3d 1006, 1032.) Respondentwill be unable to carry its burden. Asalready discussed in detail in Argument VIII, the penalty phase case was a remarkably close one. Given the closeness ofthe penalty phase case and the relevance ofthe excluded evidence, respondent simply cannot prove beyond a reasonable doubtthat the exclusion ofthe evidence had noeffect on the jury’s verdict. (See,e.g., Mayfield v. Woodford, supra, supra, 270 F.3dat pp. 929-932 [where defendant murdered three people, two ofwhom had sworn out a complaint against him and one ofwhom was a witnessto his crime, but where both aggravating and mitigating evidence strong, counsel’sfailure to present humanizing evidence ofdefendants’ loving relationships was prejudicial under Strickland standard].) The penalty judgment mustbe reversed. 7 Asto counsel’s failure to cite the Due Process Clause in support ofthe offered evidence, Matthew reminds the Court thatthe trial court granted counsel’s motion to “federalize”all motions and objections under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. (CT 535.23-535.24; RT 126.) 290 XI. THE TRIAL COURT’S PROVISION OF AN INCOMPLETE INSTRUCTION ON VICTIM IMPACT EVIDENCE VIOLATED STATE LAW AND MATTHEW’S FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTRIGHTSTO A FAIR PENALTY TRIAL AND A RELIABLE PENALTY JUDGMENT AND REQUIRES REVERSAL. A. Introduction. Given the dearth of aggravating evidencein this case, the victim impact evidence was critical componentofthe prosecution’s case for death. The prosecutor requested a specialinstruction pinpointing the victim impact evidence as a circumstanceofthe crime underfactor (a). (CT 753.) Matthew’s counsel objected on the groundthat it was an improper pinpoint instruction. (RT 3564, 3698-3699.) The court overruled the objection and incorporated the instruction into CALJIC No.8.85, which it provided to the jury. (CT 753, 782; RT 3563- 3564, 3699, 3864.) The instruction provided, “(a) The circumstancesofthe crimes ofwhich the defendant was convicted in the present proceeding and the existence of any special circumstance foundto be true. As part ofthe circumstances ofthe offense underfactor A, you may also consider the testimony offered in this penalty phaseportion ofthe trial concerning the impact ofthe crimes on thefamily and Sriends ofthe victim.” (CT 782, emphasis supplied.) As set forth below,the court erred. It should either have refused the instruction outright as an improper pinpoint instruction or it should have provided a complete and accurate instruction on the limitations on, and appropriate use of, victim impact evidence. B. The Special Victim Impact Instruction Was Incomplete, Improper, And Permitted The Jury To Consider Improper Evidence In Aggravation In Violation Of State Law And Matthew’s Rights Under the Fifth, Eighth, And Fourteenth Amendments. 291 In Booth v. Maryland (1987) 482 U.S.496,the United States Supreme Court held that the Eighth Amendmentprohibited a capital sentencing jury from considering victim impact evidence. At issue in that case were two types ofv ictim impact evidence: 1) the personal characteristics ofthe victims and the impact of the crimes on their families; and 2) the family members’ opinions and characterizations ofthe defendantand his crimes, and their view ofthe approp riate sentence. (Id. at pp. 507-510.) In Payne v. Tennessee, supra, 501 U.S. 808, the Court partially overruled Booth. The Court held "that ifthe State chooses to permit the admission ofvic tim impact evidence and prosecutorial argument on that subject, the Eighth Amendmenterects no per se bar.” (Payne v. Tennessee, supra, 501 U.S.at p. 827.) However, the Court took care to note that its holding encompassed only the first category ofvictim impact evidence addressed in Booth, not the second category of evidencerelating to the family members’ views on the appropria te punishment or characterizations ofthe defendant and his crimes. (id. at p. 830, n. 2.) Following Payne, in People v. Edwards,supra, 54 Cal.3d 787, this Court held that although victim impact is not expressly enumerated as a statutory aggrav ating factor, such evidenceis generally admissible as a circumstance ofthe crime under section 190.3, factor(a). (Id. at p. 833.) “This holding was not withoutlimits, however, and ‘only encompasses evidencethatlogically shows the harm caused by the defendant.’ (Ibid.) ” (People v. Brown, supra, 33 Cal.4" at p. 396, emphasis supplied; accord Payne v. Tennessee, supra, 501 U.S.at p. 819 [victim impact limited to “harm ca used by” defendant].) Furthermore, the use of victim impact evidenceis limited b y the fundamental principle that penalty determinations must be based on reas on rather than emotion or vengeance. (See,e.g., Gardner v. Florida, supra, 430 U SS.at p. 358 [“it is ofvital importance. . . that any decision to impose the death sente nce be, and appear to be, based on reason rather than caprice or emotion”]; Peopl e v. Haskett (1982) 30 Cal.3d 841, 864 [in every capital case, “the jury must face its 292 obligation soberly and rationally, and should not be given the impression that emotion may reign over reason”]; Drayden v. White (9th Cir. 2000) 232 F.3d 704, 712-713 [punishmentis “not to exact revenge on behalf ofan individual victim”], cert. denied 532 U.S. 984 (2001).) Finally, as this Court and several others have recognized, that part ofthe Booth decision prohibiting consideration ofthe family members’ views on the appropriate sentence survived Payne. (See, e.g., People v. Pollock (2004) 32 Cal.4th 1153, 1180; People v. Smith (2003) 30 Cal.4th 581, 622; Hain v. Gibson (10™ Cir. 2002) 287 F.3d 1224, 1239 [andauthorities cited therein].) If, as this Court held in Edwards, supra, the statutory language of section 190.3 clearly contemplates consideration ofvictim impact evidence as a circumstance ofthe offense under factor (a), then obviously the standard instruction on factor (a) was broad enough to encompassthat evidence. Hence, applying this Court’s reasoning to other requested penalty phase instructions, the standard instruction was sufficient to encompass victim impact evidence. (See, e.g., People v. Fauber (1992) 2 Cal.4™ 792, 865.) More importantly, however, the victim impactinstruction the court provided in this case was “flawedin that it was argumentative —i.e., it merely highlighted certain aspects ofthe evidence withoutfurtherilluminating the legal standards at issue.” (Ibid., emphasis supplied; accord People v. Musslewhite (1998) 17 Cal.4™ 1216, 1269; People v. Noguera (1992) 4 Cal.4™ 59, 648.) In other words, it merely highlighted the victim impact evidence without further ~ illuminating the legal limitations on the use of such evidence, discussed above. Forthese reasons,the trial court should have refused the instruction outright as an improperpinpoint instruction. | However, having determined to provide a special instruction on victim impact evidence, the court wasat least required to instruct accurately and completely on the legal principles relating to that issue. (See, e.g., People v. Montiel, supra, 5 Cal.4" at p. 942 [once court undertakesto instruct on particular 293 issue, it must do so accurately and completely}; People v. Melton, supra, 44 Cal.3d at p. 768 [same].) In other words, the court had the duty to ensure that the instruction it provided was not“flawed . . . by merely highlight[ing] certain aspects ofthe evidence withoutfurther illuminating the legal standards at issue.” (People v. Fauber, supra, 2 Cal.4™ at p. 865; People v. Musslewhite, supra, 17 Cal.4” at p. 1269; People v. Noguera, supra, 4 Cal.4" at p. 648.) Indeed, other jurisdictions impose a sua sponte duty ontrial courts to provide complete and accurate instructions on the limitations on, and appropriate uses of, victim impact evidence wheneverit is introduced. “Becauseofthe importance ofthe jury’s decision in the sentencing phase of a death penalty trial, it is imperative that the jury be guided by proper legal principlesin reaching its decision.” (Tumer v. State (Ga. 1997) 486 S.E.2d 839, 842.) “Allowing victim impactevidenceto be placed before the jury without proper limiting instructions hasthe clear capacity to taint the jury’s decision on whether to impose death.” (State v. Hightower (N.J. 1996) 680 A.2d 649, 661.) “Therefore,a trial court should specifically instruct the jury on how to use victim impact evidence.” (State v. Koskovich (N.J. 2001) 776 A.2d 144, 181; accord State v. Nesbit (Tenn. 1998) 978 S.W.2d 872, 892; Turner v.State, supra, 486 S.E.2dat p. 842; Cargle v. State (Ok App. Ct. 1995) 909 P.2d 806, 829; see also Commonwealth v. Means(Pa. 2001) 773 A.2d 143, 159 [recommending delivery ofa cautionary instruction].) An appropriate instruction in California would read as follows: Victim impact evidence is simply another method of informing you about the nature and circumstancesofthe crime in question. You may consider this evidence in determining an appropriate punishment. However, the law does not deem thelife of one victim more valuable than another; rather, victim impact evidence shows that the victim, like the defendant, is a unique individual. Your consideration must be limited to a rational inquiry into the culpability ofthe defendant, not an emotional response to the evidence. 294 You may only consider harm that was logically caused by the defendant. You must not consider in any way what you mayperceiveto be the ~ opinionsofthe victim’s survivors or any other persons in the community regarding the appropriate punishmentto be imposed. The first paragraph ofthis instruction accurately states the law and duplicates the instruction suggested by the Supreme Court ofPennsylvania in Commonwealth v. Means, supra, 773 A.2d at p. 159. (See, e.g., Gardner v. Florida, supra, 430 U.S.at p. 358; People v. Haskett, supra, 30 Cal.3d at p. 864; Drayden v. White, supra, 232 F.3d at pp. 712-713.) The second paragraph accurately states the law andis taken verbatim from this Court’s decisions, cited above. (People v. Brown, supra, 33 Cal.4” at p. 396; People v. Edwards, supra, 54 Cal.3d at p. 835; see also Payne v. Tennessee, supra, 501 U.S. at p. 819.) The last paragraph accurately states the law andis taken from on State v. Koskovich, supra, 776 A.2d at p. 177. (See, e.g., People v. Pollock, supra, 32 Cal.4th at p. 1180; People v. Smith, supra, 30 Cal.4th at p. 622; Hain v. Gibson, supra, 287 F.3d at p. 1239 [admission of family members’ desire that death be imposed violated Eighth Amendment].) Neither the special pinpoint instruction on victim impact evidence, nor any of the other instructions provided, addressed the foregoing principles. Noneofthe instructions told the jurors why victim impact evidence was introduced. None informedthejurors ofthe critical causation requirement for consideration of victim impact evidence. Nonecautioned the jurors against utilizing the evidence to arrive at a decision based on emotion or vengeance rather than reason. None warned the jurors not to consider what they may perceive to be the opinions ofthe victim-impact witnesses. Rather, the court’s incomplete and inaccurate instruction simply permitted the jurors to and consider the victim impact evidence without limitation and thus for inappropriate purposes. 295 That the jurors likely did just that is clearly demonstrated by the prosecutor’s argument. As discussed in Argument IX-C,the prosecutor argued victim impact evidence for which there was no causal link to the shooting — Rodney James’s death two years after the shooting. (RT1871, 3885-3886.) Similarly, the prosecutor clearly insinuated that the victims’ families wanted Matthewto be put to death. (RT 3919.) Moreover, much ofthe prosecutor’s argument was a call for vengeance(see, e.g., RT 3884 [“this is an eye for an eye three times. Hetried to take five eyes. This is not an even trade. Butas I said,it is all we can do”]; RT 3886-3887 [jury should impose death penalty on Matthew because he imposedit on victims]; RT 3887, 3884-3885 [value of onelife calls for 39 66,taking of another; giving life is “appropriate” “price” for takinglife; one life should “cost” another]) and for emotion to control over reason (see, e.g., RT 3886- 3887 [referring to “butchery” and “slaughterhouse”}, RT 3892 [Watchman’s four “orphans” will have to be told that their mother was “butchered”’]). At bottom,the court should either have refused the special victim impact instruction in its entirety or ensured that the instruction it did provide was accurate and complete. By taking the middle ground andproviding an instruction that highlighted the victim impact evidence but failed to explain the limitations on the use ofthat evidence, the court gave a stamp ofjudicial approval to unlimited consideration ofall ofthe victim impact evidence and argument, including the improper considerations advanced by the prosecutor. The error thus permitted the injection of improper considerationsinto the jury’s penalty determination in violation of state law and Matthew’srights to a fair penalty phase trial and a fair and reliable capital penalty determination underthe Fifth, Eighth, and Fourteenth Amendments. (See, e.g., (Booth v. Maryland, supra, 482 U.S.at pp. 507-510; Hain v. Gibson, supra, 287 F.3d at p. 1239; see also, e.g., Sochor v. Florida (1992) 504U.S. 537, 542; Stringer v. Black (1992) 503 U.S. 222, 230-231; Clemonsv. Mississippi (1990) 494 U.S. 738, 752; Sanders v. Woodford (9™ Cir. 2004) 373 F.3d 1054, 1066.) 296 Cc. Reversal Is Required. Becausetheerror violated the federal constitution, respondent bears the burden ofproving it harmless beyond a reasonable doubt. (Chapman v. California, supra, 381 U.S. 18, 24.) Respondent cannot carry its burden. Once again, as discussed in Argument VIII, the penalty phase was extremely close. The victim impact evidence wasa critical componentofthe prosecution’s otherwise weak case for aggravation and the prosecutor exploited the instructional omission by relying on victim impact that was unsupported by any causallink to the shooting and for other inappropriate purposes. Onthis record, the error cannot be considered harmless. Matthew’s death sentence must be reversed. XII. THE CUMLATIVE EFFECT OF THE ERRORS REQUIRE REVERSAL OF THE PENALTY JUDGMENT. Onceagain, the prosecution offered no evidence in aggravation apart from the bare facts ofthe underlying convictions and the effect ofthe crimes on the victims and their families. In other words, the penalty judgment was based primarily on the jurors’ guilt phase verdicts. Underthe circumstances, anyerrorin the guilt phase oftrial carried over into the penalty phase and requiresreversal of the penalty judgment. Certainly, the cumulative effect of all ofthe errors that occurred throughoutthetrial was prejudicial, violated Matthew’s rights to a fair penalty trial and a reliable penalty judgment as guaranteed by the Eighth and Fourteenth Amendments, and requires reversal. A. Reversal OfAny One OfThe Convictions Requires Reversal Of The Penalty Judgment. Ifthe Court agrees that even one ofthe convictions requires reversal, the penalty judgment mustalso be reversed even ifthe Court otherwise affirms the remaining convictions and upholdsthe true finding on the special circumstance 297 allegation. This is so because the sheer numberofconvictions was the heart ofthe prosecution’s case for death. As the prosecutor argued,“aggravating is something over and abovethe bare essentials to make out the charges. It makes it worse than the bare minimum. AndI think that's one thing that leapsrightout, is to be a multiple murder, you only haveto kill two people and only one has to be murder in the first degree. Here there's three first-degree murders. And it doesn't stop there, he -- you foundthat he attempted to murder two other people andhis attempt was willful, deliberate and premeditated and he used a firearm in each of those offenses, so is this case aggravated?” (RT 3890.) Indeed, “he’s been convicted of murdering two more people than Richard Allen Davis, for Christ’s sake.” (RT 3920.) Of course, becauseall ofthe convictions constituted “circumstancesofthe crimes,” the jurors were required to consider them all in determining the appropriate penalty. (Pen. Code § 190.3, subd.(a).) That the numberof convictions was critical to the penalty phase judgment is amply demonstratedby thetrial judge’s discussion ofthe relevant aggravating factors. In denying the application to modify the death verdict, the trial judge emphasized the fact that Matthew had been convicted ofthree first-degree murders, the third ofwhich was “an incredibly strong aggravating factor beyond the normal circumstancesthat the special circumstance would require.” (RT 3974.) Furthermore, “the attemptto kill at least two other human beings beside the three who were killed is a strong aggravating factor.” (RT 3975.) Hence, each conviction was offered and relied upon as an aggravating factor or circumstance. If the Court determines that any ofthose convictionsis invalid and must be reversed, then its use as an aggravating circumstanceat the penalty phase violated the Eighth Amendment. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578, 585 [it would violate Eighth Amendmentto allow “death sentence to stand although based in part on a reversed conviction”}; Saunders v. Woodford (9" Cir. 2004) 373 F.3d 1054, 1058-1067 [and authorities cited therein — in weighingstates like California, reliance on any one invalid aggravating 298 circumstance violates Eighth Amendment; wherestate court set aside two special circumstance findings, jurors’ consideration ofthem at penalty phase — which was required under Penal Code section 190.2, subdivision(a) — thus violated the Eighth Amendment; violation was not harmless despite the existence oftwo remaining, valid special circumstance findings, and hence the penalty judgment required reversal].) Given the wealth of mitigating evidence, the dearth of aggravating evidence, and the prosecutor’sreliance onall ofthe convictions in aggravation, respondentwill be unable to prove the error harmless beyond a reasonable doubt. (Saunders v. Woodford, supra, at pp. 1062-1064 [and authorities cited therein — respondent bears burden ofproving consideration of invalid aggravating circumstance under California death penalty statute harmless beyond reasonable doubt].) Hence, reversal of any one ofthe convictions requires reversal ofthe penalty judgment. B. The Errors Committed In The Guilt Phase Require Reversal Of The Penalty Judgment Even If They Do Not Require Reversal OfAny OfThe Convictions. For the samereasons, if the Court agrees that errors occurredin the guilt phase, as set forth in Arguments I through VI, but concludes that they do not warrant reversal of any ofthe convictions, they nevertheless had a prejudicial impact on the penalty judgment. Even assuming,for instance, that the jurors would not have had reasonable doubt regarding Matthew’s guilt of the crimes in the absence ofthoseerrors, they surely would have had lingering doubt regarding his guilt in their absence. For example, had the jurors received complete and accurate instructions on heat ofpassion and provocation andtheir relationship to malice and premeditation, it is more than reasonably possible — at the very least — that they would have hadlingering doubts that he was “guilty” ofpremeditated murder and attempted murder, for all of the reasons discussed in Arguments II and 299 III. Similarly, had the jurors received clear and accurate instructions requiring separate findings that Matthew intendedto kill each individual victim, it is more than reasonably possible that they would have had lingering doubts ofhis “guilt” of all ofthe crimes, forthe all ofthe reasons discussed in Argument IV. Had the brothers been tried separately, it is more than reasonably possible that the jurors would have had lingering doubts that Matthew wasthe actualkiller, for all of the reasons discussed in Argument I. The cumulative effect of the guilt phase errors thus severely undercut the powerofthe mitigating circumstances ofthe case, not only in terms oflingering doubt, but also as to other mitigating factors relating to the circumstancesofthe crimes (factor (a)), whether or not Matthew committed the crimes while underthe influence ofan emotional disturbance (factors (d) and (k)), whether or not Matthew committed the crimes under circumstances which he believed extenuated his conduct, such as his reasonable belief that the victims engaged in provocation by brutally beating his mother (factors (f), (e), and (k)), and whether or not Matthew wasan accomplice to the crimes(factor (j)). At the same time, the cumulative effect of the guilt phase errorsartificially inflated the circumstancesin aggravation, such as the allegedly “cold-blooded”nature ofthe crimes (RT 3925, 3975), Matthew’s alleged role as the actual shooter (RT 3652, 3884, 3886-3887, 3890, 3921, 3926-3928), Matthew’s alleged intent to shoot and kill all ofthe victims and more (RT 3920-3921), and the commission ofthe crimes for an allegedly trivial motive based on what actually occurred, without regard to what Matthew actually believed had occurred (RT 3886). The cumulative effect of the guilt phase errors thus violated Matthew’s state and federal constitutional rights to a fair penalty phasetrial and a reliable penalty phase verdict. (See, e.g., Arizona v. Fulminante (1991) 491 U.S. 279, 301-302 [erroneousintroduction of evidence at guilt phase had prejudicial effect on sentencing phaseofcapital murdertrial]; In re Marquez (1992) 1 Cal.4" 584, 605, 608 [error was harmless in guilt phase but prejudicial in penalty phase]; Smith v. Zant (11" Cir. 1998) 855 F.2d 712, 721-722 [erroneously admitted 300 confession harmless in guilt phase, but prejudicial on question ofpenalty]; see also People v. Brown, supra, 46 Cal.3d at p. 466 [error occurring at guilt phase requires reversal ofpenalty judgment ifthere is a reasonable possibility that the jury would have rendereda different verdict absent the error]; People v. Hamilton (1963) 60 Cal.2d 105, 136 [recognizing that error in guilt phase whichis not prejudicial may prejudice penalty determination]; U.S. Const., Amend. V, VIII, XIV.) Matthew’s death judgment must be reversed. C. The Cumulative Effect OfThe Guilt And Penalty Phase Errors Requires Reversal OfThe Penalty Judgment. Finally, given the closeness of the case discussed in Argument VIII, the cumulative effect of any combination of guilt and/or penalty phase errors violated Matthew’s right to a fair penalty phasetrial and a reliable penalty judgment. (See, e.g., Chambers v. Mississippi, supra, 410 U.S. 284 [cumulative effect of errors violated defendant’s rightto fair trial]; People v. Hill, supra, 17 Cal.4™ at pp. 844- 847 [same]; Alcala v. Woodford (9Cir. 2003) 334 F.3d 862, 883, 893 [same ~ “?in those cases in which the government’s case is weak, a defendantis more likely to be prejudiced by the effect of cumulative errors’”]; Mak v. Blodgett, supra, 970 F.2d at pp. 622-625 [same — penalty phase].) Matthew’s death sentence mustbereversed. XII. MATTHEW’S DEATH SENTENCEIS CRUEL AND/ORUNUSUAL BECAUSEIT IS GROSSLY DISPROPORTIONATETO HIS PERSONAL CULPABILITY. The Eighth Amendmentto the United States Constitution prohibits the imposition of cruel and unusual punishment. Similarly, Article 1, section 17 of the California Constitution prohibits the imposition of cruel or unusual punishment. Although it is the function ofthe legislative branch to define crimes and prescribe punishments (People v. Navarro (1972) 7 Cal.3d 248, 258), the powerto prescribe punishment “remains ultimately circumscribed by the constitutional provision 301 forbidding the infliction of cruel or unusual punishment ....” Un re Lynch (1972) 8 Cal.3d 410, 414.) “It is the difficult but imperative task ofthe judicial branch, as coequal guardian of the Constitution, to condemn any violation ofthat prohibition.” (Ibid.; accord People v. Anderson (1972) 6 Cal.3d 628, 640.) A punishmentviolates these proscriptions not only whenit is inflicted in a cruelor unusual manner, but alsoifit is “grossly disproportionate to the offense for which it is imposed.” (People v. Dillon (1983) 34 Cal.3d 441, 478; see also In re Lynch, supra, 8 Cal.3d at p. 424; Harmelin v. Michigan (1991) 501 U.S. 957, 1004-1005, conc. opn. ofKennedy,J.; Solem v. Helm (1983) 463 U.S. 277, 292; Enmund v. Florida (1982) 458 U.S. 782, 787; Ramirez v. Castro (9™ Cir. 2004) 365 F.3d 755.) In determining whether imposition ofthe death penalty is cruel or unusual, this Court has heldit will not engage in “intercase” proportionality review by comparing the sentenceto other capital cases because such review is not required by the Eighth Amendment. (See,e.g., People v. Mincey, supra, 2 Cal.4"™ at p. 476, citing Pulley v. Harris (1984) 465 U.S. 37, 51-54; but see Argument XVIII-C-7, below.) However, the sentenceis subject to “intracase” review to determine whether the death penalty is disproportionate to the defendant's personal culpability. (See, e.g., People v. Cole (2003) 33 Cal.4™ 1158, 1234; People v. Weaver (2001) 26 Cal.4" 876, 989; People v. Clark (1993) 5 Cal.4" 950, 1039; People v. Mincey, supra, 2 Cal.4™ at p. 476.) In making this determination, a reviewing court must examinethe nature of the offense, not only in the abstract, but how it was actually committed. (People v. Dillon, supra, 34 Cal.3d at p. 479; In re Foss (1974) 10 Cal.3d 910, 919; Solem v. Helm,supra, 463 U.S.at p. 292; Enmundv. Florida, supra, 458 U.S. 782.) This inquiry must address “thetotality ofthe circumstances surrounding the commission ofthe offense in the case at bar, including such factorsas its motive, the way it was committed, the extent ofthe defendant’s involvement, and the consequencesofhis acts.” (People v. Dillon, supra, at p. 479; In re Lynch,supra, 8 Cal.3d t p. 425 [“nonviolence or absence of a victim”is not “a prerequisite to a 302 finding of disproportionality”].) In addition, a reviewing court must examine the offender to determine whether the punishmentis “grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.; accord re Rodriguez (1975) 14 Cal.3d 639, 655; In re Foss, supra, 10 Cal.3d at p. 918, 923.) Underthis analysis, the Court in People v. Dillon, supra, held that imposition ofa life with the possibility ofparole term for first-degree murder constituted cruel and unusual punishment when imposed on a 17-year-old white defendant. In Dillon, the defendant and several friends decided to steal marijuana from the victim's field. When he and his companions wentto the barricaded and guardedfield, they encountered the armed victim, who ordered them off ofhis property and warned them that he would shoot them ifthey came back. (Id. at p. 451.) His friends left, but the defendant stayed behind and hid. When he emerged, the victim saw him, aimed the shotgun at him, and ordered him to leave his property. This time, the defendantleft. (Ibid.) Undeterred, however, the defendant returned a few weekslater with his brother. After hearing a shotgun blast, they left the property. (People v. Dillon, supra, 34 Cal.3d at p. 451.) A few weekslater, the defendant gathered a group offriends and constructed a more organized plan for returning to the victim’s property and assaulting and robbing him. (People v. Dillon, supra, 34 Cal.3d at p. 451.) Initially, they discussed binding the victim and hitting him over the head. (Ibid.) On the date ofthe planned robbery, the defendant met his companionswith a .22 caliber semi-automatic rifle and a map ofthe area. Several ofthe other young men were armed with shotguns, baseball bats, and knives. (Ibid.) They also brought bindings with whichto tie up the victim and his guards. (Ibid.) Whenthe young menarrived at the victim’s field, they saw one ofthe guards tending to the plants and waited for an opportunetimeto act. (Id. at p.451.) Eventually, some ofthe young menleft, but the defendant remained 303 behind with others. As oneofhis friends was returning, he accidentally discharged his shotgun twice. (Id. at pp. 451-452.) While the young men were discussing their next move, the victim approached them with a shotgun. (Id.at p. 452) Whenthe defendant saw him approach, he began rapidly firinghisrifle at the victim, shooting him nine times and killing him. (Ibid.) The defendant was convicted of attempted robbery andfirst-degree felony murder and sentenced to life with the possibility ofparole. He appealed on the ground,inter alia, that the life term was cruel or unusual as applied to him. Based onits prior decisions as well as those ofthe United States Supreme Court, this Court agreed. (Id. at pp. 479-487.) The Court first acknowledged that robbery felony-murderis a dangerous crime. (People v. Dillon, supra, 34 Cal.3d at p. 479.) Nevertheless, turning to the mannerin which the crime was committed, the Court observed that the picture that emerged from thetrial testimony wasthat the defendant’s state ofmind evolved from “youthful bravado”to “fear,” to “panic” (Id. at p. 482.) As to the defendant himself, the Court emphasized that he was only 17 years old, unusually immature even for a 17-year-old, and had no prior record. (Id. at pp. 482-483.) The Court concluded that the crime “was a response to a suddenly developing situation,” the defendant was a teenager who “was not the prototype of a hardened criminal who poses a gravethreat to society,” and the punishment equated defendant's crime with “a carefully planned murder executed in cold blood after calm and mature deliberation.” (Id. at pp. 487-488.) On these grounds, the Court concluded that the life with possibility ofparole sentence for first-degree felony murder was grossly disproportionate to the defendant’s individual culpability and reduced his conviction to second-degree murder. (Ibid.) This Court has consistently adhered to the teachings ofDillon and has never suggested that it was wrongly decided. (See, e.g., People v. Cole, supra, 33 Cal.4" at p.1234; People v. Weaver, supra, 26 Cal.4™ at p. 989; People v. Clark, supra, 5 Cal.4™ at p. 1039; People v. Mincey, supra, 2 Cal.4™ at p. 476.) 304 Matthew’s case presents an even more compelling case of disproportionality than Dillon. Matthew, unlike the defendant in Dillon, did not coolly and carefully construct a plan to go the victims’ home armed with weapons,do violence to them, and rob them. To the contrary, as discussed in Arguments II and III, his motive to go to the victim’s home armed with weapons was born in an intense emotion provoked by his hysterical mother’s exaggerated stories of having been brutally assaulted and her insistence that he confront her attackers and retrieve her belongings. (See, People v. Dillon, supra, 34 Cal.3d at p. 479 [motive or lack thereofrelevant to cruel and unusual punishment determination].) Moreover, as further discussed in ArgumentII, the jury’s verdicts reflect a finding that the boys did not go to the apartmentintendingto kill. (Peoplev. Dillon, supra, 34 Cal.3d at p. 482 [jury’s determination of facts regarding defendant’s state ofmind at time of offense considered an important factorin determining 25-yar-to-life sentence for first-degree felony murder cruel and unusual based on nature of offense as committed and offender].) Like the defendantin Dillon who formed the intent to kill only when the victim advanced on him and his companionswith a shotgun, but only after they had entered the victim’s property armed with guns and fired them, the shooter in this case formed the intent to kill only when Dewayne Arnold engaged in a physical confrontation with Michael, grabbed his gun, and a shot rang out. Like the Dillon defendant, the shooter’s mental state evolved from one ofyouthful bravado to fear to panic;like the Dillon shooting, the instant shooting was a “responseto a suddenly developing situation.” To be sure, Matthew recognizesthat, unlike the Dillon jury, his jury found that he premeditated the shootings. However, it is equally true that there were several crucial considerations regarding Matthew’s culpability that the jurors in his case either never entertained or about which they were misled. 