PEOPLE v. MORAAppellant, Ruben Rangel, Opening BriefCal.July 28, 2010SUPREME COUPE COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, CRIM. No. 8079925 Plaintiff and Respondent, Automatic Appeal (Capital Case) VS. Los Angeles County JOSEPH ADAM MORA,and Superior Court RUBEN RANGEL No. CR TA037999 Defendant and Appellant. SUPREME COURT PEED JUL 28 2010 APPELLANT RANGEL’S OPENINGBRIEF Frederick K. Ohirich Clerk Deputy Appeal from the Judgment of the Superior Court of the State of California for the County of Los Angeles HONORABLEVICTORIA M. CHAVEZ Tara K. Hoveland State Bar No. 167746 1034 Emerald Bay Rd., #235 South Lake Tahoe, CA 96150 (800) 317-1682 Attorney for Appellant RUBEN RANGEL eon TABLE OF CONTENTS STATEMENT OF APPEALABILITY..........0000-ccceccceeeeeeeeeeeseueeess 1 STATEMENT OF THE CASE. ......... 0.0.0.0cectnae 1 A. Arrest through Preliminary Examination.....................-02-2055 1 B. Information and Pretrial Motions. ............ 0.0... c eee eee eee 2 C. The Guilt Phase of the Trial.... 2.0.0.0... ceeeeeeee 4 D. The Penalty Phase of the Trial... 2.2.0.0... 0... eee ee eee 5 STATEMENTOF FACTS.......... 0.0.00.eeenes 6 A. Guilt Phase... 2...ceeens 6 1. The Prosecution’s Case. ........ 0...eeeeee 6 a. The Deaths of Encinas Encinas and Anthony Urrutia....... 6 b. The Initial Investigation: Witnesses to the Crime.......... 8 i. Paula Beltran. .............. 000.00 8 il. Fidel Gregorio. «2.6... eee eee eee eee 9 iil. Sheila Creswell... ........2.02 2002020022002 eee 10 iv. Ramon Valadez. ................0 00.2222 eee 11 Vv. Lourdes Lopez. .............. 0.0 c cece eee 12 Vi. Mayra Fonseca..................00022000008- 14 vil. John Youngblood.....................20.006. 14 c. Initial Investigation: Law Enforcement................. 15 1. Officer Raymond Brownand Officer Lepe........ 15 ii. Detective Marvin Branscomb...................- 16 lil. Officer Strong... . 2.0.0.0... 0. cee eee es 17 Iv. Officer Gonzalo Cetina and Officer Timothy Dobbin. ....... 2.0.0.2... eeeeee 17 V. Officer Ed’ourd Peters.................----04. 18 d. The Forensic Investigation. ................0.00000085 19 e. The Autopsies. ............ 0.0000eee 19 2. The Defense Case as to Appellant. ................002.00055 20 a. Michelle Lepisto. ........... 0.0.0.0cee 20 b. Officer Slutske.... 0.0.0...02222 21 Cc. Officer Ronald Thrash..................0.00--0- 0005: 21 Penalty Phase... 1.2.2...eeeeens 21 1. Summary... 0...eeeeee eee 21 2. The Prosecution’s Penalty Phase Evidence. .................. 22 a. Aggravation Evidence Relating to Appellant............ 22 b. Aggravation Evidence Relating to Co-Defendant Mora... . 23 c. Victim Impact Evidence as to Appellant and Co- Defendant Mora.............. 0.0... 24 3, The Case for Life... 0.0... 0...cece26 a. Mitigating Evidence as to Appellant................... 26 ii Pie b. Mitigating Evidence as to Co-Defendant Mora. ....... THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL IN THE GUILT PHASE AFTER THE PROSECUTION’S REPEATED FAILURES TO COMPLY WITH DISCOVERY RULES AND TO DISCLOSE FAVORABLE MATERIAL EVIDENCE IMPAIRED APPELLANT’S ABILITY TO PRESENT A DEFENSE AND VIOLATED APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS..... A. Introduction. .............. 2.00 ce ee eee ee ee eee eee ee nena l. The Prosecution’s Failure to Timely Disclose The Transcript of Lourdes Lopez’ Second Interview With Police, Two Diagramsof the Crime Scene, Four Police Reports, Fourteen Witness Statements, an Arrest Warrant for Jade Gallegos, and an Exculpatory Gun Shot Residue Report, Impaired Appellant’s Ability to Present His Defense.................. 2. The Prosecution’s Failure to Timely Disclose the Fingerprint Analysis Report From The Crime Scene Impaired Appellant’s .. 31 33 . 33 . 33 Ability to Prepare His Defense.....................-...004- 40 B. Standard of Review. ........... 2.0... eee ec eee ee ee nee eee neeee 42 C. The Prosecution Has Statutory and Constitutional Duties to Timely Disclose Material Evidence to the Defense......................... 43 L. The Prosecution’s Statutory Duty to Disclose. ................ 43 2. The Prosecution’s Constitutional Duty to Disclose............. 44 D. Appellant is Entitled to a Reversal Since his Ability to Present a Defense and Receive a Fair Trial Was Irreparably Damaged By The Multiple Instances of Untimely Disclosure of Material Evidence Without Adequate Remedy. ...... 0.2... 0... eeeeee 48 ill I. III. THE TRIAL COURT’S RESTRICTION OF APPELLANT’S CLOSING ARGUMENT AND REFUSALTO GIVE APPELLANT’S REQUESTED INSTRUCTION REGARDING THE PROSECUTION’S FAILURE TO FULLY AND TIMELY PROVIDE PRETRIAL DISCOVERY PREJUDICIALLY VIOLATED APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS. ........... 0.0. e ee eens 55 A. Introduction. 2.2.0... 0...eeneee eee eee 55 B. Standard of Review... 2... 2.0...eeeee eens 56 C. The Trial Court’s Instruction Regarding the Compton Police Department’s Failure to Timely Produce Evidence Was Misleading, Incomplete And Failed to Provide Adequate Guidancefor the Jury...... 57 D. The Trial Court’s Ruling Prohibiting Appellant From Arguing To The Jury That The Discovery Violations Were Intentional Was Error and Violated Appellant’s Constitutional Rights. .................... 64 E, The Erroneous Instruction And Restriction of Closing Argument Constitutes Reversible Error Since The Errors Were Not Harmless...... 66 THE TRIAL COURT ERREDIN FORCING APPELLANT TO CONDUCT CROSS-EXAMINATION WITHOUT SUFFICIENT TIME TO REVIEW A NEWLY ACQUIRED SIX- PAGE STATEMENT FROM AN UNTIMELY DISCLOSED WITNESS VIOLATING HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS. ........................ 70 A. Introduction. 0... 0...eeenee eens 70 B. Standard of Review. ......... 0.0.0... ceceeee 72 C. Appellant Has the Constitutional Right to Effective Confrontation and Effective Assistance of Counsel.......... 0.2.2.0... eee eee ees 73 Appellant’s Case Must Be Reversed Since Appellant’s Ability to Effectively Cross-Examine Youngblood Was Impairedby the Trial Court’s Refusal to Allow Counsel Sufficient Time to Prepare.......... 74 iv & F 2 eB. veel IV. VI. APPELLANT’S CONVICTION MUST BE REVERSED BECAUSETHE TRIAL COURT ERRED IN ALLOWING THE ADMISSION OF INADMISSIBLE HEARSAY AND IRRELEVANT AND PREJUDICIAL GANG EVIDENCE THROUGH THE IMPROPER IMPEACHMENT OF LOURDES LOPEZ IN VIOLATION OF STATE AND FEDERAL LAW. .... 77 A. Introduction. .. 2.2.2... 0.02.eeeeee tee eee 77 B. Standard of Review. ............ 00... cece ee cee eect eee eee teee 81 C. The Trial Court Erred When It Allowed the Jury To Hear Two Tape Recorded Statements Which Contained Inadmissible Hearsay as well as Irrelevant and Prejudicial Gang Evidence.....................4.. 82 The Admission of the Evidence WasPrejudicial and Was Not Cured By The Court’s Vague and Inadequate Admonishment Regarding the “Limited” Use of the Evidence Nor Its Giving of CALJIC 2.09. ....... 85 THE TRIAL COURT’S REFUSAL TO DISMISS JUROR NO.7 AFTER SHE HAD OBTAINED EXTRANEOUS AND OTHERWISE INADMISSABLE INFORMATION REGARDING A PLEA OFFER OF 25 YEARS TO LIFE WITHOUT MAKING AN ADEQUATEINQUIRY VIOLATED APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS. ......... 0.0.0.2eeeeens 91 A. Introduction... 2.2...eeeee eee eee e teen eee 91 B. Standard of Review. .............0000s 93 Cc. Juror Knowledge Of A Plea Offer Of Twenty-Five Years to Life D. Without An Adequate Inquiry From The Trial Court Or Removal of the Juror Violated Appellant’s Constitutional Rights to A Fair and Impartial Jury...2.eeeeee eens 94 Appellant’s Case Must Be Reversed.............. 22.2.0 e eee 102 THE EVIDENCE WASINSUFFICIENT TO CONVICT APPELLANT OF ATTEMPTED ROBBERY, FELONY MURDER BASED UPON ATTEMPTED ROBBERY AND TO SUPPORT A TRUE FINDING ON THE ROBBERY SPECIAL CIRCUMSTANCES........................ 105 VIL. Introduction. ........0.. 0... cee eee ee eee teen ene eenes 105 Standard of Review. ............ 0... ce cee eee cece cece eeeee 108 The Evidence WasInsufficient to Convict Appellant of Attempted Robbery, Felony Murderor Find True the RobberySpecial Circumstances, Thus Those Convictions and Findings Must Be Reversed. 2.0.0.0... ccceeeeen eee eee eae 110 The Evidence WasInsufficient to Support the Attempted Robbery Convictions. ......... 0... 0c cee eee eens 111 The Evidence wasInsufficient to Support a Felony Murder Conviction Based on Robberyor a True Finding on the Robbery Special Circumstance Allegation................... 114 Arguendo,If the Evidence Presented Is DeemedSufficient for a Finding of Attempted Robbery or Felony Murder Based upon Robbery in a Non-capital Case, It Is Still Not Sufficient to Sustain a Death Verdict. ............ 20.20.0020. 118 The Attempted Robbery and First Degree Murder Convictions Must be Reversed and the Death Verdict Must Be Set Aside Since There WasInsufficient Evidence Presented to Support the Convictions and Robbery Special Circumstance Findings...................000005- 119 1. The Attempted Robbery Convictions Must be Reversed and Cannot be Retried.......... 20.0... 002... eee eee eee 120 The Murder Convictions Must Be Reversed. ................ 120 The Robbery Special Circumstance Findings Must Be Reversed and the Death Verdict Must Be Set Aside. .......... 124 THE JURY’S TRUE FINDING ON THE MULTIPLE MURDER SPECIAL CIRCUMSTANCE MUST BE REVERSED SINCE SUBSTANTIAL EVIDENCE WAS NOT PRESENTED TO SUPPORTIT AND BECAUSETHE JURY MOST LIKELY RELIED UPON AN INVALID THEORYIN FINDING THE CIRCUMSTANCETRUE......... 126 vi VII. IX. Introduction. ........... 0... cee ee eee ee eee nee enna 126 Standard of Review. ............ 0... cece ee ee ee eee eee ee nes 127 The Multiple Murder Special Circumstance Must Be Reversed Since There WasInsufficient Evidence Presented That Rangel Intended to Kill Urrutia and Because the Jury WasInstructed It Could Find The Circumstance True Without Finding an Intent to Kill................ 129 Because It Cannot Be Determined If The Jury Based Its True Finding on The Multiple Murder Circumstance on an Intent to Kill Theory Rather than a Reckless Indifference Theory, the Multiple Murder Special Circumstance Mustbe Set Aside. .................22.2205- 136 THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON FIRST DEGREE PREMEDITATED MURDERAND FIRST DEGREE FELONY- MURDER BECAUSE THE INFORMATION CHARGED APPELLANT ONLY WITH SECOND DEGREE MALICE-MURDERIN VIOLATION OF PENAL CODESECTION 187 VIOLATING HIS CONSTITUTIONAL RIGHTS. 2.0.0.0... 0.0eeneeee ee eees 139 A. Introduction. ..... 0.0.0...eeeeee eens 139 B. The Trial Court Erred in Instructing Appellant’s Jury on First Degree C. Premeditated Murder and First Degree Felony-Murder because the Information Charged Appellant only With Second Degree Malice- Murderin Violation of Penal Code Section 187.................... 140 Appellant’s Convictions for First-Degree Murder Must Be Reversed. .. 148 THE TRIAL COURT COMMITTED REVERSIBLE ERROR, AND DENIED APPELLANT HIS CONSTITUTIONAL RIGHTS,IN FAILING TO REQUIRE THE JURY TO AGREE UNANIMOUSLY ON WHETHER APPELLANT HAD COMMITTED A PREMEDITATED MURDER OR A FELONY-MURDER BEFORE RETURNING A VERDICT FINDING HIM GUILTY OF MURDERIN THE FIRST DEGREE. ................. 149 A. Introduction. ........ 0.0.0... tne eee eee ene eee 149 Vii XL. B. C. The Jury Must Be Unanimous Onthe Theory of First-Degree Murder Under Which They Convicted Appellant. ....................005. 149 Appellant’s Convictions of First-Degree Murder Must Be Reversed... . 157 THE TRIAL COURT ERRED WHENIT REFUSED APPELLANT’S PINPOINT INSTRUCTION STATING THAT CONVICTING APPELLANT UNDER THE FELONY MURDER THEORY REQUIRED THAT APPELLANT COMMITTED THE ATTEMPTED ROBBERY FOR A PURPOSE WHOLLY INDEPENDENT OF THE MURDER, VIOLATING APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS.......... 00... 002eenee 159 A. Introduction. ...... 0.0... 0...eeeeee eens 159 B. Standard of Review. ........ 2...0.teen eee 161 C. Appellant Was Entitled to Have CALJIC 8.21 Modified Since The Prosecution Was Required To Have Proved Beyond A Reasonable Doubt that Appellant Had an Independent Felonious Purposeto Commit the Attempted Robbery In Order For The Jury to Convict Appellant Under The Felony Murder Theory. ..................... 161 The Refusal To Give the Defense Requested Special Instruction No. | Requires Reversal Since The Error Cannot Be Deemed Harmless Beyond a Reasonable Doubt. .............. 0.0.0.2... 0c eee 166 A SERIES OF GUILT PHASE INSTRUCTIONS UNDERMINED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT,IN VIOLATION OF APPELLANT’S RIGHTS TO DUE PROCESS AND A FAIR TRIAL, TRIAL BY JURY, AND RELIABLE VERDICTS. .......... 168 A. Introduction. ... 2... 0...eeeenee eee 168 B. Standard of Review. ........ 0.0.0.eeeeee 168 C. The Defective CALJIC Instructions Given in The Guilt Phase Undermined the Requirement of Proof Beyond a Reasonable Doubt... . 169 Vili AIL. XIII. l. The Instructions on Circumstantial Evidence under CALJIC Nos. 2.01 and 2.02 Undermined the Requirement of Proof Beyond a Reasonable Doubt.....................22202205- 169 2. The Instructions Pursuant to CALJIC Nos. 2.21.1, 2.21.2, 2.22, 2.27, and 8.20 Undermined the Requirementof Proof Beyond a Reasonable Doubt......................0-0--005- 172 3. This Court Should Reconsider Its Prior Rulings Upholding the Defective Instructions........... 0.000 e eee eee 176 Appellant’s Conviction Must Be Reversed Since The Instructions Undermined the Requirement of Proof Beyond a Reasonable Doubt Constituting Structural Error... 2.2.0.0... 0.000002 178 REVERSAL OF APPELLANT’S CONVICTIONS IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS THAT COLLECTIVELY UNDERMINED THE FUNDAMENTALFAIRNESS OF THE GUILT PHASE AND THE RELIABILITY OF THE VERDICTS OF GUILT. 2...ceec nee ee eens 179 THE TRIAL COURT ERRONEOUSLY ALLOWED THE PROSECUTOR TO ELICIT IRRELEVANT AND PREJUDICIAL GANG EVIDENCE DURING THE PENALTY PHASEIN VIOLATION OF APPELLANT’S STATE A FEDERAL CONSTITUTIONAL RIGHTS. ................... 181 A. Introduction... 0.0.0...eeeee eee 181 B. Standard of Review. .............. 0.00:ee eens 188 C. The Death Judgment Must Be Reversed Because The Defense Detrimentally Relied on the Court and Prosecution’ Representations That No Such Evidence Would Be Admitted In Omitting The Subject of Gangs From The Jury Questionnaire and Voir Dire. ....... 189 The Death Judgment Must Be Reversed, Because in Violation of State and Federal Law,the Trial Court Erroneously Allowed the Prosecutor to Elicit Irrelevant and Prejudicial Gang Evidence During the Penalty Phase... . 0.0... 20.0.0... ccceee eens 190 ix E. Appellant’s Death Sentence Must be Reversed....................-. 197 XIV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING APPELLANT’S ADDITIONAL PROPOSED PENALTY XV. PHASE INSTRUCTIONS........... 0.0.eens 200 A. Introduction. ......... 2.0...eeeeee ene eee 200 B. Standard of Review.......... 0.0.00eeeteens 201 C. The Trial Court Erred by Refusing Appellant’s Request to Instruct G. the Jury that it Would Be Misconduct to Regard Death as a Less Severe Penalty Than Life in Prison Without Possibility of Parole. ..... 201 The Trial Court Erred by Failing to Instruct That Drug or Alcohol Intoxication Could Not Be Considered Aggravating................. 205 The Trial Court Erred by Refusing to Instruct the Jurors That Appellant’s Background Could Only Be Considered as Mitigating. .... 210 The Trial Court Erred in Refusing to Give Appellant’s Proposed Clarifying Instructions on the Penalty Weighing Process............. 213 Appellant’s Death Sentence Must be Vacated...................... 217 THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUESTS FOR A CONTINUANCE TO ALLOW APPELLANT TO SECURE A NECESSARY SURREBUTTAL WITNESS, REVISE HER CLOSING ARGUMENTIN LIGHT OF THE COURT’S REJECTION OF DEFENSE REQUESTED INSTRUCTIONS, AND ALLOW DEFENSE COUNSEL UNTIL THE NEXT MORNINGTO START HER PENALTY PHASE CLOSING ARGUMENT.......... 0.0.0.0... 0 0 cee eens 219 A. Introduction... 2.0.0... 0.0.0.eee eee eens 219 B. Standard of Review. ........... 00.0eee teens 223 C. The Trial Court Abused its Discretion in Refusing to Grant An Overnight Continuance for the Defense to Secure a Necessary Surrebuttal Witness And To Prepare for Closing Argument........... 224 a € 3 £ 3 £ 8 € 2 F R e € s E e 7m mom El re XVI. XVII. THE “CIRCUMSTANCESOF THE CRIME” LANGUAGEIN PENAL CODESECTION 190.3, SUBDIVISION (A) IS UNCONSTITUTIONALLY VAGUE AND OVERBROADAS APPLIED RESULTING IN THE TRIAL COURT ERRING IN ADMITTING THE EVIDENCE WITHOUT LIMITATION, OR EXCLUSION OF WITNESSES, AND WITHOUT AN APPROPRIATE JURY INSTRUCTION.... 0.2...eentenn een ees 233 A. Introduction. .... 2.0... 0...ceeteeeens 233 B. Standard of Review. .......... 0... cee eee eee eee eens 236 C. The “Circumstances of the Crime” Language in Penal Code Section 190.3, Subdivision (a) is Unconstitutionally Vague and Overbroad..... 236 The Trial Court Erred in Its Refusal of Defense Special Instruction No. 14, and the Modified Version of Caljic 8.84.1 Given by the Trial Court to Satisfy the Instructional Deficiency Failed to Sufficiently Instruct the Jury Regarding the Proper Use of “Victim Impact Evidence.”. 2.2...eeeeee eee eee 247 The Admission of the Victim-Impact Evidence in This Case Was Prejudicial and Requires Reversal.............. 0.0000 eee eee eee 253 THE TRIAL COURT’S FAILURE TO CONDUCT AN EVIDENTIARY HEARING ON THE DEFENSE ALLEGATIONSOF JUROR MISCONDUCT REQUIRES THAT THE DEATH JUDGMENT MUST BE REVERSED AND THE CASE REMANDEDFOR A HEARING TO RESOLVE DOUBTS ABOUT THE JURORS’ IMPARTIALITY........... 254 A. Introduction. ............ 0000eeee eens 254 B. Standard of Review. ...... 2.0.0.0... ceceees 260 C. The Trial Court Erred in Failing to Hold an Evidentiary Hearing on the Allegations of Jury Misconduct During Penalty Phase Deliberations. .... 0.0... 00. ccceeceeet 261 Xi XVIII. XIX. XX. C. Appellant Was Prejudiced By the Lack of an Evidentiary Hearing on the Juror Misconduct Claims and The Penalty Phase Must Be Reversed. .... 2... 0. cee eeeeeeteeta 268 THE TRIAL COURT’S REFUSAL TO GIVE APPELLANTS’ REQUESTED MODIFICATION OF CALJIC 8.85 REQUIRES REVERSAL OF THE DEATH SENTENCE BECAUSE,IN VIOLATION OF EIGHTH AND FOURTEENTH AMENDMENT PRINCIPLES, THERE IS A REASONABLE LIKELIHOOD THAT THE JURORS UNDERSTOOD THE TRIAL COURT’S INSTRUCTIONS IN A MANNER THAT ALLOWED THEM TO SENTENCE APPELLANT TO DEATH BY DOUBLE- COUNTING AND OVER-WEIGHING THE STATE’S AGGRAVATING EVIDENCE... ........ 0.00.00... eee ee eee 271 Introduction. ..........0. 0... eee ee ce ee eee eee eee ee neae 271 The Death Sentence Must Be Reversed Because, in Violation of Eighth and Fourteenth AmendmentPrinciples, There is a Reasonable Likelihood That the Jurors Understood the Trial Court’s Instructions in a Manner That Allowed Them to Sentence Appellant to Death by Double-Counting and Over-Weighing the State’s Aggravating Evidence. ..... 0.0.0.0... cecenent e eens 272 The Trial Court’s Error Requires Reversal of the Death Sentence...... 277 APPELLANT’S CONVICTION OF CAPITAL MURDER MUST BE REVERSED BECAUSE CALIFORNIA’S MULTIPLE MURDER SPECIAL CIRCUMSTANCEIS UNCONSTITUTIONAL. ............... 280 CALIFORNIA'S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT'S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION.....................0.0.004. 283 A. Appellant’s Death Penalty Is Invalid Because Penal Code Section 190.2 Is Impermissibly Broad. ............. 2.20.0 c eee eee ee eee 285 xii € s £ 3 € 8 €2 32 € 8 € 2 3 € 3 £ S B € S B E R The Overly Broad Application of Penal Code Section 190.3, Subdivision (a) Allows Arbitrary And Capricious Imposition Of Death In Violation Of.The Fifth, Sixth, Eighth And Fourteenth Amendments To The United States Constitution. .................. 288 California’s Death Penalty Statute Contains No Safeguards To Avoid Arbitrary And Capricious Sentencing And Deprives Defendants Of The Right To A Jury Determination Of Each Factual Prerequisite To A Sentence of Death; It Therefore Violates The Sixth, Eighth, And Fourteenth Amendments To The United States Constitution. ......... 290co] aan Appellant's Death Verdict Was Not Premised on Findings Beyond a Reasonable Doubt by a Unanimous Jury That One or More Aggravating Factors Existed and That These Factors Outweighed Mitigating Factors; His Constitutional Right to Jury Determination Beyond a Reasonable Doubtof All Facts Essential to the Imposition of a Death Penalty Was Thereby Violated. .. 0...eeeeee eee eee es 291 a. In the Wake of Apprendi, Ring, Blakely, and Cunningham, Any Jury Finding Necessaryto the Imposition of Death Must Be Found True Beyond a Reasonable Doubt..................0........00005 294 b. Whether Aggravating Factors Outweigh Mitigating Factors Is a Factual Question That Must Be Resolved Beyond a Reasonable Doubt........................ 301 The Due Process and the Cruel and Unusual Punishment Clauses of the State and Federal Constitution Require That the Jury in a Capital Case Be Instructed That They May Impose a Sentence of Death Only If They Are Persuaded Beyond a Reasonable Doubt That the Aggravating Factors Exist and Outweigh the Mitigating Factors and That Death Is the Appropriate Penalty. ...................... eee eee 303 a. Factual Determinations. ..................0.000000050- 303 b. Imposition of Life or Death......................... 304 xiii 3. California Law Violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution by Failing to Require That the Jury Base Any Death Sentence on Written Findings Regarding Aggravating Factors.................... 306 4. California's Death Penalty Statute as Interpreted by the California Supreme Court Forbids Inter-case Proportionality Review, Thereby Guaranteeing Arbitrary, Discriminatory, or Disproportionate Impositions of the Death Penalty............ 309 5. The Prosecution May Not Rely in the Penalty Phase on Unadjudicated Criminal Activity; Further, Even If It Were Constitutionally Permissible for the Prosecutor to Do So, Such Alleged Criminal Activity Could Not Constitutionally Serve as a Factor in Aggravation Unless Found to Be True Beyond a Reasonable Doubt by a Unanimous Jury. ........... 311 6. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Acted as Barriers to Consideration of Mitigation by Appellant's Jury. ............. 312 7. The Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators Precluded a Fair, Reliable, and Evenhanded Administration of the Capital Sanction. 2... 2...neeeens 313 D. The California Sentencing Scheme Violates the Equal Protection Clause of the Federal Constitution by Denying Procedural Safeguards to Capital Defendants Which Are Afforded to Non- capital Defendants.............0. 0.000020.eee 316 E. California's Use of the Death Penalty as a Regular Form of PunishmentFalls Short of International Norms of Humanity and Decency and Violates the Eighth and Fourteenth Amendments; Imposition of the Death Penalty Now Violates the Eighth and Fourteenth Amendments to the United States Constitution. .......... 319 XXI. APPELLANT JOINS IN THE ARGUMENTS SUBMITTEDBY CO- APPELLANT JOSEPH MORA.......... 0.0.0.0. ce cee eee tenes 323 XIV 7- - taal cy ‘ied XXII. REVERSAL OF APPELLANT’S DEATH SENTENCEIS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS THAT COLLECTIVELY UNDERMINED THE FUNDAMENTALFAIRNESS OF THE ENTIRE TRIAL AND THERELIABILITY OF THE JUDGMENT OF DEATH. ............ 0.000.eeeeee 324 CONCLUSION. ... 0...eeeeee eens 326 CERTIFICATE OF COUNSEL. ..........0 020.000. ceneeee 327 XV TABLE OF AUTHORITIES CALIFORNIA CASES Abatti v. Superior Court (2003) 112 Cal.App.4th 39... 0.0...2.eeeee 45 Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374.... 0.00.00...ceeee 178 Carson v. Facilities Company (1984) 36 Cal.3d 830. 2.0...eeeeee 207 Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780... 0.0.0.0... 000.eeetees 64 Conservatorship ofRoulet (1979) 23 Cal.3d 219... 00.00.00 0.eneeee 304 Cummiskey v. Superior Court (1992) 3 Cal.4th 1018...... 0.00...eeeeee 142 Gomez v. Superior Court (1958) 50 Cal.2d 640. 20...eeeeee 145 Greenberger v. Superior Court (1990) 219 Cal.App.3d 487. 2.0...eeeeee 227 In re Brown (1998) 17 Cal.4th 873........ 0.0.0.0... ee eee ee eee 43, 46, 47, 50, 51, 54, 62 In re Carmaleta B. (1978) 21 Cal.3d 482. 0.0eeeeee 263 In re Carpenter (1995) 9 Cal.4th 634.....0.0..0. 00...eee 96, 97, 103, 261, 268 In re Gomez (2009) 45 Cal.4th 650... 0.0.0.eeeeee eae 318 XV1 no In re Hamilton (1999) 20 Cal4th 273.....0.0.00 00.00... eee 95, 98, 261, 266, 270 In re Hess (1955) 45 Cal.2d 171. 2.0nnne eens 147 In re Hitchings (1993) 6 Cal.4th 97.0.0...eens 93, 103, 267, 269 In re Jones (1996) 13 Cal.4th 552...0...nnneens 47 In re Littlefield (1993) 5 Cal.4th 122.....0.0 0000tenneee 43, 62 In re Malone (1996) 12 Cal.4th 935... 00000eee267 In re Marquez (1992) 1 Cal.4th 584... 0.0.0...eeenes 324 In re Sassounian (1995) 9 Cal.4th 535... 0.000eee49, 109, 128 In re Sheena K. (2007) 40 Cal.4th 875... 0.000000eens 236 In re Sturm (1974) 11 Cal.3d 258. 2...ceeeens 307 Izazaga v. Superior Court (1991) 54 Cal.3d 356. 2...eeeeee 45 Jennings v. Superior Court (1967) 66 Cal.2d 867. 22...ceeee eens 224, 225 People v. Edelbacher (1989) 47 Cal.3d 983. 0...eeenee 211, 285, 313 XVil People v. Adcox (1988) 47 Cal.3d 207. 20...ceteen eens 288 People v. Adrian (1982) 135 Cal.App.3d 335. 20...cneee ees 162 People v. Albarran (2007) 149 Cal.App.4th 214.... 0.0.0.0... 00.0ceee 87, 194 People v. Albertson (1944) 23 Cal.2d 550. 20...cneteens 196 People v. Albritton (1998) 67 Cal.App.4th 647.......0 0.00.00... cette eee 155 People v. Allen (1986) 42 Cal.3d 1222.2.eeeeee 296 People v. Anderson (1987) 43 Cal.3d 1104. 2...2.eeeeee 126, 131, 282 People v. Anderson (2001) 25 Cal.4th 543.0... 000000eens 215, 216, 298 People v. Arias (1996) 13 Cal.4th 92... 0.0.0.eneten nas 314 People v. Ashmus (1991) 54 Cal.3d 932. ................00.. 42, 87, 89, 197, 198, 213, 275, 276 People v. Ashraf (2007) 151 Cal.App.4th 1205........0.00. 0.0000ceceeens 42 People v. Ault (2004) 33 Cal.4th 1250... 20...cecee eens 73 People v. Avila (2006) 38 Cal.4th 491.0... 0.0.2eeeeee eee 264 XVili €8 s8 @ 8 € 8 © € 8 € 8 € 3 8 € 9 8 5 Lahad uke vm, eee mm ae et a, 7am oe eat Fad Whar People v. Ayala (2000) 23 Cal.4th 225... 0.20.00ene42,43 People v. Bamba (1997) 58 Cal.App.4th 1113........00 0.00000.ees237 People v. Barnes (1986) 42 Cal.3d 284. 2.0...eeeteen eee 109 People v. Barnett (1976) 54 Cal.App.3d 1046. 2.0... 2...eee208 People v. Barnwell (2007) 41 Cal.4th 1038..... 0.00.0...eeeeee 93 People v. Barton (1995) 12 Cal.4th 186.......0.0.0 0.0.00.eeeees 163 People v. Bassett (1968) 69 Cal.2d 122. 2...tenes 112 People v. Beeler (1995) 9 Cal4th 953...00eeeeee eee eee 231 People v. Bell (2004) 118 Cal.App.4th 249.0... 0.0.0.0... 0.2ee 58, 60, 61 People v. Belmontes (1988) 45 Cal.3d 744. 20.0.teeneee 194 People v. Benavides (2005) 35 Cal.4th 69.......0 0000.eee57 People v. Benson (1990) 52 Cal.3d 754. 20...eeeeens 208, 209 People v. Bittaker (1989) 48 Cal.3d 1046. 2...cetteeee 289 X1X People v. Black al.4th 1238.0... eene eee eee(2005) 35 Ca th 1238 296 People v. Blair 2005) 36 Cal.4th 686.........0 0.0002eeene eens 200( People v. Bloom (1989) 48 Cal.3d 1194. 00...teeneee eee 203 People v. Bohannon (2000) 82 Cal.App.4th 798... 0.0.0...00eeeeas 49 People v. Bolin (1998) 18 Cal.4th 297.0...eeenee nee 215 000 al.4th 1 153.i144 1 15 People v. Boyd (1985) 38 Cal.3d 765. 2...eeeteens 315 People v. Boyette (2002) 29 Cal.4th 381.0... 0...eeeteenie 233 People v. Bradford (1997) 15 Cal.4th 1229... 00...eee 142, 144 People v. Breverman (1998) 19 Cal.4th 142.0... 0.00.0eee 200, 249, 252 People v. Brock (1985) 38 Cal.3d 180. 20...eeenee eens 74 People v. Brown (1985) 40 Cal.3d 512. 2...tenes 215, 296 People v. Brown (1988) 46 Cal.3d 432. .........0.........0... 87, 180, 197, 253, 295, 324, 325 XX e s € 8 ¢€ 48 on People v. Brown (1989) 216 Cal.App.3d 596. 2.0...ceeeee 109, 128 People v. Brown (2003) 31 Cal.4th 518.......0.0.0.. 20.0000.ceeee 264-266 People v. Brown (2004) 33 Cal.4th 382......... 2000000000. 238 People v. Burgener (1986) 41 Cal.3d 505. 2...eeeeee 101 People v. Burnick (1975) 14 Cal.3d 306... 0.0.0.0.ceneen e eens 304 People v. Burton (1971) 6 Cal.3d 375. 2...eee115, 162 People v. Cabral (2004) 121 Cal.App.4th 748... 20.0... 0.0.00.cceee eee 58, 61 People v. Cain (1995) 10 Cal.4th 1.0...tees 110, 128 People v. Carey (2007) 41 Cal.4th 109... 2.0.0.0...eeeeee 247 People v. Carpenter (1997) 15 Cal.4th 312...................... 144, 150, 151, 153, 229, 244, 314 People v. Catlin (2001) 26 Cal.4th 81.0.0...000.0. 168 People v. Champion (1995) 9 Cal.4th 879... 000eeeeet teen eens 81, 188 People v. Cleveland (2004) 32 Cal.4th 704...... 20.0.0...cceee eenees 176 XXi People v. Coddington (2000) 23 Cal.4th 529... 0.2...eens45, 280 People v. Coefield (1951) 37 Cal.2d 865. 2...cetteeee eae 156 People v. Coffman (2004) 34 Cal.4th 1...ceeee tenes 64, 208 People v. Cole (2004) 33 Cal.4th 1158....... 2.0.0.0...eetenes 168 People v. Collins (1976) 17 Cal.3d 687. 2.0...eeeeee eae 154 People v. Collins (2001) 26 Cal.4th 297.0...eeeene eee enes 269 People v. Conley (1966) 64 Cal.2d 310. 2...eeneens 207 People v. Cook (2006) 39 Cal.4th 566......... 20.002.eens 45 People v. Cornwell (2005) 37 Cal.4th 50....... 20.0...0.eeee eee e eee 168 People v. Cox (1991) 53 Cal.3d 618. 2.2.2.0...eee 83, 85, 190, 191, 244 People v. Crittenden (1994) 9 Cal.4th 83.0.0... 00.ceeee eee 176, 177 People v. Cromer (2001) 24 Cal.4th 889... 0.0.0.0.eee236 People v. Cruz (2008) 44 Cal.4th 636......... 0.0.0.0. 22eeeeee 233, 314 xxii e s € 3 €8 2@ € 8 3 # € 8 € B € e B t e w e w w e e ) et le ts tl Uc e) ec h u e ah Uc el ca el lm el c8 lh lU me U) U am a wr om People v. Cudjo (1993) 6 Cal.4th 585.... 20.0... 0.2cceee 81, 188 People v. Daniels (1991) 52 Cal.3d 815. 2...ceeee eens 266 People v. Danielson (1992) 3 Cal.4th 691...... 00...ceeee eee ee 188 People v. Danks (2004) 32 Cal4th 269..... 2.0.0...eee 103 People v. Davis (1984) 161 Cal.App.3d 796. 2.0...cee263 People v. Davis (1994) 7 Cal.4th 797...0.eeeee ee eee 282 People v. DeJesus (1995) 38 Cal.App.4th 1.0...eeeeee 81, 188 People v. Demetroulias (2006) 39 Cal.4th 1...eeeee 296, 308, 317 People v. Dickey (2005) 35 Cal.4th 884..... 0.00...teens 296 People v. Dillon (1983) 34 Cal.3d 441. ..............00...0.0. 143-145, 150, 151, 153, 156, 286 People v. Duarte (2000) 24 Cal.4th 603...... 0.0.0...eee82 People v. Duncan (1991) 53 Cal.3d 955. 2.ceeeee ees 215 People v. Duran (1996) 50 Cal.App.4th 103............0.. 00.0.0. ceeeee 260 XXill People v. Dyer (1988) 45 Cal.3d 26. 20...cence nee 73, 288 People v. Dykes (2009) 46 Cal.4th 731...... 20.0000eeeeeeee 289 People v. Earp (1999) 20 Cal.4th 826...... 0000...eeeees 162 People v. Easley (1983) 34 Cal.3d 858.2.eeeens 206 People v. Edwards (1991) 54 Cal.3d 787. 20...eeeee 233, 238, 239, 250, 251 People v. Engelman (2002) 28 Cal.4th 436.0... 00.000.eeetenes 262 People v. Ervine (2009) 47 Cal.4th 745.00...00eeeeens 289 People v. Fairbank (1997) 16 Cal.4th 1223..... 2.2.0.0...eee 292, 295, 307 People v. Farnam (2002) 28 Cal.4th 107.. 2.0.00. 00.eeeeee 295 People v. Farris (1977) 66 Cal.App.3d 376. 2.0...eeeeee tenes 95 People v. Fauber (1992) 2 Cal.4th 792... 0.00.00.eens 217, 307 People v. Feagley (1975) 14 Cal.3d 338. 2...eeeeee 154, 304 People v. Fierro (1991) 1 Cal.4th 173.00... 0000.ceeeens 238, 311 XXIV a ae oo Getat People v. Flood (1998) 18 Cal.4th 470... 0.00000.eeeeee 66, 147 People v. Fontana (1982) 139 CalApp.3d 326. 22...eneeee 224 People v. Frye (1998) 18 Cal.4th 894... 0.00.0...0.eeeee 224, 229 People v. Funes (1994) 23 Cal.App.4th 1506...... 2.00...0.eee 84 People v. Galloway (1927) 202 Cal. 81. 2...teenees 269 People v. Galloway (1979) 100 Cal.App.3d 551. 2...neeee 67 People v. Garcia (2001) 89 CalApp.4th 1321......... 00.0.0... eeeeee 260, 261 People v. Garrison (1989) 47 Cal.3d 746. 0.0.0...ttnnes 115, 135 People v. Gibson (1895) 106 Cal. 458. 2.0eeenee 155 People v. Gibson (1976) 56 Cal.App.3d 119. 2.0...ees89, 196 People v. Gonzales (1990) 51 Cal.3d 1179. 22...eens 172 People v. Gonzalez (2006) 38 Cal.4th 932........ 0.0.0.0...eeeee 87, 197 People v. Gordon (1990) 50 Cal.3d 1223. 2...eeeeee nee 230 XXV People v. Granados (1957) 49 Cal.2d 490. 200.teens 57 People v. Granice (1875) 50 Cal. 447.20eeeenn neces 141 People v. Green (1980) 27 Cal.3d 1. 0.2...ee 115, 120, 122, 163, 280 People v. Guiton (1993) 4 Cal.4th 1116........ 20.0... 0.0.00 eee eee eee 66, 121, 122, 136 People v. Gurule (2002) 28 Cal.4th 557..............-22.00. 83, 85, 87, 190, 191, 193, 194, 203 People v. Guthrie (1983) 144 Cal.App.3d 832. 2.0...eens 156 People v. Hall (1986) 41 Cal.3d 826. 2.0...0.eeeeee 280 People v. Hamilton (1989) 48 Cal.3d 1142. 2...teeneens 313 People v. Hamilton (2009) 45 Cal.4th 863......... 20.0...0ceens 201, 279 People v. Hansen 1994) 9 Cal.4th 300... 2.0.0.0... 0.ceeeens 141( People v. Hardy (1992) 2 Cal.4th 86...... 0.0.0.0... 2cteen eee 211, 289 People v. Harper (1986) 186 Cal.App.3d 1420. 22...eeeen 261 People v. Harris (2008) 43 Cal.4th 1269... 0.0.20... 000.eens 166 XXV1 7: were, am People v. Hart (1999) 20 Cal.4th 546.......0. 0000. .ceeenee 144, 153, 157 People v. Hawthorne (1992) 4 Cal.4th 43.0000...00eeeeee 295, 308 People v. Hayes (1985) 172 Cal.App.3d 525. 0.0.2.0eeenes 67 People v. Hayes (1990) 52 Cal.3d 577. 00...eeetenet eens 324 People v. Hayes (1999) 21 Cal.4th 1211...... 0.0.0.2eee262, 264 People v. Heard (2003) 31 Cal.4th 946........ 0.0.02eeeee eee 203 People v. Hedgecock (1990) 51 Cal.3d 395. 2...eens 261, 262, 264 People v. Henderson (1963) 60 Cal.2d 482. 20...tenes 145, 151 People v. Henderson (1977) 19 Cal.3d 86. 2...2.ceete eee neee 147 People v. Hernandez (1988) 47 Cal.3d 315. 00...ceeens 123, 156, 202 People v. Hernandez (2003) 111 Cal.App.4th 582........ 00.0002.ene66 People v. Hernandez (2004) 33 Cal.4th 1040........ 20.0.0...ceeeens 85, 191 People v. Hightower (2000) 77 Cal.App.4th 1123........ 0.0.0...eeeeee 101 XXVIi People v. Hill (1998) 17 Cal.4th 800..... 00.0.0...ceeeeeens 120, 179 People v. Hillhouse (2002) 27 Cal.4th 469...... 0.0.0.0. eeeeee 287 People v. Hinton (2006) 37 Cal.4th 839...... 0.0.0.0.2teeneee 211 People v. Holloway (2004) 33 Cal.4th 96... 0.0.0.0...eeeeens 93 People v. Holt (1984) 37 Cal.3d 436. 20...cctenes 180 People v. Holt (1997) 15 Cal.4th 619... 20.00.0002eens 108, 128 People v. Honig (1996) 48 Cal.App.4th 289... 0.0...0eens 156 People v. Horning (2004) 34 Cal.4th 871... .... 000...eeeene 115 People v. Howard (1988) 44 Cal.3d 375. 2...eeenee 163, 229 People v. Hoyos (2007) 41 Cal.4th 872.....0. 00.0000ceeeens 49 People v. Huggins (2006) 38 Cal.4th 175...0.0eeeee eee 111 People v. Hughes (2002) 27 Cal.4th 287... 0.0.0.0...eens 142, 143 People v. Jackson (1996) 13 Cal.4th 1164..... 0.0.0.0...2.eeeee 230 XXVili em Sed People v. Jenkins (2000) 22 Cal.4th 900... 0...eeeeens 229 People v. Jennings . (1991) 53 Cal.3d 334. 2...ees 176, 177 People v. Johnson (1980) 26 Cal.3d 557. 2...teeneens 109, 112 People v. Johnson (1993) 6 Cal4th 1...eeeeee 216 People v. Jones (1999) 17 Cal.4th 279.000ceene eee 95, 223 People v. Jones (2003) 29 Cal.4th 1229... 0.0.0.0...nee 155 People v. Jones (2003) 30 Cal.4th 1084.. 0.2... 20.0.0... 0.ceeens 135 People v. Kainzrants (1996) 45 Cal.App.4th 1068.........0 20.00.0000 0eee 177 People v. Kasim (1997) 56 Cal.App.4th 1360..........0 20.0... 002eeee 49 People v. Keenan (1988) 46 Cal.3d 478. 200.eens95,101 People v. Kelly (1992) 1 Cal.4th 495.0... 20.0.0...eeeeens 123 People v. Kelly (2007) 42 Cal.4th 763...... 20.0...0ceeteens 233 People v. Kennedy (2005) 36 Cal.4th 595.0...eeneens 87, 89, 196 XXiX People v. Kipp (2001) 26 Cal.4th 1100.......... 0.0...00000 150, 151 People v. Kobrin (1995) 11 Cal.4th 416...... 000.0...ceeee eens 147 People v. Koontz (2002) 27 Cal.4th 1041........0... 0.00ees 249, 252 People v. Kraft (2000) 23 Cal.4th 978.0... 0.0...cette eens 236, 314 People v. Kunkin (1973) 9 Cal.3d 245. 2.0.0eteen eee 109 People v. Lambright (1964) 61 Cal.2d 482. 2...eeneee 100 People v. Lawson (2005) 131 Cal.App.4th 1242.......0. 00.000022eee 58 People v. Ledesma (2006) 39 Cal.4th 641........ 000... 0.2cee280 People v. Lewis (2001) 25 Cal.4th 610...... 0.0.0.0...eee 112,114 People v. Lewis (2006) 39 Cal.4th 970... 0.0.0.0... 0. ceeeee eee 43, 233, 242 People v. Little (1997) 59 Cal.App.4th 426......0.0..0. 00.0... 0.ceeee 44, 62 People v. Lucas (1995) 12 Cal.4th 415.0... 0.00.00.eeetenes 93 People v. Lucero (2000) 23 Cal.4th 692.. 0.0.0.0...0.eeeee eens 244 XXX 7 — Ly 2am om a. People v. Luparello (1986) 187 Cal.App.3d 410. 2...ceeeee 84 People v. Maddox (1967) 67 Cal.2d 647. 2...eteeens 227 People v. Maestas (1993) 20 Cal.App.4th 1482..... 0.00000...eeeeee 87, 194 People v. Majors (1998) 18 Cal.4th 385.0...0ceeee ee 267 People v. Marshall (1990) 50 Cal.3d 907. 2...eeeee 96, 311 People v. Marshall (1996) 13 Cal.4th 799... 0...enceee eens 93 People v. Marshall (1997) 15 Cal.4th 1.0... 02. ee eee. 108, 111, 115, 116, 119, 123, 138 People v. Martin (2000) 78 Cal.App.4th 1107... 0.0.20... 0.0.0...eeeee 161 People v. Martinez (1978) 82 Cal.App.3d 1. 2.2...eeeene 261 People v. Martinez (1999) 20 Cal.4th 225.0... 2...0eens280 People v. Martinez (2004) 31 Cal.4th 673...... 00.0...ceetnies 211 People v. Massie (1967) 66 Cal.2d 899. 200cecettn eens 263 People v. Maury (2003) 30 Cal.4th 342.0... 0000...eeeeee 207 XXX1 People v. McLead (1990) 225 Cal.App.3d 906. .. 0...eeeeee 115 People v. McPeters (1992) 2 Cal.4th 1148.0... 0.0...ceeeens 276 People v. Medina (1995) 11 Cal4th 694...000eeeeee 266 People v. Melton (1988) 44 Cal.3d 713. 20...cetteeee 274 People v. Memro (1996) 11 Cal.4th 786..... 0.0.0...eeeeee 202, 314 People v. Mendoza (2000) 24 Cal.4th 130...... 0.0.0...ceeee 166, 194 People v. Mickey (1991) 54 Cal.3d 612.2.0.2223, 224 People v. Miller (1999) 69 CalApp.4th 190...... 0.0.0... 0.eeeeee 163 People v. Millwee (1998) 18 Cal.4th 96........0 0.0.00.ceeeens 155 People v. Miranda (1987) 44 Cal.3d 57. 2.02.eeeteens 108 People v. Molina (2000) 82 Cal.-App.4th 1329... 0.0.0...eee66 People v. Monterroso (2004) 34 Cal.4th 743.0... 0.0.00eeetees 274, 276 People v. Montiel (1994) 5 Cal.4th 877.0... 20.00...enenets 314 XXXil ao Ad People v. Moon (2005) 37 Cal.4th lo... 2... eeePoe eee ee eee eee eee 280 People v. Morgan (2007) 42 Cal.4th 593... 0...cette 142 People v. Morris (1988) 46 Cal.3d 1.0...eeeee 109, 114, 116, 128 People v. Morris (1991) 53 Cal.3d 152. 0...eee 273-276, 278 People v. Morrison (2004) 34 Cal.4th 698... 0.000enne eens 314 People v. Murat (1873) 45 Cal. 281. 0.ceeeee 141 People v. Murphy (1963) 59 Cal.2d 818. 0...eeetee eee nee 224 People v. Murtishaw (1989) 48 Cal.3d 1001. 2...eecee 249, 252 People v. Nakahara (2003) 30 Cal.4th 705....... 00...eeeee eee 144, 150, 151 People v. Navarette (2003) 30 Cal.4th 458.00...eneeens 116 People v. Nesler (1997) 16 Cal.4th 561........ 0.0.0... 0 eee eee 95, 102, 104, 268, 270 People v. Nicolaus (1991) 54 Cal.3d 551. 0...eteeens 288 People v. Noguera (1992) 4 Cal.4th 599...cetteee eee 176 XXXili People v. Ochoa (1998) 19 Cal.4th 353........2..........0.200200- 45, 53, 204, 207, 230, 237 People v. Ochoa (2001) 26 Cal.4th 398... 0.0.0...cece nee 110, 211, 212 People v. Olguin ; (1994) 31 Cal.App.4th 1355.0... 20.00.eeeeens 84 People v. Olivas (1976) 17 Cal.3d 236. 0...eeneee eee 316, 317 People v. Osband (1996) 13 Cal.4th 622...... 0.0...eeeee 93, 207 People v. Owens (1994) 27 Cal.App.4th 1155... 0.20.00...eeeeee eee 66 People v. Perez (1961) 189 Cal.App.2d 526... 2...ceeee 79 People v. Perez (1981) 114 Cal.App.3d 470. 2...2.eeeee 87, 194 People v. Perez (2005) 35 Cal.4th 1219... 0.0.0...eetees 136 People v. Pierce (1979) 24 Cal.3d 199. 2...neetenes 120 People v. Pollack (2005) 32 Cal.4th 1153... 0.0.0.0...ceeee 119, 252 People v. Pride (1992) 3 Cal.4th 195.0... 0...cenee teenies 144 People v. Prieto (2003) 30 Cal.4th 226........ 0.00... eee ee eee 262, 264, 296, 299 XXXIV People v. Pulido (1997) 15 Cal.4th 713.0... 0.0.00teeneee 57 People v. Ray (1996) 13 Cal.4th 313.......0..00 0.20.00...eee216 People v. Reynolds (1988) 205 Cal.App.3d 776. 20...cecenee eee 163 People v. Riel (2000) 22 Cal.4th 1153... 0.0.0.0...eens 176 People v. Riggs (2008) 44 Cal.4th 248.0... 0.0.0.0...ceeeens 58, 63 People v. Rincon-Pineda (1975) 14 Cal.3d 864. 0.0.0.0...0.eee57, 163, 200 People v. Robinson (2005) 37 Cal.4th 592... 0.0.20... 0.eeeee 239, 242, 289 People v. Roder (1983) 33 Cal.3d 491. 2...ctnee 169,171 People v. Rodriguez (1986) 42 Cal.3d 730. 20...teene nee 73 People v. Roe (1922) 189 Cal. 548. 2...eeeeee 67 People v. Rogers (2006) 39 Cal.4th 826.......... 00000.eens307 People v. Roland (1992) 4 Cal.4th 238....... 2000.00.eeeee 110, 128 People v. Roldan (2005) 35 Cal.4th 646.. 0.0.0.0... 000.eteeee 162 XXXV People v. Rowland (1992) 4 Cal.4th 238... 2.200.000 eeeeens 110 People v. Roybal (1998) 19 Cal.4th 481.0... 0.0.0.0... 0 02ceneee 223 People v. Runnion (1994) 30 Cal.App.4th 852.0... 20.0.0...eet e eens 57 People v. Russell (2006) 144 Cal.App.4th 1415.0... 2.00...eetee 57 People v. Saille (1991) 54 Cal.3d 1103. 2.2...eeeee 57, 162, 200, 207 People v. Sakarias (2000) 22 Cal.4th 596....... 20.0.0. enetenes 153 People v. Salcido (2008) 44 Cal.4th 93.0.0... 0.0.0.0...eens 233, 237 People v. Sanchez (1950) 35 Cal.2d 522.20teens206 People v. Sanders (1995) 11 Cal.4th 475.00...0.eens216 People v. Sandoval (1992) 4 Cal.4th 155... 0.0.0.0 .0 .002eens 81, 188 People v. Sapp (2004) 31 Cal.4th 240....... 0.000...eeeeee 280 People v. Saucedo (2004) 121 Cal.App.4th 937......0.000.00. 58 People v. Schmeck (2005) 37 Cal.4th 240......0 0.0.0.0...eee eee eee 264 XXXVI People v. Scott (1997) 15 Cal4th 1188......... 0.0...0cteens 191 People v. Sears (1970) 2 Cal.3d 180. ........ pte teens 57, 115, 120, 159, 162, 200 People v. Sedeno (1974) 10 Cal.3d 703. 2.0...nette teen nee 163 People v. Sengpadychith (2001) 26 Cal.4th 316........ 0.0...ceeee eee 169 People v. Serrato (1973) 9 Cal.3d 753. 2...ceteens 175 People v. Silva (2001) 25 Cal.4th 345.0... 000.0eeeee eee 151 People v. Smith (2003) 30 Cal.4th 581....... 0.0.0...eeeens 252 People v. Smithey (1999) 20 Cal.4th 936... 0.2.0.0...0.2eeeee 229 People v. Snow (2003) 30 Cal.4th 43.......00 00.0000eeeee 216, 225, 296 People v. Soto (1883) 63 Cal. 165. 2...eeeee 142 People v. St. Martin (1970) 1 Cal.3d 524. 2...eee$7 People v. Stansbury (1995S) 9 Cal.4th 824... 000...eeeene eee 274 People v. Staten (2000) 24 Cal.4th 434.0...00.ceeee eee 260 XXXVI People v. Steel (2002) 27 Cal.4th 1230....... 0.0.0...eeenn eens 64 People v. Stegner (1976) 16 Cal.3d 539. 2...eeeeee 156 People v. Stewart ; (1983) 145 Cal.App.3d 967. 2.0...eens 177 People v. Stines (1969) 2 Cal.App.3d 970. 2.2...eteeee 207 People v. Thomas (1945) 25 Cal.2d 880. 2.0...neeee 155, 156 People v. Thomas (1977) 19 Cal.3d 630. 2...2.eeeeee 304 People v. Thompson (1980) 27 Cal.3d 303. 2.2.2...eee eee 112, 114, 116, 117, 124 People v. Thornton (2007) 41 Cal.4th 391... 0.0.0.0...eeteenies 64 People v. Thurmond (1985) 175 Cal.App.3d 865. 2.0...eens67 Peoplev. Tuilaepa (1992) 4 Cal.4th 569... 000...eeneee 194, 236, 289 People v. Underwood (1964) 61 Cal.2d 113. 2.2.2...22eens 79 People v. Visciotti (1992) 2 Cal.4th 1.0...eeeeee eee 157 People v. Waidla (2000) 22 Cal.4th 690.......... 0.0.0.0... eee ee eee 56, 81, 188, 201, 236 XXXVili People v. Walker (1988) 47 Cal.3d 605. 2...ceteee eee 288 People v. Watson (1956) 46 Cal.2d 818. 2.ceceees 48, 232 People v. Watson (1981) 30 Cal.3d 290. 2.0...eens 141, 145 People v. Welch (1999) 20 Cal.4th 701... 0.0...eecteee eens 64 People v. Westlake (1899) 124 Cal. 452.0neeeeee 177 People v. Williams (1969) 71 Cal.2d 614. 2...enetenes 175 People v. Williams (1971) 22 Cal.App.3d 34. 20...eeeeee 179 People v. Williams (1988) 44 Cal.3d 883. 2.0...ttee eens 207 People v. Williams (1997) 16 Cal.4th 153......................0.. 84, 87, 94, 127, 129, 135, 261 People v. Williams (2001) 25 Cal4th 441......0.0 000.0000 0cceeeens 266 People v. Wilson (1969) 1 Cal.3d 431. 2...etnies 115 People v. Witt (1915) 170 Cal. 104.2.eee142, 143 People v. Wright (1985) 39 Cal.3d 576. 2...teeeee 47 XXX1X People v. Wright (1988) 45 Cal.3d 1126. 2...teeeee 163 People v. Yeoman (2003) 31 Cal.4th 93.0.0... eeeeee 275 People v. Young (2005) 34 Cal.4th 1149...... 00...eeeee 274 People v. Zambrano (2007) 41 Cal.4th 1082.00.00... 0000.eeete eee 49 People v. Zapien (1993) 4 Cal.4th 929...0eeeeens 224, 229 Rogers v. Superior Court (1955) 46 Cal.2d3. 0...eeeeee 141 Sharon S. v. Superior Court (2003) 31 Cal.4th 417... 20.00.0000.cenceeens 156 Tapia v. Superior Court (1991) 53 Cal.3d 282. 20...eeeteens 131 Westbrook v. Milahy (1970) 2 Cal.3d 765. 22...ceeenn nae 317 FEDERAL CASES Addington v. Texas (1979) 441 US. 418.000.0002ees 302, 304, 306 Apprendi v. New Jersey (2000) 530 U.S. 466...................004. 146, 154, 157, 292, 296, 297, 312 Arave vy. Creech (1993) 507 U.S. 463.00eeeeens 245, 281 xl Arizona v. Fulminante (1991) 499 U.S.279.eeent eee eee 324 Atkins v. Virginia (2002) 536 U.S. 304...eeeeee 321, 322 Beck v. Alabama (1980) 447 U.S. 625... ....0... 00.02 94, 108, 119, 147, 154, 170, 180 Belmonte v. Ayers (9th Cir. 2008) 529 F.3d 834. 20...eeeeee 227 Bennet v. Scroggy (6th Cir. 1986) 793 F.2d 772. 2...eee228 Blakely v. Washington (2004) 542 U.S. 296.2...eee 292, 293, 296, 297, 312 Blockberger v. United States (1932) 284 U.S. 299...ete 151-153 Booth v. Maryland (1987) 482 U.S. 496...ceeences 237 Boyde v. California (1990) 494 U.S. 370.2.eeeeee 276 Brady v. Maryland (1963) 373 US.83...eeeeee 45, 53 Brookhart v. Janis (1966) 384 U.S. 1...teeneee eee 75 Brown v. Louisiana (1980) 447 U.S. 323...eeeeee 154 Brown v. Sanders (2006) 546 U.S.212...eeeeens 124 xli Bullington v. Missouri (1981) 451 U.S. 430.202.eee302, 306 Burks v. United States (1978) 437 US.1.nenttenn eennee 120 Bush v. Gore (2000) 531 U.S. 98...eeeee eens 319 Cage v. Louisiana (1990) 498 U.S.39.eeeee 169, 173 Caldwell v. Mississippi (1985) 472 U.S. 320... 0.0.0... ee ee eee 98, 180, 202, 231, 269, 277, 325 California v. Brown (1987) 479 U.S. 538...eee194, 215, 306 California v. Green (1970) 399 U.S. 149.eeeene enes 74 Campbell v. Blodgett (9th Cir. 1993) 997 F.2d 512. 22.eens 315 Carella v. California (1989) 491 U.S. 263.0...eeetenes 170, 178 Carriger v. Stewart (9th Cir. 1997) 132 F.3d 463. 2...ettte ee 46 Carter v. Kentucky (1981) 450 U.S. 288.00.eeeten eeee 200 Chambers v. Mississippi (1973) 410 U.S. 284. 0.2.tenceeens 179 Chapmanv. California (1967) 386 U.S. 18..... 49, 66, 69, 73, 87, 89, 129, 179, 180, 197, 198, 204, 210, 213, 232, 253, 279, 325 xlti Clemons v. Mississippi (1990) 494 U.S. 738. 2...ceeeee ences 278 Collins v. Youngblood (1990) 497 U.S. 37.0.etenee eee teenies 131 Conde v. Henry (9th Cir. 1999) 198 F.3d 734. 20.ceetee eee 65 Cunningham vy. California (2007) 549 U.S. 270...eteene nae 292, 294 Davis v. Alaska (1974) 415 ULS. 308...neeeens 73-75 Dawson vy. Delaware (1992) 503 U.S. 159.2.cenceene 191, 192 DeJonge v. Oregon (1937) 299 U.S. 353...teeeee eens 147 Delaware v. Van Arsdall (1986) 475 U.S. 673...eeeene eens 73-75 Donnelly v. DeChristoforo (1974) 416 ULS. 637.02cnete eens 179, 180 Douglas v. Alabama (1965) 380 U.S. 415.00cettenee nes 74 Drayden v. White (9th Cir. 2000) 232 F.3d 704. 2.2...nee252 Duncan v. Louisiana (1968) 391 U.S. 145.00eeeeee 269 Dunn v. United States (Sth Cir. 1962) 307 F.2d 883. 20...eens 196 xii Dyer v. Calderon (9th Cir. 1997) 113 F.3d 927. 2...eee96 Dyer v. Calderon (9th Cir. 1998) 151 F.3d 970. .........0........22005. 95, 101, 262, 269, 270 Eddings v. Oklahoma (1982) 455 U.S. 104.2...cenceeens 167, 230 Estelle v. McGuire (1991) 502 U.S. 62.0000eeeteen eens 177, 276 Fahy v. Connecticut (1963) 375 U.S. 85.0enneen e nee nnes 204 Fetterly v. Puckett (9th Cir. 1993) 997 F.2d 1295. 2...eee 209, 213, 278, 315 Ford v. Wainwright (1986) 477 U.S. 399...ceeee teen eens 322 Francis v. Franklin (1985) 471 ULS. 307. eenene 67, 171, 177 Furman v. Georgia (1972) 408 U.S. 238. .................. 209, 213, 217, 273, 280, 282, 287, 310 Gardnerv. Florida (1977) 430 U.S. 349.00tenes 248, 304 Gavieres vy. United States (1911) 220 U.S. 338.00.enee teens 152 Geders v. United States (1976) 425 ULS. 80. .eeeees 227 Gilmore v. Taylor (1993) 508 U.S. 333... 0...nents269 xliv Godfrey v. Georgia (1980) 446 U.S. 420. .........0..02.....000.2. 209, 213, 217, 246, 248, 277, 290 Green v. United States (1957) 355 U.S. 184.00eee145 Gregg v. Georgia (1976) 428 U.S. 153. .....0......00 02222006. 209, 213, 246, 247, 273, 277, 306 Griffin v. United States (1991) 502 U.S. 46...cencenes 121, 136 Hamling v. United States (1974) 418 U.S. 87.00eee146 Harmelin v. Michigan (1991) 501 U.S. 957.000etteee nee 308 Herrera v. Collins (1993) 506 U.S. 390.20cencenets 269 Herring v. New York (1975) 422 U.S. 853.00cetenet eee eee 64 Hicks v. Oklahoma (1980) 447 U.S. 343.00ees 154, 209, 213, 278, 315 Hilton v. Guyot (1895) 159 US.113.eee320, 321 Hitchcok v. Dugger (1987) 481 U.S. 393.00tenceeens 325 Holland v. Donnelly (S.D.N.Y. 2002) 216 F.Supp.2d 227. 2.0...nes 203 Holloway v. Arkansas (1978) 435 U.S.475. 0.ceeen ene eee eens 265 xlv Holmanv. Page (7th Cir. 1996) 95 F.3d 481. 2...eee203 Hughes v. Borg (9th Cir. 1990) 898 F.2d 695. 2...eee96 In re Winship (1970) 397 U.S. 358... 0.0... 2 eee ee eee 108, 122, 127, 169, 172-175, 303 Irvin v. Dowd (1961) 366 U.S. 717.00eee94, 103, 269, 270 Jackson v. Denno (1964) 378 U.S. 368... 0...eeeeee eeae 100 Jackson v. Virginia (1979) 443 U.S. 307... 0...eee eee 107, 108, 110, 114, 128, 170 Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. 110...eeeeee eee 321 Jeffries v. Wood (9th Cir. 1997) 114 F.3d 1484. 20...eee267 Johnson v. Mississippi (1988) 486 U.S. 578.0...eeeee 180, 193, 213, 277, 311 Jones v. United States (1999) 526 U.S. 227...eeee tenn enna 151 Kansas v. Marsh (2006) 548 U.S. 163... 0.2.20... 02nee283, 309, 311 Keating v. Hood (9th Cir. 1999) 191 F.3d 1053. 2...eee 122 Knighton v. Mullin (10th Cir. 2002) 293 F.3d 1165. 2...eens 47 xlvi Kolender v. Lawson (1983) 461 U.S. 352...eneeee nee 237 Kyles v. Whitley (1995) 514 U.S. 419...eeeeee 46, 49, 50, 54, 62, 65 Lawsonv. Borg t Ir. 5 . eee ee ee ee eee eee ee ee eee eee eee eens(9 h Cir. 199 ) 60 F.3d 608 270 Lee v. Kemma (2002) 534 U.S. 362.00.neeeeee 226 Lewis v. Jeffers (1990) 497 U.S. 764.20eeeeee 280, 281 Lindh v. Murphy (1997) 521 U.S. 320.2.etteees 267 Lockett v. Ohio (1978) 438 U.S. 586...nee 193, 206, 277, 312 Luna v. Cambria 9th Cir. 2002) 306 F.3d 954. 00...ceeeee eee 67( ) Martin v. Waddell's Lessee (1842) 41 U.S. 367. 2...eeeeee eee 320 Martinez v. Garcia (9th Cir. 2004) 379 F.3d 1034. 2...eeeee 122 Maryland v. Craig (1990) 497 ULS. 836. 2...eens74, 76 Maynard v. Cartwright (1988) 486 U.S. 356. 2.eecette eee eee 290 Miller v. United States (1871) 78 U.S. 268.00.ncnteen enes 320 xlvii Mills v. Maryland (1988) 486 U.S. 367... .......2 0.0022. 193, 230, 269, 277, 308, 312, 319 Monge v. California (1998) 524 ULS. 721.00cenee 152, 153, 302, 306, 316 Morgan vy.Illinois (1992) 504 U.S. 719.2eneeens 86, 94, 189 Morris v. Slappy (1983) 461 U.S. 1.0.00...eeenee 225,227 Mullaney v. Wilbur (1975) 421 U.S. 684. 0.000.eeee teens 172 Murray v. Giarratano (1989) 492 US.1.ceceene nen e ees 154 Myersv. Ylst (9th Cir. 1990) 897 F.2d 417...0.eee308, 319 Olden v. Kentucky (1988) 488 U.S. 227.ceceee eee 73 Owens v. United States (7th Cir. 2004) 387 F.3d 607. 2...ceeee eeee 203 Parker v. Gladden (1966) 385 U.S. 363... 0...neeeens 95 Parle v. Runnels (9th Cir. 2007) 505 F.3d 922. 2...eee179 Patton v. Yount (1984) 467 U.S. 1025. 2.0.enee teens 268 Payne v. Tennessee (1991) 501 U.S. 808... 0.20... 0 eeeee ee 233, 237-239, 242, 252 xviii 2 2 F S E B E B €R B O B FS B E S E S Penry v. Lynaugh (1989) 492 U.S. 302...eteeen eens 193, 277 Perry v. Leek . (1989) 488 U.S. 272...cetteeens 232 Pointer v. Texas (1965) 380 U.S. 400. 2...tenneee 74 Presnell v. Georgia (1978) 439 U.S. 14...eetee ene eens 304 Pulley v. Harris (1984) 465 U.S. 37.0...cetteeens 283, 310 Raley v. Ylst (9th Cir. 2006) 444 F.3d 1085. 22...eee270 Remmerv. United States (1954) 347 U.S.227.eects262 Remmer v. United States (1956) 350 U.S. 377.00nette eee eee 262 Richardson v. United States (1999) 526 ULS. 813.00.eeeeee 151, 156 Ring v. Arizona (2002) 536 U.S. 584.00...ceeee 157, 292, 308, 312, 319 Romano v. Oklahoma (1994) SIZ U.S.1.nnne eae 86, 192 Roper v. Simmons (2005) 543 US. 551.0000.ceeee ete nnn ee 202 Sandstrom v. Montana (1979) 442 U.S. 510.2teeneeee 122,171 xlix Santosky v. Kramer (1982) 455 U.S. 745.0.eeetenes 302, 304 Sattazahn v. Pennsylvania (2003) 537 U.S. 101.2.eens152 Schad v. Arizona (1991) 501 U.S. 624.2.eeeeens 154, 155 Simmons v. South Carolina (1994) 512 U.S. 154...eeeeeens 196 Skinner v. Oklahoma (1942) 316 U.S. 535.00.neces 317 Skipper v. South Carolina (1986) 476 U.S.1.ceceeeens 230, 325 Smith v. Illinois (1968) 390 U.S. 129.00.teneteee 75 Smith v. Phillips (1982) 455 U.S. 209.20.eee96, 101, 268, 270 South Carolina v. Gathers (1989) 490 ULS. 805...2...eens238 Speiser v. Randall (1958) 357 U.S. 513...ceeee ee ene eee ene 303 Stanford v. Kentucky (1989) 492 U.S. 361.0...tnt320 Stringer v. Black (1992) 503 U.S. 222...eceee eee eee 315 Sullivan v. Louisiana (1993) 508 U.S. 275...nes 158, 169, 170, 173, 174, 178, 180 Texas v. Cobb (2001) 532 US. 162... 0.000neces 152 Thompson v. Oklahoma (1988) 487 ULS. 815...cecnet eee eens 320 Townsend v. Sain (1963) 372 U.S. 293...eenent nee e ees 307 Turner v. Louisiana (1965) 379 U.S. 466. 00.0. cece cee cece cece eee c eee eeeeees 94, 96, 270 Ungarv. Sarafite (1964) 376 U.S. 575...cnetenn eee 225, 229 United States v. Agurs (1976) 427 US.97.0ectnee e eens 45 United States v. Allen (8th Cir. 2004) 357 F.3d 745. 06...eeeeens 147 United States v. Arroyave (9th Cir. 1972) 465 F.2d 962. 2...tenes 67 United States v. Bagley (1985) 473 U.S. 667... 2...eeeee 44, 45, 49, 51, 53, 54 United States v. Bogard (9th Cir. 1988) 846 F.2d 563. 20.ene224 United States v. Booker (2005) 543 U.S. 220...22.eee294, 297, 312 United States v. Brumel-Alvarez (9th Cir. 1993) 991 F.2d 1452. 2...eee46 United States v. Cheely (9th Cir. 1994) 36 F.3d 1439. 0...eee281, 282 li 1 eastmgrianeiettinaclsionanain mMola oNaNaLeE Ne aergesnnd SE je mms atarmn es fete United States v. Coppa (2d Cir. 2001) 267 F.3d 132....... 00...eeeene 47 United States v. Darby (9th Cir. 1988) 857 F.2d 623. 2...eeeeee 276 United States v. Dixon (1993) 509 U.S. 688. 0.00.eeeeee 152, 153 United States v. Flynt (9th Cir. 1985) 756 F.2d 1352. 2...eeeee 67, 229 United States v. Gallo (6th Cir. 1985) 763 F.2d 1504. 2...eeeeee 227 United States v. Hall (5th Cir. 1976) 525 F.2d 1254. 2...eee177 United States v. Higgins (7th Cir. 1996) 75 F.3d 332. 2...eeeees 45 United States v. Ingraldi (1st Cir. 1986) 793 F.2d 408... 20.0...0.eeeee 47 United States v. Kearns (9th Cir. 1993) 5 F.3d 1251. 2.2...eee46 United States v. Kellington (9th Cir. 2000) 217 F.3d 1084. 2...eeeeee 65 United States v. Lawrence (9th Cir. 1999) 189 F.3d 838. 2.20...eee67 United States v. McVeigh (10th Cir. 1999) 153 F.3d 1166. ... 2...eee242, 244 United States v. Muhammad (7th Cir. 1991) 928 F.2d 1461. 2...eee72 li i ' s € @ §€ 82 §£ €8 £ 8 8 € B 6 8 € 8 S R §€ S2 £ 8 2 €S BR F B E s OE . United States v. Nguyen (9th Cir. 2001) 262 F.3d 998. 22...eee226, 227 United States v. Pope (9th Cir. 1988) 841 F.2d 954. 00.eee227 United States v. Sager (9th Cir. 2000) 227 F.3d 1138. 2...ceene 65 United States v. Shabani (9th Cir. 1995) 48 F.3d 401. 2...eee74 United States v. Strifler (9th Cir. 1988) 851 F.2d 1197. 2...eee46 United States v. Vargas (9th Cir. 1991) 933 F.2d 701. 2...tenes 76 Victor v. Nebraska (1994) 511 US.1.eeeeens 108, 169 Vitek v. Jones (1980) 445 U.S. 480.20nee154 Walton v. Arizona (1990) 497 U.S. 639.00teeneee eee 293 Wardius v. Oregon (1973) 412 U.S. 470...etneee ne ee 48 Webb v. Texas (1972) 409 U.S.95.00eeeeee eee 225 Wiggins v. Smith (2003) 534 U.S. 510...eeeeee eee 47 Williams v. Calderon (9th Cir. 1995) 52 F.3d 1465. 2...eeeteens 163 lit Winters v. New York (1948) 333 U.S.S07.eeeeens 156 Woodson v. North Carolina (1976) 428 U.S. 280. 2...eeeee 202, 205, 269, 313 Zant v. Stephens (1982) 462 U.S. 862............... 193, 205, 209, 213, 217, 246, 269, 280, 313 OTHER CASES Cargle v. State (Okla.Crim.App. 1995) 909 P.2d 806............. 00... c ee eee eee 242, 243 Conoverv. State (Okla.Crim.App. 1997) 933 P.2d 904... 0.0.0.0...ee 242, 243 Johnson v. State (Nev. 2002) 59 P.3d 450... 0...eens 296, 302 New Jersey v. Muhammad (1996) 145 N.J. 23 [678 A.2d 164]...0.ceecent teens 242 People v. Hope (Tl. 1998) 702 N.E.2d 1282... 0.0...eee 242, 243 Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330.............. 0.200220 0- 242, 244, 245 State v. Bobo (Tenn. 1987) 727 S.W.2d 945...eete eee 311 State v. Fortin (N.J. 2004) 843 A.2d 974...0...eee 147, 148 State v. Hightower (N.J. 1996) 680 A.2d649...eeeeee 250 liv r e e e e e e e e e m e State v. Hill (S.C. 1998) 501 S.E.2d 122. 0...ene242, 243 State v. Koskovich (N.J. 2001) 776 A.2d 144... 0.0ceceenes 250 State v. Ring (Ariz. 2003) 65 P.3d 915.2.cnceee 301 State v. Whitfield (Mo. 2003) 107 S.W.3d 253... 0...eeeene 301 Turner v. State (Ga. 1997) 486 S.E.2d 839...nceee ene 250 Woldt v. People (Colo. 2003) 64 P.3d 256...0.ceeene 301 CONSTITUTIONAL PROVISIONS Cal. Const., art. , § 1.0...eene 33, 76, 108, 119, 127, 138 Cal. Const., art. I, § 7.. 33,55, 70, 74, 76, 77, 91, 107, 108, 119, 127, 138, 139, 147, 149, 159, 168, 170, 176, 180, 181, 201, 219, 225, 226, 232, 233, 247, 253, 271 Cal. Const., art. 1, § 12.0.0...neeeen e eet ennee 127 Cal. Const., art. I, § 15.... 33, 70, 74, 76, 77,91, 107, 108, 110, 119, 120, 127, 138, 139, 147, 149, 168, 170, 176, 180, 181, 201, 219, 225-227, 232, 233, 247, 253, 254 Cal. Const., art. I, § 16..... 33, 77, 103, 127, 147, 149, 154, 168, 170, 176, 180, 253, 269 Cal. Const., art. [, § 17... 33,55, 70, 76, 77, 108, 119, 127, 138, 147, 149, 159, 168, 170, 176, 180, 181, 201, 219, 225, 226, 232, 233, 247, 253, 271 Cal. Const., art. I, § 24..... 33, 55, 70, 74, 76, 77, 91, 120, 159, 180, 181, 201, 219, 225- 227, 232, 233, 247, 254, 271 Cal. Const., art. 1, § 29...000eeene eens 225, 254 lv Cal. Const., art. 1, § 30... 0...ceeens 43 U.S. Const., 5th Amend.. ... 33, 43, 55, 70, 73, 76, 91, 94, 107, 110, 111, 120, 127, 137, 139, 147, 149, 152, 159, 168, 170, 176, 180, 181, 201, 217, 219, 225, 226, 232, 233, 237, 247, 254, 287, 288, 303, 311, 312 U.S. Const., 6th Amend... 33, 55, 70, 72, 73, 76, 86, 91, 94, 95, 103, 111, 127, 146, 147, 149, 152, 154, 168, 170, 176, 180, 189, 201, 219, 225-227, 232, 233, 253, 254, 269, 270, 287, 288, 290, 293, 294, 296, 298, 301, 303, 304, 306, 309, 311, 312, 318, 319 U.S. Const., 8th Amend.. .. 33,55, 70, 73, 76, 91, 94, 107, 108, 111, 118, 119, 127, 137, 139, 147, 149, 154, 159, 167, 168, 170, 176, 180, 181, 193, 201, 202, 205, 208, 209, 212, 217, 219, 225, 226, 228, 231-233, 237, 245-247, 253, 254, 269, 271-273, 277, 280, 285, 287-290, 303, 304, 306, 309, 311-313, 315, 319, 320 U.S. Const., 14th Amend.. ... 33, 43,55, 70, 73, 76, 86, 91, 94, 103, 107, 108, 110, 111, 118, 119, 127, 137, 139, 146, 147, 149, 152, 154, 159, 168, 170, 176, 180, 181, 189, 192, 193, 201, 205, 208, 209, 212, 217, 219, 225-228, 232, 233, 237, 247, 253, 254, 269, 271-273, 277, 278, 280, 287, 288, 290, 293, 303, 304, 306, 308, 311-313, 315, 319 RULES OF COURT Cal. Rules of Court, rule 2.1050. ... 00.0cee57 Cal. Rules of Court, rule 4.42. 2.0.0.0cceects 318 Cal. Rules of Court, rule 8.200. .........0.0 000.0000. 0. eeee eee 323 Cal. Rules of Court, rule 8.630. .......0..0 0.00.0 00.00... ee eee ee eae 327 CALIFORNIA STATUTES Code Civ. Proc., § 237.0... 0.0.00 enneee tenes 255, 257 Evid. Code, § 210... 0.0.cceens 77, 83, 190, 192, 233 lvi Evid. Code, § 352.... 0.0.2.0... 00.0022 77, 81, 83, 84, 188, 192, 233, 242 Evid. Code, § 402......0.0.00 0000eenene e eee eee 78 Evid. Code, § 780...... 20... 0.ccceee ee eee eens 45, 82, 192 Evid. Code, § 801... 000...neeene 82 Evid. Code, § 1150.... 0.0... 0.0.0...cece eee eee enee 260 Evid. Code, § 1153.........00 00.eens97 Evid. Code, § 1200...........0... 00002tenet eee eens 77 Pen. Code, § 187. ...............0020-005- 1,2,5, 105, 106, 139-143, 145, 153, 157 Pen. Code, § 189. .............. 106, 120, 132, 135, 139-145, 153, 156, 157, 162, 163 Pen. Code, § 190. 20...ccceee eee eee 147, 157, 299, 300 Pen. Code, § 190.1... .......0 0000ttetenes 300 Pen. Code, § 190.2.... 2, 105, 110, 115, 120, 126, 130, 131, 281, 284-287, 290, 298, 300, Pen. Pen. Pen. Pen. Pen. Pen. Pen. 310 Code, § 190.3.... 3, 205-209, 228, 233, 236-238, 271, 273, 278, 288-290, 295, 296, 300, 301, 309, 311, 314 Code, § 190.4... 00.0 ccc cece cece cece cece eset eeeeeeeeey 5, 127, 131, 300 Code, § 190.5... 0... c ccc cece cece eee e cece bebe eevee eeeeenes 300 Code, § 21. occ ccc cece eet e nee e ene e ene eeeeeneeees 111, 112 Code, § 211. 0. occ cece cece cece cece eee eeeeeeeenees 2,5, 105, 111 Code, § 286. 0000c cece cece cece cent e cence eee tens eeenen 141 Code, § 288. 000.ncece cece nee e ene n tenes 141 lvii Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Code, § 2884. 2.0eeeene e eee eens 141 Code, § 289. 2...nente ene eee 141 Code, § 664. 2.2...eeenee 2,5, 105, 144 Code, § 686.20.nenteee e eee tenes 74 Code, § 1050. 2...encetees 224, 231 Code, § 1054. 2...neeeee eens 43,45 Code, § 1054.1... 0.0.0.0... 2cceeee 43, 44, 48, 51, 62 Code, § 1054.5... 0.0.0.0eenene 42, 60 Code, § 1054.10... 0.0...0.eeneee eens 43 Code, § 1089. 2...eeeeee ene e eens 93 Code, § LII8.1.. 0...cenen eee ee ee eee 4 Code, § 1158. 2...ceene eens 318 Code, § 11584. 2...cceee eee nee 318 Code, § 1163. 20...eeeeee eee 154 Code, § 1164. 20...eete eens 154 Code, § 1170. 2...eeneee eee e nena 308 Code, § 1181...eeeeee eee 260 Code, § 1181.6..... 0.0.00.eenene e eens 5 Code, § LI9DL.L..eeeene e en eee 242 Code, § 1192.4... 0.0.00.eeenee eee 97, 98 Iviii e e ee e e ee e e e e ee e e ee ee e e e e e e e e o e Pen. Code, § 1192.7..................eee ee eee ee ee eee ee ee nee 1,2 Pen. Code, § 1203.06........0 00020neces 1,2 Pen. Code, § 1239. 2...nente nee eens 1,5 Pen. Code, § 12022.5.. 0000oenee nee eee nna 1,2 JURY INSTRUCTIONS CALCRIM No. 306. ..... 2.0000...ccccee eee eect eens 58 CALJIC No. 2.01... 0.0.0...enetenet cnet e tenes 169 CALJIC No. 2.02.0... 0.0...enetenet e teens 169 CALJIC No. 2.09... 0...eeetenn eens 85, 88, 89 CALJIC No. 2.21.1. 000neeeee ees 172-174 CALJIC No. 2.21.2. 00.neteenies 172-174 CALJIC No. 2.22.0... ette nee tees 172-174 CALJIC No. 2.27.0...neetenet eee 172-174 CALJIC No. 2.28... 00.0eens 37, 42, 55-60, 64, 67, 68 CALJIC No. 2.90...0...eeeee 176, 177 CALJIC No. 3.02.......0. 0.00tnetne ene eens 132 CALSJIC No. 6.00.......0.0 00000teenene e teen en nees 105 CALJIC No. 8.20....... 0.000.eeeee eee 139, 149, 172, 173, 175 CALJIC No. 8.21.0... 0.0.0eee ee 105, 135, 139, 149, 159-161, 165 CALJIC No. 8.27... 0.000.eeeeee 132, 139, 149, 160, 161, 164 lix CALJIC NO. 8.80.1. 00.0 e cece cece cece cceceeceeeuteeceeteveuereeens 130, 135 CALJIC No. 8.81.17. 0.0.0. cece cece eee ceceeseeeeeeees ov ceevecseceevees 106 CALJIC No. 8.81.3. 000.00. ccc cece cece cece cceeeeceeestesseveeverecs 134, 135 CALJIC NO. 8.84.1. 0.00 ccc c cee c cece ceececeeceeceeseveuteeeeees 247, 251, 252 CALJIC No. 8.85.......0..0ee cece ee 205, 206, 208, 228, 251, 271, 275, 276, 314, 315 CALJIC No. 8.88.0... 00sec cee ese ceeeeeeeeees 214, 216, 217, 250, 288, 295, 300 CALJIC No. 9.40.0... cece cece c cece cece cece eteeeeceeueseeteceeeeeeeees 105 OTHER AUTHORITIES Amnesty International, "Death Sentences and Executions, 2009 - "AppendixI: Abolitionist and Retentionist Countries as of 31 December 2009" (publ. March 1, 2010) (found at www.amnesty.org). .... 2.2.20... eee eee 320 Ballot Pamp., Gen. Elec. (Nov. 7, 1978), arguments in favor of Prop. 7. ........... 286 Brief for The European Union as Amicus Curiae in McCarverv. North Carolina, O.T. 2001, No. 00-8727. 22...nentteens 321 Cal. Code Regs., tit. 15, § 2280 et seq.. 0...2eee308 International Covenant on Civil and Political Rights, art. VI, § 2.................. 321 Kent's Commentaries........ 0.0.0.0... eeenett teen eee 320 Kozinski and Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W. Res. L.Rev. 1 (1995)... 0... 0. eeee 321 Soering v. United Kingdom: Whether the Continued Use ofthe Death Penalty in the United States Contradicts International Thinking (1990) 16 Crim. & Civ. Confinement 339. ........... 0.0.02 cee eee ee 319 Ix 2 @ € @ E R B € R B F O R §F te a t S F e | e e e hl) cm Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role ofthe Jury in Capital Sentencing (2003) 54 Ala. L-Rev. 1091. 2.0...ne302 xi $ s € S 3 €£ €S B@ € 8 € S G B F S e £ 8 € w e e )| ee bh Uc ke th lU ce be lh lU cr et cl c act lhU reU lUc al hU rh lU m m r ah Um am ak hm ea ks ah Um e) a mal 88 STATEMENT OF APPEALABILITY This is an automatic appeal from a judgment of death. (Pen. Code, § 1239.)” The appeal is taken from a judgment whichfinally disposes of all issues between the parties and is automatically taken to this Honorable Court under Penal Code section 1239, subdivision (b). STATEMENT OF THE CASE A. Arrest through Preliminary Examination On August 24, 1997, Mr. Rangel wasarrested. (ICT 103.)” Mr. Rangel wasfirst arraigned on September 11, 1997. (ICT 123-124.) On April 23, 1998, a four-count complaint wasfiled in the Los Angeles County Municipal Court. (2CT 495-497.) On May5, 2008, after a two-day preliminary hearing, appellant was held to answer and an Information was filed charging appellant and Joseph Adam Mora with two counts of first degree murder and two counts of attempted second degree robbery of Andres Encinas and Antonio Urrutia on or about August 24, 1997 (Pen. Code, § 187). The complaint alleged that in the commission of the offenses he used a firearm (a handgun) (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1), 1192.7, subd. (c)(8)) and the special Hereafter, all statutory references are to the Penal Code unless otherwise indicated. Throughoutthis brief, the following abbreviations are used: "CT"refers to the Clerk's Transcript, “Supp CT” to the Supplemental Clerk’s Transcript and "RT"to the Reporter's Transcript of the trial proceedings, each preceded bythe appropriate volume number. -|- LeanneNAPEMFC RPaTCarmaot te me eT allegations that the murders were multiple and committed during the commission of the robberies. (§§ 211, 190.2(a)(3)(17); 2CT 499-504.) B. Information and Pretrial Motions A four-count information filed on May 5, 1998, in the Los Angeles County Superior Court charged Mr. Rangel with the following crimes: first degree murder of Andres Encinas and Antonio Urrutia (§ 187, subd. (a); counts one and two) and attempted second degree robbery of Andres Encinas and Antonio Urrutia (§§ 664/211), both offenses alleged to have been committed with a firearm (§§ 1203.06(a)(1); 12022.5, subd. (a)(1)), and both alleged as serious felonies within the meaning of Penal Codesection 1192.7, subdivision (c). Two special circumstances were alleged: multiple murder and that the murder was committed in the commission of a robbery (§§ 211, 190.2, subds. (a)(3)(17)). 2CT 501-504.) Mr. Rangel pleaded notguilty to all counts and denied the allegations. Mr. Rangel remained in custody. (2CT 547-548.) On July 9, 1998, the prosecution gave notice that if the special circumstances were proved true they would seek the death penalty. (3CT 565.) On that same date, Rangel filed a motion for informal discovery. (3CT 553-564.) On August 10, 1998, Rangel received somediscovery from the prosecution. (3CT 567.) On November23, 1998, the prosecution filed a motion in support of nondisclosure of prosecution witnesses addresses and phone numbers. After a hearing, this motion was granted. (3CT 768-782; 11/23/98 RT A42-A51.) Mid-trial, the defense made repeated motions for mistrial based uponlate police reports provided by the prosecution to the defense which included, among other things, several witness statements not previously disclosed. The motions were denied. (4CT 964-968, 999.) On November23, 1998, the prosecution filed a statement in aggravation pursuant to § 190.3 asserting that they intended to introduce the following evidence in the penalty phase: (1) On December4, 1995, Rangel was charged with burglary, vandalism and dissuading a witness, and the case wasresolved by Rangelpleading guilty to burglary; (2) on May 23, 1998, Rangel was accused of attempted murder while in the Los Angeles County Jail and put in 10-day segregation; (3) On February 6, 1996, Rangel was accused of “shot-calling” and threats while in the county jail and segregated for six days; and (4) victim impact evidence from six people: three members of Antonio Urrutias’ family and three members of Andreas Encinas’ family. (3CT 783-784.) Rangel filed a motion in opposition and a hearing was held on December8, 1998. (3CT 797-822, 866.) The motion was argued and deniedonthe first day of the penalty phase, February 8, 1999. (4CT 1045.) The court denied a motion to sever the defendants based on gun shot residue which was found only on Mora and not Rangel. (3CT 880; 2RT 82-91) The gun shot residue evidence was later excluded on Mora’s motion based uponlate disclosure by the prosecution. (4CT 878, 880.) ACenpANRERALRT ar ometes aap eh Ne Cc. The Guilt Phase of the Trial On January 12, 1999, a twelve-person jury and four alternates were sworn. (4CT 893) On that same day, the prosecution commencedthepresentation of its case-in-chief and presented 13 witnesses over the next 13 trial days. (4CT 894, 897, 901-902, 916, 964, 971, 975-976, 982, 986, 990, 995-996.) Thetrial court granted the prosecution’s motions to exclude evidence of a bullet from the face of victim Andres Encinas and evidence of the blood alcohol content of both victims. (4CT 990.) At the close of the prosecution’s case, the trial court denied Rangel’s motion for judgment of acquittal pursuant to § 1118.1. (4CT 996.) The defense called seven witnesses on February | and 2, 1999. (4CT 996, 999.) Rangel made a motion for mistrial based on repeated instances of untimely disclosure of material evidence which was argued and denied. (4CT 999; 13RT 1990-1998.) Over defense objection, the prosecution was allowed to re-open their case- in-chief and recalled Detective Branscomb. (4CT 1003.) Both sides gave closing arguments and the court instructed the jury on February 3 and 4, 1999. (4CT 1007.) The jury began deliberation on February 4, 1999, at 2:55 p.m. (4CT 1007.) On February 5, 1999, after about two-and-a-half hours of deliberation, the jury returnedits verdicts. (4CT 1010-1019, 1036-1037A.) It found Mr. Rangel guilty as charged and foundtrue the allegations of the special circumstances and the personal use of a firearm. (Ibid.) D. The Penalty Phase of the Trial The penalty phase commenced on February 8, 1999. (4CT 1045.) On February 17, 1999, the jury began deliberations on the penalty phase. (4CT 1087.) That same day,the jury requested and was granted read-back of the testimony of three prosecution witnesses. (4CT 1088.) On February 18, 1999, the jury returned its verdict fixing Rangel’s punishmentat death. (SCT 1221, 1224.) Thetrial court granted a defense request to disclose juror information as to jurors no. 3, 11 and 12 only. (45CT 11827.) Rangel’s motions for a new trial and for modification of sentence (§§ 1181.6, 190.4, subd. (e)) were filed March 8, 1999 and heard and deniedby the court on May 27, 1999. (4CT 11770-11801; 45 CT 11906; 21A RT 3315-3379.) The court imposed the death sentence on counts one and two (§ 187, subd.,(a)) and remanded Mr. Rangel to the custody of the warden at San Quentin. (45CT 11896A- 11913, 11923.) Rangel was also sentenced to twelve years to be served concurrently on counts three and four (§ 664/211). (45CT 11914-11915, 11923.) This appeal is automatic, arising from a final judgment of death. (Pen. Code, § 1239, subd.