PEOPLE v. LINTON (DANIEL A.)Appellant’s Opening BriefCal.June 12, 2009“| Hype p es if eer eii : COURT COPY supraCOURT IN THE SUPREME COURTOF THE STATE OF CALIFORNIA 12 2009 Evedariok K, Onlrieh Clerk THE PEOPLE OF THE STATE OF No. CR 60158 ss CALIFORNIA, (Riverside County) Deputy Plaintiff and Respondent, California Supreme VS. Court No. $080054 DANIEL ANDREW LINTON, Defendant and Appellant. AUTOMATIC APPEALFROM A JUDGMENTOF DEATH SUPERIOR COURTOF RIVERSIDE COUNTY THE HONORABLE GORDON R. BURKHART, JUDGE PRESIDING APPELLANT DANIEL ANDREW LINTON’S OPENING BRIEF DIANEE. BERLEY(SBN 93511) 6520 Platt Avenue, PMB 834 West Hills, CA 91307-3218 Telephone: (818) 716-5604 Ernail: BerleyS2@AOL.Com Attorney by Appointmentof the Supreme Court of California for Defendant and Appellant Daniel Andrew Linton IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF No. CR 60158 CALIFORNIA, (Riverside County) Plaintiff and Respondent, California Supreme VS. Court No. S080054 DANIEL ANDREWLINTON, Defendant and Appellant. AUTOMATIC APPEAL FROM A JUDGMENT OF DEATH SUPERIOR COURT OF RIVERSIDE COUNTY THE HONORABLE GORDONR. BURKHART, JUDGE PRESIDING APPELLANT DANIEL ANDREW LINTON’S OPENING BRIEF DIANEE. BERLEY (SBN 93511) 6520 Platt Avenue, PMB 834 West Hills, CA 91307-3218 Telephone: (818) 716-5604 Email: BerleyS2@AOL.Com Attorney by Appointmentof the Supreme Court of California for Defendant and Appellant Daniel Andrew Linton TOPICAL INDEX Table of AUthoritics 0.0... ccc ccccccccceeseceneceeeeeeeeeesceeseceeceseeceaeeeieeecsacesseeseaeeesrerseneesneeeseneees XVil STATEMENTOF THECASE.......cccccccscsessceseesecsenseceeeeeeeeaeenaeeeseeenssaceceneeeeeseneseeeseeeeeaeeeaeees 1 I. INFORMATION AND NOTICE OF INTENTION TO SEEK CAPITAL PUNISHMENT.........ccccecccesceseceeseceeeeeceeesenseeaneneeeeeseesneseeseaeeeaeteerensees 1 Il. REPRESENTATION AND ARRAIGNMENT...... cece cceceeseeeeeeeeteseestseeeseeeenstens 2 II. PRELIMINARY HEARING AND PENAL CODESECTION995 MOTION.......cccccccsscesesssesssessceseesceeeesseeeseceaeeceaeceaecaeceaecsueeeseeseesseeeaesaeesesesseseeeeestenaes 3 TV. PRETRIAL LAW AND MOTION oo. cceecceeeceeseseeseeeeseceeeceeeceeeateesseeeseeseeseseneens 3 A. Motion to Suppress Defendant’s Statements ..0....... cece eeeeceeeneeeeeeeteeeeeeeeeeeees 3 B. Motion to Sever Count..........cccccccsseceesssreeseneeeseareceesaneceaaeeessaeesssneeesenaeeseseneeeenes 4 C. Motion to Suppress Defendant’s Statements to His Mother While im Jail oo.eee eeceeseeeseeeeeeseeessaeeecesaeeesaceeeseceeessaeessnteseesenereeee 4 D. Motion to Call Prosecuting Attorney as a Witness (Recusal) ...........cceceeeeeeees 4 E. Motion to Suppress Items Seized from Defendant’s Room..............eceeeereeees 5 F. Motion to Exclude Evidence Based on Tampering With Interview Tape .......cccccceccecsccsecessceceseesaeeceeaeeccecseecenaeeseeesaeeseneseeaeeseeeseteesseeeeaes 5 G. Motion to Suppress Defendant’s Statement to Dr. Rath Based on the Psychotherapist / Patient Privilege. ....... ee eeceaecesseseseseerecssseesseeeeeeeseeeeeseeeessaes 6 H. Motion to Estop or Otherwise Preclude the People from Charging Special Circumstances 0.0.0... eeeeseseceecesteceseeessseesneesesseeeccseeseaeecsaeeeeateneaeeenseeees 6 I. Motion to Exclude Defendant’s Statements Regarding Counts II, III and LV weeecccceccessccsscesecsecescessecaeessescessceesecesecnaeesseceseeeeeeaeeseresseeaeesseeeaeecsesseeatenseeenstenss 6 V. GUILT PHASE000cec cecscenccsneeereeeccnessseeeesesseuesseassesesssessseesesaeneesesneesnanees 6 A. Voir Dire .....cccccccccccccccccccucceccusuccsccscecaeceecececuececseuceccsseccuececesecesusesenuaseuaaesseassusseeuss 6 B. Prosecution and Defense Cases ...........ccccccsecessecccessceeceusucenersecavecseeesesuesecseseeseesenees 8 C. Renewed Motions and Objections...ceceees sescesseceneseeeeeseeeeeeeeeseessneenseseneentes 9 D. Instruction Settlement .0..........ccccececececeeeeeeeeeeeereseeseseseneseseaeeessaeeeeeeeeneaneeeesagetenags 9 E. Closing Argument and Instructions...........cccccccseesseeseesseeeeeneeeneeteeenerieeseeteetereneaeaes 9 F. Deliberations .........cccccccccsccsseceseesceeeeeeneecareeaceesnereeeseaseseeesseessenseseesseasaeeeseeseenseeeees 10 G. Verdict ..eccccccccecccescsessceseseccsseccsseeeseeeeseeeeneeseeatessaeecessssssesesseeeesseesegaeeseeessseeneneneees 11 VI. PENALTY PHASE.......cccccccccsccccccscececeeeeeneecneeseesenecesesesaeeeeesseeesseseneesseeeseseseeeseesseesaeey 12 A. Law and Motion .u......cccccccccccceeseeceeneeceenceteneneeecseenesseseesesnaaeessessaeeeeneeseegsesseeeeeney 12 B. Prosecution and Defense Cases..........ecesceseecssesessesssseseecsaseseeeneeenseneessseseeneess 12 C. Instruction Settlement ...........cccececeeeceeeeeeeeeeereeeeeeseeeeseeseeeeeeneeesessasseeeseeesneeeeetens 12 D. Closing Argument and Instructions .........:ccceceseeeseeseeeeceeeeseeenereeeeenaeeneeneseneens 13 E. Deliberations and Verdict .........ccccceeccsssceceeeeessesesscseeeseseesesseeessecesseneeseeseeeenetens 13 VII. POST TRIAL MOTIONS FOR NEW TRIAL AND TO MODIFY VERDICT oii eeccecccccccscccsscessceeeseeeseseceaeeeeesereseneseeeeeeesssssesesecesasseeeeanesseseesesesessesenenegess 14 VII. SENTENCING uuu ..cecccccccecccscccsccesseenececrceeeeeaeceaeeeseeeseeseeseeeeseeesesssensenessaeseaeeeseenaeeneees 14 TX. APPEAL iccecccccccccccscccscccsscesessecsceeeeeeseeesereseeeaeeeseesesseseeseeecseseasesseesaseeseeeesnesseeseeesy 15 STATEMENTOF FACTS.0.....ccccccccccecsscececseecneceeeeseesesessassseeesnsesseessseseseesneseseeesaeeeesaeeaes 16 T. GUILT PHASEoii ceccccccccccccccccscessseeseeseeseeceneeceeteneeenneeceeessesesuesuseseseaseseeeseeeeesseees 16 A. PROSECUTION CASE u....cccccccccscecseesececeeeneecneeceesssssesecesseacseasesesesesneesessesssensees 16 1. Background ....... ce ceceeceeesssseseeesecssesseenecnseessenseeseessesseesseersesserereneseeeneeeaes 16 2. Prior Incident: Late September — Early October 1994 oo...cece 16 il 3. Events ofNovember 29 and 30, 1994 ooocccccccsccscsesssceseseseceseseeeaaeenes 18 a. Strangling of Melissa oo... ceccceseeescececeeseeeceeeeceeseeesesesseeesseeeensaeees 18 b. Discovery of Melissa and Police Investigation .......... ec eeeeeseeeseeeeeees 19 c. First Interviews of Appellant ............eccecesceeecesseceeteeesseseseesseeeesseeeeens 20 d. Second Interview of Appellant: ...........eeccceeceesceeeseeesseseseeneseesesessaeeeens 21 e. Third Interview of Appellant 00...eeeeecseeeeeeeeeereesneesseeeesaaeeenes 22 f. Search and Seizure of Items from Linton Home.............ccceeeeeee 23 4. Forensic Evidence... ccccccccccsseceesneecesneeeeeseeececeneeseeeseeseceeasessuseeessaeeeeeeeegs 24 a. Autopsy Results oeeeesecscssceceneeseeceaessaesseessereeseatsnseseaeeseeeseeees 24 b. Fingerprint, DNA and ABO Typing Results oecceeeceseeeeneees 24 B. DEFENSE CASE ouui..ceececceccesccsceeeseeeeeeenecseesseesenesaeeseneseteeessaeeeaeeaeeeaesneeseateesaeess 25 1. Summaryof Testimony.00...... ce eceeseeseesseeserceseeseeesseeeeeeneesaeseseesseseaeseeeenaes 25 2. Werner Spitz, M.D., Forensic Pathologist 2.0.0... ces eccceceseeseeesteessseeeessaes 26 3. Craig Rath, Ph.D., Prosecution Psychologist ............cceeceesseesseeereseeesessseees 26 4. John Chessell, Deputy District Attorney ...........cceeceecccsseesseesseeesseecsseeeeenees 28 5. Melody Morris, RN. wo... ceeeceecesseesseceseesseceseeeseeeeesseeseesseseateatenatenieeseeesenees 29 6. Cecil Whiting, Ph.D., Clinical Psychologist 2.0... eeceseeseseseeeessseeeeteeees 29 C. REBUTTAL 0.0... eccecccccecneeeneeesessnseneeceesenecsaeecaneeseesacessaesnesarseresaseaeesaeessaeseaaeenaes 32 iii IL. PENALTY PHASE..0...ecseesseesseesteecesesseeeseecsneeneeenneeneeneeseenceareescnssessscesesseanseananeey 33 A. PROSECUTION CASE ......ccccccccecceceeeseeeeesseseseesesreseeesecseesseeseeneesaseneseeseatens 33 1. Victim Impact Evidence oo...ieee ee cceeeseeseseeenecneeneeeneseneteneeneeneseeenaes 33 B. DEFENSE CASE ooneccccceccccccccccseeecseseeseceseessecsessscnesenecnecnesssesseesseseeseenreneeaas 35 1. Educational History...eeececscessecesssecenseeeneeeseessaeensaeersieeeraaeetneeesages 35 2. Family History 0.0...ccc ecesessseseeeccsesseneesenecseseeseeseeeesenerseeneesenecsseeenatanes 4] 3. Involvement in Live Action Role-Playing Games ...........c:cccseseeeeees 49 ARGUMENT....cecccccceccccssceseessecesscsseccsseeseecneeseseatenaceessesesuessssesaesseecseseseseneesaeeeesenereneeneeey 53 GUILT PHASE ISSUES......cccccccccccecececeseesereseeeeneesesesaeeeneasaeesseesseeeeennesseeseaeeeaeenae 53 I. THE PROSECUTION’S HOUSE OF CARDS: INVOLUNTARY CONFESSION AND RELATED ISSUES 0...cenceeenenneeteeeeeneeeesateeaaeeaaes 53 A. The Trial Court Violated Appellant’s Right to Due Process and Against Self-Incrimination Under the Fifth and Fourteenth Amendmentsto the Federal Constitution and Article I, Section 7 of the California Constitution, WhenIt Overruled Legal Challenges to Police Interrogation Tactics Which Vitiated His Miranda Waiver, Overbore His Will and Rendered His Confession Involuntary. ..........::ceceseeseees 53 1. Evolution of a False Confession From “Water Underthe Bridge” To “I Tried To Reap Her”: How the Prosecution GotIts Special Circumstance .........ccccceecesseseeseeseeseeteeereeeeeeeseeeenerees 53 2. Standard of REViCW ......c.ccccccccscceeseeeeeetenseeseeesessessecessseessseeesesesneesegs 54 3. Factual and Procedural Background ...........cccceeeeeeeeteeneeeeseeteetenee 55 a. Appellant’s Coerced Confession: Prior Attempted RAD oeeeeecccecceceesceessesetseeesersenseeeesssecaeensessesseenaeerssesessnesseeeeenes 55 b. Motion to Suppress — Hearings..........ccccccseseseeseeeeeeeeneeeneens 58 C. Motion to Suppress — Denial ........ccecccceeeeseeceseeteeeeeeeeeeneeens 59 iv d. Interrogation Evidence Presented to the Jury oe59 e. Prosecution Theory of the Case in Closing Argument.......... 59 f. VeLiCt oe eecccecccsccceesecseeesseeaeceaeeeaeeeeeaeseateesterseeeaeeserevseesanens 61 4. Governing Law and Application ......eeeeseeeeceeeeneteeeseeeseeenates 61 a. The Interrogation Of Appellant in His Bedroom On the Evening OfNovember 29, 1994 Was Custodial and Required Suppression Of His Responses ........ cee esecesssecseesneseesseesseeens 61 b. The False Promise Made By Detective Glenn Stotz and Deputy District Attorney William Mitchell on November29, 1994 in Appellant’s Bedroom That Any Prior Sexual Encounter With Melissa Was “Water Under the Bridge” Vitiated Appellant’s Purported Miranda Waiver the Next Morning, November30, 1994. oicccccccccccccsccsesssssssceeeeeeeseesseeesessreeseenes 68 Cc. Appellant’s Confession on November30, 1994 WasInvoluntary Underthe Totality of the Circumstances, Induced by the False Promise and Other Factors Creating an Atmosphere of Coercion. ......eceeeccesseeneesseeeseseseaseesseeeseeeenes 69 (1) 8:45 a.m.: Questioning by Detectives Glenn Stotz and Michael Lynn, Including Repeated Assurance Of LENMICNCY eeeeeeeceeeneeeeseeeeeeeeeeteeeeeeeetaeeteesaeeenteeenses 72 (2) 9:45 a.m.: Questioning by Detective Glenn Stotz, Including Repeated Unsuccessful Attempts to Elicit Sexual Motivation As To Both Incidents. .......... 74 (3) 10:40 a.m.: Questioning by Detective Glenn Stotz and Deputy District Attorney John Chessell, Including More Unsuccessful Attempts to Elicit Admission of Intent to Commit Sexual Assault ........... 77 (4) 12:45 p.m.: Questioning by Craig Rath, Ph.D., Prosecution Psychologist, Including Yet Another Unsuccessful Attempt to Elicit Admission of Intent to Commit Sexual Assault...eeeeeeeeeeeeeee 81 (5) 3:40 p.m.: Resumed Questioning by Detective Stotz and Sergeant Frederick Rodriguez, Including Good Cop-Bad Cop Technique and Further Unsuccessful Attempt to Elicit Admission of Intent to Commit Sexual Assault...eee83 (6) 4:00 p.m.: Appellant’s Stress-Compliant Answer to “Tell me the truth, and I’Il turn the machine off [sic]”: “TI tried to reap her.” wo...ceceeeeeseeeeeteeteeees 85 (7) Other Circumstances Rendering the Interrogation InvOlUntary oo... ceceeeeeeeeeseesesensecesssesesneeesssecseeeesneees 90 COnCIUSION ....cccceecsecccesceceseseceesnneeeeseeeeeeessaseseesersaeeeeesseeeesseeeeeseeeeensetees 92 PrejUGICE .o.eeeeeceeceeceneceseneeeeeesceecesaseeseesesseessesesecseeseesecsetsesserseseeenerseatey 93 a.. Deconstructing Prosecution Theory of the Case: How Melissa’s Nightmare MorphedInto Prior Sexual Assault and Rape-Murder Special Circumstance 0.0.0... ccccsceceeeeseseeseenecneseeeneeneeseeereets 95 (1) Genesis: Melissa’s Nightmare...........ccccsseeeeeeees 96 (2) Evolution: Nightmare + Sleepwalking + Coercive Interrogation Encompassing Express Promises of Leniency = Counts 2, 3 and 4 Prior Bad Acts ..ccciccccccssccessceeseceesececeseeceneeseseeesssesensesesssneeesenes 97 (3) Result: Prior Sexual Assault = Murder With Special Circumstance... ccccceceeeseeesesseetseeeesesseneens 98 b. Close Case Indicators 0.0.0... eesccesssecesereeeeseseeenseeseseeesnseesneesnaes 99 (1) The Jury Deliberated for Three DayS ..........:ceceeees 99 (2) The Jury Was Concerned aboutthe Efficacy of Appellant’s Miranda Waiver; the Truth About Appellant’s Confession; and the Possibility of Appellant’s Innocence ....... ee cceceeeeseeeeeeeeeeeeeeeeeeneeers 100 c. The Verdict is Not Reliable and Reversal is Required............ 103 v1 The Trial Court Unfairly Frustrated Defense Efforts to Present a Defense Establishing that Appellant’s Confession Was False and Involuntary, in Violation of His Rights to Due Process and Confrontation of Witnesses Underthe Fifth, Sixth and Fourteenth Amendments to the Federal Constitution and Article I, Section 7 of the California Constitution. ..........ccceceeccececeeesceeeseseeceeesseensneeesseeesseesseeens 104 LD. Tmtroduction oo... eee eeececccesccsecensceseeseecesecseceeeceeseaeceeeseeseuressesenseeeeeasenes 104 2. The Court Refused to Admit the Testimony of False Confession Expert Richard Ofshe, Ph.D., Whose Testimony Would Have Assisted the Jury in Deciphering Why Appellant Would Falsely Confess to Attempted Rape..........ceccceesesccceseeeeaeeeseneessneessseeesneessnesees 106 a. Standard Of REVICW .0.......ccccecsceeeceeceeececeaceeesseessesseseessseeseeseas 106 b. Factual and Procedural Background............cccccsceseseeesseesseeees 106 c. Governing Law and Application ...........ccccccccssseceessesesseeeees 107 Prejudice ooo... ccc cceccecesseeeessseesseeeeeseeeeeseeecesseeeeesssesessaesensees 115 3. The Court Refused Cross-Examination of the Architect of Appellant’s False Confession, Deputy District Attorney William Mitchell. oo...cece cccccesseecseecesceseeeseeneesseesseeseseesseeeseesesessenes 116 a. Standard Of ReViCw .0.......ccceccesseeececeeeeeeeeeeseeeseeesnseesaeeesnesates 116 b. Factual and Procedural Background .......... ce ceesceeseeseeeeeeneeaes 116 C. Governing Law and Application ..........ccesecssecceessseeeseeetseees 124 d. PrejUCiCe oo... .eeeceeccceccececceeceeeeceeceeesceesaeessnecsaeeeeaeeesaeeseseesseeeatens 130 5. The Court Restricted Cross-Examination of Detective Glenn Stotz, Appellant’s Chief Interrogator... ceeesesecceseeseeeeeteeeseeseenees 131 a. Standard Of REVICW .........ccceesceescceeeeeteeteeeseeeeeeteeeeeseeseasesteeentesss 131 b. Governing Law and Application ...........ccecccccssceesseeessseeseeeseeeees 131 (1) Understanding of Proper Interrogation Technique........... 132 vil (2) Direction and Instructions Received From District Attorney Mitchel] 0... ce eceeessssceseeeseseesesecneesseneseenetieenens 135 (3) Gaps Occurring When the Tape Recorder Was Not On and Questions as to WhoInitiated Conversation..............++ 137 (4) Untruths and Misrepresentations Made to Appellantto Elicit ACMiSSIONS............::ccceeseeeeeneesesseeeecesneeeeesneeeenseeeeeseeenses 138 (5) Strategy to Persuade Appellant That He Intended to Rape or Sexually Assault Melissa Either at the Time of Her Death or Several Weeks (or Months) Earlier.................. 141 c. PLEJUCICE oo. eee eeeeeeseseeeeteesceseceeeseesesseesenseeeeecseteeenteneesseseeesenenes 157 II. JUROR MISCONDUCT: THE TRIAL COURT REFUSED TO EXCUSE A JUROR WHO ADMITTEDLY VIOLATED INSTRUCTIONS AND DISCUSSED THE CASE WITH HER HUSBAND,IN VIOLATION THE SIXTH AND FOURTEENTH AMENDMENTSTO THE FEDERAL CONSTITUTION AND ARTICLEI, SECTION 7 AND 16 OF THE CALIFORNIA CONSTITUTION........cccccccceeesesereesesescsessssesesensencseeeneenenstseeeneaearanes 158 A. Standard of REVieWw ........ccccccccecceseeeeceeeteecseessstseeesecssesassessceesecsesessenesseneegs 158 B. Factual and Procedural Background 0.0... ccceesceseseeeeeseseneneeeeeteeeenene 159 C. Governing Law and Application .......eccceeseseseeeeeceeeseeeteeererre tenes 158 D. Prejudice oo... eeecececeeeceeseseeesestenscecseessesnssseseseeneseseneenssaeaeaeseasaensssasenacererenenes 163 Ill. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS,A FAIR TRIAL AND THE RIGHT TO A JURY DETERMINATION, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTSTO THE FEDERAL CONSTITUTION AND ARTICLEI, SECTIONS 7 AND 16 OF THE CALIFORNIA CONSTITUTION, WHEN IT FAILED TO INSTRUCT PURSUANTTO CALJIC NO.2.70 THAT UNRECORDED ORAL ADMISSIONS SHOULD BE VIEWED WITH CAUTION.......cccccccsesteeeeeteetereeees 166 A. Standard of Review .0.....c.cccccccccecesccceeeecetseeerseestsssseseserseaeessessecsesessenerseneegs 167 B. Factual and Procedural Background0...ccsseseseeteneeeeeeeeeeneteeees 167 vill IV. 1. Motion to Suppress........ ccc cecccseceesecereenreeneecesesecessereesessseseeeeaeeeneeeeseens 167 2. Trial Testimony .......ccecccccccccccssccceeneeceseeeeeesseessneeeeessseeesseseenseeseesssees 167 3. TMStUCtlONS 0...eecece cesceeeeeeeeeeeceeeeeseeeaeeeseeesenetesscesaaaeesseeesaeccusessaes 170 C. Governing Law and Application...ecceeeeeeeeseeeceseseseeseneeseesenes 172 DD. Prejudice oo...eeecccceccscesssssseseeceseseeseesenecacseseeseseseessesaeeeeaeeesseesessessensseeacseeaes 174 CUMULATIVE PREJUDICE... cccccccceesseceseeseeeeneeeseeneeseaeseaeeeesenseeneeeeeseneees 176 PENALTY PHASE ISSUES THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS, A FAIR TRIAL, AND THE RIGHT TO PRESENT A DEFENSE PURSUANT TO THE FEDERAL AND STATE CONSTITUTIONS, WHENIT REFUSED TO ADMIT EVIDENCE THAT THE AUTHORITIES COERCED HIM INTO MAKING A FALSE CONFESSION, GIVING RISE TO LINGERING DOUBT PURSUANTTO PENAL CODESECTION 190.3, SUBDIVISION(K).......... 180 A. Tmtroduction ........ceccccecceecceseceeeesceeceececsaeesseeeaeeeesacecsaeeesaeeeeeeeeseeesaeeseeseeseeses 180 B. Factual and Procedural Background .........cceeccceeesseeeeeeeeseneceeesseeeessneceesaaes 182 1. Proffered Testimony of Richard Leo, Ph.D. About False Confessions, Argument and Ruling ....... eee eeseeseesseeteeeeeseeeeneeaes 182 2. Proffered Testimony of Cecil Whiting, Ph.D. About Appellant’s Mental State, Argument and Ruling «0.0.0...eee183 3. Proffered Testimony of Deputy District Attorney William Mitchell About Appellant’s Interrogation, Argument and Ruling oo...cee ceeceeeeeeenceesereeaeeeeseaeeseeesseseareetensesses 185 4, Surry Instructions ooo...cc cecccessecessseceesneeeeeeeeeeseeecssssessesseseseeeeenes 185 5. Prosecution Closing Argument .......... cee ceeeeeeseceseeeteeeeereessseseneesseee 186 C. Governing Law and Application ............cecceecceesesseceeceeseeeeaeeeesesesseessseeessees 187 D. PrejUdice 20.......eeeccceeccenceeeccecceceeeeseeeecaeeesceesseeesnecseaaeeeneceneeessecesseesseseaeeseneeens 192 1x VI. VII. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS, FAIR TRIAL, AND THE RIGHT TO PRESENT A DEFENSE PURSUANTTO THE FEDERAL AND STATE CONSTITUTIONS, WHEN IT REFUSED TO ALLOW THE DEFENSE TO INTRODUCE THIRD PARTY CULPABILITY EVIDENCE ABOUT A NAKED LATE-NIGHT MALE INTRUDERIN THE NEIGHBORHOOD.............eee 195 A. TmtrOduction.......ccccccccesscecssccesecessceceecetesseteseeeesseccsusesseesesaseesseseseaesnanerereeseeey 195 B. Standard of REViCW .......ccccccccccescescecseecceseeseeseseseeesseeeeessaeseeseseaeeeenseesneeey 196 C. Factual and Procedural Background .0.......h..ccceececcsseeeeesseeeseeeeesseeneeeeneeetaes 196 D. Governing Law and Application .0....... ccc eccccseeeeenseneeeeseeeeeeteeeseneenerseee 197 FE. Prejudice oo... .ecceeecceceeceeeeeseresessseeeseeseeseseecsecsesessesersseeseronesesassnersetseesseesseens 201 THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS AND A FAIR TRIAL PURSUANT TO THE FEDERAL AND STATE CONSTITUTIONS, WHEN IT ADMITTED EMOTION-PROVOKING PHOTOGRAPHS AND TESTIMONY AS VICTIM IMPACT EVIDENCE oo... iceececseseseseeeneseneesseeeneesneeesesteeeenentaey 202 A. Tntroducction....... ccc ccceecececeeseeneeeeeeeseesensseneseasccansesesesessaeesseesseesssesieeerneenieey 202 B. Standard Of REViICW .......:ccccceecccesececeeseeeseeeseeseeecsecsesssnesseesseeeseeseenseeseaeennenas 202 C. Factual and Procedural Background .........ccecceesseseseeeeeseeeeseesseeenseenaes 203 1. Pretrial Motion to Limit Penalty Phase Victim Impact EVICONCE.......eeecceseccesecesecessnesececeeneeseesenneeeseeeesecessasessneeensaeenaneeseeeeees 203 2. Penalty Phase Victim Impact Evidence ........:cccesceseeseteeteereeeetteesens 204 D. Governing Law and Application oo... cece ecceeeseeseteesseeneereesneeeeeetetereseegs 206 EF, Prejudice oo... eceeeeseeeseesceseeecnseessseesecsecesceeeseeneseecneenecsesseseeenessasseeseresetseeeaes 214 VI. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS, A FAIR TRIAL, AND A RELIABLE PENALTY DETERMINATION, WHENIT INSTRUCTED THE JURY ABOUT MITIGATING FACTORS UNSUPPORTED BY THE EVIDENCEIN CALJIC NO. 8.85 oooecccceceeteeeeees 215 A. Tntroduction ........e.ceeceeecceecceeceeesseeeeeceaeeeeeecaneecneseaaaeecsaetsatesseeeeseeseaucesseeeesaes 215 B. Factual and Procedural Background ..........ccccccessceesseessseeteecssesesseeeseesenanees 216 C. Governing Law and Application .............cccecccceececeeseeceseeeeeeesseeseeeeeseeesseeeens 218 D. PrejUdice oo... eee ceceeseesseesseseceaeceeseeseeaeceeeeseceaeesseceaeeseeeeseseeessesaseseeesessesseensaees 221 IX. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS, A FAIR TRIAL, AND A RELIABLE PENALTY DETERMINATION, WHENIT INSTRUCTED THE JURY ABOUT THE PROCESS OF WEIGHING FACTORS UNDER MODIFIED CALJIC NO. 8.88 oo. 223 A. Introduction .......eceeceeccseceseenseeeneeseceeceseeaecesteeseecseeceaeeseeeesesteeesesseeesseesseeesaees 223 B. Factual and Procedural Background ...........ccccecsssecsseeseseeeceseeesseeeesteeseneees 223 C. Governing Law and Application ......... ccc ccccecsecseseeesecessecsseceseseesesenseeeens 226 1. CALJIC No.8.88 Failed to Inform the Jurors That If 3. They Determined That Mitigation Outweighed Aggravation, They Were Required to Impose a Sentence of Life Without Possibility of Parole ........cccecesceseeneeeeeceneeesneceetseeeaeeseeeasesseesseesseeeeae 226 CALJIC No. 8.88 Failed to Inform the Jurors That They HadDiscretion to Impose Life Without Possibility of Parole Even in the Absenceof Mitigating Evidence ..0........cccccccccssssessecsseeeseesseeesstresseeeens 228 The "So Substantial" Standard for Comparing Mitigating and Aggravating Circumstances Set Forth in CALJIC No.8.88 Is Unconstitutionally Vague and Fails to Set Forth the Correct Statutory Standard... cccccesceccsssecesecetsecsseesseecessessteeesaes 230 x1 4. CALJIC No. 8.88 Failed to Conveyto the Jury That the Central Decision at the Penalty Phase Is the Determination of the Appropriate Punishment .............::cccceeseereeeeeeeeees 231 D. PLEjUCICE oo. eececcescesecseeeeeteteceeeeseeseeecsesseseesseceesesessecseesesaeneseeseesseraeeneenneatenes 231 X. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS AND A FAIR TRIAL, WHEN IT PERMITTED THE DISTRICT ATTORNEY TO COMMIT MULTIPLE ACTS OF MISCONDUCT DURINGFINAL ARGUMENT..uie.ccccccccccsccessccetsceecnseceeecececenesneccecscersesessescssesssessesesaseaeegeesaneseneenas 233 A. Introduction .......cccccccsscccsscesseeesecesseeeeeeseneeeeseeeseecessseeseseaesesseseseeeseaeeneneeey 233 B. Tssue PreservatiOn .........cccccccssceeceeceteeeceeeeseeessensesensnseeesssseeeeuesssaseseeeniereneaes 233 C. Governing Law and Application .......... ccc ccesesseseetecreeeereneseetsessereeeeraeens 237 1. The Prosecutor Was Duty-Bound to Seek Justice and Fairness In Pursuing Appellant’s Conviction ..........cccccceseseeseeeeeees 237 2. The Prosecutor Portrayed Defense Counsel As Dishonest Villains Who Sought To Mislead the Jury ...........ccccceseeeeeeceeeeeeenee 238 3. The Prosecutor Vouched For Key Prosecution Witnesses. .............. 241 4. The Prosecutor Argued Facts Not In Evidence .........:cccceseeseeeeeee 242 a. “Fact” that Appellant Masturbated in Melissa’s Underwear Immediately After the Killing...cece243 b. “Fact” that Appellant Expressed No Remotse.............::::000 245 c. “Fact” that Appellant Would Have a Comfortable Life in Prison, With Amenities Such as Books and TeleViSiON ......cccccccccsscececeeeeeereneceeseaseesesenessessesesseeeseesnseaeenaneseges 247 5. The Prosecutor Appealed to Public Passion and Sentiment............. 247 D. PLEGUCICE oo... cceceeceseecceteeeeeeeeeeeseeecseesesssesesnecneseaeeecsesseneseetsesieseeseseaeenenanoney 249 xii XI. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS, A FAIR TRIAL, AND THE RIGHT TO A JURY TRIAL, WHEN IT FAILED TO FURTHER INQUIRE INTO ALLEGATIONS OF MISCONDUCT AFTER TWO JURORS EXCHANGED EMAILS DURING DELIBERATIONS, OUT OF THE PRESENCE OF OTHER JURORS. oon.eccccccccccccceecseesceceseceeessaeceesseeseeessaesseeeaeecseeaeesasessceseeeseeentens 250 A. Tintroduction.......eceececcceccessecseceseeceencerececesessceeeeceaeensessresseecseecsessaeeseeesseesas 250 B. Standard of Review .......ccccccccccccsscesecsseeeseesseseeeeeeensecesesseteaessaesessesueeesseesssenes 250 C. Factual and Procedural Background 000.........ccceescecssessseeesseessceesseeeeesseseesens 251 C. Governing Law and Application .........cccccceccssesssseesecesseeeseeenseeesseeeeetneentees 252 D. PLeJUCICE oe. eeeeesceessesscesnecteceaeeeseseeecaeeesesseeceseeeaeceseesseesecnsesaeeseseseseaeeseees 256 XII. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT ANDAPPLIED AT APPELLANT’S TRIAL, VIOLATESTHE UNITED STATES CONSTITUTION.0... cceeeceeeeenceeeseeeeeesesseseaeeneeseeseaeeseneeeneeeaes 257 A. APPELLANT’S DEATH PENALTYIS INVALID BECAUSE PENAL CODE§ 190.2 IS IMPERMISSIBLY BROAD.00...cee eeeceseeeteeeeseetecteseaeeseeneeneees 259 B. APPELLANT’S DEATH PENALTYIS INVALID BECAUSE PENAL CODE§ 190.3(a) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION. o.ooececceecsesseessensesceeeenecsscesseesesanesseesaeeeesaeeetsateaesaessessaeesseesseaeees 261 C. CALIFORNIA’S DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDSTO AVOID ARBITRARY AND CAPRICIOUS SENTENCING AND DEPRIVES DEFENDANTSOF THE RIGHT TO A JURY DETERMINATION OF EACH FACTUAL PREREQUISITE TO A SENTENCE OF DEATH; IT THEREFORE VIOLATESTHE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTIONDocecccceeeseetsesserseeeeenecssnesseesersnecneessessesaesaseereeessessesaaeessesseeaeens 262 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 xill Constitutional Right to Jury Determination Beyond a Reasonable Doubt of All Facts Essential to the Imposition of a Death Penalty Was Thereby Violated... cccccccsccsscccsseecesscseecesseeceneeesseeeceeceeeeeseeeessasesseesenseessesessseaeseesseeseasegeeens 264 a. In the Wake ofApprendi, Ring, Blakely, and Cunningham, Any Juty Finding Necessaty to the Imposition of Death Must Be Found True Beyond a Reasonable Doubt. 266 b. Whether Aggravating Factors Outweigh Mitigating FactorsIs a Factual Question That Must Be Resolved Beyond a Reasonable Doubt. 272 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 Peralty. ....cccccceccecceeesseseeeeeeseeecseensesesseseseessessseseesesseesenesseseeeseeseeseeeeeseeeneeeeserseeaseaetanes 274 a. Factual Determinations 275 b. Imposition of Life or Death 271 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............. 277 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. 00.0... ccceeeecssseeeeeesesesseseseseesseseeessseeesseeesasesseeeneesseeseeeeseenaeeeaeeeniens 279 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..........:ccccccceseeeeeneeteteneneereeeeaes 281 XIV 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... ccccccsscccsseccscessssecceseeeceeseeecesereceesseeesseuesssesecsueeesecsesesseseeesseees 282 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. .........ceecceeceeeceeeseeeeceeeeseeseteeesseeeneeeeseeereees 282 XII. THE CALIFORNIA SENTENCING SCHEME VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION BY DENYING PROCEDURAL SAFEGUARDSTO CAPITAL DEFENDANTS WHICH ARE AFFORDED TO NON-CAPITAL DEFENDANTS....000.ceeeeeeeee 285 XIV. 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.........eee 287 XV. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS UNDER THE FEDERAL AND STATE CONSTITUTIONS, WHEN IT PERMITTED APPELLANT TO BE CONVICTED BASED ON ERRORS THAT CUMULATIVELY AND INDIVIDUALLY, DENIED HIM A FAIR TRIAL A. Governing Law Regarding Cumulative Error and Prejudice 00.0.0...290 B. The Court Neutralized the Defense Case in Mitigation By Excluding Evidence that Raised a Lingering Doubt as to Whether Appellant Committed the Prior Attack on Melissa and Refusing to Excise the Portion of CALJIC 8.85 That Allowed Consideration of Mental or Emotional Disturbance Only if it Was “Extreme.”.0......ceesccccsseeeteeesteeeens 292 C. The Court Amplified the Prosecution Case In Aggravation by Allowing Victim Impact Evidence That Overrode Emotion and Impaired the Jury’s Ability to Reach a Reasoned Moral Response Whether to Spare Appellant’s Life, and Permitting the Prosecution to Engage in Improper Argument that Demonized the Defense and Mischaracterized the Evidence Against Appellant 20.0.0... cececeseeeneeees 293 XV D. The Court Instructed the Jury With CALJIC No. 8.88 So ThatIt Weighed the Aggravating Evidence of Victim Impact and Crime Circumstances More Heavily than Mitigating Evidence.............:cccseseeee 293 E. The Record of Jury Deliberations Reveals Multiple Close Case Indicators as Well as Jury Misconduct...........cecesceeesesseesesenerneeneeeeeenenes 294 CONCLUSION oo.ceeceecccccccccsscessccssceseccsceeseeeeesnessaeseeeessscesseseesssssesseeesessseeseeeseesseeenaeenaesy 295 CERTIFICATE OF WORD COUNT.......ccccccceeceeseteeteseesrenssecasseenseensecaesseeneesseseneraeentens 296 PROOF OF SERVICE........cccccccssccccescesceeseeseeeteneeeseeesesaeeseccsessseneseseeeseeneensenseenareaneeeeeaeeneey 297 XVI TABLE OF AUTHORITIES Page(s) FEDERAL CASES Gardnerv. Florida, 430 U.S. 349 (1977) .oceccecccescceccesceeseesseeeseccsaeesecsaeeeceseseaesesceeeeeseseaeesaeesesieeeeaestsesees 274 Trvirt V. DOWG, vc cccscccessessesevsveeccccccccnnscascsencccccseceauseseceececcccececeaaausnenersceccseuueseseseceseseauaaneess 253 Addington v. Texas (1979) AAL US. 418 occcececceneesseceneeeseceesenecnnesseecaeeeeesseeeeeseeseeesaeeaessceeeaeeeeaeeeeeseseeensesaas 275 Apprendi v. New Jersey (2000) 530 U.S. 466 oo. ecccccessccesreeceseseceseecessaeecsseseeeeessneeeseeaeeeceeeeseneeusenseeeesespassim Arizona v. Fulminante (1991) 499 U.S. 279 [111 S.Ct. 1246)... ceeeeeeeeeseeseeeeeeeeeaeseeeeeeseetareeesanesaes passim Arizona v. Mauro (1987) 481 U.S. 520 ooo. ececcccccccecceeececenceceaeeecseeecaeecseseaeeecseessceeseseeesneeeenaeseseessneeseneenes 132 Ashcraft v. Tennessee (1944) 322 U.S. 143cee ccccecesccenecesneeceneeenneceeeenseecneeseeeesreeseesssneesseeeeeseeseeees 90, 91, 204 Atkins v. Virginia, SUPA, 536 USS. At P. 316eeeee ssseeceseeetetseeeseaeeeaceseeaeeesaeeeeesteteeeeereesteteees 288, 289 Barker v. Yukins (6™ Cir. 1999) 199 F.3d 867 o..ccccescescccscssesevsecseseessessscsscsesstssesstsevssessesvssesstssesatsessnesees 173 Beck v. Alabama (1980) 447 U.S. 625,637 oo... ceecceceeecscceececenneececeeseeecseseaeeeeaceeseeeecaeesaeeeeseaesenessneessneenes 220 Berger v. United States (1935) 295 U.S. 78... eccccsceeseeseesesseesseeseesceececeeesaesseeenseneeaeenaeseecesseeessesseseeseteseeees 233, 237 Berkemer v. McCarty (1984) 468 U.S. 420 oo. ceeecccccccceececeneecsseenseeceseeseaeesaeenseeseneeseeessaeesseeseseneserseeeesserseseaes 63 Blakely v. Washington (2004) 542 U.S. 296 oooececcecccececceeceeeseeceeeeeneeesseesaaeccessaeeenaeesasesseaeesseeeeseeseeessneeeaspassim Booth v. Maryland (1987) 482 U.S. 49 ooo ee ccccecscceeeceseeeceneececeeceeceaeesseseaeeecaeeesaeeseeesseeesecaeesseessneeesneeeegs 206 XVii Boydev. California (1990) 494 U.S. 370 .oceceeeece es esecesenseeeeeeescseseneneneeseseneneneseseenneneneeneenensneneys 219, 221, 226 Brown vy. Mississippi (1936) 297 U.S. 278 vecieessccceeeseesenecscsenecenseeececseneeeesetaeteeneesetsnsesseeeseasseneesesernens 70, 93 Bullington v. Missouri (1981) 451 U.S. 430ceceeee eceeceeeeneneeeeseneneeeeseseneneneseeneereenneersesessnenanananenss 273, 276 Bush vy. Gore (2000) 531 U.S. 98 .eeeceeeeesseesseecsssseseseseseeesseeesesecseensssesaseeneneesesesaseesensesereensersanetes 287 California v Brown (1987) 479 US. 538 veeceessctseseseesccseesessseneessseeesseescsenenseesesisneneseetersesseeteeceeety 229, 277 California v. Green (1970) 399 U.S. 149 ootceseseseescsssesssseseesenseseeecseenessenessensesneeereseetsesteensensersnenens 131 California v. Trombetta (1984)....ccccccccsesessseceseneeneesseeeeeteneeiereraeeneressenseseneessneesseesseans 172 Campbell v. Blodgett (9th Cir. 1993) 997 F.2d 512eeeeeceseseeecsenecseeeeseneeseeeceeseneceteseessenenensenetseaseerasnens 284 Chambers v. Mississippi (1973) 410 U.S. 284 oececsceeseecseeeenesesenecesssseenessenenenenseassiensnenereseeneneeesensanieenspassim Chapman vy. California (1967) 384 U.S. 18 voceeect scceeseneeeeeessnecnenseneeeeeceeneeesetaseeseesetssssesecprenenteeeenespassim Chapmanv. California (1967) 386 U.S. 18 Leccece scsesecesceecseeseneeneeseeneessesecseteeeeeeneciesaesaesnereesessensessengspassim Cunningham v. California (2007) 549 U.S. 270 w.eececseeseeesseseessessesesesssesssenscsecacensesenesseneneeeeenesnseteasentacneereeypassim Clewis v. Texas (1967) 386 U.S. 707 oe eeceeesssseeeeeesessesesessseseeseecseeeseensssenseertensesesersestaesensceeseteesetates 91 Colorado v. Connelly (1986) 479 U.S. 157- .eeeeeeeeeeesee eens rsesseseseesesceeseeseseeseseceesereeeeesienseeeeeeensieeeenenensenseeseatinsaey 55 Colorado v. Spring (1987) 479 U.S. 564 [107 S.Ct. 851).cceeseeeeeeeceneeneereeneeeneneeeneeneneeeseneneneaes 55, 69 XVill Conde v. Henry (2000) 198 F.3d 734 oo. eeeccecceceecseseesseeseeeseessceecsecsessecseeseseeesasessseeecesesaserssssesseeasesesesees 172 Cool v United States (1972) 409 U.S 100 woeeececcececsncesseesseeesseseececcenseseeseesseecesesseecsescseessesssessesestesess 228 Corley v. United States (2009)USeeeeeeeecececceceeeeeseeseeeseeseeseesacsecsecseeesneeeneecsseateeaseasenseeeeeseaeens 53, 111 Crane v. Kentucky (1986) 476 U.S. 683 oo eecceeseceeeeeceeseeeeseseeesceessesesseeeseenseesseesseesseseasesseseseeeessaeespassim Davis v. Alaska (1974) 415 U.S. 308occ ccccceseesesessesseesecseesseseecsseecsesecsecseseesssesseessecseceeseestsaeesteaseaees passim Donnelly v. DeChristoforo (1974) 416 US. 637 ooo ieceeccceeseceneeeseeeeseceeeseesesecseseeseseseessseseeesssessesesseeseeeeeens 178, 290 Doody v. Schriro (9" Cir. 2008) 548 F.3d 847 oecceccscccsssssssseessesseessssssuessessstesessusssuessessenesecsenesseenessees 90, 91 Edwards v.Arizona (1981) 451 U.S. 477eecccencccseeeneeseneeeeseeesessesaeesesessesesesesseesseseseeesscnseeneeespassim Estelle v. McGuire (1991) 502 U.S. 62 occcccsessessessseeeseesessecsessesecseseessecessssesesssssassecsecsecsesesseeneeaees 173, 174 Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295 ooo esccseeseeseeseeseeseeseeeseeseseseeseesecsecseesaessseseeees 189, 284 Fikes v. Alabama (1957) 352 U.S. 19] eeeececeeceneeceseeseeeeeeesseessessecseceaecssessaeessecnseesssesssessccseccaeesseceneesats 91 Ford v. Wainwright(1986) ATT U.S. 399 eccceccccccesecescesecsecsesesnecseessseeesecnsecessesessessseeesecesaeesscsasenseceesseseaeessess 220, 289 Furman v Georgia (1972) 408 U S 238 oo eeecceceseecsnessaceeeeesaeeeseeaeseecsaesesseseeeseeneesnseeasensees 229, 261, 280 Godfrey v Georgia (1980) 446 U.S. 420 oooeccccccccsneceeeeeeesseeessesseeeseeessecsesseeseecsesseessesseeesseaecseenes 230, 263 Greenwald v. Wisconsin (1967) 390 U.S, 519 occ ccccccccccssccecssseeecessecessescessecessecessececcesesessusesssreecesssesessseseareees 91 X1X Gregg v. Georgia (1976) 428 U.S. 153 veces eeesseseescseseseenecenenseeeesaeenenerscaseeseeasesseasseersnesecasenes 230,277 Haley v. Ohio (1948) 332 U.S. 596 .oececcceeersssseeececseseseesecsesneesseseeeenessessseeseresssasseseseceseseseaeneeesecys 90 Harris v. Wood (9 Cir. 1995) 64 F.3d 1432 ooo eccesseessersceeseeeenenseeeenscseseeneeaeesenesesseenenenaaeas 178, 280 Hernandez v. Ylst (9th Cir. 1991) 930 F.2d 714.eecceeseeseesseseereeeseeseeneereneenerseasseenesesseseeenensees 173, 174 Herrera v. Collins (1993) 506 U.S. 390 occ seeesesescescsetseseeeseseneseneneeeeecaeeeeteeeneraesninenseseeseetearesesseneneeeees 189 Hewitt v Helms (1980) 459 U.S. 460 oeeee eee es eecesseesseseseseeenenenenecesesseenenesesienesstatasseseeesesecssennenennens 229 Hicks v. Oklahoma (1980) 447 ULS. 343 vececseseeeeseneteneseseseseesseenesseasneneetenenssseensnetsnesesenenseeeeneaeeeneeges passim Hilton v. Guyot, 159 ULS.at p. 227 voccccccccccecceserenenesseeeteesenecscsssscsessessesenenesseneesenesieeeeeeserssnsnenseety 288, 289 Holmes v. South Carolina (2006) 547 U.S. 319 iecceeecceesceeeeseeseseneneneneeeceeeeenseneeressensesssnscaeeeeeseseeneneees 197, 198 In re Winship (1970) 397 U.S. 358 woe eeeccssseseseseeecetecseseseneeseeenseseenessenesesenesseneeessenenseneees 274, 275, 276 Irwin v. Dowd (1961) 366 U.S. 717 oeeeeeeeeescssseseeseseseseenessseseeeseseenseseteneneaseneneneeatsnsneneneenssaetess 160, 161,251 Jackson v. Denno (1964) 378 U.S. 368 oe eeseseseeeesseseseteesesesesesenenseenececesesesneeersneseenesseatesseseneeseens 70, 93, 221 Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. [18 How.] 110 [15 L.Ed. 311] occ eeeeeeeenetene ee eeseesenees esses eeeneneees 289 Johnson v. Mississippi (1988) 486 U.S. 578 oo ceecesesesctsessseseeeseeseeseseneseneneneeecesecneeeneenaeensnssenssseneensatseeeeneeneeets 281 Kansas v. Marsh (2006) 126 S.Ct. 2516 oi. eeececccssseesereeeeensesesseneneenereneseeeeasinteseerseseseneeney 257, 279, 280 KX Kelly v. California (2008) S55 U.S. ee eceecceccesceneeeseecteeeeeceseceseseecseeeeeceeeesessaeeeeeessens 208,212,214,293 Kentucky v. Stincer (1987) 482 U.S. 730 oo. cecceeescssesneceseeneenseesecaeecseecseceateceeecieerssesessseessesseseesseecestens 131 Krulewitch v. United States (1949) 336 U.S. 440 oicccccseccsecssseeeseecseesssesseeessesesseeeneecessesssesesseeeeeesenseesesssensaes 218 Leyra v. Denno (1954) 347 ULS. S56.ceceseseesetstsesenscstacseescsesassesassesseeasseseesseaeesaseneeeeseseeseees 92, 142 Lockett v. Ohio (1978) 438 U.S. 586 wo. eccceccccesccssesssecessccssesescesccessecseeeessecessesesseeerscesssensessesaseess 191, 282 Lunbery v. Hornbeak (E.D. Cal. 2008) F.Supp. cece eeceececcseeseceseeseesseeeecnseeseeseeseesaseeeseeenees 85,89,110 Lynumny. Illinois (1963) 372 U.S. 528...ec eeessecseesceseeeeescesecseseceeessesaecaecseescesseeeateasesessesseesaecaesaesesesaeeaeeaaens 70 Mach v. Stewart (9 Cir. 1998) 137 F.3d 630... ccccccccccssccssssessscesescesessecesseseeeeseeenesccessutesssssescenneeeess 163 Martin v. Waddell’s Lessee (1842) 41 U.S. [16 Pet.] 367 [10 L.Ed. 997]oeccccccccessseessecessseseeessessersserenas 288 Mathews v. United States (1988) 485 U.S. 58 coc cccccccssccssssecesssccssecesseeeesseeceseeecsssescesssessseeceseesseseerseseravessate 172 Maynard v. Cartwright (1988) 486 U.S. 356 oeceecseeseseeessseeseseeessesseeseeesseeseeseeessaecessecsesseeesaeessecseeeeseeeeseatens 263 Miller v. Fenton (1985) 474 U.S. 104occccccccssecseseeseseesesseeeesseceeseeeesesaesesesseeesseeeeeneseseea 54, 71, 132 Miller v. United States (1871) 78 U.S. [11 Wall.] 268 [20 L.Ed. 135] oo...ccc ccccseeeseesseseesereseseessenseees 288 Mills v. Maryland (1988) 486 U.S. 367eescesneceeceeceeseecseeseeeaecsecseseaesseetsesaseeeneeneeseees 278, 282, 287 Miranda v. Arizona (1966) 384 U.S. 436oceeseeeceeseeeecneseaeeaneeaeeeeeseseneceaeeesessecneeeeesesseeeeseeneespassim Xxi Missouri v. Seibert (2004) 542 U.S. 600 occ eeeeccsecsssseseseeeeeenseseenenensesseesenenssenensearessstsnenesssenicnseaenensanes 132 Mongev. California, (1998) 524 U.S. 721 voceeeeee ccs eeeteseneeseeneneeseaseeneaeeeneneeetstetsasesesessseeasaees 273, 276, 285 Myersv. Yist (9th Cir, 1990) 897 F.2d 417 occ cececccecees cesses eeeeeteneeeeeeneneeerseeeernenetsenereeeseeeseees 278, 287 Neder v. United States (1999) 527 U.S. 1 ceeeeeeeeecsessesesesesseseersesnensseeeeeeneneseensasseeneacasseeesessamussesseseesasseasenensseseeneys 172 Oregon v. Bradshaw (1983) 462 U.S. 1039 oesececcccsesesesesesesesenssenessseseeeenereeetstitesscscersneneseserenseseeeseaes 70 Orozco v. Texas (1969) 394 U.S. 324 weesescseserecseseeneseessseeneseensneeeeesastenenstessesesesesnensaseeiensenees 132 Parle v. Runnels (9Cir. 2007) 505 F.3d 922 v.esceeeessesssesessessessesseessseseesseaneeneeeseenenee 176, 177, 178, 290 Paynev. Tennessee, (1991) 501 U.S. 808 oo. eeceeeceeeeeeeeeneeseseseeteteneeenenereeentnenseseeeecntanseneesnenespassim Penry v. Lynaugh, 492 U.S. 302 coeeeceecccessessscccsccccssecsseccssecesseecsacecsenereneesesassssesaeecsseseeeeenseeeseesenseseneeenags 213 Pointer v. Texas (1965) 380 U.S. 400 oeeee eceensceceeeneneeeesesesienenenerenteasasnensnstsesesessererseeensenseneaees 132 Presnell v. Georgia (1978) 439 U.S. 14eeeses cseeeseeceeseneneneeesesseneneneneneneneriensiseessesesseseeeesenesaseneeenes 274 Pulley v. Harris (1984) 465 U.S. 37 weccecccssssesscseesceecseeeseseneneenenerasieeeeeeeentesenenesasnesseneneaes 258, 279, 280 Reck v. Pate, 367 U.S. 433 vicccccccccccccscssecesccsesceessneceseeceeecesseesssesseasesecsessaesensecseeesseceeeeaeesneeeoatenas 90, 91 Ring v. Arizona (2002) 536 U.S. 584 oe eeeeeceeecseceseesseseneeeesenensestetseeenesnersenetseinsesenennaseseseeneeregespassim Rock v. Arkansas (1987) 483 U.S. 44.eeecseeceseneeseseseseseseeeseeneeeesenenseretasesesenenenenes 105, 179, 190, 198 Xxil Ryan v. United States (D.C.Cir. 1951) 191 F.2d 779 oo ceeceeccecceseesseescenseeseeeeseeseeeeseeasesseesssessesseeessccnseessesanenate 254 Santosky v. Kramer (1982) 455 US. 743 coeccecccccssseceseeseceeeesesseeseseesecseesesecaeeceaeeeesseaeseetesesseaseess 273, 275, 276 Schneckloth v. Bustamonte (1973) 412 U.S. 218.ee ceccsccscssssenscseescseeaesseeeeseneseaesesaeeseesecaseeeesseeseeensessesesaesessesaseeens 71 Skinner v. Oklahoma (1942) 316 U.S. 535 cece ccccssccsseseeseceseesecssecesaeeceeessecsseesseseseseateessseseeesssessecseesseesaes 285 Skipper v. South Carolina (1986) 476 U.S. cece eccceeecceeesceeeceesececsecsseeenseeseeeseeessceeeesnesseesessssseseeseaeenseeessesenseeens 191 Smith v. Phillips (1982) 455 U.S. 209.eeeceseeseeseesceececseessceecseesseesetseseaeeseeacesssesessesatenseesessseetsnees passim South Carolina v. Gathers (1989) 490 U.S. 805 ooo. eccccccccsseccessecsseecesesscnseecesseseeseaeeeesseeceeeeeecssseeeeeesseeseteserseaned 206 Speiser v. Randall (1958) 357 U.S. 513 eeeececccessecsecsseeseceeceersnecseeeaeeseaeeaeeeeeseeeeseessessesaaseeeseeesseeeesseeaes 274 Stanford v. Kentucky (1989) 492 U.S. 361 oo. eececccccscesceseeeeeeseseeecnensesanessseseeecnseenseecaeesaeeseeeeseesesessesseeeeenes 288 Stawicki v. Israel (7th Cir., 1985) 778 F.2d 380 o.oo cccccccscssccsseessceseeseesesecseceseessessesesecseeeseeeeecseccsesessesnscsevens 91 Stein v. New York (1953) 346 U.S. 165 oeccccccssccsssceseeseeseeeeeseceseeseeesaeeeseecessessesecssuesseesessesenseeseueessees 91 Strickland v. Washington (1984) 466 U.S. 668.00... cecceccceseseesesesecsecsesseseescseeeateeesessesaesatseessssessesassaucaessessseeseensans 236 Stringer v. Black (1992) 503 U.S. 222 oecccsececceseesseeseesecseseesecseeeeecseeeesessseeseecnsesseeseeeesseesecsseeseseaten 284 Sullivan v Louisiana (1993) S08 U.S. 275 oc iccccscccessscesscceseesseseeeceseceesessesesueeessaesseessseesseeesssteseeessesenseneas 227 Thompson v. Keohane (1995) 516 U.S. 99 oc ecccccesecssesseseecesesseeceeeeeeeaeecnseseesnseseseessessesseeesaescsesenseseeesteniness 63 XXiil Thompson v. Oklahoma (1988) 487 U.S. 815 vecesceeceeceenenenesenenensneessseeneneeseesereranessessecssessssseneeseseseneey 288 Townsendv. Sain (1963) 372 U.S. 293 ececcescsesssessesensesseneensceneceessensnsesseeeneeeneseratesseseesssensesseneneeeeeeseey 277 Tuilaepa v. California (1994) 512 U.S. 967 ooeeecececsescseeceecteeeeneeeeeneceneneneeseseeeseenenereranersesrecsteneeesenenseeesesegy 262 United States v. Bassignani (9Cir, 2009)FBeecseeccssescssecssneecsncessveesusecsuessneccsnseessvecsssecasscessnceeeunecenseeanes 63 United States v. Booker (2005) 543 U.S. 220 woe eeecccseecsceseseseneeseseesseneesssenessseeesenenetastereeerenes 266, 268, 269,281 United States v. Craighead co" Cir. 2008) 539 F.3d 1073 oe. eeeesscsssseecnssseeesseseeseseeeeseneneesnersenererateenesaeiens 62, 63, 64 United States v. Edwards (Ch Cir. 1998) 154 F.3d 915eeeecseeeeceeesseseeseneneeseceneseeseeneseeraeeesaees 124, 125, 126 United States v. Eubanks (9th Cir. 1979) 591 F.2d 513 wo cccesccescseseeseseseeseneeneseeeeeseneeneeeeasenetsesssneseecensneess 160, 252 United States v. Gaudin (1995) 515 U.S. 506 weceeeeeeessesscestssessesessssecssesesesesueseeeensseensaeenereseeeeneensasensacensassesaseseneasass 172 United States v. Hack (1Oth Cir. 1986) 782 F.2d 862 .....c.cceccsesseesesecsesessenessseeeeeeeeceetieneensssenensnnessenensseeneessnseeseaneey 91 United States v. Hall qq" Cir. 1996) 93 F.3d 1337 oo. eecceesecsssesscseeeseeneeseseecneeneteeeeereeerenes 108, 109, 111, 200 United States v. McLernon (1984) 746 F.2d. 1098 woesceeceeseeeneeneneneneneeeneneneereneeneeerenstenerenensensesereneeeeesesey 132 United States v. Plache (9th Cir. 1990) 913 F.2d 1375 oo. ecccessesessenesesesseeeeeenesseteeeneeeeneaeneneeesnseeneneennents 160, 252 United States v. Prantil (9" Cir, 1985) 764 F.2d 548 v.ccccccsescssesceseceseeeesesesseecsstesssessnesessseansesnseeesnesesneesneeen 127 United States v. Vargas (9th Cir. 1991) 933 F.2d TOL... ceecccecsceeseseceseneneneseeeneneeseeeteerererenetenssesenesnneneneeneeseey 132 XXiV United States v. Wallace (9™ Cir. 1988) 848 F.2d 1464 ooecceccccscccseessesecsessessessssscsscscseessesevsessecsassecsessessesaveneeees 178 United States v. Wauneka (1981) 842 F.2d 1083... ccccccccccsecseesecsecseceseessssceseesessessesssecssessscsesessensesseaseasens 92, 142 United States v. Wood (1936) 299 U.S. 123 .oeccceccccccessesssecesseesseeesecssnseecseceseeeseecsaeeesseessaesseecstseecseensees 161, 253 United States v. Young (1984) 470 U.S. coe cccccccccsessseccseeeeseeeseessaeecsseeeseeessesessaeeeeeseasesensesensess 239, 240, 241 Walton v. Arizona (1990) 497 U.S. 639 oo ceccecccccsscessecsneesececeseessneecsneenaeeensesseaeeecatessneeeesesecseecsesensesssseeues 265 Withrow v. Williams (1993) 507 U.S. 680...cc cccccessessesseseessesscsseeeceeeeseesecseeeeeseesesseseseesessesessesesseenecateseesesereseses 71 Woodv. State ofAlaska (9th Cir. 1992) 957 F.2d 1544ccccccccsccesseceeseecseeesseesesseceseesseccssesesseseseessesesseeaes 131 Woodson v North Carolina (1976) 428 US 280 oo. eccccccccsesesecsscsessseeseeesnnecsssessneesseeesaueeeseensaeeenseessnees 231, 276, 282 Zant v. Stephens (1983) 462 U.S. 862 w..cecccccccscesecsecssesssesseeneeseeeseeeseeeseeesaeeesesesessaesasesseseaccaseeeessessaas 282 Zemana v Solem (D.S.D. 1977) 438 F.Supp 455, aff'd... cccscccsseessecseseesseeceessseesessseessescsesesseesetenas 228 STATE CASES Arnold v State (1976) 224 S E 2d 386.0... ce ccscccsccsssecesseeseeeenseesseeecseeeeeeesscaeseserseaeessseeeescssesesseessseeeas 230 Cargle v. State (Ok. Cr. App. 1995) 909 P.2d 806 20.0... eceeeeeeeeseeeeeeteaeeeseeeceseeesneeeseecsenesessensesssessaes 213 Geffcken v. D'Andrea (2006) 137 CalApp.4th 1298 oo.ccceessesesseeseeeeeeseeeeseaeeaeeeseeesseeessesesessssecsseeenas 106 In re Carpenter, (1995) 9 Cal.4634 ooo eeccccscssssessssesssesssessnssssssssesssssesssesessseesecssecsseesseesseesssen 161, 163, 253 XXV Inre Hamilton (1999) 20 Cal.4th 273 oo. ecccscseeeeseeseneeseeseneseseeceesnesnesteeneeneerees 162, 163, 254, 256 Inre J. Clyde K. (1987) 192 Cal.App.3d 710 wo. ccceesseeseneseseeceseeenenseesstenenereeeneesreensseesssnesensssenseneeeneeneney 70 In re Marquez (1992) 1 Cal.4th 584,605,609... cccccececeseeeteeeneeeeeeseenensetereeeesetsesenessenssseesesnenenens 179 Inre Shawn D. (1993) 20 Cal.App.4th 200 ...cccccccsssseceseeseeseesseseseneesecseeeerensnenenseessseneessnesssseeaseeeeey 70 Inre Sturm (1974) 11 Cal.3d 258ooceccceseeeetecsenenseseeseneeneeneeenestesnseaseenesseessseneneeseegs 277, 278 Irving v. State (Miss. 1978) 361 S0.2d 1360 ooo. cccceccccseeeeseeeeesecneeteeneeeeetesersenetiasseseenesseneeeresseees 179 Johnson v. State (Nev., 2002) 59 P.3d 450...eecccsceseeterecensceseneesensenenereenecseaseeeasrececseesesereneeees 267, 273 People v. Abilez (2007) 41 Cal.4472 o..ccccccscccsssecsssecsssescsneesesnececneeesseessuesssusesnecssssessecessseessseseesseeaneeeens 172 People v. Adcox (1988) 47 Cal.3d 207 on. eeecesecseesesenseecseseneseeseseenenesaseerseeresseneessnssessecsenseasieeeeeeny 261 People v. Alcala (1992) 4 Cal 4th 742occccccceseescsenssseeesensceesenestenecsenerienerscenseneneraesssseserecseeesseey 188 People v. Allen (1986) 42 Cal.3d 1222. ceeeecsceseseseeeseseeesecesensesensesessaseereneesenenenessesereensseessenenenegs 269 People v. Allen (1992) 9 Cal.App.4th 1619 oicceeccscssesseessessenenensesnenenensteneesenenssssnesesnsesenesesereeeeeeey 93 People v. Alvarez (1996) 14 Cal4? 155 oecccccsscssssecssssecssssccsseesesseeesneeeeneessureesutesneeessestssesssseessnensaneessnssenes 238 People v. Anderson (1990) 52 Cal.3d 453 ..ceccescseeseseeeecsesesseseeseseesesseneneeseseensnesseneeenarerastansneneseeeseneeeens 55 People v. Anderson (2001) 25 Cal.4™ 543 voocccccccssecsscseeccssseecssneseeseesecssnsensesessneessnetssseeessseenssseenssnnens 189, 270 XXVi People v. Aranda (1965) 63 Cal.2d 518 occ cecceessesececceeeeeecesseeceaessetsecaecsecsessaesaeceeesaeeatenseeeeseseesereeaeeeas 219 People v. Arias (1996) 13 Cal4th 92 ooccceecesesseseesceseeecseeaeeeaecaecsecseseeneceeeseeseeaesaeneseessteaeeeeesseeseees 234 People v Bacigalupo (1993) 6 Cal4th 857 oo. ceccccccccsneesceteeceneceresereeseesuecsarseeseaeesssenacessecaeesseeeeeeaeseseesaaes 259 People v. Bain (1971) 5 Cal.3d 839 ooo. eecccccccscessesesceseecssecsceseecsseceaeesaeeeeeseeeaeeseeeecreeseteeeeeaes 238, 242 People v. Bandhauer (1967) 66 Cal.2d 524 occceccceseseeseneesesceseseeeseeessesesaeseataesessecaeeeeaeersacsenesaeeaseesesseeesaesas 234 People v. Barajas (1983) 145 CalApp.3d 804 oo... ccccccceccecssecscessesesersesecsesceseaecaesaeecaessessesaeeesessesseeeeeneens 94 People v. Barraza (1979) 23 Cal.3d 675 wo.ccecccccccssesssseseeceseeeceeeescessseeeeesecsesaeersaeseseeesareseesenessetsesaeeeesssasessens 193 People v. Beagle (1972) 6 Cal.3d 441 oe cececcccccescesecsceneenceceececsrceseeeesenecaensenecseseesessateaeeseeaeeseensesseeaeeeaee 173 People v. Bell (1989) 49 Cal.3d 502 ooo ececcceccescssenseseecescseesceseseesesseeseeesaeeseceeeaeeeseecescssatesessesseeesseeaasans 233 People v. Benson (1990) 52 Cal.3d 754... ce ccccscssccessensceeeeeseesecsaeeeecsaesesecsecsenecseeseaeceesseeseeeesseasesseesaes 243 People v. Bittaker (1989) 48 Cal.3d 1046, cert. den. 496 U.S. 931 (1990)... eeeeeeeeeseeseeeseeseeseeeesseenes 262 People v. Black (2005) 35 Cal.4th 1238.0... ccccccccceccsceececeseeseeeeeneeeseeeseeaeeceaeceeeseaecesensesesenseeaees 268, 269 People v. Bolton (1979) 23 Cal.3d 208 oo. ecescesessesseeeeeesessecseeeseeeesessecsessseeeeteaesneeeeaeeatees 238, 243, 249 People v. Boyd (1985) 38 Cal.3d 765 oo. cececcscsscesscnsesesecececreeeceeceaecesesseveceeaerseseesseeeeesseeeeasnneaes 219, 284 People v. Bradford (1997) 15 Cal.4th 1229eeccccceseseeceetsecsecseeeeeceeceeeeeesecersaessesaceenesereeeeteenees 196, 200 XXVii People v. Breverman (1998) 19 Cal.4142 ...cccccccsscecsssescssescesseecesseeesssneecsssueesssesessesssnecsssneeessnecnssnsessasecesnes 172 People v Brown (1985) 40 Cal 3d 512ieeeceeesenecseseneeseneneneeeeeeeesseterereseneeesenenesseneenes 226, 229, 269 People v. Brown (1988) 46 Cal.3d 432 oo. eeecseetcssesecsserenseeeeceneesensenestensenesessenestesesaeences 179,221,267 People v. Burnick (1975) 14 Cal.3d 306...ecesecsecessseseneeseseseneseessereaseeneeesteressesesesereesesensenesssnseaees 275 People v. Cahill (1993) 5 Cal.4th 478occecceeseecsssensenecscsenenesseseessenecessenesseeteeeeresersesseeeseeesenees 71, 73 People v. Cardenas (1982) 31 Cal.3d 897 o.eecececesscsenesssssessessssssescseecensseseecessesesnenseenenenenensnessasseasseninecess 99, 193 People v. Carpenter (1997) 15 Cal.4™ 312 .cceccccsccssesssessecsesseeesescnesseesseesssseeeeseessenseeseesseaneenseneas 173, 184, 283 People v. Clark (1990) 50 Cal.3d 583... ceeeseescsseeeseeeecsesenesseseseesenetetseesecneneeseneressaseeseeenes 202, 203 People v. Cooksey (2002) 95 Cal.App.4th 1407 oo.ccccccceseeseneneseneesesteneteneeetasenenenstseesenesesseenenes 167 People v Costello (1943) 21 Cal.2d 760 0. eeececeeescessessesesssenscsesesecscsesssesseseescaeessenersessestaesetsenesseserecsees 227 People v. Cox (1991) 53 Cal.3d 618 vecesccesceseeecseeneeseeneesneeneseseseereenenssnaressenseeesesesaeeeees 189,254 People v. Daggett (1990) 225 Cal.App.3d 751 oc cecessecesssescsessescseseneeseneeesecsenerssnersssnensenetenesseneneeens 237 People v. Danks (2004) 32 Cal.4™ 269 ...ccccscccsssescssessseesssecsneecnesesneeeseesseessessneessnsesesesneeaseenses 163, 164, 283 People v. Davenport (1985) 41 Cal.3d 247occeesececsesssescsensnseassesenesseeeseseseeessiecessseecsessssssesseseeesisnanaegs 219 People v. De Larco (1983) 142 CalApp.3d 294 oieecccsscceesessseeeeeseseeesesseeneneneseeeeeeeeneneieeseneresesnagy 105, 191 XXVill People v. Demetroulias (2006) 39 Cal4th Lice ccccccccccssecsccesssceseeeecseececsecssecsaeensecseseresseesseeenaes 268, 278, 286 People v. Dickey (2005) 35 Cal.4th 884 ooo. ccccsceceseecsecteeseceesesneseetseessarecarseesaesesaecaeeeneeseseessteeseseate 268 People v. Dillon (1984) 34 Cal.3d 441 occccccccecssecseecssesseeseeesseeseceaecnseeeseceeeeneeesaessseesssesesesseeeseeees 260 People v. Duncan (1991) 53 Cal 3d 955 occcccccesceneeeteesneeeeeenecesecsatsnsseaeescerersentennensaes 223, 227, 228, 229 People v. Dyer (1988) 45 Cal.3d 26eeeccseneescesscsseeseesecsecsecsseeseesessaeeaeeseeeseesseeaeesseecsenesseeeseeees 261 People v. Edelbacher (1989) 47 Cal.3d 983 occ ecccccccecesesecseeeesesseseeseeecseceaeceeeeseeneeeeessessaeessseseseeeses 259, 282 People v. Edwards (1991) 54 Cal.3d 787 oo. ceccceccececeseeeeceseneeeeeneeseaeeeseaeeeseceeeesaaeessaeecesaeesaeeaaeseseeeeeeeespassim Peoplev. Ellis (1987) 195 Cal.App.3d 334 oeccccccseseessesssseseesceececcseeecseceeeneesenecseesesessessecsesseseesseeateasees 236 People v. Fairbank (1997) 16 Cal.4th 1223 ooo ceccceecnsecnsceeseeeseeceaeeeeesneceresiettreeateseeseees 264, 267, 277 People v. Farnam (2002) 28 Cal.4th 107 oecccccccccsccessceseeseceseeseseaeceeesaneseeeseeeesecnaesasessessesesssesesasenseeees 267 People v. Fauber (1992) 2 Cal4th 792 0... ccecccccccsccssecsseeseesseseeceaecssesenessnessaeeseeeseeesseseceescesesesseessesensecaes 277 People v. Feagley (1975) 14 Cal.3d 338oeccccsccsseeceseeeseeeseceeceseceecesessserssesstecssceaeeaeseeseseresensesseeeeseenes 275 People v. Fierro (1991) 1 Cal.4? 173 viecceccscsessessessesecsssussscssesssessessesssssessesssessessusssessessatsussessecsessecsecsers 281 People v. Filson (1994) 22 Cal.App.4th 184] oo. cccc cccccceeseesesesseceeseseceeesesseesesesesasesseesesseseeeseseeees 99, 193 People v. Garceau (1993) 6 Cal.4th 140... cceccccseecscncecseceeeeeseesseeecscensaseseseessaeersessesessaeeessececseecesseeeeas 202 XXX People v. Gay (2008) 42 Cal.4™ 1195 vecccscccccccsecssecseeesecsecseceressecsseessssssssncsssessesseasecsseaeeesseeneeense 187, 188 People v. Geier (2007) 41 Cal.4° 555,581 ..cccccccsssescssssscecseecesnesessseecsssesessusessnsessssccsssseeassseceasseessanesiaes 199 People v. Ghent (1987) 43 Cal.3d 739.ececcecccseescsesenecseteeecssnecsenenecasteneeaseeraseresseseesesensensearseneesaesens 218 People v. Giminez (1975) 14 Cal.3d 68 oo. eceeeeceeesescrerecssssesesesesseesesseseeneneneeasseneeenensenessssnecsesenesaenenesenens 196 People v. Green (1980) 27 Cal.3d 1 .eeeeececeeesecsssesessceeeessssssesvescssesscenenesessenenseeseeneneseatenenensssanerescasseneaneneasegs 235 People v. Guiuan (1998) 18 Cal.4th 558oeecssseescsenenenssececseseseneesessnenesneesnenesnsnssececesssesssnsernaseeees 172 People v. Hall (1986) 41 Cal.3d 826...ceceee rrecsesenscsseesesensneneeseaseetenererieaeneretensssasennensesisseneneegs 199 People v. Hamilton (1963) 60 Cal.2d 105oieeeseseesesessecsenscessnenseeeesseneresisesssseessssesesssnesaseenessens 179 People v. Hamilton (1989) 48 Cal.3d 1142oeceesecsessseneeseneesetenenseeeessentsassesssssesseesessssesseseneenens 282 People v. Hannon (1977) 19 Cal.3d 588oocseceesecrsceseeseneneeseeeeeeeecaseeenrsaseesnreansesensresserieeeeenseneeees 218 People v. Hardy (1992) 2 Cal.4th 86.0...ccceesee ce rsscserecsseeesseseseenseseesseenerneaeeneeetstassesesteesesiereneenees 262 People v. Hawkins (1995) 10 Cal.4™ 920 ....cccscssssecsssessssecssteessecesneesneesneesstesseessenesnessssesssssneesneessneee 188, 189 People v. Hawthorne (1992) 4 Cal.4th 43 oo eeeeceescseneescscsessesenesseseneesssessssenecesierseneneeeneressesseaeeneseees 267, 278 People v. Hayes (1999) 21 Cab.4™ 120] cocccccccccescssesssseesseesnecesneesneesstessseesseesseesssecsssessesnnensnessaaes 178, 254 People v. Hedgecock (1990) 51 Cal.3d 395 occeeesestsssesecseenenseseeesenesssenerereensassenenttes 250, 254, 255, 256 XXX People v. Hill (1967) 66 Cal.2d 536... ccccccssecesssccessscesenseceeseeeessecessseeeetseeeseaeeeenaenesecseeenensesespassim People v. Hill (1998) 17 Cal4" 800 oocecceeccsccessesccssesetssesssessesssssecstesssssessessesssssessesesensesesesseseseenpassim People v. Hillhouse (2002) 27 Cal.4th 469... eeccccscesceeneesnsceeeeseesneceeeeeesarseatesaesnenecnteeeecnesenesnsesieensaes 260 People v. Hinds (1984) 154 Cal.App.3d 222 woeccccccccsseeseesceseeeecaececeecseeseeseeeesecaesseeeesseeseneseesseeesereas 235 People v. Hines (1964) 61 Cal.2d 164...ccc ceccecenececeesceseeseeeseeseeseeeaseaeesesscesaeesenereeeteaeeseetaeeneeeaeeasents 173 People v. Hogan (1982) 31 Cal.3d 815eceecessecesecsceceeecnecesneceeseaeecseenatcnsesesesnseanectessaeecesenersieeaseseees 55 People v. Holloway (1990) 50 Cal.3d 1098oieccseeessecseeceseeseceeseecsseseteeneteneeeeeaeeneaaeees 160, 202, 252 People v. Holloway (2004) 33 Cal.4™ 96 .ccccccccccsssesssscssessvsssssessescsessresessessesetssssucsessneeresesansessessesaeeateaeeees 203 People v. Holmes (1960) 54 Cal.2d 442 oo eccecceseessetetsesecarcsseesseesscsenaeaeseeseescesesaeatseesateesseeseeateeeeeeas 235 People v. Hughes (1961) 57 Cal.2d 89 ooo eecccccccecsccsseeseesecsecaecnaeceeececseeseseessaessessesseseesseteaeseetineetaes 160, 251 People v. Jackson (1996) 13 Cal.4th 1164.cccccceseecseesseecseseaeceecseeeneeeeeseneeeeeueessaeesaeenaeeneesaeseaes 228 People v. Jimenez (1978) 21 Cal.3d 595oeceecescseecereceeeceeeseceensssaneeseeeaeseseseeessaesaaesseesaeeseteneseneeats 71, 73 People v. Johnson (1981) 121 cal.App.3d 94 oocsecsceeeseeseseesseesesecseeseeseteesesseeesecneceeeaseaeeeeeneeaeeaces 234, 241 People v. Jones (1994) 24 Cal.App.4th 1780 oo... ccccccccsssccsseecsseseecseecesssecesssecseesseeseaeeseeesesssseeeeasaeeaees 236 People v. Kelly (2008) 42 Cal.4™ 763 ...cceccccscessessesssesssecsesssessessuessssssesssessucesscsseesessuessecsusseessecsesen 208, 211 XXXi People v. Kirkes (1952) 39 Cal.2d 719 oo. eeecseseseeeesesesessecsesesceesssessneneneneceeenenesaeeenenrserieeeaeneety 234, 242, 243 People v. Ledesma (1987) 43 Cal.3d 171 eeeeeecceeceeeesescssesesesesecscsscecsensessseceeseseneesenessesetiseeseessnssenaseeseraens 236 People v. Lewis (2001) 26 Cal.4th 334oeceececenecseesssssessessssessssscsenecsecsenessessseesaeenecnasenseegs 196, 250, 254 People v. Lindberg (2008) 45 Cal.4 1 occ cccccsecsssessseesssessseeccseesstecsneeesneeeneesneessneessteesseaeessneennees 220, 221, 223 People v. Manriquez (1999) 72 Cal.App.4" 1486 ...ccscccsscsccsecccsssesssecestseesneeenesessuneesneessuteenecssstessieseoneseesieess 106 People v. Markus (1978) 82 CalApp.3d 477 eecsescsssssssessceeseeesssesssssesenenenenensesseteseenereneneesensnenssaeeaeeeney 100 People v. Marshall (1990) 50 Cal.3d 907 oe eeceeeccscescscneeseeessscseeessesesacsesesassesseesnenesaeeasienerassesersensesseeegs 281 People v. Marshall (1996) 13 Cal.4™ 799 .o..eccccccssccseessccssecsssecseeceseesnsesneeensessuessecssnsssnessetssnseasecesneessiees 200 People v. Matteson (1964) 61 Cal.2d 466 oo.cccecesceseseeeeseeeeeeceeseseaeseseneneneeneeseaeasaenererenensensseseneeenenensey 235 People v. McDonald (1984) 37 Cal.3d 351 oo. ceceeseesesssssseesesscsesssssesssssesssseesenessneeasseneneseeaneeeeneaey 105, 190, 191 People v. McKenzie (1983) 34 Cal.3d 616ceeesesecssssecscscesssssscsesssesesesecesseseessesensneeenessensssnseereseseseriseseseegs 236 People v. Mendoza Tello (1997) 15 Cal4th 264 oeececeeseesessssssssscscssssesseaeseneseseeseseeesseaseenseasiensseneesseneneneceseceees 236 People v. Meza (1987) 188 Cal.App.3d 163] occcc ccceeesecreseeneeneeeneseeeeeneneesseeeeetenenneeesey 162, 253 People v. Mickle (1991) 54 Cal.3d 140...eeecceseeecseesnecserenecsseeeseneeneeaeneseeeeseesereseetasieeseseaseenigs 202 People v. Miranda (1987) 44 Cal.30 57 ...ceececcesceseeeeseeseesesessssesecsscseeessecasesesseeesecnseseesseeseessensenesassensanesgnses 243 XXXi People v. Molina (2000) 82 Cal.App.4™ 1329 vocccccccssccsssssssssssessssessesssssessseessssessesssseesseessesssssssessueesnesssesen 193 People v. Montiel (1994) 5 Cal4th 877eeececccsccsecseeesessecneeesseensceaecenseaecsnesatsaceseseeeeeseeeseesseeesresnees 283 People v. Moore A3 Cal 2d S17occ ecccccccsccescecseeeneceeceeesaeesesseeessceseceaeseeeeaeceaeseseseeseeseeeesseennesaees 227, 228 People v. Morrison (2004) 34 Cal.4th 698 ooo. ceccscenceesccseesscesaeeeeseersneeaeserscesessaeeeseesseeseesseseaeeseeeseens 283 People v. Murtishaw (1981) 29 Cal.3d 733 oeceeecscccscccseeseesesessecseccesececeaeceseeaecseeceeecaeeseeesaeesesensessseeeseessees 173 People v. Neal (2003) 31 Cal.4"? 63 .o.ccecceccscsssesssesssesecsessssscsececesecsussssstsstsssscsessesetsasssssssseeenenen 55, 70 People v. Nesler (1997) 16 Cal.4" 561 ooccccececceccccsessecssessssecsecsevsuceessecsessussensensessessucevsucsavenceveseseveataeespassim People v. Nicolaus (1991) 54 Cal.3d 551, cert. den., 112 S. Ct. 3040 (1992) ooeeeeeeeesesteenteeeteeenees 262 People v. Ochoa (1998) 19 Cal.4th 353 ooesccceesesseseesesecssceeseeeceecaesereceaessaeeesseseesesessesseeseenaeees 221 People v. Olivas (1976) 17 Cal.3d 236oeccccescccsessccesesseeseccesecseceseceseesecsueceseseaeeseeesaeeeesnaeesseeeseeaees 285 People v. Padilla (1995) 11 Cal.4th 89occcccccccessecssesseeeeeeseeeeeseeesseeaeseseceaeesaeesasecssesssesseesseseseeeseens 189 People v. Page (1991) 2 Cal.App.415] ooecceccccssseessessesssesesssessssssnssssesssesseeseeesseseen 111, 112, 113, 114 People v. Page (2008) 44 Cal.4i LD oicceccecccccsccsscsscsecsscsscsecsucssssvcetesecsecscsussussssstssecarsecsasersansasarsassueeneees 199 People v. Panah (2005) 35 Cal.4? 