305 Significantly, the Dillon jury convicted the defendant of felony-murder and rejected a finding ofpremeditation only after it had received instructions on voluntary manslaughter. (Id. at pp. 462.) Indeed, during their deliberations, the Dillon jury specifically inquired into whetherit could return a verdict of second- degree murder or manslaughterif it found that the killing occurred during the course ofan attempted robbery. (Id. at p. 484.) Of course, the trial judge replied that it could not. (Ibid.) Here, in stark contrast and as discussed in Arguments II and III, the jurors were given no instructionsat all on voluntary manslaughter; they were given flawed and incomplete instructions regarding heat ofpassion and provocation, what those concepts mean, and howthey relate to malice and premeditation; and the prosecutor distorted the meaning ofthe flawed and incomplete instructions that the jurors were provided. Furthermore, Matthew’s jurors were painted a distorted, or at the very least completely one-sided, picture ofthe manner in which the shooting was committed. Throughout his arguments in both the guilt and penalty phases, the prosecutor twisted and misstated the evidence to portray Matthew as a cold-blooded predator who moved about the room taking careful aim and shooting each victim, intending to kill them all, and who would have killed more if only he had not run out of ammunition. Regrettably, defense counseldid little if anything to marshal and argue the substantial evidence that would have corrected this picture, or at the very least would have provided the jurors with a reasonable andfar less aggravating alternative scenario. Asdiscussed in Argument II-C-2, the evidence — largely ignored by counsel in their arguments — strongly suggested that the shootings of Trudell, James, and John were the unintentional byproducts ofthe explosion ofviolence directed toward Arnold and Watchman, whose conduct wascertainly no less provocative than the victim’s in Dillon. Once again, by all accounts and according to the photographsofthe scene, the room in which the shooting occurred was extremely small and crowded. (RT 2035, 2235, 2304-2305; People’s Trial Exhibits A-L.) 306 Trudell, John, and James wereall located directly behind the couch on which Arnold and Watchman were seated and at which the gunfire was directed. (RT 2052-2053, 2266, 2269-2270, 2330, 2362-2366, 2330, 2434, 2437, 2523-2525, 2529-2530, 2744-2745, 2786-2787, 2809-2812, 3109-3110, 31903140, 3160- 3161; People’s Exhibit 33; Deft. A’s Exhibit A.) While Arnold was shot seven times and Watchman shot three times, Beulah John and Rodney James were each shot only once and Leslie Trudell, who was closest to the couch, was shot only twice and virtually in the same spot. (RT 1956-1957, 2270, 2437, 2523, 2437; People’s Exhibit 33.) Asfurther discussed in ArgumentII, while the prosecutor made much of the locations of the bloodstains “all around the room” to argue that the shooter must haveintentionally aimed at and shot each individual victim (RT 3283-3284, 3444), in truth, the locations ofthe bloodstains, and the witness testimony, correspondedto the victims having been located directly behind the couch,in the firing line ofArnold and Watchman, when they were shot. (People’s Exhibits 31 and 33; Deft. A’ Exhibit H; RT 2348, 2523-25254, 2529-2530, 2693-2694, 2745; Deft. A’s Ex. A.) Similarly, while the prosecutor argued that all of the victims had been shot in vital spots rather than in their extremities (RT 3441), in truth, Beulah John wasshotin the leg and Rodney James was shot in the arm or shoulder (RT 2270, 2437, 2523, 2744-2745). While the prosecutor argued that John and James were each shot twice (RT 3292, 3441-3442), in truth, each was shot only once (RT 2270, 2437, 2523, 2557, 2568-2569). In fact, contrasted with the number and locations of the gunshot wounds to Arnold and Watchman, the number and locations of the woundsto the other victims supported rather thanunderminedthe inferencethat they were shot unintentionally in the course of shooting Arnold and Watchman. Similarly, while it is true that the jurors found that Matthew was the actual shooter, Matthew submits that this finding should beentitled tolittle weight in the Court’s assessment ofwhether the death penalty is cruel and unusual in this case. 307 As discussed in ArgumentI, the evidence pointing to Michaelas the actual shooter was even stronger than that pointing to Matthew. Hillary Leonesio actually saw Michaelfire his gun about three times and shoot Arnold. (RT 3109-3110, 3139- 3140, 3160-3161.) Similarly, Lea Coss simultaneously saw a flash and heard a shot from Michael’s position, while Matthew was still standing several feet away, andtestified at the preliminary hearing that Michael had shot Dewayne Arnold. (RT 2809-2812.) Raymond Douglas was standing only a few feet from Michael whenhe hearda shot and saw flash from his position, while Matthew wasstill standing several feet away. (RT 2266, 2362-2366.) None ofthe witnesses claimed to have seen the second gunman,later identified as Matthew,fire his weaponor to have seen flashes or heard shots from his position. The only evidence undermining the eyewitness testimony that Michael was the shooter was the testimony ofMartin Jones and Raymond Douglas describing his gun as a shotgun. (RT 2043, 2285, 2318.) However, even that testimony was weak — certainly too weak to put a young man to death. While Martin Jones claimed that he was certain Michael’s gun was a shotgun, he was just as certain that a shotgun had beenfired in that room because he was familiar with the sound and smell. (RT 2044, 2046-2047, 2049, 2477- 2478, 2500, 2508.) Of course, despite his expression of certainty in this regard, the ballistics evidence established that a shotgun wasneverfired in that room. (See, e.g., RT 2587, 2590-2591, 2884.) Similarly, Raymond Douglas’s description ofMichael’s gun as a shotgun was inconsistent with his testimony suggesting that Michaelfired his gun. Underthe circumstances,the most reasonable explanation for the jury’s determination that Matthew wasthe shooter wasnot the strength ofthe evidence, but rather the joinderofthe brothers’trials, the tandem accusations ofthe prosecutor and Michael’s counsel, and Michael’s counsel’s consistent, pervasive efforts to twist and misstate the evidence, as discussed in Argument I. In any event, even accepting the jury’s determination 308 that Matthew wasthe actual shooter, Dillon makes clear that even a life with parole sentence may be disproportionate to the culpability of an actual killer. There is no question that the result ofthe shooting was horrific andtragic. Butthe result of the shooting should not blind the Court — as it evidently blinded the jury — to the cause of the shooting or to the value ofMatthew’slife. “The facts of a savage murder generate a powerful drive, almost a juggernautfor jurors, and indeed for judges, to crush the crime with the utmost condemnation available . . Butit is the task and conscienceofajudge to transcend emotional momentum with reflective analysis.” (Austin v. United States, supra, 382 F.2d at pp. 138- 139.) As to Matthew himself, much like the Dillon defendant, he was only 18 years old at the time ofthe crimes. (See, e.g., People v. Dillon, supra, 34 Cal.3d at pp. 482-483 [defendant’s youth and immaturity critical factors underlying Court’s determination that life without parole sentence forfirst-degree murdercruel or unusual]; In re Rodriguez, supra, 14 Cal.3d at p. 655 [that defendant was “only” 26 years old at time of crime one factor considered in concluding penalty for recidivist child molester was cruel or unusual under state constitution]; Cooper v. State (Fla. Sup. Ct. 1999) 739 So.2d 82, 86 [fact defendant only 18 years old at time ofmurder amongcriteria considered in concluding death penalty disproportionate].) As the Supreme Court and social scientists recognize, “iJnexperience, less education, and less intelligence make the teenager less able to evaluate the consequences ofhis or her conduct while at the sametime heor sheis much more apt to be motivated by mere emotion or peer pressure than is an adult.” (Thompson v. Oklahoma (1988) 487 U.S. 815, 835 [citing studies].) To be sure, the Legislature has determined that an 18-year-old may be executed. (Pen. Code § 190.5, subd. (a).) While this reflects the conclusionthat it is never appropriate to execute someone underthe age of 18, it does not support the inverse conclusion that it is always appropriate to execute someone whois 18. AsJustice Brennan observed in his dissenting opinion in Stanford v. Kentucky: 309 Insofar as age 18 is a necessarily arbitrary social choice as a point at which to acknowledge a person’s maturity and responsibility, given the different developmental rates of individuals,it is in fact a “conservative estimate ofthe dividing line between adolescence and adulthood. Manyofthe psychological and emotional changesthat an adolescent experiences in maturing do not actually occur until the early 20s.” Brief for American Society ofAdolescent Psychiatry,et al., as Amici Curiae (citing social scientific studies). (Stanford v. Kentucky (1980) 492 U.S. 361, 396, dis. opn. ofBrennan,J..) (Accord In re Stanford (2002) 537 U.S. 968, 969-970, opn. of Stevens, J., joined by Souter, Ginsberg, and Breyer, JJ., dissenting from denial ofpetition for writ of habeas corpus [quoting above passage and observing “Today, Justice Brennan’s observationsare just as forceful and correct as they were in 1989”]; see also Logan, W. Proportionality And Punishment: Imposing Life Without Parole On Juveniles (1998) 33 Wake Forest L. Rev. 681 and n.136 [“growing evidence supports the view that even older adolescents, those fourteen to eighteen years of age, lack the developmental awarenessofadults”]; Ongerth, S., Deference to the Majority: Why Isn’t the Supreme Court Applying the Reasoning OfAtkinsv. Virginia to Juveniles? (2003) 37 Loy. L.A. L. Rev. 483, 510 and ns. 213-216 {based on neuroscientific research, “teenage brain is a work in progress” and “evidenceis constantly emerging that brain development continues beyondthe age ofeighteen”].) Indeed, this is why cruel or unusual punishment analysis must look beyond merechronological age to the particular defendant’s level of maturity, especially when the defendantis a teenager. (See, e.g., People v. Dillon, supra, 34 Cal.3d at pp. 482-483 [although Legislature had determined that 17-year-olds may be tried, convicted, and sentenced for murderas adults, adult murder sentence for this 17-year-old defendant was cruel or unusual in part because he was “unusually immature”for his age]; see also, e.g., State v. Koskovich, supra, 776 A.2dat pp. 210-212, conc. opn. of Zazzali, J. [same -- New Jersey statute permitting execution of 18-year-olds doesnot reflect determinationit is always appropriate; 310 court must determine whetherit is proportionate to particular 18-year-old based upon his relative maturity and development]; Williams v. State (Fla. 1998) 707 So.2d 683,/684 [18-year-old defendant’s youth amongcriteria in concluding death penalty disproportionate]; Livingston v. State (Fla. 1988) 565 So.2d 1288, 1292 [in concluding death penalty disproportionate, Court observed that defendant’s “youth, inexperience, and immaturity also significantly mitigate his offense”); see also Eddings v. Oklahoma, supra, 455 U.S. 104, 116 [evidence teenage defendant’s emotional development below chronological age highly relevant mitigation]; Bell v. Ohio, supra, 438 U.S.at pp. 639-642 [defendant's “emotional immaturity”constitutionally relevant mitigation].) Here, the developmental deficits inherent in being a teenager were even greater for Matthew. Similar to the defendant in Dillon and as discussed in the preceding arguments, the uncontroverted evidence showedthat Matthew was unusually inexperienced, unsophisticated, and immature, even as compared to other 18-year-old boys. (RT 3620, 3639, 3650, 3657-3658, 3672-3673, 3679, 3685, 3710, 3716-3717, 3720, 3730, 3732-3738, 3744-3747, 3749, 3760-3762, 2786, 3819, 3822, 3828-3829, 3840.) Furthermore, Matthew hadno criminal record, like the Dillon defendant. (People v. Dillon, supra, 234 Cal.3dat pp. 482-483; Probation Report at p. 6.) Indeed, the undisputed evidence revealed that before the crimes, he hadnohistory ofviolence and was unusually pacifistic. (RT 3620, 3639, 365 1-3652, 3665, 3672-3673, 3685, 3688, 3757-3758, 3770, 3778, 3786, 3835; see, e.g., People v. Dillon, supra, 34 Cal.3d at p. 384 and n. 35; Inre Reed(1983) 33 Cal.3d 914, 935 (lack ofrecord criteria considered in concluding penalty cruel or unusual]; n re Rodriguez, supra, 14 Cal.3d at p. 644 and n. 6 [defendant’s minorprior record of sexual offensearrests considered in concluding penalty for recidivist child molestation was cruel or unusual based in part on nature of offender}; People v. Vargas, supra, 53 Cal.App.3dat p. 535 [defendant’s “minimal criminal record” among criteria considered in concluding pena lty cruel and unusual based in part on 311 nature of offender]; Solem v. Helm, supra, 463 U.S.at pp. 289-290, 303 [non- violent nature of defendant’s six prior felony convictio ns considered in concluding prison term for recidivist felony offender cruel and unusual]; see also Ray v. State (Fla. Sup, Ct. 2000) 755 So.2d 604, 612-613 [insign ificant record among criteria considered in concluding death penalty disproportio nate for murder ofpolice officer]; Cooper v. State, supra, 739 So.2d at p. 86 [same].) Furthermore, Matthew overcame the emotional damageinflicted by his mother to have deep and loving relationships n ot only with family, but also with friends. He was consistently described by vari ous witnesses as a “extra-special” and unusually loving and nurturing. (RT 3620, 3 669, 3672, 3755, 3778, 3880, 3785, 3787, 3838; see, ¢.2., Ray v. State, supr a, 755 So.2d 604 [defendant’s loving familial relationships amongfactors considered in concluding death penalty disproportionate].) And,as previously discussed, in keeping with his gentle and obedient nature, he was a modelprisoner following arre st. Heenrolled in school, obtained his G.E.D., and, in the words ofhis teacher , was a “pleasure” to have in class. (RT 3791, 3797-3798, 3800; see, €.2., Williamsv. State (Fla. Sup. Ct. 1998) 707 So.2d 683, 684 [facts that defendant was 18 years old , a modeljail inmate, and had obtained G.E.D. while awaiting trial among cr iteria in considered death penalty disproportionate].) Moreover,like the Dillon defendant’s sent ence, Matthew’s death sentence equates his moral culpability with defendants convicted of far more blameworthy crimes. (See People v. Dillon, supra, 34 Cal.3d at p. 487 and n. 38.) For example, defendants whointentionally kill their victims by blowing them apart with a bomb,through the infliction of torture, or i n the course, of brutal and ongoing sexual assaults are subject to the same penalty, indeed their lives may even be spared. (Pen. Code §§ 190.2(a)(4) and (a)(18);s ee, €.2., People v. Padayao (1994) 24 Cal.App.4™ 1610 [defendant convicted of tort ure murder sentencedto life withoutparole]; People v. Marlow (1995) 48 Cal .App.4™ 740 [defendant 312 convicted ofkidnapping, raping, and murdering two womensentenced to 73 years, eight monthsin prison]; People v. Castro (1994) 27 Cal.App.4” 578, 581 [defendant who committed crime spree with companion in which,inter alia, they raped and murdered one woman and attempted to murder elderly man with an ax before robbing him received life without parole sentence].) Whatever else may be said about the tragic results of the shooting, Matthew’s moral culpability simply is not the sameas that ofthe fully mature, adult defendant whotortures or rapes a victim to death. Furthermore, although his brother was the ringleader and at least as likely to have been actual shooter as Matthew, notwithstanding the jury’s verdict, he was ordered to serve only a single term of25 years to life with the possibility ofparole for the same crimes ofwhich Matthew was convicted. (2/5/99 RTat p. 5.) Forall ofthese reasons, Matthew’s caseis not only strikingly similar to Dillon in several critical respects. It presents an even more compelling case of disproportionality and stands in stark contrast to those cases wherein the Court has rejected claims of disproportionality under Dillon. (See, e.g., People v. Cox (2003) 30 Cal.4™ 916, 970 [rejecting claim where defendantbrutally, with premeditation, and without any suggestion ofemotional disturbance, murdered three teenage girls on separate occasions]; People v. Weaver, supra, 26 Cal.4" at p. 989 [rejecting claim where defendant picked up young couple stranded on highway, killed young man in sneak attack with pipe, raped young woman more than once over the course of several hours before killing her, as well, previously had attempted to kidnap another woman bystriking her, and previously picked up another young couple, directed acquaintanceto kill the male, and committed forcible sex crimes against 15-year-old female]; People v. Webb (1993 6 Cal.4® 494,536 [rejecting claim where defendant committed planned robbery and killing oftwo people, which involved “prolonged torment”ofvictims, and where he had previously committed four other killings]; People v. Hines (1997) 15 Cal.4™ 997, 1078 [rejecting claim where defendant and companion bound and gagged 15-year- 313 old girl, brutally beat her mother, shot each victim four times, to ensure death shot each victim execution style, behind the ear at close range, after which they drove around in victim’s stolen car and showeditoffto their friends]; People v. Karis (1988) 46 Cal.3d 612, 649 [rejecting claim where defendant and committed planned kidnapping, rape, and murder oftwo women,and where he had previously been convicted of rape].) In sum,like the defendant in Dillon, Matthew was an inexperienced teenager with no prior record, who “wasnot the prototype of a hardened criminal who posesa gravethreat to society.” (People v. Dillon, supra, 34 Cal.3dat pp. 487-488.) While the results ofthe shooting were horrific, the shooting itselfwas committed in response to “a suddenly developingsituation (Ibid.) and clearly was an isolated and aberrant event in an otherwise blamelesslife. To execute Matthew declares that there is no hope whatever for rehabilitation of this human life — that his life is not worth saving. Nothing could be further from the truth. His death sentence is grossly disproportionate to Matthew’sindividual culpability and violates the cruel and/or unusual punishmentclauses ofthe state and federal constitutions. XIV. THE TRIAL COURT’S REFUSAL TO PROVIDE AN INSTRUCTION CLEARLY GUIDING THE JURY’S CONSIDERATION OF THE SCOPE AND PROOF OF MITIGATING CIRCUMSTANCES VIOLATEDMATTHEW’S RIGHTS UNDER STATE LAW, AS WELL AS THEFIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS, AND REQUIRES THAT HIS DEATH SENTENCE BE REVERSED. In addition to the lingering doubt instruction discussed in Argument VIII, Matthew’s counsel requested only one other special instruction. (CT 755-756; RT 3567-3571.) That instruction provided: 314 The mitigating circumstancesthat I have read for your consideration are given merely as examplesof factors that a juror may take into account as reasons for deciding not to impose a death sentence in this case. A juror should pay careful attention to each ofthose factors. Any one ofthem maybesufficient, standing alone,to support a decision that death is not the appropriate punishmentin this case. But a juror should not limit his or her consideration of mitigating circumstances to these specific factors. A juror mayalso consider any other circumstancesrelating to the case or the defendant as shown bythe evidence as reasonsfor not imposing the death penalty. A mitigating circumstance does not have to be proved beyond a reasonable doubt. A juror mayfind that a mitigating circumstance exists ifthere is any evidence to support it no matter how weak the evidenceis. Any mitigating circumstance may outweigh all ofthe aggravating factors. A juror is permitted to use mercy, sympathy and/or sentiment in deciding what weight to give each mitigating factor. (CT 756.) The court refused the instruction on a numberofgrounds. First, the court believed that the statement that a mitigating circumstance may be foundto exist “no matter how weak the evidence” was not a correct statement of the law. (RT 3568-3569.) As to the rest ofthe instruction, the court did not disagree that it contained correct statements of the law, but reasoned that “someif it is redundant” and others did not to be “highlighted.” (RT 3569-3571.) Ifthey did need | highlighting, the court told counsel that he could do so in argument. (RT 3571) Counsel (quite correctly) responded, “this jury has shown disinclination to believe me.” (RT 3571.) The court replied that co-counsel could argue those factors to the jurors. (RT 3571.) Hence, the court refused the instruction. (RT 3571, 3700.) The court erred. While Matthew recognizes that this Court has rejected claims oferror with respect to the refusal to provide similar instructions 315 (see, e.g., People v. Smith (2003) 30 Cal.4581, 638 People v. Bonillas (1989) 48 Cal.3d 757, 789-790), he respectfully requests reconsideration for the reasons below. In addition, he raises the issue here in order to preserve the error for federal review. A criminal defendantis entitled upon request to instructions which pinpoint his theory ofdefense. (See, e.g., People v. Kraft, supra, 23 Cal.4th at p. 1068; People v. Adrian (1982) 135 Cal.App.3d 335, 338; People v. Rincon-Pineda, supra, 14 Cal.3d at p. 865; People v. Sears (1970) 2 Cal.3d 180, 190; see also Pen. Code § 1093, subd.(f) [trial court must instruct jury “on any points of law pertinent to the issue ifrequested by either party. .. .”].) The right to such instructions applies at both the guilt and penalty phasesofa capital trial. (See, e.g., People v. Benson (1990) 52 Cal.3d 754, 806; People v. Davenport, supra, 41 Cal.3d at pp. 281-283.) “[I]n considering instructions to the jury [the judge] shall give no less consideration to those submitted by attorneys for the respective parties than to those containedin thelatest edition of ... CALJIC ....” (Cal. Stds. OfJud. Admin., § 5.) To be sure, a trial court is not required to give instructions that are _ argumentative or contain incorrect statements of law. (See People v. Sanders, supra, 11 Cal.4th at p. 560.) However, the requested instruction was neither. Indeed, contrary to the court’s understanding, the instruction’s statements ofthe law were entirely accurate. Asto the first, second, and fourth paragraphs of the instruction, the United States Supreme Court has madeclear thatall non-trivial aspects of a defendant's character or circumstances ofthe crime constitute relevant mitigating evidence. (Tennard v. Dretke, supra, 124 S. Ct. at p. 2571.) Mitigation is not limited to enumerated factors in section 190.3, but includes any mitigating information that may convincethe jury to vote for a sentence less than death. (See, e.g., Blystone v. Pennsylvania (1990) 494 U.S. 299, 308.) Furthermore, “[t]he jury must be free to reject death if it decides on the basis ofany constitutionally relevant evidence or observation that [death] is not the appropriate 316 penalty.” (People v. Brown, 40 Cal.3d at p. 540.) Indeed, the jury may reject the death penalty even in the complete absence ofmitigating evidence. (See, e.g., People v. Duncan (1991) 53 Cal.3d 955, 978-979; People v. Nicolaus (1991) 54 Cal.3d 551, 590-591.) Asto the third paragraph ofthe instruction, this Court has held that mitigating circumstances need not be proven beyond a reasonable doubtor by a preponderanceofthe evidence. (People v. Carpenter, supra, 15 Cal.4™ at pp. 416- 417.) To the contrary, a jury mayfind a mitigating circumstanceto exist ifthere is any evidence — as opposed to substantial evidence — to support it. (People v. Bonillas, supra, 48 Cal.3d at pp. 789-790.) At bottom, the federal constitution requires the jury be allowed to consider a mitigating circumstance “no matter how strong or weak the evidenceis.” (People v. Wharton, supra, 53 Cal.3d at pp. 600- 601, emphasis supplied.) Asto the fifth paragraphofthe instruction,it is well settled that mercy, sympathy, and sentiment are relevant mitigating factors. (See, e.g., People v. Easley, supra, 34 Cal.3d at pp. 874-880.) Indeed, a capital jury has the right to reject the death penalty based solely on sympathy for the accused. (See,e.g., Peole v. Lamphear, supra, 36 Cal.3d at p. 157; People v. Robertson, supra, 33 Cal.3d at pp.57-58 [Lockett and Eddings “make it clear that in a capital case the defendantis constitutionally entitled to have the sentencing body consider any ‘sympathy factor’ raised by the evidence before it”]; People v. Brown, supra, 40 Cal.3d at p. 536 ["The jury mustbe free to reject death ... on the basis ofany constitutionally relevant evidence..."]; People v. Haskett, supra, 30 Cal.3d atp. 863.) Furthermore, the jurors may consider sympathy in determining what weight to give other factors. (See, e.g., People v. Easley, supra, at pp. 874-880.) The proposedinstruction would haveclarified for the jury the nature of the process ofmoral weighing in which they were to engage by demonstratingthat any single factor in mitigation might provide a sufficient reason for imposing a sentence other than death. (CfPeople v. Sanders, 11Cal.4th at 557 [noting with 317 approvalinstruction that “expressly told the jury that penalty was not to be determined by a mechanical process of counting, but rather that the jurors were to assign a weight to each factor, and that a single factor could outweigh all other factors.” (People v. Sanders, supra, 11 Cal.4th at p. 557, quoting People v. Cooper, supra, 53 Cal.3d at p. 845.) This Court has indicated that such an instruction helps eliminate the possibility that the jury will "misapprehend[] the nature of the penalty determination process or the scope of their discretion to determine [the appropriate penalty] through the weighing process...." (Id. at p. 557; see also People v. Anderson (2001) 25 Cal.4th 543, 599-600 [approving an instruction that "any one mitigating factor, standing alone," can suffice as a basis for rejecting death].) Of course, as noted above, the Court hasalso held that it is not error to refuse to give an instruction embodying these correct principles oflaw if the instructions the jury receives on mitigation are otherwise correct. (See, e.g., People v. Smith, supra, 30 Cal.4” at p. 638; People v. Bonillas, supra, 48 Cal.3d at pp. 789-790.) However, this rationale ignores the critical distinction between the failure to give an accurate requested instruction and the giving of an erroneous one. In fact, the rationale runs afoul of California law, which entitles a defendant to have a requested instruction givenif it correctly states applicable law. That right is not contingent on the court giving other erroneousinstructions on the issue. Of course, if the trial court gives an erroneousinstruction, the defendant can arguethat error. But no general principle of California law mandates that establishing such error is a prerequisite to showingerrorin failing to give a requested instruction. Indeed, the law is just the opposite. (People v. Kane (1946) 27 Cal.2d 693, 698, 700 [although jury given correct instructions defining robbery and reasonable doubt, trial court committed prejudicial error by refusing pinpoint instruction directing jury to acquit if victim gave defendant permission to take property:“It is true that the instruction given stated the law correctly, but it was brief, general, and colorless in comparison with the instruction asked, and had the 318 effect ofminimizing the importance of a consideration which could not have been stated with too much emphasis.’”]; People v. Mayo (1961) 194 Cal.App.2d 527, 536-537 [although court’s instructions regarding elements of offense were generally correct and adequate,it prejudicially erred in refusing specific instructions pinpointing theory of defense]; People v. Sears, supra,2 Cal.3d 180, 190 [citing Kane and Mayo with approval in recognizing that defendantis entitled to pinpointinstructions upon request; refusal to give reasonable doubtinstruction pinpointing theory ofdefense erroneous despite generally adequate reasonable doubtinstruction}; People v. Thompkins (1987) 195 Cal.App.3d 244, 256-257 [error to refuse “instructions [because] they were allegedly incomplete and duplicated standard CALJIC instructions. . . if the defendantoffers ‘pinpoint’ instructions intended to supplement or amplify more general instructions”].) Certainly, there is no sound reason not to instruct the jury on legally correct principles that bear on vital issues in a capital case. The requested instruction here simply and correctly explained the law applicable to the consideration of mitigating circumstances. Ordinarily, the integrity of the judicial processis impaired whenthe jury is not told about rules of law that govern the ultimate decision it must make. The guiding principle should be to explain, not to conceal, the applicable rules. Indeed, the trial court seemed to appreciate this fact when it cameto the prosecution’s requests for special instructions. In the guilt phase oftrial, the court granted the prosecution’s request to provide additional instructions on-the meaning ofpremeditation. (RT 2945-2946, 3181, 3262-3263; CT 560-561, 704; see also Argument IV.) In the penalty phase, the court granted the prosecution’s request to instruct the jurors that victim impact evidence could be considered underfactor (a). (CT 753, 782; RT 3563-3564, 3864; see also Argument XI.) Despite the fact that the standard instructions defining premeditation and describing factor (a) were generally correct and adequate, the court nevertheless granted the prosecutor’s requests and provided the jury with those instructions. Ifthe otherwise correct and 319 adequate nature ofthe standard instructions wasnot sufficient ground for the court to refuse the prosecutor’s requests, then it should not have been groundto refuse the defense request. (See RT 3569-3571.) To the contrary, “there should be absolute impartiality as between the People and the defendant in the matter of instructions ... .” (People v. Moore (1954) 43 Cal.2d 517, 526-527; see also Gray v. Klauser, supra, 282 F.3d at pp. 645-648, 651 [and authorities cited therein -- a trial court’s unjustified or uneven application of legal standard in a way that favors the prosecution over the defense violates federal due process]; cf. Wardius v. Oregon (1973) 412 U.S. 470, 474 [Due Process Clause “does speak to the balance of forces between the accused andhis accuser,” and “in the absence ofa strong showingof state interests to the contrary” ... there “must be a two-way street”as between the prosecution and the defense].) The court’s inconsistent application of the law to grant the prosecutor’s requests for special instructions and refuse the defense requests for similar instructions was fundamentally unfair in violation of Matthew’s right to due process. (Ibid.) Furthermore, the court’s refusal to provide the defense request denied Matthew his Eighth and Fourteenth Amendmentrights to a fair, non-arbitrary and reliable sentencing determination, to have the jury consider all mitigating circumstances(see, e.g., Skipper v. South Carolina, supra, 476 U.S.at p. 4; Lockett v. Ohio, supra, 438 U.S. at p. 604), and to make an individualized determination whether he should be executed, underall the circumstances(see, e.g., Zant v. Stephens, supra, 462.U.S. at p. 879.) At the very least, the court’s refusal to provide the instruction violated state law for all of the reasons set forth above. Given the closeness ofthe case, discussed in Argument VIII, there is a reasonable possibility (People v. Brown, supra, 46 Cal.3d at pp. 447-448)that the verdict would have been more favorable to Matthew ifthe court had given the requested instruction. At the very least, it is clear that the cumulative effect of this and the other errors that occurred throughout Matthew’s trial violated his state and 320 federal constitutional rights to a fair trial and a reliable penalty judgment. (See, e.g., Chambersv. Mississippi, supra, 410 U.S. 284; People v. Hill, supra, 17 Cal.4™ at pp. 844-847; Alcala v. Woodford , supra, 334 F.3d at pp. 883, 893; Mak v. Blodgett, supra, 970 F.2d at pp. 622-625; see also Argument X, above.) The penalty judgment must be reversed. XV. THE PROVISION OF CALJIC NO. 8.85, WHICH INCLUDED INAPPLICBLE FACTORS AND FAILED TO SPECIFY WHICH FACTORS COULD BE MITIGATING ONLY, VIOLATED MATTHEW’S RIGHTS UNDER THEFIFTH,SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS AND REQUIRES REVERSAL OF THE PENALTY JUDGMENT. The jury wasinstructed with CALJIC No. 8.85, the standard instruction regarding the factors in aggravation and mitigation which may be considered in determining whether a sentence ofdeath or life without the possibility ofparole should be imposed.’