PEOPLE v. DeBOSE (DONALD RAY)

Appellant’s Opening Brief

Cal.August 27, 2007

GUPREMECOURTCOPY «= | COpy IN THE SUPREME COURTOFTHESTATE OF CALIFORNIA [ THE PEOPLE OF THE STATE ) Case No. S080837 OF CALIFORNIA, ) (Los Angeles Superior | ) Court No. YA035529) ) Plaintiff and Respondent, ) | . SUPREME COURT ) FILED Vv. ) - ) “AUG 2 7 2007 DONALD RAY DEBOSE,JR.., ) , ) Frederick K. Ohineh Clerk Defendant and Appellant. ) Deputy ) AUTOMATIC APPEAL FROM THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES HONORABLEJAMESR. BRANDLIN, JUDGE, PRESIDING ¢ APPELLANT’S OPENING BRIEF RICHARD P. SIREF Attorney at Law State Bar No. 89079 615 “C”Street No. 232 San Diego, CA 92101 - Telephone: (619) 200-2771 Attorney for Defendant and Appellant DONALD RAY DEBOSE,JR. Under Appointment by the Supreme Court of California i eRnnapgaA,a. P 4 PENALTY TOPICAL INDEX TOPICAL INDEX ooo ecceeeecceeeceeceeeeceeeceeeeeseesaeescseenseeseesscecsscesaeessscssccnseeesseseteestees 1-X TABLE OF AUTHORITIES 000... ecceeccccccceeceeeseenecesseeccusecesessaseeesseesesssserececseessnaeees XI-XXXIH1 INTRODUCTION...000. occ een eceeceececeesceceenseeecesseeecsseeseesesecseaaeevecueeeeseveneenseeeaeeeeaeecsteasenaee PROCEDURALHISTORYooo.eeececceceeneeeseeeseeseeseeesseeeseeeeesaseesecessecssersecsseesssesensecseerseens 2 STATEMENTOF FACTSooo cccceccceccecsceceececeseeesceeecseeeeseesescecetseecsaeceseeeceecsessssessseesssesseace 5 A. GUILT PHASE oooceccenceeeeneeeseesseeseeeeeeceeeeaeeeeeseecsseeeseessevenseesecesseecsstenteneees 5 1. The Prosecution’sOF.veveeeeeeeeeees 5 a. SUMMMIMALY 00... eeeeeecceececececeeseeseeeesceeeeuaceessecssecssccseeessceeesessseeseseaseate 5 b. The Kim Murder 000.0... ccceeeeccesceceeeesseeeseseessaecesecssecesessseessesenseseseenees 7 1.) The Crime SCONCoe. eeeeecceeeseceesssececenseccsseecnseccsesesesesesesestenes 7 2.) Willard Lewis’s Testimony . eceeeeeeneeeessceteetteseessuseeeeceseees 1] 3.) Forensic Evidence...........ccccccccececsceeeseteseeeesseeeseseesetecnseeeans 15 a.) Alleged Sexual Assault and Autopsy Evidence ...ccceccecescscsesssssteseesescecesesceseseneneeenneee secseeee 5 b.) Casino Videotapes ..........ccccccceccecesecesccseccnseceseeenseeens 17 C. The Dassopoulos Attempted Murder and Robbery............0.0..0000. 2] d. Subsequent Investigation and Arrest of Appellant .....0....000000000. 26 2. The Defense ........ ce cececccccececeencceseneeseceseceeeesseeneecseeceesessesscnsesseessesssevsntseeaey 28 a. Impeachment of Willard Lewis..........ccccccccccccsccesseesecesseeeseesseenes 28 b. Defense Expert Testimony Rebutting Sexual Assault .0...00000000000.. 33 B. I/// [T/] [If] //// f/f] C. Appellant’s Alibi...eceeeeneeesseecterenssereseneaeensesaseteateenedeneeaes 33 d. Co-Defendant Flagg’s ANDI...ccccecccceccsscesccnsceesesecssesseeasees 35 3. Prosecution’s Rebuttal 0.00... ecceeccesessessescsecseeeccsceeecsscasesscsesssaceeeeseearens 36 PENALTY PHASE0ceecccccccecceneeeseesseesscnesesssssssensevneersseeeaeenesaeeanenoneceeensesens 37 1. The Prosecution’s Case ......e.ccccccccscescsecsesscscsecscssesssvecssssassevsctssssevseeatenseaes 37 a. Victim Impact Evidence... eeeeeceeseceeseeseesceseeescscessssecsseseevesevaees 37 b. Aggravating Evidence Against Appellant cetteseceessteetensaeeesess 40 1.) Jail Incident.0......cccccceccccccsccsecescesessecesevesessetaevenensa40 2.) Gun Incident «0.0... cceeeeeeeeeeseeeceteeetteseseseneseseneeaeeteess 42 C. Aggravating Evidence Against Co-Defendant Flagg.........0.0.... 42 d. Aggravating Evidence Against Co-Defendant Higgins .......0.......... 43 2. Defense Mitigation .........cccccccccccecsccsecesessecsceecesscecseveressevsuceseuseesectuecaseens 44 a. Appellant’s Mitigation 2.0.0... cecccceccccscesccscsssesesscescestsscaevereaevaeeaes 44 b. Co-Defendant Flagg’s Mitigation ......0..00.0ccc eee eeceseeeeeeses47 C. Co-Defendant Higgins Mitigation occcccccccccccccssssssssesseee beteeseeeeesens 48 u GUILT PHASE ERRORS I. THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE SPECIAL CIRCUMSTANCE OF ARSON MURDER0ooe eco cc ccc ccccecccccssscececcscececccsceseseccuesecesscnccsusececuvscessuscaseceuceesecess 49 A. Introduction .......c..cccececccceseseeseececeecccccccucevsceeececcescesuavsescesseeecesessucecersecueeceses 49 B. The Standard of Review .................006ecccceueceecccaustesceececeseeessssuecensceeeceuseaners 49 C. The Car was Not a Dwelling for Purposes of the Arson-Murder Special Circumstance ..........ccecceeceesseessscesscecsseeseecessessceeseeeeee 50 D. Respondent Has Previously Conceded that the Arson-Murder Special Circumstance Does not Apply under the Facts of this Case and Thus is Estopped from Arguing its Application in Appellant’s Case........ccccccccccccccssccesccenseseeeeesssnseecseesees 52 E. Appellant’s Verdict Must be Reversed .......eccececesceeceesceceeceeeeeeeseeeseeeeeeseesaceseeseseccaeeecseeenteeeseeesseccseeeseesreens 54 II. THE MERGER DOCTRINE PROHIBITS THE APPLICATION OF THE SPECIAL CIRCUMSTANCE OF ARSON-MURDERIN APPELLANT?’S CASE 0. .eciceccccseeseceseseeeeeseeseenseeeseessecesesesaeeessecesasessasesssesaseteeness 56 A. Introduction........cceeeceeeesececeeceesedecseeesseceseecccseeessecesusssesssecessceesensevsseseeesss 56 B. The Merger Doctrine Prohibits Application of the Arson-Murder Special Circumstancein Appellant’s Case ........ccceeccssescccsceseseesseesceescecsseesseecssecssecsecesssersuessssesecsteense 57 C. Appellant’s Death Verdict Must be Reversed ...........ccccccceeecceceeesceeeeeseeees 62 I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHENIT DISMISSED JUROR NUMBER TWO ooooiiecccccccceceecesseneeesesseeseesaeeseesaccaesceccesecesecnsecuseeseensessenee 62 A. Factual Background ..00..... ie ceeccccceeeeeeeeesceceeenseesecesseeesscersesenseerseeeessessssseness 62 lil IV. B. Dismissal of Juror Number Two was an Abuse of Discretion Under Penal Code Section 1089 ......0....cccc ccc cceccccccccessessscssccceserees 69 C. Dismissal of Juror Number Two Violated Appellant’s Rights Under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution....000.0000000cccceceseeeeescereeees 76 Dz The Error was Prejudicial sssssssssasssassssvesesssessseseeseesssssssssssisesssssssssssessesssseeesse 80 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING WILLARD LEWIS TO TESTIFY THAT HE HEARD CO-DEFENDANT AT THE SCENE IDENTIFY APPELLANT BY NAME....00...0cccccccccceccesscseesesseeesereees 81 A. Factual Background 000... eccceccessecesteceesecesseeesssessccesssscessasscsaseesseversseenseaaes 81 B. Standard Of REVICW..........ccccsceeseeseessesseesstseceseeseseceseeccsseseecsscaesessessssscaserseess 81 C, This Testimony Violated the Hearsay Rule ..........00.00ccccecceseseecesceeceeeeeees 82 D. This Testimony Violated Appellant’s Rights Under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution ........cccccceccceccescsecsecsseesecestestsessseseesenseaeeeaes 83 E. The Error was Prejudicial ....0..0.ccccsscccsscsssssesssssssssessesvsseseceessessceeaesseseeseaeen 92 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO GIVE A CAUTIONARY INSTRUCTION TO THE JURY REGARDING THE CO-DEFENDANT’S STATEMENT IDENTIFYING APPELLANT.00....ceeeccceseessescesesseesessesteeeeaeseseeaesescscsssesenssasesenseese 95 A. Introduction ......0..... ccc eeseseseecececcccsesssssesececseeceescetssesccceeseseecsesecececcececcceeersuteese 95 B. The Trial Court had a Sua Sponte Duty to Give a Cautionary InstructiOn..........ccccccccsccesccessceseeesccescsseccsnsecseccusssssseceucesecnserseveass 99 C. Failure to Instruct Violated Appellant’s Rights Under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution and was Prejudicial ETOD0... eeeeceeeeseeeeeeeeeeeeseeesSe eeveeeensseceeeneeecceeeeeesaeeeseceeessuaseeseessseseesssesessteesseese 102 iV VI. VII. I//] IIT] //// //// THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY INSTRUCTING THE JURY THAT A ROBBERYIS STILL IN PROGRESS FOR PURPOSES OF THE FELONY MURDER RULE AS LONG AS THE PURSUERS ARE ATTEMPTING TO CAPTURE THE ROBBER OR REGAIN THE STOLEN PROPERTY AND HAVE CONTINUED CONTROL OVER THE VICTIM ooo. ceecceeceesceseeeeseseeesesseesseseesecesesnssseeecneenes 104 A. Factual Background .....0....ccceceeceseesssssceeesecsaeeeseseesecessccsscesseesesestenseneceaeens 104 B. The Trial Court Erred in Instructing the Jury that a Robbery is Complete Only when the Perpetrator has Eluded his Pursuers .........c:cccccccsccssesscsseeceseceseccessesessccseesseenseseneeceeseesseeveass 106 l. This Instruction Required the Jury to Use an Improper Subjective Standard...cccec ccesseceecssceseeceesseessenenes 106 2. This Instruction Violated Appellant’s Right to Due Process... ciceeeeeseccsnececsececseeeseceesnecsseesseecensueeeesessseececenseersseenss 108 C. The Trial Court’s Instruction that a Perpetrator has not Reached a Place of Safety if His Continued Control Over the Victim Places Him in Jeopardy was Argumentative and Created an Impermissible Mandatory Presumption ..........ccccccccccceeececesseceeecesesecessececseseveessecevsvevreass 109 D. The Errors Were Prejudicial 2.0.00... ccccccccecceessecsscseeccesceeseseeseseeseersevereasees 110 THE CUMULATIVE EFFECT OF THE GUILT PHASE ERRORS REQUIRES REVERSAL OF THE GUILT JUDGMENT ooo... ceeceeeceecceeeseeeeeeeeaeesteseeeesetecseesesatsatenssesseesecetesneeees 111 PENALTY PHASE ERRORS VIU. THE TRIAL COURT ERRED BY INSISTING ON FURTHER DELIBERATIONS AND REFUSING TO DECLARE A MISTRIAL WHEN THE JURY DECLARED THAT IT WAS HOPELESSLY DEADLOCKED0.oeecececceccceceeeeeeeeeeneeseeseeseeeeeeaeseseesessessecssecsecesecaeeeeesestersessteas 113 A.. Factual Background ......0...cccccecccccccescceseecccceeceseeeeceeseeesssecessssssseseseevensanees 113 B. Penal Code Section 1140 Required the Trial Court to Declare a Mistrial when the Jury Declared it was Hopelessly Deadlocked 2.0.0.0... eececcececsecesseeseeesaeeesseeccseecseesesteseeseseessseesees 115 C. Appellant’s Rights Under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution Were Violated by Trial Court Refusing to Declare a Mistrial... 119 IX. THE TRIAL COURT ERRED BY REFUSING TO ANSWER THE JURY’S QUESTION AS TO WHAT WOULD HAPPEN IF THEY COULD NOT REACH A VERDICToccccccceeceeeeneeseseeneeeseeeseeeceaeesseccsseeensseeesseeessesessensenseee | veceseneeees 121 A. Factual Background ...........cceeeecceecceeececcceseeeceessaeeesesseesesesessesenteeceseeenssenes 12] B. The Trial Court had a Sua Sponte Duty to Answer the QUESTION 20... eee cece cece cceeceeeeeeeeseetesseseeecsseceessececccseeesessseseensestsnasetsatecenses 124 C. The Error was Prejudicial ........cceccccccccccseceeseceecseeecseeceeecestessteseseessensavenas 127 XxX. THE TRIAL COURT PREJUDICIALLY ERRED IN RESTRICTING DEATH QUALIFICATION VOIR DIRE OF THE JURY ooo. eeeceececcecececceeeeeeeesceeceeeseeaceeesseeaeesseeessescssesaecsscuseeeesseesatsesensenae 128 A. Factual Background .....0......ccececceeceeeseeeceesneecesesceceesseeeeesscsessseeseeeessecensneenes 128 B. The Trial Court Improperly Restricted Voir Dire ........cecece eee eee eee 133 C, The Error was Prejudicial ...........ccccccececcccessceccecceecesseecssecessccsseectssseeneasers 140 vi XI. XI. THE TRIAL COURT ERREDIN FAILING TO GRANT A MISTRIAL AFTER THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT IN HIS OPENING STATEMENT BY ARGUING THAT THE JURY ACTS AS THE CONSCIENCE OF THE COMMUNITYooo. eeceecceeeeeeeeceseseeeeeenseeceeseceseeseeseceaeecsesanecseseseenseeestaecsaeeasens 142 A. Factual Background ....0.....ccccceeccesceeceeceeesceeseeeseeesaeccseecssccesecessesenesesssesessnes 142 B. The Prosecutor’s Comment was Improper and Violated142 Appellant’s Rights Under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution ; Therefore the Trial Court Erred in Not Granting a Mistrial...ceeeeeeeeeeeee 143 C. The Error was Prejudicial ........eccceeeeeceeeeeeeseeseeeeecsseeeeseceseeceeecsesnseerseees 145 CALIFORNIA’S DEATH PENALTY STATUTE AS INTERPRETEDBY THIS COURT AND APPLIED TO APPELLANT’S CASE VIOLATES THE UNITED STATES CONSTITUTION ooo ceccceceeceeceereeeeeeseeeeeteeeeecaeeeceeseeseesaeecsecnesesesseeneeeeeneteesesees 146 A. Introduction ..........cceeceecceeececccecccececccvcesecccsecececcuuseecusseceecaceccscsececuteecsseesees 146 B. Appellant’s Death Penalty is Invalid Because Penal Code Section 190.2 is Impermissibly Broad ............0.ccccccsceecssseesscceesseeeseenseeee 149 C. Appellant’s Death Penalty is Invalid Because Penal Code Section 190.3 (a) as Applied Allows Arbitrary and Capricious Imposition of Death in Violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution................ 15] D. Appellant’s Death Penalty is Invalid Because California’s Death Penalty Statue Contains No Safeguards to Avoid Arbitrary And Capricious Sentencing, Deprives Defendants of the Right to a Jury Determination of Each Factual Requisite to a Sentence of Death and Therefore Violates the Sixth, Eighth and Fourteenth Amendments to the United States COMStitutiOn 2...ee eeccecceeeceesceeeeeeseeeseeeseecseeeseecesscesecsceecseceseeeseeeess 154 Vil 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, Thus His Constitutional Right to a Jury Determination Beyond a Reasonable Doubt of All Facts Essential to the Imposition of a Death Penalty was Violated .....0....0.0ccccceeccsseeesescesceseesesseseeees ceeteteceseeees 155 a. In the Wake ofApprendi, Ring, Blakely and Cunningham any Jury Finding Necessary to the Imposition of Death Must be Found True Beyond a Reasonable Doubt.........0.. ccc ceccceeecesseesseeeeeeeee 159 b. Whether Aggravating Factors Outweigh Mitigating Factors is a Factual Question That Must be Resolved Beyond a Reasonable Doubt oo... eeccceceeecceeteeesecesseeecseeeecsseseseeeeesesesesseeesensees 166 The Due Process and the Cruel and Unusual Punishment Clauses of the State and Federal Constitution Require that the Jury in a Capital Case be Instructed that They May Impose a Sentence of Death Only if They are Persuaded Beyond a Reasonable Doubt that the Aggravating Factors Exist and Outweigh the Mitigating Factors and that Death is the Appropriate Penalty... eceeeceeccceeeceeseesseeeseesescnseeenseees 168 a. Factual Determinations .0....0.....cecccccccccecsceesscenseeeessteteees 168 b. Imposition of Life or Death ..0..0..eececcccceceeceeeeeeens 169 California Death Penalty Statute Violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution by Failing to Require that the Jury Base any Death Sentence ......... ee ecccccceccccesereteseeeerereens 172 California’s Death Penalty Statute as Interpreted by this Court Forbids Inter-Case Proportionality Review, Thereby Guaranteeing Arbitrary, Discriminatory or Disproportionate Impositions of the Death Penalty ..........00.00.00.. 176 vlil 5. The Prosecution Maynot Rely in the Penalty Phase on Unadjudicated Criminal Activity; Further, Even if it Were Constitutionally Permissible 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... ccccccccecccscccsceceecessescereessccessesssesaeesesaeeens 178 E. California’s Death Penalty Statue Violates the Equal Protection Clause of the Federal Constitution by Denying Procedural Safeguards to Capital Defendants Which are Afforded to Non-Capital Defendants 000.0... cccceecccccceseeceseeseeseseceeseeeens 179 F, 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 to the United States Constitution ......000..0.0.0..-- 183 G. Appellant’s Death Sentence Violates the Eighth and Fourteenth Amendments to the United States Constitution Because Co-Defendant’s Received Life-Without-Parole..........cccccccccecee ee 186 XUI.. THE CUMULATIVE EFFECT OF THE GUILT AND PENALTY PHASE ERRORS REQUIRE EVERSAL OF THE JUDGMENT OF DEATH... ccccccceccscesccsscescessecscesessscesesrsnesenseees 189 A. TntroductiOn oe... eeeeeeeeeeceseeseeeeesecsseessecssesacesecsasceressscsssessessesesersvsesnsensess 189 B. Prejudicial Errors Under State Law .........cccccccscececesecessceecesessevestaseeseeees 190 C. Prejudicial Federal Constitutional Errors........00..cccccccccccescesssessseveseseeesesseeee 192 D. The Court’s Assessmentof the Strength of the Evidence in Aggravation Cannot be Relied Upon to Conclude that Penalty Phase Error is Harmless ......00...0.ccccceeesecseesceseeesees 194 CONCLUSIONooocecceccnceeeeeseesesseseatssssssuasscsacesessessesssssecsecessscsvscesevsnsaseasvareavaeeatess 197 CERTIFICATE WORD CONTENT.00.....0c.ccccccccccesccesceseescescescescescesssseaeserseceseersarereatess 198 PROOF OF SERVICE 0...eceecccccccccescesssssesseseesaesseeseecucecssessccssesusesevsasssessasevaueauevsevatereaees 199 1x TABLE OF AUTHORITIES STATUTES Evidence Code section 1200(a)............cccccccccccescecesssseseeesaeeesseaceeeseseeeersnaceeeaeeeesesseeeeeesteens 81 Evidence Code section 1200(b).........ce ceveccauecenscecceeesesseaseeecseaeeececsaneeesecaeeeaeecersvsneseeeeseesns 82 Evidence Code section 1230 wiiccccccccccccccecccecsscscsscceceseceeseeecesseseceeeesenssersesteseeececeeeseceeeages 82,87 Penal Code section 187(a)..........ccccccccesssceeesseceeseeesseeseseeeeeeeessnanesseneeseeaeeseneneeeensneverseneeetes 2-3 Penal Code section 190(a) .........cccccccesesscesenceecsseeseceseeeeecealersaaecssneessiaeessneneeserseeeeeeneaeeees 163 Penal Code section 190.2 oo... ccccccccececcececssessnecceeeeeeeeceeseeeeeeeceeeeseeseeetenens 149-150,154,165 Penal Code section 190.2 (a)(17) .......ccecccccccccecssceserecseeeceeenecescaeeeeeesseneerenaaeneensnneteeees 2-3,57 Penal Code section 190.2 (a)(17)CH) ....c cece eeceeseeceneeeeeeeeeenseeeesseeesestesnenaaaeeseseneeeesggs 49-50 Penal Code section 190.2 (a)(18) ....ccccccccccccssccsseceeeeeceessecseaceecsneeeteneeessaaeeeeneaaeersneeeerenees 3 Penal Code section 190.3 oc. cccccccccccccccccccsessseseeesstseesaeeeeeceeeenenes 152-154,165-166,175,177 Penal Code section 190.3(a)..........cccccccccceccceesseceeseeseeeeuaeeeesseeaaeessenecerensnneesaeeeeeeereesee 151,154 Penal Code section 190.3(D) 0.0... cccccccccccncccescceeceecesseeeesaaeeeessaeeeensrsneasaeetereversneaeeess 178 Penal Code section 211 .......cceecceccccececeeeeeteneeeneeeeneeeeeenneeeeseeeessaeeteeaeessseaeeeneessetteeeeseeees 2-3 Penal Code section 289(a) ..........:ccccecseeeesteeteeeeessevusssesessuvessuessisessasuesssesesesesseeesucesnecessees 2 Penal Code section 451 (a) .....ccccccccccccccccsssccecsssecseseessseeeseeeesseeaseecesaeecessnseacateceeeterseneteeeenats 2 Penal Code section 451(D) ooc.ccccccccccccceccesecesseeeecssaaeeeeenesaaeeeescaeeeeseesnaesacereerersennees 50-51 Penal Code Section 664 o......cccccecccccceccececesececsseeescecsacececeeneecseseeenceresaeeeessceesestenaneetseneessaaes 3 Penal Code section 1089 ooo.ciicc ccc ccceeceeceeecesssssececcecceeececceeceseneeeeeeeereeeeeeseeeens seseeeees 68-71,75 Penal Code section 1089 o......cccccccccccecceceeceeeseeneeeeeeeeeeceeecenseecenseseeesaeessaeceesteeesesneeesitersaeey 85 x Bollenbach v. United States (1946) 326 U.S. 607. eeeeceeceeceesceceeeeeeeeeeeeteeeeseceeseneseeeseceteeecesaeseeeeveesesecacesecssseeesetsenanens 124 Bruton v. United States (1968) BOLUS. L238cece cceceesececeeceeseeeeeeseeneeeeeeneteess veeeceesessteeseceeenseceaeeeses 85-86,92,100 Brown v. Sanders (2006) S46 U.S. 212. cccccccccccccccescccsenseecesecenscececesseeessaasecceuseeeseaeeeeecaeeesaetenentateceteneeeeees 54 Brownv. United States (1973) ALL US. 223ccc ccceccccceneccessseccessessceccsscssceesaesecesseesensseeseseaeceesngeesenseesesseiaeecsuaaeees 92 Bush v. Gore (2000) S31 US. OB.cececccnecenseecsccsaceecesseeesasecensecensaeensseceeseeseseseencecseeeeteeseseeeeeeetees 182 Calderon v. Thompson (1998) 523 U.S. S38. cccccccccsscccccsecccscesecessuseeseeneaeectecesecenseeeaecesecseeenaeetineeneenseersaesSL eeeseeeeee 53 Caldwell v. Mississippi (1985) 4T2 US. B20 coc ccecccecccscceseeseeseeeeeesececeeseeseeeeseesecaeeserseceeeaeceeceseseeeesseaetenseeseseeats 134,190 California v. Brown (1987) AT9 US. S38 o.oo ccccccccececeseccceseecenaeecesecneeeeceecaeececeecaeesasesaresseeecseesneeeesenaeeseesnevenaes 172 California v. Green (1970) 399 US. 148 ooo cccccccececceenseceenesaeeccsseeescessseeecesseeeceeesscecsssseecessecssseeeceeseneeerstaaees 84 Chapman y. California (1967) 386 U.S. 18...eee cece eeseeeeteeeeeeeeneees beceeteetseeseees 80,92-93,102,110,112,127,190,193 Clemons v. Mississippi (1990) MOGULS. 738 .occccccccccsscccscceeccsseseseenseeecsecaceceseecseeseaeeueceeneeaecasesseseseeeeseaeseeserseereeas 194 Connally v. General Construction Co. (1927) 269 U.S. 385... ccccccccccsecccesceeecesceeceaeseeecaanseececeecsesssecessaaeesenaceceneaeeessaeeseseetaterseaaaes 109 Conservatorship ofRoulet (1979) 23 Cal.3d 219 ooicccccccececccsceseecseccensessneeceseeeeecesescessreeecscseeeseeseesneeesereeteenterees 170 Crawford v. Washington (2004) SAL US. 36... ccccccccececcesetenscececeenueecsceeeceaceceeeesceeceaeeecaeeeeeneteneessieeeeeenerees 90-92,94 Xt Cunningham v. California (2007) USreece ee cece ceeeeeeceneceeeeseeeseeeersnseeesnneenenees 156,158-159,161-164,166,182 Cunningham v. Zanf(11"Cir. 1991) . 928 F.2d L006 oecece ceeceeeeceeseceeeneeceaeesseeccsecesecsesneessceecsacerssaeeeneeeetaaeeeeseeesteeess 144 Davis v. Alaska (1974) . ALS U.S. 308ieee eee cececceeeteeceeeeseeeseesseeneeseaeseseseeesseenaeecssesunescaeeaeseaaeseneesaeseeeeeas 84 Darden v . Wainwright (1986) ATT U.S. 108. eecceeececencecescssceeecnseeseeesaecnecseeeseceeesaaecusecnseeseesseeesaeenseesesenseeneseeaees 144 Davis v. Washington (2006) S47 US. cee eeeccceceecsceesesceeseecteneceaneeceneceaeeceseceeeeesaeeecececeaesesaecesaceesseeeesseesesees 84,91 Dennis v. United States (1950) 339 US. LOQcccccececceescecesesseeeesceeeesseeeeeseeesseeeesenseesessueseesseeesenseeeeesetsteeseeteesees 78 Drake vy. Francis (11". Cir. 1984) T2T F.2d 990 oooccceccccccccececcecceeecceceseeesaeeceaeesaneceaeenaeeeesaeeseeeseaneceseeeessecsseseeeseceesseeeeas 53 Enmund v. Florida (1982) AS8 US. 782. ceecccceeceeceeeeeeceennneeeneeeesSs eaceesceeneeeseeeceenetseseetsaeeeeeeseaeeeseueeeenseeeneeess 187 Estelle v. Williams (1976) 425 US. SOL cccccccccccccesscecenscceceeseccessseeeesssecseseeesseeeecsssesescseeecessteecesseseceesstesenseees 193 Ford v. Wainwright (1986) ATT US. 399 oiiccccccccccccccessceccenececcnseccenseaceenseesseseeeneeeeecsaseeecccseeeesssesseseeacsessuseceesaees 186 Furman v. Georgia (1972) AO8 U.S. 238cece cece cece eeeceeeaeecaceceaneesseecaeeeseeseneeeceeeeeeeeeeeeeeates 175,177,186-187 Garceau v. Woodford (9" Cir. 2001) 275 F.3d. 769 voccccccccsccsveseseesevsessvssessecscsavsussecsuessessvsesssavsuvsusevsavstssestsevensrteevsesseeees 103 Gardnerv. Florida (1977) 430 U.S. 349occccc cccscccecssssccseeseccseesaccseecsecssssaecueeesseessceasscssceseeseseseseeeseessee 169 Getsy v. Mitchell (6"Cir. 2007) FB eeceeceececeevsssevesevevsevsussesevsavsevssesnesavsersecsnssvescsvsuesevsessesesssssesevsevseeneeee 188 Godfrey v. Georgia (1980) AAG US. 420.eeecee ceeeceeeceeececneeesceeeeeesecesseseseeseeesseesseeeeesesseesensseenseensaess 153,186 Gray v. Maryland (1998) S23 U.S. 185oooee cesceeseceeeeneeenecesseneeecesceeeeceeeseeseeesssesseesseeecessescssecsueceseeeaseasesaseens 86 Gregg v. Georgia (1976) A283 U.S. 53ec eeccccceneceneeceeeseceeessecneeeeeceseeesseeessecaeesseesieseceeenseccenseeenae 144,172,186 Harmelin v. Michigan (1991) SOL US. O57 oii eeeccceeeencececeenecsncevacererscsaeeseesseecesseessesessesseeeceseecesssetsessecsessssessess 174 Harrington v. California (1969) B95 US. 250... cee ecceneeneceeecesecsnessceaeccesacereceeeceseneesaesseesseeeeesseecsssesseeseeessaestevsteens 92 Harris v. Rivera (1981) ASA US. 339. ceccceseceneeeeeceeeesesseceseenssaccessteneeesacseeessaeeeeeaeeecueevsceeseeseeseeenseeetaeens 187 Hicks v . Oklahoma (1980) AAT US. 343 iccceccccccesccceseneceesceeeeacecssaesessecsseeeseesesessesssseeceescsssecertvscessntetecsnaaerers 193 Hilton v. Guyot (1895) LS9 US. LBceecceccceeecceeceeseeessceescaeeecesecesececsecssesesseestecesecaseccssseseaeseenesnneeenas 185 Holbrook v. Flynn (1986) ATS U.S. 560 oie cecccececeneeeneesneeseeeeeecseeesaeeceseseeeesseesesseeeesecseeeecsaesesstessesesesesseresseeees 193 Hovey v. Superior Court (1980) 28 Cal.3d Looeccceeccrscceesescesensaeeseeseceesssieeeseeeetseeseeenssenseeseecsseseeeseeeessees 128 Idahov. Wright (1990) AOT US. 805oe cecccccececcesccceseeceseeeseseesseeesuceccseescsseessesessesesseersceccessssessateesteessrersas 88-90 In re Carmaleta B. (1978) 21 Cal3d 482occeee ceceseceneceseeesaeeeneensecesseteseseeeeseeeeseeseesesseesstesssensseesrtenseens 137 In re Chapman (1976) 64 Cab.App.3d 806 oo... ec cccceccesceeeseeseesesssteeccssecesessseeaseseeceseesensecessscnsseasevssseseesase 118 In re Mendes (1979) 23 Cal.3d 847 occ ieccceceeccceceenecsneessetsaeeceseeecesseesesseeeeecseceesssecesseceseseseseestssseesrenaes 74 XIV In re Rodriguez (1981) 119 Cal.App.3d 457 oo..cccccccccccccscesececcceseceseeeecesaeeeseneeseecssetseeesceaeeessaeeesenaeenteeeereeses 112 In re Sakarias (2005) 35 Cal.4140 coccccccccccccccccceseccsecsssessssravsesceseacsavaesesssvevasssassssesecatescsscassecsesssseseesees 52-53 In re Sassounian (1995) 9 Cal.4" 535 coecccssssccssessseccssessnecssceessscesnescunesncsnsecuscsuucessnesssnneesecsnsessetaneesesenseesnneestes 50 In re Sturm (1974) V1 Cal.3d 258 ooo ccccccccccscecceccseeensscccnsececcesseeeeesensecessaeesseensaegeceesesasaaeesssseeerseeens 173 In re Winship (1970) 397 US. 358...“ceeuccececceusnecececesesacecseeseeeseececsseeceececescaeeessaeeeeeneesiuseneseeereetensgs 169-171 Jackson v. Virginia (1979) 443 US. BOToe cecccccccccccsnececsseenecsseceseaeceeseceecessaceesevsaeeceeeceaseceeseateeseeseeeeessnaeersteeenes 49 Jacobs v. Scott (1995) S13 U.S. L067... eecccccccccccseccececeseesneeeceseecesssaeesecesaaeessanecseesnnaeeeessenseeceeesseneeesieeesntees 54 Jecker, Torre & Co. v. Montgomery (1855) 59 US. LO cececece ccccececeeceeeescecessceecsesseeessseceeeseeesesescseeseceeasaeeesecsststecsseeesees 185 Jenkins v. United States (1965) 380 US. 44Scccccccceccccsseeeccneeecceeesseeeeecesseeceseeseeeesseesseeeseasseeeessseaeesesaeeseetenes 120 Johnson v. Mississippi (1988) A86 US. S78 oc cececccccccccesceeseeeceeeseceneceeseaeeceesanecsaeeeseseseceseesseaeeeteeseneesenseeerees 178,192 Johnson v. State (Nev., 2002) SQ PB ASO oooccececccccccesscccececeseecseeeeacecaeeescaeceeaeeescaeesarecseesseeesseeseneeeeeesneeeesnaeesensas 167 Kansas v. Marsh (2006) . —US...eeu eebeeaeeesessecesesatecsueecesesecessscesetssesesssteeseeceteeeeesteeeseceneas 147,175,177 Lilly v. Virginia (1999) S27 US. LO... cccccccccccccccccecceeeseeaeeeseeseeenaeesaeeceseesasessevnevaeeneesnneeseeeesaeereees 81,88,90 Makv. Blodgett (9" Cir. 1992) 970 F.2d 614 vecccccccseccesessessesecevssecsscevesecsessesiesseevereseseesessesstsatsessessssecess 189,191,195 XV Martin v. Waddell’s Lessee (1842) AL US. B67 Loc eceeccceccceeeceeeeeeceseesceeseeseeceeseaeescesseecseseasesaeeasessecessesseesesseceteenseeseens 184 Maynardv. Cartwright (1988) A836 US. B56.cece ccccteeceeeeeseeseceseeeseecuececesseesasesseeseceseseseseesessesstecssecertentsenstees 153 McKoyv. North Carolina (1990) AOA US. ABBeects ee ects tenets ee nees ee ceseer steer sete nenensneessseecensesensasseeeeeeeaeinersaneeess 191 McCleskey v. Kemp (1987) AB 1 US. 279ce cccccccccescescsccesseeccsecessecssssesseccseecsseequssesssesesseesseecusssecssesersusvsasenens 19] Miller v. Stagner (9" Cir. 1985) TST F.2d 988 occcccsccscsessessvssssevssessesssssassecssvcssessnsessscessevssvssvssavssesuesuesassusaessesanesueeaeens 75 Miller v. United States (1871) T8 US. 208. ccccccccccscccsseceessecesseesesecasecesstesseecseceesseeseseecesseusseeensseesssseseateeeseeseneceeas 184 Mills v. Maryland (1988) A486 US. B67ce cecccesccseeeeeececeessseseceneeesecseessessesesaeesaseseecseeseeeeesenstenseees 174,183,191 Mongev. California (1998) S24 US. TQ Lie ecccceseeseeeeccenceeeeeceseeseeesceneeceeesecesecenseeseeestessecsseenees 167,171-172,180 Morganv.Illinois (1992) S04 US. TL.cecc cece eeeeceeesceesscecneeeessseeseeetsteneeensseenseess 133-134,137-138,140-141 Morisette v. United States (1952) B42 US. 246. ceccceeccseseenceeneeecaeeesecseeseseeseeeeeeseecsseecsseaeceseesseecsaccseeesseeeseeetsetecsss 108 Mu’Min v. Virginia (1991) S00 U.S. 41Soo ceececeeecceeceseceeeseeaeessteneesaeecsecesecesseecseessesseecesteesssesreensrerseed 136,138 Myersv. Yist (9" Cir. 1990) B97 F.2d AT ooo ccec cece cece ccee cece senseesessesseeeeseeeeaesceeeveseteeeeeeseeesseeeeseeeessneeeaes 174,183 Norris v. Risley (9" Cir. 1990) D8 F.2d 828 oeeeceeesceesceeeeeeseceseeessesecesecesceesueesseceseecseceeeesssessesesssecsressrenrens 193 Ohio v. Roberts (1980) IAS US. SO.cece cescesecesecesseecsseseseccessessesessecesssesestecssteessessasestasecestnesersnevenees 88,90 Xvi O’Neal v. McAninch (1995) S13 U.S. 4BQececcccccceeeeeeecceeeeeeneceeeececaeeeseeusaaeessneeeeeeeesanecesaeesenaeessaeeeseneeentesereeats 93 Padilla v. Terhune (9" Cir. 2002) 309 F.3d O14 ooo ceeceneceeeeseeeeceaeeeeneeecsaecenececnaeerscaeessneecseeeeseneeseaeessateesneesieeeneees 89 Parker v. Dugger (1991) A98 U.S. 308 oo. ceceeccceeeccesceeeenccecesceeceneeecceeceseessacecseeeeesaeceneeecsaeessaaeesiaeerseserseeenatens 193 People v. Adcox (1988) AT Cal.3d 207 .oceccecceecceesceeeeeceeeesececeneeeessnecneecsncecesetececeeeseeesseeesineessaeeessnersas 144,152 People v. Aho (1984) 152 Cal.App.3d 658 oo... cee cccecceccceeseececeeessevseeeceaeesssaaeneneeuaceesseeeeeeneeesneeersaeesseceaes 102 People v. Allen (1986) : AD Cal.3d 1222 oie eecccecceccecceeencceceaeceeecececeesneeceeeeescaceseeeesseeesaeeeenaeeceeeeenneeseeeas 160 People v. Allow (1950) 97 Cal.App.2d 797 oo..ccccccccceseccccceeeenccceseneeeeeseeeesnaeeeensceeteneneeeeeseeeeensueesessereseneeeenseees 50 People v. Anderson (2001) 25 Cab. 543 occ ccccceccseeeesseesseesneeessecesveessnceserseseneesnseesnecesnsessseenseseeeesnseesnneessses 163 People v. Anderson (1987) A3 Cal.3d L104 ooo cccccccccscsececeenceeeecnseeeseeeeceseeeeeesseesssseeeeesseeeeceeaseeecsuetstaeenaes 92 People v. Andrews (1965) 234 Cab.App.2d 69 oo cccccccccsccccccssseceeeeneceensececeneeeeceeecessssseeeesseseesesseeeeeseeessseeeaaes 84 People v. Aranda (1965) 63 Cal.2d S18 oooccccccccccccccccccecececceseeeecessseeeseeecenseeeesesseenesaseeecsseesesseeeeens 85-86, 100 People v. Ashmus (1991) S4 Cal.3d 932 oo ceeeccccecccccceeeseneeeceeeeeeenerenseneeeseneaeeeesueeesseaeeessteeeessesaaes 74,127,190 People v. Bacigalupo (1991) V Cal.4" 103 cecceecccssseecsssseesveessvecssnessssecssnmeecsnssessnseeneesssneeessueecsneeecsaeesseeessneesen 149 People v. Barnwell (2007) Ca ececeececccecececevscssevecevsvevsvevesssevavsusecesssuvavavsvsveressseatavevsvseeesveneeees 16-77 XVil People v. Beagle (1972) 6 Cal3d 44d oi cececccccccccccceccensccseeseeeeeneeceeeteeseseeeetiseceeeteseetneessesertensesseseneeenss 99-101 People v. Beeler (1995) Cal.4953 ooccecceccseeccesseeseecesneeessseeeesenieeesssseeesesneesecsnmmesanmeessoneeeeesnumeeessneeenseessieas 71 People v. Bigelow (1984) 37 Cal.3d 731 oocceccccccccecccecescceseceseceseeeeecneeeceeseeseeensececesesseseenseeseeessesesseeseesnessanes 137 People v. Bittaker (1989) A8& Cal.3d 1046 oo...cee cccccccccecececececeeeeneeeeeeeenneesneeeesaeeesnesesesseesseesseesessaseaeaesenas 152 People v. Black (2005) . 35 Cal41238 vocccccccccccccsssscecesescsvscscescecevsvssicsesesevevavscecsevavavseecvevsuevavsvacseaveves 161-163 People v. Bowers (2001) 87 Cal.App.4'? 722 ooccccccscssesssseessseessesseeensssssneesneeeneesneesusssnsesensesneesnieesneesnessnessentsess 70 People v. Brown (1980) 110 Cal.App.3d 24 oo.ceceeeccececeneeesesecesenseseeestesseesccseeneeecaecsessseeseenesseessesesecseeenseegs 192 People v. Brown (1985) AO Cal.3d 512 oieccccccccccccccseccesseecceeeeneeeceeesareecnteessaeesseeesseesnaseeneeersereerea 160,191 People v. Brown (1988) 46 Cal.3d 432 ooececccccccceccccccccssceeeceescceeeeeceseeteeeeseaeecsaeseneessneeesesseeseneessnes 127,160,190 People v. Buffum (1953) AO Cal.2d 709 oii cccccccccccccccccscsceseeeeeceeeceeeceneetencereneectegaeseasseeseeeeeseereeeseeecenaaeees 111 People v. Burnick (1975) 14 Cal.3d 306 ......cccccccccccccsceesceecescececeeeeneeeeeseeeeeeeseeretsereeseaeesseernsesesesetseneseeseeeages 170 People v. Burton (1971) 6 Cal.3d 375 coccccccccesccccscsseeseceseceseeeeeeeseeeresseeeececuseseeeseaeecneesseseestsessessseseesteesseseeceeeey 58 People v. Cage (2007) AQ) Cal4!” 965 o.oo cccccccccccececscccevecsesessvacacisssrevevesevevacsssevavavsevaaavssesicesvevsveveceevevacers 91-92 People v. Carter (1968) 68 Cal.2d 810 ...cccccccccccccceecceseceeceneeeeeeeeneecerseeeseeeeeseeeeeeesseseneesenesteesseeenseseeees 116-117 XVlil People v. Carter (1993) 19 Cal.App.4™ 123 vooccccccccccscssessstssessnesesssessessseessssessessnssessessnsattesssesestucnseeseseceeessees 109 People v. Carpenter (1997) VS Caba312 ocecececceecsseecsssesnecssnecesneesnscecnsesssseesveessnecsnseatessnecsnsenseceueesnsecsnecenseenneeses 99 People v. Cash (2002) 28 Cal.4" 703 v.ccccccecccecesececsesessescsesesevevsveveveevevsecevevsvavsavecaeevesseececeees 135-136,138,141 People v. Cervantes (2002) TLS Cab.App.4162 o.ccccccccccccccssesssesstessecseesseseseeesesseesseesesseessesestessessessisesessnessees 81,87 People v. Clark (1990) . 50 Cal.3d 583 oooccccccccccccccseceeeeseseceececeeececaeesseesaeseseeesaeeeesaeeesnueesneeeseaes 51,60-61,136 People v. Coefield (1951) 37 Cal.2d 865 oo..ccccccccccccsseecceececeesceseacensaeeeaesesceecsaecsseeeeeenetseasecsetecesatesneeesaseenseees 106 People v. Collins (1976) 17 Cal.3d 687 o..cceccecccecceecescceseeseeseeseeaeessecseenecaeenevsecaeeeeeenaecaeescesaeseaeeneeeseseeseeeeensess 71 People v. Compton (1971) 6 Cal 355 ooocccccccccccccsccessecesseccccesceceeseeesaeesaecscaeesscecssaeseaceeessetenseeeeseeesateesees 71-72 People v. Crew (2003) 31 Cab.4822 occ cceccccesceceesesssscsvsevscsesasavsuesvsssesvsucscstsssavevsvevsusevsvensesetesteeeveesevees 143 People v. Cromer (2001) DA Cal.4™ 889 ooo ccccecccsssccsssecsseecssesesssecsnesssnsesesssecsnneesnusesnieessceucessecessecsseseseeeesneeen 81 People v. Daniels (1991) 52 Cal.3d 815 oooeeccceeccceeccccceesececeneccesneeeeseacecseeeeessneecsenaceceeseneeeeseeeeserseeeseneeeeteeeees 71 People v. Davenport (1995) VD Cab? UTD oececccceecceseeeccsseeeeceessesecesseeeceesseesesnnecessnneceesneeeesneesseeetessnees 135-136 People v. Delamora (1996) AS Cal.App.4"" 1850 v.cccccccsccscessescssssessececsesevsesessasesssesessesesecevsserseseveveeveevevseveetseseses 70 People v. Demetrulias (2006) 39 Calad coccccccccccccccescsseevsescsesecsssevsesessvevsussvsevecsuseesvsesavsvstesecevsvevevstsseseseveees 174,181 XIX People v. Dickey (2005) 35 Cal4884 oooccc ccccecscescscusvevsevstesvstetsevesesteveteevststststesvisettevetitestteeereeee 161 People v. Dillon (1984) 34 Cal.3d 44d oiececcccccc cece ceecceeeeceeceseeecaeeceneceneeecseeesaeessaeeeseeesseeeeteeteneeees 106,150 People v. Duarte (2000) QA Cal.4603 occcceccccccesescsecosecsssssnecssesuessnessnecsecsnsesuscsnvecnscsvscsnsenscsueseunseneennsensesnenes 83 People v. Duke (1999) 74 Cal.App.4? 23 ooccccccccescsssssssssessesetecsvssesscsavesesessntseserssesessseresseecsanesesensaeeseeseeen 88-89 People v. Dyer (1988) A5 Cah.326 once cccccccccsccesccesceeseeeneeeescennecseeeeaeeaeeceaeeneeeaeeeeeseaseseeeresateeseseaeersnees 152 People v. Edelbacher (1989) AT Cal. 3d 983 ooo. ciccccccccssccecsssccesssceeensssecessseeccsesscesuseeensseeecenieeeeesseecesstesssueceesenstees 149 People v. Fain (1959) . 174 Cal.App.2d 856 oo. cecicceecceeennneecceeneeeeeeeeeesnnneecnnaeecescieeessestesesteersteeeesneasenes 116 People v. Fairbank (1997) 16 Cal41223 vocccccccecccesscsesesecsesecsesecevecscsesevsvessevsusevecsusevavivessavevsasivssavsveaneves 155,173 People v. Farnam (2002) 28 Cal.4™ 107 vocccccecccecccscecscsesesecsesvevevstsueservacsvatsvecenevevevsvsteeeess secesveseevensttessaceteee 160 People v. Farris (1977) 66 Cal.App.3d 376 ......ccccccccccccceceeceseaeceeeneceeceeaeeeeseeeescacecessnasecesieeessteeecsieterseeeeeeenes 74 People v. Fauber (1992) D Cah4792 coocccccccccccscesesessesessvevssssvecssvsvssusvecssvasecssvecstissessvssssvesissesavstssvevsesesasseeees 173 People v. Feagin (1995) 34 Cal.App.4? 