PEOPLE v. REED

Appellant’s Reply Brief

Cal.December 24, 2013

SUPREME COURT COPY 5082776 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLEOF THE STATE OF CALIFORNIA 5082776 Plaintiff and Respondent Los Angeles County Vv. Superior Court No. TA037369-01 ENNIS REED, Defendant and Appellant FILEDS DEC 2 4 2013 APPELLANT’S REPLY BRIEF Frank A. McGuire Clerk On Automatic Appeal from a Judgment of Death Deputy Renderedin the State of California, Los Angeles County HONORABLE JOHN J. CHEROSKE, JUDGE GAIL HARPER aecene? Attorney at Law a P. O. Box 330057 get 462 “a San Francisco, CA 94133 yprene ZoV Telephone: (415) 291-8469 CLER* State Bar No. 104510 (Crimlaw5@gmail.com) Attorney for Appellant by appointmentof the California Supreme Court bh focshDEATE PEGEITY inl 5082776 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA Plaintiff and Respondent V. ENNIS REED, Defendant and Appellant 5082776 Los Angeles County Superior Court No. TA037369-01 APPELLANT'S REPLY BRIEF On Automatic Appeal from a Judgment of Death Renderedin the State of California, Los Angeles County HONORABLEJOHNJ. CHEROSKE, JUDGE GAIL HARPER Attorney at Law P. O. Box 330057 San Francisco, CA 94133 Telephone: (415) 291-8469 State Bar No. 104510 (Crimlaw5@gmail.com) Attorney for Appellant by appointmentof the California Supreme Court TABLE OF CONTENTS Page INTRODUCTION..... 0.0ceetenes 1 ARGUMENT... 2...eteeeens 2 I. BY REFUSING TO GRANT APPELLANT'S MOTION TO CONTINUE THE TRIAL TO ALLOW WITNESSJOE GALINDOTO TESTIFY, THE TRIAL COURT UNREASONABLY RESTRICTED APPELLANT'S ABILITY TO PRESENT HIS DEFENSE IN VIOLATION OF APPELLANT'S SIXTH AMENDMENTRIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AND TO PRESENT A DEFENSE, AND PRECLUDED A FAIR AND REASONABLE TRIAL REQUIRED BY DUE PROCESS AND THE EIGHTH AMENDMENT. ...............0.0005 2 A. Respondent Omits Material Facts About the Motion.. . 2 B. The Refusal to Grant Appellant a Continuance so He Could Present an Exculpatory Witnessat the Guilt Phase Was Federal Constitutional Error Under Chambers v. Mississippi (1973) 410 U.S. 284 and Cudjo v. Ayres (9Cir. 2012) 698 F.3d 752. ........ 8 1. The Trial Court Erred by Declining to Grant Appellant a Continuance, and Then by Refusing to Grant Him a New Guilt Trial on the Tacos el Unico Counts........ 8 2. The Error Was Not Harmless Beyond a Reasonable Doubt. ......... 0.00... c cece eee 13 TABLE OF CONTENTS Page The Trial Court Also AbusedIts Discretion UnderState Law in Refusing Appellant a Continuance to Obtain the Presence of a Material Witness in the Murder of Amarilis Vasquez and The Attempted Murderof Carlos Mendez. ........ 0.0.eee 20 | 1. The State Law Standard. .................... 20 2. Respondent Omitsall of the Proceedings Leading Upto the Request................... 21 3. Respondent Omits Someof the State Law Governing The Good Cause Showingfor a Continuance. ... 6...eee 22 4, Respondent’s Argument... ..............005- 26 (a) The Length of Time Needed to Obtain The Witness's Testimony Was Not Excessive, And The Inconvenience or Prejudice Resulting From that Delay Would Have Been Minimal............. 30 (b) Respondent Concedes, By Not Addressing, Appellant’s Argument Defense Counsel Demonstrated Sufficient Diligence In Locating the Witness and Obtaining His Presence in Court. 2.0...eee 38 ii IL. TABLE OF CONTENTS Page (c) The Anticipated Substance of Galindo's Testimony Was Material and Crucial to Appellant's Defense, and Was Favorable To Appellant. ....................000. 39 (d) |The Denial was an Abuseof Discretion. . 42 D. The Error is Reversible With No Showing of Prejudice... 0...eeeeee ees 44 E. Even if a Showing of Prejudice is Required Here, Appellant's Conviction Must Be Reversed........... 45 THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN APPELLANT'S CONVICTIONS FOR THE MURDER OF AMARILIS VASQUEZ AND THE ATTEMPTED MURDER OF CARLOS MENDEZ. .................0205. 49 A. Respondent Omits Authority Governing the Standard of Review. ......... 0... 0c eee eee es 50 B. The Evidence The Prosecution Presented Was Insufficient To Support Appellant's Convictions For the Murder of Amarilis Vasquez and the Attempted Murder of Carlos Mendez in the Tacos El Unico Shooting. ......... 0.2.0.0... 00000. 52 1. Respondent Omits Mendez's Account Of the Shooting. ........ 0... eee ee eee 53 iil Itt TABLE OF CONTENTS Page (a) Mendez Saw Only aGun............... 53 (b) Mendez’s Descriptions Were Inconsistent. ......... 0.0.0 cee eee eee 5D RespondentIgnores Mostof the Facts | Regarding the Suggestive Identification Procedures. ..... 0.0... ccceee 57 (a) The Evolution of Mendez’s Descriptions. . 58 (b) The Authorities Do Not Support Respondent. ............ 00 ccc ee eee eee 60 RespondentSubstantially Fails to Address Appellant’s Argument Mendez's Identification Of Appellant as the Shooter Is Not Substantial, Credible Evidence. .......... 0.00 e cece eee 63 Respondent Ignores the Fact Other Witnesses With Greater Opportunity to Observe Described A Different Shooter, Anda Different Shooting. .................4. 66 Conclusion. .. 0.0.0... eee ee eee es 66 THE EVIDENCEIS INSUFFICIENT TO SUPPORT APPELLANT'S CONVICTIONS FOR THE MURDER OF PAUL MORELAND AND THE ATTEMPTED MURDER OF ROY FRADUIE. ..... 0...eeeeeences 68 1V TABLE OF CONTENTS Page Respondent Omits Authority Governing the Standard of Review. ........... 00... cece eee ee eee 69 Respondent Omits All of the Relevant Facts Establishing The Deficiency. .................00005 69 1. Respondent Omits Facts Pertinent to the Shooting. . 2.0... 06.eee eee 69 2. Respondent Ignores Fraduie's Evolving Descriptions of the Shooter. ................. 74. 3. The Suggestive Identification Procedures. ..... 76 4. Fraduie's Identification of Appellant as the Shooter Is Not Substantial, Credible Evidence. . 78 5. The Evidence WasInsufficient to Establish That the Murder Weapon WasEverIn Appellant's Possession; Therefore, the Location of the Weapon Coupled With Fraduie's Testimony Identifying Appellant As the Man With the Gunis Insufficient to Support Appellant's Conviction. ............. 80 (a) Facts Relied Upon by the Prosecutor Purportedly Connecting the Murder Weaponto Appellant.................. 80 No Evidence Connected the Gun to Appellant.................. 0.0.02. eee 82 IV. TABLE OF CONTENTS Page 6. On the State of This Record, the Lack of Evidence Requires Reversal.................. 84 APPELLANT ESTABLISHED A PRIMA FACIE CLAIM OF RACIAL DISCRIMINATION DURING VOIR DIRE OF THE GUILT PHASE JURY, ENTITLING HIM TO A REVERSAL.... 0...ees88 A. Respondent Omits Governing Law................. 88 B. Respondent Omits or Distorts Material Facts......... 89 C. Appellant Made a Prima Facie Case that the Prosecutor Was Exercising Peremptory Challenges To Remove Prospective Jurors on the Basis of Group BiaS. . 6...eeeens 92 1. Respondent Concedes The Trial Court Erred in Applying the Wrong Standard For Determining a Prima Facie Case........... 92 2. Appellant Made a Prima Facie Showing of Discriminatory Purpose........... 93 (a) The Presence of Two African- Americans on the Jury That Decided The Guilt Phaseis Irrelevant To this Court’s Inquiry. .......... 0.0 eee eee 93 vi TABLE OF CONTENTS Page (b) Respondent Entirely Fails to Address TheStatistical Analysis Supporting Appellant’s Argument That The Prosecutor Demonstrated Group Bias In Exercising Peremptory Challenges To African-American Venirepersons. ...... 98 (c) When the Prosecutor Has Not Stated His Reasons for Challenging Minority Jurors, An Appellate Court Should Not be Permitted to Affirm The Judgment Based on Speculation Regarding Non-Discriminatory Reasons The Prosecutor Might Have Relied On To Challenge the Jurors............... 103 (d) Respondent Dismisses Appellant’s Comparative Analysis of the Challenged Veniremen and the Seated Jurors Without AddressingIt................ 111 (i) Characteristics of The Challenged Veniremen. ....... 0.0.0.0 e eee 112 (ii) Comparison of Challenged Panelists with Non-African-American Jurors...2eee ee 113 D. This Court Must Reverse Appellant’s Conviction... . 114 Vil VI. TABLE OF CONTENTS Page THE VERSION OF CALJIC NO. 2.92 GIVEN IN THIS CASE VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS, TO MEANINGFULLY PRESENT A DEFENSE, TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AND TO RELIABLE GUILT AND PENALTY VERDICTS, WHERE APPELLANT'S CONVICTION DEPENDED UPON UNCORROBORATEDEYEWITNESS IDENTIFICATIONS. ........ 00.0000 cee ee ees 116 A. The Language on Prior Contacts and Capacity To Makean Identification Were Necessary to the Defense Case and Should Not Have Been Stricken... 116 1. Prior Contacts Language. .................. 116 2. The Incapacity Language. ...............-.. 120 B. The Court’s Error was Prejudicial. ................ 125 THE TRIAL COURT'S FAILURE TO MAINTAIN COURTROOM DECORUM BY CONTROLLING WITNESS MENDEZ'S OUTBURSTS WAS PREJUDICIAL ERROR... 0.0...eceens129 A. RespondentFails to Address the Applicable | Federal Cases Guaranteeing a Criminal Defendantthe Right to A Fair and Impartial Trial and Imposing Upona Trial Judge the Duty to Maintain Proper Decorum and An Appropriate Atmosphere in the Courtroom. ....... 130 vill VIL D. TABLE OF CONTENTS Page Respondent Has Mischaracterized the Issue as Oneof Evidentiary Error, and The Error Arising From the Trial Court’s Violation of its Independent Duty to Maintain Courtroom Decorum is Not Forfeited For Failure to Object. ................... 131 Appellant Was Deprived of His Right to a Fair Trial by Mendez's Outbursts...................... 133 Mendez's Outbursts Were Prejudicial.............. 136 THE PENALTY PHASE JUDGMENT MUSTBE REVERSED BECAUSE THE TRIAL COURT REFUSED TO GIVE A LINGERING DOUBT INSTRUCTION, FAILED TO RESPOND ADEQUATELY TO THE JURY’S QUESTION INDICATING IT HAD A LINGERING DOUBTAS TO THE MULTIPLE MURDER SPECIAL CIRCUMSTANCE, AND BECAUSE THE COURT’S INSTRUCTION IN RESPONSE TO THE JURY’S QUESTION DIRECTED A VERDICT OF DEATH, IN VIOLATION OF STATE LAW AND THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS.. 138 A. B. Respondent Omits Material Facts. ................ 139 The Trial Court Erred In Denying Appellant’s Lingering DoubtInstruction...................... 142 The Trial Court's Instruction to the Jury Following Its Inquiry Deprived Reed of His Right to Have the Jury Consider and Give Full Effect to Its Doubt as to One Count. 0.0...eeeees 152 1x TABLE OF CONTENTS | Page 1. The Court Was Required to Give a Lingering DoubtInstruction Under the Circumstances Of this Case, Because, During Deliberations, The Jurors Requested Instruction on their Doubt as to Whether Appellant Committed One of the Murders............... 00000005 152 (a) The Issue is Not Forfeited............. 152 (b) The Court’s Response Was Inadequate..... 22... 0... ee eee 153 2. The Error WasPrejudicial. ................. 156 The Penalty Phase Judgment Must Be Reversed Because The Court’s Instruction That the Jury Was “Not Here to Determine [Appellant’s] Guilt Or Innocence” And The Court’s Response to The Jury’s Lingering Doubt Question Directed a Verdict of Death, In Violation of State Law and The Fifth, Sixth, Eighth, and Fourteenth Amendments . .... 0...ceeeen eee 157 1. Respondent Ignores Crucial Facts Peculiar To This Case That Render the Judgmentof Death Unfair......... 0.0...ec157 2. The Trial Court Erroneously Directed a Verdict in Favor of Death................... 160 TABLE OF CONTENTS Page (a) DeSantis is Distinguishable From This Case...ccc eee eee 161 (b) Respondent Substantially Fails to Address Appellant’s Argument........ 163 The Trial Court Erred in Failing to Inform the Retrial Penalty Jury that Galindo Had NotTestified Before The Original Jury, Which Found Reed Guilty of Both Murders but Failed to Reach A Penalty, Voting 7-5 In Favor of Life...2.eeeeee 166 1. The Issue is Not Forfeited................... 166 2. RespondentSubstantially Fails to Address Plaintiffs Argument The Exclusion of This Information Violated Due Process. .......... 167 (a) The Fact of the Prior Jury’s Deadlock. . . 167 (b) Respondent Substantially Fails to Address Appellant’s Argument That The Fact Galindo Did NotTestify Before The Guilt Phase Jury and Still Hungonthe Penalty is a Mitigating Factor. 0.0...eeeee 170 xi TABLE OF CONTENTS Page VUI. THE COURT COERCED A VERDICT AT THE PENALTY IX. PHASE RETRIAL WHENIT RECEIVED A VERDICT, DISCOVERED DURING THE POLLING OF THE JURY THAT THE VERDICT WAS NOT UNANIMOUS, AND SENT THE JURORS BACK TO DELIBERATE WITHOUT PROPER INSTRUCTIONS AND ADMONITIONS. ....... 171 A. The Issue is Not Forfeited. ...................000, 171 B. Appellant Has Not Raised Polling Error............ 172 C. The Verdict Was Coerced. ............-.0 0. cee ee, 172 1. Respondent’s Contentions................6.055 172 2. RespondentSubstantially Fails to Address Appellant’s Argument. ............6 6.0 ee ee eee 173 THE TRIAL COURT ERRED BY REFUSING APPELLANT'S PINPOINT INSTRUCTIONS THAT THE LAW DOES NOT HAVE A PREFERENCE FOR THE PUNISHMENT OF DEATH AND THE JURY COULD NOT CONSIDER THE DETERRENT OR NONDETERRENT EFFECT OF THE DEATH PENALTY OR THE MONETARY COSTS TO THE STATE... 2...eee177 | THE PROVISION OF CALJIC 17.41.1 VIOLATED APPELLANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS AND TRIAL BY A FAIR AND IMPARTIAL JURY AND REQUIRES REVERSAL. ........ 177 xu XI. XI. XII. XIV. TABLE OF CONTENTS Page APPELLANT'S RETRIAL AFTER THE ORIGINAL JURY FAILED TO REACH A PENALTY VERDICT VIOLATED HIS FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR JURY TRIAL, RELIABLE PENALTY DETERMINATIONS, FREEDOM FROM CRUEL AND UNUSUAL PUNISHMENT, DUE PROCESS AND EQUAL PROTECTION AS GUARANTEEDBY THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSOF THE UNITED STATES CONSTITUTION ..... 2.0.00. cee eee 179 THE PROVISION OF CALJIC NO.8.85, WHICH INCLUDED INAPPLICABLE FACTORS AND FAILED TO SPECIFY WHICH FACTORS COULDBE MITIGATING ONLY, VIOLATED APPELLANT’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS AND REQUIRES REVERSAL OF THE PENALTY JUDGMENT. .. 0.00.00.eee 180 THE PROVISION OF CALJIC NO.8.88 DEFINING THE NATURE AND SCOPEOF THE JURY’S SENTENCING DECISION, VIOLATED APPELLANT’S RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTSOF THE FEDERAL CONSTITUTION AND REQUIRES REVERSAL OF THE PENALTY JUDGMENT............. 181 THE SPECIAL CIRCUMSTANCE OF MULTIPLE- MURDERFAILS TO NARROW THE CLASS OF PERSONS ELIGIBLE FOR THE DEATH PENALTY AND THUS VIOLATES THE EIGHTH AMENDMENT.. 181 xii TABLE OF CONTENTS Page XV. CALIFORNIA'S CRIMINAL JUSTICE SYSTEM IS TOO UNRELIABLE TO ALLOW THE IRREVOCABLE PENALTY OF DEATH TO BE IMPOSED. ............... 182 XVI. CALIFORNIA'S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT'S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION. .. 0.0.0.0... 00.00.00 0 eeee 183 XVII. THE METHOD OF EXECUTION EMPLOYED IN CALIFORNIA VIOLATES THE FOURTEENTH AMENDMENT'S GUARANTEE OF PROCEDURAL DUE PROCESS AND THE EIGHTH AMENDMENT'S PROHIBITION UPON CRUEL AND UNUSUAL PUNISHMENTS... 2.0.20...eccc eee ee 183 XVIII REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF THE ERRORS............... 184 CONCLUSION...... 0.0.0.ceeeee 185 CERTIFICATE OF WORD COUNT........0......00 0000000008. 186 APPENDIX xiv TABLE OF AUTHORITIES Pages CONSTITUTIONS United States Constitution Fifth Amendment.........ccccccccccescsscessesssscesseeceesesnreenseeass 45, 88, 129 Sixth Amendment............cccccccsccseseeeeseeseees 2, 45, 129-130, 179-180 Eighth Amendment....0.....cceccceceseeeesetseseseeseeseeeeseseseeesees 2, 179-181 Fourteenth Amendment.............. 2, 45, 88, 129-130, 151, 179-181 California Constitution Article I, sections 1, 7, 15, and 17 . ooeeecceececcececsccesscssseceesseceseeses 180 Article I, section 16 ......cccccicecccsccsssscsssceessecceecceceseesseeessuecs 88, 180 Article VI , Section 6.......ccccccsccsccccsscsescceessscccestsecearceetesersstececenss 131 FEDERAL CASES Attridge v. Cencorp (2nd Cir. 1987), 836 F.2d 113 ooo eecccsccessessesseesessesseseeseesesesecseeesecseesserecsesseesseners 176 Batson v. Kentucky (1986), 476 US. 79. eceseccssccesnecessecscesseceeesseseessesssesseeessesssensessserecessseseerenees 88 XV TABLE OF AUTHORITIES Pages Beck v. Alabama (1980), MAT US. 625. ve ecececescsecesenerseseseessesesseseecscaeserscseseseeescseeeesenesseneneessneees 8 Bennett v. Scroggy (6th Cir.1986), 793 F.2d 772 ieecccccccseneseceeeseceesecesesecseseesesseescssssessensseereeeees 24, 44-45 Bollenbach v. United States (1946), 326 U.S. 607. .eececcescecesetseecetesseseeseseesenecaeteceeseseseseeseesessesseseeaeneens 165 Boydev.California (1990), 494 US. 370. oeieeceeececceeeeteneesenereseeteteesesssesesesesscseseesesereesensereneees 149 Bui v. Haley (4th Cir. 2003), B21 F.3d 1304...eeeccceeneeeeereeeeeeseseeerscseescseseseseeesasesseeeeeseeaenes 102 Caldwell v. Mississippi (1985), A72 US. 320. eeeeecescecesesetetensesessseseesesesesecsesesecaesesesteessssesseseeneeeeesieenens 8 Chambersv. Florida (1940), B09 US. 227 . ieececceseeseserenensessseeesesesesecseseseesesensntesenssseseseessensaeees 130 Chambersv. Mississippi (1973), 410 US, 284 oiecececseseecserseeenenssecnenessensenseessenees 8-12, 43, 130 Cudjo v. Ayres (9th Cir. 2012), 698 F.3d 752... eecccceeteeseseresseseeeesesseeecsseseesssesesessesseseseseserseesees 8,12 District of Columbia v. Armes(1882), LOZ U.S. 519. vee ccceececenesseseseeeesceecneeageeeesessessesesseessessseeseessenecsees 123 xvi TABLE OF AUTHORITIES Pages Eddings v. Oklahoma(1982), 455 U.S. 104.cececseeeecseeeteeeesesaeeeseeeeeseceeeceesesseseeeesesssesseeeaees 170 Fetterly v. Paskett (9th Cir. 1993), 997 F.2d 1295 oo. eeecceseeceeseseececeeeececeaceaeeseesseaeeeeeeseseesesaseaeeaeees 151 Foster v. California (1969), B94 U.S. 440 occcceeeseeeeeesseeeecaeceesesesseceaenesseeeeseeessesseeseesteaees 62 Franklin v. Lynaugh (1988), AB87 US. 164 oeeecceenececessceeeeeeescesecsessecseceesseeeeseeessesseteeseeeseens 169 Gardnerv. Barnett (7th Cir. 1999), 175 F.3d 580... ecscesceecesceececesceseesesseeseseceeeneeesesenesseeenesateateaseseeees 44 Governmentof Virgin Islands v. Smith (3d Cir. 1980), 615 F.2d 964.eeeseeeeceeeeeeseescseesceeecseeseeseeeseseeseeeeseesseeseesseneeaees 43 Gregg v. Georgia (1976), 428 U.S. 153 oieececseeeeseeseeeeeseesesseseeseesesceaeereatesesesessesseeneeatens 168 Hewitt v. Helms (1983), 459 US. 460. eecececcsecseceseceecerceecsneeseeesenecnesseeseesseseseeseesseessenees 150 Hicks v. Oklahoma(1980), 447 US. 34S. icc ccceeeeeseeseeseeseecesetseeaeseceeeseeseeenesesenseseeeesecssessessens 150 Hicks v. Wainwright (5th Cir.1981), 633 F.2d 1146...eeeececeseeseeseeeeseesecseceesseeseneessesseesseseesesseessessens 24 Xvil TABLE OF AUTHORITIES Pages Hitchcock v. Dugger (1987), 481 US. 393. ceccccccescescesesceceeesceeeeecerecteeeesscessaeeasenesaeeesesserscsuens 149 Holloway v. Horn (3" Cir. 2004), B55 F.3d 7O7 ...ecceccscseeesescececceeeeeteeecceseeeceecnereteneeeees 96, 105-106, 108 J.E.B. v. Alabamaex rel. T.B. (1994), BLL U.S. 127. cecccccceccecceceeeeeeeeeceeeeneceeeneseeenevaeeeeseseeeeseseeneesseeaeseenes 88 Jackson v. Fogg (2d Cir.1978), 589 F.2d 108. ...cccccccccscescesceeeeeecsecnsecseeseenecneeesseeeeaseeseeneessecesesseeseees 64 Jacksonv. Virginia (1979), 443 US. B07. ceccccccssceseeseeseseeseeeceeeeeteeesetseeseeeaceeaeeaeeseeaeeeeeeneeres 50-51 Johnsonv.California (2005), BA5 U.S. 162 . ..eccccssesecessesseccecceecereseeseesceseeesecaeeeeeaeeaeeseeseeess 105, 114 Johnsonv. Johnson (W.D. Mich.1974), 375 F.SUpp. 872 ...ccccccccccccececececscesesesesessecseeeeeesseeeseseeeeseneees 24, 33 Lancaster v. Adams(6th Cir.2003), B24 F.3d 423 ...ececcccceccecceceeeeeesseeeceseteeeecnecereecserseesesenseneernenseesesseeees 96 Lockett v. Ohio (1978) | 438 U.S. 586 . ..eccccecceseeceeseeeeteeseeeevsceeeereneveteaeesesseaseaeessesneeaeees 168, 170 Maguire v. United States (9th Cir. 1968), 396 F.2d B27 . eeccccccccscescescesceecteesecseeseeeceeesersrssasseseeseseecnaeeaeseessessenens 33 XVIill TABLE OF AUTHORITIES Pages McClain v. Prunty (9th Cir. 2000), 217 F.3d 1209 oooeeccecenceseneeeeeeseseeseeeseeseseeseseeseseneescsesecsesaseesaes 101 Miller-El v. Cockrell (2003), 537 U.S. 322. eeceecescceccesceeceeeseeseseeseseeesecsecseseceasseesesecsesscseensesecans 100 Miller-El v. Dretke (2005), 545 U.S. 231. oe eeeeccceseeecceseeeeseeesseeescessseseeses 89, 104-107, 111, 113 Murphyv.Florida (1975), 421 US. 794. eeecceeceneceeeeceetseecseeecaeeateseseesessecseseetsasseeseesacanens 130 Myersv.Ylst (9th Cir. 1990), B97 F.2d V7 oeeceecececeeeceseeeesesseseseesesaesecseesesseeeeseseseeeseaes 151-152 Paulino v. Castro (9th Cir. 2004), B71 F.3d 1083 ooo eeeceeeseeseseeseeeseeeescseesesessseseeseseeeees 105-106, 108 Penry v. Lynaugh (1989), 492 U.S. 302. .oceeeescessssceseerseeseseecceeseeetesscesseseeseseeseseesseaseaseasenens 170 Powersv. Ohio (1991), 499 US. 400. occ ceeeesecsceseeecsececseneeseeseesseeseeessssessesesessesscsessecseeeees 88 Reeves v. Sanderson Plumbing Products, Inc. (2000), 530 U.S. 1338. ceececesseeteeeeeeeeseceetseeseseeseeseeessessesesssseseeaeees 112-113 Sheppard v. Maxwell (1966), 384 U.S. 3338. ee eeccsccesceceeceeeeeecetsecsesseseseeseesessseseesssesasseesesaeeeeereess 130 xix TABLE OF AUTHORITIES Pages Stubbs v. Gomez (9th Cir. 1999), 189 F.3d 1099 occcecccscesceceeeceeesecseeseeseeseeeceesscesseeeeseeeresaeeeeenesees 101 Sullivan v. Louisiana (1993), 508 U.S. 275. .eececceseeceescssecceecseeseescescecceeceesseeeseeesseeeseneeaeens re 14, 136 Taylorv. Illinois (1988), A84 U.S. 400. oo. ceecesceseesceseeseceseesceececesecseceensesecsessecaeecseenseeneseasenees 9 Trop v. Dulles (1958), B56 US. 86. ceccccsccscesseesceseeeeesecnscnesenesaeseeteaeeaeeeeeeeeeseneeaeseneeneeaes 179 Ungarv. Sarafite (1964), 376 U.S. 575. eeccccescsscescsseseeseneescesessecseseessecsececetseecsenceseeeseeeeeseseeaes 23 United States v. Bailey (1980), AAA US. B94. oeieeceseesesetsesceeceececeseeseesecseeseeecseeseneesesaesaerseeeesaeeaeeaes 12 United States v. Battle (8th Cir.1987), 836 F.2d 1084 oo. ceeesceseseseeseeseeeceeceecececeseeseeeesceesneeaseeeeneeees 95-96 United States v. Brown (D.C.Cir.1972), 461 F.2d 134.0eeecceeeecseeeeeeescecceeenevsesecseesesseeessenseteeseenenateas 64, 79 United States v. Chalan (10th Cir. 1989), 812 F.2d 1302 oo. eeccecsceccccssseceeseneeeeceeceeesecaeeeeeeeseeeeeeeeeeeeeeeeeneereees 102 United States v. Chinchilla (9th Cir. 1989), 874 F.2d 695... cecescecesccsceseecceeesecseeseseceececeeeeecsecaeneeaeesesseeseeaeeneeneess 101 XX TABLE OF AUTHORITIES Pages United States v. Collins (9th Cir. 2009), S51 F.3d 914eeeescneeseecesecsetensesecseeseeseeecsecsessseesssecsenssseneeees 89 United States v. Flynt (9th Cir.1985), 756 F.2d 1352.oeecceeseseeseeeeeeseteeeeeeeeeseesessesecseeseseessesessserestesss 24, 37 United States v. Flynt (9" Cir. 1985), 704 F.2d 675. oo cececescsessceccseceeseeseeesesseesseeeeseseesessesesessescseessseeatesseseses 24 United States v. Gallo (6th Cir. 1985), 703 F.2d 1504.eeeeeeecscecceeeseeeeseeseeseseeseesecesecseesseeesecatereseesseees 44-45 United States v. Ginsberg (2nd Cir. 1985), 758 F.2d 823. oc eeesccsceseeceseeeesesseseseseeseseseseesscsscsessesesseesacescsesaseneeevas 41 United States v. (James Lamont) Johnson (8th Cir. 1989), 873 F.2d 1137... cceescsseeereseeseeeeecseeeenecaeeseesesecseseeecseeassceateresess 102 United States v. Mason (9th Cir. 1981), 658 F.2d 1263...esc ecceceesenceseeecsecsenseseesessseseeecesesseseeseesssscseessesseess 174 United States v. Murphy (6th Cir. 1969), ATS F.2d 1129.ceecceeesseseteessesseseeseeseesececsesesceessssscsesseesesnsas 33 United States v. Powell (9th Cir.1978), 587 F.2d 443 iecsceceseeeseeeeseseceeseseesessesecsecsessesesesseeecsesessecseeeeees 24 United States v. Scheffer (1998), 523 U.S. 308. ieeeessesscescteeseesceecseceeeessesesseeeseeseesesscseesecsesesssessecaees 11 XX1 TABLE OF AUTHORITIES Pages United States v. Smith (9th Cir. 1977), 563 F.2d 1361.eeeeseeneeneeeeceseeesessseseesssssessssessseesesseeeseeses 51, 64 United States. v. Valenzuela-Bernal (1982), 458 ULS. 858 «oe eeccceceeceecereeseeeecneteeceseraressesceaesassasesseneesaeeeseens 39-41 United States v. Wade (1967), 388 U.S. 218. oo eecccccccecceeeseeeceecececteeeeseeseceeceeeeseeeeseenes 58, 63-64, 78 United States v. Young (1985), A7O US. Le ceeecceecceeceeseeceesceseesecaeeseeseeecenesaecaeescsaeeneeneeneceseeseeessetageas 130 Washington v. Texas (1967), 388 U.S. 14, 87 S.Ct. 1920. eeeeceneeee ene ceeeeseeeesesseneenenees 9-10, 13 White v. Ragen (1945), B24. U.S. 760 . ec eececcsscesecsesseetecneeeecesecseeeeesessasssesscnsenseesesseseenecaseneens 23 Williams v. Runnells (9th Cir. 2006), AB2 F.3d 1102.0... eeeecceceeeeeseeeeneenseesecrecsscseacsessassseseseanerseeeseees 100 Woodsonv. North Carolina (1976), A28 U.S. 280. oo .eececcceceeeceseeseceeceeeeseeseceeceaesseeseeseseceseaeseessaeesetarenes 67 Yates v. Evatt (1991), 500 U.S. B91 oe eeeceeceeeceeceseeeeeeceeseceeseneeaeesecnecneeeaeeaeeseseeeeaeeeaee 14, 136 XXII TABLE OF AUTHORITIES Pages STATE CASES Allen v. Downing(1840), BTL. 454.cece cece cecsesesesesesesesesssesescesesscecsescevenssseneacaeesaesees 34, 39 In re Anthony M.(2007), 156 Cal.App.4th 1010...cececescsseecscseecsesensasneieeeseeeeaeeees 21 California School Employees Association v. Santee School District (1982), 129 Cal.App.3d 785 ...ccccccececessssceeseeeecerecseseseseersnssieseneneaeeeeeeaeeens 76 Catchpole v. Brannon (1995), 36 Cal.App.4th 237 .o.ccccccecesessseseecsesesesesesssesesscnesssenseeeeeeeees 132 Childs v. State (1927), 146 Miss. 794, 112 S0. 23 oooeeceseenecseeersseeneneeeeeeseeteeeseeseees 43 City of Sacramento v. Drew (1989), 207 Cal.App.3d 1287. ..c.ccccceccccecsssescecsescsenetenssessassnseseeneesserseeeeeeas 21 Com. v. Lahoud (1985), 339 Pa.Super. 59, 488 A.2d 307 .o.ccceccceeccccsesesesesescseeseeeseeeeeees 41 Farrell L. v. Superior Court (1988), 203 Cal.App.3d 521.ccccccecessesssccesessecseneneneseeesseerseetaeeasenees 124 Fuselier v State (Miss. 1985), 468 SO.2d 45. eeccccecccsscccscecssssecessesecesesssssecstssessesseeeseeeecnseess 134-135 Xxili TABLE OF AUTHORITIES Pages Glenn v. State (1949), 205 Ga. 32, 52 S.E.2d 319. occcccceccceceeseeeeeeeeeseneeecsaesseeeneseeesaens 135 Hernandez v. Paicius (2003), 109 Cal.App.4th 452.00.ccceceeececessescseeesseseneneneeseeenenes 132 Hurtadov. Statewide Home Loan Co.(1985), 167 Cal.App.3d 1019... cececcccsescceceesceteereteresesesseasseseenereseeeees 21 Jennings v. Superior Court (1967), 66 Call.2d 867. .....ccccccceseesescereeereneeeseenseeeeeeneees 22-23, 25-26, 39-40 Loicano v. Maryland Casualty Insurance Co.(1974), B01 SO.2d 897. ...cccccecccesceseeesesesecseeeeneceaeceaeesseventeaeseeeesaeseasensaees 34, 38 People v. Anderson (2001), 25 Cal.4th 543... ccccsccsecsssssecssecseecsceesaeescecseesseeseceeeeeeeeseeeeeesneess 123 People v. Arias (1996), 13 Cal.4th 92... ccccccccsecsecssececeeseeceaeesnessneessecseeeaesseeeeaseeseees 51, 149 People v. Avila (2006), 38 Cal.4th 491... ccccceccccesenecesesereeseceeeesecseesaeeeeseeees 92, 94-95, 143 People v. Barnes (1986), A2 Cal.3d 284. .occecccccccsceesceceececeeceeeeeresseceeceaeeaeesesseeaeeneeeerensasees 52-53 People v. Beames(2007), AO Cal.4th 907... ccccscccseescescescesseeneeereceeeeeecaceseeseeseeseeeaeeresaeensoseass 25 XXIV TABLE OF AUTHORITIES Pages People v. Beeler (1995), 9 CalAth 953.ceeecceceneeseseeecsesstecseneeeesesesseseseeessecsssesseeetsneeeses 20 People v. Bell (2007), 40 Cal4th 582.cececeseseeeceseeeseeseseeseseesesecessesesseessesaesees 92-93 People v. Bittaker (1989), A8 Cal.3d 1046. oo. cecceesescteeseteeseseesesessessesesessesesecsesecsesseseeseeeseess 9 People v. Blakeslee (1969), 2 Cal.App.3d 831. occceccseseeseseseseceeeeseeecsesessseseseeseseseecseeesseneees 84 People v. Bonilla (2008), A] Cal.4th 313.oecceceesceseessecseceecseseeseesesessesesecsesacsesessseeseeceees 92 People v. Bouzas (1991), 53 Cal.3d 467 oo cccecsssesescesesesescseseeseseseecessssseecensesesscsesesesseseeeees 76 People v. Boyer (2006), 38 Cal.4th at pp. 487-488.occeseeeseeeeceeeeeeeesteteteneeeees 143 People v. Buckey (1972), 23 Cal.App.3d 740 oo. ccccccesseesecesseseneeteesessssesssseessessssecssersseeenss 23 People v. Burney (2009), A7 CalAth 2038... ececccceseceseeeseeseceesssetseteeseeseesscsesessesesseeeees 116-117 People v. Carasi (2008), AA CalAth 1263. ccceccscsseseseeseseeesesseseeseseeecsesecseecssessesecseses 110 XXV TABLE OF AUTHORITIES Pages People v. Coffman (2004), 34 Cal.4th Dooceesses secseseseeseesssscaeseesesesesereeesseseeeeaness 181 People v. Collins (1925), 195 Cal. 325 oieececcesseseecsceeeseeseecsesecsesesssseneesserecseseneeeeeeens 34, 38 People v. Cox (1991), 53 Cal.3d 618. oeccccccsceses sees ceseseceeseserseeneeeeeeeeeees 143-144, 148 People v. Crovedi (1966), 65 Cal.2d 199. eececcseseescesessensessscscesssesseessesesssnecseaseeseewessenees 168 People v. Davis (2009), A6 Cal4th 539... ieccccesscessccsescseseseesessssesessescseseseeeesesenesseeeneeneens 102 People v. DeSantis (1992), 2 Cal.4th 1198...sesesssesscssesescaesensessseaeeeseeneees 147, 157 People v. Diaz (1992), 3 Cal.4th 495...cscssees sscsesessesessssssssseesseseseeeseseneeeenees 52-53 People v. Engelman (2002), 28 Cal4th 436...cccsecceseeeseneeesseeeeseeeseeteceeesasesscasersessessensnseses 178 People v. Flood (1998), 18 Cal4th 470... ceeeeseneeeeseecseresseeesecsesesseseesseeeeeseeessoney 14, 136 People v. Fontana (1982), 139 Cal.App.3d 326.oo.renecsentescsseneessssseneenereneesenty 42-44 Xxvl TABLE OF AUTHORITIES Pages People v. Froehlig (1991), 1 CalApp.4th 260. 0... cecceeccceseeseeseseeeeseesesesesseseseseesecessseseesesees 20 People v. Fuentes (1991), 54 Cal.3d 707... ecesccseescsseccessseeecsesceceessseeeeseieesesesseseseeesecsecssesseass 114 People v. Gainer (1977), 19 Cal3d 835. oc ceccccecssseserecceseeecseeteeeecseeseeeesesesseeeseeeeseeseesssaeaess 172 People v. Gay (2008), 42 Cal.4th 1195.eeececseeseseceecneeeeseeeeceeteeeseeeeees 163-165, 169-170 People v. Glass (1975), 4A CalApp.3d 772 .oeicicceccssccsscnseecsecseeteceeeeeseneeseesessesessesseeseesees 82 People v. Gonzalez (2006), 38 Cal4th 932... eccsesceseeseecceesseeeeeseesesseeeeseeeeseeeseeesesseseseesees 60-61 People v. Gonzalez (1990), 51 Cal.3d 1179. ieeesceescteceeceecceeeeeeeseeecseseeseseessseeseeeseeseeseess 147 People v. Gray (2005), 37 Cal4th 168... ccceecessecceesseseeeeeneeeseseeeseseseseseeecseesesacessenss 143 People v. Gregory (1989), 184 TILApp.3d 676 «eececescecsccseeeeeeeseeeesesestseseseesseecseeseeseestesees 175 Peoplev. Griffin (2004), 33 Cal4th 536... eecsceeccsseeereceseeseeecseesesecsesssenseseseeseseesesessseseees 89 Xxvil TABLE OF AUTHORITIES Pages People v. Guerra (2006), B7 Cal.4th 1067. ....ccccecccccescscsesseeeceecesceaceseeeceeesseeseeseeaesaeesseeeneeees 104 People v. Hall (1983), B35 Cal.3d 161... ccceccccecccscescceseeseesceneceeeecerecsesseeeaceseeaeeeseeesseeseeens 115 People v. Harris (2005), 37 Cal.4th 310... ccececccscessceceeseeseeeeceeeeceeeeesesseeseeeseeseseeeneesseeseeens 143 People v. Harris (2013), 57 Cal4th 804.0... ccccceeccesecscenecesceceesesseeeeeneceaeeseeseseseeees 106, 110, 112 People v. Hawkins (1995), 10 Cal.4th 920... ccccecceccescsseeseecceeeeeeeceneeneeseeceeaesaeeeesaeesasersesaees 167 People v. Hill (1992), 3 Cal4th 959.ccc ccccccscescessesccssesecesceaeeseceecsseesecseceeeaceeseaessseeeeeneenes 1 People v. Howard(1992), 1 Cal.4th 1132...eecsceeeseeceesereeeneeeesens 20, 31, 97-98, 104, 112 People v. Huggins (2006), 38 Cal4th 491.ci ccccccesecseeseeceecesseceeeeseesecseeeaeserseeseeaes 92,94, 143 People v. Iocca (1974), 37 Cal.App.3d at 73. ...ccccccccccsesecseeneteeeeieeecnessenenscieneseeteceneeees 44 People v. Jacobs (2007), 156 CalApp.4th 728.0... ceeseseesesesesesserenesssssseneeessesseneees 21 XXVIll TABLE OF AUTHORITIES Pages People v. Johnson (1980), 26 Cal.3d 557. .oceccccssescsesseeesseeseseeecseesesesseseeeesenecsecseasscsesevscssesceas 50 People v. Johnson (1992), 3 Cal4th 1183... cceccccessessesesseecseeecseeseseesesecseseeesesassecsesesecsssces 169 People v. Jones (1998), T7 Cal.4th 279.icccccescnecsessesseeeseeseeeseseeeseesesecssescseescseeseesseasees 20 People v. Kaurish (1990), 52 Cal.3d 648 ooo cccsscecnessesenecsenseesesesensesessesecseesseseesseeneeses 144 People v. Keenan (1988), 46 Cal.3d 478. occ ccccecscsescseesesesesseseneceeseeseensesenessesessecseseaestesescnees 174 People v. Land (1994), 30 CalApp.4th 220...esesessesesesesereceseeeeenereesssesessseseseassesees 82 People v. Laursen (1972), 8 Cal.3d 192 oceccececeseeseeseeessesenseseeseeesessscsesesssesseecsessseessees 25-26 People v. Lewis (2001), 26 CalAth 334... ceeccecneesseseseceeseeeeseesesesesseseeseeessesseesscssees 52, 123 People v. Lewis (2008), AB Cal.4th 415.ceeeceececsceseeeeseeseseeecsessesesecsecesseeaeatsesesscssssevscses 94 People v. Maddox (1967), 67 Cal.2d 647. oo ieecescsceesseeseesesesseseecssesesssecsesecsecsssacsesecscssecesssens 22 Xx1x TABLE OF AUTHORITIES Pages People v. Martinez (1987), 191 CalApp.3d 1372. ...ccccccccccecsecetetesesenenesesseneeeseeneneees 118 People v. Mason (2013), 218 Cal.App.4th 818.ccccceccceecceteceeeneneseesseneeeenenenecens 178 | People v. McCaughan(1957), AQ Cal.2d 409. eee cececeeccseceeeeseeseeeeeescnseneeneseeeseseeeesesaseeesenes 123-124 People v. Morris (1991), 53 Cal.3d 152. ..ccccccesccseseeceeecececeeeeneesesseeseesesecesseensenenseeesseesesaess 149 People v. Mosher (1969), 1 Cal3d 379 . eeccceceeceeceeceescesceceesceeeeceseneserssecsscesesseesessserssssesssesereees 50 People v. Panah (2005), B5 Cal.Ath 395... ceccceecccsccseeeeceeeceeeseeecessnaveecesessessesseceeseeessessesnees 143 People v. Proctor (1994), A CalAth 499... ccceeccccececsecseeceesenecaeeccseesesesceasesersecsesssseseeseeeesaees 174 People v. Samayoa(1997), 15 Cal.Ath 795... ccsccecccceceeeeeeeeeesesesseceeesrsnsasaeensessscsenesseaseeeas 184 People v. Samuels (2005), 36 Cal.Ath 96... cceccesecceceeseeceeseeecseseeeeceeesecnecaeesaseseesesseressensersseeees 124 People v. Sanders (1990), 51 Cal.3d 471. oecccccceccccccencecceeececeneceeceeesaecneeeneceaeeseessseaseasenees 97,112 XXX TABLE OF AUTHORITIES Pages People v. Singh (1937), 19 Cal.App.2d 128 oo.ciccccccecetesseeeeseeeseneeseseesesecsesseseseeesssseeesaes 124 People v. Slocum (1975), 52 Cal.App.3d 867 «cececccsescseeseseecseseereneeseseseeneteseeteneneeeaes 131 People v. Smithey (1999), 20 Cal4th 936... eccceceececeeeeessseseensesecseeeseesessessseesesesseeeseesees 153 People v. Snow (1987), AA Cal.3d 216. eceeccccceeccesesssesesseseesenscsesseseseesacsessecseeeesessesesseseceses 115 People v. St. Andrew (1980), 101 Cal.App.3d 450. ccccccceseeseseeseseeesescesseseesessesssesesesseeesees 123 People v. Taylor (2010), A8 Cal4th 574.ccccsccccecescesesseseseneeseseseseesesecseseeseeessseesesscseeees 113 People v. Terry (1964), 61 Cal.2d 137. oe cecceecececeeseeseeeessesesecsesesesseseseeessssesecnees 151, 169 People v. Thompson (1988), A5 Cal3d 86 ooo eeccccecceceeeeeeceeesecsseseesesenseseesesenseeseeseenes 144, 149, 151 People v. Trevino (1985), 39 Cal.3d 667. .ccceececcsccssesccesseeessesessesesssseessecaeeseeaeeasssssessssesscsecese 86 People v. Valdez (2004), 32 CalAth 73.00. ecccceseesceeceseeseeeseeseeceseeseseesecaseasseesessesecscseseeeess 143 XXX1 TABLE OF AUTHORITIES Pages People v. Valdez (2012), 55 Cal4th 82... ccceseeccsceecneeseseeecsseessessssseessseesseseseesessesecaseessees 174 People v. Vu (2006), 143 Cal.App.4th 1009.eeeeeeeeetecserenenereeeesseseseeeeeeeaes 86 People v. Ward (2005), 36 Cal4th 186...ccececcssceeseccesececseeeseeevseneeeeseseeseneeeseeeenaes 143-144 People v. Watson (1956), 46 Cal.2d at P. 836 «occccsceseeesereneeesessescsenenesecserereeeeees 127 People v. Wattier (1996), 51 CalApp.4th 948...eeeseee ee eeceenererseneneeseneneenenenes 174-175 People v. Wheeler (1978), 22 Cal.3d 258... 