® (CT 782.) Matthew respectfully submits that CALJIC No. 8.85 violates the Fifth, Sixth, eighth, and federal Constitution. Once again, he recognizes that this Court previously has rejected similar contentions(see, e.g., People v. Carpenter (1999) 21 Cal.4th 1016, 1064 People v. Benson (1990) 52 Cal.3d 754, 802), but he requests reconsideration for the reasons given below. In addition, he raises the issue to preserveit for federal review. Mostofthe factors listed in CALJIC No. 8.85 were inapplicable to the facts of this case. (See Cal. Penal Code § 190.3, subds.(b)-(j).) Yet, the trial court did not delete those inapplicable factors from the instruction. (CT 782.) Moreover, the trial court did not give the jury any instructions indicating which ofthelisted sentencing factors were aggravating, which were mitigating, or which could be 38 Thefull text ofCALJIC No. 8.85, as providedin this case, is set forth in Argument VIII-C-1, footnote 32, above. 321 either aggravating or mitigating depending upon the evidence. Including inapplicable statutory sentencing factors, and failing to specify which factors were aggravating and which factors were mitigating, was harmful in a numberofways. First, only factors (a), (b), and (c) may lawfully be considered in aggravation. (See, e.g., People v. Gurule (2002) 28 Cal.4" 557, 660; People v. Montiel, supra, 5 Cal.4th at pp. 944-945.) The factors introduced by a prefatory “whetheror not” — factors (d), (e), (f), (g), (h) and (j) — were relevantsolely as a possible mitigators. (See, e.g., People v. Hamilton, supra, 48 Cal.3d at pp. 1184; People v. Edelbacher, supra, 47 Cal.3d at p. 1034.) However, the “whetheror not” formulation used in CALJIC No.8.85 given in this case suggested that the jury could consider the inapplicable factors for or against Matthew. In other words, without guidance ofwhich factors could be consideredsolely as mitigating, the jury wasleft free to conclude that a “not” answerto any ofthose “whetheror not” sentencing factors could establish an aggravating circumstance, and was thus invited to aggravate Matthew’s sentence uponthe basis ofnonexistent and/or irrational aggravating factors, in violation of the Eighth and Fourteenth Amendments. (See, e.g., Stringer v. Black, supra, 503 U.S.at p. 235; Mills v. Maryland (1988) 486 U.S. 367, 373-375; Zant v. Stephens, supra, 462 U.S.atp. 879; Woodson v. North Carolina, supra, 428 U.S. at p. 304.) Indeed, the need for such instructions in this case was particularly acute, and their omission particularly prejudicial, because the prosecutor argued that the facts that Matthew was not intoxicated or otherwise impaired (factor (h)), that the crimes were notjustified (factor (f)), that Matthew had not expressed remorse by “apologizing,” and that Matthew’s family was not physically abusive, were aggravatingin that they all madehis crimes and his culpability even “worse.” (RT 3891-3892, 3923- 3924,3926-3928.) Although this Court has held that no reasonable juror would misconstrue these factors as aggravating(see, e.g., People v. Benson, supra, 52 Cal.3d at p. 802), that assumption has been severely undermined by subsequent empirical 322 research showing how thesefactors are actually understood. In a study ofjurors whosat on capital trials in California, it was found that jurors actually believed, despite instruction to the contrary, that the absence of mitigation evidence supported a sentence of death. (See Haney, Sontag, & Costanzo, Deciding to Take A Life: Capital Juries, Sentencing Instructions, and the Jurisprudence ofDeath (1994) 50 Journal of Social Issues 149, 169; see also C. Haney and M. Lynch, Comprehending Life and Death Matters: A Preliminary Study of California's Capital Penalty Instructions (1994) 18 Law and Human Behavior 411 [in study involving upper-level college students, large percentage were unable to accurately identify factors listed in CALJIC No. 8.88 as aggravating or mitigating].) In the face of such evidence, this Court can no longer so blithely assumethat jurors in fact understood what is commonly--but erroneously--believed to be the “plain” meaning ofthe instruction’s language. (See, e.g., People v. Benson, supra, 52 Cal.3d at p. 802.) In any event, the only logical conclusionis that jurors would consider the absence ofmitigation to be aggravating, since the instruction expressly tells the jurors to “consider” if any ofthese factors is “not” present. Onceagain, jurors are presumedto follow instructions. (See, e.g., Francis v. Franklin, supra, 471 U.S. at p. 324, n. 9; People v. Holt (1997) 15 Cal.4th 619, 662.) Moreover, permitting--indeed, mandating--the penalty jurors to be instructed on irrelevant matters makesit likely that their focus will be diluted and their attention distracted from the difficult task at hand. These dangers were heightened bythe trial court’s failure to clearly explain which factors were aggravating and which were mitigating. Furthermore, failing to delete factors for which there was no evidenceatall not only servedto artificially inflate the case for aggravation, but also tended to diminish the mitigating evidence that was presented. The jury was effectively invited to sentence Matthew to death because there was evidence in mitigation for “only” one or two factors, whereas there was either evidence in aggravation or no 323 evidenceat all with respectto all the rest. In so doing, the instruction undermined the right to heightened reliability in the penalty determination,all in violation of the Sixth, Eighth, and Fourteenth Amendments. (See Ford v. Wainwright (1986) 477 U.S. 399, 411, 414; Beck v. Alabama, supra, 447 U.S.at p. 637.) The impact on the sentencing calculus of a defendant’s failure to adduce evidencesufficient to establish mitigation under factor (d), (e), (f), (g), (h), or Gj) will vary from case to case depending upon how the sentencing jury interprets the “law” conveyed by the CALJIC pattern instruction. In some cases the jury may construe the pattern instruction in accordance with California law and understand that ifthe mitigating circumstance described under factor (d), (e), (f), (g), (h), or (j) is not proven, the factor simply drops out ofthe sentencing calculus. In other cases, the jury may construe the “whether or not” language of the CALJIC pattern instruction as giving aggravating relevance to a “not” answer and accordingly treat each failure to prove a listed mitigating factor as establishing an aggravating circumstance. Theresult is that from case to case, even with no difference in the evidence, sentencing juries will likely discern dramatically different numbers ofaggravating circumstances because of differing constructions of the CALJIC pattern instruction.In effect, different defendants, appearing before different juries, will be sentenced on the basis of different legal standards. This is unfair and constitutionally unacceptable. Capital sentencing procedures mustprotect against “‘arbitrary and capricious action,’” (Tuilaepa v. California (1994) 512 U.S. 967, 973, quoting from Gregg v. Georgia, supra, 428 U.S.at p. 189) and help ensure that the death penalty is evenhandedly applied. (Eddings v. Oklahoma,supra, 455 US. at p. 112.) In no other area of criminal law is the jury instructed on matters unsupported by the evidence. Indeed, this Court has stated that trial courts have a duty to screen out factually-unsupported theories, “either by appropriate instruction or by not presenting them to the jury in the first place.” (People v. 324 Guiton (1993) 4 Cal.4th 1116, 1131; see also People v. Michaels (2002) 28 Cal.4th 486, 531 [“Instructions should not be unnecessarily complicated bytelling the jury that a defense unclaimed by the defendant and excluded by the other instructions is inapplicable.”].) Unlike other instructions which are required to be modified or edited to delete potentially misleading or confusing language(see, e.g., People v. Jennings (1991) 53 Cal.3d 334, 389-390 [penalty-phase jury instruction to considerall ofthe evidenceatall phases oftrial should have been tailored to exclude evidencerelating to charges ofwhich defendant was acquitted]), or deleted altogether if unsupported by the evidence (see People v. Guiton, supra, 4 Cal.4th at p. 1131), CALJIC No. 8.85 is treated differently--to a capital defendant’s considerable disadvantage. In a situation where the law requires heightened, not lessened, scrutiny (see Ford v. Wainwright, supra, 477 US.at pp. 411, 414), this Court has incongruously sanctioned irrelevant or inappropriate instructional language in violation of Matthew’s Eighth and Fourteenth Amendmentrights to equal protection and a reliable penalty determination (see Johnson v. Mississippi (1988) 486 U.S. 578, 585 [a death judgmentcannotbe predicated on factors that are totally irrelevant to the sentencing process]). Forall ofthese reasons, the instruction violated Matthew’srights to an individualized sentencing determination based on permissible factors relating to him and the crime,to a fair trial by jury, to due process, andto a reliable penalty determination as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments. Given the closeness ofthe case and the magnitudeofthe error, reversal is required regardless ofthe standard ofprejudice applied. (See Johnson v. Mississippi, supra, 486 U.S. at pp. 584-590; Chapman v. California, supra, 386 U.S.at p. 24; People v. Brown, supra, 46 Cal.3d at p. 448.) At the very least,it is clear that the cumulative effect ofthis and the other errors that occurred throughout Matthew’s trial violated his state and federal constitutional rights to a fair trial and a reliable penalty judgment. (See, e.g., Chambers v. Mississippi, 325 supra, 410 U.S. 284; People v. Hill, supra, 17 Cal.4"at pp. 844-847; Alcala v. Woodford, supra, 334 F.3d at pp. 883, 893; Mak v. Blodgett, supra, 970 F.2d at pp. 622-625.) The death judgment must be reversed. XVI. THE PROVISION OF CALJIC NO. 8.88 DEFINING THE NATURE AND SCOPE OF THE JURY’S SENTENCING DECISION, VIOLATED MATTHEW’S RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTSOF THE FEDERAL CONSTITUTION AND REQUIRES REVERSAL OF THE PENALTY JUDGMENT. Thetrial court's concluding instruction in this case, CALJIC No. 8.88, read as follows: It is now your duty to determine which ofthe two penalties, death or confinementin the state prison for life without possibility ofparole, shall be imposed on the defendant. After having heard all ofthe evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided bythe applicable factors of aggravating and mitigating circumstances upon which you have beeninstructed. An aggravating factor is any fact, condition or event attending the commission of a crime which increasesits guilt or enormity, or adds to its injurious consequences which is above and beyond the elements ofthe crimeitself. A mitigating circumstanceis any fact, condition or event which as such, does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side ofan imaginary scale, or the arbitrary assignment ofweights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each andall ofthe various factors you are permitted to consider. In weighing the various circumstances you 326 determine under the relevant evidence which penalty is justified and appropriate by considering the totality ofthe aggravating circumstanceswith the totality ofthe mitigating circumstances. To return a judgmentofdeath, each ofyou must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstancesthat it warrants death instead oflife without parole. (CT 789.) This instruction, which formed the centerpiece ofthe trial court's description ofthe sentencing process, was constitutionally flawed. Theinstruction did not adequately convey severalcritical deliberative principles, and was misleading and vaguein crucial respects. Whether considered singly or together, the flawsin this pivotal instruction violated Matthew's fundamental rights to due process (U.S. Const., Amend. XIV), to a fair trial by jury (U.S. Const., Amends. VI, XIV), and to areliable penalty determination (U.S. Const., Amends. VI, VIII, XIV), and require reversal of his sentence. (See, e.g., Mills v. Maryland, supra, 486 U.S.at pp. 383-384.) Matthew recognizes that the Court has rejected similar challenges to CALJIC No.8.88 (see, e.g., People v. Coffman and Marlow (2004) 34 Cal.4™ 1, 124), but nevertheless raises the issue here in order for the Court to reconsider those decisions and to preserveit for federal review. A. The Instruction Caused The Jury's Penalty Choice To Turn On An Impermissibly Vague And Ambiguous Standard ThatFailed To Provide Adequate Guidance And Direction Pursuant to the CALJIC No.8.88 instruction, the question ofwhether to impose a death sentence on Matthew hinged on whetherthe jurors were “persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death instead oflife without parole.” (CT 789.) “So substantial,” however, is an impermissibly vague phrase which bestowedintolerably broad discretion on the sentencingjury. Topass constitutional muster, a system for imposing the death penalty must 327 channel and limit the sentencer's discretion in order to minimizetherisk of arbitrariness and capriciousness in the sentencing decision. (Maynardv. Cartwright (1988) 486 U.S. 356, 362.) In orderto fulfill that requirement, a death penalty sentencing scheme must adequately inform the jurors of “what they have to find in order to impose the death penalty ....” (Id. at pp. 361-362.) A death penalty scheme whichfails to accomplish those objectives is unconstitutionally vague under the Eighth and Fourteenth Amendments. (Ibid.) The phrase “so substantial” violates the Eighth and Fourteenth Amendments because it creates a standard that is vague and directionless. The phrase is so varied in meaning and so broad in usagethat it cannot be understood in the context of deciding betweenlife and death and invites the sentencer to impose death through the exercise of “the kind of open-ended discretion which was held invalid in Furman v. Georgia ....” (Maynard v. Cartwright, supra, 486 US.at p. 362.) The Georgia Supreme Court found that the word “substantial” causes vagueness problems when usedto describe the type of prior criminal history jurors may consider as an aggravating circumstancein a capital case. (Arnold v. State (Ga. 1976) 224 S.E.2d 386, 391.) In that case, the Court held that a statutory aggravating circumstance which asked the sentencer to consider whether the accused had “a substantial history of serious assaultive criminal convictions” did “not provide the sufficiently 'clear and objective standards' necessary to contro!the jury's discretion in imposing the death penalty. [citations].” (See Zant v. Stephens, supra, 462 U.S.at p. 867, n. 5.) In analyzing the word "substantial," the Arnold court concluded: Black's Law Dictionary defines "substantial" as "of real worth and importance," "valuable." Whether the defendant's prior history of convictions meetsthis legislative criterion is highly subjective. While we might be more willing to find such language sufficient in another context, the fact that we are here concerned with the 328 imposition ofthe death penalty compels a different result. (Arnold v. State, supra, 224 S.E.2d at p. 392.)°? Matthew acknowledgesthat this Court has opined, in discussing the constitutionality ofusing the phrase "so substantial" in a penalty phase concluding instruction, that "the differences between [Arnold] and this case are obvious." (People v. Breaux (1991) 1 Cal.4th 281, 316, n. 14.) However, Breaux's summary disposition ofArnold does not specify what those "differences" are, or how they impactthe validity ofAmold's analysis. Of course, Breaux, Arnold, andthis case, like all cases, are factually different, but their differences are not constitutionally significant and do not undercut the Georgia Supreme Court's reasoning. All three cases involve claims that the language of an important penalty phasejury instruction is "too vague and nonspecific to be applied evenly by a jury." (Arnold v. State, supra, 224 S.E.2d at p. 392.) Theinstruction in Amold concerned an aggravating circumstance which used the term "substantial history of serious assaultive criminal convictions" (Ibid.), while the instant instruction, like the one in Breaux, uses that term to explain how jurors should measure and weigh the "aggravating evidence" in deciding on the correct penalty. Accordingly, while the three cases are different, they have at least one common characteristic: theyall involve penalty-phase instructions which fail to "provide the sufficiently 'clear and objective standards’ necessary to control the jury's discretion in imposing the death penalty." (Id. at p. 391.) In fact, using the term "substantial" in CALJIC No. 8.88 arguably gives rise to more severe problemsthan those the Georgia Supreme Court identified in the use of that term in Arnold. Theinstruction at issue here governs the very act of determining whetherto sentence the defendant to death, while the instruction at issue in Arnold only defined an aggravating circumstance, and wasat least one 9 The United States Supreme Court has specifically recognized the portion of the Armold decision invalidating the “substantial history” factor on vagueness 329 step removedfrom the actual weighing process used in determining the appropriate penalty. In sum,there is nothing about the languageofthis instruction that "implies any inherent restraint on the arbitrary and capriciousinfliction ofthe death sentence." (Godfrey v. Georgia (1980) 446 U.S. 420, 428.) The words "so substantial" are far too amorphousto guide a jury in deciding whether to impose a death sentence. (See Stringer v. Black, supra, 503 U.S. 222.) Because the instruction rendered the penalty determination unreliable (U.S. Const., Amends. VIII, XIV), the death judgment must be reversed. B. TheInstruction Failed To Inform The Jurors That The Central Determination Is Whether the Death Penalty Is The Appropriate Punishment Ofcourse, the ultimate question in the penalty phase ofany capital caseis whether death is the appropriate penalty. (Woodson v. North Carolina, supra, 428 USS. at p. 305; People v. Edelbacher, supra, 47 Cal.3d at p. 1037.) Indeed, this Court consistently has held that the ultimate standard in California death penalty cases is "which penalty is appropriate in the particular case." (People v. Brown, supra, 40 Cal.3d at p. 541 [jurors are not required to vote for the death penalty unless, upon weighing the factors, they decide it is the appropriate penalty under all the circumstances]; accord People v. Champion, supra, 9 Cal.4th at p. 948; People v. Milner (1988) 45 Cal.3d 227, 256-257; see also Murtishaw v. Woodford, supra, 255 F.3d at p. 962.) However, the instruction under CALJIC 8.88 did not makeclear this standard of appropriateness. Bytelling the jurors that they could return a judgmentofdeath if the aggravating evidence "warrants" death instead of life without parole, the instruction failed to inform the jurorsthat the central inquiry was not whether death was "warranted," but whether it was appropriate. Those two determinations are not the same. A rational juror could find in a grounds. (See Gregg v. Georgia, supra, 428 U.S.at p. 202.) 330 particular case that death was warranted, but not appropriate, because the meaning of "warranted" is considerably broader than that of "appropriate." Merriam- Webster's Collegiate Dictionary (10th ed. 2001) defines the verb "warrant"as, inter alia, "to give warrant or sanction to" something, or "to serve as or give adequate ground for" doing something. (Id. at p. 1328.) By contrast, "appropriate" is defined as "especially suitable or compatible." (Id. at p. 57.) Thus, a verdict that death is "warrant[ed]" might mean simply that the jurors found, upon weighingthe relevant factors, that such a sentence was permitted. Thatis far different than the finding the jury is actually required to make: that death is an "especially suitable," fit and proper punishment,i.e., that it is appropriate. It is clear why the Supreme Court's Eighth Amendmentjurisprudence has demandedthat a death sentence must be based on the conclusion that death is the appropriate punishment, not merely that it is warranted. Tosatisfy "[t]he requirement of individualized sentencing in capital cases" (Blystonev. Pennsylvania, supra, 494 U.S.at p. 307), the punishment mustfit the offender and the offense; i.e., it must be appropriate. To say that death must be warrantedis essentially to return to the standards ofthe earlier phase ofthe California capital- sentencing scheme in which death eligibility is established. Jurors decide whether death is "warranted" by finding the existence ofa special circumstance that authorizes the death penalty in a particular case. (See People v. Bacigalupo (1993) 6 Cal.4th 457, 462, 464.) Thus, just because death may be warranted or authorized does not mean it is appropriate. Using the term "warrant"at the final, weighing stage ofthe penalty determination risks confusing the jury by blurring the distinction between the preliminary determination that death is "warranted," i.e., that the defendantis eligible for execution, and the ultimate determinationthatit is appropriate to execute him orher. CALJIC 8.88, as provided in Matthew’scase, is also defective becauseit implied that death was the only available sentence if the aggravating evidence was 331 "so substantial in comparison with the mitigating circumstances...." However,it is clear under California law that a penalty jury may always return a verdict oflife withoutpossibility ofparole, even ifthe circumstances in aggravation outweigh those in mitigation. (People v. Brown, supra, 40 Cal.3d at pp. 538-541.) Thus, the instruction in effect improperly told the jurors they had to choose death ifthe evidence in aggravation substantially outweighed mitigation. (See People v. Peak (1944) 66 Cal.App.2d 894, 909.) The failure to properly instruct the jury on this crucial point deprived Matthewofhis right to have the jury given proper information concerning its sentencing discretion (People v. Easley, supra, 34 Cal.3d at p. 884), deprived Matthew of an important procedural protection that California law affords capital defendants in violation of due process, and made the resulting verdict unreliable in violation ofthe Eighth and Fourteenth Amendments. In sum, the crucial sentencing instructions violated the Eighth and Fourteenth Amendments by allowing the jury to impose a death judgment without first determining that death was the appropriate penalty as required bystate law. The death judgmentis thus constitutionally unreliable (U.S. Const. amend. VIII, XIV) and denies due process (U.S. Const. XIV; Hicks v. Oklahoma, supra, 447 U.S. at p. 346), and must be reversed. C. TheInstruction Failed To Inform The Jurors That If They Determined ThatMitigation Outweighed Aggravation, They Were Required To Return ASentence ofLife Without The Possibility Of Parole. California Penal Code section 190.3 directs that after considering aggravating and mitigating factors, the jury "shall impose” a sentence of confinementin state prison for a term oflife without thepossibility ofparole if "the mitigating circumstances outweigh the aggravating circumstances.” (Cal. 332 Penal Code § 190.3.)° The United States Supreme Court has heldthatthis mandatory languageis consistent with the individualized consideration ofthe defendant's circumstances required under the Eighth Amendment. (See Boyde v. California, supra, 494 U.S.at p. 377.) | This mandatory languageis not included in CALJIC No.8.88. CALJIC No. 8.88 only addresses directly the imposition ofthe death penalty and informs the jury that the death penalty may be imposedifaggravating circumstancesare "so substantial” in comparison to mitigating circumstances that the death penalty is warranted. While the phrase "so substantial” plainly implies some degree of significance, it does not properly convey the "greater than" test mandated by Penal Code section 190.3. The instruction by its terms would permit the imposition of a death penalty whenever aggravating circumstances were merely "of substance"or "considerable," even ifthey were outweighed by mitigating circumstances. The misleading nature of the instruction was exacerbatedin this case by the trial court’s refusal to give the requested defense instruction described in Argument XIV. (CT 756; RT 3567-3571.) Without it, reasonable jurors would not have understoodthat if the mitigating circumstances outweighed the aggravating circumstances, they were required to return a verdictoflife without possibility ofparole. By failing to conform to the specific mandate ofPenal Code section 190.3, the instruction given to Matthew’s jury violated due process. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) In addition, the instruction improperly reduced the prosecution's burden of proofbelow that required by Penal Code section 190.3. An instructional error that misdescribes the burden ofproof, and thus "Vitiates all the jury's findings," can never be harmless. (Sullivan v. Louisiana, supra, 508 U.S.at p. 281.) 40 The statutealso states that if aggravating circumstances outweigh mitigating circumstances, the jury “shall impose” a sentence of death. This Court has held, however,that this formulation ofthe instruction improperly misinformed 333 This Court has found the formulation in CALJIC No. 8.88 permissible because "[t]he instruction clearly stated that the death penalty could be imposed only if the jury found that the aggravating circumstances outweighed [the] mitigating.” (People v. Duncan, supra, 53 Cal.3d at p. 978.) The Court reasoned that since the instruction stated that a death verdict requires that aggravation outweigh mitigation, it was unnecessary to instruct the jury ofthe converse. The Duncan opinioncites no authority for this proposition, and Matthew respectfully asserts that it conflicts with numerousopinionsthat have disapproved instructions emphasizing the prosecution theory of a case while minimizing or ignoring that of the defense. (See, e.g., People v. Moore, supra, 43 Cal.2d at pp. 526-529; People v. Costello (1943) 21 Cal.2d 760; People v. Kelley (1980) 113 Cal-App.3d 1005, 1013-1014; People v. Mata (1955) 133 Cal.App.2d 18, 21; see also People v. Rice (1976) 59 Cal.App.3d 998, 1004 [instructions required on "every aspect"of case, and should avoid emphasizing either party's theory]; Reagan v. United States (1895) 157 U.S. 301, 310.) the jury regardingits role, and disallowed it. (See People v. Brown, supra, 40 Cal.3d at 544, n. 17.) 4 There are due process underpinningsto these holdings. In Wardiusv. Oregon, supra, 412 U.S. 470, 473, n. 6, the United States Supreme Court warned that “state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial” violate the defendant’s due process rights under the Fourteenth Amendment. (See also Washingtonv. Texas (1967) 388 U.S. 14, 22; Gideon v. Wainwright (1963) 372 U.S. 335, 344; Izazaga v. Superior Court (1991)54 Cal.3d 356, 372-377;cf. Goldstein, The State and the Accused: Balance ofAdvantage in Criminal Procedure (1960) 69 Yale L. J. 1149, 1180-1192.) Noting that theDue Process Clause “does speak to the balance of forces betweenthe accused and his accuser,” Wardius held that “in the absence of a strong showingofstate interests to the contrary” ... there “mustbe a two-waystreet” as between the prosecution andthe defense. (Wardius v. Oregon, supra, 412 U.S.at p. 474.) Though Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (Cf. Gray v. Klauser, supra, 282 F.3dat pp. 645-648, 651 [and authorities cited therein -- a trial court’s unjustified or uneven application of legal 334 People v. Moore, supra, 43 Cal.2d 517, is instructive on this point. There, the Court stated the following about a set ofone-sided instructions on self-defense: It is true that the instructions do not incorrectly state the law, but they stated the rule negatively and from the viewpointsolely ofthe ‘prosecution. To the legal mind they would imply [their corollary], butthat principle shouldnot have been left to implication. The difference between a negative and positive statement of a rule of law favorable to oneor the otherofthe parties is a real one, as every practicing lawyer knows.... There should be absolute impartiality as between the People and the defendantin the matter ofinstructions, including the phraseology employed in the statementoffamiliar principles. (People v. Moore, supra, at pp. 526-527.) In other words, contrary to the apparent assumption in Duncan,the law does not rely on jurors to infer one rule from the statementof its opposite. Nor is a pro- prosecution instruction saved by the fact that it does notitself misstate the law. Even assuming it was a correct statementoflaw,the instruction at issue here stated only the conditions under which a death verdict could be returned and contained no statement of the conditions under which a verdictof life was required. Thus, Moore is squarely on point. It is well settled that courts in criminaltrials must instruct the jury on any defense theory supported by substantial evidence. (See, e.g., People v. Glenn (1991) 229 Cal.App.3d 1461, 1465; Conde v. Henry, supra, 198 F.3d at p. 739; Bashor v. Risley, supra, 730 F.2d at p. 1240; Bradley v. Duncan,supra, 315 F.3d at pp. 1098-1099; Barker v. Yukins (6 Cir. 1999) 199 F.3d 867, 871-876.) The denial ofthis fundamental principle in Matthew'scase deprived him of due process. (See Evitts v. Lucey (1985) 469 U.S. 387, 401; Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) Moreover, the instruction given here is not saved by the fact that it is a sentencing instruction as opposed to one guiding the standard in a way that favors the prosecution over the defense violates due process].) 335 determination of guilt or innocence, since any reliance on such a distinction would violate the Equal Protection Clause of the Fourteenth Amendment. Individuals convicted ofcapital crimesare the only class of defendants sentenced by juries in this state, and they are as entitled as noncapital defendants - if not moreentitled- to the protectionsthe law affordsin relation to prosecution-slanted instructions. Indeed, Matthew can conceive ofno governmentinterest, much less a compelling one, served by denying capital defendants such protection. (See U.S. Const., Amend. XIV; Cal. Const. Art. I, §§ 7 & 15; Plyler v. Doe (1982) 457 U.S. 202, 216-217.) Moreover,theslighting of a defense theory in the instructions has been held to deny not only dueprocess,but also the right to a jury trial because it effectively directs a verdict as to certain issues in the defendant's case. (See Zemina v. Solem (D.S.D. 1977) 438 F.Supp. 455, 469-470, aff'd 573 F.2d 1027, 1028 (8th Cir. 1978); cf. Cool v. United States (1972) 409 U.S. 100 [disapproving instruction placing unauthorized burden on defense].) Thus, the defective instruction violated Matthew's Sixth Amendmentrights as well. Given the closeness ofthe case discussed in detail in the preceding arguments andthecritical errors in the instruction, respondent cannotprove the errors harmless beyond a reasonable doubt. At the very least, it is clear that the cumulative effect of this and the other errors that occurred throughout Matthew’s trial violated his state and federal constitutional rights to a fair trial and a reliable penaltyjudgment. (See,e.g., Chambers v. Mississippi, supra, 410 U.S. 284; People v. Hill, supra, 17 Cal.4™ at pp. 844-847; Alcala v. Woodford , supra, 334 F.3d at pp. 883, 893; Mak v. Blodgett, supra, 970 F.2d at pp. 622-625.) Reversal ofMatthew’s death sentenceis required. XVII. THE SPECIAL CIRCUMSTANCE OF MULTIPLE-MURDER FAILS TO NARROW THE CLASS OF PERSONSELIGIBLE FOR THE DEATH PENALTY AND THUS VIOLATES THE EIGHTH AMENDMENT. 