395 oo cccccccccsssssesssesecscessssscsessesssssussussuessesvssessvcansussarsessecanssesersaneanens 199 People v. Peak (1944) 66 Cal App 2d 894 oooicecceseseeecesseesecerecsesereeacesseeeareecsesseeceseeseseaeeseeeseens 229 XXXII People v. Perdomo (2007) 147 Cal.App.4™ 605 vcccsccccsescssecssnecesneeesseessnneesseessueessuesssneesseesssescasneeenseeesnnsnen 55 People v. Perez (1962) 58 Cal.2d 229ieeecess csesenecssseneeseseceesseenesssenesaetenesseterasnersssesssneerensees 241 People v. Perry (2006) 38 Cal.4th 302...cscsssseseneeseseeeeseseceeseeeescesieneesenereseeteeenersaseneeees 221, 238 People v. Pitts (1990) 223 Cal.App.3d 606 oo. ccccccsscscssesesenenenenesesesecseeneeeseeaseeeeasaenessnenecseecesseenss passim People v. Pope (1979) 23 Cal.3d 412 ooeccccceesesesessesessesessenenenensssseseeeeseesnensnssesesesenerarersnensneneesastenscasens 236 People v. Pride (1992) 3 Cal.4™ 195 voccccccscsessssessssecssecsseecssecssesescesneecsseeneessatessesssnsesssessecsnsessesssieessiees 200 People v. Prieto (2003) 30 Cal.4th 226.00... eeccccescceesessessceeeeseeseeesseseeseseneenenesseaesneesanies 268, 270, 286 People v. Prince (2007) 40 Cal.4™ 1179 ceccccccccscssssssecsssesesseeseeeeeesessnsestsstsssseasssaseseesnsaseessesess 208, 210, 211 People v. Prysock (1982) 127 CalApp.3d 972 .....ccccccccesessesesenecsenecseseseeensenenecaenenereertaseneesenensesesneses 242 People v. Ramos (2004) 121 CalApp.4” 1194 .cccccccccssecsecscseesessesseeseeneensestessssnssassnesseeseesseseeneenes 114, 115 People v. Reeder (1978) 82 Cal.App.3d 543 ...ccccsecssssssesesesssessssssessseseeeseeneneneneaeneasasssssasaeaeanenssensvesens 104 People v. Riel (2000) 22 Cal.4th 1153ceeccecceeceesceeeneeeeseseseneneeensnesesaseseeneneneenenenstenseseneeneaenees 189 People v. Robinson (2005) 37 Cal.4th 592...eeecsceeceessenecseeesneeseneeseneseeeenecasteraeeaeeecsetsaserseeasensaseaes 262 People v. Rogers (2006) 39 Cal.4th 826.00...cece cceceeetsereeseeeeneeseneesseeeseneeneneseeeseneeessnetseseseecsserenseans 277 People v. Roybal (1998) 19 Cal.4481 oicccccccsssesscssseccssccesseecesnseecsnecessneesssnesssnesssseessueeessesessinsessaseseen 225 XXXIV People v. Rubalcava (1988) 200 Cal.App.3d 295 occccccsscsseesssseseescnssesseeeesesseeeseaeeseeseeesesaesseeecseeeeesseate 99, 193 People v. Samayoa (1997) 15 Cal4th 795 ooeeceesceseseesenesseeceeesseeessecseeecesersasssssaeeaeneeseeeeeesaeeesereeeens 234, 237 People v. San Nicholas (2004) 34 Cal.4™ 614 o.occcecceccsssesseessesssesseessessessesssssessseestesevsnesnen 162, 172, 221, 254 People v. Sanchez (1969) 70 Cal.2d 562 ooo cecssesceeescesseecnessesesseeecceeesenecessseesecaesseecseeeesseescsesateeeseesaseasens 70 People v. Sanchez (1995) 12 Cal.4th Loiccccccecseeseecneesescsecesesseesseseseesaecseeeseeessesseeeeeeseesseesssesseeessees 189 People v. Sandoval (1992) 4 Cal.4°7 155 .occcecescccscssessesssssteseessetsssesessssessessstesessesseeeseen 238, 239, 240, 241 People v Santana (2000) 80 Cal App 4th 1194.0ccccceccseseeeseeenecserseceeeteecresseeeseaeesessessessesssesneeesaees 227 People v. Sarazzawski (1945) 27 Cal.2d 7 once eccccscesssecsssseseeseescccseseeseseenecseesessesaesecaesseeeeesssecaesseseesseaseeeseeeseenes 173 People v. Saunders (1993) 5 Cal.4th 580 oo. cccceccesceseseeeeneceeeeseceeeceecseesceeeesseesessessensneeeeenesseseeseseesseesaesees 235 People v. Sedeno (1974) 10 Cal.3d 703ec eececccssesssceseseseseesseecsessseecseseeeceeeseescaeesessnessneseessesessesseeeenses 172 People v. Sims (1993) 5 Cal.4th 405 oo. cccceccssessesesscsessesccsessessesessessaecassecasesessessseeeesssssesecsecsesseeseeeeeats 94 People v. Smith (2007) 40 Cal.3d 483 ooo. ecccccceneceseeseeeseeseeesecseecneesseecsessaeecaeessesaeessesesesseeesssessecesseenes 55 People v. Smith (2007) 40 Cal4483 ooccececccscccsssesssessusssesseessessussavesseessessecsessavesevessnsavessessassaeeeavansesecens 70 People v. Snow (2003) 30 Cal.4th 43 oo. cccccccssccsessseseceseessessesescseessecesesaeessuessesseesseeesseseesseens 268, 286 People v. Son (2000) 79 Cal.App.4” 224 oouvccccccccssssssssssessesssesesscsessesassssssessessesssseeserssaseeseeeeateeceeen 115 XXXKV People v. Spears (1991) 228 Cal.App.3d Lo ccceescessssesssssesesesecesssseseesensseseseeeenseseensensenteeasenseesensntneseeey 91 People v. Stansbury (1995) 9 Cal.4th 824occecscssscenseseecsescseeenesserenenseeseenenecetsnesesassteeesenecens 160, 252 People v. Staten (2000) 24 Cal.4434 o..cccccccccsecccssseessssesecsneeeeretecssneesssnsessusessnessssnneessseeecsssneessneseessnsees 255 People v. Talle (1952) 111 CalApp.2d 650oiesscee cee eereneeseeseneneeeseseeeeteeesesenensenenenenas 247, 249 People v. Thomas (1977) 19 Cal.3d 630... eeecceeeecesesessseseseeseseesseseneseeeessseneneessseaenenneeneneserareseeneneseneees 275 People v. Thompson (1988) 45 Cal.3d 86...ceceese sceessesetecseneeseeseeessensensenerseseneeseeesterssssenesereceneegs 238 People v. Terry (1964) 61 Cal.2d 137ccccsenecseeneesesenecssnenestensseseeesenerenstetetseneresseeness 187, 189 People v. Underwood (1964) 61 Cal.2d 113 weeseeesssesesseseseseeesssseneeseeeeneneneeseeeeeeereneeeeisieenaneneseeeneeen 235 People v. Valencia (2008) 43 Cal.4" 268 v..ccscccsccsseccssssessssecesseeeessneseeneeseraecsantessniessssesssssessesseeessseessnsses 208 People v. Vera (1998) 15 Cal.4th 269 oocsccseeceseseeseneeseeeerenenseneesneeneeeeneneaseneessnsaeeneressersseneetess 235 People v. Wader (1993) 5 Cal.4th 610,660.00.cesses eececseneeeseeersenesesieneeeeeenerasseenersersnesseseseenenes 189 People v. Waidla (2000) 22 Cal.4™ 690 ..ecescccssccssessesssecsessnesseeceeeseesecestessesussunesesesssasesseeaseenseeses 116, 131,167 People v. Walker (1988) 47 Cal3d 605 oo. eceseseseceesesssesenereeecseseseneeenseseseneeesesseneereneenseeserseasneesnenetias 262 People v. Wheeler (1970) 22 Cal.3d 258 .o..cecesesessseeeesssesesessesessscseeneceeseenenecesesnenereeenteasesensssnensneneneesenesey 8 People v. Whitt (1990) 51 Cal.3d 620... ceececccececscsseeseneeeeseseneneeeseteeenereeeasieneneesisestenensereneeecens 184 XXXVI People v. Williams (1971) 22 Cal.App.3d 34 oo. eecceeseeeesseeeseserstecssessnecesaeeseessesseesseeseeeeerseeteatensetente 178 People v. Williams (1992) 4 Cal4th 354.0. cccccceeceseeeeeeeeeeeeeessneseessneecnseesenecseseateeesaeenteseeseas 218, 234 People v. Williams (1998) 17 Cal.4148 oocccccecccsessssesscssessessvessesssssesssessesstssssssssessesssessesseseesseeseenen 116, 131 People v. Yeoman (2003) 31 Cal.4th 93 ooo. ccccscesecsseceecesceeecaeeeaeessteseeesaceesseseeseaeseeseaeeaeseaeeseaseatenses 202 People v. Zamudio (2008) 3 Cal.4™ 327 ooecceccessesssssesssessesesssscsessseesacssessessessssessessesusssessesstesessesseeeee 208, 211 People v. Zucker (1980) 26 Cal.3d 368 oo... ceccccccesescesecsesesceeeseseseeeeaeseesseessecsecsesseeetseaeeeeasersecerteeseenseess 99, 193 State v. Bobo (Tenn. 1987) 727 S.W.2d 945 ooo. cccccccscccssceeessneeeseeeesceeeeseeeeeesnesesetesaeesseeseaeesseeeeas 281 State v. Ring (Ariz. 2003) 65 P.3d 915 ooo. eeeeccccesccescceeeceneecsaeeessceeesaeecesaeeeeessaeecaeeeteeeeereessnneesaeenas 272 State v. Whitfield (Mo. 2003)107 S.W.3d 253 oiececcscssecsssseesecseeceeeseeeeeeseensevsessessesaeseseeaeeseseeeeaetaeeaes 272 Verdin v. Superior Court (2008) 43 Cal.4% 1096 o.cecesccecsesssesccsscsssessesssssstssessessecsecsssssessssssessessnsaresstsessatesseseeens 173 Westbrook v. Milahy (1970) 2 Cal.3d 765... ceccecccsceseessesecesesecesenecseceseceeceresaeesseseaeseeseseserssaeeneeeseseeneesesenes 285 Woldt v. People (Col0.2003) 64 P.3d 256 woe ceceeesectcenccesseeeneeesesecsecsaecsaeesesseeaeeaeeecsaseaseateereeateateeres 273 CONSTITUTIONAL PROVISIONS Cal. Const., Article 1, § 7 oo... cccccccscessssseesssceeseeeeseeeessreeeeseaaeeesstaeesaes 53, 104, 115,173,191 Cal. Const., Article 1, § 15 occcccsssccssscccssceessseecesseeecsssseeesessesessanesseeseeseeeseaas 173, 191 Cal. Const., Article I, § 16 ......ccccceccccsscssccescesscnscesesssecssesneeeeseesaessaessecseesaesenesaeeeneesaes 160, 251 XXXVI Cal. Const., Article 1, § 17 ...ccccccccsccsseecnsssceeeeseeecescsessssessecssssesseeseenessesseseeneseessseeeaaens 191,203 Cal. Const., Article 1, § 28 oo... ccccccceeeeseceeeeeneernecssseesssecesssssaeessecesseeaeesaseseessrenaneeneesnars 191 U-S. Const., Amendment 5 ........cceecccecceseeeereeeeeseessetessseseecssaensnessesesseesseenseenseeanenseeenaes 68,70 U.S. Const., Amendment 6 .......ccceceecccseneeeecerneceeeerssesssatsaeessaseseeeeseessesesessseeseseneeeeneey Passim U.S. Const., Amendment 8 ........cccccccceecceercereneseneesseesssneeessesenaeeessesesseeessneesaresseeeeenegs Passim U.S. Const., Amendment 14oececeeeeseesseseseeeeseeeeseseesseessneesseeeesseeeneeseneeeneaeeespassim FEDERAL STATUTES Federal Rules of Evidence, rule 702 .........cccccccsscecceseeeesececeereseeeeseeneuerssenecsaeeeeneeeeees 108, 109 STATE STATUTES Evid. Code § 350 ........ccccsccccesceseeseeceeeeeresensceseeecesseseecsececsaseasesecseesessecsesesenseseeeneneees 131, 199 Evid. Code § 351 ...cccccccescsecceseeeeseeeesensceeecsessesessesevsecessnsaessecsseecseeseneeseseeneesenesaeeeeesneengegs 191 Evid. Code § 352 v.cccccccssecssessessesetseceseesescssesssessessenessssesecaesecnssseneeseseeeseeeeaeeereenerseeetiesasies passim Evid. Code § 1150 .....cccccccecsecesceceseeeesseceeessssesrscesesecesessessessacsseeeeessssecaesnenesasenaseaseeaeraey 163 Penal Code § 190.2 ..ccccceccescccersesecssersersssessecssessaeesaneeseeeesesseesneeseaeeniessorenesnieesneseatenpassim Pen. Code § 190.2(a)(17)iii) ....ecececeececeseeceseesetsetsscscesecnesesseaessessssseneeseeeaeeeseesecaeeneraeees 1,61 Pen. Code § 190.2(a)(1 7)(V) ...eeceeceescesseeeseessesesscsecsecseseeseeseseesessenaesaecseseeaeraeeseeasseeenerntey 1, 61 Pen. Code § 190.2(a)(1 7)(Vil) ...eeeeeessesesessesessecseseecsceeesasesenecsesssensenessaseseneenenateasenesanens 1,61 Pen. Code § 190.3 ....cccccsceccseesseseseesceseeeeesssesesecseesesessesseasesseneenessesareeseeseeseeesenaseaeeneeypassim Pen. Code § 190.4 .cccscscsescescecessesssessesessessessesseceseseeseesseessecseessecieseateneesnsesstasensasaenanens 14 Pen. Code § 190.6 ....cccscecceccseceseesesecsesesecssseseececssassseseensesaessessesessessereesscesseeeeeseeenergesas 15 Pen. Code, § 261 ...cccccccccsccccccscecsesesnscneessscsessesseessessesescssesesssesseescaecaesenesneneseeeseeenaesesas 1,61 Pen. Code § 288, subd. (b) occ cceccecescseeesssesessceecnesesenacseeesecsssaessesseseeseeeseroreaseaseaseneenesnensesy 1 XXXViil Pen. Code § 459 v.ccccccscsssssssessevsccssuecessesecesssssesssusessssecsssvesssusessssisesssecsssusessssesessiessssveeesan 1,61 Pen. Code § 664 oo...eccccccccccccccssscsessececeseccesseeessseeccsssccseessececesseeecsseecseessesensuacecesausenesseeenaes 1,61 Pen. Code § 995 ooocccccccccccssccsssscesseceesseccsssecessseceesseecessseessesaaeecsseecesseccesseccessstssausaseveness 3,58 Pen. Code § 1181 occ cececccccccccssecsseceeeeeeeseseeecseeseeeeeaeseaeeseresseseaeeceessesseeesseesseeesees 162, 253 Pen. Code § 1118.0 cece cceecccsecssesseeeseceesseesaeceseeseeceseesseeeeeeceesaseesscsaecsseesseesssecestersesseens 8 Pen, Code § 1259... cccccescessessessessessessesessessessesseesscseecesesecssssessesesesseeeessuceasssaseraesecsusasenes 235 Pen. Code § 1538.5 vo cccccccccscccsssseccesseeessecensseecessscesessseeecesaeeceseeeeecsssecssesesssstsesucsuseneeeesens 5 COURT RULES California Rules of Court, rule 4.42.00... ccccccccccccccccuceccccecuecuusescesereceuaneeeuauauaeneneas 286 California Rules of Court, rule 5-120 oo... leececccccccccccceececcessssescssesssseeessssesesensteneeesenseeenees 8 California Rules of Court, rule 34(a) .0......eccceecccesceseeceeecececceceseeesseeeessesaeeceateeseeesseesseeees 15 JURY INSTRUCTIONS CALJIC No. 2.70 wieceececccseccssseceeesnceeesceeeeceaeeesaeesacenaeeeseaeeesaeesseteeisessaeeeseeeneseecseneesaeespassim CALIIC No. 8.85 oe eeccecsecsescesseeseesneesecseesaceseeescevseseseecearessaeseeesseessaesesenstenseessesesaeeneenspassim CALIIC No. 8 88 occeecsseesceseeesseserscntensesaresanessesesteserersaeeeareeaeceaeeeeeesssteseseesseeeseenspassim CALJIC No. 2.70... ceeccsscecsseecceeeeecseesessessecseeesesesseeaeeeseesceesessecseseeessessessesaeseaeeatseeeeuens passim REGULATIONS California Code of Regulations, § 2280 et Seq. ........cccccessccesseeeteeesseeseseesteceeseeessserseeesetees 278 XXXIX OTHER AUTHORITIES 1978 Voter’s Pamphlet, “Arguments in Favor of Proposition 7.” ........:.:ssseeseee259 Amnesty International, “The Death Penalty: List of Abolitionist and Retentionist Countries” (NOV. 24, 2006)... cccccceseseseeseesseenenseeneeenecteeenesenererenaeeaes 288 Drizin & Leo, “The Problem of False Confessions in the Post-DNA World,” 82 N.C.L. Rev. 891 (2004)... ee ceccceeccecneeeeeseeneeneeseeneeseeseeteeeneesnessaeeasens 53,111 Haney,etal., “Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death” (1994) 50 (no. 2) J. of Social Issues, 149, 167-168 .....:.cccccceesccescccesteseseceessseseeceeeseseeessaesssnesenareseeaeenseeetnesensgs 220 Haney & Lynch, “Comprehending Life and Death Matters: A Preliminary Study Of California's Capital Penalty Instructions” (1994) 18 Law & Human Behavior 411, 423-424, 428-429 oo... cecccescceccesetssessseeseseeneseneeenesenseesseeeeeeneeens 219 Kozinski and Gallagher, “Death: The Ultimate Run-On Sentence,” 46 Case W. Res. L.Rev. 1, 30 (1995) .o.ceccescecescsescsesenscesssseseneseaeeeesesecnesneseeseeeneeenseaseaeneserensenes 289 Ofshe and Leo, “The Decision to Confess Falsely: Rational Choice and Irrational Action,” Denver University Law Rev., NOV. 1997 .....scccsccsseeseeteeeee 106, 182 “Soering v. United Kingdom: Whether the Continued Use of the Death Penalty in the United States Contradicts International Thinking” (1990), 16 Crim. And Civ. Confinement 339, 366 .....ccccccscccccsstesseseeteeteteectecnneneereenseneeneeneenety 287 Stevenson, “The Ultimate Authority on the Ultimate Punishment: The Requisite Role of the Jury in Capital Sentencing” (2003), 54 Ala L. Rev. LO91, 1126-1127 oo.cccccccccccceeceeseeeceeeeresesseeeeeseesassessesseeseeeeesnseseesaesearaeeensateneeeragey 272-273 Webster’s Unabridged Dictionary (2d Ed 1966) .........cccccseseereeseeeeeecresetenernestenteeeeeseenees 231 WWW.AIMMEStY.OFG oo. eeceececseeerecssesseeeecscesseseeenseaeessaeseessesneessceaeenecessensaensensetenesseeneaessensenseenes 288 xl IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. DANIEL ANDREW LINTON, Defendant and Appellant. No. CR 60158 (Riverside County) California Supreme Court No. S080054 STATEMENT OF THE CASE I. INFORMATION AND NOTICE OF INTENTION TO SEEK CAPITAL PUNISHMENT On June 13, 1995, the Riverside County District Attorney’s Office filed a four-count felony information, charging appellant Daniel Andrew Linton as follows: CountI Murder while engagedin the commission or attempted commissionoffirst degree burglary (Pen. Code, §§ 190.2(a)(17)(vi1), 459); Rape (Pen. Code, §§ 190.2(a)(17)(11), 261(2)); and Lewd Act by Force with a Child (Pen. Code, §§ 190.2(a)(17)(v); 288(b)). CountII First Degree Burglary (Pen. Code, § 459) CountIII Attempted Rape (Pen. Code, §§ 261, 664) Count IV Lewdact by Force with a Child (Pen.Code, § 288(b). (1CT 20-22) The District Attorney filed a Notice of People’s Intention to Seek Capital Punishment. (1CT 23) Il. REPRESENTATION AND ARRAIGNMENT Appellant was represented by the Riverside County Public Defender’s Office at all proceedings. On June 14, 1995, he was advised of and waived his constitutional rights, was arraigned, waived formal arraignment, and pled not guilty to all charges. (ICT 29) Appellant stated on the record that the public defender, Robert Ebert, was not his attorney. The court asked if appellant had been advised of his legal and constitutional rights, and Mr. Ebert stated that appellant would notspeak to him. (1CT 29; IRT 49-52) The court ordered filed a letter from appellant’s father. The letter accused the public defender of attempting to prevent contact between appellant andhis father, cause appellant to forego his constitutional rights, and “place himself at the mercy of a court, county andstate that has showna prejudice against him and seems bent on harming my son without lawful due process.” (1CT 26-27, 29) On July 14, 1995, appellant appeared and repeated that Mr. Ebert was not his attorney. (ICT 55) On July 21, 1995, appellant appeared and stated that Mr. Ebert wasnothis counsel. The court told him to be seated. Appellant did not want to bring a Marsden motion but asked that a different attorney be appointed to represent him. The Court denied that request. (1CT 44; 1RT 56-62) On August 10, 1995, appellant filed a documententitled, “Judicial Notice / Objection” and stating that he was without counsel, without having waived his rights thereto. (1CT 45-46) On September 5, 1995, appellant appeared. Hestill was not speaking to Mr. Ebert. Hefiled a documententitled “Constructive Notice” and stating that he felt someofhis rights had been violated. (1CT 50, 51-53; 1RT 64-66) On April 19, 1996, Deputy Public Defender Gail Cronyn appeared as assistant counsel to Mr. Ebert. (1CT 77; IRT 85-86) HI. PRELIMINARY HEARING AND PENAL CODE SECTION 995 MOTION On May28, 1997, the trial court heard and denied the defense motionto set aside the special allegations charged in the information, pursuant to Penal Code section 995. (1CT 80-96 [Def. Mot.], 1CT 109-118 [Def. Reply], 1CT 247-270 [Pro§ Opp.], 1CT 125-126 [Min. Order]; 1RT 104-114) IV. PRETRIAL LAW AND MOTION A. Motion to Suppress Defendant’s Statements On February 27, 1998, the trial court heard the defense motion to suppress appellant’s statements. After hearing the testimony of Craig Rath, Ph.D. and Detective Glenn Stotz, the court decided that the matter should instead be heard as a pretrial in limine motion and postponed the hearing. (ICT 198; 1CT 162-177, 189-192 [Def. Mot.]; 2CT 498-504 [Def. Supp. Pts and Auth.]; 3CT 811-820 [Def. Reply]; 2CT 450-453 [Prosec. Resp.]; 3CT 773-779 [Prosec Opp.]; 2RT 137-190; Def. Exhs. A [tape], B [Miranda form], and C [transcript, 1 page], all made part of the record at 2RT 173-175) On October 27 and 28, and November2 and 3, 1998, the court resumed the hearing, and heard the testimony of Detective Stotz, Deputy District Attorney John Chessell, Dr. Rath, Michael Lynn, and Frederick Rodriquez. (3CT 825-831; 5RT532-1198; Def. Exhs K [audio tape Rodriquez], L [transcript of San Jacinto interview, at 4CT 835-884]; Peo. Exhs. 1 (two audio tapes of 11/30/98 interview), 2 (two audio tapes of Dr. Rath interview], 3 [transcript of 11/30/98 interview,all marked and admitted into evidence, at 3CT 833; 9RT 1199-1205) On November 9, 1998, the court heard argument and denied the motion. (SCT 887; ORT 1214-10RT 1343; see 4CT 908-912 [Mot. for Reconsideration].) B. Motion to Sever Counts On June 19, 1998, the trial court heard the defense motion to sever counts. (ICT 290-2CT 298 [Def. Mot.], 2CT 321-329 [Prosec. Opp.]; 2CT 363; 2RT 211- 216.) The court took the matter under submission and said it would issue a written ruling. (2RT 218) The court in its minute order ruled, “The counts are properly joined and that continued joinder will not deprive the defendant of his constitutional right to due process and fair trial. [para.] Motion denied.” (2CT 363.) OF Motion to Suppress Defendant’s Statements to His Mother While in Jail On June 19, 1998, the trial court heard and denied a defense motion to suppress statements between appellant and his parents, while he wasin jail. The court found no due process violation and denied the motion. (2CT 299-304 [Def. Mot.], 2CT 311-313 [Prosec. Opp]; 2CT 367; 2RT 219-221) D. Motion to Call Prosecuting Attorney as a Witness (Recusal) On June 19, 1998, the trial court heard a defense motion to call the prosecuting attorney at a witness. The court held the motion in abeyance until trial. (ICT 214-225 [Def. Mot.], 3CT 305-310 [Prosec. Opp.]; 3CT 345-362 [Def. Reply]; 3CT 408-411 [Def. Reply]; 3CT 365; 2RT 221-223.) On August 17, 1998, the court heard the motion to recuse prosecuting attorney William Mitchell. (2CT 423; 3RT 252-254) The court heard the testimony of Mitchell (3RT 255-330), argument (3RT 331-347), and the taped interview (3RT 348-349; Def. Exh. C [tape], B [11/29/94 transcript, at 3RT 425- 446].) The court took the matter under submission. (2CT 423; 3RT 348-349.) On August 19, 1998, the court denied the motion. (2CT 447-448.) On October 1, 1998, the Court of Appeal, Fourth District Division Two, denied the defense petition for writ of mandate/prohibition in case number E023346. (3CT 797; see 4RT 472-483; SCT "Writ of Mandate".) E Motion to Suppress Items Seized from Defendant’s Room On June 26, 1998,the trial court heard the defense motion to suppress items seized, pursuant to Penal Code section 1538.5. The court took the matter under submission (1CT 270-281 [Def. Mot. to Quash Warrant], 2CT 330-333 [Pro§ Opp.]; 2CT 454-458 [Def. Mot. to Exclude Underpants]; 2CT 459-463 [Def. Mot. to Exclude Literary Evidence]; 2CT 369-373 [Def. Reply]; 2CT 375; 2RT 228- 234.) On December 4, 1998, the court heard and granted the prosecution’s request that it deny the defense motion to suppress physical evidence taken pursuant to the search warrant. (4CT 889; 11RT 1350-1351) F. Motion to Exclude Evidence Based on Tampering With Interview Tape On August 25, 1998, the trial court heard the defense motion, heard testimony of defense expert Fausto Poza and district attorney investigator Lodric Clark, argument, and took the matter under submission. (1CT 282-289 [Def. Mot.], 2CT 465; 3RT 357-430; Def. Exh. G-M, 2CT 467-476.) The court found “no credible evidence of police or district attorney misconductor gross negligence in providing to defense counsel the detective copy of the tape recording of the initial questioning of the defendant by Detective Stotz and Deputy District Attorney William Mitchell” and denied the motion. (2CT 466.) G. Motion to Suppress Defendant’s Statement to Dr. Rath Based on the Psychotherapist / Patient Privilege. On December4, 1998 and January 22, 1999, the trial court heard argument on this motion. (2CT 299-304 [Def. Mot.]; 3CT 784-795 [Def. Pts and Auth.]; ACT[ Prosec. Opp.]; 4CT 889; 11RT 1356-1358.) On January 22, 1999, the court heard additional argument and denied the motion. (4CT 1039; 11RT 1424-1434.) H. Motion to Estop or Otherwise Preclude the People from Charging Special Circumstances On December4, 1998 and January 22, 1999, the trial court heard argument on this motion. (4CT 1035-1037 [Prosec. Opp.]; 4CT 889; 11RT 1358-1359.) On January 22, 1999, the court denied a defense request to call Deputy District Attorney Mitchell and denied the motion. (4CT 1038; 11RT 1395-1423.) 1. Motion to Exclude Defendant’s Statements Regarding Counts IT, HI, and IV On December4, 1998, the trial court heard and denied this motion. (4CT 899-907 [Def. Mot. re Conduct Two Weeks before 11/29/94]; 4CT 889; 1IRT 1359-1363; renewed and denied at 16RT 2427-2433.) V. GUILT PHASE Appellant was tried as to the guilt phase in a 28-day jury trial. Thetrial began on January 25 and concluded on March 15, 1999,as follows: A. Voir Dire Voir Dire was conducted on January 25 (4CT 1061; 12RT 1482-1584), January 26 (7CT 1862; 12RT 1585-1721), January 29 (12CT 3267; 13RT 1722- 1723), February 1 (12CT 3268; 13RT 1807-1824), February 2 (12CT 3269; 14RT 1825-2071, February 3 (12CT 3273; 15RT 2072-2302), and February 8, 1999. (12CT 3281, 3283; 16RT 2341-2387, 2390-2405) On January 25, the trial court heard and denied a defense motion objecting to the voir dire of groups of 30 prospective jurors per day, instead of two groups of 24 per day. The defense objected under the Fifth and Sixth Amendments. (4CT 1061; 12RT 1473-1481.) On February 2, the defense moved for the entire first panel of jurors to be excused. The court ruled that the defense could question jurors how they would judge the district attorney’s credibility, but only in generic terms. The defense objected and stated that its inability to question jurors about the district attorney’s role as a witness in this case deprived appellant of his Fifth, Sixth, Eighth and Fourteenth Amendment Rights. (12CT 3269; 14RT 1825-1830.) On February3, the district attorney objected to the fact that the defense was suggesting to prospective jurors that appellant’s appropriate punishment during the penalty phase should be determined byfitting his crime in a hierarchy compared with other special circumstance murders. The court admonished the defense not to suggest that the jury would be comparing appellant with other persons who have been convicted of the same or similar offenses. The defense objected and stated that its inability to voir dire on this issue deprived appellant of his Fifth, Sixth, Eighth and Fourteenth Amendmentrights. (12CT 3272; ISRT 2072-2083.) The district attorney commented that jury instructions are based on commonsense, the defense objected, and the court overruled the objection. The defense stated that the district attorney’s comment violated appellant’s Fifth and Fourteenth Amendment rights to due process, and was designed to directly mislead the jury. The defense further objected to the fact that the court did not ask that morning’s group of jurors if they could vote for death, but did tell them they should be neutral. The defense argued that the court’s comments could convince those jurors that they were to remain neutral and consider all possibilities but prevented them from being candid about what they would do in this case. (12CT 3272; ISRT 2182-2184.) The defense requested further voir dire as to all four groups of prospective jurors that day, based onthe fact that it had not had the opportunity to intelligently exercise challenges for cause. The court denied the request. (12CT 3272; 15RT 2295-2302.) On February 8, the defense made a motion to dismiss the entire jury panel based on prejudicial pretrial publicity and requested a change of venue. The defense stated that the district attorney had been quoted in two different newspapers, in violation of the rules of professional conduct in the California Rules of Court, rule 5-120. The district attorney stated that the quotes were accurate and not a violation of his canon of ethics. The court ruled that it would question potential jurors and excuse them if necessary. (12CT 3281; 16RT 2303- 2319.) The court excused two prospective jurors whoread portionsofthearticle. (16RT 2354-2374.) The court asked the remaining jurors if they saw the article; 13 jurors raised their hands andall stated that they did not read it. (16RT 2375- 2378.) The defense moved for a new jury panel based on People v. Wheeler (1970) 22 Cal.3d 258. The court denied the motion, noting that of the 12 jurors presently seated, four were black. (16RT 2388-2390.) Twelve jurors and two alternates were sworn. (12CT 3283; 16RT 2390- 2397.) The jury was admonished notto read any articles about the case. (16RT 2401-2405) B. Prosecution and Defense Cases The prosecution presented its case-in-chief on February 9, 10, 11, 16, 17 and 18, 1999. (12CT 3283, 3370, 3373, 3376, 3377, 3379; 17RT 2505-22RT 3293.) The defense motion for judgment of acquittal (Pen. Code, § 1118.1) was deemed made and wasto be arguedat a later date. (22RT 3293) The defense presented its case on February 18, 19, 22, 23, 24, and 25, and March | and 2, 1999, (12CT 3379-3382, 3384, 3386, 3387, 3432, 3434; 22RT 3294-27RT 4191.) The prosecution presented rebuttal on March 2. (12CT 3434; 28RT 4216- 4227.) Both parties rested. (12CT 3434; 28RT 4228-4229.) The court heard and denied the defense motion for judgment of acquittal. (12CT 3435; 28RT 4251- 4262.) C. Renewed Motions and Objections On March 2, 1999, the court heard and denied a renewed defense corpus delicti motion that Linda Middleton testified that Melissa experienced a nightmare. The court ruled that something beyond a nightmare occurred. (12CT 3435; 28RT 4262-4263.) The court heard and denied a defense motion to cross-examine Dr. Rath regarding his adherence to the American Psychological Association guidelines for interviewing in-custody suspects. (12CT 3435; 28RT 4263-4266.) The court heard and denied a defense motion to cross-examine district attorney Chessell regarding his motive, bias and interest in conducting appellant’s interrogation. (12CT 3435; 28RT 4266-4272.) D. Instruction Settlement The court and counsel argued andsettled jury instructions on March2,3, 4, and 8, 1999. (12CT 3435-3438; 28RT 4273-30RT 4554.) E. Closing Argumentand Instructions On March 8 and 9, 1999, the court preinstructed the jury. (12CT 3438; 30RT 4554-4585) The prosecution presented its closing argument. (12CT 3438- 3439; 30RT 4586-4640.) The defense presented its closing argument. (12CT 3439; 30RT 4641-4718.) The prosecution presented its rebuttal argument. (12CT 3439; 30RT 4718-4774) The court furtherinstructed the jury. (12CT 3439; 30RT 4774-4786) F. Deliberations On March 9, 1999, at 12:35 p.m., the bailiff was sworn and the juryretired to deliberate. (12CT 3439; 30RT 4774-4786.) The jury continued its deliberations on March 11, from 8:42 a.m. to 2:33 p.m. The jury submitted three notes. (12CT 3440; 31RT 4791-4843) In the second note, the jury asked when a waiver of Miranda rights takes place. The court responded over defense objection that “a Miranda waiveris effective when a subject orally agrees to speak with investigators after his rights are read to him. There is no requirement that a Miranda waiver be documentedin a written form, signed by the person being questioned.” (31RT 4803-4815.) The defense objected that this answer deprived appellantof his Fifth, Sixth, Eighth and Fourteenth Amendmentrights. (31RT 4803-4815.) In the third note, the foreman reported that one of the jurors had admitted discussing a specific aspect of the case with her husband. Juror #1 said to her husband that if someone she knew came into her house, she would not automatically scream. The other jurors did not discuss this further. (12CT 3440; 31RT 4816-4823.) The court asked Juror #1 if the fact that she had been called in would affect her ability to be a fair and impartial juror, and she said no. The court admonished her not to discuss the case with anyone. (31RT 4828- 4836.) The defense objected and asked that Juror #1 be excused. (31RT 4836-4842) The court denied the defense request, commenting, “It’s certainly ... at the edge of propriety. And I think I’ve admonished her again notto do it any further. But I don’t think she’s gone over the edge. And so I think to — to excuse heratthis point would not be appropriate or necessary.” (31RT 4843.) The other jurors were not questioned. 10 The jury continued its deliberations on March 15, 1999, from 9:00 a.m. to 3:13 p.m. (12CT 3441; 31RT 4844-4885.) The jury submitted two additional notes. The first note asked: “1, Is it too far to speculate whether Melissa let Daniel into the house? 2. Please clarify if speculation can be used in determining innocencein this case? 3. Whatis the definition of speculation? 4, A jurorbelieves the entire interview is a lie and is interjecting speculation. Where do we go from here?” (31RT 4844) The second note asked: “1. Whatis the definition of ‘cross-admissibility’? 2. Is it, cross-admissibility, applicable both ways, 10/1/94 for 11/29/94 and 11/29/94 for 10/1/94?” (31RT 4972) While the parties were arguing as to how to respond to these concerns, the jury reached a verdict. (See 31RT 4844-4879) G. Verdict The jury found appellant guilty as charged on all counts and found all special allegations to be true. (12CT 3441-3442 [Minute Order]; 13CT 3589-3604 [Verdict]; 31RT 4885-4889.) The jury was polled. (31RT 4889-4898.) 11 VI. PENALTY PHASE A. Law and Motion On March 16, 1999, the trial court heard and denied a defense motion to call Dr. Leo in the penalty phase. (13CT 3617; 31RT 4902-4914) The court heard and granted a defense motionto call Dr. Whiting, but with the samelimitations as in the guilt phase: Dr. Whiting was not to testify as to what he was told by appellant or appellant’s relatives, but only as to what was in the record. (13CT 3617; 28RT 4914-4922.) The court heard and denied a defense motion to call district attorney Mitchell as a witness, to testify relative to factor (k) and the idea of “lingering doubt.” (13CT 3617; 28RT 4923-3926) The prosecution refused a defense stipulation that appellant had no prior criminal record, because his record or lack of record already was in evidence. (13CT 3617; 31RT 4926-4929) The defense submitted a declaration from Candyce Mills, who observed outbursts from Mr. and Mrs. Middleton during the trial; the court ordered the declaration filed over prosecution objection. (13CT 3617; 31RT 4954-4961) B. Prosecution and Defense Cases The prosecution presented its case-in-chief on March 17, 1999. (13CT 3618; 32RT 4966-5015.) The defense presented its case on March 18, 23 and 24, 1999. (13CT 3647-3651; 33RT 5096-5253; 34RT 5254-5416; 35RT 5417-5503) The parties rested. (5RT 5502-5503) Cc. Instruction Settlement The court and counsel argued andsettled jury instructions on March 16 (13CT 3617; 31RT 4931-4954) and March 17, 1999. (13CT 3618; 32RT 5018- 5066; see Peo. Memorandum at 13CT 3620-3644 and Defense Memorandum at 13CT 3644-3646.) 12 D. Closing ArgumentandInstructions On March 24, 1999, the prosecution presented its closing argument. (13CT 3651; 35RT 5528-5567.) On March 24 and 25, the defense presented its closing argument. (13CT 3651; 35RT 5559-36RT 5598.) The prosecution presented its final closing argument. (13CT 3662; 36RT 5598-5622.) The defense presentedits final closing argument. (13CT 3662; 36RT 5623-5679.) The court instructed the jury. (13CT 3651, 3662; 35RT 5524-5528; 36RT 5648) E. Deliberations and Verdict On March 25, 1999, at 2:00 p.m., the jury retired to commence deliberations. (13CT 3662.) The jury continued its deliberations on March 29, 1999, from 9:15 a.m. to 3:11 p.m. (13CT 3664.) At that time, the jury sent the court a note that they were unable to reach a verdict. The court sent a note back stating, “Due to the length of these proceedings and the complex issues and the fact that you have been deliberating only one day, the Court requests that you continue your deliberations.” (13CT 3664; 36RT 5688-5696.) The jury continued its deliberations on March 30, 1999, from 9:00 a.m.to 10:52 am. (13CT 3664.) The jury announced that it had reached a verdict on penalty. (36RT 5699-5700) At the same time, the court received a note from the jury stating, “I, Juror No. 9, received at my e-mail address two e-mails from individuals on the jury regarding the conduct of other jurors. One juror was upset at another for saying they did not have compassion. One juror was upset at another for saying they were having too much fun in the deliberation room and not taking the case seriously. Is this appropriate? Is this a problem?” (13CT 3664; 36RT 5697- 5698.) The prosecution suggested that the court tell the foreperson to inform the other jurors that individual contact is not proper and that issues have to be brought up in the presence of all 12 jurors. The defense stated that the jurors were not 13 following the court’s admonition and should be identified and spoken to individually. (36RT 5697-5698) The court questioned Juror No. 9, who confirmed that both emails were sent to him without copies to others. Both statements were made in the deliberations room, in front ofall the jurors, and the emails were deleted. (36RT 5700-5705) The defense argued that the jurors who sent the emails should be identified and that other jurors might be sending emails to each other. The prosecution argued that there was no evidence of misconduct. The court found that there was no juror misconduct at this point, the discussion was within the context of jury deliberations, and some jurors were “venting” not discussing the case. (36RT 5706-5707) The jury reached a verdict andfixed the penalty at death on count 1. 13CT 3677 [Minute Order]; 13CT 3670 [Verdict]; 36RT 5711-5717.) The jury was polled, thanked and discharged. (36RT 5711-5717.) VII. POST TRIAL MOTIONS FOR NEW TRIAL AND TO MODIFY VERDICT On June 17, 1999, the trial court heard and denied a defense motion for new trial. (14CT 3746-3769 [Def. Mot. for New Trial]; 14CT 3770; 37RT 5736-5799) The court heard and denied a defense motion to modify the verdict, pursuant to Penal Code section 190.4. (14CT 3736-3745 [Def. Pts and Auth. In Support of Mot. to Reduce Penalty]; 13CT 3685-3689 [Pro§ Opp.]; 14CT 3772; 37RT 5781- 5789.) VII. SENTENCING Thetrial court denied probation and sentenced appellant as follows: Count 1 Death Count 2 Middle term 4 years concurrent Count3 Low term 1 year, 6 months, stayed 14 Count 4 Middle term (Principal) 6 years The court credited appellant with 2,491 days of presentence custody. (14CT 3790 [Minute Order]; 14CT 3795-3797 [Abstract]; 37RT 5793-5799) IX. APPEAL Appellant’s conviction and sentence were automatically appealed to the California Supreme Court pursuant to Penal Code section 190.6 and California Rules of Court, rule 34(a). 15 STATEMENT OF FACTS I. GUILT PHASE A. PROSECUTION CASE 1. Background In 1994, Linda and Robert Middleton lived in a two-story home at 364 Oleander Street in San Jacinto, in Riverside County, with their daughter Melissa, age 12, and son Brian, age 19. Carl and Jean Linton lived next door with their two children, appellant Daniel Linton, age 20, and Stacey, age 8. Melissa and Stacey were close friends, like sisters, and spent a lot of time at each other’s houses.! Appellant tended to play with younger children, ages 12 and 13. Brian, the Middleton’s son, had friends his own age and did not socialize with appellant. (17RT 2526-2529, 2534-2536, 2570-2571) Melissa was 58” tall and weighed 136 pounds. (18RT 2657-2683, 2706-2709) In April 1994, the Middletons went on vacation. Linda gave appellant a house key, so that he would take care of the Middletons’ lizards while they were away. After they returned, Linda tried to get the keys back from appellant a couple oftimes, but he was not home. Eventually, Linda paid appellant for taking care of the lizards but forgot he had the key. She never noticed anything missing from her home during the time appellant had the key. (17RT 2572-2573, 2595- 2600) 2. Prior Incident: Late September - Early October 1994 One night in late September or early October 1994, at approximately 2:30 a.m., appellant was in Melissa’s upstairs bedroom. She woke up andstarted to scream. He thought about raping her but decided not to do so. He commented,“I ‘Linda Middletontestified that Melissa had enough underwearthatif she left a pair at the Linton’s house, Linda would notnotice it right away. (17RT 2570- 2571) 16 grabbed her by the throat and while she gasping for breath I tried to leave.” (22CT 3301, 3311, 3313, 3362-3369) Melissa ran into her parents’ bedroom and woke them up. She was loud and upset and said, “Mommy, Mommy, why didn’t you come in? I was screaming for you.” Melissa said that someone had been in her room, was on top of her, and was choking her. Robert got dressed and went downstairs, while Linda comforted Melissa. Melissa spent the rest of the night in her parents’ room. She denied it was a nightmare. She could only describe her assailant as male and nude. Linda did not see any marks on Melissa’s neck. Linda and Robert discussed the incident and concluded Melissa must have had a nightmare, because nothing was out of place in the house and she went right back to sleep afterwards. (17RT 2564-2565, 2574-2476, 2577-2578, 2587-2588) Robert checked outside. He saw Joseph Montero through the window,in the Linton’s computer room, in the front of the house. Montero was a friend of appellant and lived with the Lintons for a month in the fall of 1994. Robert told Montero that Melissa said someone had been in her room and asked if Montero had seen anyone. Montero said he had not. Appellant had not been in the house for 15 to 90 minutes. (17RT 2592-2594, 3122-3126.) He returned about 20 minutes later, after Robert left. Appellant looked scared and out of breath. (21RT 3127-3133, 3153-3154.)° * The portionsof the facts from appellant’s perspective are taken from his November30, 1994 police interrogation, which is discussed in more detail later in the Statement of facts and in Argument, post. * Montero, age 23, had been thrownout by his mother for drug use. (21RT 3159- 3160.) Appellant and Montero had been using methamphetamineall day, and they did so nearly every day. They also smoked marijuana sometimes. While Montero wasliving at the Linton’s, he looked in the master bedroom and found Penthouse magazines, a book aboutincest, and a magazine with pictures of naked 16-year- old girls. (21RT 3127-3133, 3153-3154.) Montero stole marijuana from the Lintons, and eventually they asked him to leave. He went backto live with his mother. (21RT 3159-3160.) 17 3. Events of November 29 and 30, 1994 On the morning of November 29, 1994, Melissa wasill with a cold or the flu and said she did not want to go to school that day. Linda told Melissa to stay in bed, sleep and take her medicine. Melissa had stayed homealoneseveral times that year and was comfortable staying home alone. Linda left for work at 7:30 a.m. and lockedthe front door, but she did not secure the deadbolt. Robert had left earlier. (17RT 2539-2545) a. Strangling of Melissa Middleton Between 10:00 and 11:00 am., appellant walked next door to the Middleton’s house, to look for money. Hestill had a key to the house from taking care of the Middletons’ pets. He did not know that Melissa would be home. He walked upstairs and saw Melissa. She ran to her parents’ room,started screaming and said she was goingto call the police. He pushed her down onthe bedso that she could not reach the phone. He grabbed her by the throat and did notrealize how far it had gone until it was too late. (12CT 3317-3318, 3288-3291, 3320, 3359) He thought Melissa screamed and wasafraid of him becauseofthe earlier incident. (12CT 3291-3292) Appellant started choking Melissa with his hands. He did not meanto kill her. “I only meantfor herto fall unconscious. I didn’t know that it would go that far.” She was struggling and breathing and let out a small yelp. He grabbed the cord of some stereo headphones, on the nightstand, and wrapped it around her neck. He wasin front of her the whole time. The cord broke so he used his hands again. She wasstill fighting. (12CT 3293-3297) He never hit her. (12CT 3301) Appellant thought about having sex with Melissa butdid notto try to doso. He just wanted to scare her. He unzipped her pants to scare her. He did not put his hands downherpants. He told her he would leave heraloneif she did not say anything and remained quiet. (12CT 3339, 3340, 3342, 3348, 3356, 3364-3369; 20RT 2908-2918) 18 Appellant said, “I didn’t really notice how it was, exactly how far it had gone until I noticed that she was colorless.” (12CT 3355) He added, “I wouldn’t have tried to kill her or anything or hurt her. (12CT 3302) After Melissa went unconscious, he propped her up into a sitting position at the foot of the bed. (12CT 3356; 20RT 2927-2928) He wasscaredthat “she was that pale and she was dead.” (12CT 3358) He used a rag to wipe off fingerprints from doorknobs, other surfaces, and “the wire thing” and he left. (12CT 3306-3308, 3356-3357) He thought he was in the Middleton house about ten minutes. (12CT 3299) At 12:00 p.m., Linda telephoned Melissa. When Melissa did not answer the phone, Linda became concerned but concluded she probably wasstill asleep. (20RT 2539-2545) b. Discovery of Melissa and Police Investigation At 3:20 p.m., Linda left work and arrived home. She used her key to open the front door, which was locked. She called out for Melissa but did not get an answer. She checked Melissa’s room, but Melissa was not in there. She checked her own bedroom and discovered Melissa sitting in front of the bed, with her legs crossed, arms out, and headto the side. Linda knew Melissa was dead by the way she felt and looked, but she attempted to resuscitate her. (17RT 2554-2555) Linda screamed for her neighbor, Valerie Elliott, who came over and told her to call 911. The 911 operator instructed Linda to lay Melissa down, put pillows underneath her, and cover her because she was cold. Sean Grady, a paramedic wholived in the neighborhood, came over. Melissa was wearing a plaid shirt and shorts, which was not a common combination of clothing for her. Her pants were unzipped. There were red marks on her neck that had not been there earlier in the morning, including a red bruise line from the middle of the throat to directly behind the right ear lobe. There were stereo headphonesat the bottom of the bed. (17RT 2556-2559) 19 At 3:40 p.m., Detective Michael Lynn of the San Jacinto Police Department responded to the scene. Officer Pollitt was at the scene, as well as several paramedics. When Lynn entered the bedroom, Melissa was on the floor. A firefighter was with her. Given the circumstances, Lynn concluded Melissa’s death was suspicious and made it a crime scene. The residence was secured and photographs were taken. There were no signs of forced entry into the house and no indication that the house had been burglarized. Robert arrived homeafter the police were alreadyat the scene. The police collected the headphones, bed sheets, a white sock, and a cameoring, and a cloth on stool found at the scene. (17RT 2611-2627) c. First Interviews of Appellant Detective Glenn Stotz of the San Jacinto Police Department knocked on the door of appellant’s house and appellant answered the door. Stotz introduced himself as a detective with the San Jacinto Police Department and asked if appellant had heard about what happened next door. Appellant replied that he had already heard that Melissa had been killed. Stotz questioned appellant as to whether he had heard or seen anything out of the ordinary during the day. Appellant said that he had been homeall day andthat he did not see anything out of the ordinary. He added that he did not know Melissa well but that she was a goodfriend of his sister. (18RT 2745) Appellant asked how she was killed, and Stotz replied that she was choked to death. (18RT 2746) Stotz left to canvass other residences in the neighborhood. Hereturned 30 to 40 minutes later accompanied by Detective Lynn. (18RT 2746) Appellant answered the door again. Lynn and Stotz introduced themselves and talked to him on the front porch. Lynn noticed somescratches on appellant’s right arm nearthe wrist. (17RT 2628-2629; 18RT 2743-2745) When they asked appellant abouthis relationship with Melissa, he repeated that he did not know herthat well. Stacey, appellant’s sister, said, “Huh-uh, you play fight with her all the time.” Appellant looked at Stacey with a shocked look. Lynn asked Stacey to step away so he 20 could speak with her alone. Lynn then returned to the crime scene to ensurethatit had been properly processed. (17RT 2628-2632; 18RT 2742-2753) Stotz remained with appellant. Appellant asked how Melissa had been killed. Stotz said she had been choked to death. Stotz asked appellant if he knew anything about an incident in which she had been attacked in her bedroom in the middle of the night. Appellant initially denied any knowledge of that attack. Later, he described an incident two or three weeks earlier, in which he woke up with his jeans on around midnight, in his front yard. He thought he might have been sleepwalking. (18RT 2752-2755) Stotz asked to look at appellant’s hands so see if there were any injuries. Appellant appeared visibly nervous. His arms and hands were shaking and his palms were extremely sweaty. There was a scratch mark and a gouge mark on his lower right forearm. When asked about the scratch marks, appellant said they probably resulted from playing with the cat earlier that day. Appellant walked back inside the house. (18RT 2754-2757) d. Second Interview of Appellant At approximately 8:00 p.m., Detective Stotz returned with District Attorney William Mitchell. Appellant’s parents were in the house. Appellant was told he was not under arrest and had no obligation to speak to Stotz. Stotz did nottell appellant that this interview was being tape recorded. Appellant agreed to speak to Stotz and Mitchell. He said he had not seen Melissa at all on November 29 and had last spoken to her two or three weeks before. He said he woke upat 9:45 a.m. that morning, stayed awakefor a short time, then fell asleep and woke up again at 11:00 a.m. He did some laundry and recycled sometrash. The previous night, he had gotten home about 1:00 a.m. and stayed up until 4:00 a.m. He noted that he had been to the Middleton house before to take care of the animals, but had not been there for about three months, when he returned the key. (RT 2756-2762, 2766-2767, 2847-2848) 21 When asked if he heard what had happened to Melissa, appellant said he heard she had been strangled with a cord and that there were fingerprints present. He added that she had been found dead on the floor in the bedroom andlater said it was her parents’ bedroom. Hesaid he learnedall this information from Stotz, but Stotz had not told him anything, and he denied having spoken to anyoneelse aboutit. He agreed to speak to investigators the next day. (18RT 2763-2765) e. Third Interview of Appellant On November 30, 1994 at approximately 9:00 a.m., Lynn and Stotz drove to appellant’s house and picked him up. Hesat in the back seat. He was not handcuffed or underarrest at that point. Appellant was quiet and sad andstarted crying and shaking; he said he did not think he could, but wanted to admit he was responsible for Melissa’s death. He continued that he was sorry he wasted their time but could not turn himself in the night before, in front of his parents. He agreed to goto the police station and talk about what happened. Hesaid he would tell them everything. Before the interview, appellant asked Lynn why he was laughing at him; Lynn hadsaid nothing to appellant and wasfilling out paperwork. Lynn said he was not laughing at appellant. Appellant said, “Yes, you are.” (17RT 2631-2636, 2644-2648; 18RT 2768-2769) Lynn remained with appellant, while Stotz gathered the necessary equipment for the taped interview. Before the tape was turned on, appellant was told that it would be turned on and that he would be readhis constitutional rights. Appellant asked some questionsfor five to ten minutes. Stotz was in contact by telephone with Deputy District Attorney William Mitchell and spoke to him once in the morning and oncein the afternoon. (19RT 2861-2864) At 9:45 a.m., Stotz turned on the tape recorder. (18RT 2780-2781) Appellant was read his rights and signed the San Jacinto PD-5 waiver form. (12CT 3287-3288; 19RT 2827-2829; 22 Peo. Exh. 3.) The taped interview was played for the jury. (Peo. Exh. 15A [tape] played for the jury; Exh. 15B [transcript], at 12CT 3286-3369)" At 10:40 a.m., Deputy District Attorney John Chessell entered the room and participated in the interrogation. (12CT 3304) At 11:20, the detectives and appellant took a lunch break. After that, Dr. Rath interviewed appellant. There was a break from 3:15 p.m. to 3:40. (19RT 2861-2862) At 3:40 p.m., Stotz and appellant returned to the interview room. (12CT 3351) At 3:45 p.m., Detective Rodriguez joined them. (12CT 3354) Stotz did not promise any leniency regarding the killing of Melissa, but he assured appellant that he would not get in any trouble for any prior contact with Melissa, including sex. (I9RT 2849-2852, 2879-2880.) He offered appellant something to eat and drink during each break. Appellant eventually admitted that he had tried to rape Melissa in the incident two weeks or two monthsearlier. (19RT 2865-2866; 20RT 3079-3081.) At 4:00 p.m., the interview concluded. (12CT 3369; 19RT 2861-2864) Appellant was formally placed under arrest and taken into custody. (19RT 2794- 2797.) He signed the waiver form after the interview. (19RT 2827-2829.) Appellant asked whether or not he would be receiving the death penalty. Stotz told him that the police can recommend charges but the decision is up to the district attorney. (19RT 2867-2873.) f. Search and Seizure of Items from Linton Home Pursuant to a search warrant, Detective Stotz searched appellant’s residence. He retrieved a pair of Melissa’s underwear from a trash can in the kitchen (Peo. Exh. 6, 16A), two whole bloodstains in a brown envelope (Exh. 16); a ring identified as belonging to Melissa (Peo. Exh. 13); and a pair of keys to the Middleton home (Peo. Exh. 6C and 6E). (19RT 2802-2807) * The contents of the November 30, 1994 interview are discussed in more detail in ArgumentI., post. 23 4. Forensic Evidence a. Autopsy Results The coroner examined Melissa. He concluded that she died from ligature and manual strangulation, indicated by petechial hemorrhages on the eyelids and eyes and behind the ears. Thelinear abrasion across her neck wasa bright reddish area and consistent with strangulation by a cable, cord, or headphone wire. A large red mark on the neck could have been caused by blunt force trauma by a finger or knuckle. There were signs of a struggle, but she probably lost consciousness within one to two minutes. Her death resulted from the fact that both her blood and air supply wascut off. There was no traumaindicating sexual assault, and all the swabs came back negative. Her injuries were not consistent with a carotid or bar choke hold. (18RT 2657-2683, 2706-2709) b. Fingerprint, DNA and ABO Typing Results Also found at the scene were twolatent prints, one on the inner portion of the door to the Middletons’ bedroom and one on the dresser top compartment door. (21RT 3197-3203.) Trace evidence and fingernail clippings were collected from Melissa’s body. (21RT 3208-3209.) The crotch area of Melissa’s underwear, found in the Linton trash can (Peo. Exh. 6, 16A), tested negative for sperm. Sperm was found on the front and back panels of the underwear. PGM and ABO typing were performed. (21RT 3217-3225.) Appellant was a “Type A” secretor, consistent with the two stains on the underwear and could not be eliminated as a possible donor of the semen. “A- secretors” such as appellant are found in about 31 percent of Caucasians, 19% of Blacks, and 25% of Hispanics. (21RT 3230-3232A.) DNA tests were performed. The prosecution criminalist compared appellant’s blood sample with the three underwearstains, using an RFLP DNA analysis. In all four of the DNA locations, appellant’s banding pattern matched the patterns in both the sperm and nonsperm fractions. Based on population data, 24 this combination of DNA would be present in less than one in one billion people. (21RT 3265-3271.) With respect to the DNA in Melissa’s fingernails, appellant fit the profile, but one in 11,000 Caucasians could be expected to fit the profile. (21RT 3276-3281.) B. DEFENSE CASE 1. Summary of Testimony Appellant did not testify. Since there was no dispute as to the fact that appellant strangled Melissa, the defense focused on the likely scenario that resulted in her death; a possible history of abuse by Carl Linton of appellant; appellant’s cognitive psychological functioning; and appellant’s mental state during the police interrogations. Werner Spitz, M.D., a forensic pathologist, was of the opinion that Melissa wasstrangled by the twisting of her own tee shirt, not manually, and may have lost consciousness and died within 20 to 30 seconds. (22RT 3310-3324, 3346-3348, 3418-3423) Craig Rath, Ph.D., the prosecution’s psychologist that interviewed appellant on November 30, also administered psychological tests that indicated he suffered from Attention Deficit Hyperactivity Disorder, and was highly depressed, uncomfortable with women, socially compliant and submissive, and was using marijuana and methamphetamine. (23RT 3485-3527) John Chessell, a deputy district attorney who interviewed appellant, denied unethical interview tactics. (24RT 3637-3649) A neighbor, Melody Morris, R.N., suspected that Carl Linton physically abused appellant. (24RT 3686-3695) Cecil Whiting, Ph.D., the defense psychologist, questioned Dr. Rath’s interview ethics, methods and results; he concluded that appellant suffered from social phobia; manic panic disorder with manic attacks, based on right temporal lobe damage; avoidant personality disorder featuring social phobia and panic attacks; and neuropsychological impairment. (25RT 3748-3820, 3826- 3829; 27RT 4071-4074) He also concluded that appellant was experiencing a 25 panic attack during Melissa’s homicide and could not recall what happened. (26RT 3909-3912) 2. WernerSpitz, M.D., Forensic Pathologist Werner Spitz, M.D., a board-certified forensic pathologist, reviewed a series of autopsy photographs. Spitz’s opinion was as follows: Mark number three was a ligature mark, but it was not made by the headphone cord. (22RT 3304-3309; Def. Exh. H) Melissa was strangled by clothing rather than a cord, which would have madea different kind of impression. The impression was made by a twisting of the tee shirt Melissa was wearing, up around her neck. (22RT 3310-3319, 3346-3348, 3418-3423; Def. Exh. I) In a case such as this, where there appears to have beenfear and a struggle, Melissa likely passed out, suffered brain damage, and may have died after 20 to 30 seconds of maintained pressure. (22RT 3320-3324) There was no evidence of manual strangulation, despite appellant’s statementto the contrary. (22RT 3354-3357, 3373-3376) 3. Craig Rath, Ph.D., Prosecution Psychologist On November 30, 1994, Deputy District Attorneys John Chessell and William Mitchell contacted Craig Rath, Ph.D., a licensed clinical psychologist. Dr. Rath had interviewed in-custody suspects in the past, on Mitchell’s request, and hadtestified in court many times. Thedistrict attorney hired Rath to interview appellant and perform a psychological evaluation of him. Rath understood that the purpose of the interview was to determine appellant’s mental functioning and gather evidence based on appellant’s answers. He also knew that the district attorney was interested in an admission appellant had a sexual interest in Melissa either before or on the date he killed her. That evidence, in turn, would be presentedto a trier of fact if and when the case cameto trial. (23RT 3475-3479, 3525, 3534-3539) 26 Rath normally would draw a diagnostic impression from such an interview. Rath wasnot hired to treat appellant. Rath was briefed before the interview by Chessell and a detective. They told Rath that three or four times during their interview with appellant, he had denied threatening sex with Melissa and said he just wanted to scare her. Rath took notes and at one point wrote, “Two months ago or two weeksago and now equals prior.” (Def. Exh. J, p. 4) Rath knew that if appellant killed Melissa during an attempted rape, the homicide became death penalty-eligible. (23RT 3475-3479, 3525, 3534-3539) From 12:45 to 1:50 p.m., Rath interviewed appellant. (23RT 3485-3488) He said he was there to figure out what was going on mentally with appellant. (23RT 3516-3518) From 1:50 to 3:15 p.m., Rath administered the Minnesota Multiphasic Personality Inventory (MMPI), a long and widely-used true-falsetest. (23RT 3482-3488) The interview was audiotaped and was played for the jury. (23RT 3543-3546; Def. Exh. M) With respect to the MMPI, appellant answered 400 of 566 questions. (23RT 3485-3488) The fact that appellant completed only 400 questions did not affect the test’s validity. Appellant scored high on the “O” scales, meaning that he was extremely introverted, unassertive, often uncomfortable around members of the opposite sex, sensitive to what others think of them, and sometimes submissive and compliant to authority. (23RT 3489-3493) He also scored high on the depression scale, indicating that he was highly depressed. On the energyscale, his score was low for anyone,particularly a 20-year-old male. (23RT 3494-3496) He had a high psychopathic deviant score, with subscales of antisocial acting out, social alienation and self-alienation. (23RT 3497-3498) Appellant had a history of Attention Deficit Hyperactivity Disorder (ADHD) but appeared to have outgrown the hyperactivity symptomatology. (23RT 3499-3500) He hadbeentreated with Ritalin; there is a higher incident of amphetamine usage among people treated with Ritalin as children. (23RT 3501- 3502) He had repeated the third grade, not unusual for a child with ADHD. 27 (23RT 3512-3513) He had flat affect, meaning that his facial expressions did not change. (23RT 3506-3507) There was no evidence that he was a sociopath or a pedophile. (23RT 3497-3498, 3572-3573) In the interview, appellant answered every question about his alleged sexual interest in Melissa. He denied any sexual fantasies about her. When asked abouta typical fantasy, he replied that it would be to go out on a date with a girl. (23RT 3508-3509) He did not become sexually aroused when he would horseplay with Melissa and his sister. He said he would have been too scared even if he had found Melissa attractive. (23RT 3525-3527) Rath asked appellant why he went into the Middleton house two months before, and appellant said it was because he was missing $100. He said he choked Melissa to keep her quiet. (23RT 3532-3533) He denied threatening sex with Melissa and just wanted to scare her. (23RT 3538) He said he wasscared and had no real perception of time when he killed Melissa. (23RT 3541-3542) He unzipped her pantsto scare her also. (23RT 3563-3565) Appellant related that he had been physically abused but when asked about sexual abuse, he answered, “I don’t think so.” He did not recall much from ages 5 to 12. (23RT 3510-3511) He washit by a car and knocked unconscious when he was 14. Hesaid alcohol and marijuana made him stupid, he neededall the brains he could get, and he was trying to stop using methamphetamine. (23RT 3516- 3518) 4. John Chessell, Deputy District Attorney Deputy District Attorney John Chessell testified that he assisted in the November 30, 1994 interrogation to assist the officers. (24RT 3637-3638) After he interviewed appellant, he briefed Dr. Rath. (24RT 3639-3641) He also wrote a search warrant for Detective Stotz to sign. (24RT 3639-3641) He did not have a particular method of interrogating in-custody suspects and he did nottry to plant the answers he wanted in appellant’s mind. (24RT 3645-3649) He did not know 28 if appellant wastelling the truth when he denied having sex with Melissa, but he repeatedly denied it. (24RT 3644) 5. Melody Morris, R.N. Melody Morris was the next-door neighbor to the Lintons, on the other side, at 340 Oleander Drive. She was a registered nurse and worked the night shift. She did not know appellant very well, but he occasionally would borrow her bicycle pump. He did not always look at her or talk to her. As an R.N., Morris wasundera duty to report suspicious of physical abuse. On one occasion, she was in bed and heard some big thumps on the wall between her house and the Lintons’ house, which are close. She wondered if she should call the police, but did not hear any yelling and decided not to. Between 1992 and 1994, Morris had seen Carl Linton scold appellant. Appellant did not talk back to his father. (24RT 3686-3695) 6. Cecil Whiting, Ph.D., Clinical Psychologist Cecil Whiting, Ph.D., a licensed psychologist, saw appellant six times and spent 15 hours with him, beginning on July 12, 1997. (25RT 3742-3756) Dr. Whiting administered a numberoftests to appellant, including a test for prefrontal functionality, mental status and logical reasoning, judgment, short-term memory, long term history, ability to remain focused, and concentration. Whiting found impairment in all of these areas and concluded that appellant may have had ADHD. (25RT 3757-3762) Dr. Whiting administered the MMPI, the same test administered by Dr. Rath. He concluded that appellant was socially isolated, depressed, shy, self- conscious, uninvolved and self-critical person. (25RT 3789-3792) Appellant’s propensity for assaultiveness was relatively low. He was under a great deal of stress and may have thought about suicide. (25RT 3809-3813) Dr. Whiting 29 concluded that appellant’s diagnosis was avoidant personality disorder. (25RT 3817-3820) Dr. Whiting was concerned that Dr. Rath gave appellant the MMPI when appellant was in the process of a police interrogation, because the test should not be given when the subject is fatigued, and appellant’s voice indicated extreme fatigue. Healso felt that at that time appellant was depressed and suffering from psychomotor retardation, where the subject does not want to move, think or be bothered and experiences a great deal of lassitude and malaise. (24RT 3763- 3767) Dr. Whiting also was concerned that Dr. Rath did not make a diagnosis. Most of Rath’s letter was devoted to appellant’s family history, relationship with his father, complicity in the killing of Melissa, social history, ADHD,and fantasy of going out on a date with a 19-year-old girl, which showed social impairment. (25RT 3770-3771) He was further concerned that Dr. Rath did not finish administering the MMPI, because there was not enough data to interpret some of the answers. Thefirst issue was the involvement of a psychologist in a manner in whichhis title might be misinterpreted by a patient who expectedto receivehelp. The second issue was use of the truncated MMPIin a forensic setting. (25RT 3774-3775) Dr. Whiting administered the Luria-Nebraska and Hooper Visual Organization tests. He found appellant had mild expressive aphasis affecting the ability to pronounce certain words; tactile sensation indicating a right temporal problem, astereognosis, and the ability to read complex but not simple material. (25RT 3817-3823) Based on the right temporal damage, appellant also had a manic panic disorder, where a quick flood comes from the autonomic nervous system creating rapid heart rate, profound breathing, cold hands and cold feet. (25RT 3826-3829, 3830-3836) Dr. Whiting reviewed the psychological assessments of appellant, going back to age five. Those assessments indicated as follows: He was socially 30 isolated, not functioning properly and not experiencing normal development. He was not able to cope with kindergarten; there were emotional outbursts that seemed related to the environment and interaction with other children. (26RT 3877-3878) He had a flat affect and minimal eye contact, consistent with social phobia. He was preoccupied with swatting invisible insects; his hands were always moving; and he seemed to feel the environment around him wasactive with insects. He also had fears of robotic monsters out to kill him or anyoneelse whocrossed their path. (26RT 3879-3883) When asked to draw picture ofhis family, he was unable to do so with the exception of one robotic figure that was armed with weaponsandlooked violent. (26RT 3882-3883) One of appellant’s teachers, Susan McKenzie, reported that he was in the top five of the most emotionally disturbed children she had ever seen and was socially retarded. She believed the root of his mental disturbance came from the home and that to be identified as emotionally disturbed at that young age was extremely rare. (26RT 3884-3886) In 1986, appellant was prescribed Dilantin to help with memory and focus. (26RT 3894-3897) Appellant reported that his father, Carl, hit him a numberof times, until he was 16. Carl dragged appellant into the house by his head, and heslid into something, cut himself and required stitches, although Carl would not take him to the hospital right away. The incident was reported to social services. Carl also kicked appellant on one occasion. Appellant suffered from continuous headaches, a sign of stress or the inability to respond to external stimuli. (26RT 3884-3889, 4048-4059) Appellant reported (in Dr. Rath’s report) that during the attack on Melissa, he did not have a clear perception of time. This can be explained as a derealization syndrome, meaning he probably wasnotliving in the moment, which is common with panic attacks. He denied any sexual fantasies regarding Melissa, said he had never had sex with a woman, and masturbated about once every three days. (26RT 3890-3897) Dr. Whiting concluded that appellant was experiencing 31 a panic attack during Melissa’s murder and could not recall what happened. (26RT 3909-3912) Appellant’s score on the psychopathic deviant scale was 81; the paranoia scale 81; obsessive worries and compulsive rituals or exaggerated fears, 90; schizophrenia, 90. Dr. Whiting wrote that appellant “suffers from disordered thinking and an inability to control his thoughts. It is likely that his behavioris odd or eccentric, that he tends to be socially reclusive, and that “his reality contact is impaired and he experiences frequent delusions and hallucinations. (26RT 4023-4027) C. REBUTTAL Linda Middleton was recalled and testified that she purchased the shorts Melissa was wearing when she died. Melissa wore those shorts on a regular basis and the zipper was working thelast time Linda saw the shorts. (28RT 4217-4218) Robert Middleton testified that the headphones were only four months old and were in good condition when heleft them on the nightstand. There wasa lot of damageto the cord after the last time he used them. (28RT 4220-4223) 32 IL. PENALTY PHASE A. PROSECUTION CASE 1. Victim Impact Evidence Both of Melissa’s parents, Robert and Linda Middleton, testified. Linda testified that Melissa was her only daughter and was born on August 18, 1982. Melissa was a friendly, outgoing girl who liked to go camping and horseback riding. She had many friends and pets. (32RT 4968-4971; Peo. Exh. 1 — Melissa’s school picture, taken in September or October 1994.) The jury was shown additional photographs of Melissa and her family, from the time she was bor. (32RT 4972-4981; Peo. Exh. 2-16, 18.) Her death was especially hard for her grandparents. (32RT 4972-4981.) Linda closed off Melissa’s room after her death and had just begun cleaning it out. (32RT 4982.) She thought about her every day and about the fact that she would never see her get married, have children, become a teacher, graduate from junior high and high school, and the like. (32RT 4982-4983.) Melissa’s murder changed both Linda and her husband. Onherbirthday, they might visit her at the grave and sit and talk to her for awhile. The Middletons no longer celebrated Thanksgiving or Christmas; they did not want to be around during that time, because it was too hard. (32RT 4983-4984.) The Middletons’ son moved to Spokane, Washington, and said he would neverbe able to live in California again. (32RT 4984.) The Middletons sought psychiatric help for about a year after Melissa died, and they eventually found a support group of parents with murdered children. (32RT 4984.) Linda did not feel that it ever would become easier. (32RT 4985.) Robert testified about Melissa’s personality and talents. She played the clarinet and alto saxophonein the band at school. Robert played for 30 years and taught her himself. They also bicycled together and she wrote stories that he 33 would critique for her. (32RT 4986-4987, 4988.) Melissa wanted to be a teacher but also felt that she was born to play music. (32RT 4988.) The night before Melissa was killed, she was at a Girl Scout meeting, helping out with the younger girls. Robert picked her up from the meeting, and she ran up and put her arms around him. (32RT 4989.) The following morning, she was not feeling well and asked if she could stay home, and Robert said he could. Her last words to him were, “Thanks, Dad,” as though he was doing her a favor. (32RT 4989.) The next thing Robert remembered was a telephone call from his wife at around 4:00 p.m. Linda was screaming and said Melissa was dead. Three co- workers had to help him out to his car, and one of his friends drove him home. Whenhearrived home, it was mayhem. Oneofthe police officers took him into the kitchen and said Melissa had been murdered. He could not understand why somebody would murder little girl, and he still cannot comprehend it. (32RT 4990- 4991.) His life was destroyed and he had suffered from panic attacks, total despair, and thoughts about suicide. (32RT 4991.) Robert had to live with images of Melissa being hurt, pleading for her life. (32RT 4991-4992.) The Middletons were a close family, focused on their children, and decided to stay in the houseto preserve all the memories of Melissa. (32RT 4993.) He described a family vacation on the Big Red Boat at Disney World; a Girl Scout father-daughter sock hop, and another cruise through the Panama Canal. (32RT 4994-4995.) There was a Christmas parade and monument dedicated to her at school. (32RT 4996.) Robert did not like to do things associated with Melissa any longer; he did not like to go to the movies or to Disneyland, and he did not play the saxophone anymore. (32RT 4993.) Life events like weddings and graduations were hard, because he felt cheated out of them. (32RT 4993.) Onefriend was so upset that he could not see Robert anymore because it was too painful. (32RT 4997.) 34 The hardest thing Robert had to do wastelephone his parents. They can hardly talk about it. It was also very hard to make the funeral arrangements. (32RT 4993-4994.) Two of Melissa’s friends testified. Jessica Holmes had known Melissa since the second grade and lived on the next block. (32RT 5003.) They rode bikes, walked Melissa’s dog, and started to build a clubhouse. (32RT 5003.) They went to school together and played in the band. (32RT 5003-5004.) Jessica’s brother told her Melissa had been killed. Jessica was at home, cleaning her instrument. They went and stood on her driveway. The police were there. (32RT 5006.) After Melissa was killed, the school had a ceremony in her memory. It was a very hard experience that no one had ever had happen before. (32RT 5004.) Jessica tried to forget about Melissa’s death, but it was always there, “kind of one of the lower times in yourlife.” (32RT 5006-5007.) Another friend, Lindsay Bryan, had known Melissa since the fourth grade and lived downthe street. They rode the bus to school together and shared similar interests. (32RT 5008.) Lindsay loved to listen to Melissa play the clarinet. (32RT 5009.) Melissa loved the outdoors and animals and wasvery cheerful. She wasone of Lindsay’s best friends. (32RT 5009.) Lindsay was at school when she found out that Melissa had been killed. They had plans to do something that weekend, andat first she did not believe it. (32RT 5010.) Lindsay cried a lot. The school offered counseling, and they talked to hera little bit. (32RT 5011.) Melissa had given Lindsay her school picture the day before she was killed. (32RT 5011.) B. DEFENSE CASE 1. EducationalHistory Twoschool psychologists and two teacherstestified. Randall Knack, Ph.D., was working for the Prince William County school system in March 1980, when appellant’s kindergarten teacher requested he be evaluated. (33RT 5108-5110.) 