88-89, 91, 95, 96-99, 101-103, 110-112, 114 People v. Williams (2006), AO Cal4th 287. 00.cceceee cece recesses tess reeeceeeneeesesnenieaseenenes 92, 113 People v. Wright (1990), 52 Cal.3d 367... cceeeescseseescseesesseeesesseeeeeseesssessensesseessenetessenneeess 172 People v. Wright (1988), A5 Cal3d 1126. oo eeiecceeceseesessesesersceeeseeeeesceceseenesseneeseneeaes 117-118 People v. Zapien (1993), A CalAth 929... ceccessceesseseeseseesesscseecsenseseessesessesaesesasseeseneeessseees 44 XXX TABLE OF AUTHORITIES Pages Perez v. Grajales (2008), 169 Cal.App.4th 580 oieeeeeeeeseceseeeeseteeeeneeseseeeeeseeseseenes 155 Price v. State (1979), 149 Ga.App. 397 . .eccccceceecsesessesesseecscscsscecsscsceesesseseaeeersesererenes 135 Rodriguez v. State (Fla.App. 1983), 433 SO.2d 1273. eeccecscecsseeceseeeeceeeeeecseteeeeeeeaeeeeseeeasseseseeees 133-134 Saville v. Sierra College (2006), 133 Cal.App.4th 857 ooo. cccseessescseeesseeseseseetensssenetsesesesseeseees 155 State v. Garza (1985), 109 Idaho 40, 704 P.2d 944. oecccceeeeeeesenseeesetecseeesseesateaeeaes 4] State v. Gevrez (1944), 61 Ariz. 296, 148 P.2d 829...ccceceeeeceeteeeesseteeseesesseseeseenees 135 State v. Stewart (1982), 278 S.C. 296, 295 S.E.2d0 627. oiecccccseeeseeteeteeeeteeeeseeseeetesseeseaees 135 Walkerv. State (1974), 32 Ga.App. 476, 208 S.E.2d 350 oceeeenceseceeseeteesetteeeeeesees 135 XXXili TABLE OF AUTHORITIES Pages STATE STATUTES California Evidence Code SECHION 701 oie eeeeeeceesseceesteeeeseeeeesceeceeeeeeeecesaeesssaneetenaeerseesarenaes 53 SOCOM 702. .essesessesesssseesesssesecneecssvecsrereesnseeesneeesnneesneeeeneeenesleeeeeeee 123 SCCHION 780. ...cececeecesecceseteceteeseseneceseteeeecesnaeecessnecersensceeeseeseesaaeeoes 124 Penal Code SECTION 190.3. oo... eeeceeseessseessececeseteeseeecessecersaeeeesecessnacecessaeeeesesneeseas 170 SCCHON 1044 occeeccccessesnsesseeesesesecseeeseeseeeaeeeeensecseecseeceneetsetentens 133 MISCELLANEOUS CALJIC No. 1.02. cece ceccccccsscsseneesescecseceseeecesecsneceeeaeceeeeenecsnesetessaeenetees 164 CALJIC No. 2.92.cece eeeeceeeeeneeseees 42, 116-118, 120-121, 125, 128-129 CALJIC No. 8.85. .oceceeccceccesseseesecesseceneenseeaeceseesseeseesaecesseessnesseesesnessaeenss 180 CALJIC No.8.88. oc eeecccccsseesecsscenceceseesecenerseeesneesecsessecsneesaaeesaeseneeenseeaes 181 CALJIC No. 12.44. eeeccccccccsccssecseceseeeeeeeeeatceaeeeceerecseesanecsaeseaeeesaeeseeeneed 83 CALJIC T7.4L coe ccccccecccecceseeseeecesceseeeeeseeecaeeenetaessneesnessnneeanesers 176-179 XXX1V TABLE OF AUTHORITIES Pages Bradfield, Amy L., Wells, Gary L. & Olsen, Elizabeth L., The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. Applied Psychol. 112.0ceeceeeseeeeeseeseeeneens 127 Penrod & Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 Psychol. Pub. Pol'y & L. 817 (1995)......... 127-128 Sporer, Siegfried Ludwig, Eyewitness Identification Accuracy, Confidence, and Decision Times in Simultaneous and Sequential Lineups, 78 J. Applied Psychol. 22........ccc eeseseceeseseeseseeescneneseneneeneestenetseeeaes 127 Wall, Eye-WitnessIdentification in Criminal Cases 74—77, (1965).eee eceeeseecessesecsneeeseeseeessseseesseesseseseesseeseateesseeceaesesssessssuesssecsesersaees 62 Wells, Gary L., & Bradfield, AmyL., “Good, You Identified the Suspect”: Feedback to Eyewitness Distorts Their Reports of the Witnessing Experience, 83 J. Applied Psychol. 360 (1998)... ecceeeesessesesesesesesesesesessssececaeneneneaeneaeenseesseeeeeaes 127 Wells, Gary L., How Adequate Is HumanIntuition for Judging Eyewitness Testimony, in Eyewitness Testimony, Psychological Perspectives, 256, (Gary L. Wells, Elizabeth Loftus, eds., 1984)..... 128 Westen, Compulsory Process II, 74 Mich.L.Rev. 191... 33 XXXV INTRODUCTION Defendant and appellant Ennis Reed herebyreplies to certain points made by respondent. Appellant believes that a further discussion of these points will be helpful to the Court in deciding the issues presented. Appellant's failure to discuss any particular point means only that he has concluded that no further discussion is necessary and should not be misconstrued as an abandonment, waiver, or concession.(People v. Hill (1992) 3 Cal. 4th 959, 995, footnote 3) Because respondentextensively failed to address importantfacts of the case, appellant has attached an Appendix to alert the court to specific areas and facts which respondent has omitted or distorted in its brief. Many of these omissions and distortions will also be addressed in the bodyofthis brief. ARGUMENT I. BY REFUSING TO GRANT APPELLANT'S MOTION TO CONTINUE THE TRIAL TO ALLOW WITNESS JOE GALINDO TO TESTIFY, THE TRIAL COURT UNREASONABLY RESTRICTED APPELLANT'S ABILITY TO PRESENT HIS DEFENSE IN VIOLATION OF APPELLANT'S SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AND TO PRESENT A DEFENSE, AND PRECLUDEDAFAIR AND REASONABLE TRIAL REQUIRED BY DUE PROCESS AND THE EIGHTH AMENDMENT Respondentdisagreesthe trial court violated appellant’s federal constitutional rights under the Sixth, Eighth and Fourteenth Amendments whenthe court refused to grant his motion to continue the guilt phasetrial to permit witness Joe Galindoto testify. (RB 20-27.) Respondentis wrong. A. Respondent Omits Material Facts About the Motion Respondent omits the following material facts about appellant's motion to continue the guilt phasetrial. Joe Galindo was a memberof the National Guard. Because Galindo was suddenly either deployed or moved to a location outside of California for training, it was impossible for the defense to serve Galindo personally. Even so,trial counsel caused a subpoenato be properly issued and sub-served, and continued in his attempts to obtain Galindo's presence. (20CT 5650.) Shortly before trial, a National Guard colonel advised the defense investigator he believed Galindo would be madeavailable to come to court as a witness. (20CT 5650.) The trial court made no inquiry regarding the estimated length of Galindo's deployment, noras to any possible arrangements to secure his testimony without significantly delaying thetrial. The case proceededto trial without Galindo's testimony that a muchtaller and heavier man than appellant shot Mendez and Vasquez. His testimony would have corroborated the other defense eyewitness — Slaughter — who witnessed the shooting, saw only one man,andalso described a significantly taller, heavier man than appellant. Without Galindo's testimony, the prosecutor obtained a conviction on those counts. However, even without Galindo's testimony, that jury was unableto reach a verdict as to penalty, with the jury split 7 to 5 in favor of life without possibility of parole. (4RT 795-796.) Galindo returnedin time totestify at the retrial of the penalty phase. (10CT 2845-2846; 6RT 1126-1132.) Galindotestified he had just left Tacos el Unico and returned to the front porch of his girlfriend's house downthe street when he heard gunshots and saw a muzzle flash. (6RT 1127-1129.) Galindo looked back at the taco stand and saw a lone black man with his right arm up. (6RT 1128-1129, 1132-1134.) The shooter — a "stocky" man wearing dark pants, a checkered shirt worn outside his belt, and a black baseball cap — ran past him at a distance of about 53 feet. (6RT 1129-1130, 1132-1137.) Galindo — who is 6'1" tall and weighs 204 pounds — observed appellant in court and stated appellant is smaller than the man he saw, and was not the shooter at Tacos el Unico. (6RT 1130-1131.) The shooter wasatleast as tall as Galindo,or taller. (6RT 1132.) Respondent omits the critical fact that, following Galindo’s testimonyat the penalty phaseretrial, the deliberating jury inquired as to whetherit could consider its doubt that appellant was guilty of one of the murders (10CT 2887), but the court refusedto instruct the jury on lingering doubt. (6RT 1241-1244, 1319-1320.)' The jury returned a ‘This is error is addressed in Appellant’s Argument VII, infra. 4 verdict of death. Appellant’s motion for newtrial, based on the denial of the continuance, wasalso denied. (20CT 5643-5650; 6RT 1335-1336.) The motionallegedthat the trial court violated appellant's rightto a fair trial and due process whenit denied him a continuance in order to present witness Joe Galindo's testimonyat trial. (20CT 5644.) Respondentomitsall of the details regarding appellant’s motion for new trial. (6RT 1334-1336.) Respondent omits Schmocker’s argument: Yes, I have a commentin regards to Mr. Knowles’ brief. Mr. Knowles points out that at the second penalty phasethe jury did hearthe testimony of Mr. Galindo and apparently foundthatit did not raise a residual doubt or lingering doubt in their mind. This puts us, though, in a — I think in a bit of a difficult position. The Supreme Court, having ruled on this issue of whether or not they should be instructed in regards to lingering doubt, has dictated basically that the trial courts not do so, although in this case it appears to me that it would have been appropriate to define it for them for the purpose of considering Mr. Galindo's testimony. Secondly, the problem that occursin retrial — and I think it's probably endemic to a retrial of a penalty phase —is the situation the jury is put in where, having not heard all of the evidence in regardsto the guilt phase, they are put in a difficult position of determining what a residual or a lingering doubt is or what it could possibly have been. I'd ask the court to consider — seriously consider giving the defendant a new trial in regards to the guilt phase on this one — on these two counts. (6RT 1334-1335.) Respondent omits the trial court’s ruling: The court finds at this time that there was insufficient evidence that the jury would have a reasonable doubt, and I base that on the totality of all the other evidence, that this defendant was the person who shot both Mr. Mendez and Miss Vasquez. The testimony from Mr. Galindo was at variance with the witness statements that he had given to the police. It was a situation wherehe only described a male black, six-foot-two, 190 to 200 pounds, wearing a blue or black cap, with something black in his hand running by his house. This was sometimeafter the shots were heard. His testimony wasthat it was dark; it was some 53 feet away, that he did not see the man’sface. He did, however, pick out someonein a six-pack as photo number5, and hesaid, "I picked him out based on the size of the person," but there was nothing to indicate that he had seen the person's face or anything further. The conflicts were then that he evidently told the police that he saw two people, and he described the clothing of one as a checkeredshirt and the other as a long black coat. That is not the testimony that he gave at the 6 time of his appearance herein this court. The court finds that the defendant's right to a fair trial was not denied. And the motion for a new trial is denied. (6RT 1335-1336.) Respondentalso omits the court's failure to consider the second penalty phase jury's question: "If the jury agrees that 1 of the cases presented warrants the death penalty, however one of the cases contains some doubt, accordingto the instructions, is this sufficient for awarding[sic] death?” (10CT 2887.) The courtalso failed to consider his answer to that question: “I have met with the lawyers, and the answer as best we can give you is as follows: {J Thatall things considered in this case, in the context of your question, the jurystill may choose which of the two penalties is appropriate in this case. J The answer is yes. (6RT 1319-1320 [emphasis added].) B. The Refusal to Grant Appellant a Continuance so He Could Present an Exculpatory Witnessat the Guilt Phase Was Federal Constitutional Error Under Chambers v. Mississippi (1973) 410 U.S. 284 and Cudjo v. Ayres (9"™ Cir. 2012) 698 F.3d 752 1. The Trial Court Erred by Declining to Grant Appellant a Continuance, and Then by Refusing to Grant Him a New Guilt Trial on the Tacos el Unico Counts This is a capital case, which requires heightened due process reliability. (Caldwell v. Mississippi (1985) 472 U.S. 320, 340, 105 S.Ct. 2633, 2645, 86 L.Ed.2d 231; Beck v. Alabama (1980) 447 U.S. 625, 637-638, 100 S.Ct. 2382, 65 L.Ed.2d 392.) Accordingly, this Court should not be so rigid as to limit review to the circumstanceshistrial counsel argued during his motion, especially since the trial court was already awareof the history of the case at the time it denied the continuance. Appellant contends the trial court unreasonably denied his request for a continuance — and his motion for newtrial based onthat denial — under circumstances that amounted to exclusion at the guilt phaseof the material exculpatory testimony of Joe Galindo regarding the misidentification of appellant as the shooter in the Tacos el Unico incident. The trial court’s refusal to grant the continuance so the defense could obtain Galindo’s presence at the guilt phase, and subsequentrefusal to grant a newtrial on the Tacos el Unico counts wascontrary to established United States Supreme Court precedentat that time: specifically Chambers v. Mississippi, supra, 410 U.S. 284. Respondent disagrees the effective exclusion of Galindo’s testimonyat the guilt phase amountsto federal constitutional error (RB 20), but does not address appellant’s argumentin this regard. Instead, respondentattacks appellant’s claim as simplestate law error, inviting this Court to apply the more lenient state law harmless erroranalysis. (RB 22-27.) This Court must, however, consider appellant’s federal constitutional right to present a defense. The Sixth Amendment and the Due Process Clause of the Fourteenth Amendmentclearly guarantee a criminal defendant the right to present a defense whichincludestheright to present witnesses favorable to the defense. (Taylorv. Illinois (1988) 484 U.S. 400, 408, 108 S.Ct. 646, 652, 98 L.Ed.2d 798; Washington v. Texas (1967) 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1976); Chambers, supra, 410 U.S.at 302, 93 S.Ct. at 1049.) In Washington v. Texas, the Court stated: The right to offer the testimony of witnesses, and to compeltheir attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide wherethetruthlies. Just as an accused has the right to confront the prosecution's witnesses for the purposeof challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental elementof due process of law. (388 U.S. at 19, 87 S.Ct. at 1923 [emphasis added].) Similarly, in Chambers, the Court stated “the rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process.” Chambers, supra, 410 U.S. at 295-296, 93 S.Ct. at 1046. The Chambers Court emphasized that the denial or “significant diminution”of these rights “calls into question the ultimate integrity of the fact finding process and requires that the competing interest be closely examined.”Ibid. Although “[t]he right to present witnesses is of critical importance... it is not absolute. In appropriate cases, the right must yield to other legitimate interests in the criminal trial process.” 10 (Chambers, supra, 410 U.S.at 295, 93 S.Ct. at p. 1046.) Specifically, “[i]n the exercise of this right, the accused,as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness andreliability in the ascertainment of guilt and innocence.” Id. at 302, 93 S.Ct. at 1049. However, these procedural and evidentiary rules of exclusion “may not be applied mechanistically to defeat the ends ofjustice.” Ibid. “Such rules do not abridge an accused's right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionateto the purposesthey are designedto serve.’ ” (United States v. Scheffer (1998) 523 U.S. 303, 118 S.Ct. 1261, 1264, 140 L.Ed.2d 413 [quoting Rock v. Arkansas (1987) 483 U.S. 44, 56, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37].) Thefacts of this case must be considered carefully to determine whetherthe constitutional right to present a defense has been violated by the exclusion of evidence. Generally, the analysis should consider whether: (1) the excluded evidenceis critical to the defense; (2) the evidence bears sufficient indicia of reliability; and (3) the interest supporting exclusion of the evidence is substantially important. (See 11 Chambers, supra, 410 U.S. at 298-301, 93 S.Ct. at 1047-1049.) In ruling on appellant’s motion for newtrial, the trial court determined Galindo’s testimony would not have substantially bolstered appellant’s defense theory that he was not the Tacos el Unico shooter because Galindo’s statements to the police conflicted with his testimonyat the second penalty phasetrial and Galindo did not see the shooter’s face. (6RT 1335-1336.) This was error because Galindo's testimony had substantial probative value, raised the requisite reasonable doubt regarding a “highly material” issue in the case — the identity of the shooter — and was highly necessary because appellant was convicted based on uncorroborated, unreliable and highly manipulated eyewitness identification. (See Cudjo v. Ayres, supra, 698 F.3d 752, 762-763.) Thetrial court’s ruling on the motion for newtrial waserror in part because it was the jury’s province to resolve the conflicts in Galindo’s prior statements and to determine whether Galindo’s testimony wascredible. United States Supreme Court precedent makes clear that questionsof credibility are for the jury to decide. (See United 12 States v. Bailey (1980) 444 U.S. 394, 414, 100 S.Ct. 624, 62 L.Ed.2d 575 [“The Anglo-Saxontradition ofcriminaljustice embodiedinthe United States Constitution ... makes jurors the judges of the credibility of testimony offered by witnesses.It is for them, generally, ... to say that a particular witness spoke the truth or fabricated a cock-and-bull story.”]; see also Washington v. Texas (1967) 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) [discussing the right to offer witness testimonyto the jury].) Accordingly, the trial court erred by analyzing Galindo’s credibility when determining whether to grant appellant a new trial based on the trial court’s refusal to grant a reasonable continuance to obtain Galindo’s testimony at the guilt phase. 2. The Error Was Not Harmless Beyond a Reasonable Doubt Where a Sixth Amendmentrightto a fair trial and a Fourteenth Amendmentdueprocessviolation are charged, this court must apply the Chapman standard of prejudice. (Chapman v. California (1967) 386 US. 18, 24.) Accordingly, to affirm, this Court must be able to declare a belief that the error was harmless beyond a reasonable doubt. (Ibid.) 13 Ws To do so, the court must find that "the error complained of did not contribute to the verdict obtained" — because it was "unimportant in relation to everythingelse the jury considered on the issue in question." (People v. Flood (1998) 18 Cal.4th 470, 494, quoting Yates v. Evatt (1991) 500 U.S. 391, 403.) As the United States Supreme Court held in Sullivan v. Louisiana (1993) 508 U.S. 275, "Harmless-error review looks . . . to the basis on which ‘the jury actually rested its verdict.’ [Citation.] The inquiry, in other words, is not whether,in 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." (Id. at p. 279.) Galindo's testimony was crucial to appellant's defense on the only issue in the Tacos el Unico counts — the identity of the shooter. There was no motivefor the Tacos el Unico shooting, and no physical evidence linked appellant to the crime. The prosecution case rested entirely on the testimony of Mendez and thereliability of his identification of appellant as the shooter. Two eyewitnesses, Foster Slaughter and Joe Galindo, described a muchtaller and heavier man 14 than appellant as the shooter. Mendez, the one prosecution witness, initially described a taller, heavier man as the shooter, but his description changed over time. Mendez was subjected to two suggestive identification procedures and viewed appellant sitting as the sole defendant at counsel's table at the preliminary hearing, cementing Mendez's belief that appellant was the "devil" who had killed his wife. No experttestified as to the unreliability of eyewitness identifications. In orderto raise a reasonable doubt, the defense had to counter Mendez's emphatic identification of Reed as the shooter. With only Slaughter's testimony regardingthe physical characteristics of the shooter, the jury could easily be swayed by Mendez's passion. A second eyewitness whose description of the fleeing shooter closely matched that of Slaughter would have added much weight to Slaughter's description. Galindo's testimony cannot fairly be characterized as “cumulative.” Galindo's testimony expanded upon Slaughter's testimony and provided additional facts not offered by any other witness. Slaughter and Galindo observed the shooter from different 15 angles and during different stages of the incident. Slaughter observed the shooter standing or walking at the scene of the shooting in the parking lot at the corner of Long Beach Boulevard and Glencoe, and saw him — from the back — run out of the parking lot and around the corner, to Glencoe. (3RT 569-576, 579-580.) Galindo observed the shooter from the front and side as the man fled along Glencoe in the direction of Temple Street. (6RT 1128-1129, 1136-1137; People's Exhibit 1.) These different angles and sequences gave the two witnesses distinctly different opportunities to observethe clothing of the shooter and his build. Slaughter described the man as wearing a puffy, knee-length black jacket, but he was not sure whether the jacket was zipped up. (6RT 1149-1150, 1153, 1155-1156.) Slaughter could not see the man's shirt or his upper body. (RT 578-579.) Galindo described the shooter as wearing a checkered shirt, but he could not recall describing a jacket to the police. (6RT 1129-1130, 1132-1137.) The jurors could reasonably have inferred that when Slaughter observed him, the shooter was wearing an unzippedjacket, and that the checkered shirt did not becomevisible until the shooter was running away and the 16 jacket flapped open as he ran. Thejurors could also have reasonably inferred that the jacket made moreof animpression on Slaughter while the shirt made moreof an impression on Galindo, dueto the sequence of events and their opportunity to observe. The jurors could also have reasonably determined that two eyewitnesses who were not emotionally invested in the shooting observed and remembereddetails about the shooter that Mendez could not — includingthe fact that the shooter was much taller and heavier than appellant. These unemotional and unbiased observations underminedthereliability of Mendez's identification of appellant as the killer, and both of them were necessary to the defense. Galindo's testimony wasalso crucial to the defense becauseit expanded upon Slaughter's somewhat equivocal description of the shooter as a man who waslarger than appellant. (6RT 1150 [shooter was "thicker than [Reed] arm-wise"; shooter looked like he had been lifting weights; was "solid in the arms"]; 6RT 1149-1150; [shooter was 5'9" to 6 feet tall and weighed 190 to 200 pounds]; 6RT 1155 [but Slaughter could not see the man'sshirt or his upper body].) Because 17 Galindo saw the man runningin his direction and apparently saw the jacket blowing open as the manran,the jury could infer that Galindo had a better opportunity to view the shooter's build than did Slaughter, whose opportunity to observe was impeded by the puffy jacket. Clearly the absence of Galindo's testimonyat trial prejudiced appellant, as it clarified and bolstered Slaughter's ambiguoustestimonythat the perpetratorof the Mendez shooting wasconsiderably taller and heavier than appellant. Additionally,the fact that Galindo was a memberof the National Guard might have madehis testimony morecredible in the eyes of the jury than that of Slaughter, who was a biker. The jury might reasonably havebelieved that Galindo, as a National Guardsman,was the more credible and reliable witness due to his military training. Galindo wasthe only defense witness whotestified definitively that appellant was not the shooter. The first penalty jury did not hear Galindo's testimony and reached a stalemate; the second penalty jury eventually reached a verdict after instruction from the trial court, but had a question about whether death wasstill on the table. 18 The prosecution's case was far from compelling. Eyewitness identifications are notoriously unreliable, especially where they have been manipulated or even created by suggestive identification techniques. (See AOB pp. 76-109.) There was no physical evidence linking appellant to the Tacos el Unicos crimes. Galindo’s testimony at the guilt phase would have greatly increased the likelihood of the guilt phase jury's entertaining a reasonable doubt of defendant's guilt. That jury could not reach a penalty verdict, splitting 7 to 5 in favorof life without possibility of parole. The trial court's refusal to grant appellant a reasonable continuance, effectively resulting in the exclusion of Galindo’s testimonyat the guilt trial, precludesa findingthetrial court’s error in denying the continuance and the motion for new trial based on that denial was harmless beyond a reasonable doubt. 19 C. The Trial Court Also AbusedIts Discretion UnderState Law in Refusing Appellant a Continuance to Obtain the Presence of a Material Witness in the Murder of Amarilis Vasquez and The Attempted Murder of Carlos Mendez 1. The State Law Standard The decision whetheror not to grant a continuance of a matter rests within the sound discretion of the trial court. (People v. Beeler (1995) 9 Cal.4th 953, 1003; People v. Howard (1992) 1 Cal.4th 1132, 1171.) The party challenging a ruling on a continuance bears the burden of establishing an abuseof discretion. (People v. Beeler, supra, 9 Cal.4th at p. 1003.) Underthis state law abuseof discretion standard, discretion is abused only when the court exceeds the boundsof reason, all circumstances being considered. (See People v. Jones (1998) 17 Cal.4th 279, 318; People v. Froehlig (1991) 1 Cal.App.4th 260, 265.) Courts have emphasized that the "arbitrary and capricious" pejorative boilerplate often used in describing the abuse of discretion standardis misleading, since it implies that in every case where a court is reversed for abuse of discretion, its action is utterly irrational. "Althoughirrationality is beyond the legal pale it does not mark the 20 legal boundaries whichfencein discretion." (City ofSacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) The scopeofdiscretion has always resided in the particular law being applied, and an action that transgresses the confines of the applicable principles of law is outside the scope of discretion and therefore an abuseof discretion. And, asa more recent case notes, a court's discretion is subject to the limitations of the legal principles governing the subject of its actions, and to reversal where no reasonable basis for the action is shown. (People v. Jacobs (2007) 156 Cal-App.4th 728, 738.) Thus, "a court abusesits discretion whenit acts contrary to law." (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016.) Even in abuseof discretion cases, an appellate court may conduct an independentreview whereit is in as good of a position as the trial court to decide the issue. (Hurtado v. Statewide HomeLoan Co. (1985) 167 Cal.App.3d 1019, 1024-1027.) 2. Respondent Omitsall of the Proceedings Leading Up to the Request Respondentomitsall of the timeline set out at pages 48 through 57 of appellant’s Opening Brief, demonstrating the defense was in 21 contact with witness Galindo as early as September2, 1998, and that Galindo remained available during all of the prosecution-created delays — including protracted indecision by the District Attorneyas to whetherto seek the death penalty. It was not appellant’s lack of due diligence that caused Galindo's absence duringthe guilt phase trial and first penalty trial. Appellant asks this Court to review and consider that timeline, even thoughhis counseldid not repeatit to the trial court during the motion to continue. 3. Respondent Omits Some of the State Law Governing The Good Cause Showing for a Continuance Respondentfails to address Jennings v. Superior Court (1967) 66 Cal.2d 867, which held: "The absence of a material witness for the defense ... has long been recognized as a ground for continuance... [when] the proposed testimony [is] material and cannot beelicited from another source.” (Id. at p. 876.) Respondentalso fails to address People v. Maddox (1967) 67 Cal.2d 647, which held that while thetrial judge has a certain amountof discretion in determining whether a continuance is appropriate, "that discretion may not be exercised in 22 such a mannerasto deprive the defendant of a reasonable opportunity to preparehis defense."(Id. at p. 652). Respondentalso fails to address Ungar v. Sarafite (1964) 376 U.S. 575, which held "a myopic insistence upon expeditiousnessin the face of a justifiable request for delay can render the right to defend ... an empty formality.” (Id. at p. 589.) Respondentalso omits any reference to White v. Ragen (1945) 324 USS. 760, which held "it is a denial of the accused's constitutional right to a fair trial to force him totrial with such expedition as to deprive him of the effective aid and assistance of counsel." (Id. at p. 764.) Respondent ignores all of the cases appellant cited in his Opening Brief where courts found error whenthetrial judge denied a defendant's request for a continuance for the purpose of obtaining relevant testimony from an otherwise unavailable witness. (Jennings v. Superior Court, supra, 66 Cal.2d 867, 876 [writ of prohibition granted whencourt erroneously denied four-day continuance at preliminary hearing to obtain testimony of witness who waspresentwith defendant at crime scene and could be cross-examined about defendant's intent]; People v. Buckey (1972) 23 Cal.App.3d 740, 744 [error in unlawful 23 possession case to deny request for continuanceto obtain testimonyof doctor whohad allegedly prescribed controlled substance]; Bennett v. Scroggy (6th Cir.1986) 793 F.2d 772, 774-775 [habeas corpus granted wheretrial judge refused to grant continuance to secure presence of witness who would testify that manslaughter victim had a reputation for violence]; Hicks v. Wainwright (5th Cir.1981) 633 F.2d 1146, 1148-1150 [it was error to deny continuanceto obtain testimony of expert witness concerning insanity defense, notwithstanding trial court's busy schedule]; Johnson v. Johnson (W.D. Mich.1974) 375 F .Supp. 872, 874 [habeas corpus granted whentrial judge denied continuance for out-of-state alibi witness, and prosecution had notasserted any special prejudice resulting from delay]; United States v. Flynt (9th Cir.1985) 756 F.2d 1352, 1359-1360 (modified on other grounds United States v. Flynt, supra, 764 F.2d 675) [contempt order vacated wheretrial court had denied defendant's request one day prior to hearing for a 30-day continuancefor the purposeof obtaining psychiatric examinations and possible expert witness testimony]; United States v. Powell (9th Cir.1978) 587 F.2d 443, 446 [reversible error to deny continuance to secure 24 presence of overseas witness whose exculpatory testimony would not be cumulative.] ) Respondentalso ignoresthe overriding consideration that, while the relevant factors must be evaluated on a case-by-case basis, ultimately the question becomes "whether substantial justice will be accomplished or defeated by a granting of the motion." (People v. Laursen (1972) 8 Cal.3d 192, at p. 204.) Further, in order for a continuance to be warranted, the defendant need not show that the proffered testimony is "vital," only that it is material. (Jennings 2. Superior Court, supra, 66 Cal.2d 867, at p. 876.) Respondentrelies upon People v. Beames (2007) 40 Cal.4th 907, 920, for the proposition that "[t]he party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuanceis seldom successfully attacked.” Beamesis distinguishable from this case, in that the continuance sought there was not to obtain a critical witness, but to conduct a survey related to a motion to change venue to demonstrate that the media coverage of the pretrial proceedings and another defendant's 25 just-concludedseparate trial had tainted the jury pool. The Supreme Court held that, since the defendantdid not actually move for a change of venue, but rather, he moved for a seven-week continuance on the eve of trial in order to explore the need for a venue change, the continuance wasnotjustified. Here, the situation wasentirely different — the defense sought to present a key witness who wouldtestify that appellant was not the man who committed the crimes at Tacos El Unicos. Respondentalso ignoresthe overriding consideration that, while the relevant factors must be evaluated on a case-by-case basis, ultimately the question becomes "whether substantial justice will be accomplished or defeated by a granting of the motion.” (People v. Laursen, supra, 8 Cal.3d 192, at p. 204.) Further, in order for a continuance to be warranted, the defendant need not show that the proffered testimonyis "vital," only that it is material. (Jennings v. Superior Court, supra, 66 Cal.2d 867, at p. 876.) 4, Respondent’s Argument Respondentarguesthetrial court did not abusehis discretion by 26 denying appellant’s motion for a continuance because: There was no written motion, just an oral motion made on the first day oftrial; The only facts presentedto thetrial court in support of the motion were 1) Galindo waspresent but did not actually see the Mendez/Vasquez shooting; 2) Galindo saw a person running away from the area of the shooting; 3) Galindo hadindicated to the police he could not identify the person he saw running awayfrom the scene, and 4) Galindo gave a description which was "somewhat... inconsistent" with appellant; Appellant’s counsel made noeffort to inform the court of the nature or extent of any attempts made by his investigator to locate Galindo or properly serve a subpoena; There no way of knowing if Galindo would ever come 2 These were the prosecutor’s statements. Unfortunately, appellant's counsel characterized them as “accurate.” (See 2RT 76.) 27 back or when he might comeback; e It was not the court's or the prosecution's burden to determine how long Galindo would be gone, but it was appellant’s burden to demonstrate at the time the continuance was requested, that Galindo's testimony could be obtained within a reasonable time. 5. The Trial Court Abused His Discretion At the outset, respondentargues: Appellant recites in length the efforts expended by his investigator in attempting to serve Galindo with a subpoenapriorto trial in support of his position that he diligently sought to locate the witness and obtain his presence in court. (AOB 62-63.) However, noneof these facts were presented to the trial court at the time of the continuance request but instead were arguedforthefirst time in the motion for a newtrial filed after appellant's conviction and judgment of death. (2RT 75-76; 20CT 5643-5650.) This Court's review is limited to the circumstances and the reasons presented for the continuance request. (People v. Frye, supra, 18 Cal.4thatp. 