336 The only special circumstance alleged and found true was under Penal Codesection 190.2, subdivision (a)(3), the so-called “multiple murder”special circumstance. (CT 486-749.) For the reasons explained below,this special circumstance violates the Eighth Amendment. While Matthew recognizes that the Court has rejected similar challenges to the multiple murder special circumstance (see, e.g., People v. Sapp (2003) 31 Cal.4th 240, 286-287; People v. Coddington, supra, 23 Cal.4™ at p. 656), heraises the issue here in order for the Court to reconsiderits previous decisions and in orderto preserve the claim for federal review. In orderto satisfy the Eighth Amendment, "a capital sentencing scheme must'genuinely narrow the class ofpersonseligible for the death penalty", (Lowenfield v. Phelps (1988) 484 U.S. 231, 244, quoting Zant v. Stephens, supra, ~ 462 U.S. at p. 877), and must do so by "provid[ing] a 'meaningfulbasis for distinguishing the few cases in which the death penalty is imposed from the many cases in whichit is not" (People v. Edelbacher, supra, 47 Cal.3d at p. 1023, quoting Furman v. Georgia (1972) 408 U.S. 238, 313, conc. opn. ofWhite, J.). It must do so, furthermore, "in an objective, evenhanded, and substantially rational way...." (Zant v. Stephens, supra, 462 U.S.at p. 879.) Under the California scheme-- in which the special circumstancesset forth in Penal Codesection 190.2(a) are supposedto satisfy the foregoing demands (People v. Edelbacher, supra, 47 Cal.3d at p. 1023; People v. Bacigalupo, supra, 6 Cal.4th at pp. 467-468) — “each special circumstance” — not just all ofthe special circumstances considered in the aggregate —- must “provide a rational basis for distinguishing between those murderers who deserve to be considered for the death penalty and those who do not.” (People v. Green (1980) 27 Cal.3d 1, 61.) Thespecial-circumstanceat issue in this case -- multiple murder, Pen. Code sec. 190.2(a)(3)-- fails to distinguish "in an objective, evenhanded, and substantially rational way" (Zant v. Stephens, supra, 462 U.S. at p. 879), between those deserving of death and those whoare not. 337 "Narrowingis not an end in itself, and not just any narrowing will suffice." (United States v. Cheely (g® Cir. 1994) 36 F.3d 1439, 1445.) To narrow in "an evenhanded... and substantially rational way," the special circumstance must define a sub-class ofpersons of comparable culpability. "When juries are presented with a broad class, composed ofpersons ofmanydifferent levels of culpability, and are allowed to decide who among them deservesdeath, the possibility of aberrational decisionsas to life or death is too great." (Ibid.) At issue in Cheely were federal statutes dealing with mail bombs. (18 U.S.C. §§ 844, subd. (d), 1716, subd. (a).) The statutes declared that anyone who, with the intent to injure property or life, causes a death by knowingly placing in the mail an explosive device, is eligible for the death penalty. The Ninth Circuit held the statutes were unconstitutional: "[T]hey create the potential for impermissibly disparate andirrational sentencing because they encompassa broad class of death-eligible defendants....". (United States v. Cheely, supra, 36 F.3d at p. 1444.) Underthe statutes, the court observed, one jury could sentence to death a person whoaccidentally killed while intending to damage property, while a second jury could vote to spare a mail-bomber whodeliberately assassinated an NAACP official. "The narrowing" principle on which the statutes rest thus fails to "foreclose ... the prospectof ... ‘wanton or freakish’ imposition of the death penalty." (United States v. Cheely, supra, 36 F.3d at p. 1445. This is equally true ofthe multiple murder special circumstancein the California statute. Thus the multiple murderspecial circumstance applies to the white racist who deliberately kills several black children in separate incidents. It also applies to the black man who,in the course of a robbery, accidentally kills one white woman and her 9-week old fetus, which the defendant did not know the woman was carrying. (See, e.g., People v. Davis (1994) 7 Cal.4th 797, 810 [person responsible for death of 8-week old fetus may be convicted ofmurder]; People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150 [intent to kill not required 338 for multiple murder special circumstance]. Underthe statutory scheme, one jury could sentence the black defendant to death while another could sparethelife of the white killer. "The prospect of such 'wanton and freakish' death sentencingis intolerable under Furman and the cases following it." (United States v. Cheely, supra, 36 F.3d at p. 1444.)In short, the multiple-murderspecial circumstance establishes unconstitutionally overbroad criteria for death-eligibility. As noted above, Matthew recognizesthat the Court has rejected this challenge to the multiple murder special circumstance. (See, e.g., People v. Sapp, supra, 31 Cal.4th at pp. 286-287; People v. Coddington, supra, 23 Cal.4" at p. 656.) In Sapp, the Court distinguished Cheely on the ground that the mail-bomb statute permitted individuals to be sentenced to deathevenifno “serious bodily harm or death were intended” and the defendants did not have the “mens rea of murderers”. (People v. Sapp, supra, 31 Cal.4® at p.287.) The flaw in the Court’s analysis is that it overlooks the example given above, the man whoaccidentally kills during the course of a robbery did not harbor malice -- the mensrea of a murderer — and did not intend either “serious bodily harm or death”. Heis guilty of first-degree murder only because ofthe felony-murder rule. The mail-bomb statute at issue in Cheely likewise created a category of felony murder and allowed anyone whofell within it to be sentenced to death. Both it and Penal Code section 190.2, subdivision (a)(3) create “a broad class, composed ofpersons ofmany different levels of culpability.” Allowing juries “to decide who among them deserves death” is what creates “the possibility of aberrational decisionsas tolife or death” and violates the Eighth Amendment. (United States v. Cheely, supra, 36 F.3d at p. 1445.) 2 An appellant may challenge the constitutionality of the statutory scheme even if the particular unfairness described may not have occurredin his case. (United States v. Cheely, supra, 36 F.3d at p. 1444, n. 11.) A schemethat allows for the sort of arbitrary sentencing describedin the text also allowsforit in individual cases, albeit in more subtle formsthat are not readily visible to those not participating in the deliberations. 339 In Coddington, the Court noted that the United States Supreme Court Supreme Court held that multiple murderis a constitutionally proper narrowing category in Lowenfield v. Phelps (1988) 484 U.S. 231. (People v. Coddington, supra, 23 Cal.4™ at p. 656.) Not so. In Lowenfield, the question presented was whether, in a non-weighing state, an aggravating circumstance on which death maybe imposed may duplicate an element of a capital crime or, put another way, a special circumstance creating death eligibility (there, intentional murder with intent to kill more than one person). The Supreme Court held that such duplication was constitutionally permissible because, while the capital murder element, or special circumstance finding, accomplished the narrowing required by the Eighth Amendment, the question in the penalty phase was whether mitigation outweighed aggravation. (Id. at pp. 241-246.) The Court was simply not presented with the question whether the multiple-murder special circumstance adequately narrowedthe class of personseligible for the death penalty. That issue wasneither raised by the defendant nor discussed by the Court. . Forall ofthese reasons, Matthew respectfully requests that the Court revisit the merits ofthis argument. If it does, the special circumstance finding must be stricken, which shall render the judgment of death void. (See Godfrey v. Georgia, supra, 446 U.S.at pp. 422-33 [death sentence vacated where Supreme Court finds sole eligibility factor unconstitutionally broad]; Wade v. Calderon (9" Cir. 1994) 29 F.3d 1312, 1322 [invalidation of sole special circumstance requires per se reversal].) XVIII. CALIFORNIA’S DEATH PENALTY STATUTE,AS INTERPRETED BY THIS COURT AND APPLIED AT MATTHEW’S TRIAL, VIOLATESTHEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE FEDERAL CONSTITUTION AND ITS APPLICATION TO MATTHEW’S TRIAL REQUIRES REVERSAL OF THE PENALTY JUDGMENT. 340 Manyfeatures ofthis state’s capital sentencing scheme,alone or in combination with each other, violate the United States Constitution. Because challenges to most ofthese features have been rejected by this Court, Matthew presents these arguments here in an abbreviated fashion sufficientto alert the Court to the nature ofeach claim andits federal constitutional grounds, and to provide a basis for the Court’s reconsideration. Individually and collectively, these various constitutional defects require that Matthew’s sentence beset aside. To avoid arbitrary and capricious application of the death penalty, the Eighth and Fourteenth Amendments require that a death penalty statute’s provisions genuinely narrowthe class ofpersonseligible for the death penalty and reasonably justify the imposition of a more severe sentence comparedto others found guilty ofmurder. The California death penalty statute as written fails to perform this narrowing, and this Court’s interpretations of the statute have expandedthe statute’s reach. Asapplied, the death penalty statute sweeps virtually every murderer into its grasp, and then allows any conceivable circumstance of a crime — even circumstances squarely opposed to each other(e.g., the fact that the victim was young versusthe fact that the victim was old, the fact that the victim waskilled at homeversusthe fact that the victim was killed outside the home) — to justify the imposition ofthe death penalty. Judicial interpretations of California’s death penalty statutes have placed the entire burden ofnarrowingtheclass offirst degree murderers to those most deserving of death on Penal Code section 190.2, the “special circumstances” section ofthe statute — but that section was specifically passed for the purpose of making every murderereligible for the death penalty. There are no safeguards in California during thepenalty phase that would enhancethereliability ofthe trial’s outcome. Instead, factual prerequisites to the imposition ofthe death penalty are found by jurors whoare not instructed on any burden ofproof, and who maynot agree with each otherat all. Paradoxically, the fact that “death is different” has been stood on its head to mean that procedural 341 protections taken for granted in trials for lesser criminal offenses are suspended when the question is a finding that is foundational to the imposition of death. The result is truly a “wanton and freakish” system that randomly chooses amongthe thousands ofmurderers in California a few victims ofthe ultimate sanction. The lack of safeguards needed to ensurereliable, fair determinations by the jury and reviewing courts meansthat randomnessin selecting who the State will kill dominates the entire process ofapplying the penalty of death. A. Matthew's Death Sentence Is Invalid Because Penal Code Section 190.2 Is Impermissibly Broad. California’s death penalty statute does not meaningfully narrow the pool of murderers eligible for the death penalty. The death penalty is imposed randomly on a small fraction ofthose who are death-eligible. The statute therefore is in violation ofthe Eighth and Fourteenth Amendments to the United States Constitution. As this Court has recognized, “To avoid the Eighth Amendment’s proscription againstcruel and unusual punishment, a death penalty law must provide a ‘meaningful basis for distinguishing the few cases in which the death penalty is imposed from the manycasesin whichit is not.’ (Furman v. Georgia (1972) 408 U.S. 238, 313-314 (conc. opn. of White,J.); accord Godfrey v. Georgia (1980) 446 U.S. 420, 427 (plur. opn.).)” (People v. Edelbacher, supra, 47 Cal.3d at p. 1023.) In order to meet this constitutional mandate, the states must genuinely - narrow, by rational and objective criteria, the class of murdererseligible for the death penalty: “Our casesindicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class ofpersonseligible for the death penalty.” (Zant v. Stephens, supra, 462 U.S.at p. 878.) The requisite narrowing in California is accomplishedin its entirety by the “special circumstances”set out in section 190.2. This Court has explainedthat 342 “[U]nder our death penalty law, . . . the section 190.2 ‘special circumstances’ perform the sameconstitutionally required ‘narrowing’ function as the ‘aggravating circumstances’ or ‘aggravating factors’ that someofthe other states use in their capital sentencing statutes.” (People v Bacigalupo (1993) 6 Cal.4th 857, 868.) The 1978 death penalty law came into being, however, not to narrow those eligible for the death penalty but to makeall murderers eligible. This initiative statute was enacted into law as Proposition 7 by its proponents on November7, 1978. At the time ofthe offense charged against Matthewthestatute contained twenty-six special circumstances purporting to narrow the category offirst degree murders to those murders most deserving ofthe death penalty. These special circumstances are so numerousand so broadin definition as to encompass nearly every first-degree murder, per the drafters’ declared intent. In the 1978 Voter’s Pamphlet, the proponents ofProposition 7 described certain murders not covered by the existing 1977 death penalty law, and then stated: “And ifyou wereto be killed on your way hometonight simply because the murderer was high on dope and wantedthethrill, the criminal would not receive the death penalty. Why? Because the Legislature’s weak death penalty law does not apply to every murderer. Proposition 7 would.” (See 1978 Voter’s Pamphlet, p. 34, “Arguments in Favor of Proposition 7,” emphasis added.) Section 190.2’s all-embracing special circumstances were created with an intent directly contrary to the constitutionally necessary function at the stage of legislative definition: the circumscription ofthe class ofpersonseligible for the death penalty. In California, almost all felony-murders are now special circumstance cases, and felony-murder cases include accidental and unforeseeable deaths, as well as acts committed in a panic or under the dominion of a mental breakdown,or acts committed by others. (People v. Dillon, supra, 34 Cal.3d 441.) Section 190.2’s reach has been extended to virtually all intentional murders by this Court’s construction ofthe lying-in-wait special circumstance, which the Court 343 has construed so broadly as to encompassvirtually all intentional murders. (See People v. Hillhouse, supra, 27 Cal.4th at pp. 500-501, 512-515; People v. Morales (1989) 48 Cal.3d 527, 557-558, 575.) These broad categories are joined by so manyother categories of special-circumstance murderthat the statute comes very close to achieving its goal ofmaking every murderereligible for death. A comparison of section 190.2 with Penal Code section 189, which defines first degree murder under California law, reveals that section 190.2’s sweep is so broad thatit is difficult to identify varieties of first degree murder that would not _ makethe perpetratorstatutorily death-eligible. One scholarly article has identified seven narrow,theoretically possible categories of first-degree murder that would not be capital crimes under section 190.2. (Shatz & Rivkind, The California Death Penalty Scheme: Requiem for Furman? (1977) 72 N.Y.U. L.Rev. 1283, 1324- 1326.) It is quite clear that these theoretically possible noncapital first-degree murders represent a small subset of the universe offirst degree murders. (Ibid.) Section 190.2, rather than performing the constitutionally required function of providing statutory criteria for identifying the relatively few cases for which the death penalty is appropriate, does just the opposite. It culls out a small subset of murders for which the death penalty will not be available. Section 190.2 was not intended to, and does not, genuinely narrow the class ofpersonseligible for the death penalty. The issue presented here has not been addressed by the United States Supreme Court. This Court routinely rejects challenges to the statute’s lack of any meaningful narrowing and does so with very little discussion. In People v. Stanley (1995) 10 Cal.4th 764, 842, this Court stated that the United States Supreme Court rejected a similar claim in Pulley v. Harris (1984) 465 U.S. 37, 53. Not so. In Harris, the issue before the court was not whether the 1977 law metthe Eighth Amendment’s narrowing requirement, but rather whether the lack of inter-case proportionality review in the 1977 law rendered that law unconstitutional. Further, the high court itself contrasted the 1977 law with the 1978 law under which 344 Matthew was convicted, noting that the 1978 law had “greatly expanded”the list of special circumstances. (Pulley v. Harris, supra, 465 US. at p. 52, n. 14.) The United States Supreme Court has madeit clear that the narrowing function, as opposedto the selection function, is to be accomplished by the legislature. The electorate in California and the drafters ofthe Briggs Initiative threw down a challenge to the courts by seeking to make every murderereligible for the death penalty. This Court should accept that challenge, review the death penalty schemecurrently in effect, and strike it down as so all-inclusive as to guarantee the arbitrary imposition of the death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and prevailing internationallaw. B. Matthew's Death Sentence Is Invalid Because Penal Code § 190.3(a) as Applied Allows Arbitrary and Capricious Imposition of Death in Violation of the Fifth, Sixth,Eighth, and Fourteenth Amendments to the United States Constitution Section 190.3, subdivision (a) violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution in that it has been applied in such a wanton and freakish mannerthat almostall features of every murder, even features squarely at odds with features deemed supportive of death sentences in other cases, have been characterized by prosecutors as “aggravating” within the statute’s meaning. Factor(a), listed in section 190.3, directs the jury to consider in aggravation the “circumstancesofthe crime.” Havingat all times found that the broad term “circumstancesofthe crime” met constitutional scrutiny, this Court has never applied a limiting construction to this factor other than to agree that an aggravating factor based on the “circumstances ofthe crime” must be somefact beyond the elements ofthe crime itself. (People v. Dyer (1988) 45 Cal.3d 26, 78.) Indeed, the Court has allowed extraordinary expansionsof factor (a), approving reliance 345 on the “circumstance ofthe crime” aggravating factor because three weeksafter the crime defendant sought to conceal evidence (People v. Walker (1988) 47 Cal.3d 605, 639 and n.10), or had a “hatred ofreligion” (People v. Nicolaus (1991) 54 Cal.3d 551, 581-582), or threatened witnesses after his arrest (People v. Hardy, supra, 2 Cal.4" at p. 204), or disposed ofthe victim’s body in a manner that precluded its recovery (People v. Bittaker (1989) 48 Cal.3d 1046, 1110 and n. 35). | The purpose of section 190.3, accordingto its language and according to interpretations by both the California and United States Supreme Courts,is to inform the jury ofwhatfactors it should consider in assessing the appropriate penalty. Although factor (a) has survived a facial Eighth Amendmentchallenge (Tuilaepa v. California, supra, 512 U.S. at pp. 987-988), it has been used in ways so arbitrary and contradictory as to violate both the federal guarantee of due process of law and the Eighth Amendment. Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstanceofthe crime, even thosethat, from case to case, reflect starkly opposite circumstances. Thus, prosecutors have been permitted to argue, asillustrated by this case, that “circumstances ofthe crime”is an aggravating factor to be weighed on death’sside ofthe scale: a) Because the defendant struck many blowsandinflicted multiple wounds or because the defendant killed with a single execution-style wound”; 43 See, e.g., People v. Morales, No. $004552, RT 3094-95 (defendantinflicted many blows); People v. Zapien, No.S004762, RT 36-38 (same); People v. Lucas, No. $004788, RT 2997-98 (same); People v. Carrera, No. S004569, RT160-61 (same). Compare,e.g., People v. Freeman, No.S004787, RT 3674, 3709 (defendantkilled with single wound); Peoplev. Frierson, No.$004761, RT 3026- 27 (same). 346 b) Because the defendantkilled the victim for some purportedly aggravating motive (money, revenge, witness-elimination, avoiding arrest, sexual gratification) or because the defendant killed the victim without any motive at all”; c) Because the defendantkilled the victim in cold blood or because the defendantkilled the victim during a savage frenzy; d) Because the defendant engaged in a cover-up to conceal his crime or because the defendant did not engage in a cover-up and so must have been proud of it’: e) Because the defendant madethe victim endurethe terror of anticipating a violent death or because the defendantkilled instantly without any warning”; “4 See, e.g., People v. Howard, No.S004452, RT 6772 (money); People v. Allison, No. S004649, RT 968-69 (same); People v. Belmontes, No. $004467, RT 2466 (eliminate a witness); People v. Coddington, No. S008840, RT 6759- 60(sexual gratification); People v. Ghent, No. 8004309, RT 2553-55 (same); People v. Brown, No. $004451, RT 3543-44 (avoid arrest); People v. McLain, No. S004370, RT 31 (revenge). Compare, e.g., People v. Edwards, No.S004755, RT 10,544 (defendant killed for no reason); People v. Osband, No.S005233, RT 3650 (same); People v. Hawkins, No. S014199, RT 6801 (same). . 4S See,e.g., People v. Visciotti, No.S004597, RT 3296-97 (defendantkilled in cold blood). Compare,e.g., People v. Jennings, No.S004754, RT 6755 (trial court finding that defendant killed victim in savage frenzy). 46 See,e.g., People v. Stewart, No.S020803, RT 1741-42 (defendant attempted to influence witnesses); People v. Benson, No. $004763, RT 1141 (defendantlied to police); People v. Miranda, No.S004464, RT 4192 (defendant did not seek aid for victim). Compare, e.g., People v. Adcox, No.S004558, RT 4607 (defendantfreely informed others about crime); People v. Williams, No. S004365, RT 3030-31 (same); People v. Morales, No. S004552, RT 3093 (defendant failed to engage in a cover-up). ‘7 See, e.g., People v. Webb, No.S006938, RT 5302; Peoplev. Davis, No.S014636, RT 11,125; People v. Hamilton, No. S[004363, RT 4623. Compare, e.g.. People v. Freeman, No.S004787, RT 3674 (defendantkilled victim instantly); People v. Livaditis, No. $004767, RT 2959 (same). 347 f) Because the victim had children or because the victim had not yet had a chanceto have children*®: g) Becausethe victim struggled prior to death or because the victim did not struggle”; h) Because the defendant hada prior relationship with the victim or because the victim was a complete stranger to the defendant”’. These examples show that absent any limitation on the “circumstances ofthe crime” aggravating factor, different prosecutors have urgedjuries to findthis aggravating factor andplace it on death’s side ofthe scale based on squarely conflicting circumstances. Ofequal importanceto the arbitrary and capricious use of contradictory circumstances ofthe crime to support a penalty of death is the use ofthe “circumstancesofthe crime” aggravating factor to embrace facts which coverthe entire spectrum offacets inevitably present in every homicide: a) Theageofthe victim. Prosecutors have argued, andjuries werefree to find, that factor (a) was an aggravating 48 See, e.g., People v. Zapien, No.S004762, RT 37 (Jan 23, 1987) (victim had children). Compare, e.g., People v. Carpenter, No.S004654, RT 16,752 (victim had notyet had children). ” See, e.g., People v. Dunkle, No.S014200, RT 3812 (victim struggled); People v. Webb, No. S006938, RT 5302 (same); People v.Lucas, No. S$004788, RT 2998 (same). Compare, e.g., People v. Fauber, No.S005868, RT 5546-47 (no evidenceofa struggle); People v. Carrera, No.S004569, RT 160 (same). 50 See, e.g., People v. Padilla, No. 014496, RT 4604 (priorrelationship); People v. Waidla, No. S020161, RT 3066-67 (same); People v. Kaurish (1990) 52 Cal.3d 648, 717 (same). Compare, e.g., People v. Anderson, No. $004385, RT 3168-69 (noprior relationship); People v. McPeters, No. S004712, RT 4264 (same). 348 circumstance because the victim was a child, an adolescent, a young adult, in the prime oflife, or elderly”); b) The method ofkilling. Prosecutors have argued, and juries werefree to find, that factor (a) was an aggravating circumstance because the victim was strangled, bludgeoned, shot, stabbed or consumed by fire’: c) The motiveofthe killing. Prosecutors have argued, and juries were free to find, that factor (a) was an aggravating circumstance because the defendant killed for money, to eliminate a witness, for sexual gratification, to avoid arrest, for revenge, or for no motiveat all>: d) The time ofthe killing. Prosecutors have argued, and juries werefree to find, that factor (a) was an aggravating 3 See, e.g., People v. Deere, No. 8004722, RT 155-56 (victims were young, ages 2 and 6); People v. Bonin, No.S004565, RT 10,075 (victims were adolescents, ages 14, 15, and 17); People v. Kipp, No. $009169, RT 5164(victim wasa young adult, age 18); People v. Carpenter, No. S004654, RT 16, 752 (victim was 20), People v. Phillips, No. 21374 (26-year-old victim “in the prime ofhis life”); People v. Samayoa, No. 8006284, XL RT 49 (victim was an adult "in her prime"); People v. Kimble, No. 8004364, RT 3345(61-year-old victim was "finally in a position to enjoythe fruits of hislife's efforts"); People v. Melton, No.S004518, RT 4376 (victim was 77); People v. Bean, No. $004387, RT 4715- 16 (victim was "elderly"). 2 See, e.g., People v. Clair, No.S004789, RT 2474-75 (strangulation); People v. Kipp, No. 8004784, RT 2246 (same); People v. Fauber, No. 005868, RT 5546 (use of an ax); People v. Benson, No. S004763, RT 1149 (use of a hammer); People v. Cain, No. $006544, RT 6786-87 (use ofa club); People v. Jackson, No. S010723, RT 8075-76 (use of a gun); People v. Reilly, No. S004607, RT 14040 (stabbing); People v. Scott,No. $010334, RT 847(fire). See, e.g., People v. Howard, No.S004452, RT 6772 (money); Peoplev. Allison, No. $004649, RT 969-70 (same); People v. Belmontes, No. $004467, RT 2466 (eliminate a witness); People v. Coddington, No. $008840, RT 6759- 61(sexual gratification); People v. Ghent, No. S004309, RT 2553-55 (same); People v. Brown, No. 8004451, RT 3544 (avoid arrest); People v. McLain, No. 349 circumstance because the victim was killed in the middle of the night, late at night, early in the morning or in the middle ofthe day”4. e) Thelocation ofthe killing. Prosecutors have argued, and juries were free to find, that factor (a) was an aggravating circumstance because the victim was killed in her own home, in a public bar, in a city park or in a remote location. The foregoing examples ofhow the factor (a) aggravating circumstance is actually being applied in practice makeclear that it is being relied upon as an aggravating factor in every case, by every prosecutor, without any limitation whatever. As a consequence, from case to case, prosecutors have been permitted to turn entirely opposite facts — or facts that are inevitable variations of every homicide — into aggravating factors which the jury is urged to weigh on death’s side ofthe scale. In practice, section 190.3’s broad “circumstances ofthe crime” aggravating factor licenses indiscriminate imposition ofthe death penalty upon no basis other than “that a particular set of facts surrounding a murder, . . . were enough in themselves, and without some narrowing principles to apply to those facts, to warrant the imposition ofthe death penalty.” (Maynard v. Cartwright, supra, 486 USS.at p. 363 [discussing the holding in Godfrey v. Georgia, supra, 446 U.S.at p. 420].) S004370, RT 31 (revenge); People v. Edwards, No.S004755, RT 10544 (no motiveatall). 4 See, e.g., People v. Fauber, No.S005868, RT 5777 (early morning); People v. Bean, No. S004387, RT 4715 (middle ofthe night); People v. Avena, No. S004422, RT 2603-04 (late at night); People v. Lucero, No. $012568, RT4125-26 (middle ofthe day). 35 See, e.g., Peopie v. Anderson, No.S004385, RT 3167-68 (victim's home); People v. Cain, No. 8006544, RT 6787(same); People v. Freeman, No. $004787, RT 3674, 3710-11 (public bar); People v. Ashmus, No. S004723, RT 7340-41 350 Cc. California’s Death Penalty Statute Contains No Safeguards to Avoid Arbitrary and Capricious Sentencing and Deprives Defendants of the Right to a Jury Trial on Each Factual Determination Prerequisite to a Sentence of Death; it Therefore Violates the Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution Asshown above, California’s death penalty statute effectively does nothing to narrow the pool ofmurderers to those most deserving of death in eitherits “special circumstances” section (Pen. Code, § 190.2) or in its sentencing guidelines (Pen. Code, § 190.3). Section 190.3, subdivision (a) allows prosecutors to argue that every feature of a crime that can be articulated is an acceptable aggravating circumstance, even features that are mutually exclusive. Furthermore, there are none ofthe safeguards commonto other death penalty sentencing schemes to guard against the arbitrary imposition of death. Juries do not have to make written findings or achieve unanimity as to aggravating circumstances. They do not have to believe beyond a reasonable doubt that aggravating circumstances are proved, that they outweigh the mitigating circumstances,or that death is the appropriate penalty. In fact, except as to the existence of other criminal activity and prior convictions, juries are not instructed on any burden ofproofat all. Not only is inter-case proportionality review not required; it is not permitted. Underthe rationale that a decision to impose deathis “moral” and “normative,” the fundamental components ofreasoned decision- makingthat applyto all other parts ofthe law have been banished from the entire process of making the most consequential decision a juror can make — whetheror not to impose death. (city park); People v. Carpenter, No. 8004654, RT 16,749-50 (forested area); People v. Comtois, No. S017116, RT 2970 (remote, isolated location). 351 1. Matthew’s death verdict was not premised on findings beyond a reasonable doubt by a unanimousjury that one or more aggravating factors existed and that these factors outweighed mitigating factors; his constitutional right to jury determination beyond a reasonable doubt ofall facts essential to the imposition of a death penalty was thereby violated. Matthew’s jury wasnottold that it had to find any aggravating factor true beyond a reasonable doubt. The jurors were not told that they needed to agreeat all on the presence of any particular aggravating factor, or that they had to find beyond a reasonable doubt that aggravating factors outweighed mitigating factors before determining whetheror not to impose a death sentence. These omissions were consistent with this Court’s previous interpretations of California’s statute. In People v. Fairbank (1997) 16 Cal.4th 1223, 1255, this Court said that “neither the federal nor the state Constitution requires the jury to agree unanimously as to aggravating factors, or to find beyond a reasonable doubt that aggravating factors exist, [or] that they outweigh mitigating factors . . .” But these interpretations have been squarely rejected by the United States Supreme Court’s decisions in Apprendi v. New Jersey, supra, 530 U.S. 466 [hereinafter Apprendi]; Ring v. Arizona, supra, 536 U.S. 584 [hereinafter Ring]; and Blakely v. Washington (2004) 542 U.S.