1427 v.cccccccccssescsssecscsecsesersecsecsesecsessecerearssessesessvesesevsectavssssssseveneaeees 74 People v. Feagley (1975) 14 Cal. 3d 338 voc cccccccccccssccesceesseeeeseneessecessceecnseeseaeesaeeeeeaeeenseeceaeeeeaeeseeesineesneeees 170 People v. Fierro (1991) L Cal.4173 oooccccccccccececcesceseccssssssvsvseisvsvssessevsevavsvssevevsessissstssesitsuseavsvsvavssesseees 178 AX People v. Flagg (2002) B135685 [monpub. Opn.) oo... cece ecceceececcesecsaeeseeeccsecstsccerecssceseccsesssvessvsstarenseens 52 People v. Fletcher (1996) 13 Cab445D oo ececccceeecssssseesssessecsnmnssecssnessesssessssasssssinessssnseseressaniessansenversseees 84 People v. Ford (1964) 60 Cal.20 772 oeccccccccccccsccscccesccseesecsesseasssccscessessesesesssessssscasessssssvsseessevseesaetsvasenseeste 99 People v. Ford (1965) _ O5 Cal.2d 41 ieeecccccccecssceseessecseessesseccsessececseeeesessesecsacessevsssteaesevanevtnetatesssesss 107 People v. Franklin (1976) 56 CalApp.3d 18 oocccccccccccsccsecscesccsesecsecessessesescssesseseesscstesecesesaseescesseeasens 71-72,75 People v. Fudge (1994) 7 Cal.4th 1075 ooo eccecceececessecseseeseeseesseseesseseesanevsecsecssessesecseesssessesssevseesvesenteeseess 72 People v. Gainer (1977) 19 Cal.3d 835 oo cecceccccceescccscsessecseecsesscsssccsteseeeccstesessssessceeesssssssessteveseesavene 116,118 People v. Goldberg (1984) 161 Cal.App.3d 170 oo. ceecececceccscesesecesteseeecsaescsessesecssceesecsesssesscseessscssensvaseecnreeaees 72 People v. Gonzalez (1990) SE Cal.3d 1179 occccceeeccesceceseesceeseeseeseeecseesasesecsesseeccsecsecsesescesesssesevssestaeeeres 124 People v. Green (1971) 3 Cal.3d O81 eeecece ceccesesseeseecsesessscccsscseseessevsesesssessvssusssevssecseevseeeeeetreeuesensees 84 People v. Green (1980) 27 Cab.3d 1 ocieeccccceecccceeceeeeseeeseeseseescseseseseessesecsesccsesecsecsecssssesseseessesseeseveceeneeseeees 60-61 People v. Green (1995) 31 CabApp.4LOOL occ cccccsccesssecsssessseessessssessvssessussseessssesseessessueaverssessesdusesseseees 74 People v. Greenberger (1997) 58 Cab.App.4” 298 ooo. ccccccccccsssesssessecsssessssuessseesssuecsucsseesuesssessesssesseasessessesssessee: 87-88 People v. Hardy (1992) . 2 Cal.4? 86 oooccccccessssssssssssssssssnssssseseseesecceseeennnmieeeeeeeesssssnusninsecesstemeseesecesensan 152 XXI People v. Hawthorne (1992) A Cal443 occ ecccesecssseessseecsseessessensesssnecsssnneessunsesnnisesnstesssneseannnneessnseessneeseneeeen 175 People v. Hecker (1990) 219 Cal.App.3d 1238 ooo. ceecccccccecceesececeeeceeeenecnseeeesaeeessceeecseeaeesesenseeessaeesseeeeseeeeaees 72 People v. Heishman (1988) AS Cal. 3d VAT ooocccccccecccccecccceccceceeseeeeeetecseecacesseeeaaesesaecnaaeecssecaseeseeseesenseesseeeeeesesaee 82 People v. Hernandez (1964) 61 Cal.2d 529 oo cccccccesecceenccceeceeeseceesceeesesseesnaeeessaeeessaeecaeeesseceecesesenseesseeeesseess 108 People v. Hill (1998) V7 Cal4” 800 ooeseeecsseeecssseesssessseescssneesnnesesssnneeessneessnnesssusesssnneesnunmeessnneeannnseenes 143,145 People v. Hillhouse (2002) 27 Cal.4” 469 ooecccecceeccsseeesssessseseeseesssnesecnsnnescsaneeesnieenneessonvecsnesecnneeaneeesneenneeestes 150 People v. Hinton (2004) 121 CalApp.4th 655 oo... ccc eeccceccccccceseesecnecesceeesaeessaeeeesseeseeeensesseeecseceseeeesteeenees 118 People v. Holloway (2004) 33 Cab.4™ 96 oc ceccesscsseessssecesveesnsesesnesesssnseesssnivecsnnsesnnsecsuesecanesecssssseesuseesniseeaseseennes 71 People v. Holt (1984) 37 Cal.3d 436 o..cciccccccccccccccenccecesesceneneeesceeseecasesseeecsaecesaeeeecsecesseessecsasecssseenseecessessaaes 189 People v. Ireland (1969) 70 Cal.2d 522 oo... eeeeececcceeeeecceeeeeceeeeeseeeenseenesseeneeeeeeceeseceeseeeeseeseeeeneeeuiteneaeeeess 57-58 People v. Jacobs (1987) 195 Cal.App.3d 1636.0... cccccccccccceecccesceeeeeeeceseeeeaaeeeaeeeesaecaeeecssceseecnsneceececesseeseeens 92 - People v. James (1987) 196 Cal.App.3d 272 o....cccccccccceceeccssscenseesseeseccscecesseeseseesesscessssesseeseeecsssecssesenenseeaee 101 People v. Johnson (1980) 26 Cab.3S57 ooo. cccccccccecssccceseeessceessseeeseneeeceseersecesssseeeeesseseesssecscseecsseeesenseeecesstsseesaes 49 People v. Johnson (1993) 6 CaDececcseccseccssecssvecsnecsnecesnecsnseccesseeessnmssnnessnsesaucesaueesneseessseesstessieeeneessneeeen 74 People v. Kendrick (1961) S6 Cal.20 7 oceecceeccecceecceeceseeeeceesneececenseeseeceeeevseesesesseeeeceseeeessseesseeessensteseeeeseeenes 107 People v. Kelley (1990) 220 Cal.App.3d 1358 oo...cccecccccccccceeccceceesneeessseeeeesseeeeeseeeeessseccenseeeeecssecesensteeeesessness 110 People v. Kirkpatrick (1994) T Cal4988 oon eccccsseessccssssesneesesseeessnneeesneseeensesessusecsnnsseessnecesninsecsnneeessneeeanseessnees 135 People v. Lang (1989) AD Cal. 3d 991ice eceseccesccneceeseeseessneeecneceesseesarecsessesaaectessecseseasessesseeseesseeseeeasens 99 People v. Lanphear (1980) 26 Cal. 3d 814 oieceecceceeneceeeceececeeceacesseeecseeeaeceeeesaesaeseesssecseeeeenseesaeeeseenses 140 People v. Laursen (1972) 8 Cal.3d 192oecccences cnececsenseeeessescessneeseeceessceeeessersenessessesersecseneseeesseeeees 107 People v. Livaditis (1992) 2 Cal.4™ 759 voces ceaevcsseveveusavavavavauenseneusaveveversursesacasarsusisstasesacavensesaratetateaeacs 135 People v. Lopez (1975) AT Cal.App.3d 8 .o.ccccccccccccccccccessseesecseseeecicceeseeseeecesaaseeeccaecesesseeesesteeecenssaees 100-102 People v. Lovely (1971) 16 Cal.App.3d 196 .o...ceeccccceecccceeeseeeeeneeceseesseeeeceaeeeseesesasecaeeesseeceseeeesseeessseetenseees 118 People v. Marshall (1990) SO Cal.3d 907 oooceeccccceesceceeseeeeeesceceeaeeenseeesaeeseeessceceeseesensecesaeeeeeseseseeeesseeeeesseeess 178 People v. Marshall (1996) 13 Cal4” 799 oo oooccccccccccecccscccecsevsescssvecstissesevevecssisvevsvavstessassesevesevstisitesesesesvecesees 70,72 People v. Mendoza (1987) 192 Cal.App.3d 667 .......cccccccccceceseeceetceecteeeeeseeeseeeeatensceeveneeeeceeeeaaeeeneeeusneeeseeseseees 101 People v. Mitcham (1992) VL Cab.41027 oooccccccccccccececcsescsevevesevevesssecavavisississtissessvevevevesesesevavavavsticiesesvscevevevees 86 People v. Morante (1990) 20 Cal4th 403 ooo ccccccccccccccecsseceesseceeesstesececesseesssecessesesseecssssessuesseseeecseeeeseas 111,190 XXili People v. Morris (1988) A6 Cah.3d 1 occcccccccccecseceseesscesecsseecseecsecesessrecseseeseeseecceecsseeeseesaesnessseeeeeeeseneeeerees 50 People v. Morris (1991) 53 Cab.3d 152 .oicccccccccccceeseescesseccecseeeeeneeeceeeeeseeeneeeenseesnaeeseeseeeesseteenseeeseteeeeseeess 73 People v. Morton (1953) AV Cal.2d 536 oooccecccccccccsccccsssccncecceceessesseneneecseeeeeeeecessaeeeessessssesesesseceessseeeeceeseseeeees 192 People v. Nicolaus (1991) 54 Cal. 3d S51 cocccccccccccscccssscsceeeceeeceeeeceeaeeeneeeesacecasesecseecseeeeeseeeesatecsageesseneeesseaeers 152 People v. Noguera (1992) 4 Cal.4" 599.bessecesuseesssnevessnsecsoeseesnarecssuseessoreesetessaesseeesnarecesatessetesereeseeess 135 People v. Olivas (1976) 17 Cal.3d 236 ooo. cccccccccccccccssccccesscesssensceseccecseececcesecesseeeesensaeeeescsaseeeessseceeeeneeeeeeeonss 180 People v. Oliver (1985) 168 Cal.App.3d 920 .....ccccccccccccceeeseeceeneeceseeeneeecesesereeeeeeeesnaneseeneesenterseeeeetens 51,60-61 People v. Orozco (1993) 20 CalApp.4th 1554 o...ccecccecceeccecceeceenreeesecesneeeneeenseeeessceeseesesnrsesereesesteeeessnesensnees 92 People v. Penoli (1996) 46 Cal.App.4298 oocccccceccsssccssesseseesssesecsessessesesssessssecsssesessvssaneesetsessesesieevseseseeseess 137 People v. Perkins (1982) 129 Cal.App.3d 15 oo iceecececescceessseeeneceenretsecessneresececnaeessenaesenisesseeestateenennanenaes 102 People v. Pervoe (1984) 161 Cal.App.3d 342 ooo ccceceesecenecescecnseenecececeeecseeeseeesneeseeeneessatseeeesnseessaeeeeeees 73 People v. Pinholster (1992) V Cab.865 occ cccccccccscccssnescsneesesneesseesceeeseeecsnessnesesnseueeesisesteesneesseeseeenteesneeseees 134 People v. Pirwani (2004) 119 Cal.App.4™ 770 vocccccsscesssessesecscessssesteessesstissetsenesseesesesesssensettecseesnsnentnnaneiens 92 People v. v. Price (1991) L Cab.4324 oo ccccccccccccssecscssesessessssvseevsrseverssssevsseusssseceverseveversassusasavsrsansesavsvevsesavevees 714 XXiV People v. Prieto (2003) 30 Cal.4226 ooccccccccccccecseessesessessstsstessassastecstesrssucsussinsecsesesseeaveesicecsseeaes 161,163,181 People v. Proctor (1992) A CalAth 499 oiicecccccceceeccnccesceeessneeeneeceesneescaaneasesaeescaeesseeeeeseeseneeeseesaneeetees 117 People v. Rich (1988) AS Cal.3d 1036oieecsccesecceneeeeeneesseeeccsseeesesetssesesessueecsureeseeeessaseseatesaeseaees 135 People v. Roberts (1992) D Cah4QTL ccccccccccceccscessescssevstissessvscsecsesessssecsavavstussavsissevssssessesesssvssssvevsvssseseeeeees 73 People v. Robinson (2005) 37 Cal4592 oooeccccccccccccscesvecseceesvecsteassesvssesescsececscesssesesees ccseeeesevaceessetavseverseveveee 152 People v. Rodrigues (1994) 8 Cal.4" 1060 oocccccccccccccccceccsceccscscscssesevsvssssvaseccsevessssessvecsssevseserasssvstvsvssssesessssvecsesees 126 People v. Rodriguez (1986) A2 Cal.3d 730 ooeeeeecceccccccesceeececeneceseeeeeeeeeenaecsesaeeeceaessaeeesececaeeesnaeereeeeseiteseieeess 115-117 People v. Rogers (2006) 39 Cal.4” 826 occcccccccccceesesesessvavasvavssvsvatessvevssrevevavatecsasivseseesteseesesescieeseseseatees 173 People v. Rojas (1975) 15 Cal. 3d S40 ooo ecececceceseceeseenccesesnececeeesscceeseaeeeeesseeeesaeesnaeeesseeeeesaeeeeseeseetetees 116 People v. Roybal (1998) 19 Cal4481 oocccccccceccccccccscesescsvsvevescstesescseessvsvssvavevssissevsesssvisessuseatesvsvisetvitseeseseees 136 People v. Sabayon (1997) VS Cab.795 ooocccccccccccsecssecsseccsneceneenecsuecsnssuseasesasecsnscsneesucessecsesseesseceressneessecesesees 136 People v. Salas (1972) 7 Cal.3d 812 oi cceceecceccceccceeeceeeceeeesneeceneeeececeeaeecnaceeeeeeseeuceseseesaeeseneeeeeeeeeeenneee 107 People v. Sanders (1995) VD Cab.4475 ooo ceccseeecceeecscsceneeeeeessneesesessneceesnneseessessneetsassieesesutessssnnneseessseeeeeessen 73 People v. Schmaus (2003) 109 Cal.App.4™ 846 v.o.cccccccccccccsssescscsecseseceesesesecsevesesvssvsueessevstsasessvsessesevevsetsavsnseceees 88 XXV People v. Sears (1970) 2 Cal.3d 180 ooccccccccccccccscccsscesceceeccsecessecseeacecseceeesseeeseensesecsieeeseeceseeesseeseteeteesseeeas 58 People v. Sheldon (1989) AS Cal.3d 935 oiccccccccccsccccsccsscessecneccssecseceeccsseeeeecsesaecensessseasecsesesseseeeccsseceeseeasensees 116 People v. Sims (1993) 5 Cab4405 occcceccssesccssseesssssenvesecsnvecsssvecessssecenseecessneeesnieeesssvecenveesnneesnneesnnessereneees 82 People v. Sisavath (2004) | 118 Cal.App.4™ 1396 oc.ccccccccsscccscssecsssessessesecsececsresscsvssesvssesecsrsavensessvsussvevsnsaventeaase 91 People v. Smith (1984) 35 Cal.3d 798 ooo ccccccccccccsecsceeseceesececeeeseesecsceceseecsenseseeeensesesessseeesecesaeessseeesseeseeseenses 59 People v. Snow (2003) 30 Cal.443 ooocccccccccccscecscsesscseevsvssusecscsucevsueacsversevsssavsveresesteasavsvevsutecacsescavavens 161,181 People v. Song (2004) 124 CalApp..4th 973 oocccccccccccccccceccsceceeceeecseceseeseeessenanessessseensteenseeesseess ... 86-87,92 People v. Stanley (1995) 9 Cab4824 occ eecccesscessecssesssnesesnsecenssceriseccunsesnssecennsessnecensteeesuesnvecsusessetsseesneeeeenees 73 People v. Superior Court (Engert) (1982) 31 Cal.3d 797 oooccccccccccccssccescnececcesececeseeeeseeeeceeceeaceseesaeessiserstieeeeeeeteeeseensensees 109,150 People v. Talkington (1935) 8 Cal.App.2d 75 o...cccccccccccccsssccccceeceeenseecsceecceneecesseeeesaeeseeasesnaaeesesueaseeeeessasaeeesteeenses 116 People v. Thomas (1977) 19 Cal3d 630 o..ccccccccccccecccececeesecenseteesceceeceeececsecsaeesneeseeeseeeseseeessateessaeeeesseeeseess 170 People v. Thomas (1994) 26 CalApp.4” 1328 voccccccccccsscsccsssssessessessesevssesscssesassresnssnssavestavsassvesesacersesevseeesveeeces 74 People v. Valdez (1947) 82 CalApp.2d 744 ooo cccccccceccccecesceeeseesecseeeseeseseeeeceseceseeseeeeeeeesesesesaeeestseeseesseesaees 84 People v. Walker (1988) AT Cal.3d 605 oo ccccccccccccsececcecseeeenseeccsseecnseececuseesesseeeesseeeseeeeccssraeeeesestassseneeeesas 152 XXV1 People v. Watson (1956) 46 Cal.2d 818 ooo cccceccceccecccsnseccesseeeessceeersseeeeseseeecestssesenseasseceeseeseensteesened 127,190 People v. Weatherford (1945) 27 Cal.2d 401 oooccccecccccssecesscecsseeecesseecesseeeesseeeeeesseesecerssescsesssssteesstssestsessessneree L24 People v. Williams (1971) 22 Cal.App.3d 34 ooo. cccccecseeceeeeeevescutseueuevecseeecasessecscsesacesvecesvecaseeveceuees 112,194 People v. Williams (1997) 16 Cal.4" 635 ceccccccccccscsssssessscsecsvssvsucsstsssssssesevssssessecetsassusessevessresscanesesueaeareatsnseaees 134 People v. Wilson (1969) L Cab.3d 43 1 oiecceceecceeeceeeeeeseeeeseeseeeesseecesecessaeeeeageesesssessceecenseesesaessstecavressiess 58 People v. Zambrano (2007) Caieeecccceecsscesssneeeecsssnnsseessnunsseesssrecesssnnecessuasessneeeesennmneseeessnes 136,139 People v. Zerillo (1950) 36 Cal.2d 222 oiecccecceeecceneesessseeeessaeeeseseeeesenececesuseeseessseasesensteceessseeuepesseeneas 190 Perez v. Marshall (9"Cir. 1997) LID F.3d 1422 ooocececceeeeceneeeenseceeseceeeeesseeesssssecsseeeesseseeseseesecerseesenssenntess 76 Peterson v. United States (9" Cir. 1914) 213 FL 920 occ eeeceeceeceeneceneceaeeeececcaeescsuecseeesscesssseeesseeecsseesesseescseesenseseeseessssseneese 120 Pointer v. Texas (1968) 380 US. 400.ecceecceecenceeeeeceeeeeceeeecseeeesaeeescecesseeeesssecsssseseetaresseeesesteeeseeseesrenseees 83 Presnell v. Georgia (1978) A399 US. Acicecccccece cece cece ceneeeesceeesaeessseeseueessseeesssesesseeeseseceeseeceresereeesesesennsennes 169 Pulley v. Harris (1984) AOS U.S. 37 ooccccccccccccccceccesseteeceessseeceeseeecessueecnsuseecesseeesseesesesneseseserssaeeeaeas 147,176-177 Quong Duck. United States (9" Cir. 1923) 293 F563 oocceccccscccssessessessvsssvsssssvssscssesevsaessessvesssssssussusevsnssevseveessvesivsessaessesaveneeneeees 120 Richardson v. Marsh (1987) AB] US. 200.cececccccetecenseceseeesseceesseecscecsscecnseeeecnseeenseeessesseesreeesssensssersenserenees 86 XXVit Ring v. Arizona (2002) 536 U.S. S84.cece cence cece eceeeeeeeneeeeeseessenenteees 155,159,167,168,174,179, 182-183 Sanders v. Lamarque (9" Cir. 2004) B57 F.3d 943 ooocccccccccccccsesecceecssscseeeccneeescssseesseeesesseseecesseeessseseseeeesseeeesssaaeeesss 76,78-79 Sandstrom v. Montana (1979) 442 US. SLO...cececceetceceeeeseeeeceeseaeeesaecessaeecsaeeaeessneceseeeeseeeeesseesessnecesneesesseees 110 Santosky v. Kramer (1982) ASS US. TAS eecccccsceseeeeeesceeessceenesneeneesaeescesssecsacecenesseesseeaeseeeesseeeecens 167,170-171 Shea v. United States(9" Cir. 1919) 260 F807 vecceccccecscssesscsccessecessessssssesecsssssussvssssussscasacsusassussecsesstsarsesersevevensansatseneears 120 Skinner v. Oklahoma (1942) 316 US. SBS coe cecceececeeceeeeeeeeeeeeeeseneeceeecnaeeeeeetenseeseneesneeesessaseeetevneeeessnseenseetteess 180 Smith v. Phillips (1982) . ASS US. 209... ee eecccececceeeeseceeseaeeeeadeevseceseeecececseauaccssevsaseustenaeecsaeseaeeeeesaeeseeeseatenies 76 Spaziano v. Florida (1976) 468 U.S. 447ec cecceccccenecececesseeeeseeeeeesaecscesseeeseeeaeeseseesseeeeeaeesecseesstesececaeenaes 186-187 Speiser v. Randall (1958) BST US. SB. ececceccccececeecececeneeeeeusceeesseeeeaeeeseseeeceessaeeenseeesseeeessesenensneeseseesensesens 169 Stanford v. Kentucky (1989) AQ? U.S. BO]ceccecessceenececeeeeseeeeneeeesecsnecaeeaeecseeeaeeecesteeesseseseaeseseseeeeseensecaeeeseenees 183 State v. Bobo (Tenn. 1987) T27 S.W.2d 945 ooo ceecccccccsccecsceecceeceeeacecsecseecseeeseeseeasessesseseessaesessesesssesessessaeesseesees 178 State v. Ring (Az. 2003) 65 P.3d OVS oe eeceecceescceneceeeeeeseeescececeeeseenscnseceaecsaaeessesesessessecsecsaseeassecatesssenseenecess 167 State v. Whitfield (Mo, 2003) LOT SW. 3d 253 oooccccccccccccccesseccessecenseceesseseecececenssseccseessaccsecesseccsateesseesenseeensetersens 167 Stone v. United States(6" Cir. 1940) LS F.2d 70 veccccccccccsscsscscsecscsesecssesvssessessesscsacsresevsvevesevsssessetsevsevseesesevsvesrsavsseseneans 191 XXVIli Sullivan v. Louisiana (1993) S08 US. 275. eiccecccccccccececeseeceeseeeteeeeceseneeeessecsacecseeeeseeseeaesccestesessccnreventeesereenss 93,112 Sullivan v. United States (9"" Cir. 1969) ALA F.2d T14 ooo ceccccecceecceceeecenseeceeseeecenseeesececsecesseseesstsesseueceusesenescessesernsessnseeeeenss 120 Suniga v. Bunnell (9"Cir. 1993) 998 F.2d 664 ooeccccccccsccsscssesesssvsecsvssesecsavecsessessucsesavsevsussvesecevsesatsussneaveseeseeteaveneeveaeess 191 Thompsonv. California (9" Cir. 1996) . 109 F.3d 1358 occeeeeseceneceseeenceeeaeeeseceeseeeaeceeeseaeecsesesseeeaeeeseecesensserseseesssseeseneens 53 Thompson v. Oklahoma (1988) ABT US BLS Loci cecccceeeseceeecceteseeeeseececesaeccneceseeceseeeeessesesssecessuesessseersseeseesenseereeass 183 Townsend v. Sain (1963) 372 US. 293 oo eicccccccccccsececseceeseeecnsneceesececcsecssseecsseeasesceseeecesseceeasenscecsnestenserereaees 173 Tuilaepa v. California (1994) S12 US. 967ieeecece ceeeececeneneeseceeaseeenseceeeneceesseeeecssssaeeeensssssesecesenseeeees 152-153 United States v. Beattie (9" Cir. 1980) 613 F.2d 762 ooocecccccccccccssecsessesvsevevsecsesecececsesssssvsusseevsvesvevsasessneseasstsasatsusaestestaveveees 120 United States v. Booker (2005) S43 US. 220. eee cceee cee ceeececeneeeeneeeeesaaeeseeessneeseeeeaeeseaeeeecteessstecsececseaeeesaees 158,161 United States v. Frega (9" Cir. 1999) 179 F.3d 793 ooccccccscccceccessesssssevssessesesecsvssesressvssssresssesuesssesevensensevsavsreansataneateaseeseee 124 United States v. Marsh (9"Cir. 1998) [44 F.3d 1229 ooocccccccccccccecccsececcesecestcecsvesescititucvavstusestesvetestasetavavevavsaveescceeteececees 102 United States v. Mason (9"Cir. 1981) 658 F.2d 1263 oocccccccccccssseevssscscssessesssesessessessesusssesssavsecsscevsseavsessusereevsaversareaeeasaeens 120 United States v. Peterson (9" Cir. 1998) 140 U.S. 819ccccescscssessnessecssecsvsesessecavsnsecsavsusisetsusevevsevsvsevereavsusavavsevevensetaneees 81 United States vy. Rivera (10" Cir. 1990) 900 F.2d 1462 ooocccecccsccccsececcnsecessescseeessecensssessssrecesseesasssstvussnssessseseats 111 XXIX United States v. Shapiro (9" Cir. 1982) 669 F.2d 593 vovcceccsccccssssessessesessvsseessessevssesusssesecsvsasesisssesesevsevesssesessssesevene beste 19] United States y. Solivan (6" Cir. 1991) O37 F.2d L146 voecceccecccccccsssessssessesevessesessesasusssessesesssesavsesareevsevseseesaesevensuessesacsneaseaes 144 United States v. Tucker (1972) 404 U.S. 443oo cecccccccecececceceececeesaeeesceceseeeeaeescesesaeetsaeeseaneseseseensaeensereesereess veseeee 192 United States v. Wallace (9"" Cir. 1988) 848 F.2d 1464 oe ccccccccccsessecscssesesssesscsevssssecsessecsesesssessesavssessssesevsevavertsteeesnesees 111,189 United States v. Warren (9" Cir. 1993) O84 F.2d 325 voececcccccscsessessesessessessessecsecsesavsrssseenssessessesesseeseensesuesussesesseenesesseesees 125 Viereck v. United States (1943) B18 U.S. 236. ccccccececccesseecenesceeseeeecesseeecesseeetsasecsseeeessseescsesseessussesesseeeetsueesenees 143 Wainwright v. Witt (1985) A469 US. 412.eeecece cenceceneeseeeesaeesseeeesaevacecessessaecsucesseeeeseseesseeeeeeeseieeetieeeeates 133 Walton v. Arizona (1990) AOT U.S. 039. ccccccccecccccsceseceserecsceeeesneeeseecsusenecenaecessreesseeeesceaeeseseeteeenseesaeeees 156-157 Westbrook v. Milahy (1970) 2 Cal.3d 765 ooccceccccccccceccscceccsecccccesseccsceesaceceeseeadasecssseeececescsteeeseseccetsceeeeesensttsseesees 180 Woldt v. People (Colo. 2003) 64 P.3d 256 ooocecccccecccssecssnceecseeeescecseceaeeecacecseecesucesseseaeessseceeaaecesaeecesseecseeeeieeseeess 167 Woodford v. Garceau (2003) 538 U.S. 202iccccccccccctc ccc cccessseeecesseeececcecseeececcsseeceeseseeesesescessaseeeecesestsaeeecensaeees 103 Woodson v. North Carolina (1976) 428 U.S. 280... ccccccccccccsceenseccsscecsecesssessesecsssesseecenscsaeecsseesatecensecessaeeeeseeeenteeeas 171,186 Zant v. Stephens (1983) 462 U.S. 862... cccccccccccecsssecsssecssesseeeesseeeceseesseecesesseseseteaeeceesseeesseecstereeneeeess 186,192 AXX CONSTITUTIONS California Constitution Article I SECON SCVENLecce ccccccceccccceeseeeecesensuecessesssceesasseceeeseruasersessinecerenss 133,140 Section Fifteen .......0ccee ccc ceceeeccccesseceecensssesssesseseveversestseceesetaes $3,133,140 Section SiXteeM.......cc ccc ecesesseccesecsceseeeccssssesssscessssecesssnsecestseeeesereensaes 133,140 SectiON SEVENoo.eccceecceseesseeseeeseeeseseseeseeesseeseeceseecseecceeesecseeesseeses 140 United States Constitution Fifth Amendment .00.....00000ccccccceccccceescceeenscessecccesseevassesesscecccusreeeesneeeetteeeeees 151,178 Sixth Amendment .................. 57,75-76,79,81,83-84,88, 102,105, 119,121,123,125,127,132,143- 144,151,154,165-166,168,172,175 178,196 Eighth Amendment................-. 49,57,79,81,83-84,92,102, 104- 105,119-121,123,134,140,143- 144,149,151,154,168, 169,172 175-176,178,183-184,186-187 189,192-193,196 Fourteenth Amendment............. 52,57,75-76,79,83-85,92,94, 102 103,105,110-111,115,119,121 123,133,138,140,141,143,144 151,154,157,168-169,172,174 178-179,183,186,192-193,196 XXX1 TEXTS California Rules of Court Rule 4.420(€) cceccccccsssscssssssesssssssvesseesesesssstitesesesssssivessessstsstisessesssstisssssstessssssssveeeee 181 CALJIC NOS. 95-97,103 2.08 cececssscsssssssssvcvsseveccessssssessssssveesessesesnssemeessessissseessssssisssessesssstiesesisiesseaseseee 95-97 2.09 ..srreeceesessseseeeees sossesnseeeusnosseaseesnseesansisnseenneeenisatiinsseiassstnsssenisee 96-97,103 1sosvsenstisisisinninisneeseosssstusuavessssessiiesssessaneee 100-101 QT vccssevessssssssssssssssssssessssssuvecescsssassssussavevsesesssssssnisnsuesesesssessssassasesssessasiesseseee 100-101 104-109 ieccsssssssasussessssuveseessisassssusesesnsssssivesesessasiitessssssssiessssstsssssisiveesssesseseeed 54 B.8B.occccecccsssscsssesssssssssseessssessuseessassssssssvesseassssasssesessesssisssssssssisessssasecssesisveee 160,165 LAW REVIEWS AND JOURNALS Kozinski and Gallagher, Death: The Ultimate Run-On Sentence (1995) a 46 Case W. Res. L-Rev. Lo ooeecccecccccccececesseeneccesesecsececeseceseseeessecessresscnsssecsenersseesates 185 Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role ofthe Jury in Capital Sentencing (2003) 54 Alla. L. Rev. L090 eeeecceeceeeceeseeeneeeeeeeeeecseceeaecaecesaeeesesesscecsaesensesesessresaees 167 Soering v. United Kingdom: Whether the Continued Use ofthe Death Penalty in the United States Contradicts International Thinking (1990) 16 Crim. And Civ. Confinement 339 o.ooecceee ceeeeeeeeee 183 Amnesty International, “The Death Penalty: List of Abolitionist and Retentionist Countries” (Nov. 24 2006) Amnesty International website .......0...ccccceecccccccecseeeceeceseseecesececnecesenssevensteneesens 183 XXXIi - OTHER 1978 Voter’s Pamphlet, p. 34, “Arguments in Favor of Proposition 7.7 ...ecccceceeeeeecceeeseceesseeesneeeeeeseeensersseessees 149 Title 15, Calif. Code of Regulations, sect. 2280 0.0... ccccccecescccceessseeceesseeeeeceestseetenees 174 XXXill INTRODUCTION In this case, both the guilt and penalty verdicts are riddled with error. Appellant was convicted of a special circumstance, arson-murder, which was not applicable to his case. During the guilt phase, the trial court erred by dismissing a juror without good cause andin violation of Appellant’s constitutional rights. Additionally, prejudicial hearsay evidence, violating Appellant’s constitutional rights, was admitted into evidence without any cautionary instructions given to the jury. During the penalty phase,the trial court prejudicially erred whenit refused to declare a mistrial after the Jury had announcedthat, after several ballots, it was hopelessly deadlocked. Thetrial court erred by refusing to answer the jury’s question regarding what would happen if they failed to reach a verdict. Thetrial court improperly restricted Appellant’s attorney from conducting death qualification voir dire of the jury. The prosecutor committed prejudicial misconduct during his opening statement of the penalty phase. Appellant’s death sentenceis invalid because of the various constitutional infirmities of California’s death penalty law. Finally, Appellant’s death sentence was fundamentally unfair in light of the fact that the co-defendants, who had far worse criminal backgrounds, received a sentence of life-without-the possibility-of parole (hereinafter referred to as LWOP). Appellant asks that both the guilt verdicts and death judgmentbe set aside and that this Court remand the case for a newtrial. PROCEDURAL HISTORY On May20, 1998, the Los Angeles District Attorney filed an Information charging Appellant, Donald Ray Debose, Jr., and co- defendants Anthony Flagg and Carl Higgins, with the following crimes: the murder of Dannie Kim in violation of Penal Code section 187, subd. (a)’; the robbery of Dannie Kim in violation of sections 211 and 12022.7, subd. (a); arson causing great bodily injury in violation of section 451, subd.(a); anal penetration by a foreign object in violation of section 289, subd. (a); and genital penetration by a foreign object in violation of section 289, subd. (a). It was also alleged that during the commission of the robbery Appellant inflicted great bodily injury to Dannie Kim(section 12022.7, subd. (a)), and that he personally used a firearm during the commission of these offenses (sections 1203.06, subd. (a)(1) and 12022.5, subd. (a)(1)). Special circumstances were alleged: that the murder was committed during the commission of the crime of rape by instrument (section 190.2, subd. (a)(17)); that the murder was committed during the commission of the crime of arson (section 190.2, subd. (a)(17)); that the murder was committed during the commission of the crime of robbery (section 190.2, subd. (a)(17)); and that the murder wasintentional and involved the infliction of torture (section 190.2, subd. (a)(18)). (CT? 304-312.) Finally, Appellant was separately charged for the premeditated and deliberate attempted murder and robbery of Vassiliki Dassopoulos (sections 664, subd. (a)/187 and 211). As to these crimes, it was further alleged that Appellant inflicted great bodily injury (sections 12022.7, subd. (a); 1203.06, subd. (a)(1); and 12022.5, subd. (a)(1).) (lbid.) Appellant wasarraigned andpled not guilty to all counts and denied all allegations. Deputy Public Defender Michael Clark was appointed to represent Appellant. (CT 314.) On August 5, 1998, Mr. Clark declared that his office had a conflict, Judge Stephen O’Neil relieved the Office of Public Defender as counsel, and private attorney Bruce L. Karey substituted in as counsel for Appellant. (CT 366.) On October 19, 1998, Mr. Karey declared a conflict of interest in representing Appellant. Judge James Brandlin relieved Mr. Karey and subsequently appointed attorney James Hallett to represent Appellant. (CT 381.) On December 15, Mr. Hallett was relieved as counsel and attorney Richard Leonard was appointed to represent Appellant. (CT 385.) 'Unless otherwise specified, all references are to the Penal Code. *“CT”refers to the Clerk’s Transcript. 3 On March 29, 1999 jury trial began. (CT 585.) On May 13, 1999, the jury found Appellant guilty of murder and foundtrue the special circumstances of robbery-murder and arson-murder. However, the jury deadlocked as to the special circumstances of rape by foreign instrument and torture. The jury also found Appellant guilty of the other charged offenses involving Kim, but deadlockedas to the charges of anal and genital penetration by a foreign object. The jury found true the great bodily injury and gun use enhancements. (CT 680-684,1000-1004.) Co- defendant’s Flagg and Higgins’ were also found guilty of the same charges. (CT Supp.IIL, 299-301,311-313.) Finally, Appellant was found guilty of the attempted pre-meditated murder and robbery of Dassopoulos,andall allegations regarding those crimes were foundto be true. (CT 680- 684, 1000-1004.) On May17, 1999, the penalty phase began for Appellant and the co- defendants. (CT 805-806.) On June 2, 1999, after hearing the penalty phase evidence and arguments, the jury informed the trial court that it was deadlocked. After polling the jury, the trial court ordered them to continue deliberations. (CT 834-835.) On June 3, 1999, the jury returned a verdict of death for Appellant and LWOPfor the co-defendants. (CT 836-837, 1005; CT Supp.Il, 229A, CT SuppIII, 323-324.) On July 21, 1999, Appellant appeared for sentencing. The trial court denied Appellant’s motion to modify the sentence and reducethe penalty from death to LWOP. Thereafter, the court sentenced Appellant to death. (CT 955-957.) In addition, as to the crimes involving Kim,the court imposed the upper term of ten years for the gun use enhancement; a consecutive sentence of one year for the robbery conviction and a consecutive sentence of nine years for the arson with great bodily injury conviction. (CT 961.) As to crimes against Dassopoulos,the trial court imposed a consecutive term of life imprisonment for the attempted murder conviction; a consecutive term of four years eight months for the gun use enhancement and a consecutive one year term for the robbery. (CT 960- 961.) This appeal is automatic. STATEMENT OF THE FACTS A. GUILT PHASE 1, The Prosecution’s Case a. Summary The prosecution presented evidence that Appellant and the two co- defendants went to the Hollywood Casino where Dannie Kim,the victim, frequently gambled. According to the prosecution’s theory, all three defendants were watching Kim gamble and later followed her in her vehicle. Several hours later, Kim was discovered in the trunk of her burning vehicle after havingbeen shot.Shedied several dayslater. The evidence against Appellant was almost entirely circumstantial. The only alleged eyewitness to the actual crime, Willard Lewis, was a crack cocaine user whohad been convicted of multiple felonies, was facing a possible life sentence, and who,after having shared a jail cell with one of the co- defendants, and having access to law enforcement reports regarding the crime, came forward several months after the homicide and claimed to have witnessed the incident. In addition, the prosecution presented evidence of another incident whichinvolved the attempted murder and robbery of Vassiliki Dassopoulos, whoalso frequently gambled at the Hollywood Casino, and who was robbed and shot about one week after the Kim homicide. Although she identified Appellant as the robberattrial, she had previously picked out someoneelse as well in a photo lineup. The primary issueat trialwas the identify oftherobbers in both incidents, and, in particular, who wasthe shooter in the Kim homicide. //// ///1 [fT] //// b. The Kim Murder 1.) The Crime Scene Miah Richey, is the sister of Dannie Kim. On December 16, 1997, Kim wasvisiting Richey from Las Vegas when they decidedto goto the Hollywood Casino for lunch. (RT 1206, 1208-1210.) Afterwards both stayed at the casino and gambled. Theystayed in touch while at the casino using cell phones. Richey stated that she had loanedher cell phone to Kim. At around 11:00 p.m., Richey left the casino and went home, while Kim remained at the casino. (RT 1210-1212.) Kim did not come back to Richey’s housethat evening and did not call her to let her know where she was, which was unusual. Richey unsuccessfully called Kim several times. (RT 1214.) In an attemptto locate Kim, Richeylater called the casino, as well as a friend of hers who worked for the Los Angeles Police Department. (RT 1214-1216.) Rosemarie Howardlived in an apartment building located at 533 Osage Avenue in Inglewood, California, which was located across thestreet from Kelso Elementary school. (RT 1225.) On December 17, 1997,at around 5:00 a.m., she was tending to her son’s nose bleed, when she heard a woman speaking loudly in a foreign language, possibly Spanish. (RT 1225- 1226, 1235.) Subsequently, Howard heard approximately five gunshots coming from that area. (RT 1226.) About fifteen minutes later she heard an explosion. She looked outside her son’s bedroom window and saw smoke coming from car (later identified as Kim’s) near the school. (RT 1227-1228.) About five to ten minutes later, the fire department arrived and put out the fire. She observed one of the fireman open the trunk of the car. (RT 1231-1232.) Valerie Hutchinson-Gluck,a teacher at Kelso Elementary School, normally arrived for work between 6:15 and 6:30 a.m. (RT 1297-1298.) On December 17, 1997, while driving to the school she observed a person wearing dark baggy pants and a dark jacket standing outside of Kim’s car and leaning in the window.’ (RT 1300- 1304.) She then parked her car in the school parking lot and wentinto her classroom. Approximately five minutes later a student came in andtold here that there was a car on fire; the same student later came back and stated that there had been an explosion and that a body had been found inside the trunk of the car. (RT 1306-1308.) Firefighters and paramedics respondedto the scene around 6:30 a.m. - They observed smoke coming from Kim’s vehicle, a blue Chrysler Le Baron. The convertible top of the car had been burned off and the interior *In court, she identified photographsof clothing similar to the ones worn by the individual she saw on December 17". (RT 1304-1305) 8 was on fire. (RT 1249-1252.) After about ten minutesthe firefighters were able to put out the fire. (RT 1254.) At that point one of the firefighters observed through a hole in the back seat that there was a body in the trunk of the car. (RT 1255.) The trunk wasthen pried open and they found Kim. She had suffered extensive burns to her left side. (RT 1255, 1257- 1258,1334-1335.) However, she wasstill alive. An ambulance wascalled and aid was given. (RT 1256-1260, 1329-1331 After Kim was removed from the trunk of the car and put ona. gurney, it was discovered that she had gunshot wounds;twoin her torso area and onein her left arm. Kim was then transported to Martin Luther King hospital. (RT 1337-1340.) The next day, December 18" , Kim’s sister, Richey, received a call from Kim's husband, Bruce. At that time Bruce was inFlorida and asked Richey about Kim’s car having been abandoned. (RT 1216.) After seeing a report on television about the crime, Richey then called Detective Lawler and subsequently wentto the hospital to see if she could identify Kim’s body. (RT 1217.) Kim’s car waslater examinedby an arson investigator who concludedthat the fire started in the front seat floorboard area near the center console. (RT 1368.) The investigator believed that the fire was intentionally set by the use of an “ignition source,” such as gasoline. (RT 1371-1372.) At the crime scene, both in the trunk of the car and on the ground, police found bullet projectiles and casings. (RT 1262, 1266, 1385-1386.) Nearthe right passenger seat area the police recovered a burnt Hollywood Park casino chip. (RT 1389.) No comparable latent prints were found on the vehicle. (RT 1429-1430.) Detective Craig Lawler of the Inglewood Police Department was one of the investigating detectives. (RT 2527.) He arrived at the Kim crime scene and attempted to determine whowas the ownerofthe vehicle. He discovered that the car was registered in Washington State and that Kim and Kenneth Klundt were the registered owners. (RT 2528.) At that time he did not know the identity of Kim, so he contacted the Walla Walla, Washington police department and asked them to contact a family member, which they subsequently did. (RT 2529-2530.) Lawleralso took the partially burnt casino chip recovered from Kim’s vehicle to the Hollywood Park Casino and contacted Dan Stegemann, head ofsecurity for the casino. He then asked Stegemann to review videotapes from the casino’s surveillance cameras. (RT 2532- 10 2533.) In addition, Lawler showed a DMV photo of Kim to several casino employees who recognized her. (RT 2534.) Lawler subsequently received a call from Miah Richey on December 18, 1997. (RT 2535.) He then contacted her and her husband and showed the husband the DMVphoto as well as a photo of Kim takenat the hospital. (RT 2536.) Records of Air Touch Cellular, which wasthe cell phone company that Miah Richey used, showedseveral calls made on December 17, 1997, in the Los Angeles area. (RT2356-2358, 2363-2364.) Thefirst call was made at 5:22 a.m. Thecell sites that picked up these calls were located at South Western Street and Century Boulevard. (RT 2370-2375.) One of these calls was madein the general area of Hollywood Park. (RT 2377- 2379.) In addition, evidence was also introduced which showed that Kim’s Visa card waseither used or attempted to be usedat various gas stations in this same area during this time. (RT 1845-1852, 1860.) Finally, it was stipulated that Anthony Flagg lived about two blocks from Kelso Elementary school. (RT 2393.) 