1013.) (RB 23, fn. 14.) Respondentcriticizes defense counsel’s failure to file a written motion and points out that the motion was madeonthefirst day of 28 trial. (RB 23.) Defense counsel made the motion on May 25, 1999. (2CT 456; 2RT 75-76.) Defense counsel Schmocker was appointed very late in the proceedings and had little time to prepare for this capital trial. Appellant had been charged on April 25, 1997 (Supp. CT II, 1-2; 3RT 513), but was not arraigned until May 20, 1998, due to questions regarding his competence to stand trial; at that point he was represented by Deputy Alternate Public Defender Jerome Haig. (1RT 1-4.) By July 7, 1998, the case had been reassigned to Deputy District Attorney Rob Knowles. (1RT 11.) It was nearly two years into the proceedings when Schmocker was appointed on February 11, 1999, and the case wentto trial on May 25, 1999. (2CT 456; 2RT 75-76.) The uncertainty about obtaining the presence of Galindoattrial continued right up to the morningthe trial began, when appellant’s investigator, Hoffman, spoke with Lieutenant Cooks, who advised that Galindo wasoutof California for summertraining. (19CT 5313-5314; 20CT 5650.) Cooks advised Hoffman he wasnot permitted to disclose Galindo'slocation, but said he would forward the subpoena Hoffman 29 had subserved on Sergeant Lettries to Galindo. (20CT 5650.) Cooks also told Hoffman he believed that Galindo would be made available to come to court as a witness. (19CT 5313-5314; 20CT 5650; 1RT 50.) Thus, it appears from the record that trial counsel had no opportunity to draft a written motion because he did not know such a motion was necessary until he was alreadyat the courthouse, waiting for the matter to be called. (a) The Length of Time Neededto Obtain The Witness's Testimony Was Not Excessive, And The Inconvenience or Prejudice Resulting From that Delay Would Have Been Minimal The court's sole reason for denying the continuance wasthat "there's no way of knowingif [Galindo will] ever come back or when he might come back." (2RT 76.) Respondent argues: More importantly, based on the facts presented to the court, "there[] [was] no way of knowing if [Galindo would] ever come back or when he might come back." (2RT 76.) Contrary to appellant's argument, it was not the court's or the prosecution's burden to "determine how long Galindo would be gone.” (AOB 60.) Instead, appellant had the burden of demonstratingat the time the continuance was requested, that Galindo's "testimony could be obtained within a reasonable time...." (People v. 30 Howard, supra, 1 Cal.4th at p. 1171.) Since the only information presented to the court wasthat Galindo had been transferred to Yugoslavia, there was no showinghis attendance could have been secured within a reasonable time - or at any time. Consequently, the court acted well within its discretion whenit declined to continuethetrial based on Galindo's unavailability. (RB 23-24.) The difficulty with this argumentis that neither appellant nor his counsel could determine when Galindo would return from whereverhe was, despite their best efforts. Furthermore, the reference to Galindo’s transfer to Yugoslavia was entirely speculative. All defense counselsaid on this score was “Mr. Galindoapparently has been transferred within his National Guard unit perhaps to Yugoslavia.” (2RT 75: italics added.) No one but the National Guard really knew where he was and authorities from the Guard had assured the defense that Galindo could be made available as a witness. Based on the abovefacts, it should be clear that defense counsel did his best to obtain Galindo’s presencefortrial, and could not obtain adequate information to determineif or when Galindo would appear. Perhaps had the court picked up the telephone and contacted the National Guard to inquire, he would have been taken moreseriously 31 than wastrial counsel. As is was,at the time counsel made the motion to continue, he could not make a “showing [Galindo’s] attendance could have been secured within a reasonable time - or at any time,”as respondentinsists he must. (RB 24.) Respondentignores the fact that the prosecutor did not argue any prejudice to his case if the continuance were granted. The inconvenience or prejudice resulting from what turned out to be a two-month delay would certainly have been minimal,if any, especially in view of the prior delays caused by the prosecution and the seriousnessof the charges and potential penalty appellant faced. Respondentasserts the People had no obligation to determine how long Galindo would be gone. (RB 23.) Respondent ignores the authority appellant cited in his Opening Brief holding while the Compulsory Process clause does not guarantee the actual attendance of witnesses soughtby the defense, the government mustitself exercise due diligence in a good faith effort to secure the attendance of subpoenaed witnesses. Asapreliminarystep, it would certainly have been reasonable for the court to grant a short continuanceto allow the 32 court or the parties to contact the National Guardto get a firm answer as to how long Galindo would beoutof the area on military duty, whenhe wouldbe available to testify if no special arrangements were made, and whatspecial arrangements might be possible to make him available. While the Compulsory Processclause does not guarantee the actual attendance of witnesses soughtby the defense, the government mustitself exercise due diligence in a goodfaith effort to secure the attendance of subpoenaed witnesses. (Maguire v. United States (9th Cir. 1968) 396 F.2d 327, 330; United States v. Murphy (6th Cir. 1969) 413 F.2d 1129, 1139; Johnson v. Johnson, supra, 375 F.Supp. 872, 875; and see generally, Westen, Compulsory ProcessII, 74 Mich.L.Rev. 191, 277-81 (1975).) Respondentignores the fact the court misdirected its pique at appellantfor the delays, but the court should not have been taking it out on appellant. Respondent ignoresthe fact appellant made only one motion for continuance — the motion madeonthefirst dayof trial— and it was summarily denied. All of the previous delays were either attributable to the prosecution’s failure to produce discovery and 33 failure to decide in a timely fashion whetherto seek the death penalty, or they were unavoidable dueto the conflict of interest and competency issues. A party must employ the legal means of compelling the attendanceof witnesses, or present a sufficient excuse for not doing so, before being entitled to a continuance on the groundsof the witness’ absence. (People v. Collins (1925) 195 Cal. 325, 333.) Where service is impossible or unavailing, it is an abuse of discretion to deny a continuance where a witness is amenable to process and the applicant has caused a subpoena to be properly issued and delivered to the properofficer with sufficient information so that the witness could be found. (Ibid.) The failure to serve a subpoena on a witness does not preclude a continuance whereservice is rendered impossible by the witness’ sudden departure from the state (see Loicano v. Maryland Cas. Ins. Co. (1974) 301 So.2d 897, 901), or where attendance cannot be procured by subpoena. (Allen v. Downing (1840) 3 Ill. 454.) The fact that the case had been pending for sometime did not justify denying the motion to continue the trial date. Although the 34 police investigation of appellant began around January of 1997, appellant was not arrested and charged until April 25, 1997. (3RT 449-451, 479, 513.) It is nobody's fault that a doubt was declared as to appellant's competence to stand trial in October of 1997, that he was found incompetentto standtrial in mid-Decemberof 1997, and that he wasnot found competent again until mid-April of 1998. (1CT 47, 53, 93, 95-96.) The prosecution sought a continuance of the preliminary hearing on April 28, 1998, and the preliminary hearing was not held until May 6, 1998. (1CT 98-100, 103.) The information wasnotfiled and appellant wasnot arraigned until May 20, 1998. (ICT 237-243.) A defense motion for a live lineup was heard and granted on June 15, 1998. (1RT 5-10.) The delay in seeking the live lineup wasnotthe fault of the defense, as the prosecutor had advised defense counsel Haig that he washaving difficulty contacting the witnesses, and Haig could not contact them, as he did not have their addresses. (1RT 7.) It was not appellant's fault that the District Attorney delayedfor monthsthe determination whetherto seek the death penalty (1RT4, 9, 12, 14-15, 17 [no decision until August 6, 1998]), or that the prosecution 35 delayed in turning over discovery. (IRT 21, 25, 27-28, 35-36, 42-43, 52-54, 62, 69 [discoverystill pending from the prosecutor as of April 14, 1999].) It also was not appellant's fault that hisfirst attorney, Haig, did not declare a conflict until the fourteenth pretrial on February 1, 1999, andthat Haig's replacement, John Schmocker, was not appointed until February 11, 1999, with the trial date of May 25, 1999 set at that point. (2CT 317-319.) The continuance in question wasthe only continuance requested by Schmocker. Thus, the delay in bringing this matterto trial was primarily due to the District Attorney's actions and to matters beyond the control of the defense. The fact that Schmocker could not state an exact date that Galindo would return was also beyondhis control and should not be dispositive. The National Guard personnel would neither tell the investigator where Galindo was stationed, nor would they state precisely when Galindo would return; however, on May 25, 1999, Lieutenant Colonel Cooks advised the investigator that he believed Galindo would be madeavailable to come to court as a witness. (20CT 5650.) When, on May 28, 1999, the investigatortried again to pin down 36 a time that Galindo would beavailable to testify, Private Herrera told him that neither Lieutenant Colonel Cooks nor Sergeant Letteries was available and Private Herrera did not know when they would be available. (20CT 5650.) As stated above, the court should at least have granted a short continuance to permit the parties or the court to determine Galindo's precise whereabouts and when he would be available, as opposed to denying the motion outright with no inquiry. Further, even if there were a serious dispute about defense counsel's diligence, the continuance should still have been granted, given the rights implicated. (See United States v. Flynt, supra, 756 F.2d 1352, 1359-1360 [although defendant "might have exercised greater diligence than he did," the courtfinds "the degree of diligence to have been sufficient" because "the continuance would haveserved a useful purpose, granting the request would not have inconvenienced the court, the other party or any witnesses, and (defendant) has suffered severe prejudice as a result of the denial of his motion"].) Appellant faced a capital trial, with the possibility that the jury would return a verdict of death, the ultimate prejudice. 37 Therefore, the length of time needed to obtain Galindo's testimony was not excessive, and the inconvenience or prejudice resulting from that delay would have been minimal. (b) Respondent Concedes, By Not Addressing, Appellant’s Argument Defense Counsel Demonstrated Sufficient Diligence In Locating the Witness and Obtaining His Presence in Court Like the prosecutor at trial, respondent does not dispute appellant’s diligence in attempting to obtain Galindo’s presenceattrial. (See AOB pp. 62-65.) Nor does respondent address appellant’s argumentthat, whereserviceis impossible or unavailing, it is an abuse of discretion to deny a continuance where a witness is amenable to process and the applicant has caused a subpoenato be properly issued and delivered to the properofficer with sufficient information so that the witness could be found. (People v. Collins (1925) 195 Cal. 325, 333.) The failure to serve a subpoena on a witness does not preclude a continuance where service is rendered impossible by the witness’ sudden departure from the state (see Loicano v. Maryland Cas. Ins. Co. (1974) 301 So.2d 897, 901), or where attendance cannot be procured by 38 subpoena. (Allen v. Downing, supra, 3 Ill. 454.) Respondent addresses none of the above authorities or argument. (c) The Anticipated Substance of Galindo's Testimony Was Material and Crucial to Appellant's Defense, and Was Favorable to Appellant The right to compulsory process permits the defendant to compel the attendanceattrial of only those witnesses who have information whichis material (Jennings v. Superior Court, supra, 66 Cal.2d 867, 876), that is, capable of affecting the outcomeofthetrial, and favorable to the defense. (United States. v. Valenzuela-Bernal (1982) 458 U.S. 858, 861, 873, 102 S.Ct. 3440, 73 L.Ed.2d 1193.) Respondent dismisses the materiality of Galindo’s testimony, falsely stating: “. .. Galindo, whose National Guard Unit had been transferred to Yugoslavia, was present but did not actually see the Mendez/Vasquez shooting ... he saw a person running away from the area of the shooting.” The prosecutor told the court that Galindo had indicated to the police that he could not identify the person he saw running away from the scene and that he gave a description which was 39 "somewhat... inconsistent" with appellant. (RB 23, citing 2RT 75-76.) Respondentfails to address the standard of materiality, which reflects the overriding concern with thejustice of the finding of guilt — meaning the omission mustbe evaluated in the context of the entire record. (United States v. Valenzuela-Bernal, supra, 458 U.S. 858, 868.) If there is no reasonable doubt about guilt whether or not the additional evidenceis considered,thereis no justification for anewtrial. If, on the other hand, the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. ([bid.) The right to compulsory process permits the defendant to compel the attendanceat trial of only those witnesses who have information whichis material (Jennings v. Superior Court, supra, 66 Cal.2d 867, 876), that is, capable of affecting the outcomeof thetrial, and favorable to the defense. (United States. v. Valenzuela-Bernal (1982) 458 U.S. 858, 861, 873, 102 S.Ct. 3440, 73 L.Ed.2d 1193.) The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt.... This means that the omission must be evaluated in 40 the context of the entire record.If there is no reasonable doubt about guilt whetheror not the additional evidence is considered, there is no justification for a new trial. On the other hand,if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. (United States v. Valenzuela-Bernal, supra, 458 U.S. 858, at p. 868.) Factors included in determining materiality for purposesof the right to compulsoryprocessarethe relative importanceof the issue, the extent to which the issue is in dispute, the numberof other witnesses whohavetestified on the issue, and the credibility of the witness in relation to other witnesses. (See State v. Garza (1985) 109 Idaho 40, 43, 704 P.2d 944.) Materiality also involves concerns that the absent witness have information that might have affected the outcomeof the trial (Com. v. Lahoud (1985) 339 Pa. Super. 59, 66, 488 A.2d 307), or that a reasonable basis be shownto believe that the desired testimony would be both helpful and material to the defense. (United States v. Ginsberg (2nd Cir. 1985) 758 F.2d 823, 831.) Judging by these standards, Galindo's testimony was not only material, it was crucial to appellant's defense. In fact, both witnesses 4] Slaughter and Galindo werevital to the defense case, especially since there are so manyvariables the jury must consider in determining the credibility of any given eyewitness. (See CALJIC No. 2.92.) Galindo wasthe only defense witness whotestified definitively that appellant wasnot the shooter, but was not able to do so until after the first jury had returned a guilty verdict.” In the context of the entire case, therefore, Galindo's testimony was not cumulativeof Foster Slaughter's testimony; rather, it was corroborative. (d) The Denial was an Abuseof Discretion Respondent acknowledgesthat discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare (RB 22), yet substantially fails to address appellant’s argumentestablishing thetrial court’s abuse of discretion here. Respondent fails to address People v. Fontana (1982) 139 Cal.App.3d 326, which held whena denialof a continuance impairs the 3 Moreover, the penalty retrial jury was instructed to accept the guilt verdict reached without the benefit of Galindo's testimony when deliberating regarding penalty, despite their doubts regarding one of the murders. (See ArgumentVIL, infra.) 42 fundamentalrights of an accused, thetrial court abusesits discretion. (Id. at p. 333.) Respondentalso fails to acknowledgethat an accused has a fundamental right to present witnesses in his defense (Chambers v. Mississippi, supra, 410 U.S. 284, 302), or that a defendant has a due process right to present exculpatory evidence. (Governmentof Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964, at p. 970, relying on Chambers v. Mississippi, supra, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297.) Thus, a defendant should not be denied access to witnesses who may provide exculpatory evidence. Respondentfails to address Childs v. State (1927) 146 Miss. 794, 112 So. 23, an analogous case where the defendant was accused of murder andconvicted after the court refused to grant a continuance to allow the defense to locate two witnesses who would testify to the elements of self defense. (Childs, supra, 146 Miss.at 797, 112 So.at 23.) The Childs Court reversed the conviction, noting how important and vital the testimonyfor the defendant, opiningthat the testimonyof the witness, who was a disinterested person, could not be considered cumulative because it would have corroborated the defendant’s 43 testimony andthat of his son. (Id. at 798, 112 So. 23.) In view of the critical nature of the issue before thetrial court, the materiality of the evidenceto be presented, and the procedural posture of the hearing on the motion, granting the motion for continuance would have accomplished substantial justice. (People v. Zapien (1993) 4 Cal.4th 929, 972; People v. Iocca (1974) 37 Cal.App.3d at 73, 79-80.) The trial court abused its discretion in refusing a continuance to permit counsel to bring Galindo to court, and in denying even a short continuance to determine when Galindo would becomeavailable, instead of summarily denying appellant's motion for a continuance. D. The Error is Reversible With No Showingof Prejudice Respondent ignores the rule that a denial of a fundamental constitutional right is not excused for lack of prejudice. (People v. Fontana, supra, 139 Cal.App.3d 326, 334.) The erroneous denial of appellant's continuance motion violated his Sixth Amendmentright to counsel, and his Fifth, Sixth and Fourteenth Amendment rights to present a defense. (Gardner v. Barnett (7th Cir. 1999) 175 F.3d 580; United States v. Gallo (6th Cir. 1985) 763 F.2d 1504; Bennett v. Scroggy, 44 supra, 793 F.2d 772.) Accordingly, even without a showingofprejudice, a newtrial is warranted. E. Even if a Showing of Prejudice is Required Here, Appellant's Conviction Must Be Reversed In arguinglack of prejudice, respondentglosses overthefact that the only issue as to the Mendez counts wastheidentity of the shooter. Appellant again points out there was no motive for the Tacos el Unico shooting, and no physical evidence linking appellant to the crimes. Respondent's suggestion that Galindo’s testimony would have been cumulative because “[t]he evidence of appellant's identity as to the Mendez/Vasquez shooting was established by Mendez” (RB 25) ignoresthe fact that appellant had a constitutional right to present his defense of misidentification. (U.S. Const. Amends. V, VI and XIV; Gardnerv. Barnett, supra, 175 F.3d 580; United States v. Gallo, supra, 763 F.2d 1504; Bennett v. Scroggy, supra, 793 F.2d 772.) Respondent sets out Mendez’s various descriptions of the shooter and argues they were “mostly consistent” with appellant's photograph and DMVidentification card information. (RB 25-26.) 45 Respondent also emphasizes Mendez’s three “positive[] and unequivocal[]” identifications of Reed as the shooter. (RB 26.) As previously noted, those descriptions and identifications are unreliable. Mendez observed the shooter in the dark and under extraordinarily stressful circumstances; he was traumatized and confusedat the scene, and wasreceiving emergency medical treatment for a gunshot woundas the police questioned him; his identification was cross-racial, rendering it less reliable; suggestive identification procedures administered by the police contributed to the unreliability of Mendez’sidentification of appellant as the perpetrator; and multiple identification proceedings created the unacceptable risk that a false memory wascreated in Mendez's mind. Initially, Mendez said he was unable to rememberthe shooter's face, and he was impeachedattrial on his multiple inconsistencies regarding the descriptions he gave. Respondent then argues “had Galindo returnedin time to testify at the guilt phase, his testimony would have had little impact in countering Mendez's identification of appellant as the shooter, evenif considered together with Slaughter's testimony.” (RB 26-27.) 46 Respondent arguesspecifically: Slaughter testified he saw the shooter while standing approximately 50 feet away but could not recognize his face. (3RT 572.) Galindoalso observedthe shooter while standing over 50 feet away, twice the distance between the shooter and Mendez, and admitted he was unable to see the shooter's face becauseit was "pretty dark" outside. (6RT 1129-1130.) Unlike Mendez, Galindo and Slaughter never had an opportunity to face the shooter and Galindo only observed the shooter running past him. (3RT 573, 575-576; 6RT 1128-1130.) Although Galindo and Slaughter both opined that appellant was not the shooter because the gunman was bigger or "thicker" than appellant (RT 574; 6RT 1131-1132), this could be explained by Slaughter's own observation that the shooter was wearing a black "puffy jacket" GRT 576-577), which could have given them the 47 wrong impression that the shooter was bulkier than he really was. (RB 26-27.) The prosecutioncaserested entirely on the testimony of Mendez andthereliability of his identification of appellant as the shooter. The significance of Slaughter’s and Galindo’s testimonylies in the size of the man they saw, not whether or not they could see or describe the shooter's face or identify the shooter from a photo spread; therefore, the first three factors respondent argues do not weigh against the prejudice to appellant of losing Galindo as a witness becausethe court would not grant a continuance. For the above reasons, the error must be foundto be prejudicial, and appellant's convictions as to Mendez and Vasquez must be reversed. 48 Il. THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN APPELLANT’S CONVICTIONS FOR THE MURDER OF AMARILIS VASQUEZANDTHEATTEMPTED MURDEROF CARLOS MENDEZ Respondent argues there is substantial, reliable evidence sufficient to sustain appellant’s convictions for the murder of Amarilis Vasquez and the attempted murder of Carlos Mendez. (RB 27-32.) Respondent improperly bases its argument onisolated bits of evidence — not the entire record — and ignoresthereality that in recent years the courts and scientists have repeatedly demonstrated eyewitness identifications, under certain circumstances, are far from reliable evidence, and that there is a very real threat of misidentification and false conviction in cases where an eyewitness identification is not corroborated. Finally, in analyzing the evidence, respondentfails to mention the two compelling eyewitnesses appellant presented who described a different shooting and a muchdifferent shooter, and both of whom declared that appellant was not the person they saw shooting at Mendez and Vasquez. 49 A. Respondent Omits Authority Governing the Standard of Review Respondentfails to address the following legal principles: A defendant may notbe convicted of a crimeif the evidence presented at trial is insufficient to persuade a rational fact finder beyond a reasonable doubtthat the defendantis guilty. (Jackson v. Virginia (1979) 443 U.S. 307,319, emphasis added.) "Evidence, to be ‘substantial’ must be 'of ponderable legal significance... reasonablein nature, credible, and of solid value." (People v. Johnson (1980) 26 Cal.3d 557, 576.) "The test on appeal becomes whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mosher (1969) 1 Cal.3d 379, 395.) The court does not, however, limit its review to only the evidence favorable to the respondent; the issue is resolved asto the whole record, and not isolated bits of evidence selected by the respondent. (People v. Johnson, supra, 26 Cal.3d at 577.) Due process mandatesthat the standard for evaluating the sufficiency of evidence in a criminal case is whether any rationaltrier of fact could find guilt 50 beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. 307, 317-318; 99 S.Ct. 2781, 2788-2789.) The evidence must be substantial enough to support the finding of each essential element of the crime. (People v. Barnes (1986) 42 Cal.3d 284, 303.) " Respondentomits discussing the sufficiency test for eyewitness identification. Consideration must be givento (1) the opportunity the eyewitness hadto observethe assailant, (2) the lapse of time between the offense andthefirst identification procedure;(3) whethertheinitial description compares favorably with the person accused; and (4) the effect of any emotion, such as extreme fright, experienced by the witness during the encounter which mightlessen the valueofhis later selection of the accused as the culprit. (United States v. Smith (9th Cir. 1977) 563 F.2d 1361, 1363.) Respondent admits, however, that where an eyewitnesshas been subjected to undue suggestion, the fact finder is allowedto hear and evaluate the identification testimony, unless the retetotality of circumstances suggests ""'a very substantial likelihood of irreparable misidentification.""' (People v. Arias (1996)13 Cal.4th 92, 168.) 51 B. The Evidence The Prosecution Presented Was Insufficient To Support Appellant's Convictionsfor the Murderof Amarilis Vasquez and the Attempted Murder of Carlos Mendez in the Tacos El Unico Shooting The only question before the jury wasthe identity of the shooter. Thesole incriminating evidence introduced by the prosecution against appellant was the eyewitness identification testimony of the surviving victim, Carlos Mendez, which respondentrepeatsin its brief. (RB 28- 29.) Citing cases holding the testimony of a single eyewitnessis sufficient to support a conviction, respondent concludes Mendez’s identifications of appellant are sufficient to support appellant's convictions on the Tacos El Unico counts. (RB 29-30.) Respondent dismisses appellant’s argumentto the contrary as “nothing more than an attack on the credibility of Mendez and an improper attempt to reweigh the evidence on appeal” and insupportable because “Appellant cannot demonstrate that Mendez’s testimony was inherently improbable or physically impossible.”* (RB 30.) 4 Here respondentrelies upon People v. Lewis (2001) 26 Cal.4th 334, 361; People v. Diaz (1992) 3 Cal.4th 495, 541; and People v. Barnes, supra, 42 Cal.3d 284, 303. Lewis had to do with the competence of a witness who 52 Respondentsubstantially fails to address appellant’s argument. 1. Respondent Omits Mendez's Account of the Shooting (a) Mendez Saw Only a Gun Respondent fails to address the facts regarding Mendez’s observations during the shooting — the observations upon whichall of his subsequentdescriptions and identifications depended. It was dark out, and Mendez’s first awareness of a problem was Amarilis’s statement, "Lookat that guy - he has a big pistol.” (3RT 463-464, 489.) In response to the district attorney's questions about what Mendez noticed about the man, Mendezessentially described, in detail, a pistol inaman's hand. (3RT 464-465, 469 [gunin his right hand with his right index finger in the trigger guard; gun pointed downat the ground]; suffered from mental disorders and whosetestimony wasdifficult to comprehendat times, pursuant to Evidence Codesection 701. Diaz had to do with medical experts’ testimony regardinglidocainelevels in the blood of the deceased. In Barnes the question was whetherthere was substantial evidence of rape by meansof forceor fear of immediate and unlawful bodily injury underthe provisionsof section 261, subdivision (2). These cases simply are not comparableto the issue here, whichis the inherent unreliability of uncorroborated eyewitnessidentifications where the police employed suggestive identification procedures. 53 3RT 469, 488-489 [weaponwasa pistol, not a rifle, and it was about 10 to 12 inches long].) Mendeztestified that, after observingthepistol, he told his wife not to worry and started the truck. (3RT 468-470.) The pistol was pointed at them "for like, uh, three seconds," and then the shooting started. (3RT 470-472, 492.) Respondent ignores Mendez’s contradictory testimony that he did not know wherethe shooter was whenhestarted shooting. (8RT 476-478; People's Exhibit 14.) Respondent ignoresthe fact that from the time the man walked from the corner up to the point wherehestarted shooting, Mendez was no longer looking at him because he was starting the truck. (3RT 471.) Respondent ignores Mendez’s testimony that after he was shotin theface, he did not see the shooter again. (3RT 187.) While the area was “reasonably well lit” and Mendez might have had — as respondentstates, “ample opportunity to observe appellant prior to being shot” (RB 28) - Mendez indicated he did not take that opportunity to observe because he was busytryingto start his truck and wasnot looking at the man with the gun. (3RT 471-473, 492.) Respondentalso omits discussing Mendez’s testimonythatafter 54 he wasshotthe first time, in the jaw, he "felt like I was dying, I was killed." (SRT 472.) He was out of "this world." (3RT 473.) When he wasshot a second time, Mendez's panic increased: "I thought I was — I was, you know,close to death, so running for — becauseat that time, I forgot my wife, I forgot everything." (3RT 474.) (b) Mendez’s Descriptions Were Inconsistent Respondentinsists Mendez “gave consistent descriptions of the shooter on three separate occasions.” (RB 28.) That simplyis nottrue. Thefirst description Mendez gave wasof a black male wearing a black Jacket. (3RT 500-501.) At the preliminary hearing Mendeztestified the . shooter's shirt was white. (3RT 491.) Respondent omits Mendez'strial testimony that the shooter was bald and wearing "like a black shirt — I mean T-shirt,” and, "I don't rememberpretty well." (3RT 489-490.) When the district attorney sought on redirect to clarify Mendez's cross-examination answer, Mendez responded: "You know,I really, you know,that was seconds, so I used,so, as I'm saying, I wasclose to death . . I really, you know,didn't have timeto look at him, you know, you know,like a couple minutes and look, you know,whathe, howis 55 he dressing or whatthe colorraceor like....". (RT 497.) Respondentdoes not address Mendez’s testimony he had never seen the shooter before the attack, but when shown a photographic line-up four monthslater, he insisted the shooter looked the sameas the photograph he picked out (3RT 483), and the person he picked out of a live line-up was the person he had seen in the photographic line-up. (RT 49.) When quizzed about whether the shooter had any facial hair, Mendez equivocated until he returned to the subject of the man's baldness, which Mendezaffirmed wasthe primary characteristic he noticed, "and his eyes." (3RT 494-495.) Mendez had neverbefore mentioned the shooter's eyes, and he hadtold police on the nightof the shooting the killer had “short black hair.” (3RT 505.) At some unspecified time, Mendez described the gunmanto the police as being 5'11" and between 150 and 180 pounds, and bald.” (3RT 494.) Respondent omits Mendez’s testimony, when challenged about 5 Respondentfails to note that the early descriptions Mendez gave were very similar to the descriptions given by the two defense witnesses, Foster Slaughter and Galindo, of a man muchlarger than appellant. (See AOBpp. 23-24, 68-69, 71, 74 and 92-94.) 56 the clothing description, he wasafraid and his opportunity to observe the shooter wasbrief, he did not pay attention to the clothes, but he insisted he saw the shooter's face and the gun. (3RT 492.) 2. RespondentIgnores Mostof the Facts Regarding the Suggestive Identification Procedures As evidence of the reliability of Mendez’s identification of appellant as the perpetrator of the Tacos El Unico crimes, respondent argues “Mendez positively identified appellant as the shooter in two separate lineups” and then positively identified appellant at the preliminary hearing and the trial. (RB 29.) Respondent omits discussion of mostof the facts demonstrating the suggestivenessof the identification procedures. (See AOB pp. 82-107.) More than four months after the shootings, Detective Paiz showed Mendeza series of six photographsat the police station. (3RT 461,479-480, 483; People's Exhibit 8.) The only bald individual in the lineup was appellant, in photo #6, and he was wearing a white T-shirt. (People's Exhibit 8.) Mendez immediately picked out photo #6. (3RT 480.) Respondent disagrees the photo-spread was in any way 57 suggestive because appellant was the only bald man andthe only person wearing a white T-shirt. (RB 30-31.) Instead, respondent nonsensically argues that because Mendez early on “described the shooter to Detective Paiz as having short black hair and wearing a black jacket,” Mendez’s choice of the one individual who wasbald and dressedin white clothing in the display “further increasesthe reliability of Mendez’s positive identification.” (RB 30.) This argument ignores (1) the evolution of Mendez’s descriptions of the shooter, and (2) the authorities finding such a lineup technique unduly suggestive. (See, e.g., United States v. Wade (1967) 388 U.S. 218, 232-233.) (a) The Evolution of Mendez’s Descriptions Immediately after the shooting, Mendez described the shooterto police as a "male black with a black jacket." (3RT 499, 501.) Later that night Mendez described the shooter in two separate interviews as a black male about 5'8" to 5'11" in height, 20 to 25 years old, clean shaven, short black hair, wearing a black jacket and black pants" (RT 505), and as a male black adult, 25 years old, wearing black pants and a black jacket, clean shaven, with short hair, 5'11", 150 to 180 pounds, with a 58 medium complexion. (3RT 581-582.) Thesefirst descriptions werecloser to the descriptions Slaughter gave the police at the time of the shooting — a male black in a black jacket and black pants, around 5'8" to 5'11"tall, black hair, between 150 and 180 pounds (3RT 494, 501, 505; 5RT 1027) — than the shorter, skinny bald guy in a white T-shirt Mendez described muchlater and identified as the shooterat the preliminary hearing andattrial. (1CT 181-183, 191-192; 3RT 490, 494-495, 497; 5RT 1025-1027.) By the timeof the photographic lineup, however, appellant was the suspect, and he did notfit the early descriptions Mendez had given to the police. By the time of the live lineup, Mendez had already seen appellant at the preliminary hearing. (RT 481-482, 484.) That does not make Mendez’s selection of appellant “morereliable” - that indicates the police were looking for a way to get Mendezto identify appellant, and one way wasto put a photographof the bald appellant wearing a white T-shirt among an array of men whowerenotbald. Tracking Mendez's descriptions, the shooter morphedfrom tall, solidly built man with black hair, wearing black clothing, to a short, 59 skinny bald man wearing a white T-shirt. This transformation occurred with the assistance of the suggestive photographic lineup, where Mendez made a very positive identification, selecting the one individual who had a bald head. (3RT 480; People's Exhibit 8.) The shooter's baldness wasthe one consistent descriptor given by Mendez. (See 3RT 489-491, 494-495; 5RT 1025; 1027; 6RT 1200-1201.) Especially in light of the testimony of two other eyewitnesses that the shooter was a tall, heavy-set man who was not appellant (3RT 588-589; 6RT 1130-1132), Mendez's identification of appellant as the shooter is unreliable. (b) The Authorities Do Not Support Respondent The authorities respondent cites do not support respondent’s argument. People v. Gonzalez (2006) 38 Cal.4th 932, addressed trial court’s finding a photographic lineup was not impermissibly suggestive, using a deferential standardof review.