(b).) /// /// /// STATEMENT OF FACTS A. Guilt Phase 1. The Prosecution’s Case a. The Deaths of Encinas Encinas and Anthony Urrutia On August 24, 1997, early in the morning, Paula Beltran and her friends Yesenia and Mayra,left a club. (3 RT 398.) Paula was driving, Mayra wasin the front passenger seat, and Yesenia wasin the back seat. (7 RT 1307.) They wereon their way to meet Paula’s boyfriend, Andy Encinas, when Paula’s car gota flat tire. (3 RT 398.) Paula paged Encinas, who telephoned her. (3 RT 399.) She told him AAA was comingto fix the tire, but he insisted on coming to meet her. (3 RT 399.) Encinas had left a party in Wilmington, and his friends Anthony Urrutia and Fidel Gregorio were with him; Anthony wassitting in the front passengerseat, and Fidel wassitting in the backseat on the passengerside. (3 RT 399, 4 RT 505, 623.) AAA fixed Paula’s tire, and Encinas decided to follow Paula to makesure she arrived homesafely. (3 RT 400.) Yesenia wanted to be taken homefirst, so Encinas followed Paula to Yesenia’s house. (3 RT 401-402. They arrived about 3:00 a.m. (3 RT 429.) Encinas parked his vehicle in front of Paula’s car on the street at 1023 South Castlegate. (4 RT 476.) Encinas neededto use the restroom, so Paula, Yesenia, Mayra, and Encinasgot out of their cars and went inside Yesenia’s house. (3 RT 402.) Everyone then left the house and started to walk back to their cars, with Yesenia stopping about halfway. (3 RT 403.) The others saw two individuals walking toward their cars from behind. (3 RT 404, 433.) Gregorio hadfallen asleep in the backseat of Encinas’ vehicle, but woke up and saw Encinas, Paula, and Mayra walking out of Yesenia’s driveway. (4 RT 623.) He also saw two individuals on the sidewalk, about three or four feet away. (4 RT 623, 5 RT 660.) Street lights were lit and it was clear enough to see faces. (5 RT 714.) The two individuals passedthe other three, about three or four feet from Mayra. (7 RT 1309.) Oneindividual asked Encinas, “Do you wantto go to sleep?” (3 RT 406.) Encinasdid not respond, but told Paula to go to her car. (3 RT 406.) Paula told Encinas to go to his. (3 RT 406.) The individual then said, “Whyare you quiet, I asked you a question?” (3 RT 406.) Paula and Mayra openedtheir car doors and Encinas walked to his vehicle. (3 RT 406.) After Paula was in her car and Encinas wasgetting into his, the same person who had spoken to Encinas walked in front of Paula’s car and followed Encinasto the driver’s side of his vehicle while the other person went to the passenger side where Urrutia wassitting. (3 RT 407, 438, 491.) Encinas gotin the car and said, “Let’s get out of here,” in Spanish. (5 RT 699.) The first individual pointed a gun at Encinas,and the other pointed a gun at Urrutia. (3 RT 407.) The person on the driver’s side said, “Check yourself, check yourself, give me your wallet.” (5 RT 699.) The person on the passenger’s side told Urrutia to give him his wallet. (5 RT 699.) The two were each about 6 feet from Encinas and Urrutia, the gun about 12-15 inches from Encinas’s head. (4 RT 554, 604.) The gunthat the person on the driver’s side had was black, between 8 and 10 inches, and might have been an automatic with a clip (5 RT 638.) Paula described the guns as “square” and thought they were either .45 or 9 mm automatics. (4 RT 509.) Mayrareclined herseat into a prone position and screamed andcriedat Paula to leave. (5 RT 1315.) Paula backed her car up, making a U-turn andleft to find a phoneto call 911 since she could notfind her cell phone. (3 RT 407, 4 RT 554, 8 RT 1318.) She did not hear any shots fired. (4 RT 604.) Encinas reachedforhis wallet, but Urrutia did not. (5 RT 699.) It was about 3-4 seconds between the first shot (at Encinas) and the second shot(at Urrutia). (5 RT 710.) It was another three seconds from the second shotto the third and fourth. (S RT 710.) b. The Initial Investigation: Witnesses to the Crime. 1. Paula Beltran The police came to the phone booth from which Paula madethe 911 call, and an initial report was made. (8 RT 1318.) Paula described the person who spoketo Encinas as having short hair, and wearing light-colored pants and a dark short-sleeve shirt. (3 RT 410.) The shirt sleeve fell about 3 inches above his wrist, and thinks the shirt had a collar but was not tucked in. (3 RT 462.) Paula described the other person as also having short hair, wearing light-colored pants and no shirt. (3 RT 410.) Paula did not have any trouble identifying them in the lineup, but noted that their body weight had changed between then andthetimeoftrial. (4 RT 581.) s e € S B € 3 B € O B £ € R F R E R B F B F S W U e U e il. Fidel Gregorio Fidel had arrived at a party about 7:00 p.m.the night of the incident, and drank 4-5 beers before 11:00 p.m. when he stopped drinking. (5 RT 686.) He left the party with Encinas and Urrutia at 2:45 a.m. (5 RT 686.) He was awakein the vehicle until after Paula’s tire was fixed, whenhefell asleep on the way to Yesentia’s house. (5 RT 690.) He did not wake up until Encinas was already at the house and Encinashadleft the car. (5S RT 690.) He saw two individuals on the sidewalk about three or four feet away. (SRT 660.) Fidel’s window wasrolled up and he did not hear any conversation. (5 RT 699.) He closed his eyes again after looking around, and did not open them until Encinasgot back in the car saying, “Let’s get the hell out of here,” in Spanish. (5 RT 699.) Fidel described the suspects as two Latin guys, one of whom looked young. (4 RT 639.) The two perpetrators were each about 6 feet from Encinas and Urrutia, the gun about 12-15 inches from Encinas’s head. (4 RT 554, 604.) The person on the driver’s side had a mustache and was wearing a blue outfit, like dark blue nylon jogging pants, and a blue shirt with a red stripe. (4 RT 639, 5 RT 673, 699.) That person said, “Check yourself, check yourself, give me your wallet.” (SRT 699.) Fidel saw the face of the person on the passenger side and then saw the gun. (5 RT 763.) The person on the passenger’s side told Urrutia to give him his wallet. (SRT 699.) Encinasreachedfor his wallet, but Urrutia did not. (S RT 699.) It was about 3-4 seconds between the first shot (at Encinas) and the second shot (at Urrutia). (5 RT 710.) It was another three seconds from the second shot to the third and fourth. (5 RT 710.) The gun that the person on the driver’s side had wasblack, between 8 and 10 inches, and might have been an automatic with a clip (5 RT 638.) The person on the passengerside was not wearing a shirt, but was wearing baggie pants, Joe Boxer shorts and hada tattoo on his belly. (4 RT 639.) During the line-up, the person who had not been wearing a shirt at the time of the shooting was now wearing a shirt, and Fidel asked that he raise his shirt so he could identify the tattoo he had seen, which he was able to do. (5 RT 651.) The person was also wearing the same Joe Boxer shorts. (5 RT 651.) ill. Sheila Creswell Sheila Creswell could not sleep early in the morning of August 24, 1997, because of a loud party across the street. (5 RT 787.) She heard three shots sometime between 3:00 and 4:00 a.m., and getting out of bed and looking out her window, she saw two men that she had previously seen on different occasions (later identified as Rangel and Morw) run into the south door of the houseacrossthe street from a burgundy truck. (5 RT 772, 775, 780, 787, 810.) She kept looking out the window and recognized Rangelas being at the party, though she did not recall seeing Mora. (5 RT 787.) She could only describe one of them as Mexican-American with a shaved head. (5 RT 775.) She never saw the full face of either man,only the right sides of their faces for about two seconds. (5 RT 778.) -10- F S € m £€ RB F S B F B e e w e s € B @ € S B t e e e S Iv. Ramon Valadez Ramon Valadez arrived alone at the home of Lourdes Lopez around dusk to exchange a refrigerator. (6 RT 841.) He ended up staying, drinking beer and snorting methamphetamineat the apartment. (6 RT 883.) Ramontestified that two men arrived together a couple of hours after he did, at about 11:00 p.m. (6 RT 844, 877.) A dark Oldsmobile parked in the driveway and Rangel and Mora cameinside,but he could not say that both people arrived in the car. (6 RT 844.) At some point, while Valadez wasin the kitchen or living room,he heard a “bunch” of shots and Rangel and Mora came running inside. (6 RT 849, 883.) Valadez originally testified that he was in the kitchen when the two cameinside, but later admitted he wasin the living room. (6 RT 849, 6 RT 883, 993. ). Valadez stated that the two came inside with firearms, Mora with a black machine gun and Rangel with a silver/chrome gun with a bullet stuck in it, which he knew because he heard someone mentionit. (6 RT 849, 873, 975.) He does not know whichperson saidit, but he heard, “I’d have shot them more, but the damnbullet got stuck.” ((6 RT 975.) Valadez testified that they were “bragging,” saying that they “fucking blew their headsoff.” (6 RT 849.) Rangel was wearing a black shirt and Mora was not wearing one. (6 RT 858.) Rangel took his shirt off and wiped his whole torso and hands with it. (6 RT 858.) At some point around this time, the cars were moved to allow the Oldsmobile into the garage. (6 RT 855, 6 RT 896.) Rangel and Moraleft the apartment with the guns through the kitchen door, but did not -11- >eetrratipampabommyaornSadieSe Na nageceoy ROR GRRL ABA Bien e have the guns whentheyreturned. (6 RT 975.) About dawn, the Compton police began shining flashlights in the windowsofthe apartment and Valadezlet them in throughthe living room door. (6 RT 862.) The police took everyone who wasin the apartment outside and interviewed them. (6 RT 862.) V. Lourdes Lopez Lourdestestified at trial that Mora was the father of Lourdes Lopez’ three-year old daughter. (6RT 1003-1004; 8RT 1261; CT 32.) Lourdes and her daughterwereliving at the Castlegate house with Jade Gallegos and a roommate named Nancy. (6RT 1003-1004; 7TRT 1168; 8RT 1283-1284.) Earlier in the evening on the night of the shooting, Lourdes, her daughter, Jade and three other friends attended a child’s birthday party. (6RT 1003; 7RT 1177; 8RT 1261; 1CT 11-14.) At the party they were threatened by several gang membersand, as a they were leaving, one of the gang membersassaulted Gallegos. (7RT 1176-1177, 1231; 8RT 1261, 1280-1281; 1CT 13-14.) Lourdes was concernedthat these same gang members knew whereshe and Gallegos lived and would cometo their house to continue the confrontation, so she paged Mora to come to her house. Mora arrived with appellant around midnight. (6 RT 1005- 1010; 7RT 1177; 1CT 14-16, 32.) Lourdes hadleft the apartment around 11:00 p.m., but later returned, about midnight. (6 RT 1008, 1075.) When she arrived, she saw appellant sitting in her kitchen with a gun, but cannot describe it because it was in his waistband and she only glancedat it. (6 RT 1075.) At the time, Mora wasdrinking and getting high. -12- e s £ 3 € B € B B e e S B | e e e e e Ue e l e t l e ) 8 (6 RT 1075.) Lourdesherself had 2 or 3 one-inch lines of methamphetamine, as well as 4 or 5 twelve-ounce cans of beer. (7 RT 1286.) Lourdes did not see Mora and Rangel leave the house. (6 RT 1008.) She heard twoor three gunshots while she wasin the bathroom,and saw appellant and Morastanding in the kitchen door. (6 RT 1016.) She did not see anyoneruninto the apartment with guns. (6 RT 1075.) She did hear cars being moved,after which someone turned the lights and music off. (6 RT 1081, 1087.) Appellant had been wearing a dark-colored, button-downdress shirt, which she noticed had been removed whenthe police arrived at 5:00 a.m. (6 RT 1105, 1165.) After the shooting, Lourdes gave a taped statementto the police.*’7 However,at trial she testified that much of what she told police during the tapes was nottrue but that she felt intimidated by the police to tell them what they wanted to hear because they threatened to call social services and have her daughter taken away. (7RT 1137-1146, 1158-1159 1183, 1219-1220; 8RT 1238-1239, 1291-1293.) The tapes revealed that Lourdestold the police that she saw Mora and Rangelexit her houseto have a conversation, and a few minutes later, she heard gunshots and saw them run back into the house. (1CT 3-7, 18-22.) Lourdes told police she saw Mora with a gun and thought the gang membersfrom the party had comeby andthateither they had shot at Mora or Mora had shot at them. (1CT 21-24.) Lourdesalso told police that Mora ran into the kitchen 3 Audio tapes of Lourdes’ interviews with police were played for the jury at trial. (8RT 1261; 1CT 1-34; Peo. Exhs. 16 & 17.) -13- and grabbedhercar keys, then told her to go into the bedroom andstay with their daughter because he did not want his daughter to wake up see him goto jail. (ICT 4, 21, 28-31.) Lourdes then told police that Mora moved his car into the garage and parked her car behindit. (ICT 4.) vi. Mayra Fonseca After makingan initial report at the phone booth, Mayra was taken downto the police station and made a statement. (8 RT 1320.) She was then taken back to Castlegate wherepotential suspects were shownto her one at a time. (8 RT 1320.) She identified appellant and Mora asthe perpetrators. (8 RT 1321.) WhenMayrafirst saw the two men,they were facing her and she was close enough to see their facial features. (9 RT 1384.) One person had a mustache and was wearing gray pants with no shirt. (9 RT 1384.) The other person had on brownpants, a white shirt, and another shirt on top. (9 RT 1386.) Appellant was the person that ran between Paula’s and Encinas’s cars with a “chromed”gun, to Encinas’s side of the car. (8 RT 1323, 1325, 9 RT 1390.) Mayra did not hear any gunshots. (9 RT 1422.) vii. John Youngblood John was watching television in his bedroom early on the morning on August 24, 1997, when two gunshotsattracted his attention and he looked out an east-facing window for about 5-10 seconds. (10 RT 1626, 1643.) There were two people standing outside of a Toyota 4-Runner, one facing the passenger door with his back to John, and the other -|4- e e e e ee e e e e e e facing northwest. (10 RT 1626.) He then wentto his front door and heard four more gunshots when he wasat his front door. (10 RT 1629, 1646, 1648.) John did not have trouble seeing, but did not see anyonefire shots. (10 RT 1629, 1648.) John identified appellant as the person on the driver’s side of the vehicle, and who then walked by John’s front door, about 15-20 feet from John. (10 RT 1631, 1676.) John wentoutside to the 4- Runner to calm downa hysterical person outside the vehicle, and then lookedinside at two Hispanics who did not seem to be alive. (10 RT 1634.) Cc. Initial Investigation: Law Enforcement 1. Officer Raymond Brownand Officer Lepe At 3:35 a.m. on August 24, 1997, Officer Brown and Officer Lepe respondedto a call at 1023 South Castlegate. (9RT 1429.) Uponarrival, they saw a 4-Runner with two subjects sitting in the front seat. (QRT 1429.) The subjects were non-responsive to verbal inquiries by the officers, and upon closer inspection once could see that one person had been shot in the face and the other shot in “chest area, or the head area.” (9RT 1429.) He saw bullet casings aroundthe driver’s side of the vehicle, and there might have been one or two on the passengerside as well. (9RT 1429, 1478.) Officer Brown saw wallets in the vehicle and looked in them to identify who was in the vehicle. (9RT 1432.) The officers cordoned off the scene and radioed for paramedics and marked what they could as evidence. (9RT 1433.) The lighting in the area was “very, very bright.” (9RT 1433.) Detectives and officers went door-to-door asking if people knew anything -15- about what had happened. (9RT 1434.) Officers Lepe and Strong gained entry to the house at 1005 South Castlegate and brought potential suspects out. (ORT 1434.) They also went into the garage of the home and saw two weaponsonthe floorboard of the passengerside of a burgundy Oldsmobile, which weapons were photographed and collected as evidence. (9RT 1436.) Officer Lepe noted on a bookingslip that Jade Gallegos, one of the people detained at Lourdes’s residence, was 5'8", wearing a blue shirt and shorts at about 12:45 p.m. on August 24, 1997. (12RT 1945.) He was the officer that searched Gallegosat the time of booking and sawthere wasa tattoo on his stomach,but he does not remember whatit looked like. (12RT 1947.) il. Detective Marvin Branscomb Detective Branscomb wastheoriginal investigating officer in this case, and was called to 1023 South Castlegate on August 24, 1997, where he arrived after 5:55 a.m. (LORT 1521, 1556.) Det. Branscomb placed numbers on the evidence already marked and took pictures of the evidence, including casings, a ring, wallets, and bullet holes, finally collecting the evidence which helater booked into Property. (ORT 1523, 1525.) He also went to 1005 South Castlegate and photographed and collected several items of evidence, including a Tec-9 semi-automatic pistol and a 9mm semi-automatic pistol, from the detached garage. (ORT 1539.) The guns weresecured in a gun box for transport to the crimelab to be fingerprinted and for ballistics tests. (LORT 1543.) He returned later in -16- the day to 1005 South Castlegate and recovered a black shirt. (ORT 1552.) ii. Officer Strong On August 24, 1997, Officers Strong and Slutske responded to 1023 South Castlegate, where Officers Brown and Lepe were already. (11RT 1756, 1758.) Officer Strong had received a physical description of the perpetrators over the radio while he was en route to the scene. (11RT 1761.) He did door-to-door investigations and went to 1005 South Castlegate, where Lourdes answeredthe door. (11RT 1760-1762.) Everyone at the residence was taken outside. (11RT 1769.) Lourdes gave consent to search her home, and a search was conducted. (11RT 1770.) No weapons were found in the residence, but a gun case fora 9mm weapon was. (11RT 1770.) Lourdes also gave consent for the garage to be searched, and officers found a handgun and an Intratec 9mm in an Oldsmobile parked in the garage. (11RT 1775.) Lourdes said that Mora ownedthecar. (11RT 1775.) Officer Strong had noted Budweiser cans inside the residence at 1005 South Castlegate, as well as a Budweiser can underneath the driver’s side of the victim’s vehicle, though he did not recover any of the cans from the residence (11RT 1778, 1779.) iv. Officer Gonzalo Cetina and Officer Timothy Dobbin Officer Cetina is an officer for the City of Compton and received a call about 3:15 a.m. on August 24, 1997, to respond to two possible gunshotvictims in the area of Castlegate. (12RT 1897.) He responded to Alondra and White and made contact with -17- Paula and Mayra, taking them to the Compton Police Station, where he interviewed Paula. (12RT 1899, 1901, 1903.) His report states that Paula described one perpetrator as a male Latin, approximately 5'8", 165 pounds, approximately 20 years old, with a shaved head, medium complection, no shirt, and gray pants. (12RT 1903.) The second perpetrator wasalso described as a male Latin, approximately same height and weight, shaved head, medium complexion,light brown clothing. (12RT 1903.) The interview was not tape-recorded. (12RT 1904.) Officer Cetina then took Paula back to South Castlegate to attempt to identify the perpetrators and remainedin the vehicle with her while she was viewing the subjects. (12RT 1904.) She positively identified two people, whoit was later learned were appellant and Mora. (12RT 1912.) Officer Dobbin responded with Officer Cetina, and does not recall having a description of the perpetrators before meeting with Paula and Mayra. (13RT 2010.) Dobbin interviewed Paula at the Compton Police Department. (13RT 2012.) Dobbin then transported Mayra back to South Castlegate for the identification. (13RT 2014.) Mayraidentified the person later learned to be Mora. (13RT 2017.) She also made another “uncertain” identification, which Officer Dobbin did not include as he wanted only “positive” identifications. (13RT 2026.) V. Officer Ed’ourd Peters Officer Peters arrived at the scene about 3:33 a.m. on August 24, 1997, and interviewed Fidel Gregorio about 4:55 a.m., then took him downto a field show-up. -18- 3 £ 8 £ 2 £ 8 € B € e F e e w | e Ue 8 (12RT 1959.) Fidel identified the person later learned to be Moraas the person who shot Urrutia. (12RT 1979.) d. The Forensic Investigation Dale Higashi, as a senior criminalist with the Los Angeles County Sheriff's Department, analyzed two firearms connected with this case, an Intratec semi-automatic pistol and an Astra semi-automatic pistol. (12RT 1825, 1827, 1830.) Both gunswill eject casings to the right and rear of the shooter. (12RT 1829, 1830.) On the Astra, there was a round of ammunition not properly inserted in the chamber, which causedthe gun to jam and the trigger to be deactivated. (12RT 1831.) He examined casingstaken into evidence - three were fired from the Astra and one wasfired from the Intratec. (12RT 1832.) The bullet that killed Encinas came from the Astra, and the bullet that killed Urrutia came from the Intratec. (12RT 1835.) e. The Autopsies Dr. Riley performed an autopsy on Encinas on August 28, 1997. (1IRT 1716.) At the autopsy, Dr. Riley observed a gunshot entry wound to the shoulder ofthe left arm, which went through the skin andsoft tissue of that arm, re-entering the body ontheleft side of the chest. (1IRT 1718.) The bullet went through a rib on the left side as well as the left lung, then penetrated the aorta before coming to rest inside the body ontheleft side of the chest. (1IRT 1718.) The bullet was recovered. (11RT 1718.) The bullet could cause death because it went through the left lung, causing bleeding, and caused a -19- defect in the aorta, so there was an accumulation of blood inside the chest cavity. (11RT 1724.) Dr. Riley also performed the autopsy on Urrutia on August 28, 1997. (1IRT 1724.) Urrutia died as the result of a gunshot woundto the right side of his face at the nostril, the bullet going through his mouth and throat, perforating a large blood vessel on the left side of the neck, which caused him to bleed to death. (11RT 1724, 1727.) The bullet was recovered from the back ofthe left side of the neck. (11RT 1730.) There was evidence that Urrutia aspirated a considerable amount of blood. (11RT 1730.) There was also a gunshot graze woundonthe right forearm near the level of the wrist, which may or may not have come from the same bullet. (11RT 1727.) The range from whicheither Encinas or Urrutia was shot could not be determined due to no deposit, soot, or stippling of the wounds.(11RT 1736, 1740.) 2. The Defense Case as to Appellant a. Michelle Lepisto Michelle Lepisto, senior criminalist with the Los Angeles County Sheriff’s Crime Lab,testified regarding the presence of gunshotresidue as to appellant only. (13RT 2039.) According to the samples obtained from appellant, his hands contained no particles of gunshot residue associated with the casings foundat the crime scene and therefore no conclusion could be drawnbasedonthe results of the analysis as to whether appellant fired one of the weapons involvedin the crime. (13RT 2051.) However,just -20- § s @€ 8@ € 8 € © 8 € 8 £ 2 8 3 £ @ £ 8 2 ©€ 3B @ € B F B F S F S because no residue was found does not meanthat appellant did not fire the weapon,as gunshotresidueparticles will dissipate or can otherwise be lost. (I13RT 2052.) b. Officer Slutske Officer Slutske responded with his training officer, Officer Strong, and conducted door-to-door interviews. (13RT 2075.) He interviewed John Youngblood, who lived at 1019 South Castlegate, and doesnot recall that Youngblood told him he could identify the perpetrators, otherwise it would have been included in his report. (13RT 2078.) c. Officer Ronald Thrash Officer Thrash responded to the scene at 5:55 a.m and wasinvolved in witness interviews. (13RT 2088.) He went back to the station and made contact with appellant after 7:30 a.m., collecting gunshot residue from appellant a few minutes before 9:37 a.m. (13RT 2088, 2101). He does not recall that appellant’s hands were bagged to protect them from contamination or wiping them off, and it would have been his duty to remove the bags. (13RT 2104, 2106.) B. Penalty Phase 1. Summary The penalty phase consisted of separate aggravation evidence against appellant and Co-Defendant Mora, victim impact testimony from the victims’ friends and families, and mitigation evidence as to appellant and Mora. // -2{- 2. The Prosecution’s Penalty Phase Evidence a. Aggravation Evidence Relating to Appellant In 1995, appellant and another individual broke the window of Alejo Esquer Corral’s truck when it was parked in front of Corral’s house and removeda stereo and speakers. (16RT 2512.) A “13" and a “T-like thing” were spray-painted on the truck’s bra. (16RT 2512.) When the ownerof the vehicle confronted appellant and the other person, detaining them until the police arrived, appellant threatened him, stating “We know where youlive” and that the owner was going to be killed. (16RT 2517, 2519.) Corral was frightened by the threat, and movedbefore the time he knew appellant would get out ofjail. (16RT 2519, 2551.) Kevin Hilgendorf is a Deputy Sheriff for Los Angeles County, and was working as such when herespondedto a radio call concerning a stolen vehicle. (L6RT 2554.) When he arrived at the scene, he saw appellant standing on the sidewalk with other people. (16RT 2554.) The truck had a broken window,two of the speakers had been removed and were on the dashboard, and “KCC”wasspray-painted on the bra. (16RT 2557.) Deputy Hilgendorf has since learned that “KCC” stands for King City Criminals. (16RT 2583.) He doesnot recall seeing a “13" or other symbol. (16RT 2559.) A can of spray paint was on the sidewalk and appellant had white spray paint on his hands, the same color of the paint on the bra. (16RT 2559.) Appellant was arrested for burglary to a motorvehicle, terrorist threats, and -22- = vandalism. (16RT 2566.) Regarding the terrorist threats, Corrall told Deputy Hilgendorf that appellant and the other person had threatenedthat if the police were called, they would kill him because they knew werehe lived. (16RT 2566.) Deputy Hilgendorf said he took the threat seriously because he knew both people were gang membersandfelt it was a credible threat. (L6RT 2569.) Officer Andrew Zembalis an expert on gang graffiti and gangs, and checked appellant for tattoos. (2ORT 3076, 3088.) Hetestified that appellant has several tattoos, the composition and location of such which signifies a wanton disregard or disrespect for life and indicates that appellant is a hard-core gang member, highly into gang culture. (20RT 3088-3096, 3098.) b. Agegravation Evidence Relating to Co-Defendant Mora Paul Juhn wasin custodyat the Los Angeles County Jail on July 29, 1996, when he wasattacked and beaten up by four or five men. (18RT 2675.) His injuries indicated that he wasstruck onceontheleft side of his face with a closed fist, and struck about 30 times by hands and feet over the rest of his head and body. (18RT 2727.) That day, he identified one of the attackers in a line-up, which person waslater identified as Joseph Mora. (18RT 2680, 2703.) He does not recognize Morain the courtroom as oneof the people whoattacked him. (18RT 2689.) Deputy Kresimir Kovac wastheofficerat the jail who identified Mora by his wristband at the time. (18RT 2719.) He also confirmed that Co-Defendant Morais the sameperson byidentification of a tattoo on Mora’s neck. -23- (18RT 2726.) Cc. Victim Impact Evidence as to Appellant and Co-Defendant Mora Olivia Perez is Urrutia’s sister. (16RT 2591.) Perez explained the significance of several pictures of Urrutia shown to the jury — pictures of Urrutia as a child, with his family, first communion, high school graduation, at work. (L6RT 2591-2593.) Perez told the jury that Urrutia had joined the Explorer Scouts with the police department. (16RT 2597.) He then started playing football, which he played with Encinas. (16RT 2597.) Urrutia was involved in a neighborhood committee to clean up the area and help people fix their homes. (16RT 2597.) He also volunteered as an interpreter for St. Mary’s, helping Hispanic people who could not understand their doctors. (16RT 2597.) Perez stated that Urrutia’s dream was to become a police officer. (16RT 2598.) He went to Long Beach College after high school, and passedthe test for Long Beach City but wasnot old enough to be hired on at the time. (16RT 2598). He then went to workas a loan representative. (16RT 2598.) He passedthe test for the Los Angeles Police Department four monthsbefore his death. (16RT 2599.) Long Beach City put up a mural for him when he died. (16RT 2599.) Javier Soto is Urrutia’s nephew,andtestified that he and Urrutia grew up as brothers because Urrutia was only two years older than Soto. (17RT 2609.) They grew up about five blocks from each other and wentto school and played sports together. Soto wasalso part of the friendship between Encinas and Urrutia, whose group of friends was -24- “unbelievable,” and everyone looked out for each other. (17RT 2612.) Soto misses Urrutia every day. (17RT 2613.) Virginia Urrutia, Urrutia’s mother, stated that she had been very close to her son, and they would pray together every night and go to church every Sunday. (17RT 2619.) Urrutia was living with herat the time of his death. (17RT 2620.) On the night of his death, she waited up for him. (17RT 2620.) She will miss everything about him. (17RT 2622.) Luz Gamez, Encinas’ sister, explained the photographs shownto the jury as different aspects of Encinas’s life, including his baptism, high school graduation, and family. (17RT 2630.) Gamez told the jury that Encinas was loving, well-mannered, and respectful. (17RT 2635.) He played sports in high school, and the whole family would go to watch. (17RT 2635.) Encinas watched Gamez’s children on Saturdays so that she could work,and let her son Edgar live with Encinas when Gamez got married. (17RT 2636.) When Gamez’s mothercalled to tell her that Encinas had been shot, Gamez called her brother and they went to the hospital. (17RT 2639.) Bythe time they gotto the hospital, Encinas was dead. Encinasandhis father had been very close, and his father has taken his death hard andis not well. (17RT 2639.) Encinas’s father does not know about the trial because they do not know whatkind of reaction he would haveandhis health has deteriorated a lot since Encinas’s death. (17RT 2641.) Encinas also wanted to be a -25- policeman, and had passed the admissionstest to the Los Angeles AcademyofPolice two monthsbefore his death.(17RT 2642.) Sergio Encinas is Encinas’s brother, and is nine years older than Encinas. (17RT 2644.) Encinas was a 300-pound teddybear and a counselorto his friends. (17RT 2644.) He wasinvolvedin football and baseball. (17RT 2648.) Sergio was the person who had to identify Encinas’s body andtell the family he was dead. (17RT 2648.) It ruined him physically and mentally. (17RT 2648.) He gotsick, got ulcers and headaches. (17RT 2651.) He does not think that Encinas’s father could control himself in court. (17RT 2651.) Paula Beltran was Encinas’s girlfriend. (17RT 2658.) They knew they were getting married, but were not formally engaged. (17RT 2658.) They wanted a family — children were important to Encinas. (17RT 2658.) Beltran feels a lot of guilt about Encinas’s death because he would not have beenthere if she had not paged him. (17RT 2658.) She has not been able to forgive herself. (17RT 2661.) She has nightmares. (17RT 2662.) 3. The Case for Life a. Mitigating Evidence as to Appellant Linda Rangel is appellant’s mother. (18RT 2775.) Linda was not married to appellant’s father, Ruben, at the time of his birth, but they had knowneachother since they were in eleventh grade, and had lived together for about four years by the time -26- im ww ae “a m7 appellant was born. (18RT 2775.) Linda and Rubenalso had another child, Carmen, who is about three years older than appellant (19RT 2775.) Linda and Ruben moveda lot, usually returning to live at Ruben’s parents’ home. (18RT 2775-.) Beginning in 1975, Lindastarted consuming alcohol on the weekends, but wasable to take care of appellant. (18RT 2784.) Linda started using heroin in 1980 or 1981, while she and Ruben werestill together. (18RT 2786.) Ruben hadstarted using heroin about twoyears before that, and started using cocaine aboutfive years later. (18RT 2863.) Linda had a sister who used heroin and found out Ruben wasalso using heroin. (18RT 2786.) She would visit her sisters and use heroin with them, even if she had the children with her. (18RT 2793). Linda and Ruben would use heroin together, locked in the bathroom for hoursat a time, while appellant and his sister were in the house. (18RT 2790.) This happened every day at different times for about two years. (19RT 2936.) Carmen and appellant noticed things in the bathroom suchas a spoon with a burned bottom and a bottle cap, but did not know whatit meant until they were older. (19RT 2934, 2936.) Carmen never saw drugs around the house. (19RT 2940.) When appellant was nine years old, appellant walked in on them once while they were using heroin. (18RT 2790.) Between Linda and Ruben, they were using about $60 worth of heroin a day, with Linda using about a quarter of what Ruben used. (18RT 2863.) Ruben neglected the needs of his children to buy drugs. (18RT 2875.) Linda and Ruben did not always provide food for the children, and Carmen would haveto fix food for her and appellant. -27- (19RT 2938.) In 1982, Ruben received a settlement of $20,000, of which $15,000 went to drugs. (18RT 2882.) Appellant got a bicycle. (18RT 2882.) Linda and Rubenseparated shortly after 1983 and divorced in 1992. (18RT 2793, 2863.) Carmen wasabout 10 years old, and appellant was about 8 years old at the time of separation. (19RT 2931.) Carmen went with her mother for a time and appellant stayed with his father. (19RT 2940.) Ruben would hit Linda andcall her namesin front of the children, usually when he was underthe influence of alcohol or drugs. (18RT 2793.) Ruben remembersalso hitting appellant on the behind or the head, with his handorbelt. (18RT 2871.) Linda eventually left both children with Ruben,and alternated staying with her father and her sister. (18RT 2797.) At one point, she was living on thestreet, prostituting herself to support her heroin habit. (18RT 2797.) She tried to see the children on the weekends and would be underthe influence of heroin when she did so. (18RT 2797.) She eventually got into rehab and stopped using heroin in 1988. (18RT 2796, 2797.) Both children started living with her again in 1989. (19RT 2942.) Carmen began seeing changesin appellant’s appearance (baggypants and short hair), but did not believe that he was becoming a gang member. (19RT 2956.) After Carmen movedout of her mother’s house, appellant alternately lived with her and his father, and lived with his girlfriend Desiree for a few months. (19RT 2964, 2970.) The jury was shown photographsof appellant’s family, including his two -28- ’ 3 daughters. (18RT 2800-2806.) Linda started going to Praise Chapel, and appellant went with her 1991-1993. (18RT 2806.) Lindadid notvisit appellant’s various schools when he was a child, and does not remember whether he graduated from high school. (18RT 2806.) Rubentestified that appellant went to Dominquez High School, but did notfinish. (19RT 2899.) Linda has been drug-free for 11 years. (18RT 2813.) Rubentestified that appellant was at Ruben’s house the day before the shootings. (18RT 2876.) Appellant had probably about a six pack of beer between 11:00 a.m. and 1:00 p.m., as well as five shots of tequila. (18RT 2876-2880.) It was normal for appellant to drink that much, but Ruben was not aware that appellant had a drug and alcohol problem. (18RT 2880.) Desiree Leanos, appellant’s girlfriend, was also at the barbeque andtestified that she saw appellant drinking tequila that day. (19RT 2915.) She knew that appellant also used methamphetamine and marijuana, but did not see him using drugs that day. (ORT 2915.) Carmen and appellant used to smoke marijuana and use methamphetamine together, but Carmen only saw him drinking beerand tequila that day. (19RT 2948, 2951.) There was food at the barbeque, and everyoneate throughout the day. (18RT 2889, LORT 2926, 2974.) On the night of the barbeque, appellant fell asleep around 9:00 p.m., and was then paged to go somewhereandleft about 11:30 p.m. (19RT 2926.) He did nottell Desiree where he wasgoing, and left with his sister Carmen and her husband so they could drop -29- him off somewhere. (19RT 2926, 2929.) Carmen and her husband droppedappellantoff in Compton, off Alondra. (19RT 2951.) Appellant appeared intoxicated and Carmen could smell alcohol on his breath while he wassitting in the backseat of the car. (L9RT 2951.) Appellant’s father, Ruben was a member of CV3, a Compton Street gang. (19RT 2897.) Appellant knew Ruben wasin a gang and Rubenhasassociated with someof his old gang friends while appellant was present. (19RT 2897.) Ruben told appellant not to follow in his footsteps and get involved with gangs. (19RT 2895.) Ruben wasonceshot at while appellant was with him. (19RT 2902.) Jose Jimenez has knownappellant since about 1989”, when appellant attended a homeBible study with Jimenez through Praise Chapel Christian. (18RT 2814, 2819.) Appellant spent three or four years at the church. (18RT 2819.) Appellant being charged with these crimes shocked him as it seemed out of character, andit is hard to believe he committed them based on his dealings with appellant in Bible study. (18RT 2818.) Jimenez never perceived appellant as a gang member,and to his knowledge appellant was not associated with a gang when Jimenez knew him. (18RT 2829, 2832.) Aurora Rangel and appellant met at Praise Chapel in November 1989. (18RT 2838.) They had a child together in June 1992, married in October 1993, and separated in 4 The jury was shownpictures of appellant’s wedding, which washeld at Jimenez’s house. (18RT 2814.) -30- October 1994. (18RT 2838, 2846.) Appellant and his daughter Vanessaare close,as he continuedto see her after he and Aurora separated. (18RT 2846, 2848.) Aurora has not told Vanessa that appellantis in jail, though Vanessa makes comments aboutseeing her father. (18RT 2850.) Appellant became Desiree Leanos’s boyfriend in February 1995. (19RT 2906.) She met him at Praise Chapel. (19RT 2906.) They have two children together, Celeste and Ruben Junior.» (19RT 2906). Appellant had a new girlfriend, Joanne, but Desiree wasstill also with appellant. (19RT 2921.) b. MitigatingEvidence as to Co-Defendant Mora Cruz Mora knows Joseph Moraashis son, though he has doubts as to whetherthis is true and has neverhada bloodtest to prove paternity. (I9RT 2992.) Mora’s mother, Rosita Mendez wasa prostitute that had sexual relationships with other members of Cruz’s family. (19RT 2992.) Though Cruz married Rosita when Mora wasabout a month old, it was not a happy marriage, involving verbal and physical abuse,and heleft after about four years. (19RT 2995, 2998, 3003.) Mora lived with Rosita’s sister Vickie Cockerill for about a year, during which time Rosita did not see him much. (19RT 3007, 3019.) Mora’s sister Alicia was born about a year later and Cruz and Rosita got back together shortly after that, but he left again about three years later. (IORT 2998.) During that time, he did not spend a muchtime at home because he worked a lot of hours. (19RT ° The jury is shownpicturesofthe children. (19RT 2910-2913.) -31- 2998.) Rosita was going to bars, drinking and using drugs, and the children were left by themselves. (19RT 3007, 3009.) From the time Mora was about 13 years old, he started living with other people, including his aunt Vickie Cockerill and then his cousin Candy Lopez. Mora’s mother had not seen him muchsince then. (19RT 3009, 3022.) After that, Cruz did not have much contact with Mora, only seeing him about once a year, until Mora was 18 or 19 years old and wasin the hospital because he had been shot. (19RT 2995, 2997, 3000.) Lourdes and Mora’s daughter Abigail lived with Cruz for about two months after that, but he asked Lourdes to leave because Lourdes would not pick up after herself, and Moraleft with her. (19RT 2997, 3002.) Cruz has not had much contact with Mora since. (19RT 2997.) Mora andhis daughter Abigail were living with Candy Lopezat the time ofhis arrest. (19RT 3039.) Abigail was not living with her mother because of Lourdes’s home environment. (19RT 3039.) Moraand his sister were not as close as they could have been, but they werestill close and she loves her brother. (19RT 3051.) // // // -32- I. THE TRIAL COURT ERREDIN REFUSING TO GRANTA MISTRIALIN THE GUILT PHASE AFTER THE PROSECUTION’S REPEATED FAILURES TO COMPLY WITH DISCOVERY RULES AND TO DISCLOSE FAVORABLE MATERIAL EVIDENCE IMPAIRED APPELLANT’S ABILITY TO PRESENT A DEFENSE AND VIOLATED APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS. A. Introduction The prosecution’s repeated untimely disclosures of material evidence mid-trial violated appellant’s state and federal rights to due process,a fairtrial, present a defense, equal protection, a reliable guilt and penalty determination, the right to meaningful confrontation and the right to the effective assistance of counsel. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 1, 7, 15, 16, 17, 24.) The prosecution’s failure to timely disclose the evidence below was not adequately remediedbythetrial court’s choice of sanctions and was not harmlessas it hindered appellant’s ability to present a cohesive defense and underminedthereliability of the proceedings. 1. The Prosecution’s Failure to Timely Disclose The Transcript of Lourdes Lopez’ Second Interview With Police, Two Diagrams of the Crime Scene, Four Police Reports, Fourteen Witness Statements, an Arrest Warrant for Jade Gallegos, and an Exculpatory Gun Shot Residue Report, Impaired Appellant’s Ability to Present His Defense. Appellant was charged in Superior Court with murder and attempted robbery with special circumstances on May 5, 1998. The prosecution gave notice on July 9, 1998,of -33- its intention to seek the death penalty. Informal discovery proceedings began,” and over the course of the next six months both sides prepared fortrial, during which several pre- trial hearings were held and discovery was exchanged. (3 CT 567-570, 684-687, 748, 751-752, 787-788, 794-795, 823, 866-869, 871-872, 874-883; IRT A10-A63.) On Tuesday, January 12, 1999, the jury was sworn andthe prosecution beganits case in chief. For the next severaltrial days, the prosecution called and the defense conducted cross-examination of Paula Beltran (3 RT 398-457; 4 RT 460-622), Fidel Gregorio (4 RT 625-647; 5 RT 649-768), Sheila Creswell (5 RT 788-839), and Ramon Valadez (6 RT 842-1000). On Tuesdayafternoon, January 19, 1999, during the testimony of the prosecution’s fifth witness, Lourdes Lopez, appellant’s counsel discovered that she had been given only one of the twotranscripts of taped interviews conducted by police with Lopez. (6RT 1020-1024.) Appellant was given the court’s copy of the missing transcript and as it was late, the court sent the jury homefor the day. Outside the presence of the jury, counsel told the court that it appeared she had notreceivedall the discovery from the prosecution. As an example, counsel told the court that a few days prior she inadvertently saw a diagram in Detective Piaz’s notebookandas a result was just given two diagrams dated 8-26-97. Counsel expressed her concern that there may be outstanding reports she did not have in the case as well. (6RT 1024-1028.) The Appellant filed his motion for informal discovery the day the prosecution filed their notice of intent to seek the death penalty. (3 CT 553-564; IRT A6-A9.) -34- E R S E R E R B E B F R B E B E B D E B E R E S D prosecutor replied that she had turned over “every single piece of paper [she had].” (6RT 1027.) The court suggested counsel go to Detective Piaz’s office that afternoon and go through his notebook to ascertain whether there was any other missing material. (6 RT 1027-1028; 45 CT 11786.) The next morning, on the fifth day of the guilt phase, appellant reported that after going to the Compton Police Department, she discovered at least four (4) major reports that had not been turned overto the defense,at least one of which wasa critical six-page report with witness statements from thirteen (13) different percipient neighborhood witnesses defense counsel had neverheard of before. At least two of the statements appeared “to be directly relevant to the credibility of some of the witnesses that had already testified.” (7RT 1038; See 4 CT 920-964.) Counsel argued that just a cursory examination of the statements confirmed that had she been privy to the details of the reports earlier, they would have affected her cross-examination of the witnesses who had already testified. Counsel stated that some of the information she found contradicted prosecution witness Ramon Valadez’ testimony. (7RT 1039-1040.) Counsel requested a mistrial since the discovery violation hindered the defense and violated Rangel’s rights to due process anda fair trial. (7RT 1038.) Co-counsel for Mora concurred, arguing that it was a direct violation of Brady andthatat least three of the undisclosed witness statements contradicted the first two prosecution witnesses, Paula Beltran and Fidel Gregorio, thus the information would have affected her cross- -35- examination as well. (7RT 1040-1041.) The court took ordered a brief recess and took a half hour to review the newly discovered reports. (7RT 1042-1043.) The court concurred that it was “more than a little concerned” and that there were certain things that warranted follow-up, particularly about a statement from witnesses who heard a cartakingoff after the shots”, a statement that a woman’s voice washeard outside arguing® and a statement by William Florence who claimed he saw a black Hyundai or Honda traveling northbound on Castlegate out of view. (4CT 957; 7RT 1046-1048.) Since the court stated it was not inclined to grant a mistrial, counsel requested in the alternative that the court recess the trial for one week so defense investigators could find and interview the undisclosed witnesses. (7RT 1038, 1045) The court declined to order a mistrial or order a one week continuance, but ordered the case in recess from that morning (Wednesday) until Monday morning with a status conference to be held on Friday.” (7 RT 1045-1047, 1052-1053.) At the status conference on Friday morning, the prosecution turned overyet ’ These statements were made by John and Barbara Youngblood. (4 CT 952- 953.) 8 This statement was made by Fredericka Wilkerson. (4 CT 957) The courtalso stated: “I fully intend to have a hearing once this matter is concluded,and I will order to show cause why monetary sanctions shouldn’t be imposed on the Compton Police Department becauseoftheir failure to produce important information in a timely fashion. 4 And that will probably involve, other than the investigating officer, whois in court, I expectthat I will be seeking to hear from the Chief of the Compton Police Department as a minimumas to whythis has occurred.” (7 RT 1048.) However, no post-trial sanctions hearing on the discovery violations was ever held. (02/24/06 RT 10-11.) -36- E S §€ RB E B € 3 B € S B € £ B € B E B E B E S another witness statementattributed to Yesenia Jimenez, someone who had been referenced in the evidence previously presented which was“totally contradictory to [an]other report” previously disclosed. (7 RT 1060; see 4 CT 958-959.) The prosecution also turned over a warrant regarding Jade Gallegos and tworeceipts for the G.S.R.~ testing. Co-counsel argued that the nondisclosure of so many reports and witness statements that contradicted the prosecution’s case affected appellant Mora’s right to a fair trial and again requested the case be dismissed. The court declined stating: “I have suspendedthetrial to give you an opportunity to communicate with theses witnesses and will entertain any other request you have by wayof sanctions for these — for this failure to comply with the discovery requirementsthat is allowed by law.”Both counsel respondedthat they would be requesting a jury instruction and the court responded to have one prepared for whenthey gotto that stage ofthetrial’ (7 RT 1056-1063 4 CT “G.S.R.” stands for “gun shot residue.” The results of the G.S.R. were negative for appellant even though the prosecution had previously told appellant’s counsel that they were positive. (13RT 2000.) The G.S.R. results as to Mora were excluded due to the late disclosure. (4CT 878, 880; 13RT 2039.) " The court combined the undisclosed reports and marked them as court’s exhibit “Y” for the record. (7RT 1056, 1060-1061; 4CT 920-964.) The court again indicated it would give a formal instruction toward the end of the guilt phase covering the additional discovery violations that had come to light. (13RT 1998, 2003-2005.) However, whenthe defense presented a special instruction on the prosecution’s various discovery violations, the court declined to give it and instead gave a modified version of CALJIC 2.28. (SCT 1114, 1169; 13RT 2132; 14RT 2174-2176, 2197-2198; See Argument I.D.3, supra.) -37- AePRARNCeBAROTORSINN IS CARIE amOB 994-968.) The guilt phase proceeded on Monday, January 25, 1999, with the testimony of Lourdes Lopez. (7RT 1064; 4CT 971.) After the court recessed for the day, the prosecution notified the court that four of the witnesses from the untimely disclosed reports (John and Barbara Youngblood, William Florence and Armando Martinez) had arrived in court as a result of subpoenas. (7RT 1228-1229.) The prosecution disclosed that it spoke with all the witnesses that day andin its interview of John Youngblood, he had identified Mora as the perpetrator wearing the white shirt and gray pants, whereasin his previous witness statement disclosed to the defense he had not identified anyone. The prosecution also disclosed that one of the other witnesses’ stated they did “see the back of the car,” whereas previously they had stated they did not see anything. (7RT 1229- 1230.) The prosecution indicated its intention to call John Youngblood and possibly William Florence. The defense objected to the prosecution calling any of the witnesses based uponthe late disclosure; the court found the issue to be premature. (7 RT 1231- 1232.) On Thursday, January 28, 1999, the prosecution sought to call John Youngblood. Appellant again objected to Youngblood being able to testify since he had not been previously disclosed to the defense. The court overruled the objection and allowed 8 The prosecution could not remember which witness this was. She opined that it could have been either Armando Martinez or John Youngblood. (7 RT 1230.) -38- e S € S B € S B € B F B E€ FB E R B E B £€ SB e e | e ) Youngbloodto testify. (10 RT 1621-1623.) Both defense counsel were forced to have their investigators interview Youngblood that day during court recesses. During the recess just prior to his testimony, Youngblood changedhis story when speaking with Mora’s investigator and stated that he would be identifying Rangel instead of Mora. Youngblood wrote a six-page statement for the investigator. (LORT 1621-1622.) Appellant requested that the court allow time for Mora’s counsel to copy the statement so that both counsel could review it prior to Youngblood’s testimony, but the court refused. (10 RT 1622, 1625-1626.) Appellant complained to no avail that it was a denial ofa fair trial to be forced to cross-examine a witness without first being able to review the written statement implicating her client. (1ORT 1622.) Mora’s counsel wasforced to read the statement during the prosecution’s direct examination of Youngblood and appellant’s counsel was forced to review the statement during her cross-examination of Youngblood. (LORT 1624, 1652-1654.) Appellant complained during cross-examination that she was having trouble focusing her questions because she had just received the statement and it was contradictory to Youngblood’s testimony. (1ORT 1695.) Further, both appellants were forced to cross-examine Youngblood withoutthe benefit of any rap sheets on him having been turned over. (1ORT 1652.) Appellant requested to have rap sheets run on Youngbloodbefore her cross-examination. The prosecution stated she would stipulate to them instead. Appellant indicated she would -39- like to ask Youngblood whether he had any felony convictions, but the court refused stating that Youngblood would remain on call and if any felonies turned up, the prosecution could stipulate to them. Appellant again objected arguing that the situation wasa denial of appellant rights to have a fair trial, due process of law and equal protection. (See ArgumentIII, post; 10 RT 1652-1653; 45 CT 11773, 11786-11787.) 2. The Prosecution’s Failure to Timely Disclose the Fingerprint Analysis Report From The Crime Scene Impaired Appellant’s Ability to Prepare His Defense. On February 1, 1999, the prosecution recalled Detective Branscombastheir last witness. (12RT 1866.) On February 2, 1999, after the prosecution rested, it turned over a four-page fingerprint report dated December 3, 1997. Throughout the proceedings, counsel had beentold by the prosecution that no fingerprint testing had been done. (13RT 1991.) However, the newly disclosed report reflected that four expended shell casings and a beer can hadin fact been tested for fingerprints and none matching the defendants were found.’ (13RT 1990-1992.) Defense counsel for both defendants requested a mistrial arguing that they had been misled andthat the failure to timely disclose the report adversely affected their cross-examination of police witnesses who had alreadytestified. The four-page report was not included in the earlier undisclosed materials appellant’s counsel discovered at the Compton Police Department on January 19, 1999, but was “discovered”by Detective Piaz’ after Detective Branscomb’s testimony that no fingerprinting analysis had been done.(13 RT 1990-1992.) -40- e a € 8 §€ @3 @ € 3 8 2 3 € 2 3 Hs 4 ; 4 aA fr 4 “ E E e re : 7 . a L a : 3 = E ’ 3 $ 3 §€ 3@ € 8 9 F B €£ €B £ 8 a @ t a . Counsel argued” that the disclosure of the report after all the prosecution witnesses had testified undermined a large portion of the defense and that had they hadit earlier they could have proceeded differently. (13RT 1993-1997.) Moreover, counsel argued that the repeated and continuing discovery violations, including having to scramble to interview thirteen previously undisclosed witnesses mid- trial, had altered and ultimately hamperedtheir ability to present a defense. (13RT 1993- 1994, 1998.) The court agreed that a discovery violation had occurred but declined to grant a mistrial‘ and instead heard arguments on whether to exclude the newly disclosed fingerprint analysis report. (13RT 1994-1998.) Counsel argued for exclusion of the fingerprint report and the right to argue in the same posture asif there had been no examinationssince they had both cross-examined witnesses under the premise that the fingerprinting had never been done and to now admit the report would make them looklike fools and erode the defense argument. Over defense objection, the court decided to admit the report and admonishthe jury that the report was madeavailable to all counsel that day, thus the defense did not know aboutit Appellant and co-appellant joined in each other’s arguments regarding their request for a mistrial. (13RT 1993-1998.) The court again expressedits intention at the conclusionoftrial to set an order to show cause with regard to monetary sanctions from the Compton Police Department for the various discovery violations, stating: “I will add this to mylist.” (13 RT 1997.) However, as noted previously, no post-trial hearing ever occurred. (02/24/06 RT 10-11.) -4]- when they cross-examined the witnesses the day before.” (13 RT 1997-2008, 2109-2113, 2128-2129; 4 CT 999-1002.) After approximately two and a half hours of deliberations’, the jury returned verdicts of guilty and true findings on all counts and special allegations. (4 RT 1007, 1036-1037A.) B. Standard of Review A trial court’s rulings on discovery motions are reviewed underan abuse of discretion standard. (People v. Ashmus (1991) 54 Cal.3d 932, 979.) In the exercise of its discretion,a trial court may “consider a wide range of sanctions” in response to the prosecution’s violation of a discovery order.” (People v. Ayala (2000) 23 Cal.4th 225, 299.) Trial court’s may prohibit testimony of witnesses if other sanctions have been exhausted and maydismiss charges if “required ... by the Constitution of the United States.” (Pen. Code § 1054.5, subd. (c); but see People v. Ashraf(2007) 151 Cal.App.4th 1205, 1213.) A trial court’s ruling on motions for mistrial are reviewed underan abuse of At the close of the guilt phase evidence, the court instructed the jury, with among otherinstructions, a modified version of CALJIC 2.28 regarding the Compton Police Department’s failure to timely produce the witness statements and the fingerprint analysis report. (5 CT 1114; See Argument 1.D.3, infra..) 8 The jury commenceddeliberations at 2:55 p.m. on February 4, 1999 and broke for its evening recess at 3:15 p.m. On February 5, 1999,the jury deliberated from 9:05 a.m. until 10:30 a.m. and again from 10:45 a.m.until 11:20 a.m. whenit notified the court it had reached its verdicts. (4 CT 1007, 1036-1037A.) -42- discretion standard. (People v. Lewis (2006) 39 Cal.4th 970, 1029; People v. Ayala, supra, 23 Cal.4th at p. 282-283.) However, a mistrial should be granted when the moving party’s chances of receivinga fair trial have been irreparably damaged. (People v. Ayala, supra, 23 Cal.4th at p. 283-284.) C. The Prosecution Has Statutory and Constitutional Duties to Timely Disclose Material Evidence to the Defense. In criminal cases, discovery is available based on the California Constitution, the reciprocal discovery provisions of Penal Code sections 1054 through 1054.10, and as mandated by the Due Process Clause of the United States Constitution. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 30; Pen. Code, § 1054, subd. (e).) This discovery schemeis intended to promote the ascertainmentoftruth; to save court time; to protect victims and witnesses from danger, harassment, and undue delay; and to preventtrial by ambush. (/n re Littlefield (1993) 5 Cal.4th 122, 131.) These objectives are consistent with the true purpose ofa criminaltrial; ascertainment ofthe facts. (Jbid.) 1. The Prosecution’s Statutory Duty to Disclose Penal Code section 1054.1 provides: The prosecuting attorney shall disclose to the defendantor his or her attorney all of the following materials and information,if it is in the possession ofthe prosecuting attorneyor if the prosecuting attorney knows it to be in the possession of the investigating agencies: "9 The prosecution is presumed to have knowledgeofall information gathered by the investigating agency. (Jn re Brown (1998) 17 Cal.4th 873, 879.) -43- (a) The names and addressesof persons the prosecutor intendsto call as witnessesattrial. (b) Statements of all defendants. (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcomeofthetrial. (e) Any exculpatory evidence. (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutorintendsto call at thetrial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons whichthe prosecutorintends to offer in evidenceat the trial. (Penal Code § 1054.1) Here,all of the evidence discussed, infra, was found bythetrial court to have been untimely disclosed under the applicable discovery statutes. Moreover, each item was “discovered” in Detective Piaz’ trial notebook, and thus was “reasonably accessible” to the prosecution; the failure to turn over the items constituted a violation of Penal Code section 1054.1 as well as appellant’s state and federal constitutional right to due process and a fair trial. (6RT 1026-1027; 7RT 1037-1038; 13RT 1992.) Un re Littlefield, supra, 5 Cal.4th 122, 135; People v. Little (1997) 59 Cal.App.4th 426, 431-433.) 2. The Prosecution’s Constitutional Duty to Disclose Underthe due processclause of the United States Constitution, the prosecution must disclose to the defense any “evidence favorable to the accused”that is “material either to guilt or to punishment.”2” (United States v. Bagley (1985) 473 U.S. 667, 676; 70 The prosecutor’s duty to disclose evidence that is favorable to the accused includes the duty to disclose evidence that would impeachthe testimony of -44- Brady v. Maryland (1963) 373 U.S. 83, 87; see Pen. Code § 1054, subd. (e); Peoplev. Cook (2006) 39 Cal.4th 566; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378.) The failure to do so, regardless of the good faith of the prosecution, violates the accused’s constitutional right to due process. (Abatti v. Superior Court (2003) 112 Cal.App.4th 39.) In Brady v. Maryland, supra, 373 U.S. 83, the U.S. Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process wherethe evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” U/d. at p. 87.) Pursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether the defendant makesa “specific request” (id. at p. 87), a general request, or noneatall. (United States v. Agurs (1976) 427 U.S. 97, 107; In re Brown,supra, 17 Cal.4th 873, 879.) Brady “is a disclosure rule, not a discovery rule.” (United States v. Higgins (7th Cir. 1996) 75 F.3d 332, 335.) Evidence is favorable and mustbe disclosedif it will either help the defendantor hurt the prosecution. (People v. Coddington (2000) 23 Cal.4th 529, 589-590.) Impeachment, as well as exculpatory, evidence falls within the Brady rule. (See United States v. Bagley, supra, 473 U.S. 667, 676; People v. Ochoa (1998) 19 Cal.4th 353, 473.) “Brady information [therefore] includes ‘material . . . that bears on the material witnesses. (/d.; Evid. Code § 780 [jury may consider any matter that has any tendencyin reason to proveor disprove a witness’s testimony.].) -45- credibility of a significant witness in the case.’” (United States v. Brumel-Alvarez (9th Cir. 1993) 991 F.2d 1452, 1461 (quoting United States v. Strifler (9th Cir. 1988) 851 F.2d 1197, 1201, cert. den. (1989) 489 U.S. 1032.) In In re Brown, supra, 17 Cal.4th 873, this Court emphasizedthat neither the prosecutor’s good faith nor actual awareness(or lack thereof) of exculpatory evidence in the government’s hands is determinative of the prosecution’s disclosure obligations: “The scopeof this disclosure obligation extends beyond the prosecutor’s case file and encompassesthe duty to ascertain as well as divulge ‘any favorable information knownto others acting on the government’s behalf. [Citation omitted.]’” (in re Brown, supra, 17 Cal.4th at p. 879; see also, Carriger v. Stewart (9th Cir. 1997) 132 F.3d 463, 479 (en banc); United States v. Kearns (9th Cir. 1993) 5 F.3d 1251, 1254.) Because the prosecution is in a unique position to obtain information knownto other agents of the government, it may not be excused from disclosing what it does not know but could have learned. Rather, the prosecution has a duty to learn of any exculpatory evidence knownto others acting on the government’s behalf. (Jn re Brown, supra, 17 Cal.4th at 879-880; see also, Kyles v. Whitley (1995) 514 U.S. 419, 437-438.) Here, the issue is not that material evidence was never disclosed but thatits untimely disclosure so interfered with the defense’s ability to effectively defend its case that it undermined confidencein the verdicts of guilt. Delayed disclosure is considered a Bradyviolation if the defense does not receive the informationin timeforits effective -46- a use at trial or is prejudiced by the delay. (See People v. Wright (1985) 39 Cal.3d 576, 590-591; United States v. Coppa (2d Cir. 2001) 267 F.3d 132, 144 [due process requires that Brady material must be disclosed in time for its effective use at trial]; in accord, Knighton v. Mullin (10th Cir. 2002) 293 F.3d 1165, 1172-1173 [Brady violated if disclosure is madeafterit is too late for the defendant to make useof any benefits of the evidence.]; United States v. Ingraldi (1st Cir. 1986) 793 F.2d 408, 411-412 [“When the issue is one of delayed disclosure rather than of nondisclosure, however,the test is whether defendant's counsel was prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant's case. Citations omitted. |.) Here, appellant wasseriously misled by the prosecution’s failure to comply with its discovery obligations and was simply unable mid-trial to makethe effective use of the untimely disclosed evidence. (Jn re Brown, supra, |7 Cal.4th at p. 887.) Further, the sanctions offered by the trial court were inadequate to cure the harm. Appellant was forced to investigate its case mid-trial, to cross-examine witnesses without the benefit of relevant impeachmentevidence andto alter their theory of defense. It is well established that a trial counsel cannot provide meaningful representation unlesshis or hertactical choicesare fully informed. (See e.g., Wiggins v. Smith (2003) 534 U.S. 510; In re Jones (1996) 13 Cal.4th 552.) If this principle holds when the lack of informationis the result of counsel’s owndereliction, it certainly applies when the absence of critical information is the fault of the prosecution. Appellant should not have been penalized because -47- information critical to his counsel’s rational strategic choices wasnot available to counsel through no fault of his own. Such a result would be a perversion of due process, as well as the constitutional guarantee of equal protection of the law. (Wardius v. Oregon (1973) 412 U.S. 470, 474.) Thus, the delayed disclosure constitutes both statutory and constitutional error. As shown below,the error wasalso prejudicial and requires that appellant’s case be reversed. D. Appellant is Entitled to a Reversal Since his Ability to Present a Defense and Receive a Fair Trial Was Irreparably Damaged By The Multiple Instances of Untimely Disclosure of Material Evidence Without Adequate Remedy. Failure of the prosecution to timely disclose the identity and statements of multiple witnesses, diagrams, warrants, reports and fingerprint and gun shot residue results prejudiced appellant since it undermined the presentation of his defense case and ultimately the reliability of the jury’s guilt determination. Thetrial court’s denial of appellant’s request for a reasonable continuance, repeated requests for a mistrial and exclusion of both John Youngblood’s testimony andthe fingerprint analysis report were erroneous. Thetrial court’s choice of remedies, a two day recessto find and interview witnesses, an admonishmentregarding the fingerprint report and a faulty jury instruction (see Argument I.D.3) providedlittle, if any, relief from the damage doneto appellant’s fundamental due processright to receive a fairtrial. Violations of California’s reciprocal discovery statute (Penal Code § 1054.1) are subject to the harmless-error standard of prejudice set forth in People v. Watson (1956) 46 -48- Cal.2d 818, 836, i.e., reversal is required whereit is reasonably probable that the error affected the trial result. (People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13; People v. Bohannon (2000) 82 Cal.App.4th 798, 805.) “Reasonably probable” is defined as a probability sufficient to undermine confidence in the outcome. (/n re Sassounian (1995) 9 Cal.4th 535, 544, fn. 6; see also Kyles v. Whitley, supra, 514 U.S. 419.) Violations of federal constitutional rights are subject to the harmless beyond a reasonable doubt standard of prejudice set forth in Chapman v. California (1967) 386 U.S. 18, i.e., such errors will be found prejudicial unless the prosecution can show beyond a reasonable doubt that the error did not contribute to the verdict. In either instance, the reviewing court may considerany directly adverse effect that the prosecutor’s actions may have had on the preparation or presentation of the defendant’s case. (See People v. Hoyos (2007) 41 Cal.4th 872.) Reversal is warranted if the collective effect of discovery violations could reasonably have put the case in such a different light as to undermine confidence in the verdict. (See People v. Kasim (1997) 56 Cal.App.4th 1360.) In United States v. Bagley, supra, 473 U.S. 667, the Supreme Courtfirst explained the meaning of the term “material.” In Kyles v. Whitley, supra, 514 U.S. at p. 434, the court held that evidence is “material” if there is a “reasonable probability” that the outcomeof the trial would have been different had the evidence been disclosed, which occurs when the undisclosed evidence “could reasonably be taken to put the whole case in -49- such a different light as to undermine confidence in the verdict.” In Kyles, the Supreme Court reemphasized four aspects articulated in Bagley critical to proper analysis of Brady error. This Court has specifically adopted these criteria as applicable to California cases. Un re Brown, supra, \7 Cal.4th at pp. 886-888.) “[A|lthough the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). [Citations.] Bagley’s touchstone of materiality is a ‘reasonable probability’ of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whetherin its absence he received a fair trial, understoodasa trial resulting in a verdict worthy of confidence.” (Kyles v. Whitley, supra, 514 U.S. at p. 434; In re Brown, supra, 17 Cal. 4th at p. 886.) “It is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidencein light of the undisclosed evidence, there would not have been enoughleft to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showingthat the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidencein the verdict.” (Kyles, supra, 514 U.S.at pp. 434-435; In re Brown, supra, 17 Cal.4th at pp. 886-887.) -50- ‘ o e é g e a 6 a It is not a harmless error test. The materiality test subsumes any harmless-error analysis. (Kyles, supra, 514 U.S. at pp. 435-536; In re Brown, supra, 17 Cal.4th at p. 887.) While the tendency and force of undisclosed evidence is evaluated item by item,its cumulative effect for purposes of materiality must be considered collectively, in the context of all the other evidence. (Kyles, at pp. 436-437 & n. 10; Agurs, supra, 427 U.S. at p. 112, fn. omitted [omission “must be evaluated in the context of the entire record”’|; In re Brown, supra, 17 Cal.4th at p. 887.) Moreover, “[A|n incomplete response to a specific [Brady] request not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence doesnot exist. In reliance on this misleading representation, the defense might abandonlines of independent investigation, defenses,ortrial strategies that it otherwise would have pursued. (United States v. Bagley, supra, 473 U.S. at p. 682.) Given this possibility, “Under the [‘reasonable probability’] formulation the reviewing court may consider directly any adverse effect that the prosecutor’s failure to respond might have had on the preparation or presentation of the defendant’s case. The reviewing court should assess the possibility that such effect might have occurredin light of the totality of the circumstances and with an awarenessofthe difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor’s incomplete response.” (/d. at p. 683.) Here, the missing transcript, diagrams, witness statements, fingerprint and G.S.R. report went to the heart of the defense. Each of the untimely disclosed items violated the rule that all discovery needed to be turned overto the defenseat least thirty days before trial. (Pen. Code § 1054.1.) Appellant reasonably prepared his case and theory of defense -5]- based uponthe discoverydisclosedpre-trial, e.g., that Lourdes Lopez only made one statementto police, that all the percipient witnesses to the shootings and interviewed by police had beendisclosed, that the G.S.R. testing would be positive as to appellant and that no fingerprinting had ever been done. Yet, mid-trial appellant discovered that the Compton Police Department had been withholding material evidence that its own investigating officer was usingattrial to assist the prosecution,”e.g., that Lourdes Lopez made two statementsto police, that there were thirteen additional neighborhood witnesses” who had given statementsto police investigators~”, that the G.S.R.testing results as to appellant were actually negative and that the evidence hadbeentested for fingerprints, but with negative results. The cumulative effect of the above discovery violations resulting in untimely and misleading disclosures wasthat the defense prepared its case based upon erroneous assumptionsasto the state of the evidence only to be blind- 71 The four major reports, thirteen percipient witness statements and two diagrams were discovered by the defense after a review of Detective Piaz’ trial notebook. Detective Piaz wasthe investigating officer the prosecution designated fortrial. (4 RT 473; 6 RT 1025-1028; 7 RT 1037-1038.) * Those witnesses were: John Youngblood, Barbara Youngblood, William Roper, Mae Roper, Armand Avila, Shaun Harris, Jose Rosas, Armando Martinez, Fredericka Wilkerson, Alice Whiting, OmarIslas, Joseph Emmitt, and William Florence. (4CT 952-957.) 