PEOPLE v. SIVONGXXAY (VAENE) (To be called and continued to the December 2016 calendar.)Appellant’s Reply BriefCal.December 31, 2013SUPREME COURTCOPY copy IN THE SUPREME COURT OF THESTATE OF CALIFORNIA THE STATE OF CALIFORNIA, No. $078895 Plaintiff and Respondent, (Fresno Superior Court v. No. 590200-2) VAENE SIVONGXXAY, Defendant and Appellant. APPELLANT’S REPLY BRIEF SUPREME COURT Appeal from the Judgmentof the Superior Court DEC 3 1 2013 of the State of California for the County of Fresno Honorable Gene M. Gomes, Judge Frank A. wieGuire Clerk Deputy MICHAELJ. HERSEK State Public Defender DOUGLAS WARD Senior Deputy State Public Defender Cal. State Bar No. 133360 ward@ospd.ca.gov 1111 Broadway, 10% Floor Oakland, California 94607 Phone (510) 267-3300 Attorneys for Appellant P r e n g t r u r w C P e e C c o m m e ~ + 2 [ a ] T S I C W — TABLE OF CONTENTS Page TABLE OF CONTENT. .......:ssccsssesecessceesenssasesssconesccsesessseconsssecnscssesssens i TABLE OF AUTHORITIES.........ccccccssccsssseeseesesccsnesssseescssnecosseesssseonss iii INTRODUCTION.........ccscssessssscssserecsceessecsnnnssssssensesssesosssescosessanseeseseerens 1 ARGUMENTS......ssssssscsssssorssssconsesessereceseeessseessecesnasensssseseosssnsscsscsseconsseass 2 1. APPELLANT WAS DENIED HIS FUNDAMENTAL CONSTITUTIONAL RIGHT TO A TRIAL BY JURY.............. 2 A. Appellant’s Putative Waiver of His Right to Trial by Jury at the Guilt Phase Is Invalid ..........scccccsssssrsssesrercseesvonscececeseeenens 2 B. The Putative Waiver of the Right to Jury for the Special Circumstance Determination Is Invalid........scsssssesseressreeesseees 14 C. The Putative Waiver of the Right to Trial by Jury at the Penalty Phase Is Invalid .........sssssessscssesssercessrsncsesseseesseesnsentes 17 D. Denial of the Right to Trial by Jury Is Structural Error That Requires Reversal.........ssscsssssssssssercssecsscsrsesessesesresseessasees20 2. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO DEATH BASEDIN PART ON HIS PUTATIVE POSSESSIONINJAIL OF A SMALL METAL ITEM, WITH NO PROOF THATIT WAS SHARP OR DANGEROUG........csscsssssccssssccnceeesessneeacesessseessessocacsceesesscnsnsenasens23 A. The Trial Court Erroneously Relied on Possession of the Small Piece of Metal in Sentencing Appellant to Death...........23 B. The Trial Court’s Reliance on this Evidence in Sentencing Appellant to Death Is Prejudicial, Both Individually and When Considered with the Other Penalty Phase Errors...........25 3. APPELLANT’S ANGRY AND AMBIGUOUS RETORT TO AJAIL GUARD WAS NOT AN UNLAWFUL THREAT UNDERSECTION69, AND WAS ERRONEOUSLY RELIED UPON BY THE TRIAL COURT IN SENTENCING APPELLANT TO DEATH......... 31 TABLE OF CONTENTS Page 4. THE TRIAL COURT ERREDIN RELYING ON APPELLANT’S NONVIOLENT WALKAWAY FROM A PRISON CAMP IN WASHINGTON STATE NINE MONTHS BEFORE THE CAPITAL CRIME AS A CIRCUMSTANCEOFTHE CRIMEIN SENTENCING APPELLANT TO DEATH .u.........cccccccccrsssccccssccnssccssesscesceescesseese42 A. The Claim Should Be Addressed on the Merits............cssscssssee42 B. The Walkaway Was NotPart of the Circumstancesof the Offense Under Section 190.3, Factor (a).....ccccsssocsssreeseesssseesees45 C. The Error Is Prejudicial ............:ccccccssesssrecesssseressnsesessenenseseseenes48 CONCLUSIONji... ccccccccsscccsscscccscccsssecreccusccsesconssseesessesensssnsssecssssesevensseens 51 CERTIFICATE AS TO LENGTHOFBRIEE............ccccossesserssvssscesseees52 ATTACHMENTS TO APPELLANT’S REPLY BRIEF: UNPUBLISHED FEDERAL OPINIONS AND A STATE BAR COURT OPINION .........ccccscccssccccssccssscccscesccsssscccesscosssssceseccesssesvecesesooss 53 TABLE OF AUTHORITIES Page(s) Federal Cases Abdul-Kabir v. Quarterman (2007) 550 U.S. 233 vsssssssscssesscssecsssssssensenneenecrenneees 28 Addams v. McCann (1942) 317 U.S. 269 wesscsssssesssssssesssecssesecssesssneessneessssness 3, 6, 10 Apodaca v, Oregon (1972) 406 U.S. 404 wcecsesssecsnecseecneentecneeneessesseesssesssesssesseesey 4 Barclay v. Florida (1983) 463 U.S. 939 wrsscsecssecssesssscssesseeseccesestenneesessneersnneensennees 30 Boykin v. Alabama (1969) 395 U.S. 238 .eccssssssssrscsssessserensseneensenecseateeseeseneenees4,6 Carnley v. Cochran (1962) 369 U.S. 506 ...essessssssssesssesstenseseeneestenteaeseneesneeenrensenans4,6 Chambers v. Mississippt (1973) 410 U.S. 284 vcsesssescsessersecteneessensenseseesssnneaseneey 29 Chapman v. California (1967) 386 U.S. 18 .eessesssesseresresnerntenersnesnieensssnes passim City ofCleburne, Tex. v. Cleburne Living Center (1985) 473 U.S. 432ween19 City ofHouston, Tex. v. Hill (1987) 482 US. 451 wcescscsssssseeeneennsensennseesnrecsnersnensns 39 Deck v. Missouri (2005) 544 U.S. 622 vescsssssesssssasesessesseeessseesssnessssessssnseneseensenes 44 Florida v. Nixon (2004) 543 U.S. 175 ccscsssssssssssessssesssssssensesssnenssersessseneessersesseaesees 9 Hicks v. Oklahoma (1980) 447 U.S. B43 vcccssssessseeseeeseeseseesesssseneeseneennseneaenees 19 Hodges v. Easton (1882) 106 U.S. 408...eessessecssecssecsssestentensseneeneentecnsenesensensneensnanss 15 Hovey v. Ayers (9% Cir, 2006) 458 F.3d 892....ccsesssesseereecessssrseeneenneeenneenseesneees 28 Tn re Medley (1890) 134 U.S. 160... sessessesssesessesseessseeerseeneeneensseseeeeneenseessenneeaneey 38 Trvin v. Dowd (1961) 366 U.S. 717 vcssssssssssssesssssesssssseseeseneeessescesceseeseeenseessneenennes 2 Johnson v. Mississippt (1988) 486 U.S. 578 .essessssecsesnseseeeeseeseesenneneessssnesseneseseeesees 43 Johnson v. Zerbst (1938) 304 U.S. 458 vessseecseesssecsnecsssesseessecneeaeeneeaensnes4,6, 10, 15 McClary v. Kelly W.D.NY. 1998) 4 F.Supp.2d 195 vsccecsecessseseseesneeesneecntene 38 Miller v. Dormire (8 Cit. 2002) 310 F.3d GOO... ssssesssseeseessenersesseecnssenecneeanees 20 Mills v. Maryland (1966) 486 U.S. 367 ..ssscssssssessesssessensesseseeseentensenneeceteenscneeneeey 28 Patton v. United States (1930) 281 U.S. 276 vrsessessessseeeeesersenseeseeenen 2, 3, 6, 11 Petilla v. Bank One LaFayette (9% Cir., Aug. 25, 1997, No. 96-17317) 122 F.3d 1073 wrcssecscssesecesssessssnessssessssresecsssesssssesscssessssssseaseseseessanenessesessnseasassenenes 13 Petilla v. First Card National Bank (9% Cir., June 3, 1997, No. 96- 17037) 116 F.3d 485woessesssesssssesssessnesssssesseeessesssessessenseenesneesenserneeenersssneenees 13 Satterwhite v. Texas (1988) 486 U.S. 249 vccescsecserseeeesesenensesessseesentearenentensenees 28 Schad v. Arizona (1991) 501 U.S. 624... cccsesssessseseeneseenesnsensescenenteseesesescnsneens 18, 19 TABLE OF AUTHORITIES Page(s) Sheppard v. Rees (9% 1990) 909 F.2d 1234... eccsssscscssecneensesnsrsnessstessssesssnsssssssnnss 33 Stringer v. Black (1992) 503 U.S. 222...cscssessesessnsersneeneerneeenseeneenetsenaessssesesienssen 28 Sullivan v. Louisiana (1993) 508 U.S. 275 .cscsesssessseeseeeeesseenessessesseaecneeaeentes 20, 26 Taylor v. Kentucky (1978) 436 U'S. 478..csscsssssssssecsesersseeneenssnsensentenseesiensssesenees 29 United States v. Bagdasarian (9Cir, 2011) 652 F.3d 1113 wieeeeeesecessseeeentenns 40 United States v. Carmenate (2d Cir. 2008) 544 F.3d 105... ccccssssesseseeseerecsenteneens 3 United States v. Duarte-Higareda (9% Cir. 1997) 113 F.3d 1000... 3, 10, 20 United States v. Gonzalex-Loper (2006) 548 U.S. 140 vrssesseseceecesseeeneeneensennennes 21 United States v. Leja (Ast Cit. 2006) 448 F.3d 86....sccsssssseserenneesescneesntenesenesnes 10 United States v. Lilly (3d Cir. 2008) 536 F.3d 190... scsscssessessecesensesnescnesensenreneennees 5 United States v. Mendez (5Cit. 1997) 102 F.3d 126 ..cssecessecseeneeseesneesneeneeseanes 10 United States v. Shorty (9% Cir., Dec. 20, 2013, No. 11-10530) __ F.3d __ [2013 WL 6698061] .....cessessssssessescseereerenseentssseneerseeaneenseeeneens 3, 4, 6 United States v. Wilkams (7Cir, 2009) 559 F.3d 607 .esessessssssssessssneesseteesenesees 20 Wiggins v. Smith (2003) 539 U.S. 510, 537 sssecsesccseecersessesssneesssesssessnnesssennsenss 22 Woodson v. North Carolina (1976) 428 U.S. 280 w.eccssesssesssssssssneeseneeseetscenseesseees 45 State Cases Farm Raised Salmon Cases (2008) 42. Cal.4% 1077 ...ccssssscsssssssssseesssenssssesreeestes 13 Hale v. Morgan (1978) 22 Cal.3d 388....c.ccsssessesssececrensesssreeseeeenssessesssseseesensseens 43 In re Boyette (2013) 56 Cal.4 866 ...cecssssscsesceecsssecnsseseesseseessssesssenensnessssssnsesenseessenss 2 In re George T. (2004) 33 Cal.4th 620... cecseesssssssesssseccneesnsssnsenssnteaseensessntessnsssessvenees 37 I re H.B. (2008) 161 Cal.App.4115 v.cecsessesssssesessessseensecnsrneesnessnessnssneeneesnes 25 In re Hitchings (1993) 6 Cal497 vescsssesssessssssssnneccnsecssensesenrsnesseennassissnsssssenienessseens 4 In re Horton (1991) 54 Cal.3d 82.....cssessesssssesssssessessetessesenesssterserenseseseresensensensens 42 In re Manuel G, (1997) 16 Cal.4® 805 ..cccssessssesssssnesesesessseresseneneeess 32, 35, 37, 40 In re Ryan D. (2002) 100 Cal.App.4t 854 w.cssssscsseccessesnreseensesneesstessessseens 36, 37 In re Scott (2003) 29 Cal.4th 783 ..ecsccsessssessesssessnsessssessnecsserseenseeneesseesniessvensneeasesisey 11 In re Williams (1969) 1 Cal.3d 168... ccsecssseesssssessessnessensenresscessnenssareeneesseesssneenssnsens 9 Matter ofPetilla (Rev. Dept. 2001) 4 Cal. State Bar Ct. Rptt. 231seen13 People v. Alfaro (2007) 41 Cal.4 1277. cssccessssescssnessesssessseneneessecenesesseenseseseees 45 iv TABLE OF AUTHORITIES People v. Anderson (1968) 70 Cal.2d 15 ...ecsssssesssersecsneecntecnsesnseseesneesneeaseesnseneees 25 People v. Aranda (2010) 55 Cal.4™ 342. .csssecssssessecsnsecnsersesssesseeseresnorsnsssnssnsenne 27 People v. Balderas (1985) 41 Cal.3d 144........ aseseeseaecesscareeeseaosesesseceusnsseesnssenssaseneses 47 People v. Blooms (1989) 48 Cal.3d 1194... .ssssssccssssccsnecrsntersntecnssenessnsersnnisssiessnesssins 16 People v. Boyd (1985) 38 Cal.3d 762 ..cssssssssssernessserseccnsesnsenseneesssseesensses 40, 47, 48 People v. Brown (1988) 46 Cal.3d 432....cccssessserseescseecnssenecseessssessresstenssessses passim People v. Brown (2012) 54 Cal.4® 314 vo .ecssssssessneecsessnsecstsestssveesessnrennsessrssseensssans 18 People v, Butler (2009) 46 Cal.4t 847 .ssscsseesssssssserneenneecssesneesneesessnssssenssssns 23, 32 People v. Cabill (1993) 5 Cal.4} 478... ..csessssssessesseescnseseccnsesnsenseasssvssseesssssensssseseereass 26 People v. Carrington (2009) 47 Cal.4145 vcsescsssssssesseesneerneenerssestsnneensssseenneennee 49 People v. Castaneda (1975) 52 Cal.App.3d 334 .ceccssersnersnsecstesntssnecsmessnssssessaessse 8 People v, Castaneda (2011) 51 Cal.41292...cssssescssecsneessneesnteestssniessessrensensnien 45 People v. Collins (1976) 17 Cal.3d 687 .ssssesssecssesssssecnrecsessneesneessrersntessstsssscsssesssess 2 People v. Collins (2001) 26 Cal.4297... ccssssesseesneereesnsenneensesennearsnnsesecsssensess passim People v. Deere (1985) 41 Cal.3d 353 weseccssssssssserssesssennseensensensensensenseenseenessecssesscsnas 16 People v. Diaz (1992) 3 Cal.4® 495oceecsesssseesssecsneecssesssessesssueesecneenseentennsesnee 14,15 People v. Diaz (2013) 213 Cal.App.4743. ..ccsssssssesescneenerseesessnessneeseesessesenes 26 People v. Doolin (2009) 45 Cal.4th 390 w..cessssssseessneenseesnseenseesveneeseesensaneenensssneey 12, 13 People v. Ernst (1994) 8 Cal.4% 441 o.ccsssesssessssesscssesserencnessnsssnsesneseneensanensnen 20, 22 People v. Evanson (1968) 265 Cal.App.2d 698 wiscseseccsereesssssecnsesnessssessieensesans 8,9 People v. Farnam (2002) 28 Cal.4 107 vessssescssecnseneeseesnssneseenessessnissneess 49, 50 People v. Forrest (1967) 67 Cal.2d 478 .ccsscsecsseecsecnseseenesseesssssssssssessssesnsansessssseanes 25 People v. Gallego (1990) 52 Cal.3d 115 ..escseessesssesreesscnessenssnnsarssesssssseeseesteeeennss 48 People v. Gastile (1988) 205 Cal.App.3d 1376...ssesssssssesseeseceeneesseseseeseeessiens 21 People v. Granger (1980) 105 Cal.App.3d 422 .vsecsecssssnesssesssnesseessssseenensneees 16 People v. Gutierrez (2002) 28 Cal.4t 1083 ..seeccsessnsecerssessnessteenseareessenssnssseesy 32, 37 People v. Harris (1950) 98 Cal.App.2d 662 vrecssesecssecrernessereseesssressssssnnenns 24 People v. Hayes (2009) 171 Cal.App.4549 vce cscsecsesnessesssnsensenessssenseseneenseness 25 People v. Hill (1998) 17 Cal.4t 800 ...scscssescsssscsseseccnsersneeesnseenneeaneestesesniessneesaeassnesey 29 People v. Hines (1997) 15 Cal.4th 997... esssesssseesserseeersnessnneeensenasesnnen 32, 36, 37, 39 TABLE OF AUTHORITIES Page(s) People v. Holmes (1960) 54 Cal.2d 442...eccssseccssessssssssessessnessseensesssnneessnesnneensees 20 People v. Hovarter (2008) 44 Cal.4% 983 .ecscssseccsssessnserssesssenssersseessees 11, 17, 18, 19 People v. Howard (1930) 211 Cal. 322 .eeesecccsssesssserssesessneessasensssesssssessssneessnrensnses 2 People v. Tboa (2012) 207 Cal.App.4® 111 wesssesssescsssessssesseesseeseesnnessnneen 37, 39 People v. Jackson (1996) 13 Cab.4® 1164 iccssessccesssssssesessseessneensssanessssnneenssneeee 27 People v. Jobnson (1992) 3 Cal.4% 1183 vescsseecsccssseecsseeessiesssssesessnessesseesssseessaneeney 46 People v. Keenan (1988) 46 Cal.3d 478 ...ccssssccssssecsssseesssesssseessssesnesennsneesssneessnensens 46 People v. Kipp (2001) 26 Cal.4% 1100 ...essssecccssssesesseessssessnneensseesnseessneeeen 33, 34, 47 People v. Lacefield (2007) 157 Cal.App.4249 .sssssessesssssssssessneeesssseesssnessanesens 32 People v. La-Grande (1979) 98 Cal.App.3d 871 ..ssssessssesssssesessneessssnesessssntensennees 25 People v. Lancaster (2007) 41 Cal.450...eesccssssssssessssenssnsessneeeneessssnssssneessntensane 27 People v. Lew Fat (1922) 189 Cal. 242... ccssscccssssssssesssessnseersnesssseesssnessnsneeneareteny 44 People v. Lewis C Oliver (2006) 39 Cal.4® 970 wscessessssersseecseecssesnssnssessnneernneensaes 42 People v. Lewis (2001) 25 Cal.4610 ...ssesccsssssssccsnsesssnsessnssenssesnsssnseesssnaeensnnsesens 48 People v. Lewis (2008) 43 Cal.4415 oc eecseessssssssssessessseesneesssesssenssenssnessnesnes 21, 26 People v. Lookadoo (1967) 66 Cal.2d 307 wr sesssssessssessseessneessnesssseessnsecssnrersaneenny 6,7 People v. Martin (2005) 133 Cal.App.4776 ...sssssecsssssssesssseessseennessssnssecssneessnenniss 39 People v. Massie (2006) 142 Cal.App.4% 365 .sssesssssssssessseeesnsessnesssseneessnieesnnesnnees 24 People v. McCullough (2013) 56 Cal.4® 589 .....ssssesssssesseenssseessessssesssnasesnneersnsennnee 42 People v. McKinnon (2011) 52. Cal.4610...esccssssecsseesssesssssensessnsessnsnsenssnsensnsersese 23 People v. Melton (1988) 44 Cal.3d 713 ..ecssccccssssesscsssssssssessseeessneessnssssesssnsenssaneeneny 48 People v. Memaro (1985) 38 Cal.3d 658... scsecssssssresssessnessnessnessneen 14, 16, 19, 20 People v. Miller (1972) 7 Cal.3d 562 crccssssesscseessssseesesssneeesensneesssssesssssessnnacsenennseeteny 7 People v. Mills (1978) 81 Cal.App.3d 171 .sssssesssssssssneesssnesssesssnneersanenen 43, 44 People v. Montiel (1993) 5 Cal.Ath 877 ..sssecsssssssesecssieessssescssneenssesssnnnnssennnnenssaneteny 34 People v. Moreno (1991) 228 Cal.App.3d 564 ...sssessssesssseccrssesssessnsesssnesrseecnnsernnes 21 People v. Murtishaw (1989) 48 Cal.3d 1001...sssssssessessseessessssnsesssneennneesneenneeny 44 People v. Nelson (2011) 51 Cal.4198 oo. sesssssssessssecssssessseesseeesnesnsnnnesscnneesnnseesens 26 People v. Nishi (2012) 207 Cal.App.4t 954 vvssssesssescsssessssnsessseessssneressnnenssenteneey 32 People v. Oliver (1987) 196 CalApp.3d 423 vsssecssssecsssescsssecsnseesssnneeesenennsarsssnies 3 vi TABLE OF AUTHORITIES Page(s) People v. Pearson (2013) 56 Cal.4t 393 v.ecssescsssessesssssessssssensenrenessteentecsesenessecenennes 26 People v. Pinholster (1992) 1 Cal.4t 865 ...scssscsesssssssscsseseensersseseeseatessscensenseenssnnsense 35 People v. Richardson (1934) 138 Cal.App. 404... csscssssneccsecsseensersnnessensessnnssnsiassens 4 People v. Robertson (1989) 48 Cal.3d 18....sssssescssesecnsensssneensesensesnseessesssies passim People v. Rodrigues (1994) 8 Cal.41060 .....ssssssssesssessesssescneerneecsssenneessarsssnresssesses 35 People v. Rumyan (2012) 54 Cal.4849... cecssssssssssssessessnsessensenennsernecsneensenesseesenss 43 People v. Scott (1997) 15 Cal.4® 1188 v.scsscssessseccnseseesscnserssseenssenennsssnsssssssensnesnisness i1 People v. Silva (1988) 45 Cal.3d 604 ..ccesssecssseesssersessseseesneestsasssseenscesnsensecnseesseney 35 People v. Smith (1983) 34 Cal.3d 251 cscsescsssesecssessessneseenssessecssseneersnerssiessneens 33 People v, Spencer (1967) 66 Cal.2d 158 «..rscssssecsssecseecneecsserseeneersessnrsesnnessnenssnesans 26 People v. Superior Court (Anderson) (1984) 151 Cal.App.3d 893...eens 35, 37 People v. Taylor (2010) 48 Cal.4% 574... ccssessssssssssenssesneesserseenssensensecsetscnneenseeses 23, 32 People v. Thomas (2012) 54 Cal.4% 908.....ssssssescsseceeseeneeeneatserseeenissenessessniessetes 30 People v. Tijerma (1969) 1 Cal.3d 41 .ececcsesssssessecssesnseseesnseneessenecssrensneessecssessecssnes 7 People v. Traugott (2010) 184 Cal.App.4t 492 ....ssssssesssecneesneesteesnnessencsssssessseaseen 2 People v. Tuilacpa (1992) 4 Cal.4% 569....cssssscsecseecsecesseensceessneneenersneey 35, 36, 46 People v. Tully (2012) 54 Cal.4952...ecsessssessersecrscseeaneneresersersaesssssnesessasensenss 42 People v. Turner (1990) 50 Cal.3d 668 ...ssesssssssssssesssesssecnseesrenneecntecsnessarsesnessneetss 46 People v. Vera (1997) 15 Cal.4t 269... csssesssssssscsneesesterseenennesseersarersrerseassuseesnenans 43 People v. Wader (1993) 5 Cal.4610.....cscsssesssseesserseeceesseeneenseensessessnesssnesnesseeseness 46 People v. Walker (1988) 47 Cal.3d GO5...ssscssesssescsesseensessenscensesserssensseesunenniessenes 37 People v. Watson (1956) 46 Cal.2d 818.....cscssecsessennsenscnsecnsensenrsssaresssesaseses 21, 25 People v. Weaver (2012) 53 Cal.4 1056 ...sesessessecsrennsensenreeseessssensstessncenne 9,14, 15 People v. Williams (2010) 49 Cal.4405 ...cssessessssecsseecnsersserscenseenssssnresssessssessnecsens 35 People v. Wrest (1992) 3 Cal.4% 1088 .....esssssesssecssscssssenesstsenesssersesensvensseessenes 2,3, 15 People v. Wright (1990) 52 Cal.3d 367 .esssesssssssscsssecseesnsecneesseecnsscnteecanesenecesaressnesens 49 People v. Yeoman (2003) 31 Cal.4% 93...cccsesssscrseeseesseesnscneesieeseeseesssessansanessnisaniney 43 Constitution US. Const, 6 Amend,.ccscseceeerstssstsssseesesssesenssssesesesessssessesessenensenses 17, 18, 21 US. Const., 8% Amend...ceseccsseseessensscessssssssrsesessesensesceseesesesessasessenseses 18, 44 vil TABLE OF AUTHORITIES Page(s) U.S. Const, 14% Amend. ..ccsesssesessessssssssssessesssessseessessessesessesseaseses 18, 19, 44 Statutes Evid. Code, § 353 cscssssssssssssssessecesssesessessnseseesssensensssssessnscnseneensenssnsenensensastaeaneaneas 44 Pen. Code, § 69 viscccssssssesssssssssessesesseesesssessesssersesssssesesensensssscesaesntensseseneasens passim Pen, Code, § 71 .ssssssssesssssssssssssssssssssessesssescasesseeessesesseneassssensssssnenseneeneasensnsensens 36 Pen. Code, § 190.3 cssccessnssessssssessssesssssseseseessssessseesssnesesssssssseserseneensensens passim Pen. Code, § 190.4. .sscsessessssrsssvessesssesssssssesseesseeseeseesssssesssssseaecssesnesrensenneens 17, 18 Pen. Code, § 422 eescesssessssssesssssesssssssssssesssenesssesnssneesseseesecessessesseenssaesneenseatenneeey 34 Pen. Code, § 4502... esessesssssessessssssessssssnssssssvsssessessesssseseaneesessnesnsesseenenes 23, 24, 25 Pen. Code, § 4574 vessssessecssessesssssesssssssssssssessessessssssssnssnescssseseesnescenesessneeaseneess 23, 24 Other Authorities American Heritage Dictionary (4% ed. 2006) .....sssecsssenseeseneesteseeeensatensstentenes 24 Babcock, A UnanimousJury Is Fundamental to Our Democracy (1997) 20 Harv. J.L. & Pub, Poly 469 wicseesseesseesssssesssesscenessneessessseenneenneceneenseenseeneees 11 Cal. Judges Benchguides, Death Penalty Benchguide: Penalty Phase and Posttrial, Benchguide 99 (CJER 2011 rev.) ....csessessessensenteessnseteaseneneeneess 18 Comment, Jury Unanimity in Calkfornia: Should It Stay or Should It Go? (1996) 29 Loy. L.A. L.Rev. 1319 vvesscsssssseessessessesnsesscnnesneensesseensesasententenneeneey 4 Gross, Pretrial Incentives, Post-Conviction Review, and Sorting Criminal Prosecutions by Guilt or Innocence (2012) 56 N.Y.L. Sch. L.Rev. 1009... 12 Laneet al, Too Big a Canon in the President's Arsenal: Another Look at United States v. Nixon (2010) 17 Geo. Mason L.Rev. 737 .ssssesesseeeesenee29 Note, Right to a Jury Trial (2011) 40 Geo. LJ. Ann. Rev. Crim. Proc. 55D aacsssesssesesssssssssnesnesscsneescsssnecueaseseearssvesssscsessssesssesescesesessssesesseaveseaneeneacenenensansey 5 Robbins, Toward a More Just and Effective System ofReview in State Death Penalty Cases, Report ofthe American BarAssociation's Recommendations Concerning Death Penalty Habeas Corpus (1990) 40 Am.U. L.Rev. 1...45 Thomas, Nonincorporation: The Bill ofRights After Mcdonald v. Chicago (2012) 88 Notre Dame L.Rev. 159... ssseecnsessensennseneeneeniennsssnesresnennnesesesienss 19 Witkin & Epstein, Cal. Criminal Law (4% ed. 2012) n.eecesesneereeneeseien 4,13 Witkin, Cal. Procedure (5% ed. 2008)....ccsssssssseeseersssenesesesnsssseeessersesesensesenenes 13 vill IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE STATE OF CALIFORNIA, No. S078895 Plaintiff and Respondent, (Fresno Superior Court Vv. No. 590200-2) VAENE SIVONGXXAY, Defendant and Appellant. APPELLANT’S REPLY BRIEF INTRODUCTION Appellant and codefendant Oday Mounsaveng, both Laotian nationals, were convicted in 1999 of a string of commercial store robberies in Fresno County, culminating in the shooting death of Henry Song. Mounsaveng was sentencedto life without the possibility of parole; appellant was sentenced to death. In this brief, appellant addresses certain contentions made by respondent,but does notreply to arguments which have been adequately addressed in the opening brief. The absence of a reply on any particular argumentor allegation made by respondentandthe failure to reassert any particular point made in appellant’s opening brief do not constitute a concession, abandonmentor waiver of the point by appellant, but indicates that the issue has been joined.1 1. The numbered arguments in this brief are consistent with those contained in Appellant’s Opening Brief (“AOB”) and Respondent’s Brief Footnote continued on nextpage... ARGUMENTS 1. APPELLANT WAS DENIED HIS FUNDAMENTAL CONSTITUTIONAL RIGHT TO A TRIAL BYJURY A. Appellant’s Putative Waiver of His Right to Trial by Jury at the Guilt Phase Is Invalid Appellant wastried and sentenced to death by a judge, not by a jury of his peers. In a one-page monologue,thetrial court informed appellant(in respondent’s words) that he hada right to a jury trial of 12 people selected in a process that involved defense counsel, the prosecutor, and the trial court, and that, if the prosecutor proved guilt beyond a reasonable doubt, the case would proceed to a penalty phase. (RB 38.) When thetrial court asked whether appellant would “give up” his right to a jury trial, he responded, “Yes.” (6 SRT 904; AOB 36-48.) That is the extent of the record on the waiver of appellant’s rightto trial by jury; there was no written admonishment. The record does not show that appellant was awarethat the right to a unanimous and impartial jury is an essential element or fundamental attribute of the rightto trial by jury under state and federal law. 2 Theissue on appeal, (“RB”). All statutory references made herein are to the Penal Code, unless otherwise stated. The record on appealis designated herein as follows: “SRT”refers to the reporter’s transcript; and “CT”refers to the clerk’s transcript. 2. See Irvin v. Dowd (1961) 366 U.S. 717, 722 [right to impartial jurors]; Patton v. United States (1930) 281 U.S. 276, 288 [the essential elements oftrial by jury include 12 persons and a unanimousverdict]; In re Boyerte (2013) 56 Cal.4* 866, 888 [right to impartial jury]; People v. Wrest (1992) 3 Cal.4% 1088, 1104-1105 [The record contains a complete description of the essential elementsofjury trial as conveyed to appellant’); People v. Collins (1976) 17 Cal.3d 687, 693 [‘the essential elements ofthe rightto trial by jury” include the right to a unanimousverdict by 12 persons]; Peopk v. Howard (1930) 211 Cal. 322, 324-325 [same]; People ». Traugott (2010) 184 Cal.App.4® 492, 500 [the essential elements of the fundamental right to a jury trial under the California Constitution include a unanimousverdict]; People v. Okver (1987) 196 Footnote continued on nextpage... -2- then, is whether a waiver of the right to trial by jury is valid when the record does not show that the accused was aware ofthefull nature of thatright. Thatissue is reviewed de novo. (See United States v. Carmenate (2d Cir. 2008) 544 F.3d 105, 107; United States v. Duarte-Higareda (9% Cir. 1997) 113 F.3d 1000, 1002.) The answerto that question is plainly no. A waiver of the right to trial by jury is not valid unlessit is “made with a full awareness both of the nature ofthe right being abandoned and the consequencesofthe decision to abandonit[.]” (People v. Collins (2001) 26 Cal.4* 297, 307; see also Patton »v. United States, supra, 281 U.S. at p. 312.) Such a waiver must be notonly knowing andintelligent, but also “self-protecting.” (Adams v. McCann (1942) 317 U.S. 269, 275, 278.) Moreover, there must be “evidence in the record” showing that the accused wasfully aware of the nature of the right and the consequences of the decision to abandon it. (People v. Collins, supra, 26 Cal.4% at pp. 305-306 & fn. 2; see also Adams v. McCann, supra, 317 U.S.at p. 281, People v. Wrest (1992) 3 Cal.4 1088, 1103.) Here, the record does not show that appellant was aware of the right to a unanimousand impartial jury. As the record does not show that appellant was awate of the full nature of the right, his putative waiver is invalid under state and federal law. (See Adams». McCann, supra, 317 US.at p. 281; United States v. Shorty (9% Cir., Dec. 20, 2013, No. 11-10530) __ F.3d __ [2013 WL 6698061, *3] [failure to inform the defendantof the unanimity requirement]; People v. Wrest, supra, 3 Cal.4% at p. 1103.) Thetight to a unanimous and impartial jury cannot be deemed merely part of the “ins and outs”of the right to trial by jury, as respondent appears to Cal.App.3d 423, 431, fn. 3 [“the essential elements of the right to trial by jury under the California Constitution also include the requirements that a jury in a felony prosecution consist of 12 persons and thatits verdict be unanimous.”].) 