° (Id. at p. 943.) The 6 There was no motion to suppress the identifications in this case, and the defense failed to present expert testimony on eyewitness identifications. 60 photographic lineup contained photographsof six different persons, including Gonzalez. Gonzalez claimedattrial that the lineup was impermissibly suggestive because (1) he was the only one wearing “gang-type” clothing, (2) he “ha[d] a droopy eyein the photo,” and(3) his photograph wasdiscolored. This Court concluded: Here, nothing in the lineup suggested that the witness should select defendant. As the trial court found, nothing about defendant's clothing suggested his photograph should be selected. We cannot discern any significant distinctiveness about defendant's eye. In any event, none of the witnesses described the gunman as having a distinctive eye, so any distinctiveness in the photograph would not suggest the witness shouldselect that photograph. Moreover, “it would be virtually impossible to find five others who had”a similar eye “and who also sufficiently resembled defendant in other respects.” ([bid.) Finally, any discoloration in defendant's photograph would notsuggest it should beselected. (Ibid.) Gonzales is factually distinguishable from this case in that the color of Gonzales’s clothing combined with baldness is not what distinguished him from the other five men in the lineup. While the Gonzales Court could not see anythingdistinctive about the defendant's eye, clearly in appellant’s case he is the only individualin the lineup 61 with a bald head, and it would not have been difficult to find another person or persons with bald heads to place in the lineup so that appellant would not have been the only such individual. A year and a half after Mendez viewed the suggestive photographic lineup, and after having seen appellant sitting with his lawyerat the preliminary hearing, Mendez viewed appellantin a live lineup. (RT 481-482, 484.) Appellant was the only person in common between the photographic six-pack and the live lineup. This is a suggestive factor that should never be permitted to occur. (See Foster v. California (1969) 394 U.S.440, 441-443; 89 S.Ct. 1127, 1128-1129; SeeP. Wall, Eye-Witness Identification in Criminal Cases 74—77 (1965).) Respondent omits Mendez’s testimonythatat the live lineup he picked the man he had previously seen in the photograph. (3RT 493-494.) Mendezalsotestified that he could identify appellant in court because appellant's face was the same face he saw in the photograph. (3RT 495.) In other words, after viewing the suggestive photographic lineup, Mendez admitted to subsequently identifying appellant because he had previously seen his photograph in the suggestive six-pack. That 62 is not substantial, credible evidence, especially in the absence of any physical evidence linking appellant to the shooting, no corroboration of Mendez’sidentification of appellant by another eyewitness, and the testimony of two other eyewitnesses whoinsisted appellant was not the man they saw doing the shooting and running from the scene. 3. Respondent Substantially Fails to Address Appellant’s Argument Mendez's Identification of Appellant as the Shooter Is Not Substantial, Credible Evidence Respondent dismisses appellant’s detailed argument regarding the unreliability of uncorroborated eyewitness testimonyas the basis for a conviction — especially in a capital case - instead offering the conclusory statement that “the testimony of a single eyewitnessis sufficient to support a conviction.” (RB 29-32.) Rather than repeathis argument here, appellant refers this Court to pages 82-108 of his Opening Brief. Respondentcriticizes the authorities appellantcites, but does not address in any waythe key authorities discussing the lack of reliability of such testimony — especially where uncorroborated — such as United 63 States v. Wade, supra, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149; United States v. Smith, supra, 563 F.2d 1361, 1365, and Jackson v. Fogg (2d Cir.1978) 589 F.2d 108, 112. Even the United States Supreme Court has recognized the dangers of mistaken identification and the risk of fatal errors when — asin this case — the witness’ opportunity for observation was insubstantial, and his susceptibility to suggestion great. (United States v. Wade, supra, 388 U.S. 218, 228-229, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149.) This was a stranger identification, based solely upon a single brief observation under extraordinarily stressful conditions. Respondent makes no attemptto counter the extensive research on the reliability problems of eyewitness identification appellant has pointed out in his OpeningBrief, or the problemsthat arise whenjuries are not given access to that information to aid their fact-finding tasks and to disabuse them of myths aboutthe reliability of eyewitness testimony. (See United States v. Brown (D.C.Cir.1972) 461 F.2d 134, 145-146, fn. 1 (conc. & dis. opn.).) Appellant’s arguments, therefore, do not constitute an improper attack on Mendez’s credibility or an improper 64 re-weighingof the trial evidence. Rather, appellant has established that Mendez’s uncorroborated eyewitness testimony, under the circumstancesof this case, and in light of recent scientific research that courts have recognized as legitimate and troubling, is not substantial, credible, reliable evidence sufficient to support appellant’s convictions of the Tacos el Unico crimes. Respondentalso ignoresthe fact appellantfalls into thatclassof defendants who cannotbenefit from DNA evidence to exonerate him in the event of a mistaken identification, as there was no DNA evidence left at the scene of the Mendez shooting by the shooter; indeed, there was no evidence other than Mendez's faulty identification linking appellant to the crime. Respondent dismisses, without discussing, the report the California Commission on the Fair Administration of Justice issued in 2006. (RB 29; see discussion at pages 87-89 of Appellant's Opening Brief.) This Court should consider the Commission’s concern that "the risk of wrongful conviction in eyewitness identification cases exists in California, as elsewhere in the country, and that reformsto reduce the 65 risk of misidentification should be immediately implemented in California. (Id. at p. 3.) 4, Respondent Ignores the Fact Other Witnesses With Greater Opportunity to Observe Described A Different Shooter, and a Different Shooting Respondent entirely ignores the testimony of the two eyewitnesses — Foster Slaughter and Joe Martin Galindo — who were not undertheterrible stress suffered by Mendez, and who had greater opportunity to observe the Tacos el Unico shooting. Both mentestified a man muchlarger than appellant shot Mendez and Vasquez. The circumstances and observations of Slaughter and Galindo have been thoroughly described in the AOB and in the previous argument and neednotbe repeated here. Suffice to say that both men werein better emotional and physical position to makean accurate eye witness identification than was Mendez. Both Slaughter and Galindo described a very different perpetrator than Mendez. 5. Conclusion Appellant's conviction for the attempted murder of Mendez and the murder of Vasquez rested entirely upon the uncorroborated 66 testimony of Mendez. No weaponwasrecovered, no fingerprints were found, there were no surveillance videotapes, and there was no DNA to link appellant to the shooting. In light of the developmentsin the science of eyewitness identification since the late 1970's, Mendez's testimony is not substantial, credible evidence sufficient to sustain appellant's convictions for the murder of Amarilis Vasquez and the attempted murder of Carlos Mendez. Furthermore, the trial court's error in refusing to grant a continuance deprived appellant of important testimony that would have tended to undermine Mendez's identification.’ Becausethe penalty of death is qualitatively different from any other sentence, a greater degree ofreliability is required in imposingit than wasaffordedin this case. (Woodson v. North Carolina (1976) 428 U.S. 280, 305.) The convictions mustbe reversed, and the death penalty vacated. ” See AOB, ArgumentI. 67 Ill. THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT'S CONVICTIONS FOR THE MURDER OF PAUL MORELAND AND THE ATTEMPTED MURDER OF ROY FRADUIE Respondent argues there is substantial, reliable evidence sufficient to sustain appellant’s convictions for the murder of Moreland and the attempted murderof Fraduie. (RB 32-34.) As in the case of the Tacos El Unicoscrimes, respondent improperly bases its argument on isolated bits of evidence — not the entire record — and ignores the reality that in recent years the courts and scientists have repeatedly demonstrated eyewitnessidentifications, undercertain circumstances, are far from reliable evidence, and that there is a very real threat of misidentification and false conviction in cases where an eyewitness identification is not corroborated. Fraduie's unreliable identification of appellant as the shooter, linked with discovery of the murder weapon in a house to which appellant had no apparent connection, is insufficient evidence to support Reed’s convictions for the murder of Moreland and attempted murder of Fraduie. No reasonable jury could find this evidencereliable 68 enoughto conclude beyond a reasonable doubtthat appellant was the perpetrator. A. Respondent Omits Authority Governingthe Standard of Review Appellant incorporates by reference as thoughfully set forth here his discussionof the relevant standardof reviewset forth in Argument IV.A., ante.) B. Respondent Omits All of the RelevantFacts Establishing The Deficiency 1. Respondent Omits Facts Pertinent to the Shooting Like the case against appellant for the murder of Amarilis Vasquez, the evidence appellant was the perpetrator in the Moreland/Fraduie case rests on the uncorroborated testimony of another victim, Roy Fraduie. Fraduie's identification was at least as unreliable as that of Mendez because of Fraduie's intoxication and his unexplained reluctance to report the incident to authorities. Respondent asserts appellant’s arguments are based upon “minor inconsistencies” in the record. (RB 34.) They are not. Respondent omits the fact that Fraduie never reported the 69 shooting to the police and ignores the events leading up to Fraduie’s eventualselection of appellant in suggestive lineup proceedings. The shooting occurred on November22, 1996. The police located Fraduie five months after the shooting, at which time Fraduie was unable to describe the man he saw holding the gun. On April 18, 1997, the police showed Fraduie a suggestive photographic lineup with six men displayed, and heselected appellant.* Then on May6, 1998, Fraduie saw appellant at the preliminary hearing. Finally on July 14, 1998, Fraduie picked appellant out of a live lineup. The scenario of events leading to Fraduie’s identification of appellant completely undermine the reliability of his identification. Respondentnotes the prosecution’s attempt to bolster Fraduie’s identification testimony with evidence the murder weapon wasfound in a closet in the duplex outside of which a group of approximately ten 8 Appellant incorporates by reference his discussion of the suggestiveness of the photo lineup in ArgumentII, supra, sections 3 through 5. The lineup was presented by Detective Paiz — the lead detective in this case — and there is no record of what was said during this identification procedure. 70 to fifteen men had been standingjustprior to the shooting. (RB 33-34.) Morelandtestified the gun the man washolding “looked like” People’s Exhibit 5 — determined throughballistics testing to be the murder weapon. However, no onetestified appellant had ever beeninside of that duplex or had any connection with the gun. (See 3RT 355-362, 364-370.) Respondent omitsall of the evidence of Fraduie’s extremelevel of intoxication at the time of the shooting. Fraduie testified that he and Paul Moreland had "a few drinks" over the six or seven hoursprior to the shooting. (3RT 371-373.) While Fraduie admitted to drinking Olde English 800 Malt liquor "half of a day," he was impeached with his preliminary hearing testimony he wasdrinking all day. (3RT 393-394, 398.) Fraduie admitted he drank until nearly 11 p.m., and felt the effects of the alcohol "somewhat." (3RT 398-399.) While at first Fraduie denied being underthe influenceof any other drugsthat night, he later admitted he had "smokeda little weed." (3RT 399.) Moreland's autopsy revealed that he had ingested alcohol, cocaine and phencyclidine (PCP) in the hours preceding his death. (RT 546-549.) 71 Respondent omits the fact the shooting occurred around 11 or 11:30 at night. (3RT 374.) Respondent ignores Fraduie’s testimony there were about ten men standing in a fenced yard in between two duplexes — not in frontof a duplex, as respondentasserts. (See RB 33; 3RT 373-376, 389-391; People's Exhibit 6.) Respondent refers to “multiple street lamps illuminating the location” (RB 33); however, there were only two — onestreet lamp downthestreet from the duplex and anotherlight standard onthe other side of Glencoe. (RT 394-397; People's Exhibit 1.) Respondent omits mention of Fraduie’s testimony he had never seen the manholding therifle before (3RT 374-375, 391), and Fraduie did not know that man or any of the other men standing in front of the duplex. (8RT 375, 391.) Respondent deceptively suggests Fraduie testified he saw appellantfire a gun. (RB 33.) The truth is Fraduietestified he heard, but did not see, a gun being fired. (3RT 377 [“Q. Did yousee it or just hear it? A. I heardit.”].) Fraduie also did not see Moreland being shot; he simply saw a man, standing among several men, holding a gun before the gunfire broke out, after Fraduie and Moreland had walked 72 past them. Respondent omits Fraduie’s admission he did not see the man bring the gun down: "No,I didn't pay no attention. I wasn't trying to see whenhe wasbringing it down. I wastrying to get out of dodge." (3RT 378.) They were already past the duplex when Fraduie heard, but did not see, therifle fired. (RT 377.) Asked how he knew the man shot up into the air, Fraduie testified: "Cause it didn't hit nothing. Because he shot up in the air, and then he brought it downandstart shooting. Then he start shooting at us. We had start[ed] running.” (3RT 377-378.) Respondentignores Fraduie’s testimony that he and Moreland wereinitially on the sameside of the street as the duplex. (3RT 378.) When the shooting began and they started running, Fraduie and Moreland were about one house down from the duplex. (3RT 379.) Fraduie ran on a diagonal to the corner, then downtheright side of the sidewalk on Temple, across the street from the duplex and around the corner, down Temple to Greenleaf. (3RT 378-380.) He hoppedthe gate "where they grow flowers andstuff," and ran all the way down to Long 73 Beach and Artesia where he saw anotherfriend, who gave him a ride back to his uncle's house. (3RT 378.) Moreland ran the opposite direction down Temple. (3RT 378, 380.) After Fraduie started running, he never looked back at Moreland. (3RT 380-381.) Fraduie did not actually see Moreland being shot; he only saw a man holding a gun. (3RT 392.) 2. Respondent Ignores’ Fraduie's Evolving Descriptions of the Shooter Respondentomits discussion of the facts pertaining to Fraduie’s evolving descriptions of the shooter, dismissing them as “improper attempts to reweigh the evidence on appeal.” (RB 34.) The issue is whether the evidence is substantial and reliable, and for that reason facts demonstrating insubstantiality and unreliability must|be treated as relevant and should be addressed by respondent. Fraduie did notcall the police after the shooting, and did not haveany contact with the police for several monthsuntil Detective Paiz located and interviewed him. (3RT 382-384, 391, 399-400.) In that initial meeting, Fraduie was unable to describe the shooter. (3RT 74 391-392.) Fraduie testified that he "couldn't tell them right at the present moment, because my mindwaslike blurry." (3RT 392.) Despite his inability to describe the shooterto the police months after the event, at trial —yearsafter the shooting — Fraduietestified very specifically that the person "hadlow cuthair, abouta little shorter than mine,” "like a quo vadis" and "like an east coast haircut, real low" - meaning "real short." (3RT 392-393.) At trial Fraduie described the person with the gun as a black man, whose complexion was "in between colors, about my complexion, buta little - about a lighter shade — about a shade dark.” (3RT 394.) The man with the gun did not have anyfacial hair, and was not wearing a hat. (3RT 397.) Fraduie could not remember the man's clothing. (3RT 397.) These details emerged only after Fraduie had been showna photo lineup in which appellant was the only individual with very short hair, and after Fraduie had opportunities to view appellantat the preliminary hearing and ina live lineup. (1CT 139; 3RT 392-393, 511-512.) Respondentfails to discuss anyofthese facts. 75 3. The Suggestive Identification Procedures Respondentignoresall of the details regarding the suggestive identification procedures, effectively conceding that the procedures were suggestive.’ (People v. Bouzas (1991) 53 Cal.3d 467, 480 [The People apparently concede” an argument “they simply ignored ... in their brief and at oral argument” ]; California School Employees Assn. v. Santee School Dist. (1982) 129 Cal.App.3d 785, 787 [“the district apparently concedesbyits failure to addressthis issue in its appellate brief...”].) On April 18, 1997, five monthsafter the shooting, Detective Paiz took Fraduie to the Compton Police station, gave him an admonition, and showed him a photographic lineup. The interview wasnotrecorded. (3RT 384-386, 393, 511; People's Exhibits 8 and 10.) Fraduie selected appellant's photograph, #6, as the shooter. (3RT 385-386; People's Exhibit 8.) Fraduie testified it took him about 10 minutesto select the photo of appellant. (@RT 386-387.) Fraduie denied 9 Respondent’s entire summaryis: “Fraduie later positively identified appellant as the shooter in two separate occasions [sic], first in a photographic lineup at the police station and subsequently in a live lineup at the jail.” (RB 33.) 76 any confusion, but admitted that he did not recognize Reed immediately. (3RT 387.) Fraduie testified he studied the photographs “for a minute” and "fora little while.” (3RT 387.) Fraduie told Detective Paiz, "That's him" and pointed to photograph #6. (3RT 389, 393.) Appellant wasthe only person in the photographic display with short hair. Everyoneelse had longer hair. (3RT 393; People’s Exhibit 8.) On May 16, 1998, Fraduie saw appellant at the preliminary hearing. (1CT 139.) Several monthslater, on July 14, 1998, Fraduie observeda live lineupatthe jail with Detective Paiz and the prosecutor. (3RT 387, 401, 511-512.) Fraduie testified that appellant wasin the lineup with two other men,” and Fraduie identified him as the man who had the gun that night. (@RT 387-388; People's Exhibit 9.) This time it did not take "two seconds" to pick appellant out of the lineup. (3RT 388.) Like Mendez, Fraduie testified that at the live lineup he saw the person he had seen in the photographic array, and had previously seen in court 10 Detective Paiz testified that there were six people in the live lineup. (3RT 511-512.) 77 during the preliminary hearing. (3RT 393.) Fraduie indicated on a form that the suspect was #1, and signed and datedit July 14, 1998. (3RT 401-402; People's Exhibit 11.) 4, Fraduie's Identification of Appellant as the Shooter Is Not Substantial, Credible Evidence Respondentdismisses appellant’s detailed argument regarding the unreliability of uncorroborated eyewitness testimony as the basis for a conviction — especially in a capital case — without addressing any of it. (RB 32-34.) Rather than repeat his argumenthere, appellant refers this Court to pages 76-109 of his OpeningBrief. Even the United States Supreme Court has recognized the dangers of mistaken identification and the risk of fatal errors when — as in this case — the witness’ opportunity for observation was insubstantial, and his susceptibility to suggestion great. (United States v. Wade, supra, 388 U.S. 218, 228-229, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149.) This was a stranger identification, based solely upon a single brief observation under extraordinarily stressful conditions. 78 Respondent makesno attemptto counter the extensive research on the reliability problems of eyewitnessidentification appellant has pointed out in his OpeningBrief, or the problemsthat arise whenjuriesare not given access to that information to aid their fact-finding tasks and to disabuse them of myths aboutthereliability of eyewitness testimony.” (See United States v. Brown (D.C.Cir.1972) 461 F.2d 134, 145-146, fn. 1 (conc. & dis. opn.).) Appellant’s arguments, therefore, do not constitute an improperattack on Fraduie’s credibility or an improperre-weighing of the trial evidence. Rather, appellant has established that Fraduie’s uncorroborated eyewitness testimony, underthe circumstancesof this case, and in light of recent scientific research that courts have recognized as legitimate and troubling, is not substantial, credible, reliable evidence sufficient to support appellant’s convictions of the Moreland murder and Fraduie attempted murdercounts. 11 Appellant’s attorney failed to present an expert on eyewitness identification. 79 5. The Evidence WasInsufficient to Establish That The Murder Weapon Was Ever In Appellant's Possession; Therefore, the Location of the Weapon Coupled With Fraduie's Testimony Identifying Appellant as the Man With the Gunis Insufficient to Support Appellant's Conviction (a) Facts Relied Upon bythe Prosecutor Purportedly Connecting the Murder Respondent dismisses - without addressing - appellant’s Weaponto Appellant arguments regarding the lack of evidence to connect appellant to the murder weapon. (RB 33-34.) Instead, respondent again distorts the facts, asserting “appellant returnedto the sceneof the shooting the very next day”that the police “recovered the murder weaponinside a house near where Fraduie had seen appellant standing with therifle over his shoulderjust before the shooting.” (RB 33.) Respondentinaccurately concludes: “Thus, Fraduie’s identification of appellant was corroborated becausehe identified a person who was connected to the area wherethe shooting occurred and the murder weapon was found in a house with appellant’s companion at the time the F.I. card was completed.” (RB 33-34.) 80 The facts are that roughly 24 hours after the Moreland/Fraduie shooting, a police officer contacted appellant on the street near 1315 East Glencoe. (3RT 416, 418.) The officer did not enter any building there, and he could not remember whoelse waspresent. (3RT 417-418.) The officer filled out an F.I. card, on which he wrote that he had contacted a person named Ennis Reed, and that aman named McLaine was with him. (3RT 413, 416; People's Exhibit 12.) At around11:00 or 11:30 that samenight, officers chased a man named Chico McLaineinto a duplex just slightly northwest of the spot on Glencoe Street where Moreland's body was found. (3RT 355-358; People's Exhibit 1; People's Exhibit 6.) A second man, not appellant, was foundin the house but not arrested. (3RT 356-357, 367.) An officer found in a hall closet the rifle later determined to be the murder weaponin the Moreland case. (3RT 357-358, 364-365.) Therifle, the clip and the ammunition had nofingerprints on them. (3RT 368.) Nobody made any attempt to determine wholived at the duplex wherethe rifle was found. (3RT 370.) Like respondent, the prosecutor arguedtherifle was "physical 81 evidence[that] tends to support whatMr. Fraduie said about the events of that night." (€4RT 651.) The prosecutor also argued: "The defendant wasthere the next day. You have the F.I. card. You knowit's him." (4RT 652.) “It's the same guy. The defendant had a gun. Nooneelse did." (4RT 652-653.) The prosecutor’s argumentwasfalse. (b) No Evidence Connected the Gun to Appellant Respondent makes no attempt to address the cases appellant discussed at pages 127-132 of his Opening Brief as to what constitutes sufficient evidence of constructive possession. Existing authority does not supportthe inferential leaps respondentasks this Courtto take. As appellant argued morefully in his Opening Brief, the mere fact that the defendant is present near a weapon does not establish possession.(See People v. Land (1994) 30 Cal.App.4th 220, 223-224, and cases cited therein [receipt of stolen property]; People v. Glass (1975) 44 Cal.App.3d 772, 777 [possession of a controlled substance].) Thereis 12 Trial counsel failed to object to the prosecutor's inaccurate portrayal. (ART 652-653.) 82 no substantial evidence in the record to establish or support an inference that appellant exercised control, or the right to control, the rifle found in the duplex. Respondentignoresthat no witnesstestified to seeing appellant in the duplex where the rifle was found. No witness established any connection between appellant and the duplex, other than he wasstandingon thestreet near the duplex. The evidence offered by the prosecutor could not establish that appellant ever exercised control of, or the right to control, the weapon. (See, e.g., CALJIC No. 12.44.) Therefore, the evidence that appellant was in the vicinity of the duplex where the weapon wasfound, and that the man standing next to him at the time the F.J. card wasfilled out happened to be chased into that duplex on the same evening, does not establish any connection between appellant and the premises where the murder weapon was found, or the weaponitself. Likewise, no inference can reasonably be drawn that the evidence of the rifle corroborates Fraduie's identification of appellant as the shooter — and yetthatis precisely the inference the prosecutor asked the jury to draw, and respondentasks this Court to draw. (4RT 651-653.) 83 6. Onthe State of This Record, the Lack of Evidence Requires Reversal Respondent omits discussion of People v. Blakeslee (1969) 2 Cal.App.3d 831, in which the Court of Appeal overturned a murder conviction based upon circumstantial evidence that was more substantial than that presented here. (See full discussion at pages 129- 131 of Appellant’s Opening Brief.) The Blakeslee Court noted that one factor relevant to the question of whether the evidence wassufficient to inspire confidence in the defendant's guilt was "the absence of evidence we would normally expect to find in a murder prosecution based upon circumstantial evidence. The absence of evidence... may haveas great an impacton the substantiality of a case as any whichis produced, for the absence of evidence which would normally be forthcoming can undermine the solidity of the proof relied on to support a finding of guilt." (Id. at p. 839.) In particular, the Court noted that amongthe evidence that would be considered “central to the charge of murder” would be “evidence to establish a connection between a murder weapon andthe defendant, either tangible evidence 84 such as fingerprints, palm prints, or powder burns, or testimonial evidence linking the defendant in some manner to a weapon, which evidence we do not have.” (Id. at pp. 838- 840.) In the Morelandkilling, there is evidence of a murder weapon, and evidencelinkingthe bullets that killed Moreland to that weapon." The problem respondentignoresis that there is no substantial, credible evidencelinking appellant to that weapon. There werenofingerprints, palm prints or powder burns. The weapon wasfoundin a residence to which appellant was not connected, such that he could be said to have constructive possession of the weapon foundinthecloset of that residence." There is only testimony by Fraduie that he briefly glimpsed a man he initially could not describe — whom helater identified as appellant only after multiple suggestive identification procedures — standing in a group of men, holding a gun thatlooked like the gun designated as People’s Exhibit 5. (3RT 376.) There is no 13 There was, however, a dispute as to the chain of custody of the shell casings presented as evidence in the Moreland case. (See 3RT 551-556.) “'See discussion in section IV.5.(b), supra. 85 eyewitness to the shootingitself. There is no eyewitness whotestified that appellantfired the gun. There is no circumstantial evidence from which the jury could infer motive for this shooting. There is no evidenceof flight that would support a finding of consciousness of guilt. (See People v. Vu (2006) 143 Cal.App.4th 1009, 1030.) Respondentalso ignores appellant’s argumenthis conviction has less evidenceto supportit than did the defendant’s conviction in People v. Trevino (1985) 39 Cal.3d 667. In that case, this Court held there was no evidence of a motive for murderon thepart of the defendant, who was a friend of the victim; the conviction rested entirely on an equivocal eyewitness identification and a fingerprint from the defendantin the victim's apartment, where he had previously been a guest. (Id. at pp. 667, 676, 696-697.) Here, the evidence of motive was even weaker, as there was norelationship between appellant and Moreland or Fraduie that might have provided a motive, and no evidenceof any other motive, such as robbery. There was no physical evidence whatsoever to link appellant to the shooting. All the prosecution could offer was an identification made by a witness who 86 wasa stranger to appellant, who was drunk andhigh on drugs, had little opportunity to observe the man he saw holding a gun,at night, illuminated only by a nearbystreetlight, standing in a group of men, did not volunteer his observations to the authorities, and was repeatedly subjected to suggestive identification procedures. A reasonablejury could not find beyond a reasonable doubtthat the circumstantial evidence proved defendant's guilt.’ The convictions mustbe reversed, and the death penalty vacated. is Because each of the cases is so weak individually, it is highly likely that, had the Tacos el Unicos case and the Moreland/Fraduie case been tried separately, the jury would not have returned guilty verdicts in either case. Unfortunately, trial counsel failed to move to sever them. 87 IV. APPELLANT ESTABLISHED A PRIMA FACIE CLAIM OF RACIAL DISCRIMINATION DURING VOIR DIRE OF THE GUILT PHASEJURY, ENTITLING HIM TO A REVERSAL Respondentdisagrees there was Wheeler/Batson error. (RB 34-44.) Respondentis wrong. A. Respondent Omits Governing Law Respondent omits some of the law governing Wheeler/Batson error. A prosecutor's use of peremptorychallengesto strike prospective jurors because oftheir race or genderviolates both the federal andstate constitutions, specifically the equal protection clause of the Fifth and Fourteenth Amendmentsto the United States Constitution, and violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community underarticle I, § 16 of the California Constitution.”° (Batson v. Kentucky (1986) 476 U.S.79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69; J.E.B. v. Alabama ex rel. T.B. (1994) 511 US. 127, 130-131, 128 L.Ed.2d 89, 114 S.Ct. 1419; People v. Wheeler (1978) 22 16 In Powers v. Ohio (1991) 499 U.S. 400, 402, the United States Supreme Court eliminated the requirement that the defendant and the stricken juror be of the samerace. 88 Cal.3d 258, 276-277, People v. Griffin (2004) 33 Cal.4th 536, 553.) Respondentfails to address someof the cases the United States Supreme Court decided subsequent to 1999 — the year appellant was convicted -- that clarify the duties of trial and state appellate courts in assessing “Wheeler/Batson” motions, most notably Miller-El v. Dretke (2005) 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196. Respondentalso ignores United States v. Collins (9 Cir. 2009) 551 F.3d 914, 919, which held that a prima facie showing for a challenge based on an impermissible ground is a burden of production, not a burden of persuasion. (Ibid.) B. Respondent Omits or Distorts Material Facts During guilt phase jury selection, the first eighteen jurors to go into the jury box were Gladys Beard[Seat #1], a Caucasian female; Juror number5645[Seat #2], a Caucasian female; Juror number1450 [Seat #3], an Asian/Filipino male; Corinne Tate [Seat #4], a Caucasian female; Juror number2801[Seat #5], a Caucasian male; Juror number 6761 [Seat #6], an African-American female; Janice Clark [Seat #7], an African-American female; Jacqueline Wilson [Seat #8], a Caucasian 89 female; Kevin Wees[Seat #9], a Caucasian male; Bert Abron [Seat #10], an African-American male; Juror number 1923 [Seat #11], an Hispanic male; Billie Lawrence [Seat #12], an African-American female; Nickey Wright[Seat #13], an African-American male, Mary Cole[Seat #14], an African-American female, Betzaida Campizta [Seat #15], an Hispanic female; Juror number 0744 [Seat #16], a Caucasian female, David Wilcox [Seat #17], a Caucasian male; and Juror number 9937 [Seat #18], a Caucasian male. (3CT 692, 1016; 1772; 1808; 1823; 1861; 1879; 2149; 2275; 2311; 2438; 2528; 2546; 2565; 2601, 2619, 2673; Supplemental CTIII 99; 2RT 276-277.) Duringthe first round of peremptory challenges, the prosecutor excused Corinne Tate [Caucasian female], Bert Abron [African- American male], Billie Lawrence [African-American female], Betzaida Camptiza [Hispanic female], and Janice Clark [African-American female]. (4CT 1014; 7CT 1808, 1861, 1879; 9CT 2438; Supplemental CT III 103-105; 2RT 290-292.) During the second round of peremptory challenges, the prosecutor excused Bruno Blanco [Hispanic male], Nickey Wright [African-American male], and Mary Cole [African- 90 American female]. (CT 692; 7CT 1772; 8CT 2185; Supplemental CTIII 107; 2RT 296.) After the Wheeler objection was heard and deniedfor failure to demonstrate a prima facie case, the prosecutor exercised peremptory challenges against two more African-American women - LaShawn Stringer and Annie Fortson. (7CT 2003-2005; 9CT 2363-2365; 2RT 308, 314.) Respondent omits the following facts. Of the twelve jurors originally seated on the guilt phase jury, three were African-American, five were Caucasian, one was Hispanic, and three were Asian/other. (9CT 2528, 2546, 2565, 2583; 10CT 2601, 2619, 2637, 2655, 2673, 2691, 2709, 2727; Supp. CT III 196.) Just before the guilt phase jury was instructed, one of the African-American jurors, juror number4 [8060], wasreplaced by an Hispanicjuror, [5838]. (2CT 474; 10CT 2746; Supp. CT WI, 196; 3RT 598-600.) 