8 Anadditional undisclosed witness report was also turned over by the prosecution on Friday, January 15, 1999, detailing a police interview with percipient witness Yesenia Jimenez. Counsel represented that this new report “is totally contradictory to the other report that we previously had.” (4CT 958-959; 7RT 1056, 1060.) -52- | ae E S A t§ .2 E S B § € R £ € B F R B E B E R B E B E R B F R B E A B R B E R E B E F S E M E A sided mid-trial with new and different facts. Moreover, several of the untimely disclosed items were favorable to appellant and material to the determinationof guilt, thus further violating the federal constitution. (Brady v. Maryland, supra, 373 U.S. at 87.) First, the untimely disclosed reports revealed impeachment material against three prosecution witnesses who had already beencalled and cross-examined,i.e., Paula Beltran, Fidel Gregorio, and Ramon Valadez. (7RT 1039- 1041.) Impeachment, as well as exculpatory, evidence falls within the Brady rule. (United States v. Bagley, supra, 473 U.S. at 676; People v. Ochoa, supra, 19 Cal.4th at 473.) Second, the untimely disclosed reports revealed potentially exculpatory information from witnesses not previously disclosed to the defense,i.e., Barbara Youngblood, John Youngblood, William Florence and Fredericka Wilkerson. (4CT 952- 953, 957; 7TRT 1046-1048.) The only remedies offered by the court for the various discovery violations were: (1) a two dayrecess of the proceedings,i.e., the rest of the day Wednesday, January 13, 1999, and Thursday, January 14, 1999, so defense investigators could find and interview the newly disclosed witnesses, an admonishmentto the jury to essentially disregard the defense’s cross-examination aboutthe failure to test the evidence for fingerprints and a jury instruction regarding the Compton Police Department’s failure to timely produce evidence. Each of these remedies were not only inadequate, but served to further prejudice the defense case by forcing appellant to: re-investigate the case mid-trial; to ~53- cross-examine witnesses without the benefit of impeachment evidence; to cross-examine witnesses without adequate time to prepare (see Argument I.B1, supra.); to proceed with a defense theory developed throughout cross-examination that was later proven untrue(i.e., that the police failed to analyze the evidence for fingerprints despite the opportunity to do so); and to have the jury instructed without any guidance as to how to evaluate how the untimely disclosures affected the defense case. (See Argument I.D.3, supra.) It is impossible to reconstruct howthis trial would have gone had the prosecution timely complied with the discovery and turned over favorable evidence earlier. The prosecutor’s failure to provide this material meant that counsel had a materially incorrect understanding of the state of the evidence when developing a theory of defense and when cross-examining prosecution witnesses. This violation of clearly established law deprived appellant of the effective assistance of counsel, his right to effective confrontation,to present a defense, equal protection, due process,a fair trial, and a reliable guilt and penalty determination. It rendered these proceedings fundamentally unfair, and requires that appellant’s conviction be reversed. (In re Brown, supra, 17 Cal.4th at p. 887; see also Kyles v. Whitley, supra, 574 U.S. At p. 435; United States v. Bagley, supra, 473 U.S. at p. 678.) / H -54- c = £ 6 FE B SE M FE R £E D E S ES B 2 n s ns + “9 4 II. THE TRIAL COURT?’S RESTRICTION OF APPELLANT’S CLOSING ARGUMENTAND REFUSALTO GIVE APPELLANT’S REQUESTED INSTRUCTION REGARDING THE PROSECUTION’S FAILURE TO FULLY AND TIMELY PROVIDE PRETRIAL DISCOVERY PREJUDICIALLY VIOLATED APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS. A. Introduction Thetrial court’s restriction of appellant’s closing argumentand refusal to instruct the jury fully regarding the prosecution’s repeated discovery violations and instead instructing the jury only with a modified version of CALJIC 2.28 limited to the Compton Police Department’s unintentional failure to timely produce witness statements and the fingerprint report, violated appellant’s state and federal constitutional rights to due process,a fair trial, to present a defense,to the effective assistance of counsel, and to a reliable guilt and penalty determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. 1 §§ 7, 17, 24.) 24/At a status conference held mid-trial— on Friday, January 22, 1999, appellants’ madetheir second mistrial request based on the prosecution’s untimely disclosure of diagrams, warrants and multiple witness statements. The court responded: “I have suspended the trial to give you an opportunity to communicate with theses witnesses and will entertain any other request you have by wayof sanctions for these — for this failure to 24 This hearing was held during a two-day suspensionofthe prosecution’s case in the guilt phase to give the defense an opportunity to communicate with previously undisclosed prosecution witnesses. (See ArgumentI., ante.) -55- comply with the discovery requirements that is allowed by law.” It denied the motion. Both counsel stated that they would be requesting a jury instruction and the court agreed, telling them to have one prepared for when they got to that stage of the trial. (7 RT 1056- 1063; 4 CT 994-968.) At the close of the prosecution’s guilt phase case, appellants Rangel and Mora again requested a mistrial based on not only the earlier discovery violations, but on a multitude of continuing discovery violations, including an untimely disclosed fingerprint report. The court again declined to grant a mistrial and indicated it would give a formal instruction toward the end of the guilt phase covering the additional discovery violations that had cometo light. (13 RT 1998, 2003-2005.) Whenthe defense presented a special instruction on the prosecution’s various discovery violations, the court declined to give it and instead gave a modified version of CALJIC 2.28 regarding the Compton Police Department’s failure to timely produce witness statements and the fingerprint report. (S CT 1114, 1169; 13 RT 2130-2132; 14 RT 2174-2176, 2197-2198.) B. Standard of Review A reviewing court independently reviews issues pertaining to jury instructions. (People v. Waidla (2000) 22 Cal.4th 690, 733, 737 [“Whetheror not to give any particular instruction in any particular case entails the resolution of a mixed question of law andfact that, we believe, is however predominantly legal. As such, it should be examined without -56- & S E S E B E D R F S B E B E R B F S R E R E R B € B F R B £ £ E S B deference”].) The trial court’s restriction of defense counsel's closing argumentis reviewed for abuse of discretion. (See People v. Benavides (2005) 35 Cal.4th 69, 110.) C. The Trial Court’s Instruction Regarding the Compton Police Department’s Failure to Timely Produce Evidence Was Misleading, Incomplete And Failed to Provide Adequate Guidancefor the Jury. A trial court has a duty to instruct the jury on every principle of law necessary to decide the case, including defenses. (People v. St. Martin (1970) 1 Cal.3d 524, 531; People v. Russell (2006) 144 Cal.App.4th 1415, 1424.) The defense has the right to an instruction “relating particular facts to any legal issue.” (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885; People v. Sears (1970) 2 Cal.3d 180, 190.) Such instructions may direct the jury’s attention to evidence that could raise a reasonable doubt about the defendant’s guilt. (People v. Saille (1991) 54 Cal.3d 1103, 1119; People v. Granados (1957) 49 Cal.2d 490, 496.) Moreover,trial judges must give the instructions required by the facts of the case on trial and standard instructions may need modification given the facts of the particular case. (See People v. Pulido (1997) 15 Cal.4th 713, 729; People v. Runnion (1994) 30 Cal.App.4th 852, 858; see also Cal. Rules of Court, rule 2.1050(e).) The giving of CALJIC 2.28 which permits the jury to considerthe failure to timely produceevidence,has been held to be prejudicial error because, among other reasons, the instruction provides no guidanceas to how thetardy disclosure might legitimately affect the jury’s deliberations andit injects discovery compliance issues into the jury’s evaluation of the evidence inviting mini-trials on collateral issues such as what happened -57- and why.(People v. Lawson (2005) 131 Cal.App.4th 1242; People v. Cabral (2004) 121 Cal.App.4th 748; People v. Bell (2004) 118 Cal.App.4th 249; People v. Saucedo (2004) 121 Cal.App.4th 937; see also People v. Riggs (2008) 44 Cal.4th 248.)Although in each of these cases the instruction was given as a result of the defendant’s failure to timely produce evidence,the giving of the instruction in appellant’s case as a result of the prosecution’s delayed disclosure was error and prejudicial for the reasons set forth below. As a result of the prosecution’s repeated discovery violations, the defense submitted the following special instruction entitled “Prosecution Misconduct.”: In this case the prosecution violated the Discovery Lawsbyfailing to turn over to the Defense, police reports involving this case, and other evidence. The law requires that all discovery must be reciprocal and given to the defense 30 dayspriorto the start of trial. { This violation was unfair to the defense and put them in a position where they had to continue to investigate this case during the course ofthe trial. § This violation was largely attributed to the Investigative officers and Detectives from the Compton Police Department who withheld these reports from the Defense. § You may considerthis violation and give it whatever weight and/or significance you believe it deserves in your deliberations. (5 CT 1169, emphasis added.) 25 As a result of these cases, CALJIC 2.28 has since been replaced by CALCRIM 306entitled “Untimely Disclosure of Evidence”andit instructs: “Both the People and the defense mustdisclose their evidence to the other side beforetrial, within the time limits set be law. Failure to follow this rule may denythe other side the chanceto produceall relevant evidence, to counter opposing evidence,or to receive a fairtrial. 4 An attorney for the (People/Defense) failed to disclose [within the legal period]. { In evaluating the weight and significance of that evidence, you mayconsiderthe effect, if any, of that late disclosure.” (CALCRIM 306; People v. Lawson, supra, 131 Cal.App.4th at pp. 1248-1249.) -58- cs = e a os a 4 : 4 7 - _ y e a “a @ fs i es 3 = e d . R o a : o e Eo f i s E e o o ar es i h E S 3 _ - B S E g . a b o 3 sie 3 i n a oa The court declined to give the special instruction and instead instructed the jury pursuant to CALJIC 2.282", modified as follows: “The prosecution and the defense are required to disclose to each other before trial the evidence each intends to presentat trial so as to promote the ascertainmentof the truth, save court time and avoid any surprise which may arise during the course ofthe trial. Delay in the disclosure of evidence may denya party a sufficient opportunity to subpoena necessary witnesses or produce evidence which mayexist to rebut the non-complyingparty's evidence. Disclosures of evidence are required to be madeat least 30 days in advanceoftrial. Any new evidence discovered within 30 daysoftrial must be disclosed immediately. In this case, the Compton Police Department failed to timely disclose the following evidence: (1) Witness statements elicited from people residing on Castlegate Avenue on August 24, 1997, including the statement from John Youngblood; and (2) Fingerprint analysis report dated December 3, 1997. Although the Compton Police Department’s failure to timely disclose *6 The unmodified version of CALJIC 2.28 read as follows: “The prosecution and the defense are required to disclose to each other beforetrial the evidence eachintendsto presentat trial so as to promote the ascertainment of truth, save court time and avoid any surprise which mayarise during the course ofthe trial. Delay in the disclosure of evidence may denya party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may... exist to rebut the non-complying party's evidence.{ Disclosure of evidence is required to be madeat least 30 days in [advance] of trial. Any new evidence discovered within 30 daysoftrial must be disclosed immediately. In this case, the [People] [Defendant(s)| [concealed] [and] [or] [failed to timely disclose] the following evidence: { [List evidence here] 4] Although the [People's] [Defendant's] [concealment] [and] [or] [failure to timely disclose evidence] was without lawful justification, the Court has, underthe law, permitted the production of this evidence during thetrial. | The weight and significance of any delayed disclosures are matters for your consideration. However, you should consider whether the untimely disclosed evidencepertains to a fact of importance, something trivial or the subject matter is already established by other credible evidence.” (CALJIC 2.28, emphasis added.) -59- evidence was without lawful justification, the Court has, under the law, permitted the production of this evidence duringthetrial. | The weight and significance of any delayed disclosure are matters for your consideration. However, you should consider whether the untimely disclosed evidence pertains to a fact of importance, something trivial or subject matters already established by other credible evidence.” (CALJIC 2.28 [Failure to Timely Produce Evidence (Pen. Code § 1054.5(b))]; 5 CT 1114; 14 RT 2197-2198) Thetrial court’s error in refusing to instruct the jury as the defense requested was exacerbatedby the trial court’s sua sponte deletion of language from the standard CALIJIC 2.28 that the evidence wasintentionally concealedMoreover, upon the prosecution’s request, the court restricted the defense from being able to argue that the untimely disclosure was intentional. (See CALJIC 2.28; 14 RT 2174-2177.) In People v. Bell, supra, the Court of Appeal found that the use of CALJIC 2.28 wasreversible error, in part becausethe instruction given in that case did not provide explicit guidance to the jury regarding why and howthediscovery violation would be relevant to its deliberations. In the Court of Appeal's view,the instruction wasfaulty because, while it informed the jury “that tardy disclosure might deprive an opponent of the chance to subpoena witnesses or marshal evidencein rebuttal, there was no evidence a Thetrial court also refused to insert defense requested language that a beer can wasnot turned over until the defense requested it be tested by an expert. The defense obtained a signed order from the court to have an untimely disclosed beer can tested for fingerprints after Detective Branscomb testified that it had never been tested. The next day, the prosecution disclosed a four-page fingerprint analysis report showing that the beer can hadin fact been tested for fingerprints previously, but none matching the defendants were found. (13 RT 1990-1992, 1995-1997; See ArgumentI, ante.) -60- E m £ 4 . { t S a - 3 a a 4 5 m R F O e d e e c a E s m e : “a a e 2 g a that such an eventuality transpired here.” (People v. Bell, supra, 118 Cal.App.4th at p. 255.) As the court stated, “[I]f here were no diminution of the People's right to subpoena witnesses or present rebuttal, it is unclear how the jurors were to evaluate the weight of the potentially affected testimony. Certainly, in the absence of anypractical impacton the factfinding process, the only sphere of jury responsibility here, the jurors were notfree to somehowfashion a punishment to be imposed on Bell because his lawyerdid not play by the rules.” (/bid.) The court explainedthat the failure of the trial court to adequately explain how the discovery failure should be take into account created a likelihood that the jury would beprejudiced. “The instruction implied that the jurors should “do something” but they were given no idea what that something should be. Their alternatives were severely limited. They could disbelieve, discount, or look askanceat the defense witnesses. But it is not clear why, or to what extent, they should do so in the absence of evidence that the prosecution was unfairly prevented from showingthat the witnesses were unreliable.” (People v. Bell, supra, 118 Cal.App.4th at p. 255.) Similarly, in People v. Cabral, supra, 121 Cal.App.4th 748, the Court held that: “It is axiomatic that a trial is a search for the truth. The rationale of the discovery statute is to prevent ‘trial by ambush.’ Thetrial court has a variety of remedies available to penalize those whofail to comply with its rulings and the requirements ofthe statute. Inviting the jury to speculate, or to punish a defendant for the malfeasance of someoneelse, however, are not among the weaponsin its arsenal.”[citations omitted.] (/d. at p. 752.) Here, as counsel argued, the untimely disclosures were “unfair to the defense and put them in a position where they had to continue to investigate this case during the -61- ‘eSncinchimabananbatmoneibiatipsnin) batear ane tol tana gears course ofthe trial.” (5 CT 1169) The instruction given was faulty becauseit failed to articulate how the untimely disclosed evidence affected the defense’s ability to effectively present its case, not only through the denial of the opportunity to subpoena necessary witnesses and produce rebuttal evidence, but also through the denial of the myriad of other rights affected by the late disclosures. (See ArgumentI, ante, and ArgumentIII, post.) Thus,the instruction left the jury with no way to evaluate the weight and significance of the delayed disclosure on the defense case or the evidence presented. Further, the instruction was incomplete as it only named the Compton Police Departmentfor the failure to timely disclose the evidence. It did notlist the “People” as the responsible party for the delayed disclosure, nor didit list all of the plethora of late disclosures. (See ArgumentI, ante.) The prosecution is presumed to have knowledge of all information gathered by the investigating agency. (Jn re Brown, supra, 17 Cal.4th 873, 879; see also, Kyles v. Whitley, supra, 514 U.S. 419, 437-438.) Each untimely disclosed item was “reasonably accessible” to the prosecution and turned overin violation of Penal Code section 1054.1. Un re Littlefield, supra, 5 Cal.4th 122, 135; People v. Little, supra, 59 Cal.App.4th 426, 431-433; See ArgumentI, ante.) Because of this omission,the prosecution wasable to distance itself from the many discovery violations. In closing argument, the prosecution argued when discussing the murders: “This is serious stuff. { Andthe fact that the Compton Police Department botchedit up, do not take that out on the victims’ family. Do not say...” — at which point a defense objection wassustained. -62- 3 @¢ @@ § € 2 €8 38 £ C A € B E 5 8 (15 RT 2414.) However, immediately thereafter, the prosecutor argued without objection: “Don’t take that out on the People. Don’t say, oh, well, Compton didn’t do this, Compton didn’t do that, so ’m not going to decide. If you are upsetat how they handled this case, you write a letter.” (15 RT 2415.) Moreover, the instruction not only failed to point out that it was the People who failed to timely produce the evidence, but also that the evidence was concealed by the Compton Police Departmentin that they withheld it. This seemingly was undisputed and born out by the trial court’s repeated commentsthat it would hold a hearing for monetary sanctions against the Compton Police Departmentpost-trial. (7 RT 1048; 13 RT 1997.) All of these issues are of particular concern here,in a capitaltrial, requiring special attention to the reliability of the jury’s decisions. Indeed, in People v. Riggs, supra, 44 Cal.4th at p. 308, this Court found that the salient inquiry for the jury is not necessarily how the offended party wasactually adversely affected, but rather, the implications to be drawnagainst the offending party, i.e., the party “did not have much confidence in the ability of its own evidence to withstand full adversarial testing;” “[w]hether or not the [offended party] was actually impaired by the attempt to conceal the evidence would not change the circumstancethat [the offending party] tried to inhibit the [offended party’s] efforts;” and that “the fact of a discovery violation might properly be viewed by the jury as evidence of the [offending party’s] consciousness of the lack of credibility of the evidencethat has been presented on [its] behalf.” (/bid.) -63- The court erred in refusing the defense requested instruction and instead giving the modified CALJIC No. 2.28 since it invited the jury to speculate as to the effect of the discovery violations and gave no guidanceas to how they might have affected the defense case. The instruction, as chosen andgiven bythetrial court as a sanction for the delayed disclosure, was simply an inadequate cure for the government's repeated discovery violations. D. The Trial Court’s Ruling Prohibiting Appellant From Arguing To The Jury That The Discovery Violations Were Intentional Was Error and Violated Appellant’s Constitutional Rights. It is undisputed that there was evidence to support the inference that the Compton Police Departmentintentionally withheld evidence from the defense. As such, appellant had the right to make that argumentto the jury.” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795-796; People v. Thornton (2007) 41 Cal.4th 391, 454; People v. Coffman (2004) 34 Cal.4th 1, 103 [party need not conclusively establish suppression ofthe evidence, there need only be some evidence in the record to support the inference; see also People v. Steel (2002) 27 Cal.4th 1230, 1244; People v. Welch (1999) 20 Cal.4th 701, 752-753.) Closing argumentis a critical stage of the proceedings. (See Herring v. New York (1975) 422 U.S. 853, 858-859, 863.) A defendant’s right to counsel is denied where the 78 Indeed the violations were so egregiousthat the trial court expressedits intention to issue an order to show cause and holda post-trial hearing for monetary sanctions. (7RT 1048; 13RT 1997.) -64- E S E R B E € B € B E R B E B E B E M E B E R B E R D € E B C R B E B E R B E R E S court seriously limits defense closing argument. (United States v. Kellington (9th Cir. 2000) 217 F.3d 1084, 1099-1100 [preventing counsel from arguing the significance of evidencecritical to a theory of defense]; Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739 [precluding reference to an entire theory of defense].) Here, appellant’s defense, like Mora’s was one of mistaken identity. An important aspect of his defense was that the prosecution and the Compton Police Department had repeatedly withheld evidence and manipulated witnesses in order to convict appellant. (See e.g., 6RT 1024-1028; 7RT 1037-1040, 1056-1063; LORT 1622, 1652; 13RT 1990- 1998; L4RT 2281-2286, 2289-2294, 2297-2302, 2305.) Indeed, there was more than sufficient evidence from which the jury could find that the Compton Police Department’s manyblatant discovery violations constituted an intentional concealment of evidence on the part of the prosecution. Had appellant’s jury been permitted to make that determination, it would have viewed the prosecution evidence very differently. (See e.g., Kyles v. Whitley, supra, 514 U.S. 419, 443-454; United States v. Sager (9th Cir. 2000) 227 F.3d 1138, 1145-1146 [trial court committed plain error in excluding evidence relating to police investigation and instructing jurors to refrain from “grading” the investigation; “to tell the jury that it may assess the product of an investigation, but thatit may not analyze the quality of the investigation that producedthe product, illogically removes from the jury potentially relevant information]”.) Therefore, appellant had the right to argue that the discovery violations were deliberate and intentional, not, merely -65- technical violation of timely discovery obligations, as the jury wasinstructed by the court. E. The ErroneousInstruction And Restriction of Closing Argument Constitutes Reversible Error Since The Errors Were Not Harmless. Thetrial court’s instructional error is reversible here since it cannot be shownthat the failure to instruct the jury with an instruction which would havegiven them thetools to assess the prejudice to appellant’s case during the guilt phase was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 499; People v. Molina (2000) 82 Cal.App.4th 1329, 1334; Chapman vy. California, supra, 386 U.S. at 24.) An erroneous instruction requires reversal when it appears that the error was likely to have misled the jury. (People v. Owens (1994) 27 Cal.App.4th 1155, 1159 see also People v. Hernandez (2003) 111 Cal.App.4th 582, 589 [“ ‘If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction” ]; People v. Guiton (1993) 4 Cal.4th 1116, 1130 [in determining whetherthere is prejudice from instructional error, “the entire record should be examined, including”the jury instructions given attrial]. ) Further, the trial court’s erroneous ruling forbidding appellant from arguing that the Compton Police Department’s many discovery violations were intentional, seriously undercut appellant’s counsel’s ability to effectively defend against the charges by preventing counsel from making the argument that the Compton Police Department engaged in a series of intentional and improperacts in order to convict appellant regardless of his guilt or innocence. Appellant’s sole defense was innocence. Errors -66- ce ° ie ey g E o 3 si “g . . _ 3 : . e e = b a rr 3 | 2 I is ot b iB a h e q a a n e S 3 a 4 3 pe on , 3 a A "3 4 i which undercut an accused’s sole defense are extraordinarily prejudicial and rarely harmless under any standard. (See e.g., Francis v. Franklin (1985) 471 U.S. 307, 325- 326; People v. Roe (1922) 189 Cal. 548, 565-566; People v. Thurmond (1985) 175 Cal.App.3d 865, 873-874; People v. Hayes (1985) 172 Cal.App.3d 525; People v. Galloway (1979) 100 Cal.App.3d 551, 561; Luna v. Cambria (9th Cir. 2002) 306 F.3d 954, 962; United States v. Lawrence (9th Cir. 1999) 189 F.3d 838, 842; United States v. Flynt (9th Cir. 1985) 756 F.2d 1352, 1361; United States v. Arroyave (9th Cir. 1972) 465 F.2d 962, 963.) Here, the repeated untimely disclosures of evidence to the defense were unknown to the jury until they were instructed with the modified version of CALJIC 2.28. The circumstances surrounding those untimely disclosures were neverrevealed to the jury by way of instruction or argument. For examples, the jury was notprivyto the following facts: (1) that the defense was unaware of impeachment evidence during the cross- examination of the prosecution’s first four witnesses; (2) that the defense was forced to investigate the case and interview witnesses mid-trial instead of being able to focus on the evidencebeing presented; (3) that there were thirteen witnesses to the crime that had not been disclosed or interviewed by the defensepriorto trial; (4) that when the defense sought to interview the witnesses mid-trial, the witnesses were told notto talk to them by the police, forcing interviews to be conducted in the courthouse hallways during court recesses. (7 RT 1231); (5) that the defense was forced to cross-examineat least one -67- witness without having had the opportunity to even read the witness’ last minute statementidentifying appellant; (6) that the defense had been repeatedly and affirmatively told that no fingerprint testing had been done, despite the fact that it had been; or (7) that the “delay in disclosure” wasactually an intentional concealment ofevidence and the only reason it was ever disclosed was because the defense discoveredit of their own accord — first by “snooping” into Detective Piaz’s trial notebook,then by looking through the notebookat the direction of the court on the fifth day of the guilt phase after the jury had been sent home. In sum, the jury wasneverprivyto the facts that legitimately reflected uponthe credibility of the prosecution witnesses andthe reliability of the prosecution evidence,all of which madethetrial not “a search for the truth,” but rathera trial by ambush. Limiting appellant’s argument to omit that any of the discovery violations might have been intentional and instructing the jury with the modified CALJIC 2.28 was inadequate andtrivialized the jury’s assessment of the discovery violations in this case, leaving the jury with the false impression that they could give weight andsignificance to the “delayed disclosure” without giving them any guidance with whichto do so. Further, the errors resulted in a denial of appellant’s right to present a defense,a fair trial and to effective assistance of counselat a critical stage of the proceedings. The entire judgment should be reversed because it cannot be shown that these errors, either alone or in combination, were harmless beyond a reasonable doubt. -68- g a & a g & 3 ® S 8 € 3 2 € 2 €2 @2 € R @ E€ ES RB E R B € B € F B € S B € R B E B € B £ € M E B a Saad Cy (Chapmanvy. California, supra, 386 U.S. at p. 24.) / / -69- Il. THE TRIAL COURT ERRED IN FORCING APPELLANT TO CONDUCT CROSS-EXAMINATION WITHOUT SUFFICIENT TIME TO REVIEW A NEWLY ACQUIRED SIX- PAGE STATEMENT FROM AN UNTIMELY DISCLOSED WITNESS VIOLATING HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS. A. Introduction Thetrial court’s refusal to grant a brief recess to allow appellant to review a newly acquired six-page handwritten statement of an untimely disclosed prosecution witness prior to examination of the witness, violated appellant’s state and federal rights to due process,a fairtrial, present a defense, equal protection, a reliable guilt and penalty determination, the right to meaningful confrontation and the right to the effective assistance of counsel. (U.S. Const., Sth, 6th, 8th & 14th Amends.; Cal. Const., art. I §§ 7, 15,17, 24.) Post-trial, appellant filed a motion for newtrial asserting among other things, that the circumstances surrounding the late disclosure and cross-examination of John Youngblood affected appellant’s state and federal constitutional rights to confrontation and the effective assistance of counsel under the Sixth Amendment. The motion was denied. (45 CT 11770-11801, 11906; 21A RT 3343-3344, 3349-3352.) On Monday, January 25, 1999, the prosecution disclosed that four of the untimely- disclosed witnesses had been subpoenaed and were present in court and that one of them had made statements to the prosecutor that were different from those which werein the untimely disclosed police reports. John Youngbloodtold the prosecutor he could identify Mora, when he hadpreviously told police he could not identify anyone. Youngbloodalso -70- told the prosecutor he saw the backof the car that had driven away whenpreviously he had told police he had not seen anything. (7RT 1228-1230.) Appellant objected to each of the witnesses being called due to the late disclosure. (7RT 1232.) On Thursday, January 28, 1999, the prosecution sought to call John Youngblood. (1ORT 1621.) Appellant’s defense investigator interviewed Youngblood during a court recess and Youngblood confirmed that he could identify only one of the suspects — co- defendant Mora. However, when Mora’s investigator interviewed Youngblood outside the courtroom just prior to his testimony, Youngblood indicated he would be identifying Rangel instead. This information came as a complete surprise to appellant. Mora’s investigator obtained a six-page handwritten statement from Youngblood, which appellant was precluded from seeing prior to Youngblood’s testimony. Counsel requested the court allow time for Mora’s counsel to copy the statement so that both counsel could review it prior to Youngblood’s testimony. The court refused, stating that counsel had an opportunity to have its investigator interview the witness” and becauseit did not want to inconvenience the witness. Counsel argued, to no avail, that had the prosecution timely disclosed Youngblood, appellant would not be in this situation. (LORT 1622-1625.) Mora’s counsel was forced to read the statement during Youngblood’s * Mora’s counsel had previously complained that when her investigator went out to interview the Youngbloods,they told him that the police had already been out there and told them notto talk to defense investigators because they did not haveto talk to them. (7RT 1231.) -71- direct examination and appellant’s counsel was forced to review it just prior to and during her cross-examination. (1ORT 1624, 1653, 1695.) Both appellants were forced to cross- examine Youngblood without the benefit of any rap sheets on him having been turned over2” (LORT 1652-1653.) Appellant continually objected, arguing that the situation was a denial of Rangel’s constitutional rights. ([ORT 1621-1626, 1651-1654; 45 CT 11773, 11786-11787.) Youngblood identified appellant Rangel as the person on the driver’s side of the victim’s vehicle before the shots were fired. (LORT 1631, 1676.) Appellant complained during cross-examination that she was having trouble focusing her questions because she had just received the statement and muchofit was contradictory to Youngblood’s testimony. (LORT 1695.) B. Standard of Review The Sixth Amendment, and thus the constitutional minimum that must be allowed a criminal defendant before a trial court’s discretion to limit cross-examination adheres, includes the ability to develop and present a defense. (United States v. Muhammad(7th Cir. 1991) 928 F.2d 1461, 1467.) Once the constitutional threshold has been met,thetrial court “retain[s] wide latitude to impose reasonable limits on such cross-examination based on concerns about, amongother things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant.” 30 At the close of the prosecution’s case, the prosecutor told the court that she had run the rap sheet and found a 1975 misdemeanorconviction for carrying a concealed weapon. (12 RT 1893-1894.) -72- 2 ae hee (Delaware v. Van Arsdall (1986) 475 U.S. 673.) Thus, where as here, the issue is not a matter of the court’s discretion in properly limiting cross-examination, but instead the impairmentofthe right to confront witnesses, the Confrontation Clause is violated. (Davis v. Alaska (1974) 415 U.S. 308; People v. Dyer (1988) 45 Cal.3d 26, 48-49; see also People v. Rodriguez (1986) 42 Cal.3d 730, 750-751, fn. 2.) Although the harmless error standard of prejudice usually applies to other Confrontation Clauseerrors, if the right to effective cross-examination is completely abridged, constitutional error exists without the need to show actual prejudice. (Davis v. Alaska, supra, 415 U.S. at pp. 315- 316; Olden v. Kentucky (1988) 488 U.S. 227, 232; Chapmanv. California, supra, 386 USS. at p. 24.) Review ofa trial court’s order denying a motion for new trial is de novo where the case implicates a defendant’s federal constitutional rights to due process and concerns the fundamentalfairness ofthe trial. (People v. Ault (2004) 33 Cal.4th 1250, 1262.) Here, the trial court erred both in refusing to allow appellant a brief recess to review Youngblood’s $1x-page statementprior to cross-examination andlater in denying the motion for new trial. C. Appellant Has the Constitutional Right to Effective Confrontation and Effective Assistance of Counsel. It is axiomatic that a criminal defendant has a fundamental right to confront the witnesses against him. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ -73- 7, 15, 24; Pen. Code, § 686.) It is equally well settled that the right of cross-examination is the primary interest secured by the confrontation guarantee and an essential safeguard of a fair trial. (People v. Brock (1985) 38 Cal.3d 180, 188; Pointer v. Texas (1965) 380 U.S. 400, 405-407; Douglas v. Alabama (1965) 380 U.S. 415, 418-420.) “Cross- examination has been described as ‘the “greatest legal engine ever invented for discovery of the truth.” (People v. Brock, supra, 38 Cal.3d at p. 197, quoting California v. Green (1970) 399 U.S. 149, 158.) The object of the confrontation clause is to “ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding beforethe trier of fact.” (Maryland v. Craig (1990) 497 U.S. 836, 845.) The right to confrontation, which is secured for defendants in state as well as federal criminal proceedings, “means more than being allowed to confront the witness physically.” (Delaware v. Van Arsdall, supra, 475 U.S. 673.) It instead meansthat a defendant has the right to effective cross-examination. (Davis v. Alaska, supra, 415 U.S. at p. 318, emphasis added.) D. Appellant’s Case Must Be Reversed Since Appellant’s Ability to Effectively Cross-Examine Youngblood Was Impaired by the Trial Court’s Refusal to Allow Counsel Sufficient Time to Prepare. Ordinarily, restrictions imposed on cross-examination violate the Confrontation Clause if they limit relevant testimony and prejudice the defendant. (United States v. Shabani(9th Cir. 1995) 48 F.3d 401, 403.) However, prejudice is measuredin terms of -74- Sen we aie 178 7 ae i ane the particular witness, not in terms of the outcomeofthe trial or whether the error would have affected the jury’s verdict. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680.) Here, however, as in Davis v. Alaska, supra, 415 U.S. 308, appellant was denied the right of effective cross-examination which “would beconstitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” (Brookhart v. Janis (1966) 384 U.S. 1, 3, quoted in Smith v. Illinois (1968) 390 U.S. 129, 131.) Thetrial court’s actions in forcing defense counsel to conduct cross-examination on a witness whose statement had materially changed with no timefor preparation or investigation, prevented him from fully probing the witness’ credibility. John Youngblood had notinitially identified anyone in his statement to police the night of the crimes. After his statement was untimely disclosed and the defense interviewed Youngblood, he changed hisstory to include an identification of co-defendant Mora. It wasin the courthouse hallwayjust prior to his testimony that he changed his story again and stated his intent to identify appellant Rangel instead. Given this surprise and the public policy against trial by ambush,the trial court had a duty to allow counsel a reasonable time to review the new statement and prepare for cross-examination. Instead, the trial court was myopic in its insistence to continue the testimony without a recess. As a consequence, appellant was unable to subject the prosecution’s case to “‘the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings,’” thereby violation not only his right to confrontation and to present a defense but also to -75- due processanda fair trial. (United States v. Vargas (9th Cir. 1991) 933 F.2d 701, 709 (9th Cir. 1991), quoting Maryland v. Craig, supra, 497 U.S. at p. 846.) Appellant’s case should be reversedsince the refusal to grant a brief recess or continuance unfairly affected appellant’s ability to present a defense, specifically affected his ability to effective confrontation of Mr. Youngblood and violated appellant’s rights to a fair guilt and penalty determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art.I, §§ 1,7, 15, 17, 24.) / / -76- IV. APPELLANT’S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED IN ALLOWING THE ADMISSION OF INADMISSIBLE HEARSAY AND [IRRELEVANT AND PREJUDICIAL GANG EVIDENCE THROUGH THE IMPROPER IMPEACHMENT OF LOURDES LOPEZ IN VIOLATION OF STATE AND FEDERAL LAW. A. Introduction Reversal is required becausethe trial court admitted inadmissible, irrelevant and prejudicial evidence in violation of Evidence Code sections 210, 352 and 1200 as well as in violation of defendant's state and federal constitutional rights to a fair trial, an impartial jury, confrontation of adverse witnesses, due process of law, and a reliable guilt and penalty determination.*” (U.S. Const Amends. V, VI, VIII, XIV; Cal. Const., art. I, §§ 7, 15, 16, 17, 24; Evid. Code, §§ 352, 1200.) Appellant and co-defendant Mora were each charged with two counts of murder and two counts of attempted robbery. The crimes were not alleged to have been gang- related. During voir dire, the court asked the prosecutor whether there was “any gang evidence that [she would] elicit in this case?” The prosecutor responded: “Notthat I know of.” (2 RT 266.) Based on the prosecutor’s representations, the gang section of the jury questionnaire was deleted and attorneys for both appellant and Moradid not voir dire the potential jurors on their views towards gangs and gang members. However,at least 3 The erroneous admission of the gang-related evidence described below, when coupled with the erroneous admission of the gang-related evidenceat the penalty phase, denied appellant his state and federal constitutional rights to a fair and reliable penalty determination. (See Argument XIII, post.) -77- one seated jurorstill opined that it would make a difference to her with respect to whether one would get the death penalty whethereither of the defendants were gang members. (2 RT 266; 8 RT 1246-1248.) Just prior to opening statements, an Evidence Code section 402 hearing was held regarding the exclusion of any reference to gangs. The court ordered the gang evidence excluded and the prosecutor agreed that she would avoideliciting any information regarding gangs by admonishing her witnesses. (2 RT 358-359.) Throughoutthe trial, the court reminded counsel to avoid any reference to gangs through argumentor testimony.(3 RT 409 [during Paula Beltran’s direct examination]*7; 6 RT 1006-1008 [during Lourdes Lopez direct examination]; 10 RT 1624-1625 [during John Youngblood’s direct examination].) During direct examination of Lopez, the prosecution initially used the transcripts of her two interviews with police to impeach Lopez with her prior inconsistent statements being careful to redact any reference to gangs. Lopez admitted making the inconsistent statements but explained that she made them becauseof police coercion and intimidation. Lopeztestified that police were meanto her, turned the tape on andoff until she said *% During the testimony of the prosecution’s first witness, Paula Beltran, the prosecutorelicited that Beltran told the 911 operator that the two men whom shesaw approachher boyfriend’s vehicle “looked like gang members.” Thetrial court sustained a defense objection and struck the response. (3 RT 409.) -78- coo! thet Ca — sbiee what they wantedherto say, threatened to take her child away and threatened her with perjury. (7 RT 1138-1139, 1141-1146; 8 RT 1238-1239; 8 RT 1269-1270; 1289-1295.) The prosecution and defense not only conducted an extensive examination of Lopez regarding these claims*”, but also examined andelicited denials from Detective Branscombregarding the claims.*” (6 RT 1003-1021; 7 RT 1064-1222; 8 RT 1235-1299; 10 RT 1549-1552, 1606-1619.) However, the prosecutor was additionally allowed to play the tapes for the jury*” ostensibly so Lopez could listen and point out wherethe tapes had been stoppedandstarted. (8 RT 1240, 1242; 12 RT 1847-1848.) The defense first objected on foundational grounds because Lopez had already testified she did not know at what points the tape had been stoppedand started and as a lay witness had no expertise on determining whetherthe tape had indeed been turned on andoffjust by listening to them. Mora’s counsel argued and Rangel’s counsel joined that * Appellant objected that the prosecutor’s questioning of Lopez was improper. At the sidebar conference, the prosecutor defended herself by arguing that Lopez waslying. Defense counsel noted that the prosecutor was talking loud enoughforthe jury to hear and the court told the prosecutor to “keep it down.” (7RT 1133-1136.) 3 Wherethe statements by which the witness is sought to be impeached were the result of improperpolice pressures,“the police certainly should have an opportunity to refute such a charge.” (People v. Underwood (1964) 61 Cal.2d 113, 125, disapproving People v. Perez (1961) 189 Cal.App.2d 526, 534-537.) 38 The jury wasalso giventranscripts of the tapes to follow along with while they were being played, but those were not admitted into evidence for the jury’s use during deliberations. -79- the analysis of the tapes having been turned on and off was a scientific-type of procedure that would have required the tapes to be sent to a lab for a scientific evaluation followed by proper expert opinion testimony. (8 RT 1241-1243.) Defense counsel again objected and argued that muchof the information on the unredacted tapes was not only inadmissible hearsay, but wasirrelevant and prejudicial. Further, counsel argued that the ruling underminedthe selection of the jury panel since the jury was voir dired based upon the gang evidence having been excluded and the prosecutor’s promise notto elicit such evidence. The court agreed that it was not a gang case andthat the evidence was being admitted for a limited purpose, but held that defense counsel madea tactical decision at the beginning oftrial to exclude the gang evidence andthat “these things come out sometimes.” (8 RT 1240-1256.) This purported “limited purpose” of the evidence was never explained to the jury, however. Instead, the court gave a vague and over-inclusive admonishmentand jury instruction failing to cure the error. (See Argument V. E, post; 8 RT 1256-1258.) In sum,the trial court erred in allowing the prosecution to improperly impeach Lourdes Lopez by playing her unredacted tape-recorded statements to police for the jury. The playing of the tapes contained inadmissible hearsay, improper character evidence, resulted in prejudicial and previously excluded gang evidence being heard bythe jury and -80- = a was cumulative to impeachment evidence previously presented2® As argued below, none of these errors were cured by an effective admonition or jury instruction. (8 RT 1240- 1258.) B. Standard of Review This Court reviewsany ruling by a trial court on the admissibility of evidence for an abuse of discretion. (People v. Waidla, supra, 22 Cal.4th at p. 724.) This standardis applicable both to a trial court's determination of the relevance of evidenceas well asits determination under Evidence Codesection 352 of whether the evidence's probative value is substantially outweighedbyits prejudicial effect. (See, e.g., People v. DeJesus (1995) 38 Cal.App.4th 1, 32-33.) “The issue of the relevance of evidenceis left to the sound discretion of the trial court, and the exercise of that discretion will not be reversed absent a showing of abuse. [Citations.] That discretion is only abused wherethere is a clear showing thetrial court exceeded the bounds of reason,all of the circumstances being considered. [Citations.]” ([bid.; People v. Cudjo (1993) 6 Cal.4th 585, 609.) The abuse of discretion standard applies equally whenthe issue is the admission of gang evidence. (People v. Champion (1995) 9 Cal.4th 879, 922; People v. Sandoval (1992) 4 Cal.4th 155, 175.) *6 The tapes contained inferences that the crimes were gang-related; that both Rangel and Mora were gang members; that Morahad a propensity for violence; and that Mora had recently been in jail. -81- The improper admission of hearsay evidenceis reviewed de novo whereit is purely a question of law. (People v. Duarte (2000) 24 Cal.4th 603, 618.) C. The Trial Court Erred When It Allowed the Jury To Hear Two Tape Recorded Statements Which Contained Inadmissible Hearsayas well as Irrelevant and Prejudicial Gang Evidence. Thetrial court erred in allowing the prosecution to “impeach” Lourdes Lopez by playing her unredacted tape-recorded statements to police for the jury. As shown below, the playing of the tapes was wholly unnecessary and irrelevant to the material issuei.e., whether appellant and Mora were guilty of the crimes alleged. The playing of the tapes resulted in prejudicial and otherwise inadmissible evidence being heardby the jury. (8 RT 1240-1258.) The prosecution argued andthetrial court erroneously held that the defense had “opened the door” to the unredacted tapes being admitted, including all the hearsay, bad character evidence and gang references, by cross-examining Lopez regarding the allegations of police coercion. (8 RT 1242-1244, 1247-1248, 1252-1253, 1256.) Pursuant to Evidence Code section 780, subdivision(i), a trial court may admit otherwise inadmissible evidencefor impeachment purposesto prove or disprove the existence or 7 Appellant maintains this evidence was otherwise inadmissible, inter alia, becauseit required an expert testimony for its purported admissible purpose,i.e., to show where the tapes were turned on andoff. (Evid. Code § 801 [Expert testimony is admissible whereit relates to a subjectthat is sufficiently beyond commonexperiencethat the opinion of an expert would assist the trier of fact].) -82- eee sn ct jeer nonexistence of a fact about which a witness hastestified or opened the door. However, this evidenceis still subject to Evidence Code sections 210 and 352 exclusion if found to be irrelevant or more prejudicial than probative. Such should have been thecasehere. Generally, evidence is deemed relevant and thus admissibleif it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.) When it comes to gang evidence, however, the Court requires a higher degree of relevancy than just “any tendency”to prove a disputed fact. Because evidencethat a criminal defendant is a member ofa. .. gang may have a highly inflammatory impact on the jury, trial courts should carefully scrutinize such evidence before admitting it. Such evidence should not be admitted if only tangentially relevant because of the possibility that the jury ‘will improperly infer the defendant has a criminal disposition andis therefore guilty of the offense charged’ [citations omitted.] ...” (People v. Gurule (2002) 28 Cal.4th 557, 653; People v. Cox (1991) 53 Cal.3d 618, 660 [““we have condemnedtheintroduction of evidence of gang membershipif only tangentially relevant, given its highly inflammatory impact.”].) The gang evidence presented in the tapes did not have any tendencyto prove a material disputed fact. The crimes committed in this case were notalleged to be gang related and any evidence of gangs had been excluded for purposesof voir dire andtrial. Further, the gang evidence was more prejudicial than probative of any material facts. Evidence Codesection 352 states that the “court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its -83- admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice.” “[A]dmissible evidence often carries with it a certain amount of prejudice.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) Evidence Code section 352, however, is designed to prevent the admission of evidence having little evidentiary impact, but evoking an emotional bias. (/bid.) Manycourts have recognized that evidence of a criminal defendant's gang membershiporaffiliation can create a risk the jury will improperly base its verdict on an inference that the defendant was criminally disposed. (People v. Williams (1997) 16 Cal.4th 153, 193; People v. Luparello (1986) 187 Cal.App.3d 410, 426.) Evidence of gang affiliation is not admissible to show a defendant's character or criminal disposition. But “[c]ases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidenceis relevant to an issue of motive or intent. [Citations.]” (People v. Funes (1994) 23 Cal.App.4th 1506, 1518, and cases cited therein.) Here, the jury was improperly allowed to hear that: Lourdes Lopez (Mora’s “baby- momma”) wasat a party earlier in the evening where “North County Locos” gang members wereharassing her and her “Tiny Locos” gang-memberfriends, Jose, Jade, Kiki and Dreamerastheyleft in Lopez’ car with her baby daughter; the police thought one of her gang-memberfriends in the car was appellant Rangel; a gang member whoshot “Dreamer” saw her with him and she wasafraid he would come back to the house and -84. wre “shoot it up or something”; she called Mora (aka “Joker”) when she got home to come overin case the other gang-members came back; Mora showedup with appellant (aka “Stranger”) and they went outside; when Lopez heard the shots, she assumedthe other gang-members came by; those same gang-memberfriends that were in her car were also at her house during the shootings; Mora frequently got into fights; and he Mora recently gotten out ofjail. (1 CT 7-9, 13-21, 30-32.) Noneof the above information had a tendency to prove any disputed facts as to whether appellant was guilty of the crimes as charged. The only admissible purpose for which the tapes were admitted wasas evidence of whether Lopez’ statements to police had been coerced. Instead, the tapes injected prejudice into the case by informing the jury that appellant and Mora were gang members andthat the crimes were gang-related. Thus, the trial court abused its discretion when it overruled appellant’s objection and allowed the jurors to hear the unredacted gang-related information in the tapes. (People v. Gurule, supra, 28 Cal.4th at p. 653; People v. Cox, supra, 53 Cal.3d at p. 660; see also Peoplev. Hernandez (2004) 33 Cal.4th 1040, 1049 [“In cases not involving the gang enhancement, we haveheld that evidence of gang membership is potentially prejudicial and should not be admittedif its probative value is minimal.”’].) D. The Admission of the Evidence Was Prejudicial and Was Not Cured By The Court’s Vague and Inadequate Admonishment Regarding the “Limited” Use of the Evidence Nor Its Giving of CALJIC 2.09. The improper admission of the gang evidence described above violated appellant’s -85- federal and state constitutional rights. Although a state court’s evidentiary errors do not, standing alone, violate the federal Constitution, state law errors that rendera trial fundamentally unfair violate the Due Process Clause of the Fourteenth Amendment. (Romanov. Oklahoma (1994) 512 U.S. 1, 12.) That is the case here, where the gang evidence served no legitimate purpose, and where,as described below,the prejudicial effect of the gang evidence wassuchthat it could only have influenced the jurors’ decision by inflaming them to a degree that infected the guilt phase as well as the penalty phase with unfairness. Becausethe defense relied upon the prosecutor’s representations that she would not present any gang evidence duringtrial (2 RT 266; see 3 RT 358) and, based on those representations, did not voir dire the jurors on their views towards gangs and gang members (see 8 RT 1246-1249), this error also violated appellant’s right under the Sixth and Fourteenth Amendmentsto a reliable verdict by an impartial jury. (Morganv.Illinois (1992) 504 U.S. 719, 729 [“part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors.”]; id. at p. 736 [“The risk that. . . Jurors [who were not impartial] may have been empaneledin this case and ‘infected petitioner’s capital sentencing [is] unacceptable’”].) Likewise, because the right to an impartial jury guarantees voir dire that will allow a criminal defendant’s counsel to identify unqualified jurors and raise peremptory challenges (id. at pp. 729-730), this error further violated appellant’s Sixth Amendmentguarantee to the effective assistance of -86- counsel. Here, counsel argued that had. they knownthat gang evidence was going to be admitted they would have handled voir dire differently. Further, at least one seated juror said it would make a difference to her whether the defendants were gang members.(8 RT 1246-1248.) In terms of prejudice, it matters not whetherthis error is assessed as one ofstate or federal law, for test is the “same in substance and effect.” (People v. Gonzalez (2006) 38 Cal.4th 932, 961 & fn. 6; People v. Ashmus, supra, 54 Cal.3d at p. 965.) As described below,the State cannot showthat it is beyond reasonable possibility that this violation of state and federal law could have contributed to the jury’s decision to find appellant guilty in this case. (Chapmanv. California, supra, 386 U.S. 18; People v. Brown (1988) 46 Cal.3d 432, 446-448.) As recognized by this Court, evidence of a defendant’s gangaffiliation can have a highly inflammatory and prejudicial impact on jurors and can create a risk the jury will improperly base its verdict on an inference that the defendant was criminally disposed. (People v. Kennedy (2005) 36 Cal.4th 595, 624; People v. Gurule, supra, 28 Cal.4th at p. 653; People v. Williams, supra, 16 Cal.4th 153, 193.) The Court of Appeal has reached the same conclusion, noting that in Los Angeles County, where this case wastried, just 99 cethe word “gang” “connotes opprobrious implications” and “takes on a sinister meaning[.]” (People v. Albarran (2007) 149 Cal.App.4th 214; People v. Maestas (1993) 20 Cal.App.4th 1482, 1497; People v. Perez (1981) 114 Cal.App.3d 470, 479.) -87- Moreover, no adequate admonishmentorinstruction was given to limit the purpose for which the jury could consider the evidence. Rather, the admonishmentthat was given, allowedthe jury to consider the information on the tape for any purpose whichclarified Lopez’ testimony. The court in explaining that the prosecutor was about the play the taped statements that they were to be given transcripts with whichto follow along,first explained to the jury how to handle any hearsay they may encounterand then explained whythe evidence wasbeingpresented: “T explained to you earlierin this trial about out-of-court statements. That’s hearsay. Things that are being offered for their truth. There may be a couple of instances where statements of other people are includedin part of the question and answerprocess. Those,if it’s hearsay andit’s not something that this witness talked about, then — excuse mefor pointing at you — they are probably things that you are not going to need to consider. The purpose for you hearingthis is to clarify the issues that have come up in the course ofthis witness’ testimony.” (Emphasis added. 8 RT 1248, 1256-1258.) This was hardly an admonishmentatall since it did almost nothing to limit the jury’s consideration of the evidence. Moreover, by the time the court “admonished”the jury, Lopez had already been on the stand for two and a half days. Thus, the jury was free to consider the evidence on the tapes for any purpose which clarified any subject with which Lopez had alreadytestified. The jury waslater instructed with the standard version of CALJIC 2.09 which read: “Certain evidence was admitted for a limited purpose. At the timethis evidence was admitted you were instructed that it could not be considered -88- e s € 8 € 8 € 8 by you for any purposeother than the limited purpose for which it was admitted. Do not consider this evidence for any purpose exceptthe limited purpose for which it was admitted.” (S CT 1105; CALJIC 2.09.) However, the jury was not instructed with CALJIC 2.09 until just prior to deliberations after seven more days of testimony by seven other witnesses. The jury could not possibly have been able to glean from the admonishmentnorinstruction which evidence,ifany, was being admitted for a limited purpose. Further, given the “highly inflammatory impact” of gang evidence (Peoplev. Kennedy, supra, 36 Cal.4th at p. 624), it is the “essence of sophistry and lack of realism” to think that an instruction or admonition to the jurors to limit their consideration of such highly prejudicial evidence could have hadanyrealistic effect. (People v. Gibson (1976) 56 Cal.App.3d 119, 130.) What is worse here,is that neither the admonishment nor the instruction even mentioned that the court was referring to the gang evidence. Thetrial court’s erroneous admission of the tapes made it appear that the instant crimes were gang-related and allowed the jurors to view appellant and Moraas violent gang members that commit murders and exact revenge. The State cannot demonstrate that it is beyond reasonable possibility that the erroneous admissionofthis irrelevant and highly inflammatory evidence could have contributed to at least one juror’s decision to find appellant guilty. Particularly in light of one seated juror having already admitted her bias against gang membersin voir dire. (Chapmanv. California, supra, 386 U.S. at p. 24; People v. Ashmus, supra, 54 Cal.3d at p. 965). Thus appellant’s conviction must be -89- : B o : : b i i : c :-9(- reversed. / H ae fe V. THE TRIAL COURT?’S REFUSAL TO DISMISS JUROR NO.7 AFTER SHE HAD OBTAINED EXTRANEOUS AND OTHERWISE INADMISSABLE INFORMATION REGARDING A PLEA OFFER OF 25 YEARSTO LIFE WITHOUT MAKING AN ADEQUATE INQUIRY VIOLATED APPELLANT?’SSTATE AND FEDERAL CONSTITUTIONAE RIGHTS. A. Introduction Thetrial court erred in refusing appellant’s request to removea juror who had received outside information that appellant had been offered a plea of twenty-five years to life violating appellant’s rights to an impartial jury, a fair trial, due process and a reliable guilt determination. (U. S. Const., Sth, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 24.) On the seconddayoftrial*”’, Juror No. 7 brought to the court’s attention that two days beforehand she was approachedbyone of the defendant’s mothers in the cafeteria. During the lunch break, the womansat across from Juror No. 7 and offered her a cookie, which Juror No. 7 refused. The womansaidthat she hadto be there from 10:00 a.m.to 4:00 p.m. every day for her son who was facing murder charges andthat he had been 39/offered a plea of 25 yearsto life but that she would lose him anywaysince he was facing the death penalty. The woman wenton to complain that she was looking for work °8 Wednesday, January 13, 1999. %° In reality, there was not a formal offer of 25 years to life, however the prosecution had discussed with the defense the possibility of a potential package deal for the defendants to plea to “LWOP”as opposedto proceedingto trial. (4 RT 530, 532.) -9|- but couldn’t continue to do so until this whole ordeal was over with. (4 RT 523-528.) The court questioned Juror No. 7 about whether this interaction would affect her deliberations in either the guilt or penalty phases of the trial. Juror No. 7 responded thatit would not. (4 RT 526-528.) The court did not ask whether Juror No. 7 had shared this information with any of the other jurors nor did it admonishher not to do so during the course of the trial or deliberations. Counsel for Rangel asked the juror why she had not brought the eventto the court’s attention during voir dire since she had the interaction prior to being specifically voir dired by the court and the attorneys. Juror No. 7 responded “I didn’t know she was here for this case.” (4 RT 527-528.) The prosecution asked Juror No. 7 whether she “would be able to disregard the entire conversation,” to which the juror responded in the affirmative. (4 RT 527-528) Juror No. 7 was excused from the court room while the court and attorneys discussed the situation. Counsel for Rangel asked the court to excuse the juror from the case since her knowledge of a plea offer necessarily would conjure up the question of whetherthe defendants were considering the offer because they werein fact guilty. (4 Rt 528-529.) “T have a problem with this juror remaining becauseit indicates to me if she thinks an offer was made,that the defendants may have been considering that offer, which perhaps could point up that they are saying “Well, maybe I did this and I better take this deal.” (4 RT 529.) -93- = Counsel for Morastated that “Your Honor, I believe the juror said she could be fair and impartial” and asked the court to instruct people in the audience not to make statements regarding the case. The court did so and also instructed counselto tell family members not to have any contact with anyone. (4 RT 529-533.). The court declined appellant’s request to excuse the juror and failed to sua sponte further question or admonishthejuroror jury. B. Standard of Review The ultimate determination ofjuror misconductis for the trial court and the decision to dismiss the juror lies within the trial court's discretion. (People v. Osband (1996) 13 Cal.4th 622, 675-676; Pen. Code, § 1089.) A juror’s misconduct creates a rebuttable presumption of prejudice, and reversal is required wherethere is a substantial likelihood one or more jurors were improperly influenced by bias. Un re Hitchings (1993) 6 Cal.4th 97, 118-119.) The trial court’s decision whether to discharge a juror is reviewed for abuse of discretion and will be upheld only where supported by substantial evidence; to warrant discharge, the juror’s bias or other disability must appear in the record as a demonstrable reality. (People v. Holloway (2004) 33 Cal.4th 96, 125; People v. Marshall (1996) 13 Cal.4th 799, 843; People v. Lucas (1995) 12 Cal.4th 415, 489.) The heightened standard of “demonstrable reality’more fully reflects the reviewing court’s obligation to protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased jury than the former substantial evidence test. (People v. Barnwell -93- (2007) 41 Cal.4th 1038, 1051-1053.) The demonstrable reality test entails a more comprehensive and less deferential review that the substantial evidence test. The reviewing court must be confidentthat the trial court’s conclusion is manifestly supported by evidence on whichthe court relied. In other words,it requires a showingthatthetrial court relied on evidence that supported its conclusion that bias was not established. (/bid.) C. Juror Knowledge Of A Plea Offer Of Twenty-Five Years to Life Without An Adequate Inquiry From The Trial Court Or Removal of the Juror Violated Appellant’s Constitutional Rights to A Fair and Impartial Jury. The court's failure to conduct and adequate inquiry or to remove Juror No. 7 from the jury was an abuse of discretion and resulted in a violation of appellant's Fifth Amendmentright to Due Process anda fair trial, his Sixth Amendmentrightto trial by an impartial jury Urvin v. Dowd (1961) 366 U.S. 717, 722; Turner v. Louisiana (1965) 379 U.S. 466, 471-472); his Fourteenth Amendmentright to an impartial penalty jury (Morganv. Illinois, supra, 504 U.S. 719, 729-730; People v. Williams, supra, 16 Cal.4th 635, 666-667); and his Eighth Amendmentguarantee of a reliable capital and penalty determination. (Beck v. Alabama (1980) 447 U.S. 625, 638.) The Sixth Amendment guarantees a criminal defendant the right to an impartial jury. “In essence the right to jury trial guarantees to the criminally accuseda fair trial by a panel of impartial, indifferent jurors. The failure to accord the accused a fair hearing violates even the minimal standards of due process.” Urvin v. Dowd, supra, 366 U.S. at p. -94- 722.) The constitutional right to an impartial jury imposes a duty on each individual juror to maintain his or her impartiality throughout the case Un re Hamilton (1999) 20 Cal.4th 273, 293; People v. Nesler (1997) 16 Cal.4th 561, 578; Dyer v. Calderon (9th Cir. 1998) 151 F.3d 970, 973 (en banc)), and the loss of impartiality at any time during the case requires dismissal of the juror in question. (People v. Keenan (1988) 46 Cal.3d 478, 532- 533; People v. Nesler, supra, 16 Cal.4th at 581-582; People v. Farris (1977) 66 Cal.App.3d 376, 386.) A juror’s misconduct, even when inadvertent, gives rise to a presumption of prejudice. (People v. Nesler, supra, 16 Cal.4th at p. 579.) This lack of impartiality is denominated misconduct, whether or not moral blameto the juror attaches; but in either event, the juror is not, or is no longer, competent to judge the case. Un re Hamilton, supra, 20 Cal.4th at 294-295.) Specifically, the United States Supreme Court has clearly stated that private communications between an outside party and a juror raise Sixth Amendmentconcerns. (See Parker v. Gladden (1966) 385 U.S. 363, 364 (per curiam).) “Private talk, tending to reach the jury by outside influence”is constitutionally suspect becauseit is not subject to “full judicial protection of the defendant’s right to confrontation, of cross-examination, and of counsel.” (/d.) Conversations between jurors and “anyone else on any subject connected with the trial” are forbidden. (People v. Jones (1999) 17 Cal.4th 279, 310, emphasis added.) Juror misconduct occurs whena juror obtains information abouta party or the case that wasnot part of the received evidenceattrial. (People v. Nesler, supra, 16 -95- Cal.4th at p. 578.) Juror misconduct, such as the receipt of information about a party or the case that was not part of the evidencereceivedattrial, leads to a presumption that the defendant was prejudiced thereby and mayestablish juror bias. (People v. Marshall (1990) 50 Cal.3d 907, 949-951; In re Carpenter (1995) 9 Cal.4th 634, 650-655.) "The requirement that a jury's verdict 'must be based upon the evidence developed at the trial’ goes to the fundamentalintegrity ofall that is embracedin the constitutional conceptoftrial by jury.... [4] In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom wherethereis full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." (Turner v. Louisiana, supra, 379 U.S. 466, 472-473, citations and fn. omitted.) As the United States Supreme Court has explained: "Due process meansa jury capable and willing to decide the case solely on the evidence beforeit . ..." (Smith v. Phillips (1982) 455 U.S. 209, 217, quoted in Carpenter, supra, 9 Cal.4th at p. 648; accord, Dyer v. Calderon (9th Cir. 1997) 113 F.3d 927, 935; Hughes v. Borg (9th Cir. 1990) 898 F.2d 695, 700.) Whenjuror misconduct involves the receipt of information about a party or the case from extraneoussources,the verdict will be set aside if there appears a substantial likelihood ofjuror bias either because the material is inherently prejudicial or becauseit waslikely to result in “actual bias.” (Carpenter, supra, 9 Cal.4th at p. 653.) The extraneousinformation that appellants were offered a plea of twenty-five yearsto life, judged objectively, is inherently prejudicial and substantially likely to have -96- aa a som aa ‘ave wee Ee influenced Juror No. 7, as well as any other jurors with whom she mayhavesharedthe information during deliberations. (See Carpenter, supra, 9 Cal.4th at p. 653.) Moreover, even if this court does not find that the “insider” information Juror No. 7 thought she was privy to was not “inherently prejudicial,”it is clear from her comments on her jury questionnaire and during voir dire that this is exactly the type of information that would lead to actual bias on her behalf. During voir dire, the court specifically asked Juror No. 7whether there was “anything you want to bring to myattention,” and she answered “No.” In response to defense questioning she acknowledged that she wrote in her jury questionnaire that: “A person who has noregard for another person’s life shouldn’t use taxpayers’ moneyin prison” and that “once you have been convicted and found guilty beyond a reasonable doubt, sentence(sic) to death, and I think it should be carried out” because “[too] much time is wasted on the criminals.” (2 RT 196-197.) Neither this juror, nor anyone else on the jury should have been privy to anyoffers to plead guilty as they are inadmissibleattrial. (See, Evid. Code § 1153*”; Pen. Code § “0 (AKAprospective juror #3982 or #18, but mistakenly identified on pages 193-194 as #8480) “ “Evidence of a plea of guilty, later withdrawn,or of an offer to plead guilty to the crime charged or to any other crime, made by the defendantin a criminal action is inadmissible in any action or in any proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals.” (Evid. Code § 1153.) -97- 1192.4.) Here, Juror No. 7 was nonetheless privy to this information because of juror tampering. A nonjuror’s “tampering contact or communication with a sitting juror, usually raises a rebuttable ‘presumption’ of prejudice. [Citations.]” (Jn re Hamilton, supra, 20 Cal.4th 273, 295.) Here, “tampering contact” occurred through the improper out-of-court conversation between Juror No. 7 and one of the defendants’ mothers. In that conversation, the mother told Juror No. 7 that one of the defendants “had been offered a plea of 25 to life, — but in either case, she was going to lose out because murder charges — well, charges had beenset up and they wanted to give him the death penalty.” (4RT 524.) The underlying problem with such exposure of jurors to claimsof plea negotiationsis that it suggests a defendant who has made a consciousdecision to “roll the dice” with a trial, and who therefore might “deserve” to be sentenced to death in the event he is found guilty. Such an implication may well suggest to a juror that “the responsibility for determining the appropriateness of the defendant's death rests elsewhere” — namely, with the defendant’s own decision to go totrial, and that the juror consequently need not exercise any great concern over imposing a sentencethat the on which the defendant “gambled”and lost. (See Caldwell v. Mississippi (1985) 472 U.S. 320, 329.) This is particularly true where, as here, the juror admitted feeling that “too “ “The plea so withdrawn maynotbe received in evidence in any criminal, civil, or special action or proceeding of any nature, including before agencies, commissions, boards,or tribunals.” (Pen. Code § 1192.4.) -98- wroe et ORR much time is wasted on the criminals.” (2 RT 196-197.) In Caldwell, the United States Supreme Court reversed a death sentence imposed after the prosecutor made the argumentto the jury that its decision to vote for capital punishment would notreally be the “final” one because such a decision is “automatically reviewable by the Supreme Court.” (/d. at pp. 325-326.) This argument, the Court said, encouragedthe jury to “shift its sense of responsibility” for making the death decision onto a reviewing court in the future. (/d. at p. 330.) Moreover,it did so in a waythat would shift a serious decision onto the shoulders ofan institutional actor that was less capable of making a fair determination becauseit had less access to “intangibles a jury might considerin its sentencing determination.” (/bid.) Here, an analogouserror occurred becauseofthe risk that the jury would shift its sense of responsibility backward onto the defendant for what it may have inaccurately perceived to be a choice of defense strategy. Essentially, this error would have encouraged the jury to punish appellant with death for choosing to “waste” state resources by goingto trial rather than for taking a deal, and it would have doneso onthebasis of purported pretrial discussions that were no concern of the jury. Just as “the fact that review is mandatedis irrelevant to the thought processes required to find that an accused should be denied mercy and sentencedto die,” so it should be equally irrelevant to the jury that the defendant has gonetotrial rather than taking a plea. (See id. at p. 331.) Because of the conversation between oneof the defendant’s mothers and Juror No.7, -99- however, those irrelevant considerations were pushed to the forefront of that juror’s mind. The information was “of a type that would leave an inerasable impression.” (People v. Lambright (1964) 61 Cal.2d 482, 486 [Judgment reversed where innocentjuror misconduct madeit reasonably probable that juror knowledge of inadmissible evidence, i.e., that defendant had previously threatened the victim, affected the result.].) It was extraneous information which, as a matter of law she could not consider, but as a matter of fact, she could not forget. (See Jackson v. Denno (1964) 378 U.S. 368, 388-389 [discussing juror knowledge of co-defendant confession implicating defendant].) Whenthis conversation between the woman and Juror No. 7 wasdisclosed, appellant’s trial counsel argued that Juror No. 7 could not fairly continue to serve on the jury becauseof the possibility that, correctly or not, “she thinks an offer has been made” and that the defendants were “saying [to themselves] that ‘well, maybe I did this and I better take this deal.’ ” (4RT 529.) The conversation, in other words, raised the specter that factually guilty individuals were weighing the oddsof goingto trial versus taking a deal. The court declined to remove Juror No. 7 and failed to further question or 8 In People v. Lambright, the jurors were improperly told by the court that they could read newspaperarticles aboutthe trial during the trial as long as it did not affect their deliberations. The inadmissible information regarding defendantpreviously threatening the victim was discussed in a newspaper article written during the trial. (People v. Lambright, supra, 16 Cal.2d at pp. 486-487.) -100- admonishherorthe rest of the jury panel. (4RT 531.) The trial court conducted an inadequate voir dire of Juror No. 7 in order to determine whetheror not she could discharge her duties as a juror. When a questionarises justifying inquiry into the juror's qualification, the trial court has an obligation to investigate the matter sufficiently to determine whether or not good causeexists to replace that juror. (People v. Keenan, supra, 46 Cal.3d 478, 532; People v. Burgener (1986) 41 Cal.3d 505, 519-520; People v. Hightower (2000) 77 Cal.App.4th 1123, 1142.) Specifically, if the court has reason to believe that a juror is or has become biased for or against a party, then that must be adequately investigated, and because of the constitutional values involved, the failure to conduct an adequate investigation will itself be constitutional error. (Dyer v. Calderon, supra, 151 F.3d 970, 974-975; see also Smith v. Phillips, supra, 455 U.S. 209, 217 ["Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen."].) The court not only has a duty conduct whatever inquiry reasonably necessary to determine the alleged facts, but due process requires “a trial judge be ever watchful to prevent prejudicial occurrences andto determinethe effect of such occurrences when they happen.” (Smith v. Phillips, supra, 455 U.S. at p, 217.) The failure to conduct an adequate investigation will itself be constitutional error. (Dyer v. Calderon, supra, 151 F.3d 970, 974-975; see also Peoplev. Keenan, supra, 46 Cal.3d 478, 532.) -101- Here,the trial court failed in discharging its constitutional obligations. Thetrial court failed to adequately assess the effect of Juror No. 7's conversation with the woman not only on Juror No. 7 but potentially on any other jurors as well. The court did not ask whether Juror No. 7 had shared this information with any of the other jurors nor did it admonishher not to do so during the course ofthe trial or deliberations. The likelihood that this death-qualified juror who communicated such specific views about the cost of incarceration being “wasted on criminals,” sharing the plea offer information with other jurors either prior to or during deliberations is an issue with whichthe trial court should have been concermed. D. Appellant’s Case Must Be Reversed. Appellant was denied his right to an impartial jury, a fair trial, due process and a reliable guilt determination when the court failed to make an adequate inquiry into the misconduct and failed to remove Juror No. 7 on defense requestafter it had learned that Juror No. 7 had obtained extraneous and otherwise inadmissable information regarding a purported rejected plea offer of twenty-five yearsto life. Juror misconduct occurs when a juror obtains information about a party or the case that was not part of the received evidenceattrial. (People v. Nesler, supra, 16 Cal.4th 561,578.) Once misconductis found, the court then considers whether the misconduct wasprejudicial. The applicable standard in California has been set forth by this Court: "[W|hen misconductinvolves the receipt of information from extraneous -102- C 2 eR P e B e e e e e e e v p e r s w e e e e s sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood ofjuror bias. Such bias can appearin two different ways.[citation omitted.] { ‘First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror.’ [citation omitted] ‘Under this standard, a finding of ‘inherently' likely bias is required when, but only when, the extraneous information was so prejudicial in context that its erroneous introductionin thetrial itself would have warranted reversal of the judgment. Application of this ‘inherent prejudice' test obviously depends upon a review ofthe trial record to determine the prejudicial effect of the extraneous information. [citation omitted.] { Second, ‘evenif the extraneous information was not so prejudicial, in and ofitself, as to cause ‘inherent' bias underthefirst test,’ the nature of the misconduct and the ‘totality of the circumstances surrounding the misconduct muststill be examined to determine objectively whethera substantial likelihood of actual bias nonethelessarose.’ [citation omitted.] ‘Under this second,or ‘circumstantial,’ test, the trial record is not a dispositive consideration, but neitheris it irrelevant. All pertinent portions of the entire record, including the trial record, must be considered. "The presumption of prejudice may be rebutted, inter alia, by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual' bias.’” (People v. Danks (2004) 32 Cal.4th 269, 302- 303, citing In re Carpenter, supra, 9 Cal.4th 634, 653-654.) "The judgment must be set aside if the court finds prejudice undereither test. Whether prejudice arose from juror misconduct... is a mixed question of law and fact subject to an appellate court's independent determination.(/d. at 303.) Moreover, a defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; Irvin v. Dowd, supra, 366 U.S. 717, 722; In re Hitchings, supra, 6 Cal.4th 97, 110.) A defendantis "entitled to be tried by 12, not 11, impartial and unprejudiced jurors. -103- "Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.’ [Citations.]" (People v. Nesler, supra, 16 Cal.4th at p.578) Since it is reasonably probable onthe facts of this case that Juror No. 7's knowledge of this information either affected her deliberations or others she may have told, appellant’s conviction must be reversed. // // -104- VI. THE EVIDENCE WASINSUFFICIENT TO CONVICT APPELLANT OF ATTEMPTED ROBBERY, FELONY MURDER BASED UPON ATTEMPTED ROBBERY AND TO SUPPORTA TRUE FINDING ON THE ROBBERY SPECIAL CIRCUMSTANCES. A. Introduction The Information charged appellant in counts one and two with first degree murder (Pen. Code § 187, subd., (a)) and in counts three and four with attempted second degree robbery (Pen. Code § 664/211). It was further alleged that the murders with which appellant was charged in counts one and two were committed with the special circumstancesas they occurred while appellant was engaged in the commission ofthe crime of robbery. (Pen. Code § 190.2, subd., (a)(17).) (2 CT 501-504.) Appellant’s jurors were instructed they could convict appellant of attempted second degree robberyif appellant committed a direct but ineffectual act to take another person’s property from the person or from his immediate presence, by the use of force or fear and against the will of the person, and the act was done with the specific intent to commit the crime of robbery. (CALJIC No. 6.00/9.40; 5 CT 1148-1150; 14 RT 2224- 2226.) The jurors were further instructed that they could convict appellant of first degree felony murderif appellant killed the victim during the attempted commission of robbery if the perpetrator had the specific intent to commit robbery. (CALJIC No. 8.21; 5CT 1136; 14RT 2210.) However, the jurors were not instructed that a felony murderfinding -105- required an independentfelonious purposefor the attempted robbery. The jurors werealso instructed that they could find true the special circumstance that the murder was committed during the commission of the crime of attempted robbery if appellant committed the murder in order to carry out or advance the commission ofthe robbery,but not if the attempted robbery was merely incidental to the commission of the murder. (CALJIC No. 8.81.17; SCT 1147.) The prosecution proceeded on a theory that the murders werein the first degree as they were either committed with malice aforethought (Pen. Code § 187, subd.(a)) or committed during the attempted commission of a robbery (Pen. Code § 189). The prosecution argued that appellant’s display of a gun and his statement “Give me your wallet” constituted a direct but ineffectual act to take the victim’s property by the use of force or fear with the specific intent to commit the crime of robbery. The prosecution theorized that the fact that no property wasactually taken from the victims, showed only that they abandoned the robbery before completing it. (L4RT 2234-2240.) “4 Appellant requested the court instruct the jury with defense special instruction #1 which stated: “To prove the felony murderoffirst degree murder, the prosecution must prove beyond a reasonable doubtthat the attempted robbery was donefor the independent purpose of committing the felony rather than for the purpose of committing the homicide. 4 If the defendant’s primary purpose wasto kill or if he committed the attempted robbery to facilitate or conceal the homicide, the there was no independent felonious purpose. If from all the evidence you have a reasonable doubtthat the defendant committed the attempted robbery for such independent felonious purpose, you must find the defendantnot guilty on the felony murdertheory.” (4CT 1043.) -106- The jurors convicted appellant of two counts of attempted robbery, two counts of first degree murder and found the robbery special circumstances true. (4 CT 1010-1014, 1043; 15 RT 2464-2465.) After which, when arguing for death verdicts in the penalty phase, the prosecution argued the directly inconsistent theory that appellant and co- defendant Mora’s “mission” or “goal” “from the get go” was to murderor “execute”the victims “for fun,” but decided in the middle “let’s get their wallets while we’ re atit.” However, neither defendant took either victim’s wallet or any other personal belongings. (20RT 3198-3201.) On either theory the evidence wasinsufficient to support a finding that an attempted robbery took place. There was no evidenceappellant or the co-defendant intendedto take anything from the victims, nor that they killed the victims with the independent felonious purpose of robbing them. Accordingly, the record at trial does not contain facts necessary to find the essential elements of attempted robbery, felony murder based on robbery or the robbery special circumstancein violation of appellant’s rights to due processand fair trial. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15; Jackson v. Virginia (1979) 443 U.S. 307.) Further, as argued below, permitting appellant’s felony murder convictions and robbery special circumstancesfindings to stand would violate not only Winship’s due processstandard for a criminal conviction, but also would violate the special reliability standards mandated in capital cases by due process and the Eighth Amendment, and -107- California state constitutional analogues. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, §§ 1, 7, 15, 17; Beck v. Alabama, supra, 447 U.S. 625, 637-638; People v. Marshall (1997) 15 Cal.4th 1, 34-35.) B. Standard of Review Both the state and federal constitutions require proof beyond a reasonable doubt of each elementof an offense as a basis for sustaining a judgment. Proof of guilt beyond a reasonable doubtis an essential facet of Fourteenth Amendmentdue process and required for a constitutionally valid conviction. (In re Winship (1970) 397 U.S. 358.) On appeal, the test of whether the evidenceis sufficient to support a conviction is “whethera rational trier of fact could find the defendantguilty beyond a reasonable doubt.” (People v. Holt (1997) 15 Cal.4th 619, 667.) The United State Supreme Court defined the requisite evidence as being sufficient to allow the trier of fact to reach a “subjective state of near certitude of the guilt of the accused[.]” (Jackson v. Virginia, supra, 443 U.S. at p. 315; see also Victor v. Nebraska (1994) 511 U.S. 1, 15.) “The relevant question is whether after viewing the evidencein the light most favorable to the prosecution, any rational trier of fact could have foundtheessential elements of the crime beyond a reasonable doubt.” (/d. at pp. 318-319.) This Court, however,does notlimit its review to the evidence favorable to the respondent. (People v. Miranda (1987) 44 Cal.3d 57, 78.) A reviewing court has a two-fold task: “First, we must resolve the issue in light of the whole record... Second, we mustjudge whether the -108- evidence of each of the essential elements is substantial.” (People v. Brown (1989) 216 Cal.App.3d 596, 600, quoting People v. Barnes (1986) 42 Cal.3d 284, 303.) To satisfy this due process standard and to avoid an affirmance based primarily on speculation, conjecture, guesswork, or supposition, the record must contain substantial evidence of each of the essential elements. (People v. Morris (1988) 46 Cal.3d 1, 21, overruled on other groundsin Jn re Sassounian, supra, 9 Cal.4th 535, 543.) In order for the evidence to be “substantial,” it must be “of ponderable legal significance... reasonable in nature, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) “Evidence which merelyraises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” (People v. Kunkin (1973) 9 Cal.3d 245, 250.) In People v. Morris, supra, this Court stated: Wemayspeculate about any numberof scenarios that may have occurred on the morning in question [when the victim was murdered with no eyewitnesses present]. A reasonable inference, however, ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.[Para.]. ... A finding of fact must be an inference drawn from evidencerather than ... a mere speculation as to probabilities without evidence.’ [Citations.] (Ud. at p. 21; emphasis andellipses in original.) Thetest for the sufficiency of a special circumstancefinding is essentially the same, this Court must view the evidence in the light most favorable to the state and determine whetheranyrationaltrier of fact could have found the essential elements of the -109- allegation beyond a reasonable doubt. (People v. Ochoa (2001) 26 Cal.4th 398, 453-454; People v. Cain (1995) 10 Cal.4th 1, 38 quoting People v. Roland (1992) 4 Cal.4th 238, 271.) C. The Evidence WasInsufficient to Convict Appellant of Attempted Robbery, Felony Murderor Find True the Robbery Special Circumstances, Thus Those Convictions and Findings Must Be Reversed. Asdescribed in the following arguments, the trial evidence waslegally insufficient to sustain appellant’s attempted robbery convictions, and those convictions must be reversed. In the absenceof sufficient evidence of attempted robbery, appellant could not properly be convicted of felony murder. This insufficiency of the evidence requires reversal of the murder convictions because it cannot be ascertained whetherthe jury based its decision to convict appellant of first degree murder on a felony murder theory. And, because the charged robbery-murderspecial circumstance could only be foundtrueif the murders were committed while appellant was engaged in the attempted commission of a robbery (Pen. Code, § 190.2, subd. (a\7)(A)), the true findings on this special circumstance also must be reversed. A criminal conviction premised on insufficient proof of an element of the charged offense violates the due process clauses of both the United States and California Constitutions. (U.S. Const., 5th & 14th Amends.; Jackson v. Virginia, supra, 443 U.S. 307, 316; Cal. Const., art. I, § 15; People v. Rowland (1992) 4 Cal.4th 238, 269.) The -110- lack of sufficient proof for a conviction also violates a defendant’s rights to a fairtrial, trial by jury, effective assistance of counsel, equal protection, and reliable guilt and penalty verdicts in a capital case, as guaranteed bythe Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, and article I, sections 7, 15, and 17 of the California Constitution. 1. The Evidence WasInsufficient to Support the Attempted Robbery Convictions. Appellant’s constitutional rights were violated since the evidence presented was insufficient to convict appellant of attempted robbery. Robberyis defined as “the taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by meansof force or fear.” (Pen. Code § 211.) To obtain a proper attempted robbery conviction, the prosecutor had to prove beyond a reasonable doubt that appellant had the specific intent to permanently deprive, or to aid Morain permanently depriving, Encinas and Urruita of their wallets. (People v. Huggins (2006) 38 Cal.4th 175, 214; People v. Marshall, supra, 15 Cal.4th at p. 34; see also Pen. Code, § 21 [attempt to commit a crime requires specific intent to perpetrate the crime].) The prosecutor’s evidence of an attempted robbery came from Fidel Gregorio’s testimony that appellant told Encinas “Check yourself, check yourself, give me your wallet” and that Morasimilarly told Urrutia to give Morahis wallet. (4 RT 634, 636-637, 699, 5 RT 701.) The prosecutor characterized these statements as her “undisputed” evidence of an -111- attempted robbery. (14 RT 2240.) A demand for someone’s wallet may well, in the appropriate case, indicate an intent to permanently deprive that person of his property. However, the test for sufficient evidence that the defendantis guilty beyond a reasonable doubt looksat al/ the evidence presentedattrial, and is not limited to “isolated bits of evidence selected by the [prosecutor].” (People v. Johnson, supra, 26 Cal.3d at p. 577, citing People v. Bassett (1968) 69 Cal.2d 122.) As stated in Johnson, “it is not enough for the [prosecutor] simply to point to ‘some’ evidence supporting the finding, for [not all] evidence remains substantial in the light of other facts.” (/bid.) That certainly is the case here, where the “all the facts and circumstances surrounding the crime” (People v. Lewis (2001) 25 Cal.4th 610, 643, citing Pen. Code, § 21, subd.(a) [“intent or intention is manifested by the circumstances connected with the offense”]) show that neither appellant nor Mora intended to actually take the victims’ wallets or belongings. Where the most tenable inference that can be drawn from the wholerecord is that the demands for money were used as a pretext for some other objective, the evidence is insufficient to establish an intent to steal. (People v. Thompson (1980) 27 Cal.3d 303, 323-324 [no intent to steal found where defendant with intent to kill demanded moneybutfailed to takeit.) Here, the witness testimony showedthat appellant and Mora approached Encinas and Urrutia on the sidewalk late at night while the two menandtheir girlfriends were walking to their cars. Appellant said to Encinas: “Do you want to go to sleep?” Encinas -112- did not respond. Appellant then said: “ Why are you quiet, I asked you a question.” As Encinas continued to his car, appellant followed him to the driver’s side while Mora followed Urrutia to the passenger side. (3RT 406- 407, 438, 491.) Appellant then displayed his gun and told Encinas, “Check yourself. Check yourself. Give me your wallet.” (4 RT 632-633.) Mora then told Urrutia, “Give me your wallet.” (4 RT 636-637, 5 RT 701.) However, immediately after appellant’s statement, and before Encinas could even reach for his wallet, appellant shot Encinas in the chest. (4 RT 635-636.) Mora then shot Urruita within “seconds”of his statement without giving Urrutia any opportunity whatsoever to hand over his wallet. (5 RT 702; 4 RT 637.) Appellant immediately fired two moreshots, then he and Mora ran away, leaving Encinas and Urrutia in the vehicle with their wallets. (4 RT 638-639, 9 RT 1432, 1452-1453.) Appellant and Mora ran acrossthe street into Lourdes Lopez’ house andstarted bragging that they “fucking blew their heads off” and appellant allegedly stated: “I’d have shot them more, but the damnbullet got stuck.” (6RT 849, 975.) On this evidence, the only argument that the prosecutor could make wasthat “for whateverreason”the shooters did not actually take the victims’ wallets (14 RT 2238) and “for whatever reason, maybe they got scared, maybe - - whatever reason of why they didn’t actually take money. Maybe a light went on. Maybe someone opened their door. Maybe someonelike Mr. Youngblood waslooking out his window. Theyleft.” (15 RT 2431.) -113- The prosecutor’s arguments were nothing more than “speculation, supposition, surmise, conjecture, or guess work” (People v. Morris, supra, 46 Cal.3d at p. 21), and on the facts and circumstances of this crime, neither those arguments nor the testimony presented constituted evidence sufficient to allow the trier of fact to reach a “subjective state of near certitude” (Jackson v. Virginia, supra, 443 U.S. at p. 315) that appellant or Moraacted with the specific intent to permanently deprive Encinas and Urrutia of their wallets or other belongings. Rather, the most tenable inference that can be drawn from the whole record is that the demandsfor the wallets were used as a pretext for some other objective. Since even the prosecution agrees that the perpetrators had at least a coequal — if not preeminent — intent to kill from the beginning ofthis incident, it would seem that the demandsfor the wallets were simply a ruse to obtain the victims’ cooperation until they could be maneuveredinto a vulnerable position so that the shootings could easily be carried out. (People v. Thompson, supra, 27 Cal.3d at p. 323.) Therefore, appellant’s attempted robbery convictions mustbereversed. 2. The Evidence wasInsufficient to Support a Felony Murder Conviction Based on Robbery or a True Finding on the Robbery Special Circumstance Allegation. First degree felony murder based upon robbery mayonly be foundtrueif the murder was committed during the commission of the robbery. The perpetrator must have had the specific intent and independent felonious purpose to commit the robbery orto aid and abet its commission before or during the fatal assault. (People v. Lewis, supra, 25 -114- Cal.4th 610, 642; People v. Burton (1971) 6 Cal.3d 375, 384-388.) In other words, felony-murder may not be found true where the purpose ofthe criminalactis to kill or assault. (People v. Garrison (1989) 47 Cal.3d 746, 778.) The purpose ofthe felony- murder doctrine is to deter negligent, accidental, and reckless killings during the commission of a felony, and this purpose can only be realized when the defendanthas the intent to commit the underlying felony. For example, the felony-murder doctrine does not apply in a situation where a defendant commits a robberyin the perpetration of a murder. In such situation, the murderis not considered to occur within the course of the robbery because the defendant’s intent is not to steal but to kill and the robbery is merely incidental to the murder. (People v. Sears, supra, 2 Cal.3d 180, 188; People v. Wilson (1969) 1 Cal.3d 431, 444; People v. McLead (1990) 225 Cal-App.3d 906, 915.) Similarly, “[a] robbery-murder special circumstance may only be foundtrue if the murder was committed while the defendant was engaged in ‘the commissionof, or the attempted commission of’ a robbery.” (People v. Marshall, supra, 15 Cal.4th at pp. 40- 41, quoting Pen. Code, § 190.2, subd. (a)(17)(A).) “[T]he felony-based special circumstancesreflect[] a legislative belief that it [i]s appropriate to make those who kill[] “to advance an independentfelonious purpose’ death eligible, but . . . this goal [i]s not 999achieved whenthefelony[i]s “merely incidental to the murder[.]’” (People v. Horning (2004) 34 Cal.4th 871, 907, quoting People v. Green (1980) 27 Cal.3d 1, 61.) Thus, “if the felony is merely incidental to achieving the murder- the murder being the defendant’s -115- primary purpose - then the special circumstanceis not present[.]” (People v. Navarette (2003) 30 Cal.4th 458, 505.) In other words: A murderis not committed during a robbery within the meaning of the [robbery-murderspecial circumstance] statute unless the accused haskilled ...in order to advance an independentfelonious purpose[.| A special circumstance allegation of murder committed during a robbery has not been established where the accused’s primary criminalgoalis not to steal but to kill and the robbery is merely incidental to the murder[.] (People v. Morris, supra, 46 Cal.3d at p. 21, quoting People v. Thompson, supra, 27 Cal.3d 303, 322, italics in original, internal quotation marksandcitation omitted; see also People v. Marshall, supra, 15 Cal.4th at p. 41 [“The robbery-murder special circumstance applies to a murderin the commission of a robbery, not to a robbery committed in the course of a murder.” ].) Here, even if appellant had committed an attempted robbery, there was no evidence that reasonably suggested that the killings were committed in order to carry out or advancethat attempt. The prosecutor herself contended that the evidence showed appellant’s and Mora’s primary goal was to murder, not rob, Encinas and Urrutia. (20 RT 3199-3200.) Paradoxically, the prosecutor’s guilt phase argument wasthat appellant and Mora decided that if they killed Encinas and Urrutia, they then could just reach into the 4- Runner, grab the wallets, and thereby prevent Encinas and Urrutia from calling 911 and -116- identifying them.*” (15 RT 2431.) Once again, however, the prosecutor’s argument wasspeculation and conjecture, and entirely unsupported by the facts and circumstances surrounding the crime. There was testimony that appellant said to Encinas on the street, “Do you wantto go to sleep?” Neither appellant nor Mora gave either victim time to hand overtheir wallets before shooting them,nor did either one “reach in andgetit.” Appellant was heard bragging about the killings immediately thereafter, and no mention of robbery was made. The crimes depicted by the evidence and embraced bythe prosecution in the penalty phase were murders, not robberies. As this Court noted in People v. Thompson: “the jurors whotried this case undoubtedly were sorely tested when they realized they would have to return a “not true” finding asto all the special circumstance allegations if they determined appellant was primarily a killer instead of a thief. But constitutional protections, including the requirement of proof beyond a reasonable doubt, are not limited to those defendants who are morally blameless. [Citation] No matter how blameworthy in other respects, this appellant is entitled to the same dispassionate review of the sufficiency of the evidence as to the special circumstancesfindings as a civil litigant is allowed upon appeal from an adverse judgment for money. Indeed, in a case such as this, where moral equities weigh so heavily against an individual, an appellate court has a special duty to apply its objectivity.” (People v. Thompson, supra, 27 Cal.3d at 325.) *° The prosecutor argued: “The murder was committed in orderto carry outor - - that’s an “or” - - advance the commission of the crime of attempted robbery,or to facilitate the escape or to avoid detection. [§]] Meaning, hey, you know, whatif you shoot - - if you ask someonefortheir wallet, “Oh, man,let’s just shoot them. I can getit myself. I can reach in and get it. [§]] And then you know what? They don’t run after you. They don’t call 9-1-1. They can’t id. you later. What a great idea. [§]] Meaning attempted robbery, not merely incidental to the . .. commission of the murder.” (15 RT 2431.) -117- A rationaltrier of fact could not have concluded beyond a reasonable doubtthat appellant and Morakilled Encinas and Urrutia during the course of a robbery or killed them in order to advance the independent, felonious purpose of committing a robbery. Because the evidence was woefully insufficient to show that Encinas and Urrutia were killed in order to advance the independent felonious purpose of robbery, the felony murder convictions and the robbery-murderspecial-circumstance findings must be reversed. (/bid.) 3. Arguendo,If the Evidence Presented Is Deemed Sufficient for a Finding of Attempted Robbery or Felony Murder Based upon Robberyin a Non-capital Case, It Is Still Not Sufficient to Sustain a Death Verdict. The evidence presented in this trial cannot satisfy the heightened-reliability requirement mandated in capital cases by the Eighth and Fourteenth Amendments andthe analogousprovisions of the California Constitution. Even if the evidence were sufficient, in a noncapital context, to support the attempted robbery convictions and a sentence of imprisonment (whichit is not), the evidence of attempted robbery is too weak and uncertain to serve as a constitutionally valid basis for establishing death-eligibility and turning a noncapital homicide into capital murder. Thus, permitting appellant’s murder conviction and robbery special circumstance finding to stand would violate not only Winship’s due processstandard for a criminal conviction, but also would violate the special reliability standards mandatedin capital cases by due process and the Eighth -118- Amendment, and California state constitutional analogues. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, §§ 1, 7, 15, 17; Beck v. Alabama, supra, 447 U.S. 625, 637- 638; People v. Marshall, supra, 15 Cal.4th 1, 34-35.) D. The Attempted Robbery and First Degree Murder Convictions Must be Reversed and the Death Verdict Must Be Set Aside Since There Was Insufficient Evidence Presented to Support the Convictions and Robbery Special Circumstance Findings. Appellant has shown that even when the evidence is viewed in a light most favorable to the judgment, the facts supporting the prosecution’s theories were insufficient to support the verdicts and true findings. On anyofthe alternative theories relied upon by the prosecution (14RT 2235-2240, I5RT 2431, 20RT 3198-3200), the evidence wasfactually insufficient to support the convictions for attempted robbery and felony murder based upon robberyas well as to support the jury’s finding that the robbery-murderspecial circumstance wastrue. Appellant could be convicted of attempted robbery andfirst degree felony murder only if he intended to actually take Encinas’ and Urrutia’s wallets, thereby satisfying the specific intent to permanently deprive element of crime of robbery. (People v. Pollack (2005) 32 Cal.4th 1153, 1175 [felony murder in the commission of a robbery “requires specific intent to steal the victim’s property, which includes a specific intent to permanently deprive the victim of the property.”].) Moreover, even if there was sufficient evidence of specific intent for robbery, that is not enough for felony murderor the -119- robbery murderspecial circumstances. Both statutes require that the jury find that the murder was committed during the commission of the attempted robbery, not vice versa as the evidence, at most, showedin this case. (Pen. Code §§ 189, 190.2(a)(17(A); People v. Green, supra, 27 Cal.3d 1, 59; People v.Sears, supra, 2 Cal.3d at p. 188.) 1. The Attempted Robbery Convictions Must be Reversed and Cannot be Retried. Since the evidence wasinsufficient as a matter of law to support the attempted robbery convictions, the convictions must be reversed and further proceedings are barred by the double jeopardy clause. (U.S. Const., 5th Amend.; Cal. Const., art. I, §§ 15, 24; People v. Hill (1998) 17 Cal.4th 800, 848; People v. Pierce (1979) 24 Cal.3d 199, 209- 210; Burks v. United States (1978) 437 U.S. 1.) 2. The Murder Convictions Must Be Reversed. Since there wasinsufficient evidence to support one of the prosecution’s two theories of first degree murder,i.e., felony murder,*” the murder convictions must be reversed. In People v. Green, supra, 27 Cal.3d 1, this Court stated the “settled and clear” rule on appeal that “when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of “© The jury returned generalverdicts of first degree murderafter the case was presented on alternate theories of premeditated murder and felony murder during the commission of an attempted robbery.” (4 CT 1015-1016; 5 CT 1134-1137.) -120- a s e5 85 guilt rested, the conviction cannot stand.” (/d. at p. 69.) “The same rule applies when the defect in the alternate theory is not legal but factual, i.e., when the reviewing court holds the evidence insufficient to support the conviction on that ground.” (/d. at p. 70.) In People v. Guiton, supra, 4 Cal.4th 1116, the Court relied on Griffin v. United States (1991) 502 U.S. 46, and created the following exception to the Green rule: “If the inadequacyof proofis purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenevera valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (People v. Guiton, supra, 4 Cal.4th at p. 1129.) The Court in Guiton based its holding on the following reasoning: In analyzing the prejudicial effect of error, ...an appellate court does not assume an unreasonable jury. Such an assumption would makeit virtually impossible to ever find error harmless. An appellate court necessarily operates on the assumptionthat the jury has acted reasonably, unless the record indicates otherwise. [4] .. . Thus, if there are two possible grounds for the jury’s verdict, one unreasonable and the other reasonable, we will assume, absent a contrary indication in the record, that the jury based its verdict on the reasonable ground. (Ud. at p. 1127, italics added.) According to the Court, “[t]he jury [i]s as well equipped as any court to analyze the evidence andto reach a rational conclusion. The jurors’ ‘ownintelligence and expertise will save them from’ the error of giving them ‘the option of relying upon a factually inadequate theory.’” (/d. at p. 1131, quoting Griffin v. United States, supra, 502 U.S. at p. -121- 59.) Thus, the Guiton exception is based on the assumption that the jury has acted reasonably anddid not base its finding on insufficient evidence. This assumption cannot apply here where,absent sufficient evidence, the record showsthat the jury acted unreasonably in convicting appellant of attempted robbery, and in finding true the robbery-murderspecial circumstance. Thus, even assuming that the evidence was sufficient to support an alternative theory of premeditated murder, the Guiton exception does not apply and the first degree murder verdicts should be reversed. (People v. Green, supra, 27 Cal.3d at p. 70; see also In re Winship, supra, 397 U.S. 358, 364 [conviction based on insufficient evidence violates defendant’s constitutional right to due process of law]; Sandstrom v. Montana (1979) 442 U.S. 510, 526 [“‘[It has long been settled that when a Caseis submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction be set aside’”]; accord, Martinez v. Garcia (9th Cir. 2004) 379 F.3d 1034, 1035-1036, 1041; Keating v. Hood (9th Cir. 1999) 191 F.3d 1053, 1062.) Moreover, even under Guiton, appellant’s murder convictions must be reversed becausethere is “an affirmative indication in the record that the verdict[s] actually did rest on the inadequate ground.” (People v. Guiton, supra, 4 Cal.4th at p. 1129.) The prosecution’s theory wasthat appellant was guilty of the first degree murder of Antonio Urrutia based on an aiding and abetting theory. (14 RT 2267-2273.) While the jurors -122- were instructed on both premeditated murder and felony murder in the attempted commission of a robbery (4 CT 1134-1136), they specifically were instructed that in order to find appellant guilty as an aider and abettor to Urrutia’s murder, they had to find appellant’s intent was to aid Mora in robbing Urrutia.(SCT 1128, 1137.) Thus,the jury’s verdict against appellant on Count 2 wasnecessarily based on a felony murder theory, as the jurors were expressly told they could only find appellant guilty of aiding and abetting Urrutia’s murder (which wasthe prosecution’s theory) if they found (as they erroneously did) that appellant was aiding and abetting an attempted robbery. Furthermore,the jurors’ erroneousverdicts finding appellant guilty on the attempted robbery charges, and finding the robbery special circumstanceallegation true, must be viewed asan additional indication that they found appellant guilty of first degree murder on a felony murder theory. (See People v. Marshall, supra, 15 Cal.4th at p. 38 [true finding on allegation that murder was committed in course of attempted rape “necessarily” meant that jury found defendant guilty of felony-murderon that theory]; People v. Kelly (1992) 1 Cal.4th 495, 531 [because jury found rape-murderspecial circumstance, it necessarily relied on rape-murdertheory of first degree murder]; People “7 While the jury was instructed that they did not need to unanimously agreeas to whichoriginally contemplated crime appellant aided and abetted, so long as they were satisfied beyond a reasonable doubt that he aided and abetted “an identified and defined target crime and that the crime of murder wasa natural and probable consequenceofthat target crime,” the only target crime identified in the “natural and probable consequences” instruction was attempted robbery. (SCT 1128.) -123- v. Hernandez (1988) 47 Cal.3d 315, 351 [Court can tell that general verdict of guilt rested on rape and sodomy felony-murder because jury foundtrue the rape and sodomyspecial circumstances].) While the jury received instruction on malice aforethought, deliberation, and premeditation, there is nothing in the record that would similarly indicate that the jury found any such facts. Becausethere is an affirmative indication in the record that the first degree murder verdicts rested on the inadequate felony murder theory, those verdicts must be reversed. 3. The Robbery Special Circumstance Findings Must Be Reversed and the Death Verdict Must Be Set Aside. As argued above,there was insufficient evidence presented to sustain the true findings on the robbery special circumstances, therefore they must be reversed. (Peoplev. Thompson, supra, 27 Cal.3d at 325.) Further, because it cannot be shown that the jurors could havereturned a death verdict absent the attempted robbery, felony murder and robbery special circumstances, the death verdict must also be reversed. (Brown v. Sanders (2006) 546 U.S. 212.) Appellant was charged with two special circumstance allegations making him eligible for the death penalty: (1) multiple murder; and (2) robbery felony murder. As noted above, appellant wasalleged to have aided and abetted Urrutia’s murder under a felony murder theory that appellant’s intent was to aid Mora in robbing Urrutia. (SCT 1128, 1137.) However, as argued in Argument, VI, post, under the facts of this case and -124- the instructions given to appellant’s jury, it cannot be determined beyond a reasonable doubt whether appellant’s jury based its true finding on the multiple murderspecial circumstance ona finding that appellant acted with the intent to kill Antonio Urrutia, or on the erroneous premise that appellant, with reckless indifference to humanlife, intended to aid Morain robbing Urrutia. Thus, the multiple murder special circumstance must also be reversed and the death penalty set aside. /I // -125- VII. THE JURY’S TRUE FINDING ON THE MULTIPLE MURDERSPECIAL CIRCUMSTANCE MUST BE REVERSED SINCE SUBSTANTIAL EVIDENCE WASNOT PRESENTED TO SUPPORT IT AND BECAUSE THE JURY MOST LIKELY RELIED UPON AN INVALID THEORYIN FINDING THE CIRCUMSTANCE TRUE. A. Introduction Appellant argued in his Motion to Modify the Verdict of Death that the evidence presented at trial was insufficient to support the multiple murder special circumstance. Thetrial court erred in denying the motion and imposing a sentence of death for the reasonsset forth below. (45 CT 11796-11797; 21 RT 3340-3343.) As argued in Argument V, ante, the jury’s two attempted robbery murderspecial circumstance findings must be reversed becauseof insufficiency of the evidence. Absent these special circumstance findings, appellant’s eligibility for the death penalty rests solely on the jury’s multiple-murder special circumstance finding. Because the prosecution’s theoryat trial was that appellant was guilty of killing Urrutia on an aiding and abetting theory (see 14 RT 2267-2273), the multiple murder special circumstance could be found true only if appellant acted with the intent to kill Urrutia. (Pen. Code, § 190.2, subd. (c);*’ People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150 [“intentto kill *8 Penal Code section 190.2, subdivision (c), reads: Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands,induces, solicits, requests, or assists any actor in the commission of murderin the first degree shall be punished by death or imprisonmentin the state prison for life without the possibility of parole -126- e s £ 8 #8 38 € 8 at, cou is not an element of the multiple-murder special circumstance; but when the defendantis an aider and abetter rather than the actual killer, intent must be proved.”]; People v. Williams, supra, 16 Cal.4th 635.) Under the facts of this case and the instructions given to appellant’s jury, it cannot be determined beyond a reasonable doubt whether appellant’s jury basedits true finding on the multiple murder special circumstance on a finding that appellant acted with the intent to kill Antonio Urrutia, or on the erroneous premise that appellant, with reckless indifference to humanlife, intended to aid Mora in robbing Urrutia. The insufficiency of the evidence violated appellant’s rights to due process,a fair trial, and a reliable penalty determination underthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and sections 1, 7, 12, 15, 16 and 17 of article I of the California Constitution. Thus, the multiple murder special circumstance and death judgment mustbe reversed. B. Standard of Review Both the state and federal constitutions require proof beyond a reasonable doubt of each elementof an offenseas a basis for sustaining a judgment. Proof of guilt beyond a reasonable doubtis an essential facet of Fourteenth Amendmentdueprocessand required for a constitutionally valid conviction. Un re Winship, supra, 397 U.S. 358.) On appeal, if one or more of the special circumstances enumerated in subdivision (a) has been foundto be true under Section 190.4. -127- the test of whether the evidenceis sufficient to support a conviction is “whethera rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Holt, supra, 15 Cal.4th 619, 667.) “The relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have foundthe essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S. at pp. 318-319.) A reviewing court has a two-fold task: “First, we must resolve the issue in light of the whole record... Second, we must judge whether the evidence of each of the essential elements is substantial.” (People v. Brown, supra, 216 Cal.App.3d 596, 600 quoting People v. Barnes, supra, 42 Cal.3d 284, 303.) To satisfy this due process standard and to avoid an affirmance based primarily on speculation, conjecture, guesswork, or supposition, the record must contain substantial evidence of each of the essential elements. (People v. Morris, supra, 46 Cal.3d 1, 21, overruled on other groundsin Jn re Sassounian, supra, 9 Cal.4th 535, 543.) The test for the sufficiency of a special circumstance finding is essentially the same; this Court must view the evidence in the light most favorable to the state and determine whetheranyrational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt. (People v. Cain, supra, 10 Cal.4th at p. 38, quoting People v. Roland, supra, 4 Cal.4th 238, 271.) -128- wae pee wee “— C. The Multiple Murder Special Circumstance Must Be Reversed Since There WasInsufficient Evidence Presented That Rangel Intended to Kill Urrutia and Because the Jury Was Instructed It Could Find The Circumstance True Without Finding an Intent to Kill. In People v. Williams, supra, 16 Cal.4th at 687, 689, the trial court failed to instruct the jury that the multiple murder special circumstance required them to find that the defendant acted with the intent to kill. 7bid.) The state argued that the guilt jury nevertheless must have found that the defendant had the requisite intent to kill whenit found him guilty of aiding and abetting four first degree murders because the prosecution’s only theoryat trial was that the defendant shared the actual killer’s intent to kill the victims. (/d. at p. 690.) This Court rejected that argument, noting it could not be certain that the jury found that the defendant harbored anintent to kill because the jury also was instructed onthe alternative theory of aider and abettor liability under the “natural and probable consequences” doctrine, which did not require that the defendant share the perpetrator’s intent to kill.bid.) Because this Court could not “conclude beyond a reasonable doubt”that the jury in determining the truth of the multiple murder special circumstance necessarily found that the defendant acted with the intent to kill (Ud. at p. 689, citing Chapman v. California, supra, 386 U.S. 18, 24), the Court reversed the special circumstance finding and the death sentence. (/d. at p. 690.) Here, while the jurors were generally instructed on the intent to kill requirement for a true finding on the special circumstancesalleged, they a/so were allowed the option -129- of convicting appellant of the multiple murder circumstance byfinding that, “with reckless indifference to human life and as a major participant,” he intended to aid Morain attempting to rob Urrutia.” Moreover,the specific instruction regarding the multiple murderspecial circumstance did not contain any reference to an intent to kill requirement. That instruction simply instructed the jury that if it found that defendant had been *” The jury wasinstructed that: If you find [a] defendant in this case guilty of murderof the first degree, you must then determineif [one or moreof] the following special circumstance[s]: [are] true or not true: (1) multiple murders, (2) murder during an attempted robbery. 4 The People have the burden of proving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstanceis true, you mustfind it to be not true. § [[Unless an intent to kill is an element of a special circumstance,if] you are satisfied beyond a reasonable doubt that the defendantactually killed a human being, you need not find that the defendant intended to kill in orderto find the special circumstanceto be true.] § [If you find that a defendant was not the actual killer of a human being,[or if you are unable to decide whether a defendant was the actual killer or [an aider and abettor] you cannotfind the special circumstance to be true [as to that defendant] unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill [aided,]| [abetted,| [counseled,] [commanded,| [induced,] [solicited,] [requested,] [or] [assisted] in the commission of the murderin thefirst degree][.][, or with reckless indifference to humanlife and as a majorparticipant, [aided,] [abetted,] [counseled,] [commanded,] [induced,] [solicited,] [requested,] [or] [assisted] in the commission of the crime of attempted robbery whichresulted in the death of a human being. § [A defendant acts with reckless indifference to human life when that defendant knowsoris aware that [his] acts involve a graverisk of death to an innocent human being.] {| [You must decide separately the existence or nonexistence of each special circumstance alleged in this case [as to as to each of the defendants]. If you cannotagree as to all of the special circumstances, but can agree as to one [or more of them], you must makeyourfinding as to the one [or more] upon which you do agree.] § In order to find a special circumstance alleged in this case to be true or untrue, you must agree unanimously. §] You will state your special finding as to whetherthis special circumstance is or is not true on the form that will be supplied. (CALJIC 8.80.1 (1997 Revision)[Post June 5, 1990 Special Circumstances — Introductory (Pen. Code § 190.2)]; 5RT 1144- 1145; 14 RT 2219-2222). -130- convicted in this case of more than one offense of murderin the first or second degree,it could find the multiple-murder special-circumstanceallegation to be true.” This was error since intent to kill is required for the multiple murder special circumstance in aider and abettor situations and becausethe reckless indifference exception to the intent to kill requirement applies only to the felony murderspecial circumstance. (Pen. Code, § 190.2, subd. (d).)2” (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 298, overruled on other groundsin Collins v. Youngblood (1990) 497 U.S. 37, 42-52; see also Peoplev. Anderson, supra, 43 Cal.3d at pp. 1149-1150.) Asin Williams, with respect to the murder of Urrutia, appellant’s jurors were instructed on aider and abettorliability under the “natural and probable consequences” °° The jury was instructed: “To find the special circumstance, referred to in these instructions as multiple murder convictions,is true, it must be proved: § [A] defendant has in this case been convicted of at least one crime of murder ofthe first degree and one or more crimes of murderofthe first or second degree. 8.81.3 [Special Circumstances- Multiple Murder Convictions (Pen. Code § 1902.(a)(1))]; 5 CT 1146; 14 RT 2222). °! Penal Code section 190.2, subdivision (d), reads: Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to humanlife and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and whois found guilty of murderin the first degree therefor, shall be punished by death or imprisonmentin the state prison for life without the possibility of parole if a special circumstance enumeratedin paragraph (17) of subdivision (a) has been found to be true under Section 190.4. -131- doctrine, which did not require that appellant act with the intent to kill Urrutia.°” Further, the jury was instructed they could find appellant guilty as an aider and abettorto first degree felony-murderin the absence of anintent to kill.” Thus, the jury’s verdictfinding appellant guilty of murdering Urrutia appears to have necessarily been based on a felony °? The jury wasinstructed: “One whoaids ans abets [another] in the commission of a crime[or crimes] is not only guilty of [those crimes], but is also guilty of any other crime committed by a principle whichis a natural and probable consequenceof the crime[s] originally aided and abetted. § In order to find defendant guilty of the crime[s] of Murder,[as charged in Count[s] 1 & 2], you mustbe satisfied beyond a reasonable doubt that: § 1. The [crimes] of attempted robbery [were] committed; { 2. That the defendant aided and abetted [those] crime[s]; 4 3. That a co-principal in that crime committed the crime[s][ of Murder; and § 4. The crime[s] of Murder [were] a natural and probable consequence of the commission of the crime[s] of attempted robbery. § [You are not required to unanimously agreeas to which originally contemplated crime the defendant aided andabetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime andthat the crime of Murder was a natural and probable consequence of the commission ofthat target crime.] (CALJIC 3.02 (1997 Revision)[Principals — Liability for Natural and Probable Consequences]; 5 CT 1128; 14 RT 2207-2208.) °° The jury wasinstructed: “If a humanbeingis killed by any one of several persons engaged in the commission or attempted commission of the crime of attempted robbery,all persons, whoeither directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging,or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission,are guilty of murderof the first degree, whether the killing is intentional, unintentional, or accidental. 4 [In order to be guilty of murder, as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the attempted robbery at the time the fatal [wound was inflicted].] [However, an aider and abettor maystill be jointly responsible for the commission of the underlying attempted robbery based upon other principals of law which will be given to you.]” (CALJIC 8.27 (1998 Revision)[First Degree Felony Murder — Aider and Abettor (Pen. Code § 189)]; CT 1137; 14 RT 2214-2215.) -132- 23 aaa a Aad Ara ihe murdertheory -- as opposed to an intent to kill theory -- as the jurors were expressly instructed that they could find appellant guilty of aiding and abetting Urrutia’s murder only if they found that appellant was aiding and abetting an attempted robbery. (5 CT 1128, 1137.). Here,the prosecution introduced some evidence intended to suggest that appellant had entertained an intent to kill Encinas [asking him “Do you wantto go to sleep?”], however,it failed to present sufficient evidence that appellant intended to kill Urrutia The prosecution summarizedits aiding and abetting theory by arguing that appellant and Mora were equally guilty of each crime and each special circumstance simply because they participated together in the crimes. (14 RT 2272-2273.) Alternatively, the prosecution argued the jury could find first degree murder without an intent to kill through the felony murderdoctrine. “[t]hey had specific intent to commit the robbery and somebody waskilled in the process of the robbery going down. ¥ This is felony murder, and this too equals first degree murder. § For this you don’t have to have willful, deliberate and premeditated. You don’t even haveto haveintent to kill. In can be unintentional or accidental. When you commit a dangerous act such as robbery and someonegets killed, that is first degree murder.” (14 RT 2236.) In regard to the multiple murder special circumstance, the prosecution’s theory was ** Although Rangel’s defense was misidentification, defense counsel also argued that Rangel did not know anyone except for Mora whenhe arrived on the scene and had no motive to committhe crimes. (14 RT 2289.) -133- simple, and like the multiple murder instruction given to the jury (CALJIC 8.81.3), omitted any mention ofthe intent to kill requirement: “Now,the defendants are also charged with the allegations of special circumstances... Jit’s just an allegation and there are two of them in this case. § And the first one is multiple murder convictions. That meansfor the People to prove that special circumstance of multiple murder convictions, (sic) defendant to be guilty of, you have to find one countoffirst degree murder. 4] Meaning, in your verdicts you mustfind that at least one count of first degree murder occurred. So, say you said Andy Encinas,that wasfirst degree murderfor sure, that qualifies here. 4] Then one countoffirst degree or second degree murder. § So if you foundfirst degree as to — as to Andy and Anthony, done. If you found first degree as to one and second degree as to the other, done. It is proven to you. That’s all that means, with special circumstance as to multiple murder convictions — convictions in this case.” (14 RT 2238-2239.) This argumentspecifically gave the jury permission to find the multiple murder circumstance true if they found appellant guilty of murder under any theory. In light of the prosecutions arguments and the instructions given as a whole there is no way to determinethat the jury found the multiple murder special circumstancetrue based upon proof beyonda reasonable doubt that appellant intended to kill Urrutia. Rather, the jury could have just as easily found the multiple murder circumstancetrue finding merely that appellant specifically intended to commit the robbery in which a death resulted “intentional[ly], unintentional[ly] or accidental[ly]” or acted with reckless indifference to humanlife, intended to aid Mora in robbing Urrutia as instructed with -134- Ld tee aR ai CALJIC 8.21°”, 8.81.3 and the modified CALJIC 8.80.1. (5 CT 1136, 1144-1146.) Where,as here, there is evidence from which the jury could have based its verdict on an accomplice theory, the jury must be required to find that the defendant intended to aid anotherin the killing of a human being before the multiple murder circumstance could be found true. (See People v. Williams, supra, 16 Cal.4th at p. 689.) In People v. Garrison, supra, 47 Cal.3d 746, this Court found that: “TW|hen the defendant is an aider and abettor rather than the actual killer, intent to kill must be proved before the trier of fact can find the [multiple murder] special circumstanceto betrue [citations omitted]. Where, as here, there was evidence from which a jury could havebasedits verdict on an accomplice theory, the court erred in failing to instruct that the jury must find that defendant intendedto aid anotherin the killing of a human being. (Id. at 789; see also People v. Jones (2003) 30 Cal.4th 1084, 1118 [“[W]hen the defendantis an aider and abettor rather than the actual killer, intent must be proved.”]). However,here, in light of the instructions as a whole, the jury could not have believed it was required to makethis finding. Even assuming arguendothat the evidence wassufficient to find that appellant had the intent to kill Urrutia, this Court cannot know whether the jury actually based its true °° The jury wasinstructed that: “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs [during the commission or attempted commission of the crime] of robbery is murder of the first degree when the perpetrator had the specific intent to commit that crime. § The specific intent to commit robbery and the commission or attempted commission of such crime must be proven beyonda reasonable doubt.” (CALJIC 8.21 [First Degree Felony-Murder (Pen. Code § 189)]; 5 CT 1136.) -135- finding of multiple murder on this theory or on the invalid theories of felony murderor reckless indifference to humanlife. D. Because It Cannot Be Determined If The Jury Based Its True Finding on The Multiple Murder Circumstance on an Intent to Kill Theory Rather than a Reckless Indifference Theory, the Multiple Murder Special Circumstance Must be Set Aside. When,as here,a jury is instructed on alternate theories of liability, some of which are legally correct and others whichare not, a reversal is required unlessthere is a basis on the record to conclude that jury actually based its verdict on a legally correct theory. (People v. Guiton, supra, 4 Cal.4th 1116, 1129.) “Jurors are not generally equipped to determine whethera particular theory of conviction submitted to them is contrary to the law .... Whentherefore, jurors have beenleft with the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.’ [Citation.]” (Ud. at 1125, quoting Griffin v. United States, supra, 502 U.S. 46, 59.) Further, in People v. Perez (2005) 35 Cal.4th 1219, this Court enunciated the assessment of prejudice in cases in which the jury waspresented with a legally inadequate theory. “When one of the theories presented to a jury is legally inadequate, such as a theory which “‘fails to come within the statutory definition of the crime’” (People v. Guiton, supra, 4 Cal.4th at p. 1128, quoting Griffin v. United States (1991) 502 U.S. 46, 59, 112 S.Ct. 466, 116 L.Ed.2d 371), the jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a verdict on the basis of the legally invalid theory without realizing that, as a matter of law, its factual findings are insufficient to constitute the charged crime. In such circumstances, reversal generally is required unless “it is possible to determinefrom other portions ofthe verdict that thejury -136- necessarilyfound the defendant guilty on a proper theory. [Citation omitted.]” Ud. at 1233 [emphasis added].) On this record, this Court cannot determine beyond a reasonable doubt whether appellant’s jurors based their multiple murder finding on an intentto kill, or on their erroneous belief that “reckless indifference” rather than “intent to kill” was sufficient for a true finding on the multiple murderspecial circumstance. For these reasons and because there was insufficient evidence of Rangel’s intent to aid Morain killing Urrutia, the multiple murder special circumstance finding and the judgment of death must be reversed. Finally, the evidence cannotsatisfy the heightened-reliability requirement mandated in capital cases by the Eighth and Fourteenth Amendments and the analogous provisions of the California Constitution. Even if the evidence were sufficient in a noncapital context, to support a murder conviction on an aiding and abetting theory, the evidence of intent to kill necessary for a multiple murder finding is too weak and uncertain to serve as a constitutionally valid basis for establishing death-eligibility and turning a noncapital homicide into capital murder. Thus, permitting appellant’s multiple murderspecial circumstance finding to stand would violate not only Winship’s due process standard for a criminal conviction, but also would violate the special reliability standards mandatedin capital cases by due processand the Eighth Amendment, and California state constitutional analogues. (U.S. Const., 5th, 8th & 14th Amends.; Cal. -137- Const., art. I, §§ 1, 7, 15, 17; Beck v. Alabama, supra, 447 U.S. 625, 637-638; People v. Marshall, supra, 15 Cal.4th 1, 34-35.) // // -138- a= ihe a ead = VII. THE TRIAL COURT ERREDIN INSTRUCTING THE JURY ON FIRST DEGREE PREMEDITATED MURDER ANDFIRST DEGREE FELONY- MURDER BECAUSE THE INFORMATION CHARGED APPELLANT ONLY WITH SECOND DEGREE MALICE-MURDERIN VIOLATION OF PENAL CODE SECTION 187 VIOLATING HIS CONSTITUTIONAL RIGHTS. A. Introduction Appellant’s state and federal constitutional rights to notice, due process anda fair and reliable guilt phase were violated whenthetrial court instructed the jury that it could convict him of the uncharged crimeoffirst degree murder. (U.S. Const., 5th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 17.) The information charged appellant with second degree murderrequiring malice. (Pen. Code, § 187). However, appellant’s jurors were instructed they could convict appellant of first degree murder if he committed a deliberate and premeditated murder (CALJIC No. 8.20; 5 CT 1134-1135; 14 RT 2212- 2213), if he killed during the commission or attempted commission of robbery (CALJIC No. 8.21; 5 CT 1136; 14 RT 2214), or if he aided and abetted an attempted robbery during which a killing occurred. (Pen. Code, § 189; CALJIC No. 8.27; 5 CT 1137; 14 RT 2214-2215.) The jurors convicted appellant of two counts of first degree murder. (4 CT 1010-1011, 15 RT 2463-2464.) Counts | and 2 of the Information alleged appellant “unlawfully, and with malice aforethought murder[ed]” Andres Encinas and Antonio Urrutia, and charged appellant with “the crime[s] of murder, in violation of Penal Code section 187(a).” (2 CT 501- -139- 502.) Both the description of the crime (“unlawfully, and with malice aforethought’”), and the statutory reference (“Penal Code section 187(a)’”) establish that appellant was charged exclusively with second degree malice murder in violation of Penal Code section 187, not with first degree murderin violation of Penal Code section 189. B. The Trial Court Erred in Instructing Appellant’s Jury on First Degree Premeditated Murder and First Degree Felony-Murder because the Information Charged Appellant only With Second Degree Malice- Murderin Violation of Penal Code Section 187. As discussed below,the instructions on first degree murder were erroneous, and the resulting first degree murder convictions murder must be reversed, because the information did not charge appellant with first degree murder and did not allege the facts necessary to establish first degree murder.*” Penal Codesection 187, the statute appellant was charged with violating, describes second degree murder, which the Court has defined as “the unlawful killing of a human being with malice, but without the additional elements(1.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. [Citations.]” *°Appellant is not arguing that the information was defective. On the contrary, as explained in this argument, counts | and 2 of the information were entirely correct charges of second degree malice-murder in violation of Penal Code section 187. The error arose whenthetrial court instructed the jury on the separate uncharged crimes of first degree premeditated murderandfirst degree felony-murderin violation of Penal Code section 189. -140- om nem (People v. Hansen (1994) 9 Cal.4th 300, 307.)Penal Code “[s]ection 189 definesfirst degree murderas all murder committed by specified lethal means ‘or by any other kind of willful, deliberate, and premeditated killing,’ or a killing which is committed in the perpetration of enumerated felonies[.]” (People v. Watson (1981) 30 Cal.3d 290, 295.)2% Because the information charged only second degree malice murderin violation of Penal Codesection 187, the trial court lacked jurisdiction to try appellant for first degree murder. A court has no jurisdiction to proceed with the trial of an offense without a valid indictment or information charging that specific offense. (Rogers v. Superior Court (1955) 46 Cal.2d 3, 7; People v. Granice (1875) 50 Cal. 447, 448-449 [defendant could not be tried for murderafter the grand jury returned an indictment for manslaughter]; People v. Murat (1873) 45 Cal. 281, 284 [an indictment charging only assault with intent °? Subdivision (a) of Penal Code section 187, unchangedsince its enactmentin 1872 except for the addition of the phrase “or a fetus” in 1970, provides as follows: “Murderis the unlawful killing of a humanbeing, or a fetus, with malice aforethought.” °§ In 1997, when the murdersat issue allegedly occurred, Penal Code section 189 provided in pertinent part: All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnaping, train wrecking, or any act punishable under Section 286, 288, 288a, or 289, or any murder which is perpetrated by means ofdischarging a firearm from a motorvehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murdersare of the second degree. -141- to murder would not support a conviction of assault with a deadly weapon].) Nevertheless, the Court has held that a defendant may be convictedoffirst degree murder even though the information or indictment charged only murder with malice in violation of Penal Code section 187. (See, e.g., People v. Morgan (2007) 42 Cal.4th 593; People v. Hughes (2002) 27 Cal.4th 287, 368-370; see also Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1034.) These decisions, and the cases on which theyrely, rest explicitly or implicitly on the premise that all forms of murder are defined by Penal Code section 187, so that an accusation in the language of that statute adequately charges every type of murder, making specification of the degree, or the facts necessary to determine the degree, unnecessary. Thus, in People v. Witt (1915) 170 Cal. 104, this Court declared: Whatever may bethe rule declared by some cases from otherjurisdictions, it must be accepted as the settled law of this state that it is sufficient to charge the offense of murderin the languageofthe statute definingit, whateverthe circumstancesof the particular case. As said in People v. Soto, 63 Cal. 165, “The information is in the language ofthe statute defining murder, which is ‘Murderis the unlawful killing of a human being with malice aforethought’ (Pen. Code, sec. 187). Murder, thus defined, includes murderin the first degree and murderin the second degree.It has many times been decidedbythis court that it is sufficient to charge the °° This statement alone should preclude placing any reliance on People v. Soto (1883) 63 Cal. 165. It is simply incorrect to say that a second degree murder committed with malice, as defined in Penal Code section 187, includesa first degree murder committed with premeditation or with the specific intent to commit a felony listed in Penal Codesection 189. On the contrary, “Second degree murderis a lesser included offense of first degree murder” (People v. Bradford (1997) 15 Cal.4th 1229, 1344, citations omitted), at least when the first degree murder does not rest on the felony murder rule. A crime cannot both include another and be included withinit. -142- offense committed in the languageof the statute defining it. As the offense charged in this case includes both degrees of murder, the defendant could be legally convicted of either degree warranted by the evidence.” (People v. Witt, supra, 170 Cal. at pp. 107-108.) However,the rationale of People v. Witt, supra, and all similar cases has been completely undermined bythe decision in People v. Dillon (1983) 34 Cal.3d 441. Although this Court has noted that “[s]ubsequent to Dillon, supra, 34 Cal.3d 441, [it] [has] reaffirmed the rule of People v. Witt, supra, 170 Cal. 104, that an accusatory pleading charging a defendant with murderneed not specify the theory of murder upon which the prosecution intends to rely” (People v. Hughes, supra, 27 Cal.4th at p. 369),it has never explained how the reasoning of Witt can be squared with the holding of Dillon. Witt reasoned that “it is sufficient to charge murderin the language ofthe statute defining it.” (People v. Witt, supra, 170 Cal. at p. 107.) Dillon held that Penal Code section 187 wasnot“the statute defining”first degree felony murder. After an exhaustive review of statutory history and legislative intent, the Dillon court concluded, “Weare therefore required to construe [Penal Code] section 189 as a statutory enactmentof the first degree felony murderrule in California.” (People v. Dillon, supra, 34 Cal.3d at p. 472, italics added and fn. omitted.) Moreover,in rejecting the claim that People v. Dillon, supra, 34 Cal.3d 441, requires the jury to agree unanimously onthe theory offirst degree murder, this Court has stated that “[t]here is still only ‘a single statutory offense of first degree murder.’” -143- (People v. Carpenter (1997) 15 Cal.4th 312, 394, quoting People v. Pride (1992) 3 Cal.4th 195, 249; accord, People v. Box (2000) 23 Cal.4th 1153, 1212.) Although that conclusion can be questioned,it is clear that, if there is indeed “a single statutory offense of first degree murder,” the statute which defines that offense must be Penal Code section 189. No other California statute purports to define premeditated murder (see Pen. Code, § 664, subd.