3. suggest. (RB 37, 49.) The concept of “trial by jury” is not self-evident. It has meaningonly be reference to the fundamentalattributes identified above: numberofjurors, impartiality and unanimity. (See People v. Richardson (1934) 138 Cal.App. 404, 408-409; 5 Witkin & Epstein, Cal. Criminal Law (4% ed. 2012) § 511, p. 784 [The Constitution assures the essentials of a commonlaw jury trial in felony cases, and these, not subjectto legislative or judicial curtailment, are (a) the numberof jurors, (b) impartiality of the jurors, and (c) unanimity of the verdict”].) Fundamentalattributesof the right that have existed since the founding of our country and California’s passage into statehood (see Apodaca v. Oregon (1972) 406 U.S.404, 407-408 (plur. opn.); In re Hitchings (1993) 6 Cal.497, 110; Comment, Jury Unanimity in California: Should It Stay or Should It Go? (1996) 29 Loy. L.A. L.Rev. 1319) can hardly be treated as partof the “ins and outs”of the right. They are therightitself. When an accused is weighing whetherto betried by a judgeor a jury, the record must reflect that s/he was fully aware of these attributes before a court can deem any waiver to be truly knowingandintelligent. Where the record does not show that the accused was aware of those fundamental attributes, the presumption against the waiver of fundamental constitutional rights applies: courts must “indulge every reasonable presumption against waiver of fundamental constitutional rights” (Johnson ». Zerbst (1938) 304 U.S. 458, 464, internal quotation marks omitted), and any doubts arising from a defective record mustbe resolvedin favor of the accused (Carnley v. Cochran (1962) 369 U.S. 506, 516; Boykin v. Alabama (1969) 395 US. 238, 242-243). Moreover, where, as here, there was no written waiver or admonishment, a jury waiver “is subject to greater scrutiny.” (United States v. Shorty, supra, __ F.3d. ___ [2013 WL 6698061, *4].) Thetrial court’s monologue, when subjected to that scrutiny and the applicable presumptions, is manifestly deficient in imparting to appellant the full information that he required before effectuating a knowing andintelligent waiver ofhis right to 4. trial by jury. Thete is no a question here of imposing a “litany” (a tedious or lengthy recitation) on thetrial court. Less than 10 words were required to ensure that appellant was aware that he had theright to an impartial and unanimousjury. What is necessary, and whatis missing in this case, is not a litany, but rather a record showing that appellant was aware ofthe full nature ofthe constitutional right that he purportedly chose to forego. Respondent’s main contentionis that a trial court has no duty to inform an accused ofthe nature and consequences of a jury waiver where the accused is represented by counsel. Where a criminal defendantis represented by counselandfails to show thateither he or his counsel has been misled as to the result that might occur from waiving a jury trial, the trial courtis not required to explain to that defendant the nature and consequencesof his action of waivinga jury trial. (RB 36.) In other words, respondent contends that a record that is inadequate to establish a valid waiver of a fundamental constitutionalright is unnecessary where the accused has counsel. The unstated presumption is that defense counselwill always inform the accused of the information that is required by state and federal law to establish a valid waiver. Respondent’s contention is flawed in a numberof respects. 3 First, the 3. Respondent’s argumentis directed at absolving the trial court of any duty “to explain to [the] defendant the nature and consequencesofhis action of waiving a jury trial.” However, state and federal law do notnecessarily impose that duty upon thetrial court. The accused must be aware of the nature of the right; but that awareness may be impartedbythetrial court or trial counsel on the record, ot in a written advisement. (See United States v. Lilly (3d Cir. 2008) 536 F.3d 190, 197-198; Note, Right to a Jury Trial (2011) 40 Geo. LJ. Ann. Rev. Crim. Proc. 559, 565, fn. 1675 [noting a circuit split regarding whethera colloquy between the judge and defendant is mandatory].) There is no doubt, however, thata trial court’s duty under both state and federal law is to ensurethat the record reflects a knowing, intelligent and Footnote continued on nextpage... _5- contention is contrary to federal law. In Adams v. McCann, supra, 317 US. 269, the high court stated that “whether[the accused] had the advice of counsel”is relevant to the determinationofthevalidity of a waiver. Thatis, while the presence of competent counselis relevant, not dispositive. (Id. at p. 277.; see also United States v. Shorty, supra, __ F.3d. __ [2013 WL 6698061, *5].) Further, respondent’s contention that representation by counsel suffices to establish a valid waiveris contrary to the requirement that “he record must show that a waiver ofthe rightto trial by jury was made with a full awareness ofthe nature ofthe right and the consequences of abandoning it. (Adams v. McCann, supra, 317 US.at p. 281; People v. Collins, supra, 26 Cal.4% at p. 307.) And,it is inconsistent with the above-mentionedrule that courts must “indulge every reasonable presumption against waiver” a fundamental constitutionalright (Johnson v. Zerbst, supra, 304 U.S. at p. 464), and that any doubts arising from a defective record must be resolved in favor of the accused (Carnkey v. Cochran, supra, 369 US. at p. 516; Boykin v. Alabama, supra, 395 U.S. at pp. 242-243). Second,the cases cited by respondentare distinguishable because each involves more than the mere presence of counsel: in each, there was a colloquy, written admonishment,or statement by defense counsel on the record that established a valid waiver. For example, in People v. Lookadoo (1967) 66 Cal.2d 307,cited by respondent (RB 36), this Court concludedthat: [T]hetrial court in a criminal case is not required to explain to a defendant the nature and consequencesofhis action in waiving a jury trial where heis, as in the case at bar, represented by counsel andfails to show thateither he or his counsel has been misled as to the result which might occur from his waiving a jury trial. protective waiver. (See Adams v. McCann, supra, 317 U.S. at p. 281; Patton v. United States, supra, 281 U.S.at pp. 312-313; People v. Collins, supra, 26 Cal.4at pp. 308-309.) (Id. at p. 311.) However, the record in that case showed a lengthy colloquy (more than 1,000 words as opposedto the 185 words here) between the court and the defendantregarding the nature ofthe rightto trial by jury. (Id. at pp. 311-313 & fn. 1) Further, the defendantspecifically stated that he had spoken to his attorney and understoodthe right. (Ibid) This Court has notcited Lookadoo in many years on this point, but in Peopke v. Miller (1972) 7 Cal.3d 562, the Court described the dispositive facts in Lookadoo as going beyond the mere presence of counsel: not only was the defendant “represented by counsel,” according to Miller, he also “benefited from a detailed examination bythetrial court into the nature and consequences”of the proposed jury waiver. (Id. at p. 567.) The sameis true of Peopk v. Tierna (1969) 1 Cal.3d 41, also relied upon by respondent. (RB 37.) The issue in that case was whether a jury trial waiver was invalid where the defendant was not advised thata jury’s verdict must be unanimous. Answering that question in the negative, this Court reasoned: Defendant was represented by an attorney at both the preliminary hearing and atthe trial, and he was carefully questioned before his waiver of a jury trial was accepted. He stated that he knew whata jury trial was, and he was also told that “That is when twelve people sit over here in the box and hearall the evidence.” Under these circumstances, the court was not required to explain further to defendant the significance of his waiver of a jury trial. (Id. at p. 45, footnote omitted.) 4 Again,the dispositive facts are that the 4. In People v. Robertson (1989) 48 Cal.3d 18, a case involvingthe failure of the trial court to explain to the defendant the consequencesofa jury deadlock in a capital case, this Court concluded: Defendant was represented by two apparently competent counsel who overthe course of several days discussed with him “at length” the consequences and nature of his proposed waiver. Absent an assertion or evidence to the contrary, we Footnote continued on nextpage... -7- defendant wascarefully questioned aboutthe jury trial waiver and stated on the record that he was aware of the nature of his right. Respondentalso reads Peophe v. Castaneda (1975) 52 Cal.App.3d 334, 344 as holding that “no specific formula or extensive questioning required”for a valid waiver. (RB 36-37.) Appellant agrees. But in that case there was a colloquy during whichthe trial court explainedthe rightto trial by jury (“there are twelve people on a jury.... It would be necessary for all twelve to agree before you could be found guilty”); the defendant personally stated that he did not wanta jury; and defense counsel stated on the record that he had spent “between one and two hours” discussing the matter with his client. (Id. at pp. 343-345.) With respect to People v. Evanson (1968) 265 Cal.App.2d 698,also cited by respondent (RB 36,38-39), the defendantclaimed that the trial court was tequited to provide him with “full advice concerning his rights and ascertaining through a procedure comparable to that required for an effective waiver of counsel that the waiver was competent.” (Id. at p. 701.) The lower court rejected this argument, stating: [W]here a defendantis represented by counselit is to be expected that counsel will intentionally refrain from asserting, or advise waiver of, certain constitutional rights from time to time in his choice of defense tactics. It is not necessary that wheneversucha tactical waiver occurs the court interrupt the proceedings to advise defendant of the right presumethat competent counsel would have informed defendant of the effect of a jury deadlock. (Id. at p. 36.) The information missing from the record in Robertson -- the consequencesof a jury deadlock in a capital case -- is not part of the essential elements oftherightto trial by jury. In appellant’s case, the issue concerns indisputable, essential elements of that right. In any event, in Robertson, counsel discussed the right to trial by jury at length with the defendant. The record in appellant’s case lacks that crucial fact. _8- which is to be waived and question him to ascertain whether the waiver is made with full appreciation of the consequences. (Id. at pp. 701-702.) Defense counsel in Evanson stated on the record that he had explained to the defendant “his constitutional rights to a jury trial,” and “the nature of a criminal case,” and that the defendant understoodhisright. (Id. at p. 700.) That in itself was sufficient to establish a valid waiver. But the court also reasoned that “the waiver of a jury peculiarly involvestactical considerations which the defendant himselfis ill equipped to appraise.” (Id. at p. 702.) In this regard, Evanson is a relic because both state and federal courts now recognizeprecisely the opposite: the decision whether to waive a jury is of such importance and momentthat it can only be made by the accused. (See Florida v. Nixon (2004) 543 U.S. 175, 187; In re Wiliams (1969) 1 Cal.3d 168, 177, fn. 8.) As it is the accused who must make the decision regarding whether to forego this fundamental constitutional right, it is the accused who must be aware ofits essential elements or fundamentalattributes. Finally, respondent avers that the advisements given in this case were “far more detailed”than those given in People v. Weaver (2012) 53 Cal.4% 1056, wherea jury waiver was upheld. (RB 39.) Not so. The advisements given in Weaver differ profoundly from those given here. The defendant in Weaver executed ‘wo separate written waiverforms regarding the right to jury trial; the trial court explained a numberof differences between a courttrial and a jury trial, including: “if you havea jury trial... you have an absolute right to have the jury be unanimous. Meaningthat all 12 jurors would haveto agree to a decision.” Further, the defendantstated on the record that hes attorney hadfully explained to him the terms “jury trial” and “courttrial,” and the difference between the two. Following the guilt phase, he signed a written waiverhis right to a jury. The courtstated that it would permit either side to withdraw its waiver of the right at the penalty phase, andcalled a recess to permit the defendant to consult with his attorneys and reconsider his decision. (Id. at pp. _9. 1070-1071.) Noneofthesefacts is presentin this case. Thus, respondent’s contention that the advisements given in Weaver were “far more detailed” than those given here is 180 degrees from thetruth. Thesalient circumstances present in the cases discussed above ate notably absent in this case: there was no lengthy colloquy, only a short monologue; there was no written admonishment; appellant wasnotcarefully questioned, or questioned atall; he did not state that he understood the right to trial by jury or make any statement; and his counsel was not questioned and did not aver that he had discussed the matter with his client. Third, respondent’s contention -- that the mete presence of counsel suffices to find a valid waiver notwithstanding a defective record -- is at odds with the requirementthat a court must consider the unique circumstances of each case, “including the background, experience, and conduct ofthe accused” in assessing the validity of a waiver of a fundamental constitutional right. (Johnson v. Zerbst, supra, 304 U.S. at p. 464; see also Adamsv. McCann, supra, 317 USS.at p. 278.) The unique citcumstances in this case includethe fact that appellant wasa limited English speaker, uneducated adult immigrant from an impoverished, war-torn, communist-dominated country with no recent history of freedom andindividual rights (Laos). Appellant’s language andcultural bartiers are salient facts that were knownbythetrial court and put the court on notice that appellant’s waiver “might be less than knowingandintelligent.” (United States v. Duarte-Higareda, supra, 113 F.3d at p. 1003; see also United States v. Leja (1st Cir. 2006) 448 F.3d 86, 94; United States v. Mendez (5 Cir. 1997) 102 F.3d 126, 129-130.) A trial court cannot reasonably assumethat an immigrant’s understanding of the American jury system is on par with a citizen steeped in the traditions of this country: “Thecriminaljury, right or wrong, is one of our mostprecious and characteristically American institutions. There is nothinglike it anywhere else in the world.” (Babcock, A UnanimousJury Is Fundamental to Our Democracy (1997) 20 Harv.J.L. & Pub. -10- Pol’y 469, 473.) There are other unique circumstances here that should have put the trial court on notice that appellant’s one-word response wasless than a knowing and intelligent waiver. This Court has concluded that where the record shows that the defendant discussed the decision with counsel and relied on counsel’s advice, that fact strengthens the waiver’s validity. (Peopse v. Scott (1997) 15 Cal.4 1188, 1209.) In this case, there is no indication in the trial court’s monologue (or anywhere in the record) that appellant discussed the decision with counsel. Noris there anything in the record showing that the purported waiver was based ontrial tactics to obtain some advantage for the accused. (Cf. In re Scott (2003) 29 Cal.4 783, 828-829 [trial counsel had valid tactical reason for advising client to waive a jury]; Peop/e v. Hovarter (2008) 44 Cal.4th983, 1024, fn. 17 [“counsel assured the court that the decision to waive a jury was not madelightly and that they had tactical reasons for doing so”; People v. Robertson (1989) 48 Cal.3d 18, 36-37 [counsel “expressed on the record their soundtactical reasons for advising defendant to waive a jury and consenting to the waiver’’].) Finally, waiver of the rightto trial by jury in a capital case is one ofthe most important and difficult decisions that a defendant must make. Accordingly, in such cases the degree of caution whicha trial court must exercise in accepting a jury waiveris at its apogee. (Patton v. United States (1930) 281 U.S. 276, 312-313.) Thetrial court’s brief, translated monologue in this case fails to meet this standard: no questions were asked of appellant or defense counsel, and the courtfailed to inform appellant fully of the fundamental attributes of the right to trial by jury. Thus, contrary to respondent’s contention, a court cannotstopat the fact that counsel waspresent in assessing the validity of a purported waiver of the fundamental constitutionalright to trial by jury. Where there are unique circumstances indicating that a waiver of that right might be less than knowing -11- andintelligent, the record must show thatthe defendant wasfully informed of the right, and understood the benefits and burdens foregoingthat right. In sum, an assumption that competent counselwill explain to his or her client the “ins and outs” ofa jury trial versus a bench trial is reasonable because the vast numberof defense attorneys perform competently andadvise their clients concerning their constitutional rights. (See People v. Robertson, supra, 48 Cal.3d at p. 36.) But such a presumptioncannotbe permitted to supplantthe basic requirementsfor a valid waiver of a fundamental constitutional right: a record showing a knowing and intelligent decision by the accused; that is, a decision made with a/u//awareness ofthe natureof the right being abandoned and the consequences of abandoningit. Assuming arguendo that the mere presence of counsel can establish a valid waiver of a fundamental constitutional right despite a defective record,it would be unreasonable to rely upon that rule where, as here, there are serious doubtsas to the competence or undivided loyalty of the accused’s counsel. (See People v. Robertson, supra, 48 Cal.3d at p. 36 [presumingthat counsel would inform the defendantof certain information “[a]bsent an assertion or evidence to the contrary’’].) In this case, defense attorney Rudy Petilla represented appellant several months after he represented the defendant in People ». Dookn (2009) 45 Cal.4% 390, undera flat-fee agreement in Fresno County. In Doosan, this Court recognized that an attorney whoreceives a flat fee in advance may have a “conflicting interest” to dispose ofthe case as quickly as possible. (Id. at p. 416.) As jury trials are “famously” time consuming and expensive for an attorney (Gross, Pretrial Incentives, Post-Conviction Review, and Sorting Criminal Prosecutions by Guilt or Innocence (2012) 56 N.Y.L. Sch. L.Rev. 1009, 1023), a waiver of the rightto trial by jury would perforce expedite the case. In Doolin, this Court understandably concluded that the vast majority of attorneys “are not so unethical as to neglect their clients’ interests to advance their own.” (People v. Doolin, supra, 45 Cal.4" at p. 416.) Such _12- malfeasanceis the exception, not the rule. However, there are suggestions that this case involves the exception. 5 Appellant does notraise a conflict of interest claim or an ineffective assistance of counsel claim in this appeal; any such claims must await the appointmentof habeas corpus counsel. (See Doolin, supra, at p. 429 [defendant has the opportunity to expand upon the record in the context ofhis right to pursue a writ of habeas corpus”].) He has set forth the information above to support his argumentthat respondent’s contention regarding the presence of counsel, whateverits merits in other cases may be, should not apply where,as here, there are some doubts concerning counsel’s undivided loyalty to his client’s interests. In this case, those doubts, combined with thefact that there is nothing in the record showing that counsel discussed with appellant the nature oftherightto trial by jury andthe likely consequencesofits waiver, should cause even the most forgiving to pause before applying respondent’s one-size-fits-all presumption. Given that the record fails to show that appellant was fully awate of the fundamental attributes ofhis rightto trial by jury and the consequences of waiving that right, the absence of a written waiver, and the unique 5. In 1997, the year that he was appointed to represent appellant, two separate unpublished opinions concludedthat Mr. Petilla intended to defraud creditors in connection with a bankruptcyfiling stemming from his gambling debts. (Petilla v. Bank One LaFayette (9% Cir., Aug. 25, 1997, No. 96-17317) 122 F.3d 1073; Petila v. First Card NationalBank (9% Cir., June 3, 1997, No. 96- 17037) 116 F.3d 485; see also Farm Raised Salmon Cases (2008) 42 Cal.4 1077, 1096, fn. 18 [A party is permitted to cite unpublished federal opinions].) In 2001, the Review Departmentofthe State Bar concluded, based on the federal fraud cases, that Mr. Petilla had committed acts involving moral turpitude and dishonesty, and described his conductas “at worst, akin to embezzlement and, at best, akin to abusing one’s position oftrust for personal gain.” (Master of Petilla (Rev. Dept. 2001) 4 Cal. State Bar Ct. Rptr. 231, *1, *17.) Copies of these opinions are attached hereto. Mr. Petilla’s State Bar caseis cited in Witkin under the meaning of “moral turpitude” in attorney disciplinary proceedings. (1 Witkin, Cal. Procedure (5 ed. 2008), § 481, p. 598.) -13- circumstances of this case, the state has not shown that appellant’s purported waiver was knowing andintelligent. Appellant’s putative waiverof that right at the guilt phase is invalid. B. The Putative Waiver of the Right to Jury for the Special Circumstance Determination Is Invalid In People v. Memro (1985) 38 Cal.3d 658, 704, this Court held that “an accused whosespecial circumstance allegations are to be tried by a court must make a separate, personal waiver ofthe right to jury trial.” In Peopk v. Diaz (1992) 3 Cal.4th 495, the Courtclarified that the special circumstance waiver need notbedistinct in time, but that “the record must show that the defendant is aware that the waiverapplies to each of these aspectsoftrial.” (Id. at p. 565, emphasis added.) Respondent’s concedes that a “[w]aiver of a defendant’s right to have a jury determinethetruth orfalsity of an alleged special circumstance must be made by the defendant personally and mustbe ‘separate’ in that the record must show the defendantis aware the waiver applies to both the guilt and the special circumstances.” (RB 47-48.) Here, the trial court did not mention the special circumstance in its monologue: the court only stated that it would decide appellant’s “guilt beyond a reasonable doubt,” and then immediately began speaking of the penalty phase. (RB 35.) Respondentattemptsto fill the void with the trial court’s statement that it “alone, will make those decisions”: The trial court’s statementin the present case that “this Court, alone, will make those decisions” (6 SRT 905) is also similar to the waiver in Weaver, which included “all triable issues before the court.” (People v. Weaver, supra, 53 Cal.4% at p. 1075.) (RB 43.) That contention is grossly misleading. In this case, the meaning of the trial court’s reference to “those decisions” can only be discerned by reading any preceding statements that refer to its decisions. And those preceding statements make wo mention ofthe special circumstance,either -14- explicitly or impliedly; they refer solely to the determination of guilt. (6 RT 903-904.) In Weaver, on the other hand, the trial court’s “all triable issues” statement was accompanied byspecific references to the special circumstance. (People v. Weaver, supra, 53 Cal.4at pp. 1070-1071, 1075.) The court in Weaver twice explained that before the case could proceedto the penalty phase, findings would be required on “a special circumstance[.]” (Id. at pp. 1074- 1075.) Thus,when a trial court mentions the special circumstance determination andrefers to “all triable issues,” it may be presumed that the defendant understood the connection between the two. (Id. at p. 1075.) Here, ceit is unreasonable to connectthe court’s “those decisions” statement to the special circumstance determination because it made absolutely no reference to that determination. If respondentis asking this Court to presumethat an uneducated, non- English speaking immigrant from a wat-torn, communist country, would have understood thetrial court’s phrase that it “alone, will make those decisions”as including the unmentionedspecial circumstance determination,it is asking for something that is unreasonable on its face. Moreover,it is asking this Court to violate basic principles of waiver under state and federal law. Given the importance oftherightto trial by jury as a fundamental guaranty ofthe rights andliberties of the people, “every reasonable presumption should be indulged against” its waiver. (Hodges v. Easton (1882) 106 U.S. 408, 412; see also Johnson v. Zerbst, supra, 304 U.S.at p. 464.) Respondent’sreliance on Diaz and People v. Wrest, supra, 3 Cal.4” 1088 (RB 42), is a stretch too far: in each case,thetrial court exp4atly mentioned the special circumstances, and in each case, the defendant responded that he was waivinghis right to jury for the special circumstances. (Peopk v. Diaz, supra, 3 Cal.4% at pp. 564-565; People v. Wrest, supra, 3 Cal.4* at pp. 1102-1104.) Neither occurred here: the special circumstance was not mentioned and appellant did not respond that he was waiving the rightto trial by jury for the -15- special circumstance determination. It is difficult to fathom why respondentdiscusses Peopk v. Granger (1980) 105 Cal.App.3d 422,a case thatis directly contrary to its position. (RB 40-41.) In Granger, the appellate court concluded thatthe trial court erred in failing to take a waiver of the defendant’s rightto trial by jury for the special circumstance. (Id. at p. 428.) Five years after Granger, tespondenturgedthat the case was wrongly decided, but this Court rejected that argument. (Peopkv. Memro, supra, 38 Cal.3d at pp. 701-702.) Here, respondent changes course and contends that Granger founderror based on the possibility that the defendant was misled: the “elaborate and careful” explanations of the otherrights given in that case may have misled the defendantinto thinking he had noright to a jury trial on the special circumstance allegations. (RB 43.) That reading of Granger is both errant and foreclosed by this Court’s decision in People v. Deere (1985) 41 Cal.3d 353: Granger held that the defendant’s waiver ofa jury trial in a murder case did not extendto the special circumstances phase of the case, because thetrial court failed to adequately explain to the defendantthe availability of a trial on thatissue. (Id. at p. 360.) © Deere does not mention that the defendant in Granger was “misled.” Nothing in the record that establishes that appellant was aware ofhis right to trial by jury for the special circumstance. It would be pure speculation to conclude that appellant knowingly and intelligently waived that right. The putative waiverofhis right to jury for the special circumstance was invalid. 