2.) Willard Lewis’s Testimony Willard Lewis, who wascurrently in custody, had several prior criminal convictions stemming from 1991 until March, 1998. These 1] convictions were for robbery, theft and drugs. (RT 1460-1462;1532-1533) Lewis admitted that he used and abused cocaine andpaid forit by stealing. (RT 1462.) He claimed, however, that he was a “functional smoker” of cocaine and could work while under the influence of drugs. Lewistestified that in December of 1997, he wasstill smoking cocaine, but asserted it did not affect his job performance at Cabbot, Lode and Associates, where he claimed to work as a senior associate doing financial arbitration. (RT 1463-1464.) According to Lewis, he was earning between $3,500 to $5,600 per month. (RT 1462.) On December 17, 1997, Lewis was scheduled to go to work at 7:30 a.m. Heleft his house at around 5:00 a.m., driving a 1981 Honda Civic,in order to find a “strawberry” and smoke cocaine. According to Lewis, a “strawberry” is a prostitute who will exchange sex for drugs. (RT 1464- 1465.) Around 5:15 a.m., at the corner of Century and Prairie Street, Lewis picked up a woman named Jasmine and they then droveto the area of Osage Street. (RT 1467.) After they parked, Lewis and Jasmine both smoked cocaine, reclined their seats all the way back, and engaged in oral sex. (RT 1536.) After about twenty minutes, Lewis stated that he heard someone arguing which caused him to look up. He claimed he saw an Asian womanand twoother 12 men, who he identified in court as Appellant and co-defendant Higgins. According to Lewis, the womankeptsaying “no, no, no.” (RT 1467-1468; 1497, 1502-1503.) During this time, Lewis kept lifting his head up and downso as not to be noticed. He observed the woman standing between the two men and claimed that Appellant had hold of her by the shoulder. (RT 1468, 1502-1503.) Aboutfive minutes later, Lewis stated he saw one of the men pull the woman back towards the car. (RT 1469.) Lewis then laid back down, heard a car door or trunk slam shut and then heard three to four gunshots. (RT 1469) Lewis stated that the gunshots came from the direction of where he had seen Appellant, who afterwards appeared to be tucking something away in his clothing. (RT 1552-1554.) Lewistestified that he also saw a shadow of what may have been a third person standing near where he claimed to have seen the other two men. (RT 1470-1471.) After hearing the gunshots, Lewis looked up and heard co-defendant Higgins say “come on, Don.” (RT1471-1472.) He then observed Higgins walk aboutfifteen to seventeen feet away from Lewis’s car. It was at that point that Lewis allegedly was able to see both men’s faces. Lewis believed that he and co-defendant Higgins possibly made eye contact. (RT 147, 1476) Lewis claimed that he and Jasmine stayed in the car for several more 13 minutes and then drove around the corner where Jasmine got out and called 911. (RT 1472.) After Jasmine madethe call, she left and Lewis drove around for about twenty minutes before coming back to the scene. When he came back he saw the samecaronfire and the fire department hadarrived. (RT 1476-1477.) Lewis nevertold anyone about what he saw that day until April of 1998, when he informedthejail chaplain, Steve Moss, that he had seen the person whosaid “come on Don,” and who was known as C-Crazy, in the county jail. (RT 1475-1476, 1552-1554.) Later, Lewis told Detective Lawler what he had seen andidentified both Appellant and co-defendant Higgins from photo lineups he was shown. (RT 1504-1507, 1509.) Lewis conceded that he did not actually see anyone get shot or set the car on fire. (RT 1525-1526.) Lewis admitted that one of the reasons he came forward washis hope of receiving a morelenient sentence. (RT 1523-1525.) Lewis testified that the current offenses to which he had pled guilty were commercial burglary and petty theft with a prior. He knew he wasfacing sentencing under the Three Strikes Law. According to Lewis, the judge told him that if he pled guilty he would receive ten years in prison and that the trial court was goingto strike a strike; however, if Lewistestified 14 truthfully, the court would consider giving him a sentenceofless than ten years. (RT 1548-1551.) He also admitted that he was in the same cell with co-defendant Higgins, but denied looking at any papers that co-defendant Higgins had in his possession. (RT 1529-1530.)* Stephen Mosswasa volunteer chaplain at the Los Angeles County Jail. Around June or July of 1998, Willard Lewis told him that he had witnessed a murder. (RT 1568-1569.) Lewis stated that he was with a prostitute, named Jasmine, in January of 1998, and that they were across the street from a gamblingplace in Inglewood, California, when Lewis saw someone shoot a female in a car. (RT 1572-1573,1576.) Lewis claimed he could identify both men and that one of them he had seen in jail. (RT 1573.) Moss then contacted Detective Lawler andtold him what Lewis had stated. (RT 1575.) 3.) Forensic Evidence a.) Alleged Sexual Assault and Autopsy Evidence Chris McClung, a sexual assault nurse, examined Dannie Kim while she wasin the hospital. McClung observed swelling in the Kim’s vaginal “Lewis also testified that at trial, during a recess, Appellantsaid something to the effect of “I’m going - smoke you bitch.” (RT 1497-1503.) The bailiff, who was present during this incident, testified that he heard Appellant say “smoke you” to Lewis. (RT 1584-1585.) 1S area which she opined demonstrated a strong possibility of sexual assault. (RT 2058-2078.) McClung also examined Kim’s rectal area and observed multiple tears that showed, in her opinion, penetration of the rectum. (RT 2078-2090.) However, a police criminalist also examined the sexual assault kit done on Kim, as well as her clothing, and found no sign of semen. (RT 2138-2142.) An examination of Kim’s vehicle for blood, semen or trace evidence revealed nothing. (RT 2259-2260.) Kim lived for about five days after the incident. (RT 2461.) The pathologist who performed the autopsy opined that 50 to 55% of her body was burned, including her legs, face and hands. Asa result of these burns, her right leg was amputated. (RT 2443-2449, 2461.) The pathologist also observed a pre-mortem fracture of the clavicle. (RT 2449-2450.) In addition, he noted injuries in both her vaginal and anal areas which he believed were consistent with a sexual assault. (RT 2456-2459.) The autopsy also revealed two gunshot entrance wounds, one in the back of the left shoulder, and onein the top of the left shoulder. (RT 2435- 2437, 2439-2440.) One of the bullets was recovered. (RT 2431-2435, 2440-2443.) The cause of death was believed to be multiple gun shot wounds and multiple thermal burns. (RT 2459.) 16 b.) Casino Videotapes Anthony Cato, a police officer with the Los Angeles Police Department, received a video tape from the Inglewood Police Department on January 6, 1998. While reviewing the tape he recognized a person knownas “C-Crazy” and whom heidentified as co-defendant Higgins. On January 8, 1998, he assisted in the arrest of Higgins. (RT 2511-2514.) Detective Lawler also viewed the video tapes from the casino. He wasable to identify Kim andthe times that she was there. (RT 2538-2539.) The tapes showedthat when sheleft the casino three other people left around the sametime using a different door. (RT 2540, 2543.) One of these three was wearing a navy coat with a light collar, who Lawler identified as Appellant. (RT 2543.) Another person was wearingall black, who Lawler identified as co-defendant Flagg. The third person Lawler identified in the video tape was co-defendant Higgins. (RT 2544.) Dan Stegemann wasthe head ofsurveillance at Hollywood Park Casino. Stegemann had previous experience working surveillance in other casinos. (RT 2618-2635.) He planned andinstalled the video surveillance at the Hollywood Park Casino. This involved having a video camera over every gaming table which could pan andtilt as well as zoom in-and-out. There were also video cameras located outside the casino in the parking lot 17 areas, but those were operated and controlled by casino security which was not his department. (RT 2637-2640.) Stegemann testified that there was a VIP parking lot that was reserved for regular players and can only be entered by using a key card. (RT 2665.) Stegemann described the interior of the casino and noted that one area was just for poker games. Each pokertable is separately numbered. (RT 2646-2649.) Each table also had a numbered seat. (RT 2657-2658.) The poker gamesvaried from small betting games to games with no limits. The area where the big games were played is called the Pegasus gaming area. (RT 2646-2651.) Stegemann wasaskedby the Inglewoodpolice to review video tapes from December 16-17, 1997, after being informedof a possible “follow- home”robbery, which is where a suspect follows the person from the casino to their home and then robs them. (RT 1912-1913, 2663-2665.) Stegemann knew who Dannie Kim wasas she had played numerous timesat the casino. Hestated that Kim also played with other high caliber gamers in Las Vegas. (RT 2661-2662.) After looking at the video tapes, Stegemann was able to verify that Kim wasplaying in the Pegasusarea of the casino the day of the incident. (RT 2566-2568.) He also viewedthe security tapes from 18 the outside parking areas and wasable to identify Kim’s car enter the VIP parking lot. (RT 2669-2675.) After reviewingall of the video tapes, he made a composite tape as well as a flow chart, which showedwhereall three suspects were during the time they and Kim werein the casino. It also showed the vehicles that Kim and the suspects were driving. (RT 2687-2689, 2696-2702.) This composite videotape, which wasplayed for the jury, showed Kim’s vehicle entering the VIP parking lot. (RT 2709.) At 10:57 a.m. she went to play tn the Pegasus area. (RT 2709.) At 11:08 a.m., she wentto poker table number five and sat at seat numbernine. (RT 2709.) At 7:36 P.M., she then went to poker table number nine. (RT 2710.) At 12:14 a.m., she then went to poker table number seventeen and sat at seat numberfive. (RT 2710.) At 12:21 a.m., she went to poker table number thirteen and played. (RT 2710.) According to Stegemann, at 2:24 a.m., what he described as the suspect vehicle, entered gate numberfour in the west parking lot, which faces Century Boulevard. (RT 2712.) At that point, three individuals were seen walking from the vehicle towards the casino. Thefirst suspect was wearing a blue jacket with a white collar. The second suspect had a shaved 19 head and was wearing a long black jacket. The third suspect was wearing a brownjacket. (RT 2713-2714.) At 2:37 a.m.all three suspects were seen on the video at pokertable numberseventy-one. (RT 2719.). Shortly thereafter, they all went to separate tables. (RT 2719-2720.) During the entire timeall three suspects were in the casino, Kim was gambling at table numberthirteen. (RT 2721.) At one point, the first suspect sat downat a table close to where Kim was gambling. (RT 2724-2725.) Later, the second suspect went over to where Kim wasplaying and appeared to be watching the game. (RT 2725-2727.) According to Stegemann, the video did not show anyof the suspects gambling, although he could not say for sure whether they did nor did not gamble. (RT 2721, 2831, 2865.) Kim wonseveral hundred dollars gambling. During that time suspect number two waslookingat the table where Kim wasplaying. (RT 2727-2732.) At 3:47 a.m., according to the videotape, Kim wentto the cage area to cash in her chips. Aroundthat same time,all three suspects met up in an area approximately 100 feet from the cashier’s cage. (RT 2732-2735.) Kim cashed in some of her chips, which totaled $1900.00. (RT 2736-2743.) At that point, all three suspects left the casino. Next, Kim left the casino through the VIP doors. (RT 2743-2749.) 20 'Kim’s car was observed on the videotape backing out of her parking space at around 3:53 am. According to Stegemann,the suspect vehicle, a Ford Taurus, was then seen pulling into the valet parking area. (RT 2749- 2758.) Kim’s car then went towards gate numberfour, followed by a _ taxicab, followed by the suspect vehicle. Kim’s car waslast seen turning — onto Century Boulevard followed by the suspect vehicle. (RT 2759-2761.) Under oath, Stegemann admitted that he could not say who was driving the suspect vehicle or how many people werein it. (RT 2821-2823.) C. The Dassopoulos Attempted Murder and Robbery Vassiliki Dassopoulos, known as “Billie”, was also a professional card player who gambled at the Hollywood Park Casino. On December22, 1997, she wentto the casino around 6:30 p.m. and parked in the VIP parking lot. She entered the casino through the VIP door and gambled until approximately 5:00 a.m. She wona total of about $4,700 and cashed in around $2025 of it, which she placed in her purse. (RT 1448-1753, 1808.) After cashing out, she wentto the bathroom,left the casino and got into her car, a Toyota Corolla. She then drove back to her home in Rancho Cucamonga. Whenshe arrived home, it wasstill dark outside. She opened her garage door with her remote control and then drove into the garage. (RT 1757-1759.) 21 Dassopoulos turned off the engine and car lights; however the garage door light remained on. After she put her keys in her purse, she saw a person wearing a dark jacket and a knitted cap, whom she identified in court as Appellant, grab the driver’s door. (RT 1759-1760, 1766, 1770.) According to Dassopoulos, Appellant started to pull her out of the car. As he did so she honked the horn and tried to get her keys. (RT 1760-1761.) Finally, the man, who had appeared to be angry, grabbed her by the head and pulled her out of the car. (RT 1762-1763.) At that point, Dassopoulos began to struggle with him, and saw that he had pulled a gun from his waist band area, which she attempted to take away. Then, the garage door light went off. (RT 1764-1765.) As she continued to struggle with him, he placed the gun to her neck, shot her and took her purse. (RT 1767-1770.) After being shot, she fell to the floor and saw the man looking at her before she passed out. (RT 1770-1771 .) When she came to, she managed to crawl to the garage door, stuck her head outside and began yelling for help. (RT 1771-1773.) A few minutes later the paramedics arrived and she wastaken to the hospital. (RT 1773.) As a result of the gun shot wound she lost one of her vocal cords. (RT 1775.) 22 On January 8, 1998, she was shown a photo lineup with six pictures. She identified the person in photo numberthree as the robber. (RT 1775- 1777.) Dassopoulostestified that the gunman did not have anyfacial hair and was about 5'11" in height, although she admitted that while in the hospital she may have told a detective that he was 5'6" tall. (RT 1801- 1803.) She also admitted that when she was shownthe photo lineup none of the individuals in the pictures were wearing hats; rather, she used a piece of paper to coverthe hair of the men in the photographs. (RT 1804.) She also never attended a live lineup. (RT 1806-1807.) She stated that she did not see anyone else besides Appellant at her residence on the night of the robbery, although she was shownanother photographic lineup containing a photograph of another suspect (Derrick Grey), but was unable to pick anyone out. (RT 1810.) On December 23, 1997, at around 5:47 a.m., Mike Redmond,a fire captain for Rancho Cucamonga, respondedto a call of an injured female at 9858 Solazzo Drive in Rancho Cucamonga,California. (RT 1720-1722.) When Redmondarrived at the residence, he saw an ambulance there and medical personnel attending Dassopoulos, who waslaying in a pool of blood with what looked like a head or neck injury. (RT 1723-1725.) 23 Ernie Kopasz, a deputy sheriff with San Bernardino County Sheriffs department, showed Dassopoulos a photographic lineup containing six pictures. He read her the standard admonition regarding a photographic lineup. Appellant’s photo was numberthree in the lineup. (RT 1812- 1813.) According to Kopasz, Dassopoulos was confused by the hairstyles worn by the persons in the photographic lineup. (RT 1815.) Dassopoulos eliminated the persons shownin photographsone, two four and six. She then told Kopasz that the suspect was either photograph numberthree or photograph numberfive. (RT 1815.) She also told him that the suspect was possibly 5'6" in height and could not rememberif he was wearing a jacket at the time of the robbery. (RT 1816.) Records show that a Bank of America card in the name of Dassopoulos was usedat the Texaco gas station located at 3100 West Manchesterin Inglewood, CA in Decemberof 1997. (RT 1839-1843.) A Visa statement of Dassopoulos showed that two charges were made on her card on December23, 1997 at 4:10 p.m. and 6:32 a.m. (RT 1855-1859.) According to Stegemann, Dassopoulos and her husband werealso regular gamblers at the Hollywood Park Casino. (RT 2662-2663.) Stegemann reviewedthe surveillance video the night that Dassopoulos was 24 robbed. According to the composite video that he prepared, there were two suspects observedat the casino the evening, Appellant and Derrick Gray. (RT 2766-2768.) Stegemann related that on December 22, 1997, at around 7:19 p.m., Dassopoulos’s car entered at the parking lot and a few minutes later she then entered the casino through the VIP doors. (RT 2770-2771.) She then went to table fifteen, where she gambled for several hours. (RT 2772.) Sometimeafter 4:00 a.m., the same suspect vehicle that was seen in the Kim incident, a Ford Taurus, entered the parking lot of the casino. (RT 2773-2774.) Around 4:10 a.m., Appellant, who according to Stegemann, was wearing the samecoat as on the night of the Kim incident, was seen in the video walking from the west parking lot, followed by Derrick Gray.° enter the casino and proceededto the Pegasus area, where Dassopoulos was gambling. (RT 2776-2777.) According to Stegemann,during this time both suspects were seen looking towards the table where Dassopoulos was gambling. (RT 2785- 2788.) The videotape showedthat at around 4:40 a.m., Dassopoulos cashed out her chips, placed the moneyin her wallet and entered the bathroom (RT 2789-2793.) When she came back out, both suspects were seen together *Detective Lawler also reviewed the videotapes from the Casino and identified an individual wearing a brown jacket as Derrick Grey who waslater 25 talking and then leaving the casino via the south doors. (RT 2793-2794.) However, both men re-entered the casino as Dassopoulos was going out the VIP doors. (RT 2795-2796.) Both suspects also then left, and got into their vehicle. (RT 2797.) According to the videotape, Dassopoulos’s car waslast seen exiting the VIP parking lot, and then turning right on Century Boulevard. A few secondslater the suspect vehicle was observed going down Century Boulevard in the same direction. (RT 2798-2799. d. Subsequent Investigation and Arrest ofAppellant Phrashant Patel worked as a managerat the La Mirage Hotel located at Hawthorne and Imperial Highway. Heidentified hotel records which showed that Appellant had registered at the hotel from December 22 through December 24, 1997, and gave his home address as 1101 W. 58" St, Los Angeles, California. (RT 1597-1599.) The records revealed several phone calls were made from that room to other numbers in the 213 area code. Oneofthe telephone calls was to a Gwendolyn Flagg. (RT 1599- 1601, 2578.) Patel also identified a record that showed a person named Donald Jessie register at the hotel on December 19, 1997, and left on December 20, 1997. This person gave an address of 1255 W. 60"Street in arrested on January 6, 1998. (RT 2580-2583.) 26 Los Angeles and had the same drivers license numberasthat previously given by Appellant. (RT 1602-1603.) Detective Michael McBride of the Inglewood Police Department went to the La Mirage Hotel on December 25, 1997, met with Patel and _ discovered that Appellant had been staying in room number 321. (RT 1613-1616.) McBride began surveillance of Appellant’s room and observed a heavyset black female, later identified as Crystal Johnson, leave the hotel room around l 1:30 a.m. and get into a taxi. Mc Bride then instructed other officers to arrest Ms. Johnson. (RT 1618-1620.) Jaime Hernandez, a police officer with the Inglewood Police Department, also worked security at the Hollywood Park Casino. (RT 1626-1628.) On December 25, 1997, he was workingat the casino in the surveillance room. While watching the camera monitors he observed Appellant with another individual. Hernandez then contacted the detectives working the case. Hernandez wasinstructed to go outside and look for a red vehiclein the parking lot. (RT 1628-1632.) Hernandez went to a security booth located in the parking lot when, around 1:00 a.m., he was informed that the other person who Appellant was with hadleft the casino. That person, later identified as Shondell Jones, entered the passengerside of ared Ford Taurus. Around 4:00 a.m., Appellant left the casino, got into the 27 driver’s seat and was then arrested. (RT 1635-1639, 1642-1643, 2585- 2586.) A .380 caliber gun was recovered from underthe right front passengerseat of the red Ford Taurus. (RT 2593.) Test firings done from that gun matched the expended casings and bullets recovered from both the Kim and Dassopoulos crime scenes. (RT 1871-1880, 1880-1888, 1914, 2559.) During the booking process a Visa card in the name of Dassopoulos, a motel key from room number 321 of the La Mirage hotel and a cell phone (not Kim’s) were recovered from Appellant.° (RT 1621-1623, 1906, 2605.) 2. The Defense a. Impeachmentof Willard Lewis Lewistestified in the defense case that he first appeared in superior court for arraignment on May 13, 1998 and pled guilty on October 22, 1998. Thetrial court at that time stated that he would be facing a maximum of ten years in prison but the sentence could be reduced if he cooperated and testified for the prosecution in Appellant’s case. (RT 2941-2951.) ° Attrial, Dassopoulos identified the Bank of America card that was in her purse when she was robbed. (RT 1775.) 28 Charles Cervantes was the deputy public defender whofirst represented Lewis. (RT 3203-3203.) According to Cervantes, Lewis had been charged with petty theft with a prior. Because ofhis prior convictions, under the Three Strikes law, Lewis was facing a potential sentence of twenty-five-years-to-life imprisonment. (RT 3204.). When Cervantes informed Lewis that he was facing a life sentence, Lewis became concerned. (RT 3204). Cervantes tried to find a deputy district attorney or judge that was willing to strike some of the prior convictions, so as to lessen the potential sentence, but was unsuccessfill (RT 3205-3208.) Cervantes appeared with Lewis at his arraignment in superior court on May 13, 1998. Prior to that date, Lewis had never told Cervantes that he had witnessed the Kim murder. (RT 3209-3210.) At the time of the arraignment, Lewis appeared to be more desperate. (RT 3212.) On May 20, 1998, Lewis called Cervantes and told him that he had information about a well-known murder case and wanted to know ifit would be of benefit to Lewis. (RT 3213.) When Lewis beganstating some of the facts, it sounded familiar to Cervantes and he realized that his office wasat that time representing one of the defendants. (RT 3214.) Contrary to his trial testimony, where he claimed that he went to work that day, Lewis told Cervantes that on December 17, 1997 between -29- 5:30 a.m. and 6:00 a.m., he was parked on Osagestreet and wasplaying hooky from work. (RT 3216.) He had some drugs, was looking to obtain some sexual favors, and subsequently picked up a prostitute by the name of Jasmine. Lewistold himthat he heard what he thought wasanargument and saw three men and a girl. (RT 3216-3217, 3233.) Lewis claimed he recognized two of the men,and stated that one was named Carl Higgins. About four minutes later he heard four gunshots. Lewis never stated that he saw either suspect shoot the woman. (RT 3218.) He waited anotherfive to ten minutes and then left the area. (RT 3218-3219.) Lewis never told Cervantes that he saw the car, which he described as a green colored Le Baron,on fire that day. Rather, he stated that he had driven right up to the. car, looked at it and saw that no one was around. (RT 3222-3224.) Lewisstated that it was co-defendant Higgins, who he also knew as “C-Crazy’’, that he saw coming towardshis car. (RT 3219.) Lewis did not tell Cervantes that he had been housed in the same cell as co-defendant Higgins. (RT 3220.) After this conversation, the Public Defenders office was required to declare a conflict because they were representing one of the defendants. (RT 3222.) Lewis was appointed a new attorney by the name of Welbourn. -30- Lewistestified he asked Welbourn if his sentence would be reducedif he testified. (RT 2973-2975.) On January 28, 1999 Lewis wassentencedto nine years in prison. According to Lewis, attorney Welbourn asked the court to consider recalling the case for re-sentencing after Lewis testified. (RT 2976-2980.) Lewis was awareof the procedure for recalling a case for re-sentencing as he had madesuch a motionin 1993 but that motion was not granted.’ (RT 2981-2985.) Records from the Los Angeles County jail showed that Lewis and co-defendant Higgins were housed in the same module and shared the same cell between May 4, 1998 and May 14, 1998. (RT 3023-3027.) Co- defendant Higgins was an inmate worker which allowed him to go to and from his cell. Inmates can keep documents in their cell which are subject to being viewed by other inmates. (RT 3027-3030.) Erskine Richmondis a corrections agent whosent co-defendant Higgins a report which provided details regarding the Kim murder. The ’Thetrial court also read to the jury the provisions of Penal Codesection 1170, subd. (d), which authorizesa trial court to recall and re-sentence a defendant ninety days after being sentencedto state prison. In addition,thetrial court informed the jury that it had handled Lewis’s case from arraignment through sentencing. (RT 2993.) -3]- report included the names of Appellant and co-defendants Higgins and Flagg, and it also noted that they were seen at the casino at the same time as Kim. In addition, this report provided details including the location of the incident, the time that it occurred and other information. (RT 3001-3006.) Richmond talked to co-defendant Higgins in the county jail about a month later, and based upon that conversation, believed that co-defendant Higgins had received the report he had sent him. (RT 3006-3012.) Stephanie Boyce worked for Cabot, Lodge and Associates and knew Willard Lewisas a friend of Boyce’s cousin. (RT 3118-3119.) According to Boyce, Lewis was not employed asa seniorfinancial agent as he | claimed; rather, he was a sales agent whosolicited business for the company. (RT 3119.) Lewis worked for the company for about three months, starting in November of 1997 and ending around January of 1998. After that he did not return to work. (RT 3121-3122.) Initially, when he first began; Lewis went to work every day. However, he would later disappear for days and not 20 into workat all. (RT 3125.) According to Boyce, Lewis did not have any children in college, and in December of 1997, did not owna car. (RT 3126-3127.) He got possession of a 1991 Honda Civic in January of 1998. (RT 3127.) The -32- total amount of money that Lewis was paid was $1055.52. (RT 3128) Lewis was never paid $3500 to $5000 in any period. (RT 3124.) | b. Defense Expert Testimony Rebutting Sexual Assault Evidence Dr. Earl Fuller was a medical doctor who specialized in obstetrics and gynecology. He reviewed the forensic evidence and believed that there had not been a sexual assault on Kim. (RT 3046-3047, 3049.) He opined that the tears in her anus mostlikely came from rectal thermometers used to take her temperature while she was in the hospital. (RT 3049-3050, 3054.) He also believed that the vaginal injuries could have been caused by wiping of the area by medical personnel, the insertion of a catheter and burn injuries in the vaginal area. (RT 3056-3058, 3061-3063.) Finally, Dr. Fuller stated that the fractured clavicle could have been caused by Kim thrashing around in the trunk of the car after she had been placed there. (RT 3073-3075.) C. Appellant’s Alibi Terri Casey had known Appellant, who goes by the nickname of “Boo,” since September of 1997. (RT 2910, 2917.) She met Appellant on the telephone when he wasat a friend of her’s house. (RT 2932-2934.) About a week after was when she met Appellant in person. (RT 2935.) She -33- acknowledged that she and Appellant were dating in Decemberof 1997. (RT 2924.) On December 17, 1997, at about 4:30 a.m., she received a page from Appellant,who hadgiven her the pager a month earlier. (RT 2910- 2911.) Prior to her receiving the page, she wasat her son’s grandparent’s home,visiting and drinking. She hadarrivedat their house about 9:00 p.m. (RT 2923.) Casey called the number displayed on the pager and Appellant answered the phone. After talking for a while, she went and picked him up at the corner of 135" and Prairie. It was about 5:00 a.m. when she met up with him. Appellant was by himself at that time. (RT 2912-2913.) Casey took Appellant to his house which was located on 58"Street in Los Angeles. She dropped him off at about 5:20 a.m. (RT 2914.) She remembers the date because it was a week before Christmas. Casey later learned of Appellant’s arrest while watching the news ontelevision. (RT 2915-2916.) Casey admitted that she talked to a defense investigator on the telephone by the name of Joe Brown around March 9, 1999, (RT 2919- 2920.) She did not tell Brown that she remembered the incident becauseit occurred a week before Christmas, although she does not believe that Brownaskedherthat particular question. (RT 2920-2222.) She did not tell Brown that she left to pick Appellant up at 4:30 a.m. (RT 2927.) She -34- later stated that she believed that she did tell Brown the time but admittedit wasnot in his report. (RT 2936-2937.) Casey denied knowing anyone by the name of Tonica Harris. (RT 2926.) d. Co-Defendant Flagg’s Alibi Carolyn Jackson, whoat the time of her testimony, was in custody on a drug charge, observed a vehicle on fire in December 1997 near the Kelso Elementary School. (RT 3154-3158.) Jackson stated that she was the person whocalled 911 to report the fire. (RT 3161.) She told the police that she saw a tall light complected man wearing a blue jacket and tan pants walk past the car. (RT 3162-3164.) She stated that she first saw the man walking with a short and stubby-looking light complected black woman who wasabout 5'3"tall.® (RT 3164, 3176.) Several minutes later she saw the man walking alone, and shortly thereafter she saw the car on fire. (RT 3165, 3172-3173.) Jackson could not identify for police the person she sawnearthecar. She was unable to pick anyoneout, including Appellant, in a live lineup or photo lineup. (RT 3170, 3174-3177.) Gwendolyn Flagg, co-defendant Flagg’s mother,testified that on the evening of the Kim murder, her son wasat her house. She last saw him at * Testimony established that Crystal Johnson was a black woman who was light skinned. (RT 3257.) -35- 6:30 p.m. with her daughters. (RT 3181-3182.) He left the house but came back between 5:00 a.m. and 5:30 a.m. She knew that because he had post- nasal drip and she heard him making nasal soundsat that time. (RT 3184.) Shortly thereafter, she heard shots and a few minutes later heard helicopters overhead. She stated that was when she actually saw her son in the house. (RT 3185, 3191.) 3. Prosecution’s Rebuttal Joe Brown,an investigator for Appellant, interviewed Terri Casey. (RT 3280-3281.) Casey did not tell Brown whatdate that she had picked up Appellant. However, she did state that it was the same date that an Asian woman was killed. (RT 32 83.) Casey told Brown that Appellant had been at Tonica Harris’s house, and that he paged her from Tonica Harris’s house but had left. (RT 3283-3284.) Brown recognizedthat his written report did not indicate that Casey told him the exact time she received the page from Appellant, but this information wasin his notes. (RT 3285-3286.) Brown also does not remember Casey making any reference to Christmas when he interviewed her. (RT 3286.) Caseytold him that the last time she saw Appellant was that night. (RT 3288.) -36- Tonica Harris testified that in December of 1997 Appellant came to her house on a Saturday sometime before 8:00 a.m., which is when she goes to work.” (RT 3291.) Detective Lawlertestified that the Inglewood Police Department does not have a helicopter and that they have to use a helicopter that belongs to the Los Angeles Police Department. (RT 3294.) When Lawler first arrived at the crime scene on December17, 1997, there were no: helicopters. Helicopters from various newsstations did arrive on the scene at a later time. (RT 3295-3297.) B. PENALTY PHASE 1. The Prosecution’s Case a. Victim Impact Evidence Bruce Galbreath was the husband of Dannie Kim. Hefirst met Kim in Oregon and they later moved to Utah and they were married in 1995. (RT 4535-4537.) Galbreath, who wasa truck driver, first became aware that something had happened to Kim when he wasin Florida. At that time he only knew that she had been shot but waslater told that she had been put in the trunk of a car and the carset afire. (RT 4538-4540.) ” The trial court took judicial notice that December 17, 1997, was a Wednesday. (RT 3293.) 