35 At that time, appellant was five years, five months old. He had short attention span. He engaged in silly “acting out” behavior and erratic and unpredictable behavior patterns. He had poor peer relationships and frequently complained. (33RT 5108-5110.) He would whine,cry, kick, crawl on the floor and refuse to do work. (33RT 5129-5131.) Knack administered the Stanford Binet intelligence test to appellant. Appellant scored in the 70 to 80 range, which is considered borderline retarded. In some areas, appellant showed high capability, and his potential appeared to be above average to superior. He was experiencing significant emotionalinterference and had problems with comprehension and concentration. (33RT 5113-5116.) Knack also gave appellant the Bender-Gestalt Test. Appellant functioned below his chronological age, although it was one of his stronger tests. There appeared to be a neurological problem, and Knack suggested that appellant’s parents havea pediatrician conducta neurological evaluation. Once again, Knack concluded that significant emotional problems interfered with appellant’s ability to concentrate, comprehend information, and express thoughts. At times he demandeda lot of attention and wanted to be praised, and at other times he would pull away. He had so much difficulty concentrating that it took three days to complete the testing. (33RT 5117-5119.) Knack took a social history which indicated that appellant’s behavioral problems began at age two. At age five, he was a confused boy whofelt he could not meet the demands that were placed on him. (33RT 5120-5124.) Knack recommendedthat appellant be placed in a special education class for emotionally disturbed children, and referred him for possible neurological evaluation, and family counseling. (33RT 5120-5124.) Whileit is a professional practice to avoid labeling students as emotionally disturbed so early, longitudinal studies of those identified in kindergarten and first grade result in a high probability that the situation will continue into adulthood. (33RT 5125-5126.) Emotional disturbance, in the educational realm, is defined as the inability to build or 36 maintain peer and adult relationships which also interferes with the ability to learn in the classroom. (33RT 5126-5128.) Appellant’s parents were supportive of Knack’s recommendations. (33RT 5133-5137.) He eventually was placed in a class for emotionally disturbed children, at another school. He scored A’s and B’s in a third grade class for emotionally disturbed children. (33RT 5135-5136.) Susan Prather McKenzie was a math teacher at Baldwin Elementary School in Manassas, Virginia for 21 years. In 1982, McKenzie taught a class for emotionally disturbed (“ED”) children from kindergarten through third grade. For a child to be placed in the ED class, he would have to be tested and reviewed by a committee. (33RT 5142-5146.) Appellant was in the class in the second grade, for a little over a year, because he hadbeenidentified as seriously emotionally disturbed. (33RT 5147- 5149.) He had imaginary fights with inanimate objects, such as his fingers or pencils. He appeared to have two different personalities and would be fighting and often appeared mad. He often did not pay attention in class and wasin his own world. (33RT 5147-5149.) Appellant was not aggressive towards the other children. Rather, he was withdrawn and kept to himself. (33RT 5150-5152.) He was a loner and did not socialize much. Oneof the goals was for him to interact appropriately and reduce inappropriate verbalization. He did not play with other children very much and his social skills were behind children his age. (33RT 5153-5154.) He respondedto positive reinforcement and the strict structure of the classroom. The grading system was the same but students were assigned work at their ability level. For example, as a third grader, appellant was reading second grade work. (33RT 5150-5152.) McKenzie thought he wasbright. (33RT 5153-5154.) McKenzie was concerned about appellant’s safety. In late winter, appellant came to school with stitches in his head; said he had been to the hospital the night before; and commented that he did not understand how he could have hurt his 37 head sledding, because he had a round, not a rectangular sled. School procedureat that time wasto notify the principal, who in turn notified social services. (33RT 5153-5154.) McKenzie learned shortly afterwards that appellant had fallen andhit his head on a banister. (33RT 5157-5161.) Appellant remained in McKenzie’s classroom until June 1984 andfinished the third grade. (33RT 5157-5161.) After that, he transferred to a private religious school. McKenzie felt that the placement was not appropriate, because the new school was religiously based and not trained to handle a child with appellant’s problems. (33RT 5155-5157.) In the new school Manassas Christian School, he was placed in third grade and was doing third grade work. His grades there from third through fifth grade indicated that he was an average to above average student. (33RT 5162-5169.) In McKenzie’s opinion, appellant was among five of the most seriously disturbed children she had seen in her career. His coping mechanism wasto put himself away from reality. (33RT 5155-5157.) Becky Ott was a school psychologist at Manassas City Public Schools in 1983. Appellant was in her class at Baldwin Elementary when she evaluated him that year. In the state of Virginia, children in special education are re-evaluated every three years to determine whether they still need services. (33RT 5172- 5173.) Ott administered the Wechsler Intelligence Scale for children, the Bender Test, human drawing test and the Rorschach Test. (33RT 5172-5173.) Appellant tolerated frustration poorly, talked to himself during testing, and swatted at imaginary flies on the table. He had poor eye contact and a flat affect. He had problemsrecalling information read to him orally during the intelligence portion of the test. (33RT 5174-5478.) Appellant scored average to high average on the Wechsler, with indications of higherintellectual ability. He had a great deal ofdifficulty with the Bendertest, because it required him to perform unstructured tasks and organize ten designs on 38 paper. He made a face with all ten designs. There was violence in his drawings. Whenasked to draw a person, appellant drew a monster or robot with weaponsto kill anyone whocrossed its path. (33RT 5177-5178.) Ott concluded that appellant was significantly emotionally disturbed. Based on the level of violence that she saw in the test results, she felt appellant viewed the world as very dangerous for him. When asked to draw his family, appellant said he could not do that and instead drew a robot protecting himself, revealing a strong likelihood of violence in the family. (33RT 5179-5180.) Appellant’s reality was distorted in that he viewed the world as a dangerous place and used fantasy to cope. During the stressful parts of the test, when he becamefrustrated, appellant seemed to begin swatting the imaginary flies, in a sense, as if to say, “go somewhere else.” His emotional disturbance was so great that it handicapped his learning. (33RT 5181-5182.) Appellant seemed able to cope with routine and structure, but if given something he was not familiar with, he had difficulty. His main weaknesses were his intellectual ability, attention span, and focus. (33RT 5183-5185.) Ott did not find appellant to be a danger to others and recommended continuance in the small ED classroom, teaching in social skill development and counseling. Like McKenzie, Ott did not feel that the move to Manassas Christian School was a good placement for him. He was one of the more disturbed children she had seen in her career. (33RT 5183-5185.) Jack McLaughlin had been teaching for 27 years, currently at San Jacinto High School, and was working on his doctorate. He had extensive experience teaching children with learning disabilities and mental problems. He was appellant’s teacher at Mt. View High School. (34RT 5341-5348.) There were never more than 60 children at a time at Mt. View and their issues encompassed the gamut from discipline problems, teen mothers, and those needing to make up credits. Appellant was there for one-and-a-half to two years, because he was 15 credits behind what he needed to graduate. His records indicated a 1.8 [C-] grade 39 point average from ninth through twelfth grade. (34RT 5349-5352; Def. Exh H — school records.) McLaughlin did not know that appellant had been diagnosed at age five as severely emotionally disturbed. (34RT 5349-5352.) Appellant’s enrollment form dated January 1989 and did notindicate that he ever had been in special education or received any type of counseling. (34RT 5356-5358.) McLaughlin never was informed that appellant had problems in the past. The classes at Mt. View were generally easier. (34RT 5368-5370.) Had McLaughlin received such records, it would have red-flagged that there had been psychological testing, and he did notrecall that. It would be hard to answer if appellant would have been placed in a different educational environment based on such information. McLaughlin did not know appellant had been in special classes for children with emotional issues. He had a lot of experience teaching children in mental hospitals. Depending on the illness, he took the problem into consideration as to what program and teaching method to use with the child. (G4RT 5353-5355.) McLaughlin did not know appellant had been diagnosed with attention deficit disorder (ADD) In his experience, treatment with Ritalin often helps ADD children improve dramatically. To accurately evaluate appellant’s progress, McLaughlin would have had to know that he was diagnosed with ADD and had been on Ritalin. (34RT 5404-5407.) Had appellant’s problems in elementary school been known, he probably would not have been admitted to Mt. View because there would have been other educational alternative programs for him. He sometimes would talk back to teachers under his breath or mumble disrespectfully. (34RT 5407-5411.) McLaughlin metthe Lintons several times and personally taught appellant. Appellant was very slow in earning his credits. (34RT 5359-5362.) Appellant was never a discipline problem at school and tended to be a loner. He barely maintained the 30 credits he needed for each semester. An exception was made 40 and he wasallowed to stay at Mt. View until he was 19, to graduate high school. A note wassent to the Lintons, informing them appellant was behindin his credits so that they could assist in helping him complete his education. (34RT 5363- 5370, 5376-5378; Def. Exh. H, p. 10.) When they were informed that he was behind, the Lintons threatened legal action. McLaughlin felt they held the teachers responsible for appellant not succeeding. (34RT 5368-5370.) Carl Linton told McLaughlin that he wanted appellant to go to college and becomeanelectrical engineer, but appellant could not do the work. Appellant did not interact with other children very often and did not seem to have any friends other than Montero, who also went to Mt. View. Appellant usually did not attend physical education classes. He wasnot prepared to attend college, but could have gone to a community college. (34RT 5371-5375.) McLaughlin’s impression was that appellant had the potential but did not pay attention in class and daydreamed a lot. His SAT scores were normal. (34RT 5387-5393.) 2. Family History Carl Linton, appellant’s father, testified. He married appellant’s mother, when he was 24 and she was 20. They belonged to a church called The House of Bread and attended regularly. Although they did not feel ready to start a family, peers at the church said birth control should not be used. (33RT 5196-5197.) They were married a little over a year when appellant was born. Appellant was a blue baby and had to beresuscitated after a 28 hour labor. His mother was given Demerol and Scopolamine to ease the labor. Appellant spent the first 24 hours of his life in neonatal intensive care because ofhis blood sugar. (33RT 5200-5201.) The House of Bread was extremely fundamentalist and said children should not be disciplined or struck with hands, so a lot of members used spoons with scriptures inscribed on them. Carl got a spoon which he inscribed with scriptures about discipline of young children. He began using the spoon when appellant was between one and twoyears old. The spoon was supposedto be used onthe child’s 41 bottom when he transgressed authority; both Carl and his wife used it. (33RT 5198-5199.) Appellant was a joy thefirst year of his life. (33RT 5202-5204.) Carl’s temper began to get out of control when appellant learned to walk. He punished appellant with the spoon whenhe lost his temper. Afterwards, Carl felt crushed, ashamedanda failure. He hit appellant so hard sometimes that he broke to spoon or bruised appellant. Sometimes he hit appellant on the back and shoulders. Afterwards, Carl would try to make up with appellant and explain that he had been wrong and would try notto doit again. (33RT 5200-5201.) Carl lost his temper sometimes once a month and sometimes every other day. Once he lost his temper, it was hard to control. Appellant started talking shortly before his second birthday and had problems understanding Carl, which continue to the present. Carl reacted physically and verbally when he lost his temper, but not alwaysat the same time. (33RT 5202-5204.) One instance in which Carl went beyond corporal punishment was mentioned in court. It was snowing, and Carl gave appellant a specific time to come home, which appellant exceeded. Carl called appellant from the door, and appellant did not respond. Carl screamed at the top of his lungs, and appellant came to the door, but Carl was in a rage at that point. When appellant got to the door, Carl grabbed him by the hair and pulled him in. Appellant tripped on the rug or step and banged his head on the iron portion of the banister. (33RT 5202- 5204.) The cut appeared to be about an inch long and Carl thought it would heal. When appellant’s mother got home, she said it needed stitches. Carl feared the authorities would file an incident report on him and take appellant away. Appellant’s mother took him to the hospital. (33RT 5205-5206.) Pursuantto the recommendations of Ott and Knack, the Linton family went to family counseling at three different times. Carl felt that it did not help. (33RT 5219-5221.) 42 In 1992, when appellant was 15 or 16, another incident of abuse occurred. They were visiting appellant’s mother’s father. Stacey was screaming at appellant. Carl saw appellant reach over and grab Stacey bythe throat. Carl went into a rage, grabbed appellant by the throat, just about lifting him up, andsaid, “See, this is how it feels. Don’t do that.” Appellant started babbling incoherently, knocked Carl’s hand awayand ran out the door, continuing to scream and babble. (33RT 5205-5206.) Appellant was gone the entire night. (33RT 5207-5209.) As a child, appellant had trouble communicating. This in turn frustrated Carl, who would react sometimes by hitting appellant. Appellant’s communication skills have improved drastically since going to jail. He also showed steady improvementsince he started taking Ritalin in 1985. (33RT 5207- 5209.) There was a dramatic change whenhe wasplaced on Ritalin; he could do his homework in 30 to 45 minutes, instead of hours. He stayed on Ritalin for a numberof years but then developed side effects such as hand andinternal tremors. Somenaturopathic remedies were attempted but nothing worked as well as Ritalin. After he went off the Ritalin, some of the old problems returned. (33RT 5213- 5216.) Carl was associated with a research program investigating Dilantin, and he gave some to appellant. Appellant seemed to fit some of the indications for Dilantin: Lack of concentration, flat affect, lack of cognition, learning disabilities, and depression. Carl also thought Dilantin could help him because sometimes the rages Carl experienced felt like seizures. Carl and appellant went on trial of Dilantin. After 30 or 90 days, there were no noticeable positive results, so they discontinued the program. (33RT 5219-5221.) Appellant’s first year at Manassas Christian was extremely difficult. The Lintons had to tutor appellant every night. Appellant graduated high school from Mt. View School, a continuation school in San Jacinto. In his last semester, he earned five A’s and two B’s. He attended Mount San Jacinto Community College 43 for a quarter and a half before dropping out. He said he was tired of school. (33RT 5210-5216, 5240-5243.) Carl tried to teach appellant to drive. Appellant had a learner’s permit but not a driver’s license. He took the written test four times and the behind-the- wheel test once, at age 19. He had odd jobs. Carl paid him $40 per week to do light housekeeping and baby-sit Stacey, who was 12 years younger. Appellant also took care of the Middleton’s animals when they were on vacation. (33RT 5213-5218.) Both ofthe Lintons worked throughout their children’s lives. (33RT 5217-5218.) Carl pressured appellant to get a job, but he never got one. Appellant did not have a lot of confidence, although he was a teacher’s aide, played in the band, and took Tae Kwon Doandkarate through high school. (33RT 5247-5249.) In 1994, appellant did chores, played games such as Nintendo, was involved in a weekly role-playing thing, watchedtelevision, read andslept. (33RT 5213-5218.) Appellant was involved in the role-playing game of Dungeons and Dragons, every week with a group in Hemet. (33RT 5247-5249.) Stacey was a completely different type of child from appellant. Appellant loved Stacey and took excellent care of her. (33RT 5217-5218, 5222-5223.) Stacey could be very aggressive and wouldtell on appellant. Half the time, he would “catch hell” and half the time he would not. Appellant rarely stood up for himself, which frustrated Carl. He never saw appellant hurt anyone. (33RT 5222-5223.) Appellant was very compliant to Carl’s demands and said and acted as though he wasafraid of Carl. (33RT 5235-5238.) He was loving towards Carl, his mother, his sister and his grandmother. He wasloyal and always had been a good boy. He misunderstood instructions. He never hit anyone in the family. (33RT 5235-5238.) Carl did not notice any signs that appellant was using drugs. Carl smoked marijuana on occasion but not in front of appellant. Appellant was not given access to the movies and pornography in the Lintons’ bedroom. He was physically abused by Carl, but never sexually. As a child, appellant was given 44 aspirin suppositories because he could not keep any oral medicine down. (33RT 5244-5246.) Carl was still working on his temper problem. When appellant was 17 or 18, Carl punched him in the stomach and knocked the wind out of him. (33RT 5250-5253.) Lawrence Linton, Carl’s younger brother and appellant’s uncle, testified. Lawrence lived two miles away from the Lintons when theywerefirst married and saw them frequently. Carl had a hair-trigger temper and often lost control. He lost his temper with appellant when appellant wasstill an infant. (34RT 5256- 5258.) Carl is the kind of person who goes overboard andis fanatical one way or another; for instance, he objected to standardized medicine and organizedreligion. (RT 5256-5258.) Lawrence thought Carl’s involvement with The House of Bread was goodfor him. In the recent past, Carl had used drugs in high school andin the Navy, leading to his discharge. Carl was irresponsible but not a criminal. (34RT 5259-5261.) From the time appellant was two-and-a-half in 1974, Lawrence saw the Lintons beat appellant on the buttocks with a wooden spoon with Biblical scriptures on it any time he did something of which they did not approve. Carl’s mother, Alice, was very opposed to the use of the spoon and interceded after seeing bruises on appellant’s body. Appellant was beaten for not conforming to what his parents wanted. (34RT 5259-5261, 5282-5284.) Appellant would be locked in his room if he was cranky or doing something his parents disapproved of. (34RT 5266-5268.) Alice threatened to have appellant taken awayif there was any more evidence of abuse. (34RT 5288- 5292.) Lawrence felt Carl had extreme views on how heraised appellant and that his irresponsibility and inconsistencies were very damaging. After beating appellant, Carl would hug him andtell him he loved him and wassorry. (34RT 5274-5275.) Carl told Lawrence that he was bisexual. Lawrence never saw signs 45 of sexual abuse with respect to appellant. Carl’s wife did not allow any pomography or pornographic moviesin the house. (34RT 5293-5296.) As a child, appellant was quiet, not outspoken or demanding. He was obedient to Carl. The Lintons were very strict with appellant, to the point of physical abuse. They spent one to two years as members of The House of Bread and then totally went in the opposite direction and stopped going to church. Lawrence saw his mother take appellant to church. (34RT 5269-5270.) Carl started using marijuana again. (34RT 5288-5292.) Lawrence recalled a time when the Lintons left appellant, age two, home alone in his crib and went out to the movies. When they returned home, appellant was crying. (34RT 5262-5265.) Appellant was not able to put sentences together and converse until he was five or six, and he wasnottoilet trained until he was about six. (34RT 5262-5265.) The Lintons movedfive or six times after appellant was born and appellant attended several different schools. (34RT 5271-5273.) Lawrence helped the Lintons moveto California. He visited on Labor Day and Thanksgiving 1993 and spent time talking to appellant. Lawrence cherished those times, because appellant really opened up. (34RT 5266-5268.) He stayed with the Lintons for three weeks after Labor Day. (34RT 5276-5278.) Lawrence observed that appellant baby sat Stacey, played video games, and played Dungeons and Dragons. Hedid notsee appellant interact with children his own age. The first day the Lintons moved in, Melissa Middleton came over and became fast friends with Stacey. Melissa was at the Linton house quite often. (34RT 5276-5278.) On one occasion when he wasvisiting in September 1993, Lawrence saw Carl shove appellant against a brick wall and shake him for not taking the trash out. Afterwards, Carl hugged appellant and said he wassorry. (34RT 5276-5278.) The Lintons treated Stacey completely differently from appellant. She was never hit or yelled at. Appellant loved Stacey and seemed to have no animosity 46 towards her. He was a good kid and was never mean to any person or animal. The murder of Melissa was totally out of character for appellant. His best qualities were his unconditional loyalty and love. Appellant had matured while in prison and nowacted like a man. (34RT 5279-5282.) Diane Sams, Carl’s sister and appellant’s aunt, testified. She and Carl had been close as children but after he went to college and the Navy, they drifted apart because oflifestyle differences. (34RT 5301-5302.) Diane saw appellant at her mother’s home every month and did not approve of how he wastreated. He was neglected and not kept clean — he was not bathed and his diaper was not changed very often. The Lintons referred to appellant as “it” and would not permit baby talk. Appellant was slow at speaking and probably could not form a sentence and be understood until he was five. (34RT 5303-5305.) Diane thought appellant was disciplined too harshly when he was too young to understand what he had done wrong. She saw the wooden spoon used. (34RT 5303-5305.) Appellant was very passive and did notreact to the discipline. Hedid not appear mean. He respondedto affection when Diane was affectionate towards him. He spent some time with Diane and her husband whenhewaslittle, and they took him to a museum. He was very easy to deal with and did not misbehave. After the family moved to California, appellant visited Diane in Virginia. (34RT 5306-5311.) The Lintonstreated Stacey very differently, as if they were not happy when appellant was born and Stacey was the answerto their prayers. He was shunted aside when Stacey was born. At Easter 1992, the Lintons visited. Appellant tried to be part of the adult’s conversation. Every time appellant would try to say something, Carl would direct attention back to Stacey. After that, he stopped trying to be part of the conversation. (34RT 5312-5313.) Carl did everything to the extreme. He would find an obsession and follow it wholeheartedly. He was obsessed with psychedelic music, then born-again Christian religion, then holistic medicine. He worked as a respiratory therapist. 47 Diane’s mother is the person to whom appellant is the closest in the family. She writes letters and speaks to him on the telephone. Appellant was always a kind and good boy. (34RT 5314-5315.) His best qualities were his loyalty, sweetness and generosity. He was a man now andhada confidence and personality that was not there before. He was able to express himself and to understand others now. (34RT 5316-5317.) Alice Linton, appellant’s father’s mother, lived near the Lintons when appellant was an infant and visited frequently. For the first couple of years ofhis life, she felt the Lintons were immature and neglected him. He wasnot a problem baby. (35RT 5472-5474.) He did not exhibit behavior that attracted negative attention, but was disciplined with the spoon manytimes. Alice tried to intervene. The Lintons attended The House of Bread church. Appellant was small for his age and was not able to carry on a conversation until he was three-and-a-half to four years old. (35RT 5475-5477.) Carl had a quick temper and hit appellant with the spoon many times. Alice saw bruises on appellant’s back, shoulders, and thighs. On one occasion, she told the Lintons that if there were any more bruises, she would report them to the authorities. After Carl’s temper subsided, he would hug appellant. (35RT 5478-5479.) Stacey was loved very much and treated very differently from appellant. She was pampered and catered to, while appellant was “subjected.” Her speech developed sooner. Appellant loved her and never did anything mean to her. (35RT 5480-5481.) The Lintons moved from Virginia to California because Carl felt he had some good business connections. Alice financed the move. (35RT 5480-5481.) Since that time, appellant came backto visit, once alone and once with the family. Alice visited California once a year and stayed at the Linton’s home. The Lintons used marijuana, but only in their bedroom. Alice met Melissa. (35RT 5482- 5484.) Stacey went to Melissa’s house often and they appeared to be very close friends. (35RT 5488-5489.) 48 In California, appellant had to take care of Stacey while the Lintons worked. Alice felt they continued to play favorites with Stacey after the moveto California. When Stacey yelled, appellant would get in trouble. The only friend Alice recalled was Montero. She was concerned about appellant’s introverted life and suggested tae kwondo to help with his self-confidence and also becauseofhis small stature. He was a good kid, but shy. (35RT 5485-5487.) Alice was concerned whenappellant was a child that he was so introverted that he would not makeit in the dog-eat-dog world, but she never thought appellant would murder. (35RT 5488-5489.) Alice loved appellant very much and felt he loved her. She intended to continue to visit him after he went to prison. She put moneyin his account, and he sent her cards on every occasion. She sent him $50 once, and appellant used the money to buy “goodies” for other inmates. Since being in jail, appellant had matured and appeared to have more self-confidence. (35RT 5490-5492.) She spoke to him weekly on the phone. He felt dreadful about Melissa. Melissa was pretty at 12 years old and a normal young man might have been interested in her. Appellant did not display any interest in her. (35RT 5492-5494.) Carl was raised in a strict environment, but not physically abused. Carl’s father used a belt to hit. Alice did not know Carl was using drugs in high school. Lawrence was involved in burglarizing residences when he was younger but is now employed. (35RT 5495-5497.) Alice would not call her family dysfunctional but would characterize Carl’s family as such. (35RT 5498-5499.) 3. Involvementin Live Action Role-Playing Games Robert Osborne, age 45, was a computer support technician retired from the Air Force. He met appellant in 1990 after appellant responded to an ad for people 49 interested in role-playing games.” The club wasstill in operation. In 1990, the club met every Saturday, from noon to midnight. Osborne spoke with appellant’s mother to obtain permission for him to become a memberofthe club. There were seven members, including appellant, and appellant was the youngest. (35RT 5418-5421.) The other men in the group were three men in the Air Force, one in the Army, one ex-Marine, and one other man. (35RT 5422-5423.) Other high school students were allowed into the group from time to time. (35RT 5448- 5450.) Osborne’s role was Dungeon Master, and he was considered a leader. Appellant was a follower and respected authority. (35RT 5422-5423.) Osborne asked appellant why he was in continuation school, because it was the group’s policy that high school students maintain a B average. (35RT 5435-5438.) At their first meeting, it became clear that appellant had book knowledge of gaming but had not played with experienced players. He needed help in generating character. (35RT 5439-5440.) Anybody in the group eventually was able to talk appellant into doing something he might not have wanted to do in the first place. In one incident, the “A live action role-playing game (LARP)is a form of role-playing game where the participants physically act out their characters’ actions. The players pursue goals within a fictional setting represented by the real world, while interacting with each other in character. The outcome of player actions may be mediated by gamerules, or determined by consensus betweenplayers. [para.] The first LARPs were run in the late 1970s, inspired by role-playing games and genre fiction. The activity gained international popularity during the 1980s, and has diversified into a wide variety of styles. Play may be very game-like, or may be more concerned with dramatic or artistic expression. The fictional genres used vary greatly, from realistic modern or historical settings to fantastic or futuristic eras. Production values are sometimes minimal, but can involve elaborate venues and costumes. LARPsrange in size from small private events lasting a few hours to huge public events with thousands of players lasting for days.” (“Live Action Role Playing Game”in Wikipedia) 50 group talked him into having his character do something different than he wanted within five minutes, to the point that he believed he wanted to do it in the first place. Appellant did not appear to have a social life outside of the gaming sessions. He was overly shy and lacked confidence. (35RT 5424-5427, 5435- 5438.) The group teased appellant in a friendly way, although one member went too far and Osborne put a stop to it. (35RT 5428-5429.) Appellant appeared to be a “whiz” at math. He usually chose to play a fighter character. (35RT 5444-5450.) Appellant took Tae Kwon Dolessons with Osborne’s son, who was16at the time. (35RT 5428-5429.) Appellant progressed until the brown belt. Osborne met Carl Linton at some of the belt progression competitions. Carl seemed to notice what appellant did wrong rather than what he did right. Appellant seemed fearful and submissive around his father. The only complaint appellant made about his home life was having to baby sit. (35RT 5430-5434.) He tried hard for improvement in gaming and Tae Kwon Do. (35RT 5451-5452.) In 1991 and 1992, Osborne wassent to Iceland on an Air Force assignment. (35RT 5439-5440.) When Osborneleft, appellant’s confidence had increased and he was able to say what his character would do without being asked. He was playing the cleric, a harder class to play. When Osborne returned, appellant seemed to have returned to a confused state, concerned whether or not his character would do something to meet with approval. Appellant did not handle pressure well and took the longest amountof time to figure out what his characters would do. (35RT 5441-5443.) During the last few months of 1994, appellant behavior started to change. He would leave the game around 9:00 or 10:00 p.m. (35RT 5448-5450.) When Osborne asked what wasgoing on,he said he had a friend to meet with. Osborne did not think appellant was using drugs, although sometimes he showed upat gaming sessions with dark circles under his eyes, as if he had not been sleeping. 51 Appellant became angry a few times but got it under control; it usually happened when someonewasteasing him. (35RT 5451-5452.) Osborne asked appellant why he wasnot dating, and appellant replied that he was not ready. Sex was not involved in role-playing games. Appellant’s characters were usually lawful, good-natured and spoke up for morals. He could distinguish right from wrong and did not have any confusion betweenreality and fantasy. Osborne continued to correspond regularly with appellant after appellant wasin jail. (35RT 5456-5459.) 52 ARGUMENT GUILT PHASE ISSUES I. THE PROSECUTION’S HOUSE OF CARDS: INVOLUNTARY CONFESSION AND RELATED ISSUES A. The Trial Court Violated Appellant’s Right to Due Process and Against Self-Incrimination Under the Fifth and Fourteenth Amendments to the Federal Constitution and Article I, Section 7 of the California Constitution, When It Overruled Legal Challenges to Police Interrogation Tactics Which Vitiated His Miranda Waiver, Overbore His Will and Rendered His Confession Involuntary. 1. Evolution of a False Confession From “Water Under the Bridge” To “I Tried To Reap Her”: How the Prosecution Got Its Special Circumstance During deliberations, the jury sent a note that, “A juror believes the entire interview is a lie and is interjecting speculation. Where do we go from here?” (31RT 4844) The note reveals that at least one juror questioned the reliability of appellant’s interrogation. The juror[s]’ skepticism had ample support in the record. “(Custodial police interrogation, by its very nature, isolates and pressures the individual,’ [Citation], and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed, see e.g., Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C.L. Rev. 891, 906-907 (2004).” (Corley v. United States (2009) U.S. ,__ [2009 WL 901513,slip opn.at p. 11].) All roads in this case lead back to the same core issue about which the Supreme Court in Corley was so concerned: Whether the police and the district attorney violated appellant’s Miranda rights and coerced a confession from him about a prior crime in which he was alleged to have entered the Middleton house late at night and tried to rape Melissa. The prosecution used the confession about 53 the earlier incident to demonstrate intent to commit sexual assault or rape when weeks or months later, appellant strangled and killed Melissa, giving rise to this capital prosecution. The authorities’ repeated false assurances that any prior sexual incident between appellant and Melissa was “water under the bridge” vitiated his Miranda waiver and caused it to be neither knowing norintelligent. (Miranda v. Arizona ((1966) 384 U.S. 436.) Appellant’s confession also was coerced and may have been false because once he purported to waive his Miranda rights, the police employed tactics that induced him to confess to the prior incident that may not have occurred or may not have occurred in the manner described. After a day of interrogation, appellant wearily whispered,“I tried to reap [sic] her ... two months ago...whatever...” and a capital case was born. (Mot. to Supp., Exh. 3, at 5 SCT 233) The trial court’s decision to admit the confession violated appellant’s privilege against self-incrimination and right to due process and fundamental fairness, because the confession was extracted in violation of appellant’s rights and because the interrogation tactics also yielded a result that lacked reliability. (U.S. Const., Fifth, Eighth and 14™ Amend.) Once admitted, the confession of the prior act was incurably prejudicial because the prosecution argued and the jury wasinstructed that it was cross-admissible to prove appellant’s intent and attempt to rape Melissa on the morning he strangled her. Appellant’s conviction and sentence should be reversed based on admission of the confession. (Chapmanv. California (1967) 384 U.S. 18, 24.) 2. Standard of Review “Without exception, the [Supreme] Court's confession cases hold that the ultimate issue of ‘voluntariness’ is a legal question requiring independent federal determination. [Citations]” (Miller v. Fenton (1985) 474 U.S. 104, 110.) The voluntariness of a statement is determined by an assessment of the "totality of the 54 circumstances" surrounding the interrogation. (Arizona vy. Fulminante (1991) 499 US. 279, 286 [111 S.Ct. 1246]; Colorado v. Spring (1987) 479 U.S. 564, 573 [107 S.Ct. 851].) “In reviewing the trial court's determinations of voluntariness, [the reviewing court applies] an independent standard of review, doing so ‘in light of the record in its entirety, including “all the surrounding circumstances--both the characteristics of the accused and the details of the [encounter]’....” [Citations]’’ (People v. Neal (2003) 31 Cal.4" 63, 80.) The reviewing court “must examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat. [Citations] With respect to the conflicting testimony, the court must ‘accept that version of events which is most favorable to the People, to the extent that it is supported by the record.’ [Citation]” (People v. Hogan (1982) 31 Cal.3d 815, 835; accord, People v. Anderson (1990) 52 Cal.3d 453, 470, People v. Smith (2007) 40 Cal.3d 483, 502) The validity of the suspect’s waiver of Miranda rights, which is affected by the voluntariness of the statement, must be demonstrated by a preponderanceof the evidence. (Colorado v. Connelly (1986) 479 U.S. 157, 168-169 [107 S.Ct. 515].) “...In order to introduce a defendant's statement into evidence, the People must prove by a preponderance of the evidence that the statement was voluntary. [Citation.] ... When... the interview was tape-recorded, the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial court's determination of voluntariness.’ [Citation]” (People v. Perdomo (2007) 147 Cal.App.4" 605, 614, citing People v. Vasila (1995) 38 Cal.App.4" 865, 873.) 55 3. Factual and Procedural Background a. Appellant’s Coerced Confession: Prior Attempted Rape On the evening of November 29, 1994, not long after Melissa Middleton was found dead, prosecuting District Attorney William Mitchell and Detective Glenn Stotz walked next door and talked to appellant Daniel Linton in his bedroom. Atthat time, they claimed, appellant was not a suspect, and they did not Mirandize him. (Mot. to Supp., Exh. D, at SSCT 67) Mitchell assured him that any prior sexual encounter or activity with Melissa was “water under the bridge,” and not grounds for appellant to be legally in trouble: DDAMitchell: “Like, if —if you and Melissa had had some problems sexually in the past, and you’re tryingto hide that, that mightsetit [lie detector] off, so you’d haveto tell us that ahead of time. What we’re interested in, the murder, of course, we don’t care about anything else that happened,... that’s water underthe bridge now.” (5SCT 86) >>>>>>>> On the following morning of November 30, 1994, when the police picked appellant up at his home, he was sobbing and almost immediately admitted that he killed Melissa. (9RT 1066-1068) The police wanted more. They had their minds made up that appellant sexually molested Melissa, or tried to, and steered their investigation to fit that theory, which in turn would render the homicideeligible for the death penalty. When appellant doubted that he was involvedin priorlate- night attack on Melissa, both the district attorney and the police again assured him that it was “water under the bridge.” (5SCT 81, 86.) Stotz read appellant his Miranda rights, and appellant signed a form stating that he understoodhis rights and wished to talk to the police, but the damage had been done before the interview commenced. (5SCT 4) Pr>>>>>>>> 56 Bythe late afternoon of November30, 1994, appellant had been questioned by two detectives, two deputy district attorneys, and a clinical psychologist retained bythe district attorney to evaluate him. (See 2RT 144-146) Helikely was exhausted, hungry and sleep-deprived. He had been assured repeatedly by the district attorney and the police that any prior incident was “water under the bridge” and not subject to criminal prosecution. (See 5SCT 8, 9, 34, 63, 81, 86; 2RT 144-146) He had deniedat least 50 times that he intended to sexually assault Melissa on either the day he strangled her or any prior occasion. Around 4:00 p.m., after yet another promise that if he would just confess the interrogation would be over, appellant recanted his denials and finally provided the confession Detective Stotz was looking for: Detective Stotz: “The sooner youtell me the truth, the soonerI’1] turn this machine off and the sooner we’ll all be on our way.” Daniel Linton: “So I haveto say it out loud?” Detective Stotz: “Yes, you do.” After more discussion, appellant whispered,“I tried to reap [sic] her ... two months ago...whatever...” (Mot. to Supp., Exh. 3, at 5 SCT 233) Shortly after 4:00 p.m., the interview concluded and appellant was booked. (6RT 692-694; 9RT 1088-1090) At Rodriguez’s direction, appellant telephoned his parents. (ORT 1091-1093) The police never were able to persuade appellant to admit that he was attempting to rape Melissa when he killed her, but as evident from the last sequence of questioning, they did extract a confession as to the prior incident that he “tried to reap [sic] her ... two months ago... whatever ... whenever.” 57 b. Motion to Suppress - Hearings On May 28, 1997, at the close of the preliminary hearing, the defense brought a motion to dismiss pursuant to Penal Code section 995, alleging that the police interrogation of appellant was coercive and based on false promises of leniency. The court, the Hon. W. Charles Morgan presiding, heard argument and denied the motion. (IRT 104-114) On February 6, 1998, the defense filed a motion to suppress appellant’s statements to the police. (ICT 189-192 [Def. Mot.]; 2CT 498-504 [Def. Supp. Pts and Auth.]; 3CT 811-820 [Def. Reply]; 2CT 450-453 [Pro§ Resp.]; 3CT 773-779 [Pro§ Opp.]; 2RT 137-190; Def. Exhs. A [tape], B [Miranda form], and C (transcript, 1 page], all madepart of the record at 2RT 173-175.) On February 27, 1998, the court, the Hon. Robert J. McIntyre, presiding, stated that it would consider all previous hearings, including the preliminary hearing, in considering appellant’s motion to suppress. (2RT 137-139) Hearing commenced on the motion to suppress. After hearing the testimony of Craig Rath, Ph.D. (2RT 144-161) and Detective Glenn Stotz (2RT 162-184), the court decided that the matter should instead be heard as a pretrial in limine motion and postponedthe hearing. (1 CT 162-177, 185-187, 198) On October 27, 1998, the hearing resumed before the trial court, the Hon. Gordon Burkhart, presiding. The court heard the testimony of Detective Stotz, Deputy District Attorney John Chessell, Dr. Rath, Detective Michael Lynn, and Sergeant Frederick Rodriquez. (SRT 532-1198; Exhibits set forth in Endnote, post., all marked and admitted into evidence, at 4CT 833; 9RT 1199-1205.) The court denied a defense request that Deputy District Attorney William Mitchell’s testimony during the August 17, 1998 recusal hearing be part of the record ofthis hearing. (QRT 1169-1197) 58 Cc. Motion to Suppress - Denial On November9, 1998, the trial court heard argument from the parties and ruled, “I am going to deny the motion. And again, without going into a lot of reasons, I think that the statements are admissible. I think they are free and voluntary. I don’t think his will was overborne. I don’t see a violation of the due process provisions of the various Bill of Rights provisions that you’ve referenced, including the Fourteenth Amendment. [para.] So the — the statement will be admitted. And I feel that, for the reasons — for the most part, for the reasons stated by Mr. Mitchell, I am denying the motion. Again, without spending a lot of time going overit, I’m simply adopting his argument as my reasons.” (RT 1343; see defense argument at RT 1214-1297; prosecution argument at RT 1297-1341) d. Interrogation Evidence Presented to the Jury Appellant’s taped interviews with Detective Stotz, Sergeant Rodriguez and District Attorney Chessell were played for the jury and admitted. (Peo. Exh. 15A [tape] played for the jury; Exh. 15B [transcript], at 12CT 3286-3369) His interview with Dr. Rath also was played and admitted. (Peo. Exh. Peo. Exh. 26A [tape], 26B [transcript], at 12 CT 3389-3431) The prosecution also called Detective Stotz, Deputy District Attorney John Chessell, Dr. Rath, Detective Michael Lynn, and Sergeant Frederick Rodriquez,all ofwhom testified about the interrogation. (SRT 532-1198; Exhibits marked and admitted into evidence,at ACT 833; 9RT 1199-1205.) e. Prosecution Theory of the Case in Closing Argument As the foregoing makes clear, appellant finally confessed to sexual motivation for a prior incident -- but never confessed to sexual intent or attempt during the incident when he strangled and killed Melissa. The fact that the authorities were not able to extract a confession that appellant killed Melissa while trying to rape or sexually assault her undoubtedly shaped the prosecution theory 59 that the prior incident was cross-admissible to prove appellant’s intent to commit sexual assault on the morning he strangled Melissa. To that end, the prosecution contended: e On November 29, 1994, appellant strangled Melissa with the special circumstance that the murder occurred during a burglary, attempted rape, and attempted lewd act on a child (Count 1). Sometime two weeks or two months before the murder, appellant broke into the Middleton house, got into Melissa’s bedroom around midnight and attempted to sexually assault and strangle her (Counts 2, 3, 4). (See Information, at 1CT 20-22; Pro§ Closing Arg., at 30RT 4621-4641) e The evidence that appellant intended to rape or commit a lewd act on November 29 was (1) Melissa’s shorts were partially unzipped and (2) appellant’s semen was found on the side panels (but not the crotch) of a pair of her underpants, found in the trash can under the Lintons’ kitchen sink. (See Pro§ Closing Arg., at 30RT 4615, 4621, 4633-4634) e The evidence that appellant intended to rape or commit a lewd act before November 29 was the trial testimony of Melissa’s parents, Linda and Robert Middleton that on or about October 1, 1994 (the first cold evening ofthe fall, per Robert), two months before the homicide, Melissa screamed and told them someone had appeared in her bedroom andtried to choke her. (See Pro§ Closing Arg., at 30RT 4637) e The Middletons’ recollection is corroborated by the testimony of Joseph “Joey” Montero, who wasstaying with the Lintons andrecalled that about two weeks before the homicide, Robert stopped by the window to ask if Joey had seen anything. Montero further testified that Daniel arrived home, 60 out of breath and excited, shortly after Montero talked to Robert. (See Pro§ Closing Arg., at 30RT 4745-4746) e The Middletons’ testimony also is corroborated by the confession of appellant, after a day of interrogation, he had tried to “reap” [sic] Melissa two months earlier, “whatever” time the detectives said. His intent to commit rape or a lewd act on November29 is proved by the prior incident, which is a charged offense and also cross-admissible to prove his intent on November 29. (See Pro§ Closing Arg., at 30RT 4622, 4624-4625) f. Verdict After several days of deliberations, the jury found appellant guilty of all counts and found true the special circumstance — that appellant murdered Melissa while engaged in the commission or attempted commission of first degree burglary (Pen. Code, §§ 190.2(a)(17)(vii), 459); Rape (Pen. Code, §8§ 190.2(a)(17)(ii1), 261(2)); and Lewd Act by Force with a Child (Pen. Code, §§ 190.2(a)(17)(v); 288(b)). (12CT 3441-3442 [Minute Order]; 13CT 3589-3604 [Verdict]; 31RT 4885-4889.) The verdict indicates that the jury ultimately decided that appellant’s attempt to rape or sexually assault Melissa when he killed her was provedbyhis admission that he tried to rape her during the prior incident. The prosecution had succeeded in bootstrapping appellant’s confession about the prior incident onto the foundation for the special circumstance. 4. Governing Law and Application a. TheInterrogation Of Appellant In His Bedroom On the Evening Of November29, 1994 Was Custodial and Required Suppression Of His Responses. On November29, 1994, at approximately 8:00 p.m., Detective Glenn Stotz returned to appellant’s house with District Attorney William Mitchell. Appellant’s 61 parents were in the house. Appellant was told he was not under arrest and had no obligation to speak to Stotz and Mitchell. Stotz did not tell appellant that this interview was being tape recorded. Appellant agreedto talk. (Mot. to Supp., Def. Exh. D, at SSCT 67-68; RT 2756-2757; see RT 2756-2762, 2766-2767, 2847- 2848) The interrogation that followed between Stotz, Mitchell and appellant was custodial, but they did not read him his Miranda rights. The fruits of this first segmentof appellant’s interrogation should have been suppressed. In United States v. Craighead (9" Cir. 2008) 539 F.3d 1073, the Ninth Circuit in a case of first impression held that under certain circumstances, an interrogation by law enforcementofficers in a suspect’s own hometurns the home into such a police-dominated atmosphere that the interrogation becomes custodial in nature and requires Miranda warnings. (Id. at p. 1077, 1082-1089,cited ) In Craighead, several police officers executed a search warrant at the defendant’s home, looking for child pornography. At the same time, two detectives told the defendant that they would like to talk to him about the warrant, that he was not underarrest, that any statement he made would be voluntary, and that he would not be arrested that day regardless of what information he provided. (Craighead, supra, 539 F.3d at pp. 1078-1079) The detectives then directed the defendant to a storage room at the back of his house and proceededto interrogate him. They did not read him Miranda warnings. Other law enforcement personnel were also in the house, including the FBI. The defendanttestified the he felt he was not free to leave. During the interrogation, he admitted that he had downloaded child pornography on his computer. (/d. at pp. 1078-1079) The Ninth Circuit in Craighead held that under these circumstances, the interrogation in Craighead’s home was custodial, Miranda warnings should have been given, and all incriminating statements by Craighead during the interrogation should have been suppressed. (Craighead, supra, 539 F.3d at p. 1089) The court began,“In cases such asthis in which the suspecthas not formally been taken into police custody, a suspect is nevertheless considered ‘in custody’ for purposes of 62 Miranda if the suspect has been ‘deprived of his freedom of action in any significant way.’ [Citation] To determine whether the suspect was in custody, we first examine the totality of the circumstances surrounding the interrogation. [Citation] We then ask whether a reasonable person in those circumstances would ‘have felt he or she was not at liberty to terminate the interrogation andleave.’ [Citations]” (Craighead, supra, at p. 1082, citing Dickerson v. United States (2000) 530 U.S. 428, 444; Thompson v. Keohane (1995) 516 U.S. 99, 112; Berkemer v. McCarty (1984) 468 U.S. 420, 442, fn. 35, and cited by United States v. Bassignani (9"Cir. 2009) F.3d _.) The court in Craighead explained, “Applying this standard to an interrogation conducted within the home presents some analytical challenges, however, and presents an issue on which our court thus far has said little. The usual inquiry into whether the suspect reasonably believed he could ‘leave’ the interrogation does not quite capture the uniqueness of an interrogation conducted within the suspect's home. ‘Home,’ said Robert Frost, ‘is the place where, when you go there, they have to take you in.’ Robert Frost, The Death of the Hired Man, in The Poetry of Robert Frost 38 (Edward C. Latham ed., 1967). If a reasonable person is interrogated inside his own homeandis told heis ‘free to leave,’ where will he go? The library? The police station? He is already in the most constitutionally protected place on earth. To be ‘free’ to leave is a hollow right if the one place the suspect cannot go is his own home. [Citation]” (Craighead, supra, 539 F.3d at pp. 1082-1083) The court in Craighead added, “Our approach of using the ‘police- dominated atmosphere’ as the benchmark for custodial interrogations in locations outside of the police station is consistent with the Supreme Court's adaptations of Miranda to these types of locations. [Citation]” (Craighead, supra, 539 F.3d at p. 1083) The Court further commented, “The determination of whether an in-home interrogation was custodial ‘is necessarily fact intensive.’ [Citation] Although our opinion today ‘should not be interpreted as an exhaustive pronouncement,’ 63 [citation], reviewing the facts of Craighead's case and the relevant factors identified by our sister circuits, we conclude that several factors are relevant to whether the circumstances of Craighead's interrogation effected a police- dominated atmosphere: (1) the number of law enforcement personnel and whether they were armed; (2) whether the suspect was at any point restrained, either by physical force or by threats; (3) whether the suspect wasisolated from others; and (4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made. [fn omitted].” (Craighead, supra,at p. 1084) Based on the foregoing criteria, appellant found himself on the evening of November 29 in a police-dominated atmosphere in his own home, in his own bedroom. He was in the presence of two law enforcement personnel, an experiencedpolice officer and a seasoneddistrict attorney. He was notrestrained, but by virtue of the fact that he was alone with them in his room, he wasisolated from the rest of his family. He wastold he was not underarrest and did not have to talk, but no one told him that he was free to leave. (Mot. to Supp., Def. Exh. D, at 5SCT 67-68; RT 2756-2757) As the court in Craighead pointed out, where could he go that would be more private than his own room? (Craighead, supra, 539 F.3d at pp. 1082-1083) Under the circumstances, appellant was in custody, Detective Stotz and District Attorney Mitchell should have provided him with his Mirandarights, andall of his statements should have been suppressed. (/bid.) Appellant’s comments during this interrogation were extremely prejudicial because they provided the context and foundation of the prosecution’s theory of the case, to wit, that he had attacked and attempted to sexually assault Melissa several weeks [or months] earlier. Shortly into the interview, Stotz promised: Stotz: “Well, because, frankly, because she’s no longer living, y’know. Nothing would happento you if — if you had kissed her or grabbed heror touched her or even had sex with her. Y’know,at this point she’s — she’s no longerthe victim wouldn’t be her. She’s no longer 64 with us. So nothing would happen to you. Wejust need to know because — okay Linton: Okay ... Of course you know I’m not confessing to that.” (SSCT 34, 81) Later in the interview, Mitchell picked up on the assurances that Stotz had given appellant and made his “water-under-the bridge” promise for the first time. Mitchell commented that the authorities would ask people on the block who were at home that day to take a polygraph. (5SCT 85)° Appellant was very concerned that he would set it off because he was nervous. (SSCT 85, 86) Mitchell assured him that “if you and Melissa had... some problems sexually in the past and you’re trying to hide that, that might set it off, so you’d havetotell us about that ahead of time. What we’re interested in, the murder, of course, we don’t care abut anything else that happened, if you and Melissa, she stopped coming over here, ‘kay, that’s something that’s water under the bridge now.” (5) (SSCT 63, 86 [Emphasis added) Stotz claimed at the hearing on the motion to suppress that he agreed and truly believed that appellant would not get in trouble for the prior incident. (SRT 611- 618, 645-646; 6RT 741-745) At that point, appellant denied that he had anything to do with Melissa’s death. (SSCT 87) Based onthis false promise, appellant first told Stotz and Mitchell about a sleepwalking incident two or three weeks before, in which he wokeup outside in his underwear. From the context of the questions and answers, it is clear that before being recorded, appellant must have said something about the prior ° Stotz testified at the hearing on the motion to suppress that he and Mitchell said appellant did not have to take a polygraph. (SRT 625-627) Stotz also testified at the hearing that he said in effect that a lie detector test would clear appellant’s name. (SRT 631-636) Neither of these statements is in the interview transcript. 65 incident:’ Appellant then provided a seemingly innocuousstatement that several weeks earlier he woke up late at night, outside his house, wearing only his jeans and underwear: Stotz: Linton: Stotz: Linton: Stotz: Linton: Stotz: Linton: Stotz: Linton: Mitchell: Linton: Mitchell: Linton: “You were talking about, ah, you were talking about a couple of weeks ago, two, three weeks ago and I asked you about, ah you said you wokeupin the middle of the front yard. Every once in a while . . . [inaudible] Andthis particular time you wokeup in yourfront yard over by the garage, by the garage. No,it was by the door. In the drivewayor in the grass nextto the, right between you and ... The driveway. In the driveway? Between the grass and sidewalk. Okay. You wokeup and about what time did you say it was? [Inaudible] When you woke up out there you just had your underwear on? Yeah. Doesthat happen a lot? No... 7 Stotz testified he did not recall anything said that was not either in the report or the transcription. (4RT 541-543) 66 Stotz: Linton: Stotz: Linton: Stotz: Linton: Stotz: Linton: Stotz: Linton: So you said when you wokeup outside two weeks ago you had your pants on or just your underwear on? Pants and underwear. Oh, pants and underwear. How about shoes? No. Didn’t have any shoes on — how about socks? T don’t think so. Did you, did you havea shirt on? No. No? Two or three weeks ago when we’re talking about that — would that have been around the same time, the last time you talked to Melissa, you said you talked to her three, about three weeks ago, so? Probably,a little bit after that, yeah.” (SSCT 27-28, 52-53, 75-76) Thus by end of the evening of November 29, the police and the district attorney already had expressly promised appellant leniency, in that any prior incident with Melissa was “water under the bridge” and that he could not get in trouble for it; and then extracted a story from appellant in which he woke uplate at night, outside his house, wearing only his jeans and underwear. The authorities’ promise that evening foreshadowed and facilitated a Miranda violation the following morning, because appellant reported the sleepwalking only after assurance that it was not something for which he could get into trouble: It is likely that the improperly-induced sleepwalking discussion at Time | (the evening of November 29) created a misunderstanding in appellant’s mind that rendered invalid his subsequent Miranda waiverat Time 2 (the morning of November30). 67 b. The False Promise Made By Detective Glenn Stotz and Deputy District Attorney William Mitchell on November 29, 1994 in Appellant’s Bedroom That AnyPrior Sexual Encounter With Melissa Was “Water Underthe Bridge” Vitiated Appellant’s Purported Miranda Waiverthe Next Morning, November30, 1994. Appellant’s waiver of his Mirandarights after the police picked him up the morning of November 30, 1994 was neither knowing norintelligent. The waiver was induced the night before by statements by Detective Glenn Stotz and District Attorney Mitchell that appellant faced no legal consequences based on any prior sexual contact with Melissa, because whatever happened in the past was “water underthe bridge.” The Fifth Amendment guarantees that no person "shall be compelled in any criminal case to be a witness against himself," the privilege against self- incrimination. (U.S. Const., Amend. 5.) In Miranda v. Arizona (1966) 384 U.S. 436, the United States Supreme Court held that under the Self-Incrimination Clause of the Fifth Amendment, a person questioned by the police in custody or when he otherwise was deprived of his freedom of action in any significant way must first "be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence ofan attorney,either retained or appointed." (/d., at p. 444; accord, see Edwards v. Arizona (1981) 451 U.S. 477, 482.).) If an interrogation occurs without a knowing or intelligent waiver of these rights, the trial court must suppress any statement, admission or confession occurring during questioning of the accuse. (/d., at p. 444.) A statement provided during custodial interrogationis also not admissible unless the prosecution can demonstrate procedural safeguards were employedto protect the privilege against involuntary self-incrimination.(/d., at p. 444.) 68 Thus a proper Miranda waiver has two aspects: the defendant must knowingly and intelligently waive his rights, and must also voluntarily waive them. (Colorado v. Spring (1987) 479 U.S. 564, 573 [107 S.Ct. 851].) According to the United States Supreme Court, these are two distinct dimensions: "[FJirst, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequencesof the decision to abandonit. Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension maya court properly conclude that the Miranda rights have been waived. (Citations omitted.)" (Moran v. Burbine (1986) 475 U.S. 412, 421 [106 S.Ct. 1135], quoting Fare v. Michael (1979) 442 USS. 707, 725 [99 S.Ct. 2560].) As noted above, on the evening of November 29, the police andthe district attorney gave appellantthe false assurance that any prior sexual issue with Melissa was “water under the bridge.” That false promise caused appellant’s Miranda waiver the following morning, November 30, to be neither knowing nor intelligent. The waiver was not knowing, because appellant was misinformed and proceeding on the misinformation that if he waived his rights and talked about the prior incident, he could not get into trouble for it. The waiver was notintelligent, because appellant was misled into not fully comprehending the consequences of talking to the authorities about the prior incident. c. Appellant’s Confession on November30, 1994 was Involuntary Under the Totality of the Circumstances, Induced by the False Promise and Other Factors Creating an Atmosphere of Coercion. Appellant’s waiver of his Miranda rights also was not voluntary, rendering the resulting confession both involuntary and coerced. 69 The determination whether a waiver is "voluntary" is a separate inquiry from whether a waiver is "knowing" or "intelligent". Even when further communication is initiated by the accused, the burdenstill remains upon the prosecution to show that subsequent events support a finding that he waived the Fifth Amendmentright to have counsel present during the interrogation. (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1044.) To carry this burden, the waiver must be "found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.” (Ibid.; Edwards v. Arizona, supra, 451 U.S., at 486, n. 9.) If it can be demonstrated that an individual's will was overborne, the waiver is involuntary. (In re Shawn D. (1993) 20 Cal.App.4th 200, 208, citing Rogers v. Richmond (1961) 365 U.S. 534, 544 [81 S.Ct. 735]; People v. Sanchez (1969) 70 Cal.2d 562, 572; In re J. Clyde K. (1987) 192 Cal.App.3d 710, 720.) The police also are prohibited from employing coercive tactics in interrogating a criminal suspect pursuant to the Due Process Clause of the Fourteenth Amendment. Whenthe police violate this precept, the resulting suspect statement is involuntary and inadmissible. (Jackson v. Denno (1964) 378 USS. 368, 385-386; Brown v. Mississippi (1936) 297 U.S. 278; People v. Neal (2003) 31 Cal.4" 63, 79; People v. Smith (2007) 40 Cal.4" 483, 501.) If it can be demonstrated that the suspect's will was overborne by police tactics, the suspect’s waiver of Miranda rights also is deemed involuntary. (In re Shawn D. (1993) 20 Cal.App.4th 200, 208, citing Rogers v. Richmond (1961) 365 U.S. 534, 544 [81 S.Ct. 735]; People v. Sanchez (1969) 70 Cal.2d 562, 572; In re J. Clyde K. (1987) 192 Cal.App.3d 710, 720 [emphasis added]; Lynumn v.Illinois (1963) 372 U.S. 528, 534) Beginning with the decision in Brown v. Mississippi, supra, 297 U.S. 278 , the United States Supreme Court analyzed the admissibility of confessions as a question of due process under the Fourteenth Amendment. Under this approach, the Court examined the totality of circumstances to determine whether a 70 confession had been “‘made freely, voluntarily and without compulsion or inducement of anysort.’ [Citations].” The Court has continued “to employ the totality-of-circumstances approach when addressing a claim that the introduction of an involuntary confession has violated due process.” (Withrow v. Williams (1993) 507 U.S. 680, 689, citing, inter alia, Schneckloth v. Bustamonte (1973) 412 U.S. 218, 223-227; Arizona v. Fulminante (1991) 499 U.S. 279; and Miller v. Fenton (1985) 474 U.S. 104, 109-110.) A confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.]” (People v. Jimenez (1978) 21 Cal.3d 595, 611-612, 147 Cal.Rptr. 172, 580 P.2d 672, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17, 20 Cal.Rptr.2d 582, 853 P.2d 1037; see also Bram v. United States (1897) 168 U.S. 532, 542-543, cited with approval in Brady v. United States (1970) 397 U.S. 742, 753-754.) “The line to be drawn between permissible police conduct and conduct deemed to induce or to tend to induce an involuntary statement does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth, as represented by the police. Thus, ‘advice or exhortation by a police officer to an accused to “tell the truth” or that “it would be better to tell the truth” unaccompanied byeither a threat or a promise, does not render a subsequent confession involuntary.’ [Citation.]” (People v. Hill (1967) 66 Cal.2d 536, 549, 58 Cal.Rptr. 340, 426 P.2d 908.) “When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if in addition to the foregoing benefit, or in the place thereof, the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemedto render the statement involuntary and inadmissible. The offer or promise of such benefit need not be expressed, but 71 may be implied from equivocal language not otherwise made clear. [Citations. ]” (People v. Hill, supra, 66 Cal.2d at p. 549, 58 Cal.Rptr. 340, 426 P.2d 908; see also Hutto v. Ross (1976) 429 U.S. 28, 30; Malloy v. Hogan (1964) 378 U.S. 1, 7; People v. Neal, supra, 31 Cal.4"at p. 79; People v. Benson (1990) 52 Cal.3d 754, 778; In re Shawn D., supra, 20 Cal.App.4th at p. 210; People v. Esqueda (1993) 17 Cal.App.4" 1450, 1483; People v. Jiminez (1978) 21 Cal.3d 595, 611-612.) In this case, both the police and the district attorney repeatedly told appellant the glaring untruth that he faced no criminal consequence for any prior sexual encounter with Melissa. (See interrogation sequences above at 5SCT8,9, 34, 63, 81, 86.) In fact, the entire thrust of the interrogation was to get appellant to admit a sexual motive which would support a special circumstances murder prosecution. As set forth above, shortly into the interview on the evening of November29, with District Attorney William Mitchell at his side, Detective Stotz promisedthat appellant could not get in trouble for something that had happened between him and Melissa in this past: “water under the bridge.” Any reasonable person would understand that the police were making serious promises of leniency to appellant that they knew or should have known they could not keep. Furthermore, the assurance that anything appellant admitted regarding his intent during the earlier event, whetherit actually occurred or not, was “water under the bridge” and therefore of no consequence to appellant, directly let to appellant’s statement that he intended to “reap” Melissa during that earlier incident. The actions of the police and district attorney the following day resulted in an involuntary confession. (1) 8:45 a.m.: Questioning by Detectives Glenn Stotz and Michael Lynn,Including Repeated Assurances of Leniency On November30, 1994, at 8:45 a.m., Detectives Lynn and Stotz picked up appellant at his home to take him back to the station for a polygraph test. (SRT 550-551) While en route to the police station, appellant started crying, said he 72 wanted to confess and was broughtto the station for the interview. (SRT 550-551, 654-655 6RT 739-740; 9RT 1064-1068) Lynn was alone with appellant for 20 minutes, while Stotz got the interview room ready. During that time, Lynn filled out forms. Appellant asked why Lynn waslaughing at him, and Lynnsaid he was not. Appellant repeated that he was. There was no further conversation. (9RT 1066-1068) Before the tape was turned on, Stotz told appellant that it would be turned on and that he would be read his Miranda rights. Appellant asked some questions for five to ten minutes. Stotz was in contact by telephone with Mitchell and spoke to him once in the morning and once in the afternoon to discuss strategy. (SRT 550-551; Peo. Exh. 3 at SSCT 4; Def. Exh. C, at SSCT 17-18) Stotz read appellant his Miranda rights, and appellant signed a form stating that he understood his rights and wished to talk to the police. (SSCT 4) Almost immediately, the police and district attorney interrogators repeated the false assurance that appellant faced no criminal exposure for any prior incident with Melissa, rendering in admissible his subsequent comments, admissions, and ultimate confession. (People v. Jimenez (1978) 21 Cal.3d 595, 611-612, 147 Cal.Rptr. 172, 580 P.2d 672, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17, 20 Cal.Rptr.2d 582, 853 P.2d 1037; see also Bram v. United States (1897) 168 U.S. 532, 542-543, cited with approval in Brady v. United States (1970) 397 U.S. 742, 753-754.) At the same time, the authorities began to conflate what Melissa’s parents had told them about a nightmare two months earlier, with the sleepwalking incident appellant described as having occurred twoor three weeksearlier: Stotz: “Okay,... like I said, you’re not going to get in trouble for what happened two weeks ago, okay? Linton: Whynot? Stotz: Well becauselike I told you last night, that’s that’s water underthe bridge. 73 Linton: That’s until today. Stotz: No,that’s got nothing to do with it. I just need to know why she would see you and why she would run away from you screaming like that and it’s kind of odd for a neighbor who lived there for six years...” (SSCT 8-9) The above sequence is noteworthy for several reasons. It is the first time that an interrogator posed a question based on the assumption that Melissa’s nightmare was in fact appellant’s sleepwalking incident. Second,appellantdid not answer the question but rather asked why he wouldnotbe in trouble for it. And third, Stotz assured appellant once again that whatever happened (if something happened), it was “‘water underthe bridge.” (SSCT 8-9) Believing that the nightmare and the sleepwalking were one and the same, the authorities set out to persuade appellant to admit a sexual motivation for one, the other, or both. Ultimately, they only persuaded him to admit a sexual motivation for the prior incident, but it is important to recognize the length, sequence, and duration of the interrogation to understand how they got from Melissa’s nightmare and appellant’s sleepwalking to a prior incident in which he got into her bedroom in the middle of the night and attempted to sexually assault her. (2) 9:45 a.m.: Questioning by Detective Glenn Stotz, Including Repeated Unsuccessful Attempts to Elicit Sexual Motivation As To Both Incidents At 9:45 a.m., Stotz turned on the tape recorder. (See 18RT 2780-2781) Appellant was read his rights and signed the San Jacinto PD-5 waiver form. (Peo. Exh. 3 at SSCT 4.) Appellant said he did not know Melissa was home the previous morning. (4CT 837) At around 10:00 a.m., he went into the Middleton house to look around. (4CT 837) Melissa saw him and ran to her parents’ room. (4CT 837) Shetried to call her parents and he pushed her down away from the phone. (4CT 837-838) Shestarted to scream, and he grabbed her. (4CT 838-839) 74 He did not mean to kill her. He just wanted her to “fall unconscious” and “didn’t know that it would go that far.” She struggled and let out a small yelp. (4CT 839) He wrapped a cord from a stereo headphonearoundherneck, and it broke. He put his hands around her neck. (4CT 839-840) Everything happened very quickly and he thought he was in the house for about ten minutes. (4CT 840-841)° Atthis point, Stotz asked appellant if he raped Melissa after she was dead: Stotz: “You didn’t rape her. Linton: No I didn’t. [] Wouldn’t you have found something in there? Stotz: Well, to be honest with you, the coroner’s office checksall that. That’s something they’ll do probably tomorrow,okay. Linton: I think you would have found it by now. Stotz: Did you do anything after she was dead sexually [sic]? Linton: I don’t think so. Stotz: Okay, let me ask you this, do you know what masturbating is? Linton: I didn’t do that * At an earlier point, appellant said it seemedlike an houruntil Melissa stopped moving. However, it appears that he was confusing the time it took for Melissa to die with the time it took for the police to arrive at his house the following morning: Linton: “T don’t know, it seemed like an hour. Stotz: It seemed like an hour?” Linton: But it wasn’t. It seemedlike a long time becauseit, I don’t know,it seemedlike a long time I had to wait for you. Stotz: Had to wait for me? Linton: To get to my house, this morning.” (4CT 841) 75 Stotz: You didn’t do that at all? Okay. We found her, her shorts were unzipped and unbuttoned, do you know how they gotlike that? Linton: Maybe she was changing them. Stotz: Maybeshe wasor she was? Linton: I saw her in the roomandshe was,it looked like she was, looked like she was changing, putting jeans on or something, putting some clothes on and she was almost done.” (4CT 841-842) After a few more questions, Stotz asked: Stotz: “Okay. Did, did you and her, did you and her ever have sexualrelationshipsat all? Linton: No. Stotz: Did you ever have sex with her? Linton: No I didn’t Stotz: The thing two weeks ago, you didn’t have sex with her? Linton: No.” (4CT 842) With respect to the incident alleged to have occurred two weeksearlier, Stotz asked: Stotz: “Okay. Did you just go into the house and go up to her room,is that what happened. Or was.... Linton: No,I just kind of looked around,I didn’t. . . 