6. Deere has been disapproved on other grounds. (People v. Bloom (1989) 48 Cal.3d 1194, 1228,fn. 19.) -16- C. The Putative Waiver of the Right to Trial by Jury at the Penalty Phase Is Invalid In People v. Hovarter, supra, 44 Cal.4* 983, this Court, in a unanimous opinion, concluded: Because the default position in criminal casesis a trial by jury, with a jury trial waiver the exception, the first paragraph of section 190.4, subdivision (b) must be read to mean that, despite the fact an accused waivedhis right to a jury for the guilt phase, the trial court must presume the defendant wantsa jury to try the penalty phase unless a jury is again waived. In other words, as an addedprotection for criminal defendants,a single jury trial waiver given early in the trial processis insufficient; a defendant must reaffirm his waiver for the penalty phase. (Id. at pp. 1026-1027.) In this case, the trial court did not have appellant reaffirm his waiver for the penalty phase. Although Hovarter was decided shortly after this case was tried, respondentdoesnot rely on that fact. After all, Hovarter was simply construing the language of section 190.4, a statute adopted decades before that case was decided. Instead, respondent contends that Hovarter’s conclusion “appears to be dicta” (RB 47) and is insufficient authority: appellant doesnotcite, and respondentis not aware of, any authority other than Hovarter for the proposition that a defendant must “reaffirm”his jury trial waiver at the penalty phase. (RB 46-47.) In appellant’s view,the legislative enactment of section 190.4 and this Court’s unanimousdecision in Hovarter are sufficient authority for the rule that a defendant mustreaffirm his jury trial waiver at the penalty phase. Further, the Hovarter court’s analysis of section 190.4 andtherightto trial by jury wereintegral to its conclusion that a defendant may waive a jury for a penalty phase retrial without violating section 190.4 or the Sixth Amendment. The lack of additional authority may be dueto the fact that Hovarter involved a matterof first impression (éd. at p. 1024), and the Court did not mince words: Because the default position in criminal casesis a trial by jury, -17- with a jury trial waiver the exception, the first paragraph of section 190.4, subdivision (b) must be read to mean that, despite the fact an accused waivedhis right to a jury for the guilt phase, the trial court must presume the defendant wants a jury to try the penalty phase unless a jury is again waived. (Id. at p. 1026, emphasis added.) Certainly, the Benchguide used by California trial courts for the penalty phase of a capital case -- a secondary authority -- did not understand Hovarter's holding to be “dicta”: Whenjury is waived, obtain a waiver from defendant, defense counsel, and prosecutor, even if there were waiversatearlier stages of the case. A jury waiver for one phase of a death penalty trial is not effective for any other phase. (Cal. Judges Benchguides, Death Penalty Benchguide: Penalty Phase and Posttrial, Benchguide 99 (CJER 2011 rev.), § 99.2, p. 99-8.) Respondentdiscusses several cases thatit forthrightly admits do not address whether a separate waiver need be taken before the penalty phase. (RB 45-46) As those cases did not addressthe issue raised here, they are not pertinent: a case is not authority for a proposition not considered. (Peopkev. Brown (2012) 54 Cal.4" 314, 330.) Respondentnotesthat there is “no federal constitutionalright to have a jury determine whether ornot to impose the death penalty” (RB 46), but fails to explain why this makes any difference. A fundamental constitutional right is not diminished because its source is state law. Federal law aside, in California, a defendanthas a constitutional and statutory right to have a jury determine whether or not to impose the death penalty. And in California, a waiver of the right to trial by jury must be reaffirmed at penalty. Appellantalso notes that the substance of respondent’s proposition is questionable. Appellant has arguedthat jury unanimity in a capital case is required by federal law in a capital case under the Sixth, Eighth, and Fourteenth Amendments. (AOB 43 & fn. 13) In Schad v. Arizona (1991) 501 USS. 624, after noting that there is no federal right to unanimity in criminal -18- cases, the high court added the phrase “at least in noncapital cases.” (Id. at p. 635).7 However, even assumingthat the federal right to unanimity does not apply to capital cases, an accused “has a substantial and legitimate expectation that he will be deprived ofhis liberty only to the extent determined bythejury in the exercise ofits statutory discretion [citation], and that liberty interestis one that the Fourteenth Amendmentpreserves against arbitrary deprivation by the state.” (People v. Robertson, supra, 48 Cal.3d at p. 37.) The denial of the state law right by virtue of an invalid waiver would be arbitrary, and violate due process and equal protection guarantees. (See Hicks v. Oklahoma (1980) 447 U.S. 343 [state law may create for a defendanta liberty interest under due process]; City ofCleburne, Tex. v. Cleburne Living Center (1985) 473 USS.432, 439 [the Equal Protection Clause essentially requires that “all persons similarly situated should betreated alike”’].) Respondentrails against the “severe constraints on trial courts” by requiring a separate waiver at the penalty phase. (RB 48.) But this Court has already found that taking a separate waiver for the special circumstancesis not likely to be “overly time consuming.” (People v. Memro, supra, 38 Cal.3d at p. 704.) Ironically, respondent admits that the Memro court “stated that the rule announced was unlikely to have any ‘dramatic effect’ on thetrial of guilt and special citcumstances[.]” (RB 41, quotation marks in original.) Taking a jury waiveris straightforward, and is done every dayin this state’s trial courts. To describe the Legislature’s “added protection”for this core, fundamental constitutional right (People v. Hovarter, supra, 44 Cal.4at p. 1027) as imposing a severe constraint on thetrial courts is, at the very least, immoderate. 7. At least 47 states require a unanimouscriminal jury verdict. (Thomas, Nonincorporation: The Bill ofRights AfterMcdonald v. Chicago (2012) 88 Notre DameL.Rev. 159, 201, fn. 292.) -19- D. Denial of the Right to Trial by Jury Is Structural Error That Requires Reversal Respondent,in discussing whatit refers to as “harmlesserror,” concedes that an invalid waiver ofthe right to a jury trial at the guilt phase requires automatic reversal. (RB 49.) This rule was madeclear by the high court in Sa/ivan v. Louisiana (1993) 508 U.S. 275, 281-282: “The deprivation of {the right to trial by jury] with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.” This Court agteed with that analysis in Peopée v. Ernst (1994) 8 Cal.4% 441, 449, and Peopke v. Collins, supra, 26 Cal.4at p. 311. (AOB 47; see also People v. Holmes (1960) 54 Cal.2d 442, 443-444 [invalid jury waiver required summary reversal].) Lower federal courts also agtee that the deprivation oftherightto trial by jury is structural error that requires automatic reversal of the conviction. (Miller». Dormire (8Cit. 2002) 310 F.3d 600, 604.) In United States v. Duarte-Higareda, supra, 113 F.3d 1000,the court held thatthe trial court’s failure to ensure the adequacy of the defendant’s jury waiver “affected the basic framework of[his] trial and we cannot determine whetherthis effect was harmless.” (Id. at p. 1003.) In United States v. Wilkams (7% Cir. 2009) 559 F.3d 607, the court recognized that an “invalid jury waiver certainly affects the framework of a case in the sense that the determination ofguilt or innocence will be made by a judge rather than a jury, and it would be a dubiousenterprise to try and show that a jury likely would have reached a different result than the judge did.” (Id. at p. 614.) Respondentcorrectly points out that this Court has left open the question ofprejudice with respect to an invalid waiverof the rightto trial by jury on the special circumstances (People v. Memro, supra, 38 Cal.3d at pp. 704- 705), and that several cases from the lower appellate courts have found such error to be harmless. (RB 49-50.) However, these cases were decided under the erstwhile rule thatthe right to a jury trial on a special circumstance - 20 - allegation is of statutory, rather than constitutional, derivation. (See Peopkv. Gastile (1988) 205 Cal.App.3d 1376, 1382; People v. Moreno (1991) 228 Cal.App.3d 564, 573.) That rule is no longer valid. This Court now recognizes that a special circumstance is equivalent to an elementof a crime, and that an error relating to a special circumstance violates the federal Constitution. (See People v. Lewis (2008) 43 Cal.4% 415, 520-522.) Respondentappears to recognize that federal constitutional erroris involved, as it contends that the error was harmless under the federal beyond- a-reasonable-doubt standard. (RB 50.) Butits assertion that the error was harmless is based onits view ofthe strength of the evidence. This Court rejected that reasoning in Collins: Harmless error review is inapplicable to a violation ofthe right to a jury trial because where a case improperlyis tried to the court rather than to thejury, there is no opportunity meaningfully to assess the outcome that would have ensued in the absenceofthe error. (People v. Collins, supra, 26 Cal.4at pp. 311-312,internal quotation marks omitted.) Theresult is analogous to the holding in United States v. Gonzalez- Lopez (2006) 548 U.S. 140, where the defendant’s Sixth Amendmentright to counsel of choice was violated: “Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.” (Id. at p. 150.) With respect to the penalty phase error, respondentavers thatit “is not aware of any authority regarding the prejudice standard to be applied,” and submits that the standard from Peopk v. Watson (1956) 46 Cal.2d 818, should be applied. (RB 50-51.) Assuming that a prejudice standard were to be applied, this Court would surely look to the standard announced in Peopk v, Brown (1988) 46 Cal.3d 432, 448for state-law penalty phase errors: whether the error contributed to the verdict. Further, respondent wouldplace the responsibility on the defendant to show hatm from the error. (RB 51.) This 21 - is inconsistent with the federal law standard for constitutional error found in Chapman v. California (1967) 386 U.S. 18, 24, which places the burden upon respondentto showthat the error was harmless. And, once again, respondent offers only a rehashed, strength-of-the evidence argument. As noted, Collins, Emst andthe othercases set forth above explicate why that approachis fatally flawed: as there is no opportunity meaningfully to assess the outcomethat would have ensued in the absenceofthe error, the error is equivalent to a structural defect in the proceedings. Further, the practical effect of the putative waiver wasto forfeit appellant’s fundamental right to have 12 decision makers at the penalty phase, each of whom would have had the powerto veto the death sentence. (See Wiggins v. Smith (2003) 539 U.S. 510, 537.) In a noveltwist, respondent suggests that the standard should be as follows: [A]nyerror in this regard should be deemed harmlessunless there is a reasonable probability the defendant would not have waived jury trial had the trial court attempted to take a second waiver at the commencementof the penalty phase. (RB 51.) It fails to explain how a reviewing court can make this determination other than by unguided speculationin an alternative universe. Reversal of the death judgmentis required. // 22. - 2. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO DEATH BASEDIN PART ON HIS PUTATIVE POSSESSIONINJAIL OF A SMALL METAL ITEM, WITH NO PROOF THATIT WAS SHARP OR DANGEROUS A. The Trial Court Erroneously Relied on Possession of the Small Piece of Metal in Sentencing Appellant to Death A jail guardtestified that appellant, while incarcerated during trial, was foundin possession of a small piece of metal five inches long and one inch wide. The guard had no recollection of any other characteristic of the item and disposed of it. At the penalty phase, the prosecutor introduced the incident under section 190.3, factor (b) as a violation of section 4502, which forbids inmates to possess a “sharp instrument.” (16 SRT 3403, 3405.) An inmate’s possession of a shatp instrumentposesa threat of violencein jail, and is typically admissible under section 190.3, factor (b). (E.g., Peoph». McKinnon (2011) 52 Cal.4 610, 688 [possession of a metal stabbing instrument nine inches long].) Theissue raised by appellant -- whether the alleged incident constituted a crime under section 4502 and posed a threat of violence under section 190.3, factor (b) -- is reviewed de novo. (See Peopk v. Taylor (2010) 48 Cal.4% 574, 656; People v. Butler (2009) 46 Cal.4% 847, 872; AOB 51.) Respondent devotes a paragraphofits brief to section 4574, a statute which applies to inmates in possession of a “deadly weapon”: Section 4574 proscribes any incarcerated person from possessing any “firearm, deadly weapon,explosive, tear gas or teat gas weapon|[.]” A deadly weaponis one “likely to produce death or great bodily injury.” It is the potential of an item that determinesits classification. “The application of section 4574, subdivision (a), is necessarily broad because of manifest security concernsin prisons. Therefore, possession of a potentially dangerousitem is a crime ofrelatively strict liability[.]” (RB 54, internal citations omitted, brackets in original.) Appellant sees no need to take issue with any point in this legal disquisition becauseit is patently 23 - irrelevant to this case. The prosecutorhererelied on section 4502, not section 4574. (16 SRT 3405.) Thetrial court, in its findings, referred to section 4502, not section 4574. (17 SRT 3736.) Asfar as appellantis aware, section 4574 was never mentioned attrial. (AOB 53,fn. 19.) Respondentfails to explain whyit discusses the statute, fails to connectit to the facts of this case, andfails to explain how a small piece of metal of unknowncharacteristicsis likely to produce death or great bodily injury. Indeed, the record strongly suggests that the piece of metal was not a “deadly weapon”: thejail disposedofthe item, the guard had no memory ofthe item, and appellant was notdisciplined or referred for prosecution for possessing a deadly weapon. Respondent,relying on Peopk v. Harris (1950) 98 Cal.App.2d 662 (RB 54), contends thatit is “a reasonable inference that a piece of metalthatsize [five inches long and one inch wide] is similar to a chisel in function, which comes within section 4502.” (RB 55.) In Hams, the prisoner was found in possession of a metal item which the court of appeal examined: It is a steel wood chisel, with the wooden handle broken off, is aboutsix inches long, three-quarters of an inch wide, an eighth ofan inch thick, and has a sharpened point. (Id. at p. 663.) Not surprisingly, the court concluded that the chisel was a “sharp instrument” under section 4502. (Id. at p. 666.) A chisel is “[a] metal tool with a sharp beveled edge, used to cut and shape stone, wood, or metal.” (American Heritage Dictionary (4% ed. 2006) at p. 326.) In this case, the item could not have been a chisel, or even equivalent to one. There is no evidence thatit had a beveled edge, a sharp edge,a point, or a handle(either present or broken off); and no evidenceofits flexibility, stiffness, weight, or function. Only speculative fancy can fashion a chisel from the evidence in the record. An inference that reasonably andlogically follows from a preliminary fact is one thing; guesswork is another. (Peopkv. Massie (2006) 142 Cal.App.4t 365, 374.) “Mere conjecture, surmise, or 24 - suspicion is not the equivalent of reasonable inference and does notconstitute proof.” (People v. Anderson (1968) 70 Cal.2d 15, 24, internal quotation marks omitted; see also In re H.B. (2008) 161 Cal.App.4" 115, 119-120.) Respondentsimply cannotbring itself to admit the obvious: there is no evidence that the small piece of meal was “sharp” or had a sharpened point. It has no answerto the principle that “to be a ‘sharp instrument’ under section 4502, the object must be sharp.” (Peopk v. Hayes (2009) 171 Cal.App.4549, 560.) Given the two known dimensions-- five inches long and one inch wide-- the item could not have had a point. As the thickness of the item is unknown,there is no evidence in the record to support a finding that it was sharp on its edge. Sharpness maybein the eye of the beholder, but this item was rectangular, not sharpened to a point. Thus, as in Peopk v. Forrest (1967) 67 Cal.2d 478, 481, where this Court found that a certain knife was not a dirk or dagger “as a matter oflaw,” this small piece of metal of unknown characteristics cannot qualify as a sharpened or stabbing instrument under section 4502 as a matter of law. (See also People v. La-Grande (1979) 98 Cal.App.3d 871, 872-873 [concluding that “an unaltered awl is not a dirk or a dagger as a matter of law”].) The prosecution failed to prove this incident beyond a reasonable doubt, andthe trial court erred in considering this incident in aggravation undersection 190.3, factor (b). 8 B. The Trial Court’s Reliance on this Evidence in Sentencing Appellant to Death Is Prejudicial, Both Individually and When Considered with the Other Penalty Phase Errors With regard to prejudice, respondent contendsthat the standard announced in People v. Watson (1956) 46 Cal.2d 818, 836, should be applied. 8. Respondent contendsthat appellant’s failure to object on constitutional groundsconstitutes forfeiture of those claims. (RB 55) Appellant addressed that issue in his opening brief. (AOB 58, 70-71.) 25 - (RB 55.) But this Court has “long applied a more exacting standard of review” than the Watson standard when assessing whether a state-law error wasprejudicial at the penalty phase of a capital trial. (People ». Brown (1988) 46 Cal.3d 432, 447-448.) In fact, this Court applied the Brown standard in Peopkev. Lewis (2008) 43 Cal.4415, 531, one of cases cited by respondentin its prejudice discussion. (RB 55.) This is not a matter of semantics. The Brown standard is clearly more exacting than the Wasson standard: the former requires a reasonablepossibility that the error affected the verdict, while thelatter requires to a reasonable probability that a more favorable result would have been reached absentthe error. Further, this Court has concluded that the Broun standard is the same “in substance and effect” as the test for prejudice enunciated in Chapmanv. California (1967) 386 U.S. 18 (People v. Nelson (2011) 51 Cal.4 198, 218, fn. 15), and, the Chapman standard is more exacting than the Watson standard (People v. Cahill (1993) 5 Cal.4% 478, 510; Peopke v. Diaz (2013) 213 Cal.App.4743, 760). Under the appropriate standard ofreview, the burden is on the beneficiary ofthe error -- respondent-- to prove thatit was harmless beyond a reasonable doubt. (People v. Pearson (2013) 56 Cal.4t 393, 463.) The appropriate inquiry is not whether the verdict would have been rendered absentthe error, but whether the verdict actually rendered “‘was sutely unattributable to the error.” (Ibid., quoting Su/ivan v. Louisiana (1993) 508 U.S. 275,279.) | Respondent’s contention that the error was /rivia/ (RB 55)is belied by the record and commonsense. The prosecution did not believe that the incident wastrivial: it fought for the introduction ofthis incident andrelied uponit in closing argument. (AOB 50, 59.) It utilized this evidence becauseit believed that it would materially strengthen its chances of obtaining a death sentence. (See People v. Spencer (1967) 66 Cal.2d 158, 169, fn. 11.) That fact distinguishes this case from People v. Lewis, supra, 43 Cal.4" 415, cited by respondent (RB 55), where “the prosecutor did not exploit the evidencein 26 - closing argument.” (Id. at p. 531.) Nordoes it matter whether the prosecutot mentioned the incident one ot one hundred times: the trial court got the point. Evidence that a defendant possessed a sharp instrumentin jail is similar to evidence of an escape and weighsheavily in the sentencer’s determination ofpenalty, due in large part to the inevitable inferences that arise therefrom: past and future dangerousness and failure to adjust to confinement. (See People v. Lancaster (2007) 41 Cal.4 50, 95; People v. Jackson (1996) 13 Cal.41164, 1232.) The fact that thetrial court explicitly relied on thejail incident as supportfor its death sentence establishes that the error contributed to and affected the verdict. (17 SRT 3755-3758.) As noted in appellant’s opening brief, counsel for the codefendant Oday Mounsaveng exploited the incident for these very reasons: “You've heard nothing, Your Honor, about Oday Mounsavengcausing trouble in the jail or having a shank or beating up people or cussing at people orraising hell.... So he is not a threat of danger to anyone andto no onein the future.” (17 SRT 3676; see also 17 SRT 3691-3692.) Thus, Mounsaveng’s counsel used the incidentto argue that his client, unlike appellant, did not pose a danger in the future and would notfail to adjust to confinement. (AOB 59-60.) Whenevaluating an error’s effect on the verdict under the Chapman standard (and presumably the Brown standard), a reviewing court must look to the entire record, including the mitigating evidence. (See Peopk v. Aranda (2010) 55 Cal.4th 342, 367.) In this case, appellant grew up in a war zone in a third- world, communist country. His family was poor; he was uneducated and forcibly conscripted into the army as a child; he was shuffled from one war refugee camp after another; he may have been on drugs during the crime; and he showed remorse when confessing to the crime. (AOB 61, fn. 22; 17 RT 3755.) The weight ofthis mitigating evidence was diminished by the erroneous admission of the aggravating evidence and, therefore, could not be _27 - fairly considered by the sentencer. The fundamental principle that a capital sentencer mustbeable to give meaningful effect to a defendant’s mitigation (Abdul-Kabir v. |Ouarterman (2007) 550 U.S. 233, 246-248) is not satisfied where the defendantis allowed to introduce his mitigation, but the mitigation is considered and weighed against a welter of inadmissible, damaging ageravation. Thatis to exalt form over substance. Forthere to be a fair consideration of the mitigation, it must be considered and weighed against admissible aggravation. The decision betweenlife and death is rarely a foregone conclusion;it may be influenced by even a small addition to the evidence for death: The aggravating evidence in [the defendant’s] case wasstrong, but it was not so overwhelmingas to preclude the possibility of a life sentence. Heinous crimes do not make mitigating evidence irrelevant. (Hovey v. Ayers (9% Cir. 2006) 458 F.3d 892, 930.) Thus, the high court has recognized that“the evaluation of the consequencesof an errorin the sentencing phaseofa capital case may be motedifficult becauseof the discretion given to the sentencer.” (Satterwhite v. Texas (1988) 486 US, 249, 256; see also Mills v. Maryland (1966) 486 U.S. 367, 376-377 [“In reviewing death sentences, the Court has demandedeven greater certainty that the [sentencer’s] conclusions rested on proper gtounds”].) When the sentencer weighs an invalid factorin its decision,“a reviewing court may not assumeit would have made nodifference if the thumb had been removed from death’s side of the scale.” (Stringer v. Black (1992) 503 U.S. 222, 232.) The errorthat occurred here placedsignificant weight on death’s side of the scale. Standing alone, that error requires reversal. But this error does not stand alone.It is one of three serious penalty phase errors where thetrial court considered and relied upon inadmissible and damaging aggravating evidence in sentencing appellant to death: this claim involvesthe putative possession of a sharp instrumentin jail; the next involves _ 28 - a putative threat to a jail guard; and the third, a non-violent walkaway from ptison. If this Court believes that the error raised herein is not sufficient in and ofitself to require reversal, then reversal is required whenthe erroris viewed in the contextof the other penalty phase errors. Thetrial court considered andrelied upon these errors together in concluding that appellant posed a continuingthreat of violence. This Court must do the same in determining whetherthe penalty phase errors were prejudicial: it must consider the cumulative effect of those errors upon the death sentence. (AOB 59-60.) ? Reviewing courts have recognized the need for cumulative error review in a variety of contexts. (E.g., Taylor v. Kentucky (1978) 436 U.S. 478, 487 & fn. 15 [instructional errors]; Chambers v. Mississippi (1973) 410 U.S.284, 302-303 {evidentiary errors]; People v. Hill (1998) 17 Cal.4% 800,844[errors at closing argument].) Whenassessing errots committed at the penalty phase ofa capital case, cumulative error review is particularly important, not only because of the need for heightened reliability whenlife is at stake, but also due to the unique circumstances ofthe penalty determination. The sentencer in a capital case is given great discretion, must consider and balance the evidence on both sides, and must make a moral decision based on individualized assessment of the defendant. In making the ultimate decision, the balance of aggravating and 9. Respondentattempts to dispose of cumulative error review by noting: “Appellantis entitled to a fair trial, not a perfect one, even wherehislife is at stake.” (RB 66.) It is true that an accused is notentitled to a perfecttrial: “Perfection falls not to the share of mortals.” (Laneet al, Too Big a Canon in the President’s Arsenal: Another Look at United States v. Nixon (2010) 17 Geo. Mason L.Rev. 737, 776, quoting George Washington.) But appellant never claimed otherwise. His claim is that the impact of the three penalty phase errors, whether considered individually or cumulatively, violated his rights understate and federal law and denied him fair trial at the penalty phase, thus requiring reversal of the death judgment. 