37- Galbreath went to see Kim at the hospital but barely recognized her. He attempted to talk to her but she could not respond. He stayed at the hospital until she died.. The funeral was about 10 to 11 days later. (RT 4541-4542.) Galbreath identified a photograph of her grave. (RT 4542) After the funeral Galbreath was unable to return to work right away. He thinks about Kim when heis alone. (RT 4543-4544) Han Kim wasthe youngerbrother of Dannie Kim. Han was originally from Korea but later moved to the United States because both his sisters, Dannie and Miah Richey, lived here. (RT 4545-4548) Han was close to Dannie. A few weeksbefore the crime she had given him money because she always shared everything she had with him. (RT 4549-4550) After Dannie was shot, Han went to the hospital with his sister Miah but, because of the burns, could not recognize Dannie. He later learned that her leg had been amputated. Her death has made Han constantly worry as there are many black homeless people where he works. (RT 4551-4554.) Miah Richey, Dannie Kim’s sister, read a statementthat she had written. Miah related how Dannie had died three days before Christmas and had never got to open her Christmas presents. At the hospital, Miah related how Dannie cried out “no, no, no” - and wondered if those wereherlast 38. words. Miah related how she watched hersister hang on to “life for five days of pure hell.” (RT 4561.) Miahstated that she “felt her bullet and can still smell her burnt body and it still haunts me with countless nightmares.” (RT 4561.) As a result of Dannie’s death, Miah haslost faith in life and God and fell into a deep depression. Miah felt completely lost, could not return to work, could not function without medication and wasafraid to take go outside. (RT 4562.) According to Miah, it took her a year to rebuild her physical health. She wasstill under a doctor’s care and was taking medication for anxiety despite her being pregnant. According to Miah, Dannie wasa tender and soft-hearted person. (RT 4562-4563) Miahfurthertestified stated that Dannie had two children from a previous marriage, and identified a picture of them. (RT 4556-4558.) Miah stated that the older child was angry at Dannie when he was youngerbut now, as a result of her death, has feelings of guilt and is in therapy. (RT 4559) Miahrelated that she is the oldest in her family, and was kicked out of her parents’ home because she would protect her siblings from beatings, as well sexual and emotional abuse. (RT 4559-4560, 4564) She moved to the United States and Dannie followed her a few years later. Together they -39- brought their brother, Han, to the United States. (RT 4565-4566.) Miah was the one who had to makethe funeral arrangements for Dannie. She identified a photograph which showedherfather at the funeral facing away from her grave. (RT 4567.) Miah stated that at Dannie’s funeral she promised her that she would take care of Dannie’s children. (RT 4569.) b. Aggravating Evidence Against Appellant 1.) Jail Incidents Evidence that Appellant had twice possessed a shank and been involved in an altercation while in custody at the Los Angeles Countyjail was introduced. On June 29, 1998, a deputy workingat the jail observed Appellant, and another inmate named, Griggs, arguing. (RT 3857.) The deputy overheard Griggs say “Just drop it, fool, and we can do it.” Appellant then respondedby saying “Just chill man. We'll handle it when the police leaves.” (RT 3858) At that point both were told to stop arguing and lie down on the floor. However, they continued to argue and additional deputies were called to the scene. Both Griggs and Appellant were then required to lay downonthe floor. (RT 3859.) _AQ- Ashe was being led away, Griggs shouted that Appellant had a shank and that Griggs was going to defend himself. (RT 3860-3861.) Appellant was subsequently searched and a shank, which appeared to be made from a broom handle, was found in Appellant’s waistband. (RT 3861.) On September 2, 1998, a deputy observed several inmates, including Appellant, in a fighting stance. Appellant and another inmate were then ordered to lay down onthe floor. The deputy overheard Appellant say to the other inmate that “This shit ain’t over, yet.” The other inmate replied “Well, bring it on.” (RT 3848-3850) The deputy did not actually see any fight, although he observed that Appellant’s hand appeared to be swollen. (RT 3851-3858.) On Feb. 12, 1999, while conducting a search of Appellant’s cell, a piece of sharpened metal wrapped with a cloth handle was discovered underneath a mattress. (RT 3837-3840.) The shank waslater destroyed but a photocopyofit was introduced into evidence. (RT 3840) The deputy who found the shank admitted that shanks are commonly foundin the Los Angeles County jail and can be used for either offensive or defensive purposes. (RT3842.) //// -Al- 2.) GunIncident On March 30, 1994, while on patrol, Los Angeles police officers heard three gunshots. They then observed Appellant and another black male running. (RT 3880-3381) Appellant, who appeared to have something in his hands, was seen running into a parkinglot and the police pursued him. (RT 3881-3882.) Appellant attempted to climb a fence but was unable to do so. He bent down anddiscarded something under a trash dumpster. (RT 3883- 3884.) Appellant was ordered to put his hands up and wasthen taken into custody. Police recovered a .25 caliber semi-automatic handgun underneath the dumpster. (RT 3884-3885.) Appellant identified himself to the police as Timothy Hawkins. Three rounds were found in the weapon. (RT 3884- 3887.) C. Aggravating Evidence Against Co Defendant Flagg Evidence was introduced regarding three robberies committed by co- defendant Flagg. Thefirst robbery occurred on March 27, 1989 when Flagg approachedthe victim and forcibly took his wallet. (RT 3914-3916, 3934- 3935.) The second robbery occurred on March 28, 1990 when the victim picked up Flagg, and Flagg subsequently pulled a gun, hit the victim and robbed him ofhis vehicle. (RT 4073-4076, 4309,4316, 4320-4321.) The -42- third robbery occurred on November 15, 1991, when Flagg and another individual robbed the victim at gunpoint andstole his gold chain and wallet. (RT 3950-3954, 3983, 3990, 4014-4015, 4061.) d. Aggravating Evidence Against Co- Defendant Higgins Evidence waspresented that in March of 1993, a shank was foundin the county jail cell which was occupied by co-defendant Higgins. (RT 4092-4094, 4096) Evidence wasalso presented regarding co-defendant Higgins convictions for two counts of voluntary manslaughter.'” These convictions ~ involved a gang attack on one of the victims, Stephen Pope, who was stomped and shot to death. (RT 4112, 4115.) A witnesstestified that the area where the incidents occurred was claimed by the Rolling 60's gang. After asking Pope if he was a gang member, various gang members jumped on Pope and started stomping on his head. Another gang member then came up and shot him fatally in the head. (RT 4207-4210, 4212-4217, 4268.) Several of the individuals involved had guns and they began shooting at people. (RT 4218.) It was at that point that the second victim, Ravi Cherkoori, was shot in the back while driving away and subsequently died. (RT 4245-4248, 4251, 4377-4379.) Higgins was identified as being at -43- the scene of the shootings and as one ofthe individuals that had beaten Pope. (RT 4376, 4380-4381, 4489-4491.) 2. Defense Mitigation a. Appellant’s Mitigation Appellant’s mother, Kimberley Ashley, testified that she had given birth to Appellant, who at the time of trial was 22 years old, when she was 14 years old. She was never married to Appellant’s biological father but subsequently married Tony Broomfield when Appellant was approximately six years old. She has had three other children by Broomfield. (RT 4592- 4593.) Ashley apologized for Appellant’s behavior during thetrial and offered her sympathy to the victims and their family. She stated that to know Appellant is to love him andthat “the person that you’ ve seen in this courtroom is notthe person that I lived with.” (RT 4593.) Appellant is a caring person and doesa lot of different things to help his friends and to help her. However, heis not as mature as he should be for his age. (RT 4593-4594.) Appellant has taken care of other people’s children, paid their bills and has donea lot of things for the church they attend. (RT 4594) '° The court records showing that Higgins had pled guilty to two counts of manslaughter were also introduced into evidence. (RT 4493.) -44- Ashley believed that Appellant did take this case seriously. She knowsthat he is not perfect but he does not deserve to die as it will not solve anything. She loves Appellant and he is like a best friend to her. As a result of this case, she has not been working,is depressed, and is on medication. (RT 4594-4596) According to Ashley, at time of the crimes, Appellant was working for Starving Students moving company. (RT 4599.) Ashley blamed Appellant’s involvementin this case on Crystal Johnson and did not like his being with her. (RT 4600.) She admitted that when he was younger, Appellant got suspended from school and wentto “probation school.” (RT 4601.) She also admitted that she raised Appellant the best she could and that he was kicked out of more than one school. (RT 4605- 4606.) Sylvia Thornton, who lived nearby to Appellant, had known him since he was around 11 or 12 years old. She had a handicapped son who Appellant would help. She described Appellant as a happy individual. (RT 4610-4613) Irene Broomfield, Appellant’s sister, stated that he was a sweet person whowas always helping others and who was determinedto succeed. He would help her with her son. (RT 4620-4622) -45- Mariah Mack knew Appellant through his sister, Irene. She described him as a sweet person wholoved his family and washelpful to her, like a big brother. She never saw Appellant becomeviolent or disrespect his family. (RT 4625-4627) She indicated that she met Appellant in 1997 and did not believe that he had committed these crimes. " (RT 4627-4629) Tony Broomfield, Appellant’s step-father, testified that he had been married to Appellant’s mother for 22 years. Broomfield, who had a felony conviction for robbery some seventeen years prior, currently worked as a surgical technician at UCLA. (RT 4635-4636.) Broomfield described Appellant as a very bright young man while growing up. (RT 4636.) Broomfield stated that he loved him as one of his own and that Appellant respected him. Broomfield acknowledged that he had taught Appellant the difference between right and wrong. (RT 4637.). He did not believe that Appellant was the type ofperson who would have committed these type of. crimes. (RT 4638.) Bryan Harris, who wassixteen years old, testified that he knew Appellant and that Appellant was a fun person to be around. Harris did not consider him dangerous. Harris was shocked when he heard that Appellant "Tt was stipulated that Appellant was in custody at the California Youth Authority from June of 1994 until April of 1997. (RT 4630.) -46- had been convicted, as that is not the person he knows. Harris had never known Appellant to be disrespectful to his parents. Appellant always treated him like a brother. (RT 4646-4649) Billy Ashley, a cousin wholived a few blocks away from Appellant, had known him since he was 5 years old. According to Ashley, Appellant was a hard worker and a nice guy. He was neverdisrespectful to his parents nor was he a violent person. (RT 4655-4659) b. Co-Defendant Flagg’s Mitigation Expert witness testimony waspresented that co-Defendant Flagg was borderline mentally retarded and suffered from a broad range of global deficits, including low attention and reasoning skills. He functioned below the fourth grade in terms of reading, spelling and arithmetic. (RT 4435- 4438, 4440.) In addition, Flagg had a history of auditory hallucinations and wasprescribed anti-psychotics while in jail. (RT 4439) A family friend who had known Flagg since he was a young man, testified that after Flagg’s father left the family, Flagg changed for the worse. (RT 4670-4672) Flagg’s father testified that he had been a heroin addict since 1968 _ and had been in prison. (RT 4683, 4723.) He admitted that when he baby sat Flagg he used drugsin front of him, and as a child Flagg would imitate -47- taking drugs. (RT 4685-4686, 4689.) He also stated that when Flagg was born the umbilical cord was wrapped around his neck which cut off the flow of oxygen. As a result, Flagg had learning disabilities. (RT 4690- 4691, 4724.) When he was a child, Flagg had also fallen from a balcony and had been hit by a car. (RT 4731-4732.) Gwendolyn Flagg, Flagg’s mother, corroborated the fact that when he wasborn the umbilical cord was wrapped around his neck and resulted in some brain damage. Healso had learning disabilities. She also admitted that his father was a heroin addict and not been there for Flagg when they split up. She askedthe jury to give her son a chance and reminded them that he never had a life. (RT 4755-4787) C. Co-Defendant Higgins’ Mitigation A friend, an uncle, and the parents of co-defendant Higginstestified that he was respectful to his parents and more of a follower than a leader. His father was not present when Higgins was growing up, the family moved around lot andtheyalwayslived in alowincomeneighborhood. (RT 4789-4808, 4817-4825.) Higgins was described as a good son who had never beenarrested as a juvenile. (RT 4827-4832.) //// //// _48- POINTS AND AUTHORITIES I. THEREIS INSUFFICIENT EVIDENCE TO SUPPORT THE SPECIAL CIRCUMSTANCE OF ARSON MURDER A. Introduction In this case one of the two special circumstances found true was arson-murder. (Penal Code section 190.2, subdivision (a)(17)(H).) (CT 681, 1004.) However, there was insufficient evidence to support this finding. As a result, Appellant’s right to due process under both the United States and California Constitutions were violated. Furthermore, Appellant’s right to a reliable sentence under the Eighth Amendmentof the United States Constitution was violated. B. The Standard of Review A conviction violates due processif it is not supported by substantial evidence. (Jackson v. Virginia (1979) 443 U.S. 307.) A conviction must be reversed for insufficiency of evidence under Jackson v. Virginia and People v. Johnson (1980) 26 Cal.3d 557, unless, in light of the whole record, there is "substantial" evidence of each of the essential elements. (/d. at pp. 576- 577.) -49- In order for the evidence to be "substantial," it must be "of ponderable legal significance . . . reasonable in nature, credible, and of solid value.” (Ud. at pp. 576-578.) While the reviewing court "must review the whole record in the light most favorable to the judgment below," and "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence" (/d. at pp. 576, 578), where the evidenceis not substantial, and the judgmentis based upon speculation, conjecture, unwarranted inference, or mere suspicion, reversal is required. (People v. Allow (1950) 97 Cal.App. 2d 797, 802-803; People v. Morris (1988) 46 Cal.3d 1, 21, overruled on other grounds in Jn re Sassounian (1995) 9 Cal.4th 535, 543.) C. The Car was Not a Dwelling for Purposes of the Arson-Murder Special Circumstance The uncontraverted evidence established that Dannie Kim was placed in the trunk of her car and the car then set onfire. No evidence was presented that her car was a dwelling. Section 190.2. subd. (a)(17)(H) requires that in order to prove the arson-murderspecial circumstance it must be shownthat the “{a]rson [was in] violation of subdivision (b) of section 451.” _50- Section 451, subd. (b), at the time of the commission of the offense, read as follows: A person is guilty of arson when heorshe willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property. (b) Arson that causes an inhabited structure or (c) inhabited property to burn is a felony punishable by imprisonment in the state prison for three, five, or eight years. This Court has also held that the arson-murder special circumstance, as enacted at the time the crime, applies only to the arson of an inhabited dwelling. “The arson special circumstance thus applies only to arson of an inhabited structure or inhabited property.” (People v. Clark (1990) 50 Cal.3d 583, 606, fn. 13 (emphasis added.); see also People v. Oliver (1985) 168 Cal.App.3d 920, 926.) In this case, the evidence showed that Kim was placedin the trunk of her car and the car then set afire. There was no evidence produced that Kim used the car as a dwelling. Thus, the arson-murder special circumstance was inapplicable and mustbe reversed. //// //// -5]- D. Respondent HasPreviouslyConceded that the Arson- Murder Special Circumstance Does Not Apply Under the Facts of this Case and Thus is Estopped from Arguing its Application in Appellant’s Case Both co-defendants Flagg and Higgins, who were sentenced to LWOPappealedtheir case to the Second District Court of Appeal. During the review ofthe record, the Court of Appeal requestedall parties to provide supplementalbriefingon the issue of whetheror not the arson- murder special circumstance wasapplicable to the facts of the case. (People v. Flagg (July 17, 2002, B135685) [nonpub. opn.].) Respondent concededthat it did not, and the Court of Appeal struck the arson-murder special circumstance. (/bid.) Underthe Fifth, Eighth and Fourteenth Amendments of the United States Constitution, Respondent is bound byits concession in People v, Flagg, supra, that the arson-murderspecial circumstance does not apply in Appellant’s case. Due process requires equal application of the law in both cases. Furthermore, allowing the arson-murderspecial circumstance to stand in Appellant’s case, while having struckit in the co-defendants’ case, would be in violation of the Eighth Amendment’s requirementofreliability. This Court has previously condemned the use of inconsistent theories by the prosecution in order to obtain convictions or harsher sentences. (/n re Sakarias (2005) 35 Cal.4th 140.) As this Court stated: “Becauseit -52- underminesthe reliability of the convictions or sentences, the prosecution’s use of inconsistent and irreconcilable theories has also been criticized as inconsistent with the principles of public prosecution and the integrity of the criminal trial system.” (/d. at 159;.) Although Sakarias involved the use of inconsistent prosecutorial theories at trial, the same rationale should apply to prevent the prosecution, in this case the Attorney General, from arguing inconsistent and irreconcilable theories on appealas to different co-defendants convicted at the sametrial on the same facts. “The doctrine ofjudicial estoppel essentially acts to prevent a party from abusing the judicial process by advocating one position, andlater, if it becomes beneficial to do so, asserting the opposite. The doctrine is designed not to protect any party, but. to protect the integrity of the judicial process. [citation.] (People v. Watts (1999) 76 Cal.App.4™ 1250, 1261-1262.) This doctrine should“apply where a prosecutor's assertion of inconsistenttheories would act to undermine society's confidence in the fairness of the process... .” (dd. at 1262; see also Thompson v. Calderon (9" Cir. 1996) 109 F.3d 1358 (overruled on other groundsin Calderon v. Thompson (198) 523 U.S. 538); Drake v. Francis (11" Cir. 1984) 727 F.2d 990.) -53- Furthermore, to allow the prosecution in this case to assert that the arson-murder special circumstance applies to Appellant would violate not only due process, but the Eighth Amendment’s requirementfor a “heightened need for reliability in capital cases.” (/d. at 160; see Jacobsv. Scott (1995) 513 U.S. 1067 (dis. opn. of Stevens, J., from denial of stay.) Because they wereall tried together, the facts as set forth in the co- defendants appeal are the same as in Appellant’s case as to the Kim homicide. In both appeals no evidence was presented that Kim’s vehicle was used as a dwelling. Thus, because the prosecution has conceded that the arson-murderspecial circumstance could not apply in the co-defendants’ case, it must concede that it cannot apply in Appellant’s case. E. Appellant’s Verdict Must be Reversed The guilt verdict must be reversed because the special circumstance of arson-murder never should have been alleged, as the law at the time of Appellant’s trial established that this special circumstance did not apply. The penalty verdict must be reversed because during the penaltytrial the jury was told, pursuant to CALJIC 8.85, that it could consider the arson- murder special circumstance as a factor in aggravation. (CT 847; RT 412.) Appellant recognizes that in Brown v. Sanders (2006) 546 U.S.212, the United States Supreme Court held that the invalidity of one special -54- circumstance did not necessarily prejudice the penalty verdict if other special circumstances were found to be valid. The Court established the following rule in such circumstances: “An invalid sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper elementto the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the samefacts and circumstances.” (/d at 220.) However, in Brown the defendant had been convicted of four special circumstances of which two wereheld to be invalid. Thus, he remained subject to the death penalty because two of the special circumstances found to be true by the jury were upheld on appeal. In Appellant’s case, he remains subject to the death penalty only because ofthe true finding of the robbery-murderspecial circumstance. In this case, the prosecution argued that the jury should consider this special circumstance and sentence Appellant to death. (RT 4942, 5049.) Furthermore, the evidence in aggravation against Appellant was notas strong as that introduced against the co-defendants, both ofwhom received a sentence of LWOP. Moreover, this was a close case for penalty determination as the jury reportedthatit was hopelessly deadlocked after taking several ballots. (See Argument -55- VIII, post.) The true finding of the arson-murder special circumstance added an improper element to the aggravation scale in the weighing process that was not overcomeby any of the other evidence in aggravation. Thus, the jury’s consideration of the arson-murderspecial circumstance was prejudicial and requires the penalty verdict to be reversed. II. THE MERGER DOCTRINE PROHIBITS THE APPLICATION OF THE SPECIAL CIRCUMSTANCE OF ARSON-MURDER IN APPELLANT’S CASE A. Introduction The prosecution’s case alleged that Appellant and the co-defendants followed Kim from the casino, robbed her and then returned with her and her car to the Osage Street area. The prosecution further argued that Kim wasplacedin the trunk of her car, shot by Appellant, and the carset afire. According to the pathologist, the cause of death was believed to be multiple gun shot wounds and multiple thermal burns. (RT 2459.) In regards to the special circumstance of arson-murder,the trial court instructed the jury, per CALJIC 8.81.17 as follows: To find that the special circumstance, referred to in these instructions as murder in the commission of the crime of arson, to be true, it must be proved: -56- 1. The murder was committed while a defendant was engaged in or was an accomplice in the commission or attempted commission of the crime of arson; and 2. The murder was committed in order to carry out or advance the commission of the crime of arson orto facilitate the escape there from to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the arson was merely incidental to the commission of the murder. (CT 746; RT 3450-3451.) The jury found true the special circumstance of arson-murder (section 190.2, subd. (a)(17)) as to Appellant and the co-defendants. (CT 681, 1004.) However, as argued below,the merger doctrine prohibited the special circumstance of arson murder from applying to Appellant. Asa result, Appellant’s Sixth, Eighth and Fourteenth Amendmentrights were violated. Finally, the prejudice that resulted from this finding requires that Appellant’s sentence of death be reversed. B. The Merger Doctrine Prohibits Application of the Arson-Murder Special Circumstance in Appellant’s Case The seminal case on the merger doctrine is People v. Ireland (1969) 70 Cal.2d 522. There, the defendantfatally shot his wife. (/d., at 527.) On appeal, he contendedthe jury should not have been instructed on second degree felony-murderfor a killing during an assault with a deadly weapon. (/d., at 538.) This Court held that the felony-murder rule should not apply whenthat theory "is based upon a felony whichis an integral part of the -57- homicide and which the evidence produced by the prosecution showsto be an offense includedin fact within the offense charged." (/d., at p. 539; original italics; footnote omitted.) The merger doctrine applies to first degree felony-murder as well as second degree felony-murder. In People v. Wilson (1969) | Cal.3d 431, this Court held the merger doctrine would apply to felony murder on a burglary theory where theintent at the time of entry is to commit an assault with a deadly weapon upon someoneinside the building, (Id., at 440-442.) This Court recognizedthat the doctrine applied even though burglary felony- murderis first degree murder. (/d., at 441, fn. 4.) This Court found that the burglary was "included in fact” within the killing. (/d., at 441.) The holding in Wilson was reaffirmed by this Court in People v. Sears (1970) 2 Cal.3d 180, 185-188.) In Sears, the defendant apparently entered the home with the intent to kill his wife, but ended up killing his stepdaughter. (/d., at 188.) This Court again held that the merger doctrine nevertheless applied and noted it would be anomalousto apply the doctrine to a defendant whokills his intended victim but deny the doctrine to a defendant who inadvertently kills someoneelse. (/d., at 188-189.) Finally, in People v. Burton (1971) 6 Cal.3d 375, the Court somewhat limited the scope of Ireland. In Burton, supra, the underlying felony was 58. armed robbery. (/d., at 384.) The defendant argued the merger doctrine applied because armed robbery necessarily included an assault with a deadly weapon as the means of applying force or fear (section 211) to accomplish the taking of property. (/d., at 386.) The Court pointed out that the net effect of the defendant's argument wouldbe to apply the merger doctrine to all felonies committed with a deadly weapon. (/d., at 386-387.) While this Court acknowledged that this was a possible interpretation of its prior merger cases, it rejected such an expansive application of the doctrine, finding that the focus of the merger doctrineis not on the use of a weapon but on the "purposeof the [defendant's] conduct." (/bid.) Where the purposeis to inflict bodily injury on another, and the desired infliction of bodily injury was notsatisfied short of death, - there is a single course of conduct with a single criminal purpose, and merger applies. (/bid.) But where there is an independent felonious purpose -- such as the acquisition of moneyor property in the case of robbery -- merger does not apply. (/bid.) Thus, under the merger doctrine, even if a felony was included | within the facts of the homicide, andis integral to the homicide, the court must determineif the homicide resulted from conduct for an independent felonious purpose as opposedto a single course of conduct for a single -59- purpose. (People v. Smith (1984) 35 Cal.3d 798, 805-806.) Merger applies when the defendant engages in conduct constituting a separate felony with no independent felonious intent other than to harm thevictim. ( /d., at 806- 808.) But where the harm is not intended but arises from an independent felony with an independent felonious purpose, merger doesnot apply. (/d., at 807-808.) The merger doctrine also applies to felony murderspecial circumstances. In People v. Green (1980) 27 Cal.3d 1, this Court held that there must be an independent felonious purpose for the felony andthatit must not be merely incidental to the murder. “To permit a jury to choose whowill live and who will die on the basis of whetherin the course of committing a first degree murder the defendant happensto engage in ancillary conduct that technically constitutes robbery or one of the other listed felonies would be to revive‘the risk of wholly arbitrary and Capricious action’ condemned by the high court plurality in Gregg. [citation.]” (/d. at 61-62; see also People v. Clark (1990) 50 Cal.3d 583, 608, [special circumstancesare “inapplicable to cases in which the defendant intended to commit murderand only incidentally committed one of the specified felonies while doing so.”].) -60- For example, in People v. Oliver (1985) 168 Cal.App.3d 920, the defendant had beenrejected by his girlfriend. In order to get even with her he threw a Molotov cocktail into her house. The house caught on fire. anda . guest that was staying there died as a result of the fire. (/d. at 588-589.) The court in Oliver held that the merger doctrine did not apply, because “the evidence wassuch as to support a conclusion appellant intended either to kill through the device of a deadly weapon,or that his purpose was restricted to causing destruction by meansof arson.” (/d. at 590.) In People v. Clark, supra, 50 Cal.3d 583, the defendant threw gasoline into a house occupied by a couple and their infant daughter. The defendant then ignited the gasoline which caused the house to catch on fire and which resulted in the death of the father. (/d. at 594.) As in Oliver, this Court foundthat the merger doctrine did not apply andthat the jury could have foundthat the defendant acted with an independent felonious purpose in committing the crime of arson. (/d. at 608-609.) In Appellant’s case, the rule of both Jreland and Green apply. Appellant and co-defendants allegedly set Kim’s car on fire in orderto injure, kill or finish killing her, not for any independent felonious purpose. The car wasset afire after she had beenshot and placedin the trunk of her vehicle thus makingit clear that they expected the fire to kill the victim. -6l1- This case must be contrasted to one in which the defendantsets fire for the purpose of destroying or damaging property, as was the case in Oliver and Clark. Here, there is no indication Appellant and co-defendants wanted to destroy property for its own sake. The alleged purpose was to kill or injure the Kim. There was no independent felonious purpose involved. Accordingly, the finding of the arson-murderspecial circumstance must be set aside. C. Appellant’s Death Verdict Must be Reversed Asstated in ArgumentI, supra, the error in finding true the arson- murder special circumstance requires the reversal of Appellant’s death sentence. Appellant incorporates herein the same reasonsas stated in that argumentas to why his death verdict must be reversed because ofthis error. Il. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHENIT DISMISSED JUROR NUMBER TWO A. Factual Background During trial testimony on April 12, 1999,the trial court informedall trial counsel, outside the presence ofthe jury that the bailiff had informedit that a spectator in the court room was apparently “utilizing a tape recorder.” (RT 1245.) The court told the spectator, Kimeko Campbell, that she was -62- not permitted to tape record trial proceedings. Campbell told the court that she did not know that, and would not record any further proceedings. (RT 1246.) | On April 16, 1999, outside of the presence of the jury, co- defendant Flagg’s attorney, James Brewer, informed the court that the night before he had found out that Campbell’s father was apparently dating one of the jurors. (RT 1650.) Breweralso stated that Campbell was friends with the family of co-defendant Flagg, but that she had intentionally sat on the other side of the courtroom from where Flagg’s family had beensitting. (RT 1650.) Brewer asked Campbell if she in fact knew the juror, who was seated as number two, and whose number was 5646. (RT 1650.) Campbell told Brewer that they may have met once but that Campbell did not know . her and that they had not spoken nor made eye contact. Campbell also told Brewerthat she was observingthe trial because sheis writing a story about the case for a class. (RT 1650.) The prosecutor requested that juror number twobe excused and stated that he had seen Campbell sitting with some of co-defendant Flagg’s family. He also claimed that Campbell was presentat the preliminary hearing with Flage’s family. (RT 1651.) -63- In chambers,the trial court questioned juror number two. In responseto the trial court’s question, she stated that she did recognize a person in the courtroom by the name of Kim, who was in fact Kimeko Campbell. She explained that she was currently dating Campbell’s father. (RT 1653.) She had been dating him for around one year but she knew that Campbell did not live with her father. (RT 1653.) Juror numbertwo related that she had seen Campbell about four or five times at her father’s house and had no idea whatherinterest in this case was. (RT 1654.) She stated that she has not discussed the case with Campbell and was “shocked to see she was even in the courtroom.” (RT 1654.) She had asked Campbell why she was there and Campbell told her that she was doing a school project. (RT 1654.) Juror number two was emphatic that she had not discussed the case with Campbell and that it was a coincidence that Campbell was there. She stated that the fact that Campbell was in court would in no wayinfluence her as ajuror. (RT 1655.) She had not previously broughtthis to the court’s attention because she did not think that it mattered. She understood that she was not allowedto talk to Campbell and that“it was never an issue, you know,oftrying to communicate with her, or her trying to communicate with me.” (RT 1655, 1658.) -64- Campbell told her that she was there for a class project and that she had been following the case since it began. (RT 1657.) Juror number two stated that she sees Campbell’s father about every weekend but did not know Campbell that well. (RT 1657.) The trial court then had Campbell brought into chambers. When asked if she knew juror number two, Campbell stated that although she recognized her, Campbell did not really know her, had never been introduced to her, and did not know her name. (RT 1660.) Campbell related that she had seen juror number twoat her father’s house on one occasion when Campbell had dropped off her laundry. (RT 1660.) Campbell stated that she was not aware of whattheir relationship was. (RT 1661.) Campbell informedthe court that she was interested in the case becauseshe is a writer and had never observed a murdertrial. (RT 1662.) Campbell also stated that she was not involved with any of the parties but had talked to someone named Tynesha, who was Campbell’s niece, at the preliminary hearing. (RT 1664.) It was Campbell’s understanding that Tynesha waseither a girlfriend or ex-girlfriend of one of the co-defendants. (RT 1664.) Campbell denied ever discussingany of the facts of the case with her father and stated that she would abide by a court -65- order prohibiting her from talking about the case with her father. (RT 1665.) Thetrial court then recalled juror number two into chambersfor further questioning. In responseto the trial court’s question, juror number two stated that the man she was dating was named Ernie Campbell, and that - as far as she knew,he had only one child, Kim. (RT 1670.) She again assured the court that, 1f hypothetically,a relation to Ernie Campbell, or Kimeko Campbell, was dating one of the defendant’s, it would not - influence her, as she did not even know them andit would have nothing to do with her. (RT 1671-1673.) Juror numbertwostated that she had never really spoken to Campbell the few times she had seen her and would not be at all influenced by Campbell or herrelationship to any ofthe co- defendants. (RT 1672.) As Juror numbertwotold thetrial court: No. I won’t feel awkward, becausefirst ofall, I have to let my conscience be my guide. That’s numberone. And [ — like I said, I’m not — If I were closer to them, maybe, yes, it would bother me. But I don’t even know them. You know. I don’t know — All I know is Kim,and I only knowherbyjust sight. You know, we haven’t even had a conversation, so to | speak. You know. And so no, it won’t bother me, becauseI don’t know them.. (RT 1675.) -66- Subsequent to this examination, the prosecutor informedthetrial court that during one of the breaks, Miah Richey had allegedly heard juror number two make a commentto the effect that it was a shame to have murders at casinos. (RT 1677.) At that point, the trial court then recalled juror numbertwo into chambers and askedherif she had made any such comments. Juror number two denied making any such statements. (RT 1678-1679.) Miah Richey was then called into chambers and sworn. She stated that when she came back from lunch the previous morning, she heard a person, whom she identified as juror numbertwo,talking to other jurors. (RT 1681, 1683-1684.) Richey did not know exactly what wassaid but believed that juror number two “was saying casino being there, there’s a murders [sic] happening around there. .... Andshekept talking about casinos. Casinos, and this is — causes murders aroundthe people, blah, blah, blah.” (RT 1681.) According to Richey, one of the other jurors she saw juror numbertwotalking to was an older woman with multiple color hair braids. (RT 1683-1684.) After Richey was excused, the prosecutor admitted that she had told him aboutit yesterday, but that he had forgotten about it and did not bring it up to the court at that time. (RT 1687.) -67- Appellant’s attorney then suggested that the trial court examine,in chambers, juror numbersix, as he believed that would have been the other juror who number two had beenallegedly talking with. (RT 1688-1689.) Juror number six was then brought into chambers andstated that she did not hear any other juror discussing any aspect of the case in the hallway. She specifically stated that she never heard any one discussing casinos causing murders or anything of that nature. (RT 1690.) She did state that juror numbertwo hadtold her that she was going to Las Vegas for the weekend. (RT 1691.) In open court, but this time at the bench, Campbell was again questioned bythe trial court. (RT 1694.) She stated that Tynesha’slast name was Coleman, but she was not aware that she was identified on the witnesslist. (RT 1694-1695.) In open court, the prosecutor argued that juror number two should be excused. (RT 1696-1698.) Appellant’s attorney objected and argued against her dismissal. (RT 1698-1700.) After hearing argument from all sides, the trial court stated as follows: This is not a subjective standard. This is an objective standard, based upon the facts that are producedin this court. The section is Penal Code section 1089. The court makes a determination of good causethat the juror is unable to perform her duty as a juror. This is an objective standard. -68- The mere fact that the juror may indicate that shestill feels comfortable is not the end of the discussion, or the end of the question. The question is whether or not the court is satisfied on an objective standard that she can perform her duty as a juror, based uponthe relationship this juror and Ms. Campbell, and Ms. Campbell and Tynesha Coleman and the defendant. I’m notsatisfied that this juror can perform her services as a juror. The court finds good cause under Penal Code section 1089. Juror numbertwois going to be discharged. (RT 1708-1709.) Thetrial court subsequently noted that its reasons for discharging juror number two “had nothing to do with the allegations that were made by Ms. Richey.” (RT 1715.) Appellant’s attorney then moved for a mistrial, which thetrial court denied. (RT 1709-1712.) Juror number two was then discharged, and an alternate juror was picked to replace her. (RT 1710, 1717.) As argued below,the trial court prejudicially erred in discharging this juror. B. Dismissal of Juror Number Two was an Abuse of Discretion Under Penal Code section 1089 Section 1089, in pertinent part, reads as follows: If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomesill, or upon other good cause shownto the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefore, the court may -69- order the juror to be discharged and draw the nameof an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors." Byits express language, section 1089 does not invest the trial court with unbridled discretion to discharge a juror. Instead, it restricts a court's powerbysetting forth a limited number of circumstances under which the court may discharge a juror. “A brief historical review of Penal Code section 1089 showsthe significant limitation on the trial court’s discretion to discharge jurors and the reasoning underlying the limitation.” (People v. Bowers (2001) 87 Cal.App.4th 722, 729.) These circumstances fall into three broad categories: (1) illness or death; (2) good causeresulting in a finding the juror is unable to perform his or her duty; and (3) a request from the juror for discharge coupled with good cause for such discharge. (People v. Delamora (1996) 48 Cal.App.4th 1850, 1855.) This case concernsthe second category. To fall within this category, there are two requirements: (1) that there exist good cause and (2) that the good cause be such as to support a finding of inability to perform the duties of a juror. '? Formersection 1123, which wasrepealed in 1988 (stats. 