76 Stotz: Okay, what happened? Did you, what happened two weeks ago? Did youtry to have sex with her? Linton: No, I was just looking around and she woke up and she started to scream. Stotz: And then what did you do? Linton: I grabbed her by the throat and while she gasping for breath I tried to leave.” (4CT 843) (3) 10:40 a.m.: Questioning by Detective Glenn Stotz and Deputy District Attorney John Chessell, Including More Unsuccessful Attempts to Elicit Admission of Intent to Commit Sexual Assault At 10:40 a.m., Deputy District Attorney John Chessell entered the room and joined in the interrogation. (4CT 844-845; 6RT 788-791) Chessell did not recall any conversation in the 20-second delay between tapes. (6RT 828-830) When the tape was turned off, appellant stated in response to questions about sexual assault, “Won’t forensics tell you everything you want to know?” (7RT 886-888) Chessell denied advising the officers to continue to interrogate appellant until appellant divulged a sexual interest in Melissa or to tell appellant he would not get in trouble for past conduct with Melissa. (6RT 836-838) After a few more minutes of questioning, Stotz again asked: Stotz: “Okay now,it’s important for us, it’s important for her family that to know, you didn’t sexually assault herat all? Linton: No I didn’t.” (4CT 847) Appellant denied that Melissa wanted a boyfriend or anything like that. He said they used to wrestle and roughhouse, but that she washis sister’s friend, not his. (4CT 848) 77 Chessell returned to the alleged prior incident and appellant repeated what he had told Stotz earlier. He said he was half asleep during the incident. (4CT 848-851) Hesaid he had a key to the Middleton’s house and had used it to get in the previous day and then thrownit in the trash. (4CT 851-852) Stotz repeated his earlier questions about whether appellant tried to have sex with Melissa during the alleged prior incident: Stotz: “Do you think you, do you, you wentin the house a couple of weeks ago and yesterday to maybefool around little bit, try to have sex with Melissa? Linton: I didn’t know she was home,I, I’m honest about that. I, I did not know she was home. Stotz: But you knew she was home two weeks ago? Linton: Yeah. Stotz: Do you think two weeks ago you went in the houseto try to have sex with her? Linton: No.” (4CT 852-853) Following that, Chessell questioned appellant about the events of the previous day, and appellant repeated what he had told Stotz. (4CT 852-856) Appellant commented, “You'll find her body, you know there won’t be, there’s nothing in her body...I didn’t do anything, and you’ve been asking mea lot of questionslike that.... I didn’t molest her.” (4CT 863) Chessell then asked appellant, again, whether he had sex with Melissa or thought aboutit: Chessell: “Okay. You didn’t have sex with her? Linton: No,I didn’t. Chessell Okay. Did youat any time think about having sex with her? 78 Linton: Chessell: Linton: (ACT 863) No,not really. I was too busyjust, I wasreally scared. Had you thought about having sex with her at some point? Notreally.” Stotz stepped in again and questioned appellant as to how Melissa’s shorts came undone: Stotz: Linton: Stotz: Linton: Stotz: Linton: Stotz: Linton: Stotz: Linton: (ACT 863-864) “Daniel, did you try to take her pants off during the struggle? No. How would I be able to choke her and take off her pants at the same time? Did you maybetry to take her pantsoff first and then and then chokedher afterwards? No. It’s important youtell us the truth. I didn’t do anything to her. Okay. But did youtry to though? Notreally, no. I was just busy chokingher. How about before you choked her though, did youtry to takerher,lift her t-shirt up or try to take her pants off? We movedarounda lot in the bedroom,I was trying to make her quiet but, no, I didn’t.” 79 After a few more questions from Chessell, appellant admitted that he unzipped Melissa’s pants, but only to scare her so that she would not say anything. (4CT 864-865) Chessell asked again, “You weren’t going to have sex with her?” Appellant responded, “I wasn’t going to have sex with her. I was just doingit to scare her so she wouldn’t say anything.” (4CT 864-865) Stotz then asked if appellant tried to take his own pants off, and the following ensued: Stotz: “At any time, Daniel, during the time you wereat the house, did you ever unbutton your pants or unzip your pants? Linton: No. Stotz: You never exposed yourself to her? Linton: No.” (4CT 866) A few minutes later, both Chessell and Stotz questioned appellant again about sexual motivation: Stotz: “Did you say anything to herlike that you were going to if she didn’t shut up or that you were going to have sex with her or that you were going to rape her to make her, to make her believe that you were going to have sex with her. Did youtell her, ‘I’m going to rape you? Linton: I didn’t say that, I didn’t say I was going to rape her. I said, ‘Just be quiet, PIl. Pll leave. Don’t say anything... Stotz: But did you say anything pertaining to having sex with her to scare her? Linton: No,I was going to but I decided notto. Chessell: What, what were you going to say? 80 Linton: I don’t know whatI was going to say, I was just going to try and scare her so she wouldn’t say anything so I could leave, I didn’t want to bother her anymore. Chessell: Well did you say somethingto herlike ‘all I want to do is make love to you’, or ‘just have sex with me and PU go.’ Linton: No,I didn’t say anything like that, I didn’t say anythinglike that. Stotz: Is it safe to say that we have what happenedyesterday and then we have two weeksago andand, did youjust, were you kind of infatuated with Melissa? I mean... (28) Linton: Notreally.” (4CT 871-872) (4) 12:45 p.m.: Questioning by Craig Rath, Ph.D., Prosecution Psychologist, Including Yet Another Unsuccessful Attempt to Elicit Admission of Intent to Commit Sexual Assault At 12:45 p.m., Dr. Rath interviewed appellant. (SRT 576-578) His handwritten notes (Def. Exh. H, at SSCT 126-134), letter to the district attorney (Def. Exh. I, at SSCT 135-143), the interview tape (Def. Exh. J, at SSCT 90-125) and a transcript of the tape (Def. Exh. G, at SSCT 89-125) were marked and entered into evidence. (8RT 1019-1023) He did not re-read appellant’s Miranda rights. Dr. Rath’s interview did not yield any additional admissions by appellant. It is significant, however, for two reasons. First, it should be viewed as an overall strategy of “softening up” appellant to confess to the prior incident and harboring a sexual intent. While Dr. Rath never repeated the already oft-quoted “water under the bridge” mantra, he did contribute to the coercive atmosphere by 81 repeatedly broaching the subject of appellant’s sexual motivation and by the very fact that he was a mental health professional. Second, his interview presents a related issue that further underscores the fundamental unfairness of the November 30 interrogations. Dr. Rath administered the Minnesota Multiphasic Personality Inventory (MMPI) to determine appellant’s psychological functioning. Duringthetesting, the interview tape was turned off. (8RT 914-915, 1026-1028) He concluded that appellant was socially introverted and uncomfortable with peers, chronically depressed with a flat affect, lacked social skills, and suffered from Attention Deficit Hyperactivity Disorder (ADHD). (8RT 933-937, 964-968, 974-975) He further concluded that appellant was not a pedophile or a sociopath and did not have a social personality disorder. (8RT 943-944, 990-991) Dr. Rath interviewed appellant about the offense and a number of psychological issues, including his sexual intent towards Melissa: Dr Rath: “Okay. Now I’m goingto talk about a sensitive area because the topic is going to come up. Andthe topic has to do with sex. And the topic is come up because the victim’s pants were found unbuttoned and unzipped and so on. They’re trying to figure out what was going on there. Howdid her pants get unzipped and unbuttoned. Linton: I wastrying to scare her so she can quiet[sic].” (SSCT 120) Dr. Rath: “Did you ever have any sexual fantasies about the victim? Linton: No. Dr. Rath: Even when you werewrestling on the bed? Linton: No. ... Dr. Rath: So you were too scare [sic] to become aroused evenif you... Linton: Evenif I did find herattractive, yeah. Dr. Rath: Does that mean you kind of did find herattractive? 82 Linton: No,not really.” (SSCT 124-125) Dr. Rath confirmedin his testimony that appellant repeatedly denied sexual intent and said he unzipped Melissa’s pants to scare her into being quiet. (8RT 1007- 1012) When the tape was turned off, Dr. Rath told appellant that the interview would not be confidential; that someone else might read it; that he did not have to answer any questions; and that he could terminate the interview at any time. (8RT 1035-1036) The interrogation process would have caused appellant to feel distress and if he knew the death penalty was pending, it would increase his stress. (7RT 949-954) Depression can affect memory and cause confusion. (8RT 978-980) Appellant said he was scared and Rath responded, “I'll get to that,” meaning he would discuss the topic later. Rath was not saying he would help alleviate the fear. (8RT 997-999) (5) 3:40 p.m.: Resumed Questioning by Detective Stotz and Sergeant Frederick Rodriguez, Including “Good Cop-Bad Cop” Technique and Further Unsuccessful Attempt to Elicit Admission of Intent to Commit Sexual Assault At 3:40 p.m., Stotz and appellant returned to the interview room. (4CT 873) Appellant still had not admitted a sexual interest in Melissa. (6RT 775-776) Prior to continuing the interview, Stotz talked to Mitchell and said he would continue to attempt to get appellant to admit a sexual interest in Melissa. (SRT 592-593) At 3:45 p.m., Sergeant Rodriguez joined them. (SSCT 220; 4CT 875; 5RT 590-591) Lynn and Stotz had kept Rodriguez apprised during the day. (9RT 1117- 1119, 1124-1125, 1138-1141) At this point, Stotz becamea little more aggressive in his questioning while Rodriguez was gentler: (SSCT 220-232; 6RT 775-776) 83 As Stotz continued to question appellant, Rodriguez soothed: “You know, Daniel, what ... we’re doing now is you’vegot all this stuff that’s in your mind and I know, Detective Stotz knows, and you know you just want to get it off your chest... (5SCT 232) Shortly after that, after appellant described how hestrangled Melissa and she went unconscious very quickly, the following question-and- answerensued: Stotz: “And then finally when she went unconsciousshejust kindof fell off the foot of the bed and then you proppedherback upinto sitting position, right? Linton: Uh huh Stotz: Why did you do that? Linton: I don’t know” Atthis point Rodriguez stepped in again and commendedappellant for the “noble”act of propping up Melissa’s corpse shortly after he strangled her: Rodriguez: “Well, ... I think I think it was kind of a noble thing for your[sic] to do actually? Linton: Whyis that? Rodriguez: Well, she was on the ground, you didn’t wanther to be on the ground so you proppedherup sitting down. That’s just my own personal feeling.” (5SCT 222-223) Rodriguez recalled also that if appellant needed to use the bathroom, he would have been allowed to do so, accompanied by an officer. QRT 1088-1090) He also was offered food and drink, but Rodriguez did not recall if appellant ate anything. (SSCT 232; 9RT 1094-1095) Stotz told appellant, “The sooneryoutell methetruth, the sooner I’1l turn this machine off and the sooner we’lI all be on our way.” (QRT 1147-1148) 84 Towards the end of the interview, Stotz accused appellant again, “I think that, at least in my mind, I think that you had sex with her.” Appellant again denied knowing Melissa was home, having sex with her, masturbating, or putting his hands down her pants. Stotz asked if he tried to rape her during the earlier incident, and appellant said no. (4CT 880) (6) 4:00 p.m.: Appellant’s Stress-Compliant Answerto “Tell me the truth, and I?ll turn the machine off [sic]: “I tried to reap her.” A stress compliant false confession occurs when a suspect “decides to confess as a reaction to the stress of the interrogation.” (Lunbery vy. Hornbeak (E.D. Cal. 2008) — ~F.Supp. __ [slip opn. at p. 10].) It is a “well recognized type of confession,” and “[t]his type of false confession comes about when persons who are exceptionally vulnerable to interpersonal pressure and are unable to cope with the intensity of even a non-coercive interrogation are put in a position from which it appears to them that the only way to end the intolerable pressure they are experiencing is to comply with the interrogator’s demand for a confession.” (Lunbery v. Hornbeak, supra, __ F.Supp. at p.__ [slip opn.atp. 10] The record gives rise to a strong inference that appellant finally confessed to sexual motivation, not because it was true but rather to end the intolerable pressure of the interrogation. By 4:00 p.m., the interrogators had accused appellant of sexually assaulting Melissa at least 50 times. (See SSCT 66-232) Six different people — three law enforcementofficers, two district attorneys, and a psychologist ~— had been questioning him on andoff since the previous afternoon, and nearly ” The conceptofa stress-complaintfalse confession wastestified to in Lunbery by Dr. Richard Ofshe, one of the two false confession experts proffered by the defense in this case and rejected bythetrial court. (Lunbery v. Hornbeak, supra, ____ F.Supp. at p.___ [slip opn.at p. 10] (See argument, post.) 85 without a break since early that morning. At this point, appellant finally confessed, not to a sexual assault the day before, when he strangled Melissa, but rather to intent to sexually assault her during the purported incident two weeks or two monthsearlier. During the last few minutes of the interview, Detective Stotz said, “The sooner you tell me the truth, the sooner I’ll turn this machine off and the sooner we'll all be on our way.” (4CT 881) Detective Rodriguez added, “we know you are nottelling us the entire truth and wefeel, okay, that if you tell the entire truth, you'll feel better.” (4CT 881) The following ensued: Rodriguez: “Do you want a soda or something? Linton: No. Rodriguez: Do you want a glass of water? Linton: No. Rodriguez: Are you hungry? Linton: No. Rodriguez: Okay Linton: So I haveto sayit? Stotz: I want youto tell me the truth. Linton: Whywith the tape on? Linton: So I haveto say it out loud? Stotz: Yes, you do. Linton: I tried to reap her. [sic] Rodriguez: When wasthis? 86 Linton: Stotz: Linton: Stotz: Linton: Stotz: Linton: Rodriguez: Linton: Rodriguez: Linton: Rodriguez: Linton: Rodriguez: Linton: Rodriguez: Linton: Like the very first time like two months ago whatever wheneverit was. Okay. Tell me what happened. I didn’t do anything though. Okay, well how far did you get with her? Not very far at all. No where. Did you go there todayto try to rape her? No, I didn’t know she was there. I’m honest aboutthat. Okay, so you tried to rape her —- how manytimes Once,and after that I didn’t ever try it again. Okay, so you tried to rape her, what do you meanbytried to rape her? Did you take her pants off? No,I didn’t. Did you take your pants off? No. Did you have a boner? No. Okay then how canyoutry to rape her with without any of those things? Did you think it or did you actually do something? I just think about it but then like when I, when I was going through with it, I decided not to cause I was, I just, it was wrong,I didn’t wantto, I changed my mind. 87 Stotz: Linton: Stotz: Linton: Stotz: Linton: Stotz: Linton: Rodriguez: Linton: Rodriguez: Linton: Rodriguez: Linton: Rodriguez: Linton: Did a thought cross your mind yesterday when you wentin there and found her there? Obviously it must have crossed your mind. Initially, but I decided notto. Okay, how farinto it? Just the zipper andI just, no. So you didn’t try to put your hands downherpants? What? ... No I didn’t. No I didn’t. So the thought crossed your mind of raping her just for a moment? Just for a split second, yeah. Okay, why did youfeel that thought, or why did you think that thought to rape her? I don’t know. Do youthink it would have felt good for you? No, I don’t think it now. Well the, so, it came across a split second that you thought about raping her but it wasafter... Yeah, but I totally disdained the thought after... Disdained the thought, I didn’t finally want that... I didn’t want to do it... I changed my mind. You changed your mind? Okay. Totally. 88 Stotz: Linton: Stotz: Linton: Rodriguez: Linton: Rodriguez: Linton: Rodriguez: Linton: Let me ask you something, had she not, had she not put up such a fight, had she not screamed, do you think you would have continued, raped her? No I don’tthink so. You don’t think you would have raped her? No, I don’t think I would have. I had a chancethefirst time, didn’t I? Have you everkissed her? No. Did you kiss her yesterday? No. Did you ever wantto kiss her? I don’t think so.” (4CT 881-884; highlighting added) Shortly after 4:00 p.m., the interview concluded and appellant was booked. (6RT 692-694; ORT 1088-1090) At Rodriguez’s direction, appellant telephoned his parents. (QRT 1091-1093) The police never persuaded appellant to admit that he was attempting to rape Melissa when hekilled her, but as evidentfrom the last sequence of questioning, they did extract a confession as to the prior incident that he “tried to reap [sic] her ... two months ago... whatever ... whenever.” Based on the foregoing facts, appellant’s “confession” was based on a desire to end the interrogation rather than admit the truth, a classic stress compliantfalse confession. (Lunbery v. Hornbeak, supra, __ F.Supp. atp.__ [slip opn.at p. 10] 89 (7) Other Circumstances Rendering the Interrogation Involuntary Appellant’s confession also was involuntary based on surrounding circumstances and characteristics about appellant that rendered the situation additionally unfair and its fruits a denial of due process. A long, protracted interrogation can render the resulting confession involuntary. (Ashcraft v. Tennessee (1944) 322 U.S. 143, 153-154 [36 hours, in relays]; Reck v. Pate, 367 U.S. 433, 441; Doody v. Schriro (9" Cir. 2008) 548 F.3d 847, 867 [12 hours, overnight].) Here the authorities interrogated appellant for an entire day, not counting the evening before. Theyalso interrogated him in relays or tag-teams;first one detective, then the district attorney, then a psychologist chosen and instructed by the district attorney; then an additional detective. As noted above, they asked appellant over 50 times whether he had a sexual interest or motivation towards Melissa. (See 5SCT 66-232) Detective Stotz and Deputy District Attorney Chessell spent the entire morning of November 30 trying to get appellant to admit that he either had sex with Melissa, or wanted to. (4CT 837-872) When appellant consistently denied the accusation, they brought in a clinical psychologist, Dr. Craig Rath, to try to get him to admit to a sexual interest in Melissa and of raping or attempting to rape her. (SSCT 90-125) Whenthat did not yield results, at 3:40 in the afternoon, Stotz reappeared with Sergeant Rodriguez, with Stotz acting as the “bad cop” and Rodriguez as the “good cop.” (5SCT 220-232; 6RT 775-776) While Rodriguez soothed, “the sooner you tell the entire truth, you’ll feel better” (4CT 881), Stotz continued to accuse appellantandfinally said, “The sooner youtell me the truth, the sooner I'll turn this machine off and the sooner we’ll all be on our way.” (4CT 881) Other characteristics and surrounding circumstances also may render a defendant more vulnerable to improper coercion. Such characteristics may include the fact that the defendant is young and/or immature (Haley v. Ohio (1948) 332 90 U.S. 596, 599-601; Reck v. Pate (1961) 367 U.S. 433, 441-442 [defendant 19 and mentally retarded]; Doody v. Schriro, supra, 548 F.3d at p. 866-867 [defendant age 17], citing United States ex. rel. Lewis v. Henderson (2™ Cir. 1975) 520 F.2d 896, 901, “noting that the twenty-two-year-old suspect had‘little prior experience with police methods, thus rendering him particularly susceptible to police pressure’” (Doody, supra, at p. 867).) Appellant was very young for his age: He was 20 years old but looked 15. (SSCT 128) Hestill lived with his parents. (SSCT 95, 100) He had neverhad a girlfriend. (SSCT 111) He did not work other than to watch his younger sister Stacy when his parents were working. (SSCT 99-101) He wasnot going to college. He did not have a driver’s license. (See SSCT 77, 128) A suspect’s inexperience in the criminal justice system may cause him to be more vulnerable to coercive interrogation techniques. (Stein v. New York (1953) 346 U.S. 165, 185-186; Doody v. Schriro, supra, 548 U.S. at p. 867; People v. Spears (1991) 228 Cal.App.3d 1, 27-28.) ) Appellant had no criminal history and thus no experience with the criminaljustice system. (SSCT 101-102) A lack of education and/or learning problems also may contribute to a suspect’s vulnerability to coercive interrogation techniques. (See Arizona v. Fulminante (1991) 499 U.S. 279, 286 [defendant of low average to average intelligence]; uneducated (Arizona v. Fulminante, supra) 499 U.S. 279, 286 [defendant dropped out of school in the fourth grade]; Clewis v. Texas (1967) 386 U.S. 707, 713; Ashcraft v. Tennessee, 322 U.S. at pp. 144, 148, 153-154 [defendant had a grade school education]; and see Stawicki v. Israel (7th Cir., 1985) 778 F.2d 380, 382-384.) Appellant may have possessed normal intelligence but he had a history of learning disabilities and had been in special education classes in elementary school. (SSCT 96; RT 1004-1006) Physical or mental health issues may make a defendant more susceptible to coercion. (Greenwald v. Wisconsin (1967) 390 U.S. 519, 520-521 (per curiam); United States v. Hack (10th Cir. 1986) 782 F.2d 862, 866; Fikes v. Alabama (1957) 352 U.S. 191, 196.) Appellant suffered from depression, anxiety, and headaches. 91 (5SCT 112-113; RT 943-944) Hehad been diagnosed with attention deficit disorder. (5SCT 97; RT 964-968) He may have had a dissociative disorder. (RT 983-986) He had suffered physical abuse from his father. (SSCT 92-95, 98) He was experimenting with marijuana and methamphetamine. (S5SCT 109-110) When Detective Stotz picked him up the morning of November 30, appellant was distraught andstarted crying. (See 5SCT 232; 9RT 1094-1095) Fatigue or hunger also maycausethe interrogation atmosphere to be coercive. (Leyra v. Denno (1954) 347 U.S. 556, 561; United States v. Wauneka (1981) 842 F.2d 1083, 1087-1088) Appellant had little to eat or drink all day November 30. (See 5SCT 232; 9RT 1094-1095) 5. Conclusion The authorities decided early in the investigation that in order to make him eligible for the death penalty, they needed to establish that appellant strangled Melissa to death while attempting to sexually assault or rape her. To that end, they utilized a textbook littany of coercive interrogation techniques to extract a confession from appellant, including false promises of leniency, psychological manipulation, and sheer dogged insistence on sexual motivation denied by appellant at least 50 times over an entire day of relentless questioning. They constructed a hypothetical framework in which they assured appellant that if he picked “Door Number One,” e.g., that he got into Melissa’s room andtried to rape her in an earlier incident, he would not be prosecuted for what was behind “Door Number Two,” the special circumstance that subjected him to the death penalty. Their assurances were readily believed by appellant, who was young, immature, had learning disabilities and mental health issues, and had never been in trouble with the law. (See 4.b.(7), ante.) Under these circumstances, there is a grave risk that appellant waived his Miranda rights and confessedto the prior incident, based on the mistaken belief in the authorities’ promise that he could not be prosecuted forit, in order to put an 92 end to a relentless and exhausting interrogation. Thetrial court erred in denying the defense motion to suppress appellant’s confession. (Miranda v. Arizona (1966) 384 U.S. 436; Jackson v. Denno (1964) 378 U.S. 368, 385-386; Brown v. Mississippi (1936) 297 U.S. 278; Arizona v. Fulminante (1991) 499 U.S. 279.) 6. Prejudice n Arizona v. Fulminante (1991) 499 U.S. 279, 296, the United States Supreme Court observedthat, “A confession is like no other evidence. Indeed,‘the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him.... [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so muchso that we mayjustifiably doubtits ability to put them out of mind evenif told to do so.’ [Citations] While some statements by a defendant may concern isolated aspects of the crime or may be incriminating only whenlinked to other evidence, a full confession in which the defendant discloses the motive for and means of the crime may tempt the jury to rely upon that evidence alone in reaching its decision.” (Arizona v. Fulminante, supra, 499 U.S. at p. 296.) In the case of a coerced confession, the risk that the confession is unreliable, coupled with the profound impact that the confession has upon the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.” (Arizona v. Fulminante, supra, at p. 296.) Reviewing courts are required to exercise extreme caution in determining whether the introduction of an involuntarily-obtained statement is "harmless" under that standard; the rule is that "[i]mproper admission of a defendant's statement warrants reversal unless [the reviewing court] can conclude the admission of such evidence was harmless beyond a reasonable doubt." (People v. Allen (1992) 9 Cal.App.4th 1619, 1624.) 93 Where such federal constitutional error has occurred, the "burden shifts to the state 'to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."" (Chapman v. California (1967) 386 U.S. 18, 24; People v. Barajas (1983) 145 Cal.App.3d 804, 810.) Justice Mosk provided a helpful analysis of Chapmanerror in his dissent in People v. Sims (1993) 5 Cal.4th 405, a decision concerning a Miranda violation not apposite to this case. Justice Moskbeganby noting that Chapmanerrors are "intolerant and unforgiving oferror." (Id., at p. 474.) He then quoted the United States Supreme Court's own clarification ofwhat it meant by the Chapman standard of review: "As the Chapman court itself declared: 'The California constitutional [harmless error] rule emphasizes a ‘miscarriage of justice,’ but the California courts ... have neutralized this to some extent by emphasis, and perhaps overemphasis, upon the court's view of ‘overwhelming evidence.’ We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut [citation omitted]. There we said: 'The question is whetherthere is a reasonable possibility that the evidence might have contributed tothe conviction'."" (People v. Sims, supra, 5 Cal.4th at p. 474; italics in original, emphasis added.) Justice Mosk continued: " . as explained, Chapman effectively prohibits an appellate court from indulging in its own views as to the weight of the improperly admitted evidence. Rather, it requires the court to concentrate on the improperly admitted evidence from the perspective of the jury." (/d., at p. 476;italics in original.) In short, when reviewing a conviction under the Chapman standard of prejudice, an appellate court must not consider whether there is sufficient evidence to sustain the conviction absent the complained-of evidence; rather, "[t]he Chapman test is whether it appears ‘beyond a reasonable doubtthat the error complained of did not contribute to the verdicts obtained'." (/d., at p. 475; Mosk, J. in dissent.Italics in original; emphasis added.) 94 The state cannot meet its burden of establishing the error was harmless beyond a reasonable doubt under Chapman. Without appellant’s confession about the encounter with Melissa two monthsearlier, the prosecution had nothing more than a homicide case that appellant strangled Melissa to death. The only evidence other than appellant’s confession that remotely would support a finding that appellant killed Melissa during a sexual assault was the fact that her pants were slightly unzipped and a pair of her underpants (stained on the side with semen but not in the crotch) were found in the Lintons’ trash can. (See Prosec. Closing Arg., at 30RT 4615, 4621, 4633-4634) This evidence alone was insufficient to convince a jury beyond a reasonable doubt that appellant killed Melissa in the course of trying to rape or assault her. With introduction of the appellant’s confession, on the other hand, the prosecution was able to make its argument that appellant’s attempt and intent to commit rape or a lewd act on November 29 was proved by the prior incident, which is a charged offense and also cross-admissible to prove his intent on November 29. (See Pro§ Closing Arg., at 30RT 4622, 4624-4625) The only other evidence about the prior event was the testimony of the Middletons that they thought Melissa had a nightmare (See 17RT 2653, post.) and that of Joey Montero, if believed, that appellant was outside and ran in out of breath the same night. (21RT 3127-3133, 3153-3154.) a. Deconstructing Prosecution Theory of the Case: How Melissa’s Nightmare Morphed Into Prior Sexual Assault and Rape-Murder Special Circumstance While it ultimately voted to convict, the jury’s comments and questions during the deliberative process bring to light a healthy skepticism about the prior 95 act evidence. (See post.) For that reason,it is useful first to analyze the origin, progression and developmentofthat evidence, from its inception. (1) Genesis: Melissa’s Nightmare The prosecution’s theory appears to have had its genesis in the recollections of Melissa’s parents, Robert and Linda Middleton, testified to at trial.'° The Middletons both testified that two months before the homicide,'! Melissa screamed for them in the middle of the night. She was crying and upset, and said someone had comeinto her room andtried to choke her. (17RT 2564-2565, 2588- 2589)'* There were no marks on Melissa’s neck. (17RT 2603) Robert put on his clothes and walked outside. (17RT 2565) It was a weeknight, about 2:30 a.m., and thefirst cold night of the fall. (17RT 2588, 2593) He did not see appellant. (17RT 2593) He saw Joseph “Joey” Montero,the friend of appellant and houseguest of the Lintons, through the window in the Lintons’ house, working on the computer. (17RT 2592, 2603) Robert told Montero that his daughter thought she saw someone in the house and asked Monteroif he had seen anyone around. Montero said no. (17RT 2593)? '© There is verylittle testimonyin either the preliminary hearing or the hearing on the motion to suppress as to what the Middletonsactually told the investigators shortly after Melissa was found dead. For sakeof clarity, the Middletons’ trial testimony is used here for context. " Robert recalled it was about two months before the homicide,the first really cold night that year, on a weekday in late Septemberor early October. (17RT 2588, 2602-2603, 2608 The information alleged that the prior incident occurred on or about October 1, 1994, which would have been about two monthsprior to November 29, when Melissa waskilled. (1CT 20-22.) !2 Linda did notrecall telling the investigator that Melissa recalled the assailant being on top of her. (17RT 2575) The district attorney’s investigator did not interview Montero until 1998, shortly before trial. The belated interview supported the prosecution’s fully-developed theory at trial that the prior incident occurred two weeks before appellant strangled Melissa, not two monthsearlier, as Robert Middleton’s recollected (17RT 2596; 21RT 3135-3139) 96 Robert checked and found no evidence that anyone hadtried to break into the house. (17RT 2593) A couple of days before, he had impressed upon Melissa that it was important to lock the back door, because she forgot occasionally. (17RT 2604) Appellant had a key to the Middletons’ house, because he had taken care of their animals while they were on vacation, and they had forgotten that he had not returned the key. (17RT 2595-2596) The Middletons talked to other people and concluded that Melissa had experienced a nightmare. For that reason, they decided not to call the police. (17RT 2573) Linda told the prosecution investigator in 1995 that she believed Melissa had a nightmare. (17RT 2574) Attrial, she still dismissed the incident as a nightmare. (17RT 2578) Although Melissa was friendly with appellant’s sister, Stacey, Robert did not recall her spending the night at the Lintons between the night of the nightmare and the time Melissa was killed. (17RT 2596) (2) Evolution: Nightmare + Sleepwalking + Coercive Interrogation Encompassing Express Promises of Leniency = Counts 2,3 and 4 Prior Bad Acts It is apparent from the context of the questions asked bythe police officers and District Attorney Mitchell during the afternoon and evening of November29, 1994, that they had begun to focus on appellant as a suspect and knew about the prior incident, believed by Robert and Linda Middleton to be a nightmare. There is no evidence that at the point the authorities interrogated appellant on November 29, they had additional information about a prior incident.'* Nonetheless, the interrogators began to pose questions based on the assumption that Melissa’s nightmare was in fact appellant’s sleepwalking incident. In addition, this was the first time that Stotz and Mitchell assured appellant that whatever happened (if something happened), it was “water under the bridge.” (SSCT 86) By end ofthe evening of November 29, the police and the district attorney through the use of '* See Footnote 3, above. The investigator did not interview Joey Montero until yearslater, in 1998. 97 false assurances already had extracted a story from appellant in which he woke up late at night, outside his house, wearing only his jeans and underwear On November 30, believing that the nightmare and the sleepwalking were one and the same, the authorities set out to persuade appellant to admit a sexual motivation for one, the other, or both. Ultimately, they only persuaded him to admit a sexual motivation for the prior incident, but it is important to recognize the length, sequence, and duration of the interrogation to understand how they got from Melissa’s nightmare and appellant’s sleepwalking to a prior incident in whichhe got into her bedroom in the middle of the night and attempted to sexually assault her. The questions and answers the morning of November30 reveal again that Stotz was convincedthat the incident originally described by the Middletons as having occurred two monthsearlier in a nightmare actually occurred two weeks earlier when appellant claimed to be sleepwalking, and that he was the individual whogotinto the house and assaulted Melissa. (SSCT 4-9) (3) Result: Prior Sexual Assault = Murder With Special Circumstance By November30 at 4:00 p.m., police had persuaded appellant to admit that his sleepwalking incident was the prior assault on Melissa, that her nightmare was real, and that during the prior incident that he “tried to reap [sic] her ... two months ago... whatever ... whenever.” (SSCT 233) But the prosecution was never able to resolve the discrepancy between Robert Middleton’s recollection in 1994 that the incident had occurred two months earlier and Joey Montero’s statement to the authorities in 1998, some four years later, that the incident occurred only two weeksbefore the killing. (See again, 17RT 2596, 21RT 3135- 3139.) The prosecutionalso relied on, and was not able to contradict, appellant’s own confession that the incident occurred two months earlier. (SSCT 233) And although the prosecution tried to minimize it during final argument, it also had a 98 problem explaining why Linda Middletontestified at trial that she still suspected the incident was a nightmare. (See 17RT 2578; 30RT 4742) Based on the foregoing, it is likely that the jury went into deliberations questioning whether or not Melissa’s nightmare was the same incident as appellant’s sleepwalking and even if so, whether appellant’s confession was reliable evidence as to what happened during the prior incident, or whether it happened differently. The record bears outall of this uncertainty on the part of the jury. b. Close Case Indicators (1) The Jury Deliberated for Three Days Long deliberations is one factor that demonstrates a case was close and difficult for the jury to decide. Jury deliberations of almost six hours are an indication that the issue of guilt is not 'open and shut', and strongly suggest that errors in the admission of evidence are prejudicial." (People v. Cardenas (1982) 31 Cal.3d 897, 907; see also, People v. Filson (1994) 22 Cal.App.4th 1841 [deliberations longer than the evidentiary phase of the trial]; People v. Rubalcava (1988) 200 Cal.App.3d 295, 301 [jury deliberations for "almost two days"], and People v. Zucker (1980) 26 Cal.3d 368, 391 [jury deliberations for nine days].) Here, the jury was out from March 9, 1999 at 12:35 p.m., through March 11 from 8:42 a.m. to 2:33 p.m., and again on March 15, from 9:00 a.m. through 3:13 p.m. (12CT 3439-3441; 30RT 4774-4786; 31RT 4791-4843, 4844-4885) Since there was no dispute that appellant strangled Melissa, the sole guilt issue before the jury was his intent and state of mind at the time of the homicide. The long deliberations reveals that even with the benefit of appellant’s “confession,” the jury struggled to decide this issue. 99 (2) The Jury Was Concerned aboutthe Efficacy of Appellant’s Miranda Waiver; the Truth About Appellant’s Confession; and the Possibility of Appellant’s Innocence Perhaps the most revealing of the jury’s comments occurred onthelast day of deliberations. At that time, the jury submitted a note that read, “A juror believes the entire interview is a lie and is interjecting speculation. Where do we go from here?” (31RT 4844) This note reveals that at least one juror likely questioned the reliability of the answers produced by the police interrogations and Detective Stotz’s credibility in general, a bit of skepticism which is supported by multiple instances in the record, in which he was caught lying under oath and/ordistorting the truth, in order to provide “evidence”of a prior incident and appellant’s sexual intent. The existence of notes and questions on the part of the jury during deliberations also can indicate a close and difficult jury determination. (People v. Markus (1978) 82 Cal.App.3d 477, 480.) The jury also submitted several other notes and asked questions that reveal skepticism about the interrogation of appellant. Several times in the course of the proceedings the authorities engaged in what euphemistically can be termed “creative recollection” to “help along” the finding of probable cause on the current offense. Appellant raises these incidents not to argue that the testimony should not be believed, which of course is not the function of a reviewing court. Rather, these instances are raised to highlight inherent weaknesses in the prosecution case that foreshadow and underscore matters that likely concerned the jury during deliberations, including but not limited to the overall credibility of Detective Stotz. Detective Stotz testified at the preliminary hearing that appellant said he put his hands downherpants: 100 Q [by DDA Mitchell]. “Did he [appellant] say anything in regards to following through with that intent or decision? A [by Stotz]. Yes, he did. Q. Whatdid he say he did? A. Hestated that he had unbuttoned and unzipped her shorts, and I believe he stated that he had tried to put his hands downhershorts. Mr. Ebert [DPD]: Your Honor, could we have — if the detectives referring to the transcript, tell us where he is? He’s not? The Witness: No, ?m not. I’m not reading from anything, if that’s what you’re asking? The Court: But if you do, please indicate that for the benefit of counsel. Q [by Mr. Mitchell]: After unzipping her shorts, did he indicate what he did next? A. I believe he stated he tried to put his hands down her pants, but because of the struggle he was unable to.” (1SCT 92-93 [Prelim. Hearing].) This was a lie. When Stotz asked appellant in the interrogation whether he put his hands down Melissa’s pants, appellant said no, twice. (See 5SCT 227, 235) Appellant could not have made such an admission off the record, because Stotz testified at the hearing on the motion to suppress he did not recall anything said that was not either in the report or the transcription. (4RT 541-543) More significantly, at trial Stotz admitted that he lied: Q [by DPD Cronyn] “And that’s not what Daniel Linton said,is it? A [by Stotz]. No,it’s not. Q In fact, he said that he didn’t put his hands downher pantsor try to. 101 A. That’s correct.” (19RT 2911) Whenaskedat trial about a statement in his police report that the thought crossed appellant’s mind to rape Melissa and that “therefore, that’s why he unbuttoned the button on her pants and unzipped them,” Stotz was not able to point to where in the interview appellant made the statement. (I9RT 2913-2914) The statement does not exist in the interview; appellant stated that he started to unzip her pants but stopped. (4CT 881-884) The jury also asked when a waiver of Miranda rights takes place. The court responded over defense objection that “a Miranda waiveris effective when a subject orally agrees to speak with investigators after his rights are read to him. There is no requirement that a Miranda waiver be documented in a written form, signed by the person being questioned.” (31RT 4803-4815.) The defense objected that this answer deprived appellant of his Fifth, Sixth, Eighth and Fourteenth Amendmentrights. (31RT 4803-4815.) This question demonstrates concern about whether appellant understood his rights when he waived them and whether that waiver waseffective, critical issues with respect to his interrogation and confession. The foreman reported that one of the jurors had admitted discussing a specific aspect of the case with her husband. Juror #1 said to her husbandthatif someone she knew cameinto her house, she would not automatically scream. The other jurors did not discuss this further. (12CT 3440; 31RT 4816-4823.) This note exposes the skepticism of at least one juror as to what really happened between appellant and Melissa. The jury also submitted additional notes. Thefirst note asked: “1.Is it too far to speculate whether Melissa let Daniel into the house?” Another note asked, 102 “2. Please clarify if speculation can be used in determining innocencein this case?” A third note asked, “3. Whatis the definition of speculation?” Together, these final notes reveal that one or more jurors did not believe the interview occurred as recounted by the prosecution witnesses and were concerned about appellant’s innocence,but felt constrained as to how muchthey could speculate. c. The Verdict Was Not Reliable and Reversal is Required Based on the foregoing, there is a serious question as to whetherthe verdict reached bythe jury wasa reliable reflection of what it actually believed. At least one juror appears to have believed, at some point, that the confession extracted from appellant was a false confession. Others appear to have wondered whether the encounter between appellant and Melissa was consensual and somehow got out of hand. Another juror felt compelled to discuss the case with her husband, even through she had been admonished not to do so. Whateverthe jurors thought, it is clear that improper admission of the coerced confession tainted the deliberative process and was not harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) The trial court’s decision to admit appellant’s confession requires reversal. Under these circumstances, and those set forth in additional detail under “Cumulative Prejudice,” introduction of the fruits of the authorities’ interrogations of appellant was extremely prejudicial and not harmless beyond a reasonable doubt. Even standing alone, however, admission of appellant’s statements and confession requires reversal. (Chapman v. California, supra, 386 U.S.at p. 24.) 103 B. The Trial Court Unfairly Frustrated Defense Efforts to Present a Defense Establishing that Appellant’s Confession Was False and Involuntary, in Violation of His Rights to Due Process and Confrontation of Witnesses Underthe Fifth, Sixth and Fourteenth Amendmentsto the Federal Constitution and Article I, Section 7 of the California Constitution, 1. Introduction Thetrial court made a numberofrulings that restricted appellant’s right to present his principal defensethat the confession to the prior act extracted from him by the authorities was coerced, unreliable and potentially false. Each of those rulings violated that right and require reversal under the Fifth, Sixth and Fourteenth Amendments to the Federal Constitution and Article I, Section 7 of the California Constitution. In Chambers v. Mississippi (1973) 410 U.S. 284, the Supreme Court held that exclusion of evidence vital to a defendant's defense constitutes a denial of a fair trial in violation of the due process clause of the Fourteenth Amendment to the Untied States Constitution. (See commentin People v. Reeder (1978) 82 Cal.App.3d 543, 553.) In Chambers, state evidentiary rules required exclusion of a recanted confession of another man, McDonald, who wasbelieved to be the actual shooter; forbade cross-examination of McDonald, who wastechnically Chambers’ witness; and also required exclusion of the hearsay testimony of three witnesses that McDonald had confessed to them. (Chambers, supra, at pp. 287-293) Under these circumstances, the Supreme Court ruled that the combined effect of the trial court’s rulings deprived Chambers of a “trial in accord with traditional and fundamental standards of due process.” (/d. at p. 302.) The Court in Chambers observed, “The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. ... ‘A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense-a right to his day in court-are basic in our system of jurisprudence; and these rights include, as a 104 minimum,a right to examine the witnesses against him,to offer testimony, and to be represented by counsel.’ (Chambers, supra, at p. 294, citing In re Oliver (1948) 333 U.S. 257, 273.) In Davis v. Alaska (1974) 415 U.S. 308, a Supreme Court concerned with the abridgement of a defendant's right to presentall evidence in his defense, overturned his conviction because the lower court would not allow impeachment of a material witness with a prior juvenile record. (/d., at p. 317.) The Court concluded, "[A] defendant's right to present his defense theory is a fundamental right and . . all of his pertinent evidence should be considered bythetrier of fact." (/d., at p. 317.) In Rock v. Arkansas (1987) 483 U.S. 44 [97 L.Ed.2d 37, 107 S.Ct. 2704], the Supreme Court issued another decision supporting this principle. There, the defendant was convicted of manslaughter after the lower court, pursuant to an Arkansas statute, refused to allow herto testify to matters recalled only after she had been hypnotized. The Arkansas Supreme Court affirmed and reasoned, much as the court did here, that the prejudicial effect of such testimony outweighed its probative value. The Supreme Court reversed, once again emphasizing the importantright to present exculpatory evidence. (Rock, supra, 97 L.Ed.2d,at pp. 43-44.) The California courts also support the fundamental right of the accused to present all relevant evidence vital to his or her defense. In People v. McDonald (1984) 37 Cal.3d 351, our Supreme Court commentedthat, "Evidencethatis relevant to the prime theory of the defense cannot be excluded in wholesale fashion merely becausethe trial would be simpler without it. Rather, it should be accompanied by instructions clearly explaining to the jury the purpose for which it is introduced." (Id., at p. 372.) In People v. De Larco (1983) 142 Cal.App.3d 294, the Court emphasized that, "Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to presentall relevant evidence of significant probative value to his defense.’ [Citation.]... Inclusion of relevant evidence can safeguard the defendant's rights as much as that of the prosecution. [Citation.] Indeed, 105 discretion should favor the defendant in cases of doubt because in comparing the prejudicial impact with probative value the balance ‘is particularly delicate and critical where what is at stake is a criminal defendant's liberty.’ [Citations.]" (/d., at pp. 305-306.) All these authorities make clear that a defendanthas right to introduce evidencein his or her defense, and state evidentiary rules impinging that right must give way to the federal constitutional mandate. (See e.g., Chambers v. Mississippi, supra, 410 U.S.at p. 302; Davis v. Alaska, supra, 415 U.S.at p.; 317.) 2. The Court Refused to Admit the Testimony of False Confession Expert Richard Ofshe, Ph.D., Whose Testimony Would HaveAssisted the Jury in Deciphering Why Appellant Would Falsely Confess to Attemped Rape a. Standard of Review A trial court’s decision to exclude expert testimony is reviewed under the abuse of discretion standard. (People v. Manriquez (1999) 72 Cal.App.4” 1486, 1492; Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1307-1308; Jn re LockheedLitigation Cases (2004) 115 Cal.App.4th 558.) b. Factual and Procedural Background On September 3, 1998, the defense filed a Memorandum of Points and Authorities in Support ofDefendant’s Introduction of Expert Testimony at Trial. The defense argued that the proffered testimony of false confession expert Richard A. Leo or Richard J. Ofshe was necessary to demonstrate “how police interrogation techniques utilized in this case affect the trustworthiness of the defendant’s statements.” (3CT 544-554) The Memorandum included Exhibit A, “The Decision to Confess Falsely: Rational Choice andIrrational Action,” Ofshe and Leo, in Denver University Law Rev., Nov. 1997. (3CT 555-701) 106 The prosecution did not file written opposition. (See 23RT 3425, 3591) The court heard argument and denied the defense motion without prejudice. (22RT 3423-3429 [2-18-99]; 23RT 3587-3614 [2-22-99].) The court ruled that the defense failed to establish a foundation to support a finding appellant had made a false confession, because he had not recanted. The court also reasoned that any testimony he had made a false confession was speculative. (23RT 3609, 3611, 3612) The defense renewed the motion. The court again denied the motion. (25RT 3733-3741 [2-24-99].) c. Governing Law and Application In Crane v. Kentucky (1986) 476 U.S. 683, the United States Supreme Court reversed a state court finding that a confession was voluntary and admissible, because it was extracted from a defendant under coercive circumstances and the jury was not allowed to hear about the environment in which the defendant was interrogated. The Court held that “T]he Kentucky courts erred in foreclosing petitioner's efforts to introduce testimony about the environment in which the police secured his confession. As both Lego and Jackson make clear, evidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility. Such evidence was especially relevant in the rather peculiar circumstances ofthis case. Petitioner's entire defense was that there was no physical evidence to link him to the crime and that, for a variety of reasons, his earlier admission of guilt was not to be believed. To support that defense, he sought to paint a picture of a young, uneducated boy who was kept against his will in a small, windowless room for a protracted period of time until he confessed to every unsolved crime in the county, including the one for which he nowstands convicted. Wedonot, of course, pass on the strength or merits of that defense. 107 We do, however, think it plain that introducing evidence of the physical circumstances that yielded the confession was all but indispensable to any chance of its succeeding. Especially since neither the Supreme Court of Kentucky in its opinion, nor respondentin its argumentto this Court, has advancedanyrational justification for the wholesale exclusion of this body of potentially exculpatory evidence, the decision below must be reversed.” (Crane v. Kentucky, supra, 476 U.S., at p. 691.) Neither this Court nor the Ninth Circuit has addressed whether Crane compels the admission of expert testimony about how the circumstances or environmentof an interrogation can result in the extraction of a false confession. The most helpful analysis that is directly on point is set forth in the Seventh Circuit case of United States v. Hall (7" Cir. 1996) 93 F.3d 1337. In Hail, the defense theory of the case was that due to a personality disorder which made the defendant susceptible to suggestion and pathologically eager to please, he “confessed”to a crime that he did not really commit, in order to gain approval from the law enforcementofficers who were interrogating him. (Hall, at p. 1341.) To substantiate its theory, the defense tendered Dr. Ofshe pursuantto Federal Rules of Evidence, rule 702 regarding expert witnesses. Dr. Ofshe, the defense contended, “would have testified about the fact that experts in his field agree that false confessionsexist, that individuals can be coerced into giving false confessions, and that certain indicia can be identified to show whenthey are likely to occur. He described his methodology in general terms, and what factors experts in the field rely upon to distinguish between reliable and unreliable confessions.” (Ibid.) Thedistrict court in Hall “rejected the proffer of Dr. Ofshe's testimonyin its entirety, on two grounds: (1) Dr. Ofshe would need to judge the credibility of Randolph's and Miller's [interrogating detectives] testimony about what happened during the interrogation of Hall, and (2) in the final analysis, Dr. Ofshe's testimony 108 would add nothing to what the jury would know from commonexperience.” (/d. at p. 1341.) The Seventh Circuit vacated Hall’s conviction and remanded the matter for further proceedings (Hall, supra, 93 F.3d at p. 1346), explaining that, “The [district] court indicated that it saw no potential usefulness in the evidence, because it was within the jury's knowledge. This ruling overlooked the utility of valid social science. Even though the jury may have had beliefs about the subject, the question is whether those beliefs were correct. Properly conducted social science research often shows that commonly held beliefs are in error. Dr. Ofshe's testimony, assuming its scientific validity, would have let the jury know that a phenomenon knownas false confessions exists, how to recognize it, and how to decide whetherit fit the facts of the case being tried.” (Hall, supra, at p. 1345.) The Court in Hall] concluded, “The district court's conclusion therefore missed the point of the proffer. It was precisely because juries are unlikely to know that social scientists and psychologists have identified a personality disorder that will cause individuals to make false confessions that the testimony would have assisted the jury in making its decision. It would have been upto the jury, of course, to decide how much weight to attach to Dr. Ofshe's theory, and to decide whether they believed his explanation of Hall's behavior or the more commonplace explanation that the confession was true. [Citation] But the jury here may have been deprived of critical information it should have had in evaluating Hall's case.” (Hall, supra, at p. 1345.) Asin Hall, the trial court erred when it excluded the testimony of Dr. Ofshe in this case. Appellant’s confession was the cornerstone of the prosecution case, not as to whether he strangled Melissa, which was notin dispute, but rather as to whether he strangled her in the course of an attempt to sexually assault or rape her. In order to obtain the information they needed to establish the latter, the interrogators metaphorically crawled into appellant’s head to assess his state of mind and in the process may have convinced him that he committed an act (the 109 prior attempted assault/rape) that did not occur, or did not occur as recounted in his confession. As discussed extensively in Argument I.A., appellant was interrogated by two district attorneys, three police officers, and a clinical psychologist beginning at his home the evening of November 29 and then resuming again at the station on November 30, 1994. Despite the fact that appellant denied at least 50 times that he intended to sexually assault or rape Melissa, the interrogators were relentless and finally, at the end of the day on November30, appellant stated that he tried to rape her in an previousincident. The jury deserved tools to assess whether the confession that resulted from law enforcement’s questioning was accurate and reliable. By excluding Dr. Ofshe’s testimony, the court allowed the jury to remain in the dark about a body of research which has established that under certain circumstances, an innocent suspect will confess to something he simply did not do. Based on Dr. Ofshe’s research, at the very least, the jury should have been informed that “some suspects will give a coerced-compliant false confession” in response to “classically coercive interrogation techniques such as ... promises of leniency.” (See Memorandum ofPoints and Authorities in Support ofDefendant’s Introduction of Expert Testimony at Trial, Exhibit A, “The Decision to Confess Falsely: Rational Choice and Irrational Action,” Ofshe and Leo, in Denver University Law Rev., Nov. 1997; and (Lunbery v. Hornbeak, supra, ___ F.Supp. at p.__ [slip opn.at p. 10]). (3CT 555-701, at p. 574) There simply was no reason to deny appellant the ability to present Dr. Ofshe’s testimony, other than to fortify the prosecution position that the confession wasreliable. Even if there was some question as to the efficacy of empirical studies about false confessions at the time this case wastried in 1999, there is no question now that such studies have established false confessions as a widespread problem 110 in the criminal justice system. In Drizin & Leo,'? “The Problem of False Confessions in the Post-DNA World,” supra, 82 N.C.L. Rev. 891, cited with approval in Corley v. United States, supra, __ US. __, __- [2009 WL 901513, slip opn. at p. 11], the authors observe,“Interrogation-induced false confession has always been a leading cause of miscarriages of justice in the United States. [Fn 157] As mentioned earlier, the methodologically sound studies that have systematically aggregated and quantified case data have found false confession to be the primary cause of wrongful conviction in 14-25% of the documented cases. [Fn. 158] While it is not presently possible to provide a valid quantitative estimate of the incidence or prevalence of interrogation-induced false confessions in America, [Fn. 159] the research literature has established that such confessions occur with alarming frequency. [Fn 160] Social psychologists, criminologists, sociologists, legal scholars, and independent writers have documented so many examples of interrogation-induced false confession in recent years that there is no longer any dispute about their occurrence.” (“The Problem of False Confessions in the Post-DNA World,” supra, at pp. 920-921) There appear to be three California cases that have addressed the admissibility of false confession expert testimony. All three are Court of Appeal cases and noneare either as helpful or as apposite as Hall. The first Court of Appeal case to confront the issue was People v. Page (1991) 2 Cal.App.4" 151. The prosecution in this case relied on Page to support its argument that the testimony of Dr. Ofshe should not be admitted at all, but in reality Page actually reinforces the defense position. (See 22RT 3424 [prosecution argument]; 23RT 3591 [defense argument], and 23RT 3593 [trial court ruling].) '’ Richard Leo, Ph.D., the co-authorofthis article also was the co-authorofthe article, “The Decision to Confess Falsely: Rational Choice andIrrational Action,” Ofshe and Leo, in Denver University Law Rev., Nov. 1997, Exhibit A to the defense motion to introduce Dr. Ofshe’s expert testimony. In addition, the defense proffered Dr. Leo as a witness during the penalty phase, see post. 111 In Page, the defendant was interrogated by the police and eventually confessed that he “backhanded” his girlfriend, which caused her to fall to the ground unconscious,her nose bleeding. He later returnedto the scene, saw that she was dead, and buried her. Her body was found a few days later, and the defendant was taken into custody. The police interrogated the defendant, and he eventually broke down and provided lurid details (for example, that he had sex with her dead body before burying her), some recalled by him but many supplied by the interrogators. (Page, supra, at pp. 164, 174-176.) The defendant later recanted his confession. (/d. at pp. 175-176.) Hetestified at trial, denied any involvement in the killing, and claimed that the police “fed” him the details of the homicide and the confession, which he agreed to because he was overwrought. (/d. at pp. 177- 178.) The defense in Page soughtto introduce the testimony of Elliot Aronson,a professor of psychology at the University of California, Santa Cruz, an expert on the subject of false or unreliable confessions. (Page, supra, 2 Cal.App.4", at pp. 179-180) “Professor Aronson's proposed testimony fell into three general categories: (1) the general psychological factors which mightlead to an unreliable confession, along with descriptions of the supporting experiments; (2) the particular evidence in Page's taped statements which indicated that those psychological factors were present in this case; and (3) the reliability of Page's confession, given the overall method of interrogation. Although thetrial court's rulings are somewhat obtuse, it appears the court permitted testimony from the first category only, and excluded evidence from the other two categories.” (Jd. at p. 183.) The defendant in Page was convicted of voluntary manslaughter and appealed. (Page, supra, 2 Cal.App.4"at pp. 163-164.) He argued on appeal that the restrictions on Professor Aronson’s testimony violated his Sixth and Fourteenth Amendmentright to present a complete defense, relying heavily on the reasoning in Crane v. Kentucky, supra, 476 U.S. 683. (Page, supra,. at p. 184.) 112 The Court of Appeal in Page disagreed with the defendant’s analysis of Crane and affirmed his conviction. (/d. at pp. 185-191.) As noted above, the prosecution in this case relied on Page to justify wholesale exclusion of expert testimony about the psychology of false confessions, andthe trial court agreed (See again, 22RT 3424; 23RT 3593.) The trial court’s interpretation of Page was wrong. Unlikethe trial court in this case, the court in Page permitted false confession expert Dr. Aronson to testify but restricted his testimony to the general psychological factors and interrogation techniques which result in an unreliable, false confession. It was in this context that the court in Page explained,“the restriction on Professor Aronson's testimony is a far cry from the ‘blanket exclusion’ of evidence the Supreme Court faced in Crane. Unlike Crane, Page was not ‘stripped of the power to describe to the jury the circumstances that prompted his confession.’ [Citation]” (Page, supra, at p. 185, citing Crane, supra, 476 U.S. at p. 689.) “In the present case,” the Page court continued, “that power was, at most, marginally curtailed. Consequently, in our view,the trial court's ruling did not deprive Page of " ‘a meaningful opportunity to present a complete defense.’ ”’ [Citation]” (Page, supra, citing Crane, supra, at p. 690, fn. omitted.) Once it becomes clear that Page was a “selective exclusion” case, not a “blanket exclusion” case, its rationale makes perfect sense. The defendant in Page, like appellant, was able to present evidence about the physical and psychological environment in which his confession was extracted: “There are obvious and important differences between this case and Crane. Here the trial court permitted Page and the prosecutor to thoroughly explore the physical and psychological environment in which the confession was obtained. Among other things, the jury learned that: Page was questioned by twopolice sergeants, both of whom were thoroughly cross- examined on the method of interrogation; the police lied to Page to extract his confession; the officers made him feel guilty; Page took and failed a polygraph exam; and Page had only recently learned of Bibi's death. 113 The jury also knew Page's educational level and physical condition. With respect to the physical circumstances of the interrogation, the jury knew the size and layout of the interrogation room (through testimony and pictures), how long the interrogation sessions lasted, when Page ate, when he drank water, and used the restroom or the telephone. In short, the defense and prosecution painted a detailed picture of the physical and psychological circumstances of the interrogation.” (Page, supra, at pp. 185-186.) However, unlike the defendant in Page, appellant was not allowed to present the testimony ofa false confession expert as a critical tool to assist the jury in understanding in general how certain interrogation techniques operate so as to elicit false information from a suspect and thereby enable the jury to reach its own, fair conclusion about the effect of the interrogation on the veracity andreliability of the confession. It is this blanket exclusion that was disapproved of in Crane and was error here. As the court in Page acknowledged, “‘stripped of the power to describe to the jury the circumstances that prompted his confession, [he] is effectively disabled from answering the one question every rational juror needs answered: If the defendant is innocent, why did he previously admit his guilt?” Consequently, the court concluded that where the prosecutor's case is based on the defendant's confession, the defense must be permitted to delve into the circumstances under which the confession was secured.’ [Citation]” (Page, supra, at p. 185, citing Crane, supra, 476 USS.at p. 689.) For other reasons, the more recent case of People v. Ramos (2004) 121 Cal.App.4” 1194, is not apposite. In Ramos, the defense sought to introduce the testimony of Dr. Richard Leo [co-author of “The Decision to Confess Falsely: Rational Choice and Irrational Action,” Ofshe and Leo, in Denver University Law Rev., Nov. 1997, appended to the original defense motion in this case. See 3CT 555-701]. The Court of Appeal in Ramos upheld the trial court’s exclusion of Dr. Leo’s testimony because the interrogatingofficer “did not misrepresentthe state of the evidence to Ramos, did not subject him to a polygraph examination and did 114 not question him repeatedly over an extended period of time. Thus, as the trial court concluded, the defense failed to demonstrate the need for Leo's expert testimony.” (Ramos, supra, at p. 1207.) In another case, People v. Son (2000) 79 Cal.App.4™ 224, the Court of Appeal upheld exclusion of Dr. Ofshe’s testimony because “there was no evidence that police engaged in tactics wearing down Son into making false admissions. Hence the proffered expert testimony on police tactics was irrelevant.” (/d. at p. 241.) Here, by contrast, the actions of Detective Stotz, et al., read like a textbook in how to coerce a confession. (See argument A, ante.) d. Prejudice The trial court ruling excluding Dr. Ofshe’s expert testimony deprived appellant of his right to present a defense, in violation of the due process clause of the Fourteenth Amendment, as well as Article I, Section 7 of the California Constitution. (Chambers v. Mississippi (1973) 410 U.S. 284, 294.) Like admission of the confession, the error is evaluated under the harmless-beyond-a- reasonable-doubt standard for federal constitutional error. (Chapman vy. California, supra, 386 U.S. at p. 24.) Once again, the state will not be able to meet its burden of establishing harmlesserror. At the conclusion of their study, Professors Ofshe and Leo provided an apt analogy as to false confessions. They observed that, “A judge would never admit into evidence a doctored photograph that is the product of modern computer graphic techniques and depicts a scene that never happened. [para.] A false confession is analogous to a doctored photograph. The mechanism for creating it is the ancient technology of humaninfluence carried forward into the interrogation room.” (3CT at p. 697, in “The Decision to Confess Falsely: Rational Choice and Irrational Action,” Ofshe and Leo, in Denver University Law Rev., Nov. 1997.) The jury could not be expected to know about this body of research regarding false and coerced confessions. The court’s ruling excluded information 115 that would have fairly informed it about the effect of overreaching interrogation techniques before making its own assessment about the reliability of appellant’s his confession and, ultimately, his guilt. The jury also was not instructed to be wary of the unrecorded portions of the interrogation and to view those portions with caution. (See ArgumentIII, post.) Under these circumstances and thoseset forth in additional detail under “Cumulative Prejudice,” exclusion of the testimony of Dr. Ofshe was not harmless beyond a reasonable doubt and requires reversal. (Chapman vy.California, supra, 386 U.S.at p. 24.) 