__, 124 S.Ct. 2531 [hereinafter Blakely]. In Apprendi, the High Court held that a state may not impose a sentence greater than that authorized by the jury’s simple verdict of guilt unless the facts supporting an increased sentence (other than a prior conviction) are also submitted to the jury and proved beyond a reasonable doubt. (Apprendi v. New Jersey, supra, 530 U.S.at p. 478.) In Ring, the High Court struck down Arizona’s death penalty scheme, which authorized a judgesitting without ajury to sentence a defendant to death if there was at least one aggravating circumstance and no mitigating circumstances sufficiently substantial to call for leniency. (Ring v. Arizona, supra, 536 U.S.at p. 352 593.) The Court acknowledged that in a prior case reviewing Arizona’s capital sentencing law (Walton v. Arizona (1990) 497 U.S. 639)it had held that aggravating factors were sentencing considerations guiding the choice between life and death, and not elements of the offense. (Id. at p. 598.) The Court found that in light ofApprendi, Walton no longer controlled. Any factual finding which can increase the penalty is the functional equivalent of an elementofthe offense, regardless ofwhen it must be found or what nomenclature is attached; the Sixth and Fourteenth Amendments require that it be found by a jury beyond a reasonable doubt. Last year in Blakely, the High Court considered the effect ofApprendi and Ring in a case where the sentencing judge was allowed to impose an “exceptional” sentence outside the normal range uponthe finding of “substantial and compelling reasons.” (Blakely v. Washington, supra, 124 S.Ct. at p. 2535.) The State of Washington set forth illustrative factors that included both aggravating and mitigating circumstances; one ofthe former was whether the defendant’s conduct manifested “deliberate cruelty” to the victim. (Ibid.) The Supreme Court ruled that this procedure was invalid becauseit did not comply with the right to a jury trial. (Id. at p. 2543.) In reachingthis holding, the Supreme Court stated that the governing rule since Apprendi is that other than a prior conviction, any fact that increases the penalty ofthe crime beyondthe statutory maximum must be submitted to the jury and found beyond a reasonable doubt; “the relevant ‘statutory maximum’is not the maximum sentence a judge may imposeafter finding additional facts, but the maximum he may impose without any additional findings.” (Id.at p. 2537.) As explained below, California’s death penalty scheme, as interpreted by this Court, does not comport with the principles set forth in Apprendi, Ring, and Blakely, and violates the federal constitution. 353 a. In the wake of Apprendi, Ring, and Blakely, any jury finding necessary to the imposition of death must be found true beyond a reasonable doubt. Twenty-six states require that factors relied on to impose death in a penalty phase must be proven beyond a reasonable doubt by the prosecution, and three additional states have related provisions.°©° Only California and four otherstates (Florida, Missouri, Montana, and New Hampshire) fail to statutorily address the matter. California law as interpreted by this Court does not require that a reasonable doubt standard be used during anypart ofthe penalty phase ofa %6 See Ala. Code, § 13A-5-45(e) (1975); Ark. Code Ann., § 5-4-603(Michie 1987); Colo. Rev. Stat. Ann., § 16-11-104-1.3-1201(1)(d) (West2002); Del. Code Ann.tit. 11, § 4209(c)(3)a.1. (2002); Ga. Code Ann., §17-10-30(c) (Harrison 1990); Idaho Code, § 19-2515(3)(b) (2003);Ill. Ann.Stat. ch. 38, para. 9-1(f) (Smith-Hurd 1992); Ind. Code Ann., §§ 35-50-2-9(a), (e) (West 1992); Ky. Rev. Stat. Ann., § 532.025(3) (Michie 1992); La.Code Crim. Proc. Ann.art. 905.3 (West 1984); Md. Ann. Codeart. 27, §§413(d), (f), (g) (1957); Miss. Code Ann., § 99-19-103 (1993); Neb. Rev.Stat., § 29-2520(4)(f) (2002) ; Nev. Rev. Stat. Ann., § 175.554(3) (Michie1992); N.J.S.A. 2C:11-3c(2)(a); N.M. Stat. Ann., § 31-20A-3 (Michie1990); Ohio Rev. Code, § 2929.04 (Page’s 1993); Okla. Stat. Ann.tit. 21, §701.11 (West 1993); 42 Pa. Cons. Stat. Ann., § 9711(c)(1)(iii) (1982); S.C.Code Ann., §§ 16-3-20(A), (C) (Law. Co-op (1992); S.D. Codified LawsAnn., § 23A- 27A-5 (1988); Tenn. Code Ann. §, 39-13-204(f) (1991); Tex.Crim. Proc. Code Ann., § 37.071(c) (West 1993); State v. Pierre (Utah 1977) 572 P.2d 1338, 1348; Va. Code Ann., § 19.2-264.4(C) (Michie1990); Wyo.Stat., §§ 6-2-102(d)(i)(A), (e)(i) (1992). Washingtonhasa related requirement that before making a death judgment, the jury must makea finding beyond a reasonable doubtthat no mitigating circumstancesexist sufficient to warrant leniency. (Wash. Rev.Code Ann.§ 10.95.060(4) (West 1990).) And Arizona and Connecticut require that the prosecution prove the existence ofpenalty phase aggravating factors, but specify no burden. (Ariz. Rev. Stat. Ann. § 13-703 (1989); Conn. Gen. Stat. Ann. § 53a- 46a(c) (West 1985). On remandin the Ring case, the Arizona Supreme Court found that both the existence of one or more aggravating circumstances and the fact that aggravation substantially outweighs mitigation were factual findings that must be madeby ajury beyond a reasonable doubt. (State v. Ring (Az. 2003) 65 P.3d 915.) 354 defendant’s trial, except as to proofofprior criminality relied upon as an aggravating circumstance — and even in that context the required finding need not be unanimous. (People v. Fairbank, supra, 16 Cal.4™ 1223; see also People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are “moral and . . . not factual,” and therefore not “susceptible to a burden-of-proof quantification”].) California statutory law and jury instructions, however, do require fact- finding before the decision to impose death or a lesser sentenceis finally made. As a prerequisite to the imposition of the death penalty, section 190.3 requires the “trier of fact” to find that at least one aggravating factor exists and that such aggravating factor (or factors) substantially outweigh any andall mitigating factors. As set forth in California’s “principal sentencing instruction” (People v. Famam (2002) 28 Cal.4th 107, 177), which was read to Matthew’s jury (CT 789),“an aggravating factor is anyfact, condition or event attending the commission of a crime whichincreases its guilt or enormity, or addsto its injurious consequences which is above and beyond the elementsofthe crime itself.” (CALJIC No. 8.88, emphasis supplied.) Thus, before the process ofweighing aggravating factors against mitigating factors can begin, the presence of one or more aggravating facts must be found by the jury. And before the decision whetheror not to impose death can be made, the jury mustfind that aggravating factors substantially outweigh mitigating factors.~” These factual determinations are essential prerequisites to death-eligibility, but do 37 In Johnson v. State (Nev. 2002) 59 P.3d 450 the Nevada SupremeCourt foundthat under a statute similar to California’s, the requirement that aggravating factors outweigh mitigating factors was a factual determination, and not merely discretionary weighing, and therefore “even though Ring expressly abstained from ruling on any ‘Sixth Amendmentclaim with respect to mitigating circumstances,’(fn. omitted)we conclude that Ring requires a jury to makethis finding as well: ‘If a State makes an increase in a defendant’s authorized punishment contingenton the finding ofa fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.’” (Id. at p. 460.) 355 not mean that death is the inevitable verdict; the jury can still reject death as the appropriate punishmentnotwithstanding these factualfindings.” In People v. Anderson (2001) 25 Cal.4th 543, 589, this Court held that since the maximum penalty for one convicted of first degree murder with a special circumstance is death (Pen. Code § 190.2(a)), Apprendi does not apply. After Ring, this Court repeated the same analysis in People v. Snow(2003) 30 Cal.4th 43 [hereinafter Snow], and People v. Prieto (2003) 30 Cal.4th 226[hereinafter Prieto]: “Because any finding of aggravating factors during the penalty phase does not ‘increase the penalty for a crime beyondthe prescribed statutory maximum’ (citation omitted), Ring imposes no newconstitutional requirements on California’s penalty phase proceedings.” (People v. Prieto, supra, 30 Cal.4th at 263.) This holding is based on a truncated view of California law. As section 190, subdivision (a), indicates, the maximum penalty for any first degree murder conviction is death. Arizona advanced precisely the same argument in Ring. It pointed out that a finding of first degree murder in Arizona, like a finding of one or morespecial circumstances in California, leads to only two sentencing options: death orlife imprisonment, and Ring was therefore sentenced within the range ofpunishment authorized by the jury’s verdict. The Supreme Court squarely rejected the state’s argument: “This argument overlooks Apprendi’s instruction that ‘the relevant inquiry is one not of form,but ofeffect.’ 530 U.S., at 494, 120 S.Ct. 2348. In effect, ‘the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishmentthan that authorized by the jury’s guilty verdict.’ (Ibid.; see 200 Ariz., at 279, 25 P.3d, at 1151)”. (Ring, supra, 124 S.Ct. at p. 2431.) 8 This Court has held that despite the “shall impose” language of section 190.3, even ifthe jurors determine that aggravating factors outweigh mitigating factors, they maystill impose a sentence oflife in prison. (People v. Allen (1986) 42 Cal.3d 1222, 1276-1277; People v. Brown, supra, 40 Cal.3d at p. 541.) 356 In this regard, California’s statute is no different than Arizona’s. Just as whena defendantis convicted of first degree murder in Arizona, a California conviction offirst-degree murder, even with a finding of one or more special circumstances, “authorizes a maximum penalty of death only in a formal sense.” (Ring, supra, 530 U.S.at p. 604.) Section 190, subdivision (a) providesthat the punishmentfor first degree murderis 25 yearsto life, life without possibility of parole (“LWOP”’), or death; the penalty to be applied “shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4 and 190.5.” Neither life without parole nor death can actually be imposed unless the jury finds a special circumstance(section 190.2). Death is not an available option unless the jury makes the further findings that one or more aggravating circumstances exist and substantially outweigh the mitigating circumstances. (Section 190.3; CALJIC 8.88 (7th ed., 2003). It cannot be assumedthat a special circumstance suffices as the aggravating circumstance required by section 190.3. Therelevant jury instruction defines an aggravating circumstanceas fact, circumstance, or event beyond the elements ofthe crimeitself (CALJIC 8.88), and this Court has recognized that a particular special circumstance can even be argued to the jury as a mitigating circumstance. (See People v. Hernandez (2003) 30 Cal.4th 835 [financial gain special circumstance (section 190.2, subd. (a)(1)) can be argued as mitigating if murder was committed by an addict to feed addiction].) Arizona’sstatute says that the trier of fact shall impose death ifthe sentencer finds one or more aggravating circumstances, and no mitigating circumstancessubstantial enough to call for leniency, while California’s statute provides that the trier of fact may impose death only ifthe aggravating circumstances substantially outweigh the mitigating circumstances. There is no meaningful difference between the processes followed under each scheme. As such, this Court’s reasoning in Snow andPrieto is faulty. “If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact ~ no matter how the State labels it — 357 must be found by a jury beyond a reasonable doubt.” (Ring, supra, 530 U.S.at p. 604.) In Blakely, the High Court madeit clear that, as Justice Breyer pointed out, “a jury mustfind, not only the facts that make up the crime ofwhich the offender is charged, but also all (punishment-increasing) facts about the way in which the offender carried out that crime.” (Blakely, supra, 124 S.Ct. at p. 2551.) The issue ofthe Sixth Amendment’s applicability hinges on whether as a practical matter, the sentencer must make additional findings during the penalty phase before determining whetheror not the death penalty can be imposed. In California, as in Arizona, the answeris yes. This Court has recognized that fact-finding is one ofthe functions of the sentencer; California statutory law, jury instructions, and the Court’s previous decisions leave no doubt that facts must be found before the death penalty may be considered. The Court held that Ring does not apply, however, because the facts found at the penalty phase are “facts which bear upon, but do not necessarily determine, which ofthese twoalternative penalties is appropriate.” (People v. Snow, supra, 30 Cal.4th at p. 126, n. 32, citing People v. Anderson, supra, 25 Cal.4th at pp. 589-590, n.14.) The Court has repeatedly soughtto reject Ring’s applicability by comparing the capital sentencing process in California to “a sentencing court’s traditionally discretionary decision to impose one prison sentence rather than another.” (People v. Prieto, supra, 30 Cal.4th at p. 275; People v. Snow, supra, 30 Cal.4th at p. 126, n. 32.) The distinction between facts that “bear on” the penalty determination and facts that “necessarily determine” the penalty is a distinction without a difference. There are no facts, in Arizona or California, which are “necessarily determinative” of a sentence — in both states, the sentenceris free to impose a sentence ofless than death regardless ofthe aggravating circumstances. In both states, any one of a numberofpossible aggravating factors may be sufficient to impose death — no single specific factor must be found in Arizona or California. And, in both states, the absence of an aggravating circumstance precludesentirely the imposition of a 358 death sentence. And Blakely makescrystal clear that, to the dismay ofthe dissent, the “traditional discretion” of a sentencing judge to impose a harsher term based on facts not found by the jury or admitted by the defendant does not comport with the federal constitution. In Prieto, the Court summarized California’s penalty phase procedure as follows: “Thus, in the penalty phase, the jury merely weighs the factors enumerated in section 190.3 and determines “whether a defendant eligible for the death penalty should in fact receive that sentence.’ (Tuilaepa v. California (1994) 512 U.S. 967, 972.) No single factor therefore determines which penalty — death or life without the possibility ofparole — is appropriate.” (People v. Prieto, supra, 30 Cal.4th at p. 263.) This summary omits the fact that death is simply not an option unless and until at least one aggravating circumstance is found to have occurred or be present — otherwise, there is nothing to put on the scale in support ofa death sentence. (See, e.g., People v. Duncan (1991) 53 Cal.3d 955, 977-978.) A California jury must first decide whether any aggravating circumstances, as defined by section 190.3 and the standard penalty phase instructions, exist in the case before it. Only after this initial factual determination has been made can the jury move on to “merely” weigh those factors against the proffered mitigation. Further, as noted above, the Arizona Supreme Court has foundthat this weighing processis the functional equivalent of an element of capital murder, andis therefore subject to the protections ofthe Sixth Amendment. (See State v. Ring (Az. 2003) 65 P.3d 915, 943 [“Neither a judge, under the superseded statutes, nor the jury, under the new statutes, can impose the death penalty unless that entity concludesthat the mitigating factors are not sufficiently substantialto call for leniency.”]; accord State v. Whitfield (Mo. 2003) 107 S.W.3d 253; State v. Ring, supra, 65 P.3d 915; Woldt v. People (Colo. 2003) 64 P.3d 256; Johnson v. State (Nev. 2002) 59 P.3d 450.) It is true that a sentencer’s finding that the aggravating factors substantially outweigh the mitigating factors involves a mix of factual and normative elements, 359 but this does not makethis finding any less subject to the Sixth and Fourteenth Amendmentprotections applied in Apprendi, Ring, and Blakely. In Blakely itself the State of Washington argued that Apprendi and Ring should not apply because the statutorily enumerated grounds for an upward sentencing departure were illustrative only, not exhaustive, and henceleft the sentencing judge free to identify and find an aggravating factor on his own — a finding which, Matthew submits, must inevitably involve both normative (“what would make this crime worse’) and factual (“what happened”) elements. The High Court rejected the state’s contention, finding Ring and Apprendi fully applicable even where the sentencer is authorized to make this sort of mixed normative/factual finding, as long as the finding is a prerequisite to an elevated sentence. (People v. Blakely, supra, 124 S.Ct. at p. 2538.) Thus, under Apprendi, Ring, and Blakely, whether the finding is a Washington state sentencer’s discernment of a non-enumerated aggravating factor or a California sentencer’s determination that the aggravating factors substantially outweigh the mitigating factors, the finding must be made by a jury and must be made beyond a reasonable doubt.” °° ‘In Peoplev. Griffin (2004) 33 Cal.4th 536, in this Court’s first post-Blakely discussion ofthe jury’s role in the penalty phase, the Court cited Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424,432, 437, for the principle that an “award ofpunitive damages doesnot constitute a finding of ‘fact[ ]’: “imposition ofpunitive damages”is not “essentially a factual determination,” but instead an “expression of ... moral condemnation.” (Peoplev. Griffin, supra, 33 Cal.4th at p. 595.) In Leatherman, however, before the jury could reach its ultimate determination ofthe quantity ofpunitive damages, it had to answer “Yes”to the following interrogatory: Has Leatherman shown byclear and convincing evidence that by engaging in false advertising or passing off, Cooper acted with malice, or showed a reckless and outrageousindifference to a highly unreasonable risk of harm and has acted with a conscious indifference to Leatherman's rights? (Leatherman, supra, 532 U.S. at p. 429.) 360 The appropriate questions regarding the Sixth Amendment’s application to California’s penalty phase, according to Apprendi, Ring and Blakely are: (1) What is the maximum sentence that could be imposed without a finding of one or more aggravating circumstancesas defined in CALJIC 8.88? The maximum sentence wouldbelife without possibility ofparole. (2) What is the maximum sentence that could be imposed during the penalty phase based on findings that one or more aggravating circumstances are present? The maximum sentence, without any additional findings, namely that aggravating circumstances substantially outweigh mitigating circumstances, would be life without possibility ofparole. Finally, this Court has relied on the undeniable fact that “death is different” as a basis for withholding rather than extending procedural protections. (Peoplev. Prieto, supra, 30 Cal. 4th at p. 263.) In Ring, Arizona also soughtto justify the lack of a unanimousjury finding beyond a reasonable doubt of aggravating circumstances by arguing that “death is different.” This effort to turn the High Court’s recognition ofthe irrevocable nature of the death penalty to its advantage was rebuffed: Apart from the Eighth Amendmentprovenance of aggravating factors, Arizona presents ‘no specific reason for excepting capital defendants from the constitutional protections . . . extend[ed] to defendants generally, and noneis readily apparent.’ [Citation.] The This finding, which was a prerequisite to the award ofpunitive damages, is very like the aggravating factors at issue in Blakely. Leatherman was concerned with whether the Seventh Amendment’s ban on re-examination ofjury verdicts restricted appellate review of the amount of a punitive damages awardto a plain- error standard, or whether such awards could be reviewed de novo. Although the Court found that the ultimate amount was a moral decision that should be reviewed de novo,it made clear that all findings that were prerequisite to the dollar amount determination were jury issues. (Id. at PP. 437, 440.) Leatherman thus supports appellant’s contention that the findings ofone or more aggravating factors, and that aggravating factors substantially outweigh mitigating factors, are prerequisites to the determination ofwhether to impose death in California, and are protected by the Sixth Amendmentto the United States Constitution. 361 notion ‘that the Eighth Amendment’srestriction on a state legislature’s ability to define capital crimes should be compensated for by permitting States more leeway underthe Fifth and Sixth Amendments in proving an aggravating fact necessary to a capital sentence . . . is without precedentin our constitutional jurisprudence.’ (Ring, supra, 122 S.Ct. at p. 2442, quoting with approval Justice O’Connor’s Apprendi dissent, 530 U.S.at p. 539.) Nogreater interest is ever at stake than in the penalty phase ofa capital case. (Monge v. California (1998) 524 U.S. 721, 732 [“the death penalty is unique in its severity and its finality”].) As the High Court stated in Ring, supra, 122 S.Ct. at pp. 2432, 2443: Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. ... The rightto trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the fact-finding necessary to increase a defendant’s sentence by twoyears, but not the fact-finding necessary to put him to death. Thefinal step of California’s capital sentencing procedure is a moral and a normative one. This Court errs greatly, however, in using this fact to eliminate procedural protections that would renderthe decision a rational and reliable one and to allow the findings prerequisite to the determination to be uncertain, undefined, and subject to dispute not only as to their significance, but as to their — accuracy. This Court’s refusal to accept the applicability ofRing to any part of California’s penalty phase violates the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. b. The requirements ofjury agreement and unanimity. 362 Matthew recognizesthat this Court has held that when an accused's life is at stake during the penalty phase, "there is no constitutional requirementfor the jury to reach unanimous agreementon the circumstances in aggravation that support its verdict." (See People v. Bacigalupo, supra, 1 Cal.4th at p. 147; see also People v. Taylor (1990) 52 Cal.3d 719, 749 ["unanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard"].) Nevertheless, Matthew asserts that the failure to require unanimity as to aggravating circumstances encouraged the jurors to act in an arbitrary, capricious, and unreviewable manner, slanting the sentencing process in favor of execution. The absence of a unanimity requirementis inconsistent with the Sixth Amendment jury trial guarantee, the Eighth Amendmentrequirement of enhancedreliability in capital cases, and the Fourteenth Amendmentrequirements ofdue process and equal protection. (See Ballew v. Georgia (1978) 435 U.S. 223, 232-234; Woodson v. North Carolina, supra, 428 U.S.at p. 305.) With respect to the Sixth Amendment argument, the Court's reasoning and decision in Bacigalupo- particularly its reliance on Hildwin v. Florida (1980) 490 U.S. 638, 640 - should be reconsidered. In Hildwin, the Supreme Court noted that the Sixth Amendmentprovides no right to jury sentencing in capital cases, and held that "the Sixth Amendmentdoesnot require that the specific findings authorizing the imposition ofthe sentence of death be madeby the jury." (Id.at pp. 640-641.) This is not, however, the sameas holding that unanimity is not required. Moreover, the Supreme Court's holding in Ring makesthe reasoning in Hildwin questionable, and undercuts the constitutional validity of this Court's ruling in Bacigalupo.”' 60 The absenceofhistorical authority to support such a practice makesit further violative ofthe Sixth, Eighth, and Fourteenth Amendments. (See,e.g., Murray’s Lessee (1855) 59 U.S. (18 How.) 272; Griffin v. United States (1991) 502 U.S. 46, 51.) 6! Matthew acknowledgesthat the Court recently held that Ring does not require a California sentencing jury to find unanimously the existence of an 363 Applying the Ring reasoning here, jury unanimity is required under the overlapping principles ofthe Sixth, Eighth, and Fourteenth Amendments. "Jury unanimity ? is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room, and thatthe jury's ultimate decision will reflect the conscience ofthe community." (McKoy v. North Carolina, supra, 494 U.S.at p. 452, con. opn. ofKennedy, J.) Indeed, the Supreme Court has held that the verdict ofeven a six-person jury in a non-petty criminal case must be unanimousto "preserve the substanceofthe jury trial right and assure the reliability of its verdict." (Brown v. Louisiana (1977) 447 U.S. 323, 334. Given the "acute needfor reliability in capital sentencing proceedings" (Monge v. California, supra, 524 U.S.at p. 732; accord Johnson v. Mississippi, supra, 486 U.S. at p. 584; Gardner v. Florida, supra, 430 U.S. at p. 359; Woodson v. North Carolina, supra, 428 U.S.at p. 305), the Sixth and Eighth Amendments are likewise notsatisfied by anything less than unanimity in the crucial findings of a capital jury. . In addition, the Constitution of this state assumes jury unanimity in criminal trials. The first sentence ofarticle I, section 16 ofthe California Constitution provides that "[t]rial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict." (See also People v. Wheeler, supra, 22 Cal.3d at p. 265 [confirming inviolability of unanimity requirementin criminal trials].) Thefailure to require that the jury unanimously find the aggravating factors true also stands in stark contrastto rules applicable in California to noncapital cases. For example, in cases where a criminal defendant has been charged with aggravating factor. (People v. Prieto, supra, 30 Cal.4th at p. 265.) Appellant raises this issue to preserve his rights to further review. 62 The federal death penalty statute also provides that a “finding with respect to any aggravating factor must be unanimous.” (21 U.S.C. § 848(k).) In addition, at least 17 death penalty states require that the jury unanimously agree on the aggravating factors proven. (See Ark. Code Ann. § 5-4-603(a)(Michie 1993); 364 special allegations that may increase the severity of his sentence, the jury must render a separate, unanimousverdict on the truth of such allegations. (See, e.g., Cal. Pen. Code § 1158, subd. (a).) Since capital defendants are entitled to more rigorous protections than those afforded noncapital defendants (see Monge v. California, supra, 524 U.S.at p. 732; Harmelin v. Michigan, supra, 501 US.at p. 994) - and, since providing more protection to a noncapital defendant than a capital defendant would violate the Equal Protection Clause ofthe Fourteenth Amendment(see, e.g., Myers v. Y1st, supra, 897 F.2d at p. 421) - it follows that unanimity with regard to aggravating circumstancesis constitutionally required. To apply the requirement to an enhancementfinding that may carry only a maximum punishmentofone year in prison, but not to a finding that could have "a substantial impact on the jury's determination whether the defendant should live or die" (People v. Medina (1995) 11 Cal.4th 694, 763-764), would byits inequity violate the Equal Protection Clause andbyits irrationality violate both the Due Process and Cruel and Unusual Punishment Clauses ofthe state and federal Constitutions, as well as the Sixth Amendment's guaranteeofa trial by jury. In Richardson v. United States (1999) 526 U.S. 813, 815-816, the United States Supreme Court interpreted 21 U.S.C. § 848(a), and held that the jury must unanimously agree on which three drug violations constituted the "continuing series ofviolations” necessary for a continuing criminal enterprise [CCE] conviction. The high court's reasonsfor this holding are instructive: Ariz. Rev.Stat., § 13-703.01(E) (2002); Colo. Rev. Stat.Ann. § 18-1.3- 1201(2)(b)(ID(A) (West 2002); Del. Code Ann.,tit. 11, §4209(c)(3)b.1. (2002); Idaho Code, § 19-2515(3)(b) (2003);Il. Ann. Stat.ch. 38, para. 9-1(g) (Smith- Hurd 1992); La. Code Crim. Proc. Ann.art.905.6 (West 1993): Md. Ann. Code art. 27, § 413(4) (1993); Miss. CodeAnn. § 99-19-103 (1992); Neb. Rev.Stat., § 29-2520(4)(f) (2002); N.H.Rev. Stat. Ann. § 630:5(IV) (1992); N.M.Stat. Ann. § 31-20A-3 (Michie1990); Okla. Stat. Ann.tit. 21, § 701.11 (West 1993); 42 Pa. Cons. Stat.Ann. § 9711(c)(1)(iv) (1982); S.C. Code Ann. § 16-3-20(C) (Law. Co- op.1992); Tenn. Code Ann. § 39-13-204(g) (1993); Tex. Crim. Proc. Code Ann.§ 37.071 (West 1993).) 365 The statute's word "violations" covers manydifferent kinds of behavior ofvarying degrees of seriousness.... At the same time, the Governmentin a CCE case may well seek to prove that a defendant, charged as a drug kingpin, has been involved in numerous underlying violations. Thefirst ofthese considerations increases the likelihood that treating violations simply as alternative means, by permitting a jury to avoid discussion ofthe specific factual details of each violation, will cover up wide disagreement amongthe jurors about just what the defendant did, and did not, do. The second consideration significantly aggravates the risk (present at least to a small degree whenever multiple meansare at issue) that jurors, unless required to focus upon specific factual detail, will fail to do so, simply concluding from testimony, say, ofbad reputation, that where there is smoke there must be fire. (Id. at p. 819.) These reasons are doubly applicable when theissueis life or death. Where a statute (like California's) permits a wide range ofpossible aggravators and the prosecutor offers up multiple theories or instances of alleged aggravation, unless the jury is required to agree unanimously as to the existence of each aggravatorto be weighed on death's side ofthe scale, there is a grave risk (a) that the ultimate verdict will cover up wide disagreement amongthe jurors about just what the defendant did and didn't do and (b) that the jurors, not being forced to do so, will fail to focus upon specific factual detail and simply conclude from a wide array of proffered aggravators that where there is smoke there mustbefire, and on that basis concludethat death is the appropriate sentence. Therisk of such an inherently unreliable decision-making process is unacceptable in a capital context. The ultimate decision ofwhether or not to impose death is indeed a "moral" and "normative" decision. (People v. Hawthorne, supra, 4 Cal.4th at p. 79; People v. Hayes, supra, 52 Cal.3d at p. 643.) However, Ring and Blakeley make clear that the findings of one or more aggravating circumstances andthat the aggravating circumstances outweigh mitigating circumstances are prerequisite to considering whether death is the appropriate sentence in a California capital case. 366 These are precisely the type of factual determinations for which Matthew is entitled to unanimousjury findings beyond a reasonable doubt. It has been held that the verdict of a six-person jury must be unanimousin order to "assure . . [its] reliability." (Brown v. Louisiana, supra, 447 U.S.at p. 334.) Given the "acute needfor reliability in capital sentencing proceedings" (Monge v. California, supra, 524 U.S.at p. 732; see also Johnson v. Mississippi, supra, 486 U.S.at p. 584), the Sixth, Eighth, and Fourteenth Amendments require, a fortiori, jury unanimity on those factors warranting the death penalty. (But see People v. Taylor (1990) 52 Cal.3d 719, 749; People v. Bolin, supra, 18 Cal. 4th at pp. 335-336.) In the instant case, the jurors were specifically instructed that "[t]here is no requirementthatall jurors unanimously agree on any matter offered in aggravation or mitigation." (RT 8127.) This instruction requires reversal ofthe death verdict. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-281.) In any event, given the closeness ofthe penalty case here, it cannot be shown beyond a reasonable doubt that the error in admonishing against unanimity was harmless. (Chapman v. California, supra, 386 U.S. at pp. 23-24.) 2. The Due Process and the Cruel and Unusual Punishment Clauses of the state and federal constitutions require that the jury in a capital case be instructed that they may impose a sentence of death only if they are persuaded beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors and that death is the appropriate penalty a. Factual determinations. The outcomeofajudicial proceeding necessarily depends on an appraisal - ofthe facts. "[T]he procedures by which the facts of the case are determined assume an importance fully as great as the validity ofthe substantive rule of law to 367 be applied. And the more important the rights at stake the more important must be - the procedural safeguards surrounding thoserights." (Speiser v. Randall (1958) 357 U.S. 513, 520-521.) The primary procedural safeguard implantedin the criminal justice system relative to fact assessmentis the allocation and degree ofthe burden ofproof. The burden ofproofrepresents the obligation of a party to establish a particular degree ofbelief as to the contention sought to be proved. In criminal cases the burdenis rooted in the Due Process Clause ofthe Fifth and Fourteenth Amendments. (Inre Winship, supra, 397 U.S.at p. 364.) In capital cases "the sentencing process, as well as thetrial itself; must satisfy the requirements of the Due Process Clause." (Gardner v. Florida, supra, 430 U.S.at p. 358; see also Presnell v. Georgia (1978) 439 U.S. 14.) Aside from the question ofthe applicability ofthe Sixth Amendmentto California's penalty phase proceedings, the burden ofproof for factual determinations during the penalty phase ofa capital trial, whenlife is at stake, must be beyonda reasonable doubt. This is required by both the Due Process Clause ofthe Fourteenth Amendmentas well as the Eighth Amendment. b. Imposition oflife or death. The requirements of due processrelative to the burden ofpersuasion generally depend uponthe significance ofwhatis at stake and the social goal of reducing the likelihood oferroneousresults. (In re Winship, supra, 397 U.S.at pp. 363-364; see also Addington v. Texas (1979) 441 U.S. 418, 423.) The allocation of a burden ofpersuasion symbolizes to society in general and the jury in particular the consequences ofwhatis to be decided. In this sense, it reflects a beliefthat the more serious the consequencesofthe decision being made,the greater the necessity that the decision-maker reach "a subjective state of certitude" that the decision is appropriate. (In re Winship, supra, 397 U.S. at p. 364.) Selection of a constitutionally appropriate burden ofpersuasion is accomplished 368 by weighing "three distinct factors: . . . the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use ofthe challenged procedure." (Santosky v. Kramer (1982) 455 U.S. 743, 755; see also Matthewsv. Eldridge (1976) 424 U.S. 319, 334-335.) Looking at the "private interests affected by the proceeding,"it is impossible to conceive of an interest more significant than human life. Ifpersonal liberty is "an interest oftranscending value," (Speiser v. Randall, supra, 375 U.S. at p. 525, how much more transcendent is human life itself. Far less valued interests are protected by the requirement ofproofbeyond a reasonable doubt before they may be extinguished. (See In re Winship, supra, 397 U.S. 364 [adjudication ofjuvenile delinquency]; People v. Feagley (1975) 14 Cal.3d 338 [commitment as mentally disordered sex offender]; People v. Burnick (1975) 14 Cal1.3d 306 [same]; People v. Thomas (1977) 19 Cal.3d 630 [commitment as narcotic addict]; Conservatorship ofRoulet (1979) 23 Cal.3d 219 [appointment of conservator].) The decision to take a person's life must be made undernoless demanding a standard. Due process mandatesthat our social commitmentto the sanctity of life and the dignity ofthe individual be incorporated into the decision- making process by imposing uponthe State the burden to prove beyond a reasonable doubt that death is appropriate. Asto the "risk of error created by the State's chosen procedure," (Santosky v. Kramer, supra, 455 U.S.at p. 755), the United States Supreme Court reasoned: [I]n any given proceeding, the minimum standard ofproof tolerated by the due process requirementreflects not only the weight ofthe private and public interests affected, but also a societal judgment about how therisk of error should be distributed between the litigants.... When the State brings a criminal action to deny a defendantliberty or life, ... "the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirementthey have been protected by standards ofproofdesigned 369 to exclude as nearly as possible the likelihood ofan erroneous judgment.” [citation]. The stringency ofthe "beyond a reasonable doubt" standard bespeaksthe 'weight and gravity' ofthe private interest affected [citation], society's interest in avoiding erroneous convictions, and ajudgmentthat those interests together require that "society impos[e] almostthe entire risk of error uponitself." (Santosky v. Kentucky, supra, 455 U.S.at p. 755, quoting Addington v. Texas, supra, 441 U.S. at pp. 423, 424, 427.) Moreover, there is substantial room for error in the procedures for deciding betweenlife and death. The penalty proceedings are muchlike the child neglect proceedings dealt with in Santosky. They involve "imprecise substantive standardsthat leave determinations unusually open to the subjective values of the [jury]." (Santosky v. Kentucky, supra, 455 U.S.at p. 763.) Nevertheless, imposition of a burden ofproofbeyond a reasonable doubt can be effective in reducingthisrisk of error, since that standard has long provenits worth as "a prime instrument for reducing the risk of convictions resting on factual error." (In re Winship, supra, 397 U.S.at p. 363.) Thefinal Santosky benchmark, "the countervailing governmental interest supporting use ofthe challenged procedure," also calls for imposition ofa reasonable doubt standard. Adoption ofthat standard would not deprive the State ofthe power to impose capital punishment; it would merely serve to maximize "reliability in the determination that death is the appropriate punishmentin a specific case." (Woodson v. North Carolina, supra, 428 U.S.at p. 305.) The needforreliability is especially compelling in capital cases. (Beck v. Alabama, supra, 447 U.S.at pp. 637-638.) No greater interest is ever at stake. (See Monge v. California, supra, 524 U.S. at p. 732.) In Monge, the Supreme Court expressly applied the Santosky rationale for the beyond a reasonable doubt burden ofproofrequirementin the penalty phase of capital trials: "[I]n a capital sentencing proceeding,as in a criminal trial, 'the interests ofthe defendant[are] of such magnitudethat ... they have been protected by standards ofproof designed to 370 excludeas nearly as possible the likelihood of an erroneous judgment." (Monge v. California, supra, 524 U.S.at p. 732, quoting Bullington v. Missouri (1981) 451 U.S. 430, 441, quoting in turn Addington v. Texas, supra, 441 U.S. at pp. 423-424) (emphasis added). The sentencer of a person facing the death penalty is required by the due process and Eighth Amendmentconstitutional guarantees to be convinced beyond a reasonable doubt not only that the factual bases for its decision are true, but that death is the appropriate sentence. This Court has long held that the penalty determination in a capital case in California is a moral and normativedecision, as opposed to a purely factual one. (See, e.g., People v. Griffin, supra, 33 Cal.4th at p. 595.) Other states, however, haveruled that this sort ofmoral and normative decision is not inconsistent with a standard based on proofbeyond a reasonable doubt. This is because a reasonable doubt standard focuses on the degree of certainty needed to reach the determination, which is something not only applicable but particularly appropriate to a moral and normative penalty decision. As the Connecticut Supreme Court recently explained when rejecting an argumentthat the jury determination in the weighing processis a moral judgmentinconsistent with a reasonable doubt standard: Wedisagree with the dissent of Sullivan, C.J., suggesting that, becausethe jury's determination is a moral judgment, it is somehow inconsistent to assign a burden ofpersuasion to that determination. The dissent's contention relies on its understanding ofthe reasonable doubt standard as a quantitative evaluation of the evidence. We have already explained in this opinion that the traditional meaning of the reasonable doubt standard focuses, not on a quantification ofthe evidence, but on the degree of certainty ofthe fact finder or, in this case, the sentencer. Therefore, the nature ofthe jury's determination as a moral judgment does not render the application of the reasonable doubt standard to that determination inconsistent or confusing. On the contrary, it makes sense, and, indeed, is quite common, when making a moral determination, to assign a degree of certainty to that judgment. Put another way, the notion of a particular level of certainty is not inconsistent with the process of 371 arriving at a moral judgment; our conclusion simply assigns the law's most demandinglevel of certainty to the jury's most demanding and irrevocable moral judgment. (State v. Rizzo (Conn. 2003) 833 A.2d 363, 408, n.37.) In sum,the need for reliability is especially compelling in capital cases. (Beck v. Alabama, supra, 447 U.S. at pp. 637-638; Monge v. California, supra, 524 U.S. at p. 732.) Under the Eighth and Fourteenth Amendments, a sentence of death may not be imposed unless the sentencer is convinced beyond a reasonable doubt not only that the factual bases for its decision are true, but that death is the appropriate sentence. 3. Even if proof beyond a reasonable doubt werenot the constitutionally required burden of persuasion for finding (1) that an aggravating factor exists, (2) that the aggravating factors outweigh the mitigating factors, and (3) that death is the appropriate sentence, proof by a preponderanceof the evidence would be constitutionally compelled as to each such finding A burden ofproofof at least a preponderance is required as a matter of due process because that has been the minimum burdenhistorically permitted in any sentencing proceeding. Judges have never had the power to impose an enhanced sentence without the firm belief that whatever considerations underlay such a sentencing decision had beenat least proved to be true morelikely than not. They have never had the powerthat a California capital sentencing jury has been accorded, whichis to find “proof” of aggravating circumstances on any considerations they want, without any burdenat all on the prosecution, and sentence a person to die based thereon. The absenceofany historical authority for a sentencer to impose sentence based on aggravating circumstances found with proofless than 51% — even 20%, or 10%, or 1% — is itself ample evidence ofthe unconstitutionality of failing to assign at least a preponderance ofthe evidence 372 burden ofproof. (See, e.g., Griffin v. United States (1991) 502 U.S.46, 51 [historical practice given great weight in constitutionality determination]; Murray’s Lessee v. Hoboken Land and Improvement Co.(1855) 59 U.S. (18 How.) 272, 276-277 [due process determination informed byhistorical settled usages].) Finally, Evidence Code section 520 provides: “The party claiming that a person is guilty of crime or wrongdoing has the burden ofproofon that issue.” Thereis no statute to the contrary. In any capital case, any aggravating factor will relate to wrongdoing; those that are not themselves wrongdoing (such as, for example, age whenit is counted as a factor in aggravation) are still deemed to aggravate other wrongdoing by a defendant. Section 520 is a legitimate state expectation in adjudication andis thus constitutionally protected under the Fourteenth Amendment. (Hicks v. Oklahoma, supra, 447 U.S.at p. 343.) Accordingly, Matthew respectfully suggests that People v. Hayes, supra, 52 Cal.3d at p. 643 and other cases — in which this Court did not consider the applicability of section 520 — were erroneously decided. The word “normative” applies to courts as well as jurors, and there is a long judicial history ofrequiring that decisions affecting life or liberty be based on reliable evidence that the decision-makerfinds more likely than notto be true. Forall ofthese reasons, Matthew’s jury should have been instructed that the State had the burden of persuasion regarding the existence of any factor in aggravation, and the appropriateness of the death penalty. Sentencing Matthew to death without adhering to the procedural protection afforded by state law violated federal due process. (Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) Thefailure to articulate a proper burden ofproofis constitutional error under the Sixth, Eighth, and Fourteenth Amendments andis reversible per se. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 281-282.) That should be the result here, too. 373 4. Some burdenof proofis required in order to establish a tie-breaking rule and ensure even-handedness This Court has held that a burden ofpersuasion is inappropriate given the normative nature ofthe determinations to be madein the penalty phase. (People v. Hayes, supra, 52 Cal.3d at p. 643.) However, even with a normative determination to make,it is inevitable that one or more jurors on a given jury will find themselves torn between sparing and taking the defendant’s life, or between finding and notfinding a particular aggravator. A tie-breakingrule is needed to ensure that such jurors — and the juries on which they sit — respond in the same way, so the death penalty is applied evenhandedly. “Capital punishment [must] be imposedfairly, and with reasonable consistency, or not at all.” (Eddings v. Oklahoma, supra, 455 U.S. at p. 112.) It is unacceptable — “wanton” and “freakish” (Proffitt v. Florida (1976) 428 U.S. 242, 260) — the “height of arbitrariness” (Mills v. Maryland, supra, 486 U.S.at p. 374) — that one defendant should live and another die simply because onejuror orjury can break a tie in favor ofa defendant and another can do so in favor of the State on the samefacts, with no uniformly applicable standards to guide either. 5. Evenif there could constitutionally be no burden of proof, the trial court erredin failing to instruct the jury to that effect. If, in the alternative, it were permissible not to have any burden ofproofat all, the trial court erred prejudicially by failing to articulate that to the jury. The burden ofproofin any case is one ofthe most fundamental concepts in our system ofjustice, and anyerrorin articulating it is automatically reversible error. Sullivan v. Louisiana, supra, 508 U.S. 275.) The reason is obvious: Without an instruction on the burden ofproof, jurors may not use the correct standard, and 374 each may instead apply the standard heor she believes appropriate in any given case. The sameistrue if there is no burden ofproofbut the jury is not so told. Jurors who believe the burden should be on the defendant to prove mitigation in penalty phase would continueto believe that. Such jurors do exist. This raises the constitutionally unacceptable possibility a juror would vote for the death penalty because of a misallocation ofwhat is supposedto be a nonexistent burden of proof. That renders the failure to give any instruction at all on the subject a violation ofthe Sixth, Eighth, and Fourteenth Amendments, because the instructions given fail to provide the jury with the guidance legally required for administration ofthe death penalty to meet constitutional minimum standards. The error in failing to instruct the jury on what the proper burden ofproofis, or is not, is reversible per se. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 281-282.) 6. California law violates the Sixth,Eighth and Fourteenth Amendments to the United States Constitution by failing to require that the jury base any death sentence on written findings regarding aggravating factors. The Eighth and Fourteenth Amendments guarantee in a capital case the right to meaningful appellate review ofa death sentence. (California v. Brown, supra, 479 U.Sat p. 543; Gregg v. Georgia, supra, 428 U.S. at p. 195.) Underthe California capital system, once a defendant is determined to be death-eligible, the jury hasvirtually total discretion to weigh aggravating and mitigating circumstances. (Tuilaepa v. California, supra, 512 U.S. at pp. 979-980.) There can be, therefore, no meaningful appellate review unless they make written findings regarding those factors, becauseit is impossible to "reconstruct the findingsofthe state trier of fact." (See Townsendv. Sain (1963) 372 U.S. 293, 313-316.) Here, Matthew has raised evidentiary and instructional errors that had the 375 potential or likelihood to mislead the jurors as to the proper scope oftheir penalty considerations. However, the instructions provided did not require the jury to make written or other specific findings about the aggravating factors they found and considered in imposing a death sentence. The failure to require such express findings deprived Matthew ofhis Fourteenth Amendment due process and Eighth Amendmentrights to meaningful appellate review as well as his Fourteenth Amendmentright to equal protection of the law. (California v. Brown, supra, 479 USS.at p. 543; Gregg v. Georgia, supra, 428 U.S. at p. 195.) Without written findings, he cannot obtain a constitutionally adequate appellate review in thiscase. To be sure, the Court has held that the 1978 death penalty schemeis not unconstitutional in failing to require express jury findings. (People v. Fauber (1992) 2 Cal.4th 792, 859.) However, it has treated such findings as so fundamental to due processas to be required at parole suitability hearings. A convicted prisoner whoalleges that he was improperly denied parole must proceed by a petition for writ ofhabeas corpus and mustallege the State's wrongful conduct with particularity. (In re Sturm (1974) 11 Cal.3d 258.) Accordingly, the parole board is required to state its reasons for denying parole, because"[i]t is unlikely that an inmate seeking to establish that his application for parole was arbitrarily denied can make necessary allegations with the requisite specificity unless he has some knowledge ofthe reasonstherefor." (Id. at p. 267.) The same reasoning must applyto the far graver decision to put someoneto death. (See also, e.g., People v. Martin (1986) 42 Cal.3d 437, 449-450 [statement ofreasons essential to meaningful appellate review].) Further, in noncapital cases the sentencer is required by California law to state on the record the reasons for the sentence choice. (Pen Code § 1170, subd. (c).) Underthe Fifth, Sixth, Eighth, and Fourteenth Amendments,capital defendants are entitled to more rigorous protections than noncapital defendants. (See, e.g., Harmelin v. Michigan, supra, supra, 501 US. at p. 994.) Since providing moreprotection to noncapital than to capital defendants violates the 376 Equal Protection Clause ofthe Fourteenth Amendment (see Myers v. Ylst, supra, 897 F.2d at p. 421; Ringv. Arizona, supra, 536 U.S. 584), the sentencer in a capital case is constitutionally required to identify for the record in some fashion the aggravating circumstances found. Written findings are essential for a meaningful review ofthe sentence imposed. Thus, in Mills v. Maryland, supra, 486 U.S. 367, the requirement of written findings applied in Maryland death cases enabled the Supreme Court to identify the error committed underthe prior state procedure and to gauge the beneficial effect ofthe newly-implemented state procedure. (Id. at p. 383, n. 15. ) The mere fact that a capital-sentencing decision is "normative" (People v. Hayes, supra, 52 Cal.3d at p. 643), and "moral" (People v. Hawthorne, 4 Cal.4th at p. 79), does not mean its basis cannotbe articulated in written findings. Indeed, the importance ofwritten findings in capital sentencing is recognized throughout this country. Ofthe 34 post-Furman state capital sentencing systems, 25 require some form ofwritten findings specifying the aggravating factors the jury relied on in reaching a death judgment. Nineteen of those states require written findings regarding all penalty aggravating factors found true, while the remaining seven require a written finding as to at least one aggravating factor relied on to impose death.” California's failure to require such 6 See Ala. Code, §§ 13A-5-46(f) and 47(d) (1982); Ariz. Rev. Stat.Ann., § 13-703.01(E) (2002); Ark. Code Ann., § 5-4-603(a) (Michie 1987);Colo. Rev. Stat., § 18-1.3-1201(2)(b)dDand § 18-1.3-1201(2)(c) (2002);Conn. Gen.Stat. Ann., § 53a-46a(e) (West 1985); State v. White (Del.1978) 395 A.2d 1082, 1090; Fla. Stat. Ann., § 921.141(3) (West 1985); Ga.Code Ann., § 17-10-30(c) (Harrison 1990); Idaho Code, § 19-2515(8)(a)-(b)(2003); Ky. Rev. Stat. Ann., § 532.025(3) (Michie 1988); La. Code Crim.Proc. Ann., art. 905.7 (West 1993); Md. Ann. Code art 27 § 413(i) (1992);Miss Code Ann., § 99-19-103 (1993); Mont. Code Ann., § 46-18-305(1993); Neb. Rev. Stat. § 29-2521(2) and § 29-2522 (2002); Nev. Rev. Stat.Ann., § 175.554(3) (Michie 1992); N.H. Rev. Stat. Ann., § 630:5 ([V)(1992); N.M.Stat. Ann., § 31-20A-3 (Michie 1990); Okla. Stat. Ann., tit.21, § 701.11 (West 1993); 41 Pa. Cons. Stat. Ann., § 9711 (1982); S.C.Code Ann. § 16-3-20(C) (Law. Co-op. 1992); S.D. Codified Laws Ann., §23A-27A-5 (1988); Tenn. Code 377 findings renders its death penalty procedures unconstitutional. Moreover, written findings are essential to ensure that a defendant subjected to a capital penalty trial under Penal Code section 190.3 is afforded the protections guaranteed by the Sixth Amendmentrightto trial by jury. As Ring v. Arizona has madeclear, the Sixth Amendment guarantees a defendantthe right to have a unanimous jury makeany factual findings prerequisite to imposition of a death sentence - including, under Penal Code section 190.3, the finding of an aggravating circumstance (or circumstances) and the finding that these aggravators outweigh any andall mitigating circumstances. Absent a requirement of written findings as to the aggravating circumstancesrelied upon, the California sentencing schemeprovides no way ofknowing whether the jury has made the unanimous findings required under Ring and provides no instruction or other mechanism to even encourage the jury to engage in such a collective factfinding process. The failure to require written findings thus violated not only federal due process and the Eighth Amendmentbutalso the right to trial by jury guaranteed by the Sixth Amendment. 7. California’s Death Penalty statute, as interpreted by this Court, forbids inter-case proportionality review, thereby guaranteeing arbitrary, discriminatory, or disproportionate impositions of the death penalty Asdiscussed in Argument XIII, above, California does not provide for intercase proportionality review in capital cases. This failure violates Matthew's Eighth and Fourteenth Amendmentrights to be protected from the arbitrary and capricious imposition of capital punishment. | Asdiscussed in Argument XIII, the Eighth Amendmentto the United States Constitution forbids punishments that are cruel and unusual. The jurisprudence Ann., § 39-13-204(g) (1993); Tex. Crim.Proc. Code Ann., § 37.07(c) (West 1993); Va. Code Ann., § 19.2-264(D)(Michie 1990); Wyo. Stat. § 6-2-102(e) (1988). 378 that has emerged applying this ban to the imposition of the death penalty has required that death judgments be proportionate and reliable. The notions of reliability and proportionality are closely related. Part ofthe requirement of reliability is "that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case." (Barclay v. Florida (1976) 463 U.S. 939, 954, plur. opn. [parenthetical in original, quoting Proffitt v. Florida, supa, 428 U.S.at p. 251, opn. of Stewart, Powell, and Stevens, JJ.].) The United States Supreme Court has lauded comparative proportionality review as a method for helping to ensure reliability and proportionality in capital sentencing. Specifically, it has pointed to the proportionality reviews undertaken by the Georgia and Florida Supreme Courts as methods for ensuring that the death penalty will not be imposed on a capriciously selected group of convicted defendants. (See Gregg v. Georgia, supra, 428 U.S.at p. 198; Proffitt v. Florida, supra, 428 U.S. at p. 258.) Thus, intercase proportionality review can be an important tool to ensure the constitutionality of a state's death penalty scheme. Despite recognizing the value of intercase proportionality review, the United States Supreme Court has held that this type ofreview is not necessarily a requirement for finding a state's death penalty structure to be constitutional. In Pulley v. Harris, supra, 465 U.S. 37, the United States Supreme Court ruled that the 1977 California capital sentencing scheme was not "so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review." (Id. at p. 51.) Accordingly, this Court has consistently held that intercase proportionality review is not constitutionally required. (See People v. Farnam (2002) 28 Cal.4th 107, 193.) As Justice Blackmun has observed, however, the holding in Pulley v. Harris was premised upon untested assumptions about the California death penalty scheme: 379 [I]n Pulley v. Harris, 465 U.S. 37, 51 [], the Court's conclusion that the California capital sentencing scheme wasnot "so lacking in other checkson arbitrariness that it would not pass constitutional muster without comparative proportionality review" was based in part on an understanding that the application ofthe relevant factors "provide[s] jury guidance and lessen[s] the chance of arbitrary application ofthe death penalty," thereby "guarantee[ing] that the jury's discretion will be guided and its consideration deliberate." Id. at 53, [], quoting Harris v. Pulley, 692 F.2d 1189, 1194, 1195 (9th Cir. 1982). As litigation exposes the failure ofthese factors to guide the jury in making principled distinctions, the Court will be well advised to reevaluate its decision in Pulley v. Harris. (Tuilaepa v. California, supra, 512 U.S.at p. 995, dis. opn. ofBlackmun,J.) The time has comefor Pulley v. Harris to be reevaluated, since, as this case illustrates, the 1978 California statutory schemefails to limit capital punishment to the "most atrocious" murders. (Furman v. Georgia, supra, 408 U.S.at p. 313, conc. opn. of White, J.). Comparative case review is the mostrational - ifnot the only - effective means by which to ascertain whether a scheme as a wholeis producingarbitrary results. Thus, the vast majority ofthe states that sanction capital punishment require comparative or intercase proportionality review.” 6 See Ala. Code § 13A-5-53(b)(3) (1982); Conn. Gen.Stat. Ann. §53a- 46b(b)(3) (West 1993); Del. Code Ann.tit. 11, § 4209(g)(2) (1992);Ga. Code Ann. § 17-10-35(c)(3) (Harrison 1990); Idaho Code § 19-2827(c)(3) (1987); Ky. Rev. Stat. Ann. § 532.075(3) (Michie 1985); La.Code Crim. Proc. Ann.art. 905.9.1(1)(c) (West 1984); Miss. Code Ann. §99-19-105(3)(c) (1993); Mont. Code Ann. § 46-18-310(3) (1993); Neb.Rev. Stat. §§ 29-2521.01, 29-2522(3) (1989); Nev.Rev.Stat. Ann §177.055 (d) (Michie 1992); N.H. Rev.Stat. Ann. § 630:S5(X1)(c) (1992);N.M. Stat. Ann. § 31-20A-4(c)(4) (Michie 1990); N.C. Gen. Stat. § 15A-2000(d)(2) (1983); Ohio Rev. Code Ann. § 2929.05(A) (Baldwin 1992); 42Pa. Cons.Stat. Ann. § 9711(h)(3)(iii) (1993); S.C. Code Ann. § 16-3- 25(c)(3) (Law. Co-op. 1985); 8.D. Codified Laws Ann. § 23A-27A-12(3)(1988); Tenn. Code Ann. § 13-206(c)(1)(D) (1993); Va. Code Ann. §17.110.1C(2) (Michie 1988); Wash. Rev. Code Ann.§ 10.95.130(2)(b)(West 1990); Wyo.Stat. § 6-2-103(d)(iii) (1988). | Manystates have judicially instituted similar review. (See State v. Dixon (Fla. 1973) 283 So.2d 1, 10; Alford v. State (Fla. 1975) 307 So.2d 433, 444; 380 The capital sentencing schemein effect at the time ofMatthew'strial was the type of schemethat the Pulley Court had in mind whenit said that "there could be a capital sentencing system so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review." (Pulley v. Harris, supra, 465 U.S.at p. 51.) Indeed, even in civil cases, uniformity and reliability of monetary awards by juries are subject to modification by the judgein light ofexperience with compensatory awards in general. (Consorti v. Armstrong World Industries, Inc. (2™ Cir. 1995) 72 F.3d 1003, 1009, vacated on other groundsin (1996) 518 U.S. 1031.) The same considerations ofuniformity and fairness should apply even morestrongly in his context where much more than monetary compensationis at stake, and where the Sixth, Eighth and Fourteenth Amendments bar any arbitrariness or unreliability in the determination. (But see People v. Clark (1993) 5 Cal.4th 950, 1039.) If such a review were undertaken here,it is likely that a disparity would be found. Even a cursory review reveals numerous instances wherein the prosecution did not seek the death penalty, even in cases in which the defendant, like Matthew wastried and convicted ofthree first-degree premeditated murder charges. (See, e.g., People v. Bobo (1990) 229 Cal.App.3d 1417 [defendanttried and convicted ofthree first-degree premeditated murder charges with true finding on multiple. murderspecial circumstance, but Sacramento County District Attorney did not seek death penalty]; People v. Son (2000) 79 Cal.App.4® 224 [defendant tried and convicted ofmultiple murder with special circumstance, but District Attorney for Los Angeles County did not seek death penalty]; People v. Hitchings (1997) 59 Cal.App.4™ 915 [same — Humboldt County]; People v. Woods (1993) 12 People v. Brownell(Ill. 1980) 404 N.E.2d 181, 197; Brewerv. State (Ind. 1980) 417 NE.2d 889, 899; State v. Pierre (Ut 1977) 572 P.2d 1338, 1345; State v. Simants (Neb. 1977) 250 N.W.2d 881, 890; Collins v. State (Ark. 1977) 548 S.W.2d 106, 121.) . 381 Cal.App.4™ 1139 [same — Solano County]; People v. Rupe (1988) 206 Cal.App.3d 1537 [same — Shasta County]; People v. Orienthal J. Simpson, Los Angeles County Super. Ct. No. BA09721 1.)© The failure ofthe California law to require such a review vitiates the death judgmentin thiscase. 8. The use of restrictive adjectives in the list of potential mitigating factors impermissibly acted as barriers to consideration of mitigation by Matthew’s jury Penal Code section 190.3, factor (d) permits the jury to consider “whether or not the offense was committed while the defendant was underthe influence of extreme mental or emotional disturbance;” factor (f) permits the jury to consider “whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moraljustification or extenuation for his conduct” and factor (g) permits the jury the consider “whether or not the defendant acted under extreme duress or underthe substantial domination of another person.” (Emphasis supplied.) Adjectives such as “extreme” and “reasonably believed”in the list of mitigating factors inform the jury that lesser degrees ofduress and mental disturbance, and an unreasonable beliefofmoral justification cannot be mitigating, and thusact as barriers to the consideration ofmitigation in violation ofthe Fifth, Sixth, Eighth, and Fourteenth Amendments. (Tennard v. Dretke, supra, 542 U.S. ____ 124 S.Ct. at p. 2570; Mills v. Maryland, supra, 486 U.S.at p. 367; Lockett v. Ohio, supra, 438 U.S.at p. 586.) These instructions are plainly inconsistent with the federal constitutional requirementthat the jury must consider mitigating evidence concerning the offender or the offense (Lockett v. Ohio, supra, 438 U.S. 6° While there are numerous additional cases in which the prosecution agreed not to seek the death penalty in exchange for some other benefit, such as the 382 586), and the state law requirement, guaranteed by the federal due process clause (Hicks v. Oklahoma, supra, 447 U.S.at p. 346), that the jury determine whether death is the appropriate penalty (People v. Brown, supra, 40 Cal.3d at p. 512). Such wording also renders these factors unconstitutionally vague, arbitrary, capricious, and/or incapable ofprincipled application. (Maynard v. Cartwright, supra, 486 U.S. at pp. 361-364; Godfrey v. Georgia, supra, 446 U.S.at pp. 420, 433.) The jury's consideration ofthese vague factors, in turn, introduces impermissible unreliability into the sentencing process,in violation of the Eighth and Fourteenth Amendments. Cases holding that the word “extreme” need not be deleted(see,e.g., Blystone v. Pennsylvania, supra, 494 U.S.at p. 308; Hendricks v. Vasquez (9th Cir. 1993) 974 F.2d 1099, 1109; People v. Benson, supra, 52 Cal. 3d at pp. 803- 804), are based on the assumptionthat a jury will understand that, despite the reference to “extreme”in factor (f), duress to a lesser degree may be considered under factor (k). Empirical research demonstrates that this assumption is wrong. A survey conducted by Professor Hans Zeisel tested the understanding ofthe Illinois standard penalty phase jury instructions among a pool ofprospective jurors. Seven of eighteen questions concerned mitigating factors other than those listed in the instructions. Between 38.9 and 67.7 percent ofthe respondents answered these instructions incorrectly, concluding that a juror could not rely on unlisted mitigating factors to vote for a sentence less than death. On most ofthese questions, more than halfofthe respondents answeredincorrectly. (See United States ex rel. Free v. Peters (1994) 806 F. Supp. 705, 723 (N.D.Ill. 1992), reversed, (7th Cir. 1993) 12 F. 3d 700.) Theinclusion ofthis language thus prevented the jury from considering mitigation in violation ofthe Fifth, Sixth, Eighth and Fourteenth Amendments. (Tennard v. Dretke, supra, 542 U.S. defendant waivingjury trial, none ofthe above-entitled cases involved any such deals. 