1988, ch. 1245, sect. 42) also provided that a court could discharge a juror on the basis of sickness or other good cause showing the juror to be unable to perform his or her duty. Someof the case law discussing the statutory basis for discharge of a jury was -70- With respect to the standard of review, the appellate court reviews for an abuse of discretion. (People v. Marshall (1996) 13 Cal.4th 799, 843.) If there is substantial evidence supporting thetrial court's finding, that finding will be upheld on appeal. (/bid.) However, a juror's inability to perform his or her. function must appearin the record as a demonstrable reality. (People v. Beeler (1995) 9 Cal.4th 953, 975; People v. Holloway (2004) 33 Cal.4th 96, 125.) Thus, "[t]he trial court has at most a limited discretion to determinethat the acts show an inability to perform the functions of a juror." (People v. Compton (1971) 6 Cal.3d 55, 60; People v. Collins (1976) 17 Cal.3d 687, 696.) Furthermore, if the grounds for discharge is juror misconduct, “such misconduct must be ‘serous and willful.’” (People v. Bowers (2001) 87 Cal.App.4th 722, 729,citing People v. Daniels (1991) 52 Cal.3d 815, 864.) A trial court's ruling will be reversed if it "cannot withstand scrutiny underthe precise language of section [] 1089." (People v. Compton, supra, 6 Cal.3d at p. 60.) Accordingly, the purported good cause must be such that it "actually renders [the juror] ‘unable to perform his duty.” (/d. at p. 59.) "The court must not presume the worst." (People v. Franklin (1976) 56 Cal.App.3d 18, 26.) decided before the repeal of former section 1123 and therefore discussesthat section as well as section 1089. -7I- Several cases have found a numberofthings to constitute good cause showing a juroris unable to perform his or her duty. Often times a finding of good causeis basedin part on the juror's admission that the matter in question would effect his or her ability to perform his or her duty as a juror.” For example, in People . Marshall, supra, 13 Cal.4th 799, 845-846, the court learned duringtrial that the juror had appeared in municipal court on a speeding ticket and was going to have a hearing ontheticket the next week. The juror stated that under his employer's rules this ticket, which was his fifth, would result in the loss of his job, and the juror acknowledgedthis situation would affect his ability to serve as a juror and focusonthetrial in which he wasserving as a juror. In People v. Fudge (1994) 7 Cal.4th 1075, 1098-1100, the juror initially said that anxiety about a new job she was about to begin would notaffect her ability to perform her duties. After speaking to her employer, however, she said it would. This Court found that this change supported a finding of good causeto dischargethe juror. In People v. Collins, supra, 17 Cal.3d 687, 690-691, 696, the juror asked to be excused,stating that she was unable to follow the court's instructions,felt Conversely, a juror'’s recantation of a claim of inability to judge the case will provide a basis for not discharging the juror. (See, e.g., People v. Beeler, supra, 9 Cal.4th at pp. 972-975; People v. Goldberg (1984) 161 Cal.App.3d 170, 191-192; People v. Franklin, supra, 56 Cal.App.3d at pp. 24-26.) -72- she was emotionally involved in the case, was unable to cope with the experience of being a juror, and thought she wasnot able to make a decision based on the evidence or the law. Again, this Court found that this supported a finding of good cause to discharge the juror. (See also People v. Hecker (1990) 219 Cal.App.3d 1238, 1242-1245 [defendant had joined the juror's church during the trial and the juror was unable to give any assurances she would decide the case withoutreferenceto this].) In other cases, while there is no admission by the juror of inability to perform his or her duties, there is evidence from which such inability plainly appears. The most common exampleis in cases ofillness. (See, e.g., People v. Sanders (1995) 11 Cal.4th 475, 539-541 [juror with severe high blood pressure discharged when shecollapsed for the second time during trial, requiring emergency medical treatment from paramedics; on the first occasion she stopped breathing and the court clerk resuscitated her with mouth-to-mouth resuscitation]; People v. Roberts (1992) 2 Cal.4th 271, 323-325 [jurorill with a sore throat and high blood pressure stated she might be able to resume her duties as a juror in three days]; People v. Pervoe (1984) 161 Cal.App.3d 342, 354-356 [juror had arthritis, was unable to raise her arm,dress herself, or drive a car, and was feeling sick to her stomach and fainting because of medication she had taken].) _73- Other examples of good cause to discharge a juror is concealment or misrepresentation of information of prior criminal chargesor arrests'* (People v. Johnson (1993) 6 Cal.4th 1, 21-22; People v. Price (1991) 1 Cal.4th 324, 399-401; People v. Farris (1977) 66 Cal.App.3d 376, 385-387, wherea juror has fallen asleep during thetrial. (People v. Johnson, supra, 6 Cal.4th at pp. 21-22.), when the juror requests discharge because of the death of a close relative, since the grief which accompanies sucha loss would makeit difficult for the juror to perform his or her duties. (People v. Ashmus(1991) 54 Cal.3d 932, 986-987 [death ofjuror's mother]; Jn re Mendes(1979) 23 Cal.3d 847, 852 [death ofjuror's brother].), refusal of a juror to participate in deliberations. (E.g. People v. Feagin (1995) 34 Cal.App.4th 1427, 1434-1437; People v. Thomas (1994) 26 Cal.App.4th 1328, 1332-1333.). Finally, good cause also can consist of a juror having contact with members of the defendant's family and then falsely denying such contact, thereby showingthe loss of impartiality and the inability to perform the duty of a juror. (People v. Green (1995) 31 Cal.App.4th 1001, 1010-1012.) '* Concealmentofinformation by a juror also constitutes implied bias which justifies disqualification for cause. (People v. Morris (1991) 53 Cal.3d 152, 183-184, disaproved on other grounds in People v. Stanley (1995) 9 Cal.4" 824, 830, fn. 1.). -74- Here, the trial court found that because juror numbertwo had met Campbell, and because Campbell’s niece was Tynesha Coleman who allegedly wasthe girlfriend of one of the co-defendants, that this would impairjurornumber two’s ability to be impartial. The problem withthis reasoning is that there was no evidence that juror number two even knew that Coleman was related to Campbellor that this factwould ever be disclosed to juror number two. What the trial court did was to “presume the worst,” something it cannot do. (People v. Franklin, supra, 56 Cal.App.3d at 26.) In fact, juror number two gave noreason to show that she could not be impartial, She repeatedly and emphatically stated that she hardly knew Campbell, would not be influenced by the factthat Campbell was present at trial, and that even if she found out, hypothetically, that someonerelated to Campbell or her father was dating one ofthe defendants, it would in no way influence her as a juror. (RT 1655, 1658, 1671-1673.) The basis for the trial court’s decision was speculation and not objective evidence demonstrating a possible bias onthepart ofjuror numbertwo. Assuch, the trial court abused its limited discretion under section 1089. //// //// -75- C. Dismissal of Juror Number Two Violated Appellant’s Rights Under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution Even though the procedure under section 1089 has been found to be constitutional under both the Sixth and Fourteenth Amendments of the United States Constitution (See Miller v. Stagner (9" Cir. 1985) 757 F.2d 988), its application maystill violate both the Sixth and Fourteenth Amendments if, in fact, the dismissal of a juror was improper. (See Perez v. Marshall (9" Cir. 1997) 119 F.3d 1422, 1429 (Judge Nelson,diss.).) Furthermore, under the Sixth Amendmentright to a fair and impartial jury and the Fourteenth Amendmentright to due process, the trial court cannot dismiss a juror on the basis of implied bias except“in ‘exceptional’ or ‘extraordinary’ cases. [citation.]” (Sanders v. Lamarque 9" Cir. 2004) 357 F.3d 943, 949 [error for trial court to excuse juror who hadfailed to disclose during voir dire that she lived in gang area and son’s association with gangs.] Moreover, as the United States Supreme Court has recognized,“it is virtually impossible to shield jurors from every contact or influencethat might theoretically affect their vote.” (Smith v. Phillips (1982) 455 U.S. 209, 217.) Therefore, a finding of implied bias can only be made in “some extremesituations .... (/d., at 222 (O’Connor,J., concurring).) -76- In a very recentcase, this Court has recognizedthat “‘[r]emoving a Juror is, of course, a serious matter, implicating the constitutional protections defendant invokes. While a trial court has broad discretion to removea juror for cause,it should exercise that discretion with great care.” (People v. Barnwell (July 26, 2007, S05528)__ Cal.4"__ [at 14].) In Barnwell, this Court held that in determining whetherornotthe trial court properly exercised its discretion, “the more stringent demonstrable reality standardis to be applied in review ofjuror removal cases. That heightened standard morefully reflects an appellate court’s obligation to protect a defendant’s fundamentalrights to due process andto a fair trial by an unbiased jury.” (/d at p. 15.) This Court pointed out that this test is less deferential to the trial court: The demonstrable reality test entails a more comprehensive and less deferential review. It requires a showingthat the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusionthat bias wasestablished. It is important to makeclear that a reviewing court does not reweigh the evidence undereither test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied. In reaching that conclusion, the reviewing panelwill consider not just the evidenceitself, but the record of reasons the court provides. A trial court facilitates review whenit expressly sets out its analysis of the evidence, why it reposed greater weight on somepart ofit and less on a another, and the basis ofits ultimate conclusion that a juror wasfailing to -77- follow the oath. In taking the serious step of removing a deliberating juror the court must be mindful of its duty to provide a record that supports its decision by a demonstrable reality. (/d. at 15-16.) Although Barnwell dealt with the removal of a juror during deliberations, the same constitutional protections and test must apply to Jurors removed before deliberations commence. Here, the trial court did not apply the demonstrable reality test. There was no evidencethat juror number two had ever discussed the case with either Campbell or her father. She assured the court that the presence of Campbell or Tynesha would in no way affect her impartiality. There was nothing in the record to rebut her assertion. “One maynot know oraltogether understand the imponderables which cause oneto think what he thinks, but surely one whois trying as an honest manto live up to the sanctity of his oath is well qualified to say whether her has an unbiased mindin a certain matter.” (Dennis v. United States (1950) 339 U.S. 162, 171.) Moreover, her impartiality is supported by her answers in both the jury questionnaire and during voir dire. In her questionnaire, juror number twostated that she was a strong supporter to the death penalty andfelt that it was used too seldom. (CT Supp. IV, 68-69.) During voir dire she stated that she would be completely objective and would not allow any outside factors to influence her opinion. (RT 820.) “As a final matter, it is highly -78- significant that the trial court made a preliminary determination that Juror 4 waspartial, objective,and did not hold impermissible bias.” (Sanders v. Lamarque,supra, at 949.) Additionally, the trial court never foundthat jurornumbertwo was untruthful.The trial court assumedthatbecause Campbell was the daughter of a man she had been dating, juror number two could not be impartial, even though she had met Campbell only a few times, had never discussed the case with her, and wassurprised to see her in the courtroomduring the trial. (RT 1654.) While the trial court may have believed that Campbell was not entirely honest with the trial court in her answers, there was no finding bythetrial court that juror numbertwo had in any way been dishonestor showed any bias.The demonstrablereality test was not met. Finally, the improper discharge ofjuror number two underminesthe reliability required by the Eighth and Fourteenth Amendments for a conviction of a capital offense. (Beck v. Alabama(1980) 447 U.S. 625.) Juror number two did not commit any misconduct andthetrial court was wrongto find that there was implied bias on herpart and that she could not serve as a juror. ///) ///] -79- D. The Error was Prejudicial Whena juroris improperly excusedandthe trial court subsequently denies a motion for mistrialbased upon such excusal, asin this case, Appellant’s rights under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution have been violated. Such error requires automatic reversalas it cannotbe shownto be harmless. (Sanders v. Lamarque, supra.) Even underthe harmless error analysis of Chapman v. California (1967) 386 U.S. 18, reversal is required, since the prosecution cannot establish that the discharge ofjuror numbertwodid not result in prejudice to Appellant. The jurors were outfor a lengthy period during the guilt phase deliberations and requested read back of testimony as well as asking several questions. (CT 785-791.) Furthermore, during penalty phase deliberations, the jury announcedthat they were hung after having taken several ballots. Appellant wasentitled to a fair and impartial jury, the right to due processand the rightto a reliablepenalty determination. Thetrial court’s dismissal ofjuror number two violated those rights and therefore Appellant’s convictions and sentence mustbe reversed. ///T //// -80- IV. THE TRIAL COURT COMMTTED PREJUDICIAL ERROR BY ALLOWING WILLARD LEWIS TO TESTIFY THAT HE. HEARD A CO-DEFENDANT AT THE SCENE IDENTIFY APPELLANT A. Factual Background During the direct examination of Willard Lewis, the prosecutor asked him if he heard the men heidentified as Appellant and co-defendant Higgins say anything to each other. Overtrial counsel’s objection on hearsay grounds, Lewistestified that he allegedly heard Higgins say “come on, Don.” (RT 1471-1472.) The prosecutor elicited this testimony from Lewis several times. (RT 1472-1473, 1476-1478, 1505.) As argued below, this was inadmissible hearsay. Furthermore, admission ofthis testimony violated Appellant’s Sixth, Eighth and Fourteenth Amendmentrights under the United States Constitution. Finally, this error was not harmless, was | highly prejudicial and requires reversal of both guilt and penalty phase verdicts. B. Standard of Review Asdiscussed, below,in the criminal context, the hearsay rule and the confrontation clause largely serve the identical purpose: reliability and the right to confront and cross-examine. Because only legal and constitutional -8]- standards are applicable, this Court reviews de novothetrial courts ruling receiving such evidence.(Lilly v. Virginia (1999) 527 U.S. 116, 136-37 (plurality opn.); People v. Cervantes (2004) 118 Cal.App.4th 162, 174-75; United States v. Peterson (9th Cir. 1998) 140 F.3d 819, 821; see generally People v. Cromer (2001) 24 Cal.4th 889, 892-93 (confrontation-clause issues under the Sixth Amendmentare reviewed de novo).) C. This Testimony Violated the Hearsay Rule Evidence Code section 1200, subd. (a) defines hearsay evidence as “evidence of a statement that was madeother than by a witness while testifying at the hearing andthat is offered to prove the truth of the mater stated.” Subdivision (b) of that section, states that “[e]xcept as provided by law, hearsay evidenceis inadmissible.” Moreover, the statement of an unavailable person, conveyed by another, which identifies a defendant as a criminal perpetrator, is hearsay when offered to prove that the defendantis the perpetrator. ( People v. Sims (1993) 5 Cal. 4" 405, 457; People v. Heishman (1988) 45 Cal. 3d 147, 171.) While in appropriate cases, the prosecution may seek to introduce a hearsay identification forits truth under a statutory hearsay exception, in this case, none wasever suggested, invoked, or applied, nor can the foundational facts for a particular exception be asserted for the first time on -82- appeal. Thus, the statement “Come on, Don” was inadmissible hearsay and should have been excluded. Assuming, arguendo, that the basis for the admission ofthis statement was as a declaration against penal interest, pursuant to Evidence Code section 1230",it wasstill inadmissible. For purposesofthe state- law exception, the proponent must also show that the statement was sufficiently reliable to warrant admission, despite its hearsay character. (People v. Duarte (2000) 24 Cal.4th 603, 610-611.) That was not shown in this case. As argued below the testimony of Lewis was inherently unreliable and should not have been admitted. D. This Testimony Violated Appellant’s Rights Under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution Both the United States and the California Constitutions guarantee criminal defendants the right to confront the witnesses against them. (U.S. Const., 6th Amend.; CA Const., art. I, 15.) The Confrontation Clause of the Sixth Amendmentguarantees the right of an accused in a criminal 'S Byidence Codesection 1230 reads as follows: Evidence of a statement by a declarant having sufficient knowledge of the subject 1s not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, wassofar contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social -83- prosecution "to be confronted with the witnesses against him.” In addition, the right to cross-examineis part of the Fourteenth Amendment’s guarantee of due process. “Indeed, we have expressly declared that to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment's guarantee of due process of law.” (Pointer v. Texas (1965) 380 U.S. 400, 405.) The right of confrontation, which 1s secured for defendants in state as well as federal criminal proceedings “means more than being allowed to confront the witness physically.” (Davis v. Alaska (1974) 415 U.S. 308, at 315. Indeed, "[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination."”” (/d., at 315-316 [citation.]). While they are not coextensive, the hearsay rule and the confrontation clause of the Sixth Amendmentserve nearly identical purposes. (People v. Valdez (1947) 82 Cal. App. 2d 744, 749.) Both are concermed with reliability of evidence. "The mission of the Confrontation ‘Clause .. . is to advance a practical concern for the accuracy ofthe truth- determining process in criminal trials by assuring that 'the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement."” ( People v. Green (1971) 3 Cal. 3d 981, 985, quoting California v. Green (1970) 399 disgrace in the community, that a reasonable manin his position would not have made the statement unless he believedit to be true. -84. U.S. 148, ) It has been long held that the right to confrontation underthe Sixth Amendmentwas merely the application ofthe common law rule against the use of hearsay. (People v. Valdez, supra, People v. Andrews (1965) 234 Cal.App.2d 69, 78.) When a co-defendant has madean extrajudicial statement that implicates the defendant, receiving evidence of the statement violates the silent defendants Sixth and Fourteenth Amendmentright to be confronted with and to cross-examine the witnesses against him. (E.g., People v. Fletcher (1996) 13 Cal.4th 451, 455, fn. 1.) A limiting instruction is not sufficient. Ud. at p. 455.) Accordingly,if the declarant (confessing co- defendant — here, Higgins)) does not testify, his statement is only admissible if the court redacts any referenceto the silent defendant. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123; Fletcher, 13 Cal.4th at pp. 455, 467.) In People v. Aranda (1965) 63 Cal.2d 518, 530-531 (hereafter Aranda), this Court held that when the prosecution seeks to introduce an extrajudicial statement of one defendantthat implicates a codefendant, the trial court must adopt one of three procedures:(1) in a jointtrial, effectively delete direct and indirect identifications of codefendants; (2) grant a severanceoftrials; or (3) if severance has been denied andeffective -85- deletion is not possible, exclude the statement. In the absence of a holding by the United States Supreme Court, the Aranda court declared these rules were not constitutionally compelled, but judicially declared to implement. the provisions for joint and separate trials of Penal Code section 1098. (Aranda, supra, 63 Cal.2d at 530.) Three years later, the United States Supreme Court in Bruton v. United States (1968) 391 U.S. 123 (hereafter Bruton), held that introduction of an incriminating extrajudicial statement by a codefendantviolates the defendant's right to cross-examination, even if the jury is instructed to disregard the statement in determining the defendant's guilt or innocence. Thus became knownthe Aranda-Brutonrule.'° In Richardson v. Marsh (1987) 481 U.S. 200, the United States Supreme Court limited Bruton ’s holding by finding that “the Confrontation Clause is not violated by the admission of a non-testifying codefendant's confession with a proper limiting instruction when,as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." (/d. at 212, fn. omitted.) The Court distinguished Bruton because in Richardson “the redacted confession was not Tn People v. Mitcham (1992) 1 Cal.4th 1027, the court held, “To the extent Aranda correspondsto the Brutonrule, it was not abrogated by the 1982 adoption of Proposition 8 (specifically section 28, subdivision (d) ofarticle I of -86- incriminating on its face, but only when linked to other evidence. [citation.]” and reasoned that “Express incrimination is morevivid than inferential incrimination and moredifficult to thrust out of the mind.” (People v. Song (2004) 124 Cal.App.4"" 973, 983.) In Gray v. Maryland (1998) 523 U.S. 185, the Supreme Court had another opportunity to again consider its holding in Bruton in the context where the defendant’s name was replaced with another word. The Gray Court held that “[w]hether Bruton, supra, 391 U.S. 123 or Richardson, supra, 481 U.S. 200 applied depended not on whether an inference was required to incriminate defendant, but on the type of inference required. Wherethe confession madea direct reference to a perpetrator other than the speaker and the jury could infer immediately that perpetrator was defendant, without considering other evidence, admission of the confession was Bruton error despite the limiting instruction. [citation.]” (People v. Song, supra, at 983.) In Appellant’s case the statement allegedly made by co- defendant Higgins of “Come on, Don” wasin reference to Appellant, as that is his first name. This clearly incriminated Appellant. There is one small group of cases that have held that Aranda-Bruton does not apply if the co-defendants statementis trustworthy and otherwise the California Constitution, the ‘Truth-in-Evidence provision.)’” Ud. at 1045, fn. 6.) -87- admissible as a declaration against interest under Evidence Code section 1230. (People v. Greenberger (1997) 58 Cal.App.4th 298, 334; see also People v. Cervantes, supra, 118 Cal.App.4th at pp. 174-77 (applying Greenberger).) However, in order for a declaration against interest to apply, therestill must be a showing of unavailability as well as a showing of reliability. (Evidence Code section 1230.) However, Greenbergerhas been superseded by subsequent United States Supreme Court and California Supreme Court authority holding that only the specifically disserving portions of the statement (namely, the portions that implicate only the actual declarant) are admissible. In Lilly v. Virginia, supra, 527 U.S. 116, 132-33, 138-39, the Court held that a co- defendants statement implicating both himself and defendant was not admissible under the Sixth Amendment because it tended to shift or spread blame. The court explained it viewed an accomplices statement that shifts or spreads the blameto a criminal defendantas falling outside the realm of those hearsay exceptions that are so trustworthy that adversarial testing can be expected to add little to the statements reliability. Ud. at 133.) The Court of Appeal has also recognized that the plurality decision in Lilly does cast doubt on the continuing validity of aspects ofPeople v. Greenberger. (People v. Schmaus (2003) 109 Cal.App.4th 846, 857.) -88- Moreover, as noted, a declaration against penal interest has been held to be admissible under the Confrontation Clause only upon a showing of particularized guarantees of trustworthiness (the residual-trustworthiness test) even though the penal-interest exception is not a firmly rooted exception that automatically authorizes admission. (idaho v. Wright (1990) 497 U.S. 805, 815; Ohio v. Roberts (1980) 448 U.S. 56, 66, People v. Duke (1999) 74 Cal.App.4th 23, 30.) To be admissible underthis exception, the totality of circumstances that surround the making of the statement and that renderthe declarant particularly worthy of belief must demonstrate that the evidenceis so trustworthy that adversarial testing would addlittle to its reliability. (Wright at 821.) Additionally, the fact that, as in this case, the admission was madeto a private party, rather than to the police in a custodial setting, is not dispositive. ““We agree with [defendant] that Boone [ United States v. Boone (9th Cir. 2000) 229 F.3d 1231] did not establish a universal rule that all declarations against penal interest made outside of police custody to persons other than police officers are per se trustworthy; rather, the inquiry whether the declaration was made under conditions which imparted a particularized guarantee of trustworthinessis fact- specific.” (Padilla v. Terhune (9th Cir. 2002) 309 F.3d 614, 619.) -89- Theissue, rather, is whether, on all the facts of the particular case, the declarant had an apparent motive to lie. (People v. Duke, supra, 74 Cal.App.4th at p. 31.) In this case, Willard Lewis had every reason tolie about what statements co-defendant Higgins made inculpating Appellant. Lewis wasan inherently unbelievable witness whosecredibility was so muchin dispute that even the prosecutor in this case was forced to argue that the jury did not need his testimony in orderto find the defendant’s guilty. (RT 3496-3502, 3658-3662) His testimony regarding co-defendant Higgins statement of “Come on, Don” lacked a presumption ofreliability to make it admissible under the declaration against penal interest exception to the hearsay rule. (Lilly, supra, 527 U.S. 137.) Nor doesit satisfy the residual trustworthiness test such that the evidenceis so trustworthy that adversarial testing would addlittle to its reliability. (Wright, supra, 497 U.S. at p. 821.) For these reasons, it cannot be said that the statement was trustworthy under the circumstances. (/bid.) Finally, even if the alleged statement made by co-defendant Higgins, as related by Lewis is somehow foundto bereliable, that is still not sufficient for purposes of the Sixth Amendment. In Crawfordv. Washington (2004) 541 U.S. 36 the Supreme Court held that out-of-court statements that are testimonial must be excluded under the confrontation -9()- clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (/d. at p. 68.) In doing so, the Court in Crawford, supra, 541 U.S. 36 abandonedits "adequate indicia ofreliability" standard (Ohio v. Roberts (1980) 448 U.S. 56) and "announced a new rule regarding the effect of the Confrontation Clause on the admission of hearsay statements in criminal prosecutions.” (People v. Sisavath (2004) 118 Cal.App.4th 1396, 1400.) The "new rule" announced by the court in Crawfordis that the Sixth Amendmentis satisfied only when testimonial statements of witnesses, who are absent from trial, are admitted where the declarant is unavailable, and the defendanthas had a prior opportunity to cross-examine. In Crawford, supra, the Court found that despite the state having an exception to the hearsay rule, in that case, the declaration against penal interest which hada reliability requirement, the Sixth Amendment’s right of confrontation precluded admission of such hearsay. “Dispensing with confrontation because testimonyis obviously reliable is akin to dispensing with jury trial because a defendantis obviously guilty. This is not what the Sixth Amendmentprescribes.” (/d. at 63.) This Court has recognized Crawford’s applicability in People v. Cage (2007) 40 Cal.4" 965, whereit held that under Crawford, and the subsequent case ofDavis v. Washington -9]- (2006) 547 U.S. [165 L.Ed.2d 224, 126 S.Ct. 2266], “testimonial” statements, as opposed to “non-testimonial” statements, were subject to exclusion under the Sixth Amendment. Here, the alleged statement made by co-defendant Higgins as related by Lewis wastestimonial in nature because, viewed objectively, it was given to establish a fact in a criminal trial. (Cage, supra, 40 Cal.4"at 984.) Thus, in Appellant’s case, regardless of whether or not the statement by co-defendant Higgins is found to bereliable, its admission violated Appellant’s right to confront and cross-examine underthe Sixth Amendment, as well as his right to due process under the Fourteenth Amendment. Finally, as a result, the admission of this evidence, which,as argued below, was prejudicial, invalidates Appellant’s death sentence as the reliability requirement of the Eighth Amendmentwasviolated. E. The Error Was Prejudicial The United States Supreme Court has held that a Bruton violationis subject to the harmless beyond a reasonable doubt standard of Chapman vy. California (1967) 386 U.S. 18. (Harrington v. California (1969) 395 U.S. 250, 254; Brown v. United States (1973) 411 U.S. 223, 231-232; People v. Anderson (1987) 43 Cal.3d 1104, 1128; People v. Orozco (1993) 20 Cal.App.4th 1554, 1566; People v. Jacobs (1987) 195 Cal.App.3d 1636, -92- 1652; People v. Song, supra, 124 Cal.App.4"at 984-985; People v. Pirwani (2004) 119 Cal.App.4" 770, 790-791.). Likewise, Crawford erroris also subject to the Chapman analysis. (People v. Cage, supra, 40 Cal.4" at 991.) The Chapmantest does not simply look to the amount of untainted evidence available for the jury to consider, but instead looks to whether the tainted evidenceitself affected the jury’s verdict: The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whetherthe error itself had substantial influence. (O’Neal v. McAninch, supra 513 U.S. at 438. see also Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [harmless-error analysis requires a reviewing court consider whateffect the constitutional error actually had on the guilty verdict in the case at hand]. ) In a close case,a tie goes to the defendant. “We conclude that the uncertain judge should treat the error, not as if it were harmless, butasifit affected the verdict(i.e., as if it had a ‘substantial and injurious effect or influence in determining the jury’s verdict’).” (O’Neal v. McAninch, supra 513 U.S. at 435.) The question, then, is whether the erroneous admission of co-defendant Higgins statement had a “substantial and injurious effect or influence in determining the jury’s verdict.” 