29 - mitigating factors must be scrupulously accurate. Erroneously admitted aggravating evidence, and the inferences that arise thereftom, skew the balance. The weight of the evidence in favor of death is artificially inflated, and the weight of appellant’s mitigating evidenceis perforce reduced. Cumulativeerror review, by taking accountofthe full impact of capital sentencing phaseerrors, redresses that imbalance. Respondent’s brief concludes with an unexplained observation: “the federal Constitution allows consideration of non-statutory as well as statutory aggravating factors. (See Barclay v. Florida (1983) 463 U.S. 939, 947.)” (RB 56.) The most direct answer to this observation is that California law does not: “A prosecutoris not permitted to introduce aggravating evidence that does not fall within thelisted statutory aggravating factors.” (People v. Thomas (2012) 54 Cal.4 908, 945.) Appellant also notes that the passage in Barviay cited by respondentis followed bythis statement: “It was notirrational or arbitrary to apply these aggravating circumstancesto the facts of this case.” (Barclay v. Florida, supra, 463 U.S. at p. 947.) Here, appellant was denied a long-standing, core protection under California’s death penalty scheme: thelimitation of aggravating factors to thoselisted in the statute. When a capital case sentencer violates that protection by considering andrelying on evidence outside the listed factors, its action is unprincipled andarbitrary. The death sentence must be reversed. // _ 30 - 3. APPELLANT’S ANGRYAND AMBIGUOUS RETORT TO A JAIL GUARD WAS NOT AN UNLAWFUL THREAT UNDER SECTION 69, AND WAS ERRONEOUSLY RELIED UPON BY THE TRIAL COURT IN SENTENCING APPELLANT TO DEATH While appellant was detained in jail during trial, he was involved in a fight with another inmate. The prosecution’s notice of aggravation andits witness described the incident as an “altercation” that resulted in cuts and scratches to both participants. (3 CT 787; 16 SRT 3281-3285, 3412.) . The prosecution presented no witnessto testify aboutthe altetcation. However,a jail guard whoinvestigated the incident several days thereafter did testify at the penalty phase. He concluded that appellant was the aggressor, and informed appellant that he would be placedin solitary confinement: ie., appellant would beisolated, locked alone in a cell 24 hours a day, and taken out ofthe cell every other day for a 30-minute shower. In response, appellant assumed an angty stance andyelled several times: “I see you all the time on the streets, I’ll remember you.” © The guard deemedthis a threat and gave appellant a rules violation. (16 SRT 3413, 3421.) He did not ask appellant what he meantby the statement, did not ask for a translator (appellant’s commandof the English is not good, according to the guard), and did not know whether appellant was later found guilty of the alleged rule violation. Appellant apparently complied with the guard’s orders and proceeded peacefully to solitary confinement. The guard had no further contact with 10. The guard’s testimonyinitially suggested that appellant was placed in solitary confinementas a result of his statements: “He was housed in isolation, given a rule violation for the statements.” (16 SRT 3413.) His later testimony makesclear, however, that appellant’s angry retort was madein responseto the solitary confinement punishment: “I was interviewing him, and then whenI told him what was going to happen to him asfar as isolation, that’s when he becamehostile at the same time.” (16 SRT 3418; see also 16 SRT 3412-3413, 3414.) -31- appellant. (16 SRT 3416-3417, 3420, 3424.) Over defense objection, the prosecution was permitted to introduce this incident at the penalty phase under section 190.3, factor (b) as a threat in violation ofthe first clause of section 69: that clause proscribes the use of a violent threat in an attemptto deter an officer in the performance ofhis duties. (In re Manuel G. (1997) 16 Cal.4% 805, 813; People v. Lacefield (2007) 157 Cal.App.4% 249, 255.) Toestablish a violation ofthe first clause, the prosecution is must prove beyond a reasonable doubtthat the defendant, with the specific intent of deterring the officer’s performance of duties, made a statement that reasonably appeated to be serious expression ofan intention to inflict bodily harm. (See People v. Gutierrez (2002) 28 Cal.41083, 1153; People v. Hines (1997) 15 Cal.4997, 1060; People v. Nishi (2012) 207 Cal.App.4% 954, 967.) As with thepriorclaim, review ofthis claim is de novo: whether the alleged conductconstituted a crime under section 69 is a legal question,asis the question of whether the conduct posed an express or implied threat of force or violence undersection 190.3, factor (b). (See People v. Taylor (2010) 48 Cal.4% 574, 656; People v. Butler (2009) 46 Cal.4% 847, 872.) Respondent mentionssection 69 only once, when it quotes the prosecutor as arguing that the incident “comes in under factor B [sé] as a violation of section 69 of the Penal Code.” (RB 57.) Its primary contention appearto bethat threats by an inmate that occur “immediately after an otherwise admissible violent criminal incident are admissible under factor (b).” (RB 58.) That contention is repeated at the endofits argument: “appellant’s threat was properly admissible as being made immediately after an otherwise admissible violent incident.” (RB 60.) In other words, irrespective of section 69, the statements were admissible under section 190.3, factor (b) because they occurred immediately after an admissible altercation. This contentionis plainly without merit. First, it is directly contrary to _ 32 - the manner in which the issue was presented and arguedattrial. The incident litigated at trial was the alleged threat to the jail guard, not the altercation. (AOB 90.) The prosecutor argued that appellant’s statements were admissible as a threat under section 69. (16 SRT 3736.) Asfar as appellantis aware, the prosecutor never made the argument, now raised by respondent, that the incident was admissible under factor (b) because it occurred “immediately” after the fight. Nothing in the record showsthat the defense or thetrial court were aware of this theory of admissibility. As appellant had no notice of this theory of admissibility, it cannot be raised for thefirst time on appeal. (See Sheppard v, Rees (9% 1990) 909 F.2d 1234, 1236-1237[The Sixth Amendment guarantees a criminal defendant a fundamentalright to be clearly informed of the nature and causeofthe charges in order to permit adequate preparation of a defense”]; People v. Smith (1983) 34 Cal.3d 251, 270-271 [Attorney General’s new theories cannotberaised for the first time on appeal].) Second, there was no “properly admitted evidence” regarding the altercation because the prosecution, for whatever reason, chose not to present the testimony of the guards who witnessed it. (AOB 66, fn. 22; 16 SRT 3404- 3405; 17 SRT 3570-3571, 3630.) As respondent acknowledges (RB 57), the trial court concluded that absent eyewitness testimony, the fight was “probably inadmissible.” When the court asked defense counsel whether he wanted to strike any referenceto the fight, counsel replied that the prosecutor “hasn’t presented that yet.” The court agreed, stating “Right.” (16 SRT 3405.) Thus, contrary to respondent’s premise, there was no evidence of an otherwise admissible violent incident that would permit the introduction of the putative threat. Third, appellant’s statements to the guard did not occur “immediately” after the altercation, as is required by the cases cited by respondent. (RB 58, 60; cf. AOB 67, fn. 27.) In People v. Kipp (2001) 26 Cal.4% 1100, the defendant attempted to escape from the Los Angeles County jail and, while being - 33 - subdued, threatened to kill the officer. The prosecution did notargue that the death threat violated a penal statute (at the time, the now-applicable threat statute, section 422, had not been adopted), but rather that it was admissible “as part of the attempted escape.” (Id. at p. 1133 & fn. 3.) This Court agreed and concludedthat “threats made while in custody éwmediately after an otherwise admissible violent criminal incident are themselves admissible under factor (b).” (Id. at p. 1134, emphasis added.) Similarly, in People v. Montel (1993) 5 Cal.4 877, the defendanttried to escape arrest, fought with the officer, and made threats while being subdued. (Jd. at pp. 915-916.) As in Kipp, this Court concludedthat: Even if defendant’s threats were not themselves crimes, they occurted zn the course ofa violent, criminal resistance to arrest, and they were thus admissible under factor (b) to demonstrate the aggravated nature of defendant’s unlawful conduct. (Id. at pp. 916-917, internal citation omitted, emphasis added.) Kipp and Monsiel concludethat a statementto a guard thatis otherwise inadmissible under factor (b) may be admitted to provide contextto admissible violent criminal conduct. “Context” is not an unlimited concept, however; it requires at a minimum a temporal connection,as Kipp and Montel make clear. The statement must occur “in the course of” or “immediately” after the admissible conduct. This temporal nexus provides the basis upon which otherwise inadmissible aggravating evidence may be considered and telied upon by the sentencer in a capital case. The context rule does not apply here for two reasons. First, as noted, there was no substantial evidence of violent criminal conduct-- ie., the altercation -- because the prosecution chose notto introduce evidence of that incident. (16 SRT 3382-3384.) Second, the statements were not admissible to provide context for the altercation because the required temporal nexus between the two is absent: appellant’s angry retort occurred several days after the altercation; it did not occur during the course of or immediately after an _ 34 - admissible violent incident. Appellant’s statements cannot provide context to an incident that the prosecution chosenottolitigate. To the extent that respondent contends that appellant’s statements violated section 69, this too lacks merit. Section 69 is not directed at threats simpliciter, but rather at threats of violence that are intended to deter the lawful performance of an officer’s duties. (In re Manuel G., supra, 16 Cal.4% at pp. 814-815; People v. Superior Court (Anderson) (1984) 151 Cal.App.3d 893,897.) Notall angry or heated statements to a jail guard violate section 69, or are admissible under factor (b). In People v: Tuilaepa (1992) 4 Cal.4% 569, this Court took note of the “general notion”that“abusive and even threatening language”is not inevitably admissible under factor (b). (Id at p. 590.) Evena death threat to a guard may be only “an angry retort” and therefore inadmissible under factor (b). (Ibid.) In Peopk v. Silva (1988) 45 Cal.3d 604, where the defendanttold a police officer that “he would kill the first police officer to step inside his cell if he was not permitted to visit with his wife,” the Attorney General conceded error, and this Court viewed the statementas simply “heated frustration from being deprived ofvisits by his wife.” (Id. at p. 636.) Similarly, in People v. Pinholster (1992) 1 Cal.4% 865, disapproved on other groundsin People v. Wilkams (2010) 49 Cal.4405, 459, where the defendant stated that “if he were not sent to state prison he would ‘go out onthestreets and do something to get back in,”’ this Court observed that the statements were “arguably inadmissible.” (Pinbolster, supra, at pp. 961-962.) In Peopkv. Rodrigues (1994) 8 Cal.4% 1060, where the defendant threatened to “kick [a guard’s] ass,” respondent did not argue that the incident“constituted conduct properly falling undersection 190.3, factor (b), or that there was substantial evidence in the record of a Penal Codeviolation.” (Id. at pp. 1170-1171.) In short, “mere angry utterances or ranting soliloquies, however violent” do not _35- violate threat statutes. (In re Ryan D. (2002) 100 Cal.App.4* 854, 861-862.) 1! Respondentattemptsto distinguish Twilaepa on thebasis that “appellant admitted a rules violation”for the altercation. (RB 59) However, the defendantin Tuilaepa did not contest whetherthe incidents had occurted. (Peopk v. Tuilaepa, supra, 4 Cal.4% at pp. 587-591.) Respondentalso notesthat the defendant in Twilaepa waslockedin his cell, while appellant was not. But Tuilaepa involved section 71, which requires that “it reasonably appears to the recipient of the threat that such threat could be carried out.” (Id. at p. 590,fn. 8.) Although section 69 doesnot require that showing, it does require that a threat reasonably appearto be a serious expression of an intentiontoinflict bodily harm. (People v. Hines, supra, 15 Cal.4at p. 1060.) Appellantseeslittle difference in those requirements. Whether or not a defendantis locked in a cell, the question is whether the statementconstitutes a setious expression of an intention to inflict bodily harm in an attempt to deter an officer from performing his duties. Tuilaepa may notinvolve the same penal statute, but the issue it presented -- whether statements qualified as a threat-- is similar to that presented here. Remarkably, respondent contendsthat appellant’s statements were “rather chilling” as opposed to the “angty outburst” in Tuz/aepa. (RB 59.) The exact opposite is true. The defendantin Twi/aepa madeexplicit death threats to the guards, and threated to burn a guard’s face. (RB 58.) By contrast, appellantsaid, “I see youall the time onthestreets, Pll remember you.” (16 SRT 3413.) Surely, explicit death threats to a guard are morechilling than the strange and ambiguous statements madeby appellant. 11. In his openingbrief, appellant set forth statements that have been held to violate section 69 (or other criminal threat statutes), typically statements with an unmistakable threat of great violence and physical action designed to deter the officer from performing his duties. (AOB 67.) _ 36 - Takenliterally, appellant’s first statement-- “I see you all the time on the streets” -- was a statement of lawful conduct, which would not constitute a violation ofsection 69. (See In re Manuel G., supra, 16 Cal.4at pp. 814-815; People v. Superior Court (Anderson), supra, 151 Cal.App.3d at pp. 894-895.) If not taken literally, the statement madelittle sense. The guard testified that this was his first and only contact with appellant. (16 SRT 3420.) Therefore, appellant could not have seen him all the time onthe streets.” The guard did nottestify that the term “streets” had a different meaning in a custodial context from its normal meaning. An unequivocal statement of an intent to do harm maynotbe required to establish a violation of section 69. (See Peopke v. Iboa (2012) 207 Cal.App.4" 111, 119-120; In re Ryan D., supra, 100 Cal.App.4at p. 861.) Butthe statute requires a serious expression of an intentionto inflict bodily harm and a discernible intent to deter the officer. (People v, Hines, supra, 15 Cal.4% at p. 1061; People v. Iboa, supra, 207 Cal.App.4® at pp. 118-119.) Here, as noted, appellant’s statements were ambiguous, as might be expected from a person without a command of the English language. (See In re George T. (2004) 33 Cal.4620, 635 [ambiguous nature of poem,and the circumstances surrounding its dissemination, failed to establish that the poem constituted a criminal threat]; People v. Walker (1988) 47 Cal.3d 605, 639 [concluding that an ambiguousstatement did not violate section 69].) Ambiguousornot, however, the statements do not contain a serious expression of an intention to inflict bodily harm, or a discernible intent to deter the officer. It is also true that context may assist in determining whether a statement qualifies as a true threat. (See Peopk v. Gutierrer., supra, 28 Cal.4* at p. 1153; Peopke v. Iboa, supra, 207 Cal.App.4at pp. 119-120.) But respondent’s idea of context is a one-sided description of appellant’s angry appearance,his close physical proximity to the guard, and the alleged (anddiscredited) proximity in time betweenthe altercation and statements that occurred days _ 37 - later. (RB 59-60.) The true context includes more. When the guard ordered him to change jumpsuits, appellant complied. The guard then informed him that he was beingplacedin solitary confinement; ie., that he would be locked alonein a cell, 24 hours a day, andlet out only every other day for a 30-minute shower. Solitary confinementis no small punishment, ? and appellant would remain there for two years. He reacted by assuming an angry stance and making the two statements noted above. Appellant does not have command of the English language. Neither statementexplicitly attempted to deter the officer’s performanceofhis duties, and neither appearedto be a serious expression of an intention to inflict bodily harm. Appellant, having expressed his anger, apparently proceeded peacefully to solitary confinement. (16 SRT 3420.) The guard did notcall for backup, and did not request the prosecutor to charge appellant with a crime. In fact, he had no further contact with appellant. The guard’s actions are not consistent with a person whofeels that he has been threatened with violence. Respondentpoints out that the guard took appellant’s wordsas a threat. (RB 59-60.) Butit is difficult to describe the guard’s view of a “threat” as anything but tautological: “In our position as a correctionalofficer, umm, any time a person or inmate threatensyou, that’s considered something that’s considered a threat.” (16 SRT 3418.) When pressed by the trial courtto state what he observed,nothis interpretation, the guardtestified, “He was angry at me.” (16 SRT 3421.) Jail guards mustfeel free to pursue their lawful duties 12. Courts have long recognized the psychopathologicaleffects of solitary confinement upon inmates. (See In re Medley (1890) 134 U.S. 160, 167-171 [concluding that solitary confinementfor four weeks was“an additional punishmentof the most important and painful character”]; McC/ary v. Kelly (W.D.N.Y. 1998) 4 F.Supp.2d 195, 208 [the notion that “prolongedisolation from social and environmental stimulation increases the risk of developing mental illness does notstrike this Court as rocket science’’].) 38 - withoutfear of violence. (See People v. Martin (2005) 133 Cal.App.4" 776, 782.) Butit is not against the law for a pretrial detainee to express anger. “T]he First Amendmentprotects a significant amountofverbal criticism and challenge directed at police officers.” (People v. Iboa, supra, 207 Cal.App.4"atp. 120, fn. 4, quoting City ofHouston, Tex. v. Hill (1987) 482 U.S. 451, 461.) Regardless of the guard’s belief, whether a statement violates section 69 is a question oflaw to be decidedby a court, not by a guard. ¥ Respondentalso contendsthat appellant’s statements are similar to those at issue in People v. Hines, supra, 15 Cal.4* 997,a capital case involving section 69. In a parenthetical description,it summarizes this Court’s holding: threats than an officer would “be sorry fhe] ever saw” the defendant, that the defendant would kill the officer, and that the defendant would kick an officer if he searched the defendant’s property all admissible under factor (b)[_] (RB 60,first brackets in original.) Even in this truncated description, the key fact that distinguishes Hines from this case is readily apparent: a direct threat to kill the officer. Indeed, the defendant in that case made three explicit threats, including the death threat, and each involved physical action that could be reasonably construed as an attempt to discourage the guard from performing his duties. (Id. at p. 1059.) In this case, by contrast, neither appellant’s statements norhis actions could reasonably be construedas an attempt to deter the guard from performing his duties or as a serious expression ofanintention to inflict bodily harm. He complied with the guard’s orders, changedhis clothes without incident, and did not physically resist in any manner. His angry reaction and insensate retort are a far cry from 13. Appellant notes that proofof the subjective state of mind of the officer purported threatened is not required under thestatute. (See People ». Hines, supra, 15 Cal.4% at p. 1061, fn. 15 [§ 69 does not require that the recipient of the threat actually fear that the threat will be carried out].) - 39 - the death threats in Hines. “4 When placed in context, appellant’s angry, ambiguous statements appear to be nothing more than that. By describing them as “chilling,” respondentis inappropriately embellishing the plain meaning of the words “so that the law may teach them.” (United States v. Bagdasarian (9% Cir. 2011) 652 F.3d 1113, 1120.) More apt is the observation madeby this Court in Peopke ». Boyd (1985) 38 Cal.3d 762, 774: “trivial incidents of misconduct andill temper” should not be the basis for a death sentence. Appellant’s statements were notthreats under section 69 as a matter of law. Concomitantly, the prosecution failed to provethis incident beyond a reasonable doubt. Thetrial court erred in considering this incident in aggravation. As tegards the prejudice that ensued from the trial court’s consideration of this incident, respondent’s argumentis brief: any error madeby thetrial court in considering the evidence was harmless, for the reasonscited, ante (ArgumentIII /szc/.) The impact of the evidence was minor, in comparison with properly admitted aggravating evidence, and could not have affected the penalty determination. (RB 60.) Respondent meantto refer to Argument Two, not Argument Three, but theslip is revealing. As discussed in the last issue, each of these claims involves the sentencer’s consideration of erroneously admitted aggravating evidence. In all three, that evidence should not have been considered by the sentencer or given “any weightin the penalty determination.” (Peopk v. Boyd., 14. It also bears noting that Hines was decided before In re Manuel G., supra, 16 Cal.4% 805, where this Court concluded that section 69 “does not reach threats made only in response to orin retaliation for an officer’s past performance ofhis or her duties.” (Id. at p. 817 & fn. 6; AOB 91.) Appellant’s statements, to the extent they had any meaning other than an expression of anger, were madein response to the guard’s past performance of his duties: his placementof appellant in solitary confinement. Respondent does not address this argument. - 40 - supra, 38 Cal.3d at p. 773.) In all three, the trial court relied on the incident in sentencing appellant to death. As appellant has argued, these errors must be considered bothindividually and cumulatively in assessing prejudice. Appellantreiterates (see Arg. 2, ante) that the correct standard of review for federal law error at the penalty phase is derived from Chapman v. Cakfornia (1967) 386 U.S. 18, 24; for state law error, the standard is found in Peophe ». Brown (1988) 46 Cal.3d 432, 447-448. Second,thetrial court explicitly relied on thejail incident as support for its death sentence: that fact establishes beyond a reasonable doubtthat the error contributedto,thatis, affected the