(a), referring to “willful, deliberate, and premeditated murder, as defined by Section 189”) or murder during the commission of a felony, and People v. Dillon, supra, 34 Cal.3d at p. 472, expressly held that the first degree felony murderrule was codified in Penal Code section 189. Therefore, if there is a single statutory offenseoffirst degree murder, it is the offense defined by Penal Codesection 189, and the information did not charge first degree murderin the language of “the statute defining” that crime. Underthese circumstances,it is immaterial whether this Court was correct in concluding that “[f]elony murder and premeditated murderare not distinct crimes.” (People v. Nakahara (2003) 30 Cal.4th 705, 712.) First degree murder of any type and second degree malice murderclearly are distinct crimes. (See People v. Hart (1999) 20 Cal.4th 546, 608-609, discussing the differing elements of those crimes; People v. Bradford, supra, 15 Cal.4th at p. 1344, holding that second degree murderis a lesser -144- offense included within first degree murder.) The greatest difference is the one between second degree malice murderandfirst degree felony murder. By the express terms of Penal Code section 187, second degree malice murder includes the element of malice. (People v. Watson, supra, 30 Cal.3d at p. 295; People v. Dillon, supra, 34 Cal.3d at p. 475.) Malice, however,is not an element of felony murder. (People v. Box, supra, 23 Cal.4th at p. 1212; People v. Dillon, supra, 34 Cal.3d at pp. 475, 476, fn. 23). In Green v. United States (1957) 355 U.S. 184, the United States Supreme Court reviewed District of Columbia statutes identical in relevant respects to Penal Codesections 187 and 189(id. at pp. 185-186, fns. 2, 3) and declared that “[i]t is immaterial whether second degree murderis a lesser offense included in a charge of felony murderor not. The vital thing is that it is a distinct and different offense” (id. at p. 194, fn. 14). Furthermore, regardless of how this Court construes the various statutes defining °° Justice Schauer emphasized this fact when,in the course of arguing for affirmance of the death sentence in People v. Henderson (1963) 60 Cal.2d 482, he stated that: “The fallacy inherent in the majority’s attempted analogy is simple.It overlooks the fundamental principle that even though different degrees of a crime may refer to a common name(e.g., murder), each of those degrees is in fact a different offense, requiring proofofdifferent elements for conviction. This truth was well grasped by the court in Gomez [v. Superior Court (1958) 50 Cal.2d 640, 645], where it was stated that ‘The elements necessary for first degree murder differ from those of second degree .” (People v. Henderson, supra, at pp. 502-503 (dis. opn. of Schauer, J.), italics in original.) murder... -145- murder, it is now clear that the federal Constitution requires more specific pleading in this context. In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held that, under the notice and jury trial guarantees of the Sixth Amendment and the due process guarantee of the Fourteenth Amendment, “anyfact (other than prior conviction) that increases the maximum penaltyfor a crime must be charged in an indictment, submitted to a jury and proved beyond a reasonable doubt.” (/d. at p. 476, italics added,citation omitted.)*” In Cunningham c. California (2007) 549 U.S. 270, the United States Supreme Court applied this standard to California’s Determinate Sentencing Law and found that, because the DSL’s circumstancesin aggravation were factual in nature, they must be pled and found true by a jury beyond a reasonable doubt. (Id. at 293.) Apprendi and Cunningham compelthe conclusion that the premeditation and felony-murderallegations of section 189 constitute elements of the offense that must be charged in an indictment, submitted to a jury and proved beyond a reasonable doubt. Premeditation and the facts necessary to bring a killing within the first degree felony murder rule (commission or attempted commission of a felony listed in Penal Code section 189 together with the specific intent to commit that crime) are facts which increase the maximum penalty for the crime of murder. If they are not present, the crime °' See also Hamling v. United States (1974) 418 U.S. 87, 117: “It is generally sufficient that an indictmentset forth the offense in the wordsofthe statute itself, as long as ‘those words of themselvesfully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.’ [Citation.]” -146- S s @ 2 £ 8 € 2 € B F R B € B F e e€ ew e w t e e e e w e B hUe e e s l e is second degree murder, and the maximum punishmentislife in prison. If they are present, the crime is first degree murder, special circumstances can apply, and the punishment can belife imprisonment without parole or death. (Pen. Code, § 190, subd. (a).) Therefore, those facts should have been charged in the information. (See United States v. Allen (8th Cir. 2004) 357 F.3d 745, 758 [vacating death sentence becausefailure to allege aggravating factor in indictment was not harmlesserror]; see also State v. Fortin (N.J. 2004) 843 A.2d 974, 1035-1036 [holding prospectively that in capital cases aggravating factors must be submitted to the grand jury and returned in the indictment].) Permitting the jury to convict appellant of an uncharged crime violated his right to due process of law. (U.S. Const., Sth & 14th Amends.; Cal. Const., art. I, §§ 7, 15; DeJonge v. Oregon (1937) 299 U.S. 353, 362; In re Hess (1955) 45 Cal.2d 171, 174-175.) One aspect of that error, the instructions on first degree felony murder, also violated appellant’s right to due process andtrial by jury becauseit allowed the jury to convict him of murder without finding the malice which was an essential element of the crime alleged in the information. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16; People v. Kobrin (1995) 11 Cal.4th 416, 423; People v. Henderson (1977) 19 Cal.3d 86, 96, overruled on other grounds by People v. Flood, supra, 18 Cal.4th 470, 484, 490 & fn. 12.) The error also violated appellant’s right to a fair and reliable capital guilt trial. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, § 17; Beck v. Alabama,supra, 447 U.S. 625, 638.) -147- C. Appellant’s Convictions for First-Degree Murder Must Be Reversed. These violations of appellant’s constitutional rights were necessarily prejudicial because,if they had not occurred, appellant could have been convicted only of second degree murder, a noncapital crime. (See State v. Fortin, supra, 843 A.2d at pp. 1034-1035.) Thus, appellant’s convictions for first degree murder must be reversed. HM HM -148- f s € @ E S D IX. THE TRIAL COURT COMMITTED REVERSIBLE ERROR, AND DENIED APPELLANTHIS CONSTITUTIONAL RIGHTS, IN FAILING TO REQUIRE THE JURY TO AGREE UNANIMOUSLY ON WHETHER APPELLANT HAD COMMITTED A PREMEDITATED MURDER OR A FELONY-MURDER BEFORE RETURNING A VERDICT FINDING HIM GUILTY OF MURDERIN THE FIRST DEGREE. A. Introduction Thefailure to require the jury to agree unanimously as to whether appellant committed a premeditated murderor a first degree felony murder was erroneous,and the error denied appellant his right to have all elements of the crime of which he was convicted proved beyond a reasonable doubt, his right to a unanimousjury verdict, and his right to a fair and reliable determination that he committed a capital offense. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, 17.) Here, the trial court instructed appellant’s jury on first degree premeditated murder (CALJIC No. 8.20; 5 CT 1134-1135; 14 RT 2212-2213), and on first degree felony murder predicated on robbery. (CALJIC Nos. 8.21 & 8.27; 5 CT 1136-1137; 14 RT 2214-2215.) The trial court did not, however, instruct the jury that it had to agree unanimously on whichtype of first degree murder appellant committed. B. The Jury Must Be Unanimous On the Theory of First-Degree Murder Under Which They Convicted Appellant. Appellant acknowledges that the Court has rejected the claim that the jury cannot return a valid verdict of first degree murder withoutfirst agreeing unanimously as to -149- whether the defendant committed a premeditated murderor a felony murder. (See,e.g., People v. Nakahara, supra, 30 Cal.4th 705, 712-713; People v. Kipp (2001) 26 Cal.4th 1100, 1132; People v. Carpenter, supra, 15 Cal.4th 312, 394-395.) This conclusionis erroneous and should be reconsidered,particularly in light of recent decisions of the United States Supreme Court. The Court consistently has held that the elements of first degree premeditated murder and first degree felony murderare not the same. In the watershed case of People v. Dillon, supra, 34 Cal.3d 441, the Court acknowledgedfirst that “[i]n every case of murderother than felony murder the prosecution undoubtedly has the burden of proving malice as an element of the crime. [Citations.]” (Ud. at p. 475.) It then declared that “in this state the two kinds of murder [felony murder and malice murder] are not the ‘same’ crimes and malice is not an element of felony murder.” (/d. at p. 476, fn. 23; see also id. at pp. 476-477.) In subsequentcases, the Court retreated from the conclusion that felony murder and premeditated murder are not the same crime (see, e.g., People v. Nakahara, supra, 30 Cal.4th at p. 712 [holding that “[f]elony murder and premeditated murderare not distinct * “It follows from the foregoing analysis that the two kindsoffirst degree murder in this state differ in a fundamental respect: in the case of deliberate and premeditated murder with malice aforethought, the defendant’s state of mind with respect to the homicideis all important and must be proved beyond a reasonable doubt; in the case of first degree felony murderit is entirely irrelevant and need notbe provedat all... . [This is a] profoundlegal difference ....” (People v. Dillon, supra, at pp. 476-477,fn. omitted.) -150- e e e e ee e e e e e e e e o e o e ee e e e e e e e e ee ee ee crimes”]), but it has continuedto hold that the elements of those crimes are not the same. Thus, in People v. Carpenter, supra, 15 Cal.4th at page 394, the Court explained that the language from footnote 23 of People v. Dillon, supra, 34 Cal.3d 441, quoted above, “meant that the elements of the two types of murder are not the same.” Similarly, the Court has declared that “the elements of the two kinds of murder differ” (People v. Silva (2001) 25 Cal.4th 345, 367), and that “the two forms of murder [premeditated murder and felony murder] have different elements.” (People v. Nakahara, supra, 30 Cal.4th atp. 712; People v. Kipp, supra, 26 Cal.4th at p. 1131.) “Calling a particular kind of fact an ‘element’ carries certain legal consequences.” (Richardson v. United States (1999) 526 U.S. 813, 817.) Examination of the elements of the crimesat issue is the method used both to determine whethercrimes that carry the sametitle are in reality different and distinct offenses (see People v. Henderson, supra, 60 Cal.2d at pp. 502-503 (dis. opn. of Schauer, J.)), and also to determine which facts the constitutional requirements oftrial by jury and proof beyond a reasonable doubt apply. (See Jones v. United States (1999) 526 U.S. 227, 232.) Both of these determinations are relevant to the issue of whether the jury must find those facts by a unanimousverdict. Comparison of the elements of the crimesat issue is the traditional method used by the United States Supreme Court to determine if crimesare different or the same. The question first arose as an issue of statutory construction in Blockberger v. United States (1932) 284 U.S. 299, when the defendant asked the Court to determine if two sections of -151- the Harrison Narcotic Act created one offense or two. The Court concluded that the two sections described different crimes, and explained its holding as follows: Each of the offenses created requires proof of a different element. The applicable rule is that where the sameact or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact that the other does not. (Ud. at p. 304, citing Gavieres v. United States (1911) 220 U.S. 338, 342.) Later, the “elements” test announced in Blockberger waselevated to a rule of constitutional dimension. It is now the test used to determine what constitutes the “same offense” for purposes of the Double Jeopardy Clause of the Fifth Amendment (United States v. Dixon (1993) 509 U.S. 688, 696-697), the Sixth Amendment right to counsel (Texas v. Cobb (2001) 532 U.S. 162, 173), the Sixth Amendmentrightto trial by jury, and the Fourteenth Amendmentright to proof beyond a reasonable doubt (Mongev. California (1998) 524 U.S. 721, 738 (dis. opn. of Scalia, J.);&' see also Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 111 (lead opn. of Scalia, J.)). ° “The fundamental distinction between facts that are elements of a criminal offense and facts that go only to the sentence provides the foundation for our entire double jeopardy jurisprudence — including the ‘same elements’ test for determining whether two ‘offence[s]’ are ‘the same,’ see Blockberger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and the rule (at issue here) that the Clause protects an expectation of finality with respect to offences but not sentences. The samedistinction also delimits the boundaries of other important constitutional rights, like the Sixth Amendmentrightto trial by jury and the right to proof beyond a reasonable doubt.” (Mongev. California, supra, at p. 738 (dis. opn. of Scalia, J.).) -152- Malice murder and felony murder are defined by separate statutes and “each... requires proof of an additional fact that the other does not.” (Slockberger v. United States, supra, at p. 304.) Malice murder requires proof of malice and,if the crimeis to be elevated to murderofthe first degree, proof of premeditation and deliberation; felony murder does not. Felony murder requires the commission of or attempt to commit a felony listed in Penal Code section 189 and the specific intent to commit that felony; malice murder does not. (Pen. Code, §§ 187 & 189; People v. Hart, supra, 20 Cal.4th 546, 608-609.) Therefore,it is incongruousto say, as the Court did in People v. Carpenter, supra, 15 Cal.4th 312, that the language in People v. Dillon, supra, 34 Cal.3d 441, on which appellantrelies, “only meant that the elements of the two types of murderare not the same.” (People v. Carpenter, supra, at p. 394,first italics added.) If the elements of malice murder and felony murderare different, as Carpenter acknowledgestheyare, then malice murder and felony murderare different crimes. (United States v. Dixon, supra, 509 U.S.at p. 696.) Examination of the elements of a crime also is the method used to determine which facts must be proved to a jury beyond a reasonable doubt. (Mongev. California, supra, 524 U.S.at p. 738 (dis. opn. of Scalia, J.); see People v. Sakarias (2000) 22 Cal.4th 596, 623.) Moreover, the right to trial by jury attaches even to facts that are not “elements”in the traditional sense if a finding that those facts are true will increase the maximum -153- sentence that can be imposed. “[A]|ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyonda reasonable doubt.” (Apprendi v. New Jersey, supra, 530 U.S. 466, 476; see also id. at p. 490.) Whentheright to jury trial applies, the jury’s verdict must be unanimous. The right to a unanimousverdict in criminal cases is secured by the state Constitution and state statutes (Cal. Const., art. I, § 16; Pen. Code, §§ 1163 & 1164; People v. Collins (1976) 17 Cal.3d 687, 693) and protected from arbitrary infringement by the Due Process Clause of the Fourteenth Amendmentto the United States Constitution. (Hicksv. Oklahoma (1980) 447 U.S. 343, 346; Vitek v. Jones (1980) 445 U.S. 480, 488.) Becausethis is a capital case, the right to a unanimousverdict also is guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (See Schad v. Arizona (1991) 501 U.S. 624, 630-631 (plur. opn.) [leaving this question open].) The purpose of the unanimity requirementis to insure the accuracy andreliability of the verdict (Brown v. Louisiana (1980) 447 U.S. 323, 331-334; People v. Feagley (1975) 14 Cal.3d 338, 352), and there is a heightened need forreliability in the procedures leading to the conviction of a capital offense. (Murray v. Giarratano (1989) 492 USS. 1, 8-9; Beck v. Alabama, supra, 447 U.S. 625, 638.) Therefore, jury unanimity is required in capital cases. This conclusion cannot be avoided by recharacterizing premeditation and the facts -154- # s € 2 6 8 5 necessary to invoke the felony murderrule as “theories” rather than “elements”offirst degree murder. (See, e.g., People v. Millwee (1998) 18 Cal.4th 96, 160, citing Schad v. Arizona, supra, 501 U.S. 624.) There are three reasons whythisis so. First, in contrast to the situation reviewed in Schad, where the Arizona courts had determined that “premeditation and the commission of a felony are not independent elements of the crime, but rather are mere means of satisfying a single mens rea element” (Schad v. Arizona, supra, 501 U.S. at p. 637), California courts repeatedly have characterized premeditation as an elementof first degree premeditated murder. (See, e.g., People v. Thomas (1945) 25 Cal.2d 880, 899 [premeditation and deliberation are essential elements of premeditated first degree murder]; People v. Gibson (1895) 106 Cal. 458, 473-474 [same]; People v. Albritton (1998) 67 Cal.App.4th 647, 654, fn. 4 [malice and premeditation are the ordinary elements of first degree murder].) The specific intent to commit the underlying felony likewise has been characterized as an element of first degree felony murder. (People v. Jones (2003) 29 Cal.4th 1229, 1257-1258; id. at p. 1268 (conc. opn. of Kennard,J.).) Moreover, the Court has recognized that it was the intent of the Legislature to make premeditation an elementof first degree murder: Wehave held,“By conjoining the words ‘willful, deliberate, and premeditated’in its definition and limitation of the character of killings falling within murderof the first degree, the Legislature apparently emphasized its intention to require as an element of such crime substantially more reflection than may be involved in the mere formation of a specific -155- intent to kill.” [Citation.] (People v. Stegner (1976) 16 Cal.3d 539, 545, quoting People v. Thomas, supra, 25 Cal.2d at p. 900.) As the United States Supreme Court has explained, Schad held only that jurors need not agree on the particular means used by the defendant to commit the crime or the “underlying brute facts” that “make up a particular element,” such as whether the element of force or fear in a robbery case was established by the evidencethat the defendant used a knife or by the evidence that he used a gun. (Richardson v. United States, supra, 526 U.S. at p. 817.) This case involves the elements specified in the statute defining first degree murder (Pen. Code, § 189), not the particular means or the “underlying brute facts” which maybe usedat times to establish those elements. Second, no matter how theyare labeled, premeditation and the facts necessary to °4 Specific intent to commit the underlying felony, the mens rea elementoffirst degree felony murder,is not specifically mentioned in Penal Code section 189. However, ever since its decision in People v. Coefield (1951) 37 Cal.2d 865, 869, this Court has held that such an intent is required (see, e.g., People v. Hernandez (1988) 47 Cal.3d 315, 346, and casesthere cited; People v. Dillon, supra, 34 Cal.3d at p. 475), and that authoritative judicial construction “has become as mucha part ofthe statute as if it had been written by the Legislature” (People v. Honig (1996) 48 Cal.App.4th 289, 328; accord, Winters v. New York (1948) 333 U.S. 507, 514; People v. Guthrie (1983) 144 Cal.App.3d 832, 839). Furthermore, Penal Code section 189 has been amended and reenacted several times in the interim, but none of the changes purported to delete the requirement of specific intent, and “There is a strong presumption that when the Legislature reenacts a statute which has been judicially construed it adopts the construction placed on the statute by the courts.” (Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 433, citations and internal quotation marks omitted.) -156- € s € 8 € 3 € 8 € 8 € 8 € 8 3 € 3 € 3 € 8 € 3 6 8 support a conviction for first degree felony murderare facts that operate as the functional equivalent of “elements” of the crime of first degree murder, and, if found, increase the maximum sentence beyond the penalty that could be imposed on a conviction for second degree murder. (Pen. Code, §§ 189 & 190, subd. (a).) Therefore, they must be found by procedures that comply with the constitutional right to trial by jury (Ring v. Arizona (2002) 536 U.S. 584, 603-605; Apprendi v. New Jersey, supra, 530 U.S. at pp. 494-495), which,for the reasons previously stated, include the right to a unanimousverdict. Third, at least one indisputable “element” is involved. First degree premeditated murder doesnot differ from first degree felony murderonly in that the former requires premeditation while the latter does not. The two crimesalso differ because first degree premeditated murder requires malice while felony murder does not. “‘The mental state required[for first degree premeditated murder] is, of course, a deliberate and premeditated intent to kill with malice aforethought. (See [Pen. Code,] §§ 187, subd.(a), 189.)’” (People v. Hart, supra, 20 Cal.4th at p. 608; accord, People v. Visciotti (1992) 2 Cal.4th 1, 61.) Malice is a true “element” of murder in anybody’s book. C. Appellant’s Convictions of First-Degree Murder Must Be Reversed. It was error for the trial court to fail to instruct the jury that it had to agree unanimously on whether appellant had committed a premeditated murderor a felony murder. Because the jurors were not required to reach unanimous agreementon the elements of first degree murder, there is no valid jury verdict on which harmlesserror -157- analysis can operate. Thefailure to instruct was a structural error and therefore reversal of the entire judgmentis required. (Sullivan v. Louisiana (1993) 508 U.S. 275, 280.) // // // -158- f s € @ £ 8 € 8 S s € 8 € 8 3 @ € @ B € R B € B £ € e B F S B e B | € s e e le 8 xX. THE TRIAL COURT ERRED WHENIT REFUSED APPELLANT’S PINPOINT INSTRUCTION STATING THAT CONVICTING APPELLANT UNDER THE FELONY MURDER THEORY REQUIRED THAT APPELLANT COMMITTED THE ATTEMPTED ROBBERY FORA PURPOSE WHOLLY INDEPENDENT OF THE MURDER, VIOLATING APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS. A. Introduction Thetrial court’s refusal to instruct the jury on a necessary finding for felony murder violated appellant’s rights underthe Fifth, Eighth and Fourteenth Amendmentsto the United States Constitution, his analogous rights under the California Constitution, and his rights understate law, including, but not limited to, his rights to due processoflaw, present a defense,a fairtrial, trial by jury, and to a reliable guilt and penalty verdict. (U.S. Const., 5th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 17, 24.) The trial court erred in refusing appellant’s pinpoint instruction on its alternate theory of defense to felony murder because it was a correct statement of law and would have charged the jury with howto relate the evidence of felony murder to the prosecution’s burden of proving felony murder beyond a reasonable doubt. At the end of the guilt phase, appellant requested the court supplementthe standard first degree felony murder instruction (CALJIC 8.21) with language from Peoplev. Sears® as reflected in Special Instruction No. 1.°” (4 CT 1043.) The court declined to *° People v. Sears, supra, 2 Cal.3d 180, 187-188 [““The purposeofthe felony-murderrule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.' [Citation omitted] Where a person -159- do so, finding that “the essence” of the additional language was included in CALJIC 8.21 itself.’ The court further found that the standard instruction on aider and abettorliability under felony murder (CALJIC 8.27%’)“covers the issue” and that there was not any need enters a building with an intent to assault his victim with a deadly weapon,heis not deterred by the felony-murder rule. That doctrine can serve its purpose only when applied to a felony independent of the homicide.”’].) °° Special Instruction No. 1 read as follows: “To prove the felony murderoffirst degree murder, the prosecution must prove beyond a reasonable doubt that the attempted robbery was donefor the independent purpose of committing the felony rather than for the purpose of committing the homicide. {| If the defendant’s primary purpose wasto kill or if he committed the attempted robbery to facilitate or conceal the homicide, then there wasno independent felonious purpose. If from all the evidence you have a reasonable doubt that the defendant committed the attempted robbery for such independent felonious purpose, you must find the defendantnot guilt on the felony murder theory.” (4 CT 1043) °’ CALJIC 8.21 as given here provided: “The unlawfulkilling of a human being, whetherintentional, unintentional or accidental, which occurs [during the commission or attempted commission of the crime] of robbery is murderof the first degree when the perpetrator had the specific intent to commit that crime. {| The specific intent to commit robbery and the commission or attempted commission of such crime must be proved beyonda reasonable doubt.” (CT 1136.) °§ CALJIC 8.27 as given here provided: “If a humanbeingis killed by any one of several persons engaged in the commission or attempted commission of the crime of attempted robbery,all persons, whoeither directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid promote, encourage, or instigate by act or advice its commission, are guilty of murderof the first degree, whether the killing is intentional, unintentional, or accidental. { [In order to be guilty of murder, as an aider andabettorto a felony murder, the accused andthe killer must have been jointly engaged in the commission of the attempted robbery at the time the fatal [wound wasinflicted]. | [However, an aider and abettor maystill be jointly responsible for the commission ofthe underlying attempted robbery based upon otherprinciples of law which will be given to you.] (CT 1137) -160- $ 8 € 8 €8 32 € 8 2 € B € B € B € S B € e B e M )! |e w e e U e ) 8 to add the additional language as requested. (14 RT 2172-2173.) This waserror since neither the standard felony murderinstruction (CALJIC 8.21) nor the felony murder aider and abettor liability instruction (CALJIC 8.27) “covered the issue” raised by defense counsel. B. Standard of Review The applicable standard of review for instructional error has been set out in People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112: “A trial court must instruct the jury ‘on the law applicable to each particular case.” [Citations.] ‘[E]ven in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.’ [Citation.] Therefore, a claim that a court failed to properly instruct on the applicable principles of law is reviewed de novo. [Citations. ] In conducting this review, we first ascertain the relevant law and then ‘determine the meaningof the instructionsin this regard.’ [Citation.] § The propertest for judging the adequacyof instructions is to decide whether the trial court ‘fully and fairly instructed on the applicable law....’ [Citation.] ‘ “In determining whethererror has been committed in giving or not giving jury instructions, we must considerthe instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]”‘ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeatit if they are reasonably susceptible to such interpretation.’ [Citation.]” Cc. Appellant Was Entitled to Have CALJIC 8.21 Modified Since The Prosecution Was Required To Have Proved Beyond A Reasonable Doubt that Appellant Had an Independent Felonious Purposeto Commit the Attempted Robbery In Order For The Jury to Convict Appellant Under The Felony Murder Theory. A trial court mustinstruct the jury, even without a request, on all general principles -161- eosof law that are ‘closely and openly connectedto the facts and that are necessary for the jury's understanding of the case. [Citation.] In addition, a defendant has a right to an instruction that pinpoints the theory of the defense....”” (People v. Roldan (2005) 35 Cal.4th 646, 715.) Further, “[a] defendantis entitled to an instruction relating particular facts to any legal issue.” (People v. Sears, supra, 2 Cal.3d at p.190.) A pinpoint instruction relates particular facts to a legal issue in the case. (People v. Saille, supra, 54 Cal.3d 1103, 1119.) Upon request,a trial court must give instructions that pinpoint the theory of the defense, if the proposed instruction is supported by the evidence and neither highlights specific evidence noris argumentative. (People v. Earp (1999) 20 Cal.4th 826, 886.) What is pinpointed is not specific evidence as such, but the theory that supports a defense. It is the specific evidence on whichthe theory focusesthatis related to reasonable doubt. (People v. Adrian (1982) 135 Cal.App.3d 335, 338.) It has long been heldthat the first degree felony-murderrule is applicable to a homicide resulting from the perpetration or attempted perpetration of any of the felonies enumerated in Penal Code § 189, undertaken for felonious purpose independentof the homicide. (People v. Burton, supra, 6 Cal.3d at pp. 384-388, emphasis added.) The rationale for this rule is that commission of the felony must be the defendant's primary purpose in orderto rationally further the legislative objective of deterring killings which occuras a result of or during the commission of one of the enumerated felonies. Based on these principles, the defendant should not be held liable for felonies under Penal Code -162- section 189 if the primary intent wasto kill. In other words, the prosecution must prove beyond a reasonable doubtthat the defendant had an independent felonious purpose to commit one of the felonies enumerated in Penal Codesection 189.92’ Thetrial court has a duty to ensure the jurors were adequately informed on the law governingall elements of the case to the extent necessary to enable them to perform their function. (People v. Miller (1999) 69 Cal.App.4th 190, 207; People v. Reynolds (1988) 205 Cal.App.3d 776, 779.) Further, the trial court must give instructions on particular defenses and their relevance to the charged offense if the defendantis relying on such a defense or there is substantial evidence supportive of the defense andit is not inconsistent with the defendant’s theory of the case. (People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on other grounds in 19 Cal.4th 142, 165; People v. Barton (1995) 12 Cal.4th 186, 195.) Where,as here, the additional language requested focuses upon a theory which seeks to negate an element of the offense, then the instruction is a proper instruction which assists the jury. (See People v. Howard (1988) 44 Cal.3d 375, 442; People v. Wright (1988) 45 Cal.3d 1126, 1136-37; People v. Rincon-Pineda, supra, 14 Cal.3d 864, 885.) °° This is also true in order to find a felony murder special circumstance true for purposes of death eligibility. (See People v. Green, supra, 27 Cal.3d 1, 61-62 [applying the rule to felony murderspecial circumstancefindings]; see also Williams v. Calderon (9th Cir. 1995) 52 F.3d 1465, 1476 [independentfelonious purpose serves narrowing finding necessary for capital eligibility].) -163- The jury should havehad the benefit of the “independent felonious purpose” language which explained that the attempted robbery had to have been the goal of the incident, not just a ruse to accomplish the murderor simply an afterthought.Here, although one defense theory was misidentification, it was also that appellant had no motive to commit the charged crimes (14 RT 2289) and that the prosecution had the burden to prove beyond a reasonable doubt each and every element of those crimes. Defense counsel argued at guilt phase closing argument: But let me just tell you the important part. The People have the burden of proof, and that burden is beyond a reasonable doubt, as her honorhastold you. That proof must be beyond a reasonable doubt for the elements of the criminalactivity....” (14 RT 2305) The defense therefore was testing the prosecution’s case, not only as to identification, but as to all elements of the crimes as presented throughthe prosecution’s evidence. The prosecution not only presented evidence that appellant was one of the shooters, but also presented competing theories of liability regarding whether appellant sought to kill the victim and used the attempted robbery as a ruse to more easily do so, or ’ Appellant concedesthat the jury was instructed in CALJIC 8.27 asto the felony murder special circumstancethat the special circumstance “is not established if the attempted robbery was merely incidental to the commission of murder.” (5 CT 1147.) However, appellant maintains that the jury’s true finding of that special circumstance after having beenso instructed doesnot defeat his claim here since the jury was charged with deciding the substantive crimes before determining whetherthe special circumstances existed. Thus,it is possible that the error in omitting the “independent felonious purpose”language from the substantive felony murderinstruction tainted the jury’s later finding on the felony murderspecial circumstance. -164- if appellant sought to rob the victim but for whatever reason shot him instead. There was evidence that showed that appellant walked up to Encinas andsaid, “Do you want to go to sleep?”. When Encinasdid not answer, appellant stated: “Why are you quiet, I asked you a question?” As soon as Encinas got into his vehicle, appellant approached the driver’s door, pointed a gun at Encinas andstated: “Check yourself, check yourself, give me your wallet,” but before Encinas could retrieve his wallet, appellant shot and killed him and then left without taking anything from Encinas or from the vehicle. (3RT 406-407; 5 RT 699, 710.) Based on this evidence, the jury was left with the very relevant question of whether appellant ever really sought to rob Encinasat all. Interestingly, the prosecutor, who arguedat the guilt phase that it was “undisputed” that the murder occurred during the course of a robbery,later argued the opposite at the penalty phase — that appellant’s intent from the get-go was to murder. “He was goingto willful, deliberate and premeditated execute these two men, it was just a matter of when.” The prosecutor further argued at penalty phasethat appellant shot because “that was his mission to start with” and the crime occurred as follows: “So they walk over to eachside of the car and, hey, why notforfun,let’s get their wallets too, because their goal, we know, was to murder by ‘Do you wantto go to sleep?’ But let’s get their wallets while we’re at it.” (14 RT 2240; 20 RT 3199-3200.) In light of the evidencepresentattrial, the “independent felonious purpose” requirement for felony murder wascrucial for the jury to determine. It was error for the court to give CALJIC 8.21 in this case without the requested additional language. The instructional omission prevented the jurors from understanding the concept of felony -165- murder and instead allowed them to effectively ignore the requirementthat the murder must have happened in the course of an attempted robbery, not that the attempted robbery happened in the course of a murder. (See People v. Mendoza (2000) 24 Cal.4th 130, 182 [regarding finding required for felony murder special circumstance].) The jury was entitled to be adequately informed on the law regarding felony murder. As such, it should have been given to enable the jury to perform their function of delivering a fair and reliable determination of guilt. D. The Refusal To Give the Defense Requested Special Instruction No.1 Requires Reversal Since The Error Cannot Be Deemed Harmless Beyond a Reasonable Doubt. Thetrial court erred and violated appellant’s state and federal constitutional rights whenit refused to properly instruct the jury on felony murder. This error requires reversal since it cannot be said that the omission did not affect the verdict of guilt and thus cannot be found to be harmless beyond a reasonable doubt. (See People v. Harris (2008) 43 Cal.4th 1269, 1300.) Here, the evidence suggested that the perpetrators shot the victims while they sat in their cars and while they were preoccupied bya ruseto get their wallets. Nothing was taken. Even the prosecutor’s theory changed to reflect that attempted robbery was not the perpetrator’s intent.. “.. because their goal, we know, was to murder by ‘Do you wantto go to sleep?’ Butlet’s get their wallets while we’reat it.” (20 RT 3200.) -166- € s # B @ €2 82 € 3 € 3 8 € 8 B F S B F S € e 8 e e e e Oe e h U e a l m s hUme 8 Underthese circumstances it was absolutely imperative that the jurors be properly instructed on the correct principles of felony murder. Without an instruction requiring that appellant had an independent purpose in committing the attempted robbery, in addition to specific intent, the jury did not have an understandingthat if the attempted robbery wasindeed ruse,as the prosecution argued at penalty phase, there could be no felony murder conviction, even if appellant decided to try and get Encinas wallet “while [they were] at it.” Therefore, there is a reasonable probability that had the pinpoint instruction been given and counselbenable to argue its applicability to felony murder, the jury would have found appellant not guilty of felony murder. Moreover,the instructional error caused a fundamentally unfair guilt phasetrial. Finally, under both the due process clause and the Eighth Amendment, state,if it elects to utilize capital punishment, must do so in an evenhandedfashion,on the basis of consistently applied standards. (Eddings v. Oklahoma (1982) 455 U.S. 104, 112 [noting the requirementthat capital punishmentis “imposed fairly, and with reasonable consistency, or notat all”].) To routinely expect juries to convict on felony murder only whenthere is proof beyond a reasonable doubt of an independent felonious purposefor the underlying felony, yet not assign error when the instruction stating such is refused,is inconsistent and violative of due process, the Eighth Amendment, and deprives appellant of his right to present a defense. -167- XI. A SERIES OF GUILT PHASE INSTRUCTIONS UNDERMINED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT,IN VIOLATION OF APPELLANT?’S RIGHTS TO DUE PROCESS ANDA FAIR TRIAL, TRIAL BY JURY, AND RELIABLE VERDICTS. A. Introduction Here,the trial court instructed the jury with a series of standard CALJIC instructions which individually and collectively violated the aboveprinciples, and thereby deprived appellant of his constitutional rights to due process,a fair trial, and trial by jury. (U.S. Const., 5th, 6th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16.) These instructions also violated the fundamental requirementforreliability in a capital case by allowing appellant to be convicted without the prosecution having to present the full measure of proof. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, § 17.) Appellant recognizes that this Court has previously rejected many of these claims. Nevertheless, he raises them here in order for the Court to reconsider those decisions, and in order to preserve these claims for federal review,if necessary. B. Standard of Review The standard of review for instructional error is whether the instructions as a whole were reasonably likely to mislead the jury. (People v. Cornwell (2005) 37 Cal.4th 50, 89; People v. Cole (2004) 33 Cal.4th 1158, 1212; People v. Catlin (2001) 26 Cal.4th 81,151.) The federal Constitution's Fifth Amendment right to due process and Sixth Amendmentright to jury trial, made applicable to the states through the Fourteenth -168- Amendment, require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; see Sullivan v. Louisiana, supra, 508 U.S. 275, 277-278.) Because both individually and as a whole the instructions violated the federal Constitution in a manner that can never be “harmless,” the judgmentin this case must be reversed. (/d. at p. 279.) C. The Defective CALJIC Instructions Given in The Guilt Phase Undermined the Requirement of Proof Beyond a Reasonable Doubt. Due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with whichhe is charged.” (/n re Winship, supra, 397 U.S. 358, 364; Cage v. Louisiana (1990) 498 U.S. 39, 39-40; People v. Roder (1983) 33 Cal.3d 491, 497.) The reasonable doubt standard is the “bedrock ‘axiomatic and elementary’ principle” Un re Winship, supra, at p. 363) at the heart of the right to trial by jury (Sullivan v. Louisiana, supra, 508 U.S. 275, 278). Jury instructions violate these constitutional requirementsif “there is a reasonable likelihood that the jury understood [them] to allow conviction based on proof insufficient to meet the Winship standard” of proof beyond a reasonable doubt. (Victor v. Nebraska, supra, 511 U.S. 1, 6.) 1. The Instructions on Circumstantial Evidence under CALJIC Nos. 2.01 and 2.02 Undermined the Requirementof Proof Beyond a Reasonable Doubt. The jury was instructed with CALJIC Nos. 2.01 and 2.02 that if one interpretation -169- of the evidence “appears to you to be reasonable, and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” (5 CT 1101-1102; 14 RT 2188-2191.) These instructions effectively informed the jurors that if appellant reasonably appearedto be guilty, they could find him guilty - even if they entertained a reasonable doubtas to guilt. This twice-repeated directive underminedthe reasonable doubt requirement in two separate but related ways, violating appellant’s constitutional rights to due process (U.S. Const., 5th & 14th Amends.; Cal. Const.,art. I, §§ 7, 15), trial by jury (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16), anda reliable capital trial (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, § 17). (See Sullivan v. Louisiana, supra, 508 U.S.at p. 278; Carella v. California (1989) 491 U.S. 263, 265; Beck v. Alabama, supra, 447 U.S. 625, 638.) First, the instructions compelled the jury to find appellant guilty of murder and to find the special circumstancesto be true using a standard lower than proof beyond a reasonable doubt. The instructions directed the jury to convict appellant based on the appearance of reasonableness: the jurors were told they “must” accept an incriminatory interpretation of the evidenceif it “appear[ed]” to be “reasonable.” (5 CT 1101-1102; 14 RT 2188-2191.) An interpretation that appears reasonable, however,is not the same as the “subjective state of near certitude” required for proof beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. 307, 315; see Sullivan v. Louisiana, supra, 508 U.S. at p. 278 [“It would not satisfy the Sixth Amendmentto have a jury determine that the -170- defendantis probably guilty.”].) Thus, the instructions improperly required conviction on a degree of proof less than the constitutionally required standard of proof beyond a reasonable doubt. Second, the circumstantial evidence instructions required the jury to draw an incriminatory inference whensuchaninference appeared “reasonable.” In this way, the instructions created an impermissible mandatory inference that required the jury to accept any reasonableincriminatoryinterpretation of the circumstantial evidence unless appellant rebutted it by producing a reasonable exculpatory interpretation. Mandatory presumptions, even onesthat are explicitly rebuttable, are unconstitutional if they shift the burden of proof to the defendant on an element of the crime. (Francis v. Franklin, supra, 471 U.S. 307, 314-318; Sandstrom v. Montana, supra, 442 U.S. 510, 524.) Here,the instructions plainly told the jurors that if only one interpretation of the evidence appeared reasonable, “you must accept the reasonable interpretation and reject the unreasonable.” (5 CT 1101-1102; 14 RT 2188-2191.) In People v. Roder, supra, 33 Cal.3d at page 504, this Court invalidated an instruction that required the jury to presume the existence of a single element of the crime unless the defendant raised a reasonable doubt as to the existence of that element. This Court likewise should invalidate the instructions given in this case, which required the jury to presumeall elements of the crimes supported by a reasonable interpretation of the circumstantial evidence unless the defendant produced a reasonable interpretation of that evidence pointing to his innocence. -171- The instructions had the effect of reversing, or at least significantly lightening, the burden of proof, since they required the jury to find appellant guilty unless he came forward with evidence reasonably explaining the incriminatory evidence put forward by the prosecution. The jury may have found appellant’s defense unreasonable butstill have harboredserious questions about the sufficiency of the prosecution’s case. Nevertheless, underthe erroneousinstructions, the jury was required to convict appellant if he “reasonably appeared” guilty of murder, even if the jurors still entertained a reasonable doubt of his guilt. The instructions thus impermissibly suggested that appellant was required to present, at the very least, a “reasonable” defense to the prosecution case when, in fact, “[t]he accused has no burden of proofor persuasion, even as to his defenses.” (People v. Gonzales (1990) 51 Cal.3d 1179, 1214-1215, citing In re Winship, supra, 397 U.S. at p. 364, and Mullaney v. Wilbur (1975) 421 U.S. 684.) For these reasons,there is a reasonable likelihood that the jury applied the circumstantial evidence instructionsto find appellant guilty under a standard that was less than the federal Constitution requires. 2. The Instructions Pursuant to CALJIC Nos. 2.21.1, 2.21.2, 2.22, 2.27, and 8.20 Undermined the Requirement of Proof Beyond a Reasonable Doubt. Thetrial court gave five other standard instructions which magnified the harm arising from the erroneous circumstantial evidence instructions, and individually and collectively diluted the constitutionally mandated reasonable doubtstandard: CALJIC -172- a o e o e 4 Ps No. 2.21.1 (Discrepancies in Testimony), CALJIC No. 2.21.2 (Wilfully False Witnesses), CALIJIC No. 2.22 (Weighing Conflicting Testimony), CALJIC No. 2.27 (Sufficiency of Testimony of One Witness), and CALJIC No. 8.20 (Deliberate and Premeditated Murder). (5 CT 1110-1113, 1134; 14 RT 2194-2196, 2212-2213.). Each of these instructions, in one way or another, urged the jury to decide material issues by determining which side hadpresented relatively stronger evidence. By doing so, the instructions implicitly replaced the “reasonable doubt” standard with the “preponderance of the evidence”test, and vitiated the constitutional prohibition against the conviction of a capital defendant upon anylesser standard of proof. (See Sullivan v. Louisiana, supra, 508 U.S.at p. 278; Cage v. Louisiana, supra, 498 U.S.at pp. 39-40; In re Winship, supra, 397 U.S. at p. 364.) CALJIC Nos. 2.21.1 and 2.21.2 lessened the prosecution’s burden of proof by authorizing the jury to reject the testimony of a witness “willfully false in one material part of his or her testimony” unless, “from all the evidence, [they believed] the probability of truth favors his or her testimony in other particulars.” (5 CT 1111; 14 RT 2195.) These instructions lightened the prosecution’s burden of proof by allowing the jury to credit prosecution witnesses if their testimony had a mere “probability of truth.” The essential mandate of Winship and its progeny — that each specific fact necessary to prove the prosecution’s case must be proven beyond a reasonable doubt — is violated if any fact necessary to any element of an offense can be proven by testimony that merely appeals to -173- the jurors as more “reasonable,” or “probably true.” (See Sullivan v. Louisiana, supra, 508 U.S. at p. 278; In re Winship, supra, 397 U.S. at p. 364.) CALJIC No. 2.22 instructed the jurors: You are not bound to decide an issue of fact in accordance with the testimony of a number of witnesses which does not convince you as against the testimony of a lesser numberor other evidence which appeals to your mind with more convincing force. You maynotdisregard the testimony of the greater number of witnesses merely from caprice, whim orprejudice or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses who have testified on the opposing sides. The final test is not in the relative number of witnesses, but in the convincing force of the evidence. (5 CT 1112; 14 RT 2195-2196.) This instruction specifically directed the jury to determine each factual issue in the case by deciding which version of the facts was more credible or more convincing. Thus, the instruction replaced the constitutionally mandated standard of “proof beyond a reasonable doubt” with one indistinguishable from the lesser “preponderanceof the evidence standard.” As with CALJIC Nos. 2.21.1 and 2.21.2, the Winship requirement of proof beyond a reasonable doubtis violated by instructing that any fact necessary to any element of an offense could be proven by testimony that merely appealed to the jurors as having somewhatgreater “convincing force.” (See Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-278; In re Winship, supra, 397 U.S. at p. 364.) CALJIC No. 2.27, regarding the sufficiency of the testimony of a single witness to -174- prove a fact (5S CT 1113; 14 RT 2196), was likewise flawed. The instruction erroneously suggested that the defense, as well as the prosecution, had the burden of proving facts. The defendant, however, is only required to raise a reasonable doubt aboutthe prosecution’s case, and cannotbe required to establish or prove any “fact.” (See People v. Serrato (1973) 9 Cal.3d 753, 766.) Finally, CALJIC No. 8.20, which defines premeditation and deliberation, misled the jury regarding the prosecution’s burden of proof. The instruction told the jury that the necessary deliberation and premeditation “must have been formed upon pre-existing reflection and not under a suddenheatof passion or other condition precluding the idea of deliberation. ...” (5 CT 1134; 14 RT 2212-2213.) In that context, the word “precluding” could be interpreted to require the defendantto absolutely eliminate the possibility of premeditation, as opposed to raising a reasonable doubt. (See People v. Williams (1969) 71 Cal.2d 614, 631-632 [recognizing that “preclude” can be understood to mean ace absolutely prevent’”].) “Tt is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” (/n re Winship, supra, 397 U.S. at p. 364.) Each of the disputed instructions here individually served to contradict and impermissibly dilute the constitutionally mandated standard under whichthe prosecution must prove each necessary fact of each element of each offense “beyond a reasonable doubt.” In the face of so manyinstructions permitting -175- conviction upon a lesser showing, no reasonable juror could have been expected to understand that he or she could not find appellant guilty unless every elementof the offenses was proven bythe prosecution beyond a reasonable doubt. The instructions challenged here violated appellant’s constitutional rights to due process and fairtrial (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15), trial by jury (U.S. Const., 6th & 14th Amends.; Cal. Const., art. J, § 16), and a reliable capital trial (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, § 17). 3. This Court Should Reconsider Its Prior Rulings Upholding the Defective Instructions. Although each of the challenged instructions violated appellant’s federal constitutional rights by lessening the prosecution’s burden, this Court has repeatedly rejected constitutional challenges to manyof the instructions discussed here. (See e.g., People v. Cleveland (2004) 32 Cal.4th 704, 750-751; People v. Riel (2000) 22 Cal.4th 1153, 1200; People v. Crittenden (1994) 9 Cal.4th 83, 144; People v. Noguera (1992) 4 Cal.4th 599, 633-634; People v. Jennings (1991) 53 Cal.3d 334, 386.) While recognizing the shortcomings of someof these instructions, this Court has consistently concluded (1) that the instructions must be viewed “as a whole,” and when so viewedthe instructions plainly mean that the jury should reject unreasonable interpretations of the evidence and give the defendant the benefit of any reasonable doubt, and (2) that jurors are not misled whentheyare also instructed with CALJIC No. 2.90 regarding the presumption of -176- innocence. This Court’s analysis is flawed. First, what this Court characterizes as the “plain meaning”ofthe instructions is not whatthe instructions say. (See People v. Jennings, supra, 53 Cal.3d at p. 386.) The question is whether there is a reasonable likelihood that the jury applied the challenged instructions in a waythat violates the federal Constitution (Estelle v. McGuire (1991) 502 U.S. 62, 72), and there certainly is a reasonable likelihood that the jury applied the challenged instructions according to their express terms. Second,this Court’s rationale — that the flawed instructions are “saved” by the language of CALJIC No. 2.90 — requires reconsideration. (See People v. Crittenden, supra, 9 Cal.4th at p. 144.) An instruction that dilutes the beyond-a-reasonable-doubt standard of proof on a specific point is not cured by a correct general instruction on proof beyond a reasonable doubt. (United States v. Hall (Sth Cir. 1976) 525 F.2d 1254, 1256; see generally Francis v. Franklin, supra, 471 U.S. at p. 322 [“Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolvethe infirmity.”]; People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1075, citing People v. Westlake (1899) 124 Cal. 452, 457 [if an instruction states an incorrect rule of law, the error cannot be cured by giving a correct instruction elsewherein the charge]; People v. Stewart (1983) 145 Cal.App.3d 967, 975 [specific jury instructions prevail over general ones].) “It is particularly difficult to overcome the prejudicial effect of a misstatement when the bad instruction is specific and the supposedly curative instruction -177- is general.” (Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 395.) Furthermore, nothing in the challenged instructions, as they were given in this case, explicitly told the jurors that those instructions were qualified by the reasonable doubtinstruction. It is just as likely that the jurors concluded that the reasonable doubt instruction was qualified or explained by the other instructions which contain their own independent references to reasonable doubt. D. Appellant’s Conviction Must Be Reversed Since The Instructions Undermined the Requirement of Proof Beyond a Reasonable Doubt Constituting Structural Error. Because the erroneous instructions described above allowed conviction on a standard of proof less than proof beyond a reasonable doubt, giving these instructions was a Structural error that is reversible per se. (Sullivan v. Louisiana, supra, 508 US.at pp. 280-282.) And, even if the harmless-error standard were applicable, these instructions violated appellant’s federal constitutional rights and, thus, reversal is required unless the state can showthat the error was harmless beyond a reasonable doubt. (See Carella v. California, supra, 491 U.S. at pp. 266-267.) The prosecution cannot make that showing here for all of the reasons discussed above. Accordingly, the dilution of the reasonable-doubt requirement by the guilt phase instructions must be deemedreversible, and appellant's murder convictions, special circumstance findings, and death sentence must be reversed. H -178- @ 3 2 e S e e S e ee e e e e e e e e e e e e e e e e XII. REVERSAL OF APPELLANT’S CONVICTIONSIS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS THAT COLLECTIVELY UNDERMINED THE FUNDAMENTALFAIRNESS OF THE GUILT PHASE AND THE RELIABILITY OF THE VERDICTSOF GUILT. Even where nosingle error in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may be so harmful that reversal is required. (See Parle v. Runnels (9th Cir. 2007) 505 F.3d 922, 927, citing Chambersv. Mississippi (1973) 410 U.S. 284, 298 [“The Supreme Court has clearly established that the combined effect of multiple trial court errors violates due process where it renders the resulting criminal trial fundamentally unfair”]; People v. Hill, supra, 17 Cal.4th 800, 844- 848 [reversing entire judgment in capital case due to cumulative error]; see also Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [addressing claim that cumulative errors so infected “the trial with unfairness as to make the resulting conviction a denial of due process”’].) Reversal is required unless it can be said that the combinedeffect ofall the errors, constitutional and otherwise, was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. 18, 24; People v. Williams (1971) 22 Cal.App.3d 34, 58-59 [applying Chapmanstandardto the totality of the errors whenerrors of federal constitutional magnitude combined with othererrors].) In appellant’s case, each of the guilt phase errors, standing alone, was sufficient to undermine the prosecution’s case andthereliability of the jury’s ultimate verdict, and -179- none can properly be found harmless beyond a reasonable doubt. (See Sullivan v. Louisiana, supra, 508 U.S. 275, 278-282; Chapman v. California, supra, 386 U.S.at p. 24.) These errors, viewed separately or in any combination, deprived appellant of his state and federal constitutional rights to a fair trial, due process, to present a defense,trial by jury and a reliable determination of guilt. (U.S. Const., Sth, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15-17, 24; Johnson v. Mississippi (1988) 486 U.S. 578, 584-585; Caldwell v. Mississippi, supra, 472 U.S. 320, 330-331; Beck v. Alabama, supra, 447 U.S. 625, 637-638; People v. Brown (1988) 46 Cal.3d 432, 448.) Because the cumulative effect of these errors so infected appellant’s trial with unfairness as to make the resulting conviction a denial of due process, appellant’s convictions must be reversed. (Donnelly v. DeChristoforo, supra, 416 U.S. at 643; People v. Holt (1984) 37 Cal.3d 436, 459 [reversing capital murder conviction for cumulative error].) Accordingly, theses errors considered cumulatively establish a violation of appellant’s right to a fair trial, and the convictions and special circumstancesfindings must be reversed. // // -180- B XU. THE TRIAL COURT ERRONEOUSLY ALLOWED THE PROSECUTOR TO ELICIT IRRELEVANT AND PREJUDICIAL GANG EVIDENCE DURING THE PENALTY PHASEIN VIOLATION OF APPELLANT’S STATE A FEDERAL CONSTITUTIONAL RIGHTS. A. Introduction The improper admission of the gang evidenceviolated appellant’s state and federal constitutional rights to due process,a fair trial and a reliable guilt and penalty phase determination. (U.S. Const., 5th, 8th & 14th Amends.; Cal. Const., art I, §§ 7, 15, 17, 24.) The crimes in this case were notalleged to be gang related, and during jury selection the prosecutor informed the court and defense attorneys that she would not present any gang evidence duringtrial. (2 RT 266, 3 RT 358.) The prosecutor said there were indications that both appellant and Mora were gang members, but that she would admonishher witnesses not to mention this. (3 RT 358.) Based on the prosecutor’s representations, the attorneys for both appellant and Moradid not voir dire the potential jurors on their views towards gangs and gang members. (See 8 RT 1246-1249.) Later, after the guilt trial, the court and attorneys discussed the evidence that would bepresented at the penalty trial. (16 RT 2475-2495.) The prosecutorsaid that included in the aggravating evidence she would present against appellant was his conviction for an automobile burglary. (16 RT 2478-2479.) The prosecutor said she intended to present evidence that during the burglary, appellant spray- painted “KCC”on -181- the hood of the vehicle, and when confronted by the ownerof the vehicle, threatened to kill him if he went to the police. (16 RT 2479, 2483.) The prosecutor said she would present evidence that KCC stands for “King City Criminals,” whichis a street gang, and that this added to the victim’s fear by informing the victim that appellant was a gang member. (16 RT 2483.) Over appellant’s objection, the court ruled this evidence was admissible. (/bid.) In the prosecutor’s penalty case against appellant, a sheriff’s deputy Kevin Hilgendorftestified that during the automobile burglary, appellant spray-painted the letters “KCC”on the front of the vehicle, and that appellant and his accomplice in the crime told the owner of the vehicle that if he called the police, “they would kill him because they knew where he lived.” (16 RT 2558-2560, 2567.) Hildgendorftestified that “KCC”is the initials of a street gang named the “King City Criminals,” and that the ownerofthe vehicle took the threat seriously because he knew appellant and his accomplice were gang members. (16 RT 2569-2570, 2582-2583.) The prosecutor elicited testimony aboutthis incident from the ownerof the vehicle who, prompted bythe prosecutor, told the jurors that he expressed concernsto the prosecutor that appellant’s “friends” would be in the courtroom during his testimony. (16 RT 2527.) The owner of the vehicle further testified that as a result of the incident, he moved to a new home. (16 RT 2550.) Jose Jimenez, who became acquainted with appellant through a Bible study group, -182- testified on behalf of appellant. He testified that appellant attended church andbible study with his mother andsister between 1989 and 1992.Duringhis testimony, Jimenez, in response to an inquiry by defense counsel regarding how he felt when he heard that appellant was charged with murder, answered, “It seemed to me it was out of his character. The character that I knew Ruben to be. It didn’t seem that that would fit his character.” (18 RT (18 RT 2815-2819.) During cross-examination, Jimenez clarified that it was out of character “from the person I knew Ruben(sic) during this time frame...” (18 RT 2821.) However,at a sidebar conference, the prosecutor claimed that Jimenez’s response “opened the door”for her to inquire about appellant’s gangaffiliation™’, and asked the court to allow her to inquire whether gang membership would be consistent with the character that Jimenez claimed to know. (18 RT 2823.) Defense counsel objected, but the court overruled the objection, stating, “[T]he subject camein, not necessarily in response to a question as you phrased it. But the door is open, and I think the people are entitled to inquire. (18 RT 2823-2827.) Defense counsel then introduced the issue that there had yet to be any evidence n The crimes occurred in August 1997. ” The prosecutor was again admonished to “lower your voice” during the sidebar when arguing: “Your honor, I think by the word “character” coming out, “it would be out of character,” I could also ask him about his gang affiliation, if he was aware that he was in a gang,and if he wasin a gang, would that change his opinion of his character. I have — at lunchtime I ran the Gang-Cal search,and I have....” (18 RT 2822.) -183- offered with respect to gang membership,and so a hypothetical would be inappropriate. (18 RT 2828.) The court replied that it would merely be an inquiry into the witness’s knowledge,and that based on the prosecution’s representations, there existed a good faith belief that there is gang membership claimed byappellant such that inquiry regarding the witness’s knowledge about that behaviororaffiliation was justified. (18 RT 2828.) The court took the matter even further and stated that the prosecution would beentitled to bring in the information during rebuttal. (18 RT 2828.) Overrepeated objections by defense counsel, the prosecution was allowedto inquire of Jimenez regarding his knowledge of appellant’s gangaffiliation and activities. (18 RT 2829-2832, 2837.) Prosecutor: Ms.Trotter: The Court: The Witness: Prosecutor: Ms.Trotter: The Court: The Witness: Prosecutor: Ms.Trotter: The Court: The Witness: Prosecutor: Mr. Jimenez, are you aware of the defendant’s characterasit relates to gang membership? Objection. That’s vague. Overruled. Can you elaborate on the question a little more? Are you aware that Ruben Rangel is in a gang? Objection, That assumesfacts not in evidence. Overruled. I — I never perceived Ruben as a gang member. Would your opinion of Mr. Rangel change if you knew he claimed a gang. Objection. That assumes facts not in evidence. Overruled. Yes. So if you were to find out that he was in a gang, would you then question if you really knew the true Ruben Rangel? -184- e e i s The Witness: Prosecutor: Ms. Trotter: The Court: Prosecutor: Ms.Trotter: The Court. The Witness: Prosecutor: The Witness: Prosecutor: The Witness: Ms.Trotter: The Court: The Witness: Prosecutor: The Witness: Prosecutor: Ms. Trotter: The Court: The Witness: Prosecutor: The Witness: Prosecutor: The Witness: No. Well, you just said that your opinion would be different if you knew he claimed a gang. Objection to the form of the question — its argumentative. Sustained — rephrase. Would you be surprised to learn that Ruben Rangel wasin a gang. Objection. Assumesfacts not in evidence. Overruled. No, I wouldn’t. Did hetell you he wasin a gang. No,he did not. But you said he wasn’t a character to do certain things. And with that in mind, you knew he wasin a gang;is that what youaretelling us? No. Objection. That misstates the testimony. Overruled. We,as a church — we,as a church, we workonthe heart, and today I can speak of the heart of Ruben. And that’s what I refer to as the “character”. Okay. When you speak of Ruben’s heart, would you picture it inside a gang member? Notat the time I knew Ruben, No. So if I told you he was a gang member, would that surprise you? Objection. That’s vague asto time. Overruled. I would not have thought he would be in a gang. To my knowledge, whenI knew Ruben, to my knowledge he wasnot associated with any gang. To your knowledge? To my knowledge. Would your opinion of him, what you stated earlier, change if you knew he was in a gang? No. -185- Prosecutor: Your opinion would remain the same? The Witness: Yes. (18 RT 2829-2832.) On re-cross, the prosecutor asked Jimenezif his opinion of appellant’s character would change if he knew that appellant had spray painted “KCC” on a car’ and whetherthat would surprise him. Jimenezstated that “it would be surprising.” The prosecutor then asked Jimenez “He never showedthatside of himself to you?” and Jimenez responded: “No.” (18 RT 2837.) The prosecution later called police officer Andrew Zembal to further rebut appellant’s mitigating evidence of his good character. Officer Zembal testified that he is “a world renowned expert on gang graffiti and gangs,” and that “KCC”stands the “King City Criminals.” (20 RT 3078-3079.) Zembal told the jurors that the “King City Criminals”started as a tagging crew involved in graffiti. (20 RT 3079.) According to Zembal, as a result of a 1992 triple homicide involving three KCC members, and a 1994 order handed downbythe jailed leaders of numerousstreet gangs who metto resolve various gang matters, the King City Criminals becamea full-fledged criminalstreet gang whose memberscarry guns and commit serious offenses, including murder. (20 RT 3079- 3081.) Zembaltestified that law enforcement agenciesare able to determine whether an - Defense counsel objected that the question was “beyondthe scope of redirect. Thetrial court overruled the objection. (18 RT 2837.) -186- € s a € R B E£ €R B € B E R B E R D E B D E R B R E S E € B E B individual is a gang memberbythe waytheydress, their tattoos, and who they associate with. (20 RT 3083, 3085.) Zembalalso testified that gang members have monikers or “gang name[s],” such as appellant’s moniker “Stranger” (20 RT 3086), and that having a shaved head is a “wayof recognition” amongcertain street gangs, including the King City Criminals.” (20 RT 3094.) Zembal furthertestified that he had examined appellant’s tattoos (20 RT 3089; see 20 RT 3074), and he described those tattoos to the jury, which includedtattoos that identified appellant as a memberof the “King City Criminals.” (20 RT 3090-3094.) Zembalsaid he could tell from appellant’s shaved head andtattoos that appellant was a “gang memberof a hard-core nature,” and that his tattoos and gang membership signified someone with a “wanton disregard or disrespectforlife itself.” (20 RT 3094-3096.) Defense counsel requested a limiting instruction be given stating that gang membership is not a crime and cannot be considered as aggravation. (20 RT 3140-3141, 3145.) The court refused the limiting instruction stating that although the evidence was admitted only to refute evidence of appellant’s good character, the jury would not be so instructed. (20 RT 3148-3149.) ™ Throughouttrial, appellant and Mora were repeatedly referred to by the monikers “Stranger” and Joker, respectively. (See, e.g., 1 CT 2-3; 8 RT 1261 [audio tapes of Lourdes Lopez’s police interviewsplayedattrial]; 6 RT 847.) -187- B. Standard of Review This Court reviews any ruling by a trial court on the admissibility of evidence for an abuseof discretion. (People v. Waidla, supra, 22 Cal.4th at p. 724.) This standard is applicable both to a trial court's determination of the relevance of evidence as well asits determination under Evidence Code section 352 of whether the evidence's probative value is substantially outweighedbyits prejudicial effect. (See, e.g., People v. DeJesus, supra, 38 Cal.App.4th 1, 32-33.) “Theissue of the relevance of evidenceis left to the sound discretion of the trial court, and the exercise of that discretion will not be reversed absent a showing of abuse. [Citations.] That discretion is only abused wherethereis a clear showing the trial court exceeded the boundsof reason,all of the circumstances being considered. [Citations.]” (/bid.; People v. Cudjo, supra, 6 Cal.4th 585, 609.) The abuse of discretion standard applies equally when the issue is the admission of gang evidence. (People v. Champion, supra, 9 Cal.4th 879, 922; People v. Sandoval, supra, 4 Cal.4th 155, 175.) Moreover, whereashere,“[w]hen evidence has been erroneously receivedat the penalty phase, this court should reverse the death sentenceifit is ‘the sort of evidence that is likely to have a significant impact on the jury's evaluation of whether defendant should live or die.’[Citation.]” (People v. Danielson (1992) 3 Cal.4th 691, 738.) -188- 4 4 2 q _ E g a C 4 3 a 3 a 2 % % E F 4 P d y e OF The Death Judgment Must Be Reversed Because The Defense Detrimentally Relied on the Court and Prosecution’ Representations That No Such Evidence Would Be Admitted In Omitting The Subject of Gangs From The Jury Questionnaire and Voir Dire. Because the defense relied upon the prosecutor’s representations that she would not present any gang evidence during trial (2 RT 266; see 3 RT 358) and, based on those representations, did not voir dire the jurors on their views towards gangs and gang members (see 8 RT 1246-1249), this error violated appellant’s right under the Sixth and Fourteenth Amendments to a reliable verdict by an impartial jury. (Morgan vy. Illinois, supra, 504 U.S. 719, 729 [“part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors.”]; id. at p. 736 [“Therisk that. . . jurors [who were notimpartial] may have been empaneledin this case and ‘infected petitioner’s capital sentencing [is] unacceptable’”].) Likewise, because the right to an impartial jury guarantees voir dire that will allow a criminal defendant’s counsel to identify unqualified jurors and exercise peremptory challenges(id. at pp. 729-730), this error further violated appellant’s Sixth Amendment guarantee to the effective assistance of counsel. During voir dire, the court asked the prosecutor whether there was “any gang evidence that you will elicit in this case?” The prosecutor responded: “Not that I know of.” (2 RT 266.) Based on the prosecutor’s representations, the gang section of the jury questionnaire was deleted and attorneys for both appellant and Mora did not voir dire the -189- potential jurors on their views towards gangs and gang members. (2 RT 266; 8 RT 1246- 1249.) Here, counsel argued previously during the guilt phase that had they knownthat gang evidence was going to be admitted they would have handled voir dire differently. Further, at least one seated juror said it would makea difference to her whether the defendants were gang members.