93. Willard. Lewis’s testimony that he heard co-defendant Higgins say “Come on, Don”had a “substantial and injurious effect or influence in determining the jury’s verdict” and was thus prejudicial. On direct examination, the prosecutorelicited this statement from Lewis several times. (RT 1472-1473, 1476-1478, 1505.) In addition, the prosecutor, in summation argued that although he did not need Lewis’s testimony to convict, Lewis wasa truthful and therefore believable witness. (RT 3496- 3501, 3660-3661.) He specifically argued that the statement “Come on, Don”proved that Appellant was the shooter. (RT 3501.) Moreover, it was Lewis’s testimony that provided the key evidence that Appellant was not only present during the homicide, but was the actual shooter. Finally, the trial court failed to give the jury a cautionary instruction regarding how to use this evidence, something it should have done. (See Argument No V, infra.) Lewis’s testimony that he allegedly heard co-defendant Higgins say “Come on, Don” was in violation of the hearsay rule. It also violated Appellant’s right to confrontation and cross-examination under both the California and United States Constitutions as well as his right to due process under the Fourteenth Amendment and to a reliable sentence determination under the Eighth Amendment. Because Willard Lewis was -94- untrustworthy, there was no indiciaofreliability for its admission. In any event, it violated the rule set forth in Crawford v. Washington, supra. Because this error was highly prejudicial, Appellant’s guilt and penalty convictions must be reversed. V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO GIVE A CAUTIONARY INSTRUCTION TO THE JURY REGARDING THE CO- DEFENDANT’S STATEMENT IDENTIFYING APPELLANT A. Introduction During the first jury instructional conference held on April 20, 1999, the trial court and counsel went over someofthe preliminary instructions that the court intended to give the jury. Thetrial court indicated, with the concurrence of Appellant’s counsel, that it would instructthe jury pursuant to CALJIC 2.07, which states that certain evidence waslimited to one defendant only.'’ (RT 1994.) Thetrial court then questioned the prosecutor "CALJIC 2.07,at the time of Appellant’s trial, and as later given to the jury, read as follows: Evidence has been admitted against one or more of the defendants, and not admitted against the others At the time this evidence was admitted you were instructed that it could not be considered by you against the other defendants. _95- regarding the applicability of CALJIC 2.08, which the prosecution had submitted, and which specifically cautions the-jury not to use a post-arrest statement made by one defendantagainst the other defendants.'* The prosecution, with the consent of Appellant’s counsel, then requested to withdraw this instruction. The trial court granted that request and the instruction was withdrawn. (RT 1994.) Thetrial court also indicated thatit would instruct the jury as to CALJIC 2.09, which states that certain evidence was limited asto its purpose.” (RT 1994.) Do not consider this evidence against the other defendants. (CT 695; RT 3416.) '§ CALJIC 2.08,at the time of Appellant’s trial, read as follows: Evidencehas been received of a statement made by a defendantafter his arrest. Atthe time the evidenceof this statement was received you were instructed that it could not be considered by you against the other defendants. Do not consider the evidence of this statement against the other defendants. (CT 783.) °CALJIC 2.09,at the time of Appellant’s trial, read as follows: Certain evidence was admitted for a limited purpose. At the time this evidence was admitted you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. Do not consider this evidence for any purpose except the limited purpose for which it was admitted. (CALJIC 2.09) _96- On May 20, 1999, another jury instruction conference was held. The trial court, without objection, stated that it intended to give CALJIC 2.07. (RT 3328.) The trial court again brought up the applicability of CALJIC 2.08, opining that 2.07 “adequately addresses the issue.” (Ibid.) Thetrial court stated that “[t]he issue is whether or not the alleged statement by Mr. Debosein court directed to Mr. Lewis,if it happened, whether or not CALJIC 2.07 adequately addresses the issue. ... 2.08 relates more to a statement, such as an admission or confession.” (/bid.) The court stated that this issue was “covered in 2.07.” (RT 3331.) Atthat point, co-defendant Flagg’s attorney asked if there were “any statements that were admitted regarding the defendants?” (RT 3331-3332.) Thetrial court responded “only the one alleged statement which occurs here in court.” Thetrial court then refused to give CALJIC 2.08. (RT 3332.) Turning its attention to CALJIC 2.09,the trial court stated as follows: As to CALJIC 2.09, evidence limited as to purpose. There was a number, or there a numberof times in which the jurors were instructed that certain evidence was offered for a limited purpose. However, the concern that I have with regards to prosecution exhibit 93-A is that the jurors, if they’ re not otherwise instructed, would accept that document for the truth of the matter asserted. -97- So what I’ve doneis I’ve created an instruction that specifically pinpoints that issue for them, and tells them that in essence — well Il] just read it into the record. This part J added to 2.09: “Certain documents were received following the testimony of corrections Agent... .” At the time they were received, you wereinstructed that they were admitted for a limited purpose; namely, whether or not witness Willard Lewis was an actual percipient witness to the alleged events involving Dannie Kim,or whether he may have obtained this information from other source, such as the described documents.” “You may not consider the information contained within the documents for the truth of the matter stated. It may be considered by you only as it relates to what knowledge or information may have been potentially available to Mr. Lewis.” (RT 3333.) However, the prosecutor objected and, after a lengthy discussion, the trial court stated that it would allow the prosecutor to submit any changes that he felt were appropriate. (RT 3333-3339.) The prosecutor subsequently did, and at the subsequentjury instruction conference held the next day, the trial court stated that it would give the instruction as modified by the prosecutor. (RT 3398) The instruction that the trial court finally gave to the jury read as follows: Certain evidence was admitted for a limited purpose. -98- At the time this evidence was admitted you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. Do not consider the evidence for any purpose except the limited purpose for which it was admitted. Certain documents were received following the testimony of Agent Richmond. At the time they were received, you were instructed that they were admitted for a limited purpose. You may not consider the information contained within the documents for the truth of the matter stated. It may be considered by you only as it relates to what knowledge or information may have been potentially available to Mr. Lewis. (CT 696; RT 3417.) Asstated in Argument IV, supra, the trial court erred in admitting the statement allegedly made by co-defendant Higgins “Come on, Don.” As argued below, the jury was never given a cautionary instruction as to this statement. Such an instruction should have been given sua sponte. The failure of the trial court to do so was prejudicial error. B. The Trial Court had a Sua Sponte Duty to Give a Cautionary Instruction It is well settled that the court must instruct the jury to view evidence of a criminal defendant's oral admissions outside of court with caution. (People v. Carpenter (1997) 15-Cal.4th 312, 392; People v. Lang (1989) 49 -99- Cal.3d 991, 1021; People v. Beagle (1972) 6 Cal.3d 441, 455.) The reason for the cautionary instructionis to assist the jury in determining if the purported admissions were in fact made. (People v. Carpenter, supra, 15 Cal.4th at pp.392-393; People v. Ford (1964) 60 Cal.2d 772, 780-784.) This is particularly important in cases where the alleged admissions are reported by witnesses biased against the defendant or those with a motive to fabricate in order to save themselves at the defendant's expense. (People v. Lopez (1975) 47 Cal.App.3d 8, 14.) Furthermore, under the Aranda-Brutonrule discussed in Argument IV, supra, when a statement by a co-defendant is admitted against another defendant, at the very least a cautionary instruction is requiredtelling the jury that a statement by one defendantis limited to that defendant only and cannot be used against the other defendant. Thetrial court has a sua sponte obligation to instruct the jury that evidence of oral admissions must be viewed with caution. (People v. Beagle, supra.) An example of such aninstruction is contained in CALJIC 2.70 and 2.71.'° For purposes of CALJIC 2.71 (5th ed. 1988) andits '? CALJIC 2.70, at the time of Appellant’s trial, read as follows: A confession is a statement made by a defendant in which [he] [she] has acknowledged [his] [her] guilt of the crime[s] for which[he] [she] is on trial. In order to constitute a confession, the statement must acknowledgeparticipation in the crime[s] as well as the required [criminal intent] [state of mind]. -100- counterpart 2.70, "an admission simply is any extrajudicial statement-- whetherinculpatory or exculpatory-- 'which tends to prove his guilt when considered with the rest of the evidence.’ [Citation.]" (People v. Mendoza (1987) 192 Cal.App.3d 667, 675-676.) For purposes of the cautionary instruction, the courts have not distinguished between actual admissions and other damaging statements of the accusedrelating to the crime. (People v. An admission is a statement madeby[a] [the] defendant which doesnot byitself acknowledge[his] [her] guilt of the crime[s] for which the defendantis on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. You are the exclusive judges as to whether the defendant made a confession [or an admission], and if so, whether that statementis true in wholeorin part. [Evidence of [an oral confession] [or] [an oral admission] of the defendant not made in court should be viewed with caution.| CALJIC 2.71, at the time of Appellant’s trial, read as follows: An admission is a statement made by [a] [the] defendant which does notbyitself acknowledge [his] [her] guilt of the crime[s] for which the defendantis on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in wholeorin part. [Evidence of an oral admission of[a] [the] defendant not made in court should be viewed with caution.] -101- Beagle, supra, 6 Cal.3d at 455, fn. 5; People v. James (1987) 196 Cal.App.3d 272, 286; People v. Lopez, supra, 47 Cal.App.3d at 12.) The statement need not even be incriminating to qualify as an admission. (People v. Aho (1984) 152 Cal.App.3d 658, 663; People v. Perkins (1982) 129 Cal.App.3d 15, 23.) | In this case, the alleged statement of co-defendant Higgins “Come on, Don” was an admission that both Higgins and Appeilant were present at the time of the homicide. Worse yet, it was substantial evidence used to prove that Appellant was the shooter, and was thus more culpable. Thetrial court had a sua sponte duty to give a cautionary instruction regarding this statement. As argued below,the error was prejudicial. C. Failure to Instruct Violated Appellant’s Rights Underthe Sixth, Eighth and Fourteenth Amendments to the United States Constitution and was Prejudicial Error In this case, because Appellant did not have the opportunity to cross- examine co-defendant Higgins, the failure ofthe trial court to give a cautionary instruction regarding his alleged statement violated Appellant’s Sixth Amendmentright. Furthermore, verbal admissions, as a class of evidence, are singularly subject to error and abuse. (People v. Lopez, supra, 47 Cal.App.3d at 13.) Whenthetrial court fails to give a cautionary instruction that limits such a statement so that it does not violate the Sixth -102- Amendment, the error is of constitutional dimension and the rule enunciated in Chapmanv. California (1967) 386 U.S. 18, 24, applies. (United States v. Marsh co" Cir. 1998) 144 F.3d 1229, 1240-1241.) In the same manner, the failure to give a cautionary instruction as to how highly prejudicial evidence is to be used can constitute a violation of the due process clause of the Fourteenth Amendment. (Garceau v. Woodford (9" Cir. 2001) 275 F.3d 769 (overruled on other grounds in Woodford v. Garceau (2003) 538 US. 202) The fact that the trial court instructed the jury via CALJIC 2.07 and 2.09 did not cure this error. First, as to CALJIC 2.07, when Willard Lewis testified as to the alleged statement of co-defendant Higgins which identified Appellant, the trial court never instructed the jury that this evidence wasnot to be used against Appellant. Rather, this instruction was given in reference to the evidence of the Dassopoulos robbery and the incident in court where Appellant allegedly threatened Lewis. In fact, the court was under the misimpression that the only admissions of the defendants that were admitted during trial was this alleged threat. (RT 3328-3332.) Second, as to CALJIC 2.09, this instruction primarily related to the documents sent to co-defendant Higgins by his parole officer. As with CALJIC 2.07, the trial court never instructed that jury that the -103- statement allegedly made by co-defendant Higgins could not be used against Appellant. As aresult, Appellant’s death sentence does not have the indicia of reliability as required under the Eighth Amendment. For the same reasons as stated in Argument IV, supra, the error was not harmless beyond a reasonable doubt. Appellant’s convictions and sentence must be reversed. VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY INSTRUCTING THE JURY THAT A ROBBERYIS STILL IN PROGRESS FOR PURPOSES OF THE FELONY MURDER RULE SO LONG AS THE PURSUERS ARE ATTEMPTING TO CAPTURE THE ROBBER OR REGAIN THE STOLEN PROPERTY AND HAVE CONTINUED CONTROL OVER THE VICTIM A. Factual Background During the jury instructional conference held on May 5, 1999, the trial court proposed to instruct the jury with modified version of CALJIC 8.21.1, which read as follows: For the purposes of determining whether an unlawful killing has occurred during the commission or attempted commission of a robbery, the commission of the crime of robberyis not confined to a fixed place or a limited period of time. A robbery is still in progress after the original taking of physical possession of the stolen property while the -104- perpetrator is in possession of the stolen property and fleeing in an attempt to escape. Likewiseit is still in progress so long as immediate pursuers are attempting to capture the perpetrator or to regain the stolen property. A robbery is complete when the perpetrator has eluded any pursuers, has reached a place of temporary safety, and is in unchallenged possession of the stolen property after having effected an escape with the property. A perpetrator has not reached a place of temporary safety if the continued control over the victim places the perpetrator’s safety in jeopardy. A perpetrator’s safety is in jeopardy if at any unguarded moment, the victim might have managed to escape or signal for help. (CT 732.) Co-defendant Flagg’s counsel specifically objected to that part of the instruction that read “Likewise,it is still in progress so long as the immediate pursuers are attempting to capture the perpetrator or to regain the stolen property” as well as the third paragraph of the instruction. (RT 3391- 3392.) In addition, Flagg’s counsel also objected to the last paragraph, which had been proposedbythe trial court,. (RT 3392-3393.) Appellant’s counsel joined in both objections. (RT 3391-3393.) However,thetrial court overruled the objection and subsequently instructed the jury withthis modified version of CALJIC 8.21.1. (CT 732; RT 3339, 3437-3438.) As argued below, this instruction was erroneous. Asa result, Appellant’s rights under the Sixth, Eighth and Fourteenth Amendments were violated. Finally, this error was prejudicial. -105- B. The Trial Court Erred in Instructing the Jury That a Robbery is Complete Only when the Perpetrator has Eluded his Pursuers 1. This Instruction Required the Jury to use an Improper Subjective Standard The third paragraph of CALJIC 8.21.1, states that one of the requirements for a robbery to be complete is when the robber has eluded any pursuers. This language had no applicability to the facts in Appellant’s case because there was no evidence that he wasever being pursued. Therefore, this language was confusing and should not have been included. Moreover, this part of the instruction defines a robber's liability, underthe felony murder special circumstance, to depend upon the actions of third parties, which he may be unaware of and incapable of ascertaining. This standard goes beyond the "strict liability” intended by the felony murder rule, because even the felony-murder rule contemplates that a defendant knowsor should know when heis committing the predicate felony. (People v. Coefield (1951) 37 Cal. 2d 865, 868.) Indeed, the deterrent purpose of the felony-murderrule, whichis to deter the commission of the felonyitself by imposing the maximum risk on its consequences,is not served unless a defendant knowsor should know heis in the process of committing the felony. (see People v Dillon (1983) 34 Cal. 3d 441, 498, fn.5 (conc. op. of Bird, C.J.).) -106- Similarly, imposing liability on a defendant who commits homicide during the immediate flight after a robbery makes sense from a public policy standpoint, but only under circumstances where the defendant knows or should know thathe is fleeing. Although the case law concerning termination of robbery (and other felonies) does not expressly address this “objective” component,it is implicit in a series of decisions. (See People v. Kendrick (1961) 56 Cal. 2d 71, 90-91; People v. Ford (1966) 65 Cal. 2d 41, 56-57.) For example, in People v. Laursen (1972) 8 Cal. 3d 192, 199-200, this Court explained that the flight phase of robbery is defined not only in terms of time and distance but also by a "single-mindednessofthe culprit's purpose." Similarly, in People v. Kendrick, supra, 56 Cal. 2d 71, 90, the shooting was within the felony murderrule because the defendant was engagedin hot flight and "in the belief that the officer was about to arrest him for the robbery." Finally, in People v. Salas (1972) 7 Cal. 3d 812, 823, the Court repeated the criterion drawn from Kendrick, supra, that the defendant acted "in the belief that the officer was about to arrest him for the robbery." Thus, under the third paragraph of CALJIC 8.21.1, it is apparent that the mental state of the defendant determines when a robbery terminates, -107- because it required the defendant to determine when heis no longer being pursued. A test using the defendant’s subjective state of mind 1s vague and thus improper. By requiring an objective standard the jury can use the reasonablenesstest to determine whether a defendant’s expectations are reasonable or not. Instead of providing for liability where "immediate pursuers are attempting to capture the perpetrator or to regain the stolen property," it should provide for lability where the defendants "know or reasonably should know that immediate pursuers are attempting to capture them or regain the stolen property." Becausethis portion of CALJIC 8.21.1 uses a subjective rather than an objective standardit is improper. 2. This Instruction Violated Appellant's Right to Due Process Where severe criminal sanctions are at stake, especially in a capital case, the defendant must be capable of determining whether his conductis prohibited, and to what extent. (Morisette v. United States (1952) 342 U.S. 246; People v. Hernandez (1964) 61 Cal. 2d 529, 532].) Felony murder requires the mensrea underlying the predicate felony, and is not a "strict liability" offense in that respect. However, the specific intent to commit robbery doesnot linger after the taking of property is complete. A different mental state must be identified to distinguish between a completed robbery and an incomplete robbery. CALJIC 8.21.1 fails to do so. -108- Furthermore, a statute is unconstitutional if it is so vague that "men of common intelligence must necessarily guess at its meaning and differ as to its application." (People v. Superior Court (Engert) (1982) 31 Cal. 3d 797, 801, quoting Connally v. General Construction Co. (1926) 269 U.S. 385, 391 [70 L.Ed. 322, 46 S.Ct. 126].) Likewise CALJIC 8.21.1, as given bythe trial court in this case, fails this constitutional test for the very reason that it imposesliability on the basis of facts which the actor could not ascertain if he tried. As discussed below,this error was prejudicial. C. The Trial Court’s Instruction that a Perpetrator has not Reached a Place of Safety if His Continued Control Over the Victim Places Him in Jeopardy was Argumentative and Created an Impermissible Mandatory Presumption In proposing and then giving the additional pinpoint instruction as part of CALJIC 8.21.1, the trial court relied on People v. Carter (1993) 19 Cal.App.4" 1236. However, both thetrial court and the Court of Appealin Carter were wrong. In fact, this pinpoint instruction is argumentative becauseit uses the term “is in jeopardy” as opposed to the non- argumentative “may be in jeopardy.” As a result, and contrary to the rationale in Carter, this instruction does give rise to a presumption that a robbery continues so long as the victim is held captive, no matter what period of time has passed. Defense counsel correctly pointed this problem -109- out when hestated that “the jury could determine that as long as they have a victim, the robbery is ongoing, no matterit’s a year from now,ten years from now, a hundred years from now. And just don’t think that hability wasintended to extend out that long.” (RT 3392.) By giving this instruction, the trial court created a mandatory presumption whichis unconstitutional as it violates the due process clause of the Fourteenth Amendment. (Sandstrom v. Montana (1979) 442 U.S. 510.) D. These Errors Were Prejudicial Instructional errors which violate constitutional rights are to be adjudged using the harmless beyond a reasonable doubt standard of Chapmanv. California (1967) 386 U.S. 118. The erroneousinstructions given bythe trial court were prejudicial. The evidence did not show when any items were taken from Kim. In fact, any items that may have been taken from Kim could have been removedafter the killing, and thus would not constitute a robbery. (People v. Kelley (1990) 220 Cal.App.3d 1358.) Alternatively, the items could have been taken from Kim hours before she waskilled and the robbery was completed. Finally, the jury could have found that the defendants, after robbing Kim, but before killing her, had reached a place of safety. Thus, the prosecution cannot show that this error was harmless. Furthermore, because this was prejudicial error, Appellant’s -110- death sentence lacked the indicia of reliability required under the Eighth Amendment. For these reasons Appellant’s convictions and sentence must be reversed. VIL. THE CUMULATIVE EFFECT OF THE GUILT PHASE ERRORS REQUIRES REVERSAL OF THE GUILT JUDGMENT Multiple serious constitutional errors occurred during the guilt phase of Appellant’s trial and, as argued supra, each error wassufficiently prejudicial to warrant reversal of Appellant’s guilt judgment. However, a further measure of harm to Appellant is the cumulative effect of these errors rather than their individual harm. These multiple errors undermined the fundamental fairness of Appellant’s trial, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and correspondingstate constitutional provisions. All of the guilt phase errors must be considered in order to determine if Appellant received a fair trial. (United States v. Rivera (10" Cir. 1990) 900 F.2d 1462, 1470; United States v. Wallace (9" Cir. 1988) 848 F.2d 1464, 1475-1476;People v. Buffum (1953) 40 Cal.2d 709, 726, overruled on other grounds in People v. Morante (1999) 20 Cal.4" 403.) Additionally, when errors of federal magnitude combine with non- -1\I- constitutional errors, all errors should be reviewed together under a Chapmanstandard. (/n re Rodriguez (1981) 119 Cal.App.3d 457, 469- 470.) Furthermore, multiple constitutional errors require an even higher level of scrutiny. In People v. Williams (1971) 22 Cal.App.3d 34, the court summarized the multiple errors committed at the trial level and concluded: Some of the errors reviewed are of constitutional dimension. Althoughtheyare not of the type calling for automatic reversal, we are not satisfied beyond a reasonable doubtthat the totality of error we have analyzed did not contribute to the guilty verdict or was not harmlesserror. . . [Citations.] (/d. at 58-59.) Appellant has demonstrated that a numberof errors of federal constitutional dimension occurred during the guilt phase, and that each such error mandates reversal. These errors include the true finding of an improper special circumstance, improper dismissal of a juror, introduction of inadmissible hearsay that violated both state law and the federal constitution, and improperjury instructions. “The inquiry . . . is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, emphasis in original.) The cumulative effect of these errors requires reversal of Appellant’s convictions. -112- PENALTY PHASE ERRORS VU. THE TRIAL COURT ERRED BY INSISTING ON FURTHER DELIBERATIONS AND REFUSING TO DECLARE A MISTRIAL AFTER THE JURY DECLARED THATIT WAS DEADLOCKED A. Factual Background Shortly after the trial court responded to the jury’s question regarding the consequences of a hung jury (see Argument IX,infra), the jury indicated to the bailiff that they were deadlocked. After hearing from counsel, the trial court brought the jury into the courtroom to inquire regarding their status. (RT 5071-5073.) In response to the court’s question, the foreperson stated that as to both Appellant and co-defendant Flagg, five ballots had been taken;as to co-defendant Higgins, one ballet was taken. (RT 5074-5075.) According to the foreperson, in the last two ballots taken regarding Appellant and co- defendant Flagg, there had been no changes in the numerical voting. (RT 5075.) Furthermore, the foreperson stated that neither further deliberations, any rereading ofinstructions, rereading of testimony, clarification of instructions or viewing of exhibits would help the jury reach a verdict. (RT 5075-5076.) -113- The trial court then inquired individually of each juror whether “further reading ofinstructions, further reading of testimony, review of exhibits that have been received in this trial, would assist the jurors in reaching a unanimousverdict?” (RT 5076.) Each of the twelve jurors answered in the negative. (RT 5076-5077.) Outside the presence of the jury, the court then inquired of counsel. Appellant’s counsel moved for a mistrial. (RT 5077.) When Appellant’s counsel askedthe trial court if it was going to inquire of the jury what the numerical split was, the trial court responded “TI think at this point, it’s premature.” (RT 5079.) Thetrial court stated that “These jurors are tired in the box. They’re frustrated. It’s pretty easy to see. Been goingat it two months, and they’ve only been deliberating a day and a half.” (RT 5079.) Thetrial court then stated to the jury as follows: Ladies and gentlemen,the task that I ask you to do I understand is not a simple task. There’s no question that in Americancivilization, this is probably the hardest task that anybodyasksforits citizens. But considering the fact this has been almost a two- month trial, and the fact that deliberations have only been a little less than two days, I’m going to ask that you simply take a recess this afternoon. Comeback tomorrow morning at 10:30 a.m. continue your discussions. If it’s apparent to you after a period of time that those discussionsare fruitless, and there’s nothing else that the court is going to be able to do to assist you in reaching a decision, then sobeit. -114- But I want you to just take a break from it now. Come back tomorrow when you’re fresh, you’re not tired. Begin yourdeliberations again. Let me know tomorrow how things go, and we’ll address that issue tomorrow.” (RT 5080.) The trial court then admonished the jury and they were excused for the day. (RT 5079-5080.) The following day the jury returned a verdict of death for Appellant and LWOPfor the co-defendants. (CT 836-837, 1005, CT Supp II 229A, CT I333-334; RT 5088-5089.) Asargued below,the failure of the trial court to declare a mistrial violated Appellant’s rights under state law, as well as his right to a fair trial under the Sixth Amendment,his right to due process under the Fourteenth Amendment and his right to a reliable sentence under the Eighth Amendmentof the United States Constitution. B. Penal Code Section 1140 Required the Trial Court to Declare a Mistrial when the Jury Declared it was Hopelessly Deadlocked Section 1140 permits the trial court to discharge the jury and declare a mistrial where "it satisfactorily appears that there is no reasonable probability that the jury can agree." (Penal Code 1140.) This Court has held that the trial court is vested with broad discretion in determining whether there is a "reasonable probability" of agreement. (People v. Rodriguez -115- (1986) 42 Cal.3d 730, 775.) The court must exercise its power, however, without either express or implied coercion of the jury, so as to avoid _ displacing the jury's independent judgment in favor of considerations of compromise and expediency. (Rodriguez, supra; see also People v. Rojas (1975) 15 Cal.3d 540, 546; People v. Carter (1968) 68 Cal.2d 810, 817.) It is permissible for the court to urge agreement after learning of the numerical division of the jury, without seeking to discover how many are for conviction or for acquittal. (People v. Fain (1959) 174 Cal.App.2d 856.) However, where the court discovers that a majority of the jurors are for conviction, and then urges agreement, this is usually held to be impermissible coercion of the majority jurors. (Peoplev. Gainer (1977) 19 Cal.3d 835, People v. Talkington (1935) 8 Cal.App.2d 75, 83.) In People v. Sheldon (1989) 48 Cal.3d 935, this Court reemphasized that there is always a potential for coercion oncethe trial court has learned that a unanimous judgment of conviction is being hamperedbya single hold out juror favoring acquittal. Thus, whileit is true that insisting on further deliberations or further comments to a jury split 11 to 1 in favor of conviction does not automatically and necessarily constitute jury coercion, it is an important factor in evaluating whether coercion occurred. (Sheldon, supra, at 48 Cal.3d 959.) -116- Here, although requested by Appellant’s counsel, the trial court refused to inquire into the numerical split of the jury. (RT 5079.) This was contra to whatthe trial court did during the guilt phase deliberations, when it asked for, and received, a numerical breakdownafter the jury announced, after two days of deliberation, that they were hung on twoofthe special circumstances. (RT 3745-3754.) The trial court should have madethe same inquiry when the jury announcedit was deadlocked during the penalty phase deliberations. Inquiring into a jury’s numerical division, without asking which way they were voting, is a procedure that has been expressly approved bythis Court. (People v.Carter,supra, 68 Cal.2dat 815; People v. Rodriguez, supra, 42 Cal.3d at 776; People v. Proctor (1992) 4 Cal.4" 499, 538-539.) “Such inquire is justified in the discharge of the court’s “statutory responsibility of assuring that a verdict is rendered ‘unless, at the expiration of such time as the court may deem proper,it satisfactorily appears that there is no reasonable probability that he jury can agree.’ [citations.]” (Proctor, supra at 538.) Bynot inquiring as to the numerical division, the trial court could not know whetheror not requiring the jury to continue deliberations was coercive. Yet, there is a strong indication that requiring the jury to continue ' -117- deliberations was coercive. This is demonstrated by juror numberfive’s comments to the trial court after the verdict that he was very troubled by the refusal of the court to answer the question regarding what would happenif there was a hung jury. (RT 5100-5101.) Thus, it may well have been the case that only one or a two jurors were holding out andthe trial court’s ordering them to continue deliberations had a coercive effect. (People v. Gainer, supra, 19 Cal.3d 835; People v. Hinton (2004) 121 Cal.App.4™ 655.) In this case, the jury had taken five ballots on Appellant’s sentence and in the last two ballots there had been no change in numerical voting. (RT 5075.) Every juror, when asked by the court, stated that there was nothing the court could do which would help them in reaching a unanimous verdict. (RT 5076-5077.) In People v. Lovely (1971) 16 Cal.App.3d 196, the jury similarly announcedthat after several ballots it was hung as to the issue of guilt on one of the charges. In that case, the trial court, after inquiring of the jury, was informedthat the jury was evenly split and that no further deliberations would help them arrive at a unanimous verdict. (/d. at 200-201.) The Court of Appeal upheld the trial court’s declaring a mistrial. (id. at 202-203; see also In re Chapman (1976) 64 Cal.App.3d 806.) -118- Here, the trial court’s failure to inquire as to the numerical split of the jury waserror because had it done so the court would have been in a better position to know whetheror not requiring further deliberations was coercive. As already noted, the record tends to suggestthat it was. Furthermore, the fact that five ballots had been taken and no changein the juror’s position had occurredafter the last two ballots, as well as the jurors unequivocal statements to the court that nothing more could be done to assist them in deliberations, strongly suggests that any further deliberations were inherently coercive. In addition, the jury had deliberated for approximately the same period that they had deliberated during the guilt phase, whenthetrial court granted a mistrial as to the two special circumstances. Because of the potential coercive affect requiring the jury to continue to deliberations, the trial court erred and Appellant’s death sentence must be reversed. C. Appellant’s Rights Under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution Were Violated By the Trial Court Refusing to Declare a Mistrial Requiring a deadlocked jury to continue deliberations violates a defendant’s right to a fair trial by jury under both the California Constitution and the Sixth Amendment, to due process under the Fourteenth -119- Amendment, andto a reliable, individualized sentencing determination under the Eighth Amendment. In this case, as argued supra,the trial court improperly ordered the jury to continuedeliberations even after they had voted five times. Moreover, the court failed to remind jurors of their duty and obligation not to surrender conscientiously held beliefs simply to secure a verdict for either party. (United States v. Beattie (9" Cir. 1980) 613 F.2d 762, 765; Sullivan v. United States (9Cir. 1969) 414 F.2d 714, 718; Shea v. United States (9" Cir. 1919) 260 F. 807, 809-10, Peterson v. United States (9" Cir. 1914) 213 F. 920, 922.) The failure to do so is, under these circumstances, reversible error. (United States v. Mason (9" Cir.1981) 658 F.2d 1263.) In Appellant’s case, requiring the jury to continue deliberations impliedly communicatedthe trial court’s desire for a unanimousverdict The vice of doingso is that jurors may feel disapprobation if they cause a mistrial by failing to yield to majority pressure. (See, e.g., Quong Duckv. United States (9th Cir. 1923) 293 F. 563, 564.) When evidence of such undue pressure is present, reversal is necessary. (Jenkins v. United States (1965) 380 U.S. 445, 446 (per curiam).) Such pressure waspresent in this case, as demonstrated by juror numberfive’s comments to the trial court after the verdict was received. (RT 5100-5101; see ArgumentIX, infra.) -120- Becausethe trial court violated Appellant’s Sixth, Eighth and Fourteenth Amendmentrights, his death sentence must be reversed. IX. THE TRIAL COURT ERRED BY REFUSING TO ANSWER THE JURY’S QUESTION AS TO WHAT WOULD HAPPEN IF THEY COULD NOT REACH A VERDICT A. Factual Background On June 2, 1999, during the penalty phase deliberations, the jury sent a note which read as follows: We, the jury in above-entitled action, request the following: If the jury deadlocks on the verdicts and penalty phase, what would happen? Would, One: The defendants betried all over again? Two, Would defendants be tried over again in penalty phase only with different jury? Three, would defendants get the lesser degree sentence automatically of life without possibility of parole. (CT 842; RT 5068.) In response to this question,the trial court stated that “My thoughtis that I should respondthat this is not an appropriate consideration for the jury, and that I can’t respond to the question, or I can’t give them an answer.” (RT 5069.) Appellant’s trial counsel agreed with thetrial court, as did the co-defendant’s counsel and the district attorney. (RT 5069.) -121- Without objection, the trial court then sent the jury the following note: “This is not an appropriate factor for your consideration. You are ordered to disregard this consideration. The court cannot answerthis question.” (RT 5070.) On June 25, 1999,after the verdict of death, and at a hearing to pick a sentencing date for Appellant, the trial court informed all counsel that after the jury had been discharged the trial court had the bailiff bring the jurors into the trial court’s chambersso that he could thank them for their service. (RT 5099.) The court informedthe jurors that there were likely to be newsreporters in the hallway and that if the jurors were interested in protecting their anonymity, they would be provided an alternate access out of the courthouse. (RT 5099.) However,several ofthe jurors told the trial court that they wanted to talk to the attorneysbutnotinthe hallway. The trial court then offered them the use of the jury deliberation room andstated that he would notify the attorneys that the some of the jurors desired to speak with them. (RT 5099-5100.) Both prosecutors and co-defendant Flagg’s attorney were present and spoke with the jurors, who apparently informed them that the jurors had found certain evidence that the prosecutors had overlooked. (RT 5100.) -122- In addition,one of the African-American jurors, juror numberfive, told the court that he needed to know the answerto the question they had previously sent regarding what would happenif there was a hung jury duringthe penalty phase. (RT 5100-5101.) Thetrial court stated as follows: It appeared to the court he was very troubled by that particular question. I told him that I couldn’t talk to him; that the case itself was over for him, but it wasn’t over for the court. But he did seem somewhatdisturbed by that question. What I ended up doing is I ended up giving that juror, and others that asked for it, my business card, and told them that whenthis is over, and overfor the court, that I can talk to them. But I couldn’t talk to them before then. So I gave them some business cards. (RT 5101.) Despite Appellant’s counsel acquiescencein thetrial court’s decision not to answerthe jury’s question, the trial court had a duty, sua sponte, to adequately answerthis question. This is especially so, as explainedbelow, in light of the fact that during the guilt phase, the jury asked a similar question which the trialcourt answered. The failureof the trial court to answerthis question accurately was in violation of state law as well as Appellant’s Sixth, Eighth and Fourteenth Amendmentrights. ///] (ffl I/// -123- B. The Trial Court Had a Sua Sponte Duty to Answerthe Question Where, during deliberations, a jury expresses confusion regarding the meaning or application of the law,the trial court has a mandatory duty to clear up that confusion. (Bollenbach v. United States (1946) 326 USS. 607, 612-613; People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.) In California, section 1138 requires the court provide a jury any information on a point of law which they require. That section reads as follows: After the jury have retired for deliberation, if there be any disagreement between them asto the testimony,or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Uponbeing brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendantor his counsel, or after they have been called. A violation of section 1138 becomesfederal constitutional error when the trial court fails to clarify the law so as to address a jury’s explicit difficulties. (Beardslee v. Woodford (9th Cir. 2004) 358 F.3d 560, 574-575 [court’s refusal to clarify instruction after specific jury requests, coupled with implication that no future clarification would be forthcoming,violated section 1138 and due process]; People v. Weatherford (1945) 27 Cal.2d 401, 420 [section 1138 violation implicates defendant’s right to fair trial]; United States v. Frega (9th Cir. 1999) 179 F.3d 793, 808-811 {confusing -124- response to jury’s questions infringed on defendant’s Sixth Amendment rights|; United States v. Warren (9th Cir. 1993) 984 F.2d 325, 330 [error, not harmless beyond a reasonable doubt, from trial court’s failure to provide a supplemental instruction sufficient to clear up uncertainty which question from deliberating jury had brought to court’s attention].) In this case, it was incumbent uponthetrial court to answer the jury’s question regarding what would happenif the jury deadlocked as to the penalty. This is because the trial court answered a similar question posed by the jury during guilt phase deliberations. During the guilt phase deliberations, the jury sent the trial court a note which asked “If we deadlock on oneparticular special circumstance on Count |, will that cause that count to be dropped?” (CT 789; RT 3723.) Thetrial court answered no. (CT 790.) However, by not answering the similar question regarding what would happenif the jury deadlocked over the penalty, and, as argued in Argument VII, wrongly requiring the jury to continue deliberations after they stated they were deadlocked, those jurors who had been voting for life may well have believed that the entire trial, including the guilt phase, would haveto be retried. In their own mind, rather than force a retrial on both guilt and penalty, these jurors relented by voting for death. -125- Appellant is aware of this Court’s decision in People v. Rodrigues (1994) 8 Cal.4™ 1060, 1193-1194, wherethe jury asked what would happen if the jury deadlocked, andthetrial court, with the agreement of counsel told the jury that they were notto speculate on that possibility and should not considerit in deciding a penalty. (/bid. ) This Court held that the trial court acted properly and to answer that question would cause confusion. ([bid.) However, this case is different. Here, the jury asked more than just a general question regarding what would happenif the jury deadlocked. They specifically asked whether both guilt and penalty phases would have to be tried over again in the event of a deadlock. In addition, as noted, during guilt phase deliberations, the trial court answered the jurors question of the outcome of a hung jury as to someofthe special circumstances by informing them that the underlying count would notbe retried or dismissed Here, by contrast, because the trial court did not answer this question, some jurors may well have thought that the entire guilt and penalty phase would haveto be retried and thus voted for death for that very reason. This is borne out by the fact that after the trial, when the jurors talked to trial counsel and thetrial court, juror numberfive, as noted by the trial court, “appeared to be very troubled by that particular question” and -126- still wanted to know the answer. (RT 5100-5101.) Because the trial court refused to answerthis question, it erred. C. The Error Was Prejudicial As noted above,the failure of the trial court to answerthe jury question regarding what would happenif it deadlocked, violated Appellant’s Sixth Amendmentright to a fair jury trial and his Fourteenth Amendmentright to due process. In addition, the trial court’s error calls into question the reliability of the death sentence handed down bythejury. In People v. Brown (1988) 46 Cal.3d 432, 446-448, this Court clarified that the standard for penalty phaseerroris the “reasonable possibility” harmless error standard. Under this extremely high standard, it is very difficult for the prosecution to establish that any error, let alone a combination of errors, was harmless with respect to the penalty verdict. The Brown standard is “the same in substance and effect” as the Chapman “reasonable doubt” standard. (People v. Ashmus (1991) 54 Cal.3d 932, 965; see People v. Brown, supra, 46 Cal.3d at 467 (conc. opn. of Mosk,J.).) It is a “more exacting standard” than the standard ofPeople v. Watson (1956) 46 Cal.2d 818, 836, used for assessing state law guilt phaseerror. (People v. Brown, supra, 46 Cal. 3d at 447.) -127- Here,the trial court’s failure to answer the questions posed by the jurors cannotbe said to be harmless. Given the fact that trial court, in responseto the jury’s query during guilt phase deliberations, told them that the underlying count would notbe retried or dismissed if they hung on a special circumstance, its refusal to answer their question of what would happen if they hung as to the penalty, may well have caused somejurors to believe that the entire guilt as well as penalty phase would have to be retried. This could well have been the very reason those jurors, after announcing that they were hopelessly deadlocked, ultimately voted for death. Thus the error was prejudicial. X. THE TRIAL COURT PREJUDICALLY ERRED IN RESTRICING DEATH QUALIFICATION VOIR DIRE OF THE JURY A. Factual Background On March 25, 1999, co-defendant Higgins filed a motion for sequestered voir dire of the jury, in what is commonly knownas "Hovey" voir dire (Hovey v. Superior Court (1980) 28 Cal.3d 1, 80) (CT Supp. I, 279-283.) During a hearing held the same day, Appellant’s attorney, along with co-defendant Flagg, joined in that motion. The prosecutor did not object. (RT 381.) However,the trial court denied the motion stating that “I -128- don’t believe that Hovey voir dire is required in this case, nor do I believe that it’s particularly helpful.” (RT 381.) The questionnaire that was subsequently given to the prospective jurors to fill out contained a section dealing with their views on the death penalty. (See e.g. CT Vol. VII, 1472-1479.) This included whether they had any philosophicalor religious beliefs as to the death penalty (RT 1474- 1476.), whether they would always or never imposethe death penalty (RT 1475, 1478.) and whether they could follow the instructions the trial court would give them regarding the death penalty. (RT 147, 1479.) Jury selection commenced on April 5, 1999. Thetrial court’s voir dire consisted of asking the prospective jurors follow-up questionsto clarify certain answers they had given in the questionnaire. (RT 610-706.) After the trial court’s initial voir dire of the jury, Appellant’s attorney began his voir dire. The first juror he questioned was juror number 6265. (RT 720- 721.) In regards to that juror’s view regarding the death penalty the following dialogue took place: | Mr. Leonard: Now, because this is a death penalty case, we haveto lookat the possibility that we may get to a secondphaseofthetrial To get to the second phaseofthe trial, you’d have to find my client guilty of first-degree murder, and allegations of rape, allegations of robbery, on a named victim. A woman. Miss Kim. -129- Then there’s another the (sic) charge to myclient, another attempted murder and robbery. Assuming you foundall those things to be true, you get to the penalty phase, you only have two choices: life without the possibility of parole, or the death penalty. Would you say to yourself because of the nature of the crimes that my client was found guilty of, that you would automatically vote for death, sir? Prospective Juror 6265: Good possibility. Mr. Leonard: Could you consider the other alternative for my clhent? That’s life without possibility of parole? Prospective Juror 6265: It would be considered. Mr. Leonard: So you wouldn’t just say automatically for Mr. Debose,“I would vote death”; would you, sir? Prospective Juror 6265: No. Mr. Leonard: You'd have to consider both penalties? Prospective Juror 6265: Yes. Mr. Leonard: Do you think life without the possibility of parole, go to jail, you die in jail, that that’s a punishment? Prospective Juror 6265: I feel it is somewhat of a punishment. In some cases, not a just punishment. Mr. Leonard: What do you mean by not a just punishment? Prospective Juror 6265: I agree with the death penalty if — whenitis fit. Mr. Leonard: Okay. -130- In somecases you'd say well, for that reason, he only deserves death; is that correct? Prospective Juror 6265: That’s correct Mr. Leonard: But whatlittle bit you know aboutthis case as of right now, what would you say? Prospective Juror 6265: Not guilty. Mr. Leonard: How aboutin the penalty phase? (RT 722-724.) Atthat point, the trial court had a side bar with all counsel and the following discussion took place: The Court: I’m concerned with asking the jurors to preyudge whatthe potential decision would be in a death penalty case, based on the allegations alone. I don’t think it’s proper to do. I think it’s certainly proper to voir dire as to whether or not they would consider both punishments, as whether or not they predetermine what an appropriate punishment should be. But my concern is that eventually, we’re going to now piecemeal it down to what if you found this allegation true, or that allegation true, or guilty on this count, or on that count, what would your decision then be. Mr. Leonard: I don’t think | was basingit on that, Judge. I wasn’t asking this man to prejudge. IfI did, I misspoke. Because I can’t dothat. The Court: I agree. Mr. Leonard: That’s just not right. The Court: I agree. -131- Butit’s just not you. I don’t think it’s proper for anybody,including the prosecution, when they stand up and do their voir dire, to ask the jurors the same question. Mr. Leonard: I agree. The Court: I think the only thing you can dois ask questions whetheror not they have an open mindasto either of the possibilities, and the court can make a determination as to whetheror not there’s a reasonable possibility they could apply either one of those verdicts. Mr. Leonard: The only thing I think you can do is go into somefacts of the case, based on these facts, would you automatically vote death, and never considera life without possibility of parole. That’s about as far as I think you can go. The Court: I think that you’re in treacherous waters, Mr. Leonard. I don’t think it’s appropriate to ask them to prejudgethat. They know what the general allegations are. If you want to say you’ve heard the general allegations, you know, with those general allegations, in mind, you know,are you in a position where you’re automatically going to go one way or the other. But don’t break it town. Don’t ask them to prejudge which factors they would find aggravating or mitigating. I think that’s inappropriate. (RT 724-725.) Thetrial court then asked all other counsel if they wished to be heard. All counsel submitted. (RT 725-726.) As argued below,the trial court’s ruling restricted Appellant’s death qualification voir dire of the jury. This violated Appellant’s Sixth, Eighth -132- and Fourteenth Amendmentrights under the United States Constitution. As a result, Appellant’s convictions and death sentence must be reversed. B. The Trial Court Improperly Restricted Voir Dire Appellant was accused of the gruesome murder, torture and sexual _assault of one woman, and, as opposedto the co-defendants, was also accused of the attempted pre-meditated murder and robbery with a gun of another woman. In addition, there was substantial evidence in aggravation consisting of Appellant possessing shanksinjail, fights in jail, and his possessing and shooting of a firearm shortly after he had been released from the California Youth Authority. In selecting a jury, it was therefore imperative for Appellant’s attorney to determine whetheror not the circumstances of the crimes he was charged with, as well as the factors in aggravation alleged, would induce a juror to vote automatically in favor of death, regardless of the law or of other mitigating evidence in the case. This necessity was both practical and constitutional, for it is well settled that the Fourteenth Amendment ofthe Constitution guarantees a penalty jury free from such prejudice, and assures a voir dire adequate for the selection of impartial penalty jurors. (Morgan v. Illinois (1992) 504 U.S. 719, 729-730, 733-734; Wainwright v. Witt (1985) 469 U.S. 412, 424.) Article I sections 7, 15, and 16 of the California -133- Constitution provides the same protection. (People v. Williams (1997) 16 Cal.4th 635, 666-667.) In addition, the Eighth Amendmentalso guarantees the right to an impartial jury in a capital case because the lack of such a jury denies the right to a reliable penalty determination. (See Caldwell v. Mississippi (1985) 472 U.S. 320, 340.) The constitutional requirement that prospective jurors in a death penalty case be questioned on whethertheir views on the death penalty would interfere with their ability to be impartial is not discharged by general questioning about the juror's overall ability to be fair and impartial. (Morgan vy. Illinois, supra, 502 U.S. at 731.) Nor can the constitutional requirement be dischargedin all cases by questions peggedat a level of abstraction so high as to preclude somereferenceto certain factors in the case which can affect a juror's ability to remain impartial on the question of penalty. (People v. Pinholster (1992) 1 Cal.4th 865, 917-918.) In Appellant’s case, the trial court's view, that death-qualification voir dire could not go into the facts of the case, and was confined only to whatis charged in the information, is wrong. Although voir dire for death- qualification "seeks to determine only the views of the prospective jurors about capital punishmentin the abstract," nonetheless a challenge for cause must be sustained against any prospective juror "who would invariably vote -134- either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances . . . whether or not the circumstance that would be determinative for that juror has been alleged in the charging document." (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1004-1005, emphasis added; People v. Davenport (1995) 11 Cal.4th 1171, 1203-1204; People v. Cash (2002) 28 Cal.4" 703, 719-722.) Thus, this Court in People v. Noguera (1992) 4 Cal.4th 599, foundit properfor the trial court to allow the prosecutor to ask prospective jurors whether they would automatically vote for life imprisonment if the defendant was only 18 or 19 at the time of the murder, and whether they would require the prosecutor to prove multiple victims before imposing a death penalty. (/d., at 645-646.) In People v. Livaditis (1992) 2 Cal.4th 759, this Court upheld the dismissal for cause of a juror whostated she could not vote for the death penalty in the case before her because of lack of a prior murder. (/d. at 772.) Further, in People v. Rich (1988) 45 Cal.3d 1036, this Court sanctioned as within the law, the question: "If the facts in this case disclose that [defendant] is guilty of four separate murders and multiple rapes, including the murder of an eleven-year-old girl who was sexually abused and waskilled by being thrownoff a high bridge, would -135- those facts trigger emotional responses in you that would makeit hard to consider life imprisonment without possibility of parole, or would you under those circumstances vote for the death penalty?” (Ud. at 1104-1105.) Finally, in People v. Cash, supra, this Court reversed the death verdict wherethe trial court prohibited defense counsel from questioning the jurors about evidence in aggravation that the prosecution intendedto introduce. (See also People v. Zambrano(July 30, 2007, S05368) ___ Cal.4™ (conc. & diss. opn. of Kennard, J.).) Appellant realizes that the degree of specificity to be allowed ina permissible area of questioning is within the discretion of the trial court. (Mu’Minv. Virginia (1991) 500 U.S. 415, 424-426, 429;People v. Sabayon | (1997) 15 Cal.4th 795, 823.) For example, in People v. Davenport, supra, 11 Cal.4th at 1204, this Court held that the trial court was within its discretion to deny as too remote death-qualification questioning about childhood sexual victimization suffered by prospective jurors. In People v. Clark (1990) 50 Cal.3d 583, 596, this Court held it to be within thetrial court's discretion to refuse death-qualification questions concerning how the jurors' view of penalty might be affected by evidencethat the victims had suffered serious burn injuries. Finally, in People v. Roybal (1998) 19 Cal.4th 481, 518-519, this Court approved the rejection of questions about -136- "the death penalty for a person whokilled a 65-year-old woman", while also approvingthetrial court's use of the open-ended question, "'In what types of cases/offenses the death penalty should be imposed?” (/d., at 518.) However, the court's discretion to limit voir dire must not conflict with the fundamental right, guaranteed by the State and Federal constitutions, of a fair and impartial jury to determine whether the defendant shall live or die. (Morgan v.Illinois, supra, 504 U.S. 719.) Failure to discharge the duty to exercise such discretion is error (see People v. Bigelow (1984) 37 Cal.3d 731, 742-743; see also People v. Penoli (1996) 46 Cal.App.4th 298, 306), and such discretion cannot be said to have been exercised unless "there is no misconception by thetrial court as to the legal basis for its action." (n re Carmelita B. (1978) 21 Cal.3d 482, 496.) Clearly, the trial court here operated under a misconceptionas to the legal basis for its restriction on defense counsel's voir dire. The error was both serious and of constitutional magnitude. In Appellant’s case, the failure to exercise discretion "gains in significance because on the record in this case it would have been an abuse of discretion" (People v. Bigelow, supra, 37 Cal.3d at 743) to deny more detailed questioning the general facts surrounding the charges as well as the factors in aggravation. The “allegations” the trial court wasreferring to, -137- involved not only the charges offirst degree murder and attempted murder, but the special circumstances of robbery, arson, torture and sexual assault as well as the factors in aggravation. The inflammatory nature of these allegations in a murder case is apparent. The Constitution recognizesthis reality because death qualification, which necessarily applies only in cases of murder, is one of only two subjects for voir dire compelled, as a matter of law, by the Fourteenth Amendment (Morgan v. Illinois, supra, 504 U.S. 719) -- the other one being racial prejudice in a case involving a violent crime alleged to have been committed by a black defendant against a white victim. (Mu’Min v. Virginia, supra, 500 US. at 424.) In People v. Cash, supra, this Court reversed the death sentence wherethe trial court refused to allow trial counsel to voir dire the prospective jurors regarding certain aggravating factors alleged — that as a juvenile the defendant had murdered both of his grandparents. It specifically refused defense counsel to inquire of the prospectivejurors ‘“* whether there are any aggravating circumstances which would cause a prospective juror to automatically vote for the death penalty, without considering the alternative of life imprisonment without possibility of parole.” (/d. At 555.) -138- In finding this to be error, this Court reasoned that such restriction violated the defendant’s constitutional rights explaining as follows: Our decisions have explained that death-qualification voir dire must avoid two extremes. On the one hand,it must not be so abstract that it failed to identify those jurors whose death penalty views would preventor substantially impair the performance of their duties as jurors in the case beingtried. On the other hand, it must not be so specific that it requires the prospective jurors to preyudge the penalty issue based on a summary of the mitigating and aggravating evidencelikely to be presented. [Citation.] In deciding whereto strike the balance in a particular case, the trial courts have considerable discretion. [Citations.}] They may not, however, as thetrial court did here, strike the balance by precluding mention of any general fact or circumstancenot expressly pleaded in the information. [Citations.]| Ud. At 721-722.) (See also People vy. Zambrano, supra, ___Cal.4"(conc. & diss. opn. of Kennard,J.).) In Appellant’s case, as in Cash, the trial court improperly restricted defense counsel from inquiring regarding any general facts not expressly pleaded in the information. Although Appellant’s counsel did ask, without objection, prospective juror number 2738, whether the fact that “‘a woman wasput in the trunk of a car alive and burned” would meanthat he or she would automatically vote for death. (RT 729), and also asked juror number 1589, without objection, if Appellant was found guilty of the murder of Kim and the attempted murder of Dassopoulos would he or she automatically vote for death (RT 741-742), this did not alleviate the error. As noted above, counsel was not allowed to inquire regarding some -139- facts of the case as well as the aggravating factors to be presented in the penalty phase. This wasin contrast to the trial court allowing the prosecutor, over defense objection, to voir dire the jury regarding applying the death penalty when a defendantis not the shooter. (RT 974-976.) The restrictions placed on Appellant’s counsel rendered the voir dire inadequate under the Fourteenth and Eighth Amendments of the UnitedStates Constitution, and under Article I sections 7, 15, 16, and 17 of the California Constitution. C. The Error was Prejudicial. If the inadequacy of voir dire leads a reviewing court "to doubt that [appellant] was sentenced to death by a jury impaneled in compliance with the Fourteenth Amendment, his sentence cannot stand." (Morganv. Illinois, supra, 504 U.S. at 739.) There must be doubtin the instant case, because unquestionably not only the facts surrounding the murder and attempted murder figured decisively in the penalty decision of the jurors, but so too must have the aggravating evidence presented in the penalty phase. (See People v. Lanphear (1980) 26 Cal.3d 814, 831.) Without being told more about the facts of the crimes for which Appellant wasontrial, as well as the aggravating factors to be presented at the penalty phase, there is substantial doubt whether the jury that decided this case had the ability to -140- remain impartial and make a decision based only on the law and evidence-- in short, a jury "Impaneled in accordance with the Fourteenth Amendment." Thus, “by barring any voir dire beyond facts alleged on the face of the charging document, the trial court created a risk that a juror who would automatically vote to impose the death penalty on a defendant who had previously committed murder was empanelled and acted on those views, thereby violating defendant’s due process right to an impartial jury. {citation.]” (People v. Cash, supra, 28 Cal.4" at 723.) Furthermore, because ofthe trial court’s error it is impossible for this Court to determine from the record whether any ofthe individuals seated as jurors held such a disqualifying view of the death penalty. (/bid.) Asa result, this error cannot be held harmless and Appellant's sentence of death must be reversed. (bid; See also Morganv. Illinois, supra, at 739.) ITI] //// [/// | ///] //// //// //// -141- XI. THE TRIAL COURT ERRED IN FAILING TO GRANTA MISTRIAL AFTER THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCTIN HIS OPENING STATEMENT BY ARGUING THAT THE JURY ACTS AS THE CONSCIENCE OF THE COMMUNITY A. Introduction During his opening statementto the jury at the beginning ofthe penalty phase, the prosecutor outlined the variousacts in aggravation against Appellant and co-defendant’s that he intended to prove. Healso statedhis belief that the factors in aggravation would substantially outweigh those in mitigation. Finally he told the jury the following: And that after you decide that all these factors in aggravation substantially outweigh factors in mitigation,thejury will then have the opportunity to then find a verdict of death. And each of you will have to make that decision. And then you will have to make that decision collectively. And in making that decision collectively, you will be acting as a conscience ofthe community. (RT 3810.) (emphasis added.) At that point co-defendant’s counsel objected and the trial court sustained that objection. (RT 3810.) Subsequently, counsel for co-defendant Flagg movedfor a mistrial. (RT 3811-3812.) Counsel for Appellant joined in that motion, which was denied by the trial court. (RT 3813.) As argued -142- below,the trial court erred in not granting the motion for mistrial based upon prosecutorial misconduct. As such, Appellant’s death sentence must be reversed. B. The Prosecutor’s Comment Was Improper and . Violated Appellant’s Rights Under the Sixth,Eighth and Fourteenth Amendments of the United States Constitution; Therefore the Trial Court Erred in not Granting a Mistrial Prosecutorial misconduct does not require an intentional act by the district attorney. This Court has held that "the term prosecutorial 'misconduct' is somewhat of amisnomerto the extent that it suggests a prosecutor must act with a culpable state of mind. A moreapt description of the transgression is prosecutorial error.” (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 .) Thus, the intent of the prosecutor is irrelevant. "Because we consider the effect of the prosecutor's action on the defendant, a determination ofbad faith or wrongful intent by the prosecutoris not required for a finding of prosecutorial misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.) In addressing the jury, a prosecutor cannot make appeals to passion and prejudice. (Viereck v. United States (1943) 318 US. 236, 247-248.) This is particularly so in the penalty phase of a capital case where "a prosecutor may not make an appeal to the jury that is directed to passion or -143- prejudice rather than to reason andto an understanding of the law." (Cunningham v. Zanf(11th Cir. 1991) 928 F.2d 1006, 1020.) This is exactly what the prosecutor did in this case. The Eighth Amendment requires that the capital sentencing decision must be based uponthe facts and circumstances of the crime and the offender's character and background. (Gregg v. Georgia (1976) 428 U.S. 153, 189.) Moreover, improper remarks such as the one madebythe prosecutorin this case, can deny the defendant due process under the Fourteenth Amendmentas well as the right to a fair trial under the Sixth Amendment. (Darden v. Wainwright (1986) 477 U.S. 168, 181.) The conscience of the community has norole in the jury's individualized sentencing decision. To appeal to the conscience ofthe community was a blatant appeal to emotion in an effort to inflame the jury against Appellant. In essence, the prosecution wastelling the jury to send a message by sentencing Appellant to death. This was improper. (See United States v. Solivan (6th Cir. 1991) 937 F.2d 1146.) Moreover, the fact that the trial court offered to admonish the jury (RT 3813), was not sufficient to cure any prejudice from the improper comment. As a general rule, the jury is presumedto obey the court's admonitions and instructions. (People v. Adcox (1988) 47 Cal.3d 207, -144- 253.), and while in some cases, an admonition might be a sufficient remedy, in Appellant’s case, given the prejudicial nature of the crimes, as well as the evidence in aggravation, it was not possible to "unring the bell.” (Peoplev. Hill, supra, 17 Cal.4th 800, 845.) Appellant was more prejudiced bythis commentthan the co-defendants, given the fact that he had been found guilty of the attempted premeditated murder and robbery of Dassopoulosas well as having used a gun to murder Kim. Thus, any admonition given by the court would not have undone the harm to Appellant. C. The Error was Prejudicial Asstated in previous arguments, a violation of Appellant’s federal constitutional rights require that the prosecution must show that the error was harmless beyond a reasonable doubt. (Chapman v. California (1979) 386 U.S. 18.) In this case the error cannot be shown to be harmless. Here, the jury deliberated for a lengthy period of time, and after taking several ballots, announced that it was deadlockedas to the penalty. This factor alone requires the trial court to give higherscrutiny to prosecutorial misconduct that violates Appellant’s constitutional rights. Moreover, as argued above, Appellant was, by the jury’s verdict, the more culpable of the defendants, and thus, the mostlikely to be prejudiced by prosecutorial misconduct. Because the comments of the prosecutor violated Appellant’s -145- constitutional rights and were prejudicial, the trial court erred in not granting Appellant’s motion for a mistrial. Thus, his death sentence must be reversed. XI. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED TO APPELLANT'S CASE, VIOLATES THE UNITED STATES CONSTITUTION A. Introduction Manyfeatures of California’s capital sentencing scheme, alone or in combination with each other, violate the United States Constitution. Because challenges to most of these features have been rejected by this Court, Appellant presents these arguments here in an abbreviated fashion sufficient to alert the Court to the nature of each claim andits federal constitutional grounds, and to provide a basis for the Court’s reconsideration of each claim in the context of California’s entire death penalty system. To date the Court has considered each of the defects identified below in isolation, without considering their cumulative impact or addressing the functioning of California’s capital sentencing scheme as a whole. This analytic approachis constitutionally defective. As the U.S. Supreme Court -146- has stated, “[t]he constitutionality of a State’s death penalty system turns on review of that system in context.” (Kansasv. Marsh (2006) 126 S.Ct. 2516, 2527, fn. 6.)”