91 C. Appellant Made a Prima Facie Case that the Prosecutor Was Exercising Peremptory Challenges to Remove Prospective Jurors on the Basis of Group Bias 1. Respondent Concedes The Trial Court Erred in Applying the Wrong Standard For Determining a Prima Facie Case Respondent concedes the trial court applied an incorrect standard in determining appellant had failed to make a primafacie case. (RB 37-38.) Respondent agrees that when this Court confronts a pre- Johnsontrial court finding of no primafacie case, and the record does not showapplication of the correct legal standard, this Court must review the record independently to apply the Supreme Court’s standard and resolve the legal question whetherthe record supports an inference that the prosecutor excused a juror on a prohibited discriminatory basis. (RB 38; see People v. Bonilla (2008) 41 Cal.4th 313,341,citing People v. Bell (2007) 40 Cal.4th 582, 596; accord, People v. Williams (2006) 40 Cal.4th 287, 310.) This means appellate courts may not apply a deferential standardofreviewto a trial court’s factual findings, which had only to satisfy a “substantial evidence” requirement. (See People v. Huggins (2006) 38 Cal.4th 175, 227-228; People v. Avila (2006) 38 Cal.4th 491, 541.) 92 Respondentfails to acknowledge that appellant is not required to establish a “pattern” of exclusion of membersof a cognizable group. The state and federal constitutions are violated by the improperly- motivated removal of even a single juror belonging to a cognizable group. (People v. Bell, supra, 40 Cal.4th 582, 598, fn. 3.) 2. Appellant Made a Prima Facie Showing of Discriminatory Purpose By producing evidence sufficient to permit the trial judge to draw an inferencethat discrimination occurred, appellantmade a prima facie showing the prosecutor was exercising peremptory challenges to removeprospective jurors solely on the basis of groupbias. (Id. at p. 2417.) The trial court’s error in applying the “strong likelihood” standard requires that the prima facie case be reevaluated. (Ibid.) (a) The Presence of Two African-Americans on The Jury That Decided the Guilt Phaseis Irrelevant To this Court’s Inquiry Respondentargues,first, that “the presenceof three blacks on the jury is an indication that the prosecutor’s peremptory challenges were not based on race discrimination.” (RB 38-39.) This “factual” assertion 93 is inaccurate. Of the 42 African-American panel members, three were seated as jurors, but only two deliberated on the jury — Juror No. 6 and Juror No. 4.'7 (1CT 196; 9CT 2583; 10CT 2619; 3RT 594-600.) Respondentrelies upon People v. Lewis (2008) 43 Cal.4th 415, 480, People v. Huggins (2006) 38 Cal.4th 491, 556, and People v. Avila (2006) 38 Cal.4th 491, 556, in support of this argument. Neither! Lewis nor Huggins concerneda trial court’s failure to find a prima facie showing, but instead addressed third-stage Batson issues, where this Court evaluated the prosecutor’s stated reasonsfor exercising the peremptory challenges. Lewis and Huggins, therefore, are irrelevant to this Court’s determination whether appellant made a prima facie showing of discriminatory purpose. Avila, while somewhat more complicated, also does not support respondent's position. In that case, three co-defendants weretried on capital murder charges. Duringjury selection, defendant Richard Avila 17 On June 22, 1999, just before the jury was instructed, Juror No. 4— an African-American woman — wasreplaced by thefirst alternate, an Hispanic male. (2CT 474; 3RT 598-600.) 94 madea series of Wheeler motions challenging the prosecutor's use of peremptory challenges against African-American and Hispanic prospective jurors. Co-defendant Johnny Avila joined in some of Richard’s motions. Co-defendant Spradlin also made one motion under Wheeler, in which Johnny Avila joined. The trial court denied each motion. (People v. Avila, supra, 38 Cal. 4th 491, 540.) First, the Avila Court’s discussion of the number of African- Americans ultimately seated on the jury must be read in the context of the Avila Court’s holding that, when a party makes a Wheeler motion claiming discriminatory use of peremptory challenges to prospective jurors, the issue is not whether there is a pattern of systematic exclusion; rather, the issue is whethera particular prospective juror has been challenged because of group bias. (People v. Avila, supra, 38 Cal.4th 491, 549.) To say that any racial animus on thepart of the prosecutoris somehow “cured,” negated or excused by the subsequent seating of a couple of African-American jurors on the jury would eviscerate the rights of the African-American jurors challengedprior to the Batson/Wheeler motion. (United States v. Battle (8th Cir.1987) 836 95 F.2d 1084, 1086 [“[W]e emphasize that under Batson, the striking of a single African-American juror for racial reasons violates the equal protection clause, even thoughother black jurors are seated, and even whenthereare valid reasonsfor the striking of some black jurors.”].) Moreover, a prosecutor who intentionally discriminates against a prospective juror on the basis of race can find no refuge in having accepted other venirepersonsof that race for the jury. (See Lancasterv. Adams (6th Cir.2003) 324 F.3d 423, 434 [Where purposeful discrimination has occurred, to concludethat the subsequentselection of an African-American juror can somehow purge the taint of a prosecutor's impermissible use of a peremptory strike to exclude a venire memberonthe basis of race confoundsthe central teachings of Batson], cert. denied, ---U.S.----, 124 S.Ct. 535, 157 L.Ed.2d 409 (2003); accord, Holloway v. Horn (3d Cir. 2004) 355 F.3d 707, 720.) Second, it should be obviousthat the trial court could not have known an African-American juror would ultimately deliberate on appellant’s jury at the time the court was called upon to determine whetherappellant had made an adequate primafacie showing of group 96 bias. The presenceof an African-American on the jury was not factor the trial court could have considered at the time the court ruled on appellant’s Batson/Wheeler objection. Therefore, the ultimate composition of the jury as sworn should not be permitted to defeat appellant’s claim. Whena trial court denies a Wheeler motion without finding a primafacie case of group bias, as happenedin this case, the reviewing court considers the entire record of voir dire to evaluatethetrial court’s ruling. (People v. Howard, supra, 1 Cal.4th 1132, 1155; People v. Sanders (1990) 51 Cal.3d 471, 498.) The appellate court's review ofa finding of no prima facie case is not limited to the argument of counsel upon bringing the Batson/Wheeler motion becauseother circumstances might support the findingof a primafacie case in retrospect. (People v. Howard, supra, 1 Cal.4th 1132, at p. 1155.) Indeed, Wheeler emphasized that such rulings require trial judges to consider “all the circumstances of the case" (People v. Wheeler, supra, 22 Cal.3d 258, at 280) andcall upon judges' powersof observation, their understandingoftrial techniques, and their broad judicial experience." (People v. Bittaker (1989) 48 Cal.3d 97 1046, 1092, quoting People v. Wheeler, supra, 22 Cal.3d 258, at 281.) Some courts, however, seem to have conflated the first and third stages of Batson/Wheeler hearingsin finding the ultimate composition of the jury is relevantto a first-stage Batson/Wheeler analysis, and instead of using the facts to support a finding of a prima facie case in retrospect per Howard, they have used such facts to justify the prosecutor’s peremptory challenges. Respondent urges this erroneous approach. Appellant asks this Court not to adopt that approach for the reasons stated above. (b) Respondent Entirely Fails to Address the Statistical Analysis Supporting Appellant’s Argument That The Prosecutor Demonstrated Group Bias In Exercising Peremptory Challenges To African- American Venirepersons Respondentdoesnot fully addressthe recordin its discussion of the prosecutor’s challenges to the African-American prospective jurors. (RB 39-44.) Respondentavoids a complete discussion of the facts by failing to address appellant’s analysis of the statistical disparity that demonstrates groupbiasin this case, focusing instead on the individual 98 characteristics of the veniremen the prosecutor excused. Group bias may be demonstrated by a showingthat a party "has struck mostor all of the members of the identified group from the venire, or has used a disproportionate number of his [or her] peremptories against the group." (People v. Wheeler, supra, 22 Cal.3d 258, at 280.) The jury venire panel for the guilt phase in this case consisted of a total of 122 people, including 42 African-Americans [35% of the total panel]; 49 Caucasians [40% ofthe total panel]; 16 Hispanics [13% of the total panel]; and 15 Asians or other race [12% of the total panel]. (2CT 434-449, 458-461.) Of the 42 African-American panel members, two wereseated as jurors, but only one deliberated on the jury —Juror No. 6. (1CT 196; 9CT 2583; 10CT 2619; 3RT 594-600.) There were no African-American alternate jurors. (See 1CT 196.) At the time the Wheeler objection was made, the prosecutor had exercised a total of eight peremptory challenges (2RT 290-297), and had used his peremptory strikes overall to exclude 6 of the eligible African-American venire members, or roughly 15% ofthetotal eligible African-American venire members and 75% of his peremptorystrikes 99 exercised to that point. By contrast, the prosecution used only three of his peremptory challenges overall to remove Caucasian venire members, or roughly 6% of the total Caucasian venire members. Of the twelve jurors who decided the guilt phase, one, or 6% was African-American; six, or 50%, were Caucasian; two, or 12.5%, were Hispanic; and three, or 25%, were Asian or other. Although African-Americans were 35% of the total panel, they wereonly 6% of the seated jury, and although Caucasians werejust 40 % of the total panel, they were 50% of the jury who decidedthecase. "Happenstance is unlikely to produce this disparity." (Muller-El v. Cockrell, 537 U.S. 322, at p. 342, 123 S.Ct. 1029.) More recently, the Ninth Circuit has held that, because a defendant need not establish a primafacie case by a preponderance of the evidence, but need only raise an inference of discrimination, "a defendant can make a prima facie showing based ona statistical disparity alone." (Williams v. Runnells (9th Cir. 2006) 432 F.3d 1102, 1107.) Thus, in Williams v. Runnells, supra, the Ninth Circuit observed that the defendant had madea primafacie case by showing that the prosecutor had used three 100 of his first four peremptory challenges to strike African-American prospective jurors, where there were only four African-Americans on the panel.’® (Ibid.) The Ninth Circuit regularly finds a prima facie case when the prosecutionstrikes two or more minority prospective jurors, and leaves a lesser numberof, or no, minority prospective jurors on the jury. (See McClain v. Prunty (9th Cir. 2000) 217 F.3d 1209 [prima facie case when prosecution struck all three African-American prospective jurors)]; Stubbs v. Gomez (9th Cir. 1999) 189 F.3d 1099 [prima facie case when prosecutorstruckall three African-American jurors]; United States v. Chinchilla (9th Cir. 1989) 874 F.2d 695, 698 [prosecutor struck the only two Hispanics].) 18 The penalty phaseretrial jury selection proceedingsin this case, during which no Wheeler objection wasraised, indicate unfettered bias on the part of the prosecutor. That panel consisted of 162 individuals: 56 Blacks (35 %); 54 Caucasians (33 %); 26 Asians/other (16 %), and 26 Hispanics (16 %). Ten of the first eleven peremptory challenges by the prosecutor to the penalty phase panelists were to Blacks — that is over 90 %. Three Blacks sat on the jury, comprising 25% of the jury, where Blacks were 35% of the venire. By contrast, eight Caucasianssat on the jury, comprising 67% of the jury, where Caucasians were only 33 % of the venire. 101 Other circuit courts are in accord. (See United States v. (James Lamont) Johnson (8th Cir. 1989) 873 F.2d 1137, 1139 ["inference” of discrimination where prosecution "struck black veniremen at a disproportionate rate and struck Blacks who did not respond during voir dire but did not strike Caucasians whosimilarly did not respond"); United States v. Chalan (10th Cir. 1989) 812 F.2d 1302, 1312 [prima facie case where governmentstruckthree of four Indians for cause, and then struck last Indian peremptorily; "If all the jurors of a defendant's race are excluded from the jury, we believe that there is a substantial risk that the governmentexcluded the jurors becauseof their race."].) Thefact that there was one African-American on appellant's jury in no way undercuts his claim that he was deprived of a jury of his peers. "That one black served on the jury, while a significant fact that may be considered as circumstantial evidence, does notitself bar a finding of racial discrimination." (Bui v. Haley (4th Cir. 2003) 321 F.3d 1304, 1318; see also People v. Davis (2009) 46 Cal.4th 539, 583.) Thus, the record as a whole strongly supports a prima facie finding under Batson and Wheeler, andthetrial court erred by denying 102 appellant's motion. (c) When the Prosecutor Has Not Stated His Reasons for Challenging Minority Jurors, An Appellate Court Should Not be Permitted to Affirm the Judgment Based on Speculation Regarding Nondiscriminatory Reasonsthe Prosecutor Might Have Relied Onto Challenge the Jurors Instead of taking the approach that upholdsthe intent of Batson and Wheeler, respondent advocates for a myopic approachthatisolates the characteristics of individual veniremen andjustifies challenges by speculating as to reasons a prosecutor might haveutilized at the third stage of a Batson/Wheeler hearing. Respondent speculates the prosecutor might have excused prospective juror Abron due to Abron’s brother’s “bad” or “negative” experience with law enforcement (RB 39), and Abron’s unexplained role in a 1992 hungjury. (RB 40.) Respondentalso cites prospective juror Lawrence’s hesitation over the death penalty (RB 40-41), and prospective Juror Clark’s husband’s conviction of a drug offense in 1977, despite Clark’s opinion her husbandhadbeentreatedfairly. (RB 41-42.) Respondentasserts prospective juror Wright was “personally 103 familiar” with Tacos el Unicos, the scene of one of the murdersin this case, so the prosecutor “could have” reasonably concluded Wright might be biased in evaluating the evidencerelated to the Mendez counts. (RB 42.) Respondentalso points to Wright’s commentin his questionnaire “that a defendant in a criminal case had to prove his innocence,” concluding a “disagreement as to the burden of proof in a criminal trial” could have been a concern for the prosecutor. (RB 42.) Respondent cites prospective juror Cole’s husband’s arrest for an unspecified crime (RB 42), and Cole’s ownershipof a firearm. (RB 43.) This Court has held that when a defendant argues on appealthat the trial court erred in failing to find a primafacie case of groupbias, the appellate court must examinethe entire record of voir dire for evidence to support the trial court's ruling, and will affirm where the record suggests possible nondiscriminatory grounds upon which the prosecutor might reasonably have challenged the jurors in question. (E.g., People v. Howard, supra, 1 Cal.4th 1132, 1155; People v. Guerra (2006) 37 Cal.4th 1067, 1101.) Respondent engagesinjust such an examination of the record in appellant's case, listing nondiscriminatory reasons why | 104 the prosecutor might have challenged the minority jurors. (RB 39-43.) However,in Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410, 162 L.Ed.2d 129] and Miller-El v. Dretke, supra, 545 U.S. 231 [125 S.Ct. 2317, 162 L.Ed.2d 196] — the United States Supreme Court madeit clearthat this approachviolates the United States Constitution. In Johnson the SupremeCourtstated: “The Batson frameworkis designed to produceactual answers to suspicions and inferences that discrimination may have infected the jury selection process. The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answercan be obtained by asking a simple question.” (Johnson v. California, supra, 545 U.S. at p. 172 [citation omitted].) Immediately after makingthis statement the Supreme Court quoted Paulino v. Castro (9" Cir. 2004) 371 F.3d 1083, 1090 [‘[I]t does not matter that the prosecutor might have had goodreasons... [w]hat matters is the real reason they werestricken’ (emphasis deleted)] and Holloway v. Horn, supra, 355 F.3d 707, 725 [speculation ‘does notaid our inquiry into the reasons the prosecutor actually harbored’ for a peremptory strike].” 105 (Johnson v. California, supra, 545 U.S. at p. 172.) In Paulino, the trial court offered, sua sponte, “its speculation as to why the prosecutor may have struck the five potential jurors in question” and found noprima facie case. (Id. at pp. 1089-1090.) The Ninth Circuit foundthatthetrial court’s conjuring of possible reasons to challenge the jurors was no substitute for the prosecutor's actual reasonsfor exercising the challenges. (Id. at p. 1090.) In Holloway, the state defended the challenge of a juror by looking at the transcriptof the voir dire for information that might have motivated the challenge beyond the reasonsstated in the record. (Holloway v. Horn, supra, 355 F.3d at p. 725.) The Third Circuit ruled that when the prosecutorstated his reasons, review focusessolely on the reasonsstated.(/bid.) Johnson, Paulino and Holloway prohibit a court from scouring the record for possible reasons for a challenge whenthe prosecutor has stated no such reasons, and from scouring the record for additional reasons for a challenge whenthe prosecutor has stated his reasons. (Accord, People v. Harris (2013) 57 Cal.4th 804, 863-891; Lui, J., concurring opn.) Miller-El v. Dretke, supra, 545 U.S. 231 [125 S.Ct 2317, 162 L.Ed.2d 106 196] also demonstrates that the California practice of having the appellate court scour the record for reasons that might havejustified the disputed peremptory challenges violates the United States Constitution. There, the United States Supreme Court held it is the obligation of the prosecutor to state the reasons for the challenge, and that a “Batson challenge doesnotcall for a mere exercisein thinking up any rationalbasis. If the stated reason does not hold up,its pretextual significance doesnotfade becausea trial judge, or an appeals court, can imagine a reason that might not have been shownupasfalse.”(Id. at p. 252.) Miller-El did not addresserrorin a ruling a defendant had not showna primafacie case-- the first step of a Batson analysis — but rather the reasons for the challenges —- step two of a Batson analysis. However, Miller-El's rationale applies to a case in which error occursat the first step. The importantthingat all stages of a Batson analysisis the prosecutor's actual reasons for the challenge, not possibly valid reasons that appear in the record without any showing that the prosecutoractually relied on them. California's practice of scouring the record for possible 107 nondiscriminatory reasons the prosecutor might have usedasa basis for challenging the jurors, and affirming the conviction based on these reasons whenthetrial court erroneously fails to find that the defendant has stated a primafacie case, is contrary to Johnson, Miller-El, Paulino and Holloway. Under the California practice, the appellate court does not know whythe prosecutor challenged the jurors, but attributes to the prosecutor reasonsthat the evidence might support. Johnson, however, mandatesthat the determinative fact is the prosecutor's actual reason for exercising the challenges, not the appellate court's speculation about the prosecutor's reasons. The Ninth Circuit has held that the California practice, when reviewing a trial court ruling finding no prima facie case of discrimination, of seeing “whether the record could support race-neutral grounds for the prosecutor's peremptory challenges” is improper under Johnson and Miller-El and does not adequately protect a defendant's right under the equal protection clause of the Fourteenth Amendment. (Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1108.) In light of Runnels, this Court must reject respondent’s argument 108 offering up speculation as to the prosecutor’s reasonsfor challenging the minority jurors. Another reason to reject respondent’s argument is the inconsistencyin the way this Court scours the record when defendant contends the trial court erred in failing to find a prima facie case of discrimination. As stated above, when a defendantchallengesa trial court's ruling finding that the defendantfailed to make a primafacie case of discrimination, this Court has required California appellate courts to search the entire record and to affirm if the record contains any evidence showing somereason whya prosecutor might challenge the juror in question. But in conducting this review, this Court has established a rule that requires the appellate courts to ignore relevant and important evidence bearing on whetherthe prosecutor's challenges of minority jurors were based on discrimination. This important evidence relates to comparative juror analysis -- seeing whether the prosecutor challenged non-minority jurors who shared the same characteristics that the appellate court concludes might have motivated the prosecutorto challenge the minority jurors. 109 This Court has held that comparative juror analysis does not apply to the review of whetherthetrial court erred in finding there was no primafacie case of discrimination. (People v. Carasi (2008) 44 Cal.4th 1263, 1295; But see, People v. Harris, supra, 57 Cal.4th 804, 859-863; Kennard, J., concurring opinion [repudiating former position that comparative analysis was inappropriate at first level Batson-Wheeler challenge: ““Wisdom too often never comes, and so one ought not to reject it merely because it comeslate.’”] ) The Court explained that the rationalefor this resultis that “it is not necessary or appropriate for us to speculate as to the reasons that may have motivated the prosecutor's challenges.” (Ibid.) Yet when the Court upholdsa trial court's finding that there was no prima facie case by searching the record for reasons that might have promptedthe prosecutor's challenges, it does nothing other than “speculate as to the reasons that may have motivated the prosecutor's challenges.” ([bid.) This is a double standard. When reviewinga trial court’s ruling resolving a challenge at the prima facie case stage, the Court speculates in order to come up with nondiscriminatory reasons that might have motivated the prosecutor's 110 challenges. But the Court has refused, on the groundof speculation,to determine if the prosecutor failed to exercise challenges to non-minority jurors who shared these characteristics. This practice violates consistency and fairness and renders California case law inconsistent with the United States Supreme Court's holding in Johnson. (d) Respondent Dismisses Appellant’s Comparative Analysis of the Challenged Veniremen and the Seated Jurors Without AddressingIt Respondent dismisses, without addressing, appellant's comparative analysis of the challenged veniremen and the seated jurors. (RB 44.) In addition to thestatistical showing that supports an inference of improper motive in the prosecution's exercise of peremptory challenges, side-by-side comparisons of some African-American venire panelists who were struck and non-African-American panelists allowedto serve provide further evidence supporting appellant's claim that the trial court erredin failing to find a primafacie case. (Miller-El v. Dretke, supra, 545 U.S. 231, 232,125 S.Ct. 2317, 2319.) Ifa prosecutor's 111 proffered reason for striking a African-American panelist appliesjust as well to an otherwise-similar non-African-American whois permitted to serve, that is evidence tending to prove purposeful discrimination. (Cf. Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 147 [in employment discrimination cases, "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidencethat is probative of intentional discrimination, and it may be quite persuasive"). Because the entire record may be considered in reviewing a finding of no prima facie case (People v. Howard, supra, 1 Cal.4th 1132, 1155; People v. Sanders, supra, 51 Cal.3d 471, 498), such a comparisonis relevant here. (People v. Harris, supra, 57 Cal.4th 804, 863-891; Lui, J., concurring opn.) (i) Characteristics of The Challenged Veniremen Appellant has set forth extensive description of the comparative attributes of the challenge African-American jurors at AOB pp. 143-150, andwill not repeat them here. Suffice to say that respondent does not accept first-stage Batson-Wheeler comparative analysis and_ has 112 consequently not addressed appellant’s argument. (ii) Comparison of Challenged Panelists with Non-African-American Jurors Again, appellant has provided an extensive comparison of characteristics between struck and non-struck jurors in the AOBat pp. 150-154, and will not repeat the details here. Suffice to say that there were manysimilar answers and characteristics which suggesta racially discriminatory intentin the striking of the six African-Americanjurors. Because respondentdoesnotacceptfirst stage comparative analysis, respondenthasnot seriously addressed appellant’s argument. Citing People v. Taylor (2010) 48 Cal.4th 574, 616-617 and Peoplev. Williams, supra, 40 Cal.4th 287, 312-313, respondent argues California courts have rejected comparative analysis at the first stage of a Batson/Wheeler analysis. (RB 44.) Respondent’s argumentis contrary to federal law and this Court shouldreject it. (Miller-El v. Dretke, supra, 545 U.S. 231, 232,125 S.Ct. 2317, 2319; cf. Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 147 [in employment discrimination cases, '[p]roof that the defendant's explanation is unworthyof credence 113 is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive’']). D. This Court Must Reverse Appellant’s Conviction The trial court may have believed no prima facie case was established because three African-Americans remained in the panelat the time of the challenges. However, the fact that some African- Americans remained on the panel does notestablish that others were not improperly excluded. A single discriminatory exclusion violates a defendant's right to a representative jury. (People v. Fuentes (1991) 54 Cal.3d 707, 716, fn. 4.) Hadthetrial court instead consideredthe factors discussed in Wheeler and Batson, it would have foundan inference that the prosecutor used that practice to exclude the venire-persons from the petit jury on accountof their race. (Johnson, supra, 545 U.S. 162, 125 S.Ct. 2410, 2416-2417.) Consideringall of the evidence of the relevant circumstances,it is apparentthat a primafacie showing was madeandthat the prosecutor should have been compelled to state his reasons for excluding minorities. The trial court abdicated its duties under Wheeler and 114 Batson by denying the motion without requiring the prosecutor to explain his challenges. (See People v. Snow (1987) 44 Cal.3d 216, 226, and People v. Hall (1983) 35 Cal.3d 161, 168.) Asstated in the AOB,the neteffect of the trial court’s error was a jury that included one African-American woman, two jurors who believed a criminal defendant must prove his innocence, and from which mostof appellant’s peers who wereeligible for jury service had been peremptorily eliminated. Thetrial court’s failure to find a prima facie case regarding the prosecutor's peremptory challenge of prospective jurors Abron, Clark, Lawrence, Cole, and/or Wright was prejudicial error. The court madeits ruling during a time when the standard applied in California courts for finding a primafacie case was impermissibly high. Because the improper dismissal of even one prospective juror whois otherwisefit to serveis reversible error perse, appellantis entitled to a newtrial. 115 V. THE VERSION OF CALJIC NO.2.92 GIVEN IN THIS CASE VIOLATED APPELLANT’S RIGHTS TO DUE PROCESS, TO MEANINGFULLY PRESENT A DEFENSE, TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AND TO RELIABLE GUILT AND PENALTY VERDICTS, WHERE APPELLANT’S CONVICTION DEPENDED UPON UNCORROBORATED EYEWITNESSIDENTIFICATIONS Respondent disagrees that the trial court erred by giving an incomplete version of CALJIC 2.92. Respondentis wrong. The court's striking of the two requested phrases wasreversible error. A. The Language on Prior Contacts and Capacity to Make an Identification Were Necessary to the Defense Case and Should Not Have Been Stricken Respondent glosses over the central fact that appellant was convicted of two separate crimes solely upon uncorroborated eyewitness identifications rendered by a single victim to each crime who were strangers to the perpetrator, who had very limited opportunity to observe under stressful conditions, and — in the Moreland and Fraduie shooting — a witness whowasintoxicated. 1. Prior Contacts Language Citing People v. Burney (2009) 47 Cal.4th 203, 246, respondent argues the court properly omitted the two disputed factors from 116 CALJIC No. 2.92 because they were “not supported by substantial evidence.” (RB 47.) Burney is not particularly helpful here becauseit does not address CALJIC No. 2.92. The use note for CALJIC No.2.92 states, “[t]his instruction (or a comparable one) should be given when requested in a case in whichidentification is a crucial issue andthere is no substantial corroborative evidence. (People v. Wright [1988], 45 Cal.3d 1126, 1143, 248 Cal.Rptr. 600, 609, 755 P.2d 1049, 1059 (1988).)” (CALJIC No. 2.92 [emphasis in original].) There is no question whether 2.92 was supported by substantial evidence, because the accuracyandreliability of the eyewitnessidentifications were key to the prosecution case. The language at issue was “[w]hether the witness had prior contacts with the alleged perpetrator.” (See CALJIC No.2.92.) Respondent argues, “[i]n the absence of any evidence,let alone substantial evidence, of prior contact with appellant, the trial court did not err in striking the “prior contacts” factor from CALJIC No.2.92.” (RB 47.) The flaw in this argumentis that a defendantis not required to prove the eyewitnesshadprior contact with the perpetrator in order to justify giving that part of CALJIC No. 2.92. The phase only 117 addresses “whether” the witness had prior contacts — in other words, whether the witness did or did not have prior contacts — not that a witness affirmatively can establish a prior relationship with the perpetrator. That part of the instruction is therefore appropriately given where the evidence does not indicate any relationship between the witness and the perpetrator. The prosecutor did not oppose leaving the languagein the instruction. (RT 559-560.) The court arbitrarily refused to giveit. In Wright, the Supreme Court held CALJIC No.2.92 “should be given ... ina case in which identificationis a crucial issue....” (People v. Wright, supra, 45 Cal.3d at p. 1144.) Respondentrefers to the omitted portionsof 2.92 “pinpoint” instructions (RB 49), but that designation is not quite accurate. This Court has generally approved giving standard instructions concerning eyewitness identification factors, and both of the omitted factors were includedinthe standardinstruction. (Ibid.; see People v. Martinez (1987) 191 Cal.App.3d 1372, 1383.) On closing, defense counsel argued to the jury the eyewitness identifications were inherently unreliable in view of the conflicting 118 eyewitness identification testimony, the conditions under which the witnesses observed the perpetrator, and the suggestive identification procedures. (4RT 672-685.) Defense counsel also argued Fraduie had been drinkingall day, had taken drugs, and did not see anyonefire a weapon. (4RT 672-674.) Defense counselfailed to mention the lack of prior contacts, or that the witnesses were strangers to the people they identified as the perpetrators. Thus, the jury was never asked to consider the lack of prior contacts, whether by wayof ajury instruction or argumentby counsel. Alternatively —- and particularly as to the Moreland/Fraduie counts — Fraduie or Mendez might have identified appellant, not becausethe identification was correct, but because they may have seen appellant aroundthe neighborhood and notrealized that was why they recognized him when shownhis photograph. The evidence suggests appellant knew people in the neighborhood where Moreland wasshot, and he spent time there. (See 3RT 376, 416, 418.) Fraduie was in the same neighborhoodor vicinity over time, as his friend Moreland lived and worked in the area (3RT 374, 391), and it appears that Mendez and 119 his wife shopped in that neighborhood for food when they were at work. (3RT 461-462.) There is a real possibility Fraudie or Mendez recognized appellant from those other occasions and did not consciously recall seeing him. The jury, therefore, needed to be instructed about "prior contacts” to accountfor this possibility. The fact there was no "evidence"of prior contacts, or that the witnesses did not "recall" prior contacts does not diminish the necessity for the instruction. Itis altogether possible the witnesses had seen appellant before in the neighborhood and picked the only familiar face in the lineup. This is another reason whythe jury should have beeninstructed in this language. The language defense counsel requested wasstandard language routinely included in CALJIC No.2.92, not a modification. The rejected factors were warranted by the evidence. Therefore, the trial court abusedits discretion and improperly struck this part of the instruction. 