(8 RT 1246-1248.) D. The Death Judgment Must Be Reversed, Becausein Violation of State and Federal Law,the Trial Court Erroneously Allowed the Prosecutor to Elicit Irrelevant and Prejudicial Gang Evidence During the Penalty Phase. Generally, evidence is deemed relevant and thus admissible if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.) When it comes to gang evidence, however, and in particular gang evidence offered in the penalty phase of a capital trial, the Court requires a higher degree of relevancy than just “any tendency”to prove a disputed fact. Because evidencethat a criminal defendant is a member ofa. .. gang may have a highly inflammatory impact on the jury, trial courts should carefully scrutinize such evidence before admitting it. Such evidence should not be admitted if only tangentially relevant because of the possibility that the jury will improperly . . . jump to the conclusion the defendant deservesthe death penalty. (People v. Gurule, supra, 28 Cal.4th 557, 653, internal citations and quotation marks omitted; see also People v. Cox, supra, 53 Cal.3d 618, 660 [“we have condemnedthe introduction of evidence of gang membershipif only tangentially relevant, given its -190- highly inflammatory impact.”].) Such careful scrutiny did not occur here. The crimes committed in this case were not alleged to be gang related. Indeed, as recognized by the United States Supreme Court, evidence of defendant’s mere membership in a gang, whichessentially is what Zembal’s testimony established,is irrelevant in a capital sentencing proceeding where, as here, it fails to prove an aggravating circumstance or rebut mitigating evidence. (Dawson v. Delaware (1992) 503 U.S. 159, 166-168.) Moreover, even if appellant’s spray painting “KCC” could be deemed a circumstance of the vehicle burglary (see People v. Gurule, supra, 28 Cal.4th at p. 654, citing People v. Scott (1997) 15 Cal.4th 1188, 1219 [prosecution may present evidence showing the circumstancesof the prior violent criminal activity]), this evidence wasat best only tangentially relevant to the issue of whether appellant should live or die. The prosecutor expressly stated that she had no guilt or penalty phase evidence of appellant’s gang membershiporactivity except for the spray painting, and there was no evidencethat the instant charged crimes were gang-related. Because this gang evidence was at most only superficially related to the jurors’ penalty determination, the trial court abusedits discretion when it overruled appellant’s objection and allowedthe jurors to hearit. (People v. Gurule, supra, 28 Cal.4th at p. 653; People v. Cox, supra, 53 Cal.3d at p. 660; see also People v. Hernandez, supra, 33 Cal.4th 1040, 1049 [“In cases not involving the gang enhancement, we haveheld that evidence of gang membershipis potentially -191- prejudicial and should not be admitted if its probative value is minimal.”].) Moreover,the trial court erred in finding that appellant had “opened the door” to additional gang evidence. Pursuant to Evidence Codesection 780, subdivision(I), a trial court may admit otherwise inadmissible evidence for impeachment purposesto prove or disprove the existence or nonexistence of a fact about which a witnesshastestified or opened the door. However, this evidenceis still subject to Evidence Codesections 210 and 352 exclusion if found to be irrelevant or more prejudicial than probative. Such should have been the case here. The improper admission of the gang evidencein the penalty phase violated appellant state and federal rights. Although a state court’s evidentiary errors do not, standing alone, violate the federal Constitution, state law errors that rendera trial fundamentally unfair violate the Due Process Clause of the Fourteenth Amendment. (Romanov. Oklahoma, supra, 512 U.S. 1, 12.) That is the case here, where this gang evidence served no legitimate purpose, and where,as described below,the prejudicial effect of this gang evidence wassuchthat it could only have influenced the jurors’ decision by inflaming them to a degree that infected the sentencing proceeding with unfairness. Additionally, the mere fact that appellant is a gang member, whethertrue or not, wasirrelevant to the jurors’ sentencing determination. (Dawson v. Delaware, supra, 503 U.S. 159, 166-168.) Evidence of appellant’s gang membership nevertheless was wrongly -192- ’ S e ¢ « 2 F e e w e n r e s e e F e e e e l e ) injected into jurors penalty decision, thereby creating a dangerthat the jurors used appellant’s gang membershipas a basis for sentencing him to death. (See Johnson v. Mississippi, supra, 486 U.S. at pp. 584-585, quoting Zant v. Stephens (1982) 462 U.S. 862, 884-885, 887, fn. 24 [death penalty cannot be predicated on “factors that are... irrelevant to the sentencing process’”’].) That risk further renders this trial fundamentally unfair, and violated appellant’s Eighth and Fourteenth Amendmentrights to a fair and reliable penalty trial and death sentence, based on a properconsideration of relevant sentencing factors, and undistorted by improper aggravation. (Johnson v. Mississippi, supra, 486 U.S. at pp. 584-585; see also Penry v. Lynaugh (1989) 492 U.S. 302, 328, quoting Lockett v. Ohio (1978) 438 U.S. 586, 605 [circumstances creating a risk that a death sentence will be erroneously imposed “unacceptable and incompatible with the commandsof the Eighth and Fourteenth Amendments.”]; Mills v. Maryland (1988) 486 U.S. 367, 376 [Eighth and Fourteenth Amendments demand “even greater certainty” that the jury’s death penalty determination rested on proper grounds].) As recognized by the Court, evidence of a defendant’s gangaffiliation has an inflammatory and prejudicial effect on jurors. (People v. Kennedy, supra, 36 Cal.4th 595, 624; People v. Gurule, supra, 28 Cal.4th at p. 653.) The Court of Appeal has reached the same conclusion, noting that in Los Angeles County, where this case wastried, just the 29 66word “gang” “connotes opprobrious implications” and “takes on a sinister meaning[.]” -193- (People v. Albarran, supra, 149 Cal.App.4th 214, 57 Cal.Rptr.3d 92, 99; People v. Maestas, supra, 20 Cal.App.4th 1482, 1497; People v. Perez, supra, 114 Cal.App.3d 470, 479.) The risk that gang evidence will inflame and prejudice a jury’s verdict is even more acute in the penalty phase ofa capital trial, where jurors are expected to apply their own moralstandards to the evidence (People v. Mendoza, supra, 24 Cal.4th 130, 192), and in doing so, are allowed to consider their own emotional responsesto the evidence presented. (People v. Belmontes (1988) 45 Cal.3d 744, 801, fn. 20, citing California v. Brown (1987) 479 U.S. 538, 542.) In the Court’s words, a defendant’s gangaffiliation is the type of evidence that maylead capital case jurors to “jumpto the conclusion the defendant deservesthe death penalty.” (People v. Gurule, supra, 28 Cal.4th at p. 653.) Here, the prejudice inherent in gangaffiliation evidence in general was amplified in two ways. First, Deputy Hilgendorf’s testimony that “KCC”is the initials of a street gang namedthe “King City Criminals,” and that the owner of the vehicle took the threat seriously because he knew appellant and his accomplice were gang membersandthe only piece of evidence that the prosecutor introduced against appellant in the penaltytrial was made even more aggravating by the fact it was part of “a larger social evil.” (People v. Gurule, supra, 28 Cal.4th at p. 654, quoting People v. Tuilaepa (1992) 4 Cal.4th 569, ® Appellant additionally objected to the admission of the latter evidence on hearsay grounds. (16 RT 2569-2570, 2582-2583) -194- 588.) This erroneous impression also increased the specter that appellant would associate with prison gangsand be involved in future gang violence in prison, and would thus pose the risk of future dangerousnessif allowed to live his life in prison. Secondly, the inherent prejudice of this gang evidence was magnified by the completely irrelevant additional gang evidencethat the jurors heard against appellant. Officer Zembal, the self-proclaimed “world renowned expert” on gangs,testified that law enforcement agencies are able to determine whetheran individual is a gang member by their dress, tattoos, shaved heads, and associates (20 RT 3078, 3083, 3085, 3094), thereby leaving the jurors with the belief that appellant and Mora belonged to the same criminal street gang. This belief was furthered by evidence introducedattrial showing that both appellant and Mora worethe shaved,almost bald hairstyles (3 RT 410, 6 RT 979) that Zembaltestified were a meansof recognition among the King City Criminals. (20 RT 3094.) The evidencethe prosecutor elicited from Officer Zembel’s testimony could only have left the jurors with the impression that appellant, with his shaved head,tattoos, and moniker, was a “gang memberof a hard-core nature,” with a “wanton disregard or disrespectfor life itself” (20 RT 3094-3096), and that appellant belongedto the “King City Criminals,” a criminal street gang whose memberscarry guns, commit serious offenses, including murder (20 RT 3078-3080), and terrorize and threaten to kill victims of their crimes whoreported them to the police. (16 RT 2567, 2569-2570.) -195- Moreover, despite appellant’s request, no limiting instruction was given in the penalty phases to direct the jury as to how to consider the gang evidence. (20 RT 3140- 3141, 3147-3149; 5 CT 1171-1212 (instructions given), 1220 (gang instruction refused).) However, even hadthetrial court explicitly instructed the jury however,it is unlikely the jurors could have followed any instruction limiting its consideration of the evidence. Given the “highly inflammatory impact” of gang evidence (People v. Kennedy, supra, 36 Cal.4th at p. 624), it is the “essence of sophistry and lack of realism”to think that an instruction or admonition to the jurors to limit their consideration of such highly prejudicial evidence could have had anyrealistic effect. (People v. Gibson, supra, 56 Cal.App.3d 119, 130.) In the words of the United States Supreme Court, “in some circumstances‘the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and humanlimitations of the jury system cannot be ignored.’” (Simmons v. South Carolina (1994) 512 U.S. 154, 171.) In the words of this Court, “[i]t does not reflect in any degree uponthe intelligence, integrity, or the honesty of purpose of the juror that matters of a prejudicial character find a permanent lodgmentin his mind, which will, inadvertently and unconsciously, enter into and affect his verdict.” (People v. Albertson (1944) 23 Cal.2d 550, 577.) Or, as stated by the Fifth Circuit Court of Appeals, “‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.”” (Dunn v. United States (Sth Cir. 1962) 307 F.2d 883, -196- 886.) E. Appellant’s Death Sentence Must be Reversed. In terms of prejudice, it matters not whether this capital case penaltytrial erroris assessed as oneofstate or federal law, for test is the “same in substance andeffect.” (People v. Gonzalez, supra, 38 Cal.4th at p. 961 & fn. 6; People v. Ashmus, supra, 54 Cal.3d at p. 965.) As described below, the State cannot show that it is beyond a reasonable possibility that this violation of state and federal law could have contributed to the jury’s decision to impose the death penalty in this case. (Chapmanv. California, supra, 386 U.S. 18; People v. Brown, supra, 46 Cal.3d 432, 446-448.) This was not a case in which there were numerous aggravating factors that appellant would have had to overcomein orderto receive a life sentence. To the contrary, the sole aggravating facts other than the circumstancesof the crime itself was the single incident of vehicle burglary and the victim impact evidence. Moreover, appellant presented mitigation evidence not only through the testimony of Jose Jimenez discussed above,but also through the testimony of both his parents, his sister, his ex-wife, andhis girlfriend. Appellant’s mother andsister testified that he had been abused and that his parents were heroin addicts and incapable of properly taking care of him. (18 RT 2775-2797; 19 RT 2942-2970.) Appellant’s mother did not even know whether appellant finished high school. (18 RT 2806.) Appellant’s father testified that he himself was in a gang but told appellant not to get involved with them. Appellant’s father was once shot -197- while appellant was with him. (19 RT 2895-2897, 2902.) Appellant’s father also testified that appellant did not finish high school and that appellant was at his house the day before the shootings and drank a six-pack of beer and hadfive tequila shots, but that he always drank that much. (19 RT 2876-2880, 2899.) Appellant’s sister and girlfriend testified to his drug use and that he was intoxicated that night of the shootings after having drankall day at a family barbeque. (19 RT 2915, 2626, 2929, 2948, 2951.) The jury was also shownpictures of appellant’s family, including his children. (18 RT 2800-2806.) In light of the conflicting aggravating and mitigating evidence presented at the penalty phase, the State cannot demonstrate that it is beyond reasonable possibility that the erroneous admission ofthis irrelevant and highly inflammatory evidence could have contributed to at least one juror’s decision to impose a death sentence (Chapmanv. California, supra, 386 U.S. at p. 24; People v. Ashmus, supra, 54 Cal.3d at p. 965), particularly in light of one seated juror having already admitted her bias against gang membersin voir dire2 The gang testimony made it appear that the instant crimes were gang-related and therefore more serious because appellant was a hard-core violent gang member with a ’® The prejudice in the penalty phase from the admission ofthe irrelevant and highly prejudicial gang evidence is exacerbatedbythe trial court’s earlier erroneous ruling in the guilt phase allowing the prosecutorto play for the jury tape-recorded statements Lourdes Lopez made to police containing improperinferencesthat the charged crimes were gang-related and appellant and Mora were gang members. (See Argument IV, ante.) -198- “wanton disregard or disrespect for life itself,” and that he and his gang carry guns, commit violent offense, including murder, and terrorize and threaten to kill their victims. (16 RT 2567, 2569-2570; 20 RT 3094-3096, 3078-3080.) This irrelevant and unduly prejudicial evidence wasindeed, “the skunk in the jury box” and therefore, appellant’s death sentence must be reversed. // // -199- XIV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING APPELLANT?’S ADDITIONAL PROPOSED PENALTY PHASE INSTRUCTIONS. A. Introduction Thetrial court refused a numberof specially tailored instructions which appellant requested and which would have addressed various aspects of the jurors’ penalty determination.’ As described below,taken aloneorin the aggregate, the trial court’s refusal of each of these requested instructions was reversible error. Appellant was entitled upon request to instructions that related the evidence presented in the penaltytrial to the jurors’ determination of whether he wouldlive or die, and that pinpointed the crux of his case for life. (See People v. Saille, supra, 54 Cal.3d 1103, 1119, citing People v. Rincon-Pineda, supra, 14 Cal.3d 864, 885, People v. Sears, supra, 2 Cal.3d 180, 190.) Even absent a request, appellant was entitled to have his jury instructed on the general principles of law which governed his penalty trial and were necessary for the jurors’ understanding of the appropriate penalty in this case. (People v. Blair (2005) 36 Cal.4th 686, 744; People v. Breverman (1998) 19 Cal.4th 142, 154; see also Carterv. Kentucky (1981) 450 U.S. 288, 302 [Jurors are not experts in legal principles; to function "’ The special instructions discussed below were submitted by appellant. (4 CT 1057-1074, 20 RT 3127-3144.) After noting that she had similar instructions on Mora’s behalf but believed the trial court only needed oneset of the special instructions, Mora’s trial counsel joined in appellant’s request for these instructions, and in all objections made by appellant’s attorneyto the trial court’s refusal to give these instructions. (20 RT 3113, 3160-3161.) -200- effectively, and justly, they must be accurately instructed in the law.”]. Thetrial court’s refusal to give these requested instructions deprived appellant of these rights and, more importantly, of his rights to a fair and reliable penalty determination, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and the applicable sections of the California Constitution. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 17, 24.) B. Standard of Review An appellate court applies the abuse of discretion standard of review to any decision bya trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury. (People v. Waidla, supra, 22 Cal.4th at pp. 745-746.) Further, penalty phase error, even state law error which doesnot violate the federal constitution, requires reversal where “there is a reasonable... possibility the jury would have rendered a different verdict had the error not occurred.” (People v. Hamilton (2009) 45 Cal.4th 863, 917.) C. The Trial Court Erred by Refusing Appellant’s Request to Instruct the Jury that it Would Be Misconduct to Regard Death as a Less Severe Penalty Than Life in Prison Without Possibility of Parole. Appellant requested that the trial court instruct the jury: You are instructed that death is qualitative different from all other punishments andis the ultimate penalty in the sense of the most severe penalty the law can impose. It would be a violation of your duty, as jurors, if you were to fix the penalty at death with the view that you were thereby imposing the less severe of the two available penalties. -201- (4 CT 1060; 20 RT 3113.) The prosecutor objected to this instruction, saying there was no authority for the proposition that death was the most severe punishmentandthat it was up to the jurors to decide which punishmentthey thought was the most severe. (20 RT 3131.) Thetrial court refused appellant’s request on the ground there was nolegal authority for the instruction. (20 RT 3132.) Thetrial court and the prosecutor were wrong. Both this Court and the federal Supreme Court have recognized that death is the most severe penalty under the law. (People v. Memro (1996) 11 Cal.4th 786, 879 [“[P]rosecutor’s commentthat life imprisonment withoutpossibility of parole was ‘legally not worse’ than death was accurate as a legal matter . . . for indeed death is the worse punishment.”]; People v. Hernandez, supra, 47 Cal.3d 315, 362, citing Caldwell v. Mississippi, supra, 472 U.S. 320, 329, Woodson v. North Carolina (1976) 428 U.S. 280, 305 [“Obviously death is qualitatively different from all other punishments and is the ‘ultimate penalty’ in the sense of the most severe penalty the law can impose.”]; Roper v. Simmons (2005) 543 U.S. 551, 568 [“Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force”].) Accordingly, this Court has recognized that it would be improperfor a juror to vote for the death penalty based upon a belief that it was a less severe penalty than life without parole. (See People v. Hernandez, supra, 47 Cal.3dat p. 363 [scrutinizing whether prosecutor’s argument that the jurors could find life without -202- possibility of parole was the “ultimate penalty” would have persuadedthe jurorsthatlife without parole wassimilar to death in its severity].) Appellant’s requested instruction was, therefore, a correct statement of the law. It was not argumentative, nor wasit duplicative of other instructions given bythetrial court, which did not apprise the jury that death is the law’s most severe penalty. It was error for the trial court to refuse this instruction. (See People v. Gurule, supra, 28 Cal.4th 557, 659 [examining whether rejected penalty phase instructions requested by the defense were incorrect statements of law, argumentative, or duplicative].) That death is the more severe punishmentis not apparentto all jurors. (See, e.g., People v. Heard (2003) 31 Cal.4th 946, 964 [recognizing that the view that life imprisonment withoutthe possibility of parole was considered to be a worse punishment death “was not an uncommonresponse from the jury venire as a whole, and, indeed, from a substantial numberofjurors whoactually sat on the case.”]; see also People v. Bloom (1989) 48 Cal.3d 1194, 1223, fn. 7 [“While qualitatively different from the death penalty, the punishmentof life without hope of release has been regarded by manyasequally severe”]; Holman v. Page (7th Cir. 1996) 95 F.3d 481, 487, overruled on another point in Owensv. United States (7th Cir. 2004) 387 F.3d 607 [“Natural life imprisonmentis a stern punishment, for some perhaps worse than death”]; Holland v. Donnelly (S.D.N.Y. 2002) 216 F.Supp.2d 227, 242 [“Life imprisonment without any hope ofparole or other release is a particularly harsh sentence, thought by someto bea fate as bad as, or possibly -203- even worsethan, death itself.”].) Indeed, here, as noted above, even the prosecutor believed that appellant’s jurors could find that life without parole was a more severe penalty than death. (20 RT 3131.) Morecritical to the outcomeofthis case, three of the jurors who sentenced appellant to death believedthat life in prison without the possibility of parole was a “worse” penalty than was a death sentence. (43 CT 11266, 11383, 11461.) Another of appellant’s jurors believed that “sometimeslife in jail is worse” than the death penalty (43 CT 11147), while yet a fifth juror was unable to say which of the two possible punishments were worse.’ (43 CT 11422.) Appellant’s requested instruction would have corrected these jurors’ misunderstanding on this point, and would have clearly instructed the jurors that death was the most severe penalty under the law. Absent that requested instruction thereis, under the circumstancesof this case, more than a “reasonable possibility” (Chapman v. California, supra, 386 U.S. at p. 24, citing Fahy v. Connecticut (1963) 375 U.S. 85, 86- 87; People v. Ochoa, supra, 19 Cal.4th at p. 479) that appellant’s jurors were not in agreementthat death was the more severe punishment, and that some of appellant’s jurors may have voted for the death penalty in the mistaken belief that this sentence was more ’® Twoofthe four alternate jurorsin this case also believed thatlife in prison without the possibility of parole was a more severe penalty than was death. (44 CT 11617, 11707.) -204- lenient than life without possibility of parole. This possibility renders appellant’s death sentence unreliable and unconstitutional under the Eighth and Fourteenth Amendments. Stated differently, the trial court’s failure to give appellant’s requested instruction creates a risk that some of appellant’s jurors regarded death as a less severe penalty than life without parole and therefore voted for the death penalty because they believed mitigation outweighed aggravation. That risk “is unacceptable and incompatible with the commandsof the Eighth and Fourteenth Amendments.” (Lockett v. Ohio, supra, 438 U.S. 586, 605; see also Zant v. Stephens (1983) 462 U.S. 862, 884-885, quoting Woodsonv. North Carolina (1976) 428 U.S. 280, 305 [recognizing the “qualitative difference between death and any other permissible form of punishment” and the “‘corresponding difference in the need for reliability in the determination that death is the appropriate punishmentin a specific case.’”].) The death judgmententered in this case must be reversed. D. The Trial Court Erred by Failing to Instruct That Drug or Alcohol Intoxication Could Not Be Considered Aggravating. Thetrial court instructed the jurors on Penal Code section 190.3, subdivision (h), by reading CALJIC No. 8.85, whichtells the jurors that in deciding whether appellant would live or die, they should consider: “[w]hether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impairedas a result of mental disease or defect or -205- the effects of intoxication.” (5 CT 1195; 20 RT 3178.) Appellant requested the following clarification: Drug andalcohol intoxication, either at the time of the commission of a crime or at some other time, may be considered as a mitigating factor and not as an aggravating factor.~ (4 CT 1062; 20 RT 3113.) The prosecutor objected this instruction was misleading, and told the court that drug or alcohol intoxication was a “circumstance surrounding the crime,” and therefore could be an aggravating factor under Penal Code section 190.3, subdivision (a). (20 RT 3132.) The trial court agreed, saying “to the extent there was evidence of intoxication,it can be argued under the circumstances of the crime,” and refused to give appellant’s requested instruction. (20 RT 3133.) Thetrial court also said “there is not any ” To the extent that appellant’s requested instruction informedthe jurors they could consider appellant’s intoxication “either at the time of the commission of a crime or at some other time” (4 CT 1062,italics added), the italicized portion of the requested instruction was a proper statement under Penal Code section 190.3, subdivision (k), whichallowsthe jurors to consider as mitigation any circumstance which extenuates the gravity of the crime, and any other aspect of the defendant’s character offered as a basis for a sentenceless than death, regardless of whether they are related to the offense for which heis on trial. (See People v. Easley (1983) 34 Cal.3d 858, 878, citing Lockettv. Ohio, supra, 438 U.S. 586, 604; CALJIC No. 8.85.) Moreover, even assuming the “or at some other time” portion of appellant’s requested instruction could be considered a misstatement of Penal Codesection 190.3, subdivision (h), which deals with intoxication “at the time of the offense,” the proper course of action would have been forthetrial court to edit out this language, rather than reject the instruction as a whole. (See Peoplev. Sanchez (1950) 35 Cal.2d 522, 528 [the trial court could easily have cured any defect in defendant’s proposed instruction by striking out the offending language].) -206- E e @ £ a independent evidence relating to [Penal Code section 190.3, subdivision (h)] and there hasn’t been any expert to showthe level of intoxication. All we haveis alcohol and some drugs.” (/bid.) Thetrial court and the prosecutor were wrongin their beliefs that intoxication could be considered an aggravating circumstance of the crime under Penal Code section 190.3, subdivision (a). (People v. Ochoa, supra, 19 Cal.4th at p. 464 [defendant’s intoxication at the time of the offense can only be considered in mitigation]; see also People v. Maury (2003) 30 Cal.4th 342, 444 [judging whether error occurred by asking if there was a reasonable likelihood that the jurors understood their instructions in a manner that allowed them to view intoxication as an aggravating circumstance of the crime]; People v. Osband, supra, 13 Cal.4th 622, 708 [same].) Thetrial court also was wronginits belief that intoxication, be it induced by alcohol or drugs, needsto be established by expert testimony. (People v. Williams (1988) 44 Cal.3d 883, 914-915; see also Carson v. Facilities Company (1984) 36 Cal.3d 830, 845 [citing People v. Stines (1969) 2 Cal.App.3d 970, 976-977 for the proposition that lay witness testimony is competent evidence from which the jury can draw the inference of intoxication]; People v. Conley (1966) 64 Cal.2d 310, 326” [“jury may infer the presence and extent of a defendant’s intoxication from evidence of his behavior and the amount of *° People v. Conley was supersededbystatute on other grounds, as recognized in People v. Saille, supra, 54 Cal.3d 1103, 1114. -207- his drinking”|; People v. Barnett (1976) 54 Cal.App.3d 1046, 1052 [“Jurors as laymen are deemed competent to form opinions on intoxication.”].) Here, the prosecution’s own witnesses presented sufficient evidence from which the jurors could have drawn the inference that appellant was affected by drugs andalcohol at the time of the crime when testimony was given that “everyone” was “drinking” and “getting high” and that alcohol and meth were present. (6 RT 1010-1011, 7 RT 1075-1076, 1146, 1179; see also 6 RT 884, 7 RT 1166.) The prosecutor even argued that alcohol allowed appellant “to do this murder that much better.” (20 RT 3222.) The Court has held that the failure to specify aggravating and mitigating factors as such does not violate Eighth and Fourteenth Amendmentprinciples becausethere is no “reasonable likelihood”that a juror would misunderstand whichof the statutory circumstances under Penal Code section 190.3 were “aggravating”’ and which “mitigating.” (People v. Benson (1990) 52 Cal.3d 754, 802, quoting Boyde v. California (1990) 494 U.S. 370; see also People v. Coffman, supra, 34 Cal.4th 1, 123.) This case belies that assumption,as both the trial court and the state’s prosecutor believed intoxication could be considered an aggravating factor under Penal Code section 190.3. (20 RT 3132-3133.) Surely, if the court and the prosecutor believed the law, as recited in CALJIC No. 8.85, allowed the jurors to consider intoxication as aggravation warranting the death penalty, there is a “reasonable likelihood” that the jurors would believe the same. -208- Where,as here,it is likely that a juror attached an aggravating label to a factor that actually should militate in favor of a lesser penalty, the Fourteenth Amendmentright to due process of law requires that the jury’s decision to impose death beset aside. (Zantv. Stephens, supra, 462 U.S. 862, 885; People v. Benson, supra, 52 Cal.3d at p. 801.) The likelihood that the jurors in this case understood they could attach aggravating consequencesto statutory factors that are mitigating only also requires reversal under federal due process principles that prohibit depriving appellant of crucial protections afforded under California law. (Hicks v. Oklahoma, supra, 447 U.S. 343, 346; Fetterly v. Puckett (9th Cir. 1993) 997 F.2d 1295, 1300-1301.) This likelihood further renders the resulting verdict unreliable and reversible under the Eighth Amendment, as well. (See Furman v. Georgia (1972) 408 U.S. 238; Godfrey v. Georgia (1980) 446 U.S. 420, 428, quoting Gregg v. Georgia (1976) 428 U.S. 153, 198 [“a State wishing to authorize capital punishment... must channel the sentencer’s discretion by ‘clear and objective standards’”’].) As notedalready, the state’s case for death was based almost entirely on the circumstance of the crime, presented under Penal Codesection 190.3, subdivision (a). This was not, however, the rare case of a murderso heinousthat any juror would haveto conclude that death was the appropriate punishment, and reasonable jurors could have found this was not one of the “extreme cases” that actually warranted societies “most irrevocable of sanctions[.]” (Gregg v. Georgia, supra,, 428 U.S. at p. 182; see also id. at -209- p. 184.) A reasonable juror could have determined that the scale of justice was balanced, and that the additional weight ofjust this one improperfactor in aggravation was sufficient to tip that scale in favor of death. This is especially so, given at least four of appellant’s jurors were predisposed to viewing intoxication as an aggravating factor, as indicated bytheir beliefs that drug use was one ofthe leading causes of crime.. (43 CT 11135, 11213, 11291, 44 CT 11447.) The state cannot meetits burden under Chapman v. California, supra, 386 U.S. at pp. 23-24 of proving beyond a reasonable doubtthat this error could not have been a contributing factor in at least one juror’s decision to impose the death penalty in this case. Appellant’s death sentence must be overturned. E. The Trial Court Erred by Refusing to Instruct the Jurors That Appellant’s Background Could Only Be Considered as Mitigating. Appellant requested that the jurors be instructed: The permissible aggravating factors are limited to those aggravating factors upon which you have beeninstructed. Therefore, the evidence which has been presented regarding the defendant’s background may only be considered by you as mitigating evidence. (4 CT 1063; 20 RT 3113.) The prosecutor and court both believed this instruction misstated the law, and the court refused appellant’s instruction, saying there was no legal authority for it. (20 RT 3134.) Again, the trial court and prosecutor were wrong. The evidence of appellant’s -210- background presented by the defense was admissible “only to extenuate the gravity of the crime; it c[ould] not be used asa factor in aggravation.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1033.) Appellant’s instruction therefore as a correct statementofthe law. The Court has declined to specifically rule on the particular instruction requested by appellant, other than to say it has previously rejected argumentsthat the trial court must identify for the jurors which sentencing factors are aggravating and which are mitigating. (People v. Hinton (2006) 37 Cal.4th 839, 912; People v. Martinez (2004) 31 Cal.4th 673, 701.) In past cases, the Court’s has found it unnecessary to reach the specific question of whether a defendantis entitled to have the jurors instructed that the background evidence he has beenpresented can only be considered as mitigating evidence, based onits belief that even assumingthetrial court erred by failing to give the instruction, there was no reasonable possibility that the jury improperly considered the defendants’ backgroundsas aggravation. (People v. Hardy (1992) 2 Cal.4th 86, 207; People v. Martinez, supra, 31 Cal.4th at p. 701.) In a recent case involving a defendant’s request for such an instruction, the Court again stated it had rejected arguments that the court must identify for the jurors which sentencing factors are aggravating and which are mitigating. (People v. Hinton, supra, 37 Cal.4th at p. 912.) Then, citing People v. Ochoa, supra, 26 Cal.4th 398, 457, the Court simply declared “In any event, since the court correctly instructed the jury on aggravating and mitigating factors, it was not error to refuse the special instruction.” (People v. Hinton, supra, 37 Cal.4th at p. 912.) -211- Appellant’s case obviously differs from People v. Ochoa, where the defendant wantedthe jurors to consider his ethnic background, which,as the Court noted, is not a legitimate factor in aggravation or mitigation. (People v. Ochoa , supra, 26 Cal.4th at p. 457.) This case differs from the other cases cited abovein that in the absence of appellant’s requested instruction, it is more than possible that appellant’s jury improperly considered the background evidence presented by the defense as aggravation, and more than possible that this error contributed to appellant’s conviction. Appellant’s case for mitigation was based on evidence of his backgroundandlife up to the time of the shooting. If, as their statements show,both thetrial court and the prosecutor believed it was inaccurate to state that the law allowed this evidence only as mitigation (20 RT 3133-3134), it is more than likely that the jurors would interpret the law, as instructed by the court, the same. It also is likely that this misunderstanding was fueled by the prosecutor’s summation, which twisted appellant’s mitigating evidence of fathering children into an aggravating argument that he “created”a family, then “hun[g] out having a great old time [with his] buddies[.]” (20 RT 3197.) Likewise with that portion of the prosecutor’s remarks that turned appellant’s mitigating evidence that he wasthe subject of childhood neglect by his heroin-addicted parents into a disclaimerthat this does not turn one into “a cold-blooded killer.” (20 RT 3228.) Thelikelihood that appellant’s jurors attached aggravating weight to appellant’s mitigating background evidence violated appellant’s Eighth and Fourteenth Amendment -212- rights to due process and a reliable penalty verdict based on a proper consideration of relevant sentencing factors (Johnson v. Mississippi, supra, 486 U.S. 578, 584-585, quoting Zant v. Stephens, supra, 462 U.S. 862, 884-885; see also Furman v. Georgia, supra, 408 U.S. 238; Godfrey v. Georgia, supra, 446 U.S. 420, 428, quoting Gregg v. Georgia, supra, 428 U.S. 153, 198), and his federal due process guarantee that prohibited his being arbitrarily deprived of a crucial protections afforded under California law. (Hicks v. Oklahoma, supra, 447 U.S. 343, 346; Fetterly v. Puckett, supra, 997 F.2d at pp. 1300-1301.) In a case like this, where reasonable jurors could have found the evidence did not overwhelmingly support a death sentence, it is more than possible that this error could have, in the mind of a least one juror, tipped what was otherwise a balanced life- death scale in the prosecution’s favor. The State cannot show beyond a reasonable doubt that there is no reasonable possibility that this error could have played a contributing role in the jury’s decision to impose a death sentence. (Chapmanv. California, supra, 386 U.S. at p. 24; People v. Ashmus, supra, 54 Cal.3d at p. 965.) The death sentence must be reversed. F. The Trial Court Erred in Refusing to Give Appellant’s Proposed Clarifying Instructions on the Penalty Weighing Process. Appellant requested three instructions on the weighing of mitigating and aggravating factors: “Requested Special Instruction No.: 12 Youare instructed that even if aggravating factors substantially -213- outweigh mitigating factors you maystill find life in prison without the possibility of parole to be the appropriate punishmentin this case.” (4 CT 1068; 20 RT 3113.) “Requested Special Instruction No.: 16 Any mitigating factor or circumstance standing alone may be sufficient to support a decision that life in prison without the possibility of parole is the appropriate punishmentin this case.” (4 CT 1071; 20 RT 3113.) “Requested Special Instruction No.: 20 A jury may decide, even in the absence of mitigating evidence,that the aggravating evidence is not comparatively substantial enough to warrant death.” (4 CT 1073; 20 RT 3113.) Thetrial court denied appellant’s request on the groundthat the principles illuminated in these requested instructions were covered by CALJIC No. 8.88.24 (5 CT ‘' Thetrial court instructed appellant’s jurors on CALJIC No. 8.88 whichstated: “It is now your duty to determine which ofthe two penalties, death or imprisonmentin the state prison for life without possibility of parole, shall be imposed on [each] defendant. { After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. J An aggravating factor is any fact, condition or event attending the commission of a crime whichincreasesits severity or enormity, or addsto its injurious consequences which is above and beyondthe elementsof the crimeitself. A mitigating circumstanceis any fact, condition or event which doesnotconstitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. { The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each -214- 1211-1212; 20 RT 3137-3139.) The court also believed that appellant’s special requested instructions Nos. 12 and 16 were argumentative. (20 RT 3137-3138.) In People v. Brown (1985) 40 Cal.3d 512, reversed on other grounds in California v. Brown, supra, 479 U.S. 538, the Court recognized that under California law, a death sentence is never mandatory - not even when the aggravating circumstances outweighthe mitigating circumstances. (See id. at p. 540 [“The jury must be free to reject death if it decides on the basis of any constitutionally relevant evidence or observation that it is not the appropriate penalty.”].) In People v. Bolin (1998) 18 Cal.4th 297, 344, the Court quoted People v. Duncan (1991) 53 Cal.3d 955, 979 for the proposition that “[t]he jury may decide, even in the absence of mitigating evidence,that the aggravating evidenceis not comparatively substantial enough to warrant death.” And, in People v. Anderson side of an imaginaryscale, or the arbitrary assignment of weights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider. In weighing the various circumstances you determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstanceswith thetotality of the mitigating circumstances. To return a judgment of death, each of you must be persuadedthat the aggravating circumstances are so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole. { [In this case you must decide separately the question of the penalty as to each of the defendants. If you cannot agree upon the penalty to be inflicted on [both] defendants, but do agree on the penalty as to one of them, you mustrendera verdict as to the one on which you do agree.| {| You shall now retire to deliberate on the penalty. The foreperson previously selected may preside over your deliberations or you may choose a new foreperson.In order to make a determination as to the penalty, all twelve jurors must agree. §] Any verdict that you reach must be dated and signed by your foreperson on a form that will be provided and then you shall return with it to this courtroom. (5 CT 1211-1212; 21 RT 3294-3296.) -215- (2001) 25 Cal.4th 543, 600 and People v. Sanders (1995) 11 Cal.4th 475, 557, the Court noted with approval an instruction informing the jurors that a single mitigating factor may be sufficient to support a decision that life in prison without the possibility of parole is the appropriate punishment. Thus, appellant’s requested instructions were correct statements of the law. Nevertheless, the Court has rejected the need for instructions such as those requested by appellant on the ground that CALJIC No. 8.88 adequately guides the jury’s selection of the appropriate punishment by informingjurors that “[t]o return a judgment of death, each of you must be persuaded that the aggravating [evidence is] so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole.” (People v. Ray (1996) 13 Cal.4th 313, 355-356, quoting People v. Johnson (1993) 6 Cal.4th 1, 52.) Given this language, the Court has held that “[n]o reasonable juror would assumeheor she was required to impose death despite insubstantial aggravating circumstances, merely because no mitigating circumstances were found to exist.” (Ibid.; see also People v. Anderson, supra, 25 Cal.4th at p. 600,fn. 20; People v. Snow (2003) 30 Cal.4th 43, 124.) The proper question, however, is not whether a juror would assumethat death had to be imposed evenif there were insubstantial aggravating circumstances, but whether a juror would feel free to return a verdict of life imprisonment without parole in the face of substantial aggravating circumstancesandlittle or no mitigating circumstances. That is -216- whatis implicit in appellant’s requested instructions, and what a juror hasa right to do. This concept is not properly conveyed by CALJIC No. 8.88, which implies that death is the only appropriate sentence if the aggravating evidence is “so substantial in comparison with the mitigating circumstances . . . .”2” Without the aid of appellant’s special requested instructions, the jurors were not able to fully engage in the type of individualized consideration required in a capital case. (See Zant v. Stephens, supra, 462 U.S. at p. 879; see also Furman v. Georgia, supra, 408 U.S. 238; Godfrey v. Georgia, supra, 446 U.S. 420, 428.) Thus, the failure to give appellant’s requested instructions violated appellant’s right to a fair and reliable penalty determination underthe Fifth, Eighth, and Fourteenth Amendments. G. Appellant’s Death Sentence Must be Vacated. The denialofall of the above-requested instructions combined to deny appellanta fair and reliable penalty determination. Each of the requested instructions described above should have been given, andthe failure to give any oneofthese instructions constitutes reversible error. However, evenif the denial of each instruction individually would not be considered to be reversible error, the cumulative effect of the trial court’s failure to give all of the instructions denied appellant a fair penalty determination. *° Because appellant’s requested instructions clarified the sentencing conceptsset forth more generally and less clearly in CALJIC 8.88, they were not, as the trial court believed, argumentative. (See People v. Fauber (1992) 2 Cal.4th 792, 865-866 [defining an argumentative instruction is one that “merely highlight[s] certain aspects of the evidence without further illuminating the legal standards at issue.”].) -217- Each of the requested instructions was designed to address considerationsthat the jurors could bring to bear in making the determination between life and death. None of the instructions was an incorrect statement of the law or improper in its manner of presentation. All of the principles embracedby the instructions have been endorsed by this Court. In short, all of these instructions presented to the jurors information that is an accepted part of death penalty jurisprudence in this state, and that was necessary to ensure appellant’s constitutional rights to a fair and reliable penalty determination. Thetrial court’s failure to give these instructions denied appellant those rights, and requires that his death sentence be overturned. // // -218- XV. THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUESTS FOR A CONTINUANCE TO ALLOW APPELLANT TO SECURE A NECESSARY SURREBUTTAL WITNESS, REVISE HER CLOSING ARGUMENTIN LIGHT OF THE COURT’S REJECTION OF DEFENSE REQUESTED INSTRUCTIONS, AND ALLOW DEFENSE COUNSEL UNTIL THE NEXT MORNING TO START HER PENALTY PHASE CLOSING ARGUMENT. A. Introduction Thetrial court’s denial of a continuance to secure a necessary surrebuttal witness, and of an overnight recess between the prosecution and defense closing argument deprived counsel of a reasonable opportunity to present a defense and to prepare closing argument for the penalty phase, violating his constitutional rights to due process,a fair trial, to present a defense, equal protection, to a reliable penalty phase andto the effective assistance of counsel. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 17, 24.) On February 16, 1999, the prosecution presented its penalty phase rebuttal case, consisting of a single witness, Compton SchoolDistrict Police Officer and self-described “world renowned expert on gang graffiti and gangs,” Andrew Zembel. (20 RT 3078, 3081-3082) Zembel was not on the prosecution’s penalty phase “witnesslist” which was nota list at all but instead the witnesses originally reflected on the jury questionnaire. (15 RT 2471; 16 RT 2475; See e.g., 43 CT 11158.) Prior to beginning the penalty phase defense counsel expressed her concern that the prosecutor might present witnesses other than those listed on the questionnaire, but all the prosecutor would state was that she had -219- no other witnesses “at this time.” Thetrial court assured defense counsel that if the prosecutor attempted to present any other witnesses, there would be a hearingfirst. (16 RT 2482-2485.) A hearing was conducted prior to Zembel’s testimony in which the court denied appellant’s request to know the nameof the witness or be given additional documents*’ upon which the witness plannedto rely. (20 RT 3068-3076; See Argument XIU, ante.) The following exchangetookplaceafter the prosecutor expressed her intention to present a rebuttal witness: Ms. Trotter: The Court: Ms. Trotter: The Court: I wouldlike to know whothat witness is, your honor. I appreciate that you do but they are not requiredto tell you. Your honor, I respectfully disagree with the court. I have no wayoflining up other witnesses unless I have those underlying documents on whichthis perspective witness baseshis testimony. I appreciate the difficulty, but that isn’t going to happen. The thrust of Zembel’s testimony was to introduce gang evidence to rebut defense testimony by Jose Trinidad “Trino” Jimenez that he knew appellant through homebible study from 1989 through 1992 and based upon what he knew of appellant, it seemed “out 83 The prosecutor had previously turned over a four-page document to counsel regarding appellant’s gang membershipthat she intended to use as rebuttal to Jimenez testimony regarding appellant’s character. Counsel objected to the evidence being admitted at all and unsuccessfully requested thatif it were admitted that she be given the underlying documents which supported it, e.g., field ID cards, police reports, etc. so she could adequately cross- examine the witness. (20 RT 3066-3067; See Argument XIII, ante.) -220- of character” for appellant to commit the crimes of which he was convicted.” (18 RT 2815-2819, 2822-2828; 20 RT 3074.) Counsel for appellant objected to the rebuttal testimony. (18 RT 2828-2829; 20 RT 3072-3076.) Zembel was allowed, over defense objection, to examinetattoos on appellant’s body and testify as to the significance of each, and to use a multiple hearsay document not generated by Zembelto give his opinion as to the extent and nature of appellant’s involvement in gangactivity. (20 RT 3077- 3107.) After, Zembel’s testimony concluded, appellant requested a continuance to present appellant’s father, who had previously testified on the nature of appellant’s gang activities as a surrebuttal witness.*” The court stated that if counsel could get appellant’s father into court by 1:30 p.m. (it was then 11:00 a.m.) with a sufficient offer of proof, it would consider allowing the witness, but was “not making any promises.” (20 RT 3108-3110.) Counsel, who was involved in jury instruction discussions with the court and the other attorneys during that time (20 RT 3110-3161), was unable to procure the witness on such 4 Over defense objection, (See Argument XIII, ante) the prosecution was allowed to cross-examine Jimenez on whether he was “aware that Ruben Rangel was in a gang” andelicited whether his opinion of Rangel’s character would change if he knew that Rangel claimed a gangorif he knew that appellant spray-painted “KCC”on the side of a car and threatened to kill a witness for calling the police. (18 RT 2821-2837.) ° The defense arguedthat appellant’s father: “had previously testified, as a witness on the nature of gang activity of [appellant] and that [t]his prospective witness had previously testified about his own gang membership over a numberof years and we contend is knowledgeable in the are of gangs and membership.” (45 CT 11774.) -221- short notice and thus no surrebuttal was presented. At 1:30 p.m., after discussing proposed jury instructions the following colloquy occurred: Ms. Trotter: The Court: Ms. Trotter: The Court: Ms. Trotter: The Court: Also, your honor,there is another issue that I was unable to contact the person that I was considering calling in surrebuttal, and I’m asking your honorfor a recess until tomorrow so I can have that opportunity. If you haven’t been able to even contact them I’m notinclined to do it based on the testimonythat was offered in rebuttal. I would be able to contact him during the evening, your honor. I’m going to deny yourrequest. Your honor, I think that would be denial ofa fair trial, equal protection, due process rights under the federal constitution. All right. | Now I have beena (sic) handed from the People a special jury instruction entitled....” (20 RT 3149-3150.) After completing discussing jury instructions, the prosecution beganits closing argument at approximately 2:25 p.m. and completedit at approximately 3:40 p.m.,®” affording the prosecution approximately one hour and fifteen minutesforits initial closing argument (20 RT 3191-3236.) A fifteen minute recess wastaken until 3:55 p.m., during which time counsel for appellant objected to being forced to do her closing argument whenit wasessentially 4:00 p.m..2” Counsel pointed out that it was the end of 86 87 There was a 15 minute recess taken during the prosecution’s closing argument. (20 RT 3214-3216.) Counsel requested that her closing be deferred to the following day: “first to allow time for reorganizing notes, in light of the facts that mush of Counsel’s argument had beenbasedonthe special instructions proposed; many of these requested specials were rejected, that same day, by the Court. Secondly, Counsel believed that the jurors would be inattentive because her argument would extend beyond the normal time the Court recessed for the -222- the day, the jurors were tired*” and wanted to go home,thus makingherdo herclosing argument underthose circumstances would cause her to rush. The court noted her objection but stated that the court was in session until 4:30 and if she wanted to continue past that, she could. Counsel expressed her concern that if she did so, the jurors might be distracted and not be listening. The court declined to put the closing argument overuntil the next morning. (20 RT 3237.) Appellant’s closing argument commencedat 3:55 p.m.. (20 RT 3238.) Mid-argument, during a bench conference regarding an objected-to quote counsel wanted to use in her argument, the following exchange tookplace: The Court: .... If we have to interrupt one more time, that’s the end of your argument.” Ms. Trotter: It’s probably the end anyway because I don’t have enoughtime. When counsel sought to resume argument, one of the juror’s indicated they had to use the restroom and a short recess wastaken, after which, counsel completed her argumentat 4:50 p.m.. (20 RT 3258-3259.) B. Standard of Review The trial court’s denial of a motion for continuance is reviewed for abuse of discretion. (People v. Roybal (1998) 19 Cal.4th 481; People v. Jones, supra, 17 Cal.4th 279; People v. Mickey (1991) 54 Cal.3d 612, 660.) Although,the trial court has broad day.” (45 CT 11775.) “8 Indeed, the court acknowledgedthat prosecution’s closing argument was quite emotional and the juror’s were distracted by the victim’s family and friends crying in the audience. (20 RT 3214-3216.) -223- discretion to determine whether good cause exists to grant a continuanceoftrial, that discretion, of course, must be exercised in conformity with applicable law. (Pen. Code § 1050, subd. (e); People v. Frye (1998) 18 Cal.4th 894, 1012; People v. Mickey, supra, 54 Cal.3d at p. 660.) The trial judge must consider “not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.” (People v. Zapien (1993) 4 Cal.4th 929, 972.) Further, such discretion may not be exercised in a mannerasto deprive the defendant of a reasonable opportunity to prepare his defense. (Jennings v. Superior Court (1967) 66 Cal.2d 867; People v. Murphy (1963) 59 Cal.2d 818.) Moreover, “[W]hen a denial of a continuance impairs the fundamental rights of an accused,the trial court abusesits discretion.” (People v. Fontana (1982) 139 Cal.App.3d 326, 333; see also United States v. Bogard (9th Cir. 1988) 846 F.2d 563, 566 [“The conceptof fairness, implicit in the right to due process, may dictate that an accused be granted a continuance in order to prepare an adequate defense. Denial of a continuance warrants reversal, however, only when the court has abusedits discretion.”].) C. The Trial Court Abused its Discretion in Refusing to Grant An Overnight Continuancefor the Defense to Secure a Necessary Surrebuttal Witness And To Prepare for Closing Argument. The absence of a material witness for the defense, under appropriate conditions, -224- e e e e e e e e e e e e ee e e e e o e o e has long been recognized as a ground for continuance. (Jennings v. Superior Court, supra, 66 Cal.2d at 876.) Because the defense was denied the opportunity to present a material witness who could have rebutted the prosecutions’ “gang expert” on critical issue in the penalty phases — whether appellant was a hardened gang member®deserving of death — the trial court’s insistence on expeditiousnessin the face of a justifiable request for a continuance wasprejudicial error and denied appellant effective assistance of counsel, the right to present a defense, due process,a fair trial and a reliable penalty phase determination. death verdict. (Morris v. Slappy (1983) 461 U.S. 1, 11-12; Ungar v. Sarafite (1964) 376 U.S. 575; Webb v. Texas (1972) 409 U.S. 95, 98; see People v. Snow, supra, 30 Cal.4th 43, 70; U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 17, 24, 29.) A reasonable continuance to secure this surrebuttal witness was necessary for appellant to effectively rebut the prosecution’s irrelevant and prejudicial gang testimony. (See Argument XIIJJ, ante.) A brief delay of proceedings for counsel to secure and prepare a surrebuttal witness would not have compromised the integrity of the proceedingsor prejudiced the prosecution. However, despite this reasonable request, the court was determined that the penalty phase would proceed immediately into instructions 8 Zembeltestified: “My opinionis that he is a gang memberofa hard-core nature. Based on the tattoos from the shoulders up they signify someone that has a wanton disregard or disrespect for life itself, it shows a very ... a extreme hopelessness. (20 RT 3095.) -225- and argumenteven thoughit wasat the expense of appellant’s ability to fully prepare his case forlife. Further, the trial court’s denial of an overnight recess between the prosecution and defense closing argument deprived counsel of a reasonable opportunity to prepare closing argumentfor the penalty phase, violating his constitutional rights to due process, to present a defense, to equal protection of the law, to a reliable penalty phase and to the effective assistance of counsel. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 17, 24.) A reasonable continuance was necessary for counsel to prepare her closing which had previously been based on a numberofproposed defense instructions which were denied earlier that day andto structure a rebuttal to the prosecution’s argument. (45 CT 11775; 20 RT 3113, 3118-3121, 3127-3144, 3160-3161). A delay of the proceedings for what would have amountedto less than an hourof court timer” for counsel to reorganize her notesin light of the refused instructions and prepare to rebut the prosecution’s argument for death would not have compromised the integrity of the proceedings or prejudiced the State in any way. In response to such improperjudicial actions, courts havecriticized “a trial judge who seemedaboveall to be determined notto disturb [the court’s] trial schedule.” (United States v. Nguyen (9th Cir. 2001) 262 F.3d 998, 1003; see also Lee v. Kemma ” The court wasonly to be in session until 4:30, but insisted on defense counselstarting her closing argument at 3:55 p.m. rather than recessing until the next morning. -226- (2002) 534 U.S. 362 [holding that a trial court’s failure to grant a continuancein order for the defense to locate a scheduled alibi witness fell “within the small category of cases in whichasserted state grounds are inadequate to block adjudication of a federal claim.”].) Underboth the state and federal constitutions, a criminal defendant has the right to the effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I § 15, 24.) The right to counsel includesthe right to adequately present a defense, including the right to prepare witnesses and argument. (See People v. Maddox (1967) 67 Cal.2d 647, 652.) This is particularly true in the penalty phase ofa capital case, where the defendant has a right to counsel who adequately prepares witnesses and effectively presents their testimony. (Belmonte v. Ayers (9th Cir. 2008) 529 F.3d 834, 861-862.) By denying the brief continuance to either secure the surrebuttal witness or to adequately prepare for closing argument, the trial court deprived appellant of the effective assistance of counsel since counsel wasprevented from fully advancing his caseforlife. (Geders v. United States (1976) 425 U.S. 80; Morris v. Slappy, supra, 461 U.S. at 11-12; see Greenbergerv. Superior Court (1990) 219 Cal.App.3d 487, 505; see also United States v. Gallo (6th Cir. 1985) 763 F.2d 1504, 1523-1524.) Thetrial judge “failed to adequately balance [appellant’s] Sixth Amendmentrights against any inconvenienceand delay from granting the continuance.” (United States v. Nguyen, supra, 262 F.3d at p. 1004.) The denial therefore also violated his Sixth and Fourteenth Amendmentrights to present a defense. (United States v. Pope (9th Cir. 1988) -227- 841 F.2d 954, 958 [denial of continuance clearly prejudicial in that it deprived defendant of testimony that could have helped him]; Bennet v. Scroggy (6th Cir. 1986) 793 F.2d 772, 777 [same].) Moreover, the error violated appellant’s right to a fair and reliable determination of penalty under the Eighth and Fourteenth Amendmentsto the Constitution of the United States because the court’s ruling directly impacted the nature and quantity of the evidence available for the jury to consider. (U.S. Const., 8th & 14th Amends.; Pen. Code, § 190.3; CALJIC 8.85.) The request for a continuance to secure a critical surrebuttal witness was particularly reasonable under the circumstancessince appellant wasessentially sandbagged by the gang testimony. (See Argument XIII, ante). Further, the request to recess at 4:00 p.m. instead of 4:30 p.m. so the defense could prepare her penalty phase closing argumentin light of the refused instructions and rebut the prosecution’s argument for death was also reasonable under the circumstances The court abused its discretion since there was no compelling reasons not to grant the additional time in either circumstance. The matter of continuanceis traditionally within the discretion of the trial judge,andit is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. [citation omitted.] Contrariwise, a myopic insistence upon expeditiousness in theface ofa justifiable requestfor delay can render the right to defend with counsel an emptyformality. [citation omitted.]. There are no mechanical tests for deciding when a denial of a continuanceis so arbitrary as to violate due process. The answer must be foundin the circumstances present in every case, particularly in the reasons presented to -228- the trial judge at the time the requestis denied. (Ungarv. Sarafite, supra, 376 U.S. 575, 589.) “In determining whether a denial wasso arbitrary as to deny due process,the appellate court looks to the circumstances of each case andto the reasonspresented for the request. [citations.] One factor to consider is whether a continuance would beuseful. [citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 1011, citing People v. Frye, supra, 18 Cal.4th at p. 1012-1013.) Further, the court should consider “‘not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice 999will be accomplished or defeated by the granting of the motion.’” (People v. Jenkins (2000) 22 Cal.4th 900, 1037, citing People v. Zapien, supra, 4 Cal.4th 929, 972; see also United States v. Flynt, supra, 756 F.2d 1352, 1359, amended on other grounds, 764 F.2d 675 (9th Cir. 1985).) Specifically, where a defendant alleges the absence of a witness as groundsfor his continuance, if the defendant can show that he has been diligent in securing the witness, or that a specific witness exists who would present material evidence, the court’s ruling denying a continuance can support a claim of federal constitutional error. (See Jd. at p. 591; People v. Jenkins, supra, 22 Cal.4th at p.1140; People v. Howard, supra, | Cal.4th at p. 1172.) Moreover, a defendant hasthe right to place before the sentencer any relevant evidence in mitigation, including any aspect of his character. (People v. Carpenter, supra, -229- 15 Cal.4th 312; People v. Jackson (1996) 13 Cal.4th 1164.) The jury must be allowed to consider as mitigating any aspect of a defendant’s background,character or record that the defendant proffers as a basis for a sentence less than death. (Mills v. Maryland, supra, 486 U.S. 367, 373; Eddings v. Oklahoma, supra, 455 U.S. 104, 121; People v. Ochoa, supra, 19 Cal.4th 353; People v. Gordon (1990) 50 Cal.3d 1223.) Anybarrier, whether instructional, evidentiary, or statutory that precludesa juror from considering relevant mitigating factors is constitutional error. (See Skipper v. South Carolina (1986) 476 U.S. 1, 4.) Here the request for a continuance to present a necessary surrebuttal witness was based on the need to rebut the prosecution’s prejudicial gang evidence and to present relevant evidence in appellant’s case for life. Substantial justice was defeated by the denial of a sufficient continuance to obtain that evidence. Thetrial court instead forced appellant to face the jury’s determination of life or death without the aid of a witness whose testimony could have aided in the presentation of a compelling case forlife. Prejudice is readily apparent since the court’s refusal to grant the additional time to defense counsel made it impossible to meaningfully represent appellant and rendered the proceedings unreliable and fundamentally unfair. Further, prejudice is readily apparent from the refusal to allow counsel adequate time to revise her closing argument. Counsel expressed concern that she needed more time for her closing argument and demonstrated that a recess would have been useful both -230- # 3 € 3 8 € e s € R B € B £€ He € e e e e e F e U e U e ) for appellant’s sake and for the sakeof the jury in being able to fully focus on the argumentforlife. (See People v. Beeler (1995) 9 Cal.4th 953, 1003-1004.) The prosecutor did not claim that the continuance would inconvenience any of her witnesses, nor wasthere any evidencethat it would have been an undue burdento the jurors or the court. (Pen. Code, § 1050, subd. (g).) The request was reasonable under the circumstances and there was no burdento the court in continuing the matter. Further, allowing the additional time would have servedthe endsofjustice since the Eighth Amendment mandates a heightened “need forreliability in the determination that death is the appropriate punishmentin a specific case.” (Caldwell v. Mississippi, supra, 472 U.S. 320.) In the face of the denial of the overnight recess, appellant had only 15 minutes to reorganize her argumentin light of the refused instructions and prepare her rebuttal to the prosecution’s arguments for death. Counsel’s argument lasted only about 40 minutes, still taking the court past its 4:30 p.m. routine adjournmenttime and stunting the effort to present a case for life. Here, substantial justice was defeated by the denial of the continuancebythe trial court who instead allowed appellant to face a determination of life or death without the aid of fully prepared defense counsel who very well could have presented a compelling case for life had she been granted an overnight recess to organize her argument. The court’s refusal to grant any breathing room to defense counsel madeit impossible to meaningfully represent appellant, and rendered the proceedings unreliable, -231- and fundamentally unfair. The consequencesof the unreasonable denial of the continuancebythetrial court was a deprivation of appellant’s state and federal rights to counsel, reasonable access to the courts, to present a defense, effective assistance of counsel, a fair penalty determination, due process of law, a fair trial and equal protection of the laws. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 17, 24.) Theerrors are reversible perse, or alternatively is reversible since respondent cannot show it to have been harmless beyond a reasonable doubt. (Perry v. Leek (1989) 488 U.S. 272, 279; Chapman v. California, supra, 386 U.S. 18, 24, 17 L.Ed.2d 705, 87 S.Ct. 824.) Moreover, even under the standard articulated in People v. Watson, supra, 46 Cal.2d 818, the error is reversible becauseit is reasonably probable that had defense counsel been able to present a knowledgeable surrebuttal witness regarding appellant’s gang membership andbeen able to make a moredetailed and coherent case forlife in light of the instructions actually given by the court, the penalty phase result could have been more favorable. For the foregoing reasons, appellant respectfully requests that this Court reverse his death sentence. // // -232- XVI. THE “CIRCUMSTANCES OF THE CRIME” LANGUAGEIN PENAL CODE SECTION 190.3, SUBDIVISION (A) IS UNCONSTITUTIONALLY VAGUE AND OVERBROADAS APPLIED RESULTING IN THE TRIAL COURT ERRING IN ADMITTING THE EVIDENCE WITHOUT LIMITATION, OR EXCLUSION OF WITNESSES, AND WITHOUT AN APPROPRIATE JURY INSTRUCTION. A. Introduction The presentation of such irrelevant and emotionally charged “victim impact evidence in this case violated appellant’s state and federal constitutional guarantees to a fair trial, cross-examination and confrontation of adverse witnesses, due processof law, a fair trial, the right to affirmatively present evidence in one’s defense, right to effective assistance of counsel, and right to a reliable verdict and sentence (Cal. Const., art. I, §§ 7, 15, 17, 24; U.S. Const., Sth, 6th, 8th & 14th Amends.; Pen. Code, § 190.3; Evid. Code, §§ 210, 352.)2/ On November23, 1998, the prosecutorfiled a “statement in aggravation” 91 92 Asused herein, “victim impact evidence”refers to victim impact evidence as described in Payne v. Tennessee (1991) 501 U.S. 808, 827, and People v. Edwards (1991) 54 Cal.3d 787, 835-836, or as otherwise encompassed under Penal Codesection 190.3. Appellant acknowledgesthat the weight of California law on this subject is against him. (See e.g., People v. Cruz (2008) 44 Cal.4th 636; People v. Salcido (2008) 44 Cal.4th 93, 151; People v. Kelly (2007) 42 Cal.4th 763, 793; People v. Lewis, supra, 39 Cal.4th 970, 1056-1057; People v. Boyette (2002) 29 Cal.4th 381, 444; However, appellant asserts that the testimonial and photographic evidencepresentedin this case goes beyond “the nature and circumstancesof the crime”as intended by Penal Codesection 190.3, subdivision (a) and as limited by the United States Supreme Court in Payne v. Tennessee, supra. -233- announcingits intent to introduce aggravating evidencethat included victim impact evidence. The statementlisted six victim impact witnesses: Antonio Urrutia’s mother, sister and nephew and Andreas Encinas’ mother, sister and brother. (CT 783-784.) On February 8, 1999,the trial court overruled an objection by counsel that victim impact witnesses, particularly family members, should be excluded from the courtroom during each other’s testimony to avoid emotions from running too high.~ (16 RT 2494-2495.) On February 9, 1999, the prosecution presented the testimony of the Andreas Encinas’ sister Luz Gamez, his brother Sergio Encinas and his fiancee Paula Beltran. (17 RT 2632-2662.) The prosecution preceded its presentation against appellant by presenting victim-impact testimony and photographs through Urrutia’s sister Olivia Perez~’, his nephew Jabbar Soto and his mother Virginia Urrutia. (16 RT 2591-2607; 17 RT 2610-2623.) Thesiblings testified about their relationship with their brother from the time he was a child through going to the hospital the morning after the shooting and learning of his death. They also talked about how the death affected their parents and Luz Gamez’ 93 The court seemedto realize its mistake later when it noted that the victim impact evidence had turned into “something like a wake”for the victims families and it had “to stop somewhere.” (17 RT 2663-2664.) "4 The prosecution was allowed to recall Perez over defense objection after the testimony of Encinas’ victim impact witnessesto tell a story about her brother working at the IHOP and dressing up as a pancake. (17 RT 2663- 2667.) -234- children. Their testimony was aided by two photo boards containing eleven photos~~ showing: Encinas’ baptism (53-A); a photo from second grade (53-B); a photo of Encinas with his father (53-C); Encinas playing football at St. Anthony’s (53-D); a high school graduation photo (53-E); a Christmas dinner family photo (53-F); Gamez’ son’s graduation photo from St. Anthony with Encinas and Paula Beltran (54-A); a photo of Gamez’ son with Encinas (54-B), two family photos from Gamez’ wedding with their mother, brother Sergio, Luz’ kids, Encinas and Paula Beltran (54-C, E); and a photo of how Encinas looked when he waskilled. (54-D) (17 RT 2633-2635; Exs. 53, 54.)