° See also, Pulley v. Harris (1984) 465 U.S. 37, 51 (while comparative proportionality review is not an essential component of every constitutional capital sentencing scheme,a capital sentencing scheme may ~ be so lacking in other checks on arbitrariness that it would not pass constitutional muster without such review.). Whenviewed as a whole, California’s sentencing schemeis so broad in its definitions of whois eligible for death and so lacking in procedural safeguards that it fails to provide a meaningful or reliable basis for selecting the relatively few offenders subjected to capital punishment. Further, a particular procedural safeguard’s absence, while perhaps not constitutionally fatal in the context of sentencing schemesthat are narrower or 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. °° In Marsh, the high court considered Kansas’s requirementthat death be imposed if a jury deemed the aggravating and mitigating circumstances to be in equipoise and on that basis concluded beyond a reasonable 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 -147- California’s death penalty statute sweeps virtually every murderer into its grasp. It then allows any conceivable circumstance of a crime — even circumstances squarely opposed to each other(e.g., the fact that the victim was young versus the fact that the victim wasold, the fact that the victim waskilled at homeversus the fact that the victim was killed outside the home) — to justify the imposition of the death penalty. Judicial interpretations have placed the entire burden of narrowingthe class of first degree murderers to those most deserving of death on section 190.2, the “special circumstances”section of the statute — but that section was specifically passed for the purpose of making every murderereligible for the death penalty. There are no safeguards in California during the penalty phase that would enhancethereliability of the trial’s outcome. Instead, factual prerequisites to the imposition of the death penalty are found by jurors who are not instructed on any burden of proof, and who maynot agree with each other at all. Paradoxically, the fact that “death is different” has been stood on its head to mean that procedural protections taken for granted in trials for lesser criminal offenses are suspended when the question is a finding thatis foundational to the imposition of death. The result is truly a “wanton and imprisonmentis the appropriate sentence for a capital conviction.” (126 S.Ct. at 2527.) -148- freakish” system that randomly chooses among the thousands of murderers in California a few victims of the ultimate sanction. B. Appellant’s Death Penalty is Invalid Because Penal Code Section 190.2 is Impermissibly Broad To avoid the Eighth Amendment’s proscription against cruel and unusual punishment, a death penalty law must provide a “meaningful basis for distinguishing the few cases in which the death penalty is imposed from the 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, by rational and objective criteria, the class of murderers eligible for the death penalty. According to this Court, the requisite narrowing in California is accomplished by the “special circumstances” set out in section 190.2. (People v Bacigalupo (1991) 1 Cal.4th 103, 148.) The 1978 death penalty law cameinto being, however, not to narrow those eligible for the death penalty but to make all murderers eligible. (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 November 7, 1978. At the time of the offense charged -149- against Appellant the statute contained thirty-one special circumstances” purporting to narrow the category offirst degree murders to those murders most deserving of the death penalty. These special circumstances are so numerous andso broad in definition as to encompassnearly every first- degree murder, per the drafters’ declared intent. In California, almost all felony-murders are now special circumstance cases, and felony-murder cases include accidental and unforeseeable deaths, as well as acts committed in a panic or underthe 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 extended to virtually all intentional murders by this Court’s construction of the lying-in- wait special circumstance, which the Court has construed so broadly as to encompassvirtually all such murders. (See People v. Hillhouse (2002) 27 Cal.4th 469, 500-501, 512-515.) These categories are joined by so many other categories of special-circumstance murderthat the statute now comes close to achieving its goal of making every murderereligible for death. The United States Supreme Court has madeit clear that the narrowing function, as opposed to the selection function, is to be *I This figure does not include the “heinous, atrocious, or cruel” special circumstance declared invalid in People v. Superior Court (Engert) (1982) 31 Cal.3d 797. -150- accomplished bythe legislature. The electorate in California and the drafters of the Briggs Initiative threw down a challengeto the courts by seeking to make every murderereligible for the death penalty. This Court should accept that challenge, review the death penalty scheme currently in effect, and strike it downassoall-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 law. (See Section E. of this Argument, post). C. Appellant’s Death Penalty is Invalid Because Penal Code Section 190.3, subd. (a) as Applied Allows Arbitrary and Capricious Imposition of Death in Violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution Section 190.3(a) violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution in that it has been applied in such a wanton and freakish mannerthat almostall features of every murder, even features squarely at odds with features deemed supportive of death sentences in other cases, have been characterized by prosecutors as “aggravating” within the statute’s meaning. Factor(a), listed in section 190.3, directs the jury to consider in aggravation the “circumstances of the crime.” This Court has never applied a limiting construction to factor (a) other than to agree that an aggravating -151- 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 “hatredofreligion,” or threatened witnessesafter his arrest,”° or disposed of the victim’s body in a mannerthat precludedits recovery.”® It also is the basis for admitting evidence under ‘the rubric of “victim impact” that is no more than an inflammatory presentation by the victim’s relatives of the prosecution’s theory of how the crime was committed. (See, e.g., People v. Robinson (2005) 37 Cal.4th 592, 644-652, 656-657.) The purposeof section 190.3 is to inform the jury of whatfactors it should consider in assessing the appropriate penalty. Although factor (a) has survived a facial Eighth Amendmentchallenge (Tuilaepa v. California **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 3People v. Walker (1988) 47 Cal.3d 605, 639, fn. 10, cert. den., 494 U.S. 1038 (1990). *4People v. Nicolaus (1991) 54 Cal.3d 551, 581-582, cert. den., 112 S. Ct. 3040 (1992). ° People v. Hardy (1992) 2 Cal4th 86, 204, cert. den., 113 S. Ct. 498. 26 People v. Bittaker (1989) 48 Cal.3d 1046, 1110, fn.35, cert. den. 496 U.S. 931 (1990). -152- (1994) 512 U.S. 967), it has been used in waysso arbitrary and contradictory as to violate both the federal guarantee of due process of law and the Eighth Amendment. | Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstance ofthe crime, even those that, from case to case, reflect starkly opposite circumstances. (Tuilaepa, supra, 512 U.S. at pp. 986-990, dis. opn. of Blackmun,J.) Factor (a) is used to embrace facts 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 which the jury is urged to weigh on death’s side of the scale. In practice, section 190.3’s broad “circumstances of the crime” provision licenses indiscriminate imposition of the death penalty upon no basis other than “that a particular set of facts surrounding a murder,. . . were enoughin themselves, and without some narrowingprinciples to apply to those facts, to warrant the imposition of the death penalty.” (Maynardv. 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 sees that every fact without exception that is part of a -153- 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. D. Appellant’s Death Penalty is Invalid Because California’s Death Penalty Statute Contains No Safeguards to Avoid Arbitrary and Capricious Sentencing, Deprives Defendants of the Right to a Jury Determination of Each Factual Prerequisite to a Sentence of Death; it Therefore Violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution As shown supra, California’s death penalty statute does nothing to narrow the pool of murderers to those most deserving of death in eitherits “special circumstances”section (section190.2) or in its sentencing guidelines (section 190.3). Section 190.3(a) allows prosecutors to argue that every feature of a crime that can bearticulated is an acceptable aggravating circumstance, even features that are mutually exclusive. Furthermore, there are none of the safeguards common to other death penalty sentencing schemesto guard against the arbitrary imposition of death. Juries do not have to make written findings or achieve unanimity as to aggravating circumstances. They do not have to find beyond a reasonable doubt that aggravating circumstancesare proved, that they outweigh the mitigating circumstances, or that death is the appropriate penalty. In fact, except as to the existence of other criminal activity and -154- prior convictions, juries are not instructed on any burden ofproofatall. Not only is inter-case proportionality review not required; it is not permitted. Under the rationale that a decision to impose death is “moral” and “‘normative,” the fundamental components ofreasoned decision-making that apply to all other parts of the law have been banished from the entire process of making the most consequential decision a juror can make — whether or not to condemn a fellow humanto death. 1. Appellant’s Death Verdict Was Not Premisedon Findings Beyond a Reasonable Doubt by a Unanimous Jury That One or More Aggravating Factors Existed and That These Factors Outweighed Mitigating Factors, Thus His Constitutional Right to Jury Determination Beyond a Reasonable Doubt ofAll Facts Essential to the Imposition ofa Death Penalty Was Thereby Violated Except as to prior criminality, Appellant’s jury was nottold that it had to find any aggravating factor true beyond a reasonable doubt. The jurors were nottold that theyneeded to agreeat all on the presence of any particular aggravating factor, or that they had to find beyond a reasonable doubt that aggravating factors outweighed mitigating factors before determining whether or not to imposeadeath 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, -155- 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 pronouncementhas 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) 127 S.Ct. 856 [hereinafter Cunningham]. In Apprendi, the high court held that a state may not impose a sentence greater than that authorized bythe jury’s simple verdict of guilt unless the facts supporting an increased sentence (other than a prior conviction) are also submitted to the jury and proved beyonda reasonable doubt. (Ud. at p. 478.) 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. (/d., at 593.) The court acknowledgedthat in a prior case reviewing Arizona’s capital sentencing law (Walton v. Arizona (1990) 497 U.S. 639) it had held that -156- aggravating factors were sentencing considerations guiding the choice between life and death, and not elements of the offense. (/d., at 598.) The court found that in light ofApprendi, Walton no longer controlled. Any factual finding which increasesthe 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 considered the effect ofApprendi and Ring in a case wherethe sentencing judge wasallowedto impose an “exceptional” sentence outside the normal range uponthe finding of “substantial and compelling reasons.” (Blakely v. Washington, supra, 542 U.S. at 299.) The state of Washingtonset forth illustrative factors that included both aggravating and mitigating circumstances; one of the former was whether the defendant’s conduct manifested “deliberate cruelty” to the victim. (/bid.) The Supreme Court ruled that this procedure was invalid because it did not comply withthe right to a jury trial. (/d. at 313.) In reaching this holding, the Supreme Court stated that the governing tule 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 -157- ‘statutory maximum’is notthe maximum sentence a judgemayimpose after finding additional facts, but the maximumhe may impose without any additional findings.” (/d. at 304; italics in original.) This line of authority has been consistently reaffirmed by the high court. In United States v. Booker (2005) 543 U.S. 220, the nine justices split into different majorities. Justice Stevens, writing for a 5-4 majority, foundthat the United States Sentencing Guidelines were unconstitutional because they set mandatory sentences based on judicial findings made by a preponderance ofthe evidence. Bookerreiterates the Sixth Amendment requirementthat “{a]ny fact (other than a prior conviction) whichis 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 the legislature. (Cunningham v. California, supra.) In so doing,it explicitly rejected the -158- reasoning used bythis Court to find that Apprendi and Ring have no application to the penalty phase of a capitaltrial. a. In the Wake ofApprendi, 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 of prior criminality relied upon as an aggravating circumstance — and evenin that context the required finding need not be unanimous. (People v. Fairbank, supra; see also Peoplev. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are “moral and . . . not factual,” and therefore not “susceptible to a burden-of- proof quantification’’]-) California statutory law and jury instructions, however, do require fact-finding before the decision to impose death or a lesser sentence is 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 -159- outweigh any and all mitigating factors.’ As set forth in California’s “principal sentencing instruction” (People v. Farnam (2002) 28 Cal.4th 107, 177), which was read to Appellant’s jury, ’an aggravating factor is any fact, condition or event attendine the commission ofa crime which increases its guilt or enormity, or adds to its injurious consequences which is above and beyond the elements ofthe crimeitself’ (CALJIC No.8.88; (RT 4931-4932.) (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. And before the decision whether or not to impose death can be made,the jury must find that aggravating factors substantially outweigh mitigating factors.’’ These factual determinations are essential prerequisites to death-cligibility, but do not meanthat deathis the inevitable verdict; the jury can still reject death as the appropriate punishment notwithstanding these factual findings.”* *7 This Court has acknowledgedthatfact-finding is part of a sentencing yury’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.) *’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 impose a sentenceof life in prison. (People v. Allen (1986) -160- This Court has repeatedly soughtto reject the applicability of Apprendi and Ring by comparing the capital sentencing processin California to “a sentencing court’s traditionally discretionary decision to impose one prison sentence rather than another.” (People v. Demetroulias (2006) 39 Cal-4th 1, 41: People v. Dickey (2005) 35 Cal.4th 884, 930: People v. Snow (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 off Apprendiand Blakely in non-capital cases. 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 as to 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 prescribedsentencing range.” (35 Cal.4th at 1254.) 42 Cal.3d 1222, 1276-1277; People v. Brown (Brown JI) (1985) 40 Cal.3d 512, 541.) -161- The U.S. Supreme Court expl icitly rejected this reasoning in Cunningham. 29 In Cunningh am the principle that any fact which exposed a defendant to a greater potenti al sentence must be found by a jury to be true beyond a reasonable doubt wa s applied to California’s Dete rminate Sentencing Law. The high co urt examined whether or not the circumstances in aggravation were factual in nature, and co ncluded they were, after a review of the r elevant rules of court. (127 S.Ct., supra, at 867- 868.) That was the end of the matter: Black's interpretation of the DSL “violates Apprendi’s bright-li ne rule: Except for a prior con viction, ‘any fact that increases the penalty for a crime beyondthe prescr ibed statutory maximum mustbe submitted to a jury, and found beyond a reasonable doubt.’ [citation omitted].” (Cunningham, supra, at 873.) Cunningham then examined th is Court’s extensive developm ent of why an interpretation of the D SL that allowed continued ju dge-based finding of fact and sentencing was reasonable, and concluded that “it is comforting, but beside the poi nt, that California’s system r equires judge- determined DSL sentences to be reasonable.” (/d., at 8 76.) oe 29 Cunningham cited with app roval Justice Kennard’s langu age in concurrence and dissent in Bla ck (“Nothing in the high court’ s majority opinions in Apprendi, Blakely, and Book er suggests that the constituti onality of a state’s sentencing scheme turns on wh ether, in the words of the majo rity here,it involves sea ype of factfinding ‘that tr aditionally has been performed by a judge." (Black, 35 Cal.4th at 1253; Cunningha m, supra, at 873.) -162- The Black court's examination of the DSL, in short, satisfied it that California's sentencing system does not implicate significantly the concerns underlying the Sixth Amendment's jury-trial guarantee. Our decisions, however, leave no room for such an examination. Asking whether a defendant's basic jury-trial right is preserved, though somefacts essential to punishmentare reserved for determination by the judge, we havesaid, 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 874.) In the wake of Cunningham,it is crystal-clear that in determining whether or not Ring and Apprendi apply to the penalty phase ofa capital case, the sole relevant question is whether or not there is a requirement that any factual findings be made before a death penalty can be imposed. In its effort to resist the directions ofApprendi, this Court held that since the maximum penalty for one convicted of first degree murder with a special circumstance is 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 beyond the prescribed statutory maximum’(citation omitted), Ring imposes no new constitutional requirements on California’s penalty phase proceedings.” (People v. Prieto,supra, 30 Cal.4th at p. 263.) -163- 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 pursuant to the DSL, but Cunningham recognizedthat the middle rung was the most severe penalty that could be imposedby the sentencing judge without further factual findings: “In sum, California's DSL, and the rules governing its application, direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts — whetherrelated to the offense or the offender — beyond the elements of the charged offense.” (Cunningham, supra, at 867.) Arizona advancedprecisely the same argument in Ring. It pointed out that a finding offirst degree murder in Arizona,like a finding of one or more special circumstances in California, leads to only two sentencing options: death or life imprisonment, and Ring was therefore 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 U.S., at 494, 120 S.Ct. 2348. In effect, “the required finding [of an *’Section 190, subd. (a) provides as follows: “Every person guilty of murderin the first degree shall be punished by death, imprisonmentin the state prison forlife without the possibility of parole, or imprisonmentin the state prison for a term of 25 yearsto life.” -164- 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 murderin Arizona, a California conviction offirst degree murder, even with a finding of one or more special circumstances, “authorizes a maximum penalty of death only in a formal sense.” (Ring, supra, 530 U.S. at 604.) Section 190, subd. (a) provides that the punishmentfor first degree murderis 25 years to life, 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 LWOPnor death can be imposed unlessthe jury finds a special circumstance (section 190.2). Death is not an available option unless the jury makes further findings that one or more aggravating circumstancesexist, and that the aggravating circumstancessubstantially outweigh the mitigating circumstances. (Section 190.3; CALJIC 8.88 (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 a reasonable doubt.” (Ring, 530 U.S. at 604.) In Blakely, the high court made it clear that, as Justice Breyer complained in dissent, “‘a jury must find, not only the facts that make up the crime of which the offender is charged, but also all (punishment- -165- increasing) facts about the way in which the offender carried out that crime.” (/d., 124 S.Ct. at 2551; emphasis in original.) The issue of the Sixth Amendment’s applicability hinges on whether as a practical matter, the sentencer must makeadditional findings during the penalty phase before determining whether or 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 FactorsIs a Factual Question That Must Be Resolved Beyond a_ Reasonable Doubt A California jury must first decide whether any aggravating circumstances, as defined by section 190.3 and the standard penalty phase instructions, exist in the case beforeit. If so, the jury then weighs any such factors against the proffered mitigation. A determination that the aggravating factors substantially outweigh the mitigating factors — a prerequisite to imposition of the death sentence — is the functional equivalent of an element of capital murder, andis therefore subject to the -166- protections of the Sixth Amendment. (See State v. Ring 65 P.3d 915, 943 (Az. 2003); 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).?') No greater interest is ever at stake than in the penalty phaseof a capital case. (Mongev. California (1998) 524 U2.S. 721, 732 [“the death penalty is unique in its severity and its finality”].)” As the high court stated in Ring, supra, 122 S.Ct. at pp. 2432, 2443: Capital defendants, no less than non-capital defendants, we conclude,are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. ... The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminishedif it encompassed the fact-finding necessary to increase a defendant’s sentence by two years, but not the fact-finding necessary to put him to death. *! See also Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role ofthe Jury in Capital Sentencing (2003) 54 Ala L. Rev. 1091, 1126-1127 (noting that all features that the Supreme Court regarded in Ring as significant apply not only to the finding that an aggravating circumstance is present but also to whether aggravating circumstances substantially outweigh mitigating circumstances, since both findings are essential predicates for a sentence of death). * In its Monge opinion, the U.S. Supreme Court foreshadowed Ring, and expressly stated that the Santosky v. Kramer((1982) 455 U.S. 745, 755)rationale for the beyond-a-reasonable-doubt burden of proof requirement applied to capital sentencing proceedings: “/I/n a capital sentencing proceeding,as in a criminal trial, ‘the interests of the defendant [are] of such magnitudethat . . . they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.’ ([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).)” (Monge v. California, supra, 524 U.S.at p. 732 (emphasis added).) -167- Thelast step of California’s capital sentencing procedure, the decision whether to impose death or life, is a moral and a normative one. This Court errs greatly, however, in using this fact to allow the findings that make oneeligible for death to be uncertain, undefined, and subject to dispute not only as to their significance, but as to their accuracy. This Court’s refusal to accept the applicability ofRing to 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 United States Constitution Require That the Jury in a Capital Case Be Instructed That They May Impose a Sentence ofDeath Only IfThey 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 outcomeofajudicial proceeding necessarily depends on an appraisal of the facts. “[TJhe procedures by which the facts of the case are determined assume an importancefully as great as the validity of the substantive rule of law to be applied. And the more important the rights at -168- stake the more important must be the procedural safeguards surrounding those rights.” (Speiser v. Randall (1958) 357 U.S. 513, 520-521.) The primary procedural safeguard implantedin the criminaljustice system relative to fact assessmentis the allocation and degree of the burden of proof. The burden of proofrepresents the obligation of a party to establish a particular degree of belief as to the contention sought to be proved. In criminal cases the burdenis rooted in the Due Process Clause of the Fifth and Fourteenth Amendment. (/n re Winship (1970) 397 U.S. 358, 364.) In capital cases “the sentencing process, as well as thetrialitself, mustsatisfy 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 phaseofa capital trial, when life is at stake, must be beyond a reasonable doubt. This is required by both the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment. b. Imposition of Life or Death The requirements of due process relative to the burden of persuasion generally depend uponthe significance of what is at stake and the social -169- goal of reducing the likelihood of erroneousresults. (Winship, supra, 397 USS. 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 Cal3d 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 (appointment of conservator).) The decision to take a _ person’s life must be made under no less demandinga 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 howtherisk of error should be distributed between the litigants... . When the State brings a criminal action to deny a defendantliberty or life, . . . “the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards ofproof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” [Citation omitted.] The stringency of the “beyond a reasonable doubt” standard bespeaksthe ‘weight and gravity’ of the private interest affected [citation omitted], society’s interest in avoiding erroneous convictions, and a judgmentthat those interests together require that -170- “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 standardsthat leave determinations unusually open to the subjective values of the [jury].” (Santosky, supra, 455 U.S. at p. 763.) Imposition of a burden of proof beyond a reasonable doubt can be effective in reducingthis risk of error, since that standard has long proven its worth as “a prime instrument for reducing the risk of convictions resting on factual error.” (Winship, supra, 397 US. at p. 363.) Adoption of a reasonable doubt standard would not deprive the State of the powerto impose capital punishment; it would merely serve to maximize “reliability in the determination that death is the appropriate punishmentin a specific case.” (Woodson v. North Carolina (1976) 428 U.S. 280, 305.) The only risk of error suffered by the State under the stricter burden of persuasion would be the 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 requirement to capital sentencing proceedings: “/I/n a capital sentencingproceeding, as in -171- a criminaltrial, ‘the interests of the defendant [are] of such magnitude that ... they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.’ ((Bu/lington 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).)” (Monge v. California, supra, 524 U.S. at p. 732 (emphasis added).) The sentencer of a person facing the death penalty is required by the due process and Eighth Amendmentconstitutional guarantees to be convinced beyond a reasonable doubt not only are the factual bases for its decision true, but that death is the appropriate sentence. 3. California’s Death Penalty Statute Violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution by Failing to Require That the Jury Base Any Death Sentence on Written Findings Regarding Aggravating Factors The failure to require written or other specific findings by the jury regarding aggravating factors deprived appellant of his federal due process and Eighth Amendmentrights to meaningful appellate review. (California v. Brown (1987) 479 U.S. 538, 543; Gregg v. Georgia, supra, 428 U.S. at p. 195.) Especially given that California juries have total discretion without any guidance on howto weigh potentially aggravating and mitigating -172- circumstances (People v. Fairbank, supra), there can be no meaningful appellate review without written findings becauseit will otherwise be impossible to “reconstruct the findings of the state trier of fact.” (See Townsend vy. 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 who believes that he or she was improperly denied parole must proceedvia a petition for writ of habeas corpusandis required to allege with particularity the circumstances constituting the State’s wrongful conduct and show prejudice flowing from that conduct. Un re Sturm (1974) 11 Cal.3d 258.) The parole board is therefore required to state its reasons for denying parole: “It is unlikely that an inmate seeking ~ to establish that his application for parole wasarbitrarily denied can make necessary allegations with the requisite specificity unless he has some -173- knowledgeof the reasons therefore.” (/d., 11 Cal.3d at p. 267.)° The same analysis applies to the far graver decision to put someoneto death. In a non-capital case, the sentencer is required by California law to state on the record the reasons for the sentence choice. (Section 1170, subd. (c).) Capital defendants are entitled to more rigorous protections than those afforded non-capital defendants. (Harmelin v. Michigan, 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 findings are essential for a meaningful review of the sentence imposed. (See Mills v.Maryland (1988) 486 U.S. 367, 383, fn. 15.) Even where the decision to imposedeath is “normative” (Peoplev. Demetrulias (2006) 39 Cal.4th 1, 41-42) and “moral” (People v. 3 determination of parole suitability shares many characteristics with the decision of whether or not to impose the death penalty. In both cases, the subject -has already been convicted of a crime, and the decision-maker must 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.) -174- Hawthorne, supra, 4 Cal.4th at p. 79), its basis can be, and should be, articulated. The importance of written findings is recognized throughoutthis country; post-Furman (Furman v. Georgia (1972) 408 U.S. 238) state 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 producedbythe 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 doubt the existence of aggravating factors and that such factors are not outweighed by mitigating factors].) The failure to require written findings thus violated not only federal due process and the Eighth Amendmentbutalso the right to trial by jury guaranteed by the Sixth Amendment. -175- 4. California’s Death Penalty Statute as Interpreted by this Court Forbids Inter-Case Proportionality Review, Thereby Guaranteeing Arbitrary, Discriminatory, or Disproportionate Impositions of the Death Penalty . 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 court, while declining to hold that comparative proportionality review is an essential component of every constitutional capital sentencing scheme,noted the possibility that “there could be a capital sentencing schemeso lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review.” California’s 1978 death penalty statute, as drafted and as construed by this Court and applied in fact, has become just such a sentencing scheme. The high court in Harris, in contrasting the 1978 statute with the 1977 law -176- which the court upheld against a lack-of-comparative-proportionality- review challenge, itself noted that the 1978 law had “greatly expanded”the list of special circumstances. (Harris, 465 U.S. at 52, fn. 14.) That number has continued to grow, and expansive judicial interpretations of section 190.2’s lying-in-wait special circumstance have madefirst degree murders that can not be charged with a “special circumstance”a rarity. As wehaveseen, that greatly expandedlist fails to meaningfully narrow the pool of death-eligible defendants and hence permits the same ‘sort of arbitrary sentencing as the death penalty schemesstruck down in Furman v. Georgia, supra. (See Section A of this Argument, ante.) The statute lacks numerous other procedural safeguards commonlyutilized in other capital sentencing jurisdictions (see Section C, ante), and the statute’s principal penalty phase sentencing factor hasitself 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 absencerenders that scheme unconstitutional. Section 190.3 does not require that either the trial court or this Court undertake a comparison between this and other similar cases regarding the relative proportionality of the sentence imposed,i.e., inter-case -177- proportionality review. (See People v. Fierro (1991) 1 Cal.4th at p. 253.) The statute also does not forbid.it. The prohibition on the consideration of any evidence showingthat death sentences are not being charged or imposedon similarly situated defendants is 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 now violates the Eighth Amendment. 5. The Prosecution May NotRelyin the Penalty Phase on Unadjudicated Criminal Activity; Further, Even IfIt 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 Any use of unadjudicated criminal activity by the jury as an aggravating circumstance under section 190.3, factor (b), violates due process and the Fifth, Sixth, Eighth, and Fourteenth Amendments, rendering a death sentence unreliable. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578; State v. Bobo (Tenn. 1987) 727 S.W.2d 945.) Here, the prosecution presented extensive evidence regarding unadjudicated criminal activity allegedly committed by Appellant including the possession of shanksin jail as well as fights in the jail and which the -178- prosecution devoted a portion of its closing argument to arguing these alleged offenses as factors in aggravation. (RT 4942-4943, 4945- 4951,5045-5046.) The United States 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 Amendmentand the jury trial guarantee of the Sixth Amendment, the findings prerequisite to a sentence ofdeath must be made beyond a reasonable doubtby a jury acting as a collective entity, Thus, even if it were constitutionally permissible to rely upon alleged unadjudicated criminal activity 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; nor is such an instruction genérally provided for under California’s sentencing scheme. (CT 855; RT 4920.) E. The California Sentencing Scheme Violates the Equal Protection Cause of the United States Constitution by Denying Procedural Safeguards to Capital Defendants Which are Afforded to Non- Capital Defendants As noted in the preceding arguments, the United States Supreme Court has repeatedly directed that a greater degree ofreliability is required -179- whendeath is to be imposed andthat courts must be vigilant to ensure procedural fairness and accuracy in fact-finding. (See, e.g., Monge v. California, supra, 524 U.S. at pp. 731-732.) Despite this directive California’s death penalty schemeprovidessignificantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes. This differential treatment violates the constitutional guarantee of equal protection of the laws. Equal protection analysis begins with identifying the interest at stake. “Personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and the United States Constitutions.” (People v. Olivas (1976) 17 Cal.3d 236, 251.) If the interest is “fundamental,” then courts have “adopted anattitude of active and critical analysis, subjecting the classification to strict scrutiny.” (Westbrook vy. 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 -180- morestrict, and any purported justification by the State of the discrepant treatment be even more compelling becausethe interest at stake is not simply liberty, but life itself. 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 41.) Howeverapt or inapt the analogy, Californiais in the unique position of giving persons sentenced to death significantly fewer procedural protections than a person | being sentenced to prison for receiving stolen property, or possessing cocaine. An enhancingallegation in a California non-capital case must be found true unanimously, and beyond a reasonable doubt. (See, e.g., sections 1158, 1158a.) When a California judge is considering which sentence is appropriate in a non-capital case, the decision is governed by court rules. California Rules of Court, rule 4.420, subd. (e) provides: “The **“