383 124 S.Ct. at p. 2570; Mills v. Maryland, supra, 486 U.S.at p. 367; Lockett v. Ohio, supra, 438 U.S. at pp. 604-606.) D. Failure To Require Instruction On Presumption OfLife. In accordance with customary state law practice, the trial court did not instruct the jury that the law presumesthatlife without parole is the appropriate penalty. In noncapital cases, where only guilt is at issue, the presumption of innocence is a basic componentofa fair trial, a core constitutional and adjudicative value that is essential to protect the accused. (See Estelle v. Williams (1976) 425 U.S. 501, 503.) In the penalty phase of a capital case, the presumption oflife is the correlate ofthe presumption of innocence. Paradoxically, however, although the stakes are much higher at the penalty phase, California law does not require that the jury be instructed as to the presumptionoflife. (See, e.g., People v. Arias (1996) 13 Cal.4™ 92, 190; see also Note, The Presumption of Life: A Starting Point for Due Process Analysis of Capital Sentencing (1984) 94 Yale L.J. 351; ef. Delo v. Lashley (1983) 507 U.S. 272.) Matthew submits that the omission ofan instruction that the law favors life and presumeslife imprisonment without parole to be the appropriate sentence violated his right to due process of law (U.S. Const., Amend. XTV; Cal. Const. art. I, §§ 7, 15), his right to be free from cruel and unusual punishmentand to have his sentence determined in a reliable manner (U.S. Const., Amends. VIII, XIV; Cal. Const. art. I, § 17), and his right to the equal protection ofthe laws (U.S. Const., Amend. XIV; Cal. Const., art. I, § 7). In People v. Arias, supra, 13 Cal.4th 92, this Court held that an instruction on the presumptionoflife is not necessary in California capital cases, in part because the United States Supreme Court has held that "the state may otherwise structure the penalty determination as it sees fit," so long as state law otherwise properly limits death eligibility. (Id. at p. 190.) However, as the other subsections 384 ofthis argument, this state's death penalty law is remarkably deficient in the protections needed to ensure the consistent and reliable imposition of capital punishment. Therefore, a presumption oflife instruction is constitutionally required. E. The California Sentencing Scheme Violates the Equal Protection Clause of the Federal Constitution by Denying Procedural Safeguards to Capital Defendants Which Are Afforded to Non- capital Defendants Asdiscussed in the preceding arguments, the United States Supreme Court has repeatedly directed that a greater degree ofreliability is required when death is to be imposed and that courts must be vigilant to ensure procedural fairness and accuracyin fact-finding. (See, e.g., Monge v. California, supra, 524 U.S.at pp. 731-732.) Despite this directive California’s death penalty scheme provides significantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes. This differential treatment violates the constitutional guarantee of equal protection ofthe laws. Equalprotection analysis begins with identifying the interest at stake. In 1975, Chief Justice Wright wrote for a unanimous Court, “personal liberty is a fundamental interest, second onlyto life itself, as an interest protected under both the California and the United States Constitutions.” (People v. Olivas (1976) 17 Cal.3d 236, 251.) “Aside from its prominent place in the due process clause, the right to life is the basis of all other rights. . . . It encompasses, in a sense, ‘the right to haverights,’ Trop v. Dulles, 356 U.S. 86, 102 (1958).” (Commonwealth v. O’Neal (Mass. 1975) 327 N.E.2d 662, 668.) If the interest identified is “fundamental,” then courts have “adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny.” (Westbrook v. Milahy (1970) 2 Cal.3d 765, 784-785.) A state may not create a classification scheme which affects a fundamental interest without 385 showingthat it has a compelling interest which justifies the classification andthat the distinctions drawn are necessary to further that purpose. (People v. Olivas, supra, 17 Cal.3d 236; Skinner v. Oklahoma (1942) 316 U.S. 535, 541.) The State cannot meet this burden. In this case, the equal protection guarantees ofthe state and federal Constitutions must apply with greater force, the scrutiny ofthe challenged classification be morestrict, and any purported justification by the State of the discrepant treatment be even more compelling becausetheinterest at stake is not simply liberty, but life itself. To the extent that there may be differences between capital defendants and non-capital felony defendants, those differences justify more, not fewer, procedural protections designed to make a death sentence more reliable. In People v.Prieto, supra, 30 Cal.4th 226, as in People v. Snow,supra, 30 Cal.4th 43, this Court analogized the process of determining whether to impose death to a sentencing court’s traditionally discretionary decision to impose one prison sentence rather than another. Ifthat were so, then California is in the unique position of giving persons sentenced to death significantly fewer procedural protections than a person being sentencedto prison for receiving stolen property. An enhancingallegation in a California non-capital case is a finding that must, by law, be unanimous. (See, e.g., Pen. Code §§ 1158, 1158a.) When a Californiajudge is considering which sentence is appropriate, the decision is governed bycourt rules. California Rules of Court, rule 4.42, subd. (e) provides: “The reasons for selecting the upper or lowerterm shall be stated orally on the record, and shall include a concise statement ofthe ultimate facts which the court deemedto constitute circumstances in aggravation or mitigation justifying the term selected.” Subdivision (b) ofthe same rule provides: “Circumstances in aggravation and mitigation shall be established by a preponderance ofthe evidence.” However, as discussed above, in a capital sentencing context, there is no burden ofproofat all, and the jurors need not agree on what aggravating 386 circumstances apply. Different jurors can, and do, apply different burdens of proofto the contentions of each party and may well disagree on whichfacts are true and which are important. As further discussed above, unlike moststates where death is a sentencing option andall persons being sentenced to non-capital crimes in California, no reasons for a death sentence need be provided. These discrepancies on basic procedural protections are skewedagainst persons subject to the loss of their life; they violate equal protection ofthe laws. This Court has most explicitly responded to equal protection challenges to the death penalty schemein its rejection of claimsthatthe failure to afford capital — defendants the disparate sentencing review provided to non-capital defendants violated constitutional guarantees of equal protection. (See People v. Allen (1986) 42 Cal.3d 1222, 1286-1288.) There is no hint in Allen that the two proceduresare in any way analogous.In fact, the decision centered on the fundamental differences between the two sentencing procedures. However, because the Court was seekingto justify the extension ofprocedural protections to persons convicted ofnon-capital crimesthat are not granted to persons facing a possible death sentence, the Court’s reasoning was necessarily flawed. In Allen, this Court rejected a contention that the failure to provide disparate sentence review for persons sentenced to death violated the constitutional guarantee ofequal protection of the laws. The Court offered three justifications for its holding. First, the Court distinguished death judgments by pointing out that the primary sentencing authority in a California capital case, unless waived,is a jury: “This lay body represents and applies community standardsin the capital- sentencing process underprinciples not extendedto noncapital sentencing.” (People v. Allen, supra, 42 Cal. 3d at p. 1286.) But jurors are not the only bearers ofcommunity standards. Legislatures also reflect community norms, and court of statewide jurisdiction is best situated to assess the objective indicia of community values whichare reflected in a pattern 387 ofverdicts. (McCleskey v. Kemp, supra, 481 U.S. at p. 305.) Principles of uniformity and proportionality live in the area of death sentencing by prohibiting death penalties that flout a societal consensusas to particular offenses. (Coker v. Georgia (1977) 433 U.S. 584) or offenders (Enmundv.Florida, supra, 458 U.S.at p. 782; Ford v. Wainwright, supra, 477 U.S. 399; Atkins v. Virginia, supra, 536 U.S. 304.) Juries, like trial courts and counsel, are not immunefrom error. The entire purpose of disparate sentence review is to enforce these values ofuniformity and proportionality by weeding out aberrant sentencing choices, regardless ofwho made them. While the State cannotlimit a sentencer’s consideration of any factor that could causeit to reject the death penalty, it can and must provide rational criteria that narrow the decision-maker’s discretion to impose death. (McCleskey v. Kemp,supra, 481 U.S. at pp. 305-306.) Nojury can violate the societal consensus embodied in the channeled statutory criteria that narrow death eligibility or the flat judicial prohibitions against imposition ofthe death penalty on certain offenders or for certain crimes. Jurors are also not the only sentencers. A verdict of death is always subject to independent review bya trial court empoweredto reduce the sentence tolife in prison, and the reduction of a jury's verdict by a trial judge is not only allowed but required in particular circumstances. (See Pen. Code, § 190.4; People v. Rodriguez (1986) 42 Cal.3d 730, 792-794.) The absenceofa disparate sentence review cannotbe justified on the ground that a reduction ofa jury’s verdict by a trial court would interfere with the jury’s sentencing function. The second reason offered by Allen for rejecting the equal protection claim was that the range available to a trial court is broader under the determinate sentencing law than for persons convicted offirst degree murder with one or more special circumstances: “The range ofpossible punishments narrowsto death orlife without parole.” (People v. Allen, supra, 42 Cal. 3d at p. 1287.) In truth, the difference between life and death is a chasm so deep that we cannot see the 388 bottom. The idea that the disparity between life and death is a “narrow” one violates commonsense,biologicalinstinct, and decades ofpronouncements by the United States Supreme Court: “In capital proceedings generally, this court has demandedthatfact-finding procedures aspire to a heightened standard of reliability (citation omitted). This especial concern is a natural consequenceofthe knowledge that execution is the most irremediable and unfathomable ofpenalties; that death is different.” (Ford v. Wainwright, supra, 477 U.S. at p. 411.) “Death, in its finality, differs more from life imprisonmentthan a 100-year prison term differs from oneofonly a year or two.” (Woodson v. North Carolina, supra, 428 US.at p. 305, opn. of Stewart, Powell, and Stephens, J.J.; see also Reid v. Covert (1957) 354 U.S. 1, 77, conc. opn. ofHarlan, J; Kinsella v. United States (1960) 361 U.S. 234, 255-256, conc. & dis. opn. of Harlan, J., joined by Frankfurter, J.; Gregg v. Georgia, supra, 428 U.S.at p. 187, opn. of Stewart, Powell, and Stevens, J.J.; Gardnerv. Florida, supra, 430 U.S.at pp. 357-358; Lockett v. Ohio, supra, 438 U.S. at p. 605, plur. opn.; Beck v. Alabama, supra, 447 U.S.at p. 637; Zant v. Stephens, supra, 462 U.S. at pp. 884-885; Turner v. Murray (1986) 476 U.S. 28, plur. opn., quoting California v. Ramos (1983) 463 U.S. 992, 998-999; Harmelin v. Michigan, supra, 501 U.S.at p. 994; Monge v.California, supra, 524 U.S. atp. 732.) The qualitative difference between a prison sentence and a death sentence thus militates for, rather than against, requiring the State to apply its disparate review proceduresto capital sentencing. Finally, this Court in Allen relied on the additional “nonquantifiable” aspects of capital sentencing as compared to non-capital sentencing as supporting the different treatment of felons sentenced to death. (People v. Allen, supra, 42 Cal.3d at p. 1287.) The distinction drawn by the Allen majority between capital and non-capital sentencing regarding “nonquantifiable” aspects is one with very little difference. A trial judge may base a sentence choice under the determine sentencing law on factors that include precisely those that are considered as aggravating and mitigating circumstancesin a capital case. (Compare Pen. Code § 389 190.3, subds.(a) through (j) with Calif. Rules of Court, rules 4.421 and 4.423.) One may reasonably presumethat it is because “nonquantifiable factors” permeate all sentencing choicesthat the legislature created the disparate review mechanism discussed above. In sum, the Equal Protection Clause ofthe Fourteenth Amendmentto the United States Constitution guarantees all persons that they will not be denied their fundamental rights and bansarbitrary and disparate treatment of citizens when fundamentalinterests are at stake. (Bush v. Gore (2000) 531 U.S. 98, 105-106.) In addition to protecting the exercise of federal constitutional rights, the Equal Protection Clause also prevents violations of rights guaranteed to the people by state governments. (Charfauros v. Board ofElections (9th Cir. 2001) 249 F.3d 941, 951.) Thefact that a death sentence reflects community standards has been cited by this Court as justification for the arbitrary anddisparate treatment ofconvicted felons whoare facing a penalty of death. This fact cannot justify the withholding ofa disparate sentence review provided all other convicted felons, because such reviewsare routinely provided in virtually every state that has enacted death penalty laws and by the federal courts when they consider whether evolving community standards no longer permit the imposition of death in a particular case. (See, e.g., Atkins v. Virginia, supra, 536 U.S. 304.) Norcan this fact justify the refusal to require written findings by the jury — the sentencer in death penalty cases (People v. Allen, supra, 42 Cal.3d at p.186) — or the acceptance of a verdict that may not be based on a unanimous agreement that particular aggravating factors that support a death sentenceare true. (Ring v. Arizona, supra, 536 U.S. at p. 584.) California does impose on the prosecution the burden to persuade the sentencer that the defendant should receive the most severe sentence possible, and that the sentencer mustarticulate the reasonsfor a particular sentencing choice. It does so, however, only in non-capital cases. To provide greater protection to non-capital defendants than to capital defendants 390 violates the due process, equal protection, and cruel and unusual punishment clauses ofthe Eighth and Fourteenth Amendments. (See, e.g., Mills v. Maryland, supra, 486 U.S.at p. 374; Myers v. Ylst, supra, 897 F.2dat p. 421; Ringv. Arizona, supra, 536 U.S.at p. 584.) Procedural protections are especially important in meeting the acute need for reliability and accurate fact-finding in death sentencing proceedings. (Monge v. California, supra, 524 U.S. at p. 721.) To withhold them onthe basisthat a death sentenceis a reflection of community standards demeans the community as irrational and fragmented and doesnot withstand the close scrutiny that should be applied by this Court when a fundamentalinterest is affected. F. California’s Use of the Death Penalty as a Regular Form of Punishment Falls Short of International Norms of Humanity and Decency andViolates the Eighth and Fourteenth Amendments; Imposition of the Death Penalty Violates the Eighth and Fourteenth Amendments to the United States Constitution. The United States is one ofthe few nations that regularly uses the death penalty as a form ofpunishment. (See Ring v. Arizona, supra, 536 U.S.at p. 618, conc. opn, ofBreyer, J.; People v. Bull (Ill. 1998) 705 N.E.2d 824, dis. opn. of (Harrison, J.) And, as the Supreme Court ofCanadarecently explained: Amnesty International reports that in 1948, the year in which the Universal Declaration ofHuman Rights was adopted, only eight countries were abolitionist. In January 1998, the Secretary-General ofthe United Nations, in a report submitted to the Commission on Human Rights (U.N. Doc. E/CN.4/1998/82), noted that 90 countries retained the death penalty, while 61 were totally abolitionist, 14 (including Canadaat the time) were classified as abolitionist for ordinary crimes and 27 were considered to be abolitionist defacto (no executions for the past 10 years) for a total of 102 abolitionist countries. At the presenttime,it appears that the death penalty is now abolished (apart from exceptional offences such as treason) in 108 countries. These general statistics mask the importantpointthat 391 abolitionist states include all ofthe major democracies except some ofthe United States, India and Japan . . . . Accordingto statistics filed by Amnesty International on this appeal, 85 percent ofthe world’s executions in 1999 were accounted for by only five countries: the United States, China, the Congo, Saudi Arabia and Iran. (Minister of Justice v. Burns (2001) 1 S.C.R. 283 [2001 SCC 7], 4 91). The California death penalty schemeviolates the provisions of international treaties and the fundamental precepts of international human rights. Because internationaltreaties ratified by the United States are binding on state courts, the imposition ofthe death penalty is unlawful. To the extentthat international legal norms are incorporated into the Eighth Amendment determination of evolving standards ofdecency, Matthew raises this claim under the Eighth Amendmentas well. (See Atkins v. Virginia, supra, 536 U.S.at p. 316, n. 21; Stanford v. Kentucky, supra, 492 U.S.at pp. 389-390, dis. opn. ofBrennan,J.) 1. International Law. Article VII ofthe International Covenant of Civil and Political Rights (“ICCPR”) prohibits “cruel, inhuman or degrading treatment or punishment.” Article VI, section 1 ofthe ICCPR prohibits the arbitrary deprivation oflife, providing that “[e]very human being has the inherent right to life. This right shall be protected by law. No oneshall be arbitrarily deprived oflife.” The ICCPR was ratified by the United States in 1992, and applies to the states under the Supremacy Clauseofthe federal Constitution. (U.S. Const., Art. VI, § 1, cl. 2.) Consequently, this Court is bound by the ICCPR.© The United States Court of 66 The Senate attempted to place reservations on the language ofthe ICCPR, including a declaration that the covenant wasnotself-executing. (See 138 Cong. Rec. $4784, § III(1). ) These qualifications do not preclude appellant’s reliance on the treaty because,interalia, ( 1) the treaty is self-executing under the factors set forth in Frolovav. U.S.S.R. (7" Cir. 1985) 761 F.2d 370, 373; (2) the declaration impermissibly conflicts with the object and purposeofthetreaty, 392 Appeals for the Eleventh Circuit has held that when the United States Senate ratified the ICCPR “the treaty became, coexistent with the United States Constitution and federal statutes, the supreme law ofthe land” and mustbe applied as written. (United States v. Duarte-Acero (11" Cir. 2000) 208 F.3d 1282, 1284; but see Beazley v. Johnson (5" Cir. 2001) 242 F.3d 248, 267-268.) Matthew’s death sentence violates the ICCPR. Because ofthe improprieties ofthe capital sentencing process challenged in this appeal, the imposition ofthe death penalty on Matthew constitutes “cruel, inhuman or degrading treatment or punishment”in violation of Article VII ofthe ICCPR. He recognizes that this Court previously has rejected international law claims directed at the death penalty in California. (People v. Ghent, supra, 43 Cal.3d at pp. 778- 779; People v. Hillhouse, supra, 27 Cal.4th at p. 511.) Still, there is a growing recognition that international human rights normsin general, and the ICCPR in particular, should be applied to the United States. (See United States v. Duarte- Acero, supra, 208 F.3d at p. 1284; McKenzie v. Day (9" Cir. 1995) 57 F.3d 1461, 1487, dis. opn. ofNorris, J.) Thus, Matthew requests that the Court reconsider and, in the context ofthis case, find his death sentence violates international law. 2. The Eighth Amendment. Asnoted above,the abolition ofthe death penalty, or its limitation to exceptional crimes suchas treason — as opposed to its use as a regular punishment for ordinary crimes — is particularly uniform in the nations of Western Europe. (See, e.g., Stanford v. Kentucky, supra, 492 U.S.at p. 389, dis. opn. ofBrennan, whichis to protect the individual’s rights enumerated therein (see Riesenfeld & Abbot, The Scope ofthe U.S. Senate Control Over the Conclusion and Operation ofTreaties (1991) 68 Chi.-Kent L. Rev. 571, 608); and (3) the legislative history indicates that the Senate only intended to prohibit private and independent causes of action (see 138 Cong. Rec. $4784) and did not intend to prevent defensive use ofthe treaty. (See Quigley, Human Rights Defenses in U.S. Courts (1988) 20 Hum.Rts. Q. 555, 581-582). 393 J.; Thompson v. Oklahoma, supra, 487 U.S.at p. 830, plur. opn.) Indeed, all nations of Western Europe — plus Canada, Australia, and New Zealand — have abolished the death penalty. Amnesty International, “The Death Penalty: List of Abolitionist and Retentionist Countries” (as ofAugust 2002)at or .)” This consistent view is especially important in considering the constitutionality ofthe death penalty under the Eighth Amendment because our Founding Fathers looked to the nations of Western Europe for the “law ofnations” as models on which the lawsofcivilized nations were founded and for the meaning ofterms in the Constitution. “When the United States became an independentnation, they became, to use the language ofChancellor Kent, ‘subject to that system of rules which reason, morality, and custom had established among the civilized nations of Europeas their public law.’” (Miller v. United States (1870) 78 U.S. 268, 315, dis. opn. of Field, J., quoting | Kent’s Commentaries 1; Hilton v. Guyot (1895) 159 U.S. 113, 163, 227; Sabariego v. Maverick (1888) 124 U.S. 261, 291-292.) Thus, for example, Congress’s powerto prosecute war is, as a matter of constitutional law, limited by the law ofnations; what civilized Europe forbade, such as using poison weaponsorselling prisoners ofwar into slavery, wasconstitutionally forbidden here. (Miller v. United States, supra, 78 U.S. at pp. 315-316, n. 57, dis. opn. ofField, J.) “Cruel and unusual punishment”as defined in the Constitution is not limited to whateverviolated the standards ofdecency that existed within the civilized nations ofEurope in the 18th century. The Eighth Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles, supra, 356 U.S.at p. 100. Andifthe 67 Manyother countries including almostall Eastern European, Central American, and South American nations also have abolished the death penalty either completely or for ordinary crimes. (See Amnesty International’s “List of Abolitionist and Retentionist Countries.”) 394 standards of decency as perceived by the civilized nations ofEurope to which our Framers looked as models have evolved, the Eighth Amendmentrequires that we evolve with them. The Eighth Amendmentthusprohibits the use of forms of punishmentnot recognized by several of our states and thecivilized nations of Europe, or used by only a handful of countries throughout the world — including totalitarian regimes whose own “standards of decency” are supposed to be antithetical to our own. (See Atkinsv. Virginia, supra, 536 U.S.at p. 316, n. 21 [basing determination that executing mentally retarded persons violated Eighth Amendmentin part on disapproval in “the world community”]; Thompsonv. Oklahoma, supra, 487 U.S.at p. 830, n. 31 [““We have previously recognized the relevance ofthe viewsofthe international community in determining whethera punishmentis cruel and unusual”]). Assuming arguendothat capital punishment itself is not contrary to international norms ofhuman decency,its use as regular punishmentfor substantial numbers ofcrimes — as opposed to extraordinary punishmentfor extraordinary crimes — is contrary to those norms. Nationsin the Western world no longer accept the death penalty, and the Eighth Amendment does not permit jurisdictions in this nation to lag so far behind. (See Hilton v. Guyot, supra, 159 U.S. 113; see also Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. 110, 112 [municipaljurisdictions of every country are subject to law of nations principle that citizens ofwarring nations are enemies].) Thus, California’s use of death as a regular punishment,as in this case, violates the Eighth and Fourteenth Amendments, and Matthew’s death sentence should be setaside. XIX. THE METHOD OF EXECUTION EMPLOYEDIN CALIFORNIA VIOLATES THE FOURTEENTH AMENDMENT’S GUARANTEE OF PROCEDURAL DUE PROCESS AND THE EIGHTH AMENDMENT’S PROHIBITION UPON CRUEL AND UNUSUAL PUNISHMENTS. 395 A. Introduction. In 1992, California added as an alternative means of execution “intravenous injection of a substance or substances in a lethal quantity sufficient to cause death by standards established underthe direction ofthe Department of Corrections.” (Pen. Code § 3604, subdivision (a).) The 1992 legislation allowed the inmate to select either lethal gas or lethal injection, and provided that if the inmate made no selection, execution would be by lethal injection. Previously, the only method of execution waslethal gas.” 68 In its entirety, this section now providesas follows: (a) The punishment of death shall be inflicted by the administration of a lethal gas or by an intravenousinjection of a substance or substancesin a lethal quantity sufficient to cause death, by standards established underthe direction ofthe Department of Corrections. (b) Persons sentencedto death priorto or after the operative date ofthis subdivision shall have the opportunity to elect to have the punishment imposedby lethal gas or lethal injection. This choice shall be made in writing and shall be submitted to the warden pursuant to regulations established by the Department of Corrections. If a person under sentence of death does not choose either lethal gas or lethal injection within 10 days after the warden’s service upon the inmate of an execution warrant issued following the operative date ofthis subdivision, the penalty of death shall be imposedbylethal injection. (c) Where the person sentencedto death is not executed on the date set for execution and a new execution date is subsequently set, the inmate again shall have the opportunity to elect to have punishment imposedby lethal gas or lethal injection, according to the procedureset forth in subdivision(b). (d) Notwithstanding subdivision(b), if either manner of execution described in subdivision (a) is held invalid, the punishmentofdeath shall be imposedby the alternative means specified in subdivision (a). To date, Matthew has not made an election to be executed by lethal gas. Consequently, the only method available to the State for executing him is bylethal injection. Matthew therefore has standing to challenge his impending execution 69 396 California’s execution proceduresviolate the federal constitution in two respects. First, the State has failed to comply with the statutory requirement that standards for lethal injection be established by the Department ofCorrections. (Cal. Pen. Code § 3604, subd. (a).) Second, both of the statutory methods of execution constitute cruel and unusual punishmentin violation ofMatthew’srights under the Eighth Amendment. While Matthew recognizes that this Court has rejected similar Eighth Amendmentchallengesto the California’s execution procedures(see, e.g., People v. Samayoa (1997) 15 Cal.4th 795, 863), he respectfully requests reconsideration andalso raises the issue here to preserveit for federal review. B. The Department Of Corrections’ Failure To Adopt The Regulations Mandated By Penal Code Section 3604 Violates Matthew’s Right To Procedural Due Process. The Fourteenth Amendmentguaranteesthat no person will be deprived of life, liberty, or property without due process of law. (U.S. Const., Amend. XIV.) To establish a violation ofthe right to procedural due process, the complaining party must show:(1) a constitutionally protected interest in life, liberty or property; (2) governmental deprivation of that interest; and (3) the constitutional inadequacy ofprocedures accompanying the deprivation. (Bank ofJackson County v. Cherry (1 1" Cir. 1993) 980 F.2d 1362, 1366.) A capital appellant facing execution has a constitutionally protected interest in life that is not extinguished by his judgment and sentence. (Ohio Adult Parole Authority v. Woodward (1998) 523 U.S. 272, 281; see also Id. at p. 288, conc. opn, of O’Connor, J.) The State of California is plainly attempting to deprive Matthew of by this methodas a violation of his rights under the federal constitution. The fact that Matthew has the option to chooselethal gas is legally irrelevant. Thestate 397 life and must accordingly do so in accordance with procedures which accord with the requirements of due process. As the following discussion demonstrates, the procedures adopted by the state were and are constitutionally inadequate. Whena statute requires a regulatory agency to adopt standards to guide the performanceofspecified actions, the agency’sfailure to adopt such standards or to comply with the procedures required for adoption of standards prior to taking those actions violates the guarantee ofprocedural due process. (See,e.g., Marshall v. Union Oil (9th Cir. 1980) 616 F.2d 1113, 1116.) In California, all regulations and other standards ofgeneral application employed by a governmental agency must be adopted pursuantto the procedures set forth in the state Administrative Procedures Act (hereinafter “the Act.” (Gov’t Code § 11342, subd. (g).) The Act mandates that rigorous procedures be observedprior to the adoption of regulations, including public notice and hearings, legal review, and a public commentperiod, followed by filing ofthe regulation with the Secretary of State. (See, e.g., Gov’t Code §11346.4, et seq.) Rules adopted without complying with the Actare invalid and may not be enforced. (Gov’t Code §11340.5.) To counsel’s knowledge, the Department of Corrections has not complied with the mandate of section 3604, subdivision (a), to establish standards for the administration of lethal injections or with the provisions ofthe Administrative Procedures Act. The only regulation in the California Code ofRegulations which even mentions the words “lethal injection” is 15 C.C.R. §3349. This section merely sets forth the procedures and departmental forms required for a Death Row inmate’s request for either lethal injection or lethal gas and therefore does not comply with the requirements of section 3604, subdivision (a). The only other information dealing with the subject which is available from the Department of Corrections is a brief document, dated March, 1996, which merely provides a vague description ofthe Department’s lethal injection procedures. The document, may not cloak an unconstitutional cruel and unusual punishmentin the mantle of 398 similar in tone to a press release, neither states the source ofthe informationit contains norrefers to any official regulations or rules. In pertinentpart, this documentstates as follows: The inmate is connected to a cardiac monitor which is connected to a printer outside the execution chamber. An IV is started in two usable veins and a flow ofnormalsaline solution is administered at a slow rate. [One line is held in reserve in case of a blockage or malfunction in the other.