*% Paula Beltran testified through tears™’ that she was Encinas’ girlfriend and they planned to get married andstart a family together. Beltran blamed herself for the death because she called him to help her. She remembershim all the time and has nightmares. (17 RT 2659-2662.) The presentation of such evidence in this case was error. Moreover, the failure of the trial court to exclude the witnesses during each other’s testimony and to give a sufficient pinpoint instruction regarding how the evidence should be considered was ” The photo boards were marked and admitted into evidence as People’s Exhibits 53 and 54. (17 RT 2633, 2769.) °° While there were no objections made during the testimony, an objection by counsel would haveonly served to alienate the jury and wastactically impossible. *7 Beltran’s testimony hadto be halted several times due to her breaking down on the stand. -235- error. B. Standard of Review Whethera statute is unconstitutionally vague and overbroad is a pure question of law. Un re Sheena K. (2007) 40 Cal.4th 875, 887-888.) Pure questions of law are subject to the appellate court’s independent or de novo review. (People v. Cromer (2001) 24 Cal.4th 889, 894 n.1.) Further, a reviewing court also independently reviewsissues pertaining to jury instructions. (People v. Waidla, 22 Cal.4th 690, at pp. 733, 737 [““Whetheror not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is however predominantly legal. As such, it should be examined without deference”|.) Cc. The “Circumstances of the Crime” Language in Penal Code Section 190.3, Subdivision (a) is Unconstitutionally Vague and Overbroad. The “circumstances of the crime” language in Penal Codesection 190.3, subdivision (a) is unconstitutionally vague and its application in appellant’s case was unconstitutionally overbroad, thereby violating appellant’s constitutional rights.Due °8 Appellant recognizes that section 190.3, subdivision (a) has survived similar challenges. (Tuilaepa v. California, supra, 512 U.S. 967, 987-988; People v. Kraft (2000) 23 Cal.4th 978, 1078.) Neither of these opinions, however, discussed the issue of whether the factor regarding the circumstancesof the crime (§ 190.3, subd. (a)) is unconstitutionally vague or overbroad in the wake of Edwards, and subsequent decisions bythis Court allowing consideration of evidence and argumentof victim impact matters under the guise of circumstances of the crime. Appellant challenges the use of victim impact evidenceas an aggravating circumstanceas -236- t process requires that criminal statutes be reasonably definite. (Kolender v. Lawson (1983) 461 U.S. 352, 357.) In analyzing whethera statute is sufficiently definite to pass constitutional muster, the reviewing courts look not only at the language ofthe statute but also to legislative history and California decisions construing the statute. (People v. Bamba (1997) 58 Cal.App.4th 1113, 1120.) Here, prior to 1991, evidence of a murder’s impact on a victim and the victim’s family and friends was not admissible in the penalty phase ofa capital trial. (Booth v. Maryland (1987) 482 U.S. 496, 501-502; People v. Ochoa, supra, \9 Cal.4th 353, 455, fn. 9.) In 1991, the U.S. Supreme Court partially overruled its previous decision in Booth v. Maryland, supra, 482 U.S. 49, and held that the Eighth Amendmentdoesnot preclude a state from allowing victim impact evidence and statements that demonstrate a specific harm causeby the defendant’s crimes becauseit is relevant to a jury’s assessment of a defendant’s moral culpability. (Payne v. Tennessee, supra, 501 U.S. 808, 819.) This Court has read “evidence of specific harm” to include the impacton the family of the victim caused by the defendant’s acts as a “circumstance of the crime” under Penal Code section 190.3, subdivision (a). (People v. Salcido, supra, 44 Cal.4th 93, 151.) However,the only type of victim impact evidence addressed in Payne was unconstitutionally vague and overbroad, and fails to support a reliable penalty determination, underthe Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. -237- evidence describing the impact of the capital crimes on a family member who was personally present during, and immediately affected by, the capital murders.Moreover, the Court recognized that victim impact statements or evidence maypotentially render the sentencing proceeding fundamentally unfair. (/d., 501 U.S. at p. 825; Jd. at p. 831 (O’Connor, J., concurring); Jd. at p. 836 (Souter, J., concurring).) The Court indicated that it would violate the federal constitutional guarantee to due processof law to introduce victim impact evidence “that is so unduly prejudicial that it rendersthetrial fundamentally unfair....” (Jbid..) Payneleft undisturbed Booth’s prohibition against the victim’s family offering its opinion about the crime, the defendant, and the appropriate punishment. (/d., 501 U.S. at p. 830 n.2.) Further, Payne left undisturbed the rule “that the term ‘circumstancesof the crime’ did not include personal characteristics of the victim that were unknownto the defendantat the time of the crime.” (People v. Fierro (1991) 1 Cal.4th 173, 260, 264 (conc. & dis. opn. of Kennard, J.); South Carolina v. Gathers (1989) 490 U.S. 805, 811- 812, overruled on other grounds in Payne v. Tennessee, supra, 501 U.S. at p. 863.) In People v. Edwards, supra, 54 Cal.3d at pp. 835-836, this Court, for the first time, allowed consideration of evidence and argument regarding victim impact matters under section 190.3, subdivision (a), as “circumstances of the crime.” Edwards, however, ” This Court has declined to limit victim impact evidence to family members who were present during the crime. (People v. Brown (2004) 33 Cal.4th 382, 398.) -238- merely addressed photographs ofthe victims which were taken near the time ofthe crimes, in order to establish how the victims appeared to defendant when he committed the crimes against them. (54 Cal.3d at p. 828.) Edwards recognized that there are limits on the extent and content of victim impact evidence andheld that irrelevant or inflammatory rhetoric that diverts the jury’s attention from their proper focus, inviting irrational, purely subjective responses, should be curtailed. (People v. Edwards, supra, 54 Cal.3d at p. 833; See also People v. Robinson (2005) 37 Cal.4th 592, 644 [discussing the limits of victim impact evidence].) Indeed, in Edwards, supra, 54 Cal.3d 787, 835-836, this Court warned: “We do not now explore the outer reaches of evidence admissible as a circumstance of the crime, and we do not hold that factor (a) necessarily includesall forms of victim impact evidence and argument allowed by Payne[citation omitted]. ” The testimony and photographspresented in this case went beyond the recitation reviewed and contemplated in Payne,a recitation that was limited to a short responsethat the victim’s son, who waspresent during the crime, missed his motherandcried for his sister. (Payne v. Tennessee, supra, 501 U.S. at pp. 814-815.) By contrast, the testimony from Encinas’ older adult siblings was purely an emotional retrospective of Encinas’ life, while the testimony of his girlfriend was an emotional view into whathis future could have beenlike and the devastation felt by losing him. Gamez showed family photos of Encinasatall stages of his life including his baptism, a second grade photo, football photos, graduation photos and wedding photos -239- from Gamez’ wedding. The prosecution elicited how Encinas wasas a child. Gamez testified that Encinas “was a very loving child, well-mannered and very respectful. He was a normal, happy child.” who grew into a manthat “had his whole life ahead of him, a person that would help whoever neededit.” Gamez testified that Encinas wasvery close to his mother and father as well as Gamez’ son Edgar. The day of the murder,the family went to a wedding but Encinas had to work. Encinas’ motherstayed up all night waiting for him to come home. The next morning the family went to the hospital because they had heard Encinas had beenshot, but he died in surgery and they never got to see him alive again. Encinas mother and father’s health has declined considerably since Encinas’ death. The family could not tell Encinas’ father the trial was going on because he could not handle it. Encinas wanted to be a policeman and had passed his admissiontest into the LAPD two months before he waskilled. Encinas wasalso taking criminologyclasses at the Long Beach College. The prosecution asked Gamez to share a memory of Encinas and herself. Gamez told a story about how herbrotherused to call her “fatty” in Spanish. The prosecution asked Gamez what she would miss most about Encinas andshesaid “everything.” Whenaskedif there was anything else she would like to tell the jury about her brother Gamezstated: “That we don’t understand and we don’t know whycertain people took his life, took my brother’s life.” (17 RT 2633-2643.) Encinas’ brother Sergio testified that he and Encinas used to sleep together as children, play games and have competitions. Encinas grew into a 300-pound loveable -240- “teddy bear” that everyoneliked and had excellent friends. Encinas’ Dad was very proud of him for passing the LAPD Academytest. Sergio will miss Encinas’ smiling face the most. Sergio shared a memoryofriding Encinas home on his bike from school when Encinas wasin first grade and that Encinasgot his foot stuck in the spokes. Sergio talked about the Catholic grade school they went to and the sports Encinas played in. Then he talked about going to the hospital the day Encinas died and havingto identify the body before knowing that his brother had died. An officer took him to the morgue and pulled out a tray, opened a bag andit washis brother. Sergio then had to tell Encinas family that he was dead. Sergio confirmed that his parents were very sick and that they could nottell Encinas father that the trial was going on for fear of how it would affect him. Encinas’ death hadalso severely affected Sergio physically and emotionally, Sergio responded that the pain “will never go away.” (17 RT 2645-2654.) Encinas’ girlfriend Paula Beltran testified that although they were not formally engaged, they had given each other smiley face rings to symbolize their common dreams of getting married and having a family. Encinas wanted a boy first and wanted to name him Andres. Encinas also dreamed of becoming a policeman. Beltran blamesherself for his death and cannotstop thinking of them together doing different things. She falls asleep hoping to dream of him so she can see him again, but awakes with nightmares instead. (17 RT 2659-2662.) Although this Court has largely sanctionedthis type of testimony (see Peoplev. -241- Lewis, supra, 39 Cal.4th 970, 1056-1057; People v. Robinson, supra, 37 Cal.4th 592, 650-652), many other jurisdictions’ have recognized that muchofit is outside the scope intended by Payne. It bears repeating that the United States Supreme Court in Payne cautioned that the admission of victim impact evidence “that is so unduly prejudicial that it renders the trial fundamentally unfair . . .” violates the federal constitutional guarantee to due processof law. (Payne v. Tennessee, supra, 501 U.S. 808, 825 [111 S.Ct. 2597, 2608, 115 L.Ed.2d 720].) In People v. Hope, supra, 702 N.E.2d 1282, the Illinois Supreme Court interpreted the provisions of The Illinois Rights of Crime Victims and Witnesses Act to limit victim impact testimony to “a single representative who maybethe spouse, parent, child or sibling of a person killed as a result of a violent crime.” (See also New Jersey v. Muhammad, supra, 678 A.2d 164, 180.) In addition to the constitutional limits on victim impact evidence and the limitations required by Evidence Code section 352, it must be noted that Penal Code section 1191.1 provides in pertinent part that “the next of kin of the victim if the victim has died” may appearandtestify “at the sentencing proceeding .... While the statute was clearly enacted,inter alia, to assist victims in obtaining restitution, 00 (See e.g., People v. Hope (ill. 1998) 702 N.E.2d 1282; New Jersey v. Muhammad(1996) 145 N.J. 23, 54 [678 A.2d 164, 180]; State v. Hill (S.C. 1998) 501 S.E.2d 122, 128; Conover v. State (Okla.Crim.App. 1997) 933 P.2d 904, 921; Cargle v. State (Okla.Crim.App. 1995) 909 P.2d 806, 829- 830; Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330, 337; United States v. McVeigh (10th Cir. 1999) 153 F.3d 1166, 1221 & fn. 47.) -242- and not merely to assist the court in assessing the proper punishment, the statutory limitation on the type of witness—thatis, to “the next of kin of the victim’”—appliesto the penalty phase of a capital trial because, after all, the penalty phase is a “sentencing proceeding”andthe statute does not exclude capital trials from its reach. (Cf. State v. Hill, supra, 501 S.E.2d 122, 128, which concluded that the South Carolina statute authorizing victim impact statements at sentencing did not limit the scope of victim impact evidence in capital cases because the statute expressly “exclud[ed] any crime for which a sentence of death is sought... .”) Further, the statute’s description of a single victim impact witness, “or up to two of the victim’s parents or guardiansif the victim is a minor,” limits the prosecution to one victim impact witness at penalty phase, just as the Illinois Supreme Court interpreted the similar provisionsof the Illinois statute in People v. Hope, supra, 702 N.E.2d 1282. Additionally, “[c]omments about the victim as a baby, his growing up andhis parents’ hopesfor his future in no way provide insight into the contemporaneous and prospective circumstances surrounding his death; . . . [but] address only the emotional impact of the victim’s death . . . [and increases] the risk a defendant will be deprived of Due Process.” (Conover v. State, supra, 933 P.2d 904, 921.) In Cargle v. State, supra, 909 P.2d 806, 829-830, the Oklahomacourt also held it was error to admit testimony “portraying [the decedent] as a cute child at age four... ;” and “that he dressed up as Santa Claus, saved the county thousands of dollars by a personal fundraising effort, was a -243- 39talented athlete andartist, and was thoughtful and considerate to his family... . Moreover, in this case, the overbroad construction of the statute, resulted in admission of a plethora of photographs that were irrelevant, unduly prejudicial, cumulative and which contributed to rendering the penalty phase fundamentally unfair. Although a photograph of a murdervictim while alive is “generally admissible” in the penalty phase (People v. Carpenter, supra, 15 Cal.4th 312, 400-401), this is only so becauseit is relevant as a “circumstance of the crime” becauseit portrays the victim as seen by the defendant before the murder. (People v. Lucero (2000) 23 Cal.4th 692, 714- 715, citing People v. Cox, supra, 53 Cal.3d 618, 688.) It is improper to admit pre-mortem photographsof the victim which do not depict the victim as he or she appearedat the time of the murder, for example, as a child, during anotherera in the victim’s life, or dressed in particular uniformsor other special attire that were not related to the circumstancesof the murder. (Salazar v. State, supra, 90 S.W.3d 330, 337, holding that it was improper to exhibit childhood photographs of the victim since the defendant killed the victim when he was an adult, not a child, and the childhood photographs were extremely prejudicial, presenting a strong “danger of unconsciously misleading the jury.. .”) It has also been found improper to admit wedding photos. (United States v. McVeigh, supra, 153 F.3d 1166, 1221 and fn. 47.) Thus,here, only exhibit 54-D which depicted Encinas as he looked prior to his death was properly admitted as relevant to “circumstancesof the crime.” -244- Finally, as pointed out by the Texas high court: “the punishment phase of a criminaltrial is not a memorial service for the victim. What may beentirely appropriate eulogies to celebrate the life and accomplishments of a unique individual are not necessarily admissible in a criminaltrial.” (Salazar v. State, supra, 90 S.W.3dat pp. 335- 336.) Here, the trial court noted when the prosecution sought to recall Olivia Perez briefly for “memory” evidence regarding Urrutia dressing up as a giant pancake onceas part of his employment at IHOP: It’s not the issue of time. That’s not the problem. What concerns me,as long as the families of both victims are sitting here and they’re having something like a wake, I think, again,it’s thinking about the losses that they suffered. And they’re going to be experiences that come to mind, and they are going to remember. Andthereis a lot of benefit to them in talking about it. My concernis, it has to stop somewhere.” (17 RT 2663-2664.) Despite its concerns,the trial court allowed this final victim impact evidence over defense objection. (Jbid.) The overbroad application ofthe statute in this case resulting in the admission of a myriad of improper victim impact evidence crossed the line established by due process, and rendered the penalty phase of appellant’s trial unconstitutional and fundamentally unfair. Imposing capital punishmentin such a wayis arbitrary, and violates the Eighth Amendment. Moreover, because all murders have victims, and virtually all such victims have families or other loved ones, a victim impact aggravating factor does not “aggravate” a homicide, as required under the Eighth Amendment. (See Arave v. Creech (1993) 507 U.S. 463, 474 (“If the sentencerfairly could conclude that an aggravating -245- circumstance applies to every defendanteligible for the death penalty, the circumstance is constitutionally infirm”).) The instruction defining victim impact as an aggravating factor doesjust that. The validation of the death penalty in this country is premised on [T]he consensus expressed by the Court in Furman .. . that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a humanlife should be taken or spared, that discretion must be suitably directed and limited so as to minimizethe risk of wholly arbitrary and capricious action.”(Zant v. Stephens, supra, 462 U.S. 875, 103 S.Ct. 2733, 2741] quoting Gregg, 428 U.S. at 189 (opn. of Stewart, Powell and Stevens,JJ.).) Assuch,in determining whether a defendantis “eligible” for the imposition of death, “an aggravating circumstance must genuinely narrow theclass of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” (Zant, 103 S.Ct. at p. 2742.) Where an aggravating circumstancefails to “channel the sentencer’s discretion by ‘clear 999and objective standards’ that provide ‘specific and detailed guidance,’” then its use violates the Eighth Amendment. (Godfrey v. Georgia, supra, 446 U.S. 420, 428 [100 S.Ct. 1759, 1764-1765].) Thus, in Godfrey, the court found unconstitutionally vague and standardless Georgia’s use as an aggravating factor that a murder was “outrageously or wantonly vile, horrible or inhuman”; it did so on the premise that “[t]here is nothing in these few words, standing alone, that implies any inherentrestraint on the arbitrary and -246- capriciousinfliction of the death sentence” because “[a] person of ordinary sensibility could fairly characterize almost every murderas ‘outrageously or wantonly vile, horrible and inhuman.’” (Godfrey, 100 S.Ct. at p. 1765.) Although victim impact evidenceis constitutionally relevant as an explanation,it is not a permissible aggravating factor on its own. It suffers from every vice condemned in Godfrey. This court should reconsider whetherthis aggravating factor adequately channeled the sentencer’s discretion by narrowing the class of personseligible for the death penalty, and find that the use of such evidence for this purpose in appellant’s case violates the federal Constitution. D. The Trial Court Erred in Its Refusal of Defense Special Instruction No. 14, and the Modified Version of Caljic 8.84.1 Given by the Trial Court to Satisfy the Instructional Deficiency Failed to Sufficiently Instruct the Jury Regarding the Proper Use of “Victim Impact Evidence.” Thetrial court breachedits instructional obligation by failing to instruct the jury on the proper use of victim-impact evidence.’ Emotional victim impact evidence whichis likely to provoke arbitrary or capriciousaction violates the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, andarticle I, sections 7, 15, 17, and 24 of the California Constitution. (See, Gregg v. Georgia, supra, 428 U.S. 153, 189: “where discretion is afforded a sentencing body on a matter so grave as the determination of rol This Court has previously rejected the argumentthat a trial court must instruct the jury not to be influenced by emotion resulting from victim impact evidence. (People v. Carey (2007) 41 Cal.4th 109, 134.) -247- whether a humanlife should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action”; Gardner v. Florida (1977) 430 U.S.349, 358: “It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appearto be, based on reason rather than caprice or emotion”; see, also, Godfrey v. Georgia, supra, 446 U.S. 420, 428). Here, two of Encinassiblings, and his girlfriend testified for the prosecution as victim-impact witnesses. This followed the emotional and extensive testimony of Urrutia’s sister, nephew and mother. Taken together, their testimony inevitably had a strong emotional effect on the jury. During penalty-phase closing argument, the prosecution recounted the victim impact evidence stating: [Paula Beltran] will never forget it. She feels horrible, guilty. She is going to carry that guilt for the rest of her life. The blame rests solely on the defendants. { Anthony was Virginia Urrutia’s only son. She will never have grandkids from him, her only natural child. Andy’s sister and brother cannottell their dad this trial is going on. He couldn’t take the pain and he wouldn’t be able to control himself. Sergio had to identify him with no warning. Luz has a son that grew up with Andy, she couldn’t tell him either because they were best of friends and this is too tortuous. Javier Soto said they were like brothers, and Anthony always made him laugh. All of that goes under Factor A. Paula was going to have a future and children with Andy. That’s all gone. Think of her misery day in and dayout. (20 RT 3205-3207.) Shortly thereafter the court had to take a recess because Paula Beltran and Virginia Urrutia had been audibly crying and the jurors kept looking at them. (20 RT 3214-3215.) Shortly after the recess, the prosecution commented on appellant’s inability to hold his -248- children except “through the glass” since he wasincarcerated. She stated: Well, you know what? That’s all well and good. But you know what? Where is Sergio going to look throughglass to see his relative? Where is Luz going to see her brother? Where is Paula going to see her future fiancé and her future husband? §] Virginia, she can’t look through the glass and say “Hi” and communicate with Anthony. They only can look through dirt and ground at the cemetery and get no correspondence, no feedback, no nothing. Just empty void, looking at dirt at a cemetery. { So the fact that poor defendant Rangel can onlysee his kids through glass, if they could only be so lucky. I’m sure they,too, if they were here would choose to see their family for the rest of their life through glass than underneath six feet in the ground... .... And remembertheir families and what was taken away. {| And you know,you havepictures of the defendant’s families. And that’s all well and good. But you know what? Nobody in these families caused the tragedy. Nobody. The people that caused these tragedies are these two defendants. They are to blame andthey need to be punished. And the only punishment that is warranted in this case is death. (20 RT 3233, 3235.) The jury wasnot sufficiently instructed on howto deal with those emotions in the determination of life or death. The trial court is responsible for ensuring that the jury is correctly instructed on the law. (People v. Murtishaw (1989) 48 Cal.3d 1001, 1022.) “In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence.” (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) The court must instruct sua sponte on those principles which are openly and closely connected with the evidence presented andare necessary for the jury’s proper understanding of the case. (People v. Breverman, supra, 19 Cal.4th 142, 154.) “Because of the importance of the jury’s decision in the sentencing phase of a death penaltytrial, it is imperative that the jury be guided by proper legal principles in reaching its decision.” -249- (Turner v. State (Ga. 1997) 486 S.E.2d 839, 842.) “Allowing victim impact evidence to be placed before the jury without properlimiting instructions has the clear capacity to taint the jury’s decision on whetherto imposedeath.” (State v. Hightower (N.J. 1996) 680 A.2d 649, 661.) “Therefore, a trial court should specifically instruct the jury on how to use victim impact evidence.” (State v. Koskovich (N.J. 2001) 776 A.2d 144, 181.) Here, appellant requested Special Instruction No. 14 as follows: Evidence has been introduced for the purpose of showing specific harm caused by the defendant’s crime. Such evidence, if believed, was not received and maynot be considered by you to divert your attention from your properrole of deciding whether the defendant should live or die. You must face this obligation soberly and rationally, and you may not impose the ultimate sanction as a result of irrational, purely subjective response to emotional evidence and argument. (4 CT 1070, citing People v. Edwards (1991) 54 Cal.3d 787.) Thetrial court indicated its intent to refuse the instruction stating that it was covered by CALIIC 8.88, that it was alright to argue, but “it’s not instruction in the law.”?~’ Defense counsel respondedthat “this is specific case law that’s taken directly from People v. Edwards.” The court refused the instruction. (20 RT 3137-3138; 5 CT 1070.) Co- 2 CALJIC 8.88 “Penalty Trial — Concluding Instruction” was given sua sponte and did not mention victim impact evidence, howevertold the jury that in “the weighing of aggravating and mitigating circumstances.... You are free to assign whatever moral or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider. ” (5 CT 1211; See also Argument II.C.2, supra.) -250- defendant Mora requestedidentical“language be added to CALJIC 8.85 (5 CT 1215- 1216; 19 RT 3057, 20 RT 3112-3114, 3 121-3122.) The prosecution objected to Mora’s requested instruction stating: “that’s inaccurate. It’s victim impact. It’s totally discounting every victim impact witness the People put on, and therefore it should not be stated that way.” Defense counsel respondedthatall of the principles in her proposed instruction were taken from People v. Edwards, supra, 54 Cal.3d 787. (20 RT 3121- 3126.) The prosecution also noted that victim impact evidence should be entitled to more weight than other aggravating factors. The trial court responded: “If they, the jury, determine that the emotional impact on the victims’ surviving family outweighs everything else, and that alone justifies a decision to impose death as the penalty, thatis certainly appropriate.” (20 RT 3125-3126.) The court held that the last paragraph of CALJIC 8.84.1 covered the same concernsandinstructed the jury with a modified version of CALJIC 8.84.1 “Duty of Jury — Penalty Proceeding”as follows: You will now be instructedasto all of the law that applies to the penalty phase of this trial. You must determine what the facts are from the evidencereceived during the entire trial unless you are instructed otherwise. You must accept and follow the law that I shall state to you. Disregard all other instructions given to you in other phasesofthis trial. { You must neither be influenced by bias nor prejudice against the defendant, nor swayed bypublic opinion or public feelings. Both the 103 The language wasidentical to that above and added onesentence: “On the other hand, evidence and argument on emotional through relevantsubjects may provide legitimate reasons to sway the jury to show mercy.” (5 CT 1216.) -251- People and the Defendant have a right to expect that you will considerall of the evidence, follow the law, exercise your discretion conscientiously, and reach a just verdict. You mustface this obligation soberly and rationally and may not reach any decision as an irrational response to emotional evidence or argument. (Modification in italics; Jd.; 5 CT 1193.) This single line non-specific “add-on” was woefully inadequate to cover the very real concernsraised by the admission of victim impact evidence. The modified version of CALIJIC 8.84.1 does not explain why victim impact evidence was introduced. It does not warn jurors not to consider what they mayperceive to be opinionsof the victim-impact witnesses — a Clearly improper factor (Payne v. Tennessee, supra, 501 U.S. at p. 830 fn. 2; People v. Pollock, supra, 32 Cal.4th 1153, 1180; People v. Smith (2003) 30 Cal.4th 581, 622.) Nor does it admonish them not to employ the improperfactor of vengeance in their penalty determination. (See e.g., Drayden v. White (9th Cir. 2000) 232 F.3d 704, 712- 713.) Given the emotional testimony of the victims’ families and Encinas’ girlfriend,it is an understatement to say that there was a very real danger that emotion would overcome the juror’s reason preventing them from making a rational penalty phase decision, unless the trial court gave them guidance on howthe victim-impact evidence should be used. An appropriate limiting instruction was necessary for the jury’s proper understanding of the case, and therefore it should have been given either on request of the parties or on the court’s own motion. (See generally People v. Koontz, supra, 27 Cal.4th at p. 1085; People v. Breverman, supra, 19 Cal.4th at p. 154; People v. Murtishaw, supra, 48 Cal.3d atp. -252- 1022.) The failure to deliver an appropriate limiting instruction violated appellant’s right to a decision by a rational and properly-instructed jury, his due processright to a fairtrial, andhis right to a fair and reliable capital penalty determination. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, 17.) E. The Admission of the Victim-Impact Evidence in This Case Was Prejudicial and Requires Reversal. The violations of appellant’s federal constitutional rights require reversal unless the state can show that they were harmless beyond a reasonable doubt. (Chapmanv. California, supra, 381 U.S. 18, 24.) The violations of appellant’s state rights require reversal if there is any reasonable possibility that the errors affected the penalty verdict. (People v. Brown, supra, 46 Cal.3d 432, 447-448.) In view of the emotional nature of the victim-impact evidence presented in this case and the prosecutor’s repeated and effective use of that evidence during her closing argument, the trial court’s error in admitting the evidence without excluding the testifying witnesses and doing so without proper instruction, cannot be considered harmless, and therefore reversal of the death judgment is required. / // -253- XVII. THE TRIAL COURT?’S FAILURE TO CONDUCT AN EVIDENTIARY HEARING ON THE DEFENSE ALLEGATIONS OF JUROR MISCONDUCT REQUIRES THAT THE DEATH JUDGMENT MUST BE REVERSED AND THE CASE REMANDED FOR A HEARING TO RESOLVE DOUBTS ABOUT THE JURORS’ IMPARTIALITY. A. Introduction Thetrial court possessed information from defense attorneys demonstrating a strong possibility that prejudicial juror misconduct had occurred during the jurors’ penalty phase deliberations. This information imposeda duty onthetrial court to hold a hearing to resolve the matter. The trial court violated this duty, and failed to conduct any type of inquiry at all into the allegations of juror misconduct. Thetrial court’s failure to take any steps to resolve this issue, (which, paradoxically, the trial court believed was “an issue of significance and concern” that “should be explored fully’), violated appellant’s Fifth, Sixth, and Fourteenth Amendmentrights to due processanda fair trial by an impartial jury, and his Eighth and Fourteenth Amendmentrights to a reliable determination that the state should be allowed to execute him. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 15, 24, 29.) The death judgment mustbeset aside, and appellant’s case must be remanded to the superior court for a hearing on the allegations of juror misconduct raised by the defense. After the death verdict, Mora’s trial attorneys filed a written motion requesting a new trial and accessto the jurors’ names and contact information in order to investigate apparent misconduct during the jury’s penalty deliberations. Appellant’s attorney joined -254- in motion. (45 CT 11759-11769, 11821; 21 RT 3310; see Code Civ. Proc., § 237.) Counsel informed the court that the defense attorneys spoke with someof the jurors after the penalty verdict and learned that at least two jurors based their decisions to impose the death penalty on evidence that had not been presented at the penalty trial, and that one of these jurors had refused to consider or deliberate on the mitigation evidence presented by the defense. (45 CT 11761, 11768.) The defense motion relayedto the trial court that juror No. 2 told the defense attorneys that based on his military training and experience, he knew that a shot to the head meantthe shooter intended to commit an “execution,” and wastherefore able to determine that Mora had “executed” Anthony Urrutia. (45 CT 11761.) This juror told the defense attorneys that he shared his training and experience and the conclusion he deduced therefrom with the other jurors, and that this was the only information he considered in determining Mora should be sentenced to death. (/bid.) Juror No. 7 told the defense attorneys that she changed her verdict based in part on Juror No. 2's conclusion that Mora committed an execution. (/bid.) This juror said that deliberations as to Rangel were brief due to his overall reprehensible conduct, and even though he did not commit an execution, the jury determined death was his appropriate punishment. (/bid.) This juror said she was convincedby other jurors that Mora had paged Rangelbefore the shootings,“and that Mora had plannedthe execution and 104 Neither the guilt phase evidence, nor the prosecution’s penalty phase evidence in aggravation, showed Mora paged Rangelprior to the murders. The only evidence that Rangel had been paged waspresented by Rangelin -255- intended solely to execute, and not to rob, Urrutia - which contradicted the jury’s guilt verdicts.” ([bid.) The defense stated that in light of the jurors’ statements, they needed to investigate whetherthere wasin fact juror misconductin this case. (45 CT 11763, 11766.) However, without further access to the jurors, the defense had no way to conductthis investigation and supply the requisite declarations from these, and possibly otherjurors, that could establish misconduct. (/bid.) According to a declaration drafted by Mora’s counseland attached to the request, the first juror (Juror No. 2) told the defense attorneys that based on his military training and experience, he knew that shooting someone in the head meant the shooter planned to execute the victim. (45 CT 11768.) The juror said he therefore was able to determine that Mora’s conduct in shooting Urrutia in the head amounted to an “execution.” (Jbid.) Juror no. 2 said that once he determined this was an execution, he automatically concluded Mora also must be executed, without considering any of the other evidence presented in his case-in-mitigation, when Rangel’s father testified that on the night of the murder, Rangel was drunk and attempting to get some sleep when “someone beeped him on the beeper.” (18 RT 2883.) 105 The prosecution argued during penalty phase closing argument, contrary to its theory during the guilt phase, that Mora and Rangel’s sole goalthat night wasto kill, that they had a plan to kill from the beginning and that they just asked for the victims wallets for fun. The prosecution also argued, without objection, that Rangel specifically intended to execute the victims, it was just a matter of when. (20 RT 3198-3203) -256- the penalty trial. (7bid.) It is safe to say that Juror No. 2 harbored similar feelings for Rangel. The secondjuror (Juror No. 7) said she changed her penalty decision to a vote for death based on jury room discussions that Mora committed an execution. (/bid.) Counsel declared that there appeared to be juror misconductin this case, the extent of which could not be determined until the defense had the opportunity to speak further with the jurors. ([bid.) Counsel said that under court order, the defense had no namesand contact information for the jurors, and requested access to that information under Codeof Civil Procedure section 237 so the defense could investigate and, if appropriate, present evidence ofjuror misconductin a motion for newtrial. (45 CT 11768-11769.) Thetrial court believed the information received from the defense raised “an issue of significance and concern”that “should be explored fully” before taking any further action in this case. (21 RT 3310.) Thetrial court set a hearing for the release of the jurors’ contact information, and said the court clerk would mail notice of that hearing to the jurors. (21 RT 3309-3314; 45 CT 11819-11820; 11823-11825.) The court apologized to spectators who had cometo court expecting to see appellants be sentenced,and said that it was postponing the sentencing hearing because “in all cases, but in particularly cases in whichthe penalties are as severe as this, I want to be extra careful that every legitimate issue that needs to be resolved be thoroughly heard and resolved prior to sentencing.” (21 RT 3313.) -257- At the hearing on the release ofjuror information, the court said the court clerk had heard back by phonecall or in writing from jurors no. 4, 5, 6, 7, 8, 9, and 10, and that these seven jurors did not wanttheir contact information disclosed. (21 RT 3318.) The court said that jurors nos. 1 and 2 were in court, along with jurors nos. 6, 8, and 9, and that these two jurors also informed the clerk that they did not want their information released. (U/bid.) The court ruled that because these jurors did not want their contact information released, it was denying the defense request for access to this information. (21 RT 3319.) The court told those jurors who were in court that the defense might attempt to communicate with them after the hearing, and it was their decision as to whether they wished to talk to the defense. (21 RT 3319.) The court said that jurors nos. 3, 11, and 12 had not contacted the court and it therefore would release these jurors’ names and contact information to the defense. (21 RT 3319; 45 CT 11826, 11828.) Appellant subsequently filed a motion for a new penalty trial, based on the jury misconduct that somejurorshad initially described to counsel, and on information obtained from one of the jurors whose nameand contact information had beenreleased, which indicated the jurors had used appellant’s penalty phase mitigating evidence as a basis for a sentence of death. (45 CT 11829-11839.) The defense argued that the facts these jurors relayed to the defense attorneys created a presumption of prejudicial juror misconduct. (/bid.) The defense also argued that to the extent further investigation was needed to support a misconduct claim, they had no way of conducting that investigation -258- mae em was-0, Rest Spe wees absentaccessto the jurors, and the absence of any meansto further investigate this matter deprived appellant of his constitutional guarantees to due process, equal protection, and a fair trial“ (Ibid.) The defense motion again informed the court that after the verdict, one juror told the defense attorneys that he shared his “execution” opinion, which he wasable to form based on his military training and experience, with the other jurors, and that this was the only information he considered in determining that Mora should also be executed. (45 CT 11831, 11838-11839.) Another juror said she changedherverdict from life to death because she was convincedby other jurors that Mora had paged Rangel, and that Mora’s intent wasnot to rob the victims, but solely to execute them. (Jbid.) Co-counselin his declaration also informed thetrial court that he had talked to one of the three jurors whose contact information was released to the defense attorneys, and that this juror told counsel that the jurors considered the fact that “these murders would never have occurred if Mora had not pagedor called Rangel that evening.” (45 CT 11839.) As co-counsel noted, the juror’s statement indicated that the jurors used mitigating evidence presented by Rangel’s defense as a basis for determining the death verdicts. (bid.) Thetrial court denied the motion for a new trial. (21 RT 3353; 45 CT 11916.) In doing so, the court said it believed counsels’ declarations were inadmissible hearsay, but 06 The defense motion to modify the penalty verdict to life without parole was based in part on the same arguments. (45 CT 11841-11848.) -259- that it had nevertheless considered the declarations and found them insufficient to establish actual misconductby the jurors. (21 RT 3352-3353.) The court said it understood the defense was unableto further investigate misconduct becausethe jurors would nottalk to them, but said there was no requirement underthe law that the jurors talk to anyone, including the court. (21 RT 3353.) The court said that because the defense could not provide enough information to establish actual juror misconduct,it had to assumethere had been none. (/bid.) B. Standard of Review In reviewing a trial court's ruling on a motion for newtrial, the reviewing court applies the abuse of discretion standard. (People v. Staten (2000) 24 Cal.4th 434, 466.) Jury misconduct may constitute grounds for a new trial. (Pen. Code § 1181, subd., (2); People v. Garcia (2001) 89 Cal.App.4th 1321, 1338.) “ “In ruling on a request for a new trial based on jury misconduct,thetrial court must undertake a three-step inquiry. [Citation.] First, it must determine whetherthe affidavits supporting the motion are admissible. (Evid.Code, § 1150.) If the evidence is admissible, the trial court must determine whetherthe facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whetherthe misconduct wasprejudicial. [Citations.] A trial court has broad discretion in ruling on eachof these issues, and its rulings will not be disturbed absent a clear abuse of discretion. [Citations.]’ [Citation.]” (People v. Garcia, supra, 89 Cal.App.4th at page 1338; see also People v. Duran (1996) 50 Cal.App.4th 103, 112-113.) Misconductrequires reversal on appeal where it can be shownthe jury’s impartiality was adversely affected, the burden of proof waslightened, -260- a: or a defense was removed. (People v. Harper (1986) 186 Cal.App.3d 1420; People v. Martinez (1978) 82 Cal.App.3d 1, 22.) Further, the verdict must be set aside if there is a substantial likelihood that the misconductinfluencesat least one juror. (In re Hamilton, supra, 20 Cal.4th 273, 293; In re Carpenter, supra, 9 Cal.4th 634,653.) Whenthereare issues of fact concerning juror misconduct, the trial court may, in its discretion, conduct an evidentiary hearing to resolve disputed facts. (People v. Hedgecock (1990) 51 Cal.3d 395, 415,419; People v. Williams, supra, 16 Cal.4th 635, 686.) The court, in its discretion mycall jurors to testify at the hearing but examination ofjurors should not invade the mental processes of the jurors. (Hedgecock, supra,at p. 418.) In determining whether misconduct occurred, the reviewing court acceptsthetrial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. (People v. Garcia, supra, at p. 1338.) The decision not to conduct an evidentiary hearing is reviewed for an abuseof discretion. (People v. Hedgecock, supra, 5| Cal.3d at p. 414-415.) Cc. The Trial Court Erred in Failing to Hold an Evidentiary Hearing on the Allegations of Jury Misconduct During Penalty Phase Deliberations. Whetheror not the defense attorneys’ declarations were admissible as proof of actual juror misconduct, and regardless of whether the defense attorneys representations to the trial court were themselvessufficient to establish such misconduct, this information was morethansufficient to alert the court to the strong possibility of prejudicial juror -261- misconduct. Once it became aware of this information,the trial court had a duty to make its own inquiry into the allegations of juror misconduct. “[wJhen trial court is aware of possible juror misconduct, the court must make whatever inquiry is reasonably necessary to resolve the matter.” (People v. Hayes (1999) 21 Cal.4th 1211, 1255, quoting People v. Hedgecock, supra, 51 Cal.3d at p. 417, internal quotation marks omitted].) As stated in People v. Engelman (2002) 28 Cal.4th 436, 442, a trial court “does have a duty to conduct reasonable inquiry into allegations of juror misconduct[.]” The Ninth Circuit Court of Appeals has held the same. “A court confronted with a colorable claim of juror bias must undertake an investigation [that is] reasonably calculated to resolve the doubts raised about the juror’s impartiality.” (Dyer v. Calderon, supra, 151 F.3d 970, 974-975, citing Remmer v. United States (1956) 350 U.S. 377, 379; Remmerv. United States (1954) 347 U.S. 227, 230.) As that court explained: Given the extremely delicate situation when a juror is suspected of prejudice or misconduct, the trial judge must assumethe “primary obligation . . . to fashion a responsible procedure for ascertaining whether misconduct actually occurred and if so, whether it was prejudicial.” .. . Where juror misconductor biasis credibly alleged, the trial judge cannot wait for defense counsel to spoon feed him everybit of information which would makeout a case ofjuror bias; rather, the judge has an independent responsibility to satisfy himself that the allegation of bias is unfounded. (Dyer v. Calderon, supra, 151 F.3d at p. 978.) While courts have “considerable discretion” in determining how to conduct the mandated inquiry into possible juror misconduct (People v. Prieto (2003) 30 Cal.4th 226, -262- a0 eae mn teers 274), the trial court here appears to have been unawarethat it even had a duty to conduct a reasonable inquiry into the defense allegations ofjuror misconduct. Indeed, it appears the trial court was unawarethatit had the authority to do so. Thetrial court believed that the defense allegations raised “an issue of significance and concern”that needed to “explored full” prior to it making any further decisionsin this case. (21 RT 3310.) According to the court, the information relayed by the defense attorneys raised an “issue that needs to be resolved[,] be thoroughly heard and resolved prior to sentencing.” (21 RT 3313.) Nevertheless, the court mistakenly believed that once the jurors indicated they did not want to talk to or be contacted by the defense, there was no further meansof inquiring into the possibility ofjuror misconduct. As stated and believed bythe trial court, the jurors were not requiredto talk to “the court or anyone else, for that matter. It is entirely a private issue[.]” (21 RT 3353.) In light of the court’s mistaken view that it was precluded from conducting a further inquiry into the possibility ofjuror misconduct, the court cannot be deemedto have exercised any discretion whatsoeveron this matter. (See People v. Massie (1967) 66 Cal.2d 899, 917-918; see also In re Carmaleta B. (1978) 21 Cal.3d 482, 496 [“where fundamentalrights are affected by the exercise of discretion of the trial court ... such discretion can only be exercised if there is no misconception bythetrial court as to the legal basesforits action”]; People v. Davis (1984) 161 Cal.App.3d 796, 802 [court abusedits discretion where it was “misguided asto the appropriate legal standard to guide the exercise of -263- discretion’’].) Moreover, even had thetrial court recognized its duty, which is not supported by the record, and evenif the court’s failure to make any inquiry whatsoeverto resolve the defense allegations ofjuror misconduct could somehow be considered an exercise of discretion on the matter, it plainly abused that discretion. Courts have “considerable discretion” in determining how to comply with their duty to conductan inquiry into possible juror misconduct. (People v. Prieto, supra, 30 Cal.4th at p. 274.) However, where the defense comes forward with evidence that raises a “strong possibility that prejudicial misconducthas occurred” and that reveals the existence of a factual issue that needs to be resolved,the trial courtis “required” to hold an evidentiary hearing on the matter. (People v. Schmeck (2005) 37 Cal.4th 240, 295; see People v. Avila (2006) 38 Cal.4th 491, 604; People v. Brown (2003) 31 Cal.4th 518, 581-582; People v. Hedgecock, supra, 51 Cal.3d at p. 415, 419.) At that evidentiary hearing,the trial court - and if the court choosesto allow, the attorneys - may question the jurors on the allegations of misconduct. (People v. Hedgecock, supra, 51 Cal.3d at pp. 418-419; see People v. Avila, supra, 38 Cal.4th at p. 604 [court may permit the parties to call jurorsto testify at the evidentiary hearing].) This Court has stated that, “Normally, hearsay is not sufficient to trigger the court’s duty to make further inquiries into a claim ofjuror misconduct.” (People v. Avila, supra, 38 Cal.4th 491, 605, quoting People v. Hayes, supra, 21 Cal.4th at p. 1256, -264- eet a emphasis added.) This case, however,is not the norm. The information in the defense motions and declarations came from thetrial attorneys, whose representations of fact, madeasofficer of the court, could properly be relied upon bythetrial court in determining whether there existed a strong possibility of prejudicial juror misconduct. The United States Supreme Court has long recognized that, as an officer of the court, an attorney’s representationsto the trial judge on matters before the court are to be afforded considerable credence. (See Holloway v. Arkansas (1978) 435 U.S. 475, 485- 486, internal quotation marks omitted [“[A]ttorneys are officers of the court, and when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.”].) Without expressly stating so, the Court has implicitly adopted this reasoning in the context of whethera trial court needs to hold an evidentiary hearing into potential jury misconduct. In People v. Brown, supra, 31 Cal.4th 518, the prosecutor and defense attorneys spoke with the jurors after the penalty verdict in a capital case, and the jurors stated they wereafraid of retaliation from the defendant’s gangas a result of their verdict. (/d. at p. 581.) The attorneys relayed the content of their discussions with the jurors to the trial court in declarations, and based on those declarations, the defense movedfor a newtrial grounded on juror misconduct. (/bid.) On appeal, the Court was asked to determine whetherthetrial court erred in failing to hold an evidentiary hearing on the matter. (/bid.) The Court decided this issue by reviewing the attorneys’ statements relaying what the -265- jurors had told them in order to determine whetherthis evidenceraised a strong possibility that prejudicial misconduct had occurred, without any indication whatsoever that the attorneys’ declarations wereinsufficient for this purpose.“(Jd. at p. 582.) Unlike Brown, however, where the information relayed by the attorneysto the trial court established that the jurors’ concernsofretaliation did not affect their deliberations, and therefore failed to show possible prejudice and a disputed material fact (People v. Brown, supra, 3\ Cal.4th at p. 582), the information presented here plainly warranted an evidentiary hearing. The defense attorneys’ motions and declarationsalerted the court that one juror claimed to have reached his penalty decision by considering only that one execution deserves another, and by refusing to consider any of the other evidence in the penalty trial (45 CT 11761, 11768, 11831, 11838, 11839), notwithstanding the fact that this juror was instructed to consider andtake into account all of the trial evidence (5 CT 1194-1195; 1211-1212; 20 RT 3176-3179, 21 RT 3294-3296), and had previously declared during jury selection that he would so. (43 RT 11186, 11191; see; In re Hamilton, supra, 20 Cal.4th at p. 305 [“A sitting juror commits misconduct by violating her oath, or by failing to follow the instructions and admonitions given bythetrial court.”]; People v. Williams (2001) 25 Cal.4th 441, 449, citing People v. Daniels (1991) 107 In People v. Medina (1995) 11 Cal.4th 694, 731, the Court applied similar reasoning in the context of a shackling claim, holding the trial court could base its shackling determination on the prosecutor’s representations, made as an officer of the court, that there was evidentiary support for restraining the defendant. -266- 52 Cal.3d 815, 865 {misconduct where juror violates the court’s instructions]; People v. Majors (1998) 18 Cal.4th 385, 417, citing In re Hitchings, supra, 6 Cal.4th 97, 111 [juror who conceals facts or gives false answers during selection process commits misconduct].) The attorneys motions and declarations further alerted the trial court that this juror claimed to have military training and experiencethat allowed him to conclude that the manner in which Morashot Urrutia established an “execution,” and that this special training and experience wasdiscussed in the jury room to convince hold-outjurors that someone who commits an execution should be executed himself, and to convince jurors that contrary to the jury’s guilt verdicts, Mora’s goal wassolely to execute and not to rob Urrutia. (45 CT 11761, 11768, 11831, 11838, 11839; see In re Malone (1996) 12 Cal.4th 935, 963 [“injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct.”]; see also Jeffries v. Wood (9th Cir. 1997) 114 F.3d 1484, 1490, overruled on other grounds by Lindhv. Murphy (1997) 521 U.S. 320 [“When a juror communicates objective extrinsic facts regarding . . . the alleged crimesto otherjurors, the juror becomes an unsworn witness within the meaning of the Confrontation Clause.”].) The court also was alerted that the jurors considered the facts that the killings were planned, andthat those killings would not have occurred had Mora not paged Rangel that evening (45 CT 11761, 11831, 11839), even though neither the evidence presented at the guilt phase of trial, nor the prosecution’s evidence in aggravation, established those facts. -267- (See People v. Nesler, supra, 16 Cal.4th 561, 581, citing Smith v. Phillips, supra, 455 U.S. at p. 217, In re Carpenter, supra, 9 Cal.4th 634, 648, 656 [“An impartial juroris someone ‘capable and willing to decide the case solely on the evidence presented at trial.”]; Patton v. Yount (1984) 467 U.S. 1025, 1037, fn. 12 [noting “[t]he constitutional standard that a juror is impartial only if he can . . . render a verdict based on the evidence presented in court[.]”].) All of this information conveyedto the trial court a “strong possibility” that prejudicial misconducthas occurred, and it presented to the court the disputed question of whether such misconduct had in fact occurred and affected the jurors’ deliberations on whether appellants would live or die. The trial court knew that the defense attorneys were unable to further investigate the alleged misconduct themselves because the jurors would nottalk to them (21 RT 3353), and it should have recognized that an evidentiary hearing at which it could compel the jurors to confirm or deny the information initially relayed to the defense attorneys was the only means available to determinethe truth or falsity of this information. Even if the information before the trial court was notin itself sufficient to establish actual juror misconduct,it was more thansufficient to trigger the court’s duty to conduct an evidentiary hearing on the issue. D. Appellant Was Prejudiced By the Lack of an Evidentiary Hearing on the Juror Misconduct Claims and The Penalty Phase Must Be Reversed. Thetrial court’s failure to conduct a hearing into the defense allegations ofjuror -268- misconduct implicates appellant’s rights under the Fifth, Sixth and Fourteenth Amendments to due process and a fundamentally fair trial by an unbiased jury. (See /rvin v. Dowd, supra, 366 U.S. 717, 722 [Sixth Amendment “guarantees to the criminally accuseda fair trial by a panel of impartial, ‘indifferent’ jurors.”]; Jn re Hitchings, supra, 6 Cal.4th at p. 110, quoting People v. Galloway (1927) 202 Cal. 81, 92 [“The right to unbiased and unprejudicedjurors is an inseparable and inalienable part of the rightto trial by jury guaranteed by the Constitution.”]; Dyer v. Calderon, supra, 151 F.3d at p. 973 [bias or prejudice of even a single juror violates the right to a fairtrial].) In the absence of such hearing, the death verdict rendered in this case cannot meetthe constitutionally recognized requirementof heightened reliability in the determination that death is the appropriate penalty in a capital case. (U.S. Const., 8th & 14th Amends.; see Gilmorev. Taylor (1993) 508 U.S. 333, 342; Herrera v. Collins (1993) 506 U.S. 390, 405; Mills v. Maryland, supra, 486 U.S. at pp. 376-377; Caldwell v. Mississippi, supra, 472 U.S. at p. 340; Zant v. Stephens, supra, 462 U.S.at pp. 884-885; Woodson v. North Carolina, supra, 428 U.S. at p. 305.) Every person accused of criminal conduct has a federal and state constitutional right to a trial by a fair and impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. 1, § 16; Duncan v. Louisiana (1968) 391 U.S. 145, 149; People v. Collins (2001) 26 Cal.4th 297, 304.) The Sixth Amendmentguarantees a criminal defendantthe right to an impartial jury. “In essence the right to jury trial guarantees to the criminally accuseda fair -269- trial by a panel of impartial, indifferent jurors. The failure to accord the accused a fair hearing violates even the minimal standards of due process.” Urvin v. Dowd, supra, 366 U.S. at p. 722.) The constitutional right to an impartial jury imposes a duty on each individual juror to maintain his or her impartiality throughout the case. (In re Hamilton, supra, 20 Cal.4th at p. 293; People v. Nesler, supra, 16 Cal.4th at p. 578; Dyerv. Calderon, supra, 151 F.3d 970, 973.) Specifically, the Sixth Amendment's guaranteeof a trial by jury requires that the jury base its verdict on the evidence presentedattrial. (Turner v. Louisiana, supra, 379 U.S. 466, 472-73.) A jury's exposure to extrinsic evidence deprives a defendant of the rights to confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment. (Lawson v. Borg (9th Cir. 1995) 60 F.3d 608, 612. "Evidence not presented at trial, acquired through out-of-court experiments or otherwise, is deemed‘extrinsic.’ " (Raley v. Yist (9th Cir. 2006) 444 F.3d 1085, 1094.) Further, “[d]ue process means a jury capable and willing to decide the case solely on the evidence beforeit, and trial judge ever watchful to prevent prejudicial occurrences and to determinethe effect of such occurrences whenthey happen.” (Smith v. Phillips, supra, 455 U.S. 209, 217.) Thus, the judgment of death must be vacated, and the case must be remanded to the superior court for a hearing on the allegations ofjuror misconductraised by the defense. MH -270- 3 s € 8 @€ @8 € 8 eae ana weer XVIII. THE TRIAL COURT?’S REFUSAL TO GIVE APPELLANTS’ REQUESTED MODIFICATION OF CALJIC 8.85 REQUIRES REVERSAL OF THE DEATH SENTENCE BECAUSE,IN VIOLATION OF EIGHTH AND FOURTEENTH AMENDMENT PRINCIPLES, THERE IS A REASONABLE LIKELIHOOD THAT THE JURORS UNDERSTOOD THE TRIAL COURT’S INSTRUCTIONS IN A MANNER THAT ALLOWED THEM TO SENTENCE APPELLANT TO DEATH BY DOUBLE-COUNTING AND OVER-WEIGHING THE STATE’S AGGRAVATING EVIDENCE. A. Introduction Thetrial court erred in refusing to allow language to assure the jury’s correct understanding of how to assess circumstancesof the crime as aggravation. Asa result, the likelihood that the jurors understood thetrial court’s instructions in a mannerthat allowed them to sentence appellant to death by double-counting and over weighing the same facts as both circumstances of the crime and special circumstances renderedthetrial fundamentally unfair in violation of appellant’s constitutional rights to a fair and reliable penalty trial and death verdict. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 17, 24.) The jurors were instructed with CALJIC 8.85 that in determining whether appellant would spendhis life in prison or be executed, they should consider “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding andthe existence of any Special circumstances found to be true.” (5 CT 1194; 20 RT 3177; Pen. Code § 190.3, subd. (a); CALJIC No. 8.85.) Appellant requested that the jurors be further instructed, “However, you may not double countany ‘circumstances of the offense’ which are also ‘special circumstances.’ That is, you may not weigh the -271- special circumstance[s] more than once in your sentencing determination.” (5 CT 1214, 20 RT 3118-3119, 3121.)Defense counsel arguedthat the jury could only use the circumstance of the offense once andthatif not instructed, they would befree to useit multiple times. The trial court disagreed stating, “I don’t’ think there is any limit on how many times theyuseit.” The prosecution argued, “I agree with the court’s reading. It’s - - there is no bar in double counting in this area.” The trial court erroneously held that there was no limit on how manytimesthe jurors could use the circumstancesof the offense and the existence of any special circumstancesin reaching their penalty decision. The court denied appellant’s requested instruction on the ground that it misstated the law. (20 RT 3119-3120.) B. The Death Sentence Must Be Reversed Because,in Violation of Eighth and Fourteenth Amendment Principles, There is a Reasonable Likelihood That the Jurors Understood the Trial Court’s Instructions in a Manner That Allowed Them to Sentence Appellant to Death by Double-Counting and Over-Weighing the State’s Aggravating Evidence. As described below,the trial court erred by refusing to give the jurors appellant’s requested clarifying instruction. As further described below,as a result of this error, there is a reasonable and substantial likelihood that the jurors understood the court’s charge as allowing them to sentence appellant to death by double-counting and '°8 This special instruction was submitted by co-defendant Mora. (5 CT 1214, 20 RT 3118-3119.) However, appellant’s trial counsel joined in Mora’s requestfor this instruction and argued in support of said instruction. (20 RT 3121.) -272- ae “tom over-weighing the samefacts as both circumstancesof the crime and asspecial circumstances. The likelihood that the jury interpreted and applied the court’s instruction in this mannerviolated appellant’s rights under the Eighth and Fourteenth Amendments, and requires reversal of the death judgment. “Furman [v. Georgia, supra, 408 U.S. 238] mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” (Gregg v. Georgia, supra, 428 U.S. 153, 189.) Accordingly, a basic principle of modern death penalty jurisprudenceis that “[capital sentencing] juries [must] be carefully and adequately guided in their deliberations.” (/d. at p. 193.) To this extent, California law lists 11 factors that jurors shall take into account, if relevant, in determining whether a capital defendant will live or die. (Pen. Code § 190.3.) The first of these factors - “factor (a)” - provides that the jurors shall take into account and consider“[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances foundto be true[.]” (Pen. Code § 190.3, subd.(a).) As recognized by the Court, “the manifest purpose of factor (a) [is] to inform jurors that they should consider, as one factor, the totality of the circumstances involved in the criminal episodethat is on trial.” (People v. Morris (1991) 53 Cal.3d 152, 224, -273- emphasis added.)Asalso recognized by Court, “the literal language of [factor] (a) presents a theoretical problem . . since it tells the penalty jury to consider the ‘circumstances’ of the capital crime and any attendantstatutory ‘special circumstances.’ Since the latter are a subset of the former, a jury given no clarifying instructions might conceivably double-count any ‘circumstances’ which were also ‘special circumstances.’” (People v. Young (2005) 34 Cal.4th 1149, 1225, quoting People v. Melton (1988) 44 Cal.3d 713, 768.) Accordingly, the Court has held that on a defendant’s request, the trial court must admonish the jury not to double count any circumstances of the crime which were also special circumstances. (/bid.) In line with the Court’s holdings in Young and Melton,the trial court plainly erred whenit failed to admonishthe jurors, as appellant requested, “not double count any ‘circumstances of the offense’ which [were] also ‘special circumstances.’” (5 CT 1214, 20 RT 3177.) The Court has taken the position that where, as here, a trial court errs by failing to give a defendant’s requested admonition that the jury is not to double count any circumstances of the crime which werealso special circumstances, reversal is not required “in the absence of any misleading argument by the prosecutor or an event demonstrating the substantial likelihood of ‘double-counting’[.]” (People v. Monterroso 10° People v. Morris was overruled on another point by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn 1. -274- € s € 8 6 8 “anthoe ase (2004) 34 Cal.4th 743, 790; see also People v. Morris, supra, 53 Cal.3d at pp. 224-225.) This position rests upon the Court’s assumption that absent such misleading argumentor other event, “a hypothetical ‘reasonable juror’ would understand an instruction [to consider the circumstances of the crime andthe existence of any special circumstances foundto be true] to allow only ‘single counting.’” (People v. Ashmus, supra, 54 Cal.3d 932, 997,HY Appellant’s case demonstrates both the fault with the Court’s assumption, and a “substantial likelihood” that appellant’s jurors understood their instructions to allow double counting those circumstances of the crime which were also special circumstances. Both the trial court and the prosecutor erroneously believed that factor (a) - which is explained to the jury in the form of CALJIC No. 8.85 - allowed appellant’s jurors to double count the same facts as both circumstancesof the crime and special circumstances. Thetrial court believed that appellant’s requested clarification that the jurors “may not double count any circumstancesof the offense which are also special circumstances,” and therefore could “not weigh the special circumstance[s] more than onein [their] sentencing determination” was an inaccurate statement of the law. (20 RT 3118-3119.) Accordingto the court, “I don’t think there is any limit on how many timesthey useit.” (20 RT 3119.) The prosecutor erroneously concurred,stating, “I agree with the court’s "10 This Court disapproved People v. Ashmus on another ground in Peoplev. Yeoman (2003) 31 Cal.4th 93, 117. -275- reading. It’s - - there is no bar in double counting in this area.” (20 RT 3120.) If, as their statements reflect, both the trial court and the prosecutor believed that the law, as reflected in CALJIC No.8.85, allowed the jurors to consider and double count the same facts as both circumstances of the crime andspecial circumstances,itis unreasonable to assume the jurors would have understoodthe instruction as allowing only “single counting.” (People v. Ashmus, supra, 54 Cal.3d at p. 997.) Instead,like the trial court and prosecutor, a “hypothetical reasonable juror” (/d. at pp. 977-978) would have understood the wording of the instruction as allowing them to count and weighthe special circumstances more than oncein their penalty determination. (See United States v. Darby (9th Cir. 1988) 857 F.2d 623, 626-627 [misunderstanding of the law bytrial court and the attorneys makesit likely that instructions misled jurors].) In other words, the circumstancesof this case plainly demonstrate a “substantial likelihood of 399‘double-counting.’” (People v. Monterroso, supra, 34 Cal.4th at p. 790; People v. Morris, supra, 53 Cal.3d at p. 225; see also People v. McPeters (1992) 2 Cal.4th 1148, 1191 [test for penalty phase instructional error “is whether there is a ‘reasonable likelihoodthat the jury ... understood the charge’ in a mannerthat violated defendant’s rights.” ]; Estelle v. McGuire, supra, 502 U.S. 62, 72 & fn. 4, quoting Boyde v. California (1990) 494 US. 370, 380 [examining “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution”].) -276- 12m on C. The Trial Court’s Error Requires Reversal of the Death Sentence. The likelihood that the jurors understoodthetrial court's instructions in a manner that allowed them to sentence appellant to death by double-counting and over-weighing the same facts as both circumstances ofthe crime and special circumstances renders this trial fundamentally unfair, in violation of appellant’s Eighth and Fourteenth Amendment rights to a fair and reliable penalty trial and death sentence, based on a proper consideration of relevant sentencing factors. (See Johnson v. Mississippi (1988) 486 U.S. 578, 584-585 [recognizing the “special ‘need for reliability in the determination that death is the appropriate punishment’ in any capital case”]; Caldwell v. Mississippi, supra, 472 U.S. 320, 328-329 [constitutionally impermissible to rest a death sentence on a determination madebyjurors that have been misled as to the nature of their sentencing discretion]; Penry v. Lynaugh (1989) 492 U.S. 302, 328, quoting Lockett v. Ohio, supra, 438 U.S. 586, 605 [circumstancescreating a risk that a death sentence will be erroneously imposed “unacceptable and incompatible with the commandsof the Eighth and Fourteenth Amendments.”]; Mills v. Maryland, supra, 486 U.S. 367, 376 [Eighth and Fourteenth Amendments demand “evengreater certainty” that the jury’s death penalty determination rested on proper grounds]; Godfrey v. Georgia, supra, 446 U.S. 420, 428, quoting Gregg v. Georgia, supra, 428 U.S. at p. 198 [a State wishing to authorize capital punishment “must channel the sentencer’s discretion by ‘clear and objective 999standards’”].) And, because appellant was entitled under state law to have the jurors -277- consider as onefactor the totality of the circumstancesof the crime (Pen. Code, 190.3, subd. (a); People v. Morris, supra, 53 Cal.3d at p. 224), the likelihood that the jurors double counted and over-weighed the same facts as both circumstances of the crime and special circumstances violated both his state statutory rights, and his right to due process under the Fourteenth Amendmentof the United States Constitution. (Hicks v. Oklahoma, supra, 447 U.S. 343, 346; see also Fetterly v. Puckett (9th Cir. 1993) 997 F.2d 1295, 1300-1301 [state statutory laws designed to protect the substantive rights of capital case defendants create liberty interests protected under the federal Constitution]; Clemonsv. Mississippi (1990) 494 U.S. 738, 746 [“Capital sentencing proceedings must of course satisfy the dictates of the Due Process Clause[.]”.) The death penalty was by no meansa foregone conclusion in this case, and, on the evidence presented, reasonable jurors could have spared appellant’s life. With the exception of a single arrest regarding an incident of burglary to a motor vehicle, the prosecution’s case for death was based entirely on evidence of the circumstancesof the charged crime, presented under Penal Code section 190.3, subdivision (a). Thetrial court’s failure to clarify that the jurors were not to double countany circumstancesof the offense which werealso special circumstances not only failed to adequately guide the jurors, it falsely inflated the aggravating circumstances of the crime. This was particularly serious here, where a single prior crime for auto burglary was presented and appellant presented mitigation evidence throughthe testimony of several witnesses -278- —_ A regarding his background, family and character. Onthe facts of this case, the state cannot prove “beyond a reasonable doubt”that the trial court’s failure to give appellant’s requested clarifying instruction could not have contributed to appellant’s death sentence. (Chapman v. California, supra, 386 U.S. 18, 24.) Even if assessed as state law error, the error is reversible wherethere is a reasonable possibility the jury would have rendered a different verdict had the error not occurred. (People v. Hamilton, supra, 45 Cal.4th 863, 917.) That is the case here, thus appellant’s death sentence must be reversed. // // -279- XIX. APPELLANT’S CONVICTION OF CAPITAL MURDER MUST BE REVERSED BECAUSE CALIFORNIA’S MULTIPLE MURDER SPECIAL CIRCUMSTANCE IS UNCONSTITUTIONAL. The multiple murder special circumstance must be overturned becauseit violates the Eighth and Fourteenth Amendments”by encompassing an overly-broad class of persons with vastly different levels of culpability. “To pass constitutional muster, a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of multiple murder.’” (People v. Ledesma (2006) 39 Cal.4th 641, 725, quoting Zantv. Stephens, supra, 462 U.S. 862, 877; see also Lewis v. Jeffers (1990) 497 U.S. 764, 774; People v. Moon (2005) 37 Cal.4th 1, 44, quoting Furman v. Georgia, supra, 408 U.S. 238, 313 (conc. opn. of Stewart, J.) [“To avoid the Eighth Amendment’s proscription against cruel and unusual punishment, a death penalty law must provide a ‘meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the manycases in whichit is not’”’|.) Thus, in order to meet the demandsof the Eighth Amendment, a special circumstance that makes a defendant eligible for the death sentence under California law must “provide a rational basis for distinguishing between those murderers who deserveto be considered for the death penalty and those who do not.” (People v. Green, supra, 27 Cal.3d 1, 61;“’ see also Zant v. Stephens, supra, 462 U.S. at p. 879. [factors that make a defendanteligible for the death penalty must “differentiate [his| case in an objective, Appellant that this Court has previously upheld the constitutionality of the multiple murder special circumstance underdifferent circumstances. (People v. Sapp (2004) 31 Cal.4th 240, 287; People v. Coddington (2000) 23 Cal.4th 529, 656.) M2 Overruled on other grounds in People y. Hall (1986) 41 Cal.3d 826, 834,fn. 3; and People v. Martinez (1999) 20 Cal.4th 225, 239.) -280- evenhanded,and substantively rational way from the many... murder cases in which the death penalty may not be imposed”].) Stated differently, a special circumstancethat makesa defendanteligible for the death penalty must be one that “permit[s] the sentencer to make a principled distinction between those who deserve the death penalty and those who do not.” (Lewis v. Jeffers, supra, 497 U.S.at p. 776; see also Arave v. Creech, supra, 507 U.S. 463, 474.) California’s multiple murder special circumstance, which applies in cases where the defendant has been convicted of one or more offenses of murderin the first degree (Pen. Code § 190.2, subd., (a)(3)), does not achieve the constitutional goal of distinguishing in any meaningful or principled way the few cases in which the death penalty may be imposed from the many cases in which it may not. In order to achieve this goal, a valid special circumstance must define a sub-class of persons of comparable culpability. “When juries are presented with a broad class composedof persons of many different levels of culpability, and are allowed to decided who among them deserves death, the possibility of aberrational decisionsas to life or death is too great.” (United States v. Cheely (9th Cir. 1994) 36 F.3d 1439, 1445.) The multiple murder special circumstance in California fails to foreclose this prospect. The narrowing factor for the multiple murder special circumstanceis not the defendant’s mental state, but the act which was committed. Because death eligibility is based entirely upon the fact that more than one murderin the first degree has been -281- committed, this special circumstance encompassesa broadclass of individual defendants whopossess wildly disparate levels of culpability. Thus, for instance, California’s multiple murder special circumstance applies equally to a defendant who, motivated by racial hatred, deliberately kills several minority children in separate incidents, as well as to a defendant who,in the course of a robbery, accidentally kills one woman andhernine week-old fetus, which the defendant did not know the woman wascarrying.