2. The Incapacity Language Respondent dismisses appellant’s argument regarding witness incapacity, arguing “there was no evidence presented at trial that | 120 Fraduie lacked capacity to make an eyewitnessidentification.” (RB 48.) The partof the instruction the court refused to give was the language, “The witness’ capacity to make an identification.” (CALJIC No.2.92.) It seemsself evidentthat intoxication will affect a person’s "capacity to mn make an identification.” For that reason, the trial court's ruling was arbitrary and counter to commonunderstanding. Respondent minimizes the extent of Fraduie’s intoxication, arguing “Fraduie wasfully capable of careful observations and well- awareof his surroundingsas evidenceby his detailed description of the shooting incident.” (3RT 372-399.) Fradiue testified he spent the evening with his friend Paul Moreland, starting at about 5 that afternoon, and had “a few drinks”at his uncle’s house. (RT 371-373.) Fraduie could not recall how manydrinks they had, and he denied that he and Moreland had consumed any drugs. (3RT 373.) On cross examination, however, Fraduie admitted to drinking Olde English 800 Maltliquor “half a day,” on the day of the shooting. Moreover, he was impeached with his preliminary hearing testimony that he was drinking all day. (3RT 393-394, 398.) Fraduie drank until nearly 11 121 p.m., and felt the effects of the alcohol “somewhat.” (3RT 398-399.) Whileat first Fraduie denied being underthe influence of drugs that night, he later admitted he had “smoked little weed.” (3RT 399.) Moreover, Moreland's autopsy revealed that he had ingested alcohol, cocaine and phencyclidine (PCP) in the hours preceding his death. (3RT 546-549.) This evidence supports an inference Fraduie, who spent many hours leading up to the murder in Moreland’s presence, consumed morealcohol and drugs than he admitted. Given this evidenceof Fraduie’s level of intoxication, the jury could reasonably have drawn negative inferences as to his capacity to perceive, recall and identify the shooter. Respondentargues, “[a]side from Fraduie’s own testimony that he had been drinkingprior to the shooting, there was no other evidence presented to support an argument that Fraduie lacked any legal capacity to identify the shooter.” (RB 48.) Since it is unclear what respondent meansby “legal capacity,” it is necessary to discuss here what“capacity” means. If a witness does not have the mental capacity to observe and remember, the witness does not have “personal 122 knowledge”in the sense of Evidence Code section 702. Respondent ignores the requirement that a witness have the mental capacity to perceive, recollect and testify and that this distinct requirementis subsumedin the requirement of Evidence Codesection 702 that the witness have personal knowledge. (People v. Anderson (2001) 25 Cal.4th 543, 573.) The capacity to perceive, recollect and testify to the events to which witnessis testifying is a condition for the admissibility of the witness’ testimony on any particular matter. (People v. Lewis, supra, 26 Cal.4th 334, 356.) “Thus, an alleged incapacity to observe correctly or to remembercorrectly goes to the issue of personal knowledge under [Evidence Code] section 702.” (People v. St. Andrew (1980) 101 Cal.App.3d 450, 458, n. 3.) Rather than automatically excluding the testimony of an impaired witness (District of Columbia v. Armes (1882) 107 U.S. 519, 521-522, 27 L.Ed. 618, 2 S.Ct. 840), “. . . the question to be determined is whether the proposed witness’s mental derangement or defect is such that he was deprivedof the ability to perceive the event about whichheisto testify or is deprived of the ability to recollect and communicate with reference thereto.” (People v. McCaughan (1957) 49 123 Cal.2d 409, 420.) A witness must havethe ability to perceive, recollect andtestify and if he or she does not have that capacity, the witness’s mere presence on the scene means nothing. No matter how appellant’s trial attorney characterized his capacity argument, the fact remainsthat the defense raised a triable issue of fact regarding both Fraduie’s and Mendez’s capacity to perceive and recall what happened during each of the murders. There is no question Fraduie was heavily intoxicated during the events to which hetestified. The intoxication of a witness at the time of the events concerning whichhetestifies bears on his capacity for accurate observation and correct memory, and must be considered by a jury in determining his credibility. (Farrell L. v. Superior Court (1988) 203 Cal.App.3d 521, 528-529; People v. Samuels (2005) 36 Cal.4th 96, 116; People v. Singh (1937) 19 Cal.App.2d 128, 129 [evidence of witness intoxication admissible to show witness’ capacity to recollect]; Evid. Codesection 780].) Because Fraduie was so extremely intoxicated, there was an issue regarding his capacity to testify, and the court should have instructed the jury regarding capacity in the context of 124 eyewitness identification. The trial court, therefore, erred by failing to include the requested language on capacity wheninstructing the jury per CALJIC No.2.92. B. The Court’s Error was Prejudicial Respondentarguesanyerrorin rejecting the standard language requested by defense counsel was harmless because trial counsel’s argument filled in any instructional gap and there was “strong evidence . . . that heighted [sic] the credibility of the eyewitness testimony.” (RB 49-50.) More specifically, respondent argues “both Mendez and Fraduie provided multiple descriptions of the shooter from their ownrecollection which matched appellant’s appearance at the time, identified appellantout of both photographic andlive lineups, and were highly confident of their identifications.” (RB 50.) As appellant has previously explained, “recollection”is highly malleable, and the photographic andlive lineupsin this case were so suggestive as to rendertheidentifications unreliable. Respondentalso ignores the fact, while appellant’s attorney challenged the accuracy of the 125 eyewitnessidentifications in his opening statement, cross-examinations and closing argument, he failed to call an expert on eyewitness identifications. He also failed to mention the apparent lack of prior contacts between the witnesses and appellant, or conversely the possibility that the identifications were based on unconscious recollectionsof seeing appellant previously in the neighborhood.In his closing argument, the prosecutor did not acknowledgeanydifficulty with the eyewitness identifications made by Mendez and Fraduie. Rather, he argued there was no connection between the surviving victims and the defendant, and that because there was no prior contact, the witnesses had no reason to be untruthful. (4RT 634.) Furthermore, the prosecutor repeatedly arguedthe jury should use “commonsense” to evaluate the eyewitness testimony — often relying upon the very myths aboutthe ability of witnesses to perceive and recall an expert might have rebutted. (4RT 642-643 [stress would help the witness remember, use “common sense”]; 643-645 [the prosecutor's unsupported speech regarding the difference between “the ability to recognize” and “theability to describe” ]; 637-638, 645, 648 [the certainty 126 expressedbythe witnessesasto their identifications of appellant]; 685- 686 [use commonsense].) The error was not harmless, but permitted the prosecutor to exploit a significant weakness in the defense case — the failure to call an expert. (People v. Watson (1956) 46 Cal.2d atp. 836.) Key to the prejudicial nature of this error is the extensive research showingthe certainty of a witness is easily manipulated by a variety of factors that have nothing to do with accuracy. (See, e.g., AmyL. Bradfield, Gary L. Wells & Elizabeth A. Olsen, The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. Applied Psychol. 112 (2002); Gary L. Wells & AmyL.Bradfield, “Good, You Identified the Suspect’: Feedbackto Eyewitness Distorts Their Reports of the Witnessing Experience, 83 J. Applied Psychol. 360 (1998).) At the same time, research also shows that fact-finders place a disproportionate weight on the confidence of the witness in their analysis of the witness’ reliability. (Siegfried Ludwig Sporer, Eyewitness Identification Accuracy, Confidence, and Decision Times in Simultaneous and Sequential Lineups, 78 J. Applied Psychol. 22, 23 (1993); see also Penrod & Cutler, Witness Confidence, 127 supra, at 819 [reporting a mock-jury finding that “nearly fouroutoffive mistakenidentifications are believed” ]; Gary L. Wells, How Adequate Is Human Intuition for Judging Eyewitness Testimony, in Eyewitness Testimony, Psychological Perspectives, 256, 271 (Gary L. Wells, Elizabeth Loftus, eds., 1984). Thus, the “confidence” respondentcites is a factor proving howprejudicial this instructional error was in the context ofthis case, not a factor supporting a finding of harmlesserror. Because thetrial court excised vital portions of the eyewitness identification factors from the instruction, appellant was placed at a disadvantage whenit cametimefor the jury to consider the accuracy andreliability of the eyewitness identifications. Even in the absenceof argumentby counsel, the jury would have been promptedto consider whetherthe eyewitnesses werereliable given, among other weakening factors, the witness's belief they had never seen the perpetrator(s) before, and in at least one case, the eyewitness's ability to observe was significantly compromisedbyhis state of intoxication. In a case where the only evidence supporting the convictions was eyewitness identifications, this was necessarily prejudicial. The version of CALJIC 128 No.2.92 given in this case violated appellant's rights to due process, to meaningfully present a defense, to the effective assistance of counsel, and to reliable guilt and penalty verdicts, as protected by the federal and California constitutions, where appellant's conviction depended upon uncorroborated eyewitness identifications. (U.S. Const., Fifth, sixth and Fourteenth Amends.) Appellant’s convictions musttherefore be reversed. VI. THE TRIAL COURT'S FAILURE TO MAINTAIN COURTROOM DECORUM BY CONTROLLING WITNESS MENDEZ'S OUTBURSTS WAS PREJUDICIAL ERROR Respondentdeniesthetrial court prejudicially failed to maintain courtroom decorum byfailing to control Mendez’s outbursts in front of the jury, mischaracterizing the issue as an evidentiary one. (RB 50- 57.) Respondentis wrong. The prosecution called Carlos Mendez as a witness in both the guilt phase and in the penalty phase retrial. (3RT 459-497; 5RT 1002-1029.) Thirteen times during his guilt phase testimony, and three times during the penalty retrial, Mendez called appellant "that devil" (3RT 464-465, 470-473, 476, 479; 5RT 1007-1008, 1017.) He added more 129 emotionto his penalty retrial testimony by stating, in reference to the shooting of his wife that "even a dog can't be killed this way." (SRT 1029.) A. Respondent Fails to Address the Applicable Federal Cases Guaranteeing a Criminal Defendant the Right to A Fair and Impartial Trial and Imposing Upona Trial Judge the Duty to Maintain Proper Decorum and An Appropriate Atmosphere in the Courtroom Respondentfails to address the authorities appellantcited in his OpeningBrief establishing a violation of federal due process wherethe accused does notreceive a trial by an impartial jury free from outside influences becausethetrial court failed to meet its duty to maintain the order and dignity of the judicial process and to prevent improper influences from reaching the jury. Among the authorities respondent ignores are the United States Constitution, Sixth and Fourteenth Amendments; Sheppard v. Maxwell (1966) 384 U.S. 333, 362; United States v. Young (1985) 470 U.S. 1, 10; and Murphyv. Florida (1975) 421 U.S. 794, 799; Chambers v. Florida (1940) 309 U.S. 227, 236-237. 130 B. Respondent Has Mischaracterized the Issue as Oneof Evidentiary Error, and The Error Arising From the Trial Court’s Violation of its Independent Duty to Maintain Courtroom Decorum is Not Forfeited For Failure to Object Respondent argues “objections to evidence on the specific groundsasserted must be madeor the objectionis forfeited.” (RB 55.) Appellant has not raised an issue of evidentiary error here; the issueis spectator or witness misconductandthetrial court’s failure to meetits independent duty to make sure "public sentiment" toward a defendant not be expressed in the courtroom in such a mannersoasto influence the jury. (People v. Slocum (1975) 52 Cal.App.3d 867, 883.) Respondentcites no authority holding a defendantin a criminal case — and particularly in a capital murder case — is required to object to trial court's failure to control his courtroom in orderto preserve the issue for appeal. Accordingto the StandardsofJudicial Administration recommendedbythe Judicial Council, adopted by the Judicial Council pursuant to the authority contained in section 6, article VI of the California Constitution, a court has an affirmative duty to prohibit witnesses from creating bias by their conduct and to ensurethat fact- 131 finders’ decisions are not influenced by biases. This would include a sua sponte duty to prohibit witnesses or victims from improperly influencing a jury to decide a case through their emotional outbursts. More specifically, “the rule that an appellate court will not fconsider points not raised at trial does not apply to ‘[a] matter involving the public interest or the due administration of justice.” (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 315, p. 326.) The issue of bias of any kind involves both a public interest and concern for the due administration of justice. (See, e.g., Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 244, 248 [disapproved on other groundsin People v. Freeman (2010) 47 Cal4th 993]; Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 462.) The same rule should apply to a trial court’s failure to control a witness, where the same concerns are of equal or greater magnitude. Nor was appellant requiredto raise specific federal constitutional claimsat trial in this context, as respondent argues. (RB 55.) Again, this is not an evidentiary issue, but an issue of an unfair trial due in part to the trial court’s failure to control his courtroom. 132 C. Appellant Was Deprived of His Rightto a Fair Trial by Mendez's Outbursts Respondentsubstantially fails to address appellant’s argument, instead twisting the facts and the law and minimizing Mendez’s outbursts and the effect they had on the jury. (RB 55-57.) Instead of addressing the authorities appellant cited in his Opening Brief, respondent cites Penal Code section 1044”andasserts, “[t]he trial court has the broad discretion to control the proceedings duringtrial ‘with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.’” Ignoring appellant’s discussion of Rodriguez v. State (Fla.App. 1983) 433 So.2d 1273 — a case very similar to this one — respondent argues Mendez was “understandably emotional” and so his conduct, and the court'sfailure to control it, was not error. (RB 56.) That is not the case. No matter how “understandable” a witness’ or victim’s 19 That section provides: “It shall be the duty of the judge to controlall proceedings duringthetrial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” 133 emotions might be, the court muststill control the witness to ensure a fair trial. In Rodriguez, the victim’s widow was unable to make an identification, but at trial — like Mendez in this case — the widow shouted epithets and interspersed her testimony with impassioned, hostile statements directed at the defendant. The Rodriguez court reversed, finding the widow’s misconduct engendered sympathy for her plight and antagonism for the defendant, depriving him ofa fair trial. The court held these outbursts, while “understandable,” were extremely prejudicial. (Rodriguez v. State, supra, 433 So.2d at 1276.) A similar display of emotion, hostility, impassioned statements and shouted epithets occurred here: Mendez angrily and repeatedly called appellant "that devil" and garnered sympathy for his dead wife by emoting, "even a dog can't be killed this way." (3RT 464-465, 470-473, 476, 479; 5RT 1007-1008, 1017; 1029.) Respondentalso ignores appellant’s discussion of Fuselier v State (Miss. 1985) 468 So 2d 45, a prosecution for capital murder, where the victim's daughter sat at counsel’s table, openly displaying emotion 134 during the proceedings. The Court reversed the conviction, finding the daughter’s conduct might have lead to a verdict based on vengeance and sympathy as opposed to a reasoned application law to facts. (Fuselier v State, supra, 468 So 2d 45, 52-53.) The same principle applies here. Appellant wasontrial for his life, and Mendez's emotional outbursts and identification of appellant as that devil" could only taint a trial where the sole issue was whether appellant was the person who shot Mendez andkilled his wife. The unfair and prejudicial emotional emphasis served to overshadow the facts.” Thus, it can fairly be said that Mendez’s “understandably emotional” conduct in front of the jury cannotbejustified; it should have been controlled by the trial court; and it was error of constitutional magnitude for the court to permit Mendez to call 20 Respondentfails to address State v. Stewart (1982) 278 S.C. 296 [295 S.E.2d 627, 629-631], certiorari denied 459 U.S. 828, 74 L.Ed.2d 65, 103 S.Ct. 64; Price v. State (1979) 149 Ga.App.397 [254 S.E.2d 512, 513-514]; Walker v. State (1974) 32 Ga.App. 476, 208 S.E.2d 350; State v. Gevrez (1944) 61 Ariz. 296, 148 P.2d 829, 832-833; and Glenn v. State (1949) 205 Ga. 32, 52 S.E.2d 319, 321-322, all of which appellant cited in his Opening Brief. 135 appellant “that devil” more than a dozen times during the proceedings. D. Mendez's Outbursts Were Prejudicial Again mischaracterizing the issue by referring to “inadmissible evidence,” and citing cases inapplicable to the issue appellant has raised, respondent argues “any error in failing to control Mendez’s emotional outbursts was harmless.” (RB 57.) Respondent is wrong. First, respondent does not address the correct standard for assessing prejudice. Where a Sixth Amendmentright to fair trial and a Fourteenth Amendmentdueprocessviolation is charged, this court must apply the Chapman standard of prejudice. (Chapmanv. California (1967) 386 U.S. 18, 24.) Accordingly, to affirm, this Court must be able to declare a belief that the error was harmless beyond a reasonable doubt. (Ibid.) To do so, the court mustfind that '’the error complained ttt — because it wasof did not contribute to the verdict obtained "unimportant in relation to everything else the jury considered on the issue in question.” (People v. Flood (1998) 18 Cal.4th 470, 494, quoting Yates v. Evatt (1991) 500 U.S. 391, 403.) As the United States Supreme Court held in Sullivan v. Louisiana (1993) 508 U.S. 275, "Harmless-error 136 review looks . . . to the basis on which 'the jury actually restedits verdict.’ [Citation.] The inquiry, in other words, is not whether, in a trial that occurred withouttheerror, a guilty verdict would surely have been rendered, but whetherthe guilty verdict actually renderedin this trial was surely unattributable to the error." (Id. at p. 279, original italics.) The court's failure to control Mendez's outbursts and admonish the jury was not harmless beyond a reasonable doubt. Respondent claims “Mendez’suse of the term ‘devil’ did nottell the jurors anything they could not easily surmise for themselves” and again urges this Court consider Mendez’s “understandably” emotional state. (RB 57.) Respondent’s argument misses the point and ignores the cases appellant cited in his briefing holding that even “understandable” emotion mustbe controlled in the courtroom. (See AOB pp. 164-166.) Respondentfails to address the evidenceof the jurors’ uncertainty over appellant's involvement in the Tacos el Unico shooting. (6RT 1317-1320, see AOB, Arg. VIL.) Respondentfails to address the second penaltyjury’s apparent doubt in Mendez’s conflicting and inconclusive 137 testimony and Galindo's unequivocal testimony the shooter was a much larger man than appellant. (6RT 1129-1131.) It cannot be said beyond a reasonable doubt that Mendez's outbursts did not tip the scales in favor of the prosecution.” VII. THE PENALTY PHASE JUDGMENT MUSTBE REVERSED BECAUSE THE TRIAL COURT REFUSED TO GIVE A LINGERING DOUBT INSTRUCTION, FAILED TO RESPOND ADEQUATELY TO THE JURY’S QUESTION INDICATING IT HAD A LINGERING DOUBT AS TO THE MULTIPLE MURDER SPECIAL CIRCUMSTANCE, AND BECAUSE THE COURT'S INSTRUCTION INRESPONSETO THE JURY'S QUESTION DIRECTED A VERDICT OF DEATH, IN VIOLATION OF STATE LAWAND THEFIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS Respondent disagrees the penalty phase judgment requires reversal becausethetrial court erroneously refusedto give a lingering doubtinstruction, failed to respond adequately to the jury’s question indicating it had a lingering doubt as to the multiple murderspecial circumstance, and because the court’s instruction in response to the jury’s question directed a verdict of death. (RB 58-72.) Respondentis 21 Respondentfails to respond to any of appellant's prejudice arguments at pages 167-169 of appellant's OpeningBrief. 138 wrong. A. Respondent Omits Material Facts Respondent omits the following facts: Prior to ruling on the defense requestfor jury instructions, the court remarked: “I have not found anycasesthat deal with that, this lingering doubt business.. . It just seems to me — Well, I’ll keep my opinions to myself about having separate juries hear the case and then talk to them about lingering doubt that they don’t know anything aboutbecause they didn’t decide the defendant's innocenceor guilt, but the law says that’s what you are allowed to do. Andthat ought to confuse everybody, I think.” (6RT 1238-1239.) Without further elaboration, the court declined to give defense instructions “A” and “C.” (6RT 1243-1244.) The instructions were refused despite the facts 1) there were significant weaknessesin the identifications of the perpetrator”; 2) the original jury was unable to reach a penalty verdict, splitting 7-5 forlife; 3) the penaltyretrial jury was hearing the case anew;and 4) the penalty 22 See detailed discussion in appellant’s Opening Brief, Arguments I and II. 139 retrial jury heard anew defenseidentification witness whose testimony was not heard by thefirst jury. Nothing in the instructions given informedthejury it could consider lingering doubt, as was evidenced by the jury’s question: "If the jury agrees that one of the cases presented warrants the death penalty, however one of the cases contains some doubt, accordingto the instructions, is this sufficient for awarding death?" (10CT 2887; 6RT 1316.) Theretrial jury was then instructed the guilty verdicts had been determined bythefirst jury. The instruction was: “The defendant has been found guilty of murderin thefirst degree. The allegation that the murder was committed under a special circumstance has been specifically [sic] found to be true.” (6RT 1303.) Respondent omits part of the court’s instruction to the jury: THE COURT: Your questionis as follows: “If the jury agrees that one of the cases presented warrants the death penalty, however, one of the cases contains some doubt, accordingto the instructions, is this sufficient for awarding death?” Ihave met with the lawyers, and the answeras best we can give youis as follows: 140 Thatall things consideredin this case, in the context of your question, the jury still may choose which of the twopenalties is appropriate in this case. The answer ts yes. Doesthat answer your question? THE FOREPERSON: [believeso. THE COURT:All right. Thank you. (20CT 5638; 6RT 1319-1320 [emphasis added].) Respondent omits the prosecutor's closing argument. The heart of the prosecution’s penalty phase case was to condemnappellant for being “a predatorkiller, who kills for the enjoyment, for the excitement of it.” (6RT 1251-1252, 1278-1279.) The prosecutor argued that another jury had already found beyond a reasonable doubt that appellant had committed both murders. (6RT 1255.) The prosecutor argued: ... there were two witnesses whotestified in this area of residual doubt. The first witness was a man named Galindo, Joe Galindo. And he wasacrossthestreet and downtheblock slightly when he saw — well, he heard a shooting,” and then he saw a black male apparently run 23 Here the prosecutor misstated Galindo’s testimony. Galindotestified 141 by. And his description of the black male is different from how you would generally describe the defendant. (6RT 1255-1256.) Nobody ever informedthe penalty retrial jury that the guilt phase jury never heard Galindo’s testimony. B. The Trial Court Erred In Denying Appellant’s Lingering Doubt Instruction Respondent concedes doubts as to a capital defendant’s guilt may be considered as mitigation in fixing the penalty. (RB 66.) However, respondent deceptively argues the very facts that made an instruction on lingering doubt necessaryto a fair penaltyretrial in this case as rendering the instruction unnecessary, distorting the record. Respondentargues, “[T]he evidence presentedat the penaltyretrial by appellant regarding the Mendez/Vasquez shooting exceeded the evidencehe presentedat the guilt phase. Appellant wasable to present even more evidence of lingering doubt through Galindo's testimony, which was unavailable at the time of the guilt phase trial.” (RB 65.) That is true, but respondent omits the fact the second penalty phase that he did see the shooting, in that he saw a man with his arm raised and a muzzle flash. (6RT 1127-1129.) 142 jury was unawarethat Galindodid nottestify at the first penalty phase trial — information which would have contributed significantly to a lingering doubt finding by the second penalty phase jury, had it only knownthetruth. Respondentattacks appellant's reliance on People v. Cox (1991) 53 Cal.3d 618 as dictum. (RB 66-67.) In so doing, respondentcites several casesthatsay, essentially,a trial court is not requiredto instruct a jury that lingering doubtis factor to consider.” Those cases, however, did not involve penalty phase retrials with new juries and substantially different evidenceat the penalty phase than waspresentedat the guilt phase, nordid they involve a question from the jury expressing concern over lingering doubt. (10CT 2887 [“If the jury agrees that one of the cases presented warrants the death penalty, however, one of the cases contains somedoubt, accordingto the instructions,is this sufficient for 24 Respondentcites People v. Avila, supra, 38 Cal.4th at p. 615; People v. Boyer (2006) 38 Cal.4th at pp. 487-488; People v. Huggins (2006) 38 Cal.4th at p. 251; People v. Harris (2005) 37 Cal.4th 310, 359; People v. Gray (2005) 37 Cal.4th 168, 231-233; People v. Ward (2005) 36 Cal.4th 186, 219-221; People v. Panah (2005) 35 Cal.4th 395, 497; and People v. Valdez (2004) 32 Cal.4th 73, 129, fn. 28.) 143 awarding death?"].) This Court has not held a lingering doubt instruction is never required under any circumstances. Rather, in People v. Ward, supra, 36 Cal.4th 186, this Court stated, referring to the Cox decision: We havesince held, however, that such an instruction is generally unnecessary where, as here, the court instructs in the standard terms of section 190.3, factors (a) and| (k). (People v. Hines (1997) 15 Cal.4th 997, 1068, 64 Cal.Rptr.2d 594, 938 P.2d 388.) (id. at p. 220 [emphasis added].) This was an unusual case wherethe court was required to give a properly formulated lingering doubt instruction based on the evidence, and on the jury’s expressed confusion over the significance of lingering doubt. (People v. Cox, supra, at p. 678, fn. 20; see also People v. Thompson (1988) 45 Cal.3d 86, 124, cert. den. (1988) 488 U.S. 960, 102 L.Ed.2d 392, 109 S.Ct. 404 [recognizing propriety of appropriately phrased instruction to consider lingering doubt regarding a defendant’s intent to kill in deciding penalty]; People v. Kaurish (1990) 52 Cal.3d 648, 705-706 [rejecting claim that court should have given defense instruction where court’s instruction that jurors “could 144 consider lingering doubt of defendant’s guilt to be a factor in mitigation” wassufficient].) Respondentasserts appellant has “put forward nobasis in law, fact or logic which would distinguish the instant case. . .” from any other death penalty case. (RB 67.) In fact, appellant’s case is distinguishable from any case wherethe evidencepresentedto the guilt phase jury and the evidence presented to anew penalty phase jury was significantly different. It was for this reason the evidence warranted the residual doubt instruction — the penalty jury heard a different case, and so it was fundamentally unfair to tell the penalty jury the guilt phase jury hadalready decided appellant’s guilt beyond a reasonable doubt andnottotell the penalty jury there was a new witnessin the mix. The jury’s question regardinglingering doubt [“If the jury agrees that one of the cases presented warrants the death penalty, however, one of the cases contains some doubt, accordingto the instructions, is this sufficient for awarding death?"] also required an adequate instruction on lingering doubt, which was not forthcoming. 145 Respondentclaims“[t]o the contrary, the jury’s question demonstrated it was well awareof the mitigating value of lingering doubt because the inquiry was whether the existence of lingering doubt on the Mendez/Vasquez shooting would automatically preclude a verdict of death.” (RB 66.) Appellant disagrees with respondent’s interpretation of the jury’s question. If the question is ambiguous, then the conviction should be reversed because a man’slife is at stake, and no man should be putto death whenthe penalty phase jury was notfully instructed on the significance of lingering doubt. The identity of the person (or persons) who killed Vasquez and Moreland and attempted to kill Mendez and Fraduie was the only contested questionat the guilt phase. As appellant arguedat trial, and continues to argue on appeal, the evidence wasinsufficient to prove that he was the gunmanin either case. The possibility of lingering doubt wasa circumstanceof the capital crimes that could be considered by the jury under both Penal Codesection 190.3, subdivisions (a) and (k). While the penalty jury did not decide appellant’s guilt, it was presented with evidence concerning the facts and circumstancesof the 146 murders. Respondent ignores appellant's citation to People v. Gonzalez (1990) 51 Cal.3d 1179, where this Court indicated a jury determining penalty only, if given the pertinent information regarding the homicide, may weigh any residual doubt about the convictionsin its penalty deliberations. (Id. at pp. 1234-1236.) Respondentalso fails to address People v. DeSantis (1992) 2 Cal.4th 1198, cert. den. (1993) 508 USS. 917, 124 L.Ed.2d 268, 113 S.Ct. 2361 in this context. DeSantis held a residual doubtinstruction was properin a penaltyretrial. (Id. at p. 1239.) Respondent fails to address how the prosecution’s own penalty phase evidence provided a basis for residual doubt as to appellant's guilt. Respondent ignores the following facts: The only evidence linking appellant to the shootings was the significantly flawed eyewitness identifications by Mendez and Fraudie, both of whom were strangers to appellant, and both of whom madetheir identification undercircumstances well knownto lead to false identification. Both shootings occurred after dark, and were completely unexpected and out of context. Fraduie was intoxicated at the time of the event. 147 Mendez wasin shockat having been shotin the face and leg, and upon learning that his wife had beenkilled. Significant time passed between the crimes and the witnesses being presented with the initial, suggestive, photo lineup.” Respondent also ignores the key facts undermining the prosecution case. Defense witnesses Slaughter and Galindotestified to amuchtaller and heavier man whoshot Mendez andhis wife. After observing appellant standing up in court, Galindo emphatically stated that appellant wasnotthe shooter.” Lingering doubt, therefore, was the centerpiece of appellant’s penalty defense. His attorney urged the jury to consider such doubt as mitigation. (6RT 1285-1293.) The instructions the defense requested were appropriately drafted to address overall lingering doubtas to appellant’s guilt. (Contrast People v. Cox, supra, 53 Cal.3d at pp. 675-677 [requested instruction erroneously directed that the jury consider 25 See detailed discussion in appellant’s AOB, Arguments I and II and in the present Reply, supra. 26 The jury was not informed Galindo hadnottestified at the guilt phase. 148 lingering doubt regarding the natureofhis participation rather thanhis guilt].)”” Nothingin the instructions informed the jury it was permitted to considerresidual doubt, and the jurors’ question — "If the jury agrees that one of the cases presented warrants the death penalty, however, one of the cases contains some doubt, accordingto the instructions,is this sufficient for awarding death?” — indicates that the jury did not understandthat residual doubt could be weighedin mitigation. Trial counsel's argumenton lingering doubt wasinsufficient to overcomethe trial court's error in refusing to instruct the jury on lingering doubt. Respondentfails to address Boyde v. California (1990) 494 U.S. 370, 383-384, or Hitchcock v. Dugger (1987) 481 U.S. 393, 397-399, which support appellant’sposition his trial attorney’s argument onlingering doubtwasinsufficient to overcomethetrial court's error in refusing to instruct the jury on lingering doubt. As the United States Supreme 27 In requesting the instructions, defense counsel cited three cases: People v. Morris (1991) 53 Cal.3d 152, 218-219; People v. Thompson, supra, 45 Cal.3d 86, 134; and People v. Arias, supra, 13 Cal.4th 92, 183. (10CT 2881, 2883; 6RT 1241-1242.) These references provided adequate and accurate authority for appellant’s request. 149 Court noted in Boyde, supra, instructions, not argument by counsel, guide jury deliberations: [A]rguments of counsel generally carry less weight with a jury than doinstructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence[citation] and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law. (Boyde v. California, supra, 494 U.S. at 384 [addressing prosecutorial misstatements of the law].) In short, a residual doubt instruction was necessaryin this case, and thetrial court erred in denying appellant's instruction. Thetrial court’s refusal to give the lingering doubt instruction wasnotonly an error understate law, butit also violated appellant’s federal constitutionalrights to due process, equal protection,a fairtrial, and areliable and non-arbitrary penalty determination underthe Sixth, Eighth and Fourteenth Amendments.A liberty interest created by state law is protected against arbitrary deprivation under the Fourteenth Amendment. (Hewitt v. Helms (1983) 459 U.S. 460, 466, 74 L.Ed.2d 675, 103 S.Ct. 864; see also Hicks v. Oklahoma (1980) 447 U.S. 343, 346 150 [defendanthasstate-created right that he will be deprived ofhis liberty only to the extent determined bythe jury in the exerciseof its statutory discretion].) California law mandates lingering doubt be considered, whenoffered, as mitigation. (People v. Terry (1964) 61 Cal.2d 137, at pp. 145-147) and that appropriately written instructions on lingering doubt be given. (People v. Cox, supra, at p. 678, fn. 20; People v. Thompson, supra, 45 Cal.3d at p. 134.) The refusal of the trial court to give appellant’s lingering doubt instruction deprived him of his state- created liberty interest not to be sentenced to death by jury that did not consider lingering doubt as a basis for a lesser sentence. The arbitrary failure of the trial court to abide by state law constituted a denialof due process underthe federal constitution. (Fetterly v. Paskett (9" Cir. 1993) 997 F.2d 1295, 1300 [failure of judgeto follow state capital sentencing procedures for weighing aggravating and mitigating circumstances was a denial of due process under Fourteenth Amendment].) Moreover, the denial to appellant of a state-created right granted to other capital defendants violated the equal protection clause of the Fourteenth Amendment. (See Myers v. YIst (9" Cir. 1990) 151 897 F.2d 417, 425, cert. den. (1991) 498 U.S. 879, 112 L.Ed.2d 172, 11 S.Ct. 202 [state court’s retroactive application of jury selection rule to one defendant but not to another violated the federal equal protection clause].) The rejection of appellant’s lingering doubtinstruction was erroneous underboth state and federal law and requires reversalof his death sentence. C. The Trial Court's Instruction to the Jury FollowingIts Inquiry Deprived Reed of His Right to Have the Jury Consider and GiveFull Effect to Its Doubt as to One Count 1. The Court Was Required to Give a Lingering Doubt Instruction Under the Circumstances of this Case, Because, During Deliberations, The Jurors Requested Instruction on their Doubtas to Whether Appellant Committed One of the Murders Respondent disagrees the jury request for instruction on their doubtas to whether appellant committed one of the murders required a lingering doubt instruction. (RB 67-69.) (a) The Issue is Not Forfeited Although conceding “thetrial court in this case did not give the exact agreed-upon wordingof the instruction,” respondent arguesthe 152 issueis waived becausedefense counselparticipated in the formulation of the responseand“affirmatively approved of the response ultimately given.” (RB 67.) Without citing to the record, respondent claims defense counsel “essentially agreed to the substance of the given instruction.” (RB 67.) There is nothing in the record to supportthis statement. The court omitted the crucial words counsel had agreed upon, "whatever doubt you may have on one of the murders," and added the word "yes" despite the agreement of both the prosecutor and defense counsel that it was improperto tell the jury "yes." (6RT 1317-1320.) (b) The Court’s Response Was Inadequate Respondentsets out the law governinga trial court’s duty to help the jury understand the legal principles it is asked to apply, but concludeselaboration upontheoriginal instructionsis not necessarily required.” (RB 68.) Thetrial court here agreedto elaborate upon the 28 Here respondentcites People v. Smithey (1999) 20 Cal.4th 936, 985, for the proposition “a trial court's decision as to what information is sufficient to satisfy the jury's request for information is reviewed for abuse of discretion.” At the place cited, Smithey addressed a jury’s 153 original instructions; however, the court omitted the crucial words counsel had agreed upon — "whatever doubt you may have on oneof the murders" — and addedthe word "yes," despite the prosecutor’s and defense counsel's clearly expressed concern it was impropertotell the jury "yes." (6RT 1319-1320.) The issue here is whetherthe instruction the court gave — clearly deviating from the instruction agreed upon by both parties — was inadequate and misleading to the jury. It was both. Respondent argues there was no abuse of discretion in the instruction because the “court's response to the jury's question was legally correct.” (RB 68-69.) That was not the People’s positionattrial. Both counsel agreed that “yes” was not an appropriate response. (6RT question about verdict forms, not instructions. This Court held “[t]he court reasonably concluded that the jury was uncertain whether and under whatcircumstancesit should complete someorall of the special circumstance verdict forms. The court's explanation was clear and correct. It was clearto the jury that the court's explanationof the verdict forms did not purport to be a complete reinstruction on the special circumstances. The court reasonably declined to instruct further on the issue, particularly in light of the foreperson’s indication that the jury no longer was confused.” (Ibid.) Here, the trial court did not inquire to determine whether the jury was still confused after giving an instruction both parties had agreed wasincorrect, even whenthe jurors requested readback of Foster Slaughter’s testimony, indicating the jury's doubt. (OCT 2885; 6RT 1324.) 