verdict. Third, this type of aggravating evidence,allegedly threateninga jail guard, inevitably invokes inferences of past and future dangerousness and a failure to adjust to confinement, each of which weighs heavily in the sentencer’s determination of penalty. Fourth, the incident was exploited by counsel for the codefendant. Fifth, the weight of the mitigating evidence here was diminished by the erroneous admission of aggravating evidence and, therefore, could notbe fairly considered. Thetrial court’s error in admitting the evidence,in considering it in aggravation, and in explicitly relying on it as a basis for its death sentence requires reversal of that sentence under any standard of review. If the Court believes that the error is not sufficient in and ofitself to require reversal, then reversal is required whenit is viewed in the context of, or cumulatively with, the other penalty phase errors. // _41 - 4. THE TRIAL COURT ERRED IN RELYING ON APPELLANT’S NONVIOLENT WALKAWAY FROM A PRISON CAMPIN WASHINGTON STATE NINE MONTHS BEFORE THE CAPITAL CRIME AS A CIRCUMSTANCE OF THE CRIME IN SENTENCING APPELLANT TO DEATH A. The Claim Should Be Addressed on the Merits Appellant’s attorney introduced prison documents showing that appellant committed a nonviolent walkaway from a prison camp in Washington State nine months before the capital crime. The walkaway occurred at the end of appellant’s prison term, and may have been motivated by a fear of deportation to Laos, where he wouldlikely be killed by the Laotian government. (17 SRT 3634-3636.) Defense counsel introduced those documents at the guilt phase, andfailed to object at the penalty phase to the trial court’s consideration of the walkaway as a circumstance ofthe crime under section 190.3, factor (a). (AOB 75-77.) The attorney is the captain of the ship (In re Horton (1991) 54 Cal.3d 82, 95), and a failure to object to error may be imputed totheclient and result in forfeiture of a claim. But application of the forfeiture rule is not automatic. (Peopk v. McCullough (2013) 56 Cal.4t 589, 593.) That rule should not be applied where, as here, the captain appears to have beenasleepat the helm. Respondentnotesthat a failure to object to evidence offered under factor (b) of section 190.3 can result in forfeiture. (RB 62, citing People v. Lewis ¢ Olver (2006) 39 Cal.4% 970, 1052.) But appellant’s walkaway was admitted underfactor(a), as a citcumstance of the crime, not underfactor (b) as conduct involving a threat of violence. While a similar forfeiture rule may apply to evidence offered under factor (a), respondent provides no argument why such a rule should apply here. There are differences between the two factors, including the fact that by pleading not guilty, appellant challenged the prosecution’s presentation of“the circumstancesofthe crime.” (See Peophe ». Tully (2012) 54 Cal.4% 952, 1010 [a defendant’s plea of not guilty placedall - 42 - material issues in dispute].) In his opening brief, appellant arguedthatthe claim should be addressed onits merits becauseit presents a pure question oflaw, a well- established exception to the forfeiture rule. (AOB 77.) Respondent contends that a pute question of law is not present because “[w]hether an escapeis admissible under anyofthe factors is dependent on the individualfacts of the case[.]” (RB 63.) Appellant agrees with that proposition as a general matter, but in this case, the “individual facts” are known and undisputed. The walkaway was evidenced by a document, Exhibit 121, as respondent recognizes. (RB 62.) Nocredibility determinations were made; and no independentevidentiary analysis is required of this Court. All that remainsis a pure question of law: whether the walkaway was admissible as a circumstance of the crime under section 190.3, factor (a). This Court is in as good a position as the trial court to decide that issue, and clearly has the discretion to do so. (See Peopke v. Runyan (2012) 54 Cal.4* 849, 859, fn. 3; People v. Yeoman (2003) 31 Cal.493, 118; People v. Mills (1978) 81 Cal.App.3d 171, 175-176.) Application of the pute question of law exceptionis particularly appropriate “when the enforcement of a penalstatute is involved,” or the error fundamentally affects the validity of the judgment. (Hak ». Morgan (1978) 22 Cal.3d 388, 394.) Both ofthese circumstances are present here: the erroneous admissibility of this aggravating evidence fundamentally affected the death verdict, as is discussed below. This Court has also observed that a defendant “4s not precluded from raising for the first time on appeal a claim asserting the deprivation ofcertain fundamental, constitutional rights.” (People v. Vera (1997) 15 Cal.4% 269, 276.) The right to a reliable, accurate and individualized sentence must be counted as fundamental, and that right is denied when a defendant is sentenced to death based in part on evidence that is inadmissible at the penalty phase. (See Johnson v. Mississippi (1988) 486 U.S. 578, 584-586.) Respondentrecognizes that addressing the merits of the claim would _ 43 - “arguably” increase reliability of the penalty determination. (RB 63-64.) § That is an astonishing recognition. If reaching the merits of a claim would arguably increasethereliability of the death sentence, then application ofa procedural bar would arguably decreasethereliability of that determination. Respondent’s recognition that addressing the merits of the claim may increase the reliability of the factfinding that precedes the imposition of a death sentence is consistent with the demandsof the Eighth and Fourteenth Amendments. (See Deck v. Missouri (2005) 544 US. 622, 632.) It is consistent with this Court’s long-standing practice of scrutinizing the penalty phase of a capitaltrial “with considerable care.” (People v. Murtishaw (1989) 48 Cal.3d 1001, 1028; see also People v. Lew Fat (1922) 189 Cal. 242, 247 [In view of the fact, however, that this is a capital case, we have carefully scrutinized the recotd”].) It is consistent with the forfeiture statute itself, Evidence Code section 353: the Assembly Judiciary Committee’s comment onthe statute states that the objection requirementis “subject to the constitutional requirement that a judgment mustbe reversed if an error has resulted in a denial of due process of law.” (People v. Mills (1978) 81 Cal.App.3d 171, 175- 176.) Andit is consistent with The American Bar Association’s recommendations for reviewing capital cases: appellate courts “should review under a knowing, understanding, and voluntary waiver standardall claims of 15, Respondent’s briefstates: [T]he circumstance that ignoring the forfeiture rule in the present case might lead to greaterreliability in the penalty determination is arguably applicable to any capital case, which would result in the forfeiture rule never being applied to any case of arguable Boyd error. Appellant does not advance any argument that the circumstance of arguably increasedreliability of the penalty determination applies uniquely to his case as compared to other capital cases in which Boyderroris asserted. (RB 63-64.) _ 44 - constitutional error not properly raised at trial and on appeal and should have a plain error rule and applyit liberally with respect to errors ofstate law.” (Robbins, Toward a More Just and Effective System ofReview in State Death Penalty Cases, Report ofthe American BarAssociation's Recommendations Concerning Death Penalty Habeas Corpus (1990) 40 Am.U.L.Rev. 1, 10, emphasis added.) Respondentfaults appellant forfailing to argue that the need for heightened reliability applies “uniquely”to his case capital case. (RB 63-64.) Nosuch argumentis requited, however, because the acute need for heightenedreliability applies to all capital cases. (See Woodson v. North Carolina (1976) 428 U.S. 280, 305.) But there are unique circumstanceshere: appellant’s own attorney introduced the evidence in question, apparently oblivious to the repercussions at the penalty phase; there is mitigating evidence; the co-defendantreceiveda life sentence; and the error here is one of three instances wherethetrial court considered andrelied upon inadmissible aggravation in imposing the death sentence. Thestate has“a strong interest in reducing the risk of mistaken judgments in capital cases.” (People v. Alfaro (2007) 41 Cal.4" 1277, 1299.) Forfeiture of this claim would notfurther that interest. As respondent recognizes, addressing the issue on the merits of the claim may increase the reliability of this Court’s review of the death sentence. The merits of the claim should therefore be addressed. B. The WalkawayWas NotPart of the Circumstancesofthe Offense Under Section 190.3, Factor (a) As noted, evidence of appellant’s nonviolent walkaway from a prison camp was admitted as a circumstance of the crime under section 190.3, factor (a), not as conduct involving a threat of violence under factor (b). Respondentdoesnotdispute that the walkaway was inadmissible under either factor (b) or (c). It was neither violent nor inherently dangerous,as is required for admissibility under factor (b) (see People v. Castaneda (2011) 51 Cal.4® 1292, _45- 1334-1335 [evidence of defendant’s nonviolent escapes was inadmissible factor (b)]; and there was no conviction,as is required under factor (c). Nor does respondent contend that the evidence was admissible on any other basis; for example, to rebut mitigating evidence. (E.g., People v. Keenan (1988) 46 Cal.3d 478, 514.) Given that the incident was inadmissible underfactors (b) or(c), the issue is whether a nonviolent walkaway that occurred nine monthsbefore the capital crime and a thousand miles away is admissibleas part of the citcumstances of the crime underfactor (a). © Respondentrelies upon Peopk v. Turner (1990) 50 Cal.3d 668, where the capital crime occurred within months after the defendant had been released from prison. This Court concluded that the prosecutor could properly suggest in argumentthat the “homicide took place under ‘circumstances’ indicating defendant’s unwillingnessto learn from ptior punishment[.]” (Id at pp. 713-714; RB 64.) The Court later described the defendant’s prior prison term as “a circumstance’ ofthe capital crime whichis logically relevant to penalty, since it suggests that defendant was unswayed from criminal conductby his recent incarceration.” (Id. at p. 717, fn. 31.) Appellant’s openingbrief discusses Turner and several othercases that have construed factor (a) to include a defendant’s prior escape or prison term. (AOB79-81;see also Peoph v. Wader (1993) 5 Cal.4% 610, 667-668; Peopk v. Johnson (1992) 3 Cal.41183, 1243.) Each ofthe factors in section 190.3 is designed to direct the sentencer’s attention to specific and commonly understandable facts regarding the crime and the defendant. (People v. Tuilaepa 16. Respondentallowsthat five months elapsed from the walkaway, calculating from the commencementofthe string of robberies. (RB 64.) But the lack of a temporal connection between the walkaway and the circumstances of the crime is evident whether one accepts five or nine months. _ 46 - (1992) 4 Cal.4% 569, 595.) Incidents that are “not within the statutory list” are irrelevant and entitled to no weight in the life and death determination. (People v, Boyd (1985) 38 Cal.3d 762, 773, 775.) The purpose of section 190.3 is not “to place all conceivably relevant ‘bad character’ evidence before the [sentencer].” (People v, Balderas (1985) 41 Cal.3d 144, 202.) Nonviolent criminality is of “limited importance” to a death penalty determination. (Ibid) Accordingly, the statute prevents the sentencer from hearing evidence of conduct which,although criminal, is not of a type which should influence a life or death decision. (Peopk v. Boyd, supra, 38 Cal.3d at p. 776.) In other words, the fact that evidence maybe “logically relevant to penalty” does not suffice for admissibility under the statute. The statute prescribes whatis admissible. A nonviolent walkaway that occurred nine months before the capital crime and a thousand miles away cannot be wedgedin to factor (a) as part of the “circumstances ofthe crime” without doing violence to the plain meaning of the words. Andif a nonviolentincidentis inadmissible, any inferences drawn therefrom, such as an unwillingness to learn from prior incarceration, future adjustment, or a continuing pattern of criminality are inadmissible. The recordhere also strongly suggests that neither the prosecution nor the trial court believed that the walkaway wastruly part of the circumstances of the crime. The prosecution did not attemptto introduced the incidentat the guilt phase. (Cf. People v, Kipp (2001) 26 Cal.41100, 1125-1126.) Thetrial court did not considerthe incidentitself, but rather relied upon it to draw an agetavating inference: that it showed a “continuing pattern of ongoing violent conduct andcriminality.” (16 SRT 3757.) 7 Asthe incident was nonviolent,it 17. The trial court stated that it was not considering the walkawayitself in aggravation, probably because it recognized thatthe incident was nonviolent. (16 SRT 3757.) _ 47 - could notrationally show a continuing pattern of violent conduct. As regards a pattern of ongoing criminality, that is the purpose of factors (b) and (c), not factor (a). The purpose offactor (b) is to show defendant’s propensity for violence; the purpose of factor (c) is to show that the defendant was undeterred by the previous criminal sanctions. (People v. Lewis (2001) 25 Cal.4* 610, 664; People v. Melton (1988) 44 Cal.3d 713, 770.) Even respondent,in its brief, refers several times to factor (b) and “Boyd” error. (RB 62, 63-65; People v. Boyd, supra, 38 Cal.3d at pp. 773-774) Thus, the record showsthat even though the walkaway was admitted underfactor(a), the trial court did not considered it under factors (b). Respondentcontendsthatthetrial court, in considering the circumstances ofthe crime, could take into account that it was committed by “4 person whohadrecently escaped ftom incarceration to show appellant’s dangerousness.” (RB 64.) Appellant had not “recently” escaped, as the walkaway occurred nine (or even five) months before the capital crime. More importantly, the walkaway was concededly nonviolent: respondent does not explain how a nonviolent incident demonstrates a defendant’s dangerousness. By a twist oflogic, a nonviolent incident that was inadmissible under the statute and should have had noplace in thelife or death decision, was recast as part of appellant’s “status” at the time ofthe capital crime, and then admitted underfactor (a), as part of the circumstances of the crime. Thetrial court erred in admitting the incident under that factor andin relying upon inferences drawn therefrom in sentencing appellantto death.. C. The Error Is Prejudicial As regards prejudice, this Court has correctly observedthat the “erroneous admission of escape evidence may weigh heavily in the [sentencer’s] determination of penalty.” (People v. Gallego (1990) 52 Cal.3d 115, - 48 - 196.) 8 In this case, where the escape was nonviolent, what weighed heavily was the aggravatinginferencethat the trial court drew therefrom: showing a continuing pattern of ongoing violent conductand criminality. Respondentpoints to several cases where the erroneous introduction of escape evidence at the penalty phase was foundto be“relatively trivial” and, thus, harmless. (RB 8, quoting People v. Carrington (2009) 47 Cal.4" 145, 194 & People v. Farnam (2002) 28 Cal.4% 107, 189-190.) Appellant doubts the usefulness of such comparisonsin a capital case because each case and each defendantis different, the aggravating and mitigating circumstancesdiffer widely from case to case, and the sentencer must considerall of those factors in reaching its moral determination as to the appropriate sentence. In fact, respondent’s forfeiture argument contendsthat the admissibility of an escape is “dependent on the individual facts of the case[.]” (RB 63.) Whatis trivial in one case may be a lodestonein another. Moreover, the two “trivial” cases cited by respondentinvolved attempted escapes. In People v. Carrington, supra, 47 Cal.4% 145,the jury wasinstructed to view the evidence an escape attempt with caution, thereby “diminish[ing] the likelihood that the jurors gave significant weight to this evidence,” and the prosecutor explicitly argued that the escape evidence paled comparedto the otherfactors. (Id. at pp. 193-194.) In Farnam, the attempted escape was undoubtedly trivial as the defendant was “a repeat sexual predator and 18. Respondent quotes this Court’s opinion in People v, Wright (1990) 52 Cal.3d 367, 426: “We have never held that Boyd error a/one constituted reversible error.” (RB 65, emphasis in original.) As noted, Boyd errorrefers to the erroneous admission of aggravating evidence undersection 190.3, factor (b), not factor (a) as occurred here. But the result is the same: the trial court erroneously consideredandrelied upon significant evidence in aggravation, including adverse inferences drawn therefrom,in sentencing appellant to death. That error was not “alone”: the erroneous admission of aggravating evidence occutred three times. (Args. 2, 3 & 4.) _ 49 - murderer.” (People v. Farnam, supra, 28 Cal.4 at pp. 189-190.) In this case, unlike most capital cases, the reasoning of the sentenceris on the record. And that record, quoted for one-half of a page in respondent’s brief (RB 62), showsthat thetrial court considered and relied on an inference drawn from the walkaway incident as a basis for sentencing appellant to death. If the inference weretrivial, the trial court would not haveexplicitly relied uponit as a reason for imposing death. The death sentence must bereversed. (Chapman v. California (1967) 386 U.S.18, 24; People v. Brown (1988) 46 Cal.3d 432, 448.) If the Court believes that the error is not sufficient in andofitself to require reversal, then reversal is required whenit is viewed in the context of, or cumulatively with, the other penalty phase errors. (See Args. 2 & 3, ante.) // - 50 - CONCLUSION Forall of the reasons stated above, appellant’s convictions and death sentence must be reversed. DATED: December 31, 2013. MICHAELJ. HERSEK State Public Defender rf yh DOUGLAS WARD Senior Deputy State Public Defender Cal. State Bar No. 133360 1111 Broadway, Suite 1000 Oakland, California 94607 Phone: (510) 267-3300 Attorneys for Appellant -51- CERTIFICATE AS TO LENGTH OF BRIEF Pursuant to California Rules of Court, rule 8.630(b) (2), I herebycertify that I have verified, through the use of our word processing software, that this brief, excluding the tables, contains approximately 15,100 words. DATED: December31, 2013. DSS m/ DOUGLAS WARD Senior Deputy State Public Defender Attorney for Appellant VAENE SIVONGXXAY 52 - ATTACHMENTS TO APPELLANT’S REPLY BRIEF: TWO UNPUBLISHED FEDERAL OPINIONS AND A STATE BAR COURTOPINION Petilla v. Bank One LaFayette (9th Cir., Aug. 25, 1997, No. 96-17317) 122 F.3d 1073 Westlaw. 122 F.3d 1073, 1997 WL 559423 (C.A.9 (Cal.)) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 122 F.3d 1073, 1997 WL 559423 (C.A.9 (Cal.))) Cc NOTICE: THIS IS AN UNPUBLISHED OPIN- ION. (The Court's decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. Use FI CTA9 Rule 36-3 for rules regarding the citation of unpublished opin- ions.) United States Court of Appeals, Ninth Circuit. In re: Rodolfo Enriquez PETILLA,Debtor, Rodolfo Enriquez PETILLA,Appellant, v. BANK ONE LAFAYETTE,N.A., Appellee. No. 96-17317. ee Submitted Aug. 25, 1997)N FN** The panel unanimously finds this case suitable for decision without oral ar- gument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4. Decided Sept. 3, 1997. Appeal from the United States District Court for the Eastern District of California Robert E. Coyle, Chief District Judge, Presiding Before: SCHROEDER, FERNANDEZ, and RY- MER,Circuit Judges. * MEMORANDUMFN FN* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. *1 Chapter 7 debtor and attorney Rodolfo En- riquez Petilla appeals pro se the district court's af- firmance of the bankruptcy court's judgment fol- lowing a trial in favor of Bank One Lafayette, N.A. (“Bank One”). The bankruptcy court held that Page 1 Petilla's credit card debt to Bank One was nondis- chargeable under 11 U.S.C. § 523(a)(2)(A) and entered judgment for Bank One in the amount of $12,268.65 plus costs and interest. We have jurisdiction pursuant to 28 U.S.C. § 158(d). This court independently reviews the bank- ruptcy court's rulings on appeal from the district court. See Levin v. Maya Constr. Co. (In re Maya Constr. Co.), 78 F.3d 1395, 1398 (9th Cir.), cert. denied, 117 S.Ct. 168 (1996). We review the bank- ruptcy court's conclusions of law de novo and the court's findings of fact for clear error. See Alsberg v. Robertson (In re Alsberg), 68 F.3d 312, 314 (9th Cir.1995), cert. denied, 116 §.Ct. 1568 (1996). A finding of whether a requisite element of a section 523(a)(2)(A) is present is a factual determination that we review for clear error. See Anastas v. Amer- ican Sav. Bank (In re Anastas), 94 F.3d 1280, 1283 (9th Cir.1996). We affirm. Petilla contends that the bankruptcy court erred by finding that Petilla intended to defraud Bank One. This contention lacks merit. “[A] court may infer the existence of the debtor's [fraudulent] intent not to pay if the facts and circumstancesofa partic- ular case present a picture of deceptive conduct by the debtor.” Citibank (South Dakota), N.A. v. Eashai (In_re Eashai), 87 F.3d 1082, 1087 (9th Cir.1996). FN1. We have looked to certain non- exclusive factors to determine a debtor's intent to defraud. See American Express Travel Related Servs. Co. v. Hashemi (In re Hashemi), 104 F.3d 1122, 1126 n. 2 (9th Cir.) (listing the factors), cert. denied, 117 S.Ct. 1824 (1997). Here, there is evidence in the record to support the bankruptcy court's finding that Petilla intended to defraud Bank One: (1) Petilla made approxim- ately $12,000 in charges on his Bank One credit card close to the filing date of his bankruptcy peti- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 122 F.3d 1073, 1997 WL 559423 (C.A.9 (Cal.)) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 122 F.3d 1073, 1997 WL 559423 (C.A.9 (Cal.))) tion FN2. (2) Petilla's charges exceeded his ac- END OF DOCUMENT count's credit limit by $2,600; (3) On the same day, Petilla made multiple charges from different credit cards, withdrawing large amounts of cash on each card; (4) Petilla was an accountant and an attorney, who, by inference, knew he could attempt to avoid the charges by filing for bankruptcy; (5) Petilla was “loading up”debtprior to filing his bankruptcy pe- tition by making large charges on his various credit cards; and (6) Petilla used his credit primarily for gambling. Given the evidence in the record, the bankruptcy court did not clearly err by finding that Petilla did not have the intent to repay his debt to Bank One. See American Express Travel Related Servs. Co. v. Hashemi (In re Hashemi), 104 F.3d 1122, 1126 (9th Cir.), cert. denied, 117 S.Ct. 1824 (1997). FN2. Petilla made the following charges on his Bank Onecredit card priorto the fil- ing of his bankruptcy petition on July 20, 1994:(1) May 28 ($3,001.50); (2) June 10 ($3,001.00); (3) June 11 ($3,001.00); and June 11 ($3,099.99). Werefuse to consider Petilla's contention that the bankruptcy court erred by failing to make a de- termination that Bank Onejustifiably relied on his representations to repay, because Petilla failed to raise this issue below. See Sierra Club, Inc. v. Com- missioner, 86 F.3d 1526, 1532 n. 13 (9th Cir.1996) (issues not raised below will not be considered on appeal). *2 Petilla also contends that the bankruptcy court erred by failing to take into account evidence of his custom and habit to pay off his credit card debt. This contention lacks merit because the exhib- its Petilla wanted to admit attrial were received as evidence and considered by the bankruptcy court. AFFIRMED. C.A.9 (Cal.), 1997. In re Petilla 122 F.3d 1073, 1997 WL 559423 (C.A.9 (Cal.)) © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Petilla v. First Card National Bank (9th Cir., June 3, 1997, No. 96-17037) 116F.3d 485 Westlaw. 116 F.3d 485, 1997 WL 312545 (C.A.9 (Cal.)) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 116 F.3d 485, 1997 WL 312545 (C.A.9 (Cal.))) Cc NOTICE: THIS IS AN UNPUBLISHED OPIN- ION. (The Court's decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. Use FI CTA9 Rule 36-3 for rules regardingthe citation of unpublished opin- ions.) United States Court of Appeals, Ninth Circuit. Rudolfo E. PETILLA, Appellant, Vv. FIRST CARD NATIONALBANK,Appellee. No. 96-17037. * Submitted June 3, 1997 7N” FN** The panel unanimously finds this case suitable for decision without oral ar- gument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4. Decided June 9, 1997. Appeal from the United States District Court for the Eastern District of California, No. CV- 95-05592-REC; Robert E. Coyle, Chief District Judge. Before: NORRIS, LEAVY,and TASHIMA,Circuit Judges. * MEMORANDUMFN FN*This disposition is not appropriate for publication and may not becited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. *1 Chapter 7 debtor and attorney Rodolfo En- riquez Petilla appeals pro se the district court's af- firmance of the bankruptcy court's judgment fol- lowing trial in favor of First Card National Bank (“First Card”). The bankruptcy court held that Page | Petilla's credit card debt to First Card was nondis- chargeable under 11 U.S.C. § 523(a)(2)(A) and entered judgment for First Card in the amount of $7,038.87 plus costs andinterest. Wehave jurisdiction pursuant to 28 U.S.C. § 158(d). This court independently reviews the bank- ruptcy court's rulings on appeal from the district court. See Levin v. Maya Constr. (In re Maya Con- str. Co.), 78 F.3d 1395, 1398 (9th Cir.), cert. denied, 117 S.Ct. 168 (1996). We review the bank- ruptcy court's conclusions of law de novo and the court's findings of fact for clear error. See Alsberg v. Robertson (In re Alsberg), 68 F.3d 312, 314 (9th Cir.1995), cert. denied, 116 S. Ct. 1568 (1996). A finding of whether a requisite element of a section 523(a)(2)(A) is present is a factual determination we review for clear error. Anastas v. American Sav. Bank (In re Anastas), 94 F.3d 1280, 1283 (9th Cir.1996). Weaffirm. 