(See e.g., People v. Davis (1994) 7 Cal.4th 797, 810; People v. Anderson, supra, 43 Cal.3d 1104, 1149-1150.) Under California’s statutory scheme, one jury could sentence the accidental killer to death, while another jury could spare the life of the defendant who deliberately killed hi victims based ontheir race. “The prospect of such ‘wanton and freakish’ death sentencing is intolerable under Furman andthe cases following it.” (United Statesv. Cheely, supra, 36 F.3d at p. 1444.) In sum, California’s multiple murder special circumstance fails to differentiate in an objective and rational manner those murderers who deserveto be considered for the death penalty and those who do not, and therebycreates the type of “wanton and freakish” death sentencing foundintolerable in Furman v. Georgia, supra, 408 U.S. 238 andits progeny. This Court should reexamineits previous holdings t the contrary, and declare this special circumstance unconstitutional, and reverse appellant’s conviction of capital murder. // -282- XX. CALIFORNIA'S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT'S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION. Manyfeatures of California's capital sentencing scheme, alone or in combination with each other, violate the United States Constitution. Because challenges to most of these features have been rejected by this Court, appellant presents these arguments here in an abbreviated fashion sufficient to alert the Court to the nature of each claim andits federal constitutional grounds, and to provide a basis for the Court's reconsideration of each claim in the context of California's entire death penalty system. To date the Court has considered each of the defects identified below in isolation, without considering their cumulative impact or addressing the functioning of California's capital sentencing scheme as a whole. This analytic approachis constitutionally defective. As the U.S. Supreme Court hasstated, "[t]he constitutionality of a State's death penalty system turns on review of that system in context." (Kansas v. Marsh (2006) 548 U.S. 163, 179, fn. 6.4 See also Pulley v. Harris (1984) 465 U.S. 37, 51 (while comparative proportionality review is not an essential componentof every constitutional capital sentencing scheme, a capital sentencing scheme maybeso lacking in other checks ms In Marsh, the high court considered Kansas's requirementthat death be imposed if a jury deemed the aggravating and mitigating circumstances to be in equipoise and on that basis concluded beyond a reasonable doubt that the mitigating circumstances did not outweigh the aggravating circumstances. This was acceptable,in light of the overall structure of "the Kansas capital sentencing system," which, as the court noted, "is dominated by the presumptionthat life imprisonmentis the appropriate sentence for a capital conviction." (548 U.S. at p. 178.) -283- on arbitrariness that it would not pass constitutional muster without such review). Whenviewedas a whole, California's sentencing schemeis so broadin its definitions of whois eligible for death and so lacking in procedural safeguardsthat it fails to provide a meaningfulor reliable basis for selecting the relatively few offenders subjected to capital punishment. Further, a particular procedural safeguard's absence, while perhaps not constitutionally fatal in the context of sentencing schemesthat are narroweror have other safeguarding mechanisms, may render California's scheme unconstitutional in that it is a mechanism that might otherwise have enabled California's sentencing schemeto achieve a constitutionally acceptable level of reliability. California's death penalty statute sweepsvirtually every murdererinto its grasp. It then allows any conceivable circumstance of a crime - even circumstances squarely opposed to eachother(e.g., the fact that the victim was youngversusthe fact that the victim wasold, the fact that the victim was killed at homeversusthe fact that the victim was killed outside the home) - to justify the imposition of the death penalty. Judicial interpretations have placed the entire burden of narrowingthe class of first degree murderers to those most deserving of death on Penal Code § 190.2, the "special circumstances"section of the statute - but that section was specifically passed for the purpose of making every murderereligible for the death penalty. There are no safeguards in California during the penalty phase that would enhance the reliability of the trial's outcome. Instead, factual prerequisites to the imposition of the -284- death penalty are found by jurors whoare not instructed on any burden ofproof, and who may not agree with each otherat all. Paradoxically, the fact that "death is different" has been stood onits head to mean that procedural protections taken for granted in trials for lesser criminal offenses are suspended whenthe question is a finding that is foundational to the imposition of death. The result is truly a "wanton and freakish" system that randomly chooses amongthe thousands of murderers in California a few victims of the ultimate sanction. In Marsh, the high court considered Kansas's requirement that death be imposedif a jury deemed the aggravating and mitigating circumstancesto be in equipoise and onthat basis concluded beyond a reasonable doubtthat the mitigating circumstancesdid not outweigh the aggravating circumstances. This was acceptable, in light of the overall structure of "the Kansas capital sentencing system," which,as the court noted, "is dominated by the presumption that life imprisonmentis the appropriate sentence for a capital conviction." (548 U.S. at p. 178.) A. Appellant’s Death Penalty Is Invalid Because Penal Code Section 190.2 Is Impermissibly Broad. To avoid the Eighth Amendment's proscription against cruel and unusual punishment, a death penalty law must provide a "meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in whichit is not. (Citations omitted.)" (People v. Edelbacher, supra, 47 Cal.3d 983, 1023.) -285- In order to meet this constitutional mandate, the states must genuinely narrow, by rational and objective criteria, the class of murderers eligible for the death penalty. According to this Court, the requisite narrowing in California is accomplished by the "special circumstances" set out in section 190.2. (People v Bacigalupo, supra, 6 Cal.4th at p. 868.) The 1978 death penalty law cameinto being, however, not to narrow those eligible for the death penalty but to make all murdererseligible. (See 1978 Voter's Pamphlet, p. 34, "Arguments in Favorof Proposition 7.") This initiative statute was enacted into law as Proposition 7 by its proponents on November 7, 1978. At the time of the offense charged against appellant the statute contained nineteen (19) special circumstances” purporting to narrow the category of first degree murders to those murders most deserving of the death penalty. These special circumstances are so numerousand so broad in definition as to encompassnearly every first-degree murder, per the drafters' declared intent. In California, almost all felony-murders are now special circumstance cases, and felony-murdercasesinclude accidental and unforeseeable deaths, as well as acts committed in a panic or under the dominion of a mental breakdown,or acts committed by others. (People v. Dillon, supra, 34 Cal.3d 441.) Section 190.2's reach has been ‘4 The numberofspecial circumstances has continued to grow and is now thirty-three (33). -286- extendedto virtually all intentional murders by this Court's construction of the lying-in-wait special circumstance, which the Court has construed so broadly as to encompassvirtually all such murders. (See People v. Hillhouse (2002) 27 Cal.4th 469, 500-501, 512-515.) These categories are joined by so many other categories of special-circumstance murder that the statute now comesclose to achieving its goal of making every murderereligible for death. The U.S. Supreme Court has madeit clear that the narrowing function, as opposed to the selection function, is to be accomplished by the legislature. The electorate in California and the drafters of the Briggs Initiative threw down a challengeto the courts by seeking to make every murderereligible for the death penalty. This Court should accept that challenge, review the death penalty scheme currently in effect, and strike it down as so all-inclusive as to guarantee the arbitrary imposition of the death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the U.S. Constitution and prevailing international law. +’ (See Section E. of this Argument, post). ns In a habeaspetition to be filed after the completion of appellate briefing, appellant will present empirical evidence confirming that section 190.2 as applied, as one would expect givenits text, fails to genuinely narrow the class of persons eligible for the death penalty. Further, in his habeas petition, appellant will present empirical evidence demonstrating that, as applied, California's capital sentencing scheme culls so overbroada pool of statutorily death-eligible defendants that an even smaller percentage of the statutorily death-eligible are sentenced to death than wasthe case under the capital sentencing schemes condemned in Furman v. Georgia, supra, 408 U.S. 238, and thus that California's sentencing scheme permits an even greater risk of arbitrariness than those schemesand,like those schemes,1s -287- B. The Overly Broad Application of Penal Code Section 190.3, Subdivision (a) Allows Arbitrary And Capricious Imposition Of Death In Violation Of The Fifth, Sixth, Eighth And Fourteenth Amendments To The United States Constitution. Section 190.3(a) violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution in that it has been applied in such a wanton andfreakish mannerthat almost all features of every murder, even features squarely at odds with features deemed supportive of death sentences in other cases, have been characterized by prosecutors as "aggravating" within the statute's meaning. Factor(a), listed in section 190.3, directs the jury to consider in aggravation the "circumstances of the crime." This Court has never applied a limiting construction to factor (a) other than to agree that an aggravating factor based on the "circumstances ofthe crime" must be somefact beyond the elements of the crime itself“ The Court has allowed extraordinary expansionsof factor (a), approving reliance upon it to support aggravating factors based upon the defendant's having sought to conceal evidence three weeksafter the crime,” or having had a "hatred of religion,"“® or threatened witnesses unconstitutional. ne (People v. Dyer, supra, 45 Cal.3d 26, 78; People v. Adcox (1988) 47 Cal.3d 207, 270; see also CALJIC No. 8.88.) m7 People vy. Walker (1988) 47 Cal.3d 605, 639, fn. 10, cert. den., 494 U.S. 1038 (1990). ms People v. Nicolaus (1991) 54 Cal.3d 551, 581-582, cert. den., 112 S. Ct. 3040 (1992). -288- | e after his arrest,’ or disposed of the victim's body in a mannerthat precludedits recovery." It also is the basis for admitting evidence underthe rubric of "victim impact" that is no more than an inflammatory presentation by the victim's relatives of the prosecution's theory of how the crime was committed. (See, e.g., People v. Robinson, supra, 37 Cal.4th 592, 644-652, 656-657.) Relevant "victims" include "the victim's friends, coworkers, and the community" (People v. Ervine (2009) 47 Cal.4th 745, 858), the harm they describe may properly "encompass|] the spectrum of human responses" (ibid.), and such evidence may dominate the penalty proceedings (People v. Dykes (2009) 46 Cal.4th 731, 782-783). The purposeof section 190.3 is to inform the jury of what factors it should consider in assessing the appropriate penalty. Although factor (a) has survived a facial Eighth Amendmentchallenge (Tuilaepa v. California, supra, 512 U.S. 967), it has been used in waysso arbitrary and contradictory as to violate both the federal guarantee of due process of law and the Eighth Amendment. Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstance of the crime, even those that, from case to case, reflect starkly opposite circumstances. (Tuilaepa, supra, 512 U.S. at pp. 9 People v. Hardy, supra, 2 Cal.4th 86, 204, cert. den., 113 S. Ct. 498. 0 People v. Bittaker (1989) 48 Cal.3d 1046, 1110, fn.35, cert. den. 496 U.S. 931 (1990). -289- 986-990, dis. opn. of Blackmun, J.) Factor (a) is used to embrace facts which are inevitably present in every homicide. (Ibid.) As a consequence, from case to case, prosecutors have been permitted to turn entirely opposite facts - or facts that are inevitable variations of every homicide - into aggravating factors whichthe jury is urged to weigh on death's side ofthe scale. In practice, section 190.3's broad "circumstances of the crime" provision licenses indiscriminate imposition of the death penalty upon no basis other than "that a particular set of facts surrounding a murder, ... were enough in themselves, and without some narrowingprinciples to apply to those facts, to warrant the imposition of the death penalty." (Maynard v. Cartwright (1988) 486 U.S. 356, 363 [discussing the holding in Godfrey v. Georgia, supra, 446 U.S. 420].) Viewing section 190.3 in context of how it is actually used, one sees that every fact without exception that is part of a murder can be an “aggravating circumstance," thus emptying that term of any meaning, and allowing arbitrary and capricious death sentences, in violation of the federal constitution. C. California’s Death Penalty Statute Contains No Safeguards To Avoid Arbitrary And Capricious Sentencing And Deprives Defendants Of The Right To A Jury Determination Of Each Factual Prerequisite To A Sentence of Death; It Therefore Violates The Sixth, Eighth, And Fourteenth Amendments To The United States Constitution. As shownabove, California's death penalty statute does nothing to narrow the pool of murderers to those most deserving of death in either its "special circumstances" section (§ 190.2) or in its sentencing guidelines (§ 190.3). Section 190.3(a) allows prosecutors to -290- ee aed argue that every feature of a crime that can be articulated is an acceptable aggravating circumstance, even features that are mutually exclusive. Furthermore, there are none of the safeguards commonto other death penalty sentencing schemesto guard against the arbitrary imposition of death. Juries do not have to make written findings or achieve unanimity as to aggravating circumstances. They do not have to find beyond a reasonable doubt that aggravating circumstancesare proved, that they outweigh the mitigating circumstances, or that death is the appropriate penalty. In fact, except as to the existence of other criminal activity and prior convictions, juries are not instructed on any burden of proofat all. Not only is inter-case proportionality review not required; it is not permitted. Underthe rationale that a decision to impose death is "moral" and "normative," the fundamental components of reasoned decision-making that apply to all other parts of the law have been banished from the entire process of making the most consequential decision a juror can make - whetheror not to condemna fellow humanto death. 1. Appellant's Death Verdict Was Not Premised on Findings Beyond a Reasonable Doubt by a Unanimous Jury That One or More Aggravating Factors Existed and That These Factors Outweighed Mitigating Factors; His Constitutional Right to Jury Determination Beyond a Reasonable Doubt of All Facts Essential to the Imposition of a Death Penalty Was Thereby Violated. Exceptas to prior criminality, appellant's jury was nottold that it had to find any aggravating factor true beyond a reasonable doubt. The jurors were not told that they -291- neededto agreeat all on the presence of any particular aggravating factor, or that they had to find beyond a reasonable doubtthat aggravating factors outweighed mitigating factors before determining whether or not to impose a death sentence. All this was consistent with this Court's previous interpretations of California's statute. In People v. Fairbank (1997) 16 Cal.4th 1223, 1255, this Court said that "neither the federal nor the state Constitution requires the jury to agree unanimously asto aggravating factors, or to find beyond a reasonable doubtthat aggravating factors exist, [or] that they outweigh mitigating factors ..." But this pronouncement has been squarely rejected by the U.S. Supreme Court's decisions in Apprendi v. New Jersey, supra, 530 U.S. 466 [hereinafter Apprendi]; Ring v. Arizona, supra, 536 U.S. 584 [Ring]; Blakely v. Washington (2004) 542 U.S. 296 [Blakely]; and Cunningham y. California (2007) 549 U.S. 270 [Cunningham]. In Apprendi, the high court held that a state may not impose a sentence greater than that authorized by the jury's simple verdict of guilt unless the facts supporting an increased sentence (other than a prior conviction) are also submitted to the jury and proved beyonda reasonable doubt. (/d. at p. 478.) In Ring, the high court struck down Arizona's death penalty scheme, which authorized a judgesitting without a jury to sentence a defendant to death if there wasat least one aggravating circumstance and no mitigating circumstancessufficiently substantial to call for leniency. (/d., at 593.) The court acknowledged that in a prior case -292- Saw reviewing Arizona's capital sentencing law (Walton v. Arizona (1990) 497 U.S. 639)it had held that aggravating factors were sentencing considerations guiding the choice between life and death, and not elements of the offense. (/d. at p. 598.) The court found that in light of Apprendi, Walton no longer controlled. Any factual finding which increases the possible penalty is the functional equivalent of an elementofthe offense, regardless of whenit must be found or what nomenclature is attached; the Sixth and Fourteenth Amendments require that it be found by a jury beyond a reasonable doubt. In Blakely, the high court considered the effect ofApprendi and Ring in a case wherethe sentencing judge wasallowed to impose an "exceptional" sentence outside the normal range uponthe finding of "substantial and compelling reasons." (Blakely v. Washington, supra, 542 U.S. at 299.) The state of Washingtonset forth illustrative factors that included both aggravating and mitigating circumstances; one of the former was whether the defendant's conduct manifested "deliberate cruelty" to the victim. (Ibid.) The supreme court ruled that this procedure wasinvalid because it did not comply with the right to a jury trial. (/d. at 313.) In reaching this holding, the supreme court stated that the governing rule since Apprendiis that other than a prior conviction, any fact that increases the penalty for a crime beyondthe statutory maximum must be submitted to the jury and found beyond a reasonable doubt; "the relevant 'statutory maximum’is not the maximum sentence a judge may imposeafter finding additional facts, but the maximum he may impose without any -293- additional findings." Ud. at 304; italics in original.) This line of authority has been consistently reaffirmed by the high court. In United States v. Booker (2005) 543 U.S. 220, the nine justices split into different majorities. Justice Stevens, writing for a 5-4 majority, found that the United States Sentencing Guidelines were unconstitutional because they set mandatory sentences based on judicial findings made by a preponderanceof the evidence. Bookerreiterates the Sixth Amendmentrequirement that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized bythe facts established by a plea of guilty or a jury verdict must be admitted by the defendantor proved to a jury beyond a reasonable doubt." (United States v. Booker, supra, 543 U.S. at 244.) In Cunningham,the high court rejected this Court's interpretation ofApprendi, and found that California's Determinate Sentencing Law ("DSL")requires a jury finding beyond a reasonable doubt of any fact used to enhance a sentence above the middle range spelled out by the legislature. (Cunningham v. California, supra, 549 U.S. at 274.) In so doing, it explicitly rejected the reasoning used by this Court to find that Apprendi and Ring have noapplication to the penalty phase ofa capital trial. (549 U.S. at 282.) a. In the WakeofApprendi, Ring, Blakely, and Cunningham, Any Jury Finding Necessary to the Imposition of Death Must Be Found True Beyond a Reasonable Doubt. California law as interpreted by this Court does not require that a reasonable doubt -294- standard be used during any part of the penalty phase of a defendant's trial, except as to proofof prior criminality relied upon as an aggravating circumstance- and evenin that context the required finding need not be unanimous. (People v. Fairbank, supra; see also People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are "moral and... not factual," and therefore not "susceptible to a burden-of-proof quantification"|.) California statutory law and jury instructions, however, do require fact-finding before the decision to imposedeath or a lesser sentence is finally made. As a prerequisite to the imposition of the death penalty, section 190.3 requires the "trier of fact" to find that at least one aggravating factor exists and that such aggravating factor (or factors) substantially outweigh any andall mitigating factors“" As set forth in California's "principal sentencing instruction" (People v. Farnam (2002) 28 Cal.4th 107, 177), which was read to appellant's jury "[a]n aggravating factor is any fact, condition or event attending the commission of a crime whichincreasesits severity or enormity, or adds to its injurious consequences which is above and beyond the elementsof the crimeitself." (CALJIC No. 8.88; 5 CT 1211-1212; 21 RT 3294-3296.) Thus, before the process of weighing aggravating factors against mitigating factors can begin, the presence of one or more aggravating factors must be found bythejury. 171 This Court has acknowledged that fact-finding is part of a sentencing jury's responsibility, even if not the greatest part; the jury's role "is not merely to find facts, but also - and most important - to render an individualized, normative determination about the penalty appropriate for the particular defendant... ." (People v. Brown, supra, 46 Cal.3d at p. 448.) -295- Andbefore the decision whether or not to impose death can be made,the jury must find that aggravating factors substantially outweigh mitigating factors.” These factual determinations are essential prerequisites to death-eligibility, but do not mean that death is the inevitable verdict; the jury can still reject death as the appropriate punishment notwithstanding these factual findings.” This Court has repeatedly sought to reject the applicability of Apprendi and Ring by comparing the capital sentencing processin California to "a sentencing court's traditionally discretionary decision to impose one prison sentence rather than another." (People v. Demetroulias (2006) 39 Cal.4th 1, 41; People v. Dickey (2005) 35 Cal.4th 884, 930; People v. Snow, supra, 30 Cal.4th 43, 126, fn. 32; People v. Prieto, supra, 30 Cal.4th 226, 275.) It has applied precisely the same analysis to fend off Apprendi and Blakely in non-capital cases. In People v. Black (2005) 35 Cal.4th 1238, 1254, this Court held that N22 In Johnson v. State (Nev. 2002) 59 P.3d 450, the Nevada Supreme Court found that undera statute similar to California's, the requirement that aggravating factors outweigh mitigating factors was a factual determination, and therefore "even though Ring expressly abstained from ruling on any ‘Sixth Amendment claim with respectto mitigating circumstances,’ (fn. omitted) we conclude that Ring requires a jury to makethis finding as well: 'If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact - no matter how the State labels it - must be found by a jury beyond a reasonable doubt." (/d., 59 P.3d at p. 460) 1 This Court has held that despite the "shall impose" language ofsection 190.3, even if the jurors determine that aggravating factors outweigh mitigating factors, they maystill impose a sentenceoflife in prison. (People v. Allen (1986) 42 Cal.3d 1222, 1276-1277; People v. Brown, supra, 40 Cal.3d 512, 541.) -296- notwithstanding Apprendi, Blakely, and Booker, a defendant hasno constitutional right to a jury finding as to the facts relied on bythe trial court to impose an aggravated, or upper-term sentence; the DSL "simply authorizes a sentencing court to engage in the type of factfinding that traditionally has been incidentto the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range." (35 Cal.4th at 1254.) The U.S. Supreme Court explicitly rejected this reasoning in Cunningham.” In Cunningham the principle that any fact which exposed a defendantto a greater potential sentence must be found by a jury to be true beyond a reasonable doubt was applied to California's Determinate Sentencing Law. The high court examined whetheror not the circumstances in aggravation were factual in nature, and concludedthey were,after a review of the relevant rules of court. (549 U.S. at pp. 276-279.) That was the end of the matter: Black's interpretation of the DSL "violates Apprendi's bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyondthe prescribed statutory maximum must be submitted to a jury, and found beyond a reasonable doubt.' [citation omitted]." (Cunningham, supra, 549 U.S. at pp. 290-291.) Cunningham then examinedthis Court's extensive development of why an 14 Cunningham cited with approval Justice Kennard's language in concurrence and dissent in Black ("Nothing in the high court's majority opinions in Apprendi, Blakely, and Booker suggests that the constitutionality of a state's sentencing schemeturns on whether, in the words of the majority here,it involves the type of factfinding ‘that traditionally has been performed by a judge." (Black, 35 Cal.4th at 1253; Cunningham, supra, 549 U.S. at p. 289.) -297- interpretation of the DSL that allowed continued judge-based finding of fact and sentencing was reasonable, and concludedthat "it is comforting, but beside the point, that California's system requires judge-determined DSL sentences to be reasonable." (/d., p. 293.) The Black court's examination of the DSL,in short, satisfied it that California's sentencing system does not implicate significantly the concerns underlying the Sixth Amendment's jury-trial guarantee. Our decisions, however, leave no room for such an examination. Asking whether a defendant's basic jury-trial right is preserved, though somefacts essential to punishment are reserved for determination by the judge, we havesaid,is the very inquiry Apprendi's "bright-line rule" was designed to exclude. See Blakely, 542 U.S., at 307-308, 124 S.Ct. 2531. But see Black, 35 Cal.4th, at 1260, 29 Cal.Rptr.3d 740, 113 P.3d,at 547 (stating, remarkably, that "[t]he high court precedents do not draw a bright line"). (Cunningham, supra, 549 U.S. at pp. 291.) In the wake of Cunningham, itis crystal-clear that in determining whether or not Ring and Apprendi apply to the penalty phase of a capital case, the sole relevant question is whetheror not there is a requirementthat any factualfindings be made before a death penalty can be imposed. In its effort to resist the directions ofApprendi, this Court held that since the maximum penalty for one convicted of first degree murder with a special circumstanceis death (see section 190.2(a)), Apprendi does not apply. (People v. Anderson, supra, 25 Cal.4th 543, 589.) After Ring, this Court repeated the same analysis: "Because any finding of aggravating factors during the penalty phase doesnot ‘increase the penalty for a crime beyondthe prescribed statutory maximum!(citation omitted), Ring imposes no new -298- eae constitutional requirements on California's penalty phase proceedings." (People v. Prieto, supra, 30 Cal.4th at p. 263.) 25indicates, the maximumThis holding is simply wrong. Assection 190, subd.(a) penalty for any first degree murder conviction is death. The top of three rungsis obviously the maximum sentence that can be imposed pursuantto the DSL, but Cunningham recognized that the middle rung was the most severe penalty that could be imposed bythe sentencing judge without further factual findings: "In sum, California's DSL, and the rules governingits application, direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts - whether related to the offense or the offender - beyond the elements of the charged offense." (Cunningham, supra, 549 U.S. at p. 279.) Arizona advancedprecisely the same argument in Ring. It pointed out that a finding of first degree murder in Arizona, like a finding of one or more special circumstances in California, leads to only two sentencing options: death orlife imprisonment, and Ring wastherefore sentenced within the range of punishment authorized by the jury's verdict. The Supreme Court squarely rejected it: This argument overlooks Apprendi's instruction that "the relevant inquiry is one not of form, but of effect." 530 U.S., at 494, 120 S.Ct. 2348. In effect, "the 125 Section 190, subd. (a) provides as follows: "Every person guilty of murder in the first degree shall be punished by death, imprisonmentin the state prison for life without the possibility of parole, or imprisonmentin thestate prison for a term of 25 yearsto life." -299- required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishmentthan that authorized by the jury's guilty verdict." /bid.; see 200 Ariz., at 279, 25 P.3d, at 1151. (Ring, 536 U.S. at 604.) Just as when a defendantis convicted of first degree murderin Arizona,a California conviction of first degree murder, even with a finding of one or more special circumstances, "authorizes a maximum penalty of death only in a formal sense." (Ring, supra, 536 U.S. at 604.) Section 190, subd. (a) provides that the punishmentforfirst degree murderis 25 yearsto life, life without possibility of parole ("LWOP"), or death; the penalty to be applied "shall be determined as providedin Sections 190.1, 190.2, 190.3, 190.4 and 190.5." Neither LWOPnordeath can be imposedunless the jury finds a special circumstance(section 190.2). Death is not an available option unless the jury makes further findings that one or more aggravating circumstancesexist, and that the aggravating circumstancessubstantially outweigh the mitigating circumstances. (Section 190.3; CALJIC 8.88.) "Ifa State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact - no matter howthe State labels it - must be found by a jury beyond a reasonable doubt." (Ring, 536 U.S. at 604.) In Blakely, the high court madeit clear that, as Justice Breyer complained in dissent, "a jury mustfind, not only the facts that make up the crime of which the offender is charged, but also all (punishment-increasing) facts about the way in which the offender carried out that -300- 7 crime." (/d., 542 U.S. at p. 328; emphasis in original.) The issue of the Sixth Amendment's applicability hinges on whetheras a practical matter, the sentencer must make additional findings during the penalty phase before determining whetheror not the death penalty can be imposed. In California, as in Arizona, the answeris "Yes." That, according to Apprendi and Cunningham,is the endof the inquiry as far as the Sixth Amendment's applicability is concerned. California's failure to require the requisite factfinding in the penalty phase to be found unanimously and beyond a reasonable doubt violates the United States Constitution. b. Whether Aggravating Factors Outweigh Mitigating Factors Is a Factual Question That Must Be Resolved Beyond a Reasonable Doubt. A California jury must first decide whether any aggravating circumstances, as defined by section 190.3 and the standard penalty phaseinstructions, exist in the case before it. If so, the jury then weighs any such factors against the proffered mitigation. A determination that the aggravating factors substantially outweigh the mitigating factors - a prerequisite to imposition of the death sentence- is the functional equivalent of an element of capital murder, and is therefore subject to the protections of the Sixth Amendment. (See State v. Ring (Ariz. 2003) 65 P.3d 915, 943; accord, State v. Whitfield (Mo. 2003) 107 S.W.3d 253; Woldt v. People (Colo. 2003) 64 P.3d 256; Johnson v. State, -301- supra, 59 P.3d 450.2) Nogreater interest is ever at stake than in the penalty phase ofa capital case. (Mongev. California, supra, 524 U.S. 721, 732 ["the death penalty is uniquein its severity andits finality"].)“” As the high court stated in Ring, supra, 536 U.S. at p. 609: Capital defendants, no less than non-capital defendants, we conclude,are entitled to a jury determination of any fact on whichthe legislature conditions an increase in their maximum punishment. ... The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the fact-finding necessary to increase a defendant's sentence by twoyears, but not the fact-finding necessary to put him to death. The last step of California's capital sentencing procedure, the decision whetherto impose death orlife, is a moral and a normative one. This Court errs greatly, however,in using this fact to allow the findings that make oneeligible for death to be uncertain, 126 127 See also Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role of the Jury in Capital Sentencing (2003) 54 Ala L. Rev. 1091, 1126-1127 (noting that all features that the Supreme Court regarded in Ring as significant apply not only to the finding that an aggravating circumstanceis present but also to whether aggravating circumstances substantially outweigh mitigating circumstances, since both findings are essential predicates for a sentence of death). In its Monge opinion, the U.S. Supreme Court foreshadowed Ring, and expressly stated that the Santosky v. Kramer (1982) 455 U.S. 745, 755 rationale for the beyond-a-reasonable-doubt burden of proof requirement applied to capital sentencing proceedings: "[I]n a capital sentencing proceeding, as in a criminaltrial, 'the interests of the defendant [are] of such magnitude that... they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.' [Citations.]" (Monge v. California, supra, 524 U.S. at p. 732 (emphasis added), quoting Bullington v. Missouri (1981) 451 U.S. 430, 441, and Addington v. Texas (1979) 441 U.S. 418, 423-424.) -302- ewe wea undefined, and subject to dispute not only as to their significance, but as to their accuracy. This Court's refusal to accept the applicability of Ring to the eligibility components of California's penalty phase violates the Sixth, Eighth, and Fourteenth Amendmentsto the U.S. Constitution. 2. The Due Process and the Cruel and Unusual Punishment Clauses of the State and Federal Constitution Require That the Jury in a Capital Case Be Instructed That They May Impose a Sentence of Death Only If They Are Persuaded Beyond a Reasonable Doubt That the Aggravating Factors Exist and Outweigh the Mitigating Factors and That Death Is the Appropriate Penalty. a. Factual Determinations The outcomeof a judicial proceeding necessarily depends on an appraisal of the facts. "[T]he procedures by whichthe facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more importantthe rights at stake the more important must be the procedural safeguards surrounding those rights." (Speiser v. Randall (1958) 357 U.S. 513, 520-521.) The primary procedural safeguard implanted in the criminal justice system relative to fact assessmentis the allocation and degree of the burden of proof. The burden of proof represents the obligation of a party to establish a particular degree of belief as to the contention sought to be proved. In criminal cases the burdenis rooted in the Due Process Clauses of the Fifth and Fourteenth Amendments. (Jn re Winship, supra, 397 U.S. 358, 364.) In capital cases "the sentencing process, as well as thetrial itself, must satisfy the -303- requirements of the Due Process Clause." (Gardner v. Florida (1977) 430 U.S. 349, 358; see also Presnell v. Georgia (1978) 439 U.S. 14.) Aside from the question of the applicability of the Sixth Amendmentto California's penalty phase proceedings, the burden of proof for factual determinations during the penalty phase ofa capitaltrial, whenlife is at stake, must be beyond a reasonable doubt. This is required by both the Due Process Clause of the Fourteenth Amendmentand the Eighth Amendment. b. Imposition of Life or Death The requirements of due processrelative to the burden of persuasion generally depend uponthe significance of what is at stake and the social goal of reducing the likelihood of erroneousresults. (Winship, supra, 397 U.S.at pp. 363-364; see also Addington v. Texas, supra, 441 U.S. 418, 423; Santosky v. Kramer, supra, 455 U.S. 743, 755.) It is impossible to conceive of an interest more significant than humanlife. Far less valued interests are protected by the requirement of proof beyond a reasonable doubt before they may be extinguished. (See Winship, supra (adjudication of juvenile delinquency); People v. Feagley, supra, 14 Cal.3d 338 (commitment as mentally disordered sex offender); People v. Burnick (1975) 14 Cal.3d 306 (same); People v. Thomas (1977) 19 Cal.3d 630 (commitmentas narcotic addict); Conservatorship of Roulet (1979) 23 Cal1.3d 219 (appointment of conservator).) The decision to take a person's life must be made underno less demanding a standard. -304- eee neve Baw In Santosky, supra, the U.S. Supreme Court reasoned: [I]n any given proceeding, the minimum standardof proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about howtherisk of error should be distributed between the litigants. ... When the State brings a criminal action to deny a defendantliberty orlife, .. . "the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment." [Citation omitted.] The stringency of the "beyond a reasonable doubt" standard bespeaksthe 'weight and gravity’ of the private interest affected [citation omitted], society's interest in avoiding erroneousconvictions, and a judgmentthat those interests together require that "society impos[e] almost the entire risk of error uponitself." (455 U.S. at p. 755.) The penalty proceedings,like the child neglect proceedings dealt with in Santosky, involve "imprecise substantive standards that leave determinations unusually open to the subjective values of the [jury]." (Santosky, supra, 455 U.S. at p. 763.) Imposition of a burden of proof beyond a reasonable doubt can be effective in reducing this risk of error, since that standard has long proven its worth as "a prime instrument for reducing the risk of convictions resting on factual error." (Winship, supra, 397 U.S.at p. 363.) Adoption of a reasonable doubt standard would not deprive the State of the power to imposecapital punishment; it would merely serve to maximize"reliability in the determination that death is the appropriate punishmentin a specific case." (Woodson, supra, 428 U.S. at p. 305.) The only risk of error suffered by the State underthe stricter burden of persuasion would be the possibility that a defendant, otherwise deserving of -305- being put to death, would instead be confinedin prison for the rest of his life without possibility of parole. In Monge, the U.S. Supreme Court expressly applied the Santosky rationale for the beyond-a-reasonable-doubt burden of proof requirementto capital sentencing proceedings: "[I]n a capital sentencing proceeding,as in a criminaltrial, 'the interests of the defendant [are] of such magnitudethat . . . they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.’ [Citations.]" (Monge v. California, supra, 524 U.S. at p. 732 (emphasis added), quoting Bullington v. Missouri, 451 U.S. 430, 441 (1981), and Addington v. Texas, 441 U.S. 418, 423-424 (1979).) The sentencer of a person facing the death penalty is required by the due process and Eighth Amendmentconstitutional guarantees to be convinced beyond a reasonable doubt not only are the factual bases for its decision true, but that death is the appropriate sentence. 3. California Law Violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution by Failing to Require That the Jury Base Any Death Sentence on Written Findings Regarding Aggravating Factors. The failure to require written or other specific findings by the jury regarding aggravating factors deprived appellant of his federal due process and Eighth Amendment rights to meaningful appellate review. (California v. Brown, supra, 479 U.S. at p. 543; Gregg v. Georgia, supra, 428 U.S. at p. 195.) Especially given that California juries have -306- 2 ©€ 3B € 8 B ©€ £8 € 8 € R € B £ € B E B oom dees total discretion without any guidance on how to weigh potentially aggravating and mitigating circumstances (People v. Fairbank, supra), there can be no meaningful appellate review without written findings because it will otherwise be impossible to "reconstruct the findings of the state trier of fact." (See Townsendv. Sain (1963) 372 U.S. 293, 313-316.) This Court has held that the absence of written findings by the sentencer does not render the 1978 death penalty scheme unconstitutional. (People v. Fauber, supra, 2 Cal.4th 792, 859; People v. Rogers (2006) 39 Cal.4th 826, 893.) Ironically, such findings are otherwise considered by this Court to be an element of due process so fundamental that they are even required at parole suitability hearings. A convicted prisoner who believes that he or she was improperly denied parole must proceed via a petition for writ of habeas corpus and is required to allege with particularity the circumstancesconstituting the State's wrongful conduct and show prejudice flowing from that conduct. (mn re Sturm (1974) 11 Cal.3d 258.) The parole boardis therefore required to state its reasons for denying parole: "It is unlikely that an inmate seeking to establish that his application for parole was arbitrarily denied can make necessary allegations with the requisite specificity unless he has some knowledgeofthe reasonstherefor." (/d., 11 Cal.3d at p. 267.)The same analysis applies to the far 8Adetermination of parole suitability shares many characteristics with the decision of whether or not to impose the death penalty. In both cases, the subject has already been convicted of a crime, and the decision-maker must -307- graver decision to put someoneto death. In a non-capital case, the sentencer is required by California law to state on the record the reasons for the sentence choice. (Section 1170, subd. (c).) Capital defendants are entitled to more rigorous protections than those afforded non-capital defendants. (Harmelin v. Michigan (1991) 501 U.S. 957, 994.) Since providing more protection to a non-capital defendant than a capital defendant would violate the equal protection clause of the Fourteenth Amendment(see generally Myers v. Yist (9th Cir. 1990) 897 F.2d 417, 421; Ring v. Arizona, supra; Section D, post), the sentencer in a capital case is constitutionally required to identify for the record the aggravating circumstances found and the reasonsfor the penalty chosen. Written findings are essential for a meaningful review of the sentence imposed. (See Mills v. Maryland (1988) 486 U.S. 367, 383, fn. 15.) Even where the decision to impose death is "normative" (People v. Demetrulias, supra, 39 Cal.4th at pp. 41-42) and "moral" (People v. Hawthorne, supra, 4 Cal.4th at p. 79), its basis can be, and should be, articulated. The importance of written findings is recognized throughout this country; post-Furmanstate capital sentencing systems commonly require them. Further, written findings are essential to ensure that a defendant subjected to a capital penalty trial under consider questions of future dangerousness,the presence of remorse,the nature of the crime, etc., in making its decision. (See Title 15, California Code of Regulations, section 2280 et seq.) -308- zo. section 190.3 is afforded the protections guaranteed by the Sixth Amendmentrightto trial by jury. There are no other procedural protections in California's death penalty system that would somehow compensatefor the unreliability inevitably produced by the failure to require an articulation of the reasons for imposing death. (See Kansas v. Marsh, supra, 548 U.S. at pp. 177-178 [statute treating a jury's finding that aggravation and mitigation are in equipoise as a vote for death held constitutional in light of a system filled with other procedural protections, including requirements that the jury find unanimously and beyond a reasonable doubt the existence of aggravating factors and that such factors are not outweighed by mitigating factors].) The failure to require written findings thus violated not only federal due process and the Eighth Amendmentbutalso the rightto trial by jury guaranteed by the Sixth Amendment. 4, California's Death Penalty Statute as Interpreted by the California Supreme Court Forbids Inter-case Proportionality Review, Thereby Guaranteeing Arbitrary, Discriminatory, or Disproportionate [mpositions of the Death Penalty. The Eighth Amendmentto the United States Constitution forbids punishments that are cruel and unusual. The jurisprudence that has emerged applying this ban to the imposition of the death penalty has required that death judgments be proportionate and reliable. One commonlyutilized mechanism for helping to ensure reliability and proportionality in capital sentencing is comparative proportionality review - a procedural -309- safeguard this Court has eschewed. In Pulley v. Harris, supra, 465 U.S. 37, 51 (emphasis added), the high court, while declining to hold that comparative proportionality review is an essential componentof every constitutional capital sentencing scheme,noted the possibility that "there could be a capital sentencing scheme so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review." California's 1978 death penalty statute, as drafted and as construed by this Court and applied in fact, has become just such a sentencing scheme. The high court in Harris, in contrasting the 1978 statute with the 1977 law which the court upheld against a lack-of-comparative-proportionality-review challenge,itself noted that the 1978 law had "greatly expanded"the list of special circumstances. (Harris, 465 U.S. at p. 52, fn. 14.) That numberhas continued to grow, and expansivejudicial interpretations of section 190.2's lying-in-wait special circumstance have madefirst degree murders that can not be charged with a "special circumstance"a rarity. As wehaveseen,that greatly expandedlist fails to meaningfully narrow the pool of death-eligible defendants and hence permits the samesort of arbitrary sentencing as the death penalty schemes struck down in Furman v. Georgia, supra. (See Section | of this Argument, ante.) The statute lacks numerousother procedural safeguards commonly utilized in other capital sentencing jurisdictions (see Section 3, ante), and the statute's principal penalty phase sentencing factor hasitself proved to be an invitation to arbitrary -310- stem Baal! and capricious sentencing (see Section 2, ante). Viewing the lack of comparative proportionality review in the context of the entire California sentencing scheme(see Kansas v. Marsh, supra, 548 U.S. at pp. 177-178), this absence renders that scheme unconstitutional. Section 190.3 does not require that either the trial court or this Court undertake a comparison betweenthis and other similar cases regarding the relative proportionality of the sentence imposed,i.e., inter-case proportionality review. (See People v. Fierro, supra, | Cal.4th at p. 253.) The statute also does not forbid it. The prohibition on the consideration of any evidence showing that death sentences are not being charged or imposed on similarly situated defendantsis strictly the creation of this Court. (See, e.g., People v. Marshall, supra, 50 Cal.3d 907, 946-947.) This Court's categorical refusal to engage in inter-case proportionality review now violates the Eighth Amendment. 5. The Prosecution May Not Rely in the Penalty Phase on Unadjudicated Criminal Activity; Further, Even If It Were Constitutionally Permissible for the Prosecutor to Do So, Such Alleged Criminal Activity Could Not Constitutionally Serve as a Factor in Aggravation Unless Found to Be True Beyond a Reasonable Doubt by a Unanimous Jury. Anyuse of unadjudicated criminalactivity by the jury as an aggravating circumstance undersection 190.3, factor (b), violates due process and the Fifth, Sixth, Eighth, and Fourteenth Amendments, rendering a death sentence unreliable. (See, e.g., Johnson v. Mississippi, supra, 486 U.S. 578; State v. Bobo (Tenn. 1987) 727 S.W.2d -311- 945.) Here, the prosecution presented evidence regarding unadjudicated criminal activity allegedly committed by appellant, i.e., and devoted a portion of its closing argument to arguing these alleged offenses. The U.S. Supreme Court's recent decisions in U. S. v. Booker, supra, Blakely v. Washington, supra, Ring v. Arizona, supra, and Apprendi v. New Jersey, supra, confirm that under the Due Process Clause of the Fourteenth Amendmentandthejurytrial guarantee of the Sixth Amendment, the findings prerequisite to a sentence of death must be made beyond a reasonable doubt bya jury acting as a collective entity. Thus, even if it were constitutionally permissible to rely upon alleged unadjudicated criminalactivity as a factor in aggravation, such alleged criminal activity would have to have been found beyond a reasonable doubt by a unanimousjury. Appellant's jury was not instructed on the need for such a unanimousfinding;noris such aninstruction generally provided for under California's sentencing scheme. 6. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Acted as Barriersto Consideration of Mitigation by Appellant's Jury. The inclusionin the list of potential mitigating factors of such adjectives as "extreme" (see factors (d) and (g)) and "substantial" (see factor (g)) acted as barriers to the consideration of mitigation in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Mills v. Maryland, supra, 486 U.S. 367; Lockett v. Ohio, supra, 438 U.S. 586.) -312- Reet co aia 7. The Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators Precluded a Fair, Reliable, and Evenhanded Administration of the Capital Sanction. As a matter of state law, each of the factors introduced by a prefatory "whether or not" - factors (d), (e), (f), (g), (h), and (j) - were relevant solely as possible mitigators (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v. Edelbacher, supra, 47 Cal.3d at p. 1034). The jury, however, wasleft free to conclude that a "not" answeras to any of these "whether or not" sentencing factors could establish an aggravating circumstance, and wasthus invited to aggravate the sentence upon the basis of non-existent and/or irrational aggravating factors, thereby precluding the reliable, individualized capital sentencing determination required by the Eighth and Fourteenth Amendments. (Woodson v. North Carolina, supra, 428 U.S. 280, 304; Zant v. Stephens, supra, (1983) 462 US.at p. 879.) Further, the jury wasalso left free to aggravate a sentence upon the basis of an affirmative answerto one of these questions, and thus, to convert mitigating evidence (for example, evidence establishing a defendant's mentalillness or defect) into a reason to aggravate a sentence, in violation of both state law and the Eighth and Fourteenth Amendments. This Court has repeatedly rejected the argumentthat a jury would apply factors meant to be only mitigating as aggravating factors weighing towardsa sentence of death: -313- Thetrial court was not constitutionally required to inform the jury that certain sentencing factors were relevant only in mitigation, and the statutory instruction to the jury to consider "whetheror not" certain mitigating factors were present did not impermissibly invite the jury to aggravate the sentence uponthe basis of nonexistent orirrational aggravating factors. (People v. Kraft, supra, 23 Cal.4th at pp. 1078-1079, 99 Cal.Rptr.2d 1, 5 P.3d 68; see People v. Memro, supra, 11 Cal.4th 786, 886-887, 47 Cal.Rptr.2d 219, 905 P.2d 1305.) Indeed, "no reasonable juror could be misled by the language of section 190.3 concerning therelative aggravating or mitigating nature of the various factors." (People v. Arias (1996) 13 Cal.4th 92, 188.) (People v. Morrison (2004) 34 Cal.4th 698, 730; emphasis added.) This assertion is demonstrably false. Within the Morrisoncaseitself there lies evidenceto the contrary. Thetrial judge mistakenly believed that section 190.3, factors (e) and (j) constituted aggravation instead of mitigation. (/d., 32 Cal.4th at pp. 727-729.) This Court recognizedthat the trial court so erred, but found the error to be harmless. (Ibid.) If a seasoned judge could be misled by the languageat issue, how can jurors be expected to avoid making this same mistake? Othertrial judges and prosecutors have been misled in the same way. (See,e.g., People v. Montiel (1994) 5 Cal.4th 877, 944-945; People v. Carpenter, supra, 15 Cal.4th 312, 423-424.) 129 See also People v. Cruz, supra, 44 Cal.4th 636, 681-682 [noting appellant's claim that "a portion of one juror's notes, madepart of the augmented clerk's transcript on appeal, reflects that the juror did 'aggravate [ | his sentence uponthe basis of what were, as a matter of state law, mitigating factors, and did so believing that the State-as represented bythetrial court [through the giving of CALJIC No. 8.85]-had identified them as potentially aggravating factors supporting a sentence of death"; no ruling on merits of claim because the notes "cannot serve to impeachthejury's verdict"]. -314- The very real possibility that appellant's jury aggravated his sentence uponthe basis of nonstatutory aggravation deprived appellant of an important state-law generated procedural safeguard andliberty interest - the right not to be sentenced to death except upon the basis of statutory aggravating factors (People v. Boyd (1985) 38 Cal.3d 765, 772-775) - and thereby violated appellant's Fourteenth Amendmentright to due process. (See Hicks v. Oklahoma, supra, 447 U.S. 343; Fetterly v. Paskett, supra, 997 F.2d 1295, 1300 (holding that Idaho law specifying mannerin which aggravating and mitigating circumstancesare to be weighedcreated a liberty interest protected under the Due Process Clause of the Fourteenth Amendment); and Campbell v. Blodgett (9th Cir. 1993) 997 F.2d $12, 522 [same analysis applied to state of Washington]. It is likely that appellant's jury aggravated his sentence uponthe basis of what were, as a matter of state law, non-existent factors and did so believing that the State - as represented by thetrial court - had identified them as potential aggravating factors supporting a sentence of death. This violated not only state law, but the Eighth Amendment, for it madeit likely that the jury treated appellant "as more deserving of the death penalty than he might otherwise be by relying upon... illusory circumstance[s]." (Stringer v. Black (1992) 503 U.S. 222, 235.) From case to case, even with no difference in the evidence, sentencing juries will discern dramatically different numbers of aggravating circumstances becauseof differing constructions of the CALJIC 8.85 pattern instruction. Different defendants, appearing -315- before different juries, will be sentenced on the basis of different legal standards. "Capital punishment [must] be imposed fairly, and with reasonable consistency, or not at all." (Eddings, supra, 455 U.S. at p. 112.) Whether a capital sentenceis to be imposed cannot be permitted to vary from case to case according to different juries' understandings of how manyfactors on a statutory list the law permits them to weigh on death's side of the scale. D. The California Sentencing Scheme Violates the Equal Protection Clause of the Federal Constitution by Denying Procedural Safeguards to Capital Defendants Which Are Afforded to Non-capital Defendants. As noted in the preceding arguments, the U.S. Supreme Court has repeatedly directed that a greater degree of reliability is required when death is to be imposed and that courts must be vigilant to ensure procedural fairness and accuracyin fact-finding. (See, e.g., Monge v. California, supra, 524 U.S. at pp. 731-732.) Despite this directive California's death penalty scheme provides significantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non- capital crimes. This differential treatment violates the constitutional guarantee of equal protection of the laws. Equal protection analysis begins with identifying the interest at stake. "Personal liberty is a fundamentalinterest, second only to life itself, as an interest protected under both the California and the United States Constitutions." (People v. Olivas (1976) 17 Cal.3d 236, 251.) If the interest is "fundamental," then courts have "adoptedan attitude -316- @ € s £ © 8 F€ FB @ € U € B € RB € B € e w e e e e s U e hU me EU ainiew itso of active andcritical analysis, subjecting the classification to strict scrutiny." (Westbrook v. Milahy (1970) 2 Cal.3d 765, 784-785.) A state may not create a classification scheme whichaffects a fundamental interest without showing that it has a compelling interest which justifies the classification and that the distinctions drawn are necessary to further that purpose. (People v. Olivas, supra; Skinner v. Oklahoma (1942) 316 U.S. 535, 541.) The State cannot meet this burden. Equal protection guarantees must apply with greater force, the scrutiny of the challenged classification be morestrict, and any purported justification by the State of the discrepant treatment be even more compelling because the interest at stake is not simply liberty, butlife itself. In PrietoX” as in Snow,“this Court analogized the process of determining whether to impose death to a sentencing court's traditionally discretionary decision to impose one prison sentence rather than another. (See also, People v. Demetrulias, supra, 39 Cal.4th at p. 41.) Howeveraptor inapt the analogy, California is in the unique position of giving persons sentenced to death significantly fewer procedural protections 130 "As explained earlier, the penalty phase determination in California is normative, not factual. It is therefore analogous to a sentencing court's traditionally discretionary decision to impose one prison sentence rather than another." (Prieto, supra, 30 Cal.4th at p. 275; emphasis added.) 131 "The final step in California capital sentencing is a free weighingofall the factors relating to the defendant's culpability, comparable to a sentencing court's traditionally discretionary decision to, for example, impose one prison sentencerather than another." (Snow, supra, 30 Cal.4th at p. 126,fn. 3; emphasis added.) -317- than a person being sentencedto prison for receiving stolen property, or possessing cocaine. An enhancing allegation in a California non-capital case must be found true unanimously, and beyond a reasonable doubt. (See, e.g., sections 1158, 1158a.) When a California judge makes a sentencing choice in a non-capital case, the court must give "a concise statement of the ultimate facts which the court deemedto constitute circumstances in aggravation or mitigation justifying the term selected." (Cal. Rules of Ct,, rule 4.42(e).) This Court has concededthat, from 2004 (when Blakely was decided) until Jan. 1, 2008, when the DSL scheme was madediscretionary), the Sixth Amendment -- pursuant to Cunningham -- required that, in non-capital cases, findings of aggravating circumstances supporting imposition of the upper term be made beyond a reasonable doubt by a unanimousjury. See /n re Gomez (2009) 45 Cal.4th 650. That buttresses the equal protection claim for capital cases tried in the same time frame. Moreover, both Blakely and Ring applied Apprendito statutes in existence before Apprendi was decided (2000). In a capital sentencing context, by contrast, there is no burden of proof except as to other-crime aggravators, and the jurors need not agree on whatfacts are true, or important, or what aggravating circumstances apply. And unlike proceedings in most states where death is a sentencing option, or in which persons are sentenced for non-capital crimes in California, no reasons for a death sentence need be provided. These -318- ( s s © f 2 € © 8 € 8 discrepancies are skewed against persons subjectto loss of life; they violate equal protection of the laws.2” (Bush v. Gore (2000) 531 U.S. 98.) To provide greater protection to non-capital defendants than to capital defendants violates the due process, equal protection, and cruel and unusual punishment clauses of the Eighth and Fourteenth Amendments. (See, e.g., Mills v. Maryland, supra, 486 U.S. at p. 374; Myers v. YIst, supra, 897 F.2d 417, 421; Ring v. Arizona, supra.) E. California's Use of the Death Penalty as a Regular Form of Punishment Falls Short of International Norms of Humanity and Decency and Violates the Eighth and Fourteenth Amendments; Imposition of the Death Penalty Now Violates the Eighth and Fourteenth Amendmentsto the United States Constitution. The United States stands as one of a small numberofnations that regularly uses the death penalty as a form of punishment. (Soering v. United Kingdom: Whetherthe Continued Use of the Death Penalty in the United States Contradicts International Thinking (1990) 16 Crim. and Civ. Confinement 339, 366.) The nonuse of the death enalty, or its limitation to "exceptional crimes suchas treason" - as opposedto its use asP y P pp 32 Although Ring hinged onthe court's reading of the Sixth Amendment,its ruling directly addressed the question of comparative procedural protections: "Capital defendants, no less than non-capital defendants, we conclude,are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.... The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death." (Ring, supra, 536 U.S. at p. 609.) -319- regular punishment- is particularly uniform in the nations of Western Europe. (See,e.g., Stanford v. Kentucky (1989) 492 U.S. 361, 389 (dis. opn. of Brennan, J.); Thompsonv. Oklahoma (1988) 487 U.S. 815, 830 (plur. opn. of Stevens, J.).) Indeed, as of January 1, 2010, the only countries in the world that have not abolished the death penalty in law or fact are in Asia and Africa - with the exception of the United States. (Amnesty International, "Death Sentences and Executions, 2009 - "Appendix I: Abolitionist and Retentionist Countries as of 31 December 2009" (publ. March 1, 2010) (foundat www.amnesty.org). Although this country is not bound bythe laws of any other sovereigntyin its administration of our criminaljustice system,it has relied from its beginning on the customs and practices of other parts of the world to inform our understanding. "When the United States became an independent nation, they became, to use the language of Chancellor Kent, 'subject to that system of rules which reason, morality, and custom had established amongthe civilized nations of Europeas their public law.(1 Kent's Commentaries 1, quoted in Miller v. United States (1871) 78 U.S. 268, 315 (dis. opn. of Field, J.); Hilton v. Guyot (1895) 159 U.S. 113, 227; Martin v. Waddell's Lessee (1842) 41 U.S. 367, 409.) Due processis not a static concept, and neither is the Eighth Amendment. In the course of determining that the Eighth Amendment now bansthe execution of mentally retarded persons, the U.S. Supreme Court relied in part on the fact that "within the world -320- € s 8 8 oma, eet wae community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." (Atkins v. Virginia (2002) 536 U.S. 304, 316, fn. 21, citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O.T. 2001, No. 00-8727, p. 4.) Thus, assuming arguendo capital punishmentitself is not contrary to international norms of human decency,its use as regular punishment for substantial numbers of crimes - as opposed to extraordinary punishmentfor extraordinary crimes - is. Nations in the Western world no longer acceptit. The Eighth Amendmentdoesnot permit jurisdictions in this nation to lag so far behind. (See Atkins v. Virginia, supra, 536 U.S. at p. 316.) Furthermore, inasmuchas the law of nations now recognizes the impropriety of capital punishment as regular punishment, it is unconstitutional in this country inasmuch as international law is a part of our law. (Hilton v. Guyot, supra, 159 U.S. 113, 227; see also Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. 110, 112.) Categories of crimesthat particularly warrant a close comparison with actual practices in other cases include the imposition of the death penalty for felony-murders or other non-intentional killings, and single-victim homicides. See Article VI, Section 2 of the International Covenant on Civil and Political Rights, which limits the death penalty to only "the most serious crimes."Categories of criminals that warrant such a 183 See Kozinski and Gallagher, Death: The Ultimate Run-OnSentence,46 Case W. Res. L.Rev. 1, 30 (1995). -321- comparison include persons suffering from mental illness or developmental disabilities. (Cf. Ford v. Wainwright (1986) 477 U.S. 399; Atkins v. Virginia, supra.) Thus, the very broad death schemein California and death's use as regular punishmentviolate both international law and the U.S. Constitution. Appellant's death sentence must be reversed. / // -322- XXI. APPELLANT JOINS IN THE ARGUMENTS SUBMITTED BY CO- APPELLANT JOSEPH MORA. Pursuant to California Rules of Court, rule 8.200, subdivision (a)(5), appellant joins in the arguments submitted by co-appellant Joseph Mora to the extent those arguments benefit appellant in his automatic appeal. / // -323- XXII. REVERSAL OF APPELLANT?’S DEATH SENTENCEIS REQUIRED BASED ON THE CUMULATIVEEFFECT OF ERRORS THAT COLLECTIVELY UNDERMINED THE FUNDAMENTAL FAIRNESS OF THE ENTIRE TRIAL AND THE RELIABILITY OF THE JUDGMENT OF DEATH. As argued in Argument XII, ante, the cumulative effect of the guilt phases errors in this case requires reversal of appellant’s convictions. In addition, the death judgment itself must be evaluated in light of the cumulative error occurring at both the guilt and penalty phases of appellant’s trial. (See People v. Hayes (1990) 52 Cal.3d 577, 644 [court considers prejudice of guilt phase instructional error in assessing penalty phase].) In this context, this Court has expressly recognized that evidence that may not affect the guilt determination can havea prejudicial impact on the penalty trial. dn re Marquez (1992) 1 Cal.4th 584, 605, 609 [an error may be harmless at the guilt phase but prejudicial at the penalty phase]; see also People v. Brown, supra, 46 Cal.3d at 466 [error occurring at the guilt phase requires reversal of the penalty determination if there is a reasonable possibility that the jury would have rendered a different verdict absent the error] accord Arizona v. Fulminante (1991) 499 U.S. 279, 301-302 [erroneous introduction of evidence at guilt phases had prejudicial effect on sentencing phase of capital murdertrial].) Here, there is at least a reasonable possibility that the guilt and penalty phase errors in combination hada prejudicial effect upon the jury’s consideration of whether or notto return a judgment of death. Reversal of the death sentence is therefore mandated since the People cannot showthat the collective errors at the guilt and penalty phases had no -324- 4 effect on the penalty verdict. ( See Hitchcok v. Dugger (1987) 481 U.S. 393, 399; Skipper v. South Carolina, supra, 476 U.S.at p. 8; Caldwell v. Mississippi, supra, 472 U.S. at p-.341; Chapmanv. California, supra, 386 U.S. at p.24; People v. Brown, supra, 46 Cal.3d at p. 466.) Accordingly, the combined impact of the various errors in this case requires reversal of appellant’s death sentence. // // -325- CONCLUSION Forall the foregoing reasons, appellant’s conviction mustbe reversed and the judgmentof death mustbeset aside. DATED:July 26, 2010 Respectfully submitted, CLA Tara K. Hoveland Attorney for Appellant -326- e s € 8 € 8 € 8 g * 8 s ¢€ 38 £2 82 € 8 € 8 € 8 € 8 € 8 et 8 are. eee ram, ene, oN nw osei CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE8.630, subd., (b)(2)) I am the attorney assigned to represent appellant, Ruben Rangel, in this automatic appeal. I conducted a word count of this Appellant’s Opening Brief using WordPerfect X3 software. On the basis of that computer-generated word count,I certify that this brief including footnotes, and excluding tables and certificates is 88,180 words in length, whichis less than the maximum 102,000 wordsallowed. I declare under penalty of perjury that the foregoing is true and correct. LP Tara K. Hoveland Dated: July 26, 2010 -327- CERTIFICATE OF SERVICE I, the undersigned,certify: That I am a citizen of the United States, over the age of eighteen years, and not a party to the within cause; | am employed in EI Dorado County, State of California; my business addressis 1034 Emerald Bay Rd., #235, South Lake Tahoe, California 96150. On this date, I caused to be served on the interested parties hereto, a copy of APPELLANT’S OPENING BRIEF ON AUTOMATIC APPEALbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at South Lake Tahoe, California, address as set forth below: Office of the Attorney General Mr. Ruben Rangel #P-43300 John Yang, Deputy Attorney General P.O. Box P-43300 300 S. Spring St., Suite 1702 San Quentin, CA 94974 Los Angeles, CA 90013 California Appellate Project Attn: Valerie Hriciga 101 2nd Street, 6th floor San Francisco, CA 94105 Co-Defendant Counsel Peter Silten, Deputy State Public Defender 221 Main Street, 19th Floor San Francisco, CA 94105 I certify under penalty of perjury under the lawsof the State of California that the foregoing is true and correct to the best of my knowledge,and that this Certificate has been executed on July 26, 2010 at South Lake Tahoe, California 96150. (fot Tara K. Hoveland -328- SueraME COURT COPYPovball| SUPPLEMENTAL CERTIFICATE OF SERVICE I, the undersigned, certify: That I am a citizen of the United States, over the age of eighteen years, and not a party to the within cause; [ am employed in El Dorado County, State of California; my business address is 1034 Emerald Bay Rd., #235, South Lake Tahoe, California 96150. Onthis date, I caused to be served on the interested parties hereto, a copy of APPELLANT RANGEL’S OPENING BRIEF ON AUTOMATIC APPEAL (S079925) by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at South Lake Tahoe, California, address as set forth below: Clerk, Superior Court Honorable Paul A. Bacigalupo SUPREME. COURT 200 W.ComptonBvld. Pie Compton, CA 90220 a , AUG - 4 2010 Law Office of Michael Satris f Ohirich ClerkP.O. Box 337 Frederick K. Oniric Bolinas, CA 94924-0337 Deputy I certify under penalty of perjury under the lawsof the State of California that the foregoing is true and correct to the best of my knowledge, and that this Certificate has been executed on July 29, 2010 at South Lake Tahoe, California 96150. (AL, Tara K. Hoveland