154 1317-1319 [The prosecutor: “I think legally the answerto the question is yes they can, buttelling them yesthey can, I fear what — thatthat will be telling them how they should vote. [f] And that’s why I madethe suggestion that wetell them,‘All things considered, including whatever doubt you may have on oneof the murders, all things considered, you can choose oneor the other.’”” [Emphasis added.]) Principles of appellate review bar respondentfrom advancing on appeal an argument it did not advancein the trial court. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592 [arguments raised for the first time on appeal are forfeited]); Saville v. Sierra College (2006) 133 Cal.App.4th 857, 872 [under the “theory ofthetrial doctrine,” a party is “not permitted to change[its] position and adopt anew anddifferent theory on appeal’]; Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 [“[j]udicial estoppel prevents a party from asserting a position... that is contrary to a position previously taken in the same or someearlier proceeding ‘].) These principles compel that this Court disregard respondent’s new position that omitting the crucial phrase addressing “doubt” and adding the word “yes” was 155 correct. The jury’s request could not have beena clearer indication the jury had a lingering doubt about one of the murders, as defense counsel noted in requesting that the jury be instructed the answerto their question was “no”and that they should consider lingering doubt as a circumstance in mitigation. (6RT 1317.) In response to the jury’s question, the court failed to give the instruction agreed upon by counsel that the jurors could consider whatever doubt they might have on one of the murders, and instead instructed them that yes, they could impose the death sentence despite their doubt as to appellant’s culpability for one of the two murders. This wasclearly error. 2. The Error Was Prejudicial Respondent does not address appellant’s contention the error deprived him of due process, his right to present a defense, and his right to assistance of counsel. (See AOBpp. 189-193.) 156 D. The Penalty Phase Judgment MustBe Reversed Because The Court’s Instruction That the Jury Was “Not Here to Determine [Appellant’s] Guilt Or Innocence” And The Court’s Response to The Jury’s Lingering Doubt Question Directed a Verdict of Death, In Violation of State Law andtheFifth, Sixth, Eighth, and Fourteenth Amendments Despite respondent’s objectionattrial to the defective answerthe court gaveto the jury’s lingering doubt inquiry on the ground it would direct a verdict of death, on appeal respondentdisagrees the court directed a verdict of death. (RB 69-70.) Respondentrelies solely upon this Court’s decision in People v. DeSantis, supra, 2 Cal.4th 1198, cert. den. (1993) 508 U.S. 917. 1. RespondentIgnores Crucial Facts Peculiar to This Case That Renderthe Judgment of Death Unfair Respondentignoresoneof the essential problemswith this case: the guilt and penalty juries heard materially different evidence, but the penalty jury was neverinformedofthis fact. The penalty jury could not make an accurate penalty determination that included a full assessmentofall of the facts bearing upona lingering doubt appellant committed one of the murders. In spite of this fundamental problem, 157 the trial court instructed the jury appellant's guilt was "conclusively presumed" (5RT 943) and "conclusively proven." (6RT 1232.) When during deliberation, the jurors asked a question revealing that someor all in fact had lingering doubt, the trial court's answer further closed the doorto the jury's consideration of lingering doubt as mitigation. (6RT 1319-1320.) The trial court's instructionsto the penalty retrialjury, taken together, effectively directed a verdict of death for appellant. Morespecifically, respondent ignores the facts that the penalty retrial jury wasthe only jury to hear the crucial eyewitness testimony of Joe Galindo, whose unavailability (due to his National Guard service) had beenthe subject of an unsuccessful motion to continue the guilt phaseof the trial.” (6RT 1126-1137.) Joe Galindo emphatically testified appellant was not the person who shot and killed Amarilis Vasquez, corroborating and expandingFoster Slaughter's testimonythe 29 See Argument| in appellant’s Opening Brief regarding the trial court’s errorin refusing to grant a continuance to obtain Galindo’s testimony for the guilt phaseoftrial. 158 man whoshot Vasquez was muchtaller and heavier than appellant.” (6RT 1130-1131.) The penaltyretrial jury asked, "If the jury agrees that one of the cases presented warrants the death penalty, howeveroneof the cases contains some doubt, according to the instructions, is this sufficient for awarding death?" (10CT 2887; 20 CT 5638; 6RT 1316.) The - court instructed the jury, essentially, the answerto their question was “Yes.” (6RT 1319-1320.) Respondent also omits the following facts: When the jury first returned with a verdict of death and the court polled the jury, Juror number1 said death wasnother verdict. (20CT 5638; 6RT 1320-1322.) The court told the jurors to go backinto deliberations. (20CT 5639; 6RT 1322.) At 10:55 a.m., the jury resumed deliberations. (20CT 5639.) At 11:30 a.m., the jury requested readbackof Foster Slaughter's testimony, and continued to work until 11:55 a.m. (10CT 2885; 20CT 5639; 6RT 1323.) Following the lunch break,the jury began deliberating againat 1:40 p.m., at which point it announced it no longer needed the 30 See detailed discussion of the crucial nature of Galindo’s testimony in ArgumentI of appellant’s Opening Brief at pp. 65-70. 159 readback. (10CT 2886; 20CT 5639; 6RT 1324.) At 1:50 p.m., the court went on the record and stated that, just before the noon hour, the foreperson had submitted a note requesting Foster Slaughter's testimony, but before the testimony could be read back, the court received another note stating, "We don't need the transcript re-read." (10CT 2886; 6RT 1324.) The court offered to bring the jury out to explore the issue, but counsel declined. (6RT 1324-1325.) At1:55 p.m., the jury informed the court that it had reached a verdict. (20CT 5639.) At 2:10 p.m., the jury returned to the courtroom with its unanimous verdict for death. (20CT 5639; 6RT 1325-1327.) The trial court committed fundamental constitutional error by invading the provinceof the jury as arbiter of penalty in a capitalcase. The jury was foreclosed from considering appellant's primary penalty defense, lingering doubt. 2. TheTrial Court Erroneously Directed a|Verdict in Favor of Death DeSantis does not foreclose appellant’s argumentthetrial court directed a verdict for death. DeSantis is distinguishable onits facts. 160 (a) DeSantis is Distinguishable From This Case In DeSantis, as in this case, the jury deadlocked at the penalty phase and a second jury was impaneled. That jury fixed the penalty at death. This Court ruled, as to the penalty phase instructions and the prosecutor’s argument, the court and prosecutor merely reminded the jury that defendant's guilt was to be conclusively presumed as a matter of law. This Court further held guilt may be conclusively presumed, and yet as a moral question the penalty phase jurors could personally retain somelingering doubt about whether the defendantin fact killed the victim. This Court further held the defendant wasnotentitled to a jury instruction on lingering doubt, even though the jury making the penalty determination was a different jury from the one that determined guilt. The key difference between DeSantis and this case is that in DeSantis the defendant wasallowedto present evidenceat the penalty trial so as to virtually retry the guilt phase. Morespecifically, at the second penalty trial in DeSantis, the court gave the defendant widelatitude to introduce evidence of the circumstances of the crime. The defendant recalled numerous 161 witnesses from the guilt phase to raise doubts aboutthereliability of their inculpatory testimony, and challenged the accuracy of prosecution witnesses’ testimony on cross-examination. Over the prosecutor’s objection,the trial court permitted the defendant to spend much time challenging the reliability of the surviving victim’s identification of him. Thus, the penalty phase jury was well awareof the nuances of the case. (Id. at p. 1236.) Here, althoughthe jury heard the testimony of Galindo — who had nottestified at the guilt phase — the jury did not knowthe guilt phase jury and first penalty phase jury had not heard Galindo’s critically important testimony that appellant wasnotthe shooter in the Tacos el Unicos murder. Thus, appellant’s penalty phase jury was deprived of information crucial to its lingering doubt determination. So, unlike the DeSantis case, the court in appellant’s case removed the lingering doubt question from thejury through a combinationoffailing to inform the second penalty phase jurythat thefirst penalty phase jury had not heard Galindo’s testimony, and the faulty jury instructions discussed above. 162 Respondent argues that “as in DeSantis, appellant's counsel repeatedly conceded during the closing arguments that appellant had already been foundguilty of the murders and that he wasthere just to ask the jury ‘not to kill him.’ (6RT 1280-1281.)” This is not a fair comparison, given the circumstances of appellant’s case. Appellant’s counsel hadlittle choice but to argue as he did, as thetrial court had repeatedly ruled against him on instructional issues, and he could not tell this second jury whatthe first jury had not heard. Finally the DeSantis Court expressly did not decide “whetherin another case a lingering doubt instruction of some type might be proper.” (Id. at p. 1239.) This is that case. (b) Respondent Substantially Fails to Address Appellant’s Argument Respondentsubstantially fails to address appellant’s argument. While respondentcites People v. Gay (2008) 42 Cal.4th 1195 (RB 72), respondent does not discuss the significance of that case to appellant’s death penalty judgment. In Gay, this Court found erroneousaninstruction whichtold the jury at the penalty retrial that 163 it had been "conclusively proven" by the prior jury's verdict that the defendant had shot and killed the victim, which was in conflict with the trial court's later instruction permitting the jury to consider lingering doubt. (Id. at p. 1224.) The error is even more egregioushere, in that no instruction told the jury that it was appropriate to consider 1°! As in Gay, nothingin the record suggests thatlingering doubtat al the jury understood how to weigh the evidence that was admitted.(Jd. at p. 1225.) Instead, the record suggests quite plainly that the jury was confused: The jurors interrupted deliberations to requestclarification from the trial court, but could not ask for clarification on lingering doubtas did the jurors in Gay; the jury considering appellant’s penalty had not heard that instruction. Even so, the jury's question clearly indicated that there was doubt as to one crime. (10CT 2887; 20 CT 5638; 6RT 1316.) The trial court's response to this jury's question was less 31 Trial counsel argued lingering doubt (6RT 1285-1293), but the jury was also instructed in the language of CALJIC No.1.02 that the arguments of counsel are not evidence, and are overridden by the court's instructions. (10CT 2852; 6RT 1297.) 164 adequate thanthe responseby the judge in Gay, who simplyre-read the lingering doubt instruction and told the jury it was clear enough, despite evidence to the contrary from the jury. (Id. at p. 1226; see generally Bollenbach v. United States (1946) 326 U.S. 607, 612-613, 66S.Ct. 402, 90 L.Ed. 350 ["When a jury makes explicit its difficulties a trial judge should clear them awaywith concrete accuracy"].) In appellant’s case, the trial court sought the views of counsel, but then largely disregarded the agreed-uponlanguage, particularly the crucial word, "doubt." Again, the prosecutor acknowledgedthattelling the jury "yes" in responseto its question would be tantamountto a directed verdict. (6RT 1318-1319.) Thetrial court's instruction hadthe very effect that so concerned the prosecutor. Theerroris clear. As appellant arguedin his OpeningBrief, the court's instructions left no room for the jury to consider potentially mitigating facts — specifically, residual doubt that appellant was the shooterin one of the incidents. (See AOB pp. 170-214.) Consideration of lingering doubt was decisively removed from the case, and the evidence supporting that doubt was characterized as irrelevant to the jury's sentencing 165 decision. The jury wastold that (1) a critical aspect of the penalty phase defense — lingering doubt — wasentirely foreclosed to appellant by the decision of the prior jury and could not be considered; and (2) the jury could imposea sentence of death despiteits belief that one of the cases "containe[d] some doubt." The penaltyjudgment must be reversed becausethe instructions violated state law as well as appellant's right to a fair sentencing hearing and reliable penalty phase determination, as guaranteed by the Fifth, Eighth and Fourteenth Amendments. Because respondent cannot prove the error harmless beyond a reasonable doubt, the penalty judgment mustbe reversed. E. The Trial Court Erred in Failing to Inform the Retrial Penalty Jury that Galindo Had Not Testified Before the Original Jury, Which Found Reed Guilty of Both Murders but Failed to Reach A Penalty, Voting 7-5 in Favorof Life Respondent disagrees that the trial court erred in failing to inform the retrial penalty jury Galindo had nottestified before the original jury, which found appellant guilty of both murders but failed to reach a penalty, voting 7-5 in favor of life. (RB 71-72.) Respondent 166 is wrong. 1. The Issueis Not Forfeited Respondent contendsthis issue is forfeited because appellant was required to request a “pinpoint” instruction. (RB 71.) This issue does not involve instructional error, so respondent’s argumentis irrelevant. 2. Respondent Substantially Fails to Address Plaintiff’s Argument The Exclusion of This Information Violated Due Process (a) The Fact of the Prior Jury’s Deadlock Respondentsimply asserts, without explanation, that appellant has failed to provide any compelling reason to deviate from the reasoning of People v. Hawkins (1995) 10 Cal.4th 920 and other cases holding "the fact of a first jury's deadlock, or its numerical vote, is irrelevant to the issues before the jury on a penalty retrial.” (RB 71.) Appellant has provided a compelling reason for disclosure of this information in his case. Due process requires it. As appellant explained in his Opening Brief, a violation of the United States Constitution may occur whenever the procedures by which a state 167 determines whether the death penalty should be imposed on a defendantresults in an unfair hearing, or unfair proceedings. (People v. Crovedi (1966) 65 Cal.2d 199, 205.) Sentencing procedures should not create "a substantial risk that the [death penalty will] be inflicted in an arbitrary and capricious manner.” (Gregg v. Georgia (1976) 428 U.S. 153, at p. 188, 96 S.Ct. 2909, at p. 2932, 49 L.Ed.2d 913.) The Eighth and Fourteenth Amendments require that the jury not be precluded from considering any mitigating factors offered to show a basis for a sentence less than death. (Lockett v. Ohio (1978) 438 U.S. 586, 604.) This Court's holding in Hawkins that a first jury's deadlock orits numerical vote is irrelevant in a penalty retrial does not apply in the contextof the individualized consideration of appellant’s case, because the new jury was asked to determine penalty based on the prior jury’s guilt determinations, and was doing so with new defense evidence as to the weakest portion of the prosecution’s case —i.e., identification of the perpetrator. This information should have been part of the lingering doubt equation for the penalty jury in appellant’s case — because of his 168 individual circumstances — as a mitigating factor. (People v. Gay, supra, 42 Cal.4th 1195, 1218.) The defendantis entitled to adduce evidence to show his possible innocence of the crimes of which he has been convicted (People v. Terry, supra, 61 Cal.2d 137, 145) and argue his possible innocenceto thejuryas a factor in mitigation. (People v. Johnson (1992) 3 Cal.4th 1183, 1252.) There appears to be a conflict in the courts as to what“lingering doubt”is. In Franklin v. Lynaugh (1988), 487 U.S. 164, the United States Supreme Court held that"lingering doubts are not over any aspect of Wspetitioner's '’character,’ ‘record,’ or a ‘circumstance of the offense.’" (Franklin v. Lynaugh (1988) 487 U.S. 164, at p. 174.) Justice O'Connor concurred that '’[r]Jesidual doubt’ is not a fact about the defendantor the circumstances of the crime." (Franklin v. Lynaugh, supra, 487 U.S. 164, at p. 188.) At the same time, the high Court has held a capital defendant cannotberestricted to proof of statutory mitigating factors. (Hitchcock v. Dugger, supra, 481 U.S. 393, 398-399, 107 S.Ct. 1821, 95 L.Ed.2d 347.) This Court has recognized that, while a capital defendant has no federal constitutional right to have the jury considerlingering 169 doubtasto guilt in choosing the appropriate penalty, he has a statutory right to have a jury considerit. (People v. Gay, supra, 42 Cal.4th 1195, 1220.) Respondentignoresthe fact that any limitation bythestate as to what mitigating circumstances can be argued is prohibited by the Eighth and Fourteenth Amendments. (Lockett v. Ohio, supra, 438 U.S. 586, 604-605; Penry v. Lynaugh (1989) 492 U.S. 302; Eddings v. Oklahoma (1982) 455 U.S. 104.) Respondentalso ignores California Penal Code section 190.3, which provides “evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence.” (b) Respondent Substantially Fails to Address Appellant’s Argument That The Fact Galindo Did Not Testify Before The Guilt PhaseJury and Still Hungon the Penalty is a Mitigating Factor Respondentdismisses appellant's argument regardingthe failure to inform the second penalty phase jury that Galindo did nottestify at the guilt phase as (1) irrelevant and (2) forfeited because appellant’s counselfailedto elicit the information during Galindo's testimony. (RB 170 72.) Asto trial counsel's failureto elicit from Galindo thefact he did not testify at the first trial, it is highly likely any attempt to do that would have been ended upon the prosecutor’s objection the information wasirrelevant. If trial counsel was ineffectivefor failing to elicit the information, then that is an issue to be pursued on habeas. The judgment of death must be reversed. Vill. THE COURT COERCED A VERDICT AT THE PENALTY PHASE RETRIAL WHEN IT RECEIVED A VERDICT, DISCOVEREDDURINGTHE POLLING OFTHEJURYTHAT THE VERDICT WAS NOT UNANIMOUS, AND SENT THE JURORS BACK TO DELIBERATE WITHOUT PROPER INSTRUCTIONS AND ADMONITIONS Respondent disagrees that the court coerced a verdict at the penalty phaseretrial whenit received the jury’s verdict for death and discovered in polling the jury that the verdict was not unanimous, and then sent the jury back for more deliberations. (RB 72-76.) Again, respondent ignores the facts and distorts the law. A. The Issue is Not Forfeited Respondent arguesthe issue is forfeited for defense counsel’s 171 failure to object. (RB 73-75.) The cases upon which respondentrelies do not support respondent’s arguments. Respondentcites People v. Wright (1990) 52 Cal.3d 367, 415. In that case defense counsel failed to object to the court’sfailure to poll a juror for an indication of his agreement with the verdict. The court deemed the polling error waived. (Ibid.) All of the other cases respondentrelies upon for its waiver argument also have to do with polling errors. (RB 73.) The error appellant raises is jury coercion, not polling error. Appellant has not forfeited the issue. B. Appellant Has Not Raised Polling Error Respondent argues about “polling error.” (RB 74-75.) Appellant has notraised an issue of error in the manner in which the jury was polled. C. The Verdict Was Coerced 1. Respondent’s Contentions Respondent denies the verdict was coerced. (RB 75-76.) Respondent contends appellant’s argument is based on a faulty assumption that Juror No. 1 was the single holdout juror against a 172 death verdict, and that since the court stopped the individual polling after Juror No. 6, it is impossible from the record to determine how manyotherjurors had second thoughts abouttheir death verdict. (RB 75.) Respondentspeculates “it is equally possible that Juror No. 1 was not a hold-outjuror, but simply wanted to reassure herself about the momentouslife and death decision she was making by discussing the matter one more time” and concludesthe jury, including Juror No.1, wasfully aware of the unanimity rule becauseofthe jury instructions they were given, and the jury is presumed to havefollowed the court’s instructions. (RB 75-76.) 2. Respondent Substantially Fails to Address Appellant’s Argument Respondent, having mistaken appellant’s argument as having something to do with polling the jury, substantially fails to address the jury coercion argument. Appellant refers this Court to his Opening Brief at pages 215-217 for the standards to be followed whena trial court is confronted with the possibility of a hungjury. The question is whetherthetrial court pressured the jury to reach 173 a verdict whenit sent the jury back with the comment: "It appears we do not have a unanimousverdict. I'm going to return the verdict form to you andaskthat the jurors go back into deliberations, please. Thank you." (6RT 1322; People v. Proctor (1994) 4 Cal.4th 499, 539.) Respondent does not address the need for additional jury instructions uponreturning a juryto deliberations, arguing instead that standard jury instructions given prior to the start of deliberations suffice. (RB 75-76.) In this vein, respondentignores appellant's citation to People v. Keenan (1988) 46 Cal.3d 478, 534; United States v. Mason (9th Cir. 1981) 658 F.2d 1263, 1268; People v. Gainer (1977) 19 Cal. 3d 835, 852°; or People v. Wattier (1996) 51 Cal. App. 4th 948, 956 — cases that speak to the issue of jury coercion during deliberations. The court failed to caution the jury in this case — it simply sent the jury back for moredeliberations. Respondent ignores the fact that, instead of exploring the issue 32 This Court has since reexamined Gainer in People v. Valdez (2012) 55 Cal.4th 82, holding separate admonitions to majority and minority jurors after they declared impasse did not improperly encourage the minority to acquiesce. ([d. at pp. 162-163.) 174 whetherthe jurors believed further deliberations would be helpful, or giving the necessaryinstructionsto avoid pressure on the holdoutjuror or jurors, the court simply sent the jurors back without comment, clearly implying that a verdict must be reached. Respondentignores appellant’s discussion of People v. Wattier, supra, 51 Cal.App.4th 948. (See Appellant’s OpeningBrief at pp. 216-217.) Here, the court gave no cautionary instructions tailored to problems during deliberations. The judge merely stated the verdict must be unanimous, then returned the used verdict forms to the jury andtold it to continue its deliberations. (6RT 1322.) Respondent's speculation about whetheror not Juror No. 1 was the only holdout or undecided juror is irrelevant. The foreman presumably would not havenotified the court of the verdict had the foreman not believed the verdict was unanimous. The apparent holdoutjuror wentback to the jury room under pressure to acquiesce to the jurors who had chosen death. (See People v. Gregory (1989) 184 Ill.App.3d 676, 682 [Jury coercion found where, after a perfunctory sidebar with both counsel, the judge reminded the jury his previous 175 instructions were that its verdict upon any charge “must be unanimous,” then returned the used verdict forms to the jury and askedit to continue its deliberations].) Because the court in this case failed to give the jury any instructions whatsoever upon learning that they had reached a deadlock, the holdout juror could only surmise that she would eventually have to submit to the pressure of the majority to reach a verdict of death. This jury had already been directed to return a verdict of death without considering their doubts aboutthe validity of one of the convictions. The error was compounded in that the court instructed the jury in the language of CALJIC 17.41.1, which pointedly tells each jurorthat heor she is not guaranteed privacy or secrecy. That instruction assured the holdout juror that her words might be used against herand that candorin the jury room could be punished,further inhibiting speech and free discourse in a forum where "free and uninhibited discourse" was most needed. (Attridge v. Cencorp (2nd Cir. 1987) 836 F.2d 113, 116.) Respondent addresses none of these points. Given the requirement of heightened reliability in capital cases, 176 Appellant’s sentence must be reversed. IX. THE TRIAL COURT ERRED BY REFUSING APPELLANT’S PINPOINT INSTRUCTIONS THAT THE LAW DOES NOT HAVE APREFERENCE FORTHE PUNISHMENTOFDEATH AND THEJURYCOULD NOTCONSIDERTHE DETERRENT OR NONDETERRENT EFFECT OF THE DEATH PENALTY OR THE MONETARYCOSTS TO THE STATE Respondent disagreesthetrial court erred by refusing appellant's pinpoint instruction that the law does not have a preference for the death penalty and that the jury could not consider the deterrent or nondeterrenteffect of the death penalty or the monetary costs to the state. Respondent contendsbothof these instructions have repeatedly been rejected by this Court. (RB 76-77.) Appellant stands by his argumentsas set forth in his Opening Brief, and wishesto preserve them for federal review. X. THE PROVISION OF CALJIC 17.41.11 VIOLATED APPELLANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS AND TRIAL BY A FAIR AND IMPARTIAL JURY AND REQUIRES REVERSAL Respondentdisagreesthetrial court erred by instructingthe guilt and penaltyretrialjuriesin the language of CALJIC 17.41.1. (RB 77-78.) Respondentargues appellant’s contentionis foreclosed by this Court's 177 “express holding to the contrary” in People v. Engelman (2002) 28 Cal.4th 436. (RB 77.) Respondentarguesappellant forfeited his challengebyfailing to object to the instructionattrial. No forfeiture will be found where the court's instruction was an incorrect statement of the law, or the instructional error affected the defendant's substantial rights. (People v. Mason (2013) 218 Cal.App.4th 818, 823; § 1259 [“appellate court may ... review anyinstruction given, ... even though no objection was made thereto in the lowercourt, if the substantial rights of the defendant were affected thereby”].) Because the instruction was incorrect and misleading, and because there is risk that the instruction was misunderstoodor that it was used by asa tool for browbeating the holdout juror in this capital case, the error affected appellant's substantial rights. Appellant has not forfeited his right to assert this instructional error on appeal. In People v. Engelman (2002) 28 Cal.4th 436, this Court disapproved CALJIC No.17.41.1, but also concludedthat its provision does notviolate the federal constitution. Appellant’s trial took place 178 before Engelman wasdecided. Appellant maintains his position that instructing the juries in his case in the language of CALJIC 17.41.1 violated his rights under the Sixth and Fourteenth Amendments andthereforeraises the issue here in order for the Court to reconsider its decision in Engelman and to preservetheerrorfor review in federal court. (See AOB, pp. 226-229.) XI. APPELLANT'S RETRIAL AFTER THE ORIGINAL JURY FAILED TO REACH A PENALTY VERDICT VIOLATED HIS FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR JURY TRIAL, RELIABLE PENALTY DETERMINATIONS, FREEDOM FROM CRUEL AND UNUSUAL PUNISHMENT, DUE PROCESS AND EQUAL PROTECTION AS GUARANTEED BY THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSOF THE UNITED STATES CONSTITUTION Respondent contendsappellant's arguments regardingtheretrial of the penalty phase have already been decided by the courts and should be rejected. (RB 78.) Appellant maintains that California's death penalty schemeis an anomaly andis contrary to the "evolving standards of decency that mark the progress of a maturing society." (Trop v. Dulles (1958) 356 U.S. 86, 101.) The penalty retrial following the hung jury violated 179 appellant's federal constitutional rights to a fair jury trial, reliable penalty determinations, freedom from cruel and unusual punishment, due process and equal protection as guaranteed by the Sixth, Eighth and Fourteenth Amendmentsof the United States Constitution as well as state constitutional protections in article I, sections 1, 7, 15, 16, and 17 of the California Constitution. If this Court will not reverse appellant’s death penalty judgment on this basis, appellant wishes to preserve the issue for the federal courts. XII. THEPROVISION OF CALJIC NO.8.85, WHICH INCLUDED INAPPLICABLE FACTORS AND FAILED TO SPECIFY WHICH FACTORS COULD BE MITIGATING ONLY, VIOLATED APPELLANT’S RIGHTS UNDER THE FIFTH, SIXTH,EIGHTH,ANDFOURTEENTHAMENDMENTSAND REQUIRES REVERSAL OF THE PENALTY JUDGMENT Respondent disagrees the trial court erred by instructing the penalty phase jury in the language of CALJIC No.8.85. (RB 79.) Appellant wishesto preservethis issue for federal review should this Court reject it, and for that reason stands by the argument he presented at pages 235 through 243 of his OpeningBrief. 180 XII. THE PROVISION OF CALJIC NO. 8.88 DEFINING THE NATURE AND SCOPE OF THE JURY’S SENTENCING DECISION, VIOLATED APPELLANT’S RIGHTS UNDER THEEIGHTH ANDFOURTEENTHAMENDMENTSOFTHE FEDERAL CONSTITUTIONAND REQUIRES REVERSALOF THE PENALTY JUDGMENT Respondentdisagreesthetrial court's concluding instruction in this case, CALJIC No. 8.88, was constitutionally flawed, citing authorities previously rejecting the issue. (RB 79-81.) Appellant recognizes that this Court has rejected similar challenges to CALJIC No. 8.88 (see, e.g., People v. Coffman (2004) 34 Cal.4th 1, 124), but nevertheless has raised the issue here in order for the Court to reconsider those decisions and to preserveit for federal review. XIV. THE SPECIAL CIRCUMSTANCE OF MULTIPLE- MURDERFAILS TO NARROW THE CLASS OF PERSONSELIGIBLE FOR THE DEATH PENALTY AND THUS VIOLATES THE EIGHTH AMENDMENT Respondentargues “this Court has repeatedly rejected similar Eighth Amendment challenges to the multiple murder special circumstancein the past,” and appellant “offers no compelling reason requiring reconsiderationof this issue,” so appellant’s claim should be 181 rejected. (RB 81.) Otherwise, respondentfails to address appellant’s arguments. As appellant explained in his OpeningBrief, he raises the issue here in order for this Court to reconsider its previous decisions and to preservethe claim for federal review. Appellant, therefore, stands by the arguments he madein his Opening Brief, and respondent's brief does not require any further elaboration,since it does not address the substance of appellant's brief. XV. CALIFORNIA'S CRIMINAL JUSTICE SYSTEM IS TOO UNRELIABLE TO ALLOW THE IRREVOCABLE PENALTY OF DEATH TO BE IMPOSED Respondentdisagrees that California’s criminal justice system is too unreliable to allow the death penalty to be imposed. (RB 81-82.) As appellant explained in his OpeningBrief, he raises the issue here in orderfor this Court to reconsider its previous decisions and to preserve the claim for federal review. Appellant, therefore, stands by the arguments he madein his Opening Brief, and respondent's brief does not require any further elaboration, since it does not address the substance of appellant’sbrief. 182 XVI. CALIFORNIA'S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT'S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION Appellant has presented these arguments in an abbreviated fashion sufficient to alert this Court to the nature of each claim andits federal constitutional grounds, and to providea basis for the Court's reconsideration of each claim in the context of California's entire death penalty system. (See AOB pages276-311.) Should this Court reject these claims, appellant wishes to preserve them for federal review. XVII. THE METHOD OF EXECUTION EMPLOYEDIN CALIFORNIA VIOLATES THE FOURTEENTH AMENDMENT'S GUARANTEE OF PROCEDURAL DUE PROCESS AND THE EIGHTH AMENDMENT'S PROHIBITION UPON CRUEL AND UNUSUAL PUNISHMENTS Respondent contends appellant’s challenge to the method of execution is not cognizable on appeal because such a claim does not affect the validity of the judgment. (RB 85.) While appellant recognizes that this Court has rejected similar Eighth Amendmentchallengesto the California's execution procedures 183 (see, e.g., People v. Samayoa (1997) 15 Cal.4th 795, 863), he respectfully requests reconsideration and alsoraises the issue here to preserveit for federal review. XVUI. REVERSALIS REQUIRED BASED ON THE CUMULATIVE EFFECT OF THE ERRORS Respondent disagrees with appellant’s assessment of the cumulative error. Respondent contendsthere wasno error, and,to the extent there waserror, appellant has failed to demonstrate prejudice. Respondentalso argues that, whether considered individually or for their cumulative effect, the alleged errors could not have affected the outcomeof the trial. (RB 86.) Respondent fails to address the substance of appellant’s argument. Rather than repeat the argumenthere, appellantrefers this Court to pages 322-325 of his Opening Brief. The combined impactof the various errors in this case requires reversal of appellant's convictions and death sentence. 