1. 11 U.S.C. § 523(a)(2)(A) Section 523(a) (2)(A) precludes discharge of any debt obtained by “false pretenses, a false rep- resentation, or actual fraud.” To establish the nondischargeability of a debt under section 523(a)(2)(A), a creditor must show: (1) the debtor made the representations; (2) thatat the time he knew they were false; (3) that he made them with the intention and pur- pose of deceiving the creditor; (4) that the creditor relied on such representa- tions; (5) that the creditor sustained the alleged loss and damageas the proximateresult of the representa- tions having been made. Britton v. Price (In re Britton), 950 F.2d 602, 604 (9th Cir.1991). “These requirements mirror the elements of commonlaw fraud, and the creditor is © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 116 F.3d 485, 1997 WL 312545 (C.A.9 (Cal.)) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 116 F.3d 485, 1997 WL 312545 (C.A.9 (Cal.))) required to prove each by a preponderanceof evid- ence.” American Express Travel Related Servs. Co. v. Hashemi (In re Hashemi), 104 F.3d 1122, 1126 (9th Cir.1997) (citation omitted), cert. denied, 65 U.S.L.W. 3762 (U.S. May 19, 1997) (No. 96-1530). a. Fraudulentintent Petilla contends that the bankruptcy court erred by finding that Petilla intended to defraud First Card. This contention lacks merit. “[A] court may infer the existence of the debtor's fraudulent intent not to pay if the facts and circumstances ofa partic- ular case present a picture of deceptive conduct by the debtor.” Citibank (South Dakota), NA. v. Eashai {fa re Eashai), 87 F.3d 1082, 1087 (9th Cir.1996). FN1. We have looked to certain non- exclusive factors to determine a debtor's intent to defraud. See In re Hashemi, 104 F.3d at 1126 n. 2 (listing the factors). Here, there is evidence in the record to support the bankruptcy court's finding that Petilla intended to defraud First Card: (1) Petilla made over $7,000 in charges on his First Card credit card close N2 to the filing date of his bankruptcy petition; (2) Petilla was in poor financial condition because his monthly income was exceeded by his gambling debts, which he could not expect to pay from his in- come; (3) On the same day, Petilla made multiple charges from different credit cards, withdrawing large amounts ofcash on each card; (4) Petilla, who was an accountant and an attorney, was financially sophisticated; (5) Petilla was “loading up”debtpri- or to filing his bankruptcy petition by making large charges on his various credit cards; and (6) Petilla used his credit primarily for gambling. Given the evidence in the record, the bankruptcy court did not clearly err by finding that Petilla did not have the intent to repay his debt to First Card. See In re Hashemi, 104 F.3d at 1126. FN2. Petilla made the following charges on his First Card credit card prior to the filing of his bankruptcy petition on July Page 2 20, 1994:(1) June 3 ($35.54); (2) June 7 ($23.68); (3) June 11 ($3,099.99); June 12 ($3,099.99); June 24 ($133.84); and July 4 ($524.99). b. Justifiable reliance *2 We refuse to consider Petilla’s contention that the bankruptcy court erred by failing to make a determination that First Card justifiably relied on his representations to repay, becausePetilla failed to raise this issue below. See Sierra Club. Inc. v. Commissioner, 86 F.3d 1526, 1532 n. 13 (9th Cir.1996) (issues not raised below will not be con- sidered on appeal). 2. Custom and habit evidence Petilla contends that the bankruptcy court erred by failing to take into account evidence of his cus- tom and habit to pay off his credit card debt. This contention lacks merit because the exhibits Petilla wanted to admit at trial were received as evidence and considered by the bankruptcy court. FN3. To the extent that Petilla contends that the bankruptcy court failed to consider this evidence to show that Petilla had the intent to repay his debt, we reject this con- tention. As stated above, the bankruptcy court's finding that Petilla did not intend to repay his debts was not clearly erroneous. 3. Bankruptcy court's jurisdiction to enter judgment after determining dischargeability of the debt Petilla contends that the bankruptcy court lacked jurisdiction to enter a monetary judgment after it determined that Petilla's debt was nondis- chargeable. Werejected this contention in Cowen v. Kennedy (In re Kennedy), 108 F.3d 1015, 1017 (9th Cir.1997). AFFIRMED. C.A.9 (Cal.), 1997. Petilla v. First Card National Bank 116 F.3d 485, 1997 WL 312545 (C.A.9 (Cal.)) END OF DOCUMENT © 2012 Thomson Reuters, No Claim to Orig. US Gov. Works. Matter ofPetilla (Rev. Dept. 2001) 4 Cal. State Bar Ct. Rptr. 231 Westlaw, Page 1 Not Reported in Cal.Rptr.2d, 2001 WL 664247(Cal.BarCt.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.Bar Ct.)) Cc Review Department of the State Bar Court of Cali- fornia. In the Matter of Rodolfo Enrique PETILLA, A Memberofthe State Bar. No. 96-O-05725. May14, 2001. Donald R. Steedman, Office of the Chief Trial Counsel, The State Bar of California, San Fran- cisco, for the State Bar of California. Rodolfo Enrique Petilla, in pro. per., Fresno, for Respondent. OPINION ON REVIEW WATAI,J. *1 Respondent Rodolfo Enrique Petilla F seeks our review of a hearing judge's decision find- ing that respondent incurred credit card debts of $19,327 without intending to repay them. Respond- ent incurred those debts almost exclusively by ob- taining cash advances on twoofhis credit cards. He admittedly used and lost those cash advances while gambling. Almost immediately after losing the money, respondent attempted to discharge the debts in bankruptcy. The hearing judge concluded that, by incurring those debts without intending to repay them, respondent committed acts in violation of the proscription of committing acts involving moral turpitude, dishonesty, or corruption set forth in Business and Professions Code section 6106. N1 FN1. Respondent was admitted to the prac- tice of law in the State of California on December 12, 1983, and has been a mem- ber of the State Bar since that time. FN2. All further statutory references are to the Business and Professions Code unless otherwise indicated. In light of the found acts of moral turpitude, the hearing judge recommendedthat respond- ent be suspended from the practice of law for two years, that execution of the suspension be stayed, and that respondent be placed on probation for two years with conditions, including that he be actually suspended during the first sixty days of his proba- tion and until he makesrestitution to the credit card company that he hasstill not repaid. The hearing judge also recommended that, while respondentis on probation, he be ordered not to gamble andto at- tend Gamblers Anonymous meetings at least two times a week. FN3. The State Bar also charged that this same conduct violated respondent's stat- utory duty, under section 6068, subdivision (a), to support the laws of the United States and this state, but the hearing judge dis- missed the charge as duplicative of the sec- tion 6106 violation. (See In the Matter of Whitehead (Review Dept.1991) 1 Cal. State Bar Ct. Rptr. 354, 369.) The State Bar does not challenge this dismissal on review, and weadoptit on de novo review, but clarify that it is with prejudice (Rules Proc. of State Bar, rule 261(a)). On review, respondent asserts the following four points of error: (1) that the evidence is insuffi- cient to warrant discipline; (2) that the hearing judge's decision is void because it was not timely filed and because it was, according to respondent, not properly served on him; (3) that the hearing judge's recommendedrestitution requirementis il- legal; and (4) that there is no rational basis to sup- port the hearing judge's recommended requirement that respondent attend Gamblers Anonymous meet- ings. If we sustain either or both of his first two points of error, respondent requests that we reverse the hearing judge's decision and dismiss this pro- ceeding. If we do not sustain either of his first two points, respondent alternatively requests that we modify the hearing judge's discipline recommenda- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 Not Reported in Cal.Rptr.2d, 2001 WL 664247(Cal.Bar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.Bar Ct.) tion to delete either or both of the requirements that respondent makerestitution to his unpaid creditor and that he attend Gamblers Anonymous meetings. The State Bar argues that all of respondent's points of error are meritless and urges us to adopt the hearing judge's findings and discipline recom- mendation. After independently reviewing the record (Cal. Rules of Court, rule 951.5; Rules Proc. of State Bar, rule 305(a); In re Morse (1995) 11 Cal.4th 184, 207), we agree with and sustain re- spondent's fourth point of error in which he con- tends that there is no rational basis to support the recommendation that he be ordered to attend Gam- blers Anonymous meetings, but we reject his other three points of error. We adopt the hearing judge's findings of fact (with minor modifications) and conclusion that respondent is culpable of violating section 6106 as charged. In addition, we adopt the hearing judge's conclusions as to aggravating and mitigating circumstances. FN4. All further references to rules are to these Rules of Procedure of the State Bar unless otherwise indicated. *2 Because there is no basis to support the re- commended requirement that respondent attend Gamblers Anonymous meetings, we delete that re- quirement from the hearing judge's discipline re- commendation. We also independently delete from the hearing judge's discipline recommendation the provision recommending that respondent remain on actual suspension until he makesrestitution to the credit card company that he hasstill not repaid and, instead, recommend that respondent be required to makerestitution to that company within the first 90 days of his probation. With these two modifications and a few additional modifications of a minor nature, we adopt the hearing judge's discipline re- commendation. I. The Evidence Is Sufficient to Warrant Discipline. After independently reviewing the evidence, we adopt the hearing judge's findings of fact with minor modifications and hold that the evidence is sufficient to warrant discipline. Accordingly, we re- ject respondent's first point of error. The key issue in this proceeding is whether, from May 28, 1994, to July 4, 1994, respondent made charges and obtained cash advances on two credit cards totaling $19,327 without intending to repay the charges and advances. Unquestionably, the act of borrowing money withoutintending to re- pay it is dishonest and involves moral turpitude. Section 6106 provides that an attorney's commis- sion of an act of dishonesty or of an act involving moral turpitude or corruption is the basis for the at- torney's suspension or disbarment regardless of whether the attorney committed the act while acting in the capacity of an attorney or while engaged in the practice of law. At least in the absence of an admission by the attorney, proving that he or she borrowed money without intending to repay it is rarely, if ever, cap- able of being proved with direct evidence. Such in- tent may be proved by direct or circumstantial evid- ence. (Geffen vy. State Bar (1975) 14 Cal.3d 843, 853, citing Zitny v. State Bar (1966) 64 Cal.2d 787, 792.) Likewise, an attorney's culpability is not re- quired to be established by direct evidence; circum- stantial evidence is sufficient so long as it is clear and convincing. (Medoff v. State Bar (1969) 71 Cal.2d 535, 550-551; Utz v. State Bar (1942) 21 Cal.2d 100, 103 [charges of professional miscon- duct may be established upon circumstantial evid- ence”].)- In the present proceeding, the only direct evid- ence on the issue of whether or not respondentin- tended to repay the $19,327 in credit card debts at the time he incurred them is respondent's testimony. Respondent testified that, when he made the charges and obtained the cash advances totaling $19,327, he intended to repay them in full with either his gambling winnings, his earned income, or both. Healso testified that, at the time he incurred the debts, he had sufficient “liquid resources” with © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (CalBar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.BarCt.)) which to repay them in full. In addition, respondent asserts that, at the time, his home was worth more than $100,000 and that his mortgage balance was only $69,373 so that he had home equity ofa little more than $30,000. *3 In his decision, the hearing judge did not ex- pressly state whether he believed or rejected re- spondent's testimony that he intended to repay the credit card debts when he incurred them. Nonethe- less, because the hearing judge found that respond- ent incurred the credit card debts without intending to repay them,it is clear that he rejected respond- ent’s testimony, albeit implicitly. After independ- ently reviewing the record and giving deference to the hearing judge's implicit rejection of respond- ent's testimony (rule 305(a)), we also reject re- spondent's testimony that he intended to repay the $19,327 in credit card debts when he incurred them. Of course, our rejection of respondent's testimony doesnot,in itself, create affirmative evidence to the contrary. (In the Matter of Anderson (Review Dept.1997) 3 Cal. State Bar Ct. Rptr. 775, 785, and cases there cited.) Because we have rejected respondent's testi- mony and because there is no other direct evidence in the record regarding whether or not respondent intended to repay the $19,327 in credit card debts when heincurred them, we must review the record and determine whether the hearing judge's findings that respondent incurred the debts without intend- ing to repay them is supported by clear and convin- cing circumstantial evidence. Because wefind such clear and convincing evidence, we shall adopt the hearing judge's findings. From approximately late 1983 to early 1992, respondent practiced law in a law firm or partner- ship type ofpractice. Then, in April 1992, he began practicing law as a sole practitioner. Respondent's practice is primarily criminal defense. He is a State Barcertified specialist in criminal law. Even though respondent was neverlicensed as a Certified Public Accountant (CPA) in California, he took and passed the California CPA Examina- tion before he incurred the $19,327 in credit card debts. Furthermore, before he incurred the credit card debts in question, respondent was li- censed as a CPA in the Philippines. In addition to his extensive knowledge of accounting and finan- cial matters as evidenced by his passage of the California CPA Examination and CPAlicensing in the Philippines, respondentis and was before he in- curred the questioned credit card debts very soph- isticated in accounting and financial matters. Re- spondent was formerly employed as the chief ac- countant for Longs Drug Store; district accountant of East Bay Municipal Utility District; director of finance and accounting of the Federal Land Bank in Berkeley; and a director, treasurer, chief account- ant, and vice president of various major corpora- tions in the United States including Bicoastal Fin- ancial Corporation, a corporate “trading company” that has purchased other companies for as much as $1.6 billion. FN5. According to respondent, he never received his California CPA license be- cause he did not want to complete the ac- counting experience requirement(i.e., the requirement that he practice public ac- counting under the supervision of a li- censed CPA for a specified number of years). In addition, respondent is a “twice-certified college instructor” and has taught part-time at a community college in California for many years—both before and after he incurred the ques- tioned credit card debts. *4 Respondent claims that his gambling was limited to playing blackjack, that he gambled only in various Nevada casinos, and that he went gambling no more than three or four times a year except in 1994 when he wentatleast ten times from January to July 4. In respondent's related bank- ruptcy proceeding, which is discussed below, he testified that he went gambling at Nevada casinos at least once or twice a week in Mayto July of 1994. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 Not Reported in Cal.Rptr.2d, 2001 WL 664247(Cal.Bar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.BarCt.)) Respondentalso testified that he usually took with him $5,000 or $10,000 in cash for gambling each time he went to Nevada and that he once took as much. as $24,000. When respondent would lose all of the gambling money he took with him, it would ordinarily not upset him. He opines that a $2,000 to $3,000 gambling loss at Lake Tahoe or Las Vegas was the equivalent to the cost of a boat cruise for him andhis wife. Respondentclaims that, except in 1994, he has always been able to pay his debts (including his gambling debts). In fact, before the summer of 1994, respondent routinely paid off large credit card balances in full when he received the bills (according to respondent, he did this to avoid hav- ing to pay any interest); he did not ordinarily make installment payments. On July 20, 1994, respondent filed a voluntary petition for bankruptcy under chapter 7 of the Bankruptcy Code in which he sought to discharge $57,054 in debts (almost all of which were gambling debts). As we understand re- spondent's position, respondent was forcedto file for bankruptcy at the age of 54 because of a “free fall” that he experienced at the blackjack tables in late May 1994 to early July 1994. From the record, respondent's “free fall” may appropriately be de- scribed as a losing streak during which he lost tens of thousandsofdollars. The record does not disclose how much money respondentactually lost during his “free fall.” Pre- sumably, this is because respondent failed to keep records of his winnings and losses. What the record does disclose is that, during the 12—-month period preceding his bankruptcy filing, respondent repaid at least $114,611 in gambling debts, which is cal- culated as follows: (1) approximately $62,111 in cash advances that respondent obtained on his cred- it cards (see Exhibit B to respondent's “Appellant's Opening Brief’); and (2) $52,500 in “gambling markers” from three Nevada casinos (see Exhibit C to respondent's “Appellant's Opening Brief”). In addition, the record establishes that respondent incurred gambling losses of at least $111,000 dur- ing that same 12-—month periodFN? The record does not clearly disclose whether this $111,000 in gambling losses includesall or part of the $57,054 in debts that respondentlisted for discharge on his bankruptcy petition. FN6. A markeris the functional equivalent of a cash advance from a casino. Casinos do not make actual cash advances(i.e., ad- vances of United States currency); instead they issue casino chips that have specific dollar amounts assigned to them, which they accept in lieu of cash when the bor- rowerplacesa bet. FN7. Respondentstates on form 7 of his bankruptcy petition that this figure of $111,000 is an estimate of his gambling losses based on a method he denominates as “a net worth method.” In addition, the record discloses that respond- ent incurred the $57,054 in debts that he listed on his bankruptcy petition during a 37-day period from May 28, 1994, to July 4, 1994. Of this $57,054 in listed debts, $25,000 was for gambling markers from three Nevada casinos and the remain- ing balance of $32,054 was for debts he incurred on four of his credit cards. Of the $32,054 in credit card debts, approximately $30,464 was for cash ad- vances and related charges and fees and approxim- ately $1,590 was for miscellaneous charges and purchases. According to respondent, he did not bor- row the $25,000 in gambling markers until after he had obtained the cash advancestotaling approxim- ately $30,464 and lost them gambling. *5 After respondent filed for bankruptcy, three of the four credit card companies filed adversarial proceedings against him in bankruptcy court al- leging that his debts to them were nondischargeable under title 11 United States Code section 523(a)(2)(A) (hereafter section 523(a)(2)(A)). Sec- tion 523(a)(2)(A) provides that debts incurred’ by false pretenses, false representations, or actual fraud are to be declared nondischargeable. To es- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (CalBar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.BarCt.)) tablish a debt's nondischargeability under section 523(a)(2)(A), a creditor must establish five ele- ments. (American Express Travel Related Services Co. v. Hashemi (In re Hashemi ) (9th Cir.1996) 104 F.3d 1122, 1125, hereafter Hashemi.) Those five elements are identical to the elements of common law fraud and are as follows: (1) that the debtor madea representation; (2) that the debtor knew the representation was false; (3) that the debtor made the false representation with the intent and purpose of deceiving the creditor (this element is commonly referred to as “fraudulent intent”); (4) that the cred- itor relied on the debtor's false representation; and (5) that the creditor sustained a loss as a proximate result of the false representation. (/bid.) A creditor is required to establish these elements only by a preponderance of the evidence. (Grogan v. Garner (1991) 498 U.S. 279, 291.) One of the three credit card companies moved to dismiss its adversarial proceeding. The bank- ruptcy court granted that company's motion to dis- miss, and respondent's debts to that third credit card company and his debts to the fourth credit card companyas well as his gambling markers to three casinos were thereafter discharged when the bank- ruptcy court filed its order of discharge on October 10, 1994. The other two credit card companies main- tained their adversarial proceedings against re- spondent and pursued their claims against him to judgment. Those two companies are Bank One and First Card. Between May 28, 1994, and July 4, 1994, respondent made charges and obtained cash advancestotaling $12,268 on his credit card from Bank Oneand totaling $7,059 on his credit card from First Card. Respondent's debts to these two companies total $19,327 and are the subject ofthis disciplinary proceeding. Respondent's remaining debts of $37,727, which were discharged in bank- ruptcy, are not questioned or otherwise challenged in this disciplinary proceeding. Nonetheless, as noted below, we do consider respondent's debts on the third and fourth credit cards for purposes of de- termining whether he had the intent to repay the $19,327 in questioned debts on his credit cards from Bank OneandFirst Card. FN8. Respondent's remaining $37,727 in debts are calculated as follows: $4,015 in debts on the third credit card, $8,712 in debts on the fourth credit card, and $25,000 in gambling markers. Respondentwasthe only witness in each ofthe adversary proceedings. Because there is no right to jury trial in dischargeability proceedings (Hashemi, supra, 104 F.3d at p. 1124), the bankruptcy court wasthe finder of fact in each of these proceedings. In determining whether respondent's debts to Bank One and First Card were nondischargeable, the bankruptcy court applied the 12 non-exclusive factors that the Bankruptcy Appellate Panel of the Ninth Circuit set forth in Jn re_ Dougherty (Bankr.9th Cir.1988) 84 B.R. 653, 657. FN9. The 12 Dougherty factors are (1) the length of time between the credit card charges and the filing for bankruptcy, (2) whether the debtor consulted an attorney before making the credit card charges, (3) the number of charges made, (4) the amounts of the charges, (5) the debtor's financial condition at the time the charges were made, (6) whether the debtor's charges exceeded the card's credit limit, (7) whether the debtor made multiple charges on one day, (8) whether the debtor was employed at the time the charges were made, (9) the debtor's continuing prospects for employment, (10) the financial sophist- ication of the debtor, (11) whether there was a sudden changein the debtor's buying or spending habits, and (12) whether the purchases were for necessities or luxuries. (84 B.R.at p. 657.) *6 In Bank One's adversarial proceeding, the bankruptcy court applied the 12 factors and found that respondent engagedin actual fraud whenhein- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 6 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (CalBar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.BarCt.)) curred the $12,268 in debts on his Bank Onecredit card and, accordingly, entered a judgmentdeclaring respondent's debts to Bank One nondischargeable under section 523(a)(2)(A)/N! FN10. Respondent attacks this fraud find- ing on the asserted grounds that the bank- ruptcy court did not address or find each of the five elements of fraud. (See Hashemi, supra, 104 F.3d at p. 1125 [creditors must establish each of the five elements of com- mon law fraud].) Respondent contends that, because the bankruptcy court's fraud finding is defective, it is unfair to use it against him in this disciplinary proceeding. Wedo not address respondent's attacks on the bankruptcy court's fraud finding be- cause the hearing judge did not and we do not give it preclusive effect under prin- ciples of collateral estoppel. In addition, as noted below, reliance upon the bankruptcy court's fraud finding is not necessary to es- tablish respondent's culpability for the charged section 6106 violations. In First Card's adversarial proceeding, the bankruptcy court also found that respondent en- gaged in actual fraud when he incurred the $7,059 in debts on his First Card credit card and, accord- ingly, entered a judgment declaring respondent's debts to First_Card nondischargeable under section 523(a)(2)(A)..N! Even though Bank Onedid not do so, First Card sought a money judgmentagainst respondent from the bankruptcy court. Con- sequently, the bankruptcy court awarded First Card a money judgment against respondent in the amount of $7,059. The bankruptcy court also awardedFirst Card its costs and statutory interest. FN11. Respondent also attacks this fraud finding on the asserted grounds that the bankruptcy court did not address or find each of the five elements of fraud. (See our discussion in footnote 10 above.) FN12. The bankruptcy court's judgment was actually for $7,038.87. We obtained the $7,059 figure from the “schedule of current position on certain dates” that re- spondent prepared and which was admitted in the hearing department as Exhibit 2. We consider the $20.13 difference between the two figures to be immaterial and, there- fore, do not address the issue further. Respondent appealed the two bankruptcy court judgments to the United States District Court for the Eastern District of California. But the district court affirmed both judgments. Respondent then appealed to the Ninth Circuit Court of Appeals. And, in separate unpublished memorandum opin- ions, the Ninth Circuit affirmed both of the bank- ruptcy court's judgments. Respondent sought recon- sideration in the Ninth Circuit, which was denied. Thereafter, the Ninth Circuit's memorandum opin- ions becamefinal and the bankruptcy court's judg- ments against respondent becamefinal. Because the bankruptcy court's findings that re- spondent committed actual fraud when he incurred the $19,327 in debts on his Bank One and First Card credit cards were made under the preponder- ance of the evidence evidentiary standard, and not the clear and convincing evidentiary standard that is applicable in attorney disciplinary proceedings, the hearing judge correctly declined to apply prin- ciples of collateral estoppel to bind respondent with those civil findings in this proceeding. (Jn the Mat- ter of Kittrell (Review Dept.2000) 4 Cal. State Bar Ct. Rptr.