4. The Court Refused Cross-Examination of the Architect of Appellant’s False Confession, Deputy District Attorney William Mitchell. a. Standard of Review The standard of review for a ruling on the admissibility of evidence is abuse of discretion. (People v. Waidla (2000) 22 Cal.4™ 690, 717.) Thetrial court’s discretion must be “neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and notto impeded or defeat the ends of substantial justice. [Citations]” (People v. Stone (1999) 75 Call.App.4" 707, 716.) Although the abuse of discretion standard is deferential, “it is not empty.” (People v. Williams (1998) 17 Cal.4™ 148, 162.) The standard “asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts [citations].” (Ibid.) b. Factual and Procedural Background On April 21, 1998, the defense filed a Notice of Intent to Call the Prosecuting Attorney [Deputy District Attorney William Mitchell] as a Witness and Objection to His Dual Role Based on the Fifth, Sixth, and Fourteenth 116 Amendments to the United States Constitution. (ACT 214-225) The thrust of the defense argument was that Deputy District Attorney Mitchell (““DDA Mitchell”) wasactively involved in questioning appellant on November 29, 1994, the evening of the day Melissa was killed, and told appellant that any prior sexual problem between him and Melissa was “water under the bridge.” (ICT 217-218) The defense theory was that DDA Mitchell’s active personal involvement in the questioning on November 29 andin directing the interrogation on November 30 (including but not limited to the retention of a psychologist to try to extract a confession that he had a sexual motive in strangling Melissa) made him a percipient witness to the critical issue of the voluntariness of appellant’s confession. The defense contended that DDA Mitchell’s dual role as active interrogator necessitated that the defense call him as a witness at trial, thus creating a conflict with him also acting as lead prosecutor. (1CT 220-221)'° The district attorney vigorously opposed the defense motion. On May 26, 1998, it filed an Opposition to Defendant’s Motion to Recuse Prosecuting Attorney. (3CT 305-310) In that opposition, the district attorney took the position that the defense failed to establish a conflict of interest. The district attorney characterized Muitchell’s role as an observer during the pre- and post-arrest '® At the time this motion was in process andheard, there apparently was a great deal of concern on the part of the defense as to whether there werecritical gaps in the initial poor-quality interview tapes, specifically as to promises of leniency by Detective Stotz and DDA Mitchell. On the first copy of the tape given to the defense, Stotz’s initial promise that appellant would notget in trouble for any prior sexual issue with Melissa waseither not on the tapeat all or not audible. (See 2CT 216-217, fn. 1) Similarly, DDA Mitchell’s promise to appellant that any prior incident was “water under the bridge” may have not been audible onthefirst tape; the defense in its reply commented,“The People’s Opposition gives the impression that Mr. Mitchell was merely a passive observer of the November 29" interrogation. To the contrary, Dr. Poza’s [tape quality expert’s] transcript establishes that Mr. Mitchell was an active participantin the effort to elicit incriminating statements and that he personally made promisesof leniency.” (See 2CT 347, fn. 1) 117 interviews and on that basis concluded that his testimony was cumulativeto that of Detective Stotz and of minimal weight. (2CT 306-307) On June 17, 1998, the defense filed a Reply to People’s Opposition to Notice ofIntent to Call Prosecuting Attorney at a Witness. (3CT 345-362) The defense disputed the district attorney’s characterization of DDA Mitchell’s role as a “passive observer” when he was clearly in the background orchestrating the interrogation. (3CT 347) The defense also challenged the argument that DDA Mitchell could be shielded from testifying as a witness, pointed out that appellant’s reaction to promises of leniency were central to the defense, and noted the necessity of calling DDA Mitchell to impeach a number of “inaccuracies” testified to by Stotz at the preliminary hearing, whose credibility was later seriously questioned by the jury during deliberations. (See argument I.A.6, ante.) The defense concluded, “when a deputy district attorney chooses to become personally involved in the collection of evidence, he has by his voluntary, affirmative conduct made himself a material witness who ‘ought’ to be called to testify.” (3CT 352) On June 19, 1998, the court called the motion for hearing. (3CT 365; 2RT 221-223.) '’ At that time, DDA Mitchell argued he had no objection to the defense calling him to testify regarding pretrial motions but objected to being called to testify at trial. (2RT 222) The court denied the motion as premature, reasoning that the issue of voluntariness must be resolvedfirst. (2RT 222-223) On August 6, 1998, the defense filed a supplemental Reply to People’s Opposition to Defendant’s Motion to Recuse Prosecuting Attorney. (3CT 408- 411) The defense pointed out that if DDA Mitchell was allowed notto testify at trial, he unfairly would become a witness beyond the reach of cross-examination as to his percipient knowledge about the interrogations. The defense concluded, “Every comment [DDA Mitchell] might make concerning the defendant’s " This hearing was before the Honorable Robert J. McIntyre, who wasnotthe judgeat trial. (See 2RT 207) 118 personality and motivation therefore would violate the Sixth Amendment Right to Cross-Examination, as well as the Fifth and Fourteenth Amendment Rights to Due Process... From voir dire to final argument, the issue of William Mitchell’s personal knowledge and credibility will be before this court and the trier of fact.” (3CT 409-410) On August 17, 1998, the court heard the motion to recuse prosecuting attorney William Mitchell. (2CT 423; 3RT 252-254)'* The defense called DDA Mitchell. DDA Mitchell testified as follows. During the November 29, 1994 interview, he did not tell appellant he was a suspect. (3RT 261) Stotz told appellant that if he were not guilty, a lie detector would help clear his name. (3RT 262-263) DDA Mitchell did not say on tape that he wasa district attorney, but before the tape was turned on, he met appellant’s parents and said he was the district attorney. (3RT 264-265) He participated in the interview for about thirty minutes. (3RT 271) He probably brought up the issue of the polygraph examination. (3RT 275) He asked questions of appellant that focused on a sexual attraction or interest in Melissa. (3RT 277) He told appellant that any prior sexual problems with Melissa were “water under the bridge.” (3RT 293) The defense turned to the “water under the bridge” issue. The defense asked: Q [by PD Cronyn] “[D]id you make sure Daniel Linton understood that if he did commit the murder and had problems sexually in the past, that you would charge special circumstances?” The prosecution objected, and the court sustained the objection. (3RT 296- 297) The following set of questions and answers followed: Q [by PD Cronyn] “Do you explain to him at the time that the words that we use could be used against him in a '8 This hearing also was before the Honorable Robert J. McIntyre. (3RT 252) 119 court of law regarding his problems sexually in the past? A [by DDA Mitchell] No. I think you misunderstood. He was A contending he did notkill Melissa, so we were offering him the polygraph so he could prove or clear his name in that regard, if he wanted to avail himself of that. So that wasn’t something I wouldtell him at that time, that everything in regard to the past incidents with Melissa could be used. In fact, we weretelling him if he was not the murderer, that nothing he says about the problems would be used against him in court. Wheredoesit say that you say that? That’s the gist of the interview with him. The problems of leniency that you referred to on the numerousother portions where I say “water under the bridge” and those other portions, that was thegist of the interview. He was contending he was not the murderer. Do youspecifically tell him at that time, you will get in trouble for problems sexually in the past with Melissa if you are the murderer? No. That wasnot the gist of the interview. The interview wasthe opposite of that. Did youtell him at any timethat, that only the murderer will get in trouble for problems sexually in the past? That’s not said.” (3RT 300-301) At this point, the prosecution objected. The court stated, “I tend to agree that we’re looking at what was said for purposes of this recusal motion. And Ill sustain your objectionas to the last question.” (3RT 301) 120 The defense continued its questioning of DDA Mitchell. Mitchell was the on-call deputy when the homicide occurred and in that capacity directed the investigation. (3RT 328) He arranged for Dr. Rath to participate in the investigation to interview appellant (3RT 304-306) Hedid not recall how Deputy District Attorney John Chessell became involvedin the interrogation. (3RT 306- 307) He was in contact with Detectives Stotz, Lynn, Rodriguez, DDA Chessell and Dr. Rath as the interrogation progressed. (3RT 308) He deniedtelling the interrogators to try to find a sexual motivation for the offense. (3RT 324-325) With respect to the tape of the November 29 interview, DDA Mitchell acknowledged that portions of the tape were of poor quality but adamantly maintained that he did not instruct that any portions of the tape be deleted beforeit was given to defense counsel. (3RT 310) He acknowledged that portions of the tape were inaudible but did not know whether that was the condition of the tape when it was provided to Deputy Public Defender Robert Ebert prior to the preliminary hearing. (3RT 322) The parties argued the issue. (3RT 330-347) The court commented that it was going to assume for purposes of the motion that the motion to suppress appellant’s confession would subsequently be denied. (3RT 345) The court admitted the taped interview into evidence and took the matter under submission for 24 hours. (3RT 348-349; Def. Exh. C [tape], B [11/29/94 transcript, at 3RT 425-446].) On August 19, 1998, the court issued a minute order containing written findings and denying the motion. The court ruled that the recusal of DDA Mitchell was not necessary because he participated in an early, “non- confrontational” portion of the interrogation that did not elicit any confession, and there was no evidence DDA Mitchell acted unethically or did not conduct his duties in a fair and even handed manner. The court further ruled that if the defense were to call DDA Mitchell as a witness, a second district attorney could stand in during his testimony. Finally, the court ruled that recusal was not 121 necessary for the orderly administration of justice and the fact that DDA Mitchell continued to be the prosecutor on the case did not deny appellant due process or a fair trial under the federal or state constitution. The court cited no legal authorities in its ruling. (2CT 447-448.) On September 8, 1998, the defense filed a Petition for Writ of Mandate / Prohibition in the Court of Appeal, Fourth District Division Two, seeking to overturn the trial court’s denial of the motion to recuse DDA Mitchell. (SCT: Writ of Mandate 1-16) On October 1, 1998, the Court of Appeal, Fourth District Division Two, denied the Petition without comment, case number E023346. (3CT 797) DDA Mitchell did not testify again, either at the hearing on the motion to suppressorat trial. Mitchell’s involvement in the interrogation process was referred to during the trial testimony of Detective Stotz, Detective Michael Lynn, Deputy District Attorney John Chessell, Craig Rath, Ph.D., and Detective Frederick Rodriguez. During trial at the close of its case, the defense tried to call Mitchell as a witness. Mitchell objected. (27RT 4177) The defense made an offer of proof as to whyit should be allowed to call Mitchell as a witness: “He is a proper witness. He is a percipient witness. And as Mr. Mitchell himself said on page 3932, ...’the most probative evidence we can get [is] from somebody looking and seeing and dealing with Daniel Linton in close proximity to the time of the crime.’ And that would be, of course, Mr. Mitchell, who sat in Daniel Linton’s bedroom for over half an hour on the very day that Daniel killed Melissa. And he has observations about Daniel’s behavior... [para.] Mr. Mitchell then came to the crime scene and interviewed Daniel Linton personally, sitting just a few feet away from him. I think this jury is — this jury is entitled to see and evaluate the testimony of Mr. Mitchell and to understand that when a 122 person of Mr. Mitchell’s stature and credibility promises someone that ‘problems sexually in the past are water under the bridge,’ that they would necessarily rely upon that. In fact, that they would absolutely a believeit, just as Officer Stotz did, who also heard that promise andtestified that he truly believed the promise to be true. But I think that that’s very important in the jurors’ assessment of — of the situation in terms of the voluntariness and trustworthiness of the confession.” (27RT 4178) The defense also argued that Mitchell’s testimony was necessary to explore, inter alia, his perception of appellant’s demeanor the evening of the killing (27RT 4179); to clarify a numberof matters testified to by Detective Stotz, who had been impeached based on poor recollection and in a few instances outright falsity (27RT 4180); to nail down a contradiction between Detective Stotz and Detective Lynn as to when Lynn gave Stotz the tape recorder (27RT 4180); to corroborate that Mitchell retained Dr. Rath to extract from appellant a sexual interest in Melissa (27RT 4181); and to demonstrate that Mitchell was directing the interrogation to build a special circumstance case, and without which “the interrogation would have ended at 10:05, and we wouldn’t have a felony murder here, let alone a special circumstance murder.” (27RT 4180) Mitchell, of course, fought having to testify, contending that his testimony would be cumulative and that he was not present during the November 30 interview. (27RT 4185) The court agreed and ruledthat, “I’m going to forbid the prosecution [sic] from calling him as a witness.” (27RT 4186) The defense stated, “If I could just say for the record, our — our inability to call Mr. Mitchell violates Daniel Linton’s Sixth Amendmentright to present a complete defense,his fifth and Fourteenth Amendmentrights to due process, and Eighth Amendment right to reliability of a verdict in a capital case.” (27RT 4186) 123 c. Governing Law and Application In refusing to allow the defenseto call Mitchell as a witness, the trial court denied appellant his federal constitutional right to present a defense and confront a critical percipient witness. (See again, Chambers v. Mississippi (1973) 410 U.S. 284, 302 [denial of examination of confessing accomplice violated due process]; Davis v. Alaska (1974) 415 U.S. 308, 317 [denial of examination of witness with juvenile record violated due process].) In United States v. Edwards (9" Cir. 1998) 154 F.3d 915, under set of circumstances remarkably similar to those here, the Ninth Circuit reversed because a federal prosecutor was intimately involved in the discovery of a critical piece of evidence and wasnot subject to cross-examination. (Edwards, supra, at p. 922.) In Edwards, the government sought to introduce a black nylon bag that was recovered from the defendant’s girlfriend and contained cocaine. (Edwards,at pp. 917-919) On the first day oftrial, the defense argued in opening statement that there was no evidence linking the bag to the defendant. That evening, the Assistant United States Attorney (AUSA)prosecuting the case was looking at the bag and allegedly found bail receipt with the defendant’s nameonit, thus tying him to the bag and its contents. The following morning, the district court overruled defense objection to introduction of the receipt and also denied a defense motion for mistrial. (/d. at p. 919) The AUSAin Edwards then introduced the receipt into evidence “through the same police officer who had earlier testified that there was nothing in the bag linking it to Edwards. The prosecutor had replaced the receipt in the bottom of the bag and asked the officer, who had not been present when he found the evidence, to look under the cardboard. By doing so, the prosecutor presented to the jury a re- enactment, albeit undisclosed, of his own discovery of the evidence with the witness playing his role. The prosecutor directed the scene, first instructing the officer to pull up the cardboard “and see if there is anything underneath it.” (Ud. at 124 p. 919) The prosecutor in closing argumentidentified the receipt as a key piece of evidence. (Edwards, supra, at p. 920.) The defendant was convicted and the Ninth Circuit reversed. The Court in Edward explained, “It is well settled that a prosecutor in a criminal case ‘has a special obligation to avoid “improper suggestions, insinuations, and especially assertions of personal knowledge.” [Citations]. A prosecutor may not impart to the jury his belief that a government witnessis credible. [Citation] Such improper vouching may occur in at least two ways. The prosecutor may either ‘place the prestige of the government behind the witnessor... indicate that information not presented to the jury supports the witness's testimony.’ [Citation] When the credibility of witnesses is crucial, improper vouching is particularly likely to jeopardize the fundamental fairness of the trial. [Citation]” (United States v. Edwards, supra, 154 F.3d at p. 921) The Circuit in Edwards then analyzed this situation using the advocate- witness rule, which precludes an attorney to take the stand andtestify in a case he or she is litigating. The court concluded that where the prosecutor’s own credibility with respect to an item of evidence is before the jury, the very fact that he is a percipient witness will result in the jury being unduly influenced by the prestige and prominence of the prosecutor's office and will base their credibility determinations on improper factors: “Akin to the rule against vouching is the advocate-witness rule, under which attorneys are generally prohibited from taking the witness stand to testify in a case they are litigating. [Citation]. As with vouching, the policies underlying the application of the advocate-witness rule in a criminal case are related to the concern that jurors will be unduly influenced by the prestige and prominence of the prosecutor's office and will base their credibility determinations on improper factors. Moreover, the rule reflects a broader concern for public confidence in the administration of justice, and implements the maxim that ‘justice must satisfy the appearance of justice.’ This concern is especially significant where the testifying attorney represents the prosecuting arm of the 125 federal government. [Citations] Essentially, the danger in having a prosecutor testify as a witness is that jurors will automatically presume the prosecutor to be credible and will not considercritically any evidence that may suggest otherwise.” (United States v. Edwards, supra, 154 F.3d at p.921.) The Court in Edwards continued, “[A]s the Eleventh Circuit has observed, the policies underlying the advocate-witness rule apply equally when a prosecutor implicitly testifies to personal knowledge or otherwise attains ‘witness verity’ in a case in which he appears as an advocate for the government. Thus, it would be improper for a government attorney who has independent personal knowledge about facts that will be controverted at the trial to act as prosecutor (1) if he uses that inside information to testify indirectly by implying to the jury that he has special knowledge or insight, or (2) if he is selected as prosecutor whenit is obvious he is the sole witness whose testimony is necessary to establish essential facts otherwise not ascertainable.” [Citation] (United States v. Edwards, supra, at pp. 921-922). The Ninth Circuit in Edwards noted, “In this case, all the prosecutor had to do in order to convey to the jury his belief-indeed his representation, based on personal knowledge-that the receipt was legitimate and that it was found on the up-and-up, was simply to continue to play the role of objective prosecutor. His continued participation in the trial was, in effect, an implicit guarantee to the jury that the receipt was a trustworthy piece of evidence, that it had not been planted, and that the officers who testified regarding the circumstances of the receipt's discovery were credible, honest witnesses whose accountsof the events were to be believed.” (Edwards, supra, at p. 922.) The Court in Edwards further reasoned, “An improper message conveyed in this manner is even more prejudicial to the defense than the usual vouching message ...The prosecutor's personal involvement in the discovery of the receipt plainly served to inform the jury that he had special knowledge regarding its discovery. His involvement also necessarily advised the jury that he personally 126 believed, based on his own observations, that the receipt had not been planted-he was there, he saw the bag, he saw the crumpled up piece of paper lodged underneath the cardboard bottom, he knew somehow that the bag had not been tampered with. Even more, the prosecutor directly asked the witnesses to testify that he had done nothing improper when he discovered the receipt, that neither he nor anyoneelse had,in fact, planted it.” (Edwards, supra, at p. 922) The Court in Edwards concluded “Theprosecutor's implicit testimony was devastating to Edwards's only theory of defense, and it was a blow against which he had no wayto defend. Because the prosecutor was not subject to cross- examination, defense counsel did not have a fair opportunity to cast doubt on the circumstances under whichthe receipt was found.” (/d. at p. 922.) Other federal courts also have applied the advocate-witness rule and found a conflict where a prosecutor’s percipient knowledge places him in the conflict of being both an advocate for the government/prosecution and a witnessto a key fact. In United States v. Prantil (9™ Cir. 1985) 764 F.2d 548, 552-53, the Ninth Circuit foundthat the district court abusedits discretion in refusing to recuse a prosecutor, whosetestimonyas a witnessas to grand jury proceedings waskeyto the defense of the case. (/bid.). Taken together with Chambers and Davis, Edwards compels the conclusion that appellant’s rights to confrontation and due process were seriously abridged by the trial court’s refusal to allow the defense to cross-examine Mitchell. It must be remembered that Mitchell’s actions and perceptions became important because he sought to inject himself into the interrogation process. As an experienced prosecutor, surely he knew that the risk of such involvement was that he put his owncredibility and actions in issue. Had he not been so involved, his testimony would not have been so important. And because the successful prosecution ofthis case rested almost entirely on the jury’s evaluation of all of the surrounding circumstances of appellant’s confession, denial of the ability to confront and cross- 127 examine Mitchell — the architect of the promise-induced confession -- was a gross violation of appellant’s right to present a defense. A brief review of Mitchell’s testimony at the hearing on the motion to recuse exemplifies why it was so critical for the jury to hear from him. Recall, originally there was some problem with the tape recorder Detective Stotz had in his pocket the evening of November 29, when he and Mitchell “interviewed” appellant in his bedroom. Onthe first copy of the tape given to the defense, Stotz’s initial promise that appellant would not get in trouble for any prior sexual issue with Melissa was either not on thetapeat all or not audible. (See 2CT 216-217, fn. 1) Similarly, DDA Mitchell’s promise of leniency to appellant may have not been audible on the first tape. The defense in its reply commented, “The People’s Opposition gives the impression that Mr. Mitchell was merely a passive observer of the November 29" interrogation. To the contrary, Dr. Poza’s [tape quality expert’s] transcript establishes that Mr. Mitchell was an active participant in the effort to elicit incriminating statements and that he personally made promises of leniency. (See 2CT 347,fn. 1) It was in this context that the defense questioned Mitchell, and he answered as follows: Q [by PD Cronyn] “Do you explain to him at the time that the words that we use could be used against him in a court of law regarding his problems sexually in the past? A [by DDA Mitchell] No. I think you misunderstood. He was contending he did not kill Melissa, so we were offering him the polygraph so he could prove or clear his name in that regard, if he wanted to avail himself of that. So that wasn’t something I wouldtell him at that time, that everything in regard to the past incidents with Melissa could be used. In fact, we were telling him if he was not the murderer, that nothing he says about the problems would be used against him in court. Q Wheredoesit say that you say that? 128 A That’s the gist of the interview with him. The problemsof leniency that you referred to on the numerousother portions where I say “water under the bridge” and those other portions, that was the gist of the interview. He was contending he was not the murderer. Q Doyou specifically tell him at that time, you will get in trouble for problems sexually in the past with Melissa if you are the murderer? A No. That was notthe gist of the interview. The interview was the opposite of that.” (3RT 300-301) Mitchell’s response appears to be akin to a now infamous answer, reminiscent of Orwellian Doublespeak, that it depends on what “is” is. A trier of fact evaluating the circumstances under which appellant was tape recorded might wonderif Mitchell and Stotz expected the promise of leniency to be picked up by the tape. Otherwise,it is difficult to understand why an experienced prosecutor would not be careful to clarify that the “gist” was that appellant only would get leniency if he were not the murderer. Equally troubling is the fact that the court would not allow an answerto that critical question. The defense asked, Q “Did you tell him at any timethat, that only the murderer will get in trouble for problems sexually in the past?” Mitchell answered, A “That’s not said.” Mitchell then stepped out of his role as witness and back into his role as advocate, and objected to the question. The court stated, “I tend to agree that we’re 129 looking at what wassaid for purposesof this recusal motion. And I'll sustain your objection as to the last question.” (3RT 301) In addition to Mitchell’s role in the initial questioning of appellant, the defense also was entitled to present his role in orchestrating the interrogation the following day. His shadow lingers through the entire day of November30, leaving a huge gap in the body of knowledge the jury should have had to makeits decision, including but not limited to his instructions to all interrogating officers, the other district attorney involved, John Chessell, and Dr. Rath. None ofthis information is cumulative, because it potentially contradicts the recollection of each witness as to what he wastold to do with appellant, and when. d. Prejudice Mitchell’s intimate involvement in the initial stages of the interrogation on November 29 put him in a unique position to assist the jury’s evaluation of appellant’s demeanor and state of mind after the killing and also should have required him to explain his own overreaching promise of leniency. His actual involvementin the interrogation on November30 is unknown because the defense was prevented from developing the recordat trial, but the testimony of the other interrogators gives rise to a compelling inference that he was orchestrating efforts that resulted in overreaching and produced a false confession. Based on the foregoing, the trial court erred when it denied the defense request to call Mitchell as a witness and the error was prejudicial because the jury was denied yet one moretool to evaluate allegations that the interrogation process was fundamentally unfair. (Chapman v. California, supra, 386 U.S.at p. 24.) 130 5. The Court Restricted Cross-Examination of Detective Glenn Stotz, Appellant’s Chief Interrogator a. Standard of Review The standard of review for a ruling on the admissibility of evidence is abuse of discretion. (People v. Waidla (2000) 22 Cal.4™ 690, 717.) The trial court’s discretion must be “neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impeded or defeat the ends of substantial justice. [Citations]” (People v. Stone (1999) 75 Cal.App.4™ 707, 716.) Although the abuse of discretion standardis deferential, “it is not empty.” (People v. Williams (1998) 17 Cal.4™ 148, 162.) The standard “asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts [citations].” (Ibid.) b. Governing Law and Application The credibility of a key witness is never irrelevant. Relevant evidence includes evidence relevant to the credibility of a witness that has any tendency in reason to prove or disprove a disputed fact. (See Evid. Code, § 350; Wood v. State ofAlaska (9th Cir. 1992) 957 F.2d 1544 [thorough analysis of what is and is not relevant in light of defendant's version of events]. Relevant evidence which bears on the credibility of a witness never should be excluded; to do so impinges the defendant's right to present his defense. "Cross examination is the principle means by which the believability of a witness and the truth of his testimony are tested." (Davis v. Alaska, supra, 415 U.S., at p. 316.) It is the “greatest legal engine ever invented for the discovery of truth.” ” (California v. Green (1970) 399 U.S. 149, 158.) The Confrontation Clause is designed, through the vehicle of cross-examination, “to promote reliability in the truth-finding functions of a criminaltrial.” (Kentucky v. Stincer 131 (1987) 482 U.S. 730, 737.) In refusing to allow the defense to fully cross-examine Detective Stotz, the court denied appellant his right to confront and cross-examine the key witnessto his interrogation and fully test his credibility and the reliability of the interrogation process itself, which often was in question. (U.S. Const., Amend.6; Pointer v. Texas (1965) 380 U.S. 400; Chambers v. Mississippi (1973) 410 U.S. 284, 302 [denial of examination of confessing accomplice violated due process]; Davis v. Alaska (1974) 415 U.S. 308, 317 [denial of examination of witness with juvenile record violated due process; United States v. McLernon (1984) 746 F.2d. 1098; United States v. Vargas (9th Cir. 1991) 933 F.2d 701 (9th Cir. 1991). The following excerpts from the defense’s attempts at cross-examination of Stotz reveal a pattern of sustained objections every time the defense posed a question that would require an answeras to the following categories of evidence. This evidence was extremely relevant and critical to the ability of the defense to demonstrate that the authorities overreached, appellant’s will was overborne, and his confession was notreliable and may have beenfalse: (1) Understanding of Proper Interrogation Technique Wherethe defense seeks to challenge a confession as involuntary orfalse,it is necessary and properto lay a foundationas to a police officer’s experience and training in interrogation techniques. (See Missouri v. Seibert (2004) 542 U.S. 600, 611 [discussing police interview and interrogation techniques]; Miller v. Fenton (1985) 474 U.S. 104, 109 [condemningcertain interrogation techniques]; Arizona v. Mauro (1987) 481 U.S. 520, 532, fn. 1 [J. Stevens, dissenting, discussing in general testimony before the Arizona Supreme Court regarding police officer’s interrogation experience and techniques]; Orozco v. Texas (1969) 394 U.S. 324, 328-329 [“The danger [about which the Court in Miranda was concerned] wasthat in such circumstances the confidence of the prisoner could be eroded by techniques such as successive interrogations by police acting out friendly or 132 unfriendly roles.”], citing Miranda v. Arizona (1966) 384 U.S. 436, 445.) When the defense attempted to do so in this case, however, the trial court improperly sustained prosecution objections on grounds of overbreadth, relevancy, and assuming facts not in evidence. During its examination of Detective Stotz, the defense attempted to lay a foundation as to his training and experience with respect to properly interrogating suspects and avoiding false confessions. The court sustained a relevance objection by the prosecution and then added that the question was overly broad and vague: Q [By Ms. Cronyn] “Could you describe the training that you had regarding interrogation of suspects? A [By Det. Stotz] Up until 1994 at the time of the murder, the only specific training that I had received in interrogating suspects or witnesses, for that matter, was that included during the basic academy, which I attended from August of 1983 to Decemberof 1983. Q What did you learn in the academy aboutinterrogating suspects in custody? Mr. Mitchell: Objection. Irrelevant. The Court: Andoverly broad and vague,I think. Sustained.” (19RT 2823) After the court sustained the objection as overly broad and vague,the defense attempted to question Stotz as to specific areas in which he received training. Thetrial court, having prohibited the defense from a obtaining a response to a question characterized as too broad, then sustained objections by the prosecution whenthe defense attempted to asked questions which were narrower and more specific: 133 Q [By Ms.Cronyn] “Well, did you have any training on the job as well from any officers? Mr. Mitchell: Objection. Irrelevant. The Court: Sustained. Q (By Ms. Cronyn] Did you receive anytraining in — in how to avoid eliciting false confessions? Mr. Mitchell: Irrelevant and assumesa fact not in evidence. The Court: Sustained. Q [By Ms.Cronyn] Did youreceive anytraining in the techniques of proper interrogation? Mr. Mitchell: Objection. Assumesa fact not in evidence and irrelevant. The Court: Sustained. Q [By Ms. Cronyn] Do you — did you train in—did you receive any training either at the academyor in your experience as a police officer in recognizing false confessions? Mr. Mitchell Objection. Assumesa fact not in evidence and irrelevant. The Court: Sustained.” (19RT 2823-2824) Onceagain, the court put the defense in a double-bind,disallowing an entire line of questioning first because it was too broad and second becauseit was too narrow. After that, the court improperly sustained objections as to relevance and assumingfacts not in evidence, whenin reality the questions wereentirely relevant: The defense wastrying to find out specifics as to Stotz’s training, to lay a foundation to demonstrate that he used interrogation techniques that were 134 improper and possibly outside department policy. The questions also did not assumeanyfacts not in evidence: The defense was asking about Stotz’s training in the area of false confessions; it was not assuming he hadtraining as to false confessions. (2) Direction and Instructions Received From District Attorney Mitchell Another key issue in this case is whether the authorities made a determination as to what crimes they wished to charge appellant, and then worked backwardsto justify that decision. For that reason, the actions of Deputy District Attorney William Mitchell were a critical part of the defense case that the confession extracted from appellant was not reliable and may have beenfalse. Just as the trial court refused to allow the defense to develop the record by examining Mitchell directly, the court also disallowed questionsasto his involvementin directing the interrogation process. A plain review ofthis portion of the transcript also leaves the reader with the impression that Mitchell was metaphorically sitting in court as a silent percipient witness to the interrogation and then jumping up and donninghis prosecutor’s hat: Q “Did anyone give you any advice as to how to proceed in this interrogation? A Yes. Q Whowasthat? A Mr.Mitchell from the DA’s office over the telephone. A Yet you spoke for 10 to 15 minutes in the morning before you turned on the tape? Q That’s correct. 135 A Did Mr. Mitchell make any suggestions about the information he wanted you to inquire about? Mr. Mitchell: Object as irrelevant. The Court: Sustained. Q [By Ms.Cronyn] When we’re talking about Mr. Mitchell, it’s the gentleman who’s sitting in court as the prosecutorin this case, is that right? A That’s correct. Q Did Mr.Mitchell tell you that he wanted you to focus your inquiry on whether or not Daniel Linton had any sexual interest in Melissa? Mr. Mitchell: Object again as being irrelevant. The Court: Sustained. Q [By Ms. Cronyn] Did Mr. Mitchell ask you to focus your inquiry as to whetheror not Melissa was killed during the course of a burglary? Mr. Mitchell: Objection, again. Irrelevant. The Court: Sustained. Q Andatthat time did Mr. Mitchell offer any suggestions as to how the interview should proceed? Mr. Mitchell: Objection, irrelevant. The Court: Sustained. Q [By Ms.Cronyn] Did you formulate in your own mindat that time an interview strategy to conclude the interview? Mr. Mitchell: Objection, irrelevant. 136 The Court: Sustained.” (L9RT 2862-2863) (3) Gaps occurring when the tape recorder was not on and questions as to whoinitiated conversation Prompted by gaps in the record, the defense also attempted to make a record as to any conversations that were not recorded. It is important to understand that initially, the quality of the tape of the November 29 interview in appellant’s bedroom was of such poor quality that the promises by District Attorney Mitchell and Detective Stotz that the past incident with Melissa was “water under the bridge” were notinitially audible. Recall, there apparently was a great deal of concern on the part of the defense as to whether there werecritical gaps in the initial poor-quality interview tapes, specifically as to promises of leniency by Detective Stotz and DDA Mitchell. On thefirst copy of the tape given to the defense, Stotz’s initial promise that appellant would not get in trouble for any prior sexual issue with Melissa waseither not on the tapeatall or not audible. (See 2CT 216-217, fn. 1) Similarly, DDA Mitchell’s promise to appellant that any prior incident was “water under the bridge” may have not been audible onthefirst tape. (See 2CT 347, fn. 1) Once again, the court allowed Mitchell to orchestrate what the defense was, and wasnot, allowed to elicit from Detective Stotz: “Q Andyou also, I believe, testified that your conversation with Daniel was only prompted by his questions, isn’t that fight? [para.] In other words, you didn’t initiate a conversation with Daniel, and you used the word, I believe, “prompted by his questions” in describing how this interview of this conversation with Daniel was conducted before the tape was turned on? Mr. Mitchell: Object as vague. The Court: Sustained. 137 Q [By Ms. Cronyn] Didn’t youtestify, page 50, lines 26 27: ‘Any conversation he and I had about the case was prompted byhis questions?’ Mr. Mitchell: Objection. Vagueasto time. The Court: Sustained. Q [By Ms. Cronyn] When youtestified in 1995 at the preliminary haring, you were referring, on page 50, to the conversation that you had with Daniel Linton before you turned on the tape recorded on 11/30/94, and you said, “But any conversation he and I had aboutthe case was promptedbyhis questions.” Isn’t that right? Mr. Mitchell: Object as assuming a fact not in evidence, and Miss Cronynis testifying. The Court: Hold on. Mr. Mitchell: As to what area he wasreferring to in the preliminary hearing transcript. Ms. Cronyn: I’ll withdraw the question.” (19RT 2868-2869) (4) Untruths and misrepresentations madeto a appellant to elicit admissions The defense also tried to explore what meansthe authorities used to elicit admissions from appellant, to no avail: Q [By Ms. Cronyn] “In other words, you madeit clear to Daniel that the promises you had madethe night before werestill in effect, right? Mr. Mitchell: Objection,calls for speculation. The Court: Wait a minute. [para.] Sustained. 138 Q [By Ms. Cronyn] Did Mr. Mitchell tell you when you talked to him on the phone on 11/30/94, or before you parted companyon 11/29/94, please make sure that Daniel understandsthat those promises that were made to him won’t be in effect if he confesses that he killed Melissa? Mr. Mitchell: Objectas irrelevant. The Court: Sustained. Q [By Ms. Cronyn] And, Officer Stotz, you were honestly truthful with Daniel when you made those comments aboutit being water underthe bridge; isn’t that right? Mr. Mitchell: Object again as calling for speculation and irrelevant. The Court: Sustained. Q [By Ms. Cronyn] Well, did you explain to Danielat this point because we want someevidence that we can play in court so that jury can hear it? Did youtell him that? Mr. Mitchell: Assumesa fact not in evidence. Objection. The Court: Sustained. Q [By Ms. Cronyn] Well, did you tell Daniel we’re gathering evidence here and one dayit’s going to be played in public and people are going to hear it? Mr. Mitchell: Objection, argumentative. The Court: Sustained. Mr.Mitchell: Andirrelevant. Q [By Ms. Cronyn] Did youtell Daniel if we don’t get you to say it out loud, the jury won’t hear it? 139 Mr. Mitchell: Objection, irrelevant. The Court: Sustained. Mr. Mitchell: Calls for speculation. The Court: Sustained. Q [By Ms. Cronyn] Now,over 40 times between November 30" — pardon me, November 29", 1994, and November 30", 94, Daniel had denied any sexual interest in Melissa, isn’t that right? Mr.Mitchell: Objection, calls for speculation and conclusion on this officer’s part. The Court: Sustained. Q [By Ms. Cronyn] Andisn’t it a fact that he had consistently up to this point denied any sexual interest in Melissa? Mr. Mitchell: Objection, calls for speculation and a conclusion. The Court: You can answer. Overruled. The Witness: No,I would say that’s — that’s not true.” (J9RT 2881-2882) Q [By Ms. Cronyn] “And he [Sergeant Rodriguez] tells you — he tells Daniel that he knowsthat Daniel’s nottelling the entire truth; isn’t that right? A [by Det. Stotz] That’s correct. Q Andif hetells the entire truth, hell feel so muchbetter, night? 140 A Yes. Q Andisn’t that a time-honoredinterrogation technique detectives use to — when a suspectis about to crack or give up? Mr. Mitchell: I’m going to object as calling for speculation and assuming facts not in evidence. The Court: Sustained. Q [By Ms. Cronyn] You think that Officer Rodriguez was honestly concerned at this momentthat Daniel confess to something so he would feel better? Mr. Mitchell: Objection, irrelevant. The Court: Sustained. Q [By Ms. Cronyn] But part of the process of catching a criminal is to manifest or to feign or to fake a kind of real concern, brotherly concern, for someone, right? Mr. Mitchell: Objection, irrelevant. The Court: Sustained.” (19RT 2886-2887) (5) Strategy to Persuade Appellant That He Intended to Rapeor Sexually Assault Melissa Either at the Time of Her Death or Several Weeks (or Months) Earlier Finally, the defense tried to question Stotz as to the closing moments of the interrogation, when based on the soundof his voice on tape appellant clearly was exhausted andalso hadlittle to eat all day. This information about a defendant’s mental state and fatigue is critical in assessing the voluntariness of his confession. 141 (See again, Leyra v. Denno (1954) 347 U.S. 556, 561; United States v. Wauneka (1981) 842 F.2d 1083, 1087-1088.) Recall also that appellant had little to eat or drink all day November 30. (See SSCT 232; 9RT 1094-1095) Q [By Ms. Cronyn] “Andyou couldtell, couldn’t you, from the tone of his voice at 3:40, when you go in to summarize the interview, that Daniel from his tone of voiceis starting to soundtired, isn’t he? Mr. Mitchell: Objection, calling for speculation The Court: Sustained. Q [By Ms. Cronyn] When you summarize what you believe Daniel had told you that day, Daniel answers sort of robotically, ‘yeah,’ ‘ yes,’ ‘yes’ ‘yes,’ is that right? Mr. Mitchell: Objection, calls for speculation and — The Court: Sustained.” (19RT 2892-2893) Q [By Ms. Cronyn] “Officer, whyis it at this point, when you could see that Daniel is under some duress, under somestress, that you just didn’t back off andsay,“It’s okay, Daniel. We’ll take a rest. You don’t have to say anything you don’t want to say”? Why didn’t you do that at this point? Mr. Mitchell: Objection.. Irrelevant. The Court: Sustained. Q [By Ms. Cronyn] Whydid youtell Daniel that he had to say something out loud? Mr. Mitchell: Objection. Irrelevant. 142 The Court: Sustained.” (19RT 2900-2901) Q [By Ms. Cronyn] “There was something in particular — there wasa goal here from Mr. Mitchell, Deputy District Attorney Chessell, Dr. Rath, Detective Sergeant Rodriguez — they had a goal, didn’t they? Mr. Mitchell: Objection. Calls for speculation. The Court: Sustained. Q [By Ms. Cronyn] Well, because this was yourfirst homicide investigation, you weren’t really calling the shots in terms of where — the direction of this interrogation; is that right? A No. Actually, as far as the San Jacinto Police Department personnel goes, I — I was, with some direction and someadvice from Mr. Mitchell. Q Okay. Butisn’t it a fact that Mr. Mitchell specifically asked you to inquire at the end about Daniel’s sexual interest in Melissa? Mr. Mitchell: Objection. Irrelevant. The Court: Sustained. Q [By Ms. Cronyn] Well, why wasit necessary for you to get Daniel to say this out loud? Mr. Mitchell: Objection. Irrelevant. The Court: Sustained. Q [By Ms.Cronyn] Well, after Daniel said, ‘I tried to rape her,’Detective Rodriguez asked, ‘When wasthis?’ Right? A. That’s correct. 143 Q Now,in orderto validate a confession, isn’t it a fact that you look for the details to see whetheror not the — the person confessing has a memory of whatthey didor they are just simply telling you what you want to hear’? Mr. Mitchell: Object as assuming facts not in evidence and calling for opinion andirrelevant. The Court: Sustained. Q [By Ms. Cronyn] Well, why did you ask, ‘Tell me what happened?’ after Daniel said, ‘Like the veryfirst time, like 2 months ago, whatever — wheneverit was’? Mr. Mitchell: Objection. Irrelevant. The Court... Sustained. Q [By Ms. Cronyn] Well, you — you testified that you wanted to getall of the details about what happened. Right? A That’s correct. Q Well, didn’t it cause you some concern that he didn’t seem to have any details about this attempted rape? Mr. Mitchell: Objection. Irrelevant. The Court: Sustained. Q [By Ms. Cronyn] And then you say, “Okay. Well, how far did you get with her? Is that right? A That’s correct. Q And Linton says, ‘Not very far at all. Nowhere.’ Right? A Yes. Q Well, what details did Daniel Linton give you that made you certain that his ‘I tried to rape her’ statement was true? 144 Ms. Mitchell: Objection. Irrelevant. The Court: Sustained.” (19RT 2904-2906) Q [By Ms. Cronyn] “Oh. Let me see. On page 80, after this, you say, “Did a thought cross your mind yesterday whey you wentin there and found here there?’ Right? A That’s correct. Q And then youtell Daniel, ‘Obviously, it must have crossed your mind.’ Isn’t that right? A That’s correct. Q So you were telling Daniel that he had a thought. Right? Mr. Mitchell: Objection. Calling for speculation. The Court: Sustained. Q [By Ms.Cronyn] Whydid youtell Daniel that it must have crossed his mind? Mr. Mitchell: Objection. Irrelevant why he said something. The Court: Sustained. Q [By Ms.Cronyn] Youtold Daniel Linton on 11/29/94 that you thought Melissa wasa pretty cute gal. A That’s correct. Q When you saw Melissa, did you think because she was a pretty cute gal — did the thought cross your mind of some sexual interest in her? Mr. Mitchell: Objection. Argumentative. 145 The Court: Sustained. Q [By Ms. Cronyn] Whydid youtell Daniel that Melissa was a pretty cute gal? Mr. Mitchell: Objection. Irrelevant. The Court: Sustained. Q [By Ms. Cronyn] Whydid youtell Daniel, ‘Obviously,it must have crossed your mind’? Mr. Mitchell: Objection. Irrelevant. The Court: Sustained. Q [By Ms.Cronyn] Now,forthe first time, Daniel concedes what you already believed. Mr. Mitchell: Objection. Q. [By Ms. Cronyn] Hesays, ‘Initially, but I decided notto. Right? Mr. Mitchell: Objection. Assumesa fact not in evidence. The Court: Sustained. Q [By Ms. Cronyn] Well, you believe that it must have crossed Daniel’s mind about raping Melissa on the 29". Right? Mr. Mitchell: Objection. Vague. The Court: Sustained. Q [By Ms. Cronyn] Well — and then you say, ‘Okay. How far into it?’ Right. A That’s correct. Q So nowfinally Daniel’s giving up,isn’t he? Copping out. Right? 146 Mr. Mitchell: Objection. Calls for speculation. The Court: Sustained.” (I9RT 2908-2909) Q [By Ms. Cronyn] “Did youtell him that one day this tape that you were making would be playedto a jury? Mr. Mitchell: Objection,irrelevant. The Court: Sustained. Q [By Ms. Cronyn] Well, part of the procedure in obtaining evidenceis getting a taped interview;isn’t that right? A That’s correct. Q Whatis the purpose of getting a tape-recorded interview? Mr. Mitchell: Object as irrelevant. The Court: Overruled. I think you can answerthat. The Witness: The purposeof taking the interviewis to memorialize what is said between myself and Mr. Linton. Q [By Ms. Cronyn] Andisn’t it also true that the purpose of getting a taped interview is so that you have concrete evidenceto play in front of a jury? Isn’t that right? Mr. Mitchell: Objection. Argumentative. The Court: Sustained.” (20RT 2980-2981) Q [By Ms. Cronyn] “And when yousaid, ‘Tell me what happened,’ hesaid, ‘I didn’t do anything, though,’ right? A Yes. 147 Q And yousaid, ‘Well, how far did you get?’ And hesaid, ‘Not very far at all, no where.’ Right? A Correct. Q Buthe wasreferring at this point to something that happened two monthsbefore, right? Mr. Mitchell: Objection, calls for speculation on the officer’s part. The Court: Sustained. Q [By Ms. Cronyn] Page 79, what does Danieltell you when you ask, ‘Whenwasthis’ in reference to the time hetried to rape her? What doeshetell you? A ‘Like the very first time, like two months ago, whatever, wheneverit was.’ Q Does Daniel Linton describe anything happening twoorthree weeks before Melissa died in your last interrogation from 3:40 to 4 o’clock? A Again,I’d have to review the transcripts from that time period. Q Please do. Mr. Mitchell: Yourhonor, I’m going to object as calling for speculation on his part as to whether or not Daniel’s referring to two weeks before or two months before and improper opinion. We have the transcript in evidence. I don’t think it’s necessary to have his opinion as to what he’s talking aboutinit. The Court: Iagree. Sustained. Q [By Ms. Cronyn] Well, when Daniel spokeofa prior incident, you wanted to clarify, did you not, what had occurred? Is that right? Mr. Mitchell: Objection, irrelevant. 148 The Court: Overruled. [para] You can answer. The Witness: Yes, that’s correct. Q [By Ms. Cronyn] So what, if anything, does Daniel Linton tell you that he did to Melissa two to three weeks before she died in yourlast interrogation from 3:40 to 4 o’clock? Mr. Mitchell: Objection. Asked and answered. The Court : Sustained. Ms. Cronyn: Asked, Your Honor, but not answered. The Court: I believe it was. Ms. Cronyn: I think he was going to review thetranscript. The Court: Yes, but that was — it wasstill asked and answeredpreviously, and I sustained the earlier objection as asked and answered.” (20RT 3081-3082) Q [By Ms. Cronyn] “Tt was after that that you told Daniel, ‘The sooner youtell me the truth, the sooner Ill turn this machine off and the sooner we’ll all be on our way,’ right? Mr. Mitchell: I’m going to object as asked and answered. And under 352 this whole line of questioningis irrelevant, because what wassaid bythe officers and by Linton is on tape and ina transcript, and I don’t think it’s necessary to have the officer go over it line byline. The Court: I agree. It’s been asked and answered, and I think under 352 we’ll just move on to anotherline of questioning. Q [by Ms. Cronyn] Andyou told Mr. Mitchell that Daniel at this point had not yet admitted to a sexual interest in Melissa? 149 Mr. Mitchell: Objection, irrelevant. The Court: Sustained. Q [By Ms. Cronyn] You told Mr. Mitchell that you would continue to pursuethis line of questioning as to whether ornot Daniel had a sexualinterest in Melissa; isn’t that right? Mr.Mitchell: Objection, assumesa fact not in evidence and irrelevant. The Court: That’s correct. Sustained. Q [By Ms. Cronyn] Mr. Mitchell made some suggestions to you about how you might beable to get these words from Danielin yourlast interrogation; isn’t that right? Mr. Mitchell: Objection. Assumesa fact not in evidence and irrelevant. The Court: Sustained. Q [By Ms. Cronyn] You weretrying to threaten Daniel when you told him that you wouldnotstop the interrogation until he told you what you wanted to hear; isn’t that right? Mr. Mitchell: Objection. Irrelevant and argumentative. The Court: Sustained. Ms. Cronyn: Crane v. Kentucky, Your Honor. The Court: It’s argumentative, Counsel. Move on. Ms. Cronyn: Okay. Q [By Ms. Cronyn] What, if anything, did you say to encourage Danielto tell you what you had previously told him you personally believed? Mr. Mitchell: Objection, irrelevant. Under 352 is repeating what’s in the transcript, is irrelevant and unnecessary. 150 The Court: Sustained. Q [By Ms. Cronyn] Well, you ask questions for a purpose in an interrogation, do you not, Officer? Mr. Mitchell: Objection, asked and answered. The Court: Sustained. Q [By Ms. Cronyn] Now,up to 11:40, isn’t it a fact that Daniel Linton had not admitted that he had any sexualinterest in Melissa either on 11/29 or on any previous occasion? Mr. Mitchell: Objection, asked and answered,andirrelevant opinion evidence. The Court: Sustained. Q [By Ms. Cronyn] Youtestified, did you not, that at this point, 11:20, Daniel had not admitted to you that he had a sexual interest in Melissa Middleton; isn’t that right? Mr. Mitchell: Objection, asked and answered. The Court: Counsel, your questions are incredibly redundant. Move on to something else. You’re covering the same territory over and over and overagain. Ms. Cronyn: Okay. I apologize, Your Honor, but I don’t think it’s clear in the record. Last time we askedthis question, he said, yes, he had. He has previous testimony wherehe saysthat he does not believe that Daniel admitted a sexual interest in Melissa at this point. The Court: I think we’ve covered this area quite adequately. Moveon. Q [By Ms.Cronyn] At 3:40 in the afternoon, before you went in with your final interrogation,isn’t it a fact that at this point Daniel Linton had not admitted that he had a sexual interest in Melissa either on the 29" or any previous occasion? 151 Mr. Mitchell: Objection, asked and answered. The Court: Counsel, do you have a new line of questioning or should wejust cut this off right now? Ms. Cronyn: That’s — The Court: I’m goingto cut you offif that’s all, because you’re just going over the samethings. Ms. Cronyn: No,it’s not 11:20. This is 3:40. We were talking about 11:20 before. This is 3:40. The Court: It’s still the same subject matter. Move on to something else.” (20RT 3084-3087) Q [By Ms. Cronyn] “How many times did you ask Daniel Linton or how manytimesdid he denythat he had anintentto steal on 11/29/94 before he said on page 18 ‘maybe’? A Well — Mr. Mitchell: Objection, irrelevant. Also, excuse me, misstates his testimony. The Court: It is irrelevant. Sustained. Q [By Ms.Cronyn] Well, you were searching for the truth; is that right, Officer? Mr. Mitchell: Objection, asked and answered.. The Court: Sustained. Q [By Ms. Cronyn] In your search for the truth, Daniel denied goinginto steal at least three times before he finally said maybehedid;is that right? Mr. Mitchell: Objection, assumesa fact not in evidence and irrelevant. 152 The Court: Sustained. Q [By Ms.Cronyn] You told Daniel at a certain point at the end of the interrogation, 3:40 to 4 o’clock, ‘I don’t buy this story about you going over there to look for money.’ Wasthat lie or is that the truth? Mr. Mitchell: Objection, irrelevant and argumentative. The Court: Sustained. Q [By Ms. Cronyn] Isn’t it a fact that you, in fact, didn’t buy this story about Daniel going over there to look for money? Mr. Mitchell: Objection, irrelevant. The Court: Sustained. Q [By Ms. Cronyn] Isn’t it a fact, Officer, that one of the time-honored techniquesof police interrogation is that sometimes youtell a suspect whatisn’t true, like, for example, we have forensic evidence, fingerprints? Mr. Mitchell: Objection, asked and answered. The Court: Sustained. Q [By Ms. Cronyn] Well, when youtold Daniel, ‘I don’t buy this story about you going overthere to look for money,’ were you trying to get Daniel to agree with you about something else? Mr. Mitchell: Objection. Irrelevant what he wastrying to do. The Court: Sustained. Q [By Ms. Cronyn] You were trying to coerce a confession, were you not, Officer? Mr. Mitchell: Objection. Argumentative and irrelevant what he wastrying to do. The Court: Sustained. 153 Q [By Ms. Cronyn] You gave Daniel Linton a choice earlier in the interview betweentelling you that he went in to steal and he wentin there to try to have sex with Melissa, isn’t that right? Mr. Mitchell: Objection. Argumentative andcalls for improper opinion evidence. The Court: Sustained. Q [By Ms.Cronyn] You said to Daniel, ‘Do you think -- do you — you wentin the house a couple of weeks ago and yesterday to maybefool arounda little bit, try to have sex with Melissa?’ And Danielsaid, ‘I didn’t know she was home.’ [para] And then after that Daniel said he needed some money;isn’t that right? Mr. Mitchell: Objection, compoundandirrelevant. The Court: Sustained. Q [By Ms.Cronyn] You wanted Daniel to explain why he went into the house, did you not? A Yes. Q And hetold you that he did not gointo steal, right? Mr. Mitchell: Objection, asked and answered. The Court: Yeah. Sustained. Q [By Ms. Cronyn] You told Daniel that he wentin to fool around little bit and try to have sex with Melissa, isn’t that right? Mr. Mitchell: Objection, asked and answered. The Court: Sustained. Mr. Mitchell: Andirrelevant. The Court: Sustained. 154 Q [By Ms. Cronyn] After you told Daniel what your opinion wasabout him having a sexualinterest, then he decided that he needed some money,isn’t that right? Mr. Mitchell: I’d object as calling for speculation on the officer’s part and, again, on this line of questioning. Sheis asking him to repeat what’s in the transcript, in 15B, and that’s unnecessary testimony, and I’d object to the whole line of questioning. The Court: Sustained.” (20RT 3090-3093) Q [By Ms. Cronyn] “Did you mention in your report that Mr. Mitchell and yourself made express promises to Daniel on 11/29/94 in his bedroom? Mr.Mitchell: Objection, assumes a fact not in evidence and calls for an improperlegal opinion. The Court: Sustained. Q [By Ms. Cronyn] Did you put anything in your report about what you told Daniel Linton on 11/29/94 with regard to whether or not he ever grabbed, touched, kissed or even had sex with Melissa in the past? Mr. Mitchell: Objection,irrelevant. The Court: Sustained.” (20RT 3097-3098) Q [By Ms. Cronyn] “Approximately how many questions — pardon me. I misspoke myself. The 29", in Daniel’s bedroom — A That’s correct. Q -- was when you conducted the half-hour interview with Mr. Mitchell; is that right? A That’s correct. 155 Q And how about — approximately how many questions did Mr. Mitchell ask? Mr. Mitchell: Objection. Irrelevant. The Court: Sustained. Q [By Ms. Cronyn] Isn’t it a fact that of the 227 questions that were asked, Mr. Mitchell asked 129 of them? Mr. Mitchell: Objection. Assumesfacts not in evidence. The Court: Sustained. Q [By Ms. Cronyn] Isn’t it a fact that Mr. Mitchell conducted at least half, if not more than half, of that interrogation? Mr. Mitchell: Objection. Irrelevant. The Court: Sustained. Q [by Ms. Cronyn] Were youattempting to leave the impression that you were the person who was doing — conducting the interview of Daniel, the principal interviewer? Mr. Mitchell: Objection. Argumentative. The Court. Andirrelevant. Sustained. Q [By Ms. Cronyn] Well, isn’t it a fact that it was Mr. Mitchell who wasactually taking the lead in terms ofthe direction of the interview of Daniel Linton in his bedroom on November29, 1994? Mr. Mitchell: Objection. Calls for improper opinion evidence. The Court: Sustained.” (21RT 3111-3112) 156 Cc. Prejudice Detective Stotz was appellant’s primary interrogator. It was Stotz, often at the direction of Mitchell, who controlled the strategy, tactics, and inquiries that ultimately led appellant to whisper wearily after a long day of questioning, “I tried to reap [sic] her . . .” But when the defense attempted to probe Stotz’s strategy, tactics and observations of appellant’s demeanor, the trial court cut off the line of questioning, usually on relevance grounds. In fact, these factors were extremely relevant to the issue of voluntariness. Stotz, like Mitchell the night before, was a key percipient witness to appellant’s apparent emotional state. Stotz, like Mitchell, appears to have wanted to persuade appellant to confess to sexual intent, at all costs. By restricting the cross-examination of Stotz, the court took away from the defense another critical tool in dispelling the notion that appellant voluntarily confessed to wanting to, and attempting to, have sex with Melissa on the prior occasion. Based on the foregoing factors rendering this a close case and in combination with the other errors that impinged the jury’s assessment of appellant’s confession, the trial court erred in restricting the cross-examination of Stotz. (Chapman v. California, supra, 386 U.S.at p. 24.) 157 I. JUROR MISCONDUCT: THE TRIAL COURT REFUSED TO EXCUSE A JUROR WHO ADMITTEDLY VIOLATED INSTRUCTIONS AND DISCUSSED THE CASE WITH HER HUSBAND, IN VIOLATION THE SIXTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND ARTICLE I, SECTION 7 and 16 OF THE CALIFORNIA CONSTITUTION. At the beginning of deliberations, Juror #1 confidently shared with her fellow jurors the fact that, “I’m the first to admit that I discussed this with my husband and we were talking about the case.” (31RT 4821) After this was revealed, a hearing was held in which Juror #1 told the court that she told her husband she questioned Melissa’s screaming reaction when appellant entered the house. Juror #1 claimed she also told her husband not to respond when shetold him aboutthe case, as she would need to “vent” from time to time. Based on these facts, the trial court ruled, “It’s certainly ... at the edge of propriety. And I think I’ve admonished her again notdo it any further [sic]. But I don’t think she’s gone over the edge. And so I think to — to excuse her at this point would not be appropriate or necessary.” (31RT 4842-4843) The court wasin error. A. Standard of Review In reviewing a claim ofjuror misconductorjuror bias, the reviewing court “accept[s] the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citation]” (People v. Nesler (1997) 16 Cal.4™ 561, 582.) Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court's independent determination. [Citations]” (Nes/ler, supra, at p. 582.] 158 B. Factual and Procedural Background On March 11, 1999, the second day of deliberations, the jury foreperson sent a note to the court that was read into the record. The note stated that, “"As foreman,I feel I should report that one of the jurors, during our discussion, said ...they had a discussed a specific aspect of the case with her husband". (31RT 4820) The court questioned the foreperson further, and he said the juror madethe statement whenthe jury was discussing the point in time when appellant came into the Middleton house and walked upstairs. The juror said that if it were her and someone came in that she knew, she would not automatically scream. (31RT 4820-4821) Thejuroralso said, “I’m the first to admit that I discussed this with my husband and we weretalking about the case.” (31RT 4821) The other jurors indicated that they “don’t want to go there,” meaning they had been instructed not to discuss the case with anyone exceptother jurors. (31RT 4821) After some discussion (31RT 4821-4828), the juror, Juror #1, entered the courtroom and wasquestioned by the court. Juror #1 said that during the first few days of the trial, she told her husband that she would havereacted differently than Melissa did when appellant appeared in the room. She said she would not have freaked out and started screamingif her neighbor walked in the way appellant did. (31RT 4820-4832) She told her husband that if something “slipped out’ or she needed to vent, he should not respond or ask her any questions. Her husband never responded to her and they have never had any discussions regarding the case. (31RT 4832-4835) The court admonished Juror # 1 not discuss the case with anyone. The defense argued that Juror #1 should be excused because of her actions and because she was disingenuousin her claim that she just needed to “vent” and that her husbanddid not respond. The prosecution felt the defense argument was speculative. (31RT 4835-4842) The court overruled the defense objection and allowed Juror #1 to remain on the jury because she only “vented” and there was no 159 indication she received feedback from her husband. The court concluded, “It’s certainly ... at the edge of propriety. And I think I’ve admonished heragain not do it any further [sic]. But I don’t think she’s gone over the edge. And soI think to — to excuseher at this point wouldnot be appropriate or necessary.” (31RT 4842-4843) C. Governing Law and Application A criminal defendanthas a constitutionalrightto trial by unbiased,impartial jurors. (U.S. Const., Sixth and 14th Amend.; Cal. Const., art. I, §16; Jrwin v. Dowd (1961) 366 U.S. 717, 722; People v. Hughes (1961) 57 Cal.2d 89, 95.) A single juror whois partial or motivated by prejudice deprives a defendantofhis Sixth Amendmentrightto trial by an impartial jury. (See United States v. Plache (9th Cir. 1990) 913 F.2d 1375 [Eastern Dist. of Calif.]; United States v. Eubanks (9th Cir. 1979) 591 F.2d 513, 517; United States v. Hendrix (9th Cir.) 549 F.2d 1225, 1227, cert. den. (1977) 434 U.S. 818.) A defendantis “entitled to be tried by 12, not 11, impartial and unprejudiced jurors. ‘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. Holloway (1990) 50 Cal.3d 1098, 1112, 269 Cal.Rptr. 530, disapproved on other groundsin People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Due process requires "a jury capable andwilling to decide the case solely on the evidencebeforeit, and a trial judge ever watchful to preventprejudicial occurrences and to determine the effect of such occurrences when they happen." (Smith v. Phillips (1982) 455 U.S. 209, 217.) “Juror misconduct .... leads to a presumption that the defendant was prejudiced thereby and mayestablish juror bias. [Citations]” (People v. Nesler (1997) 16 Cal.4" 561, 578.) The effect of out-of-court information upon the jury is assessed in the following manner. “When juror misconduct involvesthe receipt of information about a party or the case from extraneoussources, the verdict will 160 be set aside only if there appears a substantial likelihood ofjuror bias. [Citation] Such bias may appearin either of two ways:(1) if the extraneous material, judged objectively, is so prejudicialin andofitself that it is inherently and substantially likely to have influencedajuror; or (2) even if the information is not ‘inherently’ prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determinesthat it is substantially likely a juror was ‘actually biased’ against the defendant.” (Nes/er, supra, at p. 578.) If there is a “substantial likelihood that a juror was actually biased,” the verdict must be set aside, “no matter how convinced [the Court] might be that an unbiased jury would have reached the sameverdict, because a biased adjudicatoris one of the few structural trial defects that compel reversal without application of a harmless error standard.” (Nesler, supra, at p. 578.) Whatconstitutes “actual bias” of a juror varies according to the circumstancesof the case. [Nes/er, supra, 16 Cal.4"t p. 580.) The United States Supreme Court has set the following standard for assessing jurorpartiality, “Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down noparticular tests and procedureis not chained to any ancient and artificial formula.” (United States v. Wood (1936) 299 U.S. 123, 145-146, 57 S.Ct. 177, 185, 81 L.Ed. 78.) “ ‘The theory of the law is that a juror who has formed an opinion cannotbe impartial.’ [Citation.] [{] It is not required, however, that the jurors be totally ignorant of the facts and issues involved.... It is sufficientif the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” ( Irvin v. Dowd, supra, 366 U.S. at pp. 722-723, 81 S.Ct. at pp. 1642-1643, italics added, (quoting Reynolds v. United States (1878) 98 USS. (8 Otto) 145, 155, 25 L.Ed. 244.) An impartial juror is someone “capable and willing to decide the case solely on the evidence”presentedattrial. ( Smith v. Phillips, supra, 455 U.S.at p. 217; In re Carpenter(1995) 9 Cal.4™ 634, 652.) 161 UnderCalifornia law, “if a juror's partiality would have constituted grounds for a challenge for cause during jury selection, or for discharge duringtrial, but the juror's concealmentof such a state of mindis not discovereduntil after trial and verdict, the juror's actual bias constitutes misconductthat warrants a new trial under Penal Code section 1181, subdivision 3. [Citations]” (People v. Nesler, supra, 16 Cal.4" at p. 581, citing People v. Galloway (1927) 202 Cal. 81, 89-92, 259 P. 332; People v. Meza (1987) 188 Cal.App.3d 1631, 1642-1643, 234 Cal.Rptr. 235.) “Thus, actual bias supporting an attack on the verdict is similar to actual bias warranting a juror's disqualification. [Citations].” (People v. Nesler, supra, at p. 581.) “[JJuror misconduct maystill be found wherebiasis clearly apparentfrom the record. [Citation]” (People v. San Nicholas (2004) 34 Cal.4" 614, 646.) A juror whoviolates his or her oath andthe trial court’s instructionsis guilty of misconduct. “““Whena person violates [her] oath as a juror, doubtis cast on that person's ability to otherwise perform [her] duties.” ’ [Citation]” (People v. Nesler, supra, 16 Cal.4"at p. 586, citing In re Hitchings (1993) 6 Cal.4™ 97, 120.) "Misconduct bya juror, or a nonjuror's tampering contact or communication with a sitting juror, usually raises a rebuttable ‘presumption’ of prejudice. [Citations.]" (In re Hamilton (1999) 20 Cal.4th 273, 295.) Juror #1 clearly committed misconduct under both the federal and state tests. She demonstrated — indeed flaunted to the other jurors — a willingness to “vent” to her husband aboutthe case, despite the fact that she specifically had been instructed not to do so. (People v. Nesler, supra, 16 Cal.4"at p. 586; In re Hamilton, supra, 20 Cal.4"at p. 295.) It appears from her testimony, moreover, that Juror #1 formed an opinion aboutthe case early in the trial in which she questioned whether and why Melissa screamed when appellantentered the house. (See again, 31RT 4820-4832) This opinion, which she conveyedto a third-party, hadto be based on evidence that camedirectly from appellant and bore on his credibility, either as described in opening statements orin one ofhis statements to 162 the police, because appellant was the only person who witnessed Melissa’s reaction. Juror #1 held this opinion within her through the entire trial and then on the first full day of deliberations felt compelled to share her conversation aboutit with fellow jurors. Her misconduct was palpable. D. Prejudice Underfederal law, Juror #1’s misconductis structural error, because he was deprived of his right to a unanimousverdict of 12 impartial jurors. (See Arizonav. Fulminante (1991) 499 U.S.279.) In Mach v. Stewart (9™ Cir. 1998) 137 F.3d 630, the Ninth Circuit observed that the presence of a biased juror wasa structural defect because, “... “The entire conduct ofthe trial from beginning to end is obviously affected ... by the presence on the benchof a judge whois not impartial.’ [Citation] Weseelittle differences betweena trial by a judge whois not impartial and trial by a biased jury. [fn. omitted] (Mach, supra, at p. 634.) Underthis standard, appellant need not demonstrate prejudice. (See Mach, supra, at p, 634, citing Arizona v. Fulminante, supra, 499 U.S. 279.) UnderCalifornia law, once misconducthas been established, the defendant must demonstrate that it was prejudicial. (People v. Danks (2004) 32 Cal.4"™ 269, 302,relying on Jn re Hamilton (1999) 20 Cal.4" 273, 295.) However, “The defendant need notaffirmatively prove the jury's deliberations were improperly affected by the misconduct, for that cannot be done under Evidence Codesection 1150... Therefore, “The presumption of prejudice is an evidentiary aid to those parties whoare able to establish serious misconductof a type likely to have had an effect on the verdict or which deprived the complaining party of thorough consideration of his case, yet who are unable to establish by a preponderance of the evidence that actual prejudice occurred. The law thus recognizes the substantial barrier to proof of prejudice which Evidence Codesection 1150 erects, and it seeks to lower that barrier somewhat.” [Citation]’” (Jn re Carpenter (1995) 9 Cal.4" 634, 652.) 163 Bias will be found under California lawif ““‘the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror.’ [Citation] ” (Danks, supra, at p. 303.) "‘[E]ven if the extraneous information was not so prejudicial, in andofitself, as to cause “inherent” bias underthe first test,’ the nature of the misconduct andthe ‘totality of the circumstances surrounding the misconduct muststill be examined to determine objectively whether a substantial likelihood of actual bias nonetheless arose.’ [Citation] ‘Under this second, or “circumstantial,” test, the trial record is not a dispositive consideration, but neither is it irrelevant. All pertinent portionsofthe entire record, includingthe trial record, mustbe considered. 'The presumption ofprejudice may be rebutted,inter alia, by a reviewing court's determination, upon examiningthe entire record, that there is no substantial likelihood that the complaining party suffered actual" bias.’ [Citation]” (Danks, supra, at p. 303.) Thetrial court’s decision to allow Juror #1 to remain onthe jury fails under the second test. As stated above, Juror #1 formed an opinion aboutthe case early in the trial in which she questioned whether and why Melissa screamed when appellant entered the house. (See again, 31RT 4820-4832) This opinion, which she conveyedto a third-party, had to be based on evidence that camedirectly from appellant and bore onhis credibility, either as described in opening statements or in oneofhis statements to the police, because appellant was the only person who witnessed Melissa’s reaction. Juror #1 held this opinion within her through the entire trial and then onthefirst full day of deliberations felt compelled to share her conversation about it with fellow jurors. Based on thetotality of the circumstances, there is a substantial likelihoodthat Juror #1 was actually biased against appellant andthat her bias infected the deliberative process with the other jurors. Thetrial court’s ruling is even more problematic because Juror #1’s bias and misconduct were revealed onthe first full day of deliberations, at a time when 164 replacing her with an alternate would not have wasted judicial resources andat the same time assured appellant’s rights were honored. Reversal is required. 165 lil. THE TRIAL COURT DEPRIVED APPELLANT DUE PROCESS, A FAIR TRIAL AND THE RIGHT TO A JURY DETERMINATION IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND ARTICLEI, SECTIONS 7 AND 16 OF THE CALIFORNIA CONSTITUTION, WHEN IT FAILED TO INSTRUCT PURSUANT TO CALJIC NO. 2.70 THAT UNRECORDED ORAL ADMISSIONS SHOULD BE VIEWED WITH CAUTION The defense theory of the case included the contention that Detective Glenn Stotz was not a credible witness and one of the two primary architects of the false confession coerced from appellant. His credibility proved questionable in several instances during cross-examination attrial. (See argument _, ante.) One of the precursors of this defense theory was that the interview by Stotz on appellant’s front porch the afternoon of November 29, 1994 may not have occurred the way Stotz portrayed.It is during this interview that the idea of a prior attack on Melissa by appellant is first introduced in the form of a purported admission by appellant that he woke up twoor three weeksearlier half-clothed and believed he had been sleepwalking. This admission, if made, was the foundation of the prosecution charge that the prior incident was not just sleepwalking but rather an attempted sexual assault and that it demonstrated appellant’s intent to sexually assault Melissa several weeks or months later when he strangled her. The problem with appellant’s sleepwalking story is that it was not tape-recordedand the jury was not given the critical instruction that an unrecorded admission such as the sleepwalking story should be viewed with caution pursuantthe final paragraph of CALJIC No.2.70. The error was prejudicial not only because the jury was not admonished to be cautious about Detective Stotz’s uncorroborated and unrecorded testimony, but also because the sleepwalking story was returned to by the prosecution again and 166 again in the coercive interrogation that resulted in a questionable confession by appellant at the end of the day on November30, 1994 that “I tried to reap [sic] her ... two months ago...whatever...” (Mot. to Supp., Exh. 3, at 5 SCT 233) The instructional error requires reversal. A. Standard of Review Instructional errors and omissions are subject to independent or de novo review. (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411, relying on People v. Waidla (2000) 22 Cal.4th 690,733, 737.) B. Factual and Procedural Background 1. Motion to Suppress Thepolice interviewed appellant several times: Twice during the afternoon of November 29, 1994 in front of his house; in the evening of November29, 1994 in his bedroom; and on November 30, 1994 in the police car and at the station. With the exception of these first two interviews on appellant’s doorstep, all of the interviews were tape recorded. At the hearing on the defense motion to suppress, there was no testimony aboutthe two first unrecorded interviews. (See SRT 541- 549) 2. Trial Testimony At trial, Detectives Michael Lynn and Glenn Stotz both testified about the first two interviews. Stotz knocked on the door of appellant’s house and appellant answered the door. Stotz introduced himself as a detective with the San Jacinto Police Department and asked if appellant had heard about what happened next door. Appellant replied that he had already heard that Melissa had been killed. Stotz questioned appellant as to whether he had heard or seen anything out of the ordinary during the day. Appellant said that he had been homeall day and that he did not see anything out of the ordinary. He added that he did not know Melissa 167 well but that she was a good friend of his sister. (18RT 2745) Appellant asked how she waskilled, and Stotz replied that she was choked to death. (18RT 2746) Stotz left to canvass other residences in the neighborhood. He returned 30 to 40 minutes later accompanied by Detective Lynn. (18RT 2746) Appellant answered the door again. Lynn and Stotz introduced themselves andtalked to him on the front porch. Lynn noticed some scratches on appellant’s right arm near the wrist. (17RT 2628-2629; 18RT 2743-2745) Stotz asked appellant again about his relationship with Melissa, and he replied again that he did not know herthat well. (17RT 2630; 18RT 2747) Appellant’s sister Stacey was standing next to him this time and said, “Huh-uh, you play fight with her all the time.” (17RT 2630; 18RT 2745-2748) Appellant looked at Stacey and had a shocked look on his face. (17RT 2631; 18RT 2752-2753) The defense objected to Stotz’s characterization of appellant’s reaction to Stacey’s statement and commented that when it attempted to elicit the same information during the hearing on the motion to suppress, it was irrelevant. The prosecution argued that Stacey’s statement was admissible as an adoptive admission and for a non-hearsay purpose to explain appellant’s subsequent conduct. (18RT 2749-2751) The court overruled the defense objection. (18RT 2751) Lynn stepped awaytotalk to Stacy, and Stotz stayed with appellant. (17RT 2631) Stotz continued his testimonyas follows: Q “And what did he explain to you washis relationship, if any, with Melissa Middleton at that time? A I believe he continued to say that he didn’t know her very well. That he [sic] was friends with his sister Stacey. Q Did you make knownto him that — or did you ask him if he knew anything about an incident in which Melissa had indicated to her parents that she had been attacked up in the room in the middle of the night sometime previously? 168 A Yes, I did. Q And did you question Daniel about that then? A I did. Q Washe able to give you any information aboutthat, or did he — The Witness: Initially he denied any knowledge of whatI wasreferring to regarding the attack. Q Did he subsequently provide you with a description of an incident he recalled? Ms. Cronyn: Objection. Leading. The Court: Overruled. The Witness: Yes. He,later on, I guess you could say, recanted his story and told me that he thought he knew whatI was referring to. And he talked about an incident that occurred 2 to 3 weeks prior where he said he woke up in his front yard at around midnight or so with — Ms. Cronyn: Objection. Narrative. And move to strike. Improper opinionasto ‘recanted.’ The Court: Overruled. The Witness: Where he woke up with his jeans on and underwear, no shirt and no socks. He felt that he may have been sleepwalking. Q [by Mr. Mitchell] Did he say where he woke up at during that incident or occasion? A Well, he referred to the driveway near the door. And then when I asked him about the garage door, he — he said no. On the sidewalk between the grass and the door. So I never — I was never quite sure exactly where he was talking about where he woke up. I just know it was somewherein his front yard. 169 Q Did you ask him why he would wake up in strange places? A Hesaid that he believed he sometimes sleepwalked, and that on occasion he had woke up sometimes in front of his refrigerator, and he thought because he was hungry during the night.” (18RT 2752-2754) Stotz further testified that he saw scratches on appellant’s hands. Photographs were taken of those scratches. (18RT 2755) When Stotz asked appellant to hold out his hands, he noticed that appellant “was visibly nervous. His arms and hands were shaking, and his palms were extremely sweaty.” When Stotz asked about the marks, “He told me that he thought he’d received those scratchesearlier in the day from playing with his cat.” (18RT 2756) At that point, Stotz left. (I8RT 2756) 3. Instructions After a lengthy discussion about several special instructions about confessions and admissions proposedbythe defense, this discussion followed: Mr. Mitchell: “ _. the use note under 2.70 says that the paragraph dealing with ‘Oral statements of a defendant should be viewed with caution’ is unnecessary when an oral statement is proved by a tape -recording. So I would move to strike that bracketed paragraph because it’s not necessary in this case. It’s under People v. Hines. It’s at the top of page 104 in the book. Ms. Cronyn: The second interview at the defendant’s door, the first interview, were not tape-recorded. There’s evidence of statements made off tape in this case. ... because we have evidence in this case of unrecorded portions and because it’s our belief that the jury should be instructed to view confession evidence with caution, whether or not it’s recorded, we would request that it stay 1n. 170 Mr. Mitchell: Well, the whole purpose of this was designed and included for purposes of nontape-recorded statements, and it should not be used where you have a tape -—recorded statement. The Court: Well, I’m going to include language about — I’m going to include language about — I’m going to insert something about not made in court or not taped or exclude the whole thing or take the whole thing out, one or the other. Ms. Cronyn: Okay. Well, then, in light of that, take the whole thing out. The Court: Take the whole thing out? Ms. Cronyn: But you have — but please note our objection for the record. The Court: Right. [para.] So, for the record, on No. 5 I am taking outlines, looks like, 18, 19 20 basically.” (29RT 4479-4481) The court instructed the jury with CALJIC No.2.70 as follows: “CALJIC 2.70 CONFESSION AND ADMISSION — DEFINED A confession is a statement made by a defendant in which he has acknowledged his guilt of the crime for which heis ontrial. In order to constitute a confession, the statement must acknowledge participation in the crimes as well as the required criminalintent. An admission is a statement made by the defendant which does not byitself acknowledge his built of the crimes for which the defendantis on trial, but which statement tends to provehis guilt whenconsidered with the rest of the evidence. Youare the exclusive judges as to whether the defendant made a confession or an admission, and if so, whether that statement is true in whole orin part. 171 You should consider evidence about the manner in which defendant’s admissions were madein determining the probative weight of those admissions.” (13CT 3466) C. Governing Law and Application “As a general proposition a defendantis entitled to an instruction as to any recognized defense for whichthere exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (1988) 485 U.S. 58, 63; Conde v. Henry (2000) 198 F.3d 734, 739) Even in the absence of a request, the trial court must instruct on the general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case. (Neder v. United States (1999) 527 U.S. 1; United States v. Gaudin (1995) 515 U.S. 506, 515; People v. Guiuan (1998) 18 Cal.4th 558, 569.) “The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, including self-defense and unconsciousness, and on the relationship of these defenses to the elements of the charged offense.” (People v. Sedeno (1974) 10 Cal.3d 703. 716 [overruled on other grounds in People v. Breverman(1998) 19 Cal.4" 142, 157]; accord, People v. Abilez (2007) 41 Cal.4” 472, 517; People v. San Nicolas (2004) 34 Cal.4™ 614, 669.) The failure to instruct the jury as to such a defense deprives the defendant of his due processright to present a defense. “Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard offairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense.” (California v. Trombetta (1984) 467 U.S. 479, 485.) Subjecting a defendant to a criminal trial with a jury incorrectly charged as to the applicable law so infuses the trial with unfairness as to deny appellant equal 172 protection under the law and his right to due process of law. (U.S. Const., Sixth Amend.; Estelle v. McGuire (1991) 502 U.S. 62, 75; Hicks v. Oklahoma (1980) 447 US. 343, 346; Hernandezv. Yist (9th Cir. 1991) 930 F.2d 714, 716.) The due process clauses of the Fourteenth Amendment of the United States Constitution and of Article I, sections 7 and 15 of the California Constitution provide that a person may not be deprived “oflife, liberty, or property without due 9process of law.” Due process of law requires that a person accused of a crime is entitled to an orderly legal procedure in which his substantial rights are respected. (People v. Sarazzawski (1945) 27 Cal.2d 7, 11.) A state court's failure to correctly instruct the jury on the defense may deprive the defendant of his due processright to present a defense. (See Barker v. Yukins (6" Cir. 1999) 199 F.3d 867, 875-876 (granting habeas relief under AEDPA because the erroneous self-defense instruction deprived the defendant's of a “meaningful opportunity to present a complete defense”) (relying on Trombetta, supra, 467 U.S.at p. 485.). CALJIC No. 2.70 instructs the jury as to how to evaluate a confession or admission. The final paragraph of No. 2.70 provides, “Evidence of an oral admission of the defendant not made in court should be viewed with caution.” (CALJIC No. 2.70, California Jury Instructions — Criminal, Fall 2008 Ed.) “When the evidence warrants, the court must give the cautionary instruction sua sponte. [Citations]” (People v. Carpenter (1997) 15 Cal.4™ 312, 392, citing People v. Lang (1989) 49 Cal.3d 991, 1021, and People v. Beagle (1972) 6 Cal.3d 441, 455, superseded on other grounds by statute in Verdin v. Superior Court (2008) 43 Cal.4™ 1096, 1106.) “The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.” (People v. Beagle, supra, at p. 456.) This rule applies only where the confession or admission is not tape-recorded. (People v. Hines (1964) 61 Cal.2d 164, 173, overruled on other grounds by People v. Murtishaw (1981) 29 Cal.3d 733, 775- 775, fn. 40.) CALCRIM No. 358 contains similar language that, “You must consider with caution evidence of a defendant’s oral statement unless it was 173 written or otherwise recorded.” (CALCRIM No. 358, Judicial Council of California, Criminal Jury Instructions, Spring 2008 Ed.) In this case, the defense maintained that Officer Stotz was not credible asto his testimony regarding his multiple interrogations of appellant. Thefirst two of these on the afternoon of November 29, 1994 were not recorded, making the cautionary paragraph of CALJIC No. 2.70 particularly critical. By refusing to give the cautionary instruction, the trial court deprived appellant of a recognized defense, a denial of due process, fundamental fairness, and the right to a jury determination as to all issues. (U.S. Const., Sixth Amend.; Estelle v. McGuire (1991) 502 U.S.62, 75; Hicks v. Oklahoma (1980) 447 U.S. 343, 346; Hernandezv. Yist (9th Cir. 1991) 930 F.2d 714, 716.) D. Prejudice Thetrial court’s failure to provide the cautionary portion of No. 2.70 raises federal constitutional issues under the Sixth and Fourteenth Amendments,as set forth above. As noted above, where such federal constitutional error has occurred, the burden shifts to the state to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Chapmanv. California (1967) 386 U.S. 18, 24.) As also discussed, appellant’s unrecorded admission about the prior incident formed the basis for questioning by the authorities as to whether what appellant recalled as sleepwalking was actually the sexual assault described by Melissa to her parents several weeks or months before her death. Had the jury been told to view appellant’s unrecorded statements with caution,it is likely it would have been wary of Detective Stotz’s testimony. In addition to several instances at the preliminary hearing and hearing on motion to suppress, the defense caught Stotz lying at trial during cross- examination. Stotz admitted: Q [by DPD Cronyn] “And that’s not what Daniel Lintonsaid,is it? A [by Stotz]. No,it’s not. 174 Q In fact, he said that he didn’t put his hands downherpantsortryto. A. That’s correct.” (19RT 2911) When askedat trial about a statement in his police report that the thought crossed appellant’s mind to rape Melissa and that “therefore, that’s why he unbuttoned the button on her pants and unzipped them,” Stotz was not able to point to where in the interview appellant made the statement. (1ORT 2913-2914) The statement does not exist in the interview. For these reasons and all the reasons discussed regarding cumulative prejudice, admission of appellant’s unrecorded admissions on the afternoon of November 29 was not harmless beyond a reasonable doubt and requires reversal. (Chapmanv. California, supra, 386 U.S. at p. 24.) 175 IV. CUMULATIVE PREJUDICE As the foregoing arguments demonstrate, the trial court made majorlegal errors in this case, any one of which calls out for reversal. When the errors are viewed together, however, it also becomes clear that each error was amplified by every other error, so that the cumulative effect was greater than the sum of the parts. In Chambers v. Mississippi (1973) 410 U.S. 284, the Supreme Court held that the combined effect of multiple trial court errors violates due process whereit renders the resulting criminal trial fundamentally unfair. In Chambers, the high court concluded that the cumulative effect of individual errors “denied [the defendant] a trial in accord with traditional and fundamental standards of due process” and “deprived [him] of a fair trial”. (Chambers, supra, at pp. 298,302- 303.) In Chambers, state evidentiary rules required exclusion of a recanted confession of another man, McDonald, who was believed to be the actual shooter; forbade cross-examination of McDonald, who wastechnically Chambers’ witness; and also required exclusion of the hearsay testimony of three witnesses that McDonald had confessed to them. (Chambers, supra, at pp. 287-293) Under these circumstances, the Supreme Court ruled that the combined effect of the trial court’s rulings deprived Chambers of a “trial in accord with traditional and fundamental standards of due process.” (/d. at p. 302.) In Parle v. Runnels 9" Cir. 2007) 505 F.3d. 922, the court analyzed the cumulative error analysis and observed, “Like the evidence excluded in Chambers, this wrongfully admitted and excluded evidence went to the heart of the central issue in the case. In Chambers, the excluded evidence pertained to the identity of the shooter-Chambers's primary defense-while, here, the erroneously admitted and excluded evidence pertained to the only relevantissue (and Parle's only defense): Parle's state of mindat the time of the crime.” (Parle v. Runnels, supra, at p. 932.) Accordingly a due process 176 violation occurs pursuant to Chambers and Parle when several errors combine to unfairly impugn the central issue raised by the defense. The interplay of the errors in this case, like those in Chambers, undermine confidence in the reliability of the jury’s determination. First and foremost, appellant’s “confession” had all the hallmarks of having been coerced, involuntary, and possibly false. The jury did not know that, although at least one juror wasskeptical about the reliability and accuracy of the confession. (See p. 99, ante., citing 31RT 4844.). When the defense attempted to educate the jury as to why the confession was unreliable and should be discounted, the trial court metaphorically tied its hands behind its back: The court would not allow the defense to examine District Attorney Mitchell as to the surrounding circumstances of his questioning of appellant the night of the homicide and the following day, even though it was Mitchell himself who promised appellant leniency in his “water under the bridge” pronouncement. It would not allow the defense to examine any of the detectives involved in the interrogation, to the point that the record is still not clear as to whether anything wassaid to appellant off the record. It would not allow the defense to call Dr. Ofshe or Dr. Leo, respected experts who would have told the jury about the body of empirical research demonstrating the unreliability of confessions obtained under coercive circumstances. It failed to instruct the jury pursuant to CALJIC No. 2.70 that unrecorded oral admissions should be viewed with caution, which impacted the jury’s assessment of the testimony of Detective Stotz about his unrecorded conversations with appellant. Finally, it allowed a juror to remain on the panel, even though she admittedly violated her oath to not discussthe case. The cumulative effect of multiple errors can violate due process even where no single error rises to the level of a constitutional violation or would independently warrant reversal. (Chambers, supra, at p. 290, fn. 3; Parle v. Runnels (9" Cir. 2007) 505 F.3d 922.) “{T]he Supreme Court has clearly established that the combined effect of multiple trial errors may give rise to a due 177 processviolation if it renders a trial fundamentally unfair, even where each error considered individually would not require reversal. [Citations]” (Parle v. Runnels, supra, 505 F.3d. at p. 926, citing Chambers, supra, 410 U.S.at p. 290,fn. 3, 298, 302-303 and Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643; accord, Harris v. Wood (9" Cir. 1995) 64 F.3d 1432, 1438-1439; United States v. Wallace (9 Cir. 1988) 848 F.2d 1464, 1475-1476; People v. Hill (1998) 17 Cal.4" 800, 844- 845.) Indeed, where there are a numberoferrorsat trial, "a balkanized, issue-by- issue harmless error review" is far less meaningful than analyzing the overall effect ofall the errors in the context of the evidence introducedattrial against the defendant. (United States v. Wallace, supra, 848 F.2d at p. 1476.) Reversal is required unless it can be said that the combined effect of all of the errors, constitutional and otherwise, was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S.at p. 24; People v. Williams (1971) 22 Cal.App.3d 34,58-59 [applying the Chapmanstandard to the totality of the errors when errors of federal constitutional magnitude combined with othererrors].) 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'strial. (See People v. Hayes (1990) 52 Cal.3d 577, 644 [court considers prejudice of guilt-phase instructional error in assessing that in penalty phase].) In this context, this Court has expressly recognized that evidence that may otherwise notaffect the guilt determination can have a prejudicial impact on the penalty trial. "Conceivably, an error that we would hold non-prejudicial on the guilt trial, if a similar error were committed on the penalty trial, could be prejudicial. Where, as here, the evidenceofguilt is overwhelming, even serious error cannotbe said to be such as would, in reasonable probability, have altered the balance between conviction and acquittal, but in determining the issue of penalty, the jury, in deciding betweenlife imprisonment and death, may be swayed one wayoranother 178 by any piece of evidence. If any substantial piece or part of that evidence was inadmissible, or if any misconduct or other error occurred, particularly where, as here, the inadmissible evidence andothererrors directly related to the character of appellant, the appellate court by no reasoning process can ascertain whether there is a ‘reasonable probability’ that a different result would have been reached in absence of error." (People v. Hamilton (1963) 60 Cal.2d 105, 136-137; see also People v. Brown (1988) 46 Cal.3d 432. 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]; Jn re Marquez (1992) 1 Cal.4th 584,605,609 [an error may be harmless at the guilt phase but prejudicial at the penalty phase].) Other courts similarly have recognized that "what may be harmless error in a case with less at stake becomes reversible error when the penalty is death." (Irving v. State (Miss. 1978) 361 So.2d 1360, 1363.) Accordingly, even if the individual errors are harmless on their own, the cumulative effect of these errors upon the penalty verdict must be examined with special caution. (See Burgerv. Kemp (1987) 483 U.S. 776, 785 ["duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case"].) Based on the foregoing, individually and cumulatively, the trial court’s errors unfairly prejudiced appellant’s defense in violation of due process. The errors resulted in an unbalanced case that unfairly tilted the evidence in favor of the prosecution. Reversal is required. (Chambers v. Mississippi, supra, 410 U.S. at pp. 298, 302-303.) 179 PENALTY PHASE ISSUES Vv. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS, A FAIR TRIAL, AND THE RIGHT TO PRESENT A DEFENSE PURSUANT TO THE FEDERAL AND STATE CONSTITUTIONS, WHEN IT REFUSED TO ADMIT EVIDENCE THAT THE AUTHORITIES COERCED HIM INTO MAKING A FALSE CONFESSION, GIVING RISE TO LINGERING DOUBT PURSUANT TO PENAL CODE SECTION 190.3, SUBDIVISION(Kx) A. Introduction The jury did not go into penalty deliberations in a vacuum. Ten days earlier, the jury had reached a guilt verdict only after great difficulty. Recall, the jury commentedthat onejuror felt that the police interrogation of appellant was “a lie” (31RT 4844); asked when a Miranda waiver occurs (31RT 4803-4815); and also asked “1.Is it too far to speculate whether Melissa let Daniel into the house?” and “2. Please clarify if speculation can be used in determining innocencein this case?” and “3. What is the definition of speculation?” (31RT 4844) Taken together, the record of guilt deliberations reveals that one or more jurors did not believe the interrogation occurred as recounted by the prosecution witnesses and were concerned about appellant’s innocence, but felt constrained as to how much they could speculate. The jury eventually reached a verdict of guilt beyond a reasonable doubt, but a lingering doubt hung like a big question mark in mid-air. At the beginning of the penalty phase, the defense sought to introduce evidence tendingto reinforcethat lingering doubt, as it was permitted to do under Penal Codesection 190.3, subdivision (k) and established authorities. To that end, the defense proffered evidence that appellant may have been innocent of sexual motivation when Melissa was strangled, the special circumstance that was the basis for the prosecutor’s decision to seek the death penalty. That offer of proof 180 encompassed the testimony of three witnesses also proffered at the guilt phase, Richard Leo, Ph.D., Cecil Whiting, Ph.D., and Deputy District Attorney William Mitchell, whose testimony cumulatively and individually would have reinforced the defense contention that appellant was coerced by the police and the district attorney to makea false confession. Ascould be expected, the district attorney vigorously opposed admission of any ofthis testimony, especially when it involved the prospect of being called as a witness. He argued that the evidence either was not relevant or was minimally probative or was cumulative. The court was focused little differently. It took the position that unless appellant recanted, the issue of the confession was speculative. From that premise, the court implied that appellant would have to testify to establish a foundation for the fact that he was recanting but then insisted that it was not suggesting that he had to take the stand. Having placed the defense in this classic double bind, the court then would not allow the defense to use any of its proffered testimony to further educate the jury as to why the confession maynot have been a reliable recitation of what actually happened. In so ruling, the court deprived the defense ofits ability to present a penalty phase defense and establish lingering doubt under Penal Code section 190.3, subdivision (k) as to whether appellant was guilty of the special circumstances of attempted rape or lewd acts with a child under the age of 14, as set forth in sections 190.2, subd. (a)(17)(i11) and (v) and charged in the information. (See 1CT 20-22) The error was prejudicial and requires reversal of the penalty of death. 18] B. Factual and Procedural Background 1. Proffered Testimony of Richard Leo, Ph.D. About False Confessions, Argument and Ruling At the commencement of the penalty phase, the defense indicated that it would like to call Richard Leo, Ph.D.to testify as to the factors which may have caused appellant to give a false confession relative to the issue of lingering doubt pursuant to Penal Code section 190.3, subdivision (k). (31RT 4902-4914) The defense relied on its offer of proof during the guilt phase. (31RT 4903) Recall, the defense soughtto call Dr. Leo or his partner, Richard J. Ofshe, Ph.D., during the guilt phase to demonstrate “how police interrogation techniques utilized in this case affect the trustworthiness of the defendant’s statements.” (See Memorandum of Points and Authorities in Support of Defendant’s Introduction of Expert Testimony atTrial, at 3CT 544-554) The Memorandum included Exhibit A, “The Decision to Confess Falsely: Rational Choice and Irrational Action,” Ofshe and Leo, in Denver University Law Rev., Nov. 1997. (3CT 555-701) Thetrial court denied the defense motion during the guilt phase. (22RT 3423-3429 [2-18-99]; 23RT 3587-3614 [2-22-99]; 25RT 3733-3741 [2-24-99].) The prosecution opposed the penalty phase request to call Dr. Leo as a witness on the grounds his testimony was irrelevant and that its probative value was outweighed by the fact that it would be unduly time consuming. (31RT 4903) The defense explained that Dr. Leo had made an empirical study of taped police interrogations, was able to correlate the factors that produce false confessions, and could speak to the factors that called into question the trustworthiness of appellant’s confession, specifically the coercive nature ofthe interrogation and express promises of leniency. (31RT 3905) The defense concluded, “our expert should be able to express an ultimate opinion upon [whether the confession was false] at the penalty phase, but we would be content with being able to put him on 182 to express a more limited opinion,if that’s what we were allowed to do.” (31RT 4906) The trial court focused on whether appellant had recanted the confession. When the defense pointed out that during the interrogation appellant repeatedly denied sexual intent, the court responded that he finally said that he did have sexual intent. (31RT 4909) When the defense protested that it should not have to put appellant on the stand to establish the fact that he recanted, the court said it was not suggesting that he testify but if a defendant in his situation does not testify “he’ll be found guilty if he doesn’t, in many cases, if there’s no evidence. But there was some evidence. So doesn’t he have someobligation, if he wants to be found not guilty, to present evidence on his behalf, which you haven’t done?” (31RT 4912-4913) The defense responded that the reliability of the confession was undermined by the testimony of its pathologist, who demonstrated that the strangulation could not have occurred the way appellant described. (31RT 4913) The court overruled the defense request, stating “we have these people coming in theorizing about these confessions, because all we have is speculation, and we don’t base these cases on speculation.” (31RT 4912) The court ruled, “I’m not going to allow Dr. Leoto testify. I just don’t see any basis for it whatsoever.” (31RT 4914) 2. Proffered Testimony of Cecil Whiting, Ph.D. About Appellant’s Mental State, Argument and Ruling Next, the defense requested permission to call Cecil Whiting, Ph.D. “‘to talk about some of the defendant’s general psychological characteristics and how those correlate to the facts of the crime, since this is penalty phase. ... I would ask Your Honorfor a ruling as to whether or not Dr. Whiting could express an opinion based on his interviews with the defendant.” (31RT 4914-4915) The defense 183 added that “any psychologist who offers an opinion about a person based on a psychological test and interview haveto rely at least partly on what they hear from the client, just like any doctor relies in making a diagnosis on wherethe ... patient says he haspain... if the jury can’t know ... the basis for that opinion ... he’s totally hamstrung in getting that portion of the defense case before the jury in a proper way.” (31RT 4915) The defense further explained that Dr. Whiting would be able to testify concerning whether appellant entered the Middleton residence with the intent to rape or molest, or with the intent to steal. (31RT 4915-4916) The prosecution countered that the defense “is seeking to ... bring before the Court through the testimony of Dr. Whiting the defendant’s self-serving extrajudicial statements to supposedly this doctor. I don’t know. I have not been given discovery of what the defendant said to this doctor. And it completely prohibits the People from cross-examining the nature of that statement. It was not tape-recorded.... All we have are those excerpts of what the defendant told him that he decidedto put into his written opinion, which through numerousinstances in cross-examination was shownto be in error... So to allow under the guise of giving his reasons and then giving opinions based upon what the defendantsaid, the court is allowing incompetent hearsay without the People’s ability to cross- examine and test the basis and/or reliability of that information.” (31RT 4916) The prosecution then analogized this situation to one in which a defendant attempts to avoid testifying by having another inmate testify as to what the defendant told him. (31RT 4917, citing inter alia, People v. Carpenter (1997) 15 Cal.4™ 312; People v. Whitt (1990) 51 Cal.3d 620, 642) The defense clarified that “we’re not talking about anything more than the support for Dr. Whiting’s opinion that Daniel was suffering a panic attack. And this really has to do with Daniel’s statements to Dr. Whiting concerning his physical sensation concerning what he wasphysical[sic] feeling at the time. And it is supported by the record we have in front of Your Honor whenhetold Dr. Rath how scared he was, scared, scared, scared, scared. Too scared. ‘Even if I did 184 find her attractive, I was too scared.’ ... And if Dr. Rath had, I submit, really been looking for evidence of his true intent at the time and not trying to gather the prosecution’s evidence, he might have obtained from Daniel Linton the additional information that he had heart palpitations or shortness of breath or whatever it was, narrowing of vision, all those things that might contribute or assist Dr. Whiting and might assist Daniel at this state in showing that he was suffering a panic attack.” (31RT 4920) The court ruled that Dr. Whiting could testify but could rely only on what wasalready in the record andthe results of his tests, and not on anything appellant said to him. (31RT 4920, 4922) The defense did not call Dr. Whiting. 3. Proffered Testimony of Deputy District Attorney William Mitchell About Appellant’s Interrogation, Argument and Ruling The defense also made an offer of proof that Deputy District Attorney William Mitchell was a necessary percipient witness as to all aspects of appellant’s interrogation, including the fact that Mitchell was the person who told appellant that any prior encounter with Melissa was “water under the bridge” and that he retained Dr. Rath to extract a confession from him. (31RT 4923-4925) Mitchell vigorously opposed this request and argued that the offer of proof was cumulative to other evidence. (31RT 4925-4926) The court denied the defense request to call Mitchell. (31RT 4926) 4. Jury Instructions The court instructed the jury with CALJIC No. 8.85, which provides in relevantpart: In determining which penalty is to be imposed on defendant, you shall consider all of the evidence which has been received during any part of thetrial of this case. You shall consider, take into 185 account and be guided by the following factors, if you determine them to be applicable... (a) The circumstancesof the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances foundto betrue.... (k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of the defendant’s character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which heis ontrial. You must disregard any jury instruction given to you in the guilt or innocence phaseofthis trial which conflicts with this principle.” (13CT 3657) 5. Prosecution Closing Argument The prosecution arguedin closing, “It may be argued to you that there’s lingering doubt that you can consider in this case now, and that you should use this to impose a sentence less than death. Lingering doubt, will be argued to you,is that feeling or that gnawing at you, based upon the evidence in this case, that you’re not completely, positively, 100 percent absolutely sure of someaspect of the charges in this case... “And based upon the physical evidence that we have — the underwear, the semen on the underwear, the possession of the ring, and the defendant’s own words and statements — his statements aren’t lies in their entirety. He lied about the key at first. And he didn’t want to admit what his sexual motivation was. But you have his own statements that corroborate the physical evidence and the 186 condition with which Melissa Middleton’s body was found, her zipper unzipped, the circumstance ofthe prior offense. “All of that shows you — no lingering doubt here as to why the defendant committed these crimes, how he committed these crimes, or why he committed the crimes. He killed Melissa Middleton. He did it because of some sexualfrustration, some urge, some need that he had. There’s no lingering doubt.” (35RT 5564) C. Governing Law and Application Penal Code section 190.3 provides in relevant part that in determining whetherin a capital case to fix the penalty at death or life without the possibility of parole, “the trier of fact shall take into account any of the following factors if relevant... (k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Evidence that gives rise to lingering doubt under this factor is required under both state and federal authorities. The California courts recognize the admissibility and importance of evidence of lingering doubt at the penalty phase of a capital trial. Beginning with People v. Terry (1964) 61 Cal.2d 137, this Court has recognized that at a penalty retrial, the trial court should admit "evidence tending to show defendant's possible innocence of the involved crimes" so that the jury may consider any lingering doubts of the defendant's guilt as a mitigating factor in the penalty determination. (Id. at p. 153; see comment regarding origination of lingering doubt concept in Terry in People v. Gay (2008) 42 Cal.4™ 1195, 1218.) "[R]esidual doubt about a defendant's guilt is something that juries may consider at the penalty phase under California law, and trial court errs if it excludes evidence material to this issue. 187 [Citations.]" (People v. Hawkins (1995) 10 Cal.4th 920, 966-967, cited in People v. Gay, supra, at p. 1219-1220.) In People v. Gay (2008) 42 Cal.4” 1195, this Court revisited the issue of lingering doubt and held that in a capital case the circumstancesofthe offense, including evidence creating a lingering doubt as to the defendant's guilt of the offense, is admissible at a penalty retrial under Penal Code section 190.3 [subdivisions (a) and (k)].” (Gay, supra, at p. 1221) The Court in Gay further explained that the fact “‘the defendant cannot relitigate the issue of guilt or innocence[ ] does not preclude the admission of evidence relating to the circumstances of the crime or the aggravating or mitigating circumstances, including evidence which may mitigate a defendant's culpability by showingthat he actually did not kill the victim. The test for admissibility is not whether the evidence tends to prove the defendant did not commit the crime, but, whether it relates to the circumstances of the crime or the aggravating or mitigating circumstances.’ [Citation]” (/d. at p. 1223.) In a concurring opinion, Justice Werdegarclarified that the holding in Gay extends to any penalty phase: “Whetherin the penalty phase of a unitary trial or in a penalty retrial, Penal Code section 190.3 provides the applicable substantive law. We hold today, as we have in past decisions, that lingering doubt evidence is relevant underthat statute. (Maj. opn., ante, at p. 462, 178 P.3d at p. 439-40.) Our holding today, although made in the context of a penaltyretrial, logically applies as well to an ordinary penalty phase. Whatis relevant in one is equally relevantin the other.” (People v. Gay, supra, at p. 1229 [Werdegar, J. concurring opn., Kennard, Acting C.J., and Marchiano, J., concurring]; see also People v. Alcala (1992) 4 Cal.4th 742, where both phasesof the trial were heard by the same jury.) At the penalty phase "defendanttestified on his own behalf (not having done soat the guilt phase)" and denied committing the murder. (/d. at p. 766.) This Court did not indicate any disapproval of that procedure. It held instead that the exclusion of evidence of wrongful convictions in other capital cases "did not prevent 188 defendant from introducing relevant evidence regarding the circumstances [of the victim’s death]” (Alcala, supra, at pp. 807.) Thus California recognizes lingering doubt as a legitimate defense and valid mitigating factor at the penalty phase of a capital trial. (See People v. Anderson (2001) 25 Cal.4" 543, 591, fn. 16; People v. Riel (2000) 22 Cal.4th 1153, 1209; People v. Padilla (1995) 11 Cal.4th 89, 951-952; People v. Hawkins, supra, 10 Cal.4th at pp. 966; People v. Terry, supra, 61 Cal.2d at p. 153; People v. Sanchez (1995) 12 Cal.4th 1, 77.) Innocence is a constitutionally relevant mitigating factor. (Herrera v. Collins (1993) 506 U.S. 390, 417; id. at p. 419 [conc. opn. of O'Connor, J..],430-431 [dis. opn. of Blackmun] "Eighth Amendmentconcernsare satisfied when a capital defendantis not deprived of the opportunity to present evidence on lingering doubt and to have the jury weigh this evidence." (People v. Wader (1993) 5 Cal.4th 610,660; accord, People v. Cox (1991) 53 Cal.3d 618, 677.) The same principles apply to evidence of innocence. Because both are relevant mitigating factors, "a defendant may not be precluded from offering such evidence" (People v. Cox, supra, at p. 677), "and a trial court errs if it excludes evidence material to this issue" (People v. Hawkins, supra, 10 Cal.4th at p. 967 [citations omitted].) Federal law that addresses the right to present a defense further reinforces the importance of admitting lingering doubt evidence. The right to present a defense is protected by the federal guarantee of due process of law. (U.S. Const., Amend. 14; Hicks v. Oklahoma (1980) 447 U.S. 343, 346; Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295,1300.) In Chambers vy. Mississippi (1973) 410 U.S. 284, the Supreme Court held that exclusion of evidence vital to a defendant's defense constitutes a denial of a fair trial in violation of the due process clause of the Fourteenth Amendmentto the Untied States Constitution. In Chambers, state evidentiary rules required exclusion of a recanted confession of another man, McDonald, who wasbelieved to be the actual shooter; forbade cross-examination of McDonald, who was technically 189 Chambers’ witness; and also required exclusion of the hearsay testimony ofthree witnesses that McDonald had confessed to them. (Chambers, supra, at pp. 287- 293) Underthese circumstances, the Supreme Court ruled that the combinedeffect of the trial court’s rulings deprived Chambersofa “trial in accord with traditional and fundamental standards of due process.” (/d. at p. 302.) The Court in Chambers observed, “The right of an accused in a criminal trial to due processis, in essence,the right to a fair opportunity to defend against the State's accusations. ... ‘A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense-a right to his day in court-are basic in our system of jurisprudence; and these rights include, as a minimum,a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.’” (Chambers, supra, at p. 294, citing In re Oliver (1948) 333 U.S. 257, 273.) In Davis v. Alaska (1974) 415 U.S. 308, a Supreme Court concerned with the abridgementof a defendant's right to present all evidence in his defense, overturned his conviction because the lower court would not allow impeachment of a material witness with a prior juvenile record. (/d., at p. 317.) The Court concluded, "[A] defendant's right to present his defense theory is a fundamental right and. . . all of his pertinent evidence should be considered bythetrier of fact." (/d., at p. 317.) In Rock v. Arkansas (1987) 483 U.S. 44, the Supreme Court issued another decision supporting this principle. There, the defendant was convicted of manslaughter after the lower court, pursuant to an Arkansasstatute, refused to allow herto testify to matters recalled only after she had been hypnotized. The Arkansas Supreme Court affirmed and reasoned, much as the court did here, that the prejudicial effect of such testimony outweighed its probative value. The Supreme Court reversed, once again emphasizing the important right to present exculpatory evidence. (Rock, supra, 483 U.S. at p. 62.) The California courts also support the fundamental right of the accused to present all relevant evidence vital to his or her defense. In People v. McDonald 190 (1984) 37 Cal.3d 351, this Court commented that, "Evidence that is relevant to the prime theory of the defense cannot be excluded in wholesale fashion merely because the trial would be simpler without it. Rather, it should be accompanied by instructions clearly explaining to the jury the purpose for which it is introduced." (Id, at p. 372.) In People v. De Larco (1983) 142 Cal.App.3d 294, the Court emphasizedthat, "Evidence Code section 352 must bow to the due process right of a defendantto a fair trial and to his right to present all relevant evidence of significant probative value to his defense.’ [Citation.] ... Inclusion of relevant evidence can safeguard the defendant's rights as much as that of the prosecution. ([Citation.] Indeed, discretion should favor the defendant in cases of doubt because in comparing the prejudicial impact with probative value the balance ‘is particularly delicate and critical where whatis at stake is a criminal defendant's liberty.’ [Citations.]" (/d., at pp. 305-306.) Moreover, at the penalty trial in a capital case, the defendantis entitled to introduce all relevant mitigating evidence that might persuade the jury to return a verdict less that death. (U.S. Const., Amends. 8 and 14; Cal. Const., art. I, §§ 7,15, and 17; Skipper v. South Carolina (1986) 476 U.S. 1, 4]; Lockett v. Ohio (1978) 438 U.S. 586, 604.) The right to introduce relevant evidence on any material issue is separately secured by provisions ofstate law. (Cal. Const., art. I, § 28, subd. (d); Evid. Code, § 351.) All these authorities make clear that a defendant has a right to introduce evidence in his or her defense, and state evidentiary rules impinging that right must give wayto the federal constitutional mandate. (See e.g., Chambers v. Mississippi, supra, 410 U.S.at p. 302; Davis v. Alaska, supra, 415 U.S.at p.; 317.) The trial court in its foregoing rulings gutted the defense’s ability to establish lingering doubt, even though the defense rightfully was entitled to do so under Penal Codesection 190.3, subdivision (k), the federal and state constitutions (U.S. Const. Amend. 14; Cal. Const., art. I, §15), and the authorities set forth above. The court deprived the jury of critical information whenit refused to allow 191 the defense to call Richard Leo, Ph.D., Cecil Whiting, Ph.D., and Deputy District Attorney William Mitchell to establish that appellant may have been innocent of sexual motivation when Melissa was strangled. The court took away appellant’s right to present the only penalty phase defense that could spare his life: If the defense had been properly allowed to educate the jury as to why the confession resulting from his interrogation was notreliable, it is likely the jury would have maintained a lingering doubt as to whether he was not guilty of the rape and lewd conduct special circumstances and sentenced him to life without the possibility of parole rather than death. D. Prejudice Impingement of appellant’s constitutional right to present a defense is evaluated under the standard of prejudice for federal constitutional error. Where federal constitutional error has occurred, the "burden shifts to the state ‘to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24.) The state cannot meet that burdenhere. In assessing prejudice, it is critical to put the penalty phase evidence in context. During guilt phase deliberations, several jurors were very concerned aboutthe possibility appellant made a false confession and may haveactually been innocent of the rape/lewd conduct special circumstance. (See again 31RT 4844 and Introduction, ante.) Because the jury was not apprised of the dynamics that could have led appellant to falsely confess he intended to sexually assault Melissa, exclusion of this evidence alone was sufficient to destroy the fairness of the trial. It also is important to note that during its penalty phase closing argument, the prosecution relied heavily on the confession, remakingthat, “you have his own statements that corroborate the physical evidence and the condition with which Melissa Middleton’s body was found, her zipper unzipped, the circumstance of the prior offense” and “He killed Melissa Middleton. He did it because of some 192 sexual frustration, some urge, some need that he had. There’s no lingering doubt.” (35RT 5564) Several indicators in the penalty phase record raise a compelling inference that the jury struggled with the penalty determination and could — and should — have been fairly assisted by evidence as to why appellant may have wholly or partially been coerced into making a false confession. Asdiscussed, long deliberations are one factor that demonstrates a case was close and difficult for the jury to decide. (See People v. Cardenas (1982) 31 Cal.3d 897, 907; see also, People v. Filson (1994) 22 Cal.App.4th 1841 [deliberations longer than the evidentiary phase of the trial]; People v. Rubalcava (1988) 200 Cal.App.3d 295, 301 [jury deliberations for "almost two days"], People v. Rucker (1980) 26 Cal.3d 368 [deliberations for nine hours]; and People v. Zucker (1980) 26 Cal.3d 368, 391 [jury deliberations for nine days].) The length of deliberations for the penalty phase wasas almostas long as those for the guilt phase. On March 25, 1999, at 2:00 p.m., the jury retired to commencedeliberations. (13CT 3662.) The jury continued its deliberations on March 29, 1999, from 9:15 a.m. to 3:11 p.m. (13CT 3664.) After sending the court a note about deadlock (discussed below), the jury continued its deliberations on March 30, 1999, from 9:00 a.m. to 10:52 a.m. (13CT 3664.) At that point, the jury announced that it had reached a verdict on penalty. (36RT 5699-5700) The fact that a jury becomes deadlocked is another factor that indicates a close and difficult jury determination (See People v. Barraza (1979) 23 Cal.3d 675, 684; People v. Molina (2000) 82 Cal.App.4" 1329, 1335-1336[lack of deadlocked or holdout jurors demonstrated no prejudice].) On the second day of deliberations, the jury sent the court a note that they were unable to reach a verdict. The court sent a note back stating, “Due to the length of these proceedings and the complex issues and the fact that you have been deliberating only one day, the Court requests that you continue your deliberations.” (13CT 3664; 36RT 5688-5696.) Finally, the jury apparently was broken into factions and some ofthe jurors 193 may have committed misconduct by exchanging emails among themselves and outside the presence of other jurors. (13CT 3664; 36RT 5697-5698.) As well as raising a substantive issue (see argument XI., post.), the specter of juror misconduct reinforces the fact that protracted deliberations occurred and that the determination of penalty was close anddifficult. Based onthe foregoing, there is a serious question as to whether the verdict reached by the jury was reliable reflection of what it actually believed. There wasdissension within the ranks, with at least one juror having some concern about compassion for appellant, which goes directly to the definition of lingering doubt under section 190.3, subdivision (k). Whatever the jurors thought, it is clear that had they been presented with a more balanced viewofthe factors that can rendera confession false and unreliable, whether in whole or in part, it is very likely they would have voted to spare appellant’s life. Accordingly, improper exclusion of evidence about false confessions in general and in this case was not harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S.at p. 24.) Thetrial court’s decision to excludeit requires reversal. 194 VI. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS, A FAIR TRIAL, AND THE RIGHT TO PRESENT A DEFENSE PURSUANT TO THE FEDERAL AND STATE CONSTITUTIONS, WHEN IT REFUSED TO ALLOW THE DEFENSE TO INTRODUCE THIRD PARTY CULPABILITY EVIDENCE ABOUT A NAKED LATE-NIGHT MALE INTRUDER IN THE NEIGHBORHOOD A. Introduction The defense proffered the testimony of a neighbor who knew appellant, Bettie Mercado, that three years earlier a man in his twenties or early thirties had broken into her home in the middle of the night wearing only underwear, that she confronted him in the hallway near her children’s rooms, and that her husband had chased him out of the house and called 911. (34RT 5325-5328) The defense argued that the existence of this intruder, who Mercado clearly saw and said was not appellant, raised an issue of lingering doubt as to whether it really was appellant who broke into Melissa’s bedroom and frightened her in the prior incident that occurred weeks before the homicide. (34RT 5322-5323, 5326, 5334- 5335) The prosecution contended that this evidence was not relevant, because, “It doesn’t have any bearing whatsoever on raising a lingering doubt becauseit is a separate incident, a separate person. Happened 3 or more years prior to the ‘94 incident. [sic]” (34RT 5334; see 5321, 5323.) The defense countered, “Well, of courseit’s not the same person. That’s — that’s the point of us offering it.” (4RT 5334) The trial court sustained the prosecution objection on relevance grounds. (34RT 5334-5335) The court wasin error. 195 B. Standard of Review In assessing the admissibility of third party culpability evidence, the trial court must consider whether the evidence could raise a reasonable doubtas to the defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352. (People v. Bradford (1997) 15 Cal.4th 1229, 1325) Thetrial court's determination of this issue is reviewed for abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372.) “[JJudicial discretion is .... ‘the sound judgmentofthe court, to be exercised according to the rules of law.’ [Citation.] ... [T]he term judicial discretion ‘implies absence of arbitrary determination, capricious disposition or whimsical thinking.’ [Citation.] Moreover, discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68, 72.) Cc. Factual and Procedural Background The defense made an offer of proof that Bettie Mercado, a neighbor who knew appellant, wasthe victim ofa late-night intruder similar to the one described by Melissa to her parents. The defense argued that this evidence wasrelevantto the issue of lingering doubt because “this is a similar act occurring — somewhere within 2 or 3 years of the time in the same neighborhood, similar to what was described by Melissa’ parents as — as what she described to them: Someone who didn’t have their clothes on, who grabbed her in — entered her room and grabbed her. So it’s — that’s the relevance of the prior incident in this case. And it goes to the ‘lingering doubt’ issue.” (34RT 5322-5323) The prosecution objected on relevance grounds, and Mercadotestified outside the presence of the jury that in late 1991, at 2:15 am., she heard her children talking. She got up and encountered a strange man in the hallway wearing only underwear. He was not appellant. The man ran back to her son’s 196 room and grabbedhis clothes. She woke up her husband, who chased him away, and she dialed 911. (34RT 5323, 5325-5327) After Mercado testified, the prosecution argued, “About the intruder, People’s position has already been stated. I just don’t see any connection here. Hasnothing to do with the defendant’s record. It’s a totally separate incident. It doesn’t have any bearing whatsoever on raising a lingering doubt becauseit is a separate incident, a separate person. Happened 3 or more years prior to the 94 incident. [sic]” (34RT 5334) The defense countered, “Well, of course it’s not the same person. That’s — that’s the point of us offering it. It is — it is a similar incident where someone entered someone’s homeat night. Turns out this man was wearing, I guess, his briefs and nothing more. [para.] The evidence the prosecution put on in Daniel’s case is that he was wearing — he wasn’t wearing anything when heentered the home. I think it — to show that there was anotherintruder in the neighborhood — albeit sometime before that — could, I think — can raise — can help to raise a doubt as to whether or not it was Daniel, if — if Melissa, in fact, saw somebodyin the house, whether or not it was her — whether or not that she saw Daniel.” (34RT 5334) The court ruled, “Okay. I’m going to sustain the objection as to that — that — the incident involving the intruder, the 3-year prior. I don’t see the relevance of that whatsoever. I think it’s — first of all, I think it’s irrelevant. And even if it wererelevant — well, that’s sufficient. It is not relevant.” (34RT 5334-5335) D. Governing Law and Application In Holmes v. South Carolina (2006) 547 U.S. 319, the Supreme Court reiterated that while state and federal rule-makers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials, “[t]his latitude...has limits. ‘Whether rooted directly in the Due Process Clause of the Fourteenth Amendmentor in the Compulsory Process or Confrontation Clauses of 197 oe the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.”’ [Citations]” (Holmes, supra, at p. 324.) “This right is abridged,” the Court continued,“by evidence rules Gee that ‘infringe upon a weighty interest of the accused’ and are ‘“arbitrary” or “disproportionate to the purposesthey are designedto serve.” [Citations]” (Jd. at pp. 324-325,citing inter alia Chambers v. Mississippi (1973) 410 U.S. 284, 294, 302; and Rock v. Arkansas (1987) 483 U.S. 44 [97 L.Ed.2d 37, 107 S.Ct. 2704.) In Holmes, the accused challenged a South Carolina evidentiary rule that allowed the defense to present third party culpability evidence only if it “tend[ed] clearly to point out such other person as the guilty party.” (Holmes, supra, at p. 328.) The Court commented, “Underthis rule, the trial judge does not focus on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt. Instead, the critical inquiry concerns the strength of the prosecution's case: If the prosecution's case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues.” (Holmes, supra, 547 U.S.at p. 329.) The Court in Holmes concluded, “The point is that, by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is ‘arbitrary’ in the sense that it does not rationally serve the end that. . . third-party guilt rules were designed to further. Nor has the State identified any other legitimate end that the rule serves.It follows that the rule applied in this case by the State Supreme Court violates a criminal defendant's right to have a meaningful opportunity to present a complete defense.” [Citations]” (Holmes, supra, at p. 331.) 198 In California, the defendant has a right to present evidence of third party culpability. “‘The principles of law are clear.... [T]he standard for admitting evidenceof third party culpability [is] the same as for other exculpatory evidence: the evidence [has] to be relevant under Evidence Code section 350 and its probative value [can]not be ‘substantially outweighed by the risk of undue delay, prejudice, or confusion’ under Evidence Code section 352.’ [Citation] ‘At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability.... [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetrator of the crime.’ [Citations]” (People v. Geier (2007) 41 Cal.4™ 555,581, citing People v. Hall (1986) 41 Cal.3d 826, 833 and People v. Panah (2005) 35 Cal.4™ 395,481; accord, see People v. Page (2008) 44 Cal.4" 1, 38.) In People v. Hall, our Supreme Court held that in evaluating admissibility of third-party culpability evidence, “[t]he court’s proper inquiry was limited to whether this evidence could raise a reasonable doubt as to defendant’s guilt and then applying section 352.” (/d. at p. 833.) The Court explained that this type of evidence should be evaluated “like any other evidence: if relevant it is admissible (§ 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice or confusion (§ 352).” (/d. at p. 834.) The Court added, “We recognize that an inquiry into the admissibility of such evidence and the balancing required under section 352 will always turn on the facts of the case. Yet courts must weigh those facts carefully. . . . Furthermore, courts must focus on the actual degree of risk that the admission of relevant evidence mayresult in undue delay, prejudice and confusion. As Wigmore observed, ‘if the evidence is really of no appreciable value no harm is done in admitting it; but if the evidence is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubtis purely speculative and fantastic but should afford the accused 199 every opportunity to create that doubt.’ (1A Wigmore, Evidence(Tillers rev. ed. 1980) § 139, p. 1724.” (Hall, supra, 41 Cal.3d at p. 834.) Although Hail “refused to impose a distinct and elevated standard of admissibility on defense evidenceofa third party’s guilty of the charged crimes,” it also made clear that “evidence of mere motive or opportunity to commit the crime in another person, without more,is not sufficient to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Hall, supra, at p. 833, cited in People v. Pride (1992) 3 Cal.4" 195, 237.) Subsequent authorities have confirmed that a third-party culpability defense would need to identify a possible perpetrator. (People v. Marshall (1996) 13 Cal.4™ 799, 802.) “[T]o be admissible, evidenceof the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant’s guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352.” (People v. Bradford (1997) 15 Cal.4™ 1229, 1325.) The facts and circumstances surrounding Mercado’s testimony meet all of the standards set forth in Hall. The intruder she described matched Melissa’s description of her intruder almost exactly, right down to the fact that he somehow had broken into the house in the middle of the night, was young, and hadlittle or nothing on. (See Mercado testimony at 34RT 5325-5328.) Recall, Melissa told her parents that someone had been in her room, was on top of her, and was choking her. She described her assailant as male and nude. (17RT 2564-2565, 2574-2476, 2577-2578, 2587-2588) 200 The only factor differentiating the two incidents is that one occurred several years before the other. Given the significance of lingering doubt testimony, especially in light of the similarity between the two incidents, the time discrepancy did not render this very important evidenceirrelevantatall, contrary to the district attorney’s argument. Moreover, the incident described by Mercado has a tendency to reinforce the defense contention that another individual, not appellant, was the intruder in the prior incident described by Melissa. That possibility, in turn, reinforces the likelihood that appellant’s admission to the prior incident was coerced by the authorities and resulted in a false confession. The trial court in this case erred when it precluded the defense from presenting to the jury relevant and compelling evidence which,if believed, not only exculpated appellant but also pointed strongly to the fact that another identified individual was the actual perpetrator of the prior incident. The court deprived appellant of due process whenit prevented the jury from hearing this evidence. (See e.g., Chambers v. Mississippi, supra, 410 U.S. at p. 302; Davis v. Alaska, supra, 415 USS.at p.; 317.) E. Prejudice The trial court’s exclusion of Mercado’s testimony should be evaluated in light of the strong record in the guilt phase that several jurors questioned whether appellant was the perpetrator of the prior assault on Melissa and whether his confession to that prior incident was false. For these reasons andthoseset forth in argument V, ante., exclusion of Mercado’s testimony was not harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S.at p. 24.) 201 VIL. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS, A FAIR TRIAL, AND THE RIGHT TO PRESENT A DEFENSE PURSUANT TO THE FEDERAL AND STATE CONSTITUTIONS, WHEN IT ADMITTED EMOTION- PROVOKING PHOTOGRAPHS AND TESTIMONY AS VICTIM IMPACT EVIDENCE A. Introduction While the prosecution is entitled to put on victim impact evidence,there are limits to emotion-provoking material that can have no effect other than to inflame the jury into a decision that looks more like passion-inducingretribution than a reasoned consideration as to whether a capital defendant’s life should be spared. In this case, the testimony of Melissa’s mother, father and friends was accompanied by a running commentary about a series of photographs depicting her life. Jurors wept. The testimony was gut-wrenching. It should have been toned downandthe court’s refusal to do so on defense request waserror. B. Standard of Review This Court has long held that during the penalty phase of a capital trial, the prosecution may present evidence regarding not only the physical and emotional effects of the capital offense being tried under factor (a) of Penal Code section 190.3, but also the effects of a defendant's violent criminal activity under factor (b) of section 190.3 on victims and survivors of that activity. (See People v. Clark (1990) 50 Cal.3d 583, 628-629; People v. Edwards (1991) 54 Cal.3d 787, 832-837; People v. Mickle (1991) 54 Cal.3d 140, 187; People v. Garceau (1993) 6 Cal4th 140, 201-202, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118; People v. Holloway (2004) 33 Cal.4th 96, 143.) According to this Court, the prohibition against victim impact evidence at the sentencing phase of a capital trial has largely been overruled and thus is not barred 202 by the federal Constitution. (People v. Holloway, supra, 33 Cal.4th at p. 143, fn. 13, citing People v. Garceau, supra, 6 Cal.4th at pp. 201-202.) A trial court's erroneous admission of victim impact evidence is analyzed under the harmless-error standard for federal constitutional error set forth in Chapmanv. California (1967) 386 U.S. 18, 24. (See People v. Clark, supra, 50 Cal.3d at p. 629; Payne v. Tennessee (1991)501 U.S. 808, 824.). C. Factual and Procedural Background 1. Pretrial Motion to Limit Penalty Phase Victim Impact Evidence Prior to trial, the defense filed a Motion to Limit Victim Impact Evidence, pursuant to Penal Code section 190.3, the Eighth Amendmentto the United States Constitution, and Article I, section 17 of the California Constitution. (4CT 917- 942) The motion wasfiled prior to trial because the defense anticipated that the prosecution would be referring to some of the victim impact evidence during voir dire. (See 13RT 1725) The prosecution informed the defense that it intended to present at the penalty phase a videotape containing 53 pictures accompanied by fades to black and music from the death scene in the movie Elephant Man. One set of pictures depicted Melissa as a baby, with Santa Claus, with her father, mother and brother. Another set of pictures showed her grave and a memorial service at her school. The tape included interviews with Melissa’s mother and four friends from school. (4CT 918-919; see 13RT 1728, during which prosecution played videotape designated as People’s Exh. 1 in the penalty phase) The defense argued that the proposed videotape waslikely to overwhelm the jury’s emotions and ability to follow the law at the penalty phase regarding whether to sentence appellant to death or life without the possibility of parole. (13RT 1725) The defense was particularly concerned about the emotional impact likely to be evoked by the music (13RT 1730); the graveside and memorial tribute (13RT 1731); and the dozens of pictures of Melissa as a baby. (13RT 1743, 1748, 203 1750-1751) The defense also pointed out that the case law still prohibited an overbroad admission of victim impact evidence. (13RT 1729) The prosecution argued that existing case law gave it wide latitude in terms of introducing the videotape. (7CT 1863-1869; 13RT 1737) The prosecutor commented, “The evidence that the people seek to present [is] merely what Payne [v. Tennessee (1991) 501 U.S. 808] and the California... Supreme Court have told us we can put on: a brief glimpse ofthe life that the defendant chose to extinguish and the impacton the family, the friends, and the community. And weare entitled to do that through photographs, and weare entitled to do that through testimony. There is no other way you can present that.” (13RT 1739) Later, the prosecution offered to show the photographs without the music or with different music. (13RT 1753, 1754) The trial court denied the motion and said it would allow the videotape including the music. (13RT 1757-1758) The court overruled defense objection to testimony that Melissa raised pigeons or was kind to animals and said it would craft a cautionary instruction for the penalty phase, similar to 1.00 used in the guilt phase, that jurors should not be influenced by mere sentiment, conjecture, and the like. (13RT 1757-1761) The court denied a defense request to play People's Ex. 1 during voir dire and inquire if veniremenwill still be able to follow the law after seeing Ex. 1, but allowed counsel to ask if veniremen feel they will be able to be fair after viewing a tape with photos of Melissa from a babyto her age at death. The court also said it would allow the defense to show some photos of Melissa during voir dire to see if that will prejudice potential jurors. (13RT 1761-1767) 2. Penalty Phase Victim Impact Evidence Prior to the penalty phase, the prosecution decided to pare down some of the victim impact evidence it chose to present. The defense commented, “We filed our trial motions to limit victim impact evidence based ... on the video and the music, which apparently the prosecutor doesn’t intend[to] play.” (32RT 4999) 204 Nonetheless, the prosecution still introduced 13 photographs of Melissa, over defense objection. (See 13CT 3665; 32RT 4969-4994; 35RT 5510-5514; Peo. Exhs. 1-27) The prosecution commented, “And I would indicate to the Court that all of these photographs that were marked and were used were part of the 53 that were originally on the video that the Court had allowed meto use in evidence, had I chosen to. And I decided not to and to use photographs and the testimony instead, complimenting the photographs. And I’m now further pairing [sic] it down to approximately 13 photographs. And had the video been in evidence, the jury could have re-watched that, had they wanted to, and seen all 53 photographs with stop-action capabilities.” (35RT 5511-5512) Those photographs depicted Melissa as follows: Exhibit 2: Melissa held by her father, as an infant. (32RT 4972) Exhibit 5: Melissa at age three, asleep. (32RT 4973) Exhibit 6: Melissa at age two or three, on her tricycle. (32RT 4973) Exhibit 8: Melissa at a scouting event, wearing a uniform, age ten or eleven. (32RT 4974) Exhibit 10: Melissa at a Christmas parade, in Hemet, unspecified age. (32RT 4975) Exhibit 14: Melissa with her grandparents at Sea World, unspecified age. (32RT 4977) Exhibit 17: Melissa dressed up for a dancerecital, unspecified age. (32RT 4995) Exhibit 18: Melissa on her horse and in Canada, in the summerof 1994 [age 12]. (32RT 4978-4979) Exhibit 20: Melissa at “sock hop” Girl Scout event, shortly before she died [age 12]. (32RT 4995) Exhibit 21: Melissa with her clarinet, unspecified age. (32RT 4987) Exhibit 26: Plaque for Melissa, underneath schoolflag pole. (32RT 5004) 205 Exhibit 27: Melissa at the wheel of a cruise ship, approximately age eight. (32RT 4994; and see 35RT 5513-5514) The photographs were referred to during the penalty phase testimony of Melissa’s mother, father, and friend Jessica Holmes. (See 32RT 4968-5015) In addition to the photos actually entered into evidence, these prosecution witnesses were looking at several other photographs during their testimony. (See 32RT 4968-4971 [Peo. Exh. 1-16, 18], 4991-4998 [Peo. Exh. 17, 19, 20, 22 and 23]) The defense interposed a continuing objection to all of the photographic evidence. (32RT 4991, 4998-5001; 35RT 5513-5514) At the close of the prosecution penalty phase case, the defense made a motionto strike the testimony of Melissa’s parents [Mr. and Mrs. Middleton], and her friends Holmes and Bryan, as exceeding the bounds of the permissible scope of victim impact testimony under Payne v. Tennessee, supra, and People v. Edwards (1991) 54 Cal.3d 787. The court denied the motion. (32RT 5013-5015) The defense later interposed an objection that the photographs and testimony had been so emotion provoking that several jurors and the court reporter were crying. (35RT 5510-5516) D. Governing Law and Application In Payne v. Tennessee (1991) 501 U.S. 808, the United States Supreme Court upheld admission of evidence describing the impact ofa state defendant's capital crimes on a three-year-old boy who was present and seriously wounded when his mother andsister were killed. The court held the Eighth Amendmentdid not preclude admission of, and argument on, such evidence (id. at p. 827), thereby overruling the blanket ban on victim impact evidence and argument imposedbyits earlier decisions in Booth v. Maryland (1987) 482 U.S. 49, and South Carolinav. Gathers (1989) 490 U.S. 805. The court did not hold that victim impact evidence must, or even should, be admitted in a capital case, but instead merely held thatif a state decides to permit consideration of this evidence, "the Eighth Amendment erects no perse bar." (Payne v. Tennessee (1991) 501 U.S.at p. 827; see also id. at 206 p. 831 (conc. opn. of O'Conner, J.).) The court was careful to note that the Due Process Clause of the Fourteenth Amendment would be violated by the introduction of victim impact evidence "that is so unduly prejudicial that it renders the trial fundamentally unfair... ." (Payne v. Tennessee (1991) 501 U.S.at p. 825; see also id. at pp. 836-837 (conc. opn. of Souter, J.).) Payne recognized that while the federal Constitution does not impose a blanket ban on victim impact evidence, such evidence mayviolate the Fifth, Sixth, Eighth and Fourteenth Amendments where it is so inflammatory as to invite an irrational, arbitrary, or purely subjective response from the jury. [SlPayne v. Tennessee (1991) 501 U.S.at pp. 824-825; Edwards, supra, 54 Cal.3d at 836.) The admissibility of victim impact evidence therefore must be determined on a case- by-case basis. As Justice Souter explained in his concurring opinion in Payne: Evidence about the victim and survivors, and any jury argument predicated on it, can of course be so inflammatoryas to risk a verdict impermissibly based on passion, not deliberation. Cf. Penry v. Lynaugh [(1989)] 492 U.S. 302, 319-328 [] (capital sentence should be imposed as a "reasoned moral response") (quoting California v. Brown [(1987)] 479 U.S. 538, 545 [](O'Connor, J., concurring)); Gholson v. Estelle fo Cir. 1982)] 675 F.2d 734, 738 ("If a personis to be executed, it should be as a result of a decision based on reason and reliable evidence"). . . . With the command of due process before us, this Court and the other courts of the state and federal systems will perform the "duty to search for constitutional error with painstaking care," an obligation "never more exacting than it is in a capital case." (Payne v. Tennessee (1991) 501 U.S. at pp. 836-837 (conc. opn. of Souter, J.), citing Burger v. Kemp (1987) 483 U.S. 776, 785.) While this Court has tolerated a wide range of victim impact evidence,it also has recognized its limits. In a series of cases, for instance, the Court has upheld admission of videotapes portraying victims’ lives. (See People v. Prince (2007) 40 Cal.4™" 1179, 1287-1291 [25-minute video interview with the victim, taped a few monthsbefore her death]; People v. Kelly (2008) 42 Cal.4" 763, 793- 207 799 [videotape of 19-year-old victim’s life prepared and narrated by her mother]); People v. Zamudio (2008) 3 Cal.4™ 327, 363-370 [14-minute video montage of victims as adults, narrated by their children and grandchildren].) It also has upheld admission of photographs andletters written by the victim. (See Peoplev. Valencia (2008) 43 Cal.4" 268, 300 [photograph of 22-year-old victim, accompanied by testimonyofhis father, who lived in poverty in Oaxaca, Mexico and was supported by him and whoread his final letter to the jury]; People v. Edwards (1991) 54 Cal.3d 787, 832-835 [photographs of the victim while she was alive].) The fact that victim impact evidence is admissible does not, however, mean that admission of such evidence has no limits. The Kelly and Zamudio cases eventually made their way to the United States Supreme Court, which on November 10, 2008 denied certiorari. Two justices, however, expressed grave concerns as to whether victim impact evidence should be admitted at all because of its impingement of due process, and a third justice, Souter, joined in their concern as to one of the cases. (Kelly v. California (2008) 555 U.S. ___ [J. Stevens, and J. Breyer, dissenting from denial ofcertiorari]) Justice Stevens commented, “As these cases demonstrate, when victim impact evidenceis enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming. While the video tributes at issue in these cases contained moving portrayals of the lives of the victims, their primary, if not sole, effect was to rouse jurors’ sympathy for the victims and increase jurors’ antipathy for the capital defendants. The videos added nothing relevant to the 208 jury’s deliberations and invited a verdict based on sentiment, rather than reasoned judgment. “T remain convinced that the views expressed in my dissent in Payne are sound, and that the per se rule announced in Booth is both wiser and more faithful to the rule of law than the untethered jurisprudence that has emerged overthe past two decades. Yet even underthe rule announcedin Payne, the prosecution’s ability to admit such powerful and prejudicial evidence is not boundless. “These videos are a far cry from the written victim impact evidence at issue in Booth and the brief oral testimony condoned in Payne. In their form, length, and scope, they vastly exceed the ‘quick glimpse’ the Court’s majority contemplated whenit overruled Booth in 1991. At the very least, the petitions now before us invite the Court to apply the standard announced in Payne, and to provide the lower courts with long-overdue guidance on the scope of admissible victim impact evidence. Having decided to tolerate the introduction of evidence that puts a heavy thumbon the prosecutor’s side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use.” (Kelly v. California (2008) 555 U.S. ___ [J. Stevens, dissenting from denial of certiorari]) Justice Breyer added, ‘“[T]he film’s personal, emotional, and artistic attributes themselves create the legal problem. They renderthe film’s purely emotional impact strong, perhaps unusually so... It is this minimal 209 probity coupled with the video’s purely emotional impact that may call due process protections into play. “This Court has madeclear that ‘any decision to impose the death sentence’ must ‘be, and appear to be, based on reason rather than caprice or emotion.’Gardner v. Florida, 430 U. S. 349, 358 (1977) (plurality opinion). A reviewofthe film itself, ... makes clear that the due process problem of disproportionately powerful emotion is a serious one. Cf. United States v. Johnson, 362 F. Supp. 2d 1043, 1107 (N D Iowa 2005) (describing ‘juror’s sobbing’ that ‘still rings’ in judge’s ‘ears’). I understand the difficulty of drawing a line between whatis, and is not, constitutionally admissible in this area. But examples can help elucidate constitutional guidelines. And in my view, the Court should grant certiorari and consider these cases in an effort to do so.” (Kelly v. California (2008) 555 U.S. __ [J. Stevens, dissenting from denial of certiorari]) Even though the United States Supreme Court has not yet provideda litmus test for what is and is not constitutionally admissible as victim impact evidence,as Justices Breyer and Stevens advocate, it is clear that some cases have attempted to draw limits. In Prince, supra, this Court recognized, “Case law pertaining to the admissibility of videotape recordings of victim interviews in capital sentencing hearings provides us with no bright-line rules by which to determine when such evidence may or maynot be used. We consider pertinent cases in light of a general understanding that the prosecution may present evidence for the purpose of ‘““reminding the sentencer ... [that] the victim is an individual whose death represents a unique loss to society” [Citation]’ but that the prosecution may not introduce irrelevant or inflammatory material that ‘“diverts the jury's attention from its proper role or invites an irrational, purely subjective response.” 210 [Citation]’” (Prince, supra, at p. 1288, citing Payne v. Tennessee, supra, 501 U.S. at p. 825, and People v. Edwards, supra, 54 Cal.3d at p. 836.) The Court in Prince noted that, “Courts must exercise great caution in permitting the prosecution to present victim-impact evidence in the form of a lengthy videotaped or filmed tribute to the victim. Particularly if the presentation lasts beyond a few moments, or emphasizes the childhood of an adult victim,or is accompanied by stirring music, the medium itself may assist in creating an emotional impact upon the jury that goes beyond whatthe jury might experience by viewing still photographs of the victim or listening to the victim's bereaved parents. The trial court in the present case clearly understood the power of this type of evidence, commenting early in the proceedings that ‘I have a great deal of concern about the medium of a videotape creating a situation of grave prejudice,’ and that ‘there is a qualitative difference between a videotape and still photograph from an emotional standpoint.’ In order to combat this strong possibility, courts muststrictly analyze evidence ofthis type and, if such evidence is admitted, courts must monitor the jurors’ reactions to ensure that the proceedings do not become injected with a legally impermissible level of emotion.” (Prince, supra, at p. 1289, cited with approval in Kelly, supra, at pp. 794-798 and Zamudio, supra, at p. 367) People v. Edwards, supra, 54 Cal.3d 787, 832-835 upheld the admission of photographs of the victim while she was alive, and the prosecutor's argument referring to the impact of the crime on her family. In so doing, the Court held that "factor (a) of section 190.3 allows evidence and argument on the specific harm caused by the defendant, including the impact on the family of the victim," but "only encompasses evidence that logically shows the harm caused by the defendant." (People v. Edwards, supra, 54 Cal.3d at p. 835.) The Court was careful to note that it was not holding that factor (a) includes all forms of victim 211 impact evidence and argument. (/bid.) Rather, there are "limits on emotional evidence and argument . . . [and] the trial court must strike a careful balance between the probative and the prejudicial. . . . [I]rrelevant information or inflammatory rhetoric that diverts the jury's attention from its properrole orinvites an irrational, purely subjective response should be curtailed." (/d.at p. 836.) The striking feature of the victim impact evidence that Payne deemed appropriate, and not so inflammatory asto risk a verdict based on passion,is the extremely limited nature of this evidence. In Payne, the grandmotherof the three- year-old surviving victim testified in response to a single question (Payne v. Tennessee (1991) 501 U.S.at p. 826: “He cries for his mom. He doesn't seem to understand why she doesn't come home. Andhe cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I'm worried about my Lacie.” (/d. at pp. 814-815) The victim impact evidence introduced in appellant's case was so voluminous, inflammatory and unduly prejudicial as to "divert the jury's attention from its proper role [and] invite[] an irrational, purely subjective response[.]" (People v. Edwards, supra, 54 Cal.3d at p. 836.) The jury was so movedby the testimony of Melissa’s parents, accompanied with reminiscences of events depicted by the photographs, that four jurors were either actively weeping or wiping their eyes during Mr. Middleton’s testimony. (See 32RT 4998-5001 and Justice Stevens’ concern about photographs depicting the victim’s life, at Kelly v. California, supra, 555 U.S. at___) Later, the defense argued against admission of all of the photographs, noting, “Several members of the jury were crying. I think the court reporter was crying, the one we have here now. Wehave — so these — these pictures will evoke emotion and drying. [para.] Now, they’re supposed to makea rational, reasoned decision as to what happens to Daniel Linton. Is the 212 Court now going to allow Mr. Mitchell to put in that stimulus so that they can begin crying again during their deliberations and make — and try to make this reasoned, rational decision with the pictures being used to evoke the emotional response again? [para.] There’s way too many of them to justify this kind of — their receipt into evidence.” (35RT 5510-5511) See People v. Raley (1992) 2 Cal.4th 870, 916 [in deciding whether victim impact evidence violates the federal Constitution, this Court examines victim impact evidence to determine if it "led the jury to be overcome by emotion."].) The emotional and inflammatory nature of the victim impact testimony and argumentin this case, and sheer quantity of this evidence, was so out of proportion to the evidence introduced in other cases as to shift the focus of the jury from "a reasoned moral response"to appellant's personal culpability and the circumstances of his crime (Penry v. Lynaugh, supra, 492 U.S. 302, 319) to a passionate, irrational, and purely subjective response to the sorrow of Melissa Middleton’s family. (See Cargle v. State (Ok.Cr.App. 1995) 909 P.2d 806, 830 ["The more a jury is exposed to the emotional aspects of a victim's death, the less likely their verdict will be a 'reasoned moral response’ to the question whether a defendant deserves to die; and the greater the risk a defendant will be deprived of Due Process."].) The emotionally charged and detailed testimony introduced in this case was precisely the type of evidence that Payne and progeny recognized as unduly prejudicial and likely to provoke irrational, capricious, or purely subjective responses from the jury. (Payne v. Tennessee, supra, 501 U.S. at p. 825; People v. Edwards, supra, 54 Cal.3d at p. 836.) Introduction of this testimony violated appellant's rights to due process and a fair trial under the Fifth and Fourteenth Amendments, and contravened the need for rationality and reliability in the application of the death penalty mandated by the Eighth Amendment. 213 E. Prejudice The trial court’s decision to admit the photographs of Melissa, accompanied by the commentary of her parents and friends, went far beyond the purpose ofvictim impact evidence, having no effect than provoking jury emotion and subjective response. If one or more jurors had any lingering doubt about whether appellant confessed truthfully about wanting to sexually assault Melissa, that doubt was unfairly neutralized by the photographic evidence depicting herlife and the abject sorrow ofthosetestifying about her. (See again dissents to denial of certiorari in Kelly v. California, supra, 555 U.S. ___) Introduction of this testimony violated appellant's rights to due process and fair trial under the Fifth and Fourteenth Amendments, and contravened the need for reliability in the application of the death penalty mandated by the Eighth Amendment. As previously noted and argued in this brief, the penalty phase case was extremely close. The jury deliberations were lengthy and there was substantial mitigation evidence presented. Victim-impact evidence is especially emotional and evocative, and the erroneous admission of such testimony in a close case cannot be deemed harmless. Accordingly, admission of the victim impact evidence in this case was not harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. at p. 24.) 214 VUL. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS, A FAIR TRIAL, AND A RELIABLE PENALTY DETERMINATION, WHEN IT INSTRUCTED THE JURY ABOUT MITIGATING FACTORS UNSUPPORTED BY THE EVIDENCE IN CALJIC NO.8.85 A. Introduction The trial court instructed the jury under CAI.JIC No. 8.85 as to all aggravating and mitigating factors listed in Penal Code section 190.3, subdivisions (a) through (k). The defense challenged use of six of these mitigating factors that were not supported by the evidence in appellant's case: Factor (d): Whether or not the offense was committed while the defendant was underthe influence of extreme mental or emotional disturbance; Factor (e): Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidalact; Factor (f): Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct; Factor (g): Whether or not the defendant acted under extreme duress or under the substantial domination of another person; (h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication; and (j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor. The court’s failure to excise these factors as requested waserror. 215 B. Factual and Procedural Background The defense objected to standard CALJIC No.8.85 regarding factors the jury is instructed to consider when deliberating penalty. That instruction was as follows: CALJIC No. 8.85: Penalty Trial—Factors for Consideration In determining which penalty is to be imposed ... you shall considerall of the evidence which has been received during any part of the trial of this case. You shall consider, take into account and be guided by the following factors, if you determine them to be applicable: (a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstance foundto betrue. (b) The presence or absenceof criminalactivity by the defendant, other than the crime[s] for which the defendant has beentried in the present proceedings, which involved the use or attempted use of force or violence or the express or implied threat to use force or violence. (c) The presence or absenceofany prior felony conviction, other than the crimes for which the defendant has been tried in the present proceedings. (d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. (e) Whether ornotthe victim wasa participant in the defendant's homicidal conduct or consented to the homicidalact. 216 (f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moraljustification or extenuation for his conduct. (g) Whether or not the defendant acted under extreme duress or underthe substantial domination of another person. (h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication. (i) The age of the defendantat the time of the crime. (j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor. (k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of the defendant's character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which he is on trial. You must disregard any jury instruction given to you in the guilt or innocence phaseofthis trial which conflicts with this principle. (13CT 3656-3657) The defense argued that factors (d), (e), (f), (g), (h), and (j) should be deleted from the standard No. 8.85 instruction because these factors were irrelevant and posed risk of cluttering the jury’s penalty determination by preventing them from focusing on appellant’s background alone andthe particular circumstances of the case. (13RT 3621-3622) After argument, the court decided to leave all of the factors in, although it acknowledged it was permitted to take them out. (32RT 5023-5027,citing People v. Marshall (1990) 50 Cal.3d 907) 217 The defense also argued that in No. 8.85, subdivision (d), the use of “extreme” to describe mental or emotional disturbance was error, because it precluded the jury from specifically considering as mitigation a mental or emotional disturbance which maybeless than extreme. (13CT 3632-3633) The defense wasparticularly concernedthat the jury would interpret this instruction to meanthat the disturbance has to be extreme. (32RT 5041) The court denied the defense request and gavethe instruction as written. (32RT 5041) C. Governing Law and Application A jury should not be instructed on principles of law that are not supported by the evidence presentedattrial. (See, e.g., People v. Williams (1992) 4 Cal.4th 354, 361 (defendant not entitled to consent instruction absent evidence); People v. Hannon (1977) 19 Cal.3d 588, 597.) An exception to this general rule hasarisen in capital cases, where the jury is routinely instructed on mitigating factors that have nothing to do with the case. This Court has upheld this practice. (People v. Ghent (1987) 43 Cal.3d 739, 776-777.) The Court held there was no danger the jury would draw a negative inference from the fact that manyofthe listed mitigating factors did not apply because the jury is instructed that the absence of a mitigating factor cannot be considered to be an aggravating factor. (Ibid.) Although it is presumed that jurors understand and follow jury instructions, there are practical limits to this maxim. "The naive assumption that prejudicial effects can be overcomebyinstructions to the jury ... all practicing lawyers know to be unmitigated fiction." (Krulewitch v. United States (1949) 336 U.S. 440, 453) The problem is not cured by the admonition that the absence of mitigation is not aggravation. First, the admonition (whichreads like a proverb) is too vague to be widely understood. Second, even if each juror understood it in the proper sense, the jury still hears the list of mitigating factors that do not apply and is left with the inescapable sense that the appellant has failed to satisfy many (or most) of the 218 legal requirements for a sentence of life without parole. The inclusion of these inapplicable factors in the list of aggravating and mitigating factors violates the defendant's federal constitutional right to due process and to a reliable and fair sentencing process. (See also People v. Aranda (1965) 63 Cal.2d 518, 528.) Instructing the jury on inapplicable mitigating factors is error because those extraneous instructions inject irrelevant information into the jury's deliberations. Only relevant factors may be considered in making the capital sentencing decision; and the state is only permitted to use in aggravation those statutory factors that have been designated aggravating. (People v. Boyd, supra, 38 Cal.3d 762.) This danger is heightened because the instructions do not explicitly designate which factors are mitigating and which are aggravating, permitting jurors improperly to assign aggravating weight to a factor that can only be considered as mitigation, or to conclude that the crime is particularly aggravated because proof of some factor in mitigation has not been proved. (See People v. Davenport (1985) 41 Ca1.3d 247,289-290.) Finally, the failure to delete unsupported factors leaves the jury to decide which factors were relevant and applicable to appellant's case, thus creating the possibility that the jury rejected relevant mitigating evidence because it thought that it was somehow inapplicable to appellant's case. Such a risk violates his rights under the Eighth Amendment. (Boyde v. California (1990) 494 U.S. 370, 380 [instructions which create the reasonable likelihood that the jury was prevented from giving mitigating effect to relevant evidence violate the Eighth Amendment].) Empirical research undercuts the argument that deleting inapplicable factors is unnecessary because jurors fully understand the penalty phase instructions and follow them expertly. This research demonstrates critical misunderstanding by large numbers of jurors as to basic constitutional concepts underlying capital sentencing. (See Haney & Lynch, “Comprehending Life and Death Matters: A Preliminary Study Of California's Capital Penalty Instructions” (1994) 18 Law & Human Behavior 411,423-424, 428-429.) Another study of 219 California jurors who hadactually served in capital cases found that many ofthe jurors who were interviewed simply dismissed mitigating evidence that had been presented during the penalty phase because they did notbelieve it fit in with the sentencing formula that they had been given by the judge, or because they did not understand that it was supposed to be considered mitigating. (Haney, et al., ‘Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death” (1994) 50 (no. 2) J. ofSocial Issues 149, 167-168.) In summary, the failure to delete inapplicable factors deprived appellant of his rights to an individualized sentencing determination based on permissible factors relating to him andthecrime.In addition,this error, byartificially inflating the factors on death's side of the scale, violated the Fifth, Sixth, Eighth and Fourteenth Amendments’ requirement of heightened reliability in the death determination. (Ford v. Wainwright (1986) 477 U.S. 399, 411, 414; Beck v. Alabama (1980) 447 U.S. 625,637.) Appellant recognizes that this Court previously has rejected challenges to CALJIC No. 8.85’s recitation of all factors. In People v. Lindberg (2008) 45 Cal.4" 1, the Court commented, “Defendant contends that CALJIC No. 8.85 [fn. omitted] describes the aggravating and mitigating factors the jury may consider in determining penalty, is constitutionally flawed because (1) the instruction fails to inform the jury which factors are mitigating and which factors are aggravating, and (2) the use of the modifiers “extreme” and “substantial” in the instruction acts as a barrier to the jury's consideration of mitigation. [fn. omitted] We previously have rejected these challenges. [Citations] Defendant offers no persuasive reason to reconsiderourprior decisions.” (Lindberg, supra, at pp. 50-51, citing People v. Ramirez (2006) 39 Cal.4" 398, 469 [‘‘instructions in the language of CALJIC No. 8.85 do not violate the Eighth and Fourteenth Amendments by failing to delete inapplicable sentencing factors or delineate between aggravating and mitigating circumstances”); People v. Perry (2006) 38 Cal.4th 302, 319 [the terms “extreme” and “substantial” do not unconstitutionally limit the mitigating factors the jury 220 may consider]; see also People v. San Nicolas (2004) 34 Cal.4th 614, 675-676, CALJIC No. 8.85 does not preclude jurors from considering lesser mental or emotional disturbance as a mitigating factor in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments].) However, for the foregoing reasons it should reconsider its position, particularly in light of the facts of this particular case, as discussed below. D. Prejudice Appellant maintains that the error in this section was a violation of appellant’s federal constitutional rights. However, even state law error occurring during the penalty phase will be considered prejudicial when there is a reasonable possibility such an error affected a verdict. (People v. Jackson (1996) 13 Cal.4th 1164, 1232; People v. Brown (1988) 46 Cal.3d 432, 447.) The state reasonable possibility standard is the same, in substance and effect, as the harmless beyond-a- reasonable-doubt standard of Chapman v. California, supra, 386 U.S. 18, 24. (People v. Ochoa (1998) 19 Cal.4th 353, 479.) Thus, the standard of prejudice is the same whether the error is one of state law only, or one of federal scope dimension. (See Boyde v. California (1990) 494 U.S. 370, 380 [instructions which create the reasonable likelihood that the jury was prevented from giving mitigating effect to relevant evidence violate the Eighth Amendment].) It is reasonably likely that the instruction confused and misled the jury. The listing of a number of mitigating requirements that the appellant did not meet could have no effect other than to lead a juror to conclude that appellant's case for mitigation does not measure up to the standardsfor life in prison set by law. Two of the factors in CALJIC No. 8.85 are particularly problematic in appellant’s case. Factor (d) instructs the jury, once again, to consider: “Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. Factor (h) instructs the jury to evaluate, “(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the 221 criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication.” Taken together these instructions easily could have beeninterpreted by the jury as a mandate not to consider appellant’s mental impairment if (1) it was not “extreme” under (d) and therefore (2) what mental disease he did have, if any, under (h) that led him to strangle Melissa, was not mitigating if it was not extreme. Inclusion of these factors readily could have further impinged the fairness of the deliberative process because appellant’s mental state was the only issue in this case and wascritical for the jury to evaluate whetheror not he provided a false confession, as set forth in arguments above. Based on the closenessofthe case, as evidenced bythe length of deliberations and the number of questions posed by the jury that went directly to appellant’s state of mind,it is reasonably likely that this error affected the death verdict. Reversal is required. 222 IX. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS, A FAIR TRIAL, AND A RELIABLE PENALTY DETERMINATION, WHEN IT INSTRUCTED THE JURY ABOUT THE PROCESS OF WEIGHING FACTORS UNDER MODIFIED CALJIC NO.8.88 A, Introduction CALJIC 8.88, as written and as modified in this case, violated appellant's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal constitution and the corresponding sections of the state constitution. The instruction was vague and imprecise, failed accurately to describe the weighing process the jury must apply in capital cases, and deprived appellant of the individualized consideration the Eighth Amendment requires. The instruction also was improperly weighted toward death and contradicted the requirements of Penal Code Section 190.3 by indicating that a death judgment could be returned if the aggravating circumstances were merely "substantial" in comparison to mitigating circumstances, thus permitting the jury to impose death even if it found mitigating circumstances outweighed aggravating circumstances Reversal of the death sentence is required. Appellant recognizes that similar arguments have been rejected by this Court in the past. (See, e g, People v. Lindberg, supra, 45 Cal.4™ at pp. 51-52; and People v. Duncan (1991) 53 Cal 3d 955, 978.) However, appellant respectfully submits that these cases were incorrectly decided for the reasonsset forth herein and should be reconsidered B. Factual and Procedural Background Overdefense objection, the trial court instructed the jury with CALJIC No. 8.88 as follows: 223 “CALJIC 8.88 Penalty Trial—Concluding Instruction It is now your duty to determine which of the two penalties, death or imprisonmentin the state prison for life without possibility of parole, shall be imposed on the 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. An aggravating factor is any fact, condition or event attending the commission of a crime which increases its severity or enormity, or adds to its injurious consequences which is above and beyond the elements of the crime itself. A mitigating circumstance is any fact, condition or event which does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, 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. There is no need for you as jurors to unanimously agree to the presence of a mitigating or aggravating factor before considering it. In weighing the various circumstances you determine underthe relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. To return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the 224 mitigating circumstances that it warrants death instead of life without parole. You shall nowretire 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.” (13CT 3659-3660) The defense requested the court add the following language to the second paragraph of CALJIC No.8.88: “The permissible aggravating factors are limited to those aggravating factors upon which you have been specifically instructed. Therefore, the evidence which has been presented regarding the defendant’s background may only be considered by you as mitigating evidence.” (13CT 3641) The defense also requested the court instruct the jury that jurors do not need to find mitigation to impose life without possibility of parole. (32RT 5055) The court denied this request as well. After argument, the court denied these modifications, relying on People v. Roybal(1998) 19 Cal.4™ 481, 525. (32RT 5054-5057) 225 C. Governing Law and Application 1. CALJIC No.8.88 Failed to Inform the Jurors ThatIf They Determined That Mitigation Outweighed Aggravation, They Were Required to Impose a Sentence of Life With out Possibility of Parole California Penal Code Section 190 3 directs that, after considering aggravating and mitigating factors, the jury "shall impose" a sentence of confinement in state prison for a term of life without the possibility of parole if "the mitigating circumstances outweigh the aggravating, circumstances." (Pen. Code, § 190.3” The United States Supreme Court has held that this mandatory language is consistent with the individualized consideration of the defendant's circumstances required under the Eighth Amendment. (Boyde v. California, supra, 494 U S at 377) This mandatory language, however, is not included in CALJIC No.8.88 Instead, the instruction informs the jury merely that the death penalty may be imposed if aggravating circumstances are "so substantial" in comparison to mitigating circumstancesthat the death penalty is warranted. While the phrase "so substantial" plainly implies some degree of significance, it does not properly convey the "greater than" test mandated by Penal Code Section 190.3. The instruction by its terms would plainly permit the imposition of a death penalty whenever aggravating circumstances were merely "of substance" or "considerable," even if they were outweighed by mitigating circumstances. Put another way, reasonable jurors might not understand that if the mitigating circumstances outweighed the aggravating circumstances, they were required to return a verdict of life without possibility of parole. By failing to conform to the Thestatute also states that if aggravating circumstances outweigh mitigating circumstances, the jury "shall impose" a sentence of death. However, this Court has held that this formulation ofthe instruction improperly misinformedthe jury regardingits role and disallowed it. (People v Brown (1985) 40 Cal 3d 512, 544, n 17) 226 specific mandate of Penal Code Section 190.3, the instruction violates the Fourteenth Amendment. (Hicks v Oklahoma (1980) 447 U S. 343, 346-347) In addition, the instruction improperly reduced the prosecution's burden of proof below that required by the applicable statute. An instructional error which mis-describes the burden of proof, and thus "Vvitiates all the jury's findings," can never be shownto be harmless. (Sullivan v Louisiana (1993) 508 U.S. 275, 281 (Emphasis in original).) This Court has found the formulation set forth in CALJIC No 8.88 permissible because "[t]he instruction clearly stated that the death penalty could be imposed only if the jury found that the aggravating circumstances outweighed mitigating.” (People v. Duncan (1991) 53 Cal 3d 955, 978.) The Court reasoned that since the instruction stated that a death verdict requires that aggravation outweigh mitigation, it was unnecessary to instruct the jury of the converse. The opinion cites no authority for this proposition, and appellant respectfully urges that the case is in conflict with numerous opinions that have disapprovedinstructions emphasizing the prosecution theory of a case while minimizing or ignoring that of the defense. (See, e g, People v. Moore (1954), 43 Cal.2d 517, 526-29, People v Costello (1943) 21 Cal.2d 760; People v Santana (2000) 80 Cal App 4th 1194, 1208-09.) In People v. Moore, supra, 43 Cal 2d 517, this Court stated the following about a set of one-sided instructions on self-defense: "It is true that the instructions do not incorrectly state the law, but they stated the rule negatively and from the viewpoint solely of the prosecution. To the legal mind they would imply [their corollary], but that principle should not have been left to implication. The difference between a negative and a positive statement of a rule of law favorable to one or the other of the parties is a real one, as every practicing lawyer knows. There should be absolute impartiality as between the People and the defendantin the matter of instructions, including the phraseology employedin the statement of 227 familiar principles.” (Id. at pp. 526-27 [internal quotation marks omitted, emphasis added].) In other words, contrary to the apparent assumption in Duncan, the law does notrely on jurors to infer one rule from the statement ofits opposite. Nor is a pro-prosecution instruction saved bythe fact that it does notitself misstate the law Even assuming it were a correct statement of law, the instruction at issue here stated only the conditions under which a death verdict could be returned, and contained no statement of the conditions under which a verdict of life was required. .Mooreis thus squarely on point. In addition, the slighting of a defense theory in the instructions has been held to deny not only due process but also the right to a jury trial, becauseit effectively directs a verdict as to certain issues in the defendant's case. (Zemana v Solem (D.S.D. 1977), 438 F.Supp 455, 469-470, aff'd and adopted, 573 F 2d 1027, 1028 (8th Cir 1978), see Cool v United States (1972) 409 U.S 100 [disapproving instruction placing unauthorized burden on defense].) Thus the defective instruction violated appellant's Sixth Amendment rights as well. Under the standard of Chapmanv California, 386 U S at 24, reversal is required 2. CALJIC No. 8.88 Failed to Inform the Jurors That They HadDiscretion to Impose Life WithoutPossibility of Parole Even in the Absence of Mitigating Evidence Recall, the court also denied the defense request to instruct that jurors do not need to find mitigation to impose life without possibility of parole. (32RT 5055) The court denied this request. (32RT 5057) The court wasin error. "The weighing process is ‘merely a metaphor forthe juror's personal determination that death is the appropriate penalty under all the circumstances "' (People v Jackson (1996) 13 Cal.4th 1164, 1243-44 [citations omitted].) Thus, this Court has held that the 1978 death penalty statute permits the jury in a capital case to return a 228 verdict of life without possibility of parole even in the complete absence of any mitigating evidence. (People v Duncan, supra, 53 Cal.3d at 979, People v Brown (1985) 40 Cal 3d 512, 538-541, reversed on unrelated grounds in California v Brown (1987) 479 U.S. 538 [jury may return a verdict of life without possibility of parole even if the circumstances in aggravation outweighthose in mitigation].) The jurors in this case, however, were never informed ofthis critical fact. To the contrary, the language of CALIJIC No 8.88 implicitly instructed the jurors that if they found the aggravating evidence "so substantial in comparison with the mitigating circumstances," death was the permissible and proper verdict. Thatis, if aggravation was found to outweigh mitigation, a death sentence was compelled. Since the jurors were never instructed that it was unnecessary for them to find mitigation in order to imposea life sentence instead of death sentence, they were likely unaware that they had the discretion to impose a sentence oflife without possibility of parole even if they concluded that the circumstances in aggravation outweighed those in mitigation - and even if they found no mitigation whatever. As framed, then, the CALJIC No 8.88 had the effect of improperly directing a verdict should the jury find mitigation outweighed by aggravation. (See People v. Peak (1944) 66 Cal App 2d 894, 909.) Since the defect in the instruction deprived appellant of an important procedural protection that California law affords noncapital defendants,it deprived appellant of due process of law. (Hicks v Oklahoma, supra, 447 U S at 346; see Hewitt v Helms (1980) 459 U.S. 460, 471-472), and rendered the resulting verdict constitutionally unreliable in violation of the Eighth and Fourteenth Amendments. (Furman v Georgia (1972) 408 U S 238.) 229 3. The "So Substantial" Standard for Comparing Mitigating and Aggravating Circumstances Set Forth in CALJIC No.8.88 Is Unconstitutionally Vague and Fails to Set Forth the Correct Statutory Standard Under the standard CALJIC instructions, the crucial question of whether to impose death hinges on the determination of whether the jurors are "persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without possibility of parole " (CALJIC No 8.88, 13CT 3660) There is nothing in the words "so substantial" that "implies any inherent restraint on the arbitrary and capricious infliction of the death sentence." (Godfrey v Georgia (1980) 446 U.S. 420, 429.) The phrase “so substantial” creates a standard that is vague, directionless and impossible to quantify. It thus invites arbitrary application of the death penalty in violation of the Eighth and Fourteenth Amendments. The word "substantial" caused constitutional vagueness problems when used as part of aggravating circumstances in the Georgia statutory death penalty scheme. (Arnold v State (1976) 224 S E 2d 386). In Arnold, the Georgia Supreme Court ruled that while it "might be more willing to find such language sufficient in another context, the fact that we are here concerned with the imposition of a death sentence compels a different result." (/bid) The United States Supreme Court has specifically praised the portion of the Arno/d decision invalidating the "substantial history" factor on vagueness grounds. (Gregg v Georgia (1976) 428 U.S. 153, 202.) The phrase "so substantial," as used in CALJIC No 8.88,is too amorphous to constitute a clear standard by which to judge whether the penalty is appropriate, and its use in this case rendered the resulting death sentence constitutionally indefensible. 230 4. CALJIC No. 8.88 Failed to Convey to the Jury That the Central Decision at the Penalty PhaseIs the Determination of the Appropriate Punishment As noted above, CALJIC No 8.88 informedthe jury that, "[t]o return a judgmentof death, each of you must be persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death instead oflife without parole " (13CT 3659-3660.) Clearly, just because death maybe warranted in a given case does not meanit is necessarily appropriate. To "warrant" death more accurately describes that state in the statutory sentencing schemeat which death eligibility is established, that is, after the finding of special circumstances that authorize or make oneeligible for imposition of death.”° Eighth Amendment capital jurisprudence demands that the central determination at the penalty phase be whether death constitutes the appropriate, and not merely a warranted, punishment. (See Woodson v North Carolina (1976) 428 U S 280, 305) CALJIC No 8.88 does not adequately conveythis standard,it thus violates the Eighth and Fourteenth Amendments. D. Prejudice Asset forth above, based on the closeness of the case, as evidenced by the length of deliberations and the number of questions posed by the jury that went °° "Warranted" is a considerably broader concept than "appropriate." Webster's defines the verb "to warrant" as "to give (someone) authorization or sanction to do something,(b) to authorize (the doing of something) " WEBSTER'S UNABRIDGED DICTIONARY(2d Ed 1966). In contrast, "appropriate"is defined as, "1 belonging peculiarly, special 2 Set apart for a particular use or person [Obs. ] 3 Fit or proper, suitable, " (Id at 91) "Appropriate" is synonymous with the words "particular, becoming, congruous,suitable, adapted, peculiar, proper, meet,fit, apt" (id), while the verb "warrant" is synonymouswith broader terms such as "justify, authorize, support." (U/d., at 2062.) 231 directly to appellant’s state of mind, it is reasonably likely that this error affected the death verdict. Reversal is required. 232 THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS AND A FAIR TRIAL, WHEN IT PERMITTED THE DISTRICT ATTORNEY TO COMMIT MULTIPLE ACTS OF MISCONDUCTDURING FINAL ARGUMENT A. Introduction A prosecutor “may prosecute with earnestness and vigor — indeed, he should do so. But, while he maystrike hard blows,he is notat liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction asit is to use every legitimate means to bring abouta just one.” (Berger v. United States (1935) 295 U.S. 78, 88.) In this case, the prosecutor repeatedly stepped over the line in closing argument, striking foul blows that denigrated defense counsel and in so doing appealing to the passion or prejudice of the jury. Both tacks deprived appellant of due process and fundamental fairness. The misconduct wasprejudicial and requires reversal. B. Issue Preservation Except where indicated, trial counsel did not object to instances of prosecutorial misconduct, and also did not request limiting instructions when they were called for. It is anticipated that respondent will contend appellant waivedall issues in which counsel did not, and could have, preserved the record. (See regarding prosecutorial misconduct, People v. Bell (1989) 49 Cal.3d 502, 548.) Whetheror not counselfailed to act, every assignmentoferror in this case should be deemedpreserved and reached onits merits, for the following reasons. First, with respect to misconduct, appellant acknowledgesthat, "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion -- and on the same ground -- the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." 233 (People v. Samayoa (1997) 15 Cal.4th 795, 841, quoting People v. Berryman (1993) 6 Cal.4th 1048, 1072.) Our Supreme Court recently noted that "the foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would befutile." (People v. Arias (1996) 13 Cal.4th 92, 159.) In addition,failure to request the jury be admonished does not forfeit the issue for appeal if "an admonition would not have cured the harm caused by the misconduct." [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 820.) In light of this precedent, lack of defense objections to numerousinstances of misconduct will not preclude appellate review where repeated objections followed by timely admonitionsstill could not have cured the harm of misconduct interwoven throughout a case. (See, e.g., People v. Kirkes (1952) 39 Cal.2d 719, 726 [repeated objections and admonitions would have emphasized rather than cured repeated misconduct interspersed throughout prosecutor's argument to the jury]; People v. Pitts (1990) 223 Cal.App.3d 606, 692 [where improper commentsand assertionsare interspersed throughouttrial and/or closing argument, repeated objection might well serve to impress upon the jury the damaging force of the misconduct, anda series of objections will not generally cure the harmful effect of such misconduct]; People v. Johnson (1981) 121 cal.App.3d 94, 103-104; People v. Bandhauer (1967) 66 Cal.2d 524, 530.) Under these unusual circumstances, trial counsel's failure to object is excused and the asserted grounds for misconduct were preserved for appellate review. (People v. Hill, supra, 17 Cal.4th at pp. 820-821; People v. Arias, supra, 13 Cal.4th at p. 159; People v. Noguera, supra, 4 Cal.4th at p. 638.) Second, because of the misconduct, the failure to object or otherwise preserve the record as to other issues also should be excused and the merits of the issues reached. As in People v. Pitts, supra, 223 Cal.App.3d 606, the prosecutor’s incessant misbehavior andthetrial court’s inability to control him infected this case to the point that appellant was denied due process. In this situation, defense counsel’s failure to object to evidence or request curative admonitions also should be 234 excused. (See Pitts, supra, at pp. 692-694; People v. Green (1980) 27 Cal.3d 1, 27- 34.) As the court observed in Estrada, supra: “We recognize objections were not made ofall of the cited references to the search warrant, and in particular no objection was made to... closing arguments on the subject. Generally, such failure to object results in a waiver of consideration of the claimed misconduct. The reason for the rule requiring objection is to give the trial court an opportunity to correct the abuse and prevent any harmful effect. [Citation] When, however, as in the present case, the misconduct is part of a pattern, when the misconduct is subtle and when multiple objections and requests for mistrial are made, we conclude it proper for a reviewing court to consider the cited misconduct in evaluating the pattern of impropriety. [Citation].” (People v. Estrada, supra, 63 Cal.App.4"at p. 1009.) Fourth, appellant should not be precluded from raising all issues for the first time on appeal because individually and collectively these errors were a denial of his fundamental federal constitutional rights to due process, a fair trial, and confrontation, under the Fifth, Sixth and 14th Amendments. Not all claims of error are prohibited in the absence of a timely objection in the trial court. A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights. (Penal Code, § 1259; People v. Vera (1998) 15 Cal.4th 269, 277. See, e.g., People v. Saunders (1993) 5 Cal.4th 580, 592 [plea of once in jeopardy]; People v. Holmes (1960) 54 Cal.2d 442, 443-444 [constitutionalright to jury trial].) Where an important federal constitutional right is sought to be preserved, the lack of a specific objection does not waive the issue. If the introduction of inadmissible evidence constitutes a denial of federal due process, failure to make the specific proper objection should not waive the issue on appeal. (People v. Matteson (1964) 61 Cal.2d 466, 468-469; People v. Underwood (1964) 61 Cal.2d 113, 126; People v. Hinds (1984) 154 Cal.App.3d 222, 237, citing Jackson v. Denno (1964) 378 U.S. 368, 376-377.) 235 Fifth, in situations such as presented by this case, the trial judge must bear some responsibility “for safeguarding both the rights of the accused andthe interest of the public in the administration of criminal justice. The adversary nature of the proceedings doesnotrelieve the trial judge of the obligation ofraising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination ofthe trial.’ [Citations.]” (People v. McKenzie (1983) 34 Cal.3d 616, 627.) Finally and in the alternative, the issues should be preserved based on ineffective assistance of counsel in not interposing appropriate objections or requesting admonitions, and thereby waiving otherwise meritorious issues, which directly prejudiced appellant by not giving the trial court the opportunity to correct the misimpression of the jury. ( Strickland v. Washington (1984) 466 U.S. 668, 684- 685.) In order to prove ineffective assistance, the defendant must demonstrate both that counsel's performance wasdeficient and that this deficiency caused prejudicial error. (Strickland, supra, at pp. 684-685; People v. Ledesma (1987) 43 Cal.3d 171.) It is often necessary to establish such ineffective assistance by means ofa separate action in which additional evidence is presented pursuant to petition for writ of habeas corpus. (People v. Pope (1979) 23 Cal.3d 412, 422.) This Court has stressed that where the record on appeal does not indicate why counsel acted or failed to act, a claim of ineffective assistance of counsel is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) However, where as here the record reveals no tactical reason for not taking the appropriate action, the issue of ineffective assistance is cognizable on direct appeal. (People v. Jones (1994) 24 Cal.App.4th 1780, 1783, fn. 5; People v. Ellis (1987) 195 Cal.App.3d 334, 338.) 236 C. Governing Law and Application 1. The Prosecutor Was Duty-Boundto Seek Justice and Fairness In Pursuing Appellant’s Conviction “The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘”’A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.]” (People v. Hill (1998) 17 Cal.4" 800, 819.) “Conduct by a prosecutor that does not render a criminaltrial fundamentally unfair 1s prosecutorial misconduct under state law only if it involves *”’’the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.””’ [Citations.]” (Hill, supra, at p. 819; People v. Samayoa (1997) 15 Cal.4™ 795, 841.) A prosecutoris entitled to vigorously pursue his case. However, he or she also is held to an elevated standard of conduct. “A prosecutoris held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state.” (Hill, supra, at p. 820.) The prosecutor represents “a sovereignty whoseobligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” (Berger v. United States, supra, 295 USS.at p. 88.) Thusit is without question that a prosecutor has a solemn duty notjust to seek a conviction butalso to see to it that justice is done. "It is a prosecutor's duty "to see that those accused of crime are afforded a fair trial." [Citation.] "The role of the prosecution far transcends the objective of high scores of conviction; its function is rather to serve as a public instrument of inquiry and, pursuant to the tenets of the decisions, to expose the facts." [Citation.]' [Citation.]" (People v. 237 Daggett (1990) 225 Cal.App.3d 751, 759.) The defense is not required to show bad faith in order to obtain relief for prosecutorial misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 213-214.) Misconduct is judged by an objective standard and the good faith vel non of the prosecutor is not determinative. (People v. Alvarez (1996) 14 Cal.4" 155, 213.) In fact, our Supreme Court in Hill observed “that the term prosecutorial ‘misconduct’ is somewhat of a misnomerto the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.” (People v. Hill, supra, 17 Cal.4"at p. 823, fn. 1.) 2. The Prosecutor Portrayed Defense Counsel As Dishonest Villains Who Sought To Mislead the Jury A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. (People v. Hill (1998) 17 Cal.4" 800, 832, citing People v. Wash (1993) 6 Cal.4th 215, 265; People v. Thompson (1988) 45 Cal.3d 86, 112; People v. Perry (1972) 7 Cal.3d 756, 789- 790; and People v. Bain (1971) 5 Cal.3d 839, 847-848) "An attack on the defendant's attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable." (Hill, supra, at p. 832, citing 5 Witkin & Epstein, supra, Trial, § 2914, p. 3570.) “While a prosecutor may properly sympathetically portray a victim, he may not include defense counsel as a villain who was attacking the victim. ([Citation.] By so doing, he casts aspersions on the defendant’s right to defend himself and to be represented by counsel. [Citation.]” (People v. Pitts (1990) 223 Cal.App.3d 606, 704.) “Moreover, such misconduct cannot be justified even though the prosecutor's remarks maybein reply to those made by defense counsel. [Citations]” (Pitts, supra, at p. 704.) “A defendant’s conviction should be based on the evidence adduced at trial, and not on the purported improprieties of his counsel.” (People v. Sandoval (1992) 4 Cal.4" 155, 238 183.) “When a prosecutor denigrates defense counsel, it directs the jury’s attention away from the evidence andis therefore improper.” (/d. at pp. 183-184.) Personal attacks on counsel are unprofessional, and if prejudicial, require reversal. (See United States v. Young (1984) 470 U.S. 1, 10, citing ABA Standards for CriminalJustice.) The prosecutor in this case, William Mitchell, could not restrain himself from demonizing defense counsel. While he certainly was entitled to vigorous advocacy, his characterization of counsel and imputation of evil motives completely crossed the line,”’ as the following excerpts make very clear:pictely rp “Defense counsel will belittle the facts, accuse me of speculation. I didn’t create this evidence...” (36RT 5606) “The defense, in the People’s position, has exaggerated the abuse the defendant has suffered in his childhood. ...” (36RT 5608) “The defense in this case has been designed to desensitize you to the crimes that the defendant committed. I want you to recognize, if you have not already, the language of manipulation. Her murder is referred to as a tragedy. It’s not a tragedy, it’s a murder. It’s repeatedly said that Melissa died. Melissa didn’t die, she was killed.... The defense has attempted to present evidence of his entire childhood to you, especially at the ages of five and eight, to attempt to humanize him,to divert attention away from the crime he committed and the reason whyhe’s here. *IWhile the defense interposed many objections during argument, counsel did not object to this aspect of the prosecutor’s argument. For the reasons set forth above, the issue nonetheless is preserved for appellate review. 239 “And perhaps the most glaring example of a technique used to divert attention away form the defendant, who is the focus of these proceedings, is to paint other people, other persons, as the bad guy, as the bad guy. It’s been the big bad D.A.in this case who’s overfilled it, who’s overcharged it, who’s made ortried to makeit look, according to the defense, as if the defendant did more than he actually did, committed more crimes than he actually did. “And Mr. Ebert gets up here and tries to analogize the charges in this case to a disciplinary marker...” (36RT 5609-5610) “The defense will belittle the charges, they belittle the evidence, they belittle the crime, all for the goal of diverting attention away from Daniel Linton.” (36RT 5610-5611) “And they know they only need one of you. They only need one of youto fall for their diversion. They want you to believe the defendant is not that bad. It’s his first time committing a crime. It’s his first time, so he deserves the more lenient sentence. Think about that argument for whatit is.” (36RT 5613) “Particularly appalling is the audacity of defense counsel in calling or evoking Melissa Middleton’s name in an attempt to make a plea for the lesser sentence in this case. Not only appalling, it was offensive.” (36RT 5618) Each of these statements violated the precepts against attacking defense counsel. (See again, People v. Pitts, supra, 223 Cal.App.3d at p. 704; People v. Sandoval(1992) 4 Cal.4" 155, 183; United States v. Young (1984) 470 U.S. 1, 10, 240 citing ABA Standards for Criminal Justice.) Even worse, some of the accusations by Prosecutor Mitchell strayed into the realm of misleading the jury about his own actions. For example, Mitchell claimed, “I didn’t create this evidence” (36RT 5606) and complained that the defense “paint[ed] other people, other persons [including the district attorney], as the bad guy, as the bad guy.” (36RT 5609- 5610) One wonders whether the prosecutor protested too much. This case encompasses a compelling record that law enforcement authorities, led by Mitchell, made an assumption that appellant’s strangulation of Melissa was sexually motivated and then worked backwards to create evidence to fit their theory. There is a strong possibility that the police interrogations and promises by Mitchell himself resulted in a false confession by appellant as to a prior incident which may not have involved him and/or may not have been an attempted sexual assault. Yet that prior incident may have been created or embellished as a result of improper police techniques of which the jury was not educated because of other rulings aboutthe trial court. (See arguments, ante.) This aspect of Prosecutor Mitchell’s closing argument was plain misconduct. (People v. Pitts, supra, 223 Cal.App.3d at p. 704; People v. Sandoval (1992) 4 Cal.4™ 155, 183; United States v. Young (1984) 470 US. 1, 10, citing ABAStandards for Criminal Justice.) 3. The Prosecutor Vouched For Key Prosecution Witnesses. It also is unacceptable for a prosecutor to vouch for the veracity of a witness by attesting to the credibility of that witness. (See People v. Perez (1962) 58 Cal.2d 229, 245-247; People v. Johnson (1981) 121 Cal.App.3d 94.) Vouching “constitutes improper argument if there is substantial danger that jurors will interpret the statement of opinion or belief as being based on information other than evidence adduced at trial, but not if it is merely the prosecutor's view of deductions and inferences warranted by the evidence. [Citations]” (People v. Pitts, supra, 223 241 Cal.App.3dat p. 702, fn. 27, citing People v. Adcox (1988) 47 Cal.3d 207, 236-237; People v. Bain (1971) 5 Cal.3d 839, 848; People v. Kirkes (1952) 39 Cal.2d 719, 723-724; People v. Prysock (1982) 127 Cal.App.3d 972, 997.) The prosecutor’s argument about defense counsel’s nefarious motives also contained elements of vouching for the prosecution team. Recall, Prosecutor Mitchell argued, “And perhaps the most glaring example of a technique used to divert attention away from the defendant, who is the focus of these proceedings, is to paint other people, other persons, as the bad guy, as the bad guy. It’s been the big bad D.A.in this case who’s overfilled it, who’s overcharged it, who’s madeortried to make it look, according to the defense, as if the defendant did more than he actually did, committed more crimes than he actually did.” (36RT 5609-5610) This passage is problematic because it implies that the district attorney is the “good guy” whohas evidence that the jury does not know aboutandthat the jury should trust him, as the public prosecutor, to be doing theright thing. “Since it comes from an official representative of the People, it carries great weight...” (Pitts, supra, at p. 694, citing People v. Talle, supra, at p. 677) The argumentis improper vouching and misconduct. 4. The Prosecutor Argued Facts Not In Evidence In People v. Hill, supra, the Court condemned the practice of referring to facts not in evidence during final argument: “‘We have explained that such practice is clearly ... misconduct’ [Citation] because such statements ‘tend[] to make the prosecutor his own witness-offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special 242 regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” [Citations.]’ [Citations] ‘Statements of supposed facts not in evidence ... are a highly prejudicial form of misconduct, and a frequent basis for reversal.’ (People v. Hill, supra, 17 Cal.4™ at p. 828, citing People y. Pinholster (1992) 1 Cal.4" 865; People v. Bolton (1979) 23 Cal.3d 208, 213; People v. Benson (1990) 52 Cal.3d 754. 794 ["a prosecutor may not go beyond the evidence in his argument to the jury"]; People v. Miranda (1987) 44 Cal.3d 57; People v. Kirkes (1952) 39 Cal.2d 719, 724; 5 Witkin & Epstein, supra, Trial, § 2901, p. 3550.) The prosecutor in this case repeatedly argued facts to the jury that were not fair or reasonable inferences from the evidence: a. “Fact” that Appellant Masturbated in Melissa’s Underwear Immediately After the Killing The prosecutor argued without foundation that appellant took Melissa’s underwear and masturbated into them right after he killed her. He returnedto this theme repeatedly during closing and final argument, always over objection. There was no foundation to support this speculation, which the district attorney argued as though it were undisputedfact. Duringinitial closing argument, Mitchell argued as follows: Mr. Mitchell; “The defendant masturbated after he killed Melissa Middleton.It’s a disgusting thought, I know. Ms.Cronyn: Your Honor, there’s no evidenceofthat. Mr. Mitchell: The evidence showsthat — The Court: Mr. Mitchell is discussing reasonable interpretations. It’s up to the jurors to determine whether or not that’s reasonable. 243 Mr. Mitchell: Whyelse does he destroy or attempt to destroy and conceal that underwear after the commission of the murder? He had had that underwear for months before. Why doesn’t he just throw it away afterit’s found in his room or in — he does the laundry or something? He’s got possession of it. [para] does it make sense that he’s just going to have this stuff? Why does — why does he use it to masturbate? Melissa’s dirty underwear. Think aboutit.” (35RT 5559) In final closing, Mitchell returned to this argument: Mr. Mitchell: «And the most glaring, unremorseful and disgusting fact of this case is that with Melissa’s face, dead face, fresh in his mind, the defendant, Daniel Linton, his sexual urges unrequited, had to satisfy himselfusing Melissa’s underwear. Ms. Cronyn: Your Honor, objection. There’s absolutely no evidence of that whatsoever. The Court: Again, it’s something that the jurors can determine for themselves, if it comes within the reasonable range of the evidence. Ms. Cronyn: Your Honor, may we preserve an objection underthe Fifth, Sixth, Eighth and Fourteenth Amendments? The Court: Certainly. Mr. Mitchell: ... I didn’t create this evidence. I didn’t have Melissa’s underwear in my possession and put them in the trash can with the keys, with her ring. The defendant did. And it’s that proximity in time and place in his possession that leads to rational inferences. They didn’t just happen to fall into the trash at the same time by somebody else putting there other than the defendant. 244 [para.] With the face of death fresh in his mind, he had to — and excuse me for being blunt — get himself off, which shows you his true intent and his obsession with Melissa Middleton.” (36RT 5605- 5606) The court erred in overruling the defense’s objection to this argument for several reasons. It is not in dispute that appellant apparently masturbated into the underpants or used them to clean himself afterwards. However, the prosecution established no foundation whatsoever as to when Melissa’s underwear ended up at the Linton residence. If the underwear had been in the Linton household ragbag for months, as the prosecutorinitially argued, appellant may not even have known it belonged to Melissa. If on the other hand, he stole them from her room right after he killed her, as the prosecution later and contradictorily implied, there is no evidence to support that speculation. The prosecution failed to provide a foundation as to when appellant masturbated and no technology waspresented as to the age of the semen found on the underwear. The supposition that appellant killed Melissa and then went home and masturbated was nothing more than a theory posed by the prosecution to inflame and over-persuade the jury with the revolting image of appellant killing her and then satisfying himself sexually. The prosecutor’s decision to argue it as fact was misconduct. (See Pitts, supra, 223 Cal.App.3d at p. 702-703) b. “Fact” that Appellant Expressed No Remorse Onthe heels of its final argument that appellant reacted to the fact that he killed Melissa by masturbating into her underpants, the prosecutor further contended that he showed no remorse: Mr. Mitchell: “Nothing Daniel Linton did the next day, November 30, 1994, when the officer came to pick him up at his houseto talk to him some more, nothing he did that day can erase or 245 mitigate what he had done to Melissa and to her family the prior day. When you’re looking for any sign of remorse that is important as a mitigating factor in this case, look at his actions on the day thatit counts, on the day that it matters, on the day when one would be revolted. Ms. Cronyn: Your Honor, Sixth Amendmentright to confrontation. We had no opportunity to cross-examine this witness. The Court: Overruled. Mr. Mitchell: The day where one would be revolted by one’s conduct if one had in him that human feeling, natural emotion, not the mentality of a killer. That’s when it counts. Not after police suspicion has focused on you, not after they have been asking probing questions about a prior incident, not after they’ve noticed scratches on your arm, and not after they’ve asked you to come down to the police station to talk further about the case. It wasn’t until the next day that Mr. Linton ever expresses any sorroworgrief. Ms. Cronyn: Again, Sixth Amendment right to confrontation. The Court: Overruled.” (36RT 5606-5607) This argument also was very misleading based on the facts. There islittle evidence about appellant’s demeanor the day ofthe killing when he spoketo the police. It is clear, however, that he was not very sophisticated and broke down almost immediately the following morning when Detective Stotz picked him up. At that time, he expressed concern, possibly fear, that he did not want to tell the police the truth when his parents had been around the night before. (17RT 2631- 2636, 2644-2648; 18RT 2768-2769) Thus for the prosecutor to characterize this scenario as one of no remorse was an inaccurate portrayal of what actually occurred. 