184 CONCLUSION Asappellant has demonstrated, his prosecution wasinfected by fundamental error. Appellant's convictions and death penalty must be reversed. Dated: December 16, 2013 Respectfully submitted, GAIL HARPER Attorney for Appellant ENNIS REED 185 CERTIFICATE OF WORD COUNT I, Gail Harper, counsel for appellant, certify pursuant to the California Rules of Court, that the word count for this documentis 34,197 words, excluding the tables, this certificate, and any attachments. This document was prepared in WordPerfect X3,and this is the word count generated by the program for this document. I declare under penalty of perjury underthe lawsof the State of California that the foregoing is true and correct. Executed at San Francisco, California, on December16, 2013. GAIL HARPER Attorney for Appellant 186 APPENDIX RESPONDENT'S OMISSIONS AND DISTORTIONSOF FACT A. THE MURDER OF AMARILIS VASQUEZ AND ATTEMPTED MURDER OF CARLOS MENDEZ 1. Respondent Omits Material Facts About the Shooting Respondent omits the followingfacts. Mendeztestified the man approachinghis truck with thepistol was walking “a little slow.” (3RT 468-469.) According to Mendez, the weapon wasabout 10 to 12 inches long. (3RT 469, 488-489.) The man stood, pointing the pistol at Mendez andhis wife for three seconds, and then, without saying anything, started shooting. (3RT 470-472, 492.) It was dark out when the shooting took place exceptfor a light in the parking lot and somestreetlights. (RT 489-490.) Mendeztestified in a contradictory fashion the shooter was both about 22 feet away from the truck when hestarted shooting, and Mendez did not know where the man was whenhestarted shooting. (3RT 476-478; People’s Exhibit 14.) Mendeztestified that from the time the man walked from the corner up to the point where he started shooting, Mendez was no longer looking at him because Mendez wasstarting the truck. (3RT 471.) Mendez was not looking at the man when hestarted shooting; but he heard a “big noise” and the window broke and Mendez was shot in the right cheek. (3RT 472-473, 492.) Amarilis did not react or say anything when shot. (3RT 473.) Because Mendez wastrying to escape, he did not see what had happenedto his wife. (@RT 473.) He movedabout15 feet away from the truck, screaming andyelling. (8RT 474.) When Mendez returnedto the truck, he saw only the passenger- side window wasbroken. (3RT 478.) Mendeztestified his state of mind immediately after witnessing his wife being shot and being shot himself was “out ofthis world, close to death,” and hefelt dead and wascrying. (3RT 493.) 2. Respondent Distorts What Mendez Told the Police Immediately after the shooting, Mendez described the shooter to police as a “male black with a black jacket.” (3RT 499, 501.) Later that night Mendez described the shooter in two separate interviews with -ii- Detective Paiz as a black male about 5'8" to 5'11" in height, 20 to 25 years old, clean shaven, short black hair, wearing a black jacket and black pants” (3RT 505), and as a male black adult, 25 years old, wearing black pants and a black jacket, clean shaven, with short hair, 5'11", 150 to 180 pounds, with a medium complexion. (3RT 581-582.) The admonition Detective Paiz gave Mendez before showing him the photographic lineup was in English — not Spanish. (3RT 479-480.) Reed wasthe only bald individual in the photo-lineup. (3RT 480.) Mendeztestified the most distinctive thing about the man with the gun washis bald head. (3RT 490.) Respondentstates Mendez: “described the gunmanattrial as an African-American man, having a shaved bald head and a "5 o'clock shadow"orlight beard, and wearinga black t-shirt.” (RB 2-4.) To the contrary, Mendeztestified he remembered what the man waswearing at the time of the shooting, but when asked what that was, he said, “Uh, you know,I really — I rememberreally his face. You know. But the clothing that he was wearing, you know,I didn’t putthe attention right away, becauseat that time when you got scared, you know, you -iii- see their — or his face. You know. But he waswearinglike a black... T-shirt.” (3RT 490.) Whenaskedif the shooter was wearinga black T- shirt, Mendez said: “Like a—a-—I really —I can’t rememberpretty well, but I remember his — his face.” (3RT 490.) At trial, Mendez was impeachedwith his preliminary hearing testimony that the man was wearinga white shirt. (3RT 491.) When asked again what the man was wearing, Mendez explained he had been “close to death,” and only saw the man’s face and thepistol; he “didn’t have time to look at him.” (3RT 497.) Mendez also testified he saw the gunman for several seconds. (3RT 491-492.) Mendez testified he did not “put attention with his clothes, because. .. | was afraid, so I saw his face and the gun.” (3RT 492.) Attrial Mendez testified he remembered the shooter’s shaved bald head and the man’s eyes. (3RT 494-495, 497.) On cross- examination Mendez testified he could not remember whether the shooter had a beard or a mustache, then he testified the man did not have a beard or a mustache. (3RT 495.) Mendez picked a photograph from the lineup, and then he saw -iv- in the live lineup the man he hadseen in the photographic lineup. (3RT 493-494.) Mendez testified he could identify Reed in court because Reed’s face is the same face he saw in the photograph. (3RT 495.) Mendezis Hispanic; the shooter was black. (3RT 495.) 3. The Coroner’s Testimony Respondent incorrectly states Amarilis was shot twice in the head. (RB 4.) There was only a single gunshot, with an entry wound and exit wound. (3RT 544-545.) Dr. Chinwah could not estimate the distance of the firearm from the person who wasshot because there wasan intervening object (the glass) between the muzzle of the gun and the skin. (RT 545-546.) The fatal bullet was traveling from right to left, slightly front to back and downward. (3RT 546.) 4, The Police Investigation Officer Childs arrived at the scene around 8:15 p.m. (3RT 449- 451, 457.) The sun was down. (3RT 457.) Mendez wasexcited because his wife had been shot. (3RT 452, 458-459.) Respondent omits part of Officer Lewis’ interview with Mendez at Tacos el Unico that evening, before Mendez was taken to the hospital. (See RB 3, fn.3, citing 3RT 498-499.) Lewis testified Mendez was “very, very upset, crying,” he was bleeding, and the paramedics had not worked on him. (3RT 500.) This was the only time Officer Lewistalked to Mendez. (3RT 502.) At the time Paiz interviewed Mendezat the hospital, Paiz did not knowif Mendez had beennotified of his wife’s death.RT 504.) Paiz wrote down Mendez’s description of the shooter, and later typed up the description in his report. (3RT 504-505.)' Respondent omits the fact Reed is 5'6" tall and weighs 130 pounds. (1CT 2 [arrest warrant in confidential envelope].) B. THE MURDER OF PAUL MORELAND AND ATTEMPTED MURDER OF ROY FRADUIE 1. The Shooting Respondent omits Fraduie’s admission oncross to drinking Olde Respondentomits Detective Paiz’s testimony on cross-examination that he interviewed Mendez the eveningafter the shooting at Martin Luther King emergency room. At that time Mendez gave Detective Paiz a description of the gunman as between 5'8"to 5'11"in height. (3RT 515.) Mendezdid not give a weightas part of the description. (3RT 515.) -vi- English 800 Malt liquor “half a day,” on the day of the shooting, and Fraduie’s impeachmentwithhis preliminary hearing testimony he was drinkingall day, until nearly 11 p.m.. (RT 393-394, 398-399.) Respondentomits Fraduie’s testimony thatatfirst the man had the butt of the rifle on his shoulder, holding the trigger guard with his right hand,that part of the stock with the frame areaor the back end of the barrel resting on his right shoulder, pointing it backwards behind his head. (3RT 376-377.) As they walked by the man said something directly to Moreland, but Fraduie could not hear what he said. (3RT 377.) Fraduie and Moreland werealready past the duplex when Fraduie heard, butdid notsee, the rifle fired. (3RT 377.) Asked how he knew the manshotupintothe air, Fraduietestified: “Cause it didn’t hit nothing. Because he shot upin the air, and then he brought it down and start shooting. Then he start shooting at us. We hadstart running.” (3RT 377-378.) Fraduietestified he did not see the man bring the gun down. “No, I didn’t pay no attention. I wasn’t trying to see whenhewasbringing it down.I wastryingto get out of dodge.” (3RT 378.) -Vil- After Fraduie started running, he never looked back at Moreland. (3RT 380-381.) Fraduie did not actually see Moreland get shot; he just saw aman holding a gun. (3RT 392.) After the shot in theair, there was oneshot at Fraduie, and then Fraduie heard three or four more shots after about twoor three minutesof silence. (RT 381.) AlthoughFraduietestified he got a ride backto his uncle’s house that night and his cousin wentto tell Moreland’s father Moreland had been killed (RT 399), respondentasserts “Fraduie did not contact the police aboutthe shooting because he did not know whether Moreland had beenkilled.” (RB 7.) Respondent omits Fraduie’s admission he “knew [Moreland] probably got shot.” (RT 400.) Fraduie did not have any contact with the police for several monthsafter the shooting. (3RT 399-400.) 2. Fraduie’s Statements to the Police Respondentomitsall of the following facts: Fraduie was unable to describe the shooter when Detective Paiz first interviewed him in April of 1997. (3RT 383-384; 391-392.) Despite his inability to describe the shooterto police, at trial Fraduie testified the person “had low cut -Vili- hair, abouta little shorter than mine,” “like a quo vadis” and “like an east coast haircut, real low” —- meaning “real short.” (3RT 392-393.) At trial Fraduie described the person with the gun as a black man, whose complexion was “in between colors, about my complexion, buta little — abouta lighter shade — about a shade dark.” (3RT 394.) The man with the gun did not have any facial hair, and was not wearing hat. (3RT 397.) Fraduie could not rememberthe man’sclothing. (3RT 397.) 3. The Photographic and Live Lineups Fraduie denied any confusion, but admitted he did not recognize Reed immediately. (3RT 387.) Fraduie testified that at the live lineup he saw the person he had seen in the photographic array. (3RT 393. 4, The Police Investigation Respondentnotesinvestigators saw a motion-activated security light directly over the body (RB 8), but omits the fact Officer Betor did not notice the light going on and off while he wasthere. (3RT 363, 407.) Detective Branscomb offered his opinion the place where Moreland was lying was “well lit,” but he did not know how well-lit the -1X- intersection was. (3RT 409.) 5. The Chico McLaine Incident Respondentobscuresthe fact it was approximately 24 hoursafter the Moreland shooting — and in an unrelated matter — that Officer Betor and other officers chased Chico McLaine into a duplex just slightly northwest of the homicide scene on Glencoe Street where Moreland’s body had been found. (See RB 9; 3RT 355-358; People’s Exhibit 1; People’s Exhibit 6.) Lieutenant Wright wasthe first to enter the building, and Officer Betor followed to see Lieutenant Wright detaining McLainein the living room of the house. (3RT 356, 367.) Onceinside, Officer Betor began checking the roomsfor other people, and he found one other man inside.? (3RT 356.) The man was not arrested. (3RT 357.) After clearing the house of people, Officer Betor 2 The police report Officer Betor prepared following the incident does not mention anything about anyone other than Chico McLainebeing in the house. (3RT 365-366.) Lieutenant Wright broughtthat “mistake” to Officer Betor’s attention during the last couple of monthsbeforetrial. (3RT 367.) Officer Betor did not knowif the second man wastaken to the police station. (RT 366.) Neither man wasidentified by the police as Reed. foundthe rifle and magazine notedin the record. (3RT 357-358, 364.) Officer Betor did not have any idea whetherthe gunorthe people in the house had anything to do with the homicide. (3RT 358.) Officer Betor booked the gun andtheclip into evidence, and eventually the gun and casings weresentto the Sheriff’s lab to determineif the casing matched. (3RT 358-360; People’s Exhibit 5.) Officer Betor held therifle, the clip and the ammunition for fingerprint analysis. (3RT 368.) Officer Betor did not make any attempt to determine wholived at the duplex. (3RT 370.) 6. Officer Pollard and the F.I. Card Officer Pollard did not enter a building when he stopped Reed to fill out the F.I. card, and he could not remember who else was present. (See RB 8; 3RT 417-418.) Officer Pollard filled the card out based on the information Reed gave him or what wasonhis California Identification card. (3RT 414-415.) Officer Pollard noted that Reed weighed 122 pounds. (3RT 419.) 7. Detective Paiz’s Investigation Detective Paiz was never at the scene on the night of the -XI- Moreland murder, but he later assumed responsibility for investigating the case. (3RT 508.) Detective Paiz found Fraduie by walking around the streets, asking people who were in the area. First he got a nickname, and then he asked people whothat person was. Eventually he got an address, and he contacted Fraduie the same day. (3RT 508- 509.) Although respondent notes Detective Paiz’s first contact with Fraduie was at Fraduie’s grandmother’s house in Bellflower, respondent omits the facts Detective Paiz could not rememberthestreet or the date - or even the month of that first meeting.” (3RT 514.) Detective Paiz did not prepare a report regarding that contact. (3RT 514-515.) Detective Paiz did not take a photographic six-pack with him to the house, but told Fraduie to cometo the police station to view one. (3RT 514.) 8. The Coroner’s Testimony Respondentomits the fact Dr. Chinwah could not determine the 3 Respondentstates, “In April 1997, Detective Paiz contacted Fradiueat his grandmother's housein Bellflower. (3RT 392, 513-514.)” There is no indication in the pages cited that Paiz first contacted Fraduie in April of 1997. | -xil- order in which the nine woundswereinflicted to Moreland. (3RT 547.) Bullet fragments were recovered from Moreland’s chest area, abdomen and theleft forearm. (3RT 540.) The autopsy revealed Moreland had ingested alcohol, cocaine and phencyclidine (PCP) in the hours preceding his death, contradicting Fraduie’s story. (RT 546-549.) 9. The Bullet Hole in the Street Sign Respondentomits someofthe facts regarding the bullet hole in the street sign. At the prosecutor’s request, during trial Detective Paiz wentto the scene of the Moreland murder and observeda bullet hole in the no-parking sign. (3RT 532-533.) Detective Paiz testified he could tell the bullet hole in the sign was not recent because it was rusty. (3RT 534.) On cross, Detective Paiz admitted the prosecutor located the bullet hole the same day the prosecutor asked him to look at the sign and directed Detective Paiz to photograph it. (3RT 534.) C. THE JOINT INVESTIGATION OF THE VASQUEZ AND MORELAND MURDERS Respondent omits the following facts: Paiz transported both Fraduie and Mendez to the live lineup. (3RT 511.) Fraduie and -xili- Mendez were separated whenthe sheriffs brought out the six people in the lineup. (3RT 511-512.) Paiz testified “they were separated from everyonein front at both endsof the chairs.” (3RT 512.) D. DEFENSE CASE Respondent omits the fact Foster Slaughter workedfor the City of Long Beach. (RB 11-12; see 3RT 564-565.) Respondent distorts Slaughter’s testimony about what he saw. Mendez was jumping up and downoutsideof the truck near the gate of the taco stand, and the shooter was standing “way in back of the pickup truck,” on the otherside of the truck in back of the bed, shooting at Mendez towards Long Beach Boulevard. (3RT 569-572.) Slaughter heardthree or four shots, got the womencloserto the Zodiac building, and then looked over and saw the shooterfiring at Mendez. (3RT579- 580.) About 10 to 15 seconds passed betweenthe time Slaughterfirst heard the gunshots and the time he saw the man with the gun behind the pickup truck. (3RT 572-573.) Respondent omits muchofSlaughter’s description of the shooter. -X1V- The man waswearing blue jeans. (3RT 573.) The hat wasnotflat and did not have a brim or anylettering on it. (3RT 578.) It was not a baseball cap, but a hat that came down to the man’s eyebrows and coveredpart of his ears. (3RT 578.) The man’shair stuck out under the hat. (3RT 578.) The shooter had a “natural” or a Jheri curl, not a close haircut or a shaved head. (3RT 577, 580.) The man hadnofacialhair, just sideburns that were “normal.” (3RT 580.) It was difficult for Slaughter to estimate the shooter’s weight because the shooter was wearing a bulky black coat. (3RT 574, 578.) Slaughter could notsee the man’s shirt or his upper body. (3RT 578-579.) The coat appearedto be zipped up. (3RT 579.) Slaughter is 6'3," and at the timeof the incident weighed 192 pounds. (3RT 573.) Slaughter only saw the shooter'sface from the side. (3RT 574.) Reed was asked to stand up in court, and Slaughtertestified Reed lookeddifferent from the man whowasdoingthe shooting, as the shooter was“thicker than him in arm-wise,” or the shooter looked like he had beenlifting weights, and wassolid in the arms. (3RT 574.) What wasnotincludedin the defense case was the testimonyof -XV- Joe Martin Galindo, whom the defense could not call as a witness because Galindo wasin an undisclosed place performinghis military duties, and because Judge Cheroske refused to continue the trial to accommodate the defense. Galindo described the shooter as "stocky" (6RT 1129-1130, 1132-1137) andat least astall as the 6'1"tall Galindo, or taller (6RT 1131-1132), and insisted the 5'6", 130-pound bald Reed was not the shooter at Tacos el Unico. (6RT 1130-1131.) Galindo’s testimony largely corroborated Slaughter’s testimony and description of aman whostood 6'1" and weighed 190 pounds (3RT 588-589), and the earliest descriptions given by Mendez of a black man who was about 5'8" to 5'11" in height with short black hair (SRT 505), weighing 150 to 180 pounds. (3RT 581-582.) E. REBUTTAL Respondentomits crucial testimony of Officer Roller. Officer Roller did not showhis police report with the abbreviated descriptionof the shooter to Slaughter after Officer Roller preparedit. (3RT 588.) Officer Roller denied Slaughter told him the shooter weighed 190 -XVI- pounds, but when showna follow-up report with a suspect description, Officer Roller could not rememberwherehe got the description, butit said: “male black with black hair, unknown color eyes, six-foot-one, 190 pounds, age 30, close-cut hairstyle, medium complexion.” (3RT 588- 589.) F, PENALTY PHASE 1. PROSECUTION CASE (a) The Vasquez Murder Respondent omits the following material facts. Mendeztestified forthefirst time at the penalty phaseretrial that he told the mannotto shoot, offering him the truck or money; but then Mendez immediately contradicted himself, testifying the window on his wife’s side of the car was up and he did not say anything to the man, butjust gestured at him. (SRT 1013-1014.) Mendez did not hear the man say anything, and other than raising the gun, the man did not make any gestures. (SRT 1014.) Then the manstarted firing. (SRT 1015.) Respondent omits Mendez’s testimony on cross-examination the -XxVIii- shooting was traumatic, he was undera lot of stress that night, hefelt “out of this world,” and everything happened very fast. (SRT 1024.) Thefirst thing he saw wasthe gun; he saw the shooter’s face and the pistol. (SRT 1024.) Mendezalso testified he did notreally have time to see what the shooter was wearing, never looked to see what the shooter was wearing, and saw only the face and the pistol. (SRT 1024- 1026.) Mendez felt he wasclose to death, and did not have timeto see, explaining, “You just try to ... go away from that place.” (SRT 1025.) He could not describe the shooter’s clothes. (5RT 1025.) At first Mendez denied describing the shooter as 5 feet 11 inches and 150 to 180 pounds, and then admitted perhaps he did. (SRT 1026-1027.) Mendez complainedthat at the time of the shooting the “police asking too many questions and too many people.” (SRT 1027.) Mendeztestified the shooter was a “skinny, skinny guy,” a bald guy; Mendez claimed he remembered the man’s face exactly and the gun. (SRT 1025, 1027.) (b) The Moreland Murder Respondent omits the fact that, contrary to his guilt phase testimony, Fraduie testified he and Moreland got together at around -xvili- noon.* (5RT 1044, 1055.) Fraduie denied using PCP that day, and testified if Moreland smoked PCP that day, he did not see him doit. (SRT 1055-1056.) Fraduie identified Reed in court as the man standingby the fence with the gun, although Fraduie admitted he did not pay much attention to that man. (SRT 1049, 1058.) Fraduie had neverseen the man with the gun before, and could not describe what the man was wearing. (SRT 1057, 1063.) When the shooter spoke to Moreland, they did not stop, and there was no argument. (SRT 1057.) They heard a gunshotupin the air and Fraduie told Moreland, "Come on, man,let's start walking fast." (SRT 1050.) They started to run, then Fraduie looked back and the shooting started. (SRT 1050.) Respondentomits the contradictions in Fraduie’s testimony. At the penalty phase Fraduietestified he looked back and "seen him come downbringing the gun down"and that was when hetold Morelandto start running. (SRT 1051.) At the guilt phase Fraduietestified he did 4 During the guilt phase hetestified they first got together at about 5 that afternoon. (3RT 372-373.) -X1X- not see Reed bring the gun down. "No, I didn't pay noattention. I wasn't trying to see when he wasbringing it down. I wastryingto get out of dodge.” (3RT 378.) Respondent omits Fraduie’s admissionthefirst time he had ever told anybody about Moreland slumping down as he ran was his testimony at the penalty phase. (SRT 1060.) Respondent omits Fraduie’s contradictory testimony about the numberand timing of gunshots. At the penalty phase Fraduietestified he heard oneshotin the air, and then four more shots, and then there was a gapoffive or ten seconds betweenthefirst group of shots and the second group of shots. (5RT 1053.) At the guilt phase Fraduie testified the three or four additional shots occurred after about two or three minutes of silence. (ORT 381.) Respondent also omits Fraduie’s contradictory testimony about whetheror not he and Morelandran after the shooting started. First he testified he and Moreland continued walking downthe street, and heard a gunshot and then ran. (SRT 1058.) Later Fraduie changedhis testimony: "Naw, westarted jogging. We didn't run." (SRT 1060.) -XX- Respondentalso omits Fraduie’s testimony that after he got to the nursery, he heard three or four more gunshots. (SRT 1059-1060; RT 1062.) The second gunshothit the pole as Fraduie was turning the corner. (SRT 1061-1062.) Respondent omits all of Fraduie’s testimony abouttherifle. Fraduie said the rifle presented in court wassimilarto therifle he saw the night of the shooting. (SRT 1063.) He did not see a handgun. (SRT 1063.) When asked to describetherifle, Fraduie testified "What I'm gon’ do? Stand there and look at the gun andtry to get all the details aboutit? Shit, you crazy. I don't know.” (SRT 1063-1064.) The rifle did not have a bayonetor a strap on it. (SRT 1064.) Respondentomits Fraduie’s admissionhe had"started to" drink before his testimony. (5RT 1063.) Respondentomits the contradictions in Darby’stestimony. At the penalty phase Darbytestified he heard four gunshots, then there was a pause for a minute or two. (5RT 1037, 1040.) At the guilt phase Darby hadtestified there was a gap of five to ten seconds. (3RT 524-525.) Contraryto his guilt phase testimony, Darbystated he looked -XX1- outside after the shooting and saw just the bodyin the driveway. (SRT 1041.) Darby did not go outside and did notcall the police. (SRT 1040- 1041.) Respondent omits the discrepancies in Detective Piaz’s testimony. (RB 16.) Regardingthe bullet hole in the signpost, Detective Piaz offered his opinion that “based on the metal of the signpost” the bullet was moving in a southern direction. (SRT 1067.) At the guilt phase Detective Paiz had testified the bullet was moving in a "southwesterly" direction. (3RT 533-534; People's Exhibits 18-A and 18-B.) Respondent omits Detective Paiz’s testimony he couldtell the bullet hole in the sign was not recent because it was rusty, and his admission he had no wayoftelling how old the bullet hole was. (SRT 1067-1068.) The signpost is on the southwest corner of the street, between the driveway area of that house and the corner. (SRT 1068- 1069.) Detective Paiz did not try to line up the Glencoe duplex area with the signpost area. (SRT 1069.) Respondent entirely omits Officer Betor’s penalty phase testimony about chasing Chico McLaine into a house in the same -xXXxli- generalarea 24 hoursafter the Moreland murder, and his new claim he wasthefirst officer inside. (SRT 1080-1081, 1083; People’s Exhibit 6.) At the guilt phase Betortestified Lieutenant Wright wasthefirst in. (3RT 356.) Respondent also omits Betor’s testimony that once he was in the building, he began checking the rooms and he found one other person inside besides the suspect they were chasing — a male. (SRT 1081.) This person was neverlinked to Reed in any way. Respondent omits the facts that Moreland’s blood alcohollevel tested at 0.07 percent, and if the levels of PCP, cocaine and alcohol in his blood wereclose to the level of his intoxication at the time of his death, Moreland would have had some impairmentof judgment and reaction time and coordination. (SRT 1112-1113.) Respondent also omits the following facts. The alcohol and phencyclidine and cocaine had separately intoxicating effects. (SRT 1113.) Phencyclidine causes stimulation of the sympathetic nervous system and can cause people to be excited. (SRT 1113.) It can affect their judgment and behaviorin various ways. (5RT 1113.) PCP can stay in a person’s system for hours or days. (SRT 1114.) Moreland had to have consumedthe cocaineless -XXilI- than four hours before his death. (SRT 1115.) 2. DEFENSE Respondent omits the following facts: Joe Martin Galindotestified he saw a muzzle flash in addition to hearing gunshots. (6RT 1127-1129.) He returnedto his porch in time to see the shooter running toward him. (6RT 1128-1129.) Galindo disavoweda statement appearing in Officer Childs' police report to the effect that Galindo saw two men running from the parking lot. (6RT 1133-1134.) The man with the gun was alone. (6RT 1132-1134.) After running past Galindo, the man ran aroundtheside of the house on the Northwest corner of Glencoe and Temple. (6RT 1135-1136.) The shooter ran past Galindo at a distance of about 53 feet, and Galindo saw he was“stocky” and was wearing dark colored pants, a checkered shirt worn outside his belt, and a black baseball cap. (6RT 1129-1130, 1132-1137.) Galindo could notrecall telling a police officer the shooter was wearing a long, black jacket, although a police report indicated Galindo had included sucha jacket in his description. (6RT 1134.) -XXIV- Respondent minimizes the differences between Reed and the shooter Galindo saw at Tacosel Unico, and the certainty with which Galindo expressedhis belief the prosecutor had the wrongperson. (See RB 17-18.) Not only did Galindo state Reed is smaller than the man he saw; he declared Reed wasnot the shooter at Tacos el Unico. (6RT 1130-1131.) Respondent minimizesthe stresses and trauma Reed experienced growing up. Reed was the youngestof four children, but his siblings were by another father, James Harris, who died. (6RT 1217.) His parents’ relationship was strained in part because his father did not workand wasunfaithful to Beatrice. (6RT 1218-1220.) They separated before Reed was two years old because the senior Ennis Reed had fathered a child by another woman. (6RT 1218.) Reed and his father did not havea father-son relationship; although Reed's father would call and promise to comesee him or to give him one thing or another, he never kept his word. (6RT 1218.) Respondent also minimizes the trauma Reed experienced through his mother, Beatrice. (RB 18.) Although Beatrice was not -XXV- abusive, she wasnotas close to Reed as she wasto her daughters. (6RT 1219.) In addition to being hospitalized when she was seven months pregnant with Reed, Beatrice was given outpatient treatment for another 60 days. (6RT 1220.) Beatrice has suffered from untreated, recurring periods of depression since then. (6RT 1220-1221.) Ms.Churchill continued to see Reed as he grew up,usually at his home. (6RT 1225.) At home, Reed wasvery quiet, but when they were alone he would talk with her and he had a pleasant demeanor. (6RT 1226.) Reed wasalways a clean person, and he kept his room neat and clean, unlike his siblings. (6RT 1226.) No one ever hadto tell Reed to washhis clothes or to clean up his room. (6RT 1226-1227.) When Reed wasin his teens he spent sometime at a juvenile camp, and Ms. Churchill took Beatrice there at least twice to visit him. (6RT 1225-1226.) Once Reed wasoutof his teens, he was considerate toward Ms. Churchill. (6RT 1227.) He would dropby her house in Fullerton and unfailingly ask if there was anything he could dofor her, like clean up her backyard or do some heavylabor. (6RT 1227.) He was always a -XXvI1- very, very considerate person. (6RT 1227.) Ms. Churchill has never witnessed any uncontrolled periods of anger or problems with Reed's temper, or other behavior problems. (6RT 1227.) He has always been quiet or withdrawn. (6RT 1227.) When Ms. Churchill was with him, Reed wasa fine, personable young man. (6RT 1228.) Respondent omits the details of Reed’s learning disability and downplays the magnitudeof his failure in school. (RB 18.) Reed attended Our Lady of Victory elementary school in Compton. (6RT 1222-1224, 1227.) In kindergarten and the first three grades, Reed would not pay attention. (6RT 1222.) He would lose his train of thought andfail to respondto his teachers. (6RT 1222.) Reed's aunt, Ms. Churchill, discussed his problems with his mother, and they tried to get him tested through the Compton School District. (6RT 1225.) Althoughthe schooldistrict agreed to test Reed, he was never formally tested for learning disabilities. (6RT 1225.) He was alwaysan outsider. (6RT 1222.) Reed’s mother, Beatrice, enrolled him in the Sheenway School - a private, independent, nonprofit college preparatory school — as a -XXVIi- seventh-grader, hoping he would get more attention there, but that did not seem to help. (6RT 1160-1161, 1169, 1222.) He only lasted there about a year. (6RT 1160.) The school tested Reed in order to plan his educational program, giving him series of questions to answer. (6RT 1165; Defense Exhibit D.) Reed’s response to the question, “Whyis education important?” was “Youto it have.” When asked to respond orally, he said, “So I can live on my own.” (6RT 1165.) The second question was: “Why am [important.” He wrote: “I important.” (6RT 1165-1166.) The third question was: “Why is my mother important?” He wrote: “Yes, because is my mother.” (6RT 1166.) When asked to respond orally, he said: “She helps me in whatever I need help in.” (6RT 1166.) The last question was: “The following are things I want to accomplish in school.” He wrote: “To be better.” He also said, “To learn,” but he could not write that. He said, “To learn, and to get a job in computer, in sports.” (6RT 1166.) Reed wasnot performingto his grade level, but Ms. Sheenfelt he wantedto, so she discussed his performance with Beatrice. (6RT 1167.) The school required that the parents participate, but Beatrice was -XxViil- unresponsive, so the school placed her on probation because it was “very difficult ...to... establish some type of rapport with heras to the importance of Ennis’ education.” (6RT 1167.) Beatrice wouldcall but would not attend meetings, and Reed had novisible support system. (6RT 1167-1168.) Beatrice would occasionally come to the school, but not as requested, andsherefusedto participate in parenting classes. (6RT 1168.) Reed was assigned homework every night, but he failed to complete his assignments. (6RT 1170-1171.) He would sometimes cometo schoolearly andtry to get his homework donewith help from the staff, but he was frequently absent and tardy. (6RT 1171.) Initially Reed wasreally interested in school, and he wasreally eager, but he progressively becamedisinterested andfailed hisclasses. (6RT 1171.) He would give his teachers a hard time, and then he was suspended, and ultimately expelled to home study, which required parental participation. Hefailed. (6RT 1171-1172.) Reed exhibited behavior disorders. (6RT 1172.) In the second half of the school year he wasoffensive to the teachers, attempted to -XX1X- fight, and was disrespectful to the girls, and “really disrespectful to himself.” (6RT 1172.) Reed wasnot getting support at hometo see him throughhis rough times. (6RT 1172.) Beatrice did not even complete the enrollment forms, did not complete the form for Reed’s records from previous schools, and did not contribute to the regular screening. (6RT 1173.) Parents were required to pay the tuition and do volunteer work, but Beatrice did not pay all of the tuition. (6RT 1174.) The students were required to wear uniforms, but Reed was constantly out of uniform, which wasdisruptive. (6RT 1174-1175.) Reed’s motherdid not provide him with the proper uniform and clothing, or PE equipment. (6RT 1175.) Reed stayed at the Sheenway School for one year, performing scholastically below the 7th grade level. (6RT 1168-1169.) Because Reed performedat a 3rd or 4th gradelevel, he was not promotedto the 8th grade, and the school requested he attend summerschool. (6RT 1169-1170; Defense Exhibit E.) Reed failed to attend, and dropped out of school altogether when he was 13 or 14. (6RT 1224-1225.) -XXX- 3. REBUTTAL Respondent omits Mendez’stestimony the shooter had a shaved bald head and wasnot wearing a hat or a jacket of any kind. (6RT 1200-1201.) The man was wearing a T-shirt and pants, but Mendez could not rememberthe color. (6RT 1201.) In the seconds he had to observe the shooter, Mendez saw only the man’sface andthepistol. (6RT 1201.) But when interviewedat the sceneof the shooting, Mendez said the shooter wore a black jacket, and Mendez described the direction in which the man ran. (6RT 1187-1189, 1191.) Although respondentdescribes Officer Childs’ testimony that on the night of the shooting Joe Galindo described two suspects, respondent omits Galindo’s denial he said any such thing to Childs. (6RT 1133-1134, 1205-1207.) -XXXI- CERTIFICATE OF MAILING I herebycertify that I mailed a true copy of the foregoing to the following personsat the following addresses on the 16th day of December, 2013: William Shin, Deputy Office of the Attorney General 300 South Spring Street Los Angeles, CA 90013 Scott Kauffman,Staff Attorney California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105 Ennis Reed H55273 San Quentin State Prison San Quentin, CA 94974 The Hon.John J. Cheroske, Judge c/o Clerk, Superior Court 111 North Hill Street Los Angeles, CA 90012 John B. Schmocker Attorney at Law 4017 Long Beach Blvd. Long Beach, CA 90807-2686 Executed underpenalty of perjury at San Francisco, California, this 16th day of December, 2013. GAIL HARPER