__, __ [typed opn.p. 12]; In the Matter ofApplicant A (Review Dept.1995) 3 Cal. State Bar Ct. Rptr. 318, 329.) Nonetheless, because the bank- ruptcy court's findings are supported by substantial evidence, they are entitled to a strong presumption of validity in the State Bar Court. (Lefner v. State Bar (1966) 64 Cal.2d 189, 193; In the Matter ofAp- plicant A, supra, 3 Cal. State Bar Ct. Rptr. at p. 325.) Contrary to respondent's contention, the hear- ing judge, in making his culpability findings, cor- rectly reweighed the evidence and testimony from © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 7 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (Cal.BarCt.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.Bar Ct.)) the two adversarial proceedings under the clear and convincing evidentiary standard and gave respond- ent a fair opportunity in this proceeding to contra- dict, temper, or explain the evidence and testimony from the adversarial proceedings with additional evidence. (In the Matter of Kittrell, supra, 4 Cal. State Bar Ct. Rptr. at p. ___ [typed opn. pp. 12-14].) In addition, the hearing judge correctly permitted the State Bar to present additional evid- ence on the issue of respondent's culpability. (Jbid.) *7 As we noted above, the dispositive issue in this proceeding is whether respondent made the charges and obtained the cash advances totaling $19,327 on his Bank One and First Card credit cards without intending to repay them. As we also noted above, the act of borrowing money without intending to repay it involves dishonesty and moral turpitude as a matter of law. Thus, to establish re- spondent's culpability for the charged section 6106 violations, the State Bar need only prove that he in- curred these $19,327 in credit card debts without intending to repay them. Unlike Bank One andFirst Card who were required to prove the five elements of common law fraud to obtain a judgment declar- ing that respondent's debts to them are nondis- chargeable under section 523(a)(2)(A), the State Baris not required to establish each ofthe five ele- ments of common law fraud to establish the charged violations of section 6106. After he weighedall the evidence, the hearing judge was “‘clearly convinced that Respondent bor- rowed without an intent to repay the money, which is an act of dishonesty.” Our independent review of the record also leads usto this conclusion. While this is not a dischargeability proceeding under the bankruptcy code, we do consider the 12 Dougherty factors to be a helpful guide in determ- ining whether respondent incurred the $19,327 in credit card debts without intending to repay them. “(T]he Dougherty factors provide a useful means of objectively discerning intent based on the probabil- ities of human conduct.” (Household Credit Serv.v. Ettell (in re Ettell) (9th Cir.1999) 188 F.3d 1141, 1145.) Even though we view the objective infer- ences drawn from a consideration of the Dougherty factors to be highly probative of whether an attor- ney incurred a debt without intending to repayit, we do not view them as dispositive. (Cf. Ettell, supra, 188 F.3d at p. 1145.) The 12 factors “are non exclusive; none is dispositive, nor must [an attor- ney's] conduct satisfy a minimum numberin order to prove [lack of] intent [to repay].” (Hashemi, supra, 104 F.3d at p. 1125.) The length of time between the credit card debts andthefiling of bankruptcy. Respondentincurred all but a small portion of the $19,327 in questioned debts on his Bank One and First Card credit cards by obtaining seven cash advances on those cards between May 28, 1994, and July Ae 1994. Those seven cash advancestotal $18,828.) N13 FN13, The remaining portion of the $19,327 total consists of a miscellaneous charge of $141 on June 21, 1994,a miscel- laneous charge of $134 on June 24, 1994, and interest and service charges of $224. Respondent correctly points out that he ob- tained most of these seven cash advancesduring the three-day period from June 10, 1994, to June 12, 1994. During that three-day period, respondent ob- tained five out of the seven advances. Those five advancestotal $15,302. Respondent had previously obtained one of the seven advances on May 28, 1994, That advance was for $3,001. Thus, at the end of the three-day period on June 12, 1994, re- spondent had obtained six of the seven advances totaling $18,303 ($15,302 plus $3,001) on his Bank One and First Card credit cards. Respondent ob- tained the seventh and last advance on July 4, 1994. That advance wasfor $525. *8 With respect to the debts totaling $12,727 that respondent incurred on his other two credit cards between May 28, 1994, and July 4, 1994, all but a small portion of the $12,727 were for cash ad- vances. Specifically, respondent obtained five cash © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 8 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (Cal.Bar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.Bar Ct.)) advances totaling $11,350 on those two credit cards. Respondenttestified that, by early July 1994, he had lost not only all of the $18,828 in cash ad- vances he obtained from his Bank One and First Card credit cards, the $11,350 in cash advances he obtained from his other two credit cards, and the $25,000 in gambling markers listed on his bank- tuptcy petition, but also all of his remaining funds and liquid assets. Respondent claims that, after he received his July credit card billing statements, he concluded that he was forced to file for bankruptcy. Andhe did so on July 20, 1994, without attempting to work out a repayment plan with even one of his creditors. When respondent wasasked in the hearing de- partment whether he contacted any of the credit card companies in an attempt to work out a repay- ment plan before he filed for bankruptcy, he answered: “No. They were contacted by the bank- ruptcy court.” And, when he was asked whether he considered paying off the credit card debts in in- stallments before he filed for bankruptcy, he also answered: “No.” Moreover, respondent testified that he was not aware that he could make minimum monthly payments on his credit card debts instead of paying them off in full when he received the bills; he testified that he did not finally become aware of the monthly payment option “until all of this came to a head. When we were preparing for trial, then I began to look at this.” He further testi- fied that he “was not fully conscious of [the credit card companies’ minimum payprovisions]. I don't know howelse to put that. And my not being fully conscious ofit is probably because I didn't care. I owed the money.I paid it in full.” Not only is re- spondent's testimony notbelievable, it is inconsist- ent with his claim that he always paid his credit cards bills in full to avoid having to pay any in- terest. It is also inconsistent with his testimony in the bankruptcy court. Respondenttestified in Bank One's adversarial proceeding: “And you notice on [Bank One's billing] statement, and I would represent that on all these statements until I got into real serious trouble in June and July [1994] I never even had to pay any late fees, a late charge. I always paid the thing on time. Okay. According to the billing cycle. [{] Now, not only that [Bank One's] bills as well as bills of all the other credit companies always had an amount called a minimum payment small amount,and I didn't even dothat. I always paid the entire statement when due....” (Emphasis added.) In his closing arguments in Bank One's ad- versarial proceeding, respondent argued: “Now, on the date that I borrowed from [Bank One] I had enough funds to pay them and I havehabitually, ha- bitually paid [Bank One] and all the other credit card companies on time in full although their state- ments a/ways said that I could pay the small min- imum payment every month and that they would be satisfied with that. [§] I always paid them in full un- til the really serious problem came up [in June and July 1994], and that is [evidence] of my intention, Your Honor, to pay.It's a habit, it's a custom and I habitually pay them ontime in full even though un- der the terms of their own statements that they gave me, I could have paid just a little bit at a time.” (Emphasis added.) Respondent's testimony and closing arguments in bankruptcy court simply don't. make sense unless respondent knew for years that when he got a credit card billing statement (including Bank One's statements) he had the op- tion of either paying the amount due in full to avoid having to pay any interest or making at least the stated minimum paymentandthusincurinterest charges on the unpaid balance. FN14. As we noted above, respondent even claims that, before the summer of 1994, he alwayspaid his credit cardsoff as soon as he received the statements to avoid having to pay anyinterest. Whether respondent consulted another attorney concerning bankruptcy before the debts were in- curred, and respondent's financial sophistication. *9 There is no evidence that respondent consul- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 9 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (Cal.Bar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.Bar Ct.)) ted a bankruptcy attorney before he incurred the $19,327 in questioned credit card debts. Neverthe- less, we find that, at a minimum, respondent knew that he could attempt to avoid repaying these debts by filing a bankruptcy petition. Furthermore, in light of respondent's legal training and extensive accounting and financial experience as outlined above, his claim of being completely ignorant of bankruptcy law is simply implausible. The numberand amountof respondent's charges. As indicated above, on his credit cards from Bank One and First Card, respondent obtained sev- en cash advancestotaling $18,828 and made two miscellaneous charges totaling $275 ($141 plus $134) right before filing for bankruptcy. Six of those seven cash advances were for more than $3,000. Furthermore, three of the seven advances totaling $9,201 were obtained on the same day—June 11, 1994. And, as indicated above, respondent also ob- tained five cash advances totaling $11,350 on his other two credit cards. Three of the five cash ad- vances were for more than $3,000. Furthermore, three of the five advancestotaling $7,725 were ob- tained on the same day—June 11, 1994. Thus, on June 11, 1994, respondent obtained six cash ad- vancestotaling $16,926 on his four credit cards. Whether respondent's charges and cash advances were abovehiscredit limits. After obtaining the seven cash advancestotal- ing $18,828 on his Bank One and First Card credit cards, respondent had only $1,350 of his $8,500 credit limit remaining on his Bank One credit card and had exceeded his $9,500 credit limit on his First Card credit card by $2,770. Furthermore, after obtaining the five cash advances totaling $11,350 on his third and fourth credit cards, respondent had exceededhis credit limits on each of those cards. Respondent's financial condition at the time of the charges and cash advances. Respondent also argues in his “Appellant's Opening Brief” that he “always had sufficient li- quid resources in Fresno Banks on each date that he received cash advances from Bank One and First Card. On [June 12, 1994], the total owed to these two credit card companies was $18,362.69 against $35,432.45 in liquid resources. (Exhibit A). Even considering all credit card charges, including those whose dischargeability in bankruptcy were not questioned, on June 12, 1994, Respondent had a total of $29,293.50 versus liquid resources of $35,432.45.” According to respondent, the fact that he allegedly had sufficient liquid resources with which to repay the cash advances from Bank One and First Card on the day he obtained them, strongly supports his claim that he intended to re- pay the debts in full. We cannot agree. Respond- ent's factualassertion itself is misleading. Respond- ent did not have $35,432.45 “in liquid resources in Fresno Banks.” Of this $35,432.45, $14,700 was only line ofcredit at First Interstate Bank. Yet, on “Exhibit A” to his “Appellant's Opening Brief” and on State Bar Exhibit 2, respondentlists that line of credit as though it were a bank accountat First In- terstate Bank in which he had $14,700 on deposit. (While respondent testified that his “liquid re- sources” included a $14,700 credit limit, he also testified that “liquid resources” were his “cash as- sets” and that“liquid resources” are what wasin his bankaccounts.) *10 Moreover, respondent's comparison of his $18,362.69 in cash advances from Bank One and First Card as of June 12, 1994, to his alleged $35,432.45 in liquid resources on June 12, 1994, does not provide an accurate picture of his financial condition on that date. Using respondent's liquid as- set comparison method, an accurate picture of re- spondent's financial condition on June 12, 1994, may be obtained by comparinghis total credit card debts (i.e., his debts on all four of the credit cards; not just his debts on his Bank One and First Card credit cards) to his total] liquid assets (i.¢., cash on hand, cash in the bank, and marketable securities). On June 12, 1994, respondent's total credit card debts were $29,293.50, and his fotal liquid as- sets were $20,732.45 ($35,432.45 less $14,700). © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 10 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (Cal.Bar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.BarCt.)) Thus, on June 12, 1994, respondent's debts on all four of his credit cards exceeded his liquid assets by $8,561.05. In other words, excluding the alleged equity in respondent's home, respondent had a neg- ative net worth of $8,561.05 on June 12, 1994. FN15. This figure includes respondent's $18,303 total cash advances on his credit cards from Bank One andFirst Card as of June 12, 1994, plus $10,931 in charges and cash advances that respondent had incurred on his third and fourth credit cards as of June 12, 1994. According to respondent's bankruptcy petition, he incurred the $25,000 in gambling markers listed in his bankruptcy petition during the 10-day period between June 25, 1994, and July 3, 1994, which was after he had obtained all but the seventh of the questioned cash advances on his Bank One and First Card credit cards. Thus, respondent argues that we should not consider these $25,000 in mark- ers when determining his financial condition when he obtained the first six of the seven questioned cash advances. We agree. The fact that respondent borrowed an additional $25,000 days after he had already obtained the first six cash advancesisirrel- evant to respondent's financial condition when he obtained thosefirst six advances. However, the $25,000 in markers are relevant to determining respondent's financial condition on July 4, 1994, when he obtained the seventh and last of the questioned cash advances. According to Ex- hibit A to his “Appellant's Opening Brief,” re- spondent's liquid resources totaled $20,082 on July 4, 1994; accordingly, his liquid assets on that day totaled only $5,382 ($20,082 less $14,700). Thus, before respondent obtained the seventh cash ad- vance on July 4, 1994, his total debts of $56,529 exceeded his actual liquid assets of $5,382 by $51,147. In other words, excluding the alleged equity in respondent's home, respondent had a neg- ative net worth of $51,147 before he obtained the questioned cash advance, which as noted above was for $525. Wereject respondent's description of the $525 cash advance as small and not material. Regardless of the amount, obtaining a cash advance withoutin- tending to repay it is dishonest and involves moral turpitude. Wealso consider highly relevant the facts that, on June 10, 1994 (which was the same day that re- spondent obtained a $3,001 cash advance from Bank One), respondent repaid a $5,000 marker to a Las Vegas casino; and (2) that, on June 11, 1994 (which is the same day on which respondent ob- tained six cash advances totaling $16,926 on his four credit cards), respondent repaid markers total- ing $10,000 to two Las Vegascasinos. Thus,it is clear that respondent “effectively” used, if not actu- ally used, all or part of these advances to repay preexisting gambling debts. *11 Moreover, respondent's claim that he in- tended to repay the cash advances with his gambling winnings is not convincing. Respondent's alleged intent or hope to repay the cash advances from his gambling winnings is too speculative and unreasonable to constitute or evidence intent to re- pay. (See American Express Travel Related Servs. Co. v. Nahas (In re Nahas ) (Bankr.S.D.Ind.1994) 181 B.R. 930, 934; In re Hansbury (Bankr,D,Mass.1991) 128 B.R. 320; but see AT & T Universal Card Servs. v. Alvi (In re Alvi ) (Bankr.N.D.111.1996) 191 B.R. 724, 734 [debtor's hope to repay debts from gambling winnings is evidence of intent to repay].) This is particularly true in this case where respondentis obtaining large cash advances on the same day he is repaying gambling debts in the form of casino markers. And it is particularly true in this case where respondent has not proffered any documentary evidence to sup- port his claims that, before his “free fall,” he was an experienced and “successful” or “winning” blackjack player. Moreover, in light of the fact that respondent never kept any records of his gambling winnings and losses, any hope of repaying any por- tion of his credit card debts with gambling win- nings is unreasonable. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 11 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (Cal.BarCt.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.BarCt.)) Wedo notfind respondent's claim that he in- tended to repay the cash advances with his income to be convincing evidence of intent to repay. Without question, his income was inadequate and unpredictable in relation to the large amount of debt and net gambling losses he was incurring for, at least, the 12 months prior to the filing of his bank- ruptcy petition. This strongly suggests that respond- ent incurred the $19,327 in debts to Bank One and First Card without intending to repay them. During the last eight months of 1992 (which wasthe first year in which respondent began practi- cing law as sole practitioner), respondent earned a net incomefrom practicing law of $6,358.15, which is approximately $795 per month. In 1993, his net income from practicing law rose to $34,615.85, which is approximately $2,885 per month. For the period of January 1994 until July 18, 1994 (which was two days before respondent filed his bank- ruptcy petition), respondent's gross income(i.¢., in- come before business expenses—law office rent, telephone, etc.) was $21,617.63, which is approx- imately $3,325.79 per month. And, for the four months immediately before he filed for bankruptcy (i.e., April, May, June, and July 1994), his gross in- come was only $1,620 per month. In other words, before respondent filed his bankruptcy petition in July 1994, his approximate gross monthly income was either $3,325 .79 or $1,620. However, his personal living expenses alone were, at least, $2,200 per month. Even if re- spondent could reasonably have expected that his net income from his law practice would double from $34,615.85 (or $2,885) per month in 1993 to $69,231.70 (or $5,769.31 per month) in 1994, his income would still have been insufficient and inad- equate to repay the large debts and gambling losses he wasincurring. *12 During a short period, respondent obtained multiple cash advances on his credit cards either al- most meeting or exceedinghis credit limits, contin- ued to obtain credit in the form of gambling mark- ers from various casinos, and then apparently lost all of his remaining “liquid assets” during his “free fall” from late May 1994 to early July 1994. He ar- gues that he was then forced to immediately file bankruptcy in mid July 1994 without even consid- ering or attempting to work out a repayment plan with his creditors or, if he is really totally ignorant of bankruptcy law as he claims, without seeking the advice of a bankruptcy attorney to determine if there were alternatives to immediately filing a chapter 7 petition for complete discharge (i.e., a chapter 13 petition under which respondent could have had a court ordered workout plan with re- spondent's creditors). In summary, respondentincurred debts totaling $57,054 within a period of 37 days,all but exhaust- ing his credit line with the credit card companies and receiving substantial credit from the casinos, and then filed to have them discharged in bank- ruptcy within just 16 days after he obtained his last credit card cash advance. Respondent claims not to have consulted an attorney, but rather was per- suaded to seek bankruptcy protection by Donald Trump, whospoke of his bankruptcy experience on television. We do notlose sight of the fact that it is respondent, himself an attorney and a CPA whois very sophisticated financially, who would havethis court believe that he was ignorant of bankruptcy laws. Weare not persuaded. “Intent to repay requires some factual under- pinnings which lead a person to a degree of cer- tainty that he or she would have the ability to repay. Mere hope, or unrealistic or speculative sources of income,are insufficient.” (Chemical Bank v. Clagg (Bankr.C .D.I11.1993) 150 B.R. 697, 698, emphasis added.) The record clearly establishes respondent's hopeless financial condition, at least, from May 28, 1994, through July 4, 1994, if not during the entire 12—month period preceding his bankruptcy petition. Despite his meager and unpredictable income and monthly living expenses in excess of $2,200, re- spondent continued to make charges and obtain cash advances totaling $32,054 on his four credit cards in the face of staggering gambling losses and © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 12 NotReported in Cal.Rptr.2d, 2001 WL 664247 (CalBar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.Bar Ct.)) lack of adequateliquid assets to repay his debts. In sum, respondent could not have possibly failed to perceive the hopelessness of repaying his mounting cash advancesin the face of his gambling losses and lack of assets and current income. The circumstantial evidence clearly and convincingly establishes that respondent incurred the $19,327 in credit card debts to Bank One and First Card without intending to repay it. II. The Hearing Judge's Decision Is Not Void. In his second point of error, respondent con- tends that the hearing judge's decision is void (1) because the hearing judge did not file the decision within 90 days after he took the case under submis- sion as required by rule 220(b) and (2) be- cause, according to respondent, the Clerk of the State Bar Court did not properly serve