} The door is closed. The warden issues the execution order. In advance ofthe execution, syringes containing the following are prepared: 5.0 grams of sodium pentothal in 20-25 cc of diluent 50 cc ofpancuronium bromide 50 cc ofpotassium chloride Each chemicalis lethal in the amounts administered. At the warden’s signal, sodium pentothal is administered, then the line is flushed with sterile normalsaline solution. This is followed by pancuronium bromide,a saline flush, and finally, potassium chloride. As required by the California Penal Code, a physician is present to declare when death occurs. (California Department of Corrections, http://www.cdc.state.ca.us/issues/capital/capital4htm; see also In re Carpenter, Petition for Habeas Corpus, S083246.) This document obviously does not comply with the provisions ofthe Act. No notice appears to have been given to the public prior to its adoption, noris Matthew aware that any hearing or public comment period preceded its adoption either. The document does not appear to have been publishedorfiled with the Secretary of State, nor does it appear to have been vetted by the Office of Administrative Law. In addition, the documentitself does not even purport to be a regulation. By its own terms,it does not prescribe the procedures that must be used during an execution, but rather appears to describe for the press or public in general terms the procedures the departmentuses. The foregoing documentalso fails to establish coherent standards for administering lethal injections. The documentis extremely vague and general in “choice.” (Dear Wing Jung v. United States (9th Cir. 1962) 312 F.2d 73, 75-76.) 399 its description. For example,it is not clear from the document how far “in advance ofthe execution” the drugs are prepared. No physicalrestraints are described. It is not clear how many people are present to conduct the executions, whothese people are, what qualifications they must have, or what training they must have undergone. Mostsignificantly, the document does not define a set ofproceduresthat will ensure that a condemnedprisoner will be free from unnecessary suffering. The document’sfailure to prescribe even a minimallevel oftraining for the personnel involved in administering the lethal injection raises a substantial and unnecessary risk that the subject will undergo extreme pain and suffering before and during his execution. If inadequately trained personnel improperly insert the catheter, the chemicals may be inserted into Matthew's muscle or othertissue rather than directly into his bloodstream, causing extreme pain in the form of a severe burning sensation. Furthermore,a failure to inject the chemicals directly into the bloodstream will cause the chemicals to be absorbed far more slowly, and the intended effects will not occur. Improperinsertion ofthe catheter could also result in its falling out ofthe vein, resulting in a failure to inject the intended dose. Therealso is the risk that the catheter will rupture or leak as pressure builds up during the administration ofthe chemicals unless the catheter has adequate strength and all the joints and connections are adequately reinforced. The document does not mandate that a physician or other trained medical expert be present to render treatment or assistance to a prisonerin the event of an emergency; instead, the document mandates only that a physician be present to declare death. In fact, medical doctors are prohibited from participating in executions pursuantto the ethical principles set forth in the Hippocratic Oath. The American Nurses Association also forbids members from participating in executions. This increases the chances of improper administration which could result in pain, an air embolism,the clotting ofthe catheter which would prevent injection, and heart failure. Furthermore, the documentsets out specific dosages 400 ofthree drugs to be administered to all subjects, but different dosages affect different people in different ways, depending upon individual body weight, metabolism, and other medical conditions. Accordingly, there is a risk that the listed dosages may be inadequate for the purposes for which they were selected, mayresult in unanticipated or inappropriate effects in a particular individual for medical or other reasons, and may inflict unnecessarily extreme pain and suffering. The documentalso does not outline the proper guidelines for the storage or the handling ofthe chemicals involved. Improperly stored and/or handled chemicals may cause unnecessary suffering. Sodium pentothal wears off quickly; and if not enough is given, it may paralyze the muscles ofthe prisoner and render him incapable ofbreathing while still conscious, causing panic and an excruciatingly arduous death. Plainly, the procedures outlined in the document discussed above were not properly adopted as required by the statute and the Administrative Procedures Act. Theyare constitutionally inadequate under the Fourteenth Amendmentas a violation ofMatthew’sright to procedural due process and also may not be enforced understate law. (Gov’t Code §11340.5.) C. California’s Lethal Injection Procedure Violates The Eighth AmendmentProhibition Against Cruel And Unusual Punishments. California’s lethal injection proceduresalso violate the Eighth Amendment ban on cruel and unusual punishments. The Eighth Amendmentproscribes punishmentthat wouldinflict torture or a lingering death or involve the wanton infliction ofpain. (In re Kemmler (1890) 136 U.S. 436, 447; Gregg v. Georgia, supra, 428 U.S.at p. 173; Hudson v. McMillian (1992) 503 U.S. 1.) The Amendment embodies concepts of dignity, civilized standards, humanity and decency against which a court must evaluate penal measures. (Estelle v. Gamble 401 (1976) 429 U.S. 97.) It prohibits punishments that are incompatible with “evolving standards of decency that mark the progress of a maturing society.” (Irop v. Dulles, supra, 356 U.S. at p. 101.) To discern the “evolving standards of decency,” courts look to objective evidence ofhow society views a punishment today. (Coker v. Georgia, supra, 433 U.S. at pp. 593-597; Enmund v.Florida, supra, 458 U.S.at p. 788-796.) In essence, “no court would approve any method of implementation ofthe death sentence found to involve cruelty in light of presently available alternatives.” (Furman v. Georgia, supra, 408 U.S.at p. 430.) Death by lethal gas has been ruled cruel and unusual punishment. (Fierro v. Gomez (N.D. Cal. 1994) 865 F.Supp.1387,aff'd, 77 F.3d 301, 309, vacated & remanded 519 U.S. 918 (1996).) On October 15, 1996, the judgmentofthe Ninth Circuit was vacated in light of amendmentsto section 3604. (Gomez v. Fierro (1996) 519 U.S. 918.) In 1996, section 3604 was again amended,to provide that in default of an election by the inmate, the execution would beby lethalinjection. However,lethal injection also results in precisely the kind ofpainful, agonizing, and lingering death which the Eighth Amendmentprohibits. In examining whether a method of execution is “unconstitutionally cruel,” the court must examine the “degree ofrisk” involvedin its administration. (Fierro v. Gomez, supra, 865 F.Supp.at p. 1411, discussing Campbell v. Wood (9th Cir. 1994) 18 F.3d 662.) Factors to be considered in this assessment include the amountofpain involved and the immediacy ofunconsciousness. (Id. at pp. 1410- 1411 [interpreting the authorities cited in Campbell].) The Fierro court interpreted Campbell to suggest that "the persistence of consciousness “for over a minute’ or for ‘between a minute and a minute-and-a-half but no longer than two minutes’ might be outside constitutional boundaries.”(Id. at p. 1411.) There have been many instances where execution by lethal injection has been prolonged, extending the amount ofpsychological pain inflicted. (See re Carpenter, Petition for Writ ofHabeas Corpus, $083246.) In Oklahomain 1992, for example, Robyn Lee Parksfinally died after gasping, coughing and gagging 402 for eleven minutes after the drugs werefirst administered. One reporter who witnessed Parks’ death wrote that the execution looked “painful and ugly and scary.” “It was overwhelming, stunning, disturbing -- an intrusion into a moment so personalthat reporters, taught for years that intrusion is their business, had trouble looking each otherin the eyes after it was over.” (“11-Minute Execution Seemingly Took Forever,” Tulsa World, (Mar. 11, 1992) p. A13.) Stephen Peter Morin’s execution technicians were forced to probe both ofMorin’s arms and one of his legs with needles for nearly 45 minutes before they found a suitable vein because of Morin’shistory of drug abuse. (“Murderer of Three Womenis Executed in Texas,” N.Y. Times (Mar. 14, 1985) p. 9.) Similarly, after repeated failures in trying to find a suitable vein, Randy Wools, a drug addict, eventually helped the execution technicians find a useable vein. (“Killer Lends a Hand to Find a Vein for Execution,” L.A. Times (Aug. 21, 1986) p. 2.) It took nearly an hour to complete the execution of Elliot Rod Johnson due to collapsed veins. (“Addict is Executed in Texas for Slaying of2 in Robbery,” N.Y. Times (June 25, 1987) p. A24.) In 1988, it took forty minutes after he was strapped to the execution gurney for prison personnel to pronounce Raymond Landry dead. It took twenty-four minutes after the drugs first started flowing into his arms. (“Drawn-out Execution Dismays Texas Inmates,” Dallas Morning News(Dec. 15, 1988) p. 29A.) Two minutes after prison personnel administered the drugs, the syringe came out of Landry’s vein, spraying the deadly chemicals across the room toward witnesses. (“Landry Executed for ‘82 Robbery-Slaying,” Dallas Morning News (Dec. 13, 1988) p. 29A.) The curtain separating the witnesses from the inmate was then closed, and not reopened for fourteen minutes while the execution team reinserted the catheter into the vein. (Ibid.) A spokesman for the Texas Department of Correction, Charles Brown [sic], said, “There was something ofa delay in the execution because ofwhatofficials called a ‘blowout.’ The syringe came out of 403 the vein, and the warden ordered the (execution) team to reinsert the catheter into the vein.” (Ibid.) Medical stafftook more than 50 minutesto find a suitable vein in Rickey Ray Rector’s arm. Witnesses were kept behind a drawn curtain, but reported hearing Rector utter eight loud moans. During the ordeal Rector helped the medical personnelfind a vein. The administrator of State’s Department of corrections medical programssaid (paraphrased by a newspaperreporter)“the moans did come as a team oftwo medical people that had grown to five worked on both sides ofhis body to find a vein. The difficulty in finding a suitable vein waslater attributed to Rector’s bulk and his regular use of anti-psychotic medication. (“Rector, 40, Executed for Officer’s Slaying,” Ark. Democrat Gazette (Jan. 25, 1992) p. 1; “Rector’s Time Came, Painfully Late,” Ark. Democrat Gazette (Jan. 26, 1992) p. 1B; Frady, “Death in Arkansas,” The New Yorker (Feb. 22, 1993) p. 105.) Billy Wayne White was pronounced dead some 47 minutesafter being strapped to the execution gurney. (“Another U.S. Execution Amid Criticism Abroad,” N.Y. Times (April 24, 1992) p. B7.) The delay was caused by difficulty finding a vein; White had a long history ofheroin abuse. (Ibid.) During the execution, White also attempted to assist the authorities in finding a suitable vein. (Ibid.) The execution ofJohn Wayne Gacyprovides a similar example. After the execution began, the lethal chemicals unexpectedly solidified, clogging the [V tube that led into Gacy’s arm and prohibiting any further passage. Blinds covering the windowthrough which witnesses observed the execution were drawn, and the execution team replaced the clogged tube with a new one. Ten minuteslater, the blinds were reopened and the execution process resumed. It took eighteen minutes to complete. Anesthesiologists blamed the problem on the inexperienceofprison officials who were conducting the execution, saying that proper procedures taught in “IV 101” would have prevented the error. (“Gacy Lawyers Blast Method: 404 Lethal Injections Under Fire After Equipment Malfunction,” Chicago Sun-Times (May 11, 1994) p. 5; “Witnesses Describe Killer’s ‘Macabre’ Final Few Minutes,” Chicago Sun-Times (May11, 1994) p. 5; “Gacy Execution Delay Blamed on Clogged IV Tube,” Chicago Tribune (May 11, 1994) p. 1.) Seven minutes after the lethal chemicals began to flow into Emmitt Foster’s arm, the execution was halted when the chemicals stopped circulating. (“Witnesses to a Botched Execution,” St. Louis Post-Dispatch (May 8, 1995)p. 6B.) With Foster gasping and convulsing, the blinds were drawn so the witnesses could not view the scene. (Ibid.) Death was pronouncedthirty minutes after the execution began, and three minutes later the blinds were reopened so the witnesses could view the corpse. (Ibid.) Because they could not observe the entire execution procedure through the closed blinds, two witnesses later refused to sign the standard affidavit that stated they had witnessed the execution. (Ibid.) In an editorial, the St. Louis Post-Dispatch called the execution “a particularly sordid chapter in Missouri’s capital punishment experience.” (Ibid.) According to the coroner who pronounceddeath, the problem was causedby the tightness ofthe leather straps that bound Foster to the execution gurney;it was so tight that the flow of chemicals into the veins wasrestricted. (“Too-Tight Strap Hampered Execution,” St. Louis Post-Dispatch (May 5, 1995) p. B1; “Execution Procedure Questioned,” Kansas City Star (May 4, 1995) p. C8.) Richard Townes, Jr.’s execution was delayed for twenty-two minutes while medical personnelstruggled to find a vein large enough for the needle. After unsuccessful attempts to insert the needle through the arms, the needle was finally inserted through the top of Mr. Townes’right foot. (“Store Clerk’s Killer Executed in Virginia,” N.Y. Times (Jan. 25, 1996) p. A19.) It took one hour and nine minutes for Tommie J. Smith to be pronounced dead after the execution team began sticking needles into his body because of unusually small veins. (“Doctor’s Aid in Injection Violated Ethics Rule: Physician HelpedInsert the Lethal Tube in a Breach ofAMA’s Policy Forbidding 405 Active Role in Execution,” Indianapolis Star (July 19, 1996) p. Al.) For sixteen minutes, the execution team failed to find adequate veins, and then a physician was called. (Ibid.) The physician made twoattemptsto insert the tube in Smith’s neck. (Ibid.) Whenthat failed, an angiocatheter was inserted in Smith’s foot. (Ibid.) Only then were witnesses permitted to view the process. (Ibid.) Thelethal drugs werefinally injected into Smith 49 minutesafter the first attempts, andit took another 20 minutes before death was pronounced. (“Problem with Veins Delays Execution,” Indianapolis News (July 18, 1996) p. 1.) It took nearly an hour to find a suitable vein for the insertion ofthe catheter into Michael Eugene Elkins. (“Killer Helps Officials Find a Vein at his Execution,” Chattanooga Free Press (June 13, 1997) p. A7.) It took nearly an hour to find a suitable vein for the insertion ofthe catheter. (Ibid.) Elkinstried to assist the executioners, asking “Should I lean my head down little bit?” as they probed for a vein. (Ibid.) After numerousfailures, a usable vein wasfinally found in Elkins’ neck. (Ibid.) Therisk of such prolonged administration ofthe lethal injection is increased by California’s lack of comprehensive standardsin defining the procedures. In McKenzie v. Day, supra, 57 F.3d 1461 the Ninth Circuit held that execution by lethal injection under the procedures which had been defined in Montanawas constitutional. The Court ofAppeals explained that those procedures passed constitutional muster because they were “reasonably calculated to ensure a swift, painless death.” (Id. at p. 1469) Such a statement cannot be made about the proceduresin California. A swift, painless death cannot be ensured without standardsin place to ensure that the lethal chemicals will be administered to Matthew in a competent, professional manner by someone adequately trained to do so. Similarly, in LaGrand v. Lewis (D. Ariz. 1995) 883 F.Supp. 469, affd (9th Cir. 1998) 133 F.3d 1253, the district court upheld the written Internal ManagementProceduresprescribing standards for the administration oflethal 406 injection because“they clearly indicate that executions are to be conducted under the direction ofthe ASPC-Florence Facility Health Administrator, knowledgeable personnelare to be used, and the presence of a physician is required.” (id. at 470.) Such proceduresare not found in the California Code ofRegulationsorin the documentreleased by the California Department of Corrections. California’s use of lethal injection in the administration of the death penalty fails to protect condemnedprisoners from unnecessary pain andsuffering, violating the Eighth Amendmentofthe Constitution. The risk ofinflicting such cruel and unusualpain is enhanced with the lack of established, comprehensive protocols. (But see People v. Bradford (1997) 14 Cal.4th 1005, 1059.) Accordingly, Matthew’s deathjudgment must be vacated and mustnotbe carried out. XX. THE TRIAL COURT’S RESTITUTION ORDERS WERE UNAUTHORIZED AND MUSTBE STRICKEN. Thetrial court imposed a $10,000restitution fine under Penal Code section 1202.4. (CT 799, 806.) In addition, the court ordered Matthewto pay a total of $14,178.73 restitution to the Victim/Witness program to reimburse it for compensating the victims’ families for their losses resulting from the crimes. (CT 799, 806.) As explained below,the court’s restitution orders were unauthorized and must be stricken. Both thestate and federal constitutions prohibit ex postfacto laws that inflict a greater punishment than authorized when the crime was committed. (U.S. Const., Art. 1, §§ 9-10; Calif. Const., Art. I, § 9; see, e.g., Lindsey v. Washington (1937) 301 U.S. 397; Tapia v. Superior Court (1991) 53 Cal.3d 282, 298.) Restitution is criminal punishment. (People v. Hansen (2000) 23 Cal.4™ 355, 357; People v. Zito (1992) 8 Cal.App.4® 736, 741) Accordingly, the ex postfacto clause appliesto restitution fines. (People v. Zito, supra, at p. 741; see also People v. Hansen, supra, at p. 357 [restitution fine is punishment for double jeopardy 407 purposes].) Therefore, the restitution statutes that existed at the time ofthe charged December 1993 crimes applied in this case rather than the statutes that existed at the time ofthe 1999 sentencing hearing. (See People v. Zito, supra, at p. 741.) In Decemberof 1993, Penal Code section 1202.4, subdivision (a) provided in relevant part as follows: (a) In any case in which a defendantis convicted ofa felony, the court shall order the defendantto pay a restitution fine as provided in subdivision (a) of Section 13967 ofthe Government Code. Such restitution fine shall be in addition to any other penalty orfine imposed andshall be ordered regardless ofthe defendant's present ability to pay. However, ifthe court finds that there are compelling and extraordinary reasons, the court may waive imposition of the fine. When such a waiveris granted, the court shall state on the record all reasons supporting the waiver. Government Code section 13967 provided in relevant part as follows: (a) Upon person being convicted ofany crimein the State of California, the court shall, in addition to any other penalty provided or imposed underthe law, order the defendantto pay restitution in the form of a penalty assessment in accordance with Section 1464 of the Penal Code andto payrestitution to the victim in accordance with subdivision (c). In addition, ifthe person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine ofnot less than two hundred dollars ($200), subject to the defendant's ability to pay, and not more than ten thousand dollars ($10,000). In setting the amountofthe fine for felony convictions, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity ofthe offense and the circumstances of its commission, any economic gain derived by the defendantas a result ofthe crime, and the extent to which others suffered losses as a result ofthe crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Except as provided in Section 1202.4 of the Penal Code and subdivision (c) ofthis section, under no circumstancesshall the 408 court fail to impose the separate and additional restitution fine required by this section. This fine shall not be subject to penalty assessments as provided in Section 1464 ofthe Penal Code. (b) Except as provided in subdivision (c), the fine imposed pursuantto this section shall be deposited in the Restitution Fund in the State Treasury. Notwithstanding Section 13340, the proceeds in the Restitution Fund are hereby continuously appropriated to the board for the purpose ofindemnifying personsfiling claims pursuant to this article. However, the funds appropriated pursuantto this section for administrative costs of the State Board of Control shall be subject to annual review through the state budget process. (c) In cases in which a victim has suffered economicloss as a result ofthe defendant's criminal conduct, and the defendantis denied probation, in lieu ofimposing all or a portion ofthe restitutionfine, the court shall order restitution to be paid to the victim. .... Notwithstanding subdivision (a), restitution shall be imposedin the amountofthe losses, as determined. The court shall orderfull restitution unless it finds clear and compelling reasons for not doing so, and states them on the record. A restitution order imposed pursuantto this subdivision shall identify the losses to whichit pertains, and shall be enforceable as a civil judgment. The making ofa restitution order pursuantto this subdivision shall not affect the right of a victim to recovery from the Restitution Fund in the manner provided elsewhere, except to the extent that restitution is actually collected pursuant to the order. Restitution collected pursuant to this subdivision shall be credited to any other judgments for the samelosses obtained by the victim against the defendant arising out ofthe crime for which the defendant was convicted.. . . Rather than applying the foregoing statutes, it clearly appears that the trial court applied the law that existed at the time of sentencing. At the time ofthe 1999 sentencing, Penal Code section 1202.4, cited by the trial court, provided in relevant part as follows: (a)(1) It is the intent ofthe Legislature that a victim of crime who incurs any economicloss as a result of the commission of a crime shall receive restitution directly from any defendant convicted ofthat crime. 409 (2) Upona person being convicted ofany crimein the State of California, the court shall order the defendantto pay a fine in the form ofa penalty assessment in accordance with Section 1464. (3) The court, in addition to any other penalty provided or imposed underthe law,shall order the defendant to pay both ofthe following: (A) A restitution fine in accordance with subdivision (b). (B) Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as ifthe order were a civil judgment. (b) Inevery case where a person is convicted ofa crime, the court shall impose a separate and additionalrestitution fine, unless it finds compelling and extraordinary reasonsfor not doing so, and states those reasons on the record. (1) The restitution fine shall be set at the discretion ofthe court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor.. . . (c) The court shall imposetherestitution fine unlessit finds compelling and extraordinary reasons for not doing so, andstates those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amountofthe restitution fine in excess ofthe two- hundred-dollar ($200) or one-hundred-dollar ($100) minimum. (d) _Insetting the amountofthe fine pursuantto subdivision (b) in excess ofthe two-hundred-dollar ($200) or one-hundred-dollar ($100) minimum,the court shall consider any relevant factors including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstancesofits commission, any economic gain derived by the defendantas a result ofthe crime, the extent to which any other person suffered any losses as a result of the crime, and the numberofvictims involved in 410 the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration ofa defendant's inability to pay may includehis or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amountofthe fine shall not be required. A separate hearing for the fine shall not be required. . . . (f) In every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant makerestitution to the victim or victims in an amount established by court order, based on the amountofloss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertainedat the time of sentencing, the restitution order shall include a provision that the amountshall be determinedat the direction ofthe court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record... . (2) Determination ofthe amountofrestitution ordered pursuant to this subdivision shall not be affected by the indemnification or subrogation rights of any third party. Restitution ordered pursuant to this subdivision shall be ordered to be deposited to the Restitution Fundto the extent that the victim, as defined in subdivision (k), has received assistance from the Victim Compensation Program pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 ofthe Government Code.. . It is obvious that the court applied Penal Code section 1202.4, as it existed at the time of sentencing andas set forth above, in imposingrestitution in Matthew’s case. It ordered a restitution fine in the amount of $10,000. (CT 799, 806; Pen. Code § 1202.4, subd. (b)(1).) In addition, the court ordered $14,178.73 restitution to be paid to the Victim/Witness program for the compensation it paid to the victims in various amounts. (CT 799, 806; Pen. Code § 1202.4, subds. (a)(3) & 411 The differences between the law that existed at the time ofsentencing and the law that existed at the time the crimes were committed were significant. The court’s orders exceed the maximum allowed underthe statutes that existed at the time ofthe crimes and otherwise suffer from several flaws underthat law. Under former Government Code section 13967, subdivision (c), the victim witness program presumably qualified as a victim to whom directrestitution could be ordered. (See, e.g., People v. Kwolek (1995) 40 Cal.App.4™ 1521, 1528-1535 [direct victim restitution under former Government Code section 13967, subdivision (c) may be madeto State Board of Control, which provides funds to crime victims].) However,the total direct restitution order of $14,178.73 exceeded $10,000. Because subdivision (c) permitted direct victim restitution, but only “in lieu of all or a portion ofthe restitution fine” under subdivision (a), the additional $10,000fine that the court imposed would haveto be stricken. (CT 799, 806; see, e.g., People v. Kwolek, supra, 40 Cal-App.4” at p. 1536 [court must offset direct victim restitution under subdivision (c) against restitution fine under subdivision (a)]; People v. Zito, supra, 8 Cal.App.4" 736, 742 [same]; People v. Cotter (1992) 6 Cal.App.4” 1671, 1676 [same].) Furthermore, the direct victim restitution order was based, in part, upon insufficient evidence. (See Gov’t Code § 13967, subd. (c).) The written order reflects victim losses as follows: “$5,500 Regina Watchman; $270 Victoria Gonzalez for Joseph Perodia; $2,446 Merlene Besoni; $2.059.33 Alice Arnold; $663.40 Beulah John; $180 Alice Arnold for Mental Health; $3,060 Victoria Gonzalez for mental health.” (CT 799, 806.) With respect to the $5500 reflected loss for Regina Watchman, however,it is a clerical error. The probation report indicates that Watchman’s family did not submit any compensation claim. (Probation Report at p. 5.) The report does reflect that Alice Arnold claimed a total of $5,500 and the court so notedin its oral order. (Probation Report at p. 4 and attachments; RT 3989) However, the court’s order also reflected loss to Arnold in the amount of $2,059.33, as compensated by the victim witness 412 program. (CT 799, 806; see also Probation Report at p. 5.) In other words, the order erroneously reflects a $5,500 loss to Regina Watchman;substituting — consistent with the court’s oral statements and the evidence — Alice Arnold’s name for Watchman’s name,the orderstill erroneously reflects a total loss to Arnold of $7,559.33, when in fact her total claimed loss was $5,500. On the other hand,the trial court could order a $10,000 restitutionfine under subdivision (a). If so, however, the court was precluded from ordering additional direct victim restitution under subdivision (c). (People v. Kwolek, supra, 40 Cal.App.4" 1521, 1536; People v. Zito, supra, 8 Cal.App.4" 736, 742; People v. Cotter, supra, 6 Cal.App.4" at p. 1676.) Forall ofthese reasons, the court’s restitution orders underthe statutes that existed at the time of sentencing violated the ex post facto clauses ofthe state and federal constitutions, were unauthorized, and mustbestricken. (People v. Scott (1994) 9 Cal.4™ 331, 354 and n. 17 [unauthorized sentences are not waived for failure to object]; People v. Zito, supra, 8 Cal.App.4” at p. 741 [imposition of restitution in violation of expostfacto prohibition is unauthorized and therefore not waived for failure to object].) 413 CONCLUSION For the foregoing reasons, the judgments of conviction and the sentence of death must be reversed. DATE: ssLdg, 2a Respectfully submitted, CTR VAG ZS C-Delaine Renard Attorney for Appellant Matthew A. Souza 414 CERTIFICATE OF WORD COUNT Pursuant to California Rules of Court, Rule 36, subdivision (b)(2), I certify that, according to Microsoft Word’s word count program, the attached Appellant’s Opening Brief contains 139, 832 words, excluding Tables of Contents and Authorities. Executed onsce Ld,TOS,at Berkeley, California. C. Delaine Renard / CERTIFICATE OF SERVICE I, C. Delaine Renard, am over 18 years of age. My business addressis 2625 Alcatraz Avenue, PMB 247, Berkeley, California 94705. I am not a party to this action. On January 13,2005 _, I served the within: APPELLANT’S OPENING BRIEF uponthe parties named below by depositing a true copy in a United States mailbox in Berkeley, California, in a sealed envelope, postage prepaid, and addressed as follows: Michael Lasher California Appellate Project 101 Second Street, Ste. 600 San Francisco, CA 94105 Matthew Souza P-29900 San Quentin State Prison San Quentin, CA 94974 Attorney General 455 Golden Gate Ave., Ste. 11000 San Francisco, CA 94102 Alameda County District Attorney 1225 Fallon Street, Ste. 900 Oakland, CA 94612-4293 Superior Court ofAlameda County (Hon. Joseph Hurley) 1225 Fallon Street # 209 Oakland, CA 94612-4293 declare under penalty ofperjury that the foregoing is true. Executed on a. (2 , 2005, in Berkeley, California. . Delaine Renard