246 c. “Fact” that Appellant Would Have a Comfortable Life in Prison, With Amenities Such as Books and Television The prosecutor argued that life without parole was insufficient punishment in this case: “I suggest to you it’s not enough in this case. The defendantwill have a life, if you let him have life without parole. He will have a community of people that he deals with. He will have his friends. He will have money to buy things. He will have television. He will have books. He will have visits from his family...” The trial court overruled a defense objection to this line of argument. The court wasin error. From the tenor of this argument, a juror unversed with the ways of the criminal justice system might conclude that appellant would be living the cushy life at a “Club-Fed” type facility. Of course, there was no evidence to support such a portrayal of what appellant’s life would be like in prison. Not only was there no evidence that he would have booksortelevision in his cell, there also was nothing to support a supposition that his family could visit him on a regular basis or that he would have friends. The only effect of this argument was to mislead the jury about facts that were not in evidence and may not be true. Once again, “Argument is improper whenit is neither based on the evidence norrelated to a matter of common knowledge. [Citations]” (Pitts, supra, 223 Cal.App.3d at p. 702-703) 5. The Prosecutor Appealed to Public Passion and Sentiment It also is misconduct to appeal to the jury’s passion or prejudice and/or urge jurors to personalize the case. “An argument bythe prosecution that appeals to the passion or prejudice of the jury is improper.” (People v. Pitts, supra, 223 Cal.App.3d at p. 696, citing People v. Haskett (1982) 30 Cal.3d 841, 863; People v. Talle (1952) 111 Cal.App.2d 650,. 676.) The prosecution violated this rule as well. In closing the prosecutor urged, 247 Mr. Mitchell: “I’d suggest to you that a death verdict, ladies and gentlemen,is the ultimate validation of what we hold and value most dear in our community and as individuals: Ourlife, our children, and the sanctity of our home. Andifyou wereto find that death is the appropriate sentence for Mr. Linton, you are doing no more than affirming in the loudest voice possible those values in our community. Ms. Cronyn: Your Honor, public community and public sentimentis improper argument, and there’s a reference to that, the sanctity of our homes. Mr. Mitchell: Should I be heard, Your Honor? The Court: Yes Mr. Mitchell: I’m commenting on the circumstancesof this crime warranting — or how they warrant the more appropriate sentence here is death. Heviolated the sanctity of a home in our community when hekilled a child who wasto besafe in that home. Mr. Cronyn: That’s wasn’t the argument, Your Honor. It’s appeared — The Court Well, I’m going to sustain the objection. Mr. Mitchell: A death verdict is the ultimate validation of our community values. Let the punishment fit the crime. A death verdict says we will not tolerate this type of crime. Ms. Cronyn: Again, Your Honor,it’s appealing to the public sentiment. It’s improper. The Court: I don’t think he stepped over the line at that point. Overruled.” (36RT 5619-5620) 248 Here, the emphasis by the prosecutor on community values and the implication that any juror who voted against the death penalty would not be upholding those values, was misconduct. “The overall tone of the argument, however, was purely an attempt to play upon the passions and prejudices of the jurors.” (Pitts, supra, 223 Cal.App.3d at pp. 701-702.) D. Prejudice Reversal is mandated based on the sheer volume of misconductset forth here. The misconduct should be judged under the Chapmanstandard for evaluating the prejudicial effect of federal constitutional error. (Chapman vy. California (1967) 386 U.S. 18, 24.) Each and every inappropriate action taken by the prosecutor resulted in a due process violation. (U.S. Const., Amend. XIV) Where the prosecutor argued facts that were not in evidence or vouched for law enforcement witnesses, he denied appellanthis right to confront and cross- examine pursuant to the Sixth Amendment. (U.S. Const., Amend. VI; People v. Bolton, supra, 23 Cal.3d 208, 214.) His appeals to community passion or prejudice were equally inflammatory. (People v. Pitts, supra, 223 Cal.App.3d at p. 696, citing People v. Haskett (1982) 30 Cal.3d 841, 863; People v. Talle (1952) 111 Cal.App.2d 650,. 676.) For these reasons and those set forth in argumentI, ante., reversal is required. 249 XI. THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS, A FAIR TRIAL, AND THE RIGHT TO A JURY TRIAL, WHEN IT FAILED TO FURTHER INQUIRE INTO ALLEGATIONS OF MISCONDUCT AFTER TWO JURORS EXCHANGED EMAILS DURING DELIBERATIONS, OUT OF THE PRESENCE OF OTHER JURORS A, Introduction Juror misconduct may have occurred again during penalty deliberations, whenat least two jurors emailed the foreperson, Juror No. 9, to complain about each other’s attitudes. The trial court briefly questioned No. 9, concluded there was not a problem,and took no further action to investigate the allegations, over defense objection that the errant jurors also shouldbe identified and questioned. Thetrial court abused its discretion whenit refused to conduct further inquiry. B. Standard of Review A trial court may conduct a hearing to determine the truth ofjury misconduct allegations, when the court “in its discretion, concludesthat an evidentiary hearing is necessary to resolve material, disputed issues offact.” (People v. Hedgecock (1990) 51 Cal.3d 395, 415, cited with approval in People v. Lewis (2001) 26 Cal.4" 334, 388.) Inreviewing a claim of juror misconduct or juror bias, the reviewing court “accept[s] the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citation]” (People v. Nesler (1997) 16 Cal.4™ 561, 582.) Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court's independent determination. [Citations]” (Nes/er, supra, at p. 582.] 250 C. Factual and Procedural Background On the third day of penalty deliberations, March 30, 1999, the court received a note from the jury foreperson stating, “I, Juror No. 9, received at my e- mail address two e-mails from individuals on the jury regarding the conduct of other jurors. One juror was upset at another for saying they did not have compassion. One juror was upset at another for saying they were having too much fun in the deliberation room andnot taking the case seriously. Is this appropriate? Is this a problem?” (13CT 3664, 3670; 36RT 5697-5698.) The prosecution suggested that the court tell the foreperson to inform the other jurors that individual contact is not proper and that issues have to be brought up in the presence ofall 12 jurors. The defense stated that the jurors were not following the court’s admonition and should be identified and spoken to individually. (36RT 5697-5698) The court questioned Juror No. 9, who confirmed that both emails were sent to him without copies to others. Both statements were made in the deliberations room, in front of all the jurors, and the emails were deleted. (36RT 5700-5705) The defense argued that the jurors who sent the emails should be identified and that other jurors might be sending emails to each other. The prosecution argued that there was no evidence of misconduct. The court found that there was no juror misconduct at this point, the discussion was within the context of jury deliberations, and some jurors were “venting” not discussing the case. (36RT 5706-5707) D. Governing Law and Application A criminal defendant has a constitutional right to trial by unbiased, impartial jurors. (U.S. Const., Sixth and 14th Amend.; Cal. Const., art. I, §16; Irwin v. Dowd (1961) 366 U.S. 717, 722; People v. Hughes (1961) 57 Cal.2d 89, 95.) A single juror who is partial or motivated by prejudice deprives a defendant of his Sixth 251 Amendmentrightto trial by an impartial jury. (See United States v. Plache (9th Cir. 1990) 913 F.2d 1375 [Eastern Dist. of Calif.]; United States v. Eubanks (9th Cir. 1979) 591 F.2d 513, 517; United States v. Hendrix (9th Cir.) 549 F.2d 1225, 1227, cert. den. (1977) 434 U.S. 818.) A defendantis “entitled to be tried by 12, not 11, impartial and unprejudiced jurors. ‘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. Holloway (1990) 50 Cal.3d 1098, 1112, 269 Cal.Rptr. 530, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Due process requires "a jury capable and willing to decide the case solely on the evidence beforeit, and trial judge ever watchful to preventprejudicial occurrences and to determine the effect of such occurrences when they happen." (Smith v. Phillips (1982) 455 U.S. 209, 217.) “Juror misconduct .... leads to a presumption that the defendant was prejudiced thereby and mayestablish juror bias. [Citations]” (People v. Nesler (1997) 16 Cal.4™ 561, 578.) The effect of out-of-court information upon the jury is assessed in the following manner. “When juror misconduct involves the receipt of information about a party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood of juror bias. [Citation] Such bias may appearin either of two ways:(1) if the extraneous material, judged objectively, is so prejudicial in and ofitself that it is inherently and substantially likely to have influenced a juror; or (2) evenif the information is not ‘inherently’ prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determines that it is substantially likely a juror was ‘actually biased’ against the defendant.” (Nes/er, supra, at p. 578.) If there is a “substantial likelihood that a juror was actually biased,” the verdict must be set aside, “no matter how convinced [the Court] might be that an unbiased jury would have reached the same verdict, because a biased adjudicator is one of the few 252 structural trial defects that compel reversal without application of a harmless error standard.” (Nesler, supra, at p. 578.) What constitutes “actual bias” of a juror varies according to the circumstances of the case. (Nesler, supra, 16 Cal.4" t p. 580.) The United States Supreme Court has set the following standard for assessing juror partiality, “Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” (United States v. Wood (1936) 299 U.S. 123, 145-146, 57 S.Ct. 177, 185, 81 L.Ed. 78.) “ “The theory of the law is that a juror who has formed an opinion cannot be impartial.’ [Citation.] [{] It is not required, however, that the jurors be totally ignorant of the facts and issues involved.... It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”( Irvin v. Dowd, supra, 366 U.S. at pp. 722-723, 81 S.Ct. at pp. 1642-1643, italics added, (quoting Reynolds v. United States (1878) 98 U.S. (8 Otto) 145, 155, 25 L.Ed. 244.) An impartial juror is someone “capable and willing to decide the case solely on the evidence” presented at trial. ( Smith v. Phillips, supra, 455 U.S. at p. 217, 102 S.Ct. at p. 946; In re Carpenter, supra, 9 Cal.4th at pp. 648, 656.) Under California law,“if a juror's partiality would have constituted grounds for a challenge for cause during jury selection, or for discharge duringtrial, but the juror's concealment of such a state of mind is not discovered until after trial and verdict, the juror's actual bias constitutes misconduct that warrants a newtrial under Penal Code section 1181, subdivision 3. [Citations](People v. Nesler, supra, 16 Cal.4"at p. 581, citing People v. Galloway (1927) 202 Cal. 81, 89-92, 259 P. 332; People v. Meza (1987) 188 Cal.App.3d 1631, 1642-1643, 234 Cal.Rptr. 235.) “Thus, actual bias supporting an attack on the verdict is similar to actual bias warranting a juror's disqualification. [Citations].” (People v. Nesler, supra, at p. 581.) “[JJuror misconduct maystill be found where bias is clearly 253 apparent from the record. [Citation]” (People v. San Nicholas (2004) 34 Cal.4" 614, 646.) A juror who violates his or her oath and the trial court’s instructions is guilty of misconduct. “When a person violates [her] oath as a juror, doubtis cast on that person's ability to otherwise perform [her] duties.” ’ [Citation]” (People v. Nesler, supra, 16 Cal.4" at p. 586, citing In re Hitchings (1993) 6 Cal.4™ 97, 120.) "Misconduct by a juror, or a nonjuror's tampering contact or communication with a sitting juror, usually raises a rebuttable ‘presumption’ of prejudice.[Citations.]" (Jn re Hamilton (1999) 20 Cal.4th 273, 295.) In People v. Hedgecock (1990) 51 Cal.3d 395, the Supreme Court held that “it is within the discretion of a trial court to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to testify at such a hearing. [fn. omitted]” (Hedgecock, supra, at p. 419, cited with approval in People v. Lewis, supra, 26 Cal.4" at p. 388 and People v. Hayes (1999) 21 Cal.4" 1211, 1255; cf. People v. Cox (1991) 53 Cal.3d 618-698.) The Court in Hedgecock observed, “There are substantial advantages to a rule recognizing the trial court's discretion to order an evidentiary hearing at which jurors may testify. Most important, when compared to the use of affidavits, a hearing at which witnessestestify and are subject to cross-examination is a more reliable means of determining whether misconduct occurred. As observed in Ryan v. United States (D.C.Cir.1951) 191 F.2d 779, 781: ‘If the use of affidavits be thought a doubtful method for getting at the facts [citations], hearing witnesses on examination and cross-examination is free of such doubt.’ And, as Justice O'Connor noted in her concurring opinion in Smith v. Phillips (1982) 455 U.S. 209, 222, 102 S.Ct. 940, 948, 71 L.Ed.2d 78: ‘A hearing permits counsel to probe the juror's memory, his reasons for acting as he did, and his understanding of the consequences ofhis actions. A hearing also permits the trial judge to observe the juror's demeanor under cross-examination and to evaluate his answers in light of 254 2995the particular circumstances of the case. 417-418) (Hedgecock, supra, 51 Cal.3d at pp. The Court in Hedgecock added, “Permitting jurors to testify at an evidentiary hearing is consistent with procedures at other stages of criminal proceedings. For example, if during a trial the court becomes aware of possible juror misconduct, it must ‘make whatever inquiry is reasonably necessary to ?determine if the juror should be discharged....’ [Citation] Inherent in the court's powerto makethis inquiry is its discretion to examine jurors under oath. And we have suggested that jurors may becalled to testify in habeas corpus proceedings initiated in California state courts. [Citation](Hedgecock, supra, at pp. 417-418) Of course, “This does not mean... that a trial court must hold an evidentiary hearing in every instance of alleged jury misconduct. The hearing should not be used as a ‘fishing expedition’ to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing.” (Hedgecock, supra, at p. 417) “At such a hearing, jurors ‘maytestify to “overt acts’--that is, such statements, conduct, conditions, or events as are “opento sight, hearing, and the other senses and thus subject to corroboration”--but may not eeetestify ““to the subjective reasoning processes of the individual juror..." [Citation]” (People v. Staten (2000) 24 Cal.4" 434, 466, citing In re Stankewitz (1985) 40 Cal.3d 391, 398.) The jurors who felt compelled to exchange emails between themselves clearly violated their oaths and the court’s instructions and thereby committed misconduct. (People v. Nesler, supra, 16 Cal.4" at p. 586; In re Hamilton, supra, 20 Cal.4™ at p. 295.) Their heated exchange raised a strong possibility that the misconduct was prejudicial and separate questioning of the jurors was needed to resolve the conflict in the information provided by the foreman. The court 255 exacerbated the problem by not following the defense suggestion that the errant jurors should be identified and questioned as to whatthey said in the emails, and for not attempting to obtain a copy of the emails. The court’s dismissive conclusion that the jurors were just “venting” was inadequate and waserror. (See again 36RT 5700-5707) D. Prejudice The possibility that juror misconduct has occurred implicates a defendant’s Sixth Amendmentrights and therefore anyerror in failing to inquire and develop a record as to allegations of misconduct should be evaluated under the harmless- beyond-a-reasonable-doubt standard of prejudice set forth in Chapman vy. California (1967) 386 U.S. 18, 24. The prosecution will not be able to carry its burden of negating prejudice in this instance. The specter of juror misconduct reinforces the fact that protracted deliberations occurred and that the determination of penalty was close and difficult, at one point leading to a deadlock. (see argumentI, ante.) At least two emails were exchanged between individualjurors but not all of the jurors, and they were factionalized as to what other jurors were advocating, raising a serious question as to whether the verdict reached wastruly unanimous. (13CT 3664; 36RT 5697-5698) By not exercising its discretion and conducting an evidentiary hearing as to what were the actual points of contention between the two jurors (as opposed to the foreman’s hearsay recounting of what they said), the trial court failed to develop the record when heated and serious accusations were being cast about. Accordingly, the court abused its discretion in failing to conduct an evidentiary hearing and deprived the defense of the ability to make a full record. (See People v. Hedgecock, supra, 51 Cal.3d at p. 420.) The trial court’s decision not to fully question the errant jurors and rule accordingly was an abuse of discretion, not harmless beyond a reasonable doubt and requires reversal. (Chapman v. California, supra, 386 U.S.at p. 24.) 256 XI. 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 schemeas 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 ofthat system in context.” (Kansas v. Marsh (2006) 126 S.Ct. 2516, 2527, fn. 6.)22 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 maybe so lacking in other checks on arbitrariness that it would not pass constitutional muster without such review). *2 In Marsh,the high court considered Kansas’s requirementthat death be imposedif a jury deemed the aggravating and mitigating circumstancesto be in equipoise and on that basis concluded beyond a reasonable doubtthat the mitigating circumstances did not outweigh the aggravating circumstances. This wasacceptable,in light of the overall structure of “the Kansas capital sentencing system,” which,as the court noted, “is dominated by the presumption thatlife imprisonmentis the appropriate sentence for a capital conviction.” (126 S.Ct. at p. 2527.) 257 When viewedas a whole, California’s sentencing schemeis so broadin its definitions of who is eligible for death and so lacking in procedural safeguardsthat it fails to provide a meaningfulorreliable 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 schemes that 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 murdererintoits grasp. It then allows any conceivable circumstance of a crime — even circumstances squarely opposedto each other(e.g., the fact that the victim was youngversusthefact that the victim wasold, the fact that the victim waskilled at homeversusthefact that the victim was killed outside the home) — to justify the imposition of the death penalty. Judicial interpretations have placedthe entire burden of narrowing the class of first degree murderers to those most deserving of death on Penal Code § 190.2,the “special circumstances” section ofthe statute — but that section wasspecifically passed for the purpose of making every murderer eligible for the death penalty. There are no safeguards in California during the penalty phase that would enhancethereliability of the trial’s outcome. Instead, factual prerequisites to the imposition of the death penalty are found by jurors whoare not instructed on any burden ofproof, and who maynot agree with each otherat all. Paradoxically, the fact that “death is different” has been stood on its head to mean that procedural protections taken for grantedin trials for lesser criminal offenses are suspended whenthe question is a finding that is foundational to the imposition of death. The 258 result is truly a “wanton and freakish” system that randomly chooses among the thousands of murderers in California a few victims of the ultimate sanction. A. APPELLANT’S DEATH PENALTYIS INVALID BECAUSE PENAL CODE§ 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 manycases in whichit is not. (Citations omitted.)” (People v. Edelbacher (1989) 47 Cal.3d 983, 1023.) In order to meet this constitutional mandate, the states must genuinely narrow,byrational and objective criteria, the class of murdererseligible for the death penalty. According to this Court, the requisite narrowing in California is accomplished bythe “special circumstances”set out in section 190.2. (People v Bacigalupo (1993) 6 Cal.4th 857, 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 Favor of Proposition 7.”) This initiative statute was enacted into law as Proposition 7 by its proponents on November7, 1978. At the time of the offense charged against appellant the statute contained 26 special circumstances” purporting to narrow the category of first degree murders to those murders most deserving of the death penalty. These special 23 ; ; ; This figure does notinclude the “heinous, atrocious, or cruel” special circumstance declared invalid in People v. Superior Court (Engert) (1982) 31 Cal.3d 797. The numberof special circumstances is now 33. (Pen. Code §190.2) 259 circumstances are so numerousandso broadin definition as to encompass nearly every first-degree murder,per the drafters’ declared intent. In California, almost all felony-murders are now special circumstance cases, and felony-murdercases include accidental and unforeseeable deaths, as well as acts committed in a panic or under the dominion of a mental breakdown,or acts committed by others. (People v. Dillon (1984) 34 Cal.3d 441.) Section 190.2’s reach has been 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 Peoplev. Hillhouse (2002) 27 Cal.4th 469, 500-501, 512-515.) These categories are joined by so manyother categories of special-circumstance murderthat 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 opposedto the selection function, is to be accomplished bythe legislature. The electorate in California and the drafters of the Briggs Initiative threw down a challenge to the courts by seeking to make every murderer eligible for the death penalty. This Court should acceptthat challenge, review the death penalty scheme currently in effect, and strike it downasso all-inclusive as to guarantee the arbitrary imposition of the death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and prevailing international 24 law. 4 Ina habeaspetition to befiled after the completion ofappellate briefing, appellant will present empirical evidence confirming that section 190.2 as applied, as one would expectgivenits text, fails to genuinely narrow the class of persons eligible for the death penalty. Further, in his habeaspetition, appellant will present empirical evidence demonstrating that, as applied, California’s capital 260 B. APPELLANT’S DEATH PENALTYIS INVALID BECAUSE PENAL CODE§ 190.3(A) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO 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 and freakish 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 “circumstancesof 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 of the crime” must be somefact beyond the elements ofthe crimeitself.”> The Court has allowed extraordinary expansionsoffactor(a), approving reliance uponit to support aggravating factors based upon the defendant’s having sought to conceal evidence three weeksafter the crime,”° or having had a “hatred ofreligion,””’ or threatened witnessesafter his arrest,”* or sentencing schemeculls so overbroada poolofstatutorily death-eligible defendants that an even smaller percentage of the statutorily death-eligible are sentenced to death than was the case underthe capital sentencing schemes condemned in Furman v. Georgia (1972) 408 U.S. 238, and thus that California’s sentencing scheme permits an even greaterrisk of arbitrariness than those schemes and, like those schemes,is unconstitutional. *° People v. Dyer (1988) 45 Cal.3d 26, 78; People v. Adcox (1988) 47 Cal.3d 207, 270; see also CALJIC No.8.88 (2006), par. 3. 2° People v. Walker (1988) 47 Cal.3d 605, 639, fn. 10, cert. den., 494 U.S. 1038 (1990). 27 People v. Nicolaus (1991) 54 Cal.3d 551, 581-582, cert. den., 112 S. Ct. 3040 (1992). *8 People v. Hardy (1992) 2 Cal.4th 86, 204, cert. den., 113 S. Ct. 498. 261 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., Peoplev. Robinson (2005) 37 Cal.4th 592, 644-652, 656-657.) The purpose ofsection 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 (1994) 512 U.S. 967), it has been used in ways so arbitrary and contradictory as to violate both the federal guarantee of due process of law and the Eighth Amendment. Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstanceofthe crime, even those that, from case to case, reflect starkly opposite circumstances. (Tuilaepa, supra, 512 US.at pp. 986-990,dis. opn. of Blackmun, J.) Factor(a) is used to embracefacts which are inevitably present in every homicide. (/bid.) 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 of thescale. In practice, section 190.3’s broad “circumstancesof 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 narrowingprinciplesto 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 (1980) 446 U.S. 420].) Viewing section 190.3 in context of how it is actually used, one seesthat 29 Peoplev. Bittaker (1989) 48 Cal.3d 1046, 1110, fn.35, cert. den. 496 US. 931 (1990). 262 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 SAFEGUARDSTO 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 VIOLATESTHESIXTH, 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 eitherits “special circumstances” section (§ 190.2) or in its sentencing guidelines (§ 190.3). Section 190.3(a) allows prosecutors to argue that every feature of a crime that can be articulated is an acceptable aggravating circumstance, even features that are mutually exclusive. Furthermore, there are none 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 doubtthat 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 ofproofat 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 toall other parts of the law have been banished from the entire 263 process of making the most consequential decision a juror can make — whether or not to condemn a fellow humanto death. 1. Appellant’s Death Verdict Was Not Premised on Findings Beyond a Reasonable Doubt by a UnanimousJury That One or More Aggravating Factors Existed and That These Factors Outweighed Mitigating Factors; His Constitutional Right to Jury Determination Beyond a Reasonable Doubt of All Facts Essential to the Imposition of a Death Penalty Was Thereby Violated. Appellant’s jury was nottold that it had to find any aggravating factortrue beyond a reasonable doubt. The jurors were not told that they neededto agree at all on the presenceof anyparticular 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 as to aggravating factors, or to find beyond a reasonable doubt that 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 (2000) 530 U.S. 466 [hereinafter Apprendi]; Ring v. Arizona (2002) 536 U.S. 584 [hereinafter Ring]; Blakely v. Washington (2004) 542 U.S. 296 [hereinafter Blakely]; and Cunningham v. California (2007) 549 U.S. 270 [hereinafter 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 increasedsentence (other than a prior conviction) are also submitted to the jury and proved beyond a reasonable doubt. (/d. at p. 478.) 264 In Ring, the high court struck down Arizona’s death penalty scheme, which authorized a judge sitting without a jury to sentence a defendant to death if there wasat least one aggravating circumstance and no mitigating circumstances sufficiently substantial to call for leniency. (Id., at 593.) The court acknowledged that in a prior case reviewing Arizona’s capital sentencing law (Walton vy. Arizona (1990) 497 U.S. 639) it had held that aggravating factors were sentencing considerations guiding the choice between life and death, and not elements of the offense. (Id., at 598.) The court foundthat in light ofApprendi, Walton no longer controlled. Any factual finding which increases the possible penalty is the functional equivalent of an element of the offense, regardless of when it must be found or what nomenclature is attached; the Sixth and Fourteenth Amendments require that it be found by a jury beyond a reasonable doubt. In Blakely, the high court consideredthe effect ofApprendi and Ring ina case where the sentencing judge was allowed to impose an “exceptional” sentence outside the normal range uponthe finding of “substantial and compelling reasons.” (Blakely v. Washington, supra, 542 U.S. at 299.) The state of Washingtonset forth illustrative factors that included both aggravating and mitigating circumstances; one of the former was whetherthe defendant’s conduct manifested “deliberate cruelty” to the victim. (/bid.) The supreme court ruled that this procedure wasinvalid because it did not comply with the right to a jurytrial. Ud. at 313.) In reaching this holding, the supremecourt stated that the governing rule since Apprendiis that other than a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum mustbe submitted to the jury and found beyond a reasonable doubt; “the relevant ‘statutory maximum’is not the maximum sentenceajudge may imposeafter finding additional facts, but the 265 maximum he may impose without any additional findings.” (/d. at 304;italics in original.) Thisline 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 onjudicial findings made by a preponderance of the evidence. Booker reiterates the Sixth Amendment requirementthat “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or 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 of Apprendi, and foundthat 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 thelegislature. (Cunninghamv. California, supra, Section III.) In so doing,it explicitly rejected the reasoning used bythis Courtto find that Apprendi and Ring haveno applicationto the penalty phaseofa capitaltrial. 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 standard be used during anypart of the penalty phase of a defendant’s trial, except as to proof ofprior 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) 4 266 Cal.4th 43, 79 [penalty phase determinations are “moral and . .. not factual,” and therefore not “susceptible to a burden-of-proof quantification’’].) California statutory law and jury instructions, however, do require fact- finding before the decision to impose death or a lesser sentenceis finally made. ASa 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” (Peoplev. Farnam (2002) 28 Cal.4th 107, 177), an aggravating factor is anyfact, condition or event attending the commission ofa crime which increasesits guilt or enormity, or adds to its injurious consequences which is above and beyond the elements of the crimeitself-’? (CALJIC No. 8.88; emphasis added.) Thus, before the process of weighing aggravating factors against mitigating factors can begin, the presence of one or more aggravating factors must be found by the jury. 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 determinationsare essential prerequisites to death- *° This Court has acknowledgedthat 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 (1988) 46 Cal.3d 432, 448.) *! ‘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 respect to mitigating circumstances,’ (fn. omitted) we conclude that Ring requires a jury to makethis finding as well: ‘If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — 267 eligibility, but do not mean thatdeath is the inevitable verdict; the jury can still reject death as the appropriate punishment notwithstanding these factual findings.” This Court has repeatedly soughtto reject the applicability ofApprendi and Ring by comparingthe capital sentencing process in California to “a sentencing court’s traditionally discretionary decision to impose one prison sentencerather than another.” (People v. Demetroulias (2006) 39 Cal.4th 1, 41; People v. Dickey (2005) 35 Cal.4th 884, 930; People v. Snow (2003) 30 Cal.4th 43, 126,fn. 32; People v. Prieto (2003) 30 Cal.4th 226, 275.) It has applied precisely the same analysis to fend offApprendi and Blakely in non-capitalcases. In People v. Black (2005) 35 Cal.4th 1238, 1254, this Court held that notwithstanding Apprendi, Blakely, and Booker, a defendant has no constitutional right to a jury finding asto the facts relied on bythetrial 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 incident to 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 Cunninghamthe principle that any fact which exposed a no matter how the State labels it — must be found by a jury beyond a reasonable doubt.’” (/d., 59 P.3d at p. 460) 32 This Court has held that despite the “shall impose” language of section 190.3, even if the jurors determine that aggravating factors outweigh mitigating factors, they maystill imposea sentence oflife in prison. (People v. Allen (1986) 42 Cal.3d 1222, 1276-1277; People v. Brown (Brown I) (1985) 40 Cal.3d 512, 541.) 33 Cunninghamcited 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 268 defendant to a greater potential sentence must be found bya jury to be true beyond a reasonable doubt wasapplied to California’s Determinate Sentencing Law. The high court examined whetheror not the circumstances in aggravation were factual in nature, and concluded they were, after a review of the relevant rules of court. (id., pp. 6-7.) 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,p. 13.) Cunningham then examined this Court’s extensive development of why an 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. 14.) 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 rightis preserved, though somefacts essential to punishment are reserved for determination by the judge, we have said, is the very inquiry Apprendi’s “bright-line rule” wasdesigned 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, at p. 13.) factfinding ‘that traditionally has been performed byajudge.’” (Black, 35 Cal.4th at 1253; Cunningham, supra, at p.8.) 269 In the wake of Cunningham,it is crystal-clear that in determining whetheror not Ring and Apprendi applyto the penalty phaseofa capital case, the sole relevant question is whetheror not there is a requirementthat anyfactualfindings 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 convictedoffirst degree murder with a special circumstanceis death (see section 190.2(a)), Apprendi does not apply. (People v. Anderson (2001) 25 Cal.4th 543, 589.) After Ring, this Court repeated the same analysis: “Because any finding of aggravating factors during the penalty phase does not ‘increase the penalty for a crime beyondthe prescribed statutory maximum’(citation omitted), Ring imposes no new constitutional requirements on California’s penalty phase proceedings.” (People v. Prieto, supra, 30 Cal.4th atp. 263.) This holding is simply wrong. As section 190, subd. (a)** indicates, the maximum penalty for any first degree murder conviction is death. The top of three rungs is obviously the maximum sentence that can be imposed pursuantto the DSL, but Cunningham recognizedthat the middle rung was the most severe penalty that could be imposed by the sentencing judge without further factual findings: “In sum, California's DSL,andthe rules governingits application, direct the sentencing court to start with the middle term, and to move from that term only whenthe court itself finds and places on the record facts — whetherrelated to the offense or the offender — beyond the elements of the charged offense.” (Cunningham, supra, at p. 6.) 34 Section 190, subd. (a) providesas 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 the state prison for a term of 25 yearsto life.” 270 Arizona advanced precisely the same argumentin Ring. It pointed out that a finding of first degree murderin 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 rejectedit: This argument overlooks Apprendi’s instruction that “the relevant inquiry is one not of form, but of effect.” 530 USS., at 494, 120 S.Ct. 2348. In effect, “the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury’s guilty verdict.” Ibid.; see 200 Ariz., at 279, 25 P.3d, at 1151. (Ring, 124 S.Ct. at 2431.) Just as when a defendantis convicted of first degree murder in Arizona, a California conviction offirst degree murder, even with a finding of one or more special circumstances, “authorizes a maximum penalty of death only in a formal sense.” (Ring, supra, 530 US. at 604.) Section 190, subd. (a) providesthat the punishmentfor first degree murder is 25 yearsto life, life without possibility of parole (““LWOP”), or death; the penalty to be applied “shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4 and 190.5.” Neither LWOPnordeath can be imposed unless 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 circumstances substantially outweigh the mitigating circumstances. (Section 190.3; CALJIC 8.88 (7" ed., 2003).) “Ifa 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 271 a reasonable doubt.” (Ring, 530 U.S.at 604.) In Blakely, the high court madeit clear that, as Justice Breyer complained in dissent, “a jury mustfind, notonly the facts that make up the crime of whichthe offenderis charged, butalso all (punishment-increasing) facts about the way in whichthe offendercarried outthat crime.” (/d., 124 S.Ct. at 2551; emphasis in original.) Theissue of the Sixth Amendment’sapplicability 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 end of 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 mustfirst decide whether any aggravating circumstances, as defined by section 190.3 andthe standard penalty phase instructions, exist in the case before it. If so, the jury then weighs any such factors against the proffered mitigation. A determinationthat the aggravating factors substantially outweigh the mitigating factors — a prerequisite to imposition of the death sentence — is the functional equivalent of an elementof 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, 107 S.W.3d 253 (Mo.2003); Woldtv. People, 64 P.3d 256 (Colo.2003); Johnson v. State, 59 P.3d 450 (Nev. 2002).*°) 35 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, 272 No greater interest is ever at stake than in the penalty phaseofa capital case. (Monge v. California (1998) 524 U2.S. 721, 732 [“the death penalty is unique in its severity andits finality”].)°° As the high court stated in Ring, supra, 122 S.Ct. at pp. 2432, 2443: Capital defendants, no less than non-capital defendants, we conclude,are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. . .. The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminishedif it encompassedthe fact-finding necessary to increase a defendant’s sentence by two years, but not the fact- finding necessary to put him to death. Thelast step of California’s capital sentencing procedure, the decision whether to 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 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 circumstancessubstantially outweigh mitigating circumstances, since both findings are essential predicates for a sentence of death). %6 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: “///n a capital sentencingproceeding, as in a criminal trial, ‘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.’ ([Bullington v. Missouri (1981) 451 U.S. 430,. 441 (quoting Addington v. Texas, 441 U.S. 418, 423-424, 60 L.Ed.2d 323, 99 S.Ct. 1804 (1979).)” (Mongev. California, supra, 524 U.S. at p. 732 (emphasis added).) 273 death to be uncertain, undefined, and subject to dispute not only as to their significance, but as to their accuracy. This Court’s refusal to accept the applicability of Ring to the eligibility components of California’s penalty phase violates the Sixth, Eighth, and Fourteenth Amendments to 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 Imposea 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 importancefully as greatas 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 thoserights.” (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 proofrepresents the obligation ofa 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 Clause of the Fifth and Fourteenth Amendment. (/n re Winship (1970) 397 U.S. 358, 364.) In capital cases “the sentencing process, as well asthetrial itself, must satisfy the requirements of the Due Process Clause.” (Gardnerv. 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 phaseof a capital trial, whenlife is at 274 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 upon the significance of what is at stake and the social goal of reducing the likelihood of erroneous results. (Winship, supra, 397 U.S.at pp. 363- 364; see also Addington v. Texas (1979) 441 U.S. 418, 423; Santosky v. Kramer (1982) 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 ofjuvenile delinquency); People v. Feagley (1975) 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 (commitment as narcotic addict); Conservatorship ofRoulet (1979) 23 Cal.3d 219 (appointmentof conservator).) The decision to take a person’s life must be made undernoless demanding a standard. In Santosky, supra, the U.S. Supreme Court reasoned: [I]n any given proceeding, the minimum standard of proof tolerated by the due process requirementreflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants. .... When the State brings a criminal action to deny a defendant liberty orlife, . . . “the interests of the defendant are of such magnitudethat 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 275 doubt” standard bespeaks the ‘weight and gravity’ of the private interest affected [citation omitted], society’s interest in avoiding erroneous convictions, 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 valuesofthe [jury].” (Santosky, supra, 455 U.S. at p. 763.) Imposition of a burden of proof beyond a reasonable doubt can be effective in reducingthis risk oferror, since that standard has long provenits worth as “a prime instrumentfor reducing the risk of convictionsresting on factual error.” (Winship, supra, 397 U.S.at p. 363.) Adoption of a reasonable doubt standard would not deprivethe State of the powerto impose capital punishment; it would merely serve to maximize “reliability in the determination that death is the appropriate punishment in a specific case.” (Woodson, supra, 428 U.S. at p. 305.) The only risk of error suffered by the State underthestricter burden of persuasion would bethe possibility that a defendant, otherwise deserving of being put to death, would instead be confined in 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 criminal trial, ‘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.’ ([Bullington v. Missouri,] 451 U.S.at p. 441 (quoting Addington v. Texas, 441 U.S. 418, 423-424, 60 L.Ed.2d 323, 99 S.Ct. 1804 (1979).)” (Mongev. California, supra, 524 U.S. at p. 732 (emphasis 276 added).) The sentencer of a person facing the death penalty is required by the due process and Eighth Amendmentconstitutional guarantees to be convinced beyond a reasonable doubt not only are the factual bases for its decision true, but that death is the appropriate sentence. 3. California Law Violates the Sixth, Eighth and Fourteenth Amendmentsto 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 Amendmentrights 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 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 Townsend v. 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 (1992) 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 whobelieves that he or she was improperly denied parole must proceed via a petition for writ of habeas corpus andis required to allege with particularity the circumstances constituting the State’s wrongful conduct and show prejudice flowing from that conduct. (/n re Sturm (1974) 11 277 Cal.3d 258.) The parole board is therefore requiredto 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 sameanalysis applies to the far graver decision to put someone to 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, supra, 501 U.S. at p. 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 reasons for the penalty chosen. Written findingsare essential for a meaningful review ofthe 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 atp. 79), its basis can be, and should be, articulated. 37 A determinationofparole 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 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.) 278 The importance of written findings is recognized throughoutthis 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 section 190.3 is afforded the protections guaranteed by the Sixth Amendmentrightto trial by jury. (See Section C.1, ante.) There are no other procedural protections in California’s death penalty system that would somehow compensate for the unreliability inevitably produced by the failure to require an articulation of the reasons for imposing death. (See Kansas v. Marsh, supra [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 doubtthe 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 right to 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 Impositions 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 commonly utilized mechanism for helping to ensure reliability and proportionality in capital sentencing is comparative proportionality review — a procedural safeguard this Court has eschewed. In Pulley v. Harris (1984) 465 U.S. 37, 51 (emphasis added), the high 279 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 solacking in other checks on arbitrariness that it would notpass constitutional muster without comparative proportionality review.” California’s 1978 death penalty statute, as drafted and as construed bythis 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”thelist 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 we haveseen,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 A of this Argument, ante.) Thestatute lacks numerousother procedural safeguards commonlyutilized in other capital sentencingjurisdictions (see Section C, ante), and the statute’s principal penalty phase sentencing factor has itself proved to be an invitation to arbitrary and capricious sentencing (see Section B, ante). Viewing the lack of comparative proportionality review in the context of the entire California sentencing scheme (see Kansas v. Marsh, supra), 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 therelative proportionality of the sentence imposed,i.e., inter-case proportionality review. 280 (See People v. Fierro (1991) 1 Cal.4th 173, 253.) The statute also does not forbid it. The prohibition on the consideration of any evidence showing that death sentencesare not being charged or imposed on similarly situated defendantsis strictly the creation of this Court. (See, e.g., People v. Marshall (1990) 50 Cal.3d 907, 946-947.) This Court’s categorical refusal to engage in inter-case proportionality review nowviolates 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 CriminalActivity Could Not Constitutionally Serve as a Factor in Aggravation Unless Found to Be True Beyond a Reasonable Doubt by a UnanimousJury. Anyuse of unadjudicated criminal activity by the jury as an aggravating circumstance undersection 190.3, factor (b), violates due process andthe Fifth, Sixth, Eighth, and Fourteenth Amendments, rendering a death sentence unreliable. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578; State v. Bobo (Tenn. 1987) 727 S.W.2d 945 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 Amendment and the jury trial guarantee of the Sixth Amendment,the findings prerequisite to a sentence of death must be made beyond a reasonable doubt by a 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 an instruction generally provided for under California’s sentencing scheme. 281 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. Theinclusionin 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 (1988) 486 U.S. 367; Lockett v. Ohio (1978) 438 U.S. 586.) 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 relevantsolely as possible mitigators (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v. Edelbacher (1989) 47 Cal.3d 983, 1034). The jury, however, wasleft free to concludethat 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/orirrational aggravating factors, thereby precludingthereliable, individualized capital sentencing determination required by the Eighth and Fourteenth Amendments. (Woodson v. North Carolina (1976) 428 U.S. 280, 304; Zant v. Stephens (1983) 462 U.S. 862, 879.) Further, the jury wasalsoleft free to aggravate a sentence uponthebasis of an affirmative answerto one ofthese questions, and thus, to convert mitigating evidence (for example, evidence establishing a defendant’s mental illness or defect) into a reason to aggravate a sentence,in violation of both state law and the Eighth and Fourteenth Amendments. 282 This Court has repeatedly rejected the argumentthat a jury would apply factors meant to be only mitigating as aggravating factors weighing towards a sentence of death: 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 upon the basis of nonexistent or irrational 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 (1995) 11 Cal.4th 786, 886-887, 47 Cal.Rptr.2d 219, 905 P.2d 1305.) Indeed,“no reasonablejuror could be misled by the language of section 190.3 concerning the relative aggravating or mitigating nature ofthe variousfactors.” (Peoplev. Arias, supra, 13 Cal.4th at p. 188, 51 Cal.Rptr.2d 770, 913 P.2d 980.) (People v. Morrison (2004) 34 Cal.4th 698, 730; emphasis added.) This assertion is demonstrably false. Within the Morrison caseitself there lies evidence to 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 recognized that the trial court so erred, but foundthe error to be harmless. (/bid.) 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 (1997) 15 Cal.4th 312, 423-424.) The very real possibility that appellant’s jury aggravated his sentence upon the basis of nonstatutory aggravation deprived appellant of an important state-law 283 generated procedural safeguardandliberty interest — the right not to be sentenced to death except upon the basis ofstatutory 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 (1980) 447 U.S.343; Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300 (holding that Idaho law specifying manner in which aggravating and mitigating circumstancesare to be weighedcreated liberty interest protected under the Due Process Clause of the Fourteenth Amendment); and Campbell v. Blodgett (9th Cir. 1993) 997 F.2d 512, 522 [same analysis applied to state of Washington]. It is thus likely that appellant’s jury aggravated his sentence upon the basis of what were, as a matter of state law, non-existent factors and did so believing that the State — as represented bythetrial court — had identified them as potential aggravating factors supporting a sentence of death. This violatednotonlystate 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 because of differing constructions of the CALJIC pattern instruction. Different defendants, appearing before different juries, will be sentenced on the basis of different legal standards. “Capital punishment [must] be imposedfairly, and with reasonable consistency, or not at all.” (Eddings, supra, 455 U.S. at p. 112.) Whethera capital sentenceis to be imposed cannot be permitted to vary from case to case according to different juries’ understandings of how manyfactorson statutorylist the law permits them to weigh on death’s side of the scale. 284 XU THE CALIFORNIA SENTENCING SCHEME VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION BY DENYING PROCEDURAL SAFEGUARDSTO CAPITAL DEFENDANTS WHICH ARE AFFORDED TO NON-CAPITAL DEFENDANTS. Asnoted in the preceding arguments, the U.S. Supreme Court has repeatedly directed that a greater degree of reliability 1s required when deathis to be imposedandthat 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. “Personalliberty is a fundamental interest, second only tolife 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 “adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny.” (Westbrook v. Milahy (1970) 2 Cal.3d 765, 784- 785.) A state may not create a classification scheme which affects a fundamental interest without showingthat 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 purportedjustification by the State of the discrepant treatment be even more compelling becausethe interest at stake is not simply liberty, but life itself. 285 In Prieto,*® as in Snow,” this Court analogized the process of determining whether to impose death to a sentencing court’s traditionally discretionary decision to impose oneprison sentencerather than another. (See also, People v. Demetrulias, supra, 39 Cal.4th at p. 41.) Howeverapt or inapt the analogy, California is in the unique position of giving persons sentenced to death significantly fewer procedural protections than a person being sentencedto prison for receiving stolen property, or possessing cocaine. Anenhancingallegation in a California non-capital case must be foundtrue unanimously, and beyond a reasonable doubt. (See, e.g., sections 1158, 1158a.) Whena California judge is considering which sentence is appropriate in a non- capital case, the decision is governed by court rules. California Rules of Court, rule 4.42, subd. (e) provides: “The reasons for selecting the upper or lower term shall be stated orally on the record, andshall include a concise statement ofthe ultimate facts which the court deemedto constitute circumstances in aggravation or mitigation justifying the term selected.”*° In a capital sentencing context, however, there is no burden ofproof except as to other-crime aggravators, and the jurors need not agree on what factsare true, or important, or what aggravating circumstances apply. (See Sections C.1-C.2, 38 “Asexplained 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 oneprison sentence rather than another.” (Prieto, supra, 30 Cal.4th at p. 275; emphasis added.) “The final step in California capital sentencingis 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 sentence rather than another.” (Snow, supra, 30 Cal.4th at p. 126, fn. 3; emphasis added.) “© In light of the Supreme Court’s decision in Cunningham, supra,if the basic structure of the DSL isretained, the findings of aggravating circumstances supporting imposition of the upper term will have to be made beyond a reasonable doubt by a unanimousjury. 286 ante.) And unlike proceedings in most states where death is a sentencing option, or in which personsare sentenced for non-capital crimes in California, no reasons for a death sentence need be provided. (See Section C.3, ante.) These discrepancies are skewedagainst persons subject to loss of life; they violate equal protection of the laws.”’ (Bush v. Gore (2000) 531 U.S.98, 121 S.Ct. 525, 530.) To provide greater protection to non-capital defendants than to capital defendants violates the due process, equal protection, and cruel and unusual punishmentclauses of the Eighth and Fourteenth Amendments. (See, e.g., Mills v. Maryland, supra, 486 U.S.at p. 374; Myers v. Yist (9th Cir. 1990) 897 F.2d 417, 421; Ring v. Arizona, supra.) XIV. 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 AMENDMENTSTO THE UNITED STATES CONSTITUTION. The United States stands as one of a small numberof nations 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. Confinement339, 366.) The nonuseof the death penalty, or its limitation to “exceptional crimes such as treason” — as opposedto its use as regular punishment is particularly uniform in *! Although Ring hinged on the 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 diminishedif it encompassed the factfinding necessary to increase a defendant’s sentence by twoyears, but not the factfinding necessary to put him to death.” (Ring, supra, 536 U.S.at p. 609.) 287 the nations of Western Europe. (See, e.g., Stanford v. Kentucky (1989) 492 U.S. 361, 389 [dis. opn. of Brennan,J.]; Thompson v. Oklahoma (1988) 487 U.S. 815, [plur. opn. of Stevens,J.].) Indeed,a// nations of Western Europe have now abolished the death penalty. (Amnesty International, “The Death Penalty: List of Abolitionist and Retentionist Countries” (Nov. 24, 2006), on Amnesty International website [www.amnesty.org].) Although this country is not bound by the laws of any other sovereignty in its administration of our criminal justice system,it has relied from its beginning on the customs andpractices of other parts of the world to inform our understanding. “When the United States became an independentnation, they became,to use the language of Chancellor Kent, ‘subject to that system of rules which reason, morality, and custom had established amongthecivilized nations of Europe as their public law.’” (1 Kent’s Commentaries 1, quoted in Miller v. United States (1871) 78 U.S. [11 Wall.] 268, 315 [20 L.Ed. 135] [dis. opn. of Field, J.]; Hiltonv. Guyot, supra, 159 U.S.at p. 227; Martin v. Waddell’s Lessee (1842) 41 U.S. [16 Pet.] 367, 409 [10 L.Ed. 997].) Dueprocessis nota 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 community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” (Atkins v. Virginia, supra, 536 U.S.at p. 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 regularpunishment for substantial numbers of crimes — as opposed to extraordinary punishmentfor 288 extraordinary crimes — is. Nations in the Western world no longer accept it. 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, inasmuch as the law of nations now recognizes the impropriety of capital punishmentas regular punishment, it is unconstitutional in this country inasmuchas international law is a part of our law. (Hilton v. Guyot (1895) 159 U.S. 113, 227; see also Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. [18 How.] 110, 112 [15 L.Ed. 311]].) Categories of crimes that particularly warrant a close comparison with actual practices in other cases include the imposition of the death penalty for felony-murdersor other non-intentional killings, and single-victim homicides. See Article VI, Section 2 of the International Covenant on Civil and Political Rights, whichlimits the death penalty to only “the most serious crimes.” Categories of criminals that warrant such a 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 scheme in California and death’s use as regular punishmentviolate both international law and the Eighth and Fourteenth Amendments. Appellant’s death sentence should be set aside. “See Kozinski and Gallagher, “Death: The Ultimate Run-On Sentence,” 46 Case W. Res. L.Rev. 1, 30 (1995). 289 XV THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS UNDER THE FEDERAL AND STATE CONSTITUTIONS, WHEN IT PERMITTED APPELLANT TO BE CONVICTED BASED ON ERRORS THAT CUMULATIVELY AND INDIVIDUALLY, DENIED HIM A FAIR TRIAL As the foregoing arguments demonstrate, the trial court made majorlegal errors in this case, any one of which calls out for reversal. When the errors are viewed together, however, it also becomes clear that each error was amplified by every other error, so that the cumulative effect was greater than the sum of the parts. A. Governing Law Regarding Cumulative Error and Prejudice In Chambers v. Mississippi (1973) 410 U.S. 284, the Supreme Court held that the combined effect of multiple trial court errors violates due process where it renders the resulting criminal trial fundamentally unfair. In Chambers, the high court concluded that the cumulative effect of individual errors “denied [the defendant] a trial in accord with traditional and fundamental standards of due process” and “deprived [him] of a fair trial”. (Chambers, supra, at pp. 298,302- 303.) The cumulative effect of multiple errors can violate due process even where no single error rises to the level of a constitutional violation or would independently warrant reversal. (Chambers, supra, at p. 290, fn. 3; Parle v. Runnels 9" Cir. 2007) 505 F.3d 922.) “[T]he Supreme Court has clearly established that the combined effect of multiple trial errors may give rise to a due process violation if it renders a trial fundamentally unfair, even where each error considered individually would not require reversal. [Citations]” (Parle v. Runnels, supra, 505 F.3d. at p. 926, citing Chambers, supra, 410 U.S.at p. 290, fn. 3, 298, 302-303 and Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) 290 In Chambers, state evidentiary rules required exclusion of a recanted confession of another man, McDonald, who wasbelieved to be the actual shooter; forbade cross-examination of McDonald, who wastechnically Chambers’ witness; and also required exclusion of the hearsay testimony of three witnesses that McDonald had confessed to them. (Chambers, supra, at pp. 287-293) Under these circumstances, the Supreme Court ruled that the combined effect of the trial court’s rulings deprived Chambers of a “trial in accord with traditional and fundamental standards of due process.” (/d. at p. 302.) In Parle v. Runnels, supra, 505 F.3d at p. 922, the court analyzed the cumulative error analysis and observed, “Like the evidence excluded in Chambers, this wrongfully admitted and excluded evidence went to the heart of the central issue in the case. In Chambers, the excluded evidence pertained to the identity of the shooter-Chambers's primary defense-while, here, the erroneously admitted and excluded evidence pertained to the only relevant issue (and Parle's only defense): Parle's state of mind at the time of the crime.” (Parle v. Runnels, supra, at p. 932.) Accordingly a due process violation occurs pursuant to Chambers and Parle when several errors combine to unfairly impugn the central issue raised by the defense. The combination of errors in this case, like those in Chambers, undermine confidence in the reliability of the jury’s determination that appellant should be sentenced to death. The jury’s task pursuant to Penal Code section 190.3 is to “determine whether the penalty shall be death or confinementin state prison for a term of life without the possibility of parole” based. inter alia, on an evaluation of aggravating and mitigating circumstances encompassing the circumstances of the crime, mental and/or emotional impairment of the accused, and any other extenuating circumstance that is not a legal excuse for the crime. (Pen. Code, section 190.3) The court committed multiple errors which interacted to make the sum of the errors greater than each part, gutting the defense case and deprived the jury of 291 critical and admissible evidence in mitigation, which in turn skewedits duty to evaluate and balance mitigating and aggravating factors. B. The Court Neutralized the Defense Case in Mitigation By Excluding Evidence that Raised a Lingering Doubtasto Whether Appellant Committed the Prior Attack on Melissa and Refusing to Excise the Portion of CALJIC 8.85 That Allowed Consideration of Mental or Emotional Disturbance Onlyifit Was “Extreme.” The defense proffered evidence addressing the issue of lingering doubt as to whether appellant actually committed the prior attack on Melissa, the foundation of the rape and/or lewd conduct special circumstances. That evidence encompassed empirical research about the phenomenon of false confessions, which experts see regularly in law enforcementsettings but of which lay people are unaware; actual percipient testimony from the district attorney about the process of obtaining appellant’s confession to demonstrate the risk that he testified falsely, and why; and evidence about an unknown third party who had entered another home in the neighborhood several years earlier and frightened a homeowner and her family. By refusing to admit this evidence, the trial court eliminated any possibility that the jury deliberate about lingering doubtor evaluate mitigation vis-a-vis the crimes charged. The trial court left the defense to present in mitigation a recitation of appellant’s social and educational history, including a history of abuse, learning problems, hyperactivity, and unspecified mental and/or emotional impairment. The jury’s evaluation of that remaining portion of the defense was neutralized because of the court’s instruction with CALJIC 8.85. The portion of CALJIC 8.85 that required the jury to consider only “extreme” mental or emotional disturbance (factor (d)) permitted the jury incorrectly to review appellant’s life history with an eye towards considering it as mitigation only if it was in fact extreme. Thus the fact that appellant probably was an emotionally disturbed individual was not 292 enough. The instruction had the effect of leading the jury to minimize appellant’s terrible childhood because it was “not that bad” and he was“not that disturbed.” C. The Court Amplified the Prosecution Case In Aggravation by Allowing Victim Impact Evidence That Overrode Emotion and Impaired the Jury’s Ability to Reach a Reasoned Moral Response Whether to Spare Appellant’s Life, and Permitting the Prosecution to Engage in Improper Argument that Demonized the Defense and Mischaracterized the Evidence Against Appellant Balanced against what little was left of the defense case was the prosecution’s victim impact presentation of the series of photographs of Melissa’s life, narrated by her father, mother and friends. The prosecution case went far beyond the purpose of victim impact evidence, having no effect than provoking jury emotion and subjective response. If one or more jurors had any lingering doubt about whether appellant confessed truthfully about wanting to sexually assault Melissa, that doubt was unfairly neutralized by the photographic evidence depicting her life and the abject sorrow of those testifying about her. (See again dissents to denial of certiorari in Kelly v. California, supra, 555 U.S. ) The prosecution unfairly reinforced its penalty phase case — which was solely based on victim impact evidence — by demonizing the defense, arguing aggravating facts that were not established, vouching for prosecution witnesses who should have beenscrutinized for generating appellant’s false confession, and unfairly playing to public passion and sentiment. D. The Court Instructed the Jury With CALJIC No. 8.88 So That It Weighed the Aggravating Evidence of Victim Impact and Crime Circumstances More Heavily than Mitigating Evidence The jury entered deliberations with almost no case in mitigation and an emotional, compelling case in aggravation, in the form of the victim impact evidence and the prosecutor’s impassioned andplea to kill appellant for what he 293 did. (See 35RT 5528-5567; 36RT 5598-5622) CALJIC No.8.88 finished off the defense. It distorted the jury’s evaluation of penalty in favor of the aggravating factors — which already were presented more prominently than the meager remains of the defense mitigation case — by telling the jury to impose the death penalty if the aggravating circumstances were “so substantial” as to outweigh what wasleft of mitigation. It also did nottell the jury that it could imposelife. The weighing process wasirreparably distorted in favor of death. E. The Record of Jury Deliberations Reveals Multiple Close Case Indicators as Well as Jury Misconduct Several indicators in the penalty phase record raise a compelling inference that the jury struggled with the penalty determination and would have reached a more favorable result had the mitigation portion of the defense case not been so unfairly circumscribed and the aggravating circumstances so highlighted as set forth above: The jury deliberated for three days, was deadlockedat one pointafter a day of deliberations, and broke into factions that may have encompassed misconduct on the part of some jurors. (13CT 3662-3664; 36RT 5688-5700) Based on the foregoing, there is a serious question as to whether the verdict reached by the jury was a reliable reflection of what it actually believed. Based on the foregoing and the prejudice arguments set forth as to each individual assignment of error, ante., cumulatively and individually, the trial court’s errors unfairly prejudiced appellant’s defense in violation of due process. Reversal is required. (Chambers v. Mississippi, supra, 410 U.S. at pp. 298,302-303.) 294 CONCLUSION For the reasonsset forth herein, it is respectfully submitted on behalf of defendant and appellant Daniel Andrew Linton that the judgment of conviction and sentence of death must be reversed. Dated: June 10, 2009 Respectfully submitted, DIANE E. BERLEY Attorney by Appointmentof the Supreme Court For Defendant and Appellant Daniel Andrew Linton 295 CERTIFICATE OF WORD COUNT Rule 8.630, subdivision (b)(1), California Rules of Court, states that an appellant's openingbrief in an appeal taken from a judgment of death produced on a computer must not exceed 95,200 words. The tables, the certificate of word count required by the rule, and any attachment permitted under Rule 8.204, subdivision (d), are excluded from the word count limit. Pursuant to Rule 8.630, subdivision (b), and in reliance upon Microsoft Office Word 2007 software which was used to prepare this document, J certify that the word count ofthis brief is 84,724 words. Dated: June 10, 2009 Respectfully submitted, DIANE E. BERLEY Attorney by Appointment of the Supreme Court For Defendant and Appellant Daniel Andrew Linton 296 PROOF OF SERVICE BY MAIL State of California ) ) County of Los Angeles ) I am employed in the County aforesaid; I am overthe age of eighteen (18) years and not a party to the within action; my business address is 6520 Platt Avenue, PMB 834, WestHills, California 91307-3218. On June 10, 2009, I served the within Appellant’s Opening Brief on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at West Hills, California, addressed as follows: Clerk, California Supreme Court Riverside County Public Defender 350 McAllister Street 4200 Orange Street San Francisco, CA 94102 Riverside, CA 92501 Clerk, Riverside County Superior Court} California Appellate Project For: Hon. Gordon R. Burkhart San Francisco 4050 MainStreet 101 2™Street, Suite 600 Riverside, CA 92501-3703 San Francisco, CA 94105 Attn: Scott Kauffman, Staff Departmentof Justice Attorney Attorney General's Office 110 West “A”Street, Ste. 1100 Daniel Andrew Linton, #P44800 San Diego, CA 92101 Post Office Box P-44800 San Quentin, CA 94974 Riverside County District Attorney 4075 Main Street Riverside, CA 92501 Attn: William Mitchell, Deputy I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day, with postage thereon fully prepaid at West Hills, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury that the foregoing is true and correct and that this Proof of Service was executed at West Hills, California, on June 10, 2009. DIANE E. BERLEY 297