a copy ofthe hearing judge's decision on him. For the reasons stated below, we reject both of respondent's argu- ments and hold that the hearing judge's decision is valid although it is superseded by this opinion on review (In the Matter of Hunter (Review Dept.1994) 3 Cal. State Bar Ct. Rptr. 81, 87 [on de novo review, review department opinions supersede hearing departmentdecisions]). FN16. Respondent incorrectly cites rule 220(c) in his appellant's brief. A. The 90-day time limit in rule 220(b)is neither mandatory norjurisdictional. *13 In 1998, the State Bar Board of Governors amended rule 220. It adopted a new subdivision (b) to that rule. That new subdivision (b), which ap- plies in all cases in which the matter was taken un- der submission on or after February 1, 1999, provides that “[t]he Court shall file its decision within ninety (90) days of taking the matter under submission, unless a shorter period for filing the decision in an expedited proceeding is required by statute, by Supreme Court rule, or by these rules.” In the present case, the hearing judge took the _mat- ter under submission on November 15, 1999. Therefore, under rule 220(b), he should havefiled his decision no later than February 14, 2000. FNI8 However, he did no do so. He filed his decision four days late on February 18, 2000. FN17. Respondent erroneously recites in his appellant's brief that the hearing judge took the case under submission on Novem- ber 12, 1999. FN18. The 90th day was actually February 13, 2000; however, that day was a Sunday. Accordingly, the hearing judge's decision was not due until the following Monday, February 14, 2000. First, respondent cites no authority for his nov- el proposition that a late filed decision is void. And, clearly, we are unaware of any. Second, construing the 90-day time limit in rule 220(b) as mandatory or jurisdictional would be unjustifiably inconsistent with the long-standing Supreme Court precedent that, once it has been established that an attorney has engaged in professional misconduct, the mis- conduct will not be disregarded because ofirregu- larities in the disciplinary proceeding unless their- regularities reasonably can be seen to have resulted in actual unfairness or specific prejudice to the at- torney. (See, e.g., In re Gross (1983) 33 Cal.3d 561, 566-567.) Third, such a construction would be inconsistent with our own Rules of Practice that have long provided (in relevant part) that no pro- ceeding shall be dismissed, nor shall the recom- mendeddiscipline be reduced, nor shall the disposi- tion of a State Bar Court proceeding be influenced in any manner solely because of a hearing judge's failure to comply with the filing deadlines set forth in the Rules of Practice. (Former Provisional State Bar Ct. Rules of Prac., rule 1130(d), now State Bar Ct. Rules of Prac., rule 1130(e).) In sum, we hold that the 90-day time limit in tule 220(b) is neither mandatory norjurisdictional, but directory. Accordingly, we reject respondent's contention that the hearing judge's decision is void becauseit was filed four days after the expiration of the ninety-day time limit. Furthermore, because re- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 13 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (Cal.Bar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.BarCt.)) spondenthasfailed to establish that he has suffered any actual harm or prejudice, he is not entitled to any relief for the hearing judge's failure to file his decision within the time prescribed in rule 220(b). “The claimed ‘injustice’ done to [respondent] is that because of the delay his future was made un- certain .... Undoubtedly this created a period of pressure and tension for [respondent], but this fact alone does not require a dismissal of these proceed- ings.” (Arden v. State Bar (1959) 52 Cal.2d 310, 316.) B. The clerk properly served a copy of the hearing judge's decision on respondent. Respondent contends that the hearing judge's decision is void because, according to respondent, the Clerk of the State Bar Court did not properly serve a copy of the decision on him. In support of this novel contention, respondent claims that the clerk was required to serve a copy of the hearing judge's decision on him by mailing a copy to him at the address he maintains on the official membership records of the State Bar (official address). Respond- ent further claims that the clerk did not mail aORY of the decision to him at his official address, but instead improperly mailed it to the address of his old office, which he describes as “an old, aban- doned, vacant business suite.” FN19. Respondent admits to using his home addressas his official address. Sec- tion 6002.1, subdivision (a)(1), expressly requires an attorney to use his current of- fice address as his official address unless he does not have an office address. Throughout these proceedings, respondent has admittedly maintained a law office. Accordingly,it is clear that respondent has used his home address as his official ad- dress in violation of section 6002.1, subdi- vision (a)(1). *14 Not surprisingly, respondent cites no au- thority to support his novel theory that a clerk's failure to correctly serve a copy of a court's de- cision renders the decision void. And we are un- aware of any. In any event, we reject respondent's contentions because wefind that the clerk properly served a copy of the hearing judge's decision on re- spondent. Rule 61(b) clearly provides that, except with respect to the initial pleading in a proceeding, a re- spondentshall be served at the respondent's official address “unless, with respect to the proceeding in connection with which the service is made, the {respondent] has counsel of record or has desig- nated a different address for service in the response ... (Emphasis added.) Moreover, rule 103(c)(1) clearly requires that a respondent's response (or an- swer) to the notice of disciplinary charges (NDC) must contain “an address on service of the respond- ent in the proceeding.” And that address for service is the address listed in the upper left-hand corner of the first page of the response. (Cf. State Bar Ct. Rules of Prac., rule 1110(b)(1); see also State Bar Ct. Rules of Prac., rule 1110(h) [“A party who is not represented by counsel shall sign the party's pleading andstate the party's address and telephone numberonthefirst page of the pleading.”’].) On May 27, 1999, a copy of the NDCin this matter was properly served on respondentat his of- ficial address. Thereafter, on June 14, 1999, re- spondent, appearing in propria persona, filed and served his response (answer) to the NDC. In the top left-hand corner on the face page of his response and directly below his name, his State Bar membership number, andhis title “Attorney at Law,” respondentlisted his address as: 2115 Kem Street, Suite 103—M, Fresno, CA 93721 (the Kem Street address) . Bylisting the Kern Street ad- dress on the face page of his response to the NDC, respondent designated the Kern Street address as his address for service in this proceeding. (Rules 61(b), 103(c)(1); State Bar Ct. Rules of Prac., rule 1110(b)(1) & (h).) Respondent's contentions to the contrary are not only meritless, but frivolous. FN20. On June 14, 1999, respondentalso filed a “Status Conference Statement” © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 14 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (Cal.Bar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.BarCt.)) form that he filled out and signed. That form contains a specific section in which the respondent (or his attorney if he has one) is to write his name and address. In that section, respondent wrote his name and again listed the Kern Street address as his address for service. Respondent listed the Kern Street address as his address on every pleading that he filed in this matter before the hearing judge filed his decision. And every documentor notice that the clerk served on respondent after respondent filed his answer to the NDC and before the hearing judge filed his de- cision was served on respondent at the Kern Street address. There is no evidence that respondent ever complained to the clerk or notified the clerk that he wanted to be served at a different address. Nor is there even an allegation by respondent that he did notreceive the copy of the hearing judge's decision that was properly served on him at the Kern Street address. Ill. The Hearing Judge's Restitution Recommenda- tion is NotIllegal. In April 1999, which was eight months before the trial in this proceeding, respondent finally re- paid the $7,059 in purchases that he charged and the cash advances he obtained on his First Card credit card between May 28, 1994, and July 4, 1994, However, respondenthasstill not repaid the $12,268 in cash advances he obtained on his Bank Onecredit card between May 28, 1994, and July 4, 1994, *15 Respondent contendsthat, because he used the $12,268 in cash advances that he obtained on his Bank Onecredit card to play blackjack, they are gambling debts. Citing Metropolitan Creditors Ser- vice v. Sadri (1993) 15 Cal.App.4th 1821, respond- ent further contends that, because his debts to Bank Oneare “gambling debts,” they are not enforceable in California. Respondent then argues that, because his “gambling debts” to Bank One are not enforce- able in California, the hearing judge's recommenda- tion that he be ordered to makerestitution to Bank One in the amount of $12,268 is illegal. We dis- agree, In California, it is well established that restitu- tion in attorney disciplinary proceedings is not a form of debt collection. (Cf. Brookman v. State Bar (1988) 46 Cal.3d 1004, 1008-1009 [restitution is not imposed solely because the attorney has not paid a debt discharged in bankruptcy].) Nor is it used as a means of compensating the victim of wrongdoing. (Sorensen v. State Bar (1991) 52 Cal.3d 1036, 1044.) However,restitution is an im- portant part of rehabilitation and public protection because it forces errant attorneys to confront, in concrete terms, the harm that their misconduct has caused. (Brookman v. State Bar, supra, 46 Cal.3dat p. 1009.) Because the responsibilities of a lawyer differ from those of a layman, a lawyer may bere- quired to make restitution as a moral obligation even whenthere is no legal obligation to do so. (Jn the Matter of Distefano (Review Dept.1991) 1 Cal. State Bar Ct. Rptr. 668, 674.) In sum, we not only conclude that the hearing judge's recommendation that respondent be re- quired to make restitution to Bank Oneis legal, we also concludethat it is appropriate and necessary to respondent's rehabilitation and for protection ofthe public. Accordingly, we too shall recommendthat respondent be ordered to makerestitution to Bank One. IV. There Is No Rational Basis To Support the Re- commendation that Respondent be Required to At- tend Gamblers Anonymous Meetings. We agree with respondent's contention that there is no factual basis to support the hearing judge's recommendation that he be required to at- tend Gamblers Anonymous meetings. We addressed a similar issue in Jn the Matter ofKoehler (Review Dept.1991) 1 Cal. State Bar Ct. Rptr. 615, 629. In that case, we held that, before a mental health treat- ment condition may be recommended, there must be either expert or other clear evidence of a mental or other problem requiring such treatment. (Jbid., citing Jn re Bushman (1970) 1 Cal.3d 767, 777, dis- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 15 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (Cal.Bar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.BarCt.)) approved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) The State Bar neither impeached nor rebutted respondent's testimony that he has not gambled since 1994. The State Bar did not proffer any expert testimony that respondent suffers from compulsive gambling. Noris there any other evidence in the re- cord establishing or indicating that respondent cur- rently suffers from compulsive gambling. *16 The State Bar's reliance on In re Kelley (1990) 52 Cal.3d 487 to support the hearing judge's recommendation that respondent be ordered to at- tend Gamblers Anonymous meetings is misplaced. In Kelley the Supreme Court rejected Kelley's “contention that referral to the State Bar alcohol ab- use program [was] unsupported by the evidence and unnecessary to protect the public. As the State Bar points out, the first step after referral is evaluation and screening for suitability of enrollment in the program. Weagree with the review department that two drunk driving convictions, the second in- volving a violation of a court order based on the first, warrant this measure even absent an eviden- tiary finding that petitioner in fact suffers from such a problem.”(/d. at pp. 498-499.) Kelley's two drunk driving convictions, the second of which was committed in violation of the terms of the criminal probation imposed on her as a result of her first conviction, distinguish Kelley from the present case. Another distinguishing factor is that in Kelley the Supreme Court noted that Kelley's drunk driv- ing convictions and the circumstances surrounding them indicated that she had a problem of alcohol abuse. (/d. at pp. 495-496, 498.) In sum,there is no basis to support the require- ment that respondent attend Gamblers Anonymous meetings. In our view, the hearing judge's recom- mendedprobation condition requiring that respond- ent refrain from all gambling will adequately serve the purposesof attorney disciplinary proceedings. V. Aggravating and Mitigating Circumstances. A. Aggravating circumstances. We adopt the hearing judge's finding that re- spondent's failure to repay any portion of his 1994, debts to First Card until 1999 establishes respond- ent's indifference towards rectification of and atonement for the consequences of his misconduct, which is an aggravating circumstance under stand- ard 1.2(b)(v) of the Standards for Attorney Sanc- tions for Professional Misconduct. Similarly, we adopt the hearing judge's findings that respond- ent's failure to repay any portion of his $12,268 nondischargeable debt to Bank One is also an ag- gravating circumstance and supports our finding that respondent had no intention to repay. FN21. The standards are foundin title IV of the Rules of Procedure of the State Bar. All further references to standards are to this source. B. Mitigating circumstances. Respondent has been practicing law for more than 16 years without any prior record of discipline. Weadopt the hearing judge's finding of this mitig- ating circumstance pursuantto standard 1.2(e)(i). However, respondentis not entitled to any mit- igation for making restitution to First Card in April 1999 because it was made underthe pressure of the State Bar's investigation and initiation of disciplin- ary proceedings against him and the pressure of First Card's money judgment against him. (Warner v. State Bar (1983) 34 Cal.3d 36, 47 [an attorneyis notentitled to any mitigation for restitution made as a matter of expediency or underpressure]; cf. Jn the Matter of Ike (Review Dept.1996) 3 Cal. State Bar Ct. Rptr. 483, 490 [“compliance with a criminal restitution order, no matter how timely, is not a mit- igating circumstance”].) To conclude otherwise would inappropriately reward respondent with mit- igation merely for doing what he was already leg- ally required to do. VI. The Appropriate Level of Discipline. *17 In determining the appropriatelevel of dis- cipline, we first look to the standards for guidance. (Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090; © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 16 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (Cal.BarCt.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.BarCt.)) In the Matter ofKoehler, supra, | Cal. State Bar Ct. Rptr. at p. 628.) Standard 1.3 provides that the primary purposes of discipline are to protect the public, the courts, and the legal profession; to main- tain the highest possible professional standards for attorneys; and to preserve public confidence in the legal profession. (See also Chadwick v. State Bar (1989) 49 Cal.3d 103, 111.) The applicable sanction in this proceeding is found in standard 2 .3, which provides thatan attor- ney's culpability of an act of moral turpitude shall result in actual suspension or disbarment depending upon the extent of harm, the magnitudeofthe act, and the degree to which it relates to the attorney's practice of law. In the present proceeding, the mag- nitude of the misconduct is substantial because it involves dishonesty with respect to money. We agree with the hearing judge that “Respondent's dishonesty in repeatedly borrowing money with no intention of repaying the sameis serious and simply inexcusable.” Next, we look to decisional law for guidance. (See Snyder v. State Bar (1990) 49 Cal.3d 1302, 1310-1311; Jn the Matter of Taylor (Review Dept.1991) 1 Cal. State Bar Ct. Rptr. 563, 580.) The parties have not cited any cases, and we are un- aware of any, involving an attorney's borrowing money from credit card companies without intend- ing to repayit. Even if there is no clear and convincing evid- ence that respondent made actual misrepresenta- tions to Bank Oneor First Card in order to obtain the credit cards and to make purchases and obtain cash advances on them, respondent's use of the credit cards to obtain goods and cash without in- tending to repay the debts is, at worst, akin to em- bezzlementand,at best, akin to abusing one's posi- tion of trust for personal gain. Accordingly, like the hearing judge, we conclude that a period ofactual suspension is required. The hearing judge cited In the Matter of Mitchell (Review Dept.1991) 1 Cal. State Bar Ct. Rptr. 332. In that case the attorney misrepresented his educational background on his resume, which he used while he was seeking em- ployment as a lawyer. (/d. at p. 339.) We viewed the attorney's “willingness to repeatedly use false and misleading meansto secure a perceived advant- age in the employment process [to be] a matter of serious concern, despite the lack of misconduct dur- ing the ‘practice of law.’ [Citation.]” (Jbid.) In Mitchell we recommended and the Supreme Court imposed a 60-day period of actual suspension on the attorney. (See id. at p. 342.) At a minimum,re- spondent's misconduct was as serious as the attor- ney's in Mitchell; accordingly, we shall not recom- mend less than a 60-day period of actual suspen- sion in this case. Moreover, because the misconduct was unrelated to and, apparently, did not adversely affect any of respondent's clients, we shall not re- commend more than a 60-day period of actual sus- pension. *18 After carefully reviewing the record inde- pendently and weighing all the appropriate factors, we conclude that the hearing judge's recommenda- tion of a two-year period of stayed suspension and a two-year period of probation on conditions, includ- ing a 60-day period of actual suspension,is the ap- propriate level of discipline. VII. Discipline Recommendation. Werecommend that respondent Rodolfo En- rique Petilla be suspended from the practice of law in the State of California for a period of two years; that execution of the two-year period of suspension be stayed; and that Petilla be placed on probation for a period of two years on the following condi- tions, 1, Petilla shall be actually suspended from the practice of law in the State of California during the first 60 days of this probation. 2. Petilla must comply with the provisions of the State Bar Act, the Rules of Professional Conduct of the State Bar of California, and all the condi- tions of this probation. 3. Petilla must report, in writing, to the State © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 17 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (CalBarCt.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.Bar Ct.)) Bar's Probation Unit in Los Angeles no later than January 10, April 10, July 10 and October 10 of each year or part thereof in which Petilla is on probation (“reporting dates”). However, if Petilla's probation begins less than 30 days before a reporting date, Petilla may submit the first re- port no later than the second reporting date after the beginning of Petilla's probation. In each re- port, Petilla must state that it covers the preced- ing calendar quarter or applicable portion thereof and certify by affidavit or under penalty of per- jury under the laws of the State of California as follows: (a) in the first report, whether Petilla has com- plied with all the provisions of the State Bar Act, Rules of Professional Conductof the State Bar, and other terms and conditions of proba- tion since the beginning of this probation; and (b) in each subsequent report, whether Petilla has complied with all the provisions of the State Bar Act, Rules of Professional Conduct of the State Bar, and other terms and conditions of probation during the period. During the last 20 days of this probation, Petilla must submit a final report covering any period of probation remaining after and not covered by the last quarterly report required under this probation condition. In this final report, Petilla must certify to the matters set forth in subparagraph (b)of this probation condition by affidavit or under penalty of perjury under the laws of the State of Califor- nia. 4, Subject to the assertion of any applicable priv- ilege, Petilla must fully, promptly, and truthfully answerall inquiries of the State Bar's Probation Unit and any assigned probation monitor referee that are directed to Petilla, whether orally or in writing, relating to whether Petilla is complying or has complied with the conditions of this proba- Supreme Court order in this matter, Petilla must: (1) attend and satisfactorily complete the State Bar's Ethics School; and (2) provide satisfactory proof of completion of the school to the State Bar's Probation Unit in Los Angeles. This condi- tion of probation is separate and apart from Petilla's California Minimum Continuing Legal Education (MCLE) requirements; accordingly, Petilla is ordered not to claim any MCLEcredit for attending and completing this course. (Accord Rules Proc. of State Bar, rule 3201.) *19 6. Petilla must abstain from all gambling. 7. Within 90 days after the effective date of the Supreme Court order in this matter, Petilla must: (1) make restitution to Bank One, or the Client Security Fund if it has paid, in the amount of $12,268 plus interest thereon at the rate of 10% simple interest per annum from June 11, 1994, until paid; and (2) provide satisfactory proof of such restitution to the State Bar's Probation Unit in Los Angeles. If Petilla contends that he is unable to pay this amount, he must (1) ask, within the first 30 days after the effective date of the Supreme Court or- der in this matter, the State Bar's Probation Unit in Los Angeles to assign to him a probation mon- itor referee and (2) submit to that referee, within 30 days after being notified of the referee's as- signment, a written plan for the prompt payment of as much of the amount as he is able to pay. The submission of any such plan by Petilla must include satisfactory proof of his financial condi- tion and the amountheis able to pay. On the mo- tion of Petilla or the State Bar, any decision by the referee to approve or reject any payment plan proposed by Petilla is subject to de novo review by the State Bar Court. VIIl. Professional Responsibility Examination. We recommend that Petilla be ordered to take tion. and pass the Multistate Professional Responsibility Examination administered by the National Confer- 5. Within one year after the effective date of the ence of Bar Examiners within one yearafter the ef- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 18 Not Reported in Cal.Rptr.2d, 2001 WL 664247 (Cal.Bar Ct.), 4 Cal. State Bar Ct. Rptr. 231 (Cite as: 2001 WL 664247 (Cal.Bar Ct.)) fective date of the Supreme Court order in this mat- ter and to provide satisfactory proof of passage of the examination to the State Bar's Probation Unit in Los Angeles within that same year. IX. Costs. We recommendthat the costs incurred by the State Bar in this matter be awardedto the State Bar in accordance with section 6086.10 of the Business and Professions Code and that those costs be pay- able in accordance with section 6140.7 of the Busi- ness and Professions Code. OBRIEN,P.J. and STOVITZ,J., concur. Cal.Bar Ct.,2001. In re Petilla Not Reported in Cal.Rptr.2d, 2001 WL 664247 (Cal.Bar Ct.), 4 Cal. State Bar Ct. Rptr. 231 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. DECLARATION OF SERVICE Re: People v. Vaene Sivongxxay, No. $078895 I, Neva Wandersee, declare that I am over 18 years of age, and not a party to the within cause; my business address is 1111 Broadway, 10th Floor, Oakland, California 94607. A true copy of the attached: APPELLANT?’S REPLY BRIEF on eachofthe following, by placing same in an envelope (or envelopes) addressed (respectively) as follows: The Honorable Kamala Harris Mr. Vaene Sivongxxay Attorney General ofthe State of California P.O. Box P-39500 110 W. “A”Street, Suite 1100 Tamal, California 94974 San Diego, California 92101 Fresno County District Attorney Fresno County Superior Court 2220 Tulare St., Suite 1000 Clerk of Court Fresno, California 93721 1100 Van Ness Avenue Fresno, CA 93724-0002 Eachsaid envelope was then, on December 31, 2013, sealed and deposited in the United States Mail at Oakland, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of pey at the foregoing is true and correct. Executed on December31, 2013, ap Oaklan@, California. Neva Wandersee
